LEGAL WORKS BY LEONARD A. JONES A TREATISE ON THE LAW OF MORTGAGES OF REAL PROPERTY. Fifth Edition revised and enlarged. 2 vols. 8vo, about 1,UUU padres each. Price, $12.0(J net. A TREATISE ON THE LAW OF CORPORATE BONDS AND HORT- GAGES. Being Second Edition, revised, of "Railroad Securities." 1 vol. bvo, 6S0 ijages. Price, Si,tj.W iut. A TREATISE ON THE LAW OF MORTGAGES ON PERSONAL PROP= ERTY. Fourth Edition, revised and enlarged. 1 vol. 8vo, !)U0 pages. Prices, $6.00 net. A TREATISE ON THE LAW OF PLEDGES, including Collateral Se- curities. 1 vol. Svo, 634 pages. Price, $6.00 net. A TREATISE ON THE LAW OF LIENS. Common Law, Statutory, Equitable and Maritime. Second Edition, revised and enlarged. 2 vols. 8vo, about 7bO pages each. Price, $12.00 net. These works, treating of the three forms of security upon property, — Mortgages, Pledges, and Liens, — while sejjarately complete, have been prepared with a view to the relations of the subjects to each other; and each treatise contains references to the otliers ; so that all together constitute one work upon the subject of Property Securities. FORHS IN CONVEYANCING, AND GENERAL LEGAL FORMS, coni- ]iri,-infr Pivccdiuts for ordinary Use, and Clauses adapted to special and Unusual Cases. With Practical Notes. Fifth Kevised Editiou. 1 large vol. 8vo. Price, $6.00 net. A TREATISE ON THE LAW OF REAL PROPERTY. 900 pages each. Price, $12.00 net. 2 vols. Svo, about THE BOWEN=MERRILL COMPANY. Indianapolis and Kansas City A TREATISE ON THE LAW OF REAL PROPERTY AS APPLIED BETWEEN VENDOR AND PURCHASER m MODERN CONVEYANCING OB ESTATES IN FEE AND THEIR TRANSFER BY DEED BY LEONARD A. JONES, A.B.,LL.B. [Harv.] AUTHOR OF I^GAL TREATISES IN TWO VOLUMES VOL. I INDIANAPOLIS— KANSAS CITY THE BOWEN-MERRILL COMPANY 1896 ^> r Copyright, 1896, Bt LEONARD A. JONES. All rights reserved. THE HOIiLENBECK PEES3 INDIANAPOLIS Vis To THE HONORABLE WALBRIDGE A. FIELD, LL.Do CHIEF JUSTICE OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS AS A MARK OF RESPECT AND ESTEEM THIS WORK IS DEDICATED BY THE AUTHOR 734Co6 PREFACE. These volumes treat of the practical parts of the general subject of Real Property which arise in ordinary conveyancing between vendor and purchaser. They do not profess to cover the entire field of Real Property law. It is impossible in two or even three volumes to state the law and give the authorities relating to the entire subject. It is only possible in such compass to state general principles with a meagre citation of authorities. I write now, as I have written heretofore, with the purpose to state with considerable fulness the law of the topics of which I treat, — to state it with such completeness as to make the treatise valua- ble to the courts and to practising lawyers. Moreover, I have intended to state the law only as it now is, with as little reference as possible to the law that has become obsolete. I have referred to the old law only for the purpose of stating the principles upon which some pai'ts of the present law are founded. The subjects that present the most difficulties and give rise to the most litiga- tion I have discussed with the greatest care. I have cited a great number of cases, and have cited them after examination for their value. The mode of treatment is similar to that I have adopted in my other works. It will be observed that I take up the subject of Real Property with the consideration of that part of it which is usually made the closing part in other treatises. Instead of beginning with the least possible estates in realty, going up through the larger estates, and finally at the end coming to something about estates in fee and their transfer by deed, I begin with this part of the subject, V PREFACK. and in fact devote these volumes to it wholly. It is the part of the general subject which seems to me to afford the proper approach to all the learning upon it ; and, moreover, it is the part of the subject which more than any other is of practical impor- tance. I have not touched upon the subject of Mortgages of Real Property in these volumes except incidentally, for I have already written upon that subject. If I should hereafter write upon other parts of Real Property law, my writings will be published under separate and specific titles. These volumes are complete in themselves. L. A. J. Boston, April 19, 1896. TABLE OF CONTENTS. BOOK I. PART I. CAPACITY OF PERSONS TO HOLD AND CONVEY LAND. CHAPTER I. DISABILITY OF INFANTS. I. Deeds of infants voidable, not void . II. No estoppel by declaration of age . III. Disability of married women under age IV. Who may affirm or disaffirm minority . V. What amounts to an affirmance VI. What amounts to a disaffirmance . VII. Affirmance from lapse of time . VIII. Disaffirmance within a reasonable time . IX. Avoidance of mortgage for pm'chase-money X. Restoration of purchase-money 2 5 7 10 14 17 24 27 29 31 CHAPTER II. DISABILITY OF MARRIED WOMEN. I. Common-law disability and statutes removing ... 36 II. Disability of husband and wife to convey to each other at law 40 III. Conveyance between husband and wife good in equity . 45 CHAPTER III. DISABILITY OF INSANE PERSONS. I. Presumption and proof regarding insanity II. Deed of insane person under guardianship void III. Burden of proof where there is no guardianship 48 52 55 TABLE OF CONTENTS. SPCTION IV. Confirmation and disaffirmance of deed of insane grantor . 59 V. Restoring consideration on disaffirmance ... 67 VI. Title of purchaser in good faith ..... 70 CHAPTER IV. DISABILITY FROM DRUNKENNESS. 74 CHAPTER V. DISABILITY FROM DURESS. I. Duress by imprisonment ...... 79 II. Duress by threats ........ 81 III. Duress of property ....... 89 IV. Defence and proof of duress ...... 90 V. Duress renders deed voidable only .... 93 CHAPTER VI. DISABILITY FROM UNDUE INFLUENCE. I. What constitutes undue influence ..... 97 II. Confidential relation of the parties .... 103 III. Relation of parent and child ...... 108 IV. Relation of husband and wife ..... 112 V. Presumption and proof of undue influence . . . 114 VI. Deed procured by undue influence is voidable only . . 117 CHAPTER VII. DISABILITY FROM ADVERSE POSSESSION. I. At common law and by statute ...... 119 II. What constitutes adverse possession .... 122 III. Application of the rule ....... 131 CHAPTER VIII. CAPACITY OF CORPORATIONS AS VENDORS. I. Power to sell and convey . . . • • • 141 II. Power to mortgage ........ 144 viii TABLE OF CONTENTS. CHAPTER IX. SECTION CAPACITY OF TENANTS IN TAIL AS VENDOItS. 154 BOOK I. PART II. CAPACITY OF PERSONS AS PURCHASERS. CHAPTER X. CAPACITY OF PERSONS IN GENERAL. 156 CHAPTER XL CAPACITY OF ALIENS AS PURCHASERS. 163 CHAPTER XII. CAPACITY OF CORPORATIONS AS PURCHASERS. I. Restrictions upon domestic corporations .... 169 II. Restrictions upon foi-eign corporations .... 182 BOOK II. ESTATES IN FEE AND THEIR TRANSFER BY DEED. CHAPTER XIII. DEEDS OF CONVEYANCE AND THEIR FORMS. 193 CHAPTER XIV. PARTIES TO DEEDS AND THEIR DESCRIPTION. I. Names and descrijjtions of tlie tjjvantors .... 213 11. Names and descriptions of the grantees .... 222 III. Corporations and associations as grantees . . . 235 IV. Partnerships as gi'antees ....... 244 TABLE OF CONTENTS. CHAPTER XV. KECITALS IN DEEDS. SECTION I. Use and effect of recitals ...... 24(5 II. Recitals as evidence ....... 251 III. Estoppel by recitals ....... 256 CHAPTER XVI. CONSIDERATION. I. Consideration in deeds of bargain and sale . . . 263 II. Consideration for covenant to stand seised . . . 268 III. What is a valuable consideration ..... 270 IV. Marriage is a valuable consideration .... 280 V. Ajitecedent debt as a valuable consideration . . . 285 VI. Voluntary conveyances ...... 288 VII. Parol evidence of the true consideration .... 295 VIII. Recital of payment of consideration .... 303 CHAPTER XVII. OPERATIVE WORDS. 311 CHAPTER XVIII. DESCRIPTION AND BOUNDARIES. I. Certainty 320 II. Parol evidence ........ 335 III. Boundary lines by agreement ...... 354 IV. General rules of construction ..... 381 V. General and particular descriptions ..... 410 VI. References to maps and surveys ..... 424 VII. Boundary by highway ....... 448 VIII. Boundary by the sea, rivers, and lakes .... 470 CHAPTER XIX. EXCEPTIONS AND RESERVATIONS. I. How distinguished . ....... 503 II. General requisites and rules of construction . . . 516 X TABLE OF CONTKNTS. SBCTIOH III. Of particular exceptions and reservations .... 536 IV. Whether a reservation is personal or appurtenant to the land 548 CHAPTER XX. THE HABENDUM, OK THE ESTATES CREATED. I. The ofl&ce and effect of the habendum clause . . . 561 II. The naming of the grantee in the habendum clause . 571 III. The word " heirs " essential at common law to create an estate in fee . . . • • • • .5(0 rV. The rule in Shelley's Case 601 V. Estates taU 611 CHAPTER XXI. CONDITIONS PRECEDENT AND SUBSEQUENT. I. How defined and created ...... 619 II. Determinable or qualified fee 628 III. Conditions subsequent not favored in law . . . 632 IV. Not implied from the purpose of the grant . . • 649 V. Void conditions ......•• 6o8 VI. Performance and forfeiture ...... 678 VII. Waiver of conditions ....... 696 VIII. Reentry for forfeiture '^'08 CHAPTER XXII. RESTRICTIONS AS TO THE USE OF LAND. I. Restrictive conditions and covenants in general . . 733 II. Particular restrictions and their construction . . . 750 III. Who have the burden and benefit of restrictions . . 771 IV. When restrictive covenants run with the land . . . 784 ■ V. Waiver and release of restrictions ..... 802 VI. Enforcement of restrictions 814 CHAPTER XXIII. COVENANTS FOR TITLE. I. In general ......... 8.^0 II. Implied covenants ....... 833 xi TABLE OF CONTENTS. SECTION III. Covenants for seisin and viglit to convey . . . .842 IV. Covenant aj^ainst incmnbrances ..... 852 V. Covenant for warranty and quiet enjoyment . . . 892 VI. Covenants that run with the land ..... 928 VII. Measure of damages on covenant for seisin .... 943 VIII. Measure of damages on covenants against incumbrances . 957 IX. Measure of damages on covenants of warranty . . . 968 X. After-acquired title of grantor ..... 990 VOLUME II. CHAPTER XXIV. SIGNING. EXECUTION OF DEED. I. Signing in general ...... II. Signing by mark . . . . . III. Signing by the hand of another IV. Execution under a power of attorney V. Execution by married woman by power of attorney VI. Construction of power of attorney .... VII. Ratification and revocation of power of attorney VIII. Form of execution of deed by attorney . IX. Execution by private corporation X. Execution by municipal corporation XI. Execution by executor, administrator, or trustee Section . 1000 1010 . 1014 1021 . 1026 1029 . 1035 1040 . 1048 1056 . 1058 CHAPTER XXV. SEALING. I. Use and necessity of seals II. Seals at common law III. Scrolls and otlier devices used as seals IV. Presumptions as to sealing V. Record of seals .... VI. Seals of corporations xii 1059 1064 1068 1073 1075 1079 TABLE OF CONTENTS. CHAPTER XXVI. ATTESTATIOX. I. At common law and by statute II. Requisites of a good attestation III. Proof by attesting witnesses . SECTION 1085 1092 1101 I. II. III. VI. VII. CHAPTER XXVII. ACKNOWLEDGMENT. The pupose and effect of acknowledgment . Who may make an acknowledgment Who may take an acknowledgment . IV. Jm'isdiction of officer ...... V. Manjaer of taking and certifying Authentication of official character Errors and omissions in certificates . VIII. Identity of the grantor with the person acknowledging IX. By married women ...... X. Conclusiveness of certificates 1109 1114 1120 1129 1136 1153 1159 1176 1181 1196 CHAPTER XXVni. DELIVERY. I. A matter of intention ....... 1217 II. Gives immediate effect to deed ..... 1230 III. To whom it may be made ...... 1240 IV. Presumption of delivery from possession of the deed . 1248 V. Destruction, cancellation, or surrender of deed . . . 1258 VI. When delivery is complete ...... 1267 VII. Acceptance by the grantee essential . . . . .1276 VIII. Presum])tion of delivery from recitals or acknowledgment 1286 IX. Recording alone does not constitute a delivery . . . 1289 CHAPTER XXIX. DELIl^ERY IX ESCROW. I. What constitutes a delivery in escrow . II. When the title passes under a delivery in escrow xiii 1302 1314 TABLK OF CONTENTS. CHAPTER XXX. PILLING BLANKS AND MAKING ALTEKATIONS AFTER EXECUTION. I. Filling blanks II. Making alterations III. Burden of proof . SECTION 1328 1338 1359 CHAPTER XXXI. RECORDING. I. Nature and application of the recording acts II. Who are purchasers within the terms of the recording III. When a judgment creditor is a purchaser . IV. An assignee of a mortgage is a purchaser V. Priority as affected by mechanics' lien laws VI. Requisites as to execution and acknowledgment VII. Requisites as to the time and manner of recording VIII. Errors in the record ...... IX. Whether the index is a part of the record . X. The effect of a record duly made .... . 1368 acts 1385 . 1402 1420 . 1430 1435 . 1451 1468 . 1479 1482 CHAPTER XXXII. NOTICE AS AFFECTING PRIORITY. I. Notice as affecting priority under the registry acts II. Actual notice ...... III. Implied notice ....... IV. Constructive notice ..... V. Lis 2>&ndens ....... VI. How far possession is notice .... VII. Fraud as affecting priority .... VIII. Negligence as affecting priority 1499 1509 1532 1544 1559 1563 1580 1583 BOOK III. NATURE OF REAL ESTATE AND INCIDENTS OF OWNERSHIP. CHAPTER XXXIII. REAL ESTATE IX GENERAL. 1592 TABLE OF CONTENTS. CHAPTER XXXIV. TREES, FBUIT, AND GRASS, OR FRUCTUS NATURALES. SECTION I. Trees . . . ' 1^00 II. Fruit 1616 III. Grass 1(318 CHAPTER XXXV. GROWING CROPS, OR FRUCTUS INDUSTRIALES. 1619 CHAPTER XXXVI. INCIDENTS TO REALTY WHICH PASS AS APPURTENANCES. I. Appurtenances in general ...... 163o II. Land appurtenant to land ...... 1647 III. Appurtenances to mills ...... 1652 IV. Rights of way appurtenant . . . ' . • = 1657 V. Water rights appui'tenant ..„■'. 1660 VI. Drains and sewers appurtenant ..... 1663 CHAPTER XXXVII. FIXTURES TO THE REALTY. I. General principles determining what are fixtures' II. Buildings as fixtures ..... III. Domestic fixtures ...... IV. Agricultural fixtures ..... V. Machinery in mills ..... VI. Rolling-stock of railroads . . . . • VII. Rights of mortgagees as to fixtures VIII. Mortgagees' remedies for removal of fixtures IX. Tenant's fixtures ...... XV 1665 1691 1702 1708 1712 1729 1731 1759 1765 TABLE OF CONTENTS. BOOK IV. CONCURRENT OWNERSHIP. CHAPTER XXXV III. JOINT TENANCY. SECTION I. Creation and Incidents of . . . . . . . 1770 II. Statutes abolishing or restricting . . . . « 1781 CHAPTER XXXIX. TENANCY BY ENTIRETIES. 1790 CHAPTER XL. TENANCY IN COMMON. I. In general ......... 1818 II. Partnership realty 1826 CHAPTER XLI. RELATION OF COTENANTS TO EACH OTHER. I. As to incumbrances in general ...... 1835 II. As to tax sales 1846 III. Contribution and liens therefor ...... 1852 IV. Contracts and management ...... 1859 CHAPTER XLII. POSSESSION AND OUSTER OF COTENANT. I. Possession presumed not to be adverse .... 1862 II. Notice of adverse possession ..... 1806 III. What constitutes an ouster ...... 1870 IV. Entry and possession under deed of one cotenant . . 1878 CHAPTER XLIII. LIABILITIES OF COTENANTS TO EACH OTHER. I. For rents and profits received . . . . 1883 II. For use and occupation . . . • . • 1887 xvi TABLE OF CONTENTS. BKCTION III. For money expended in repairs and improvements . . 1898 IV. For services performed ...... 1908 V. For waste . . 1911 CHAPTER XLIV. REMEDIES BETWEEN COTENANTS. 1917 CHAPTER XLV. REMEDIES AGAINST STRANGER. I. In personal actions ....... 1925 II. In real actions ........ 1935 CHAPTER XL VI. PARTITION. I. Voluntary partition ....... 1939 II. Partition by suit 1954 III. Equities to be considered ...... 1974 IV. Partition by sale 1994 PAGE Index 745 xvii TABLE OF CASES. References are to Sections. A. Abadie v. Lobers Abbey v. Chase V. Wheeler Abbott V. Abbott V. Allen V. Alsdorf V. Creal V. Godfrey V. Gregory V. Hills V. Holway V. Marshall V. Rowan 1529 1049, 1080 1986, 1987 326, 341 928 1318, 1319 68 1478 1575 989 527 302 913, 987 Adams v. Brackett V. Conover V. Cuddy V. Daunis V. Edgerton V. Field V. Frye V. Halff V. Hay den Abercrombie v. Baldwin 1873 Abernathie v. Con. Virginia Min- ing Co. 1868 Abernathy v. Stone 1396 Abert V. Lape 1220, 1253 Abney v. De Loach llo9 Aborn v. Smith 483 Abraham v. Abbott 509 V. Mayer 14 GO Abrams v. Ervin 1123, 1124 Acer V. Westcott 782, 1368, 1517, 1523, 1547 Acheson v. Stevenson 818 Achorn v. Jackson 52o Acker v. Ledyard 1365, 1367 Ackroyd v. Smith 787 Acton V. Blundell l-'^^^ V. Dooley 354, 368 Adair y. Cook 66,111 V. Davis 1463, 1464 V.White 381,433 Adam v. Brissrs Iron Co. 532, 1595, 1866, 1867 r. Kerr 11^4 Adams's Appeal 11 ^'8 Adams v. Adams 1269, 144H V. Alkire- 381, 389, 414 r. Beadle 1613,1630 44 909, 910, 924, 937, 957 1401 1372 402, 1436 1002, 1018 1248, 1338, 1340, 1352 366 1458 V. Irvino- National Bank 86, 88 V. Lee 1683 V. Lindell 708 V. Loo-an 650, 658 V. Medsker 316, 1003, 1004, 1005,1114, 1132, 1133 V. Morse ^24 V. Neill 1412, 1414 V. Ore Knob Copper Co. 682, 705, 708, 715, 722 V. Pease 472, 480, 484 V. Pratt 1455 r. Robertson 1824 V. Rockwell 355, 364, 366, 367 V. Ross 575, 579, 582, 611, 614, 894 V. Ryan 1240, 1247 V. Sehiffer 89 V. Valentine 743 Adamston v. Hartman 1328 Addis t;. Graham 1073,1147,1196 1440, 1485 V. Power Addison v. Dawson V. Overend Addy V. Grix Adelman's Estate, In re Adkins v. Tomlinson V. Whalin Adsetts V. Hives xix 218 68 1928 1094 1965 850, 928 136 1S42 TABLE OF CASES. References are to Sections. iEtna Ins. Co. v. Resli 1803 .Etna Life Ins. Co. v. Bishop 1481, 15-17 V. Ford 1547 V. Franks 90 V. Ilesser 1403 Agan V. Shannon 1145, 1172 Agar V. Fairfax 19G7 Agawani Canal Co. v. Edwards 494 A^new V. Johnson 1928 Agricnltui-al Bank v. Rice 3 1 (i, 3 1 7, 318, 1003, 1004 Agricultural Cattle Ins. Co. v. Fitzgerald 1346 Ague V. Seitsinger 512 Aguirre v. Alexander 1862 Ahern i\ Freeman 1370 1-. White 1410 Aiken v. Bruen 285 V. Franklin 834 V. McDonald 944, 968 V. Suttle 1028 Aim an v. Stout 48, 49 Airhart v. Massieu 167 Ake V. Mason 912 Akerly v. Vilas 893 Akers v. Akers 602 V. Railroad Co. 409 Alabama v. Georgia 471 Alabama Life Ins. Co. v. Bodkin 1190 Alabama State Land Co. v. Thompson 1346, 1361 Alameda Macadamizing Co. v. Williams 452, 463 Albany F. Ins. Co. v. Bay 36, 1185 Albert v. Burbank 1251, 1258 V. Thomas 448, 449 Albin V. Riegel 1628 Albrecht, Matter of 1808 Albright v. Albright 40, 44, 45, 1234, 1258 Alden's Appeal 538 Alden v. Carleton 1898 Alderson v. Ames 1410 Aldine Manuf. Co. v. Barnard 1668, 1680 Aldis V. Burdick 138 Aldous V. Cornwell 1338, 1342 Aldrich v. Bailey 805 V. Billings 466 V. Funk 24 V. Griffith 380 V. Husband 1691, 1899 V. Reynolds 1630 Aldridge v. Aldridge 112 Alemany v. Daly 625 Alexander i;. Alexander 1220, 1224, 1243, 1292, 1294 V. Bridgford 870, 957 V. Caldwell 285, 1390 V. Crosbie 249 V. De Kermcl 1287, 1289, 1293 V. Ellison 1904 V. Haskins 68, 69 V. Ilickox 1346, 1349 V. Houghton 1148 V. Jones 10.'{5 V. Kennedy 1838, 1874, 1881 • V. Kimbro 1829 V. Merry 1159, 1162, 1180 V. Pierce 80, 85, 86 V. Polk 1060, 1066 V. Schreiber 840, 841 V. Shonyo 1764 V. Sully 1840 f. Tolleston Club 151,175, 190 V. Wheeler 354, 369 Alford V. Alford 646 V. Dewin 1935 Algonquin Coal Co. v. Northern Coal Co. 538 Allard v. Carleton 1955, 1994 Allday i-. Wliitaker 337, 1946 Allebach d. Ilunsicker 302 Allegheny National Bank's Ap- peal 1972 AUeman v. Hawley 1898, 199 7 Allen V. Allen 2, 222, 223, 256, 259, 398, 846, 928, 1803 V. Ashley School Fund 155, 613 V. Atkinson 828 V. Bates 424 V. Berryhill 68 V. Bolen 1484 V. Bowen 582 V. Cadwell 1501, 1517, 1563 V. Chambers 337, 353 V. Cowan 310 V. Craft 155, 583, 613 V. De Groodt 1217, 1230, 1231, 1234,1236, 1240, 1241, 1248, 1835 U.Drake 112 V. First Nat. Bank of Xenia 174 V. Gibson 1936 V. Hall 1862 V. Hawley 1415 u. Hazen 828 TABLE OF CASES. References are to Sections. Allen V. Holton 326, 857, 894, 896, 992 V. Hooper 40, 41 V. Howe 682, 687, 743 V. Hoyt . ■ 138 V. Kennedy 928, 929, 948 V. Kersey 399, 894 V. Lee 295, 862 W.Lenoir 1182, 1190, 1192, 1196, 1201, 1205, 1207, 1442 V. Little 928, 932 V. McCalla 1511, 1517, 1522 V. Mandaville 1560 V. Mitchell 1695 V. Montgomery R. Co. 150 V. Mooney 1668, 1673, 1702 V. Morris 1559 V. Peters 1919, 1937 V. Poole 2, 14, 17, 20, 22, 25, 1532, 1559, 1560, 1846 V. Reynolds 1185 V. Sallinger 338, 395, 193 7 V. Sayward 834 V. Scott 351, 422, 536, 1652 V. Smith 121 V. South Boston R. Co. 1539 V. Sullivan R. Co. 1064 V. Weber 488, 498 V. Welch 125 V. Withrow 1329, 1331 V. Woodard 1690, 1746 I'. Yeater 828 Alliance Milling Co. v. Eaton 366 Allin V. B II nee 613 Allis r. Billings 54, 60, 61 I'. Jones 1052, 1054 V. 2s''ininger 903, 918 Allison V. Hagan 1529, 1530 I'. Montgomery 968 V. Thomas 1394, 1400 Allore V. Jewell 99 AUred v. Elliott 1104 Almeric v. Alvarado 1981 Almond i: Bonnell 1802 Almy V. Daniels 1874, 1890, 1892 Alseire v. Hulse 381 Alsop V. Swafhel 126 7 Alstin V. Cuiidiff 286 Alston V. Als^ton 1485 V. Boyd nO Altham's Case 487, 566 Althen v. Tarbox 37 Alton V. Illinois Transp. Co. 324, 5;U Altringer v. Capeheart 295 Alvarado v. Nordholt 1S66 Alvis V. Morrison 1442, 1485 Alvord Carriage Manuf. Co. v. Gleason 1668, 1671, 1718 Alvord V. Waggoner 32, 939, r87 Alward v. Holmes 181, 182 Ambler v. Cox 355 Ambrose v. Raley 424 Ambs V. Chicago, St. P., Minn. & Omaha Ry. Co. 220, 333, 423 American, &c. Co. v. Frank 1284 American Asso. r. Short 996 American Bible Soc. v. Marshall 189 American Dock Co. v. Trustees 4 71 American Emigrant Co. v. Call 1481 V. Clark 224 American Freehold Land Mort- gage Co. V. James 1196 American Mortgage Co. v. Hutch- inson 1396 American Mortgage Co. v. Ten- nille 167,190 American Mortgage Co. r. Wright ° 14, 16 American Mut. Life Ins. Co. v. Owen 186 Amerman r. Deane 773, 779, 824 Ames, Ex parte 1 758 Ames V. Ames 1966 V. Hilton 334, 335, 453 V. Norman 1791, 1792, 1801, 1811, 1812, 1814 V. Phelps 1455, 1472 Amey v. Cockey 2, 27 Amick V. Brubaker 1871 Ammidoun v. Ball 1651 V. Granite Bank 4 76, 1647 Amnions v. Dwyer 1364 Amos r. Amos 1231 V. Cosby 962, 974 Amphlett v. Hibbard 1415 Anders v. Anders 1940 Anderson v. Anderson 1236, 1269 V. Bailey 1188 V. Baughman 1436, 1437 V. Bellenger 1338, 1350 r. Buchanan 903 V. Carey 660 V. DUgas 1463, 1464 V. Hubble 1527 V. Jackson 361, 363 V. Knox 918, 928, 962, 974 V, Lay ton 1547 V. Logan 581, 582, 599, ■ 1109 V. McCorniick 381 V. Nagle 1-106 V. Richardson 340, 381 V. Soward 16 TABLE OF CASKS, References are to Sections. Anderson v. Stamps 33.") r. Stnuiss 1H2S V. Wilbiirn 1070 Anderson School c. Milrov Lodge 1957 Andress r. WelUr 75 Andreu v. Watkiiis Andrew c. Andrews r Aitken Appel Burns Chandler Davison Dyer V. Farnham V. Jones V. Mathews V. Murphy V. Pearson V. Rue V. Senter V. Spurlin V. Wolcott V. Word V. Youinans 335, 339, 341, 381, 398, 424, 466 780 930, 938, 974 1380 1686, 1737 930, 96 7 218,226, 227, 1248, 1250 1307, 1308 281 1406 400 326, 346, 351, 399, 420 381 699, 704, 722 579, 601, 602, 608, 609, 613 801, 935 828 448 Andrus v. St. Louis Smelting Co. 893 Angell V. Rosenbui'y Angelo v. Angelo Angier v. Schieffelin Angle V. Young Ankeny v. M'Mahon Anketel v. Converse Annable v. Patch Annandale v. Harris Annely v. De Saussure 593 1918, 1987 1133 377 1066, 1070 1536 1784 277 1891, 1892, 1898, 1902, 1906 Annis v. Wilson 156, 570, 1297 Anthony v. Chapman 303 V. Hutchins 49, 99 V. Providence 448, 449, 461, 463, 10;j2 V. Wheeler 1386, 1517, 1524 Apel v. Kelsey 1112, 1125 Apperson v. Burgett 1408 Appleton V. Boyd 1824 V. Edson 138 Aqueduct Co. v. Chandler 630 Arambula v. Sullivan 326, 414, 423, 427 Archer v. Ellison 613 V. Helm 354 V. Hudson 108 V. Salinas City 449 Archibald v. Davis 323 xxii Aransas Pass Co. v. Flippen 440 Arden v. Thompson 381, 399 Argo V. Coilin 48, 111 Arguello w. Bours 1328, 1329 Ariedgc V. Hail 1406 Armentrout v. Gibbons 1485 Armitagc. v. Widoc 4, 10 Arms V. Ashley 594 V. Burt 575, lOGO Armstrongs. Armstrong 1255, 1281, 1289 V. Brownfield 398, 407 V. Bryant 1981 V. Caldwell 1596 V. Colby 321 V. Du Bois 335, 1637 V. Lawson 1600, 1609, 1611, 1624 V. Logan 103 V. McCoy 254 V. Pearce 1066,1068, 1071 V. Ross 1185, 1442 V. Stovall 38, 316, 1001, 1003, 1018, 1217 Arneson v. Spawn 341, 437 Arnold v. Arnold 1792, 1794, 1801, 1803 V. Cauble 1968, 1979 V. Crowder 1668, 1718 V. Elmore 484 V. Hickman 74, 78 V. Jack 1 785 V. Patrick 1303 V. Richmond Iron Works 54, 59, 60, 67 V. Smith 1529 V. Stephens 138 V. Stevens 1596 V. Townsend 53, 99 V. Whitcomb 98, 101 Arnot V. Erie Ry. Co. 295 Arrigoni v. Johnson 974 Arrington i'. Arrington 1259, 1388, 1527, 1528, 1529, 1."j34, 1535, 1559, 1560, l.")62 Arrison v. Harmstead 1240, 1349 Artcher y. Whalen 1319 Arterburn v. Gwathmey 1997 Arthur I'. Anderson 1008, 1222 V. Commercial & R. Bank 142, 145 y. Lamb 1912 V. Screven 1439 V. Weston 233, 244 Arundell v. Phipps 45 Ash V. Ash 1463 Ashby V. Eastern R. Co. 476 TABLE OF CASES. References are to Sections. Ashchaft v. De Armond 55, 56, 69, 72 Ashcroft V. Eastern R. Co. 503, 508, 548, 575 Ashe V. Livingston 1463 Aslier V. Mitcliell ' 1578 Aslier LuuibLT Co. r. Lunsford 490 Aslieville Division v. Aston 235, 239 598 Ashfield V. Ashfield ' 14 Asliford V. Prewitt 1304 Ashley v. Cunningham 1559 V. Warner" 628, 713 Ashmead v. Reynolds 99 Ashton's Appeal 285, 1390, 1529 Ashton V. Thompson 108 Ashurst c. Peck 131 Askew V. Daniel 1185 Askey v. Williams 2, 4, 27 Aspden v. Seddon 533, 538, 1595 Association of Colored Orphans V. Mayor 871 Astbnry, Ex parte 1720, 1728, 1749 Astley V. Reynolds 89 Astor V. Wells 1457, 1458, 1501, 1537 Atchison V. Pease 354, 359, 368 Atchison, T. & Santa Fe R. Co. v. Jaques 870 Atchison, T. & S. F. R. Co. v. Morgan 1668, 16 70, 1709 Atchison, T. & S. F. R. Co. v. Patch 468 Atkins V. Bordman 546, 762, 1594 V. Paul 1578 Atkinson v. Bell 990 V. Marietta, &c. R. Co. 145 r. Tabor 1314 Atlantic & P. R. Co. v. St. Louis 175 Atlantic & Pac. Tel. Co. v. Union Pac. R. Co. 142, 151 Atlantic Dock Co. v. Leavitt 647, 671, 780, 798 Atlantic Nat. Bank v. Harris 1539 V. Tavener 43 Atterbury v. Wallis 1539 Attorney-General v. Algonquin Club 757, 759, 814 V. Ayer 75 7, 758 V. Boston Wharf Co. 483 V. Chambers 4 70 V. Del. & B. Brook R. Co. 480 V. Emer.'ion 4 70 V. Gardiner 756 V. Hall 664 V. Johnson 470 Attorney- General v. Merrimack Manuf. Co. 713, 715, 628, 631 Attorney-General v. Parmeter 470, 473 Attorney-General v. Proprietors of Federal St. Meeting-House 593 Attorney-(ieneral v. Richards 473 V. Southmolton 640 r. Stewart 170 V. Tancred 276 V. Terry 473 V. Wax Chand- lers' Co. 640,641 V. Wilkins 1531 V. Williams 770, 808, 819 V. Woods 476 Attwater v. Att water 662 At wood V. Canrike 466 Aubuchon v. Bender 1392, 1527 Auburn Cong. Church v. Walker 326, 413, 420 Auerbach v. Le Sueur IMill Co. 169 f. Wylie 216 Au Gres Boom Co. v. Whitney 405 Augusta, &c. R. Co. v. Kittel 1082 Augustine v. Britt 454, 462, 464 AuU V. Lee 1555 Aultman-Taylor Co. v. McGeorge 1585 Aultman & T. Manuf. Co. v. Rich- ardson 239 Aurora Ag. Soc. v. Paddock 144 Ausable Co. v. Hargraves 364 Austerberry v. Oldham 780 Austin V. Barrett 1846, 1884, 1892 V. Cambridgeport Parish 688, 715, 718, 728 V. Charlestown Female Seminary 13 V. Dolbee 323, 331 V. Hall 1925, 1926 V. King 13.S2 I'. Register of Deeds 1327 V. Rutland R. Co. 501 V. Sawyer 1620, 1623, 1624, 1627 V. Shaw 223, 237, 241 V. Underwood 1412, 1415 V. Whitlock 1071 V. Willis 522 Austrian r. Davidson 324, 395 Averill v. Guthrie 1498 Avery v. Akins 992 V. Bauni 359 V. Dougherty 893 V. Empire Woolen Co. 364 TABLE OF CASES. References are to Sections. Avery v. Hall ISC.S V. New York Cent. & II. R. Co. 641, G4'2, 681 Axtol r. CTiase 899, 914, 919, 953 Ayoofk r. Kiinbrouiili 194 7 c. U:lloi^h, &c. R. Co. 1073, 1075, 1440 Ayer v. Emory 632, 643, 646, 6.50, 741 V. Philadelphia, &c. Face Brick Co. 860 Ayers v. Beaty 43 7 V. Harris 399, 433, 442 V. Jack 1563 V. Lancaster 442 V. McConnel 303 V. Watson 340, 378, 381, 386, 398, 433, 442 Ayling v. Kramer 635, 742, 771 Ayranlt v. Murphy 1559 Ayray's Dr. Case 225, 235 Ayres v. Duprey 1390, 1406, 1408 i\ Harness 1328 V. Penn. Ry. Co. 448, 458 V. Probasco 1328, 1333, 1334 Ayrey r. Hill 74 Babb V. Clem son 1349 V. Harrison 527, 1233 Babbitt v. Day 1773, 1782 V. Johnson 1123 Babcock v. Eckler 284, 289 V. Jordan 285, 1392 V. Latterner 518 V. Lisk 1555 V. Utter 488, 490 Babson v. Tainter 476 Bacharach i'. Von Ei£f 885 Backenstoss v. Stahler 1619, 1624 Backus ;;. Detroit 480 V. McCoy 843, 929, 931, 943 Bacon v. Bacon 1547 V. Bowdoin 1652 V. Huntington 624, 641 V. Lincoln 847 V. O'Connor 1522 V. Shultz 1951 V. Van Schnonhoven 1420 Badger v. Batavia Paper M. Co. 1 742 V. Boardman 774, 780, 796 V. Holmes 1884, 1887, 1917, 1922 I'. Phinney 29 Bagby v. Emberson 1185, 1188, 1190 Bagley i;. Fletcher 8,17,21,22, 1394, 1395 V. Morrill 340, 381 xxiv Bagnall v. Davies 756, 760 V. Villar 1633 Bagster v. Earl of Portsmouth 68 Bailey v. IJailey 1234, 1271 V. Baker 366 V. Bamberger ."I V. Briant 1624 17. Campbell 1259, 1846, 19«1 V. Crim 1316 V. Galpin 1436 V. Gould 1581 V. Hobson 1912 V. Kilburn 234 V. Landingham 1196, 1197, 1205 V. Laws 1853, 1988 V. Lloyd 249, 250 V. McConnell 381 V. Miltenberger 912 V. Myrick 1467 V. Railroad Co. 4 71 V. Richardson 1563 V. Scott 974 V. Taylor 1365, 136 7 V. 'Jimberlake 1416 V. AVells 688 V. White 388 V. Williams 88 Baily v. De Crespigny 810 V. Trammell 1867, 1870 Bains v. Bullock 1792, 1816, 1817 Baird v. Bank 1 75 v. Brookin 155, 233 V. Jackson 1745, 1901 Baker v. Atherton 1720 V. Bessey 1640, 1649, 1652, 1653 V. Bliss 1514, 1517 V. Clay 350, 398, 404 r. Clepper 1410 V. Corbett 962 V. Dening 1014 V. Griffin 14.S2 V. Haskell 1267, 1268, 1271 V. Hunt 842 V. Jordan 1624 V. Kennett 2, 16, 18, 24, 31, 158 V. Lewis 1601 V. U V. Sturgis 861, 868, 958, 962, 967, 974 V. White 1349 Batchelor v. Brereton 316 V. Whitaker 582 Batdorf v. Albert 303 Bateman, Petitioner 1189, 1195 Bates V. Bank 353 V. Boston & N. Y. Cent. R. Co. 1066 V. Delavan 833 V. District of Columbia 1934 V. Foster 412, 414, 834, 896 V. Grabham 1352 V. 111. Cent. R. Co. 437 V. Norcross 1371, 1482, 1506 V. Seely 1802 V. Swiger 524 Batey v. Woolfolk 1372 Bath V. Yaldez 1864, 1866, 1868 Batte V. Stone 1441 Batterman v. Albright 1628, 1629, 1630 Battersbee v. Farrington 256 Batterton v. Chiles 138, 1968 Battin v. Bigelow 1190 *;. Woods 1846 Battle ?;. John 1968 Battner v. Baker 364 Baudendistel v. Zabriskie 903 Bauer v. Gottmanhausen 358, 359, 366 V. Schmelcher 1166 Bauskett v. Jones 898 Bavington r. Clarke 1949 Baxter v. Baxter 52 V. Bradbury 843, 943, 946, 953, 954, 956 V. Busli 158 V. Evett 381 i;. Ryerss 973, 990 V. Smith 160 V. Wilson 381, 389, 400 Bay V. Posner 224, 256, 326 Bay City Gaslight Co. v. Indus- trial Works 483 Bayley v. Bailey 1466 V. McCoy 991 V. Onondaga Ins. Co. 23 7 Bayliss i'. Williams 107, 297, 303 Baylor v. Hopf. 1887 V. Scottish-American Mortg. Co. 13 71, 1396 Baynard r. Eddings 398 Baze V. Arpcr 1109, 1151, 1442 Biizcmore v. Davis 1898, 1903 Beach v. Hollister 1792 V. Miller 503, 880, 881, 882 V. Packard 303, 307, 309, 861 Bcacroft v. Strawn 579 Beal V. Blair 321 V. Gordon 1563 xxvii TABLE OF CASES. Refereuoes are to Sections. Boal V. WariTii 26t;, '209, 293 Ikall V. Evans 1807, 1874 Beals V. Case 767, 771, 773, 774, 779 Beaman v. Russell 1359, 136 7 V. Whitney 244, 1125 Bean u. Bachelder 431,432 V. French 548 I'. Kenmuu- 563 V. Smith 1529, 1531 Bear f. Bitzer 1619 V. Whisler 626, 718 Beard v. Dedolph 41 Beardsley v. Crane 335, 355, 364, 437 V. Day 1073, 1075, 1334, 1440 V. Hilson 1276 V. Hotchkiss 11 V. Knight 1821, 1953 V. Ontario Bank 1729 Beasley v. Bray 1388 V. Henry 1588 Beatie v. Butler 1566 Beaty v. Bordwell 1904 V. Robertson 431 Beaubien v. Hindman 1568 V. Kellogg 364 Beaudry v. Doyle 381 Beaufort o. Duncan 1056 Beaumont v. Field 340 y. Yeatman 1123,1124 Beaumont Car Works v. Beau- mont Imp. Co. 271, 1314 Beaumont Pasture Co. v. Preston 1364 Beaupland v. McKeen 944, 945 Beaupre v. Dwyer 1673, 1715, 1721 Beavan v. M'Donnell 72 Beaver v. Frick Co. 1458 V. Slanker 1438, 1448 Beck V. Kallmeyer 1975, 1986 Beckel v. Petticrew 1443 Becker V. Anderson 1159, 1173 V. Church 121 V. Knudson 980 V. Quiirir 1177, 1178, 1194 Beckett v. Cordl.-v 1527 V. Ilc-u.n' 1289 Beckham v. Dmiciin 1994 Beckman v. Davidson 371 V. Kreamer 480 V. Sikes 1619, 1628, 1634, 1732, 1736 Beckwith v. Windsor Manuf. Co. 1051 Becnel v. Becnel 1887 Beddoe v. Wadsworth 933, !)40 xxviii Bedel r. Loomis 968 Bedell's Case 264 Bedford v. British Museum 773, 780, 804, 805, 813 I'. Tupper 1451, 1468, 1472, 1479 Bedgood v. McLain 1364 Bedinger i'. Wharton 18, 31, 35 Beebe v. Griffing 1862 V. Louisville, N. O. &c. R. Co. 1963 V. McKenzie 568 V. Swartwout 897 Beecher v. Baldwin 962, 967, 969 V. Clark 284, 289, 290 V. Galvin 365, 379 V. Hicks 568, 573, 576, 614 V. Rolling Mill Co. 153 Beekman v. Hudson River, &c. Ry. Co. 151 Beem v. McKusick 1319 Beers v. Beers 1303 V. Broome 1589 V. Estill 155 V. Hawley 1589 Begbie r. Fenwick 1718 Behm v. Molly 24 Behrens v. McKenzie 68 Beiser V. Beiser 1275 Beith V. Beith 109, 279 Belbaze v. Ratto 1159, 1174, 1403, 1451 Belcher, Ex parte 1 748 Belcher v. Weaver 1159, 1173, 1190, 1192, 1195 Belden v. Carter 1234, 1246, 1307 V. Meeker 1420, 1422 V. Seymour 295, 297, 301, 302, 303, 309, 312, 381, 398, 831, 948, 1344 Belknap v. Belknap 1887 V. Louisville 364 V. Sealey 407 V. Wendell 310 Bell V. Andrews 901 V. Davis 1523 ?'. Dunsterville 1025 ?;. Evans 1159,1178,1180,1404 V. Gough 4 72 V. Kcefe 1071 V. McDuffie 314 V. Quick 1328 V. Sawyer 401, 410 V. Scammon 268 V. Thomas 1499 V. Twilight 1529, 1531, 1547, 1568, 1572, 1575, 1576 TABLE OF CASES. References are to Sections. Bell V. Tyson 1515 Bell County r. Alexander (319 Bellamy v. Sabine 108, 1559 Bellas V. Cleaver . 378 V. Lloyd 1483, 1547 V. M'Oarty 1374, 1528 Bellis V. Bellis 1862 Bellows V. Jewell 386 V. Litchfield 924, 934, 968 V. Wells 1620, 1626 Belo V. Mayes 1181, 1186, 1188, 1207 Belote V. Henderson 91 Beman v. Rufford 142 Bement v. Plattsburgli & Mon- treal R. Co. 1729 Bender v. Pitzer 375, 376, 378 V. Stewart 1846 Benedict v. Gaylord 326, 335, 336, 338, 388, 410 V. Marsh 1668, 1669, 1741 V. Torrent 1820, 1913, 1979 Benefiel V. Aughe 1149 Benham v. Keane 1501 Benjamin's Succession 1435 Benjamin v. Hobbs 955 Benn v. Hatcher 523 Benner v. Platter 480, 486 V. Street 1971 Benneson v. Aiken 992, 1218, 1220, 1234, 1286 Bennet v. Jenkins 968, 970, 981 V. Paine 1143 V. Williams 1560 Bennett v. Caddell 520 V. Child 1792, 1802, 1811, 1814 V. Clemence 1875, 1922 V. Culver 621 V. Green 217 D. Hethington 1936 V. Keehn 858, 859, 860, 882, 1846 V. Mattingly 261 V. Robinson 1575 I'. Shipley 1109, 1125 V. Virtjinia Ranch & Cat- tle Co. 1887,1937 V. Waller 1266 Benoit r. Sclineider 1303 Bensell v. Chancellor 65 Bensieck v. Cook 56, 305 Bensimer v. Fell 1130, 1133, 1159, 1190, 1191 Bensley v. Atwill 1292 V. Burdon 25 7 Benson v. Callaway 1451 V. Daly 364 V. Green 1463 V. Hall 1220, 1273 V. Markoe 600 V. Monroe 89 V. Morrow 481 I'. AA'oolverton 1248 Benson Bent V. Coleman 1436, 1437, 1522, 1554 V. Rogers 412, 414 Bentley, Ex parte 1768 Bentley v. Deforest 314 V. Harris 283 Benton v. Horsley 340, 381, 386, 398 V. McLitire 326, 384 V. NicoU 1466 Benton County v. Ruth 928 Bercaw v. Cockerill 1451, 1501, 1551 Beresford v. Browning 989 Berg V. McLafferty 1866 Bergen t'. Bennett 1036 V. Udall 108 Bergeron v. Richardott 1541 Berghoefer v. I'razier 354, 358 Berkley v. Union Pac. Ry. Co. 643, 687 Berkowitz v. Brown 40, 45 Berks & Dauphin Turnpike Road I'. Myers 239, 1082 Bernal r. Lynch 1846 Bernard t>. 'Elder 1182, 1190, 1192 Bernard's Township v. Stebbins 1062 Bernecker v. Miller 1862, 1863 Berneson v. Aiken 127 7 Bernheim v. Horton 1217 Bernstein v. Humes 119, 121, 124, 129, 353, 1563, 1568 V. Nealis 332 Berridge v. Ward 448, 456 Berrigan i;. Fleming 1792 Berrisford v. Mihvard 1580 Berry v. Anderson 1220, 1248, 1269, 1303, 1314, 1315 V. Billings 563, 571 V. Kinnaird 1259 V. Jourdan 1108 V. Mutual Ins. Co. 1369, 1419, 1586 V. Seawall 1940, 1941, 1944, 1948, 1949 V. Snyder 484 V. Wliidden 1887 V. Whitney 1524 r. Whittaker 1559 Berrj'hill v. Kirchner 1578 xxix TABLE OF CASES. References sire to Sections. Berryhill v. Smith 1406 Berryman c. Schumacher 624, 646, 694, 704, 708 Berthold v. Fox 1873 Bertles v. Nunan 1791, 1792, 1800, 1802, 1805, 1811 Bertram v. Curtis 877 Bertrand r. Bvrd 1069 Besore v. Dosh 139G Best 1-. Brown 1276, 1283, 1291 Bethea t;. Byrd 376 Bethell v. Betliell 828 V. IMcCool 1919 Bethlehem v. Annis 732 Betsey v. Torrance 127, 140 Bettinck v. Franklin 120 Bettison v. Budd 254 Bettiswonh's Case 1651 Betts r. Carroll 29 V. Lee 1692 V. Letcher 1380, 1522, 1564, 1565, 1568 V. Menzies 487 V. Union Bank 280, 298 V. Wurth 1767 Betz V. Mullin 1463 V. Snyder 1381 Beuley v. Curtis 1124 Bever v. North 302, 861, 862, 924 Beverley's Case 64, 65, 159 Beverley v. Brooke 1529 V. Ellis 1472 V. Walden 49 Beville v. Jones 49, 99, 108, 1138 Bevin v. Powell 56 Bevins v. Cline 1775 Beyer v. Schultze 921 Beyersdorfer v. Schultz 366 Bibb V. Baker 14 78 V. Freeman 943 Bice V. Nixon 1970 Bickett V. Harris 480 Bickford v. Page 867, 928, 939, 943 Biemann v. White 1563, 1564 Bierce v. James 1970 Bigelow I'. Barr 649 V. Booth 1145 V. Hubbard 867 V. Jones 969, 1878 V. Kinney 2, 27, 29 V. Littlefield 1965 V. Livingston 1041, 1115, 1159 V. Stilphen 1338, 1340 V. Topliff 1451, 1469, 1778 Bigg V. Strong 1860 XXX Big<;;crs v. St. Louis Mut. House- Building Co. 1197 Bigiicrstaif v. Murphy 1526 Bigiiins V. Champlin 366 Bigham v. Bii^ham 861 V. McDowell 383 Bigler v. Nat. Bank 1712 Bii^lcy V. Jones 1532 Biles V. Tacoma, &c. R. Co. 503, 508, 509, 556 Billinghani v. Bryan 883 Billings, Estate of 164 Billings V. Kankakee Coal Co. 338 V. Morrow 1029 V. Stark 1238 Billingsley v. Bates 437 V. Niblett 1409 Billington v. Welsh 1576 Bingham v. Bai-ley 27, 31 V. Bingham 356 V. Kirkland 1506 V. Sessions 89 V. Weiderwax 295, 948, 997 Binkley v. Forkner 1G68 Binney's Case 141 Bioux V. Cormier ;?98 Birch V. Linton 2, 18, 24, 25 Bircher v. Watkins 948 Bird V. Bird 1883, 1887, 1889 V. Cruse 522 V. Decker 1014, 1018 V. Stark 366 Birdseye v. Rogers 326 Bird song v. Birdsong 74, 78 Birmingham v. Anderson 424, 450 Birmingham, &c. Land Co., In re 774, 778 Birmingham Canal Co. v. Bold 1018 Birnie v. Main 1409, 1489, 1490 Bischoff V. ^Vethered 487 Bisco V. Banbury 1544, 1554 Biscoe u. Byrd 1127,1129 Bishop V. Bishop 1668, 1709 V. Cook 1452 V. Little 901 V. Newton 13 74 V. Schneider 1392, 1435, 1442, 1451, 1469, 1479, 1480, 1527 V. Seeley 494 Bishop of St. Albans v. Battersby 768 Bissell i;. Fletcher 492 V. New York Cent. R. Co. 448, 449, 454 Bissett t;. Bissett 1196,1447 Bitner v. New York & Tex. Land Co. 331,339 TABLE OF CASES. References are to Sections. Bittinger v. Baker 1619, 1626 Bivins v. Jarnigan 116 Black V. Coan 958, 967 V. Del. & R. Canal Co. . 142 V. Duncan 931 I'. Ellis 77 V. Gregg 1125 V. Hills 21, 23, 27 V. Hoyt 1240, 1241, 1280 V. Justice 1101 V. Long 1404, 1408 V. Pratt Coal & Coke Co. 321, 339 V. Sharkey 1218, 1223 V. Shreve 1248, 1254, 1303, 1314 V. Sprague 424 V. Thornton 1217, 1248 Blackborn v. Edgley 1647, 1651 Blackburn v. Nelson 383, 442 V. Norman 1034 V. Pennington 1190 V. Smith 157 Blacker v. Dunlop 1942, 1947 Blackie v. Hudson 872 Blackington r. Sumner 386 Blackman v. Hawks 1196, 1197, 1205, 1447 V. Preston 1230,1233, 1269 V. Riley 462, 466 V. Striker 503, 528, 531, 535 Blackmore v. Gregg 1877 Blackshire v. Iowa Homestead Co. 849, 1049, 1082 Blacksmith v. Fellows 619 Blackstone Bank v. Davis 660, 663 Blackwell v. Hamilton 1068 V. McLean 1981 Blackwood i;. Jones 1517 r. Van Vleit 1882 Blade v. Noland 1108 Blades v. Blades 1499 Blain v. Stewart 1109 V. Taylor 785 Blaine v. Chambers 1652 Blair v. Bruns 338, 346 V. Carpenter 295 V. Coffman 82 V. Howell 1248 V. Osborne 572, 573 V. St. Louis, &c. R. Co. 1325 V. Sayre 1187, 1188 V. Smith 354 r. Vanblarcum 155 V. Ward 1482, 1489 Blaisdell v. Bissell 389 Blaisdell v. Stevens 1517, 1522 Blake v. Blake 41, 640 V. Burnham 943 V. Clark 1652 V. Everett 879 V. Fash 1218, 1238 V. Graham 1482 V. Sanborn 1824 V. Stone 610 Blakeley v. Blakeley 48, 49, 50, 54, 61 Blakemore v. Byrnside 1248 V. Stanley 750 Blakeney v. Ferguson 1873 Blakeslee v. Mobile Life Insurance Co. 990 Blalock V. Miland 1091, 1261 Blanchard v. Baker 1923 V. Blanchard 867, 915, 944 V. Brooks 857, 894, 896, 992 V. Detroit, &c. R. Co. 632, 638, 639 V. Ellis 957, 976,997, 998 V. Floyd 244 V. Hoxie 944 u. Morey 632,674 V. Porter 480 V. Tyler 1239, 1386, 1527, 1528 V. Ware 1559 Blanchard's, &e. Factory v. War- ner 169 Blancke v. Rogers 1672, 1713, 1721 Bland v. Smith 381, 431, 432 Blaney v. Rice 364, 386, 407 Blankenship v. Douglas 1568 V. Stout 27 Blanton v. Vanzant 1891 Blasey v. Delius 1362 Blassingame v. Davis 366 Blatchford v. Boyden 1411 Blatchley v. Osborn 1521, 1529, 1556 Blean v. Messenger 6 76 Bledsoe v. Bledsoe 102 V. Doe 120 V. Rogers 128 Bleidorn v. Pilot Mt. M. Co. 381 , 435 Blevins v. Baker 1778 V. Barker 1501 V. Smith 959 Blewitt V. Front Street Cable Ry. Co. 1258, 1303 Blight r. Banks 1527 V. Schenck 1241, 1288, 1290, 1313, 1316 xxxi TAI'.LK OF CASKS. References are to Sections. Blinn v. Chesseman 229 Bliss V. Kaweah Ciinal Co. 1082 c. Kounodv 1652, 1661 V. Mclntyre 1346, 1348, 1349 r. West 1243, 1290 r. Whitney in.s Blotlgett V. Hitt 6S Bloili^ftt, &c. Co. V. Peters 483 Blondeau w. Sheridan 844, 915, 931, 974, 987, 1934 Blood V. Blood 1109, 1435, 1442, 1884, 1887 V. Goodrich 1021 V. Wilkins 948, 980 Bloom V. Noggle 1451, 1478, 1501 V. Simms 1464 V. Welsh 1619, 1620, 1627 V. Wolfe 831, 948, 950 Bloomer o. Henderson 1575 V. Nolan 31 Blooming-dale (;. Chittenden 2 Blooniington v. Cemetery 358, 366 Blossom c. Brightnian 1965 Blow V. Vaughan 33 7, 339, 342, 344, 349,353, 402, 409 Blnm V. Robertson 1029 Blumenthal v. Brainerd 1534 Blumenthal Real Estate Co. v. Broch 381 Blundell v. Catterall 473 Blunt V. Norris 1424 Blythe v. Dargin 36, 38, 1004 V. Houston 1KJ5 V. Sutherland 378 Board of Commissioners v. Bab- cock 14 72, 14 79, 1480 Board of Commissioners v. Young (523, 633, 649, 6 75 Board of Education v. Trustees 635, 649, 715, 723 Board of Street Opening, In re 542 Boardman v. Dean 265, 1290, 1292 V. Reed 327, 337, 376, 378 Bobb V. Barnum 253 V. Bobb 295, 302, 309, 948 Bobinson v. Neil 929 Bobo V. Richmond 355, 359, 368 Bocock V. Pavey 1028, 1047 Bodine v. Arthur 155, 562, 563, 564, 56.5, 568, 569, 580, 583, 614 V. Morgan 86, 94 Bodwelly. Webster 1307 BodwcU Granite Co. v. Lane 570 Bogan V. Hamilton 331 Bogardus v. Trinity Church 175, 1880 xxxii Boggess (;. Meredith 1979 Boggs V. Anderson 1563, 1570, 1572, 1575 V. Varner 154 7 Bogie V. Bogie (i46 Bosjle V. Hammons 81 Bogue V. Williams 1568, 1570 Bohan v. Casey 1447 Bohannon v. Travis 42, 44 V. Lewis 1067 Bohlnian v. Coffin 1511, 1514 Bohn V. Davis 1102 Bohny v. Petty 367 Bohon V. Bohon 992 Boisaubin v. Reed 559 Boland v. St. John's Schools 449, 450, 453 Bole V. Newton 1278 Boley V. Barutis 1893, 198 7 BoUes V. Beach 305 V. Carli 1409, 1411, 1415 V. Chauncey 1482 V. State Trust Co. 1811 Boiling V. Munchus 307 V. Teal 1188, 1190, 1195, 1942, 1949 Bolton V. Bishop of Carlisle 1346 V. Eggleston 381 V. Hamilton 1862 V. Johns 307 Bomar v. Mullins 1 792 Bompart v. Roderman 1942, 1947 Bonaparte v. Carter 341, 381, 385 Bond V. Bond 50. 60 V. Coke 1627, 1718, 1748 V. Fav 326, 335, 336 V. Hiil 1853 V. Quattlebaum 968 V. Wool 471, 480 Bondurant v. Watson 1372 Bene v. Delaware & H. Canal Co. 175 V. Greenlee 1446 V. Lansden 990 V. Tyrrell 613 Bonner v. Metcalf 303 V. Stephens 1517, 1527 V. Ware 1547 Bonney v. Foss 1691 Bonser v. Miller 280, 281 Bonson v. Jones 555 Boody V. Davis 1267, 1296 V. McKenney 24, 31, 158 Boogher v. Neece 1112, 1394 Booker v. Stivender 135.9 V. Tarwater 230, 232, 9!)2 Bool V. Mix 2, 7, 10, 20, 21 Boon V. Barnes 285 TABLE OF CASES. References are to Sections. Boon V, Hunter V. Mc Henry Boone v. Armstrong V. Chiles V. Clark V. Knox V. Moure V. Telle s V. Tipton 392, 433 929, 953, 990 1487 1508, .1529 632, 718, 723 1937 223, 225 1456 698, 715 Booraem v. Railroad Co. 449 V. Wells 1981 Boorman v. Sunnuchs 492, 501 Booth V. Adams 1873, 1919, 1922, 1940 V. Barnum 1514, 1517 V. Cook 1146, 1151 V. Hynes 295 V. Oliver 1601 V. Ryan 955 V. Starr 932, 936, 939 V. Strippleman 381, 384 V. Tiernan 1475 V. Upshur 384 Boothby v. Hathaway 843, 928 V. Stanley 1359 Boothroyd v. Engles 217, 218, 1172 Border State Sav. Ins. v. Wilcox 1563 Boreel v. Lawton 903 i^orel V. Rollins . 1035 Borer v. Lange 340, 424, 425, 429 Bork V. Martin 1835 Borkenhagen v. Vianden 381, 399 Borland v. Marshall 120 V. Walrath 1196, 1197, 1205 Bornheimer v. Baldwin 1921 Borough of Easton, Appeal of 461 Borrell t'. Borrell 1917 Borrowscale v. Tuttle 1559 Borst V. Corey 260 V. Empie 528, 531, 549, 551 V. Simson 621, 703 Borum V. King 279 Boscawen v. Bliss 814 V. Canterbury 485 Boshor I'. Stewart 1117 Boskowitz V. Davis 1835, 1836 Bosley V. Shanner 81 Boston V. Richardson 393, 448, 453, 476, 477 V. Scars 169 Boston & A. K. Co. v. Charlton 9S6 Boston & W. R. Co. v. Sparhawk 354, 355, 367 Boston Bank v. Chamberlin 2, 14 Boston, Concord & Montreal R. Co. V. Gihnore 1729 Boston Franklinite Co. v. Condit 1783, 1788 Boston Safe Deposit & T. Co. v. Bankers' & Mechanics' Tele- graph Co. 1750 Boston Water Power Co. v, Bos- ton 424 Boswell V. Goodwin 1517 Bostwick V. Atkins 25 V. Leach 744, 1605 V. McEvoy 1399, 1324 V. Powers 1481 V. Williams 892 Bosworth V. Danzien 397 V. Sturtevant 326, 384 Botsford V. Morehouse 1259 Bott V. Burnell 410, 414 Boughton V. Bough ton 1277 V. Sandilands 218 Boulden v. Lanahan 1559 Bouldin v. Miller 660, 667 V. Reynolds 95 Boulo V. New Orleans M. & T. R. Co. 472 Boults u. Mitchell 1604 Bounds V. Little 1102, 1564 Bourne v. Bourne 296 Bours V. Zachariah 1207, 1208, 1209, 1212 Boursot V. Savage 1533 Boutwell V. Steiner 1453 Bovee v. Hinde 1224, 1236, 1237, 1269, 1292 Bowden v. Bland 1214 V. Parrish 1125 Bowe V. Bowe 104 Bowen v. Allen 326 V. Beck 798 V. Bell 303, 304 V. Bowen 715, 716 V. Conner 503, 505, 510, 511, 534, 549, 551 V. Fassett 1455 V. Galloway 323 V. Guild 126 V. Hughes 111 V. Preston 1862, 1866 V. Prout 400, 1385 V. Swander 1892 V. Thrall 828, 896 V. ^Vickersbam 337 Bower v. Bank 239 V. Bowen 1969 V. McCormick 260 Bowers v. Andrews 344 V. Bowers 1600, 1603 V. Hechtman 1117 xxxiii TABLE OF CASES. References are to Sections. Bowers v. Oyster 1-139 Bowos r. Law 815 Bowie V. Brahe 1-2 V. Stonestreet 44 Bowker v. Bunlekin 1310 V. Seymour 718 Bowlbv V. Thunder 1168 Bowles V. Beal 331 V. Br ice 323 V. Wathan 99 Bowling V. Cook 1420 V. Uoark 125 Bowman v. Anderson 1566 V. GriiHth 1292, 1396 V. Robb 1067 V. Taylor 257 V. Walthen 503 V. Weltig 1163 Bowne v. Wolcott 845, 928, 943, 947, 953, 954 Bowser t'. Cole 1339,1350 V. Cox 1930 Boxheimer v. Gunn 285, 1390 Boyce v. McCulloch 1568 V. Montauk Gas Coal Co. 153 V. Shiver 1416, 1478 V. St. Louis 189 V. Stanton 1455 V. Washburn 1605 Boyd V. Anderson 1404 V. Belmont 930 V. De La Montaigne 103, 112 V. Dunlap 275 V. Graves 354, 359 V. Mundorf 1413, 1497 V. Slavback 1287 V. Turpin 1026 Boyden v. Boyden 158 Boydston v. Sumpter 384, 389 Boyer v. Amet 968 V. Beiryman 54, 68 V. Joffrion 1372, 1559 V. Williams 1619 Boykin u. Rain 1190, 1192 r. Rosenfield 1601, 1605 V. Smith 1138 Bovle V. Edwards 924, 944, 969, 984 Boynton v. Rees 267, 1529, 1570 V. Reynolds 1071 Bozeman v. Browning 11, 13, 35 Brabrook v. Bank 1220, 1289 Brace v. Marlborough 1402 V. Yale 1656 Bracken v. Cooper 1836, 1840, 1852 V. Jones 1867, 1874 V. Miller 1529, 1534 Bracket t). Norcross 1865. 1S66 xxxiv Brackett v. Barney 1252, 1303, 1305 V. Evans 305 V. Goddard IGOl, 1612, 1651 V. Ridlon 1529 Bradbury v. Davis 1394 Bradford v. Bennett 1782 V. Cressey 479, 488, 490 V. Dawson 1159, 1164, 1165, 1167 V. Griflin 575, 578, 614 V. Kimberly 1908 V. Randall 1063, 1067, 1080 Bradish v. Yocnm 335, 33S Bradlee v. Whitney 1514, 1517 Bradley v. Ballard 144 V. Boynton 1926 V. Bryan 1409 V. Dike - 870 V. Fuller 1960, 1967 V. Irish 88 V. Peixoto 660, 670 V. Rice 501 V. Riches 1533 V. Tittabawassee Boom Co. 539 V. Walker 753, 782, 783 V. West 1130, 1133, 1134 V. Whitesides 10'22 Bradner v. Faulkner 1619 Bradshaw v. Crosby 856, 891, 958, 962, 96 7, 986 V. Van Winkle 6 Bradstreet v. Clark 678, 730 V. Dunham 431, 432, 466 V. Huntington 367, 1879, 1 880 V. Oneida 16 7 Brady v. Evans 575, 587 V. Huff 1259, 1862 V. Peck 968 V. Spurck 928, 933, 974, 1394 Bragg w.Paulk 1396 Brainard v. Boston & N. Y. Cent. R. Co. 449, 463 V. Hudson 1563 Braintree v. Battles 1836 Braman v. Bingham 962, 967, 1303, 1304, 1311, 1313 V. Stiles 664 V. Wilkinson 1563 Bramberry's Estate 1792, 1797, 1800, 1802, 1806, 1809 Bramlett v. Roberts 1487 Bramwell v. Lacy 766 Branch f. Atlantic, &c. R. Co. 147 r. Griffin 1392,1393,154 7 V. Jesup 142, 146 TABLE OF CASES. References are to Sections. Branch v. Makeig 1853 Brand v. McMahon 1753 Brandlyn v. Ord 1529 Brandon v. Brown 35 V. Leddy " 337 V. Robinson 660, 664, 670 Brands v. Foster 842, 928, 943, 953, 967 V. Ogdon 397 Branger v. Manciet 893 Branham v. Turnpike Co. 485, 486 Brankley v. Tomeny 1213 Brann v. Elzey 155, 231, 583, 618 Brannan v. Mesick 619 Brannon v. Brannon 1101 Branson v. Caruthers 1248 ;;. Studebaker 311, 1G52 Brantley v. Wolf 5, 6, 9, 23, 25, 27, 31, 33 Brasington v. Hanson 233, 583, 592 Brasted v. Sutton 1497 Brattle Square Church v. Grant 712, 713, 714 Bratton's Appeal 1463 Bratton v. Adams 331 V. Clawson 398 V. Massey 575 Braxon v. Biessler 480, 484 Bray v. Adams 326, 339 V. Clapp 38 V. Hussey 524, 531, 623, 632, 647, 654 Brazleton v. Brazleton 1585 Breathwit v. Bank 1245, 1284 Breck v. Blanohard 79 Breckenridge v. Ormsby 2, 13, 54, 64 V. Todd 1239, 1463 Breckinridge v. Denny 155 Breed v. Conley 1481 V. Osborne 563, 564, 568 Breen v. Donnelly 437 Breese r. Bange 1419 Brem v. Lockhart 1380, 1389, 1392 Bremer v. Case 1524 Brendel v. Klopp 1994 Brendle v. German Ref. Cong. 650 Breneiser v. Davis 381, 383 Brennan v. Whitaker 1670, 1C72, 1732, 1735 Brereton v. Bennett 1125, 1127 Bresnahan v. Bresnahan 646 Bresse}- v. Gross 55 Brevard v. Neely 1217, 1267 Brevoort v. Brevoort 1986 Brewer v. Browne 1541 V. Hardy 268, 269, 313 Brewer v. Marshall 737, 780, 781, 782, 784, 787 Brewington v. Jenkins 430 Brewster v. Carnes 1421, 1422 V. Kitchell 6 75 Brewton v. Watson 314 Brice v. Osgood 1947 Bricker v. Bricker 858, 860 Brickett v. Spofford 126 Bridge v. Wellington 311, 568 Bridge Co. v. Schaubacher 452 Bridgeport Bank v. New York & N. H. R. Co. 1331 Bridger v. Pierson 504, 506, 528, 529, 548 Bridges v. Bidwell 2, 1423 I'. Winters 1340 Bridgewater v.. Bolton 575 Bridgford v. Barbour 1884, 1887 Briggs r. Beach 274 V. Boyd 89 V. Glenn 1349 V. Jones 1583 V. Morse 96 7 V. Prosser 131 r. Rice 1514, 1547 Brigham v. Broun 1455 V. Evt'leth 1917 V. Fayerweather 49, 63, 67, V. Shattuck 1 \j 728 V. Smith 534 Bright V. Adams 1230 V. Buckman 1436, 1437, 1483, 1489, 1559, 1568, 1571 Brightman r. Brightman 1560 Brimmer v. Boston 912 Brinckerhoff v. Lansing 1484, 1521, 1581 t'. Lawrence 1277 Brinegar v. Chaffin 257 Bringholff v. Munzenmaier 1734 Brinkley v. Bethel 1061, 1062 Brinkmjin v. Jones 1511, 1517, 1522, 1563, 1576, 1578 Brinley v. Kupfer 1917 ?•. Mann 1050, 1079, l(t80 V. Whiting 121 , 140 Brinton v. Seevers 1177, 1178 Briscoe r. Power 1553 /•. Puckett 363 Bristol Manuf. Co. v . Barnes 466 Bristow V. Cormican 496 V. Wood 780 British & Am. Mort. Co. V. Long 326 Brittain v. McKay 1627 V. Work 1220, 1248, 1303 XXXV TABLE OF CASES. References are to Sections. Brittin c. Handy 1836, 1838, 1840, 1852, 18(i2 Brittimun v. Jones 1886 Britten's Appeal 1403, 1407 Britton v. Ferry 437 V. Stanley 1364 V. Wriglitnian 213 Hroadnax r. Baker 481 Broadwater v. Darne 78 Broadway v. State 686, 692 Brockenborough v. Melton 1452 Brocket v. Fescue 303 Brockway r. Harrington 101, 109, 113, 267, 275, 292 Broderick's Will, In re 1867 Brodie v. Watkius 837 Brolasky v. Furey 1239 Broliar v. Marquis 602, 608 Bromley v. Mitchell 1232 Bronner v. Frauenthal 1102 Bronson v. Coffin 785, 786, 793, 794, 798, 958, 1033 V. Wanzer 1547 Brookbank c. Kennard 42, 44 Brooke's Appeal 1451, 1463, 1472 Brookfield v. Goodrich 1455 Brookhaven v. Strong 472 Brooklyn Life Ins. Co. v. Bled- soe ' 703 Brookman v. Kurzman 335, 336 V. Smith 592 Brooks V. Allen 1340 V. Berryhill 79, 88 V. Black 968, 972, 981, 986 V. Britt 338 V. Chaplin 1132, 1165 V. Davey 1994 V. Fowle 1862 V. Isbell 1251 V. Jones 593 V. Kearns 47 V. Lester 1431, 1433 V. Marbury 1113, 1284 V. Moody 930, 962, 967 V. Owen 1391 V. Reynolds 770 V. Rooney 254 Broome v. Beers 1521, 1582 Brophy v. Richeson 424, 484, 498 Brophy Min. Co. v. Brophy & D. Gold Min. Co. 1563, 1568, 1575, 1578 Brotherton v. Hatt 1534, 1537 Broughton v. Howe 1968 Broussard v. Dull 1133, 1170, 1459 Brouwer i-. Jones 765, 771, 780 Brower v. Callender 92 Brower v. Fisher 51 V. Witmeyer 1409, 1412, 1413, 1425 Brown v. Allen 913, 1)19, 95S V. Anderson 323, .503, :>W, 556 V. Austen 1267, 1282, 1307, 1324, 1325 V. Bailey 404 V. Baldwin 1678, 1693 V. Banner Coal & Oil Co. 1394, 1395, 145] 0. Bates 1824 V. Bennett 718 V. Blydenburgh 1427 W.Brown 51,547,1009,1012, 1217, 1218, 1230, 1,233, 1234, 1267, 1271, 1273, 1795, 1958, 1970 V. Caldwell 623, 649 V. Carter 283 V. Chadbourne 477, 480 V. Chambers 331, 339 V. Coble 339, 343 V. Cockerell 369 V. Cody 1529 V. Cohn 1081 V. Combs 223, 237 V. Conner 555 V. Corbin 1697, 1699 V. Cranberry Iron, &c. Co. 339, 418, 503, 516, 1958 V. Danforth 1240, 1279 V. Dean 1462 V. Dickerson 968 V. Dressier 37 V. Eastman 1093, 1547 V. Elmendorf 1526 V. Farran 1144, 1159 V. Feagins 918 V. Ferrell 602 V. Fox 1694 V. Freed 63 V. Gaffney 1466, 1563 V. Gale 1814 V. Graham 1862 V. Great East. R. Co. 781 V. Guice 337, 338 V. Heard 413, 466, 479 V. Hearon 981 V. Hogle 1846, 1873, 1875 V. Homan 1835, 1836, 1921 V. Huger 381 V. Jackson 1400 V. Jordhal 1071 V. King 131 V. Kirkman 1451, 1472 TABLE OF CASES. References are to Sections. Brown v. Lazarus 1458 V. Lunt !122, 1435 V. Lyon 602 V. McCune 5 V. Manter 1109 V. Mattocks 575 V. Meady 520 V. Metz 889, 939 V. Miles 52, 54 V. Moore 1125 V. Morrill 381, 437 V. Nichols 1660 V. Feck 79, 91 V. Pforr 1036 V. Pierce 79, 81, 85 V. Pinkbam 1340 V. Rawlings 271, 291 V. Reyuolds 1252, 1303, 1304 V. Rickard 505, 521 V. Simons 1489 V. Simpson 1442 V. South Boston Sav. Bank 855, 857, 860 V. Staples 979, 988 V. Stutson 1310 V. Swift 1161 V. Taylor 924 V. Thissell 551 V. Thurston 1624 V. Tomlinson 840 V. Turner 1697 V. Vandergrift loDS V. Vanlier 1300 V. Yolkening 1563, 1568, 1570 V. Warren 346, 1937 V. Welch 1523, 1527 V. Wellington 1888, 1933 V. Wells 139 V. Wheeler 1942, 1947 V. Willey 339 V. Young 853, 908 Brown Oil Co. v. Caldwell 481, 482, 490 Brownback o. Ozias 1495 Browne v. Kennedy 480 Brownell v. Talcott 87 Browning v. Atkinson 355, 356, 384, 3S9 v. Wright 834 Brown son w. Hull 1792, 1800, 1814 V. Scaiilan 1136 Broyles v. Waddel 1997 Bruce v. Croniar 239 V. Nicholson 1792, 1802, LSI 2, 1814 V. Osgood 1942 V. Wood 316, 318 Bruckner c. Lawrence 437 Brumagim v. Tillinghast 87 Brundage v. Biggs 1559 Bruns v. Schreiber 861, 863, 880, 951 Brunson v. Brooks 1563 Brunswick-Balke-Collender Co. v. Brackett 1162, 1165, 1179 Brunswick Sav. Inst. v. Grossman 411, 413, 414 Bryan v. Atwater 1881 V. Bradley 203, 208, 313, 568 V. Harvey 1547, 1563 V. Lawrence 1711, 1721 V. Ramirez 1163 V. Stump 1041, 1185, 1949 V. Tormey 1522 V. Uland 896 V. Wash 1218, 1220, 1267, 1276, 1277 V. Wisner 321, 326 Bryant v. Bryant 1217, 1286 V. Crosby 1620 V. Erskine 646 V. Hunter 303 V. Maine Cent. R. Co. 381, 388 V. Peck, &c. Co. 86, 88 V. Wilson 828 Brydon v. Campbell 1441, 1468, 1469 Buccleuch v. Board of Works 4 71 V. Wakefield 538 Buchan v. Sumner 1404 Buchanan v. Ashdown 3o6 V. Balkum 1547 V. Griggs 22 V. Hazzard 37 V. Hubbard 5, 7, 8, 9, 23, 25, 31 V. International Bank 1368, 1482, 1484 V. Kauffman 923, 925 W.King 1836, 1852, 1879, 1921 V. Sahlein 85 V. Stewart 418 V. Tracy 254 V. Whitman 320, 402 V. Wise 1102, 1525 Buck V. Adams 752 V. Axt 87, 89 V. Backarack 752 V. Holt 1568 V. Martin 1906 V. Nurton 1647 V. Paine 1513, 1517, 1522 V. Pickwell- 1600, 1603 V. SpolYord 1884, 1917 V. Squicrs 488, 164 7 xxxvii TABLE OF CASES. References are to Sections. Bnckelew v. Estell 723 Biiokey v. Riiokcy 48, 49, 101 Buckiii'ifhaiii r. llanna 997, 1488 Buckle r. FnnUTicks 76S V. Milclu'll 293 Buoklon V. llustcrlik 1148, 1175 Buckler's C:u^e 5G2 Buckley's Ai)peal 305 Buckley i\ Early 1J16 Bucknall v. Story "87 Buckuam r. Bucknam 448 Buckner v. Anderson 355, 381, 388 V. Ilendrick 383 V. Street 833, 901 Buckout I'. Swift 1760 Budd i\ Brooke 384, 564, 565 V. United Oarriasie Co. 883 Buell I'. Irwin 1146, 1163, 1171, 1213 Buetell V. Courand 2000 Bueter v. Bueter 81 Buffalo, N. Y. & Erie R. Co. v. Stigeler 324, 384, 400 Buffington v. Gerrish 1390 V. Grosvenor 163 Buff urn V. Green 271, 272, 1240 V. Hutchinson 575 Buford I'. Gray " 386 Bugbee's Appeal 1513, 1563 Bugbee v. Sargent 644 Bu'-gy Co. V. Pegram 1135 Building Asso. v. Clark 1380, 1501 Bulkley v. Buffington 1292 Bull V. Follett 825 V. Griswold 1619, 1620, 1627 BuUard v. Briggs 271, 295, 298 V. Goffe 603 Bullen V. Denning 531 Bullene u. Garrison 1122 Bullitt v. Taylor 1292,1297 Bullock V. Battenhousen 1555 V. Hay ward 1925 V. Knox 1963 V. Wallingford 1455 V. Whipp 1499 V. Wilson 481 Bumgardner r. Edwards 1942, 1947 Bumpus V. Platncr 1529, 1530 Bunce v. Gallagher 10;39 Bunch V. Hurst 99 V. Nicks 626, 527 Bundy V. Birdsall 237 V. Iron Co. 1280 V. Ridenour 975 Bunker v. Gordon 1532 V. Steward . 87 Bunn V. Bunn 526 v. Wells 582 Bunn V. Winfhrop 277, 1277, 1278 Runnel v. Witherow 281 Bunting v. Jones 1409, 1415 r. Ricks 1517 Burbach v. Schweinler 424, 427, 456, 458 Burbank v. Gould 303 j;. Pillsbury 647, 771, 798 Burch V. Burch 1884, 1886 V. Carter 1547 Burchard v. Roberts 1846 Burdell v. Taylor 432 Burdeno v. Amperse 41 Burdick v. Burdick 121 Buren v. Hubbell 931, 959 Burford y. McCue 217 Burge V. Smith 316, 319 Burger v. Miller 1042 Burgess v. Pollock 50 Burgett V. Taliaferro 1846 ;;. Williford 1846, 1847 Burgh 11. Francis 1404 Burghardt v. Turner 1819 Burgwin v. Bishop 1365 Burhaus v. Ilutcheson 1424 V. Van Zandt 1846 Burk V. Burk 892 I'. Clements 962 V. Hill 880, 881, 882 V. Sproat 1267, 1271 Burke v. Adams 163, 121S, 1234, 1276, 1290, 1293 V. Allen 1486 V. Beveridge 953, 1547 V. Gould 89 V. Nichols 846 V. Taylor 103, 115 Burkett v. Scarborough 1188 Burkholder v. Casad 1218, 1228, 1277 V. Markley 381, 389, 432 Burkle v. Levy 1 1 7 Burks V. Hubbard 1030 Burleigh v. Coffin 302 Burleson v. McDermott 1560 Burley c Russell 5 Bian V. Burn 1404 Hurnaby v. Equitable Revers. Soc. 2 Burnap i;. Sharpsteen 1220, 1314 Burnell v. Maloney 363 Burnett v. Burnett 613 V. McCluey 330, 400, 1067, 1182, 1188, 1346, 1359, 1364 V. Pratt 1824 V. Strong 619 V. Wright 1331 TABLE OF CASES. References are to Sections. Bumham v. Ayer 1340, 1342, 1345, 1349, 1365 .V. Brennan 1517 V. Burnliam 674 V. Dorr ' 305 V. Farmers' Loan and Trust Co. 1453 V. Kid well 54, 68 Burns v. Berry 1484, 1486 r. Byrne 1848, 1892 V. Dreyfus 1886 V. Lynde 1328 V. Martin 354 V. Weesner 579, 614 Burnside v. Twitchell 1667, 1721, 1731, 1745, 1747 V. Watkins 1972 V. Wayman 1331 Burr V. Lamaster 877, 882 V. McDonald 1051, 1053 V. Mills 1639 V. Mueller 1838 V. Wilson 7 Burrell v. Burrell 369 Burrill v. Nahant Bank 1082 Burris v. Fitch 364 Burroughs v. Richman 76 Burrow v. Railroad Co. 323 Burrus v. Meadors 1862, 1866 Bursinger v. Bank 74 Burson V. Andes 1196 Burt c. Baldwin 1575 V. Busch 438, 443 V- Cassety 1563 V- Dewey 936 V. Quisenberry 49, 97, 98, 101, 109, 110, 117 V. Rattle 144 Burtners v. Keran 997 Burton's Appeal 141 Burton v. Bovd 1228, 1286 V. Le'Roy 279, 1060, 1071, 1076 v. Martz 1476 V. Pettibone 1144 V. Pressly 1348 V. Reeds 968, 997 V. Scherpf 1609 V. Wells 1259 Burwell V. Fauber 1547 i\ Jackson 829 Bury V. Young 1226, 12.34, 1273, 1309 Busch V. Huston 1848, 1873, 1876 Buse V. Russell 485 Busenbarke v. Ramey 1392 Busev V. Reese 285 Bush r. Bradley 1935 V. Brown 85 V. Bush 1404, 1527 V. Gamble 1913 V. Golden 1482 V. Johnson 109, 111 V. Lathrop 1425, 1427, 1486 Bushell V. Bushell 1499 Bushey v. South Mountain M. & I. Co. 341 Buss V. Dyer 534 Bussing V. Crain 1453 Buszard v. Capel 1637, 1649 Butcher v. Peterson 944, 968 V. Yocum 1513 Butler's Case 666 Butler V. Barkley 1396 V. Barnes 928, 930, 932, 969, 983 V. Brown 1170 V. Butler 1785 V. Gale 881, 882 V. Heustis 602 V. Maury 1406 V. Myer 273 V. Page 1667, 1745 V. Phelps 1576 V. Roys 1965, 1977 V. Stevens 1513, 1524, 1568, 1570, 1576 V. Thornburg 1409 V. Viele 1499 Butler Savings Bank v. Osborne 1S28 Butler & Baker's Case 1240 Butman v. Hussey 833 Butrick v. Tilton 1248 Butt V. Riffe 882, 892, 910 Butte Hardware Co. v. Schwab 175 Butterfield v. Beall 1022, 1028, 1185 r. Smith 1394, 1400, 1401 Butternuth v. St. Louis Bridge Co. 480, 485, 486 Buttlar V. Rosenblath 1792, 1800, 1X02, 1812 Buttrick v. Holden 1513, 1514 Butts V. Cuthbertson 1082 Buzzell V. Cummings 1741, 1746, 1748, 1755 V. Gallagher 1942, 1947 Byam v. Bickford 238, 241 Byars v. Spencer 1217, 1218, 1220, 1234, 1236, 1240, 1241, 1267, 1269, 1289, 1301 Byassee v. Reese 16o6, 1608 Bybee v. Hageman 338, 402 Byers v. Carll is 78 V. Engles 1563 xxxix TABLE OF CASES. References are to Sections. Byers v. Fowler V. IMcClanahan V. Mullen Byington r. IMoore Byles V. Tome Byram v. (lordon Byrne v. JMoreliouse Byrnes v. Rich Byrora v. Chapin 1527 1218, 1328 303 1240, 1276 1420, 1424 1555 256 944, 947, 948, 949 I 1761, 1762 ' Cabeen v. Breckenridge 1563 Cabell V. Gnibb 1163 Cable V. Cable 526, 1109, 1175 V. Ellis 1588 Cadeau «. Elliott 434, 43H Cadell V. Allen 1021, 1022, 1040 Cadmus v. Fagan 869, 872 Cadwalader v. Tryon 828 Cady V. Shepherd 1025, 1035, 1832 Cagger v. Lansing 1324 Cahalan v. Monroe 1529 Cahall V. Citizens' Mut. Building Asso. 1184, 1211 Cain V. Cox 1517 V. Furlow 1865, 1880 V. Hanna 1463 V. Ligon 44 V. McGuire 1608 V. Monroe 120 V. Warford 48 Caines v. Grant 1771, 1773 Cains v. Jones 280 Cairo & St. L. R. Co. v. Parrott 1338 Cake's Appeal 1410 Calais v. Bradford 394 Calcote V. Elkin 948 Calder v. Chapman 1462, 1466, 1482, 1488, 1502, 1506 Caldwell V. Alsop 1619, 1622, 1631 V. Carrington 1508 V. Center 331 V. East Broad Top R. Co. 681 V. Fulton 537, 538, 1595, 1596 V. Kirkpatrick 918 V. Neely 1879 V. Parker 1341 V. Parmer 244, 1831 Cales ?;. Miller 1143 Calhoun v. Curtis 1888, 1993 i'. Ilannan 310 V. Hays 1942, 1943, 1949 Calhoun Co. v. American Emi- grant Co. 1314 xl California State Tel. Co. v. Alta Tel. Co. 175 Calkins v. Copley . 858, 860 V. Steiubach 1990 Call V. Carroll 4 76 Callanan v. Merrill 1401 Callaway v. Fash 1177,1178 V. Hcarn 303 Callaway M. & M. Co. v. Clark 1(;9 Gallery v. Miller 102 Callis V. Day 29, 31, 158 Calmady v. Calmady 1955 Calmes v. McCracken 1410 Calton V. Lewis 321, 323 Calumet, &c. Dock Co. r. Russell 1128, 1159, 1165, 1189, 1196, 1197, 1206 Calumet Iron & Steel Co. v. La- throp 1712, 1717 Calvert v. Aldrich 1898, 1899 V. Nickles 295 Calvin v. Bowman 1481 V. Shinier 1628 Cambridge Valley Bank v. Delano 1361S, 1517, 1522, 1547, 1554, 1556 Camden v. Creel 484, 490 Cameron v. Culkins 1447 V. Lewis 994 Cammack v. Soran 1392 Cameron v. Thurmond 1968, 1979 Camp V. Camp ;!()0 V. Carpenter 1196, 1201, 1205 V. Cleary 664 V. Forrest 135 Campau v. Campau 1821, 1862, 1866, 1875 V. Dubois 1882 V. Godfrey 1976 Campbell's A])peal 1434 Campbell v. Brackenridge 1567 V. Campbell 102, 1846, 1873, 1992 V. Carruth 302, 323, 330, 400, 1248 V. Clark 437 V. Dearborn 1578 V. Hill 50, 68 V. Johnson 327, 337, 381, 398, 402 V. Jones 1259, i;i03 V. Ketcham 76 V. Kuhn 156, 159, 1276 V, Lowe 1955 V. McClure 869, 930 V. Mining Co. 10.54 V. INIovgan 346, 1272 V. O'Neill 16 7:i TABLE OF CASES. References are to Sections. Campbell i'. Pope 1051, 1054 V. Roach 1541 V. Roddy 1736, 1746, 1755 V. Shivers 1^62 V. Stokes 1!)66 V. Taul 1212 V. Thomas 1234, 1311 V. Vedder 1420, 1423, 1427, 1484 V. Wallace 1780, 1925 Campbell Printing Press Co. v. Walker . 1381 Campion v. Cotton 280, 281 Canada Southern R. Co. v. Geb- hard 189 Canal & Dock Co. v. Russell 1501 Canal Appraisers v. People 484, 499 Canal Commissioners v. People 472, 481, 484, 499, 501 Canal Company v. Kinzie 367 Canal Trustees v. Haven 386, 448, 452 Canandaigua Academy v. Mc- Keclmie 1082, 1100, 1119, 1159, 1447 Canedy v. Marcv 522, 529 Canfield v. Ford 1596 Canning v. Pinkham 1240 Cannon v. Barry 579, 603, 609, 610, 614 V. Boutwell 37 V. Cannon 1217, 1218, 1220, 1243, 1255, 1289 V. Deming 1109, 1176, 1177, 1178 V. Emmans 324, 340, 383 V. Handley 1312, 1314, 1321 V. Hare 16G6, 1767 V. Stockmon 1881 Cansler v. Henderson 491, 494 Cantagrel v. Von Lupin 323 Capehart v. Foster 1702, 170,3, 1707 Capell V. Moses 1963 Capen r. Peckham 1668, 1670, 16 71, 1672, 1714 V. Stevens 450 Caperton v. Gregory 1866, 1880 v. Hall 1086, 1090 Capps r. Holt 323, 344 Capron v. Kingman 506 Caraway r. Caraway 274 '■. Chancy 355 Carbine /•. Pringle 1502, 1506, 1520 Carbon Block Coal Co. v. Murphy 657, 699, 705 Card r. Patterson 1188, 1529 Cardell v. Ryder 44 Carden v. Tuck 1651 Cardigan v. Armitage 503, 507, 533 Cardwell v. Sprigg 121 Carey v. Boyle 1414 V. Dennis 1233 V. Rae 1658 Carithers v. Weaver 1846 Carleton v. Byington 1380 V. Lombard! 1172, 1396 Carley r. Parton 1937 Carli V. Tayior 1428 Carlin v. Ritter 1768 CarHsle v. Blamire 239, 801 V. Campbell 1011 V. Carlisle 1143, 1145 V. Jumper 1371 Carlow V. Aultman 167, 175, 182, 190 Carlson v. Duluth Short Line Ry. Co. 504, 531, 542 Carlton v. Cameron 1232 Carmichael, In re 49 Carnall v. Duval 1449, 1465 Carnes v. Piatt 1241, 1254 Carney v. Emmons 1408 Carolina Sav. Bank v. McMahon 596 Carpenter v. Allen 1719, 1741, 1753 V. Black Hawk r. G. M. Co. 144, 148, 150 V. BuUer 256, 257, 333 V. Carpenter 5, 48, 1836, 1845 V. Dexter 1109, 1110, 1130, 1132, 1142, 1143, 1153, 1159, 1165, 1179 V. Graber 638, 656, 694 V. Longan 1389 V. Monks 364, 438 V. Schermerhorn 1953 V. Tatro 44 V. Van Olinder 583, 602, 604, 610 V. Walker 1673, 1712, 1714, 1719, 1720, 1741, 1753 V. Westcott 732 Carpentier v. Mendenhall 1865, 1877. 1919 Carper v. McDowell 1442 Carr's Estate 1993 Carr v. Caldwell 1415 V. Clough 31 V. Dooley 303, 305, 861, 872 V. Estill 233 r. Frick Coke Co. 1196 V. Holliday 6S xli TABLE OF CASES. References are to Sections. Carr v. Lowry 795 V. Walliice 1521 C.arrell r. Potter SO Carrick v. French 1310 Carrier v, Hampton 1010 Carri"-an r. Drake 602, 603, 609, 610 V. Evans 1063 r. Peroni 106 Carrington v. Potter 1073 V. Roots 1618 Carroll, In re 97 Carroll v. East St. Louis 173, 184, 185 V. McCuUough 1736 Carson i\ Blazer 481 r. Cabeen 897, 978 V. Clark 1619 V. Fuhs 602, 603 V. McCaslin 563, 568 V. Railsback 321 V. Ray 339, 346 I'. Thompson 1216 Carter r. Alexander 829 V. Beck 898 V. Branson 650, 688 V. Bnrley 1064 V. Bvistamente 994 r. Carter 256, 1902, 1997 V. Challen 1563 V. Champion 1099, 1435. 1441 V. Chandron 990, 1040, 1041, 1067, 1159, 1168 V. Corley 1099 V. Denman 852, 903, 928, 930, 932, 933 V. Grimshaw 289 V. Hallahan 1409, 1436, 1437, 1522 V. Jackson 1099 V. Moulton 1303 V. Penn 1071, 1852, 1853, 1857 V. Portland 1517 V. Railway Co. 477, 484, 488, 491, 494 V. Reddish 602 ?;. White 410,417 V. Williams 782 V. Wingard 512 Cartmill v. Hopkins 1071 Carty v. Connolly 97, 99, 109, 113, 115, 271, 295 Caruthers v. McLaran 1159, 1168 Carver v. Coffman 1892, 1900, 1902, 1903, 1981, 1997 V. Fennimore 1887, 1892, 1898, 1906 xlii Carver v, Jackson 256 V. Loutiiain 295, 862 V. Smith 1792, 1794, 1802, 1803, 1,S12 Carvillei;. Hutchins 381, 411 V. Jacks 968, 970 Cary v. Daniels 488 V. White 285, 1390, 1393 Casborne v. Barsham 103 Case V. Case 99 V. Dexter 326, 336, 338, 343, 381, 398, 410, 414 V. Dwire ' 664, 670 V. Green 336 V. Haight 505 V. Hargadine 1472 V. Kelly 177, 178 V. Owen 1772, 1773, 1786, 1795 Case Manufacturing Co. v. Garven 1712, 1715, 1719, 1744, 1748, 1752 Casey v. Dunn 381 V. Inloes 471 Cashion v. Faina 2000 Casoni v. Jerome 1338, 1340 Caspar v. Jamison 381 Cassedy v. Jackson 119, 120 Cassell ?;. Cooke 1143 Cassiday v. McKenzie 1037 Cassidy's Succession 921 Cassidy v. Charlestown Savings Bank 326, 329, 335, 413 V. KUiije 1559 Cassilly v. Rhodes 1628 Castle V. Elder 501, 502 Caswell V. Wendell 969 Gate V. Thayer 326, 420 Gates V. Gates 525, 526, 531 V. Wadlington 481 Cathcart v. Bowman 884, 930, 959, 968 Catlett V. Starr 331 Catlin V. Henton 85 V. Hurlburt 842, 955 V. Kidder 1838, 1873 r. Ware 316, 319, 1004 Catt r. Tourle 737 Caufraan v. Presbyterian Cong. 378 Caughman r. Smith 1532 Caulkins r. Fry 74 V. Harris 943, 981 Causey v. Wiley 99 Cavalli v. Allen 1563 Gavanaugh r. .Jackson 358, 359, 361, 366 r. Peterson 1460 Cave r. Gave 1539 TABLE OF CASES. References are to Sections. Cave V. Crafts 533, 549, 1643, 1G55 Cavin V. Middleton 1514 Cavis V. Beckford 1668, 1677, 1725 V. McClary . 935 Cayce v. Stovall 1627 Caylor v. Luzadder 445 Cayton v. Walker 622 Cazassa v. Cazassa 1267, 1269 Cecconi r. Rodden 877, 905, 969, 970 Cecil v. Beaver 156, 1276, 1278, 1282, 1293, 1296, 1297 f. Butcher 12C7 Cecil Bank r. Heald 285 Centenary M. E. Church i: Parker 239 Center v. Planters' & Merchants' Bank 1380, 1524, 1557, 1559, 1560 Central Bank c. Copeland 89, 90, 1198, 1201, 1204 Central G. Min. Co. c. Piatt 148 Central Transp. Co. r. Pullman's Palace Car Co. 419 Central Trust Co. v. Wabash, St. L. &P. Ry. Co. 1547 Central Trust, &c. Co, v. Cincin- nati Grand Hotel Co. 1703 Central Wharf v. India Wharf 4 76, 813 Cessill V. State 485, 486 Chadbourne c. Gilnian 44, 45 V. Rackliff 18, 20, 24 Chadwell r. Chadwell 366 Chadwick v. Carson 326 V. Davis 464 Chaffe V. Oliver 1190 Chaffee v. Dodge 563 Chaffin V. Chaffin 424 Chairs v. Hobson 135 Chalfin i: Malone 1576 Chalker r. Chalker 700, 715 Challefoux v. Ducharme 1866, 1878 Chamberlain, Matter of 1618 Chamberlain r. Bell 1436, 1469, 1476 r. Boon 13 74 V. Chamberlain 179 V. Gorham 1108 r. Preble 924 I'. Reed 89 V. Spargur 1109, 1110, 1499 Chamberlaine r. Turner 329 Chambers v. Chambers 1791, 1792 V. Haney 1458 V. Pleak 1872 V. Rin^staff 336, 337 V. St. Louis 170, 175 Chambers r. Smith 929 Chamblee r. Tarbox 214, 216 Chambliss v. Miller 899 Champlain & St. L. R. Co. v. Val- entine 472, 499, 501, 516 Champlin v. Pendleton 448, 454, 466 Chan V. Brandt 437, 438 Chance v. McWhorter 1390, 1529 Chancellor r. Bell 575, 598, 599 V. Windham 527 Chandler v. Bailey 1109 V. Brown 915, 932, 933 V. Cheney 1794, 1802, 1803, 1812, 1814 V. Dyer 1498 V. Green 326, 384 V. McCard 398 V. Ricker 1866, 1868, 1873 V. Sanger 89 V. Simmons 10, 13, 31, 32, 33, 67, 1936 V. Spear 1165, 1171 V. Temple 1248 Chandos v. Mack 484, 488 Chaney r. State 1591 Chanome v. Fowler 1151 Chapel V. Bull 843, 943, 957, 962 Chapin v. Cram 1454 V. Crow 579 V. First Universalist So- ciety 595 V. Foss 1893, 1987 V. Harris 627, 632 V. School Dist. 619, 623, 632, 635, 637, 650, 678, 681 V. Shafer 21 Chapleo v. Brunswick Build. Soc 151 Chapman v. Abrahams 990 I'. Chapman 10 V. Crooks 412, 414 V. Edmands 375, 479 V. Emery ' 297 V. Gordon 625, 749 V. Holmes 924, 928 V. Kimball 472, 852, 928, 930 V. Lono- 524, 1619, 1624 V. Miller 1389 V. Pingree 708 f. Polack 424,431,437 r. Sims 209, 1394 V. Twitchell 375, 376 i: Union Mut. L. Ins. Co. 1670, 1703, 1704 V. Veach 959, 1335, 1619, 1628 xliii TABLE OF CASES. References are to Sections. Chappell V. New York, &c. R. Co. 504, 534, 550, 551, 555 V. Trent 97 Charles v. Hastedt 6 V. Patch 33S, 33:i Charles River Bridge v. Warren Bri.li^e 41!) Charleston C & C. R. Co. v. Leech 270, 1979, 1981, 1985 Charlestown v. Tufts 476 Charter r. Graham 1463 r. Trevelyan 162 Chartiers' Block Coal Co. v. Mel- lon 537, 1596 Chaser. Breed 1220 V. Kittredge 1094 V. M'Donald 1498 «. Palmer 223, 1328, 1329 V. Phillips 89 V. Tacoma Box Co. 1714, 1748 V. Weston 932 V. Whiting 11C5, 1167 I'. Wingate 1708 Chatham v. Bradford 1472, 1479 V. Brainerd 448 Chauncey v. Arnold 1331 Chautauqua Co. Bank v. Risley 181, 256 Chauvin v. Wagner 1159,1182, 1194, 1195 Chavener v. Wood 244, 1585 Chavez v. Chavez 1230, 1232 Cheek V. Herndon 1172 V. Nail 1344, 1351 Cheeney v. Nebraska, &c., Stone Co. 363 Cheesebrough v. Millard 1403 Chenery v. Dole 1940 Cheney v. City Nat. Bank 962, 967 V. Straube 892, 903, 919, 921, 927 V. Watkins 208, 265, 268, 312 Cherbonnier v. Evitts 99 Cherry v. Arthur 1668, 1714, 1721, 1740, 1741 V. Boyd 378 V. Herring 1224, 1248, 1252 1303 Cheshire v. Barrett 15S Chesley v. Frost 1349, 1365 Chesnut v. Shane 1139, 1182, 1188, 1215 Chess V. Chess 1290, 1292 Chess-Carley Co. v. Purtell 585 Chessman v. Whittemore 1259, 1340, 1346, 1347 xliv Chester i;. Breitling V. Greer V. Kumsey Chcsterman v. Gardner Clieval i'. Nichols Chew 17. Bank V. Barnet Chicago V. Gage V. Hill V. Rumsey V. Witt 1210 1582 1164 1563, 1566 1499 54, 67 997 1328 1522 463, 488 1371, 1513, 1514, 1517 Chicago & E. I. R. Co. v. Wright 1518, 1520, 1522, 1569 Chicao-o, &c. Land Co. v. Peck 1314, 1320 Chicago & N. W. Ry. Co. v. Clin- ton 486 Chicago & Pac. R. Co. v. Stein 480 Chica<'-o, B. & Q. R. Co. v. Lewis 175, 1082 Chicago Dock Co. v. Kinzie 338 ChicafO Lumber Co. v. Ashworth 244 Chicago, R. L & P. R. Co. v. Ken- nedy 1522, 1547 Chick V. Sisson 1226, 1252, 1254 Cliild, In re 52 Child V. Baker 1099 V. Douglas 756, 780, 804, 805 V. Picket 413 V. Starr 488, 490 V. Wells 1819 Childers v. Eardley 249 Childs V. Alexander 955 I'. Hayman 1966 V. Kansas City, St. J., &c. R. Co. 1866, 1892, 1919 Chiles V. Conley 125, 206, 210, 1523 Chiniquy v. Catholic Bishop 1133 ('. People 405 Chinn v. ISIurray 1906 Chinoweth r. Haskell 383, 384 Chipman v. Hastings 1937 Chippewa Lumber Co. v. Trember 802 Chirac v. Chirac 165 Choate v. Burnham 523 /;. Kimball 1668, 1672, 1676, 1720, 1721 Choteau v. Jones 1435, 1442, 1846 i\ Thompson 1454 Chouquette r. Barada 1056, 1082 Chouteau r. Allen 1U54, 1163 r. Suydam 1252 Chrisman c. Wyatt 1235 Christ Church v. Lavezzolo 734 TABLE OF CASES. References are to Sections. Christian v. Cabell 829 V. Dripps 1668 Christian Union v. Yount 182, 184 Christie, In re 53 Christie v. Gage 124, 132," 138, 1880 V. Hale 1466, 1584 Christine r. Whitehill 832 Christy v. Burch 1380, 1382 V. Dana 1487 V. Fisher ' 1846 Chrystie v. Phyfe 579 Chudleigh's Case 794 Church V. Church 1530, 1782 V. Gilman 1240, 1281, 1282 V. Grant 628, 631 V. Meeker 448, 487 V. Ruland 1529, 1530 V. Schoonmaker 122 V. Stiles 381, 388, 448, 458, 495 V. Waggoner 1879 Churcher v. Guernsey 1513 Churchill v. Marks 662 V. Morse 1404 r. Scott 85 Chute V. Washburn 620, 632, 690, 708, 731 Cilley V. Chikls 324, 352, 381 Cincinnati v. Newell 530, 542 Cincinnati & Ga. R. v. Minis 449 Cincinnati, Ind. &c. Ry. Co. v. Smith 1547, 1573 Cincinnati, W. & Z. R. Co. r. Iliff 1254, 1256, 1303, 1304 Citizens' Bank v. Knapp 1718, 1760 Citizens' F. Ins. S. & L. Co. v. Doll 1021, 1042 Citizens' Nat. Bank v. Dayton 1437, 1522 City Bank v. McClellan 239 V. Smith 622 City Council v. Moorhead 1082 City Nat. Bank's Appeal 1411, 1413, 1498 City Nat. Bank v. Kusworm 88 Clabaugh v. Byerly 1410, 1482 Clack V. Mackin 1420 Clader v. Thomas 1451, 1472 Claflin V. Carpenter 1601, 1605, 1606 V. Case 903, 915, 987 V. McDonough 85, 86, 87 V. Smith 1159, 1162, 1165, 1166 Clague V. Washburn 1134, 1435 Clairborne v. Holmes 1463, 1461 Clamorgan v. Badger & St. L. R. Co. 331, 386 V. Hornsby 331, 386, 388 V. Lane 15, 1455 Clancey v. Houdlette 476 Clanin v. Machine Co. 1314 Clap V. Draper 1603 Clapp V. Bromagham 1880 V. Herdman 842, 849, 928, 944, 974 V. Leatherbee 293 V. Tirrell 295, 303, 307 Claremont v. Carlton 338, 340, 480, 484, 486 Claremont Bridge Co. v. Royce 182 Clarity v. Sheridan 1971 Clark V. Akers 1239 V. Allen 1331, 1335 V. Baird 335, 366 V. Baker 561 V. Beck 1566 V. Bos worth 15G3 V. Brown 1497 V. BuUard 1547 V. Butler 1409, 1415, 1434 V. Caldwell 77 V. Campau 483 V. Chamberlain 289 V. Cliamberlin 323 r. Clark 36,38,1783,1802 V. Conroe 882, 910, 915 V. Cottrel 522 V. Crego 1877, 1919 V. Crounshaw 16 71 V. Davis 125, 364 V. Devoe 535, 735, 7 72, 790, 793, 938 V. Edwards 1207 V. Farmers' Woolen Manuf. Co. 1056 V. Fisher 852, 868, 959 V. Flint 1386, 1390 V. Fuller 1532 V. Gifford 1307, 1310 V. Goss 1459 V. Graham, 1021, 1022, 1086 V. Gregory 338 V. Ilershey 1886 V. Hillis 526 r. Holland 154 7 V. Holton 717, 718, 722, 730 V. Houghton 1102 V. Jenkins 1557 V. Kirkpatrick 48, 58, 100 V. Lindsey 1846 i». Lyons 828 V. Mackin 1487, 1504, 1506 xlv TABLE OF CASES. References tire to Sections. Clark I'. McLean i;V2 V. IMcXoal 1530 V. Martin 635, 705, 707, 731, 742, 743, 771, 780 V. Miimford 921, 923, 925, 986, 987, 1028 V. Miinroe 1409, 1412, 1414 V. Parker 448, 449, 450, 455 V. Parr 943, 968, 981 V. Perry 967 V. Powers 338 V. Providence 475 V. Rainey 1846 V. Redman 828 V. Reyburn 1760 V. Rochester City R. Co. 463 V. Scammon 398, 407 V. Sidway 1830 V. Society 373 V. Stephenson 1989 V. Swaile 162 V. Swift 928, 930, 967 U.Tate 18,19,31,33 V. Troy 270 17. Turnbull 80 V. Van Court 16 V. Vaughan 1879, 1880 V. Wethey 334, 338, 364, 366 V. Whitehead 830 V. Wilson 1145 V. Ziegler 958, 959 Clarke v. Brookfield 638, 656, 658, 684, 718 y. Central R. Co. 182 V. Cogge 534 V. Courtney 1040, 1042 V, Hardgrove 944 r. Imperial Gas Light Co. 1082 V. M'Anulty 892, 921 V. Milligan 240 V. Tappin 303 V. White 1463 Clarkson v. Clarkson 613, 616 Clary v. McGlynn 338, 389 V. Owen 1767 Clason V. Rankin 1871, 1919 f. Shepherd 1589 Claughton v. Claughton 1963 Clavering v. Clavering 1277 Clay V. Chenault 565, 602 V. Wyatt 119 Clay County Land Co. v. Monta- gue County 376 Claycomb v. Munger 933, 936, 939, 974 Clayton v. Liverman 1254 V. McCay 1895 xlvi Clayton v. Merrett i\ Rose Clearwater v. Rose 1037 1185 575 125, 140, 367, 369, 388 V. Smith 3,S1, 385 CI egg V. Hands 780 Cleland v. Long 1091, 1162, 1165 Clem V. Newcastle, &c. R. Co. 1009 Clement v. Bank 388, 411, 851, 903, 928, 973 V. Bartlett 1372 V. Burns 475, 476 V. Burtis 642 Clements v. Cates 1835, 1836, 1852 V. Collins 923 V. Kyles 381 V. Landrum 297 V. Pearce 326, 336, 381 V. Wells 815 Clementson v. Streeter 955 Clementz v. Jones Lumber Co. 1555 demons v. Elder 1462, 14C6 Clendaniel v. Hastings 1328 Cleveland v. Choate 429, 431 V. Hallett 593 ih Obenchain 466 V. Shannon 1406 V. Sims 324, 331, 339, 343 Cleveland, &c. Ry. Co. i". Coburn 649, 650, 656, 696, 718 Clevinger v. Ross 1563 Click ('. Green 944, 968 Clifford V. Koe 616 V. Turrell 295 Clifton V. Clifton 113 V. Jackson Iron Co. 560 Clifton Heights Land Co. v. Ran- dell 236, 348, 412, 1706 CHmie v. Wood 1725, 1765 Climer r. Wallace 381, 437 Clinch River Veneer Co. v. Kurth 1125, 1193 Cline V. Jones 1217, 1230, 1233, 1237, 1276, 1277, 1278 Cloos V. Cloos 1792, 1795 Clore V. Lambert 1731, 1748 Close V. Burlington, &c. Ry. Co. 643, 731 V. Phipps 89 Clough V. Adams 99 V. Bowman 369 V. Clough 1018, 1019 Cloutman v. Bailey 602 Clow V. Plummer 219, 1913 Cloyes V. Sweetser 489 Clute V. Fisher 492, 496 TABLE OF CASES. References are to Sections. Clute V. Robison 1624 Clymer i;. Dawkins 1868,1880 C'lyiie V. Benicia Water Co. 1660 Coal Creek Co. r. Heck 1204 Coale V. Barney 1958 Coari v. Olsen 1566 Coates V. Gerlach 40, 44, 45 Coats r. Taft 36 7 Cobb V. Chase 1289 V. Davenport 496, 497 V. Hines 312 V. Kidd 1930, 1932 V. Lavalle 477, 480 V. Lucas 221 V. Taylor 404 Coburn v. Coxeter 335, 381, 383, 442 V. Ellenwood 1050 u. Herrington 1177,1178 V. Litchfield 869, 872, 962, 966 Cocheco Manuf. Co. v. Whittier 503 Cochran v. Flint 1741, 1755 V. Goodell 1824 V. Guild 869 V. Kerney 1814 V. Smith 339, 448, 464 V. Stewart 1069 Cochrane r. Moore 196 Cocke r. Montgomery 48 Cockerel! v. Cholmeley 1062 Cockey v. Milne 1435 Cockrell v. Proctor 929, 946, 953 Cockrill V. Downey 1612 Cocks V. Barker 1303 V. Simmons 1224, 1846 Cockson V. Cock 787, 789 Coddington v. Bay 1390 r. Goddard 1002 Codman v. Evans 454, 455 V. Winslow 502 Coe V. Columbus, Piqua & Ind. R. Co. 1551, 1729 V. Manseau 1563 V. Persons Unknown 1400 V. Ritter 338 V. Winters 1499 Coffey V. Hendricks 326, 336, 338, 1109, 114.3, 1148 Coffin 1-. Heath 1904, 1905 V. Portland 632, 649, 650, 718, 731 V. Ray 1406, 1531 V. Scott 543 Coffman i\ Lookout Bank 88 Cofran v. Cockran 1040, 1057 Cogan /•. Cook 1435 Cogburn r. Hunt 402 Cogel r. Rapli 7 Coggswell c. Griffith 1532 Cogswell c. Stout 1489 Cohea v. Hemingway 1846 Cohen c. St. Louis, &c. R. Co. 732 Cohn V. Hewsey 1 703 V. Hoffman 1415 Coit V. Millikin 1064 V. Starkweather 1346 Coke V. Brummell 219 Coker v. Roberts 339, 1198 Colburn r. Mason 1865, 1887 Colby V. Colby 525 V. McOmber I144 V. Osgood 953 Colchester v. Culver 1108 Colcord V. Alexander 338, 36 7 r. Swan 36 Cold Spring Iron Works v. Tol- land 490 Coldwater v. Tucker 482 Cole V. Cole 48, 49, 99 V. Gibbons 78 V. Hadley 458, 467 V. Hughes 799, 800 V. Irvine 1935 V. Kimball 931, 974 V. Lake Co. 576 V. Lee 853 V. Long 1020 V. Parkin 1352 r. Patterson 1930 V. Pennoyer 2, 18, 27 V. Stewart 1667, 1745 Cole Manuf. Co. v. Collier 1792, 1811, 1812, 1814 Colee V. Colee 1217, 1276, 1297 Colegrave v. Dias Santos 166 7, 1702 Coleman v. Ballard 968 y. Barklew 1.547,1568,1570 V. Billings 1182, 1185, 1442 V. Bresnahan 791, 930 V. Brooke 538 V. Burr 284 V. Coleman 795, 1850, 1955 V. Lyman 929, 931 V. Manhattan Beach Co. 324, 325, 342, 351 V. San Raphael Turnp. Co. 178 V. Smith 355, 356, 358, 359, 366, 434, 1390, 1447 V. State 1099 w. Stearns Manuf. Co. 1717, 1721, 1748 Coles V. Berryhill 1380, 1403 V. Coles 1830, 1831, 1917 xlvii TABLE OF CASES. References are to SeetionSo Coles V. Sims 733, 743, 773, 780, 781, 78-2, 784, 805 V. Soulsbv 2!):), 2!)S I'. Trocothick Ki-' 1-. Wooding 381, 1942, 1949 V. Yorks 381, 424 Collaniore v. Gillis 1765 Collerd V. Huson 1-")8(J Collier v. Cowger 924, 962, 974, 982 V. Gamble 840 v. Jenks 1708 CoUingwood v. Brown 1559, 1562 {'. Irwin 861 Collins V. Aaron 1464 V. Benbury 471, 481 V.Boyd 1149,1151 v.Castle 771,773,778,785, 823 V. Collins 99, 111, 1292, 1342, 1356 V. Dressier 323 V. Durward 981 V. Prentice 534, 1658 V. State 485 V. Storm 402, 406 V. Suau 899 V. Tillou 303, 744 V. Westbury 89 Collins Manuf. Co. Marcv 657, 671, 694, 705 Colomer v. Morgan 1460, 1462 Colquhoun v. Atkinson 1498 Colquitt V. Thomas 1-^29 Colton V. Seavey 381, 1004, 1008, 1386 V. Smith 1967 Columbet v. Pacheco 364 Columbia Bank v. Jacobs 146 7 Columbus & W. Ry. Co. v. With- erow 448 Columbus Buggy Co. v. Graves 182, 186, 1406 Colyer v. Hyden 1240, 1241 Coman v. Thompson 1619, 1622 Combe's Case 1021 Combs V. Hawes 31 V. McQiiinn 120 Comegys v. Clarke 90 Comer v. Baldwin 1252, 1276 V. Comer 1866 Comerford v. Cobb 1068, 1071 Comfort !'. Mosser 1294 Comings -y. Little 962,974 Commercial Bank v. Kortright 1052 1331 V. Ullman 1072 Commercial Ins. Co. v. Ives 363 xlviii Commissioner v. Thompson 898 Commissioners v. Kempshall 481 Coumionwealth v. Alger 475, 476, 480, 844 V. Chapin 480 V. Cutler 1289 V.Dudley 1262 V. Emery 1113 V. Emigrant Sav. Bank 1340, 1341, 1342 V. Frew 378 U.Jackson 1276, 1282 V. M'Clanachan 833 V. New Yoi'k, &e. II. Co. 184 V. Reading Sav. Bank 1 050 V. Roxiniry 470, 4 75, 476 V. Smith 145 V. Vincent 480 Compton V. Bunker Hill Bank 85, 86, 90 V. White 1276, 1278, 1292, 1293, 1297 Comstock V. Comstock 103, 842 V. Eastwood 1865, 1866 V. Johnson 1639 V. Smith 853 V. Son 266 Conard v. Conard 1890 Concord Bank v. Bellis 39, 156, 159 Concord Manuf. Co. v. Robertson 475, 500 Condit V. Wilson 1408, 1513, 1517, 1529 Conduitt V. Ross 793, 799 Congleton v. Pattison 788 Congregational Society v. Stark 689 Conine v. Junction, &c. R. Co. 1082 Conklin v. Conklin 1900, 1981, 1997 V. Parsons 1709 Conkling v. Brown 1942 V. Secor Sewing Machine Co. 261 Conlan v. Grace 1014, 1085, 1087, 1220, 1269 Conlee v. McDowell 1563, 1566 Conley v. Nailor 74, 75, 97, 116, 277 Conn u. Penn 378 f. Tonner 1419 Connally v. Spragins 1363 Connard v. Colgan 1251, 1292, 1296 Connecticut v. Bradish 1502, 1503 1504, 1531 Connecticut Ins. Co. v. Bulte 1846 TABLE OF CASES. References are to Sections. Connecticut Mut. L. Ins. Co. v. Albert 186 Connecticut Mut. L. Ins. Co. v. Cross 182,. 186 Connecticut Mut. L. Ins. Co. v. Lathrop 55 Connecticut Mut. L. Ins. Co. v. Skinner 602, 608 Connecticut Mut. L. Ins. Co. v. Smith 169, 175, 1511 Connecticut Mut. L. Ins. Co. c. Talbot 1420, 1422 Connell v. Galligher 1109 Conner v. Abbott 1170 V. Coffin 1708 V. Cox 1956 V. Stanley 282 Connihan v. Tliompson 1521 Connor v. Eddy 979 V. Follansbee 296, 302 V. Tippett 1259 Conover v. Sealy 1959 V. Van Mater 1499, 1588 Conrad v. Atl. Ins. Co. 285 V. Douglass 1233, 1271 V. Effinger 986, 944 V. Lane 5 V. Saginaw Miring Co. 1722 V. Starr 1431, 1434 V. Trustees 943, 968 Constant v. Am. Bap. Soc. 1390, 1534, 1537 V. University 1392, 1527, 1532, 1534 Converse v. Blunirach 1517, 1522, 1555 V. Converse 112 V. Ferre 1898 V. Porter 1472 V. Searls 134, 135 Conwell V. McCowan 1448 Cooey V. Porter 1879 Coogler V. Roberts 1872 V. Rogers 1862, 1874, 1919 Cook V. Babcock 322 V. Brown 202, 1217, 1230, 1233, 1267, 1271, 1309, 1324 V. Curtis 948, 949, 868, 1866, 1881 V. Dennis 433 V. French 1499 V. Hall 1452 V. International & G. N. R. Co. 1952 U.Knott 1124 V. Leggett 650 ?■. McClurc 488, 495 Cook V. Moore 90, 91, 1335 V. Nott 1123 V. Oliver 339 V. Par ham 1390, 1393, 1463 V. Patrick 1240, 1241, 124 2, 1282 V. State 1591 V. Stearns 1603 V. Steel 1627 V. Stone 1484 V. Toumbs 33 V. Travis 138, 1486, 1506, 1529, 1577 V. Trimble 645, 646, 649, 718 V. Walker 590 V. Walling V. Webb 4-2 1964 1'. Wesner 520 V. Whiting 1612, 1709 Cooke V. Chilcott 780, 821 V. Clayworth 74, 76 V. Cooper 1701 V. Lamotte 97 V. McNeil 1673 V. Watson 1487 Cool V. Peters Box & L. Co. 1606, 1609 Cooley V. Cooley V. Warren 1108 381 Coolidge V. Dexter 749 V. Hager 1652, 1C60 V. Melvin 289 Coombes' Case 1040 Coombs V. Anderson 155, 613 V. Beaumont 1765 V. Jordan 1619 V. Thomas 1185 Coon V. Brickett 708 Cooney v. Hays Cooper V. Adams V. Austin 549 1748 359, 366 V. Bigly 1482, 1489 V. Bloodgood 912 V. Cooper 602, 613, 616, 1793, 1802 V. Harvey 1668, 1746 1672, 1712, 1748, 1757 V. Jackson 1276 V. Johnson 1722 V. Lonan stein 552 V. Page 1331 1333, 1334 V. Standley V. Vierra 40, 44 364, 366 r. A\'ats()n 924 Cooter V. Dcnrborn 1972 1981, 1986 Coovert r. O'Connor 490 Cope V. Romeyne 1717 xHx TAULK OF CASES, References are to Sections. Copeland v. Copeland 723, 1499 r. ]\IcAdoi*y 943, 957, 958, 970 Copelin r. Slnilor 1451 Copenratli /-. Kii'iiby 52, 54, 67, 68 Ci)pis /•. Middk'toii 277 Copp r. Swift 1668, 1673 Coppin r. Fornyliough 1554 Co(piillaril r. French 1029 Corbett r. Hill 1594 I'. Laurens 1903 V. Noroross 429, 1099 V. Spencer 21 V. Wrenn 962, 964 Corbin r. Healy. 566, 613 V. Jackson 403, 404 V. Sullivan 1502, 1547 Corbit r. Smith 49, 58, 68, 99 Corbitt c. Clenny 1547 r. Corbitt 1957 Corbleys c. Ripley 375 Corcoran r. Webster 1679 Cordeviolle c. Dawson 14C2 Cordova c. Hood 1512, 1547, 1552 Core v. Faupel 1564, 1568 Corey v. Bishop 173G v. Burton 33 V. Moore 1125 Corinth v. Emery 1792, 1801, 1814 Corker v. Corker 1273 Corley v. Corley 1220 Corliss V. McLagin 1721 Cornelius, Will of, In re 1011 Cornelius i\ Ivins 638, 667, 718, 728 Cornell o. Jackson 388, 843, 851, 858, 944, 945, 956, 990 v. Todd 489 Cornett v. Dixon 431 Corning i\ Murray 1484, 1496 V. Nail Factory 529 V. Troy Iron Factory 528, 529 Cornish v. C apron 895, 906 h. Frees 1411 Cornog V. Fuller 1420 Cornwell r. Thurston 621, 530 Corpman /•. Baccastow 1406, 1466 Corrigan v. Pironi 115 IK Tiernay 1792 Corwin v. Corwin 265, 268, 280 Cory V. Cory 76, 708, 730 V. Eyre 1508 Cosby r. West 943 Costello '•. Burke 251 Coster V. Bank 1463, 1494 i\ Coster 1994 Costigan i'. Pennsylvania 11. Co. 795 1 Cottingham r. Parr 398, 418 V. Seward 377, 381, 430 Cottle V. Young 448, 455, 461, 463, 542 Cotton, Ex ])arte 1765 Cotton i\ Coit 1990 r. (Jregory 1257, 1315 V. King 1277 r. Ward 956 Coudert r. Earl 1786 V. Sayre 552, 733, 74 7, 780, 781, 784, 803, 807 CoughUn i: Barker 771, 774, 775, 776, 779, 780 V. Coughlin 1627 Coughran r. Alderete 355, 363, 382 Coulson r. Allison 116 V. Walton 1365 i\ Wing 1935 Council Bluffs Lodge v. Billups 1551 Countryman v. Deck 635, 642, 647 Conrsey v. Davis 580 Courtnay v. Parker 1404 Courtney v. Turner 167 Coutant V. Servoss 29 Cover V. Black 1402, 1404 V. Manaway 1196, 1205, 1206, 1238, 123:*, 1248, 1287 Covey V. Pittsburgh, Fort Wayne & Chicago R. Co. 1729 Covillaud v. Tanner 1935 Covington V. Stewart 1862,1880 Cowan V. Green 1463 V. Silliman 953 V. Withrow 1532 Coward v. Culver 1407 Cowardin v. Anderson 1404, 1409 Cowdrey o. Colbnrn 509, 551 Cowell t: Springs Co. 175, 181, 182, 184, 190, 657, 671, 718 Co wen V. Loomis 1563 V. Withrow 1501 Cowles V. Hardin 1485 V. Reavis 381, 385 Cowper V. Andrews 649 Cox V. Carson 1413 V. Coleman 1151 V. Esteb 1436 V. Freedley 448, 455, 461, 633 V. Gill 1196, 1207 V. God salve 1619 V. Hart 335, 337, 339 V. Hayes 402 V. Henry 303, 943, 948, 968, 974, 981 V. Holcomb 1212 TABLE OF CASES. References are to Sections. Cox V. Jones 1563 V. Louisville, N. A. & C. R. Co. 448, 449, 450 V. McGowan 381, 388, 415, 417, • 418 y. McMullin 19 72 V. Manvel 1331 V. Palmer 1366 V. Rust 339, 1092 V. Strode 968 V. Ward 1981 V. AYayt 1442 V. Wells 316, 319 Coxe I'. Smith 1963 Coy V. Miller 341, 364 Craddock v. Riddlesbarger 1620, 1627 Craft V. Russell 285, 1390, 1526 V. Wilcox 1800 V. Yeaney 389 Crafts V. Crafts 1981 V. Hibbard 324, 338 Crager v. Reis 1238 Cragin v. Powell 424, 437, 438, 492 Craig V. Cartwright 1867, 1874 V. Chandler 44 V. Donovan 928 V. Lewis 874 V. Pinson 203, 1085 V. Taylor 1935, 1940 V. Van Bebber 2, 8, 15, 18, 21, 31, 33 V. Wells 503, 516, 528, 531, 632, 635, 637, 657, 678, 723, 736 V. Zimmerman 1394 Crain v. Wright 1234, 1272 Cram v. Bangor House 1080 V. Ingalls 1101 Cramer v. Benton 1576 Crancc v. Collenbaugh 921 Crane v. Brigham 1670 V. Conklin 76 V. Crane 1196, 1197 1205, 1447 V. Dwyer 731 V. Hyde Park 678, 692 V. Patton 1610 r. Reeder 120, 166 V. Riedcr 1086 V. Stickles 274 V. Turner 1416, 1417, 1423, 1486, 1487, 1507 V. Wagoner 1887, 1892 Cranmer v. Porter 1259 Crapo r. Cameron 1874, 1.S7.S Crary v. Goodman 122, 124, 125 Crassen v. Swoveland Craven v. Winter Cravens v. Kitts V. Rossiter V. White Crawford v. Bertholf V. Cato I". Crawford V. Scovell V. Spencer V. Whitmore V. Witherbee Crawfordsville v. Boots Creagh v. Blood Credle v. Hays Creed c. People 1509, 1511, 1575, 1578, 1220, 1248 1980 1289 518 1217, 1218, 1228, 1247 89 944 54, 65, 67, 70 227, 1392 40, 44 786 1651 48, 49, 50 381, 414 1889 Crenshaw v. Slate River Co. 484 V. Ullman 176 Cresinger v. Welch 20, 21, 24, 25, 26, 31, 120 Cressinger v. Desseburg 1314 Cresson v. Miller 120 v. Stout 1713 Cressona r. Sowers 1198 Cressona Sav. &c. Asso. v. Sowers 1197, 1214 Crest V. Jack 1899, 1904 Creswell v. Welchman 101 Crews t'. Pendleton 1619, 1628 V. Taylor 1451, 1480 Cribben v. Deal 1331 Cribbs v. Sowle 82 Crine v. Tifts 1627 Crippen r. Morrison 1668, 1754 Crips r. Towsley 99 Crisbine v. St.' Paul & S. C. R. Co. 459 Criscoe v. Hambrick 1958, 1963 Crisfield v. Storr 936, 968, 971, 985 Critchfield v. Critcbfield 1224, 1286, 1289 Critchlow V. Beatty 364 Crittenton v. Alger 488 Croan i: Joyce 1800 Crocker v. Belangee 290 V. Lewis 1560 V. Lowenthal 1240, 1241 )". Tiffany 1979 V. Whitney 174 Crockett r. Magnire 1488, 1502 Crofts ('. Middleton 257 Cromie v. Louisville Orphans' Soc. 1 79 Cromwell v. Selden 540 r. Tate 1005, 1071, 1114 li TARLE OF CASES. Pefereiioes are to Sections. Cronin r. Gore 340, 366 Crook r. Vandevoort 1862, 1936 Crooked Lake Nav. Co. v. Keuka Nav. Co. 122 Crooker v. Brai^g -186 V. Jewell 932, 936, 931) Crooks r. Crooks 40, 44, 45, 1234, 1307, 1309 r. Kennett 1807 Cropp V. Cropp 58 Crosby r. Bra.lbury 329, 413 V. Loop 1930 V. Montgomery 525, 529 V. Parker 388 V. Vleet 1469 V. Wadsworth 1618 Cross V. Carson 708, 723, 724 V. DeValle 167 r. Fombey 1403 V. Frost 706 V. Marston 1706, 1737 V. Robinson 1919 V. State Bank 1328 Crossman v. Hilltown Turnpike Cg. 1082, 1084 Crotty V. Collins 1625 Crouse v. Hoi man 54, 58 r. Murphy 1403 Crow V. Mark 1884, 1918 Crowder r. Searcy 1217, 1218, 1234, 1240, 1241, 1276 Crowe V. Peters 99 Crowell V. Gleason 79 V. Maughs 354, 358 Crowley v. Wallace 1164 Crowne v. Baylis 86 Crowther v. Rowlandson 48 Croxall V. Sherard 198 Croydon IIos])ital v. Farley 235 Cruger r. McLaury 718, 1936 Crum r. Cot ting 934 Crumbaugli r. Kugler 1127, 1129 Cnimlif^h r. Railroad Co. 1517 Cubitt V. Porter 1922 Cucullu V. Hernandez 1372 Cuffee r. Milk 613 Culbertson v. Duncan 364 V. Witbeck Co. 1096, 1158 Culin's Appeal 674 Cullen V. Sprigg 404, 632 Caller w. Motzer 1878,1879 Cullers V. Piatt 410,411 Cullum V. Branch Bank 828 Cullwick);. Swindell 1765 Culmore v. Genove 1289, 1294 Culpepper, &c. Soc. v. Digges 239 Culver ('. Ithodcs 1862, 1866 ' Cumberland Bank v. Hall 1367 Cuniming v. Cunnuing 526, 1230 Cummings c. Black 410, 411, 420 V. Boyd 285 V. Dearborn 896, 1396 V. Glass 1248 V. Harrison 924, 936 V. Henry 74, 78 V. Holt 869 V. Powell 2, 4, 10 V. Wyman 1866, 1877 Cummins v. Cassily 1328 V. Kennedy 922, 924, 933 V. Woodruff 1063, 1071 Cunninggim v. Peterson 1453, 1455 Cunningham v. Boston & A. R. Co. 424 V. Brown 1511, 1563 r. Cure ton 1712,1731 1748 V. Curtis 381, 388, 397 V. Dillard 838 V. Knight 939 V. Pattee 1566, 1570 V. Roberson 372 V. Thornton 335, 339, 1506 V. Webb 422, 1651 Curdy v. Stafford 337, 406 Curran i». Smith 1720,1729 Currie v. Kerr 1170, 1182, 1194 Currier v. Howes 449 V. Nelson 397 Curtin V. Patton 16 Curtis V. Aaronson 339, 376, 381, 442 V. Board of Education 632, 637 V. Brownell 58 V. Cockrell 1965 V. Deering 893, 915, 968, 975 V. Gardner 548, 575 V. Leasia 1678,1709 V. Leavitt 144, 1064 U.Lyman 1469,1479 u. Mundy 1510,1511, 1513, 1514 V. Norton 1652 y. Poland 1981,1997 V. Root 1409, 1411, 1412, 1413, 1414 V. Topeka 632, 650, 653 Curtiss V. Ayrault 1654 V. Colby 1127 Curyea v. Berry 1485 Cushing V. Hurd 1519 V. Rice 948 Cushman v. Blanchard 843, 969 TABLE OF CASES. References are to Sections. Cushman v. Church 650, 687, 723 V. Wooster 1014 Cussack V. Tweedy 1217, 1221, 1286, .1292 Cuthbert y. Ives 1963 Cutler V. Callison 354, 358, 359 V. Currier 1884 V. James 1394, 1524 W.Pope 1618 V. Rose 1350 V. Steele 1381, 1403 V. Tufts 503, 516, 518 Cutter I'. Whittemore 1008 Cuttsr.King 1919 V. United States 1062, 1338, 1356 V. York Manuf. Co. 1248 Dadmun i\ Lamson 134 Daggett V. Daggett 1307, 1^14 V. Reas 848 , 943 0. Shaw 375 V. Willey 381 Daggs V. Ewell 1573 Dail V. Moore 1109, 1116 Dailey v. Kastell 1547 Daily v. Litchfield 340 Daisz, Appeal of 1248 Dakin v. Williams 707 Dale V. Jackson 364 V. Lincoln 40, 44, 1276, 1278, 1296 V. Shively 928, 974 V. Travellers' Ins. Co. 383 V. Wright 1073, 1076, 1174 Daley v. Koons 602 Dalton V. Bowker 924, 968, 983 V. Rust 398 Daly V. Bernstein 593 Dame v. Dame 1698 Damery v. Fenjuson 512 Damon v. Granby 1050, 1079 Damziger v. Boyd 384 Dana v. Conant 531 V. Coombs 29, 158 V. Goodfellow 957 (,'. Middlesex Bank 410 V. Newhall 1346, 1529 V. AVentworth 743, 773, 774 Danbury r. Robinson 1531 Danby v. Coutts 249 Danforlh v. Paxton 1314, 1326 Daniel v. Hester 1563, 1565 V. Hill 526 V. Hodges 1560 V. Sorrells 1380 V. Veal 516 Daniels v. Bailey 1600 V. Cheshire R. Co. 488 V. Daniels 1925, 1926 V. Davison 1563, 1564, 1566 V. Hart 145 V. Lovvery 1190, 1192 V. Pond 1708 Danville Seminary v. Mott 279, 1079, 1080 Danziger v. Boyd 125, 326, 400 Darby v. Hayford 48, 49 Darden v. Burns 617, 618 Dargin v. Becker 1437, 1555 Dark v. Johnston 1597 Darling v. Crowell 520, 531 V. Harmon 1904 Darlington's Appeal 104 Darlington's Appropriation 1949 Darrah v. Bryant 389 Darraugh v. Blackford 14 Darst V. Bates 1238, 1589 V. Enlow 364 V. Gale 151, 1125, 1444 Dart V. Barbour 405 Daubenspeck v. Piatt 1575, 1578 Dausch V. Crane 87 Davar v. Cardwell 1166 Davenport v. Davenport 930, 987 V. Mason 297 V. Parsons 1021, 1040 i;, Prewett 1282 V. Shants 1674, 1736, 1741, 1743, 1748, 1754, 1755 V. Sleight 1021, 1329 Davey v. Ruff ell 1463 V. Turner 36 David V. David 1994 V. Williamsburgh Ins. Co. 218, 229 Davidson v. Arledge 331, 414, 424, 432 V. Bridgeport 1052 V. Cooper 1328, 1338, 1346 V. Cox 928 V. Jones 295 V. Killen 382, 389 V. Thompson 1884, 1892 i>. Wallingford 1937 V. Young 6, 15, 16, 25 Davies v. Sear 534 V. Semmes 1010 V. Skinner 1894, 1895 Davis V. Agnew 1195, 1976 »;. Alvord 1431, 1433 V. Bartholomew 319 V. Baylor 381 V. Beazley 1125 liii TABLE OF CASES. Refereiioes are to Sections. Davis V. Bilsland 1430 u. Bonle 1159, 1180, 1194 V. Bnuulon KJtJS V. Burton 10G7 V. Calvert 97 V. Cass 1847 V. Cliaj)man 1888 V. Clark 899, 1801, 1812, 1814 V. Cross 1217, 1271, 1289, 1290, 1325 V. Culver 49 V. Davis 314, 1297, 1301, 1792 V. Dean 99 V. Dudley 2, 24, 25 I'. Easley 1692 V. Ellis 1267, 1269 V. Fox 92 V. Fuller 375 V. Garrett 1276, 1282, 1289, 1292, 1297 i: Givens 1862 v. Gray 674, 708 r. Hall 1072 r. Hayden 603 V. Henderson 829 V. Hess 400 V. Higgins 11'* I V. Hone 813 V. Hopkins 1568 V. Howell 374 V. Hutton 1887 V. Inscoe 1259, 1340 V. Jenney 1363 V. Jewett 1492 V. Judge 449, 450 V. Kennedy 1196, 1198, 1204 V. King 1846 V. Kneale 1314 V. Lane 1039 V. Lang 1969 r. Luster 84, 86, 88 V. Lutkiewiez 1380, 1393 r. Lyman 928,937,9/32,967, 974 V. McFarlane 1620 V. Mitchell 364 V. Mugan 1718 V. Nolan 1524 r. Old Colony R. Co. 175 V. Ownsby " 1404, 1408 V. Pearson 1034 V. Rainsford 359, 381, 382, 383, 384, 386, 400, 424 V. Roosvelt 1149, 1150, 1151 V. Seinmes 1094 V. Smith 364, 968 v. Strange 110 liv Davis V. Strathmore 1499 V. Townsend 354 V. Treharne 538 V. Whitaker 1451, 1455, 1479 r. Williams 1217, 1220, 1234, 1237, 1286, 1287 V. Windsor Sav. Bank 1037 Davis Sewing-Machine Co. v. Bar- nard 68 Dawes, Ex parte 249 Dawes v. Tredwell 249, 262 Dawley v. Brown 122, 124, 125 Daws V. Craig 1584 Dawson v. Danbury Bank 1575, 157 7 V. Hall 1248, 1303 V. Helms 21, 31, 33 V. Lawrence 1953, 1976 V. Mills 905, 1936 r. Shirley 1028, 1183 Day V. Adams 1086 V. Chism 927 V. Clark 1502, 1505, 1529 V. Griffith 1289 V. Howard 1862, 1879, 1919 V. Lacasse 1303, 1304 U.Perkins 1717,1765,1767 V. Philbrook 542 V. Railroad Co. 1569 V. Schroeder 468 V. Seely 48 Dayton v. Newman 1218 V. Vandoozer 1626 Deakins v. Hollis 834 Deal V. Cooper 330 V. Palmer 1501 Dean v. Anderson 1527 V. De Lezardi 1491 V. Long 1547 V. Lowell 448, 455 t;. Metropolitan Ry. Co. 40, 41 44, 45 V. Ne. Mercer 785 Delong V. Delong 646 Demarest v. Willard 937 V. Wynkoop 1529, 1531 De ILittos V. Gibson 780 Dcmby V. Parse 1666 Dement V. Williams 355, 1942 Demesmey v. Gravelin 1321 Deming v. Bullett 1041, 1066 V. Carrington 376 V. Miles 1451, 1472, 1485 V. Williams 44, 46 Dempsey v. Tylee 40, 1112 Den V. Ashbee 1185 V. Farlee 1365 V. Ferebee 1190 V. Geiger 1162, 1182 V. Graham 384 V. Hanks 266 V. Hardenbergh 1792, 1802, 1803 V. Hay 237, 239 V. Hobson 616 V. Lewis 1182 V. Richman 1408 V. Roberts 1463 V. Smith 613 V. Taylor 616 V. Underwood 293 V. Van Riper 1784 V. Vreelandt 1082 V. Wade 1372 V. Watkins 1463 V. Wright 1348, 1367 Dengenhart v. Cracraft 1182, 1213 Denham v. Sankey 1699 V. Walker 681 Denis v. Velati 1223, 1224 Dennett v. Dennett 48, 49, 50, 99, 155, 613 V. Hopkinson 1619 Dennis v. Burritt 1482 V. Tarpenny 1159, 1185, 1190 V. Wilson 505, 551 Dennison v. Taylor 517 Denny v. Ashley 1145 Denson v. Love 974 Dent V. Bennett 99, 103, 104 V. Long 117, 118, 1206 Denton v. Donner 162 V. Perry 1289 V. White 1575 Dentzel v. Waldie 38, 316, 1022, 1027 Denver v. Pearce 484, 488, 489 Denver, &c. Ry. Co. v. Lockwood 324 V. School Dis- trict 630, 708 Department of Parks, Matter of 124, 131 Depas V. Mayo 1801 Iv TABLE OF CASES. Refereuces are to Sections. De Peyster v. Mali 462, 4C3, 469 V.Michael 617,660,661, 664, 669, 712 r. Murphy 871 De Prez V. Everett 10u9 Deputy V. Stapleford 91, 1335 De Puy t'. Strong 1925 Derby i;. Tlirall 1342 De Rochemont v. Boston & M. R. Co. 879 Derrick v. Brown 1396 Derry Bank v. Webster 1289, 1296 De Ruyter v. Ti-ustees 1566 De Segond y. Culver 1120 Desilver, Iti re 67 Des Moines v. Hall 452 Des Moines Nat. Bank v. Harding 1352, 1365 Despatch Line Co. v. Bellamy Manuf. Co. 1035, 1049, 1051, 1668 Desverges v. Willis 885 Detroit v. Mut. Cras Light Co. 144 Detroit & B. C. R. Co. v. Busch 1748 De Yanghn v. McLeroy 1102, 1936 Devausney, In re 52 De Vendal v. Malone * 1463 De Vendell v. Doe 1407 De Veney v. Gallagher 466 Devereux v. McMahon 1000, 1002, 1010, 1013, 1014, 1094, 1218, 1475 Devin v. Himer 1331, 1337 Devine v. Lewis 948, 968 V. Rawle 872 Devinney v. Reynolds 1021, 1043 Devonshire v. Pattinson 484 Devore r. Kemp 1627 V. Sunderland 843, 929, 931 De Vries v. Conklia 41 Devries v. Hiss 1886 V. Phillips 291 Devyr v. Schat^-fer 131 Dewey v. Allgire 67, 71 V. Brown 905, 1936 V. Burbank 158 V. Campau 1139, 1163, 1185, 1186, 1196 V. IngersoU 1490 V. Lambier 1938 V. Sugg 1403 V. Walton 1404 V. Williams 723 Dewitt V. Ackcrman 1963 De Witt l: :Mattison 48 r. Moulton 1435 Ivi De Witt V. San Francisco 1772 D'Wolf V. Haydn 992 Dexter v. Beard 785, 793, 938 V. Hall 1023, 1024 V. Harris 1502, 1506 V. Lothrop 1820 u. Manley ' 9 IS V. Nelson 119 V. Riverside, &c. Mills Co. 448, 454, 462, 463 Dey?). Dunham 1462,1517 De Zeng i;. Beekman 1056, 1057 Dias tJ. Glover 1792 Dibble v. Rogers 364 Dibrell v. Carlisle 1 55 Dicku. Balch 1112, 1484 V. Pitchford 660 Dicken v. Johnson 48 Dickens v. Barnes 337, 344 Dickenson v. Grand June. Canal Co. 823 Dickei'son v. Bowers 1407, 1453 V. Col grove 1394 V. Davis 1159, 1165, 1173 U.Talbot 1133 V. Tillinghast 285, 1386, 1387, 1390 Dickey v. Henarie 1406 V. Lyon 1566 V. M'Cullough 682, 707 V. Weston 928 Dickie v. Carter 98 Dickinson v. Burrell 290 V. Glenney 1212 V. Grand June. Canal 823 V. Hoomes 793, 828, 858, 903, 907, 939, 942 r. Williams 1830,1917 Dickson v. Bamberger 1358 V. Desire 929, 931, 968, 971, 974 V. Kempiusky 48 V. Wilson 391 Diedrich v. Nortliwost Ry. Co, 500 Diefendorf v. Diefendorf 44, 4.5, 303, 1230, 1232, 1234, 1240, 1272, 1282 Diehlv. Emig 1286,1288 V. Fowler 1240 V. Zanger 364 Diener v. Diener 227 Dietz V. Mission Transfer Co. 538 Diez, In re 1232 Digby V. Jones 1528 Digman v. McCollum 1374, 1488, 1547 Dikeman v. Arnold 828, 1196, 1221 v. Parrish 1866, 1868, ls,so TABLE OF CASES. References are to Sections. Dikeman v. Puckbafer Dikes V. Miller Dill V. Board V. Bo wen 1479 1217 449 7, 31, 33 Dillahunty v. Little Rock & Ft. S. Ry. Co. 913, 915, 919, 926, 974, 978 Dillaway v. Butler 1539 DiUaye v. Commercial Bank 1508 Diller v. Johnson 79 Dillinger v. Kelley 1836 Dillingham v. Roberts 479 V. Smith 499 Dimmick v. Dimmick 1274 V. Lockwood 957, 967, 970 Dimon v. Dunn 1483 Dimpfel i'. Ohio & M. Ry. Co. 148 Dingey v. Paxton 402 Dingley v. Bon 1499, 1547 Dinwiddie i-. Smith 1272, 1958 Dishmore v. Jones 1515 Dishon v. Smith 658 Disney v. Coal Creek Min. Co. 381, 433 Disque v. Wright 1435, 1469 Distilled S])irits 1534, 1535 Ditman v. Clybourn 519 Diver v. Diver 1800, 1*502 Dixon V. Caldwell 1508 V. Dixon 87 V. Hill 1527, 1528 V. Hunter 1420 V. Merritt 2, 7, 21, 22 Doane v. Broad Street Asso. 1649 V. Willcut 4 76 Dobbin v. Cordiner 1087, 1109, 1336 Dobbins v. Brown 909, 912 Dobschnetz v. Holliday 1682, 1720 Dobson V. Hohenadel 448, 449 Docking v. Frazell 1668, 1679, 1699, 1732, 1736 Docktermann v. Elder 1947 Doctor V. Darling 875, 882, 958, 970 V. Furch 399 Dodd V. Bartholomew 214 V. Ben thai 9 V. Birchall 1663 V. Parker 1372, 1501 V. Seymour 828 V. Williams 1488, 1502 V. Witt 338, 381, 448, 465 Dodge V. Boston & P. Co. 553, 693 V. Davis 1575, 1892, 1913 r. Hollin-shead 1196 V. Kinzy 1807, 1812 V. Penn. R. R. Co. 448, 449 Dodge V. Potter 1452, 1455, 1479 V. Williams 170 Dodson w. Hays 1891 Doe r. Abernatby 27 V. Beeson 1220, 1307 V. Bingham 1346 V. Botts 1930 V. Burt 1593 V. Butcher 675 V. Carew 677 V. Catomore 1359 V. Collins 1647 V. Davies 1094 V. East India Co. 485 V. Errington 256, 259, 1935 V. Giillini 583 V. Galloway 415 V. Hearick 1879 V. Henderson 253 V. Hildreth 431 V. Hirst 1349 V. Holtom 325 V. Howell 256 V. Howland 1182, 1792, 1803 V. Hurd 266, 267 V. Jackman 601, 602, 609 V. Knight 1240, 1267, 1280, 1309 V. Lock 505 V. Manning 293 V. Phelps 252 V. Porter 256, 410 V. Pretty man 1110 V. Prosser 1862, 1872 V. Reed 1178 V. Roe 121 V. Routledge 277, 293, 1387 V. Rugeley 674, 675 V. Rusham ^ 293 V. Salkeld ' 207 V. Stone 257 V. Sumraersett 1776 V. Tranmer 313 V. Vallejo 384 V. Webster 345 Doebler's Appeal 602, 604, 660 Dogan V. Seekright 381 Doherty v. Dola'n 969 V. Stimmell 1531 Dohoney i'. Womack 334, 403, 404, 1822 Dolan V. Baltimore ' 712, 723, 743 Dolde V. Vorlicka 331, 424, 432 Dole V. Bodnian 1296 r. Thurlow 1085, 1109 Dolliff V. Boston & M. R. Co. 534, 1664 Ivii TABLE OF CASES. References are to Sections. Dollins i Dolliver Pollock . Dolliver I'. El a Dolman v. Cook Dolph V. Barney c. Hand Dominick v. Micliael Donahoe v. Emery 310 !)7 1G94, l«!)o 81 1937 24, 25, 27 20 831, 858, 9G9, 975, 989 Donahue v. Case 334, 338 r. Hubbard 1803, 1805 V. Mills 1198, 1205, 1501 Donald v. Beals 1455, 14G8, 14(!9, 1532 V. Nesbitt Donegan v. Donegan Donelson v. Posey Donnell v. Humphreys V. Mateer V. Thompson 861. Donuels v. Edwards Donner c. Palmer Donnor v. Quarterraas Donohue v. Whitney Donovan r. "Ward Dooley v. Baynes V. Wolcott Doolittle V. Bailey V. Cook V. McCullough V. Tice Doorley v. McConnell Doran v. Butler V. McConlo2;ue Doremus r. Doremus Doren v. Gillum Dorn /•. Beasley V. Best Dorr V. Clapp V. Diidderar V. Harrahan V. School District Dorsey v. Jackman Doswell V. Buchanan Dott V. Cunnington Doty V. Cox Dongal V. Fryer Doiigall i: Foster Dougherty v. Chesnutt V. Duvall Doughty V. Owen Douglas V. Bishop V. Branch Bank Iviii 1230 1793, 1801 74 1G43 61G, 1955 919, 928, 952 1824 1229 1846, 1955, 1957, 1981 378 24 1799 1510, 15G3 3G4, 438 285, 1390, 1482, 1489, 1490, 1571 81, 95 369 743 1127 49, 55, 97, 107, 271 19G9 563, 567 1935 1092, 1159 594 1745 765 321, 338, 400 833 1416, 14.S7 40G 10 667, 700 1912 1672. 34G 972 1717 1133 239 Douglas V. Dangerfield 1846 r. Do Laittre 1031 V. Fulda 1027 V. Lock 503 V. Shumway 1601, 1605, 1609 v. Union Mat. L. Ins. Co. 731 V. West 1220, 1258, 1259, 1272,1277 Douglass r. Cline 1729 V. Lewis 838, 839, 840, 841 V. McCrackin 1559 V. Peele 1484, 1494, 1496 V. Scott 1487 V. Thomas 653 Douthit V. Hipp 898 V. Robinson 340 Douthitt V. Stinson 223, 236, 237, 241, 242 Dow V. Gould, &c. Silver M. Co. 1022, 1027, 1028 V. Jewell 1365, 1940 V. Lewis 830, 834 V. Mining Co. 42 V. Whitney 413, 1394, 1400, 1401 Dowdney v. Mayor 871 Dowling" y. Salliotte 1789,1792, 1794, 1797, 1801 Down V. Down 329 Downard v. Groff 1628 Downer v. Smith 944, 1846 Downes v. Grazebrook 162 Downie v. Ladd 960 Downing v. Blair 1196, 1204, 1206, 1207 V. Marshall 171 Downs V. Porter 1092 v. Yonge 1087 Doyle V. Dixon 744 V. Mellen 398 V. Peerless 1487 V. San Diego Land Co. 176 V. Stevens 1482, 1563 V. Teas 1374, 1617, 1522 V. Wade 1407, 1529 Dozier v. Barnett 1383 Drake's Appeal 98 Drake v. Crowell 1560 V. Curtis 476 V. Ramsay 2, 3, 24, 25, 26 V. Regtrel 1460 V. AVells 1606, 1609 Draper r. Bryson 1200, 1404 r. Monroe 466, 46 7 Draude v. Rohrer Manuf. Co. 1438, 1482 TABLE OF CASES. References are to Sections. Dray v. Dray Dreisbach v. Serf ass Dresel v. Jordan Dresser v. Dresser V. Norwood Dreutzer v. Baker V. Lawrence V. Smith Drew V. Arnold V. Baldwin V. Drew Swift 1836 526, 568 1238 1887, 1895 1534 1061, 1087 1087 1081 1188 620, 722 329, 413 335, 381 V. Towle 131, 915, 968, 981 Drey v. Doyle 1514, 1563 Driggers v. Cassady 336 Driseoll v. Green 324, 326, 416 Drown c. Smith 525 Drury v. Foster 1212, 1331, 1332, 1333, 1447 V. Midland R. Co. 252 V. Shumway 969 V. Tremont Imp. Co. 295, 303 Dryden v. Kellogg 968 V. Newman 1872 Drye v. Cook 1123, 1124 Drysdale v. Mace 1554 Dubber v. Trollop 577 Dubei;. Smith 1935 Dublin, &c. Ry. Co. v. Black 27 Dubois u. Beaver 1614,1922 V. Campau 1836, 1846, 1866, 1872 V. Glaub 1928 V. Kelly 1603 Dubose V. Young 1455, 1472 Duchess of Chandois, In re 52 Dudley v. Collier 187 V. Elkins 355, 358, 359, 364 V. FoUiott «93 D. Hurst 1672,1717,1721 Duer V. James 1240, 1267 Duester v. McCamus 1490 Duff V. Moore 389, 392, 447 V. "Wilson 1836 Duffus V. Bangs 1684 Duffy V. Masterson 365 Dufour V. Cainfranc 254 Dufphey v. Frenaye 1441, 1442 Du'i^an V. Thomas '16 DuStrer V. Oglesby 908, 927 Duke V. Markham 1079, 1133 Dukes V. Jones 1466 V. Spangler 12-J9 Dulany V. Tilghman 1215 Dull V. Blum 334, 403 Duly V. Brooks 1129 Dumoncel v. Dumoncel 163 Dumpor's Case 707 Dun V. Dietrich 835, 841 Dunbar v. Stickler 625 Duncan v. Blair 861 V. Central Passenger Ry. Co. 782, 802 V. Duncan 1146, 1940 V. Forrer 1773, 1775 V. Harder 1949 V. Hodges 1328, 1331, 1337 V. Johnson 1527 V. INIadara 326, 350 V. Miller 1404, 1436 V. Pope 1303, 1304 V. Sylvester 1940, 1952 V. Williams 1862 Duncombe v. Richards 103 Dundas I'. Hitchcock 1190 Dundy v. Chambers 1085, 1101, 1103, 1120 Dungan v. Am. Life Ins. & Trust Co. 1463 V. Van Puhl 190G Dunham v. Cincinnati, Peru, &c. Ry. Co. 1729 V. Dey 1547 V. Gannett 394 V. Griswold 82, 87 V. Kirkpatrick 538 V. Loverock 1827 V. New Britain 6 75 V. WiUiams 448, 458 V. Wright 37 Dunklee v. Wilton R. Co. 494, 1642, 1652 Dunlap V. Daugherty 1130, 1133, 1155 V. Green 226, 244, 245, 287 I!. Hawkins 289 r. Mobley 641,645 r. Stetson 479, 488, 490 Dunlieth & D. Bridge Co. v. Du- buque '^-6 Dunman r. Gulf, &c. Ry. Co. 1673 Dunn V. Adams , 1146 V. Chambers 275 V. Davis 579, 617 V. Dunn 104 V. Enfi^lish 338 r. Games 219, 1007 V. Sanford 530, 542 Dunnage '•. White 76 Dunning r. Ocean Nat. Bank 1809 Dunstan c Northern Pac. I'v. Co. 508, 531, 556 Dunton v. Brown 11, 13 lix TABLE OF CASES. References are to Sections. Dunwell r. WuU-vW 1402 Dupee r. Boston Water-Power Co. 141 •Dupont c. Starring 364, 366 c. Wertlieinan 589 Dupree v. Dupree 580 Duraind's Appeal 1233, 1236, 1269, 1271 Durant /•. Crowell 1516 r. Muller 602, 614 i: Ritchie 36, 43 Durfee *'. Garvey 1208 Durham & S. Ry. Co. v. Walker 510 Durkee i: Nat. Bank 1393 Durnherr i: Ran 865, 942 Durrett c. Piper 867 Durst t\ Daugherty 1162, 1174, 1192, 1547 Duryea i: Mayor 531, 543, 735 Dnrvee r. New York 632, 708 Dusenbury v. Hulbert 1413, 1448, 1497 Dussaume v. Burnett 1109, 1125, 1126 Dustin I'. Newcomer 968 Dutch V. Boyd 321 Dutch West India Co. v. Van Moses 235 Dutro V. Kennedy 1748, 1759 Dutton V. Ives 1429 c. M'Reynolds 1404, 1406, 1572 V. Tilden 303 V. Warschauer 1566, 1568 Duval V. Bibb 303 i: Covenhoven 1442 Duval! i: Craig 858, 860, 919 Dwenger r. Bi'anigan 1414 Dwight i: Cutler 828 V. Tyler 372 Dwinel r. Veazie 830 Dwinell r. Bliss 1217, 1220, 1248, 1254, 1294 Dwyer v. Rich 493 V. Rippetoe 1559, 1844, 1852 Dwyre v. Speer 338, 404 Dyckman v. Mayor 1860 i.\ Valiente 1900 Dycus V. Hart 1396 Dyer i\ Bean 44 V. Clark 1542 V. Duffy 1029, 1030 V. Eldridge 372, 1803, 1807 V. Sanford 510, 551, 560, 634 V. Wightman 912 V. Wilbur 1884, 1917 Dygert i'. Matthews 523 Ix Dygert i'. Remerschnider 280, 283, 284, 289 Dyne r. Nutlcv 415 Dyson v. Brad'shaw 1314, 1319 v. Simmons 1468, 1478 Eadie v. Slinimon 85, 86, 88 Eads V. Retherford 1853 Eagle Fire Co. v. Lent 21 Eagle Woollen Mills Co. v. Mon- teith 1080 Eakle v. Reynolds 113 Eames v. McGregor 213 Earle v. Dawes 619, 621, 622, 635 V. De Witt 833 V. Earle 1028, 1224 V. Fiske 1383, 1385, 1463 V. Middleton 944, 968 V. Wood 1824 Early v. Burtis 1767 V. Friend 1891, 1892, 1906 Earnhart v. Earnhart 602 East V. Pugh 1216, 1529 East Boston, &c. R. Co. v. Eastern, &c. R. Co. 145 East Hampton v. Kirk 472, 479 East Haven v. Hemingway 472,476 East Line, &c. R. Co. v. Garrett 299, 625 East Norway Lake Cluircli v. Froislie 176 East Tennessee, &c. Rv. Co. v. Davis 1161, 1177, 1178 East Texas F. Ins. Co. v. Clarke 1303, 1305 Easter v. Little Miami R. Co. 785, 793 Easterbrooks v. Tillinghast 628 Eastern Carolina Land Co. v. Frey 521 Eastham v. Powell 1276 Eastman v. Batchelder 274 y. Foster 1696,1699,1748 V. Knight 326 V. Wright 989 Easton v. DriscoU 1303 Eastwood V. Lever 773 Eaton V. Campbell 1112, 1113 V. Chesebrough 882 V. Eaton 50, 54, 59, 61, 68 V. George 39 V. Knowles 969 V. Lyman 924,929, 931,952, 962, 967, 971 V. Perry 78 V. Rice 358 TABLE OF CASES. References are to Sections. Eaton V. Tallmadge 962, 974, 1942, 1952 V. Trowbridge 1168, 12^8, 1239, 1396, 1401 Eaves v. Estes 1668, 1719, 1737, 1748, 1753 Ebersole v. Rankin 1394 Eberstein v. Willets 91, 93, 94, 95 Ebert v. Wood 1942, 1949 Eberts v. Fisher 1955 Echols V. Cheney 1040, 1042 V. Sparks 1936 Eck V. Hatcher 1516 Eckert v. Elowry 97 Eckhart v. Irons 734, 741 Eckman v. Eckman 208, 313, 526, 1240, 1267, 1309 Eddie V. Tinnin 358 Eddy V. Herrin 80, 85, 86 V. Hinnant 694 V. St. ISlars 498 Edgerton v. Jones 1185, 1196 Edinburoh Am. Land Mortg. Co. V. Peoples 1134, 1206 Edington v. Nix 962, 907 Edmondson v. Harris 1190 Echininds' Appeal 873, 1837 Edmunds r. Leavell 1447 Edsall V. Merrill 1885, 1887, 1892 Edson V. Knox 388, 442, 1109 Edward's Appeal 579 Edwards v. Barwise 1455, 1482, 1544 V. Beall 563, 568 V. Bishop 1919 V. Bowden 84, 87, 94, 97, 330, 337, 343, 349 V. Champion 1775 V. Clark 883, 959 V. Dickinson 1258, 1259 V. Handley 89 V. Hillier 1487, 1532 V. McKcrnan 285, 1390, 1416, 1417 V. Header 1402 V. Ogle 484, 491 V. Parkhurst 140 V. Perkins 1626 V. Ptoys 140 V. Thorn 1091, 1191 V. Thompson 1563, 1564, 1627 V. Trumbull 1406 Edwardsville R. Co. v. Sawyer 575 Effinger v. Hall 1517, 1522, 1563 Eire V. Kille 1668 Egerton v. Carr Egery v. Woodard Eggleston v. Pollock 1234 1238 1314 V. Watson 1436 Egremont Burial Board v. Egre- mont Iron Co. 1595 Ehlev. Brown 1406, 1408, 1563, 1567 Eichlor v. Holroyd 1320 Eiden v. Eiden 364 Einstein v. Shouse 1162, 1169, 1179 Eiseman v. Gallagher 1517, 1522 Ekin V. McCracken 50, 56 Ela V. Card 329, 413, 944 Elbert v. McClelland 1350 Elcessor v. Elcessor 48, 55 Elder v. Burrus 481 r. Derby 996 V. McClaskey 1863, 1807, 1868, 1880, 1881 V. Schumacher 54, 68, 69 V. True 969, 9 76 Eldridge v. Post 1529 V. Smith 178 V. Trustees 80 Elias V. Verducro 1942 Eliot V. Thatcher 326, 420 Elkhart Car Works Co. v. Ellis 6 7 7, 708, 716, 722 Ellett V. Richardson 1185 Ellicott V. Pearl 375, 376 Ellingboe v. Brakken 1111 Ellinwood v. Stancliff 442 Elliot V. Davis 218 V. Ince 54, 68, 69 V. Lane 1570 V Sleeper 38, 316, 318, 1003 V. Small 457, 503, 530, 531 Elliott V. Frakes 1862 V. Gibson 427 V. Gilchrist 352 V. Harris 1481 V. Horn 2 V. Nichols 1793, 1800 I'. Peirsol 36,37,1187,1207, 1208, 1212, 1476 V. Sauflcy 922, 924, 927 V. Small 542 V. Teah 37, 1028 V. Thompson 968 V. Wright 1668 Ellis /•. Alford 158 t: Allen 310 r. Elkhart Car Co. 730 r. Ellis 113, 117 r. Horrman 1517 V. Kyger 718 Ixi TABLE OF CASES. References are to Sections. Ellis r. Mo. Pac. Ry. Co. 1267 r. Stewart 11)66 V. AVait 1331, 1334 r. Young 1068 Ellison r. Briiiham 1605 r. .Salem Coal & U. Co. 1680, 1753, 1754 Ellsworth r. Central R. Co. 1238 r. Lord 448 Elmendorff r. Carmichael 16G, 167 Elmore r. Marks 1217, 1220, 1289, 1301 Elrod r. Keller 1898, 1981, 1997 Elsay V. Metcalf 1292 Elsberry i'. Boykin 1218, 12X2, 1291 Elsey V. Metcalf 1238, 1296 Elston v. Jasper 52, 53, 54 V. Piggott 185, 186, 1836 El well r. Bm-nside 1911, 1987 i: Grand St. & N. R. Co. 1054 r. Shaw 1040, 1042 Elwes r. Briggs Gas Co. 1691 r. Maw 1666 Elwood f. Klock 1109, 1185, 1196, 1204, 1208 Ely r. Ely 1367 V. Scofield 1421, 1586 V. Stannard 1394 v. Wilcox 44, 1371, 1435, 1445, 1479, 1504, 1505, 1520, 1530, 1568 Elyton Land Co. v. South & N. Ala. R. Co. 623, 632, 635 Emeric v. Alvarado 331, 1506, 1846, 1974, 1976, 1978, 1979, 1995 Emerson v. Cutler 1819 V. Mooney 510, 548, 555 V. Proprietors 892 V. Sansome 1408, 1628 V. Simpson 632, 648,6 78, 679, 693 V. Taylor 476, 483 Emery v. Chase 268, 295, 313 *;. Fugina 1626 r. Three Rivers 1226 V. Wase 160 V. Webster 487 Emmal v. Webb 1123 Emmerson r. Hughes 601, 602, 613 Emmett v. Emmett 163, 166 Emmons v. Murray 10, 1563, 1576 Encking v. Simmons 99 Engel V. Ayer 503, 506, 549, 553, 555, 575 England r. Dearborn 1054 >: Hatch 1112 ]xii England r. Vandermark 381, 438 Englebert r. Troxell 2, 18, 27, 28, 31, 34 Engleman n. Craig 303, 948 English r. Brennan 462, 464 r. Helms 1071 V. Powell 1846, 1873, 1S79, 1.S80 r. Waples 1504, 1522, 1527 Ennor r. Thompson 1198, 1204 Enochs V. Miller 400, 402 Enos V. Cook 1423 Ensworth v. King 1285, 1288, 1291, 1449 Enterprise Transit Co. r. Sheedy 1208 Enyeart v. Kepler 42, 1792, 1801, 1803, 1805 Enys V. Donnithorne 989 Eoff r. Irvine 1394 Episcopal City Mission v. Apple- ton 623, 641, 642, 650, 741, 742 Epley I'. Epley 1958 V. Witherow 1521 Eppes V. Randolph 283 Eppright V. Nickerson 1117 Epps V. Flowers 7, 8, 9 Equitable Life Assur. Soc. v. Brennan 779, 782 Equitable Life Ins. Co. v. Slye 1430, 1432 Equitable Mortg. Co. v. Kemper 1148, 1440 V. Lowry 1575 Equitable Trust Co. v. Christ 1670, 1673, 1721 Erickson v. First Nat. Bank 1358 V. Mich. Land & Iron Co. 529, 533, 538, 1596 V. Rafferty 1437 Ernst V. Parsons 930 V. Reed 1240, 1302 Erskine v. Davis 219, 1007 r. Moulton 424,476,479, 488 V. Plummer 1605, 1606 V. Wilson 898 Erwin v. Hurd 650, 731 V. Lewis 1504 V. Olmsted 1922 V. Shuey 1499, 15U1 Eshleman v. Henrietta Vineyard Co. 1245 V. Malter 445, 446 Eslberry v. Boykin 1292 Eslow V. Mitchell 1108 Esmond v. Tarbox 432 TABLE OF CASES. References are to Sections. Espalla V. Touart 1996 Espin V. Pemberton 1538, 1539, 1544 Ef^py V. Anderson 828 V. Comer 1831 Essex V. Daniell 58 Estabrook v. Smith 858, 860, 861, 948, 974 Estep V. Estep 1892 Estes V. Odom 407, 1522 Estill V. Beers 233 Esty V. Baker 359, 418 V. Currier 351, 535, 422, 557 Ethel V. Batchelder 1989 Etheridge v. Doe 164, 165 Ettenheimer v. HefEernan 163 Eubank v. Poston 1390 Euliss V. McAdams 331, 340, 346, 351, 436 Eureka Co. v. Bailey Co. 1052 y. Edwards 16,17,24,31, 33, 35, 124 Eureka Lumber Co. v. Brown 1090 Eureka Mower Co., Iti re 1690 European Bank, In re 1539 Eury V. Merrill 1981 Eustache v. Rodaquest 163 Eustis V. Cowherd 987 Evans v. Bagshaw 1970 V. Brittain 1819 V. Commonwealth 1182 V. Duncan 861, 863 V. Foreman 1358 V. Gibbs 1310, 1311 V. Greene 326, 327 V. Horan 54 V. Hurt 375 V. Jones 1369 V. Lee 1082 V. McGlasson 1404 V. INlcLucas 892 V. Martin 1942 V. Nealis 1529 V. Pence 1392 V. Richardson 1086 V. Roberts 1602, 1618, 1619, 1620, 1627 V.Smith 1146 r. Summerlin 38,1164 V. Templeton 1391, 1485, 1866 V. Weeks 383 V. Wells 1040 Evelyn v. Templar 293 Evens v. Griscom 328 Everest v. Ferris 209, 1394 Everett v. Insurance Co. 324 V. Remington 755, 809 V. Whitney 1280 Everingham v. Braden 1621 Everitt v. Thomas 331 Eversole v. Early 891, 921 Everson v. Waseca 492 Everts v. Agnes 1256, 1314, 1315, 1320, 1527 V. Beach 18S7 Evetts V. Tendick 1906 Ewald i". Corbett 1182, 1919 Ewer V. Hobbs 1824, 1825, 1959 V. Lovell 1873 Ewing V. Burnet 1563, 1568, 1573 V. Colquhoun 480 V. Savary 1796 V. Shannahan 593 V. Shropshire 579, 602, 613 615 Exton V. Scott 1277 Exum V. Canty 1230 Eylar v. Eylar 1575 Fao'an v. Armstead 481 ° V. Cadmus 872, 958, 962 V. Stoner 384, 389 Fahey v. Marsh 340 Fahrney v. Holsinger 616 Fain v. Smith 1217, 1218, 1220, 1240, 1287 Fair v. Stevenot 1563, 1565, 1568, Fairbanks v. Insurance Co. 1303 V. Metcalf 1217, 1252, 1303, 1304, 1307 V. Snow 4, 90, 93 V. AVilliamson 991 Fairchild v. Chastelleux 1792, 1802, 1811 Fairclaim v. Shack elton 1872 Fairclolh v. Isler 828 Fairfax v. Hunter 166 Fairhaven v. Cowgill 1359 Fairis f. Walker 1718 Faivre v. Daley 564, 568 Falconer's Succession 14 72 Fall V. Glover 295 V. Roper 1178 Fallas V. Pierce 1479, 1504, 1505 Fallon V. Chidester 1836, 1846 V. Kehoe 218, 229 Falls V. Carpenter 127 V. Falls 111 V. Reis 448 Falls Land, &c. Co. v. Chisholm 331, 348 Falls Village Water-Power Co. v. Tibbetts 466 Faloon V. Simshauser 580 Fanninff v. Chadwick 1830 Ixiii TABLE OF CASES. References are to Sections. Fargason i-. Edrington 1389, 1390, 1393, 13!)4, 1399, 1529, 1572 Farges v. Kvhuul 256 Faris r. PhJlan 39 7 Farist Steel Co. v. Bridgeport 476 Farley v. Bryant 544 {'. Deslonde 341, 405 V. Weslande 335 Farlin v. Sook 1628 Farmer v. Batts 337, 339, 343, 344 V. Farmer 45 V. Ukiah Water Works 1660 Farmers' & Manufacturers' Bank V. Haight 10G4 Farmers' & Meclianics' Nat. Bank V. Gregory 1792 Farmers' & Mechanics' Turnpike Co. V. McCuUoch 1080, 1082, 1449, 1476 Farmers' & Merchants' Nat. Bank V. Wallace 1940, 1947, 1793 Farmers' & Millers' Bank v. De- troit, &c. R. Co. ISl Farmers' & Traders' Bank v. Ha- ney 1220, 1252 Farmers' Bank v. Corder 1802 V. Glenn 943, 956 Farmers' Loan & Trust Co. v. Cur- tis 181 Farmers' Loan & Trust Co. v. Hendrickson 1729 Farmers' Loan & Trust Co. v. McKinney 186 Farmers' Loan & Trust Co. v. Maltby 1487, 1488, 1506, 1527, 1563 Farmers' Loan & Trust Co. v. Minneapolis Engine Works 1712, 1714 Farmers' Loan & Trust Co. v. St. Joseph & Denver City Ry. Co. Farmers' Nat. Bank v Farnham v. Thompson Farnsworth v. Converse V. Jordain V. Minn 1729 Fletcher 1560, 15G2 632, 641, 650 138 1472 &c. R. Co. 146, 726 V. Perry 557 V. Rockland 394 V. Western Union Tel. Co. Farnum v. Brooks V. Buffum V. Peterson Ixiv 1724 48 1151 127, 140, 962, 986 Farnum v. Piatt 558 Farquharson v. Eichelberger 52(i, 563, 565, 593 Farr v. Trustees 1772 Farrall v. Hilditch 262 Farrand v. Beshoar 1392 c. Gleason 1898 Farrar v. Bridges 1247, 1286 V. Chauffette 1712 V. Christy 576, 613, 616 V. Cooper 334 V. Farrar 1259, 1262 V. Payne 1483 V. Stackpole Farrell, In re Farrell v. Enright V. Palestine Loan Asso Farrington v. Barr v. Tourtelott V. Woodward Farrior v. Security Co. Farwell v. Rogers V. Warren Fash V. Ravesies Fasholt V. Reed Fassett v. Smith Fau: Anderson 1079 Frankland y. Moulton 1717, 1719, 1735, 1745, 1747 Franklin v. Cannon 1451, 1472 V. Pv,obinson 1908 V. Talniadge 219 Franklin Co. C. & M. Co. v. Beckleheimer 2.31 Franklin Ins. Co. v. Cousens 16.57 Franklin Inst, for Sav. v. People's Sav. Bank 1788, 1789 Ixviii Franklin Sav. Bank v. Taylor 1485, 1560 Franz v. Orton 1566 Fraser v. Cliene 602 V. Davie 1222 V. Ott 448 V. Supervisors 954 V. Thompson 281 Fratt V. Whittier 1668, 1695, 1703 V. Woodward 342, 396, 39 7 Frazee v. Inslee 1584 Frazer v. Peoria 155 1-. Western 280, 291 Frazier v. Brown 1599 V. Crafts 1408 Frederick v. Devol 1751 V. Frederick 1947 V. Gray 1865, 1872 Free v. Stuart 1 768 Freed v. Brown 54, 56, 68 Freelore v. Cole 103 Freely v. Hoover 12G3 Freeman v. Auld 261, 1551 V. Barber 1792 V. Foster 855, 860 V. Lawton 1244 V. Love 1128 V. McLennan 1625 i\ Mahoney 392 V. Peay 1448 V. Person 1125, 1128 V. Preston 1195, 1984 V. Schroeder 1448, 1588, 1590 V. Wilson 92 Freemantle v. Bankes 45 Freiberg ?;. De Lamar 1207 V. Magale 1472 French v. Bankhead 471 V. Carhart 531, 540, 1652 V. Edwards 1937 V. Freeman 1708 V. French 74, 76, 200, 202, 268, 1085 V. Loyal Co. 1513, 1547, 1559, 1564 V. Mehan 1792, 1797, 1802, 1811, 1814 V. Old South Soc. 714 V. Shotwell 290 V. State 1359 V. Williams 544 Frenkel v. Hudson 1539 Frentz v. Klotsch 1840, 1846, 1921 Fresno Canal, &c. Co. v. Dunbar 792 V. Rowell 793, 799, 1374, 1521 TABLE OF CASES. References are to Sections. Frey v. Clifford 285, 346, 1386, 1392, 1394, 1395 V. Drabos 1637, 1638, 1731 Frick V. Sinon 1878, 1880 Friedenwald v. Mullan 38 Friedley v. Hamilton 1466 Friedman v. Hirsch 275 V. Nelson 423 Friend v. Friend 381 Fries v. Null 1464 Frink v. Bellis 931 V. Darst 836 V. Green 295 V. Pond 1104 V. Roe 1628 Frissell v. Rozier 40 Fritts V. Palmer 175, 190 Fritz V. Pusey 852, 868, 914, 915, 958, 959 Frizzell v. Reed 99 Frizzle v. Veach 138 Froggatt V. Wardell 233 Front Street, &c. R. Co. v. Butler 620, 622 Frontin v. Small 1040 Frost V. Angier 381, 466 V. Beavan 76 V. Beekman 1324, 1435, 1442, 1468, 1469, 1472, 1491 V. Butler 699, 705, 715, 722 V. Deering 1014 V. Erath Cattle Co. 1030 V. Missionary Society 992 r. Raymond 834 V. Spaulding 381 V. Wolf 245, 1061, 1068, 1832 V. Wolverton 21 r. Yonkers 1589 Frostburg Mut. Build. Asso. >:. Brace 1049, 1115, 1117, 1165, 1441 Fry V. Currie 376 V. Martin 1372, 1501 V. Shebee 1532 Fryatt v. Sullivan Co. 1717, 1738 Frye v. Partridge 780 Fryer u. Rockefeller 1161,1177, 1178, 143.5, 1446 Fuhrman v. Loudon 1132, 1133, 1443 Fulbriirht V. Yoder 562, 576 Fiilgbam ?;. Pate 44 FiilUim r. Stearns 1674, 1731 Fullenwidcr v. Roberts 1387 Fuller V. Arms 551, 742, 785 V. P.enett 1532, 1534, 1.037 V. Carr 364, 398, 399, 442 Fuller V. Cunningham 1455, 1472 V. Dauphin 480, 492, 501 V. Fuller 1908 V. Fellows 321, 337 V. Jillette 869, 930 V. Montague 1963 ;'. Scribner 1560 Fulmer's Appeal 1914 Fulshear v. Randon 1002 Fulton V. Fulton 1277 V. Hood 85, 86, 88 Fulton Bank v. New York & Sha- ron Canal Co. 1534, 1539, 1543 Fulwood V. Graham 381, 383, 386, 398 Funk V. Brigaldi 1703 V. Creswell 891, 892, 914, 921, 967 V. Haldeman 1597 V. McReynold 1585 V. Newcomer 1921 V. Paul 1390 V. Rentchler 62 V. Voneida 837, 841, 884, 930, 958, 962, 967 Funkhouser v. Lay 1529 Furguson v. Bond 1238, 1259, 1287, 12.S8 Furman i\ Elmore 968 V. McMillan 1853 Furnas v. Durgin 903, 906, 969, 975, 1330 Furness v. Williams 896, 978 Furniss v. Ferguson 944, 945 Furrh v. Winston 1853, 1979 Furrow v. Atbey 40, 44, 45 V. Chapin 1109 Futrill V. Futrill 99 Gabby y. Forgeus 81, 119G Gabert v. Olcott 650 Gadberry v. Sheppard 625, 632, 650, 670, 6 78 Gafford v. Stearns 1390 Gage V. Bissfll 1942, 194 7 V. Downey 1862, 1866, 1S69 V. Gage 1022, 1292, 1301, 1884, 1891 V. School District 692 Gaines v. Poor 88 V. Saunders 1522, 1547 V. Summers 1394 Galbraith v. Galbraith 1770 V. Lunsford 364 Galbreath ;;. Cook 295 V. Drought 1628 V. Estes 1559 Ixix TABLE OF CASES. References are to Sections. Galbreatli r. Moore 1830 Gale c. (. obuni 268, 2!)5 V. Gale 1022 V. (u.uld 288 V. nines 1862, 1865, 191!) v. Morris 1360, 1508, 1519, 1547 V. ShiUock 1440 V. Ward 1712, 1731, 1733 r. Williamson 295 Gallagher r. Galletley 1406 V. Shipk'y 1708 Gallaher v. Herbert 632, 635, 637, 646 Gallaud V. Jackman 307, 1365, 1404, 1517 Gallatin Turnpike Co. v. State 391 Galley v. Galley 1153 Galpin V. Abbott 1435, 1441 Galusha y. Sinclear 1778,1903 Galveston, &c. lly. Co. v. Pfeuffer 625 V. Stealey 214 Galveston County ?;. Tankersley 386, 491 Galveston Land & Imp. Co. v. Per- kins 175, 191 Galveston Railroad Co. v. Cow- drey 1590, 1729, 1730 Galway v. Malchow 1404 Gamble v. Caldwell 187 V. Hamilton 121, 12S Gambril v. Rose 312 Games r. Stiles 219, 1007 Gammon v. Hodges 1485 Gamons v. Knight 1220 Gandolfo v. Hartman 740 Gann v. Free Fishers 470, 472 Gannett v. Albree 767 Gano V. Aldridge 410 Garanflo v. Cooley 1619, 1628 Garcia v. Callender 669, 739 Gardenier u. Furey 1792 Gardiner v. Harback 1340 V. Heald 1940 Gardner v. Dit-derichs 1586 V. Emerson 1492 V. Finley 1667, 1748 V. Gardner 74, 1014, 1016 V. Heartt 1761 V. Li^rhtfoot 99, 103 V. London, C. & D. Ry. Co. 142 V. Moore 1087, 1441 Garfield v. AVilliams 928, 953 Garitee v. Baltimore 471 Ixx Garland v. Hodsdon V. Wells Garner v. Jones Garnett v. Garnett V. Stockton Garnier v. Barry Garnsey v. Rogers Garrard ?'. Hull Garret i'. Weinberir 503, 540 1831, 1335 1792, 1802 228 1178 1178, 1183 865 1570 1971) Garrett V. Burlington Plough Co. 151 V. Christopher 1396 V. Lyle 1563 V. Moss 1185, 1190 V. Puckett 1551 V. Scouten 675 V. Stuart 948 Garrison v. Cox 1966 V. Hall 471 V. Haydon 1457, 1458 V. Sandford 928, 930, 937, 962, 96 7 V. Savignac 1863 Garstang v. Davenport 449 Garth V. Fort 1201, 1213 Garvey v. Fowler 927 Garvin v. Dean 397 V. Ingram 43 Garwood v. Garwood 1406 V. Hastings 218, 229 Gashwiler v. WiUis 1080 Gass V. Sanger 926, 944, 945 Gassen v, Hendrick 1392 Gaston v. Bennett 99 V. Merriam 1220 V. Portland 1303, 1310, 1311, 1314 V. Weir 40, 336, 339, 1004 Gately v. Wei don 124 Gates V. Dundou 82, 89 V. Salmon 1947, 1968 Gatzmer v. St. Vincent School Soc. 814, 820 Gaugh V. Henderson 297 Gauit V. Hall 268 Gausen v. Tomlinson 1494 Gauson v. Madigan 338 Gavin v. Buckles 948 Gavit V. Chambers 480, 484 Gawtry v. Leland 752, 784 Gay V. Baker 580 V. Parpart 277, 1954 V. Walker 503, 516, 528 Gayetty v. Bethune 1637, 1658 Gayle, Succession of 1372 Gayle V. Johnston 1884, 1887 Gaylord v. King 454 Gazley v. Price 828 TABLE OF CASES. References are to Sections. Gear v. Barnum 448, 449, 454, 455, 461 Geary i\ Kansas City 1073, 1140, 1147, 1148, 1149, 1440 Gebb V. Rose 40, 42, 43, 1212 Gebhardt c. Keeves 4C8 Gediiey v. Prall 1866 Gee V. Gee 1265 V. Moore 892, 896 V. Pbarr 834, 836 V. Spencer 356 Geer •. Kedman 857 Geissmann v. Wolf 1291, 1292 Gelott V. Goodspeed 1101, 1102, 1104 General Ins. Co. v. United States Ins. Co. 1417 General Prov. Ass. Co., In re 144 General So. Am. Co., Jn re 144 Center v. Morrison 1238 Gentile v. Crossan 338 Geofroy V. Riggs 165 Gerald v. EUey 861, 882 V. Freeman 382, 384, 389, 392 Gerdine v. Menage 855 Gere v. Gushing 1430 Gerhard v. Commissioners 475 German i'. Chapman 766, 7 73, 805 812, 813, 823 German Land Asso. v. Scholler 236, 242 German Mut. Ins. Co. v. Grim 121 Germania Sav. Bank v. Jung 1809 George v. Bartoner 901 V. Bates 323 V. Cooper 1415 V. Kent 1483, 1510, 1522, 1546, 1547, 1551 V. Putney 921 V. Thomas 355, 356, 3 76, 377, 378 V. Wood 382, 1482, 1489 Georgia C. & N. R. Co. v. Scott 1792, 1796 Georgia R. Co. i'. Hamilton 381 Georgia So. R. Co. v. Reeves 647, 798 Gerrish v. Clough 485 V. Shattuck 546 V. Towne 487 Gest V. Flock 1168 V. Kenner 929 V. Pack wood 1394 Getchell V. Allen 1432 V. Whittemore 326. 413, 521 Gettysburg Nat. Bank v. Chis- olm 1361 Ghcen v. Harris * 870 Gibbons v. Dillingham 1619, 1622, 1624 V. Gentry 1123, 1124 Gibbs V. Estey 1691 V. Grant 1497 V. McGuire 1063, 1068 V. Swift 404, 1109, 1822 V. Thayer 892 Gibert v. Peteler 623, 624, 637, 723, 743, 771, 780, 782, 1547 Gibson v. Bennett 280 V. Bogy 326, 327 V. Brockway 1652 V. Chouteau 896 V. Colt 1033 V. Hough 1466 V. Jeyes 103, 116 V. Keyes 1463, 1586 V. Partee 1303, 1311 V. Richart 828 V. Seymour 1466 V. Soper 32, 54, 57, 67, 70 V. Win slow 1837 V. Zimmerman 1791, 1792, 1800 Giddens v. Boiling 1196 V. Byers 1041 Giddings v. Day 337, 339 V. Smith 613 Gifford V. Corrigan 1241, 1279, 1289, 1291 Gilbert V. Anthony 1328 V. Averill 1484 V. Emerson 448 478, 502 V. Hole 173 V. Insurance Co. 1303 17. Jess 1087 V. North Am. F. Ins. Co. 1252, 1292, 1294, 1304 V. Richards 1770 V. Rushmer 962, 964 Gilbraithu. Gallivan 1122, 1208 Gilbreath y. Dilday 1146 Gilchrist v. Beswick 1835, 1836 V. Gough 1392, 1393, 1464, 1469, 1479, 1480 V. McGee 364 V. Middleton 1874, 1937 Gilder v. P>ri'nhaui 343 Giles V. Simonds 1606, 1609 Gill y. De Armant 1692 V. Fauntleroy 1127, 1141, 1190, 1212, 1866, 1880 V. Hardin 1563, 1575 V. Lydick 485 V. Pearson 662 V. Pinney 1456, 15.0.") Ixxi TABLE OF CASES. References are to Sections. Cillan V. Dixon 17;)2, 1S02 (;illo v. Hunt 244, 24.^ Gillespie v. Bailey 2, 18, 24, 26, 31, 35 V. Broas 630, 631 V. Brooks 1064 V. Moon 1437 V. Rogers 219, 225, 1451, 1472 Gillett V. Abbott 251 V. Balcom 1628, 1 630 V. Gaffney 16.S9 J'. Stanley 1196 Gillii; V. Maass 1424, 1460, 158S Gilliland v. Fenn 995 Gillis V. Bailey 751, 814 ('. M'Kinney 1917 Gillum t'. St. Louis, A. & T. E,y. Co. 1925, 1926, 1928 Oilman v. Moody 1586, 1587 V. Philadelphia 471 V. Stetson 1862 Gilmer v. Mobile & M. Ry. Co. 795 Gilmore v. Hayworth 650 V. Morris 1220 V. Sapp 12^9 V. Wilbur 559, 1604, 1924, 1925 Gilpin v. Hollingsworth 1819 Gilson V. Gilson 1824 Giniell v. Adams 1031 Gimon v. Davis 1259 Girardin v. Lampe 1395, 1420, 1442, 1505 Gittings V. Worthington 1953, 1979, 1981 Glading r. Frick 14 72 Gladwin v. Garrison 271 Glass V. Glass 233, 58i> Glasscock V. Glasscock 1071 Glaze V. Three Rivers Farmers' Mut. Fire Ins. Co. 1244, 1290, 1292 Gleason v. Burroughs 544 V. Fay er weather 660, 662 V. Hamilton 1338, 1340 V. Smith 893 Glendenning v. Bell 1408, 1563, 1566 Glenn v. Davis 632, 678 V. Hill 1303 V. Mathews 968 V. Thistle 913 Glidden y. Bennett 1748 V. Hunt 1504, 1529, 1531 V. Strupler 36, 37, 1182 Globe Marble Mills Co. v. Quinn 1 766 Ixxii Glouinger v. Franklin Coal Co. 538 Godard v. Gould 1679, 1733 Goddard v. Donaba 1396 V. Parker 3 SO V. Prentice 1407 Goddin v. Vaughn 828 (Jodfrey v. Bryan 1811 Godman v. Simmons 613 Goelet V. Gori 1792 V. McManus 1504 Goff V. Rogers- 271 Gohegan v. Leach 88 Goins V. Allen 1563 Golden v. Ilardesty 1256 Golding ?;. Golding 112 Goldsborough v. Pidduck 368, 434 Golson V. Fielder 285, 1390, 1549, 1866, 1874, 1875 Golterman v. Schiermeier 363, 367 Gooch V. Bryant 1359 Good V. Zercher 37 Goodall V. Godfrey 534 Goodbar v. Dunn 323, 402, 1436 Goode V. Smith 1182, 1190 Goodel V. Bennett 889 Goodell V. Bates 1014, 1018 V. Hibbard 213 V. Pierce 1277 Goodenough v. McCoid 1402 V. Warren 1109 Goodenow v. Allen 1699 V. Curtis 1342 V. Ewer 1884, 1887 Goodhue V. Barnwell 1940 Gooding v. Riley 1679 V. Shea 1759, 1763 Goodlett V. Hansen 1353 V. Kelly 1217, 1221, 1234, 1248, 1250 Goodman i\ Baerlocher 1455 V. Kine 1912 V. Myrick 389, 438 V. Randall 1005 V. Sapp 49 V. Winter 31, 1947 Goodnow V. Empire Lumber Co. 9, 27, 28 Goodpaster v. Leathers 646, 1234, 1307, 1309 Goodrich v. Burbank 511 V. Cushman 81, 91 V. Jones 1708, 1709 V. Lambert 602 V. Shaw 81 Goodridge v. Goodridge 579 Goodright v. Cator 718 V. Moss 207 TABLE OF CASES. References are to Sections. Goodsell V. Lawson 471 I'. Stinson 1448 Goodspeed r. Fuller 275, 295, 301, 303, 948 Goodtitle v. Gibbs 562, 564, 565 V. Tombs 1921 Goodwin r. Cloudman 1563 V. Dean 1515, 1517 V. Gilbert 510 V. Hubbard 559 V. M'CIuer 1034 V. Owen 1448 V. Richardson 1824 V. Smith 1619, 1621, 1628 Goodwyn y. Spray 1912 Goodyear v. Adams 54, 71 V. Shanahan 494 Gordon v. Booker 381, 384, 438 V. Bulkeley 1016, 1021 V. Collett 1216 V. Goodman 321 V. Gordon 301, 303 V. Haywood 36 V. Leech 1123, 1124, 1174 V. Pearson 1865 V. Preston 144 V. Rixey 1420 V. San Diego 1238 V. Sizer 1340, 1342 V. Trimmier 336, 1292, i 1293 Gore V. Brazier 969 V. Dickinson 1963, 1965 V. Gibson 74 Gorham v. Eastchester Electric Co. 1645 V. Gorham 12 V. Meacham 223, 237, 1217, 1218, 1269, 1289, 1301 V. Summers 1469 Gorman I'. Gorman 1236,1277 V. Stanton 1168 Gosselin v. Smith 1910 Gossett V. Tolen 1460 Gossom V. Donaldson 1559, 1835, 1836 Gotham V. Gotham 1487 Gotthelf V. Stranahan 871 Gou<,di V. Bell 472 Gould V. Day 1298 V. Eastern R. Co. 448, 449, 450, 453, 45.5, 456 V. Howe 452, 503, 504, .542 V. Lamb 593 V. Railroad Co. 471, 472 V. Wise 1252, 1256, 1315 Goundie v. Northampton W. Co. 1 75, 181 Gourdin v. Commander 1331 V. Davis 398 V. Deas 609 Gourley v. Hankins 1057 Gouverneur v. Lynch 1563, 1571 V. Nat. Ice Co. 490, 493, 496, 501 V. Titus 1437 Gove V. Cather 1178, 1183 V. AVhite 448 Governeurt). Robertson 167 Goward v. Waters 295 Gowen v. Shaw 1884, 1887 Gower V. Doheney 1408 V. Quinlan 1919 Grabfelder v. Gazetti 1608 Grace v. Wade 1408, 1529 V. Whitehead 29 Graeme v. Cullen 166 7 Graflf V. Fitch 1620 V. Middleton 1394 Grafton v. Moir 531 Gragg V. Richardson 923 Graham v. Anderson 1130, 1197, 1206, 1207, 1447 V. Burch 98, 99, 101 V. Dewees 432, 439 V. Dyer 916, 922, 924, 968, 982, 985 r. Graham 992 V. Hawkins 1396 V. Hite 761, 774 V. Holt 1328 V. Long 1182, 1185 V. Nesmith 1563 V. Newcastle-upon-Tyne 752 V. Pierce 1891, 1898 V. Railroad Co. 290 V. Stevens 626 V. Stuve 40, 42 V. Van Wyck 41 V. West 1515 Granby v. Allen 160 Granby M. Co. v. Richards 1 76 Grand County v. Larimer Co. 391 Grand Island Banking Co. v Frey 1740 Grand Junction R. Co. v. Bick- ford 149 Grand Junction R. Co. v. County Commissioners 424 Grand Rapids & Ind. R. Co. 463 Grand Tower M. M. & T. Co. v. Gill 217, 1156 Grand Trunk Ry. Co. c. Dyer 398 Ixxiii TARLE OF CASES. References are to Sections. Graiulin r. Ainlerson 1482, 14S;5 ('. Hernandez lOCl Grandona v. Lovdal 1014 Grandy r. Casey 410 Granger i\ Avery 484 V. Crouch 1586 V. Swart 122 Grant v. Armstrong 327 V. Bennett 1394 V. Bissett 1484 V. Chase 1(358 V. Dod2;e 1409, 1415 V. Henry Clay Coal Co. 175, 190 V. Hill 945 V. IMoon 461 V. Tallman 962, 967, 974 V. Thompson 56, 65 V. U. S. Bank 1498 V. White 490, 491, 1196 Grapengether v. Fejervary 1212 Graser v. Stellwagen 1832 Gratz V. Ewalt 837, 838, 840, 841, 1949 Graves v. Atwood 525 V. Deterling 627, 632, 635, 636, 637, 641, 741, 815 r. Dolphin 663 V. Dudley 1252 r. Fisher 486 i: Graves 309 V. Mattingly 831 V. Pierce 1720 V. Trueblood 590 Gray i'. Bates 1880 r. Berry 358 t'. Blanchard 623, 638, 657, 673, 677, 698, 705, 723, 743 V. Deluce 476 V. Gardner 253 V. Givens 905, 1936 f. Kauffman 167,1170,1173 I'. Lake 271 V. Lessington 35 V. Limerick 249 V. Mathis 38 V. Patton 1403 V. Ulrich 1109, 1207 Graybeal v. Davis 582 V. Powers 388 Graydon v. Hnrd 1873 Graysons r. Richards 1259 Great Falls Co. v. Worster 333, 375, 376, 1572 Great Western Stock Co. v. Saas 843 Greeley i'. Stilson 1606 Ixxiv Greeley v. Weaver 338 Green v. Abraham 1125, 1215 V. Abrahams 1216 V. Armstrong 1600, 1601, 1603, 1624, 1627 V. Arnold I960, 1966, 1977 V. Batson 902 V. Chelsea 476 V. Collins 335, 336, 910, 1642, 1643 V. Drinker 1435 r. Garrington 1472, 1479 V. Green 20, 24, 31, 32, 33, 1459, 1528 V. Gross 1086, 1153 V. Home 825 V. Irving 913, 914, 915 I'. Liter 1229 V. Morgan 1513 V. Pettingill 715 V. PhiUips 1712, 1714 V. Putnam 551, 1900, 1902, 1981, 1997 V. Rick 1559 V. Roworth 113 V. Scranage 88 V. Slayter 1554, 1560 V. Sutton 567, 590 V. Thomas 266, 267, 274 V. Wilding 2, 27 V. Witherspoon 1436 V. Yarnall '' 1236 Green Bay & Miss. Canal Co. v. Hewitt 326, 413, 420, 505, 531, 536, 565 Greenby v. Wilcocks 893, 928, 930 Greencastle v. Hazelett 1599 Greene v. Conant 1240, 1280, 1296, 1299 V. Creighton 779 V. Deal 1494 V. Dennis 241 V. Godfrey 1196 V. Nunnemacher 488 V. O'Connor 632, 635, 650, 651 V. Warnick 1495 Greenfield's Estate 105, 1009 Greenfield Bank v. Crafts 1019 Greenhill v. Biggs 1866, 1868, 1879, 1880 Greenlaw v. Williams 924 Greenleaf v. Allen 825 V. Birth 518 V. Brooklyn, &c. Ry. Co. 386 V. Kilton 484, 486 TABLE OF CASES. References are to Sections. Greene v. Barnard 1415 Greenough ;;. Turner 316, 319 Greenslade v. Dare 55, 72, 1583 Greenvault v. Davis 298, 892, 915, 919, 921, 971 Greenwade v. Greenwade 49 Greenwold v. Jenswold 1371, 1481 Greenwood v. Coleman 7 Greer r. Blanchar 1784 Gregg V. Blackinore 1872 Greer v. Greer 49 V. Higgins 1511, 1563 V. N. Y. Cent. & H. R. Co. 448, 462, 463 V. Pate 576, 617 V. Squire 437, 438 V. Tripp 1871 V. Wintersmith 131 Gregg V. Hill 384, 392, 440 V. Patterson 1898, 1904 Gregor v. Hyde 85, 86 Gregory v. Forbes 471 V. Ford 1159, 1188 V. Gregory 1879 V. Kenyon 1159 V. Knight 443 V. Perkins 1466 V. Savage 1523 V. Walker 1230 Greither v. Alexander 1680, 1738 Grellet v. Heilshorn 1372, 1462, 1466 Grennan v. McGregor 520 Gresham v. Chambers 331, 339 V. King 1793 V. Webb 120 Gress v. Evans 1396, 1398 Gress Lumber Co. v. Coody 339, 404 Gresty v. Gibson 225 Gribben v. Maxwell 54, 68, 69 Grice v. Scarborough 868 Grider v. American Mortgage Co. 1166, 1203, 1204, 1205 Grier r. Penn. Coal Co. 432 V. Rhyne 337 Griesler v. McKennon 1170 Griffin v. Birkhead 43 V. Bixby 381, 1614 V. Fairbrother 842, 843 V. Griffin 1196, 1197, 124S V. Marquardt 13S1 V. Reynolds 837, 945 V. Sheffield 1073, 1440 Griffith V. Frederick Co. Bank 272 V. Griffith 1544 V. Marsh 526 V. Rife 434 Griffith V. Schwenderman 156 V. Ventress 1207, 1208, 1209, 1212 V. Winborne 1221, 1314 Griffiths V. Morrison 384, 1637, 1639 Griffitts V. Cope 650 Grigg V. Landis 73 7 Grigsby v. Combs 354, 359 V. Schwarz 271 Grim v. Wicker 1836 Grimball v. Mastin 307 Grimes v. Brigrgs 87 V. But'ts 1942, 1947 V. Hobson 1406 V. Shaw 52 Grimmer v. Carlton 274 Grimsley v. Riley 1069, 1071 Grimstone v. Carter 1462, 1563, 1564 Griscom v. Evens 329 Grist V. Hodges 915, 917, 919, 928 Griswold I'. Butler 52 V. Hicks 583, 610, 617 V. Johnson 1819 r. Messenger 304 V. Miller 52, 76 Groce v. Jenkins 305 Grocers' Bank v. Penfield 1393 Groesbeck v. Harris 981 V. Seeley 1125 Groff V. Ramsey 1563, 1575 V. State Bank 1575 Grogan v. Vache 404 Groner v. Smith 1069, 1070 Grose V. West 448 Grosvenor v. Bethell 1 705 Grosz V. Jackson 1704 Grotenkemper v. Carver 1196, 1197, 1201, 1213 Groton Sav, Bank v. Batty 1575, 1578, 1579 Grout V. Townsend 303, 309 Grove V. Brien 1285 V. Jeager 43 V. Todd 1182, 1212, 1215 V. Zumbro 1182, 1195, 1442 Grownino- v. Behn 1075, 1440 Grube i'.' Wells 368 Grueber v. Lindenmeier 568 Grundies v. Reid 1292, 1517, 1520, 1522 Guard v. Bradley 1240, 1282 Guerin v. Smith 987 Guerrant v. Anderson 1406 Guersney v. Wilson 166 7, 1745 Guess r. South Bound Ry. Co. 1240 Ixxv TABLE OF CASES. References are to Sections. Guest V. Beeson 48, J)i) Gurty r. HukiU 720 Giig V. Stinson 484, 499, 50(> Hathorne v. Haines 1 2S Hatter v. Greenlee 79, «0 Hattersley v. Bissett 292, 1909 Hauenstein v. Lynliam 165 Haug V. Third Nat. Bank 1381 Haughabaugh v. Honald 194 7 Haughton v. Sartor 321 Haughwort v. Murphy 1527, 1528, 1559, 156U Hauk V. MeComas 1942, 1945, 1947 Hause v. Hause 1887 Haussnian v. Biirnham 43 Haven v. Adams 1049, 1559 V. Emery 1682, 1736, 1737 V. Kramer 1314 V. Mehlgarten 1830 Havens v. Dale 265 V. O shorn 1365 V. Seashore Land Co. 562, 565, 581, 613, 616 V. West Side Elec. Light Co. 1723 Hawes v. Hawes 1771 V. Mann 1182 V, Railroad Co. 31 V. Wiswell 1568 Hawesville v. Lander 448, 449 Hawkes v. Pike 1220, 1267, 1269, 1276, 1289, 1448 Hawkins v. Burress 1190 V. Chace 1002 V. Chapman 593 V. Files 1406 iJ. Hersey 1670,1678,1741 V. Lee 602 Hawley v. Bullock 1458, 1513, 1563 V. James 593 V. Northampton 613, 660 V. Tesch 105 Haworth v. Norris 1254, 1303 V. Taylor 1451, 1455, 1566 Hawthorne v. City Bank 966 Hawtry v. Butlin 1765 Hay V. Bennett 1782 V. Estell 1963 I'. Hill 1455 V. Mayer 1045 Playdel v. Dufresne 438 Hayden v. Bucklin 1560 V. Burkemper 1628 TABLE OF CASES. References are to Sections. Haydenv. Easter 1240, 1272 V. Goodnow 1367 V. Meeks 13U V. Merrill 1891, l.sii2 r. Moffat 1109, 1188, 11!)0, 1193 V. Patterson 1931 V. Stoughton 656, 682, 728 V. Wescott 1171, 1196 Haydock v. Haydock 101 Hayes's Appeal 1963 Hayes v. Bickerstaff 893 V. Bowman 484, 490 V. Boylan 1227, 1233, 1237, 1267, 1269, 1276 V. Davis 1265 V. Ferguson 903 I'. Frey 1185 V. Livingston 355 I'. Parker 6 V. Waverly & P. R. Co. 694, 780, 782 Hayne v. Gould 1956, 1990, 1995 Hayner v. Eberhardt 205, 1392 Haynes v. Bennett 18, 20, 21 V. Heller 324 V. Rudd 88 V. Seachrest 1585 V. Stevens 879, 979, 983 V. Young 381, 881, 882 Haynsworth v. Bischoff 1389 Hays V. Askew 258, 260, 531, 542 V. Doane l'^^ V. Galion Gas, &c. Co. 144 V. Hays 1201 V. Ottawa, &c. R. Co. 142 V. Peck 295, 862, 1624 V. Perkins 331 V. Reger 1404 Hayward v. Davidson 173, 175, 178, 181 V.Kinney 664, 708, 711, 723 V. Nat. Insurance Co. 1536 Hayward Homestead Asso. v. Mil- ler 745, 780 Haywood v. Brunswick Building Soc. 780 V. Nooney 1412, 1414 V. Shaw 1532 Hazard v. Albro 1890 Hazelrigg v. Donaldson 89 Hazen r' Barnett 1942, 1947 Hazlett V. Sinclair 785, 1547 Heacock v. Lubuke 1197, 1485 Headley v. Bell 15«3 Headman v. Rose 168 Healey v. Babbitt 448, 459, 468 V. Seward 1250, 1256, 1320 V. Worth 1213 Heane v. Rogers 1582 Heaps V. Dunham 80 Heard v. Fairbanks 1627 V. Hall 831 V. Horton 232, 583, 585 Hearle v. Greenbank 2 Hearick v. Doe 1879 Heaston v. Randolph Co. 650 Heath v. Big Falls Cotton Mills 1053, 1073, 1075, 1082, 1440 V. Blake 1351 V. Crealock 257, 258 V. Heath 580 V. Hewitt 232, 583 V. Kutter 1021, 1033, 1035 V. Second Nat. Bank of Lafayette 174 V. Silverthorn, &c. Co. 285 V. Stevens 31 V. West 29 V. Whidden 928 Heatley v. Finster 1527 Heaton v. Hodges 431 1-. Prather 1483,1485,1489, 1517, 1555 Heavilon c. Heavilon 1619, 1621, 1624 Heberd v. Wines 1404 Hebron r. Centre Harbor 1439 Hecht V. Dettman 1631 Heck v. Remka 381 Heckert v. Haine HOI Heckman v. Swartz 95 Hedden r. Overton 1440 Hedge v. Drew 1238, 1290, 1296 r. Sims 389 Hedger r. Ward 1133 Hedges v. Kerr 828 Hedrick v. Atchison, &c. Ry. Co. 1522 V. Smith 983 Heeney v. Brooklyn Benev. Soc. 167 Heermans v. Montague 1406, 1407 Heeter v. Glasgow 1196, 1197, 1198, 1206, 1444, 1447 Heffclfinger y. Shutz 1367 Heffelman r. Otsego Water Power Co. 338, 424 Heffron '•. Cunningham 1303 r. Flanigan 1497 Heflin v. Bingham 1600, 1604, 1606 v. Phillips 837, 928 Hefner v. Downing 363, 367 Ixxxi TABLE OF CASES. References are to Sections. Iloil V. Reddon lloilliniii r. llaminond Ilt'ilman '■. Kruh Ilciiili'ii /•. Mai'liii IK'iiirii'li r. Simpson Heinz r. Cnuner Heister r. Fortner 1172, 12!)2 1442 119(), 119.S 1022 1178 3li7 1402, 1442, 14G8 Helliiwell V. Eastwood 16 71, 1703 Ilellcr, In re. 1900 Hellyor r. King 11)3(5 Holm c. Gilrov 1672, 1712, 1714, 1721 /•. riehn 85 c. Klfinschmidt 1306, 1308 r. Webster 463 r. Wilson 355, 358, 364 Ilelme r. Guy 1637 Ilelnier v. Castle 448 Helms r. Chadbourne 1482, 1514, 1517, 1522, 1559 Hemenway v. Cutler 1695 Hemingway v. Scales 1793, 1800, 1802, 1803 Hemphill's Case 492 Hemphill r. Holford 99 Hempstead v. Johnston 1285 Hencke ''. Johnson 946 Hendee r. Pinkerton 146, 1066 Henderson r. Baltimore 1239 ('. Downing 1407 V. Easen 1887, 1S88 V. Ford 1038 V. Grewell 1159, 1162, 1169, 1173, 1178, 1180 V. Hatterman 386, 448, 454, 455 V. Henderson 302, 303, 309, 948, 958, 962 V. Hodgen 1258 V. Hunter 630, 65G V. Hunton 274 V. McGregor 49, 1478 f. Mack 565,56 7,568, 569 V. Pilgrim 1420, 1423 V. Rice 1182, 1190 V. Smith 1182, 1196, 1198 Hendon k. White 1086, 1110 Hendrick v. Crowley 295 Hendricks r. Huffmeyer 1441 c. Keesee 928 '•. Rasson 1289 V. Robinson 272 c. Stark s «77 Hendrickson's Appeal 1403, 1466 Ixxxii Hendrickson r. Woolley 1499, 1500, 1589 Hendrix r. Baggs 1072 r. Money 56 Hendy v. Smith 1226, 13.S7 Henfree v. Bromley 133S, 134 6 Henkle v. Dillon 1672, 1684, 1740 Henley t'. Wilson 346, 351 Henman v. Dickinson 1365 Hennessey v. Andrews 1578 Hennessy r. Murdock 448, 449, 450 Henning v. Bennett 485 r. Withers ,968 Henninger r. Heald 1529, 1530 Henrichsen c. Hodgen 1240 Henry r. Anderson 1282 V. Atkison 1056 r. Carson 1256, 1314, 1315, 1448 r. Etowah Co. 686 ('. Raiman 1527 V. Root 29, 158 V. Tupper 646, 693, 732 V. Von Brandenstein 1719, 1732, 1753 V. Whitaker 331 Henry Co. a. Bradshaw 1239 Hensal w. Wright 1911 Henshaw v. Mullens 391 Hensley c. Brodie 16 79 Hepburn v. Dubois 1109 Herbert v. Herbert 1276, 1289 V. Odlin 1822 V. Pue 503, 528, 556 V. Rainey 448, 449 V. Wise 381 Herd v. Cist 1146, 1442 Herff v. Griggs 1389 Herman i\ Deming 1436 Herndon v. Harrisson 943 V. Kimball 1435 /•. Reed 1124 Herren ;■. Strong 1090 Herrick v. Hopkins 324, 410 V. Malin 1340, 1346, 1348, 1361, 1367 V. Marshall 505, 551 V. Moore 882, 962, 967 V. Musgrove 1196, 1205 V. Sixby 401 Herring v. Rogers 6 1 7 V. White 1139, 1196, 1206 V. Wickham 281, 283 Herrington v. Herrington 1559 Herryford r. Turner 828 Hersey v. Turbett 1559 TABLE OF CASES. References are to Sections. Hershee v. Hershsey 1591 Hershey v. Metzgar 1623, 1627 Hershman v. Hershman 712 Hertzog V. Hertzog . 968 Hervey i\ Smith 1569 Hess I'. Cheney 398, 399, 481, 4.S2 V. Clark 1392 t'. Meyer 436,437,438 Hester r. Hiinnicutt 919 Hetherington v. Clark 1482, 1520 Heuisler r. Nickum 1410, 1414 Hewes V. Wiswell 1567 Hewitt V. Loosemore 1538, 1539, 1544, 1545, 1565 V. Morgan 1150 V. Week 1087 Hext V. Gill 538 Heyn v. Ohman 904, 918 Heyshara v. Dettre 89, 1703 Hiatt V. Calloway 14 72 Hibbard v. Foster 1937 Hibberd v. Bovier 1406 V. Smith 1218, 1223, 1224, 1240, 1267, 1277, 1281, 1282, 1300 Hibblewhite v. M'Morine 1328 Hickey v. Lake Shore, &c. Ry. Co. 647, 648 Hicklin V. McClear 338, 425, 428, 449 Hickman v. Green 1532, 1536 )•. Perrin 1455, 1483 Hickory Farm Oil Co. v. Buffalo, N. Y. & P. R. Co. 173, 190 Hicks V. Bullock 582 V. Cochran 1792, 1797 V. Coleman 395, 396, 400, 401, 491, 492 V. Goode 1311 Hieatt v. Dixon 23, 27 Hiern v. Mill 1544, 1559 Hiester v. Green 644 Hiett V. Shall 48 Higbee v. Rice 1862, 1879, 1880, 1919 V. Rodeman 650, 68 7, 723, 728 Higginbottom v. Mateer 1955 V. Short 1994 Higgins V. Brown 85 _ V. Higgins 42 V. Wasgatt 5G8 Highberger v. Stiffler 99, 101, 103 Highley v. Barron 31 Highstone v. Burdette 1870, 1879 Higinbotham v. Stoddard 124, 384, 386, 400, 401 Hignite v. Hignite 1862, 1881 Higueras v. United States 432 Hiiin V. Peck 620, 1912 Hilborn v. Bucknam 85, 86, 87 Hileman v. Bouslaugh 575, 602 Hiles V. Atlee 1481 V. Fisher 1792, 1804, 1812, 1813 V. La Flesh 1165, 1178, 1179 V. Rule 1966 Hill D. Bacon 869,1127,1196 V. Barclay 732 V. Blackwelder 363 V. Butler 943 V. Cutting 532, 1604, 1606, 1609 V. De Rochemont 1708 V. Edie 364 V. Evans 487 V. Farmers' & Mechanics' Nat. Bank 1721 V. Gibbs 1925, 1935 V. Grange 163 7 i". Hill 559, 667, 1220, 1233, 1234, 1236, 1248, 1269, 1274, 1278 V. Hobart 828, 829 V. Lord 530 V. McCarter 1482, 1489 V. McNichol 1218, 1286, 1289, 1469, 1499, 1502, 1529, 1531 V. Manchester, &c. W. Co. 1082 V. Meeker 1383 V. Miller 101 V. Moore 1525 r. Mundy 1707 V. Murray 1522 V. Nash 48, 49 V. National Bank 1668, 1712 V. Nelms 1365 ('. Newman 1925 I'. Proctor 376 V. Sewald 1668, 1756 V. Taylor 1112, 1154, 1442 V. Tupper 787 D. Wentworth 1668,1674,1717 V. West , 294 V. Young 1963, 1994 Hiller )'. Jones 1565, 156 7 Ilillhouse I'. Mix 1935 Hilliard v. Scoville 1970 Hi II man, Ex parte 293 Hills V. Bcarsc 38 V. Doc 1824 V. Ilomton 491 r. Ludwig 358, 359 V. Miller' 780, 784 Hillyer v. Bennett 31, 35 Ixxxiii TABLE OF CASES. References are to Sections. IlilnuTt r. Christian S45 liiltiin's Appoal 141!) Hilton r. (;ilman 422 lliim-s r. Kci-hhlinglier 1288, 121)2 Hinclu'v c. Xichols 337, 344, 353 lliiu'hli'fY r. Ilinman IIU Iliiulunan v. Town 141)1 Ilimle V. Longvvorth 279 llin.ls ('. Allen !)24 V. Eallou 1409 V. Dodd 1499, 1517 V. Fugh 1390 V. Koberts 1472 Ilinely v. Magaritz If! liines i'. Anient KJOS V. Thorn 1148 V. Trantham 1935 Hinkley i\ Grouse 365 V. Greene 1880 Hinkley & E. Iron Co. v. Black 1668, 1695, 1696, 1698 Hinman v. Booth 1319 Hinson v. Bailey 1230, 1234 V. Bush 1801 ITinters v. Hinters 1835, 1853 Ilinton V. Leigh 1501 V. Roach 337 V. Walston 1634 Hirsch v. Tillman 37 V. Trainer 53 Hirth V. Graham 1600 Hislop V. Leckie 772 Hiss L\ McCabe 1171 Hitchcock V. Grimshaw 289 V. Kiely 289 V. Simpkins 527, 646 V. Skinner 1862 Hitchman v. Walton 1764 Hittinger v. Eanies 496 Ilitz V. Nat. Metropolitan Bank 1406 Hiiadley v. Hadley 1448 Hoar r." (Moulding 338 Hoag V. Howard 1404, 1562 V. Sayre 1406 Hohack v. Kilgore 828 Hobbs I'. Payson 326, 411, 413, 420 Hoboken City Bank v. Phelps 1267 Hoboken Land Co. v. Kerrigan 461, 463, 1162 Hobson r. Cartwright 764, 784 r. Kissam 1159, 1168 V. Middlcton 853 u. Philadelphia 453 Hochstedler r. Hochstedler 605 Hockenhull r. Oliver 1394, 1464 Hockett /•. Jones 1234, 1309 l.KXxiv Hockman /•. McClanahan 1159, 1187, 1188, 1201 Hockmoth /•. Des Grands Champs 369 Hodge ('. Amerman 1563, 1564 V. Boothby 528 V. Gilman 1365 ('. Sloan 733, 771, 780,781, 789, 798 Hodgen v. Guttery 1381, 1486 Hodges V. Cook 113 V. Eddy 1880 V. Fleetwood 618 V. Heal 1926, 1931 V. Horsfall 425 V. Rowing 346 V. Latham 919 V. New England Screw Co. 141 V. Saunders 830 V. Thayer 943, 948, 949 V. Williams 481 V. Winston 1463, 1526 Hodgkins v. Montgomery Co. Ins. Co. 1532 Hodgson i\ Butts 276, 1441 Hodnett v. Forman 1104 Hoes V. Boyer 1380 Hoff V. Tobey 494 Hoffert V. Miller 2, 24 Hoffman v. Armstrong 1614 V. Beard 1963 V. Blume 1575 V. Bosch 968 V. Hoffman 1234 V. Mackall 1453 V. Port Huron 331, 352, 364, 371, 400, 466 V. Porter 244 V. Riehl 330 w. Stigers 1771,1793,1797, 1800, 1802 V. Strochecker 1527 V. AVhite 364, 372 Hoffsass V. Mann 575, 582, 587, 609 Hogan V. Hogan 1182 r. Welcker 575 Hogans v. Carruth 381, 388, 1015, 1101, 1106, 1109, 1125 Hogel r. Lindell 303 Hogg V. Beerman 497, 1867 V. Odom 225 Hogins I). Bojigs 335 Ho2;hton v. Hoghton 103, 108 Iloit r. Russell 1447, 1531 V. Stnitton Mills 559, 1604 TABLE OF CASES. References are to Sections. Holbert v. Edens 480, 488, 490, 493 Holbrook o. Chamberlin 1018, 1019, 12o7, 1765 V. Debo 892, 992 V. Dickenson I486 V. Moore 485 V. Nicbol 1146 V. Tirrell 1259, 1262 V. Worcester Bank 1447 Holbrooke v. Harrington 1990, 1999 Holcomb V. Coi-yell 1861 V. Mooney 335, 338 Holeombe v. Coryell 1976 V. Ricbards 1240, 1241 Holdane v. Cold Spring 451 Holden v. Burnbam 289 V. Cbandler 488, 495, 498 V. Garrett 1404, 1405, 1406 Holder V. Coates 1614 Holiday u. Cromwell 1143 Holladay v. Daily 1028 Holland v. Cruft 155 V. Hodgson 1671, 1712, 1725, 1748, 1764 V. Moon 1028 Holleman v. De Nyse 1153 Hollenback v. Fleming 1092 HoUenbeck v. McDonald 1660 V. Sykes 381, 383 Holley ?;. Glover 1994 V. Hawley 1866, 1879 HoUiday v. Cromwell 1435 V. Franklin Bank 1380, 1406, 1501 V. Maddox 374 V. Overton 249 Hollino'swortb v. Holbrook 1349 V. McDonald 616 V. Walker 1259 Hollins V. Demorest 769 HoUis V. Carr • 262 V. Dasbiell 1106 V. Drew Tbeological Semi- nary 183, 189 V. Harris 1353 V. Pond 1067 HoUocher i'. Delano 463, 464, 469 V. Hollocber 294, 295, 298, 303, 309 V. lloUoway 1963 V. Mcllbenny 1966 V. Soutbmayd 448, 462, 463, 469 Holly Manuf. Co. v. New Chester Water Co. 1668,1680,1741 Holman v. Patterson 1559 Holmes v. Bellingham 448, 449 Holmes v. Best V. Blogg V. Buckner 1371 V. Danforth V. Goring V. Hill V. Holmes V. Johns V. Powell V. Seely V. Sinnickson 1883, 1892 27 1408, 1506, 1529 887 534 80 595 990 1563 1639 968, 983 Stout 1517, 1529, 1563, 1568, 1569, 1570 Turner's Falls Co. 463 Holston V. Needles Holston Salt Co. v. Holt's Appeal Holt V. Agnew V. Baker V. Maverick V. Moore V. Robertson V. Thomas V. Wilson Holt County Bank v. Tootle 326 Campbell 335, 336, 409 1240, 1272 88, 92 1584 1364 1196, 1198, 1205 1892 87 1802 496, 1699 1837, 1.846 1962 831 321 1159, 1162 218 Honzik v. Delaglise Hoobler v. Hoobler Hood V. Brown V. Fahnestock Holterboff v. Mead Holton V. Guinn Holyoke v. Clark Homan v. Stewart Homer v. Schonfield Hommel v. Devinney Homceopathic Mut. L. Ins. Co. v. Marshall 1444, 1447 Honevman v. Thomas 1672, 1673, ^ 1723 1696 55 1267, 1450 1529, 1532, 1534, 1566 V. Perry 44 Hook V. Donaldson 2, 29, 158 V. Pratt 277 Hoole V. Attorney-General 1559 Hooper V. Cummings 623, 632, 6 78, 696, 704, 705, 723, 728, 729 Hooneston Building Asso. v. Green ^ 1436 Hoot V. Spade 944 Hooten V. Comerford 338, 340 Hoover v. Wheeler 1591 Hope V. Blair 1394 V. Liddell 1554 Ixxxv TABLE OF CASES. Keferonoes are to Seotions. Hope V. Sawyer ll-'-!. 1124 V. Stone 8P4, !il)2, 1391 Hope F. Ins. Co. v. Cambrelling 1538 Hopewell Mills v. Taunton Sav. Bank 1008, 16(it), 1673, 1712, 1741, 1744, 1748 Hopkins v. Delanoy 1180 V. Gallatin Tnrnpike Co. 1051, 1082 V. Garrard 1575 V. Kent 484, 488 V. Lee 9 08 V. Smith 771, 808 V. Ward 121 Hopkins Academy v. Dickinson 483, 485 Hopkinson v. McKnight 449 Hopper V. Lovejoy 1117,1118 V. Parkinson 1415 Hoppin V. Doty 1516, 1564 Hoppiss V. Eskridge 121 Hoppock V. Johnson 1536 Hopson V. Fowlkes 1801 Horback v. Porter 1562 Hord v. Olivari 386 Horgan v. Bickerton 1979, 1998 Horn V. Miller 795 V. Thompson 302 Hornbeck v. Mut. Building Asso. 1165, 1188, 1189, 1447 V. Westbrook 528, 530, 548 Home V. Howell 1880 V. Smith 1717 V. Walton 943 Horner v. Chicago, M. & St. P. Ry. Co. 295, 649, 650, 718 V, Pleasants 471 V. Still well 376 Horrigan v. Rice 89 7 Horsburg v. Baker 731 Horsford v. Wright 969 Horsley i: Garth 1451, 1455, 1458 Horton v. Arnold 943 V. Bloedorn 85 V. Brown 359 V. Davis 261 V. Sledge 1991 Hosford V. Ballard 718 Hoskin v. Woodward 1670, 1759 Hoskins v. Brawn 1640 Hosleton r. Dickinson 407 Hosley V. Holmes 1240, 1267 Hotchkiss V. 01m stead 1220 Hotel Co. V. Wade 1054 Hottenstein v. Lerch 1513, 1564 Ixxxvi Houck V. Yates 4 7 7, 480, 484, 491 Houfes V. Schultze 1448, 1450, 1494, 1496 Hough r. Cook Co. Land Co. 175 V. Hill 1021 V. Hough 1792 Houghton r. Biirnham 1456 V. Uardenberg 1229 r. Steele 677 Hounshell v. Sams 99 Hourtienne v. Schnoor 1196, 1197, 1205, 1447 House ('. Fowle 44 V. Fuller 1836 Houseman v. Girard Loan Asso. 1532, 1534 Houser v. Belton 381, 414 Plouston V. Blackman 266, 288, 289, 295, 298 i: Blythe 1101 i: Houston 7, 14, 1410, 1497 V. Jordan 1357 V. McCluney 1901 V. Matthews 358 i\ Sneed 358, 359, 194 7 V. Spruance 622 V. Williamson 1802 Houston, &c. R. Co. ^'. Knapp 1925 Houstoun, In re 52 Houts u. Showalter 1628 Houx ('. Batteen 214, 368 Hovelman v. Kansas City, &c. R. Co. 175 Hovey v. Blanchard 1532 r. Chase 48, 54, 56 V. Elliott 1559 V. Hobson 23, 48, 49, 50, 52, 54, 67, 70, 71, 120 Howard r. Chase 1494, 1551, 1824 V. Fessenden 1691, 1695, 1697 V. Howard 1693 V. Huffman 1259 V. IngersoU 471, 488 V. Lincoln 559 V. Patrick 1309, 1234 V. Schmidt 1585 V. Shrewsbury 250 V. Throckmorton 1884 i\ Wadsworth 536 Howard Ins. Co. v. Halsey 1482, 1489, 1522, 1534, 1547, 1554 Howard Mut. Loan & Fund Asso. V. McLUyre 1380 Howe ('. Bass 381 V. Batchelder 1603, 1604, 1627 V. Harrinston 1033 TABLE OF CASES. References are to Sections. Howe V. Howe 54, 55, 60, 97, 1286 1849, 1876 V. Keeler 1051 V. Powell 1435 V. Saddler " 518 V. Thayer 1469, 1481 V. Walker 861, 864 V. Warnack 271 Howell V. Brewer 1406 V. Hanrick 1364 V. Howell 1411 V. Long Island R. Co. 691 V. M'Coy 1639 V. McCrie 1447 V. Merrill 388 V. Mills 1970 V. Moores 948 V. Ray 1101 V. Richards 858, 860 V. Saule 410 V. Schenck 1624, 1628 Howk V. Minnick 186 7 Hoxie ;•. Can- 1522, 1527, 1542 V. Finney 855, 857 Hoxsie V. Ellis 1969 Hoy V. Allen 1109, 1404, 1408 V. Bramhall 1482, 1489, 1517 Hoyle V. Plattsburgh & Montreal R. Co. 1729 V. Stowe 11, 13, 14, 20, 21, 64, 1936 Hoyt V. Dewey 85 V. Hoyt 1420, 1516 V. Jaques 1030 V. Ketcham 638, 696, 728 V. Kimball 623, 632, 635, 637, 641, 642, 678, 709, 1955 V. McLagan 1306 V. Schuyler 1395, 1396 V. Swar 7 V. Thompson 138, 1082 V. Tuers 1963 Hrouska v. Janke 1003, 1095 Hubback v. Ross 1311 Hubbard v. Allen 295, 303, 307, 310 V. Ascutney Mill-Dam Co. 1856 V. Bagshaw 1717, 1748 ?'. Beckwith 10(;3 V. Cummings 29, 158 V. Cox 1217, 1220, 1247 w. Dusy 387,437,438 I'. Greeley 1303, 1304, 1316, 1393 r. Gurney 1393 V. Hubbard 698, 699, 702, 708, 715, 718, 722 Hubbard v. Kansas City, &c. R. Co. 640 (;. Knous 316 ('. Norton 882, 979, 982 V. Smith 1563 r. Turner 1420 V. ^\'alker 1404 Hubbell V. E. Cambridge Five Cents Sav. Bank 1668, 1712, 1719, 1741 V. McCulloch 356, 357, 364, 366 V. Warren 743, 796, 797 Hubby V. Hubby 1245, 1824 Huber V. Huber 44 Huddleson v. Reynolds 351 Hudson's Case 1277, 1346 Hudson V. Coe 1862, 1870, 1873, 1917 V, Green Hill Seminary 176 V. Irwin 424, 432 V. Poindexter 1070, 1071 V. Putney 1861 V. Randolph 1456 V. Revett 1356 V. Steere 867 V. Warner 1520, 1554 Huebsch v. Scheel 295, 1486 Huebschmann v. McHenry 1691 Huey V. Huey 1234, 1236, 1256, 1267, 1269 V. Van Wie 1115, 1117 Huff V. Cunibei-land Val. Land Co. 921 V. McCauley 1600, 1603 V. McDonald 1874, 1884, 1890 V. Webb 1163, 1171 Huggins V. Ketchum 254 Hughes, Ex parte 161 Hughes V. Cawthorn 385 I'. Cohnan 1197 V. Debnam 1065 r. Easter 1222 V. Edwards 165, 6 74 V. Lane 1182, 1195 V. McDivitt 1137, 1177, 1180 V. Morris 1159, 1165, 1171, 1178 V. Prov. & W. R. Co. 454, 463, 484 V. Thistlewood 1321 V. Tong 1439 ?'. United States 1563 V. Watson 7 V. Westmoreland Coal Co. 338 Ixxxvii TABLE OF CASES. References are to Sections. Hughes r. Wilkinson 1129, 1133 c. Worlev 1498 Huoruenin r. Basely 99, 103 Hn'lirlv V. Scovil 1282 Ilulino- r. Abbott 1530 IInlin'1 1108 1961, 1973 244, 1871 828 1792, 1800 Kettle River R. Co. v. Eastern Ry. Co. 779, 780, 785, 787, 788, 793 Keve V. Paxton 1670, 1717 Key V. Davis 54, 64 V. Snow 140 V. Vattier 120 Keyes v. Bump 1555 Keys V. Test 1527, 1563 Keyser V. Evans 1875, 1877 Kickland v. Menasha Wooden Ware Co. 295, 296, 303 Kidd V. Venable 8 Kidder I'. Bork 903, 927 V. Rixford 1898 r. Stevens 1248 Kier v. Peterson 1597 Kilbee v. Myrick 64 Kilbourn V. Fury 1185,1213 Kilcrease v. Lum 1527 Kiley v. For see 1054 Kilfoy V. Powers 163 Kilgore v. Jordan 6, 10, 27 V. Powers 1070 Kille V. Ege 1288, 1448 Killian v. Andrews 1591 Killmer v. Wuchner 1906, 1982, 1997 Killmore v. Howlett 1606 Kilpatrick v. IMayor 624, 632, 635, 641, 649, 650 Kimball v. Blaisdell 892, 1487 V. Bryant 928, 929, 943, 946, 953, 974 V. Cuddy 48,101 V. Eaton 1009, 1012 V. Fenner 303, 310 V. Grand Lodge 893, 1706 V. Greig 1259 r. Johnson 1127,1444 V. Kenosha 448, 452, 468 V. Sattley 1618 V. Schoff 486 in Semple 894,896,1177, 1178 V. Sumner 1925, 1926, 1931 V. Walker 302, 303, 309 TABLE OF CASES. References are to Sections. Kimball v. Withington 50o Kimble c Esworthy 1409 Kimbrell v. Rogers 3ol Kime i;. Brooks 1014,1017 Kimmarle v. Houston & T. C Ry. Co. -1109 Kincaid v. Brittain 943, 954 V. Dormey 368, 369 V. Howe 221 V. McGowan 537, 538 V. Meadows 130 Kinealy v. St. Louis, &c. Ry. Co. 1 75 King y. Bangs 1^62 ° V. Bill 1559 V. Bishop 530 y. Brio-ham 368,374,381, 389 V. Bullock 1937 V. Burchell 669 V. Carmichael 1866, 1878, 1879 V. Crocheron 1259 V. Cummings 49 V. Fink 327, 337 V. Fraser 1464 V. Gilson 928, 943, 946, 953, 954, 956, 990 V. Haley 1525 V. Jones 929 j; Kerr 924, 936, 968 V. Kilbride 858, 860 V. King 484, 489 V. Little 322 V. Loncrnor 1009, 1012, 1014 ,;. McCully 1482, 1484 V. McVickar 1489 V. Mayor 1657 V. Merk 919, 921 V. Mitchell 364 V. Norfolk & W. R. Co. 388, 467, 553 r. Parker 593 V. Paulk 1406, 1408 V. Portis 1406, 1458, 1501 V. Pyle 968 V. Rea 602, 609, 614 V. Rowan 1836, 1840, 1850 V. Sears 120 V. Smith 470 V. Wells 521 V. AVight 793, 799 r. Wilcomb 1613 V. Young 476 King's Chapel r. Pelham 723 Kind's County Fire Ins. Co. v. Stevens 454, 462, 463 Kincrdon v. Nottle 929 Kingman v. Perkins H Kino-sbury v. Burnside 1267, 1276, 1289, 1292, 1301 V. Milner Kingsland v. Chittenden Kingsley v. Hillside V. Holbrook V. McFarland Kingston v. Pickins Kinnaman v. Pyle Kinnear v. Lowell Kinnebrew v. Kinnebrew Kinney v. Dexter V. Farnsworth i\ ]\Iathews V. Miller V. Shelby ville V. Slattery V. Watts Kinsey v. Bailey V. Satterthwaite Kinsley v. Abbott Kinsman v. Kinsman V. Loomis Kip V. Norton Kipp V. Merselis Kirch V. Davies Kircher v. Schalk Kirchline r. Kirchline Kirchman v. Lapp Kirk r. Furgerson V. King V. Kirk Kirkaldie v. Larrabee Kirkendall v. Mitchell Kirkland v. Cox V. Way Kirkpatrick v. Caldwell V. Peshine 968 391, 488 538 1086, 1600, 1603, 1627 1695, 1696 326, 335, 337, 338, 339, 342 42 855 . 279, 292, 295, 1230 40, 44 380 233, 580 1553 704 1862, 1878,1879, 1880 970, 981 1737, 1740 326, 358 1824 1619 256, 1129 354, 358, 364 1489 335, 1690 1760 1111 1703 613 629, 649 650 1487 825 593 400 1380, 1381 780, 781, 784 t'. Ward 1499 V. Yates Ice Co. 496, 497 Kirk wood v. Domnau 1801 Kirsch V. Tozier 1550 Kiser v. Heuston 1451, 1472 Kister v. Reeser 503, 504, 505, 548 1668, 17-21, 1744 1551 29. 30 1855, 1894 97 Kisterbock v. Lanning Kitchell V. Mudgett Kitchen V. Lee Kites r. Church Kithcart v. Larimore xcvii TABLE OF CASES. References are to Sections. KittoU r. .TiMisson 341 Knoiiir ('. Thomj^son 1547 Kitteritiiio r. Cha[)man 1527, 1528 Knowlden v. Li'a\'itt 595 Kittle i\ PtVilY.T 449, 450 Knowles i\ Harris 1890 c. St. John 1087 V. Kennedy 954, 956 V. Van Dyck 1409 V. ]\k'Cauiley 1196, 1212 Kittredge r. Proprietors 1878, 1879, V. Torbitt 323, 337 1880 Knowlson v. Fleming 526 r. Woods 1612 , 1621, 1708 Knowlton V. Smith 367 Kleeb r. Bard 1359 V. Walker 1462, 1466 Kleppner v. Laverty 602 Knox V. Flack 4 Kline v. Bvebc 2, 27, 31, 158 V. Haralson 1600 V. Jacobs 1887, 189S V. Haug 52 V. Ragland 1792 V. Hunt 285 V. Raymond 1342 V. Jenks 127, 128 Klingensniitli v. Ground 490, 491 V. McFarren 1392 Klinger r. Leniler 1529 V. Pickering 4 79 Kloess V. Katt 1667, 1669, 1721 V. Silloway 1531 Klohs V. Klobs 52, 53, 77 V. Singmaster 108 Klopp V. Moore 830 Knox Co. ('. Brown 1437, 1547 Klose V. Hillenbrand 99, 115 Knudsen v. Oraanson 492 Kluse V. Sparks 1619, 1620, 1624 Koch V. Roth 1515 Knadler v. Sharp 891, 974 Koconrck v. Marak 84 , 1196, 1198 Knaggs V. Green 31 Koehler v. Black River Falls Iron V. Mastia 1335 Co. 1082, 1083 Knapp V. Bailey 1395, 1510, 1511, V. Wilson 88 1512 1544, 1563 Koelle V. Knecht 548 V. Hall 744, 746 Koenig v. Branson 896 i^ Hyde 85, 86 Koenigheim v. Miles 518 V. Jones 1419 V. Sherwood 365 V. Maltby 1331 Koenigs v. Jung 431 V. Smith 1026 Koepsel ?'. Allen 339 i;. Woolverton 503 Koerper v. St. Paul & N. P. Ry. Kneeland v. Van Valkenburgh 449, Co. 1458 461, 463 Koevenig r. Schmitz 1496, 1587 Knell V. Green St. Buildin g Asso. Kohler i\ Kleppinger 448 1402, 1403, 1404 V. Wells, &c. Co. 87, 89 Knepper v. Kurtz 914, 921 Kohn (;. McHatton 1372 Knight V. Alabama Mid. Ry. Co. 690 Koke V. Balken 1836 V. Bowyer 1566, 1570 Koltenbrock r. Cracraft 1212 V. Cole 249 Konrad r. Zimmerman 99, 115 V. Coleman 369 Koon V. Tramel 285, 1390, 139.3, V. Crockford 1002 1575, 1578 V. Elliott 437 Kopp V. Gunther 98 r. Indiana Coal Co 537, 538 Korbe v. Barbour 1698 V. Leary 1109, 1153 Kortz V. Carpenter 915 V. Mains 528 Kostendader v. Pierce 944 V. Thayer 990, 1487 Kountz V. Davis 24 V. U. S. Land Asso . 471,472, Kramer v. Carter 903, 905, 906, 473 907 J'. Wilder 480, 488 V. Goodlander 3 76, 738 Knighton v. Smith 11. ->5 Kranert l\ Simons 1391 Knolls V. Bariihart 1223, 1292. Kraut V. Crawford 485, 491, 492 1294, 1844, 1835, 1836, 1837, Krebaum v. Cordell 1289, 1301 1921 Krehl ;;. Burrell 823 Knopf V. Hansen 1302, 1314, 1327 Kreuger r. Walker 1173 Knott V. Jefferson St. Fen y Co. 460 Kribl)s r. Alford 1734 Knotts V. Hydrick 548,559,1611 Krider v. La£ferty 1568, 1573 XCviii TABLE OF CASES. References are to Sections. Krider v. Milner Krieger r. Crocker Kroiienberger v. Hoffner Krouskop V. Shontz Krueger c. Walker Kriiuibhaar v. Griffiths Kruse V. Wilson Kuechler v. Wilson Kuhn V. Farnsworth V. Freeman Kuhns V. Fennell Knhtman, Ex parte Kill! V. KuU Kumler c. Ferguson Kurtz V. Hibner Kutz V. McCune Kuykendall r. McDonald Kyle V. Kavanagh V. McKenzie V. Perdue V. Roberts V. Rhodes V. Thompson V. Ward 354, 368, 369 1182, 1185 340, 381, 432 1340 1216; 1563 107 326 433, 434, 440 457, 542 912 364 1229 163, 165 303, 1014 1981, 1997 884, 885 275 828, 1394 838 1232 245 323, 331 482, 1483 1517 Labadie v. Laberee v. Hewitt 1954 Carleton 266, 627, 632, 633, 641, 643, 654, 678 La Bourgeoise v. McNamara 1195 Lacassagne v. Chapuis 1559 Lacedotte v. Duralde 1480 Lacey. Ex parte 162 Lacey V. Davis 1846 V. Marnan 949 Lackey v. Lubke 254 Lacustrine Fer. Co. v. Lake Guano & F. Co. 1529 Lacy I'. Overton 1940 Pixler 6, 24, 25, 26, 31, 33 771. 779, 795 1423, 1424 882, 930, 937 491 Ladies' Friend Society v. Hal- stead 391, 475, 476, 479, 488 Ladue, Matter of 448, 449, 454 La Farge Fire Ins. Co. v. Bell 1499, 1543 Lnfavour v. Homan 1872 Lafavette Building, &c. Asso. v. Erb 1410 Lafferty v. Milligan 852, 872 Laflin v. Griffiths 1667, 1721, 1762, 1764 La From hois v. Jackson 1866 Lagger i-. Mut. Union L. Asso. 1907 Ladd V. Boston V. Campbell V. Xoyes V. Osborne Lagoria v. Dozier Lagow V. Glover Lahr's Appeal Laidley v. Aikin V. Knight V. Land Co. Laird v. Scott Lake v. Doud V. Gray V. Jarrett v. Shumate Lake Erie & W. R. Co. Lee Priest R. Co. 1875 361 1403 1409, 1414 1188 1187, 1188 1182 1478 271 1955 1489 958 742 785,816 Zie- 653, 708 885 1436, 1472 492 960 1415, 1497 1788 844, 882,910, 939, 1934 6 74 1509, 1511, 1563 322 485, 488, 490 .•)05 894 1067 1919 921, 948, 968, 982 V. Newman 1513, 1524 Lamberton ;;. Merchants' Bank 1406 Lambertville Nat. Bank v. Boss 1402, 1403 Lamm v. Railway Co. 448 Lammers v. Nissen 485, 492 Lamont v. Cheshire 1561 V. Stimson 1513 L'Amoureaux r. Crosby 53 Lamoreux v. Huntley 1563 L'Amoureux c. Vandenburgh 1581 Lampe i'. Kennedy 1380 Lampman v. Milks 1644, 1650, 1655 Lamprey v. State 481, 482, 484, 492, 496 Lamy v. Burr 1031 Lancaster v. Amsterdam Imp. Co. 181,183, 192 V. Ayers 385 V. Blaney 1220, 1233, 1242, 1243, 1267, 1269, 1270, 1276 V. Du Hadway 1989 xcix Lake Erie & W. barth Lallande v. Wentz Lally V. Holland V. Rossman Lamb v. Buker I'. Cannon V. Clark V. Danforth V. Miller V. Pierce V. Reaston V. Ricketts V. Tucker V. Wakefield Lambden v. Sharp Lambert v. Blumenthal V. Estes TABLE OF CASES. References are to Sections. Land r. Coffmnn 1 7'") r. Sniitli 1955 Land Asso. r. Scholler 245 Land Co. v. Hill 1547 r. Saunders 326, 381, 3s8 Land & Kiver Imp. Co. v. Bardon 1481 Landa v. Obert 85, 8G, 87 Landers v. Bolton 1109, 1110, 1195, l.")(i6 Landes v. Brant 1563 Landon v. Brown 1307, 1320 Landt V. Major .S49 Lane r. Collier 1415 V. Craddock 19(>4 V. Davis 1585 V. Dobyns 192r) V. Dolick 316, 1194 V. Ducliac 1451 r. Fnry 929, 974, 984, 986 V. Hitchcock 17G1 V. King 1628, 1630, 1632 V. Lane 660 V. Logue 285, 1392 V. Newdigate 821 V. Nickerson 1495 V. Richardson 962, 967 V. Taylor 1898 V. Thompson 324,326, 416 V. Utz 602, 605, 609 V. Woodruff 935 Langr. Smith 1217, 1233, 1267, 1269, 1273 V. Waring 1831 V. Whidden 12 Langdon v. Buchanan 1668, 1712 V. Clayson 29, 30 V. Ingram 667 V. Mayor 471, 503, 543 Langley v. Chapin 638, 694, 730 Langmaid v. Reed 824 Langton v. Marshall 1 189 Lanham v. Wilson 584 Lankin v. Terwilliger 1659 Lanphere y. Lowe 1699 Lansing v. Smith 471 Lansing L-on & Engine Works v. Walker 1(583, 1720 Lanterman v. Williams 1942, 1945 Lapeyre v. Paul 18(i6 Lapham r. Norton 1693, 1696, 16!)8 Lapish /'. Bangor Bank 476, 484 Lapowski v. Smith 1259 Large's Case fjC2, 667 Large v. Penn 3()8 Larman v. Huey 1850, 1866, 1878 Larson v. Cook 944 Larwoll r. Hanover Sav. Fund Soc. 144 Lash V. Edgerton 1491 V. Lash 1801 La Societe Fran^aise v. Weidmann 1831 Lassell r. Reed 1708 Lassitcr v. Davis 289, 291 j! Latham t>. Blakely 17181 V. McCann 903 " V. Udell 112, 1234' Lathers v. Keogh 871 ' La Tourette v. Decker 1862 Lathrop v. Blake 1731 V. Commercial Bank 169, 170 Lauchner v. Rex 1619, 1624 Landman v. Ingram 861 Laughlin v. Calumet, &c. Dock Co. 1292 V. Fream 1004, 1185, 1190 V. Hibben 56 V. Tips 1396, 1436 Laughton v. Harden 289, 290 Laurens w. Jenney 166,167 Laval V. Staffel 662 Lavalle v. Strobel 1942, 1947 Lavender v. Holmes 1395 Lavenson v. Standard Soap Co. 1668, 1714, 1717, 1718, 1721 Laverty v. Moore 358 Lavery v. Purssell 1605 Law V. Hempstead 324 V. Long 2, 3, 8, 17, 33 V. Patterson 1865, 1872, 1880 Lawe V. Hyde 632, 650 Lawless v. Collier 943, 946, 962 Lawrence v. Ballon 404 V. Clark 1390 V. Conklin 1559 V. Du Bois 1578 V. Farley 1292 V. Fletcher 238 V. Fox 865 V. Kemp 1 703 V. McArter 4, 1023 V. McCalmont 307 V. Montgomery 890, 928 V. Owens 1392 V. Palmer 335 V. Senter 932 V. Singleton 660, 662 V. Smith 1600 V. Stratton 1262, 1510 V. Taylor 1021 V. Tennant 375, 376 V. Tucker 285 V. Webster 1921 TABLE OF CASES. References are to Sections, Lawson v. Cunningham 1866 Lawton v. Bufkingham 295 V. Gordon 1455, 1513 V. Howe 968 V. Lawton 1666 V. Sager 1303, 1313 Lay V. Mottraiii 262 Layard v. Maud 1583 Lay ton v. New York Land Co. 440 Lazell V. Lazell 303 Lea V. Polk County Copper Co. 1563 Leach v. Ansbacher 1565 V. Beattie 1482 V. Hall 1856, 1878 V. Leach 646, 729 V. Noyes 39 V. Leacox v. Griffith 31 Leake v. Hayes 1902, 1906, 1991, 1997 V. Watson 602 Learned v. Cutler 319 V. Riley 1127, 1129 V. Tritch 1508 Leas V. Garverich 1517 Leasure v. Uniop Mut. L. Ins. Co. 186, 187, 190 Leaver v. Gauss 527, 1230, 1233 Leavitt v. Files 68 V. Lamprey 316, 319 V. Towle 542 Leazure v. Hillegas 173, 175, ISO, 190 Lebanon Sav. Bank v. Hollenbeck 183, 186, 1380 Le Barron v. Babcock 1887, 1889 Le Bourgeoise v. Blank 1942, 1947 Leckey v. Cunningham 77 Le Clert v. Oullahan 1402 Lecompte v. Lueders 364 Lecoiiite v. Toudozue 366 Leddy v. Enos 839, 852, 869, 893, 906 Ledger Building Asso. v. Cook 1447 Ledyard r. Phillips 1628 V. Ten Eyck 496, 497 Lee V. Adkins 1071 V. Alexander 1338 V. Bermingham 1408, 1451, 1472, 1480 V. Bumgardner 538, 1596 V. Cato 1529, 1531 V. Fox 1836, 1848, 1852 V. Lee 462 r. Munroe - 1581 V. Newland 1363 V. Richmond 1223, 1252 V. Risdon 1613 Lee V. Salinas 1559 V. Turner 1925, 1928 Lee Chuck c. Quan Wo Chong 1937 Leebrick r. Stahle 1563 Leech v. Bonsall 1420 V. Leech 1346 V. Schweder 823 Lefavour v. Homan 1865 Lefebvre r. Dutruit 84, 90, 92, Uj, 1447 Leferve's Appeal 1,541 Lefferson v. Dallas 1571 Leffingwell v. Elliott 962, 983, 986 Le Franc v. Richmond 353, 1060, 1063, 1066, 1073 Leftwich v. Neal 1159, 1190, 1U)5, 1204, 1207, l.>12 Le Gendre v. Byrnes lOl V. Goodridge 98, 109, 113 Leger v. Doyle 1464 Legg V. Leyman 86 Leggate v. Clark 54 Leggett V. Barrett 249 V. Bullock 1380, 1501 V. New Jersey M. & B, Co. 1082 V. N. J. Manuf. Co. 1082 Lego r. Medley 338, 402, 520 Lehigh Coal & N. Co. v. Early 6 71, 678, 699, 7U4, 705 Lehman r. Godberry 1588 c. Taliassee Manuf. Co. 144 Lehndorf r. Cope 155, 609, 613 Leiby v. Wolf 1482, 1483, 1489 Leicester v. Biggs 564 Leifchild's Case 297 Leigh V. Dickeson 1S95 Leighton r. Orr 116 Leiman's Estate 1556 Leinenkugel v. Kehl 1085, 1087 Leitch V. Little 1S57 V. Wells 1560 Leland v. Garset 1694 V. Isenbeck 1396 V. Stone 861, 945, 951 Lemacks v. Glover 610 Lemay v. Johnson 1350 Lembeck v. Andrews 498 i\ Nye 4 96, 497 Lemert, hi Re 14<»3 Le Mesnagcr v. Hamilton 1205, 1206 Lemingtoii v. Stevens 1114 Lcmmon r. Beeman 2, 33 c. Hartsook 363, 372, 375 Lemon v. Graham 568, 575, 58 7, 589 r. Jenkins 50 ci TABLE OF CASES. Refereiioos are to Sections. Lemon v. Kailwav Co. 1 1'> V. Staats ' M-"''! Le Neve r. he Neve 14!»9, 1504 L'Engle r. Reed 1111, 1183, 1191 Leiiheart r. Ream 24 Lenoir c. Valley River M. Co. 1371, 1937 Lente v. Clark 346 Leon Land Co. /•. Dunlap 1119 Leonard i'. Adams 879 r. Bosworth 133 V. Burr 630 V. Clough 1700 r. Leonard 52 V. Smith 67 7 V. Stickney 1673, 1702 I'. White 1637 Leonardson v. Hulin 49, 69 Leonis r. Lazzarovich 1182 Leppoc r. Nat. Union Bank 1288, 1289, 1290, 1292 Le Roy V. Beard 1033 V. Piatt 1639, 1652 Leroy v. Jamison 1229 Le Saulnier v. Loew 1234, 1235, 12 74 Lesley v. Johnson 1521 Leslie v. Hinson 1451 V. Merrick 1009, 1012 Lessly r. Bowie 867, 892, 953, 955, 967 Lester r. Frazer 1 1 V. Georgia, &c. Ry. Co. 690 Letcher v. Bates 1338 Letson i'. Reed 1524 Lett V. Brown 955 Levengood v. Bailey 1309 Levering v. Mayor 1082 Levi V. Karrick 1908 Levinz v. Will 1380 Levy V. Cox 121, 128 V. Maddux 358, 359, 366 V. Mentz 1372 V. Yerga 364 Lewars i\ Weaver 1447 Lewis' Appeal 1803 Lewis, In re 1801 Lewis i\ Baird 1108, 1376, 1435, 1458 V. Bannister 94 V. Beattie 453 r. Cole 1526 r. Cook 933 V. Coxe 1028 V. Curry 1125 V- Day 305 V. Harris 974 cii i Lewis r. Hinman 1451, 1472 V. Johnson 1529 ('. Jones 1 708 r. Keeling 471 r. Kirk 1420 r. Lewis 381, 389, 944 V. Oakley 381 V. Overby 1068, 1069, 1070, 1071 V. Pavn 1338, 1346, 134f> V. Phillips 1527, 1528 V. Prather 1318, 13-25 V. Roper Lumber Co. 501 V. Sellick 1981 V. Terrell 1396, 1881 V. Ward 1846 V. Waters 37 V. Watson 1014, 1248. 1292 Liberty v. Burns 341, 437 Lick V. O'Donnell 346, 404 Lickmon v. Harding 1196, 1197, 1198, 1204, 1206 Liddon V. Hartwell 364 Liddy v. Kennedy 715 Liebraiid v. Otto 730 Liford's Case 1702 Lighthall v. Moore 79, 84 Lignoski v. Crooker 1451, 1472 Likins v. Likins 101 Liies V. Ratehford 331 Lillard v. Ruckers 223 Lillianskyoldt v. Goss 1862 Lillibridge v. Lackawanna Coal Co. 537, 1592 Liilie V. Dunbar KiOO V. Hickman 125 Lilly V. Menke 1966, 1986 Lincoln v. Buckmaster 68 t\ Davis 501 V. Edgecomb 384, 390 V. McLaughlin 381 V. Purcell 1552 V. Shaw 449 V. Thompson 1145, 1172 V. Wilder 424 V. Wright 1578 Lincoln & K. Bank v. Drummond 722 Lincoln Building & Saving Asso. V. Hass 14 79 Lindauer v. Younglove 1547 Lindley v. Dakin 868 V. Groff 1314, 1324, 1866 V. Kelley 1627 V. Martindale 1581 V. Smith 1136, 1178,1183, 1194 TABLE OF CASES. References are to Sections. Lindsay y. Eastwood 869 V. Freeman 1396 V. Hoke 244 V. Jaffray 244 V. Lindsay 1220, 1224, 1267 V. Springer 354, 358 V. State 1069 V. Winona & St. P. R. Co. 1615 Lindsey r. Lindsey 48, 49, 705, 708, 730 V. Parker 986 V. Veasy 956 Lindsley v. Lamb 1328 Line v. Blizzard 84, 90 Lineberger v. Tidwell 1152, 1184 Link V. Page 1009, 1021 Linker v. Benson 1872, 1873 V. Long 1261 Linn v. Barkey 828 V. Patton 1185, 1195 Linnartz v. McCulloch 404, 1942 Linney v. Wood 337, 338, 359, 381, 383 Linscott V. Fernald 340 Lin^ley v. Brown 1018, 1196 Linthicmii v. Ray 1636 Linton v. Allen 858, 894 V. Brown 1240, 1241, 1242, 1247, 1288 V. Crosby 44 Linzee V. Mixer 756, 757, 771, 773, 814, 817 Lipp V. Land Syndicate 1563 Lipscomb r. McClellan 310 V. Underwood 401 Lipsky V. Borgmann 1694 Lipse V. Spear 1547 Lister v. Pickford 1637 Litchfield v. Cudworth 1814 V. Ferguson 476, 4 79 V. Scituate 475,476,479 Literary Fund v. Clark 431 Litligow V. Kavenagh 36 Little V. Bishop 138 V. Dodge 1146, 1170, 1182, 1190 V. Gibson 1248 V. Herndon 1359, 1363 V. Megfjuicr 13 71 V. Paddleford 829 V. Weatherford 1179 V. White 1097, 1101 V. Willfoid 1697 Littlefield v. Mott 516, 528, 670, 723 V. Pinkham 929 Littleham v. St. Leonards 1346 Littlejohn v. Barnes 1872 Littleton v. Giddings 1521, 1532 Lively v. Rice 85& Liverpool Wharf ;;. Prescott 36 7 Livesey v. Brown 1466 Livingston r. Hudson 1109 V. Kettelle 1159, 1446 V. Livingston 296 V. McDonald 1143, 1144 V. New York 449, 450 V. Peru Iron Co. 123 V. Prose us 140 V. Stickles 669, 731 V. Tompkins 731 Llawelly Ry. Co. v. London & N. W. Ry. Co. 297 Llewellyn r. Earl of Jersey 326, 398 Lloyd V. Bennett 1309 r. Conover 1940 V. Fulton 289 V. Loudon, &c. Ry. Co. 805 V. Lynch 307, 1836, 1846, 1852 V. Quimby 968, 975 V. Taylor 36 V. Tomkies 893 Loan V. Gregg 1703 Lochte V. Austin 321, 326, 339 Lockart v. Roberts 1328 Locke V. White 896, 992 Locker v. Riley 1556 Lockwood V. Bassett 1328, 1337 V. Bates 285, 1560 V. Gilson 830 V. Lockwood 1703 V. New York & N. H. R. Co. 4 72 V. Sturdevant 842, 846, 928 Lodge V. Barnett 364, 381 V. Hamilton 1797 V. Lee 326, 420 V. Patterson 1866, 1868, 1872 Loftin V. Murchison 233 Logan V. Gardner 2, 7, 25 V. Moulder 928, 930, 943, 968, 970 V. Steele 1014, 1021 V. Williams 1165, 1215 Logsdon V. Newton 1267, 1314 Lomax v. Le (irand 1515 Lombard v. Culbertson 1451 I'. Morse 12 Lomersou v. Johnston 88 London & N. W. Ry. Co. v. Gar- nett 768 ciii TABLE OF CASES. References are to Sections. London & S. W. Rv. Co. v. (ionun 737, 780, 781 Loniion & Westminster Loan & Di-^count Co. 1769 London, Chatham, &c. R. Co. V. Bnll 782 London v. Ixiggs 534 Long's Appeal 1967 Long V. Barnes 1792, 1802 V. Cockcrn 1719, 1720 V. Colton 375, 376 V. Crews 1128, 1133 V. Crosson 43 V. Dollarhide 1482, 1942 V. Fewer 542 V. Joplin, M. & S. Co. 1073 V. Lanojsdale 1563 V. Long 391, 1071 V. McConnell 625 V. Moler 861, 869, 882 V. Neville 1559 V. Ramsay 1068 1069, 1071 V. Seavers 1627 V. Sinclair 944, 974 V. Stapp 1880 V. AVeller 1517 V. Williams 17, 19 V. Woodman 303 Long Beach Land Co. v. Richard- son 472 Longbottom v. Berry 1712, 1715, 1749 Longfellow v. Quimby 1929 Longoria v. Sliaeffer 433 Longstaff v. Meagoe 1667, 1702 Lonsdale Co. v. Moies 510 Lookout Bank v. Noe 1407 Loomis V. Bedel 914 919, 920, 974 V. Brush 44 V. Jackson 326 V. Pingree 1239 V. Riley 1559, 1967 V. Spencer 68 Looncy v. Adamson 1182 Lord V. Doylo 1529 V. Folmer 1086, 1110 V. Sherman 1029 V. Yonkers Fuel G as Co. 150 Lord Advocate v. Hamilton 4 70 Loree v. Abner 1121 Lorick v. McCreery 575, 587 Lorillard v. Clyde " 865 Loring v. Eliot 601, 602, 603 V. Groomer 1548 V. Otis 449 V. Palmer 594. Lorman ;•. Benson 480, 484 Los Angeles Cera. Asso. v. Los Angeles 678 Losey v. Bond 7, 14, 21 V. Simpson 1371, 1482, 1486, 1487, 1506, 1527, 1528, 1532, 1537, 1557, ]5(;3, 1571 Lothrop V. Arnold 1925, 192.S, 1929 ('. Foster 316, 319 V. Snell 892 Lott V. Kaiser 1303 V. Wilson 1793 Lotz V. Reading Iron Co. 448, 502 Loubatt i\ Kipp 1303, 1324 Loud ;,'. Darling 119, 121, 125 Loudon r. Blythe 1190, 1196, 1197, 1198, 1199 V. Todd 1240 Lough r. Machlin 463 Loughridge c. Bowland 1407, 1513, 1517, 1522, 1564 Louisville & N. R. Co. v. Boykin 1090 Louisville & N. R. Co. v. Coving- ton 625, 691, 694, 1\\, 718 Louisville & N. R. Co. v. Koelle 795 Louisville & N, R. Co. r. Stephens 37 Louisville, New Albany, &c. Ry. Co. r. Sparks 958 Louisville, New Albany, &c. Ry. Co. r. Sumner 958 Louisville, St. L. & T. Ry. Co. r. Neafus 296, 948 Louk V. Woods 523 Lounsbury v. Norton 1508, 1516 Love I'. Bell 538 V. Breedlove 1575 V. Harbin 1101, 1344 V. Morrill 374 V. Sierra Nev., L. W. & M. Co. 1040, 1049 V. Smathers 1838 V. State ' 81 V. Taylor 285, 1185, 1192, 1392 Lovejoy v. Gaskill 402 V. Lovett 3:^6, 334, 3'38, 364, 410,413 r. Richardson 1014, lOlS, 1019 V. Tieljen 381 Lovelace's Case 1067 Loveland v. Loveland 1234, 1248, 1249 Lovett v. Gillender 667 V. Steam Sawmill Asso. 1082, 1117 Lovingrston ik St. Clair 485 CIV TABLE OF CASES, References are to Sections, Low r. Holmes 1967 V. Knowlton 476 ??. Muinford 1925 V. Pratt 1560 V. Settle 521 r. Tibbetts 448, 461, 490 Lowber r. Kelly 133 Lowd V. Brigham 1228 Lowell V. Robinson 490, 495 r. Wren 1205. 1447 Lowell Inst. Sav. v Lowell 796, 798 Lowenberg w. Bernd 1697, 1698 Lowery v. Drew 245 r. Rowland 1928 Lowndes v. Board 472 Lowrance v. Robertson 968, 972 Lowry v. Harris 1371, 1445 V. Tilleny 1866 Lowther v. Carlfon 1529 Loyless v. Blackshear 233 Lozear v. Shields 48, 50 Lozier v. N. Y. Cent. R. Co. 448 Lubbering v. Kohlbrecher 1338, 1359 Lucas r. Clafflin 1453 V. Cobbs 1141 )'. King 1963 V. Larkin 1142, 1152 V. Wilcox 944 Lucas Co. V. Hunt 658 Luce V. Carley 490 Luch's Appeal 1460,1462, 1466 Luckett V. Scruggs 381 Lucy, Estate of 1900, 1986, 1994 Ludlow V. Carr 414 V. Clinton Line R. Co. 1406 V. Kidd 1559 V. New York & H. R. Co. 620, 678, 699, 704, 705, 707, 708 V. O'Neill 38, 184 Ludwell I'. Newman 893 Luen ;;. Wilson 121 Luff V. Lord 162 Luffboroiigh v. Parker 1132, 1165, 1179 Lufkin V. Curtis 316, 319, 1004 V. Haskell 479 Luhrs V. Eimer 168 Lumbard v. Aldrich 182, 186, 323, 1022 Lumpkin v. Adams 1 506 V. Muncey 1457, 1459 V. Wilson 1030 Lunsford /•. La Motte Lead Co. 1067 Lnnt V. Holland 480, 486, 490 Luntz i\ Greve 42 Lusk V. McNamer 1529 Lutcher & Moore Lumber Co. v. Hart 415, 431 Lutes V. Reed 1224 Lux V. Haggin 481 Luzenburg v. Bexar Bldg. Asso. 1 292 Lyde V. Russell 1702 Lydiard v. Chute 1109, 1111 Lydick v. Baltimore & Ohio R. "Co. 821, 942 Lyford V. North Pac, C. R. Co. 785 Lyle V. Ducomb 1434, 1591 r. Palmer 1712, 1725 V. Richards 338, 341, 613 Lyles V. Lescher 230 Lyman v. Babcock 338 V. Boston & M. R. Co, 1933 V. Gedney 244 V. Hale 1614 V. Russell 1568 V. Smith 1585 Lynch v. Allen 485, 495 V. Doran 109, 111 V. Hancock 1527 V. Livingston 206, 207, 313, 1123, 1124, 1127, 1128, 1156, 1444, 1447 V. Richter 1035 Lynde v. Budd 14, 29 V. Hough 678, 6 79 v. Rowe 1748, 176 7 Lynne Regis, Case of 235, 239 Lyon ('. Gleason 13i)\ cv TABLE OF CASES. References are to Sections. ^larintosh v. Tliiirston 1410, 1497 Mai-k V. Chani])i()n G02, (i04 Ahukall r. Mackall lOt), 110 V. Rifliarils 51)3 Maokay v. Bloodiiood 106 7 V. Easloii 1013 Mackenzie r. Childers 772, 773, 776, 780 V. Jackson 1124, 1155, llo6 Mackey v. Collins 915 V. Harmon 799, 877, 958 JNIacleay, In re 668 ]\I;K-lin ('. Haywood 44 jMacIoon v. Smith 89 Madden v. Floyd 1004 V. Tucker 413 Maddox v. Arp 1506 I'. F'enner 389 V. Goddard 1923 V. Gray 1217, 1237 V. Simmons 48 Madison, &c. Plank Road Co. v. Stevens 1303, 1304 Madore's Appeal 735 Magee v. Beatty 1451 V. Magee 1415 V. Mellon 831 V. Merriman 1485 V. Welsh 7 Magill V. Hinsdale 1049 Magness v. Arnold 1171 Magniac r. Thompson 281 Magnolia, The, v. Marshall 480 Magoun v. Lapham 423, 424 Maguire v. Park 1668, 1673, 1702, 1712, 1714, 1719 V. Sturtevant 389 Magwire v. Riggin 929 Maiion V. Cooley 1947 Mahoney v. Mahoney 1981 V. Middleton 1504 Maier v. Joslin 350, 404 Main v. Alexander 1406, 1442 V. Killinger 358 V. Schwarzwaelder 1667, 1702 Maine v. Cumston 634, 799 Mainwarring v. Templeman 1400 Major V. Bukley 5G2 V. Dunnavant 944 V. Rice 359 V. State 1144 V. Todd 1222 V. Watson 341 Majoribanks v. Hovenden 1538 Majors v. Cowell 1560 Makepeace v. Bancroft 359, 382, 410 cvi Maker v. Lazell 826, 411 Maloom v. Rogers 1935 Malcomson c. O'Dea 470 Malin v. Malin 1338 Mallett V. Page 1291 r. Simpson 175 Mallory's Case 577 Mallory r. Stodder 1451, 1464, 1531 Malloy V. Bruden 1212 Manasses v. Dent 1521 Manaudas v. Mann 1109, 1499, 1511, 1563 Manchester v. Hough 36 Manderbach v. Bethany Orphans' Home 786 Mandlebaum v. McDonell 660, 662 Manderville v. Solomon 1836, 1852 Maney v. Porter 833 Mangold v. Barlow 1451, 1472, 1480 INIangum >:. Piester 578 Manhattan Co. v. Evertson 1390 Manistee Manuf. Co. v, Cogswell 306, 443 Manly v. Pettee 1502, 1506, 1942, 1945 Mann r. Best 1397 V. Falcon 1466 V. Mathews 945, 981 V. Pearson 398 i\ Stephens 775, 777, 780, 781 Manners r. Manners 1963 Manning r. Johnson 2, 31, 33, 758, 815, 823 V. McChire 285, 1390 V. Ogden 1702, 1703 V. Pippen 40, 295 V. Smith 164 2, 1660 Mansfield v. Dyer 828, 1394, 1395 V. Gordon 11 V. Gregory 1404, 1408 V. McGinniss 1862 V. Watson 74, 76, 78 Mansur r. Blake 495 Manufacturers' N. Gas Co. r. Doug- lass 1213, 1214 Man waring v. Jenison 1668, 1679, 1084 V. Powell 1792, 1803 V. Tabor 577, 016 Mapes V. Newman 100 7 Maphis *'. Pegram 1135 Maple u. Stevenson 368,1866 Maples V. Millon 161.3, 1 765 Mara v. Pierce 1511, 1563 IVlarahk' v. Mayer 1087 jNIaraman /•. Maraman 44 TABLE OF CASES. References are to Sections. Marbur<^ v. Cole 1792, 1797, 1800, 1802 Marbury v. Eblen 1549 i;. Madison 1229, 1377 V. Tbornton 890, 903, 907, 915, 930, 932," 937 Marcb v. Huyter 1952 Marchbanks i: Banks 1528 Marcy f. Dunlap 1338, 13.')0 V. Marcy 1865, 1866, 1878 V. Stone 1862 Marden v. Cbase 268 Mardes r. Meyers 317, 331 Marine Bank v. International Bank 1585, 1586 Mariposa Co. v. Bowman 89 Maris v. lies 862, 880 Markbam v. Parker 1563 Markland v. Crump 933 Markley v. Swartzlander 1101 Markoe r. Wakeman 197 7 Marks V. Marks 711 V. Sewall 1825 Marlin v. Kosmyroski 1937 Marmaduke v. Tennant 1965 Marmon v. Marmon 49, 99 Marr c. Given 1029 Marsb i'. Austin 1240 r. Burt 448, 454 V. Chestnut 374 V. Fish 888, 896 V. Mitcbell 381, 431, 432, 1185, 1196 V. Nelson 1566 V. Thompson 967 Marshall v. Bacbeldor 1680 V. Conrad K^S V. Dunham 1524, 1525 V. Ferguson 1620 V. Fisher 341 V. Fisk 267, 1259 V. Green 1605 V. Gridley 336, 338 r. Marshall 48,111,1966, 1969 V. Morris 280 V. Palmer 1936 );. Roberts 1394, 1395 V. Shafter 1«71 V. Trumbtdl 503, 532 Marshall Co. High School Co. v. Iowa Evangelical Synod 625, 1303 Marston r. Brackett 1581 /•. Brasbaw 1 ' '-^ V. Brittenbam 1197, 1204, 1 205 t;. Hobbs 843,86 7,943 Marston v. Williams 1466 Martel v. Somers 1513 Martin c. Atkinson 376 V. Baker 929, 931 V. Ballou 619,674,6 76 V. Bonsack 254 ^^ Bowie HOI V. Brown 1394 V. Carlin 438 V. Cauble 1522, 1546 t;. Cook 503, 529 V. Cooper 485 V. Davidson 1182 V. Drinan 798 V. Dwelly 1182, 1212 V. Evansville 481 V. Flaharty 1220, 1240, 1272, 1312 V. Flowers 1042 V. Gordon 948, 968, 981 r. Hargadine 1207,1212 r. Harris 1031,1942 r. Jackson 1568,1792,1814 V. Lloyd 397, 421 V. Long 575, 943 V. McRee 613 V. Martin 101, 643 V. Nance 484, 488, 491 V. Neblett 1552, 1559 ^^ O'Bannon 1170 V. O'Brien 472 V. Ohio R. Co. 718, 720, 728 V PtlC t? loo v. Ramsey 1220, 1269 V. Reynolds 1824 V. Skipwith 723 V. Smith 1819 V. Spicer 7i 3 V. Splivalo 645 V. Tbompson 1625 V. Townsend 1081 V. Tradesmen's Ins. Co. 1338, 1340 v. Waddell 419,470 V. Weyman 1061 V. Wilbourne 254 Martindale 17. Alexander 1981 V. Kansas City, &c. R. Co. 1 75 Martling v. Martling 99, 110, 115, 1220, 1233, 1256, 1257 Martyn y. Knollys 1912 Martz r. Eggemann 1240 V. Williams 445 Marvin v. Applegate 921 I'. Brewster Iron Mining Co. 534, 1595, 1596 cvii TABLE OF CASES. References are to Sections. Marvin c. Elliott 351, 423 Matthews /•. Coalter 1359 Rlarwii'k v. Andrews 715, 732 r. Denicrritt 1563 Marx V. Mo(il\ nn 103, 167 r. Matthews 1969 Mascolo V. Montosanto 87 r. Skinker 173 Mash I'. Daniel 1011 Mattingly r. Nye 290 Mason c. Black 1511, 1547 Mattis /•. Boijss 1936 V. Brock 1146, 1150, 1151, Mattocks r. Brown 614 1182 Matzon r. Grifliii 1745, 1759 V. Ham 830 Man<>hani r. Sliarpe 225, 244 V. Kellogg 924 V. Merrill 338, 339, 353 V. Mullahy 1387, 1522, 1524, 1568 r. Pate 233, 602 V. Philbrook 1484 V. Ring 103 V. White 413 Massey. v. Belisle 339, 342 V. Hubbard 1563 r. Westcott 1406 Massie v. Yates 1566, 1946, 1952, 1979 Masten v. Olcott 336 Mastery. Hansard 773, 777, 781, 798 V. Miller 1328, 1331, 1341 Masters v. PoUie 1614 Masterson i: Cheek 156, 1220, 1227, 1276, 1277, 1282, 1297 V. Little 1404 V, Munro 423 V. Todd 338, 343, 1146, 1442 r. West End N. G. R. Co. 1570 Mastin v. Halley 1062 Mateskey v. Feldman 1575 Matheny r. Stewart 968, 983, 985 Mather v. Chapman 4 72 V. Corliss 266, 1234, 1240 V. Eraser 1725, 1727 V. Jarel 1447 V. Scoles 295 Mathers /•. Hegarty 389 Matherson v. Davis 7, 9 Mathews r. Aikin 1484 V. Feaver 279 Mathiessen & W. Refining Co. r. McMahon ° 1039 Matlack v. Hogue 388 Matson r. Calhoun 1698 Mattair v. Payne 1963 Matteson v. Vaughn 850, 903, 914, 987 ^Matthews (;. Baxter "8 V. Bliss l«40 cviii Maul r. Rider 1482, 1513, 1517, 1522, 1846, 1942 Maupin r. Emmons 1511, 1512, 1517, 1563, 1566 Maverick v. Routh 923, 925 Mawson v. Blane 16 Maxey r. Wise 1215 MaxfieJd v. Burton 1522, 1532 Maxon /•. Lane 785 Maxwell /•. Grace 40, 42, 44 L\ Hartmann 1451 r. Higgins 1878 V. Hosmer 408 May V. Borel 1532 V. Le Claire 1394, 1397, 1532 V. Ritchie 579, 602, 614, 617, 618 V. Seymour 1012 V. Slade 1925, 1928 V. Slaughter 139 V. Sturdivant 1575 c. Tillman 336 Maybee v. Sniffen 1367 Maybin v. Kirby 1522 Maybnrry v. Brien 1410, 1773 Mayer's Appeal 820 Mayer ;;. Waters 1698 Mayes in Manning 1867,1879 Mayhani v. Coombs 1406, 1451, 1501 Maybe w v. Norton 476 Maynard r. Maynard 163, 167, 1217, 1248, 1267, 1289, 1296, 1448 r. Moore 798 V. Weeks 448 Mayor v. Hart 472 v. Law 503, 543 V. Lefferman 87 r. Moore 1311 V. New York Cent. &c. R. Co. 514 V. AVatson 6 75 r. Williams 1522 Mays y. Hedges 1139, 1205 V. Leggett 1563 r. Pryce 1207 Maze V. Bm-ke 1403, 1589 TABLE OF CASES. References are to Sections. ]\KA(low V. Black 1115, 1396, 1404, 1408, 1442 McAfee v. Arline 340, 346, 347, 351, 404, 423, 503, 529 McAfferty v. Connover 368 Mc Allen v. Raphael 1979 McAllister v. Avery 1365 V. Honea 503, 519 r. Mitchner 1258,1259, 1303 V. Plant 142, 14 7, 1789 McAlpin V. Woodruff 86 7, 986 McAlpine v. Reicheneker 445 McAnincli v. Freeman 389, 439 Mc Arthur ?;. Henry 358 V. Scott 1960 McBurnie, Ex parte 281 McCabe v. Grey 1482 V. Hunter 195, 1058 V. McCabe 1887, 1986, 1987 JNIcCafferty v. Griswold 968 McCain v. Hill 1108 V. Pickens 1285 McCaleb v. Pradat 1061 McCall V. Carpenter 1963 V. Davis 450 r. Reybold 1940 V. Webb 1872 V. Yard 1568 McCalla v. Bane 302, 1233, 1234, 1236, 1302, 1307, 1309 McCallum v. Petigrew 1185 McCammon v. Detroit, L. & N. R. Co. 1153 McCampbell r. McCampbell 44 V. Mason 1485 McCandless' Appeal 1972, 1975 McCandless v. Engle 91, 1185, 1186, 1199, 1447 McCann v. Atherton 1248, 1303 McCarley v. Tippah Co. 1062, 1066 McCartee v. Orphan Asylum Soc. 43, 169 McCarthy v. Nicrosi 2, 10, 17, 19, 24, 1576 McCartney v. Dennison 402 McCarty v. Leggett 842, 928, 953 V. Murray 11 ?•. Woodstock Iron Co. 17, 18 McCauley v. Fulton 244 MoCausland r. Fleming 376, 378 McCelvcy v. Crver 1364 McChesney v. VVliite 1846 McClain v. McClain 1331, 1335 McClair v. Wilson 81 McClanahan c. Williams 9, 27 iNIcClaskey r. Barr McClatchie v. Haslam McCleary v. Ellis 1868, 1981, 1984, 1988 83, 92 660, 662, 663, 664 McCleery v. Wakefield 1331 McClellan v. Zwingli 1248 McClelland v. INIoore 974 McClenaghan v. McClenaghan 166 McClintick v Cummins 88, 94 McClintock's Appeal 1608 McClintock v. Ro£ers 381, 400, 438 1877 1873 1331 1420 869 274 968 1165, 1204 29, 968 1439 668 430 802, 824 1957 Reed 209, 1394 Blood 1678, 1712, 1717, 1719, 1721, 1746, 1765 V. Brayner 309 r. Brillhart 1002 r. Carey 1942,1949,1950 V. Citizens' State Bank 303 V, Downs 924 McConville v. Howell 163 McCord V. Oakland Q. M. Co. 1887, 1911, 1912, 1914 McCormack v. James 1159, 13 74 McCormic v. Leggett 2, 10, 14 McCormick v. Barnum 359, 364 V. Bauer 1426 V. Cheevers 861 I'. Fitzmorris 1359, 1364 r. Leonard 1524 V. McCormick 1240, V. Monroe 342, 353 McCloskey v. McCIoskey McClung V. Ross i\ Steen McClure v. Burris i\ Campbell V. Cook V. Gamble V. McClurg r. McClure McClurg V. Phillips McCollough V. Gilmore Mc Combs V. Sheldon McConaghy v. Pemberton McConnel r. Kibbe McConnell 1280 519, 521 151 1534 V. Parry V. AVheeler McCormick Harvesting Machine Co. *'. Hamilton 88 McCormick Harvesting Machine Co. V. Scovell • 1807 M'Coun V. Dclany 407 McCourt V. Eckstein 1919 cix TABLE OF CASES. References are to Sections, McCown r. King filO r. Wheeler 1^31 McCoy r. Barns 1807 r. (';\ssi(lay 1073 r. (ialloway 389 V. (Jreen 88 V. I lance 372 V. Willi ford 131 McCracken r. San Francisco 1082 M'Craily v. Bi-isbane 931, 933, 967 V. Jones 1995 McCraven v. Doe 1124 V. j\Ic(Juire 1123 McCrea r. Newman 1547, 1555 V. Purniort 295, 298, 301, 303, 306, 948 McCready v. Lansdale 402 McCreary v. Douglass 898 V. McCreary 1146 McCruden v. Rochester Ry. Co. 448 McCuUock V. Aten 490 V. Holmes 573, 576 McCullough I'. Absecon Imp. Co. 381 V. Day 1238 V. Wall 428, 480, 484, 485 McCurdy's Appeal 10.")4 McCurdy v. Canning 1792, 1797, 1«00, 1803, 1812, 1814 McCusker v. McEvey 1488 McDaid V. Call 1292 McDaniel v. Grace 1028 V. Johns 525 V. McCoy 48 V. Needham 1163 McDaniels v. Flower Brook Manuf. Co. 1049, 1117, 1442 McDavid y. AVood 1767 McDermot v. Lawrence 1585 McDermott r. French 1794, 1797, 1800 McDill V. Gunn 295, 862 McDodrill r. Pardee, &c. Lumber Co. 1916 McDonald v. Belding 1394, 1527 V. Donaldson 1981 V. Eggleston 1025, 1035 V. Elfes 901 V. Fox 1866 V. Minnick 1220, 1256 V. Morgan 219 V. Whitohurst 471, 4 79 McDonough v. ^lartin 833, 896 McDowel V. Chambers 1238 McDowell V. Mili-oy 974 McDuff V. Beauchamp 1802 cx McDuffie i'. Clark 219 McDiinn c. Dts Moines 944 McElroy r. Ilines 1217, 1220, 123G V. McElroy 594 V. Morley 723 McElwain v. Russell 48, 103 McEntee v. Scott 1733 INIcEowen v. Lewis 410 McEvoy V. Leonard 1994 V. Loyd 438 McEwen r. Bamberger 1289 McEwin V. Troost 1293 McFadden v. Allen 1667, 1672, 1743, 1748 V. Crawford 1712, 1716 V. Worthington 1406 McFadgen v. Eisensmidt 1287 McFall'w. McFall 1220, 1248 McFarland v. Stone 1937 McFarlin r. Leaman 1836, 1844, 1K52 McGahan v. National Bank 1832, 1833, 1834, 1892 JNIcGan v. Marshall 21, 22 McGarrahan v. New Idra M. Co. 247 McGary v. Hastings 913, 919, 962, 968, 974 McGavock i'. Deery 1547 M'Gee v. Eastis 990 McGeey. Hall 1862, 1874, 1986 V. Holmes 1839, 1846 McGehee v. Gindrat 1521, 1523 McGennis v. McGennis 613 McGill V. Ash 1922 V. Doe 1 38 V. McGill 1924, 1925, 1928 McGinn V. Tobey 13 79 McGinnis v. Commonwealth 53 V. McGinnis 616 McGlawhorn v. Worthington 337, 343, 349, 351, 402 McGlennery v. Miller 1184 McGorrisk v. Dwyer 1665, 1718 McGowan v. Reid 1104 V. Smith 1409 McGowen v. Myers 874, 882, 883 McGown V. Yerks 1390 McGrath v. Hyde 1247, 127 7 McGraw, Matter of 179, 180 McGraw v. IMcGraw 1233, 1289 McGregor v. Brown 1600, 1602 V. McGregor 1559 V. Tabor 923, 925 McGrew v. Harmon 905, 919, 921 McGror\- v. Reilley 88 McGuckin c. Milbank 967 McGiiffev V. Hunu's 949, 968, 981 McGiiite'c. Barker 1464 TABLE OF CASES. References are to Sections. 78 254 104 1979 155, 578, McGuire v. Callahan V. Kouns McHarry v. Irvin V. Stewart Mcllhinny D. Mcllhinny 579,601,604,606,613,614 Mcllvain v. Mut. Assur. Co. 1489 Mcllvaine v. Harris 1619, 1624 V. Kadel ^-^ Mclndoe v. St. Louis 175 Mclnerney v. Beck 2_-J4 Mclnnis v. Lyman 848, 850, 943, 9d6, y u o ^ c7 tj * V. Pickett 1487 Mclntire v. Patton 127 Mclntyre u. Barnard 559 i\ Delong *^5i5 V. Mclntyre 609, 610 V. Park 1035 V. Velte 1346, 1349, 1350 V. Ward 1159 M'lver V. Walker M'Kain v. Miller ISIcKamey v. Thorp McKay v. Mumford McKeage i'. Hanover F. Ins. Co. 381 1071 1390 1895 1703 McKean & Elk Land Imp. Co. v. Mitchell 1435, 1454 M'Kechnie v. Hoskins McKee v. Bain V. Hicks V. Perchment V. Spiro V. Wilcox M'Keen v. Delancy V. Sultenfuss McKellar v. Peck McKelway v. Seymour 1575, 1578 974 1220 450 225 1563, 1568 1120 1406 1143, 1146 678, 686, 696, 743 McKissick v. Colquhoun 1457 V. Pickle 686, 723, 743 McKnight V. Bell 1942, 1949 V. Krentz 63o M'Lanahan v. Reeside 1488 McLane v. Canales 1087, 1981, 1997 McLarren v. Thompson 1469 McLaughlin v. Ihmsen 1380 V. Johnson 1709 V. McLaughlin 1842, 1862, 1887 u. McManigle 1217, 1220, 1234, 1240, 1243 V. Miller 871 V. Randall 1068 V. Shepherd 1575 McLauren v. Baxter 225 McLean v. Button 1247 12 m V. Clapp 1564, 1568, 15^8 V. McKay V. McLean V. Nelson V. Palmer V. Patterson V. Webster McLellan v. Jenness McLennan v. IMcDonnell ?'. Prentice 943, 944, 955, 956 McLeod V. First Nat. Bank 1386, 1390, 1517, 1522 McKenna v. Kelso McKenzie v. Lampley V. Railroad Co. McKeon v. Millard McKey v. Hyde Park M'Kibbin, In re ]M'Kibben >: Newell McKie V. Anderson McKiernan v. Hesse McKildoe V. Darracott M'Kim V. Mason M'Kinney v. Rhoads V. Rodgers V. Settles McKinster v. Babcock McKinzie c Pcrrill V. Stafford 773, 775 1958 1282 1668, 1673 1058 893, 906 1923 1222 500, 913, 1220 1627 44 388 341 1717 1340 1180 1689 707 1717, 1726 1269 1115 312, 316 295 1511, 15(13 1172 V. Skiles V. Swain V. Tarrant McLouth V. Hurt McLure ^. Colclough McMahan v. Bowe V. McMahan 861 375 571, 572, 574, 575, 1792 1436, 1472 1218 119, 121, 127 128, 140 1942, 1949, 1950 285 290 1887 1836 1109, 1846 1109, 1540 481 1380, 1523, V. Morrison McMahon v. Allen V. Burchell t'. McClernan V. McGraw McMaken v. Niles McManus v. Carniichael MrMechan c Griffing McJVlecnan ^563: 1565, 1568, 1570 McMichaeU. Carlyle 1238 McMillan z). Edfast, 1111,1112 V. N. Y. Waterproof Paper Co. 1672 V. Peacock 40, 44, 46 McMinn u. O'Connor 143o Cxi TABLE OF CASES. References are to Sections. ^rc^forris v. Webb .McMuUeu r. Ea«ran 7, 9, 23 1188, 1195, 1208, 1212 ^Ic^hillin V. Wooley 874 :NrMuri>by r. Rlinot 935 :Mf.Mmr:iv r. I\K-jMurray 24 :\IcMmTy c. Fletcher 244 McMurtrie v. Kccnan 89 V. Kiddcll 1392 McMurtry v. Brown 1016, 1017, 1021 V. Keifner 1958 MoXab V. Younii 1328, 1335, 1337 McNally r. Connolly 1717 McNamara v. Seaton 334, 354, 359 McNamee v. Hnckabee 1464 McNear v. McComber 894, 896 M'Neelv v. Rucker 266, 1196, 1447 MoNeirv. Polk 1572 McNitt V. Turner 1408 McNulty i'. McNulty 1257 McParland v. Larkin 1890 McPheeters v. Wright 1835, 1836 McPherson v. Housel 1559 V. Reese 1066 V. Rollins 782, 1482, 1483 tK Seguine 1940 V. Sanborn 1196, 1197, 1205, 1447 M'Queen v. Farquhar 1531 V. Logan 608 V. Turner 1963, 1970 McQuie I'. Peay 1331, 1332 McRae r. Battle 112 V. McMinn 1563 McRaven v. Crisler 1350, 1352 McRea v. Central Nat. Bank 1668, 1672, 1673, 1712, 1713, 1714, 1748, 1757 V. Dutton 1979 McRpynolds v. Longenberger 1175 ]\Ic Roberts v. Copeland 1791 :\IcShane v. Main 448, 466 V. Moberly 449 ■Mc Shirley v. Boit 1529 McWhirter v. Allen 339 McWhorter v. Wright 271 McWillianis v. Nisly 667 Meacham v. Meacham 1942, 1946 V. Steele 1489 Mead v. Ballard 687 V. CoomVjs 76, 99 V. Fox 829 V. Haynes 490 V. New York, Housatonic & Northern R. Co. 1403, 1407 V. Parker 321, 346 V. Riley 462, 463 cxii Mead v. Staokpole Meade v. Gilfoyle V. Land Co. Meadows v. Smith INIeagher v. Drury V. Hayes I'. Thompson Meazles v. Martin Mebane v. Mebane 903, 914 1563 390 85 1457 1667 1044 1013, 1103 663 Mechanics' Bank v. Schaumburg 1536 Mecklcm v. Blake 929, 931, 943, 952, 953, 955 Meddock v. Williams 1141 Medford v. Frazier 1891 Medler v. Hiatt 883 Medley v. Mask 303 Medlin v. Platte Co. 1338 V. Steele 1940 Medway Cotton Manuf. Co. v. Adams 239 Mee V. Benedict 321, 1375, 1461, 1601 Meech v. Fowler 1238 V. Lee 84, 88 Meehan r. Williams 156 7, 1568 Meek v. Breckenbridge 1635, 1640 V. Holton 526 Meeker v. Meeker 295, 301, 303 V. Wright 1802, 1805 Meeks v. Willard 341, 394 Meier «. BInme 1514, 1517, 1532 V. Kelly 335, 339, 1404 V. Railway Co. 449 Meigs' Appeal 1668 Mei'kel v. Borders 1396, 1398, 1463 V. Greene 323 Melcher r. Merryman 381 Melick V. Pidcock 575, 581, 593 Mellichamp v. Mellichamp 609 Mellon's Appeal 1456 Mellon V. Reed 1942, 1943, 1949 ]\Ielsheimer v. Gross 578, 579 Melton V. Lambard 1595 V. Monday 521 V. Turner 1458 Melvin v. Proprietors of Locks & Canals 156, 326,410,413,418,420 Memmert v. McKeen 884, 885, 887 Memphis, &c. R. Co. v. Neighbors 620, 708, 715, 731 Memphis Land Co. v. Ford 13 74, 1385 Menage v. Burke 244 Menasha Ware Co. v. Lawson 483, 491, 492 jVIendall r. Delano 551, 555 Mendenhall r. Slower 578 TABLE OF CASES. References are to Sections. Mendenhall v. Parish 303 Meni v. Rathbone 1-464 Menkens i'. Bhimenthal 372 Menkins r. Liglitnor 48, 68 Mercantile Nat. Bank v. Parsons 1543; 1549 Mercantile Trust Co. v. South Park Residence Co. 943, 944, 983, 986 Mercers of Shrewsbury v. Hart 236 Mercier v. Missouri River, &c. R. Co. 587 ]\lerchants' Bank v. McClelland 1392 Merchants' F. Ins. Co. v. Grant 14 Merchants' Nat. Bank v. Lovett 1532, 1697, 1744, 1754 Merchant Tailors' Co. v. Attor- ney-General 640 Meredith ?;. Andres 1887 r. Kunze 1737 Meriam v. Brown 1748 V. Harsen 43, 295, 305, 309, 1182, 1190, 1442 Merle v. Matthews 167, 265 Merriani v. Cunningham ^ 5 Merrick v. Merrick 326 V. Wallace 1436, 1437, 1451, 1472 IMerrifield v. Cobleigh 632, 635, 678, 697, 704, 707, 730 V. Parritt 1860 Merrill v. Emery 674 I,. Hutchinson 1396,139/ V. Montgomery 1117 V. Newton 450 V. AVyman 1687 Merrills v. Swift 1234, 1240, 1282, 1291,1449 Merriman v. Hyde 1109, 1383 V. Moore 305 Merritt v. Byers 858, 860, 988 V. Disney 575, 593 V. Harris 626, 696 V. Home 1064 V. Hughes 1970 V. Judd 1689 V. Morse ''24 V. Northern R. Co. 1387,1570 V. Phenix 1178 r. Yates 1171,1207,1208, 1209 Mertins i'. Jolliffe 1531 Merwin v. Camp 1085 Meserve v. Meserve 522, 529 Meservey v. Snell 892, 893, 913, 986 Mesick v. Sunderland 337, 619, 1374, 1482 Meskimen v. Day 1146, 1442 Messelback v. Norman 1292 Messer v. Oestreich 352, 943, 944, 968, 981 Messersmith v. Messersmith 731, 732 Metcalf 17. Van Benthuysen 1108 Metcalfe v. Brandon 1292, 1294, 1296 V. Miller 1970 V. Pulvertoft 1387 Methodist Church v. Old Colum- bia Co. 627 V. Remington 170 Meth. Epis. Church v. Jaques 1277 V. Town 276 Methodist Protestant Church v. Laws 649, 650 Metropolitan Bank v. Godfrey 178, 1390 Metropolitan L. Ins. Co. i;. Meeker 84, 88 Mettart v. Allen 324, 334 Mette V. Dowe 944, 968, 971 V. Feltgen 27, 1770, 1773, 1782, 1787 Metts V. Bright ' 1451, 1455 Meux V. Jacobs 1749 Meyer's Appeal 1835 Meyer v. Construction Co. 1433 V. Go?sett 1196, 1198, 1205 V. Huneke 1350 V. Johnston 1729 V. Knechler 56 V. Mitchell 336 17. Orynski 1721 V. Sulzbacher 40, 44 Meyers v. St. Louis 481 Mhoon V. Cain 1867, 1874 Michael r. Foil 295 Michcll's Trusts, In re 250 Michener v. Cavender 1196, 1197, 1201, 1206, 1447 Michigan Ins. Co. v. Brown 1555 Michio-an Mut. L. Ins. Co. v. Co- nant 1510, 1511, 1517 Michio-an Mut. L. Ins. Co. i'. Cronk 1695, 1696 Michigan State Bank v. Ham- mond 685, 731 Michi<--an State Bank v. Hastings 685, 731 Mickey r. Stratton 1082 Micklcthwait v. Newlay Bridge Co. 484 Middk'brook v. Corwin 1708 ]\Ii(ldlebrooks v. Warren 1409 Middlebury College v. Cheney 953, 1120 cxiii TABLE OF CASES. References are to Sections. Multlloliokl c. Church Mills Knit- tin;; Co. 795 MidiilokanfY v. Barrick 833 MiililloniDre r. Gooilale 988 Middlesex, &f. II. Co. r. Boston &c. 11. Co. 142 Middleton r. Findla 217, 218, 10(»7, 1165 V. Hone 14, 158 V. Pri\ chard 4 72, 480 Middletown v. Newport Hospital 779, 782 Middletown Sav. Bank v. Bacha- rach 1846 Midgett V. Wharton 521 Midgley v. AValker 1773, 1775, 1778, 1779 Midland Ry. Co. V. Fisher 816 Milbourn v. David 1862, 1873 Milburn v. Phillips 310 Mildmay's Case 264 Miles i: Barrows 335, 338 i;. Blanton 1524 V. Fisher 575, 1781 V. King 1407 V. Lingerman 8, 9, 23, 31 V. Sherwood 442 Millard, In re 1212 Millard v. McMullin 1866 Milldam Foundry v. Hovey 1065, 1080, 1082 Mill River Woollen Manuf. Co. v. Smith 495 Miller, Ex parte 1010, 1094 Miller v. Alexander 1061 V. Beeler 381, 388 V. Bentley 398 V. Binder 1070, 1073 V. Bingham 1521, 1582 V. Bradford 1469 V. Bryan 324, 384 V. Church 1259 V. Craig 48, 49 V. Dennett 1784 V. Des verges 882 V. Ewer 1053 V. Ewing 992 V. Fletcher 1303, 1317 V. Fraley 1394, 1395, 1527 V. Gilleland 1346 V. Goodwin 268, 295, 298, 303 V. Halsey 976 V. Hensliaw 1146 V. Irish Catholic Asso. 1 281 V. Lamb 1011 V. Levi 713 V- Link 1177, 1178 cxiv Miller t'. Lullman 1234, 1267 V. McCoy 295 V. Mc(;iaun 355 V. Mann 485, 1647 V. Marx 1196,1206,1207, 1447 V. Meers 1220, 1226, 1269 V. Miller 40, 44, 45, 82, 85, 89, 251, 1501, 1784, 1884, 1917 V. Mills 1846 V. Minor Lumber Co. 88, 94, 95 V. Murfield 100, 1236, 1243 V. Myles 1862, 1866, 1867, 1871 V. Physick 1217, 1234, 1269 V. Porter 1 70 V. Powell 1209 V. Rutland & W. R. Co. 1050 V. Scars 1306 V. Sherry 1560 V. Smith 31, 33 V. Superior Machine Co. 1072, 1079 V. Topeka Land Co. 331, 424, 432,445, 446 V. Travers 326 V. Tunica Co. 250, 649, 650, 679, 687 V. Waddingham 1695 V. Ware 1469 ?;. Wentworth 1188,1196, 1197, 1198 V. White 437 V. Wilson 1742, 1743, 1753 Millership v. Brookes 1304 Millett V. Fowle 394 V. Parker 1312 Millican v. Millican 97, 99 Milligan v. Poole 1989 Milliken v. Marlin 1361 Millikin v. Armstrong 1670, 1746 Millis V. Roof 1836, 1921 Mills V. Catlin 842, 960 V. Comstock ' 146 7 V. Dow 303, 307 V. Evansville Seminary 632, 6 78, 692 V. Gore 1220, 1327 V. Mills 1248 V. Penny 368 V. Rice 915 V. Saunders 930, 962, 967 V. Seattle & M. Ry. Co. 743 V. Starr 1348 V. Van Voorhies 1409 Milne v. Cummings 1938 Milncr y. Milner 1929 TABLE OF CASES. References are to Sections. Milot r. Reed I' I Milton v. Colby 1695, 1696 Milwaukee v. Milwaukee & Bcloit R Co. ■^■^''^' •^^- Milwaukee & M. R. Co. v. UW- waukee & W. K. Co. • 290 Mim? V. Miins 1472 Minah Consolidated Min. Co. v. Briscoe 1303, 1310 Mincke v. Skinner 48o Miner v. Brader 381, 439 i;. Brown 1794,1797 V. Clark 924 V. Lorman 1931 Miner's Ditch Co. v. Zellerbach 141, 142, 151, 1049, 10S2 Minc-ns v. Condit 285, 1390 ISIinincr Co. v. Anglo- California Bank 1052, 1054 Mining Co. v. Taylor 1862 Minke v. McNaniee 193b Minnesota Co. v. St. Paul Co. 1 - 29 Minor v. Kirkland 340 V. Powers 325, 326, 338, 342, 1245 u. Willougbby 1517 Minter v. Durham 1846, 1937 Minto f. Delaney 485,491,492 Minton v. New York Elevated K. Co. 1578 V. Steele 1871 ]\Iischke V. Baugbn 944 ]SIiskev's Appeal 53, 74, 103, 108 Missis'sippi Valley Co. v. Chicago, St. L. & N. O. R. Co. 1372,1406 Missouri V. Kentucky 485, 486 Missouri Fire Clay Works v. Elli- Missouri Hist. Soc. v. Academy of Sciences 716, 718 Missouri Lead Min. Co. v. Rein- hard 182, 183 Missouri Pac. Ry. Co. v. House- man ^'^^'l Missouri Pac. Ry. Co. v. Maffitt 1638 Mi-^souri River R. Co. v. Commis- 1062 sioners ^" - Missouri Valley Land Co. v. Bar- wick 1«19, 1621, 1628 Missouri Valley Land Co. v. Bush- Mitchell V. Churchman V. Hazen V. Ireland V. Kingman a;. Leavitt V. Lipe V. Mitchell V. Pillsbury V. Ryan 125 831, 850, 967 337 65 796, 814 138 582, 1937 869 156, 1234, 1282, 1292, 1297 V. St. Andrews, &c. Co. 1080 V. Seipel 534 V. Shortt 1314 V. Simpson 583 V. Smale 492 V. Smith 1559 V. Stanley 958 V. Starbuck 1955 V. Stevens 138 V. Steward 805 V. Thorne 503 V. Union L. Ins. Co. 1066 V. Warner V. Wilson Mitchner v. Holmes Mittel V. Karl 874, 879, 909, 919, 928 562 1149 568, 1786, 1793, 1796, 1802 541, 1651 135 1414 677 382 402 nell Mitchel V. Reynolds Mitchell V. Aten I'. Bartlett V. Brawley V. Bmdctt V. Chi>holm 173, 175, 1087 (175 1530, 1582 1217, 123H 361 381 304 Mixer v. Reed Mixter v. Woodcock Mize V. Barnes Mizell V. Burnett V. Simmons Mizzell V. Ruffin INlobile Bank v. Tishomingo Sav. Mobile Sav. Bank v. McDonnell 271, 292, 29.J, 309, 310 Mobile, &c. R. Co. v. Talman 150 Moblev r. Bruner 1936,1938 Moelle i: Sherwood 1355, 1356, 1394 Moffit V. Witherspoon 48 Moffitt I'. Lytle 504 Mohawk Bank r. Atwater ^»9 Mohlis v. Trauffler 1352 Mohr V. Parmelee 8 / 1 1,. Tulip 52,53,68,71 ]\Iolitor V. Sheldon 450 MoUyneaux r. Wittenberg 738 Molton r. Camroux 65, 68, bJ Monell r. Douglass »»6 Moufort I'. Stevens 52d Monnots i: Husson IJ- Monongahela Bridge Co. v. Ki^k 481 Monroe v. Arledge 1117, 114', 1149, 1159, ll'O V. Bowen 1''01 oxv TABLE OF CASES. References are to Sections. Monroe v. Hamilton V. Luke V. I'oonnan i;S7i U)17 119(i, 1197, 1447 Montajc v. Linn 1161, 13G5 Montague v. Dent 1703 V. Sell) 1836, 1840 Montague Co. v. Clay Co. Land Co. 436 Montgomery, Ex parte 16 70 Montgomery v. Byers 1559 V. Carlton 330 V. Crossthwait 1353, 1361, 1363 V. Dorion 166, 1041 V. Hines 448, 465 V. Keppel 1506, 1517, 1522 V. Merrill 1628 V. Northern Pac. Ry. Co. 949 V. Perkins 1094 V. Reed 476, 479, 843, 888, 903, 928, 943 V. Sturdivant 562, 563, 576 Montville v. Haughton 1062 Monument Nat. Bank v. Globe Works 144 Monypenny v. Monypenny 262 Moody V. Aiken 1668 V. Butler 1867, 1874 V. Dryden 1255, 1448 V. Johnson 1937 V. Leavitt 968 U.Moody 1794 V. Palmer 448, 455, 463, 468 V. Spokane, &c. R. Co. 829 Mooers v. Bunker 1917 V. White 166, 167 Moogw. Strang 118, 1198, 1206 Moon i;. Jennings 1853 Mooney v. Burchard 905, 924 Moor V. Watson 1406 Moore's Appeal 645 Moore's Banking Co., Ex parte 1718 Moore's Estate 1990 Moore v. Abernathy 24 V. Adams 85 V. Antil 1878 V. Appleby 1966 V. Baker 137 V. Bennett 1547 V. Brooks 610 V. Brown 122 6. Curry 1531 I'. Davey 1 loi; cxvi Moore v. Flynn 1242, 1276, 1282 V. Frankenfield 903, 968, 971 V. Fuller 1196, 1198, 1447 V. Giles 1282, 1297, 1301 V. Glover 14(i3 V. Gordon 1963 V. Grifhn 324, 410, 4 76 V. Hazelton 1248, 1286 V. Ivers 1338 V. Johnston 448, 449, 842, 844, 92S V. Jourdan 1.563 V. Kerr 1942, 1943, 194 7 V. Lee 233 V. Leseus 1063, 1066, 1069 V. Littel 602 V. Lockett 1031 V. McKie 948 V. Madden 1439 V. Mao-rath 246, 250 V. Merrill 928, 932, 933 V. Moore 99, 115, 1129, 1871 V. Page 45 V. Pierson 1563 V. Pitts 712 V. Quince 599 V. Ragland 1455 V. Rake 616 V. Reiley 389, 392 V. Ryder 285 V. Siinborne 484 V. Shannon 1958 V. Shattuck 309 V. Simkin 614 V. Sloan 1428 V. Stewart 1937 V. Tarrant Co. Agricultural Asso. 1386, 1568 V. Thomas 1109, 1380, 1441, 1501 V. Thorp 1997 V. Titman 1146, 1147 V. Vail 915, 917, 919 V. Vallentine 1667, 1717 r. Vance 1129 V. Waco 564, 568 V. Walker 1389 V. Weber 893 V. Whitcomb 389 V. Wilder 540 V. Willamette, T. & L. Co. 480, 1049 r. Williamson 1997 V. Woodall 1836, 1846 V. Worley 123 Moorman v. Board 1818 Moote V. Scriven 1340 TABLE OF CASES. References are to Sections. Moran v. Lezotte 324, 352, 398, 400, 401, 412 More V. Massini 324, 326, 472 Moreau r. Saffarans 244 Morehouse v. Heath 861 Moreland v. Metz • 968 V. Myall 1620, 1627 V. Page 381, 445 V. Richardson 1563 Morey v. Hoyt 1768 Moring v, Dickerson 1409, 1411, 1414 Morgan, Ex parte 256 Morgan v. Bass 494 V. Bitzenberger 303 V. Clayton 1394, 1401 V. Donovan 1 78 V. Givens 386 V. Hannibal & St. Jo. R. Co. 921, 962 V. Henderson 903 V. Hudnell 1929 V. King 484 V. Morgan 616, 1899 V. Reading 480 V. Smith 874 Morison v. New York Elevated R. Co. 462 Morland o. Cook 782, 789 Morley v. Rennoldson 059 Morrall v. Waterson 301 Morrill v. Morrill 1441, 1499 V. Noyes 1729 ' V. Otis 1342 V. Wabash, St. L. & P. Rv. Co. 632, 643, 650, 691 Morris's Appeal 1668, 1670, 1712, 1714, 1757 Morris v. Beecher 1420 V. Clay 74 V. Daniels 1523, 1527 V. French 1(;91 V. Harris 1953, 1973 V. Henderson 1248 V. Hogle 1547 V. Jansen 995 V. Keil 1051, 1082 V. Keyes 1447 V. McCarty 1773, 1786, 17.S7, 1794 V. Murray 1546, 1547, 1555 V. Pate 1415 V. Phelps 944, 945 V. Rowan 968, 981, 983, 985 V. Sargent 1196 V. State 241 V. Stephens 230 Morris v. Tillson 295, 303 V. Tuskaloosa Manuf. Co. 733, 767, 771, 780, 782 V. Vanderen 1395 V. Wadsworth 1483 V. White 1517 Morris Canal & Banking Co. v. Ryerson 295 Morrison v. Bauseraer 1532, 1534 V. Berry 1668 V. Bowman 1040, 1042 V. Brown 1442 V. Funk 1406 V. Keen 478, 484 V. Kelly 1240, 1241, 1517, 1522, 1563, 1568 V. March 1563, 1566, 1575 V. Mendenhall 245 V. Morrison 859, 1551 V. Neff 433 V. Robinson 1906 V. Underwood 928, 930, 953, 956, 902, 967 V. "White 11.30 Morrow v. Whitney 381 V. W^illiird 443, 463 Morse v. Aldrich 786, 793 V. Carpenter 227, 244 V. Clayton 1159, 1162, 1105, 1168 V. Curtis 1502, 1503 V. Godfrey 285, 1390 V. Hackensack Bank 1028 V. Hayden 674, 1696 V. Hill 161 V. Morse 1436 V. Rogers 326, 381, 382, 4 24 V. Rollins 381 V. Shattuck 295, 302, 303, 943, 948, 968 V. Slason 1234 V. Stockman 402 V. Wheoler 16 V. Woodworth 79, 82, 86, 90 V. Wright 1386 Morton v. Lcland 1085, 1087 V. Lowell 1525 V. Morton 99 V. Nelson 1830 V. Robards 1404 V. Root 400 V. Smith 1155, 1371 Mosby V. Arkansas 1328 Mosely v. Mosely 1344 V. Withie 1874 Moscr V. Miller 625, 626 Moses r. Dude 118,1206 cxvii TABLE OF CASES. References are to Sections. 1112, 1178 1884 944 1527, 1528 15<»1) 1060 1563 109 109 1303 330, 397, 184<; 563, 578 1190 1969 448,449, 453, 454, 455 V. Whitemore 1783, 1800 Mott V. Danville Seminary 656, 719 V. Mott 448, 453, 454, 464, 488, 490 Moses r. DibroU V. Koss V. Wiillace Iklosluer r. Knox College Mosier r. Caldwell Moss V. Andei-son V. Atkinson V. Averill V. Moss V. Riddle V. Shear V. Sheldon Motes V. Carter Motley V. Blake V. Saro-ent V. Palmer i\ Smith Motte V. Alger Motz V. Mitchell Moulton p. Egery V. Faught V. Libbey V. Trafton Mount V. Kesterson V. Morton Mountford v. Scott Moye V. Kittrell Mover v. Hinman Mudd V. Grinder Mueller v. Brigham V. Engelin Muhlker t". Ruppert Muir V. Galloway V. Jones Muldoon V. Deline Mul«'icolin V. Schneiderhan 381, 424 Nicoll V. New York & E. R. Co. 708, 723, 727, 728, 729 Niehaus v. Shepherd 484, 485 Niell V. iNIorley 53, 69 Nightingale v. Hidden 565 Niland v. Murphy 1279 Niles V. Patch 479 Nippel V. Hammond 1177, 1185, 1821 Nitche V. Earle 1463 Nixon V. Cobleigh 217, 218, 1475 V. Hyserott 1033 V. Porter 380 Noble V. Chrisman 363 V. Goigins 395 V. Hill 1878 V. 111. Cent. R. Co. 531, 547 V. McFarland 1871, 1892, 1919 V. Moses 108 V. Sylvester 1709, 1710 Noblitt I'. Bet-be 1792 Noell V. Gaines 1547 Nolan r. Grant 1568, 1573 Noland v. Wasson 321 Noonan v. llsley 952 I'. Lee 340, 424, 429, 893, 919 Norcross v. Griffiths 480, 484, 488 v. James 787, 788, 793, 795, 938 V. Norcross 1825, 1959 V. Widgery 1570 Norcum v. Leary 364 V. Sheahan 20 Nordholt v. Nordholt 2 Norfleet t-. Cromwell 785, 798 V. Russell 1073, 1147, 1440 Norfolk, Case of Duke of 649, 654 Norfolk City v. Cooke 4 71 Norfolk Trust Co. v. Foster 335, 381 Norman i\ Cunningham 1793 V. Finch 943 V. Foster 858, 860 V. Towne 154 7 V. Wells 786, 787 V. Winch 953 Norres /•. Hays 1372 exxi TABLE OF CASES. Referoncos are to Sections. Norris' Appeal 3 73, 374, 1431 Norris r. Colorado Turkey Hone- stone Co. 890 V. Dains 1040, 1042, 105(» V. Dunn 1870 V. Freeman 1104 V. Hensley 610, 060 V. Hill 484 V. Hoyt 163, 166, 167 V. Hunt 323, 337, 338, 339 V. Laberee 643 V. Milncr 708, 723 V. Sullivan 1865, 1919 i\ Vance 16 North V. Knowlton 1482 V. Philbrook 593 North British Ins. Co. v. Hallett 1513 Northeott v. Casper 1874 Northern Pine Land Co. v. Bige- low 483, 492 Northern Transp. Co. v. Chicago 182 North Hempstead v. Hempstead 243 North River Meadow Co. v. Shrewsbury Church 1359 Northrop i\ Marquam 1862, 18GG V. Wright 1872,1873,1881 Northrup v. Brehmer 1463, 1464 V. Hottenstein 1436 Northwestern Forwarding Co. v. Mahaffey 1404, 1405 Northwestern L. Ins. Co. v. Blankenship 54 Northwestern Mut. F. Ins. Co. v. Blankenship 63, 67, 70 Norton v. Babcock 962, 969, 975 V. Birge 1559, 1562 IK Colgrove 967 V. CoUins 1866 V. Conner 331, 424 V. Craig 1708 V. Davis 1188, 1195, 1213 V. Header 1139, 1183 V. Norton 100 V. Perkins 626, 701 V. Relly 106 V. Sand(!rs 125 V. Schmucker 893 V. Williams 1404 Norvell v. Walker 1067, 1071 Norwood V. Crawford 385, 442, 443 Nosl(;r V. Huiit 952 Nott V. Owen 1859 V. Thayer 4. S3 Nottingham Brick, &c. Co. v. Butler 773, 774, 777, 785 NowcU V. Boston Academy 756 Noyes V. Hall 1563, 1568 cxxii Noyes v. Horr 1481 r. St. Louis, &c. R. Co. 632 649, 650, 690 V. Sturdivant 1466 Nudd V. Hobbs 475, 476 Nugent P. Priebatsch 1408 Nute V. Nute 1517, 1522, 1523 Nutting V. Herbert 303, 410, 943, 945, 948, 951, 968, 1565 Nyce V. Obertz 944 Nye V. Hoyle 786, 791, 800 V. Lowry 1014, 1018, 1224, 1240 V. Moody 334, 403, 424, 1437, 1822 Nys V. Biemeret 380 Oakes v. De Lancey 407, 472, 474, 493 V. Marcy 127, 128 V. Oakes 1893 Oakey v. Ritchie 99 Oakland Cemetery Co. v. Bancroft 1677 Oakley v. Stanley 1639, 1652 Oates r. Cooke 593 V. Hudson 89 Oatman v. Fowler 137,6 Oats V. Walls 1451, 1472, 1473 Oberholtzer's Appeal 1458 Obernalte v. Edgar 364 Obert V. Obert 1963, 1981 Oblenis v. Creeth 472 O'Brien v. Bailey 1958, 1959 V. Gaslin 27 V. King 466 i^ McGrane 445 V. Pettis 1434 V. Wagner 638, 708, 718, 722 y. Wetherell 190,657,671, 694, 718 O'Cain v. O'Cain 1070 Occum Co. t'. Sprague Manuf. Co. 178 Ocean Beach Asso. v. Yard 443 Oceanic Steamship Co. v. Tappan 89 Ochoa V. Miller 38, 318 O'Connell i'. Brvant 448, 464 O'Connor y. McMahan 1802 V. Nova Scotia Tel. Co. 448 Oconto Co. V. Hall 80 V. Jerrard 1451, 1479, 1481 Odell V. Buck 49 V. Cannon 638, 656 TABLE OF CASES. References are to Sections. Odell v. Odell 170 O'Dell V. Rogers 27 Odessa Improvement Co. v. Daw- son G71, C94 Odiorne v. Lyford 1919, 1922 V. Mason 1127, 1129 Odle V. Odie 1371, 1482, 1502 Odom V. Riddick 54, 68, 69, 72 V. Weathersbee 1873, 1878, 1880 O'Donnell v. Johns 1034 V. Kelsey 483 V. Penney 354, 364 O'Farrel v. Harney 431, 432 O'Ferrall v. Simplot 1188, 1204, 1207 Oo;biirn t'. Whitlow 923, 925 Ogdeu V. Ball 858, 919, 921, 928 946, 952, 953 V. Brown 568, 665 V. Jennings 1637, 1639, 1651 V. Ogden 40, 44, 1314 V. Stock 1695, 1748 V. Walters 44, 254, 1482 Ogdensburgh v. Lyon 482 Ogilvie V. Copeland 433, 438 Ogle V. Ogle 1409 Oglesby v. Bingham 17 93 V. Hollister 1847, 1862, 1864, 1866, 1870 Ogontz Land & Imp. Co. v. John- son 760 O'Herrin v. Brooks 381, 423 Ohio Life Ins. & T. Co. v. Ledyard 1380, 1390, 1486, 1499 Ohmer v. Boyer 295, 302 O'Keefe v. Kennedy 893 O' Kelly V. O'Kelly 1309 Okison V. Patterson 264, 265 Olcott V. Gabert 597, 649, 650, 655 Old Colony R. Co. v. Evans 169 Old South" Society v. Wainwright 384 Oliphant v. Burns 1506, 1560 Olivant v. Wright 616 Oliver v. Brown 339 V. Davy 1413 V. Dix 1040 V. Hawley 1342 V. Hedderly 1835, 1850 V. Houdlet 11 V. Mahoney 326 V. Montgomery 1S53 V. Oliver 1267, 1269 V. Piiitt 1397, 1508 V. Sanborn 1522 V. Stone 1217 Olmstead v. Niles 1603 Olney u. Sawyer 1836,1921 O'Meara v. McDaniel 953, 981 V. North American M. Co. 214, 217, 1007 O'Neal V. Brown 1267, 1269, 1272 V. Pettus 1485 V. Seixas 331, 1396, 1416 O'Neil V. Webster 1112, 1113, 1202, 1203 O'Neill V. Nolan 56 Oney v. Clendenin 1132 Opdyke v. Stephens 338, 381 Opening of Eleventh Avenue, Mat- ter of 449 Oppenheimer v. Wright 1447 Ord V. Ord 1226 Ordinary v. Thatcher 1220, 1222, 1303 Oregon Trust Co. v. Shaw 1424, 1427 Orena v. Santa Barbara 466, 46 7 Orlando v. Gooding 1338 Orme v. Roberts 1408 Ormes v. Beadel 94 Ormond v. Martin 1991 Orr V. Clark 1218, 1220, 1234, 1240, 1245, 1258 V. Hadley 358, 366 V. Hpdgson 165 IK How 244 O'Rourke v. O'Connor 1408, 1566 Orrick r. Durham 1547, 1552 Ort V. Fowler 1335 Orth V. Jennings 1404 O'-thwein i\ Thomas 1814 Ortley v. Messere 12 Orvill V. Newell 1482 Orvis V. Newell 1498 Osborn v. Osborn 1884, 1887, 1892 i;. Bobbins 79, 88, 91 Osborne v. Anderson 324 V. Andrees 1351 V. Atkins 930 V. Endicott 257, 333 V. McMillan 830 V. Tunis 1049 Osgood V. Abbott 619, 678, 688, 708, 715, 724 V. Howard 1693 V. Osgood 962, 96 7 Osmond r. Fitzroy 99 Osterhout v. Shoemaker 53, 1217 Osternian v. Baldwin 167 O'Sullivan v. Overton 1104 Otis V. Beckwith 1220, 1277 V. Browning 1331 V. Cusack 1942 V. Payne 1527 cxxiii TABLE OF CASES. References are to Sections. Otis V. Smith V. Spencer 1637, 1647 1218, 1220, 1247, 1251, 1513 Ott V. Kri'iter 448, 468 Ottnian r. Moak 29 Ottor. Doty 1234, 1236, 1243 Ottumwa Woollen Mill Co. v. Hawley 1637, 1668, 1712, 1713, 1717 Oulds V. Sansoni 1<»26 Ousby V. Jones 411, 412, 414 Outland V. Bowen 230 Overall v. Taylor 1515, 1521 Overand v. Menczer 339, 402 Overhiser v. McCollister 929, 931, 990 Overman v. Kerr 1252 V. Snsser 1666 Overmyer v. Williams 169 Overseers v. Sears 597 Overstreet v. Manning 285, 1390 Owen's Case 573 Owen V. Baker 1130, 1144, 1159, 1164, 1165, 1179 V. Bartliolomew 364, 382 V. Cooper 579, 609 V. Field 628, 631 V. McGehee 1857 V. Morton 1873 V. Perry 1331 t;. Williams 527,1234. 1235, 1272, 1307, 1309 Owens V. Lewis 1600, 1602, 1606, 1609, 1611 V. Miller 1466 Owensboro & N. Ry. Co. v. Grif- feth 691, 718 Owings V. Freeman 390 17. Tucker 1263, 1282, 1448 Owsley V. Owsley 657, 723, 726 Oxford V. White 323 Oxley V. Lane 660 V. Tryon 2 Oxnard f . Blake 1289, 1296 V. Proprietors 1936 Oxton V. Groves 448, 455, 463 Pace V. Pace 664 Pacific Manuf. Co. v. Brown 1532 Pacific R. Co. r. Seely 178 Pack V. Hansbarger 1404 Packard v. Johnson 1862, 1866, 1871, 1404 V. Ames 627, 632, 637, 649, 650 Packer v. Bird 471, 480, 481 Paddack v. Pardee 412, 414 cxxiv Paddack r. Potter V. Pulsifer Pado-ett V. Cleveland 1217, 1269 99, 100, 101, 103, 110 166S, 1717, 1721, 1746 V. Lawrence 221, 285, 1390 Page V. Branch 1836, 1S74, 1878 V. Edwards 1736, 1741, 1755 V. Fall River, &c. R. Co. 1054 r. Heineberg 169, 170 V. Kendrick 288 V. Lashley 868 i;. ]\Iurray 773,805,811,813 V. Palmer 632, 648, 678, 693 V, Robinson 1 763 V. Ro12 V. Ball 1448 V. Carneal .'512 V. De la Ronde 1372 V. Delaware Co. 16G8 V. Downer 658 V. Forry 1108 V. Langston 1378 V. Lanning 1952 V. Linder 1404 r. Martin 1942,1945, 1947 V. Moore 675, 582 K.Nixon 121,136,138, 140 V. Pease 1085, 1086 V. Snell 1234, 1269, 1289 V. Wabash, &c. Ry. Co. 1102 V. Yancy 861 V. Yeaton 1262 Pattinson v. Luckley 1346 Pattison's Appeal 1600, 1603, 1627 Pattison v. Hull 1619 Patton V. Eberhart 1389 V. Hollidaysburg 1573 V. McFarlane 914 V. Moore 1712, 1716 V. Quarrier 885 V. Rankin 1812, 1814 V. Wagner 1954 Pattv V. Middleton 1525 Patureau v. Wilbert 1912 Paul V. Carver 448, 455, 461 V. Connersville & N. June. R. Co. 728, 1518, 1569 V. Fulton 1527 V. Hoeft 1497 V. Witman 1934 Paxson r. Brown 1485, 1522 Paxton V. Bailey 131 V. Marshall 1196, 1198, 1207, 1447 Payne v. Abercrombie 1515, 1547 V. Atterbury 3^6 V. Bensley 285 V. English 467 V. Mathis 225 V. Parker 816, 318, 1004 V. Pavey 1472 Payson v. Burnham 756, 758, 771, 785, 806, 817 Pea V. Pea 862, 1682 Peabody i\ Brown 219,226 v. Fenton 1387 V. Hcwett 316, 1004 V. Kendall 101 cxxvi Peabody Heights Co. v. Sadtler 448,461,463 V. Wilson 733, 734, 771, 780, 781, 807 Peaceable v. Read 1872 Peachy v. Somerset 732 Peacock v. Monk 297 V. Penson 778 V. Pulvis 1627 V. Tompkins 1178 Peak V. Swindle 1952 Pearce v. Dansforth 1290 V. Moore 122, 140 Pearl v. Hervey 1414 V. McDowell 52 Pearne v. Coal Creek Co. 534 Pearson v. Carlton 1891, 1892 i\ Cox 54 r. Davis 1087, 1404 V. Ford 957 V. Hartman 556 V. Howey 1129 V. Powell 1452 Peart v. Brice 323, 339 Pease v. Barbiers 1188 V. Coats 768 i\ Gibson 559 V. Lawson 1065 Peasley v. McFadden 1563, 1566 Peavy v. Tilton 156, 1240 Peay v. Briggs • 398 Peck w. Batchelder 1702 V. Brummagim 42 V. Carpenter 1884, 1887 V. Cary 74, 75 V. Clark 541 V. Conway 756, 771, 777, 780, 782, 784, 798, 823 V. Denniston 448, 449, 453, 464 w. Hensley 923,927 V. Honghtaling 849, 892 V. Lofkridge 1838, 1866, 1868 V. Mallams 310, 1468, 1469, 1472 V. Matthews 814 V. Peek 1837 I'. Smith 448,455,457,461, 542 V. Vandenberg 265, 295, 298, 301 V. Ward 1873 V. Williams 1404, 1975 Peckham v. Hendren 87 V. Millikan 1989 V. Stewart 215 Peden v. Cavins 1986 TABLE OF CASES. References are to Sections. Peden v. Chicago, &c. R. Co. 632, 635 Peebles v. Horton 91) I'. Reading 1513 Peek V. Matthews 773., 8U4 Peet V. Dakota F. & M. Ins. Co. 1668 Peine v. AVeber 1832 Peirce v. Goddard 1691, 1692 Pell V. McEh-oy 1575, 1576, 1578 Pemberton v. Williams 89 Pence v. Arbuckle 1199, 1331, 1335 V. Armstrong 324 V. Diivall 928, 968 Pendill v. Marquette County Ag. Soc. 991 Pendleton v. Button 1136 V. Pomeroy 1239 Penfield v. Dunbar 1527 Penhallow y. Dwight 1627 Penman v. Hart 1463 Penn v. Cox 1781, 1793 V. Garvin 1126 V. Glover 893 Pennel v. Weyant 1288, 1289 Pennell v. Felch 621 Penniman r. Hartshorn 1002 Pennington v. Flock 323, 400 V. Pennington 1252, 1268, 1271 Pennock V. Coe 1729 v. Hoover 1431 Pennsylvania Co. v. Dovey 1218 Pennsylvania Mut. Ins. Co. v. Semple 1712 Pennsylvania R. Co. v. New York & L. B. R. Co. 471 Pennsylvania R. Co. v. St. Louis, &c. R. Co. 142 Pennsvlvania Salt Manuf. Co. v. Neel 265, 294, 307, 309, 1423, 1464 Penny v. Corwithe 1356 Pennybecker v. McDougal 16 78 Penry v. Richards 381, 424, 425, 431, 432, Peoples V. Bartels 1127, 1128 People V. Bostwick 1303, 1314 V. Bristol 1453, 1469 V. Brown 725 V. Canal Appraisers 471, 481, 484 i;. Collins 1122 V. Conklin 166, 16 7 V. Fire Association 1H3 V. Folsom 16 7 V. Galloway 1196 People v. Gilon 871 V. Henderson 491, 492 V. Jones 472, 480, 481, 484 488, 490, 499, 501 V. Kellogg 451 V. La Rue 169, 176 V. Lunipke 323 V. Madison Co. 478, 484 V. Manning 674 V. Mayor of New York 13S V. Miller 992 I'. Murray 1002 t'. Muzzy 1340 V. New York & L. I. Ferry Co. 470, 471 V. Organ 1328 V. Reed 449 V. Rogers 164 V. Schermerhorn 409 V. Snyder 1130, 1238, 1248, 1447 V. Society for Propagation of the Gospel 694, 696, 711, 723, 728 V. Stahl 354 V. Storms 1436 r. Supervisors 488 V. Tibbetts 471, 472 V. Vanderbilt 4 71 People's Building & Loan Asso. v. Billing 1807 People's Gas Co. i'. Tyner 1598, 1599 Pepin Co. v. Prindle 638, 656, 658, 684, 718 Pepper's Appeal 1420 Pepper v. George 1532 V. Haight 133 Pequawkett Bridge u. Mathes 106 7 Percifull i'. Piatt 244, 245 Percy f. Milhiudon 1904 Perdue v. Aldridge 1380 Pere Marquette Boom Co. v. Adams 492 Pereau v. Frederick 1205, 1342, 1350, 1448 Pereles r. Magoon 445 Perkins, In re 52 Perkins v. Aldrich 536 V. Carter 1194 r. Coleman 933 V. Dilfble 254 V. Gay 356, 358, 36 7 V. Perkins 48 V. Stock well 503, 559 V. Strono; 1451, 1472, 1479 V. Swank 1390 oxxvii TARLE OF CASES. References are to Sections. Perkins v. West Perli-y v. Chase IVrininter r. :McDaniel Pernain v. Woad Pen-in r. Blake V. Railroad Co. V. Heed Perry r. Burton V. Carr 1563 1G28 1331 381 601, 602 448 1458 1108 1708 V. Central So. R. Co. !>48 V. Clark 322, 847 V. Pennsylvania R. Co. 548, 1637 ?;. Porter 1220 r. Price 265,266,267,312 V. Scott 337, 339, 349, 409, 643, 649 Person r. Chase 13 Peru Iron Co., Ex parte 181 Peter v. Russell 1580, 1582 V. Stephens 18G6 V. Wri-ht 1315 Peters v. Bowman 903 V. Cartier 1396 V. Clements 154 7 V. Farnsworth 1033 V. Goodrich 1482 V. Grubb 858, 909 V. Ham 1436, 1499 V. McKeon 968, 970, 981 V. Westborough 744 Peterson v. Fowler 1963 V. Horn blower 1415 V. Kil: Coffman 1619 Pray r. Pierce 313, 1380 V. Stebhins 1793, 1802, 1803, 1811 Preachers' Aid Society v. England 593 Preble r. Baldwin 295, 305, 864 Prentice r. Acliorn 74 Prentice c. Duluth Storage Co. 1371, 1394, 1435, 1445 V. Janssen 1900, 1901 V. Northern Pac. R. Co. 325, 411 I'. Stearns 325, 326 Prentiss v. Brewer 338 Presbrey v. Presbrey 1819 Prescott V. Beyer 1383 V. Hawkins 335, 35S V. Hayes 310, 1122 V. Nevers 1866, 1879, 1880 V. Prescott 616 V. Trueman 852, 873, 875, 930, 950, 953, 96 7 V. Williams 878 Preston r. Boston 87, 89 V. Bowmar 395 V. Brant 1970 V. Breckinridge 138 V. Briggs 1767 V. Evans 1112 V. Fryer 40 V. Hull 1328, 1329 r. Nash 1386, 1563 V. Robinson 322, 1819 V. Ryan 1G2 7 V. Wright 1855 Prettyman v. Goodrich 1296, 13.")1 Prewit V. Wilson 281, 291 Prewitt V. Ashford 990, 1324 Pribble v. Hall 1182, 1204 Price V. Bell 1563 V. Berrington 68, 69, 73 V. Bray ton 1613 V. Deal 928, 943, 944, 974 V. Ferguson 338 V. Furman 23, 31, 33 V. Hall 1866, 1870, 1881 V. Haynes 1085 V. Hudson 1217, 1218, 1220, 1226, 1254, 1267, 1314 V. Jenks 1712 V. Jennings 5, 13 V. McDonald 1109, 1442, 1478,1511,1521,1522,1554 V. Malott . 1699 V. Martin 1531 V. Parker 12S4 V. Pittsburgh, Ft. W. & C. R. Co. 1304, 1307, 1324 V. Pollock 2(;i V. Sisson 579 '■• Taylor 612, 613 ('. Thompson 452 1'. Weehawken Ferry Co. 1748 V. White 1501 cxxxi TABLE OK CASES. References are to Sections. Priebard r. Atkinson 881, 882, 879 V. Sharp 80 Pridgen r. Pridgen 1094 Priest V. Cunimings 8, 1196 r. Rire 1407, 1408 Prignon v. Daiissat 281, 282, 1291) Primm c. Raboteau 495 r. Walker 485, 1977 Primrose r. Browning 157(1 Prince r. Blackburn 1106 I'. Boston 872 v. Case 1488, 1736, 1745 Princeton M. Co. v. First Nat. Bank 163 Pringle i\ Dunkley 659 V. Dunn 1109, 13 71, 1435 1441, 1442, 1451, 1469, 1481, 1522, 1529, 1531, 1532, 1540, 1547 Printup r. Mitchell 1367 V. Turner 244 Prior V. Scott 400 V. Swartz 475 Pritchard r. Bailey 660, G62 V. Brown 303, 1563 I', James 583, 584 V. Kalamazoo College 1426 V. Young 358 Proctor r. Pool 326, 381 Prodiiers v. Langhara 283 Prosser v. Edmonds 290 Prout V. Wiley 21, 24 Prouty V. Edgar 2 Provart v. Harris 1267 Provident Life & T. Co. v. Fiss 937 Provost V. Calder 531 Prudden v. Railroad Co. 449 Pruitt r. Ellington 1925 V. Holly 1846 Pruner v. Bisbin 389, 434, 439 Prutsman v. Baker 1234, 1267, 1271, 1303, 1307, 1309, 1312 Pry V. Pry 323, 1353, 1379 Pryor v. Coulter 1040 Pryse v. McGuire 892, 903 Puckett V. McDaniel 1866, 1879, 1968 V. Reed 1568 V. Smith 1884 Pugh V. Mays 694 Pullan V. Cincinnati & Chicago Air-Line Co. 145, 1729 Pullen V. Bell 1693 Pulvertoft r. I'ulvertoft 293 Purcell V. Enright 1566 V. Goshorn 316, 318, 1182, 1212 cxxxii Purcell V. Wilson 1877 Purczcll V. Siuidt 166 Purdy r. Huntington 1420, 1423, 1424,1127,1428,1462,1467 Purkiss V. Benson 448 Purner v. Piercy 1616, 1620 Purviance v. Jones 1269 Pusey V. Desbouvrie 356 Putnam v. Bicknell 40, 44 V. Gleason 602 V. Putnam Machine Co. 367 V. Stewart 489 V. Tuttle 559 r. White 1417 V. Wise 1927 Putney v. Day 1603 V. Dresser 1780 V. Farnham 305 Fyerv. Carter 1663 Pyle r. Cravens 4, 1023 V. Oustatt 1361, 13G5 r. Pennock 1668 Pynchon v. Stearns 516, 565, 6 70 Quackenboss v. Lansing 735 Queen v. St. Paul 1064 Quick V. Milligan 1292, 1314, 1316, 1317, 1318, 1575 V. Nitschelm 358, 366 V. Taylor 873, 880, 882 Quigley «. Birdseye 16 7 Quinby v. Manhattan Cloth & Paper Co. 1668, 1670, 1672, 1717, 1721 Quincy v. Ginsback 1423 Quinn v. Heart 389, 431 V. Logan 1460 Quinnerly v. Quinnerly 1501 Quinrim v. Reimers 424 Quirk V. Thomas 1528 Rabsuhl v. Lack 295 Racine v. Case Plow Co. 431 V. Emerson 371, 466 Rackleff v. Norton 1130, 1133, 1134, 1167 Rackley v. Chesnutt 599 Racouillat w. Rene 1439, 1547 V. Sansevain 167, 1026, 1439, 1478 Radford v. Edwards 338, 344 i;. Willis 678 Radich v. Hutchins 81 Rafferty v. Mallory 1547 . Ragan v. McElroy 175, 1887 Ra"-o-en ?i. Avery 1086 Radand v. McFall 1054 TABLE OF CASES. References are to Sections. Ragsdale v. Kobinson 337, 1331, 1335 V. Vicksburg & M. R. Co. 706 Railway Sav. Inst. v. Irving St. Baptist Church 1 702 Railroad v. Koontz 181) Raih'oad Co. l\ Schurmeir 481, 489, 490, 491, 492 v. Beeler 625 Raines v. Calloway 945 V. Walker 1109, 1238, 1442 Rainey v. Chambers 643 Rains i\ Ranis 391 Rake v. Lawshee 37 Raleigh Nat. Bank v. Moore 1589 Raley v. Umatilla Co. 619, 623, 632, 650, 718, 731 Ralls V. Graham 1384 Ralphsnyder v. Ralphsyners 646, 726 Ralston v. Tiirpin 75, 97, 103, 104 Ramage v. Ramage 1041 Ram berg V. Wahlstrom 1835, 1836, 1841, 1852 Ramolsberg v. Mitchell 245 Ramires v. Kent 167 Ramsey v. Jones 1484 V. Riley 1480 V. Wallace 968 Rand v. Cartwright 381, 384, 398, 435 V. Davis 1534 Randall v. Burk Tp. 439 V. Elwell 1729 V. Errington 162 V. Ghent 266 V. Gill 379, 381, 443 V. Latham 550, 551 V. Marlde 659, 6 74 V. Phillips 1824 V. Randall 555 V. Sanders 739 V. Silvertliorn 1563, 1569 V. Van Vechten 1080 Randell i'. Malktt 975 Randolph i\ Gwynne 1717 V. New Jersey W. L. R. Co. 1483 V. W. &c. R. Co. 148 Rangely v. Sjjring 256 Rankin v. Iluskisson 733 V. Kinsey 1628 V. Wallace 292, 295, 296 Rannells v. Gerner 52 Ranney v. Hardy 1489, 1563, 1564, 1568 Ranney v. Ilogan 1406 Ransier v. Yanorsdol 1346 Ransom v. High 1958 V. Ransom 40, 41 V. Stonington Sav. Bank 1080 Ranstead v. Ranstead 1908 Rapid Transit Land Co. v. Sand- ford 29 Rardin v. Walpole 962 Rash V. Jenne 950, 968 Ratcliff V. Teters 1052 Ratcliffe v. Dougherty 40, 44 V. Marrs 565, 568, 569 Rathbun v. Gecr 364, 417 V. Rathbun 1292, 1296 Ratliff V. Burleson 389, 433, 440 Ratteree v. Conley 1513 Rau V. Von Zedlitz 88 Ranch V. Oil Co. 1080 Raun V. Reynolds 1908 Rawlings v. McRoberts 1232 Rawson v. Fox 1240, 1241 V. Putnam 128 V. School Dist. 623, 635,643, 649,650, 654, 655, 741 Ray V. Durham Co. 599 V. Wilcoxson 37, 1258, 1259, 1380, 1382 Rayburn c. Davisson 1563 V. Winant 414, 492 Raymond y. Coffey 326,339,389, 398, 410 I'. Fish 6 75 V. Morrison 1396 V. Raymond 842, 843, 861, 901 ?•. Smith 1303, 1304 Raynor v. Lyon 779 V. Wilson 1259, 1489 Rea V. Bishop 31, 6 7 V. Minkler 879, 892, 910 Read r. Allen 1937 V. Foo;g 602 V. Hilton 602 V. Huff 1963 Ready v. Kearsley 223 Real V. Hollister 842, 892, 903, 919, 928, 932 Real Est. Sav. Inst. v. Collonious 1559 Reamer v. Nesmith 326, 338, 339, 342 Reams ?'. Spann 1935 Reardon v. Murphy 760 Reasoner v. Edmundson 1445, 1464 Reast V. Donald 379, 440, 442 Reaume r. Chambers 575, 587, 589 cxxxiii TABLE OF CASES. References are to Sections. Reavis v. Keavis 1259 Rebeckah, The 419 Reck c. Clapp 1020, 1521 Recoils V. Yoan. Davis 178 Reorganized Church v. Church of Christ 182, 183, 190, 192 Repp V. Repp 1390 Resor v. Ohio & M. R. Co. 1303 Respass v. Breckenridge 1997 V. Jones 1340, 1382 Resser ?;. Carney 842, 914, 956, 979, 997, 998 Reubens v. Joel 303 Reusens v. Staples 1074, 1148 Rex V. Creel 903, 915 ('. Yarborough 485 Rexford v. Marquis 489, 551 V. Rexford 1177 Reybold v. Dodd 1908 Rcynal, Ex parte 1748 Reynolds v. Boston Rubber Co. 338 V. City Nat. Bank 44 V. Cleary 805 V. Crawfordsville Bank 175 V. Glasgow Academy 1072, 1079, 1080 V. Kingsbury 1178, 1182, 1183, 1435 v. Kirk 1563 V. Lansford 42 V. McCurry 31, 33, 35 TABLE OF CASES. References are to Sections. Eeynolds v. Pitt 732 V. Reynolds 1955 V. Ruckmaa 1541 V. Shaver 89(5 V. Stark Co. 141, 169 V. Strono; 1792 V. To we 11 527 V. Waller 76 f. Wilmeth 1887 Rhea v. Swain 943, 968, 982 Rhine v. Ellen 295, 303 r. Robinson 1248 Rhoades v. Canfield 1496, 1588, 1590 v. Selin 1143 Rhoads v. Frederick 1338 Rhode c. Alley 828, 853 c. Loiuhaiu 1014, 1021 Rhodes v. Bate 103, 104, 115 V. Gardiner School Dist. 1314 V. Green 1527, 1528 V. Outcult 1511 Ricard u. Williams 367, 186 7 Rice V. Adams 1717 V. Boston & W. R. Co. 696, 707, 728. 729, 808 V. Dewey 1484, 1581, 1748 r. Peacock 1185, 1186 V. Rice 1853, 1854 v. Ruddiman 492, 496, 501 Rich V. Bray 1868 V. Minneapolis 448 V. Rich 1887 v. Zeilsdorff 503, 559 Richard v. Bent 869, 930, 931, 933, 962, 96 7 V. Boiler 1066 Richards v. Downer 99 V. Iowa Homestead Co. 974 V. Kni"ht 1631 V. McClelland 39 V. Merrimack, &c. R. 142, 412 t'. Randolph 1146 V. Revitt 773, 780, 805, 823 V. Richards 1846 V. Snider 334, 364 V. Vanderpoel 79, 81, 85 Richardson r. Bates 1086 V. Biixelow 1(;52 I'. Borisrht 27, 29 V. Chickering 364 V. Clow 302, 303 V. Copeland 1733, 1734, 1735, 1746 V. Dorr 962, 96 7 V. Duncan 79 V. Grays 1220, 126 7 Richardson v. Koch 1722 c. Levi 1396 c. Palmer 324, 416, 45 7, 517, 529, 530,542 V. Pate 8, 9, 25, 26, 33 V. Scott River W. & M. Co. 1080 r. Sibley 145 r. Tobey 799 r. York 525 Richman i: Baldwin 1940 Richmond's Appeal 103 Richmond r. Ames 958, 963, 986 r. Gray 215 Richmond Manuf. Co. v. Davis 1328, 1354 Richmond Manuf. Co. v. Mor- ford 1248, 1303 Richter v. Richter 624, 718, 722, 730 Richwine v. Jones 399 Rickard v. Rickard 1963 Rickert i: Snyder 842, 927 Rickets v. Dickens 834 Ricketson c. Richardson 1555 Ricketts i-. JoUiff 58, 67 V. Louisville, &e. Ry. Co. 666, 708 Ricks V. Pulliam 582 V. Reed 1109 Rico V. Brandenstein 40, 42 Rico, R. & M. Co. V. Musgrave 1899 Riddle V. (ieorge 1587 V. Littlefield 351, 1649 Riddlesburg L'on, &c. Co. v. Rog- ers 431, 432 Ridgelev v. Crandall 2 Ridgely"w. Howard 1196, 144 7 Ridgeway v. HoUiday 139 7 r. Lanphear 583, 604, 606 Ridgeway Stove Co. v, W^ay 1702 Ridgway v. Ludlow 484, 491, 492, 496 Ridler v. Ridler 12 Ridley v. McGehee 1453 Riecke v. Westenhoff 1196, 1197, 1201 Rieman /■. Baltimore Belt R. Co. 448, 463, 464 Kifener v. Bowman 1346 Ri'Igan v. Green 54, 68, 69 Riggin V. Love 562, 563, 564, 568, 580, 602 Riggins V. McClellan 602 Riggs V. Boy Ian 1472 V. Dooley 1866 V. Fisk 20. 21 Right V. Bucknell 258 CXXXV TABLE OF CASES. References are to Sections. Ei'jjliter r. Forrester 1404, 1408 lliolitsoll r. Hale 534 Riglor r. Cloud 11(32, 1292 r. Lio-lit 15SS Kilov r. C.ri'lHu 389, 435 v. lloyt 148G, 1517 i: Qingley 15(55 V. Wilson 42, 43 Rindskopf c. Farmers' L. & T. Co. 932, 9S7 Rinehart r. Rineliart 861, 895 Rines v. Mansfield 562, 563, 56 7 Ring V. Burt 44 V. Jamison 16 V. Steele 1504 Ringgold V. Bryan 1511, 1563 V. Waggoner 1514 Rioux V. Cormier 401 Ripley v. Babcock 56 V. Harris 174, 1436 V. Paige 1709 Rippetoe v. Dwyer 1840, 1844, 1852 Ripple V. Ripple 1513 Risley ?;. McNiece 637,643,646,730 Ritchie c. Griffiths 1469, 1470, 1471, 1481 V. Kansas, &c. Ry. Co. 625, 679, 717, 718, 732 V. McAllister 1665 Ritcbmyer v. Morss 1691 Ritter v. Bell 81 V. Ritter 1217 V. Worth 1446 Rittmastor o. Brisbane 1217, 1276, 1283. 1289 Rivard c. W^xlker 156, 1240, 12G7, 1276, 1277, 1297, 1282 Rivas V. Summers 1963 Riverview Cemetery v. Turner 1963 Rix c. Johnson 490 Roacli V. Karr 1534 Roane v. Baker 1220, 1380, 1406, 1409, 1411, 1413 Roane Co. v. Anderson Co. 388 Roanoke Ins. Co. v. Kansas City & S. R. Co. 632, 635 Bobbins, In re 448, 458, 459 Robbins r. Austin 1041 V. Barnes 1644 V. Eaton 29, 158 V. Harris 339 V. Magee 1314, 1320, 1349 V. Spencer 523, 1225, 1235 Roberts v. Bauer 1437 V. Bourne 1371, 1482, 1506 r. Coleman 276, 647 V. Cooper 120 cxxxvi Roberts v. Dauphin Deposit Bank 1717, 1748 V. Deeds 402, 406 r. EUvod 1990 V. Fleming 1559 V. Forsythe 575, 582 V. Grace 14 36 V. Helm 381, 387 V. Holland 1930, 1934 V. Jackson 1254 V. Levy 875 V. Mansfield 1586 V. Moore 1868 V. Morgan 1862, 1866, 1879 V. Moseley 1563 V. Pillow 1064 V. Preston 340, 375 !;. Richards 334, 1371 V. Robertson 521 V. Rockbottom Co. 744 V. Thorn 1840, 1844, 1852 i\ Unger 1363 V. Wisgin 2, 11, 18, 20, 29 Robertson v. Corsett 1668, 1683, 1712, 1717, 1721, 1768 V. Du Bose 214 V. Frank 89 V. Hay 1338, 1340 V. Johnston 617, 618 V. Lemon 943, 968, 983, 984 V. Mooney 387, 389 V. Robertson 41, 44 Robidoux V. Cassilegi 1132, 1165, 1862 Robinius v. Lister 295, 305 Robinoe r. Doe 918 Robins v. Bellas 1320 Robinson v. Brennan 331 V. Coulter 2 V. Crenshaw 1517 V. Doss 326, 384 V. Eagle 1792, 1799, 1802 V. Gould 88, 1220, 1282, 1285, 1292, 1297 V. Hall 959 V. Jones 339 V. Kime 326, 340 V. Lewis 1846, 1848 V. Missisquoi R. Co. 653 V. Myers 1361, 1367 V. Neil 843 t;. Noel 1207 V. Payne 565 V. Preswick 166 7 V. Robinson 1109, 1146 V. Schly 526, 1230 TABLE OF CASES. References are to Sections. Robinson r. Smith 285, 1392 V. Weeks 24, 33 V. Wheeler 1238, 1248 V. White 490, 495 v. Willoughby 1501 Robison v. Codinan 1775 Robson V. Thomas 1159, 1180 Roche c. Roanoke Classical Seuii- naiy 1303 Rochereau v. Delacroix 1501 Rochfonl r. Hackman 664 Rockafeller v. Arlino;ton 521, 522 Rockfonl, R. I. &."^ St. L. R. Co. V. Shunick 1014 Rockhill V. Spraggs 270, 295 Rock Island & P. Ry. Co. v. Dim- ick 1517, 1568 Rockwell V. Adams 364 r. Baldwin 480, 488 V. Brown 263, 300 V. Coffey 1561 V. Elkhorn Bank 144 V. Insurance Co. 337 r. Wilder 1917 Roddy r. Brick 1712, 1717, 1721, 1746 r. Fitzgerald 616 Rodes V. St. Anthony, &c. Eleva- tor Co. 1172 Rodgers v. Burchard 1396 r. Gibson 1402 r. Kavanaugh 1436, 1506 V. McCluer 1238 V. Parker 449 Rodman v. Zilley 76 Rodney r. McLaughlin 1862, 1866 Rodwell r. PhiUips 1616 Roe V. Gemmill 1616 V. Taylor 98 r. Traunier 313 Roebuck r. Duprey 837 Roehl r. Haumesser 323 Rogan V. Walker 619, 732 Rogers r. Adams 90, 1178, 1206 V. Benson 1800 v. Black well 54, 71 I'. Bollinger 449 r. B(jrchard 828 V. Bracken 1021 V. Brokaw 1712, 1713, 1714, 1721 w. Carev 1225,1234,1241,1276 V. Crow 1703, 1704 V. Eagle F. Co. 268 V. Fire Co. 647 V. Frost 1042 V. Golson 968 Rogers v. Gosnell 726 V. Grider 1802 V. Hillhouse 264, 266 V. Hoskins 1513 V. Hurd 2 V. Jones 472, 1510, 1517, 1523, 1544, 1563, 1564. 1565 V. Manley 1172 V. Palmer 1532 V. Peebles 398, 399, 898 V. Place 1009 V. Prattville Manuf. Co. 1668, 1672, 1714 V. Rogers 579, 1258 V. Sebastian Co. 625, 6 74 V. Tucker 1409, 1413 r. Turley 1953 V. Walker 52, 58, 65, 6 7, 70 r. Wiley 1517, 1523, 1524 Roles V. Mintzer 1014 Roll v. Rea 1224, 1506, 1529, 1563 Rolland v. Hart 1499, 1532, 1534, 1538, 1539 Rollins V. Davidson 438 r. Henry 1109 V. Menager 1196, 1197, 1198, 1201, 1204, 1207 V. Riley 268, 693, 715, 722 Rolls V. Miller 766 Roney v. Moss 1112, 1138, 1161, 1188, 1353 Ronnebaum r. Mt. Auburn Cable Ry. Co. 1861 Rood V. Johnston 540 V. Winslow 80 Rooke r. Kensington 249 Rooney v. Michael 37 Roosevelt v. Gardinier 219 Root r. Cincinnati 431, 432, 436, 441 c. Woolworth 1873 Rootes y. HoUiday 1463 Roper V. Williams 773, 804, 805 Ropes f. Upton 595 Rorer r. Roanoke Nat. Bank 1193, 1382 Rorer Iron Co. v. Trout 1529 Rorke v. Lloyd ' 1538 Rose u. Hawley 678, 680, 705, 743, 814 V. Newman 1123 V. Schaffner 935 Roseboom v. Roseboom 1883, 1884. 1887, 1987 Rosenau v. Syring 186 7 Rosenberger r. Keller 958 Roscnkrans v. Snover 552 cxxxvii TABLE OF CASES. References are to Sections. Rosenthal r. Griffin 1180 Kosette r. AVynn 1515 Rosi'ville Altu Min. Co. v. Towa Guloh Min. Co. 1G70, 16.S9, 1717 Ross r. Bedell 10G4 i: Campbell 1220, 1276, 12S2, 12!) 2 V. Conway 103, 106, 115 i: Faust 484, 491 V. Ross 103 v. Tremain 645, 682 1-. Welch 1620 V. Worthington 1441, 1547, 1551 Rosseau v. Bleu 1234 Rosser v. Cheney 1547 Roswald I'. Hobble 310 Roth V. Gabbert 404 Rothenbarger i'. Rothenbarger 1234 Rothschild v. Daugher 1125 Rothwell V. Dewees 1846, 1847, 1SS6 Rountree v. Denson 1836, 1953 V. Lane 1940, 1947 V. Smith 1218, 1277 Roussain v. Norton 1134, 1199, 1447, 1567 Routh i\ Spencer 1484 Rowan v. Portland 449, 450 V. Reed 1986 Rowand v. Anderson 1744 Rowden v. Murphy 1856, 1892 Rowe V. Beckett 135 V. Fleath 840, 858, 860 V. Minneapolis 656, 692 V. Peabody 1989 V. Ream 1563 V. Wave 1021 Rowell V. Hayden 1292 V. Jewett 645, 646, 682, 698, 705, 712, 730, 732 V. Williams 1389, 1499 Rowland v. Miller 733, 765, 806 V. Murphy 1925, 1928 V. Rowland 566, 1782 V. Sworts 1 745 V. West 1738, 1753 Rowletts V. Daniel 313 Rowley v. Berrian 1144 Royal V. Chandler 375 Royal Bank v. Grand Junction R. Co. 1066 Royer v. Foster 96 7, 974 V. Keystone Nat. Bank 285 Rozier r. Johnson 1963 Rublee v. Mead 1563 Ruch V. Rock Island 708, 718, 723, 728 Ruchizy v. De Haven 33 cxxxviii Rucker v. Steelnian 323 Ruckman v. Outwater 1708 V. Ruckman 1220, 1222, 1243, 1247, 1269 Rudd V. Savelli 828 Ruff V. Lind 1515 Rufiin V. Johnson 140 Ruftner v. Hill 383 r. McLenan 1185 Ruffners v. Lewis 1891, 1898 Rufner v. McConnel 845 Rugg V. Ward 335, 338 Ruggc V. Ellis 718 Ruggles V. Bucknor 1143 V. Clare 632, 637, 643 V. First Nat. Bank 1628 V. Lawson 1234, 1272, 1277, 1307, 1309, 1312, 1324 V. Williams 1462, 1466 Ruleman v. Pritchett 1188, 119.5, 1212 Rumery v. McCulloch 1832 Rumsey v. Railroad Co. 471 Rundell i". Lakey 871 Rundle v. Canal Co. 471, 481 V. Spencer 24 Runge V. Sabin 1188 V. Schleicher 1331 Runkle v. Gaylord 1516, 1529 Runnells v. Webber 867, 962, 967 Runyan v. Coster 175, 180, 182 Rupert V. Mark 1517 y. Penner 213,217,331,580, 583 Rushin v. Shields 1286 Rushton ?'. Hallett 542 Rusk V. Fenton 54, 68, 69 Russ V. Ali)augh 990, 999, 1487 V. Perry 867, 930 V. Steel 879, 910, 915 V. Wingate 1143, 1144, 1159 Russell V. Annable 1832 V. Baptist Theo. Union, 1196, 1197, 1205, 1447 V. Beasley 1957 V. Branham 1009 V. Cothn 313, 1104, 1107 V. Doyle 119, 136 V. Mabney 367 V. IMoorc 1566 V. Mver 1600 V. Nail 1383 r. Oliver 216 V. Petree 1514, 1521, 1522 V. Peyton 1363 V. Reed 1350 V. Richards 1682, 1693 TABLE OF CASES. References are to Sections. Kussell V. Russell 1792, 1797, 1801, 1816, 1908 V. Sweezey 1563 V. Texas & P. Ry. Co. 142, 152, 173, 175 V. Theological Union 1197 V. Topping 235, 236 V. Waite 1466 Russum r. Wanser 14 78 Rust V. Mill Corporation 476, 483 c. Rust 1866, 1891 Ruth V. Ford 267, 285, 286 Rutherford i-. Green 1408 V. Jones 1954 V. Stamper 19 79 V. Tracy 326, 327, 381, 420, 423 Rutland's Case 564 Rutland v. Chesson 621 V. Paige 1061, 1062 Rutledge v. Montgomery 126 7 Rutter I'. Small 1868, 1880 Ryan v. Brown 480 V. Martin 239 V. Wilson 412, 414, 525 Ryder r. Cobb 1591 i: Rush 1523 Ryerson r. Chapman 969, 983, 984 Ryerss i-. Wheeler 1942, 1949 Sable r. Brockmeier 953 Sabledowsky v. Arbuckle 48 Sac County Bank v. Hooper 928, 967 Sadler's Appeal 1508 Safford v. AVade 1390 Sailer v. Sailer 1887, 1909 Sainsbury v. Matthews 1619 St. Andrew's Church Appeal 750, 771, 775, 780 St. Andrew's Church v. Tompkins 1493 St. Anthony Falls Water Power Co. V. Minneapolis 533 St. Clair County i\ Lovingston 485, 490 St. Croix Land & L. Co. r. Ritchie 1451, 1468, 1481 St. Felix V. Rankin 1900, 19 79. 1981 St. Helen Mill Co., In re lOSo, 1439 St. John V. Coates 1829, 1924 V. Conger 1458, 1520 V. Palmer 906, 914, 917, 920, 987 V. Spalding 1420, 1429 V. Swain 1631 St. Louis V. Bissell 924, 943, 962, 967, 974 St. Louis c. Missouri Pac. Ry. Co. 424, 485 V. Myers 481 V. Rutz 480, 481 V. Wiggins Ferry Co. 424, 633, 635, 691 St. Louis, &c. Ry. Co. v. Higgins 31 33 St. Louis & S. F. R. Co. v. Foltz 'l84 St. Louis, A. & T. R. Co. v. Prather 1919 St. Louis Bridge Co. v. Curtis 1637, 1647 St. Louis Hospital v. Williams 239 St. Louis Public Schools v. Risley 485, 1082 St. Louis University v. McCune 368 St. Marks F. Ins. Co. y. Harris 1380 St. Paul, &c. R. Co. V. First Divi- sion, &c. R. Co. 492 St. Paul, &c. Ry. Co. v. St. Paul U. D. Co. 710 St. Peter's, &c. Cong. v. Germain 173, 181 St. Philip's Church v. Zion Presb. Church 1080 St. Thomas's Hospital v. Charing Cross Ry. Co. 422 Sale V. Pratt 476 Salem Nat. Bank v. White 1878, 1907 Salinas v. Bennett 1832 Salisbury v. Aldrich 102, 104 V. Andrews 449, 488, 7 70, 1437 V. Great Northern Ry. Co. 454 Salisbury Sav. Soc. r. Cutting 1487, 1488 Sallade v. James 1619, 1632 Salmon v. Huff 1177, 1178, 1180, 1485 V. Vallejo 928 Saltonstall v. Long Wharf 476 Salter v. Baker 1389 V. Jonas 448, 463 V. Kidley 257 Saltmarsh v. Spaulding 143 Salyer r. Romanf 1173 Sammes' Cmsc 573, 5 74 Sample v. Irwin 1125 Sampson v. Easferl.v 262 V. Graham 1688 Samson v. Rose 1628 V. Samson 113 V. Thornton 1289, 1448 Samuel v. Marshall 74 Samuels v. Borrowscale 1112, 1113 cxxxix TARLK OF CASES. References are to Sections. Samuels v. Sholton IKSa, 1179, 1204 San Antonio r. (iould 1056 San Antonio Bnnving Asso. v. Arctic Ice Macli. Manuf. Co. 1738, 1750 Sanborn v. Adair 1464 L\ Cloiigh 335 V. Iloyt 536 I'. Minneapolis 653 V. iMueller 424 V. Rice 381, 387, 448, 733, 735, 756, 758, 763, 771 V. Robinson 1441, 1547 V. Woodman 685, 715, 730, 732 Sanders, In re 579 Sanders v. Devereux 1958 V. Godding 398 U.Robertson 1981,1991,1997 Sanderson v. Berwick-upon-Tweed 893 V. Symonds 1342 Sandilands, In re 1073 Sands v. Church 124 V. Davis 1880, 1882 V. Lynham 166, 16 7 u. Pfeiffer 1764 Sandwich Manuf. Co. v. Zellmer 855, 858 Sanford v. Bulkley 1171, 1176 V. McDonald 355, 357, 367 V. McLean 7 V. Sanford 303, 1936 V. Sornborger 85, 86 V. Tucker 1866 V. Weeks 1568, 1570 San Francisco v. Burr 449 V. Le Roy 4 71 San Francisco & O. R. Co. r. Oak- land 312 San Francisco Breweries v. Scburtz 1768 Sanger v. Craigue 1436, 1469 V. Johns 930 V. Merritt 1945 Sankey v. Hawley 1466 Santa Clara Academy v. Sullivan 182, 188, 189 Santa Clara M. Asso. v. Quicksil- ver M. Co. 401 Sappington v. Oeschli 1404, 1408 Sarbach v. Newell 1981 Sargent v. Hubbard 544, 154 7 V. Parsons 1884, 1887 V. Webster 141 Sarles v. McGee 1489 Sasportas v. Jennings 89 cxl Sasscr V. Herring 376 Sasserath v. Metzgar 846 Sattcrficia r. Malonc 1513, 1520, 1532, 1540 Satterwhite r. Rosser 1568, 1874 Saul v. Dawson 1936 Saulet V. Shepherd 485 Saunders v. Hlvthe 267, 1109, 1238 I'. DJhew 1508 V. FJaiiiken 932, 933, 944 V. Hackney 1006 V. Saunders 582, 599 V. Schmaelzle 331 Saunderson v. Broadwell 271 V. Marr 4 Savage i\ Foster 1580 V. Lee 1235, 1947 V. Mason 793, 799, 877 r. Murphy 289, 290, 291 V. Savage 40, 41, 1958 Savannah v. Georgia 471 Savannah & Memphis R. Co. v. Lancaster 104 9 Savery v. King 108 ('. Turner 103 Saville V. Chalmers 902 Savings Bank v. Davis 1051, 1080 Sawyer r. Adams 1469, 1471, 1479 V. Cox 1049. 1055, 1127 V. Fellows 355, 358, 359 V. Insurance Co. 338 V. Kendall 416 I'. Northan 221 V. Pennell 1454 V. Peters 1262 V. Twiss 1708 Sawyers r. Baker 1578 Sayers v. Collyer 773, 804, 805, 813 V. Wall 44 Sayles v. National Water Purify- ing Co. 1680, 1686 Sayre v. Sheffield Land Co. 918, 928, 956, 990 Say ward v. Thompson 1377, 1531 Scaife v. Thomson 1892, 1902, 1906, 1981 Seammon v. Commercial Union Assurance Co. 187 Scanlon v. Cobb 54, 68, 69 y. Wright 156,157,160,167, 219, 226, 2-28, 1113, Scantlin v. Allison 1884, 1887, 1892 V. Garvin 625, 650 Scarborough v. Smith 1958 V. Watkins 43, 112 Scarlett v. Gorham 1559 Schad V. Sharp 354, 359, 368, o7^ TABLE OF CASES. References are to Sections. Schaeffler v. Miekling 874 Schaferman v. O'Brien 120 Schaffer v. Lavretta 7, 18, 24 Schaidt v. Blaiil 234, 503, 528, 1435 Sclialk r. Kincsley 17(31 Scliallard i-. Eel River Nav. Co. 1082 Scliaper v. Bibb 1668 Scharf V. Moore 37 Scharfenburg v. Bishop 1165, 1174 Scharman i'. Scliarinan 1563 Schattler v. Cassinelli 402 Schee r. McQiiilken 261, 1989 Scheerer r. Cuddy 1563 Sclieetz V. Fifzwater 629, 649 Sclieible r. Hart 364, 367 r. Slagle 944 Sebeifele v. Schmitz 1712, 1717, 1721 Schell V. Stein 1468, 1472, 1479 Schenk v. Evoy 404 Scliernierhorn v. Negus 660, 662 Schillinger v. ^McCann 303 Scliintz V. McManamy 1331, 1333, 1334, 1335, 1353 Schipper v. St. Palais 650 Schi?sel V. Dickson 1853, 1854, 1989 Schleicher v. Catlin 1180 Schlesinger v. Kansas City, &c. R. Co. 712, 718, 725 Schley i: Blum 434 V. Pullman Car Co. 38, 1177, 1178, 1179, 1180 Schluter v. Harvey 1392 Schmertz /•. Shreeve 1832 Schmidt V. Deegan 1302, 1314 ('. Hoyt 1404 Schmisseur v. Penn 881 Schmitheiiner I'. Eiseman 6 Schmitt V. Giovanari 265 V. Schmitt 1014, 1220 Schneider v. Botsch 366 V. Jacob 449, 452 Schnelle & Q. Lumber Co. v. Bar- low 929 Schuorbus r. Winkle 1939 Schnyder l\ Orr 645 Schoch V. Birdsall 1413 Schoenor /■. Lissaucr 88 Schoenewald r. Rosenstein 326, 336 Schofield /•. If)\va Homestead Co. 849, 929 V. Jennings 219 Scholey V. Mumford 89 School Committee /•. Kesler 1009, 1012 School District v. JEtna, Ins. Co. 1030 V. Lynch 535 School District v. Taylor 1563 School Township v. School Town of Macy 650 Schools V. Rislcy 486 Schoonmaker v. Doolittle 354 Schori i: Stephens 1958 Schrader v. Decker 1197, 1198 Schraeder Min. Co. v. Packer 355, 356 Schramm v. Gentry 1136, 1179, 1180 Schreiber v. Creed 780 Schroeder c. Giirney 1408 Sclirugham v. Wood 1288 Schuff V. Ransom 54, 63, 730 Schuffert v. Grote 1226, 1271, 1275 Schulenberg v. Harriman 708, 723, 725 Schults V. Moore 1127, 1435 Schultz V. Catlin 84, 88 V. Culbertson 88 Schultze V. Houfes 1448, 1527 V. Schultze 165, 1G7 Schumpert v. Dillard 1390, 1393 Schurmeier v. Railroad Co. 452, 481, 492 Schutt V. Large 1504, 1523, 1530 Schuylkill R. Co. v. Schmoele 893 Schwab V. Stoneback 374 Schwalback i: Chicago, M. & St. P. Ry. Co. 625 Schwallback c. Milwaukee & C. P. R. Co. 1575 Schwartz v. Kuhn 127 Schweiss v. Woodruff 1522, 1523 Schwerin v. De Graff " 1014 Schwoerer r. Boylston Market Asso. 784 Scituate v. Hanover 594 Scobell V. Block 16 72 Scobey v. Walker 1217, 1248 V. Waters 2 Scoffins V. Grandstaff 928 Scofield i\ Douglass 1866 V. Quinn 570, 600 V. State Nat. Bank 1 74 Scoles V. Wilscy 1481 Sconce V. Sconce 1887 Scorell V. Boxall 1600, 1603 Scott i\ Buchanan 2, 3, 7, 14, 27 V. Clinton & Spriniifield R. Co. ^ 1729 V. Gallagher 1143, 1563, 1576 V. Guernsey 1886, 1887, 1S92, 1899, 1975, 1986, 1987, 1997 V. McMillan 799, 800 V. M']\Iurran 1402 cxli TABLE OF CASES. References are to Sections. Scott V. Means Iron Co. 375 V. Micliael 521 r. Ne^bitt li)04 r. Pettii^rew 385, 400, 442 V. Scott 27, 30, 274, 292, 123(i, 1248 V. Simons 111)6 r. State 1861 V. Stetler 816 V. Stripe 688, 712, 718 V. Tyler 659 r. Weisburg 383 V. "Whipple 1008 V. Yard 338, 341, 435 Scovil V. Kennedy , 1955 Scovill V. McMahon 632, 635, 637, 647, 649, 656, 675, 704 Scranton i: Stewart 2, 7, 8, 19, 27 Scriven v. Moore 1628 Scriver v. Smith 874, 910 Scruggs r. Bnickin 1071 Scrugiiam c. Wood 1243, 1247, 1248, 1277, 1278, 1292 Scull V. Pruden 341, 351, 399, 421 Seabrook v. Brady 1559 Seagood v. Hone 614 Sea Grove Build, Asso. v. Parsons 1547 Seale v. Soto 1981 Seals V. Pierce 1232 Seaman r. Smith 501 Search's Appeal 307 Searcy v. Hunter 2, 7, 8, 21, 23, 27, 28 Searle v. Galbraith 48 Sears v. Hicklin 104 V. King 424 V. Munson 1908 V. Russell 593 V. Sellew 1836, 1892 V. Taylor 1689 Seaton v. Hixon 324 V. Son 1879 Seaver v. Phelps 54, 70 v. Spink 1380 Seavey v. Jones 1642, 1662 Sebastian v. Keeton 366 Seckler v. Fox 844 Second National Bank v. Swan 1633 Second Reformed Presb. Church V. Disbrow 664, 6 70 Second Universalist Soc. ?;. Dugan 656 Seddon v. Senate 893 Sedgwick v. Hollcnbeck 893, 903 V. Laflin 575, 590 Seeberger v. Campbell 1403 Seebold v. Shitler 650 cxHi Seedhouse v. Broward 1714, 1748, 1752 Seeger v. Pettit 1668, 16 73, 1703 Seeley v. Price 103 Seerly v. Sater 48 Seevers r. Delashmutt 1389 Segar v. Babcock 335, 336, 388, 397 Seibel v. Bath 1559 V. Rapp 1238, 1243, 1258, 1259, 1288 Seiber v. Price 79 Seitzinger v. Weaver 837, 841 Selby V. Jackson 58, 68, 69 Sellars v. Fiiedman 1963 Selleck v. Starr 122 Sellers v. Sellers 1010, 1476 Selover v. American R. C. Co. 1212 Semon v. Terhune 1479, 1487 Semple v. Miles 1380 V. Whorton 848, 943, 944, 948 Seneca Nation v. Hugaboom 341, 381, 391 V. Knight 488, 490 Sergeant v. TngersoU 1508 V. Stcinberger 1781, 1793 Serrano v. Rawson 424 Sessions i\ Reynolds 120 V. Sherwood 1301, 1448 Severance v. Kimball 79 Severn's Case 832, 833 Severy v. Central Pac. R. Co. 463 SewaH v. Haymaker 1382 Sewall Co. V. Boston Water- Power Co. 476 Seward v. Jackson 288, 289 Sewell V. Angerstein 1703 V. Holland 1563 V. Sewell 7 Sexsmith v. Jones 1475 Sexton V. Breese 1619, 1627, 1628, 1634 V. HoUis 380 V. Wheaton 290 Seymour v. Carter 874 V. Darrow 1522, 1555 V. McKinstry 1563, 1566, 1575 V. Prescott 85 V. Ricketts 1963 V. Slide & Spur Gold Mines 175, 190 V. Wilson 285 Shaber i'. St. Paul Water Co. 799 Shackelford v. Hall 659 Shackelton v. Sebree 74, 527, 1235 Shacklett v. Ran son 830 TABLE OF CASES. References are to Sections. Shade v. Oldroyd 646, 700 Shaffer v. Greer 841 V. Hahn 324, 326, 355, 367, 381, 1048, 1053, 1082 Shaller v. Brand 1159, 1192 Shalters v. Ladd 616 Shanahan v. Perry 856 Shank v. Butsch 1010 Shankland's Appeal 664 Shanks v. Lancaster 1027, 1041 Shannon v. Hall 1485 r. Pratt 536 .Share v. Anderson 1129, 1134 Sharington c. Strotton 263 Sharon v. Davidson 1937 V. Gager 86, 88 Sharon Iron Co. v. Erie 638, 6 78, 699, 706,707, 718,731 Sharp V. Blankenship 375 v. Cheatham 799, 1394 V. Hamilton 1159 V. Ingraham 1919 V. Lumley 1559 V. Robertson 11, 13 V. Ropes 773, 7 74 V. St. Sauveur 163 V. Shea 1406, 1408 V. Thompson 338, 416, 418, 531 Sharpe v. Davis 1529 V. Foy 1539, 1580 V. Orine 1159, 1165, 1179, 1363, 1366 r. Me Pike 112 Shattuck r. Hastings 620, 708 r. Lamb 914, 915, 987 r. People 1144 Shaul V. Rinker 6, 34 Shaver v. Woodward 1466 Shaw V. Bisbee 895 V. Boyd 31 I'. Etlieridge 1663 V. Hayward 1299, 1307 V. Hearsey 1803 V. Hunt 218 V. Lenke 1703 V. Loud 223, 225 V. Newsom 15S6 V. Shaw 97, 115 V. Tracv 290 V. Wilkins 968 V. Williams 303 V. Wilshire 1466 Sheafe v. Wait 404 Sheafer v. Sheafer 718 Sheaffe u. O'Neil 166,16 7 Shearer v. Ranger 867 Shearer v. Winston 1963 Shed y. Shed 1271 Sheehan v. Davis 1049, 1070, 1082 Sheeliy v. Miles 215 Sheets V. Selden 1080, 1643, 1652 I'. Sweeney 354, 358, 366 Sheetz r. Lons;lois 921 Sheffey v. Bank 1499, 1500 v. Gardiner 907, 968 Sheffield Build. Soc. v. Harrison 1715 Sheffield Land, &c. Co. i: Neill 1292 Shelby v. Burtis 1196, 1198 V. Chicago, &c. R. Co. 515, 551 V. Tardy 1303, 1305 V. Teris 338 Shelden v. Erskine 1245, 1824 Sheldon v. Atkinson 364 r. Cox 1537,1538 V. Edwards 1753 V. Eickemeyer, &c. M. Co. 1054 r. Holmes 1420 V. Newton 2 r. Strvker 1159, 1180 Shell V. Havwood 1679 V. Walker 1836 Shelton's Case 1218 Shelton v. Armor 1066 V. Aultman & Tavlor Co. 1123, 1196, 1198, 1202, 1203, 1204, 1205, 1206, 1207 V. Bone 437, 441 V. Deering 1342 r. Ficklin 1712,1714 V. Maiipin 386, 424 V. Pease 840, 841 V. Shelton 257 Shelz f. Shreck 1794 Shenk v. Phelps 79 Sheorn v. Robinson 1563, 1564 Shepard v. Carriel 1177, 1178 V. Hunsacker 1396 V. Philbrick 1627, 1628, 1630 V. Richards 1825, 1884, 1885, 1887, 1917 V. Rinks 1942, 194 7 V. Shepard 40, 44, 1513 Shepardson c. Potter 113 Shephard v. Little 303 Shepherd v. Burkhalter 1438, 14 72 V. Jernigan 1977 V. Nabors 617 V. Nave 381 cxliii TABLE OF CASES. References arc to Sections. Shepherd v. Orleans Cotton Press ^ Co. 1372 Shei)ley r. Atlantic, &c. Co. 145 Sheppanl v. Allen 814 V. Gilmoi-e 713 r. Hunt 5o2 r. Wilniott 427 , Shepperson r. Sbepperson 43 Sherman t'. Ballou 1917 r. Dodge 726 • V. Fitch 1080 ' V. Hastings 363 V. Kane 354 i V. McKeon 448 ij. Willett 1619,1624,1628, 1630 V. Williams 893 Sherry v. Gilmore 244 V. Picken _ ^ 1620 Sherwood v. American Bible Soc. 169, 189 V. Merritt 1349 V. Moelle 1398 V. Waller 125 V. Whiting 326, 413, 420 Shewalter v. Pirner 175, 326, 327, 381 Shields V. Delo 513 V. Netherland 1196, 1197, 1204, 1212 Shiels?;. Stark 1821, 1891, 1892 Shimcr v. Mann 579, 583, 602, 604, 605, 610 Shinn c. Roberts 619 V. Shinn 1529, 1793, 1812, 1814 Shipley v. Bunn 2, 10 Shipman v. Furniss 98, 103, 112, 114, 116, 117 V. Horton 10 Shirk V. Shultz 33 V. Thomas 1380, 1404, 1408 Shirley v. Ayres 1307, 1314, 1321, 1324 V. Bnrch 1331 V. Fcarne 1104 Sliiriock c. Sbirlock 580 Shirras *;. Caig 285, 1454 Shively v. Howlby 419, 470, 471, 472, 473, 475, 480, 485 Shivers v. Hand 1996 V. Simmons 1196 Shoemake v. Smith 1532 Shoemaker v. Chappell 1547 V. McMonigle 320, 402 Shoenberger v. Hackman 1 303 Sholl V. German Coal Co. 538 cxliv Sboiik r. Brown 1215 Sliontz V. Brown 274, 830 Shore v. Miller 338 Short V. Battle 285, 1390 V. Conlee 1163 V. Foglc 14 99 V. Terry 584, 613, 61.^) Shortall v. Hinckley 119, 120 Sborthill V. Ferguson 981 Shortridge v. Catlctt 1063 Shotwell V. Harrison 336, 1521, 1529 i: Matthews 1422 Shove V. Larsen 1451 V. Pincke 313 Shovers v. Warrick 1220, 1277 Shrader 2'. Decker 1196 Shraeder M. & M. Co. i'. Packer 367 Sbrawder v. Snyder 1215 Shreck v. Pierce _ 828 Shriver v. Shrlver 805 Sbrock V. Crowl 13 Schroder v. Kellar 1182 Shropshire r. Behrens 1079 Shroycr v. Nii-kell 1212, 1792 Shryock v. Cannon 1170, 1182, 1185, 1194 V. Waggoner 1402, 1404 Shuart v. Taylor 17G8 Slmbert v. Winston 1209 Shuetze v. Bailey 1021 Shufeldt V. Spaulding 424 Slmford v. Alexander 33 Shnlman v. Fitzpatrick 309 Shultz w. Moore 1109,1143 V. Young 324 Shumaker r. Johnson 992 Shumway i\ ilolbrook 1865 V. Phillips 918 Shurtleff v. Francis 1220, 1233, 1234, 1267, 1269, 1271 V. Millard 31 Shutt V. Rambo 616 Sibley v. Alba 1862 V. Holden 448, 461, 463 V. Johnson 1185 D. Leffingwell 1510,1511, 1563 Sicard v. Davis 1109 Siceloif V. Redman 602 Sickles V. Carson 86 Sidders r. Riley 861 Sidle V. Maxwell 1380 Sidney v. Clarkson 778 Sidwell y. Birney 1130,1133 Siglar I'. Van Riper 1871, 1919, 1936 Sigourney r. Lamed 1435 V. Munn 1542, 1547 TABLE OF CASES. References are to Sections. SigwortL V. Merriam Sikemeier v. Galvin Sikes V. Showers V. Work Silberberg v. Trilling Silliman r. Cummins Silloway v. Brown Sillyman v. King Silsbury v. McCoon Silvarer v. Hansen 1404 1970 410, 423 1827 1627 1212 873, 1922 1524 1692 357, 358, 359, 366 Silver Creek Cement Co. v. Union Lime Co. 368, 399 Silver Lake Bank v. North 186, 190 Silverman v. Loomis 889 Silvey V. McCool 448 Simanovich r. Wood 861, 951 Siramerman v. Songer 97 Simmons r. Cloonan 1654 V. Fuller 1436 V. Havens 1108 V. McElwain 40, 44 V. Nahant 1865 V. Rudall 1359 V. Simmons 1218, 1248 V. Spratt ■ 234 V. Winters 1643, 1649 Simmons Creek Coal Co. v. Doran 442, 1543, 1544, 1564, 15'i8 Simms r. Barefoot 88 V. Hervey 223, 1331, 1333, 133 7 Simon's'Estate 1303 Simon ;•. Sewell 1435, 1453 V. Simon 109 Simons v. First Nat. Bank 1390, 1546 V. French 487 V. McLain 1770, 1773, 1782 V. Pierce 1738 Simonson v. Falihee 1451, 1468, 14 72 Simonton v. Cornelius 1783, 1792, 1802 V. Thompson 381 Simpkins v. Rogers 1625 V. Wells 442 Simpkinson v. McGee 1482 Simpson v. Amnions 1777 V. Bank 1316, 1318 V. Belvin 968 V. Blaisdell 324, 334, 375 V. Del Hoyo 1316, 1318 V. Gardiner 1853 V. Hinson 1521 V. King 326 V. McGlathery 1324 V. Master son 1721 Simpson f. Mundee 1109, 1442 V. Pearson 1801, 1812 V. Robert 272 Sims V. Bardoner 8, 9, 24, 25, 26, 27 r. Cross 131, 138 V. Everhardt 5, 7, 8, 9, 10, 18, 24, 26, 27, 31 V. Gay 1879 V. McLure 99 V. Ray 44 V. Rickets 40, 44, 45 V. Sims 1108 V. Smith 7, 9, 15, 23 Simson v. Eckstein 255, 256, 257 Sinclair v. Jackson 993 11. Slawson 1451, 1472 Sine V. Fox 898 Singer v. Jacobs 1 521 V. Scheible 1517 Singer Manuf. Co. v. Chalmers 1389 V. Lamb 2, 3, 10, 11,13,17, 21, 22 V. Rawson 88 V Rook 1196, 1198,1206,144 7 Singletary v. Hill 613 Singleton v. Bremar 268 V. Southwestern R. 142 Sinker v. Floyd 931 Sioux City & St. P. R. Co. v. Singer 652, 657, 672, 717, 718 Sipley V. Wass 44 Sirrine v. Briggs 1359 Sisson V. Donnelly 575, 582 V. Hibbard 1684, 1719, 173 7, 1740, 1750 V. Pearson 1365 Siter V. McClanahan 1159, 1498 Sitler V. McComas 1442 Sixth AVard Building Asso. v. Willson 1463, 14 78 Skaggs V. Murchison 1030 Skeate v. Beale 89 Skeele v. Stocker 1584 Skinker v. Haagsma 226, 339, 368 Skinner v. Baker 1217, 1240, 1314, 1319, 1320 V. Crawford 368 V. Dayton 1025 V. Fletcher 1185 V. Fulton 1146, 1151 V. Moye 882 r. Pinney 1112 I'. Shepard 742, 774, 796 V. Wilder 1614 Skipwith V. Cunningham 1217, 1284 V. IMartin 708 TABLE OF CASES. References are to Seetions. Slack r. Dimes 401,404 Slamiing r. Style 45 Slater r. Nason !(!<; V. Kawsoii 84-_>, 84;i, !»-28, 'J42 Slattery r. Scbwannecke 1531, 15;!-2, 15;J4 Slaughter v. Cunningham 2 V. Doc 244 Sliiyton V. Blount 615, 617, 618 Sleeper v. Laconia 484 Slegel V. Herbine 655 V. Lauer 62!) Slice V. Derrick 1945 Slifcr r. Beatos 200 Sloan V. Beel)e 871 r. Bicmillcr 501 V. Frothingham 1.S02 V. Gridcr " 1940 V. Holcomb 1380 V. Lawrence Furnace Co. 507 V. Owens 1119 Sloane v. McConaliy 223, 241 Slockbower v. Kanouse 1963 Slocuiii V. SL'ymour 1600, 1601, 1603 Small V. Clifford 1873 V. Field 44, 46, 1123 V. Rowland 602 V. Reeves 943 V. Small 112 V. Staug 1489 V. Williams 88 V. Wright 518 Sraalley v. Isaacson 1970 Smallman v. Onions 1912 Smallwood v. Lewin 1499 Smiley w. Dixon 1840 V. Fries 323, 367, 400, 896, 978 V. Smiley 1234, 1272, 1307, 1309 Smillie v. Smith 80 Smith's Appeal 339 Smith's Will, Jnre 97, 113 Smith V. Adams 1248 V. Allen 280, 281, 282, 283 V. AUis 1196, 1197, 1204, 1205 V. Ashton 1062 V. Atwood 80 V. Ayer 1532 I'. Baker 1068 V. Barrie 635, 657, 671 V. Benson 1694, 1699 V. Blake 1668 V. Boone 432, 441 V. Boquet 42 V. Bowen 1508 V. Brackett 1584 cxlvi Smith r. Bradley 334, 735, 761, 763 ('. Branch Bank 1380, 1396, 1558 V. Bran nan 723 V. Bryan 1606 ('. Bullock 360 V. Butler 1148 V. Cannell 867, 979 I'. Carmody 319 V. Carney 962, 974 V. Catlin Land Co, 359, 381, 388 V. Chamberlain 1085, 1098 V. Cha[)iiian 1099 V. Chatham 326 V. Clark 660, 662, 66 7 V. Cockrell 1259 V. Collins 602, 604, 609, 616 V. Compton 858 V. Crawford 338, 339 V. Crooker 1342 V. Cuddy 103 r. Dall 1075, 1440 V. Davis 356, 381, 3S9, 868, 959 • V. Dean 40, 44 V. Dickinson 1021, 1035, 1328 V. Dixon 903, 924 V. Dodge 381 r. Dunman 1109 V. Dunton 1532 V. Eason 882 V. Eigcrman 853, 870 V. Elliott 1190 V. Evans 35 V. Faulkner 122, 125 V. Ford 488 V. Forrest 375, 376 V. Gaines 19 70 V. Garden 1133, 1177, 1178 V. Gibson 1566 V. Gillum 214 V. Greaves 323 V. Greenop 1568 V. Hague 1619, 1628 V. Hamilton 354, 359, 366 V. Hankins 602 V. Harrington 631 V. Hastings 602 V. Headrick 376, 388 V. Henkel 30 V. Higbee 551, 555 V. Hodsdon 1562 V. Hosmer 369, 370 V. Howell 1002 V. Hughes 885, 946, 952, 955 V. Hunt 1110, 1171, 1207 TABLE OF CASES. References are to Sections. Smith V. Jackson 1566, 1568 V. Jefts 928, 962, 967 V. Jewett 726, 731 V. Jones 892 V. Jordan 1407, 1408, 1529 V. Kay 104 V. Kerr 1832 V. Keobane 1420 V. Kick! 1340 V. Ladd 549, 505, 555 V. Leighton 959, 1619, 1622 V. Lewis 1846 V. Lindsey 1485 V. Lloyd 845, 883 V. Lock 449 V. Low 346, 351 V. Lowry 1469, 1547 V. McAllister 364 V. McCorkle 354, 359 V. McGowan 1343, 1367 V. McGuire 1197 V. Martin 1651 V. Maryland 471 V. Mayo 14, 16 V. Miller 1565 V. Moodus Water-Power Co. 1652 V. Necrbauer 338, 381, 386 V. Kfiison 1416 V. Nelson 402 V. Nettles 1499 V. Newton 363, 903 V. 0.-iiib /•. Marsh lOlC Stinolilii'ld r. Liille 1010 StiiiiK'tt /■. House 1458 Stiiisou V. AndiTsou 1234, 123(1, 1207, 1271, 1275 r. Doolittle 14 7 7 r. Goer 1111 V. Russell 1144 Stirmau r. Cravens 1087 Stivers v. Home 1397 Stockbridge Iron Co. v. Hudson Iron Co. 503, 507, 508, 555 Stockett r. Taylor 1517 Stockham v. Browning 476, 483 Stockton V. AVeber 622, 6 76 r. Williams 140 Stockton Sav. Bank v. Staples 169 Stockwell r. Campbell 1668, 1702, 1714 V. Couillard 503, 505, 506, 509, 516, 518, 522, 528, 896 V. Hunter 536, 1593, 1651 V. McHenry 1479 V. State 1506 Stoddard r. Gage 962 r. Rotton 1467 V. Sloan 1151 V. Weston 1866 r. Whiting 1416 Stoebler r. Knerr 1814 Stoffel r. Schroeder 1397 Stokes V. Anderson 1220, 1222, 1256, 1269 V. Detriek 1054, 1292 V. Jones 995 i: Riley 1517, 1522 Stoll V. Beecher 381 Stolp V. Hoyt 485, 4.S8 Stone r. Ashley 1022, 1086 V. Augusta 479, 488 V. Brooks 449 V. Clark 334, 338, 364 V. Duvall 1234, 1307, 1314, 1320, 1324, 1386 V. Ellis 71.5, 716 V. French 1236, 1269, 1286 V. Hooker 919 V. Houghton 032, 638, 741 r. King 1266 V. Montgomery 38, 316, 319, 1003, 1164, 1194, 1196, 1198, 1201 clii Stone V. Sledge 316, 317, 318, 1208, 1213 V. Stone 1185 V. Wilbern 49 Stonerv. Ellis 1349, 1359, 1363 V. Rice 492 Stonestreet r. Doyle 1866, 1872 Stoney r. Winterhalter 1224 Stooksbury v. Swan 1150 Stoops V. Blackford 36 Storer v. Freeman 472, 476, 479 V. G. W. Ry. Co. 821 V. Whitman 120 Story V. Johnson 14 V. Marshall 42, 44 V. N. y. Elevated R. Co. 448, 449 V. Saunders 1866, 1919 Stott V. Harrison 1209 Stouffer V. Latshaw 79, 80, 86 Stoughton's Appeal 1597 Stoughton V. Leigh 1595 V. Pasco 1555 Stout V. Curry 1912 V. Merrill 27, 35 V. Woodward 338, 354 Stoutimore r. Clark 256 Stow V. Miller 1273 r. Tifft 1409 /•. Wyse 256 Stowell V. Waddingham 1759 Straight v. PLarris 1489, 1490 Strain v. Murphy 254 c. Wright 30 Strang v. Peterson 88 Strasson r. Montgomery 1600 Straunch v. Hathaway 1205 Straus V. Eagle Ins. Co. 144 Strawn v. Norris 1259 Streeper r. Abeln 890, 958 Street f. Benner 1971 Streeter r. Shultz 1837 Stribling v. Atkinson 1364 Strickland r. Draughan 340, 381 ('. Kirk ' 1503 V. McCormick 1109 r. Parker 10 70, 16 77 Strickler v. Todd 1652 Stringer r. Northwestern M. L. Ins. Co. 9, 24, 25, 26, 27 Stringer v. Young 322 Stroebe v. Fehl 44 Strohauer v. Voltz 295 Stroman v. Yarn 1832, 1834 Strong i\ Brewer 1010 V. Colter 1862 V. Doty 637, 650 TABLE OF CASES. References are to Sections. Strong V. Doyle 1708 V. Ehle 1409 V. Grannis 79 c. Lynn 1394, 1395 V. Shea 1563 V. Smith 1435 V. Van Deursen 1415, 1497 V. Waddell 955 Stroud V. Lockart 1407, 1531 V. McDaniel 1213, 1215 V. Sprincrfield 376, 378, 380 Strough V. Wilder 1110, 1248, 1249 Stroughill V. Buck 256, 260 Stroup V. MfCloskey 388 Strout V. Harper 559 Strubbee c. Trustees' Cincinnati Ry. Co. 1615 Stuart V. Baker 2, 21, 27, 31 V. Barker 1947 i\ Clark 481 V. Button 1159, 1164, 1173, 1191, 1193, 1194 V. Rumsey 1194 Stubbs v. Page 943 Stuckey v. Keefe 1785, 1791, 1792, 1797 Studabaker v. Marquardt 261 Studdard v. Wells 632, 633, 635, 637, 638, 646 Studwell V. Shapter 5 Stukeley r. Butler 660, 670 Stull t'. Hnrris 9, 24, 31, 35 Stumpf V. Osterhage 1371 Sturo;eon r. Floyd 381 Sturgis r. Warren 1674, 1681, 1733 Sturtevant r. Sturtevant 97, 1227 Stutt r. Building Asso. 871 Stuyvesant r. Davis 708 V. Hall 1482, 1489 V. Hone 1489, 1559 V. Mayor 710 V. New York 639, 682 Suddereth v. Smyth 1443 Snffell r. Bank of England 1341 Siiffern y. Butler 1012 Suffield V. Bi-owii 1663 Sullivan v. Davis 1029 V. Flynn 70 V. Ilodgkin 101, 109 V. Lear 295, 296 V. McLaughlin 155, G13, (il8 V. Smith 1832 V. Sullivan 1958 V. Toole 1668, 1718, 1747, 1748 Sullivan Sav. Inst. *•. Young 285, 1393 Summer v. Mitchell 1123, 1124, 1143, 1144, 1147, 1162, 1165, 1179, 1216, 1440 Summers r. Brice 1390 r. Cook 1603 v. Darue 1239, 1410, 1412 V. Kilgus 1420 Sumner v. Barnard 979 V. Conant 1028 V. Darnell 624, 632, 650, 687 V. Rhodes 1435 V. Williams 571, 830, 831, 834, 858, 860, 943, 981 Sunderlin i\ Struthers 259 Susquehanna Bridge & B. Co. v. General Ins. Co. 1053, 1082 Susquehanna Canal Co. v. Bonham 145 Sutherland v. Goodnow 3G6 V. Jackson 448, 449 r. Ross 1107 Sutliff V. Forgey 166, 1 792 Sutter V. San Francisco 1968 Sutton V. Jervis 1563 v. Miles 616 V. Porter 1942, 1947,1950, 1951 V. Sutton 1997 Suydam v. Jones 861 Sugden v. Beasley 1628 Swafford v. Ferguson 2 V. Whipple 295 Swan ('. Moore 1407 V. Stedman 1025, 1035 V. Swan 1900, 1904, 1997 V. Vogle 1472, 14 79 Swarts i\ Stees 1437 Swartz 0. Ballon 986, 1331, 1335 V. Page 1056 V. Swartz 1654 Swasey v. Brooks 928, 930 Swazey v. Brooks 1642, 1662 Swearingen r. Reed 42 Sweeney v. Bixler 285 Sweet /-. Brown 855, 857, 894, 896 r. Jacocks 1404 *'. Southcote 1529 Sweetser v. Lowell 1224 Sweetzer r. Jones 1674, 1717, 1745 Sweezy r. Jones 1419 Sweigart r. Richards 378 Swenson v. Searle 270, 285 V. Willsford 442 Swepson v. Bank 14 72 r. Exch. & Dep. Bank 1 !G-2 cliii TABLE OF CASES. References are to Sections. Swett V. Patrick 039, 969, 974, 986, 1934 r. Poor 121, 124 Swick V. Sears 522, 529, 544 Swift V. Hall 1474 Swinburne c. Swinburne 1S35 Swinoy i\ Swiney 34fi, 12!)2, 12:»3 Switztiable r. Worscldine 3(16 Switzor i: Knapps 1060, 1075, 1077, 1440 Swoll V. Oliver 721 Swope V. Le(lin2;well 1 74 Sword V. Low 1672, 1684, 1734, 173 7, 1753 Sydnor v. Palmer 1866, 1870, 1874, 1878 V. Roberts 1531 Syer v. Bundy 1527 Symonds v. Harris 1923 Taaffet'. Kelley 1511 Tabor v. Bradley 1639, 1642, 1652, 1656 Taft V. Kessel 943 V. Serrl)es 1121 V. IMartin 1900, 1904 V. Torrey 1 792 clvii TABLE OF CASES. References are to Sections. Touchard r. Crow 11 23, 11 24, 1 1 32, 11 (;2, iiti5 Toulmin r. Iloidelberg 1027 Tourville r. Picrson 1164, 1194 TousK'v V. (lalena M. & S. Co. 448 V. Tousley 1406, 143C, 1437, 1451, 1472 Towarv. Hale 223, 23 7 Towart v. Sellers 58 Tower v. Tower 11)58 Towery v. Henderson 1251 Towle V. Smith 708 Towler v. Towler 525 Town 0. GrilHth 1455 V. Needhain 801, 933, 1879, 1900, 1981 Towne v. Bowers 718, 723, 731 V. Fiske 1702, 1703 Townend v. Toker 297 Towner I". Lucas 1303 I'. ThomiDSon 375 V. Wells 1498 Townsend v. Corning 1041, 1042 r. Downer 353 V. Eichelberger 1867 V. Hayt 365, 384 V. Hubbard 1041, 1042, 1067 V. Little 1086, 1544, 1568 V. Maynard 43 V. Morris 927 V. Weld 861, 8.S3 Townsend & Paston's Case 1880 Townshend v. Goodfellow 245 V. O'Bogert 196 7 V. Townshend 44, 294 Townsley v. Chapin 1212 Townson v. Green 853 t;. Tickell 1282, 12.S5 Tracy v. Greffet 840 V. Jenks 1455, 1472 Trader v. Jarvis 2, 26 Traders' Nat. Bank v. Manuf. Co. 1501 Tradesmen's Building Asso. v. Thompson 1420 Trafton v. Hawes 266, 267, 269, 293, 294, 313 Tram Lumber Co. v. Hancock 402, 1396 Trammell v. Thurmond 1162 Transue v. Sell 448, 449, 450, 461 Tranum v. Wilkinson 1437 Traphagen /•. Irwin M82 Trappes v. Hartor 1690, 1765 Trasher v. Everhart 1068, 1071, 1073 clviii Trask v. Trask 1272, 1273 V. Wheeler 808 V. Wilder 929 Travellers' Insurance Co. v. Yount 386 Travis v. Tyler 1265 Tray, &c. 11. Co. v. Kerr 142 Traylor v. Townsend 1511, 1517, 1522 Traynor i\ Palmer 845 Treiidwell v. Reynolds 1238 V. Salisbury Manuf. Co. 141, 142 Treat r. Chipman 476 V. Joslyn 455 Tredway v. McDonald 1569 Trefts V. King 1514 Tremain v. Liming 828 Tremmel v. Kleiboldt 590 Trenouth v. Gilbert 1870 Trentman v. Eldridge 1529, 1530 V. Neff 338, 351 Treptow v. Buse 1408 Trezise v. Lacy 1568 Trice v. Kayton 842, 911 Trimmer y. Heagy 36, 1182 Trinity Co. Lumber Co. v. Pinck- ard 1021 Tripe v. Marcy 1482 Triplett zj. Witherspoon 1109 Tripp i;. Ha sceig 1619,1621 I'. Riley 1994 Tritch V. Norton 1591 Trotter v. Hughes 647 Troup V. Haight 1446 Trowel v. Castle 1359 Troy City Bank v. Wilcox 1530 True V. Nicholls 616 Truesdale v. Ford 1563, 1568 Truesdell v. White 1 786 Truett V. Adams 351, 352, 359, 364, 520, 521 Truitt V. Truitt 1559 Trull V. Bigelow 1502, 1503, 1504, 1529 V. Eastman 892 V. Fuller 1688, 1721 V. Skinner 1262, 1264 Trullinger /•. Kofoed 1430 Truluck V. Peebles 1132 Truman v. Lore 1010, 1127, 1444 V. McCoIlum 1448 Truscott V. King 295, 1489 Trusdell v. Lehman 575, 599 Trussel v. Lewis 355, 364 Trustees v. Bryson 40, 44, 4 5 V. Davidson 1 1 85 V. Davison 1171, 1212 TABLE OF CASES. References are to Sections. Trustees v. Hawes 452 V. Kirk 1866 V. Lynch 733, 771, 779, 780, 786, 875 V. McKechnie 1153 V. Manning 1110 V. SchroU 480, 484, 501 V. Tbacher 733, 766, 773, 782, 805, 811 V. Wheeler 1425, 1563, 1566 Trutt V. Spotts 448, 450, 461 Tryon v. Hun toon 323 V. Munson 1380 Tubbs V. Gatewood 1159, 1162, 1190 Tucker v. Allen 1257 V. Campbell 1925 V. Clarke 997, 998 V. Constable 1513 V. Cooney 920 V. Feri:;uson 146 V. Heiizill 1538 V. Jones 533, 549, 1637, 1643 r. Markland 1997 V. Moreland 2, 5, 14, 20, 21, 24, 31, 54, 59, 60 V. Shaw 1451, 1485 V. Smith 376 V. Tilton 1532, 1536 V. Tucker 231, 583, 586, 618 V. Vowles 748 Tudor Iron Works v. Hitt 1698 Tufts V. Adams 903, 935, 962, 96 7, 975 V. Charlestown 449 V. Tapley 1467 V. Tufts 1528 Tulk V. Moxhay 779, 780, 781 Tull V. Royston 871 Tulloch V. \Vorrall 1875 TuUy V. Davis 1 1 80 Tunison v. Chaml)lin 2, 17, 18, 19, 1196, 1197, 1202, 1248 Tunstall v. Cobb 1261 ('. Trappes 1499 Tupper V. Fonlkes 1018 Turk V. Funk 1413 Turman v. Bell 1467, 1473. 1563, 1575, 1576 V. White 602 Turnbull v. Schroeder 339, 340, 381, 386, 389, 398 Turner v. Babb 1559 V. Baker 354, 364, 366 Turner v. Carpenter 1217, 1287 V. Collins 108 V. Connelly 1125 V. Cool 524, 1619, 1624 V. Field 1065 V. Gaither 16 V. Goodrich 869, 919, 921, 924, 974 V. Houpt 1559, 1560 V. Kelly 44 V. Kennedy 1698 V. McDonald 215 V. Me Fee 285, 287, 1391 v. Mebane 1760 V. Miller 968 V. Parker 490, 492 V. Rusk 57, 65 V. Scott 527, 1232, 1233 V. Shaw 44, 4 6 V. Thomas 131 V. Turner 99, 356 V. Union Pac. Ry. Co. 433, 437 V. Warren 1240, 1248, 1259 V. Wentworth 1668, 16 73, 1702 V. Whidden 1241 Turnipseed v. Fitzpatrick 1991 Turpin V. Ogle 1420 Tustin V. Faught 1004, 1007 Tuten V. Gazan 1143, 1144, 1149, 1154 Tuttle V. Armstead 305 V. Churchman 1575 U.Jackson 138, 1563, 1568 V. Rainey 1248 V. Turner 1243, 1248, 1276, 1282 V. Walker 530, 542 Tutwiler v. Montgomery 1563 V. Munford 310 Twambly v. Henley 843 Twelves D. Nevill 617 Twiford v. Alamakee Co. 658 Twogood V. Hoyt 381, 466, 484 Twomev v. Crowley 271, 295 Twitchell v. McMurtrie 1447 T witty V. Camp ■ 660, 667 Tydings v. Pitcher 1547, 1552 1^'ler, In re 1884, 1S87 Tyler v. Carlton 295, 305 V. Dempsey 43 V. Fiekett 338, 340, 381 V. Gallop 24 V. Gardiner 98 V. Hall 1220, 1227, 1228, 1236, 1237, 1267 clix TABLE OF CASES. References are to Sections. Tyler r. Hammond 410, 411, 448, 1G37 V. Moore 5G3, 565, 56t;, 5(18, 570, 580,583, 608, 609 V. Thomas 1559 Tynerr. Feniier 1M91 V. People's Gas Co. 159S Tyrone Co. v. Cross 378 Tyson v. Post 1680, 1739, 1750 Uecker v. Koehn 29 Ufford V. AVilkins 398, 441 Uhl V. May 1563 Uhler V. Hutchinson 1405, 1406, 1407 V. Seniple 1406 Ulrich's Appeal 617 Umbarger v. Chaboya 388 Umscheid i'. Scholz 542 Underbill v. Morgan 40 V. Saratoga & W. R. Co. 619,624,636,638, 708, 723, 728, 729 Underwood v. Birchard 893 V. Campbell 268, 1060, 1063 V. Carney 1662 V. Dollins 1069, 1070 Unger v. Mooney 1862, 1864, 1666, 1878, 1880 Union Bank v. Call 1082 V. Emerson 1731 Union Canal Co. v. Young 649, 687 Union Coal Co. v. City of La Salle 452 Union College v. Wheeler 1570 Union Dime Savings Inst. v. Du- ryea 1390 Union Gold M. Co. v. Bank 1080, 1082 Union Mut. Life Lis. Co. v. Camp- bell 1276, 1287, 1289, 1290, 1292, 1301 Union Ry. & T. Co. v. Skinner 326, 420, 423, 495 United Brethren Church v. First Methodist Church 238 United Presb. Ch., In re 650 United Society v. Brooks 1606, 1607 United States v. Appleton 1649, 1 652 V. Arredondo 6 74, 67 7 V. California, &c. Land Co. 1394 V. Fox 165, 185 V. Griswold 1406 V. Hooe 272 V. Huckabee 81, 89 V. King 323 clx United States v. Linn 1365 V. Murray 381 V. Nelson 1328 V. New Orleans R. Co. 1730, 1743, 1753 V. Pacheco 471, 472, 473 V. Rei)entigny 725 V. Schurz 1219, 1229, 1377 V. Sliney 1566 r. Stephenson 1064 V. Sutter 432 United States Insurance Co. v. Shriver 1374,1416 United States Mortg. Co. v. Gross 184, 185, 187, 1547 United States Trust Co. v. Lee 85, 173 University of Vermont v. Joslyn 140 University of Vermont v. Rey- nolds 1919 Upham V. Bradley 1960 Upington V. Corrigan 682, 694, 718 Upton V. Archer 1328, 1329, 1333 V. Basset 138 7 Urann v. Coates 594, 1277 Urban v. Grimes 24, 27 Usina V. Wilder 256 Utermehle v. McGreal 5, 29, 31 Utley V. Fee 1396 Utz, Estate of 602, 609 Vail V. Long Island R. Co. 708 V. McMillan 274, 295, 302 V. Weaver 1668, 1723, 1741 Valentine v. Healey 1895, 1896 V. Lunt 48, 116 I'. Piper 476,479,1101, 1102 V. Sloss 472 V. Wheeler 1248 Vallandingham v. Johnson 2, 5, 21, 23, 33 Valley Pulp & Paper Co. v. West 460 Valpcy V. Rea 63, 64 Vanada r. Hopkins 1041 Van Aken v. Gleason 1495, 1496, 1504 Van Alst v. Hunter 48 Van Alstyne, r. Van Slyck 1067 Vanauken v. Ilornbeck 1348 Van Bibber i'. Frazier 1862, 1873, 1877 Vanblaricum v. Yeo 1063 Van Brunt r. Applegate 1832 TABLE OF CASES. References are to Sections. Van Brunt v. Gordon 1918 V. Van Brunt 1338 Vance ?'. Fore 417,418,424,431, 1066 V. Johnson 135 V. Schuyler 1153, 1154 Vancleave v. Wilson 1206 Van Cloostere v. Logan 1499 Vim Den Brooks v. Correon 466 Vandercook v. Baker 1451, 1487 Vanderkenip v. SheUon 1420, 1484 Vanderpoel u. Van Allen 1713, 1743 Vanderslice v. Knapp 1760, 1764 Van Deusen v. Sweet 48, 49, 52, 53, 54, 70, 71 V. Swift 48 Vandiveer v. Stickney 119, 1 24, 125, 129,133, 135 Van Doren v. Relfe 929 Van Dusen v. Shively 438 Vanduyne v. Vreeland 1513 Van Dyck v. Van Buren 1872 Van Eps v. Schenectady 828 Van Etta v. Evenson 1331, 1335 Van Gunden v. Virginia Coal & Iron Co. 1868, 1879 Van Heusen v. Radcliffe 1390 Van Hoesen v. Benham 140 Van Hook v. Walton 1224 Van Horn v. Bell 1351, 1361, 1365 Van Home v. Dorrance 6 1 9 V. Fonda 1836, 1846 Van Husan v. Heames 1380, 1384 Van Keuren v. Central R. Co. 1563, 1575 V. Corkins 1420, 1424 Vanmeter v. Darrah 56 V. Knight 1458 V. Vanmeter 271, 272 Van Ness v. Bank 1116, 1143, 1165 Van Nostrand v. Wright 1182 Vannoy v. Blessing 138 Vanorden v. Johnson 1482, 1489 Van Orman v. McGregor 1196, 1197 Van Ostrand i'. Reed 1021 Van Peh V. McGraw 1761 Van Rensselaer r. Ball 723 V. Clark 1504 V. Kearney 155, 991 Van Riswick r. Goodhue 1439 Vansant v. Morris 233 r. Roberts 237 Van Schiiyver r. Mulford 1963 Van Slyck v. Skinner 154 7 Vanstory )'. Thornton 1403 Van Thorniley v. Peters 1406, 1435, 1441, 1460 Van Valkenburg v. Huff 1862 Van Voorhis v. Kelly 140 Van Wagenen v. Hopper 1524 Van Wagner r "Van Nostrand 861, 882, 883 Van AVinklc v. Constantine 36 Van Wyck v. Brasher 74 V. Seward 289 Vardeman v. Lawson 829 Varick v. Briggs 1425, 1486, 1529, 1531 Varn v. Varn 575, 1782 Varner r. Rice 525 V. Young 233 Varnum v. Leek 1887, 1892 Vasey v. Board of Trustees 1945 Vason V. Ball 1711 Vass V. Hill 1885, 1892 Vattier v. Hinde 1511 Vaughan v. Bacon 1862, 1863 V. Fowler 1348 V. Godman 1218, 1276, 1282, 1289, 1297 V. Parr 24 Vaughen v. Haldeman 1703 Vaughu i\ Carlisle 1213 V. Moore 1258, 1451 V. Schmalsle 402, 1404 V. Tracy 1511, 15C3 Vaux V. Nesbit 167 Veal V. Fortson 13 Veasey r. Williams 360 Veazie v. Parker 1371, 1506 Veheu v. Mosher 1708 Veith V. McMurtry 1521, 1527 Vejar v. Mound City Asso. 334, 338, 421 Venable v. Beauchamp 1835, 1836, 1846, 1853 Veramendi v. Hutchins 252 Vereycken v. Vandenbrooks 87, 89 Vermont Central R. Co. v. Hills 1642 Verner ?'. Betz 1759, 1760 Verplanck v. Wright 694 Verplank v. Sterry 281, 283, 1277 Vest V. Michie 1510, 1515, 1517, 1524 Viall V. Carpenter 534 Vick V. Edwards 1796 V. Gower 41 Vickers v. Leigh 682, 599 Victoria v. Schott 485 Vidal V. Girard 183 Videau v. Griffin 1014, 1017, 1021 Vide V. Judson 1422, 1428 Vilas V. Reynolds 1050 Vilbas V. Beaumont 1278 clxi TABLE OF CASES. References are to Sections. Villa V. Koilriiitu'z Villors r. Hoaiiiiiont Villiers r. XWUvva ViiK'onr ('. Walker Vinton r. Beanier VioU'tt r. Viok'tt Virgin i\ Biubaker Viser i\ Rice 1394 1277 59;? 302. 309 1792, 1803 138 1415 1331 Visitors M. E. Church v. Town 599 Vliet V. Camp 1331 Vo2;clsan. Payne 632,678,688, 68!> Wooldridge v. Miss. Valley Bank 15 78 Woolever t>. Knapp 1884, 1887 Wooley r. Constant 1331, 1356 r. Groton 1651 Woolfolk '•. Graniteville Manuf. Co. 1442 Woolford r. Baxter 1721 Wooliscroft ('. Norton "86 Woollen r. Ilillen 15«4 TABLE OF CASES. References are to Sections. Woolley V. Newcombe V. Schrader Woohvick V. Forrest Wooster v. Butler Wooters v. Arledge Worcester v. Eaton 849 1887, 1890 239 380 337 ■ 95 Worcester Nat. Bank v. Cheeney 1455, 1474 Word V. Drouthett 1867, 1874 Work's Appeal 86 Work r. Brayton 285 V. Harper 1435, 1442 Works V. State 323, 1506 Worley v. Hinenian 931, 962 Worman v. Teagarden 624, 641 Wormley v. Wormley 1508, 1527 Worrall's Appeal 105 Worrall v. Munn 1021, 1303, 1304, 1313 Worrell v. McDonald 1197, 1204 Worsham v. Chisum 441 V. Freeman 1443 V. Morgan 441 V. Vignal 1829 Worsley v. Scarborough 1559 Worth V. Curtis 62 Worthen v. Ratcliffe 708 Worthington v. Campbell 48, 56, 73 V. Ginison 1658, 1663 V. Hiss 1902, 1906, 1997 V. Hylyer 322, 326, 423 V. Morgan 1583 V. Staunton 1979 Worthy r. Caddell 1387 V. Johnson 253 Wortraan v. Ayles 264 Wotten I). Copeland 1960,1966 Wray v. Wray 99 Wrede v. Cloud 1568 Wren v. Coffey 1232 Wrenn v. Gibson 1994 Wright V. Barrett 1601 V. Bates 1575 V. Briggs 305 V. Bundy 285, 1196, 1201 V. Cane 1940 V. Dame 1508 V. Douo-lass 594, 1408 V. Dufield 1188 V. Germain 27 V. Graham 1170, 1215 V. Herron 613 V. Howard 484 V. Jackson 49 V. Jones 1404 Wright V. Kleyla 1879 V. Lee 143, 192 V. Mabry 410 V. Nipple 929, 943, 944 V. Player 8 V. Proud 99 V. Remington 84 V. Saddler 1794, 1800, 1879 V. Sadler 1792 V. Shorter 833 V. Sperry 1840 V. Yickers 1972 V. Wakeford 1000 V. Watson 1619 V. Wood 1565 V. Wright 281, 398, 577, 898, 1094, 1900 V. Wilkin 640 V. Wilson 1133, 1145 Wroten v. Armat 174 Wunderle v. Wunderle 165 Wunderlin v. Cadogan 1328 Wyatt V. Barwell 1499, 1501 V. Duncan 441 V. Foster 381 V. Stewart 1407 Wycherley v. Wycherley 108 Wyckoff V. Gardner 1803, 1811 r. Remsen 1448, 1456 V. Stephenson 381, 386 Wyllie V. Pollen 1536 Wyman v. Ballard 930 V. Brigden 974 I'. BroAvn 525, 527 r. Russell 1464 Wynn r. Carter 1380 Wynne v. Parke 1030 V. Small 1184 AVyse v. Leahy 426 Xander's Estate Xenos V. Wickham 644 1218, 1220 Yakima Nat. Bank v. Knipe 1359 Yale V. Flanders 106 7 Yancey v. Greenlee 1937 V. Lewis 903 V. Radford 1799, 1953 V. Savannah & W. R. Co. 690 V. Tatlock 883, 967 Yanish v. Tarbox 381, 383, 386 Yarborough v. Avant 1947 V. Monday 1067 Yard's Appeal 660 Yard y. Ocean Beach Asso. 409,435, 472 Yardley v. Cuthbertson 103 clxxiii TABLE OF CASES. References are to Sections. Yarnall's Appeal 602 YanioU c. Yarnell 1248 Yates V. Shaw 354, 358, 359 V. Van 1)(> Bogert 181, 488 Yanger v. Skinner 53, 54, G8, G9 Yeakor r. Yeaker 1()5, 16G Yeaklc i\ Jacob l(i03 Yeanvorth v. Pierce 1 708 Yeatman r. King 1591 Yellow Jacket Silver M. Co. r. Stevenson 1082 Yerby v. Grlgsby 1041 Yerger i-. Barz 1455, 1532 Yocuni V. Haskins 381, 383 Yoe V. McCord 97 V. Milam County Cotton Alli- ance 1559 York V. Hinkle 89 V. Merritt 1340 V. Stone 1777 York, &c. R. Co. v. Winans 142 Yorty V. Paine 1108 Yosti r. Lauglira-n 103 Younians v. Caldwell 1624 Young, Petitioner 516, 528 Young, Ex parte 250 Young, In re 503, 516, 528 Young's Estate 1797,1798 Young V. Adams 1848 V. Board 6 75 V. Cardwell 1243 V. Clement 632, 635 V. Clippinger 896, 1396 V. Cosgrove 430 V. De Bruhl 1818, 1919 V. Devries 1407 V. Duval 1196, 1198, 1447 V. Edwards 1979, 1985 V. Guy 1391, 1559, 1563, 1571 V. Harrison 471 V. Hunter 677 V. Lego 1600 V. McKee 29 V. Mahoning Co. 593 V. Raincock 260 clxxiv Young !'. Ringo 271 c. Smiai 249, 250, 262 r. Stevens 54, 55, 68 V. Tarbell 1409 V. Thompson 1462, 1466 V. Triplett 933 V. Woolett 358 V. Young 288, 1090 Youngblood v. Vastine 1383, 1385 V. Youngblood 1232, 1235 Younge v. Guilbeau 1217, 1220, 1267, 1289, 1290, 1294 V. JNIoore 1230 Youngman v. Elmira & Williams- port R. Co. 1559, 1729 Youngs V. Heffner 1868, 1997 V. Simm 85 V. Wilson 1482, 1483, 1491 Younkin v. Cowan 389 Youst r. Martin 1528 Yokum V. Thomas 913, 974, 986 Zabriskie v. Baudendistel 903 Zann v. Haller 218, 1007 Zapp i'. Miller 1887, 1892 Zeibold v. Foster 387 Zell Guano Co. v. Heatherly 1 284 Zeller t'. Adam 1757 V. Eckert 1866, 1867 Zent V. Pieken 842, 928, 943 Zents V. Shaner 89 Zie-ler v. Grim 1970 Zimmerman r. Camp 1359, 1365 Zink V. McManus 413 Zirkle v. McCue 1995 Zoebisch i\ Ranch 14, 16 ZoUer y. Ide 1050, 1080 Zorn V. Railroad Co. 285, 1390 Zorntlein v. Bram 1792, 1802, 1803, 1805 Zouch r. Parsons 2, 10, 1024 Zug i\ Commonwealth 471 Zuver V. Lyons 1522 BOOK I. CAPACITY OF PERSONS TO HOLD AND CONVEY LAND. PART I. CAPACITY OF PERSONS AS VENDORS. CHAPTER 1, DISABILITY OF INFANTS. II. DISABILITY OF MARRIED WOMEN. III. DISABILITY OF INSANE PERSONS. IV. DISABILITY FROM DRUNKENNESS. V. DISABILITY FROM DURESS. VI. DISABILITY FROM UNDUE INFLUENCE. VIL DISABILITY FROM ADVERSE POSSESSION. VIII. CAPACITY OF CORPORATIONS AS VENDORS. IX. CAPACITY OF TENANTS IN TAIL AS VENDORS. PART II. CAPACITY OF PERSONS AS PURCHASERS. X. CAPACITY OF PURCHASERS IN GENERAL. XL CAPACITY OF ALIENS AS PURCHASERS. XU. CAPACITY OF CORPORATIONS AS PURCHASERS. BOOK L — PART I. CAPACITY OF PERSONS AS VENDORS. CHAPTER I. DISABILITY OF INFANTS, I. Deeds of infants voidable, not void, 2-4. 11. No estoppel by declaration of age, 5, 6. in. Disability of married women under age, 7-9. IV. Who may affirm or disaffirm mi- nority, 10-13. V. What amounts to an affirmance, 14-16. VI. What amounts to a disaffirmance, 17-23. VII. Affirmance from lapse of time, 24-26. VIII. Disaffirmance within a reasonable time, 27, 28. IX. Avoidance of mortgage for pur- chase-money, 29, 30. X. Restoration of purchase - money, 31-35. 1. In general any person who has the legal capacity to bind himself by contract may convey his real estate or any interest therein by deed. The power of alienation is one of the usual in- cidents of ownership, but its existence depends upon the unity of title with capacity to contract. The absolute owner of any estate or interest in land may sell that estate or interest, if he is under no disability. He may also sell a less estate or interest than that which he owns, but he cannot sell a greater estate or interest. Thus a tenant for life or the owner of a limited estate or interest may sell the estate or interest he owns, but if he undertakes to dispose of a larger estate or interest his sale is valid only to the extent of his estate or interest. The same disabilities which in- capacitate one from making a valid contract incapacitate him from making a valid deed. These disabilities are either natural, as in the case of insane persons, or legal, as in the case of married women, or either natural or legal, or perhaps both, according to the circumstances of tlie case, as in the case of infancy. There may also be a legal disability arising from the relation in which a person stands to the property, as in case the property is held in adv(M'se possession ; or a legal disability arising from the relation in wliich the owner stands to the intended purchaser, as in the case of a direct conveyance between husband and wife. The dis- abilities to be considered, in reference to the capacity of persons to 3 §'-^-] DISABILITY OF INFANTS. dispose of property by deed, arise from iufiincy, coverture, the various kinds and degrees of mental c:ipacity, wliether this be from insanity, drunkenness, duress, or undue influence ; and finally are to be considered the capacity to convey of owners whose land is adversely held, the capacity of corporations and of tenants in tail. I. Deeds of Infants voidable, not void. 2. The deed of a minor conveying his land for a valuable consideration is voidable, and not void.^ Formerly various ^ Zouch u. Parsons, 3 Burr. 1794; Al- len V. Allen, 2 Dr. & War. 307, 338; Bur- uiiby V. Equitable Revers. Soc. 28 Ch. D. 416; Keaue v. Boycott, 2 H. Black. 511 ; Irvine v. Irvine, 9 Wall. 617; Tucker v. Moreland, 10 Pet. 58; Hyer v. Hyatt, 3 Cranch C. C. 276. Alabama: Manning v. Johnson. 26 Ala. 446, 62 Am. Dec. 732; McCarthy v. Nicrosi, 72 Ala. 332, 47 Am. Kep. 418. California : Hastings v. DoUarhide, 24 ("al. 195. Colorado: Kcndrick v. Neisz, 1 7 Colo. 506, 30 Pac. 245. Connecticut : Kline v. Beebe, 6 Conn. 494 ; Rogers v. Hurd, 4 Day, 57, 4 Ara. Dec. 182. Del- aware : Wallace v. Lewis, 4 Harr. 75. Georgia: Code 1882, § 2694; Harris v. Cannon, 6 Ga. 382 ; Nathans v. Ark- wright, 66 Ga. 179. Illinois : Illinois Land Co. v. Bonner, 75 111. 315; Tunison V. Chamblin, 88 111. 378; Cole v. Pen- ney er, 14 111. 158 ; Keil v. Healey, 84 111. 104, 25 Am. Rep. 434. Indiana : Scran- ton V. Stewart, 52 Ind. 68 ; Pitcher v. Lay- cock, 7 Ind. 398; Law v. Long, 41 Ind. 586; Fetrow v. Wiseman, 40 Ind. 148. Iowa: Green V. Wilding, 59 Iowa, 679, 13 N. W. Rep. 761, 44 Am. Rep. 696 ; Jen- kins V. Jenkins, 12 Iowa, 195. Kentucky: Brpckenridge v. Ormsby, 1 J. J. IMarsh. 236, 245, 19 Am. Dec. 71 ; Philips v. Green, 3 A. K. Marsh. 7, 13 Am. Dec. 124; Vallandingham v. Johnson, 85 Ky. 288 ; Iloffert v. Miller, 86 Ky. 572, 6 S. W. Rep. 447. Maine : Davis v. Dudley, 70 Me. 236, 35 Am. Rep. 318; Webb v. Hall, 35 Me. 336. Maryland: Ridgeley V. Crandall, 4 Md. 435 ; Amcy i-. Cockcy, 4 73 Md. 297, 20 Atl. Rep. 1071, per Alvey, C. J. Massachusetts: Kendall i;. Law- rence, 22 Pick. 540; Boston Bank v. Chamberlin, 15 Mass. 220. Minnesota: Dixon «. Merritt, 21 Minn. 196. Missis- sippi : Allen v. Poole, 54 Miss. 323. Mis- souri: Ferguson v. Bell, 17 Mo. 347; Peterson v. Laik, 24 Mo. 541 ; Singer Manuf. Co. v. Lamb, 81 Mo. 221 ; Huth V. Carondelet, &c. Co. 56 Mo. 202 ; Baker V. Kenuett, 54 Mo. 82 ; Harris v. Ross, 86 Mo. 89; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. Rep. 906 ; Shipley v. Bunn (Mo.), 28 S. W. Rep. 754. Nebraska: Englebert v. Troxell, 40 Neb. 195, 58 N. W. Rep. 852. New Hampshire: State v. Pliasted, 43 N. H. 413; Roberts v. Wig- gin, 1 N. H. 73, 8 Am. Dec. 38. New York : Bool V. Mix, 17 Wend. 119, 31 Am. Dec. 285 ; Palmer v. Miller, 25 Barb. 399 ; Jack- son V. Todd, 6 Johns. 257 ; Jackson v. Carpenter, 11 Johns. 539 ; Fiinn v. Powers, 36 How. Pr. 289 ; Voorhies v. Voorhies, 24 Barb. 150. North Carolina: McCor- mic V. Leggett, 8 Jones, 425. Ohio: Drake v. Ramsay, 5 Ohio, 252. Pennsyl- vania : Logan V. Gardner, 136 Pa. St. 588, 20 Am. St. Rep. 939. South Carolina: Ihley V. Padgett, 27 S. C. 300, 3 S. E. Rep. 468. Tennessee: Scott v. Buchanan, 11 Humph. 468; Hook v. Donaldson, 9 Lea, 56. Texas : Searcy v. Hunter, 81 Tex. 644, 17 S. W. Rep. 372, 26 Am. St. Rep. 837 ; Stuart v. Baker, 17 Tex. 417 ; Cumniings v. Powell, 8 Tex. 80; Askey v. Williams, 74 Tex. 294, 11 S. W. Rep. 1101, 5 Lawyer's Rep. 176. Vermont: Bigelow V. Kinney, 3 Vt. 353, 21 Am. Dec. DEEDS OF INFANTS VOIDABLE, NOT VOID. [§ 2. distinctions were taken between void and voidable contracts of infants. It was said tliat any contract wliich the court could de- clare to be to their prejudice was void.^ For this reason it was held that a conveyance by a minor without consideration is absolutely void, and not voidable merely. But now such distinctions no longer prevail. It is the settled rule that all contracts of infants, whether made personally or by an agent, are voidable instead of void. After coming of age they may ratify and confirm any con- tract made during minority. Even a deed of gift, or deed without consideration, is voidable rather than void.^ Their contracts for necessaries to the extent of their reasonable value are valid and require no ratification ; and their contracts made in pursuance of statutory authorit)% or b}" direction of court, are of course valid. And so are their deeds, executed under such circumstances that the law would have compelled their execution, valid and cannot be avoided.^ Thus an infant who holds the legal title to real estate in trust may be compelled to execute the trust, and his deed made in pursuance of such obligation cannot be avoided.* He cannot disaSirm or avoid his deed in execution of that trust on the ground of his minority, since the execution of the trust was a duty which a court of equity would have com- pelled him to perform notwithstanding his infancy.^ An infant 589. Virginia: Wilson i-. Branch, 77 Va. 10 Pet. 58, 67; Irvine t\ Irvine, 9 Wall. 65, 4G Am. Rep, 709; Birch v. Linton, 617, 626; Starr v. Wright, 20 Ohio St. 78 Va. 584, 49 Am. Kep. 3S1. West 97; Elliott y. Horn, 10 Ala. 348, 44 Am. Virginia : Gillespie v. Bailey, 12 W. Va. Dec. 488 ; Bridges l-. Bidwell, 20Xeb. 185, 70, 29 Am. Rep. 445. 29 N. W. Rep. 302. 1 Kcane v. Boycott, 2 H. Black. 511, * Sheldon v. Newton, 3 Ohio St. 494; per Lord Chief Justice Eyre, approved in Starr v. Wright, 20 Ohio St. 97; Lem- some American cases ; Bloomingdale v. nion v. Beeman, 45 Oliio St. 505, 15 Chittenden, 74 Mich. 698, 42 N. W. Rep. N. E. Rep. 476; Trader v. Jarvis, 23 W. 166. Va. 100; Prouty j;. Edgar, 6 Iowa, 3.53 2 Slaughter v. Cunningham, 24 Ala. Bridges v. Bidwell, 20 Xeb. 185, 29 N. W 260, 60 Am. Dec. 463 ; Oxley v. Tryon, Rep. 302. 25 Iowa, 95; Harrison v. Adcoek, 8 Ga. s Zouch v. Parsons, 3 Burr. 1794, 1801 68 ; Nathans v. Arkwright, 66 Ga. 179, 187, Tucker v. Moreland, 10 Pet. 58, 67 ; Nord 179. In Tennessee an infant's voluntary holt v. Nordholt, 87 Cal. 552, 26 Pac deed is void. Robinson v. Coulter, 90 Rep. 599; Elliott v. Horn, 10 Ala. 348, Tenn. 705, 18 S. AV. Rep. 250, 25 Am. St. 44 Am. Dec. 488; Starr v. Wright, 20 Rep. 708; Swafford v. Ferguson, 3 Lea, Oliio St. 97; Proiity v. Edgar, 6 Iowa, 292, 31 Am. Rep. 639 ; Scobey v. Waters, 353. 10 Lea, 551, 557. In Amey r. Cockey, 73 Md. 297, 20 3 Zouch r. Parsons, 3 Burr. 1794, 1801, Atl. Rep. 1071, 1073, Alvey, C. J., seems per Lord Mansfield ; Tucker v. Moreland, to be of opinion that this principle applies 5 ^^ 3, 4. J DISABILITY OF INFANTS. may exercise a naked power relating to liis own estate, if in the jnstnnuont i^iving the power it is expressly provided, or the in- tention is indicated, that th3 power may be exercised during minority.^ 3. The deed, being voidable only and not void, operates to transmit the title, wiiicli can be divested only by some act of the grantor, after he has come of age, disaffirming his deed.^ He can confirm his deed, and then it is no longer voidable ; but in the first instance confirmation is not necessai'y. It is only when there has been an effort on his part to avoid his deed that it becomes important to inquire whether there has been any act of confirma- tion which has put it out of his power to disaffirm his deed.^ No affirmative act is required to continue the validity of his deed, but only the absence of any disafiirming acts.* 4. It was formerly said that infants could not delegate their authority to contract, and that in cases where their own deeds would be voidable, yet their deeds made under powers of attorney were absolutely void.^^ The early cases to this effect, both in England and in this country, were numerous. Thus, in an early case in Massachusetts, Chief Justice Parker said : " Perhaps it cannot be contended, against the current of author- ities, that an act done by another for an infant, which act must necessarily be done by letter of attorney under seal, is not abso- lutely void, although no satisfactory reason can be assigned for such a position. But as this is a point of strict law, somewhat incongruous with the general rules affecting the contracts of in- fants, it is not necessary nor reasonable to draw inferences which may be repugnant to the principles of justice which ought to reg- to a deed of partition made by a minor, < Singer Manuf. Co. v. Lamb, 81 Mo when the partitiou is such as a court of 221. equity will sanction; and that, there being ^ Saunderson v. Marr, 1 H. Bl. 75; nothing to impeach the fairness and equal- Philpot v. Bingham, 55 Ala. 435 and ity of the partition, a court of equity will cases cited ; Cummiugs v. Powell, 8 Tex. rot disiurb it. 80; Pickler v. State, ]8 lud. 266; Armi- 1 Ilearle i-. Grcenbank, 3 Atk. 695 ; Hill tage v. Widoe, 36 Mich. 124 ; Fonda v. V. Clark, 4 Lea, 405. Van Home, 15 Wend. 631, 636, 30 Am. 2 Irvine V. Irvine, 9 Wall. 617 ; Drake Dec. 77, per Bronson, J. ; Knox v. Flack, V. Rnmsay, 5 Ohio, 252 ; Law v. Long, 22 Pa. St. 337 ; Lawrence v. McArter, 41 In.l. 586; Ihley v. Padgett, 27 S. C. 10 Ohio, 37, 42; Pyle v. Cravens, 4 Litt. 300 ; Scott V. Buchanan, 11 Humph. 468. 17, 21 ; Fairbanks v. Snow, 145 Mass. 153, 3 Ihley V. Padgett, 27 S. C. 300, 302, 156, per Holmes, J. per McGowan, J. 6 NO ESTOPPEL BY DECLARATION OF AGE. [§§ 5, 6. ulate contracts between man and man." ^ But this early rule has been limited, if not wholly done away with, by some courts of the highest authority. There is certainly no good reason why such power should not be held to be voidable and not void. If the power is coupled with an interest, as in case of a mortgage with a power of sale, it is not void, but voidable only.^ II. No Estoppel by Declaration of Age. 5. A declaration by an infant at the time of the execution of a deed that he was then of age does not estop him at law from taking advantage of his disability after coming of age.^ *' An estoppel in pais is not applicable to infants, and a fraudu- lent representation of capacity cannot be an equivalent for actual capacity. A conveyance by an infant is an assertion of his right to convey. A contemporaneous declaration of his right or of his age adds nothing to what is implied in his deed." ^ The infant's disaffirmance of his deed under such circumstances may be a fraudulent act as to the purchaser, but this does not estop him from availing himself of the protection which the law attaches to his condition of disability.^ 6. This rule is not followed, however, in equity, but a grantor who has falsely declared at the time of executing the deed that he was of full age, and has thus induced the purchaser to accept it, may be estopped by his own fraud.^ But where this is the rule, the mere failure of an infant at the time of executing a deed to inform a grantee of his disability does not estop him from 1 Whitney v. Dutch, 14 Mass. 457, 462, man, 39 Pa. St. 299, 302, 80 Am. Dec. 7 Am. Dec. 229. 524. 2 Askey v. Williams, 74 Tex. 294, 11 * Sims y.Everhardt, 102 U. S.3G0, 313; S. W. Rep. 1101, 5 Law Rep. 176. Wieland i-. Kobick, 110 III. 16, 51 Am. 3 Meniam y. Cunningham, 11 Cush. 40; Rep. 676. Sec Utermchle v. McGreal, 1 Baker v. Stone, 136 Mass. 405 ; Burley v. D. C. App. 359. Russell, 10 N. H. 184, 34 Am. Dec. 146; 5 Tucker v. Morehmd, 10 Pet. 58, 77; Wielaud v. Kobick, 110 111. 16, 51 Am. Brantley y. Wolf, 60 Miss. 420; Ferguson Rep. 676; Buchanan v. Hubbard, 96 Ind. v. Bobo, 54 Miss. 121. 1 ; Price t;. Jennings, 62 Ind. Ill ; Car- 6 Thormaehlen r. Kaeppel, 86 Wis. 378, l)enter v. Carpenter, 45 Ind. 142 ; Vallan- 56 N. W. Rep. 10?9, jicr Lyon, C. J. ; Da- dingham v. Johnson, 85 Ky. 288, 3 S. W. vidson v. Young, 38 111. 145 ; Schmithei- Rep. 173; Conrad r. Lane, 26 Minn. 389, mer v. Eiseman, 7 Bush, 298; Brantley 4 N. W. Rep. 695, 37 Am. Rep. 412 ; Stud- v. Wolf, 60 Miss. 420 ; Ferguson v. Bobo, well V. Shapter, 54 N. Y. 249 ; Brown v. 54 Miss. 121 ; Bradshaw v. Van Winkle, McCune, 5 Saudf. 224, 228 ; Keen v. Cole- 1.33 Ind. 134 ; Kilgore v. Jordan, 17 Tex. 341. 7 § 6 1 DISABILITY OF INFANTS. afterwards setting up such disabilit}', if lie made no misrepresen- tation of fact and employed no artilice to mislead the grantee.^ If the grantee knew the infant's representation that he was of age to be false, the infant is not estopped from avoiding his deed upon coming of age, so far as the transaction was not for his benefit.^ " At law it is conclusively presumed that a person within the age of twenty-one is unfitted for business, and that every con- tract into which he enters is to his disadvantage, and that he is incapable of fraudulent acts which will estop him from interpos- ing the shield of infancy against its enforcement. In equity, how- ever, this rigid rule has its exceptions. Equity will regard the circumstances concerning the transaction — the appearance of the minor, his intelligence, the character of his representations, the advantage he has gained by the fraudulent representations, and the disadvantage to which the person deceived has been put by them — in determining whether he should be permitted to invoke successfully the plea of infancy."^ But if one conveying land falsely represents that he is of age, deceives the purchaser, and, after becoming of age, stands by for several years, knowing that the land is being conveyed to subse- quent purchasers, he is estopped to disaffirm his conveyance. His misrepresentation as to his age makes his duty the greater to assert his claim seasonably.^ 1 Tbormaehlen v. Kaeppel, 86 Wis.378, infant had prevented him from doing by 56 N. W. Rep. 1089 ; Brantley v. Wolf, conveying some or all of them away to 60 Miss. 420. other third parties. 2 Nelson v. Stocker, 4 De Gex & J. 458, Li Indiana, one who purchases of a 5 Jur. N. S. 262, 7.51 ; Charles v. Has- minor, with knowledge of his disability, tedt, 51 N. J. Eq. 171, 26 Atl. Rep. 564. cannot demand a return of the cousidera- And see Lacy v. Pixler, 120 Mo. 383, 25 tion asa condition precedent to the minor's S. W. Rep. 206. right to disaffirm. Shaul v. Rinker (Ind.), 3 Hayes v. Parker, 41 N. J. Eq. 630, 7 38 N. E. Rep. 593. The statute of this Atl. Rep. 511, 631. In this case a release State, R. S. 1894, § 3365, provides that, in made by an infant to his guardian was all sales of real estate by an infant, a con- sustained, but the circumstances of that ditiou precedent to his right to disaffirm case were peculiar. The infant there not such a sale shall be the restoration to the only made the fraudulent representation purchaser of the consideration therefor, if as to his age, but he accepted in payment, the purchaser, acting in good faith, relied with the advice and consent of his father, upon false representations by the in- certain lands at a fair valuation, and, in fant that he was of age, and had good order to obtain those lands, the guardian reason to believe such representations to was obliged to execute a release to a third be true. party, from which he could not be relieved * Lacy v. Pixler, 120 Mo. 383, 25 S. "W. except by returning the lands, and this the Rep. 206. 8 DISABILITY OF MARRIED WOMEN UNDER AGE. [§7- III. Disability of Married Women under Age. 7. A married woman under the age of twenty-one years is subject to the disabilities of infancy,^ save only in Cd^es where 1 Infants attain their majority at the a<;e of twentj-oue years, except that in tlie following named States, while the age of majority for males is twenty-one years, for females it is eigiiteen years : — Arkansas: Dig. of Stats. 1884, § 3464. California : Civ. Code, § 25. Colorado : Annot. Stats. 1891, § 2081 ; Jackson v. Allen, 4 Colo. 263. Idaho: R. S. 1887, § 2405. Illinois: R. S. 1889, ch. 64, § 1. Iowa: Annot. Code 1888, § 3428. But all minors attain their majority by mar- riage. Kansas: G. S. 1889, § 3868. Minnesota: G. S. 1894, § 4534; Cogel v. Kaph, 24 Minn. 194. Missouri: R. S. 1889, § 5278. Montana: Comp. Stats. 1887, p. 981, § 1204. Nebraska: Comp. Stats. 1893, ch. 34, § 1. But in case a female marries between the age of six- teen and eighteen, her minority ends. Nevada: G. S. 1885, § 4943. North Da- kota: Comp. Laws 1887, § 2509. Ohio: R. S. 1892, § 3136. Oklahoma: Stats. 1893, § 3600. Oregon : G. L. 1892, § 2951. A female is deemed as having arrived at the age of majority upon her marriage. § 2953. South Dakota : Comp. Laws 1887. § 2.509. Utah : 2 Comp. Laws 1888, § 2560. But all minors obtain their ma- jority by marriage. Vermont : R. L. 1880, § 2421. Washington: G. S. 1891, § 1416. All females married to a person of full age shall be deemed and taken to \m of full age. § 1417. Other provisions as to minority are made in the following named States: — Florida : A relinquishment of dower ex- ecuted and acknowledged by a wife shall be valid notwithstanding her minority. R. S. 1892, § 1959. Indiana: Any married woman over the age of eighteen years, and under the age of twenty-one, may convey her right in and to any lands of her hiis- l)and, sold and conveyed by him, by ex- ecuting and acknowledging the execution of sucli conveyance, if the father (or, if there be no father, tiien the mother] of sucl) married woman shall diclare, befoie the olBcer taking such ackuowiedgmint, that he or she believes that such convey- ance is for the benefit of such married woman, and that it would be prejudicial to her and her husband lo be prevented from disposing of the lands thus con- veyed ; wliich declaration, with the name of such father or mother, shall be mserted as a part of the certificate of the Lfficer taking such acknowledgment. If tlie in- fant wife have no parent living, she n)ay join with her husband in conveyance of real estate, with consent of the judge of the circuit court of the circuit where such husband and wife reside. Aimot. Stats. 1894, §§ 3359, 3360. Louisiana: Minor- ity for both sexes continues tdl the age of twenty-one years. But a minor, whether male or female, is emancipated of right by marriage. A minor over the age of eighteen years may be relieved of minority on petition to the judge having jurisdic- tion. Civ. Code 1889, arts. 37, 379, 385. Maryland : A married woman, at whatever age she may be, may relinquish her dower in any real estate by the joint deed of herself and husband, or by her separate deed. Pub. G. L. p. 804, § 12. Pennsyl- vania : Evcrv conveyance executed and acknowledged by a wife in conjunction with her husband of his real estate shall be valid and effectual, notwithstanding the minority of the wife. 1 Brightly's Purdon's Dig 1 894, p. 635, § 33. Texas : A minor over the age of nineteen years may have his disabilities as a minor re- moved upon petition to the district court showing cause and a decree thereon. For all legal purposes the minor theren['f)n becomes of full age. 2 Civ. Stats. 1889, sirt. 3361a. Wisconsin: Every marri-d woman of the age of eighteen years and § 8.] DISABILITY OF INFANTS. she is enabled by statute to make a valid conveyance at an earlier ao-e.^ It" she lias made a deed or mortgage of her land during her minority, her husband joining in it, she may repudiate it on comin<'' of a<»e, and she is not bound to return the consideration.^ The fact that she was a mother at the time of executing a con- veyance and appeared of full age, and the grantee believed she was of full age when he purchased, does not estop her from show- in o- her infancy, where she made no representations as to her a<''e.^ Though an infant wife who had joined her husband in the conveyance of her land, the consideration of which was paid to him, had signed a written statement — declared to be made as an inducement to the carrying out of the contract — that she was above the age of twenty-one years, it was held that she might re- cover the land after she had been divorced from her husband, with- out paying back any of the consideration.'* The disability of infancy is not removed by a proviso in a deed to a married woman that nothing is to prevent her from selling said land if she shall desire to do so and her husband shall unite in the deed.^ 8. A relinquishment of dower by an infant feme covert by upwards may bar her dower in any real estate by joining with her husband, or with his guardian, in a conveyance thereof duly executed and acknowledged. Annot. Stats. 1889, § 2222. ^ Alabama : Greenwood v. Colemnn, 34 Ala. 150; Schaffer v. Lavretta, .57 Ala. 14. Arkansas: Harrod i;. Myers, 21 Ark. 592, 76 Am. Dec. 409; Watson v. Bil- lings, .38 Ark. 278, 42 Am. Rep. 1. Illi- nois: Hoyr V. Swar, 53 111. 134 Indiana ; 2 11. S. 1888, §§ 2939-2943; Scranton v. Stewart, 52 Ind. 68; Sims v. Smith, 86 Ind. 577 ; Bakes v. Gilbert, 93 Ind. 70. Maine: "Webb v. Hall, 35 Me. 336. Massa- chusetts: Walsh V. Younir, 110 Mass. 396. Minnesota: I G S. 1888, ch. 40, § 2. New York: Hool v. Mix, 17 Wend. 119,31 Am. Dec. 285 ; Sanford v. McLean, 3 Paige, 117,23 Am. Dec. 773. North Carolina: Epps V. Flowers, 101 N. C 158, 7 S. E. Eep. 680. Ohio: Hughes v. Watson, 10 Ohio, 127. Pennsylvania : Logan v. Gard- ner, 136 Pa. St. 588, 20 Am. St. Hep. 10 939. South Carolina : McMorris r. Webb, 17 S. C. 558, 43 Am. Rep. 629. Tennes- see: Mathersou v. Davis, 2 Coldw. 443; Scott V. Buchanan, 1 1 Humph. 468. Texas: Burr V. Wilson, 18 Tex. 367; Searcy r. Hunter, 81 Tex. 644, 17 S. W. Rep. 372, 26 Am. St. Rep. 838. ^ Walsh V. Young, 110 Mass. 396; Dill V. Bowen, 54 lud. 204 ; Losey v. Bond, 94 Ind. 67; Magee v. Welsh, 18 Cal. 155.- Dixon V. Menitt, 21 Minn. 196. 3 Sewellr. Sewell,92 Ky. 500, 18 S. W. Rep. 162; Buchanan v. Hubbard, 96 Ind. 1. See, however, Houston v. Houston (Tex ), 18 S. W. Rep. 688. * Sims V. Everhardt, 102 U. S. 300. 5 Sewell V. Sewell, 92 Ky. 500, 504, 18 S. VV. Rep. 162 ; Pryor, J., saying : "This provision does not remove the disability of either infancy or coverture, and she could convey only in the same manner as if that provision in the deed had been omitted." DISABILITY OF MARRIED WOMEN UNDER AGE. [§ 9. joining with her husband in a conveyance of his land is voidable by her on arriving at full age, but is operative until avoided.^ The deed and privy examination of a feme covert, taken under modern statutes, have no longer the effect of an assurance of record, like a fine, but may be collaterally impeached, on the ground of infancy or other disability.^ If a married woman makes a deed of her own land during minority, her husband join- ino- to make the deed valid under a statute so providing, she may disaffirm the deed upon coming of age, and the deed thereupon is avoided also as to the husband.'^ Even under statutes which give a married woman power to disaffirm her deed made during infancy, and to bring an action to recover the land, without the assent and even against the will of the husband, she is not estopped from avoiding her deed by reason of her omission to act for any length of time during her coverture.^ 9. If the disability of coverture is joined to that of infancy, where the common law relative to the husband's rights in her property prevails, the disability of coverture enables her to post- pone the act of avoidance to a reasonable time after the coverture is ended ; for by the marriage the husband acquired a vested free- hold in her lands, and became entitled to the rents and profits as long as the marriage relation might continue. When, therefore, such grantor became of age, she continued powerless to disturb the possession of the grantor, so long as her coverture lasted. An affirmance or disaffirmance necessarily implies the action of a free mind, exempt from all constraint or disability.^ 1 Law V. Long-, 41 Ind. 586; Priest v. ton v. Stewart, 52 Ind. 68,13 criticised, and Cummings, 16 Wend. 617; Feitner v. Miles v. Lingerman approved; Sims v. Lewis, 23 Jones & S. 519, 1 N. Y. Snpp. 1. Bardoner, 86 Ind. 87, 44 Am. Rep. 263 ; 2 Epps r. Flowers, 101 N.C.I 58, 7 S.E. Buchanan v. Hubbard, 96 Ind. 1; Rich- Rep. 680 ; Wright v. Player, 72 N. C. 94. ardson v. Pate, 93 Ind. 423, 47 Am. Rep. Under the statute of 1751, giving the deed 374. In Texas, where a married woman of an infant wife acknowledged on a privy cannot disaffirm by deed without the con- examination the effect of a fine and recov- sent of her husband, but may do so by suit, ery, her deed might be impeached during the court thought the common-law rule infancy, but not afterwards. Kidd v. should not apply, but still that coverture Venable, 111 N. C. 535, 16 S. E. Rep. should be considered in determining what 317. is a reasonable time for a disaffirmance. 3 Craig V. Von Bebbcr, 100 Mo. 584, 13 Searcy v. Hunter, 81 Tex. 644, 17 S. W. S. W. Rep. 906,18 Am. St. Rep. 569; Rep. 372, 26 Am. St. Rep. 837. Baglcy ?;. Fletcher, 44 Ark. 153. ^ Sims v. Everhardt, 102 U. S. 300; * Miles r. Lingerman, 24 Ind. 385 ; Sims Sims i\ Smith, 86 Ind. 577 ; Sims v. Bar- V. Eveihardt, 102 U. S. 300, where Scran- doner, 86 Ind. 87, 44 Am. Rep. 263 ; Miles 11 §§ 10, ii.J DISABILITY OF INFANTS. IV. Who may affirm or disaffirm Minority. 10. An infant cannot affirm or disaffirm his deed during his minority,' though the contrary was asserted by some of the early authorities. He may enter and take the profits, if he can, until he has the h'gal capacity to affirm or disaffirm his deed ; but his deed is not thereby rendered void ; it may still be confirmed after he is of full age.^ Before any act of disaffirmance can be adjudged to have; efiVct, it must be shown affirmatively that the grantor was no longer a minor at the time of such disaffirmance.'' 11. The right of an infant to avoid his deed on coming of age is during his lifetime a personal privilege. A creditor V. Lingermau, 24 Ind. 385; Richardson v. Pate, 93 lud. 423, 47 Am. Rep. 374 ; Wil- son V. Branch, 77 Va. 65, 46 Am. Dec. 709 ; Stringer v. Northwestern M. L. Ins. Co. 82 Ind. 100; Buchanan v. Hubbard, 96 Ind. 1 ; Stull V. Harris, 51 Ark. 294, 11 S. W. Rep. 104 ; Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1 ; Dodd v. Bentbal, 4 Heisk. 601 ; Mathersoa v. Davis, 2 Coldw. 443; iSIcMorrisr. Webb, 17 S. C. 558, 43 Am. Rep. 629 ; Epps v. Flowers, 101 N. C. 158, 7 S. E. Rep. 680; Mcllvaine v. Ka- del, 30 How. Pr. 193; Temple i;. Hawley, 1 Sandf. Ch. 153. See, however, Goodnow V.Empire Lumber Co. 31 Minn. 468, 18 N. W. Rep. 283, 47 Am. Rep. 798. Of course, a statute removing all the dii^abili- ties of coverture, the rule of the text does not apply, as in Mississippi : Brantley v. Wolf, 60 Miss. 420. In Indiana the stat- ute, R. S. 1881, § 1285, which removes the disability of coverture on the avoid- ance of deeds by infants, does not apply where an infant wife has joined with her husband in a conveyance of his land, so as to render necessary a disaffirmance by her within a reasonable time after attaining majority, since her only interest in the laud is inchoate, and no right of action accrues either to her to enforce her interest, or to the grantee to quiet his title, till the death of her husband. McClanahan v. Williams (Ind.), 35 N. E. Rep. 897. 1 Zouch V. Parsons, 3 Burr. 1794 ; Sims V. Everhardt, 102 U. S. 300, 313, per 12 Strong, J. ; Chandler v. Simmons, 97 Mass. 508, 512, 93 Am. Dec. 117; Bool V. Mix, 17 Wend. 119, 31 Am. Dec. 285; Shipley v. Bunn (Mo.), 28 S. W. Rep. 754; Cummiugs v. Powell, 8 Tex. 80; Kilgore v. Jordan, 17 Tex. 341 ; Welch i;. Bunce, 83 Ind. 382; Chapnuui V. Chapman, 13 lud. 396 ; McCormic r. Leggett, 8 Jones, 425 ; Singer Manuf. Co. V. Lamb, 81 Mo. 221 ; Armitage v. Widoe, 36 Mich. 124 ; Emmons v. Murray, 16 N. 11.385 ; Shipmau c. Horton, 17 Conn. 481, 483, per Williams, C. J.; McCarthy v. Ni- crosi, 72 Ala. 332, 47 Am. Rej). 418 ; Has- tings V. DoUarhide, 24 Cal. 195. But now, in California, Civ. Code, § 35, a minor may disaflirm his contract before his ma- jority, or within a reasonable time af- terwards. There is a similar statute in Dakota, Comp. Laws, 1887, § 2516. A decision not in hurmony with others is Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409. 2 Bool V. Mix, 17 Wend, 119, 31 Am. Dec. 285 ; Cummings v. Powell, 8 Tex. 80. No case has been cited in which an infant luis by liimself or his guardian attempted, while under age, to recover lands which have been passedfromhim by an exeeiited conveyance ; and it is probable thr.t no such case can lie shown. Per Kemphill, C.J. 3 Irvine v. Irvine. 5 Minn. 61 ; Kilgore V. Jordan, 17 Tex. 341. WHO MAY AFFIRM OR DISAFFIRM MINORITY. [§12- cannot avoid it by making an attachment of tlie land after the minor has come of age.^ An assignee in insolvency cannot dis- affirm a deed or mortgage made by the insolvent while under age, and not affirmed or disaffirmed by him after attaining his ma- jority. " The ground upon which an infant is allowed to void his contract is for his personal benefit, and for protection against the improvidence which is the consequence of his youth. He may therefore avoid his contract without returning the consideration received, but it is not easy to see why his creditors, or the as- signee as representing them, should have this right. It may well be that the estate of the insolvent has been augmented to that extent by the very sum of money which the minor received. The fact that the infant may rescind without returning the consider- ation indicates that the right is strictly a personal privilege, and that, as the rule permitting him to avoid his contract is established solely for his protection, so he alone can have the benefit of it." ^ 12. A guardian of a minor cannot maintain a suit to avoid a conveyance by his ward, for the guardian has no title to the property, but is merely an agent or attorney.^ The ward must be made a party to any suit which coucerus his title to property. 1 Baldwin u. Rosier, 1 McCrary, 384. Alabama : Sharp v. Kobei tson, 76 Ala. 343. Arkansas : Bozeman v. Browning, 31 Ark. 364. California: Hastings v. Dollarhide, 24 Cal. 195. Georgia: Code 1882, § 2732. Massachusetts: Kendall V. Lawrence, 22 Pick. 540; Oliver v. Houdlet, 13 Mass. 237,7 Am. Dec. 134; McCarty v. Murray, 3 Gray, .578 ; King- man V. Perkins, 1 05 Mass. 111. Michi- gan : Dunton v. Brown, 31 Mich. 182. Missouri : Singer Manuf. Co. v. Lamb, 81 Mo. 221. New Hampshire: Roberts v. Wiggin, 1 N. H. 73, 8 Am. Dec. 38. New York: Hartness v. Thompson, 5 Johns. I'M ; Beardsley v. Hotchkiss, 96 N. Y. 201. North Carolina: Hoyle v, Stowe, 2 Dev. & B. 320, 323. South Carolina: Lester v. l-'razer, 2 Hill Eq. 528. Texas : Harris v. r.Iusgrove, 59 Tex. 401. A trustee under a marriage settlement cannot refuse to render an account on the ground that the parties to it are infants, nei'lier of them having disaffirmed it. Jouca 17. Butler, 30 Barb. 641. - Mansfield v. Gordon, 144 Mass. 168, 10 N. E. Rep. 773, per Devens, J. 3 Lombard v. Morse, 155 Mass. 136, 29 N. E. Rep. 205. Barker, J., says : " The precedents favoring such an exception are found in England and in New York, where committees are ap])ointed for persons of un- sound mind, and arc founded in part u[ion the doctrine that the committee acquires some right in the ward's estate, and in part upon the ancient theory that no man can be heard to stultify himself. 1 Dan- iell Ch. Pr. 9, 83, 1 Story Eq. PI. 64, 65 ; Ortley v. Messere, 7 Johns Ch. 139 ; Gor- ham V. Gorham,3 Barb. Ch. 24. We have seen that here the guardian has no title or interest in the ward's estate. Boih in England and New York the lunatic may be joined with his committee; the rule against self-stultification bein;; held inapplicable to acts done to the prejudice of one's self. Ridler i-. Ridler, 1 Eq. Cas. Abr. 275, pi. 5; Gorhani v. Gorham, ubi supra." And see Lang v. Whidden, 2 N. H. 435. 13 §§ 13, 14.] DISABILITY OF INFANTS. Neither the infant nor his guardian can determine during the con- tinuance of infancy whether the deed shall be afllirnied or dis- atiiruied. This is a matter for the grantor's decision after he arrives at mature age.^ But if the guardiansliip, by reason of any disability ft)r which an adult might be placed under guardian- ship, continues after the ward has become of age, tlu; guardian may avoid any conveyance executed by the ward while under age which might be avoided by the ward himself if capable of exer- cising the right.- 13. The heirs of an infant grantor may avoid his deed in the same manner and within the same time that such grantor him- self might if living.3 Privies in blood may take advantage of the disability of infancy, though privies in estate cannot.* But a purchaser or devisee holding his right from the iufant, derived from him after he has reached full age, may avoid a prior deed of the same land made by the infant during his disability.^ V, What amounts to an Affirmance. 14. An infant on coming of age affirms his deed by any act whereby he recognizes the instrument as being in force accord- ing to its purport. *5 Thus, if, having made a mortgage while a 1 Dunton U.Brown, 31 Mich. 182. dletoa v. Hoge, 5 Bush, 478; Allen v. 2 Chandler v. Simmons, 97 Mass. 508, Poole, 54 Miss. 323 ; Wimberly v. Jones, 93 Am. Dec. 117. 1 Ga. Dec. 91 ; Hoyle v. Stowe, 2 Dev. & 3 Illinois Land Co. v. Bonner, 75 01. B. 320; Wheaton v. East, 5 Yerg. 41, 315 ; Person v. Chase, 37 Vt. 647, 88 Am. 26 Am. Dec. 251. Dec. 63; Veal v. Fortson, 57 Tex. 482; In Irvine v. Irvine, 9 Wall. 617, 627, Bozeman v. Browning, 31 Ark. 364 ; Har- Mr. Justice Strong, referring to the dis- vey V. Briggs, 68 Miss. 60, 8 So. Rep. 274 ; tinction between the nature of those acts Singer Manuf. Co. v. Lamb, 81 Mo. 221 ; which are necessary to avoid an infant's Parsons v. Hill, 8 Mo. 135 ; Sharp v. Rob- deed and the character of those acts that ertson, 76 Ala. 343. are sufficient to confirm it (acts which * Whittingham's Case, 8 Coke, 42ft; would not be sufficient to avoid a deed Austin V. Charlestown Female Seminary, being sufficient to affirm it), said : " There 8 Met. 196, 203, 41 Am. Dec. 497 ; Boze- is reason fur this distinction between the man v. Browning, 31 Ark. 364, 375 ; Hoyle effect of acts in avoidance and that of acts V. Stowe, 2 Dev. & B. 320, 322. of confirmation. We have seen that au 6 Breckenridge v. Ormsby. 1 J. J- infant's deed is not void ; it passes the Marsh. 236, 251,19 Am. Dec. 71 ; Shrock title of the land to his grantee. Now, V. Growl, 83 Ind. 243; Price i;. Jennings, if tlie deed be avoided, the ownership of 62 Ind. Ill; Pitcher v. Laycock, 7 Ind. the land is retransferred. The seisin is 398; Jackson r. Carpenter, 11 Johns. 539; changed. ... On the other hand, a con- Hoyle y. Stowe, 2 Dev. &B. 320, 323. fiirmation passes no title; it effects no « Irvine v. Irvine, 9 Wall. 617; Mid- change of property; it disturbs no seisin. 14 WHAT AMOUNTS TO AN AFFIRMANCE. [§ 14. minor, after coming of age lie conveys the laud subject to tlie mortgage, he thereby confirms the mortgage; ^ and he confirms it also by a part payment of such mortgage or of interest due upon it ; ^ or by procuring releases of portions of the land mortgaged.-^ A will made by one after coming of age, wherein he directs the payment of a debt secured by a mortgage, would doubtless be taken as a sufficient confirmation of a mortgage made by the testator during his infancy to secure the payment of such debt. But a general direction for the payment of " all his just debts" might not be sufficient.* If, after coming of age, the grantor ex- presses satisfaction with the sale and receives a part of the con- sideration money, this is a sufl&cient ratification of the deed.^ But a mere recognition of the fact that the grantor had made a conveyance is not of itself proof of a confirmation of such convey- ance.^ In a deed of a part of a tract of land made in pursuance of an arrangement to convey all of it, a refei'ence to a prior conveyance by the grantor, made while a minor, amounts to a con- firmation of such prior conveyance.' Where an infant, having made a conveyance of land, upon arriv- ing at full age joins with his grantee in executing a mortgage of the land to secure a debt of the grantee, he affirms his deed of conveyance.^ A mortgagor, after attaining his majority, by ac- cepting part of the proceeds of a foreclosure sale ratifies the mortgage.^ If a mortgagor after coming of age accepts a recon- veyance of the mortgaged land, and makes a fresh mortgage to the same mortgagee to secure the original debt and an additional loan, this is not merely a ratification of the mortgage made during his minority, but is a new contract upon a good consideration.^*^ It is, therefore, itself an act of a character - Kecgan v. Cox, 116 IMass. 289. less solemn than is the act of avoiding a ^ Wilson v. Darragh, 28 N. Y. St. Rep. deed, and it may well be effected in a less 390, 7 N. Y. Supp. 810. formal manner." * Merchants' F. Ins. Co. v. Grant, 2 1 Story V. Johnson, 2 Y. & C. Ex. 586 ; Edw. Ch. 544 ; Smith v. Mayo, 9 Mass. Boston Bank v. Chamberlin, 15 Mass. 220 ; 62, 6 Am. Dec. 28. Scott V. Buchanan, 11 Humph. 468; •''' Ferguson u. Bell, 17 Mo. 347. Palmer v. Miller, 25 Barb. 399; Lynde w. « Tucker v. Morelaud, 10 Pet. 58. Bi.dd, 2 Paige, 191, 21 Am. Dec. 84; Al- 7 PhiHips v. Green, 5 Mtu. 344. len V. Poole, 54 Miss. 323 ; Losey v. Bond, 8 Watkins v. Wassell, 15 Ark. 73. 94 lud. 67 ; Phillips v. Green, 5 Mon. » Darraugh v. Blackford, 84 Va. 509, 344, 355; Ward v. Anderson, 111 N. C. 5 S. E. l{ep. .542. 115, 15 S. E. Rep. 933 ; American Mortg. i ' fn rr Foulkes, 3 Reports (1893), 682, Co. V. Wright (Ala ), 14 So, Rep. 399. 69 L. T. 183, 15 § 15.] DISABILITY OF INFANTS. A minor's conveyance to Lis sister, without a valuable considei- atioi), is confirmed, after lie becomes of age, b}'- his acting as his sisti'r's agent in selling portions of the hmd, receiving commissions therefor, proclaiming title in her to purchasers, recognizing the land as hers in making settlements with her, making no objections to her conveyances, and failing to assert any right for a long period after attaining his majority. ^ A minor's lease is ratified by his receiving, after becoming of age, the rent falling due under it.^ But such act will not amount to a ratification unless it is done with a knowledge of the instrument to be affected.^ The voidable deed of an infant is not ratified by mere words; but any deliberate act done by him after coming of age, by which he takes benefit under a deed made while he was under age, or by which he expressly recognizes its validity, is a ratification of such deed. Thus, if he receives the whole or a part of the pur- chase-money due him under such deed, he ratifies the deed. He ratifies it by accepting a reconveyance from his grantee of a part of the land.* 15. A re-acknowledgment or redelivery of the deed after the grantor has become of full age is a ratification of it which relates back, in effect, to the original delivery. If the conve}'- ance so ratified is a mortgage the ratification will cut off a volun- tar}^ conveyance by the mortgagor in trust for his wife and children, executed after the making of the mortgage and before the ratification, for the purchaser under such voluntary deed is not a bona fide purchaser for value.'^ If a deed, signed and acknowledged by a person during his minority, be delivered by him, or by his iigent with his consent, after he becomes an adult, the deed cannot be avoided on account of infancy, for the deed does not take effect till the time of its delivery; and in such case there is no disability when the deed takes effect.^ A minor's deed is not ratified by his offering, after coming of age, to make a deed of ratification upon some contingency, such 1 Houston V. Houston (Tex.), 18 S. ^ McCormic v. Lepgett, 8 Jones, 425; W. Ik]). 688. Ferguson v. Bell, 17 Mo. 347. 2 Ashfield V. Ashficld, W. Jones, 1.57 ; 5 Palmer i;. Miller, 25 Barb. 399 ; Da- Myers V. Coal Co. 126 Pa. St. 582, 17 Atl. vidson v. Young, 38 111. 145 ; Murray v. Rep. 891. Slianklin, 4 Dev. & B. 289. 8 Zoobi-ich V. Kauch, 133 Pa. St. 532, '' Sims ;;. Smith, 99 Ind. 469, 50 Am. 19 Atl. Rci.. 415. Rep. 99. 16 WHAT AMOUNTS TO A DISAFFIRMANCE. [§§ 16, 17. as a condition that the unpaid purchase-money is paid or secured to him.^ If an infant, on coming of age, repudiates his deed, he cannot of course recover the purchase-money then remaining unpaid.^ 16. It is not essential to a ratification that it should have been made with knowledge that the grantor had a legal right to repudiate the deed,^ though there are many cases, paiticuhuly among the earlier ones, in which it is decUired that his 7-atific;ition must be with full knowledge of his legal rights.^ Theie would at least seem to be a presumption that a person who has attained his majoi'ity is aware of his rights in regard to contracts made by him during his minority.^ VI. What amounts to a Disaffirmance. 17. One may disaflBrm a deed made during infancy by any act done after coming of age which is inconsistent with such 1 Craic: V. Van Bebber, 100 Mo. 584, 13 S. \V. Rep. 906 ; Glamorgan v. Lane, 9 Mo. 442. 2 Crai- V. Van Bebber, 100 Mo. 584, 13 S. W. Rep. 906. 3 Morse v. Wheeler, 4 Allen, 570; American Mortg. Co. v. Wright (Ala.), 14 So. Rep. 399 ; Anderson v. Soward, 40 Ohio St. 325, 48 Am. Rep. 687 ; Clark V. Van Court, 100 Ind. 113, 50 Am. Rep. 774, disapproving dictum to contrary in Fetrow v. Wiseman, 40 Ind. 148 ; Ring v. Jamison, 66 Mo. 424, 2 Mo. Ajip. 584; Turner v. Gaither, 83 N. C. 357, 35 Am. Rep. 574. * The notion, that the ratification must have been made with knowledge that the grantor was not bound by his deed made while he was a minor, is declared by Met- calf, J., in Morse r. Wheeler, 4 Allen, 570, to have had its origin in a dictum of Lord Alvanley in Ilarmer v. Killing, 5 Esp. 102. "Yet we have found," continues Judge Metcalf, " no case in the Knglish reports in which the question has been raised, whether it is necessary to the rat- ification of such contract that the new ])romise should be made witli knowledge that the party was not legally liable on his original contract. And we find only VOL. I. one instance in which an English judge is reported to have expressed an opinion that such knowledge is necessary. Maw- son V. Blane, 10 Exch. 212, 26 Eng. L. & Eq. 560. Still there are cases in the state courts in which judges have cited, with apparent ajiproval, the position advanced by Lord Alvanley. In other cases judges have advanced the same position without referring to any authority. Smith v. Mayo, 9 Mass. 64 ; Ford v. Phillips, 1 Pick. 203 ; Thing V. Libbey, 16 Me. 57; Curtin v. Patton, 11 S. & R. 31 1 ; Reed v. Boshears, 4 Sneed, 118; Norris v. Vance, 3 Rich. 168. In no one of these cases was a de- cision of that point necessary, and they were all decided on other grounds." There are, however, some decisions and more dicta following Lord Alvanley's dic- tum. See Ilinely o. Margaritz, 3 Pa. St. 428; Zoebbish i'. Ranch, 133 Pa. St. .532 19 Atl. Rep. 415; Turner r. Gaither, 83 N. C. 357 ; Baker v. Kennett, 54 Mo. 82 Davidson r. Young, 38 111.145; Eureka Co. V. Edwards, 71 Ala. 248, 255, 46 Am Rep. 314, per Stone, J. ; Flexner i>. Dick erson, 72 Ala. 318, 323 ; Wilson t;. Md. L, Ins. Co. 60 Md. 150. 5 Hatch r. Hatch, 60 Vt. 172, 13 Atl. Rep. 791 ; Taft v. Sergeant, 18 Barb. 320. 17 § 18.] DISABILITY OF INl'AMTS. deed, so that the two cannot properly stand togetlier.^ Disaffirm- ance must be a matter both of act and intention. No particular act is necessary, and the intention need not be expressed in any particular manner or form. The ancient doctrine that the disaf- firmance should be of as high and solemn a character as the act disaffirmed has no place in modern law.^ Any act unequivocally nijinifesting an intention to disaffirm the deed is sufficient.^ " In respect to the avoidance of deeds made by infnnts, the current of modern decisions is to a liberal extension of the rule ; and the tendency is to establish one simpler, more conservative, and of easier and more general application, thereby avoiding many of the perplexing and refined distinctions under the strict rule which required the act of disaffirmance to be of equal notoriety and solemnity with the original act or conveyance, but which was never of universal application, for the deed could always be avoided by a proper plea."^ A suit to recover the purchase- money is an act of avoidance. A notice or letter to the grantor requesting the return of the purchase-money, with an intention to repudiate the purchase, is sufficient though the notice or letter be not followed by a suit for the purchase-money. An offer to re- convey is not essential to a complete disaffirmance. After suchi notice the purchaser cannot abandon the rescission and affirm the purchase. Though such rescission does not of itself re-transfer the legal title to the grantor, so as to enable him to recover the land by ejectment, he may maintain an equitable action for the cancellation of the deed to the grantee.^ 18. A minor's deed is disaflBrmed by his bringing a suit in equity to cancel it or set it aside on the ground of his disability ; ^ 1 Eureka Co. ?;. Edwards, 71 Ala. 248; J. See, also, McCarthy v. Nicrosi, 72 Illinois Land Co. v. Beem, 2 III. App. Ala. 332, 47 Am. Kip. 418. 390; Bagley v. Fletcher, 44 Ark. 153; ^ McCarty v. Woodstock Iron Co. 92 Mustard v. Wohlford, 15 Gratt. 329, 76 Ala. 4G3, 8 So. Kep. 417. Am. Dec. 209; Long w. Williams, 74 lud. o f^ms v. Evcrhardt, 102 U. S. 300; 115; Law I'. Long, 41 Ind. 586 ; Allen v. Schaffer v. Lavretta, 57 Ala. 14 ; Hari 195, 16 S. W. Rep. 140; Ring r. Burt, 17 Mich. 46.5, 97 Am. Dec. 200; Wilber v. Wilbcr, 52 Wis. 298, 9 N. W. Rep. 163 ; Ely v. Wilcox, 20 Wis. 523, 91 Am. Dec. 436. 3 Slanning v. Style, 3 V. Wms. 334; Freemantle v. Bankes, 5 Ves. 79 ; Arun- dell V. I'hipps, 10 Ves. 139, 149; Jones V. Cliftun, 101 U. S. 225; Moore v. Page, 41 § -t^'-] DISAlUI-llY OF MAUKIKl) WOMKN. such conveyiince is intended as a scUlenieut is dectlared iii the iiistiunuMit, or othei'wise cleuvly established, it Avill be sustained afninst the chduis of creditors, if it does not depiive them of any existing rights.^ Any good and meritorious eonsi(h;ratiou will 111 U. S. 117,4 S. Ct. 388; Walliiigs- ford V. Alleu, 10 Pot. 583 ; Smith v. Sei- bcrliiig, 35 Fed. Rep. 677. Alabama: McMillan r. Peacock, 57 Ala. 127 ; Meyer V. Sulzbadicr, 75 Ala. 423 ; Turner v. Kelly, 70 Ala. 85 ; Washburn v. Gard- ner, 76 Ala. 597; Powe v. McLeod, 76 Ala. 418 ; Maxwell v. Grace, 85 Ala. 577, 5 S. "W. Rep. 319. Arkansas : Ogden v. Ogden (Ark ), 28 S. W. Rep. 796; Dyer V. Bean, 15 Ark. 519. Colorado: Craig v. Chandler, 6 Colo. 543. Connecticut : Dem- ing V. Williams, 2G Conn. 226, 68 Am. Dec. 386. Illinois : Dale v. Lincoln, 62 111. 22. Indiana: Sims v. Rickets, 35 Ind. 181, 9 Am. Rep. 679; Thompson v. Mills, 39 Ind. 528; Brookbank r. Kenuard, 41 Ind. 339. Kansas : Ogden v. Walters, 12 Ivans. 282. Kentucky : Maramau ^\ Maraman, 4 Met. (Ky.) 84; Bohannon v. Tiavis, 94 Ky. 59, 21 S. W. Rep. 354. Maryland: Bowie !". Stonestreet, 6 Md. 418, 61 Am. Dec. 318. Massachusetts: Adams v. Brackett, 5 Met. 280 ; Phelps v. Phelps, 20 Pick. 556 ; Bancroft v. Curtis, 108 ^lass. 47. Michigan : Jordan v. White, 38 Mich. 253 ; Loomis v. Brush, 36 Mich. 40. Minnesota: Wilder v. Brooks, 10 Minn. 50, 88 Am. Dec. 49. Mississippi: Wells V. Wells, 35 Miss. 638; Ratcliffe v. Dougherty, 24 Miss. 181 ; Wells v. Trcad- wcll, 28 Miss. 717 ; Warren v. Brown, 25 Miss. 66, 57 Am. Dec. 191. Missouri: Crawford v. Whitmore, 120 Mo. 144, 25 S. W. Rep. 365; Pitts v. Sheriff, 108 Mo. 110, 18 S.W. Rep. 1071 ; Small w. Field, 102 Mo. 104; Turner v. Shaw, 96 Mo. 22, 8 S. W. Rep. 897 ; Wood v. Broadley, 76 Mo. 23, 31, 43 Am. Rep. 754. The cases of Cooper v. Standley, 40 Mo. App. 138, and Rangert v. Bangert, 13 Mo. App. 144, are overruled. Nebraska : Smith v. Dean, 15 N'jb. 432; Furrow v. Athey, 21 Neb. 671, 33 N. W. Rep. 208, 59 Am. Rep. 867. New Hampshire : Chailboiirue v. 42 Gilman, 64 N. II. 353 ; Jewell v. Porter, 31 N. H. 34. New Jersey : Vouglit v. Vought, 50 N. J. Eq. 177, 27 Atl. Rej). 489 ; Sipley v. Wass, 49 N. J. Eq. 463, 24 Atl. Rep. 233. New York : Hunt v. John- son, 44 N. Y. 27, 4 Am. Rep. 631 ; Towns- hend v. Townshend, 1 Abb. N. C. 81 ; Diefendorf v. Diefendorf, 8 N. Y. Supp. 617; Shepard v. Shepard, 7 Johns. Ch. 57, 41 Am. Dec. 396; Simmons v. Mc- Elwain, 26 Barb. 419 ; Tidlinger v. Mande- \\\h\ 113 N. Y. 432; Dean v. Metrojiol- itau E. Ry. Co. 119 N. Y. 540, 23 N. E. Rep. 1054, per O'Brien, J. The cases of Winans v. Peebles, 32 N. Y. 423, and White V. Wager, 25 N. Y. 328, are ex- plained in later decisions. North Caro- lina: Warlick v. White, 86 N. C 139, 41 Am. Rep. 453. Ohio : Crooks v. Crooks, 34 Ohio St. 610; Fowler v. Trebein, 16 Ohio St. 493, 91 Am. Dec. 95; Huber v. Huber, 10 Ohio, 371. Oregon: Miller v. Miller, 17 Oreg. 423, 21 Pac. Rep. 938. Pennsylvania : Coates v. Gerlach, 44 Pa. St. 43. Ehode Island : Barrows v. Kccne, 15 R. I. 484, 486. South Carolina: Trus- tees V. Bryson, 34 S. C. 401, 13 S. E. Rep. 619. Tennessee : McCampbell r. Mc- Campbell, 2 Lea, 661, 31 Am. Rep. 623. Texas: Story v. Marshall, 24 Tex, 305, 16 Am. Dec. lOn. Vermont: CardcU v. Ryder, 35 Yt. 47 ; Barron v. Barron, 24 Vt. 375. Virginia: Savers v. Wall, 26 Gratt. 354, 21 Am. Rep. 303; Jong's v. Obenchain, 10 Gratt. 259. West Virginia : Humphrey v. Spencer,- 36 W. Va. 11, 14 S. E. Rep. 410; McKenzie v. IJailroad Co. 27 W. Va. 306. Wisconsin : Albright V. Albright, 70 Wis. 528, 36 N. W. Rep. 254; Ilannan w. Oxley, 23 Wis. 519; Car- penter V. Tatro, 36 Wis. 297 ; Putnam v. Bicknell, 18 Wis. 333 ; Strocbe v. Fthl, 22 Wis. 337 ; Kinney i;. Dexter, 81 Wis. 80. 1 Moore V. Page, 111 IJ. S. 117. 4 S. Ct. 388, per Field, J. ; Jones v. Clifton, CONVEYANCE BETWEEN HUSBAND AND WIFE GOOD IN EQUITY. [§ 46. support sucli a deed. In equity an inquiry will be made into the motives, consideration, and objects to be accomplished by such conveyance. 1 If the conveyance is from the wife to the husband, there may be a presumption against its vahdity on account of the confidential relation of husband and wife, and the supposed domi- nant influence of the husband ; but this presumption is overcome by proof that the wife received adequate consideration ; that the conveyance was to her advantage, and was not obtained by duress or undue influence.^ When, however, the conveyance is from a husband to his wife, there is a presumption that it was intended for the wife's support, and is valid in equity, unless it was made in violation of the rights of creditors.^ 46. A conveyance directly by the husband to the wife creates in the wife a separate estate vesting in her the entire interest, without the use of the technical words necessary to create a separate estate in conveyances to her from persons other than the husband,^ " since otherwise the transaction, which was meant to have some effect, can have none in law or equity." ° The separate estate so created is the equitable separate estate, which is limited to the " sole and separate use and benefit " of a married woman. A trustee is ordinarily essential to the existence of this estate. When the conveyance is from a third person to a married woman to hold to her sole and separate use, the law gives to the husband a life interest in the land ; " but at the same time equity 101 U. S. 225; Miller u. Miller, 17 Oreg. 23 N. Y, Snpp. 792 ; Farmer i'. Farmer, 423, 21 Pac. Rep. 938; Trustees v. Bry- 39 N. J. Eq. 211. son, 34 S.C.401, 13 S. E. Rep. 619. 3 Fitzpiitrick v. Burchill, 7 Misc. Rep. 1 Smith V. Seiberlin-, 35 Fed. Rep. 463, 28 N. Y. Supp. 389 ; Miller v. Miller, 677 ; Waterman v. Higgins, 28 Fla. 660, 17 Oreg. 423, 21 Pac. Rep. 938 ; Wilder v. 10 So. Rep. 97 ; Dean v. Metropolitan Brooks, 10 Minn. 50, 55, 88 Am. Dec. 49 ; E. Ry. Co. 119 N. Y. 540, 23 N. E. Rep. Thompson v. Allen, 103 Pa. St. 44, 49 1054; Diefendorf i-. Diefendorf, 8 N. Y. Am. Rep. 116, if only a reasonable pro- Sup]). 617; Hunt v. Johnson, 44 N. Y. vi.-ion for her; Coatcs v. Gerlach, 44 Pa. 27, 4 Am. Rep. 631 ; Albright v. Albright, St. 43 ; Crooks v. Crooks, 34 Ohio St. 610; 70 Wis. 528, 36 N. W. Rep. 254 ; Crooks Wood i-. Broadley, 76 Mo. 23, 43 Am. V. Crooks, 34 Ohio St. 610; Wilder v. Rep. 754; Warlick v. White, 86 N. C. Brooks, 10 Minn. 50, 88 Am. Dec. 49 ; 139, 41 Am. Rep. 453, if a reasonable Furrow r. Atliey, 21 Neb. 671, 33 N. W. provision and the wife is not unworthy. Rep. 208, 59 Am. Rep. 867; Siuis v. * McJIillan v. Peacock, 57 Ala. 127; Rickets, 35 Ind. 181, 9 Am. Rep. 679; Pitts i-. Sheriff, 108 Mo. 110,115; Small Thompson v. Mills, 39 Ind. 528; Wells v. Field, 102 Mo. 104; Turner r. Shaw, V. Wells, 35 Jliss. 638; Chadl)Oiirne v. 9G Mo. 22 ; Doming )?. Williams, 26 Conn. Oilman, 64 N. H 353. 226, 68 Am. Dec. 386. 2 Berkowitz v. Brown, 3 Mi.sc. Rep. 1, ^ Bishop on Mar. Women, § 838. 43 § 47. J DI8AUII.I1Y OF MAi;i;i).l) WUMEN. sti'}>3 in Jiiul cliiuges wluitever Kgiil ownership is vested in the husband with the trust to hold for the separate use of the wife." ^ This equitable sepai'ate estate is to be distinguished from the sejnirate estate of a married woman created by h'gislation. This is an estate which without legislation would not have been sepa- rati% but subject to the common-law marital rights of the hus- band ; and not an estate which, by the instrument creating it, is freed from those rights, and is a separate estate in contemplation of a court of equity .^ All that is necessary to create an equitabh? separate estate is the expression, in the conveyance, of a clear intention to vest in the wife the entire property and interest conveyed. " ^V conveyance by the husband directly to tht; wife, without reservation, is necessarily a clear, unequivocal manifesta- tion and declaration of the intention to relinquish his own rights, and to clothe the wife with them, and that intention a court of equity will carry into effect." ^ 47. A deed from the wife to the husband may be valid in equity where a consideration has been paid, or the husband is en- titled to equitable relief for improvements made by him upon his wife's land.* While at law a conveyance by a husband to his wife is equally void as a conveyance by a wife to her husband, they do not necessarily stand upon the same basis in equity. It is the duty of the husband to provide an assured support for his wife, but no such duty rests upon the wife to provide for her husband ; and therefore his deed might be sustained in equity as a settlement, while her deed would be invalid for want of a con- sideration. 1 Bishop on Mar. Women, § 800. * Winans v. Peebles, 32 N. Y. 423 ; 2 McMillan v. Peacock, 57 Ala. 127. Brooks v. Keams, 86 111. 547. 8 Mc:Mil!an i;. Peacock, 57 Ala. 127, 130, per Bricknell, C. J. 44 CHAPTER III. DISABILITY OF INSANE PERSONS. I. Presumption and proof regarding in- IV. Confirmation and disaffirmance of sanity, 48-51. deed of insane grantor, 59-66. II. Deed of insane perj;on under guar- V. Restoring consideration on disaffirm- dianship void, 52-54. ance, 67-69. III. Burden of proof where there is no i VI. Title of purchaser in good faith, 70- guardianship, 55-58. I 73. I. Presumption and Proof regarding Insanity. 48. Sanity is presumed until insanity is proved.^ It is difficult to fix the exact line where sanity euds and insanity be- gins. The common law has not drawn any discriminating liue.^ It may be said in general that a person has a legal capacity to contract when he is in the possession of mental capacity sufficient to transact his business with intelligence.^ It is not requisite, however, that he should be able to manage his business with judg- 1 Jones V. Jones, 137 N. Y. 610, 33 N E. Rep. 479, affirming 17N. Y. Supp.479: Jackson v. King, 4 Cow. 207, 15 Am. Dec 354 ; Argo v. Coffin, 142 111. 368, 32 N. E Rep. 679 ; Myatt v. \Yalker, 44 111. 485 ; Menkins v. Lightner, 18 111. 282; Guild V. Hull, 127 111. 523, 20 N. E. Rep. 665; Titcomb v. Vantyle, 84 111. 371 ; Buckey V. Buckey, 38 W. Va. 168, 18 S. E. Rep. 383; Hiett v. Shall, 36 W. Va. 563, 15 S. E. Rep. 146 ; Perkins v. Perkins, 39 X. II. 163 ; Dennett v. Dennett, 44 N. H. 531, .539, 84 Am. Dec. 97. 2 Jackson v. King, 4 Cow. 207, 218, 15 Am. Dec. 354, per Woodworth, J. 8 Creagh v. Blood, 2 Jones &, Lat. 509; Ex parte Barnsby, 3 Alk. 1G8, per Lord Hardwicke ; Ilovey v. Chase, 52 Me. 304, 83 Am. Dec. 514; Hill v. Nash, 41 Me. 585, 66 Am. Dec. 266 ; Darby r. Ilay- ford, 56 Me. 246; Moffit v. \Yithers;,oon, 10 Ired. 185; Crowther i;. Rowiandsou, 27 Cal. 376 ; Seerley v. Sater, 68 Iowa, 375, 27 N. W. Rep. 262 ; Marshall v. Marshall, 75 Iowa, 132, 39 N. W. Rep. 230; Cocke V. Montgomery, 75 Iowa, 259, 39 N. W. Rep. 386 ; Stewart i;. Lispenard, 26 Wend. 255 ; Dennett v. Dennett, 44 N. H. 531, 84 Am. Dec. 97 ; Valentine v. Lunt, 51 Hun, 544, 3 N. Y. Supp. 906 ; Van Deu- sen V. Swift, 51 N. Y. 378 ; Searle v. Gal- brath, 73 Dl. 269 ; De Witt v. Mattison, 26 Neb. 655, 42 N. W. Rep. 742; Wil- kinson V. Sherman, 45 N.J. Eq. 413, 18 Atl. Rep. 228. In Crowther v. Rowlandson, supra, a conveyance was set aside upon proof thut the grantor was not capable of taking rational care of his property by reason of a mental delusion; Sanderson, C. J., dis- senting on the ground that the grantordid some sane acts at the time of the convey- ance. 45 § 48.] DISABILITY OF INSANE TERSONS. niojit ami iVisciTinnent, or in u proper :uk1 prudent manner ; for many sane men cannot do tliis. A man is of unsound mind, and disqualilled to enter into a contract, when he is without an intel- limMit understanding of wdiat he is doing, — when he is without what in the old phraseology was termed " discourse of reason." In other words, unsoundness of mind imports an entire want of in- telligent understanding, not a mere weakness of understanding.^ In general terms it may be said that, to make a valid deed, the . 4«, 10 N. E. Rep. 735. Michigan : Sponable ». Hanson, 87 Mich. 204, 49 N. W. Rep. 644; Leonardson v. Kulia, 64 ^lich. 1, 31 N. W. Rep. 26. Nebraska : John.«on v. Phifer, 6 Neb. 401 ; MuUoy v. Ingalls, 4 Neb. 115 ; Cole v. Cole, 21 Neb. 84, 31 N. W. Rep. 493. New Hampshire : Dennett r. Dennett, 44 N. H. 531, 84 Am. Dec. 97. New Jersey : Blakeley v. Blakeley, 33 N. J. Eq. 502. New York : Jacksun v. King, 4 Cow. 207, 15 Am. Dec. 354; Sprague V. Duel, Clarke, 90 ; Jones v. Hughes, 15 Abb. N. C. 141; Davis v. Culver, 13 How. Pr. 62 ; Odell v. Buck, 21 Wend. 142; Sprague v. Duel, 11 Paige, 480; Van Deusen v. Sweet, 51 N. Y. 378. North Carolina: Goodman ?'. Sapp, 102 N. C. 477. 9 S. E. Rp.483. Pennsyl- vania: Aiman i-. Stout, 42 Pa. St. 114. Rhode Island: Anthony i;. Hutcbins. 10 R. I. 165. Texas: Beville i'. Jones, 74 Tex. 148, 11 S. W. Rep. 1128. Vermont: King I'. Cummintrs, 60 Vt. 502, 11 Atl. Rep. 727. Virginia: Beverley v. Walden, 20Gratt. 147. West Virginia : Whittaker V. Southwestern Va. Imp. Co. 34 W. Va. 217, 224, 12 S. E. Rep. 507. Wisconsin: Wright V. Jackson, 59 Wis. 569, 18 N. AV. Rep. 486 ; Hender.son v. McGregor, 30 Wis. 78. 4T §^50,51.] DISAI'.ILIIV OK IXSANE PhliSON'S. dis[>os:il, the evuK'Uce must show that liis luiinl is so far iiupaired that he cannot transact business in a rational iiuiiiiiii-. Old age alone is no proof of incapacity to exiciite a deed.^ Tims a deed will not be sit aside on the nieie evidence that the grantor was ninetj'-two years old, and was afflicted with the usual bodily infirmities of a man of his age.^ Mere difficulty of speech, following an attack of paralysis, is no evidence of mental condition.^ 60. The deed of a monomaniac cannot be avoided on the ground of the monomania, unless he was incapacitated from ex- ercising his judgment in the transaction.* Thus, one who is a monomaniac on tlie sul>ject of religion may be wholly competent to transact general business and to execute a deed. The question in such case is, has the transaction been affected by the grantor's mania? Proof that his mind was in a morbid condition on a subject wholly disconnected with the transaction is irrelevant.^ But proof of a specific monomania which might influence him in regard to a particular conveyance,^ or an insane delusion that the world was about to come to an end, which rendered him wholly indifferent about property, will invalidate his conveyance executed while subject to such delusion.'^ 51. A person deaf and dumb from his birth is not for that reason legally incapacitated from executing a deed ; but the deed 1 Buckey v. Buckey, 38 W. Va. 168, N.J. Eq. 502; Lozear u. Shields, 23 N. J. 18 S. E. Kep. 383 ; Iverr v. Lunnsford, Eq. 509; Eatou v. Eaton, 37 N. J. L. 108, 31 W. Va. 659,8 S. E. Rep. 493 ; Greer 18 Am. Rep. 716; Alston v. Boyd, 6 r. Greer, 9 Gratt. 330; Jarrett v. Jarrett, Humph. 504. 11 W. Va. 584; Burt v. Quisenberry, 132 « Lemon f. Jenkins, 48 Ga. 313. 111. 385, 24 N. E. Rep. 622; "Walton r. "^ Bond i;. Bond, 7 Allen, 18, per Bige- Northin{rton, 5 Sneed, 282. low, C. J. : " If it apjieared that she was 2 Puine v. Aldrich, 14 N. Y. Supp. affected with mental disease, which had 538, affirmed 133 N. Y. 544, 30 N. E. Rep. culminated in a delusion that she and those 725. who would inherit her property, or for ^ Doran v. McConlogue, 150 Pa. St. 98, whose ))ecuniary interest and welfare she 24 Atl. Rep. 357. would in the exercise of her reason have * Dennett v. Dennett, 44 N. II. 531, 84 provided, were about to jierLih, and that Am. Dec. 97 ; Burgess r. Pollock, 53 Iowa, thereby she was rendered indifferent to 273,5 N. W. Rep. 179, 36 Am. Rep. 218; property, and incapableof appreciating its Hovey v. Hobson, 55 Me. 256; Ekin v. uses and value, and had become reckless of MrCracken, 11 I'hila. 534, 32 Leg. Int. or insensible to her own interests, or the 405. interests of those dependent upon her or * Oeagh V. Blood, 2 Jones & Lat. 509 ; connected with her, she certainly was not Campbell V Hill, 22 U. C. C. P. 526, 23 competent to make a valid disi)Osition of U. C. C. P. 473 ; Biakelev v- Blakelev, 33 her properfv bv deed." 48 ' DEED OF INSANE PERSON UNDER GUARDIANSHIP VOID. [$ 62. of such a person is good if he in fact had an understanding and capacity sufficient to enable him to make such conveyance.^ II. Deed of Insane Person under Guardianship void. 52. The deed of an insane man under guardianship is abso- lutely void. The guardianship is conclusive respecting the ward's disability, whatever may have been the cause of his insanity.^ The assent of the guardian of such ward to the deed of the latter confers no element of validity upon that instrument. Where a guardian has been appointed of a person, in consequence of an inquisition that has found him to be of unsound mind and inca- pable of managing his own affairs, the decree is notice to all the world of his incapacity to contract, and this incapacity is pre- sumed to continue so long as the guardianship continues.^ His contract while under guardianship cannot be supported by evi- dence of his lecover}'- or of a lucid interval. A decree of a surrogate that a testator was of unsound mind, and incapable of executing a will at the time of its execution, is prima facie but not conclusive evidence of the invalidity of a deed executed by the decedent on the same day as the will* But proceedings under a statute, authorizing a judge or other officer to commit a person to a hospital or an insane asylum for care and treatment, are not evidence of mental incapacity to make 1 Brown v. Brown, 3 Conn. 299, 8 Am. 280 ; White v. Palmer, 4 Mass. 147. Mis- Dec. 187. "If, superadded to the depri- souri : Rannells v. Gemer, 80 Mo. 474. vation of the two senses before mentioned. New York: Fitzhugh y. Wilcox, 12 Barb, the grantor had been blind, he would be 235; Brown v. Miles, 61 Hun, 453, 16 considered in law as incapable of any un- N. Y. Supp. 251; Griswold v. Miller, 15 durstanding, being deficient in those inlets Barb. 520 ; Wadswovth v. Sherman, 14 which furnish the human mind with ideas." Barb. 169; Van Deusen v. Sweet, 51 Per Hosmer, C. J. Barnett v. Barnett, I N. Y. 378. Pennsylvania : Imhoff v. Wit- Jones Eq. 221 ; Brower i-. Fisher, 4 Johns, mer, 31 Pa. St. 243; Klohs v. Klohs, 61 Ch. 441. Pa. St. 245; Rogers v. Walker, 6 Pa. St. 2 Connecticut: Griswold v. Butler, 3 371, 47 Am. Dec. 470. Texas: Elston Conn. 227. Indiana: Copenrath v. Kien- v, Jasper, 45 Tex. 409; Grimes v. Shaw by, 83 Ind. 18. Kansas: New England (Tex.), 21 S. W. Rep. 718. Wisconsin: L. & T. Co. V. Spider (Kans.), 38 Pac. Mohr r. Tulip,40 Wi.s.66. Rep. 799. Kentucky: Pearl v. Mc- 8 Imhoff v. Witmer, 31 Pa. St. 243; Dowell, 3 J. J. :Marsh. 658, 20 Am. Dec. Rannells v. Gerner, 80 Mo. 474. And see 199. Maine: Hovey v. Hobson, 53 Me. Thomas y. Hatch, 3 Sumn. 170. 451, 89 Am. Dec. 705. Massachusetts: * Baxter v. Baxter, 76 Hun, 98, 27 N. Wait V. Maxwell, 5 Pick. 217, 16 Am. Y. Supp. 834. Dec. 391 ; Leonard v. Leonard, 14 Pick. VOL. I. 49 § 6o.] DlSAr.lLIlY OF INSAN1-; TKHSONS. contracts on the part of the person committed to the hospital or asyhim. The proceedings are quite different fiom those which au- thorize the appointment of a guardian of an insane person. 'J'he statutory proceedings for this purpose are not materiall}' different from those on the writ de lunatieo inquirendo at common hiw, ex- cept that the hearing is before the court, instead of before commis- sioners with a jar}'. Such proceedings, foHowed by a finding of insanity and the appointment of a guardian, are evidence of the ward's insanity in any transaction and in colUiteral proceedings.^ Whether the owner of hind is capable of executing a deed, or should have a guardian appointed, may also be determined in equity upon the appointment of a commission de lunatieo inqui- rendo? The court has jurisdiction to issue a commission, either in case the alleged lunatic is a resident of the State or is the owner of property in the State, though a non-resident.^ 53. An adjudication of insanity made after the execution of a conveyance is not conclusive but only presumptive evi- dence of incapacity. Even when, after the execution of the deed, the grantor is found upon an inquisition to have been of unsound mind from a time prior to the execution of the deed, such inqui- sition and finding are presumptive but not conclusive evidence of the grantor's incapacity to execute the deed.^ If the transaction was a fair one, for a full consideration and without notice of the lunacy to the purchaser, the deed will not be set aside merely on the ground that the time of the execution of the deed is over- reached by the inquisition of lunacy.^ If the guardianship has been practically abandoned without judicial action, and the grantor is in fact of sound mind at the time of executing the deed, this will not be conclusively presumed 1 Knox V. Hang, 48 Minn. 58, 50 N. W. Mainwaring, 2 Beav. 115; Niell v. Mor- Rep. 934. ley, 9 Ves. 478 ; Van Deusen v. Sweet, 51 2 In re Farrell (N. J. Ch.), 27 Afl. Rep. N. Y. 378 ; In re Christie, 5 Paige, 242 ; '813. L'Amoureaux v. Crosby, 2 Paige, 422, 3 Ex parte Southcote, 1 Amh. 109, 2 427, 22 Am. Dec. 655; Osterlioutw. Shoe- Ves. Sr. 401 ;/« re Duchess of Chandois, maker, 3 Hill (X. Y.), 513; Hirsch v. 1 Sehoales & L. 301; In re Houstoun, 1 Trainer, 3 Abb. N. C. 274; Yaugcr v. Russ. 312 ; In re Perkins, 2 Johns. Ch. Skinner, 14 N. J. Eq. 389 ; Hunt v. Hunt, 124 ; In re Fowler, 2 Barb. Ch. 305; In re 13 N. J. Eq. 161 ; Miskey's App. 107 Pa. Child, 16 N.J. Eq. 498; In re Devausney St. 611 ; McGinnis v. Commonwealth, 74 (N. J. Eq.), 28 Atl. Rep. 459. Pa. St. 245 ; Klohs v. Klohs. 61 Pa. St. * Snooks V. Watts, 11 Beav. 105 ; Ja- 245 ; Arnold v. Townsend, 14 Phila. 216. cobsr. Richards, 18 Beav. 300 ; Frank v. ^ Yaiiger v. Skinner, 14 N. J. Eq. 389. 50 DEED OF INSANE PERSON UNDEK GUARDIANSHIP VOID. [§ 54. to be void. The burden in such case, of proving the teiniinntion of the guardianship and the actual restoration of the lunatic, is upon tlje party relying upon the deed.^ 54. But the deed of an insane man, before he is adjudged insane and put under guardianship, is not void but voidable, and may be confirmed or avoided by him when he afterwards be- comes sane, or by Ijis heirs.^ By force of statutory provisions in exceptional cases, the insanity of a grantor may render a deed void and not merely voidable. Thus, under a statute which pro- vides that the husband must join in a deed made by his wife to convey her land, if her husband joins in such deed while insane, 1 Elston V. Jasper, 45 Tex. 409 ; Mohr V. Tulip, 40 Wis. 66. '^ Thomjjsou V. Leach, 3 Mod. 296, 2 Kent Com. 451 ; Tucker v. Moreland, 10 Pet. 58 ; Thomas v. Hatch, 3 Sumii. 170. Illinois: Scanlan o. Cobb, 85 HI. 296; Burnbam v. Kidwell, 113 111. 425. Indiana: Freed v. Brown, 55 Ind. 310; Nichol V. Thomas, 53 Ind. 42 ; Schuff v. Ransom, 79 Ind. 458 ; Musselman v. Cra- vens, 47 Ind. 1 ; Croiise v, Holman, 19 Ind. 30 ; Somers v. Pumphrey, 24 Ind. 231 ; Fay V. Burditt, 81 Ind. 433, 42 Am. Rep. 142; Copenrath v. Kienby, 83 Ind. 18; Beyer v. Bcnyman, 123 Ind. 451, 24 N. E. Rep. 249 ; Northwestern L. Ins. Co. v. Blankenship, 94 lud. 535, 48 Am. Rep. 185 ; Physio-Medical College v. Wilkin- son, 108 Ind. 314, 317. Kansas : Gribben V. Maxwell, 34 Kans. 8, 7 Pac. Rep. 584. Kentucky : Breckeuridge i^. Ormsby, 1 J. J. Marsh. 236, 19 Am. Dec. 71 ; Rusk v. FentoD, 14 Bush, 490, 29 Am. Rep. 413. Maine: llovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705 ; Ilovey v. Chase, 52 Me. 304,83 Am. Dec. 514. Massachusetts: Wait V. Maxwell, 5 Pick. 217, 16 Am. Dec. 391; Seaver v. Phelps, 11 Pick. 304, 22 Am. Dec. 372; Allis v. Billings, 6 Mete. 415, 39 Am. Dec. 744; Arnold v. Rich- mond Iron Works, 1 Gray, 434 ; Gibson V. Soper, 6 Gray, 279, 66 Am. Dec. 414. Maryland : Evans v. Iloran, 52 Md. 602 ; Key V. Davis, 1 Md. 32 ; Chew v. Bank, 14 Md. 299. New Hampshire : Young v. Steven.s, 48 N. II. 13;5, 2 Am. Rep. 202, 97 Am. Dec. 592. New Jersey : Blakeley V. Blakeley, 33 N. J. Eq. 502 ; Eaton v. Eaton, 37 N J. L. 108, 18 Am. Rep. 716 ; Yauger v. Skinner, 14 N. J. Eq. 389. New York: Ingraham v. Baldwin, 9 N. Y. 45; Jackson v. Gumacr, 2 Cow. 552. In Van Deusen v. Sweet, 51 N. Y. 378, it is broadly stated that such a deed is void; l)ut in that case the deed was executed at a time when the grantor, as afterwards adjudged, was insane, and therefore the case is an authority only that the deed of an insane person, made at a time when he was a lu- natic as afterwards adjudged, is absolutely void. Brown v. Miles, 61 Hun, 4.53, 16 N. Y. Supp. 251, is a similar case. See, also, Mutual Life Ins. Co. v. Hunt, 79 N. Y. 54 1 . North Carolina : Odom v. Rid- dick, 104 N. C. 515, 10 S. E. Rep. 609 ; Riggan v. Green, 80 N. C. 236, 30 Am. Rep. 77. Pennsylvania : Snowden v. Dunlavey, 11 Pa. St. 522; Crawford v. Scovell, 94 Pa. St. 48, 39 Am. Rep. 766. Texas : Elston v. Jasper, 45 Tex. 409 ; Pearson v. Cox, 71 Tex. 246, 9 S. W. Rep. 124. There are a few decisions to the effect that the deed of an insane person is ab- solutely void, and not merely voidable, though he had not been adjudged insane. Elder v. Schumacher, 1 8 Colo. 433, 33 Pac. Rep. 175, Elliott, J., dissenting ; Goodyear V. Adam.s, 5 N. Y. Supp. 275, affirmed 119 N. Y. 6.50, 23 N. E. Rep. 1149; Rogers V. Blackwell, 49 Mich 192, 13 N. W. Rep. 512. 51 § 55.] DISABILITY OF INSANP: PERSONS. the cUhmI is void to the same extent that it would have been liad tlie liusband not joined in it. If the deed of the wife alone would be void, her deed, with the assent of her husband when he was incapable of giving assent, is also void. His subsequent assent to the deed, or his ratification of it, would not fulfil the require- ments of the statute, or give validity to the deed of the wife.^ The deed of an insane person not under guardianship is bind- ing until it is disaffirmed •,'^ and it can be disaffirmed only by the grantor or his heirs or devisees. III. Burden of Proof where there is no Guardianship. 55. The burden of proof that the execution of a deed was procured while the grantor was of unsound mind is upon the party who alleges the insanity .^ This is the rule in case a prior continuous mental incapacity has not been shown. In case his incapacity has been only occasional and temporary, and his deed is not lacking in consideration, and was not obtained by fraud or other unfairness, and the act was reasonable and natural, the burden of proving incapacity at the time of the conveyance is on the party claiming that the deed is invalid.^ If in any case the evidence in regard to the grantor's mental condition is conflicting, the fact that the transaction is unnatural and unreasonable may be decisive of the question of capacity." Insanity, like any other fact, must be proved. It is a question for the jury." Neighbor- hood reports or rumors are wholly inadmissible in evidence.^ Such evidence, being inadmissible to prove the fact, is inadmissible to prove that a subsequent purchaser in good faith had notice of 1 Leggate v. Clark, 111 Mass. 308. And ^ Bressey v. Gross (Ky.), 7 S. W. Rep. Bee Elliot v. Ince, 7 De G., M. & G. 475. 150. Now, in Massachusetts, a married woman ^ Young v. Stevens, 48 N. H. 133, 2 may convey her land in the same manner Am. Rep. 202, 97 Am. Dec. 592 ; Ploob- as if she were .sole, only that the husband ler v. Iloobler 128 111. 645, 21 N. E. Rep. cannot be deprived of his estate by the 571 ; West v. Douglass, 145 111. 164, 34 curtesy without his consent. Pub. Stats. N. E. Rep. 141. ch. 1 47, § 1 . '' Ashcraf t v. De Armond, 44 Iowa, 229 ; 2 Howe i\ Howe, 99 Mass. 88. Myers ?•. Knabe, 51 Kans. 720, 33 Pac. » Howe I'. Howe, 99 Mass. 88 ; Kennedy Rep. 602. The findings of a master as to V. Marrast, 46 Ala. 161, 168; Elcessor the mental condition of a grantor, con- r. Elcessor, 146 Pa. St. 359, 23 Atl. Rep. firmed by the court below, are to be treated 2.30. as if established by the verdict of a jury, ■* Stewart v. Flint, 59 Vt. 144,8 Atl. and not to be disregarded except for a plain Rep. 801. mistake. Doran »;. McConlogne, 150 Pa. St. 98, 24 Atl Rep. 357. 52 BURDKN OF PROuF WHEKE THERE IS NO GUARDIANSHIP. [§ 66. such faet.^ But a witness, though not an expert, who has had an opportunity to form an opinion as to the grantor's capacity to transact business from a knowledge of his acts, m;iy give in evi- dence his opinion, based on these facts, of the grantor's mental capacity.^ The witness should, however, in the first place testify to specific facts showing mental unsoundness on the part of the grantor before giving any opinion in regard to his mental un- soundness. ^ 56. The question of insanity is one that relates to the time of making the deed,* though, if a person has been placed under guardianship as one no7i compos mentis, so long as the guardian- ship continues it is presumed that he remains in that condition, and that his deed made while under guardianship is void. But the fact that a guardian was appointed of a grantor nearly a year after the execution of his deed is not admissible evidence that he was insane at the time of making the deed.^ To establish the fact that the grantor was of unsound mind at the time he executed the deed, it is not necessary to show that he had, either before or after that tiuie. on an inquisition been found to be iiisane and placed under guardianship.^ If no guardian has been appointed, and it is shown that the grantor has been insane at intervals, the grantee can establish the validity of the deed only by clear and satisfactory evidence that it was executed by the grantor during a lucid interval." Evidence of the grantor's insanity at a time either prior or subsequent to the execution of the deed is admissible as tending to prove his insanity at the time of its execution, provided the matters offered in evidence are not too remote from that time, and are connected by other evidence with the time of the execu- tion of the deed.^ 1 Greenslade u. Dare, 20 Beav. 284. 514; Nichol v. Thomas, 53 Ind. 42; 2 Connecticut Mut. L. Ins. Co. t;. La- O'Neill v. Nolan, 21 N. Y. Supp. 222, 68 throp, 111 U.S. 612, 4 Sup. Ct. Rep. 533; Hun, 631. Woodcock V. Johnson, 36 Minn. 217, 30 ^ Ilovcy v. Chase, 52 Me. 304, 83 Am. N. W. Rep. 894 ; Finney's Will, 27 Minn. Dec. 514. 280, 6 N. W. Rep. 791, 7 N. W. Rep. 144 ; » Freed v. Brown, 55 Ind. 310. Fisliburne i-. Fur<,Mison, 84 Vn. 87, 4 S. F. '' Ripley v. Bubeock, 13 Wis. 425. Rfp. 575. '^ Nichol v. Thomas, 53 Ind. 42 ; Wil- 3 Doriin r. McConluf^ue, 150 I'a. St. 'J8, Liiison u. I\a-son, 23 Pii. St. 117 ; Ash- 24 Atl. Rep. 357. craft v. De Armond, 44 Iowa, 229 ; Grant * Fkin r. McCraeken, 11 Rhila. 534; v. Thompson, 4 Conn. 203,10 Am. Dec. Hovey r. Ciiase, 52 Me. 304, 83 Am. Dec. 119; Hendrix t'. Money, 1 Bush, 306; 63 § 57.] DISABILITY OF INSANE PERSONS. A iIchhI will not be set aside on account of the mental unsound- ness of the g-rantor upon evidence of such unsoundness so great, six months after the execution of the deed, as to incajjucitate him to transact any business, when there is no direct evidence as to his condition at the time of the execution of the deed, and all the evidence shows that his malady was of a progressive nature, and that it was not until three months after executing the deed that it became so serious as to incapacitate him.^ If a mortgagor was of sufficient mental capacity at the time of executing the mortgage, his subsequent insanity does not affect the remedy by foreclosure, or suspend a power of sale contained in the mortgage.^ And so the insanity of a purchaser of the equity of redemption does not invalidate a sale under a deed of trust to which the proj^erty was subject.^ 57. Because a person has been insane at some period of his life, it does not follow that he remains insane, and cannot afterwards make a valid contract. His insanity may have been temporary. It may have been the result of a violent disease which affected his mental faculties only so long as the disease itself lasted. Therefore, to avoid a deed on the ground of the grantor's insanity, proof of insanity at an earlier period is not effectual unless accompanied by proof that the insanity continued to a point of time which bears directly upon the execution of the deed in question.* On the other hand, a decree of a probate court dismissing a petition for the appointment of a guardian of a person alleged to be insane, and, on appeal from such decree, a verdict of a jury and a judgment of a supreme court in favor of his sanity are not conclusive evidence of his sanity at a time intermediate between such decree and verdict, in an action to set aside a deed made by him between such dates; but such decree and verdict are admis- sible in evidence tending to prove his sanity.^ "Worthington v. Campbell (Ky.)- 1 S. W. E. Kep. 753; Vanmeter v. Darrah, 115 liep. 714; Jerry v. Townshend, 9 Md. Mo. 153, 22 S. W. Rep. 30; Meyer r. 145 ; Harden I'. Hays, 14 Ta. St. 91 ; Wat- Knecliler, 10 Mo. App. 371 ; Bevia v. sun V. Anderson, 11 Ala. 43. rowcll, 83 Mo. 365, 11 Mo. App. 216. 1 Ilasbroiiek v. Young, 61 Hun, 626, ^ Bensieck i-. Cook, 110 Mo. 173, 19 S. 15 N. y. Supp. 919. And see O'Neill v. W. Rep. 642. Nolan, 21 N. Y. Siipp. 222, 66 Hun, 631 ; * Turner v. Rusk, 53 Md. 65. West V. Douglass, 145 111. 164, 34 N. E. 6 Gibson v. Soper, 6 Gray, 279, 66 Am. Hep- 1-*1. Dec. 414. 2 Laughlin r. Hibben, 129 Iml. 5, 27 N, 54 DEED OF INSANE GRANTOR. [§§ 58, 59. 58. There is a presumption of the continuance of insanity where this is apparently confirmed, and does nut result from a temporary or trausient cause ; and therefore, when such insanity is shown, it will be presumed to continue, unless subsequent sanity is shown. ^ But a return of sanity may be proved by evidence sufficient to overcome the presumption of continued insanity ; and, though the person may again become insane, his deed executed during the lucid interval is good.^ The burden of showing a lucid interval or a return of sanity is upon the purchaser, or party who claims the validity of the deed.^ IV. Confirmation mid Disaffirmance of Deed of Insane Grantor. 59. A confirmation by the grantor must be his intelligent act. Such act to be effectual must be done by the grantor after his restoration to sanity, with such knowledge of the fact as to make his acts binding. It has been asserted that the act of con- firmation must be done with a knowledge of the voidable char- acter of the deed and with the intention to confirm it.* But this is too rigid a rule. The law assumes that every sane man know- ing the facts is bound by his acts and contracts, and will not allow him to excuse himself from ordinary liability on the ground of his ignorance of the law. Therefore, if the grantor, being in his riglit mind, receives consideration for the conveyance, his inten- tion to ratify and confirm his deed may be inferred ; and it is immaterial that at the time of receiving such payment he did not actually know that he had the right to avoid the deed, and that 1 Physio-]Meclical College v. Wilkinson, title to the purchaser. New England L. 108 Ind. 314, 9 N. E. Kep. 167 ; Grouse v. & T. Co. v. Spitler (Kans.), 38 Pac. Rep. Holman, 19 Incl. 30; Wade v. State, 37 799. Ind. 180 ; Corbit v. Smith, 7 Iowa, 60, 2 Towart v. Sellers, 5 Dow, 231 ; Hall 71 Am. Dec. 431; Curtis v. Brownell, v. Warren, 9 Ves. 60.') ; Selby i;. Jackson, 42 Mich. 165, 3 N. W. Rep. 936; Ro- 6 Bcav. 192; Es.sex v. Daniell, L. R. 10 gcrs I'. Walker, 6 Pa. St. 371, 47 Am. C. P. .543 ; Cropp y. Cropp, 88 Va. 753, 14 Dec. 470; State v. Wilner, 40 Wis. 304; S. E. Rep. 529., Ricketts V. Joliiff, 02 Miss. 440; Clark » Titcomb v. Vantyle, 84 111. 371 ; Ro- I'. Kirk Patrick (N. J. E(^ ), 10 Atl. Kej). gers u. Walker, 6 Pa. St. 371, 47 Am. Dec. 309, 314. 470; Ricketts v. Joliiff, 62 Miss. 440; Cur- A deed made by an insane person and lis v. Brownell, 42 Mich. 165,3 N. W. his wife, after he has bicn tluly adjudged Rep. 936; Fishburne v. Furguson, 84 Va. insane and ])laced under guardianship, 87, 4 S. E. Rep. 575. while he is out on a temporary leave of * Tuckers. Moreland, 10 Pet. 58; Eaton absence, after having been confined in the v. Eaton, 37 N. J. L. 108, 18 Am. Rep. insane asylum, is void, and conveys no 716. 5 §§ 60-62.] DISABILITY OF INSANE PERSONS. he iHliiujuislied this right by receiving payment. This is an ig- norant'c of tlie law which he cannot set nj).^ 60. The deed may be confirmed by the grantor after his restoration to sanity in various ways. It may he by a ni'w deed, by contract, by his acts in relation to the conveyance, or by liis failure to act.^ Any distinct and decisive act of recoo-nition of the deed as valid is competent evidence of ratification. A new deed or a new delivery of the old deed is not reqnisite, as would be the case if that deed were void.^ A grantor may ratify his deed after liis restoration to sanity by receiving and accepting the consideration, or any part of it; as, for instance, by receiving support from the grantee. Of course such ratification must be the intelligent act of the grantor, know- ing that he was receiving such support under the provisions of the deed, and intending to avail himself of such provisions.* If the grantor has taken notes for the purchase-money, his intention to ratify the conveyance will be inferred from his receiving pay- ment of such notes, or any of them, after being restored to his right niind.^ 61. The deed of an insane man not under guardianship may be confirmed by him during a lucid interval, if he is then in condition to well understand the nature of the instrument and the transaction which led to its execution.^ The acts of con- firmation must show that the grantor intended to confirm the deed. 7 62. The guardian or committee of an insane person has no power, by his own affirmative acts or by his acts of omission, to ratify the deed of his ward. He cannot dispose of his ward's lands except by proceedings required by statute. The guardian cannot, without the direction of court, do that which his ward was powerless to do before coming of age, or before restoration to reason. The guardian cannot without express authority affirm 1 Arnold v. Kichmond Iron Works, < Bond r. Bond, 7 Allen, 1 . 1 Gray, 4.34 ; Jones v. Evans, 7 Dana, ^ Arnold v. Richmond Iron Works, 1 96. Grny, 4.34. - Arnold v. Richmond Iron Works, 1 ^ ^^n;,^ ^ Billings, 6 Met. 415, 39 Am. Gray. 434; Tucker v. Morchind, 10 Pet. Dee. 744; Blakeley v. Blakeley, 33 N. 58; Jones u. Evans, 7 Dana, 9B. J. Kq. 502; Eaton r. Eaton, 37 N. J. i^. 3 Howe V. Howe, 99 Mass. 88; Allis 108, 18 Am. Rep. 716. f. Billings, 6 Met. 415, 39 Am. Dec. 7 Eaton v. Eaton, 37 N. J. L. 108, 18 744. Am. Rep. 716. 56 DEED OF INSANE GRANTOR. [§§ 63, 64. the voidable conveyance of his ward so as to convert a voidable title into a valid and unimpeachable title. ^ 63. The heirs or devisees of a grantor under guardianship, who has died without being restored to sanity, may ratify his deed. If such deed is not ratified either by the grantor, his heirs or devisees, it is ineffectual to convey any title.^ Such deed may also be disaifirmed after the death of such grantor by his heirs or devisees,^ or by his executors or adminis- trators, if they require the real estate for the payment of debts. It also seems that the administrator of such grantor may avoid his deed without showing that there are creditors of his estate.* The heirs of the grantor may avoid his deed on the ground of insanity, either at law or in equit}^, without first showing that he or they have made an entry upon the land, or done any other act to avoid the deed.^ 64. The deed of an insane grantor will not be set aside at the instance of a stranger, such as a creditor, or other person not his privy in blood or his legal representative.^ Lord Coke says that neither one who is privy in estate nor one who is privy in tenure can set up the disability and take advantage of the 1 Funk V. Reotchler, 134 Ind. 68, 33 N. E. Rep. 364 ; New England L. & T. Co. D. Spitler (Kans), 38 Pac. Rep. 799. Even a guardian's contract to sell his ward's lands, without authority to make such sale, is void. "Worth v. Curtis, 1.5 Me. 228; Fitzhugh v. Wilcox, 12 Barb. 235. ^ Valpej i;. Rea, 130 Mass. 384; Brig- ham V. Fayerweatlier, 144 Mass. 48, 10 N. E. Rep. 735. 8 Brown f. Freed, 43 Ind. 253; Schuff v. Ransom, 79 Iiid. 458; Northwestern JIut. F. Ins. Co. V. Blankeiiship, 94 Ind. 53.5, 544, 48 Am. Rpp. 18.5, 189. Bicknell, C. C, said : " Wlicn a contract is made by an insane person who remains insane continu- ally thereafter until his death, and an ac- tion is then brought against his heirs to enforce it, they may by a jiroper pleading di.-affnm the contract; and that it is not a good reply to such a pleading that the party was ajip irently of sound mind ; uor that he had not been judicially declared insane; nor that the other party con- tracted in good faith, and without suspi- cion of insanity ; nor that no previous effort had been made to disafBrm the con- tract ; nor that the family of the insane person had permitted him to go unattended and transact ordinary business." * Judge of Probate v. Stone, 44 N. H. 593. 5 Valpey v. Rea, 130 Mass. 384. Contra, Schuff V. Ransom 79 Ind. 458. fi Breckcnridge v. Ormsby, 1 J. J. Marsh. 236, 248, 19 Am. Dec. 71 ; Hunt v. Weir, 4 Dana, 347; Kilbee v. Myrick, 12 Fla. 419; Ingraham u Baldwin, 9 N. Y. 45, 48 ; Hoyle v. Stowc, 2 Dev. & B. 320, 323. In Massachusetts a jud;;ment creditor of a devisee may recover land in possession of another to whom the testator, after making his will, conveyed the land while insane. This is by virtue of a statute which makes the devisee's right of entry subject to lie taken on execution, and under the levy the creditor acquires the right to recover tlie land and to avoid the deed. Valpey v. Rea, 130 Mass. 384. 67 §§ Go, iSij-l DISABILITY OK INSANE I'EKSONS. insanity of the grantor, and be puts this case by way of ilbistra- tiun : " If donee iu tail, being non compos mentis, makes a feoff- ment in fee and dies without issue, he in reversion or remainder shall not enter or take advantage of the insanity of the donee." ^ A wife cannot maintain a bill in equity to set aside a conveyance by her husband on the ground that he was insane and incapaci- tated to execute a conveyance.^ 65. The grantor himself may avoid his deed on account of his insanity at the time of its execution,^ though the old doctrine was that a man should not be heard to stultify himself by plead- ing his own insanity.'* But if the grantor has no mind he cannot agree in mind with another in making a conveyance or other con- tract.^ The capacity to so agree is the essence of a contract, and without it there is no contract. If one has made a conveyance without a consenting mind, so that in effect it is not his convey- ance, he does not stultify himself in saying that it is not his deed. There is no good reason why he should not in law set up his incapacity in defence where such a deed is sought to be enforced, or why he should not set it up as ground for affirmative relief in equity. A committee cannot be appointed for a sane man because he was at one time insane. He must bring suit himself to recover his rights, and may prove insanity to avoid a deed set up against him, on the same terms as if he were defendant in the action, and the plaintiff were supporting his case with the same deed.^ If he continues a lunatic, he may not apjsear and plead by attorney ; and if it so appears on examination, the plea by attorney may, before judgment, be treated as a nullity, and a guardian be appointed, who will be entitled to plead de novo.'^ 66. A deed will not be set aside, on the ground of the incompetency of the grantor, after a long acquiescence of the parties in interest. It was so held where the deed \vas by a 1 Beverley's Case,4 Coke, 124 a. This v. Rusk, 53 Md. 65; Musselman v. Cra- doctrine is iidopted iu Maryland. K(.y v. vcns, 47 Ind. 1. Davis, 1 Md.32. * Beverley's Case, 4 Coke, 123 i ; Mur- 2 Kilbec V. Myrick, 12 Fla. 419. ley v. Sherrcn, 8 Ad. & El. 754. 2 Moltou V. Camroux, 2 Exch. 487; -^ 1 Parsons Cont. 383; Crawford v. Bensell v. Chancellor, 5 Wliart. 371, 34 Hcovell, 94 Pa. St. 48, 39 Am. Rep. 766. Am. Dec. 561 ; Rogers v. Walker, 6 Pa. « Crawford v. Scovell, 94 Pa. St. 48, 52, St.371,47 Am. Dec. 470; Grant r. Thomp- 39 Am. Rep. 766, per Tninkey, J. Bon, 4 Conn. 203, 10 Am. Dec. 119; " Mitchell r. Kingman, 5 Pick. 431. Mitchell f. Kingman, 5 Pick. 431 ; Turner 58 RESTORING CONSIDERATION ON DISAFFIRMANCE. [§ 67. father to one of his suns in considerution of support, and the grantee faithfully furnished such support for muny yeiir.s during the father's lifetime.^ But a delay of three years by an heir or devisee of a grantor alleged to be mentally incompetent to make a deed is not fatal to the action, though the land has in the mean time been transferred to an innocent purchaser.^ V. Restoring Consideration on Disaffirmance. 67. Whether a grantor or his heirs may disaflSrm his deed made "while the grantor was insane, without restoring the consideration to the grantee, is a question upon which the deci- sions are not in harmony. On the one hand, it is held that the consideration need not be restored.^ " To say that an insane man, before he can avoid a voidable deed, must put the grantee in statu quo, would be to say in effect that, in a large majority of cases, Ijis deed shall not be avoided at all. The more insane the grantor was when the deed was made, the less likely will he be to retain the fruits of his bargain, so as to be able to make restitu- tion. If he was so far demented as not to know or recollect what the bargain was, the difficulty will be still greater. One of the obvious grounds on which tiie deed of an insane man or an infant is held voidable is not merely the incapacity to make a valid sale, but the incapacity prudently to manage and dispose of the pro- ceeds of the sale. And the same incapacity which made the deed void may have wasted the price, and rendered the restoration of the consideration impossible." ^ This rule applies even after the grantor has been restored to 1 Adair i-. Cook (Ky.), 5 S. W. Rep. 48, 10 N. E. Rep. 735. Mississippi: Rick 412. etts V. Joliff, 02 Miss. 440. See Fiizger 2 Paine v. Aldrich, 133 N. Y. 544, 30 aid v. Rued, 9 Sm. & M. 94. Nebraska N. E. Rep. 725. Dewey v. Allgire, 37 Neb. 6, 55 N. W » Indiana: Nichol u. Thomas, 53 Ind. Rep.27G; Rca t\ Bishop (Neb.), 59 N. W 42; Soniers v. Pumi)hrey, 24 lud. 231; Rep. 555. New Hampshire: Flauders i; riiysio-Medical College v. Wilkinson, 108 Davis, 19 N. H. 139. Pennsylvania: Craw Ind. 314 ; Northwestern JMut. F. Ins. Co. ford v. Scovell, 94 Pa. St. 48, 39 Am. Rep I'. BLinkenship, 94 Ind. 185, 48 Am, Rep. 7G6 ; Rogers v. Walker, 6 Pa. St. 371, 47 185. Maine: Ilovey v. Ilobsou, 53 Me. Am. Dec. 470; Tn re Desilver, 5 Rawle, 451, 89 Am. Dec. 705. Maryland : Chew v. 111. Bank, 14 Md. 299. Massachusetts: Gib- < Gibson v. Sopcr, 6 Gray, 279, 66 Am. son i;. Sopcr, 6Gray, 279, 66 Am.Dec. 414; Dec. 414, per Thomas, J., followed in Fos.sy. Ilildicth, 10 Allen, "/fi ; Chandler ii. Crawford v. Scovell, 94 Pa. St. 48, 39 Am. Simmons, 97 Mass. 508, 514, 93 Am. Dec. Dec. 766. 117; Brigliam v. Fayerweather, 144 Mass. 69 § ^■•^^•J DISAIULIIY OF INSANE PEKSONS. siiiiitv, if lie lias done no act to ;illirin tlie det'tl prior to his pro- ceedings to avoid it and to recover the property. If, however, being restored to the full possession of his mind, he retains notes, contraets, or specific property given by the grantee for the con- veyance, such retention is evidence of a ratification. ^ It is also heki in some cases, particuhirly in thuse derided in Indiana, that where the consideration was necessary or benelicial to tlie grantor it should be restored upon a disaffirmance of the conveyance. Where a mortgage was given to secure the re])ayn)ent of money obtained for the use and benefit of the mortgagor, in that it was applied in payment of a bona fide debt of the insane mort- gagor, it was held that the consideration must be restored upon disaffirmance.^ 68. On the other hand, the English rule, followed also in some American States, is that a deed made in good faith for a full consideration, the grantor apparently being of sound mind,. and the grantee not knowing or suspecting the contrary, cannot be avoided on the ground of insanity without making restoration of the consideration paid for the conveyance.^ This rule, first applied where the consideration was necessaries 1 Gibsou V. Soper, 6 Gray, 279, 66 Am. Dec. 414, in which the case of Arnold v. Richmond Iron Works, 1 Gray, 434, is examined, and shown to be in nccord when limited to the actual case decided. 2 Copenrath i;. Kienhy, 83 Ind. 18. 3 Story's Eq. .Jur. § 228 ; Biiswell on Insanity. § 413 ; Bagster v. Earl of Ports- mouth, 7 Dow. & Ry. 614; Addison v. Dawjion, 2 Vern. 678; Selby v. Jackson, 6 Beav. 192 ; Molton v. Camroux,2 Exch. 487,4 Exch. 17; Elliot v. Ince, 7 De G., M. & G. 475 ; Price v. Berrington, 3 Macn. & G. 486 ; Campbell v. Hill. 23 U. C. C. P. 47.3, affirming 22 U. C. C. P. 526. Colorado: Elder v. Schumacher, 18 Colo. 433, 33 Pac. Rep. 175. Illinois : Scanlan V. Cobb, 85 111. 296; Meukins i-. Light- ner, 18 111. 282; Burnham v. Kidwell, 113 111. 425. Indiana : Freed v. Brown, fjS Ind. 310; Fay v. Burditt, 81 Ind. 433, 42 Am. Hep. 142; Boyer i-. Beiryman, 123 Ind. 451, 24 N. E. Rep. 249; Copcnnith V. Kienby, 83 Ind. 18. Iowa: Alexander r. Haskins, 68 Iowa, 73, 25 N. W. Rep. 60 935 ; Abbott v. Crcal, 56 Iowa, 175, 9 N. W. Rep. 115; Behrens v. McKcnzie, 23 Iowa, 333, 92 Am. Dec. 428; Corbit v. Smith, 7 Iowa, 60, 71 Am. Dec. 431 ; Allen V. Berryhill, 27 Iowa, .534, 1 Am. Rep. 309. Kansas: Gribben y. Maxwell, 34 Kans. 8, 7 Pac. Rep. 584; Myers v. Knabe, 51 Kans. 720, 33 Pac. Rep. 602; Leavitt v Files, 38 Kans. 26, 15 Pac. Rep. 89 1 . Kentucky : Rusk c. Fenton, 1 4 Bush, 490, 29 Am. Rep. 413. Michigan : Davis Sewing-Machine Co. v. Barnard, 43 Mich. 379. Nev/ Hampshire : Young v. Steven.s, 48 N. H. 133, 2 Am. Rep. 202, 97 Am. Dec. 592. New Jersey : Eaton v. Eaton, 37 N. J. L. 108, 18 Am. Rep. 716 ; Yiiuger V. Skinner, 14 N. J. Eq. 389. New York : Loomis V. Spencer, 2 Paige, 153. North Carolina: Odom v. Riddick, 104 N. C. 515, 10 S. E. Rep. 609; Riggan v. Green, 80 N. C 236, 30 Am. Rep. 77 ; Carr v. Ilollidny, 1 D.] PlSARILll'Y FKOM DUUNKENXKSS. i:;ianli>r into ilriiik, :aul took tulvuiiUigc, of his intoxication to get liini to oxocute the deocl.^ 75. The fact to be proved is the condition of the grantor at the time the deed was executed. From the nature of the disqualifying cause, the proof is much more closely limited to the time of the transaction of the business than the proof is in case of insanity. 2 Intoxication is a temporary disability ; insanity is permanent, or, usually at least, long continued. But evidence of the condition of the grantor, several hours after the transaction, may be received as tending to throw light on his condition when the deed was executed.^ Wlien incapacity by reason of drunkenness is set up as a ground for annulling a deed, the vital inquiry is as to his ca- pacity when the deed was executed, not as to his capacity when drunk. If the evidence shows that, on the occasion when the deed was executed, the grantor was perfectly sober, and possessed sufficient capacity to dispose of his property with an intelligent understanding of what he was doing, it does not matter that it appears that he was often intoxicated, and that when in that condition he was incapacitated to transact business ; nor does it matter that it also appears that the grantor, from habitual dissipation, was in such an enfeebled condition of mind or body, immediately before or immediately after the execution of the deed, as to render him incompetent to transact business. Such evidence throws the burden of proof as to his capacity at the date of the execution of the deed upon the grantee who claims title under it. This burden is met by evidence of undoubted capacity at that particular time.* 76. Ordinarily the grantee would know of the grantor's intoxication, when this had gone to the extent of rendering him incapable of transacting business intelligently ; and on this ground his dealing with a person excessively intoxicated may be ' Mansfield v. Watson, 2 Iowa, 111 ; - Peck v. Gary, 27 N. Y. 9, 17, 84 Am. Birdsonfj v. Birdsonp;, 2 Head, 289. Dec. 220 ; Andress v. Weller, 3 N. J. Eq. A case in equity to set aside a deed on 604. account of the grantor's intoxication at ^ phelan v. Gardner, 43 Cal. 306. the time, amounting to incapacity on his * Ralston v. Tnrpin, 129 U. S. 663, 671, part, must be decided on its own merits, 9 Sup. Ct. Rep. 420, per Harlan, J. And without regard to previous deci.sions in see Conley r. Nailor, 118 U. S. 127,131, cases differing in the facts. Conley v. 6 Sup. Ct. Rep. 1001. Nailor, 11 8 U.S. 127,6 Sup. Ct. Rep. 1001. 66 DISABILITY FROM DRUNKENNESS. [§ 77. regarded as prima facie fraudulent. When such knowledge is shown, or when it is shown that the grantor's intoxication was produced by the art or connivance of the grantee, or that the latter took undue advantage of the grantor's situation, equity will, in behalf of the grantor, relieve against the conveyance.^ But equity will not ordinarily assist the grantee, who has obtained a deed from the grantor while intoxicated, in avoiding the deed.^ In some cases it is said that equity will not relieve the grantor from his conveyance made while intoxicated, unless it be shown that the grantee connived at the intoxication, or took undue ad- vantage of the grantor in consequence of his condition."^ But the better rule is, that the grantor may avoid his deed in such case although the intoxication was voluntary, and not in any way })rocuied by the connivance of the other party .^ If it is shown that the grantor was intoxicated at the time of executing a deed, inadequacy of price is direct evidence of fraud.^ But if a person, while intoxicated, voluntarily executes a deed of trust for the benefit of his wife and children, the state of intoxication not being induced by them or on their behalf, equity will not set it aside.*^ Where one purchased land and took a conveyance with full knowledge that proceedings had been instituted in the court of chancery against the grantor as an habitual drunkard ; that a commission had been issued to inquire as to his incapacity to man- age his affairs ; and that the sheriff was then summoning a jury to try such inquisition, — the conveyance was set aside, with costs, on a bill filed by the committee of the person and estate of the habitual drunkard.'^ 77. The burden of proving intoxication is upon the party 1 Burroughs v. Richman, 13 N. J. L. * Pitt v. Smith, 3 Camp. 33 ; Barrett 233, 23 Am. Dec. 717; Warnock u. Camp- v. Buxton, 2 Aik. 167, 16 Am. Dec. bell, 2.5 N. J. Eq. 485 ; Jolinson v. Phifer, 691 ; Mansfield v. Watson, 2 Iowa, 111 ; 6 Xeb. 401 ; State Bauk v. McCoy, 69 Pa. French v. French, 8 Ohio, 214, 31 Am. St. 204, 8 Am. Rep. 246. Dec. 441. 2 Cooke i;. Clay worth, 18 Ves. Jr. 12. & Crane v. Coriklin, 1 N. J. Eq. 346, 22 'Johnson v. Medlicott, cited in 3 P. Am. Dec. 519 ; Mead f. Coombs, 2 N.J. Eq. Wms. 130; Cory v. Cory, 1 Ves. 19; 173; Reynolds v. Waller, 1 Wash. (Va.) Dunnage v. White, 1 Swanst. 137; Pitten- 164; Hutchinson v. Tindall, 3 N. J. Eq. ger V. Pittengtr, 3 N. J. Eq. 156 ; Hutch- 357. in.son v. Tindall, 3 N. J. Eq. 357 ; Rod- « Hutchinson v. Tindall, 3 N. J. Eq. man v. Zilley, 1 N. J. Eq. 320; Crane 357. V. Conklin, 1 N. J. Eq. 346, 22 Am. Dec. "i Griswold v. Miller, 15 Barb. 520. And 519 Campbell v. Ketcham, 1 Bibb, 406 see Frost !\ Beavan, 17 Jur. 369. 67 § 78.] DISABILITY FROM DRUNKENNESS. who sets up this fact in defence.^ Bat uiuKt a statute whereby a person is adjiulu'iiti'd an habitual drunkard from a time prior to the incjut'st, the burden of proof is shifted, as to contracts made within the period covered by the finding, to tlie other party, and the drunkard is prima facie incompetent to contract; and, as to contracts made after sucli finding, the adjudication is conclusive evidenci' of his incapacity.^ 78. The deed of a person rendered incompetent by intoxi- cation is voidable only, and not void. He may ratify or disaf- firm the deed on becoming sober.^ Any unreasonable delay in avoidinsf the deed will be taken as a confirmation of it.'* The defence of drunkenness, moreover, like that of duress, infancy, or insanity, is a personal one ; and if the grantor, who has made a deed while drunk, chooses to abide by it when sober, no third person can interpose the defence.^ A deed may be avoided at law on the ground of the grantor's incompetency ; but when it is sought to avoid it on the ground of the fraud of the grantee in connection with the grantor's drunk- enness, the remedy is in equity.^ 1 Black V. Ellis, 3 Hill (S. C), 68. 2 Klohs V. Klohs, 61 Pa. St. 245 ; Lcckey V. Cunningham, 56 Pa. St. 370; Imhoify. Witmer, 31 Pa. St. 243 ; Clark v. Caldwell, 6 Watts, 139. 8 Matthews v. Baxter, L. R. 8 Exch. 132; Joest r. Williams, 42 lud. 565, 13 Am. Rep. 377; McGuire i'. Callahan, 19 Ind. 128; Jenners v. Howard, 6 Blackf. 240 ; Eaton v. Perry, 29 Mo. 96 ; Broad- 68 water v. Dame, 10 Mo. 277 ; Arnold v. Hickman, 6 Munf. 15; Williams r. Inab- net, 1 Bailey (S. C), 343. 4 Williams V. luabnet, 1 Bailey (S. C), 343 ; Cummings r. Henry, 10 Ind. 109. 5 Cole V. Gibbons, 3 P. Wms. 290; Eaton u. Perry, 29 Mo. 96. <' Mansfield v. Watson, 2 Iowa, 111; Birdsong v. Birdsong, 2 Head, 289. CHAPTER V. DISABILITY FROM DURESS. IV. Defence and proof of duress, 90-92. V. Duress renders deed voidable only, 93-96. I. Duress by imprisonment, 79. 80. II. Duress by threats, 81-88. III. Duress of property, 89. I. Duress hy Imprisonment. 79. Duress by imprisonment occurs where there is detention of the person without warrant of law; where there has been an abuse of legal process by arrest upon a false charge, or without probable cause ; where there has been a lawful arrest, but for an unlawful purpose ; or where there has been an arrest legal in its inception, but followed by maltreatment of the prisoner. An arrest for an improper purpose without a just cause, or an arrest for a just cause without lawful authority, or an arrest for a just cause and under lawful authority for unlawful purposes, may be construed a duress.^ 1 Stepney v. Lloyd, 2 Cro. Ellz. 647; Brown v. Fierce, 7 Wall. 205, 215. Ala- bama: Hatter v. Greenlee, 1 J'ort. 222, 26 Am.« Dec. 370. Colorado : Lighthall v. Moore, 2 Colo. App. 554, 31 Fac. Rep. 511. Illinois: Taylor v. Marcum, 16 111. 93 ; Shenk v. Fhelps, 6 111. App. 612. In- diana: Brooks V. Berryliill, 20 Ind. 97. Kansas : Winfield Nat. Bank v. Croco, 46 Kans. 620, 26 Fac. Kep. 939. Maine Crowell V. Gleason, 10 Me. 325, 3.33 Whitefield v. Longfellow, 13 Me. 140 Soule V. Bonney, 37 Me. 128. Massachu- setts : Watkins v. Baird, 6 Ma.ss. 506, 4 Am. Dec. 170; Morse v. Woodworth, 155 Mass. 233, 251, 27 N. E. llcp. 1010, 29 N. E. Rep. 525. Michigan: Seibev r. Price, 26 Mich. 518. New Hampshire: Richard.son r. Duncan, 3 N. II. 508 ; Brcck i;. Blaiichard, 22 N. II..^03, 51 Am. Dec. 222 ; Severance v. Kimball, 8 N. II. 386. New York : Osborn v. Robbins, 36 N. Y. 305; Strong i;. Grannis, 26 Barb. 122; Richards v. Vanderpoel, 1 Daly, 71 ; Thompson v. Lock wood, 15 Johns. 256; Foshay v. Ferguson, 5 Hill, 154, 158, per Bronson, J. : " If a deed might be avoided nearly three centuries ago on the ground that it was procured by threats and the fear of illegal imprisonment, there can be no room for doubt upon the question at the present dav. As civilization has advanced, the law has tended much move strongly than it formerly did to overthrow every- thing which is built upon violence or fraud." North Carolina : Ware v. Nesbit, 94 N. C. 004, 6G8. Pennsylvania: Stouffer r. Latshaw, 2 Watts, 105, 27 Am. Dec. 297. Tezas: yi>aulding v. Crawford, 27 Tex. 155; Fhelps f. Zuschlag, 34 Tex. 371. Wisconsin : Biown v. Feck, 2 Wis. 261 ; Fav f. Oatlev.O Wis. 42,45. 69 §§ 80, 81.] DISABILITY FROM DURESS. Though an arrest is made under a legal warrant, if one of the objects of the arrest was to extort money, or enforce the settle- ment of a civil claim, such arrest is a false imprisonment, and a release or conveyance of property obtained thereby is void. The discharge of the person arrested without examination before a m.igistrate, and without a return of the warrant, is a circum- stance to be considered by the jury as bearing upon the question of duiess.^ Security obtained in this manner may be avoided, although the chiim secured was just in itself.^ 80. There is no duress where the imprisonment is under legal process properly obtained for a probable cause, with no ulterior purpose, and a deed voluntarily executed by the pi-isoner to obtain his deliverance cannot be avoided on the ground of duress.^ A deed executed in accordance with a decree of court cannot be said to be executed under duress.* A gold-refiner, who had confessed that he had taken gold in- trusted to him by his employers, while under arrest at the police station executed a mortgage of his lands to secure repayment of the value of the gold so taken. He was afterwards indicted for the offence, pleaded guilty, and was sentenced. In an action to foreclose the mortgage, it was held that it was not void on the ground of duress.^ II. Duress hy Threats. 81. Threats m.ay constitute duress, and invalidate a deed procured by that means. Actual violence or imprisonment is not necessary to constitute duress. Consent is of the essence of a valid contract, and there is no consent when a party acts by com- 1 Hackett y. Kinp, 8 Allen, 144, 85Am. Massachusetts : Felton v. Gregory, 130 Dec. 695; Morse i\ Woodwonh, 155 Mass. Mu-s. 17G. Michigan: Kood v. Winslow, 233, 29 N. E. Rep. 525; Williams v. 2 l)uu<;l. 68; Prichard r. Sharp, 51 Mich. Walker, 18 S. C. 577 ; Seiher v. Price, 26 432, 16 N. W. Hep. 798; State Buuk v. Mich. 518; Phelps y. Zuschlag, 34 Tex. CliappelIe,40Mich.447. Missouri: Holmes 371. I'. Hill, 19 Mo. 159. New Hampshire : 2 Osborn i;. Robbins, 36 N. Y. 365. Nealley v. Greenough, 25 N. H. 325 ; Al- See, however, Diller v. Johnson, 37 Tex. exander v. Pierce, 10 N. H. 494. New 47. Jersey: Smillie v. Smith, 32 N. J. Eq. 3 Plant V. Gunn, 2 Woods, 372. Ala- 51 ; Clark v. Turnbull, 47 N. J. L. 26.5. bama : Hatter v. Greenlee, 1 Port. 222, Pennsylvania: Stouffer v. Latshair, 2 26 Am. Dec. 370. Georgia: Smith v. Watts, 167, 27 Am. Dec. 297. Wisconsin: Atwood, 14 Ga. 402. Illinois: Heaps Oconto Co. r. Hall, 42 Wis. 59. V. Dunham, 95 111. 583. Maine : Eddy v. * Eld ridge v. Trustees, 111 111. 576. Herrin, 17 Me. 338, 35 Am. Dec. 261. ' Smillie v. Smith, 32 N. J. Eq. 51. 70 DURESS BY THREATS. [§ 81. pulsion. Moral compulsion, produced by threats of great bodily harm or of arrest, is sufficient to destroy a party's free agency, without which he can give no consent and make no valid contract. To constitute duress, the threats must be such as to strike the threatened pei'son with such fear as to take away his free agency. They must afford a reasonable ground of fear of bodily injury or of restraint of liberty. ^ Duress by mere advice, direction, influ- ence, and persuasion, or pressure of public opinion, is unknown to the law.2 In a case before the Supreme Court of the United States, Mr. Justice Clifford said:" ''Decided cases may be found which deny that contracts procured by menace of a mere battery to the per- son, or of trespass to lands, or loss of goods, can be avoided on that account, as such threats, it is said, are not of a nature to overcome the will of a firm and prudent man ; but many other decisions of high authority adopt a more liberal rule, and hold that contracts procured by threats of battery to the person, or of destruction of property, may be avoided by proof of such facts, because, in such a case, there is nothing but the form of a contract without the substance. Positive menace of battery to the person, or of trespass to lands, or of destruction of goods, may undoubt- 1 Bakery. Mortou, 12 Wall. 150; United Bell (Ky.), 2 S. W. Rep. 675; Gabbey v. States V. Huckabee, 16 "Wall. 414, 431, Forgeus, 38 Kans. 62, 15 Pac. Rep. 866 ; per Clifford, J. ; Brown v. Pierce, 7 Wall. Dolman v. Cook, 14 N. J. Eq. 56. 205, 215; Radich v. Ilutchins, 95 U.S. In Harshaw ?;. Dobson, 64 N. C. 384, 210 ; McClair v. Wilson (Colo.), 31 Pac. where the owners of land had given a Rep. 502; Barrett v. French, 1 Conn, bond to convey upon the payment of a 354, 6 Am. Dec. 241 ; Love v. State, 78 certain sum of money in coin, the debtor, Ga. 66, 3 S. E. Rep. 893 ; Hamilton v. during the war of the Rebellion, asked Smith, 57 Iowa, 15, 10 N. W. Rep. 276 ; the court to be allowed to pay the debt in Harmon v. Harmon, 61 jMe. 227, 14 Arn. Confederate money, and the judge sent Rep. 556; Taylor i-. Jaques, 106 Mass. word to the creditor that, if he did not re- 291 ; Goodrich v. Shaw, 72 Mich. 109,40 ceive this money and execute a deed, he N. W. Rep. 187; Goodrich v. Cushman, would have him sent to Richmond, where- 34 Xeb. 460, 51 N. W. Rep. 1041 ; Barrett upon the creditor, being under fear and V. Weber, 125 N. Y. 18, 25 N. E. Rep. infirm, received the money and executed 1068 ; Richards v. Vanderpoel, 1 Daly, a deed. It was held that the deed was in- 71 ; Doolittie v. McCnllough, 7 Ohio St. valid. So where a deed was executed 299; Bueter v. Buetcr, 1 S. D. 94, 45 N. under a threat of death unless the owner W. Rep. 208. accepted Confederate money in payment. ^ Barrett v. French, 1 Conn. 354, 6 Am. Bogle v. Hammons, 2 Ileisk. 136. Dec. 241 ; State v. Sluder, 70 N. C. 55 ; * United States v. Huckabee, 16 Wall. Wallach v. lioexter, 17 Abb. N. C. 267 ; 414, 432. Jonea v. Rogers, 36 Ga. 157; Rittcr v. 71 ^ SJ.l DISAl'.llJl Y IKOM Dl'KESS. odlv hi\ in many cases, siillicient to overcoiiio tlie miiiil aiul will of a poison entirely competent in all other respects to contract ; iinil it is clear that a contract made under such circumstances is as utterly without the voluntary consent of the party menaced as if he were induced to sign it by actual violence." 82. Threats constitute duress when they are such as to overcome the free agency of the person threatened. It has sometimes heen said that the fear which will invalidate a contract executed under its influence must be such as would inllnenee a mind of the greatest constancy, or at an}' rate a mind of ordinary firmness and force.^ But the doctrine now generally approved is, that, while the fear must be such as to destroy the free agency of the person threatened, yet the threats that would be sufhcient to overcome the free agency of one person might have little or no influence upon another. Therefore, whether the threats used in any particular case constitute duress, and are a defence to an in- strument executed at the time, must depend very much upon the circumstances of the case and the physical and mental condition of the person threatened.^ The age, temperament, health, expe- rience, and sex of the person to whom the threats are directed may properly be considered. This was the decision in a Pennsyl- vania ease, where it was held that, if the threats employed were such as were calculated to deprive the person threatened of his freedom of will, he will be relieved from the obligation of a con- tract executed under their influence, although the threats were 1 Barrett v. French, 1 Conn. 354, 6 sufficient to release Mrs. Elliott from her Am. Dec. 241 ; "Walbridge v. Arnold, 21 contract. For, according to Blackstone, Conn. 424 ; Bosley v. Shanner, 26 Ark. the threats to produce such an effect must 280. be of such a character as to induce a well- 2 Morse v. Woodworth, 155 Mass. 233, grounded fear in the mind of a firm and 29 N. E. Rep. 525 ; Parmenter v. Pater, courageous man of the loss of life or 13 Oreg. 121 ; Blair v. Coffman, 2 Overt, limb ; and the rule of the civil law was of 176, 5 Am. Dec. 659 ; Cribbs v. Sowle, 87 like import : the fear must be of that kind Mich. 340, 49 N. W. Rep. 587, 24 Am. St. which would influence a man of the great- Rep. 172; Miller w. Miller, 68 Pa. St. 486, est constancy. . . . Pothier regards this per Agnew, J. ; Motz v. Mitchell, 91 Pa. rule as too rigid, and ajiproves the better St. 114. See article by W. TI. riiillips, doctrine, that regard must be had to the 14 Am. L. Reg. N. S. 201 ; Jordan r. Elli- age, sex, and condition of the parties; ott, 12 W. N. C. 56, 59, 15 Cent. L.J. since that fear, which would be insuffi- 232. And see 15 Cent. L. J. 262. The cientto influence a man in the prime of court said : "We are aware that neither life and of military character, might be under the rule of the civil nor common law, deemed sufficient to avoid the contract of as formerly expressed, would there be a woman or man in the decline of life." 72 DURESS BY THREATS. [§ 83. not of such a character as would produce a like effect upon a firm and courageous man. Whether a deed has been obtained by duress, ^j»er minas, is usually a question of fact for the jury, and not one of law to be determined by the court. It is not sufiicient in such a case to sat- isfy the trial court that threats were uttered, but it must also be shown that they constrained the will of the promisor and induced the promise.^ 83. There need be no direct threats of prosecution to ren- der invalid a deed or mortgage given to prevent a prosecu- tion. Thus, where a son forged his father's name upon notes, and the bankers who held them insisted that the father should make a settlement, saying to him that they did not wish to exer- cise pressure if the matter could be satisfactorily arranged ; that it was " a serious matter ; " that, if the notes are the father's, " we are all right ; if they are not, we have one course to pursue ; we cannot be parties to compounding a felony ; " and the father there- upon took up the notes, giving an agreement which was in effect an equitable mortgage, — it was held that the agreement was invalid.^ Lord Westbury said : " The question, therefore, my lords, is, whether a father appealed to under such circumstances to take upon himself an amount of civil liability, with the know- ledge that, unless he does so, his son will be exposed to a crimi- nal prosecution with the certainty of conviction, can be regarded as a free and voluntary agent. I have no hesitation in saying that no man is safe, or ought to be safe, who takes a security for the debt of a felon from the father of tlie felon, under such cir- cumstances. A contract to give security for the debt of another, which is a contract without consideration, is, above all things, a contract that should be based upon the free and voluntary agency of the individual who enters into it. But it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is altogether taken away fioni a father when brought into the situation of refusing, or leaving his son 1 Dunham v. Griswold, 100 N. Y. 224, 717, explained in McClatchie v. Haslam, 226, 227, 3 N. E. Rep. 76, ])Ct Earl, J.; 65 L. T. Kcp. N. S. 691, 17 Cox Ciim. Gates u. Dundon, 18 N. Y. Supp. 149; Cas. 402, 63 L. T. Hep. N. S. 376; Foley Ingersoll r. Roe, 65 Barb. rufi. v. Greene, 14 R. I. 618, 51 Am. Rej). 2 Williams v. Baylcy, L. R. 1 H. L. 419. 200, 218, 14 L. T. Rep. S02, 35 L. J. Cli. 73 §§ 84, 85.] DISAIUMTY FROM DURESS. in that perilous condition, or of taking on himself the anjount of that civil obligation." 84. Relief may sometimes be had in equity against threats which do not amount to legal duress. Such relief may be granted when a deed has been fraudulently procured through the fears, alToctions, or sensibilities of the grantor excited by threats; as, for instance, where the grantor has made a conveyance in consequence of threats of a criminal prusecution of his brother.^ Equity will grant relief in such cases, though there would be no remedy at law. Cases of this kind, however, more properly come under the description of cases of undue influence,^ from which cases of duress are sometimes hardly to be distinguished.^ When the coercion is only a social or domestic force, and not a menace to life or limb or of imprisonment, it more properly comes under the designation of undue influence.* The threat of a husband to abandon his wife, unless she exe- cutes a mortgage of her separate property to secure his debt, is an improper pressure, and the mortgage may be avoided by her on the ground of duress, if the threat induced the execution of the mortgage, and was made with the knowledge and consent of the mortgagee, or lie knew at the time of taking the mortgage that it was executed by reason of such threat.^ But the threat of a hus- band against his own life made to induce his wife to execute a contract does not amount to duress, and is no defence to an action acrainst the wife on her contract.^ 85. A threat of an unlawful arrest is duress which will avoid a deed or mortgage procured thereby.'^ A threat of an 1 Meech v. Lee, 82 Mich. 274, 46 N. 32 Am. Rep. 180, 18 Am. L. Reg. (N. S.) W. Rep. 383 ; Davis v. Luster, 64 Mo. 743 ; Remington v. Wright, 43 N. J. L. 43; Sdiultz V. Catiin, 78 Wis. 611, 47 451; Lefebvre r. Dutruit, 51 Wis. 326, 8 N. W. Rep. 946. N. W. Rep. 149,37 Am. Rep. 833 ; Metro- 2 Pomeroy's Eq. Jur. §§ 950, 951. politan L. Ins. Co. v. Meelier, 85 N. Y. 3 Lighthall v. Moore, 2 Colo. App. 554. 614. * Ilartnetti;. Hartnett (Neb.), 60 N. W. '' Foss v. Hiklreth, 10 Allen, 76 ; Foshay Rep. 362; Edwards ;;. Bowden, 107 N. C. i;. Ferguson, 5 Hill, 154; Knapp v. Hyde, 58, 12 S. E. Rep. 58. 60 Barb. 80; Richards v. Vanderpoel, I 5 Line ;;. Blizzard, 70 Ind. 23, Kocou- Daly, 71 ; Bush v. Brown, 49 lud. 573, 19 rek I). Marak, 54 Tex. 201, 33 Am. Rep. Am. Rep. 695; Bane v. Detrick, 52 111. 623; Tapley v. Tapley 10 Minn. 448, 88 19 ; Thurman v. Burt, 53 111. 129; Helm Am. Dec. 76. See, however, Kdwards v. r. Helm, 11 Kans. 19; Winfield Nat. Bowden, 107 N. C. 58, 12 S. E. Rep. 58 ; Bank v. Croco, 46 Kans. 620, 26 Pac. Wallach v. Hoexter, 17 Abb. N. C. 267. Rep. 939; Hullborst v. Scharner, 15 Ntb. 6 Wright V. Remington, 41 N. .T. L. 48, 57, i7 N. W. Rep. 259 ; Churchill v. Scott, 74 DURESS BY THREATS. [§ 86. arrest on a criminal charge may amount to such duress as will avoid a conveyance, if it is made with knowledge that no offence has been committed, and for the wrongful purpose of exciting the fears and overcoming the free will of him to whom the threat is addressed. 1 The threat of a criminal prosecution used to compel the giving of a deed or contract may constitute duress, although no threats were made at the time, if they were made a few days before and had not been retracted ; provided they induced a reasonable and well-grounded belief that the person threatened would be arrested and prosecuted on a criminal charge if he did not execute such deed or contract.^ In some cases it has been held that threats of criminal prosecu- tion do not constitute duress unless accompanied by threats of im- mediate imprisonment, or thi'eats which induce a reasonable fear of immediate imprisonment.'^ The distinction is, that a threat of prosecution merely, before the commencement of any proceedings, does not necessarily include imprisonment. The threat must imply imprisonment, and an imprisonment which is illegal. 86. A threat of arrest or imprisonment which is lawful or justifiable is not duress which will invalidate a deed executed in order to avoid it. A threat to cause the arrest and imprisonment of a person on a criminal charge does hot amount to such menace as will serve to invalidate a deed made by him to prevent such arrest, although it is executed under the pressure of such threat, 65 Mich. 479, 32 N. W. Rep. 6.53 ; Hoyt be actual imprisonment, and not threats V. Dewey, .50 Vt. 463 ; James v. Roberts, merely. 18 Ohio, 548; Meadows y. Smith, 7 Ired. ^ Jaylor v. Jaques, 106 Mnss. 291; Eq. 7 ; Williams v. Walker, 18 S. C. 577 ; Yoimgs v. Simra, 41 111. App. 28 ; Wells Landa v. Obert, 78 Tex. 33, 14 S. W. Rep. v. Sluder, 70 N. C. 55. 29" • 3 Plant?;. Gann,2 Woods, 372; Harmon i Baker v. Morton, 12 Wall. 150; Brown v. Harmon, 61 Me. 227, 14 Am. Rep. 556 ; r. rieree, 7 Wall. 205 ; Eadie v. Slimmon, Higgins v. Brown, 78 Me. 473, 5 Atl. Rep. 26 N. y. 9, 82 Am. Dec.395; Alexander 269; Seymour v. Prescott, 69 Me. 376; V. Pierce, 10 N. H. 494,498; Compton v. Hilboru v. Bucknam, 78 Me. 482, 7 Atl. Buuker Hill Bank, 96 Til. 301, 36 Am. Rep. 272; Moore v Adams, 8 Oiiio, 372, Rej). 147; Bane v. Detrick, 52 III. 19; 32 Am. Dec. 723 ; Landa y. Obert, 45 Tex. Sanford v. Sornborger, 26 Neb. 295, 41 N. 539; Catlin v. lleuton, 9 Wis. 476 ; Hor- W. Rep. 1102; Gregor v. Hyde, 62 Fed. ton v. Bloedorn, 37 Neb. 666, 56 N. W. Rep. 107, per Thayer, J. ; Eddy r. Herrin, Rep. 321 ; Claflin v. McDonough,33 Mo. 17 Me.338; James y. Roberts, 1 8 Ohio, 548, 412, 84 Am. Dec. 54; Buchanan v. Sah- praetically overruling Moore i\ Adams, 8 leiu, 9 Mo. App. 552 ; Fulton v. Hood, 34 Ohio, 372, 32 Am. Dec. 723, where it was Pa. 365, 75 Am. Dec. 664 ; Miller v. Mil- held thiit, to set aside a deed on the ground ler, 68 Pa. 480 ; Youngs v. Simm, 41 111. of duress of im()risonmeiu, there must App. 28. 75 § so.] DISABILITY FHOM DURESS. if lie AViis justly amenable to criminal prosecution and there are no circumstances of oppression or fraud, or he was in good faith believed to be liable to such prosecution.^ What constitutes a lawful arrest or imprisonment is a question upon which there is some variance of opinion. The views expressed by Mr. Justice Knowlton in a recent decision in Massachusetts seem to be sound : " It has sometimes been held that threats of imprisonnKMit, to constitute duress, must bc^ of unlawful imprisonment. But the question is, whether the threat is of imprisonment which will be unlawful ill reference to the conduct of the threatener who is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat, which was made for the purpose of forcing a guilty person to enter into a contract, may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered in reference to his effort to use for his private benefit processes provided for the protection of the public and the punishment of crime. One who has over- come the mind and will of another for his own advantage, under such circumstances, is guilty of a p(M'version and abuse of laws whicii were made for another purpose; and he is in no position to claim the advantage of a formal contract obtained in that way, on the ground that the rights of the parties are to be determined by their language and their overt acts, without reference to the influ- ences which moved them. In such a case, there is no reason why one should be bound by a contract obtained by force, which in reality is not his, but another's." - 1 Crowne v. Bay lis, 31 Beav. 351 ; Greg- Claflin v. McDonougli, 33 Mo. 41 2, 84 Am. or V. Hyde, 62 Fed. Rep. 107 ; Sanford v. Dec. 54; Davis v. Luster, 64 Mo. 43. SornboPfrer, 26 Neb. 295, 41 N. W. Ivep. ^ Morse v. Woodworth, 155 Mass. 233, 1102; Thorn 1-. Piiikliiun, 84 Me. 101,24 251, 29 N. E. Rep. 525. " We arcaware," All. Rep. 718, 30 Am. St. Rep. 335 ; Ilil- further say the court, "that there are born V. Bucknam, 78 Me. 482,7 Atl. Rep. cases which tend to support the contention 272,57 Am. Rep. 816; Eddy v. Ilerrin, of tlie defendant. Harmon v. Harriion, 17 Me. 338, 35 Am. Dec. 261 ; WhitcfK^ld 61 Me. 227 ; Bodine i'. Morgan, 10 Htew. V. Longfellow, 13 Me. 146 ; Alexander ;-•. 426,428; Landa v. Obcrt, 45 Tex. 539; Pierce, 10 N. H. 494; Compton v. Bun- Kua])]) r. Hyde, 60 Barb. SO. But we are ker Hill Bank, 96 111. 301, 36 Am. Roj). of opinion that the view of the subjeft 147; Legg v. Leyman, 8 Biuckf. 148; hcretolFore taken by this court, which we Work's A pp. 59 Pa St. 444; Fulton v. have followed in this opinion, rests on Hood, 34 Pa. St. 365, 75 Am. Dec. 664; sound principles, and is in couf;jrmity with Stouffer V. Latsliaw, 2 Watts, 165, 27 Am. most of the recent decisions in such cases, l>ec. 297 ; Bodine i'. Morgan, 37 N. J. Eq. both in Eiif;laiid and America. Hackct: 426; Sickles r. Carson, 26 N. J. Eq. 440 ; r. King, 6 .Mln, 58 ; Taylor v. JjiqiHS, 76 DURESS BY THREATS. [§§ 87, 88. 87. It is not duress for one who believes that he has a good cause of action, or has been wronged, to threaten tiie wrong-doer with a civil suit.^ And if the wrong includes a vio- lation of the criminal law, it is not duress to threaten him with a criminal prosecution.^ It Is not duress to threaten the foreclosure of an existing mortgage upon the property in order to induce a wife to execute a new mortgage.^ A threat to bring a civil suit to compel the execution of a deed, unless the person threatened make such deed, does not constitute such duress as will avoid the deed.'^ The threat of a judgment creditor to levy execution on the property of his judgment debtor, or to arrest him on such execu- tion, is not such a duress as will render a deed or other contract made by the latter to avoid such levy invalid.^ But a contract extorted by the illegal use of an execution, and under circum- stances showing oppression on the part of the creditor, m;iy be avoided.^ 88. A husband and wife or parent and child may each 106 Mass. 291 ; Harris v. Carmodj, 131 Mass. 51 ; Bryant v. Peck, &c. Co. 154 M.1SS. 460, 28 N. E. Rep. 678 ; Williams y. Bayley, L. R. 1 II. L. 200, 4 Giff. 638, 663, note; Eadie c. Slimmon, 26 N. Y. 9; Ad- ams V. Irving National Bank, 116 N. Y. 606, 23 N. E. Rep. 7 ; Foley v. Greene, 14 R. I. 618 ; Sharon v. Gager, 46 Conn. 189 ; Bane v. Detrick, 52 111. 19 ; Fay i;. Oatley, 6 Wis. 42." See, also, Barrett v Weber, 125 N. Y. 18, 25 N. E. Rep. 1068. 1 Joues V. Houghton, 61 N. H. 51 ; Mas- colo V. Montesrtnto, 61 Conn. 50, 23 Atl. Rep. 714; Dixon v. Dixon, 22 N. J. Eq. 91 ; Tooker v. Sloan, 30 N. J. Eq. 394 ; Hunt V. Bass, 2 Dev. Eq. 292, 24 Am. Dec. 274 ; Dausch v. Crane, 109 Mo. 323, 19 S. W. Rep. 61 ; Harris r. Tyson, 24 Pa. St. 347, 64 Am. Dec. 661 ; Dunham v. Gris- wol.l, 100 N. Y. 224,3 N. E. Rep. 76; Clafliu I'. McDonoiigh, 33 Mo. 412, 84 Am. Dec. 54; Peckham v. Ilendren, 76 Ind. 47; Wilson v. Curry, 126 Ind. 161, 25 N. E. Rep. 896; Snyder r. Braden, 58 Ind. 143; Landa v. Ohert, 45 Tex. 539 ; Waller V. Cralle, 8 B. Mon. 11 ; Hi)lt v. Thomas (Cal.), 38 Pac. Rep. 891 ; Brumagim v. Tillinghast, 18 Cal. 265 ; Kohler v. Wells, &c. Co. 26 Cal. 606 ; Bucknall v. Story, 46 Cal. 589 ; Mayor, &c. v. LefFerman, 4 Gill, 425. And this is true even if the claim be an illegal one. Preston v. City of Boston, 12 Pick. 7, 12. In Brownell v. Talcott, 47 Vt. 243, a civil process maliciously sued out, which induced one through fear of arrest and imptisonment to make a sale, was held to be duress. 2 Hilborn i;. Bucknam, 78 Me. 482, 7 Atl. Rep. 272, 57 Am. Rep. 816, per Wal- ton, .J. 3 Buck V. Axf, 85 In 1. 512 ; Edwards V. Bowden, 107 N. C. 58, 12 S. E. Rep. 58 ; Vereycken i". Vandenbrooks (Mich.), 60 N. W. Rep. 687. * Whittaker v. Southwest Va. Imp. Co. 34 W. Va. 217, 12 S. E. Rep. 507. 6 Wilcox u. Ilaviland, 23 Pick. 167; Grimes v. Briggs, 110 Mass. 446 ; Waller V. Cralle, 8 B. Mon. 11 ; Bunker v. Stew- ard (Me.), 4 At!. Rep. 558. 6 Thurman i-. Burt, 53 111. 129. 77 § 8^^-] DISAIULITY FUOM DURESS. avoid a contract induced by threats of the imprisonment of the other, whether such iinprisotmieiit would be lawful or unlaw- ful. This is an exception to the general rule that duress which will avoid a contract must be ollered to the person wlio seeks to take advantage of it.^ Except in the cases mentioned, it is gener- ally held that a deed or contract cannot be avoided by reason of the duress of a third person ; ^ though there are a few cases in which it has been held that a deed may be avoided because it was obtained by the duress of a dear friend, or near relative othei- than a parent or child." The distinction is also taken that, while a threat of lawful arrest and imprisonment of a person justly amen- able thereto is not duress when addressed to the person liable to such arrest or imprisonment, yet the same threat made to a wife to obtain the arrest of her husband on a criminal charge, or to a parent to obtain the arrest of his child, does constitute such duress as will serve to vitiate a conveyance if the threat in fact overcomes the will and occasions a forced assent, without refer- ence to the question whether it was or was not a threat of a law- ful arrest for adequate cause.^ " The exception in favor of husband 1 Huscombe v. Standingr, Cro. Jac. 187 ; Robinson e;. Gould, 11 Gush. 55; Plum- mer v. People, IC 111. 358, holding that a surety cannot plead the duress of bis principal. Thom])Son v. Lockvvood, 15 Johns. 256 ; Spaulding v. Grawford, 27 Tex. 155, lioliling that one obligor cannot avoid his bond by reason of the duress of hi« co-obligor. - Gaines v. Poor, 3 Met. (Ky.) 503, 79 Am. Dec. 559. * Sharon v. Gager, 46 Gonn. 189, where an aunt executed a mortgage fearing the imprisonment of her nephew; Bradley i». Irish, 42 111. App. 85, the case of the duress of a grandparent on account of her grand- son, who was also an adopted son ; Schultz V. Gatlin, 78 Wis. 611, 47 N. VV. Rep. 946, the duress of a sister whose brother was threatened ; Rau v. Von Zed- litz, 132 Ma.ss. 164, duress of a woman whose intended husband, on the eve of marriage, was threatened. * M'Glintick v. Gummins, 3 McLean, 158. Alabama : Holt v. Agnew, 67 Ala. 300. 78 Georgia: Small r. Williams, 87 Ga, 681, 13 S. E. Rep. 589 ; Southern Exp. Co. v. Duffy, 48 Ga. 358. Illinois : Bradley v. Iri Meech V. Lee, 82 Mich. 274, 46 N. W. Rep. 383 ; Miller?;. Minor Lumber Co. 98 Mich. 163, 57 N. W. Rep. 101. Missouri: Davis v. Luster, 64 Mo. 43 ; McCoy v. Green, 83 Mo. 626. Nebraska : Beindorff v. Kauff- man (Neb.), 60 N. W. Rep. 101. New Jersey : Lomcrson v. .Johnston, 44 N. J. Eq. 93, 13 Atl. Rep. 8. New York: Schoener f. Llssaiier, 107 N. Y. Ill, 13 N. E. Rep. DURESS BY THREATS. u and wife is not based solely upon the legal fiction that they are in law one person, but rather upon the nearness and tenderness of the relation. The substantial reasons of the exception apply as strongly to the case of a parent and child as to that of husband and wife. No more powerful and constraining force can be brought to bear upon a man to overcome his will, and extort from him an obligation, than threats of great injury to his child." ^ In some cases, however, it has been held that, if the debt was actually due and the criminal accusation well-founded, or believed upon reasonable grounds to be so, a mortgage or deed executed by a wife or son under threats of criminal prosecution is not invalid as given under legal duress.^ Where a mortgage was executed by a wife to secure the debt 741 ; 36 Hun, 100; Metropolitan L. Ins. Co. V. Meeker, 85 N. Y. 614; Adams r. Ir- ving Nat. Bank, 116 N. Y. 606, 23 N. E. Eep. 7, 15 Am. St. Rep. 447 ; Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395 ; Osborn v. Robbing, 36 N. Y. 365 ; Haynes u.Rudd, 30 Hun, 237 ; Strang v. Peterson, 10 N. Y. Snpp. 139, 56 Hun, 418. North Carolina: Ware v. Nesbit, 94 N. C. 6G4 ; Simms v. Barefoot, 2 Hayw. 402. Ohio: Western Av. Build. Asso. v. Walters, 7 Ohio C. C. 202. Pennsylvania : :McGror7 V. Reillej, 14 Phila. Ill ; National Bank V. Kirk, 90 Pa. 49 ; Jordan v. Elliott (Pa.), 12 Week. N. C. 56. See, however, Fulton V. Hood, 34 Pa. St. 365. Rhode Island: Foley V. Greene, 14 R. I. 618, 51 Am. Rep. 419. Tennessee: Coffman ?j. Look- out Bank, 5 Lea, 232, 40 Am. Rep. 31. Wisconsin : McCormick Harvesting Mach. Co. V. Hamilton, 73 Wis. 486, 41 N. W. Rep. 727 ; Schultz v. Culbertson, 46 Wis. 313, 1 N. W. Rep. 19, 49 Wis. 122, 4 N. W. Rep. 1070; Schultz i-. Catlin, 78 Wis. 611, 47 N. W. Rep. 946, where a sister signed a note because of threats to prose- cute a brother for a crime ; City Nat. Bank I'. Kusworm (Wis.), 59 N. W. Rep. 564. 1 Harris v. Carmody, 131 Mass. 51, 41 Am. Rep. 188 ; Williams v. Bayley, L. R. 1 H. L. 200. In Bailey v. Williams, 4 Giff. 638, 659, the Vice-Chancellor in the Chancery Court said : " If the fear of the criminal prosecution against the plaintiff's son, or if the result of the diricovery of a criminal act for which the plaiuiiff was not liable, was used by the defendants against the plaintiff to operate upon his fears, so as to induce him to give a secu- rity which would relieve his son from a criminal prosecution, according to the law of this court a security obtained under such circumstances cannot stand. The inequal- ity in the situation of the parties, the one exacting a security which the other is driven to give in order to save his son from exposure, disgrace, and ruin, taints the security obtained under the influence of such fears. If the main and influencing purpose was the relief of the son from the consequences of his crime, — if this was the main consideration operating on the father's mind and was the origin and real cause of the transaction, — the intervention of other circumstances or other collateral advantages to the father will not be enough to justify the court in ujiholdine such a security." See, however, Harmon V. Harmon, 61 Me. 227, 14 Am. Rep. 556. - Smith V. Rowley, 66 Barb. 502 ; Mnn- dy f. Whittemore, 15 Neb. 647; Green v. Scranage, 19 Iowa, 461, 87 Am. Dec. 447 ; Gohegan v. Leach, 24 Iowa, 509, an ex- ceptional and peculiar decision. These earlier cases in Iowa seem to be practically overrtilcd in First Nat. Bank v. Bryan, 62 low.i, 4 J. 17 N. W. Rep. 165. 79 § >^-M DISAlULirV l-KOM DUKKSS. of lior luisbaiul, by reason of threats of ciiiiiiiial proceedings against liiin muler false charges of embezzh^meiit, tlie fact that the iiiortgagi'd ])i-operty was purchased by the husband with the nidiiey oi" the party making the threats, and fraudulently con- Yi'vcd to the wife, has no tendency to show the mortgage valid. ^ III. Duress of Property. 89. Duress of property exists where there is a threat to do some act respecting the property of another which the threaten- ing party has no legal right to do, involving the loss, destruction, or injury of his property. To constitute such duress, there must be some illegal exaction, or some fraud or deception, in regard to such property. The restraint must be imminent, and such as to destroy free agency in a mind of ordinary firmness without pres- ent means of protection.^ There is no duress where the threat in regard to property is to do something which the party threatening has a legal right to do •,^ or to do something which he manifestly 1 Singer Manuf. Co. v. Rawson, ,50 Iowa, 634. See, however, Smith v. Eow- lej, 66 Barb. 502. ■^ Astley V. Keyuolds, 2 Strange, 915 ; Gates j;. Hudson, 6 Exch. 346 ; Close v. riiipps, 7 Man. & G. 586; United States V. Iluckalile, 16 "Wall. 414; Robertson v. Prank, 132 U. S. 17, 10 Sup. Ct. Rep. 5. Colorado: Adams v. Schiffer, 11 Colo. 15, 17 Pac. Rep. 21, 7 Am. St. Rep. 202. Georgia: Crawford v. Cato, 22 Ga. 594. Illinois : Peraberton v. Williams, 87 111. 16 ; Spaids V. Barrett, 57 111. 484, 11 Am. Rep. 10. Maine: Chamberlain r. Reed, 13 Me. 3.'-)7, 29 Am. Dec. 506. Maryland : Cen- tral Bunk v. Copeland, 18 :Md.305,81 Am. Dec. 597. Massachusetts : Chandler v. Sanger, 114 Mass. 364, 19 Am. Rep. 367; McMnrtrie v. Kecnan, 109 Mass. 185. Michigan: Ilncklcy v. Headlov, 45 Micb. 569, 8 N. W. Rep. 51 1 . New York : Foshay V Ferguson, 5 Hill, 154 ; Peyser v. Mayor, 70 N. Y. 497, 26 Am. Rep. 624 ; Schoiey i\ Mumfonl, 60 N. Y. 498 ; Briggs r. Boyd, 56 N. Y. 289 ; Gates v. Dundon, 18 N. Y. Siipp. 149. Pennsylvania: Heysbam v. Dettre, 89 Pa. St. .50f. ; Miller v. Miller, 68 Pa. St 486 ; White y. Heyliniin,34 I'a. St. 142; Motz f. Miteh.ll, 91 Pa. St. 114. 8U South Carolina : Sasportas v. Jennings, 1 Bay, 470; Collins v. Westbury, 2 Bay, 211, 1 Am. Dec. 643. Wisconsin: York V. Hinkle, 80 Wis. 624, 50 N. W. Rep. 895, 27 Am. St. Rep. 73 ; Macloon v. Smith, 49 Wis. 200, 5 N. W. Rep. 336. That there is no duress of property suf- ficient to avoid a deed or contract, see Sliep. Touch. 61; Coke, 2 Inst. 483; Skeate «. Beale, 11 Ad. & El. 983, 990; Bingham v. Sessions, 14 Miss. 13 ; Hiizil- rigg V. Donaldson, 2 Met. (Ky.) 445 ; Ed- wards V. Handley, Hardin (Ky.), 602, 3 Am. Dec. 745. 3 Skeate v. Beale, 1 1 Ad. & El. 983; Hack- ley y, Headlcy, 45 Mich. 569, 8 N. W. Rep. 511, 21 Am. L. Reg. N. S. 109; Preston V. Boston, 12 Pick. 714; Zents v. Shaner (Pa), 7 Atl. Rep. 197; Burke w. Gould (Cal), 38 Pac. Rep. 733, per Searles, J. : " The whole question is in a nutshell. To pursue or threaten to pursue the usual le'.;iil steps for the collection of a debt in the manner provided by law does not con- stitute duress of property." And see Kob- ler I'. Wells, 26 Cal. 606. In Buck v. Axt, 85 Ind. 512, which was an action to fore- close a mortgage executed by Buck and wife to secure an antecedent debt owing DEFENCE AND PROOF OF DURESS. [§90. has no power to do, and the threatened act would be wholly inef- fectual. ^ Money paid by a mortgagee in excess of the amount due on the mortgage, to stop foreclosure proceedings, is a voluntary payment, and not one made under duress.^ A deed of trust between husband and wife settling certain prop- erty belonging to the wife upon the husband, executed by her on competent advice, cannot be set aside for duress of goods by reason of his having held property which she asserts was hers, and of which she desired to recover as much as possible, it appear- ing that she had conveyed such property to him through a third person, and her testimony that such conveyance was a fraud on her being contradicted.^ IV. Defence and Proof of Duress. 90. It is no defence that a deed was procured by threats if the grantee was ignorant of the fact, and the threats were made by a third person who was not in any way the agent of the grantee ; as for instance where, without the knowledge of the grantee, a husband had induced his wife by threats to execute by the husband, the wife pleaded duress, and averred she executed the mortgage under a threat that if she refused " they would sell her out of house and home, and Frazier would prosecute her at once." The court, in holding the allegation of duress insufficient, said : " The threats alleged were not such as to constitute du- ress. The evident meaning of the threats used was that Frazier would at once seek his legal remedies against her and her hus- band, and so sell them out of house and home ; and if more than this was meant, the facts should have been alleged to show it." 1 Wills V. Austin, 53 Cal. 152. 2 Vereycken v. Vandenhrooks (Mich.), 60 N. W. He]). 687. Montgomery, J., said : " Some courts have held that there can be no duress of real property which remains in the possession of the payor, but most courts hold the contrary. State v. Nelson, 41 Minn. 25, 42 N. W. Hep. 548; Pember- ton V. Williams, 87 111. 15 ; White v. Ileyl- man, 34 Pa. St. 142 ; Joannin v. Ogilvic, 49 Minn. 564, 52 N. W. Rep. 217. So it has VOL. I. been held that, if the mortgagee of land re- quire that the mortgagor pay more than is legally due, for the purpose of preventing a foreclosure by advertisement, this is such a compulsory payment as entitles the party to sue and recover back the excess. But it i.s to be noted that in such a case the mortgagee, by his own act, unaided by any process of court, has it within his power to deprive the mortgagor of his title Such was not the case here. All that the plain- tiff had done was to file a bill to obtain a decree of the court fixing the amount due. Before any decree could pass against the present plaintiff, he was entitled to his day in court. Under these circumstances, we think there was no duress of property such as the law recognizes. See Forbes v. Ap- pleton, 5 Cu.sh. 115; Benson v. Monroe, 7 Cush. 125; Taylor v. Board, 31 Pa. St. 7.'5 ; Oceanic Steamship Co. v. Tappan, 16 Blatchf. 296, Fed. Cas. No. 10,405 ; Mari- posa Co. r. Bowman, Deady, 228, Fed. Cas. No. 9,089. 3 Chase v. Phillips, 1.53 Mass. 17, 26 N. E. Rep. 136. 81 5;^ iU, 92.] DISAUILITY FROM DUIIKSS. tlu' cli'Cil.^ Tlio mortgagee has, liowever, been held responsible for the husbamrs acts in such case, on the ground that he had allowed the Iiusband to ac^t as his agent.- 91. A bona fide purchaser for value from the grantee in a deed obtained through duress of the grantor is not aflfected by such duress. Duress and fraud are causes for annulling a deed procured thereby only between the parties, or against sub- sequent purchasers having notice."^ But a purchaser who has knowledge that the deed was procured by duress, or has not paid in good faith actual consideration therefor, is in no better con- dition than the original grantee to resist the avoidance of the deed.* 92. The proof of duress must be clear. The evidence must be such that a conclusion of duress must inevitably follow. It is not enough that the facts lead to a strong inference of duress. The testimony of the grantor in contradiction of other witnesses is not sufficient to prove that the execution of the deed was not voluntary.^ It must be shown that the duress was effective in the particular transaction under consideration. To render the deed of a wife invalid for duress on the part of her husband, it is not sufficient to prove that he was a violent, turbulent, and in- temperate man in his habits ; that he was domineering towards his wife ; that she was afraid of him, and was in the habit of 1 Fairbanks v. Snow, 145 Mass. 153, 261; Deputy r. Stapleford, 19 Cal. 302; 154, 13 N. E. Rep. 596, per Plolmes, J.; Cook v. Moore, 39 Tex. 255; Wood v. Morse v. Woodworth, 155 Mass. 233, 29 Craft, 85 Ala. 260, 4 So. Rep. 649. See, N. E. Rep. 525, per Knowlton, J. ; Fijiht- however, Belote v. Henderson, 5 Coldw. master v. Levi (Ky.), 17 S. W. Rep. 195; 471, 98 Am. Dec. 432. Thompson v. Niggley, 53 Kans. 664, 35 •* Osboni v. Robbins, 36 N. Y. 365; Pac. Rep. 290; Rogers v. Adams, 66 Ala. Brown v. Teck, 2 Wis. 261, 279; Goodrich 600; Compton v. Bunker Hill Bank, 96 v. Cushman, 34 Neb. 460, 51 N. W. Rep. 111. 301, 36 Am. Rep. 147; Comegys f. 1041; McCandless v. Engle, 51 Pa. St. Clarke, 44 Md. 108 ; Central Bank v. 309. Copeland, 18 Md. 305; Lefebvre r. Du- ^ Insurance Co. v. Nelson, 103 U. S. truit, 51 Wis. 326, 8 N. W. Rep. 149, 37 544; Snyder v. Snyder, 95 Mich. 51, 54 Am. Hep. 833 ; iEtna L. Ins. Co. v. Franks, N. W. Rep. 721 ; Feller v. Green, 26 Mich. 53 Iowa, 618, 6 N. W. Rep. 9; Line v. 70; Lefebvre z;. Dutruit, 51 Wis. 326, 37 Blizzard, 70 Ind. 23; Cook v. Moore, 39 Am. Rep. 833; Holt v. Agnew, 67 Ala. Tex. 255. . 360 ; Post v. First Nat. Bank, 138 111. 559, 2 Central Bank v. Copeland, 18 Md. 28 N. E. Rep. 978; Brower w. Callender, 305, 81 Am. Dec. 597. 105 111. 88; Hamilton v. Smith, 57 Iowa, 8 Eberstein v. Willets, 134 111. 101, 24 15, 10 N. W. Rep. 276; Davis y. Fox, 59 N. E. Rep. 967; Brown v. Peck, 2 Wis. Mo. 125. 82 DURESS RENDERS DEED VOIDABLE ONLY. [§§ 93, 94. obeying all his commands.^ It must be shown that the duress was effective at the time of the execution of the conveyance, the validity of which is called in question. ^ The burden of proof is upon the party who seeks to set aside a conveyance on account of duress. ^ Thus, in an action brought by a married woman to set aside a mortgage of her property to trustees of a land society to secure moneys which had been mis- appropriated by her husband, who was the secretary of the soci- ety, on the ground that the security was given under threats of a criminal prosecution against her husband, it was held that the burden was on the plaintiff to prove pressure or undue influence.* After a delay of several years by the grantor before taking action to set aside a deed obtained from him by duress, it requires undoubted and conclusive evidence of such duress to induce a court of equity to interfere.^ V. Duress renders Deed voidable only. 93. If the duress consists of threats only, the deed is not void but merely voidable.*' Such duress is distinguished from the case where the grantor's signing and delivering of the instru- ment are not his acts, as, for instance, where the signing and delivering are compelled by actual physical force. Duress by imprisonment, when used to procure the execution of a deed, may make it void ; but the statement of the rule by Sheppard needs qualification.'' 94. A deed given under duress may be ratified and made 1 Freeman v. Wilson, 51 Miss. 329. of no distinct adjudication of binding au- And see Insurance Co. j;. Nelson, 103 U.S. thority that mere threats by a stranger, 544. made without knowledge or privity of the * Jackson v. Ashton, 11 Pet. 229; Fisk party, are good ground for avoiding a V. Stubbs, 30 Ala. 33.5. contract induced by them." Lyon t;. Wal- * Insurance Co. v. Nelson, 103 U. S. do, 36 Mich. 34.5, court equally divided. 544. 7 Touchstone, 61 : "A deed, therefore, * McCIatchie v. Haslam, 65 L. T. Rep. . . . that is made or obtained by menace (N. S.) 691, 63 L. T. Rep. (N. S.) 376, 17 or duress, /. e., when one doth threaten Cox Crim. Cas. 402. See, also, Barrett another to kill or maim him if he will not W.Weber, 125 N. Y. 18, 25 N. E. Rep. make him such a deed, or doth imprison 1068. another until he make him such a deed, ^ Davis V. Fox, 59 Mo. 125. and tliereupon he make the deed, — a deed * Eberstein v. Willets, 134 III. 101, 24 thus obtained by force and through fear, N. E. Rep. 967 ; Fairbanks v. Snow, 145 to avoid danger, is void, and will not bind Mass. 153, 155, 13 N. E. Rep. 596, 1 Am. him that made it, nor avail him to whom St. Rep. 446, per Holmes, J. : " We know it is made." 83 5^ ;).").] DISABILITY FROM DURESS. valid by the acts of the grantor after his release from duress.-' Where a person arrested for hirceny conveys land to a person causing his arrest in satisfaction for the stolen property, after being released from arrest, and, having consulted with counsel, surrenders possession of tlie property conveyed, this constitutes a ratification of the conveyance.^ A deed by a wife executed under duress, by threats of a crim- inal prosecution against the grantor's husband for embezzlement from the grantees, is not void but voidable, and is ratified by the wife when, with full knowledge of its invalidity, and of the fact that her husband has escaped to a foreign country and is beyond the reach of a criminal prosecution, she voluntarily executes an- other deed to the grantees to induce them to purchase a lot of household furniture on the premises.^ The grantor may allow the deed to stand if he chooses. The privilege of avoiding it is a personal one, and cannot be availed of by the grantor's creditors or by any stranger.^ 95. One who seeks to avoid a deed on account of duress must not sleep upon his rights, but must move promptly. Clear and conclusive evidence in explanation of the delay is re- quired.^ Long delay raises a presumption of acquiescence and ratification, and when unexplained may have the effect of defeat- ing a recovery of the land. Thus, an unexplained delay of three years in bringing suit to set aside a deed alleged to have been obtained by duress, during which time the property has passed into the hands of innocent purchasers, has been held to bar the right to sue.^ 1 Ormes v. Beadel, 2 De G., F. & J. 333 ; ler v. Minor Lumber Co. 98 Mich. 1 63, Bodine v. Morgan, 37 N. J. Eq. 426 ; Ed- 57 N. W. Rep. 101 ; Heckman v. Swartz, wards v. Bowden, 103 N. C. 50, 9 S. E. 50 Wis. 267, 6 N. W. Rep. 891 ; Doolittle Rep. 194, 6 Am. St. Rep. 487. v. McCullough, 7 Ohio St. 299 ; Reed v. 3 Eberstein v. AVillets, 134 111. 101, 24 Exum, 84 N. C. 430, 432, per Smith, C. N. E. Rep. 967. J. ; Murphy v. Paynter, 1 Dill. 333. In 2 Miller v. Minor Lumber Co. 98 Mich. Murphy v. Paynter a bill to set aside a 153, 57 N.W. Rep. 101. And see Edwards deed for duress was dismissed for an un- V. Bowden, 103 N. C. 50, 9 S. E. Rep. explained delay of twelve years. 194, 6 Am. St. Rep. 487. 6 Eberstein v. Willets, 134 111. 101, 24 * Lewis I'. Bannister, 16 Gray, 500; Mc- N. E. Rep. 967. See, also, Bouldin v. Clintick V. Cummins, 3 McLean, 158; Reynolds, 58 Md. 491 ; Lefebvre v. Du- Thompson v. Lockwood, 15 Johns. 256. Unit, 51 Wis. 32G, 8 N. W. Rep. 149, 37 ^ Eberstein u. Willets, 134 111.101,24 Am. Rep. 833, a delay of two years was N. E. Rep. 967; Lyon i;. Waldo, 36 Mich, declared to be not without significance, 345 ; Hunt v. Ilardwick, 68 Ga. 100 ; Mil- but not to be a controlling fact. 84 DUEESS RENDERS DEED VOIDABLE ONLY. [^ 96. In Massachusetts such a deed may be avoided by the entry of the grantor or his heirs within twenty years.^ 96. When a court of equity sets aside a deed executed under duress, it will compel a reconveyance upon terms just to both parties. In a case where there had been a delay of fourteen years, the court said : ^ " All that the plaintiff is en- titled to is the restoration of his laud in the state in which it was taken from him, with compensation for the use meanwhile, and for any damages it may have sustained. On the other hand, its increase of value from improvements is a proper counter-claim against the wronged owner. But this counter-claim should be discharged from the earlier annual rents, as well as the purchase- money paid ; and when the successive rents have absorbed the amount of these demands of the defendant, the remaining rents of the land as improved (not barred by the statute of limitations) will be the measure of the plaintiff's recovery. This increased rent is given because the improvements will then have been dis- charged out of the plaintiff's funds." 1 Worcester v. Eaton, 13 Mass. 371, 7 8 Rged v. Exum, 84 N. C. 430, 433. Am. Dec. 155. 85 CHAPTER VI. DISABILITY FIIOM UNDUE INFLUENCE. I. What constitutes undue influence, 97-102. II. Contidential relation of the parties, 103-107. III. Kelatiou of parent and child, 1 OS- Ill. IV. llelation of husband and wife, 112, 113. V. Presumption and proof of undue in- fluence, 114-116. VI. Deed procured by undue influence is voidable only, 117, 118. I. What constitutes undue Influence. 97. Undue influence means wrongful influence. The influ- ence which will render a conveyance voidable is of such a nature as to deprive the grantor of his free agency. If the influence, however exerted, has the effect to control the grantor's volition and to induce him to do what he otherwise would not have done, it is undue or wrongful, and may be taken advantage of by the grantor himself, or by others injuriously affected, to have the deed set aside.^ " Where coercion is not suflicient to amount to duress, but a social or domestic force is exerted on a party which con- trols the free action of his will, and prevents any true consent in the making of a contract or execution of deed, equity may relieve against the same on the ground of undue influence." ^ 1 Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. Rep. 1001 ; Ralston v. Turpin, 129 U. S. 663,25 Fed. Rep. 7 ; Burt v. Quisen- berry, 132 111. 385, 24 N. E. Rep. 622; Sturtevant i-. Sturtevant, 116 III. 340; Yoe V. McCord, 74 111. 33, relating to a will ; Webber v. Sullivan, 58 Iowa, 260, 12 N. W. Rep. 319; Davis v. Calvert, 5 Gill & J. 269, 302, relating to a will ; Kithcart v. Larimore, 34 Neb. 273, 51 N. W. Rep. 768 ; Smith, in re, 95 N. Y. 516 ; Eckert r. Flowry, 43 Pa. St. 46, relating to a will ; Chappell v. Trent (Va.), 19 S. E. Rep. 314, relating to a will. Undue influence is defined by statute in California, Civ. Code, § 1575 : "1. In 86 the use by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such con- fidence or authority for the purpose of obtaining an advantage over him ; 2. In taking an unfair advantage of another's weakness of mind ; or 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress." And see DoUiver v. Dolliver, 94 Cal. 642, 30 Pac. Rep. 4. 2 Munson v. Carter, 19 Neb. 293, 27 N. W. 208, approved and followed in Hart- nett V. Hartnett (Neb.), 60 N. W. Rep. 362. And see Edwards v. Bowden, 107 N. C. 58, 12 S. E. Rep. 58. WHAT CONSTITUTES UNDUE INFLUENCE. [§ 98. Where any relation exists by virtue of which one person is able to exercise doininion over anotlier, the court will annul a transac- tion under which a person possessing that power takes a benetit, unless he can show the transaction was a righteous one.^ Thus, where a young woman transferred her property to her intended husband, who had no affection for her, and refused to marry her on any terms other than an absolute conveyance to him of all her property, and her letters showed an infatuation on her part which might impel her to give him all her estate free from any conditions, the transfer was not sustained.^ The influence usually denominated undue influence is a wrong- ful influence upon the mind and will of a person through per- suasion and artful effort, so that the will is controlled and the person is constrained to act in subjection to the will of another. When this influence is obtained by physical coercion, or by threats of personal harm, it is usually called duress. " Influence properly gained, although used for a selfish purpose and to obtain an un- just and unfair advantage, will not avoid a deed thereby obtained, unless there is fraud or duress, or the influence is exerted by a stronger mind over a weak one, in such a manner and to such a degree as to substitute the will of the person exerting the influ- ence in place of that of him upon whom it is exerted, so that the latter is no longer a free agent." ^ Moderate solicitation by one to induce another to execute a deed in favor of the former, even when accompanied with tears, does not constitute undue influence.* 98. Evidence and presumptions. — Where no confidential relation exists between the parties and the grantor's capacity is undoubted, the fact of undue influence must be established by satisfactory evidence; and until so established the ordinary pre- sumption attaches as to the validity of the deed, and the disposing capacity of the grantor ; and, on proof of due and pi'oper execu- tion of the instrument, the burden is on the attacking party to 1 Cooke V. Lamotte, 15 Beav. 234. 6 N. E. Rep. 428 ; In re Carroll, ,50 Wis. 2 Shaw V. Shaw, 9 N. Y. Supp. 897. 437, 7 N. W. Rep. 434 ; Carty v. Connolly, 3 Howe y. Howe, 99 Mass. 88, per Hoar, 91 Cal. 1.5, 27 Pac. Rep. 599; Miilicau J. See, aLso, Conley v. Nailor, 118 U. S. v. Millican, 24 Tex. 427 ; Simmerman v. 127, 134, 6 Sup. Ct. Rep. 1001 ; Ralston v. Songcr, 29 Gratt, 9, 24. Turpin, 129 U. S. 663, 9 Sup. Ct. Rep. * Doran v. MoConlogue, 150 Pa. St. 98, 420 ; Sturtevant v. Sturtevant, 1 16 111. 340, 24 Atl. Rep. 357. 87 § tjtj 1 DISABILITY FUOM UiNDUK liNFLUKNCE. prove bis cusl'.' Tiie allegation of uiiilue iulliience is tantamount to an allegalion of fraud. It is an aflfirmative fact that must be provL'il by the party alleging it.^ " What constitutes undue influ- ence is a question depending upon the circumstances of each par- ticular case. It is a species of constructive fraud which the courts will not undertake to define by any fi.Kcd principles, lest the very di4inition itself furnish a fiuger-boaid pointing out the path by which it may be evaded. But it is evident that its exercise may be inferreil in all cases of confidential or quasi-confiilential rela- tionship, where the power of the person receiving a gift or other like benefit has been so exerted upon the mind of the donor as, by improper arts or circumvention, to have induced him to confer the benefaction contrary to his deliberate judgment, reason, and discretion." ^ Whether a deed was procured by undue influence may properly be shown by proof of the circumstances attending the transaction ;^ and evidence of other transactions between the parties, not connected with or relating to the transaction in ques- tion, but occurring at about the same time, is admissible as bear- ing upon the relation of trust and confidence existing between them.^ A deed is not invalidated by evidence of declarations by the grantor that he did not execute the deed willingly or volun- tarily. Such evidence is not competent and should be wholly excluded.^ 99. Weakness of mind furnishes ground of suspicion of improper influence, and therefore, if any unfair advantage over a grantor can be shown or inferred from the circumstances of the transaction, a court of equity will afford relief against it.^ If the 1 Jones r. Jones, 137 N. Y. 610, 33 N. * Graham r. Burch, 44 Minn. 33, 46 E. Kep. 479, affirming 17 N. Y. Snpp. N. W. Rep. 148 ; Woodbury ?;. Woodbury, 905 ; Fisher v. Bishop, 108 N. Y. 25, 15 141 Mass. 329, 5 N. E. Rep. 275; Driike's N. E. Rep. 331 ; Arnold v. Whitcomb, 83 Appeal, 45 Conn. 9; Tyler v. Gardiner, Mich. 19, 46 N. W. Rep. 1029; Hamilton 35 N. Y. 559, 594. V. Armstrong (Mo.), 25 S. W. Rep. 545 ; ^ Jones v. Jones, 120 N. Y. 580, 24 N. Ireland v. Geraghty, 15 Fed. Rep. 35; E. Rep. 1016; Woodbury v. Woodbury, Kopp V. Gunther, 95 Cal. 63, 30 Pac. Rep. 141 Mass. 329, 5 N. E. Rep. 275. 301. ^ Dickie v. Carter, 42 111. 377, 389; •^ Roe V. Taylor, 45 111. 485; Guild v. Burt v. Quisenberry, 132 111. 385, 24 N. Hull, 127 111." 523, 20 N. E. Rep. 665; E. Rep. 622 ; Guild t>. Hull, 127 111. 523, Taylor v. Crockett (Mo.), 27 S. W. Rep. 20 N. E. Rep. 665. 620; Le Gendre v. Goodridgc, 46 N. J. "^ Allore v. Jewell, 94 U. S. 506 ; Hard- Eq. 419, 19 Atl. Rep. 543. ing v. Handy, 11 Wheat. 103, 2 Mason, 3 Shipman v. Furniss, 69 Ala. 555, 565, 378. In Harding v. Handy, 2 Mason, 44 Am. Rep. 528, per Somerville, J. 378, 386, Story, J., said : " Extreme weak- WHAT CONSTITUTES UNDUE INFLUENCE. [§99. consideration was inadequate, and the gi'antee occupied a situation of confidence or authority with respect to the grantor, the deed will not be allowed to stand. ^ The unnaturalness and. injustice in ness will raise an almost necessary pie- sumption of imposition, even when ifstops short of legal incapacity; and though a contract, in the ordinary course of things, reasonably made with such a person, might be admitted to stand, yet, if it should appear to be of such nature as that such a per;ou could not be capable of measuring its extent or importance, its reasonableness or its value, fully and fair- ly, it cannot be that the law is so much at variance with common sense as to uphold it." California : Carty v. Connolly, 91 Cal. 15, 27 Pac. Rep. 599; Richards v. Donner, 72 Cal. 207, 13 Pac. Rep. 584. Delaware : Guest v. Beeson, 2 Houst. 246. Georgia : Frizzell v. Reed, 77 Ga. 724 ; Causey v. Wiley, 27 Ga. 444. Indiana: Ashmead i'. Reynolds, 134 Ind. 139, 33 N. E. Rep. 763, 127 Ind. 441, 26 N. E. Rep. 80 ; Wray v. Wray, 32 Ind. 126 ; Ikerd v. Beavers, 106 Ind. 483, 7 N. E. Rep. 326. And see Jagers v. Jagers, 49 Ind. 428. Iowa: Corbit v. Smith, 7 Iowa, 60, 71 Am. Dec. 431 ; Marmon v. Marmon, 47 Iowa, 121 ; Harris v. Wamsley, 41 Iowa, 671 ; Oakey v. Ritchie, 69 Iowa, 69, 28 N. W. Rep. 448; Sparguri;. Hall, 62 Iowa, 498, 17 N. W. Rep. 743. Kentucky: Hounshell v. Sams (Ky.), 9 S. W. Rep. 410. Michigan: Case v. Case, 26 Mich. 484 ; Warteniberg v. Spiegel, 31 Mich. 400 ; Crips v. Towsley, 73 Mich. 395, 41 N. W. Rep. 332. Missouri: Crowe v. Pe- ters, 63 Mo. 429; Turner v. Turner, 44 Mo. 535 ; Bowles v. Wathan, 54 Mo. 261. Nebraska: MuUoy v. lugalls, 4 Neb. 115; Cole V. Cole, 21 Neb. 84, 31 N. W. Rep. 493. New Hampshire: Dennett v. Den- nett, 44 N. II. 531, 538,84 Am. Dec. 97, per Bell, C. J. New Jersey : Mead v. Coombs, 26 N. J. Eq. 173; Collins v. Collins (N. J. Eq.), 15 Atl. Rep. 849; Martling v. Martling, 47 N. J. Eq. 122; Morton v. Morton (N. J. Eq.), 8 Atl. Rep. 807. New York : Jackson v. King, 4 Cow. 216, 15 Am. Dec. 354. Ehode Island: Anthony v. Hutchins, 10 R. I. 165,176. Brayton, C. J., said : " It is not sufficient to suggest mere weakness or in- discretion of the party, unless it also be shown that there was fraud in the party contracting, or some undue means made use of to induce the agreement and con- trol that weakness. The degree of mental weakness may be below that which would justify a commission of lunacy, or the ap- pointment of a guardian, if it has been taken advantage of for the purpose. The cause of the weakness is not material. It may be from duress, general imbecility, accidental depression, constitutional de- spondency, or the result of sudden fear or apprehension." Soutli Carolina: Buncli V. Hurst, 3 Desaus. (Eq.) 273, 5 Am. Dec. 551. Texas: Beville v. Jones, 74 Tex. 148, 11 S. W. Rep. 1128. Washington: Kennedy v. Currie, 3 Wash. St. 442, 28 Pac. Rep. 1028. Wisconsin: Encking v. Simmons, 28 Wis. 272 ; Davis v. Dean, 66 Wis. 100, 26 N. W. Rep. 737. 1 Kempson v. Ashbee, L. R. 10 Ch. 15; Osmond v. Fitzroy, 3 P. Wms. 130; Wiight V. Proud, 13 Ves. 138 ; Huguenin V. Baseley, 14 Ves. 273 ; Dent v. Burnett, 4 Jlyl. & C. 2G9 ; Harvey v. Mount, 8 Beav. 439 ; Taylor v. Taylor, 8 How. 183 ; Jenkins v. Fye, 12 Pet. 241. Alabama: Waddell v. Lanier, 62 Ala. 347. Califor- nia : Klose v. Hillenbrand, 88 Cal. 473, 26 Pac. Rep. 352 ; Moore v. Moore, 81 Cal. 195, 22 Pac. Rep. 589. Georgia : Frizzell V. Reed, 77 Ga. 724. Iowa : Clough v. Adams, 71 Iowa, 17, 32 N. W. Rep. 10; Gardner v. Lightfoot, 71 Iowa, 577, 32 N. W. Rep. 510. Maryland: Highberger v. Stiffler, 21 Md. 338, 83 Am. Dec. 593; Cherbonnier v. Evitts, 56 Md. 276. Mas- sachusetts : Woodbury v. Woodbury, 141 .Mass. 329, 5 N. E. Rep. 275. Michigan: Hemphill v. Holford, 88 Mieli. 293, .iO N. W. Rep. 300; Smith v. Smith, 90 Mich. 97,51 N. W. Kep. 361. Minnesota : (ira- ham V. Burch, 44 Minn. 33, 46 N. W. Rep. 89 §§ 100, 101.] DISABILITY FROM UNDUE INFLUENCE. the traiisiiction may be enough to uuike a fair preponderance of eviilence on the side of the grantor's incompetency .^ The fact that a grantor of weak mind, in making a conveyance for an inad- equate consideration, acted without independent advice, is a clr- ounistance that will be taken into account in interfering to set aside the sale.^ 100. When mental -weakness on the part of the grantor is shown, his voluntary conveyance can be sustained only upon affirmative evidence that the conveyance was not procured by any undue influence. A voluntary conveyance by a father of sub- stantially all his property to his daughter to the exclusion of his other children will be set aside, where it is shown that the grant- or's weakness of mind was extreme, and that in other business transactions he was wholly controlled by the grantee. Such a conveyance could only be sustained by affirmative evidence that it was made without the exercise of any influence on the part of the grantee or in her behalf to procure it, and that the grantor fully understood the legal effect of his act.'^ A deed by an aged and infirm woman in consideration of love and affection to all her children except one daughter, in whose favor she expressed a de- sire to make some provision, but was overborne by the influence of some of the children in whose care she was, and who were at enmity with this daughter's husband, was properly set aside as procured by undue influence.^ 101. Though the grantor was of great age, if he was fully competent to transact all his business, and capable of a rational disposition of his property, a voluntary conveyance will not be set 148. New York : Fisher r. Fisher, 9 N. Y. N. W. Rep. 300 ; Paddock v. Pulsifer, 43 Supp. 4. North Carolina: Futrill v. Fu- Kuiis. 718, 23 Pac. Hep. 1049. trill, 5 Jones Eq. 61. Pennsylvania : Ar- ^ Allore i\ Jewell, 94 U. S. 506 ; Kemp- nold i;. Town send, 14 Phiiii. 216. South son i'. Ashbee, L. 11. 10 Ch. 15; Peebles Carolina : Sims v. McLure, 8 Kich. Eq. v. Ilorton, 64 N. C. 374 ; Potter v. Wood- 286, 70 Am. Dec. 196; Gaston v. Bennett, ruff, 92 Mich. 8, 52 N. W. Rep. 83. 30 S. C. 467, 9 S. E. Rep. 515. Texas: ^ Yhd\ v. Reiser, 79 Iowa, 34, 44 N. Millican v. Millican, 24 Tex. 426. Vir- W. llep. 214; Norton r. Norton, 74 Iowa, ginia. Fishburne v. Ferguson, 84 Va. 87, 161, 37 N. W. Rep. 129 ; Paddock v. Pul- 4 S. E. Rep. 575. Wisconsin: Kelly v. sifer, 43 Ivans. 718, 23 Pac. Rep. 1049; Smith, 73 Wis. 191, 41 N. W. Rep. 69; Clark u. Kirkpatiick (N. J. Eq.), 16 AtL Konrad v. Zimmerman, 79 Wis. 306, 48 Rep. 309; Smith v. Smith, 90 Mich. 97, N. VV. Rep. 368. 51 N. W. Rep. 361. 1 Hemphill )•. Ilolford, 8S Mich. 293,50 •* Miller v. Miufield, 79 Iowa, 64, 44 N. W. Kei). 540. 90 WHAT CONSTITUTES UNDUE INFLUENCE. [§ 102. aside on the ground of a presumption of improper influence.^ " Wiiile extreme age will not authorize the presumption of a want of mind or of mental power sufficient to enable one to conduct his business affairs, the chancellor will always scrutinize with vigi- lance the character of the transactions resulting in voluntary dona- tions or grants to those who are likely, from their surroundings, to have exercised an influence over the aged and infirm when thus disposing of their estate." ^ Evidence that a daughter in various ways directed and controlled the actions of her aged father, whose mind was not as vigorous as it had been, and whose intimacy with a married woman in the neighborhood was distaste- ful to his wife and other members of the family, but was ap- proved by his daughter, who spoke of her mother and the others in unfriendly terms, is sufficient to justify a finding that the deed was procured by undue influence.^ 102. A conveyance which seems unnatural and unjust towards the grantor's relatives does not of itself afiford any ground for impeaching its validity, if the grantor's capacity is undoubted, and there is no ground for presuming undue influence, and there is no proof of such influence. A grantor has the legal right to make an unequal, unjust, unnatural, or unreasonable dis- position of his property. It is only when the gx-antor's capacity is properly questioned, or improper influence is proved or presumed, or his relations to the grantee are confidential or unlawful, that his 1 Creswell v. Welchman, 95 Cal. 359 ; 347; Graham v. Burch, 44 Minn. 33,46 Burt ?;. Quisenberry, 132 III. 385, 24N. E. N. W. Rep. 148; Martini;. Martin, 1 Eep. 622 ; Arnold v. Whitcomb, 83 Mich. Heisk. 644 ; Kelly v. Smith, 73 Wis. 191, 19, 46 N. W. Hep. 1029; Brockway v. 41 N. W. Rep. 69 ; Le Gendre u. Byrnes Harrington, 82 Iowa, 23, 47 N. W. Rep. (N. J.), 23 Atl.Rep. 581, 19 Atl. Rep. 543; 1013; Buckey v. Buckey, 38 W. Va. 168, Haydock v. Haydock, 34 N. J. Eq. 570, 18 S. E. Rep. 383; Likins i;. Likins (Mo.), 574,38 Am. Rep. 385, Reed, J., saying: 27 S. W. Rep. 531. "I take the rule lo be settled that where 2 Sullivan v. Hodgkin (Ky.), 12 S. W. a ])crson, enfeebled in mind by disease or Rep. 773, per Pryor, J. And see Teabody old age, is so placed as to be likely to be I'. Kendall, 145 111. 519, 32 N. E. Rep. subject to the influence of another, and 674; Kimball v. Cuddy, 117 111. 213, 7 makes a voluntary disposition of that N. E. Rep. 589 ; Hill v. Miller, 50 Ivans, property in favor of that ])erson, the 659, 32 Pac. Rep. 354; Paddock v. I'ul- courts require jiroof of the fact that the sifer, 43 Kans. 718, 33 Pac. Rep. 1049; donor understood the nature of the act, Weller v. Weller, 112 N. Y. 655, 19 N. E. and that it was not done through the in- Rep. 433, nffirnn'ng 44 Ilun, 172 ; Todd v. flucnce of the donee." (irovc, 33 Md. 188; Ilighberger r. Stiiiler, » Peabody u. Kendall, 145 111. 519, 32 21 Md. 338; Waddell v. Lanier, 62 Ala. N. E. Rep. 674. 91 § 103.] DISABILITY I-'KOM liNDl K INILUKNCK. clisieoaiil of the nutunil und usual nioiles of disposing of property is of consequence.^ The facts and circumstances of the case may fully and satisfactorily explain the conduct of the grantor. Thus, if an only son has for a long time neglected his mother, and has not attempted to treat her as a mother, but she has lived with her nephews, who have kindly cared for her during many years, a conveyance to them of all her real estate, made shortly before her death, to the exclusion of her son, may be properly sustained.^ II. Confidential Relation of the Parties. 103. A voluntary conveyance to one who holds a confiden- tial relation to the grantor is looked upon with suspicion, and it is pi'esumed that the grantee obtained the conveyance by the ex- ercise of an influence unduly to his own advantage. Such a con- veyance will not be upheld, unless it is shown that the grantor acted under independent advice and fully understood the result and effect bf his act. In the words of Lord Langdale,^ the ine- quality between the transacting parties is so great " that, without proof of the exercise of pov/er beyond that which may be inferred from the nature of the transaction itself, this court will impute an exercise of undue influence." The burden is upon the grantee who receives a conveyance from a pei'son who confides in him, or is under the dominion of his influence, to show that a reasonable use has been made of such confidence or influence.^ " In many 1 Campbell v. Campbell, 75 Mich. 53, tagnie, 73 N. Y. 498; Comstock v. Com- 42 N. W. Rep. 670; Salisbury v. Aldrich, stock, 57 Barb. 453 ; Yosti i;. Laughran, 118 111. 199, 8 N. E. Rep. 777; Hale v. 49 Mo. 594; Muiison v. Carter, 19 Neb. Cole, 31 W. Va. 579, 8 S. E. Rep. 516 ; 293, 27 N. W. Rep. 208; Waddell v. La- Bledsoe v. Bledsoe (Ky.), 1 S. W. Rep. nicr, 62 Ala. 347. 10. " * Parfitt V. Lawless, L. R. 2 Probt. & D. 2 Hale i;. Cole, 31 W. Va. 579, 8 S. E. 468, per Lord Penzance; Gibson v. Jeyes, Rep. 516. And see Callery v. Miller, 1 N. 6 Vts. 27t<, per Lord Eldon ; Huguenin v. Y. Supp. 88. Baseby, 14 Ves. 273, 300. [ler Sir Samuel 3 Casborne r. Barsharn, 2 Beav. 76. Romilly ; Dent i-. Bennett, 4 M.vl. & C. 269, And see Iloghton v. Hoghton, 15 Beav. per Lord Cottenham ; Ralston r. Turpin, 278; Rhodes v. Bate, L. R. 1 Ch. App. 129U. S.663, 9 Sup. Ct. Rep. 420. Ala- 252, per Lord Justice Turner; Savery v. bama : Burke v. Taylor, 94 Ala. 530, 10 King, 5 H. L. Cas. 627; Parker v. Dun- S. E. Rep. 129 ; Lyons i'. Campbell, 88 can, 88 L. T. 326 ; Lyon i-. Home, L. R. Ala. 462, 7 So. Rep. 250; Shipman v. 6 Eq. Cas. 655; Miskey's App. 107 Pa. Furniss, 69 Ala. 555 ; Wood v. Craft, 85 St. 611 ; Watkins v. Brant, 46 Wis. 419, Ala. 260, 262, 4 So. Rep. 649. California: I N. W. Rep. 82 ; Bovd i;. De La Mon- Ross v. Conway, 92 Cal. 632, 636, 28 Par. 92" CONFIDENTIAL RELATION OF THE PARTIES. [§ 104. cases," said the Master of the Rolls, Rorailly, " the court, from the relations existing between the parties to the tiansaetion, in- fers the probability of such undue influence having been exerted. These are the cases of guardian and ward, of solicitor and client, spiritual instructor and pupil, medical adviser and patient, and the like ; and in such cases the court watches the whole transaction with great jealousy, not merely for the purpose of ascertaining that the person likely to be so influenced fully understood the act he was perforaiing, but also for the purpose of ascertaining that bis consent to perform that act was not obtained by reason of the inflaence possessed by the person receiving the benefit : not that the influence itself, flowing from such relations, is either blamed or discountenanced by the court ; on the contrary, the due exer- cise of it is considered useful and advantageous to society ; but this court holds, as an insepai-able condition, that this influence should be exercised for the benefit of the person subject to it, and not for the advantage of the person possessing it." ^ 104. The confidential relation is not confined to the usual Rep. 785, per Harrison, J. : " This rule finds its application with peculiar force in a case where the effect of the transaction is to divert an estate from those who, by the ties of nature, would be its natural recipients, to the person through whose influence tlie diversion is made, whether such diversion be for his own personal advantage, or for the advantage of some interest of which he is the representative. It has been more frequently applied to transactions bstween attorney and client, or guardian and ward, than to any other relation between the parties; but the rule itself has its source in principles wliich underlie and govern all confidential rela- tions, and is to be applied to all tran.«ac- tions arising out of any relation in which the principle is apidicable." Connecticut: Richmond's App. ^d Conn. 226, 22 Atl. Rep. 82. Iowa : Spargur v. Hall, 02 Iowa, 498; Gardner v. Lightfoot, 71 Iowa, .')77, 32 N. W. Uep. .510. Kansas : Paddock v. I'illsifer, 43 Kans. 718, 23 Pac. Rcf). 1049. Kentucky: McElwain v. Rtisscll (Ky.), 12 S. W. Rep. 777. Maryland: Todd v. Grove, 33 Md. 188; IIi;;hberger c. Stifiler, 21 Md. 338; Williams v. Williams, 63 Md. 371. Michigan : Smith v. Cuddy, 96 Mich. 562, 56 N. W. Rep. 89 ; Seeley v. Price, 14 Mich. 541 ; Witbeck v. Wit- beck, 25 Mich. 439 ; Wartemberg v. Spie- gel, 31 Mich. 400; Barnes v. Brown, 32 Mich. 146; Buncombe v. Richards, 46 Mich. 166, 9 N. W. Rep. 149; Jacox v. Jacox, 40 Mich. 473 ; Fiuegan v. Theiseu, 92 Mich. 173, 52 N. W. Rep. 619. Mis- souri: Armstrong v. Logan (Mo.), 22 S. W. Rep. 384. New Jersey: Pironi v. Corrigan, 47 N. J. Eq. 135, 20 Atl. Rep. 218 (N. J. L.), 23 Atl. Rep. 355. New York: Fisher v. Bishop, 108 N. Y. 25, 15 N. E. Rep. 331 ; Ford v. Harrington, 16 N. Y. 285; Freelove v. Cole, 41 Barb. 318; Mason v Ring, 2 Abb. Pr. N. S. 322; Ross v. Ross, 6 Hun, 80; Marx v. McGlynn, 88 N. Y. 357. Pennsylvania: Yardley v. Cuthbertaon, 108 Pa. St. 395, 1 Atl. Rep. 765, 56 Am. Rep. 218, relating to a will; Miskey's App. 107 Pa. St. 611. Washington: White y. Johnson, 4 Wash. St. 113, 29 Pac. Rep. 932. 1 Iloghton V. Iloghton, 15 Beav. 278, 299. 93 § 105.] PISAIULITY FIIOM UNDUK IXILUENCE. relations between persons which are so designated, but em- braces every ])Ossible fulueiary n^lution. Lord Kingsdown, in the House of Lords, said: " Equity is especially jealous to guard the welfare of the weaker party in all contracts between parent and child, guardian and ward, attorney and client, trustee and cestui que trust, and, indeed, in all persons standing in fiduciary rela- tions to each other. It is especially active and searching with gilts, voluntary conveyances, and deeds without due considera- tion; though its range is so wide as to cover all possible dealings between persons holding such relations, or any relations in which dominion, whether physical, intellectual, moral, religious, domes- tic, or of any sort, may be exercised by one party over the other, or in which the parties contracting are not at arm's-length." ^ Confidential relations may exist outside of the usual ones arising from the position of guardian and ward, attorney and client, pas- tor and churchman, physician and patient, and the like.^ " The confidential relation is not at all confined to any specific associa- tion of the parties to it. While its more frequent illustrations are between persons who are related as trustee and cestui que trust, guardian and ward, attorney and client, parent and child, hus- band and wife, it embraces partners and copartners, principal and agent, master and servant, physician and patient, and, gen- erally, all persons who are associated by any relation of trust and confidence. When the relation exists, the consequent duties and obligations are perfectly well established by long-settled law." ^ But the courts will not interfere to set aside a trifling gift or benefit conferred upon a person standing in a confidential relation to the giver, upon mere proof of the confidential relation, but only in case there is distinct proof of mala fides, or of undue exercise of influence.^ 105. Where the relation is one of special trust, such as 1 Smith V. Kay, 7 H. L. Cas. 750 ; to be most freely exercised." And Bee White & T. Lead. Cas. Eq. (cd. 1887) Jones r. Jones, 137 N. Y. 610, 33 N. E. 1184. Rep. 479, affirming 17 N. Y. Supp. 905; '- In the case of Dent w. Bennett, 4 Myl. Fisher v. Bishop, 108 N. Y. 25, 15 N. E. & C. 269, Lord Chancellor Cottenham Rep. 331 ; Bowe v. Bowe, 42 Mich. 195, said : " I will not narrow the rule, or run 3 N. W. Rep. 843. the risk of in any degree fettering the ^ Darlington's Est. 147 Pa. St. 624, 629, exercise of the beneficial jurisdiction of 23 Atl. Rep. 1046, per Green, J. this court, by any enumeration of the de- ■• Rhodes v. Bate, L. R. 1 Ch. App. 252, scription of persons against whom it ought per Turner, L. J. 94 CONFIDENTIAL RELATION OF THE PAKTIES. [§ 106. arises between a trustee and the beneficiary, between guardian and ward, attorney and client, principal and agent, physician and patient, any benefit secured by the first-named party in either of these relations is presumed to have been improperly secured, and it will be sustained only upon satisfactory evidence that it was the free and voluntary act of the other party. In dealings be- tween principal and agent, guardian and ward, trustee and cestui que trust, the burden of proof is upon the agent, the guardian, or the trustee, who claims a benefit arising from the transaction, to show the utmost good faith on his part, that iie took no advan- tage of his influence or knowledge, and that he brought every- thing to the knowledge of the other party which he himself knew.^ Thus, a provision in a deed of trust which gave a large compensation to the trustees, one of whom was the lawyer who wrote the deed, although the grantor was perfectly competent, was set aside because the compensation was excessive, and affirma- tive proof was not given that full explanation was made to the grantor of the character and effect of the provision. ^ A deed by a young man to a woman who had been for some years his nurse and attendant was set aside because the relation was regarded as of a confidential nature, and there was no af- firmative proof in support of the conveyance, though the grantor was mentally competent and no undue influence was brought to bear upon him, and he acted under advice.^ Of course, if the person holding the relation of trustee, agent, or other place of confidence, purchases with the consent of the party beneficially interested, given with a full knowledge of all the circumstances affecting the purchase, the conveyance will be sustained, though it will be set aside if there was any fraud or unfair advantage taken of the confidential relation.* 1 Ralston v. Turpin, 129 U. S. 603; bury f. Aldrich, 118 111. 199, 8 N. E. Rep. 9 Sup. Ct. Rep. 420 ; June v. Willis, 30 777. Fed. Rep. 11 ; Darlington's App. 86 Pa. 2 Greenfield's Est. 14 Pa. St. 489, per St. 512, per Trunkey, J.; Darlington's Bell, J. : " An attorney or other confiden- Est. 147 Pa. St. 624 ; Woodbury v. Wood- tial adviser is not permitted to avail him- bury 141 Mass. 329, .5 N. E. Rep. 275; self either of the necessities of his client, or Sears v. Hicklin, 13 Colo. 143, 21 Pac. of his good nature, liberality, or credulity, Rep. 1022; Taucre v. Reynolds, 35 Mitin. to obtain undue advantages, bargains, or 47G ; 20 N. W. Rep. 171 ; Dunn v. Dunn, gratuities." 42 N. J. Eq. 431, 7 At). Rep. 842 ; Whip- 3 Worrall's App. 110 Pa. St. 349. pie V. Barton, 63 N. II. 613, 3 AtL Rep. * Ilawley v. Tesch (Wis.), 59 N. W. 922 ; McHarry v. Irvin, 85 Ky. 322, 4 S. Rep. 670. W. Rep. 800, .-? S. W. Rep. 374 ; Salis- 95 §§ 100, 107.] DISAIULIIY FROM UNDUH INFLUKNCK. 106. If it is shown that a grantee to whom one has made a gift of land had a spiritual ascendency over the grantor, the burden of proof is shifted upon the grantee to show that the grantor knew the legal olfect of the tiansiiction.^ Thus, where a liomau Catholic woman, old, eccentric, and illiterate, being uniible either to read or write, made a will devising certain land to a priest who was her spiritual adviser, which she afterwards revoked, and by deed, reserving to herself a life estate, conveyed the land as a gift to the priest, who thereupon gave her a thou- sand dollars, to be expended in im[)roving the land, it was held that the burden was on the priest to prove that his grantor was fully apprised of the legal effect of her act when she signed the deed, and that she was not influenced by her confidential rela- tions with him. Because of the failure of such proof, the convey- ance was set aside upon the refunding of the money paid by the priest.^ 107. "Where the only relation between the parties is that of friendly habits, or habitual reliance on advice and assistance in some mutters, the relation can hardly be called a confidential one, though care must be taken that no undue advantage shall be made of the influence thus acquired. The mere circumstance that a deed of gift is made to a friend of long standing, who has been accustomed to advise the grantor in certain business matters, does not warrant the court in ascribing the deed to undue influ- ence improperly exercised over the grantor, making him the dupe of his friend's artifices, the victim of his contrivances, the subject 1 Norton v. Relly, 2 Eden, 286, where exercised upon the human mind, espe- the gift of an annuity obtained by a cially if such mind is impaired by physi- preacher who had a spiritual ascendency cal weakness, is so consonant with human over the donor, a woman, was set aside experience as to need no more than its upon principles of public policj'. And see statement ; and in any transaction be- Ford V. Hennessy, 70 Mo. 580. tween them, wherein the adviser receives '^ Carrif^an v. Peroni (N. J. L.), 23 Atl. any advantage, a court of equity will not Rep. 3b^), reversing 47 N, J. Eq. 135, enter into an investigation of the extent 20 Atl. Rep, 218; Finegan v. Theisen, to which such influence lias been exercised. 92 Mich. 173, 52 N. W. Rep. 619. For Any dealing between them, under such a similar case see Ross v. Conway, 92 circumstances, will beset aside as contrary Cal. 632, 28 I'ac. Rep. 785. In this case to all principles of equity, whether the Harrison, .J., said : " That the influence benefit accrue to the adviser, or to some which the spiritual adviser of one who other recipient who, through such influ- is about to die has over such person ence, may have been made the beneficiary is one of the most powerful that can be of the transaction." 96 RELATION OF PARENT AND CHILD. [§ 108. of his sway.^ But where a relation of confidence is shown to exist, slight proof of fraud or undue influence will be ground for setting the deed aside.^ Where deeds of gift were drawn by the husband of one of the grantees, the other being his wife's sister, at the positive direction of the donor, who was an intelHgent man with mind unimpaired, though sick at the time, no presumption of invalidity arises from the relation in which the husband stood to the grantor, though, if the husband's conduct in this matter had been tainted with the slightest injustice or wrong-doing, it would have avoided the deed, notwithstanding his wife and her sister were guilty neither of fraud nor any undue influence in procuring the deeds.-^ The mere relation of master and servant, or of boarder and landlord, raises no implication of a confidential relation which the courts will consider in proceedings in equity to set aside a conveyance.* III. Relation of Parent and Child. 108. The influence of a father over a child is such that if the father takes a voluntary conveyance, or one upon an inadequate consideration, from his son or daughter, the burden of proof is upon him to show that he did not unfairly take advantage of his influence and authority in the transaction.^ As said by Lord Chancellor Hatherly:^ "If the father himself takes a benefit, then arises the jealousy of the court, and we have to consider how the child's intention was produced ; and even if we find the inten- tion which the instrument describes, still the question arises, how 1 Pratt V. Barker, 1 Sim. 1,4 Russ. 507, Lord Cottenham ; Archer v. Hudson, 7 per Lord Brougbam ; Hiiuter v. Atkins, 3 Bcav. 551, per Lord Langdale ; "\Vychevl.>y MyL & K. 113, per Lord Brougham. v. Wvcheiley, 2 Eden, 175, 180, per Lord 2 Bavliss V. Williams, 6 Coldw. 440. Noithington ; Muzzy v. TompkinsoD, 2 8 Hamilton v. Armstrong, 120 Mo. 597, Wash. St. 616, 27 Pac. Rep. 456, 28 Pac. 25 S. W. Rep. 545, 20 S. W. Rep. 1054. Rep. G52 ; Miskey's App. 107 Pa. St. * Doran ;;. McConlogne, 1.50 Pa. St. 98, 61 1 ; Williams v. Williams, 63 Md. 371 ; 24 Atl. Rep. 357. It seem?, too, that there Knox v. Singmaster, 75 Iowa, 64 ; Toms is no special confidential or fiduciary re- r. Greenwood, 9 N. Y. Supp. 606 ; Bergeu lation hetween an officer of a corporation v. Udall, 31 Barb. 9 ; Noble v. Moses, 74 aud a person from whom smh officer Ala. 604, 1 So. Rep. 217; Baldock v. purchases the stock of the corporation. Johnson, 14 Oreg. 542, 13 Pac. Rep. 434 ; Krumbhaar v. Griffidi.s, 151 Pa. St. 223, Beville ;;. Jones, 74 Tex. 148, 11 S. W. 25 Atl. Rep. 64. Rep. 1 1 28. 6 Iloghton V. Iloghton, 15 Benv. 278; « Turner v. Collins, L. R. 7 Ch. App. Bellamy v. Sabine, 2 PhiU. 425, 439, per 329, 339. VOL, I. 97 § 108.] DISABILITY KKOM UNDUE INKLUKNCE. lias that intention been produced ? Influence is :i thing which is assumed as between father and ehikl, not that the influence is assiiineil to be unduly exercised, but that the inihience is assumed ; and it is then thrown upon the fatlier, if ho takes any benefit, to prove what is called the righteousness of the transaction, and the court has to see that every pro])er protection was thrown around the child, and that the child has deliberately and ad- visedly, and under protection, done that by which his father has obtained a benefit." Where a son, recently after attaining his majority, makes over property to his father without consideration, or for an inadequate consideration, a court of equity expects that the father shall be able to justif}'- what has been done ; to show, at all events, that the son was really a free agent, that he had adequate independent advice; that he was not taking an imprudent step under paren- tal influence, and that he perfectly understood the nature and extent of the sacrifice he was making, and that he was desirous of making it.^ Where a man enfeebled in mind and body made a voluntary conveyance of all his estate, worth seventy thousand dollars or more, to his father, for the benefit of his father, his mother, and sister, with the exception of a trust for his wife and son of the sum of ten thousand dollars, and the transaction was made under the professional advice of the father's attorney, without the know- ledge of the son's private attorney, the deed was set aside in favor of the grantor's widow. ^ When a parent takes the benefit of a voluntary conveyance from a child, two things are required to be proved by the parent setting up the deed : first, that the deed is the real deed of the child, and was intended to have the operation which it legally has ; and secondly, that such intention was fairly produced.^ 1 Savery v. King, 5 II. L. Cases, 627, artifice or contrivance was made use of to 657. Lord Chancellor Cranwortli said : induce him to do the act complained of; "I must not be understood as question- and that the son had competent means of ing the position that a son may give uj) forming an independent judgment." See, all or any portion of his property to his also, Williams v. Williams, 6.3 Md. 371 ; father without consideration. Undoubt- Koble v. Moses, 81 Ala. 530, 1 So. Rep. edly he may do so: but then it is incum- 217; Ashton v. Thompson, 32 Minn. 25, bent on the fatlier, accepting such a ben- 18 N. W. Rep. 918. efit, to .satisfy the court before which the ^ Miskey's App. 107 Pa. St. 611. transaction is impeached that the son fully " Hoghton v. Hoghton, 15 Beav. 278, understood what he was doing ; that no 302 ; Turner v. Collins, L. R. 7 Ch. App. 98 329. RELATION OF PAKENT AND CHILD. [§109. 109. A deed made by a parent to a child at his solicita- tion, and because of partiality induced by affection, is nut procured by undue influence, because it is not a wrongful influence. A deed m ide under such influence will nut be invalidated on the crround of undue influence, unless the court is convinced that the free agency of the grantor, at the time he executed the deed, was so .far destroyed that he would not have made the deed if left to himself.^ As between parents and children, the law makes no presumption of undue influence which the children are bound to explain in order to obtain the benefit of a voluntary convey- ance of property to them. The parental relation alone is enough to rebut any such presumption.^ A deed of gift by a motlier to her daughters, who execute in return a conveyance to her of a life estate in the same property, will not be set aside on her own application, where the evidence shows that when the deed was made the grantor declared that she made the conveyance so that her daughters might have a home ; that there was no exercise of undue influence by the grantees in procuring the execution of the deed ; that there was no advantage taken of any confidential relation ; and that there was no mental unsoundness or feebleness on the part of the gran tor. 3 When a husband and wife separate, and one son remains with the father, taking his part, sharing his confidence and affection and assisting him in his affairs, and the other children go with the mother, taking her part in the family differences, and this state of things continues for years, until terminated by the death of the father, it is natural and reasonable that the fatlier, in disposing of his estate, should desire to specially provide for the son who remained with him and took his part ; and a deed made by him with this object, and under the natural influences spring- ing from such relationship, will be sustained, unless it be made 1 Le Gendre v. Goodridge, 46 N. J. W. Hep. 465 ; Carty v. Connolly, 91 Cal. Eq. 419, 19 Atl. Rep. 543; Sullivan ;;. 15, 27 Tac. Rep. 599 ; Burt y. Quisenberry, Ilodgkin (Ky.), 12 S. W. Rep. 773 ; Bush 132 III. 385, 24 N. E. Rep. 622 ; Hansen V. Johnson (Ky.), 12 S. W. Rep. 758; ?;. Berthelson, 19 Neb. 43.3, 27 N. W. Rep. Fitz ratrick v. Fitz Patrick, 91 Mich. 394, 423. 51 N. W. Rpp. 1058 ; Lynch v. Doran, 95 ^ Simon v. Simon (Pa. St.), 29 Atl. Mich. 395, 54 N. W. Rep. 882 ; Brockway lie]). 657, per Green, J. r. IIarrinf,^ton, 82low.i, 23, 47 N. ^y. Rep. » Simon t;. Simon (Pa. St.), 29 Atl. 1013; Moss y. Moss, 78 Iowa, 645, 43 N. Rep. 657. 99 § 110.] DISABILITY FKOM UNDUK INFLUKNCE. further to n[)i>fai' tliat the son pi-acLised ii[)()u the fatlier iinpo- oition, fraud, iinportunity, duress, or somctliiug of that nature,' iu order to secure its execution.^ AVhere a woman made a conveyance to the widow of her de- ceased son of hiiid inherited by the grantor from her son, the evidence showed that the grantor was a woman of ordinary intel- ligence ; that she understood her rights as heir of her son ; that she made the conveyance on the advice and solicitation of her daughter, who pressed upon her the claims of her son's wife to all the property acquired by the son; and that there was no decep- tion used. It was held that there was no ground for annulling the deed on the ground of undue influence. ^ 110. It is true, nevertheless, that the natural position of parent and child may become changed, and the parent may- become subject to the dominion of the child to such an extent that any deed of gift from tlic parent to the child will be viewed with great suspicion and set aside, unless satisfactory evi- dence is produced that the deed was not obtained by wrongful influence. When it is once shown that this influence exists, there is a presumption of its continuance, and the burden of proof will be upon the child to show that it did not exist at the time of the deed of gift.^ Where a son has maintained a long intimacy with his father, and has had the management of his affairs, a con- fidential relation between the father and son is induced, which, resembling that between client and attorney, principal and agent, parishioner and priest, compels proof of a valuable consideration and bona fides in order to sustain a deed from one to the other.^ A father, according to a long-fixed and often-expressed inten- tion, conveyed a part of his laud to his natural daughter, to whom he was deeply attached. His legitimate daughter and her husband importuned him, with threats, to have the land recon- veyed to him. He thereupon went, with the counsel of his son- in-law, to the first-mentioned daughter, and, in the absence of any one to represent and advise her, persuaded her to sign unwillingly 1 Mackall v. Mackall, 135 U. S. 107, 47 N. J. Eq. 122, 20 Atl. IJep. 41 ; Spar- 168, 10 Sup. Ct. Rep. 70.5, per Brewer, J. gur v. Hall, 62 Iowa, 498, 500, 17 N. W. ^ Beith V. Beith, 76 Iowa, 601, 41 N. Rep. 743 ; Raddock v. Pulsifer, 43 Kaus. W. Rep. 371. 718, 23 I'ac. Rep. 1049. •• B'lrt V. Quisenbcrry, 132 111. 385, 24 * Mackall v. Mackall, 135 U. S. 167, 10 N. E. Rep. 622; Martling r. Martliiifr, Sup. Ct. Rep. 705, per Brewer, J. 100 RELATION OF HUSBAND AND WIFE. [§§ 111, 112. a deed which he had taken with him, already prepared. The father was at the time old and feeble, and died a few days after- wards. It was held that the deed should be set aside.' 111, A voluntary conveyance made by a father to a son, in consideration that the latter will support his father and mother during life, will nut be set aside upon the application of the parents or of the other children, in the absence of proof that undue influence was used to obtain the conveyance.^ If the cir- cumstances surrounding the transaction tend strongly to show that the execution of the deed was the offspring of the grantor's own mind, and was in accordance with an intention and desire lono" expressed, and the testimony in regard to his capacity is conflicting, the validity of the deed will be sustained, especially if there has been an acquiescence of all parties in interest in the act of the grantor for a considerable period. ^ IV. Relation of Husband and Wife. 112. The relation of husband and wife, though confidential, does not of itself warrant a presumption of undue influence. Such a presumption arises only when there is something suspicious in the circumstances, or the nature or magnitude of the gift is such that it ought not to have been made and accepted.* A gift by the wife to the husband has been, however, regarded by the courts with much jealousy, and will not be sustained if evidence of undue influence is shown and the gift was improvident.^ In an action by 1 Davis V. Strange, 86 Va. 793, II S. 51 ; Fiulayson v. Fiulayson, 17 Oreg. 347, E. Rep. 406. 21 Pac. Tlep. .57 ; Kennedy i;. Ten Broeck, 2 Collins u. Collins, 45 N.J. Eq. 813, 18 11 Bush, 241; Scarborough v. Watkins, Atl. Kep. 860 ; Bush v. Johnson (Ky.), 9 B. iMon. 540, 1 Am. Dre. 528 ; Sneathen 12 S. W. Rep. 758; Argo w. Coffin, 142 111. v. Sneathen, 104 Mo. 201, 16 S. W. Rep. 368, 32 N. E. Rep. 679 ; Marshall v. Mar- 497 ; Latham v. Udell, 38 Mich. 2.'58. shall, 75 III. 132. ^ Boyd v. Dc La Montngnie, 73 N. Y. s Adair v. Cook (Ky.), 5 S. W. Rep. 49S, 502 ; Smyley v. Reese, 53 Ala. 89, 25 412. And see Bowen v. Hughes, 5 Wash. Am. Rep. 598 ; McRae v. Battle, 69 N. C. St. 442, 32 Pac. Rep. 98 ; Lynch v. Doran, 98 ; Stiles v. Stiles, 14 Mich. 72 ; Converse 95 Mich. 395,54 N. W. Rep. 882; Falls r. Converse, 9 Rich. Eq. 535; Sharpe v. V. FalLs, 78 Iowa, 756, 42 N. W. Rep. McPike, 62 Mo. 300. Some of these au- 511. tlioritie.s go to the extent of holding that, * Ilndden v. Lamed, 87 Ga. 634, 13 S. in a gift by a wife to her husband, the W. Rep. 806; Shipman v. Furniss, 69 Ala. slightest evidence of influence on the part 555, 564, 44 Am. Rep. 528; Small v. of the hii.sband will invalidate it; and Small, 4 Me. 220 ; Gunthcr v, Giinther, some of them assert a presumption of in- 69 .Md. 560; Golding f. Golding, 82 Ky. validity because of tlu- confidential rela- 101 ^ ii;>.] DISAl'.lLIl Y FROM UNDUK INI'LUP:NCE. a wife to set as'ule a deed of land not her separate property, made by her at the request of her husband, evidence tliat her husband was a man of imperious will and positive convictions, and tlnit his personal influence over his wife was such that his request was equivalent to a command, is no evidence of undue influence.^ In an action by a wife to set aside a conveyance by her to her husband of her lands mivde without consideration, it appeared that, while she was sick and in an enfeebled condition, she was subjected to continued persuasion and urgency by her husband, from which she finally sought relief by executing the conveyance, without time for reflection, or opportunity to take advice from any disinterested person, and the conveynnce was set aside.^ 113. Undue influence will not be inferred from the mere fact of the execution of a voluntary deed in favor of a wife, son, daughter, or other near relative not standing in a position of authority or special influence in regard to the grantor. The fact that an old man conveyed his farm to his second wife, when he had several years previously made a will in which he liad given her only a life interest in it, affords no evidence of undue influence.^ The mere relation of parent and child is not sufficient to tion. These cases are criiiuised in Iladden V. Lamed, 87 Ga. 634, 13 S. E. Tiep. 806, where it was held that such a gift is prima facie valid, and Bleckley, C. J., said: " That, in the jiresent state of the law, a wife is legally competent to malie a gift to her husband, is not questionable. When she exercises this power by a solemn deed of conveyance, would it not conflict with all the analogies of the law to treat tlie deed as prima facie void, and require it to be upheld by extrinsic evidence before any fact whatever tending to impeach it has been adduced ? " 1 Allen V. Drake, 109 Mo. 626, 19 S. W. Rep. 41. In this case the evidence showed that the husband had settled an ample se])arate estate on his wife, anp. principle does not apply ; but I think they 252, 257, by Lord Justice Turner, who are of but little, if any, importance in cases says: "I take it to be a well-established to which the principle is applicable. They principle of this court that persons stand- may afford a sufficient protection in ordi- ing in a confidential relation towards oth- nary cases, but they can afford but little ers cannot entitle themselves to hold ben- protection in cases of influence founded efits which those others may have conferred upon confidence." 104 PRESUMPIION AND PROOF OF UNDUE INFLUENCE. [§ 116. this woman, thus old and ignoniut, know the legal effect of the act she then did ? " ^ But the mere fact that one has made a conveyance for an in- adequate consideration, or even without any, to another standing in a confidential relation to the grantor, without taking inde- pendent advice, does not of itself show that the conveyance was induced b}'^ undue influence or oppression. Such circumstance, however, throws the burden of proving that the conveyance was voluntarily made, with full knowledge of its effect, and without undue influence or undue advantage arising out of the confiden- tial relation, upon the grantee who claims the benefit of the conveyance.^ Where a woman, owning land subject to mortgages made by others, who was unacquainted with business, weak, nervous, and troubled, under the advice of one who was either ignorant or false to her interests, made a deed to the mortgagees conveying the land in payment of the mortgages, which did not amount to half the value of the land, the deed was set aside. Tlie mortgagees were men of affairs and were aided by legal counsel, and the mortgagor was made to believe that the property could not be sold with the mortgages on it. The parties did not deal on equal terms. The woman was misled as to her legal rights, and over-persuaded to convey her property.^ 116. Influence obtained by the use of unlawful or immoral means is undue influence, and no one should be permitted to derive benefit therefrom.^ The exercise of such influence will be 1 Corrigan v. Pironi, 48 N. J. Eq. 607, ^ Carty i;. Connolly, 91 Cal. 15, 27 Pac. 23 Atl. Rep. 355 ; Pironi v. Corrigan, 47 N. Rep. 599. J. Eq. 135, 157, 20 Atl. Rep. 218. Pitney, 3 Tolantl v. Corey, G Utah, 392, 24 Pac. V.-C., in the court of cliancery, said : " It Rep. 190. seems to me that the complainant, labor- * Lcighton v. Orr, 44 Iowa, 679; Hanna ing as bhe did under the combined disad- v. Wilcox, 53 Iowa, 547, N. W. Rep. 717 ; vantages of great age and of dens^e igno- Dean v. Negley, 41 Pa. St. 312, 80 Am. Dec. ranee and inexperience, and dealing with 620; Kessinger r. Kessinger, 37 Ind. 341 ; a person in whom she had the utmost Shipman v. Furniss, 69 Ala. 555, 44 Am. confidence, had especial need of, and wa."? Rep. 528; Bivins v. Jarnigan, 3 Bax. 282 , especially entitled to, and should have had Valentino v. Lunt, 51 Ilun, 544, 3 N. Y. the benefit of, a full, free, and private Supp. 906. preliminary conference with a competent In Shipman u. Furniss, 69 Ala. 555, 565, lawyer or business man who was em- Somerville, J., deduces the following prin- ployed and paid by her, and in whom she ciple as being sound in law and in morals, had confidence, and who would be devoted and sustained by the more modern au- to her interests, and hers onlv " thorities : " When one, living in illicit sex- 105 § 117.] DISABILITY FROM UNDUK INFU'ENCE. prcsuim'cl Avliore the grantor and grantee live in unlawful c<>liabi- tation. In such case, in the absence of proof of a valid consid- eration for the conveyance, the burden is upon the party asserting its validity to show that it was not procured by undue influence.^ As declared by Lord Eldon : ^ " Whenever a person obtains by voluntary donation a large pecuniary benefit from another, the bunlen of proving that the transaction is righteous falls on the j)(>rson taking the benefit." The improvidence of the donation is always a circumstance strongly tending to show fraud or undue inliuence, especially where the donor, in making the gift, ex- cludes natural and legitimate objects of his bounty .^ A deed by a father to an illegitimate child, or to such child's mother, with whom he lives in illegal intercourse though he has a wife and legitimate children, is good if there was no fraud or undue influence, and will be sustained as against the legitimate children. Although a deed made between parties living in illegal sexual relations is open to suspicion of fraud or undue influence, it will be sustained in the absence of evidence that it was pro- cured by either means.* YI. Deed procured hy undue Influence is voidable only. 117. A deed procured by undue influence is voidable and not absolutely void.^ if the grantor desires to avoid the deed, he must act with promptness before the land has increased in value, or valuable improvements have been made by the pur- chaser.^ There may be a ratification of such a deed by the acts and conduct of the grantor in relation to the transaction ; as where nal relations with another, makes a larrje "^ Gibson v. Jeyes, 6 Ves. 206. gljt of his property to the latter, especially ^ Shipman v. Furniss, 69 Ala. 5.").5, 44 in ca;es where the donor excludes natural Am. Rep. 528 ; Staley v. Houeel, 35 Neb. objects of his bounty, the transaction will ICO, 52 N. W. Rep. 888, be viewed with such suspicion by a court of * Conlej' v. Nailor, 118 U. S. 127, 6 equity as to cast on the donee the burden Sup. Ct. Rep. 1001. of proving that the donation was the re- * Shipman v. Furniss, 69 Ala. 555 ; suit of free volition, and was not superin- Burt v. Quisenberry, 132 111. 385, 24 N. E. duced by fraud or undue infiuence." Rep. 622. 1 Coulson V. Allison, 2 De G. F. & J. ^ Dent v. Long, 90 Ala. 172, 7 So. Rep. 521 ; Lf'ightfin v. Orr, 44 Iowa, 679 ; Ilauna 640 ; Burkle v. Levy, 70 Cal. 250, 1 1 Tac. V. Wilcox, 53 Iowa, 547, 5 N. W. Rep. Rep. 643. 717 ; Staley v. Ilou-el, 35 Neb. 160, 52 N. W. Rep. 888. 106 DEED PROCURED BY UNDUE INFLUENCE IS VOIDABLE ONLY. [§ 118. one wlio had made a conveyance to his wife, through undue influ- ence, after her death treated the land as belonging to her children, and asked an attorney if the deed was sufficient to give them title, stating that, if it was not, he wanted to make it so.^ If the grantor received other land in exchange for that con- veyed through undue influence, the transaction is ratified by a sale of a part of the land taken in exchange.^ A deed obtained by undue influence, or alleged to have been so obtained, is validated by the grantor's will referring to and confirming the deed after the alleged influence had been wholly removed.^ 118. A conveyance obtained by the undue injQuence of a third person will not be set aside as against a purchaser for fuU value who had no knowledge or notice that the conveyance was so obtained.'^ Thus, a conveyance by a married woman, exe- cuted through the undue influence of her husband, to a grantee who was not in any way informed of the means by which the deed was procured, cannot be impeached by her because of such undue influence.^ 1 Ellis V. Ellis, 5 Tex. Civ. App. 46, * Dent v. Long, 90 Ala. 172, 7 So. Rep. 23 S. W. Rep. 996. 640; Moog v. Strang, 69 Ala. 98. ■■^ Dent y. Long, 90 Ala. 172, 7 So. Rep. 5 White v. Graves, 107 Mass. .325, 9 €40. Am. Rep. 38; Moses v. Dade, 58 Ala. 3 Burt V. Quisenberry, 132 111. 385, 24 211. N. E. Rep. 622. 107 CHAPTER VII. DISABILITY FROM ADVERSE POSSESSION. I. At common law and by statute, 119- 121. II. What constitutes adverse possession, 122-1.30. III. Ajjplication of the rule, 131-140. I. At Common Law and by Statute. 119. At common law the conveyance of land in the adverse possession of another was void. When livery of seisin was essential to a conveyance of land, it was of course impossible to make livery when the land was in the possession of another.^ In this country livery of seisin, though used as a mode of conveying land in the colonies at a very early period, was never generally adopted, and quite soon gave place to the mode which now prevails, — by deed duly delivered without entry upon the land. There is, therefore, no good reason, founded on livery of seisin, why a person who has any right or interest in lands should not convey this by deed, notwithstanding that another holds adverse possession. But another reason for the common-law rule is found in the policy of the law to prevent the sale of pretended titles whereby litigation is encouraged. If a grantor was out of possession, and another claimed adverse possession, liis deed transferred to his grantee only a right of action. This was prohibited by the statute of Henry Vin.,^ which is said to have been enacted in ^ Dexter v. Nelson, 6 Ala. 68 ; Cassedy danger of the statute, whether he, who so ?•• Jackson, 45 Miss. 397, 402; McMahan iv bargains, sells, or promises, have a good Bowe, 114 Mass. 14, 144, 19 Am. Rep. 321. and true right and title or not; and on 2 32 Henry VIII. ch. 9. This statute this point the statute has not altend the is in affirmance of the older common law. law, for the common law before this stat- The statute was held to applv as against ute was, that he who was out of pos^es- the true owner out of possession. " If he sion might not bargain, grant, or let his whoisoutof possession bargains or sells, or right or title, and if he had done so it makes any covenant or promise to ])art with snould have been void." 1 Plowd. 88, per the land after he shall have obtained the Montague, C. J. By statute 8 & 9 Vict, possession of it, this shall be within the ch. 106, § 6, a right of entry may be di.s- 108 AT COMMON LAW AND BY STATUTE. [§ 119. consequence of the prevalence of the buying of pretended titles after the introduction of uses.^ " Its creation is probably at- tributable more, however, to the exigency attending the tiniu of enactment, and consequent upon sudden revolution, accompanied with a change of title of perhaps a considerable portion of the property of the kingdom. Those thus acquiring power and prop- erty would naturally desire to place every possible barrier in the way of a claim by the former owner, or by one claiming through him. In our country, however, no such reason has existed. Nor under a government like ours, where caste does not exist, and titled name does not in itself confer power, is it necessary to enact a law for the benefit of the weak as against the strong. The reason for its enactment with us is to prevent litigation, and the purchase of doubtful claims by strangers to them. If the owner is not disposed to attempt the enforcement of a doubtful claim, public policy requires that he should not be allowed to transfer it to another party, and thus encourage strife and litiga- tion. It has, therefore, been deemed beneficial to the public in- terest to prohibit it ; and time has manifested that it works no injury to the honest man, while it may, and in fact does, often interfere with the interests of keen-sighted speculators, and pre- vent a practice of purchasing doubtful titles."^ The public policy of this doctrine is declared by Chancellor posed of by deed. " This would appear to sion of right, and stirring up of suits : and amount to a statutory sanction to the trans- therefore nothing in action, entry, or reen- fer of the right to bring an action for tlie try can be granted over ; for so, under col- recovery of every kind of real property in our thereof, pretended titles might be respect of which such a riijht of entry may granted to great men, whereby right might exist. Such a construction of the statute be trodden down and the weak oppressed, would seem to be inconsistent with the which the common law forbiddeth as men continued assertion of illegality iu regard to grant before they be in possession." 2 to the transfer of what have been held Co. Litt. 214 a. to be pretended rights under the statute of According to Blackstone, the rule was Henry VIII., and would go far to render partly at least founded on consideration the latter statute itioperative." Tay)p on of public policy, "lest ineti'iidcd titles Maintenance, p. 49. And see Hunt v. might be granted to great men, whereby Bishop, 8 Excli. G7."> ; Hunt v. Remnant, jn.stice might be trodden down, and the 9 Excli. 6.35. weak oppressed." 2 Bl. Com. 290. And Coke, commenting on the text of Little- see Loud v. Darling, 7 Allen, 20.5,206 ton that no entry can lie reserved to a ' Shortall r. Hinckley, 31 111. 219, 229, stranger upon a feoffment, says: 'Here per Walker, J.; Hall v. Ashby, 9 Ohio, Littleton reciteth one of the maxims of 96. the common law ; and the reason hereof - Ilus.sell ;;. Doyle, 84 Ky. .386,389, 1 S. is, for avoiding of maintenance, snppres- W. Rep. 604, per Holt, .1. lOJ § 120.] DISABILITY KKOM ADVERSK POSSESSION. Ki'iit, who savs : "It seems to be the general sense and usage of iiKinkinil that the transfer of real property should not he valid unless the giantor hath the capacity as well as the intention to deliver possession."^ 120. Statutes removing the disability of adverse posses- sion. — Accordingly it is provided by statute in several of the States that a person claiming title to real property in the adverse possession of another may transfer it with the same effect as if he were in actual possession. "-^ The effect of the statutes remov- ing the disability of an owner of land out of possession is simply 1 -i Kent Com. 448. The reason of statiue is regarded as in a great measure public policy is also declared in Vandiveer obsolete in this State. The courts say V. Stickuey, 75 Ala. 22.5 ; Bernstein v. Humes, 60 Ala. 582 ; Clay v. Wyatt, 6 J. .J. Marsh. 583. - Arkansas : Digest of Stats. 1884, § 644. California: Civ. Code, §§ 1047, 2921. Colorado : G. S. 1883, § 202. Geor- that they are not aware of any case in that State where the provisions of the stat- ute have been enforced. Schaferman v. O'Brien, 38 Md. 565. New Hampshire : The doctrine does not prevail : Whitte- more v. Bean. 6 N. H. 47, 50 ; Hadduck v. gia : Code 1882, § 2695. The common-law Wilmarth, 5 N. H. 181. doctrine foi'merly prevailed. Gresham v. In Ohio, there being no statute against Webb, 29 Ga. 320; King v. Sears, 91 Ga. maintenance, it is held that a valid con- 577, 18 S. E. Rep. 830. Idaho : U. S. 1887, veyance may be made of land in the ad- § 2902. Illinois : R. S. 1889, ch. 30, § 4 ; verse jiossession of another. Hall v. Ashby, Fetrow v. Merriwether, .53 El. 275; Tor- 9 Ohio, 96, 34 Am. Dec. 424; Cressin- reuce?;. Shedd, 112 111. 466. Iowa: 1 An- ger v. Welch, 15 Ohio, 190; Borland u. not. Code & Stats. 1888, § 3103. Kansas: Marshal], 2 Ohio St. 308, 314; Key v. 1 G. S. 1889, 1" 1115, p. 3.54. Maine: R. Vattier, 1 Ohio, 132. S. 1883, ch. 73, § 1 ; Hovcy v. Hobson, 51 In Pennsylvania a conveyance by a per- Me. 62 ; Pratt v. Pierce, 36 Me. 448, 58 son of lands of which he is not in posses- Am. Dec. 758. Michigan : 2 Annot. Stats, sion, but which are held adversely, is legal. 1882, § 5657 ; Crane v. Reeder, 21 Mich. Murray's Estate, 13 Pa. Co. Ct. 70; Humes 24 ; Roberts v. Cooper, 20 How. 467. v. McFarlane, 4 S. & R. 435 ; Storer v. Minnesota: G. S. 1894, § 4165. Missis- Whitman, 6 Biss. 420; Cresson y. Miller, sippi: Annot. Code 1892, § 2433; Cas- sedy V. Jackson, 45 Miss. 397 ; Sessions V. Reynolds, 7 Sm. & M. 130 ; Bledsoe v. Doe, 4 How. 13. Missouri: R. S. 1889, § 2400. Montana: Comp. Stats. 1887, p. 6f.3, § 268. Nevada : G. S. 1885, § 2603. Oregon: G. L. 1892, § 3009. Wisconsin: Annot. Stats. § 2205. Wyoming: R. S. 1887, § 7. In the following named States the stat- ute of 32 Henry VIII. was never adopted, nor was any statute in place of it ever en- acted. Georgia : Webb v. Camp. 26 Ga. 354 ; Cain v. Monroe, 23 Ga. 82 ; Harring V. Hiirwick. 24 (ia.. 59. Maryland: The 2 Watts, 272. In South Carolina, though the statute 32 Hcnrv VIII. ch. 9, prohibiting the sale of pretended titles, was included in the table of English statutes in force in this State, it has always been held that one having title but not possession may make a valid conveyance, and that the common law on this subject was never in force in this State. Poyas v. Wilkins, 12 Rich. 420, 428. Texas : The statute of 32 Henry VIII. was never adopted in this State. Ben- tiiuk V. Franklin, 38 Tex. 458, 473. AT COMMON LAW AKD BY STATUTE. [§ 121. to enable him to invest the gnintee witii all the rights of the owner precisely as he hekl tliem.^ 121. The common-law doctrine has been afifirmed by statute and by judicial decisions in a minority of the States.'^ The strict doctrine wiiich anciently prevailed has been greatly modified. Even in those States in which the doclrine is retained, inasmuch as the reasons for it have in a great measure ceased to exist, the tendency of the later decisions is to modify it so as to make it rea- sonable and just.^ Thus, the deed of a grantor out of possession is not absolutely void, but void only as against the adverse claim- ant in possession. It is good as between the parties, and persons standing in legal privity with them.* Tiie grantee is, moreover, entitled, even as against the person in adverse possession, to an action in the name of the grantor to recover the land ; and if he is able to get possession peaceably without an action, he may hold the land by virtue of his deed.^ 1 Shortall V. Hinckley, 31 111. 219. Henry VIH. as modified by the decisions ^ In several States, by statute, a convey- of the courts, prevails in a few States. ance of land in the possession of a person Alabama : Bernstein v. Plumes, 75 Ala. claiming adverse title is absolutely void as against such person. Connecticut: G. S. 1888, § 2966 ; Ilarral v. Leverty, .50 Conn. 46, 87 Am. Rep. 608. Kentucky : Stats. 1894, § 210; Combs v. McQuinn (Ky.), 9 S. W. Rep. 495 ; Luen v. Wilson, 85 Ky. 503, 3 S. W. Rep. 911 ; Cardwell V. Sprigg, 7 Dana, 36. New York : 4 K. S. 1889, p. 2453; Becker v. Church, 115 N. Y. 562, 2-2 N. E. Rep. 748. North Da- kota: Comp. Stats. 1887, § ;J303. Okla- homa : G. S. 1893, § 6137. South Dakota : Comp. Stats. 1887, §3303. Tennessee: A grant is void if the grantor has not, been 241, 60 Ala. 582; Johnson v. Cook, 73 Ala. 537. Florida : Nelson v. Brush, 22 Fla. 374 ; Doe r. Roe, 13 Fla. 602 ; Gara- hlo V. Hamilton, 31 Fla. 401 ; Levy v. Cox, 22 Fla. 546. Indiana : Webb v. Thomp- son, 23 lud. 428, 432, although there is no statute against champerty and mainte- nance ; German Mut. Ins. Co. v. Grim, 32 Ind. 249. 257 : Patterson r. Nixon, 79 Ind. 251. Massachusetts: Sobier n. Coffin. 101 Mass. 179; Brinley v. Whiting, 5 Pick. 348; Swptt V. Poor, 11 Mass. 553; Wol- cot I'. Kniirht, 6 Mass 424 ; Loud v. Dar- ling, 7 Allen, 205. Rule now changed, in actual possession for one whole year next Acts 1 891 , cli. 354. North Carolina : Jius- before the sale. Champerty is jiresnmed until the purchaser shows the sale was bona fide, if the land is adversclv held under color of title. Code 1884, §§ 2445- 2449 ; Pickens v. Delozier, 2 Humph. 400 ; Hard wick v. Beard, 10 Ileisk. 659. Ver- mont : R. L. 1880, § 1953. "The statute was enacted to carrv out, a principle of the tice ('. Eddings, 75 N- ('. 581 ; lldppiss r. Ei-kridge, 2 Ired. Eq. 54. Ehode Island : Burdick v. Burdick, 14 R. I. 574 ; Hall v. Westcott, 15 R. I. 373, 5 All. Rep. 629. Virginia : Hopkins r. Ward, 6 Mun. 38 ; Allen (;. Smith, 1 Ldgh, 231. " McMaban v. Bowe, 114 Mass. 140; Sparhawk r. Bagg, 16 Gray, 583; Webb common law which forbids the traffic and v. Thompson, 23 Ind 428. speculation in matters of dispute and lit- * Steeple r. Downintr, 60 Ind. 478 ; Pat- igation and this cut up by the roots the tcr.son i\ Nixon, 79 Ind. 251. business of breedin? lawsuits." Stacy r. * Sparhawk v. P>atig, 16 Gray, 583, per Bostwick. 48 Vt. 192. per Redfield, J. Chapman, J. The common-law rule, or the statute of 111 §§ 122-124.] DISABILITY FKOM ADVEHSK POSSl-.SSION, II. What constitutes Adverse Possession. 122. It is not necessary that the title of the disseisor be valid to constitute an adverse possession under the, rule. His titK' may be bad, or his original entry may have been by j)ermis- sit)n of the true owner.^ It is only necessary that he should have color of title, and that this color of title should purport to give him a freehold estate adverse to that of the grantor."'^ He must have title, or eolor of title, as distinguished from a mere claim of title.^ Tiierefore, if the adverse claimant be the mortgagor, or some one holding under him after the mortgage has been fore- closed, his title is extinguished, and he has neither title nor color of title.^ If the person in possession of a mine has no title, but only an executory contract for the purchase of the products of the mine, he is not in possession of it under an adverse title ■which would invalidate the owner's deed. Such person is at best only a licensee, and his license is revoked by the owner's deed.^ 123. But a deed obtained by fraud or forgery will not serve as the foundation of an adverse possession. It is essential that the adverse claimant, in making his entry upon the land, should have acted in good faith in the belief that he had title.*^ He must rely upon his title and have some ground for reliance. A deed is not available for such purpose in case it was executed by an attorney of the grantor without authority, and the want of authority was known to th(i grantee." 124. To render a deed void on account of adverse posses- sion, the adverse claimant must have actual exclusive pos- session under claim of a specific title, and not under a general 1 Barry v. Adams, 3 Allen, 493 ; Hall 186; Crary v. Goodman, 22 N. Y. 170; r. Stevens, 9 Met. 418; Pearce r. Moore, Bowie v. Brahe, 3 Duer, 35; Crooked 114 N. Y. 256, 21 N. E. Rep. 419 ; Thur- Lake Nav. Co. v. Keuka Nav. Co. 37 Hun, man j^ Cameron, 24 Wend. 87. 12; Monnots v. Husson, 39 How. Pr. 2 Smith V. Faulkner, 48 Hun, 186; 447. Crooked Lake Nav. Co. v. The Kenka Nav. * Barley v. Roosa, 20 N. Y. Civ. Proc. Co. 37 Hun, 12. In Selleck v. Starr, 6 Vt. 113, 13 N. Y. Supp. 209. 194, it was held that a claim of an estate " Moore v. Brown, 62 Hun, 618, 16 N. for the life of the grantor is not sufficient Y. Supji. 502. to make the grantor's deed mnAe during ^ Livingston i'. Peru Iron Co. 9 Wend. such possession void. 511 ; Smithwick v. Jordan, 15 Mass. 113; ' Granger I!. Swart, 1 Woolw. 88; Church Moore v. Worley, 24 Ind. 81. V. Schoonmaker, 42 Hun. 225 ; Dawley v. '' Livingston v. Peru Iron Co. 9 Wend. Brown, 79 N. Y. 39'); Fish v. Fish. 39 311. Barb. 513; Smith r. Fiiulkner, 48 Hun, 112 WHAT CONSTITUTES ADVERSE POSSESSION. [§ 125. assertion of ownership. ^ Wiiat the title is must be disclosed, that the court may see that it is adverse to that of tlie grantor in the deed assailed.^ Accordingly, where one occupied a hundred and thirty acres of land, having title to only one hundred acres, but supposed the entire tract so occupied to contain only one hundred acres, his possession of the thirty acres was held not to be adverse so as to render a grant by the true owner void. A mere mistake in location or in quantity without a specific title or claim of such title does not create an adverse possession.^ Possession under a tax deed is possession under a title, or color of title.4 The cases are not, however, in harmony on this point ; for it is held that, instead of an adverse possession under a title or color of title, it is sufficient that it is asserted under a claim of title. It need not be asserted under an honest belief that the claimant has a title or good claim to the land.^ He may even know that his title is defective, as where he is in possession under a parol gift.^ 125. To render a deed void on account of adverse posses- sion at the time of its delivery, the land must be in the actual possession of one claiming adversely.'^ A constructive possession is not enough. But a deed is not void for the reason that, at the time of its delivery, a small part of the land described is not in the actual possession of the grantor, but is held adversely by reason of a disputed boundary line, the greater part of the land being in the grantor's actual possession.^ In other cases construc- 1 Dawley v. Brown, 79 N. Y. 390; v. Davis, 28 Abb. N. C. 135, 19 N. Y. Crary v. Goodman, 22 N. Y. 170 ; Snyder Supp. 191 ; Parks v. Hendricks, 11 Wend. V. Church, 70 Ilun, 428; Sands r. Church, 442; Sherwood v. Waller, 20 Conn. 262; 70 Hun, 483, 24 N. Y. Supp. 251. See Load r. Darling, 7 Allen, 205; Bowling Matter of Department of Parks, 73 N. v. Roark (Ky.), 24 S. W. Rep. 4; John- Y. 5G0; Hi.^Mnbotham v. Stoddard, 72 son v. Hurst (Ky.), 9 S. W. Rep. 828; N. Y. 94 ; Christie i;. Gage, 71 N. Y. 189, Baley v. Deakins, 5 B. Mon. 159 ; Chiles 192. r. Conley, 9 Dana, 385; Norton v. San- 2 Dawley v. Brown, 79 N. Y. 390, per ders, 1 Dana, 14, 17. Rapallo, J. ; Crary r. Goodman, 22 N. Y. 8 Danziger v. Boyd, 120 N. Y. 628; 170. Allen i;. Welch, 18 Hun, 226; Clark v. 3 Crary v. Goodman, 22 N. Y. 170. Davis, 28 Abb. N, C. 1S5, 19 N. Y. * Gatclyr. Weldon (Ky.), 14 S. W. Rep. Supp. 191; Harris v. Oakley, 2 N. Y. 680; Swett v. Poor, 11 Mass. 549. Supp. 305, 7 N. Y. Supp. 232; Cinry v. 6 Vaiuliveer v. Stickney, 75 Ala. 225; Goodman, 22 N. Y. 170; Smith v. Faulk- Bcrnstcin I'. Humes, 71 Ala. 260;Eunk:i ner, 48 Hun, 186. See, however, Lillie Co. y. Edwards, 71 Ala. 248. v. Hickman (Ky.), 25 S. W. Rep. 1062 ; '^ Vandiveer y. Stickney, 75 AIm. 2-25. Smith r. Price (Ky.), 7 S. W. Pep. 918; " Dawley v. Brown, 79 N. Y. 390 ; Clark Mitchell v. Churchman, 4 Humph. 218. vo .. r. 113 §§ 126, 127.] DISAUILITY FHOM ADVKKSK POSSESSION. tive possession of :i part or residue is suflicieiit when tlio part not actually possessed is for use with, or is subservient to, the part that is held in possession, and has some necessary connection therewith.^ Where a deed of land bounds it by the land of an adjoinlnij^ owner, it conveys all the grantor's title up to the true boundary of such adji>ining owner, and is not void as to land belonging to the grantor, but held adversely by such owner at the time of the con- veyance, in consequence of an erroneous location of the division fence.2 While for some purposes the possession of wild and un- cultivated forest lands may be regarded as being in the owner of tlie legal title, without any actual visible occupation by him, such possession is constructive merely, and is no notice of an adverse claim to a purchaser, and no impediment to the delivery of actual possession to him, and is not therefore within the reason of the rule against selling pretended titles.^ The grantor's possession must be something more than a tem- porary occupancy of a portion of the land at the time of the exe- cution of the conveyance, after an adverse possession of the whole by another has commenced.* 126, Whether possession is actually held adversely to the grantor at the time of the sale is a question of fact for the jury .5 And so it is a question for the jury whether one who has been disseised, and has subsequently entered upon the land, has made such a reentry as will enable him to convey his estate by deed.*^ An entry on land by a person disseised, merely for the purpose of seeing if there is any evidence of an adverse occupation, is not, as matter of law, conclusive evidence of an interruption of the disseisor's possession ; but this is a question for the jury, to be determined upon all the evidence in the case.^ 127. If a disseisor abandons his possession, and the grantee rightfully enters and occupies, he takes title under the deed ; and so, if the grantee is in possession when the deed is made, the latter acquires an indefeasible title.^ The owner of land held in adverse 1 Thompson v. Burhans, 79 N. Y. 93. '' Bowen v. Guild, 130 Mass. 121. 2 Sparh.iwk v. Bagg, 16 Gray, 583; 8 guow v. Orleans, 126 Mass. 453; Cleaveland v. Flagg, 4 Gush. 76. McMahan v. Bowe, 114 Mass. 140; Far- 8 Hanna v. Renfro, 32 Miss. 125. num v. Peterson, HI Mass. 148; Oakes v. * Vandiveer v. Stickney, 75 Ala. 225. Marcy, 10 Tick. 195 ; Knox v. Jenks, 7 6 "Whitcsides v. Martin, 7 Yerg. 384. Mas.s. 488. Brickett v. Spoflord, 14 Gray, 514. 114 WHAT CONSTITUTES ADVERSE POSSESSION. [§ 128. possession may make a valid conveyance of the land to the ad- verse holder,^ or to another with the consent of the adverse holder.^ When a trust relation subsists between the grantor and the person in possession, a conveyance by either to the other which merges the legal and equitable estates is not within the prohibi- tion of the common-law doctrine, or a statute founded upon it.^ 128. An entry by the disseisee, and delivery of a deed upon the land, purges the disseisin, and makes the deed effectual to pass all the title originally acquired and held by the grantor at the time of his conveyance.* His peaceable entry restores the possession to the grantor for the time being, so that the technical difficulty of a want of capacity to convey, in one who is disseised, no longer exists. The mere fact that the owner's title is ques- tioned does not prevent his conveying the land if he can deliver the deed upon the land.^ If the grantee of one who was disseised at the time of the con- veyance enters upon the land he is a trespasser, and, having gained possession by his own tortious act, he cannot justify his entry in defence to an action of trespass ; and it has been held that he cannot avail himself of his deed to render his continuance in pos- session lawful.^ But the better rule is, that such grantee who has obtained possession can unite that possession to the title acquired by his deed, and so, by way of estoppel and to prevent circuity of action, defeat a real action brought by the disseisor to recover the land." The same result follows when the disseisor abandons his possession, because the abandonment inures to the benefit of the 1 Famum v. Peterson, 111 Mass. 148; conveyance of the estate and a release of Betsey v. Torrance, 34 Miss. 132; Wil- the right, and completes the title." 2 Hams V. Council, 4 Jones (N. C), 206; Shep. Touch, p. 240. Webb V. Marsh, 22 Can. S. C. 437 ; 2 Mclntire v. Patton, 9 Humph. 447. Schwartz v. Kuhn, 10 Me. 274, 25 Am. 3 Stacy r. Bostwick, 48 Vt. 192. And Dec. 239. see Falls v. Carpenter, 1 Dev. & B. Eq. "It is a maxim in law that every right, 237, 28 Am. Dec. 592. title, or interest in jmp.setdi or infuturo, hy ^ Farwell v. Rogers, 99 Mass. 33, 36 ; the i(nnt act of all them that may claim "Warner v. Bull, 13 Met. 1. any such right, title, or interest, may be ^ Warner v. Bull, 13 Met. I ; Knox v. barred or extinguished, i. p., every estate Jenks, 7 Mass. 488; Oakes v. Marcy, 10 is grantalile or transferable, and every Pick. 195. right is ielea.s;ible; and a conveyance by ® Hathorne r. Haines, 1 Me. 238. the person who has the estate, and the "^ Rawson c. Putnam, 128 Mass. 552. person who has the right, amounts to a 115 §§ 129-131.] DISABILITY FROM ADVERSE POSSESSION. t^ranteo, :uul oivt's him a seisin and a- title valid against a stranger wlio sul>sc(]iiently disseises Iiim.^ The owner may make a valid conveyance of land held in actual possession by another, provided such actual possession is not adverse to the owner. '-^ 129. It is not requisite, under this doctrine, that the pur- chaser or mortgagee should have actual notice of the adverse holding in order to vitiate the grantor's conveyance,^ though knowledge of such adverse possession would be material under a statute imposing a penalty for selling pretended titles.* It has been held, however, that a disseisin which will defeat the operation of the owner's deed must be by occupancy of a part of the land under a deed of conveyance recorded, or such an open and visible occupancy that tlie owner may at once be presumed to know the extent of the disseisor's claim and occu- pation.^ 130. It does not require any length of adverse possession to make a conveyance by a disseised owner void.^ It does not matter that the adverse possession has continued no longer than four months at the time of the convey ance.''' The fact that the land is held adversely at the time is sufficient to render the conveyance void, and it does not matter whether it has been so held for one day or one year. III. Aj)plication of the Rule. 131. An adverse possession must be a possession inconsis- tent with the title of the grantor, and not subordinate thereto. If, on an agreement to sell land, the consideration is paid, and the owner consents that the buyer may enter and hold the land as his own, the entry and possession of the buyer cannot be deemed subordinate to the title of the seller, but as adverse and a disseisin. But the case is difiPerent where the consideration is not paid, and the party contracting to buy enters into possession, inasmuch as 1 McMaluin v. Bowe, 114 Mass. 140. * Jackson v. Demont, 9 Johns. .55 ; Jack- 2 Gamlple v. Hamilton, 31 Fla. 401, 12 son W.Andrews, 7 Wend. 152; Hassen- So. Rep. 229 ; Levy v. Cox, 22 Fla. 546 ; frats v. Kelly, 13 Johns. 466. "Whitcsides v. Martin, 7 Yorg. 384; Bled- ^ Foxcroft v. Barnes, 29 Me. 128. see V. Kofrers, 3 Sneed, 466. ® Kincaid v. Meadows, 3 Head, 188. 8 Vandivccr v. Stickney, 75 Ala. 225 ; "> Sohier v. Coffin, 101 Mass. 179. BernsUiii v. Humes, 71 Ala. 260 ; Jackson V. Demont, 9 Johns. 55. IIG APPLICATION OF THE RULE. [§§ 132, 133. the fair inference then is, that the entry and possession are in sub- ordination to the title of the party contracting to sell, until the stipulated payment is made.^ And so, where the vendor of land retains the title as security for the purchase-money, his possession is presumptively subservient to the equitable ownership of the vendee, and lieiice does not render void a conveyance by the latter to a third person. ^ A deed made to carry into effect a contract for the sale of land is not void, if there was no adverse possession at the time the con- tract was made, although the land was held adversely at the time of the delivery of the deed ; and this rule has been applied even to an executory verbal contract of sale.^ 132. A conveyance by a remainder-man or reversioner dur- ing the continuance of the life estate of a tenant for life is valid, although a grantee of the life tenant is in possession, claiming under a grant purporting to be a grant in fee. " The statute ought not to be construed so as to prevent a reversioner or re- mainder-man making a conveyance of his estate before he be- comes entitled to the possession. But a conveyance after the termination of the particular estate, when the lands are held at the time under claim of an adverse title, is void within the letter and spirit of the statute." ^ A cestui que trust cannot claim to hold adversely to his own trustee, and certainly a trustee cannot hold adversely to his cestui que trust.^ 133. A mortgage is usually regarded as a conveyance within the meaning of the rule against conveying land held in adverse possession.^ Although a mortgage is for most purposes only a lien, it is a conveyance of the legal title in terms, and the mortgagee is regartled as the legal owner as against the mortgagor 1 Brown v. King, 5 Met. 173; Hart v. ^ Harral r. Leverty, 50 Conn 46, 47 Bostwick, 14 Fla. 162, 177; Drew v. Am. Rep. 608; Grecff. Wintersmith, 85 Towle, SON. H. 531 ; Jackson ^^.Tolmson, Kv. 516, 4 S. W. Rep. 232; Thacker v. 5 Cow. 74, 15 Am. Dec. 433 ; .Jackson v. Belcher (Ky.), 11 S. W. Rep. 3 ; Sims v. Spear, 7 Wend. 401 ; Brings i>. Prosser, 14 Cro.ss, 10 Yerg. 460; McCoy v. Williford, Wend. 227 ; Devyr v. Schaefer, 55 N. Y. 2 Swan, 642. 446; In Matter of Department of Parks, * Christie v. Gage, 71 N. Y. 189, 193, 73 N. Y. 5P0 ; Turner r. Thomas, 13 Bush, per Andrew.s, J. 518 ; Paxton i-. Baihy, 17 Ga. 600 ; Wim- ^ Clark v. McLean, 41 Barb. 285. bish V. Montgomery Mut. Asso. 69 Ala. ® Vandiveer c. Stickney, 75 Ala. 225 ; 575. Redman r. Sanders, 2 D:ina. 68 ; Gunny. 2 Ashurst V. Peck, 14 So. Rep. 541. Scovil, 4 Day, 234, 241 . per Reeve, J. 117 § 133.] DISABILITY FKOM ADVERSE TOSbESSION. for the purpose of protectinj^ and onfuning his riglits. The mortgagor is regarded as the leg;il owiu-r as against every other person. In many States, however, even as against the niortgagoV, the mortgage is regarded as giving the mortgagee merely a lien upon the land, with merely equitable rights and remedies. The fee simple of the land mortgaged is in the mortgagor ; and the mortgagee, before entry or foreclosure, has at most a chose in ac- tion, and a right to the possession in order to render the mort- gage available to the payment of his debt. Therefore it is held in Connecticut that a mortgage is not an alienation "for years, life, lives, or forever, or for any other term of time whatsoever," within the terms of the statute for the prevention of maintenance.^ Though the terms of the statute have been changed, and it is now directed against "all conveyances, and leases for any term of lands or tenements," still a mortgage is not regarded as a " convey- ance " within the meaning of the statute. It is apparent that these decisions are based upon the peculiar terms of the statute, and that they are not of general application.^ In case a deed is void for the reason that the land was held adversely to the grantor, a mortgage executed at the same time as a part of the transaction, to secure a part of the purchase- money, is also void.^ In New York it is provided that every person having a just title to lands of which there shall be an adverse possession may execute a mortgage on such lands; and such mortgage, if duly re- corded, shall bind the lands from the time the possession thereof shall be recovered by the mortgagor or his representatives.^ 1 Leonard v. Bosworth, 4 Conu. 421. no part of the object of this statute to al- Hosmer, C. J., remarks that " mortgages low the mortgagee to maintain a suit as are within the mischief at which the stat- such mortgagee to recover possession. His .ute is aimed," but that they "are not mortgage does not bind the land until the within the literal construction of the act." mortgagor recovers possession. Lowbery. - HaiTal y. Leverty, ,50 Conn. 46, 47 Am. Kelly, 17 Abb. Pr. 4,52, 460. The revis- Rep. 608. Loomis, J., said : " Were the ers of the statutes, in a note to 3 R. S. 2d question entirely a new one, we should not ed. (1S36), p. 596, § 185, state that the regard it as free from difficulty. It is purpose of this provision was to allow the manifest that the statute can easily be person whose land is adversely held to evaded under the cover of a mortgage. . . . avail himself of the property to defray the We regard the question, however, as set- expenses of litigation necessary to recover tied by the former deci-sions of our own possession. They therefore allowed him court." to mortgage his lands, though held ad- 8 Pepper v. Ilaight, 20 Barb. 429. versely. ♦ 4 R. S. 1889, p. 2453, § 148. It was 118 APPLICATION OF THE RULE. [§§ 134, 135. 134. If the mortgagor is disseised by a stranger the mort- gagee is also disseised, and, so long as the disseisin continues, neither the mortgagor nor the mortgagee can pass any title by- deed. ^ In accordance with this rule, it is held that a mortgagee who is so disseised cannot make a valid assignment of his mort- gage.2 Other decisions have, however, held that an assignment of a mortgage, when a third person is in possession of the mort- gaged property, is not within the rule. The mortgage is only an incident to the debt, which is the principal subject of the as- signment. It would be manifestly foreign to the purpose of the statute to restrain the transfer of the mortgage debt.^ It is true in general, however, that, if the land is held adversely to both the grantor and the grantee, the rule applies. Thus, where a tenant by the curtesy and the heir are out of possession, and the land is held adversely to both, the tenant by the curtesy can- not convey or release to the heir ; and it will make no difference that the heir is a child of the tenant by the curtesy.* 135. In the cases of mortgagor and mortgagee, landlord and tenant, heir at law and tenant in dower, the possession of the mortgagee, tenant, or tenant in dower is not adverse to the title in fee, but consistent therewith.^ The possession of the mortgagee is no obstacle to a conveyance by the mortgagor of his equity of redemption.^ It is familiar doctrine that the pos- session of the tenant is possession of the landlord.'' The land- lord may make a valid conveyance pending a suit in ejectment by him to oust the tenant.^ The possession of a grantor or mort- gagor is not adverse to that of his own alienee and those claiming under hira.^ The possession of the heir at law, or widow of a grantor or mortgagor, is not adverse to the grantee or mortgagee, or an assignee of the mortgagee. Both the heir and the widow are bound by the estoppel of the grantor or mortgagor, the former as privy in blood, the latter as privy in estate. They continue the 1 Poignand v. Smith, 8 Pick. 272 ; Hunt « Converse v. Seails, 10 Vt. 578, 581, V. Hunt, 14 Pick. 374, 385; Dadmun v. per Ivoyce, J. Lamson, 9 Allen, 85. " Vandiveer t>. Stickney, 75 Ala. 225; 2 Dadmun i\ Lamson, 9 Allen, 85. Whiting v. Edmunds, 94 N. Y. 309. 8 Williams v. I5ennett, 4 Ired. 122 ; Con- « Webb v. Bindon, 21 Wend. 98 ; Camp verae v. Searls, 10 Vt. 578. v. Forrest, 13 Ala. 114. * Vrooman r. Sheithcrd, 14 Barb. 441. » Rowe v. Beckett, 30 Ind. 154; Wil- ^ Chairs v. H'jl)son, 10 Humph. 354; liam's u. Bennett, 4 Ired. 122. Vance v. Johnson, 10 Humph. 214, 221. 119 §§ 136-138.] DISABILITY FliOM ADVF.KSK I'OSSKSSION. estate and possession of the liusbaiul, :>iul cannot set up an estate in themselves, or in any otlier person, as against the hus- baml's grantee or mortgngee.^ 136. The possession of a tenant in common of lands, wlio has ousted his co-tenant anil holds adversely to him, does not impair a conveyance by the hitter. The possession of one tenant in ciimnion is constructively the possession of all. A purchaser from one tenant in common may assume that the possession of a co-tenant is the possession of all, and for the benefit of all, what- ever the real facts may be as to the possession.^ The rule does not apply in case of a conveyance by one tenant in common to his co-tenant of his undivided interest in the land which is held adversely. In such a case no stranger to the title is introduced, but merely one who is already interested, who may sue for the recovery of the property with an increased interest.^ But the case is quite different where all the tenants in common of a parcel of land except one sold the whole land, including the interest of such one, who did not join, to a stranger to the title, and the latter entered upon the land in his own right, and was holding the actual adverse possession of the whole parcel, when the ten- ant in common, who did not join in the conveyance, sold and con- veyed his interest to another stranger ; it was held that the deed of such tenant in common was void.'* 137. One in possession of land under a conveyance from an infant does not hold adversely within the meaning of the rule. The inTant, upon arriving at full age, may disaffirm his deed made during his minority by merely making another conveyance of the same land to a tliiixl person. A purchaser from an infant takes his deed w^ith knowdedge that the infant seller had the right to disaffirm his deed upon attaining his majority, and he therefore is regarded as holding the land in the interim, not adversely, but subject to the right of the infant seller to disffiaim.^ 138. This doctrine has no application to judicial or official sales, or convevances made by public officers or agents in the line of their oflficial duty. Such sales and cimveyances :ire valitl 1 Williams v. Bennett, 4 Ired. 122 ; Mix- Kep. 604 ; Adkius v. Wlialin, 87 Ky. 153, terv. Woodcock, 154 Mass. 535, 28 N. E. 7 S. W. Kep. 912. Rep. 907. < Adkiiis i\ Whalin, 87 Ky. 153, 7 S. 2 Paiier.son r. Nixon, 79 lud. 251. W. Kep. 912. 2 Russell V. Doyle, 84 Ky. 380, 1 S. W. s .Moore v. Baker, 92 Ky. 518, 18 S. W. Rep. 3G3. 120 APPLICATION OF THE RULE. [§ 138. althmigh there was an adverse possession at the time of the decree and sale.^ Moreover, the possession of tlie debtor whose hind is seized upon execution, or of any one claiming under him, is not deemed to be adverse to the purchaser under the execution sale, but he may transmit to his vendee whatever estate was acquired by the pur- chase.2 Nor is the possession of an officer under a writ of attach- ment such an adverse possession as to avoid a conveyance made by the owner of the land affected. ^ This limitation is fully stated by the Supreme Court of Ver- mont : * '^ Where the conveyance is by operation of law, as by levy of execution,^ or by an officer of the State or the United States,^ or where a trust estate is conveyed to the uses for which it was originally created," or where a conveyance is made by a trustee to his cestui que trust, as in the case of an administrator holding the title for the benefit of the heirs, and where a court of chancery would compel a conveyance,^ the conveyance has not been consid- ei'ed as falling within the spirit, import, or operation of the stat- ute, or as being within the mischief sought to be remedied by it, notwithstanding there was, at the time of the execution of the conveyance, an adverse possession by a stranger of the real estate conveyed. A conveyance by an administrator under the order of the probate court, or by an assignee in bankruptcy, or by a col- lector on the sale of land for taxes, would fall within the same rules of decision." Sales by assignees or trustees under bankrupt or insolvent laws are in the nature of judicial sales, and are not open to objection because the land is adversely held at the time.^ 1 Tuttle V. Jackson, 6 Weud. 213 ; Webb son, 23 lud. 428, 432 ; Foust v. Moornnan, r. Tliompson, 23 lud. 428 ; McGlll y. Doe, 2 Ind. 17; Mitchell u. Lipe, 8 Yerg. 179, 9 Ind. 306 ; Viuinoy v. Ble>siug, 36 Ind. 29 Am. Dec. 116; Snowden v. McKiuney, 349; raiteison v. Nixon, 79 lud. 251; 7 B. Mon. 258. Hauna c Ucnfro, 32 Mi^s. 125; Arnold ^ Winstandley y. Stipp, 132 Ind. 548, 32 u. Stephens (Ky.), 17 S. W. Rep. 859; N. E. Rep. 302. Preston V. Bn ckiuridge, 86 Ky. 619, 6 S. < Wliite v. Fuller, 38 Vt. 193, 203, per W. Rep. 641 ; Frizzles. Veach, 1 Dana, Kellogg, J. 211 ; Violett y. Violett, 2 Dana, 323; Little ^ pj^rnsworth v. Converse, 1 D. Chip. V. Bishop, 9 B. Mon. 240 ; Batterton v. 139. Chiles, 12 B. Mon 348; Sims ;.•. Cross, 10 '^ Aldis v. Burdick, 8 Vt. 21. Yerg. 400; Mitchell v. Lipe, 8 Ycrg. 179; ' Mitcliell v. Stevens, 1 Aik. 16. Jarrett v. Tondinsnn, 3 Watts & S. 114. » Appleton v. Edson, 8 Vt. 239. 2 Jackson w. Collins, 3 Cow. 89 ; Cook ^ Iloyt v. Thompson, 5 N. Y. 320; V. Traxis, 20 N. Y. 400; Webb v. Thonip- Smith i: Scholtz, 68 N. Y. 41. 121 §§ 130, 140.] DISABILITY FHOM ADVERSE POSSESSION. Deeds of executors, julministrators, nnd i;iianli:ins o-iven in ex- roulion of tlicir trusts are valid notwitlistandiiiu,- tln^ jiossession of adverse claimants.^ But a sale and conveyance of land in the adverse possession of a third person, made by commissioners under an order of court in a suit for partition, to which the person holding adverse pos- session was not a party, is void.^ The fact that a religious corporation, having only a limited capacity to convey, makes a conveyance in pursuance of an order of court obtained on its application, does not make the transac- tion a judicial sale, so as to take it out of the operation of the statute.^ A grant of land by a State will pass the title notwithstanding the land is held in adverse possession, for the State cannot be disseised.* 139. It seems to have been uncertain whether the doctrine of adverse possession has any application to wills. In Mas- sachusetts, in early cases, it was held that a devise of land of which the devisor was disseised was void.^ But it was afterwards provided by statute that land of which the devisor is disseised, and to which he had only a right of entry, shall pass to the de- visee in like manner as it would have descended to the testa- tor's heirs if he had died intestate.^ In Kentucky the statute against the conveyance of pretended titles was held to have no application to wills.'^ 140. A deed by a person disseised is valid as to the grantor and his heirs, and as against every one but the disseisor and his privies in estate.^ It entitles the grantee to maintain an action to recover the land in the name of the grantor, but to his own use, 1 Barney V. Cuttler, 1 Root, 489. 8 McMahan v. Bowe, 114 Mass. 140; 2 Jackson v. Vrooinan, 13 Johns. 488 ; Brinley v. Whiting, .5 Pick. 348; Wil- Martin v. Pace, 6 Blackf. 99. Hams v. Jackson, 5 Johns. 489 ; Van Hoe- 3 Christie r. Gage, 71 N. Y. 189. sen v. Benham, 15 Wend. 164 ; Livingston * Ward V. Bartholomew, 6 Pick. 409 ; v. Proseus, 2 Hill, b2&; University of Ver- People V. Mayor of New York, 28 Barb, mont v. Joslyn, 21 Vt. 52 ; Park v. Pratt, 240; Jackson v. Giimaer, 2 Cow. 552; 38 Vt. 545; Johnson v. Cook, 73 Ala. Allen V. Hoyt, Kirby (Conn.), 221. 537, 541 ; Betsey v. Torrance, 34 Miss. 5 Poori;. Bobinson, lOMass. 131 ; Ward 132; Patterson v. Nixon, 79 Ind. 251; V. Fuller, 15 Pick. 185. Hall v. Westcott, 15 R. I. 373, 5 Atl. 6 R. S. 1882, ch. 127, § 26; Brown v. Rep. 629; Stockton v. Williams, 1 Doug. Wells, 12 Met. 501, 503. (Mich.) 546; Webb v. Marsh, 22 Can. S. ' May V. Slaughter, 3 A. K. Mar.sh. C. 437. 505, 507. 122 APPLICATIuN OF THE RULE. [§ 140. even against the disseisor.^ For this purpose the title remains in the legul grantor, wliile the equitable title is in the giantee, and this title will be protected against any interference on the part of the grantor.2 The grantor cannot be heard to allege against his own deed that at the time of its execution the land was adversely held by another.^ 1 McMahan v. Bowe, 114 Mass. 140; Snow V. Orleans, 126 Mass. 453, 457 ; Far- num V. Peterson, 111 Mass. 148; Wade v. Lindsey, 6 Met. 407, 414 ; Sparhawk v. Bagg, 16 Gray, 583 ; Cleaveland v. Flagg, 4 Gush. 76 ; Brinley v. Whiting, 5 Pick. 348 ; University of Vermont v. Joslyn, 21 Vt. 52; Edwards v. Roys, 18 Vt. 473; Parkr. Pratt, 38 Vt. 545, 553; Key v. Snow, 90 Tenn. 663, 671, 18 S. W. Rep. 251 ; Steeple v. Downing, 60 Ind. 478,484; Pearce v. Moore, 114 N. Y. 256, 21 N. E. Rep. 419; Livingston v. Prose us, 2 Hill, 526 ; Van Voorhis v. Kelly, 31 Hun, 293; Nelson v. Brush, 22 Fla. 374; Betsey v. Torrance, 34 Miss. 132, 138; Wilson v. Nance, 11 Humph. 189 ; Fowler v. Nixon, 7 Heisk. 719, 729; Justice v. Eddings, 75 N. G. 581. '•^ Edwards v. Parkhurst, 21 Vt. 472; Park V. Pratt, 38 Vt. 545, 553. 8 Kuffin V. Johnson, 5 Heisk. 604. 123 CHAPTER VIII. CAPACITY OF COKPOKATIONS AS VENDOKS. L Power to sell and convey, 141-143. | II. rower to mortgage, 144-153. I. Power to Sell and Convey. 141. Every private corporation having no public functions has the absolute right to dispose of its property in the same maiiner that an individual has. It may convey its real property acting by a majority of its stockholders; and this right is not limited as to objects, circumstances, or quantity, unless restrained by statute or by public policy .^ It may dispose of all its property and close its business.^ It may dispose of any interest in its property. Having an estate in fee, it can grant a lesser inter- est, such as an estate for life or for years. To carry out the specific purposes for which the corporation was created, it may deal with its property and convey it as an individual might,^ 142. The power of a corporation to alienate its property depends very much upon its character, whether it is public, quasi-public, or strictly private. Thus, public municipal corpora- tions cannot alienate property of a public nature, such, for in- stance, as a public square or street, in violation of the trusts, ex- press or implied, upon which it is held, except under legislative authority.^ The}^ may, however, thspose of their lands which are of a private nature, unless restrained by charter or by statute. 1 Tread well v. Salisbury Manuf. Co. 7 Vallette, 21 How. 414, 425, per Camp- Gray, 39.3, 66 Am. Dec. 490 , Sar^^ent v. bell. Webster, 13 Met. 497; Burton's App. 57 ^ Treadwell v. Salisbury Manuf. Co. 7 Pa. St. 213; Walker v. Vincent, 19 Pa. St. Gray, 393, 66 Am. Dec. 490; Dupee v. 369; Hodges t\ New England Screw Co. Boston Water Power Co. 114 Mass. 37; 1 R.I. 312, 347; Pierce v. Emery, 32 N. Miners' Ditch Co. v. Zellerbach, 37 Cal. H. 486, .'J03 ; Keichwald v. Commercial 543. Hotel Co. 106 111. 439, 5 Am. & Eng. Corp. ^ Barry v. Merchant Exch. Co. 1 Sandf. Cas. 248 ; Reynolds r. Stark Co. 5 Ohio, Ch. 280. ^04, 205 ; Binney's Case, 2 Bland Ch. 99, * Dillon's Municipal Corp. § 575. 142; White Water Val. Canal Co. v. 124 POWER TO SELL AND CONVEY. [§ 142. A corporation may be technically private, and yet, by reason of having by legislative authority the right of eminent domain, may have a quasi-public character, and be subject to a like obligation with a public municipal corporation to hold and use its property, acquired by public authority, as a trust, to a certain extent, for the public. Such a corporation caii sell and convey its lands so acquired, which are essential to the carrying out of the purposes for which the corporation was created, only by legislative author- ity. A charitable or religious corporation may be under an obli- gation to discharge its corporate duties, and may be compelled to appropriate its property to the specific uses for which it was allowed by its charter or by statute to acquire it. But a cor- poration of a strictly private character, one which has derived nothing from the government except its charter, and has no public function, but whose sole object is to promote the private interests of its stockholdeis, has the same power as a natural person to convey its lands as its interests may demand. The public may have an interest in the continued existence of a private corporation, though it has not strictly any public func- tions. Thus a corporation organized for the purpose of owning ditches and selling water is a strictly private corporation, and may at its own discretion sell and convey any part or all of its property.^ The public have no right to say that a private corpo- ration shall not dispose of its property, however convenient or desirable it may be that it shall continue to exercise its corporate functions, miless the corporation has acquired its property through the sovereign authority of the State. But a railroad company is a quasi-public corporation, and is not allowed to divest itself of its right of way, and land necessary for the exercise of its franchise, without legislative permission.^ 1 Miner's Ditch Co v. Zellerhncli, 37 1 McCrary, 541 ; Richards ;•. Merrimack, Cal. 543, 99 Am. Dec. 300. &c. R. 44 N. H. 127 ; Tread well v. Salis- 2 Gardner v. London, C. & D. Ry. Co. bury Manuf. Co. 7 Gray, 393, 66 Am. L. R. 2 Ch. App. 201 ; Myatt v. St. Hel- Dec. 490 ; Middlesex, &c. R. Co. v. Bos- en's, &c. Ry. Co. 2 Q. B. 364; Beman v. ton, &c. R. Co. 115 Mas.s. 347 ; Sinji^lcton Rufford, 1 Sim. N. S. 5.50; Hart i-. East- v. Southwestern R. 70 Ga. 464, 48 Am. cm Union Ry. Co. 7 Ex.246; Penn Co. Rep. 574; Hays v. Ottawa, &c. R. Co. );. St. Louis, &c. R. Co. 118 U.S. 290; 61 III. 422; State y. Consolidation Coal Thomas v. Railroad Co. 101 V. S. 71 ; Co. 46 Md. 1 ; Tippecanoe Co. v. Lafay- Branch v. Jesup, 106 U. S. 468; York, ctte, &c. R. Co. 50 lud. 85 ; McAllister v. &c. R. Co. y. Winans, 17 How. .30 ; Atlan- I'lant, 54 Mias. 106, 119 ; Arthur r. Corn- tic & Pac. Tel. Co. v. Union Pac. R. Co. mercial & R. Bank, 9 S. & M. 394, 431, 48 125 §§ 143, 141.] CAPACITY OK COKl'UKATIONS AS VENDORS. To jiormit siu-h ;i transfer of its property is contrary to public policy. It wonld necessarily disable the corporation from per- forniini;" its duty to the public.^ 143. A foreign corporation authorized to hold real estate may convey or mortgage it according to the form in use in the State where the land is situated. The law of the place where the land is situated governs as to the mode of transfer, but the authority to make the transfer is derived from the State cre- ating the corporation.^ A foreign corporation may make a valid assignment of its propei'ty for the benefit of its creditors, although it has not complied with the constitution and laws of the State in relation to transacting business and owning and disposing of property within such State.^ The acts of such a corporation are not void, and cannot be questioned and determined collaterally. As re- gards any usurpation of power by such a corporation, it rests with the State in a direct proceeding to prevent it from exercis- ing its franchises within the State until it has fidly complied with its constitution and laws. II. Power to Mortgage. 144. Ordinary private corporations having no public func- tions may mortgage their real property for the purpose of securing their legitimate debts, or to secure loans obtained for transacting their legitimate business.* This power is incidental, Am. Dec. 719; Tray, &c. R. Co. v. Kerr, * Bank of Australasia v. Breillat, 6 17 Barb. .581; Black i;. Del. & R. Canal Moore P. C. 152; In re General Prov. Co. 22 N. J. Eq. 130, 399, 24 N. J. Eq. Ass. Co. L. R. 14 Eq. 507 ; In re General 455 ; Stewart's App. 56 Pa. St. 413 ; Rus- So. Am. Co. L. R. 2 Ch. D. 337 ; In re sell V. Texas & P. Ry. Co. 68 Tex. 646, Patent File Co. L. R. 6 Ch. App. 83, 88 ; 5 S. W. Rep. 686 ; Gulf, &c. Ry. Co. v. Nelson v. Eaton, 26 N. Y. 410 ; Barnes v. Morris, 67 Tex. 692, 4 S. W. Rep. 156; Ontario Bank, 19 N. Y. 152; Curtis v. Naglee v. Alexandria & T. Ry. Co. 83 Va. Leavitt, 15 N. Y. 9 ; Partridge v. Badger, 707, 3 S. E. Rep. 369. 25 Barb. 146 ; Jackson v. Brown, 5 1 Pierce v. Emery, 32 N H. 486, 504 ; Wend. 590 ; Barry v. Merchants' Exch. Richards v. Merrimack & C. R. 44 N. H. Co. 1 Sandf. Ch. 280 ; Hackensack Water 127, 136. Co. V. De Kay, 36 N. J. Eq. 548 ; Gordon 2 Saltmarsh v. Spaulding, 147 Mass. v. Preston, 1 Watts, 385, 26 Am. Rep. 224, 20 Am. & Eng. Corp. Cas. 514, 17 N. 75 ; Watt's App. 78 Pa. St. 370 ; Detroit E. Rep. 316. V. Mut. Gas Light Co. 43 Mich. 594, 5 3 Wright V. Lee, 2 S. Dak. 596, 51 N. N. W. Rep. 1039 ; Thompson v. Lambert, W. Rep. 706, and on rehearing, 55 N. W. 44 Iowa. 239 ; Keichwald v. Commercial Rep. 931. Hotel Co. 106 111. 439, 5 Am. & Eng. 126 POWER TO MUKTGAGE. [§ 145. and need not be expressl}' conferred. Corporations not expressly or impliedly restrained by the nature of their undertaking may borrow money to carry out the legitimate objects of their incor- poration, and secure the payment of it by a mortgage of their property.^ Thus, for instance, a cor})oration organized for the purpose of manufacturing and supplying gas to the inhabitants of a city or village is under no restriction in this respect arising by implication from the nature of the business it was created to engage in.^ This restriction upon the right of a corporation to alienate its property arises, not from the fact that it subserves a public use and is beneficial, or, it may be, necessary to the gen- eral public, but it applies only when the State, in view of the public purpose of a coi-poration, has conferred upon it special privileges, of which the right of eminent domain is generally the most important. In many States, express authority to mortgage is given by statute, though in some States this authority is coupled with re- strictions. Foreign corporations in some States are not permitted to mortgage to the exclusion or injury of citizens of the State. 145. A corporation created for a public purpose cannot mortgage its land, acquired by the exercise of the right of eminent domain, without legislative authority. Inasmuch as every mortgage may in the end result in an absolute transfer of the mortgaged property, it follows that such a corporation cannot without special authority mortgage its property and give to the mortgagee, upon default, the right to exercise its public duties and functions, or the power to sell and convey these privileges to another.^ A mortgage made by such a corporation of all its Corp. Cas. 248 ; Wood v. Wlielen, 93 111. ^ Jones' Corp. Bonds and Mortjrages, 153 ; West v. MadL^on Co. Ag. Hoard, 82 §§ 1-26 ; Carpenter v. Black Hawk G. M 111. 205 ; Aurora Ag. Soc. v. Paddock, 80 Co. 65 N. Y. 43, 50 ; Pullan v. Cincinnati, 111. 263 ; Bradley v. Ballard, 55 111. 413 ; &c. R. Co. 4 Biss. 35 ; Susquehanna Canal 7 Am. Rep. 656; Rockwell v. Elkhorn Co. i;. Bonham, 9 W. & S. 27, 42 Am. Dec. Bank, 13 Wis. 653; Burt v. Rattle, 31 315; Pierce y. Emery, 32 N. H. 484 ; Ar- Ohio St. 116; Larwell y. Hanover Sav. thur y. Commercial & R. Bank, 9 S. & M. Fund Soc. 40 Ohio St. 274, 282; Leh- 394,48 Am. Dec. 719; Atkin.son v. Ma- man V. Tallassee Manuf. Co. 64 Ala. 567. rictta, &c. R. Co. 15 Ohio St. 21 ; Stewart 1 Curtis V. Leavitt, 15 N. Y. 9 ; Straus v. Jones, 40 Mo. 140 ; New Orleans, &c. V. Eagle Ins. Co. 5 Ohio St. 59; Monu- i;. Co. v. Harris. 27 Miss. 517; Hall v. ment National Bank v. Globe Works, 101 Sullivan R. Co. 21 Law Rep. 138; Dan- Mass. 57, 3 Am. Rep. 322. iels v. Hart, 118 Mass. 543 ; Wood v. Bed- 2 Hays V. Galion Gas, &c. Co. 29 Ohio ford, &c. R. Co. 8 Phila. 94 ; State v. St. 330. Mexican Gulf Ry. Co. 3 Rob. (La.) 513; !27 §>; 140, 147. J OAPACIIY OF CORI'OKATIONS AS VENDORS. })io|)LMty, witliout ilistiiK't legislutive uiitliority, is wliolly void and iiioperutivf, beeiiuse it is in violiitioii of the piiUlic jiolic}^ of the Stiite.i 146. Land of a railroad company not acquired under the delegated right of eminent domain, or so connected with tlie fijUK'hise to operate and manage a railroad that the alienation would tend to disable the cor|)oration from performing the public duties imposed upon it, and in consideration of which its chartered privileges had been conferred, may be convey(>d or mortgaged by the company without special authority, under the general right of corporations at common law to dispose of whatever property they have power to acquire.- If the company should include in one deed or mortgage both real estate not connected with its fran- chises and real estate essential to the exercise and enjoyment of its franchises, as for instance a portion of its roadway, the con- veyance might be upheld as to the former, and treated as inop- erative and void as to the latter. The ordinary rule is applied that, if the part of the subject of the conveyance which is valid can be separated from that which is void, the conveyance will be carried into effect so far as it can be. As to property not ac- quired for the purposes of the road, the corporation stands in the relation of an ordinary trading corporation which has no public obligations. 147. A power to sell generally includes a power to mort- gage.'^ Thus a charter conferring the right " to acquire, aliene, transfer, and dispose of property of every kind," confers the power to mortgage it. But this is affirmed of the property of the com- pany as distinguished from its franchises.* The power to mort- gage would, however, generally include the franchises necessary to use and enjoy the property, as distinguished from the franchise Commonwealth v. Smith, 10 Allen, 448, Piatt v. Union Pac. R. Co. 99 U. S. 48, 87 Am. Dec. 672. And see East Boston, 58 ; Branch v. Jesup, 106 U. S. 468, &c. R. Co. i;. Eastern, &c. R. Co. 13 Allen, 478, 1 S. Ct. Rep. 495; Farnsworth v. 422; Richardson v. Sibley, 11 Allen, 65, Minn. &c. R. Co. 92 U. S. 49; Tucker v. 87 Am. Dec. 700. Ferf,'Uson, 22 Wall. 527, 572. This doctrine is substantially denied in ■* VViiiamette Manuf. Co. v. Bank of Maine. Shepley v. Atlantic, &c. Co. 55 British Columbia, 119 U. S. 191, 7 S. Ct. Me. 395; Kennebec, &c. R. Co. y. Port- Rep. 187. land, &c. Co. 59 Me. 9, 23. * McAllister v. Plant, 54 Miss. 106; 1 Richardson v. Sibley, 11 Allen, 65, 87 Branch v. Atlantic, &c. R. Co. 3 Woods, Am. Dec. 700. 481. 2 Hendee i;. Pinkerton, 14 Allen, 381 ; 128 POWER TO MORTGAGE. [§§ 148, 149. to be a corporation.^ The words "dispose of" used in the act incorpi>r;iting the Union Pacific Raih-oad Compan}', in reference to lands granted to the company, are apt words to indicate a trans- fer by mortgage. They contemphite a use of the lands granted ilifferent from the sale of theai.^ 148. A corporation may have authority to mortgage its property, but no authority to mortgage its franchises. Legis- lative authority to mortgage may apply to the pi'operty of a cor- jjoration and not to its franchises. If a corporation, having power by its charter to pledge its real estate or its property and profits, executes a mortgage covering not only these, but also its fran- chises to be a corporation, such mortgage is not for that reason entirely vf)id, but it operates to convey the property of the com- pany,^ while it is ineffectual to transfer its franchises.^ Under a statute providing that corporations fur manufacturing, mining, mechanical, or chemical purposes shall not mortgage any pro{ierty except real estate, and shall not do this except to secure the pay- ment of debts, a mortgage by such corporation to secure bonds is valid so far as the bonds are used for the payment of its debts, even though invalid so far as the bonds are used to raise money to carry on its operations.^ It is doubtless true that the bonds not used for this purpose would be valid in the hands of bona fide holders, and that as against such holders the compan}'^ would be estopped from claiming the invalidity of the mortgage.^ 149. Under a power to mortgage expressly conferred, it is suflacient that the scope and purpose of the power are sub- stantially met. Under authority conferred to mortgage for the purposes of the business of the corporation, a mortgage may be made to secure future advances." Under a statute authorizing any railroad corporation to borrow money " for completing, fur- nishing, and operating its road," and to issue bonds therefor, secured by a mortgage of its property and franchise, a mortgage wliich appeared upon its face to be " made to consolidate its 1 Branch v. Atlantic, &c. R. Co. 3 65 N. Y. 43 ; Central G. Min. Co. v. Piatt, Woods, 481 ; Wayne v. Myddleton, 2 3 Daly, 263. Kelly (Ga.), 383. 6 Carpenter v. Black Hawk G. Min. Co. 2 riatt V. Union, &c. U. Co. 99 U. S. &f> N. Y. 43. 48. c Dimpfel v. Ohio & M. Ry. Co. 9 Biss. •'' Randolph v. W. &c. R. Co. 11 Phila. 127. 502. " Jones v. Guaranty & Indemnity Co. * Carpenter v. Black Hawk G. Min. Co. 101 U. S. 622. VOL. I. 129 § 150.] cArACiTY OF cur.roi;ATU)NS as vkndors. fiimK'il ili'bt, obtain the nionoy and material iiecessar}' for per- fecting its line of railway, enlarging its capacities, and extending tlie facilities thereof,'' is within the scope of the powers conferred. Without other proof of the object of the mortgage, no suit to restrain the making of it, or the issuing of bonds under it, can be maintained by a common stockholder, or by a preferred stock- holder, of the corporation. For aught that appears in the case, the funded debt and other debts may have been incurred in con- structing and operating the road, and the excess of money sought to be obtained by such bonds may be necessary further to complete and operate the same.^ But authority to mortgage for the purpose of constructing a raih'oad confers no right to secure by mortgage the debt of another. A railroad company having authority to borrow such sums of money as might be expedient for completing, maintain- ing, and working the railway, and to make bonds, debentures, or other securities, and sell the same, and to hypothecate, mortgage, or pledge the hinds, tolls, revenues, and other property of the company, for the due payment of such sums and the interest thereon,^ cannot make a mortgage for any purpose not embraced in the terms of the act, and therefore cannot make a mortgage to secure a debt which is not a debt of the company. When the express purpose for which a mortgage is authorized to be given is the repayment of a loan of money for the completion or mainte- nance of the road, a mortgage to secure the debt of another, though it may be for the benefit of the company to make it, is ultra vires and void.^ Under an authority given by charter or by statute to borrow money, a corporation has no right to raise money by the issue of irredeemable bonds entitling the holder merely to a share of the earnings after the payment of certain dividends to the stockhold- ers. Money so obtained could not be regarded as borrowed, be- cause that term implies reimbursement.^ 150. An express authority to mortgage for certain pur- poses does not necessarily negative or qualify a general authority to borrow and mortgage for other purposes, for 1 Thompson v. Erie Ry. Co. 42 How. " Grand Junction Ry. Co. v. Bickford, Pr. 68, 11 Abb. Pr. (N. S.) 188. 23 Grant's Ch. (Ont.) 302. 2 Railway Act of Ontario, § 9, sub-sec. * Taylor v. Phila. &c. R. Co. 7 Fed 1 1 . Rep. 386. 130 l^OWLR TO MORTGAGE. [§ 161. which the implied powers of a corporation are usually sufficient.^ But an express power to mortgage would seem to negative an im- plied power for the same purpose. If there is an express power to mortgage for a certain amount, there can be no implied power beyond this amount.^ Under authority given to a corporation to mortgage its real and personal property to secure the payment of any debt contracted by it in the business for which it was incor- porated, a mortgage may be given to secure a debt contracted simultaneously with the giving of the security, if incurred for the prosecution of the legitimate business of the company.^ A mort- gage may be given also to secure bonds issued and delivered to creditors of the company, or sold to raise money to pay them, or to raise money for its legitimate business purposes.*^ 151. If a corporation makes a sale or mortgage "which is ultra vires, it cannot avail itself of the illegality of the trans- action to defeat the conveyance.^ An executed transaction must be allowed to stand against the corporation when the rules of good faith require it.^ Although a transfer of the property of a corporation may have been ultra vires, the corporation cannot upon its own motion, without due process of law and a return of the consideration received, take possession of the property. A court of equity will restrain it by injunction.'^ A mortgage made by a corporation whose articles of incorpo- ration provide " that it shall be competent to mortgage the pi'op- erty of the company to the amount of not exceeding one half of the capital stock actually paid in," is not ultra vires and invalid though given for a greater amount.^ "■ The general rule is, that the plea of ultra vires shall not prevail when, instead of advancing justice, it would accomplish a wrong ; and it makes no difference, in this respect, whether it is interposed for or against a corpo- ration." '•* 1 Allen V. Mout;,'omery R. Co. 1 1 Ala. ^ Miners' Ditch Co. v. Zellerbach, 37 437; Mobile, &c. R. Co. v. Talman, 15 Cal. 543, 99 Am. Dec. 300. Ala. 472 ; Phillips i-. Wiuslow, 18 B. Mon. « Parish v. Wheeler, 22 N. Y. 494. 431, 68 Am. Dec. 729. ' Atlantic & Pac. Tel. Co. v. Union 2 Brice, Ultra Vires, 2d Eng. ed. 273. Pac. Ry. Co. 1 McCrary, 541. « Lord V. Yonkers Fuel Gas Co. 99 N. ^ Warfield v. Marshall Canning Co. 72 Y. 547. Iowa, 666, 34 N. W. Rep. 467, 19 Am. & * Carpenter v. Black Hawk Min. Co. 65 Eng. Corp. Cas. 194, 2 Am. St. Rep. 263; N. Y. 43; Lord v. Yonkers Fuel Gas Co. Garrett v. Burlinstou Plow Co. 70 Iowa, 99 N. Y. 547. And see Jones v. Guaranty 697, 29 N. W. Rep. 395, 59 Am. Rep. 461. and Indemnity Co. 101 U. S. 622. » Darst v. Gale, 83 111 136, 140 ; Alexan- §§ 152, 153.] CAPACITY OF CORrORATIONS AS VENDORS. It' a corporation is restricted to borrowing a limited amount upon mortgage of its lands, the I'estriction is strict!}^ enforced by the English courts, and a mortgage by such corporation for a greater amount is good for only the amount named. There is in such case an implied restriction against mortgaging the land for more than the sum mimed in the statute or the act of incorpora- tion.' A mortgage beyond the borrowing powers of the corpora- tion cannot be ratified by the individual members of the corpora- tion, even if every one expressly assents to it. They cannot ratify an act which the corporation is not clothed with any capacity to do. They cannot make valid against the corporation a mortgage which it had no capacity to make. 152. Though an individual cannot question the power of a corporation to acquire and hold land, he can question its right to dispose of it, when his rights would be interfered with by the corporation's divesting itself of the powder to perform its duties to the public. " The right and power of such a corporation to dis- pose of the property necessary to the exercise of its franchise, and the right of such corporation to hold j^i'operty conveyed to it which by the terms of its charter it is not authorized to pur- chase, so far as individuals are concerned, stand on different grounds. In the one case the individual has no interest in the question, while in the other it is his right to have the corporation discharge its duty to the public ; and, for any failure to do so, by which he receives injury, he may look to the corporation and its property for compensation, notwithstanding the corporation has attempted to divest itself of its corporate existence, franchise, and property." 2 153. A mortgage by a corporation made "without the assent or vote of a certain portion of its stockholders, as required by statute, can be attacked only by the corporators. Objection to its validity cannot be made by the corporation itself in defence to a suit to foreclose the mortgage. Such a provision is for the pro- tection of the stockholders, and they alone are wronged by the der V. ToUeston Club, 110 111. 65 ; Third R. 36 Ch. D. 674 ; Regina v. Reed, L. R. Av. Sav. Bk. V. Dimock, 24 N. J. Eq. 26 ; .5 Q. B. Div. 483, 488 ; M'Cormick v. Parry, Beekman v. Hudson River, &c. Ry. Co. 7 Exch. 35.5 ; Chapleo v. Brunswick Build. 35 Fed. Rep. 3 ; Texas Western Ry. Co. Soc. 6 Q. B. Div. 696, 713. V. Gentry, 69 Tex. 625, 8 S. W. Rep. 98. ^ Russell v. Texas & P. Ry. Co. 68 1 Jones on Corp. Bonds & Mortg. § 20 ; Tex. 646, 653, 5 S. W. Rep. 686, per Stay- Baroness Wcnlock V. River Dee Co. L. ton, J. 132 POWER TO MORTGAGE. [§ 153. execution of a mortgage in violation of the statute, and they alone can raise the question of the validity of the mortgage. The cor- poration is estopped from setting up the defence of ultra vires when the party dealing with it could not, from anything appear- ing upon the face of the paper, be presumed to know that the cor- poration had exceeded its power. ^ 1 Beecher v. Rolling Mill Co. 45 Mich. Gas Coal Co. 37 W. Va. 73, 16 S. W. 103, 7 N. W. Rep. 695 ; Boyce v. Montauk Rep. 501. 133 CHAPTER IX. CAPACITY OF TENANTS IN TAIL AS VENDORS. 154. An estate tail under the statute de donis was inalien- able. The tenant in tail could convey no interest greater than his life estate, and after him the estate descended to "the heirs of his body," or to other lineal heirs described in the deed of the donor. Before the enactment of this statute in 1285, an estate granted to one " and the heirs of his body " was a conditional fee. The condition was an implied one, that, if the grantee should die without issue of the prescribed class, or if there should be a subsequent failure of such issue, the land should revert to the donor. Until the happening of this event the estate of the grantee was in effect an estate for his life, though coupled with a further estate of inheritance, conditional on there being issue of the prescribed class to inherit according to the terms of the gift. The heir, however, did not take by virtue of the deed to his an- cestor, but by descent from him. This was the rule as early as the reign of Henry 111.^ Inasmuch as an ordinary grant to a man and his heirs enabled him to convey the land in fee simple, so a grantee of a conditional fee, such as described above, upon the birth of issue who could inherit, became entitled to con- vey the land absolutely in fee simple, and thus bar not only his own issue, but also his donor's right of reverter. " These estates, therefoi-e, upon the happening of the condition, differed from ordinary estates in fee simple only in the restricted character of their devolution to the class of heirs named in the gift. So soon as the condition was performed by the birth of issue, the tenant could alienate and convey an estate in fee simple. ... If, how- ever, the land was not alienated, it would descend, not according to the ordinary rules affecting inheritances, but according to the mode expressed in the gift. It can hai'dly be doubted that this strained construction was put upon such gifts in order to favor 1 Bracton, Lib. 3, cap. 6, fol. 17 A. 134 CAPACITY OF TENANTS IN TAIL AS VENDORS. [§ 154. the practice of iilienation, which was dear to the common lawyer and to the great mass of landowners, though abhorrent to the domini capitales.''^ ^ To stop the practice of alienating these conditional estates, the statute de donis conditionalihus was passed in the year 1285.^ The statute, after reciting at length the I'easons for its enactment, says: "Wherefore our lord the king, perceiving how necessary and expedient it should be to provide remedy in the aforesaid cases, hath ordained that the will of the giver, according to the form in the deed of gift manifestly expressed, shall be from hence- forth observed, so that they to whom the land was given under such conditions shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto tiie giver or his heirs, if issue fail, either by reason that there is no issue at all, or if any issue be, it fail by death, the heir of such issue failing." Tlie effect of the statute was to render the estate inalienable, and descendible onl}'^ to the issue named in the grant. The grantee could convey a title good only to the extent of his own interest, that is, an estate for his life determinable by the entry of the heir, if such there should be, or, in default of such issue, by entry of the donor. The estate of such grantee was designated an estate VaW^ feudum tcdliatum, being a portion of an estate cut off from the fee. " As time went on, the great inconvenience of such a restriction was strongly felt. Titles were insecure, for an old entail, of which nothing was known, might be brought to light ; nor would any period of enjoyment, however long, afford an answer to such a claim. ' Farmers were ousted of their leases, creditors defrauded of their debts,' The free alienation of land was restrained, a grievance which was probably felt with increas- ing severity in consequence of the impoverishment of the land- owners caused by the Wars of the Roses. The king, too, suffered by the protection against forfeiture which the practice afforded to the issue of a traitor. Thus all members of the community, except perhaps the great landowners themselves, were interested in obtaining a relaxation of the practice of strictly entailing lands." 3 1 Digby's Hist. Law of Real Prop. 4th ^ Digby's Hist. Law of Real Prop. 4th ed. p. 221. ed. p. 250. 2 13 Edw. I. ch. 1. 135 § 155.] CAPACITY OF TENANTS IN TAIL AS VKNDOKS. AltiM- the restriction upon the free alieuiition of estates had eon- tiiuuil lor two hiindreel years, it was liiially in i;reat part broken down by the courts, fii'st by the [)rocess of ''•levying a iine," and afterwarils by the more eifectual tneaiis of a "•coninion recov- ery/" which came into use after the famous Taltai iinrs Case in 1472.^ In England, from this time till 188-1, the common mode of barring an entail ;ind making a conveyance of the estate in fee sim[)le was " to sufier a recovery." After tlie hitter date tlie tenant in tail migiit convey the estate absolutely in fee simple by deed. 155. In this country estates tail -were early introduced as a part of the common law, and with them came the remedy of a conmion recovery. This mode of barring the entail and convert- ing the title into an estate in fee simple was in use during the colonial period, and in some of the States long after the Revolu- tion. Entailed estates were never at any period in much favor, and as time has gone on they have become less in favor than formerly. At the present day, estates tail in most of the States either have been by statute converted into estates in fee simple, or the tenant in tail has been empowered to bar the entail by a conveyance in fee simple. In many States all estates which at common law would be adjudged to be estates in fee tail are declared by statute to be estates in fee simple.^ The grantee in tail has the same power over such an estate as over an absolute estate in fee. 1 See Alienation of Estates Tail, by estate. § 3380 Mcllhinny v. Mcllhinny Howard W. Elphinstone, 6 Law Quart. (Ind.), 37 JS'. E. Rep. 147 ; Allen v. Craft, Rev. 280. 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. ■■2 Alabama: Code 1886, §1825; Sullivan 42.5. Kentucky: G. L. 1894, § 2343; V. McLauixhiin, 99 Ala. 60, 11 So. Rep. Bieckinridj^e v. Denny, 8 Busli, 523; 477. California : Civil Code, § 763. The Brann r. Elzey, 83 Ky. 440. The statute statute doe.s not apply to an instrument does not a])ply to a life estate merely, conveying only a life estate. Baruett v. Bodine l\ Arthur, 91 Ky. 53, 14 S. W. Barnett (Cai.), 37 Pac. Rep. 1049. A Rc|i. 904. Michigan : Annot. Stais. 1882, vesied remainder in fee may be limited § 5519. A remainder may he limited upon such e.state. § 764. Florida: R. S. upon such estate, § .5520. Minnesota : G. 1892, §1818. Georgia: Code 1882, § 2250; S. 1894, § 4364. Mississippi: Annot. Baird v. Brookin, 86 Ga. 709, 12 S. E. Code 1892, § 2436; .Jordan r. Roach, 32 Rep. 981; Beers v. Estill (G^.), 9 S.E. Rep. Miss. 481; Dibrell v. Carlisle, 48 Miss. 596. Indiana : R. S. 1894, § 3378. A re- 691. But a conveyance or devise may be mainiler may be limited on a continjCfency made to a succession of donees then liv- whicli, in case it should happen, will opiT- in Wilson v. O'Connell, 147 Mass, 17, 16 consin: Annot. Stats. 1889, §§ 2027, N. P]. Rep. 578. 2028. 137 § 155.] OArACITY OF TENANTS IN TAIL AS VENDORS. theivol" in foe tail, sliall bo ad judged to be and become seised thereof for his natural life only, and the remainder shall pass iu fee simple absolute to the person to whom the estate tail would first pass, according to the course of the common law, by virtue of such devise, gift, grant, or conveyance.^ There are no statutory provisions in regard to estates tail in Idaho, Iowa, Kansas, Montana, Nebraska, Nevada, Oregon, South Carolina, Texas, and Washington, but it is doubtful whether estates tail, as at common law, are preserved in any of them. In Wyoming it is provided that, in an action by the tenant in tail, the court may authorize a sale of the property when satisfied that a sale would be for the benefit of the person holding the first and present estate, and that no substantial injury would be done to the heirs in tail.^ 'Arkansas: Dig. of Stats. 1884, § 643. Descent, p. 299, § 11. New Mexico: Colorado: Annot. Stats. 1891, § 432. Comp. L. 1884, § 1423. Ohio: R. S. 1892, Connecticut : G. S. 1888, § 2952. Illinois : § 4200. An ordinary deed docs not bar. K. S. 1889, ch. 30, § 6 ; Frazer v. Peoria Tollock v. SpeiJel, 17 Ohio St. 439. Ver- Co. 74 111. 282; Blair v. Vanblarcum, 71 mont : K. L. 1880, § 1916. 111. 290; Lehndorf y. Cope, 122 111.317, In New Jersey, New Mexico, and Ohio 13 N. E. Rep. 50.5. Missouri: R. S. 1889, the remainder goes to the children of the § 8836; Reed v. Lane (Mo.), 26 S. W. first donee as tenants in common. Rep. 957. New Jersey: 1 R. S. 1877; a r. s. 1887, §§ 3009-3019. 138 BOOK I. — PART 11. CAPACITY OF PERSONS AS PURCHASERS. CHAPTER X. CAPACITY OF PERSONS IX GENERAL. 156. No disability on the part of an individual grantee stands in the "way of his taking title under a deed, though the disability be such that a deed made b}^ him would be invalid.^ Thus a conveyance may be made directly to an infant, and the title will vest in him upon the delivery of the deed.^ Although the grantee even in a deed poll becomes a party to it by accepting it, yet its efficacy as a grant and conveyance is not derived from the act of the grantee in accepting it, but from the act of the grantor in executing it. The acceptance of a conveyance by the grantee is presumed, unless it imposes burdens upon him. The delivery may also be to a third person for the use of the grantee ; it therefore follows that the efficacy of a deed does not depend upon the legal capacity of the grantee to transfer an estate by deed.^ 157. A deed to an infant is of course voidable by him upon his coming of age.^ If he repudiates his purchase he must re- convey the land ; and he would doubtless be precluded from repu- diating, and reclaiming the purchase-money, if anything has occurred to prevent his returning the property in substantially 1 Concord Bank !\ Bellis, 10 Cusli. 276, Iowa, 241, 4 Am. Rep. 174; Mitchell v. 278, per Shaw, C. J. ; Campbell v. Kuhn, Ryan, 3 Ohio St. 377, 386 ; Spencer v. 45 Mich. 513, 40 Am. Rep. 479 ; Melvin Carr, 45 N. Y. 406, 410, 6 Am. Rep. 112; V. Proprietors of Locks & Canals, IGPick. Jackson v. Bodle, 20 Johns. 184; Rivard 161, 167, 38 Am. Dec. 384. v. Walker, 39 111. 413; Masterson v. 2 Scanlan v. Wrij^ht, 13 Pick. 523, 25 Cheek, 23 111. 72; Peavey v. Tilton, 18 Am. Dec. 344 ; Annis v. Wilson. 15 Colo. N. H. 151, 45 Am. Dec. 365, per Gilchrist, 236, 25 Pac. Rep. 304 ; Rivard /•. Walker, J. : " ' While a man cannot have an estate 39 III. 413 ; Cecil y. Beaver, 28 Iowa, 241, put into him iu spite of his teeth,' his 4 Am. Rep. 174; Griffith v. Schwender- assent to a conveyance is a lejral prcsump- man, 27 Mo. 412. tion until the contrary appears " 3 Concord Bank v. Bellis 10 Cu-h.276, * Seanlan v Wri;,'ht, 13 Pick. 523, 25 278, per Siiaw, C. J. ; Cecil '•. IJeaver. 28 Am. Dec. 344. 139 $§ l.')8, 159.] CAPACITY OF PKRSONS IN GENEKAL. the same coiulitit)!! it was when it was eonveyeil to liim.^ It has been hiid il>wn, liowever, that an infant cannot recover money actnally }>aiil by him.- 158. An infant grantee, by silently remaining in possession of the property after attaining his majority, affirms the con- veyance. If he wishes to di^^affiim the transaction lie shonlcl yive notice of his intention to do so within a reasonahhi time after lie lias come of age.'^ This rnlc differs from that which ap- plies in some States to a ratification by a grantor of his deed made during minority,'* because the silent acquiescence of such grantor ordinarily occasions no injury to other persons, and se- cures no benefit to himself; but a grantee, by liis silent acquies- cence, obtains an advantage for himself in the enjoyment of the property, and consequently common justice imposes upon him a duty to make his election to disaffirm the purchase within a reasonable time.^ If an infant makes an exchange of land, and after attaining full age continues to occupy the lands taken in exchange, he affirms the exchange.^ 159. An insane person is capable of taking title by deed.'' Although he may be incapable of making an intelligent accept- ance of the deed, if the conveyance is beneficial to him his ac- ceptance may be presumed ; and a good delivery may always be made to a third person for the use of such grantee. If the deed imposes a liability or obligation upon the grantee, there is no presumption of acceptance by him. His purchase is of course voidable by him upon liis recovery of a sound mind ; and it is voidable by his heirs after his death, or by his guardian during 1 5 Bythewood's Precedents, 4tli ed. 89, r. Barrett, 4 M'Cord, 241, 17 Am. Dec. citing Blackburn v. Smith, 2 Exch. 783. 735 ; Cuilis r. Day, 38 Wis. 643 ; Kline - Wilson V. Kearse, 2 Pcake N. P. C. v. Beebe, 6 Conn. 494 ; Middleton v. 196; Ex parte Taylor, 8 De G., M. & G. Hoge, 5 Bush, 478; Hook v. Donaldson, 254. 9 Lea, 56 ; Ellis v. Alford, 64 Miss. 8, 1 3 Boyden y. Boyden, 9 Met. 519; Hub- So. Rep. 155; Johnston v. Furnier, 69 bard v. Cummings, 1 Me. 11; Dana v. Pa. St. 449. Coombs, 6 Me. 89, 19 Am. Dec. 194; " § 27. Boodyr. McKenny, 23 Me. 517; Hastings ^ Boody i-. McKenny, 23 Me. 517, per V. Dollarhide, 24 Cal. 195, 216, per Shaf- She].ley, J. ter, J. ; Baxter v. Bush, 29 Vt. 465, 70 6 Ellis v. Alford, 64 Miss. 8, 1 So. Rep. Am. Dec. 429; Robbins v. Eaton, 10 N. 155. H. 561 ; Henry v. Root, 33 N. Y. 526 ; ^ Campbell v. Kuhn, 45 Mich. 513, 8 Walsh V. Powers, 43 N. Y. 23, 3 Am. Rep. N. W. Rep. 523, 40 Am. Rep. 479 ; Con- 654; Dewey «. Burbank, 77 N. C. 2.59; cord Bank v. Bellis, 10 Cush. 276, per Baker v. Kennett, 54 Mo. 82 ; Cheshire Shaw, C. J. 140 CAPACITY OF PERSONS IX GENERAL. [§§ 160, 161. his lifetime. He miiy also eonfirin his purchase after he has been restored to his right mental condition, and then neither he nor his heirs would afterwards be able to avoid it.^ 160. At common law a married woman could take a con- veyance as grantee without- her husband's consent, though the liusband might avoid it by some act declaring his dissent, and the wife, after her husband's death, could avoid it.^ But under the modern statutes, which in general confer upon a married woman the same rights in regard to her property that she would have were she not married, save only that in making conveyances of her property her husband must join in them, her husband's assent to her purchase of land is not requisite to make the conveyance indefeasible either by her husband or by herself. 161. Persons holding property in a fiduciary character are not competent to purchase it, either directly or indirectly. This rule is of wide application. It applies not only to persons who are strictly trustees, but also to agents, confidential advisers, partners, directors and promoters of corporations, mortgagees with a power of sale, and all persons " who, by being employed or concerned in the affairs of another, have acquired a knowledge of his propert}'." ^ The cestui que trust can insist upon a reconveyance from the purchasing trustee, or from a third person who purchased with knowledge of the trustee's sale for his own benefit. If the cestui que trust has received the proceeds of such sale, he must, in the first place, return the money so received with interest.^ If the purchasing trustee has made permanent improvements, where there has been no actual fraud he will be allowed for such expen- ditures as have been of substantial benefit to the property. If ^ Steed t'. Galley, 1 Keen, 620; Bever- relation that, while it continues, confi- ley's Case, 4 Coke, 123 6. dence is necessarily reposed by one, and ■■^ 2 Kent Com. 150; Nichoil v. Jones, the influence which naturally giows out \j. U. 3 Eq. 696 ; Field v. Moore, 19 Beav. of that confidence is possessed by the other, 176 ; Emery v. Wase, 5 Vcs. 848 ; Granby and tl'is confidence is abused, or tlie influ- V. Allen, 1 Ld. Raym. 'J24 ; Scanlan v. ence is e.xerted to obtain an advantajre at Wri<,rlit, 13 Pick. 523, 530, 25 Am. Dec. the expense of tiie coufidini; party, the 344 ; Baxter v. Smith, 6 Binn. 427. person so availinjj himself of his ])o-ition •^ Suf^den Vend. & Pur. 688 ; 1 Perry will not be permitted to retain the advan- on Trusts. §195; 5 Bythewood's Prece- ta{?e, although the transaction could not dents, 4th ed. 95; Ex parte James, 8 Ves. have been impeached if no such confiden- 337 ; Tate c. Williamson, L. H. 2 Ch. tial relation had exi.-ted." 55. In this case Lord Chelmsford said : * Ex parte James, 8 Ves. .337, 351 ; " Wherever two persons stand in such a Morse v. Hill, 136 Mass. 60, 64. 141 § 1(>2.] CAPACITY OF I'KKSOXlS IN GKNERAL. the I'rstiii (jKc trust does not wish for a reconveyance, the property can be jiut up for sale, either absohitely or at a niinimiini [)rice. If the purchasing trustee has sold the property, he can be held to account as trustee for the price received. If thi^ pro})erty remains unsold in his hands, the cestui que trust, if he so elect, can Compel hira to account for its actual value at the time of the purchase.^ 162. The trustee may purchase from his cestui que trust, or with his full knowledge and consent. " He may, if he pleases," says Lord Eldon,- " retire from being a trustee, and divest him- self of that character, in order to qualify himself to become a purchaser; and so he may purchase, not indeed from himself as trustee, but under a specific contract with his cestui que trust. But, while he continues to be a tiustee, he cannot, witliout the express authority of his cestui que trust, have anything to do with the trust property as a purchaser." The prohibition is, that the trustee shall not buy from himself, using for his own advantage the information about the property acquired by him in his trust capacity.^ It is t ssential, however, to the validity of a purchase by a trustee from his cestui que trust, that there should be "• no fraud, no concealment, no advantage taken by the trustee of the information acquii'ed by him in the character of a trustee."* The burden of proof lies on the trustee to establish the propriety of the transaction, and to show that he has acted fairly and openly in dealing with his cestui que trust.^ A purchase by a trustee may be confirmed bj' the person bene- ficially interested under the trust, either expressly or by implica- tion, provided the confirmation was made with full knowledge of the facts of the case, and especially with knowledge that the trus- tee had purchased and that his purchase was improper.^ A pur- chase by a trustee can be set aside only at the option or for the benefit of the cestui que trust. The trustee himself cannot repu- diate his own purchase." 1 1 Perry on Trusts, § 197 ; Ex parte * Lord Eldon in Coles v. Trecothick, 9 Hughes, 6 Ves. 617; Morse v. Hill, 136 Ves. 234, 246; Randall v. Errington, 10 Mass. 60, 64, per Field, J. Ves. 423 ; Denton v. Donner, 23 Beav. 2 Downes v. Grazebrook, 3 Mer. 200, 285; Tate v. Williamson, L. R. 2 Cii. 55. 208. 6 Luff V. Lord, 34 Beav. 220 ; Wlielp- 3 1 Perry on Trusts, § 195 ; Coles v. dale v. Cookson, 1 Ves. Sen. 9. Trecothick, 9 Ves. 2.34 ; Ex parte Lacey, 6 e Charter v. Trevelyan, 11 CI. & F. 714; Ves. 625 ; Clark v. Swaile, 2 Eden, 134. Barwell v. Barwell, 34 Beav. 371. 142 ■ Perry on Trusts, § 198. CHAPTER XL CAPACITY OF ALIENS AS PURCHASERS. 163. At common law, aliens could not acquire and hold land by a secure title. The crown or the state could ciaim land held by them or for their benefit.^ Coke says : " If an alien, Christian or infidel, purchase houses, lands, tenements, or here- ditaments to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee simple, but not to hold. For upon an office found, the king shall have it by his prerogative of whom- soever the land is holden. And so it is, if the alien doth pur- chase land and die, the law doth cast the freehold and inheritance upon the king. If an alien purchase any estate of freehold in houses, lands, tenements, or hereditaments, the king upon office found shall have them."^ In England exceptions to this rule were made by statute, until in 1870 it was provided that all property may be acquired, held, and disposed of by aliens in the same manner as by natural-born British subjects.'^ In this country the disability of alienage is now in many States wholly reuioved, so that aliens, whether resi- dents or not, may take and hold real property by purchase or otherwise, and dispose of the same, in like manner as can citizens of the United States. In other States the disability is limited or restricted.* 1 Barrow v. Wadkin, 24 Beav. 1 ; Sharp Territory : Act of Congress, March 3, V. St. Sauveur, L. R. 7 Ch. 343; Dunion- 1887, applies. Alien.s may inherit in >|ie- cel V. Duinoucel, 13 Ir. Eq. 92; Norris v. cial eases. R. S. 1887, § 1472. Arkansas: Hoyt, 18 Cal. 217; Farrell r. Enright, 12 Dig. of Stats. 1884, § 233. California: Cal. 450. Civ. Code, § 671 ; Estate of Billings, 65 Cal. 2 1 Co. Litt. 2 h. 593, 4 Pac. Itep. 639. Colorado : If bo'ia * 33 Vict. ch. 14. Jide residents. Const. 1876, art. 2, § 27. * The constitutional or statutory pro- See McConville v. Howell, 17 Fed. Kep. visions of those States in which the dis- 104. Connecticut: If residents of any of ability is wholly removed are merely re- the United States, or citizens of France, ferred to, and the restrictions in otliei- so long as France shall accord the same States arc briefly and ])artially stated, privilege to citizens of the United State.') Alabama; Code 1886, § 1914. Arizona Non-resident aliens mav acquire and hold 148 § 103.] CAPACIIY OF ALIENS AS rURCHASERS. Hv act of Congress it is prov'ulcd that it shall bo unlaAvrul for auv luMsoii or persons not citizens of the l^nitid Stati's, or who liiiitl for miniiii: or 4, 1G5.] CAPACMY OF AI.IKNS AS I'UHCHASKKS. tions, not. citizens of tlie United St:ites, shall hereafter acquire or hold or own any real estate hereafter acquired in any of the Territories of the United States or of the District, of Colunil>ia.^ 164. A constitutional provision that aliens shall have cer- tain rights in regard to property does not inhibit legislation conferring greater rights. Thus a constitutional [irovision, giv- ing bona fide resident aliens the same rights as to the possession and inheritance of property as native-born citizens have, is a limi- tation of tiie legislative power, so that these rights could not be denied by the legislature ; but it does not prevent the legislature from conferring additional rights and privileges upon aliens .2 A legislative grant of land by the United States or by a State to an alien would doubtless confer the power to enjoy and trans- mit it, but this rule does not hold good as to patents issued by ministerial officers upon ordinary purchases by an alien of the ]-)ublic domain.-'^ 165, As affected by treaties. — The title to real property is acquired, held, and passed according to the lex rei sitce. This principle is applicable not only as between countries entirely for- eign to each other, but also to the States of the American Union. It follows that the title of aliens to land within the limits of the several States is a matter of state regulation.* Under the Con- stitution of the United States, treaties made under its authority are the supreme law of the land, and the treaty-making power properly extends to provisions in regard to the transfer, devise, or inheritance of property. Hence a treaty will control or suspend the statute of any State which contravenes the treaty ; and a treaty which confers upon citizens of a foreign country the right to take, hold, and transfer real property will suspend or control the laws of a State disqualifying or restricting the right of aliens in this respect.^ 1 Act March 3, 1887,24 Stats, at Large, State where the landis situated. Prince- pp. 476, 477. ton M. Co. ?•. First Nat. Bank, 7 Mont. There is legislation in a few State.';, also, .530, 19 Pac. Rep. 210. that corporation.s, whose stock or a consifi- 2 people v. Roger.s, 13 Cal. 159 ; Estate erable part of it is held by aliens, shall not of Billings, 6.5 Cal. 593, 4 Pac. Rep. 639. acquire an. li. S. 1873, § 554. Florida : Such as purposes of c(;rp()ration require. R. S. 1892, § 2121. Georgia : Necessary for the purpose of tluir organization. Code 1882, § 1679. Idaho T. : Such as purposes of corpora- tion require. R. S. 1887, §2633. Illinois: Necessary for their business. But all real estate acquired in satisfaction of any liabil- ity or indebtedness, unless the same is ne- ce.ssary or suitable for the business of such corporation, shall be offered at ]jub!ic auc- tion at least once every year and sold, whenever the price offered is not less than the cbiini upon it; and if it is not solil within fiv(! years the State's attorney shall proceed by information against the corpo- ration to ()bt;iin a sale of such land. R. S. 1889, eh. 32, § 5. lowa : May acquire with tlie same, power as ])rivate imlividu- als. Annot. Code 1888, § 1609. Kansas: Such as purposes of corporation require. G. S. 18S9, § 1 107. Kentucky: Shall not hold real estate, except such as may be necessary for carrying on its legitimate business, for a longer period than five years, under penalty of escheat. G. S. 1894, § 567. Louisiana: May hold and convey real property. R. L. 1884, § 684. Maine : May hold and convey lands. R. S. 1883, ch. 46, § 2. Maryland: Neces- sary or proper. Pub. G- L. 1888, art. 23, § 53. Massachusetts : May hold such real estate as is necessary for the purposes of its organization. P. S. 1882, ch. 106, § 50. Michigan: May hold land to an amount authorized by law and convey the same. Annot. Stats. 1882, § 4866. A corporation for acqniriui; and selling real estate may hold such as may be necessary for carrying on its business, and may mortgage and dispose of the same with pleasure ; but such corporation shall not hold at one time more than one thousand acres, and the title shall not remain in the corporation for a term, exceeding seven years. Pub. Acts 1891, p. 63. Minnesota : Necessary or convenient for the purpose of its business. G. S. 1894, § 2798. Mississippi : Real and personal property necessary and proper for its purposes, not exceeding .$250,000, though manufactur- ing companies and banks miiy hold prop- erty to the amount of $1,000,000. Annot. Code 1892, § 838. " May take a lien on a larger amount of property as security or in payment of a debt, but shall not hold the same longer than five years. §838. Missouri: Shall not hold real es- tate for any longer period than six years, except such as may be necessary and proper for its legitimate business. Const, art. 12, § 7 ; R. S. 1889, § 2508. Montana: 158 § 173.] CAPACITY OF CORPORATIONS AS PURCHASERS. not prooist>ly uliko in terms, some describing the reul estate wliicli eorporiitions may hold as "necessary," otliers as "proper," or "•necessary and convenient," or "required" for the purposes of the incorporation ; but there is little if any difference in the nu'aning of these statutes. 173. A deed to a corporation ■which is forbidden by its charter to purchase and hold real estate is void.^ In such case. May hold and convey such real property as its purposes may require. Com)). Laws 1887, §§ 447,482. Nebraska: Necessary for legitimate luisiuess. Coiup. Stats. 1893, ch. 1(1, § 124. Nevada: Such real estate as the purposes of tlie corj)oratiou require. G. S. 1885, § 805. New Hamp- shire: Necessary and proper. P. S. 1891, eh. 14S, § 8. New Jersey: Such as pur- poses of corporation require. R. S. 1877, Corp. Act, § 1. New Mexico : May hold, mortgage, and convey such as purposes of corporation require. Comp. Laws, 1884, § 195. New York : Such as the purposes of tlie corjjoration require. Laws 1892, ch. 687, § II. North Carolina : May hold and convey land not exceeding three hun- dred acres, or for longer than thirty years, except mining, manufacturing, and water supjjly companies. Code 1883, § 666. North Dakota : Such as its purposes may require. Comp. Laws 1887, § 2919. Ohio: Necessary and convenient for the objects of the incorporation. R. S. 1892, § 3239. Oklahoma : Such as purjwses of the cor- poration may require. Stats. 1893, § 949. Oregon : Necessary and convenient to carry into effect its objct.s. Annot. Laws 1892, §3221. Pennsylvania: Such as purposes of the corijoration require. Briglitly's Purdon's Dig. 1894, p. 405. Rhode Is- land : May hold and convey real estate. P. S. 1882, cli. 152, § 1. South Carolina : Such as may be required for tlieir ]iur- poses. Acts 1886, ch. 288, §§ 22, 26. Sonth Dakota : Shall not hold any real estate, except such as may be necessary and proper for its legitimsite business. Const, art. 17, § 7. Tennessee : Neces- sary for the corporate bu-ities.-. Code 1884, § 1704. Texas: Such as the pur- lo4 poses of the corporation shall require. R. Civ. Stats. 1889, art. 575. Utah: Necessary for its general business, but shall not engage in business of buying and selling real estate. Comp. Laws 1888, § 2272. Vermont : Necessary for the pur- poses of the corporation. R. L. 1880, §3282. Virginia: May hold and grant real estate. Code 1887, § 1068. Washing- ton : May hold, mortgage, and convey real estate. G. S. 1891, § 1500. West Virginia : May hold and grant real estate. Code 1887, ch. 52, § 1. Wisconsin: To hold real jiroperty to an amount author- ized by law. Annot. Stats. 1 889, § 1 748. Wyoming : May hold and convey any real estate necessary for the purposes of the corporation. R. S. 1887, § 502. United States Territories : No corporation, other than those organized for the construction or operation of railways, canals, or turn- pikes, shall acquire, hold, or own more than five thousand acres of land in any of the Territories of the United Stales; and no railroad, canal, or turnpike corporation shall hereafter acquire, hold, or own lands in any Territory other than as may be ne- cessary for the proper operation of its rail- road, canal, or turnpike, except such lands as may have been granted to it by act of Congress. U. S. Stats. 1887, ch. 340, § 3. 1 St. Peter's, &c. Cong. v. Germain, 104 III. 440 ; United States Trust Co. v. Lee, 7;i III. 142, 24 Am. Rep. 236; Stark- weather V. Am. Bible Soc. 72 111. 50, 22 Am. Rep. 133 ; Carroll v. East St. Louis, 67 111. 568, 16 Am. Rep. 632 ; Fowler v. Scully, 72 Pa. St. 456, 13 Am. Rep. 699 ; Leazure V. Ilillega.s, 7 S. & R. 313, 319 ; Matthews V. Skinker, 62 Mo. 329, 21 Am. Rep. 425 ; Ilavward v. Davidson, 41 Ind. 212. RESTRICTIONS UPON DOMESTIC CORPORATIONS. [§ 174. the corporation being prohibited to take and hold real estate for any purpose, it would seem to be wholly wanting in the capacity to take title under a deed.^ But probably the better view is, that even in such case the deed is not absolutely void, but only voidable at the instance of the State.2 l^ jy valid until assailed by the sovereign power. Thus, where a New York corporation took a deed to real estate in Pennsylvania, where by statute a foreign corporation is forbidden to acquire and hold real estate, it was held that the deed to the corporation was not void, but conveyed title to it under which it could maintain ejectment, and that the State of Pennsylvania alone could object to the legal capacity of the corporation to hold the land.'^ 174. A mortgage to a national bank which is prohibited to loan on such security is not void but may be enforced. A bank organized under tlie national banking act * is authorized to take and hold a mortgage of real estate by way of security for debts previously contracted,^ but not to take such a mortgage as security for a debt contracted at the time or for future advances. Such a mortgage was till recently regarded as invalid.^ There- fore a mortgage made to a national bank by a customer, as col- lateral security for the payment of all notes then discounted and held by the bank, " or for any other indebtedness now due, or that may hereafter become due," was regarded a valid security only for the indebtedness existing when it was given; and upon the payment of such indebtedness, and the surrender of the spe- cific notes constituting such indebtedness, the mortgage was dis- charged.'' The Supreme Coui't has recently, however, established 1 Angell & Ames on Corp. § 152 ; Gil- & Allen v. First Nat. Bank of Xenia, bert V. Hole, 2 S. D. 164, 49 N. W. Rep. 23 Ohio St. 97 ; Heath v. Second Nat. 1, 4 Atn. R. & Corp. Kep. 683, per Kel- Bank of Lafayette, 70 Ind. 106; Scofield lam, v. J. r. State Nat. Bank, 9 Neb. 316, 2 N. W. 2 National Bank ;;. Matthews, 98 U. S. Kep. 888, 31 Am. Rep. 412. 621, 628; Tarpey v. Desseret Salt Co. .5 « Kansn.s ValleyBank u. Rowell, 2 Dill. Utah, 494, 17 Pac. Rep. 631 ; Missonri 371 ; Crocker v. Whitney, 71 N. Y. 161 ; Val. Land Co. v. Bnshnell, 11 Neb. 192,8 Fowler v. Scully, 72 Pa. St. 456, 13 Am. N. W. Rep. 389 ; Myer.s r. McGavock, 39 Rop, 699 ; Ripley v. Harris, 3 Bi?s. 199 ; Neb. 84.3, 58 N. W. \le\K 522 ; Russell v. First Nat. Bunk v. Maxfield, 83 Me. 576, Railway Co. 68 Tex. 646, 5 S. VV. Rep. 686. 22 Atl. Rrp. 479. 3 Hickory Farm Oil Co. v. Buffalo, &c. v Crocker r. Whitney, 71 N. Y. 161 ; R. Co. 32 Fed. Rep. 22. Woods >j. People's Nat. Bank of Pittrt- * June 3, 1864, §§ 8, 28. burfrh, 83 Pa. St. 57. 155 § IT.-..] CArAClTV ()!•■ CC)i;l'()KATI()NS AS rUHCHASERS. :i (lilTi'ioiit ;iiul iiMre reasonable eoustruclion ol' the prohibition in the national banking act of a loan made upon real estate security^ declaring that, although such a loan is prohibited, it is not void. A mortgage taken in violation of the prohibition is valid and may b(> cMit'oreed. Tlic remedy for the violation is a forfeiture of the bank's charter.' 175. The question whether a corporation has exceeded its powers in acquiring real estate is generally one between the State and the corporation. "-^ The right of a corporation to hold real estate cannot be questioned collaterally, but only by the State in a direct proceeding instituted for the purpose.^ Thus, in 1 Fortier v. New Orleans Bank, 112 U. S. 439, 5 Sup. Ct. Kep. 234 ; National Bank v. Matthew-s, 98 U. S. 621, 19 Alb. L. J. 1.32, 18 West. Jur. 176, 8 Cent. L.J. 131 ; National Bank v. Whitney, 103 U. S.99 ; Swope v. Leffingwell, 105 U. S. 3 ; Kisner y. Trigji, 98 U. S. 50; Thornton v. Nat. Exchange Bank, 71 Mo. 221 ; First Nat. Bank v. Elmore, 52 Iowa, 541, 3 N. W. Kep. 547 ; Wroten r. Armat, 31 Gratt. 228 ; First Nat. Bank v. Roberts, 9 Mont. 323, 331, 23 Pac. Rep. 718. 2 Cowell V. Springs Co. 100 U. S. 55; National Bank v. Whitney, 103 U. S. 99; National Bank v. Matthews, 98 U. S. 621, 628; Reynolds v. Crawfordsville Bank, 112 U. S. 405, 413, 5 Sup. Ct. Rep. 213 ; Runyan v. Coster, 14 Pet. 122. California : Natoma Water & M. Co. ?•. Clarkin. 14 Cal. 544, 552; California State Tel. Co v. Alta Tel. Co. 22 Cal. 398. Illinois : Hough v. Cook Co. Land Co. 73 111. 23, 24 Am. Rep. 230 ; Alexan- der V. Tolleston Club, 1 10 111. 65 ; Barnes V. Suddard, 117 111. 237, 7 N. E. Rep. 477, 13 Am. & Eng. Corp. Cas. 7. In- diana : Baker v. Neff, 73 Ind. 68 ; Hay- ward V. Davidson, 41 Ind. 212. Iowa: Chicago, B. & Q. R. Co. v. Lewis, 53 Iowa, 101, 4 N. W. Rep. 842. Missouri : Ragan v. McRIroy, 98 Mo. 349, 352, 11 S. W. Rep. 735 ; Mclndoe );. St. Louis, 10 Mo. 576; Chambers v. St. Loui«, 29 Mo. .543; Shewalter r. Pirner, 55 Mo. 218, 233. Mississippi : Wade v. Am. Col Soc. 7 S. & M. 663, 697, 45 Am. Dec. 324. 156 Nevada: Whitman Min. Co. i'. Baker, 3 Nev. 386. Nebraska : Watts v. Gantt (Neb.), 61 N. W. Rep. 104 ; Missouri Val. Land Co. v. Bushnell, 11 Neb. 192, 8 N. W. Rep. ."^S'.t ; Carlow i\ Aultman, 28 Neb. 672, 44 N. W. Rep. 873; Myers v. Mc- Gavock, 39 Neb. 843, 58 N. W. Rep. 522 ; Hanlon r. Union P. R. Co. 40 Neb. 52, 58 N. W. Rep. 590. New Jersey : De Camp V. Dobbins, 29 N. J. Eq. 36, 31 N. J. Eq. 67 1 , 691. New York : Bogardus v. Trinity Church, 4 Saudf. Ch. 633, 758. North Carolina : Mallett r. Simpson, 94 N. V,. 37, 55 Am. Rep. 595. Peuusylvania : Grant r. Henry Clay Coal Co. 80 I'a. St. 208 ; Bone V. Delaware & II. Canal Co. (Pa.) 5 Atl. Rep. 751 ; Gonndie v. Northampton W. Co. 7 Pa. St. 233,239 ; Baird ;;. Bank of Washington, 11 S. & R. 41 1 ; Leazure v Hillegas, 7 S. & R. 313. Tennessee : Bar- row I'. Nashville & C. T. Co. 9 Humph. 304. Virginia: Banks v. Poitiaux,3 Rand. 136, 15 Am. Dec. 706. Texas : Russell v. Texas & P. Ry. Co. 68 Tex. 646, 5 S. W. Hep. 686. 3 Seymour o. Slide & Spur Gold Mines, 153 U. S. 523, 14 Sup. Ct. Rep. 847 ; Cowell V. Springs Co. 100 U. S. 55, 60; Friits v. Palmer, 132 U. S. 282, 10 Sup. Ct. Rep. 93 ; National Bank v. Whitney, 103 U. S. 99 ; Jones V. Habersham, 107 U.S. 174, 188, 2 Sup. Ct. Rep. 336 ; Watts v. Gantt (Neb.), 61 N. W. Rep. 104 ; Davis v. Old Colony R. Co. 131 Mass. 258, 273, 41 Am. Rep. 221„ per Gray, C. J.; Butte Hardware Co. i>. Schwab ( Mont.), 34 Pac. Rep. 24 ; Galves- ton Land & Imp. Co. v. Perkins (Te.x. (^i''. RESTRICTIONS UPON DOMESTIC CORPORATIONS. [§§ 176, 177. an iictioii by a corporation to recover possession of land, it is no defence for the defendant to answer that a recovery by the cor- poration would vest in it more land than it was entitled to hold,^ "It would lead t(j infinite inconveniences and embarrassments if, in suits b}' corporations to recover the possession of their property, inquiries were permitted as to the necessity of such property for the purposes of their incorporation, and the title made to rest upon the existence of that necessity." ^ The only exception to this rule is where a collateral attack by a private party is expressly authorized by legislative per- mission. ^ 176. A corporation de facto may take a conveyance of land, and its corporate existence and right to hold the land can be questioned only by the State in direct proceedings to inquire into its right to exercise corporate functions.^ In an action by it to recover possession of land, no private person will be allowed to inquire collaterally into the regularity of its organization. A suit by such a corporation to foreclose a mortgage cannot be de- feated by a junior mortgagee by showing that the corporation was defectively organized.'^ 177. But the rule, that the limitation of the power of a cor- poration to acquire and hold land concerns the State alone, applies only when the land has been acquired : it does not apply when a corporation, as plaintifl, is seeking to acquire land w^hich it is not authorized to acquire. This distinction is made clear in a judgment delivered by Mr. Justice Miller in a case be- App.), 26 S. W. Rep. 256; Connecticut &c. R. Co. 60 Mo. 508 ; Connecticut Mut. Mut. L. Ins. Co. V. Smith, 117 Mo. 261, 22 L. Ins. Co. v. Smith, 117 Mo. 261, 22 S. S. W. Rep. 623 ; Ragan v. McElroy, 98 W. Rep. 623. Mo. 349, 352, 11 S. W. Rep. 735 ; Hovel- * Doyle v. San Diego Land Co. 46 Fed. man v. Kansas City, &c. R. Co. 79 Mo. Rep. 709 ; East Norway Lake Church v. 632; Thorntons. Nat. Exch. Bank. 71 Mo. Froislie, 37 Minn. 447, 35 N. W. Rep. 221 ; Athmtic & P. R. Co. r. St. Louis, 260; People v. La Rue, 67 Cal. 526, 8 66 .VIo. 228, 251 ; Shnwalter v. Pirner, 55 Pac. Rep. 84 ; Baker v. Neff, 73 Ind. 68; Mo. 219, 233; Land r. Toffman, .50 Mo. Thompson v. Candor, 60 111.244 ; Hudson 243; Chambers ?;. St. Louis, 29 Mo. 543, v. Green Hill Seminary, 113 111. 618; 573. Granby M. Co. i'. Richards, 95 Mo. 106 ; 1 Bone V. Delaware & H. Canal Co. Finch v. Ullman, 105 Mo. 255,263, 16 (Pa.) 5 Atl. Rep. 751. S. W. Rep. 863; Crenshaw v. Ullman, - Naioma Water & M. Co v. Clarkin, 113 Mo. 633, 20 S. W. Rep. 1077. 14 Cal. 544, 552, per Field, C. J. " Williamson v. Kokomo Build. Asso. ■' Kinealy j;. St. Louis &c. Ry. Co. 69 89 Ind. 389. Mo. 658, 663 ; Martindale v. Kansas City, 157 § ITS.] cAi'Acrrv of cokpoijations as purchasers. fore llio Siii>r>'im» Court of tlie Unit(^d States:^ "We lued not stc)[> here to iiupiire wliellier this couiimiiy can hold titU' to lands, which it is impliedly forbidden to do by its charter, because the case before us is not one in which the title to the lands in ques- tion has ever been vested in the railroad company, or attempted to be so vested. The railroad company is plaintiff in this action, and is seeking to obtain the title to such lands. It has no authority by the statute to receive such title and to own such lauds ; and the question here is, not whether the courts would deprive it of such lands if they had been conveyed to it, but whether they will aid it to violate the law and obtain a title which it has no power to hold. We think the questious are very dift'erent ones, and that, while a court might hesitate to declare the title to lands received already, and in the jiossession and own- ership of the company, void on the principle that they had no authority to take such lands, it is very clear that it will not make itself the active agent in behalf of the company in violating the law, and enabling the company to do that which the law forbids." 178. Corporations have generally no power to acquire and hold real estate for purposes other than those for which they were organized.- They cannot purchase and hold real estate indefinitely, without regard to the uses to be made of it. Thus a railroad corporation authorized to acquire and hold lands for its I'ight of way and for other purposes particularly enumerated con- nected with the use and management of the railroad, cannot ac- quire lands for speculative or farming purposes, or for any other purposes than those mentioned. The enumeration of pur))Oses is necessarily exclusive of all other purposes.^ The corporation is limited to the holding of such lands as are necessary for the loca- tion of its road, its stations, and necessary buildings. 1 Case V. Kelly, 133 U. S. 21, 28, 10 1 Doujr. 401, 41 Am. Dec. 575; Hayward Sup. Ct. Rep. 216. V. Davidson, 41 Iiid. 212; State Bank v. 2 Case V. Kelly, 133 U. S. 21, 10 Sup. Brackenridf,'e, 7 Blackf. 395; Pacific R. Ct. Rep. 216; Morgan v. Donovan, 58 Co. v. Seely, 45 Mo. 212, 100 Am. Dec. Ala. 241 ; Occum Co. v. Sprague Manuf. 369 ; State v. Mansfield, 23 N. J. L. 510. Co. 34 Conn. 529; Coleman t'. San Ra- ^ Case v. Kelly, 133 U. S. 21, 10 Sup. phael Tnrnp. Co. 49 Cal. 517; Metropol- Ct. Rep. 216; Pacific R. Co. v. Seely, 45 itan Bank v. Godfrey, 23 111. 579 ; Waldo Mo. 212, 100 Am. Dec. 369 ; Rensselaer, V. Chicago, &c. R. Co. 14 Wis. 575 ; First &c. R. Co. v. Davis, 43 N. Y. 137 ; State Parish v. Cole, 3 Pick. 232; Rens.selaer, v. Mansfield, 23 N. J. L. 510; Hamilton v. &c. R. Co. V. Davis, 43 N. Y. 137 ; Bank Annapolis, &c. R. Co. 1 Md. 553 ; El- of Michigan v. Nilcs, Walker (Mich.), 99, dridgc v. Smith, 34 Vt. 484. 158 RESTHICTIOXS UPON DOMHSTIC CORPORATIONS. [§ 179. 179. "Whether a limitation by the charter of a corporation as to the amount of property it may hold is operative only in favor of the State, and the corporation can hold property in excess of the limitation as against the rest of the world, is a ques- tion upon which there is some apparent conflict of opinion ; though t'le weight of authority is to the effect that such a corporation cannot take beyond the amount limited, and that any person entitled may invoke tlie limitation unless precluded by estoppel. The doctvine, that a corporation may take property in excess of the amount limited by its charter, has been declared for the most part in cases where the property has been acquired by purchase for value, "and consequently where the vendor was estopped by his own conveyance from contesting the title conveyed, and equally so his heirs; or where the persons challenging the title were mere strangers to it, and as such in no position to question its validity." ^ This doctrine has, however, been declared in some cases in which there was no estoppel, the property having been given by will.^ In cases where there is no estoppel, as where the property is given by will to a corporation in excess of its capacity by its cliarter or by statute to hold property, the doctrine generally de- clared is that the gift is invalid so far as it exceeds the limit, and to that extent goes over under the will, or descends as intestate property to the heirs or next of kin of the testator.'^ In the well- considered case decided by the Supreme Court of Rhode Island, Chief Justice Durfee said : " It seems to us that the natural and logical conclusion, independently of authority, is, that an artificial body created by law, without capacity to take or hold property beyond a certain limit, cannot, by reason of the very law of its being, take or hold property beyond that limit, and consequently that the courts ought to recognize the fact in favor of any person who is entitled, on supposition of the incapacity of the corpoi-a- tion, unless, by estoppel or otlierwise, such person is precluded from making claim." ' Wood V. Iliimmond, 16 R. I. 98, 116, fered or repealed before the will went into 17 Atl. Kep. 324, per Durfee, C. J. effect. 2 As in Jones v. IlabersliMm, 107 U. S. ^ Wood v. Hammond, 16 R. I. 98, 118, 174, 18.'?, 2 S. Ct. Rep. 336 ; and l)e Camp 17 Atl. Rep. 324 ; Matter of McGraw, 111 V. Dobbins, 29 N. J. Eq. 3.5, 31 N. J. Eq. N. Y. 60, 19 N. E. Rep. 233 ; Chamber- 671, 690. In each of these cases the l:iin r. ('haiiibcrlMin, 43 N. Y. 424 ; Cromie act imposing the limitation had been al- v Louisville Orphans' Soc. 3 Bush, 365. 159 ■§ 180.] (WrACIlY OF COKrOKAllONS AS I'URCIIASKKS. Ill tlu' Icailiiig- ease in New York it, was lielii that a limitation bv cliarUT ;!S to the auiount oF luopntv a coipoiati.ui may liohl joiiders any gift to it by will beyond that amount wholly void. Thus the eharter of Cornell University, having })rovided tluit it might hold pi'operty not exceeding three million dollars in the aggregate, was held to be prohibited from holding ])r()perty beyond that amount ; and it api)earing thal< the university already lield property up to this limit, a further gift to it by will was declared void, and that tht; heirs or next of kin of the testator could raise the question.' 180. The distinction recognized in relation to the English mortmain acts between the taking and holding of property by corporations is not ap[)licable in respect to the restrictions upon the capacity of corporations in this country. Under the old mortmain laws the title vested in the corporation, and this was indefeasible except by the reentry of the person entitled to take by reason of the forfeiture. The superior lord or the king might grant a license to the coi-poration to hold the land ; but the supe- rior lord, or ultimately the king, might insist upon a forfeiture. But in case the forfeiture was not insisted upon, the corporation could hold as against all the world. In an important case before the Court of Appeals of New York it was ai-gued, from the vest- ing of title under the mortmain acts, and the title remaining in the corporation except in case of a reentry of the person entitled to claim a forfeiture, that under the charter of the Cornell Univer- sit3% granted by the State of New York, limiting the amount of property the corporation might hold, property in excess of the limitation given by will would vest in the cor[)oration, and that the restriction applied only to its holding the property in excess of the amount limited. Replying to this, Mr. Justice Peckham, delivering the opinion of the court, said : ^ " But the circum- 1 Matter of McGraw, 111 N. Y. 66, 19 In Pennsylvania, however, the doctrine N. E. Rep. 233. of Leazure -. Ilillc^ras, 7 S. & R. 313, and 2 In Matter of McGraw, 111 N. Y. 66, other cases following that, is that, al- 9.3, 9.5, 19 N. E. Rep. 233. See, also, though corporations ina}' take real estate Bank of Mich. v. Niles, 1 Doug. (Mich.) except for superstitious uses, they cannot 401, 41 Am. Dec. .575; and Wood v. Ham- hold it, in consequence of the statutes of mond, le R. I. 98, 119, 17 Atl. Rep. 324, mortmain ; l)ut, as the title has passed to 18 Atl. Rep. 198. The latter case, in the corporations, it must remain there which the same point was considered, until the State enforces the forfeiture. fully approves the decision in Matter of McGraw. 160 RESTKICTIOXS UPON DOMESTIC CORPORATIONS. [§ 181. stances under which lands are held by citizens of New York, where their tenure is so wholly different from that which pre- vailed in England when the early mortmain acts were enacted, render unv argument in regard to those acts and their effect to- tall v inapplicable to the case .of a corporation of this State. Tak- in" the law as it exists in our statutes, including the special i)rovision upon the subject; in the ciiarter of the university, it seems to me that the provision tlierein limiting the holding of property is, as I have said, a restriction also upon the power to take in excess of the specified amount. As, at common law, a corporation could take real property in the same way as an indi- vidual, the consequence was that, in England, large landed pos- sessions were held by religious corporations, and, by reason of alienations of real estate to them, the services due by the vassal to the lord were partially if not totally paralyzed, and the chief lords lost their escheats. Tiiis was a constantly growing and alarming evil. To remedy the difficulty, the first act was placed in Magna Charta, which declared all such alienations to corpora- tions entirely void, and that the lands should revert to the lord of the fee. It was held, however, that the reversion must be accom- plished by an entry, and then and from that time there was a for- feiture, the corporation having taken the title and held the prop- erty until such forfeiture by reentry. . . . There is, by reference to our laws, no such necessaiy and universal distinction between taking and holding property by corporations as is seen in the laws of England relating to alienations in mortmain. Whether tiie legislature, when using language providing for a limitation upon holding property, meant to permit an unlimited taking, is a question of legislative intent ; and I think the general inference would be, in the absence of some plain and contiolling circum- stance to the contrary, that the legislative body meant to limit a taking as well as a holding beyond the specified amount." 181. A deed to a corporation authorized for some purposes, or to a limited extent, to hold real estate, is not void though the lands were purchased for other purposes, or beyond the limit allowed. The deed passes the title as between the ])arties to the deed.i Whether the corporation has exceeded its powers in mak- 1 Dillon on Municipal Corporations, 4th S. (121, 628 ; Natoina W. & M. Co. v. Glar- ed. 574; Cowell v. Sprinj-s Co. 100 U. S. kin, 14 Cal. .544; Barnes v. Suddard, 117 55, 60; National Bank i'. Matthews, 98 U. 111. 237, 7 N. E. Rep. 477 ; Hamsher v, VOL. I. 161 § 182.] CAPACITY OF CORPORATIONS AS PURCHASERS. hv^ llio iuucliiiso Is a question which the State iilouo can inquire into in a direct proceeding- against the corporation. There is a presumption that a conveyance to a corporation is for a purpose for which it is autliorized to acquire and hold real property.' AVhen a corporation is limited to acquiring and holding lands to a certain value, any increase in the value of lands after they have been acquired, so that they afterwards exceed the prescribed amount in value, does not affect its title to such lands.^ II. Restrictions upon Foreign Corporations. 182. A foreign corporation, authorized to hold real estate by the State creating it, may purchase and hold real estate in another State in which it is permitted to transact business, un- less restricted or prohibited by the statute or manifest policy of the latter State. ^ Upon the principle of comity, a foreign corpo- ration may exercise within another State the general powers con- ferred by its own charter, provided these are not inconsistent with the laws or public policy of such other State.^ The law ol' comity Hamsher, 132 111. 273, 286, 23 N. E. Rep. 1123 ; Hayward v. Davidson, 41 Ind. 212; Bogardiis v. Trinity Church, 4 Sandf. Ch. 633 ; De Camp v. DoMiins, 29 N. J. Eq. 36, 31 N. J. Eq. 671, 691 ; Goundie v. North- ampton W. Co. 7 Pa. St. 233. Contra, St. Peter's Cong. v. Germain, 104 111. 440, 446, per Mulkey, J. 1 Yates V. Van De Bogert, .56 N. Y. 526 ; Farmers' L. & T. Co. v. Curtis, 7 N. Y. 466; Chautauqua Co. Bank tJ. Risley, 19 N. Y. 369 ; Ex parte Peru Iron Co. 7 Cow. 540; Lancaster v. Amsterdam Imp. Co. 140 N. Y. 576, 35 N. E. Rep. 964, 9 Am. R. R. & Corp. Rep. 155, 161 ; Alward v. Holmes, 10 Abb. N. C. 96; Farmers' & Millers' Bank v. Detroit, &c. R. Co. 17 Wis. 372; New England F. & M.Ins. Co. V. Robinson, 25 Ind. 536. 2 Bogardus ;; Trinity Church, 4 Saudf. Ch. 633 ; Humt)crt v. Trinity Church, 24 Wend. 587, 639. 3 Barnes v. Suddard, 117 111. 237, 7 N. E. Rep. 477, 13 Am. & Eng. Corp. Cas. 7 ; Santa Clara Academy v. Sullivan, 116 111. 375, 6 N. E. Rep. 183, 56 Am. Rep. 182 776, 13 Am. & Eng. Corp. Cas. 11; White V. Howard, 38 Conn. 342 ; New Hampshire Land Co. v. Tilton, 19 Fed. Rep. 73 ; Lumbard v. Aldrich, 8 N. H. 31, 28 Am. Dec. 381 ; Carlow v. Aultman, 28 Neb. 672, 44 N. W. Rep. 873 ; Newburg Petroleum Co. v. Weare, 27 Ohio St. 343 ; Alward v. Holmes, 10 Abb. N. C. 96; Claremont Bridge v. Royce, 42 Vt. 730; State V. Boston, C. & M. R. Co. 25 Vt. 433; Taylor v. Alliance Trust Co. 71 Miss. 694, 15 So. Rep. 121; Missouri Lead Min. Co. v. Reinhard, 114 Mo. 218, 21 S. W. Rep. 488. * Christian Union v. Yount, 101 U. S. 352 ; Cowell v. Springs Co. 100 U. S. 55 ; Runyan v. Coster, 14 Pet. 122; Bank of Au},Mista V. Earle, 13 Pet. 519, 592 ; New Hampshire Land Co. v. Tilton, 19 Fed. Rep. 73 ; Northern Transp. Co. v. Chicago, 7 Bi.'. Graves, 108 111. 4.')9 ; Clare- mont Bridge Co. ?'. Royce, 42 Vt. 730; RESTRICTIONS UPON FOREIGN CORPORATIONS. [§ 183. between States will not autliorize a corporation to exercise powers witliin the State whicli a domestic corporation would not be per- niitted to exercise under the Constitution and policy of the State.i But on the otlier hand, the rule is almost universal that a foreign cor| oration may transact, in pursuance of its charter, any business which the laws and policy of a State encourage a domestic cor- poration to engage in, and may exercise any powers which such domestic corpoi-ation might exercise.^ 183. What the public policy of a State is upon this matter is determined by its constitution, laws, and judicial decisions.^ If the Constitution and laws of a State are silent, it may properly be inferred that the general law of comity between States lias scope for operation, and that a foreign corporation legally constituted, with sufficient chartered powers, may acquire and hold lands in the State of its domicile.^ The fact that foreign corporations have in particular cases pro- cured acts enabling them to hold real estate, the general laws being silent on the subject, does not disprove the general right Thompson v. Waters, 25 Mich. 214, 223, 12 Am. Rep. 243, per Christiancy, C. J. ; Taylor v. Alliance Trust Co. 71 Miss. 694, 1.5 So. Rep. 121 ; Whitman Mining Co. V. Baker, 3 Nev. 386 ; Tarpey v. Des- eret Salt Co. 5 Utah, 494, 17 Pac. Rep. 631 ; Fisk v. Patton, 7 Utah, 399, 27 Pac. Rep. 1 ; Connecticut Mut. L. Ins. Co. v. Cross, 18 Wis. 109; Reorj^anized Church V. Church of Christ, 60 Fed. Rep. 937, 941. 1 Clarke v. Central R. Co. 50 Fed. Rep. 338. ■^ Taylor v. Alliance Trust Co. 71 Miss. 694, 15 So. Rep. 121. 3 Vidal V. Girard, 2 How. 127, per Story, J. * Lancaster v. Amsterdam Imp. Co. 140 N. Y. 576, 35 N. E. Rep. 964, per Gray, J.; Bard i;. Poole, 12 N. Y. 495; Taylor ;;. Alliance Trust Co. 71 Miss. r.94, 15 So. Rep. 121 ; Lebanon Sav. Bank V. Ilollenheck, 29 Minn. 322, 13 N. W. Rei>. 145 ; New York Dry Dock v. Ilicks, 5 McLean, 111; Missouri Lead Co. v. Rein- hard, 114 Mo. 218, 21 S. W. Rep. 488; Reorganized Church v. Church of Chri.st, 60 Fed. R<'p. 937, 941. In Lancaster v. Amsterdam Imp. Co. 140 N. Y. 576, 35 N. E. Rep. 964, Mr. Justice Gray said : " If we turn to the decisions of this court in our investigation of what has been the public policy of this State towards foreign corporations, we find them interpreting and applying the principle of state comity in the broad- est spirit. In People v. Fire Association, 92 N. Y. 31 1, it was observed that ' where a State does not forfiid, or its public pol- icy, as evidenced by its laws, is not in- fringed, a foreign corporation may trans- act business within its boundaries, and be entitled to the protection of its laws.' In Mollis V. Drew Seminary, 95 N. Y. 166, it was held that, ' unless the legislature forbids, they [foreign corporations] can come here as freely as natural persons, and exercise here all the powers conferred upon them by their charter, subject to the limitation imposed upon natural persons, that is, they can do no acts in violation of our laws, or of our public policy ; but, unless prohibited by law, they can do here, within the limits of their chartered powers, ])recisely what domestic corpora- tions can do.' " 163 ^§ 184, 185.] CAPACITY OK CORPORATIONS AS PURCHASERS. of such 0(>ri)i)ratiinis to hold himl without such cnubling nets, nor does it show that th.' public policy is against such gc-ncral right. ^ 184. The policy of a State not to allow foreign corpora- tions to acquire and hold real estate must be expressed in some aflfirmative way by the legislature. Though it is provided thai fori'ign eor[)()rations shall exercise no greater or different powei's than those exercised by domestic corporations, the fact that the legislature has made no provision for the formation of cor- porations authorized to loan money, and take mortgages upon real property to secure them, is no indication of a policy to prohibit tlie exercise of these powers by a foreign corporation organized for such purpose.^ Under a statute which provides that foreign corporations shall not acquire and hold real estate unless specially authorized to do so, a purchase by a railroad company, by legislative authority, of the stock of a raining company authorized by law to hold real estate is not invalid, and the land cannot be forfeited to the State under a proceeding for that purpose.^ Although a constitutional provision prohibits a non-resident railroad company from acquiring lands for the use of the road by condemnation or appropriation, still it may acquire such lands by purchase.^ 185. Any State may repeal, restrict, or refuse to recognize this law of comity, for foreign corporations are not citizens within the meaning of the Constitution of the United States, and 1 Lancaster u. Amsterdam Imp. Co 140 privileges had never been accorded by N. Y. .576, 35 N. E. Rep. 964. Illinois to her own domestic corporations, 2 Cowell V. Springs Co. 100 U. S. 55 ; and were inconsistent with her settled Christian Union i;. Yount, 101 U. S. 352 ; public policy against perpetuities, as indi- Hards v. Conn. Mut. L. Ins. Co. 8 Biss. 2.34 ; cated, not by express enactment, but with Stevens v. Pratt, 101 111. 206, overruling absolute certainty, by the general course United States Mortg. Co. v. Gross, 93 111. of its legislation from the very orgauiza- 483. The latter case was decided on the au- tion of the State. This decision is dis- thority of Carroll v. East St. Louis, 67 111. carded by the decisions of the Supreme 568. In that case it was held that a for- Court of the United States, and by the <'ign corporation, created for the sole pur- later decisions in Illinois. po>e of buying and selling lands, had no ^ Commonwealth v. New York, &c. R. power to purchase and hold lands in Illi- Co. 132 Pa. St. 591, 19 Atl. Rep. 291, re- Dois ; that such corporation, if permitted affirmed 139 Pa. St. 457,21 Atl. Rep. 528, to exercise its functions in Illinois to the reversing 114 Pa. St. 340, 7 Atl. Rep. 756, full extent authorized by its charter, could 15 Am. & Eng. Corp. Cas. 410. acquire lands without limit as to quantity, * St. Louis & S. F. R. Co. i;. Foltz, 52 and hold them in perpetnitv ; that such Fed. Rep. 627. 164 RESIRICTIONS UPON FOREIGN CORPORATIONS. [§ 186. ;ire not entitled to tlie protection guaranteed to citizens.^ Under u statute which provides tliat no corporation shall have power to enter into the business of buying and selling real estate, a for- eign corporation which engages in this business and buys real estate in the name of a trustee acquires the beneficial interest in such land and may enforce the trust. '-^ 186. A foreign corporatioa may take a mortgage to secure a demand on ■which it could maintain an action, thoutrh it is not authorized by its charter, or by the laws of the TState in which it is acting, to take mortgages or hold real propert}.-^ A foreign corporation may take a mortgage as additional secu- 1 Elston V. Piggott, 94 Ind. 185; Car- roll 1-. Ea.st St. Louis, 67 111. 568, 16 Am. Rep. 632; United States Trust Co. v. Lee, 73 111. 142, 24 Am. Rep. 236 ; U. S. Mortj;. Co. v. Gross, 93 111. 483, 493. - Fisk V. Prttton, 7 Utah, 399, 27 Pac. Rep. 1. See Carroll i: East St. Louis, 67 111. 568, where it was held that a foreign corporation, organized for this purpose, could not take title in Illinois, this being in contravention of the policy of the law of that State. In Bard r. Poole, 12 N. Y. 495, upon the question of the right of a coriioration of the State of Maryland to take mortgages of real estate within the State of New York, the Court of Appeals of the latter State said : " Any of the States of the Union may, as tliis and sev- eral of the otiier States have done, inter- dict foreign corporations from performing certain single acts, or conducting a par- ticular d.:scription of business, within its jurisdiction. But in the absence of laws of that character, or in regard to transac- tions not within the purview of any pro- hiijitory law, and not inconsistent with the jiolicy of the State as indicated by the general scope of its laws or institutions, corponitions arc permitted by the comity of nations to make contracts and transact business in other States than those by \irtue of whose laws they were created, and to enfoice tliosc contracts, if need be, in the courts of such other States. It is, of course, implied that the contract innt be one wiiich the foreign corporation is permitted by its charter to make ; and it must also be one which would be valid if made at the same place by a natural per- son not a resident of that State.'' In United States v. Fox, 94 U. S. 315, 320, holding void a devise of land to the United States, Mr. Justice F'ield said : " The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and trans- fer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established princi- ple of law, everywhere recognized, arising from the necessity of the case, that the dis- position of immovable property, whether by deed, descent, or any other mode, is exclusively sul)ject to the government within whose jurisdiction the property is situated." Athrming Matter of Will of Fox, 52 N. Y. 530, 63 Barb. 137, 11 Am. Rep. 751. 3 American Mut. L. Ins. Co. v. Owen, 15 Gray, 491 ; Lebanon Savings Bank v. Ilollenheck, 29 Minn. 322; Columbus Buggy Co. V. Graves, 108 III. 459; Silver Lake Bank v. North, 4 Johns. Ch. 370 ; Farmers' Loan & T. Co. v. McKinney, 6 McLean, 1 ; New York Dry Dock Co. v. Hicks, 5 McLean, 111 ; Connecticut Mut. L. Ins. Co. V. Cross, 18 Wis. 109; Con- necticut Mut. L. Ins. Co. V. Albert, 39 Mo. 181 ; Elston V. PigL'Ott. 94 Ind. 14; Lumbard r. Akhich, 8 N. II. 31, 28 Am. Dec. 381. 165 § KST.J CAI'ACIIV OF COIU'OI.'ATIONS AS rURCHASERS, lily, tli(>UL;li iLs c'liaiU-r does not autliovizo it to take mortgages in allot Ikt Stale. riiiis, wlicre a New ^'ork corjioiation was uutlior- izeil by its charter to take 'Mnortgages on uniiicuinbered real estate in the State of New York worth doiibh; tlie aiuouiit loaned thereon,** it may take a mortgage of hind in New Jersey to secure a loan ah-eady legitimately made to the mortgagor. If it be conceded that the charter forbids the making of an invest- ment on a mortgage of real estate not in the State of New York, it does not {)rohibit the taking of further security for an invest- ment already made within the authority of the charter.' One who deals with a foreign corporation by borrowing money of it, and giving a mortgage as security, is estopped to claim that it had no authority to take mortgages in that State, and cannot set up this answer in a foreclosure suit upon the mortgage.^ 187. In a few States foreign corporations have at different times been prohibited from making loans and taking security upon real estate therefor. A mortgage within such a prohibi- tion is invalid from its delivery, and consequently a sale and con- veyance under it is nugatory, and does not divest the owner of his interest in the mortgaged premises.'^ A constitutional or statutory provision that no foreign corpora- tion shall do "any business " in a State, without having at least one known place of business and an authorized agent therein, is violated by a single act of making one loan of money, and taking a mortgage to secure it, by a foreign corporation engaged in the business of loaning money on mortgages, when it has no place of business or agent in the State. In such case the promise of the mortgagor to pay is void, and a bill to foreclose the mortgage cannot be maintained.'^ In a suit under such a provision to fore- 1 National Trust Co. v. Murphy, 30 Assurance Co. 6 Bradw. 551 ; United N. J. Kq. 408. States Mortf^age Co. v. Gross, 93 111. 2 Pancoast v. Traveller's Ins. Co. 79 483. And sec Hards r. Conn. i\Iut. L. Ind. 172; Leasiire v. Union Mut. L. Ins. Ins. Co. 8 Biss. 234. In Pennsylvania a Co. 91 Pa. St. 491. foreign corporation may enforce a mort- ^ Alabama: Const. § 4, art. 14; New gage upon lands in that State. Leasure England Mortg. Co. v. Powell, 94 Ala. v. Union Mut. Life Ins. Co. 91 Pa. St. 423, 10 So. Rep. 324, 97 Ala. 483, 12 So. 491. Rep. 55. Illinois : Prior to the act of < Farrior v. Security Co. 88 Ala. 275, 1875 (Laws of 1875, \). 65) repealing the 7 So. Rej). 200, 92 Ala. 176, 9 So. Rep. former statute, and confirming and vali- 532 ; Dudley v. Collier, 87 Ala. 431, 6 So. dating prior loans made in contravention Rep. 304. of it. Scammon v. Commercial Union 166 RESTRICTIONS UPON FOREIGN CORPORATIONS. [§ 188. close a corporate mortgage, the complaint must aver that the corporation was authorized to do business in the State at the time the mortgage was executed and delivered. A complaint which states that complainant has complied with the laws of the State which authorize a foreign corporation to do business in the State, and that the mortgage sued on was executed and delivered in the State, is not sufficient. ^ But though a mortgage was originally invalid by reason of the failure of the mortgagee, a foreign cor- poration, to comply with such laws, after the contract evidenced by the mortgage has been fully executed by a sale and convey- ance under the mortgage the mortgagor cannot thereafter avail himself of the objection.'-^ 188. lu many of the States foreign corporations are, by statute or by public policy, placed upon an equal footing with domestic corporations as to the transaction of corporate busi- ness and the holding of real property. In only a part of the States are there statutes expressly conferring or restricting the power of such corporations to acquire and hold landr^ and where 1 Mullens V. Mortgage Co. 88 Ala. 280, 7 So. Re]i. 201. •■i Gamble v. Caldwell, 98 Ala. 577, 12 So. Rl-p. 424. ^ Arizona T. : Any foreign corporation, upon complying with the laws in respect to transacting business in the Territory, may acquire, hold, and dispose of all kinds of real and per.sonal property, and enjoy the same rights and privileges that do- mestic corporations have ; provided that no such corporation shall hold or own at any one time more than three hundred and twenty acres of laud, exclusive of mines and mineral lands, and land neces- sary fi)r reducing or working ores, or for manufacturing or commercial purposes. R. S. 1887, § 3.52. Colorado: Shall not hold real estate except such as may he iicces-ary, as for the transaction of its business. Annot. Stats. 1891, § 499. Georgia: Shall not own more than five thousand acres of land in this State, ex- cept upon the condition of becoming a corporation under the laws of the State. This provision does not ajiply to any cor- poraiion engaged in the bnsinr.ss of lend- ing money on real estate, nor to any such corporation which, holding a lien upon real estate for security, is compelled to become the purchaser of such real estate. Laws 1893, p. 33. Idaho : Have all the rights and privileges of domestic corpora- tions, including the right to exerci.se the right of eminent domain. R. S. 1887, § 2653. Illinois : Are subjected to all the liabilities and restrictions imposed upon domestic corporations of like character, and have no other or greater powers. R. S. 1889, ch. 32, § 26; Stevens i'. Pratt, 101 111. 206, 217; Santa Clara Female Academy r. Sullivan, 116 III. 375, 6 N. E. Rep. 183. Indiana: The right to hold titles to or liens upon real estate is made conditional upon their complying with the laws of the State in regard to appointing an ai^ent within the State. Annot. Stats. 1894, §3461. Iowa: Cannot exercise the ri;;ht of eminent domain, or auy of the rights and privileges conferred upon do- mestic corporations, until they have re- ceived permit to transact business in the State. Annot. Code 1888, § 1642. Ken- tucky: Are subject to the laws relating to 107 § 1>'-^-] CArACITY OF CUKI'OIJATIONS AS I'UHCHASERS. tlu'it' are no statutes upon the subject, the liglit of comity is generally recognized. 189. The power and right of a foreign corporation to acquire and hold real property is determined by its charter and the laws of the State in which the property is situated.^ The laws of the State in which tlio corporation was organized are not recognized as ali'eeting the capacity of the corporation in this respect. '' A corporation ' must dwell in the place of its creation, and ciinnot migrate to another sovereignty,' ^ though it may do doinesiic relations of similar character. No fora<;u railroad company is entitled to the benefit of eminent domain, or has power to acquire real estate, nntil it shall have become a body corporate under the laws of the State. Const. 1891, §§ 202, 211; G. S. 1894, pp. 139, Ul. Massa- chusetts : Cannot engage in any kind of business the transaction of which by do- mestic corporations is not permitted. Acts 1894, ch. 381. Manufacturing corpora- tions which have complied with Acts 1884, ch. 330, may purchase and hold such real estate as may be necessary for conducting their business. Acts 1888, ch. 321. Min- nesota : P"oreign corporations created for the jiurpose of buyiui;- and selling lands cannot hold more than one thousand acres, and must sell the same within twenty-one years, excejjt that lands acquired under mortgage foreclosure must be disposed of within fifteen years. G. S. 1894, § 3420. Nebraska : Foreign corporations become domestic corporations upon filing the pr()j)er certificate. Com p. Stats, ch. 16, § 21.5. New Hampshire: Foreign man- ufacturing companies may acquire, hold, and convey real and per-sonal property. P. S. 1891, ch. 148, § 21. New Jersey: May acquire, hold, mortgage, and convey real estate necessary for its business, or acqinred by way of mortL'age or in pay- ment of debts. R. S. 1877, Corj). Acts, § 99 ; Laws 1887, p. 157. New Mexico T. : Shall not hold real estate except as pro- vided in relation to domestic eor])orations. Corp. Laws 1884, § 218. New York: Any forei;;n corporation doing business in this State mav acquire such real projierty as 168 may be necessary for its corporate pur- poses, and may convey the .>-ame in the same manner as a domestic corporation. Such corporation may purchase, at a sale upon foreclosure of a mortgage held by it or upon a judgment, any real property, and may hold the same for not exceeding five years. Laws 1892, ch. 687, §§ 17, 18. North Dakota, Oklahoma, and South Da- kota : (,'aiinot acquire, hold, or dispose of real or personal property until it has tiled a copy of its charter. G. S. 1893, §1167; Comp. Laws Dak. 1887, §3190. Pennsyl- vania : Foreign corporations may become corporations of the State under the pro visions regulating corporations of the same class. Brightly's Purdou's Dig. 1894, p. 937. Tennessee : May hold real estate necessary or suitable for carrying on the business specified in tlie charter. Code 1884, § 1995. Washington: Have full power to acquire, hold, mortgage, and con- vey all real estate necessary or convenient to carry into effect the purposes of the corporation. G. S. 1891, § 1524. West Virginia : Have the same powers and priv- ileges, and are subject to the same restric- tions, as domestic corporations. Code 1891, ch. .54, § 30. 1 Tarpey v. Deseret Salt Co. 5 Utali, 494, 17 Pac. Re]). 631 ; White v. Howard, 38 Conn. 342 ; Thompson /'. Waters, 25 Mich. 214, 12 Am Rep 243; Nicholson V. Leavitt, 4 Sandf. 272, 276 ; Slierwood v. American Bible Soc. 4 Abb. App. Dec. 227. 2 Bank of Augusta i;. Earle, 13 Pet. 519, 588. RESTRICTIONS UPON FOREIGN CORPORATIONS. [§ 189. business in all places where its charter allows and the local laws do not forbid.^ But wherever it goes lor business it carries its charter, as that is the law of its existence, ^ and the charter is the same abroad that it is at home." ^ If a foreign corporation is limited by its charter as to its power to acquire and hold land, the courts of another State where it ac- quires land may undoubtedly enforce this limitation, though it would seem tliat the legislature of the latter State might empower . sucii corporation to acquire and hold land without limit in tiiat State.* In the latter case the title to the laud acquired would pass to the Corporation, and it would be for the State under whose laws it was organized to enforce the restrictions imposed by its laws. But it is for the courts of the State in which the land is situated to determine not only its capacity under the laws of that State to acquire and hold real estate, but also its capacity to do so under its charter. An adjudication upon the question of its corporate capacity by a court of another State has no further effect or authority than the reasoning upon which it may have been fininded gives it.^ Where a foreign corporation is by its charter competent to take land, the statute of wills of the State in which it was created, pro- hibiting devises of the lands to corporations, does not prohibit it from taking and holding land in another State by devise of one of its own citizens. Such a statute defines the capacity of testa- tors and not of corporations.^ Where the charter of a foreign corporation is sufficiently broad to confer upon it the capacity to take and hold real estate by devise, though not expressly so authorized, the statute of wills of the State where the corporation was created, providing that " no devise of real estate to a corpora- tion shall be valid unless such corpoi'ation be ex[)ressly author- ized by its cliai-ter or by statute to take by devise," is operative only in that State, and does not affect the capacity of the corpora- tion t(j take by devise in another State." 1 Railroad ''. Koontz, 104 U. S. 5, 12. *■' Thompson v. Rwoope, 24 Pa. St. 474. 2 Relfei\ Rundcl, 103 U. S. 222, 22(). And see Ilollis v. Drew Theoloj,ncal Sem- ^ Canada Southern R. Co. v. Gebhard, inary, 95 N. Y. Kifi. 109 U. S. .527, .537, 3 S. Ct. Rep. 363, ' American Bible Soc. v. Marshall, 15 per Waite, C. J. Ohio St. .'j.'?7. * Whitman Mining Co. v. Baker, 3 There are a few cases, however, in Nev. 38f). which it has been said that a devise to a ^ Boyce v. St. Louis, 29 Barb. 650. forei<;n corporation, void by the laws of 169 § llH).] C.VrACITY OF CORPORATIONS AS PURCHASERS. 190. The question whether a foreign corporation can ac- quire and hold land is a question "which can be determined only by the State in a proceeding instituted for that purpose. ^ The rule is the sume us that which prevails as to domestic cor- porations, when the question is raised whether they have exceeded their corporate powers.'-^ Even in case a foreign corporation is piohibited from acquiring and holding real estate, the State alone can object to the legal capacity of the corporation to take and hold real estate.^ Whether the right of a foreign corporation to hold lands arises under the terms of its charter, or of the laws of the State under which it is organized, or whether it arises with* reference to its authority under the laws of the State in which the lands are situated, the right can be questioned only by the State itself in which the land is situated.* By the Constitution of the State of Nebraska, no foreign rail- road corporation has power to acquire land for any purpose until it has become a body corporate under the laws of that State ; but a conveyance of land to the Union Pacific Railway Company, which had not complied with this provision, and was therefore in- competent to take title, was held to be voidable only and not void. The title of the company, it was declared, was valid against every one but the State, and could not be questioned by any one in a suit in ejectment brought against the company.^ the State where it was organized, is void Barnes v. Suddard, 117 111. 237, 7 N. E. in another State in which the testator re- Rep. 477 ; Alexander v. Tolletson Club, sided and was a citizen ; that such statute 110 111. 65; Silver Lake Bank i-. North, affects the power to take as well as the 4 .Johns. Ch. 370, per Chancellor Kent; power to devise. Kerr y. Dougherty, 79 American Mortg. Co. v. Tcnnille, 87 Ga. N. Y. 327 ; Boyce v. St. Louis, '29 Barb. 28, 13 S. E. Rep. 158; O'Brien v. Weth- 650; Starkweather v. American Bible erell, 14 Kans. 616; Leasure v. Union Sue. 72 111. 50, 22 Am. Rep. 133. The Mut. L. Ins. Co. 91 Pa. St. 491 ; Grant latter case was overruled in Santa Claia r. Henry Clay Coal Co. 80 Pa. St. 208; Female Academy v. Sullivan, 116 111. 375, Leazure v. Hellegas, 7 S. & R. 313. 6 N. E. Rep. 183, 56 Am. Rep. 776, and - § 175. the New York cases are not regarded now ^ Hickory Farm Oil Co. v. Boston, N. a.^ good law. Y. & P. R. Co. 32 Fed. Rep. 22 ; Carlow 1 Cowell V. Springs Co. 100 U. S. v. Aultman, 28 Neb. 672, 44 N. W. Rep. 55 ; Seymour v. Slide & Spur Gold 873. Mines, 153 U. S. 523, 14 Su]). Ct. Rep. ■* American Mortg. Co. u. Tennille, 87 847; Fritts v. Palmer, 132 U. S. 282; Ga. 28, 13 S. E. Rep. 158. Runyan v. Coster, 14 Per. 122 ; Reorgan- ^ Myers )•. McGavock, 39 Neb. 843, 58 ized Church u. Church of Christ, 60 Fed. N. W. Rep. 522. The court say : " The Rep. 937 ; Hickory Farm Oil Co. >•. Buf- Union Pacific Railway Company, liccmise falo, N. Y. & P. R. Co. 32 Fed. Rep. 22 ; it took title to this property in vii)!atif law, whether the person attempting kins (Texas Civ. App.), 26 S. W. Rep. . s^ati'il ill this notion. Sucli laiul \v;is conveyed to it by u person witli wlioiu the defendants had no connection, and under whom they asserted no rights. As the plaintiff was a corporation com- petent to hoUl hmd, the conveyance to it of that in controversy passed the title. It had capacity to take the title, and to hold the land against any person but the State, Whether it can hold against the sovereign is a question which can be decided only in a proper proceeding instituted for that purpose," 192. The question -whether a foreign corporation is violat- ing a local statute in acquiring real estate is one whicli belongs to the State alone, which may dispute or prevent such usurpation of power or may acquiesce in it, A provision of the Constitution of Missouri that " no religious corporation can be established in this State, except such as may be created under a general law» for the purpose only of holding title to such real estate as may be prescribed by law for church edifices, j)arsonages, and cemeteries," does not prohibit the existence of such corporations, nor deny their rigiit to hold real estate. It limits their creation to a general law. The fact that the legislature of the State has not prescribed the quantity of real estate to be held by such corporations affords no ground for claiming that the State has I'efused to recognize the right of foreign religious corporations to hold land in the State. The court will not undertake, in a collateral proceeding, to determine whether the land acquired by such a corporation was necessary for the purpose declared by the Constitution.^ The acts of a foreign corporation duly organized, which under- takes to transact business in a State without having com | lied with the Constitution and laws of that State in relation to trans- acting business and owning and disposing of property, are not void, and cannot be questioned or determined collaterally. It rests with the State in a direct proceeding to prevent the corpo- ration from exercising its franchises within the State until it has fully complied with its Constitution and laws.^ Thus an individual dealing with a foreign corporation, whicli is authorized to acquire such real property as may be necessary for its corporate purposes, cannot object to its title to land on the ground that it has exceeded its authority by engaging in the busi- 1 Reorganized Church v. Church of W. Kep. 706, aud on rchearinjj, 55 N. W. Christ, 60 Fed. Rep. 937. Rep. O-'U. 2 \Vri;;ht v. Lee, 2 S. D. 596, 51 N. 172 RESTRICTIONS UPON FOREIGN CORPORATIONS. [§ 192. ness of buying and selling real property, when the laws of the State under which it was organized conferred some authority to engage in such business, or to acquire and convey land. It is for tlie State under whose laws the corporation was created to inquire into any excessive use of its corporate powers. It is for the State where the foreign corporation is transacting business to inquire whether it is violating the laws of that State in engaging in the business of buying and selling land. " It is not for the party contracting for the conveyance of its land to i-aise the question of how far his grantor ma}^ have exceeded the authority given by the statutes of the State, any more than he might with respect to an alleged abuse of the powers conferred by its home charter. Those are questions between the corporation and the govern- ment." 1 ^ Lancaster v. Amsterdam Imp. Co. 140 reversing 72 Hun, 18, 25 N. Y. Supp. N. Y. 576, 35 N. E. Rep. 964, 9 Am. R. 309. R. & Corp, Rep. 155, 161, per Gray, J., 173 BOOK 11. ESTATES m FEE AND THEIR TRANSFER BY DEED. CHAPTER XIII. DEEDS OF CONVEYANCE AND THETR FORMS. XIV. PARTIES TO DEEDS AND THEIR DESCRIPTION. XV. RECITALS IN DEEDS. XVI. CONSIDERATION. XVII. OPERATIVE WORDS. XVIII. DESCRIPTION AND BOUNDARIES. XIX. EXCEPTIONS AND RESERVATIONS. XX. HABENDUM, OR THE ESTATES CREATED. XXI. CONDITIONS PRECEDENT AND SUBSEQUENT. XXII. RESTRICTIONS AS TO THE USE OF LAND. XXIII. COVENANTS FOR TITLE. XXIV. SIGNING. XXV. SEALING. XXVI. ATTESTATION. XXVII. ACKNOWLEDGMENT. XXVIIL DELIVERY. XXIX. DELIVERY IN ESCROW. XXX. FILLING BLANKS AND MAKING ALTERATIONS AFTER EXECUTION. XXXI. RECORDING. XXXIL NOTICE. BOOK II. ESTATES JN FEE AND THEIR TRANSFER BY DEED. CHAPTER XIII. DEEDS OF CONVEYANCE AND THEIR FORMS. 193. It is probable that transfers of land were originally made by means of the delivery upon the land of something pertaining to it, such as a piece of turf, or a bough from a tree, accompanied by words signifying an intention to transfer the land. In the times of the Anglo-Saxons in England, before the Norman Conquest, grants of public land were made by the king as the chief of the community, with the assent of his witan, by means usually of a "book" or charter. The land thus granted was called bocland or bookland. Whether the land was actually considered as transferred by the book, as in modern conveyances, is uncertain, but the analogy of the practice of other nations would seem to show that something in the nature of a symbolical delivery would be considered essential.^ 194. When land in England, after the Norman Conquest, came to be held by feudal tenure, it was transferred by livery of seisin without a deed, a custom in imitation of the ancient feudal investiture. The two essential elements of a conveyance of a freehold interest in it were, first, a formal delivery of pos- session, called livery of seisin ; and, second, words accompanying such delivery indicating the nature and extent of the grantee's interest and the service to be rendered for it.^ Tiiis mode of 1 Digby's Hist, of the Law of Real If the rightful freeholder was ousted ProjKTty, 4th ed. 13 and note. and in fact lost his possession, he was dis- ■^ Digby's Hist, of the Law of Real seised, or put out of seisin, and the wrong- Property, 4th ed. 49. Seisin means pos- doer or disseisor was seised in his place, session, as of freehold, that is, the posses- liolding by wrong the estate from which sion which a freeholder coiiM assert and he had ousted the rightful possessor." maintain by apjjcal to law. "There was a Digby's Hist, of the Law of Real Prop- seisin as of right, and a sei-.iii a-^'if wrotig. erty, 4th ed. 108. VOL. I. 177 § 11)5.] DEEDS OF CONVEYANCE AND THEIR FORMS. conveviiii;' land was tortued a feoil'mcnt. 'I'lie grantor was the ft'olTor, the grantee the feoffee. Livery of seisin was made either by the feoffor or by his deputy. The delivery of something on the hind was not an essential part of the ceremony ; but it was essential to an actual delivery of j)Ossessi()n, or livery in deed, that the parties should be actually present on the land, and that possession should be delivered either by act or word. A livery in law took place when the transaction was made in sight of the land but not upon it, and was followed by an entry of the feoffee during the lifetime of the feoffor.^ Notoriety was given to the transaction by making delivery upon the land, and much importance was attached to this. " That all the neighbors might know that A was tenant to B from the fact that open livery of seisin had been made to him, was of the utmost importance to B, in order to protect him and enable him to assert his rights as lord." ^ 195. Sometimes livery of seisin "was accompanied by the delivery of a deed, which served to define more accurately the nature and terms of the transfer, but no deed was necessary ; and wiien it was used the lands were supposed to be transferred, not by the deed, but by the livery .^ The apt words of conveyance in a deed of feoffment were "give and grant." The conveyance was primarily a gift, the only consideration being the feudal ser- vice which the feoffee was expected to render to the feoffor.* While it was not essential that the words of gift or transfer should be embodied in a deed, it was usual to execute a charter of feoffment, in order to preserve the evidence of the grant. Bracton gives a specimen of such a charter.^ 1 Co. Litt. 48 6; Digby's Hist, of the a township, to have and to hold to C D and Law of Real Property, 4th ed. 146. his heirs (either generally or with some - Digby's Hist, of the Law of Real limitation of heirs) or assigns, freely and l^roperty, 4th ed. 146. peaceably, rendering for the same so much 3 iMcCabe v. Hunter, 7 Mo. .35.5. by the year at such and such fixed terms, * Poe V. Domec, 48 Mo. 441,443, per and performing fur the same such services Bliss, J. and such customs in lieu of all service ^ Bracton, lib. ii. ch. 16, fol. 346. It is custom, secular exaction, and demand," in the following words : " Know all per- by which general expression it apjtears sons, now and hereafter, that 1, A B, have that all other articles, customs, and seen- given and granted, and by this present lar demands which belong to the lord charter of mine have confirmed to C D, from the tenement are exjjressly released, in return for his homage and service, so although no express words to this effect much laud, with its appurtenances, in such are contained in the charter. 178 DEEDS OF CONVEYANCE AND THEIR FORMS. [§§ 196, 197. 196. But a deed alone was ineffectual to transfer the title. " A gift is not valid," said Bracton, writing in the time of Henry III.,^ "'unless it be followed by delivery of possession, because the subject of the gift is not transferred by homage, or by the execution of deeds or instruments, although they may have been read in public." The following from a recent judgment by Lord Justice Fry illustrates the importance formerly attached to the delivery of possession, or the livery of seisin: "In Bracton's day, seisin was a most important element of the law of property in general; and, however strange it may sound to jurists of our day and countr}^ the lawyers of that day applied the term as freely to a pig's ham as to a manor or a field. At that time the distinc- tion between real and personal property had not yet grown up : the distinction then recognized was between things corporeal and things incoi-poreal ; no action could then be maintained on a con- tract for the sale of goods, even for valuable consideration, unless under seal ; the distinction so familiar to us now between con- tracts and gifts had not fully developed itself. The law recog- nized seisin as the common incident of all property in corporeal things, and tradition, or the delivery of that seisin from one man to another, as essential to the transfer of the property in that thing, whether it were land or a horse, and whether by way of sale or of gift, and whether by word of mouth or by deed under seal. This necessity for delivery of seisin has disappeared from a large part of the transactions known to our law, but it has survived in the case of feoffments." ^ 197. After a time a writing or deed in connection with, a feoffment became more and more important, and served to declare uses and trusts, and to record the limitations of the estates transferred. Finally, by the statute of frauds,^ a feoffment made by livery of seisin onl}^ and not accompanied b}' an instru- ment in writing signed by the feoffor, or his agent lawfully au- thorized in writing, had the effect of creating an estate at will only.^ An incorporeal right or easement could be created and conveyed only by deed. In the language of the common law an incorpo- 1 Bracton, lib. ii. ch. 18, fol. 39. ■* Bytliewood & Jarman's Conveyan- ^ Cochrane v. Moore, 25 Q. B. Div. 57, cing, 4tli ed. vol. v. p. 3. So by statute in 65, per Fry, Lord Justice. many American States. 8 29 Charles II. ch. 3. 179 §§ 108, 100.] DKKDS OF CONVEYANCK AND THEIB FORMS. real horoditanient was saiil to lie in grant, ant! could not be created or ti'ansferred, as lands couKl be, by livery of seisin. 198. The Statute of Uses. — In equity the jicrfoiinance of any use declared upon the feoll'nient could be enforced, and ad- vantage was taken of this means by the monasteries and other religious corporations to evade the mortmain laws, and to keep secret the actual benelicial ownership of land. The pi-eamble of the Statute of Uses ^ recites at length the evils of this practice, declaring that "divers and sundry imaginations, subtle inven- tions, and practices have been used, whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances craftily made to secret uses, intents, and trusts." The statute transferred the estate, title, right, and possession, that was in the person legally seised of the land to the use of another person, directly to such other person. It made the beneficial owner the legal owner. The purpose of the statute was to compel all conveyances to be made directly to the beneficial owner, in order that the king and lords might not be deprived of the profits and advantages to which they were entitled under the feudal system. It failed in the pur- pose, because the courts of equity decided that the statute, having operated once in executing the use and turning it into a legal seisin, was ihenceiovih functus officio. It therefore became possible, by the addition of a further use, to create trust estates with the same facility as before. The courts favored less restricted dealings with land, and in this instance, as in others, found means to nul- lify feudal legislation.^ The consequences of the Statute of Uses have been great and far-reaching. " They continue to the present day. What may be called the modern law of real property, and the highly tech- nical and intricate system of conveyancing which still prevails, dates from the legislation of Henry VIII."'' 199. The deed of lease and release had its origin in the Statute of Uses. It was a contrivance to avoid livery of seisin and the restrictions of the statute. A lessee for years having entered into possession of the land, though he was not considered as having feudal seisin, had the actual possession, so that there 1 27 Henry VIII. ch. 10. ^ Digby's Hist, of the Law of Keal 2 5 Bythewood's Precedeuts, 4th ed. Property, 4th ed. 345. 4-7 ; Croxall v. Sheran], 5 Wall. 268. 180 DKKDS OF CONVEYANCE AND THEIR FORMS. [§ 200. was no occasion for any livery of seisin, nor would such livery be possible unless he surrendered his lease. He was therefore in a position to acquire his landlord's interest, without any livery of seisin, by a deed of release. Leases for years were accordingly made for the express purpose of afterwards conveying the land- lord's interest to the lessee, and thus avoiding the publicity of a livery of the seisin.^ This form of conveyance became the usual form in England, and continued so to be till the year 1841, when by act of Parliament ^ a release was declared to be as effectual for the conveyancee of freehold estates as a lease and release. 2C0. The deed of bargain and sale was another form of conveyance devised for the purpose of avoiding the publicity of conveyance by livery of seisin. A deed of release could only be made in case the lessee had actually entered under his lease. The necessity of such an entry was avoided by a bargain and sale. "A bargain was made for the sale of an estate; the purchase- money was paid ; but there was either no conveyance at all of the legal interest, or a conveyance defective at law by reason of the omission of livery of seisin, or attornment: the court of chancery properly thought that the estate ought in conscience to belong- to the person who paid the mone}', and therefore considered the bargainor as a trustee for him. But the centui que trust had only an equitable interest." ^ By the Statute of Uses, where a person is seised of land to the use of another, by reason of any bargain, sale, or feoffment, the person who has such use shall be deemed ill lawful seisin, estate, and possession of the land, to all intents and purposes, in such like estate as he has in the use. This statute, as applied to a deed of bargain and sale, passes the legal estate, v/hich for want of feoffment remained in the bargainor, to the purchaser, who by payment of the purchase-money was entitled to the equitable interest. Without the statute the bar- gainor was deemed to be seised of the land to the use of the bargainee ; but the statute united the possession to the use, so that, the very instant the use is raised, the j)Ossession is joined to it, and the bargainee becomes seised of the land.^ " The Statute ' 5 Bythewood & Jarman's Precedents In's Ilisi. of the Law of Real Prop. 4th in ConvcyancinfT, 4th eil. 7. ed. 328 ; 5 Bythewood & Jarman's Pre- - Act 4 «&. 5 Vict. ch. 21. cedents in Conveyancing, 4th ed. 8; Sli- 8 French v. French, 3 N. II. 2.34, 260, fcr v. Beates, 9 S. & H. 166, 177, per Dun- per Richardson, C. J. can, J. * French v. French, 3 N. II. 234 ; Dig- 181 5;;^ -JOl, -02.] DEKDS OF CONVEYANCE AND THEIR FORMS. of Uses iieeordingly defeated its own ends, and enabled secret conveyances to be made with greater facility than before." 201. Statute of Enrolments. — The Statute of Uses having failed in its purpose, a second act was passed tlie same year to prevent the mischief of secret bargains and sales. Tliis was the Statute of Enrohiients, which re(piired all bargains and sales of inheritance or freehold, which previously might be made by parol, to be made by deed indented, and that they should be enrolled in a court of record. ^ The intention was to secure publicity; but the statute failed of its purpose, because it applied only to estates of inheritance or freehold, and not to estates for years ; and consequently, upon a bargain and sale for years, the use raised upon the consideration was immediately executed by the Statute of Uses, so that the purchaser having legal possession could receive the seisin by a mei'e release.^ " Thus if A, tenant in fee simple, bai'gained and sold the manor of Dale to B for a year, and the day after executed a release of the reversion in fee to B and his heirs, he would by the bargain and sale have immediately vested in him an estate for a year in possession. He would there- upon become capable of taking a release, and, so soon as the release was executed, the smaller estate and the larger would coalesce, and the term be ' merged ' or sunk in the larger estate, whereupon B would become tenant in fee simple in possession. So popular did this conveyance become that in ordinary cases it entirely superseded the feoffment, and bargain and sale enrolled, and became the general mode of conveying freeholds mter vivos till the year 1841."-^ 202. The form of conveyance known as a covenant to stand seised is also founded upon the Statute of Uses. The consideration is the distinctive and essential feature of this spe- cies of deed ; the covenant can rest only in consideration of blood or marriage. It need not be expressed in any particular words, but this consideration must in some way appear as the actual consideration. Thus the deed need not in terms declare that it is made in consideration of natural love or affection for a wife, son, or cousin ; but if there is a covenant to stand seised to 1 27 Henry VIII. ch. 16. 3 Digby's Hist, of the Law of Heal 2 .5 Bythewood's Precedents in Convey- Property, 4th ed. 365. The En chiles v. Conley, 2 Dana (Ky.), 21. 186 DEEDS OF CONVEYANCE AND THEIR FORMS. [§ 212. tion of the parties, the recitals, the consideration, the operative words, the parcels, the habendiini, the covenants, and at the close the testimonium clause, which refers to the date of the instru- ment stated at the beginning.^ A deed by indenture is thedeed not only of the grantor, who alone executes it, but also of the grantee, to whom the conveyance is made, although it be not sealed and delivered by him.^ 212. A deed poll is a deed made by one party only. If it contains no recitals, the introductory words are, " Know all men by these presents," etc. If there are recitals, the introductory words should be, " To all to whom these presents shall come " the grantor " sends greeting," followed by the recitals, which are introduced by " whereas."^ 1 " Indenture " means an indented deed, though formerly this appears to have been It was the custom to make two copies of considered necessary. The authorities, the deed upon the same roll of parch- however, did not sustain the opinion that ment, which was then cut in a waving or actual indenture was necessary, "indented" line ; and sometimes the cut In a deed poll there was no occasion for was made through a word written across more than one copy, and the parchment the parcliment. The two parts of the was cut straight, or " polled." parchment could be identified by putting ^ Woodruff n. Woodruff (N. J.), 16Atl. the cut edges together and seeing whether Rep. 4. they conformed. In recent times the in- ^ Bythewood's Precedents, 4th ed. p. strument need not be actually indented, 24. 187 CHAPTER XIV. PARTIES TO DEEDS AND THEIR DESCRIPTION. I. Names and descriptions of the grant- ors, 213-221. II. Names and descriptions of the grant- ees, 222-234. III. Corporations and associations as grantees, 235-243. IV. Partnerships as grantees, 244, 245. Names and Descriptions of the Grantors. 213. The deed should describe with sufficient clearness who is the grantor and who is the grantee, giving their names, places of residence, occupation or profession, and such other de- scriptions as are usually stated in deeds. " And regularly it is requisite," says Coke, " that the purchaser be named by the name of baptism and his surname, and that special heed be taken to the name of baptism ; for that a man cannot have two names of bap- tism as he may have divers surnames." ^ A formal stateuient of the names, residences, and other description of the parties is not essential to the validity of a deed. But it has been sanctioned by usage for so long a period, and is so desirable, that great suspicion attends a deed vs'hich does not conform to usage in this particular. The ofEce of a name is to identify a person ; but identification may be made by any other description which points him out and distinguishes him from others. "• Know," says Perkins, " that the name of the grantor is not put in the deed to any other intent but to make certainty of the grantor." ^ A description of a party to a deed by name, residence, and occupation only furnishes the means of identification. That is all that any description can do. It doe_s not in itself identify the party. It affords a presumption, which is ordinarily all that is ^ Co. Litt. 3a.,- Jackson v. Ilart, 12 law is not precise in the case of surnames, Johns. 77, 87, 7 Am. Dec. 280, per Thomp- but for the Christian name this ought son, C. J. The importancu formerly at- aljvays to be perfect." Britton v. Wright- tached to the Christian name, as compared man, I'oph. 56. with the surname, is .shown by the state- ^ Profitable Book, § 36. nicnt of Chief Justice PoplKim that "the 188 NAMES AND DESCRIPTIONS OF THE GRANTORS. [§ 214. required. 1 If a conveyance is made to one by a certain name, and afterwai'ds there is a conveyance by one under the same name of the same land, there is a presumption of identity which is not overcome by the statement of a different place of residence in the two deeds. Thus land was conveyed to "Ashbel Green, of New York," and subsequently it was conveyed by Ashbel Green, of the township of Palisades, in the county of Bergen and State of New Jerse}' ; " and it was held that, notwithstanding the vari- ance, such grantee and grantor would be presumed to be the same person. 2 The proximity or remoteness of the places of residence might have a bearing upon the presumption of identity. 214. Similarity of name is ordinarily sufficient evidence of identity of a purchaser in a chain of title, in absence of evidence casting doubt upon his identity. ^ TIius, where a grant was made to " Asahel Savery," who conveyed the land by an instrument reciting that it is made b}^ " A. Savary," but signed it " A. Sa- vary,"' and this instrument is shown to have come from the proper custody, the evidence of identity is sufficient to support a finding that the conveyance was executed by the original grantee.'* And so where a patent was issued to " James Enimonds " and a deed of the land was made in which the grantor's name was so given, but it was signed " James Emmens," it was lield that there was no such variance as to destroy the presumption that it was the deed of the patentee.^ Though the name written in a deed is not the same as the name signed to it, the variance in orthography or in sound may be so slight as not to destroy the presumption that they are intended for the same person.^ A deed describing the grantor by his first given name written in full, with an initial for his middle name, but signed by an initial for the first name with the middle name written in full, sufficiently identifies the grantor, where the certifi- 1 Tinder v. Tinder, 131 Ind. 381, 30 v. Cody, 9 Cow. 140 ; Lyon y. Kain, 36 HI. N. K. Rep. 1077, per Elliott, C.J. ; Rupert 362 ; O'lVIeara v. North American M. Co. V. Tenner, 35 Neb. .587, 53 N. W. Rep. 2 Nev. 112, 121. 598; Eames v. McGre<;or, 43 Mich. 313, * Smith v. Gillum, 80 Tex. 120, 15 S. 5 N. E. Rep. 408 ; Goodell v. Ilihbard, 32 W. Rep. 794. Mich. 47. ^ Lyon v. Kain, 36 111. 362. 2 Tillotson V. Webber, 96 Mich. 144, 55 « Lyon v. Kain, 36 111. 362; Dodd v. N. W. Rep. 837. Bartholomew, 44 Ohio St. 171 ; Galveston 3 Chamblee v. Tarbox, 27 Tex. 139, 144, &c. Ry. Co. v. Stealey, 66 Tex. 468, 1 S. 84 Am. Dec. 614; Robertson v. Du Bo.se, W. Rep. 186. 76 Tex. 1, 6, 13 S. W. Rep. 300; Jackson 189 § 215.] rARllKS TO DEEDS AND THEIR DESCRIPTION. cate of aokuowledgment states that the officer knows the person sii^niiKi- the deed to be the same described in it, and who exe- cuted it.^ Where an error occurs in the name or residence of a party to a written instrument apparent upon its face, and from its contents suscejitible of correction so as to itUmtify the party with certainty, such error does not affect the vaHdity of the instrument.^ Thus where a deed was signed and acknowledged by " Samuel S. Jen- kins," the fact that in one part of the deed the grantor's name was written " Samuel S. Jones " is a manifest error which does not affect the validity of the deed.^ 215. If the name under which one has purchased land is not the correct name, nor idem sonans, and he conveys by his cor- rect name, his identity as purchaser may be proved ; but until such proof is made, and the deed to him is reformed, his deed is not a sufficient compliance with an agreement to give a '' good and per- fect title." Thus it appeared in a chain of title that a convey- ance was made to " K. F. Redmond," and that thereafter one "K. F. Redman " conveyed the land ; and after this said Redman executed another deed to tlie same grantee, in which he recited that he derived title to the land under the name of "K. F. Redmond," that his name was erroneously written " Redmond," and that he was the identical person to whom such conveyance was in fact made under such erroneous name. It was held that these deeds were not sufficient to make a good and perfect title under an agreement to convey. The court said : " The second deed from Redman, in which he recites that he is the identical person named as ' Redmond ' in the prior conveyances, does not help the matter. These recitals may be true in point of fact, and upon being established by proof in a proper action, the de- fendant could doubtless be able to obtain a judgment reforming the deeds under which his grantor Redman claimed, and which judgment would in effect give him a ' good and perfect title ' to the land, within the meaning of the law and the agreement which he made with the plaintiff. But a good and perfect title is one which is not only good in point of fact, but it must also be appar- 1 Lyon V. Kain, 36 111. 362. ^ Jenkins v. Jenkins, 148 Pa. St. 216, '-i .Tones on Mort. § 63 ; Dodd v. Bar- 23 Atl. Rep. 985. tholomew, 44 Ohio St. 171 ; Stewart v. Sutherland, 93 Cal. 270, 28 Pac. Rep. 947. 190 NAMES AND DESCRIl'TIONS OF THE GRANTORS. [§§ 216, 217, eiitly perfect when exhibited, that is, free from nuy reasonable objection. It is not sufficient that it can be sliown to be good as tiie I'esult of an action institnted for the purpose of reforming defects existing in 'dnj deed which is necessary to make tlie chain of title complete." ^ 216. For the purposes of identification, recitals in deeds as to facts of birth, marriage, and death are admissible as original evidence.^ A deed of a land certiticate wliich had been the community property of one August Auerbacli and his wife Louisa, who after the death of her husband married one '' Antone Hammer," was signed by " A. Hammer" and Louisa Hammer. The deed gave the grantors' names as " Andreas Ham- mer and Louisa Hammer," bnt recited that the certificate conveyed was " the headright of August Auerbach, first husband of Louisa Hammer." It was held that the deed was admissible in evidence in an action to try the title, and it was for the jury to say whether the Louisa Hammer who executed it as the wife of Andreas Ham- mer was the same person as the Louisa Auerbach who married Antone Hammer. The identity is indicated by the recital in the deed.'? 217. A grantor may be identified by the certificate of ac- knowledgment.^ Thus where in the body of a deed the grantor was described as " Robert P. McClintock," and the deed was signed " R. Parker McClintock," and the certificate of acknow- ledgment shows that Robert P. McClintock acknowledged the deed, it was held that the grantor was sufficiently identified.^ Where the grantor's true name was recited in the body of the deed, and he acknowledged by his true name, the fact that he 1 Peckham v. Stewart, 97 Cal. 147,153,. » Auerbach v. Wylie, 84 Tex. 615, 19 31 Pac. Rep. 928. A perfect title is one S. W. Rep. 856. that is free from ajipaient defects and is * Lj'on r. Kain, 36 111. 362; Boothroyd fairly deducible from the records. It is v. Engles, 23 Mich. 19; Houx v. Batteen, one that does not require litigation to 68 Mo. 84 ; Fenton i-. Perkins, 3 Mo. 144 ; establish it. Richmond v. Gray, 3 Allen, Ballard v. Carmichael, 83 Tex. 355, 18 25; Turner v. McDonald, 76 Cal. 177, 18 S. W. Rep. 734, 17 S. W. Rep. 393. Pac. Rep. 262; Sheehy u. Miles, 93 Cal. '^ Grand Tower Co. v. Gill, 111 111. 288, 28 Pac. Rep. 1046 ; Tillotson v. Ges- 541 ; Jenkins v. Jenkins, 148 Pa. St. 216, ner, 33 N. J. Eq. 313, 327. 23 Atl. Rep. 985. The affidavit of the - 1 Greenlcaf's Ev. § 104; Auerbach v. subscribing witness has the same effect. Wylie, 84 Tex. 615, 19 S. W. Rep. 856; Bennett i;. Green, 74 Cal. 425, 16 Pac. Russell y. Oliver, 78 Tex. 11,16, 14 S.W. Rep. 231. Rep. 264 ; Ciiamblee v. Tarbox, 27 Tex. 139, 145, 84 Am. Dec. 614. 191 § 218.] l'ARIli:S TO DEEDS AND THEIR DKSCHIPTION. sigiu'd l>v the Christaii name of " Ediiiuiul " when his true name was " EJwaril "' was htdd not to invalidate the conveyance. It is to be presumed from the certificate of acknowledgment, in the absence of the deed itself, that the deed was in fact executed by *' Edward." ^ In tlie body of a deed and in the certificate of acknowledgment the grantor was correctly described as " Archibald T. Finn." The deed was signed by " Arch. T, Finn." The officer taking the acknowledgment certified that " personally came Archibald T. Finn, personally to me known to be the identical person whose name is affixed to the above deed as grantor, and acknowledged the instrument to be his voluntary act and deed." This was sufficient to show that the grantor described in the deed and the person wiio signed and acknowledged the instrument were one and the same person.'-^ The name of the grantor in the body of the deed and in the acknowledgment may be so unlike that signed to the deed that the certificate of acknowledgment will not be held to sufficiently identify the grantor. If the name signed to a deed and the name by which it was acknowledged are not similar, proof should be made that the person who signed the deed also acknowledged it. Thus a deed purporting to be signed by " Harmon Sherman," and acknowledged by " Hiram Sherman," cannot in the absence of such proof be received in evidence as the deed of Hiram Sher- man, the original deed not being shown. In the absence of proof, such a deed is signed and acknowledged by different persons.^ And so where a deed and the acknowledgment described the grantor as " R. P. O'Neil," and the signature was the same, it was held that the deed was not admissible in evidence to show a convej'ance from "Patrick O'Neil" without evidence of identity; and without such proof it would not be presumed that " R. P. O'Neil " stood for " Rev. Patrick O'Neil." * 218. The o-wner of land may convey it by any name which he niay use as a signature, and the title will pass to his grantee, though he received the title under a different name.^ " If a man 1 Middletoii v. Findla, 25 Cal. 76; 3 Boothroyd v. Engles, 23 Mich. 19. Nixon V. Cohleigh, 52 111. 387 ; Lyon v. See O'Mcara u. North iVmerican M. Co. Kain, 36 111. 362. 2Nev. 112, 121. 2 Rupert V. Pe^iner, 35 Neb. 587, 53 N. * Burford v. McCue, 53 Pa. St. 427. W. Rep. 598. 5 Addis v. Power, 7 Bing. 455 ; Wil- 192 NAMES AND DESCRIPTIONS OF THE GRANTORS. [§ 219. be baptized by one name and known by another, a grant by the name by which he is known shall be good." ^ Whether one pur- posely uses an assumed name, or the scrivener has made a mis- take in writing his name, the deed of the true owner of the bind is etTectual to pass tlie title. " If the true owner conveys bv aiiv name, the conveyance as between the grantor and grantee \\\]\ transfer title, and in all cases evidence aliunde the instrument is admissible to identify the actual grantor. The admission of such evidence does not change the written instrument, or add new terms to it, but merely fixes and applies the terms already con- tained in it." 2 Though the name used by the grantor throughout the deed and in his signature is wholly fictitious, he is bound by the deed, and the title passes to the grantee.'^ Though the grantor's name be incorrectly given throughout a deed, and it be executed by his signing his correct name, the deed is good.^ He is estopped from denying that he is bound hy the deed.'^ On the other hand, if the grantor signs a deed by his Christian name only, his name in full appearing in the body of the deed, the signing is sufficient and binding.^ A description of the grantor as the wife of a person named is sufficient, though it is afterwards shown that the marriage ceremony was invalid." 219. The middle name or initial of a person is not a part of his legal name, which consists of one given name and one liams I'. Bryant, 5 Mees. & W. 447, 454 ; dence was admissible to show that John Shaw V. Hunt, 8 Taunt. 64.5 ; Elliot i'. O. Brunius was the party who sijined the Davi-i, 2 Bos. & Pul. 338; Garwood v. deed, and that if this was proved his title Hastings, 38 Cal. 216 ; Fallon v. Kehoe, passed. 38 Cal. 44, 99 Am. Dec. 347, where a ^ Lord Chief Baron Comyns in his Di- deed made to " Darby O'Fallon," which gest. Fait, E. 3. was the name under wliich JtTemiah Fal- - Wakefield xk Brown, 38 Minn. 361, Ion .sometimes passed, was held to be a 37 N. W. Rej). 788. good deed, and a conveyance by him under ^ David r. Willianisburgh Ins. Co. 83 tlic name of "Darby O'Fallon" trans- N. Y. 265, 38 Am. Rep. 418; Andrews ferred the title. A somewhat similar rul- v. Dyer, 81 Me. 104, 16 Atl. Rep. 405 ; inj; was made in Middleton v. Findla, 25 Hommel v. Devinney, 39 Mich. 522 ; Cal. 76, and in Nixon v. Cobleigh, 52 Nixon v. Cobleigh, 52 III. 387. 111.387; Wilson v. AVIiite, 84 Cal. 239, * Jones v. Whitbread, 11 C. B. 400, 24 Pac. Rep. 114; Wakefield v. Brown, 413. 38 Minn. 361, 37 N. W. Rep. 788, where & Boothroyd v. Engles, 23 Mich. 19. a deed was made out in the name of ^ Zann i;. Haller, 71 Ind. 136. "James O. Brunius," and signed "J. 0. "^ Boughton v. Sandilands, 3 Taunt. Brunius." It was held that parol evi- 342. VOL. I. 193 § 219.] PARTIES TO DEEDS AND THEIR DESCRIPTION. su 111:1 me. ' It follows, therefore, that the omission of such mid- ilh' naiiK' or initiiil, or the insertion of a wrong middle name or initial, in a deed does not affect its legal validity, whatever confu- sion or uncertainty may be thereby occasioned.'-^ It is competent to show that the grantor or grantee is as well known without a niidille name as with one.'^ The deeds themselves may sufficiently iileiitify the party though the middle name or initial be omitted in one instance. Thus, where a deed was made to " Harriet N. Andrews," and the next deed in the chain of titUi was executed by "• Harriet Andrews " and her husband, but in the body of the deed she was described by the same name as in the deed to her, and as residing in the same town, the identity was regarded as sufficiently established.** If the deed does not sufficiently show the identity of the party, this may be proved by testimony that he executed the deed, or was the grantee to whom the deed was delivered. Thus, where in a chain of title it appeared that a conveyance was made to " E. J. Courtright," and that subsequently Courtright conveyed by a deed in the body of which his name was given as " Erastus J. Courtright," but it was signed "Erastus I. Courtright," it was held to be competent to identify the grantor by his testimony and that of the grantee that the Courtright who executed the deed was tiie same person to whom the deed was made under the name of - E. J. Courtright." '> One David A. Brown purchased a lot, taking a deed in the name of David C. Brown. He executed a bond and mortgage in the name of David C. Brown to secure the purchase-money, and the notary certified that the mortgage was acknowledged by David C. Brown. He had at the time an infant son named David C. Brown. It was held that the deed and mortgage must be con- strued together, and it was the evident understanding of the 1 Games v. Stiles, 14 Pet. 322; Dunn ^ Gillespie v. Kogers, 146 Mass. 610, 16 V. Games, 1 McLean, .321 ; Franklin v. N. E. Rep. 711 ; Games v. Stiles, 14 Pet. Talmadge, 5 Johns. 84; Erskinc r. Davis, 322,327 ; Hall r Leonard, 1 Pick. 27, 30; 2.5 111. 251 ; Roosevelt v. Gardinier, 2 Scanlan v. Wright, 13 Pick. 523, 25 Am. Cow. 463; McDonald ?;. .Morgan, 27 Tex. Dec. 344 ; Peabody v. Brown, 10 Gray, 503 ; Banks v. Lee, 73 Ga. 25. 45. 2 Coke r. Brummell, 2 Moo. 495 ; Sclio- * Clow v. Plummer, 85 Mich. 550, 48 field V. Jennings, 68 Ind. 232 ; Nicoderaus N. W. Bep. 795. 1;. Young (Iowa), 57 N. W. Rep. 906; * Nicodemus i;. Young (Iowa), 57 N. Erskine v. Davis, 25 III. 251 ; Peabody v. W. Hep. 906. Brown, 10 Grav, 45. 194 NAMES AND DESCRIPTIONS OF THE GRANTEES. [§§ 220-222. grantor that the grantee and mortgagor were one and the same person, and the title did not pass to his son by the deed.^ 220. But in recent years the middle name, or its initial, is apt to be regarded as a material part of a name. The use of such initials, in addition to a fully written Christian name, is the most common means by which, in all the affairs of life, persons bear- ing names otherwise the same are distinguished ; and if it appear merely that land had been conveyed to " William H. Brown," and that a subsequent conveyance of the same land had been executed by " William B. Brown," it will not be presumed that the grantee in the one deed and the grantor in the other were the same person.^ The rule that the middle name or initial is not a material part of a person's name does not apply when the first name is not given, but only its initial.^ 221. The designation of "junior" or "second" is no part of a man's name, and, although convenient and desirable for the purpose of distinguishing the party from another person of the same name, it is not essential, and the person intended may be shown in some other way. " Neither of the terms constitutes any part of the name, but they are used to describe and designate the person, as his residence is sometimes used for the same pur- pose." * II. Names and Descriptions of the Grantees. 222. In every grant there must be a grantee. If no grantee is named or described in the deed no title passes by it to any one. Parol testimony that one of the persons named in the deed as a grantor was the intended grantee is inadmissible when there is nothing in the deed to indicate that such grantor was not just what he was stated to be, save the bare fact that he did not join in its execution, and that a grantee was not named therein. That the name of the intended grantee is indorsed upon the deed is of no consequence. The grantee must be determined from the con- 1 McDuffie V. Clark, 9 N. Y. Supp. * Cobb v. Lucas, 15 Pick. 7, per Mor- 826. ton, J.; Kincaid v. Howe, 10 Mass. 203; 2 Ambs V. Chicago, St. P., Minn. & Padgett v. Lawrence, 10 Paige, 170, 40 Omaha Ry Co. 44 Minn. 266, 46 N. W. Am. Dec. 232 ; Fleet v. Youngs, 11 Wend. Kep. 321. .')22. See Sawyer v. Northan, 112 N. C. ^ State V. Higgins (Minn.), 61 N. W. 261, 16 S. PI Kep. 1023. Rep. 816. 195 § 223.] PAKTIKS TO DEEDS AND THEIR DESCRIPTION. tents of the iiistniincnt, not fioin its label. Parol evidence is inadmissible that another person named as grantor was the sole owner of the property described ; that he bargained it to the other person named as grantor; that it was the intention of the owner to convey to such other person ; and that a mistake was made by the person wiio drew the deed. Title to real property cannot be established by parol, ^ The fact that one is named in the consideration clause does not make him a grantee. Thus, where a deed acknowledged the receipt of consideration from two persons, and the granting clause and habendum contained the name of one of them only, with a blank api)arently left for the insertion of another name, it was held that the deed conveyed no interest to the person whose name appeared onl}' in the consideration clause.^ 223. The grantee must be in existence and capable of tak- ing at the tinae of the grant.-^ This was essential at common law, because otherwise there could be no livery of seisin. A grantee is as necessary to the validity of a grant as that there should be a grantor or a thing granted.* Thus a conveyance to such children as may afterwards be born to persons named is inoperative, and vests no title in after-born children of such persons.^ A deed to a person not living at the time of its execution and his heirs is void, there being no person to take under it, as the word "heirs " is a word of limitation and not of purchase.^ But a deed to a person named or his heirs is not void, for it is a conveyance to such person if living, and, if he is not living, to his heirs. It is a deed in the alternative.'' A deed to the heirs of a person deceased is valid, because the persons entitled to take can be ascertained by parol evidence.^ There must be parties capable of contracting with each other. 1 Allen D.Allen, 48 Minn. 462, 51 N. W. Rep. 47.3 ; Whitaker v. Miller, 83 III. W. Rep. 473. 381; Gannett v. Garnett, 7 T. B. Mon. 2 Hardin v. Hardin, 32 S. C. 599, 11 545. S. E. Rep. 102. 6 shep. Touch. 235 ; Lillard v. Ruck- » Douthitt V. Stinson, 63 Mo. 268 ; ers, 9 Yerg. 64. Chase o. Palmer, 29 111. 306; Simms v. « Hunter v. Watson, 12 Cal. 363, 73 Hervey, 19 Iowa, 273 ; Kelley v. Bourne, Am. Dec. 543. 15 Oieg. 476, 16 Pac. Rep. 40 ; Sloane v. ^ Ready v. Kearsley, 14 Mich. 215. McConahy, 4 Ohio, 157, 169. ^ Boone v. Moore, 14 Mo. 420; Shaw * Allen V. Allen, 48 Minn. 462, 51 N. v. Loud, 12 Mass. 447. 396 NAMES AND DESCRIPTIONS OF THE GRANTEES. [§ 224. A orantor cannot make a conveyance to himself, though he claims to act in a representative capacity in taking it. Thus, where an administrator with will annexed, having appropriated funds belonging to the estate, made a mortgage to himself as adminis- trator to secure his indebtedness, the mortgage was declared inop- erative. Though the mortgage was made to himself, with the addition of the words "executor of the estate" named, the legal effect of the mortgage was a grant to himself in his individual capacity. 1 The word " administrator," " executor," or " trustee " after the name of a grantee in a deed is merely a description of the per- son, and a conveyance to a person so described vests in him in his individual capacity.^ 224. It is not essential that the grantee should be formally named in the granting part of a deed. It is only necessary that, taking the whole instrument together, there is no uncer- tainty as to the grantee.^ " The whole writing is always to be considered, and the intent will not be defeated by false English or irregular arrangement, unless the defect is so serious as abso- lutely to preclude the ascertainment of the meaning of the par- ties through the means furnished by the whole document, and such intrinsic aids as the law permits. It is not indispensable that the name of the grantee, if given, should be inserted in the premises. If the instrument shows who he is, if it designates him, and so identifies him that there is no reasonable doubt re- specting the party constituted grantee, it is not of vital conse- quence that the matter which establishes his identity is not in the common or best form, or in the usual or most appropriate posi- tion in the instrument."* But a mere recital, in a deed of indenture, of the name of a per- son as one of the parties of the second part, who is not afterwards named in the deed, is not sufficient to make such person one of the grantees. Thus, where it appeared that John Hartman and Susan, his wife, were named as parties of tl)e second part in a 1 Gorham v. Meacham, 63 Vt, 231, 22 » American Emifrrant Co. v. Clark, 62 Atl. T^ep. .572. Iowa. 182, 17 N. W. Rep. 483 ; Bay v. 2 Jack.son n. Roberts (Ky.), 2.") S. W. Toaner (Md.), 20 Atl. Rep. 1084. Rep. 879; Towar v. Hale, 46 Barb. 361 ; * Newton v. McKay, 29 Mich. 1, per Austin V. Shaw, 10 Allen, 552 ; Brown v. Graves, C. J. Combs, 29 N. J. L. 36. 197 §§ -I'ln, 226.] rAHTIKS TO DKKDS AND TIIKIU DKSCRIPTION. di'eil of iiulontuie, but in all the gnuiting and operative clauses of the di'od the fonveyanct; was to John Hartinaii, his heirs and assigns, alone, imd thi' covenants were with him alone, and the iiiinie of Susan llartnian did not otherwise aj)[)ear in the deed, it was lield tliat the lonveyance was to the liusband alone, and not to the luisband and wife jointly. It was claimed that the inten- tion was to make a conveyance to them jointly, that by a mistake of the scrivener the name of the wife was omitted from the granting and operative clauses of the deed, and that the deed should be veformed so as to make it conform to such intention. Testimony was introduced that all the parties intended that the conveyance should be to the husband and wife jointly. It was held that the evidence was not sufficient to establish such inten- tion beyond a reasonable doubt. ^ 225. It is not absolutely necessary that the grantee be named at all, provided he is so described that he can be clearly ascertained.^ Thus a deed made to the eldest or other designated son of a person named, or to all the sons of such person, is good ; ^ or to all the creditors of the grantor ; * or to the heirs of a named deceased person;^ or to the children of a person named ;^ or to the wife of a person named ; ' or to the son, though a bastard, of his reputed father, when he has acquired the reputation of being his son.^ 226. Parol evidence is admissible to identify the grantee. When a person produces a deed having the name of the grantee identical with his own, there is prima facie evidence of the de- livery of the deed to him as grantee.^ But if the name of the grantee in the deed and the name of the person producing it and claiming to be the grantee are unlike, evidence of identification of the grantee and of delivery of the deed to him is necessary. This identification may be made by parol evidence. Thus it 1 National Bank v. Hartiniin (Pa. St.), Laren v. Baxter, L. R. 2 C. P. 559; 30 W. N. C. 42, 23 Atl. Rep. 842. Isaacs v. Green, L. R. 2 Exch. 352. 2 Shep. Touch. 232, 236; Reeves v. ^ Shaw v. Loud, 12 Mass. 447 ; Jones Watts, 7 Best & S. 523; Maujiham v. y. Morris, 61 Ala. 518 ; Payne i>. Mathis, Sharpe, 17 C. B. N. S. 443 ; Gillespie 92 Ala. 585, 9 So. Rep. 605 ; McKee v. V. Rogers, 146 Mass. 610, 16 N. E. Rep. Spiro, 107 Mo. 452, 17 S. W. Rep. 1013; 711 ; Shaw v. Loud, 12 Mass. 447; Webb Boone v. Moore, 14 Mo. 420. V. Den, 17 IIow. 576. « Hogg v. Odom, Dudley (Ga.), 185. 3 Co. Litt. 3 h. 7 Dr. Ayray's Case, 11 Coke, 21 a. * Reeves v. Watts, L. R. 1 Q. B. 412 ; « Finch's Case, 6 Coke, 63 a. Gresiy v. Gibson, L. R. 1 Ex. 112 ; Mc- ^ Dunlap v. Green, 60 Fed. Rep. 242. 108 NAMES AND DESCRIPTIONS OF THE GRANTEES. [§ 227. may be shown that the name written in the deed was errone- ous by mistake, but was intended for the person to whom it was delivered.' 227. Parol evidence is not admissible, however, to show that the deed was made and delivered by mistake to the wrong person, and tliat the grantor intended another person as grantee.- Such evidence is admissible only to show that the per- son named in the deed was the person intended to be the grantee.^ If a deed is made to one by his surname onl}-, his Christian name being left blank, there is an ambiguity as to tlie grantee which may be remedied by proof aliunde showing to whom the deed was delivered, or intended to be delivered. Where the grantee in such a deed, for the purpose of defrauding his cred- itors, without the knowledge of his wife filled the blank with her Christian name, it was h(dd that the title vested in the husband, and was not divested by his filling the blank with the name of his wife.* The ground for the admission of parol evidence, to determine who is the grantee to whom a deed is made, is well stated by Chief Justice Royce of the Supreme Court of Vermont.^ " There is," he says, " an important difference between a description which is inherently uncertain and indeterminate, and one which is merely imperfect, and capable, on that account, of different applications. To correct the one is, in effect, to add new terms to the instru- 1 Andrews v. Dyer, 81 Me. 104, 16 Atl. Jackson f. Hart, 12 Johns. 77, where the Sep. 405, 78 Me. 427, 6 Atl. Rep. 833. mistake was in the surname. The deed in this case was made to" Mercy - Crawford v. Spencer, 8 Cush. 418; A.Andrews," instead of " Melissa A. An- Whitmore v. Learned, 70 Me. 276. See drews," to whom it was deliveied and for Diener v. Diener, 5 Wis. 483. whom it was intended. Jacobs v. Benson, ^ Andrews v. Dyer, 81 Me. 104, 16 39 Me. 132, 63 Am. Dec. 609; Hall v. Atl. Hep. 40.5; Jackson v. Stanley, 10 Leonard, 1 Pick. (Mass.) 27; Scanlan r. Johns. 133. Wright, 13 Pick. 523, 25 Am. Dec. 344 ; •* Fletcher v. Mansur, 5 lud. 267. A Skinker v. Haagsma, 99 Mo. 208. 12 S. different conclusion was reached in Jei\- W. Rep. 659 ; Staak v. Sigclkow, 12 Wis. nings v. Jennings. 24 Oreg. 447, 34 Pac. 234; Nicodemus v. Young (Iowa). 57 N. Rep. 21, where, a deed having been exe- W. Re)). 906 ; Peabody y. Brown, 10 Gray, cutcd and delivered to one who was eii- 45, where a deed to '* Hiram Gowing, titled to receive it, he filled the blank cordwainer," was .shown to have been in- with the name of bis daughter, and deliv- tendf'd for " Hiram G. Gowing," and not ered the deed to her, and it was held that for " Hiram Gowing," his young son ; this was sufficient to convey the title to Jackson v. Stanley, 10 Johns. 133, where her as against him and his heirs. the mistake was in the Chri-tian name ; ^ Morse v. Carpenter, 19 Vt. 613, 616. 199 §^^ 2-28, 2211] PARTIES TO DEKDS AND THKIU DKSCKirTION. uu'iit ; wliiU' to coiuplete the other is t)iily to iiseertaiii aiul iix the apulieatioii of terms ahe;uly cuutained in it. Iinleed, tiie most usual and approved description of the (grantee — that whicli gives his Christian and surname and tlie town in wliich he lives — may- prove to be imperfect, as others hearing- both those names may be living in the same town. ^\nd if the Christian name or place of residence be omitted, the description is only rendered the more imperfect; it is less certain than it might be, and usually is, made. But a grantee is still designated, though imperfectly, and, for aught that the deed discloses, the party accepting the conveyance may be the only person answering the description given. In all these cases a resort to extraneous facts and circumstances may become necessary in order to ascertain the individual to whom the description was intended to apply ; but it is not perceived that the greater or less probability of this should in either case afTcct the validity of the deed." 228. A deed to a married woman by the name she bore before her marriage may be shown by parol evidence to have been made to the person to whom the grant was intended to be made; that her marriage was unknown to the grantor; and that there was no other person claiming to bear the name used in the deed, or claiming title under the deed.^ 229. A deed to a person by a fictitious name passes the title. If there be a person in existence to whom delivery of the deed is made, the deed is not a nullity, but transfers the title to the person to whom it is delivered.^ It makes no difference in the legal effect of a deed delivered to the actual purchaser that he is called by some other name than his own. He may assume a name for the occasion, and a conveyance to and by him under such name will pass the title. In a New York case so deciding, Mr. Justice Earl said : '^ '" In executing any instruments, I can find no authorities which hold that one is not bound by the name he adopts or uses. Pro hae vice, it is his name." If one accepts and places on record a conveyance of land to himself, wherein his name as grantee is erroneously written, he is presumed to know 1 Scanlan v. Writil)le of livery, he would not Winslow, supra. But that case was di- have misled us into applying it to a con- rectly affirmed in Oiitland r. Bowen, 115 veyancc of land here in Pennsylvania, Ind. 150, 17 N. E. Rep. 281, and in Tin- where registry stands instead of livery." 201 § 232.] PARTIES TO DEEDS AND THEIR DESCRIPTION. the chiKlveii of a person living, and not his posslbh; descendants, or an indefinite line of descendants, then the word "heirs" will be taken to mean the living children of the person named, and effect will be given to the deed as a conveyance to snch children. Accordingly, where a deed was to a married woman and the heirs of herself and her husband named, it was held that tlie estate conveyed vested immediately in liim and the chihli'en then living of herself and her husband. Hie word " heirs " as used in this deed was considered as descriptive of a class, and as meaning the children of the persons named ; ^ and so, where the words of a deed were " to have and to hold the same to the said Nancy West and her present heirs forever," it was held that Nancy West and her apparent heirs took the estate in common.^ If there are words restricting the meaning of the word " heirs " to grandchildren, the latter will take title under the deed. Thus, where one made a deed to the heirs of his son " for the natural love and affection he hath for his grandchildren," it was held that the grandchildren were sufficiently described to take under the deed.-^ 232. If there are no words in a deed to indicate that the grantor used the word "• heirs " in otherwise than its strict le- gal sense, then it must be taken in that sense. " He may have meant ' children,' and he may have meant ' heirs.' This makes it wholly uncertain as to who the grantees were. If he had used words in addition indicating that he meant children by the word ' heirs,' that would have been certain enough, but he might have meant ' heirs ' in the legal signification of tlie word. If he did, then, in addition to the fact that a man cannot have lieirs while 1 Tinder '•. Tinder, 131 lud. 381, 30 either upon reason or authority, that we N. E. Rep. 1077. To like effect, Tucker ought to construe 'heirs' a word of pur- V. Tucker, 78 Ky. 503 ; Brann v. Elze}', chase, meaning the grandchildren, and 83 Ky. 440. thus serve the intent ? It is an instance 2 Franklin Co. C. & M. Co. v. Beckle- where the context of the instrument proves heimer, 102 Ind. 76, 1 N. E. Rep. 202. that the word 'heirs' is to be taken in ^ IIuss V. Stephens, .51 Pa. St. 282. its ])opular and not its technical sense. Woodward, C. J., Siiid : " Now, when Acknowledging the consideration of the in this deed the grant is to the heirs of instrument to be love and affection for his a son and to their heirs and assigns for- grandchildren, he intended, by that sure ever, and the other word ' grandchildren' token, that they should take an estate comes in as a rh-xir/nnlio prrsonarum, — as from him. Had he named them he could the grantor's definition of what he means scarcely have been better understood." by ' heirs,' — where is the room to doubt, 202 NAMES AND DESCRIPTIONS OF THE GRANTEES. [§ 233. he lives, it would always remain a matter of great uncertainty who the man's heirs would be until he dies ; so that, if he meant ' heirs,' in the legal signification of the word, it is void for uncertainty, and because he could have no heirs while he lives. But as we do not know whether he meant ' heirs ' in the legal signification of the word, or ' children,' the deed is equally void for uncertainty in the grantee."^ But even where there are no words restricting the meaning of the word "heirs," it has been held that a deed to the heirs of a living person vests the title in his children.^ The word "heirs" in such case is not used in its technical sense, but as meaning the apparent heirs of the living person at the time of the execution of the deed. Tlie same rule applies in the case of a will. As declared in an earlier case in New York, " where the will recog- nizes the ancestor as living, and makes a devise to the heir eo no- mine, this shows that the term was not used in its strictest sense, hut as meaning the heir apparent of the ancestor named." ^ 233. A deed to a person named " and her children " is not void as to the mother or her children living at the time the deed was made. Such children can be identified by parol evi- dence, and they and their mother take the title as tenants in com- mon,* but children subsequently born take no title.^ If in such case the grantee named has no children at the time of the execu- tion of the deed, such grantee takes the entire property to the exclusion of children born subsequently to the execution of the deed.'^ If a deed be made to one and his heirs, designating as such his children by name, the conveyance is in effect to the grantee and the children named as tenants in common. The word "heirs" was used in the sense of " children."' 1 Booker v. Tarwater (Ind.), 37 N. E. 334. The habendum was to them and Rep. 979, 982, per McCabe, J. their heirs and assigns forever. Arthur 2 Heath V. Hewitt, 127 N. Y. 166, 27 v. Weston, 22 Mo. 378. N. E. Rep. 9,i9. To like effect, Tharp v. ^ Glass v. Glass, 71 Ind. 392. Yarbroiigh, 79 Ga. 382, 4 S. E. Rep. 91.5. •^ Baird v. Brookin, 86 Ga. 709, 12 S. 3 Heard v. Ilorton, 1 Dciiio, 105, 43 E. Rep. 981; Lofton v. Murchison, 80 Am. Dec. 659. Ga. 391,7 S. E. Rep. 322, a case of a * Moore r. Lee (Ala.), 17 So. Rep. 15; will ; Loyless v. Blackshear, 43 Ga. 327; Vanziint v. Morris, 25 Ala. 285 ; Var- Estill v. Beers, 82 Ga. 608, 9 S. E. Rep. ner v. Younj;, 56 Aln. 260; Mason c. .596. Pate, 34 Ala. 379; Williams r. McConico, ' Brassinglon v. Hanson, 149 Pa. St. 36 Ala. 22 ; Hamilton v. Pitcher, 53 Mo. 289, 24 Atl. Rep. 344. 203 §§ i!o4, 23,').] PAiniKS to dkeds and iiikik i»kscriimion. But a conveyance made to a woman and her children living at the time or after-born vests a life estate only in the mother, with remainder to her children.' 234. Certainty as to the grantee is essential. If the deed does not itself make it certain who is the grantee, it must afford the means of ascertaining with certainty who he is through evidence aliunde. A deed " to the estate" of a person deceased is a nul- lity.^ The executor or administratoi" is the legal representative of the deceased, and the estate is something tluit cannot be recog- nized at all as a party to a contract. The fact that the grantors were executors of the will of the deceased, and were authorized by the will and an order of court to distribute his estate, is not sufficient to identify the grantees intended. A deed " to the legatees and devisees " of a deceased person named sufficiently describes the grantees, for they may be ascer- tained by reference to the will.^ A deed granting a right of way to the " owner oi- owners of the brick house, and curtilage " described in the deed is insufiicient to enable any one to claim the right of way.'* A deed which for the want of a grantee passes no legal estate may be sufficient to create a trust which a court of equity will protect by appointing a trustee to receive the legal title from the grantor or his heirs; as where a deed was made naming no grantee, " for the use of a school-house, if the neighboring inhab- itants see cause to build a school-house thereon." ^ III. Corporations and Associations as Grrantees. 235. A corporation, when made a grantee, should be de- scribed by its oflacial name. A grant to a corporation is good, however, if it clearly appears from the deed itself what coi-pora- tion was intended, though an omission or mistake may have been made in the corporate name.^ 1 Kinuey r. Mathews, 69 Mo. 520 ; Carr ^ Schaidt v. Blaul, 66 Md. 141, 6 Atl. V. Estill, 16 B. Mon. 309. And see Jef- Rej). 669. fery u. De Vitre, 24 Beav. 296; Froggatt 5 Bailey v. Kilbiirn, 10 Met. 176, 43 V. Warden, 3 De G. & S. 685. Am. Dec. 423. - Mclnerney r. Beck (Wash.), 39 Pac. « Lyniie Regis Case, 10 Coke, 122 h.; Rep. 130, per Dunhar, C. J. ; Simmons v. Dr. Ayray's Case, 11 Coke, IS b. ; Pits u. Spratt, 20 Fla. 495, 1 So. Rep. 860. James, Ilob. 121 h. ; Dutch West India ^ Webb V. Den, 17 IIow. 576. Co. r. Van Moses, 1 Strange, 612; Croy- 204 don Hospital v. Farley, 6 Taunt. 467. CORPORATIONS AND ASSOCIATIONS AS GRANTEKS. [§§ 230, 237. The fact that the grantor at the time of tlie execution of the deed was ignorant that the grantee was a body corporate does not change the rule that such grantee must be named or described with certainty.^ A deed to an imaginary corporation passes no title.^ A de facto corporation is capable of taking title as grantee.^ 236. The corporation must have a legal existence and be capable of taking a conveyance. Thus a deed purporting to con- vey land to a corporation, before such corporation was organized, is a nullity : it passes no title to any one.* A qualification of this rule is to be noted as regards corporations which have a de facto existence, either from long recognition as such, or from recog- nition after an imperfect organization, though they cannot pro- duce any charters which show their incorporation.^ A voluntary association of persons not incorporated has no legal capacity to take a conve3^ance of land, and a deed to such an association by name passes no title.^ But a conveyance to an unincorporated comp;iny which is shortly afterwards duly organized as a corporation, and goes into posses- sion under the deed, passes a title to such corporation as against one not holding by a superior title, but under a subsequent tax sale.'^ 237. A deed to the trustees or officers by name of an unin- corporated association is good, for in such case the title vests in such trustees or officers as individuals. The words naming the association are regarded merely as words descriptive of the persons.^ A deed to one described as administrator is a grant to him individually ; therefore, where an administrator became in- debted to the estate, and for the purpose of securing such indebt- 1 Asheville Division v. Aston, 92 N. C. <* German Land Asso. r. Scholler, 10 578. Minn. 331, 338. 2 Russell V. Topping, 5 McLean, 194, " Clifton Heights Land Co. v. Kandell, 202; Harriman v. Soutliani, 16 lud. 82 Iowa, 89, 47 N. W. Rep. 905. 190. ^ Austin v. Shaw, 10 Allen, .552 ; Towar 8 Smith r. Sheeley, 12 Wall. 358 ; My- v. Hale, 46 Barb. 361; Bundy v. Bird- ers V. Croft, 13 Wall. 291. sail, 29 Barb. 31 ; Brown v. Combs, 29 * Douthitt V. Stinson, 63 Mo. 268 ; N. J. L. 36 ; Den v. Hay, 21 N. J. L. 174 ; Harriman v. Southam, 16 Ind. 190; Rus- Hart v. Seymour, 147 111. .'■)r)8, 35 N. E. sell y. Tojjping, 5 McLean, 19.5. Rep. 246 ; Douthitt v. Stinson, 63 Mo. ^ Mercers of Shrewsbury v. Hart, 1 Car. 268 ; Bayley v. Onondaga Ins. Co. 6 Hill, & P. 113 ; Smith v. Slieeley, 12 Wall. 358 ; 476, 41 Am. Dec. 759; Vansant v. Rob- Myers V. Croft, 13 Wall. 291. erts, 3 Md. 119. 205 § 288.] rAiMii:s to dkeds and riiiaii dksckh'Tion. (.'iliK'ss executed a niorty:i!j;e to hiinsell' as administrator to secure the same, the mortgage was held invalid lor want of contracting parties.' A deed to persons named, for the use of a clinrch dcscTibed not then incorporated, vests the title in such persons, who stand seised to the use of the church ; and when the church afterwards acquires a legal capacity to take and hold title, the statute exe- cutes the possession to the use, and the estate vests in the incor- porated church.- When a deed is made to trustees named, and the beneficiaries can be determined with certainty, the conveyance is not void. If a deed be made to the trustees of a building association, there is no uncertainty which will avoid the conveyance if the members of the association can be ascertained. In such a case the Supreme Court of Illinois said : " The association, not being incorporated, was, in contemplation of law, a mere copartnership, composed of the several associates, who executed and thereby became parties to the trust agreement, and the name adopted by the agreement may be regarded as their firm or copartnership name. The co- partners were all natural persons, whose identity was fixed and ascertained by the agreement itself. The grantees in the deeds, therefore, if they took the land in trust, took it in trust for their firm, composed of ascertained partners, all capable of becoming beneficiaries of the trust. The case, then, is not one where deeds creating trusts may be held to be void by reason of the inca- pacity of the beneficiaries to take and hold the title." ^ 238. A deed to persons named, "trustees" of an incorpo- rated society, "their successors in office and assigns," vests the title in such persons and not in the society. A statute which provides that, where one holds land under a deed to the " use, confidence, or trust" of another, the title shall be deemed to be in the latter, does not have the effect to vest the title in the cor- poration, because the deed does not create an express trust, but only an implied or constructive trust.* But a deed " to the trustees " of a corporation, without naming ^ Gorham v. Mcacham, 63 Vt. 231, 22 3 jjart v. Seymour, 147 111. 598, 35 N. Atl. Rep. 572. E. Rep. 246. 2 Reformed Dutch Church v. Veeder, 4 * United Bretliren Church r. First Meth- Wend. 494. odist Church, 138 111. 608, 28 N. E. Rep. 829. 206 CORPORATIONS AND ASSOCIATIONS AS GRANTEES. [§ 239. them, vests the legal title in the oorjooration ; ^ and a deed ''to the trustees" of an unincorporated society, which by statute is en- titled to receive grants of land, is a grant to the association."' If a deed be made to a voluntary unincorporated association which is not authorized to take and hold real estate, and all the members of it may be ascertained, it may be construed as a grant to those who are properly described under the name of the association. They would hold the land as tenants in common.^ 239. The misnomer of a corporation intended to be tlie grantee does not invalidate the deed when the true name of the corporation appears in the covenant of warranty or other part of the deed,* or when it appears in any way from the deed itself what corporation was intended.^ A misnomer of a corporation has the same legal effect as the misnomer of an individual ; ^ it is only necessary in either case that it should clearly appear from the deed by name or description that a particular grantee capa- ble of identification was intended. The corporation intended may be shown upon proper averments and proof.'' An abbrevia- tion of the name of a corporation made a grantee in a deed does not invalidate it if the abbreviation may be explained and made definite by extrinsic evidence.^ Where at the time of the execution of a mortgage to a corpo- 1 Keith & Perry Coal Co. v. Bingham, 393, a deed recited that it was made by 97 Mo. 196, 10 S. W. Kep. 32. the Ranger Cattle Company, of " Shackel- 2 Lawrence v. Fletcher, 8 Met. 153. ford " County, while the execution thereof 3 Byam v. Bickford, 140 Mass. 31, 2 was by the Ranger Cattle Company, of N. E. Rep. 687. " .Throckmorton " County, which was its * Centenary M. E. Church v. Parker, correct name. The vice-president of the 43 N. J. Eq. 307, 12 Atl. Rep. 142; St. company executed the deed and affixed Louis Hospital v. Williams, 19 Mo. 609; its cor])orate seal, and it purported to be Douglas V. Branch Bank, 19 Ala. 659; the act of the corporation. It was held Berks, &c. Road v. Myers, 6 S. & R. 12, tliat the recital was a misnomer, and was 9 Am. Dec. 402 ; Pierce v. Somersworth, cured by the execution and acknowledg- 10 N. H. 369. ment. ^ Asheville Division v. Aston, 92 N. C. ' Kentucky Seminary v. Wallace, 15 B. 578, 16 Am. & Eng. Corp. Cas. 94. Mon. 35; Inhabitants v. String, 10 N. J. 6 Case of Lynne Regis, 10 Coke, 122 b. ; L. 323 ; New York Annual Conference v. Carlisle v. Blamire, 8 East, 487 ; Ryan v. Clarkson, 8 N. J. Eq. 541 ; Medway Cot- Martin, 91 N. C. 464, per Merriman, J. ; ton Manuf. Co. v. Adams, 10 Mass. 360 ; Den V. Hay, 21 N. J. L. 174; Inhabitants Bower v. Bank, 5 Ark. 234; AVoolwich V. String, 10 N. J. L. 323; Culpepper, &c. v. Forrest, 2 N. J. L. 84 ; Bruce v. Cro- Soc. V. Diggcs, 6 Rand, 165, 18 Am. Dec. mar, 22 Uj). Can. Q. B. 321. 708. In Ballard t;. Carmichael, 83 Tex. » Aultman & T. Manuf. Co. v. Rich- 355, 18 S. W. Rep. 734, 17 S. W. Rep. ardson, 7 Neb. 1. 207 j 1:40. j I'AUTIKS TO DKKDS AND THEIR DESCRIPTION. ration its name had recently been ehaiiged, the ni >rti;a^e made to it by its former mime is valid; and in a I'oit clDsnic suit bv the corporation the mortgagor cannot contend that at the date of the mortgage no snch corporation existed, though the <;orporation in its comphiint should aver tiiat the nmrtgage was executed to the corporation under the name stated in the mortgage.^ 240. If there are two corporations of the same nanae, and a conveyance is made to one of them, the grantee may be identified by evidence aliunde, as, for instance, by evidence as to which cor[)oration jiaid the purchase-money and received deliv- ery of the deed. The Virginia Iron Company of Dulutli at- tempted to amend its articles of associa,tion by clianging its name to the Kentucky Iron Company, but the attempt failed, because the secretar}^ of state returned the certified amendment stating that there was another corporation of the same name having its place of business at Duluth. Before this fact was known, the Virginia Iron Company purchased from one Milligan land which he cimveyed to it under its new name of Kentucky Iron Com- pan3\ To cure this error the Virginia Iron Company obtained a reconveyance to Milligan from the original Kentucky Iron Com- pany, which was executed by the president and secretary of the company without express authority from the directors or stock- holders of the company, and Milligan conveyed to the Vii"ginia Iron Company. A third person, seeing upon recoixl the conve}'- ance to the Kentucky lion Company, made a sale of property to the oi'iginal company, taking in pajMuent shares of its coi'poi'ate stock. This person claimed that the title to the land conveyed by i\Iilligan to the Kentucky Iron Company passed to the i-eal company of that name, and he asked to have the deed of that company to Milligan and his deed to the Virginia Iron Com|)any cancelled. It was held that the title did not pass to the Ken- tucky Iron Company, because it did not purchase the land and was not the intended grantee. The deed was not delivered to it, nor to any one for it. The land was purchased by the Virginia Iron Company and the deed delivered to it, and the title passed to it under another name.^ 1 City Bank j;. McClellan, 21 Wis. 112. Rep. 9.5.5. Gilfillan, C. J., sairl : "The 2 riarkp ?•, Milligan (Minn.), 59 N. W. only question, then, is, were Milligan and 208 CORPORA I IONS AND ASSOCIATIONS AS GRANTEES. [§§ 241, 242. 241. A deed to the inhabitants of a town or county not in- corporated passes no title. ^ A deed to the '' board of diree'tors" of ii town not incorporated is also a nullity.^ A deed " to the members" of a cbiiruh is void for the want of certainty as to the grantees.^ A crant to the inhabitants of a certain neiirhborhood not incur- porated is void if tlie neii^diborhoud is not defined with certainty, or its exact limits cannot be ascertained. It is a conveyance only to the persons who were inhabitants at the time of the grant, and these cannot be ascertained if the territory of the neighborhood is not defined."^ A grant to an unincorporated association may be construed as a grant to the individual members of the association, if these can be ascertained to a certainty.^ If a mortgage be made to persons described as trustees of an association which is not incorporated, the legal title vests in such persons. Inasmuch as they are trustees they take as joint ten- ants, and all must join in an assignment of the mortgage or otiier conveyance of their title. An assignment of the mortgage by the association is invalid, as that has no title.^ 242. An unincorporated society or association has no legal capacity to take or hold real property.' If the jiersons belong- ing to the society or association can be di^termined with certainty, they may perhaps take title as individuals. So a grant to the inhabitants of a certain territory clearly defined may be a valid grant to such persons as were inhabitants at the time of the the Virginia Iron .Company, or was either of them, estopped to deny that the deed passed tlie title to the Kentucky Iron Company by reason of the facts that it was ])lace(l on record ; that plaintiffs saw it there, and were thereby induced to be- lieve that company to be the owner of the land, and in consequence to exchange their leases for its stock 1 The parties having acted in good faith, and in iirno- rance of the fact that there was already existing, at the time of the attempted change of name, a corporation styled the Kentucky Iron Company, there could be no estoppel, except on the jiroposition that it was culpable negligence not to know of the existence of such other cor- poration, and not to know that the at- VOL. I. tempted change of name had failed. We do not think it was culpable negligence, such as will form the basis of estoppel." 1 Jackson v. Corey, 8 Johns. 385 ; Han- beck V. Westbrook, 9 Johns. 73 ; Greene V. Dennis, 6 Conn. 293, 16 Am. Dec. .58; Sloane v. McConahy, 4 Ohio, 157, 169. 2 Douthitt V. Stinson, 63 Mo. 268. 3 Morris v. State, 84 Ala. 457, 4 So. Rep. 628. 4 Thomas v. Mar^bfield, 10 Pick. 364. ^ By am v. Bickford, 140 Mass. 31, 2 N. E. Hep. 687 ; Kclley v. Bourne, 15 Ore. 476, 16 Pac. Rep. 40. ^ Austin V. Shaw, 10 Allen, 552. '' (ierman Land Asso. v. Scholler, 10 Minn. 331 ; Douthitt v. Stinson, 63 Mo. 268. 209 §^;^ 243, 244.] parties to dekds and thkir DKSCRirnoN. grant. Hut a grant to the inluibitiints of a neighborhood not defineil is void for iiiiciMlaiiity.' It may be, however, that such a deed is void because of the uncertainty as to tlie persons who are beneficially interested under the (rust, as where the trust was for a voluntary association for the purpose of acquiring homesteads for the members in the pub- lic lauds.- 243. A deed to persons named, and their associates, is void for uncertainty. But a deed to persons named, for themselves and their associates, being a settlement of friends on the west side of Seneca Lake, vests the legal estate in such persons as trus- tees for the association. The grant is free from uncertainty, because it is evident that the associates had only an equitable interest.''^ A grant to several persons by name for and in behalf of themselves and their associates, the inhabitants of a town named, is a valid grant, inasmuch as the persons named would take title as trustees."^ IV. Partnerships as G-rantees. 244. A deed to persons named, described as constituting a firm, conveys a legal title to such persons as tenants in common, though such title may be subject to partnership equities.^ A mortgage to the " City Investment and Advance Com- pany "' is a mortgage to the individuals composing the firm using this name and style ; and when it is ascertained who the persons are who carry on the business under that name, the deed operates to convey the property to them.^ A mortgage to the "Chicago Lumber Company," under which name two persons conducted 1 Thomas v. Marshfield, 10 Pick. 364. 405 ; Murray v. Blackledge, 71 N. C. 492 ; 2 German Land Asso. v. Scholler, 10 Printup v. Turner, 6.5 Ga. 71 ; Hunter v. Minn. 331. Martin, 2 Rich. 541 ; Orr v. How, 55 Mo. 3 Jackson v. Sisson, 2 Johns. Gas. 321. 328 ; Baldwin v. Richardson, 33 Tex. 16 ; * North Hempstead v. Hempstead, 2 Wilson v. Hunter, 14 Wis. 683; Sherry Wend. 109; Natchez v. Minor, 9 Sm. & v. Gilmore, 58 Wis. 324, 17 N. W. Rep. M. 544, 48 Am. Dec. 727. 252 ; Jones v. Neale, 2 Pat. & H. 339, 5 Morse u. Carpenter, 19 Vt. 613 ; Mc- 350; Hoffman v. Porter, 2 Brock. 156; Cauley v. Fulton, 44 Gal. 355 ; Planchard Newton v. McKay, 29 Mich. 1 ; Kelley V. Floyd, 93 Ala. 53, 9 So. Rep. 418; ?;. Bourne, 15 Greg. 476, 16 Pac. Rep. 40. Jones V. Morris, 61 Ala. 518; Lindsay i;. ® Maugham v. Sharpe, 17 C B. N. S. Hoke, 21 Ala. 542 ; Slaughter v. Doe, 67 443. Ala. 494; Caldwell v. Parmer, 56 Ala. 210 PARTNERSHIPS AS GF.ANTEES. [§ 244. their business, maybe foreclosed by them under proper allegations that they conducted business under that name.^ If the partnership name contains the surname or surnames of one or more of the partners, the instrument will have legal effect as a conveyance or mortgage to the partner or partners thus named.2 Under this rule it is not necessary that the full names of such partners be given. Thus a deed to "• Farnham & Love- joy," of a town named, is a sufficient conveyance to Sumner W. Farnham and James A. Lovejoy, who are shown to constitute the firm doing business under such partnership name ; ^ for resort may always be had to facts beyond the instrument for the purpose of applying the description or designation of the persons named to the persons so described.* Where the grantees described in a deed are A, B & Co., the firm consisting of A and B, and other persons described only under the general term "company," A and B take the title for themselves and in trust for those associated with them.'^ It is proper, however, for all the members of such firm, though their names do not appear in the firm name and style, to join in a con- veyance of land acquired under a conveyance to the partnership ; and it is not necessary, though desirable, that the deed should recite that these persons constituted the partnership.^ A deed to A & Co. vests the legal title in A alone.'^ If land be sold to a partnership, and a deed be made to it in the firm name of Blanchard & Burrus, but one of the partners dies before the deed is delivered, it conveys to the surviving part- ner an undivided half interest in the land. The heirs at law of 1 Chicago Lumber Co. v. Ashworth, 26 W. Rep. 788; Morse v. Carpenter, 19 Vt. Kans. 212. 613. 2 Dunlap V. Green, 60 Fed. Rep. 242 ; ^ Beaman v. Whitney, 20 Me. 413 ; Ly- Morse v. Carpenter, 19 Vt. 613 ; Beaman man v. Gedney, 114 111. 388, 29 N. E. Rep. V. Whitney, 20 Me. 413 ; Sherry v. Gil- 282, 5.5 Am. Rep. 871. more, 58 Wis. 324, 17 N. W. Rep. 252; ^ Lyman v. Gedney, 114 111. 388, 29 N. Jones V. Neale, 2 Pat. & II. 3.39 ; Menage E. Rep. 282, 55 Am. Rep. 871. V. Burke, 43 Minn. 211, 45 N. W. Rep. " Ketchum v. Barber (Cal.), 12 Pac. 155; Gille v. Hunt, 35 Minn. 357, 29 N. Rep. 251 ; Winter v. Stock, 29 Cal. 407, W. Rep. 2 ; Foster r. Johnson, 39 Minn. 89 Am. Dec. 57; Arthur t>. Weston, 22 378, 40 N. W. Rep. 255; McMurry v. Mo. 378; Percifull y. Piatt, 36 Ark. 456, Fletcher, 28 Kans. 337. 464; Chavcner v. Wood, 2 Oreg. 182; 3 Menage I'. Burke, 43 Minn. 211, 45 Lindsay v. Jaffray, 55 Tex. 626, 641; N. W. Rep. 155. Moreau v. Saffarans, 3 Sneed, 595, 67 * Dunlaj) I'. Green, 60 Fed. Rep. 242; Am. Dec. 582. Wakefield v. Brown, 38 Minn. 361, 37 N. 211 § 245.] PARTIES TO DEEDS AND THEIR DESCRIPTION. tlio ilecenscd partner would sii .eiHHl to his iqiiitable interest, the purcliasi'-moiioy Jiaving been paid, and the grantor would be com- pelled to (VMivey such interest to them.' 245. Some courts have taken the distinction that a deed to a partnership by the partnership name alone does not pass the legal title to the land, but only an equitable title. ^ A part- nership is not recognized in law as a person, and the legal title to real property can only be held by a person, or by a corporation, which is deemed such at law. A deed to a partnership may be given effect as a contract to convey.^ The individual members of the firm, in whom the legal title should vest, may be identi- fied by extrinsic evidence. By implication the deed vests in the members of the firm the power to convey.* But even where this distinction is taken between the legal and equitable title, it is declared that where a partnership as a grantee in a deed contains the name or names of one or more of the partners, the legal title vests in the partner or partners so named.^ 1 Blancliiird v. Floyd, 93 Ala. 53, 9 So. melsberg v. Mitchell, 29 Ohio St. 22, 52 ; Kep. 418. Frost v. Wolf, 77 Tex. 455, 14 S. W. Rep. - Percifull v. Piatt, 36 Ark. 456 ; Land 440 ; Baldwin v. Richardson, 33 Tex. 16 ; Asso. V. Scholler, 10 Minn. 331 ; Morrison Lowery v. Drew, 18 Tex. 786. «;. MenJenhall, 18 Minn. 232; Tidd v. 3 Dunlap r. Green, 60 Fed. Rep. 242 ; Rines, 26 Minn. 201, 2 N. W. Rep. 497 ; Kyle v. Roberts, 6 Leigh, 495. Gille V. Hunt, 35 Minn. 357, 29 N. W. * Dunlap v. Green, 60 Fed. Rep. 242. Rep. 2 ; Foster v. Johnson, 39 Minn. 378, ^ Gille v. Hunt, 35 Minn. 357, 29 N. W. 40 N. W. Rep. 255 ; Townshend v. Good- Rep. 2 ; Foster v. Johnson, 39 Minn. 378, fellow, 40 Minn. 312,41 N. W. Rep. 1056; 40 N. W. Rep. 255. Dunlap V. Green, 60 Fed. Rep. 242 ; Ram- 212 CHAPTER XV. RECITALS IN DEEDS. I. Use and effect of recitals, 246-250. I III. Estoppel by recitals, 256-262. II. Recitals as evidence, 251-255. I I. Use and Effect of Recitals. 246. In the ordinary forms of deeds in general use in this country there are no formal narrative or introductory recitals, and there is no need of them in conveyances in fee simple by ab- solute owners, though they are useful in more elaborate convey- ances, and especially in deeds of settlement and deeds creating partial interests or subordinate estates. This part of a deed for- merly had a recognized place and was seldom omitted, though it never was a necessary part of a deed either in law or equity; and the tendency has long been in the direction of dispensing with such recitals. In modern conveyancing brevity is deemed a vir- tue, and recitals are usually confined to a brief statement of the source of the grantor's title, of the capacity in which he executes the deed, or of its intended operation and effect.^ Such recitals are a key to the operative part of the deed. These recitals in deeds of indenture immediately follow the description of the par- ties, though at the present time, in deeds jioll, such recitals as are used are often placed nt the end of the description of the prop- erty, and recitals may be inserted in connection with the words of conveyance, or in tlie in testimonium clause. The office of nn native recitals is to state the facts and instru- ments through which the grantor's title is deduced ; and the office of introductory recitals is to explain the motive of the grantor in making the conveyance. It is quite important that the immedi- ate source of the title should be stated somewhere in the deed. In this country, at the present day, the accountof the title is quite informal, and consists merely of a reference to the deeds under 1 Moore v. Magrath, 1 Cowp. 9, per Mansfield, J. 213 §§ :24T--249.] kkcitals in dkkds. which the gvantur deiivos liis title. This is usually inserted after the di'scripiioii ot" thi> property. Where this is done witli care in sncci'ssive deeds of the same land, t'ach recital carries back the title one step, and together the lecitals make a connected history of the title. Careful conveyancers at the present time seldom fail to make accurate reference to the grantor's source of title. 247. Recitals should be confined to statements of facts, and should not contain inferences of law. Thus, for instance, if the title has come to the grantor by descent, the recital should state what is necessary to prove his heirship, and not merely that he took it as heir of a person named ; or, if the title came to him by devise, recitals should be made of the death of the testator seised of the land, of the probate of his will, and of the devise of the land to the grantor, and not merely that the grantor is a devisee of the land.i Recitals of facts in a patent for a land grant bind both the officers of government and the grantee, as well as those in privity with him. But recitals of an opinion of the executive officers as to matters of law are not conclusive.^ 248. Recitals should not contain negative statements ; as, for instance, that the testator died without altering or revoking his will. They should not contain matters not relevant to the subject-matter and intended operation of the deed; as, for in- stance, executors having, in general, no powers over real estate passing by a will, there should be no recital of the appointment of executors. It is not strictly necessary to state the date and place of probate of a will, though such a statement is a convenient one and may properly be added. In reciting powers under a will or settlement, only so much should be stated as is sufficient to show the necessary' authority for executing the conveyance. ^ 249. When the recitals agree with the operative part of a deed they have no legal effect ; and, if the operative part of a deed is clear and unambiguous, recitals at variance with it are of no effect. The operative clause, when clear, always controls the recitals.'* An operative clause in definite terms controls reci- 1 5 Bythewood's Free. 4th ed. p. 139. * Bailey v. Lloyd, 5 Russ. 330, 344; 2 McGarrahan v. New Idiia M. Co. 49 Ilolliday v. Overton, 14 Beav. 467 ; Dawes Cal. 331. V. Tredwcll, 18 Ch. D. 354, 358, per Jes- 3 5 Bythewood's Prec. 4th ed. pp. 140, scl, M. R. ; Leggott v. Barrett, 15 Ch. D. 141. 306, 311, per Brett, L. J.; Alexander v. 214 USE AND EFFECT OF RECITALS. [§ 250. tills In general terms.i On the other hand, general words in the operative clause may be restrained by a particular recital.^ The operative part of a power of attorney appointed attorneys with- out in terms limiting the duration of their powers; but it was preceded by a recital that- the principal was going abroad, and was desirous of apjDointing attorneys to act for him during his absence. It was held that the recital controlled the generality of the operative part of the instrument, and limited the exercise of the powers of the attorney to the period of the principal's absence from this country .^ 250. Where there is a discrepancy between the recitals and the operative part of the deed, the latter, if certain in its terms, controls.* Thus, where the grantor in a preamble to a deed recited that he had given a certain parcel of land to the county to be used as a site for a court-house, but the operative part of the deed did not specify the purpose for wliich the land was given, but conveyed it for the use of the county, it was properly held that the preamble merely expressed the motive which induced the grantor to make the conveyance, and did not create a condition that the land should be used for a court-house.^ The description of the property in the operative clause, when made in language that admits of no uncertainty, is never con- trolled by mere lecitals.^ Crosbie, L. & G. 145, per Lord St. Leon- ards; Jenner v. Jenner, L. R. 1 Eq. 361 ; Walsh V. Trevanion, 15 Q. B. 733,751, per Patteson, J. ; Rooke v. Kensington, 2 K. & J. 7.53, 769; Ingleby v. Swift, 10 Bing. 84; Yoimg i-. Smith, L. R. 1 Eq. 180, 183, 35 Beav. 90. In this case, Romilly, M. R., said : " It is of the great- est consequence to keep distinct the dif- ferent parts of deeds, and to give to reci- tals and to the operative part their proper iffccts." ' Dawes V. Tredwell, 18 Ch. D. 354, 358, iier Jcssell, M. R. - Knight V. Cole, 1 Show. 150, per Lord Holt; Jenner v. Jenner, L. R. 1 Eq. 361 ; Cln'ldeis V. Eardley, 28 Beav. 648 ; Ex jiuiir. Dawes, 17 Q. B. D. 275 ; Walsh v. Trevanion, 15 Q. B. 733; Gray?;. Lim- erick, 2 De G. & Sm. 370. 3 Danby v. Coutts, 29 Ch. D. 500. * Hammond v. Hammond, 19 Beav. 29 ; Young V. Smith, L. R. 1 Eq. 180, 183. 5 Miller v. Tunica Co. 67 Miss. 651. ^ Howard v. Shrewsbury, L. R. 17 Eq, 378, per Je.'^sel, M. R. ; Ex parte Young, 4 Deac. 185; Huntington v. Havens, 5 Johns. Ch. 23, 27, per Chancellor Kent. In Barratt v. Wyatt, 30 Beav. 442, Ro- milly, M. R., said : "As to the construc- tion of the settlement, I do not dispute the proposition which was argued, that, if you find in a settlement recitals indicating various parcels enumerated, from whence it is to be inferred, from reading the re- cital alone, that these parcels and these alone are to be included in and made .sub- ject to the provisions of the deed, but yet you find that in the operative part of the deed one or two of these ])arccls are omitted, the court may be of opinion, upon the construction of the deed, that the par- 215 $ ±'A.] kechals in dkhds. Wliore, howt'ver, the oiHuutive part of a deed contains an am- bii;iiitv, a clear recital of the same matter will be <^iven control- liiii>- otYect. Resort may always be had to a recital to explain such ambiguity. 1 " We may consider it settled by authority that where the Avords of a covenant are ambiguous and difficult to deal with, we may resoit to the recitals to see whether they throw any light on its meaning." ^ II. Recitals as Evide7ice. 251. A recital is not evidence in favor of the grantor except as to his acts in an official capacity. A recital that the grantor is the heir at law of a person deceased, who was the former owner of the land, is no evidence as against a stranger of either the heirship or the death of such former owner. The recital is, of course, no evidence in favor of the grantor, and it is no better evidence in favor of any one claiming under the grantor. It is no more competent as evidence, as against a stranger to the deed, of the facts stated, than it would bo if embodied in a letter or any other paper.^ Such a recital is merely a claim of heirship.'* Recitals in an executor's deed are not competent to establish the testator's will, the probate thereof, and the proceeding ending in the execution of the deed, as against persons not in privity with the grantor. The execution and probate of the will, the appointment and qualification of the executor, the provisions of the will, and the probate proceedings, must be proved by compe- tent evidence without the aid of any recitals in the deed.^ A recital, in a deed, of a former deed between the same par- ties, proves as between the parties so much of the former deed as is recited, but no more.^ eels which are omitted in the operative Michell's Trusts, 9 Ch. D. 5 ; In re Neal's piirt are omitted hy mistake, and are not Trusts, 4 Jur. N. S. 6 ; Gwyn v. Nenth included in the provisions of the deed. Canal Co. L. TJ. .3 Kx. 209, 219 ; Walsh And tlie converse of that proposition is v. Trevanion, 1.5 Q. B. 73.3; Yonnj,' r. al.so true: parcels may be included in the Smith, L. R. 1 Eq. 180, 3.5 Beav. 90. operative part of the deed which the re- '^ In re Michell's Trusts, 9 Ch. D. 5, citals and the rest of the deed show to 9, per Jessell, M. R. have been inserted there by mistake. 3 Costello r. Burke, 63 Towa, 361. There are several cases to that effect, and * Potter v. Washburn, 13 Vt. 558, 37 amongst them the well-known case, before Am. Dec. 615. Lor.i Mansfield, of Moore ;;. Magrath, 1 ^ Miller v. Miller, 63 Iowa, 387. C(,«p. 9." « Gillett V. Abbott, 7 Ad. & E. 783. 1 B.iilev V. Llovd, 5 Hnss. 344 ; In re 216 RECITALS AS EVIDEXCI':. [§§ 252-254. 252. Recitals in ancient deeds are competent evidence for some purposes, as, for example, to show pedigree,^ or to show the position of a natural boundary.'-^ But such recitals are not aduiissible to enlarge the estate granted in a prior deed of the same grantor, to the impairment of an intervening title.^ Where a conveyance would be competent evidence as an ancient deed without proof of its execution, the power under which it purports to have been executed will be presumed ; and a recital of such power will be held to be sufficient evidence of the exist- ence of such power and of its execution ; ^ and a recital of facts equivalent to a power of attorney will have a like effect.^ 253. Recitals in an administrator's deed of the acts re- quired by statute in making a sale are prima facie evidence of their performance. The administrator is an officer of the law, acting under the obligations of his oath of office, and it is presumed that he does his duty, and fulfils the requirements of the statute, until the contrary is proved.^ This is particularly the case after a lapse of time which makes the instrument an ancient deed." After twenty years' acquiescence by the heirs of an intestate in the possession of land under a sale by the admin- istrator, recitals in his deed may be regarded in aid of the pre- sumption that the administrator had taken the oath of office, and had posted notifications according to law.^ A deed by an executor, administrator, guardian, or other person acting in like capacity, should contain recitals of the power under which the grantor acts in making the conveyance. If a person in such representative capacity executes a deed without such recitals, and signs it with the addition merely of the words indi- cating the capacity in which he intends to act, as, for instance, "administrator," etc., the deed is strictly his own personal deed.^ 254. A sheriff's deed should contain recitals sufficient to 1 1 Grcenl. Ev. § 104. 6 Williams v. llardie (Te.\. Civ. App.), - Drury v. Midland 11. Co. 127 Mass. 21 S. W. Kep. 267; Veramendi v. Iliitch- .'571. in.s, 48 Tex. .531,' .5.53. 3 Whitney v. Wheeler Cotton Mills, « Doe y. Henderson, 4 Ga. 148, 48 Am. 151 Mass. 396. Dec. 216; Worthy v. Johnson, 8 Ga. < Doe V. I'help.s, 9 Johns. 160; Wil- 230. Hams I'. Hard ie (Tex. Civ. App ), 21 S. ' Stevenson v. McKeary, 12 Sm. &. W. Kep. 267 ; Johnson v. Timmons, 50 M. 9. Tex. 521, 534; Watrous v. McGrew, 16 ^ Gray v. Gardner, 3 Mass. 399. Tex. .506, 513 ; Harrison v. MeMurray, '•* IJohb i'. Barnum, 59 Mo. 394. 71 Tex. 122, 128, 8 S. W. Rep. 612. 217 § 255.] RECITALS IN DEEDS. show the authority under which he acted in making the sale. Tlu'V should show the authority to sell, and a sale made substan- tially according to law.^ All the facts which constitute tiie foun- dation of title, and without which the sale would be void, must be recited.^ But recitals other than tliose which show the sheriff's author- ity, and his acts in executing it, are not necessary, and may be omitted even when required by statute. Thus a statutory pro- vision, that the sheriff's deed shall recite all the executions issued upon a judgment, is regarded as directory merely, in so far as it relates to other executions than that under which the sheriff acts.^ The deed need not recite the amount of the judgment and the names of the parties, if the execution is valid.* A misrecital of facts authorizing a sale by the sheriff does not avoid his deed, if the necessary facts actually exist.^ In the case of a sale by a tax-collector the deed must show by its recitals that the statute has been strictly complied with.^ 255. Recitals in a deed made by a mortgagee under a power of sale, of the giving of due notice of the sale, in con- formity with the requirements of the statute and in* pursuance of the provisions of such mortgage, giving the particulars of the notice, are prima facie evidence of such notice." The mortgagee's recitals in such a deed bind not only the mortgagee but as well the mortgagor, equally as if the deed were executed by him in person, for the mortgagee is his attorney in fact.^ 1 Tanner v. Siine, 18 Mo. 580, 59 Am. Dec. 370; Huggins v. Ketchum, 4 Dev. & Dec. 320 ; Lackey v. Lubke, 36 Mo. 115 ; B. 414. If the statute requires a recital Martin u. Bonsack, 61 Mo. 556 ; Buchanan of the judgment, a deed without such V. Tracy, 45 Mo. 437; Stewart u. Sever- recital is void. Dufour w. Camfranc, 11 ance, 4.'} Mo. 322; Strain v. Murphy, 49 Martin (I.a.), 607, 13 Am. Dec. 360. Mo. 337. * Perkins v. Dibble, 10 Ohio, 433, 36 2 Armstrong v. McCoy, 8 Ohio, 128. Am. Dec. 97 ; McGuire v. Kouns, 7 T. B. 3 Jixck.son V. Pratt, 10 Johns. 381 ; Jack- Mon. 386, 18 Am. Dec. 187. son V. Davis, 18 Johns. 7; Armstrong v. ^ Martin v. Wilbourne, 2 Hill, 395, 27 McCoy, 8 Ohio, 128, 31 Am. Dec. 435 ; Am. Dec. 393; Harrison v. Maxwell, 2 Perkins v. Dibble, 10 Ohio, 433, 36 Am. Nott. & Mc. 347, 10 Am. Dee. 611. Dec. 97 ; Buchanan v. Tracy, 45 Mo. 437 ; ^ Brnok.s v. Rooney, 1 1 Ga. 423, 56 Am. Ogden V. Walters, 12 Ivans. 282 ; Bet- Dec. 4.30, per Lumpkin, J. tison V. Budd, 17 Ark. .546 ; Humphry ' Tartt v. Clayton, 109 111. 579. V. Beeson, I Greene (Iowa), 199, 48 Am. ^ Simsou v. Eckstein, 22 Cal. 580. 218 ESTOPPEL BY RECITALS. [§§ 256, 257. III. Estoirpel by Recitals. 256. An estoppel by recital binds the grantor and all who take his estate, privies in blood, privies in estate, and privies in law.i The recital does not bind persons who are not privies of the grantor, such as claimants by adverse or prior title, or the grantor's creditors.^ A party to a deed must be, sui juris, competent to make an effectual contract, to be estopped b}' a recital.'^ In a deed by a corporation, a recital by the person who executes it in behalf of the corporation, that he was duly authorized to exe- cute it, estops him to deny that he was so authorized."* But, even as between the parties, a recital is not binding when the proceeding is really collateral to the deed and the title thereby conveyed. In such case the facts recited may be disputed.-^ A conveyance is not affected by a false recital made by the same grantor on the same day in conveying an adjoining lot to a different gi'antee.^ 257. A recital, to have the effect of an estoppel, must be a distinct recital of particular facts, and not a recital in general terms. Where a distinct statement of a particular fact is made in a recital, and the parties act with reference to that recital, it is not, as between them, competent for the party bound to deny the recital.' " It is said that the recitals of a deed cannot operate by way of estoppel. But the distinction which has always been 1 Strouirhill v. Buck, 14 Q. B. 781 ; Doe V. Errington, 6 Bing. N. C. 79 ; Bank of U. S. V. Benning, 4 Cr. C. C. 81 ; Car- ver V. Jackson, 4 Pet. I, 83; West v. Pine, 4 Wash. 691 ; Doe r. Porter, 3 Ark. 18, 36 Am. Dec. 448 ; Jackson v. Park- hurst, 9 Wend. 209 ; Chautauqua Co. Bank v. Risley, 4 Den. 480 ; Usina i'. Wilder, 58 Ga. 178; Rangely v. Spring, 28 Me. 127, 142 ; Stoutimorc v. Clark, 70 Mo. 471 ; Hasenritter v. Kirclihoffer, 79 Mo. 239 ; Sim.'^on v. Eckstein, 22 CfiL .580; Byrne v. Morehouse, 22 111. C03 ; Pinckard v. Milinino, 76 III. 4.53 ; Kinsman V. Loomis, 1 1 Ohio, 47.5, 478 ; Doe v. Howell, 1 Honst. 178. 2 Battersbee v. Farrington, 1 Swans. 106; West V. Pine, 4 Wash. 691; Dc Farges v. Ryland, 87 Va. 404 ; Allen v. Allen, 45 Pa. St. 468. ■^ Bank of America v. Banks, 101 U. S. 240; Jackson r. Vanderheyden, 17 Johns. 167, 8 Am. Dec. 378. ■* Stow V. Wyse, 7 Conn. 214, 18 Am. Dec. 99. 5 Carpenter v. Bullcr, 8 Mees. & W. 209, 213 ; Bank of America v. Banks, 101 U. S. 240 ; Carter v. Carter, 3 K. &. J. 617, per Wood, V. C. ; Ex parte Morgan, 2 Ch. D. 72. 6 Bay V. Posner (Md.), 29 Atl. Rep. 11. ^ Carpenter v. Buller, 8 Mees. & W. 209 ; Bowman v. Taylor, 4 Nev. & M. 262 ; Heath v. Crcalock, L. R. 10 Ch. 22 ; Crofts I'. Middleton, 2 K. & J. 194. 219 ^§ 258, 259.] RECITALS IN DKEDS. taken is this, — that a general recital will not operate as an estop- pel, but the recital of a particular fact will have that elTect." ^ The recital must also be of a material fact and of the essence of the contract.'-^ As between the immediate parties to a deed, a recital not necessary to the conveyance does not amount to an estoppel.^ A party to a deed is not estopped by recitals contained in other deeds, through which the title is derived, to which he was not a party. Lord Denman said:* " Is it true as a genei-al proposi- tion that a party so claiming adopts the statement of facts in an anterior deed which goes to make up his title? We are aware of no authority for such a doctrine." 258. A recital, to operate as an estoppel, must be clear and without ambiguity.^ " It is a rule," says Lord Tenterden, " that an estoppel should be certain to every intent, and therefore, if the thing be not precisely and directly alleged, or be mere matter of supjaosal, it shall not be an estoppel ; nor shall a man be estopped where the truth appears by the sauie instrument, or that the grantor had nothing to grant, or only a possibility." ^ 259. Only the parties to a deed and their privies can take advantage of recitals wiiicli operate as estoppels." ^ Privies in blood, as the heir ; privies in estate, as the feoffee, lessee, etc. ; privies in law, as the lords byescluat; tenant by the curtesie, tenant in dower ; the incumbent of a benefice ; and others that come under by an act in law, or in the post, — shall be bound and take advantage of estoppels."^ ^V stranger to the deed and title cannot take advantage of an estoppel created by it.^ "Every estoppel ought to be reciprocal," says Lord Coke, " that is, to bind both parties ; and this is the reason that regularly a stranger shall J Bensley c. Bunion, 8 L. J. Vh. 85, 87, '• Shelton v. Shelton, 4 N. & M. 857, per Lord Lyiidliiirst. The law was so 867, 3 Ad. & El. 265, 283. See, however, laid down by Lord Chief Justice Holt, in Doe v. Stone, 3 C. B. 176. the case of Salter v. Kidley, Shower's ^ Palmer i-. Ekin.s 2 Ld. Raym. 1550, Rep. 59 ; by Chancellor Kenf, in Hunting- 1553 ; Heath i\ Crealock, L. R. 10 Ch. 22 ; ton V. Havens, 5 Johns. Ch 23, 26. Hays v. Askew, 5 Jones L. 63. 2 Carpenter v. Buller, 8 :M. & W. 209, ^ i^jght v, Biickiiell, 2 B. & Ail. 278, 213; Fort v. Allen, 110 N. C. 183, 14 S. 281. E. Rep. 685 ; Brinegar v. Cliaffin, 3 Dcv. • Strvenaon v. McReary, 12 Srn. & M. 108. 9. 51 An). Dec. 102. 8 Osborne v. Endicott, 6 Cal 149, 65 « Co. Litt. 352 a Am. Dec. 498; Siinson v. Eckstein, 22 ^ Doe r. Errington, 8 Scott, 210; Al- Cal. 580. len v. Allen, 45 Pa. St. 468. 220 ESTOPPEL BY RECITALS. [§ 260. neither take advantage nor be bound by the estoppel." ^ Thus the owner of land conveyed it to several tenants, some of \\ hom afterwards joined with him in executing a mortgage to a strnng.r, containing a recital that he was the owner of a certain undivided part of the land. A creditor of such owner, after the execution of the mortgage and before it was recorded, attaclied the land, sold it on execution, bought it at the sheriff's sale, and then brought ejectment against the tenants in possession, who alleged that the judgment debtor had no title when the attachment was made. To this the creditor set up tlio recital in the mortgnge as an estoppel. It was held that the creditor could not take advan- tage of this recital, as it was not made to him or to any one under whom he claimed title. Mr. Justice Strong said : " Nor was the recital an admission or declaration made to the plaintiff at the time of the sale, or at an}' previous time. He was not a party to the mortgage. It w;is altogether res inter alios acta. If he saw it, and did not know it was a mistake or a falsehood, still he was not warranted in relying upon it. I agree that, if the plaintiff had been induced to purchase by anything said by these mortgagors at the sale, or by representations made by them to him previously, they would have been bound by their declarations, and pi-ecluded from averring the contrary to the prejudice of his title. But it is an unprecedented extension of the doctrine of equitable estoppel to hold that a man is bound to the world to make good what he has said to any one, if others choose to rely upon it. If every man may be held liable not only to parties and privies to his deed but to all mankind, to make good every introductory recital which the deed contains, it behooves him to avoid all recitals, and be careful what scrivener he employs. Such is not the law, and there are no authorities which assert it. The plaintiff, then, being a stranger to tliis mortgage, neither a party nor a privy, cannot use it as the basis of an equitable estoppel." ^ A recital by one tenant in common in a deed to a stranger can- not affect any right of the otlier tenant in common.'^ 260. "Whether a recital estops one party or all the parties to the deed depends upon the intention to be gathered from the whole instrument. " Where a recital is intended to be a ^ Co. Litt. 352 a. ^ Thomason v. Dayton, 40 Ohio St. 2 Sunderlin v. Struthers, 47 Pa. St. 411 , 6.3. 423. 221 § 260.] RECITALS IN DKKDS, slatonuMit wiru'li all the parties to a deed have imitually agreed to aihnit as true, it is an estoppel upon all. " It seems elear that, where it can be collected rrom the deed that the parties to it have ac;reed upon a certain admitted state of facts as the basis on -whirh they contract, the statement of those facts, though but in the way of recital, shall estop the parties to aver the contrary.' But when it is intended to be the statement of one party only, the estoppel is confined to that party." ^ Thus a recital, in an instrument executed by a husband and. wife of one part and a trustee of the other, that it had been agreed between them before their marriage that a certain sum of money belonging to the intended wife should be secured to her separate use, does not purport to be of any fact within the know- ledge of the trustee, and he does not affirm the truth of it, but he is at liberty to assert that there was no valid agreement for a marriage settlement ; that the agreement being by parol and the settlement being actually made after marriage, it was invalid as against creditors. The trustee afterwards having been made an assignee of the husband for the benefit of his creditors, he was held to be bound to apply the property as the law would apply it, and not in accordance with the invalid settlement.^ Where the recitals refer to what the grantors have done, or intend to do, among themselves, and in which the grantees have no part or interest, and include a reference to a previous deed of marriage settlement between the grantors, and there is no evi- dence that the grantees knew anything of the recited deed except from the recitals, the wording of which indicates that the scrive- ner did not have the recited deed before him, these recitals will be regarded as the statement of the grantors only. The grantees 1 Young V. Raincock, 7 C. B. 310, 338, sides, an estoppel, as a general rule, does per Coltman, J. not grow out of a recital ; to give it that ■- Sirougliill V. Buck, 14 Q. B. 781 ; Doe effect, it must show that the object of the r. Brooks, 3 Ad. & E. 513. To like effect parties was to make tlie matter recited a in Bower v. IMi Cormick, 23 Gratt. 310, ,/?.ref//«c< as the basis of their action." 328, Christian. J., said : "A mere recital » Borst ?;. Corey, 16 Barb. 136; Wil- does not conclude all the parties : there lard, P. J., said : " A mere recital never must be a direct affirmation, so intended concludes a party. There must be a direct by all the parties, in order to bind all; affirmation. And a recital by A and B and this intention may be gathered from can never furnish evidence against C. It the whole instrument." In Hays r. Askew, is never evidence against strangers." 5 Jones L. 63, 65, Pearson, J., said : " Be- 222 ESTOPPEL BY RECITALS. [§§ 261, 262. may show a mistake in such recitals by introducing in evidence the deed referred to in the recitals.^ Recitals will estop the grantee only under circumstances which would make the declarations of the grantor, made at the time of the execution of tlie deed, evidence against the grantee.^ 261. A recital that the property granted is subject to a mortgage described estops the grantee, and every one claiming under him, from denying the validity of the mortgage, if such mort- gage was in fact deducted from the amount of the consideration of the purchase.^ In such case the mortgagor provides for the payment of the mortgage out of the purchase-money. A pur- chaser of land upon execution, " subject to whatever sum might be due upon the property by virtue of a certain mortgage," can- not dispute the fact of the mortgage or its validity.* Failure or want of consideration as between the parties to a mortgage cannot be set up as a defence by a purchaser of the land '' subject to the mortgage." which is in fact a part of the con- sideration, whether he has expressly assumed the mortgage as a part of the purchase-money or not.^ A deed which recites that the property conveyed is subject to a mortgage in favor of a corporation estops a person claiming title through such deed from disputing the corporate existence of the mortgagee. '5 262. A recital may operate as a covenant where such opera- tion appears to have been intended by the parties,''^ and there is no express covenant in the deed relating to the same subject- matter.^ But " it is plain that the court ought to be cautious in spelling a covenant out of a recital of a deed ; " because that 1 Bower v. McCormick, 2.3 Gratt. 310. E. Eep. 299, 11 N. E. Rep. 792; Schee v. 2 Joeckel v. Easton, 11 Mo. 118. McQuilken, 59 Ind. 269; Studabaker v. 3 Jones on Mortgage,s, §§ 744, 1491 ; Marquardt, 55 Ind. 341. Pratt I'. Ni.xon, 91 Ala. 192; Freeman w. " Ilaseuretier v. Kirclihoffer. 79 Mo. Auld, 44 N. Y. 50, 37 Barb. 587 ; liar- 239. din V. Hjde, 40 Barb. 435 ; Johnson v. " Young v. Sniitli, 35 Beav. 87 ; Lay v. Thompson, 129 Mass. 398. Mottrani, 19 C. B. N. S. 479 ; Mouypenny * Conkling v. Secor Sewing Machine v. Monypcnny, 4 K. & J. 174, 3De G. & J. Co. 55 How. Pr. 269. 572, 9 H. L. C. 1 14 ; Sampson v. Ea.sterby, 5 Hoiton V. Davis, 26 N. Y. 495 ; Pratt 9 B. & C. 505, 6 Biug. 644 ; IloUis v. V. Nixon, 91 Ala. 192, 8 So. Hep. 751 ; Carr, Freem. Ch. 3, 2 Mod. 86. Price V. Pollock, 47 Ind. 362; West ?•. « Dawes v. Tredwell, 18 Ch. D. 354, Miller, 125 Ind. 70, 25 N. E. Rep. 143; per Jess.ll, M. R. ; Whitehill v. Gotwalt, Bennett v. Mattingly, 110 Ind. 197, 10 N. 3 P. & W. (Pa.) 313. 223 § 262.] RECITALS IN DKKDS. is not the part of a deed in which covenants are nsually ex- pressed.' Where it distinctly appears from the wliole deed tliat it was iiit(Muled to express by the recital the whole arrangement and transaction, the recital amonnts to a covenant. Thus, where it was recited that a debtor against whom an action had been com-^ nienced had agreed to convey to the creditor certain land to ss'cure the debt, and that it had been agreed that the debtor " shall be at liberty to sign judgment in said action, but tliat no execution shall issue thereon until this pi'esent security be realized," it was held that tlie recital amounted to a covenant by the creditor not to issue execution until the realization of the security. If the recital liad been that "it has been agreed that no execution shall issue," this would clearly have been a covenant to that effect, and the intention sufiiLiently appears from the words used.^ Where, after the description of the property, there was the further statement that it wns late the property of the grantor's father then deceased, it was held that the words did not amount to a covenant by the grantor that his father was seised of an indefeasible estate in fee simple, and that it vested in the grantor. The words used amounted to no more than a recital and a con- tinuation of the description of the land intended to be conveyed, especially as the grantor's deed contained a covenant of general warranty.^ 1 Farrall v. Hilditch, 5 C. B. N. S. 840. 3 Whitehill v. Gotwalt, 3 P. & W. (Pa.) ^ Farrall v. Hilditch, 5 C. B. N. S. 840, 313. 854. 224 CHAPTER XVI. CONSIDERATION. L Consideration in deeds of bargain I V. Antecedent debt as a valuable con- and sale, 263-267. II. Consideration for covenant to stand seised, 268, 269. III. What is a valuable consideration, sideration, 285-287. VI. Voluntary conveyances, 288-294. VII. Parol evid nee of the true consid- eration, 295-302. 270-279. I VIII. Recital of payment of considera- IV. Marriage is a valuable considera- tion, 303-310. tiou, 280-284. I. Consideratioyi in Deeds of Bargain and Sale. 263. At common law a feoffment was valid without any consideration, in consequence of the fealty or homage which was incident to every such conveyance. The law raised a considera- tion out of the tenure itself. The notion of a consideration, it is j)robable, first came from the court of equity, where it was held necessary to raise a use ; and when conveyances to uses were intro- duced, the courts of law adopted the same idea, and held that a consideration was requisite in a deed of bargain and sale.^ The principle that a consideration was requisite in a deed of bargain and sale was opposed by Plowden,^ and by Lord Bacon in his Reading on the Statute of Uses.'^ "But notwithstanding this strenuous opposition," said Chief .Justice Kent,* " the rule from chancery prevailed, and it has been long settled that a considera- tion, exyjressed or proved, was necessary to give effect to a deed of bargain and sale. I am not going to attempt to surmount the series of cases on this subject, though I confess myself a convert to the argument of Plowden." If the consideration be expressed, it need not be pi'oved that it was actually paid."' "An averment 1 Jackson v. Alexander, 3 Johns. 484, ' Bacon's Works. 492, 3 Am. Dec. 517, per Kent, C. J. ; * Jackson v. Alexander, 3 Johns. 484, Spring's v. Hanks, 5 Ired. 30. 492, 3 Am. Dec. 517. 2 Sharington i-. Strotton, 1 Plowd. 298, ■' Winans v. Peebles, 31 Barh. 371 ; 308. Wood V. Chapin, 13 N. Y. 509. VOL. I. 225 K 2()4.] CONSIDERATION. shall not be allowotl and taken at;'ainst, a deed, that there was no cons'uh'i'atiiiii j^'iven, wIkmi there is an express consideration upon the ileed." ^ If the consideration expressed be a mere nominal one, tlu> deed need not be snp[)oi-ted as against the grantoi- or those claiming nnder him. or as against a stranger, by showing what consitleration, or what other reason in addition to the will of the grantor, led to its execution.^ 264. The doctrine that a pecuniary consideration expressed in the deed is essential to a deed of bargain and sale was adopted by some of the courts in this country in the early cases. ^ It was a mere form, though an essential form. Chief Justice Kent, in the case from which we have ah-eady quoted, expressing his dissent from the genei-al rule, says : " The rnle requiring a consideration to raise a use has become merely nominal and a matter of form : for if a sum of money be mentioned, it is never an inquiry whether it was actually paid, and the smallest sum possible is sufficient ; nay, it has been solemnly adjudged that a peppercorn was sufficient to raise a use. Since, then, the efficacy of the rule is so completely g(me, we ought, in support of deeds, to t'onstrue the cases which have modified the rule with the utmost liberality."* Under this rule a deed " for a competent sum of money " suffi- ciently expressed a consideration.'^ So does a deed "for a certain sum ot" money in hand paid," without mentioning any sum ; ^ or a tleed '• for value received ; " ' or a deed for " dollars." ^ A general consideration was not sufficient to raise a use, as where one, for " divers good considerations," bargains and sells his land.^ There is too much generality in the statement. 1 Shep. Touch. 510. ^ Jackson v. Schoonmaker, 2 Johns. 2 Jackson v. Root, 18 Johns. 60; Rock- 230; VVortman v. Ayles, 1 Hannay, N. B. well I'. Brown, .54 N. Y. 210. 63. '^ Jackson v. Florence, 16 Johns. 47 ; '' Jackson v. Alexander, 3 Johns. 484, Jackson v. Sahrlwr, 16 Johns. 515, 528, 492,3 Am. Dec. 517. 8 Am. Dec. 357 ; Jackson i\ Cadwell, 1 » Wood v. Beach, 7 Vt. 522 ; Murray Cow. 622 ; Jackson v. Dclancy, 4 Cow. v. Khnzing, 64 Conn. 78, 29 Atl. Rep. 427 ; Jack-on v. Alexander, 3 Johns. 484, 244. 3 Am. Dec. 517; Jackson v. Root, 18 ^ Mildmay's Case, 1 Coke, 176 a. ; Be- Johns. 60 ; Okison v. Patterson, 1 Watts dell's Case, 7 Coke, 40 a. ; Ward v. Lam- & S. 395. hert, Cro. Eliz. 394; Fisher v. Smith, * Jackson v. Alexander, 3 Johns. 484, Moore, 569 ; Ro<,^ers v. Hillhouse, 3 Conn. 492, 3 Am. Dec. 517. 398 ; Jackson v. Scbriug, 16 Johns. 515, 8 5 Fisher v. Smith, Moore, 569, case Am. Dec. 357. 777. 226 CONSIDERATION IN DEEDS OF BARGAIN AND SALE. [§§ 265, 266. Wliere the only consideration expressed was that the grantee should support the grantor, the deed was held void ; for, it not being executed by the grantee, there was no binding agreement on his part, but be was given an option to furnish the support, or to let the deed become void. by withholding support.^ A deed made in pursuance of a sale under a decree of court need not express any consideration.^ 265. Following this doctrine -was the doctrine that any valuable consideration paid in fact is sufficient to constitute a valid conveyance by way of bargain and sale.-5 " It was not neces- sary in a deed of bargain and sale at common law to express a consideration ; but it was necessary that there should in fact be a consideration, and that the consideration should be a valuable as contradistinguished from a good one. Without a valuable con- sideration, the deed of bargain aiiJ sale would not raise a use ; and if there were none in fact, and none expressed in the deed, and no use was declared, there was at common law a resulting trust in favor of the grantor, and the operation of the deed would be defeated." * 266. As between the parties to a deed at the present day, no consideration, expressed or unexpressed, is necessary.^ This is the case in all States where there are statutes to the effect that all conveyances of land signed and sealed by the grantor, having good authority to convey, shall be valid to pass the same, without any other act or ceremony whatever. A deed of convey- 1 -Jnckson v. Florence, 16 .Johns. 47. * Peck v. Vandenberg, 30 Cal. 11, 25, 2 Porter v. Robinson, 3 A. K. Marsh, per Sawyer, J. 253, 13 Am. Dec. 153. ^ Traftou v. Hawcs, 102 Mass. 533, 541, 3 Wood V. Chapin, 13 N. Y. 509, 67 3 Am Rep. 494, per Wells, J. ; Beal v. Am. Dec. 62 ; Covwin v. Corwin, 6 N. Y. Warren, 2 Gray, 447 ; Laberee v. Carlton, 342, 57 Am. Dec. 453; Willis c Albert- 53 Me. 211; Green v. Thomas, 11 Me. son, 20 Abb. N. C 263 ; Jackson v. Pike, 318 ; Hatch v. Bates, 54 Me. 136 ; Ham- 9 Cow. 69; Winans r. Peebles, 31 Barb, mond v. Woodman, 41 Me. 177,56 Am. 371 ; Maccubbin >: Crni.iwell, 7 Gill & J. Dec. 219 ; Randall v. Ghent, 19 Ind. 271 ; 157; Cheney v. Watkins, 1 Har. & J. Thompson ?-. Thompson, 9 Ind. 323, 68 527, 2 Am. Dec. .530; Schmitt v. Giova- Am. Dec. 638: M'Neely v. Rucker, 6 nari, 43 Cal. 617 ; Merle v. Mathews, 26 Blackf. 391 ; Doe v. Hurd, 7 Blackf. 510; Cal. 455; Havens v. Dale, 18 Cal. 359; Rogers v. Ilillhouse, 3 Conn. 398 ; Hous- Perry v. Price, 1 Mo. 553 ; Springs v. ton v. Blackman, 66 Ala. 559, 41 Am. Hanks, 5 Ired. 30; Okison v. Patterson, 1 Rep. 756 ; -Tackson v. Cleveland, 15 Mich. W. & S. 395 ; Boardman v. Dean, 34 Pa. 94, 90 Am. Dec. 266. St. 252 ; Pennsylvania Salt Manuf. Co. v. Neel, 54 Pa. St. 9. 227 §§ -2117, -208.] CONSIDKHATION, ance tlu>ii"li it be wliolly voluntury, operates to pass the title, as between tlie parties, ;is effectually as if it had been matle for an aileiinntc v;ilii:il)K' consideration.^ 267. A deed of conveyance under seal imports a considera- tion, and no considiMation need in the first instance be pleaxU'd or proved.- A stranger to the land cainiot question the considera- tion of a deed executed under seal.'^ II. Consideration for Covenant to stand Seised. 268. A covenant to stand seised must be supported by a consideration of blood-relationship or marriage.* Such a con- sideration may, however, be shown, th(jugh the only consideration expressed in the deed is a valuable one.'^ A voluntary deed made to the donor's brothers and sisters, though expressing a nominal consideration, and though not to take effect in possession until his death, is good as a covenant to stand seised to their use.'' But affinity by marriage is not a consideration on which a cov- enant to stand seised can be sustained, and accordingly a covenant 1 Comstock I'. Son, 1.54 Mass. .389, 28 N. E. Rep. 296; Mather v. Corliss, 103 Mass. 568, 571 ; Rogers v. Hilllionse, 3 Conn. 398. Here the consideration ex- pressed was " for divers good causes and considerations." Washband v. Washband, 27 Conn. 424 ; Perry v. Price, 1 Mo. 553, 14 Ara. Dec. 316; Den v. Hanks, 5 Ired. 30; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Doe v. Hurd, 7 Blackf. 510. •i Trafton v. Hawes, 102 Mass. 533, 541, 3 Am. Rep. 494, per Wells, J. ; Boynton V. Rees, 8 Pick. 329, 332, 19 Am. Dec. 326 ; Marshall ;;. Fisk, 6 Mass. 24 ; Ruth V. Ford, 9 Kans. 17 ; Green v. Thomas, 11 Me. 318; Doe v. Hurd, 7 Blackf. 510; Brockway v. Harrin^'ton, 82 Iowa, 23, 47 N. W. Rep. 1013; Perry v. Price, 1 Mo. 553; Saunders v. Blythe, 112 Mo. 1,20 S. W. Rep. 319; Baker v. Westcott, 73 Tex. 129, 11 S. W. Rep. 157. 3 Jones on Mortgages, § 613; West Portland Homestead Asso. v. Lawnsdale, 19 Fell. Rep. 291. •* New York: Jackson v. Sebring, 16 Johns. 515, 8 Am. Dec. 357, per Kent, 228 Chancellor; Rogers v. Eagle F. Co. 9 Wend. 611 ; Jackson v. Cadwell, 1 Cow. 622 ; Jackson v. Delancy, 4 Cow. 427. Mas- sachusetts: Wallis V. Wallis, 4 Mass. 135, 3 Am. Dee. 210; Welsh v. Foster, 1 2 Mass. 93; Parker !'. Nichols, 7 Pick. Ill ; Gale V. Coburn, 18 Pick. 397; Miller v. Good- win, 8 Gray, 542. Maine : Gault v. Hall, 26 Me. 561 ; Mardeu v. Chase, 32 Me. 329 ; Emery v. Chase, 5 Me. 232. Mary- land : Cheney v. Watkins, 1 Har. & J. 527, 532, 2 Am. Dec. 530, per Chase, C. J. New Hampshire : French v. French, 3 N. H. 2.'U; Rollins v. Riley, 44 N. H. 9; Underwood v. Campbell, 14 N. H. 393; Bell V. Scammon, 15 N. H. 381,41 Am. Dec. 706. Ohio : Thompson v. Thompson, 17 Ohio St. 649. South Carolina : Single- ton V. Bremar, 4 McCord, 12, 17 Am. Dec. 699. = WaUis V. Wallis, 4 Mass. 135, 3 Am. Dec. 210 ; Parker v. Nichols, 7 Pick. Ill ; Gale V. Coburn, 18 Pick. 397 ; Brewer v. Hardy, 22 Pick. 376, 33 Am. Dec. 747 ; Miller v. Goodwin, 8 Gray, 542. 6 Wall V. Wall, 30 Miss. 91. CONSIDERATION FOR COVENANT TO STAND SEISED. [§ 269. to stand seised by a father to his daughter's husband is ineffec- tual.^ 259. An exceptional rule prevails in Massachusetts to the effect tliat a vahuible consideration is sufficient to support a cove- nant to stand seised. The requirement of a consideration of blood or marriage to support a covenant to stand seised is declared to be artificial, and wholly without reason for its existence in this country- ; and it is said there is no reason why such a deed should not rest upon the same consideration, or the same presumption of consideration, that will support a deed of bargain and sale. In- asmuch as in this country all deeds of land, whatever their form, are required to be recorded, there is no reason for the distinction between deeds of bargain and sale and deeds in the form of cov- enants to convey, so far as this distinction is founded upon the English Statute of Enrolments. " A deed of itself imports a consideration. The recital of a consideration is conclusive for the purpose of supporting the deed against the grantor and his heirs. A vokmtary conveyance or gift to a stranger is good against the grantor and his heirs. It is also good against a sub- sequent purchaser for value, in the absence of actual fraud.^ The reason for distinguishing between a deed of bargain and sale and a covenant to stand seised, on the ground of the nature of the consideration, does not exist here. Between the grantor and his heirs and the grantee, in a controversy respecting the title, there is no question open in relation to the nature or existence of the consideration, unless it be in conection with a charge of fraud in procuring the execution of the deed. It is the duty of the court to seek by construction to maintain rather than defeat the opera- tion of the deed. In case of a deed to take effect at the decease of the grantor, it is the duty of the court, in accordance wath the foregoing principles of construction, to give to the deed its in- tended operation, by construing it as a covenant to stand seised to tlie use of the grantee, according to the nature of the use granted." ^ 1 Corwin v. Corwin, 6 N. Y. 342, 57 an error to correct an error. The first Am. Dec. 45.T. error consi^tell in holdiiij,' that a future 2 Heal V. Warren, 2 Gray, 447. estatejn land could uut be created by a ■5 Trafton v. Hawes. 102 Mass. .5.33, 540, deed of hurpain and sale. Welsh v. Fos- 3 Am. Rep. 494, per Wells, J. Professor ter, 12 Ma-s. 93, 96 ; Parker v. Nichols, 7 Gray, in his Rule against I'erjietuiiie.s, I'ici<. Ill; Hunt v. Hunt, 14 Pick. 374, § 57, declares the Massachusetts rule to be 380 ; Rrewcr v. Hardy, 22 Pick. 376. The 229 §§ '210, 271.] CONSIDEKATION. III. What w a Valuable Consideration. 270. A valuable consideration is a money or property con- sideration, as distiiignislied from a, good consideration founded on natural atfcrtion. Deeds made merely upon a good considera- tion are considered as volunlarv, and may frequently be set aside in favor of the gr;intor\s creditors and purchasers from liim in i^'ood faith. 1 A valuable consideration may consist of anything which the parties to the deed esteem of value ;2 anything that is a benefit to the grantor or a damage to the grantee. It may con- sist of the surrender of a valuable I'ight by the grantee to the gi-antor, or to another at the grantor's request.-^ The surrender to the grantor of the promissory note of a third person constitutes a valuable consideration.'* 271. An agreement by the grantee to do something for the grantor is a valuable consideration, though as a matter of fact the grantee never performs the agreement. The agreement itself is a sufficient consideration.^ An agreement of the grantee to pay a debt for the grantor is a valuable consideration.*^ So is the signing of a note as surety for the grantor.^ So is the execution of a mortgage by the grantee upon the land granted, at the re- quest of the grantor, to secure a debt due by him to a third person.^ The release by a w^ife of her inchoate dower interest in his lands is a valid consideration for his agreement to convey lands to her, and for his deed made in fulfilment of such agreement.^ inconvenience of this rule was done away ^ Lake v. Gray, 35 Iowa, 459 ; Gray v. with by the other erroneous doctrine that Lake, 48 Iowa, 505 ; Mobile Sav. Bk. v. a covenant to stand seised may be sup- McDonnell, 89 Ala. 434, 8 So. Rep. 137; ported by a pecuniary consideration ; the Twomey v. Crowley, 137 Mass. 184. court holding that a deed made upon a '^ Buffum v. Green, 5 N. H. 71, 20 pecuniary consideration, when void as a Am. Dec. 562 ; Vanmeter v. Vanmeter, deed of bargain and sale because the es- 3 Gratt. 148 ; McWhortcr v. Wright, 5 tate was to commence i'n/H^in-o, might be Ga. 555; Carty y. Connolly, 91 Cal. 15, regarded as a covenant to stand seised. 27 Pac. Rep. 599 ; Gladwin v. Garrison, 1 Clark V. Troy, 20 Cal. 219 ; Rockhill 13 Cal. 330 ; Saunderson v. Broadwell, 82 V. Spraggs, 9 Ind. 30. Cal. 133, 23 Pac. Rep. 36. 2 Charleston, C.&C.R.R. Co. D. Leech, ' Grigsby w. Schwarz, 82 Cal. 278, 22 .33 S. C. 175, 11 S. E. Rep. 631. Pac. Rep. 1041 ; Willis v. Albertson, 20 3 Smith V. Wcstall, 76 Tex. 509, 13 Abb. N. C. 263. S. W. Rep. 540. s Doran v. McConlogue, 150 Pa. St. 98, 4 Swenson v. Searle (Tex. Civ. App.), 30 W. N. C. 296, 24 Atl. Rep. 357. 28 S. W. Rep. 143. '■* Brown v. Rawlings, 72 Ind. 505 ; 230 WHAT IS A VALUABLE CONSIDERATION. [§§ 272, 273. Where a deed was executed to a car-manufacturing company in consideration of a promise by such company to locate car works thereon, parol evidence is inadmissible to show, in an action to cancel the deed, that the shops were never built, when no ground for equitable relief is shown in the circumstances sur- rounding the execution of the deed. The promise to build the works upon the land was a valid consideration ; and though fail- ure to comply with such promise would be a good ground for rescinding an executory agreement to convcj^ it is no ground for attacking the validity of an executed conveyance.^ Services rendered, or to be rendered, to the grantor by the grantee are a valuable consideration,'-^ though there was in the beginning no contract to compensate for the services ; ^ and though the deed very imperfectly expresses the consideration, it will pass the title.^ If the grantee wholly fails to perform his agreement to render services, it has been held, contrary to the lule above stated, that the conveyance may be set aside at the instance of the grantor.^ In a conditional sale, the execution of the agreement to recon- vey is a sufficient consideration for the conveyance.^ 272. A deed to indemnify an indorser or guarantor, who became such at the request of the grantor, is founded upon a valuable consideration, and vests the property in the grantee, until the grantor relieves the grantee from the liability assumed by liimJ 273. A deed made in satisfaction of a debt due from the grantor to the grantee is based upon a valuable consideration.^ A conveyance in satisfaction of illegal claims paid by the grantee at the grantor's request — such, for instance, as claims void on account of usury — is founded upon a va\id and sufficient consideration.^ Goff V. Rogers, 71 lud. 459; Bullard v. ' United States v. Hooe, 3 Crancli, 73; Briggs, 7 Pick. 533, 19 Am. Dec. 292. Hendricks v. Robiuson, 2 Johns. Ch. 283; 1 Beaumont Car Works v. Beaumont Stevens v. Bell, 6 Mass. 339 ; Buffiun (;. Imp. Co. (Tex. Civ. App.) 23 S. W. Rep. Green, 5 N. H. 71, 20 Am. Dec. 562; 274. Griffith V. Frederick Co. Bank, 6 Gill & J. - Young V. Riiigo, 1 T. B. Mon. 30. 424; Wilson v. Russell, 13 Md. 494, 71 3 Doran v. McCoiilogue, 150 Pa. St. 98, Am. Dee. 645; Vanmeter v. Vanmetcr, 3 30 W. N. C. 296, 24 Atl. R(p. 357. GriUt. 148; Simpson v. Robert, 35 Ga. * Howe V. Warnaek, 4 Bibb, 234. 180. 5 Pironi v. Corrigan, 47 N. J. Eq. 135, 8 Steinriede v. Tcgge (Ky.), 14 S. W. 20 Atl. Rep. 218. Rep. 357. ''' Wil.son V. F'airchild, 45 :\Iiiiii. 203, 47 '•' Butler r. Myer, 17 Ind. 77. N. W. Rep. 642. " .)0-j^ §§ :274, 27.").] considkhaiion. 274. A covenant in a deed to support the grantor, or an- other, is a valuable consideration, and it is iinniatL'iial that the «Tantee does not e.\ecute it, for he is bound by tlie covenant by accepting the deed.^ lie takes tlie land subject to the support stipulated as a charge thereon. A parol contract to suppoit one during life is a sufficient consideration for a deed of real estate. Such a contract is not within the statute of frauds, for the person to be supported may die within the year.^ But a conveyance for the support of the grantor is not good as against the grantor's creditors, unless he has other property sufficient to satisfy his existing debts.^ A grantee, by accepting a deed of conveyance for a considera- tion to be performed, such for instance as to support the grantor,, becomes bound to perform his obligation, just as he would be had he become a party to an indenture in which he expressly cove- nanted to perform such obligation.'* 275. A consideration may be valuable though it is not ade- quate. Questions in regard to the adequacy of the consideration may arise between the grantor and tlie grantee, or between the latter and the grantor's creditors. To enable the grantor, or any one claiming under him, to set aside a conveyance on the o-round of the inadequacy of the consideration, he must make out a very strong case of imposition or undue influence;^ but in a suit by the grantor's creditors, a lesser degree of inadequacy may be evidence of a secret trust between the parties to the convey- ance. Great inadequacy of price may be prima facie evidence of the fraudulent character of the conveyance.^ 1 Eastman v. Batchelder, 36 N. H. 141, 154; Green u. Thomas, 11 Me. 318 ; Vail 72 Am. Dec. 295. Wisconsin: Scott y. y. McMillan, 17 Ohio St. 617. Scott (Wis.), 61 N.W. Rep. 286 ; Shontz ^ Woodward y. Wyman, 53 Vt. 645; V. Brown, 27 Pa. St. 123; Hender.'?on v. Stanley v. Bobbins, 36 Vt. 422; Bri^rys Hunton, 26 Gratt. 926; Spaldinj-: v. Hal- v. Beach, 18 Vt. 115; Crane v. Stiikles, lenbeck, .30 Barb. 292, distinguisliinfr Jack- 15 Vt. 252. son V. Florence, 16 Johns. 47. West Vir- •* Caraway v. Caraway, 7 Cold. (Tenu.) ginia: Keener v. Keener, 34 W. Va. 421, 245. 12 S. E. Rep. 729; McClure y. Cook (W. ^ Brockway v, Ilarrinjrton, 82 Iowa, Va.), 20 S. E. Rep. 612. 23, 47 N. W. Rep. 1013. Otherwise in California: Grimmer c 6 Kuykendall r. McDonald, 15 Mo. 416, Carlton, 93 Cal. 189, 28 Pac. Rep. 1043, 57 Am. Dec. 212; Friedman v. Hirsch, 18 27 Am. St. Rep. 171, on the ground that N Y. Supp. 85. In this ca.se, the proof such a contract cannot be specifically en- of iiriual fraud not beiny; clear and satis- forced, factory, the deed was allowed to stand as 2 Hutchinson v. Hutchinson, 46 Me. sicurity for the sum paid by the grantee. WHAT IS A VALUABLE CONSIDKRATION. [§§ 276, 277. Mere inadequacy of consideration, when there is no fraud, affords no ground for avoiding a deed. It is enough that there is an actual consideration which is legal and of some value. ^ 276. A consideration may be meritorious though not valu- able. A uioral duty to do- anything is a meritorious consideia- tion. It is a nullity in law, and is an imperfect consideration in equity, though recognized by it as effective within very narrow limits. '• While this species of consideiation does not render an agreement enforcible against the promisor himself, nor against any one in whose favor he has altered his original intention, yet if an intended gift based upon such meritorious consideration has been partially and imperfectly executed or carried into effect by the donor, and if his original intention remains unaltered at his death, then equity will, within certain narrow limits, enforce the promise thus imperfectly performed, as against a third person, claiming merely by operation of law, who has no equally meri- torious foundation for his claim. The equity, thus described as based upon a meritorious consideration, only extends to cases involving the duties either of charity, of paying creditors, or of maintaining a wife and children." ^ The benefits received in the way of religious instruction and consolation, by one who attends regularly upon the ministrations of a religious society, form a meritorious consideration for a con- veyance of land by such attendant to the society which will induce a court of equity to cure a defect in the conveyance. ^ 277. A good consideration is usually applied to a considera- tion that is not a valuable one, and imports a consideration founded on blood-relationship or natural affection. A deed for such a consideration is a voluntary one, while a deed for a valu- able consideration is termed compensatory. The term "good consideration " is sometimes loosely used to denote any considera- tion valid in law, whether valuable or meritorious;^ but techni- cally it should always denote a meritorious consideration. On this point see, also, Dunn v. Chambers, see Attorney-General v. Tancrcd, 1 Eden, 4 Barb. 37G ; Buyd v. Dunlap, 1 Johns. 10, 1 Anib. 351, and 1 Wm. B1.90; Innis Ch. 478 ; Washband v. Washband, 27 v. Saver, 7 Ilarc, 377, 3 Macn. & G. 606. Conu. 424. ■' Methodist E. Cliurch v. Town, 47 N. 1 Goodspced v. Fuller, 46 Mo. 141. J. Eq. 400, 20 Atl. Kep. 488. - 2 Pomeroy Eq. Jur. § 588. For cases * As in the statutes of 27 Eliz. ch. 4, rc- where equity has lent its aid to cure de- latinji; to fraudulent conveyances. Coj/is fects in conveyances to charitable uses, jj. iNIiddlcton, 2 Madd. 410; Doe i-. Bout- 233 §§ 278, 279.] CONSIDERATION. A good as distinguislied from a valuable consideration is not sufficient to support the covenants of a deed.^ A deed by a father for the benefit of his iUegitimate child is upon a good consideration which will su}iport the conveyance.^ 278. A deed in consideration of past or future illicit inter- course passes the legal title, and, the grantee being in posses- sion, neiilier the grantor nor liis heirs can recover in ejectment."^ But such a conveyance is not founded upon either a valuable or good consideration, and is, as against the grantor's creditors, a vol- untary conveyance.* A conveyance, however, not looking to past or future cohabitation as a consideration, but founded upon a legal and moral obligation to support his cliildren born of the grantee, may be held valid as against the gi'antor's creditors. It was so liehl in a case where the grantee had been deceived into a marriage with the grantor ^ when he already had a wife living and had had children by him ; and also in a case wliere a wo- man had been the grantor's mistress and had had children by him.^ In such cases there is either a legal or moral obligation upon the grantor to indemnify the woman for the support of his ohildi-en." 279. Love and affection for a blood relation is not a valu- able consideration.^ A deed for such a consideration is purely a voluntary one. Such a considei-ation is called meritorious ; but while it makes the conveyance good between the parties, it is void as against the grantor's creditors under the same circumstances that would render any voluntary conveyance void as against them. An executory covenant, such as a covenant by a grantee to pay an existing mortgage upon the property, contained in a deed by ledge, 2 Cowp. 705 ; Hodgson v. Butts, 3 * Potter v. Gracie, 38 Ala. 303, 29 Am. Cninch, 140; Roberts v. Coleman, 37 W. Rep. 748; Jackson v. Miner, 101 111. 5.50. Va. 143, 16 S. E. Rep. 482. s Fellows v. Emperor, 13 Barb. 92, 97. 1 Wilbur V. Warren, 104 N. Y. 192, 10 ^ "Wait v. D.iy, 4 Den. 439. Contra, N. E. Rep. 263. Contra, Hanson v. Buck- Potter v. Gracie, 58 Ala. 303, 29 Am. Rep. uer, 4 Dana, 251, 29 Am. Dec. 401. 748. - Marchioness of Annandale v. Harris, " Wait v. Day, 4 Den. 439. 2 P. Wms. 432; Jennings v. Brown, 9 ^ ]\l;ithews v. Feaver, 1 Cox's V.q. Cas. M. & W. 490 ; Conley v. Nailor, 118 U. S. 278 ; Hinde v. Longworth, 1 1 Wheat. 199 ; 127, 6 Sup. Ct. Rep. 1001 ; Gay v. Parpart, Borum v. King, 37 Ala. 606 ; Kinncbrew 100 U. S. 679, 1 Sup. Ct. Rep. 450 ; Hook v. Kinnebrew, 35 Ala. 628 ; Danville Snn V. Pratt, 78 N. Y. 371 ; Bunn v. W^intlirop, inary v. Mott, 136 111. 289, 28 N. E. Rep. 1 .John.s. Ch. .329. .54 ; Beith v. Beith, 76 Iowa, GOl, 41 N. W. '' Hill V. Freeman, 73 Ala. 200, 49 Am. Rep. 371 ; Burton v. Le Roy, 5 Sawyer, Rep. 48. 510, where the deed was to a son-in-law. 234 MARRIAGE IS A VALUABLE CONSIDERATION- [§§ 280, 281. a father to his daughter, not supported b}' any valuable or pecu- niary consideration, cannot be supported either in law or equity. ^ IV. Marriage is a Valuable Consideration. 280. Marriage is deemed in law a valuable consider ation.^ A conveyance for such a consideration stands upon a different foot- ing from a voUmtary conveyance. A man may convey a portion of his property to his intended wife, if this is no more than a suita- ble provision for her, and, in the absence of fraud on the part of the parties to the settlement, it will be upheld against existing as well as subsequent creditors.^ " In determining whether or not the settlement was made in good faith, the value of the property conveyed, the amount of the settler's debts, and the value of his remaining property as compared therewith, would of course be important considerations. A presumption of fraud, more or less conclusive, would arise in proportion as the projjerty conveyed was, or was not, in excess of a reasonable provision, and as the settler's remaining property was sufficient, or insufficient, for the payment of his debts." ^ The pi-esumption, until some evidence of fraud is shown, is that the conveyance is valid, and not a fraud upon the rights of any one.^ Marriage may be given in evidence as the consideration of a deed exjiressed to be for a money consideration only.^ 281. A settlement in contemplation of marriage will not be set aside except upon clear proof of fraud participated in by 1 Wilbur V. Warren, 104 N. Y. 192, 10 13 K. I. 91, 96, 43 Am. Rep. 132, per Mat- N. E. Rep. 263 ; Whitaker v. Whitaker, teson, J. 52 N. y. 368. 5 Frazer v. Western, 1 Barb. Ch. 220; - Nairn v. Provvse, 6 Ves. Jr. 752 ; Dygert v. Kemersclmider, 32 N. Y. 629 ; Smith V. Allen, 5 Allen, 454, 81 Am. Dec. Bonser v. Miller, 5 Oreg. 110. 758; Bonser v. Miller, 5 Oreg. 110; '^ Tolman w. Ward (Me.), 29 Atl. Rep. Cains V. Jones, 5 Yerg. 249; Betts v. 1081. A decision to the contrary is Betts Union Bank, 1 liar. & G. 175, 18 Am. !'. Union Bank, 1 liar. & G. 175. But it Dec. 283 ; Gibson v. Bennett, 79 Me. 302, was remarked by Walton; J., in Tolman 9 All. Rep. 727; Tolman v. Ward (Me.), v. Ward, supra, that "the decision does 29 Atl. Rup. 1081. not rest on the consideration of marriage ^ Camjiion v. Cotton, 17 Ves. Jr. 264, alone. It applies to all considerations in 271 ; National E.xchange Bank v. Wat- conflict with the one expressed in the son, 13 R.I. 91, 43 Am. Rep. 132; Smith deed. And there are other decisions in V. Allen, 5 Allen, 454, 81 Am. Dec. 758; which the doctrine is maintained that the Marshall v. Morris, 16 Ga. 368 ; Corwin expressed consideration in a deed cannot V. Corwin, 6 N. Y. 342, 57 Am. Doc. 453, be varied or contradicted by oral evidence, per Johnson, J. But in this State, and in most of the * National Exch nigo Uank r. Watson, States, the law is oiherwisc." 235 § 281.] CONSIDEKATION. both parties. The wife is a purchaser of the property settled upon her in anticipation of marriage, and she is entitled to hold it as against all persons claiuiin<;" under the grantor.^ Even if the trnintor made the ante-nui)tial settlement with the intent to defraud his creditors, it will be sustained, in absence of proof that the grantee participated in the fraud."-^ "I never knew an in- stance," said the Lord Chancellor in Barroio v. Barro'W^ " wliere a settlement in consideration of marriage liath been set asitle, and I will not make a precedent for it." There are more recent cases in which marriage settlements have been declared void as to creditors."* Where the grantee was not aware, at the time of the execution of a deed to her in consideration of her marriage to the grantor, of any intent on his part to defraud his creditors, the fact that she became aware of such fraudulent intent before the marriage took place is not sufficient to avoid the deed, as the considera- tion for the deed is the agreement to marry, and not its actual consummation.' Marriage is a consideration of the highest value, and a deed or 1 Ex parte McBurnie, 1 De G., M. & G. 440 ; Sterry v. Arden, 1 Johns. Ch. 261 ; Verplank v. Sterry, 12 Johns. 536, 7 Am. Dec. 348 ; Herring v. Wickham, 29 Gratt. 628, 26 Am. Rep. 405 ; Jones's App. 62 Pa. St. 324 ; Bunnel v. Witherow, 29 Ind. 128. In Magniac v. Thompson, 7 Pet. 348, Mr. Justice Story, delivering the opinion of the whole court, said : " Nothing can be clearer, both upon principle and au- thority, than the doctrine that, to make an ante-nuptial settlement void as a fraud upon creditors, it is necessary that both parties should concur in, or hnve cogni- zance of, the intended fraud. If the settler alone intend a fraud, and the other party have no notice of it, hut is innocent of it, she is not and cannot be affected by it." - Prewit V. Wilson, 103 U. S. 22 ; Mag- niac V. Thompson, 7 Pet. .348, 393 ; Frank's A|.poal, 59 Pa. St. 190 ; Wri-ht v. Wright, 5'J Barb. 505, affirmed 54 N. Y. 437 ; Bon- >er c. Miller, 5 Oreg. 110; Andrews v. Joiies 10 Ala. 400; Tolman v. WaM (Me.), 29 Atl. Rep. 1081; Prignon c. 236 Danssat, 4 Wash. St. 199, 29 Pac. Rep. 1046. 3 2 Dickens, 504, 506 (1774). To like effect Sir Samuel Romilly and Mr. Bell, counsel for defendants in Campiona fide purchaser for value.^ The surrender of any right or security at the time of taking a mortgage for a preexist- ing debt makes the mortgagee a purchaser for value.-^ 286. The rule that a preexisting debt does not constitute one a bona fide purchaser is by some courts never applied where the property is purchased in good faith from the real and exclusive owner, but only where the property is purchased from some per- son who is apparently the owner, but who is not in fact, or not in law or equity, the real owner.'* Under this rule a conveyance to a surety in consideration that he had a few days before become a surety for a person other than the grantor is a conveyance for a consideration that had passed before the execution of the deed, and does not constitute the grantee a bona fide purchaser.^ 287. As between the immediate parties, the payment of a preexisting debt due from one to the other is as valuable a con- sideration to support a contract as though the amount was then for t!ie first time advanced.^ And so a mortgage to secure an surrender of a precedent deht, in consid- ^ Alstin v. Cnudiff, 52 Tex. 453. Ttiis eration of a conveyance, makes the grantee was a case where the holder of an uure- a bona Jifle purchaser even as ag;ainst corded instrument soufjht, after a long prior equities; but that the weight of au- lapse of time, to prevail over a purchaser thority supports the doctrine that a mort- for the consideration of an antecedent in- gage to secure a preexisting debt does not debledness. The court say : "There was make the mortgagee a iona_yir/e purchaser no offer to refund this indebtedness, and for a valuable consideration. on evidence tliat, in respect to their col- ' Steiner v. McCall, 61 Ala. 406 ; Tur- lection, the creditors, from want of the ner v. McFee, 61 Ala. 468. bar of limitations, insolvency of the debt- 2 Cary I'. White, 52 N. Y. 1.^8; Koon ors, or other good cause, particularly after I). Tramel, 71 Iowa, 1.32, .32 N. W. Uep. so long a lapse of time, could be placed 243 ; Jones v. Robinson, 77 Ala. 499 ; Sul- in as good condition as before the execu- livan Sav. Inst. v. Young, 55 Iowa, 1.32, tion of the deeds. . . . Under these cir- 7 X. W. Rep. 480. See Jones on Mort- cumstances it woidd seem but reasonable gages, § 459. and equitable that, before she (the one re- '^ Lane ?;. Logue, 12 Lea, 681. b'ing upon the unrecorded instrument) * Ruth »'. Ford, 9 Kans. 17. should prevail, it should be shown that if 6 Willis V. Alborison, 20 Abb. N. C. the deed were set aside because the con- 263. sideration was a preexisting debt, Alstin 240 VOLUNTARY CONVEYANCES. [§§ 288, 289. antecedent debt is perfectly valid as between the parties, what- ever may be its effect as to purchasers or incumbrancers.^ VI. Voluntary Conveyances. 288. A voluntary conveyance is one wholly without a valua- ble consideration,- or for a valuable consideration which is merely A nominal one.^ A deed which expresses a mere nominal consideration, but is founded upon an agreement for a subsequent valuable considera- tion, such as an agreement to pay a debt of the gi-antor, whie-h is subsequently performed in good faith, is not a voluntary convey- ance, and will be upheld as against the grantor's heirs.^ A voluntary conveyance confers a title good against the grantor and his heirs, and as against subsequent creditors of the grantor and purchasers from him, provided tlie grantor made the con- veyance without intent to defraud.^ A mortgage may be made by way of a gift when the rights of creditors are not interfered with.*^ It is only as against the rights of existing creditors of the grantor that his voluntary conveyance is invalid.' 289. A voluntary conveyance is presumptively fraudulent as to existing creditors.^ Tiie want of a valuable consideration throws upon the grantee, in defence of his title, the burden of dis- |. roving any fraudulent intent in the grantor to defraud his cred- itors. If the conveyance was made with a fraudulent intent on che part of the grantor, it is void both as to prior and subsequent creditors, whether the grantee participated in the fraud or not.^ (the cmlitor) woul.l not be prejudiced in ^ Jones on Mortgages, 614. the colk-ction otherwise of this indebted- ' Jones v. Clifton, 101 U. S. 225. ness." This was ai.proved in Dunlap v. ^ Lloyd v. Fulton, 91 U. S. 479, 48.5; Green, 60 Fed. Kep. 242. Beecher v. Clark, 12 Blatchf. 256 ; Laugh- 1 Steiner v. McCall, 61 Ala. 406; Tur- ton v. Harden, 68 Me. 208, 213; Carter ner v. McFee, 61 Ala. 468. v. Grimshaw, 49 N. H. 100; Hitchcock 2 Seward v. Jackson, 8 Cow. 406, 430; v. Kiely, 41 Conn. 611 ; Mohawk Bank c. Washband v. Washband, 27 Conn. 424. Atwater, 2 Paige, 54 ; Houston v. Bhick- 3 Houston V. Blackman, 66 Ala. 559, 41 man, 66 Ala. 559, 41 Am. Kep. 756. Am. Rep. 756. ^ Beecher v. Clark, 12 Blaichf. 256; ■• Young I'. Young, 27 S. C. 201, 3 S. Hitchcock v. Kiely, 41 Conn. 611 ; Carter E. Rep. 202. "• Grimshaw, 49 N. H. 100; Coolidge v. '> Gale V. Gould, 40 Mich. 515 ; Keeler Melvin, 42 N. H. 510, 534; Mohawk Bank V. Ullrich, 32 Mich. 88 ; Page v. Kendrick, v. Atwater, 2 Paige, 54 ; Savage v. Mur- 10 Mich. 300; Stafford i-. Stafford, 41 phy, 34 N. Y. 508, 90 Am. Dec. 733; Tex. 111. VOL. I. 241 § 290.] CONSIDKUATION. ^ \\'luMt> [ho purpose of tin' gruntor is shown to liave been actu- ;illv finiuliilt lit as to creditors, it is sufficient to prove that the Ljranti'e takes without consideration, without proving otherwise his participation in the fraudulent intent." ^ 111 New York a conveyance is not necessarily or even presump- tively fraudulent because it is voluntary.'-^ The mere fact that the o-rantor was indebted at the time of the conveyance does not render a voluntary conveyance absolutely fraudulent and void in law. If there was no intention on the part of the grantor to delay or defraud his creditors, and he has, aside from the property conveyed, property sullieient to pay all his debts, though it afterwards hap- pens that he does not in fact pay his debts existing at the time of sucli conveyance, the voluntary conveyance will be sustained. 290. Generally subsequent creditors of the grantor cannot question a voluntary conveyance, or one made upon an inade- quate consideration.^ Subsequent creditors deal with the grantor and give him credit, relying only upon the property he has at the time of their transactions with him. It is only upon proof that the grantor disposed of his property with intent to defraud those to whom he might soon afterwards become indebted that his subsequent creditors can question his voluntary conveyance. But if the conveyance was made by the grantor with the intent to defraud his subsequent creditors, it is void, although the grantee did not participate in or know of such intent.'* In the absence of proof of such intent, subsequent creditors have no better right than subsequent purchasers to question the debtor's voluntary conveyance.'' Lassiter v. Davis, 64 N. C. 498 ; Foley v. J. ; Hatch v. Bates, 54 Me. 136 ; Pomeroy Bitter, 34 Md. 646. v. Bailey, 43 N. H. 118. 1 Clark V. Chamberlain, 13 Allen, 257, * Sexton v. Wheaton, 8 Wheat. 229 ; 260, per Hoar, J. Mattingly v. Nye, 8 Wall. 370; Panil r. - Van Wyc'k v. Seward, 6 Paige, 62; Murphree, 13 How. 92; Beecher u. Clark, Jackson v. Post, 15 Wend. 588; Phillips 12 Blatchf. 256; Laughton r. Harden, 68 r. Woostcr, 36 N. Y. 412; Fox v. Moyer, Me. 208; Savage v. Murphy, 34 N. Y 54 N. Y. 125 ; Dunlap v. Hawkins, 59 508, 8 Bosw. 75, 90 Am. Dec. 733. N. Y. 342; Ilolden v. Burnham, 63 N. ^ French y. Shotwell, 5 Johns. Ch. 555, Y. 74 ; Babcock v. Eckler, 24 N. Y. 623 ; 20 Johns. 668. Such creditors cannot Dygcrt V. Remerschnider, 32 N. Y. 629. avoid the conveyance even if the debtor It was so determined in New York assigns to them his supposed right of before the statute. Seward v. Jackson, avoidance. Prosser >;. Edmomis, 1 Y. & 8 Cow. 406. C. 481 ; Crocker v. Belangee, 6 Wis. 645, 3 Graham v. Railroad Co. 102 U. S. 148 ; 70 Am. Dec 489 ; Milwaukee & M. R. R. Shaw V. Tracy, 83 Mo. 224, 229, per Ray, Co. v. Milwaukee & W. R. R. Co. 20 Wis. 242 VOLUNTARY CONVEYANCES. [§§ 291, 292. 291. Fraudulent intent on the part of the grantor may be inferred -where he continues in possession tifter a vokintav}^ conveyance, aiul he pays existing debts b}^ contracting new debts. The fraud consists in a design to obtain credit by means of the possession and apparent ownership of the property conveyed. If the existing indebtedness is merely transferred, not paid, the fraud is as palpable as it would be if the debts contracted after ohe conveyance were owing to the same creditors who held them at the time of the conveyance.^ A purchaser from one who holds under a voluntary conveyance is not bound to inquire whether such conveyance was fraudulent, although he has notice that it was not founded upon a pecuniary consideration. He has a right to act upon the legal presumption that the voluntary conveyance was honestly made, unless some other fact is brought to his knowledge to raise a suspicion in his mind that the conveyance was intended to defraud some one.^ But if the grantee paid a valuable consideration, the conveyance is good notwithstanding the intent of the grantor to defraud, unless the grantee also participated in the fraudulent intent.^ 292. A conveyance is not voluntary -where a money con- sideration, ho-wever small, is actually paid."* Thus a convey- ance by a father to his daughter, in consideration of one dollar actually paid, and natural love and affection, is not a voluntary conveyance.'^ Inadequacy of consideration may be shown in evi- dence as affecting the question of fraud, but it does not render the conveyance a voluntai'y one.^ 174, 88 Am. Dec. 740. But they may ^ Ferguson's App. (Pa.) 11 Atl. Rep. convey the same property to another for 88.5 ; Scott v. Scott, 1 Mass. 527. In Hat- the purpose of his disputing the validity tcrsley v. Bissett (N. J. Eq.), 25 Atl. Rep. of the prior conveyance, and give him the 3.32, it is said that the presumption is that right to sue. Dickinson ^^ Burrell, L. R. an advancement was intended; but such 1 Eq. 3.37 ; McMahcm v. Allen, 35 N. Y. presumption may he overcome by parol 403; Graham v. Railroad Co. 102 U. S. testimony sliowing the intention to be to 148, 158, per Bradley, J. make a gift. And see Murrel v. Murrel, 1 Savage v. Murphy, 34 N. Y. 508, 8 2 Strob. Eq. 148. Bosw. 75, 90 Am. Dec. 7.33. " Washband v. Washband, 27 Conn. 2 Frazcr v. Western, 1 Barb. Cli. 220. 424; Brockvvay v. Harrington, 82 Iowa, 3 Prewit V. Wilson, 103 U. S. 22; Las- 23, 47 N. W. Rep. 1013; Rankin v. Wal- siter V. Davis, 64 N. C. 498; Devries v. lace (Ky.), 14 S. W. Rep. 79. Phillips, 63 N. C. .53 ; Brown v. Rawlings, See, contra, Kinnebrew v. Kinnebrew, 72 Ind. 505. 35 Ala. 628. * Washband v. Washband, 27 Conn. 424. 243 § 20;').] CONSIDERATION. 'J'o show that a ileed was volmitaiy and fraudulont, evidence is admissible that the consideration named in tlie deed was not ill fact i);rKU' or that the consideration paid was inadequate.''^ 293. A voluntary conveyance is good against subsequent purchasers from the grantor for a valuable consideration Tvith- out notice of such prior conveyance.-^ The English rule, how- ever, is that a voluntary conveyance is void as against subsequent bona fide purchasers for a valuable consideration, even with notice of such conveyance.'^ The English cases go upon the ground that such subsequent conveyance of itself shows tlie fraudulent intent in making the voluntary conve3ance. This presumption of fraud cannot be contradicted. The question arises upon the construc- tion of the statute of 27 Eliz. ch. 4, § 2, which proves that every conveyance, " for the intent of and purpose to defraud and de- ceive " such person or persons as shall afterwards purchase in fee simple the same lands, shall be deemed and taken as against such person or persons and all others claiming under them to be utterly void and of no effect. This statute is in affirmance of the com- nn)n law. Though this statute is in force in Massachusetts and other of the older States as a part of the common law, there was no settled construction of it at the time of the separation of the colonies from the mother country, nor indeed before the famous decision of Lord Ellenboiough in 1807,* and our courts were therefore free to make their own construction of the statute. 1 Kerr v. Birnie, 25 Ark. 225. (1812), said : "I have great difficulty to 2 Motiile Sav. Bank v. McDonnell, 89 persuade myself that the words of the Ala. 4.34,8 So. Rep. 1.37. statute warranted, or that the purpose of 3 Beal V. Warren, 2 Gray, 447 ; Trafton it required, such a construction. . . . But V. Hawes, 102 Mass. 533, 540. it is essential to the security of property * Doe V. Manning, 9 East, 59 (1807); that the rule should be adhered to when Doe V. Rusham, 17 Q. B. 723, per Lord .settled." See, also, expres.sions of regret Campbell, C. J.; Evelyn v. Templar, 2 as to the rule by Lord p:idon in Pulver- Bro. C. C. 148(1787). toft v. Pulvertoft, 18 Ves. 84; by Lord Some of the English judges have not Campbell in Doe v. Rusham, 17 Q. B. liked the English rule, and have supported 723 ; by Je.ssel, M. R., in Ex parte Hill- it only because it had become well settled, man, 10 Ch. D. 622. In this country the Thus Lord Thurlow, in Evelyn v. Tern- English rule was in some early cases sup- plar, 2 Bro. C. C. 148 (1787), said: " Al- posed to have been a settled rule before though it would have been as well at first the American Revolution, and to have been if the voluntary covenatit had not been adopted here as part of the common law. thought so little of, yet the rule was such, Sterry v. Arden, 1 Johns. Ch. 261, 12 and so many estates stand upon it, ihat it Johns. .536 ; Den v. Underwood, 4 Wash, cannot be shaken." And Sir William 129 ; Clapp v. Leatherbee, 18 Pick. 131. Grant, in Buckle v. Mitchell, 18 Ves. 100 244 VOLUNTARY CONVEYANCES. [§ 293. As late ;is 1777 Lord ALinsfield said : ^ " There is no part of the Act of Parliament wliicli affects voluntary settlements eo nomine^ unless they are fraudulent." The objections to the present Eng- lish rule are forcibly and ably stated by Mr. Justice Thomas in delivering the judgment of the Supreme Court of Massachusetts in Beal v. Warren^^ already cited. " The first is, that it conclu- sively determines as a question of law, what is a mixed question of law and fact. A man has a I'ight to give away his estate. Such gift is good as against him and his heirs or devisees. It is void only as against creditors, c)r, under that statute, as against subsequent purchasers for a valuable consideration. It is void against them» only when it was made with intent and purpose to deceive and defraud them. . . . Again : it not only makes the inference or presumption of fraud from the simple act of subsequent sale, but it makes that presumption retrospective, and con(;lusive of the character of a previous act, however long the interval of time between the two, or however changed the condition, relations, and motives of the actors. It saj^s, because the grantor has now sold for a valuable consideration, the intent and purpose to sell for a valuable consideration must have existed in his mind some fifteen or twenty 3'^ears ago, it may be when he made the voluntary gift. The statute draws no such conclusion. The common law, in whose light it is to be construed, draws no such conclusion. Such conclusion is not based upon any law of the human mind, or any experience of the modes of its operation. The most that can justly be said is, that the second conveyance has created a party capable of avoiding the first, if it was fraudulent ; and that by reflection it has some tendency to show the purpose and intent of the first, greater or less, as the transactions are near or distant in point of time, or are connected in fact by the other evidence in the case. Another objection to this view of the statute is, that it leaves uncertain the tenure of pi-operty. The owner of real estate has the legal right to make a voluntary gift of it ; and, if the gift be made in good faith, it will conclude liim and his heirs, and ought to conclude all other persons. The question whether it was made in good faith depends upon the situation of his affairs when it was made, and the motives and purposes which led to the act." M")oe V. IJontledso, Cowp. 705. For citeii in Beal r. Wsirren, 2 Gray, 447, 452, other cases supporting this view, see eases per Thomas, J. ^ 2 Gray, 447, 453. 245 i>§ -JiU, iJOo.] CONSIDERATION. 294. By the English law, moreover, a consideration of blood or marriage has always been necessary to sustain a voluntary conveyance. Where there is no siu-h relation, a vohintary coii- Ycyance is void, not only against creditors, but also against subse- (jiient pui-chaseis for value, even if they have notice of the volun- tary conveyance.^ While this rule as to a voluntary conveyance does not prevail in this country, a voluntary conveyance upon a good consideration will be sustained against creditors, if it does not (lej)rive tlu'ni of existing rights. A gift of land by a husband to his wife is sustained by some courts if it is only a reasonable provision for her, although he has not property remaining sufficient to pay his creditors.'-^ A conveyance to the use of the grantor's wife is supported by evidence that the grantor had received and used the separate property of the wife foi- liis own purposes, in the absence of any evidence of an intention to defraud creditors.'^ In equity a deed may be made directly from a husband to his wife;^ and it will be sustained if the consideration is valuable or meritorious, or, under some circumstances, as a voluntary gift without any consideration by way of a reasonable settlement.^ VII. Parol Evidence of the True Consideration. 295. Parol evidence is admissible to show the true consid- eration of a deed, provided the consideration offered to be shown is not inconsistent with that which is expressed, and does not alter the effect of the instrument.*^ Though the consideration 1 Trafton v. Hawes, 102 Mass. 5.33, 3 4.34, 8 So. Rep. 137, 18 Am. St. Rep. 137 ; Am. Rup. 494. Hubbard v. Allen, 59 Ala. 283, 297 ; Man- ^ Wood I'. Broadley, 76 Mo. 23; Hullo- ning v. Pippen, 86 Ala. 357, 5 So. Rep. cher V. Hollocher, 62 Mo. 267. 572. In this case it was held that parol ^ Hill V. West, 8 Ohio, 222, 31 Am. Dec. evidence is admissible to show that a deed 442; Hannan v. O.xley, 23 Wis. 519. expres.sed to be made for a money con- * Hannan v. Oxley, 23 Wis. 519 ; sideration was really made in considera- Pennsylvauia Salt Manuf. Co. v. Neel, .54 tion of the promise of the grantee to exe- Pa. St. 9. cute a will in favor of the grantor. In * Hunt V. Johnson, 44 N. Y. 27 ; Town- this State, however, a deed impeached by abend r. Townshend, 1 Abb. N. C. 81. creditors cannot be supported by evidence « Clifford t'. TurrcU, 1 Y. & C C. C. of a consideration different in kind from 138, per Knight-Bruce, V.-C, 9 Jur. 63.3, that expressed. Potter v. Cracie, 58 Ala per Lor 1 Lyndhur.st. Alabama: Kinne- 303, 29 Am. Rep. 748 ; Houston y. Black- lirew V. Kiiinebrew, 35 Ala. 628; Olimer tiiaii, C6 .Ma. 559, 562, 41 Am. Rep. 756 V. Boyer, 89 Ala. 273, 7 So. Rej). 003; Arkansas : Gulbreath y. Cook, .30 Ark. 417 MoMle Sav. Bank v. McDonnell, 89 Ala. California: Coles v. Soulsby, 21 Cal. 47; 246 PAROL EVIDENCE OF THE TRUE CONSIDERATION. [§ 295. expressed is money paid, it may be shown that the real considera- tion was goods or property valued at the sum named ; ^ or that the actual consideration included an agreement by the grantee to pay an existing incumbrance on the property ; ^ or that the conveyance Tarty v. Connolly, 91 Cal. 15, 27 Pac. Hep. 599; Rhine v. Ellen, 36 Cal. 362; Htndrick i'. Crowley, 31 Cal. 471; Peck V. Vandenberg, 30 Cal. 11. Connecticut: Belden i'. Seymour, 8 Conn. 304, 21 Am. Dec. 661 ; Meeker i-. Meeker, 16 Conn. 383. Florida : Sullivan v. Lear, 23 Fla. 463, 2 So. Kep. 846. Illinois : Hutbsch v. Scheel, 81 111. 281 ; Monis v. Tillson, 81 111. 607 ; Booth v. Hynes. 54 111. 363. Indiana : Welz v. Rhodius, 87 lud. 1 ; Mather v. Scoles, 35 Ind. 1 ; Rockhill v. Spraggs, 9 lud. 30, 68 Aui. Dec. 607; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638. Iowa : Harper v. Perry, 28 Iowa, 57 ; Lawton y. Buckingham, 15 Iowa, 22 ; Swafford v. Whipple, 3 Greene, 261, 54 Am. Dec. 498. Kentucky: Ran- kin V. Wallace (Ky.) 14 S. W. Rep. 79. Maine: Bassett v. Bassett, 55 Me. 127; Tyler v. Carlton, 17 Me. 175; Emery v. Chase, 5 Me. 232; Goodspecd f. Fuller, 46 Me. 141,71 Am. Dee. 572 ; Tolman v. Ward (Me.), 29 Atl. Rep. 1081 ; Nicker- son V. Saunders, 36 Me. 413. Massachu- setts : Miller v. Goodwin, 8 Gray, 542; Paiire r. Sherman, 6 Gray, 511 ; Preble r. BaMwin, 6 Cii-h. 549 ; Clapp v. Tirrell, 20 Pick. 247 ; Gale v. Coburu, 18 Pick. 397 ; Bullard v. Briggs, 7 Pick. 533 ; Wil- kinson V. Scott, 17 Mass. 249, 257 ; Drury V. Tremont Imp. Co. 13 Allen, 168; Cow- ard V. Waters, 98 Mass. 596 ; Twomey v. Crowley, 137 Mass. 184. Michigan : Stro- hauer v. Voltz, 42 Mich. 444, 4 N. W. Rep. 161 ; Blair r. Carpenter, 75 Mich. 167. Minnesota: Jordan v. White, 20 Minn. 91 ; Keith r. Brigirs, 32 Minn. 185, 20 N. W. Rep. 91. Mississippi: Davidson V. Ji.nes, 26 Miss. 56 ; Parker v. Foy, 43 Miss. 260. Missouri: Ilollocher v. Hol- locher, 62 Mo. 267 ; Altringer v. Cape- beart, 68 Mo. 441 ; Miller v. McCoy, 50 Mo. 214; Rabsuhl v. Lack, 35 Mo. 316; Bobb y. Bobb, 7 Mo. App. 501, 89 Mo. 411, 4 S. W. Rep. 511 ; Wood v. Broad- ley, 76 Mo. 23,33 ; Fontaine i-. Boatman's Sav. Inst. 57 Mo. 552. Nebraska : Fall v. Glover, 34 Neb. 522, 52 N. W. Rep. 168. New Hampshire : Morse v. Shattuck, 4 N. H. 229, 17 Am. Dec. 419. New Jersey : Morris Canal & Banking Co. v. Ryer^ou, 27 N. J. L. 457. New York : McCrea v. Purmort, 16 Wend. 460, 30 Am. Dec. 103, a leading case ; Frink v. Green, 5 Barb. 455 ; Meriam v. Harsen, 2 Barb. Ch. 232; Murray v. Smith, 1 Duer, 412; Bingham v. Weiderwax, 1 N. Y. 509 ; Truscott V. King, 6 N. Y. 147 ; McKiu- ster V. Babcock, 26 N. Y. 378 ; Halliday V. Hart, 30 N. Y. 474; Baker v. Union Mut. L. Ins. Co. 43 N. Y. 283 ; Arnot v. Erie Ry. Co. 67 N. Y. 315. North Caro- lina : Barbee v. Barbee, 108 N. C. 581, 13 S. E. Rep. 215 ; Michael v. Foil, 100 N. C. 178. Ohio: Vail v. McMillan, 17 Ohio St. 617; Steele v. Worthington, 2 Ohio, 182. Pennsylvania: Hartley v. M'An- ulty, 4 Yeate«, 95, 2 Am. Dec. 396. Rhode Island: Wood v. Moriarty, 15 R.I. 518, 9 Atl. Rep. 427 ; National Exchange Bank v. Watson, 13 R. I. 91. South Car- olina : Calvert v. Nickles, 26 S. C. 304, 2 S. E. Rep. 116. Vermont : Pierce v. Brew, 43 Vt. 292. Virginia : Harvey v. Alexan- der, 1 Rand. 219, 10 Am. Dec. 519. Wis- consin: Hannan v. Oxley, 23 Wis. 519; Ildrner v. Chicago, M. & St. P. Ry. Co. 38 Wis. 165; Kicklaud v. Mennsha Wooden Ware Co. 68 Wis. 34, 31 N. W. Rep. 471, 60 Am. Rep 831. 1 McCrea v. Purmort, 16 Wend. 460, 30 Am. Dec. 103; Miller v. McCoy, 50 Mo. 214. ~ Hays V. Peck, 107 Ind. 389, 8 N. E. Rep. 274; McDill v. Gunn, 43 Ind. 315; Pitman v. Conner, 27 Ind. 337 ; Allen v. Lee, 1 Ind. 58 ; Carver v. Louthain, 38 Ind. .530 ; Robl)iniufl v. Lister, 30 Ind. 142 ; Murray v. Smith, I Duer, 412. 247 ^ 20().] CONSIDKUATION. was iiKuU' as an advaneemeiil by a iatlicr to his son, and not upon a inoui'V consideration as expressed in the deed.^ Thouc^h the consideration expressed be h)ve and alTection, it ni.iv be sliown that tliere was a vahiable consideration also, such as a ti-ansfer of property by the grantee to the giantor,^ or an ao-reenient for maintenance ;'^ or a release of dower.* On the other hand, where a deed expresses only a valuable consideration, it may bt> shown that the grantee is a blood re- lation to the grantor, whereupon the law will presume a con- sideration of natural affection in addition to the consideration expressed.^ Though the consideration expressed be the past services of the grantee, a, woman, it may be shown that an additional considera- tion was a contemplated marriage between the parties.'^ 296. A recital of a consideration paid is not inconsistent with a consideration executory in character which is the real consideration,' or with such a consideration in addition to that recited in the deed.^ Though the expressed consideration of a deed to a railroad company is "■ benefit to be derived from the building of the road and one dollar paid," the grantor may show that the real consideration was the company's promise to build a depot on the land.^ In addition to the consideration named in a deed, it maybe shown that the real consideration consisted largely of the grantee's agreement to erect a sawmill on the land.i'^ A deed made for the expressed consideration of one dollar, when attacked on the ground that it is a voluntary gift, may be shown to have been made for the purpose of conveying the legal 1 Rockhill V. Spraggs, 9 Ind. 30, 68 Kenney y. Phillipy, 91 Intl. 511 ; Pomeroy Am. Dec. 607. v. Biiilcy, 43 N. H. 118. ■•^ Banks v. Brown, 2 Hill Ch. 558, 30 6 ]\]iller ,.. Goodwin, 8 Gray, 542. Am. Dec. 380 ; Ilannan v. Oxley, 23 Wis. ■? Tolman v. Ward (Me.), 29 Atl. Rep. 519. 1081 ; Snllivan v. Lear, 23 Fla. 463, 2 So. 3 Gale V. Williamson, 8 Mees. & W. Rep. 846 ; Rankin v. Wallace (Ky.), 14 405. S. W. Rep. 79. * Harvey v. Alexander, 1 Rand, 219, « Kickland v. Mcnasha Wooden Ware 10 Am Dec. 519. Co. 68 Wis 34, 31 N. W. Rep. 471. 5 Gale «. Coburn, 18 Pick. 397; Wallis » Loni.sville, St. L. & T. Ry. Co. v. i: Wallis, 4 Mass. 135, 3 Am. Dec. 210; Neafus, 93 Ky. 53, 18 S. W. Rep. 10.30. Parker v. Nichols, 7 Pick. Ill ; Meeker lo Fraley i\ Beutley, 1 Dak. 25, 46 N. V. Moeker, 16 Conn. 383; Rockhill v. W. Rep. 506. Spraggs, 9 Ind. 30, 68 Am. Dec. 607; 248 PAROL EVIDENCE OF THE TRUE CONSIDERATION. [^§ 297, 298. title to the real owner who had paid for the land, and had con- veyed it to the grantor to hold for him.^ it may be sliown that in addition to the consideration named in the deed, the grantor was to have the rents and profits of the 1,1 ml fxi- the current year of the sale.^ it may be shown that the consideration paid was not paid by til -grantee bnt by a third person, in whose favor a resulting ti u.-.t thereby arose, as where land is purchased with the money if ;i married woman, and the deed is taken in the name of her hu>band.'^ L97. Ordinarily a deed does not profess to set out specifi- cally the terms of the trade and the consideration which in- duced the making of it. An ordinary deed is regarded as an ins rument of conveyance by the grantor, and not an instrument binding the grantee and setting out the undertaking on his part which constitutes the consideration upon which the grantor has eX'M uted the deed.* Although no consideration is expressed, a valuable considera- ti'iii niay be proved in order to give effect to the deed.^ If only a nominal consideration be expressed, a valuable consideration may be proved.^ TIk^ consideration stated in the deed is presumed to be the actual consideration, until the contrary is shown.'' Though the monev consideration was actually paid in property, there is a pre- sumption that this is of the value expressed in the deed.^ 298. More or less than is expressed in a deed may be proved by parol evidence as the consideration, and even a different consideration if valuable may be proved.^ If the deed is assailed by the creditors of the grantor as fraudulent, the 1 Livingston v. Livingston, 29 Neb. 167, Jackson r. Fish, 10 Jolins. 456 ; Jackson 45 N. W. Rep. 233. "• I'ike, 9 Cow. 69 ; Willson v. Betts, 4 - Bourne i: P.onine, 92 K\'. 211. Denio, 201. 3 Connor!;. Foliansbce, 59 N. II. 124. ^ Chapman v. Emery, 1 Cowp. 278; ■» Pierce v. Brew, 43 Vr. 292. Leifehild's Case, L. R. 1 Eq. 231. 5 Peacock r. Monk, 1 Ves. Sen. 128; " Behlen r. Seymour, 8 Conn. 304, 21 Townend v. Toker, L. R. 1 Ch. 446. per Am. Dec. 661 ; Clements v. Landnim, 26 Tnrnor, L. J. ; Eerrars r. Cherry, 2 Vern. Oa. 401 ; Spear v. Ward, 20 Cal. 659; 383 ; Llawelly By. Co. v. London & N. W. Gaui^h v. Henderson, 2 Head, 628 ; Bay- Ry. Co. L. R. 8 Ch. 942; Davenport r. Hss r. Williams, 6 Coldw. 440. Ma'Jon, 15 Mass. 85; White r. Weeks, " ("lements i'. Landrum, 26 Ga. 401. 1 Pa. 486; Wood v. Beach, 7 Vt. 522; ^ Bullard f. Briggs, 7 Pick. 533, 19 Am. Stevens v. Griffith, 3 Vt. 448. New York : Dec. 292. 249 s^ -299.] CONSIDERATION. grantoe may support it by proving any valuable consitleiation, tliougli ilitVerent from that expressed.^ Thus the grantee may show that the actual eonsitleration was a contemplated marriage between the grantor and grantee instead of the sum of money expressed in the dee.l.'-^ The recital of a consideration is not evidence as auainst creditors of the jj^rantor who were such at the time of the execution of the deed ; but as against them the hurden is upon the grantee to prove a consideration such as will support the deed. The effect of a consideration expressed is merely to estop the grantee from alleging that the deed was executed without consideration. For every other purpose it is open to explanation, and may be varied by parol proof.'^ A deed from a mother to her married daughter, which expresses a valuable consideration in money as well as a consideration of love and affection, may be shown to have been made upon the latter consideration only, no money having been paid, where the purpose of such evidence is, not to defeat the deed, but to show that the deed was made by way of a gift, and that in consequence the laud conveyed became the separate property of the daughter, and not the couimon property of the daughter and her husband.* 299. There are, however, decisions to the effect that an expressed consideration cannot be varied by proof of a differ- ent or further consideration, unless the instrument itself indicates that the entire contract is not disclosed, and that there was a consideration other than that expressed, the nature of which is in- dicated. Thus, where one conveyed land to a railroad company in consideration of one dollar and the further consideration that the company would locate its road over the grantor's land, the grantor cannot show a parol undertaking on the part of the com- pany to establish a depot on the grantor's land, made contempora- neously with the deed and not expressed therein, because this would ingraft upon the deed conditions not expressed therein.^ 1 National Exchange Bank v. Watson, McCrea v. Purmort, 16 Wend. 460, 30 13 R. I. 91, 43 Am. Rep. 132; Miller i'. Am. Rep. 103; Greenvault v. Davis, 4 Goodwill, 8 Gray, 542; Tolman v. Ward Hill, 643; Coles v. Soulsby, 21 Cal. 47; (Me.), 29 Ati. Rep. 1081. Contra, Belts Hollocher v. Hollocher, 62 Mo. 267. V. Union Bank, 1 Ilar. & G. 17.t, on the * Peck v. Vandenberg, 30 Cal. 11. In ground that the expressed consideration this case the Louisiana and Texas de- cannoi be varied by parol. ci.'-ions bearing upon the question are con- - Houston V. Blackman, 66 Ala. .559, sidered at length. 41 Am. Rep. 756. 5 K^st Line, &c. R. Co. v. Garrett, 52 8 Stackpole v. RoVjbins, 47 Barli. 212 ; Tex. 133. 250 PAROL EVIDENCE OF THE TRUE CONSIDERATION. [§§ 300, 301. But where one conveyed land for a money consideration to a railroad company, and another insti'uuient, executed by the grantor to the railroad compauy at the same time, recited that he would do certain acts in consideration of the purchase of the land by the company for the location of a depot thereon, it was held that the instruments did not evidence the entire contract, and that the grantor could show by parol that the consideration of the deed was that the company should locate a depot on the land conveyed.^ 300. If there is a consideration in addition to a valuable consideration expressed, it is not necessary to prove such other consideration. A deed which expresses a valuable consid- eration, though this be merely a nominal one, need not, as against the grantor and those claiming under him, or as against a stranger, be supported by showing what other reason, in addition to the will of the grantor, led to its execution. Thus where a deed made in consideration of one dollar also recited it was exe- cuted under and by virtue of the statute concerning voluntary assignments made pursuant to the application of an insolvent and liis creditors, and in pursuance of an order made by a county judge, it was held that the deed might be given in evidence with- out proving the insolvency of the grantor.^ And so, if a deed purporting to be made in pursuance of a decree of court also re- cites a valuable consideration, the latter consideration is suffi- cient to support the deed without proving the existence of the decree.^ 301. The only eflfect of the consideration clause in a deed is to estop the grantor from alleging that it was executed without consideration, and to prevent a resulting trust in the grantor. For every other purpose the consideration may be va- ried or explained by parol proof.* As between the parties, " one dollar viewed as a consideration is as much a valuable consider- ation as a million dollars."^ A valuable consideration is essential at common law to raise a 1 Gulf, &c. Ry. Co. I'. Jones, 82 Tex. Purmort, 16 Wend. 460 ; Gordon v. Gor- 156, 17 S. W. Rep. 534. don, 1 Met. (Ky.) 285; Belden v. Sey- 2 Rockwell I!. Brown, 54 N. Y. 210. mour, 8 Conn. 304, 21 Am. Dec. 661; 3 Toncra v. Henderson, .3 Litt. 235, Meeker v. Meeker, 16 Conn. 383 ; Morrall * Goodspeed r. Fuller, 46 Me. 141, per v. Waterson, 7 Kans. 199. Appleion, J. ; Tolman v. Ward (Me.), 29 ^ Harvey v. Alexander, 1 Rand. 219, 10 Atl. Rep. lOSl.per Walton, J. ; McCrea v. Am. Dec. 519, per Cabell, J. 251 § i^O-l.] CONSIDKKATION. use. If tlu'ic is lu) considevjitiou expressed, ;iiul none in fact, and no use is declareil, a trust results in favor of the grantor and the operatii)n of tlie deed is defeated. " If, then, the grantor of a deed of bargain and sale, which expressed a money consideration, slmuKl be permitted to prove by parol testimony that no money was in fact paid, he would be permitted to show, in opposition to the deed itself, that he had made no conveyance of a beneficial in- terest at all, and thereby prevent any beneficial estate from pass- ing from him by the deed. This the policy of the law would not permit him to do, and he was held estopped by his deed from showing the fact for the purpose of preventing his deed from operating to pass an estate." ^ 302. The consideration stated in the deed cannot be dis- proved for the purpose of defeating the conveyance, but for all other purposes it is subject to be modified or varied by parol proof.2 For the purpose of destroying the effective operation of a deed, the grantor's administrator is estopped, just as the grantor him- self would be, from denying that there was a consideration for such deed.^ The grantor is not allowed to impeach his conveyance by showing that the consideration was an illegal one, as that it was made in pursuance of a lottery scheme in which he participated. He is not allowed to defeat his deed by showing his own unlawful act.4 1 Peck V. Vandenberg, 30 Cal. 11, 25, per Sawyer, J. •i McCalla v. Bane, 45 Fed. Rep. 828. Alabama: Vincent v. Walker, 93 Ala. 105, 9 So. Rep. 382 ; Ohmer v. Boyer, 89 Ala. 273, 7 So. Rej). 663. California : Ir- vine V. McKeon, 23 Cal. 472. Connecti- cut: Belden v. Seymour, 8 Conn. 304, 21 Am. Dec. 661. Illinois: Kimball r. Walker, .30 111. 482 ; Richardson r. Clow, 8 Bradw. 91. Indiana: Bever v. North, 107 Ind. 544, 8 N, E. Rep. 576. Maine: Hammond v. Woodman, 41 IMe. 177, 66 Am. Dec. 219; Abbott r. Maish^ill, 48 Me. 44. Massachusetts: Wilkin.son v. Scott, 17 Mas.s. 249, 257. Missouri: Bobb V. Bobb, 89 Mo. 411, 4 S. W. Rep. 511 ; 252 Ilonilcrson r. Henderson, 13 Mo. 151. New Hampshire : Morse v. Shattuck, 4 N. H. 229, 17 Am. Dec. 419; Connor v. Follansbee, 59 N. H. 124 ; Horn v. Tliomp- son, 31 N. H. 562; Farrington v. Barr, 36 N. H. 86; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236. Ohio : Vail v. Mc- Millan, 17 Ohio St. 617. Rhode Island: National Exchange Bank v. Watson, 13 R. I. 91, 43 Am. Rep. 132. Wisconsin: Hannan v. Oxley, 23 Wis. 519. 3 Campbell v. Carruth (Fla.), 13 So. Rep. 432. * Allebach v. Hunsicker, 132 Pa. St. 349. 19 Atl. Rep. 139; Winton v. Free- man, 102 Pa. St. 366. RECITAL OF PAYMENT OF THE CONSIDERATION. [§ 303. VIII. Recital of Payment of the Consideration. 303. The acknowledgment of consideration contained in a deed is only presumptive evidence of payment, and does not estop the grantor from maintaining an action against the grantee for the consideration remaining unpaid. It \s prima facie evidence of a valuable considei'ation paid and of the amount paid.^ 1 Mills V. Dow, 13.3 U. S. 423, 431, 10 Sup. Ct. Rep. 413, per Blatcliford, J.; Taggart v. Stanberry, 2 ^IcLean, 543. Alabama : Hubbard v. Allen, 59 Ala. 283. California: Authony v. Chapniau, 65 Gal. 73, 2 Pac. Rep. 889 ; Irvine v. McKeon, 23 Cal. 472 ; Rhine v. Ellen, 36 Cal. 362. Connecticut: Beldeu v. Seymour, 8 Conn. 304,21 Am. Dec. 661 ; Sparrow v. Smith, 5 Conn. 113; Meeker v. Meeker, 16 Conn. 383 ; Collins r. Tillou, 26 Conn. 368, 68 Am. Dec. 398. Delaware : Callaway v. Hearn, 1 Houst. 607. Georgia : Bonner V. Metcalf, 58 Ga. 236. Illinois: Rich- ardson V. Clow, 8 Bradw. 91 ; Ayers v. McConnel, 15 111. 230; Kimball v. Walker, 30 111. 482 ; Morris i;. Tillson, 81 111. 607. Indiana: McCouuell v. Citizens' State Bank, 130 Ind. 127, 27 N. E. Rep. 616. Kentucky: Gully ;•. Grubbs, 1 J. J. Marsh. 387, 3S9 ; Hutchison v. Sinclair, 7 Hon. 291 ; Bryant v. Hunter, 6 Bush, 75 ; Engleman v. Craig, 2 Bush, 424 ; Gordon y. Gordon, 1 Met. 285. Maine: Barter v. Greenleaf, 65 Me. 405 ; Bassett V. Bassett, 55 Me. 127 ; Long v. Wood- man, 65 Me. 56, overruling Steele v. Ad- ams, 1 Me. 1 ; Goodsi)eed v. Fuller, 46 Me. 141, 71 Am. Dec. 572; Dearborn v. Parks, 5 Me. 81, 17 Am. Dec. 206 ; Schil- lingcr V. McCann, 6 Me. 364 ; Burbauk v. Gould, 15 Me. 118; Nickerson r. Snun- der.s, 36 Me. 413. Maryland: Wolfe v. Hauver, 1 Gill, 84, overruling earlier cases in that State ; Morgan v. Bitzen- berger, 3 Gill, 350. Massachusetts: Paige V. Sherman, 6 (Jray, 511 ; Miller v. Gnod- win, 8 Gray, 542; Drury v. Trcindnt Im- provement Co. 13 Allen, 168; Wilkinson r. Scott, 17 Mass. 249 ; Clapp v. Tirreil, 20 Piek. 247 ; Carr v. Drolrv, 119 Mass. 294. Minnesota: Kumler i-. Ferguson, 7 Minn. 442. Mississippi : Parker v. Foy, 43 Miss. 260, 55 Am. Kep. 484. Missouri : Hogel V. Lindell, 10 Mo. 483 ; Henderson V. Henderson, 13 Mo. 151 ; HoUocher v. Hollocher, 62 Mo. 267 ; Fontaine v. Boat- man's Sav. Inst. 57 Mo. 552. Nebraska : Patrick v. Leach, 2 Fed. Rep. 120. New Hampshire : Morse v. Shattuck, 4 N. H. 229, 17 Am. Dec. 419; Pritchard v. Brown, 4 N. H. 397, 17 Am. Dec. 431 ; Kimball v. Fenner. 12 N. H. 248 ; Nut- ting V. Herbert, 37 N. H. 346. New York : Shephard v. Little, 14 Johns. 210 ; Bowen V. Bell, 20 .Johns. 338, 11 Am. Dec. 286; M'Crea v. Purmort, 16 Wend. 460, 30 Am. Dec. 103 ; Grout v. Townsend, 2 Hill, 554, 2 Denio, 336 ; Barnuni v. Child,<, 1 Sandf. 58 ; Sanford v. Sanford, 61 Barb. 293; Witbeck v. Waine, 16 N. Y. 532 ; Diefendorf ?•. Diefendorf, 8 N. Y. Supp. 617; Murdock v. Gilchrist, 52 N. Y. 242 ; Reubens v. Joel, 13 N. Y. t88. North Carolina : Barbee v. Barbee, 108 N. C. 581, 13 S. E. Rep. 215 ; Shaw V. Williams, 100 N. C. 272; Medley v. Mask, 4 Ired. Eq. 339. Con/ra, Brocket v. - oscuc, 1 Hawks, 64 ; Mendenhall v. Par- ish, 8 .Jones L. 105, 78 Am. Dec. 269. Pennsylvania: Hamilton v. McGuire, 3 S. & U. 355; Weigley v. Weir, 7 S. & R. 309 ; Byers j;. Mullen, 9 Watts, 266 ; Watson V. Blaine, 12 S. & R. 131, 14 Am. Dec. 669; Diitton v. Tilden, 13 Pa, St. 46 ; Cox V. Henry, 32 Pa. St. 18 ; Batdorf V. Albert, 59 Pa. St. 61. Tennessee : Bay- lies V. Williams, Coldw. 440. Vermont : Beach v. Packard, 10 Vt. 96, 33 Am. Dec. 185; Lazell v. Lazell, 12 Vt. 443, 30 Am. Dec. 352. Virginia ; Harvey r. Alexan- der, 1 Rand. 219, 10 Am. Dec. 519; Du- 2;j3 §§ 304, 305.] CONSIDKRATION. The statement of the consideration in a deed is in hirge part for the purpose of giving full effect to the instrument, and not to disclose in full the contract between the parties.^ A recital of the payment of a particular consideiation does not exclude proof of other and consistent consideration.^ This rule does not apply when the recitals as to the considera- tion are ambiguous, as where the amount was stated quite differ- ently in different places in the deed.^ 304. A sale of land is a good consideration for an oral promise to pay the price of it, and such price may be recov- ered after the conveyance by an action of assumpsit.* If, how- ever, the promise is not to pay money, but to convey real estate in exchange, such promise is void by the statute of frauds.^ If one party to such agreement refuses to fulfil his agreement to convey after he has received the deed of the other party, the latter may recover upon the implied promise of the former to pay the price for the land when this has been estimated by the parties at a fixed sum ; but the cause of action is not properly described by a count for money had and received, but by a count for the price or value of the land sold and conveyed. The action is not for money agreed to be paid, but for the price or value of the land.^ In the absence of fraud, when the grantor is content with a quitclaim deed, the rule caveat emptor applies, and he must pay the consideration for the deed whether he receives any title or not." 305. It may be shown that the grantee, at the time of the sale, agreed to pay a sum additional to that expressed in the deed, and the agreement may be enforced although it was parol val V. Bibb, 4 Heu. & M. 113,4 Am. Dec. v. Boll, 20 Johns. 338, 11 Am. Dec. 286; .506; Wilson v- Shelton, 9 Leigh, 342. Whitbeck v. Whitbeck, 9 Cow. 266, 18 Wisconsin: Kickhmd ?;. Menasha Wooden Am, Dec. 503; Basford v. Pearson, 9 Ware Co. 68 Wis. 34,31 N. W. Rep. 471, Allen, 387, 85 Am. ])ec. 764. 831, 60 Am. Rep. 831. " Griswold v. Messenger, 6 Pick. 516. 1 Collins V. Tilloii, 26 Conn. 368, 68 6 Basford v. Pearson, 9 Allen, 387, 85 Am. Dec. 398 ; Clarke v. Tappin, 32 Conn. Am. Dec. 764. 56,69. 7 Hulett v. Hamilton (Minn.), 61 N. 2 Engleman v. Craig, 2 Bush, 424; Gor- W. Rep. 672 ; Washington L. Ins. Co. v. don V. Gordon, 1 Met. (Ky.) 285. Marshall (Minn.), 57 N. W. Rep. 658; 3 Hall V. Loveman (Ala.), 3 So. Rep. Mitchell v. Chisholm (Minn.), 58 N. W. 767. Rep. 873. * Nelson v. Swan, 13 .Johns. 483 ; Bowen 254 RKCITAL OF PAYMENT OF THE CONSIDERATION. [§§ 306, 307. merely.^ It may be shown by such evidence that the grantee agreed to assume and pay a mortgage upon the land as a part ot" the consideration for the conveyance stated in the deed.- If in an exchange of lands it be agreed that the taxes upon the lands shall be offset and shall be paid by the grantors, such pay- ment of the taxes becomes a part of the consideration of the conveyance. Parol proof of such agreement is admissible, and a suit may be maintained for money paid by one of the grantees for the amount paid by him in removing the incumbrance of the taxes.'^ 306. The actual payment of the nominal consideration ex- pressed in a deed is not essential to its validity. It is suffi- cient if it is expressed to have been paid. The admission of its payment is generally onU^ a formality. This admission is not essential to the conveyance. It is immaterial whether it was ac- tually paid or not, even if the ackuDwledgment of the payment be inserted for the purpose of attesting the fact. Such acknow- ledgment is no better evidence than a sealed receipt on a separate paper would be.* 307. As between the parties, the ackno-wledgment of pay- ment, like any other receipt, changes the burden of proof, and requires the grantor, not only to prove the sale of the land, but to prove that it remains unpaid for.-^ Such acknowledgment is 1 Nickersoii v. Saunders, 36 Me. 413; * Meriam v. Harsen, 2 Barb. Ch. 232; Tyler v. Carlton, 7 Me. 175. Winans v. Peebles, 31 Barb. 371; M'Crea 2 Jones on Mortgages, § 750; Burnham v. Purmort, 16 Wend. 460, 474, 30 Am. V. Dorr, 72 Me. 198; Tuttle v. Armstead, Dec. 103. "A release cannot be coiitra- 53 Conn. 175, 22 Atl. Rep. 677 ; Bensit'ck dieted or explained by parol, because it V. Cook, 110 Mo. 173, 19 S. W. Rep. 642; extinguishes a preexisting right; but no Lamb v. Tucker, 42 Iowa, 118; Bolles v. receipt can have the effect of destroying. Beach, 22 N. J. L. 680, 53 Am. Dec. 263 ; per se, any subsisting right ; it is only evi- Wilson V.King, 23 N.J. Eq. 150; Wright dence of a fact. The payment of the V. Briggs, 99 Ind. 563 ; Buckley's App. money discharges or extinguishes the 48 Pa. St. 491, 88 Am. Dec. 468; Mer- debt. A receipt for the payment does not riman v. Moore, 90 Pa. St. 78 ; I'utney v. pay the debt : it is only evidence that ic Farnham, 27 Wis. 187 ; Society of Friends has been paid, ^ot so of a written re- V. Haines, 47 Ohio St. 423, 25 N. E. Rep. lease : it is not only evidence of the ex- 119; Groce v. -Jenkins, 28 S. C. 172, 5 S. tin'.'ui.-jhment, but is the extinguishment E. Rep. 352. Contra, Lewis v. Day. 53 itself." Per Cowan, J. Iowa, 577, 5 N. W. Rep. 753. & Mills v. Dow, 133 U. S. 423, 431, 10 ■"' Hobinius v. Lister, 30 Ind. 142, 95 Sup. Ct. Rep. 413, per Blatchford, J.; Am. Dec. 674 ; Brackett y. Evans, 1 Cu>li. Lawrence v. McCalmont, 2 How. 426; 79, 82; Preble v. Baldwin, 6 Cusli. .549; Beach v. Packard, 10 Vt. 96, 33 Am. Doc. Carr v. Dooley, 119 Mass. 294. 185; Jackson v. McChesney, 7 Cow. 360, 255 §§ 308, 309.] coNsinF.KAiioN. alsi) prima facie evidence as against persons who have subse- (lUfiillv dt'iived title from the grantor. But as against a sti-ani^or llie acknowledgint'nt of payment is no evidence whatever; it is t.n\\y iin ex parte deehiration, not under oath. ^ Wliere a deed is impeached on the ground that it was made to defraud crciHtors, the acknowh'dgment of the consideration is the hnvest species of prima facie evidence, inasmuch as the same motives which would uidnce the ])arties to execute a frauchdent conveyance would in- duce them to insert, in the strongest terms, an acknowledgment of the receipt of the consideration.^ The recital of payment of the consideration in a deed is not evidence as against third persons.^ 308. The presumption is that the person to whom a deed is made paid his own money for it. Wliere a deed is made to a married woman which expresses on its face that the consider- ation was paid by her, there is a presumption that the considera- tion was her own raoney\* But where the consideration is called in question, and evidence is given from which the jury may draw the conclusion that the consideration money paid was not that of the grantee, but of some other person, whose laud it is alleged by the party disputing the fact of payment by the grantee to be, the duty is cast upon such grantee, or pei'son asserting the pay- ment by the grantee, to prove the fact to the satisfaction of the jury ; otherwise the presumption is to be taken to be overthr(}wn.5 309. But evidence that the consideration recited was not in fact paid cannot be used to avoid the deed, or to affect its legal import as between the parties. The grantor is estopped, by a recital of a consideration paid, to claim a resulting trust in his favor, or to deny that the deed was executed for the uses expressed in it.'^ 17 Am. Dec. .521 ; Boiling v. Munchus, Redfield, &c. Co. v. Dysart, 62 Pa. St. 62; 65 Ala. .558 ; Grimball v. Mastin, 77 Ala. Pennsylvania Salt Manuf. Co. v. Neel, 54 553. Pa. St. 9. 1 Lloyd V. Lynch, 28 Pa. St. 419, 70 * StalU\ Fulton, 30 N. J L. 430 ; Jones Am. Dec. 137; Hubbard v. Allen, 59 v. Cannon, 8 Houst. 1, 31 Atl. Rep. 521. Ala. 283 ; Galland v. Jackmau, 20 Cal. 79, * Jones v. Cannon, supra. 85 Am. Dec. 172. « AVilkin.son v. Scott, 17 Mass. 249; 2 Clapp V. Tirrell, 20 Pick. 247, per Bassett y. Bas^ett, 55 .Me. 127; Belden y. Shaw, C. J. Seymour, 8 Conn. 304, 21 Am. Dec. 661 ; 3 Bolton V. Johns, 5 Pa. St. 145, 47 Sparrow c. Smith, 5 Conn. 113; Kimball Am. Dec. 404; Search's Appeal, 13 Pa. y. Walker, 30 111. 4S2 ; Pennsylvania Salt St. 108 ; Lloyd v. Lynch, 28 Pa. St. 419 ; Manuf. Co. r. Ned, 54 Pa. St. 9 ; Graves v. 256 RECITAL OF PAYMENT OF THE CONSIDERATION. [§ 310. This rule was held not to apply as against a married woman seek- ing relief from a conveyance of her statutory estate. Her recital of a consideration did not estop her, under the former statutes of Alabama, from showing that no consideration was in fact paid. Only such a deed as the statute authorized her to execute could raise an estoppel against her.^ The statute only authorized her to sell her separate estate, and not to give it away. 310. As against creditors of the grantor, his deed is re- garded as voluntary untiLthe payment of a valuable considera- tion is shown. Where there is proof, however slight, of fraud in a sale, tlie burden of proving payment of the consideration is on the giantee. The acknowledgment of the receipt of the con- sideration, wbicli is in the first instance priina facie evidence of its payment, is rebutted by the evidence of fiaud, and the burden of proof is no longer upon the party attacking the deed, but upon the party claiming under it.^ The, prima facie evidence of the payment of a consideration arising from the admission of it in the deed is sufficiently rebutted by showing that the party claiming the invalidity of the conveyance was a creditor of the grantor when the deed was made. The acknowledgment of a con- sideration received is not evidence of that fact against an existing creditor, and a deed is presumed to be fraudulent against such creditors until proof of an actual consideration paid is given.^ The proof of the execution of the deed, when this acknowledges Graves, 29 N. H. 129 ; ]N[oore v. Shattuck, Rep. 983 ; Jackson v. McChesney, 7 Cow. 4 N. H. 229 ; Farrinjrton t-. Barr, 36 N. H. 360, 17 Am. Dec. 521. 86 ; Heuiier.son I'. Henderson, 13 Mo. 151 ; 3 Prescott v. Hayes, 43 N. H. 593; Hollocher t'. Hollocher, 62 Mo. 267; Me- Kimball v. Fenner, 12 N. H. 248; Bel- Connell v. Brayner, 63 Mo. 461 ; Bobb v. knap v. Wendell, 21 N. H. 175 ; Ferguson Bobb, 7 Mo. App. 501, 89 Mo. 411,48. v. Clifford, 37 N. H. 86 ; Mobile Sav. Bank \V. Rep 511 ; Vincent v. Walker, 93 Ala. v. McDonnell, 89 Ala. 434; Roswald v. 165, 9 So. Rep. 382 ; Mobile Sav. Bank v. Hobbie, 85 Ala. 73, 4 So. Rep. 177 ; Mil- McDonnell, 89 Ala. 434, 8 So. Rep. 137; burn v. Phillips (lud.), 34 N. E. Rep. Jkacb V. Packard, 10 Vt. 96, 33 Am. Dec. 983 ; Wells v. Watson (Ala.), 14 So. Rep. 185 ; Grout v. Townsend, 2 Hill, 554, 2 361 ; Hubbard v. Allen, 59 Ala. 283 ; Tut- Denio, 336 ; Meriani v. Ilassen, 2 Barb, wiler f. Munford, 68 Ala. 124; Ellis v. Ch. 232 ; Bank of U. S. v. Housman, 6 Allen, 80 Ala. 515, 2 So. Rep, 676; Lips- Paige, 526. comb V. McClellan, 72 Ala. 151 ; Calhoun • Code 1876, §§ 2707, 2709 ; Vincent v. v. Ilannan, 87 Ala. 277, 6 So. Rep. 291 ; Walker, 93 Ala. 165, 9 So. Rep. 382; Thorington v. City Council, 88 Ala. 548, Shulman v. Fitzpatrick, 62 Ala. 571. 7 So. Rej). 363; DoUins v. Pollock, 89 ' Redtield & Rice Manuf. Co. v. Dysart, Ala. 351, 7 So. Rep. 904 ; Allen v. Cowan, 62 Pa. St. 62; Kerr v. Biriiie, 25 Ark. 28 Barb. 99; Peck v. Mallams, 10 N. Y. 225 ; Milburn i-. Phillips (Ind.), .34 N. E. 509, 528. VOL. I. 257 § 310.] CONSIDERATION. payment of the consideration, carries witli it proof that the con- sideration was paid, so far as the grantor is concerned ; but his admission of payment, when used against his creditors, is no evi- dence against them. As against them, a deed is regarded as merely vohmtary until evidence is offered that it was founded on a valuable consideration, and that this was actually paid. These decisions tend to the suppression of fraud. ^ 1 Kimball v. Feuner, 12 N. H. 248, per Parker, C. J. 258 CHAPTER XVII. OPERATIVE WORDS. 311. The operative words of a deed are the words by which the estate passes from the grantor to the grantee. " Originally the operative words which were used all had their distinctive meanings and appropriate uses. These words are: ' enfeoff,' proper to be used in a feoffment ; ' grant,' applicable to the conveyance of freehold hereditaments of every kind not lying in livery ; ' release,' appropriate to the conveyance to the person in possession of the remainder expectant on his estate; ' alien and assure,' the most general words of conveyance; 'bargain and sale,' which operated either under the Statute of Uses, to vest the legal estate in the bargainee, or at the common law, in exer- cise of a common-law power of sale ; and ' confirm,' which, tliough properly suitable only to cases of actual confirmation of a previous conveyance, was generally used without distinct reference to its proper meaning. . , . Where a deed operates in exercise of a power, the proper oj)erative word is ' appoint.' "^ While words of conveyance should be j^laced in the appropri- ate part of the deed, it is sufficient if they are found in any part of it, and are so used as to express an intention to convey.^ 312. Any words which denote an intention to transfer the title to land are sufficient to make an effectual deed.^ The words " make over and grant " are effectual to convey land by way of a use in a deed of bargain and sale."* But where the only words used were " sign over," it was held that they could not be considered operative words showing an intention to convey 1 5 Bythewood's I'icc. 162, 163. 8 Gambril v. Rose, 8 Blackf. 140, 44 2 Bridge ;•. Wellington, 1 Mass. 219; Am. Dec. 760. The word.s were " mort- Kenworthy v. Tulli.s, 3 Iiid. 96 ; Hum- gage, assign over, and transfer." Cobb inelman v. Mounts, 87 Ind. 178, per El- v. Hines, Biiabee, 343, .59 Am. Dec. 559. liott, J.; P.ranson v. Studcbaker (Ind.), * Jack.son ?;. Alexander, 3 Johns. 484. 33 N. E. Rep. 98, 105, per Elliott, J. 259 § 31;). J OPERATIVE WORDS. an estate in laiid.^ The word '' convey " passes the title as ef- fectually as a grant at eoninioii law.- The word "grant " is of veiy gi'neral use as a word of convey- ance. It has lost its restricted meaning at common law, and is at the present day eifectual to convey an estate in a corporeal hereilitanient.''^ Where the words '' give and grant," and the words "- bargain and sell," as well, are used, the operative words of both these forms of conveyance are united, and the deed is a deed of feoffment as well as a deed of bargain and sale,* and requires no pecuniary consideration to support it. Words of conveyance in the past tense only are sufficient, as, for instance, " have given, granted, and confirmed." ^ 313. The courts will construe the words used by the par- ties so as to give effect to the deed, if possible. "The judges have been aatuti to carry the intent of the parties into execution, and to give the most liberal and benign construction to deeds, ut res magis valeaty ^ Upon this principle a feoffment, or a bargain and sale from a parent to a child, to take effect after the death of the parent, may be held to be a covenant to stand seised to the use of the parent for life, because a deed of bargain and sale would be void." A release to one not in possession, if made for a valuable con- sideration, will be construed to be a bargain and sale, or a cove- nant to stand seised, by which the estate might pass.^ And so a deed of lease and release has been held to be a covenant to stand seised to uses where the consideration was a good one.^ A deed which cannot take effect as a bargain and sale, for want of a 1 McKinney v. Settles, 31 Mo. 541. C. 101, 106 ; llussell v. Coffin, 8 Pick. 143 ; 2 Patterson v. Carneal, 3 A. K. Marsh. Bryan v. Bradley, 16 Conn. 474; Emery 618, 13 Am. Dec. 208. v. Chase, .5 Maine, 232 ; Jackson v. Beach, 3 San Francisco & 0. R. Co. v. Oak- 1 Johns. Cas. 399, 402. land, 43 Cal. 502. ' Wailis v. Wallis, 4 Mass. 135 ; Brewer * Poe V. Dotnee, 48 Mo. 441 ; Perry v. v. Hardy, 22 Pick. 376. And sec Barrett Price, 1 Mo. 553 ; Belden v. Seymour, 8 v. French, 1 Coun. 354 ; Rowietts v. Dan- Conn. 304, 318, 21 Am. Dec. 661, per Hos- iel, 4 Munf. 473. mer, C. J. ; Cheney v. Watkins, 1 Ilarr. » Pray v. Pierce, 7 Mass. 381 ; Lynch &J. 527; Spring's y. Hanks, 5 Ired. .30. i). Livingston, 8 Barh. 463. Such prior ° Pierson v. Armstrong, 1 Iowa, 282. possession is not now necessary under the 8 Roe V. Tranmer, 2 Wils. 75, per Willes, common form of conveyance hy quitchiim C.J. See. also. Shove y. Pincke, 5 T. R. and release. Russellr. Coffin, 8 Pick. 143. 124; Haggerston v. Hauhurv, 5 Barn. & ^ Doe v. Tranmer, 2 Wils. 75. 260 OPERATIVE WORDS. [§§ 314, 315. pecuniary consideration, may be given effect as a covenant to stand seised if there is a consideration of blood.i In Massachusetts, where a valuable consideration is sufficient to support a covenant to stand seised, a deed of bargain and sale may operate as a covenant to stand seised when it is necessary that it should have that effect in order to carry out the manifest intention of the parties.^ 314. A deed without words of conveyance passes no title.^ In some States it is provided by statute that any instrument in writing signed by the grantor is effectual to transfer the legal title, if such was the intention of the grantor, to be collected from the entire instrument. But, even under such statutes, some words of conveyance are necessary."^ The statute does not wholly dis- pense with the use of words operative to convey, but simply im- poses upon the courts the duty of construing liberally the words employed as words of transfer.^ An assignment of a deed, indorsed thereon, does not convey any interest in the lands therein described. In equity it might entitle the assignee to a decree for a specific performance, but it cannot operate as a transfer of the legal title.*^ 315. If an instrument has no words of conveyance, the courts have no right to put them in by interpretation. " Courts cannot make contracts for parties. It is not their prov- ince to write in an instrument words which will make it operative as a deed, where none of that character have been written by the parties themselves. The rule that courts will so construe an in- 1 Eckman r. Eckman, 68 Pa. St. 460. * Bell v. McDuffie, 71 Ga. 264. 2 Trafton v. Ilawes, 102 Mass. .-iS-S, 541, ^ Webb v. Mullins, 78 Ala. Ill ; Brew- 3 Am. Kep. 494; Hall v. Bliss, 118 Mass. tou v. Watsou, 67 Ala. 121. The instru- 5.54, 560, 19 Am. Kep. 476, jier Gray, C. ment in this case was styled articles of •T.; Prav y. Pierce, 7 Mass. 381, 384, 5 agreement, and the only words referring Am. Dec. 59; Russell v. Coffin, 8 Pick, to the passing of the title were, "and the J43 J51 said Watson, upon the faithful perfurm- 3 Davis 1-. Davis, 43 Ind. 561, where the ance on her part of this contract, shall deed, after naming the grantors, was " for have and be entitled to, at and after the the sum of si.x thousand dollars, the fol- death of said Rrowning, all the property, lowing real estate," describing it. Hum- both hmiI and personal, now owned by the mdman v. Mounts, 87 Ind. 178, where said Browning." It was held that these the writing was "I., J. S., warrant and were words of covenant or contract, and defend unto C. S., her heirs and a.ssigns not of conveyance. forever, the receipt whereof is hereby « Bentley y. Deforest, 2 Ohio, 221, 15 acknowledged, the following real estate," Am. Dec. 546. There are decisions to the ile^cril)ed contrary. See § 589. 261 §§ BIG, 317.] OrKliAllVK WORDS. stniinent as to make it effective does not mean that courts shall iiiji'ot into it new aiul distinct provisions.'' ^ 316. A deed does not bind a person signing it unless it con- tains words expressive of an intention to convey some estate, title, or interest.^ " It has been said that the signing of a cU'ed manifests the intention of the signer to be bound by it, and that tlie courts shoukl construe every instrument so as to give effect to the intention of the parties to it. But tlie intention of the parties to a wiitten contract must be derived from tlie hmguage of the contract itself; and, where there is nothing in the deed to show an undertaking on the part of one of the signers to convey, we do not see very clearly that his signature manifests a purpose to make a conveyance. Where the tith^ is in one person, and the consent of another is essential, under the law, to convey such title, and such other signs the deed, his name not appearing thereon as a grantor, the signature, it would seem, would merely manifest his consent to the conveyance." ^ Merely signing, sealing, and acknowledging an instrument in which another person is grantor is not sufficient.* 317. If from the whole deed the grantor appears to be named as such, and his intention to convey is manifest, the deed is not void, though his name does not appear in its proper place in the granting clause. Thus, where a conveyance is in the form of an indenture between the person who signs it as grantor, ^ Hummelman v. Mounts, 87 Ind. 178, per Elliott, J. 2 Catlin V. Ware, 9 Mass 218, 6 Am. Dec. 56 ; I'eabody v. Hewett, 52 Me. 33 ; McKinney v. Settles, 31 Mo. 541. 3 Stone V. Sledjre (Tex ), 26S. W.Rep. 1068. per Gaines, J. * Batchelor v. Brereton, 112 U. S. 396 ; Af,'ric:nltnral Bank v. Rice, 4 How, 225, per Tauey, C. J. ; Lane v. Dolick, 6 Mc- Lean, 200, 203 ; Powell v. Monson, &c. Manuf. Co. 3 Mason, 347 ; Hall v. Savage, 4 Mason, 273 ; Cox v. Wells, 7 Blackf. 410; Catlin v. Ware, 9 Mass. 218,6 Am. Dee 56; Lufkin v. Curtis, 13 Mass. 223; Hubbard ;■. Knous, 3 Gray, 567 ; Bruce V. Wood, 1 Met. 542; Leavitt v. Lam- prey, 13 Pick. 382, 23 Am. Dec. 685; Greenough v. Turner, 11 Gray, 332; 262 Wildes V. Vanvoorhis, 15 Gray, 139; Pealiody v. Hewett, 52 Me. 33 ; Payne v. Parker, 10 Me. 178, 25 Am. Dec. 221 ; Lothrop V. Foster, 51 Me. 367 ; Stevens v. Owen, 25 Me. 94 ; Harrison v. Simons, 55 Ala. 510; Adams v. Medsker, 25 W. Va. 127 ; Hatchings v. Ta]I)ot, 3 Har. & J. 378; Purcell v. Goshorn, 17 Ohio, 105. Texas: Stone v. Sledge (Tex.), 26 S. W. Kep. 1068, affirming (Tex ) 24 S. W. Rep. 697. Contrary to the general rule, see In- goldsby V. Juan, 12 Cal. 564; Dentzel v. Waldie, 30 Cal. 138; Stone v. Montgom- ery, 35 Miss. 83; Armstrong v. Stovall,26 Miss. 275 ; Woodward v. Seaver, 38 N. H. 29; Burge v. Smitli, 27 N. H..332; Elliot v. Sleejjer, 2 N. H. 525, OPERATIVE WORDS. [§ 318. of one part, and a person named as grantee, of the other part, the omission of the grantor's name in the granting clause, when it appears in the covenant of warranty as well as in the in testi- monium clause, is not a fatal defect. ^ The receipt of the consideration by a person who signed a deed but did not join in it as a grantor does not operate to give effect to the deed as his conveyance.^ 318. A deed by a husband in his own name only, conveying his wife's land in fee, in which she does not join, though she affixes her signature and seal, is not a conveyance of her estate in fee.3 Her signature, "in token of her relinquishment of all her right in the bargained premises," or " in token of her release of dower/' does not convey her title in fee, nor bar her from assert- ing her title.* That it was her intention to convey her estate in fee is not sufficient unless this intention is expressed in the deed. Such intention will not enable a court of chanceiy to correct the mistake and decree the execution of a perfect deed.^ The signing of the deed by the wife at most merely signifies her consent to the conveyance ; it does not convey any interest or estate she has in the granted land. Under statutes which provide that a conveyance b}^ a married woman may be made with the written consent of her husband, it is held that this consent is suf- ficiently manifested by his signing a deed by which his wife con- veys her separate property, though he is not named as a party to the deed.^ The husband has nothing to convey, and his assent to the conveyance by his wife is all that is required. The case is very different when the legal interest or estate is in the wife, and she does not join in the deed, or use any words manifesting an intention to convej' such interest or estate, but merely signs ;i deed which purports to be a conveyance by the husband alone.' 1 Mardes v. Meyers (Tex. Civ. App.), 25 Am. Dec. 221 ; Purcell v. Goshorn, 17 28 ^. W. Rep. 693. The court distin- Ohio, 10.5. {.'uish tlie case from Stone v. Sledj,'e (Tex. ■• Wales v. Coffin, 13 Allen, 213. Slip), 26 S. \V. Rep. 1068, where it no- ^ Purcell y. Goshorn, 17 Ohio, 105. In when- appeared from the deed that Mrs. New Hampshire, by custom, the wife i.s Stone was to join her husband in its exe- hound by si<:ning, without more. Wood- cuiion. ward v. Seaver, 38 N. II. 29; Elliot v. - A{;ricultural Bank v. Rice, 4 How. Sleeper, 2 N. H. 525. 225. e § 38, and Ochoa v. Miller, 59 Tex. ^ A<:ricultural Bank v. Rice, 4 How. 460. 225; Bruce v. Wood, 1 Met. 542, 35 Am. '^ Stone v. Sledge (Tex.), 26 S. W. Rep. Dec. 380; Payne v. Parker, 10 Mc. 178, 1068. 263 R 319.] OPEKATIVK WORDS. 319. A wife cannot bar her right of dower by signing and sealing her husband's deed without any words of conveyance or of release by her of dower.' By usage, however, in New Humpsliire a wife may bar her dower by signing her husband's deed without any words of con- veyance or release.^ The words, "in token of lier free consent," used at the conchi- sion of a deed, do not sufficiently express her intention to bar her right of dower,^ nor do the words, " I agree in tlie above con- veyance. " ^ If a wife having an estate in fee executes a deed of it with her liu.sb;tnd, both joining in the granting part of the deed, the fact tliat the wife also releases dower and homestead in the granted pi'emises does not restrict her conveyance to these interests, but the deed passes the title of the wife in fee.^ 1 Hall V. Savage, 4 Mason, 273 ; Green- lawyers, or were materially aided by an ongh V. Turner, 11 Gray, 332 ; Learned v. educated bar; and it is probably owing to Cutler, 18 Pick. 9; Leavitt v. Lamprey, this circumstance that the custom became 13 Pick. 382, 23 Am. Dec. 685 ; Lufkin established here, that the wife may re- V Curtis, 13 Mass. 223 ; Catlin v. Ware, lease her dower by her signature and seal 9 Mass. 218 ; Stevens v. Owen, 2.5 Me. 94 ; at the foot of her husband's deed, with- Lothrop I'. Foster, 51 Me. 367 ; Cox v. out her name being in any other way Wells 7 Blackf. 410, 43 Am. Dec. 98 ; mentioned or alluded to in the instru- Davis V. Bartholomew, 3 Ind. 485. ment. Such is found, by an examination ■^ Buro-e V. Smith, 27 N. H. 332, 337. of the records of deeds, to beaverycom- In explanation of this usage. Bell, J., mon mode of conveyance among the un- after speaking of the different rule in professional magistrates, by whom a large Massachusetts and Maine, and of the fact part of the conveyances are made in this that pretty early in provincial times their State." courts consisted, in part at least, of men 3 Stevens v. Owen, 23 Me. 94. educated as lawyers, said: "In New * Hall y. Savage, 4 Mason, 273. Hampshire it was much later before the ^ Sinith v. Carmody, 137 Mass. 126 ; courts were either composed of educated Stone v. Montgomery, 35 Miss. 83. 264 CHAPTER XVIII. DESCRIPTION AND BOUNDARIES. I. Certainty, 320-334. II. Parol evidence, 335-353. III. Boundary lines by agreement, 354- 380. IV. General rules of construction, 381- 409. V. General and particular descriptions, 410-423. VI. References to maps and surveys, 424-447. VII. Boundary by highway, 448-469. VIII. Boundary by the sea, rivers, and lakes, 470-501. I. Certainty. 320. In General. The description of the parcels follows im- mediately after the operative words, and should contain all the particulars necessary to clearly and accui'ately identify the prop- erty, such as its situation in a town and county named, its bonn- (hiries, their measurements, and the total area. A house in a town is usually described as situate in a pai'ticular street or road, and the dimensions of the lot of land are usually given in linear feet. The street number of the house is a useful particular. Land in the country is usually described by reference togovei'nment surveys, or to private surveys of the particular property. A plan should be annexed or referred to when practicable. The boundaries are often fixed by reference to the land of adjoining owners. Boun- daries are sometimes determined by reference to fixed monuments, or by their distance fi-om streets or natural or permanent objects. A reference to the occupancy of the property by a former owner, or by a tenant, is often a useful means cf identification. Resort may be had to other parts of a deed to aid in determin- ing what property the deed was intended to convey. Thus, a recital in a settlement of an intention to settle property in a par- ticular county was allowed to limit words in the description which included all the settler's property.^ Deeds purporting to convey lands, wliich do not describe or designate the lands, are invalid for uncertainty.^ 1 Jenner v. Jenner, L. R. 1 Eq. 361. - WiNon v. Johnson (Ind.), 38 N. E. 2(35 § 321.] DESCRIPTION AND BOUNDARIES. 321. The situation of the land, :is regards tlie State, oounty, town, or loL';ility in wliich the land is located, must be mentioned in the deed, or indicated sidliciently to enable one to determine the location of the land; but if, (aking all the facts which appear npon the face of the deed, and the legal presumptions which nat- urally flow from these facts, the true locality may be determined by I he aid of proper averments and extrinsic proof, the deed will not be void for uncertainty.^ Thus, where a deed commenced with the words, " State of Tennessee, Lawrence County," and the land was described as lying on a certain creek in Lawrence County, and the deed was acknowledged before the clerk of the county court of Lawrence County, it was held that it sufficiently appeared by the deed, coupled with the grantee's averment that the land intended to be conveyed was situated in Lawrence County, in the State of Tennessee, to entitle him to show the facts by extrinsic proof.^ There is a presumption, in the absence of anything in the instru- ment to the contrary, that the land is in the State in which the parties reside and in which they execute the deed.^ This pre- sumption is one of fact and may be rebutted by oral evidence.* If there is a mistake in the deed as to the general location of the land, though the description is perfect, parol evidence is ad- Rep. 38; Buchanan v. Whitman, 36 Ind. 257 ; Shoemaker v. McMonigle, 86 Ind. 421. 1 Bryan v. Wisner, 44 La. Ann. 832, 11 So. Rep. 290; Calton v. Lewis, 119 Ind. 181, 21 N. E. Rep. 47.5; Dutch v. Boyd, 81 Ind. 146 ; Noland v. Wassou, ll.T Ind. .529, 18 N. E. Rep. 26; Banks v. Amnion, 27 Pa. St. 172; Wilt v. Cutler, 38 Mich. 189; Black i: Pratt Coal & Coke Co. 85 Ala. 504, 5 So. Rep. 8'J ; Walker v. Moses, 113 N. C. 527, 18 S. E. PiCp. 339. Thus, in a conveyance by an adminis- trator which leaves the location of the land in doubt, tills may be determined by reference to maj)S, to land certificates {giving the location and description of sur- veys, district immbers, patents, and the like, and by reference, also, to proceedin;.'s bad in the administration and ijartition of the estate ; Kerlicks r. Keystone Land Co. (Tex.) 21 S. W. Rep. 623. •266 2 Calton!' Lewis, 119 Ind. 181,21 N. E. Rep. 475, 476, per Mitchell, J. : "If, there- fore, the name of the State was omitted through the negligence or inadvertence of the parties, or of the scrivener who pre- pared the deed, or if it was supposed that the State in which the land was situate was sufficiently identified by the caption to the deed, it does not constitute a mis- take of law of which the grantor can avail himself when asked to respond for a breach of the covenants contained In the deed. In a case like the present It is not es.sentlal to the grantee's right to recover damages for a breach of the covenant of seisin that there should first be a reforma- tion of the deed. Tlie deed not being void, it is only necessary that, under proper averments, the identity of the land described in the deed be proved." 8 Dutch V. Boyd, 81 Ind 146 ; Homan V. Stewart (Ala.), 16 So. Rep. 35. 4 Mead v. Parker, 115 Mass. 413. CERTAINTY. [§ 322. missible to identify the land, and the erroneous general location may be rejected as surj^lusage.^ When land is described according to the system of the public land surveys of the United States, the description is sufficient though the county and State or Territory in which the land is situ- ated be not given, for judicial notice is taken of such surveys.^ If the county or school district in which the land is situated be given, with a particular description by metes and bounds, tliough the section and township be omitted, the location can be identified.'^ But if there is nothing in the deed to indicate the township, range, or county in which the land is situated, and this is described only by the number and subdivisions of a section, the description is void on its face.* 322. A misnomer of the city, to'wn, or county in \^hich the land is situate does not invalidate the deed if the description is suflacient to identify the land.^ Thus, where land is described as being in a certain city, but by a prior change of the city limits is in fact in another town, and the grantor is seised thereof when the conveyance is made, and the land can be identified by the de- scription in the deed, the deed is valid.^ It was contended in this case that the name of a town is such an essential and ma- terial part of the description in a deed that it cannot be con- trolled by the language of the rest of the description. But this is too broad a contention. The general rule on this subject is thus stated by Chief Justice Parsons : " "It seems to be a general rule 1 Myers i'. Ladd, 26 111. 415; Lochte ' Worthington i;. Hylycr, 4 Mass. 196, V. Austin, 69 Miss. 271, 13 So. Rep. 838 ; 205. These remarks, says Lathrop, J., in Armstrong v. Colby, 47 Vt. 359. Perry v. Clark, supra, were undoubtedly - Carson v. Kaijsback, 3 Wash. T. 168, founded on Doddington's Case, 2 Coke, 13 Pac. Rep. 618; Beal r. Blair, 33 Iowa, 32, where the distinction was drawn be- 318: Mee r. Benedict, 98 Mich. 260, 57 N. tween general and particular words of W. Rep. 175. grant, and it was said : "And therefore, ■' Fuller V. Fellows, .30 Ark. 657 ; Gor- when the general words of patent do not don V. Goodman, 98 Ind. 269. comprehend content, number, nature, •» Dorr V. School District, 40 Ark. 237 ; quality, certain name, nor any convenient Hau-,'hton v. Sartor (Miss.), 15 So. Rep. certainty of the land, but the town is the 71, overruling Foute v. Fairman, 48 Miss, principal thing which restrains the gen- 536. erality of the grant, and reduces it to a 5 Perry v. Clark, 157 Mass. 330, 32 N. certainty, it would be dangerous to extend E. Rep. 226; Stringer r. Young, 3 Pet. the same out of the town comprised in the 320 ; Lamb r. Reaston, 1 Marsh. C. P. 23. grant. . . . But it is otherwise when any " Perry v. Clark, s>i/ini : and see Pres- grant doth comprehend any convenient ton r. Robin-soii 24 Vt. 583. ccrtaintv, as of a manor, farm, land known 267 S 'Cy2'^.] DESCRIl'TION AND BOUNDAIilES. thai, when thi; description of the estate iutemled to be conveyed inchidod several particuLu'S, all of which are necessary to ascer- tain the estate to be conveyed, no estate will pass except snch as will atings v. Hastings, 110 Mass. 2S0; Klii.t y. Thatcher, 2 Met. 44 ; Bond v. Fay, 12 Allen, 86 ; Bosworth V. Sturtevant, 2 Cnsh. 392 ; Parks v. Loo- mis, 6 Gray, 467 ; Worthington v. Hylyer, 4 Ma.ss. 196; Waterman v. Johnson, 13 Pick. 261 ; IMelvin v. Proprietors of Locks and Canals, 5 Met. 15, 38 Am. Dec. 384 ; Morse V. Rogers, 118 Mass. 572, 578; Au- burn Cong. Church v. Walker, 124 Mass. 69; Lovejoy v. Lovett, 124 Mass. 270; Cassidy v. Charlestown Savings Biink, 149 Mass. 325, 327, 21 N. E. Rep. 372. Micliigan : Wiley v. Lovely, 46 Mich. 83, 8 N. W. Hep. 716; Wilt v. Cutler, 38 Mich. 189. Mississippi: Lochte v. Aus- tin, 69 Miss. 271, 13 So. He|>. 838. Mis- souri: Union Ry. & T. Co. v. Skinner, 9 Mo. A pp. 189; West v Brf telle, 115 Mo. 653, 22 S. W. Rep. 705 ; Evans v. 979 Greene, 21 Mo. 170; Shewalier v. Pir- ner, 55 xMo. 218; Gibson v. Bogy, 28 Mo. 478 ; Jamison v. Fopiano, 4S Mo. 194; Rutherford v. Tracy, 48 Mo. 325, 8 Am. Rep. 104; Bray v. Adams, 114 Mo. 486, 21 S. W. Rep. 853. New Hamp- shire : Benton v. Mclnlyre, 64 N. H. 598, 15 Atl. Uep. 413; Harvey v. Mitchell, 31 N. H. 575 ; Johnson v. Simpson, 36 N. H. 91 ; Tliompson v. Ela, 60 N. H. 562; White V. Gay, 9 N. H. 126, 31 Am. Dec. 224; DriscoU v. Green, 59 N. H. 101; Eastman v. Knight, 35 N. H. 551 ; Win- nipisiogce Paper Co. v. N. H. Land Co. 59 Fed. Hep. 542, 547, per Aidrich, J. New York: Case v. Dexter, 106 N. Y. 548, 13 N. E. Hep. 449 ; Jackson v. Bar- ringer, 15 Johns. 471 ; Jackson v. Clark, 7 Johns. 217 ; Looniis v. Jackson, 19 Johns. 449; Robinson v. Kime, 70 N. Y. 147; Baldwin v. Brown, 16 N. Y. 359; Dan- ziger V. Boyd, 21 J. & S. 398 ; Si hoene- wald V. Rosenstein, 25 N. Y. St. Ref). 964, 5 N. Y. Supp. 766 ; Muldoon v. Dtliiie, 135 N. Y. 150, 31 N. E. Rep. 1091. North Carolina: Proctor y. Pool, 4 Dev. 370; Simpson v. King, 1 lied. Ecj. II ; Shaffer v. Halin, 111 N. C. 1, 15 S. E. Rep. 1033; British & Am. Murt. Co. v. Long, 113 N. C. 123, 18 S. E. Hep. 165. Ohio : Merrick v. Merrick, 37 Ohio St. 126, 41 Am. Hep. 493. Oregon: Hayinond V. Coffey, 5 Oreg. 132. Pennsylvania : Duncan v. Madara, 106 Pa. St. 562. Texas : Coffey v. Hendricks, 66 Tex. 676 ; Barnard v. Good, 44 Tex. 638 ; Kingston V. Pickins, 46 Tex. 99 ; Smith v. Chatham, 14 Tex. 322 ; Oliver v. Malioney, 61 Tex. 610 ; Robinson v. Doss, 53 Tex. 496 ; Pe- terson V. Ward (Tex. Civ. App.), 23 S. W. Hep. 637; Arambula r. Sullivan, 80 Tex. 615, 16 S. W. Hep. 436; Minor v. Powers (Tex.), 24 S. W. Rep. 710 ; Birds. eye v. Rogers (Tex. Civ. App), 26 S. W. Rep. 841. Wisconsin : Green Bay v. Hewitt, 55 Wis. 96, 12 N. W. Rep. 382; Thompson v. Jones, 4 Wis. 106. CERTAINTY. [§§ 327, 328. grant of I S, but of the grant of another. But if the words be, ' all my lands which I had by the grant of I S in D,' in this case the grant is not good to carry any other lands in D but such as he had of the grant of I S. So, if one grants in this manner, ' all my manor of sale in Dale, wliicli I had by descent,' and in ti'uth he had it not by descent but by pui-chase, this is a good grant of the manor." In case there are two inconsistent descriptions equally explicit, that will control which best expresses the inten- tion of the parties as manifested by the whole instrument.^ 327. A court of law can correct a description only by way of a construction of the language used, and with a view to carry out the manifest intention of the grantor. One part of a description cannot be rejected merely because it is inconsistent with another part. If the ambiguity is patent, the deed is V(dd. But it' from the whole deid it appears that the intention of the grantor can evidently be carried out by the rejection of a repugnant clause or word, this can be done by construction in a court of law ; otherwise the parties must seek a court of equity, wiiere alone a deed can be reformed.^ A mistake in naming the owner of lands, when the real owner conveys it, is immaterial. Thus a deed by a married woman, properly describing land which she had inherited from her father, is not invalidated by her describing it as land which her husband had inherited from her father.^ 328. The maxim, falsa demonstratio non nocet, is not ap- plicable unless the descriptive phrase to be suppressed is cleai-ly repugnant to other and more important parts of the description. To justify the suppression of a part of a description, this must not only be out of harmony with other parts of the description, but it must be undeniably so, in some important respect, after 1 Driscoll V. Green, 59 N. II. 101; Rep. 394; West c. Rretelle, 115 Mo. 653, White V. Gay, 9 N. II. 126, 31 Am. Dec. 22 S. W. Kep. 705 ; Gil.soii c. Bo^y, 28 Mo. 224 ; Lane v. Thompson, 43 N. H. 320 ; 478 ; Kutherford n. Tracy, 48 Mo. 325, Allen V. Ilolton, 20 Pick. 458, 463, per 8 Am. Kep. 104; Jenninfrs r. Bii/.eadiiie, Wilde, J.; Wade v. Deray, 50 Cal. 376; 44 Mo. 332; Kin-,' v. Fink, 51 Mo. 209; More I". Massini, 37 Cal. 432; Benedict Cam|)l)ell v. Johnson, 44 Mo. 247 ; Evaus r. Gaylord, 11 Conn. 332, 29 Am. Dec. ;-. Greene, 21 Mo. 170,208; Shewalter y. 299; Raymond v. Coffey, 5 Oreg. 132; Pirner, 55 Mo. 218. Bond V. Vay, 8 Allen, 212, 12 Allen, 86. ^ Grant v. Armstrong (Ky.), 16 S. W. 2 Boardman ;;. Ricd, 6 Pet. 328; Foid Rej). 531. V. Unity Church, 120 Mo. 498, 25 S. \V. VOL. I. 278 § 329.] DESCRIPTION AND BOUNDARIES. putting a reasonable construction upon the rest of the descrip- tion. Words of general description will not always prevail over an oiuuneration of particulars; for, in cas(^s where tliere is an eiuuneration of {)articulars, which on their face purport to be designed as (pialiiications or restrictions of a preceding general description, the; general description must yield to the particular descri[>ti in.^ 329. After an accurate description, an inaccurate descrip- tion following which is merely accumulative will be rejected.'- If land be described by a name which is applicable to the whole of it, a subsequent description, which appears to be merely a second description, and in fact covers only a part of the land first described, does not affect the general description, but will be rejected.^ But if the further descriptive phrase restricts or qual- ifies the general terms of the description, effect must be given to the words of restriction or qualification. 1 Evens v. Griscom, 40 N. J. L. 402, 42 N. J. L. 579. In this case the words were : " All that my farm and plantation near Cropwell conveyed to me by the heirs of my deceased wife, and where my son Thomas now resides, containing about eifihty-five acres, more or less." The tt's:ator's farm near Cropwell, whereon his son Thomas resided, embraced in fact fourteen acres, which had not been conveyed to him by tlie heirs of his wife, but had come to him from an entirely ilifFerent source. Consequently the words " conveyed to me by the heirs of my de- ceased wife " stood in direct incompatibility wiih two other descriptions of the lands intended to be devised, namely, " all that iny farm near Cropwell," and " where " or wherever " my son Thomas now resides ; " M) that a case was presented which com- jx-lkd the court to decide whether the words " conveyed to me by the lieirs of my deceased wife " were a mere false descrip- tion, or were used to restrict the generality of the language of both a previous and subsequent description. It was held that these words restricted the general descrip- tion, and were not to be suppressed. This case is commented upon and approved in Kanouse r. Slockbower, 48 N. J. Eq. 42, 274 21 Atl. Rep. 197, where Van Fleet, V.-C, states it to this effect : " Whenever the testator's intention to give the whole us an entirety clearly appears from the lan- guage of the will, whether such intention is expressed by a designation, by a name, or by abuttals, or other descriptive words, additional words of description which prove to be only partially true will be re- jected as a misdescription. But it is not true that words of general description will always ])revail over an enumeration of particulars ; for, in cases where there is an enumeration of particulars, which on their face purport to be designed as qualifications or restrictions of a preced- ing general description, there the general description must yield to the particular description. This rule has its root in that great principle which declares that in con- struing wills the court must, if possible, give effect to every word of the will." '•^ Cassidy v. Charlestown Savings Bank, 149 Mass. 325, 327, 21 N. E. Rep. 372. •^ Chamberlaine v. Turner, Cro. Car. 129 ; Down v. Down, 7 Taunt. 343 ; Ela V. Card, 2 N. H. 175; Drew v. Drew, 28 N. H. 489 ; Crosby v. Bradbury, 20 Me. 61 ; Gri.scom v. Evens, 40 N. J. L. 402, 29 Am. Rep. 251, 42 N. J. L. 579. CKRTAINTY. [§§ 330, 331. 330. A manifest omission in a description may be supplied by construction when the deed famishes sufficient data for tliis purpose.^ In like manner a manifest error, such as an error in the number of a lot or block of land, may be corrected by the data supplied by the deed.^ " The omission of one of the boun- dary lines, or of a call in a survey, does not necessarily render the description void ; for the remaining line may be determined by the lines given, and, if need be, the description may be aided by extrinsic evidence.^ 331. A reference for description to other deeds or title papers is equivalent to incorporating the full descriptions set forth in such papers, and competent evidence is admissible to locate the land so described.'^ Of course the reference to such deeds or title papers must be specific. A reference in general terms to the records of the county for a description is without effect.^ If a deed referred to be fully identified, it is immaterial that it has not been recorded in the county in which it is recited in the reference as having been recorded.*^ A deed of a parcel of land secured to the grantor by letters patent of a certain quantity of land situated in a named land-district of Texas, " on the waters of the Brazos River, and fully described in the foot-notes of said patent," contains a description sufficient to convey the land de- scribed in the patent, though the latter was not in fact issued to 1 Deal V. Cooper, 94 Mo. 62; Hoffman Mo. 83, 6 S. W. Rep. 651 ; Glamorgan v^ r. Riehl, 27 Mo. .5.54 ; Burnett u. McCluey, Badger & St. L. Ry. Co. 72 Mo. 139 78 Mo. 676; Edwards v. Bowden, 99 N. Dolde v. Yodicka, 49 Mo. 98; Nelson v C. 80; Moss v. .Shear, 30 Cal. 467 ; Camp- Brodhack, 44 Mo. .596 ; Hays r. Perkins bell V. Carruth, 32 Fla. 264, 13 So. Rep. 109 Mo. 102, 18 S. W. Rep. 1127; Cat 432. lett V. Starr, 70 Tex. 485, 7 S. W. Rep - Murray i\ Hobson. 10 Colo. 66, 13 844; Bowles r. Beal, 60 Tex. 322 ; Stein Pac. Rep. 921. beck v. Stone, 53 Tex. 382; Cleveland v 3 Montgomery !'. Carlton, 56 Tex. 431 ; Sims, 69 Tex. 153, 6 S. W. Rep. 634 John.son v. Williams, 67 Hun, 652, 22 N. Bratton v. Adams (Tex. Civ. A])p.), 26 Y. Supp. 247. S. W. Rep. 1108; Henry r. Whitaker, 82 * Robinson v. Brennan, 115 Mass. 582; Tex. 5, 17 S. W. Rep. 509; Gresham v. Waterman y. Andrews, 14 R. I. 589; Mil- Chambers, 80 Tex. 544, 16 S. W. Rep. ler V. Topeka Land Co. 44 Kans. 354, 24 326; Kyle v. Rhodes, 71 Miss. 487, 15 I'ac. Rep. 420 ; Davidson v. Arledge, 88 So. Rep. 40 ; Hoffman v. Port Huron N. C. 326; Euliss >: McAdams, 108 N. C. (Mich.), 60 N. W. Rep. 831 ; Rupert v. 507, 13 S. E. Rep. 162 ; Everitt v. Thomas, Penner, 35 Neb. 587, 53 N. W. Rep. .598 ; 1 Ired. 252; Walker v. Moses, 113 N. Newman r. Tymeson, 13 Wis. 172. C. 527, :8 S. E. Rep. 339; Powers v. ^ Brown y. Chambers, 63 Tex. 131. Jiickson, 50 Cal. 429 ; Caldwell v. Center, ^ Saunders v. Sehmaelzle, 49 Cal. 59. 30 Cal. 539 ; Glamorgan v. Hornsby, 94 275 g 3:32.] DKsciai'Tiox and boundaries. the oiaiitoi- till the Uipsc of several months after the execution of the deed.^ A deed which describes hind only by the number of acres in the parcel, and as lying on the north and east side of a speeilied lot, but subjeet to the dower of a widow named, " which has been laid oft" and assigned to her for life in said lot of land," is not void for uncertainty ; for there is a plain reference to the proceeilings by which dower was assigned to the widow, and the import of the deed is to convey the reversion to the identical parcel embraced in the assignment of dower.^ A deed referring accurately to another deed made to the grantor, and conveying all the parcels of land therein described not already disposed of, sufficiently describes such land.^ A de- scription of land in a certain town or county, or on a certain river, and simply by the name under which the property is known, is a sufficiently certain and definite description, when supple- mented by proper parol identification.* A deed describing land as " all that certain interest in the landed estates of H, deceased, to which we are or may be entitled by gift, devise, or descent, or otherwise," describes the property con- veyed with sufficient certainty.^ But a deed of land described as " inherited " from a certain person is not sufficient to embrace land which the grantor received by devise under the will of such person.^ » 332. A reference to another deed for a description may control a description by metes and bounds, when the latter is inaccurate according to the manifest intention of the parties to the deed. Thus, where one purchased a dwelling-house and lot by 1 Norton v. Conner (Tex.), 14 S. W. f. Stone, 53 Tex. 382 ; Bitner v. N. Y. & Rep. 193. And see Bitner v. New York Tex. Land Co. 67 Tex. 341, 8 S. W. Rep. & Tex. Land Co. 67 Tex. 341, 3 S. W. 301 ; Gresham v. Chambers, 80 Tex. .544, Rep. 301. A description of land by refer- 16 S. W. Rep. 326. ence to " the title of possession as given ■* Began v. Hamilton, 90 Ala. 4.54, 8 by George A. Nixon, especial commis- So. Rep. 186; O'Neal v. Seixas, 85 Ahi. aioner for Joseph Veheliu's colony, of 80, 4 So. Rep. 745 ; Liles v. Ratehford, 88 whi'h the said Mardes was a colonist," Ala. 397, 6 So. Rep. 914. is suniiient. Mardes y. Meyers (Tex. Civ. ^ Harris v. Broiles (Tex. Civ. App.), App.), 28 S. \V. Rep. 693. 22 S. W. Rep. 421. And see Austin v. ■^ Rarler v. Johnson, 81 Ga. 254, 7 S. E. Bolbce (Mich.), 59 N. W. Rej.. 608. Rep. 317. •> Kmeric v. Alvarado, 90 Cal. 444, 27 3 Falls Land, &c. Co v. Chisholm, 71 Pac. Rep. 356. Tex. 523, 9 S. W. Rep. 479 ; Steinbeck 276 CERTAINTY. [§ 333. a deed correctly describing the land, and afterwards gave a niort- gaoe ill which the description by metes and bounds did not cover a strip two feet wide along one side of the premises, but stated that they were the same premises conveyed to the mortgagor by duly recorded deed of a certain date, being the purchase-deed referred to, it was held that the purchaser at foreclosure of such mortgage obtained title to the entire premises described in the deed to the mortgagor; though the complaint, the decree, and the deed to such purchaser at the foreclosure sale omitted that part of the description in the mortgage which referred to the mortgagor's purchase-deed. ^ 333. An immaterial recital does not estop the parties from denying its truth. Thus, in the description of lands excepted from a conveyance, a recital that such lands had been conveyed to another does not estop the grantor, nor any one to whom he may convey the excepted lands, from alleging that no such con- veyance had in fact been made.^ 1 Bernstein c. Nealis (N. Y.), 39 N. E. the same premises,' etc. As to the mort- Eep. 328, reversing 19 N. Y. Supp. 739. gagor, however, and his grantees i-ubse- Peckham, J., said : " In this case the spe- qi ent to the mortgage, the particular citic description is slightly inaccurate, and description was sufficient to convey the in fact it cuts off two feet from a house premises as they actually existed. . . . and lot, the whole of which, beyond all Wlien the mortgagee comes to foreclose possible controversy, was intended to be the mortgage, therefore, he may take the conveyed. By reason of this inaccuracy mortgagor at his word, and may rely upon in the desd-iption by metes and bounds, it, and assume that the particular . Babcock, 18 R. I. 188, 26 Atl. Rep. 257. « Bond V. Fay, 12 Allen, 86; Benedict V. Gaylord, 11 Conn. 332, 29 Am. Dec. 299; Payne r. Atterbury, Har. Ch. 414; May V. Tillman, 1 Mich. 262 ; White v. PAROL EVIDHNCE. [§ 337. can be ascertained from the deed itself by rejecting a part (f tlie description manifestly false, resort should not be had to extrane- ous evidence.^ A grantor is not allowed to contradict his deed or to vary the description of the land thereby conveyed. ^ 337. An ambiguity which is patent on the face of the deed renders the instrument void. Pai-ol evidence is not in that case admissible to aid the description.'^ Tims, if a deed conveys a part of a lai-ger tract, without affording any means of determin- ing what part of such tract is intended, as for instance forty acres out of a quarter section of one hundred and sixty acres,* there is a patent ambiguity which parol evidence cannot aid. For the same reason, a deed of a tract of land in a county named adjoin- ing the lands of two j)ersons named is void, if the land is part of a larger tract belonging to the grantor; but if the land so described be not a part of a larger tract, and the quantity be given, the ambiguity is not patent and the land may be located by parol evidence.^ Smith, 37 Mich. 291 ; Shotwell v. Harri- son, 22 Mich. 410; Case v. Greeu, 53 Mich. 61.5, 19 X. W. Rep. 554; Thomp- son V. Smith, 96 Mich. 258, 55 N. W. Rep. 886 ; Gordon v. Trimmier, 91 Ga. 472, 18 S. 11. Rep. 404; Holston Salt Co. v. Camphell, 89 Va. 396, 16 S. E. Rep. 274. 1 Schoenewalfl v. Rossenstein, 25 N. Y. St. Rep. 964, 5 N. Y. Supp. 766 ; Brookman V. Kurtzman, 94 N. Y. 272 ; Masten v. 01- cott, 101 N. Y. 152, 4 N. E. Rep. 274; Case I'. Dexter, 106 N. Y. 548, 13 N. E. Rep. 449 ; Coffey v. Hendricks, 66 Tex. 676, 2 S. W. Rep. 47; Bond v. Fay, 12 Allen, 86, 8 Allen, 212 ; Benedict v. Gay- lord, 11 Conn. 33->, 29 Am. Dec. 299. 2 Harding v. Wrii,'ht, 119 Mo. 1, 24 S. W. Rep. 211 ; Jennings ;,'. Brizeadine, 44 Mo. 332 ; Jones v. Shepley, 90 Mo. 307, 2 S. W. Rep. 400. 3 Cox V. Hart, 145 U. S. 376, 12 Sup. Ct. Rep. 962 ; Boardnian v. Reed, 6 Pet. 328. Alabama : Chamher.s v. Ringstaff, 69 Ala. 140. Arkansas : Fuller v. Fel- lows, 30 Ark. 657. California: Mesick v. Sunderland, 6 Cal. 297 ; Brandon v. Lcd- dy, 67 Cal. 43. 7 Pac. Rep. 33. Illinois: Fi.sher v. Quackenbush, 83 111.310; Pry V. Pry, 109 111. 466. Mississippi : Brown V. Guice, 46 Miss. 299. Missouri : Camp- bell V. Johnson, 44 Mo. 247 ; Hardy v. Matthews, 38 Mo. 121 ; Jennings v. Brize- adine, 44 Mo. 332; King ?•. Fink, 51 Mo. 209. North Carolina : Dickens v. Barnes, 79 N. C. 490 , Hinchcy v. Nichols, 72 N. C. 66. Texas: Wilson v. Smith, 50 Tex. 365 ; Kingston v. Pickins, 46 Tex. 99 ; Norris v. Hunt, 51 Tex. 609 ; Stein- beck V. Stone, 53 Tex. 382 ; Ragsdale v. Robinson, 48 Tex. 379, 395 ; Kuowles v. Torhitt, 53 Tex. 557 ; Giddings v. Day, 84 Te.\. 605, 19 S. W. Rep. 682 ; Curdy V. Stafford (Tex. Civ. App.), 27 S. W. Rep. 823 ; Wooters v. Arledge, 54 Tex. 395 ; Mitchell r. Ireland, 54 Tex. 301 ; Allday v. Wl.itaker, 66 Tex. 671, 1 S. W. Rep. 794 ; Linney v. Wood, 66 Tex. 22, 17 S. W. Rep. 244. Wisconsin : John- son V. Ashland Lumber Co. 52 Wis. 458, 9 N. W. Re]). 464. < Campbell i\ Johnson, 44 Mo. 247. Also Allen v. Chambers, 4 Ired. Eq. 125, the words "to be laid off" in this case indicating that the land was part of a larger tract. Gricr v. ];h\ne, 69 N. C. 346. ■■' Perry v. Scott, 109 N. C. 374, 14 S. E. Rip. 294; Hinton r. Roach, 95 N. C. 281 § 338.] DESCRirriON AND BOUNDAKIES. Ami 60 II deed of kind "except such portion us has been laid out in town lots, and sold prior to the execution of the mortgage, ' which does not show which lots had been sold, is void for uncer- tainty, and cannot be aided by extrinsic lividence.^ A deed of "one tract of laml lying and being in the county aforesaid, adjoining the lands of A and B, containing twenty acres, more or less," is suiHcient to pass the title to any land, and the description cannot be aided by parol proof."'^ 338. Extrinsic evidence is always admissible to explain any uncertainty or latent ambiguity there may be in the de- scription in the deed, so as to make it apply to the parcel intended to be conveyed, and give effect to the deed.^ Thus, where a 106; AVhaiton v. Eborn, 88 N. C. 344; Edwards v. Bowden, 99 N. C. 80, 5 S. E. Rep. 283 ; McGlawhorn v. Worthington, 98 N. C. 199, 3 S. E. Rep. 633. Ill Dickens c. Barnes, 79 N. C. 490, the descript'on, "one tract of land lyinn^ and biiu}^ in the county aforesaid, adjoining thj lands of John J. Phelps and Norfleet I'eiuler, containing twenty acres, more or less," was held to be insufficient to admit the aid of parol evidence. But it has been intimated that this decision is over- ruled by Farmer v. Bates, 83 N. C. 387. In Blow V. Vaughan, 105 N. C. 198, 10 S. E. Rep. 891, a deed of "fifty acres of land lying in the county of Hertford, and bounded as follows," by the lands of three persons named, left open for explanation by ]^arol proof only tlie question whether there was a tract so bounded as to sepa- rate it from other tracts, and indicate its limits with reasonable certainty. In this case and in the case of Wilson v. John- son, 105 N. C. 211, 10 S. E. Rep. 895, a dist,iuction is taken between the words "bounded" and "adjoining," which is repudiatehatn, 124 Ind. 404, 24 N. E. Rep. 983. ■^ Dickens v. Barnes, 79 N. C. 490. ^Alabama: Guilinartin v. Wood, 76 Ala. 204. Arkansas: Dorr v. School Dis- trict, 40 Ark. 237. California: Thomp- son V. Motor Road Co. 82 Cul. 4'.)7, 23 282 Pac. Rep. 130; Reamer v. Nesmith, 34 Cal. 624 ; Vejar v. Mound City Asso. 97 Cal. 659, 32 Pac. Rep. 713. Colorado: Murray v. Hobson, 10 Colo. 66, 13 Pac. Rep. 921 ; Blair v. Bruns, 8 Colo. 397, 8 Pac. Rep. 569. Connecticut : Benedict v. Gaylord, 11 Conn. 332, 29 Am. Dec. 299. Georgia: Shore v. Miller, 80 Ga. 93, 4 S. E. Rep. 561. Illinois: Mason r. Merrill, 129 111. .503, 21 N. E. Rep. 799 ; Chicago Dock Co. V. Kinzie, 93 111. 415; Bradish y. Yocum, 130 111.386, 23 N. E. Rep. 114; Sharp V. Thompson, 100 111. 447, 39 Am. Rep. 61 ; Fisher v. Quackenbush, 83 111. 310; Colcord U.Alexander, 67 111. 581; Billings V. Kankakee Coal Co. 67 111. 489 ; Bybee v. Ilageman, 66 111. 519 ; Marshall V. Gridley, 46 111. 247 ; Stevens v. Wair, 112 111. 544; Smith v. Crawford, 81 III. 296. Indiana: Trentman v. Neff, 124 Ind. 503, 24 N. E. Rep. 895. Kentucky: Shelby V. Tevis (Ky.), 14 S. W. Rep. .501. Maine: Tyler v. Fickctt, 73 Me. 410. Massachusetts : Reynolds v. Boston Rub- ber Co. 160 Mass. 240, 34 N. E. Rep. 677 ; Macdonald v. Morrill, 154 Mass. 270, 28 N. E. Rep. 259; Crafts v. Kibbard,4 Met. 438 ; Stone v. Clark, 1 Met. 378, 35 Am. Dec. 370; Waterman v. Johnson, 13 Pick. 261 ; Kellogg v. Smith, 7 Cash. 375, 382 ; Dodd V. Witt, 139 Mass. 63, 66, 29 N. E. Rep. 475,52 Arn. Rep. 700; Lovejoy v. Lov(tt, 124 Mass. 270; Miles v. Barrows, 122 ]\Iass. 579, 581 ; Hootrn r. Comciford, 152 Mass. 591, 26 N. E. Rep. 407, 23 Am. PAROL EVIDENCE. [§ 338. right of way over certain lots of land was described as laid out bj"^ a civil engineer named, in accordance with a map attached to tlie deed, and the map did not identify the location apart from the survey on the ground, explanatory evidence was admitted to prove that the map was made from an actual survey, and to show the location of the way as surveyed upon the ground.^ Where a description applies to two or more parcels equally well, there is a latent ambiguity which may be explained by parol.^ A latent ambiguity occurs when the deed or other instrument appears sufficiently certain, free from ambiguity, but the ambi- guity is produced by something extrinsic, or some collateral matter out of the instrument. Where a description is apparently clear and complete, yet when it is applied to the land it appears that the words are applicable to different things, and tliere is nothing in the deed to show which is meant, extrinsic evidence is admis- sible to show the true meaning of the words used.^ " The iden- St. Eep. 861. Michigan: Heffelman v. Otsego Water Power Co. 78 Mich. 121, 4.3 X. W. Rep. 1096, 44 N. W. Rep. 1151. Mississippi: Price f. Fer^'uson, 66 Miss. 404 ; Brown r. Guice, 46 Miss. 299. Mis- souri : Wolfe V. Dyer, 95 Mo. 545, 8 S. W. Rep. 551 ; Charles r. Patch, 87 Mo. 450. Nebraska: Hanlon v. Union Pac. Ry. Co. 40 Neb. 52, 58 N. W. Rep. 590. New Jer- sey : Scott V. Yard, 46 N. J. Eq. 79, 18 Atl. Rep. 359; Dunn v. En-^lish, 23 N. J. L. 126; Smith v. Negbauer, 42 N. J. L. 305 ; Opdyke v. Stepheus, 28 N. J. L. 83. New Mexico : Gentile v. Crossan (N. M.), 38 Pac. Rep. 247. New York : Thayer v. Finton, 108 N. Y. 394, 15 N. E. Rep. 615 ; Weeks v. Martin, 10 N. Y. Supp. 656 ; Clark V. Wethey, 19 Wend. 320; Vos- burfrh r. Teator, 32 N. Y. 561 ; Wood v. Lafayette, 46 N. Y. 484 ; Stout v. Wood- ward, 5 Hun, 340, affirmed 71 N. Y. 590; Douahiic V. Case, 61 N. Y. 631 ; Case v. Dexter, 106 N. Y. 548, 13 N. E. Rep. 449 ; Harris v. Oakley, 130 N. Y. 1, 28 N. E. Rep. 530, reversing 7 N. Y. Supp. 232. North Carolina Allen v. Sallinger, 108 N. C. 159, 12 S. E. Rep. 896; Radford V. Edwards, 88 N. C. 347. Oregon : Hick- lin V. McClear, 19 Oreg. 508, 22 Pac. Rep. 10.57; Kanne v. Otty, 25 Oreg. 531, 36 Pac. Rep. 5'57. Pennsylvania : Hughes v. Westmoreland Coal Co. 104 Pa. St. 207; Palmer v. Farrell, 129 Pa. St. 162, 18 Atl. Rep. 761. Texas : Kingston v. Pick- ens, 46 Tex. 99; Coffey v. Hendricks, 66 Tex. 676, 2 S. W. Rej). 47 ; Norris V. Hunt, 51 Tex. 609 ; Clark v. Gregory (Tex. Civ. App.), 26 S. W. Rep. 244 ; Liu- ney v. Wood, 66 Tex. 22, 17 So. Rep. 244 ; Dwyre ;•. Speer (Tex. Civ. App.), 27 S. W. Rep. 585. Vermont : Patch v. Keeler, 28 Vt. 332; Hull v. Fuller, 7 Vt. 100; Clary v. McGlynn, 46 Vt. 347 ; Pingry v. Watkins, 17 Vt. 379; Rugg v. Ward, 64 Vt. 402, 23 Atl. Rep. 726. Wisconsin: Lego V. Medley, 79 Wis. 211, 48 N. W. Rep. 375 ; Lyman i\ Babcock, 40 Wis. 503. See, also, Ganson v. Madigan, 15 Wi.s. 144, 82 Am. Dec. 659; Prentiss v. Brewer, 1 7 Wis. 635 ; Rockwell v. Insur- ance Co. 21 Wis. 548 ; and Sawyer r. In- surance Co. 37 Wis. 503. Washington : Squire r. Greer, 2 Wash. 209, 20 Pac. Rep. 222. 1 Thompson v. Motor Road Co. 82 Cal. 497, 23 Pac. Rep. 130. 2 Clark V. Powers, 45 HI. 283. " '^ Ambiguitas patens," say i^ Lord Ba- con, " is that which appears to be am- biguous upon the deed or instrument] fl8?. § ooS.] DESCRIPTION AND HOUNDAKIKS. tical niominiont or boundary referred to in a deed is always a subjoot of parol evidence, and, when disputed, it is always left to tlh' jury to say what was the actual monument intended. Thus there may be two trees of a similar species and with similar marks ; two similar stakes not far distant from each other ; or two rivers of the same name ; and whicli was intended by the deed would be settled by parol evidence, on the ground Ihat it is a latent ambiguity." ^ A boundaiy line was described as drawn from a house named, and reference was made to a map for a more particular description. On the map referred to the line appeared to be drawn from tlui northeast corner of the house. It appeared in evidence that the position of the house was incorrectly repre- sented upon tlie map. It was held, however, that the trial judge was bound to look to the map as forming part of the deed, and to tell the jur}^ that the line was to be drawn as marked on the map.^ Intens is that which seemeth certain and without ambiguity, for iiuythinj^ that ap- peareth upon the deed or instrument ; hut there is some collateral matter out of the deed that breedeth the ambiguity." Ba- con's Tracts; Patch v. White, 117 U. S. 210, 6 Sup. Ct. Rep. 617, 710 ; Holcomb V. Mooney, 13 Oreg. 503, 507, 11 Pac. Rep. 274; Fisher i\ Quackenbush, 83 111.310; Kingston v. Pickins, 46 Tex. 99 ; Master- son V. Todd, 6 Tex. Civ. App. 131, 24 S. W. Rep. 682 ; Brooks v. Britt, 4 Dev. L. 481 ; Thornell v. Brockton, 141 Maj^s. 151, 6 N. E. Rep. 74. In Minor v. Powers (Tex.), 24 S. W. Rep. 710, Fisher, C. J., said : " The in- strument itself may, not disclose any uu- CL-rtainty or doubt, and may upon its face give a perfect description ; but in an at- tempt to apply it, when it is found that the descri[;tion will apply to two or more objects or subjects, or is a misdei^cription of the ol)ject or subject intended by the conveyance, a latent ambiguity results, and evidence is admissible to explain and remove it." In Gentile r, Crossan (N. M.), 38 Pac. Rep. 247, a deed described a boundary as follows : " Y del camino a las lomas ; " meaning, " And from the road to [las ?84 lomas] the hills." There was strong evi- dence that " las lomas " signified, in that viciuity, a certain kind <>f hills. It was held that the use of the term constituted a latent ambiguity which could be ex- pkiined by parol evidence. 1 Claremont v. Carlton, 2 N. H. 369, 9 Am. Dec. 88, per Woodbury, J. To like effect, see Coe v. Rittcr, 86 Mo. 277 ; Thacker v. Howeil (Ky.), 26 S. W. Rep. 719 ; Dorr v. School Di.strict, 40 Ark. 237 ; Greeley v. Weaver (Me.), 13 Atl. Rep. 575; Hoar v. Goulding, 116 Mass. 132. ■^ Lyle V. Richards, 1 L. R. H. L. 222, 241. Lord Westbury dissented, on the ground that, it being ascertained that the house itself was incorrectly laid down on the map, it was im])ossible to know by an examination of the deeds, or by their coiistvuction alone, from what corner of the house the boundary line was to be drawn ; that consequently 4here was a latent ambiguity, which Was to be deter- mined Ity evidence, and was not dei)endcnt on construction. He said : " But the ques- tion here is not of the interpretation of the deed itself, nor even of the construc- tion of the description of the parcels, but of ihe inference to be derived from a map as to the relative position of two objects PAROL EVIDENCE. [§ 339. Wliere there is a reservation or exception of one acre of land, from the southwest corner of the hmd described, "together with the buildings thereon," and the grantor remained in possession of all the buildings, he could show that one square acre in the south- east corner of the land would not include all the buildings re- served by him, and that it was intended to reserve an acre of such shape as would include them.^ 339. Parol evidence is admissible to apply the description to the parcel intended to be conveyed, when the terms used in the deed leave it uncertain what property was intended to be embraced in it.'^ Such evidence cannot be used to enlarge the scope of the descriptive words, but only to fit them to the land intended to be described.^ But the deed must itself point to the source from which evidence aliunde to make the description com- laid down as adjoin iug each other, where one is proved to be erroneously laid down. As soon as that proof was admitted, it became obvious that the true position in nature of the tiling erroneously laid down, and the true relative position of the ad- joining objects, must both be ascertained by external evidence." The dissenting opinion seems to be the better opinion. 1 Lego V. Medley, 79 Wis. 211, 48 N. W. Rep. 375. 2 Cox V. Hart, 145 U. S. 376, 12 Sup. Ct. Rep. 962 ; Brown v. Cranberry Iron Co. 59 Fed. Rep. 434, 437. California : Reamer v. Nesmith, 34 Cal. 624 ; Thomp- son V. Southern Cal. M. R. Co. 82 Cal. 497, 23 Pac. Rep. 130. Colorado: Mur- ray V. Hobson, 10 Colo. 66, 13 Pac. Rep. 921. Florida: Andreu v. Watkins, 26 Fla. 390, 7 So. Rep. 876. Georgia : Gross Lumber Co. v. Coody (Ga.), 21 S. E. Rep. 217. Illinois: Cunningham c. Thornton, 28 111. App. 58; Mason v. Merrill, 129 111. .503, 21 N. E. Rep. 799 ; :\Iycrs v. Ladd, 26 111. 415; Smith v. Crawford, 81 111. 296. Iowa : Judd v. Anderson, 51 Iowa, 346, 1 N. W. Rep. 677. Massachu- setts : AVatcriiiau v. Johnson, 13 Pick. 261. Minnesota: Tiirnbull ?;. Schroeder, 29 Minn. 49, 11 N. W. Rep. 147. Missis- sippi: Lochle V. Austin, 69 Miss. 271, 1." So. Rep. 838. Missouri: Charles r. Patch, -87 Mo. 450; Bray v. Adams, 114 .Mo. 486, 21 S. W. Rep. 853 ; Skinker v. Haags- ma, 99 Mo. 208. North Carolina : Rob- bins V. Harris, 96 N. C. 557, 2 So. Rep. 70; Wellons v. Jordan, 83 N. C. 371; Walker v. Moses, 113 N. C. 527, 18 S. E. Rep._ 339. Oregon : Meier v. Kelly, 20 Oreg. 86, 25 Pac. Rep. 73 ; Raymond v. Coffey, 5 Oreg. 132. Pennsylvania : Brown V. Willey, 42 Pa. St. 205 ; Peart r. Brice, 152 Pa. St. 277, 25 All. Rep. 537 ; Fergu- son V. Staver, 33 Pa. St. 411 ; Smith's Ap- peal, 69 Pa. St. 474. Texas : McWhirter V. Allen, 1 Tex. Civ. App. 649, 20 S. W. Rep. 1007 ; Cox v. Rust (Tex. Civ. App.), 29 S. W. Rep. 807 ; Giddings v. Day, 84 Tex. 605, 19 S. W. Rep. 682; Kingston V. Pickins, 46 Tex. 99 ; Wilson v. Smith, 50 Tex. 365; Brown v. Chambers, 63 Tex. 131 ; Koepsel v. Allen, 68 Tex. 446, 4 S. W. Rep. 856 ; Ovcrand v. Menczer, 83 Tex. 122, 18 S. W. Rep. 301 ; Watson V. Baker, 71 Tex. 739, 9 S. W. Rep. 867 ; Cook V. Oliver, 83 Tex. 559, 19 S. W. Rej). 161 ; Gresham v. Cliambers, 80 Tex. 544, 16 S. W. Rep. 326 ; Flanagan v. Bogtrc-s, 46 Tex. 330. Vermont : Wead v. St. Johns- bury, &c. R. Co. 64 Vt. 52, 24 All. Rej). 361. Virginia: Hunter y. Hume, 88 Va. 24, 13 S. IC. Rep. 305. 3 Harrison v. Halm, 95 N. C. 28 ; Blow V. Vaughan, 105 N. C. 198, 10 S. E. Rep. 891 ; Stiles V. Estabrooks, 66 Vt. 535, 29 All. Rep. 961. 285 § 340.] DESCRIPTION AND BOUNDARIES. plete is to be sought.' Tliis may sometimes be done by the use of a single word, as for instance where the hinguage used is iny farm, or )nij homestead.- The question of the appHcation of a description to its proper subject-matter is for the jury, wlio may have tlic aid of all com- petent extrinsic evitlence.-^ The question of the identity of the loi-ation is always one of fact for the jury.* The construction of the terms used in a deed, siside from extra- neous evidence, is for the eourt.^ It is, however, the province of the jury to determine the boundaries in controversy from all the evidence, including the description in the deed.*^ 340. Parol evidence is admissible to show the position of monuments and boundary marks mentioned in a deed," or fixed by the parties at the time or soon afterwards. Where land has been actually surveyed, and stakes set at the corners, it is competent to })i'0V(» bv parol their location, and, if lost or destroyed, the 1 Blow V. Vaughiui, 105 N. C. 198, 10 S. E. Rep. 891 ; Massey v. Belisle, 2 Ired. 170; Coker v. Roberts, 71 Tex. 597, 9 S. W. Rep. 665 ; Black v. Pratt Coal & C. Co. 85 Ala. 504, 5 So. Rep. 89 ; Gaston V. Weir, 84 Ala. 19-3, 4 So. Rep. 258; Norris v. Hunt, 51 Tex. 609 ; Cleveland V. Sims, 69 Tex. 153, 6 S. W. Rep. 634 ; Bitner v. Land Co. 67 Tex. 341, 3 S. W. Rep. 301. ^ Blow V. Vaughan, 105 N. C. 198, 10 S. E. Rep. 891 ; Murdock v. Anderson, 4 Jones Eq. 77 ; Carson v. Ray, 7 Jones, 609, 78 Am. Dec. 267 ; Brown v. Coble, 76 N. C. 391. But in Perry v. Scott, 109 N. C. 374, 14 S. E. Rep. 294, it is declared that the necessity for the presence of the word " my " or " my lands " in such descrip- tion in conveyances by the owner, as in- •licated in several of the older cases, seems to b« no longer recf)gnized, and their im- materiality is distinctly declared in Far- mer V. Batts, 83 N. C. 387, where Smith, C. J., says that " the assertion of title in the vendor is not less unequivocally involved in the very act of disposing of it as his pioi)erty." It would, indeed, seem but charitable to a^^sume that he who undertakes to convey property in- 286 tends to dispose of what he claims to be his own. 3 Thompson on Trials, § 1461 ; Stei- gleder t;. Marshall, 159 Pa. St 77, 28 Atl. Rep. 240; King'-ton ;;. Pickens, 46 Tex. 99 ; Curtis r. Aarouson, 49 N. J. L. 68, 7 Atl. Rep. 886. 4 Steigledcr v. Marshall, 159 Pa. St. 77, 28 Atl. Rep. 240 ; Keizer r. Berm -r (Pa.), 1.3 Atl. Rep. 909; Oliver v. Brown, 80 Me. 542, 15 Atl. Rep. 599. 5 Cox V. Hart, 145 U. S. 376, 12 Sup. Ct. Rep. 962; Curtis v. Aaronson, 49 N. J. L. 68, 7 Atl. Rep. 88fi ; Robinson v. Jones, 2 Tex. Civ. App. 316, 22 S \V. Rep. 15 ; Wilson v. Smith, 50 Tex. 365, 369. c Cochran v. Smith, 73 Ilun, 597, 26 N. Y. Supp. 103. " Xoonan v. Lee, 2 Black, 499 ; Bagley I'. Morrill, 46 Vt. 94 ; Robin.son v. Kime, 70 N. Y. 147 ; Tyler v. Fickett, 73 Me. 410; Linscott c. Fcrnald, 5 Me. 496; Strickland v. Draughan, 88 N. C. 315; Claremont v. Carlton, 2 N. H. 369, 9 Am. Dec. 88; Benton v. ilorsley, 71 Ga. 619; Borer v. Lange, 44 Minn. 281, 46 N. "W. Rep. 358 ; Anderson v. Richardson, 92 Cal. 623, 28 Pac. Rep. 679 ; Minor v. Kii klaud (Tex. Civ. Ai)]).), 20 S. W. Rep. 9.32. PAROL EVIDENCE, [§ 340. places where they were set.^ But if such corners and monuments can be determined by the field-notes of the govern a: ent survey of the land, tl)ey are not so unknown or uncertain as to allow the admi.ssion of parol evidence to locate them.'-^ It' the means are at hand to establish the line, and a competent surveyor could locate it, it is not uncertain in a legal sense. ^ Resoi-t must often be had to the existing circumstances, and to the construction put upon the description by the |)arties interested, to ascertain where on the face of the earth the moiuinients and lines described really are.^ "It is every day's experience in land trials, to establish by evidence the identity of both natural and artificial monuments called for in surveys. If the beginning point be at the mouth of a. brook or creek, where it empties into a river, evidence may be given, nay, must generally be given, to establish the identity of the brook; and, when once established to the satisfaction of the jury, it has all the effect of any natural or artificial object called for in the survey, and will control courses and distances."^ The lines and courses in a deed may be established upon the land by showing the survey actually made at the instance of the parties to the deed with a view to its execution.^ When the description is by a surve}^ however full and precise it may be, resort must be had to extrinsic evidence to identify it on the ground. If by such evidence the land described can be found and identified with reasonable certainty, the description is sufficient.'^ Where the boundaries are may be proved by any kind of evi- dence which is admissible to prove any fact. As evidence which may tend to establish this fart, th(^ jury may consider, among other things, actual occupation, ancient reputation, the admission of a party against his interest, and the agreement of the parties 1 Borer v. Lange, 44 Minn. 281,46 N. Wing v. Bnrgis, 13 Me. Ill ; Wnlsh v. W. Kep. 358 ; Turnbull r. Schroeder, 29 Hill, 38 Cal. 481; Wills j;. Levcrich, 20 Minn. 49, 11 N. W. Kep. 147; Hoolen Oreg. 168, 25 Pac. Kep. 398. V. Comerford, 152 Mass. 591, 26 N. K. •''' Ayers ?;. Watson, 113 U. S. 594, 605, Kep. 407. 5 S. Ct. Kep. 641, per Bradley, J. 2 Pickett i;. Nelson, 79 Wis. 9, 47 N. '■ Euliss v. MeAdams, 108 N. C. .507,13 W. Kej). 436. S. E. Rep. 162 ; Koberts v. Preston, 100 ^ Ilartung v. Witte, 59 Wis. 285, 18 N. C. 243, 6 S. K. Kep. 574; Kronenber- N. W. l{cp. 175. ger r. Iloffner, 44 Mo. 185. * Stone );. Clark, 1 Met. 378, 35 Ain. ' Doutliit ??. Kobin.son, 55 Tex. 69. Dec. 370; Tyler v. Fickett, 73 Me. 410; 287 ^ 3U.] DKSCUirilOX AND BOUXl)Ai;li:S. as to the actual location of tlu' houiularv.' Kel'cieiice may also be hail to prior tie. ds conveyini;' the same hiiuL- 341. What are boundaries is a question of law for the court, but where tlu' boundaries are u|)oii the ground is a ques- tion of laet to be determined by the evidence.'^ It is for the jury to lit the boundaries describetl to the land. Where the terms used in the deseription of a deed are unambiguous, its interpre- tation is for the C(jurt ; but wliere the terms themsi'lves are am- biguous, or their presumptive meaning is rebutted by eompetent proof aliunde, the question of the meaning of the deed is for the jury.^ Wliere a government corner between adjoining landowners has been obliterated, the exact location of the corner may be de- termined by the jury from the evidence.^ Where tlie monuments called for by a survey have disappeared, but there is evidence of their existence and location at a former time, it is a question for the jury whether the line was indicated by monuments.*^ Where the true location of a government corner is in doubt, evidence is admissible to show where the original marks of such corner were years before, when they were very plain and distinct, and were generally regarded and recognized as indicating the original government corner ; and to that end it may be shown that permanent improvements, as lines of trees, roads, Imildings public and {)rivate, were, when such indications were plain and visible, located with reference thereto as the true government corner, by persons who had no other interest than to locate them correetlyj 1 Joues V. Pashby, 62 Mich. 614, 29 N. Carter, 106 N. C. .')34, 11 S. E. Rep. 262; W. Rep. 374; Mulford v. Le Franc, 26 Jones v. Bunker, 83 N. C. 324; Maisliall Cal. 88. '•. Fisher, 1 Jones, 111 ; Andreii v. Wat- 2 Beaumont v. Field, I B. & ALL 247 ; kins, 26 Fla. 390, 7 So. Rep. 876. McAfee v. Arline, 83 Ga. 045, 10 S. E. •» Meeks v. Willard (N. J. L.), 29 Atl. Rep. 441; Daily v. Litchfield, 10 Mich. Rep. 318. 29 ; Cronin v. Gore, 38 Mich. .'581 ; Fahey ^ McKey v. Hyde Park, 134 U. S. 84, V. Marsh, 40 Mich. 236; Weeks i\ Mar- 10 Sup. Ct. Rep. .512; Kittell w. Jenssen, tin, 10 N. Y. Supp. 6.56 ; Cannon i'. Em- 37 Neb. 685, 5(i N. \V. Rep. 487 ; Bushey mans, 44 Minu. 294, 46 N. W. Rep. 356. v. South Mountain M. & I. Co. 136 Pa. » Lyle V. IJichards, L. R. H. L. 222; St. 541, 20 Atl. Rep. 549. Scull V. Priiden, 92 N. C. 168 ; Abbott v. " Seneca Nation v. Hujiaboom, 9 N. Y. Abbott, 51 Me. 575, 581 ; Farley v. Des- Supp. 699. affirmed 132 N. Y. 492, 30 N. londe, 5S Tex. 588; Scott v. Yard, 46 N. E. Rep. 983. J, Eq. 79, 18 Atl. Rep. 359 ; Bonaparte f. " Arneson v. Spawu (S. T>.), 49 N. \V. 288 PAROL EVIDENCE. [§§ 342, 343. 342. The office of extrinsic evidence as applied to the de- scription of a parcel is to explain a latent ambiguity, or to point ont the property described on tlie ground. Such evidence must not contradict the deed, or make a description of otlier land than that described in tlie deed.^ . It cannot be used to make the deed convey Lmd not embraced in the words used to describe the sub- ject-niattcr of the deed, but only to ascertain the intention of the parties as expressed by such words.^ The test of the admi.-siiility of such evidence is involved in the inquiry whether it tends to explain some descriptive word or expression of doubtful import contained in the deed, so that the description, aided by such ex- planation, identifies the land conveyed.'^ 343. There must be something in the deed to suggest the possibility of locating the land by the use of competent ex- planatory evidence,^ and there are cases which seem to go to the extreme limit in this direction. Thus a reference to the land as being " the interest in two shares, adjoining the lands " of persons named, belonging to tlie vendor, was held sufficient to suppoit explanator}' evidence tliat there was a tract of land which fi;ted tlie rest of the description, in which it was known that the ven- dor claimed two shares ; and, moreover, that the land had been more partieulai-ly described in a partition proceeding." Evidence aliunde is pointed to by a reference to another deed for the description, or some part of the desciiption ;^ or by a description of the land as being the same inherited by the grantor from his father, or devised to him by some other person ; or as Rep. 1066 ; Baker v. McArthur, .54 Mich. 16; Keamer v. Nesmith, 34 Cal. 624 ; Mi- 139, 19 N. W. Rep. 923 ; Coy r. Millei-, nor v. Powers (Tex.), 24 S. W. Rep. 710; 31 Neb. 348, 47 N. W. Rep. 1046 ; Jacobs Kingston v. Pickins, 46 Tex. 99. V. Moseley, 91 Mo. 457,4 S. W. Rep. 135 ; * Farmer v. Baits, 83 N. C. 387 ; Dca- Major V. Watson, 73 Mo. 661; Liberty ver v. Jones (N. C), 19 S. E. Rep. 6.S7; V. Burns, 114 Mo. 426, 19 S. W. Rep. Kea v. Robeson, 5 Ired. Eq. 373 ; Mms- 1107. terson v. Todd, 6 Tex. Civ. App. 131, 24 1 Ilannon v. Hilliard, 101 Ind. 310; S. W. Rep. 682. Jennings r. Biizeadine, 44 Mo. 332 ; Fratt ^ Farmers. Batts, 83 N. C. 387. For V.Woodward, 32 Cul. 219, 91 Am. Dec. other extrinsic cases, see Edwards y. Bow- 573 ; Fisher v. Quackenbush, 83 111. 310. den, 99 N. C. 80 ; McGhiwhorn v. Worlh- 2 Coleman v. Manhattan Beach Co. 94 inyton, 98 N. C. 199. N. Y. 229. 6 Wharton v. Eborn, 88 N. C. 344 ; 8 Blow V. Vaughan, 105 N. C. 198, 10 Cleveland v. Sims, 69 Tex. 153, 6 S. W. S. E Hep. 891 ; Massey v. Belisle, 2 Ired. Rep. 634; Gilder v. Brenham, 67 Tex. 170; McCormick v. Monroe, 1 Jones, 13, 345, 3 S. W. Hep. 309. VOL. I. 289 ^^ 44-346.] DESCRIPTION AND BOUNDAKIES. liaviiij; t'oruu'rly been in the possession of ii person named ; ^ or as (.'allt'J by a distinct name, or described as known by that name.^ 341. There must be a sufficient description in the deed to afford a basis for admitting parol evidence to identity the hind. A description cannot be made by parol evidence.^ Thus a de- sciiplion of hmd as consisting of fifty acres situate on the head- waters of a creek named cannot be aided by parol, because there is nothing in the deed by which tlie location on the creek can be determined.^ For the same reason, a deed of a hundred and fifty acres of land " lying on Watery Branch," in a county named, is void.^ A description of land as " all my interest in a piece of land adjoining the lands of A and B and others," is too vague to admit of extrinsic evidence to fit the description to the land.^ Whether such a description is too vague to admit of extrinsic evidence, when aided by a reference to the number of acres in the parcel, seems a little uncertain.' 345. The particular terms used to describe the property may be defined by parol evidence. The term " messuage " properly includes a dwelling-house and the land usually held with it. Therefore, where land is described as a "messuage" in the occupation of a person named, oral evidence is admissible to show that a garden adjoining had always been occupied with the messuage and passed by the deed.^ A "farm" may be defined b}' parol evidence showing what lands, house, and buildings have been used and known as consti- tuting the farm. 346. Land described as " my residence," " my homestead," " my place," " my lot," may be identified by pai*ol evidence if necessary.^ Land is sufficiently described as situated in a county i Rrowa v. Coble, 76 N. C. 391. ^ Dickens v. Barnes, 79 N. C. 490 ; Far- - Ciise V. Dexter, 106 N. Y. 548. mer v. Batts, 83 N. C. 387. The decisions ^ Dickens v. Barnes, 79 N. C. 490; in these cases do not seem to be quite in Walker v. Moses, 113 N. C. 527, 18 S. E. harmony. Rep. 339 ; Farmer v. Batts, 83 N. C. 387 ; « poe v. Webster, 12 A. & E. 442. Blow V. Vaughan, 105 N. C. 198, 10 S. E. ^ Hodf,'es v. Rowing, 58 Conn. 12, 18 Rep 891 ; Bowers v. Andrews?, 52 Miss. Atl. Rep. 979 ; Andrews v. Pearson, 68 596. See § 323. Me. 19 ; Euliss v. McAdams, 108 N. C. * Radford v. Edwards, 88 N. C. 347. .507, 13 S. E. Rep. 162 ; Carbon v. Ray, * Capps V. Holt, 5 .Jones Eq. 153. See, 7 Jones, 609; Miudock v. Anderson, 4 also, Hinchey v. Nichols, 72 N. C. 66. Jones Eq. 77 ; Lente v. Clark, 22 Fla. 6 Harrell i;. Butler, 92 N. C 20. 515, 1 So. Rep. 149; Lick v. O'Donnell, 290 PAROL EVIDENCE. [§ 347. named, containing a certain number of acres, and being the land on which I now reside.^ Or all my land in a certain town, county, or State: 2 or all my lands wherever situated.^ If the land be described as the land inherited by tlie grantor from his parents or others named, evidence to identify the land so inherited is ad- missible.* Parol evidence is admissible to identify land described by a name applied by the parties to the property, though not so known by the entire neighborhood.'^ 347. If the property be described as a house and lot in a street named, evidence is admissible that the vendor or grantor had only one hnuse and lot on that street, and that the parties had been in treaty for the purchase and sale of such house and lot. Such evidence identifies the property, and applies the de- scription to the property intended.*^ " In a deed the words of description are, of course, intended to relate to an estate owned by the grantor. And, in our opinion, this is also the presump- tion in construing a contract for a future conveyance. If the party who enters into the agreement in fact owns a parcel answer- ing to the description, and only one such, that must be regarded as the one to which the description refers. With the aid of this presumption, the words ' a house and lot,' on a street where the party who uses the language owns only one estate, are as definite and precise as the words •• my house and lot ' would be, — a descrip- tion the sufficiency of which has been placed beyond all doubt by very numerous authorities."'' A description of a town lot by its length and breadth, and also by the improvements upon it, is sufficient when it is shown that no other lot in the town has improvements of a like character. § 3 C.il. .59, 58 Am. Dec. 383; McAfee v. ^ Dougherty r. Cliesnutt, 86 Tenu. 1, Arline, 83 Ga 64.'), 10 S. E. Eep. 441 ; 5 S. W. Rep. 444 ; Euliss v. McAdams, Tethcrow v. Anderson, 63 Mo. 96; Jack- 108 N. C. 507, 13 S. E. Kep. 162; lien- son r. DeLancey, 4 Cow. 427, 11 Johns. Icy v. Wilson, 81 N. C. 405; Smith v. 365, 13 Johns. 537; Pond v. Bergh, 10 Low, 2 Led. 457. Paige, 140, 156; Campbell v. Morgan, 68 ^ Hurley i'. Brown, 98 Mass. 545, 96 Hun, 490, 22 N. Y. Supp. 1001. Am. Dec. 671 ; Mead v. Parisscssion according to the line, they and their privies arc cst(>p[)ed from afterwards disputing it. The estoppel arises from the act of the })artics in taking possessicm, and occupying their respective tracts to the line thus agreed upon and deter- mined." ^ The courts, on the contrary, encourage such settlements as a means of suppressing litigation.^ To make the agreement effective, however, by way of estoppel, it is necessary that the line established by agreement should be followed by possession according to that line.^ Parol evidence is admissible to show the location of a boun- dary line established by agreement between the adjoining land- owners.* In case one of the parties at once repudiated the line as fixed, and retained possession of the land in controversy, and there has been no possession acquired or taken by the other according to the line claimed to have been established by the agreement of Cal. 619, 626. Delaware: Liudsay v. sylvania: Perkins v. Gay, .S Serg. & R. Springer, 4 Harr. 547, 549, 550. Idaho : Idaho Land Co. v. Parsons, 2 Ida. 1191, .31 Pac. Kep. 791. Illinois: Mnllaney j^. Duffy, 145 111. .559, 33 N. E. Rep. 750; Quick V. Nitsoholm, 139 111. 251, 28 N. E. Rep. 926; Fisher v. Benuehoff, 121 111. 426, 13 N. E. Rep. 1,50; Bloomington v. Cemetery, 126 111. 221, 18 N. E. Rep. 298; Crowell V. Maughs, 7 111. 419. Indiana: Main v. Killinger, 90 Ind. 165 ; Kiiisey v. Satterthwaite, 88 Ind. 342. Kentucky: Young V. Wooletr. (Ivy.), 29 S. W. Rep. 879. Maine : Pritchiird v. Young, 74 Me. 419. Massachusetts : Kellogg v. Smith, 7 Cush. 375, 379. New Hampshire : Saw- very. Fellows, 6 N. II. 107, 25 Am. Dec. 452 ; Eaton v. Rice, 8 N. H. 378 ; Gray v. Barry, 9 N. H. 473 ; Prescott v. Haw- kins, 12 N. II. 19; Orr r. Hadley, 36 N. II. 575; Dudley v. Elkins, 39 N. H. 78; Bartktt v. Young, 63 N. H. 265. New York: Jackson v. Dysling, 2 Caines, 198, 201 ; Jackson v. Ogden, 7 Johns. 238, 245; Kip v. Norton, 12 Wend. 127, 130, 27 Am. Dec. 120; Laverty v. Moore, 32 Barb. 347. Ohio: Hills v. Ltidwig, 46 Ohio St. 373, 24 N. E. Rep. 596. Penn- 298 327, .331, 7 Am. Dec. 653. Texas: Levy V. Maddux, 81 Tex. 210, 16 S. W. Rep. 877; Eddie v. Tinuin (Tex. Civ. App.), 26 S. W. Rep. 732; Harn i;. Smith, 79 Tex. 310, 15 S. W. Rep. 240; Harrell v. Houston, 66 Tex. 278 ; Coleman v. Smith, 55 Tex. 254; Houston v. Sneed, 15 Tex. 307. West Virginia : Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. Rep. 880, 885 ; Teass v. St. Albans, 38 W. Va. 1, 17 S. E. Rep. 400. 1 Berghoefer v. Frazier, 150 111. 577, 37 N. E. Rep. 914. 2 McArthur v. Henry, 35 Tex. 801 ; Houston V. Matthews, 1 Yerg. 116 ; Fisher V. Bennehoff, 121 111. 426, 13 N. E. Rep. 150. 3 Berghoefer ;•. Frazier, 150111. 577, 37 N. E. Rep. 914; Yates (,•. Shaw, 24 111. 367 ; Bauer v. Gottmanhausen, 65 III. 490 ; Kerr v. Hitt, 75 111. 51 ; Cutler v. Ciilli- son, 72 111. 113; Fisher v. Bennelioff, 121 111. 426, 13 N. E. Rep. 1.50; Bloomington r. Cemetery, 126 111. 221, 18 N. E. Rep. 298. ■* Sheetz i-. Sweeney, 136 III. 336, 26 N. E. Rep. 648. BOUNDARY LINES BY AGREEMENT. [§ B59. the parties, it is clear that there has been no practical location of the line by which tlie parties are estopjied.^ 359. An agreement settling a disputed boundary is a final- ity, and cannot be disturbed, though the pai'ties afterwards learn that the true line could have been found, or the parties were mistaken as to the true line.^ After a disputed boundai'y has been established by agreement, a subsequent conveyance by the parties to the agreement and their privies, by the same description as that under which the title was acquired and possession held prior to the agreement, will pass the title according to the agreed boundary.'^ If the agreed line is marked by monuments, subse- quent purchasers would be bound to take notice of them for this reason ; * but if the agreement is susceptible of clear proof, it is 1 Berghoefer v. Frazier, 150 111. 577, 37 N. E. Rep. 914. - California : Tructt v. Adams, 66 Cal. 218; Sneed r. Osborn, 25 Cal. 619; Sil- varer v. Hansen, 77 Cal. 579, 20 Pac. Rep. 136; Cavanaugh y. Jackson, 91 Cal. 580, 27 Pac. Rep. 931 ; White v. Spreckels, 75 Cal. 610, 17 Pac. Rep. 715. Idaho: Idaho Land Co. v. Parsons, 2 Ida. 1191, 31 Pac. Rep. 791. Illinois : Yates v. Shaw, 24 111. 367 ; Fisher v. Bennehoft", 121 111. 426, 13 N. E. Rep. 150 ; Bauer v. Gottmanhau- sen, 65 111. 499 ; McNamara v. Seaton, 82 111 498; Cutler v. Callison, 72 111. 113. Indiana: Horton v. Brown, 130 Ind. 113, 29 N. E. Rep. 414; Cleveland i-. Oben- chain, 107 Ind. 591 ; Pitcher v. Dove, 99 Ind. 175. Kentucky: Grigsby y. Combs (Ky.), 21 S. \V. Rep. 37. Maine : Esty V. Baker, 50 Me. 325, 79 Am. Dec. 616. Michigan: Siniih n. Hamilton, 20 Mich. 433, 4 Am. Rep. 398 ; .Tones v. Pashby, 67 Mich. 459, 35 N. W. Rep. 1.52. Mis- souri : Major v. Rice, 57 Mo. 384 ; Atchi- son V. Pease, 96 Mu. 566, 10 S. W. Rep. 159 ; Schad v. Sharp, 95 Mo. 573, 8 S. W. Rep. 849. New Hampshire : Thompson V. Major, 58 N. H. 242. Tiie case of Saw- yer V. Fellows, 6 N. H. 107, is in its terms niiliriiited in iis application to agreements fixing the boundary line between adjacent owners ; but it should he limited to cases of dispiiteii or uncertain boundaries. It was doubtless intended to be so iimiied because the cases cited by the court in support of the doctrine announced are so limited. See Bartlctt r. Young, 63 N. 11.265. New York: Vosburgh s,-. Yeaton, 32 N. Y. 561 ; McCormick v. Barnum, 10 Wend. 104. Ohio: Avery v. Baum, Wright, 576 ; Walker v. Devlin, 2 Ohio St. 593; Bobo v. Richmond, 25 Ohio St. 115 ; Hills V. Ludwig, 46 Ohio St. 373, 24 N. E. Rep. 596. In this case Bradley, J., said : " This view is entirely consistent with the principle that where adjoining proprietors, in attempting to find the true line between them, by mistake fix upon an incorrect one, they may repudiate the spu- I'ious line ... at any time before the stat- ute of limitation has run." Texas : Cooper V. Austin, 58 Tex. 494 ; Coleman v. Smith, 55 Tex. 254; Levy r. Maddux, 81 Tex. 210, 16 S. W. Rep. 877 ; Houston v. Sneed, 15 Tex. 307 ; Harrell v. Houston, 66 Tex. 278, 17 S. W. Rep. 731 ; Liuney V. Wood, 66 Tex. 22, 17 S. W. Rej). 244. Virginia : Voiglit v. Raby ( Va.), 20 S. E. Rep. 8124. West Virginia : Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. Rep. 880. « Smith V. Catlin Land Co. 117 Mo. 438, 22 S. W. Rep. 1083 ; Smith v. Mc- Conkle, 105 Mo. 135, 16 S. W. Rep. 602 ; Sawyer v. Fellows, 6 N. H. 107, 25 Am. Dec. 452 ; Dudley v. Elkins, 39 N. II. 78. * Makepeace v. Bancroft, 12 Mass. 4(;9 ; Davis V. Kainsford, 17 Mass. 207 ; Sawyer 299 ^§ oOO, olil.J DKSCKirTION AND HOUNDARIKS. undoubtedly binding u[)on subsoquont j)ureliasers, though there are no visible nioiiuments of the agreed line.^ 360. A division line between adjoining owners established by the award of referees, under a written agreement entered into by them for the jmrpose, is binding u{)on them where pos- session of the land is taken and held by them respectively under the award.'-^ An award on an oral submission as to the division line between adjoining proprietors is not conclusive between them unless fol- lowed by an acquiescence for a time sufficient to give title by pre- scription.-'^ Fence-viewers having no official authority to establish a dis- puted boundary line, their establishment of one is merely an award on an oral submission, or a parol contract between the parties.'^ A boundary line fixed by a surveyor employed by various prop- erty owners is not binding upon an owner who was not a party to the surveying, and who never acquiesced in the line fixed by the surveyor.'' 361. The parties to an eflfectual agreement establishing a boundary line must be owners in fee of the lands adjoining upon the disputed or uncei-tain boundary. " It is absurd to suppose that a parol agreement to establish a boundary, where one of the con- tracting parties is an owner and the other has neither the title nor the possession, can be of any avail. It is difficult to compre- hend how such an agreement could have any operation at all." '^ But the fact that a purchaser of land has not yet paid the con- sideration therefor does not invalidate a parol agreement made V. Fellows, 6 N. II. 107, 25 Am. Dec. 452; than twenty years, made an oral agree- Boyd )•. Graves 4 Wheat. 51.3. mcnt with B, who claimed title to nine 1 Dudley v. Elkins, 39 N. H. 78. acres on the north side of the ditch, that 2 Veasey v. Williams, 6 Houst. 56.3. the ditch .should constitute the division 3 Smith V. Bullock, 16 Vt. 502; Wa- line between them ; and B thereupon en- trous y. :\Iorrison, 33 Fla. 261, 14 So. Tvcp. tered into and for five years kept pos- 805. ses-ion of the nine acres. It was held * Camp V. Camp, 59 Vt. 667, 10 Atl. that the agreement did not affect the title, Rep. 748. or prevent A from recovering pos,session, 5 Kampmann v. Heiutz (Tex. Civ. App.), See, also, Vosburgh v. Teator, 32 N. Y. 24 S. W. Rep. 329. 561 ; Snecd y. Osborn, 25 Cal. 619; An- •■■ Terry v. Chandler, 16 N. Y. 3.54. In derson (;. Jackson, 69 Tex. 346, 6 S. W. this case A, who had been in posse.ssioii Rep. 575. of lands on both side.s of a ditch for more 300 BOUNDARY LINES BY AGRKEMENT. [§§ 362, 363. bj' him with the adjoining owners fixing the boundary line be- tween their lands. ^ An agreement between a grantor and bis grantee's husband fixing the division line between the land conveyed and that re- tained by the grantor at a line different from the one stated in the deed, in consequence of which the grantor extended improve- ments up to the new line, is not binding upon the grantee when it and the improvements were made without her knowledge.^ The agreement or acquiescence of one heir does not bind the other heirs, all the heirs being tenants in common of the prop- erty.3 362. A mere intruder is not allowed to question the boun- daries defined in a deed, and assert the title to a portion of the land to be in an adjoining owner, especially when it appears that the grantee by the deed has liad long-continued possession of the land in accordance with the boundaries described in his deed.* 363. A division line established by the admission of one of the parties, and acted upon by the other, may estop the former from denying that it is the true line though in fact it is not. Tims where one of two adjoining proprietors, for the purpose of enabling the other to locate a division fence, pointed out a line as the true dividing line between them, and the latter, relying upon this information, built the fence and cultivated the land and made improvements up to this line, it was held that, as against him, tlie other propi-ietor and his grantees were estopped to claim that a mistake had been made, and the line established was not the the true line.'^ And so where a landowner surveys a boundary line for his land, which is publicly mai'ked, and sells land with refer- ence thereto, he is estopped from denying the correctness of its location as against one purchasing with reference thereto.^ When parties agree upon a line, neither of them knowing the 1 Cavanaugh v. Jackson, 91 Cal. 580, 27 Idaho Land Co. v. Parsons, 2 Idaho, 1191, Pac. Ke|). 931. 31 Pac. Hep. 791'; Sherman v. Hastings, 2 Mitchell r. Brawley (Ind.), 39 N. E. 81 Iowa, 372,46 N. W. Kip. 1084; Cough- Rep. 497. ran v. Alderete (Tex. Civ. App.), 26 S. 3 Lagow I'. Glover, 77 Tex. 448, 14 S. W. Rep. 109. W. Rep. 141. « New York, &c. Land Co. v. Gardner ^ Stemhridge v. Britschur (Ky.), 20 S. (Tex.), 25 S. W. Rep. 737 ; Bri.scoe v. W. Rep. 278; Fowke v. Darnall, 5 Litt. Puckeit (Tex.), 12 S. W. Rep. 978; An- (Ky.) 316, 321. der^oii v. Jackson, 69 Tex. 346,6 S. W. 6 Lemmon v. Hartsook, 80 Mo. 13; Rep. 575, 13 S. W. Rep. 30. 301 § ;U!4.j DESCRIPTION AND BOUNDARIES. true lino, but each intending to fix upon it, and each acting on the best ii)t''>iMu;ition bo can get, and not relying wholly upon the other, nuikos a mistake in locating the line, neither of them is estopped from asserting chiim to tlie true hne when this is after- wards ascertained.^ The owner of a city lot, upon part of which his neighbor has erected a building, is not estopped from asserting title to such part by the fact that he allowed the building to be erected with- out objection, where it appears that he honestly believed that his neighbor knew the correct location of the boundary between their lots.2 Though one of two adjoining owners has been led to establish, or acquiesce in the establishment of, a line as the true boundary between the estates by the misrepresentation of the other, still the line is binding on him as to purchasers from the other who make improvements relying upon the supposed boundary. No- tice to such purchasers that he does not recognize the line as the true boundary is sufficient, liow^ever, to save his rights, and he need not actually take steps to prevent their trespass.'^ 364. Long acquiescence by the owners of adjoining lands in the location of the dividing line between their lands may have the effect of an agreement in establishing such line, if the acqui- escence be for a period of time equal to that fixed by the statute of limitations.'* It has been said that a supposed boundary line, 1 Burnell v. Maloney, 39 Vt. 579 ; Lem- ^^ Hefner v. Downing, 57 Tex, 576. m'Jii V. Hartsook, 80 Mo. 1.3 ; Cheeney v. * Alabama : Hoffman v. White, 90 Ala. Nebra>*ka, &c. Stone Co. 41 Fed. Kep. 354,7 So. Rep. 816. California: White 740; Golterman u. Schiermeier (Mo.), 28 v. Spreckels, 75 Cal. 610, 17 Pac. Rep. S. W. Rep. 616. 715; Columbet r. Pacheco, 48 Cal. 395, 2 Mullaney r. Duffy, 145 111 559,565, 397; Cooper v. Vierra, 59 Cal. 282; 33N. E.Rep. 750, perShope, J. : "Where Sneed v. Osborn, 25 Cal. 619; Helm v. the estoppel is .sought to be established Wil.^on, 7G Cal. 476, 18 Pac. Rep. 604; from the silence of a party who in equity Burris v. Fitch, 76 Cal. 395, 18 Pac. Rep. and good conscience should have spoken, 8fi4. Connecticut: Rathljnn v. Genr, 64 as it is here, if there be any ground of Conn. 421, 30 All. Rcj). 60. District of e8tf>ppel, it is essential that the party Columbia: Neale i\ Lee, 19 D. C. 5. should have had knowledge of the facts, Florida: Liddon r. llartwell, 22 Fla. 442. and the other party have been ignorant Illinois: Fisher r. Beunehoff, 121 111.426, of the truth, and have been misled into 13 N. E. Rep. 150; Darst v. Enlow, 116 doing that which he would not have done 111. 475. Iowa: Doolittle v. Bailey, 85 but for such silence." Smith v. Newton, Iowa, 398, 52 N. W. Rep. 337 ; Wilson 38 111. 2.30; Noble ;;. Chrisman, 88 111. v. Gunning, 80 Iowa, 331, 45 N. W. Rep. 186; Commercial Ins. Co. ??. Ives, 56 111. 920. Kansas: Sheldon v. Atkinson, 38 402; Hill r. Blackwelder, 113 111.283. Kans. 14, 16 Pac. Hep. 68. Kentucky: 302 BOUNDARY LINES BY AGREEMENT. [§ 364. long acquiesced in, is better evidence of the true location of tiie line than any survey made after the original monuments Lave dis- appeared.^ " The acquiescence in such cases affords ground not merely for an inference of fact, to go to the jury as evidence of an original parol agreement, .but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a suffi- cient length of time to become thus conclusive, it is of no impor- tance. The rule seems to have been adopted as a i ule of repose, with a view to the quieting- of titles, and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for twenty years. In all cases in which practical locations have been confirmed upon evidence Belknap i;. Loui'^ville, 93 Ivy. 444, 20 S. W. Rep. 309; Critchlow v. Beaity (Ky.), 23 S. W. Rep. 960; Hammond v. Wil- liams (Ky.), 9 S. W. Rep. 711 ; Scheible V. Hart (Ky.), 12 S W. Rep. 628. Maine : Walker v. Simpson, 80 Me. 143, 13 Atl. Re).. 580; Faiiglit r. Holway, 50 Me. 24. Massachusetts: Kellogg v. Smith, 7 Cnsh. 375. In this case there was evidence of the understanding and occupation of va- rious and successive owners for more than one hundred years. Owen v. Bartholo- mew, 9 rick. 519. Michigan: Flynn v. Glenny, 51 Mich. 580, 17 N. W. Rep. 65; Dupont V. Starring, 42 Mich. 492 ; Lc- compte V. Lueders, 90 Mich. 495, 51 N. W. Rpp. 542. Minnesota : Beardsley v. Crane, 52 Minn. 537, 54 N. W. Rep. 740. Missouri: Jacohs v. Moseley, 91 Mo. 457, 4 S. W. Rep. 135 ; Battner v. Baker, 108 Mo. 311, 18 S. W. Rep. 911 ; Turner v. Baker, 64 Mo. 218, 243, 27 Am. Rep. 2l^6. Nebraska: Benson v. Daly, 38 Neb. 155, 50 N. W. Rep. 788; Trussel v. Lewis, 13 Neb. 415, 14 N. W. Rep. 155,42 Am. Rep. 767 ; Levy v. Yerga, 25 Neb. 764, 41 N. W. Rep. 773; Obernalte v. Ed;,'ar, 28 Neb. 70, 44 N. W. Rep. 82. New Hamp- shire : Dudley v. Elkins, 30 N, H. 78; Richardson v. Chickering, 41 N. H. 380, 77 Am. Dec. 769. New York: Avery ;;. Empire Woolen Co. 82 N. Y. 582 ; Clark V. Davis, 19 N. Y. Supp. 191, 28 Abb. N. C. 135 ; Baldwin v. Brown, 16 N. Y. 359 ; Adams v. Rockwell, 16 Wend. 285; Dib- ble r. Rogers, 13 Wend. 536; Pangburn V. Miles. 10 Abb. N. C. 42 ; Smith v. Mc- Allister, 14 Barb. 434, 436-438 ; Rockwell V. Adams, 7 Cow. 761, 762 ; Kip v. Nor- ton, 12 Wend. 127, 27 Am. Dec. 120; Ausable Co. v, Hargraves, 1 N. Y. Supp. 42 ; Hill V. Edie, 1 N. Y. Supp. 480 ; Dale V. Jackson, 8 N. Y. Supp. 715. North Carolina : Norcum v. Leary, 3 Ircd. 49. Oregon : Richards i'. Snider, 11 Oreg. 197, 3 Pac. Rep. 177. Pennsylvania: Kuhns V. Fennell (Pa.), 15 Atl. Rep. 920; Cul- bertson r. Duncan (Pa.), 13 Atl. Rep. 966 ; West Chester & P. R. Co.'s Appeal (Pa.), 13 Atl. Rep. 214. Rhode Island : O'Donnell v. Penney, 17 R. L 164, 20 Atl. Rej). 305. Tennessee : Galbraith v. Luns- ford, 3 Pick. 89, 9 S. W. Rep. 365 ; Gil- christ v. McGec, 9 Yerg. 455. Texas : King V. Mitchell, 1 Tex. Civ. App. 701, 21 S. W. Rep. 50; Davis v. Mitchell, 65 Tex. 623; Davis v. Smith, 61 Tex. 18. West Virginia : Teass v. St. Albans, 38 W. Va. 1, 17 S. E. Rep. 400; Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. Rep. 880. Wisconsin : Pickett v. Nelson, 71 Wis 542 ; 37 N. W. Rep. 836 ; Eiden v. Eiden, 76 Wis. 435. 45 N. W. Rep. 322. 1 Tarpenning v. Cannon, 28 Kans. 665, quoting Judge Cooley. 803 § 80o.] DESCKiniON AND liOUXDAUIK.s. vi this kiihl, the iienuii'scence lias coiiliiiui'tl for a long period, rarely less than twenty years/" ' When the statement of the boiindaiirs is indeliuile, much weight is to be given to the construction put upon the deed by the parties themselves by their acts and admissions.'-^ The rule of acquiescence appears to have been adopted as a I'ule of repose, for the purpose of quieting titles, and preventing the uncertainty and confusion, and consequent litigation, which would be likely to risult from the disturbance of boundary lines so long established.'' Where a corner, or a line, supposed to have been established by the government in the surveys of public lands, has been acqui- esced in by adjoining owners of such lands for many years, and improvements made, and the land broken up to the line thus established, there is a presumption in favor of such corner being the true one, which can onl}^ be overcome by clear proof that it was not established by the government.* 365. Acquiescence is a question of fact, and each case must furnish its own rule, to be deduced from its own facts and cir- cumstances.^ 1 Baldwin v. Brown, 16 N. Y. 359, 363, per Selden, J. ; Reed v. McCourt, 41 N. Y. 435 ; Reed v. Farr, 35 N. Y. 113 ; Hub- bell V. McCullocli, 47 Barb. 287 ; Jones v. Smith, 64 N. Y. 180; Stewart v. I'atrick, 68 N. Y. 450. The earlier cases in this Sta:e were decided upon the ground that acquiescence was evidence of an agree- ment between the parties. Jackson v. Dyfeling, 2 Caines, 198; Jackson v. Ved- der, 3 John?. 8 ; Jackson v. Dieffcndorf, 3 Johns. 269 ; l^ockwell v. Adams, 7 Cow. 761 ; Clark v. Wethey, 19 Wend. 320. 2 Deery v. Cray, 10 Wall. 263 ; Hamm V. San Francisco, 17 Fed. Re|i. 119 ; Truett V. Adams, 66 Cal. 218, 5 Pac. Rep. 96; Hastings v. Stark, 36 Cal. 122; Blancy ),-. Rice, 20 Pick. 62, 32 Am. Dec. 204 ; Stone V. Clark, 1 Met. 378, 35 Am. Dec. 370 ; Lovejoy D. Lovett, 124 Mass. 270; Rich- ardson V. Chickering, 41 N. H. 380, 77 Am. Dec. 769 ; Fnller v. Cair, 33 N. J. L. 157 ; Jackson v Periinc, 35 N. J. L. 137 ; Lodge ;;. Barnett, 46 Pa. St. 477. 8 O'Donmll i'. Pennev, 17 R. I. 164, 20 304' Atl. Rep. 305, per Matteson, J., citing Baldwin r. Brown, 16 N. Y. 359, 363, 364 ; MeCormick v. Barnuni, 10 Wend. 103, 109 ; Smith V. McAllister, 14 Barb. 434, 437; Jackson y. Van Corlaer, II Johns. 123, 127; Kellotrg v. Smith, 7 Cnsh. 375, 381. In Baldwin v. Brown, sn/ira, the court denies tiie sonndness of the theory that a parol agreement, either actual or sup- posed, lies at the foundation of the rule, and holds that the siipijositiou of such an agreement, in cases of long acquiescence, is entirely superfluous. * Coy V. Miller, 31 Neb. 348, 47 N. W. Rep. 1046; Carpenter v. Monks, 81 Mich. 103, 45 N. W. Rep. 477 ; Diehl v. Zanger, 39 Mich. 601 ; Beaubien v. Kellogg, 69 Mich. 333, 37 N. W. Rep. 691, 696 ; Hoff- man V. Port Huron (Mich.), 60 N. W. Rep. 831. 5 Koenigheim v. Sherwood, 79 Tex. 508, 16 S. W. Rep. 23; Floyd v. Rice, 28 Tex. 341 ; Beecher v. Galvin, 71 Mich. 391, 39 N. W. Rep. 469; Jackson v. Vaa Corlaer, 11 Johns. 127. BOUNDARY LINES BY AGREKMENT. [§ 36u. Where there was a dispute as to the division line, and one of the adjoining owners occupied the disputed hind, and the other, because misled by the adverse claim and by advice received in reference to it, acquiesced for less than twenty ye;irs in such occu- pation, he was not estopped from asserting his tille.^ 366. The distinction should be kept in mind that acquies- cence in a boundary line without any agreement is not conclu- sive unless it is continued under circumstances of adverse occu- pation long enough to give title by prescii()tion ; while acquiescence in a boundary line wiiich, by reason of uncertainty or dispute, the parties have established by agreement, need not be continued for any definite time.^ The acquiescence is, then, of importance only as sl]owing the agreement. " Where tlu-re can be no real doubt as to how the premises should be located according to cer- 1 Hinkley v. Grouse, 125 N. Y. 730, 26 N. W. Kep. 452; Biildwiu v. Brown, 16 N. Y. 359; Reed v. Farr, 35 N. Y. 113; Reed v. McCourt, 41 N. Y. 435 ; Duffy v. Mastci>on, 44 N. Y. 557 ; Townsend v. Hayt, 51 N. Y. 656. 2 Arkansas : Jordan v. Deaton, 23 Ark. 704. California : Silvarer v. Hansen, 77 Cal. 5S('., 20 Pac. Rep. 136 ; Cavanaugh V. Jack-on, 91 Cal. 580, 27 Pac. Rep. 931 ; Johnson v. Brown, 63 Cal. 391 ; Biggins V. Chainplin, 59 Cal. 113; Cooper v. Vierra, 59 Cal. 282. Illinois : Blooming- ton V. Cemetery, 126 111. 221, 18 S. E. Rep. 298 ; Quick v. Nitschelm, 139 111. 251, 28 N. E. Rep. 926 ; Sheets /•. Sweeney, 136 III. 336, 26 N. E. Rep. 648 ; Bauer v. Gottman- hansen. 65 111. 499; Schneiders. Botsch, 90 111.577; Sutherland v. Goodnow, 108 III. 528, 48 Am. Rep. 560. Kentucky: Beyer.sdorfer v. Schultz (Ky.), 2 S. W. Rep. 492 ; Sebastian v. Keeton (Ky.), 29 S. W. Rep. 23. Michigan ; Maui.^tee Manuf. Co. v. Cogswell (Mich.), 61 N. W. Rep. 884; Stewart v. Carleton, 31 Mich. 270 ; Dui)ont v. Starring, 42 Mich. 492, 4 N. W. Rep. 190; Smith v. Ham- ilton, 20 Mich. 433, 4 Am. Rep. 398; Joyce V. Williams, 26 Mich. 332 ; Cronin V. Gore, 38 Mich. 381 ; Bird v. Stark, 66 Mich. 654, 33 N. W. Rep. 754; Junes v. Pashby, 67 Mich. 459, 35 N. W. Rep 152, VOL. I. 11 Am. St. Rep. 589. As was ."^aid in Bird V. Stark: "It is undoubtedly true, under our decisions, that, to make an ar- raugement less than fifteen years old liind- ing, it must have been made with the understanding that it should l)e so re- garded." Missouri : Turner v. Baker, 64 Mo. 218, 27 Am. Rej). 226. Nev/ Hamp- shire : Orr v. Hadley, 36 N. H. 575. New York: Clark v. Wethey, 19 Wend. 320; Clark V. Baird, 9 N. Y. 183; Terry v. Chandler, 16 N. Y. 354, 69 Am. Dec. 707 ; Baldwin y. Brown, 16 N. Y. 359; Hub- bell r. McCidloch, 47 Barb. 287 ; Patten V. Stitt, 6 Rol'. 431. Tennessee: Chad- well V. Chadwell, 93 Tenn. 201, 23 S. W. Rep. 973. Texas: Alliance Milling Co. v. Eaton, 86 Tex. 401, 23 8. W. Rep. 455; Cooper V. Austin, 58 Tex. 494 ; Levy v. Maddox, 81 Tex. 210, 16 S. W. Rep. 877; Lecomte v. Toudouze, 82 Tex. 212,21.3, 17 S. W. Rep. 1047 ; Adams v. IlalfF (Tex.), 24 8. W. Rep. 334 ; Ilarn v. Smith, 79 Tex. 310, 15 S. W. Rep. 240; Blas^in- game v. Davis, 68 Tex. 595, 5 S. W. Rep. 402; Coleman v. Smith, 55 Tex. 254; Bailey v. B;.kcr, 4 Tex. Civ. Aj.p. 395, 23 S. W. Rep. 454. Utah: Switzgable V. Wor.seldine, 5 Utah, 315, recognizing general jirinciple, which was held not ap- ]ilicable to the case. 305 § 367.] DESCRIPTIOX AND BOUNDARIES. tain und known boinuhirios describtHl in tlu> deed, to establish a jtrjictical location different tluMet'i'oni . . . there must be either a location which has been ;ic(niiesceil in for a siiHicient length of time to bar a right of entry under the statute in I'clation to real (>st;ite, or the erroneous line must have been agreed upon between the parties claiming the land on botli sides thereof ; or the party whose right is to be thus barred must have silently looked on and seen the other party doing acts, or subjecting himself to expenses in relation to the land on the opposite side of the line which would be an injury to him, and wliich lie would not have done if the line had not been so located, in which case, perhaps, a grant might be presumed within the twenty years." ^ 367. An agreement or acquiescence in a wrong boundary when the true boundary is known, or can be ascertained from the deed, is treated both in law and equity as a mistake, and neither party is estopped from claiming the true line.^ Accordingly, where adjoining landowners employ a surveyor to run the boun- dary line between the lands, not because they have a dispute about it, but merely because they are ignorant of its exact loca- tion, the line so run, if incorrectly located, is not conclusive on the parties, even though they acquiesce in it believing it to be correct.^ 1 Adams v. Rockwell, 16 Wend. 285, 302, per Walworth, Ch. ■^ See, as Ijenringupon the principle, Ric- ard V. Williams, 7 Wheat. 59, 106; Brad- street V. Huntington, 5 Pet. 402 ; Shrae- dor M. & M. Co. v. Packer, 129 U. S. 688, 9 Sup. Ct. Rep. 385 ; .Jenkins v. Trager, 40 Fed. Rep. 726. Kentucky : Scheible v. Hart (Ky.), 12 S. W. Rep. 62S. Massachu- setts: Boston & W. R. Co. v. Sparhawk, .') Met. 469 ; Wliitney v. Holmes, 15 Mass. 152; Cleavelan s;une place, does not bind either party to tlie line nsuidly occupied by such fence. ^ Neither are the parties in such case bound for the reason that they have cut wood, or pastured their cattle, or mowed the grass, up to such fence, each on his own side and never on the other side."-^ A fence between adjoining owners, placed by mistake on a line dilferent from the true boundary line, does not estop the owner ui'on whose land the fence stands from claiming up to the true line ; and his grantee, under a deed conveying the land " bounded by lands of" his adjoining owner, may claim title according to the true boundary line, and is not restricted to the line of the grantor's occupation as shown by the fence. ^ A fence erected by an adjoining owner nearly on the true line is not notice to the other that any portion of his land is inclosed. He is justified in assuming that his neighbor is inclosing only his own land, and is not estopped to claim to the true line.* 370. A permanent fence built by adjoining owners, on what they supposed to be the true line between them, is evidence of an asieement to establish the line in accordance vi'itli the line of the fence. ^ But a permanent fence built upon a portion of the line between such owners does not entitle either of them to hold by adverse possession upon another part of the same line, when a temporary fence has been kept up varying from the line of the pei-manent fence.*^ 371. The position of old fences may be considered in ascer- taining disputed boundaries ; ' and the conduct of the parties with reference to such fences may be such as to authorize the conclusion that the fences were established by agreement of the partie.s, or have been recognized by them for such a length of time as to determine the line of ownership between the parties. V. Ballen, 68Mo. 165 ; Kincaid v. Dormey, 3 Cleaveland r. Fla?g, 4 Cush. 76. 47 Mo. 337 ; Jackson v. SchoonmMker, 2 ^ Hockinoih c Des Grands Champs, 71 Johns. 230, per Kent, C. J.; Jackson v. Mich. 520, 39 N. W. Rep. 737. Warford, 7 Wend. 62; Brown v. Cock- 5 Smith v. Hosmer, 7 N. H. 436, 28 erell, 33 Ala. 38; Alexander v. Wheeler, Am. Dec. 354. 78 Ala. 107; Hass y. Plantz, 56 Wis. 105, « Smith v. Hosmer, 7 N. II. 4.36, 28 14 N. W. Rep. 65. Am. Dec. 354. 1 Smith V. Hosmer, 7 N. H. 436. '' Hoffman v. Port Huron (Mich.), 60 ■^ Smith V. Hosmer, 7 N. H. 436 ; Doo- N. W. Rep. 831. little i;. Tice, 41 Barb. 181. 308 BOUNDARY LIXES BY AGREEMENT. [§§ 372, 373. Fences built by adjoining lot-owners on the line of the street, accoiding to stakes set by the surveyors soon after the original survey was made, and maintained for forty-five years, are better evidence of the location of such line than a new survey, made forty years after the original survey, which changes such Hne.^ Evidence that there was a very ancient fence between the lots of adjoining owners, and that the fence has been maintained as it now stands for about forty years, and that during such time the owners have openly and continuously held possession under a claim of right up to the line of such fence, warrants a finding that the fence was erected by agreement of the parties ; and a slight variation from the position of the boundary line as described in a deed made sixty years ago, when the land was of little value, does not affect the conclusiveness of the evidence.^ 372. If a mistake has been made by the parties in locating a division line or fence, this may be corrected, if it has not been acted upon for too long a time and no injustice will be done.^ The mistake must, however, be a material one ; * and it must be corrected before rights have been acquired by presump- tion.^ Thus, whei-e a division fence between lands of adjoining owners had been standing more than twenty-one years, it consti- tutes the boundary line between them, although it is crooked and the deeds of both parties call for a straight line between acknow- ledged landmarks.^ Where the grantee under a defective description takes posses- sion of the land actually intended to be conveyed, a court of equity may, as against the grantor, correct the description.'^ 373. A court of equity has no jurisdiction to fix bounda- ries merely because they are disputed or uncertain. To give such jurisdiction there must be son]e equity superinduced by the act to the parties or their situation or relation.^ "Among the I Racine /•. Emerson (Wis.), .5.5 N. W. ^ Dyeri-. Eldrid^rc (Intl.), .36 N. E. Kep. Rep. 177. .522; Hoffman v. White, 90 Ala. 3.54, 7 - Beekman v. Davidson, 162 Mass. .147, So. Rep. 816. 39 N. E. Rep. 38. See cases cited by <= :\i(.Coy v. Ilance, 28 Pa. St. 149. Knowlton, J. ^ I)\vi;;bt v. Tyler, 49 Mich. 614, 14 N. ^ Menkens r. Blumenthal, 27 Mo. 198 ; W. Rep. 567. Leinmon v. Ilart-ook, 80 Mo. 13; Cun- « 1 Story Eq. Jtir. § 615,3 Pom. Eq. ningham v. Roherson, 1 Swan, 138 ; Scliad .Tiir. § 1384 ; Noiris's App. 64 Pa. St. 27.5 ; V. Sharp, 9.5 Mo. 573, 8 S. W. Rep. 549. Wilson v. Hart, 98 Mo. 618, 12 S. W. ■* Cunningham v. Roberson, 1 Swan, Rep. 249, 250. 138. 30!) s§ ;'.T4, o75.] DKSCKIPIION AND BOUNDARIES. grouiKls of oquituble interference niiiy be nicntionctl multiplicity of suits, irreparable mischief not easily measured by damages, fraud or mistake." ^ Even in case tiiere lias been a mistake as to the boundary line, and one owner lias placed a building a little over the line upon land of the adjoining owner, a court of equity will not order the removal of the building, but will leave the party to his remedy at law. The court may, however, enter a decree that, if the plaintiff will release the strip of land so built upon within a certain time, judgment shall be entered for the value of the land as found by a referee and costs. The court will not aid the plaintiff in obtain- ing an exorbitant price for land which is comparatively valueless except for purposes of litigation.'-^ 374. In some States there are statutes providing for estab- lishing disputed boundaries by an official survey. To make such a survey final and binding upon the parties, notices must be given, and all proceedings had in substantial conformity with the statute.'^ The fact that notice was given to the parties to be affected should appear on the face of the proceedings.^ Authority under an equitable proceeding to ascertain the true boundary lines between adjacent lands cannot be extended to the determination of the title. Title must be determined by a suit at law to recover the land. It is true that the determination of the boundary may involve the title to some portion of the land. " The distinction is between cases which are prosecuted with the ostensible object of determining the true boundary line between the parties and those brought to recover lands claimed by the defendant to be embraced within this boundary line as against the line claimed by the plaintiff." '"^ 375. The declarations of deceased persons made -while in possession of land, and in the act of pointing out their boun- daries, are admissible in evidence as to such boundaries when 1 Sedg. & Waitii, Tr. Title Land, § 865. ■* Davis v. Howell, 47 N. J. L. 280. 2 Hunter v. Carrol, 64 N. H. 572, 15 ^ King v. Brigham, 23 Oreg. 262, 31 Atl. Rt-p. 17 ; Clark v. Society, 46 N. H. Pae. Rep. 601 ; Love v. Morrill, 19 Greg. 272. 545, 24 Pac. Rep. 916; Norris' App. 64 •MIolliday V. Maddox, 39 Kans. 359, 18 Pa. St. 275, 279; West Hartford Soc. Pac. Rep. 299 ; Schwab v. Stoneback, 49 r. First Baptist Church, 35 Conn. 117, Kans. 607, 31 Pac. Rep. 142; Marsh v. 120. Chestnut, 14 111. 223 ; Neary v. Jones (Iowa), 56 N. W. Rep. 675. 310 BOUNDARY LINES BY AGREEMENT. [§ 376. nothing appears to show an interest to deceive or misrepresent.^ It need not appear affirmatively that the dechirations were against the interest of the person making them,^ but they must be so in fact,^ or it must at least appear that such person had no interest to make false representations ; * and it must appear that they were made by a former owner in possession of the land at the time,^ in tlie act of pointing out the boundaries,^ The declarations must be those of a person who has since deceased." The declarations derive their force from the fact that they accompany the act of pointing out the boundaries, and are thus a part of the act.^ 376. In some States the declarations of a surveyor or other disinterested person since deceased are admissible in a con- troversy about such line, though not a former owner, if he was in a position to know a boundary line, corner, or monument, and the declarations were made before the controversy commenced,^ 1 Hunnicutt v. Peyton, 102 U. S. 333; Ellicott V. Pearl, 10 Pet. 412. Califor- nia: Sharp V. Blankenship, 79 Cal. 411, 21 Pac. Rep. 842. Georgia: McLeod v. S\v;>iu, 87 Ga. 150, 13 S. E. Rep. 315; Towner v. Thompson, 82 Ga. 740, 9 S. E. Rt')). 672. Kentucky : Scott v. Means Iron Co. (Ky.) 18 S. W. Rep. 1012. Maine : Simpson v. Blai^dell, 85 Me. 199, 27 Atl. Rep. 101 ; Royal r. Chandler, 83 Me. 150, 21 Atl. Rep. 842. Massachu- setts: Chapman v. Edmands, 3 Allen, 512; LoDj,' V. Colton, lie Mass. 414; Bartlett V. Emerson, 7 Gray, 174 ; Ware v. Brook- house, 7 Gray, 454 ; Wood v. Foster, 8 Allen, 24, 85 Am. Dec. 681 ; Flags '•• Ma- son, 8 Gray, 556 ; Da{:<;ett v. Shaw, 5 Met. 223. New Hampshire : Smith v. Forre.^t, 49 \. 11. 230 ; South Hampton v. Fowler, 54 N. II. 197 ; Great Falls Co. v. Wor.ster, 15 N. H. 412, 437; Wood v. Fi.ske, 62 N. H. 173 ; Pike v. Hayes, 14 N. II. 19,40 Am. Dec. 171 ; Lawrence v. Tennant, 64 N. II. .532, 15 All. Rep. .54.3. New York: Partridge v. Russell, 2 N. Y. Sti])p. 529. North Carolina: Roberts u. Preston, 100 ^■. ('. 243, 6 S. E. Rep. 574. Peimsyl- vania: Bender v. Piizer, 27 Pa. St. 3.33. Texas: Kvans v. Hurt, 34 Tex. Ill ; Hurt r. Evans. 49 Tex. 311 ; Windus /-. James (Tex), !9 S. W. Rep. 873; Whitman v. Haywood. 77 Tex. 557, 14 S. W. Rep. 166. Vermont : Wood v. Willard, 36 Vt. 82, 84 Am. Dec. 659. - Daggett I'. Shaw, 5 Met. 223 ; Wood V. Foster, 8 Allen, 24,85 Am. Dec. 681, 3 Corbleys v. Ripley, 22 W. Va. 154,46 Am. Rep. 502 ; Wood v. Willard, 36 Vt, 82, 84 Am. Dec. 659. 4 Corbleys v. Ripley, 22 W. Va. 154, 46 Am. Rep. 502; Long v. Colton, 116 Mass. 414. 5 Whitney v. Bacon, 9 Gray, 206 ; Chap- man V. Twitchell, 37 Me. 39, 58 Am. Dec. 773 ; Partridge v. Russell, 2 N. Y. Supp. 529 ; Taylor v. Glenn, 29 S. C, 292, 7 S. E. Rep. 483. « Hunnicutt v. Peyton, 102 U. S. 333, 363 ; Lemmon v. Ilartsook, 80 Mo. 13 ; Long V. Colton, 116 Mass. 414; Bartlett V. Emerson, 7 Gray, 174 ; Curtis v. Aaron- son, 49 N. J. L. 68, 7 Atl. Rep. 886. ■^ Flagg V. Mason, 8 Gray, 556 ; Bart- lett V. Emerson, 7 Gray, 174; Davis v. Fuller, 12 Vt. 178, 36 Am. Dec. 334. 8 Hunnicutt v. Peyton, 102 U. S. 333, 363, per Strong, J. ; Bender ;•. I'itzer, 27 Pa. St. 333. '■> Boardman v. Reed, 6 Pet. 328; Hun- nicutt V. Peyton, 102 U. S. 333, 365; Tucker v. Smith, 08 Tex. 473, 3 S. W. Rep. 671; McCausland v. Fleming, 63 311 ;; 377.1 DESCRIl'TION AND BOUNDAniES. provideJ tlu' tlerliiiatioiis weix' iiiiidc while tlu' declarant was poiiitiiig- out or marking the boundaries, or discharging some duty relating thereto.^ More generally, however, and upon sound principles, the rule is restricted to the admission of declarations only when made by persons owning the land anil being at the time in possession of it • ^ and evt-n then the dcclaiations must be either a part of the 7-es geatcv^^ or be made against the interest of the owner. Thns the declarations of the owner, while staaiding on his land, in his own favor, are not competent evidence in favor of one claiming under him, to prove a right of way over adjacent land of another person."* 377. The declarations of a surveyor made while he was engaged in making the survey are held admissible as a part of the res gestae, and it is not necessary to prove his subsequent d.-ath.-^ Survevs by the same surveyor made at about the same time as a survey in dispute, and locating the same lines, are admissible as declarations of the surveyor, who is dead.^ But declarations of a deceased surveyor, who was not present at or C(mnected with the original survey, are inadmissible though he took part in a sub- division of the survey.'' Pa. St. 36; Kianier v. Goodlander, 98 i Ellicott v. Pearl, 10 Pt-t. 412; Hun- Pa. St. 366 ; Harrimau r. Brown, 8 Leigh, nicutt v. Peyton, 102 U. S. 333; Clay 697; Hill v. i'roctor, 10 VV. Va. 59, 84; County Land Co. v. Montague County Bender v. i'ltzer, 27 Pa. St. 333 ; George (Tex. Civ. Ai)p.), 28 S. W. Rep. 704. V. Thomas, 16 Tex. 74, 67 Am. Dec. 612 ; "- Hunnicntt v. Peyton, 102 U. S. 333; Siroudw. Springfield, 28 Tex. 649; Welder Hall v. Mayo, 97 Mass. 416 ; Bartlett v. r. CMrroll, '29 Tex. 317 ; Smith o. Kussell, Emerson, 7 Gray, 174; Long v. Colton, 37 Tex. 247 ; Tucker v. Smith, 68 Tex. 116 Mass. 414; Curtis v. Aaronson, 49 473, 3 S. W. Rep. 671 ; Smith v. Forrest, N. J. L. 68, 7 All. Rep. 886, 60 Am. Rep. 49 N. H. 230 ; Lawrence v. Tennant, 64 .584 ; Horner v. Stillwell, 35 N. J. L. K. H. 532, 15 Atl. Rep. 543; Great Falls 307; Chiii'man v. Twitchell, 37 Me. 59, Co. /•. Worster, 15 N. H. 412; Wdod r. 58 Am. Dee. 773; Hurt v. Evans, 49 Tex. Willard, 37 Vt. 377, 386, 86 Am. Dec. 311. 716; Bethea v. Byrd, 95 N. C. 309, 59 '^ Deming v. Carrington, 12 Conn. 1, Am. Rep. 240 ; Whitehurst v. Pettipher, 30 Am. Dec. 591. 87 N C. 179, 42 Am. Rep. 520; Smith v. * Ware v. Broolshouse, 7 Cray, 4.54. Heidrick, 93 N. C. 210; Fry tJ. Ciirrie, 91 5 George v. Tlioina.s, 16 Tex. 74, 67 N. C. 436 ; Williams v. Kivett, 82 N. C. Am. Dec. 612. 110; Sasser v. Herring, 3 Dev. L. 340; <^ Cottingham v. Seward (Tex. Civ. Martin v. Atkinson, 7 Ga. 228, 50 Am. App.), 25 S. W. Rep. 797. D.'C. 403; Whalen r. Ni^bet (Ky.), 26 S. " §376. Angle v. Young (Tex. Civ. W. Rep. 188. Apj).), 25 S. W. Rep. 798. 312 HuLWDARY LINES BY AGREEMENT. [§§ 378-380. 378. The declarations of a deceased surveyor made on the spot while running or pointing out a line are admissible to identify the monuments of a survey.^ Thus the dechu'ations of a deceased surve3or, while making a survey, have been admitted to identify a monuuieut pointed out by him as a corner of the same survey, estabhshed in making the original survey many years before, in which he had participated. The decisions in South Carolina and Texas have gone the length of admitting not only evidence of the declarations of a deceased surveyor made while surveying the land, but also those of a deceased chain-bearer who had pointed out to the witness the place of a corner. - 379. The opinion of a witness as to the location of a dis- puted division line is incompetent testimony, though he had long been intimately acquainted with the premises.^ The opinion of surveyors to the effect that, when the land was originally surveyed, only one line of tlie survey was actually run, is inadmissible. It is the province of the jury to conclude from tlie facts pi'oved whether or not the lines were actually run, or the survey was merely an office survey.* 380. In some States, ancient boundaries in dispute, whether public or private, may be proved by the common reputation and understanding of the neighborhood where the land lies. Such reputation or understanding, to be admissible, must be shown to be general and concurrent, and it must have been in existence before the controversy commenced in which it is used as evi- 1 Aycrs v. Watson, l."?; U. S. 584, 11 Sup. Ct. Hep. 201 , per Bradley, J. ; Huuiii- ciitt V. Peyton, 102 U. S. 333 ; Georjje v. Thomas, 16 Tex. 74, 67 Am. Dec. 612; P.lythe V. Suthorliuui, 3 McCortl, 258; Stroud V. Sprinofield, 28 Tex. 649 ; Wdder V. Carroll, 29 Ttx. 317 ; Caufman v. Pres- byieriau Cong. 6 Binn. .'i9 ; Bender v. Pit- zer, 29 Pa. St. 333, ,335; Kennedy v. LuLold, 88 Pa. St. 246 ; MeCausland v. Fleming, 63 Pa. St. 36 ; Kramer v. Goodlander, 98 Pa. St. 366; Bellas v. Cleaver, 40 Pa. St. 260 ; Tyrone Co. v. Cross, 25 \\. N. C. 97, 18 Atl. Rep. 519; Sweigart v. Richards, 8 Pa. St. 436 ; Conn v. Penn, 1 P.t. C. C. 496 ; Board man v. Reed, 6 Pet. 328 ; Cuin- iiion«eaUli v. Frew, 3 Pa. Co. Ct. Rep. 492; Cherry v. Boyd, Litt. Sel. Cas. 7; Donohue i-. Whitney, 15 N. Y. Supp. 622 ; Partridge v. Russell, 2 N. Y. Supp. 529. The Eiigli.sh cases admit hearsay to deter- mine a private houndary when it is iden- tical with a public boundary, as of a hamlet, ))aiish, or manor. Thomas v. Jenkins, 6 Ad. & E..525. ■- Specry. Coate,3McCurd, 227; Blythe r. Sutherland, 3 McCord, 258; Smith r. Russell, 37 Tex. 247. •■' Beccher v. Galvin, 71 Mich. 391, 39 N. W. Rep. 469. •» Randall v. Gill, 77 Tex. 351, 14 S. W. Rep. 134; Reast v. Donald, 84 Tex. 648, 19 S. W. Rep. 795. 313 K GSl.] DESCRirTION AND BOUNDARIES. deiR'o.' SiK'li proof must also show the bouiuUuy with i-east)ua- ble ri'rtainty.- W'hoie the location of a private boundary depends upon show- ing the original section line, this may be shown by proof of general reputation .^ IV. Greiteral Rules of Construction. 381. It is a rule thit monuments prevail, in cases of dis- crepancies, over courses and distances.^ The ground of the 1 Stroiul V. Springfield, 28 Tex. 649 ; Sexton V. Hollis, 26 S. C. 231 ; Jones v. Dean (Kv.), 5 S. W. Rep. 470; Nixon v. Porter, 34 Miss. 697, 69 Am. Dec. 408 ; Stetson V. Freeman, 35 Kans. 523, 11 Pac. Rep. 431, as to boundary of a city; Kin- ney w. Farnsworth, 17 Conn. 355; Woos- ter V. Butler, 13 Conn. 309 ; Goddard v. Parker, 10 Oreg. 102; Nys v. Biemeret. 44 Wis. 104 ; Aid rich v. Griffith, 66 Vt. 390, 29 Atl. Rep. 376 ; Thoen v. Roche (Minn.), 58 N. W. Rep. 686. - Nixou V. Porter, 34 Miss. 697, 69 Am. Dec. 408. 3 Mullaney v. Duffy, 145 111. 559, .33 N. E. Rep. 750. * Avers V. Watson, 113 U. S. 594,5 Sup. Ct. Rep. 641 ; Land Co. v. SMunders, 103 U. S. 316, 322; Morrow v. Whitney, 95 U. S. 551 ; United States v. Murray, 41 Fed. Rep. 862; Brown v. Hnger, 21 How. 305 ; Barclay v. Howell, 6 Pet. 498 ; Cleaveland v. Smith, 2 Story, 278 ; M'lver V. Walker, 9 Cranch, 173; 4 Wheat. 444; Nelsun j). Hall, 1 McLean, 518. Alabama : Guilmartin v. Woo.d, 76 Ala. 204. California : Walsh v. Hill, 38 Cal. 481 ; Pii-rcy v. Crandall, 34 Cal. 334; Col- ton V. Seavey, 22 Cal. 496; Penry ;;. Richards, 52 Cal. 496; Adair i;. Whiie, 85 Cal. 313, 24 Pac. Rep. 663; StoU y. Beccher, 94 Cal. 1, 29 Pac. Rep. 327; Anderson v. Richardson, 92 Cal. 623, 28 I'ac. Rep. 679; Beaudry v. Doyle, 68 Cal. 105; Tognazzini o. Morganti, 84 Cal. 1 59, 23 Pac. Rep. 1 035. Colorado : Hol- leubeck r. Syke.s, 17 Colo. 317, 29 Pac. Rep. 3S0. Connecticut: Nichols v. Tur- ney, 15 Conn. 101 ; Beldcn v. Seymour, 314 8 Conn. 19. Florida : Ho{;;ans v. Carruth, 19Fla. 84; Andreu v. Watkins, 26 Fla. 390, 7 So. Rep. 876; Daggett v. Wilky, 6 Fla. 482. Georgia: Harris u. Hull, 70 Ga. 831 ; Benton u. HorsJey, 71 Ga. 619; Georgia R. R. Co. v. Hamilton, 59 Ga. 171. Illinois: Coltingham v. Parr, 93 ill. 2.33; Miller v. Bceler, 25 111. 163; Lin- coln V. McLaughlin, 74 111. 11 ; England V. Vandermark, 147 111. 76, 35 N. E. Rep. 465; McClintock v. Rogers, 11 HI. 279; Fisher v. Bennehoff, 121 111. 426, 13 N. E. Rep. 150. Indiana: Caspar (J.Jamison, 120 Ind. 58, 21 N. E. Rep. 743; Simonton v. Thompson, 55 Ind. 87 ; Shepherd u. Nave, 125 Ind. 226,25 N. E. Rep. 220. Iowa: Bolton I'. Eggleston, 61 Iowa, 163, 16 N. W. Rep. 62 ; Yocum v. Hasldns. 81 Iowa, 436,46 N. W. Rep. 1065; Moreland v. Page, 2 Iowa, 139; Walrod v. Flanigan, 75 Iowa, 365, 39 N. W. Hep. 645. Ken- tucky : Bailey v. McConnell (Ky.), 14 S. W. Rep. 337; Baxter v. Evett, 7 Mon. 329. Louisiana : Gnghlielhmi v. Gei.smar, 46 La. Ann. 280, 1 4 So. Rep. 501 . Maine : Bryant v. Maine Cent. R. Co. 79 Me. 31 2, 9 Atl. Rep. 736 ; Carville v. Hutehins, 73 Me. 227; Tyler r. Fickett, 73 Me. 410; Cilley V. Childs, 73 Me. 130; Melcher r. Merryman, 41 Me. 601 ; Haynes v. Young, 36 Me. 557. Maryland : Friend r. Friend, 64 Md. 321, 1 Atl. Rep. 865; Thomas v. Godfrey, 3 Gill & J. 142; Heck V. Remka, 47 Md. 68 ; Wil.'^nn v. Inloes, 6 Gill, 121. Massachu-setts : Dodd V. Witt, 130 Mass. 63, •J9 \. K. Rep. 475, 52 Am. Rep. 700; Woodward v. Nims, 130 Mass. 70; Foley v. IMcCarrhy, 157 Mass. 474, 32 N. E. Rep. 669 ; Howe v. GENERAL .RULES OF CONSTRUCIIUX. [^ SSI. rule is, tbut mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visi- Bass, 2 Mass. 380, 3 Am. Dec. 59 ; Frost v. Augier, 127 Mass. 212 ; Morse v. Kog- ers, lis Mass. 572; Sauboru i'. Rice," 129 Mass. 387 ; Frost v. Spauldiug, 19 Pick. 445, 31 Am. Dec. 150; Pernam v. Wend, 6 Mass. 131 ; Davis v. Kainsford, 17 Mass. 207. Michigan: Twogoud v. Hoyt, 42 Mich. C09, 4 N. W. Rep. 445; Biowu v. Morrill, 91 Midi. 29, 51 N. W. Rep. 700. Minnesota : Nicolin v. Schneiderhan, 37 Minn. 63, 33 N. W. Rep. 33 ; TurnbuU v. Schroeder, 29 Miim. 49,11 N. W. Rep. 147 ; Coles v. Yorks, 36 Minn. 388, 31 N. W. Rep. 353 ; Yanish v. Tarbox, 49 Minn. 268, 51 N. W. Rep. 1051. Mississippi: O'Hei-rin v. Brooks, 67 Mi-.s. 266, 6 So. Rep. 844 ; Potts v. Canton Warehouse Co. 70 Miss. 462, 12 So. Rep. 147. Mis- sonri: Harding v. Wright, 119 Mo. 1, 24 S. W. Rep. 211; Whittlesey i-. Kellogg, 28 Mo. 404 ; Climer v. Wallace, 28 ]\Io. 556: Campbell v. Johnson, 44 Mo. 250; Smith ?j. Catlin Laud Co. 117 Mo. 438, 22 S. W. Rep. 1083 ; Kroneubergerr. Hoff- ner, 44 Mo. 185 ; Rutherford v. Tracy, 48 Mo. 326 ; Kellogg v. Mullen, 45 Mo. 571 ; Jamison i'. Fopiano, 48 Mo. 194; Cooley V. Warren, 53 Mo. 166; West i: Bretclle, 115 Mo. 653, 22 S. W. Rep. 705; She- waiter V. Pirner, 55 Mo. 218 , Blumcnthal Real Estate Co. v. Broch (Mo.), 29 S. W. Rep. 836. Nebraska : Thompson c. IlHrris, 40 Neb. 230, 58 N. W. Rep. 712 ; Johtison V. Preston, 9 Neb. 474. New Hampshire: Cunningham v. Curtis, 57 N. n. 157; Coburu v. Coxeter, 51 N. H. 158; Smith v. Dodge, 2 N. H. 303; Grif- fin V. Bixby, 12 N. H. 454, 37 Am. Dec. 225. New Jersey: Smith r. Negbauer, 42 N. J. L. 305 ; Andrews v. Rue, 34 N. J. L. 402 ; Opdyke r. Stephens, 28 N. J. L. 83 ; M(;CulIough v. Absecon Imp. Co. 48 N. J. Eq. 170, 21 Atl. Rep. 481 ; Cur- tis V. AarOD'^on, 49 N. J. L. 68, 7 Atl. Rep. 886; K.ill)fleisch w. Standard Oil Co. 43 N. J. L 259. New York : Case »;. Dex- ter, 106 N. Y. 548, 13 N. E. Rep 449; Thayer v. Pinion, 108 N. Y. 394, 15 N. E. Rep. 615; Arden v. Thompson, 5 Cow. 371 ; Casey v. Dunn, 8 N. Y. Supp. 305; Baldwin v. Brown, 16 N. Y. 359 ; Drew v. Swift, 46 N. Y. 204 ; Wendell v. People, 8 Wend. 183, 22 Am. Dec. 635 ; Seneca Na- tion V. Hugaboom, 132 N. Y. 492, 30 N. E. Rep. 983; Lovejoy v. Tietjeu, 47 Ilun, 321 ; Muhlker v. Ruppeit, 124 N. Y. 627, 26 N. E. Rep. 313. North Carolina : West V. Shaw, 67 N. C. 439 ; Credle v. Hays, 88 N. C. 321 ; Buckner i;. Anderson, 111 N. C. 572, 16 S. E. Rep. 424; Proctor v. Pool, 4 Dev. 370; Shaffer v. Hahn, 111 N. C. 1, 15 S. E. Rep. 1033; Bonaparte v. Car- ter, 106 N. C. 534,11 S. E. Rep. 262; Cowles V. Reavis, 109 N. C. 417, 13 S. E. Rep. 930 ; Cox i\ McGowan (N. C), 21 S. E. Rep. 108. Ohio: Wyckoff i-. Ste- phenson, 14 Ohio, 13; Alseire r. Hulse, 5 Ohio, 534. Oregon: Lewis v. Lewis, 4 Oreg. 177; Anderson v. McCormick, 18 Oreg. 301, 22 Pac. Rep. 1062; King v. Brigham, 19 Oreg. 560, 25 Pac. Rep. 150. Pennsylvania: Breneiserr. Davis, 134 Pa. St. 1 ; Watson v. Jones, 85 Pa. St. 117; Morse v. Rollins, 121 Pa. St. 537, 15 Atl. Rep. 645 ; Bnrkholder v. Markley, 98 Pa. St. 37 ; Lodge v. Barnett, 46 Pa. St. 477. South Carolina: Sturgeon v. Floyd, 3 Rich. L. 80; FuUwood ;,'. Graham, 1 Rich. 491. Tennessee: Lewis v. Oakley, 10 Heisk. 483 ; Disney v. Coal Creek Min. Co. 11 Lea, 607 ; Bleidorn v. Pilot Mt. Coal Co. 89 Tenn. 166, 204, 15 S. W. Rep. 737. Texas: St;ifford v. King, 30 Tex. 257, 94 Am. Dec. 304; Booth v. Strippleman, 26 Tex. 436; Welder v. Hunt, 34 Tex. 44; Titteiingion v. Trees, 78 Tex. 567, US W. Rep. 692; Mitch- ell r. Bnrdett, 22 Tex. 633 ; Davis i;. Bay- lor (Tex.), 19 S. W. Rej). 523; Liiiuey v. Wood (Tex.), 17 S. W. Rc]). 244; Ran- dall V. Gill, 77 Tex. 351, 14 S. W. Rep. 134 ; Roberts v. Helms (Tex. Civ. App.), 20 S. AV. Rep. 1004 ; Wyatt v. Foster, 79 Tex. 413, 15 S. W. Rep. 679; Luckctt i'. Scruggs, 73 Tex. 519, 11 S. W. Rep. .529 ; Bland v. Smith (Tex. Civ. Ai)p.), 26 S. 315 § ^^81.] DESCRIPTION AND BOUNDARIES. blo ami luM-iiiiui'Mit.' A description by coiirst^ aiul distance is rt't>-;ir(lt>il as tlu' most uncertain kind of dest-ription, because niis- takes are liable to occur in the making of the survey, in entering the minutes of it, and in copying the same from ti>e field-book."'' "Consequently, if marked trees and marked corners be found conformably to the calls of tlie patent, or if watercourses be called for in the patent, or mountains or other natural objects, distances must be lengthened or shortened and courses varied so as to conform to those objects." ^ In locating lands, the follow- ing calls are resorted to, and generally in the order stated : (1) Natural boundaries ; (2) artificial marks ; (3) adjacent bounda- ries; (4) course and distance, — course controlling distance, or distance course, according to circumstances ;* but it has never been said that each of these occupies an inflexible position. W. Rep. 773. Vermont : Baslny v. Mor- rell, 46 Vt. 94; Church v. Stiles, 59 Vt. 642 ; Keenan v. Cavanauj^h, 44 Vt. 268 ; Park V. Park, 38 Vt. 545, 552. Virginia : Norfolk Tru.st Co. v. Foster, 78 Va. 413 ; DoKan v. Seekright, 4 Hen. & M. 125; Clements y. Kyles, 13 Gratt. 468, 480; Coles V. Woodinz, 2 Tat. & H. 189 ; Smith V. Davis, 4 Gratt. 50. West Virginia: Adams v. Alkire, 20 W. Va. 480; Teass V. St. Albaus, 38 W. Va. 1, 17 S E. Rep. 400 ; Gwynn v. Schwartz, 32 W. Va. 487, 19 S. E. Rep. 880. Wisconsin : Marsh v. Mitchell, 25 Wis. 706; Fleischfresser v. Schmidt, 41 Wis. 223; Miner v. Brader, 65 Wis. 537, 27 N. W. Rep. 313 ; Borker- hagen v. Viandeu, 82 Wis. 206, 52 N. W. Rep. 260. 1 Morrow v. Whitney, 95 U. S. 551, 555; M'lver v. Walker, 9 Cranch, 173, 178; Clements v. Pearce, 63 Ala. 284, 292; Baldwin v. Brown, 16 N. Y. .T59 ; Baxter v. Wilson, 95 N. C 137 ; Strick- land V. Drauq;han, 88 N. C 315 ; Keenan V. Cavanaiijh, 44 Vt. 268, 276; Ferris v. Coover, 10 Cal. 589 ; Stafford v. King, 30 Tex. 257, 271, 94 Am. Dec. 304. In this case Smith, J., said : "The general rules are, that the location should be governed, first, by natural ohjects or boundaries, su'-h as rivpis, hikes, creeks, etc. ; second, artificial marks, such as marked trees, Q1 /? lines, stakes, etc. ; and, third, course and distance. The true and correct location of the land is ascertained by the applica- tion of all or any of these rules to the particular case ; and when they lead to contrary results or confusion, that rule must be adopted which is most consistent with the intention apparent upon the face of the i>atent read in the light of the sur- rounding facts and circumstances. Of all these indicia of the locality of the true line as run by the surveyor, course and distance are regarded as the most unre- liable, and gemr.iUy distance more than course, for the reason that chain-carriers may miscount and report distances inac- curately, by mistake or design. At any rate, they are more liable to err than the compass." 2 Credle v. Hays, 88 N. C 321 ; Houser V. Belton, 10 Ired. 358 ; Herbert v. Wise, 3 Call, 2.39. 3 Mclver V. Walker, 9 Cranch, 173, 177, jicr Marshall, C J. And see Biirkholder V. Marskley, 98 Pa. St. 37; Dogan v. Seekright, 4 Hen. & M. 125; Randall i;. Gill, 77 Tex. 351, 14 S. W. Rep. 134. i Vanish V. Tarbox, 49 Minn. 268,51 N. W. Rep. 1051 ; Fisher v. Bennehoff, 121 in. 426, 13 N. E. Rep. 150; Teass v St. Albans 38 W. Va. 1,17 S. E. Rep. 400, ])cr Holt, .T. ; Fulwood v. Graham, GENERAL RULES OF CONSTRUCTION. [§§ 382, 383. 382. This rule applies where the monuments or boundaries described in the deed are certain, or capable of being made certain.^ It does nut apply where the monuments or bounjiiries cannot be found, where they contravene all the other terms of the description, or where an adherence to them would defeat the evident intent of the jjarties.- Though the monument referred to does not actually exist at the time, but is afterwards erected by the parties with the intention that it shall conform to the deed, it will eontrul.-^ 383. But a call for a monument in a deed does not control absolutely, so as to preclude the consideration of other evidence as to the true locality of the land.* Courses and distances will prevail over monuments, if the former best comport with the circumstances oi the case and the manifest intention of the par- ties.^ When it is manifest there is a mistake as to the monument, or the monuments are uncertain, inferior evidence of location may control the higher.^ Where the boundary is not fixed and known, and the location of monuments is in dispute, lost, or left in doubt by the evidence, courses and distances will be considered 1 Rich. 491 ; Gordon v. Booker, 97 Cal. 586, 32 Pac. Rep. 593; Rand v. Cart- wright, 82 Tex. 399, 18 S. W. Rep. 794. 1 Morse v. Rogers, 118 Mass. 572, 578; George v. Wood, 7 Allen, 14; Wharton V. Garvin, 34 Pa. St. 340 ; Coughran v. Alderete (Tex. Civ. App.), 26 S. W. Rep. 109; Gerald v. Freeman, 68 Tex 201,4 S. W. Rep. 256. 2 White V. Luning, 93 U. S. 514 ; Mur- dock ?;. Chapman, 9 Gray, 156; Parks v. Loomis, 6 Gray, 467 ; Davis v. Raiusford, 17 Mass. 207; Mizell v. Simmons, 79 N. C. 182; Hanson v. Red Rock (S. T).), 57 N W. Rep. 11; Davidson v. Killcn, 68 Tex. 406, 4 S. W. Rep. 561. ■^ Makepeace v. Bancroft, 12 Mass. 469 ; Owen V. Bartholomew, 9 Pick. 520 ; Ken- nebec Purchase v. Tiffany, 1 Me. 219, 10 Am. Dec. 60. •* Jones V. Burgett, 46 Tex. 284 ; Big- hnm V. McDowell, 69 Tex. 100, 7 S. W. Rep. 315; Linney v. Wood, 66 Tex. 22, 17 S. W. Rep. 244; Jones v. Andrews, 72 Tex. 5, 9 S. W. Rep. 170; Cannon v. Enmians, 44 Minn. 294, 46 N. W. Rep. 356 ; Biiekner i". Hendrick (Ky.), 1 S. W. Rep. 646. 5 Hale V. Cottle, 21 Oreg. 580, 28 Pac. Rep. 901 ; Teass c. St. Albans, 38 W. Va. I, 17 S. E. Rep. 400; Ruffner v. Hill, 31 W. Va. 428, 7 S. E. Rep. 13 ; Titterington V. Trees, 78 Tex. 567, 14 S. W. Rep. 692 ; Scott r. Weisbnrg, 3 Tex. Civ. App. 46, 21 S. W. Rep. 769 ; Davis v. Rainsford, 17 Mass. 207; Parks v. Loomis, 6 Gray, 467 ; Murdock v. Chapman, 9 Gray, 156 ; Flagg V. Thurston, 13 Pick. 145; Cobiirn V. Coxeter, 51 N. H. 158; White v. Gay, 9 N. H. 126; Hamilton v. Foster, 45 Me. 32 ; Evans r. Weeks, 6 Rich. 83. •"' Fuhvood V. Graham, 1 Rich. 491 ; Hollenbeck v. Sykes, 17 Colo. 317, 29 Pac. liep. 380; Cannon v. Emmans, 44 Minn. 294, 46 N. W. Rep. 356; Blackburn v. Nelson, 100 Cal. 336, 34 Pac. Rep. 775; Vanish v. Tarbox, 49 Minn. 268, 51 N. W. Rep. 1051. 317 § 384.] DESCRIPTION AND BOUNDARIES. ill fixing boundaries.^ Where no monuments are referred to in the description, and none are intended to be erected, the distance stateil tlierein must control the location.'^ 384. A monument inadvertently referred to, or inconsistent with the rest of the description, may be rejected.'^ And so, if the monuments described in a deed cannot be found, nor their location proven, resort must be had to other parts of the descrij)- tion to identify the land; and courses and distances, if they are given and appear to be correct, may be relied upon.* " Tlie courses and distances," says Cliief Justice Marshall, "are less certain and less permanent guides to the land which was actually surveyed and granted than natural and fixed objects on the ground ; but they are guides to some extent, and, in the absence of all others, must govern us. If a grant be made which describes the land granted by course and distance only, or by natural objects not distinguishable from others of the same kind, course and dis- tance, though not safe guides, are the only guides given us, and must be used." ^ When it is apparent upon the face of the deed that the intention was to convey a specific quantity of land, if the courses and dis- tances given would include that precise quantity, but the descrip- tion by fixed monuments would embrace more or less, it is clear tliat the former siiould be followed. To do otherwise would be to defeat the plain intent of the parties.^ 1 Hanson v. Red Rock (S. D.), 57 N. TV. Rep. II ; Yocum v. Haskins, 81 Iowa, 43G, 46 N. W. Rep. 1065. ^ Chinoweth v. Haskell, 3 Pet. 92, 96, per Marshall, C. J. ; Nej^bauer v. Smith, 44 N. J. L. 672 ; Breneiser v. Davis, 134 Pa. St. 1, 19 Atl. Rep. 433; Daler. Trav- ellers' Ins. Co. 89 Ind. 473. 3 White V. Lunin^', 93 U. S. 514; Parks V. Loomis, 6 Gray, 467 ; Eosworth r. Sturtevant, 2 Cush. 393 ; Thatcher v. Ilowland, 2 Met. 41 ; Fitzgerahl r. Bren- nan, 57 Conn. 511, 18 Atl. Rrp. 743; Davis );. Rainsford, 17 Mass. 207 ; Talbot V. Copeland, 32 Me. 251 ; Chandler v. Green, 69 Me. 3.50; Benton v. Mclniire, 64 N. H. .598, 15 Atl. Rep. 413; Buffalo, N. Y. & Eric R. Co. v. Stifreler, 61 N. Y. .348 ; Negbauer v. Smith, 44 N. J. L. 672; Redmond v. Stepp, 100 N. C. 212, 318 6 S. E. Rep. 727 ; Browning v. Atkinson, 37 Tra. 6.33 ; W oods t'. Robinson, 58 Tex. 655 ; Gordon v. Booker, 97 €.nl. 586, 32 Pac. Rep. 593; Hale v. Cottle, 21 Oreg. 580, 28 Pac. Rep. 901 ; Robinson v. Doss, .53 Tex. 496. * Wil.snn V. Hildreth, 118 Ma.ss. 578; Lincoln v. Edgecotnb, 28 Me. 275 ; Den V. Graham, 1 Dev. & B. 76, 27 Am. Dec. 226 ; Boydston v. Siimpter, 78 Tex. 402, 14 S. W. Rep. 906; Gerald i\ Freeman, 68 Tex. 201, 4 S. W. Rep. 256 ; Pagan v. Stoner, 67 Tex. 286, 3 S. W. Rep. 44 ; Booth V. Strippleman, 26 Tex. 436 ; Rand V. Cartwri-ht, 82 Tex. 399, 18 S. W. Rep. 794; Talkin v. Anderson (Tex.), 19 S. W. Rep. 350 ; Gregg r. Hill, 82 Tex. 405, 17 S. W. Rep. 838. '" Cliinoweth v. Haskell, 3 Pet. 92, 96. 6 Damziger v. Boyd, 21 J. & S. 398, GENERAL RULES OF CONSTRUCTION. [§ 385. Where tlie stai'ting-point in a desci'iption is known, or ascer- tained by a survey, but at the time of making the deed the ]y,\v- ties placed a monument in anotlier place as the staiting-point, this must yield to the siiivey and the requirements of the descrip- tion given. ^ The metes and bounds in a description prevail in a conveyance of tlie land " with the buildings thereon," though one of the buildings extends five feet over upon other land of the grantor; the deed does not convey the strip of land covered by the build- ing, or any easement therein.^ But all the calls for monuments must be satisfied if this is reasonably possible.'^ 385. When a monument is named as the point of begin- ning, words descriptive of the locality do not control, except as indicating the general locality of the monument.* Thus in a grant " beginning on the side of Gallon Creek, at a small oak, John Edward's corner," the side of the creek is merely a descrip- tion of the locality. The true point of beginning is the small oak.'^ The starting call of a description, being more important than any other call, usually controls any other call with which it is in conflict, for it is supposed that a mistake in regard to that is less likely to occur. '^ But when the succeeding calls are as readily ascertained, and are as little liable to mistake, they are of equal dignity with the first ; and when all the subsequent calls conflict with the first, and agree with each other, their united testimony controls the point of beginning.' 409; Baldwin v. Brown, 16 N. Y. 359; * Cleaveland v. Smith, 2 Story, 278; Higinbotham v. Stoddard, 72 N. Y. 94; Murray v. Spencer, 88 N. C. 357. Townsend v. Hayt, 51 N. Y. 656; Buf- ^ Bonaparte v. Carter, 106 N. C. 534, falo, N. Y. &Erie R. Co.?-. Stigcler, 61 N. 11 S. E. Hep. 262; Wilson v. Inloes, 6 Y. 348 ; Booth v. Upshur, 26 Tex. 64, 71 ; Cill, 121. Booth V. Strippleman. 26 Tex. 436, 441 ; '■ Hord v. Olivari (Tex.), 5 S. W. Rep. Doe V. Vallejo, 29 Cal. 385. 57. ' I'arkinson v. McQuaid, 54 Wis. 473, ' Stevenson v. Erskine, 99 Mass. 367 ; 11 .\. W. Rep. 682. Walsh v. Hill, 38 Cal. 481 ; Hughes v. 2 Griffiths r. Morrison, 106 N. Y. 165, Cawthom, 35 Fed. Rep. 248; Harry ;•. 12 N. E. Rep. 580. See, also. Old South Graham, 1 Dcv. & B. 76, 79, 47 Am Rep. Soc. ?^. Wainwright, 141 Mass. 443,5 N. 226; Norwood v. Crawford, 114 N. C. E. Rep. 843. 513, 19 S. E. Rep. 349 ; Cowles v. Reavis 8 Miller c. Bryan, 86 N. C. 167 ; Budd 109 N. C. 417, 13 S. E. Rep. 930; Scotr V. Brooke, 3 Gill, 198, 43 Am. Dec. 321. v. Pettigrew, 72 Tex. 321, 12 S. W. Rop. 319 § 38«>.] DKSCHIPTION AND BOUNDARIES. 386. Natural and artificial monuments. — Some of tlie natu- i;il obieots rrferrocl to in deeds as iiioinmuMits ai'e streams, rivers, poiuls, lakes, shores, beaches, rocks, higliways, streets, trees, and hills. ^ Such natural objects serve the same purpose as artificial iiioiiuinciits, and are better because more permanent and more readily ascertained. A call for " the hills" might in many cases be too inilefinite a nionninent ; but if there is a studied repe- tition of this call in several deeds, eti'ect must be given to it, and it will prevail over a call for distance.^ Artilicial monuments are more readily disregarded than natu- ral monuments in favor of other modes of description.-'^ Thus, when it is apparent from the designation of quantity or other elements of description that the courses and distances given are correct, an artificial monument is readily discarded in favor of the description by courses and distances.'* The general rule applies, however, to artificial monuments, though these are less certain than natural monuments.^ A deed of a house and lot in a row or block of houses described the side lines as being " eighty feet, or a fraction more or less." The grantor owned the land only to the depth of about sixty-five feet from the front; and extrinsic evidence showed that at the time of the conveyance a fence ran along the rear of the block of houses at that depth from the fi-ont. It was held that the fence formed a visible boundary and controlled the distance as ex- pressed in the deed, and consequently there was no breach of the covenant of ownership.^ ir.l ; Lancaster v. Ayers (Tex.), 12 S. W. < Baldwin v. Brown, 16 N. Y. 359. Kep. 163. " '" Avers v. Watson, 113 U. S. .594, .5 S. 1 Travellers' In.surance Co. v. Yount, Ct. Kep. 641. 98 Ind. 454 ; Myers v. St. Louis, 82 Mo. « Smith v. Negbauer, 42 N. J. L. 305, 367; Bellows r. Jewell, 60 N. H. 420; 307. "The expression ' house and lot,' Winthrop v. Curtis, 3 Me. 110, 14 Am. used in reference to pri-mises in a titv, or- Dec. 216. dinarily imports a house with a curiilai::e, - Clamorgan v. Baden & St. L. Ry. shut (if from the ueiirhboring {rroumls Co. 72 Mo. 139; Clamorgan v. Hornshy, by some physical objects. Thus the deed 94 Mo. 83, 6 S. W. Rep. 651, 13 Mo. A]ip. bears upon ii.s face iutimation that the 5.iO. land to be conveyed by it is inclosed with- -* Ayers r. Watson, 113 U. S. 594, 5 S. in visible boundaries, and, although the Ct. Rep. 641 ; IJiginbotham v. Stoddard, character of these boundaries be not in- 72 N. Y. 94; Fisher r. Benneboff, 121 dicated in the instrument, nevertheless 111.426, 13 N. E. Rep. 1.50; Wyckoff y. the law permits extrinsic evidence of the Stephenson, 14 Ohio, 13; Fulwood v. actual condition of things for the pup Graham, 1 Rich. 491 ; Reed v. Shenck, 3 pose of ascertaining the situation of th« Dev. 65. land." Per Dixon, J. 320 GENERAL KULES OF CUNS 1 RUC IION. [§ 387. jMoiuiments' erected by the p;irties immediately after a convey- ance have the same effect as if they had been in existence at the time of the conveyance.^ If the monuments themselves have disappeared, the positions where they were placed may be shown, and, when established with reasonable certainty by evidence, they -overn, just as the monuments themselves, had they been found, vouki govern. - A boundary upon a river is a monument which controls coui-ses and distances, as well as the corners and meander lines of a sur- vey.3 A ditch is spoken of as a, natural monument.'* Highwavs, fences, and walls are regarded as artificial monuments when re- ferred to in deeds, and the land conveyed abuts upon them.^ If a fence or wall on or near a boundary line is not called for or mentioned in a deed, there is no pr^-sumption that it was or was not intended for a line. Any inference from the fact is for the jury.^ 387. When dififerent and conflicting monuments are given, tliat which is the most substantial, the most clearly identified, and most certain to be that with reference to which the });irties contracted, must be regarded as controlling.^ The owner of a large tract of land, divided into lots for houses, sold a lot with a house built upon it, bounding it, begiuning at a fence two hun- dred and thirty feet distant, and thence by a line running around the lot, the courses and distances of which were given. One of J Blaney v. Rice, 20 Pick. 62, 32 Am. Dec. 204; Davis v. Rainsford, 17 Muss. 207, 212; Waterman v. Johnson, 1.3 Pick. 261, 267 ; Kennebec Purcha.se a. Tiffany, 1 Me. 219, 10 Am. Dec. 60; Fleisclifresser V. Schmidt, 41 Wis. 22.3. 2 Tnriibnll v. SchroedcM-, 29 Minn. 49, 11 N. W. Rep. 147; Yanish v. Tarhox, 49 Minn. 268, 51 N. W. Rej.. 10.51 ; Ben- ton V. Hor.sley, 71 Ga. 619 ; West v. Shaw, 67 N. C. 483 ; Buford v. Gray, 51 Tex. 331. •i Il.irt.shorn v. Wright, 1 Pet.C.C. 64; D.ivis V. Rainsford, 17 Ma.s.s. 207 ; Sphimt,' V. Moore, 120 Ind. 352, 22 \. K. Rep. 319; Shelton V. Manpin, 16 Mo. 124; Galves- ton County V. Taiikeisley, 39 Tex. 651. ♦ Greenieaf v. Brooklyn, &c. Rv. Co. 3 N. Y. Supp. 222, 8 N. Y. Siipp. 30. VOL. I. 6 Hender.^on v. Hatterman, 146 111. 555, 34 N. E. Rep. 1041 ; Canal Trustees v. Haven, 11 111. 554; Morgan v. Givens (Ky.), 19 S. W. Rep. 582. « Blackington v. Sumner, 69 Me. 136. ■^ Sanborn v. Rice, 129 Mass. 387 ; Hub- bard V. Dusy, 80 Cal. 281, 22 Pac. Rep. 214; Robertson v. Mooney, 1 Tex. Civ. App. 379, 21 S. W. Rep. 143; New York Land Co. r. Votaw, ISO U. S. 24, 14 Sup. Ct. Rep. 1; Zeibold v. Foster, 118 Mo. 349, 24 S. W. Rep. 155. In cases where the known and fixed monuments do not agree wiih each other, the court must of necessity decide them. Fitzgerald v. Biennan, 57 Conn. 511, 18 Atl. Kep. 743 ; Harrell r. Morris (Tex.), 5 S. W. Hep. 625; Roberts i-. Helm, 1 Tex. Civ. App. 100, 20 S. W. Rep. 1004. 321 ass.] DESCRirnON AND BOUNDARIES. the comlitions of tlie coiiveytmoe was tliat the house should oceni)}' the entire width of the lot, and it was recited that the house tlien upon the hit was in coni{)liance with the conditions named. Afterwards the owner sohl the adjoining lionse and lot by a deed containing a siniihir description. It was lield that the centre of the partition wall between the two houses was the true boundary, although the effect of measuring from the fence re- fen-ed to would be to place the whole of the partition wall on the lot last sohl. The house itself was the controlling monument rather than the distant fence. ^ Where there are two conflicting monuments, one of which corresponds with the courses and dis- tances, that one should be taken, and the other rejected as sur- plusage.- When there is conflicting evidence as to natural objects named in running the lines, this is not to be put wholly out of view ; but if the jury, after considering such evidence, are left in doubt, they will be justified in locating the land by referring to such natural objects mentioned as are certain.^ 388. A description by -well-ascertained monuments prevails over a description by reference to the limits of the lands of adjacent owners.^ If a boundary be by the line of a railroad, the line of the railroad becomes a monument and controls the bouiidarv, instead of a line running " to a stake and stones;"^ if the railroad is then located, but not built, a subsequent change of location does not affect the boundary.*^ If there are no monuments or marks upon the ground, a call for the adjoining lands prevails in case there is any discrepancy between such call and the courses and distances given.'' The 1 Sanborn v. Rice, 129 Mass. 387. lily be by the right of way of the road; - Zfihold V. Foster, 118 Mo. 349, 24 but a boundary by the "railroad track," S. W. Rep. 155 ; Jamison v. Fopiano, 48 before any definite right of way had been Mo. 194. secured, is a boundary by the tracli. Rciii 3 New York Land Co. v. Votaw, 150 v. Klein (Ind.), 37 N. E. Rep. 967. And U. S. 24, 14 Sup. Ct. Rep. 1. see Williams v. Savannah, &c. Ry. Co * Benedict v. Gaylord, 11 Conn. 332, 29 (Ga.) 20 S. E. Rep. 487. Am. Dec. 299 ; Clement v. Bank of Rut- « King v. Norfolk & W. R. Co. (Va.) land, 61 Vt. 298, 17 Atl. Rep. 717 ; Smith 17 S. E. Rep. 868. V. Ileadrick, 93 N. C. 210; Thoma.s ;;. ~' Glamorgan v. Horn.sby, 94 Mo. 83, 6 Godfrey, 3 Gill & J. 142, 147; Spreckles S. W. Rep. 651; Stroup v. McClo.'ikey V. Ord, 72 Cal. 86. (Pa.), 10 Atl. Rep. 421, 481 ; Hogans v. 5 Church )•. Stiles, 59 Vt. 642, la Atl. (^arruth, 19 Fla. 84 ; Roane Co. y. Ander- Rep. 674; Miller v. Becler, 25 Til. 163. .'ion Co. 89 Tenn. 259, 14 S. W. Rep 1079; A boundary by a railroad would ordina- Cunningham v. Curtis, 57 N. H. 157. '•'22 GENERAL RULES OF CONSTRUCTION. [§ 388. adjoining land in that case becomes a monument which controls courses and distances.^ The length, of the boundary line upon adjoining land is that named in the deed, if the distance is gfiven.^ When a boundary is " bj' land of " another, the phrase means land belonging to him, and does not include land in wliicli he has simply an easement,^ such as a right of way, and does not in- clude land occupied by him without having the title.'* The true line of the ownership of the adjoining land is the monument, rather than the line marked by possession,'^ or that which the parties supposed was the line at the time the deed was executed ; ^ or that which the adjoining owner had contracted to pui'chase, and had paid the price for, and was occupying as his own, but had received no conveyance of." If the line of the land of the 1 Land Co. v. Saunders, 103 U. S.316; Bryant v. Maine Cent. R. Co. 79 Me. 312, 9 AtL Rep. 736 ; Church v. Stiles, 59 Vt. 642, 10 Atl. Rep. 674; Graybeal v. Pow- ers, 76 N. C. 66 ; Howell v. Merrill, 30 Mich. 282 ; Smith v. Headrick, 93 N. C. 210; Buckner v. Anderson, 111 N. C. 572, 16 S. E. Rep. 424; Smith v. Catlin Land Co. 117 Mo. 438, 22 S. W. Rep. 1083; Whittlesey v. Kdlojrg, 28 Mo. 404; Win- nipisioofpe Paper Co. i\ N. H. Land Co. 59 Fed. Rep. 542. In the last case, a line was described as running south to the " north- west corner of Burton ; thence westerly along the northern line of Watervillc," both parties :i.ssnminir that the north- east corner of Waterville is at the north- west corner of Burton, but it afterwards turns out that the Waterville corner and north line are a substantial distance far- ther south: the grant only goes to the Burton comer, and the southern boun- dary must he run westerly therefrom, and parallel with the north line of Waterville, thus excluding the intervening territory. Land Co. v. Saunders, 103 U. S. 316, dis- tinguished ; Cox V. McGowan (N. C), 21 S. E. Rep. 108. 2 Thomasson ;•. Ilanna (Ky.), 18 S. W. Rep. 227. 3 Segar c Babcock, 18 R. I. 188, 26 Atl. Rep. 257. * Crosby i-. Parker, 4 Mass. 110; Cor- nell V. Jackson, 9 Mete. 150; Cleaveland V. Flagg, 4 Cush. 76 ; Sparhawk v. Bagg, 16 Gray, 583. In Cleaveland v. Elagg a fence had been erected on what was sup- posed to be a dividing line. But Shaw, C. J., said : " Here no fence was alluded to in the deed as a monument. The fence was not set up with a view to make it a monument, and there was no uncertainty respecting the true line. It appears quite certain that H [the grantor] owned up to B's true line, notwithstanding the fence, and, if he did, we think it is beyond doubt that he intended to convey it; indeed, such is the direct effect of the words in his deed." In Jewett r. Ilussey, 70 Me. 433, the same rule is followed, upon the ground that it is safer to adhere to the line marked by ownershij) than to the line marked by possession, which is an indefi- nite guide. See, also, Powers v. Jackson, 50 Cal. 429. 5 Cornell i'. Jackson, 9 Met. 150; Jew- ett V. Hussey, 70 Me. 433 ; Howell v. Merrill, .30 Mich. 282; Umbarger r. Cha- boya, 49 Cal. 525 ; Kellogg v. Mullen, 45 Mo. 571. See Matlack v. Hogue, 13 Pa. Co. Ct. 214. " Umbarger v. Chaboya, 49 Cal. 256. T Crosby V. Parker, 4 Mass. 110; Cor- nell i\ Jackson, 9 Met. 150. 823 § 389.] DESCRIPTION AND BOUNiiAKIKS. iuljoiiiing owner, or a corner of his luiul rcl'errcd to, litis not been cleterniineil, the line or corner is wlierevtM- it may be finally locatt'd.' ir a mistake be made in the nanu> ol" an owner of ad- joining' land, as where the name given is that of the owner's agent insleail of the owner himself, this fact may be shown, and the h'lundaiy is sufHeienliy identified.^ 389. Lines actually run and marked upon the ground con- trol calls for naturid or other fixed Ixamdaries, and calls for adjoin- ing: boundaries and for courses and distances.^ If the stakes and monuments sot at the corners of the parcel in making the survey have disappeared, it is competent to show their location by parol evidence.'* It is presumed that a line in a call frt)m one monu- ment to another is a straight line;^ but this is rebutted when the laniiuaue of the deed shows that a different line was in- 1 Eiison V. Knox, 8 Wash. 642, 36 Pac. Kep. 698; Bailey i-. White, 41 N. H. 337. 2 McKeon r. Milhird, 47 Cal. 581. 3 Burkholder v. Markley, 98 Pa. St. 37 ; Craft V. Yeatiey, 66 Pa. St. 210; Clary v. McGlyrm, 46 Vt. 347; Baxter v. Wilson, 95 N. C. 137; Adams ;;. Alkire, 20 W Va. 480 ; Browning v. Atkinson, 37 Tex. 633; Fitch v. Boyer, 51 Tex. 336; Riley V. Griffin, 16 Ga. 141 ; Moore v. Whit- comb (Tex.), 4 S. W. Rep. 373 ; Duffy. Moore, 68 Tex. 270, 4 S. W. Rep. 530 ; Titterington v. Trees, 78 Tex. 567, 14 S. W. Rep. 692; Fisher v. Bennehoff, 121 111.426,13 N. E. Rep. 150; Watrous y. Morrison, 33 Fhi. 261, 14 So. Rep. 805; King V. Brigham, 19 Oreg. 560, 25 Pac. Re;). 150; Raymond v. Coffey, 5 Oreg. 132; Goodman v. Myrick, 5 Oreg. 65; Lewis V. Lewis, 4 Oreg. 209; Hanson v. Red Rock (S. 1).), 57 N. W. Rep. 11; Pruncr v. Bisbin, 98 Pa. St. 202 ; Yonnkin V. Cowan, 34 Pa. St. 198; Darrah v. Bry- ant, 56 Pa. St. 69; Wharton v. Gavin, 34 Pa. St. 340; Watson v. Jones, 85 Pa. St. 117. Even an unmarked line of one survey, but which can he otherwise identifieii and its true locality established, when called for as one of the intended boundaries of another survey, will prevail over the call for di -ranee when there is a conflict in the 324 two calls. Maddox v. Fenner, 79 Tex. 279, 15 S. W. Rep. 237; Fordtran v. Ellis, 58 Tex. 245 ; Moore v. Reiley, 68 Tex. 668, 5 S. W. Rep. 618; Blaisdell v. Bissell, 6 Pa. St. 258, 259. In this case Gibson, C. J., said : " The calls of a sur- vey, and not its courses and distances, are to govern; and where there are actual lines of demarcation, the compass and chain are no more than instruments to point them out. Where they are not to be found, the results obtained by actual survey are the next best evidence of tiieir location. The mischiefs of a system adopted in an adjoining State, where courses and distances are everything and landmarks nothing, have induced us to cling to our own in all cases. Careless- ness of chain-carriers, roughness of sur- face, variation of the compass, imi)erfec- tion of the instrument, unskilfulncss in the use of it, and other causes not to be enumerated, inevitably produce, in every instance, more or less uncertainty of re- sult ; and, if we suffered ourselves to be governed by the compass and by measure- ment, collisions would be incessant." 4 Turnbiill v. Schroeder, 29 Minn. 49, 11 N. W. Rep. 147. 5 McCoy V. Galloway, 3 Ohio, 282, 17 Am. Dec. 591 ; Smith v. Davi.s, 4 Gratt. 50. GENERAL RULES OF CONSTRUCTION. [§§ 390, 391. tended.^ When a line was actually run and uiarked and corners made, and the maiks and corners can be found, the line will con- trol, although the deed calls for a natural object not reached by such line.2 It is only when the marked lines can be identified on the ground that they will control a call for course and distance.-^ A call for course and distance will control a call for an unmarked line which cannot itself be ascertained except by running the boundaries of another survey according to course and distance.* 390. Corners marked by stakes control courses and dis- tances. Although stakes are monuments liable to be displaced or removed, they control so long as it is certain that they mark the corners of the original survey.^ If a line in the description of land in a deed is given as run- ning a certain distance to a stake and stones, and no such monu- ment exists, the end of the line, in the absence of evidence show- ing a contrary intent, is to be determined by the measurement.*^ In case there is no error or inconsistency in the boundaries described in a deed until the last line is reached, which is declared to run a given course and distance " to the place of beginning," but the given course and distance would not bring it to that point, nor complete the inclosure of any land, the course and dis- tance of the last line should be rejected as erroneous, and effect be given to the more certain designation, " thence to the place of beginning." '' 391. A course or line given in a deed is presumably a 1 Pratt V. Woodward, 32 Cal. 219, 91 * Johnson v. Arcliibald, 78 Tex. 96, 14 Am. Dec. 573 ; Thornberry v. (Miui-chill, S. W. Rep. 266 ; Robertson v. Mooney 4 T. B. Mon. 29, 16 Am. Dec. 12.5. (Tex. Civ. App.), 21 S. W. Rep. 143; 2 Baxter v. Wilson, 95 N. C. 137 ; McAninch v. Freeman, 69 Tex. 445, 4 S. Hedge i-. Sims, 29 Ind. 574 ; Maguire v. W. Rep. 369 ; Baker r. Light, 80 Tex. Rturtevant, 140 Mass. 258, 5 N. E. Rep. 627, 16 S. W. Rep. 330; Gerald v. Free- 644. man, 68 Tex. 201, 4 S. W. Rep. 2.56; ^ Darrah v. liryant, .^ Pa. St. 69 ; Duff v. Moore, 68 Tex. 270, 4 S. W. Uep. Mathers y. Ilegarty, 37 Pa. St. 64 ; Qiiinn 530; Davidson u. Killen, 68 'I'ex. 406,4 i;. Heart, 43 Pa. St. 337 ; Fagan v. Stoner, S. W. Rep. 561. 67 Tex. 286, 3 S. W. Rep. 44 ; Browning ^ Jones v. Pouiidstone, 102 Mo. 240, 14 V. Atkinson, 37 Tex. 633 ; Duff v. Moore, S. W. Rep. 824. 68 Tex. 270; Moore r. Whitcomb (Tex.), « Wil.son v. Hildretli, 118 Mass. 578; 4 S. W. Rep. 373 ; Ratliff v. Burleson Lincoln v. Edgecomh, 28 Me. 275 ; Meade (Tex. Civ. App), 25 S. W. Rei). 983; v. Land Co. (Tex. Civ. App.) 22 S. W. Bovdston r. Sumptcr, 78 Tex. 402, 14 Rep. 298. S. "W. Rep. 996 ; Reed v. Marsh, 8 Ohio, " Owings v. Freeman, 48 Minn. 483, 51 147 N. W. Rep. 477. 325 §^ 39'2, 393.] dksckii'Hon and boundaries. straight line ;' but tliis pnvsiuuplion (Iocs not liold wlien there is anything to show lh;vt tiie cours;^ is to be deterni'uunl by a fixed monument, sucli as a wall; and even a line extending beyond the line (^f such wall may be deflected from a straight line in order to conform to the distance given for the next boundary line.'-^ A line should if possible be construed to be a continuous line."^ 392. A call for another and older survey will be taken to be the correct boundary, and the location will extend to such survey when no material excess of land is shown.* A call for another survey definitely located is properly ignored where, if followed, it necessitates a total disregard of course and distance, and causes the remaining bounds to conflict with other surveys, and to make the quantity of land very different from that called for.^ 393. A line defined by monuments usually runs to the centre of such monuments, unless the monuments be structures such as a house, which ordinarily includes the land it stands upon.6 Mr. Justice Gray, after referring to the rule that a boun- dary by a way passes the title to the middle of the way, and that a boundary by a river above tide-water passes the fee in the soil to the thread of the river, unless there is some expression of a contrary intention, states the general rule of construction thus : '^ " Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made part, as a house, a mill, a wharf, or the like, the side of the land or structure referred to as a boundary is the limit of the grant ; but when the boundary line is simply by an object, whether natural or artificial, the name of which is used 1 Henshaw /;. Mullens, 121 Mass. 14.3; * Moore v. Reiley, 68 Tex. 668, 5 S. W. Jenks V. Morgan, 6 Gray, 448; Dickson Rep. 618. V. Wilson, 82 N. C. 487 ; Mains v- Rains ^ Gregg v. Hill, 82 Tex. 405, 17 S. W. (Kv.), 20 S. W. Rep. 1099. Rep. 838 ; Boon v. Hunter, 62 Tex. 582 ; 2 Ladies' Friend See. v. Halstead, 58 Duff r. Moore, 68 Tex. 270,4 S. W. Rep. Conn. 144, 19 Atl. Rep. 658 ; Kingsland r. 5-30; Gerald r. Freeman, 68 Tex. 201,4 Chittenden, 6 Lans. 15; Seneca Nation y. S. W. Rep. 256; Freeman v. Mahouey, Hugabooni, 132 N. Y. 492, 30 N. E. Rep. 57 Tex. 621. 983 ; Lou- v. Long, 73 N. C. 370 ; Dick- « White's Bank v. Nichols, 64 N. Y. 65, son V. Wilson, 82 N. C. 487. 71, per Allen, J. 8 Gallatin Turnpike Co. v. State, 16 " Boston v. Richardson, 13 Allen, 146. Lea, 36; Grand Co. v. Larimer Co. 9 And see Stewart v. Patrick, 68 N. Y. Colo. 268. 450. 326 GENERAL RULES OF CONSTRUCriON. [§ 3i'4. in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not in its description or nature include the earth as far down as the grantor owns, and yet which has width, as in the case of a way, a river, a ditch, a wall, a fence, a tree, or a stake and stones, then the centre of the thing so run- ning over or standing on the land is the boundary of the lot granted." 394. When a boundary is by a building, -whether the boun- dary line is wholly outside of every portion of the building is a question upon which there is a conflict of authority. Tlius in one case, whei-e a deed described one of the boundaries of the land as four feet from the " northerly side " of a building, the boundary was held to be four feet from the exti'emest part of the building, which in that case was the edge of the eaves. ^ But in another case, where a deed described one of the boundaries as eight feet four inches from the " south side " of a building, an- other court held that measurement should be made from the corner-board on the side of the building.^ The decision first stated seems to be the better one in the case of a boundary by a building. The parties niay well be presumed to intend that the boundary line shall be wholly on one side of every portion of the building ; for it would be unreasonable to assume that the parties to the conveyance intended that the main portion of the building should be on one side of the line, and the cornices, and other projecting finish, on the other.'^ This inference, however, may be controlled by other expressions in the deed, or rebutted by competent evidence showing a practical location by the parties, or working an estoppel of the plaintiff.* But however this may be, in the case of a right of way, even if created by express grant, it is not an unreasonable presumption that such way was intended to extend under the projecting finish of a building.^ ' Millett V. Fowlc, 8 Cush. MiO. To "on a str.aif^ht line to the shop," it was like effect, Meeks v. Wiliard (N. J.), 29 hold that the line ran to tlie corner of a All. Itej). .318. ))latf<)rni which was a jjan of the hiiild- ^ CitlniH r. Bradford, 51 Me. 414. iiii,^ cither jiernianent or temporary. Dun- 8 Farnsworth v. Rockland, 8.3 ISIe. .508, ham v. Gannett, 126 Mass. 151. 22 At). Ilcp. 394, per Walton, J. ; Meeks * Meeks v. Willard (N. J.), 29 Atl. Kep. V. Willard (N. .1 ), 29 Atl. IJep. 318. 318. Where the hound of a way w.is do- '" Farnsworth v. Rockland, 83 Mc. 508, scribed as runnining a line as running at right angles to a creek or other stream of water is not on its face void for uncertainty, in the absence of anything to show that the creek does not rim in a straight course, or that a straight line drawn along the thread of the stream would not intersect tlie beginning point. A perpen- dicular line drawn from this base line would answer the call in the deed.2 A call in a deed for a line running from a street at rio'ht ancrles thereto is not varied because the n''xt call is for a distance of thirty' feet, more or less, from the end of the line to a monument, when in fact the end of the line run at right angles is thirty-three feet and six inches from the monument.* Where a boundary line is to run to an extended line, such as a rivei-, a swamp, or the line of another tract of land, such line must run to the nearest point on such river, swamp, or line of anoth(M- tract; and in carrying out this rule, even a call for a course and distance oiilv coniices, but small balconies and bay- such a case the structure would be a pub- wiiiclcjws, ofteu overhanfi; sidewalks ; and, lie nuisance, and its vemoval could be if thi-y do not in any way interfere with coini)elled." or incommode the public travel, such i Hall v. Eaton, 139 Ma^s. 217, 29 N. structures are not unlawful. The owner E. Rep. 660; Noble y. Goo<,'ins, 99 Mass. of land over which a public way passes 231. has a right to occupy the land above and - Preston r. Bowniar, 6 Wheat. 580, below its surface to any extent that "ill per Story, J. not impair its usefulness for a way. Of •' Irwin v. Townc, 42 Cal. 326 ; Hicks course a i)ay-window, or a balcony, or a v. ('olcniaii, 2.^) Cal. 122, 143, 8.5 Am. Dec. cornice even, may be so low down, and 103. ])roject so far into a street, as to obstruct ^ Piatt v. Bente, 49 N. J. L. 679, 10 or incommode the ])ublic travel ; and in Atl. Hep. 283. 328 GENERAL RULES OF CONSTRUCTION. [§§ 396-398. will be disregarded.! The course of a line beginning at a street or any other extended boundary line is presumed to be at a right angle to the street when the angle is not specified. 396. Parallel lines are strictly and usually straight lines ; but sometimes lines which are not straight are so designated.^ Thus a line may be described ;is parallel to a winding river. 397. The terms '••north," "south," ''east," and '-west," or "northerly,"" '-southerly," "easterly," and " westerly, ' when not controlled by definite coui'ses. monuments, or other definite dt scriptions, mean due north, south, east, or west.^^ But these and similar terms must always yield to monuments and other defi- nite calls."* Thus the word " northerly " in the description in a deed, where there is no object to direct its course, must be taken to mean due north ; but when there are monuments to which it is applicable, it may have its legitimate meaning and full force, and yet the course may incline either way any distance, provided it tends towards the north. ■'' 398. Estimates of quantity are usually subordinate both to monuments and to courses and distances, unless it appears that the intention of the parties was that an exact quantity of land should be granted. A statement of the quantity, in the ab- sence of an express covenant that the land conveyed contains that quantity, has very little weight when the deed contains an accu- rate description b}^ permanent boundaries capable of being ascer- tained.^ Tliis is particularly the case where the words "more or 1 Allen V. Sallinger, 108 N. C. 159, 12 ^ Foster v. Fos.s, 77 Me. 279; Segar v. S. E. Rep. 896; Austrian v. Davidson, 21 Bahcock, 18 R. I. 188, 26 Atl. Rep. 257; Minn. 117. Garvin ;•. Dean, 115 Mass. 577; Cunning- 2 Fratt I'. Woodward, 32 Cal. 219, 91 ham v. Vnrnn, ru N. II. 157; Brandt v. Am. Dec. 573; Hicks v. Coleman, 25 Ogden, 1 .Toliiis. 156. Cal. 122, 143, 85 Am. Dec. 103. « Llewellyn v. Jcr.sey, 11 Mees. & W. •■^ Brandt r. Ogden, 1 John.s. 156 ; Jack- 183; Jackson v. Sprague, 1 Paine, 494 ; son V. Reeves, 3 Caincs, 293 ; Fratt v. Field v. Columbct, 4 Sawyer, 523 ; Ayers Woodward, 32 Cal. 219, 91 Am. Dec. 573 ; v. Watson, 1 13 U. S. 594, 5 S. Ct. Rep. 641 . Bosworth r. Danzien, 25 Cal. 296; Fari.s Alabama: Hess v. Cheney, 83 Ala. 251, 3 V Plielan, 39 Cal. 612; Irwin v. Towne, So. Rep. 791 ; Rogers v. Peebles, 72 Ala. 42 Cal. 326, 334; Martin ?;. Lloyd, 94 Cal. 529; Wright v. Wright, 34 Ala. 194. 105, 29 Pac. Rep. 491 ; Currier v. Nelson. Arkansas : Phillips v. Porter, 3 Ark. 18, 96 Cal. .505, 31 Pac. Rep. 531 ; Reed r. 36 Am. Dec. 448. California: Winans Tacoma Build. Asso. 2 Wash. 198, 26 ;•. Cheney, 55 Cal. 567 : Stanley r. Grem, Pae. Rep. 252. 12 Cal. 148. Connecticut : Belden y. Sey- ■' Irwin V. Towne, 42 Cal. 326; Moss v. mtmr, 8 Conn. 19; Snow v. Chapman, 1 Shear, 30 Cal. 467. Root, 528; Nichols v. Tnrney, 15 Conn. 329 § o99.] DESCRIPTION AND BOUNDARIES. less" are addetl.^ The quantity is the least part of the descrip- tion, and must yield to the description by boundaries. Parol evidence is not admissible to determine whether the words relating to quantity are descriptive merely, or are used as a warranty of quantity. The meaning of the words used must he sought in the deed and not elsewheri^.'-^ The deed may even make quantity the controlling element in the description, as whert' a deed, after describing Llie land by courses and distances, declared tliat " said tract shall contain just one acre, and the distances shall be so construed." -^ 399. But when the boundaries of a parcel are definite, a statement of the quantity of the land does not generally have 101. Delaware : Dale v. Smith, 1 Del. Ch. 1, 12 Am. Dec. 64. Florida: Au- dieu V. Watkiiis, 26 Fla. 390, 7 So. Rep. 876. Georgia: Beuton v. lIor.^ley, 71 Ga. 619; Harris v. Hull, 70 Ga. 831. Illinois: Stevens v. Wait, 112 111. 544; Cottingham v. Parr, 93 111. 233; Wad- hams V. Swan, 109 111. 46. Iowa: Uf- ford y. Wilkins, 33 Iowa, 110. Kansas: Armstrong v. Browufield, 32 Ivans. 116, 4 Pac. Rep. 1 85. Maine : Clark v. Scam- mon, 62 Me. 47 ; Allen v. Allen, 14 Me. 387; Chandler v. McCard, 38 Me. 564. Maryland: Hail v. Mayhew, 15 Md. 551. Massachusetts : Powell v. Clark, 5 Mns.s. 355, 4 Am. Dec. 67. Michigan : Moran V. Lczotte, 54 Mich. 83, 88, 19 N. W. Rep. 757, per Cooley, C. J. Minnesota : Turn- bull V. Schroeder, 29 Minn. 49, 11 N. W. Rep. 147. Missouri: Baker i>. Clay, 101 Mo. 553, 14 S. W. Rep. 734 ; Campbell i: Johnson, 44 Mo. 247 ; Ware v. Johnson, 66 Mo. 662. New Jersey : Fuller v. Carr, 33 N. J. L. 157. New York : Case v. Dex- ter, 106 N. Y. 548, 13 N. E. Rep. 449 ; Thayer v. Finton, 108 N. Y. 394, 15 N. F. Rep. 615; Jackson v. McConndl, 19 Wend. 175; Jackson v. Moore, 6 Cow. 706; Baldwin v. Brown, 16 N. Y. 359; Mann v. Pearson, 2 Johns. 37 ; Hathaway V. Power, 6 Hill, 453. Oregon : K'aymond V. Coffrey, 5 Oreg, 132. Pennsylvania: Large v. Penn, 6 S. & R. 488. Rhode Island: Doyle v. Mellen, 15 R. I. 'y23, 8 ,\!l. licp. 700. South Caroline. : Fu'uotid H:]0 V. Graham, 1 Rich. 491. In Baynard v. Eddings, 2 Strob. 374, it is said : " It is seldom that quantity is of much weight in a question of location." In Gourdin V. Davis, 2 Rich. 481, O'Neall, J., said : " I deny that quantity has ever been re- garded as a certainty in a deed. It is al- together too uncertain a matter to have such an effect." Tennessee : Miller v. Beutley, 5 Sneed, 671. Texas : Dalton v. Rust, 22 Tex. 133; Hatch v. Garza, 22 Tex. 176 ; Hunter v. Morse, 49 Tex. 219 ; Rand u. Cartwright, 82 Tex. 399, 18 S. W. Rep. 794. Vermont : Grand Tiunk Ry. Co. V. Dyer, 49 Vt. 74. Wisconsin : Bioux V. Cormier, 75 Wis. 566, 44 N. W. Rep. 654. 1 Kennedy v. Boykin, 35 S. C. 61, 14 S. E. Rep. 809. As far back as 1818, Nott, J., said, in Executors of Peay v. Briggs, 2 Mill Const. 98, recognized in the more recent case of Bratton v. Claw- son, 3 Strob. 127, 130, " that where a per- son purchases land by metes and bounds, represented to contain a certain number of acres ' more or less,' he is entitled to re- cover all the lands within the prescribed limits, whatever the number of acres may be. It must be apparent from the words ' more or less ' that the metes and bounds are to govern, and not the number of acres." 2 Hess V. Cheney, 83 Ala. 251 , 3 So. Rep 791 ; Winston v. Browning, 61 Ala. 80. ^ Sanders v. Godding, 45 Iowa, 463. GENERAL RULES OF CONSIRUCTION. [§ 400. any effect. Such statement is considered merely as descrip- tive, and, as the quantity is the least certain part of the description, that must yield to the boundaries, or other definite description by name or number, or by map or survey. ^ The most material and particular part of the description controls that which is less natural and certain. It is only in the absence of monuments, courses, and distances that the quantity of land named in the deed will govern.- 400. The call for quantity may be resorted to for the pur- pose of making that certain "which otherwise would be uncer- tain, and especially is this the case when the lands are described by sectional subdivisions.'^ The call for quantity may aid the 1 Fuller V. Carr, 33 N. J. L. 157 ; Rich- wine V. Jones (Ind.), 39 N. E. Rep. 460; Silver Creek Cement Co. v. Union Lime Co. 138 lud. 297, 35 N. E. Rep. 125; Thayer v. Fiuton, 108 N. Y. 394, 15 N. E. Rep. 615; Jackson v. McConuell, 19 Wend. 175 ; Jackson v. Moore, 6 Cow. 706 ; Arden V. Thompson, 5 Cow. 371 ; An- il lews !'. Pearson, 68 Me. 19 ; Borken- hagen v. Vianden, 82 Wis. 206, 52 N. W. Rep. 260; Doctor v. Furch, 76 Wis. 153, 44 N. W. Rep. 648 ; Scull c Pi uden, 92 iS". C. 168; Rogers v. Peebles, 72 Ala. 529 ; Hess v. Cheney, 83 Ala. 251, 3 So. Rep. 791 ; Hunter v. Hume, 88 Va. 24, 13 S. E. Rep. 305 ; Ayers v. Harris, 77 Tex. 108, 13 S. W. Rep. 768; Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. Rep. 880. In Baker v. Light, 80 Tex. 627, 16 S. W. Rep. 330, the deed was of " 400 acres, more or less, out of the southeast corner" of a certain survey, and described the tract conveyed by metes and bounds, courses and distances. Accordinsj to the courses and distances, the land conveyed did not reach to the east line of the sur- vey. It was proved that, when the tract conveyed was surveyed, the east line of the survey could not be found, and that the surveyor only established the west corners of the tract. The position of tliese cor- ners was not disputed. Althous:li there were 400 acres within ilie courses and dis- tances named in the deeil.the deed [lassed title to all the land I)etween ilu' we^t cor- ners of the tract and the east line of the survey. 2 Allen V. Kersey, 104 Ind. 1, 3 N. E. Rep. 557 ; Silver Creek Cement Co. v. Union Lime Co. 138 Ind. 297, 35 N. E. Rep. 125. '^ Field V. Columbet, 4 Sawyer., 523 ; Morton v. Root, 2 Dill. 312; White v. Liming, 93 U. S. 514 ; Baldwin v. Brown, 16 N. Y. 359; Hipiubotham v. Stoddard, 72 N. Y. 94 ; Buffalo, New York & Erie R. Co. V. Sti^ieler, 61 N. Y. 348 ; Davis r. Raiusford, 17 Mass. 207 ; Davis v. Hess, 103 Mo. 31, 15 S. W. Rep. 324 ; Burnett V. McCluey, 78 Mo. 676 ; Prior r. Scott, 87 Mo. 303 ; Wolfe v. Dyer, 95 Mu. 545, 8 S. W. Rep. 551 ; Davis v. Rainsford, 17 Mass. 207 ; Hall v. Shotwell, 66 Cal. 379, 5 Pac. Rep. 683 ; Winans v. Cheney, 55 Cal. 567 ; Baxter v. Wilson, 95 N. C. 137 ; Hicks V. Coleman, 25 CaL 122, 85 Am. Dec. 103 ; Hoffman v. Port Huron (Mich.), 60 N. W. Rep. 831 ; Moran v. Lezotte, .54 Mich. 83, 19 N. AV. Rep. 757; Kirk- land V. Way, 3 Rich. 4, 45 Am. Dec. 752; Campbell v. Carruth, 32 Fla. 264, 13 So. Rep. 4.32 ; Bowen v. I'rout, 52 111. 354; Smiley v. Fries, 104 111. 416; Pen- nington V. Flock, 93 Ind. 378; Enochs i\ .Miller, 60 Miss. 19 ; Dorr v. School Dist. 40 Ark. 237 ; Andrews v. Murphy, 12 Ga. 431 ; Jones v. Motley (Ky.), 13 S. W. Rep. 432; Hale r. Cottle, 21 Ore;;. 580, 28 Pac. Rcj). 901 ; Welder v. Hunt, 34 Tex. 44. 331 s^ 4i>l.J DESCKIl'TION AND BOUNDARIES. description, but gene rally has no controlling- (.■ft'ect. The call for quantity may serve to show that the courses antl »listauces are right, and that a further description by visible monuments is wiong. Thus, wlien it is apparent upon the face of a deed that the intention was to convey a specific quantity of lands, and the courses and distances give that precise quantity, but the tlescrip- tion by fixed monuments would embrace more or less than that quantity, it is clear that the desciiplion by courses and distances should be followed. ^ When one of the boundaries is uncertain, upon an issue as to the location of one of the lines the jury should be instructed to take into consideration the quantity of land granted ; and they should not be instructed that the quantity is innnaterial if the boundaries can be fixed in harmony with the calls of the survey.^ 401. Quantity is sometimes an essential part of the de- scription. Thus, where a deed conveys a given quantity of land, and describes it as bounded on a stream on one side, starting front a point named, and containing a certain number of acres in a square form, all the boundaries may be determined by the quan- tity given and the location on the stream. ^ There are numerous cases in which the quantity has been given controlling effect. Each case has been decided upon its own merits; the only general rule being that, if possible, effect shall be given to the intent of the parties, if this can be ascertained.^ A grant of a mine with one thousand acres of land "around, circumjacent, and adjoining said mine," the grantor owning a larger tract, may according to the Califoinia decisions be lo- cated in a square form around the mine, taking the mine as the centre of the location.'^ By statute in some States, sales for the payment of taxes are 1 Baldwin v. Brown, 16 N. Y. 359 ; Hig- Iwtham r. Stoddnnl. 72 N. Y. 94; Mov.m inbotham v. Stoddard, 72 N. Y. 94; Biif- v. Lezotte, 54 Mich. 83, 19 N. W. Rep. falo, N. Y. & E. K. Co. r. Stigeler, 61 N. 757 ; Bell «. Sawyer, 32 N. H. 72 ; Wliite Y. 348; Danzi{,'er v. Bovd, 21 J. & S. v. Gay, 9 N. IL 126, 3 Am. Dec. 224; 398; McClintock v. Ko-ers, 11 111. 279. Rioiix v. Cormier, 75 Wis. 566, 44 N. \V. ■^ Scott y. Pettigrew, 72 Tex. 321, 12 Rep. 654 ; Lipscomb y. Underwood (Tex. S. W. Rep. 161. Civ. App.), 27 S. W. Kep. 155 ; Slack v. 3 Hail c. Shotwell, 66 Cal. 379, 5 I'ac. Dawes, 3 Tex. Civ. App. 520, 22 S. W. Rep. 683 ; Ilicks v. Coleman, 25 Cal. 122, Rep. 10.53. 85 Am. Dec. 1(!3. 5 Santa Clara M. A.>so. v. Qnicksil- ■' Herrick v. Sixby, L. R. 1 P. (". 4.'36 ; ver M. Co. 8 Sawyer, 330, 17 Fed. Rep. Baldwin v. Browu, 16 N. Y. 359 ; Ilij^iu- 657. > ' €> O GENERAL RULES OF CONSTRUCTION. [§ 402. made of so much of the land subject to the tax as will suffice to pay the amount of the tax, and the land sold is frequenily described as being in a square form in a certain part or corner of the assessed land. Of course the quantity in such case largely controls tlie description.^ 402. A grant of a part of a section or lot of land is void -when the particular part is not indicated ; - but a grant of the south j)ii-i"t of a subdivision of a government section of land con- taining a certain number of acres is sufficiently certain, inas- much as the quantity of land specified may be laid off in a strip of equal depth on the soutliern boundary of the subdivision named.^ If the land conveyed be a certain number of acres in a certain corner of a section nauied, enough land may be selected in such corner, in a square bounded by four equal sides, to satisfy the call for quantify.^ A description as *■' the southeast part of a quarter section con- taining thirty-two acres " is insufficient, because it is impossible to determine whether the form of the parcel should be a square or some other shape ; ^ though thei-e are numerous decisions that such a description is sufficient, as the land is to be laid off in such case in the form of a square.^ A grant of a hundred acres out of a 1 Hansee v. Mead, 27 Hun, 162. 2 Mutual Build. Asso. v. Wyeth (Ala.), 17 So. Rep. 45 ; Wilkinson v. Roper, 74 Ala. 140; Adams v. Edgerton, 48 Ark. 419, 3 S. W. Rep. 628 ; I^oberts v. Deeds, 57 Iowa, 320, 10 N. W. Rep. 740 ; Collins V. Storm, 75 Ion a, 36, 39 N. W. Rep. 161 ; Moulton V. Egery, 75 Me. 485 ; Tierney V. Brown, 65 Miss. 563, 5 So. Rep. 104; Cogburn v. Hunt, 54 Miss. 675 ; Dingey V. Paxton, 60 .Miss. 1038; Plenny v. Fer- rell (Mi's), 11 So. Rep. 0; Goodhar v. Dunn, 61 Miss. 618; Campbell v. Johnson, 44 Mo. 247 ; Blow v. Vaughan, 105 N. C. 198, 10 S. E. Rep. 891 ; Miz/cll r. Riiffin, 113 N. C. 21, IS S. K. Rep. 72 ; McGlaw- ihorn V. Worthing ion, 98 N. C. 199, 3 S. E. Rep. 633 ; Overand v. Menczer, 83 Te.\. 122, 18 So. Rep. 301 ; Tram Lumber Co. V. Hancock, 70 Tex. 312, 7 S. W. Rep. 724 ; Morse r. Stockman, 73 Wis. 89, 40 N. W. Rep. 679. 2 Tierney i'. Brown, 65 Miss. 563, 5 So. Rep. 104; Goodbar v. Dunn, 61 Miss. 618; Enochs v. Miller, 60 Miss. 19; Me- Cready i'. Lansdale, 58 Miss. 877 ; Cox v. Hayes, 64 Cal. 32, 27 Rac. Rep. 785 ; Soukup V. Union Inv. Co. 84 Iowa, 448, 51 N. W. Rep. 167; Watson v. Crutciier, 56 Ark. 44, 19 S. W. Rep. 98. * Wilkinson v. Hoper, 74 Ala. 140; Bybee v. Hageman, 66 111. 519; Walsh ?;. RingiT, 2 Ohio, 327, 15 Am. Dec. 555 ; G<)odl)ar V. Dunn, 61 Miss. 618; Lego v. Medley, 79 Wis. 211,48 N. W. Rep. 375; Smith r. Nelson, 110 Mo. 552, 19 S. W. Rep. 734; McCartney u. Dennison (Cal.), 35 I'ac. Rep. 706. 5 Shoemaker v. McMoniglc, 86 Ind. 421 ; Buchanan v. Wliithiun, ."6 Ind 257 ; White V. Hyatt, 40 Ind. 3S5. And sec Schattler v. Cassinelli, 56 Ark. 172, 19 S. W. Rep. 746 ; Stewart r. A ten, 5 Ohio St. 257. ^ McCartney v. Dennison (Cal.), 35 Pac. Rep. 766; Lovejoy v. Gaskill, 30 §§ 403, 404.] DESCRIPTION AND BOUNDARIES. larger tract Ji^scribod, '' it being tlie ensterninost portion of the farm," nuiy be located by running a line due north and south intersecting the boundaries of the farm, and including the given area to the east of sucli line.^ A grant of '' sixteen feet of the north end " of a lot described is not so uncertain as to render the grant void.^ 403. A right given the vendee to select a definite number of acres of land out of a larger tract affords the means of rendering the description certain,^ but no title passes until the selection is made. The deed itself only gives the right to make the selec- tion, and to enforce a conveyance of the land that may be chosen in the mannei' provided by the deed.^ A deed with a blank description is of course void, but the grantor may authorize his agent to select the land and fill in the description, though, if this be not done in the lifetime of the grantor, the deed is void. If the grantee enters into possession under such a deed, this may be used as evidence of the character of his possession.^ A deed of land located by a general description, with a direc- tion that a certain quantity of land so described is to be surveyed by a surveyor designated and the field-notes attached to the deed, is not void for indefiniteness if the survey be made and the field- notes attached as provided.^ 404. A conveyance of a definite quantity of land out of a larger tract -well described, but without locating the land thus conveyed, is construed as conveying a proportionate undivided interest in the larger tract, provided the deed does not purport specifieallv to describe the smaller tract so conveyed, nor attempt to do so with any certainty.'^ But if the deed attempts to de- Minn. 137, 14 N. W. Rep. 583; Smith v. mack, 1 Tex. Civ. App. Cas. 3.54, 20 S. Nelson, 110 Mo. 552, 19 S. W. Rep 734; W. Rep. 9.50. Wilkinson i-. Roper, 74 Ala. 140; Sou- ■• Dull r. Blum, C8 Tex. 299, 4 S. W. kup V. Union Inve.stmcnt Co. 84 Iowa, Rep. 489. 448, 51 N. W. Rep. 167 ; Walsh w. Ringer, ^ Tarrant Co. v. McLemore (Tex.), 8 2 Ohio, .327. S. W. Rep. 94. 1 Warren v. Makely, 85 N. C. 12. e Nye v. Moody, 70 Tex. 434, 8 S. W. 2 Vaughn v. Schmalsle, 10 Mont. 186, Rep. 606. 25 Pac. Rep. 102. ' Gibbs n. Swift, 12 Cush. 393; Brown 3 Corbin v. .lackson, 14 Wend. 619, 28 v. Bailey, 1 Met. 2.54; Cullen v. Sprigg, Am. Dec. 550; Nye v. Moody, 70 Tex. 83 Cal. 56, 23 Rac. Rep. 222, 224; Schenk 434, 8 S. W. Rep. 606; Dohoney v. Wo- v. Evoy, 24 Cal. 104; Grogan v. Vache, 45 Cal. 610; Lawrence v. Ballou, 37 CaJ. 834 GENERAL RULES OF CONSTRUCTION. [§ 405. scribe a specific part of the larger tract, but fails to give sufficient description to convey that part, the deed does not convey any un- divided interest in the whole tract, tliongli the quantity intended to be conveyed is given. ^ A deed describing the premises con- veyed as being all of a designated tract not conveyed by the grantor to a third party named is insufficient of itself, and with- out proof as to what part of the tract had not been conveyed to the third person, to show title to any part of such lands in lite grantee.2 But such a deed is rendered certain in its description b}- showing what part of the whole tract had been conveyed ; and said deed is sufficient to convev the remaining land as asainst a subsequent purchaser for value without notice.'^ A deed wliich conveys a certain number of acres on the north side of a lot of land, described by its number, the lot being a square, is sufficiently certain to embrace such a paral- lelogram as would result from drawing a line across the lot, par- allel with its northern boundary, so as to cut off the required quantity."* 405. The word, "half," when used in describing land, should be construed as meaning "half in quantity," unless the context or surrounding facts and circumstances show a coistrary intention. It was so held in a case where two tenants in com- mon of a parcel of land, which could not be equally divided by a north and south line drawn equidistant from its east and west lines, conveyed to each otiier the "east half "and "west half" re- spectively of said parcel, containing an equal number of acres, and without reference to the "government survey."^ But in government surveys of the public lands the terms " east 518 ; Lick v. O'Donnell, 3 Cal. 60, 58 Am. 76 Am. Dec. 53 ; Roth v. Gabbert (Mo.), Dec. 383 ; Wallace v. Miller, 52 Cul. 65.') ; 27 S. W. Hep. 528. Pipkin V. Allen, 29 Mo. 229; McAfee v. ^ Maier v. Josliu, 46 Minn. 228, 48 N. Arline, 83 Ga. 645, 10 S. E. Rep. 441 ; W. Rep. 909. Jackson v. Livinj^ston, 7 Wend. 136 ; Cor- 3 Baker v. Clay, 101 Mo. 553, 14 S. W. bin V. Jackson, 14 Wend. 619; Shcafe v. Rep. 734. Wait, 30 Vt. 735 ; Dohoney v. Womack, * Gress Lumber Co. v. Coody (Ga.), 21 1 Tex. Civ. App. 354, 19 S. W. Rep. 883, S E. Rep. 217 ; Cobb v. Taylor, 133 Ind. 20 S. W. Rep. 950; Linnartz v. McCul- 605, 33 N. E. Rep. 615. loch (Tex. Civ. App.), 27 S.W. Rep. 279; 5 Jone.s r. I'ashby, 62 Mich. 614, 29 Slack I'. Dawes (Tex. Civ. App.), 22 S. N. W. Rep. 374; Dart v. Barbour, 32 \V. Rep. 1053. Mich. 267 ; An Gre.s Boom Co. v. Whit- 1 Grogan v. Vaehe, 45 Cal. 610 ; Dwyie ney, 26 Midi. 42 ; Farley v. Deslonde, 69 V. Speer (Tex. Civ. App.), 27 S. W. Rep. 'lex. I.^)R, 6 S. W. Rep. 786. 585; Wofford v. McKinna, 23 Tex. 36, 335 §§ 400, 407.] DESCRIPTION AND BOUNDARIES. lialt"* ami '• west Iiall' "" ai(! uiscd, uol with let'rrence to (luaiitity, but to a liiu' t'ljuiilistaiit Iroiii tlu' Ixui ilarv linens ol" the [)aicel subdivitU'Ll, and those terms liave tlie same siguiiication in patents issued by tlie government ; and this is true because so proviik'd by net. of Congiess. A deed of the "east half" of a parcel of land "aeeortling to the Uniteil States survey" is definite, and excludes the idea of two equal quantities, and fixes the dividing Hue equidistant from the boundary lines of the parcel thus sub- divided.i In the description of land under government surveys, if part of a section or of a quarter section be described as the " north side " or the " north end," the words may be taken to mean the north half of the section or quarter section.- 406. The word "part" may be so used as to show that it means ''half; "^ but it may be so used that it is uncertain what meaning is attached to it, and in that case the description will be insufficient.^ Thus a conveyance of a pait of a certain bounty warrant is void for uncertainty as to the part of the certificate sold.'^ 407. The Words " more or less," after a statement of the quantity, are intended to cover only a I'easonable excess or deficit. If the difference is very great, it is evidence of a mistake which a court of equity may correct. The presence of these words does not imply that the purchaser takes the risk of the quantity. If the variation is slight, the purchaser has no remedy; but if the variation is large or material, he may be relieved from paying foi- the deficient quantity .•" The use of these words does not bar an inquiry into a fraud or misrepresentation as to quantity on 1 Jones V. Pashby, 62 Mich. 614, 29 5 Curdy v. Stafford (Tex. Civ. App.), N. W. Rep. 374, 48 Mich. 634, 12 N. W. 27 S. W. Kep. 823. Rep. 884. 6 Belknap v. Sealey, 14 N. Y. 143, 67 2 Winslow );. Cooper, 104 111. 235; Am. Dec. 120; Blaney y. Rice, 20 Pick. Chiuiqiiy c. People, 78 111. 570. 62, .^2 Am. Dec. 204 ; Hosleton v. Dick- ^ Soukup V. Union Inv. Co. 84 Iowa, insoii, 51 Iowa, 244, 1 N. W. Rep. S.'jO; 448, 51 N. W. Rep. 167. The de,«cript on Williamson v. Hall, 62 Mo. 405 ; Estes ;;. was: "West part N. E. quarter, N. W. Odoin, 91 Ga. 600, 18 S. E. Rep. 355; quarter, 20 acres." This was held to Clark w. Scaminou, 62 Me. 47 ; Armstrong mean the west 20 acres of the 40 de- r. Browufield, 32 Kans. 116, 4 Pac. Rep. scribed. 185; Baker v. Light, 80 Tex. 627, 16 S. * Roberts v. Deeds, 57 Iowa, 320, 10 N. W. Rep. 330. W. Rep. 740; Collins v. Storm, 75 Iowa, 36,39 X. W. Rep. 161. a36 GENERAL RULES OF CONSTRUCTION. [§§ 408, 409. the part of the grantor, and a very material variation in quan- tity is itself some evidence of such fraud or misiepreseutation.^ The purchaser's previous knowledge of the land or of its boun- daries does not preclude him from recovering for fraudulent misrepresentation of quantity if, without fault on his part, he was actually deceived and defrauded by the misrepresentation, jirovided the deficiency is more than can be fairly covered by the phi'ase " more or less."^ The words "more or less " and the word " about," used in con- nection with quantity or distances, are words of safety and pre- caution. They are intended merely to cover some slight or un- important inaccuracy, and, while enabling an adjustment to the imperative demands of fixed monuments, they do not weaken or destroy the statements of distance and quantity when no other guides are furnished.'^ 408. Undivided part. — A conveyance by metes and bounds is limited to an undivided interest by the addition of words such as " being an undivided half thereof." The plain meaning of the language used determines the interest conveyed.* 409. Adjoining, Adjacent, Contiguous. — The word "adjoin- ing" in a description means next to, or in contact with, and ex- cludes the idea of any intervening space.° The word " adjoining" implies a closer relation than " adjacent." The latter word, . uncontrolled by the context or subject-matter, is not inconsistent with the idea of something intervening. The description of premises as " adjoining the Atlantic Ocean," with the additional wf>rds " bounded on the ocean," carries title to the line of or- dinary high water, with all the incidents of riparian ownership upon tidal waters.^ The word " contiguous " means in actual contact or touching, 1 M'Coun w. Delany, 3 Bibb, 46, 6 Am. 655; I'cople v. Schtrmerhoin, 19 Barb. Dec. 635; Estcs c. Odom, 91 Ga. 600, 18 540, 556; In re Ward, 52 N. Y: 395; S. E. Kep. 355. Akers v. Railroad Co. 43 N. J. L. 110. ■^ Estes V. Odom, 91 Ga. 600, 18 S. E. In Blow v. Vau-han,105 N. C. 198, 10 Rep. 355. S. E. Rep. 891, a distinction was taken 3 Oakcs V. De Lancey, 133 N. Y. 227, between the words "adjoining" and 231, per Finch, J. ; Belknap y. Sealey, 14 " honnded," bnt this was repndiated in N. Y. 143. the later case of I'cny v. Scott, 109 N. C. * Maxwell v. Hosmer, 138 Mass. 207. 374, 14 S. E. Rep. 294. ^ Yard V. Ocean Beach A.«so. 49 N. J. '■ Yard v. Ocean Beach Asso. 49 N. J. Eq. 306, 24 All. Rep. 729; Jolui.s ii v. Eq "06, 24 Atl. Rep. 729 ; State r. Brown, District of Columbia, 9 CVnt. I.Np. 65!, 27 N. .7. L. 13. VOL. I. 337 ^ 410.] DESCRIPTION AND BOUNDARIES. and tlieri'l'ore a deed conveying certain salt-works, and " lands coiitiijftious thereto," does not embrace a parcel of land three qua Tiers of a mile from such works, and separated therefrom by the lands of other persons.' V. General and Particular Descriptions. 410. Where a general description is joined with a particu- lar one, it is a ruU^ of construction that the latter prevails over the former.^ A general description may be limited, restrained, or controlled by a particular description ; but as a rule a particu- lar desci'iption is not limited, restrained, or controlled by a gen- eral description. The real interest of the parties should, where possible, be gathered from the whole description.-^ The calls in a deed, whether natural or artificial, are divided as regards their relative value into two classes, — descriptive or directory, and spe- cial locative calls. " The former, though consisting of rivers, lakes, and creeks, must yield to the special locative calls, for the reason that the latter, consisting of the particular objects upon the lines or corners of the land, are intended to indicate the precise boundary of the land, about which the locator and sur- 1 Ilolston Salt Co. v. Campbell, 89 Va. 396, 16 S. E. Rep. 274. - Howell V. Saule, 5 Mason, 410. Ala- bama: Giiilniartin v. Wood, 76 Ahi. 204; yikes V. Show.s, 74 Ala. 382. Arkansas : Doe V. Torter, 3 Ark. 18. Connecticut: Benedict v. Gaylord, 11 Couii. 332, 29 Am. Dec. 299. Indiana: Gauo v. Ald- vidi^e, 27 Ind. 294. Iowa : Waldin v. Smith, 76 Iowa, 652, 39 N. W. Rep. 82 ; Barney v. Miller, 18 Iowa, 460. Maine: Heirick v. Hopkins, 23 Me. 217 ; Moore I'. Griffin, 22 Me. 350; Thorndike v. Rich- ards, 13 Me. 430. Massachusetts: Mel- vin V. Rroprietors Locks &. Canals, 5 Met. 15, 38 Am. Dec. 384; Dana v. Middlesex Bank, 10 Met. 250 ; Bott v. Biirnell, 11 Mass. 162; Makepeace v. Bancroft, 12 Mass. 469; Lovejoy v. Lovett, 124 Mass. 270; Smith v. Strong, 14 Pick. 128; Tyler v. Hammond, 11 Pick. 193; Whiting V. Dewey, 15 Pick. 428; Winn V. Cabor, 18 Pick. 553. Michigan: Jones V. Pashby, 62 Mich. 614, 29 N. W. Rep. 374. Minnesota : Witt v. St. Paul «& N. 338 p. Ry. Co. 38 Minn. 122, 35 N. W. Rep. 862. Missouri : Grandy v. Casey, 93 Mo. 595 ; Haunibiil & St. Jo. R. Co. v. Green, 68 Mo. 169. New Hampshire: Tenny v. Beard, 5 N. H. 58 ; Woodman v. Lane, 7 N. H. 241 ; Bell v. Sawyer, 32 N. H. 72 ; Nutting V. Herbert, 35 N. H. 120; Bar- nard V. Martin, 5 N. H. 536. New Jersey : Wharton v. Brick, 49 N. J. L. 289, 8 Atl. Rep. 529 ; McEowen v. Lewis, 26 N. J. L. 451. New York: Case v. Dexter, 106 N. Y. 548, 13 N. E. Rep. 449 ; Jones v. Smith, 73 N. Y. 205. North Carolina : Carter v. White, 101 N. C. 30, 7 S. E. Rep. 473. Oregon : Raymond n. Coffey, 5 Oreg. 132. Tennessee : Wright v. Mabry, 9 Yerg. 55. Texas : Stafford v. King, 30 Tex. 257, 94 Am. Dec. 304; Cullers v. Piatt, 81 Tex. 258, 16 S. W. Rep. 1003. Vermont : Cum- mings V. Black, 65 Vt. 76, 25 Atl. Rep. 906; Spiller v. Scribner, 36 Vt. 245; Fletcher v. Clark, 48 Vt. 211. 3 Cullers V. Piatt, 81 Tex. 258, 264, 16 S. W. Rep. 1003. GENERAL AND PARTICULAR DESCRIPTIONS. [§ 411. veyoi' should be, and are presumed to be, very particular ; while the former are called for without any care for exactness, and merely intended to point out or lead a person into the region or neigliborhood of the tract surveyed, and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls, and must give way to them." ^ 411. A particular description is not usually limited by gen- eral -words of intention, nor does such language restrict the S^rantor's covenants to his title and interest, when the land itself is the subject-matter of conveyance.^ The intent to restrict the conveyance as made in the particular description may, however, be made so clear that effect must be given to the general expres- sion of intent. Thus, where three parcels of land were described as if the grantor were conveying the full and absolute interest in the parcels, but he added, " meaning to convey all the land I purchased '" of three persons named, " referring to their deeds for particulars," and again saying, " meaning to convey all the land set forth in said deed, and no more," and it appeared that the land acquired by the deeds referred to was only an undivided half interest in the land described, it was held that the deed con- veyed an undivided half merely.'^ A particular description also prevails over a general reference to the premises as being in possession of the grantor, or of some other person named,* or as belonging to a person named,^ or as " being the land set-off " by a certain Indian treaty to a person named.^ 1 Stafford V. King, 30 Tex. 257, 273, Hobbs v. I'ayson, 85 Me. 498, 27 Atl. Rep. 94 Am. Dec. 304, per Smith, J. 519. •■2 Clement v. Bank of Rutland, 61 Vt. ^ Hathorn v. Hinds, 69 Me. 326 ; Cullers 298, 17 Atl. Rep. 717; Cumming:.s v. i;. Piatt, 81 Tex. 258, 16 S. W. Rep. 1003. Black, 65 Vt. 76, 25 Atl. Rep. 906 ; In this case the deed described the laud Brunswick Sav. Inst. v. Crossman, 76 Me. by metes and bounds, and then gave a 577; Hobbs v. Rayson, 85 Me. 498, 27 general description of it as being "all of Atl. Rep. 519. fhe . . . survey, except 140 acres belong- 3 Fla"-'^'' V. Bean, 25 N. II. 49; Wood- ing to" a certain estate. The particular man v. Lane, 7 N. II. 241 ; Barnard v. description was held to control, and only Martin 5 N. H. 536 ; Oushy ?;. Jones, 73 the land contained within the described j^ Y f,21. metes anil bounds passed. * Thnyer v. Finton, 108 N. Y. 394, 15 '' Prentice v. Northern Pac. R. Co. 154 N. E. Rep. 615, reversing 37 Ilun, 639 ; IT. S. 163, 14 Sup. Ct. Rep. 997, per Jones y. Smith, 73 N. Y. 205; Maker v. Harlan, J. "The case, then, is this: Lazell 83 Me 562 22 Atl. Rep. 474 ; Looking into the deed under which the 339 §§ 41'2, 413.] DESCRIl'TION AND HOUXDAHIKS. After a drliiiite description by metes and bounds, the grant can- not be enlaiged by the addition of the; wurds, " together witii the buihlings thereon standing," in ease the buildings project beyond the boundaries first described.' Where the parcel described was of a specified farm, but a sched- ule and plan referred to did not include a close which was proved to have been held and treated as a part of the farm, it was held that this close did not pass.^ 412. A clause summing up the intention of the parties as to the property conveyed may be given a controlling effect upon all prior phrases used in a general description.^ A conveyance describing land by lots, blocks, or government subdivisions, and adding, at the end of the description, " also to- gether with all other lands that may not have been heretofore described belonging to said " grantor, passes title to a lot not expressly mentioned.'* 413. A particular description prevails over a subsequent general reference to a prior deed made for another purpose, and such reference must be rejected.^ Such a reference to a prior deed, after a full description, does not alter or change such de- scription in any way, but is regarded as having been inserted for the purpose of showing the grantor's chain of title. Even when plaintiff chiims title, for the purpose of ascertaining the intention of tlie parties, we find there a specific description, by metes and bounds, of the hinds conveyed, followed by a -eni'ral that part of the description will control which is the most definite and best expresses tlie intent of the parties as shown from the whole descriiition.-' Thus, when at the end of the descrip- i tion of a farm there was added the statement that "the above description includes a small lot known as the ' S ' lot," but the description in fact did not include quite all that lot, which con- tained three fourths of an acre, but omitted a narrow strip com- prising one eighth of an acre, it was held that the deed conveyed the whole of tliat lot.* 415. The relative importance of different modes of de- scription depends also very much upon the accuracy with which the descriptions are made. Where there is a clear and definite description of the parcels by boundaries, any subordinate and additional description by occupancy or the like, inconsistent with such essential description, should be rejected.^ A mistake shown to have been made in one form of description discredits that part of the description, and makes another part of the description, which is ordinarily in itself not so important, the controlling description in that instance. Thus a description by occupancy is ordinarily a minor and unimportant form of description; but this form of description may through inaccuracy or ambiguity in a 1 Barney v. Miller, 18 Iowa, 460; Inst. w. Crogsman, 76 Me. 577; Bates)). Adams i;. Alkire, 20 W. Va. 480; Credle Foster, 59 Me. 157, 8 Am. Kep. 406; V. Hays, 88 N. C. 321 ; Aranibula v. Sul- Witt v. Railway Co. 38 Minn. 122, 35 N. livan, 80 Tex. 615, 16 S. W. Rep. 436; W. Rep. 862; Sprague v. Snow, 4 Tick. Harkey v. Cain, 69 Tex. 146, 6 S. W. 54, 56; Bent v. Rogers, 137 Mass. 192; Rep. 637; Jackson v. Loomis, 18 Johns. Paddack v. Pardee, 1 Mich. 421 ; Ryan v. 81, 19 Johns. 449; Jackson v. Clark, 7 Wilson, 9 Mich. 262 ; Chapman y. Crooks, Johns. 217 ; Hathaway v. Power, 6 Hill, 41 Mich. 595, 2 N. W. Rep. 924; Jones 453; Wade v. Deray, 50 Cal. 376; John- v. Pashby, 62 Mich. 614, 29 N. W. Rep. son V. Simpson, 36 N. II. 91; Bott v. 374; Pliunmer v. Gould, 92 Mich. 1,52 Burnell, 11 Mass. 163; Rayburn u. Wi- N. W. Rep. 146; Barney i;. Miller, 18 nant, 16 Oreg. 318, 18 Pac. Rep. 588. Iowa, 460. ■^ Houser v. Belton, 10 Ired. 358, 51 * Ludlow v. Carr, 5 N. Y. Supp. 502. Am. Dec. 391 ; Davidson v. Arledge, 88 ^ Doe v. Galloway, 5 B. & Ad. 43 ; N. C. 326. Dyne v. Nutley, 14 C. B. 122 ; Lutcher & 3 Case u. Dexter, 106 N.Y. 548; Oiisby Moore Lumber Co. v. Hart (Tex. Civ. V. Jones, 73 N. Y. 621 ; Brunswick Sav. App.), 26 S. W. Rep. 94. 342 GENERAL AND PARTICULAR DESCRIPTIONS. [§§ 416, 417. more important form of description, or from failure to employ a more important form, become an essential part of the description and control the rest of it. A specific reference for a boundary to the land of another person controls a general reference to the boundary as land formerly conveyed to the grantor by a person named. " Where a deed contains two irreconcilable descriptions of the entire boundaries of a tract of land, or of a single line, calls for more stable monuments, such as the lines of other tracts or well-known natural objects, will be adopted, rather than course and distauce." ^ 416. A rule ■which amounts to very much the same thing is to the effect that, of two descriptions equally explicit and unam- biguous, that must control which best expresses the intentions of the parties as manifested by the whole instrument.^ Thus, where a lot was described as bounding on a street named, and the re- mainder of the description was definite by metes and bounds, but this further description was added, " intending to include only the land on which said buildings are situated, and the yard in- closed within the fence now built," it was held that the latter description was incorrect because it would leave a narrow strip of land between the fence and the street, and it could not have been the intention of the parties to do this.^ I Several lots were described by numbers, with the further de- scription, " being all of block 25." The lots so numbered were not in that block, but in another. But it appearing to be the grantor's intention to convey the block in which he resided, and that he resided in the block named in the deed, it was accord- ingly held that that block passed by the deed.** A general de- scription controls when the particular description is uncertain or impossible.'^ 417. A rule of construction that the first description in a deed is presumed to express the true intention of the parties lias been invoked "to tip the nodding beam."'' But this cannot 1 Cox V. McGowan (N. C), 21 S. E. ney v. Miller, 18 Iowa, 460; Mullaly f. Rep. 108, per Avery, J. Noyes (Tex. Civ. App.), 26 S. W. Kep. ■^ Driscoll V. Green, .59 N. H. 101; 14.5. White V. Gay, 9 X. H. 126. 31 Am. Dec. « Dri^coU r. Green, 59 N. H. 101. 224; Lane v. Thompson, 43 N. H. .320; * Sharp i;. Thompson, 100 111. 447, 39 Richardson v. Palmer, 38 N. H. 212 ; liar- Am. Rep. 61. ris V. Hull, 70 Ga. 831 ; Stafford v. King, " Sawyer v. Kendall, 10 Cush. 241. 30 Tex. 257, 271, 94 Am. Dec. 304 ; B ir- '^ Vance v. Fore, 24 Cal. 435. 343 5$§ 418, 419.] DKSCKIPTION AND BOUNDARIES. be reo"arded as a sound rule of coiistrucliou. " A specific descrip- tion, wlu'ther it conies before or after a general designation, must pD'vail, upon the underlying principle that the law will always, tloniand tlie pioduction of the highest evidence, and, as between two descriptions, will prefer that which is most certain." ^ There is no rule that, if clauses in a description of land are repugnant, the first necessarily prevails over the last.^ 418. It is a rule of construction that a private grant shall be t iken most favorably for the grantee in case the construc- tion is left in doubt after the ap[)lication of other rules, for it is assumed that the language of the deed is the language of the grantor. Hence it is said that, in case there are two desei-iptions in a deed which are inconsistent, the grantee is at liberty to elect that which is most favorable to him.^ Where there are two descriptions, the one general and the other special, which are repugnant, the grantee may rely on that which is most beneficial to himself.* The argument for this rule rests upon the general proposition that the intention of the parties must prevail, unless it contravenes some settled rule of law ; and a deed is to be construed most beneficially for the grantee when- ever there is a necessity for resorting to that maxim. 419. But this rule does not apply to a grant from the sovereign. The rule of construction applicable to public grants is quite the opposite. Sir William Scott thus states the rule and the reason for it: "All grants of tiie crown are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants, and upon this just ground: that, the prerogatives and rights and emoluments of the crown being conferred upon it for great purposes, and for the public use, it shall not be intended that sucAi prerogatives, rights, and emolu- 1 Cox V. McGowan (N. C), 21 S. E. Esty r. Baker, 50 Me. 325, 79 Am. Dec. Rep. 108, per Avery, J., in substantially 616 ; Sharp u. Thoni|ison, 100 111. 447, .39 li« words. In Carter v. White, 101 N. C. Am. Hep. 61 ; Cottinjiham v. Parr, 93 111. 30, 7 S. E. Rep. 473, the court held that 233; Cox v. McGowan (N. C), 21 S. E. the first description, "known as Walker's Rep. 108, per Avery, J. Island," must yield to a more specific * Brown v. Cranberry Iron Co. 59 Fed. one, by metes and bound.s which did not Rep. 4-34, 437 ; Winter v. White, 70 Md. include the whole island. 305, 17 Atl. Rc]). 84 ; Hall v. Gittinjrs, 2 2 Rathbun v. Gear (Conn.), 30 Atl. H. & J. 112; Buchanan v. Stewart, 3 H. Rep. 60. & J. 329 ; Hager v. Spect, 52 Cal. 579 : * Melvin v. Proprietors of Docks & Vance v. Fore, 24 Cal. 435. Canals, 5 Met. 15, 27, 38 Am. Dec. 384; 344 GENERAL AND PARTICULAR DESCRIPTIONS. [§ 420. ments are diminished by any grant, beyond what such grant, by necessary and unavoidable construction, shall take away." ^ 420. Where property is sufficiently described as a whole, the description is not validated or lestricted by a further general reference or statement which is inconsistent with tlie description as a whole. Thus a description of property as the grantor's farm or homestead on which he resides, or on which some other person lives, is sutlicient to pass the farm or homestead so occupied, al- though some particular circumstance be added which is inconsis- tent with such description, as for instance a reference for boun- daries to a deed which embraced only a part of the farm or homestead; 2 or a statement of quantity which is much less than the whole f arm ; ^ or even a particular description by courses and distances which does not include the whole farm.* Where one made a deed of land silnate in a town named, and containing two hundred and thirty acres, more or less, being "all the lands which I own in said town, the butts and bounds to be found in the county records," and an examination of the records showed that the grantor owned by purchase two hundred and thirty-five acres of land in that town, but it appearing that he had acquired title by possession to another tract of about fifty acres, it was held that the latter tract as well as those of which he had record title passed by his deed.^ A grant of all the grantor's real estate situated in a town named conveys all his land there situated.'' In like manner a particular description by metes and bounds prev;dls over a general description of the lands as being " all " of a certain tract, though the particular description does not cover all the lands in the tract named." 1 The Kebcckali, 1 C. Rob. Adm. 227, Wis. 96, 12 N. W. Rep. 382, 42 Am. Rep. 230. To the same effect, Charles River 701. Bridge v. Warren Biidge, 11 Pet. 420, ^ Andrews r. Pearson, 68 Me. 19 ; Jack- 544-.548 ; Martin ('. Waddell, 16 Pet. 367, son v. Barringer, 15 Johns. 471 ; Ruther- 411; Central Transp. Co. v. Pnllnian's ford t'. Tracy, 48 Mo. 325, 8 Am. Rep. 104. Palace Car Co. 139 U. S. 24, 49, 11 Snp. * Gate v. Thayer, 3 Me. 71 ; Keith v. Ct. Rep. 478; Shivcly /•. Bowlby, 152 U. Reynolds, 3 Me. 393; Lodge v. Lee, 6 S. 1, 14 Sup. Ct. Rep. 548, per Gray, J. Cranch, 237 ; Union Ry. & T. Co. v. Skin- - Eliot V. Thatcher, 2 Met. 44 ; Thatch- ner, 9 Mo. App. 189 ; Haley r. Amestoy, cr ?;. Ilowland, 2 Met. 41; Hastings v. 44Cal. 132. Hasting.s, 110 Mass. 280; Melvin v. Pro- '^ Field v. Huston, 21 Me. 69. prietors of Locks & Canals, 5 Met. 15, '^ Ilobbs v. Payson, 85 Me. 498, 27 Atl. 38 Am. Dec. 384 ; Auburn Cong. Chtircli Rep. 519. V. Walker, 124 Mass. 69; Sherwood r. ' Cummings r. Black, 65 Vt. 76, 25 Atl. WhitinL', 54 Conn. 330, 8 All. Rep. 80; Rep. 906; Spiller v. Scribuor, 36 Vt. 245. Green Bay & M. Canal Co. v. Hewett, 55 345 §§ 4-1, 4--.] DESCRIPTION AND HOUNDAKIES. 421, lu like manner a description of property by a name well known and usually applied to it prevails over a desciip- tion by measurement.^ When the suhject-nuitter of a conveyance is completely identified by its name, the addition of another j>aitieular which is inconsistent will be rejected as surplusage. Thus, where land conveyed was described as the " Mount Pleas- ant Fishery," with the land attached to the same, supposed to be one thousand yards in length, bounded by the brink or brow of the hill on one side and by the river on the other, from one end of the beach to the other, it was held that only that part of the beach known as the "Mount Pleasant Fishery," and the land necessary and convenient for using it, passed, there being no cer- tain beginning point.'^ 422. The grant of a house, a store, a wharf, a mill, or other structure passes the fee in the land occupied and improved at the time of the grant for the use or purpose designated ;3 for the grant of such a structure necessarily comprehends and aptly describes the entire beneficial occupation and enjoyment of the laud itself continuously and permanently, and clearly indicates an intent to pass the grantor's whole interest in the soil,^ A conveyance of " a messuage," described merely by metes and bounds, cannot be construed as embracing a public burial ground, so as to establish a claim of adverse possession thereto, though the conveyance does not except the burial ground. A parcel of land so used is no part of a messuage.^ A reservation of " a barn " includes a sheep-shed connected with it and the barnyard fenced and used with it, and the land cov- ered by these buildings and barnyard. The term "barn" should be construed to include in addition to the barn itself whatever is connected with it, and is essential to its use and enjoyment as a barn.*^ 1 Haley v. Amestoy, 44 Cal. 132; Mar- Dec. 238; Esty v. Currier, 98 Mass. 500; till V. Lloyd, 94 Cal. 19.), 29 Pac. Rep. Hatch ?;. Brier, 71 Me. 542 ; Cuuninyliaiu 491 ; Vejar v. Mound City Aaso. 97 Cal. v. Webb, C9 Me. 93 ; Moulton v. Trafion, 659, 32 Pac. Rep. 713; Harkey v. Cain, G4 Me. 218 ; Pottkanip v. Buss (Cal.), 31 69 Tex. 146, 6 S. W. Rep. 637 ; I'aroui v. Pac. Rep. 1121. Ellison, 14 Nev. 60. * Jamaica Pond Aqueduct Co. w. Chaiid- ■^ Scull V. Pruden, 92 X. C. 108. ler, 9 Allen, 159, per Bigelow, C. J. 3 St. Thomas's Hospital v. Charing ^ Southampton v. Post, 4 N. Y. Supp. Cross Ily. Co. 1 Johns. & H. 400 ; Jamaica 75. Pond Aqueduct Co. v. Chandler, 9 Allen, « Cnnnin<;ham v. Wchh, 69 Me. 92; 159; Allen v. Scott, 21 Pick. 25, 32 Am. Hilton v. Oilman, 17 Me. 263. 346 GENERAL AND PARTICULAR DESCRIPTIONS. [§ 423. 423. A description of a lot by name or number, upon a plat or map referred to, onlinarily prevails over a description by courses and distances, and over calls for monuments, or other par- ticulars used in a description, for the reason that the lot itself, with the name or number by which it is known, is the prominent thing, and therefoi-e there is less likelihood of uncertainty in regard to it than in regard to the particulars of the description, which are employed to identify more particularly the principal thing, the lot itself.^ Thus, where a lot conveyed was described by number upon a recorded plat, and was also described as being sixty feet wide and one hundred and twenty feet deep, but the lot on the plat was only twenty-six feet wide, it was held that, although the grantor owned the adjoining land, his deed con- veyed only tlie lot described by the plat, and that the word in the deed describing the width of the lot must be rejected as falsa demonstratio? Of course, if there is evidence indicating an intention that the description by monuments or measurement shall prevail over the general description b}^ lot, this intention will be enforced.^ If it appears that there is an error in the number of a lot, a description by definite boundaries will prevail. This was the case where " beach and water property " was conveyed by definite exterior boundaries, and was further described as blocks numbered one to thirty-two inclusive on a map referred to, but one block within such boundaries was numbeied thirty-three: it was held that the description by boundaries controlled.* A description of land by h)t numbers is not void though the recorded plat shows no division of it into lots, but merely into blocks, if it be shown that the owner had always treated it as divided into lots, and it appears that the property had been con- veyed and generally known by lot numbers.^ 1 Masterson v. Mtinro (C:il.), 38 Pac. W. Rep. 436; McAfee y. Arliue, 83 Ga. Hep. 1106; O'lleriin v. Brooks, 67 Miss. 645, 10 S. E. Rep. 441. 266,6 So. Rep. 844; Maf;uuii r. Lapham, 2 Arambula v. Sullivan, 80 Tex. 61.5, 21 Pick. 13.5; Rutherford v. Tracy, 48 16 S. W. Rep. 436. Mo. 320, 8 Am. Rep. 104; Union Ry. & -^ Arambula v. Sullivan, 80 Tex. 615, T. Co. V. Skinner, 9 Mo. App. 189; Nash 16 S. W. Rep. 436, explainiu},^ Sikcs v. V. Wilmin ; Line'oln V. Wilder, 29 Me. 169. Massachusetts: Walker v. Boynton, 120 Mass. 349; Bos- ton Water Power Co. v. Boston, 127 Mass. 374; Morse v. Holers, 118 Mass. 572; Wliitman v. Boston & Me. R. Co. 3 Allen, 133; Chaffin u. Chaffin, 4 Gray, 280; Al- len v. Bates, 6 Pick. 460; Foss v. Crisp, 20 Pick. 121 ; Majroun r. Lapham, 21 Pick. 135; Davis v. Rain.sford, 17 Mass. 207. Michigan : Nichols v. New Eny;. P'urniture Co. 100 Micii. 2.30, 59 N. W. Rep. 155; Heffelman v. Otsejro Water Power Co. 78 Mich. 121, 43 N. W. Rep. 1096, 44 N. W. Rep. 1151 ; Wiley v. Lovely, 46 Mich. 83, 8 N. W. Rep. 716; 348 Quinrim v. Rciniers, 46 Mich. 605, 10 N. W. Rep. 35. Minnesota : Borer v. Lange, 44 Minn. 281, 46 N. W. Rep. 358; San- born V. Mueller, 38 Minn. 27, 35 N. W. Rep. 666 ; Coks v. Yoiks, 36 Minn. 388, 31 N. W. Rep. 333 ; Nicolin v. Schneider- han, 37 Minn. 63, 33 N. W. Rep. 33 ; Reed V. Laniniel, 28 Minn. 306, 9 N. W. Rep. 858. Missouri: Whitehead y. Ragan, 106 Mo. 231, 17 S. W. Rep. 307; Dolde v. Vodi -ka, 49 Mo. 98 ; Shclton v. Maupin, 16 Mo. 124; St. Louis v. Mi.-.souri Pac. My. Co. 114 Mo. 13, 21 S. W. Rep. 202. North Carolina : Davidson v. Arledge, 88 N. C. 326, 97 N. C. 172, 2 S. E, Rep. 378. Pennsylvania: Birmingham v. Anderson, 48 Pa. St. 253. Wisconsin : Shnfe'dt v. Spaulding, 37 Wis. 662 ; Burbach v. Schweinler, 56 Wis. 386, 14 N. W. Rep. 449. ^ Heffelman v. Otsego Water Power Co. 78 Mich. 121, 43 N. W. Rep. 1096, 44 N. W. Rep. 1151 ; Hudson v. Irwin, .50 Cal. 450; Serrano v. Rawson, 47 Cal. 52 ; Black V. Sprague, 54 Cal. 266. * Davis I'. Rainsford, 17 Ma.ss. 207; Grand June. R. R. Co. v. County Com- missioners, 14 Gray, 553; Cunningham V. Boston & A. R. R. Co. 153 Ma.ss. 506, 27 N. E. Rep. 660 ; Er.skine v. Moulton, 66 Me. 276 ; Ambrose i;. Raley, 58 111. 506. * St. Louis V. Wiggins Ferry Co. 15 Mo. App. 227. REFERENCES TO MAPS AND SURVEYS. [§§ 425, 426. "vey for a description of the land renders such notes admissible in evidence to show the location of the land.^ When lands are granted according to an official plat of a sur- vey, the plat itself, with all its notes, lines, descriptions, and landmarks, becomes as much a part of the grant or deed by which tliey are conveyed, and controls so far as limits are con- cerned, as if such descriptive features were written out upon the face of the deed or the grant itself.^ 425. An unrecorded plan or plat which is referred to in a deed may be identified by parol evidence ; ^ and as against the grantor and his privies it is a sufficient identification to show that he exhibited it as the plat referred to."* Although a map or plat may be identified by parol evidence,^ in order to avoid questions as to identity it is desirable that the map or plat should be annexed to or indorsed upon the deed, if it is not already recorded. Plans made at the time of a convey- ance are usually recorded with it, and the deed should then refer to the plan and state that it is to be recorded therewith. But even then there is a chance that the question of identity may be raised if the plan is not annexed to or indorsed upon the deed. 426. A map or diagram drawn on a deed, in such relation to or connection with the descriptive words of the deed as to indicate to any reasonable person that the grantor intended it to be taken as a part of the description, is admissible in evidence as a purt of the deed when that is admitted in evidence, although not referred to in the deed itself. " When the map is on the deed itself, the court of necessity must examine it, and from it, taken together with the words of description, determine what the deed conveys." ^ But it has been held that a plan or map attached to a deed, but not referred to in it, cannot be used to explain it.'^ 1 Irvin I'. Bevil, 80 Tex. 332, 16 S. W. N. W. Rep. 358; Hicklin v. McClear, Rep. 21 ; Norton v. Conner (Tex.), 14 S. 18 Oreg. 126, 22 Rac. Rep. 1057; Penry Vf. Rep. 193; Nye v. Moody, 70 Tex. y. Riclianli', 52 Cal. 496. 434, 8 S. W. Rep. 606. * Redd v. Murry, 95 Cal. 48, 30 Pac. - CrMgin V. Powell, 128 U. S. 691, 9 Rep 132, 24 Pac. Rep. 841. Sup. Ct. Rep. 203; Woods r. West, 40 ^ Penry r. Richards, 52 Cal. 496 ; Redd Neh. 307, 58 N. W. Rep. 938 ; Whitney v. v. Murry, 95 Cal. 48,30 Pac. Rep. 132, 24 Lumber Co. 78 Wis. 240, 47 N. W. Rep. Pac. Rep. 841. 425; Jefferis v. Land Co. 134 U. S. 178, "^ Murray v. Klinzing, 64 Conn. 78, 29 10 Sup. Ct. Rep. 518. Atl. Rep. 244. s Ilo.lges 1-. Horsfiill, 1 Riiss. & Mylne, " Wyse v. Leahy, Ir. R. 9, C. L. 384. IIG; Borer t-. Langc, -!4 Minn. 281, 46 349 §§ 427, 428.] DESCRIPTION AND BOUNDARIES. 427. Even if the deed does not expressly refer to a recorded plat of the land and make it a jxivt of the description, still, if the only way of making out the description and identifying the land is by means of the plat, it may properly be supposed that the parties contracted with reference to the plat, aiul this may be looked to as a part of the dcsci'iption.^ Tlius, where one granted two lots, each sixty feet wide, in a certain block owned and laid out by the grantor, a plat of which he had tiled in the county clerk's office, according to which the block contained a large num- ber of lots, all of which win-e twenty-six feet wide, it Was held that the words describing the width of the lot must be rejected a,s falsa demonstratio, and that, in the absence of competent proof to the contrary, the parties must be presumed to have contracted with reference to the real condition of the property.^ A plat of the land made for the grantor, but not shown to the grantee at the time of the conveyance or before, and nt)t re- ferred to in the deed, is inadmissible to control the boundaries as described by the deed.-^ 428. The loss of a plat referred to in a deed does not invali- date the deed if the land can be laid out upon the ground in substantial accordance with the plan.* A plat referred to as annexed to a deed, though it has become sepai^ated from it, may be identified as the plat annexed, and it is then admissible in evi- dence.° A reference in a deed to a plat is evidence as against the 1 Arambula v. Sullivan, 80 Tex. 615, 16 S. W. Rep. 436; Redmond v. Mullo- nax, 113 N. C. 505, 18 S. E. Rep. 708; Burbach v. Schweinler, 56 Wis. 386, 14 N. W. Rep. 449 ; Sheppiird r. Wilmott, 79 Wi.s. 15, 47 N. W. Rep. 1054 ; Elliott v. Gibson (Ky.), 29 S. W. Rep. 620; ILin- lon V. Uniou Pac. Ry. Co. (Neb.) 58 N. W. Rep. 590. 2 Arambula ;•. Sullivan, 80 Tex. f.15, 16 S. W. Rep. 436. Marr, J., said : " The language of this description indicates that the dominant idea in the mind of the grantor, when the deeds were made, was of lots Nos. 1 and 2, in block No. 2, as a whole, and as they had really been estab- lished in his addition, and not the partic- ular lines by which they might be de- scribed otherwise." See, also, Haley v. 350 Amestoy, 44 Cal. 132 ; Wade v. Deray, 50 Cal. 376. 3 Hall V. Eaton, 139 Mass. 217, 29 N. E. Rep. 660. ■* New Hampshire Land Co. v. Tilton, 19 Fed. Rep. 73. In Hicklin v. McClear, 18 Oreg. 126, 22 Pac. Rep. 1057, it was held, in an action involving the title to cer- tain town lots, that the facts relating to platting of the town site by the proprietors, their dedication of the streets and alleys by conveying lots therein, the existence of the two plats, and their similitude in fact, were admissible in evidence to identify the property then in controversy. See Sperry V. Wesco (Oreg.), 38 Pac. Rep. 623. 5 McCullough V. Wall, 4 Rich. (S. C.) 68, 53 Am. Dec. 715. REFERENCES TO MAPS AND SURVEYS. [§§ 429, 430. grantor of the existence of such a plat ; and evidence tending to show a survey of the town prior to the conveyance, and that the grantor produced the plat in question some years afterwards as such plat, is sufficient to identify it as that mentioned in the deed.^ 429. If a plat referred to for the description of the parcels be imperfect or incomplete, the description will nevertheless be sufficient to pass the title, if the parcels intended to be conveyeil are known to the parties, and are susceptible of identification according to the actual survey on the ground.- A description of land as a numbered lot or block on a certain plat is sufficiently definite, although the plat on its face furnishes no data for locat- ing the lot or block, if with the aid of parol evidence the land can be identified.'^ Though the plat be referred to as recorded, when in fact it was not recorded, the grant is not therefore inval- idated, but the unrecorded plat may be used to identify the parcel, or this may be identified by parol evidence.* The statement that the plat referred to is recorded, when it is not, will be rejected 'ds falsa demonstratio. Evidence that the recorded plat referred to in a deed differs from the original plat should not be received. If there is any error or mistake in the reference, the deed should be reformed in equity.^ Where a description refers to a map, and also to monuments at the corners of the lot, parol testimony is admissible to show that the map is inaccurate, and was compiled from other maps without an actual survey, and that the land which the grantor intended to sell, and the grantee to buy, was that staked off and located by the survey.*^ 430. The fact that the plat referred to is invalid, because not made and filed in accordance with statutory provisions, does not affect the deed. A reference to a void deed, or a void plat, for a description, is just as effectual as a reference to a valid ' Redd V. Murry, 95 Cal. 48, 24 Pac. 3 i>edd v. Miirry, 95 Cal. 48, 30 J'ac. Rep. 841, 30 Pac. Rep. 1.32. Rep. 132. - Noonan v. Lee, 2 Black, 499; Borer * Johnstone v. Scott, 11 Mich. 232; I'. Lange, 44 Minn. 281, 4G N. W. Rep. Wiley v. Lovely, 46 Mich. 83, 8 N. W. 358; Wiley v. Lovely, 40 Mich. 83, 8 N. Rep. 716. W. Rep. 716; Corbett i>. Noicross, 35 N. '' Jones r. Johiuston, 18 How. 1.50. n. 99. " Cleveland v. Choate, 77 Cal. 73, 18 Pac. Rep 875. 351 § 4;u.] DKSCRIPTION AND BOUNDARIKS. doi'il or vmUcI j>lat, if tlic description is correct and the deed or plat rrft'iriHl to is aeci^ssihli'.^ Miips or j)lans tiiat have been in use many years, and agree with the original surveys, are not to be held erroneous because thi'V di> not a^ree witli resurveys made k)no' afterwards, and based upon infornnition furnished l)y persons living."-^ 431. "When there is a conflict between a map or plat and an actual survey the latter controls, and the reference to the map may be rejected as surphisage.'^ This is true though the map be the official map of a town. Of course this is upon the sup[)o- sition that the corners and lines established by the survey can be identified.'^ Parol evidence is admissible to show that there is a conflict between the survey in the field from which the map was made and the map itself, in order to determine the correct boun- dary of a parcel.'^ A call in a deed for a natural boundary, like a lake, controls the grant as against a plat annexed and referred to upon which the lake does not appear.^ The lines of a survey marked on the ground constitute the actual survey and control courses.^ They control a general de- scription of a boundary, as " up the bayou." ^ Where tliere is a variance between the plat and the field-notes of the original survey of public lands, the former must control, since it represents the lines and corners as fixed by the surveyor- general, and by which the land was sold.^ 1 Yonnp: V. Cosgrove, 83 Iowa, 682, 49 N. W. Rep. 1040; Nicliols v. New Eng. Furniture Co. 100 Mich. 230, 59 N. W. Rep. 1.55; Brewington ?;. Jenkins, 85 Mo. 57 ; Cottingham v. Seward (Tex. Civ. App.), 25 S. W. Rep. 797. 16 Johns. 257 ; Jackson v. Freer, 17 Johns. 31. « O'Farrel v. Harney, 51 Cal. 125. 6 O'Farrel v. Harney, 51 Cal. 125. ^ Literary Fund v. Clark, 9 Ired. 58. ' Riddleshurg Iron, &c. Co. v. Rogers, ^ Mi:Combs V. Sheldon (Tex. Civ. App.), 65 Pa. St. 416 ; Hall v. Tanner, 4 Pa. St. 26 S. W. Rep. 1114. 244, 45 Am. Dec. 686 ; Quinn v. Heart, 3 Cleveland v. Choate, 77 Cal. 73, 18 43 Pa. St. 337 ; Bean v. Bachelder, 78 Pac. Rep. 875 ; O'Farrel v. Harney, 51 Cal. 125 ; Penry v. Richards, 52 Cal. 496 ; Whiting V. Gardner, 80 Cal. 78, 22 Pac. Rep. 71 ; Racine v. Case Plow Co. 56 Wis. 539, 14 N. W. Rep. 599 ; Koenigs v. Me. 184, 3 All. Rep. 279; Heaton i;. Hodges, 14 Me. 66, 30 Am. Dec. 731. ^ Lutcher, &c. Lumber Co. v. Hart (Tex. Civ. App.), 26 S. W. Rep. 94, re- ferred to and distinguished from Bland Jung, 73 Wis. 178, 40 N. W. Rep. 801 ; v. Smith (Tex. Civ. App.), 26 S. W. Rep. Mansh v. Mitchell, 25 Wis. 706 ; Brad- 773. street v. Dunham, 65 Iowa, 248,250, 21 N. ^ Beaty v. Robertson, 130 Ind. 589, 30 W. Rep. 592; Root y. Cincinnati, 87 Iowa, N. E. Rep. 706 ; Doe?;. Hildreth, 2 Ind. 202, 54 N. W, Rep. 200 ; Jackson v. Cole, 352 274; Chapman r. Polack, 70 Cal. 487, 11 REFERENCES TO MAPS AND SURVEYS. [§ 432. Ill construing a deed describing land by the government survey the court nsust ascertain the corners of the survey as actually established, and not as they ought to have been established. The presuuipnon is that the deed was intended to convey according to the established corners. This presumption may be rebutted by evidence that the parties were mistaken as to the locution of the government line, and intended to convey a definite tract. But this presumption is by no means conclusive ; and, while parol evi- dence will not be admitted to dispute the written contract, it may be admitted to explain it, and to show the understanding of the parties.^ 432. Where a plat delineates an actual survey, the survey- rather than the plat fixes the location and the boundaries of the land. The plat is a picture, the survey the substance. In a convevance referring to such plat, the lot bounded by the lines actually run upon the ground is the lot intended to be conveyed. The plat may be all wrong, but that does not matter if the ac- tual survey can be shown.^ A boundary by a street which has been surveyed and marked by visible monuments prevails as against a plat which varies the location of the street. The line of the street is determined by the survey rather than by the re- corded plat. The courses and distances of a survey are always regarded as more or less uncertain, and always give place, in cases of doubt or discrepancy, to known monuments and boundaries referred to as identifying the land, whether such monuments be natural or artificial objects, such as rivers, streams, springs, stakes, marked trees, fences, or buildings.^ Pac. Rep. 764; Cornett v. Dixon (Ky.), 125; Penry v. Richards, 52 Cal. 496; 11 S. W. Rep. 660. In Vance v. Fore, Smith v. Boone, 84 Tex. 526, 19 S. W. 24 Cal. 435, it was said : " The map may Rep. 702 ; Graham v. Dewecs, 85 Ttx. be regarded as a dacuerreotype of the .395, 20 S. W. Rep. 127 ; Root v. Ciiicin- land which the grantor intended to con- nati, 87 Iowa, 202, 54 N. W. Rep. 206 ; vev." Bradstreet v. Dunham, 65 Iowa, 248, 21 ' Squire r. Greer, 2 Wash. St. 209, 26 N. W. Rep. 592 ; Wliitebead v. Ra^an, Pac. Rep. 222. 106 Mo. 235, 17 S. W. Rep. 307 ; Kroncu- 2 Bean v. Bachelder, 78 Me. 184, 3 herger v. Iloffncr, 44 Mo. 185; Dolde v. Atl. Rep. 279 ; Esmond v. Tarbox, 7 Me. Vodicka, 49 Mo. 98. 61, 20 Am. Dec. 346; Pike v. Dyke, 2 » IIi;rneras i\ United States, 5 Wall. 827; Me. 213; Williams v. Spauidinff, 29 Me. United States v. Sutter, 21 How. 170; 112; Burkhoidir v. Markley, 98 Pa. St. Cirier v. Penn. Coal Co. 128 Pa. St. 79, 37 ; Riddlesbnrs Iron, &c. Co. v. Rogers, 18 Atl. Rep. 480; Wolfe y. Scarborouffh, 2 €5 Pa. St. 416; Marsh v. Mitchell, 2.") Ohio St. 361 ; Ilallett y. Hunt, 7 Ala. 882 ; Wis. 706; O'Farrel v. Harney, 51 Cal. VOL. I. ' 353 § 433.] DESCRIPTION AND BOUNDARIES. A vofert'iice in a deed to a patent of i\\v United States of tlie same land makes the patent and tiie survey upon which the patent was issued a part of the deed.^ A survey incorporated into a deed by reference eontrols a ih- scription by courses and boundary lines of other land.'-^ Tlie testimony of an experienced surveyor familiar with the lt.nd that he had surveyed it many years ago, and found it to corre- spond with certain maps then in existence, and his further testi- mony by the aid of those maps that the line was straight, instead of containing a jog as claimed by one of the parties, is admissible although such maps were not shown to be authentic.^ 433. The original field-notes and plats of a survey are ad- missible to identify the land, or to remove doubts as to the de- scription, without any reference being made to tlieni in the deed.^ In a case before the Supreme Court of the United States, Mr. Justice Bradley said : " If we had any hesitation on the aduiissi- bility of such evidence as a general question, we should be hugely influenced in the present case by the decisions of the Supreme Court of the State. ... In this country a liberal rule on the sul)ject has been adopted in most of tlie States." ^ The boundaries of a survey may be located by surrounding sur- veys referred to in its field-notes, though its corners and lines cannot be found on the ground, and though there is a discrep- ancy in its area between the field-notes and its boundaries as so loc-^.ted.*^ Bland v. Smith (Tex. Civ. App.), 26 S. VV. Rep. 773. 1 Miller v. Topeka Land Co. 44 Kans. 354, 24 Pac. Rep. 420 ; Davidson v. Ar- ledfje, 88 N. C. 326 ; Powers v. Jackson, .50 Cal. 429 ; Tarpeuninj,' v. Cannon, 28 Kans. 66.5. - Hudson V. Irwin, 50 Cal. 450. ' Wineman v. Grummond, 90 Mich. 280, 51 N. W. Rep. 509. And see Bur- dill V. Taylor, 89 Cal. 613, 26 Pac. Rep. 1094. * Ayers v. Watson, 137 U. S. 584. 11 Sup. Ct. Rep. 201 ; Peterson ;;. Skjclver (Neh.),62 N. W. Rep. 43 ; Ratliff v. Burle- son (Tex. Civ. App.), 26 S. W. Rep. 1003; Cook V. Dennis, 61 Tex. 246 ; Stanus v. Smith (Tex. Civ. App.), 30 S. W. Rep. 354 262 ; Boon v. Hunter, 62 Tex. 582 ; Wil- liams V. Win-slow, 84 Tex. 371, 19 S. W. Rep. 513 ; Turner v. Union Pac. Ry. Co. 112 Mo. 542, 20 S. W. Rep. 673 ; Hanson V. Red Rock (S. D.), 57 N. W. Rej). 11 ; Offilvie V. Copeland, 145 III. 98, 33 N. E. Rep. 1085 ; Morrison v. Neff, 18 Ngb. 133; Disney y. Coal Creek Min. Co. 11 Len, 607. A photoffraphic cotiy of the field- notes of a snrvev is admissible as bearinj: on the question whether a certain line was actually menstired. Ayers v. Harris, 77 Tex. 108, 13 S. W. Rep. 768. 5 Avers v. Watson, 137 U. S. 584, 11 Sup. Ct. Rep. 201. 6 Lon^roria v. Shacffer, 77 Tex. 547, 14 S. W. Rep. 160; Standlee r. Burkitt, 78 Tex. 616, US. W. Rep. 1040. REFERENCES TO MAPS AND SURVEYS. [§§ 434, 435. Where tlic boundaries of a survey cannot be located by its own calls and field-notes, they may be established by the field-notes of adjacent surveys.^ Where a junior survey was not made on the ground, and the calls are for the surrounding surveys, the lines of such survey's will be the lines of the junior survey.^ 434. If the field-notes of a survey are inconsistent or un- certain, the true location of the survey may be sho"wn by the testimony of the surveyor who made it.-^ A plat made by such surveyor may be admitted in evidence to explain and illus- trate his testimony in regard to the lines and measurements he has made.* The surveyor may use such map in explaining his testimony, which would not be clearly intelligible without it, though the plat is not shown to be correct or ofiicial.^ But if it is apparent on the face of the field-notes that thei'e is a mistake in them, it is not competent for a witness to state that there is such a mistake.^ This must be determined from the paper itself. Where objects, natural or artificial, are called for in the field- notes of official surveyors, the presumption is that such objects actually existed' at the places indicated by the field-notes.^ If, however, the survey was a mere chamber survey, the calls for such objects affor:l but slight evidence of their existence.^ 435. A corner or boundary well established by marks or monuments controls a description by a map or plat or survey, although this was made contemporaneously with the grant. The map or p\a.t made by the surveyor is admissible in evidence as indicating the location of the survey, but at last the question of boundary is one of fact to be determined by the force and cliar- acter of the testimony. Looking at the evidence in this way, the conclusion whicli is the most reasonable and satisfactory is the one to be adopted.!*^ 1 Adair v. White (Cal), 34 Pac. Rep. Rep. 168; Gunn v. Harris, 88 Ga. 439,14 338. S. E. Rep. 593. 2 Kuechler i-. Wilson, 82 Tex. 638, 18 « Coleman v. Smith, 55 Tex. 254. S. W. Rep. 317. ' Kuechler v. Wilson, 82 Tex. 638, 18 = Schley v. Blum, 85 Tex. 551, 22 S. S. W. Rep. 317. W. Rep. 264; Gunn v. Harris, 88 Ga. « Cadeau v. Elliott, 7 Wash. 205, 34 439, 14 S. E. Rep. 593. Pac. Rep. 916. * Golilsbornuiih v. Pidduck, 87 Iowa, ^ Pruner v. Brisbin, 98 Pa. St. 202. 599, 54 N. W. Rep. 431. i^ Withers v. Connor, 76 Tex. 185, 13 5 Griffith V. Rife, 72 Tex. 185, 12 S. W. S. W. Hep. 743, per Collard, J. ; Welder 355 § 4oC).] DESCKII'TION AND HOUNUAKIl!:S. Where two corners of ;i survey can be deliiiitely identified, the courses and distances may be ascertaiutHl I'loiii the field-notes, and the entire survey constructed therefrom ; and in sucli case the distance and (Quantity must yield to course. ^ Where the monuments of the original survey of a town site have been destroyed, the descriptive words in a plat of the town site are controlliuir as to the location of the town site.'-^ Though the survey be an official one, if the surveyors were di- rected to establish a beginning corner, and then confine them- selves to strict courses and distances, inasmuch as such a direction adopts the most unreliable indicia of location and boundaries known to conveyancers, the courts, in locating these surveys, will resort to every kind of evidence that is competent to establish a disputed boundary.'^ A section corner of a government survey, when shown with cer- tainty, must control even though it is in a different place from that given in the field-noLes and plat.* 43o. Where adjoining owners have entered into posses- sion of land according to boundaries marked by stakes, these are monun\ents which prevail over the courses and distances of a subsequent corrected survey.^ Subsequent surveys may aid in finding lost corners ; but where the old and recognized corners are well known, these must control.'^ If a purchaser takes possession of the land and fences it soon after the making of a survey, and tlie person who made the plat pointed out the bounds, it is presumed that his possession was taken according to the lines of the actual survey.'' It is also com- petent to establish the lines and courses of a tract of land by show- ing where the surveyor actually ran when making the survey at r. Carroll, 29 Tex. 317; New York Land ^ Yard v. Ocean Beach, 49 N. J. Eq. Co. V. Thomson, 83 Tex. 169, 17 S. W. 306, 24 Atl. Rep. 729; Scott c. Yard, 46 Rep. 920 ; Montague Co. v. Clay Co. Land N. J. Eq. 79, 88, 18 Atl. Rep. 359. Co. 80 Tex 392, 15 S. W. Rep. 902 ; Blei- * Peterson v. Skjelver (Neb.), 62 N. W. dorn V. Pilot Mt. M. Co. 89 Tenn. 166, Rep. 43 ; Woods v. West, 40 Neb. 307, 58 204, 15 S. W. Rep. 737 ; Riley v. Griffin, " N. W. Rep. 938 ; Thompson v. Harris, 40 16 Ga. 141 ; Jacobs v. Moseley, 91 Mo. Neb. 2.30, 58 N. W. Rep. 712. 457, 4 S. W. Rep. 135; Reed v. Marsh, 8 ■"' Jones v. Poiuidstoue, 102 Mo. 240, Ohio, 147. 14 S. W. Rep. 824. 1 Rand v. Cartwright, 82 Tex. 399, 18 « Iles^s v. Meyer, 88 Mich. 339, 50 N. S. W. Rep. 794. W. Rep. 290. 2 Sperry ?;. Wesco(Oreg.), 38Pac. Rep. '^ Hoot ?•. Cincinnati, 87 Iowa, 202, 54 623. N. W. Rep. 206. 356 REFERENCES TO MAI'S AND SURVEYS. [§§ 4o7, 438. the instance of the parties to the conveyance, and with a view to its execution.^ 437. The plats and surveys made by the United States government cannot be contradicted by parol evidence, or by private surveys and pkits.'^ ■ Corners shown to have been origi- nally made by governineut surveyors are conclusive, and must be acce[)ted as the true corners, no matter how inaccurately they may have been originally established.-^ It' the corner-stones or other monuments established b}' the government surveyor can be ascertained as originally located, these control the survey, and the lines shown by the field-notes of the survey must be disregarded.'* If such a corner is made a starting-point of a description, it will prevail as against an actual survey and a corner fixed by the gi-antor at the time of the con- veyance.^ Where it is doubtful which of two lines of monuments is the true government line, other things being equal, that one is to be so considered which most nearly conforms to the field-notes.^ 438. Where there is a discrepancy in a government sur- vey between the monuments and the distances given in the field-notes, the monuments will control, even though the result 1 Euliss V. McAdams, 108 N. C. 507, 13 491, 24 S. W. Rep. 366 ; Arneson v. S. E. Rep. 162. Spawn, 2 S. D. 269, 49 N. W. Rep. 1066. 2 Biitesy. III. Cent. R. Co. 1 Black, 204 ; * Cragin v. Powell, 128 U. S. 697, 9 Chapman v. Polack, 70 Cal. 487, 11 Pac. Sup. Ci. Rep. 203 ; Tarpenninjr u. Cannon, Rep. 764 ; Breen r. Donnelly, 74 Cal. 301, 28 Kans. 665; Greer v. Squire (Wash. 15 Pac. Rep. 845 ; Spawr v. Johnson, 49 St.), 37 Pac. Rep. 545; Hubhard i;. Dusj, Kans. 788, 31 Pac. Rep. 664 ; Arneson r. 80 Cal. 281, 22 Pac. Rep. 214; Ne.ssel- Spawn, 2 S. T>. 269, 49 N. W. Rep. 1066 ; rode v. Parish, 59 Iowa, 570, 13 N. W. Jones V. Kimble, 19 Wis. 429 ; Chan v. Rep. 746 ; Arneson v. Spawn, 2 S. D. Brandt, 45 Minn. 93, 47 N. W. Rep. 461 ; 269, 49 N. W. Rep. 1066 ; Woods v. West, Hess 7-. Meyer. 73 Mich. 259, 41 N. W. 40 Neb. .307, 58 N. W. Rep. 938; Peter- Rep. 422 ; Brown v. Morrill, 91 Mich. 29, .son v. Skjelver (Neb.), 62 N. W. Rep. 43 ; 51 N. W Rep. 700; Britton r. Ferry, 14 Thompson ;>. Harris, 40 Neb. 230, 58 N. W. Mich. .53 ; Knight v. Elliott, 57 Mo. 317 ; Kep. 712 ; Johnson v. Preston, 9 Neb. 474, Turner v. Union Pac. R. Co. 1 12 Mo 542, 4 N. W. Rrp. 83; Bruckner r. Lawrence, 20 S. W. Rep. 673; Campbell v. Clark, 8 1 Doug. (Mich.) 19; Jacobs v. Moseley, Mo. 553; Nesselrode r. Pari.sh, 59 Iowa, 91 :\ro. 457, 4 S. W. Rep. 135 ; Climer v. 570, 13 N. W. Rep. 746; Milli'r r. White, Wallace, 28 Mo. 556, 75 Am. Dec. 135; 23 Fla. 301, 2 So. Rep. 614. P.canisley v. Crane, 52 Minn. 537 ; Chan r. '- Liberty ;•. Burns (Mo.), 19 S. W. Rej). Brandt, 45 Miim. 93, 47 N. W. Rep. 461. 1107; Billin<:.sley v. Bates, 30 Ala. 376, ^ Powers c. Jackson, 50 Cal. 429 ; Shel- 68 Am. Dec. 126; Greer r. Squire (Wash, ton' r. r:ionc (Tex. Civ. Aj)]>.). 26 S. W. St.), 37 Pac. Rej). 545, modifyintr Squire Rep. 26. V. Greer, 2 Wash. St. 209, 26 Pac. Rep. ^ Hubbard v. Dusy, 80 Cal. 281, 22 222; Ayers v. Beaty, 5 Tex. Civ. App. Pac. Rep. 214. 357 § 4;>8.] DKSCIUPTION AND BOUNDARIES. be that some of the quarter sections will contain less than their proper number of acres.' There is a jiresumption, however, that the corners were established at the places indicated by the field- notes ; and the proof that they were not so established must be clear and convincing where tlie actual location as claimed does not accord with the section lines in adjoining sections, and will establish the claim in an irregular shape.^ In relocating lost cor- ners on townshi[) lines, when the monuments claimed to be gov- ernment monuments are disputed and not clearly established, these should be established on a line coinciding with the township line at the points indicated by the government field-notes ; that is, on a stiaight line connecting known and undisputed govern- ment monuments on such township line.^ Monumimts and boundary lines as established by the govern- ment survey control the description of lands patented by the United States, and mistakes in the surveys cannot be corrected by the judicial department of the government.* If the field-notes of the government survey afford sufficient data for running the lines of that survey, the fact that cex-tain monuments marking the cor- ners of the survey cannot be found does not render the lines un- known or uncertain so that they can be proved by parol evidence.^ 1 Ogiivie V. Copeliiml, 145 111. 98, 33 (a leading case), the town line was, by a N. E. Ui-p. 11)85 ; Enj:land c. Vandennark resiirvey, deflected from a straight line (111.), 35 N. E. Rep. 465; Gordon !?. between the township corners ; but an ex- Booker, 97 Cal. 586, 32 Pac. Rep. 593 ; amination of the case will disclose the fact Hubbard v. Busy, 80 Cal. 281, 22 Pac. that that was done to give to the parties the Rep. 214; Goodman v. Myrick, 5 Oreg. amount of land to which tliey were en- 65; Van Dusen v. Sliively, 22 Oreg. 64, titled, and that the resurvey followed un- 29 Pac. Rep. 76 ; Greer v. Squire, 2 Wash, disputed pernianent monuments along the St. 209, 37 Pac. Rep. 545 ; McEvoy v. line as established by the original survey Loyd, 31 Wis. 142; Martin v. Carliii, 19 and the government field-notes."' Wis. 454, 88 Am. Dec. 696. In Hall v. ^ Cragin v. Powell, 128 U. S. 691, 9 Tanner, 4 Pa. St. 244, it was .said : " It Sup. Ct. Rep. 203. It is very clear, as has ever been held that the marks on the remarked by the court in Ilaydel v. Du- grouud constitute the survey. The cour.ses fresne, 17 How. 30, " that great confusion and distances are only evidences of the and much litigation would ensue if ju- siirvey." dicial tribunals, state and federal, were - Cadeau v. Elliott, 7 Wash. St. 205, 34 permitted to interfere and overthrow the Pac. Rep. 916; Hess ?;. Meyer, 73 Mich, public surveys." Chan v. Brandt, 45 259,41 N. W. Rep. 422 ; Hanson v. Red Minn. 93, 47 N. W. Rep. 461 ; Doolittle Rock (S. D.), 57 N. W. Rep. 11 ; Rollins v. Bailey, 85 Iowa, 398, 52 N. W. Rep. V. Davidson, 84 Iowa, 237. 337. 3 Hanson v. Red Rock (S. D.), 57 N. » pickett v. Nelson, 79 Wis. 9, 47 N. W. Rep. 11, per Corson, J. : " It is true W. Rep. 936. Surveys from known gov- fhat in McClintock u. Rogers, 1 1 111.279 ernment corners, both north and south 358 REFERENCES TO MAPS AND SURVEYS. [§ 489. An original government survey, under which adjoining owners have purchased, governs the boundary between them as against a subsequent survey made many years afterwards under an act of Congress which recited that the town had never been properly suiveved.^ Where it appears that a purchaser of a part of a o-overnment section of land built a fence upon the boundary lines as located by a surveyor at that time, and he testifies that he found tlie original stake of the government survey and used it as a starting-point, this line will prevail over one surveyed twenty years later, when the corner stake had disappeared.^ 439. Calls for monuments in the field-notes of a govern- ment survey control in relocating the boundaries. Thus, when a patent is issued with boundaries as described in a survey and map made by a government surveyor, who has also made field-notes giving not only courses and distances, but also monu- ments and the various topographical features of the country, the calls for monuments will control the courses and distances.^ But incidental calls for monuments, or natural objects noted in field- notes as such in passing, unless specially designated in such man- ner as to show an intention to make them locative, are not such calls as will ordinarily have precedence over calls for courses and distances.* An actual survey established by evidence controls course and distance.5 Tlie monuments of the original survey control if these can be found, or the places where they were established can be ascertained.'^ A house referred to in the field-notes of a survey, and marked and east and west of the corner in dis- - Carpenter t'. Monks, 81 Mich. 103, 45 pute, by which the corner is lociUed on a N. W. Kep. 477. line with other corners on both of said ^ Tot.n]azzini r. Morganti, 84 Cal. 1.59, Hues, and each landowner is thereby given 23 Pac. Kep. 1085. the full amount of land called for by his * Hanson v. Red Rock (S. Dak.), 57 N. patent, are preferred to a survey which W. Rep. 11; Randall v. Burk Tp. (S. was not begun at a known government Dak.) bl N. W. Rep. 4 ; Jones v. An- corner, and lacked many of the elements drew.s, 72 Tex. .5, 9 S. \V. Rep. 170. of certainty, and which gave one of the ^ Graham v. Dewee.s, 85 Tex. 395, 20 landowners much more than he was en- S. W. Rep. 127. titled to under his jjatent, and the other '' McAninch v. Freeman, 69 Tex. 445, less. Woods u. West, 40 N. b. 307, 58 N. 4 S. W. Hep. 369; Miner v. Brader, 65 W. Rep. 938, 37 Neb. 400, 56 N. W. Rep. Wis. 537, 27 N. W. Rep. 313 ; Truner v. 30. Brisbin, 98 Pa. St. 202. 1 Burt j;. Busch, 82 Mich. 506, 46 N. W. Rep 790. 359 ^:; 440-44l'.J DiscuirnoN and houndakiks. upon a map, bcCDUU's a monument as nmcli as a tree or a stakt>.' 440. Courses and distances control the lines of a survey in the absence of calls for natural or artificial monuments or lines,'-^ or in case tlui monuments cannot be found,'^ or in case the survey was erroneous "* The courses and c] stanres of a disputed survey prevail over the courses a.ud distances of ;idjacent surveys.*' 441. If the original government survey is shown with cer- tainty, a purchaser of a subdivision of such survey takes by that survey, and calls in liis deed inconsistent with such survey must yiehl to it.^ Where the Hne of an okler survey is given as a boundary, but the distance given in the course towards the survey will not carry the land to the line thereof, the survey line will control.^ But in a conflict between two surveys, the later of which was not made on the ground, but in the office of the surveyor from his memory of the former survey, calls for certain trees as an established corner must yield to the earlier survey .^ A deed of a lot by number conveys the lot as it is bounded by the lines actually run by the survey, when they can be ascer- tain-.l.^ 4 i2. The original survey may be traced backward as well as forward.^' It is well settled that in running the line of a survey of public lands in one direction, if a difficulty is met with, 1 Wise V. Burton, 73 Cal. 160, 174, 14 trous v. Morrison, 33 Fla. 261, 14 So. Pac. Rep. 678, 683. Hep. 80.5. 2 Ratliffe v. Burleson (Tex. Civ. App.), "^ Wor.sham v. Clii.sum (Tex. C\v. App.), 2.5 S. W. Rep. 983, 26 S. W. Rep. 1003; 28 S. W. Rep. 90.5 ; Worsli;nn r. Morojan Layton V. New York Land Co. (Tex. Civ. (Tex. Civ. App.), 28 S. W. Kep. 918; A])])) 29 S. W. Rep. 1120. Williams r. Beckham (Tex. Civ. Apj).), 3 Tippen v. McCamphell (Tex. Civ. 20 S. W. Rep. 052. App.), 26 S. W. Rep. 647. ^ Fenley v. Flower.s, 5 Tex. Civ. App. * Aransas Pass. Co. v. Flippen (Tex. I'n, 23 S. W. Rep. 749 ; Shelton v. Bone Civ. Ai)p.), 29 S. W. Rep. 813; Kueeliler (Tex. Civ. App.), 26 S. W. Rep. 224 V. Wilson, 82 Tex. 638, 644, 18 S. W. And see Wyatt v. Dunean U>-p. 317 ; Reast v. Donald, 84 Tex. 648, 6.51, 19 S. W. Rep. 79.5 ; Greg,' v. Hill, 82 Tex. 405, 409, 17 S. W. Rep. 838. s Tippen v. McCampbell (Tex. Civ. App.), 26 S. W. Rep. 647. 6 Shelton v. Bone (Tex. Civ. App.), Curti.s w.Aflronson,49 N. J. L. 68, 72,7 Atl. 26 S. W. Rep. 224; Smith v. Bo.mo, Rep. 886 ; Fuller r. Carr, .33 N. J. L. 157 ; 84 Tex. .520, 19 S. W. Rep. 702; Wa- Ellinwood y. Stancliff, 42 Fed. Rep. 316. 860 Tex. Civ. App.), 22 S. W. Rep. 605. 9 Root r. Cincinnati, 87 Iowa, 202, 54 N. W. Rep. 200 ; Ufford v. Wilkiiis, .33 low.i, 110. 1' Colmrn v. Coxeter, 51 N. H. 1.58; REFERENCES TO MAPS AND SURVEYS. [§ 443. and all the known calls of the survey are met by vunning them in the reverse direction, this may properly be done.^ llie begin- ning corner of a survey is of no higher dignity than any other corner. 2 But it is true nevertheless that " the natural order of survey is that which the deed shows the parties to the di-ed adopted to identify, to their own satisfaction, the land intended to be conveyed by the one to the other. It may be considered as their direction how the identity shall be established by survey at any future time, and it supposes certain points as the beginning to be established. If, therefore, the description of a particular line be complete in itself, the court cannot vary from that descrip- tion because it will not correspond with the description of a poste- rior line, unless the description of the latter be more specific than the former, and unless from the latter a mistake in the former can be clearly inferred." ^ In locating an intermediate monument on a survey which was run also by courses and distances, the footsteps of the surveyor should be followed, instead of taking a reverse course.* 443. The actual beginning corner, if this can be ascer- tained, must control in locating original surveys ; yet when a survey is made upon paper, and not upon the ground, the inten- tion of the parties making the survey should control. This intention is to be ascertained by all the facts and circumstances connected with the case.^ The question of the location of a starting-point of a survey is one of fact for the jury, and not one of theory to be determined finally upon the opinion of surveyors or experts. Their opinion 1 Avers v. Watson, 137 U. S. 584, 11 Sup. Ct. R'p. 201 ; Simmons Cifek Coal Co. V. Boran, 142 U. S. 417, 12 Sup. Ct. Kc|). 2.39, per Fuller, C. J. ; Scott v. Pet- tigrew, 72 Tex. .321, 12 S. W. Rep. Ifil ; Avers v. Harris, 64 Tex. 296 ; Ayers v. Lancaster, 64 Tex. 305 ; Swenson v. Willsford, 84 Tex. 424, 19 S. W. Rep. 613 ; Miles v. Sherwood, 84 Tex. 485, 19 S. W. Rep. 853 ; Norwood r. Crawford, 114 N. C. 513, 19 S. E. Rep. .349; Simp- kins V. Wells (Ky.), 26 S. W. Rep. 587 ; Edson V. Knox, 8 Wash. 642,36 Pae. Rep. 698. 2 Miles r. Sherwood, 84 Tex. 485, 19 S. W. Rep. 853. And see Reast v. Donald, 84 Ttx. 648, 19 S. W. Rep. 795; Scott V. Pettigrew, 72 Tex. 321, 12 S. W. Rep. 161. •' Harry v. Graham, 1 Dcv. & R. 76, 79, 27 Am. Dec. 226 ; Norwood r. Craw- ford, 114 N. C. 513, 19 S. E. Rep. 349; Redmond v. Stej.p, 100 N. C. 212, 6 S. E. Rej). 727. •» Blackburn v. Nelson, 100 Cal. 336, 34 Pae. Rep. 775. ■'' Ocean Beach Asso. v. Yard, 48 N. J. Eq. 72, 20 Atl. Rep. 763; Norwood v. ('rawfor: N. Y. Cent. R. R. Co. 23 N. Y. 61 ; Taylor v. Armstrong, 24 Ark. 102. 366 ' Holmes v. Bellingham, 7 C. R. N. S. 329; Gould v. Eastern R. R. Co. 142 Mass. 85, 7 N. E. Rep. 543 ; Fox v. Union Suj^ar Refinery, 109 Mass. 292; Fisheri;. Smith, 9 Gray, 441 ; Motley v. Sargent, 119 Mass. 231; Peck v. Denniston, 121 Mass. 17 ; Bolaud v. St. John's Schools (Mass.), 39 N. E. Rep. 1035; Matter of Ladue, 118 N. Y. 213 ; Hennessy r. Mur- dock, 137 N. Y. 317, 33 N. E. Rep. 330; Story V. N. Y. Elevated R. Co. 90 N. Y. 122, 165, 43 Am. Rep. 146 ; White's Bank V. Nichols, 64 N. Y. 65 ; Gear v. Barnum, 37 Conn. 229 ; Anthony v. Providence (R. I.), 28 Atl. Rep. 766 ; Albert v. Thomas, 73 Md. 181, 20 Atl. Rep. 912; Moore v. Johnston, 87 Ala. 220, 6 So. Rep. 50 ; Cin- cinnati & Ga. R. V. Mims, 71 Ga. 240; Ja- cob V. Woolfolk (Ky.), 14 S. W. Rep. 415; Schneider r. Jacob (Ky.), 5 S. W. Rep. 350 ; Hawesville v. Lander, 8 Bush, 679. That the rule does not apply to private streets, see Sutlierland v. Jackson, 32 Me. 80; Spackman v. Steidel, 88 Pa St. 453 ; Transue v. Sell, 105 Pa. St. 604. BOUNDARY BY HIGHWAY. [§ 449. is laid out in blocks and lots as represented on a map or plat, and lots are sold bounded upon the projected streets, the deed passes the fee to the centre of the street adjoining such land.^ The grantor in such case is regarded as dedicating the ways to use as streets or ways, so far as his- grantees are concerned, and he is not allowed afterwards to say they are not streets or ways. His deed thus operates not only to create a street, but also, through the pre- sumption arising from the fact that there is a street, to extend the grant to its centre. ^ A boundary of a lot upon a private vfny, whether defined by the deed or shown upon a recorded plan, im- plies the existence of such way for the use of the grantee, and the grantor is estopped, as to the grantee and all claiming under him, from denying the existence of such way, or of any connecting ways shown upon the plan, over land of the grantor, which enable the 1 Jarstadt v. Morgan, 48 Wis. 245, 4 N. W. Rep. 27 ; Fox v. Union Sugar Ke- finery, 109 Mass. 292; Tufts v. Cliarles- towu, 2 Gray, 271 ; Parker v. Smith, 17 Mass. 413, 9 Am. Dec. 157 ; Livingston v. New York, 8 Wend. 85, 22 Am. Dec. 622 , Henne.^sy v. Murdock, 137 N. Y. 317, 33 N. E. Rep. 3.30 ; Thomas r. Poole, 7 Gray, 83 ; Guthrie v. New Haven, 31 Conn. 308 ; Kittle V. Pfeiffer, 22 Cal. 484; Rowan V. Portland, 8 B. Mon. 232 ; Davi.s v. Judge, 46 Vt. 655 ; Garstang v. Davenport (Iowa), 57 N. W. Rep. 876 ; Winter v. Payne, 33 Fla. 470, 15 So. Rep. 211, 213; Rogers v. Bollinger (Ark.), 26 S. W. Rep. 12. 2 Banks v. Ogden, 2 Wall. 57 ; Her- bert V. Rainey, 54 Fed. Rep. 248. Cali- fornia: Currier v. Howes, 103 Cal. 431, 37 Pac. Rep. 521 ; Stone v. Brooks, 35 Cal. 489; People v. Reed, 81 Cal. 70, 22 Pac. Rep. 474 ; Archer v. Siilinas City, 93 Cal. 43, 28 Pac. Rep. 8.39. Michigan: Plumer v. Johnston, 63 Mich. 165, 29 N. W. Rep. 687. Minnesota: Hurley v. Mi.s.s. Rum River liooni Co. 34 Minn. 143, 24 N. W. Rep. 917. Missouri: Stewart v. Perkin.s, 110 Mo. 660, 19 S. W. Rep. 989. In McShane v. City of Moberly, 79 Mo. 41, it was ruled that no one but the absolute owner of the land can dedicate land to a public use so as to pass the fee, and that the dedication of laiitl upon wiiich there is a deed of trust is subject to be avoided by a sale under the deed. New Jersey: White V. Tide-Water Oil Co. 50 N. J Eq 1, 25 Atl. Rep. 199; Prudden ;;. Railroad Co. 19 N. J. Eq. 386, 391, 20 N. J. Eq. 535 ; Booraem v. Railroad Co. 40 N. J. Eq. 557, 5 Atl. Rep. 106. In Dodge v. Railroad Co. 43 N. J. Eq. 351, 11 Atl. Rep. 751, affirmed on appeal, 45 N. J. Eq. 366, 19 Atl. Rep. 622, Vice-Cliancellor Van Fleet states it to be established that, where land is conveyed as abutting on a proposed street, before a public highway in fact exists there, and a way o\er such proposed street is essential to the bene- ficial enjoyment of the land granted, or even a desirable accessory to it, the impli- cation is that, until the proposed street becomes an actual highway, the grantee shall have tlie use of it as a means uf pas- sage to and from his land. The principle of these cases is also recognized and ap- plied in Dill V. Board, 47 N. J. Eq. 421, 20 Atl. Rep. 739; McShane v. City of Moherly, 79 Mo. 41. New York: Bissell V. New York Cent R. Co. 23 N. Y. 61 ; In re Ladue, 118 N. Y. 213; Story v. N. Y. Elev. R. Co. 00 N. Y. 122, 165,43 Am. Hep. 146. Oregon : Meier v. Railway Co. 16 Oreg. .500, 19 Pac. Rep. 610; Hicklin V. McClcar, 18 Oreg. 126, 22 Pac. Rep. 1057. Pennsylvania: Ferguson's Appeal, 117 Pa. St. 426, 11 Atl. Rep. 885. 367 •loO.J DKSCKU'TION AND BOUNUAKIKS. gfuiitee to reach the public highways in any direction.^ Where a plat of hiiul is recorded, and hind appears ihereim bounded by lines clearly intended to represent tlu; lines of a street, and h)ts aie sold as being bounded on such street, such land is dedicated for a public street, though not named as such on the plat.^ As to the grantee in such case, the way shown upon the plat is a street, and it makes no difference whether it has been opened or not.^ The rule is the same even when the land is laid out and sold by an attorney in fact. If, having unrestricted power to sell the kuul, he plats the Siune and sells all of the lots by numbers, the fee in the streets of the plat passes to the grantee, whether the attorney had power to diMlicate the streets to the public or not.'* 45Cf. In case of sales by plats, there is an implied covenant that the abutting streets or ways are or will be laid out as described, that they are of the width represented, and that the grantor will do nothing to defeat or impair the right of way conveyed to the grantee.^ 1 Massachusetts : Fox v. Union Sugar Refiucry, 109 Mass. 292; Boland v. St. John's Sc-liools (Mass.), 39 N. E. Rep. 1035 ; Rodj;ers v. Tarker, 9 Gray, 445 ; Clark V. Parker, 106 Mass. 554 ; Walker V. Boynton, 120 Mass. 349; Walker v. Worcester, fi Gray, 548 ; Tliomas v. Poole, 7 Gray, 83; Loriiig v. Ot\<, 7 Gray, 563 ; Salishury v Andrtvvs, 19 Pick. 250 ; Tufts V. Churlestown, 2 Gray, 271 ; Lincoln v. Shaw, 17 Mass. 4!0 ; Parker v. Bennett, 11 Allen, 388. See Brainaid v. Boston & Ji. Y. Cent. R. Co. 12 Gniy, 407. Indiana : Cox v. Louisville, &c. K. Co. 48 Ind. 178. Michigan: Smith i'. Lock, 18 Midi 56; White r. Smith, 37 Mich. 291. New Jer- sey : Hopkinsoti v. McKniL;ht, 31 N. J. L. 422. New York: White's Bank v. Nichols, 64 N. Y. 65; Matter of OpiMiing of Elev- enth Av. 81 N.Y. 436. Pennsylvania: Tran- sue V. Sell, 105 Pa. St. 604. Wisconsin: Weisbrod i-. Chicago & N. W. \\y. Co. 18 Wis. 35, 86 Am. Dec. 743; Knedand v. Van Valkenhiirgh, 46 Wis. 434, 1 N. W. Rep. 63 ; Pettihone v. Hamilton, 40 Wis. 402. 2 San Francisco r. Biiir (Cal.), 36 Pac. Rep. 771. 368 8 Bissell I'. N. Y. Cent. R. Co. 23 N. Y. 61 ; Dobsony. Hohenadel, 148 Pa. St. 367, 23 Atl. Hep. 1128; Anthony c. Providence (R. I.), 28 Atl. Rep. 766. * Anthony v. Providence (U. 1.), 28 Atl. Rep. 766. ° Banks v. OL-^den, 2 Wall. 57; Merrill V. Newton, 99 Mich. 226, 58 N. W. Rep. 70 ; Capen v. Steven;-, 29 Mich. 496 ; Mo- litor V. Sheldon, 37 Kans. 246, 15 Pac. Rep. 231 ; Guthrie v. New Haven, 31 Conn. 308 ; Thomas c. Poole, 7 Gray, 83 ; Gould V. Railroad Co. 142 Mass. 85, 7 N. E. Rep. 543; Clark v. Parker, 106 Mass. 554 ; Kittle v. Pfciffer, 22 Cal. 484 ; Hen- ncssy V. Murdock, 137 N. Y. 317, 33 N. E. Rep. 330 ; Livingston v. New York, 8 Wend. 85, 22 Am. Dec. 622; Davis v. Judge, 46 Vt. 655 ; Winter v. Payne, 33 Fla. 470 ; Rowan v. Portland, 8 B. Mon. 232; Suoddy v. Bolen, 122 Mo. 479, 25 S. W. Rep. 932 ; Jarstadt v. Morgan, 48 Wis. 245, 4 N. W. Rep. 27 ; Weisbrod i-. P.ailroad Co. 18 Wis. 35 ; Cox v. Railroad Co. 48 Ind. 178; Baltimore & O. R. Co. V. Gould, 67 Md. 60, 63, 8 Atl. Rep. 7.54; Hall V. Baltimore, 56 Md. 187 ; White v. BOUNDARY BY HIGHWAY. [§§ 451, 452. But the purchaser of a lot according to a plat showing a street immediately adjoining, even if the fee of the street to the centre thereof is conveyed to him, acquires only an easement in the street, and cannot take possession of any part thereof, and exclude there- from the vendor, who has lots on the other side of the street, though the street has not been accepted as a public street.^ 451. But such a sale is not strictly a dedication of the streets indicated on such plat to the public for use as higli- ■ways.- The acts and declarations of the owner niay be evidence tending to show a design on his part, presently or at a future time, to dedicate the streets to public use, but they are not in them- selves a conclusive surrender of the land so set apart for use as public highways. But if the plat i-eferred to contains a statement reserving all rights and privileges not expressly granted, and providing that nothing should be taken by implication to be granted, there can be no implication of a dedication of streets or land reserved for parks to the use of the public. Even if the grantor, before mak- ing the deed, has represented that land marked upon the plat for use as streets or parks would be dedicated to the public, the purchaser by taking such deed waives the benefit of such repre- sentation.'^ 452. A deed of land by a plat shov^ing a street or alley as a boundary conveys the title to the centre of the street or alley, jDrovided the grantor's title extends to the centre."^ Even if the grantor retains the fee of the streets, the grantee acquires a right of way over them as an easement appurtenant to the land conveyed.^ Flannigain, 1 Md. 525 ; Transue v. Sell, Co. v. Bachman, 66 N. Y. 261 ; Baker v. 105 Pa. St. 604; Trutt v. Spott.s, 87 Pa. Mott, 78 Hun, 141, 28 N. Y. Supp. 968; St. 339 ; McKee v. Perchment, 69 Pa. St. Holdane v. Cold Sjiriiifr, 21 N. Y. 474. 342; McCmU v. Davis, 56 Pa. St. 431; '-^ Kelly v. West Sentile Laud Co. 4 Bin))inf;hi)iTi i- Andersou, 48 Pa. St. 253 ; Wash. St. 194, 29 Pac. Hep. 1054. Fergusotr.s App. 117 Pa. St. 426, 1 1 Atl. * Alameda Macadamizing Co. v. Wil- Rep.885. Hams. 70 Cal. 534, 12 Pac. Kep. 530; 1 Merrill v. Newton, 99 Mich. 226, 58 Jacob v. WoolfoJk, 90 Ky. 426, 14 S. W. N. W. Rej). 70 ; Williams v. St. Louis, Rep 415; Schneider v. Jacob, 86 Ky. 120 Mo. 403, 25 S. W. Rep. 561. And 101; Gould v. Howe, 131 111.490,23 N. see Boland v. St. John's Schools (Mass.), E. Rep. 602. 39 N. E. Rep. 1035. ^ Smyles i'. Hastings, 22 N. Y". 217; 2 People V. Kellogg, 67 Hun, 546, 22 Baker v. Mott, 78 Hun, 141, 28 N. Y. N. Y. Supp. 490; Niagara Falls Bridge Supp. 968. VOL. I. 369 § 4oo.] DESCKirriuN and boundauil;s. Ill two or tliree States this rule does not apply, where the plat is iiiaile out and recorded in coiiforinity Avith the statutes of such States upon that subject; but this is becausi- the courts of those States hohl that the statutes vest the entire title, beneficial and otherwitie, in the city, town, or C(junty, so that the dedicator lias no interest left in him wliicli is the subject of grant.^ Under such a statute the fee in the streets is held in trust for street pur- poses, and for no other use or purpose. Every other beneficial use is in the lot-owners, and tliis interest of the lot-owners will pass by a conveyance of the lot.'^ The conveyance of a lot facing on a street set apart in the plat for the use of the owner of the lots abutting thereon conveys only an easement in the street.^ 453. When a grant is made bounded upon a "way or lane, with the privilege of using it, the grant of the easement may, in the light of surrounding circumstances, tend to show that there was no grant of the fee of any part of the lane.* In a grant of land upon a higliway, the grantor does not convey to liis grantee a right of way, for this already exists, and is to be kept in repair at the public expense. The grantor, not being burdened with any covenant, express or implied, that the grantee shall have a right of way, has no occasion to retain the fee of the liighway for that purpose; but when the way is one that the grantor has expressly or impliedly assured to the grantee, it is said that there is occasion for the grantor to retain the fee to make his assurance good.^ But the better view is that the grant in such a deed of a privi- lege to use a passageway in common with tlie grantor and others does not exclude the inference of a grant of one half thereof, be- cause the grant of such a privilege is designed to show that the 1 Canal Trustees v. Havens, 11 III. 554 ; Snoddy v. Bolen, 122 Mo. 479, 25 S. W. Union Coal Co. v. City of La Salle, 136 Rep. 932. 111. 119, 26 N. E. Rep. 506; Des Moines 2 Bridge Co. v. Schaubacher, 57 Mo. V. Hall, 24 Iowa, 234. See, alst), Trus- 582 ; Price v. Thompson, 48 Mo. 361 ; tecs V. Ilawes, 6 Bnsh, 232. It may be Ferrenbach v. Turner, 86 Mo. 416. observed that an entirely different con- '^ Tatum v. St. Louis (Mc), 28 S. W. strnction has been given to the statutes Rep. 1002. of Wisconsin and Minnesota concerning * Hobson v. Philadelphia, 150 Pa. St. town plats, wbich statutes are said to be 595, 24 Atl. Rep. 1048, 31 W. N. C. 9 ; the same as that of Illinois. Kimball v. Mott v. Mott, 68 N. Y. 246. Ki'nosha, 4 Wis. 321 ; Milwaukee v. Mil- ^ Bangor House v. Brown, 33 Me. 309; waukee & B. R. Co. 7 Wis. 85 ; Schur- Ames v. Hilton, 70 Me. 36 ; Palmer r. nieier v. Railroad Co. 10 Minn, 82. See Dougherty, 33 Me. 502, 54 Am. Dec. 636. 370 BOUNDARY BY HIGHWAY. [§ 454, grantee sliall have a right to use the whole width of such pas- sageway.^ A deed describing the land as extending " to a driveway, thence easterly on said driveway " a certain distance, and reserving all existing rights of way over the driveway, and declaring that said (hiveway shall remain open and common to all parties having a light therein, conveys title in fee to its centre, subject to such easements, and with a corresponding easement over the other half.^ 454. The intention as regards conveying to the middle of the street is to be found not only in the terms used in tlie deed, but in the circumstances attending the transaction. Each case is to be decided in large part according to its own circumstances.-^ But in some way the intent to exclude the entire street must appear, else the general presumption will prevail. Such intent is not presumed, but on the contrary the intent to include the street to the middle line is presumed.* A manifest intention not to grant the fee to the centre of the street was shown in a case where a town granted to the owner of land bordering on a highway, the fee of which was in the town, a strip of land from the highway, and discontinued such strip as a part of the highway.^ The mere fact that the land is not described as abut- ting or bounding on a highway, and that the highway is not men- tioned, does not prevent the application of the rule if in fact the land borders on it.^ Thus, where the property conveyed was de- 1 Gould V. Eastern R. R. Co. 142 Mass. Mass. 231 ; Phelps v. Webster, 134 Mass. 85, 7 N. E. Rep. 543; Motley v. Sargent, 17; Webber v. Eastern R. R, Co. 2 Met. 119 Mass. 231; Peck v. Denniston, 121 147; Codinan v. Evans, 1 Allen, 443; Mass. 17; Stark v. Coflfin, 105 Mass. 328; White's Bank v. Nichols, 64 N. Y. 65; Lewis V. Beattic, 105 Mass. 410 ; Winslow Mott v. Mott, 68 N. Y. 246 ; In re Ladue, i\ King, 14 Gray, 321 ; Boston v. Rich- 118 N. Y. 213; Jackson v. Hathaway, 15 ardson, 13 Allen. 146; White v. Godfrey, Johns. 447, 8 Am. Dec. 263; Augustine 97 Mass. 472; Boland v. St. John's v. Britt, 15 Hnn, 395, affirmed 80 N. Y. Schools (Mas-.), 39 N. E. Rep. 1035. 647; Kiiiji's County Eire Insurance Co. v. 2 Boland v. St. John's Schools (Mass.), Stevens, 87 N. Y. 287 ; Dexter i;. Riverside 39 N. E. Rep. 1035. And see Eisher v. Mills, 15 N. Y. Supp. ,^74 ; Hughes i-. Prov. Sniitl), 9 Gray, 441 ; Boston ?-. Ri-hard- & W. R. Co. 2 R. I. 508. son, 13 Allen, 146, 153, 154; White v. * Pollock i-. Morris, 19 J. & S. 112; Godfrey, 97 Mass. 472, 474; Stark v. Mott v. Mott, 68 N. Y. 246; Marsh v. Coffin, 105 Mass. 328, 330. Burt, .U V't. 289; Henderson v. Hatter- 3 Salisbury v. Great Northern Ry. Co. man, 146 III. 555, 34 N. E. Rep. 1041. 5 C. B N. S. 174; Hamlin v. Pairpoint ■' Gaylord v. King, 142 Mass. 495, 8 N. Manuf. Co. 141 Mass. 51, 6 N. E. Rep. E. Rep. 596. 531 ; Gaylord v. King, 142 Mass. 495, 8 « Bissell v. New York Cent. R. Co. 23 N. E. Rep. 596; Motley tj. Sargent, 119 N. Y. 61; Gear v. Barnum, 37 Conn. 371 §§ 45"), 450.] DESCRIPTION AND BOUNDAKIES. scribed as a store buildino;, and the land on which it stood in fact bounded upon the higliway, tlie mere fact that tlie highway is not mentioned does not vary the general rule tliat a conveyance bv a, highway I'anies the feu to the centre of it.' 455. The fact that the measurements of the side lines reach only to the outer line of a highway is not sufficient to control the piesum{)tion of an intention to convey the fee to the centre of the highway.'-^ Where the description carried the parcel so many feet to a street named, "•thence along the northerly side of saitl street,"' it was held that the fee of the street to the centre passed by the deed.'^ The presumption of a conveyance to the cientre of the street is not rebutted in case of a boundary by a road '■' to a stone wall," and thence by the wall, by the fact that the wall terminated at the side of the street. In such case the boundary is by the centre of the road to the line of the wall ex- tended."* A boundary by " other land of the grantor on a pas- sageway," when in fact there is no passageway and the only reference to it is in this description, includes no part of any pas- sageway. The boundary is controlled by the measurements.^ 456. The fact that the measurements and the coloring of a plan referred to exclude the streets is not sufficient to control the presumption that the deed passes the fee to the centre of the streets.^ " But although in such cases the literal description in the conveyance does not in terms include the grantor's interest in 229; Champlin v. Pendleton, 13 Conn. 23. 1 Gear v. Barnum, 37 Conn. 229; Hen- derson V. Hatterman, 146 111. 5.55, 34 N. E. Rep. 1041. ■^ Oxton V Groves, 68 Me. 371, 28 Am. Rep. 75; Hunt v. Kicii,38 Me. 195; John- son V. Amlerson, 18 Me. 76 ; Cottle v. Younf(, 59 Me. 105; Woodman v. Spen- cer, 54 N. II 507 ; Moody v. Palmer, 50 Cal. 31 ; Clark v. Parker, 106 Mass. 554 ; Siark i;. Coffin, 105 Mass. 328; Motley y. Sargent, 119 Mass. 231 ; Codman v. Evans, 1 Allen, 443; Dean v. Lowell, 135 Mass. 55 ; Gould v. Eastern R. R. Co. 142 Mass. 85, 7 N. E. Rep. 543 ; Walker v. Boyn- ton, 120 .Mass. .349; Phillips v. Bowers, 7 Gray, 21 ; Newliall v. Ireson, 8 Cu>h. 595,55 Am. Dec. 790; Gear t-. Barnum, 372 37 Conn. 229 ; Peck v. Smith, 1 Conn. 103, 6 Am. Dec. 216; Cox r. Freedley, 33 Pa. St. 124, 75 Am. Dec. 584; Paul V. Carver, 26 Pa. St. 223 ; Henderson v. Hatterman, 146 III. 555, 34 N. E. Rep. 1041. 3 Paul V. Carver, 26 Pa. St. 2:3, 67 Am. Dec. 413; Cox i'. Frcedley, 33 Pa. St. 124, 75 Am. Dec. 584; Pollock v. Morri.s, 19 J. & S. 112; Foreman u. Pres- byterian Asso. (Md.) 30 Atl. Rep. 1114. * Dean v. Lowell, 135 Mass. 55. 5 Treat v. Joslyn, 139 Mass. 94, 29 N. E. Rep. 653. 6 Porridge v. Ward, 10 C. B. N. S. 400; Gould V. Eastern R. R. Co. 142 Mass. 85, 89, 7 N. E. Rep. 543 ; White's Bank V. Nichols, 64 N. Y. 65, 71 ; Pollock V. Morris, 19 J. & S. 112. BOUNDARY BY HIGHWAY. [§§ 457-459. the adjacent sti-eets or passageways, yet the presumption is so stronf that a grantor under such circumstances does not hitend to retain the fee therein, sul^ject to the right of way, after disposing of all his interest in the land which is subject to exclusive occu- ' pancy, that it lias come to be established as a rule of law that the conveyance will by implication be held to include one half of such adjacent streets and passageways, if the grantor owns the same, unless there is something further to show a contrary inten- tion."^ When by statute the fee of streets shown upon recorded plats is vested in the city, town, or county, land conveyed by reference to such plats necessarily excludes the streets.^ 457. In accordance with the general rule, an exception of a highway is not an exception of the fee, unless such cleai'ly appears to iiave been the intention, but only of the easement of the public to the use of such highway.^ In like manner the grant of a way or of the privilege of a highway carries an ease- ment oidy.* A reservation by the grantor of a road through the land conveyed, in order to enable him to reach a highway from other land owned by him, will be presumed, in the absence of a clear indication in the deed to the contrary, to be a reservation merely of the use of the road, and not the fee therein.^ 458. The general rule does not apply when the grantor does not own the fee of the street. The law will not presume that he intended to convey land which he did not own.'^ If land taken for a canal has been acquired in fee from the adjoining owners, a conveyance by such owners of land bounded by the canal is a conveyance only to the exterior line of the canal.' 459. Where the grantor owns the fee of the entire street, a 1 Gould r. Eastern R. 'R. 142 Mass. 85, ^ "Redemptorist v. AVenig (Md.), 29 Atl. 89, 7 N. K. He].. 54.3, per C. Allen, J. Rep. 667. 2 Burbiifh r. Scliweiiiler, .56 Wis. 386, e Church v. Stiles, 5!» Vt. C42, 10 Atl. 14 N. W. Rep. 449. Rep. 674 ; Dunham r. Williams, 37 N. Y. 3 Rieluirdson r. Palmer, 38 N. II. 212; 251; fn re Robbiiis, 34 Minn. 99, 24 Kuhn r. Farnsvvorth, 69 Me. 404 ; Moid- N. W. Rep. 356, 57 Am. Rep. 40; Cole ton r. Trafion, 64 Me. 218; Elliot v. v. Iladley, 162 Mass. 579,39 N. E. Rep. Small, 35 Minn. 396, 29 N. W. Rep. 158, 279 ; Watrous w. Southworth, 5 Conn. 305; 59 Am. Hep. 329; Peck iv Smith, 1 Conn. Rurhach v. Schweinler, 56 Wis. 386, 14 103, 6 Am. Dec. 216. N. W. Rep. 449. Conlni, Ayres v. Penn. « .TaniMica Pond Aq. Co. v. Chandler, 9 R. R. Co. 48 N. J. L. 44, 3 Atl. Rep. 885, Allen, 1.59. 57 Am. Rep. 538. ■ Hunt V. Raplee, 44 Hun, 149. 873 §§ 400, 4lil.] DJ.SCKll'TlOX AND BOUNDARIES. presuinptioii arises tliut, upon a sale of land bounded upon the strci't, he intt'McK-d to convey the fee in the stieet to the opposite bounchirv, if he owns no hind on the opposite? side of the street, and did not intend to retain an interest in any portion of the sLrect fronting the land so conveyed.^ Of course, if there is any reason for supposing the grantor did not intend to convey the fee (if the entire width of the street, as in case he has interests in the land the otlier side of the street, such as riparian rights, then the ordinary presumption will apply, and the grantee will take the fee only to the niidelle of the street."-^ 460. The rule does not apply when the grantor, after mak- ing a conveyance, lays out a street adjoining the land conveyed, without having referred in such conveyance to any street or way.''^ 461. The rule of construction is not uniform, for in some States strong language indicative of the intention to exclude a grant of the fee of the street is required to rebut the presump- tion of intent to grant the way. Thus in several States the rule seems to be that nothing short of direct expression of intention to exclude the soil of the highway will have the effect of exclud- ing it.'* In these States the mere mention of the side of the road, 1 Healey v. Babbitt, 14 R. I. 533; Gray, 21 ; Smith i'.Slocomb,9 Gray, 36, 69 Thomiison v. Major, 58 N. H. 242; In re Am. Dec. 274 ; Siblt-y v. Holden, 10 Tick. Robl)ins, 34 Minn. 99, 24 N. W. Rep. 356, 57 Am. Rep. 40 ; Taylor v. Armstrong, 24 Ark. 102; Suoddy u. Bolen, 122 Mo. 479, 25 S. \V. Rep. 932, per Black, J. ; Wait V. May, 48 Minn. 453, 51 N. W. Rep. 471 ; Ilahermau v. Baker, 128 N. Y. 253, 28 N. E. Rep. 370. 2 Crisbine v. St. Paul & S. C. R. Co. 23 Minu. 114. 3 Knott V. Jefferson St. Ferry Co. 9 Oreg. 530 ; Valley Pulp & Paper Co. v. We.>r, 58 Wis. 599, 17 N. W. Rep. 554. * Connecticut : Peck v. Smith, 1 Conn. 103, 6 Am. Dec. 216 ; Gear v. Bariium, 37 Conn. 229. Maryland: Laws 1892, ch. 684 ; Baltimore & O. R. R. Co. v. Gould, 67 Md. 60. 8 Atl. Rep. 754; Peabody Heights Co. v. Sadtler, 63 Md. 533, 52 Am. Rep. 519 ; Foreman v. Presbyterian Asso. (Md.) 30 Atl. Rep. 1114. Massa- chnsetts : Newhall v. Ireson, 8 Cush. 595, 54 Am. Dec. 790; Phillips f. Bowers, 7 374 249,20 Am. Dec. 521. Missouri: Grant V. Moon (Mo.), 30 S. W. Rep. 328 ; Snoddy V. Bolen, 122 Mo. 479, 24 S. W. Rep. 142, 25 S. W. Rep. 932. Rhode Island: An- thony V. Providence (R. I.), 28 Atl Rep. 766. Mr. Justice Stiness said : " The law should be uniform, and that which is es- tablished in case of a boundary 'upon' or ' by ' should apply to all cases, except where there is a clear and express reserva- tion. Such a rule is useful, reasonable, and just. It rests upon no new doctrine, out it is the unavoidable logic of the prom- ise which in any case extends a boundary into the highway. Its utility is evidenced by statutory enactment in several States, and its authority is abundantly sustained by the better reason and greater weight of decision." Pennsylvania : Cox i;. Freed- ley, 33 Pa. St. 124; Paul v. Carver, 26 Pa. St. 223 ; Trutt v. Spotts, 87 Pa. St. 339 ; Transue v. Sell, 105 Pa. St. 604. BOUNDARY BY HIGHWAY. [§ 462. or of a monument on the side of a road, as the place of beghi- ning or end uf a line, is not sufficient to exclude the road from the grant. ^ Even a boundary by the south line of a street has been held to pass the title to the centre line of it.^ If, however, in addition to such words, there are other words or metes and bounds showing an intention to exclude the highway, such intention must prevail.'^ 462. The presumption is more readily met, however, in other States, and the intention that the highway shall be wholly excluded from the grant may be gathered from indirect words interpreted with reference to attending circumstances. In these States, if a boundarj' commences at a point or monument on the side of a road and thence runs along the road, the boundary is by the margin of the road and not by its centre line.^ The rule is the same although the deed states that the road was laid out for the accommodation of purchasers of lots bounding upon the road, and the location of the lots and of the road is shown on a plat. In a recent case in New York the Court of Appeals said : *' There is great difficulty in reconciling the decisions in this State upon the question of when a description in a deed which bounds the premises upon a highway or street shall be deemed to take in the fee to the centre line of the roadbed in front of the prem- ises. There is no doubt about the rule being settled that there is a legal presumption against the grantor's intending to reserve to himself the title to the soil of the highway, and that such pre- sumption is only overcome b}' language in the conveyance clearly indicating such an intention on his part ; but the application of 1 Low V. Tibbetts, 72 Me. 92, 39 Am. 361 ; English v. Brennan, 60 N. Y. 609 ; Rep. 303; Cottle v. Young, 59 Me. 105, White's Bank v. Nichols, 64 N. Y. 65; 109; Johnson c. Anderson, 18 Me. 76; Mead v. Kiley, 18 J. & S. 20; Tag v. Chamjilin r. Pendleton, 13 Conn. 23; Bor- Keteltas, 16 J. &. S. 241; Jackson v. oujrh of Easton's App. 81 I'a. St. 85 ; Cox Hathaway, 15 Johns. 447, 8 Am. Dec. V. Freedley, 33 Pa. St. 124, 70 Am. Dec. 263; Lee v. Lee, 27 Hun, 1 ; Dexter v. 684; Paul v. Carver, 26 Pa. St. 223, 67 Riverside Mills Co. 15 N. Y. Supp. 374 ; Am. Dec. 413. Greer v. N. Y. Cent. & II. K. R. Co. 37 - Kncoland r. Van Valkeiil)iirj;h, 46 IIiui, 346; De IVv.^tir i: Mali, 27 Hiiu, Wi.s. 434, 32 Am. Rep. 719. Sec, how- 43r) ; Auf^ustinu r. Hritt, 15 Ilnn, 395, af- ever, § 463. firmed 80 N. Y. 647 ; Morison i\ New York 3 Hohoken Land Co. r. lurri-an, 31 Elevated R. Co. 74 Hun, 398, 26 N. Y. N. J. L. 13. See § 465. Supp. 641 , Holloway i\ Sonthmayd, 139 ■• Blacknian r. Rihy, 138 N. Y. 318, 34 N. Y. .390, 64 Hun, 27, 18 N. Y. Supp. N. K. l{cp. 214; King's Co. Fire Ins Co. 707, 28 Abb. N. C. 183, 190. V. Stevens, 87 N. Y. 287, 41 Am. Rep. 375 § 403.] DESCRIPTION AND BOUNDAKIKS. tlu' rule is made uucirtaiii, tliroiigli the varyiiij^' opinions of courts as to the iiil'ereiiccs which we shall draw as to the intention from the words in whicli the grant is couched." ^ 463. It is quite generally held tha.t when the descriptive words are, ''by the side of," "by the margin of," or "by the line of," or equivalent terms, the ice of tlie highway is excluded.- A boundarj' line whirh runs across a road, antl thence by the side of the road, is by the margin of the road and not by its centre. In such case the hinguage is express that the boundary is not on the road, but by the side of it.^ A boundai'y described as running between fixed monuments on the side of a street does not include the fee of the street to the centre.^ So, also, where one end of a line is fixed on the side 1 Holloway v. Southmayd, 139 N. Y. 390, 400, per Gray, J. " Hullicii'iit evi- dence of that uncertainty of application will be found from rcadinji; the opinions since the early case of Jackson v. Hath- away, 15 Johns. 447, down to a very re- cent date." 2 Angell on Highways, § 314. Cali- fornia: Moody V. Palmer, 50 Cal. .31 ; Severy v. Central Pac. K. Co. 51 tJal. 194; Alameda Macadamizing Co. v. Wil- liams, 70 Cal. 534. Illinois: Chicago ;;. Rumsey, 87 111. 348; Helm v. Web-ter, 85 111. 116. Maine: Cottle v. Young, 59 Me. 105; Oxton v. Groves, 68 Me. 371, 28 Am. Rep. 75. Maryland: Baltimore & 0. R. R. Co. V. Gould, 67 Md. 60, 8 Atl. Rep. 754; Peabody Heights Co. (;. Sailtler, 63 Md. 533, 52 Am. Hep. 519. Massachusetts: Hamlin v. Pairpoint Manuf. Co. 141 Ma-s. .'il, 6 N. E. Rep. .531; Phelps v. Webster, 134 Mass. 17; Holmes V. Turner's Falls Co. 142 Mass. 590, 8 N. E. Rep. 646 ; Smith v. Slocomb, 9 Gray, 36, 69 Am. Dec. 274; Phillips v. Bowers, 7 Gray, 21 ; Sibley ?•. Ilolden, 10 Pick. 249, 20 Am. Dec. 521 ; Braliiard v. Boston & N. Y. Cent. R. R. Co. 12 Gray, 407. Michigan: Grand Rapids & Ind.R. R. Co. V. Heisel, 38 Mich. 62, 31 Am. Rep. 306. New York: Greer v. New Yoik Cent. & H. R. R. R. Co. 37 Hun, 346; Clark V. Rochester City R. Co. 2 N. Y. Supp. 563 ; Mead r. Riley, 18 J. & S. 20 ; :;76 .Jackson v. Hathaway, 1 5 Johns. 447, 8 Am. Dec. 263 ; King's Co. Ins. Co. v. Stevens, 87 N. Y. 287, 41 Am. Rep. 361 ; Starr v. Child, 5 Den. 599 ; Halsey v. McCormiek, 13 N. Y. 296; Fearing v. Irwin, 4 Daly, 385 ; De Peyster v. Mali, 27 Hun, 439 ; Dexter v. Riverside Mills, 15 N. Y. Su|)p. 374 ; Holloway r. Delano, 139 N. Y. 390, 34 N. B. Rep. 1052, affirming 18 N. Y. Supp. 704; Holloway v. Southmayd, 139 N. y. 390, 34 N. E. Rep. 1047. New Jer- sey : Salter v. Jonas, 39 N, J. L. 469, 23 Am. Rep. 229; Hoboken Land Co. v. Keiri^zan, 31 N. J. L. 13. Ohio: Lough V. Machlin, 40 Ohio St. 332. Rhode Is- land : Hughes V. Providence R. R. Co. 2 R. I. 508 ; Anthony v. Providence (R. I.), 28 Atl. Rep. 766. Vermont: Morrow ?-. Willard, 30 Vt. 118. Wisconsin: Knee- land f. Van Valkcuburg, 46 Wis. 434, 32 Am. Rep. 719. 3 Holmes i: Turner's Falls Co. 142 Mass. 590, 8 N. E. Roj). 646. 4 Peabody Heights Co. v. Sadtler, 63 Mil. 533 ; Hunt v. Brown, 75 Md. 481, 23 Atl. Rep. 1029, per Robinson, J. "At the same time we cannot shut our eyes to the fact that in nitie cases out of ten there is no intention either way on the part of the grantor or the grantee. . . . And to av(]i(l litigation of this kind, involving the construction as to the intention of the parties, at the best sometimes doubtful, it would be l;etter, it seems to us, to declare BOUNDARY BY HIGHWAY. [§ 464. of a highway, no rule of construction will justify the location of the other end of that line in the centre of it. Such a location should be made only when required by express words to that eff.ct.i 464. A deed merely describing land as situate on the side of a street passes the title to the centre of the street. ^ And so a deed describing land ;is "beginning on the southerly side" of a road, at the corner of land belonging to a third person named, and thence running on said road, conveys the title to the middle of the road.'^ In these cases no fixed monument, such as a stake and stones at the edge of the road, is referred to, and there is nothing to prevent the application of the general rule. In case a stake and stones referred to are not to be found, it seems the title to the centre line of the road would pass.* On the other hand, some of the cases go even to the extent of holding that the point of intersection of two streets taken as a starting-point may indicate an intention to exclude a grant of the fee of a street. The point thus established is regarded as control- ling the other parts of the description, and lines running thence along the streets are confined to the exterior lines of the streets, and the soil of the street is not included.^ by legislative enactment tliat all grants hereafter niiide of land bordering on a hiL;liway shall carry the fee to the middle of the highway, jirovidcd the grantor is the owner of the fee, nnless the fee is re- served in exijress terms to the grantor." Such a statute wMs eiuicied. Laws 1892, ch. 684. 1 Ricnian v. Baltimore Belt R. Co. (Md) 31 Atl. Rep. 444. In Sibley v. * Chadwick v. Davis, 143 Mass. 7, 8 N. E. Rep. 601. 5 Rieman i\ Baltimore Belt R. Co. (Md.) 31 Atl. Rep. 444. The description in a deed was as follows : " Beginning . . . at the southeast corner or interjection of H and G streets, and running thence east- erly, bounding on G Street, 25 feet ; then southerly, parallel with H Street, 80 feet, to an alley; tlien westerly, bounding on Holden, 10 Pick. 249, the Supreme Court said alley, to 11 Street, 25 feet ; and thence of Massachusetts uses this language: northerly, bounding on H Street, to the " As one point in this line is fixed by the place of beginning." It was held that description to the side of the road, we are "the southeast corner" of II and G satisfied thnt, by a just and necessary con- streets was the point of intersection of struction, the other point must be taken the east side of M Street and the .■■otith side to be iit the sMine side of the road, and of G Street, and no jiart of the roadbed therefore the soil of the road is not in- of H Street passed by the deed. White's cludc'l." 2 White v. Godfrey, 97 Mass. 472. 8 Chadwick v. Davis, 143 .Mass. 7, 8 N. E. Rep. 601 ; O'Conncll v. Bryant, 121 Mass. 557 ; Peck r. Denni.ston, 121 Mass. 17; Phillips v. Bowers, 7 Gray, 21. Bank v. Nichols, 64 N. Y. 65 ; English i-. Brennan, 60 N Y. 609; Augustine (;. Britt, 15 Ilun, 395, aflirmed 80 N. Y. 647. See, however, Mott v. Mott, 68 X. Y. 246 ; Cochran v. Smith. 73 Ilun, 597, 26 N. Y. 377 S^ lO.J, 4t'iG.] DESCRIPTION AND BOUNDARIES. 465. When a road is a terminus a quo, there is more uncer- tainty whether the boundary is the centre of the road than lluMO is wlirii the roail is made the tcnninus ad quern; for it seems that in some pUiees it is a eommon method of measurement, in me.isuriiiL;- from a road, to measure from the side of the road instead nf the centre; and there might be a reasonabU^ presump- tion that tlie measurement was in fact made in this way, unless sonietliing appears ailirmatively to show that the measurement began at tlie centre of the road. Such a presumption would be controlled by evidence that the parties at the time of the convey- ance establislu'd monuments at the distance called for from the centre line of the road, and that the land was afterwards fenced and occupied in accordance with such monuments.^ For the purposes of measurement and quantity, a deed of a platted lot giving the measurement from a corner of the lot at the street may convey the land according to the measurement from the border of the street, and not from its centre, although tlie plat, in giving the size of the lot, measures to the centre of the street.^ 466. A grant of land bounded upon a public street will be referred to the street as actually built and used, rather than to the street as shown upon a recorded plat or map, or by a survey, especially when these lines nearly coincide.^ The street is a mon- ument, and, like any other object mentioned as a monument, it is something visible and existing in fact. A road or highway men- tioned as a boundary means the apparent and existing road or high- Siipi). 103 ; Holluway v. Delano, 18 N. Y. Den Brooks v. Correon, 48 Mich. 283, 12 Supp. 704. N. W. Kep. 206 ; Atwood v. Canrike, 86 1 Dodd V. Witt, 139 Mass. 63, 29 N. E. Midi. 99, 103, 48 N. W. Rep. 950 : Orena Kep. 475, 52 Am. Rep. 700. v. Santa Barbara, 91 Cal. 621, 28 Pac. Rep. •■2 Moutgomery v. Hines, 134 Iiid. 221, 268 ; Brown v. Heard, 85 Me. 294, 27 Atl. 33 N. E. Rep. 1100. Rep. 182 ; Tcbbetts v. Estes, 52 Me. 566 ; •5 Foley V. McCarthy, 157 Mass. 474, Blackman v. Riley, 138 N.Y. 318,34 N. 32 N. E. Rep. 669; O'Brien ;;. King, 49 E. Rep. 214; Falls Village W. Power Co. N. J. L. 79, 7 Atl. Rep. 34 ; De Veney v. v. Tibhetts, 31 Conn. 165; Bristol Mannf. Gallagher, 20 N. J. Eq. 33; Ilaring v. Co. r. Barnes, 54 Conn. 53, 5 Atl. Rep. \'au Ilouten, 22 N. J. L. 61 ; Jacksou v. 593 ; Fisher v. Bennehoff, 121 III. 426, 13 Perrine, 35 N. J. L. 137 ; Smith v. State, N. E. Rep. 150; Cleveland v. Obenchain, 23 N. J. L. 130; Aldrich l: Billings, 14 107 Jnd. 591, 8 S. E. Rep. 624 ; Bradstreet R. I. 233; Draper v. Monroe (R. I.), 28 v. Dunham, 65 Iowa, 248, 21 N. W. Rep. Atl. Rep. 340; Hoffman v. Port Huron 592; Winter r. Payne, 33 Fla. 470, 15 So. (Mich.), 60 N. W. Rep. 831 ; Twogood r. Kep. 211. llovt, 42 Mich. 609, 4 N. W. Rep. 44i ; Vin "378 BOUNDARY BY HIGHWAY. [§ 467- . way, and not that which may exist of record, or that may be deter- mined by a survey. It is like any other monument described as a boundary, a monument existing in fact.^ But where Lind is con- veyed bounded by the line of a highway, parol evidence is admis- sible to show whether, by such description, the parties meant the surveyed line of the highway or the line as actually used and occupied.2 If the road had not been actually opened at the date of the conveyance, but there was then a recorded plat of it, the location of it must be determined by the plat, as the description in the deed must necessarily refer to that.^ Where land is bounded on the west by a street, according to a map referred to, the meaning of the deed is that, wherever the eastern line of the street, as it was laid out or actually surveyed, is, there also is the western boundary of the land conveyed.'^ A deed describing land as beginning at a point " ranging " with the south line of a street refers to the street as extended to the pioperty on a recorded plat, and not as it actually exists some distance away.° Where the question was whether a lot was conveyed with ref- erence to the street which formed its eastern boundary, as opened and used, or as shown on a certain map which represented a wider street, the circumstances were considered material and conclusive. There was no reference to the map in the deed, and nothing was said as to the eastern boundary. The purchaser was familiar with the actual location of the street when he made the purchase. The street existed before the map was nuide, but had never been open or used to the width shown by the map ; and the trees, side- walk, and fences indicated tlie width to be different from that shown by the map. It was held that a finding, that the parties intended to make the boundary by the street as it appeared and WHS Mctually used when thf^ deed was executed, was proper.^ 467. A proposed street, or one which does not exist in 1 Falls Village W.iter Power Co. v. ^ Atwood /•. Caiirike, 86 Mich. 99, 48 Tibbetts, 31 Conn. 167 ; Bristol Manuf. N. W. Rep. 9.50. Co. 1-. Barnes, .'54 Conn. 5.3, .5 Atl. Hep. * Andreu v. Watkins, 26 Pla. 390, 7 So. .593 ; Brown v. Heard, 8.5 Me. 294, 27 Atl. Rep. 876. Ucp. 182 ; Frost v. Angler, 127 iMn.ss. 212 ; ^ ^cid v. Klein (Ind.), 37 N. E. Rep. !{'cine v. Emerson, 85 Wi.s. 80, 55 N. \V. 967. Kip. 177. 6 Barrow.s v. Webster (\. Y.),39 N. E. - Wead V. St. Jolin-hury & L. C. K. Co. Rep. 357. And see McShane v. Main, 62 64 Vt. 52, 24 All. Hep. .361. N. H. 4. 379 .§ 4(J8.J DKSCRirTION AND UOUNDAKIKS. fact, maybe used as a monument. Tluis, where a street extends up to an uii[)latte(l and nn.survrvi'd tract ot" land, Imt has not yet bern oxtendi'd into sufh tract, antl a lot is sold, and its bounda- ries lixed by such street, just as if it had been extended into the tract, and there is no doubt as to just where the street when ex- tended Would be, the lixinj^ of it as a boundary will control the courses and distances of the conveyance.^ Where a boundary is made by a street which, is practically located after the execution of the deed, such location may be looked to for the location of the land, and when the street is accepted it is presumably the street referred to in the deed.^ If a lot is b(junded upon a projected street, and the street is laid out and opened on the gi-antor's land some distance in front of the lot, according to the measurements and the plat referred to, the land between the lot as described and the street as laid out passes by the deed.^ Where land was conveyed to a railroad company for purposes of its business by a deed which described the land by reference to the line of the road of such company as then located, but not built, the boundary lines are not affected by a subsequent change in the location of the road.^ The fact that land conveyed is described in the deed as situated on a certain street is not an implied covenant on the part of the grantor that such street exists, where theie is no reference to any plan or to the street except in the description of the land.^ 468. When a street or way is discontinued, the owners of land adjacent to it as a rule are entitled to the full possession and use of the land which was already theirs in fee. The easement of the public is at an i^nd, and the adjacent owners take posses- sion under their respective titles,^ Where by statute the fee of streets and ways vests absolutely in the city, tf)wn, or county, it is in several States provid(Ml l)y statute that, when any street or way ' I'otts V. Canton Warehouse Co. 70 * King ?•. Norfolk & W. R. Co. (Va.) Miss. 462, 12 So. Kcp. 147; Stark v. Cof- 17 S, E. Hop. 8(58. fin, 105 :\Iass«. 328 ; Johnson v. Arnold, 91 ^ Q^,](. ,._ Hadlcv, 162 Mass. 579, 39 N. Ga. 659, 18 S. E. Rep. 370. E. ]?ep 279. - Payne ;;. Englisli, 101 Cil. 10,35 Pac. '^ Wallace ?-. Fee, 50 N. Y. 694; Moody Rep. 348. And see Orcna v. Santa Bur- v. Palmer, 50 Cal. 31 ; Ott v. Kreiter, 110 bnra, 91 Cal. 621, 28 Pac. Rep. 268. Pa. St. 370, 1 Atl. Rep. 724 ; Kinihall v. •' Draper v. Monroe (R. I ), 28 Atl. Rep. Kcnoslia, 4 Wis. 321 ; Ilealey v. Babbitt, 340. 14 R. I. 533. 380 BOUNDARY BY HIGHWAY. [§ 469. is vacated, the same shall revert to the owners of the real estate adjacent thereto on each side, subject to tlie right of the city to reopen the street without expense. ^ Under such a statute in Illi- nois it was held that the title reverted to the original proprietor, and not to adjacent landowners ; but in Iowa and Kansas it is held that it passes to the adjacent landowner.^ 469. Even if the grantee does not acquire the fee to any part of the street, he may have a perpetual easement of way, to be kept open, though it be tliscontinued as a public highway. Thus, in case a grantor has bounded land by a street in such a way as to retain title U) the soil of the entire street, and the street is afterwards discontinued as a public highway, the grantee still re- tains an implied grant of a private easement in the street.^ It is the grantee's right in such case to have the space of ground which was the street left open forever as a way to be used for every purpose that may be usual for the accommodation of the adjoin- ing land of the grantee. This rule is stated by Chief Justice Shaw * vv^ith the force and perspicuity usual in his opinions : " It seems reasonable, and quite within the principle of equity on which this rule is founded, to apply it to the discontinuance of a highway, so that, if a man should grant land bounding expressly on the side of a highway, if the grantor own the soil under the highway, and the highway, by competent authority, should be dis- continued, such grantor could not so use the soil of the highway as to defeat his grantee's right of way, or render it substantially less beneficial. Whether this should be deemed to operate as an implied grant or as an implied warranty covenant and estoppel, binding on the grantor and his heirs, is immaterial. The right itself would be inferred from that great principle of construction that every grant and covenant shall be so construed as to secure to the grantee the benefits intended to be conferred by the grant, and that the grantor shall do nothing to defeat or esentially impair his grant." In a recent important case in New York the owner of land 1 Gebhardt !;. Reeves, 75 111. 301. Nichols, 64 N. Y. 65; liuttemeier v. 2 Day V. Schroeder, 46 low.i, 546; Alhro, 18 N. Y. 48 ; De Peyster v. Mali, Atchison, T. & S. F. 11. Co. v. Patch, 28 92 N. Y. 262; Ilolloway v. Delano, 139 Kans. 470. N. Y. 390, .'U N. E Rep. 1052. ■'' Parker «;. Framinf^liam, 8 Met. 260; •• Parker r. Frainiii^rhjuri, 8 Met. 260. Ilolloway ('. Souihiiiayd, 139 N. Y. 390, See, however, Baltimore & 0. R. Co. v. 34 N. E. Rep. 1047 ; While's Bank v. Gould, 67 Md. 60, 8 Atl. Rep. 754. 381 § 470.] DESCRIPTION AND BOUNDARIES. conveyed a portion of it, bounding it upon a public highway in such terms that the fee of the road was not transferred by the deed. Subsequently the road was legally closed as a highway, autl an heir of the grantor claimed to be entitled in fee to tlu; land lying in front of the parcel conveyed. His claim was based upon the ground that the grantor's conveyance did not pass the fee in the road in front of the parcel, and that therefore, when the road was closed, the land was relieved of the public easement and reverted to the grantor's heirs. The Court of Appeals said : " We hold that, though the fee of the soil of the road may not have been transferred to the grantee by the conveyance and may have re- mained in the grantors, and those deriving title from them, yet, in bounding the granted premises upon the Bloomingdale Road, and by including the easements and appurtenances thereto be- longing, the grantors impliedly warranted to the grantee that so much of the road should perpetually exist as an open way as bor- dered upon the premises granted, and in legal effect granted such usual and more or less necessary easements as would be compre- hended in the free flow of light and air over and in the free use of the open way as such, pro tanto, and which survived the ex- tinguishment of the puWIic easement in the highway by act of law. To those easements the fee in the land embraced in the highway remained perpetually subject. That the ownership of the fee may be barren of profit has notliing to do with the ques- tion. In the original sale the owner received, presunuibly, a value proportioned to the fact that the land sold was upon the Bloomingdale Road, which gave to it access and other advantages. To permit the successors in interest of the original grantor, in the face of the grant, to resume dominion over, and to have the bene- ficial use of, the land in the old highway, would be unjust, as well as without sufficient warrant in the law." ^ VIII. Boundary by the Sea, Rivers, and Lakes. 470. Land by the sea, between high and low water mark, and by rivers where the tide ebbs and flows, is vested in the State. The rule of law in regard to public and private owner- ship of the shore is exhaustively stated in a recent decision of the Supreme Court of the United States rendered by Mr. Justice 1 Holloway v. Southmayd, 139 N. Y. 390, 410, per Gray, J. 382 BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§ 470. Gray : ^ '' By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high-water mark, within the jurisdiction of the crown of England, are in the king. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement; and their natural and primary uses are public in their nature for highways of naviga- tion and commerce, domestic and foreign, and for the purpose of fishing by all the king's subjects. Therefore the iitk^, jus jjri- vatum, in such lands, as of waste and unoccupied lands, belongs to the king, as the sovereign, and the dominion thereof, jus pub- licum, is vested in him, as the representative of the nation and for the public benefit. ... In England, from the time of Lord Hale, it has been treated as settled, that the title in the soil of the sea, or of arms of the sea, below ordinary high-water mark, is in the king, except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or us;ige,2 and that this title, jus privatum, whether in the king or in a subject, is held subject to the public right, jus publicum, of navigation and fisliing.^ The same law has been declared by the House of Lords to prevail in Scotland.* . . . " Tlie common law of England upon this subject, at the time of the emigration of our ancestors, is the law of this country, except so far as it has been modified by the charters, constitu- tions, statutes, or usages of the several colonies and States, or by the Constitution and laws of the United States. The English possessions in America were claimed by right of discovery. Hav- ing been discovered by subjects of the king of England, and taken possession of in his name, by his authority or with his 1 Shively v. Bowlby, 152 U. S. 1. 14 M. & G. 206,4 De Gex & J. 55 ; Mal- Sup. Ct. Rep. 548. Mr. Justice Gray's coin.>. Fo<,nvell, .5 Barn. & Eq. I'l. (4th ed.) 14.'); Bluiuldl v. Cat- C. 87.5, 88.5, 8 Dowl. & R. 747, 755 ; Smith terall, 5 Barn. & Aid. -208, 298, 305 ; At- V. Stiiir, f. Bill A])!). Cas. 487; United torney-Oeneral v. Richards, 2 Anstr. 603, States y. Pacheco, 2 Wall. 587. 616; Attorney-General /•. Parmeter, 10 By the law of England, also, every Price, 378, 411, 412 ; At omcy-General u. building or wharf erected without license Terry, 9 Ch. App. 423, 429, note; Weber below high-water mark, where the soil is ;;. Conimi-sioncr.«, 18 Wall. 57, 65; Barney the king's, is a pnrpresture, and may, at v. Keokuk, 94 U. S. 324, 3."!7. the suit of the king, either be demolished, ' Unit' d States r. Pacheco, 2 Wall. 587. or be seized and rented for his benefit, if - Weber i;. Commissioners, 18 Wall, it is not a nuisance to navigation. Lord 65. Sec, also, Knight v. U. S. Land Asso. Hale, in Ilarg. Law Tracts, p. 85 ; Mitf. 142 U. S. ICl, 12 Sup. Ct. Rep. 258. 889 § 47.".] DESCRIPTION AND BOUNDARIES. colonial giMiits, or giants I'roni the English sovereign.^ The shore, says Loril Hale,- " dnih j)riin1. ' Niiiid V. Hohbs, 17 N. H. 524, 526; Clement r. Burns, 43 N. H. 609, 621 ; Concord Maniif. Co. v. Robertson, 66 N. H. 1, 26, 27, 25 Atl. Rep. 718. 2 Ang. Tide- Waters (2d ed), 236, 237 ; FoUom i: Freeborn, 13 R. I. 200, 204,210. It would seem, however, that the owner of the upland has no riyht of action ajrainst anv one fillinj^ up the fl;iis by authority of the State for any )iiiblic purj)ose. Gerhard v. Commission! rs, 15 R. I. 334, 5 Atl. Rep. 199; Clark r. City of Providence, 16 R. I. 337, 15 Atl. Rep. 763. 3 Ladies' Friend Soc. ;; Halstead, 58 Conn. 144, 19 Atl. Rep. 658; Prior v. Swartz, 62 Conn. 132, 136-138, 25 Atl. Rep. 398. The exercise of this tight is subject to all regulations the State may see fit to impose by authorizing commis- sioners to establish harbor lines or other- wise. State v. Sargent, 45 Conn. 358. But it has been intinuued liiat ir caiiiiot be appropriated by the Siate to a different public use without comjicns.ition. Farist Steel Co. I'. Bridgejiort, 60 Conn. 278, 22 Atl. Hep. 561. •* Maine: Clanccy v. Iloudletie, .■!9 Me. 451 ; Parsons v. Clark, 76 .Me. 476 ; Hmi- rows (). McDermott, 73 Me. 441 ; Low i\ Knowlton, 26 Me. 128, 45 Am. Dec. 100; Moulton V. Libbey, 37 Me. 472, 485, 59 391 §4,1),] DKSCRirTION- AND liOUNDARlES. does not ap[)lv to sti-cains a^DVc the luiinl where they iir(^ affected bv the ebb aiul i\n\\ of the tide ; but it applies wherever the tide ebbs and ilows, though the water be fresh and is merely thrown back by the inlhix of the sea.^ In tlicse States a bnuiidai-y by the sea or seashore, or beaeli or Uda-wAivr, prhna facie incbides the bind between high and h)W^ water mark to the extent of the grantor's title.^ ^\ drcd witli such a bouiuhiry passes the fiats ailjniniiig tlie U[)hind eonvi-yt'd, thougli the description, botli as regards the quantity of hmd conveyed and the length of the lines, would be satistied by a[)[)lying it to the upland alone/'^ A boundary by a tidal creek, the bed of which is bare at, low water, prima facie conveys the title to the centie of the channel of the creek."* The grant of a wdiarf will cairy witli it the grantor's flats in front of the wharf to low-water mark, unless tliere are words in the deed that restrict its operation in respect to the land covered by the water. ^ The title to an island situated within one hundred rods from Am. Dec. 57 ; Snow v. Mt. Desert Isl. Co. 84 Me. 14, 34 All. Rep. 429. Massachu- setts : Litchfield v. Scitu.ite, 136 M;iss. 39 ; Storer v. Freeman, 6 Mass. 43.5, 4 Am. Dec. 155 ; Commonwealth v. Kox- bury, 9 Gray, 451 ; Common wealth v. Alger, 7 Cush. 53; Sale v. Pratt, 19 Pick. 191 ; Boston v. Richardson, 13 Allen, 146, 105 Mass. 351, 355. The owner's title ex- tends to extreme low-water mark. *5ewaii <0o- •). Boston Wotpr-Povver Co. 147 Mass. 61, 16 N. E. Rep. 782. New Hampshire: Clement v. Burns, 43 N. II. 009 ; Niukl v. Hobbs, 17 N. H. 524. Connecticut: There may be private ownership lietween hi:j;h and low water mark, and use for any pur- pose that does not interfere with public interest. East Haven v. Hemini^way, 7 Conn. 186; Ladies' Friend See. v. Ilal- stead, 58 Conn. 144, 19 Atl. Hep. 658 ; Nichols V. Lewis, 15 Conn. 137. 1 Attorney-General v. Woods, 108 Mass. 436, 11 Am. Re|). 380; Lapish v. Banyor Bank, 8 Me. 85. 2 Doane v. Willcul, 5 Gray, 328, 66 Am. Dec. 369 ; Storer v. Freeman, 6 Ma-s. 435, 4 Am. Dec. 15.t; Charlcstown ??. Tufts, 111 Mass. 348; Dr^ikc c. Cuni.s, 1 Cush. 395; Valentine v. Pijier, 22 Piik. 392 85,33 Am. Dec. 715; Boston v. Uicliard- son, 105 Mass. 351, 13 Allen, 146; Sal- tonstall r. Lon- Wharf, 7 Cush. 195 ; Green v. Chelsea, 24 Pick. 71 ; Jackson V. Boston & W. R. R. Co. 1 Cush. 575 ; Hathaway v. Wilson, 123 Mass. 359; Litchfield V. Scituate, 136 Mass. 39; Ilai- low y. Fi.sk, 12 Cush. 302; Litchfield /-. Ferguson, 141 Mass. 97, 6 N. E. Rep. 721. Maine : Montgomery v. Reed, 69 Me. 510 j King i: Young, 76 Me. 76; Pike v. Mon- roe, 36 Me. 309, 58 Am. Dec. 751 ; Ste- vens V. King, 76 Me. 197; Erskine v. Moulton, 66 Me. 276 ; Winslow v. Parten, 34 Me. 25 ; Moore v. Griffin, 22 Me. 350 ; Snow V. Mt. Desert Isl. Co. 84 Me. 14, 34 Atl. Rep. 429 ; Babson v. Tainter, 79 Me. 368, 10 Atl. Rep. 63. 3 Mayhew i\ Norton, 17 Pick. 357, 28 Am. Dec. 306 ; King r. Young, 76 Me. 76, 49 Am. Rep. .'590. ■* Harlow v. Fi>k, 12 Cush. 302; King V. Young, 76 Me. 76, 49 Am. Rep. 596. 5 Central Wharf v. India Wharf, 123 Ma>s. 561, 566, per Gray, C. J. ; Common- wcaMi V. A\j.ev, 7 Cu-h. 53; Wheeler v. Stone, 1 Cush. 313 ; Amniidown r. Gran- ite Bank, 8 Allen, 285; A.-hby /•. K strra n. i;. Co. 5 Met. 368, 38 Am. Dec. 426. BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§§ 477, 478. the oj)posite upland, there being no channel between the island and the mainland at low watei-, does not extend, as between the island and the mainland, unless hj special grant, to any flats cir- cling the island, except such as lie on the sea side of the island, between the island and the receded sea,^ 477. There is a presumption that the grantor conveys the title to land covered by water so far as his own title extends, whether the conveyance is bounded by the sea, a tidal river, or a fresh-water stream, unless he express!}' reserves the land under the water, or the terms of the deed indicate an intention to reserve it.^ The presumption is similar to that already mentioned which pertains to a conveyance bounded by a highwav, street, or private way. It is also a presumption founded upon a similar reason ; and that renson is, tliat the land adjacent to the bank of a stream, or to the shore of the sea or other tidal waters, is ne- cessary or valuable to the adjoining proprietor, but ordinarilv is of no use to one who has conveyed his land bounded upon the water. 478. This presumption may always be overcome by lan- guage in the deed showing an intention not to convev' an}- title to the land covered by water. -^ The grantee's title will be limited to the shore land in case he purchases by a plat which shows that the land in front of the granted land is platted into blocks which 1 Babson v. Tainter, 79 Me. 368. Pe- ters, C. J., said: "What riyht iu flats, islands situated within the one hundred rods from high-water mark at the shore shall have, when not regulated by the special terras of any grant, seems not to have been very much considered in the cases. The ordinance is in very general terms. The colonial government oi the mother commonwealth granted the great boon to landholders without much thought or intimation about the manner of divid- ing tlie flats among its grantees. No rule can compass all cases. The Massachu- setts court has adopted different rules for different classes of cases, and has fre- (piently hud occasion to remark upon the ilifl[ic-nlty and endiarrassment atti'iidiiig a j)ractical application of any construction of the ordinance. Gray i'. Dcliice, .5 Cush. 9; Rust V. Mill Corporation, 6 Pick. 158 ; Commonwealth v. Alger, 7 Cash. 53, 69. . . . Our own rule has not received much commendation fiom other courts. Emer- son V. Taylor, 9 Me. 42, 23 Am. Dec. 531, 537, with note ; Stockham v. Browning. 18 N. J. Eq. 390; Treat v. Ciiipman, 35 Me. 34 ; Call v. Carroll, 40 Me. 31." - Boston V. Richardson, 13 Allen, 146; Pratt V. Lamson, 2 Allen, 275 ; Ingraham V. Wilkinson, 4 Pick. 268, 16 Am. Dec. 342; Paine v. Woods, 108 Mass. 160; Brown v. Chadbourne, 31 Me. 9, 1 Am. Dec. 641 ; Starr v. Child, 20 Wend. 149, 4 Hill, 369, 5 Denio, 399; Carter ^!. Rail- way Co. 26 W. Va. 644 ; Cobb v. Lavalle, 89 III. .331, 31 Am. Rep. 91; Plouck f. Yates, 82 III. 179. 3 Hatch V. Dwight, 17 Mass. 289, 9 Am. Dec. 145 ; Morrison v. Keen, 3 Me. 474; People v. Madison Co. 125 111. 9, 17 N. K. Hep. 147. 393 § 479.] DESCRIPTION AND BOUNDARIES. have boi'U solil or reserved for sale ; and he acquires no riparian ri>'hts in the unplatted land between the water blocks and navi- <»able water; foi' the plat contemplates on its face that the exte- ri'M' liui' of the outermost bU)eks is to be treated as the shore line, and that the rights usually appurtenant to riparian land attach to these blocks.^ 479. Of course the owner in any sale may sever the up- land from the flats, selling either without tlie other at his pleas- ure.- He may by appropriate words restrict his conveyance to the line of high water.-'^ Thus a deed calling for a line running to the shore or bank of a tide-iiver and thence along the bank or shore, or for a line running on the beach or shore of the sea, ex- cludes the shore or flats, which is the term applied to the ground between hiofh and low water mark.* The bank or shore becomes a monument limiting the land thereto when the deed clearly shows this to be the intention of the grantor. But when the land is described as bounded by a monument standing on the bank of a tidal stream, or on the shore of the sea and thence by the stream or sea, the monument does not generally restrict the boundary to the bank or shore.'^ Moreover, while a boundary by tiiH shore is ordinarily a boundary by high-water mark, yet it may appear from the whole instrument and from monuments referred to that the term was used as importing low-water mark. The word may always be controlled by other expressions used in the conveyance.*^ A deed conveying a parcel of land bounded by 1 Gilbert v. Einersou, 55 Minn. 254, 261, Am. Dec. 715 ; Storer v. Freeman, 6 Muss. 56 N. W. Kep. 818. Mitchell, J., said: 435; Palmer r. Fairell, 129 Pa. St. 162, " Tiie platiinir of these water-blocks, and convi-yiny: them with reference to the plat, niiinife-tly contemplated reclainiinf^ them and filling them in, or otherwise improving 18 Atl. Rep. 761. 3 Duulap r. Stetson, 4 Mason, 349 ; Nickerson v. Crawford, 16 Me. 245. ^ Montgomery o. Reed, 69 Me. 510; tliem for ii.se; and we cannot see what Nickerson y. Crawford, 16 Me. 245 ; Brad- difference it makes whether this hud been ford v. Cressey, 45 Me. 9; Stone v. Au- done before tiie grantor conveyed, or was gnsta, 46 Me. 127; Brown t-. Heard, 85 only in cunteniiilaiion." Me. 294, 27 Atl. Rep. 182; Litchfield v. -Ladies' Friend Society v. IlaUiead, Fer^insoii, 141 Mass. 97, 6 N. E. Kep. 721 ; 58 Conn. 144, 19 Atl. Rep. 6.t8 ; Er.>kine Storer r. P'reeman, 6 Mass. 435, 4 Am. V. Moulton, 66 ile. 276, 84 Me. 243, 24 Dec. l')5; Chapman v. Edmauds, 3 Allen, All. Rep. 841 ; Stone v. Au<:u-la. 46 Me. t^X'l : Niles r. Patch, 13 Gray, 234; Litch- 127 ; Knox y. Pickering, 7 Me. 106; Deer- field c. S^itnate, 136 Ma.ss. 39; East ing V. Long Wharf, 25 Me. 51 ; Porter Jianiploii v. Kirk, 68 N. Y. 459, 463. V. Sullivan, 7 Gray, 441, 447, per Shaw, ^ ]■:r^kine c. Moulton, 66 Me. 276; Pike C. J.; Lufkin v. Haskell, 3 Pick. 356; r. .Miniroc, .'Ui Me. 309, 58 Am. Dec. 751. Valentine v. Piper, 22 Pick. 85, 94, 33 « Hathaway v. Wilson, 123 Mass. 359, 394 BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§ 480. the sliore of the sea at high-water mark, "including all the privi- leges of the shore to low-water mark," was held to pass the fee in the land to low-water mark.^ Under a statute giving the owner of land on tide-water the title to low-water mark, a conveyance by metes and bounds which are substantially coincident with high-water mark carries all the rights of the grantor to the strip lying between high and low water mark.- If land be described as running " to a cove and thence along the margin of the cove," the grant excludes adjoining flats,'^ The same effect follows when the call is " on the west bank of the creek ; " ^ also where the words are "■ by the bank of the stream." ^ 480. The land covered by fresh-water streams not naviga- ble is prima facie the property of the riparian proprietors, usque ad filum aquse.*^ If the same person owns the land on both sides uf the stream, he owns the entire river-bed so far as his lands extend.' One who owns the bank on one side of the stream only, owns the bed of the stream ad medium filum aquce. By the common law, even such rivers as the Mississippi, the Missouri, the Ohio, the Hudson, and the Connecticut and other great rivers, above the point where the tide ebbs and flows, are not navigable rivers, though they are navigable in fact ; and therefore, where such a river forms the boundary of land the grantee becomes a riparian owner, and his grant extends to the centre of the river.^ 361, per Gray, C. J. ; Litchfield v. Scitu- rence in New York, — as well as in Ohio, ate, 136 Mass. 39. Illinois, Michigan, and Wi>cunsin. But 1 Dillingham i'. Roberts, 75 Me. 469, it has been wholly rejected as to rivers 46 Am. Kep. 419. navigable in fact, in Pennsylvania, Vir- - McDonald V. Wliitehurst, 47 Fed. Rep. giuia, and North Carolina, and in most of 757. the new States." Shively v. Bowlby, 152 3 Nicker.son i-. Crawford, 16 Me. 245. U. S. 1, 14 Sup. Ct. Rep. 548, per Gray, ■i Bradford '•. Cres.scy,45 Me. 9. J. ; Hardin v. Jordan, 140 U. S. 371, 11 5 Stone V. August!!, 46 Me. 127. Sup. Ct. Rep. 808, 838. 6 Lord Hale, in Harg. Law Tracts, 5 ; ' Packer v. Bird, 137 U. S. CGI, 11 Sup. Bickett r. Morris, L. R. 1 H. L. Sc. 47; Ct. Rep. 210 ; Smith v. Roche>ter,92 N. Y, Murphy v. Ryan, 2 Ir. Com. Law, 143; 463.44 Am. Rep. 393; People i7. Jones, Ewing V. Colquhoun, 2 A^^p. Cas. 839. 112 N. Y. 597, 20 N. E. Hep. 577; Dela- "The rule of the common law on this plainc i>. Chicago & N. W. Ry. Co. 42 Wis. point appears to have been followed in all 214, 24 Atn. Rep. 386 ; Gavii v. Chambers, the orijiiuiil States, — except in Peiiii- 3 Ohio, 495; Benner r. I'latter, 6 Ohio, sylvania, Viruinin, and North Carolina, 504; Rockwell ;,'. Baldwin, 53 111. 19. and except as lo 1:1 cat rivers, .such as the ^ St. Louis v. Rutz, 138 U. S. 226, 11 Hudson, tlie .Mohawk, and the St. Law- Sup. Ct. Rep. 337; Jones v. Soulard, 24 395 n-'lj DKSCRIPTION AND nOUXDAKlES. 481. In many States the common-law rule as regards navi- gable lakes and rivers has been changed, and in its place the civil-law lull' lias been adopted, which recognizes as navigable all streams and lakes which are really so, though tliey are not tide- water rivers.^ This has now become the pie vailing doctrine in How. 41 ; Hardin v. Jordan, 140 U. S. .371, 1 1 Still. Ct. lli'p. 808, 838, au Illinois case. Connecticut : Adams c. Pease, '2 Conn. 4S1 . Illinois : Fuller v. Dauphin, 124 111. 542. IG N. E. Hep. 917; Ilouek v. Yates, 82 III. 179; Middleton v. Pritchard, 4 111. 510, 38 Am. Dec. 112; Cobb v. Lavalle, 89 111. 331, 31 Am. Rep. 91 ; Braxon v. Bressler, 64 111. 488 ; Beckiiian v. Krea- mer, 43 111. 447 ; Chieaj;o & Pac. R. Co. V. Stein, 75 111 41 ; Chieago v. Laflin, 49 111. 172; Butteruiuli i;. St. Louis Bridge Co. 123 111. 535,550, 17 N. K. Rep. 439; Trustees v. Schroll, 120 111. 509, 12 N. E. Rep. 243, 60 Am. Rep. 575; Wasliington Ice Co. V. Shortall, 101 111. 46,40 Am. Rep. 196. Maine : Brown r. Chadlmurue, 31 Me. 9, 1 Am. Dec. 641. Maryland: Browne v. Kennedy, 5 H. & J. 195, 9 Am. Dec. 503. Massachusetts: Commonwealth V. Vincent, lOS ^la.ss. 441, 447 ; Common- wealth V. Chapin, 5 Pick. 199, 16 Am. Dec. 386 ; Kuii;ht v. Wilder, 2 Ciish. 199, 209, 48 Am. Dec. 660 ; Commonwealth V. Alger, 7 Cush. 53, 97, 101, jjer Shaw, C. J.; Lunt v. Holland, 14 Mass. 149. Michigan: Backus v. Detroit, 49 Mich. 110, 13 N. W. Rep. 380, 43 Am. Rep. 447 ; Watson V. Peters, 26 Mich. 508; Ryan r. Brown, 18 Mich. 196 ; Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435 ; \Vel)l)er r. Pere Marquette Boom Co. 62 Mich. 026, 30 N. W. Rep. 469. Mississippi: I'lie Magnolia v. Marshnll, 39 Miss. 109 ; Mor- gnn r. Reading, 3 S. & M. 366. New Hampshire : Claremont i\ Carlton, 2 X. H. 369, 9 Am. Dec. 88. Ne-.v Jersey: Attoiney-G<-neral v. Del. & B. Brook R. Co. 27 X. J. V.q. 631 ; Kannuse v. Slock- bower, 4S X. ,1. Eq. 42, 21 Atl. Rep. 197. North Carolina: Bond c. Wool, 107 N. C. 139, 140, 12 S. E. Rep. 2S1 ; State v. Glen, 7 .Jones L. 321. 325; Williams /■. Buchanan, 1 Ired. L 535, 35 Am. Dec. 396 760. Ohio: June v. Purcell, 36 Ohio St. 396; Ciavit, v. Chambers, 3 Ohio, 496 ; niaiiehard y. Porter, 1 1 Oliio, 138; Walker r. Public Work<, 16 Ohio, 540. Oregon: Moore v. Willamette, T. & L. Co. 7 Oieg. 355. South Carolina: McCullough v. Wall, 4 Rich. 68, 53 Am. Dec. 755; State V. Columbia, 27 S. C. 137,3 S. E. Rep. 55. Tennessee : Holbert r. Edetis, 5 Lea, 204, 40 Am. Ik'p. 26. Wisconsin: Nor- cross i;. Giiffiths, 65 Wis. 599, 27 N. W. Rej). 606, 56 Aui. Rep. 642 ; Jones ;;. Pet- tibone, 2 Wis. 308. 1 Alabama: Hess v. Cheney, 83 Ala. 251, 3 So. Rep. 791 ; Williams u. Glover, 66 Ala. 189; Bullock (,-. Wilson, 2 Port. 436. California: Packer r. Bird, 137 U. S. 661, 11 Sup. Ct. Rep. 210, 71 Cal. 134, 11 Pac. Rep. 873 ; Lux v. Hagunn, 69 Cal. 255, 10 Pac. Rep. 674. Indiana : Martin v. Evansville, 32 Ind. 85. Iowa: McManus V. Carmichael, 3 Iowa, 1 ; HaiLiht v. Keo- kuk, 4 Iowa, 199 ; Tomlin v. Dubuque R. R Co. 32 Iowa, 106, 7 Am. Rep. 176; Wood V. Railroad Co. 60 Iowa, 456, 15 N. W. Rep. 284 ; Barney v. Keokuk, 94 U. S. 324. Kansas: Wood v. Fowler, 26 Kan<. 682, 689, 40 Am. Rep. 330. Ken- tucky: Tburman v. Morrison, 14 B .Mon. 367. Minnesota: Lam]»rey '■. State, 52 Minu. isi, .53 N. W. Rep. 1139. Mis- souri: Benson v. Morrow, 61 Mo. -345, 351 ; Meyers v. St. Louis, 8 Mo. Ap)). 266. North Carolina : Wilson v. Porhes, 2 De\'. 30; Collins v. Benbury, 3 Ired. L. 277, 38 Am. Dec. 722; State v. Glen, 7 Jones L. 321 ; Broadnax v. Baker, 94 N. C. 675, 681, 55 Am. Rep. 633; Hodges r. Wil- liams, 95 N. C. 331, 59 Am. Rep. 242; Fagan i: Armstead, 11 Ired. 4.33 ; State V. Eason, 114 N. C. 7'*7, 10 S. E. Rep. . 88. New York: Smith r. Rorbcster, 92 N. Y. 4i)3, 44 Am. Rep. 393; People?'. Jones, 112 X. Y. 597, 20 N. E. Rep. 577 ; BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§ 4«1- this country. The earliest judicial statement of it is found in a case before the Supreme Court of Pennsylvania in 1807, in which Chief Justice Tilghman, after observing that tiie rule of the common law upon the subject had not been adopted in Penn- sylvania, said: "The common-law principle is, in fact, that the owners of the banks have no right to the water of navigable riv- ers. Now, the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some ot the cases assert that by navigable rivers are meant rivers in which there is no flow or reflow of the tide. This defi- nition may be very proper in England, wliere there is no river of considerable importance as to navigation which has not a flow of the tide ; but it would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches." ^ Congress, by early legislation with regard to the survey of public lands, recognized the same rule, declaring that navigable rivers shall be public highways.^ In view of this legislation the Federal courts, in construing grants of the United States, hold that the common-law rules of riparian ownership do not apply to navigable streams, even in People V. Canal Appraisers, 33 N. Y. 461 ; rope and which took its rise in a country Canal Commissioners v. People, 5 Wend, where there was a tideless sea, recognized 423, 17 Wend. 571. See Commission- all rivers as navigable which were really so ; and this common-sense view was adopted by the early founders of Penn- sylvania, whose province was intersected by large and valual)ie streams, some of which are a mile in breadth." The Supreme Court of the United States has recognized these precedents as binding in cases coming from that State. Rundle v. Canal Co. 14 How. 80, 91, 93, 94; Fisher v. Ilaldeman, 20 How. 186, 194. South Carolina: Catos ?>. Waiiling- toi), 1 McCord,-580. Tennessee: Stdart V. Clark, 2 SwMn, 9. KMer v. Htirrns. Ilnmpli. 3.58. West Virginia : Brown Oil Co. v. CMldwcll. .'i.^. W. V.i. 95, i;) S. E. Rep. 42. ' Carson v. iJlazer, 2 IJiun. 475, 477, 478, 4 Am. Dec. 46^. '^ Act of Miiy 18, 1796, ch. 29, § 9, 1 Stats, at Large, 468 ; R. S. § 2476. 397 ers I'. Kempshall, 26 Wend. 404. Penn- sylvania : The common-law doctrine was never recognized here. Wood v. Ap- pal, 03 Pa. St. 210; Carson v. Blazfr, 2 Binn. 475, 4 Am. Dec. 463; Mononga- hela Bridge Co./-. Kirk, 46 Pa. St. 112, 84 Am. Dec. 527. In the latter case Read, J., delivering the opinion, said : ■" We are aware that, by the common law of Kngland, such streams as the Missis- sippi, the Mi.ssouri, the rivers Amazon and IMatte, the Rhine, the Danube, the Po, the Nile, the Kuphrates, the Ganges, and the Indus were not navigable rivers, but were the subject of private property ; whilst an insitrniticant creek in a .small i.s- land was elevated to the dignity of a ]nib- iie river, because it was so near the ocean that the tide ebbed and flowed uj) the whole of its petty course, 'i'he Ronnin law, which has pervaded Continental Eu- § 482.] DESCRIPTION AND BOUNDARIES. tlioso States in wliich this rule has been adopted.^ " But what- ever iiu'idents or riglits attach to the ownersliip of property con- veveil bv the Li;overuinent will he determined by the States, subject to the condition that their rules do not iin[);iir the efHeienc}^ of the grants, or the use and enjoyment of the property by the grantee. As an incident ff such ownership the right of the riparian owner, where the waters are above the influence of the tide, will be lim- ited, accortling to the law of the State, either to low or high water mark, or will extend to the middle of the stream." ^ Xhe ques- tion, whether a riparian owner holds the fee to the middle thread of the stream or the river's bank, is governed by the law of the States. It depends upon the laws of each State to what extent the prerogative of the State to lands under water shall extend; and therefore it happens that the Mississippi River, by the settled policv of the State of Iowa, is regarded as a navigable river, and the title of a riparian owner on the banks of this liver extends only to ordiiuiry high-water mark, and that the shore between high and low water mark, as well as the bed of the river, belongs to the State ; while on the other side of the same great river, in the States of Illinois and Mississippi, the common-law doctrine pi-evails, and in those States the title of the riparian proprietor extends to the middle of the current.^ 482. A division of waters into public and private waters has been adopted in some recent decisions, and undoubtedly the tendency is to extend and assert public rights as against private ownership in lakes and rivers, without much regard to any test or definition of navigability. The tendency is well illustrated in a recent important decision of the Supreme Court of Miimesota, in which Mr. Justice Mitchell says: ''In this country, while still retaining the common-law classification of navigable and non-navi- gable, we have, in view of our changed conditions, rejected its test of navigability, and adopted in its place that of navigability in fact; and, while still adhering to navigability as the criterion whether waters are public or private, yet we have extended the 1 Packer v. Bird, 137 U.S. 601, 11 Sup. Sup. Ct. Rep. 337 ; Packer r. Bird. 137 Ct. Rep. 210; Railroad Co. v. Schurmeir, U. S. 6bl, 11 Sup. Ct. Rep. 210; St. Louis 7 Wall. 272, ;iffirniing Schurmeir v. Rail- v. Myers, 113 U. S. .56f>, .'> Snp. Ct. Rep. road Co. 10 Minn. 82, 88 Am. Dec. .59. 640; Bnriiey r. Keokuk, 94 U. S. 324; 2 Packer v. Bird, 137 U. S. 661, 669, Ilrtrdiii r. .Ionian, 140 U. S. 371, 11 Sup. ])er Field, .J. Ct Rep. 808, 838. * St. Louis V. Rntz, 138 U. S. 226, 11 398 BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§ 4S2. meaning of tliiit term so as to declare all waters public highways which afford a cliainiel for any useful commerce, including small streams, merely floatable for logs at certain seasons of the year. Most of the definitions of 'navigability' in the decided cases, while perhaps conceding that the size of the boats or vessels is not important, and, indeed, that it is not necessary that naviga- tion should be by boats at all, yet seem to convey the idea that the water must be capable of some commerce of pecuniary value, as distinguished from boating for mere pleasure. But if, umJer present conditions of society, bodies of water are used for public uses other than mere commercial navigation in its ordinary sense, we fail to see why they ought not to be held to be public waters, or navigable waters, if the old nomenclature is preferred. Cer- tainly, we do not see why boating or sailing for pleasure should not be considered navigation, as well as boating for mere pecu- niary profit. ... If the term ' navigable ' is not capable of a sufficiently extended meaning to preserve and protect the rights of the people to all beneficial public uses of these inland lakes to which they are capable of being put, we are not prepared to say that it would not be justifiable, within the principles of the common law, to discard the old nomenclature and adopt the clas- sification of public Avaters and private waters. But, ht)weveL' that may be, we are satisfied that, so long as these lakes are capa- ble of use for boating, even for pleasure, they are navigable within the reason and spirit of the common-law rule. When the waters of any of them have so far receded or dried up as to be no longer capable of any beneficial use by the public, they are no longer public waters, and their former beds, under the principles already announced, would become the private property of the riparian owners." ^ A boundary upon a public navigable river or lake is a boun- dary by the edge of the watei- at ordinar}^ low-water mark; that is, the deed with such boundary passes to the grantee the title to the land between such stage of the water and high-water mark. 2 In acoi'dance with this rule, where a navigable river is one of the boundaries of a municipality, the low-water line, and not the 1 Lamproy v. Slate, r)2 Minn. 181, 199, Rep. 791 ; Williams v. Glover, 66 Ala. 200, .53 N. W. Rep. 1 139. 189. 2 Hess V. Cheney, 83 Ala. 251, 3 So. 399 §§ 483, 484.] i)i:scKii'TioN and boundaries. thread of the streiiu), is the boundary, in the absence of expres3 lan>'iiai;e to the contrary in the act of incorporation.^ 483. The rule to determine the division line between adjoin- ing holdings in the shallow waters of the ocean, or of a navi- gable river or lake, of owners of hmd boinU'ring thereon, and lo- catO(.l (111 a curved or inei;uhir shore, is (1) to measure the whole extent of the shore line, and compute how many rods, yards, or feet each riparian pro[)rietor owns thereon ; (2) to divide the navigable water line into as many ecpial parts as such shore line contains rods, yards, or feet, and then appropriate to each pro- prietor as many of such j)arts of such navigable water line as he owns i-ods, yards, or feet of the shore line ; and (3) to draw a line from the point of division on the shore line to the point thus deter- mined as the point of division on the navigable water line. This general rule was early adopted in Massachusetts, and has since been adhered to there, and adopted by the United States courts, and the courts of New York, Michigan, and Wisconsin.- 484. A sale of land bounded on a non-tidal river (except ■where the common law has been changed in respect to rivers 1 Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601 ; Ogdensburj^h v. Lyon, 7 Lans. 215; State v. Eason, 114 N. C. 787, 19 S. E. Rep. 88; Brown Oil Co. V. Caldwell, 35 W. Va. 95, 13 S. E. Rep. 42. - Deerfield v. Arms, 17 Pick. 41, 28 Am. Dec. 276; Rusty. Mill Corp. 6 Pick. 158; Sp.'irhawk v. Bullard, 1 Met. 95; Hopkins Academy v. Dickinson, 9 Cusli. 552 ; VVonson v. Wonson, 14 Allen, 71, 85 ; Johnston v. Jones, 1 Black, 209, 223 ; Jones V. Johnston, 18 How. 150; O'Donnell V. Kelsey, 10 N. Y. 412; Nott v. Thayer, 2 Bosw. 10; Blodi;ett, &c. Co. ;;. Peters, 87 Mich. 498, 506, 507, 49 N. W. Rep. 917 ; Northern Pine Land Co r. Bigelow, 84 Wis. 157, 54 N. W. Rep. 496 ; Mena-ha Ware Co. v. Lawson, 70 Wis. 600, 36 N. W. Rep. 412. In the Michigan case Cham- plin, C. J., speaking for the court, said : " The object to be kept in view in cases of this kind is to secure to each proprietor access to navigable water, and an equal share of the dockage line at navigable water in proportion to his share on the 400 original shore line of the bay. . . . We cannot deal with Green Bay as we would with the rivers in this State, where the lines are to be drawn at right angles to the thread of the stream. The rules laid down for the boundaries of owners of land bordering upon the ocean and great inland seas are more jjroper for the dis- position of the case before us." And see Bay City Gaslii:ht Co. v. Industrial Works, 28 Micii. 182 ; Clark v. Campau, 19 Mich. 325; Batchelder v. Keniston, 51 N. H. 496; Aborn v. Smith, 12 R. I. 370; Emerson v. Taylor, 9 Me. 42; Newton v. Eddy, 23 Vt. 319 ; Delaware, L. & W. R. Co. V. Hannon, 37 N. J. L. 276 ; Stockham V. Browning, 18 N. J. Eq. 390. In Attor- ney-General V. Boston Wharf Co. 12 Gray, 5.53, 558, the court say that, "in general, where there are no circumstances or pe- culiarities in the formation of the shore or the course of the channel, the lines of division are to be made to tie channel in the most (ilnct ciiursc from the lateral bnundaries of the several tracts of upland to which the flars are appended." BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§ 485. navigable in fact) passes the title ad medium fllum aquae, unless there is something in the deed to indicate an intention to restrict the title to the hank of the river. ^ The effect of the deed depends upon its terms and the presumptions arising there- from, unless the terms used are uncertain or ambiguous, so that parol evidence is admissible to explain them.^ 485. By the thread of the stream is strictly meant the centre of the main channel of the stream.'^ Ordinarily the 1 Mickletliwait y. Xewlay Brid}:e Co. 33 Ch. D. 133 ; Wright v. Howard, 1 Sim. & Stu. 190, 203; Devonsliire u. Patiinson, L. R. 20 Q. B. D. 263 ; Thomas v. Hatch, 3 Sumn. 170; Hardiu v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808. Colorado : Den- ver V. Pearee. 13 Colo. 383, 22 Pac. Rep. 774. Connecticut : Adams v. Pease, 2 Comi. 481 ; Warner c. Southworth, 6 Conn. 471. Illinois: Houek v. Yates, 82 111. 179; Braxon v. Bressler, 64 111.488; Trustees V. Schroll, 120 111. 509, 12 N. E. Rep. 243, 60 Am. Rep. 57.5; People v. Madison Co. 125 111. 9, 17 N. E. Rep. 147 ; Indiana: Ross V. Faust, 54 Ind. 471, 23 Am. Rep. 655 ; Brophy v. Richeson (Ind.), 36 N. E. Rep. 424; Indiana v. Milk, 11 Biss. 197, 11 Fed. Rep. 389; Ridgway v. Ludlow, 58 Ind 248; Edwards v. Oj:le, 76 Ind. 302. Kentucky : Berry v. Snyder, 3 Bush, 266, 96 Am. Dec. 219 ; Williamsburg Boom Co. V. Smith, 84 Ky. 372, 1 S. W. Rep. 765. Maine: Warren r. Thomaston, 75 Me. 329, 40 Am. Rep. 397 ; I'ike v. Monroe, 36 :Me. 309, 58 Am. Dec. 751 ; Granger r. Avery, 64 Me. 292 ; Xickerson V. Crawford, 16 Me. 245; Hathorn v. Stin.son, 10 Me. 224, 227, 25 Am. Dec. 228; Lapi.-h i-. Bangor Bank, 8 Me. 85; Morrison v. Keen, 3 Me. 474. Massachu- setts : King V. King, 7 Mass. 496 ; Hatch r. Dwight, 17 Mass. 289,9 Am. Dee. 145; Ingraham v. Wilkinson, 4 Pick. 268, 16 Am. Dec. 342 ; Commonwealth r. Alger, 7 Cush. 53. Michigan: Twogood r. II"yt, 42 Mich. 609, 4 N. W. Rep. 445; Lor- man v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Norris v. Hill, 1 Mich. 202; Moore V. Sanborne, 2 .Mich. 519. Minnesota: Lamprey v. State, 52 Minn. 181, .53 N. VOL. I. W. Rep. 1139. New Hampshire : State V. Canterbury, 28 N. H. 195 ; Greeiiliaf v. Kihon, 11 N. H. 530; State v. Gilmauton, 9 N. H. 461 ; Claremont v. Carlton, 2 N. H. 369, 9 Am. Dec. 88 ; Sleeper v. Laco- nia, 60 N. H. 201,49 Am. Rep. 311 ; Nich- ols V. Suncook Mauuf. Co. 34 N. H. 345. New Jersey : Kanouse v. Slockbower, 48 N. .J. Eq. 42, 21 Atl. Rep. 197. New York : Smith v. Rochester, 92 N. Y. 463 44 Am. Dec. 393; People v. Jones, 112 N. Y. 597, 20 N. E. Rep. 577 ; Morgan v. King, 35 N. Y. 454; People v. Canal Ap ]jraisers, 13 Wend. 355 ; Canal Commis sioners v. People, 5 Wend. 423 ; Canal Apjjraisers v. People, 17 Wend. 571. Ohio : Niebaus v. Shepherd, 26 Ohio St. 40; Hopkins v. Kent, 9 Ohio, 13; Gavit r. Chambers, 3 Ohio, 495. Rhode Island: Hughes v. Providence & W. R. Co. 2 R. I. 508. South Carolina : McCullough v. Wall, 4 Rich. 68, 53 Am. Dec. 715. Ten- nessee : Martin v. Nance, 3 Head, 649. Virginia: Crenshaw v. Slate River Co. 6 Rand, 245; Hayes v. Bowman, 1 Rand, 417. West Virginia: Carter v. Railway Co. 26 W. Va. 644 ; Camden v. Creel, 4 W. Va. 365. Wisconsin: Norcross v. Griffiths, 65 Wis. 599, 27 N. W. Rep. 606, 56 Am. Rep. 642; Arnold v. Elmore, 16 Wis. 509; Chaiidos v. M:uk, 77 Wis. 573, 46 N. W. Rep. 803. - See §§ 338, 339. In Devonshire v. Pattinson, L. R. 20 Q. B. 263, the pre- sumjjtion that the conveyance included tiic bed of the, river iis(iue ad mfdiuin fVnin was rebutted l>y jiroof of surrounding circumstance-^. 3 Cessill V. State, 40 Ark. 501. 401 § 485.] DESCRIPTION AND BOUXDAKIKS. niitlillo line between the shoivs is regarded as the thread of the stn-am, taking it in the natural and ordinaiy stage of the water, irrespective of the deptli of the channeh^ Moreovei-, it is the middle line of the stream for the time being that is the boundary. The boundary line may change from time to time by the gradual wearing away of tlie bank upon one side of the stream and the di^positing of tlie soil upon the opposite side, and the land before covered by water belongs to the riparian proprietoi',^ though, if the bed of the stream be suddenly changed by a freshet, the boun- dary is not changed ; the ownership remains according to former bounds.^ If one owning land on both sides of a river grants the land on the westerly side of it, bounding it by the river, the grant in- cludes an island lying between the westerly bank and the middle of the main channel of the river."* If such owner in making a grant excepts an island, he makes the thread of the channel between the island and the mainland the boundary.^ If an island, grad- 1 Hopkins Academy v. Dickinson, 9 Cush. 552 ; Warren v. Thoniaston, 75 Me. 329, 46 Am. Rep. .397 ; Boscawen v. Can- terbury, 23 N. H. 188; McCulIongh v. Wall, 4 Rich. 68, 53 Am. Dec. 715. 2 Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. Rep. 396; St. Louis v. Rutz, 138 Burlcyson, 106 N. C. 381, 11 S. E. Rep. 590 ; Niehaus v. Shepherd, 26 Ohio St. 40 ; Lamb v. Rickets, 11 Ohio, 311; Collins V. State, 3 Tex. Ct. App. 323 ; Jones v. Pettibone, 2 Wis. 308; Walker v. Shep- ardson, 4 Wis. 486, 65 Am. Dec. 324. The fact that accretions are due U. S. 226, 11 Sup. Ct. Rep. 337; New wholly or in part to obstructions placed Orleans v. United States, 10 Pet. 662, in the river by third parties does not pre- 717; Jones v. Soulard, 24 How. 41; vent the riparian owner from acquiring Banks v. Ogden, 2 Wall. 57; Saulet v. title thereto. Tatum v. St. Louis (Mo.), Shepherd, 4 Wall. 502; St. Clair v. Lev- 28 S. W. Rep. 1002. ingston, 23 Wall. 46 ; Jefferis v. Land Co. s gt l.oms v. Rutz, 138 U. S. 226, 11 1.34 U. S. 178, 10 Sup. Ct. Rep. 518; Hagan v. Campbell, 8 Port. (Ala.) 9, 33 Am. Dec. 267 ; Warren v. Chambers, 25 Ark. 120, 91 Am. Dec. 538, 4 Am. Rep. 23 ; Lovingston v. St. Clair, 64 111. 56, 16 Am. Rep. 516; Butternuth v. Bridge Co. 123 111. 535, 17 N. E. Rep. 439 ; Steele v. Sanchez, 72 Iowa, 65, 33 N. W. Rep. 366; Kraut v. Crawford, 18 Iowa, 549, 87 Am. Dec. 414; Hopkins Academy v. Dickinson, 9 Cu.sh. 544 ; Primm v. Walker, 38 Mo. 94, 98 ; Mincke V. Skinner, 44 Mo. 92 ; Lammers v. Nis- sen, 4 Neb. 245 ; Gill v. Lydick, 40 Neb. 508, 59 N. W. Rep. 104 ; Murry ;•. Ser- mon, 1 Hawks (N. C), 56 ; Wilhelm v. 402 Sup. Ct. Rep. 337 ; Nebraska y. Iowa, 143 U. S. 3.59, 12 Sup. Ct. Rep. 396; Lynch V. Allen, 4 Dev. & B. 62 ; Hopkins Acad- emy V. Dickinson, 9 Cush. 544 ; Holbrook V. Moore, 4 Neb. 437 ; Henning v. Ben- nett, 63 Hun, 592, 18 N. Y. S. 645 ; Bv.;- tenuth V. St. Louis Bridge Co. 123 111. 535; Degman v. Elliott (Ky.), 8 S. W. Rep. 10. * Miller v. Mann, 55 Vt. 475 ; Bran- ham V. Turnpike Co. 1 Lea, 704 ; Walker V. Board of Works, 16 Ohio, 540; Wat- son V. Peters, 26 Mich. 508. So in case of a navigable river, Missouri v. Kentucky, 11 Wall. 395. « Stolp V. Hoyt, 44 111. 219. BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§ 486. ually forms in tlie bed of a river wholly one side of the thread of the stream, it is the property of the riparian owner on that side ; ^ but if the island is so situated that it is partly on one side and partly on the other of the thread of the river, it belongs in sev- eralty to the propi-ietors on each side, the division line being the thread of the old river before the formation of the island.^ So, of course, if a point of land on one side is cut off, making an island, this belongs to the original owner. If the old bed of the river, being gradually deserted by the current, fills up and new land is formed, this belongs to the ripa- rian proprietors on each side, the division line being the thread of the old river.3 But if the bed of the river, as it existed at the time of the grant, cannot be found or traced, the courses and dis- tances of a survey giving the meander line of the river may be resorted to.'* The right of the riparian proprietor to alluvion, or accretions to his land through the gradual action of the water, is everywhere admitted. The rule api)lies equally to lands bounding on tide- waters or on fresh waters. It applies to the king or the state equally as to private persons ; and it is independent of the law governing the title in the soil covered by the water.^ 486. If there are two or more channels, the middle line of the channel having the greater depth of water, and being the one generally used for the purposes of navigation, is regarded as the thread of the stream, though the greater quantity of water may flow in the other channel.^ If there be a main channel through 1 Jones V. Soulard, 24 How. 41. * Martin v. Cooper, 87 Cal. 97, 25 Pac. 2 St. Louis V. Kiitz, 1.38 U. S. 226, 11 Rep. 262. Sup. Ct. Kep. 3.37; Ingraham y. Wilkin- '^ Sliively v. BowlUy. 1.52 U. S. 1, 14 son, 4 Pick. 268, 16 Am. Dec. 342 ; Deer- Sup. Ct. Rej). 548, per Gray, J., citing field V. Arms, 17 Pick. 41, 28 Am. Dec. Lord Hale in Harg. Law Tracts, pp. 5, 276; McCullough v. Wall, 4 Rich. 68, 14,28; Rex y. Yarborough in the King's 53 Am. Dec. 715 ; Gerrish v. Ciougli, 48 Bench, 3 Barn, & C. 91, and 4 Dowl. & R. j;f jj. 9. 790, and in the House of Lords, 1 Dow. & 3 Hopkins Academy v. Dickinson, 9 C. 178,2 Bligh, N. S. 147, and 5 Ring. Gush. 544; Warren t-. Chambers, 25 Ark. 163; Doe v. East India Co. 10 Moore 120, 91 Am. Dec. 538, 4 Am. Rep. 23 ; P. C. 140 ; Foster v. Wright, 4 C. P. Div. St. Louis V. Mo. P. Ry. Co. 114 Mo. 13, 438; Handly v. Anthony, 5 Wheat. 374, 21 S. W. Rep. 202 ; Buse v. Ru.s.>■. Xance, 3 Head, 049; Holbcrt v. Edciis, 5 Lea, 204, 209, 40 Am. Rep. 26; Ilolden r. Chandler, 61 Vt. 291,18 Atl. Rep. 310; Chandos v. Mack, 77 Wis. 573, 46 N. W. Rep. 803; Greene?;. Nun nemacher, 36 Wis. .50 ; Allen r. Weber, 80 Wi.s. 531, 50 N. W. Rep. 514. In thi.< last case Ortoii, J., cites the following cases in which the line is limited by the description, and no jiart of the bed of the stream is conveyed : " Thence northeast- erly up the west bank of Pine Creek." Mur)5hy v. Copeland, 51 Iowa, 515, 58 Iowa, 409, 43 Am. Hep. 118, 1 N. VV. Rep. 691, 10 N. W. Rep. 786. " To and along the bank." Halsey v. McCormick, 13 N. Y. 296 ; People v. Supervisors, 125 111. 9, 17 N. E. Rep. 147. "As far as high-water mark " is the outer line of the overflow of a mill-pond so described in the conveyance. Jones v. Parker, 99 N. C. 18, 5 S. E. Rep. 383. "To the Gene- see River, thence northwardly along tlie shore of said river." Starr v. Child, 20 Wend. 149. In Murphy v. Copeland, 51 Iowa, 515, 1 N. W. Rep. 691, it was held that " along the bank " was cqiiivalent to " along low-water mark ; " and the same in Halsey v. McCormick, 13 N. Y. 296. In Cook r. McClure, 58 N. Y. 437, the language is: "To a stake near the hi;:h- watcr mark of the pond, running thence along the high-water mark of said pond, to," etc. ; and it was held that the line was limited at high-watermark, and would not extend even to low-water mark. This case is exactly in point. In Bradford V. Cressey, 45 Me. 9, the language is: " Thence east nntil it strikes the creek on which the mill stands ; thence southwest- crlv on the west bank of said creek;" and it was held that "the grantee was restricted to the bank of the creek." 3 Nichols r. Ilowland, 52 Hun. 287, 5 N. Y. Supp. 252; Kiiigsland v. Chitten- den, 6 Lans. 15. 405 §§ 489, 490.] DESCRIPTION AND HOUNDARIKS. tlie meiuiiiii;- is not clear, resort is hail to lailes of construction. "■If the intention is still doubtful, the deed may be examined in the li'dit of the cireunistHUces attending its execution, such as the actual condition, situation, and occupation of the property o-ranted. But the intent, when apparent and not repugnant to any, rule of law, will control teclmical terms, for the intent, and not the words, is tlie essence of every agreement. In the exposi- tion of deeds the construction must be upon the view and com- parison of the whole instrument." ^ 489. As bearing upon the construction of the deed in this respect, other instruments may be considered, if they were executed between the same parties at the same time and respect- ing the same subject-matter.^ But such instruments are not to be considered for this purpose unless they are between the same par- ties, or, if they are between different parties, unless they relate to the same transaction and are in effect parts of one transaction.^ Thus, if one advertises and sells land bounded on a stream, and on the same day, and as part of the same sale, sells the bed of the stream to another person, the deeds being executed the same day and containing the same recitals, the intention thus shown to separate the ownership of the bed of the stream from the ownership of the lot overcomes the presumption that the deed of the lot carries the title to the bed of the stream to its centre."* 490. When the starting-point is a monument on the bank of a river, and the line runs thence along the river or by it, or on it, the boundary is still by the thread of the stream, unless, by other terms used in the deed, it appears that it was intended to limit the boundary to the bank of the stream.^ The same rule 1 liaight V. Hamor, 83 Me. 453, 22 Atl. ^ Cornell v. Todd, 2 Deiiio, 130 ; Put- Eep. 369, per Wliitchoiise, J.; Bradford nam v. Stewart, 97 N. Y. 411; Hexford V. Cressey, 45 Me. 9 ; Erskine v. Moulton, v. Marquis, 7 Lans. 249. €6 Me. 276 ; Salisbury v. Andrews, 19 ■* Denver v. Pearce (Colo.), 22 Pac. Rep. Pick. 250 ; Jackson v. Myers, 3 Johns. 388, 774. 3 Am. Dec. 504, per Kent, C. J. ; Buck ^ St. Clair Co. v. Lovins-ston, 23 Wall. V. Sfpiiers, 22 Vt. 484; Dunham v. Wil- 46; Railroad Co. v. Schurmeir, 7 Wall, liams. 37 N. Y. 251; Chicajro y. Rumsey, 272; Whitehurst u. McDonald, 52 Fed. 87 III. .348; Stolp v. Hoyt, 44 III. 219; Rep. 633,3 C. C. A. 214, 8 U. S. App. Rockwell V. Baldwin, 53 111. 19; .Mott v. 164, affirming 47 Fed. Rep. 757; Gou- Mott, 68 N. Y. 240. verneur v. Nat. Ice Co. 134 N. Y. 2 HaiRht y. Ilamor, 83 Me. 453, 22 Atl. 355, 31 N. E. Rep. 865, reversing 11 Eep. 3C9, per Waterhouse, J. ; Cloves v. N. Y. Supp. 87 ; Luce v. Carley, 24 Sweetser, 4 Cush. 403 ; King v. King, 7 Wend. 451, 35 Am. Dec. 637 ; People v. Mass. 496. Jones, 112 N. Y. 597, 20 N. E. Rep. 577 ; 406 BOUNDARY BY THE SEA, KIVERS, AND LAKES. [§ 490. applies when a boundary line runs to a terminus on the bank of a river, and thence by or along the river to another terniiiius. "• It is very difficult," says Cowan, J., " for the human mind to resist that the parties never mean to leave a narrow strijj between the land and the river merely because some stake or tree, or even all the stakes and trees of the line, stand at a slight distance from the river. The expression of an intent to run the line along the stream reaches a distinct natural monument which overcomes the others. They are rather intended to indicate or point down to the termini of the water line."^ Thus, where the starting-point was a hickory-tree standing on the bank of the Ohio River, thence after several courses to a corner iron wood-tree on the bank of the river, and thence by the river to the starting-point, the boundary was held to be by the river.^ A boundary line run- ning from a post on the north bank of a creek, "thence down the same and along the seveial meanders thereof to the place of beo-innins," which was also on the bank, includes the bed of the stream to the centre.^ A survey running to a point on a river, and "thence down said river, and binding thereon," to another point, includes a sand-bar on the same side of the river, between the two points.^ While, as already noticed, in many States a boundary starting Newton V. Eddv, 23 Vt. 319; Robinson in, or on a stream or its bank, and there V. White, 42 Me. 209 ; Low v. Tibbetts, is an intermediate Hue extemiing from 72 Me. 92, 39 Am. Rep. 303 ; Lowell v. one such corner to the other, the stream Rohiusou, 16 Me. 357, 33 Am. Dec. 671 ; is the boundary, unless there is something Lunt V. Holland, 14 Mass. 149; Cold which excludes the operation of this rule Spring Iron Works v. Tolland, 9 Cush. by showing the intention of the parties 492 ; Woodman v. Spencer, 54 N. H. 507 ; was otherwise." St. Clair County v. Lov- Rix V. Johnson, 5 N. H. 520, 22 Am. Dec. ingstou, 23 Wall. 46, 64; Railroad Co. v. 472 ; Kent v. Taylor, 64 N. H. 489, 13 Atl. Schurmeir, 7 Wall. 272. Rep. 419; Wood v. Appal, 63 Pa. St. 210; i Starr v. Child, 20 Wend. 149, 156, 5 Grant v. White, 63 Pa. St. 271 ; Coovert Denio. 599; Child v. Starr, 4 Hill, 369; r. O'Connor, 8 Watts, 470; Klincensmith Halsey v. McCormick, 13 N. Y. 296; V. Ground, 5 Watts, 458; McCuUock v. Luce v. Carley, 24 Wend. 451, 35 Am. Aten, 2 Ohio, 307 ; Turner v. Parker, 14 Dec. 637 ; Ex parte Jennings, 6 Cow. 518, Oreg. 340; Hayes v. Bowman, 1 Raud. 16 Am. Dec. 447; Mott v. Mott, 68 N. Y. 417; Mead y. Haynes, 3 Hand. 33; Brown 246; Gouverneur v. Nat. Ice Co. 134 N. Oil Co. c. Caldwell, 35 W. Va. 95, 13 8. Y- 355, 31 N. K. Rep. 865. E. Hep. 42; Camden v. Creel, 4 W. Va. ^ Wood v. Appal, 63 Pa. St. 210. 365. " It may be considered," say the ^ Seneca Nation v. Knight, 23 N. Y. Supreme Court, "a canon in American 498. jurisprudence that where tlie calls in a ^ Asher Lumber Co. v. Lunsford (Ky.), conveyance of land are for two corners at, 30 S. W. Hep. 968. 407 §-i«'l-] DESGKIPTIOX AND BOUXDAKIES. at :i nioiuiment on llie bank ot" a stream, and tliencn running- alouii llie stream, includes the stream to tlie middle of the chau- iiel, yet there aie decisions to the effect that in such case the stream is wliolly or partly excluded.' 491. Even if the monument is some distance from the river, the boundai-y thence by the river will be by the thread of the stream, if there is nothing fui'tlu'r in the deed to show au intention to limit the boundary to tlie bank.^ A corner tree or other moiuuueut is not always to be iuid near a river, and there- foi-e one may be taken at some distance from it ; but if the course is by the river, this is regarded as the boundary.'^ The stream is a natural boundary, and controls a call for a monument on the bank; audit is not to be presumed that the grantor retains a strip of land between the line indicated by the monuments and the line of low water.^ But this presumption does not apply when the boundary is a mill-race owned and retained by the grantor ; for in such case there is an obvious reason why the grantor should wish to retain such narrow strip between the top of the bank of the mill-race and the water-edge of the mill-race at low-water mark.^ Where land is described as lying on a river named, the meander line of the river as surveyed does not constitute the boundary of the land, but the grantee is a riparian owner, and has title to the land lying between such meander line and the river, or to the thread of the river in case the boundary line is governed by the common-law rule.*^ 1 Dunlap V. Stetson, 4 Mason, 349 ; Bradford v. Cressey, 45 Me. 9 ; Lamb v. Rickets, 11 Ohio, 311 ; Murphy v. Cope- land, .51 Iowa, 515, 1 N. W. Hep. 691; Holbert i'. P^dens, 5 Lea, 204, 40 Am. Rep. 26 ; Babcock v. Utter, 1 Abb. App. Dec. 27 ; Fleniing v. Kenney, 4 J. J. Marsh. 155. 2 Grant v. White, 63 Ta. St. 271, where the corner tree was fourteen perches from the river; Cansler v. Hender.son, 64 X. C. 469. ^ Klingensmith r. (rroiiinl, .') Wntts, 4.'')8. * Carter v. Railway Co. 26 W. Va. 644 ; Grant v. White, 63 Pa. St. 271. = Carter v. Railway Co. 26 W. Va. 644 ; Martin v. Nance, 3 Head, 649. 408 6 Hardin v. Jordan, 140 U. S. 371, II Sup. Ct. Rep. 808, 16 Fed. Rep. 823; Railroad Co. v. Schurmeir, 7 Wall. 272; Ladd V. Osborne, 79 Iowa, 93, 44 N. W. Rep. 235 ; Kraut v. Crawford, 18 Iowa, .549, 87 Am. Dec. 414; Houck v. Yates 82 111. 179; Sphung r. Moore, 120 In■. Ruddiman. 10 Mich. 125; Palmer v. Dold, 64 Midi. 474, 31 N. W. Rej). 209. Minnesota : Schurmeir v. Rail- rond Co. 10 Minn. 82, 88 Am. Dec. 59; St. Paul, &c. H. Co. V. Fir>t Divi.sion, &c. R. Co. 26 Minn. 31, 1 N. W. Rep. .580, 49 N. W. Rej). 303 ; Everson v. Waseca, 44 :\Iinn. 247, 46 N. W. Rep. 405 ; Lam- prey V. State, 52 Minn. 181, 53 N. W. Rep. 1139. Oregon: AYeiss v. Oregon Iron Co. 13 Oreg. 496, 11 Pac. Rep. 255 ; Minto V. Delauey, 7 Oreg. 337 ; Turner V. Parker, 14 Oreg. 340, 12 Pac. Rep. 495. Utah : Kuudsen v. Otnanson (Utah), 37 Pac. Rep. 250. Wisconsin : Lally v. Ross- man, 82 Wis. 147, 51 N. W. Rep. 1132; Whitney v. Lumber Co. 78 Wis. 240, 249, 47 N. W. Rep. 425; Northern Pine Land Co. V. Bigelow (Wis.), 54 N. W. Rep. 496 ; Boorman v. Sunnuchs, 42 Wis. 233 ; Me- uasha Ware Co. v. Lawson, 70 Wis. 600, 36 N. W. Rep. 412. See, also, decision of Secretary of Inte- rior in Hemphill's Case, in February, 1888, 6 Dec. Dep. Int. 555. Otherwise in Nebraska : Harrison r. Stipes, 34 Neb. 431, 51 N. W. Rep. 976 ; Lammers v. Nissen, 4 Neb. 245 ; Bissell V. Fletcher, 19 Neb. 725, 28 N. W. Rep. 303. ■-' R.-iilroad Co. r. Schurmeir, 7 Wall. 272, 286, per Clifford, .1 . •i Rayburn i-. Winant, 16 Oreg. 318, 18 Pac. Rep. 588 ; People v. Henderson, 40 Cal. 32. 409 §§ 4'.>o, 494.] DESCRIPTION AND BOUNDARIES. i^oiu-ral treiul of the water line.^ Measurement in a straight line is si>inetinies adopti^l in the case of streams not navigaUle.'-^ 493. The fact that the quantity of land called for in a deed is satisfied without including the bed of a stream wliicli c(>n- stitutes the boundary does not limit the title to the bank of the stream.'^ In the purchase of land bounded upon a river at a stipulated [U'ice per acre, it would seem that the purchaser would be required to pay for land to the line of ordinary low water only, thouo-h his title might extend to the thread of the stream.'* On the other hand, if the quantity of land and n::easurements require the inclusion of the shore, or land covered by the water between high and low water mark, this affords a reason for ex- tending a, boundary to jneet this requirement. Thus, in a deed of land on Long Island Sound, the first course, starting from a point accurately fixed, ran a certain distance to a point on the Sound, thence along the shore to the intersection of the centre line of a certain street, and thence by said street a certain distance to the point of beginning. It appeared by a survey that the first and last courses, if run in obedience to the distance given, would ex- tend to low-water mark, and that, to give the quantity the deed purported to convey, the land to low- water mark must be included. It was accordingly held that the boundiiry line was along the low- water mark.^ 494. A boundary by a ditch or canal ordinarily extends the grant to the centre line of the ditch, if the grantor's title extends SO" far and not farther.*" If the ditch is wholly upon the grantor's land, his deed bounding his land upon the ditch would caia-y the title to the whole of the ditch, because it would not be prvsumed that he would retain a strip of land occupied by half of the ditch, ^ Northern Pine Land Co. v. Bigeiow veys, wlicn ni;ule, to so describe the iip- (Wi.s.), .54 N. W. Rejj. 496. liuids as to compute the mimher of acres - Hicks V. Coleman, 25 Cal. 122, 85 tliey contain." Am. Dec. 103 ; IVople v. Heudersou, 40 * Ilolbcrt r. Edeus, 5 Lea, 204, 40 Am. Cal. 29, per Temple, J. I^ep. 20. » D\v\er V. Rich, Ir. R. 4 C. L. 424; ^ Oakes v. De Laucey, \S3 N. Y. 227, Kent V. Taylor, 64 X. H. 489, 1.3 Atl. Rep. 14 X. Y. Supp. 294. 419; Gouverneur c. Xat. Ice. Co. I'i4 '' (lOodyear r. Shanahau, 43 Conn. 204 ; N.Y. 355,368, 31 .N. E. Rep. 865. In the Warner v. Soiuhworlh, 6 Conn. 471; last case Bradley, J., s.tid : " It is a mat- A<;a\vam Canal Co. v. Edward-, 36 Conn, ter of common knowled<,'e in respect to 476; Bi-liop i-. Seelev, 18 Conn. 389 j lands bordering on streams and other Cansler/-. Hen. lerson, 64 N. C. 469 ; Dunk- bodies of water, that it is usual in snr- ]ce v. Wi\um R. Co. 24 N. H. 489. 410 BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§§ 495, 496. which would be useless without the land adjoining. But this rule does not apply in case of a boundary upon an artificial wa- tercourse, like a mill-race, flume, or ditch, in which the grantor still has an interest as owner of a mill, or of other land for the beneficial use of which such watercourse is necessary, or in case the flume or ditch is owned by another.^ 495. A boundary by an artificial pond, formed by erecting a dam across a stream, passes the land to the thread of the stream.^ It seems not to be material how long a time the pond has ex- isted ; for in one case the rule was applied to a mill-pond which bad been in existence more than two hundred years.-^ A boun- dary line given as commencing at " a stake near the high-water mark " of a pond, thence running " along the high-water mark," is fixed at the high-water mark, and that mark is a permanent one, and does not follow the changes in the high-water mark of the poiid.^ Parol evidence is admissible to show that it was in- tended to limit the grant to the margin of the water as it over- flowed the land in the spring.^ 496. The common-law rule is that a deed of land border- ing on a small lake not navigable is presumed to convey title to the centre of the lake, unless it appears that there was an intention otherwise ; for the riparian owner has title to the land under such lake or pond extending to the centre.^ The rule 1 Carter v. Railway Co. 26 W. Va. 644 ; 18 ; Lynch v. Allen, 4 Dev. & Bat. 62, 92, Uoffv. Tobey, 66 Barb. 347; Morgan v. 32 Am. Dec. 671. Bass, 14 Fed. Rep. 454. ^ Lowell v. Robinson, 16 Me. 357, 33 - Mill River Woolen Manuf. Co. v. Am. Dec. 671. Smith, 34 Conn. 462; Phinney i'. Watts, « Bristow v. Cormican, 3 App. Cas. -9 Gray, 269, 69 Am. Dec. 288; Paine v. 641. This case related to riparian rights Woods, 108 Mass. 160; West Roxbury v. in Lough Neagh, a lake in the north of Sioddard, 7 Allen, 158; Mansur v. Blake, Ireland, about fifteen miles in length and 62 Me. 38 ; Lowell v. Robin.son, IG Me. ten miles in breadth, the longest iuhuid 357, 33 Am. Dec. 671 ; Robinson r. White, lake in the United Kingdom, and one of 42 Me. 209 ; State v. Gilmanton, 9 N. II. the largest in Europe. It was held that 461 ; Union Ry. & T. Co. c. Skinner, 9 the crown had no property in the land Mo. A])p 189; Wheeler v. Spinola, 54 under the lake, but that it belonged to N. Y. 377 ; Primm v. Raboteau, 56 Mo. the adjoining owners of the land on the 407; Holdcn v. Chandler, 61 Vt. 291, 18 borders of tlie lake. Hardin v. Jordan, Atl. Rep. 310; Church v. Stiles, 59 Vt. 140 U. S. 371, 11 Sup. Ct. Rep. 808, 838; 642, 10 Atl. Rep. 674. Forsythe v. Smale, 7 Biss. 201. Indiana: ■^ Mill liiver Woolen Manuf. Co. v. Ridgway v. Ludlow, 58 Ind. 248, holding Smith, 34 C'(jnn. 462. also that a prcscrijjtive right acquired by •• Cnok V. McClure, 58 N. Y. 437, 17 adver.se possession to land adjacent to such Am. Rep. 270 ; Jones v. Parker, 99 N. C. lake extended to the middle of it. Stoner 411 497.] DKSCini'TION AND BOUNDAHIKS. is otluMwiso in Massachusetts, because of the colonial law or ordi- iKuu'c ;uloi)ted in 1041, and amended in 1647, declaring great ponds, which were defined as those containing more than ten acres, to be public property, and since that time such ponds have not been subject to private ownership. ^ In New York, and other States having no similar statute, the land under small lakes and ponds is the subject of private ownership, and a boundary thereon, in a conveyance by the owner of the adjoining lands, passes his title to the centre line of such lake or pond. 497. The general rule of private cwnership of lakes ap- plies to natural lakes of considerable size,- such as a lake about seven miles long and half a mile wide,'^ or a lake three miles in length and one mile in width,* or a lake four or five miles long and eight hundred feet wide.^ In case government surveys have been extended over suuill lakes, just as though the whole was dry laud, and titles have been conveyed with reference to such surveys, the boundaries of lands under such surveys may be confined to the terms of the patents and deeds ."^ r. liice, 121 Ind. 51, 22 N. E. Rep. 968. Michigan: Kice v. Rudiiiman, 10 Mich. 12.-); Ckite V. Fisher, 65 Mich. 48, 31 N. W. Rep. 614. Missouri: Kirkpatrick r. Yates Ice Co. 45 Mo. App. 3.35. New Jersey : Cobb v. Davenport, 32 N. J. L. 369, 33 N. J. L. 223, 97 Am. Dec. 718; Ka- nouse V. Slockbovver, 48 N. J. Eq. 42, 21 Atl. Rep. 197 ; Fowler v. Vreeland, 44 N. J. Eq. 268, 14 Atl. Rep. 116. New York : Gouverneur v. National Ice Co. 134 N. Y. 355, 31 N. E. Rep. 865, reversinjr 11 N. Y. Supp. 87; Smith v. Rocliestcr, 92 N. Y. 463, 44 Atn. Rey). 393 ; Ledyard v. Ten Eyck, 36 Barb. 102. Ohio: Lemlieck V. Nve, 47 Ohio St. 326, 24 N. K. Rep. 686. 1 West Koxbuiy V. Stoddard, 7 Allen, 158; Hittingcr ;■. Eame'!, 121 Mass. 539 ; Wa!ui>pa, &c. Co. i: Fall River, 154 Mass. 305, 28 N. E. Rep. 257. " When the col ony of Ma.ss;ichu.sctts, two hundred and fifty years ago, reserved to pnblic use her 'great ponds,' probably only fishing and fowling were in mind. But, as is said in one case (We.'-t Hoxhury v. Stoddard, 7 Allen, 158), ' with the growth of the com- 412 niunity and its progress in the arts, tiicse pnblic reservations, at first set apart with reference to certain sjiecial uses otdy, be- came capable of many others, which are within the desiju and intent of the origi- nal appropriation. The devotion to pub- lic use is sufficiently broad to include them all as they arise.' " Lamprey i\ State, 52 Minn. 181, 200, per Mitchell, J. 2 Lembeck r. Nye, 47 Ohio St. 336, 24 N. E. Rep. 686 ; Hogg v. Beerman, 41 Ohio St. 81. 3 Smith V. Rochester, 92 N. Y. 463. 44 Am. Rep. 393. In Lcdyanl v. Ten Eyck, 36 Barb. 102, it was held that land con- veyed by deed bounding it on Cazenovia Lake, which was five miles long and three fourtlis of a mile in width, extended to its centre. But the conclusion reached in that case may have been su])ported upon another ground. * Cobb y. Davenport, 32 N. J. L. 369, 33 N. J. L. 223, 97 Am. Dec. 718. ^ Kirkpatrick v. Yates Ice Co. 45 Mo. App. .335. 6 Kirkpatrick v. Yates Ice Co. 45 Mo. ApT). 3"i5. BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§§ 498-500. 498. The presumption of a boundary by the centre of a pond or lake may be excluded by any (lescriptioii which indi- cates an intention to limit the grant by the shore or edge of the lake. Thus, if the boundary is described to be '' at low-water mark," ^ (^r " meandering along tlie water's edge," ^ by the " mar- gin " of the lake,'^ " on the edge of the pond,"' •* a boundary by the centre of the lake is exckuled. The land covered by a lake or mill-pond which is the subject of private ownership may be conveyed separate and apart from the land surrounding the lake or pond ; as when such owner conveys a mill and mill privilege " embracing as far as high-water mark." ^ 499. The rule of ownership ad filum aquae is not applica- ble to the great fresh-water lakes which form the boundary between the United States and Canada, or to lakes which form the boundary between States, such as Lake Champlain, for ex- ample. These are regarded as inland seas, and the title of their beds is in the adjoining States, and not in the individual owners of the adjoining land. The matter of title to the beds of such lakes is wholly unprovided for by the common law of England.^ In this country the rule has been adopted that such lakes are not private property but public. There may be a reason for this exception to the rule, not depending upon the size of the lake as regards those lakes which form the natural boundaries between this country and a foreign nation, or those that form the bounda- ries between States, but the reason for the exception may also be founded upon the size and navigable character of such lakes.' 500. The State is the owner of the fee of all lands under the navigable waters of the great lakes, but in trust for the 1 Allen V. Weber, 80 Wis. 531, 50 N. Smith v. Kuchester, 92 N. Y. 463, 44 Am. W. Rep. 514. Rep. 393; People v. Jones, 112 N. Y. •■! Brophy v. Richeson (Ind.), 36 N. E. 597, 606, 20 N. K. Rep. 577. Rep. 424. " ' Chumplaiu & St. L. R. Co. y. Valen- 3 Lembcckr. Andrews, 47 Ohio St. 336; tine, 19 Baib. 484. This case had rela- Fowler v. Vreeland, 44 N. J. Hq. 268, 14 liou lo rights in Lake Champlain, a large Atl. Rep. 116. ntn livable lake about one hundred and * Ilolden y. Chandler, 61 Vt.291, 18 Atl. thirty miles in Icngih. and varyiii}>- from Rep. 310; Eddy ;•. St. Mars, 53 Vt. 462. about tifteen miles to less in width. State 5 Jones V. Parker, 99 N. C. 18, 5 S. E. v. Milk, 11 Biss. 197 ; Wheekry. Spinola, Rep. 383. 54 N. V. 377 ; Canal Commissioners r. '■> Hardin v. Jordan, 140 U. S. 371, 11 People, 5 Weud. 423; Fletcher v. Phelps, Sup. Ct. Rep 808, 838; Canal Commis- 28 Vt. 257; Hathorn y. Stinson, 10 Me. sioners v. People, 5 Wend. 423, 447 ; Canal 224, 238 ; Dillingham v. Smith, 30 Me. Appraisers v. People, 17 Wciiii. 571; 370. 413 § nOl.] DESCRIPTION AND BOUNDARIES. use of the public.^ " TJie title to such himls beiug in the State, * they are subject tt) state reguhition and control, under the condi- tion, however, of not interfering with the regulations which may- be made by Congress with regard to public navigation and com- merce, . . . stale control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce, and subjecting the lands to the neces- sities and uses of commerce.' " ^ To what extent a State may exercise its prerogative over the land covered by the waters of these lakes depends upon the law of each State, just as it does in the case of the great navigable rivers. The States may, if they so determine, resign to the riparian proprietor rights which properly belong to them in their sovereign capacity.^ Where land bordering upon a large lake, such as the Winni- pesaukee or any navigable lake, is conveyed, the right of the purchaser to erect a wharf or building in the lake below low- water mark, as against everybody but the State, passes as an appurtenance to the land.'* 501. The boundary line upon a large natural lake or great pond is the low-^water line at which the water usually stands when free from disturbing causes.^ If the water be raised to an artificial height in the winter, but in summer is allowed to remain at its natural level, a boundary by the lake or pond conveys the land to the low-water mark of the lake or pond in its natural i Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. Eep. 110 ; IMcLen- nan v. Prentice, 8.5 AVi.s. 427, 3.5 N. W. Rep. 764 ; Diedrich v. Northwest. Ry. Co. 42 Wis. -248; Stevens Point Boom Co. v. Reilly, 44 Wis. 235 ; Winnipesaukee As.so. V. Gordon (N. H.), 29 Atl. Rep. 412 ; Con- cord Manuf. Co. r. Robertson, 66 N. H. 1, 18, 25 Atl. Rep. 718. 2 Hardin v. Jordan, 140 U. S. 371, 382, 11 Sup. Ct. Rep. 808, 838. 3 Barney r. Keokuk, 94 U. S. 324 ; Hardin v. Jordan, 140 U. S. 371, 382, 11 Sup. Ct. Rep. 808, 838 ; Illinois Cent. R. Co. V. Illinois, 146 U. S. 387, 13 Sup. Ct. Rep. 110. * Winnipesaukee As.so. r. Gordon (N. H.), 29 Atl. Rep. 412. 5 Paine v. Woods, 108 Mass. 160; West Roxbury v. Stoddard, 7 Allen, 158; 414 Waterman v. Johnson, 13 Pick. 261 ; Sea- man V. Smith, 24 111. 521 ; Indinna v. Milk, 11 Biss. 197, 11 Fed. Rep. 389; Trustees v. Schroll, 120 111. 509, 2 N. E. Rep. 243, 60 Am. Rep. 575. The Su- preme Court of the United States, how- ever, in Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808, 838, review this case, and discard it as not correctly de- claring the commo!i Inv of the State; Wheeler v. Spinola, 54 N. Y. 377 ; Canal Commissioners v. The People, 5 Wend. 423, 447 ; Champlain & St. L. R. R. Co. V. Valentine, 19 Barb. N. Y. 484 ; Lincoln V. Davis, 53 Mich. 375, 19 N. W. Rep. 103, 51 Am. Rep. 116; Rice v. Ruddiman, 10 Mich. 125 ; Sloan v. Biemiller, 34 Ohio St. 492; Wood v. Kelley, 30 Me. 47; Bradley v. Rice, 13 Me. 198, 29 Am. Dec. 501 ; Stevens v. King, 76 Me. 197, 49 BOUNDARY BY THE SEA, RIVERS, AND LAKES. [§ 502. state, and iL is immaterial that the conveyance was executed in the winter, when the water was high.^ In case a natural pond has been permanently enlarged and raised by means of a dam at its outlet, a boundary upon the pond carries the title to the low- water mark of the pond in its enlarged state.^ Of course the general rule, that the boundary by a natural lake is a boundary by low-water mark, gives way to any clearly expressed intent to the contrary.*^ The grant of an island in a swamp or natural lake carries the title to low-water mark ; but if the swamp or lake is afterwards drained by artificial means, the grantee's title does not extend to and include the land laid bare by such drainage, but remains at the line of low water, as it was when the grant was made, and evidence to determine where such line was is admissible.* If there is a stream running through the swamp, a boundary by the swamp is by the middle of the stream.'^ A boundary b}' a slough or arm of a navigable river is by the middle of the slough.^ 502. A boundary by the shore of a lake conveys all the riparian rights of the grantor in the lake, in front of the land conveyed, and, as agauist the grantor, any land made by filling in the lake at the shore." It is never presumed that the grantor reserves to himself any proprietary rights in front of the land conveyed. The intention to do so must clearly appear from the conveyance ; and the mere fact that the boundary of the lot con- veyed is indicated by a line on the plat will not limit the grant to the lines on the plat, or operate to reserve to the grantor pro- prietary rights in front of the lot.^ Am. Rep. 609; Delaplaine v. Chicago & Dec. 501 ; Hathorne v. Stinson, 12 Me. N. W. Ry. Co. 42 Wis. 214, 24 Am. Hep. 183, 28 Am. Dec. 167. 386 ; Boorman v. Sunnuch.s, 42 Wis. 233 ; ^ -Wood v. Kelley, 30 Me. 47. State V. Gilmsmton, 9 N. H.461 ; Fletcher ^ people v. Jones, 112 N. Y. .597, 20 r. Phelps, 28 Vt. 257 ; .Jakeway v. Barrett, N. E. Rep. 577 ; Goiiverncur v. National 38 Vt. 316; Austin v. Kutlnnd R. Co. Ice Co. r-,7 Huu, 474, 11 N. Y. Supp. 87. 45Vt. 215; Kanouse v. Slockbower, 48 ■» Lewis r. Roper Lumber Co. 109 N. N. ,J. Eq. 42, 21 Atl. Rep. 197; Wayznta C. 19, 18 S. E. Rep. 52, 13 S. E. Rep. V. Great Northern Ry. Co. 50 :Minn. 438, 701. 52 N. W. Rep. 913; Castle v. Elder ^ Felder r. Bonnett, 2 McMuU (S. C), (Minn.), 59 N. W. Rep. 197. 44. 37 Am. Dec. 545. 1 Paine «. Woods, 108 Mass. 100; West ''' Fuller r. Dauphin, 124 111. .542, 16 Roxbury v. Stoddard, 7 Allen, 158; Wa- N. E. Rep. 917. terman v. .Johnson, 13 Pick. 261 ; Wood ^ Castle v. Ehler (Minn.), 59 N. W. V. Kelley, 30 Me. 47, practically overrul- Rep. 197. ing Bradley v. Rice, 13 Me. 198, 29 Am. » Gilbert v. Emerson, 55 Minn. 254, 56 415 ■)0±] DESOiaPTlON AND BOUNDARIES. A Street, one side of which is by a luivigable hike or river, extenils to Unv-water mark, and the dedication of it to public use is held to have been intended to enable the pubhc to get to the water for the better enjoyment of the public right of navigation.^ A purchaser of a lot fronting on such street acquires the fee, subject to the public easement, to the entire street and shore to low-water mark, including all riparian rights.^ N. W. Rep. 818, citing Watson v. Peters, 26 Mich. 508. 1 Wiuzata V. Great Northern Ry. Co. 50 Minn. 438, 52 N. W. Rep. 913, per Gil- fillan, C. J. The court say : " We know of no rnle for determining the extent of a grant or dedication of land to ])ublic use, where a navigable lake or river i.s adopted as one of the boundaries, other tlian that applied in the case of a private grant. 416 Where, in a private grant, the land is bounded only by navigable water, the grantee takes to the low-water mark." See, however, Banks v. Ogden, 2 Wall. 57 ; Lotz V. Reading Iron Co. 10 Pa. Co. Ct. 497. 2 Wait V. May, 48 Minn. 453, 51 N. W. Rep. 471. See, however, Codman u. Winslow, 10 Mass. 146. CHAPTER XIX. EXCEPTIONS AND RESERVATIONS. I. How distinguished, §§ 503-515. II. General requisites and rules of con- struction, 516-535. III. Of particular exceptions and reser- vations, 536-547. IV. Whether a reservation is personal or appurtenant to the land, 548-560, I. Hoiv Distinguished. 503. In general. — An exception in a deed withholds from its operation some part or parcel of the thing, which, but for the exception, would pass by the general description to the grantee. A reservation, on the other hand, is the creation of some new right issuing out of the thing granted, and which did not exist before as an independent right, in behalf of the grantor and not of a stranger. 1 It is often difficult to distinguish between an 1 Lord Coke (Coke's Litt. 47a) says: "Note a diversity between an exception (which is ever of part of the thiiif; granted and of a thing in esse), for which exreptis, salvo, prater, and the like, be apt words, and a reservation, which is always of a thing not in esse, but newly created, or re- served out of the land or tenement de- mised." Sheppard (Touch, p. 80) says : " A re.servation is a clause of a deed whereby the feoffor, donor, lessor, grantor, etc., doth reserve some new thing to him- self out of that which he granted before." And again : " This doth differ from an ex- cef)tion, which is ever of part of the thing granted, and of a thing in esse at the time : but this is of a thing newly created, or reserved out of a thing demised, that was not in esse before ; so that this doth always reserve that whiith was not before, or abridge the tenure, i. e. ' tenor,' of that which was before." And again : " It must be of some other thing issuing or coming out of the thing granted, and nor a iiart VOL. I. of the thing itself, nor of something issu- ing out of another thing." See, also, Douglas v. Lock, 4 Nev. & M. 807, 824 ; Cardigan v. Armitage, 2 B. & C. 197; Brown v. Cranberry Iron, &c. •Co. 59 Fed. Rep. 434, 440. Connecticut : Marshall v. Trumbull, 28 Conn. 183, 73 Am. Dec. 667. Georgia : McAfee v. Ar- line, 83 Ga. 645, 10 S. E. Rep. 441. Hli- noia: Gould v. Howe, 131 111. 490, 496, 23 N. E. Rep. 602. Kentucky : Brown V. Anderson, 88 Ky. 577, 11 S. W. Rep. 607. Maine : Winthrop v. Fairbanks, 41 Me. 307 ; State v. Wilson, 42 Me. 9 ; Gar- land V. Ilodsdon, 46 Me. 511 ; Engel v. Ayer, 85 Me. 448, 27 Atl. Rep. 352. Mary- land : Herbert i;. Pue, 72 Md. 307,311, 20 Atl. Rep. 182; Schaidt v. Blaul, 66 Md. 141, 6 Atl. Rep. 669. Massachu- setts: Wood V.Boyd, 145 Mass. 176, 13 N. K. Rpp. 476 ; Murphy v. Lee, 144 Mass. 371, 11 N. E. Rep. 5.50; Ashcroft v. East- ern Railroad, 126 Mass. 196, .30 Am. Rep. 672 ; Perkins y. Stockwell, 131 Mass. 529 ; 417 i03.] KXCKPTIONS AND KESKRVATIONS. exd'ption and a reservation in a det'd, and the words " reserv- ing-"' and '' exceptini;- "' are not conclusive in determining which is intended. Tlie I'hai'acter and effect of tiie provision itself, in which such words occur, must determine what is intended.^ If tlie intent of the deed is to vest in the grantor some new right or interest which ilid not before exist in him, it is a resei'vation ; but if it was the plain purpose of the parties not to reserve a new right which should vest in the grantor, but to recognize and except from the grant an existing right which would otherwise pass to the grantee, it is the purpose of the parties to create an exception, whatever may be the language used.^ Stockwell V. Couillard, 129 Mass. 2.31 ; v. Howe, 131 111. 490, 23 N. E. Rep. 602. Stoikbridj^e Iron Co. v. Hudson Iron Co. A railroad company having platted a town, 107 Mass. 290. Michigan: Martin v. sold a parcel " reserving streets and alleys Cook (Mich.), 60 N. W. Rep. 679. Min- according to recorded plat of the town," nesota : Elliot v. Small, 35 Minn. 396, 29 and it was held the deed passed the fee in X. W. Rep. 158, 59 Am. Rep. 329. Mis- such streets when such fee was at the time sissippi : McAllister r. Honea (Miss.), 14 So. Hep. 264. New York : Craig v. Wells, 11 N. Y. 315; Ives v. Van Auken, 34 Barb. 566 ; Starr ;•. Child, 5 Denio, 599 ; Blackmau i\ Striker, 142 N. Y. 555, 37 N. E. Rep. 484, 29 Abb. N. C. 467, 21 held by the grantor subject to the ease- ment of the public therein. Scholfield, J., delivering judgment, said: "If here there had been no public easement in the streets and alleys, and the company had desired to retain for its servants and em- N. Y. Supp. 563 ; Mitchell v. Thorne, 134 ployees a private way across the land con- N. Y. 536, 32 N. E. Rep. 10; Langdon r. Mayor, 6 Abb. N. C. 314. North Carolina : Wauy:h v. Richardson, 8 Ired. 470. Penn- sylvania : Whitaker v. Brown, 46 Pa. St. 197. Rhode Island : In re Young, 11 R. I. veyed, it would have been a reservation; it would have been the creation of a new right, issuing out of the thing granted, in behalf of the grantor. But the streets and alleys were already in existence. The 636. Washington : Biles v. Tacoma, &c. municipality had an easement in them for R. Co. 5 Wash. 509,32 Rac. Rep. 211. the public. The land occupied by them Wisconsin : Fischer v. Laack, 76 Wis. was included by the terms of the deed in 313, 45 N. W. Rep. 104; Rich v. Zeils- the general description of the property dorff, 22 Wis. 544, 99 Am. Dec. 81. conveyed, and hence, but for the provision ^ Shep. Touch. 80 ; Bowman v. Wal- withholding them from its operation, they then, 2 McLean, 376, 392; Ashcroft v. would have been included in the grant. Eastern R.Co. 126 Mass. 196, 30 Am. Rep. 672; Stockwell r. Couillard, 129 Mass. 231 ; Siockbridge Iron Co. v. Hudson Iron Co. 107 Mass. 290, 321 ; Perkins v. Stock- well, 131 Mass. 529, 530; Wluthrop v. Beach v. Miller, 51 111. 206, 2 Am. Rep. 290. The language of the deed could only be held to withhold the fee of the streets and alleys from its operation upon the hypothesis that, ' according to recorded Fairbanks, 41 Mo. 307 ; Bowen v. Conner, plat of town of Wenona,' the fee of the 6Cush. 132; Gould r. Howe, 131 111. 490, streets and alleys is vested in the raunici- 23 N. E. Rep. 602. 2 Wood I'. Boyd, 145 Mass. 176, 13 N. E. R','p. 476; Snoddy v. Bolen, 122 Mo. 479, 25 S. W. Rep. 932. This is illustrated in the case of Gould 418 pality, for that is the measure of what is withheld from the operation of the deed ; and therefore, since ' according to re- corded plat of town of Wenona' an ease- ment oiilv in tiie soil of the streets and HOW DISTINGUISHED. [§ 504. An exception operates to retain in the grantor some portion of his former estate, which is thus taken out of or excluded from the grant. Whatever is thus excepted remains in him as of his former title, because it is not granted. An exception retains the title in the grantor, though the purpose for which the exception is made be a future one. Thus, in a conveyance by a city, an exception of so much of the land as is required for streets is an exception in prcesenti of so mucli of the land as the city should afterwards require for such use.^ An exception is always of some part of the estate not granted at all. A reservation is always of something taken back out of that which is clearly granted. Reservations of right of way, of water, of light, or of any other right or profit to arise out of the thing granted, are instances of reservations properly so called, whatever name the parties may have given to such reservations.^ Any exception or reservation out of the conveyance is properly mentioned immediately after the description of the parcels.^ 604. A right of way reserved for the use of the grantor is usually a new thing, derived from the land conveyed. Tiie grantor before giving his deed had a right of way wherever he chose to exercise it ; but when he has conveyed the land, re- serving a right of way, this is a new thing separated from the grantee's interest in the land.* If, however, a particular way al- alleys is vested in the municipality for the thing granted, and not of some other use of the puhlic, that only is witliheld thinjr ; 3, it must be a part of the thing from the operation of the deed." only, and not of all, the greater part, or 1 Wood V. Boyd, 145 Mass. 176, 13 N. the effect, of the thing granted ; 4, it must E. Rep. 476 ; Ashcroft r. Railroad Co. be of such thing as is .severable from the 126 Mass. 196, 30 Am. Rep. 672 ; Cutler thing which is granted, and not of an in- V. Tufts, 3 Pick. 272, 277 ; Cocheco Manuf. separable iucidenf ; 5, it mu.st be such a Co. V. Whittier, 10 N. H. .30.5, 310; Mayor thing as he that doth accept may have v. Law, 6 N. Y. Supp. 628 ; Fisher v. Cid and doth properly belong to him ; 6, it Copper M. Co. 97 N. C. 95, 4 S. E. Rep. must be of a particular thing out of a 772; Waugh v. Richardson, 8 Ired. 470; general, and not of a particular thing out Brown ?;. "cranberry Iron Co. 59 Fed. of a particular thing, or of a part out Rep. 434, 440. of a certainty; 7, it must be certainly 2 State V. Wilson, 42 Me. 9; Gay r. described and set down." McAllister v. Walker, 36 Me 54, 58 Am. Dec. 734; Ilonea, 71 Miss. 256, 14 So. Rep. 264, cit- Kister v. Reeser, 98 Pa. St. 1,42 Am. ing Shcp. Touch. 77. Rep. 608 ; .Jones v. De Lassus, 84 Mo. « If placed after the covenants, an ex- 541 ception might be regarded as excepting " To a good exception these things from the covenants only. Knapp v. Wool- must concur: 1, the exception mu.st be verton, 47 Mich. 292, 1 1 N. W. Rep. 164. bv apt words ; 2, it mu.'^t be of part of the ■» Moffitt v. Ly tlf, 1 65 Pa. St. 1 73, 30 Atl. 419 § 505.] EXCEPTIONS AND RESERVATIONS. reiuly existing is reserved, the reservation may be construed as an exception, if from the deed itself, and the situation of the parties, such appears to have been the intention of the parties.' 'Jlius, where the grantor reserved to the pubHc the use of a way across the granted parcel, and it appeared that the way referred to was a way wliicli had long been l.iid out and used by the jDublic, it was regarded as the manifest intention of the parties to withhold from the operation of the conveyance the use and enjoyment by the public of such existing way, and to relieve the grantor from any liability under his covenants of warranty.^ 505. A reservation sometimes has the force of an excep- tion. It is so construed when it falls within the definition of an exception, and it appears to have been the intention of the parties that it should so operate.'^ Thus where a deed in fee was made, the giantor "saving and reserving, nevertheless, for his own use, the coal " contained in said parcel, it was held that the saving clause operated as an exception of the coal, and that, therefore, the entire and perpetual property in it remained in the grantor. The words of reservation must be construed as an exception, because the subject of the reservation was not some- thing newly created, but a thing corporate and in esse when the Rep. 922; Kister /•. Ueeser, 98 Pa. St. 1. In the latter case Mr Justice Tininkey, de- liveriuj? the opinion, said: " Where land is granted, and the right of way reserved, that right becomes a new thing derived from the land ; and although before the deed the grantor had the right of way over the land whenever he chose to exercise it, ;yet when he conveyed the land the res- nervation was the thing separated from the right of the grantee in the land. A reservation is the creation of a right or interest which had no j)rior existence as such in a thing or part of a thing granted. It is distinguished from an exception in that it is of a new right or interest. An exception is always of part of the thin{ !'. Wilson, 42 Me. 9 ; Moulton v. Traftou, 64 Me. 218, 223. See Gould r. Howe, 131 111. 490, 23 N. P:. Rep. 602. •^ State V. Wilson, 42 Me. 9. 3 Co. Litt. 143 ; Doe v. Lock, 4 Nev. & M. 807; Stockwell v. Couillard, 129 Mass. 231 ; Wood v. Boyd, 145 Ma.ss. 176, 13 N. E. Rep. 476 ; Kimball v. Withington, 141 Mass. 376, 6 N. E. Rep. 759 ; Dennis V. Wilson, 107 Mass. 591,593; Pettee ?;. Hawes, 13 Pick. 323 ; Bowen v. Conner, 6 Cush. 132; White v. New York & N. E. R. Co. 156 Mass. 181, 30 N. E. Rep. 612 ; Hurd v. Curtis, 7 Met. 94 ; Winthrop V. Fairbanks, 41 Me. 307 ; State v. Wil- son, 42 Me. 9; Smith v. Ladd, 41 Me. 314; Kerriek v. Marshall, 66 Me. 435; granted ; it is of the whole of the part Green Bay & Miss. Canal Co. r. Hewitt, excepted." Also Carlson /;. Duluth Short 66 Wis. 461, 29 N. W. Rep. 237; Case Line Ry. Co. 38 Minn. 505, 37 N. E. Rep. v. Ilaight, 3 Wend. 632 ; Snoddy v. Bolen, •341. 122 Mo. 479, 25 S. W. Rep. 932; Brown ' Bridger v. Pierson, 45 N. Y. 601; v. Rickard, 107 N. C. 639, 12 S. E. Rep. Chappell 17. New York, &c. R. Co. 62 570 ; Watkins v. Tucker, 84 Tex. 428, 19 Conn. 19.5, 204, 24 Atl. Rep. 997; State S. W. Rep. 570. 420 HOW DISTINGUISHED. [§ 506, grant was made. The reservation amounting to an exception, the grantor had the same dominion over the property that he would have had if he had made no deed of the hind; and the limitation " for his own use " does not restrict his absolute pro- prietorship.^ In a grant of land upon a river, a reservation of a riglit previously granted to another to maintain a dam is con- strued to be an exception, as this construction is necessary to carry out the manifest intention of the co.iveyance.^ The lan- guage used must be considered with reference to the subject-mat- ter and the circumstances of the particular case.^ " Whether, in a given case, the language shall be construed to ci'eate an excep- tion or reservation will depend upon the situation of the property and the surrounding circumstances, in the absence of a declara- tion in the deed by the parties of their intention as to the nature of a way." * 506. A reservation of an existing right may properly be construed, as an exception.^ A deed, after the description of the land by metes and bounds, contained this clause : " Reserv- ing to the owner of the estate and others adjoining ... a right of passageway over the within granted premises, as specified " in a former deed. This right of way had been created many years previously by the owner of the entire tract of which the premises in question then formed a part, who had also subsequently con- veyed the passageway, which was a defined and existing one, to a grantee of a part of the tract. It was lield that the clause in the deed was an exception and not a reservation.'' In like manner, where the owner of land had conveyed a part of it, with a riglit to maintain a dam on the rest, and afterwards conveyed to a third person the whole parcel, "reserving" all the rights of the 1 Whitaker v. Brown, 40 Pa. St. 197. l.'iG Muss. 181, 30 N. E. Kep. 012, per This case is cited and approved in Kister iMorlon, J., citing Denni.s v. Wilson, 107 V. Reeser, 98 Pa. St. 1, 42 Am. K'ep. 008, ]Mass. .591. where it is said: "These terms [' excep- ^ Murphy v. Lee, 144 Mass. 371, 11 N. tion ' and ' reservation '] arc often used in E. Hep. .5.'j0 ; Engel i'. Ayer, 85 Me. 448, the .same sens;',, the teclinical ili>tinction 27 Atl. Kep. 3.52 ; Winthrop y. P'airhanks, being disregarded. Though apt words of 41 Me. 307; State v. Wilson, 42 Me. 9 ; reservation be used, they will he con.strucd Wliitakcr v. Brown, 46 Pa. St. 197; as an exception if such was the design of Bri. ^ De P.'vster ;•. Michael, 6 N. Y. 467, Walker, 36 Me. 54, 58 Am. Dec. 734. 492, .57 Am. Dec. 47o ; Denuison v. Tay 2 Hampton v. Helms, 81 Mo. 631. lor, 15 Abb. N. C. 439. 428 GENERAL REQUISITES AND RULES OF CONSTRUCTION. [§ 518. conveyance, but did not acquire title to it till afterwards.^ A reservation of '•'all the damages sustained in consequence of the railroad crossing the lands conveyed " relates to damages already sustained, and not to those to be suffered after the making of the deed.2 But a grantor may reserve damages already awarded him for a right of way over the granted land, but not paid at the time of the conveyance.''^ 518. When land is conveyed by general terms, an excep- tion of some portion of it from the grant is valid.* Thus, if one conveys a block of land containing several lots, not naming them, but describing the whole as one parcel, he may except one or more of the lots. The exception in such case is regarded as limiting the general description in the grant, and is therefore not repugnant to it. This is certainly the rule where the exception appears in the description as part of the substance of the grant- ing clause.-^ One may convey a farm, excepting the land covered by wood or timber. One may convey land described by courses and distances, and except from the operation of the grant the marshy or swampy lands within the boundaries.^ One may con- vey a tract of land and except from it a smaller parcel described by metes and bounds.' When there is no express grant, a restric- tive clause is not considered contradictory or repugnant. Thus, if a grantor describes a tract of land without mentioning a stream included within its bounds, and then declares that it is the intention of the deed to convey to the grantee so much of the privilege of the water as shall be sufficient for the use of a fulling- mill, whenever there is sufficient therefor, the clause is not re- pugnant to the grant, but is a good reservation of tiie surplus water.s The fact that a grantor reserves the use of a certain part of the land for purposes specified affords a presumption that 1 Dennison v. Taylor, 15 Abb. N. C. * Grecnleaf v. Birth, 6 Pet. 302 ; Bab- 439. cock V. Latterner, 30 Minu. 417, 15 N. W. ■-: Dennison v. Taylor, 15 Abb. N. C. Rep. 080; Koenig:beim v. Miles, 67 Tex. 439. 113, 2 S. W. Rep. 81 ; Cravens v. White, 3 Richardson v. Palmer, 38 N. II. 212. 73 Tex. 577, 1 1 S. W. Rep. 543. * Sprnguc V. Snow, 4 Pick. 54; Stock- * Painter i'. Pasadena, &c. Co. 91 Cal. well ;;. Couillard, 129 Mass. 231 ; Cutler 74, 27 Pmc. Rep. 539. r. Tufts, 3 Pick. 272; Babcock i-. Latter- "> Watkins v. Tucker, 84 Tex. 428,19 ner, 30 Minn. 417, 15 N. W. Rep. fi89 ; S. W. Rep. 570; KoeniKheim v. Miles, Witt V. St. Paul & N. P. Ry. Co. 38 Minn. 67 Tex. 1 13, 121, 2 S. W. Hep. 81. 122, 35 N. W. Rep. 802; Howe v. Sad- » Sprague v. Snow, 4 Pick. 54. dler (Kv.), 25 S. W. Rep. 277. 429 §§ olO, 520.] EXCEPTIONS AND RESERVATIONS. the title to such restM-vod part passed with the other land to the iTanteo, and such presumption can be overcome only by very satisfactory and convincing evidence. ^ An exception out of the hind described by metes and bounds of a part covered by a certain h-ase is an exception of the fee of such part. If it had been intended to convey the fee of the whole parcel, this would naturally have been done by simply adding the words " subject to the lease named." '-^ 519. When the terms used in excepting a parcel out of a grant are too vague and uncertain to enable such parcel to be located, the exception will be ineffectual to exclude any portion of the territory from the defined tract.^ The language of a reservation nuist be as explicit as that of a grant. A provision in a deed that ''sixteen feet east of said house shall be kept open as far back as the south end of said house " cannot be con- strued to be a reservation of a right of way, for the clause does not express or import the idea of a reserved right of way.* But effect will be given to a reservation vague in its terms if the intention of it is apparent. Thus, in a conveyance of a lot bounded on tide-water, a reservation " of all and every privilege around said lot " was held to operate as a reservation of the right to build a wharf.^ Ambiguity in the description of land excepted does not, how- ever, make the conveyance itself void for uncertainty. The grantee and not the grantor has the benefit of the uncertainty.^ 520. A part excepted from a grant must be as clearly described as the parcel granted.' As regards the boundaries of an excepted part, the same rules should apply that apply to a granted parcel. The facts and circumstances existing at the time of the conveyance are to be considered, if the terms used in the deed are ambiguous.^ If a way appurtenant to a particular parcel of land belonging to the grantor is reserved, and the way 1 Small V. Wright, 74 Me. 428. Johns. 394 ; Jackson v. Hudson, 3 Johns. 2 Howe V. Saddler (Ky.), 2.5 S. W. Rep. 37.5. 277. ■^ Co. Litt. 142a; Cook v. Wesner, 1 8 Ditman v. Clybourn, 4 111. App. 542; Cin. Sup. Ct. 249; Darling (■. Crowell, 6 McCormick v. Monroe, 1 Jones, 13. N. H. 421 ; Grennan r. McGregor, 78 Cal. * Wilder r. Wheeldon, .56 Vt. 344. 258, 20 l*ac. Rep. 559; Tructt v. Adams, 5 Parker >■. Rogers, 8 Oreg. 183. 66 Cal. 218, 5 Pac. Rep. 96. 6 McAllister v. Honea, 71 Miss. 256, « See Bennett v. Caddell (Ky.), 20 S. 14 So. Rep. 264 ; Jackson v. Gardner, 8 VV. Reji. 274. 430 GENERAL REQUISITES AND RULES OF CONSTRUCTION. [§ 521. is not defined, the situation of tlie land and its natural features are elements in determining wLere the way shall be.^ In an ex- ception of " the bottom at the ford of the creek, which bottom is now under fence, and supposed to contain nine acres, more or less," the words " now under fence " should be considered as descriptive merely, and not as limiting the boundary ; and, though the fence was set back from the creek out of the reach of the water, the exception should include the land up to the creek, although there is more than an acre of land outside the fence.^ An exception out of a grant of " one acre in the southeast corner, together with the buildings thereon," possession of which was retained by the grantor, should be construed to be an excep- tion of one acre of land of such shape as to include the buildings, if a square acre in such corner would not include them.^ In a conveyance of a part of a section defined by a government survey, an exception of a certain number of acres on a desig- nated side of the land is to be ascertained by taking a strip of land of uniform width across that side of the land sufficient to include the quantity named.* 521. An exception is good if the means of determining the excepted part are pointed out. It is a sufficient description of an excepted parcel to designate it by the name by which it is generally known, just as a grant is sufficiently described by such a name.^ It is also a sufficient description of an excepted parcel to state that it is the same conveyed to the grantor by a person named, even if it appears from the records that the grantor made a mistake in reciting the given name of such person.*^ It is also a sufficient description to say that the resei'ved land is the same that the grantor has previously occupied for a certain purpose,- when the occupation of the hind for this purpose distinguishes it from the other land conveyed.' An exception of land previously conveyed by the grantor is not void for uncertainty because the means is pointed out for 1 Brown v. Meady, 10 Mc. 391, 25 Am. ^ Truott v. Adams, 66 Cal. 21, 5 Pnc. Dec. 248. Kep. 96 ; McCormick v. Monroe, 1 Jones, 2 Jones V. Motley (Ky.), 1.3 S. W. Rep. 1.3; Melton v. Monday, 64 N. C. 295; 432. Eastern Carolina Land Co. v. Frcy, 112 3 Lego V. Medley, 79 Wi.s. 211, 48 N. N. C. 158, 16 S. E. Rep. 902. W. Rep. .375. '"' Hetcliell v. Whittcmore, 72 Mc. 393. * Jolinson r. Ashland Luniher Co. 47 ' KN-idiiiger v. Cleveland Iron M. Co. Wis. 326, 2 N. W. Rep. 552. 39 Midi. 30. 431 {n ;V22.] KXCEITIONS AND KKSKRVATIONS. imiking the excepted pait certain.^ A deed of a large tract of laiiiK exci'pling therefrom a tract of fifty acres sold to another person, does not pass to such grantee the legal title to such ex- chuled tract, although no deed of this tract has been made to the person who purchased it.^ If the parcel excepted be otherwise sulliriently described, the statement that it had been sold may be rejected US faha demonstration An exception of "all the lots heretofore sold," with no further desci-iption of the excepted lots, would necessarily cover only such lots as had in fact been sold, for in that case the sale of the lots was the only means of point- ing them out.-* In a grant by a State, an exception of a tract previously entered and surveyed is a valid exception.^ So an exception of a portion of the land conveyed which is then occu- pied for certain purposes is valid, because the means of identifi- cation are supplied by the reservation itself.'' 522. An exception of a dower right already set off suflB- ciently describes both the estate and the boundaries of the land. A reservation or exception of a dower right in the land already conveyed is a reservation of only such interest as the widow had a legal right to convey ; and if she has conveyed in fee the land allotted to her, an exception in the deed of the heir of the dower right already conveyed is an exception of a life estate, and not of an estate in fee simple." An exception of a widow's right of dower not then assigned is a good exception, because this right may be made certain by setting it off.^ An exception of land within the granted parcel 1 Cornwell v. Thurston, 59 Mo. 156; ^ Brown v. Rickard, 107 N. C. 639, 12 McConnick v. Monroe, 1 Jones, 13; King S. E. Rep. 570; Midj^ett v. Wharton, 102 'v. Wells, 94 N. C. 344 ; Rockafeller v. N. C. 14, 8 S. E. Rep. 778. Arlint,'ton, 91 111. 375; Johnson r. Ash- ^ Reidinger v. Cleveland Iron Co. 39 land Lumber Co. 47 Wis. 326, 2 N. W. Mich. 30. Rep. 552; McAfee v. Arline, 83 Ga. 645, ' Bird v. Cruse, 114 N. C. 435, 19 S. E. 10 S. E. Rep. 441. Rep- 276 ; Austin v. Willis, 90 Ala. 421, - Low V. Settle, 32 W. Va. 600, 9 S. E. 8 So. Rep. 94, where there was an admin- Rep. 922; Roberts v. Robertson, 5.'? Vt. istrator's sale excepting certain land 690, 38 Am. Rep. 710; Rockafeller v. allotted to the widow as dower. Arlington, 91 111. 375. ^ Stockwell v. Couillard, 129 Mass. 3 Roberts v. Robertson, 53 Vt. 690, 38 231, 234; Canedy v. Marcy, 13 Gray, Am. Rep. 710. 373; Meserve v. Me.serve, 19 N. H. 240; * Roberts v. Robertson, 53 Vt. 690, 38 Swick v. Sears, 1 Hill, 17 ; Clark v. Cot- Am. Rep. 710, per Powers, J. trel, 42 N. Y. 527. In the latter case it 432 GENERAL REQUISITES AND RULES OF CONSTRUCTION. [§ 523. previously conveyed by the grantor is a valid exception, because the means is pointed out for determining the excepted part.^ 523. The construction of a reservation may be determined, by the acts of the parties under the deed. The courts will not disregard the construction put upon the reservation by the acts and conduct of the parties for a period of years following the conveyance.^ Thus, where there was an exemption and resei*- vation " of sixty-eight feet of land from the east end of the de- scribed jiremises," and the grantor retained possession of a lot of that widtli along the whole east side of the land, putting the purchaser in possession of the I'emainder, and the parties built a fence along the line thus fixed, and the grantor built a house and barn on the portion held by him, and after many years conveyed the tract as being sixty-eight feet wide, it w^as held that the acts of the parties established the interpretation that the exception was of a strip sixty-eight feet wide along the east side of the lot, and not merely of sixty-eight square feet, which would be a strip of the width of only six inches.^ If the location of the excepted parcel or of a right of way is left to the election of the grantor, either expressly or impliedly, the uncertainty of location may be cured by his election within a reasonable time.* Until the right reserved is exercised it is inoperative, and the grantee may assert all the rights of an owner in fee.'^ On an issue as to whether a person deceased executed a deed of certain property, reserving therein a life estate, declarations made by him after the alleged date of the deed, while in pos- session of the property, are inadmissible to show the character of his possession. But where it is necessary to inquire into the nature of a particular act, and the intention of the person who did it, proof of what that person said at the time of doing it is was held that in a deod of a farm a res- 2 Jones v. De Lassus, 84 Mo. .041 ; crvalion of thirty acres, which had been Hardwick v. Laderoot, 39 Mich. 419; set off to the grantor's mother as her Choate v. Burnham, 7 Pick. 274. dower, was not merely an exemption of » Monfort v. Stevens, G8 Mich. 61, 35 the dower interest, but an exception of N. W. Hep. 827. Anrl see Louk v. Woods, that portion of the farm identified by 1.5 111. 2.56. reference to the assignment of dower. * Benn v. Hatcher, 81 Va. 2.5 ; Hart v. 1 Stockweli V. Couillard, 129 Mass. Connor, 25 Conn. 331 ; Jackson y. Smith, 231 ; Rockafeller v. Arlington, 91 111. 9 Johns. 100. 375. 5 Dygert v. Matthews, 11 Wend. 35. VOL. I. 433 s •• •J4.] EXCEPTIONS AND RESERVATIONS. juluiissihle as a part of tlio res gestrvinu; to himself the otlicr part of the farm, describing it, ''for nnd (luring his natural life, and after iiis de- cease to revert to the party of the second part and his lieirs for- ever," it was held that no title to the land reserved passed to the grantee ; Mr. Justice Campbell saying that " no estate can pass bv deed that is not embraced plainly within tlie words of grant." ^ 526. A deed, in whatever terms, reserving to the grantor the enjoyment of the property during his life, is generally con- strued as a present conveyance of the fee to the grantee, subject to the reservation, and not as testamentary in character. Where the habendum clause of a formal conveyance in fee reserves to the grantors the right and use of the land during their natural lives, and the covenant of warranty contains the clause, " With the exception as above stated, the right of living and using said lot while they [the grantors] live," the right thus excepted out of the grant does not prevent the title from passing to the grantee.^ And so where a grantor in a conveyance to his daughter reserved to liimself, and, "should [liis wife] survive him, then at his death she shall have for her own use the full right, title, and estate in the undivided one half of the whole of the above-described properties, or one half of the rents, issues, and profits thereof, for and during her natural life," it was held that such deed was not a will, but the reservations were entirely consistent with a presently passing estate in fee simple in the grantee.'^ A general warranty deed in the statutory form contained, after the description, the following clause : " The grantor, C, hereby expressly excepts and reserves from this grant all the estate in said lands, and the use and occupation, rents and proceeds thereof, unto himself during his natural life." It was held that the reservation did not give the instrument a testamentary character, but passed a present estate in fee to the grantee, subject to a life estate in the grantor.* In a Georgia case the deed contained this 1 Ryan v. Wilson, 9 Mich. 262. * Cates v. Gates (Ind.), 34 N. E. Rep. - Cable V. Cable, 146 Pa. St. 4,51, 23 957, Hackney, J., saying : " The intention Atl. Rep. 223. to reserve a life estate i.s so clearly mani- 3 Knowlson;;. Fleming (Pa. St.), 30 Atl. fested by the words of reservation that it Rep. 519. See Eckman v. Eckman, 68 is difficult to believe that it was the inten- Pa. St. 460; Waugh v. Waugh, 84 Pa. tion to confer no interest upon the appel- St. 350, 24 Am. Rep. 191 ; Dreisbach v. lees nntil after liis death. It is more dif- Serfass, 126 Pa. St. 32, 17 Atl. Rep. 513. ficult to believe that it was the grantor's 436 GENERAL REQUISITES AXD RULES OF CONSTRUCTION. [§ 527. provision : " The title to the above-described tract of hmd to still remain in the said grantor for and during his natural life, and at his death to immediately vest in the said " grantee. It was held that the grantee took an immediate estate in fee, subject to a life interest in the grantor. ^ A conveyance to one to hold "during the term of her natural life, and after her death to revert to " the grantor and his heirs, creates a life estate only in the grantee, the fee remaining in the grantor. The land subject to the life estate may be sold to pay the grant- or's debts. The provision in the grantor's words, " to revert to me and my heirs," is not a granting phrase, and therefore does not create a limitation. The fee cannot remain in abeyance, ex- cept in cases of necessity, and in the case in hand there is nothing in the deed that requires the passing of the fee from the grantor.^ And so a deed to a grantee to hold " during the term of her nat- ural life," and after death for the use of the grantor, " as fully and to all intents and purposes as if this deed had never been executed," gives the grantee only a life estate, inasmuch as the deed does not in express terms convey a fee, and the intention to convey a less estate is clearly expressed.'^ 527. Even a declaration that the deed shall not go into effect until the death of the grantor does not give it a testa- mentary character.^ Thus where a deed provided that the land should be divided between the grantees at the decease of the intention to expressly withhold the fee 59 Ala. 349; Griffith v. iMarsli, 86 Ala. from the grantees until after his death, 302, 5 So. Rep. 569 ; Daniel v. Hill, .52 for to have done so by the exception would Ala. 430 ; Bunch v. Nicks, 50 Ark. 367. have rendered the reservation of the 'use - Clark v. Ilillis (Ind.), 34 N. E. Rep. and occupation, rents and proceeds,' an 13. idle ceremony." » Kelly v. Hill (Md.), 25 At). Rep. 919. 1 White V. Hopkins, 80 Ga. 1.54,4 S. And see Winter i>. Gorsuch, 51 Md. 180; E. Rep. 863, the court citing Gumming Farquharson r. Eichelberger, 15 Md. 63. V. Gumming, 3 Kelly, 460; Spalding v. * Btinch v. Nicks, 50 Ark. 367, 7 S. W. Grigg, 4 Ga. 75 ; Robinson v. Schly, 6 Rep. 563 ; Shackclton v. Sebroe, 86 111. Ga. 515; Taylor i\ Sutton, 15 Ga. 103, 616; Wall v. Wall, 30 Miss. 91, 64 Am. 60 Am. Dec. 682; Moye ;•. Kittrcll, 29 Dec. 147; Wyman zj. Brown, 50 Me. 139; Ga. 677; Bunn v. Biinn, 22 Ga. 472; Abbott r. Ilolway, 72 Me. 298; Chancel- Watson V. Watson, 22 (ia. 460 ; Meek y. lor v. Windham, 1 Rich. 161, 42 Am. Holton, 22 Ga. 491 ; Johnson r. Hines, 31 Dec. 411; Owen v. Williams, 114 Ind. Ga 720. In the l.'i«t case the grant was 179, 15 N. E. Rep. 678; rhilip.s v. Lum- " to have and to hold, after my deatli, the ber Co. (Ky.) 22 S. W. Rep. 652 ; Rey- aforesaid property." See, also, Williams nolds r. Towell (Ky.), 1 1 S. W. Rep. 202 ; V. Tolbert, 66 Ga. 127 ; Hall v. Burkham, Waugh v. Waugh, 84 Pa. St. 3.50. 487 § ^-^^-^ KXCKPTIONS AND RESKRVATTONS. i;Tantor, and ihiit then the title sliould vest in them absolutely, it was held that it vested a present estate in fee simple, possibly re- sei'vin^' a life estate. The court said: '•'• The lade is, that unless an instrument, which has been fully executed, from every point of view seems to be a nullity, it will not be intended that the parties meant that it should be invalitl, and some effect will, if possible, be givt>n it." • Where a father conveyed land to his son, reserving a life estate to himself and another, on condition that yearly payments should be made to them during their lives, with a provision that at the death of the grantor the title should be in the grantee, it was held that the son took a vested remainder at the time the deed was executed. His title was therefore superior to that of a mortgage executed by the father after the recording of the deed to the son. 2 528. A reservation to a third person, not a party to the deed, is void.3 The same is true of a condition or of a restriction by way of an implied covenant.'* Thus, if the owner of land in making a covenant reserves a privilege in the well on the granted premises for the lots owned by third persons named, the reserva- tion is inoperative as being made to strangers to the deed. This 1 Spencer v. Robbins, 106 Ind. 580, 5 N. E. Rep. 726. The cases of Turner r. Scott, 51 Pa. St. 126, and Leaver v. Gauss, 62 Iowa, 314, 17 N. W. Rep. 522, seem to be in conflict with the numerous cases cited iu this and the preceding section. Babb V. Harrison, 9 liich. Eq. Ill, 70 Am. Dec. 203. 2 Hitchcock V. Simpkins, 99 Mich. 198, 58 N. W. Rep. 47. 3 Shep. Touch. 80; Stockwell v. Conil- lard, 129 Mass. 231, 233; Murphy v. Lee, 144 Ma.'ss. 371, 11 N. E. Rep. 550; Plorn- beck V. Westbrook, 9 Johns. 73 ; Ives V. Van Auken, 34 Barb. 566; Walrath V. Redfield, 18 N. Y. 457; Blackmnn v. Striker, 142 N. Y. 555, 37 N. E. Rep. 484 ; Bridget v. Pier.son, 1 Lan.s. 481, 45 N. Y. 601 ; Jackson v. Swart, 20 Johns. 85, 87 ; Voorhees v. Presbyterian Church, 8 Barb. 135, 147; Borst i'. Empie, 5 N. Y. 33, 38; Craiir v. Wells, 11 N. Y. 315; Corn- ing V. Troy Iron Factory, 40 N. Y. 191, 4o8 209 ; Schaidt v. Blaul, 66 Md. 141 ; Her- bert V. Pue, 72 Md. 307, 20 Atl. Rep. 182; Littletield v. Mott, 14 R. L 288; Young, Petitioner, 11 R. I. 636. In this case the grantor reserved a life estate in the realty conveyed, and " also the right and privilege, for those who may be appointed to settle my affairs after ray decease, to cut off and sell all the wood and timber — or so much thereof as may be necessary to pay whatever debts I may owe, and the expense of my last sickness and funeral expense.*, after my personal property left at my decease shall have bc'-n appropriated and used for that pur- pose, growing upon the ten acres of the easterly part of said premises." Thi.s ])rovision was held void as a reserva- tion because made to others than the grantor. * Shep. Touch. 120; Jackson i\ Top- ping. 1 Woiid. 388. 19 Am. Dec. 515; Craig v.. Wells, 11 N. Y. 315. GENERAL REQUISITES AND RULES OF CONSTRUCTION. [§ 529. rule of construction is not changed by the fact appearing that llie grantor was at the time of the conveyance in possession of one of the lots under a contract of purchase, the lot being owned at that time by a stranger, as recited in the deed.^ A reservation for the benefit of the grantor and his successors cannot be taken advantage of by persons not claiming title through the grantor. ^ A reservation in favor of a third person, though not good as a reservation, has sometimes been held to preclude the grantor from interfering with the exercise of the right nominally re- served.'^ But a reservation is considered as made to the grantor when valuable rights are secured to him, although others may also be benefited by the reservation, as where one granted a lot of land opposite his house, "to be in common and unoccupied."* An attorney' in fact executing a deed for his principal cannot make a sood reservation to himself and his descendants. He is a stranger to the deed, and no interest can vest in him, and much less in his descendants, by a reservation.^ Under a reservation of a right of several use to two or more persons, either of them may maintain an action for damages re- sulting from the obstruction or interference wath the enjoyment thereof, without joining with him others not affected by the ob- struction or interference complained of.*' 529. But although a reservation will not give any title to a stranger, it may operate as an exception to the grant, if such appears to be the intention of the parties. The tendency of the decisions upon this subject is to give effect to the intention of the parties as manifested by the whole instrument, witliout much regard to the strict literal sense of the terms used." The Supreme Court of Michigan in a recent case say:*^ '"From an 1 Ives V. Van Aiiken, 34 Barb. 566. « Herbert t-. Pue, 72 Mci. 307, 'JO AiL 2 MoultOD V. Faufrbt, 41 Me. 298. It Rep. 182. is competent for a prantor to re.serve an " jMiirtui v. Cook (Mieh), 60 N. W. la-^ement for burial purposes for himself Kep. 679, eiting Shop. Toucli. 86 ; Biiil;;er and the other heirs of his father. Black- v. Pierson, 45 N. • Y. 601; West Point man v. Striker, 142 N. Y. 555, 37 N. E. Iron Co. v. Reymert. 45 N. Y. 703 ; Rich- Keji. 484, 29 Abb. N. C. 467, 21 N. Y. ardson i'. Palmer, 38 N. II. 21 S; Coining Supp. 563. V. Nail Factory, 40 N. V. 191 , 209 ; Hall v. 3 Hodge r. Boolliby, 48 Me. 68 ; Knight Ionia, 38 Mich. 493 ; Ericson v. Iron Co. V. Mains, 12 Me. 41. 50 Mich. 604, 16 N. W. Rep. 161 ; Basselt * Gay V. Walker, 36 Me. 54, 58 Am. v. Budlong, 77 Mich. 338, 43 N. W. Ren. Dec. 734. 'JM. 6 Herbert v. Pue, 72 Md. 307, 20 Atl. " Martin v. Cook (Mich.), 60 X. W. Rep. 182. Rip. 679. 439 § 5o0.] EXCEI'TIONS AND KKSKUVA I IONS. examination of the cases cited, and the decisions of the courts of this ooiintry generally upon the question here involved, it will be observed that, wliilc the rule that a reservation in favor of a stranger to the iiistruuient is invalid as a reservation has been adhered to, yet, in order to effectuate the intention of the grantor, siieh a reservation lias uniforndy been treated as excepting from the grant the thing reservi'd. Nor has this holding becni con- fined to eases where the reservation had been previously cai'ved out. It has been repeatedly held that a conveyance of land, reserving or excepting the dower interest of a stranger to the deed, was a good exception." ^ In the case from which this quo- tation is made it was held that, where the grantor reserved to himself and to his daughter, who was a stranger to the deed, an estate for the lives of both in the propei'ty conveyed, the reserva- tion of the life estate was valid as an exception to the grant in the deed. The owner of land, over which a third person had a right of way, in conveying it i-eserved to such person the right of way. It was held that, although strictly a reservation in a deed is ineffectual to create a right of way in any person not a party thereto, yet, there being in fact a right of way existing at the time of the grant, the clause must be construed as an exception from the property conveyed.- In a similar case a grantor re- served to a stranger to the deed " the right he has to the ore-bed, and the right of way to the West Point foundry as now used." The court say : " A reservation in a deed will not give title to a stranger, but it may operate, when so intended by the parties, as an exception." 2 A grantor in conveying land reserved one acre to a stranger to the deed. It was held that as a reservation it would be void, it being in behalf of a stranger to the deed. It was therefore held to be an exception of the acre, although the stranger took notlijng.* 530. A reservation expressed to be in favor of the public confers no rights in favor of any one except the grantor,'^ 1 Canedy v. Marcy, 13 Gray, 373; •* Corning r. Troy Iron Factory, 40 N. Meserve v. Meserve, 19 N. H. 240 ; Crosby Y. 191, 209. V. Montgomery, 38 Vt. 238; Swick v. » Hill v. Lord, 48 Me. 83; Elliot v. Sears, I Hill (N. Y.), 17. Small, 35 Minn. 396, .'Sg Am. Rep. 329; - Bridger v. Pierson, 4.") N. Y. 601. Horubeck v. Westbrook, 9 Johns. 73. 3 West Point Iron Co. v. Reymert, 45 N. Y. 703. 440 GENERAL REQUISITES AND RULES OF CONSTRUCTION. [§ 5o0. though there are Intimations in some cases that such a reserva- tion is valid in favor of the public.^ The reservation in such case may operate as an exception from the grant, and as notice to the grantee of adverse claims or rights as to the thing re- served.2 In general it may" be said that an exceptiun or reserva- tion may recognize existing rights in third persons who are not parties to the deed.'^ A reservation of a portion of the land con- veyed, that portion being '' now owned and occupied by " a third person, is merely a recognition of the title of such third person, and not a declaration of trust in his favor.'* A reservation of the right to open a highway on one side of the grunted land, with a provision that, if the highway shall be laid out, all the grantor's rights in it shall pass to the grantee, gives the grantor a right to dedicate the reserved land for a highway.^ A reservation was held to operate as an exception where one made a conveyance of a farm, " reserving to the public the use of the road through said farm, also reserving to the White ]Mountains Railroad the roadway for said road, as laid out by the raih-oad commissioners, and also reserving to myself the dam- ages appraised for said railroad way by the commissioners." The court say : " The result at which we arrive, therefore, upon a careful examination of the deed, and a deliberate considera- tion of all the circumstances under which it was executed, is tliat the plaintiff must have intended to sell, and the grantee to purchase, the farm, just as it was at the date of the conveyance, subject to the incumbrance of the public highway and of the White Mountains Railroad, as laid out through it ; the plaintiff retain- ing his claim for the unpaid damages awarded for the laying out 1 Tuttle V. Wiilker, 46 Me. 280; Cin- At the time of the conveyance there was ciiinati v. Newell, 7 Ohio St. 37. a ])ass!igcway four feet wide over which a - West Point Iron Co. v. Reymert, 45 right of way had been conveyed by the N. Y. 703 ; Hill v. Lord, 48 Me. 83. grantor as appurtenant to adjoining land 3 Murphy v. Lee, 144 Mass. 371, 11 N. which he had before that time conveyed. E. Rep. 550; Wood v. Boyd, 145 Mass. It was held that the right of way reserved 176, 13 N. E. Rep. 476; Cornwell v. in the words above quoted was not re- Thurston, 59 Mo. 156. In Murphy v. served as appurtenant to the land of sucli Lee, snjira, the deed contained these third person. It is an exception from the words : " There is a passageway on the grant of an existing riglit of way, and southeasterly side of tlie said premises, does not create a new right, wliieh is to be used in common with ilie ■♦ King v. Bishop, 02 Miss. 553. abuttors thereon." A third person owned ^ Dunn v. Sanford, 51 Conn. 443. land abutting on the land so conveyed. 441 § oai.j EXCErTIONS AND RESERVATIONS. of tlie railroad ; and that proper and apt words were used in the doed of conveyance to carry out that intention, without resorting to any doubtful construction, or giving to the grantee any advan- tage from the imperfection or uncertainty of the phraseology employed; the words expressing a reservation being made to operate, as only under the circumstances they can operate, as an exception to the general terms of the grant which precedes them." 1 531. An exception or reservation is construed most strongly against the grantor, on the ground that the words are his.'-^ When, however, t!ie intention of the parties can be fairly ascer- tained from the instrument, such intention must govern its con- struction.'"^ If tiie terms of the instrument leave the intention of the parties uncertain and susceptible of more than one interpreta- tion, the court will look to the surrounding circumstances exist- ing when the deed was executed, such as the situation of the parties and of the subject-matter of the deed.^ The meaning of ii reservation may often be determined by the expression of the purpose for which it was made.^ 1 Hichardson v. Palmer, 38 N. H. 212. - Shep. Touch. 87 ; Blackman v. Striker, 142 N. y. 555, 37 N. E. Rep. 484; Jack- son V. Gardner, 3 Johns. 394; Jackson v. Hudson, 3 Johns. 375, 3 Am. Dec. 500 ; Diiryea v. Mayor, 62 N. Y. 592 ; Ives !-•. Van Auken, 34 Barb. 566 ; Jackson v. Myers, 3 Johns. 388 ; Grafton v. Moir, 130 N. Y. 465, 29 N. E. Rep. 974 ; Provost r, Calder, 2 Wend 517; Borst v. Empie, 5 N. Y. 33, 40 ; Craig v. Wells, 1 1 N. Y. 315 ; Noble v. 111. Cent. R. R. Co. 1 11 111. 437 ; Sharp v. Thompon, 100 111. 447, 450, 39 Am. Rep 61 ; Alton v. 111. Trans. Co. 12 111. 38, 58, .52 Am. Dec. 479 ; Gates V. Gates (Ind.), 34 N. E. Hep. 957, per Hackney, J.; Scott v. Michael, 129 Ind. 250, 28 N. E. Rep. 546 ; Darling v. Crow- ell, 6 N. H. 421 ; D:uia r. Conant, 30 Vt. 246; Green Bay Canal Co. v. Hewitt, 66 Wis. 461, 29 N. W. Rep. 237; Elliot v. Small, 35 Minn. 396, 59 Am. Rep. 329. Thus in a lease a reservation of " all tim- ber trees and other trees, but not the an- nual fruit thereof," was held not to apply to apple-trees, for the word " trees " does 442 not generally include orchard trees, but only trees for timber; and the word " fruit " was in the old books used to de- note the product of timber trees. At any rate, it being doubtful whether it was in- tended to except fruit trees, the words of exception Hre construed favorably to the lessee. Bullen r. Denning, 5 B. & C. 842. A reservation in a deed of land by a rail- road company, " reserving and excepting ... a siri]) extending through the same ... of the width of 400 feet, — that is, 200 feet on each side of the centre line of the railroad, or any of its branches, — to be used for right of way," covers one such strip only ; and, under such reservation, the railroad compiiny cannot claim a right of way, both for its main line and a branch line, over the tract so conveyed. Dunstan V. Northern Pac. R. Co. 2 N. D. 46, 49 N, W. Rep. 426. •^ Wiley V. Sidrorus, 41 Iowa, 224; Warden v. Watson, 93 Mo 107. ■» French ;,-. Carhart, 1 N. Y. 96. 6 Kedcr v. Wood, 30 Vt. 242 ; Hays v. Askew, 5 Jones, 63. GENERAL REQUISITES AND RULES OF CONSTRUCTION. [§ 532. An exception of the fee is not implied. The intent to make such exception must appear in express terms. If the grantor intends to except his right to the soil it is easy for him to do so, and, if he does not express an intention so to except it, such intention will not be implied.^ A deed containing a reservation of pasturage for two cows during the lifetime of the grantor, or with a stipulation that the grantee is not to incumber or convey the hmd meantime, does not create an estate on condition, but conveys a ft^e subject to the reservation.^ A reservation of certain apple-trees in the orchard, two stalls in the southwest corner of the barn, and twelve feet square over said stalls for hay, which reservation is for the use of the grantor's mother, was held to be a reservation for the life of his mother, and not an exception.'^ 532. One tenant in common cannot, in a conveyance of his interest to a stranger, reserve a right of way or other easement in any particular part of the land, for this would be an attempt to create a several interest in the land held in common.^ But he may do this in a conveyance to the other tenant in common, for the latter upon such conveyance has the entire property, and the reservation operates by way of an implied re-grant.^ Where two tenants in common made partition of the land which they had in •common, and one of them in his deed of release reserved all the wood standing on a certain lot, with the right to him, his heirs and assigns, to enter and cut the wood and take it away, the court remarked that a reservation or exception could onl}^ be out of the estate granted ; and therefore that this clause could not operate by way of reservation or exception upon the undivided half of the land, which had never been in the grantor, but which was before the division, and afterwards remained in the grantee. As to the other undivided half, the clause might operate strictly as a reservation or exception. The court, however, regarded the clause as having the effect of a parol transfer of the wood then standing on the premises, as personal property, and a license to €nter and cut the same;, which was good until revoked, was assign- 1 CarlHOU V. Duluth Sliort Line Ky. Co. ■• Marshall v. Trumbull, 28 Conn. 183, 58 Minn. 30.5, 37 N. W. Ke|). 341. 73 Am. Dec. 667; Adam v. Briggs Iron - Bray v. llu.ssey, 83 Me. 329, 22 Atl. Co. 7 Cush. 361. Rep. 220. ^ Jones v. De Lassus, 84 Mo. 541. 8 Keeler v. Wood, 30 Vt. 242. 443 §§ .").)8, 534.] Kxcia'TiONS and kkskuvations. able without deed, and wliicdi, after it luid been acted upon and tlie trees cut down, could not be countevMianded.' 533. A reservation includes rights not mentioned "which are indispensably necessary to the exercise of the right s[)ecifi- eully reserved. Thus a right reserved, to flow the granted land to a certain point, includes the right to nuxintain a dam necessary to flow the land to such point. ^ Thus, also, the grant of a mill which is worked by water power carries with it the use of the water, the dam, and all things necessary for using the mill. The grant of a farm carries with it the grantor's interest in a ditch and water-right necessary to the enjoyment of the land.^ An exception of mines and minerals carries with it all powers and easements necessary for working the same.* Powers of working expressly reserved do not abridge the powers which the law con- fers as incident to the exception.''' 534. A way of necessity arises in case the grantor has other land which can only be reached by passing over the land con- veyed. Such a way is regarded as a way created by tacit i-eserva- tion or exception.*^ The way is annexed to the land for which it is required, and passes to the grantor's assigns as owners of such land." " A right of way over the grantor's land may arise in several aspects, as when one man sells to another land wholly surrounded by other lands which he retains, or where the parcel sold is surrounded partly by that retained and partly by that of a stranger, over which there is no right of access. The way in such cases is a necessary incident to the grant, and with- 1 Hill V. Cuttinjr, 107 Mass. 596. Rep. 245 ; rettingill v. Porter, 8 Allen, I, 2 St. Anthony Falls Water Power Co. 85 Am. Dec. 671, 675, note; Mitchell v. j>. Minneapolis, 41 Minn. 270,43 N. W. Seipel, 53 Md. 251, 36 Am. Rep. 404, 415- Rep. 56. 421. 3 Tucker v. Jones, 8 Mont. 225,19 Pac. " Clarke v. Coj^cre, Cro. J.uc. 170. " If Rep. 571 ; Cave v. Crafts, 53 Cal. 1.35. a man hath four closes lying fo;:cther, and * Aspden v. Seddon, L. R. 10 Ch. 394. sells three of them, reserving the middle » Cardigan v. Armitage, 2 B. & C. 197 ; close, and hath not any way thereto, biiL Erickson i'. Mich. Land & Iron Co. .50 through one of those which lie sold, al- Mich. 604, 16 N. W. Rep. 161. though he reserved not any way, yet lie 8 Holmes v. Goring, 2 Bing. 76, 9 shall have it, as reserved unto him by the Moore, 166, per Best, C. J.; Davies v. law." See, al.so, Bowen v. Conner, 6 Sear, L. R. 7 Eq. 427; London v. Riggs, Cush. 132; Collins v. Prentice, 15 Conn. L. R. 13 Ch. D. 798; Brigham v. Smith, 39 ; Myers v. Dunn, 49 Conn. 71 ; Chap- 4 Gray, 297, 64 Am. Dec. 76; Nichols v. pell v. New York, &c. R. Co. 62 Conn. Luce, 24 Pick. 102, 35 Am. Dec. 302; 195, 204, 24 Atl. Rep. 997; Stevens v. Rightsell V. Hale, 90 Tenn. 556, 18 S. W. Oir, 69 Me. 323. 444 GKNERAL REQUISITES AND RULES OF CONSTRUCTION. [§ 534. out it the grant itself would be useless. Tlie necessity of the case raises an implication that the parties intended that the right of way would pass with the grant, though not expressed therein." ^ A way of necessity ceases as soon as the necessity for its use ceases."^ A reservation of a way required by the grantor for the occupancy and use of his other land gives no greater right than a way of necessity, and ceases when the necessity for it ceases.'^ Such a I'ight of way is limited to the purposes for which it was necessary at the date of the conveyance under which it arose, and it cannot be used for any other purposes ; * and it is limited as to its duration by the continuance of the necessity for it.^ Thus a way of necessity ceases if at a subsequent time the person who is entitled to it can have access to the land to which the way led by passing over his own land.^ But tliis general rule as to ways of necessity has no application as against the State in grants of unsettled lands. '^ A way of necessity, according to most of the authorities, arises onl}"^ when the necessity for it is absolute, or clearly necessary to the beneficial enjoyment of the estate conveyed or reserved;^ though according to some authorities the necessity need be only reasonable and not strict.^ 1 Pearne v. Coal Creek Co. 90 Tenn. 619, 18 S. W. Rep. 402. It is also held in this ca.se that a grant of minerals by the owner of the surface land carries with it, by implication, a right to the reasonable use and enjoyment of the surface for all necessary mining purposes. So held, also, in Marvin v. Mining Co. 55 N. Y. 538, 14 Am. Kep. 322. - Holmes u. Goring, 2 Bing. 76, 9 Moore, 166; Pierce v. Selleck, 18 Conn. 321 ; Collins v. Prentice, 15 Conn. 39, 423, 38 Am. Dec. 61. 3 Viall V. Carpenter, 14 Gray, 126. ■• London v. Riggs, 13 Ch. D. 798. Thu.s, if the land to which the way of necessity led wa.s at the date of the con- veyance agricultural land, the owner can claim such a way as i.s suitable to the en- joyment of land in that condition ; but he cannot claim a right of wny suiiable to the use of it as building land. ^ Holmes v. Gorinir, 2 liing. 7fi ; Howen r. Conner. G Cush. l.'iJ. ^ Holmes v. Goring, 2 Bing. 76. '' Pearne a. Coal Creek Co. 90 Tenn. 619, 18 S. W. Rep. 402. Caldwell, J., said : "By public statutes, the State pro- vides for the establisbinent and mainte- nance of public roads penetrating every neighborhood, and sufficiently numerous to meet the general wants of her citizens. Beyond this, and the full protection of the title conferred, she owes her grantees, as such, no duty or obligation. It would be ruinous to establish the precedent con- tended for, since by it every grantee, fi-om the earliest history of the State, and those who succeed to his title, would have an im])lied right of way over all surround- ing and adjacent lands held under junior grants, even to tlie utmost limits of the State." ■^ Stevens ?•. Orr, 69 Me. 323 ; Warren V. Blake, 54 Me. 276, 89 Am. Dec. 748 ; Dolliff y. Boston & M. K. 6S Me. 173; Buss r. Dyer, 125 Mass. 287. '•* Goodall V. Godfrey, 53 Vt. 219; Col- 44.*) §§ 535, 536.] EXCEPTIONS and reservations. A way i)f necessity iiiay be located and established by a court of i'(|nitY, in such place and manner as may be necessary for the use of the party entitled to such way, without unreasonably bur- dening' the servient estate.^ 535. The construction of a reservation or exception, when this depends upon the terms used in the deed, is a matter of law to bi' determined by the court : but when the terms used leave the matter in doubt, and it is necessary to introduce extrhi- sic evidence to solve the doubt, the construction is then generully a question for the jury.^ ''■The primary rule of construction ap})licable to a clause in a deed in the form of an exemption or i-eservation is to gather the intention of the parties from the words by reading, not simply a single clause, but the entire con- text, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have consid- ered."' ^ III. Of Particular Exceptions and Reservations. 536. A reservation or exception of a house or other struc- ture is ordinarily a reservation or exception of the grantor's title to the land on which the house or other structure stands.'^ An exception of a mill is an exception of the land under it, indis- pensable to its use, unless there is something in the conveyance in- dicating a different intention, just as a grant of a mill under the same circumstances is a grant of the land under it.^ The partic- ular words used in the deed, and the facts and circumstances existing at the time, must be considered in arriving at the inten- tion of the parties. Thus, regarding the language used, a reser- vation " of all the buildings on the premises " is a reservation of the buildings only, and not of the land upon which the}' stand.^ A reservation of a mill notv standing secures to the gi'antor only lins r. Prentice, 15 Conn. 39; Phillip v. i-. Scott, 21 Pick. 25,32 Am. Dec. 238; Phiilip.s, 48 Pa. St. 178. Shannon r. Pratt, 131 Mass. 434; John- 1 Pearne v. Coal Creek Co. 90 Tenn. son v. Rayner, 6 Gray, 107, 110; Stock- 619, 18 S. W. Rep. 402. well v. Hunter, 11 Met. 448, 455, 45 Am. 2 School District v. Lynch, 33 Conn. Dec. 220. 330. 6 Moulton v. Trafton, 64 Me. 218; 3 Blackman v. Striker, 142 N. Y. 555, Forbush v. Lombard, 13 Met. 109; Esty 37 N. E. Rep. 484; Clark v. Devoe, 124 v. Currier, 98 Mass. 500. N. Y. 150, 20 N. E. Rep. 275. 6 Sanborn v. Hoyt, 24 Me. 118. ■« E^tv ,-. Currier, 98 Mass. .500; Allen 446 OF PARTICULAR EXCEPTIONS AND RESERVATIONS. [§ 587. the light to the use of the mill standing at the time of the exe- cution of the deed.^ An exception of buildings does not include the land under the buildings when it appears to have been the intention of the par- ties not to include the hind. The owner of land granted an undivided half thereof, " excepting and reserving all buildings and improvements, including a sawmill." At the time of the grant, a change in the condition and use of the premises was con- templated by the ])arties, whicli, when made, necessitated the abandonment of such buildings and improvements. It was held that the exception did not include any hind or right to land, except the right to leave the buildings standing thereon. ^ An exception of a building and one rod of land around it, the build- ing being rectangular in form, is construed to be an exception of land in a rectangular form, though small portions of the land at the corners of the lot would be more than one rod distant from the building. 3 A different construction is applicable to the reservation of a right or easement in land, which may well coexist and be enjoyed by the grantor while the ownership of the fee is in the grantee; such, for instance, as a reservation of a right of way, or a privi- lege of a highway.'^ In such case the fee does not pass by impli- cation, because it is not incidental or essential to the right or interest which is described by the deed. 537. Of mines and minerals. — The surface of the land may- belong to one man, and the minerals beneatii the surface may belong to another. Each may own a distinct part of the land.^ The owner of the land may convey a surface estate in fee in it, and reserve to himself an estate in fee in the minerals, or any particular species of them, or in any particular strata of min- erals ; in which case the vendee holds a distinct and separate estate in the surface or soil, and the vendor holds a distinct and 1 Howard v. Wadsworth, 3 Mc. 471. Rep. 802, 804 ; Snoddy v. Bolen, 122 Mo. 2 81iannon v. Pratt, 131 Ma.ss. 434; 479, 2.') S. W. Rej). 931; Wardell r. Green Bay & Mississippi Canal Co. v. AVatson, 93 Mo. 107, 5 S. W. Rep. 60.') ; Hewitt, 66 Wi';. 461, 29 N. W. Rep. Caldwell /■. Ftilton, 31 Pa. St. 475, 72 Am. 237. Dec. 760 ; Lillihriiljre v. Lackawanna Coal 3 Perkin.s v. Aldrich, 77 Me. 96. Co. 143 Pa. St. 293, 22 Atl. Rep. 1035; ■» .Jamaica Pond Aqueduct Co. i\ Chand- Chartiers Coal Co. v. Mellon, 152 Pa. St. ler, 9 Allen, 159. 286, 25 Atl. Rep. 597. 5 Kincaid v. McGowan (Ky.), 4 S. W. 447 § 538.] KXCKPTIOXS AND RKSEKVATIONS. separate estate in the minerals. There may be as many different owners beneath the surface as there are dilTerent strata of min- erals. By this severance each estate is subject to the; laws of descent, of devise, or conveyance. Each estate is as distinct prop- erty in the respective owners as is the property in a two-story house where the title to the lower story is in one person and the title to the upper story is in another person. An action of eject- ment will lie in behalf of the owner of the surface to recover it; also an action will lie on behalf of the owner of the mineral estate to recover that ; and the right of either owner may be barred by the statute of liuiitatioiis.^ When the owner of the surface of land has granted to another the coal under his land, he has a right, apart from any reservation of It in the deed, to access through the coal to the strata underlying it.- The purchaser's estate in the coal is determinable upon the removal of the coal ; and when all the coal is removed, the space it occupied reverts to the grantor by operation of law. For this purpose there is no need of any reservation in the deed. The purchaser of the coal strata has no interest in the strata under- lying the coal, aside from the servitude for support, until the coal is removed.'^ 538. An exception of mines or ores is a corporeal heredit- ament ; it is an exception of the substance of the land.* Under the English system, when livery of seisin was regarded as indis- pensable to a conveyance of land, inasmuch as livery could not be made of an unopened mine, the right to take ores from a mine was regarded as incorporeal. But in this country, where livery of seisin is supplied b}' the deed and its registration, a grant or exception of the ores of an unopened mine is regarded as a grant or exception of part of the inheritance of the land, as much as a 1 Knight V. Indiana Coal Co. 47 Ind. Va. ,315, 10 S. E. Rep. 3. A privilege of 105, 110, 17 Am. Rep. 692. taking ore is an incorporeal hereditament. 2 Chartiers Coal Co. v. Mellon, 152 I'a. It is not a sale or reservation of the ore, St. 286, 31 W. N. C. 425. but a right to be exercised within the ' Chartiers Coal Co. y. Mellon, 152 I'a. lands of another. It is not an exclusive St. 2»6, 31 W. X. C. 425. right, but one to be enjoyed in common * Caldwell i-. Fulton, 31 Pa. St. 475, 72 with the owner. Johnstown Iron Co. v. Am. Dec. 760 ; Knight v. Indiana Coal & Cambria Iron Co. 32 Pa. St. 241, 72 Am. Iron Co. 47 Ind. 105, 110, 17 Am. Rep. Dec. 783; Gloninger v. Franklin Coal 692 ; Kincaid v. McGowan (Ky.), 4 S. W. Co. 55 Pa. St. 9, 93 Am. Dec. 720. Rep. 802, 804; Lee v. Bumgardner, 86 448 I OF PARTICULAR EXCEPTIONS AND RESERVATIONS. [§ 538. grant or exception of the surface would be.^ Even an exception of one half of the profits of all coal and other minerals which may be found in the land is held to be an exception of the profits of all such coal and minerals in place.^ The right cannot be exercised to the damage of the surface, unless provision for such damage is contemplated and provided for, even if the value of the right is destroyed by this restriction.^ Only such use of the surface can be made as the reservation pro- vides for.* If the parties have provided that the grantor shall make compensation for injury done to the surface, he will not be restrained from doing such injui-y, or made subject to an action of ejectment, but the owner of the surface will be left to the remedy provided for.° An exception of "all and all manner of metals and minerals, substances, coals, ores, fossils, and also all manner of composi- tions, combinations, and compounds of any or all the foregoing substances, and also all valuable earths, clays, stones, paints, and substances for the manufacture of paint upon or under the said tract of land," includes clay suitable for making bricks, and is not restricted to the kind of clay from which paint could be manufactured.*^ 1 Caldwell v. Fulton, 31 Pa. St. 475, 72 Hext v. Gill, L. R. 7 Ch. 699. And see Am. Dec. 760; Algonquin Coal Co. v. Shell v. German Coal Co. 139 111. 21, 28 Northern Coal Co. (Pa.) 29 Atl. Rep. 402. N. E. Rep. 748. Williams, J., said : " Until a severance * Dietz v. Mission Transfer Co. 95 Cal. takes place between the surface and an un- 92, 30 1'ac. Rep. 380, 25 Pac. Rep. 423. In derlying estate, the owner's title reaches this case the owner of a ranch, in convey- frora the centre to the surface, and from ing a portion of it, reserved the oils and the surface to the heavens; and with a minerals, with the right to do whatever grant of the land, or an acquisition of title was necessary to obtain and transj)ort by an adverse holding, the entire estate of such minerals, including the erection of the former owner passes. When a sev- proper machinery and the laying of pijies. erance takes place, and the holder of a It was held that the owner of the oils and stratum of coal or other mineral records minerals, who had also acquired the oils his title, or enters into possession of his and minerals in the remaining portion of sub-surface estate, he is not affected by the ranch, was not authorized to use the the state of the title to, or the possession land first conveyed for the purpose of of, the surface. This was very recently pumping or storing oil found in other por- said in Plummer v. Iron Co. (Pa.) 28 Atl. tions of the ranch. Rep. 853." And see Kingsley v. Hillside ^ Bucclcuch v. Wakefield, L. R. 4 H. L. Coal Co. 144 Pa. St. 613, 29 \V. N. C. 368. 377 ; Aspden v. Seddon, L. R. 10 Ch. 394 ; 2 Weakland v. Cunningham (Pa.), 7 Erickson v. Michland Iron Co. 50 Mich. Atl. Rep. 148. 604, 16 K W. Rep. 161. » Davis i;. Treharne, L. R. 6 App. Cas. " Foster v. Runk, 109 Pa. St. 291, 58 460 ; Love v. Bell, L. R. 9 App. Cas. 286 ; Am. Rep. 720. VOL. I. 449 §§ .')o9, 540.] EXCEPTIONS AND RESERVATIONS. A rosorvation of ''all mincvals " does not iuclude petroleum oil. 'Hioiii^h petroleum is a mineral, such is not the general unih'rstandiiig, and the })arties are supposed to have contracted with reference to the general meaning of the terms used.^ A reservation to the grantor, his heirs and assigns, of the right to mine a sufficient quantity of iron ore for the supply of any one furnace carries with it the right to supply any furnace which the grantor or his assigns may choose to use. The ore taken from the mine under such reservation is the absolute property of the grantor or his assigns, and he may use it or sell it, provided the quantity so used or sold does not exceed the quantity meas- ured by the capacity of one furnace.^ A reservation to the grantor, his heirs and assignees, of "a free toleration of getting coal for their own use," does not reserve all the coal beneath the surface, but merely an incorporeal right, concurrent with the mining right of the grantee, to get and carry away such coal as the grantor and his assigns may personally need for fuel.^ 539. A reservation, in a deed of lands by a boom company, of a free and unobstructed passage with teams and men along the banks of a river and across the granted premises, in carrying on its " business," gives it the right to enter on the lands for the pur- pose of removing into the river logs that in time of high water had floated over the banks and had lodged upon the granted premises ; it appearing that a very considerable portion of the company's business, when the deed was executed, consisted in making such removals.^ 540. One may reserve to himself the "water in a stream upon the land conveyed ; or he may reserve a portion of the water,'^ or the use of the water at certain times specified, as, for instance, "in times of low water, when it is wanted for the grant- or's mill." ^-' He may reserve sufficient water to operate a mill, ' Dunham v. Kirkpatrick, 101 I'a. St. elude in the reservation marhle or ser- 36, 47 Am. Rep. 696 ; Deer Lake Co. v. pentine deposits subsequently discovered. Michigan Land Co. 89 Mich. 180, ,50 N. 2 Alden's Appeal, 93 Pa. St. 182; Cole- W. Kep. 807. In the last-named case the man v. Brooke, 12 Phila. .503. deed contained the reservation : " Saving ^ Algonquin Coal Co. v. Northern Coal and reserving to the grantor herein ... Co. (Pa.) 29 Atl. Rep. 402. all mines and ores of metal that are now * Bradley v. Tittabawassee Boom Co. or rnay be hereafter found on said lands." 82 Mich. 9, 46 N. W. Rep. 24. It was held that, as the only valuable ^ Hurd v. Curtis, 7 Met. 94. mineral found in that region at the time ^ jjood v. Johnson, 26 Vt. 64 was iron, it was not the intention to in- 450 OF PARTICULAR EXCEPTIONS AND RESERVATIONS. [§ 541. such as a sawmill or gristmill, or to propel certain specified machinery ; and in such case it is considered that the limitation applies particularly to the quantity of water to be used, and not to the purpose for which it may be used, and therefore the grantor is entitled to use the water for any purpose not requiring a greater power than that reserved.^ A reservation of the right to divert a stream of water from its channel, to be used for cer- tain purposes and returned to its channel, gives no right to divert or use it for other purposes, and an injunction lies to restrain its use for unauthorized purposes.^ A deed of a water power, " except sufficient to operate the mills . . . limited to one hundred horse-power," is a reservation of only so much as may be needed to operate the mills, not ex- ceeding the amount named, and not a reservation of that amount in any event.-^ The reservation of a mill and water privilege, in a grant of land bounded on or near a pond or stream, is a reservation of the right to flow the granted lands as far as necessary or convenient, or so far as it has been usual to flow them for the use of the mill.* 541. A reservation of a spring of water gives the grantor a right of action against the grantee for a conversion of the water by putting down an aqueduct which diverts the water continu- ously from the spring, and he is at least entitled to nominal dam- ages.'5 A reservation of the right to take from a well, cistern, or spring " all the water which the grantee, his heirs or assigns, shall not use," means only so much of the water as he or they may not use in a reasonable enjoyment of the property conveyed. The grantor has no ground of complaint if the grantee's use of the water is a reasonable one.^ A reservation of a well of water means not only the opening which reaches down to the water, but the whole opening in the earth, with the stone laid in the well, and the water therein. The owner is entitled to cover the well with an erection not ex- tending beyond the well.'^ 1 Cromwell v. Sclden, 3 N. Y. 253. 6 Peck v. Clark, 142 Mass. 436, 8 N. E. And see Garland v. Hodsdon, 46 Me. 511. Rep. 335. 2 Mall V. Ionia, 38 Mich. 493. « Wilcox v. Kendall, C3 N. H. 609, 3 8 Moore r. Wilder, 66 Vt. 33, 28 Atl. Atl. Rep. 633. Rep 320. '' Mixer v. Reed, 25 Vt. 254. * Pettee v. Hawes, 13 Tick. 323 ; French i;. Carhart, 1 N. Y. 96. 451 § 542.] EXCEPTIONS AND RESERVATIONS. A reservation of a right to take water from a well imposes upon the grantee no obligation to keep the well in repair, or to preserve its existence.^ A reservation of "the use of a well" does not <'ive the grantor the exclusive use of it if the water is ample for the use of both the grantor and the grantee.^ 542. An exception or reservation of an existing highway passing tlirough the granted land is usually for the purpose of relieving the grantor from his covenant against incumbrances, and the fee in the land so excepted passes to the grantee.'^ The grantor might make it plain that he retained the fee in the high- way in himself ; and, on the other hand, the exception maybe made in terms that make it certain that the grantor did not intend to retain the fee in himself, but only to guard against any claim that miixht be made under his covenants. This is the case where the exception was made in a clause which stated the quantity of the land exclusive of the county road, which the grantor reserved."^ A deed conveying land in a town, but "reserving streets and alleys according to recorded plat of the town," passes the fee in such streets, when such fee was at the time held by the grantor, subject to the easement of the public therein. The language of tiie deed could only be held to withhold the fee of the streets and alleys from its operation, upon the hypothesis that the fee of the streets and alleys is vested in the municipality, for that is the measure of what is withheld from the operation of the deed ; and therefore, if an easement only in the soil of the streets and alleys is vested in the municipality for the use of the public, that only is withheld from the operation of the deed.'"' ^ Ballard v. Butler, 30 Me. 94. Coombs did not intend by those words to - Barnes v. Burt, 38 Conn. 541. except from his conveyance of the whole 2 Day V. Philbrook, 8.5 Me. 90, 26 Atl. farm the soil or land under this town Rep. 999. The grantor's farm was di- road. He did not intend to interpose vided into two parcels by a town road, a barrier between different parts of the He sold the northerly parcel, bounding it farm. We cannot see any motive. It is by such road, and afterwards sold the evident, we iliink, that he merely intended southerly parcel, making the road the to exclude from his covenants of war- northerly line. In the first deed the grant- ranty, etc., the incumbrance of the town or at the end of the description added the road. We think the words used have no following words : " Reserving the town effect, and that, in spite of them, the fee road leading through the farm." It was in the strip occupied by the road passed held that the fee of the road was not re- to Rowell, and hence not to the plaintiff, served, but only its use as an incumbrance, who docs not claim under Rowell." The court, Emery, J., said: "As to this * Kuhn v. Farnsworth, 09 Me. 404. ciyutcn'.'.ow, it seems clear to us that ^ Gould v. Howe, 131 111. 490, 23 N. E. 4")2 Rep. 602. OF PARTICLE iR EXCEPTrONS AND RESERVATIONS. [§ 542. An exception of sc much vi the land conveyed as has been taken for a public roa..< is an exception of the land covered by the road, the fee remaining ii, the grantor.^ But ordinarily an exception of a road or highwi»y laid out through the land is an exception of the public easement only, the fee of the land pass- ing to the grantee.^ Even an exception of a street, defined in location and width, to be Lid out for the use of the public, in lieu of an existing street Laving a different location, is regarded as a reservation of the ea^oment of the street, the title to which passed to the grantee.^ Under a reservation oi a strip on one side of the tract con- veyed " for a public street^ ' the fee passes to the grantee. If the grantor intended to except xhe fee of the street, his intention was not expressed by reserving the strip for a public street and for no- thing else.^ A reservation of a r-oad tnrough the land conveyed for the use of the parties to the deed, iheir heirs and assigns, to enable the grantor to reach other lands owned by him from a highway, is 1 Munn V. Worrall, 53 N. Y. 44, 13 Am. Rep. 470 ; In re Board of Street Oi>ening, 68 Hun, 562, 22 N. Y. Supp. 1021 , ^{ush- ton V. Hallett, 8 Utah, 277, 30 Pac. Rep. 1014. A deed, after describing land, provided : "It being understood that the public thoroughfare formerly existing along the edge of the river at this point is nut, in- tended to be conveyed, . . . the city . . . having the right to open said tho»ough- fare when it sees fit." It was h./ud an absolute reservation of the lana upon which the street had formerly be»n, and not a mere right of use to the '^ixWic Umscheid v. Scholz, 84 Tex. 2G5, 16 Vs. AV. Rep. 1065. A contract to convey land in a cUy spe- cified two parcels between whicrt was a strip that had been surveyed as n street, but had never been conveyed to the city as a street or otherwise. The weed given pursuant to the contract de«critaed the land as one parcel, and incluaexi the strip, but excepted " the street hereeoTOre deeded to said ciiy." Held, that t..e exception ing clause that the strip was " deeded " to the city was merely descriptive of the strip. Rushton r. Hallett, 8 Utah, 277, 30 Pac. Rep. 1014. - Peck V. Smith, 1 Conn. 103, 6 Am. Dec. 216 ; Leavitt v. Towle, 8 N. H. 96; Richardson v. Palmer, 38 N. H. 212; Tuttle V. Walker, 46 Me. 280; Cottle V. Young, 59 Me. 105; Hays v. Askew, 5 Jones, 63 ; Long v. Fewer, 53 Minn. 156, 54 N. W. Rep. 1071. In a deed of a lot of land fronting on the river, the following provision was held to amount to an ex- ce])tion : " It being understood that the pul)lic thoroughfare formerly existing along the edge of the river at this point is not intended to be conveyed by these presents, the corporation of the city of Bexan having the right to open said thor- oughfare when it sees tit." The grantee took no title in such land. Umscheid v. Scholz, 84 Tex. 265, 16 S. W. Rep. 1065. 3 Cincinnati v. Newell, 7 Ohio St. 37; Dunn V. Sanford, 51 Conn. 443. ■» Elliott V. Small, 35 Minn. 396, 29 N. W. Rep. 158; Carlson v. Dulutli Short excluded the strip from tiib operation of Line Ry. Co. 38 Minn. 305, 37 N. W.Rep. the deed, since ti?. >4!cil>-t,l In the cxcc])!- 341 ; Hays v. Askew. 5 Jones, 63. 453 §§ o43, 544.] KXCi-.PTioNs and heservations. ])iosuiiu'(.l, ill the absence of a clear induration in the deed to the contraiv, to he merely a reservation of the use of the road and not of the fee therein. • 543. In a deed by a city, an exception of streets is an exception of the fee of the streets, in case the city generally owns the fee of the streets. Thus, an exception of so much of the land ilescribed as may be required for streets laid down upon a map annexed to the deed is an exception of the fee of such streets, and not merely a reservation of an easement in the streets. The terms of the deed itself demand such a construction, which may be enforced by the circumstances of the particular case ; as where it appears to be the settled policy of the city to own in fee its streets. " As the city, then, owned in fee the land upon which all, or nearly all, its streets vi^ere constructed, and as it was the settled policy of the city to condemn or purchase land in fee for its streets, it cannot be supposed that it meant to depart from the usual course in this grant, and actually convey away the fee of the land needed for streets, and to reserve to itself only street easements therein."^ 544. Parol evidence is admissible to explain the purpose and extent of a reservation of a right of way, when these are left in doubt by the deed. Thus, vs^here a right of way, as previ- ousl}^ used, is reserved to the grantor, his heirs and assigns, the boundary of the tract conveyed being in pai't along the road, it may be shown that the grantor had other lands bordering on the road, and that the termini of the road were in his lands ; and upon such evidence the reservation will be held to be a right appurtenant to the land of the grantor not conveyed, and will pass to a subsequent purchaser of that land.'^ It is admissible to ascertain the circumstances existing at the time the deed was executed, though evidence of what the parties said or agreed at that time is inadmissible.* A reservation of a right of way to the grantor's other land, " as usually occupied," gives him a right of way for all purposes con- nected with the customary use of such land. If such land has 1 The Redemptorist v. Wenig (Md.), Y. 592, 96 N. Y. 477; Coffin v. Scott, 102 29 Atl. Rep. 667. N. Y. 730. 2 Mayor v. Law, 125 N. Y. 380, 390, 26 3 French v. Williums, 82 Va. 462, 4 N. E. Rep. 471; Langdon r. Mayor, 93 S. K. Rep. 591. N. Y. 129, 149; Duryea v. Mayor, 62 X. ■> Swiik r. Sears, 1 Hill (N. Y.), 17. 454 OF PARTICULAR EXCEPTIONS AND RESERVATIONS. [§§ 545-547. usually been used for the production of hay and other crops, though the grantor had never carted hay across the granted prem- ises, lie has the right to use the reserved way for this purpose, and to do so he may cut a limb from an overhanging tree.^ But a reservation of a right to pass over an old pathway to a lot described confers no right to pass farther upon the same pathway to another lot." The reservation of the right of ingress and egress, on foot and with teams, to and from the land on one side of that con- veyed, reserves a right of way reasonably wide for the passage of teams.3 545. Under a reservation of a right to open a highway across the grantee's land, the grantor may exercise his own judgment as to its location, if there are no restrictions as to its location, or after observing such restrictions as are set out in the deed. The grantee cannot demand that a jury shall pass upon the reasonableness of the exercise of the right in respect to the location of highway, having in view all the surrounding circum- stances and the situation of the land. The grantor has the right under such reservation to exercise his own judgment, provided he acts fairly and not wantonly.'^ 546. A passageway reserved by the grantor may be cov- ered over with a building by the grantee, provided he does not place any part of it upon the passageway, and leaves it of con- venient height, of the stipulated width, and with light sufficient for the purpose for wliich the passageway was reserved. The owner of the land has the entire beneficial use of it, subject only to the easement.^ This is a right to use the surface of the soil for the purpose of passing and repassing with sufficient light. If the dimensions of the way are not expressed, but the object is expressed, the dimensions must be such as are reasonably suffi- cient for sucli object.'' 547. A reservation of all gravel on the granted land gives the right to remove all deposits of which the greater part is gravel, or such as are commonly known as gravel, though they 1 Sargent t'. Ilnhhard, 102 Mhb.h. 380. ^ (Jeirisli r. Shattnck, 132 Mass. 235; 2 Farley v. IJiyaiit, 32 Mo. 474. Atkins v. Hordman, 2 Met. 457, 37 Am. 3 Glensoii i: Burroughs (Wis.), 63 N. Dec. 100. W. Rep. 292. •* Atkins v. Bonlman, 2 Met. 457, 467, < Hurt (•. Connor, 25 Conn. 331. 37 Am. Dec. 100, per Shaw, C. J. 455 § 548.] r.XCKrilONS and liKSKUVATlONS. rontain a mixturo of sand; but it gives no right to reserve sand alone.' In a deed by a town of tlie'^sand and gravel " on a be;ieh *' for making and repairing the highways," evidence is not admissible that material afterwards taken from the beach by the town was universally known in the town as gravel, and that it ■was not know^n or called by any other name ; but evidence is admissible that such nuiterial was the same that the town had always used for making and repairing highways.^ IV. Whether a Reservation is Personal or Appurtenant to the Land. 548. A reservation by the grantor of a right or interest forever, gives him only a life estate. As in a grant, so in a reservation to create an estate of inheritance, the necessary word of limitation, the word " heirs," must be used, and in general its place cannot be supplied by any other words of perpetuity .^ A reservation operates by way of an implied grant. It is either a right personal to the grantor, or is appurtenant to his lands, for the benefit of which it was reserved. In the latter case it cannot be separated from or transferred independently of the land to which it adheres. If it is a personal privilege, it is not assignable, and does not pass to the grantor's heirs or personal representatives. It is a privilege strictly personal to the grantor.'* A reservation of a right of way to a barn standing on a dwell- ing-house lot belonging to the grantor makes the right of way appurtenant to the dwelling-house lot for such purposes as a way to a barn might properly be used, and it is not lost by the destruc- tion of the barn standing thereon at the time of the reservation.^ 1 Noble V. 111. Cent. R. K. Co. Ill 111. wharf at tlic westerly corner of the lot, 437. to be improved and kept in repair at the ^ Brown v. Brown, 8 Met. 573. joint expense of the said parties, their ' Ashcroft V. Eastern R. R. Co. 126 heirs and assigns," it was held that, the Mass. 196, 30 Am. Rep. 672; Bean v. obligation to improve and repair being French, 140 Mass. 229, 3 N. E. Rep. 206 ; imposed on heirs and assigns, the right Cuiiis V. Gardner, 13 Met. 457 ; Jamaica reserved must by implication have the Pond Aqueduct r. Chandler, 9 Allen, 159; same duration and transmissible quality. Bridger v. Picrson, 1 Lans. 481 ; Horn- Perry v. Pennsylvania R. Co. 55 N. J. L. beck V. Westbrook, 9 Johns. 73 ; Knottsv. 178, 26 Atl. Rej). 829, 832. Hydrick, 12 Rinh.314; Koelle y. Knecht, ^ Kister v. Reescr, 98 Pa. St. 1, 42 99 111. 396. But where one conveyed a Am. Rep. 608. part of a larger tract, " reserving the free ^ Bangs v. I'arker, 71 Me. 458. and common iise and privilege of the 456 WHETHER A RESERVATION IS PERSONAL. [§§ 549, 550. A reservation b}' the grantor to himself or his heirs may be construed to be a reservation to himself a7id his heirs. ^ An exception need not be made with words of limitation, be- cause the estate or rights excepted remain the grantor's property, and inure to the benefit of his heirs and assigns, just as any of his property does.'^ 549. There is a distinction between easements and servi- tudes that are personal and those that are real. The former exist in favor of a particular person, and upon the sale of his land the personal right does not go with it.'^ But if the right attaches to the land, it jjasses by a conveyiince of the land, even without the use of any words descriptive of the right. A reservation of a right appurtenant to other land of the grantor passes with the land to wdiich it is appurtenant, witliout any words of limitation, to the heirs and assigns of the grantor.* A reservation will not be regarded as personal unless the inten- tion that it shall be such appears from the language used in the deed, or from the nature of the subject-matter. Thus the reser- vation of the use and occupancy of the granted land for a stated period, if the grantor should choose to do so for that length of time, but, if he should leave the possession and occupancy of the premises before the expiration of such period, then the reserva- tion should determine, is not a limitation personal in its nature, and is not determined in part or in whole by the grantor's leas- ing a portion of the property reserved.^ In a conveyance of a mill with a dam and a slip made for driv- ing logs, a reservation of the right to drive logs through the slip free of toll is a personal right not assignable.^ In a conveyance by a parent to his daughter, a reservation of a house upon the granted property gives the grantor no right to turn his daughter out, and to put a stranger in possession of the propel ty ; he has no such possessory right in it as is the subject of conveyance.' 550. A permanent easement in favor of the grantor's other 1 AVhite V. Crawford, 10 Mass. 183. v. Conner, G Cush. 132; Borst v. Empie, 2 Emerson v. Mooney, 50 N. II. 31. 5. .5 N. Y. 33. 3 Cave V. Crafts, .53 Cal. 135; Tucker ^ Cooncy v. Hays, 40 Vt. 478, 94 Am. V. Jones, 8 Mont. 225, 19 Pac. Rep. 571. Dec. 425. ♦ En^el r. Aver, 85 Me. 448, 27 Atl. " Wadsworth v. Smith, 11 Mc. 278, :>6 Rep. 352 ; Wiiithrop r. Fairbanks, 41 Me. Am. Doc. 525. 307 ; Smith v. Ladd, 41 Me. 314 ; Bowcn ' Fisher i;. Nelson, 8 Mo. App. 00. 457 j^ 550.1 EXCEPTIONS AND RESERVATIONS. land may be created without words of limitation. In a recent case in CiMiiiootiout, the orantors, in selling a right of way across their himl to a railroad company, reserved the right of crossing, atul provided tluit the company should lay the railroad track on a level with the giouiul of the grantor's wharf beyond the track. Tlie reservation was not made to the grantors and their heirs, and it was contended that the right to cross lasted only during the lives of tlie ^Trantors. The court declared this contention not well fouiuleil. and said : " If the deed had been silent as to the right to cross, the law would have given an adequate ' way of necessity ' in favor of the owners of the premises. In the absence of any relinquishment of such a way of necessity in the deed, it is hard to believe that the parties intended by an express reservation, made umler these circumstances, to give to the grantors or allow them to retain a less extensive right than the law would have given if notliing luul been said in the deed about the right to cross. Then, too, the right to cross was, in a certain sense, a right existing in the grantors at the date of the deed. It was a part of their full dominion over the strip about to be conveyed by the deed, and not a right to be in effect conferred upon them by the grantees. It was something which the 'reservation' in effect ' excepted' out of the operation of the grant. Hence it is quite reasonable to conclude that the stipulation as to the right of way was intended by both parties to give a right not temporary and personal, but permanent, and for the benefit not so much of the grantors as of the premises they continued to hold. In such cases we think the rule is well settled that a permanent easement in favor of the retained land may be made without words of limitation." ^ In another case, where a reservation was made of the right to draw water for the use of a mill owned by the grantor, it was contended that the agreement was only a license to the grantor to draw water for so long a time as he should own the mill. The court, however, said : " This claim is in conflict with all the facts of the case. The right to the water is reserved without limitation as to time. It was made for the benefit of the mill below, and manifestly was designed to be appurtenant to it. It would not only be beneficial so long as the grantor should own the mill, but would enhance its value to some extent when sold." ^ 1 Chappell V. New York, &c. R. Co. 62 - Randall v. Latham, 36 Conn. 48, Conn. 19.5, 203, 24 Atl. Rep. 997. .'53. 458 WHETHER A RESERVATION IS PERSONAL. [§ 551. In a deed of a mill upon a stream upon which the grantors had another mill, they reserved the right to use water and conve}' it from tlie dam " for the necessary accommodation and use of the old shop" which the grantor still owned in fee simple. The reservation was made without words of inheritance, but it was held that the grantors had an assignable interest in the privilege reserved. In determining what the parties intended by the reservation, the court said it was proper to take into consideration the condition of the property and the circumstances of the par- ties in relation thereto, and to inquire for what purpose the reser- vation was made. "It was 'for the necessary accommodation and use of the old shop.' Of this they were the owners in fee simple ; and can it be supposed that they meant to limit the use of the water, without which the establishment was of no value, to their own personal occupancy ? And can it be beheved that such was the intention of the parties to this deed ? The idea is opposed to every presumption and to all probability. Are we, then, prevented, by any rigid rule of construction, from giving effect to tiie intention of the parties? We know of none; and we think this part of the case entirely free from doubt." ^ 551. A reservation of a right in the nature of a servitude in the land granted, for the benefit of the grantor's other land, is not a bare license to the grantor himself while he may own the land, hut the right reserved is a permanent right for the benefit of the principal estate, whoever may be the owner. Such right is manifestly designed to be appurtenant to the grantor's estate, and to constitute a part of it.^ But a subsequent vendee of the party making the reservation can exercise no greater right than that reserved.^ A reservation of an easement is never presumed to be for the 1 Kennedy v. Scovil, 12 Conn. 317, 132; Cowdrey c. ('olburn, 7 Allen, 9, 13 ; 326. Whitney v. Uuiou Ky. Co. 1 1 Gray, 359 ; 2 Randall v. Latham, 36 Coun. 48; Smith v. ITi;j;l)ee, 12 Vt. 113; Fuller v. Chappell V. New York, &c. \\. Co. 62 Arms, 45 Vt. 400; Borst v. Empic, 5 N. Conn. 195,24 At). Hep. 997; Tinker v. Y. 33 ; Barrow v. Kichard, 8 I'aifre, 351, Forbes, 136 111. 221. 26 N. E. Hep. 503; 35 Am. Dec. 713 ; Rexford v. Marquis, 7 Shelby v. Chicago, &c. R. Co. 143 111. Lans. 249 ; Baker v. Mott, 78 Ilun, 141* 385, 32 N. E. Rep. 438 ; Mendell v. De- 28 N. Y. Siipp. 968 ; Ilerrick v. Marshall, lauo, 7 Met. 176; Dyer v. Sanford, 9 Met. 66 Me. 435 ; Karmuiler v. Krotz, 18 Iowa, 395, 43 Am. Dec. 399; Brown i-. This- 352. sell, 6 Cut^h. 254; Dennis v. Wilson, 107 •' Palfrey i;. Foster, 47 La. Ann. — , 17 Mass. 591 ; Bowen v. Conner, 6 Cush. So. Rep. 425. 459 >s ,")5'2.J EXCKIMIONS AND Kl^KUVA 1 lOiNS. porsoiuil uso of the grantor, if it can be fairly construed to be ap- purtenant to other hxnd of the grantor.^ Thus, where the owner of land conveyed it, excepting and reserving, without words of inheritance, a right of way extending from the liighway along the line of division between the land sold and the grantor's other land, it was held that the right was appurtenant to the grantor's other land. Mr. Justice Wells, delivering judgment, said : " If the nature of the right, as appurtenant or in gross, depended upon its duration or inheritable quality, it might be necessary to consider whether the clause in this deed is one of exception, carving the way out of the premises described in the deed, and retaining it in the grantor as a part of his former estate, or whether it created a new right in the land of the grantee by way of reservation or implied grant. But we do not think it is so dependent. Even if it were conceded that the clause in question is to be construed as one of reservation strictly, and that, for want of words of inher- itance, the right is limited to the life of the grantor, it does not follow that it is a mere personal right not assignable. Its char- acter must be determined by the purposes for which the way was intended to be used. Those purposes being ascertained from the terms of the deed, aided, if necessary, by the situation of the property and the surrounding circunistances,^ the deed is to be construed accordingly." ^ Where upon a division between tenants in common one grantor reserved a right of way over the land he conveyed for the benefit of the land he retained, the reservation created an easement which ran with the land.* 552. Thus, too, if the grantor reserves the right to the free use of light and air of the land conveyed for the benefit of his other land, the reservation will be regarded as appurtenant to the grantor's land, and the benefit of it will pass with the land to his heirs and assigns, though they are not mentioned in the reser- vation. "The tendency of the adjudications on this subject is properly to disregard technical distinction between reservation and exception, and construe the language used so as to effectuate the intention of the parties. A covenant or stipulation inserted in a deed poll binds the grantee, his heirs and assigns, where such 'Smith r. ]'ortrr, 10 Ciray, G6; Dennis 3 pennis r. Wilson, 107 Mass. 591, r. Wilson, 107 Mass. ."j'Jl. 593. 2 Green v. Putnam, 8 Cush. 21. ^ :Menddl v. Delano, 7 Met. 176. 460 WHETHER A RESERVATION IS PERSONAL. [§ 553. stipulation relates to the premises conveyed. The easement in such case may be acquired by a clause of reservation." ^ 553. In a reservation of a right to take profit out of the soil, no words of perpetuity are necessary to create an estate in fee simple in such right.^ Thus a reservation of the right to maintain a boom on Penobscot River, '■'• on the flats between hipfh and low water marks of said river, along the premises hereby conveyed, either to use myself or to let or sell to other persons," was held to be a right of profit in Uind which would pass to the grantor's heirs upon his death, and miglit be assigned by them.^ In a conveyance of land to a railroad company for the purposes of the road, the grantor reserved " the right to use any portion of the land not required by the said company, he yielding possession of the same whenever the land shall be needed by the company." It was held that the failure of the company to occupy any part of the land for forty years did not affect its rights in the land. The right of the grantor passed by his will to his devisee.* In a deed of a right of way to a railroad company, a provision that " the said grantor and his family shall have and enjoy the right of free passage " in its cars over the road, '' so long as the land and appurtenances hereinbefore described shall continue to 1 Hagerty v. Lee, 54 N. J. L. 580, 583, 25 Atl. Rep. 319, per Van Syckel, J., cit- ing Finley v. Simpson, 22 N. J. L. 311 ; Cooper V. Louanstein, 37 N. J. Eq. 284 ; Newhoff V. Mayo, 48 N. J. Eq. 619, 23 Atl. Rep. 265; Rosenkrans i' Snover, 19 N. .J. Eq. 420. And the gran tee in a deed, and tho>;i' clain)in<; under him, cannot deny the binding authority of a reservation in a deed. Sheppard v. Hunt, 4 N. J. Eq. 277 ; Fitzgerald i-. Faunce, 46 N. J. L. 536, 598. Vice-Chancellor Van Fleet, in Cou- dert V. Sayre, 46 N. J. i:q. 386, 19 Atl. Rep. 190, expresses in substance this view of tiie rule : When by the construction of a grant it appears tiiatit was the intention of the parties to create or reserve a right in the nature of a servitude in the hind granted, for the benefit of other Innd owned by the grantor, no matter in what form such intention may be expressed, such right, if not against public jiolicy, wid be held to be a]>]MirteiiHiit to the bind of the grantor, and binding on that con- veyed to the grantee, and the right and burden thus created and imposed will jjass, with the lands, to all subsequent grantees. 2 Engel V. Ayer, 85 Me. 448, 27 Atl. Rep. 352. 3 Kngel 1-. Ayer, 85 Me. 448, 27 Atl. Rep. 352. The right reserved was " not a mere easement properly so called, but a profitable interest in the land itself which pas-sed to his [the grantor's] chil- dren by the devise, and was by them granted to the defendant. And it is a satisfaction to observe that this conclu- sion is not only in harmony with the authorities, but it effectuates the inten- tion of the parties clearly manifested by the language of the exception exam- ined in the light of the attending facts." Per \Vhitehou.';. J. * King I'. Norfolk & W. R. Co. 90 Va. 210, 17 S. E. Rep. 868. 4G1 §§ 5i')4, 555.] EXCEPTIONS AND RESERVATIONS. be used " for railroad purposes under its charter, does not entitle a descendant of the grantor who is not a member of tlie grantor's household to a free pass over the road as a member of his family. The words, "so long as the land . . . shall continue to be used as a railroad . . . under the charter of said corporation," do not imply perpetual succession. They are words of limitation of the grant, and not words extending the meaning of the word ' family.' " ' 554. In those States in which words of inheritance are not necessary to a transfer in fee, such words are not necessary in a reservation in order to give the grantor an assignable in- terest. Thus, a reservation of a profit or interest in the soil, profit a prendre in alieno solo, being assignable at common law with words of inheritance, is assignable without such words in such States. "There is certainly no I'eason why an absolute estate should pass without words of inheritance, and the reservation of a right of profit a prendre should not." - 555. When a reservation, so called, is in fact an exception, no words of inheritance are necessary in order that the rights reserved or excepted may go to the heirs or assigns of the grantor.^ A reservation of a right of way over the granted premises in suitable places, to other lands of the grantor particularly men- tioned, confers on the grantor the benefit of an exception in favor of the grantor, his heirs and assigns, as the occupants of such other lands, the privilege reserved being appurtenant to such lands.4 A land-owner conveyed to a railroad company a strip of land already appropriated by it for its location, " reserving the pass- way at grade over said lailroad where now made." Tiie strip divided the land of such owner into tracts containing four and thirty-three acres respectively. The former adjoined ;i highwa}', 1 Dodge V. Boston & P. R. Co. 154 Iron Co. 107 Mass. 290; Emerson v. Mass. 299, 28 N. E. Rep. 243. Mooney , 50 N. H. 3 1 5 ; Whitaker v. Brown, 2 Painter v. Pasadena, &c. Co. 91 Cal. 46 Pa. tSt. 197; Keeler v. Wood, 30 Vt. "4, 82, 27 Pac. Kep. 5.39. 242 ; Painter v. Pasadena, &c. Co. 91 3 Enjrel V. Ayer, 85 Me. 448. 27 Atl. Cal. 74, 27 Pac. Rep. 539 ; Chappell v. Rep. 352; Randall «. Randall, 59 Me. New York, &c. R. Co. 62 Conn. 195,203, 338; Winthrop v. Fairbanks, 41 Me. 307; 24 Atl. Rep. 997. Smith V. Ladd, 41 Me. 314; Mendell v. ^ Winthrop v. Fairbanks. 41 Me. 307. Delano, 7 Met. 176; Brown y. Conner, 6 See, however, Smith i;. Higbee, 12 Vt. Cush. 132 ; White v. Crawford, 10 Mass. 113. 183; Swxkbridge Iron Co. v. Hudson 462 WHETHER A EESERVATION IS PERSONAL, [§§ 556, 557. but the only lawful access to the other was by the passway over the smaller tract and the railroad, which passway was in use before the construction of the railroad, and continued to be used without objection for nearly forty years thereafter. It was held that it was the intention of the parties to annex the use of the passway as a perpetual right to the larger tract.^ 55G. When the purpose of an exception or reservation is specified, the use of property or right is limited to that purpose. Thus, under a clause in a deed '' excepting and reserving one half acre of land, being the old family graveyard of the grantor, to- gether with a right of way " to the same, the grantor is restricted to the use of the graveyard for a place of burial of the grantor's family only, and he cannot license others to use the right of way.^ A reservation of a lot of land, to be used as a graveyard for the grantor and his family, is a privilege personal to the grantor and his family which cannot be assigned to a stranger.^ Where a railroad company reserved a strip of land to be used for a right of way or other railroad purposes, in case the line of said railroad or any of its branches should be located on or over the granted land, another railroad company is not entitled to the benefit of such reservation for a right of way for a branch road, though in fact such branch road is constructed by the company that granted the land and reserved the right of way, this com- pany not being authorized by its charter to construct such branch.'* 557. When a determinable fee. — An exception of a saw- mill, with land enough about it to carry on the lumbering busi- ness, and a right of way to the same, so long as the grantor "occupies said privilege with mills," constitutes a determinable or qualified fee which can be assigned. The duration of the estate is not limited to the personal occupancy of the mill by the 1 White V. New York & X. E. 11. Co. (Iowa), 56 N. W. Rep 515; Cliai)pell v. 156 Mass. 181, 30 N. E. Rep. 612. Per New York, &c. R. Co. 62 Conn. 195, 203, Morton, J. : "As already stated, tlie only 24 Atl. Rep. 997. reasonable construction in the present - Brown r. Anderson, 88 Ky. 577, 11 case would seem to be that it was the in- >S. W. Rep. 607. See Herbert v. Pue, 72 tention of the parties to annex the ri;;l)t Md. 307, 20 Atl. Rep. 182. of passing to the larger tract as a i)erpet- '' Pearson v. Ilartman, 100 Pa. St. 84. ual casement, and, the language of tlie ' Biles v. Tacoma, &c. R. Co. 5 Wash, deed being sufficient for that purpose, it 509, 32 Pac. Rep. 211. And see Duustan follows that the passngcway is to be so v. Northern Pac. R. Co. 2 N. D. 46, 49 N. regarded." See, also, Bonson v. Jones W. Rej). 426. 463 §§ 0.38, 550. J EXCEl'TIONS AND RESERVATIONS. grantor, hut is limited to the existence of the inilL The test of the liniitatiim is the jjurpose for Avliieh the estate may be occupied. ^ A ri'scrvation of a cider-mill, "so long as the same shall stand" on the land, gives a title in the building and tlu; land under it so long as the building sliall stand on the land, though it be used for a dilferent purpose.'-^ 558. A reservation for a limited time of an easement, such as tlie right of mining ores, of (quarrying marble, or of taking- stone from the land, is not a mere personal privilege to the grantor, but a right and interest in the use of the land for the time designated, which he may assign to another.'^ A reserva- tion of the use of a quarry until the expiration of a lease of the same, which the grantor had previously made for the term of ten years, is a reservation till the end of the ten years, although the lease be cancelled with the consent of the parties to it within that time. The reservation inures to the use of the grantor as well ;is his lessee.* 559. A reservation of the right to cut and remove trees within a definite time, is only a reservation of the right to enter and cut the trees within such time, and not an exception of the trees out of the grant.^ In cases where the trees themselves are reserved, the property in them remains in the grantor, with the right to so much of the soil as is necessary' to sustain them during the time within which the grantor may enter upon the land and remove them.*^ The reservation is an exception, and the stipulation that the trees shall be cut and removed within a given time does not make the exception conditional on such removal. The grantor owning the trees may enter the grantee's land and remove them after the stipulated time has expired ; but 1 Moiilton V. Trafton, 64 Me. 218; 6 Goodwin v. Hubbard, 47 Me. 59.5; Farnsworth i;. Perry, 83 Me. 447, 22 Atl. Howard v. Lincoln, 13 Me. 122; Knotts Rep 373, where the reservation was of a v. Hydrick, 12 Rich. 314. " A reserva- fltore upon the land granted, " with the tion of ' all the standing wood ' ujmn a privile;:e of remaining: as long as the store lot, to be removed at any time within three stands. years, includes trees suitable for timber 2 Esty V. Currier, 98 Mass. .500. as well as trees suitable for fuel ; and if 2 Munn V. Stone, 4 Cush. 146 ; Farnum there is nothing in the deed to show that V. Piatt, 8 Pick. ,3.39, 19 Am. Dec. 330. the term 'standing wood' is used in a Farnum v. Piatt, 8 Pick. .339, 19 Am. more limited sense, parol evidence is not Uec. 330. admissible to restrict the meaning of " Ricli v. Zeil.sdorff, 22 Wis. .544, 99 these words." Stroul v. Harper, 72 Me. Am. Dec. 81. 270 464 WHETHER A RESERVATION IS PERSONAL. [§ 660. he will be liable for damages in breaking and entering, though such damages would not include the value of the trees, for these are already the property of the grantor. ^ The grantor is liable in damages for leaving the timber on the land longer than the stipulated time, and for all damages done to the grantee's land by its removal after such period ; but the grantee cannot claim the timber already cut not then removed, or the value of it as part of the damages. The timber, having been severed from the land, became personal proj)erty, and the title was fully vested in the grantor.^ When wood and timber are reserved without fixing any definite time for their removal, a reasonable time is implied.'^ No interest remains in the grantor in the land or in the trees which are parcel of it after the time limited in the reservation, in case the property in the trees is reserved conditionally upon their removal within a limited period, or within a reasonable time.* If a definite period, say ten years, is reached, during "which the trees are allowed to stand and grow without payment, and further time beyond such period is allowed on the payment of a stipulated yearly rent, the reservation is lost by the grantor's failure to elect to have the trees stand and grow for such further time by making payment or offer of payment of the rent named. The reservation will expire by its own limitation with the ten years, nothing having been done to keep it alive beyond that time.^ 560. A reservation may be released by the grantor's subse- quent deed which grants and warrants the jDroperty without reservation or exception.^ If the reservation be of an interest in the land, such as an easement in it, it cannot be extinguished or 1 Irons V. Webb, 41 N. J. L. 203,32 Knott d. Hydrick, 12 Rich. 314. Sec Put- Am. Rep. 193 ; Plumer v. Prescott, 43 N. nam v. Tuttle, 10 Gray, 48. H. 277; Iloit v. Stratton Mills, 54 N. H. * Plumer y. Prescott, 43 N. II. 277; 109. See, however, Knott v. Hydrick, 12 Iloit v. Stratton Mills, 54 N. II. 109, 20 Rich. 314. Am. Rep. 119; Judevine «;. Goodrich, 35 - Irons i;. Webb, 41 N. .1. L. 203, 32 Vt. 19. And see Boisaubin v. Heed, 2 Am. Rep. 193; Plumer v. Prescott, 43 N. Keyes, 323, 1 Abb. Dec. 161 ; Mclntyre H. 277. V. Rarnard, 1 Saiidf. Ch. 52 ; Warren v. 3 Hill );. Hill, 113 Mass. 103, 18 Am. Leland, 2 Rarb. 013,622; Pease v. Gib- Rep. 45.5; Gilmore v. Wilbur, 12 Pick, son, 6 Me. 81. 120, 22 Am. Dec. 410; Hoit v. Stratton ^ Perkins v. Stockweil, 131 Mass. 529. Mills, 54 N. H. 109, 20^ Am. Rep. 119 ; « Clifton v. .lackson Iron Co. 74 Mich. 183, 41 N. W. Rep. S'.U. VOL. I. 465 § 560.] EXCKPTIONS AND RESERVATIONS. renounced by ii parol agreement, lint an abandonment of an easonient reserved may be shown by parol evidence. A license by the owner of the dominant estate to the owner of the servient estate, to obstruct an easement, is not revocable after it is exe- cuted, and may operate as an abandonment of the easement to the extent of such license.^ 1 Dyer v. Sanford, 9 Met. 395, 43 Am. Dec. 399. 466 CHAPTER XX. THE HABENDUM, OR THE ESTATES CREATED. I. The office and effect of the haben- dum chuise, 561-570. II. The naming of the grantee in the habendum clause, 571-574. HI. The word " heirs " essential at com- raon hvw to create an estate in fee, 575-600. IV. The rule in Shelley's Case, 601-610. V. Estates tail, 611-618. I. The Office and Effect of the Habendum Clause. 561. An estate in fee is an estate of inheritance. A fee simple is the greatest interest and the most absolute in the rights conferred that one can have in real property. The word " fee " means inheritance, and, as Lord Coke says, "'simple' is added, for that it is descendible to the heirs generally, that is, simply, without restraint to the heirs of the body, or the like." ^ The word " absolute " added does not impart anything to the legal effect of the term " fee" or "fee simple."^ 562, The office of the habendum is to define the grantee's estate. " It is to set down again the name of the grantee, the estate that is to be made and limited, or the time that the grantee shall have in the thing granted or demised, and to what use." ^ The essential words of the clause are " to have and to hold." The latter word originally served to indicate that the property was to be held of a superior lord. The nature and duration of the estate are sometimes defined in the " premises," by which term are designated all those parts of a deed which go before the ^ Co. Litt. 111. Littleton says : "Ten- i. e. pnvdium hetie/iciarium, and legally ant in fee simple is he which hath lands signifieth inheritance, as our author him- or tenements to hold to him and his heirs self exj)oundeth it. And ' simple ' is added forever. And it is called in Latin, yeorf!<;rt for that it is descendible to his heirs geii- simplex, ior feodum is the same that in- erally, that is, simply, without restraint to heritance is, and simplex is as much as to the heirs of his body, or the like." Co. say lawful or pure. And so /iodum sim- Litt. .345 «. plex signifies a lawful or pure inherit- - Clark v. Baker. 14 Cal. 612, 631, pel ance." Coke comment.s thereupon as fol- Field, C. J. lows: " ' Fee ' cometli of the French yiV/', * Shep. Touch. 74. 467 § ,'}Go.] THE HABENDUM, OR THE ESTATKS CREATED. liabeiuluin. In naming the grantee in the granting clause, if the words ''and his heirs " are atlded, the grantee takes an estate in fee simple, though the habendum clause be wholly omitted.^ It is not necessary, therefore, that there should be any habendum clause. " Originally, under the feudal system, the office of the habeutluni and tenendum clauses was to define the quantity of interest or the estate wiiich the grantee is to have in the property granted, and the tenui-e upon or under which it was to be held. Since the practical abolition of feudal tenures, the only object of the clause is to state the character of the grantee's estate. But although the words of limitation usually appear in the habendum as an independent clause of the deed, it is not necessary that they should, if they appear in some other part, as in the premises." ^ If the fi'ranting; clause is either silent or ambiq;uous as to the estate intended to be granted, the habendum must be resorted to in order to ascertain the nature and extent of such estate. ^ A deed which in the granting clause is to a woman " and her children and assigns," habendum to her "and her heirs and as- signs," conveys to her an estate in fee.'* If the habendum be omitted, the grantee takes the estate limited in the premises. If in the premises the land is granted to one without words of inheritance, and there is no habendum, the grantee takes an estate for life. If the grant in the premises is to one and his heirs, he takes an estate in fee without the aid of any habendum.^ 663. The habendum may explain, enlarge, or qualify, but cannot contradict or defeat, the estate granted by the premises.*' 1 Shep. Touch. 75 ; Buckler's Case, 2 ^ Shep. Touch. 75 ; Major r. Bukley, Coke, 55 6; Goodtitle v. Gibbs, 5 B. & C. 51 Mo. 227 ; Kenworthy v. TuHis, 3 Ind. 717, 8 D. & Ry. .502. 96; Fulhright v. Yoder, 113 N. C. 456, 2 Karchner v. Hoy, 151 Pa. St. 383, 390, 18 S. E. Rep. 713. 25 Atl. Rep. 20, per Sterrett, J. And see •> Co. Litt. 299 a ; Tyler v. Moore, 42 Major V. Bukhy, 51 Mo. 227 ; Mont- Pa. St. 374, 386 ; Walters v. Bredin, 70 gomery v. Sturdivant, 41 Cal. 290. Pa. St. 235; Warn v. Brown, 102 Pa. St. 8 Mitchell v. Wilson, 3 Cranch C. C. 347; Moss v. Sheldon, 3 Watts & S. 160; 242 ; Havens v. Seashore Land Co. 47 Rincs v. Mansfield, 96 Mo. 394, 9 S. W. N. J. Eq. .365, 371, 20 Atl. Rep. 497; Rep. 798; Jamaica Pond Aqueduct Co. Staffordville Gravel Co. u. Newell, 53 N. r. Chandler, 9 Allen, 159; Breed v. J. L. 412, 41.5, 19 Atl. Rep. 209; Riilgin Osborne, 113 Mass. 318; Chaffee v. V. Love, 72 111. 553 ; Bodine v. Arthur, nod^e, 2 Root, 205 ; Thompson v. Carl, 91 Ky. 53, 14 S. W. Rep. 904. 51 Vt. 408. * Rines v. Mansfield, 96 Mo. 394, 9 S. W. Rep. 798. 468 THE OFFICE AND EFFECT OF THE HABENDUM CLAUSE. [§ 564. The premises of a deed are often expressed in general terms which admit of explanations which are usually found in the habendum. The premises frequently do not describe, or profess to describe, the quantum or extent of the estate granted or in- tended to be granted.^ If no words of inheritance are used in the premises, tlie grantee by the premises takes by implication only a life estate at most. The habendum may then by express limitation define the estate granted as an estate for life in fee, or in fee tail, and the estate so expressly defined necessarily excludes the uncertain implication from the premises.^ Thus, where a deed grants certain lands to the grantee without defining the interest intended to be conveyed, habendum to the use of the grantee "during the term of her natural life," even under a statute which makes every conveyance a fee, when no contrary intention appears by the use of express terms, or is necessarily implied, the grantee takes only a life estate. " As, then, the premises do not in express terms convey a fee, and as, in the absence of words of inheritance, an implication that a fee was designed to be conveyed can only arise where the intention to convey a less estate is not disclosed, and as the intention to convey a less estate than a fee is most unequivocally expressed, it follows, as a matter of course, that there is no repugnancy be- tween the granting clause and the habendum, and that the haben- dum must be given effect, because it is the only part of the deed which purports to describe the quantum of estate conveyed." ^ 564. If the premises express an estate in fee, this cannot be wholly annulled by anything in the habendum. The ha- bendum may confirm, qualify, or limit the estate or fee declared in the premises ; ^ but so far as the habendum is inconsistent witli tlie declaration in the premises it must be rejected.^ It is largely from this distinction that the rule is drawn that, in case the premises and the habendum of a deed are irreconcihible, 1 Doren v. Gilluin, 136 Ind. 134, 35 N. ^ Kelly v. Hill (Mil.), 25 All. Ke]). 919, E. Kej). 1101; Edwards (•. Bcall, 75 Ind. per McSherry, J. See, also, Winter v. 401 ; Carson v. McCaslin, 00 Ind. 334. Gorsuch, 51 Md. 180, 183 ; Farquharson - Berry v. Billings, 44 Me. 410, 423, 69 v. Kichelberjrer, 15 Md. 63, 72. Am. Dec. 107; Ri<,'-iin v. Love, 72 III. •* Breed c. O.«l.ornc, 113 Mass. 318. 553 ; Mont-omerv r. Sturdivant, 41 Cal. '■ Bahhvin'.s Case, 2 Coke Kep. 23 ; Earl 290 ; Bodinc v. Arthur, 91 Ky. 53, 14 S. of Hntland's Ca.se, 8 Rep. 55 a; Winter v. W. Rep. 904 ; Bean v. Kenmuir, 86 Mo. Gorsueh, 51 Md. 180 ; Riggin v. Love, 72 666 111- •^■>^> I'cr SchoKield, J. 469 § i>G^.] THE HABENDUM, OR THE ESTATES CHEATED. the piviuist'S will control ; as where in the premises the grant is to one and his ln-irs, and the habendum is to him for life.' Other reasons, however, have been assigned for the ride that the premises shall control when repngnant to the habendum. "This doctrine proceeds upon the principle that, where there are two clauses in a deed repugnant to each other, the first shall pre- vail;- and every deed is expounded most strongly against the giantor, and most for the advantage of the grantee; and there- fore the grantee shall take by the premises, if that be most bene- ficial for him, and not by the habendum ; and the grantor shall not be allowed, by any subsequent part of the deed, to contradict or retract the gift n)ade in the premises."^ The latter reason, namely, that deeds shall be construed most strongly against the grantor, is assigned in several American cases.'* 565. A habendum clause which is repugnant to the estate already vested by the deed is void.^ It does not matter whether the repugnancy be in respect to the estate conveyed, the grantee who is to take, or the quantit}' of the thing conveyed. 1 Goodtitle v. Gibbs, 5 B. & C. 709 ; Faivre v. Daley, 93 Cal. 664, 29 Pac. Rep. 256; Karchner v. Hoy, 151 Pa. St. 383, 25 Atl. Rep. 20; Moore v. Waco, 85 Tex. 206, 20 S. W. Rep. 61 ; Bodine v. Arthur, '^l Ky. 53, 14 S. W. Rep. 904, where the court say: "It is uii.doiibtedly true that in case of repugnancy betweeu ihe two, aud it cannot be determined from the whole in'^trument and attending circum- stances wiih reasonable certainty that the grantor intended that the habendum should control, the conveyancing clause must in that case control, for the reason that words of conveyance are necessary to the passage of the title, and the ha- bendum is not ordinarily an indispensable part of a deed." 2 Leicester y. Biggs, 2 Taunt. 113. In Barnett v. Barnett (Cal.), 37 Pac. Rep. !049, it is stated that this rule is only an- other form of the rule of construction given in Civ. Code, § 1070, that, " if sev- eral parts of a grant are absolutely irre- concilable, the former parr ]irevails." ^ Baldwin's Cise, 2 Coke Rep. 23, Thomas' ed., note. 470 * Budd V. Brooke, 3 Gill, 198; Winter V. Gorsuch, 51 Md. 180, 185. 6 Co. Litt. 299a; Goodtitle v. Gibbs, 5 Barn. & C. 709 ; Smith v. Smith, 71 Mich. 633, 40 N. W. Rep. 21 ; Havens v. Sea- shore Land Co. 47 N. J. Eq. 365, 20 Atl. Rep. 497 ; Henderson v. Mack, 82 Ky. 379 ; Ratcliffe v. Marrs, 87 Ky. 26, 7 S. W. Rep. 395, 8 S. W. Rep. 876; Clay V. Chenault (Ky.), 10 S. W. Rep. 650; Bodine v. Arthur, 91 Ky. .53, 14 S. W. Rep. 904 ; Hafner v. Irwin, 4 Dev. & B. 433, 435, 34 Am. Dec. 390 ; Robinson v. Payne, 58 Miss. 690; Huntington v. Lyman, 138 Mass. 205; Pynchon v. Stearns, 11 Met. 312, 316, 45 Am. Dec. 210; Winter v. Gorsuch, 51 Md. 180; Farquharson v. Eichelberger, 15 Md. 63; Budd v. Brooke, 3 Gill, 108, 235, 43 Am Dec. 321 ; Fore- man V. Presbyterian Asso. (Md.) 30 Atl. Rep. 1114; Nightingale v. Hidden, 7 R. L 115; Flagg v. Fames, 40 Vt. 16, 94 Am. Dec. 3G3; Warn v. Brown, 102 Pa. St. 347 ; Tyler v. Moore, 42 Pa. St. 374, 387, per Strong, J. ; Wager v. Wager, 1 Serg. & R. 374 ; Green Bay Canal Co. v. Hewett, 55 Wis. 105, 12 N. W. Rep. 382. THE OFFICE AND EFFECT OF THE HABENDUM CLAUSE. [§ 566. The habendum can affect the grant only when it can be construed as consistent with the premises. It cannot frustrate the grant ah-eady made in the premises, nor abridge or lessen such grant. Thus, where a grant was made by a father to his son " and to his heirs for the use, benefit, and support of himself and his family, and the proper education of his children," but the habendum was " for the period of his natural life, and after his death to his chil- dren in fee simple, for the purposes and uses above set forth," with a covenant that the grantee should use the property for such purposes, and not convey it or any interest in it during the life- time of any of his children, or of any of his brothers or sisters, it was held, that by the premises a fee vested in the grantee, and the habendum, being repugnant to the granting clause, must be I'ejected.^ 566. Effect will be given to both the granting clause and the habendum, if possible to do so by fair construction, where the interest intended to be conveyed is defined in both clauses. If the habendum is to the grantee for the life of another, after a grant to him and his heirs, there is no repugnancy. The haben- dum is in such case consistent with the grant, since the word "heirs" will still have effect ; ^ "for when an estate is given to one and his heirs for the life of another, the heir may take and hold after tlie death of his ancestor as a special occupant. The rule of construction in such cases is held to be that, when the estate is given in the premises to one and his heirs generally, habendum to him and otlier heirs, the habendum may be used to explain the premises, by showing what heirs are meant by the grantor, and will not be repugnant ; for such explanation is held not to retract the gift in the premises, because tiie word ' heirs ' has still its operation, and by construction is more conformable to the will and intentions of tlie donor." ^ Thus an estate tail given in the premises is not enlarged to an estate in fee simple by an habendum to the grantee and his heirs; for it is easy and congruous to suppose tiiat the word " iieirs " in tlie liaben.hun m'-aiis tlie same and was intended t.) mean the same, as the heirs designated in the premises.'* This is still more 1 Smith V. Smith. "1 Mich. 633,40 N. ■' Kowland v. Rowland, 93 N. C. 214, W. Hop. 21. And see Kobinsou y. Psiyne, 220, i>(t Aslie, J. 58 Mi.« 690 * Co. Utt. 21 a; Thompson r. Carl, 51 ■' Slifp. Touch. 200. Vt. 408 ; Corbin i-. Healy. 20 Pick. 514. 471 § 567.] THE HABENDUM, OR THE ESTATES CHEATED. clear, where the habeinhun is to ''his heirs as aforesaid." And so, a<^ain, a j^raiit to one and his heirs may be reduced to an estate tail bv a limitation in the habendum to the lieirs of his body.^ The habendum does not in such case contradict the premises, but only defines what heirs of the grantee were intended by the grant. There is no repugnancy between the premises and the haben- dum where by the ft)rmer there is a grant in fee, and by the lat- ter tlie fee is restricted to a base or determinable fee ; for the estate is still a fee. It may continue in the grantee and his heirs forever, but may be terminated by the act or event expressed in the limitation. In this respect it is similar to a grant npon con- dition.2 567. If the premises and the habendum cannot be recon- ciled by construction, that clause will control which most precisely defines the estate intended to be conveyed, if this is in harmony with the general intention as gathered from the whole instrument.^ Thus, where the granting clause of a deed of settle- ment by a husband on his wife gave her the fee, but the haben- dum provided that she should hold the land while she remained his widow, and that at her decease it should revert to the grantor and his heirs, it was held that the habendum controlled the con- struction of the deed. The court regarded the intention as ex- pressed and as indicated by the situation of the grantor, who was an old man, providing for a young wife and one child, an infant at the time, and having no other property or estate.* The habendum, when not clearly contradictor}'- to the gr-anting words, is to be resorted to equally with the other parts of the deed in order to arrive at the grantor's intention.'' A grantor conveyed land to his daughter and her husband, " their heirs and assigns," by a deed containing the following provision in the premises after the description : " It is expressly understood by all parties hereto that, if the said husband and wife 1 Altham's Case, 8 Coke Rep. 150 b, Atl. Rep. 1065. Per Paxson, C. J. : "It 154 6; Tyler I'. Moore, 42 Pa. St. 374, 386, would be a violent presumption, too vio- per Strong, J. lent to be entertained for a moment, to - .Jamaica Pond Aqueduct Co. r. Chand- suppose that he intended this estate to ler, 9 Allen, 159, 168, per Bigelow, C. .J. go to a second husband of his wife, after 3 Karchner i;. Hoy, 151 Pa. St. 383, 25 her death, to the exclusion of his own Atl. Rep. 20. child." * Whitby V. Duffv, 135 Pa. St. G20, 19 '" Henderson v. Mack, 82 Ky. 379. 472 THE OFFICE AND EFFECT OF THE HABENDUM CLAUSE. [§ 567. should have a child or children of their two bodies begotten and born, then the land herein convej-ed shall vest in the said hus- band and wife and their heirs forever. But should this event not happen, then the said husband and wife, or the survivoi- of either of them, shall have and enjoy a life estate in the said land." It was provided that if no issue were born the land should be sold, and the jn'oeeeds divided among certain persons mentioned. The habendum clause was as follows: "To have and to hold the said lands, hereditaments, and premises hereby granted or mentioned, and intended so to be, with the appurtenances, unto the said pai'- ties of the se< oud part, their heirs and assigns, to and for the only proper use and behoof of the said parties of the second pai't, their hei'.s and assigns forever." The wife died before her hus- band, never having had any child or children. It was held that the husband took a life estate only in the land. The court said : " We think the quantum of interest intended to be conveyed is clearly and expressly defined in the premises of the deed. If the habendum were entirely eliminated from the instrument, it would still be an undoubtedly good and valid conveyance of the estate intended to be granted. Whether we regard the special provision for enlarging the estate into a fee, in the event of the grantees having 'a child or children of their two bodies begotten and born,' as a condition precedent to such enlargement or not, the result is the same. Nor does it make any difference that the pro- vision referred to is separated from other clauses or phrases relat- ing to the quantum of interest. . . . The interest granted is so fully, circumstantially, and precisely defined and limited in the special clause referred to, that there can be no mistake, in that regard, as to the expressly declared understanding and intention of the parties to the deed; and there appears to be no good rea- son why that intention should not prevail,' ^ If tlie estate is briefly defined in the premises and more specifi- cally in the habendum, "^the latter will have a controlling effect, for it is the legitimate office of this clause to enlarge and fully define thc^ estate described in less specific terms in the preinises.2 A recital in the jm-miscs of a deed, that the grantors -convey 1 Karohn.-r ,-. IIov. 151 Pa. St. 383, r. TaU.m, SI Ala. 388.1 So. Rep. 195 ; 389, 391 , per SterrCt, J Ki"-" '■• M--fi«''l- «*' ^'"- ^'"'^ ^- Z' 2 Karclin.-r v. Hoy, 151 Pa. St. 383, 390, Hep. 798 ; Green v. Sutton, 50 Mo. 186. 25 All. Ri'p. 20, per Sterrctt, J. ; Tatum 192. 473 THE HABENDUM, OR THE ESTAl'ES CREATED. it " the huid to persons named, is not totally repugnant lenduni clause which piovides that they are to hold ^ their natural lives, and then to descend to another." The use of the word " descend " does not necessarily show that the first takers were to take an estate in fee.' 568. The inclination of many courts at the present day is to regard the wliole instrument, without reference to formal divisions. The deed is so construed, if possible, as to give effect to all its provisions, and thus to elftctuate the intent of the par- ties. When an instrument is informal, the interest transferred by it depends not so much upon the words and phrases it contains as upon the intention of the parties as indicated by the whole instrument.'-^ This view is expressed by the Supreme Court of California in a recent case : '■^ " The intention of the parties to the grant is to be gathered from the instrument itself, and deter- mined by a proper construction of the language used therein ; but, for the purpose of ascertaining this intention, the entire instrument, the habendum as well as the premises, is to be con- sidered ; and, if it appear from such consideration that the grantor intended by the habendum clause to restrict or limit or enlarge the estate named in the granting clause, the habendum will prevail over the granting clause." Where a husband conveyed land to his wife "and her heirs and assigns forever," but the habendum limited the conveyance to her separate use, " with power to sell, and, by deed made and executed jointly with her husband, convey the land and invest 1 Doren r. Gillum, 136 Ind. 134, 35 N. E. Kep. 1101. - California : Faivre v. Daley, 93 Cal. 664, 2'J Pi\f. Kep. 256. Connecticut: liariliolDmew v. Muzzy, 61 Coun. 387, 23 Atl. Hep. 604; Bryan ;-. Bradley, 16 Conn. 474. Illinois: Mittel v. Karl, 133 III. 65, 24 N. E. Kep. 5.53 ; Ki-giii r. Love, 72 111. 5.53 ; P( o\ /;. Blakie, 53 111. 495. Indiana: CarsDii v. McCaslin, 60 Ind. 334, 337 ; Edwards v. Beali, 75 Ind. 401. Kentucky: Henderson z;. Mack, 82 Ky. 379. Maine: IligKin.s v. Wasgatt, 34 Me. 305. Massachusetts: Bridge v. Wellington, 1 Mass. 219, 229; Breed v. Osborne, 113 Mass. 318. Minnesota: Grueber v. Liudenmeier, 42 Minn. 99, 43 474 N. W. Rep. 964. Oregon : Beebe v. Mc- Kenzie, 19 Oreg. 296, 24 Pac. Rep. 236. Pennsylvania : Ogden v. Brown, 33 Pa. St. 247 ; Lemon r. Graham, 131 Pa. St. 447, 453, 19 Atl. Kep. 48; Dreisliaeh v. Serfass, 126 Pa. St. 32; Tyler v. Moore, 42 Pa St. 374, 387; Wager v. Wager, 1 S. & R. 374. Tennessee : Hanks v. Fol- soin, 11 Lea, 555, 560; Beeclier r. Hicks, 7 Lea, 207, 212; Fogarty v. Stoek, 86 'I'enn. 610, 8 S. W. Rep. 846. Texas: Hancock v. Butler, 21 Tex. 804. 3 Bavnett v. Barnett, 104 Cal. 298. 300, 37 Pac. Rep. 1049. And sec Ratcliffe v. Marrs, 87 Ky. 26, 7 S. W. Rep. 395, 8 S. W. Rep. 876 ; Bodine i-. Arthur, 91 Ky. 53, 14 S. W. Rep. 904. THE OFFICE AND EFFECT uF THE HABENDUM CLAUSE. [§§ 569, 570. the proceeds in other property, to be held " in the same manner, and also provided that if the husband should survive the land should revert to him in fee simple, it was held that the habendum, though repugnant to the estate granted in the premises, should be given controlling effect, as being in accord with the intention of the grantor as gathered from the entire instrument.^ This rule of construction does not, however, demand tliat all parts of the deed shall be treated as of equal weight in determin- ing the effect of the instrument. ^ 569. In Kentucky it has been declared that the habendum controls the granting clause when these clauses are repug- nant, since the statute declaring words of inheritance unneces- sary. Although by the granting clause a conveyance in fee simple is implied, but the habendum is repugnant to such an inference, the habendum will be given controlling effect. Thus, where a f;ither, " for and in consideration of natural affection" for his daughter and son, conveyed certain land, habendum to them and their children forever, there being nothing in the deed indi- cating that the gi'antor used the word " children " in the sense of *' heirs," it was held that, as the habendum controls the granting clause when they are repugnant, and as the statutory provision, that every estate created by deed " without words of inheritance " shall be deemed a fee simple, applies only where a different pur- pose does not appear " by express words or necessary inference," the daughter and son took only a life estate, remainder to tlieir children.^ It has also been said tliat the habendum sliould control because it is the last expression of the grantoi-.'^ 570. An absolute conveyance in fee is not defeated or qual- ified by a subsequent recital. Thus, a deed by a father to his infant daugliter and her heirs, wliich also recites that the same is to be held in trust by her grandfather until she shall become of age, jiasscs the title to the proi»erty directly to the daughter upon delivery of the deed, and no title or trust is vested in the grandfather.'^ 1 Fofiarty v. Stock, 80 Tenn. 010, 8 S. * Ilendorson ;-. Mack, 82 Ky.379; Rat- W. ]{ep. 846. cliffi' r. Marrs, 87 Ky. 26, 7 S. W. Keji. 2 Moore v. Waco, 85 l\x. 200, 20 S. 395, 8 S. W. Rep. 876. See Bodi.in v. W. Rep. 61. Arthur, 91 Ky. 53, 14 S. W. Rep. 904. 3 Baskeit V. Sellers (Ky.), 19 S. W. ^ Aunis r. Wilson, 15 Colo. 2.'?f,. L'.') !'ac. Rep. 9. See BoJiiie v. Arthur, 91 Ky. Rep. 304. 53, 14 S. W. Rep. 904. -J'-' ^ oil.] TllK IIABKNDUM, OU THE ESTATKS (flKATED. Alter a conveyance in fee, a clause in the deed, indicating the motive or purpose of the conveyance, will not limit its effect as a conveyance of the fee. Thus, where a wife conveyed to lier hus- band certain land in fee, and immediately following the descrip- tion in the deed there was a clause which declared that the object and intention of the conveyance was to make good certain mort- o-ao-es which the husband had given upon the land, it was held that her deed was effectual as a conveyance of the fee, and that the motive for making the conveyance was immaterial.^ But the context may show that the word " heirs" is to be re- jected, as when the habendum is to one, his heirs and assigns, "from the perfection of these presents for and during the term of his natural life." ^ A deed in fee and an instrument executed at the same time by the grantee, declaring the intention of the parties to be that the grantee should hold only a life estate, should be read together as one instrument ; and the grantor is entitled to relief in equity either by reforming the deed so that it should express only a life estate, or by restraining the grantee from asserting any greater estate or interest/^ Where the granting clause conveyed an estate in fee, "subject to the limitations hereinafter expressed as to part thereof," and the habendum limited one half part of the land to the grantee for life, and at his decease to descend to his children, it was held that the habendum reducing the estate in one half part to a tenancy for life was not repugnant to the premises ; for the prem- ises indicate a limitation of the estate in fee as to a part of the land, and this limitation is found in the habendum. The premises are not in such case complete without the words of the habendum. There is no repugnancy between these clauses.* II. The naming of the Cirantee in the Habendum Clause. 671. The grantee should be named in the habendum as well as in the granting clause. If no grantee be named in the prem- ises, the grantee named in the habendum takes the estate.^ If two 1 Bodwell Granite Co. v. Lane, 83 Me. » Scofield '•. Quiun, 54 Minn. 9, .55 N. 168, 21 Atl. Kep. 829 ; Fowler v. Black, W. Rep. 745. 136 111. 363, 26 N. E. Kep. .596. * Tyler v. IMoore, 42 Pa. St. 374. 2 Re Hammersly, 11 Ir. Ch. 229, 12 & Co. Litt. 7 «, 26/;; Shep. Touch. 75; Ir. Ch. 319. Spyve v. Topham, 3 East, 115; Sumner v. 476 NAMING OF THE GRANTEE IN THE HABENDUM. [§§ 572-574. ov more persons are named in tlie premises, and only one of them is named in the habendum, he alone will take an immediate estate. In such case there is iio i-epugnancy between the premises and the habendum, and the manifest intention of the grantor is effectu- ated by making the person named in the habendum the grantee under the deed. 572. A stranger to the premises in which a grantee is named cannot take as a grantee in fee. If in the premises one person be named as grantee with words of inheritance, but the habendum is to another, the habendum is repugnant and void, and the person named in the premises will take.^ 573. A use may be declared in the habendum to a person to whom no estate is granted in the premises. - A remainder may also be declared in the habendum to one who is not named in the premises.^ 574. If one grantee is named in the premises, and in the habendum the same person with another is named, the grantee named in the premises will take the estate conveyed, and the person not so named will take nothing.* In South Carolina, however, it is held that if in the premises a person is named as grantee without words of inheritance, and in the habendum he is again named Nvith another person not named in the premises, with words of inheritance as to both, the habendum will control, and each of them will take an estate in fee in the land.^ Williams, 8 Mass. 162, 174, 5 Am. Dec. GO ; Spyve v. Topham, 3 East, Wo; Kerr 8.3. per Sed-wick, J. ; Berrv r. Billings, v. Kerr, 4 Ir. Ch. 493 ; Blair .. Osborne. 44 Me. 416. 69 Am. Dec. io7 ; Irwin r. 84 N. C 417; Beecher .. H.cks 7 Lea. Longworth, 20 Ohio, 581; McLeod v. 207. 213. per Cooper, J.; M^'C" lock v. Tarrant, 39 S. C. 271,274,280, 17 S. E. Holmes. \U Mo. 445, 19 b^ W. Kep. Rep. 773, per Pope, J., and Mclver, C. J. 1096; Wager v. Wager, 1 Serg. & R. 1 Blair v. Osborne, 84 N. C. 417 ; Haf- 374. T • ^ T^ p n 111 Q.1 Am * Sa.mme8' Ca.se, 13 Coke, 54; Winds- Tier I'. Irwin, 4 Dev. & B. 433. 34 Am. oaraiiito v a. , Dec. 390; McLeod v. Tarrant. .39 S. C. more v. Hobart. Hob. 313/., Cro. iMiz. 271, 17 S. E. Rep. 773, per Mclver. C. J., 58. „ o r. «-, i- dissenting ' >I«^Leod v. Tarrant, 39 S. C. 2, 1, 1 . ■^ Sammes' Case, 13 Coke, 54 ; Spyve .. S. E. Rep. 773. Mclver. C. J., d.ssent.ng Topham, 3 East, 115. <"' tl-c ground that a person cannot take 3 Co Eitt. 27 a, 231 a; Windsmore v. an immediate estate by the habendum to Hobart, Hob. 313 6; Owen's Case.3 Leon, whom no grant is ma-le in the premises. 477 § 575.] THK HABENDUM, OR THE ESTATES CREATED. III. The Word '•'• Heirs'" essential at Common Law to create an Estate in Fee. 575. To create an estate in fee simple by deed it is essen- tial that the limitation shall be to the grantee '•' and his heirs." Littleton states the universal rule : ^ " If a man would purchase lands or tenements in fee simple, it belioveth him to have these \Yor(ls in his purchase, 'to have and to hold to him and to his heirs ; ' for these words 'his heirs ' make the estate of inheritance. For it" a man purchase lands by these words, 'to have and to hold to him forever,' or by these words, 'to have and to hold to him and his assigns forever,' — in these two cases he hath but an estate for term of life, for that there lack these words, ' his heirs,' which words only make an estate of inheritance in all feoffments and grants." An estate in fee cannot be created by describing it as such, as " to have and to hold to him in fee simple." ^ Only an estate for life is created by such a deed. The words " his heirs " are absolutely essential to the creation of an estate in fee simple. No other words and no description of the estate is sufficient. "These words only," says Littleton, "make an estate of inher- itance in all feoffments and grants." ^ It does not avail to say 1 Littleton, § 1, Co. Litt. 6 a. 2 By statute in Ensland these are now the appropriate words to create an estate in fee. 3 Shep. Touch. 106; Bridgewater v. Bolton, Mod. 106, 109. Arkansas : Pat- terson V. Moore, 15 Ark. 222. Illinois: Edwardsville II. Co. v. Sawyer, 92 111. 377. Maryland: before the act of 1856, ch. 154, Code, art. 21, § 11 ; Handy «. Mc- Kira, 64 Md. 560, 4 Atl. Rep. 125 ; Brady V. I":vans (Md.), 28 Atl. Rep. 1061 ; Hofsass /•. Mann, 74 Md. 400, 22 Atl. Rep. 65; Merritt v. Di.'^ney, 48 Md. 344. Massa- chusetts : Buffum i'. Hutchinson, 1 Allen, 58 ; Scd;;wick v. Laflin, 10 Allen, 430 ; Curtis V. Gardner, 13 Met. 457 ; Ashcroft V. Eastern I?. Co. 126 Mass. 196, 30 Am. Rep. 672. In the earliest years of the Massachu- setts colony a very loose practice had grown ujjof making conveyances intended to be in fee without the use of the word 478 " heirs." To stop this, a statute was en- acted by the General Court in May, 1651, which recited that " whereas, through un- skilfulness of some that make deeds and conveyances of lands and houses, the word ' lieir ' is oftentimes omitted ; . . . for pre- vention whereof for the time to come, this court ordereth, that in all deeds and conveyances of houses and lands in this jurisdiction, wherein an estate of inherit- ance is to pass, it shall be expressed to have and to hold to the grantee, ' his heirs and assigns forever.' " In Feoffees of Grammar School v. Andrews, 8 Met 584, 592, the court say : " In construing con- veyances mnde early after the settlement of the country, when conveyancing was little understood, the intention of the par- ties is to govern, without regarding the rigid nile.s of construction whieli would be applicable to rect lit conveyances, and which iiii"ht defeat the intention of the THE WORD " HEIRS " ESSENTIAL AT COMMON LAW. [§ 676. that the grantee is to have and to hold to him forever, or to him and Ins assigns forever. No matter how plainly it is de- clared that the grantee is to have an estate in fee simple or in perpetuity, the deed without the word " heirs "' will convey to him only a life estate.^ The rule that the word " heiis " is essential to create by deed an estate in fee is a purely arbitrary rule of the common law. It is a term of art, which cannot be dispensed with except b}^ legislation. 576. In most of the States the word " heirs " is declared by statute not to be necessary to convey an estate in fee sim- ple, or it is declared that every estate in lands is taken to be an estate in fee simple, unless a less estate is expressly limited or appears to be conveyed b}- operation of law.'^ parties, however clearly that mij^ht be 61, where the grants were to one and his made to appear." Missouri: Hogan v. Welcker, 14 Mo. 177; Reaume v. Chambers, 22 Mo 36; Martin v. Long, 3 Mo. 391. New Jersey : Trusdell v. Lehman, 47 N. J. Eq. 218, 20 Atl. liep. 391 : Adams v. Ross, 30 N. J. L. 50.5, 82 Am. Dec. 237 ; Kearney v. Ma- comb, 16 N. J. Eq. 189 ; Sisson v. Don- " successors and assigns." Hofsass v. Mann, 74 Md. 400, 22 Atl. Rep. 6.5; Clearwater v. Rose, 1 Blackf. 137 ; and Taylor v. Cleary, 29 Gratt. 448, where tlie grants were to one and liis "execu- tors, admini.'itrators, and assigns." Kear- ney V. Macomb, 13 N. J. Eq. 189, wheie the grant was to one and " his legal rep- nelly, 36 N. J. L. 432 ; Melick i;. Pidcock, rcsentatives and assigns." Foster v. 44 N. J. Eq. 525, 540 ; Chancellor r. Bell, Joice, 3 Wa.sh. C. C. 498, where the grant 45 N. J. Eq. 538, 541. New York : Jack- son V. Myers, 3 Johns. 388, 3 Am. Dec. 504. North Carolina : before Code of 1883, Stell V. Barham, 87 N. C. 62; Roberts V. Forsythe, 3 Dev 26. Ohio: Young v. Mahoning Co. 53 Fed. Rep. 895. Penn- sylvania : Lemon v. Graham, 131 Pa. St. 447, 19 Atl. Rep. 48, 25 W. N. C. 339; Brown v. Mattocks, 103 Pa. St. 16 ; Hile- man v. Bouslaugh, 13 Pa. St. 344, .53 Am. Dec. 474. South Carolina : Bradford V. Griffin, 40 S. C. 468, 19 S. E. Rep. 76; McLeod V. Tarrant, 39 S. C. 271, 17 S. E. Rep. 773 ; Bratton v. Massey, 15 S. C. 277, 284; Varn ;;. Varn, 32 S. C. 77, 85, 10 S. E. Rep. 829; Jones v. Swearingcn (S. C), 19 S. E. Rep. 947 ; Lorick v. Mc- Crcery, 20 S. C 424, 430. 1 Curtis V. Gardner, 13 Met. 457 ; Engel w. Ayer, 85 Me. 448, 27 Atl. Rej). 352; Sedgwick v. Laflin, 10 Allen, 430 ; and Miles 1-. Fisher, 10 Ohio, 1, 36 Am. Dec. was to one " and his generation, to endure .so long as the waters of the Delaware should run." See, however, Stevens v. Dewing, 2 Vt. 411 ; and Arms i'. Burt, I Vt. 303, 18 Am. Dec. 680, where a grant to one "so long as wood grows, and water runs " was held to create a fee. - Alabama: Code, 1886, S '^24. Ari- zona: R. S. 1887, 1" 217. Arkansas : Dig. of Stats. 1884, §641. California: Civ. Code, §§1072, 1105; Montgomery «;. Sturdivant, 41 Cal. 290. Colorado: G. S. 18S3, §204; Annot. Stats. 1891, §433. Georgia: Code 1882, §2248, being act of 1821 ; Greer v. Pate (Ga.), 11 S. E. Rep. 869. Idaho: R. S. 1887, §§ 2905, 2927. Illinois: R. S. 1889, ch. 30, § 13. Indiana: H. S, 1894, § 3348, act of May 6, 1852. Iowa: R. S. 1888, § 3100. Kan- sas: G. S. 1889,11 1109. Kentucky: G. S. 1894, §2342. Maryland: I'ub. G. L. 1888, art. 21, IT 11. Prior to the act of 479 § 577.] TUIC HABKNDUM, OR THE ESTATES CREATED. The intent, under such a statute, to pass a less estate than a fee is shown by a limitation in a habendum for the life of the grantee, reiuaiiuler to his children. Unih'r the strict rules of the coiHinon law a remainder may be declared in the habendum to one not mentioned in the premises. ^ The English Conveyancing and Law of Property Act of 1881 ^ provides that '' it shall be sufficient, in tin; limitation of an estate in fee simple, to use the words 'in fee simple,' without the word 'heirs ; ' and in the limitation of an estate in tail, to use the words ' in tail ' without the words ' heirs of the body ; ' and in the limi- tation of an estate in tail male or in tail female, to use the words * in tail male ' or ' in tail female,' as the case requires, without the words ' heirs male of the body ' or ' heirs female of the body.' " Regarding this change it is observed in Bythewood's Precedents ^ that it " may be doubted whether there is much advantage to be obtained from this clause so far as regards ordinary purchase deeds. Words of limitation must still be used, and the new stat- utory words of limitation do not seem to be an improvement upon the accustomed form." 577. Coke declares that the word " heirs" must be used in the plural number. " For," he observes,* " if a man give land to a man and to his heir in the singular number, he hath but an 1856, ch. 154, the rule of the common law prevailed. Michigan: Aniiot. Stats. 1882, § 5730. Minnesota: G. S. 1894, § 2163. Mississippi: Annot. Code, 1892, §2435. Missouri : R. S. 1879, § 3939 ; R. S. 1889, §88:34; McCullock v. Holmes, HI Mo. 44.5, 19 S. W. Rep. 1096. Montana: Comp. Stats. 1887, p. 664, §278. Ne- braska: Comp. Stats. 1893, ch. 73, § 49. Nevada: G. S. 1885, §2612. New Hamp- shire : In Cole v. Lake Co. 54 N. H. 242, 290, it was judicially determined without the aid of a statute that the word " heirs " is not essential to the creation of an estate in fee: "Our conclusion is," says Mr. Justice Ladd, " that the rule which wonld defeat the obvious intention and destroy the plainly expressed contract of the par- ties in the present case is not ndaptpd to our in.stitutions, or the condition of tliinj^s in this State; and tliat ic never I'ecame part of the law of the Staie.'' New York : 480 4 R. S. 1889, p. 2461. North Carolina: Code 1883, § 1280, act of 1879; Ful- bright V. Yoder, 113 N. C. 456, 18 S. E. Rep. 713. North Dakota: Comp. Stats. 1887, § 3241. Oklahoma: R. S. 1893, § 1639. Oregon: G. L. 1892, § 3005. South Dakota: Comp. Stats. 1887, § 3241. Tennessee: Code 1884, § 2812, act of 1851, ch. 33; Hanks v. Folsom, 11 Lea, 555, 560 ; Reecher v. Hicks, 7 Lea, 207, 211. Texas: R. Civ. Code 1889, art. 551. Virginia: Code 1887, § 2420. Washing- ton: G. S. 1891, § 1429. West Virginia: Code 1891, ch. 71, § 8. Wisconsin: Annot. Stats. 1889, § 2206. Wyoming: R. S. 1887, § 34. 1 McCullock V. Holmes, 111 Mo. 445, 19 S. W. Rep. 1096; Farrar v. Christy, 24 Mo. 453. 2 44 & 45 Vict. ch. 41, § 51, 3 Vol. V. p. 207. * Co. Litt. 8 b. THE WORD " HEIRS " ESSENTIAL AT COMMON LAW. [§§ 578, 579. estate for life, for bis lieir cannot take a fee simple by descent, because be is but one, and tberefore in that case bis btirs sball take notbing." But Coke's opinion has been denied by later autborities,^ and it is doubtful if it sbould be followed at the present day. Tbe word "• heir " would doubtless be regarded as nomen collectivum, or a clerical mistake, for " heirs." ^ Tbe ha- bendum must be to tbe grantee and his beirs, and not " or bis heirs." In the latter form he would take only an estate for life, for the uncertainty ; though, as suggested by Lord Hardwicke, the word "or" might be construed as a clerical error for "and."^ If tbere be more than one grantee, the habendum must be to tbem and " their heirs." * If the word " their " be omitted, the grantees " have but an estate for life for the uncertainty." But it is said that if land be given to one man "and beirs," omitting "his," the fee passes notwitbstanding.^ 578. The word " issue," when used in place of the word *' heirs " in a deed, is a word of purchase, and not of limita- tion.'^ Tbe word "issue" may describe a class of persons who are to take as joint tenants with an ancestor named. It may describe a class wbo are to take as purchasers at a time fixed. In wills it may denote an indefinite succession of lineal descend- ants who are to take by inheritance." It seldom has tbe latter meaning in deeds. 579. The word " children " is a word of purchase and not a word of limitation.^ It will be taken to have been used in 1 Ilargrave, note 4, Co. Litt. 8 6; Dub- Watts & S. 160; Mcndenhall v. INIower, ber V. Trollop, 8 Vin. Abr. 233, p. 13, per 16 S. C. 303, 31 1 ; Bradford v. Griffin, 40 Eyre, C. J., who says that the opinion of S. C. 468, 19 S. E. Kep. 76. Coke is not warranted by anything in Lit- ' Mendeuhall v. Mower, 16 S. C. 303, tleton; Whitinf? v. Wilkins, 1 Biils. 219, 311 ; IMaiigum v. Piester, 16 S. C. 316. a case of a devise; Hall v. Vandegrift, » Alabama: Dunn r. Davis, 12 Ala. 135 ; 3 Binn. 374, also a case of a devise; Man- May v. Uitchie, e.-) Ala. 602. Georgia : waring v. Tabor, 1 Root, 79, a case of a Ewing i;. 8hroi)shire, 80 Ga. 374, 385, 7 deed. S. E. Rep. 5.')4. Indiana : Burns r. Wees- 2 Huntington v. Lyman, 1.38 Mass. ner, 134 Ind. 442, 34 N. E. Kep. 10; Tin- 205. der v. Tinder, 131 Ind. 381, 30 N. E. Hep. a Wri-ht V. Wright, 1 Ves. Sr. 409, 1077 ; Mcllhinny v. Mcllhinny, 137 Ind. ^j, ' 411, 37 N. E. Rep. 147 ; Jackson v. Jack- ^ Mallory's Case, 5 Rep. 1116. son, 127 Ind. 346, 26 N. E. Rep. 897; 5 Co Litt 8 b Fountain C. & M. Co. v. Bcckk-heimer, Mcllliinny v. Mcllhinny, 137 Ind. 102 Ind. 76, 1 N. E. Rep. 202, 52 Am. 411 37 N. E. Rep. 147; Melsheiincr v. Rep. 645; Shimer v. Man, 99 Ind. 190, Gro'ss .58l'a.St. 412; Moss r. Sheldon, 3 50 Am. Rep. 82; Owen v. Cooper, 46 VOL. 1. 481 § 580.] THE HABENDUM, OR THE ESTATES CREATED. its natunil sense unless it is so conti'olled aiul limited by other expressions in the deed as to show it was intended as a word of limitation.^ 580. A deed to a parent and his children makes the childnMi tenants in common with their parent, liut only the children ia esse and living at the time of the conveyance, including a child 671 ventre sa mere, take under the deed,^ unless the deed expressly or impliedly includes children thereafter to be born. But other authorities hold that a conveyance to a parent and his children vests a life estate only in the parent, with remainder in fee to the children as a class, so that those in being at the date of the deed as well as those subsequently born are entitled to take in distribution on the termination of the life estate.^ One reason for regarding such a conveyance as creating an estate in remainder in the children, rather than an estate in common in the mother and her children, especially in case the conveyance is bv the father of the children, is that it is presumed that he intends to provide for his children, and the provision is more effectuil if it be regarded as creating an estate in remainder in the children, as otherwise, upon the death of the mother, part of tht' property might pass to strangers in blood to the grantor.^ A deed to a grantee named in the premises without words of limitation, habendum to him for life, and at his decease in equal Ind. 524; Andrews v. Spurlin, 35 Ind. 262. Illinois: Chapin v. Crow, 147 111. 219, 35 N. E. Rep. 536; Beacroft v. Strawn, 67 111. 28 ; Baker v. Scott, 62 111. 86. Kentucky: Baskett v. Sellers (Ky.), 19 S. W. Rep. 9 ; Goodridne i: Goodridge, 91 Ky. 507, 16 S. W. Rep. 270. Missis- sippi : Cannon v. Barry, 59 Mis'. 289. New Jersey : Adams i\ Ross, 30 N. J. L. .505, 82 Am. Dec. 237 ; Price v. Sisson, 13 N. J. Eq. 1 68. New York : In re Sanders, 4 Paige, 293 ; Rogers v. Rogers, 3 Wend. 503, 20 Am. Dec. 716 ; Chrystic v. Phyfe, 19 N. Y. 344. Pennsylvania: Hague v. Hague, 161 Pa. St. 643, 29 Atl. Rep. 261 ; Edward's App. 108 Pa. St. 283; Guthrie's App. 37 Pa. St. 9; Melsheimer v. Gross, 58 Pa. St. 412. Vermont: Ford v. Flint, 40 Vt 382. 1 Chapin v. Crow, 147 111. 219, 35 N. E. Rep. 536. 482 ■^ Faloon v. Simshauser, 130 111. 649, 22 N. E. Rep. 835 ; Glass v. Glass, 71 Ind. 392; Heath v. Heath, 114 N. C. 547, 19 S. E. Rep. 155 ; Dupree v. Dupree, Busbee (N. C.) Eq. 164, 59 Am. Dec. 590; Powell V. Morisey, 84 N. C. 421 ; Gay v. Baker, 5 Jones Eq. 344, 78 Am. Dec. 229 ; Hunt V. Satterwhite, 85 N. C. 73 ; Hampton v. Whueler, 09 N. C. 222, 6 S. E. Rep. 236. 3 Courscy v. Davis, 46 Pa. St. 25, 84 Am. Dec. 519; White v. Williamson, 2 Grant, 249 ; Wolford v. Morgcuthal, 91 Pa. St. 30; Haskins v. Tate, 25 Pa. St. 249; Tyler v. Moore (Pa. St.), 17 Atl, Rep. 216; Hague v. Hague, 161 Pa. St. 643, 29 Atl. Rep. 261, overruling Shirlock V. Shirlock, 5 Pa. St. 367 ; Smith v. Up- ton (Ky.), 13 S W. Rep. 721 ; Kinney v. Mathews, 69 Mo. 520. ■* Smith V. Upton (Ky.), 13 S. W. Rep. 721. THE WORD " HEIRS " ESSENTIAL AT COMMON LAW. [§§ 581, 582. shares to his cliildren, passes a life estate to the grantee, with remainder to his children. There is in such case no repugnancy between the grantin^-plause and the habendum. ^ 581. Tiae limitation to heirs need not be made in direct terms, nor need the word be used immediately after the name of the grantee;^ but the word must appear in some part of the deed other than in connection with the name of the grantor, in order to create an estate in fee.'^ A limitation to one and his "right heirs" is the same as a limitation to him and " his heirs." * 582. The use of the \7ord "heirs" in the •warranty clause alone is not sufficient to create an estate in fee. A grant without words of inheritance in the premises, and with no ha- bendum clause, is not enlarged into a fee by a general warranty to the grantee and his heirs. The warranty clause cannot operate to enlarge the estate granted.^ The rule in Nortli Carolina is otherwise, and was so even before the passage of the act providing that the word "heirs" shall not be necessarj^ to create an estate in fee, and that every estate shall be regarded as an estate in fee unless a less estate appears to be conveyed. There the use of the word "heirs" in the clause of warranty is a sufficient mani- festation of an intent to convey an estate in fee simple. " In- deed, the word ' heirs,' as used, has no meaning pertinent, or application if the purpose was to convey but a life estate. Why shall the warranty extend to the heirs of the bargainee if he is to have but a life estate ? "^ Again, the Supreme Court of that State say : " The courts, in order to carry out the intent of the grantor, where it could be gathered from the face of a deed, liave, in a liberal spirit, construed conveyances as passing an estate of inheritance in all cases where the word 'heirs' was joined as a qualification to the name or designation of the bargainees, even 1 Rijigin V. Love, 72 111. 553; Rupert ^ Jordan ;;. Neece, 36 S. C. 295, 15S. E. V. Penner, 35 Neb. 587, .53 N. W. Rep. Rep. 202 ; Roberts v. rorsythc,3 Dev. 26 ; 598; Bodiiie v. Arthur, 91 Ky. 53, 14 S. Sncll v. Youug, 3 Ircd. 379; Register v. W. Rep. 904. Rowell, 3 Jones, 312; Hof-^aHS r. Mann, 2 Melkk r. Pidcock, 44 N. J. Eq. .525, 74 Md. 400, 22 Atl. Rep. 65; Sisson v.. 540 ; ILuci.s v. Seashore Land Co. 47 N. Donnelly, 36 N. J. L. 432 ; Adams v. J. Eq. 365. 371, 20 Atl. Rep. 497. Ross, 30 N. J. L. 505, 82 Am. Dec. 237 ; 3 Anderson v. Loj,aiu, 105 N. C. 266, 11 Patterson v. Moore, 15 Ark. 222. S. E. Rci). 361. '' Saunders v. Saunders, 108 N. C. 327, 4 Fleteher v. Fletcher, 88 lud. 418. 332, 12 S. E. Rep. 909. 483 68.i.J TIIK IIABKXDUM, OR THP: ESTATKS CIM'ATED. in the ohiuse of wunanty, or where tlie covenant of warranty was confused with tlie premises or habendum, if, by a transposi- tion of it, or by making a parenthesis, or in any way disregard- ing punctuation, the word 'heirs' could be made to qualify tlie apt words of conveyance in the premises, or the words 'to have and to lu)ld " in the habendum and tenendum, even though it was made to do double duty as a part of the covenant of warranty," ^ 583. The word "heirs '' may in exceptional cases be inter- preted to mean " children," and to be a -word of purchase and not a w^ord of limitation ; but to have this effect the language used and tiie intention gathered from the whole deed must fully and clearly authorize such interpretation.^ Technical words must be given their legal effect, unless it is clear that they were not used in their proper sense.^ The word "heirs" was held to mean " children " where the deed was to a married woman and the heirs of her husband by her, both husband and wife being alive at the time of the execution of the deed. The conveyance was to the woman and her children as tenants in common in equal shares. The estate passed directly out of the grantor to the designated grantees.* 1 Anderson i'. Logan, 105 N. C. 266, 270, 1 1 S. E. Rep. 361, per Avery, J. The following cases fall under this principle : Staton V. Miilli-s, 92 N. C. 623 ; Graybcal V. Davis, 95 N. C. 508 ; Hicks v. Bullock, 96 N. C. 164, 1 S. E. Rep. 629; Bunn V. Wells. 94 N. C. 67 ; Ricks v. rulliam, 94 N. C. 225 ; Phillips r. Thompson, 73 N. C. 543; Waugh v. Miller, 75 N. C. 127 ; Allen v. Boweu, 74 N. C. 155 ; Phil- lips i;. Davis, 69 N. C. 117; Mitchell i-. Mitchell, 108 N. C. 542, 13 S. E. Rep. 187; Winborne v. Downing, 105 N. C. 20, 10 S. E. Rep. 888 ; "Vickers v. Leigh, 104 N. C. 248, 257, 10 S. E. Rep. 308, Several of these cases related to deeds executed before the act of 1879 dispens- ing with the necessity for the use of the word " heirs." A deed in which the word " heirs " does not appear in any part, ex- cept in connection with the name of the bargainor, or with some expression such as "party of the first part," used in the clause of warranty or elsewhere to des- ignate the grantor, vests only a life estate 484 in the bargainee. Batchelor v. Whitaker, 88 N. C. 350; Stell v. Barham, 87 N. C. 62; Anderson v. Logan, 105 N. C. 266, 271, 11 S. E. Rep. 361. - Pritchard v. James, 93 Ky. 306, 20 S. W. Rep. 216; Mitchell v. Simp.son, 88 Ky. 125, 10 S. W. Rep. 372; Griswold V. Hicks, 132 111. 494, 24 N. E. Rep. 63 ; Carpenter v. Van Olindcr, 127 III. 42, 19 N. E. Rep. 868 ; Ridgeway v. Lanphcar, 99 Ind. 251 ; Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82; Allen v. Craft, 109 Ind. 476, 9 N. E. Rep. 919, 58 Am. Rep. 425; Taney v. Fahnley, 126 Ind. 88, 25 N. E. Rep. 882; Watrous v. Allen, 57 Mich. 362, 24 N. W. Rep. 104, 58 Am. Rep. 363 ; Warn v. Brown, 102 Pa. St. 347; Tyler V. Moore, 42 Pa. St. 374, 389, per Strong, J. ; Ware v. Richardson, 3 Md. 505, 56 Am. Dec. 762 ; Taylor v. Cleary, 29 Gratt. 448. 3 Jesson V. Wright, 2 Bligli, l.'i6, per Lord Rtdesdale; Doe v. Gallini, 5 Barn. & Adol. 621. ■* Tinder v. Tinder, 131 Ind. 381, 30 N. THE WORD " HEIRS " ESSENTIAL AT COMMON LAW. [§§ 584-58G. While the word " children " used in the habeiKlnm may be held to mean " heirs,'' if such was the evident intention of the grantor, yet, if the children are specified by name, any inference that the term was used to designate the persons who might be the grantee's heirs at his death is clearly excluded, for at that time the children mentioned might not be living, and other chil- dren might be born to him who would be his heirs at his death. ^ 584. A deed to a woman " and her heirs " does not pass any title to the heirs. There is no sufficient indication that the word "heirs" was used in the sense of "children," and the word must be given its usual interpretation as a word of limi- tation.2 And so a deed to a woman and "her bodily heirs" vests in her an estate in fee where it does not appear from the whole instrument that such words were used in the sense of "children." 3 585. In a deed to one and " his present heirs " the word " heirs " is not employed in a technical signification, but as words of purchase. The deed does not vest an estate in fee in the grantee, but vests an estate in the grantee and his heirs-apparent as tenants in common.* A conveyance to the heirs of a person livinof, and having children in beino; at the time, vests the title in such children to the exclusion of children subsequently born.^ By statute in North Carolina a limitation to the heirs of a living person is to be construed as a limitation to the children of such person, unless a contrary intention appears.^ 586. If the " heirs " referred to in the habendum are not E. Rep. 1077. And see Fountain County ^ Lanham v. Wilson (Ky.), 22 S. W. Coal Co. V. Beckleheimer, 102 Ind. 76, 1 Rep. 438 ; Short v. Terry (Ky.), 22 S. W. N. E. Rep. 202, 52 Am. Rep. G4.5 ; Tharp Rep. 841. In this case it was snid that V. Yarbrough, 79 Ga. 382, 4 S. E. Rep. the repetition of the expression " heirs of 915, 11 Am. St. Rep. 439; Tucker v. the hody," in the covenants of the deed, Tucker, 78 Ky. 503 ; Brann v. Elzey, 83 docs not change the meaning of tiie in- Ky. 440 ; Stamper v. Armstrong (Ky.), strnmcnt. 15 S. W. Rep. 513 ; Bodine v. Arthur, 91 * Fountain County Coal Co. v. Beckle- Ky. .53, 14 S. W. Rep. 904; Heath v, heimer, 102 Ind. 76, 1 N. \V. Rep. 202, Hewitt, 127 N. Y. 166, 27 X. E. Rep. 959; 52 Am. Rep. 645; Chess-Carley Co. v. Heard v. Horton, 1 Denio, 165, 4.3 Am. ' Purtcll, 74 Ga. 467. Dee. 059. ■' Tharp v. Yiirhrongli, 79 Ga. 382, 4 1 Bra.sington v. Hanson, 149 Pa. St. S. E. Rep. 915 ; Heard r. Ilorton, 1 Denio, 289, 24 Atl. Rep. 344 ; Rupert v. Pcnner, 165, 43 Am. Dec. 659. 35 Neb. 587, 601, 53 N. W. Rep. 598. « Code 1883, § 1329 ; Jarvis v. Davis, Pritchard v. James, 93 Ky. 306, 20 99 N. C. 37, 5 S. E. Rep. 227. S. W. Rep. 216. 485 § 587.] THK IIAr.KXDUM, OR TIIK ESTATES CREATED. the heirs of the grantee, the word is one of purchase. Thus, where a deed is made to a married woman and th(! heirs of her husband, the woid '"heirs" is synouyiuous with "children," and an absolute estate vests in prcesenti in the grantee and the children then living of her husband. ^ 587. In case a deed contains a reference to some other in- strument which contains a limitation to heirs, and conveys the same (\state as therein, the deed may pass a fee simple without the use of the word '• heirs " in express terms. " Words of direct and immediate reference will suffice. The word 'heirs' or 'suc- cessors ' need not be in the identical deed of grant, or other mode of assurance by which the estate is granted or conveyed. Thus, when one to whom laiuls have been granted in fee, after reciting the grant, or without any recital, grants the lands to another as fully as they were granted to him, or where a man grants two acres to A and B, to hold one acre to A and his heirs, and the other acre to B, in form aforesaid," ^ the fee will pass. A deed which, after referring to the conveyance to the grantor, conveyed "all the grantor's estate, right, title, interest, term of years to come, property, claim, and demand, both in law and in equity," conveys the property as fully as it was conveyed to the grantor, and as the conveyance to the grantor gave him the estate in fee, the grantor's conveyance vests the fee, even though the word "heirs " does not appear in the deed.'^ But a deed by a distributee of an intestate estate of all his interest in the estate, without words of inhei-itance, conveys only a life interest, the fee remaining in the distributee.^ 1 Tucker v. Tucker, 78 Ky. .503. in the last case cited that a fee simple may 2 Preston on Estates, vol. 2, p. 2 ; Co. be created in Pennsylvania, by deed with- Litt. 9/j,- Mercier v. Missouri River, &c. out words of inheritance, by a reference R. Co. 54 Mo. 506 ; Hofsa.ss r. Mann, 74 to another instrument in which such Md. 400, 22 Atl. Rep. 65; Lytle v. Lytic, words are found ; and it was made clear 10 Watts, 259; Lemon v. Graham, 1.31 that such was the rule in England at a Pa. St. 447, 19 Atl. Rep. 48, 25 W. N. C. very early date." And see examples from 339. Per Williams, J. : " Where techni- Rhcppard's Touchstone, 101 . cal words an-. sup])lied by referonce to an- In Reaume v. Chambers, 22 Mo. 36, other instrument which contains them, and Lytle r. Lytle, in Watts, 259, the the case was recognized as an exception reference to the other instrument was in- as early as the days of Lord Coke; and sufficient to create an estate in fee. this exception was recognized bv our own '' Brady ?•. Evans (VId.), 28 Atl. Rep. case of Lytle i;. Lytle, 10 Watts, 259, and 1061. followed. The rule was plainly laid down * Lorick v. McCreery, 20 S. C. 424. 486 THE WORD "heirs" ESSENTIAL AT COMMON LAW. [§§ 588-5U0. 588. A release by one of several joint tenants seised in fee simple may be made ■without words of inheritance.^ The release is regarded as simply extinguishitig tlie right or interest of the releasor, leaving the others as sole owners. 589. An indorsement placed by the grantee upon a deed which conveys to liim an estate in fee simple may be sufficient to transfer such an estate without words of inheritance in the in- dorsement; as where-a grantor placed upon tlie back of such a deed an assignment, under his hand and seal, of all his right, title, and interest " in and to the within deed," and delivered the deed so indorsed under circumstances indicating an intention to transfer a fee simple estate in the land described.^ But other and perhaps the more consistent authorities hold that the eft'ect of such an indorsement is at most to pass an equitable title only.'^ 590. A deed to a person without words of limitation, but with an unlimited power of disposal, vests in him an absolute fee.4 But a conveyance to one for life, with a power of appointment at his decease in fee, is not enlarged by the power to an estate in fee.^ A power of sale in a mortgage without words of inheritance does not operate to give the mortgagee an estate in fee, at least before the power is executed.*^ But tlie mere fact, that the permanent and exclusive use of land 1 Co j^itt_ 9 /,_ ence to ' the within deed ' for a descrip- 2 Lemon v. Graham, 131 Pa. St. 447, tion of tlie estate; and the fee simple 4.54, 19 Atl. Kep. 48, 25 W. N. C. 339. wliich the father took hy the deed from Williiims, J., in the last-named case, John he transfers hv his assignment to speakin- of the assignor, said: "He Allen." See, also, llarlowe r. llud^iins, transferred his whole estate, as vested in 84 Tex. 107, 19 S. W. Hep. 364. him by virtne of the deed, by the refer- •' Dnponty. VVcrthcnmn, 10 Cal. 354; ence to its terms in the assignment. He Porter v. Read, 19 Me. 303; Keaume i: said, in snhstance and in legal effect, 'as Chambers, 22 Mo. 30. fullv as the within deed clothes me with * Jackson i-. Roiniis, 10 .Johns. .537; the title to the land described in it, so Ciok r. Walker, 15 (U\. 457; Green v. fully and completely do I transfer the Sutton, 50 .Mo. ISO; Pollanl v. Union same land to my son AHen. He is to Nat. Bank, 4 Mo. A,.p. 408; Tremmel v. take from me the title which I took from Klciboldt, G M<>. A])p. 5-19. my grantor.' The tcchnic.il words that " Graves r. Trnehlood. 90 N. C. 495, 1 are wanting in the a.-^signmcnt, standing S. K. Hep. 918. by itself, are thus supplied by the refer- « Sedgwick v. Laflin, 10 Allen, 430. 487 §§ r)91-593.] Till-: HABENDUM, ok the estates created. is osscMitial to tlie enjoyment of a right granted tlirreiii, is not sutlii'ient to niako it operate as a, conveyance in fee.' 591. Parol evidence is not admissible to show that a deed to a person without words of inheritance was intended to convey an estate in fee, where there is no ambiguity in Ihe terms. Thus, it cannot be shown that a deed which recites merely that the grantor assigns all his present interest, and all that he may hereafter acquire, in the estate of his father, was in- tended to convey anything more than a life estate to the grantee.^ 592. The word " assigns '" is without legal effect in a limi- tation to one " and his heirs," though it is customary to add the words "and assigns forever." These words add nothing to the legal effect of the instrument, and are in fact superfluous.^ A grant to one and his heirs carries with it the estate to his assigns by operation of law.* 593. There is an exception to the rule that the word *' heirs " is necessary to create a fee in case of a trust. Where upon the face of the deed it appears that the conveyance is in trust for a use, the full performance of which requires or may possibly require the vesting of a fee in the trustee, he is held to take an estate in fee simple without the use of the word " heirs " as a word of limitation upon the estate conveyed.^ Thus, a deed to trustees and their successors in trust to sell and convey in fee sim- ple absolute, without the word " heirs " in either the habendum or granting clause, conveys to the trustees an estate in fee simple. 1 Munro v. Meech, 94 Mich. 596, .54 N. 45 Am. Dec. 187 ; Stearns v. Palmer, 10 W. Rep. 290. Met. 32 ; Newhall v. Wheeler, 7 Mass. - Jones V. Swearingen (S. C), 19 S. E. 189; Cleveland v. Hallett, 6 Cus^h. 403; Rep. 947. Sears v. Russell, 8 Gray, 86 ; Attorney- 3 Brookman i-. Smith, L. R. 6 Exch. General v. Proprietors of Federal St. 291, 306, aflSrmed L. R. 7 Exch. 271. Meeting-House, 3 Gray, 1 ; Fisher v. * Brasington v. Hanson, 149 Pa. St. Fields, 10 Johns. 495, 505, per Kent, Ch. ; 289, 24 All. Rep. 344. Welch v. Allen, 21 Wend. 147 ; Hawley 5 Perry on Trusts, §§ 312-320; Gates v. James, 5 Paige, 318; Kirkland v. Cox, V. Cooke, 3 Burr. 1684; Villiers v. Vil- 94 111. 400; Preachers' Aid Society v. licrs, 2 Atk. 72; Neilson r. Lagow, 12 England, 106 111. 125; North v. Phil- How. 98; Webster v. Cooper, 14 How. brook, 34 Me. 532 ; Merritt i'. Disney, 48 488, 499 ; Poor r. Considine, 6 Wall. 458, Md. 344; Farqiihar.'on y. Eichelberger, 471; Ward v. Amory, 1 Curtis, 419; 15Md. 63, 72; Hawkins r. Chapman, 36 Young V. Mahoning Co. 53 Fed. Rep. 895 ; Md. 83 ; Spessard v. Rohrer, 9 Gill, 261 ; Mackall v. Richards, 1 Mack. 444; King Ewing i-. Shannahan, 113 Mo. 188, 20 S. V. Parker, 9 Cu.sh. 71 ; Brooks v. Jones, W. Rep. 1065; Wilcox v. Wheeler, 47 N. 11 Met. 191 ; Gould V. Lamb, 11 Met. 84, H. 488. 488 THE WORD " HEIRS " ESSENTIAL AT COMMON LAW. [§ 594. The trust required an estate in fee simple for its execution, and consequently a legal estate commensurate with this requirement ; and therefore the trustees took such an estate without the use of the usual words of limitation. ^ In like manner, where a city- conveyed land to a bnilding committee, omitting words of limita- tion, empowering them either to sell and convey the land in fee simple to a purchaser, or to exchange for other land, or to use it for the erection of a court-house, and then donate it to the county commissioners, it was held that such deed conveyed a title com- mensurate with the purposes of the trust, namely, a fee simple.^ A conveyance to a trustee will give him a legal estate in fee if the trust limited upon it be to the cestui que trust and his heirs ; for, though the words of inheritance in such case are connected with the estate of the cestui que trust, they will be held to relate to the legal estate of the trustee, in order to give effect to the intention of the parties.-^ A conveyance to a trustee, without words of inheritance, to permit the 'grantor's grandchildren to take the rents and profits, does not convey a fee. The court will not presume that a fee was intended in the absence of evidence to show that such an estate was necessary to effectuate the purposes of the trust. '^ 594. Words of inheritance are not necessary in an agree- ment showing that one who has taken the title to certain property holds the same, or some interest in it, for the benefit of another who advanced the purchase-money. In a suit by the executor of the party who had made the advances to recover one half of the net profits of a sale of the property, it was contended that the agreement gave him only a life estate, inasmuch as the agreement made no mention of his heirs; but the court iield that the ab- sence of the word " heirs " did not limit his interest to a life estate merely, Mr. Justice Holmes saying: " We may add that, in a case of this kind, we should go no further tlian we were compelled to go, by binding authority, in defeating the plainly expressed meaning of the instrument, for want of a technicalily 1 Neilson v. Lapovv, 12 How. 98, 110; - Young r. Malioniiig Co. 53 Fed. Hep. Ewiiig 7'. Shaunahan, 113 Mo. 188, 20 S. 895. W. Rep. 10f,5; Clevelflnd v. Halk-tt, 6 ^ Mclick r. Tidcock, 44 N. J. Eq. 52.5, 15 Cnsb. 403 ; Gould v. Lamb, 1 1 Met. 84, Atl. Rep. 3 ; Stearns v. Palmer, 10 Mot. 32. 45 Am. Dec. 187; North ;;. Philbrook, 34 * Duly r. I?ernstiin (N. M.), 28 Tac. Me. 532; Angell v. Rosen bury, 12 Micb. Kcp. 704. Ami see Kearney t;. Macomb, 241. 10 N. J. Eq. 189. 489 § 595.] THE HABENDUM, OR THE ESTATES CREATED. ■wliii-h has been done away with altogether in many jurisdictions, and wiiich would be simply vexatious if applied to a nienioran- duni like this.'' ^ 595. An equitable estate may have the character of in- heritability though the -word '•' heirs "' is not used in declar- ing the trust, provided it appears from the context that such was the clear intention of the party declaring the trust. This is an instance where courts of chancery do not adopt the same rules of construction that prevail in courts of law. If the meaning of the grantor is clear that he intended the beneficiary under the trust should have an estate in fee, he will take sucii an estate, though technical terms of the common law used in the limitation of such an estate have been disregarded ; so that the beneficiary may have an equitable fee without the word " heirs," and an equi- table entail without the words "heirs of the body." ^ Ordinarily, an equitable estate in fee is subject to the same incidents which attach to a legal estate in fee, and, generally speaking, these include the right to dispose of the estate b}' alienation as well as by devise.^ If a deed in trust declares the trust to be for a person named "and his heirs," the beneficiary takes an equitable estate in fee simple which he may devise, the word " heirs " being a word of limitation.'* But an equitable estate created by the premises cannot be en- larged to an estate in fee by a limitation to heirs in the haben- 1 Dorr V. Ckpp, 160 Mass. 538, 36 N. pj. Kep. 474. " Tliis is not thu case of a formal conveyance creating a trust, as in McElroy r. McElroy, 113 Mass. 509. It is a memorandum of a barj^ain ])reviously same conclusion. Tiie purport of the agreement, as applied to the jiresent state of facts, a sale having taken place, is hiinilar to that of the one construed and Iield sufficient in Uraun v. Coates. In made, and is put in writing to satisfy the the latter, heirs were not mentioned. See, statute (Tub. St. ch. 141, § I) and to fur- al-o, Earrell v. Joy, 16 Mass. 221, 223; nish evidtnce. This is ajjparent on the Anns v. Ashley, 4 Pick. 71 ; Scituate v. face of the wriiing. It is agreed that the Hanover, 16 Pick 222; Fisher v. Fields, efjiiity in the real estate is, as well as that 10 Johns. 495 ; Wright v. Douglass, 7 N. it shall be, owned by Clapj) and Russ in Y. 564 ; Loring v. Palmer, 118 U. S. 321, equal shares ; and a r.-ason is statnd which, 6 Sup. Ct. Pep. 1073 ; Lewin, Trusts (9th even if not true or bindinir in such a sense ed.), 54, 55." as to show a resulting trust, shows a con- '^ Lewin on Trusts, 44 ; Holmes v. sideratioii, goes back to the beginning of Holmes, 86 N. C. 205. the transaction, and imports that the un- '^ Lewin, Tru.sts, 692; Story Eq. Jur. derstanding as to ownershif. dates from §974; Popes v. Upton, 125 Mass. 258; then. If the parol evidence be considered, Gnnn r. Brown (Md.), 23 Atl. Kep. as it seems to have been in Urann v. 462. Coates, 109 Mass. 581, 584, it leads to the ' Knowldcii v. Leavitt, 121 Mass. 307. 490 THE WORD "heirs" ESSENTIAL AT COMMON LAW. [§§596-599. duni.i Thus, where a conveyance was made to the trustees of a vohiutaiy association, " in trust for the stockholders of said asso- ciation," to have and to hokl " to the said stockholders, their heirs and assigns," it was held to give to the stockholders an equitable and not a legal estate.^ 596. A sale by an oflBcer of the law under an order of court may operate to pass an estate in fee without the use of the word " heirs ;" as where a sheriff, on an execution sale of real estate owned by the juilgtnent debtor in fee, executes to the purchaser at such sale a deed of "all the estate, title, and inter- est " which the judgment debtor had in such land, the deed passes a fee in the land, though the word "heirs" is omitted. The sheriff had no authority to sell less than the debtor's entire estate, which was an estate in fee.'^ 597. There is an exception to the rule in case of a grant to a corporation sole ; " for if lands be given to a sole body politic or corporate, as to a bishop, vicar, master of a hospital, etc., there, to give him an estate of inheritance in his politic or corpo- rate capacity, he must have these words, 'to have and to hold to him and his successors ; ' for without these words . . . there pass- eth no inheritance ; for, as the heir doth inherit to the ancestor, so the successor doth succeed to the predecessor." * 598. A deed to a corporation aggregate conveys a fee sim- ple estate, though it does not contain words of limitation or succession.'^ " In strictness, wiiile a corporation scjIc has success- ors, a corporation aggregate has none, for it continues to exist, one and the same, as the river retains its identity while tlie cur- rents of water that form it are continually flowing in and passing out. There is a succession among the constituent niembeis, but none in the corporation itself." ^ 599. The deed may be reformed in equity in case the words of inheritance are omitted by mistake, contrary to the intention 1 Hastings ?•. Merriam, IIT Muss. 24.5; N. II. 488; Olcott v. Gilbert, 86 Tex. 121, Chapin v. First Universalist Society, 8 23 S. W. Hep. 98.5. Gray, .580. '' Wilkes Harre i'. Wyoming Hist. So- 2 bhapin v. First Universalist Society, ciety, 134 Pa. St. 616, 19 Atl. Rep. 809;- 8 Grav, 580. Wilcox v. Wheeler, 47 N. H. 4SS ; Clian- 3 Carolina Sav. Bank v. McMahon, 37 cellor v. Bell, 45 N. J. Eq. 538, 541. S. C. .309, 16 S. E. Rep. 31. '' A>heville Division v. Aston, 92 N. C. •* Co. Litt. 8 b, 94 h ; Overseers v. Sears, 578, 584, per Smith, C. J. 22 Pick. 122, 126; Wileox v. WiieLlcr, 47 491 § GOU.J illK IIABKXDUM, OR THE ESlAThS CliEATKD. of the parties. ^ The equitable power of reformation can be in- voked only by pli'adiiig the mistake.^ But the court is not war- ranteii in decreeing the correction of a deed containing no words of inlieritance, by a simple inspection of the deed, where there is nothin<»- to indicate that they were omitted by mistake, or that the grantor intended to convey a fee, except the reservation of the possession during his lifetime.'^ Where land was conveyed to several persons named as "trus- tees of the Methodist Church, . . . and their successors in office forever," without using the word " heirs," it was held that the intention to convey a fee simple was manifest, although tlie ab- sence of the word " heirs " prevented a court of law from giving effect to it ; that the intention to convey to the Methodist Church named, a regularly incorporated religious society, was quite clear; and that the heir at law of the grantor, having recovered in eject- ment the land conveyed, sliould be perpetually enjoined from enforcing his judgment, although the conveyance was without other consideration than the attendance of the grantor upon the ministrations of the church.^ 600. On the other hand, a deed in fee may be reformed so that it will pass only a life estate, as intended by the parties ; as where a conveyance was made in fee, and at tlie same time the grantee executed and delivered to the grantor an instrument, not under seal, declaring the intention of the parties to be that the grantee should hold only a life estate, especially where the deed was made by a daughter to her mother without other considera- tion than filial affection. " It was intended by both parties to be restricted to a life estate. They adopted means supposed to be adequate to thus limit the operation of the deed. By their fail- ure to comprehend the legal effect of the writing, the entire estate was legally conveyed. If that effect is to be given to the 1 Trusdell v. Lehman, 47 N.J. Eq. 218, was manifest that the grantor could have 20 Atl. Kep. 391 ; Chancellor v. Bell, 4.5 had no other intention than to convey an N. J. Eq. 5.38; Weller v. Rolason, 17 N. estate in fee. J. Eq. 13 ; Wanner v. Sisson, 29 N. J. Eq. - Anderson v. Logan, 105 N. C. 266, 11 141, 147 ; Rackley v. ChesniUt, 110 N. C. S. E. Eep. 361. 262, 14 S. E. Kep. 750; Vickers (,•. Leigh, ^ jj^y „. Durham Co. 110 N. C. 169, 104 N. C. 248, 10 S. E. Rej). 308; Moore 14 S. E. Kep. 646. v. Quince, 109 N. C. 85, 13 S. E. Rep. * Visitors M. E. Church v. Town, 47 872; Saunders v. Saunders, 108 N. C. N. J. Eq. 400, 20 Atl. Rep. 488. 327, 12 S. E. Rep. 909. In these cases it 492 THE RULE IN SHELLEY's CASE. [§ 601. transaction it would operate as a fraud on the plaintiff, divesting her without consideration of the estate which both parties in- tended should remain in her. It may be said that the instru- ments were in the form intended, and that the mistake was only as to the legal effect. But even in such a case equity will grant relief under proper circumstances." ^ IV. Tlie Rule in Shelley's Case. 601. The rule in Shelley's Case^ is this: Where a freehold estate is limited to one for life, and by the same instrument the inheritance is limited, either immediately or after another estate in freehold, to his heirs, or the heirs of his body, the whole estate vests in him, either in fee simple or in fee tail, in the same man- ner as if the estate had been given to him and his heirs, or to him and the heirs of his body ; and the words " heirs " and " heirs of his body " are words of limitation and not of purchase. This rule was an ancient dogma of the common law at the time of the decision from which the rule finally took its name, its origin having been traced by Justice Blackstone to a case decided in the reign of Edward 11.^ The earliest intelligible decision upon the subject, however, is to be found in the case of the Pro- vost of Beverly, in the time of Edward III., and reported in the Year Books, in which the rule is substantially declared as in Shelley's Case. The rule, though of feudal origin, has been repeatedly declared to be in accordance with the general policy of modern jurisjiru- dence.* The reason for the rule in the first instance is undoubt- edly the same as tliat which makes the word "heirs," when used in a conveyance, a word of limitation, giving an absolute estate in fee to the grantee. Professor Wasliburn clearly and forcibly states this view in his excellent treatise, saying: '^It was at first understood that in case of such a limitation the estate was in fact 1 Scofield .•. Quinn. r,4 Miiai. 9,55 N. 882; Ilardage v. Stroopc. 58 Ark. 303. W. Rep. 745. See, also, Benson r. Mar- 307 ; Kinmer.son ;;. HuglifS, 110 Mo. 627, koe, 37 Minn. 30, 33 N. W. Rep. 38. 19 S. W. Hop. 979. 2 1 Coke, 88, 93 h. And .sec Lorin- v. » Perrin r. Blake, A Burrow, 279. 1 W. Eliot, 16 Gray, 568, 572; Mcllhiuny v. Bi. 672. Mcllhinny 137 Ind. 411, 37 N. E. Rep. ' Terrin v. Blake, 4 Burrow, 2579, 1 W . 147 148- Andrews ,-. Spurlin, 35 Ind. Bl. 672; Starncs r. IliU, 112 N. C. 1, 16 262'; Doe V. Jackman. 5 Ind. 283 ; Taney S. E. Rep. 101 1, p.r Sliepherd, C. J. V. Fahnley, 126 Ind 88, 2.') N. K. R.-p- 41'3 § 00:2.] THE HABENDUM, OR THE ESTATES CREATED. to i^o to the heirs of the grantee named ; that, though he had a rio-ht to enjoy it during life, he liad no right to cut off the de- scent by alienation ; and that when, therefore, the word ' heirs,' in the prc^gress of estates, came to be legarded as a mere teim of limitation, giving the grantee a complete ownership, with an unrestrie-ted rii;lit of alienation, it was not easy to distinguish between a case where the limitation was to one and his heirs, anil tliat where it was to him for life, and after his death to his lunrs; the effect at common law being the same in both forms of limitation."' ^ 602. Whatever may have been the grounds of the rule in its origin, there was a reason for its preservation in modern times, after the feudal reason of the prevention of frauds upon the feudal lord had ceased to exist with the feudal systtnu itself ; "and that subi^equent reason," says F(Mirne, " is the desire to facil- itate alienation by vesting the inheritance in the ancestor, instead of allow^ing it to remain in abeyance until his decease." ^ Mr. Jus- tice Blackstone also adopts the same view, saying that the reason for the preservation of the rule is "laid in a principle diametri- cally oppo.site to the genius of feudal institutions, namely, a desire to facilitate the alienation of land, and to throw it into the track of commerce one generation sooner by vesting the inheritance in tlie ancestor." ^ In America the rule has been abrogated in many States,* — the 1 2 Waslib. Real Prop. 647. laugh, 1.3 Pa. St. 344, 53 Am. Dec. 474, - Fearne, Rem. § 421. Gibson, C. J., says: "Though of feudal 2 Perrin v. Blake, 4 Bunow, 2579, 1 origin, it is not a relic of barbarism, or a W. Bl. 672. In Polk v. Paris, 9 Yerg. part of the rubl)ish of the dark ages. . . . 209, 30 Am. Dec. 400, Reese, J., in vin- It has other than feudal objects, to wit, dication of the rule, says: "It is a rule the unfettering of estates by vesting the or canon of property which, so far from inheritance in the ancestor, and making being at war with the genius of our in- it alienable a generation sooner than it stitutions, or with the liberal and com- otherwi.se would be." See, al.so, Hamner mercial spirit of thion, 26 W. L. B. 113, 115, per Hunt, .1.; Connecticut Mutual Life Insurance Co. i-. Skinner, 4 Ohio C. C. 496 526; Smith v. Haukins, 27 Ohio St. 371 ; Carter v. Reddish, 32 Ohio St. 1. Oregon : 2 Annot. Stat. 1892, § 3093. Texas : The rule seems to be recognized as regards deeds. Hancock v. Butler, 21 Tex. 804 ; Hawkins v. Lee, 22 Tex. 544. But not as applied to wills. Tendick v. Evetts, 38 Tex. 275. 2 Carrigan v. Drake, 36 S. C. 354, 15 S. E. Rep. 339; Carson v. Fuhs, 131 Pa. St. 256, 18 Atl. Rep. 1017, 25 W. N. C. 230; Starnes v. Hill, 112 N. C. 1, 16 S. E. Rep. 1011 ; Cannon v. Barry, 59 Miss. 289 ; Bullard v. Goffe, 20 Pick. 252 ; Lor- ing V. I<:iiot, 16 Gray, 568. 572 ; Davis v. Hay den, 9 Mass. 514 ; Wayne v. Lawrence, 58 Ga. 15. 8 Carson v. Fuhs, 131 Pa. St. 256, 266, 18 Atl. Rep. 1017. Paxson, C. J., said: " The trustee iu this case had no active duties to perform; it is a passive, dry trust, with no interest to guard, no rights to protect. In such case, the cestui que trust is entitled to a reconveyance of the legal title ; equity will consider that done which ought to be done, and declare the legal title in Mrs. Hamilton. It then comes within the rule in Shelley's Case, and the life estate and remainder coalesce, the effect of which is to give the fee to Mrs. Hamilton." THE RULE IN SHELLEY's CASE. [^5 605. directly interferes with either the presumed or declared intention of the parties that a life estate shall vest in the first taker with a remainder over to the heirs of his body. But if the rule in Shel- ley's Case is applicable, the question of intention is foreign to the construction of the deed.^ '' The rule in Shelley's Case was never a rule of intention or of construction to reach and carry out the settlor's intention, but has been defined, as it was established, as an absolute rule of property to obviate certain difficulties that would arise in relation to tenures, if certain persons to whom the property was limited w^ere allowed to take as purchasers and not by descent." 2 It is not a rule of construction or interpretation, but a rule of property.-^ 605. This rule even overrides the expressed intention of the grantor that it shall not operate. Preston on Estates ujion this point uses the following language : " Neither the express dec- laration, first, that the ancestor shall have an estate for his life and no longer; nor, secondly, that he shall have only an estate for life in the premises, and after his decease it shall go to his heirs of his body, and, in default of such heirs, vest in the person next in remainder, and that the ancestor shall have no power to defeat the intention of the testator; nor, thirdly, that the ancestor shall be tenant for his life and no longer, and that it shall not be in his power to sell, dispose, or make away with any part of the premises, — will change the word ' heirs ' into words of purchase."* 1 Mcllhinny .. Mcllhinuy, 137 Ind. 411, not his heirs, yet they cannot as heirs take 37 N E. Rep. 147; Ridgeway .. Lan- otherwise by descent; and, to take b^- de- phear.99lnd.251; Shimer . Mann, 99 scent at all, they must take from h.m Ld 190 50 Am. Rep. 82; Fowler v. whose heirs they are, and not from h.m Black, 136 111. 363, 26 N. Iv Rep. 596; who conveyed the property and nom.- Carpenrer .. Van Olinder, 127 III. 42. 47. na.ed them to succeed m .ts owner..h.p. It 19 N E. Rep. 868; Doebler's App. 64 may be .hat U- rule has o ten been m..- Pa Sr 9 per Sharswood, J. applied, for it is a rule of law and no a In Smith .. Collins, 90 Ga. 411, 412, 17 rule of construction. It :s -t ava.lab e S E Rep 101.3, Chief Justice Bleckley to ascertain m.ent.on, but only to hx the .aid-'"In its substance the rule is not consequences of a pn^n n.tcnUon after .t arbitrary, but locrical .and apparently ne- has been ascertained. ccs,sarv in any system of law which is self- '^ Mack .. Cbamp.on. 26 W. L. Bui. consi..;ont, for" the distinction between ''^' '''' ^'^^ l^"'''"^;, ,,, .. descent and purcha.sc is radical and fnnda- ^' Baker r. Scott. 62 111 86. r ■ 1- • 1 1,. 4 1 I'rcston on Estates, p. oo.t. Aiiu mental ; and while a group of ,ndiv.,lu.il.s, 1 rcston on i.st , p though they he heirs of another, may take see Taney .. I ahnley, 126 Ind. 88. 2. N. tnou^n inej oe Hoclist.dler v. Hochstedlcr, by purchase the same as those wtio are u. "cp , VOL. I. ^§ liOG, 607.] TITK HABENDUM, OR THE ESTATES CREATED. The application of the rule to a conveyance by a father to his dano-hter, "and to the heirs of her body," is not affected by the fact th;it the conveyance was intended as a gift or advancement.^ TIio application of the rule is in no way affected by a declara- tion or r.'cital after a habendum to one for life, and upon his death "■ to his heirs and assigns forever," that the true meaning of the deed is that the grantee is " to hold only during his natural life," and upon his death "said premises to be held in fee simple by his heirs and assigns forever." The grantee under the rule takes an estate in fee simple, and not merely for life.^ 606. There is a distinction between deeds and "wills in the application of the rule in Shelley's Case. As applied to wills the rule is not allowed to override the manifest and clearly ex- pressed intention of the testator, but the intention will always be carried into effect if it can be ascertained. If the language of the will is such as to bring the case within the rule, full force and effect will be given to it ; but if it clearly appears that the testator had a meaning and intention different from the rule, this will not be allowed to frustrate his intention. This distinction between deeds and wills in the application of the rule is in accordance with the general rule applicable to the construction of wills, that the intention of the testator shall so far as possible be observed.'^ 607. The rule applies only "when the life estate is a vested freehold. A limitation to a married woman for life, and, in the event that her husband shall survive her, then to him for life, and after the termination of the life estates then to the heirs of the husband, fjives to the latter a continfjent I'emainder: and until the contingency of his survival of his wife happens, the rule in Shel- ley's Case cannot operate to vest in him an indefeasible fee ; and until this contingency happens, the husband's heirs have a contin- gent remainder in fee. expectant upon the determination of the life estate of the wife, she surviving her said husband.'* It is sufficient that the freehold in the ancestor is implied, and not created in express terms.^ 108 Ind. 506, 9 N. E. Rep. 467 ; Shimer 3 Kidgeway v. Lanphear, 99 Ind. 2.51 ; V. Mann, 99 Ind. 190, 50 Am. Hep. 82. Mcllhinny v. Mcllhinny, 137 Ind. 411, 37 1 Lane v. Utz, 130 Ind. 235, 29 JST. E. N. E. Kep. 147. Rep. 772. 4 Starnes v. Hill, 112 N. C 1, 10 S. E. - Fowler v. Black, 136 111. 363, 26 N. E. Rep. 1011. Rep. 596. , 6 -Wills V. Palmer, 5 IJiir. 2615, 2 Bl. 498 Rep. 687; Pibus v. Mitford. 1 Vent. 372. THE RULE IN SHELLEY'S CASE. [§§ 608, G09. 608. The rule applies where the limitation is to one for life, and after his death to his heirs, or the heirs of his body. Such a limitation is the same- in effect as a limitation simply to one and liis heirs, or tiie heirs of his body. It applies where the limita- tion is to one for life, with remainder to another for life, or in tail, with remainder to the heirs, or heirs of the body of the first taker ; lie has a life estate in possession, and an estate in fee simple or fee tail in remainder, expectant on the life estate in the other person. ^ The rule applies though the remainder be contingent, as where the limitation is to one for life with re- mainder to another for life, with remainder, if the first-named tenant shall die before the second life tenant, to the heirs of the iii'st named ; for he takes, in addition to his life interest in pos- session, a contingent remainder in fee simple. The rule applies also where the particular estate is for the life of another.^ A conveyance to a woman " during the term of her natural life," and " to descend " to her heirs in equal portions, is governed by the rule in Shelley's Case, and the grantee takes an absolute title in fee. " The word 'descend,' as used in the deed, means to pass from the grantee to her heirs, and is to the same effect as if it read ' to her during her natural life and to her heirs.' "' ^ The rule is the same in case the deed is to one for life, and at his de- cease " to go and pass to his heirs." ^ The rule was apj^lied where a husband conveyed to his wife "and her children and joint heirs with her and myself," and to two others named. The wife was the third wife of the grantor, by whom he had two children, and the others named wcn-e the children of the grantor by his second wife. It was held that under the rule in Shelley's Case th(? wife and the two other per- sons named in the deed tnok an estate in fee as tenants in com- mon, and that the children of the wife took nothing.'' 609. The word ''heirs ' is essential to justify the applica- tion of the rule, just as it is to create an ordinary estate in fee simple. Thus, the rule does not apply when the limitation is to such person or persons as would be entitled to take from the life 1 Feme, Ilemniiiders, 29 ; Edwards, See, however, Tyler v. Moore, 42 I'a. St. Prop, in Land, 2d cd. 378. 374, 17 Atl. Rep. 216. 2 Fcrne P>einiunders, 31, 32. •• Gonneeticnt Mutual Life Insurance 3 Taney v. Falinley, 120 Ind 88, 25 N. Co. r. Skinner, 4 Ohio C. C. .526. E. Rep. 882 ; Andrews c Spurlin, 35 Ind. ■' Rroliar v. Marquis, 80 Iowa, 49, 45 N. 262; McQueen v. Logan, 80 Ala. 304. W. lie].. 395. 409 § GlO.j THE HABENDUM, OK THE ESTATES CHEATED. tenant by doseent.^ It does not apply when tlio word " issue" or the word " cliiUh-cn " is used instead of "licirs."- It does not ii[>ply wlien iho word '' hc^irs," in the phrase "-heirs of the body," is used in tlie sense of ''children," and as a word of purcliase.^ The rule siniplv acts upon the words of inheritance, and does not affect the rules for deteruiiniiig the quantity of the estate conveyed, whether a fee simple or a fee tail.'* It does not affect the words of procreation in a fee tail. The rule operates to enlarge the estate of the ancestor, whose lieirs gencually, or the heirs of whose body, are the objects of the limitation, and who can take by descent from him and not as purchasers under the deed. It therefore has no application when the deed is to the husband for his life and that of his wife, with contingent remainder to the heirs of the body of the wife wlio may survive them.^ The heirs of the body of the wife may not be the heirs of the husband, and therefore the rule might not operate to enlarge the estate of the husband, the first taker. The rule does not appl}' unless an estate is limited to the heirs of the donee in tail. It does not apply unless it is limited to the heirs of the same person to whom the preceding estate is given ; therefore it does not apply where the conveyance is to a woman for her life, and at her death to the children born of her body, to them and their heirs forever. The children in such case would take as purchasers.^ 610. The rule does not apply where the word " heirs " is used to describe a class to take as purchasers, and not to de- scribe persons who are to take simply as heirs general or special 1 Handy v. McKim, 64 Md. 560, 572, 4 3 CarriKan v. Drake. 36 S. C. 354, 15 Atl. Rep. 125; Hofsass v. Mann, 74 Md. S. E. Rep. 339; Tyler v. Moore, 42 Pa, 400, 22 Atl. Rep. 65 ; Hardage i'. Stroope, St. 374, 17 Atl. Rep. 216; Jackson v. 58 Ark. 303. Jackson, 127 Ind. 346, 26 N. E. Rep. 897 ; 2 Gourdin r. Deas, 27 S. C. 479, 4 S. Sorden v. Gatewood, 1 Ind. 107; Doe v. E. Rep. 64 ; Wilson (?. McJunkin, 11 Rich. Jacknian, 5 Ind. 283; Andrews v. Spur- Eq. 5i7; Mellichamp v. Mellichamp, 28 lin, 35 Ind. 262, 267; Owen v. Cooper, 46 S. C. 125, 5 S. E. Rep. 333 ; Myers v. Ind. 524. Anderson, 1 Strobh. Eq.344, 47 Am. Dec. * Lehndorf v. Cope, 122 III. 317, 13 N. .537 ; Mclntyre v. McTntyre, 16 S. C. 290 ; E. Rep. 505 ; Fields v. AVatson, 23 S. C. Cannon v. Barry, 59 Miss. 289 ; Estate of 42, 47. Utz, 43 Cal. 200. In Indiana, liowcver, the "^ Williamson r. Mason, 23 Ala. 488. rule applies where the limitation is to the ^ Smith v. Collins, 90 Ga. 41 1, 17 S. E. "issue of the body" instead of "heirs of Rep. 1013. the body." King v. Rea, 56 Ind. 1 ; Lane V. Utz, 130 Ind. 235. 29 N. E. Rep. 772. r-oo THE RULE IN SHLLLEY's CASE. [§ 610. of the grantee.^ Tlius the rule does not apply where the limi- tation is to the ''present heirs," or the "heirs now living," of the grantee, or his "■ apuaient heirs." ^ It was held not to apply where the deed was to a woman to hold during her natural life, " and after her death to be equally divided between the lawful heirs of her body." These words were construed to be words of purchase and not of limitation.'^ " The underlying question in all controversies, when it is con- tended that the rule in Shelley's Case applies, is, are the words 'heirs,' 'heirs of the body,' or 'issue,' to be construed ns words of limitation or words of purchase? If the former, the rule of Shelley's Case applies, denying any estate to the 'issue,' 'heirs of the body,' but enlarging the estate of the life tenant to a fee simple or fee conditional, as the case maybe."* The technical words of limitation may be explained by words added thereto which show that the words of limitation were not used in their technical sense, but as words of purchase.^ A conveyance to the grantor's children named, " and the heirs of their bodies," contained after the words of grant the following clause : " Meaning and intending by this conveyance to convey to my said children the use and control of said real estate during their natural lives, and at their death to go to their children ; should they die without issue, to their legal representatives." The habendum was to their heirs and assigns forever. It was held that the word " heiis" in the habendum clause meant the children of the grantees, and that the children of the grantor took only a life estate, and their children took the remainder in fee.6 The rule does not apply where the limitation is to tlie heirs or issue of the first taker and their heirs, for in such case there is 1 Williamson v. Mason, 23 Ala. 488; 50 Am. Hep/Sa ; Fountain County Coal Norris r. Ilenslev, 27 Cal. 439 ; Baker v. Co. r. Ikcklehtimer, 102 Ind. 7f>, 1 N. E. Scott 62 111. 86. ^^t'I>- 202, .'J2 Am. Kop. 64.') ; Carpenter v. 2 Fountain County Coal Co. ,•. Borklc- Van Olin.l.T, 127 111. 42, 1!) N. E. Hep. heimer, 102 Ind. 76, I N. E. Kep. 202, .'52 868; Ilatremnn r. IlMpeman, 129 111. 164. Am, Bcp. 64.5. 21 N. E. IVp- 8'■^• 3 Fields V Watson, 23 R. C. 42 Sec, '^ Fountain County Coal Co. v. Beckle- however, Moor- r. 'Brooks, 12 Gratt. hein.er, 102 Ind. 76. 1 N. E. Bep. 202. 52 J3r, Am. liep. 64.') ; Blake i-. Stone, 27 Vt. •» Carri^an v. Drake, 36 S. C. 354, 366, 475. 15 S. E. Hep. 339 ; McCowu v. Kin-, 23 « Griswold v. Hicks, 132 111. 494, 24 N. S. C. 232 ; Shimer v. Maun, 99 Ind. 190, E. Kep. 63. 501 § (ill.] THK IIABKXDUM, OR THE ESTATES CREATED. evinced a puri^osf to cre.ite in the heirs of tlie first taker an estate in fee simple.' Till' mil' (liH's not apply where there is no precedent estate for life to the first taker, as where the conveyance was to a person "for the benefit )f the heirs of his body.''^ It applies only where the freehold estate to the first taker and j the remainder to his heirs, or the lieirs of liis body, are created _ by the same instrument.'^ V. Estates Tail. 611. An estate tail is an estate of inheritance limited, not to the grantee's heirs in general, but to heirs of his body. To create an estate in tail it is essential to use not merely the word " iieirs," but some word indicating the body from which the heirs are to come, or some word of procreation from a particular person.** While the words of limitation generally used are " heirs of his body," other equivalent words, which clearly make the limitation to the heirs of the body of the grantee, are sufficient. When the grantee in tail is alone mentioned as the person from whose body the heirs are to be derived, the estate is in tail general. When both the parents from whose bodies the heirs must be derived are specified, as where the grant is to one and the heirs of his body by a woman named, the estate is a tail special. The estate may be confined to heirs male or heirs female, and then the descent must be traced through heirs male in the one case, or heirs female in the other, and the estate is in tail male or tail female. At the common law, before the statute of Westminster^ known as de donis conditionalibus, such an estate was one in fee simple on condition that the grantee should have issue of the specified class. When this condition was fulfilled the estate became a fee simple, dischaiged of the condition, so that the donee might freely convey the land.^ The statute ordained that " the will of a donor, according to the form of the deed of gift manifestly expressed, be henceforth observed ; so that they to whom a tenement was given ^ Mclntyre v. Mclntyre, 16 S. C. 290 ; - McCown v. King, 23 S. C. 232. Lemacks v. Glover, 1 Rich. Eq. 141 ; Dott ^ Cannon v. Barry, 59 Miss. 289. V. Cunnington, 1 Bay, 4.53 ; Myers r. An- ^ Adams v. Koss, 30 N. J. L. 505, 32 derson, 1 Strobh. Eq. 344, 346, 47 Am. Am. Dec. 2-37. Dec. 537; Fields v. Watson, 23 S. C. 42, " 13 Kdw. I. 1285. 56, per Mclver, J. 6 § 154. 502 ESTATES TAIL. [§ 612. under such condition shall have no power to alien the tenement so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert to the donor or his heirs, if issue fail, or there is no issue at all." The effect of the statute was, not to create a new estate, but to prevent the dis- cliarge of the condition by the donee's having issue of the pre- scribed class. The fee was preserved to such issue while there existeJ any to take it, and when there was a failure of such issue the reversion was secured to the donor. 612. An estate tail descends only to the heirs of the pre- scribed kind who issue from the body of the person to whom the estate is first granted, and it ceases when such heirs are extinct. The estate " lasts so long as there exists issue of the prescribed class ; so long as there is, as it were, a stream flowing from the fountain." ^ On the failure of such issue the estate reverts to the original donor or his heirs, unless the entail has been barred in the manner provided by statute, or by a recovery at common law. This remedy for barring an entail, an invention of ecclesiastical subtlety, came into use about the beginning of the sixteenth cen- tury, and not only restored the power of alienation, but enabled the tenant in tail to prevent a reverter to the lord. By it an es- tate tail was converted into one in fee simple. While in theory an entail secures a succession in perpetuity to the oldest son, and to the oldest son of the oldest son,^ in effect there is no such suc- cession. Conthiuous entails ceased in England under the opera- tion of recoveries at common law ; and in this country, where they have not been wholly abolished by statute, under the opera- tion of statutes enabling the tenant in tail to bar the entail by 1 Goodeve's Real Prop. 3d ed. 58. laws of descent was, because the descent 2 Wight V. Thayer, 1 Gray, 284. In of such estates was not provided for under Price V. Taylor, 28 Pa. St. 9.5, 105, 106, our old statutes, and tlierefore the old Lowrie, J., said: "If it was an error to common law alone f(inii>hed tiie rule fur admit the eldest son as the heir to an ihem. . . . The judiciiil sidoption of the e^ta;e tail general, under our law, it was English law of jirimogeniture in estates perhai)S an inevitable one, for, inheriting tail has entirely ceased to have any su])- all our forma of wills and convevances, port in our law.s anil customs, and is and (if le"-al practice, from England, we now jdainly iiicompatihle with them all. could not, if we would, at once build up Therefore we can no longer ])resunie, a jierfcetly consistent system of legal from general words of entailment, that a principles founded on our new circnm- lineal descent according to the English stances. . . . The reason why estates t.ail law is intended." descended to the eldest son under our old 503 § 613.] THE HABENDUM, OR THE ESTATES CREATED. deed, continuous entails have ceased to exist. There may be tem- porary entaihiients where estates tail have not been converted into other estates by statute, but, owing to the facility with wliich they may be barred, they are seldom of long duration. 613. In the United States the statute de donis -was recog- nized in the Colonies and original States as being in force, ^ ex- cept in South Carolina, where the fee conditional as at common law existed from the first.^ There the heirs of the body take per formam doni, but subject to the debts of the first taker.^ Recoveries for barring entails were adopted in several of the colonies, and generally continued in use till more effectual rem- edies were secured by statute* But now in many States, by statute, estates tail have been converted into estates in fee simple.^ In those States in which statutes in terms convert estates tiiil into estates in fee simple, the words of procreation used in deeds, which without tiie statute would have created estates tail, are to be wholly disregarded, 1 Allin V. Bunce, 1 Root, 96 ; Giddiugs V. Smith, 15 Vt. 344, 350; Hall v. Vau- degrif t, 3 Biun. 374 ; Pollock v. Speidd, 17 Ohio St. 439, 447 ; Corbin v. Healy, 20 Pick. 514, 517. 2 Wright V. Herron, 5 Rich. Eq. 441 ; Murrell v. Mathews, 2 Bay, 397 ; Archer V. Ellison, 28 S. C. 238, 5 S. E. Rep. 713. 8 Burnett v. Burnett, 17 S. C. 545. * Jackson v. Van Zandt, 12 Johns. 169 ; Baker v. Mattocks, Quincy (Mass.), 69 ; H:>wley V. Northampton, 8 Mass. 3, 34; Lyle V. Richards, 9 S. & R. 322; Den v. Smith, 10 N. J. L. 39. ° Alabama: Code 1886, § 1825; Mar- tin V. McRee, .30 Ala. 116; Sullivan v. McLaughlin, 99 Ala. 60, 11 So. Rep. 477. California : Civ. Code, § 763 ; Barnett v. Barnett, 104 Cal. 298, 37 Pac. Rep. 1049. Florida: R. S. 1892, § 1818. Georgia: Code 1882, §2250; Whatley v. Barker, 79 Ga. 790, 4 S. E. Rep. 387, except where the term " heirs of the body " is used as a limitation over after the death of the first taker ; Wilkerson v. Clark, 80 Ga. 367 ; Ewing V. Shropshire, 80 Ga. 374, 7 S. E. Rep. 554. Indiana : 2 R. S. 1894, § 3378 ; Mcllhinney v. Mcllhinnev, 137 Ind. 411, 504 37 N. E. Rep. 147; Allen v. Craft, 109 Ind. 476, 9 N. E. Rep. 919, 58 Am. Rep. 425. Kentucky : G. L. 1894, § 2.343 ; Mc- Gennis v. McGennis (Ky.), 29 S. W. Rep. 333 ; Short v. Terry (Ky.), 22 S. W. Rej). 841. Michigan: Annot. Stats. 1882, § 5519. Minnesota: G. S. 1894, § 4364. Missis- sippi: Annot. Code 1892, § 2436; Jordan y. Roach, 32 Miss. 481. Montana: Codes 1895; Civ. Code, § 1212. New Hamp- shire: Stat, of 1789; Jewell v. Warner, 35 N. H. 176; Dennett v. Dennett, 40 N. H. 498, 500, 43 N. H. 499. New York : R. S. 1889, p. 2431. North Carolina: Since January 1, 1877, Code 1883, § 1.325. North Dakota: Comp. L. 1887, §2736. Oklahoma: G. S. 1893, §§ 3700, 3701. Pennsylvania: Brightly's Purdon's Dig. 1894, p. 810, § 5, act of April 27, 185.5. The effect of the act is to repeal the stat- ute de donis, and to revive the common law as it previously existed. Nicholson V. Bettle, 57 Pa. St. 384; Price v. Taylor, 28 Pa. St. 95. South Dakota: Comp. L. 1887, § 2736. Tennessee : Code 1884, §2813. Virginia: Code 1887, §2421. West Virginia: Code 1891, ch. 71, §9. Wisconsin: Anuot. Stats. 1889, §§ 2027, 2028. ESTATES TAIL. [§ 614. leaving the limitation simply to the heirs of the grantee and cre- ating in him a fee simple. ^ In several Stales the first donee in tail takes a lite estate, and the heirs of the body of such donee take as purchasers, the remainder in fee simple.^ The statutes of several States enable the tenant in tail to bar the entail by a conveyance in fee simple.'^ The disentailing deed may be either a conveyance to a purciiaser, or to a person to hold to the use of the tenant himself and his heirs as tenants in fee simple. Such deed may be either a warranty deed or a quit- claim. The estate may be taken for the debts of the tenant in tail in possession, either upon execution during his life, or sale by license of court after his death.* 614. To create an estate tail the word " heirs " is as essen- tial as it is to create a fee simple.'^ In general no other word 1 Andrews i'. Spurlin, 35 Ind. 262 ; Tipton c. La Rose, 27 lud. 484 ; Kirk v. Furgerson, 6 Cold. 479 ; Singletary v. Hill, 43 Tex. 588 ; Tate u. Tally, 3 Call, 354. - Arkansas: Dig. of Stats. 1884, § 643. Colorado : Anuot. Stats. 1891, § 432. Con- necticut : G. S. 1888, §2952. Illinois: K. S. 1889, eh. .50, § 6; Lehndorf v. Cope, 112 111. 317, 13 N. E. Rep. .505. Mis- souri: R. S. 1889, § 8838; Farrar v. Christy, 24 Mo. 453 ; Phillips v. La Forge, 89 Mo. 72; Reed r. Lane, 122 Mo. 311, 26 S. W. Rep. 957 ; Godman v. Simmons, 113 Mo. 122, 20 S. W. Rep. 972 ; Emmer- son V. Hughes, 110 Mo. 627, 19 S. VV. Rep. 979; Bone v. Tyrrell, 113 Mo. 175, 20 S. W. Rep. 796 ; Wood v. Rice, 1 03 Mo. 329, 1 5 S. W. Rep. 623 ; Clarkson v. Clarkson (Mo.), 28 S. W. Rep. 446. New Jersey: 1 R. S. 1877, p. 299, § 11, re- mainder to children. Statute passed in 1S20. Havens v. Seashore Land Co. 47 N. .1 Eq. 365, 368, 20 Atl. Rep. 497. New Mexico: Comp. L. 1884, § 1423, re- mainder to chiMren. Ohio: R. S. 1892, § 4200, remainder to issne ; Pollock i'. Speidel, 17 Ohio St. 439. Vermont: G. S. 1880, §1916; Thompson v. Carl, 51 Vt. 408. 3 Delaware: R. Code 1893, p. 631, ch. 83, § 27. Maine : R. S. 1883, ch. 73, § 4 ; VVilley v. Haley, 60 Me. 176. Maryland : Pub. G. L. 1888, art. 21, § 24. Massa- chusetts : P. S. 1882, ch. 120, § 15, act of March 8, 1792; Williams v. Hichborn, 4 Mass. 189; Whittaker v. Whittaker, 99 Mass. 364. Rhode Island: P. S. 1882, ch. 172, § 3 ; Cooper v. C-oopcr, 6 R. I. 261. In Maine and Massachusetts, where lands are held by one per.-on for life, with vested remainder in tail in another, the tenant for life and remainder-man may bar the entail by a conveyance in fee sim- ple. Mass. P. S. ch. 120, § 16 ; Me. R. S. ch. 73, § 4. ^ Coombs V. Anderson, 138 Mass. 376; Allen r. Ashley School Fiinrl, 102 Mass. 262, 265; Cuffce v. Milk, 10 Met. 366; Williams v. Hichborn, 4 Mass. 189; Wil- ley V. Haley, 60 Me. 176. ^ Co. Litt. 20 a ; Seagooii r. Hone, Cro. Car. 366; Wheeler v. Duke, 1 Cr. & .M. 210 ; Adams v. Ross, 30 N. J. L. .505, 82 Am. Dec. 237 ; Sharswood & Hudil. Lead. Cas. in Real Prop. 1 ; Bcecher v. Hicks, 7 Lea, 207; Mcllhiiiney v. Mclihinney, 137 Ind. 411,37 N. E. Rep. 147; Burns V. Wce.sner, 134 Ind. 442, 34 N. E. Rep. 10; King v. Rea, 56 Ind. 1, modified; Fletcher v. Fletcher, 88 Ind. 418, over- ruled ; Bodine v. Arthur, 91 Ky. .53, 14 S. r)Or) § 01."). 1 THK HABENDUM, OK THE ESTATES CREATED. can take its plaeo.^ Thus a grant to one and his children or oiYspriiiy;, or issue of his body, or to a man and liis seed, or to a woman and tlie issue of her body, or to her and her chiKh-eu bet'-otten of her present husband, creates an estate for life only, in the first taker, as the proper word of inheritance is wanting. Tlie expression " issue of the body " is not synonymous with '• heirs of the body." The former expression embraces all descendants, and is ap{)licable to them as well in the lifetime of the parent as after his death ; while " heirs of the body " may embrace only a portion of the descendants, and does not embrace even them as long as the parent is living.^ In an instrument of entailment, the word " children " is rarely held synonymous with "heirs of the body."^ An equitable estate in fee tail arises where land is granted to a trustee for the use of a beneficiary and the heirs of his body.* A limitation to the heirs of the body of one to whom no pre- ceding estate is limited passes an estate tail in such heirs as donees ; and the estate will descend as if the limitation had been to such person and the heirs of his body.'^ But a deed to the chil- dren of a person named, without adding "and their heirs," cannot operate to vest in them an estate in fee simple.^ 615. A deed to one and " the heirs of his body " creates an estate tail by force of the technical words used, unless there is something to show that "children" are meant by the phrase " heirs of his body." These technical words must have their nat- ural and ordinary signification, as words of limitation, unless there is something in tlie deed to make it clear that they are not used for the purpose of limitation, but to designate aclass as pur- chasers." The elfect of the technical words " heirs of her body " W. Rep 904; Bradford v. Griffin, 40 S. liep. 623; Durant v. Muller, 88 Ga. 251, C 468, 19 S. E. Rep. "6; May r. Ritchie, 14 S. E. Rep. 612. 63 Ala. 602. ^ Co. Litt. 26//; Moore v. Simkin, .31 1 Except l>y force of statute, as in Eng- Ch. D. 95 ; Fletcher v. Fletcher, 88 Ind. land, where l)y the Law of Property Act 418. of 1881, 44 & 45 Vict. ch. 41, § 51, the '■ Mattocks v. Brown, 10.3 Pa. St. 16. estate may lie created by a litnitaiion ''in " Siayton v. Blount, 93 Ala. 575, 9 So. tail." Rep. 241. " Unless the person named as 2 Bradford v. Griffin, 40 S. C. 468, 19 ancestor is deceased at the date of the con- S. E. Rep. 76, per Richardson, J. veyance, or unless there are other expres- 3 Cannon v. Barry, 59 Miss. 289, 300, sions in the instrument descriptive of the per Chalmers, C. J. persons intended to be named aspjrantees, ^ Wood V. Kice, 103 Mo. 329, 15 S. W. the words ' heirs of the body ' are too in- 506 ESTATES TAIL. [§ 616. cannot be controlled by evidence aliunde that the grantor did not intend to create an estate tail, but only a life estate in the grantee with remainder to her children. Evidence of his intention which r aid 2 Hirr & J "30 235,3 Am. Dec. bodies," Johnson y. Johnson, 2 Met (Kn.) .545- Handv ,: McKim,' G4 Md. 560, 571, 331 ; "and her body heirs," McGi...m v. 4 Ak Rep.- 125. McCinnis (Ky.), 29 R. W. Rep. 333 ; Pres- cott V. Prescott, 10 B. Mon. 56. 507 ^ ulT.] llir. IIAUHXDU.M, OR THE ESIAILS CKl.ATl.D. lu'irs of the body of the grantee, though in a will greater latitude is allowed in arriving at the intent of the testator. Therefore a ♦M-ant to one for life, and to "his oldest male heir at the time of the decease " of such life tenant, does not create an estate tail in the first taker, but a life estate in In'm, with remainder in fee simple to his oldest male heir living at his decease. ^ In a will, however, the words " male heirs " may be taken as equivalent to " male heirs of the body of the devisee." ^ So, also, a devise to a person and his "children," he having no chihhen at the timi', will be held, prima facie, to create in such devisee an estate tail.^ In a will the word "issue" prima facie means " heirs of the body," and is a word of limitation and not of pur- chase, unless the intention as manifested by the whole will is that the word shall have a less extended meaning.* 617. The term "heirs of the body" may, however, be used. to designate the children of the grantee, and in such case the children will take as purchasers, either in common with the parent, or in remainder after a life estate in the parent, in accord- ance with the intention of the grantor. " When it appears from the context that the words 'heirs' or 'heirs of the body' are intended to have a broader or more popular meaning than is accorded to them in technical usage, courts will lay hold of any expressions in the instrument indicative of such intention, and will give to the words the meaning which it appears they were intended to convey. Thus, where the phrases ' heirs of the body ' and 'children ' are used as synonymous, and it is clear that the tech- nical phrase is not used for the purpose of limitation, but as a description of a class of persons, the ascertained intiaition of the maker of the instrument will prevail, the two phrases will be held to mean the same thing, and the words ' heirs of the hotly ' will be given effect as words of purchase." ^ Thus, where a 1 Smith V. Collins, 17 K. I. 432, 22 Atl. 507; Shalters v. Ladd, 141 Pa. St. 349, 21 Rep. 1018. Atl. TJep. .596; Renoehl v. Shirk, 119 Pa. 2 Roddy V. Fitzgerald, 6 H. L. Cas. 823 ; St. 108, 113. Cooper V. Cooper, 6 R. I. 261 ; Jillson v. ^ Slayton v. Blount, 93 Ala. 575, 9 So. "Wilcox, 7 R. I. 515; Sutton v. Miles, 10 Rep. 241. And see Darden v. Burns, 6 R. I. 348. Ala. 362; Williams v. Graves, 17 Ala. 8 Wild's Ca.se, 6 Rep. 16ft; Clifford y. 62; Warn v. Brown, 102 Pa. St. 347; Koe, 5 App. Cas. 447. Ware v. Richardson, 3 xMd. 505, 56 Am. * Piirkhurst r. Hanower, 142 Pa. St. Dec. 762. 432, 21 Atl. Rep. 826, 24 Am. St. Rep. .508 ESTATES TAIL. [§ 617. father, '• in consideration of my affections, and the further consid- eratimi of the support and well-being of my daughter and her children," made a deed to her " and to her bodily heirs, to liave and to hold to her and her bodily lieirs for their use and benefit forever," it was held that the deed vested the title in common in the daughter and her children.! Where a deed to the grantor's children "and the heirs of their bodies " contained the further statement, '^Meanino- and intend- ing by this conveyance to convey to my said children the use and control of said real estate during their natural lives, and at their death to go to their childi-en," it was held that this statement clearly showed that the word " heirs " was not iised in its legal sense as a word of limitation, but as meaning cliildren who would take the remainder, after the life estates, in fee.^ " Whenever the words ' children ' and ' heirs of the body ' are indiscriminately used to designate remainder-men, they have been regarded as words of purchase designating a class of persons who were to take on the expiration of the jiarticular estate, — not frum the tenant of that estate, but from the donor, — a different intention not being clearly indicated." ^ A conveyance to a woman for life, and after her death to be equally divided between the heirs of her body, does not create an estate tail, but a life estate in the woman with remainder to her children. The language indicates a division, and an equal 1 Wikle v. McGraw, 91 Ala. 631, 8 So. generations of their descendants, — a jiur- Rep. 341. McClellan, J., deliveriuj,' tiie pose in no wise foreshadowed in the piem- judgment, said : "The consiiierations for ises of the instrument." Citinj; Fellows the present deed are dedared to be the v. Tann, 9 Ala. 999 ; Powell v. Glenn, 21 {irantor's ' affections ' for and ' the support Ala. 4.58 ; Williams v. McConico, 36 Ala. and well-beinj;: of his daughter and her 22; Kotiertson v. Johnston, 36 Ala. 197; children. It is not reasonable to suppose May v. Ritchie, 6.5 Ala. 602. that the grantor, moved solely by his af- - Gri.swolil r. Hicks, 132 111. 494. 24 N. fections fur his daughter and her children, E. Rep. 63. See, also, Urich's Appeal, 86 and evidencing, in his decbiration of the Pa. St. 386, 27 Am. Rep. 707. motives which actuated him, his jiurpose ^ May v. Ritchie, 65 Ala. 602, per to provide for her and their support and Rricknell, C. J., citing Dunn c. Davis, 12 weil-being, and no other purpose what- Ala. 135 ; Sheplierd r. Nabor>, 6 Ala. 631 ; ever, should nevertheless in the body of Twelves v. Nevill, 39 Ala. 175; Holjert-. the deed not only have failed to make pro- son v. Johnston, 36 Ala. 197; Williams vision for the present support and well- v. McCouico, 36 Ala. 22; Warn v. Brown, being of his grandchildren, but, instead, 102 Pa. St. 347. See, also, Greer r. Pate, undertook to make provision for distant 85 Ga. 552, 11 S. E. Rep. 869. 50'J § 61 S.] THE HAREXDUM, OR THE ESTATES CREATED. division, luul when tliis is made tlie operation of the deed is ex- hausted. This is incompatible with an estate tail.^ 618. In those States where by statute estates tail are de- clared to be estates in fee simple, there is a disposition to construe the words of limitation as meaning children. Al- though tlie hmguage appears to create an estate tail, yet, if any- other construction can be adopted without distorting the mean- ing of the words, the grantor will not be deemed to have intended to create such an estate.^ Thus a deed to a married woman, " and to the heirs of her body by " her husband named, will be held to create either a joint estate in the mother and her children, or a life estate in the mother with remainder to her children. A voluntary deed by a husband of substantially all his property to his wife, having children by himself and a former husband, to hold to her " and the heirs of her body by myself as husband," especially excluding rights of inheiitaiice of her heirs by any other person, does not create an estate tail, the children of his body being purchasers. The court say: "The language in the deed, 'heirs of her body by myself as husband,' unrestricted by any other terms of the deed, and in the absence of living chil- dren of the wife by the grantor, would create an estate tail special at the common law, upon which our statute would operate. But it being evident that the word 'heirs' is used as the equiva- lent of ' children,' and there being living children of the grantor by his wife, at the time the deed was executed, the terms em- ployed in the deed and quoted above must be construed, not as words of limitation and inheritance, but as a description of a class of persons to take under the deed as purchasers, and the language is sufficiently definite and certain to be opei'ative for that purpose." ^ ^ Herriug v. Rogers, 30 Ga. 615. second part and their heirs," was held to 2 Brann v. Elzey, 83 Ky. 440 ; Tucker create a life estate only in the woman, V. Tucker, 78 Ky. 503, where the deed was with a contingent remainder to the chil- to a married woman and "the heirs of" dren desciibed. her husband; Fletcher v. Tyler (Ky.), 17 '^ Sullivan v. McLangblin, 99 Ala. 60, S. W. Rep. 282, where the word "heirs" H So. Rep. 447,449, per Thornton, J. was declared to be used in the sense of May v. Ritchie, 65 Ala. 602 ; Slayton v. "children;" Hodges v. Fleetwood, 102 Blount, 93 Ala. 575, 9 So. Rep. 241 N. C. 122, 9 S. E. Rep. 640, where a deed Wiklc v. McGraw, 91 Ala. 631, 8 So. Rep, to a married woman for life, "then to de- 341 ; Robertson r. Johnston, 36 Ala. 197 scend to her heirs, the children of" her Williams v. McConico, 36 Ala. 22 ; Wil- hu.sband, habendum to the " party of the Hams v. Graves, 17 Ala. 62; Darden v. 510 Burns, 6 Ala. 362. CHAPTER XXI. CONDITIONS PRECEDENT AND SUBSEQUENT. I. How defined and created, 619-627. II. Determinable or qualified fee, 628- 6.31. III. Condiiions subsequent not favored in law, 632-648. IV. Not implied from the purpose of the grant, 649-657. V. Void conditions, 658-677. VI. Performance and forfeiture, 678- 695. VII. Waiver of conditions, 696-707. VIII. Reentry for forfeiture, 708-732. I. Hoiv defined and created. 619. Conditions are either precedent or subsequent. A con- dition in a deed is a qualification of the estate granted. The con- dition is precedent when it must be performed before the estate can commence, and it is subsequent when it is to be performed after the estate has vested in the grantee. The former fixes tlie beginning, the latter the ending of the estate.^ The same tech- nical words of condition are appropriate to create either a con- dition precedent or a condition subsequent. Whether tlie condi- tion be one or the other is a question of intention to be gathered from the whole instrument.^ If the thing required to be done does not necessarily precede the vesting of the estate in the grantee, but may accompany it or follow it, and may as well be done after as before the vesting of the estate ; or if, from the nature of the act to be performed and the time required for its performance, it is evidently the intention of the parties that the estate shall vest, and the grantee perform" the act after taking the condition is subsequent.^ smith V. Fellows, 7 N. Y. 401 ; Osgood v. possession, — 1 California: Civ. Code, §§ 708, 1110. Idaho: R. S. 1887, § 2932. North Da- kota and South Dakota : Comp. Laws 1887, §§ 2713, 3429. 2 Finlay v. King, 3 Pet. 346; Van Home r. Dorrance, 2 Dall. 304, 317; Jones V. Chesapeake & O. R. Co. 14 W. Va. 514; Rogan j; . Walker, 1 Wi.'*. 527; Martin v. Ballou, 13 Barb. 119; Black- AI)l)ott, 58 Me. 73 ; Brannan r. Mesick, 10 Cal. 95; Mesick r. Sunderland, 6 Cal. 297 ; Shinn v. Roberts, 20 N. J. L. 435, 43 Am. Dec. 636; Chapin v. School Dist. 35 N. H. 445 ; Rnley v. Umatilla Co. 15 Orcg. 172, 13 Pac. Rep. 890. a Finlay v. King. 3 Pet. 346; Parker V. Nicbo's, 7 rick. Ill ; Underbill v. Sara- 511 § 020.] CONDITIONS PRECEDENT AND SUBSEQUENT. Whether ;i condition is to be construed to be precedent or sub- sequent is always a question of intent, and it is immaterial where the clause creating the condition is placed in the deed ; the ques- tion, without regard to locality, always being whether the thing is to happen before or after the estate is to vest.^ As declared in the Code of Georgia,^ the law inclines to construe conditions to be subsequent rather than ])recedent, and to be remediable by damages rather than by forfeiture. 620. The title under a deed creating a condition subsequent vests in the grantee, and remains in him until it is divested by the entry of the grantor;'^ but in a condition precedent the title does not vest until the act which is made the condition is performed. In the one case the title vests before the condition is performed, and in the other it does not vest at all unless the €ondition is fii'st performed.'^ Where a conveyance is made and accepted upon this express condition, that the grantor reserves the right to live on the land until his death, and provides that his minor children shall be sup- ported out of the proceeds thereof until each shall have received a certain sum, and that the grantee shall pay to each of th(> minor children a certain sum on certain dates, and that, when the grantee shall have performed the conditions expressed, the legal title to the land shall vest in him absolutely, a condition subse- quent is created. 5 A conveyance of a farm from parents to a daughter, " not to become absolute until the decease " of both grantors, "and then only on this condition,'' that the grantee " shall deliver to the to;?a & W. R. Co. 20 Barb. 455, per Allen, J. ; Tallman v. Snow, .35 Me. 342 ; Piatt V. Piatt, 42 Conn. 330; Burnett v. Strong, 26 .Mi>s. 116; Bell County v. Alexander, 22 Tex. 350. 1 Earle v. Dawes, 3 Md. Ch. 230, per Johnson, Ch. ; Shinn v. Roberts, 20 N. J. L. 435, 43 Am. Dec. 630. 2 Code 1882, § 2295. 3 Spofford I'. True, 33 Me. 283, 54 Am. Dec. 621 ; Shattnck v. Hastinjis, 99 Mass. 23; Gulf, &c. Ry. Co. v. Duiiman, 74 Tex. 26.5, 11 S. W. Rep. 10'.)4 ; Lud- low )-. New York, &e. R. Co. 12 Barb. 440; .Memphis, &c. R. Co. v. Neighbors, 51 Miss. 412 ; Spect v. Gregg, 51 Cal. 198 ; 512 Front Street, &c. R. Co. v. Butler, 50 Cal. 574. * Finlay v. King, 3 Pet. 346 ; Chute v. Washburn, 44 Minn. 312, 46 N. W. Rep. 555 ; Jones v. Chesapeake & O. R. Co. 14 W. Va. 514. 5 Bank v. Stark (Cal.), 33 Pac. Rep. 531. The court said: "In this reserv.a- tion we see nothing to indicate that they intended to retain the title in themselves during their lives. On the contrary, it would seem from the lanj;uage used that they intended to pass the title at once to the grantee, subject to the conditions named." Citing Hihn v. Peck, 30 Cal. 280. HOW DEFINED AND CREATED. [§ 621. grantors or either of them annually, during their or either of their natural lives, one third of the product" of said land, is a conveyance upon a condition subsequent, for the language im- plies that an estate is to pass by the conveyance ; otherwise it seems inconsistent to say that the conveyance shall not become absolute until the condition shall be performed. ^ 621. A grant upon a condition precedent passes the estate only upon the performance of the condition.^ A condition that the estate shall not vest, until or unless the grantee shall pay a specified sum before a day named, is a condition precedent to the vesting of any estate, and time is an essential part of the con- tract.^ A deed recited that the grantor was anxious to secure to the grantee his undivided interest in certain land upon condition that, during the life of the grantor, he was to retain and exercise full and complete control over the property ; and in consideration of the premises thus recited, and of natural love and affection, the grantor conveyed the property to the grantee, upon condition, nevertheless, that he, the grantor, died before the grantee, and not otherwise, with habendum to the grantee and his heirs, subject to such condition. The grantor survived the grantee. It was hekl that this was clearly a condition precedent, and, not being fulfilled, nothing passed by the deed.* Where one conditionally gave a tract of land to his son by an instrument which reserved to the donor not only the rents, issues, and profits of the land while he lived, but which also reserved to him the right to dispose of the land during his lifetime, it was competent for him thereafter to bequeath to another the use of the land, and the rents and profits of the same, for a period of 1 Drew I'. Baldwin, 48 Wis. 529, 4 N. conveyance from the grantor or liis suc- W. Rep. 576. cessors, for the property diily acknow- - California: Civ. Code, § 14.36. Geor- ledf.^ed for record, li. S. 1887, § 2932. See, gia: Codi; 1882, §2295. North Dakota also, Borst r. Simpson, 90 Ala. 373, 7 So. and South Dakota: Comp. Law.s 1887, Rep. 814; Bennett v. Culver, 97 N. Y. §3429. Oklahoma: G. S. 1893, ch. 82, 250. § 10. In Idaho, however, it is provided ^ Borst v. Simpson, 90 Ala. 373, 7 So. that an instrument purporting to be a Rep. 814. See Rutland v. Chesson, 98 grant of real property, to take effect upon Ala. 435, 13 So. Rej). 606 ; Tennessee, &c. condition precedent, does not pass the R. Co. v. East Alabama Ry. Co. 73 Ala. estate upon the performance of the con- 426 ; Winnepi.seo^ee Paper Co. v. Katon, dition. Such instrument is an executory 65 N. H. 13, 18 Atl. Rep. 171 ; Wilson v. contract for the conveyance of the prop- Gait, 18 111. 43. erty. Upon compliance with the condi- ■* Earle i;. Dawes, 3 Md. Ch. 230. tion, the grantee i.s entiiled to a grant or VOL. I. 513 ^ C)22.] CONDITIONS PRECEDENT AND SUBSEQUENT. time exteutliiig two yeurs after his deatli. The transfer to his son was not to be ell'eetive till the donor's death, and not then if lie made oilier disposition of the property during his lifetime.^ A condition which prevents the full benefieiary title from vesting in the grantee until its performance does not necessarily render it a condition precedent. Thus a condition that after the grantor's death the grantee shall pay a third person a certain sum of money is construed to be a condition subsequent and not a condition precedent.^ 622. A condition precedent must be literally performed ; and even in equity an estate will not vest where, by reason of a condition precedent unperformed, it will not vest at law.^ Where the owner of land which had been used for some years for a cemetery conveyed it to a city for a nominal consideration, provided the city should obtain authority from the legislature and remove the dead within a certain time, and use the land for an ornamental square, or for the erection of public buildings, it was held that the removal of the bodies and the abandonment of the land for cemetery purposes were conditions precedent to the vesting of the title.* Where a day is appointed for the payment of money for a thing to be done, if such day is fixed beyond the time when the act is to be done, the performance of the thing which is the con- sideration for the payment is a condition precedent to the payment of the money .'^ Stipulations to do certain things within a given time, in consid- eration of the payment of money, will not be construed as condi- tions precedent unless the express language of the condition re- quires such construction.^ A condition that, if the purchaser failed to pay for the property in instalmciuts as provided, it should be delivered back and disposed of to pay the price, was held not to be a condition precedent, but that the property passed immedi- ately with a trust in the nature of a vendor's lien for the payment of the price.^ 1 Pennelly.Felch(Kans.),39Pac. Rep. * Stockton v. Weber, 98 Cal. 433, 33 1023. Pac. Kep. 3.32. 2 Weinreich r. Weinreich, 18 Mo. App. ^ Houston v. Spruance, 4 Har. (Del.) 364. 117. •* 4 Kent Com. 12.5 ; City Bank v. '^ Front Street, &c. R. Co. v. Butler, .50 Smith, 3 G. & .7. 20.5, 281; Earle v. Cal. 574 ; Tipton i>. Feitiier, 20 N. Y. 423, Dawes, 3 Md. Ch. 2.30, 233. 432. 514 ■? Cay ton v. Walker, 10 Cal. 450. HOW DEFINED AND CREATED. u 623. " Divers words there be/' says Littleton, " which by virtue of themselves make estates upon condition."" ^ A con- dition is created by the use of appropriate words, such as " on condition," '' provided," "so as," "so that,"' "if it happen," or the like, which import, ex vi termini^ that the vesting or continu- ance of the estate is to depend upon the observance of the provi- sion named.^ " To every good condition is required an external form." ^ But apt words, even, do not always create a conditional orant, when the intent of the grantor, as shown by the whole deed, is otherwise.* If the intention of the grantor as manifested by the whole deed was merely to create a restriction, effect will be given to the provision in this way, although it be expressed to be upon condition. If, on the other hand, the intention as gathered from the whole instrument was to create a condition, the instrument will be construed as creating a condition, though none of the ordinary words to make a condition are used.^ 1 Litt. 328 ; Co. Litt. 203 a. 2 Buard of Coiu'is v. Young, 59 Fed. Rep. 96, 105 ; Stanley r. Colt, 5 Wall. 119; Hooper v. Cumtninns, 45 Me. 359; Gray v. Blauchani, 8 Pick. 284 ; Rawson V. School Dist. 7 Allen, 125, 128, 83 Am. Dec. 670; Wheeler v. Walker, 2 Conn. 196, 7 Am. Dec. 264 ; Warner v. Bennett. 31 Conn. 468; Gibert v. Peteler, 38 N. Y. 165, 168; Stihvell v. St. Louis & H. Ry. Co. 39 Mo. App. 221 ; Hoyt v. Kim- ball, 49 N. II. 322, 326 ; Chiipin v. School Dist. 35 N. H. 445 ; Raley v. Umatilla Co. 15 Oreg. 172, 13 Pac. Rep. 890; Brown V. Caldwell, 23 W. Va. 187, 48 Am. Rep. 376; Paschall v. Passmore, 15 Pa. St. 295; Karchner v. Hoy, 151 Pa. St. 383, 390,25 At!. Rep. 20; Elyton Land Co. V. South & N. Ala. R. Co. 100 Ala. 396, 14 So. Rep. 207. Sheppard, Touchstone, 121, say.s : " Know therefore that, for the most part, conditions have conditional words for their frontispiece, and do begin therewith ; and that amongst these words there are three words that are most proper, which in and of their own nature and efficacy, without any addition of other words of reentry in the conclusion of the condition, do make the estate conditional, as, proviso, itu r/nod, and sith conditione. . . , But there are other words, as si, si con- tinqat, and the like, that will make an estate conditional also ; but then they must have other words joined with them, and added to them in the close of the con- dition ; as that the grantor shall reenter, or that the estate shall be void, or the like." He further says, p 125: "If the words in the close or conclusion of a con- dition be thus, That the land shall return to the feoffor, etc., or that he s>hall take it again, and turn it to his own profit, or that the land shall revert, or that the feoffor shall reci/iere the land, — these are either of them good words in a condiiion to give a reentry, as good as the word ' reenter ; ' and by these words the estate will be made conditional." » Shep. Touch. 126. * Episcopal City Mission v. Appleton, 117 Mass. 326 ; Sohier v. Trinity Church, 109 Mass. 1 ; Bray v. Hu.ssey, 83 Mc. 329, 22 Atl. Rep. 220; Rawson t;. School Dist. 7 Allen, 125, 221, 83 Am. Dec. 670; Stil- well V. St. Louis & H. Ry. Co. 39 Mo. App. 221. 6 Karchner v. Hoy, 151 Pa. St. 383, 390, 25 Atl. Rep. 20; Elyton Land Co. v. South & N. Ala. R. Co. 100 Ala. 396, 14 So. Rep. 207. 515 Jj§ &2-i, 025.] CONDITIONS PRECEDKNT AND SUBSEQUENT. 624. It is not, however, necessary to use any of the usual words of condition to create an estate upon condition. If it clearly appears fioiu the terms used that the parties iiitendtul to create an estate upon condition, such intention will control.^ " If, from the nature of the acts to be performed by the grantee and the time required for their performance, it is evidently the intention of the parties that the estate shall be held and enjoyed on condi- tion that the grantee perform the acts specified, then the estate is upon condition. This is expressly so when the grantor has re- served no other effectualremedy for the enforcement of perform- ance on the part of the grantee. In such a case a condition subsequent arises by clear implication." ^ 625. The condition must appear in the deed of the lands to which the condition is annexed, or in a writing executed by the grantee referring to such deed, or in some way made a part of it.^ After an absolute deed the grantor cannot by subsequent deed impose conditions, for there is then no estate in the grantor upon which the conditions can take effect.* The condition cannot be established by parol evidence except upon a proper allegation of fraud, accident, or mistake, and upon clear and satisfactory evidence.'^ But the cii'cumstances surround- 1 Hapgood V. Houghton, 22 Pick. 480; Bacon v. Huntington, 14 Conn. 92 ; Sum- ner V. Darnell, 128 Ind. 38, 27 N. E. Rep. 162; Richter v. Richter, 111 Ind. 4.56, 12 N. E. Rep. 698; Wilsou v. Wilson, 86 Ind. 472 ; Stilwel! v. Knapper, 69 Ind. 558, 35 Am. Rep. 240 ; Watters v. Bredin, 70 Pa. St. 235 ; Stilwell v. St. Louis & H. Ry. Co. 39 Mo. App. 221 ; Underbill v. Saratoga & W. R. Co. 20 Barb. 455 ; Gi- bert V. Peteler, 38 N. Y. 165, 97 Am. Dec. 785; Hamilton v. Kneeland, 1 Nev. 40; Berryman v. Schumacher, 67 Tex. 312, 3 S.W. Rep. 46 ; Jeffcry v. Graham, 61 Tex. 481 ; Kilpatrick v. Mayor (Md.), 31 Atl. Rep. 805 ; Worman v. Teagarden, 2 Ohio St. 380. '- Richter v. Richter, 1 1 1 Ind. 456, 459, 12 N. E. Rep. 698, per Mitchell, J. 3 Schwalbach v. Chicago, M. & St. P. Ry. Co. 73 Wis. 137, 40 N. W. Rep. 579 ; Galveston, &c. R. Co. v. Pfeuffer, 56 Tex. 66 ; Marshall Co. High School v. Iowa Synod, 28 Iowa, 360; Thompson v. 516 Thompson, 9 Ind. 323, 68 Am. Dec. 638 ; Scantliu v. Garvin, 46 Ind. 262, 277 ; Gad- berry V. Sheppard, 27 Miss. 203 ; Moser V. Miller, 7 Watts, 156. A deed of gen- eral warranty in the usual form, convey- ing lands for the expressed consideration of the sum of one dollar and other good and valuable considerations, and a written contract executed at the same time, by which the grantee, in consideration of the deed, agrees to do certain acts, and pro- vides that, in case of failure to perform such contract, the deed shall become void, and the lands conveyed revert to the grantor, both instruments being acknow- ledged and recorded at the same time, are to be treated as one, and construed to- gether. Ritchie v. Kansas, &c. Ry. Co. (Kans.) 39 Pac. Rep. 718. * Alemaiiy v. Daly, 36 Cal. 90. ■> Rogers v. Sebastian Co. 21 Ark. 440 ; East Line, &c. R. Co. v. Garrett, 52 Tex. 133; Moser v. Miller, 7 Watts, 156; Marshall Co. High School t". Iowa Sy- HOW DEFINED AND CREATED. [§ 626. ing the parties may be shown, to aid the court in the construc- tion of the condition. 1 As a general rule, a condition cannot be established by im])lication, as, for instance, by a declaration of the jHirpose for which the conveyance is made.- A condition expressed is presumed to be the only condition,''^ unless its terms fairly imply a further condition.'^ 626. A condition may be created by a deed which refers to a condition contained in another paper and is made subject to it. The two instruments are read together, and are of the same effect as if the condition were incorporated in the deed itself.^ So if, in pursuance of the contract in virtue of which the deed is made, the parties at the time of executing the deed also execute an ao-reement expressing the condition upon which the property is conveyed, the conveyance is upon the condition so expressed. Thus where, at the time of receiving a deed, the grantee exe- cuted an unsealed instrument, declaring that the deed was made on condition that the grantee should support the grantor during his lifetime, the deed and such instrument should be read to- gether in detei-mining the grantee's title under the deed. In such case, when the grantee at the time of receiving the deed exe- cuted and delivered the condition, he thereby agreed with the grantor that he accepted the deed upon the condition written, and that the title to the property described in the deed should not become vested in him until he had furnished the support specified in the condition.*^ But a condition contained in a prior agreement between the parties, in pursuance of which the deed is made, but not expressed or i-eferred to in the deed, does not bind the grantee.^ A condition when written upon the back of a deed poll is effectual, for, although the grantee did not sign the condition, by accepting the deed with the condition upon it he accepted it as a deed made upon the condition so declared.^ nod, 28 Iowa, 300; Cliapman r. Gordon, * Louisville, &c. R. Co. v. Covington, 29 Ga. 250; Long v. McConnell, 158 Pa. 2 Bush, 526 St. 57.3, 28 Atl. Rep. 2.3.T ; Hammond y. ^ Mcrritt v. Harria. 102 Mass. 326; Port T^nval, &c. Rv. Co. 15 S. C. 10. Boar >: Wliisler, 7 Watts, 144. 1 Railway Co. r. Beeler, 90 Tenn. 548, '' Norton i-. Perkins (Vt.), 31 Atl Rep. 18 S. W. Rep. 391. J-*^- P'''" ^^o^^, C. J. 2 ^ g49 ' Moser v. Miller, 7 Watts, 156. 3 Dunlmr v. Stickler, 45 Iowa, 384 ; " Whitney v. French, 25 Vt. 663 ; Gra- Jennings v. O'Brien, 47 Iowa, 392. ham ,;. Stevens, 34 Vt^ 166, 80 Am. Dec. 517 §§6-27,1)28.] CUNDIllONS PKKCEDENT AND SUBSEQUENT. 627. The words of condition should be a part of the ha- bendum, qualifying the grant, contrulling hut not coiilriulict- iuo- the treiu'ralil V of the words in the premises. Tho words must not onlv he such us of themselves import a condition, but they must he so connected with the grant in the deed as to qual- ify or restrain it.^ If tlie words of condition do not introduce a new clause qual- ifying the grant itself, but are used by way of liuiitation or qualification of a former clause, they do not import a condition.^ It is not absolutely essential that a strict condition should be a part of the habendum ; but if it is found in any other part of the deed, as for instance in the premises, or following the covenants, its unusual place in the deed may influence its construction.^ II, Determinable or Qualified Fee. 628. An estate which is to continue till the happening of a certain event is not upon a condition subsequent, because upon the happening of that event the estate ceases by its own limita- tion without a reentry by the grantor. Such an estate is a fee, because it may last forever ; it is determinable, because it may end by the happening of the event named. An illustration of a determinable fee is, " as long as the Church of St. Paul shall stand,"'* A grant to a religious society to hold so long as the society shall support certain specified doctrines, the deed reciting that when the land is devoted to other purposes " then the title of said society or its assigns shall forever cease," creates a de- terminable fee. The grant in such case is not upon a condition 675. And see Barker v. Cobb, 36 N. H. any great trees, that he shall be punished 344, wliere the condidou on the back of in waste; but in such case the lessor shall the deed was signed by the grantee. not reenter, because that proviso is not a 1 Laberee v. Carleton, 53 Me. 211, per condition, but only a declaration and ex- Danforth, J. ; Packard v. Ames, 16 Gray, position of the extent of the grant of the 327, per Bigelow, C. J. ; Methodist Church lessor in that behalf.' " 3 Leon. 16. V. Old Columbia Co. 103 Pa. St. 608,614; 3 Graves v. Deterling, 120 N. Y. 447, Walters f. Bredin, 70 Pa. St. 235. 24 N. E. Rep. e.*)."), Vann, J., saying: ^ Cljapin V. Harris, 8 Allen, 594, per " While tliis is by no means controlling. Gray, J. : "A good illustration of this is it has a significance not to be overlooked, thus reported in Leonard: 'A made a as the instrument was evidently drawn by lease to B for life, and further grants unto a skilful conveyancer, who was well ac- him that it .shall be lawful for him to take quainted with both the forms and techni- fuel upon the premises ; proviso, that he cal terms in common use by experienced do not cut any great trees. It was holdcn draughtsmen of deeds." by the court that, if the lessee cutteth * 2 Plow. 557. 518 DETERMINABLE OR QUALIFIED FEE. [§§ 629, 630. subsequent, and no reentry is necessary; but by the terms of the grant tlie estate is to continue so long as the real estate shall be devoted to the specified uses, and when it shall no longer be so devoted, then the estate will cease and determine by its own limitation.^ The proper words for the creation of such an estate are, " un- til," "during," "so long as," and the like. 629. Where an estate is conveyed in fee for a speciJBed purpose and no other, the fee is a base fee, determinable upon the cessation of the use of the property for that purpose. A grant of land adjoining a prison, to be held for the uses and pur- poses following, that is to say, that it should remain forever unbuilt upon, in order that prisoners might not be able to escape over the wall by means of buildings which might be erected con- tiguous thereto, creates a qualified fee determinable on the re- moval of the prison to another site, or the cessation of its neces- sity by any other means. ^ " It is scarcely needful," say the court, " to add that those decisions which relate to the construc- tion of a deed as conveying an estate on condition subsequent, and deny that effect to a recital that the grant is upon a certain consideration, or to a collateral covenant, are inapplicable. The purf)0se heie is not recited as part of the consideration, nor is its observance collaterally covenanted. Nor is the estate here granted one upon condition. Although there is some confusion in deci- sions and text-books concerning these two species of estates, there is a radical distinction between a fee determinable by limitation and an estate upon condition subsequent." 630. A question or doubt has arisen whether, after all, there is now any such estate as a qualified or determinable fee, or whether tiiis form of estate was done away with liy the statute quia emptores.^ " We have considered this question," says Mr. ' First riiiversalist Society v. Bolaiu], - Sh'^el v. Lancr, 1-lS ]'a. St. 2.'56, 32 15."> MtLSs. 171, 29 N. E. Rep. .524. Allen, At!. Rei). 996. And .see Kiik r. Kiiic, 3 J., cites the following autlioritics as il- Pa. St. 430 ; Scheetz v. Fitzwater, 5 I'a. lusiiatin<^ deterniinahle fees: Church /•. St. 126. Giant, 3 Gray, 142, 147; Ashley v. War- » See Gray, ]'««rp §§ 31-40, where the nev, 11 Gray, 43; Attorney-General v. question is di.sciisseil and authorities are Manufacturing' Co. 14 Gray, .'586, 612; cited. Mr. Chailis, in hi.s /.air o/' licnl' Easterhrook.s ?•. Tillingliast, .5 Gray, 17; Prnpcrlii, 2d ed., A()pcn(lix iv. p. 398, in Fift}- As.sociatcs f. Ilowland, 1 1 Met. 99, answer to "the learned and ingeniou.s 102; Owen v. Field, 102 Mass. 90, 105; ar;,'umetits " of I'rofi .ssor Gray apainst Shep. Touch. 121, 125. the validity of determinable fees, who de- 519 § 631.] CONDITIONS rRECKDENf AND SUBSEQUENT. Justice .Vllou of the Supi-eme Court of Massacliusi.;tts,^ "and, whatever may be the true solution of it in England, where the doctrine of tenure still has some significance,- we think the exist- ence of such an estate as a qualified or determinable fee must be recognized in this country, and such is the general consensus of opinion of courts and text-wi-iters." A conveyance of hind to a school district, subject to a cove- nant that the land should be used for school purposes, and that when such use should cease the property should revert to the grantor, vests in the grantee a qualified fee. Until the happen- ing of such event the grantor is not vested with any title or interest in the land or in the reversion, for the contingency upon which the land is to revert may never happen. He has nothing to convey, and his deed in expectancy of a reverter vests no in- terest in the grantee, but is wholly without legal force or effect.^ 631. The right or possibility of reverter after the termina- tion of such an estate is similar to, though not quite identical with, the possibility of reverter which remains in the grantor of land upon a condition subsequent. This right represents what- ever is not conveyed by the deed, and it is the possibility that the land may revert to the grantor or his heirs when the granted estate determines.'^ Clares that Sanders was the first author obvious truth, is not a hypothesis to be to distinctly state that the statute put au accepted, unless no other rational explana- eml to qualified fees, among other things tion of the language of the statute can be says : " That a cardinal result of the found." statute quia emptores should be left to ^ First Universalist Society v. Boland, be discovered by Sanders, in the nineteenth 1.55 Mass. 171,29 N. E. Rep. 524, citing century, seems to me, I confess, what Chil- Aqueduct Co. v. Chandler, 9 Allen, 159, lingworth calls 'extremely improbable, 168; Leonard v. Burr, 18 N. Y. 96 ; Gil- and even cousin-german to impossililc' lespie v. Broas, 2.3 Barb. 370; State v. That Lord Coke, Plowden, Croke, Sir Brown, 27 N. J. L. 13; Henderson v. Henry Finch, Lord Nottingham, the au- Hunter, 59 Pa. St. .335; Wiggins Ferry tbor of the Touchstone, Sergeant May- Co. r. Ohio & M. R. Co. 94 III. 83, 93 ; nard, Vaughan, Treby, Powell, Lord 1 Washl). Real Prop. (3d ed.) 76-78 ; 4 Hardwicke, Preston, Fearne, Butler, Kent Com. 9, 10, 129. See, also, of Watkins (to put together at random the English works, in addition to citations names of a few men who have believed above, Shep. Touch. 101 ; 2 Bl. Com. with unquestioning faith in the existence 109, 154, 155; 1 Cruise Dig. tit. 4, §§ 72- of determinable fees since the statute), 76; 2 Flint Real Prop. 136-138; Prest. should have p.nssed their lives in intimate Est. 431,441 ; Challis, Real Prop. 197-208. familiarity with the statute without any 2 Denver, &c. Ry. Co. v. School Dist. one of them lighting or stumbling upon 14 Cole .327, 23 Pac. Rep. 978 ; State v. what, if it were true, would be a fairly Brown, 27 X. .T. L. 13. 520 ^ Fir.-t Uiiivprsalist Society v. Boland, CONDITIONS SUBSEQUENT NOT FAVORED IN LAW. [§ 632. III. Conditions Subsequent not favored in Laic. 632. Conditions subsequent are not favored in law. When the terms of the grant will admit of any other interpretation they will not be held to create an estate on condition.^ If no 155 Mass. 171, 29 N. E. Kep. 524, per Allen, J., citinj^ Challis Keal Prop. 31, 63-65, 1.53, 174, 198, 200, 212 ; Prest. Est. 431, 471 ; 2 Plow. 413 ; Sliep. Touch. 120 ; Smith V. Harrington, 4 Allen, 566, 567 ; Attorney-General v. Manufacturing Co. 14 Gray, 586, 612; Church v. Grant, 3 Gray, 142,147-1.50; Owen v. Field, 102 Mass. 90, 105, 106 ; Gillespie v. Broas, 23 Barb. 370 ; Gray Perp. §§ 33, 34, 39, and cases cited. 1 Stanley v. Colt, 5 Wall. 119. Ala- bama: Elytou Land Co. v. South & N. Ala. R. Co. 100 Ala. 396. 14 So. Rep. 207. California: Culicn v. Sprigg, 83 Cal. 56, 23 Pac. Rep. 222. Connecticut : ScoviU V. McM^hon, 62 Conn. 378, 26 Atl. Rep. 479. Georgia: Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 682. Illinois : Boone o. Clark, 129 III. 466, 21 N. E. Rep. 850; Noyes v. St. Louis, &c. R. Co. (111.) 21 N. E. Rep. 487 ; Gallaher v. Herbert, 117 111. 160, 7 N. E. Rep. 511 ; Voris r. Renshaw, 49 111. 425. Indiana : Sumner v. Darrell, 128 Ind. 38, 27 N. E. Rep. 162 ; Thomp- son V. Thomp.son, 9 Ind. 323, 68 Am. Dec. 638. Iowa : Peden v. Chicago, &c. R. Co 73 Iowa, 328, 5 Am. St. Rep. 680. Kansas : Curtis v. Topeka, 43 Kaus. 138, 23 Pile. Rep. 98 ; Ruggles v. Clare, 45 K^n'i. 662, 26 Pac. Rep. 25. Maine : Bray V. Ilussey, 85 Me. 329, 22 At). Re]). 220 ; Laheree v. Carleton, 53 Me. 211 ; Iloojier V. Cummings, 45 Me. 359. Maryland : Glenn r. Davi.s, 35 Md. 208. 6 Am. Rej). 389: Kilpatrick ?>. Mayor (Md.), 31 Atl. Rep, 805. Massachusetts : Ayer v. Emery, 14 Allen, 67 ; Packard r. Ames, 16 Gray, 327 ; Merrifield v. Cobleigh, 4 Cuah. 178; Hadley v. Hadley Mannf. Co. 4 Gray, 140; Chapin ?•. Harris, 8 Allen, 594; Sohirr V. Trinity Church, 109 Mass. 1 ; Stone V. Houghton, 1.39 Mass. 175, 31 N. E. Rep. 719. Michigan: Blanchard v. Detroit, &c. R. Co. 31 Mich. 43, 18 Am. Rep. 142. Minnesota : Chute v. Wash- burn, 44 Minn. 312, 46 N. W. Rep. 555; Farnluim v. Thompson, 34 Minn. 330, 57 Am. Rep. 59, 26 N. W. Rep. 9. Missis- sippi : Gadberry v. Sheppard, 27 Miss. 203. Missouri: Stilwell v. St. Louis & H. Ry. Co. 39 Mo. App. 221 ; Weinreich V. Weinreich, 18 Mo. App. 364; Morrill V. Wabash Ry. Co. 96 Mo. 174, 9 S. W. Rep. 657 ; Studdard v. Wells, 120 Mo. 25, 25 S. W. Rep. 201, per Black, C. J.; Roanoke Ins. Co. v. Kansas City & S. R. Co. 108 Mo. 50, 17 S. W. Rep. 1000. New- Hampshire: Page V. Palmer, 48 N. H. 385 ; Emerson v. Simpson, 43 N. H. 475, 82 Am. Dec. 168 ; Hoyt v. Kimball, 49 N. H. 322 ; Chapin v. School Dist. 35 N. H. 445. New Jersey : Woodruff v. Wood- ruff, 44 N. J. Eq. 349, 16 Atl. Rep. 4; Woodruff V. Water Power Co. 10 N. J. Eq. 489 ; Southard )•. Cent. R. Co. 26 N. J. L. 13. New York: Post v. Weil, 115 N. Y. 361, 22 N. E. Rep. 145, 12 Am. St. Rep. 809 ; Lyon v. Kersey, 103 N. Y. 264, 8 N. E. Rep. 518; Craig v. Wells, 11 N. Y. 315; Dnryee v. New York, 96 N. Y. 477 ; Woodworth v. Payne, 74 N. Y. 196, 30 Am. Rep 298; Jackson v. Silvernail, 15 Johns. 278; Graves v. Detcrl'ing, 120 N. Y. 447 ; Baker v. Mott, 78 Hun, 141, 28 N. Y. Supp. 968. Ohio: Waiterson v. Ury, 5 Ohio" C. C 347. Oregon : Raley v. Umatilla Co. 15 Greg. 172, 13 Pac. Rep. 890; Coffin v. Portland, 16 Greg. 77, 17 Pac. Rep. 580; Portland v. Terwilliger, 16 Greg. 465, 19 Pac. Rep. 90. Rhode Island: Greene v. O'Connor (R. I.), 25 All. Rep. 692. South Carolina: Ham- mond V. Port Royal, &e. Ry. Co. 15 S. C. 10, 32. Texas: Jeffery v. Graham, 61 Tex. 481. Vermont: Waterman c. Ciaik, 58 Vt. 601,2 Atl. Rep. 578; Palmer r. Ryan 63 Vt. 227, 22 Atl. Rep. 574. Wis- 521 § 633.] CONDITIONS PRECEDENT AND SUBSl.QUENT. WDids of condition are used, and no words indicating an intention that under any fircumstances the estate may be forfeited, or may revert to the grantor or his heirs, or that he or they may reenter and hold the land, and there is nothing in the nature of the acts to be done by the grantee indicating that the estate is to be held upon condition, the deed will be held to convey an estate to the grantee and his heirs forever. The deed will not be held to create an estate upon condition, unless the language to that effect is so clear as to leave no room for any other construction.^ Thus, where parents conveyed land to their son, reserving to themselves a life estate, and stating in the deed that such son " is to pay the taxes on said land, and has to support the grantors during their natural lifetime, and at their death the son shall have posses- sion," the land was not conveyed upon a condition subsequent, because no words of condition were used, and there was no clause of reverter or reentry, and no intention to create a strict condi- tion can be gathered from tiie whole instrument. " To say the stipulation in the deed to pay the taxes and support the grantors is a condition subsequent, the non-performance of which will de- feat the estate granted, is to make a stipulation for the parties which they did not see fit to make for themselves." ^ 633. Whether the language used constitutes a condition is a question of law for the court, with which the jury have nothing to do.^ "The character of the fee conveyed must be ascertained by a construction of the words of that deed. If the conveyance is less than an absolute fee simple, it must be be- cause the deed has so limited and qualified the fee conveyed as to make it dependent upon conditions either precedent or subse- quent. To determine this, we may look to the whole deed, and coasin: Wier v. Simmons, 55 Wis. 637, 25,25 S. W. Rep. 201; Baker v. Mott, i.3 X. \V. Rop. 873 ; Mills f. Evausville 78 Iliin, 141, 28 N. Y. Supp. 968 ; Lyon Semiuary, 58 Wis. 135, 15 N. W. Rep. v. Heiscy, 103 N. Y. 264, 8 N. E. Rep. 133; Lawe r. Hyde, 39 Wis. 345. 518; Flajrg ,;. Eames, 40 Vt. 16, 94 Am. 1 Ayer f. Emery, 14 Allen, 67 ; Young Dec 363; Blaiicliard v. Morey, 56 Vt. V. Clement, 81 Me. 512, 17 Atl. Rej). 707; 170. Glenn V. Davis, 35 M(i.208, 6 Am. Rep. -^ Studdanl v. Wells, 120 Mo. 25, 25 S. 389; Curtis i-. Board of Education, 43 W. Rep. 201. Kans. 138, 23 Pac. Rep. 98; Ruggles «. 3 Laberee v. Carleton, 53 Me. 211; Clare, 45 Kans. 662, 26 Pac. Rep. 25; Hammond v. Port Royal Ry. Co. 15 S. 0. Cnllen v. Sprigjr, 83 Cal. 56, 23 Pac. Rep. 10; Cox v. Freedley, 33 Pa, St. 124, 130, 222 ; Boone v. Clark, 129 111. 466, 21 N. 75 Am. Dec. 584. E. Rep. 850; Studdard i: Wells, 120 Mo. CONDITIONS SUBSEQUENT NOT FAVORED IN LAW. [§§ 634, 635. search its four corners, to ascertain the intent of the grantor." ^ Tile intent is to be gathered from the whole instrument by follow- ing out the object and spirit of the deed or contract.^ 634. A purchaser by a deed which imposes a duty upon him by condition assumes the performance of it by his ac- ceptance of the deed. Thus, where a lot of land is sold sub- ject to the condition that the grantee shall permit the proprietor of each adjoining lot who may build to erect one half of the thickness of the division wall on such lot, and that the grantor, his heirs or assigns, shall pay to the said proprietor so erecting sucli ■wall a proportionate part of the cost thereof for such part of the wall as the grantee, his heirs or assigns, may use or occupy, the grantee having the same right to place half the thickness of his wall on each adjoining lot, the grantee or any subsequent pur- chaser from him becomes bound by the acceptance of his deed to pay for such part ol: a division wall so built as he may use to the owner of the adjoining lot. Such purchaser is not liable as for a breach of covenant, becanse he did not sign and seal the deed ; but the law implies a promise to perform the condition or stipula- tion from his acceptance of the deed, on which an action may be maintained.^ 635. When it is doubtful whether a provision in a deed should be construed to be a covenant or a condition, the words used not being in form either the one or the other, the courts will construe it to be a covenant, so as to avoid a forfeit- ure.* 1 Board of Com'rs v. Young, 59 Fed. v. Wells, 11 N. Y. 315; Parmelee v. Rail- Eep. 96, 102, per Lurton, J. road Co. 6 N. Y. 74,79; McKuiglit v. ' St. Louis V. Wiggins Ferry Co. 88 Krcutz, 51 Pa. St. 232 ; Tascliall c. I'ass- Mo. 618 ; Studdard v. Wells, 120 Mo. 25, more, 15 Pa. St, 295 ; Thorn ion c. Tram- 25 S. W. Rep. 201. niell, 39 Ga. 202; Kilpatrick v. Mayor ■'Maine v. Cumston, 98 Mass. 317. (Md.), 31 All. Rep. 805 ; Earle r. Dawes, See, also, Dyer v. Sanford, 9 Met. 395, 43 3 Md. Ch. 230 ; Seoville r. McMahon, Am. Dec. 399. 62 Conn. 378, 26 Atl. Re)). 479, 481 ; ■» Hovt V. Ki!nl)iill,49 N. II. 322 ; Cliapiu Pedcn v. Cliicatio, &c. K. Co. 73 Iowa, 328, !•. School District, 35 N. H.445, 451 ; Gal- 35 N. W. Rep 424, 5 Am. Si. Rep. 680 ; laher v. Herbert, 117 111. 160, 7 N. E. Rep. Greene v. O'Connor (R. I.), 25 Atl. Rep. 511 ; Board of Education v. Trustees, 63 692; Merrifield v. Cobleigh, 4 Cush. 178, 111. 204 ; Studdard i'. Wells, 120 Mo. 25, 184 ; l{awson v. School District, 7 Allen, 25 S. W. Rep. 201 ; St. Louis y. Wiggins 125. In the elaborate and able ojiinion Ferry Co. 88 Mo. 618 ; Wheeler v. Das- delivered in the last-cited case by Bi«c:ow, tomb, 3 Cush. 285; Graves v. Dctcrling, C. J., the court said : " If it be doubtful 120 N. Y. 447, 24 N. E. Rep. 655; Craig whether a clause in a deed be a covenant roo. § 63").] coNOinoNS pkeckdhni' and suuskquknt. The (.•oiistriiction must not, however, be a strained or unreason- able one, or one that was plainly not contemplated by the parties.' Where a deed in fee contained these words, " It being ex- pressly understood by the parties that the said tract or parcel of land is not to be put to any other use than that of a depot square," it was held that these were words of covenant, and not words of condition, and that the remedy for a bre:uh was an action for damages, and not a forfeiture of the estate for condi- tion broken.-^ Where a right of way was conveyed to a railroad company, "provided, however, that any other railroad running into or through the city shall have the right to run a parallel track along upon the same right of way," this provision was construed to be a covenant or limitation, rather than a condition subsequent, no right of entry being reserved for a breach of it. The court re- garded it as more consonant with equity and the general spirit and purpose of the conve3'ance to construe the proviso as a cove- nant or limitation upon the use of the way granted than as a strict condition.^ A proviso in a deed that the grantee shall erect and maintain at his own expense all division fences is not a condition subse- quent, but an implied covenant. The proviso does not suggest that the parties intended or understood that a failure to comply with it should work a forfeiture of the land.* In a deed of a right of way to a i-ailroad comj)any, a condition that it will build, immediately after the road is finished, two bridges across a cut in the grantor's land, is not a ccmdition wliich will authorize a forfeiture of the grant upon a failure to perform it.^ or condition, courts of law will always 201 ; Scovill v. McMahon, 62 Conn. 378, incline against the latter construction. 26 At!. Rep. 479 ; Young v. Clement, 81 Conditions are not to be raised readily by Me. .512, 17 Atl. Rep. 707. inference or argument." In Scoville v. Mc- i Smith y. Barrie, .56 Mich. .314,22 N. Mahon, 62 Conn. 378, 26 At). Rep. 479,481, W. Rep. 816, 56 Am. Rep. 391 ; Guihl v. Hall, J., said : " Courts will always con- Richards, 16 Gray, 309 ; Wilson v. Wil- strue clauses in deeds as covenants, rather son, 86 Ind. 472 ; Taylor v. Cedar Rapids than conditions, if they can reasonably & St. P. R. Co. 25 Iowa, 371. do so." See, also, as illustrating the suh- - Thornton v. Traminell, .39 Ga. 202. ject, Clark v. Martin, 49 Pa. St. 289, 297 ; ^ Elyton Land Co. c. South & N. Aln. Stanley i'. Colt, 5 Wall. 119; Country- R. Co. 100 Ala. 390, 14 So. Rep. 207. man v. Deck, 13 Abb. N. C. 110; Ayling * Palmer v. Ryan, 63 Vt. 227, 22 Atl. V. Kramer, 133 Mass. 12 ; Barrie v. Smith, Rep. 574. 47 Mich. 1.30, 10 N. W. Rep. 168 ; Stud- » Roanoke Inv. Co. v. Kansas City & S. dard v. Wells, 120 Mo. 25, 25 S. W. Rep. R. Co. 108 Mo. 50, 17 S. W. Rep. 1000, 52-i CONDITIONS SUBSEQUENT NOT FAVORED IN LAW. [§§ 63G, GoT. 636. If the parties themselves expressly call the provision a covenant instead of a condition, their laiifruase is sio-nificaiit of their intention. "This alone, however, would not make it a cov- enant, as that which is termed a 'covenant' may be a condition, and that which is termed a ' condition ' may be a covenant. But it has an important bearing upon the intention of the parties, because technical terms in a conveyance are presumed to have been used with their accustomed meaning, unless the circum- stances and context indicate a different intent." ^ The same provision cannot be both a condition and a covenant. The grantor cannot claim a forfeiture and also damages for a breach of a covenant.- 637. If the technical words of condition are not used, and there is no clause providing that the grantor may reenter, the deed will generally be construed as creating a covenant rather than a condition.'^ Other words used in connection with technical words of condition may serve to show that no forfeiture for a breach of the provision 1 Graves v. Deterling, \20 N. Y. 447, 24 N. E. Rep. 655, per Vann, J. - Underbill v. Saratoga & W. R. Co. 20 Barb. 455. ^ Scovill i: McMahon, 62 Conn. 378, 26 Atl. Rep. 479; Packard v. Ames, 16 Gray, 327 ; CJhapin v. School District, 35 N. H. 445; Hoyt v. Kimball, 49 N. H. 322; Galiaher v. Herbert, 117 III. 160, 7 N. E. Rep. 511 ; Gibert i;. Peteler, 38 N. Y. 165, 97 Am. Dec. 785; Graves v. De- terling, 120 N. Y. 447, 24 N. K. Rep. 655 ; Lyon V. Hersey, 103 N. Y. 264, 270, 8 N. E. Rep. 518; Crai}; v. Wells, 11 N. Y 315, 320; Strong v. Doty, 32 Wis. 381 Stiiddard v. Wells, 120 Mo. 25, 25 S. W Rej). 201 ; Risley i-. McNiecc, 71 Ind. 434 Riiggles p. Clare, 45 Kans. 662, 26 Pac, Rep. 25; Curtis v. Board of Education, 43 Kans. 138, 23 Pac. Rep 98. In tlie latter case the court .say, refer- ring to the deed in that case : " There are no words in the deed slating thai the estate was or should be c(jnveycd upon condition, or that it might be forfeited under any circumstances whatever, or that the estate mijiht under anv ciicumstaiicos revert to the grantors or their heirs, or that they might under any circumstances ever have the right to reenter the itremises. Nor was the estate conveyed or to be con- tinued in existence upon any such terms as 'provided' or 'if something in the future should be done or not done, or happen or not happen. Indeed, there is nothing sufficiently strong in any jiart of the deed, or in the whole deed, to indicate that the estate was conveyed, or intended to be conveyed, upon any condition, either precedent or subsecpient ; but, taking the whole deed together, it shows that an ab- solute estate in fee simple was intended to be conveyed, and was conveyed, and was to continue in the grantees forever. The authoriti(s are uniform tliat estates upon condition subsequent, which after having been fully vested may be defeated by a breach of the condition, arc never favored in law, and that no deed will be construed to create an estate upon condition unless the language to that effect is so clear that no room is left for any other construc- tion." 52r) § 638.] CONDITIONS PRECEDENT AND SUBSEQUENT. was ink'nded ; as, for instance, in case some other remedy than a forf^'itmv is [)rovided. Thus, where it was provided that in case ol a breach of the condition the grantors, "by their agent, servant, or assigns, may enter ayid abate the same without being liable to any action of trespass therefor," it was considered that this stipulation, which would be unnecessary if it were intended that there should be a forfeiture by operation of law, and which is also inconsistent with the idea of forfeiture, excluded the rem- ed}'' by forfeiture.^ 638. But if the language used imports a condition only, and it is moreover clear tliat the parties intended that the legal consequences of a breach of a condition should follow a violation of the terms of the jirovision, this cannot be treated as a cove- nant, but must be treated as a condition. ^ A condition is not a covenant. The courts cannot disregard the distinction between them. " Upon covenants, the legal responsibility of their non- fulfilment is, that the party violating them must respond in dam- ages. The consequence of the non-fulfilment of a condition is a forfeiture of the estate. The grantor may reenter at his will and possess himself of his former estate."^ A clause in a conveyance that it is made " upon the express stipulation that a dwelling-house should be moved or erected on the ground within three years," at a cost not less than a certain sum, does not constitute a condition.* If, howevei*, such a clause is in- serted in the form of an express condition, or it is declared that a breach of the stipulation shall work a forfeiture, the conveyance will be construed as creating a condition subsequent.'^ A condi- tion that the grantee shall erect upon the land conveyed a cotton i Hoyt V. Kimball, 49 N. H. 322. Atl. Rep. 606 ; Underbill v. Saratoga & 2 Studdard v. Well.s, 120 Mo. 25, 25 S. W. R. Co. 20 Barb. 455; Carpenter v. W. Rep. 201 ; Cornelius r. Ivins, 26 N. J. Graber, 66 Tex. 465, 1 S. W. Rep. 178; L. 376; Sbaron Iron Co. v. Erie, 41 Pa. Odcll v. Cannon, 79 Ga. 515, 4 S. E. Rep. St. 341 ; Palairet v. Snyder, 106 Pa. St. 558; Blanchard v. Detroit, &c. R. Co. 31 227; Woodruff v. Water Power Co. 10 Mich. 43, 18 Ann. Rep. 142; Hammonds. N. J. Eq. 489; Langley v. Chapin, 134 Port Royal, &c. Ry. Co. 15 S. C. 10 ; Pepin Mass. 82; Gray v. Blanchard, 8 Pick. Co. v. Prindle, 61 Wis. 301, 21 N. W. 284 ; Hammond v. Port Royal, &c. Ry. Rep. 254. Co. 15 S. C. 10, 33; Jeffery v. Graham, * Stone v. Houghton, 139 Mass. 175, 31 61 Tex. 481. N. E. Rep. 719. ^ Woodruff V. Water Power Co. 10 N. ^ O'Brien v. Wagner, 94 Mo. 93, 7 S. J. Eq. 4S9 ; Warner v. Bennett, 31 Conn. W. Rep. 19 ; Clarke v. Brookfield, 81 Mo. 468; Hoyt v. Kctcham, 54 Conn. 60, 5 503,51 Am. Rep. 243. 526 CONDITIONS SUBSEQUENT NOT FAVORED IN LAW. [§§ 639, 6-iO. factory, within two years from the date of the conveyance, is a condition and not a covenant.' 639. A condition cannot be enforced as an agreement where the huiguage used imports a condition only, and there are no words importing an agreement, but the only remedy is through a forfeit- ure.2 If there are no promissory words, or words which can be construed as such, the condition does not create a personal liabil- ity.-^ But the deed may contain a condition upon breach of which the grantor might enforce a forfeiture, and also a covenant on the part of the grantee upon a breach of which the grantor may in equity compel a specific performance or maintain an action for damages, and in such case the grantor has his election of reme- dies.^ If the language and intent of the deed clearly fix the legal import of the instrument as creating a condition, it is of no conse- quence that the provision is elsewhere in the deed referred to as being a covenant.^ 640. The nature and purpose of the deed and the circum- stances of the transaction may control the use and meaning of words of condition so that they will not have the effect of limiting the estate conveyed. Thus, in the language of the Supreme Court of the United States, " the word ' proviso ' is an appropriate one to constitute a common-law condition in a deed 1 Langley v. Chapin, 134 Mass. 82. .^ Blanchard v. Detroit, &c. K. Co. 31 - Woodruff V. Trenton Water Power Mich. 43, 18 Am. Rep. 142, Graves, C. Co. 10 N. J. Eq. 489 ; Parsons v. Miller, 1.5 J., sayiuj; : " When an instrument or pro- Wend. 561, .564; Jackson i'. Florence, 16 vision is clearly and distinctly so drawn Johns. 47 ; Palmer v. Plank Road Co. 11 'and con.siimmated that the law at once N. Y. 376, 389, where the court say: "It attaches, and determines that it jjossesses by no means follows, because a grantee a specific legal nature, and exclusively be- consents to take an estate subject to a longs to a given class of transactions, the condition, that he also consents to obligate parties cannot, by arbitrarily assigning a himself personally for the performance of name to it wholly foreign to its true cliar- the condition. Many cases might be im- acter, succeed in transforming it, and so agined in which one would be willing to cause it to stand and operate in a manner risk the forfeiture of the estate, while he wholly alien to it. . . . In such a case the would be altogether unwilling to incur law attaches to the act, and ascribes to it the hazard of a personal responsibility in a definite significance, and the parties aiMition." cannot be heard to say, where there is no ^ Blanchard v. Detroit, &c. R. Co. 31 imposiiion, no fraud, no mistake, that, Mich. 43, 18 Am. Rep. 142; Parsons ?•. although they deliberately made a condi- Miller, 1.5 Wend. 561, 564. tion, and nothing but a condition, they yet •* Stuyvesant j;. New York, 11 Paige, meant that it should be exactly as a cove- 414. nant." 527 § 040.] CONDITIONS PRECEDENT AND SUBSEQUENT. or will, but this is not the fixed and invariable meaning attached to it by the law in these instruments. On tlu> (iontrary, it gives way to the intent of the parties as gathered iiom an examination of the whole instrument, and has frequently been thus explained and applied as expressing simply a covenant or limitation in trust." ^ In a case before the House of Lords Lord Chelmsford said : " Very little if any stress can properly be laid upon the words ' intent and purpose ' and ^ upon condition ' in the will as proof of the testator's intention to create either a trust or a con- dition. Cases are to be found in which, in gifts of this sort, a condition has been held to be created by the word 'intent,' and it was not unusual formerly in charitable dispositions to impose trusts in the form of conditions,"^ In a deed to a railroad company, a condition that the company should erect a private crossing under the railroad track may prop- erly be construed as a reservation of a mere easement to the grantor, if there is nothing further in the deed which indicates an intention to make the compliance with such provision a con- dition subsequent. The provision for the right of way was treated as part of the consideration for the conveyance. It was iiceordingly held that the grantor could maintain an action for damages against the railroad for closing the crossing.^ A deed "upon this further condition," that the grantee should permit the grantor to have access through the land to the waters 1 Stanley v. Colt, 5 Wall. 119, 166, per title to the easement granted depend upon Nelson, J. In this case the testator de- the maintenance of the j)riv;\te road, vised laud to a religious society for its Such a contract would have been against use or benefit, " Provided that said real the interests of the company ; and its en- estate be not hereafter sold or disposed forcement, in case of violation, would by of," and in connection and continuation no means have restored to Ford his prop- added numerons minute directions in the erty in its original condition. The con- nature of regulations for the guidance of struction contended for by the defendant trustees whom he appointed to manage is unreasonable and clearly against the it, and with a view to the greatest advan- evident intention of both parties, and as tage of the society. It was held that the deed by its terms does not necessarily these provisions constituted a limitation create a conditional estate, and as it does in trust, and not a common-law condi- not so appear by clear implication, we are tion. of the o|)inion that no such estate was '^ Attorney-General v. Wax Chandlers' created." Rombauer, V. J., dissented on Co. 6 L. R. H. L. 1. the ground that the deed in express terms ■' Stilwell V. St. Louis & H. Ry. Co. .39 created a condition, and the court could Mo. A pp. 221. The court by Bigu'S, J., not say there was no condi ion. He cited say : " It is quite evident that neither Hubbard r. Kansas City, &c. R. R. Co. 63 party intended or expected to make the Mo. 68, which is in direct conflict. 528 CONDITIONS SUBSEQUENT NOT FAVORED IN LAW. [§ 641. of a harbor b}^ a road heretofore used, was held not to constitute a condition subsequent. There was in the deed no clearly ex- pressed intention importing that tlie estate was to depend upon a contingency provided for. The legal effect of the condition was to annex a right of way to the land conveyed. It was a reserva- tion in favor of tlie grantee.^ Where a devise was made " upon the express condition " that the devisee should pay all legacies within twelve months, but added, " and I feel confident that he will comply with my wish, it being my particular desire that all the above legacies shall be paid, and I do hereby charge and make chargeable all my said real and personal estate with the payment of the aforesaid leg- acies," it was held that there was no conditon for which an entry could be made, but only a trust.^ 641. Even the words " upon condition " do not of necessity create an estate upon condition. ^ Thus, in a deed of land to a religious society to use for purposes of public worship, the words *' in trust nevertheless and upon condition always" were held not to create an estate on condition, but merely a trust. Taking into consideration the circumstances of the case, the words " upon 1 Baker v. Mott, 78 Hun, 141, 28 N. Y. Suj)p. 968; Lyon v. Hersey, 103 N. Y. 264, 8 N. E. Rep. 518. 2 Wright V. Wilkin, 2 Best & S. 232. Crompton, J., said : " I think tliat the rule is well laid down by Lord St. Leonards with rei,'ard to estates upon condition, 'that whnt by the old law was deemed a devise upon condition would now, pcr- haj)S, in almoi-t every case, be construed a devise in fee upon trust.' " See Attorney- General I'. Southmolton, 14 Beav. 3.57 ; Merchant Tailors' Co. v. Attorney-Gen- eral, L. R. U Kq. 35. 8 Stanley v. Colt, 5 Wall. 119 ; Avery i'. New York Cent. & H. R. R. Co. 106 N. Y. 142, 12 N. E. Rep. 619, 24 N. E. Rep. 20 ; Post V. Weil, 115 N. Y. 361, 22 N. E. Rep. 145 ; Graves v. Deierlin^s 1'20 N. Y. 447, 24 N. E. Rep. 655 ; Episcopal City Mi.s- sion V. Api)leton, 117 Mass. 326; Sohier V. Trinity Church, 109 Mass. 1 ; Paschall V. Passraore, 15 Pa. St. 295 ; Biicon v. Huntintrton, 14 Conn. 92; Wormnn v. Teagarden, 2 Ohio St. 380; Walters v. VOL. I. Bredin, 70 Pa. St. 235 ; Hoyt v. Kimball, 49 N. IL 322 ; Hunt v. Wright, 47 N. II. 401; Dunlap i;. Mobley, 71 Ala. 102; Farnham v. Thomjjson, 34 Minn. 330, 26 N. W. Rep. 9, 57 Am. Rep. 59 ; Stilwell V. Knapper, 69 Iiid. 558, 35 Am. Rep. 240 ; Wilson y. Wilson, 86 Ind. 472; Laberee V. Carleton, 53 Me. 211; Neely r. IIos- kins, 84 Me. 386, 24 Atl. Rep. 882. Per Peters, C. J. : " The term ' condition ' does not necessarily import it. 'Condition' may mean ' trust,' and ' trust ' mean ' con- dition,' oftentimes. The construction must depend "upon the context and any admissible evidence outside of the deed." In Kilpatriek v. Mayor (Md.), 31 Atl. Rep. 805, Page, J., said: "Technical words are not ab.solutely essential to cre- ate a condition, nor, on the other hand, does their use necessarily raise one. Such words may l)c controlled by the context of tlie instrument in which they are used, so that sometimes they work a limitation and condition, and sometimes a covenant or a trust only." 529 § li42.] CONDITION'S TRECEDENT AND SUBSEQUENT. condition " wore regarded us not having been used in their tech- nical sense. The grantors who nsed these words were merely a committee who had taken the title in trust for the society ; nnd if the title were to come back to them or their heirs by foifeiture, it must be held by them in trust for the society, and would thus be turned into a trust estate.^ Apt words of conditi(m will not create an estate upon condition if the intention of the grantor, as manifested by the whole deeil, is otherwise. Thus, where land was conveyed to a religious society, its successors and assigns, "upon and sul>ject to the con- dition" that the society should continue to hold and occupy and improve the land and chapel standing thereon, for the supjiort of religious worship, "and also upon the further condition" that no building should be erected upon a certain portion of the land conveyed until certain events should occur, it was held, upon a petition in equity brought by the society after the locality had become unfit for the purposes for which the land was conveyed, that the deed did not create a condition, and that a sale should be decreed.^ The purpose of the conditional paragraph was declared to be to define and regulate the use of the estate by the grantee, not by the grantor or his heirs. 642, Mere words, though they be the strongest words of condition, will not entail a forfeiture of the estate, unless it appears that this was the distinct intention of the grantor, and a necessary understanding of the parties to the instrument. The intention of the parties as gathered from the whole deed and from the surrounding circumstances, rather than technical words of condition, controls the interpretation of the deed. This rule is strongly declared by the New York Court of Appeals in a recent decision, in which Mr. Justice Gray says: "If the only reason for 'onstruinsr a clause is in the technical words which have been used, the court may disregard them in performing the office of interpretation. If we can construe this clause as an obligation to abstain from doing the thing described, which, by acceptance of the deed, became binding upon the grantee as an agreement, enforceable in behalf of any interest entitled to invoke its protec- 1 Sohier v. Trinity Church, 109 Mass. 117 Mass. 326. Gray, C. J., cited Sohier 1,19. For a similar case, see Neely v. v. Trinity Church, 109 Mass. 1, 19; At- Hoskins, 84 Me. .386, 24 Atl. Kep. 882. torney-Gcncral v. Wax Chandlers' Co. L. 2 Episcopal City Mission v. Appleton, R. 6 H. L. 1. 530 CONDITIONS SUBSEQUENT NOT FAVORED IN LAW. [§ 642. tion, I think we are in conscience bound to give tliut constiaiction, and thereby place oiuselves in accord with that inclination of the hiw which regards with disfavor conditions involving forfeit- ure of estates. In this connection it may be noted that there is no clause in the deed giving the right to reenter for conditions broken. While the presence of such a clause is not essential to the creation of a condition subsequent, by which an estate may be defeated at the exercise of an election by the grantor or his heirs to reenter, yet its absence, to that extent, frees still more the case from the difficulty of giving a more benignant construc- tion to the proviso clause. The presence of a reentry clause niijzht make certain that which, in its absence, is left open to con- struction. The absence of such a clause may have its significance in connection with the circumstances of the case and tlie intent to be fairly presumed therefrom." ^ In this case the owner of two adjoining estates, occupied by him as farms, contracted to sell one of them " upon special condi- tion that no part of the land or buildings thereon should be used or occupied as a tavern." Some years afterwards the owner, being financially embarrassed, conveyed both estates to trustees subject to this agreement, and the trustees shortly afterwards made a deed in fulfilment of this agreement, with the " express condition that the aforesaid premises shall not, nor shall any part thereof, be at any time hereafter used or occupied as a tavern, or iniblic house of any kind." Subsequently the trustees sold the remain- ing estate without inserting any such condition. The former owner then had no interest in either estate other than obtaining from them all that they would bring, and the trustees had no other interest. Neither the owner nor the trustees had any intei-est that the restrictive clause should operate as a condition subse- quent. '' There was no interest," say the court, " which was not adequately met by the creation f)f a covenant or limitation in trust that the property should not be used for the one certain purpose mentioned." The two estates were subsequently united in on(' owner, and when, upon a sale of a portion of the estate which was affected by the provision under consideration, tlio pur- chaser objected that it was subject to a common-law forfeiture and declined to complete his purchase, it was held that his objec- tion was untenable; that tlie provision was simply a covenant 1 Post V. Weil, 115 N. Y. 3G1, 371, 22 N. K. Rep. 145. 531 §643.] CONDITIONS PRECEDENT AND SUBSEQUENT. running witli the land for the benefit of the adjoining estate; anil that it was extinguished by the union of both estates in the same owner. ^ 643. The consideration named for a grant does not ordina- rily imply a condition, so that u{;on a faihiie of the considera- tion a forfeiture may be declared.- Any exception there may be to this rule "is confined to cases where the subject-matter of the grant is in its nature executory, as (;f an annuity to be paid for services to be rendered or a privilege to be enjoyed.""^ A grant "■' made upon the consideration that " the grantee, his heirs, ex- ecutors, and administrators, should fulfil certain agreements for the support of the grantor and his wife, was held not to be a 1 Post I'. Weil, 115 N. Y. 361, 22 N. E. Rep. 145. The court cite and rely upon Avery v. N. Y. Cent. &c. K. R. Co. 106 N. Y. 142, where the railroad com- pany held lands under a deed containing an "express condition " tliat the company should at all times maintain an opening- to a hotel adjacent to the premises. A lessee of the hotel sought to enjoin the company from maintaining a fence upon the land, which blocked up a passageway between the railroad property and the hotel. Tiie company contended that the provision created a condition subsequent, which could only be taken advantage of by the grantors and their heirs. The court, however, decided against the con- tention of the railroad company, saying : " The fact that the deed uses the language ' upon condition,' when referring to the conveyance by the grantors, is not conclu- sive that the intention was to create an estate strictly upon condition. . . . Con- struction may frequently be aided by ref- erence to all the circumstances surround- ing the parties at the time of the execution of the deeds, because the court is thus en- abled to be placed exactly in their situa- tion, and to view the case in the light of such surroundings." After referring to the facts, he writes : " All these facts would lead one to the unhesitating con- clusion that the language used in tho.se deeds in 1857 was for the benefit of the 532 hotel property, and was not meant to cre- ate a condition subsequent." In confirmation of the views given in the above decisions, see Clement v. Bur- tis, 121 N. Y. 708, 24 N. E. Rep. 1013, affirming 10 N. Y. Supp. 364, where a clause in a deed of land, reciting that the grant is on the " express condition " that the grantee, his heirs or assigns, shall not thereafter maintain a nuisance on the premises, does not create a condition sub- sequent, but is a covenant running with the laud ; and a purchaser at a foreclosure sale of the granted premises cannot refuse to complete his purchase on the ground of a defect in the title, as the covenant does not bind him any further than he would be bound by law in the absence of any covenant. Also, Countryman y. Deck, 13 Abb. N. C. 110; Iloyt v. Kimball, 49 N. H. 322 ; Episcopal City Mission v. Ap- pleton, 117 Mass. 326; Stanley ?;. Colt, 5 Wall. 119. •2 Berkley v. Union Tac. Ry. Co. 33 Fed. Rep. 794; Laberee v. Carleton, 53 Me. 211 ; Ayer v. Emery, 14 Allen, 67; Martin v. Martin, 131 Mass. 547; Morrill V. Wabash, &c. Ry. Co. 96 Mo. 174, 9 S. W. Rep. 657 ; Rainey v. Chambers, 56 Tex. 17 ; Risley ;•. McNiece, 71 Ind 4.34; Portland ;;. Terwilliger, 10 Oreg. 465, 19 Pac. Rep. 90. 3 Rawsou ?•. School Dist. 7 Allen, 125, 83 Am. Dec. 670, per Bigelow, C. J. See, also, Wilson v. Wilson, 86 Ind. 472. CONDITIONS SUBSEQUENT NOT FAVORED IN LAW. [§ 643. grant upon a condition subsequent. " There are no apt words in the deed," say the court, " to create a condition ; there is no clause of reentry or forfeitui-e ; it is not provided that the deed shall be void in a certain contingency ; nor was the conveyance made solt-ly in consideration of certain acts to be done, or for the accomplishment of a specific purpose, on the fulfilment of which the estate granted is made to depend. The grantor has not only omitted to use any words which can be properly held to create an estate on condition according to the technical rules of law, but he has also failed to indicate any clear intent to cause the estate to be defeated by reason of any act or omission of the grantee." ^ A warranty deed of an undivided half of a tract of land '^ in consideration of clearing the whole of all taxes now due, and tax claims of all kinds for which the land has been sold, or is now subject to sale," is an absolute conveyance, and on its delivery vests title in the grantee, and is not a deed upon condition prece- dent or subsequent.2 And so a recital in a deed by a father to his son that the son had promised to remain with the grantor, and after the grantor's death to support his widow, does not con- stitute a condition.^ Even where a grantee holding an estate upon condition trans- ferred it to another, in consideration that the latter should perform the condition, the second grantee does not hold the estate upon condition, but is merely under a personal obligation to perform the condition.'* Where land was conveyed upon consideration that a railroad companv is to " locate, erect, and maintain" upon the land its depot, and in pursuance of the conveyance the depot was erected and maintained for eleven years and then was removed, the land did not revert. "The erection and maintenance of the depot is stated to be a consideration, a consideration perhaps in the nature of a condition subsequent ; but the conveyance does not i-urport to be one upon condition that the grant... will perlorm, but .t .s a convevance in consideration of its i)rnmise to e.-e.^t and mam- tain. That consid(H-ation it has partially performed. . . . Under those circumstances, where there is a part performance, - a part 1 Aycr .. Emery, U Allen. 67. ^ Perry .. Sc,.,t. r>l Pa- St. HO. See. ^ Reggies .. Clare, 45 Kans. 062. 20 also. Havn.s .. S aw. I'' J'^^^^^^ ''^ i Norris v. Laberec, .-iS Me. 260. rac. Kep. 2o. j.^.^ J Ooo §^ G44-G-i(;.J CONDITIONS ITvKCEDENT AND SUBSEQUENT. pavnu'nt, — the title does not revert. There may be a cause of aotion for (.lamages, but the title does not revert upon a mere par- tial failure of the consideration." ' 644. A condition for the payment of money to third per- sons by the oiautee within a fixed time will be construed to be merely a charge upon the land, unless a different intent is ap- i parent, or the language of the condition is so clear as to leave no room for construeiion or doubt.^ A conveyance "subject to the purchase-money," and to an agreement concerning the same, creates an equitable lien upon the land conveyed.^ 645. A provision in a deed that the grantee shall assume and pay a mortgage upon the land conveyed does not constitute a condition upon the breach of which the title revests in the grantor.^ But the payment of a mortgage upon the land may be made an express condition, and when so intended it will be enforced by forfeiture.^ In that case there is a breach of the con- dition in case the grantee suffers the mortgage to remain undis- charged for several years after its maturity. Such a condition requires the grantee to relieve the property of the incumbrance within a reasonable time.^' 646. A conveyance in consideration of support to be fur- nished the grantor or another person does not create a condition, unless apt words of condition are used,' and even then it will not be held to create a condition unless it is apparent from the whole instrument that a strict condition was intended. But courts of equity, it is declared, will freely rescind conveyances by parents 1 Berkley v. Union Pac. Ry. Co. 33 ment on such a clause as being a coudi- Fed. Rep. 794, 795, per Brewer, J. See, tion, is clearly had law. however, Close v. Burlington, &c. Ry. ° Ross v. Tremain, 2 Met. 49.5; Fisk Co. 64 Iowa, 149, 19 N. W. Rep. 886. v. Chandler, 30 Me. 79. 2 Wier )'. Sitntnons, 55 Wis. 637, 13 » Rowell d. Jewett, 69 Me. 293; Ross N. W. Rep. 873; Powers v. Powers, 28 v. Tremain, 2 Met. 495. Wis. 659; Bugbec v. Sargent, 23 Me. ' Cook y. Trimble, 9 Watts, 15 ; Ayer 269. V. Emery, 14 Allen, 67 ; Goodpaster d. 3 Xander's Est. 7 Pa. Co. Ct. 482 ; Hies- Leathers, 123 Ind. 121, 23 N. E. Rep. ter r. Green, 48 Pa. St. 96. 1090; Risley v. McNiece, 71 Ind. 434; * Martin r. Splivalo, 69 Cal. 611, 11 Gallaher y. Herbert, 117 111. 160, 7 N. E. Pac. Rep. 484; Moore's Appeal, 88 Pa. Rep. 511: Pownal v. Taylor, 10 Leigh, St. 450; Cook V. Trimble, 9 Watts, 15; 172, 34 Am. Dec. 725. And see Ralph- Dunlap 1-. Mobley, 71 Ala. 102; Schuyder snyder v. Ralphsnyders, 17 W. Va. 28; V. Orr, 149 Pa. St. 320, 24 Atl. Rep. 306, Joslyn v. Parlin, 54 Vt. 670; Weeks v. holding that the grantor may bring eject- Boynton, 37 Vt. 297 ; Studdard v. Wells, 120 Mo. 25, 25 S. W. Rep. 201. 534 CONDITIONS SUBSEQUENT NOT FAVORED IN LAW. [§ 647. to sons upon the breach of agreements to support ; ^ but they will not enforce a forfeiture in such cases on slight grounds, and when the circumstances are. such that it would be grossly inequitable to do so.^ If, however, it is apparent that the parties intended to make the furnishing of support a condition, this will be enforced by forfeiture.^ If the condition be to furnish support or to pay a certain sum secured by mortgage, the grantee may perform either alternative ; but when he has once made his election he is bound by it, and cannot afterwards choose the other alternative.* A condition for support may be performed by another per- son than the grantee, unless the deed expressly provides that he shall personally furnish it.'^ The support need not be given or received upon the granted premises, unless there is an express provision therefor. It may be demanded or given at any rea- sonable place. ^ 647. A reservation or provision in a deed poll that the grantee shall perform a certain service for the grantor, such as to build and maintain a certain fence, is made binding upon the grantee by his acceptance of the deed.' " Where a grantee accf^pts a deed, and goes into possession of the premises under it, he is bound by tlie conditions contained in the deed as effectually as if he had signed and sealed the instrument. Although not executing the instrument, he should be deemed to hav(^ entered into an express undertaking to do what the deed says he is to do; and such undertaking or obligation imposed upon and assumed by the grantee, if not technically a covenant running with the land, 1 Blake I'. Blake. 56 Wis. 392, 14 N. Thrall v. Spear, 63 Vt. 266, 22 Atl. Kcp. W. Kep. 173 ; Delon- v. Delong, 56 Wis. 414 ; Alford i'. Alford, 1 Tex. Civ. App. 514, 14 N. W. Rep. 591 ; Bresnahan v. 245, 21 S. W. Kej). 283. BrJsnahan, 46 Wis 385, 1 N. W. Rep. ' Bryant r. Er.skine, 55 Me. 153. 39- Bo.^ie (•. Botiie, 41 Wis 209. -•' Jo.slyu ik Parlin, 54 Vt. 670; Henry 2 Sha.ie V. Oldroyd, 39 Ivans. 313, 18 v. Tupper, 29 Vt. 358; Wilson i-. Wilson, Pac. Rei-. 198. 38 Me. 18. s Rowell r. Jewett, 69 Me. 293; Tho- « IVttee r. Case, 2 Allen, 546; Wilder Record 47 Me. 500; Walters v. v. Whitteinore, 15 Mass. 262; Tliaycr i-. mas V Bredin 70 Pa. St. 235 ; Berrvman i-.Schu- Richards, 19 Pick. 398 maker' 67 Tex. 312, 3 S. W. Rep. 46; ■ KoI.erts v. Coleman, 37 W. Va. 143. Leach V Leach. 4 Ind. 628. 58 Am. Dec. 16 S. E. Kep. 482 ; Newell r. Hill. 2 Met. 642; Hitchcock >: Sin.pkins, 99 Mich. 180; Rof;ers v. Fire Co. 9 Wend. 611; 198 58 N W Rep. 47 ; Jackson v. Top- Trotter i-. Hujihe.s, 12 N. Y. 74. 62 Am. ping 1 Wend. 388, 19 Am. Dec. 515; Dec. 137; Atlantic Dock Co. v. Leav.tt, Spaulding V. Halienback, 39 Barb. 79 ; 54 N. Y. 35, 13 Am. Rep. 556. 635 § 647.] CONDITIONS PRKCKDENr AND SUBSEQUENT. is nevertheless ;iu agroement of the grantee, evidenced by his jvceeptance of the deed, which might bind liini and his personal representatives, and, by express words, his heirs and assigns." ^ Such a provision is not a reservation out of the estate granted, nor is it generally a condition upon which the estate is to be held, nor even a covenant running with the land, or otherwise. It is usually merely a personal agreement of the grantee, made as part of the consideration of the grant, which binds him and his legal representatives, and is not an incumbrance upon the land.'-^ Where a deed of land contained a reservation of pasturage for two cows during the lifetime of the grantor, or, in lieu thereof, the grantee's personal obligation to fit her yearly fuel for the stove, a stipulation in aid of the reservation, that the grantee "is not " to incumber or convey the land meantime, does not create an estate on condition.^ A clause in a deed poll, to the effect that the grantee agrees for himself, and for his heirs and assigns, that he and they will make and forever maintain a fence all around the granted premises, is of the same effect as an express covenant signed and sealed by the grantee. It runs with the land, and creates an incumbrance upon the land. By implication it recognizes that a subsequent grantee would be liable to the original grantor, in an action of assumpsit, for non-performance of the stipulation.'^ A provision in the form of an express condition in a deed for land within a city to be used as a cemetery that " the grantee, his successors and assigns, shall at all times maintain a good and sufficient fence around the premises," should be construed as a covenant, and not as creating a condition subsequent, where it is evident that the grantor, who owned lands on both sides, sought to impose a duty on the grantee to build all the fence inclosing the cemetery.^ 1 Hickey v. Lake Shore, &c. Ry. Co. Atl. Rep. 479. The deed contained the (Ohio) .36 N. E. Rep. 672. following provision : " Provided, and this - Parish v. Whitney, 3 Gray, 516; Ply- deed is upon the condition, that theabove- mouth i;. Carver, 16 Pick. 183. described premises are to be used and ^ Bray v. Hussey, 83 Me. 329, 22 Atl. occupied for the purpose of a burying Rep. 220. ground, and no other purpose; and that * Burbank v. Pillsbury, 48 N. H. 475, the grantee, his successors and assigns, 97 Am. Dec. 6.33; Kellogg v. Robinson, shall at all times maintain, build, and 6 Vt. 276, 27 Am. Dec. 550. keep a good and sufficient fence around ^ Scovill V. McMahon, 62 Conn. 378, 26 snid premi.c, and toimjiose the duty upon tended that the property should revert if the -rantee of buildin- all the fence in- the grantee failed to use it for the pur- closing the premises. This, we think, was pose designated. " But, in the absence his entire purpose, and thnt this i)rovisinn of nnv express provision for reentry or should be construed as a covenant, and forfeiture we think it is not unreasonable not as creating a condition subsequent. ' to conclude that the parties did not intend i Georgia So. R. Co. v. Keeves, 64 Ga. that, while the land was in n.^e as a place 492. See Countryman v. Deck, 13 Abb. of burial, and while it was filled with N. C. 110. '•raves and monuments, it should revert to ^ E„,,rson v. Simpson, 43 N. II. 4/^,, the grautor upon the failure of the grantee 82 Am. Dec. 168 ; I'age v. Palmer, 48 N. to maintain a fence. The description of II. 38.^>. 637 § G48.J CONDITIONS PRECEDENT AND SUBSEQUENT. A railway company made a deed })oll of land lying along its riiTJit of way, '" subject to the condition that the said grantee, his heirs and assigns, shall make and maintain good and sufficient fences on each side of the right of way of the railway as now loi-atcd, . . . which condition and obligation shall be perpetually bindind, and not to its grantee after he had ceased to be the owner. The fact that the companj^ imposed the condition that the grantee and " liis assigns ' should make and maintain the fences, and added thereto that the condition or obligation should be jserpetually binding on 'the owners of the land,' would indi- cate an intention to make ownei-shii) the test as to who should be bound to perform the condition in the deed." 1 Hickey r. Lake Shore, &c. Ry, Co. (Ohio) 36 N. E. Rep. 672. 538 NOT IMPLIED FROM THE PURPOSE OF THE GRANT, [§ 649. IV. JVot implied from the Purpose of the Grant. 649. A declaration of the purpose for which a conveyance is made, or for which the granted land is to be used, does not render the grant conditional. Thus, a grant of land " for a burying-place forever '' will not be construed as a grant on a con- dition subsequent, where there are no other words indicating an intent that the grant shall be void if the declared purpose is not fulfilled.! As said in the Duke of Norfolk's Case, words eo inten- tione do not make a condition, but a confidence and trust.^ As creating a trust or covenant they may, if properly expressed, be enjoved ; in such case, if the service be not performed, or the enjoyment of the right or ]irivilege be withheld which formed the consideration of a grant, the grantor will be relieved from the further exccuiion of the grant, to wit, the payment of the annuity. Shep. Touch. 124; Cowper w. Andrews, Hob. 41 ; Co. Litt. 204 a. But ordinarily the failure of the consideration of a grant of land, or tlie non-fulfilment of the purpose for which a conveyance by deed is made, will not of itself defeat an estate. The reason for this distiuciiou between the two classes of cases is, as stated by Coke, ' that the state of the laud is executed and the annuity executory.' Co. Litt. 204 a. . . . We believe there is no authoritative sanction for the doctrine that a deed is to be construed a grant on a condition subsequent, solely for the rea- son that it contains a clause declaring the purpo>e for which it is intended the granted premises sliall be used, where .'(ucli jiur- ])ose will not inure specially to liie benifit of the grantor and his assigns, but is in its nature for the general pul.lic, and where there are no other words indicating au intent that tlie grant is to be void if the declared purpo.'^e is not fulfilled." Contrary to the rule, and not good law now, see ihint v. Beeson, 18 Ind. 380; Indianapolis, &c. Ry. Co. v. Hood, 66 Ind. 580; Cleveland, &c. Ry. Co. i-. Coburn, 91 Ind. 5.57 ; Horner v. Chicago, M. & St. r. Uy. Co. 38 Wis. 165. •i Dyer, 138 6. 639 1 Rawson v. School Dist. 7 Allen, 125, 83 Am. Dec. 670. And see Stearns v. Palmer, 10 Met. 32; Bigelow v. Barr, 4 Ohio, 358 ; Watierson v. Ury, 5 Ohio C. C. 347 ; ]\Ii'thodist Prot. Ch. v. Laws, 7 Ohio C. C. 211; Brown i' Caldwell, 23 W. Va. 187, 48 Am. Rep. 376 ; Noyes ?;. St. Louis, &c. R. Co.'(Ill.) 21 N. E. Rep. 487 ; Portland v. Terwilliger, 16 Oreg. 465, 19 Pac. Rep. 90; Scoville v. McMahon, 62 Conn. 378, 26 Atl. Rep. 479 ; Coffin v. Portland, 16 Oreg. 77; Kirk v. King, 3 Pa. St. 436 ; Scheetz v. Fitzwater, 5 Pa. St. 126; First M. E. Church v. Old Co- lumbia Public Ground Co. 103 Pa. St. 609 ; Cook v. Trimble, 9 WaUs, 15 ; Union Canal Co. f. Young, 1 Whart.4l0; Perry i-. Scott, 51 Pa. St. 119 ; Lyon v. Hersey, 103 N. Y. 264 ; Olcott v. Gabert, 86 Tex. 121, 23 S. W. Rep. 985 ; Miller v. Tunica Co. 67 Miss. 651, 7 So. Rep. 429. In Rawson v. School District, 7 Al- len, 125, 83 Am. Dec. 670, Chief Jus- tice Bigelow said : " It is sometimes saiil that the words causa and pro, when used in deeds, create a condition ; that is, where a deed is made in express terms for a specific purpose, or in con- sideration of an act to be done or ser- vice rendered, it will be interpreted as creating a conditional estate. But this is an exception to the general rule, and is confiued to cases where the subject-matter of the grant is in its nature executory, as of an annuity to be paid for service to be rendered or a right or ])rivili'ge to be § 650.] CONDITIONS PRKCEDKNT AND SUBSKQUKNT. enforced, but not as creating a condition. Tims, the words ex- pressing the purpose of a grant to be " for a burying-j)]ace for- ever" may be sufficient to raise a trust for that purpose, but they are too equivocal to create a condition subsequent. Such a condi- tion will not be raised by infei'ence or implication merely. ^ A deed of land to be used for certain purposes only, which also provides that, if it is used for other purposes, a stipulated sum shall be paid the grantor in addition to the original (;onsideration, creates a condition which is discharged by ])ayment or tender of such sum.- Minuteness of direction concerning the administration of prop- erty conveyed to a public use is insufficient to take the case out of the rule, that the mere expression of a purpose or particular use to which property is to be appropriated will not make the estate a conditional one.^ 650. Especially if the purpose for which the property is to be used is in its nature public and general, no condition will be implied, and possibly not even raised, by the use of words of condition, if the language of the deed does not indicate an intent that the grant is to be void if the declared purpose is not fulfilled, but rather indicates a trust to be enforced.'* Thus, a conveyance 1 Eawson v. School Dist. 7 Allen, 125, Ind. 559, 10 N. E. Rep. 578 ; Wilkes Barre 83 Am. Dec. 670 ; Packard v. Ames, 16 v. Wyoming Hist. Soc. 134 Pa. St. 616, Gray, 327; Wilkes Barre v. Wyoming 19 Atl. Rep. 809; Greene v. O'Connor Hist. Soc. 134 Pa. St. 616, 19 Atl. Rep. (R. I.), 25 Atl. Rep. 692; Methodist Pro- 809 ; Bigelow v. Barr, 4 Ohio, 358; Kil- testant Church v. Laws, 7 Ohio C. C. 211 ; Patrick v. Mayor (Md.), 31 Atl. Rep. 805 ; Watterson v. Ury, 5 Ohio C. C. 355. Neely v. Hoskins, 84 Me. 386, 24 Atl. A grant of land to a counti/, upon the Rep. 882. sole consideration that the county seat 2 Board of Education v. Trustees, 63 had been establislied in the town where 111. 204. the land was situated, does not create a ^ Board of Com'rs v. Young, 59 Fed. condition upon which the land will revert Rep. 96, 105, per Lurton, J. to the grantor upon a removal of the * Sohier 1-. Trinity Churcli, 109 Mass. county seat. Sumner y. Darnell, 128 Ind. 1; Episcopal City Mission v. Ajjpleton, 38,27 N. E. Rep. 162; Adams y. Logan 117 Mass. 326; Rawson u. School Dist. 7 Co. II 111. 336; Harris /•. Shaw, 13 111. Allen, 125, 83 Am. Dec. 670; Ayer c 456; Kerlin r. Campbell, 15 Pa. Sf. 500 ; Emery, 14 Allen, 70; Field v. Providence, Gadberry v. Shejjpard, 27 Mi.ss. 203 ; Mil- 17 R. I. 803, 24 Atl. Rep. 143 ; Coffin v. ler v. Tunica Co. 67 Miss. 651, 7 So. Rep. Portland, 16 Oreg. 77, 17 Pac. Rep. 580; 429; Warren Co. r. Patterson, 56 III. Horner v. Chicago, M. & St. P. Ry. Co. HI ; Poitevent v. Hancock Co. 58 Miss. 38 Wis. 165, 175; Higbee v. Rodeman, 810; Gilmore y. Hayworth, 26 Tex. 89. 120 Ind. 244, 28 N. E. Rep. 442; School A r/rant for a school, college, or a like in- Township v. School Town of Macy, 109 stitution, and for no other purpose, does 540 NOT IMPLIED FROM THE PURPOSE OF THE GRANT. [§ 650. of land for a valuable consideration, in trust for the use of the inhabitants of a county, to accommodate the public service of the county, was held not to be defeated on a sale and conveyance by not create a condition. Kirk j;. King, 3 to pay off a mortgage ou a lot thereafter Pa. St. 436; Raley v. Umatilla Co. 15 acquired for a church edifice. //; re Oreg. 172, 13 Pac. Rep. 890; Heaston i'. United Presb. Ch. (Pa.) 30 Atl. Rep. Randolph Co. 20 Ind. 398; Higbee v. 1012. Rodeman, 129 lud. 244, 28 N. E. Rep. Where a devise was made to a religious 442 ; Curtis v. Topeka, 43 Kans. 138, 23 society, " to be and to remain to the use Pac. Ri'p. 98; Wilkes Barre c. Wyoming and benefit of said society and their suc- Hist. Soc. 134 Pa. St 616, 19 Atl. Rep. cessors forever, . . . provided that said 809 26 W. N. C. 247 ; Newbold v. Glenn, real estate be not ever hereafter sold or 67 Md. 489, 1 Atl. Rep. 242 ; Lawe v. disposed of, but the same may be leased Hyde, 39 Wis. 345 ; Taylor v. Binford, 37 or let, and the annual rents or profits ap- Ohio St. 262 ; Chapin v. School Dist. 35 plied to the use and benefit of the so- N. H. 445 ; Barker v. Barrows, 138 Mass. ciety," the Supreme Court held that the 578. In Newpoint Lodge v. Newpoint, 138 estate was not a conditional oue, and that Ind. 141, 37 N. E. Rep. 650, it was held the supposed conditions were to be re- that a deed which "conveys nnd warrants" garded as mere "limitations in trust." a parcel of land to a town " for the use of Stanley v. Colt, 5 Wall. 119. the common schools " passes the fee free 6'o a grant of land for a public square, or from condition. other public purpose, without an express A //rant of land for relif/ious purposes, or condition. Thornton v. Trammell, 39 church purposes only, does not create a Ga. 202 ; Wilkes Barre v. Wyoming Soc. condition. Taylor v. Binford, 37 Ohio St. 134 Pa. St. 616 ; Scantlin v. Garvin, 46 262; Packard v. Ames, 16 Gray, 327; Ind. 262 ; Warren i-. Lyons City, 22 Iowa, Carter v. Branson, 79 Ind. 14 ; Cook v. 351 ; Wellington v. Wellington, 46 Kans. Leggett, 88 Ind. 211; Schipper v. St. 213, 26 Pac. Rep. 415; Flaten i-. Moor- Pakis, .37 Ind. 505 ; Baldwin v. Atwood, head, 51 Minn. 518, .53 N. W. Rep. 807, 23 Conn. 367 ; Erwin r. Kurd, 13 Abb. where the provision was enforced as a N. C. 91 ; Farnhnm v. Thompson, 34 restriction. A grant of land to a city Minn. 330, 26 N. W. Rep. 9, 57 Am. Rep. " as and for a street, to be kept as a pub- 59 ; Cushman v. Church, 14 Pa. Co. Ct. lie highway," does not create a condition 26 ; Griffitts v. Cope, 17 Pa. St. 96 ; Bren- subsequent so as to work a forfeiture in dle'i;. German Ref. Cong. 33 Pa. St. 415 ; case the property is not maintained as a Strong r. Doty, 32 Wis 381. public street. Kilpatiirk v. Mayor (Md.). A deed to the bishop of a Roman Cath- 31 Atl, Rep. 805. olic church for the benefit of the church So a r,raut for a railroad depot or sta- vests the complete le-al title in the bishop, tion, or other specified purpo.'.e of the road. and thelandisnot forfeited to the grantor Noyes v. St. Louis, &c. R. Co. (HI.) 21 bv failure to occupv and use it for the N. E. Rep. 487 ; Morrill r. Wabash. &c. church. Gabert ;. Olcott (Tex. Civ. Ry. Co. 96 Mo. 174, 9 S. W. Hop. 6.57 ; App.), 22 S. W. Rep. 286 ; Olcott v. Ga- Kenney v. Wallace. 24 Hun, ^7H ; Thorn- bert 86 Tex 121, 23 S. W. Rep. 985. ton v. Trammell, 39 Ga. 202. A deed to the tmstces of a church " in 7'Ar followiun rases to the routrarj, not trust for said church, and for the s.^le use considered sound law : Horner r. Chicago, and behoof of the congregation " organ- M. & St. P. Ry. Co. 38 Wi... 16.5 ; Cleve- ized to build thereon and worship in said land, &c. Ry. Co. v. Coburn. 91 Ind. .557 ; building, gives the grantor no right to Indianapolis, &c. Ry. Co. v. Hood. 66 Ind. obiect to a sale of the lot by the church 580. 541 § G51.] CONDITIONS PRECEDENT AND SUBSEQUENT. the veiulees, wliereb}' the use for the public service ceased. ^ And so where a conveyauce was made to a county in fee simple, for the purpose of erecting thereon a court-house, jail, and county otlices, and the county was subsequent!}' divided, the seat of justice moved therefrom, the land sold and used for other pur- poses, and the proceeds thereof divided between the two coun- ties, it was held that the title did not revert to the heirs of the original owners.'-^ A deed of land for the sole use ot" a water company as a reservoir passes a title in fee simple, not deter- minable on the cessation of the use of the land for that ])urpose. Chief Justice Mercur said : " No restraint was imposed on an alienation of the land. . . , No clause provided for a forfeiture or termination of the estate in case the land ceased to be used as a reservoir. No right of reentry was reserved by the grantor on any contingenc}'. No technical word to create a condition was used. No other words were used equivalent thereto, or })roper to create a condition. The authorities show tliat the recital of the consid- eration, and a statement of the purpose for which the land is to be used, are wholl}' insufficient to create a conditional estate." ^ 651. When the purpose is public and general, and does not inure specially to the benefit of the grantor, no condition is created, though such in form, in the absence of an express reser- vation of a right to reenter on a failure of the grantee to use the land in the manner provided. Thus, where land was conveyed to a city " on condition that it shall be forever kept open and used as a public highway, and for no other purpose," it was held that this clause merely declared the purpose of the conveyance, and was not a condition subsequent. " Such a declaration," say the court,* " does not create an estate on condition, but merely im- poses a confidence or trust on the land, or raises an implied agree- ment on the part of the grantee to use the land for the purpose specified. It matters not that the statement of the purpose for which the land was conveyed is in the form of a condition. The employment of apt words to create a condition does not neces- sarily and invariabl}' have that effect, for these may give way 1 Kerlin v. Campbell, 15 Pa. St. 500. « First Methodist Church v. Old Co- 2 Seebold v. Shitler, 34 Pa. St. 133. lumbia Public Ground Co. 103 Pa. St. The Pennsylvania court has alwaj-s ad- 608, 614. hered to the rule that "the mere expres- * (ircene v. O'Connor, 18 K. I. 49, 25 BJon of a purpose will not, of and by itself, Atl. Hep. t)'.)2. debase a fee." 542 NOT IMPLIED FROM THE PURPOSE OF THE GRANT. [§ 662. to the intent of the party us ascertained by a construction of the instrument."' 652. When any conditions annexed to a grant or convey- ance of lands are merely nominal, and evince no intention of actual or substantial benefit to the party to whom or in whose favor they are to be perfnrmed, they may be wholly disregarded, and a failure to perform tlie same shall in no case operate as a forfeiture of the lands conveyed subject thereto. Such is the law declared by statute in Michigan ^ and Minnesota.'^ A conveyance was made i>f a parcel of land with a church edi- fice thereon, for a consideration not extremely inadequate under the circumstances for the interest actually conveyed, " upon the condition that the property shall be forever held for the use of the Protestant Episcopal Church in Old Town." The clmrch after a time abandoned the property and allowed it to fall into decay. 1 Howells' Annot. Stats. 1882, § 5562; Bariie v. Smith, 47 Mich. 130, 10 N. W. Rep. 168. 2 G. S. 1878, ch. 45, § 46 ; G. S. 1891, §3956; G. S. 1894, § 4407. See Sioux City & St. P. R. Co. V. Singer, 49 Minn. 301, 51 _N. W. Rep. 905. This statute was interpreted by the court, Dickinson, .7., saying : ''It may be apparent, from the very nature of the condition, that it was not intended to confer or reserve any real benefit to the grantor or to any other person. Such, for instance, would be a condition, annexed to the granting of a fee, that the grantee should yearly deliver an ear of corn to the grantor, or render any specified but unsubstantial service. To such a case the statute would apply. Again, a condition may be such that proof beyond the deed itself would be necessary to disclose the fact whether the expressed condition was or was not sub- stantially beneficial. We will suppose that the owner of a lot conveys it witli the express condition that no building shall be erected on it for a period of ten . lyears. It cannot be said from its terms that this condition was not reasonably in- tended to be, or that it was not, actually beneficial to the grantor. To such a case, no more being shown, the statute is not applicable. The court cannot declare the condition to be " merely nominal," atid to " evince no intention of actual or sub- stantial benefit." It requires that the court be further informed as to facts not disclosed by the deed before it can declare the condition, to which the parties have solemnly agreed, to be of no legal effect. If the grantor should be found to own adjoining lands, which were so improved that the erection of a building upon the granted lot would seriously impair their value and usefulness, the condition would, without doubt, be valid. On the other hand, the grantee, to def.'at the condition, might show that the grantor had no actual or pro.-pective interest in the adjoining premises, was in no manner concerned in them or in their use, and tliat tliey were unimproved." He might thus show him- self entitled to the benefit of the statute, if, indeed, the statute confers any benefit bevond what the common law would give." The ca.se holds that a condition that intoxicating liquor shall not be mjWI on the granted land cannot be declared to be " merely nominal " in the ab.sence of any proof that the ])laintiff had no special in- terest in the observance of the condition. The court dily, 2 S. & K. 507,7 gal 1-. Fryer, 3 Mo. 40, 22 Am. Dec. 4.')8. Am. Dec. 054. See, liowever, Taylor v. See, however, to the contrary, Tvvitiy i: Mason, 9 Wlieat. 325, 3.50. Cam)), Pliil. (N. C.) Eq. 61, and Houidin '' Hunt v. Wright, 47 N. M. SJMi, -.3 V. Miller (Tex.), 28 S. W. Hop. 940, Am. Dee. 451. Contra, Lovett i-. Gillen- where a conveyance to n.in<.rs, " to be der, 35 N. Y. 617 ; Smiih r. Clark, 10 Md. held in common and unsold " until the 186. youngest shall become of age, is a eon- * /» re Maclcay, L. II. 20 K(|. 186. veyanceof a fee simple without a condi- Contra, McCollough v. Gilmore, 11 Ta. tion, the breach of which would avoid the St. 3/0. estate. ^^^ ^§ Go'.', 670.] CONDITIONS PRECEDENT AiND SUBSEQUENT. 669. A condition not to convey without first giving the grantor the privilege of repurchasing is void. So is a coiuli- tion requiring the payment of money for the privilege of alienat- ing to a stranger.! A condition not to alien the land without first giving the grantor, his heirs or assigns, the privilege of repurchasing, was held void in North Carolina because the condition was indefinite as to time, and might be exercised whenever the property should be sold, and indefinite as to the amount to be paid upon repur- chase.^ A condition or covenant that the grantor should " at any time " have the right of " preeimption " of the property conveyed "at and after the same price as the above-mentioned consideration," gives the grantor the option to purchase at that price in prefer- ence to any other person, in case the owner desired or offered to sell at the price specified.^ 670. A condition that is repugnant to the grant is void.* " A condition annexed to an estate given is a divided clause from the grant, and therefore cannot frustrate the grant pre- ceding, neither in anything expressed nor in anything implied which is of its nature incident and inseparable from the thing granted." ^ A condition that the land conveyed, or so much of it as the grantee has not sold and conveyed, shall upon his decease revert 1 Shep. Touch. 130; King v. Burcliell, price when opened for sale, in preference Arab. 379; Bassett v. Budlong, 77 Mich, to any one else, is called the ri;;lit of pro- 338, 347, 43 N. W. Rep. 984 ; De Peystor eniption in the practice of the government 17. Michael, 6 N. Y. 467, 57 Am. Dec. and in the decisions of the United States 470; Livingston v. Stirkles, 7 11111,253. courts. The term is used here to express The case of Jackson v. Schutz, 18 Johns, the idea that some one has the first right 174, 9 Am. Dec. 195, which is sometimes to purchase when the land is offered for cited in favor of the validity of a condi- sale, or the option of buying first." tiou giving the grantor the option of re- * Bradley v. Peixdto, 3 Ves. Jr. 324 ; purchasing, was upon this point the de- Brandon v. Robinson, 18 Ves. 429, 433, cision of a single judge, the other judges per Lord Ch. Eldon ; Gadberry v. Shep- basing their deci.sion upon another pard, 27 Miss. 203 ; Littlefield v. Mott, 14 ground. R.L288; Pynchon r. Stearns, 11 Met. 2 Hardy V. Galloway, 111 N. C. 519, 15 312,45 Am. Dec. 210; Bassett v. Bud- S. E. Rep. 890. " long, 77 Mich. 338, 43 N. W. Rep. 984, 3 Garcia v. Callender, 125 N. Y. 307, 18 Am. St. Rep. 404. Georgia: Code 311, 26 N. E. Rep. 28.3. O'Brien, J., 1882, § 2296; Taylor v. Sutton, 15 Ga. said : " The right of a person to purchase 103, 60 Am. Dec. 682. some part of the public lands at a specified ^ Stukeley v. Butler, Hob. 168. 556 VOID CONDITIONS. [§§ 671, 672. to the grantor, is repugnant to the grant, which was in fee simple, and is therefore void.^ But in M conveyance in fee by a husband to a trustee for tbe use of bis wife and children, a condition that if be should survive his wife the whole property should revert to him free from the trust is valid, and may be enforced.^ A condition that tbe conveyance shall be void upon the failure of the grantee to pay the purchase-money is not void as being repugnant to tbe grant.^ 671. A condition that intoxicating liquors shall not be man- ufactured or sold upon the granted lands is valid, for it is not subversive of the estate conveyed.'* It leaves the estate alienable and inheritable, and free to be subjected to other uses. Such a condition may be enforced by forfeiture if advantage be promptly taken of any breach of it. Such a condition is not void as being in restraint of trade, so far as the grantor has in his own business an interest in enforcing it.5 Nor is the condition opposed to public policy as tending to establish a monopoly in the business of selling intoxicating liquors. " It is not the policy of the State that every one should sell intoxicating drinks who pleases. On the contrary, heavy taxes are levied and onerous conditions imposed by the State for tbe express purpose of limitbig the number of those who shall sell, and the condition in question is directly in tbe line of that policy, instead of being opposed to it." ^ 672. This is certainly the rule if the grantor has any special andT substantial interest in tbe enforcement of the condition. Upon this point of the grantor's interest the Su- 1 Ide I'. Ide, 5 Mass. 500 : Case v. De- 7.% ; Jenks v. Pawlowski, 98 Mich. 110, wire, 60 Iowa, 442, 15 N. W. Kep. 265; 56 N. W. Rep. 1105; Watrons r. Allen, Second Reformed I'resb. Church v. Dis- 57 Mich. .362; 24 N. W. Rep. 104, 58 Am. brow, 52 Pa. St. 219. Rep. .•56.'5 ; Smith v. Barrie, 56 Mich. 314, 2 Woods V. Woods, 87 Ga. 562, 13 S. 22 N. W. Rep. 816. .56 Am. Dec. 391; E. Rep. 692. O'Brien v. Wetliercll, 14 Kans. 616; Jef- 3 Tavlor v. Sutton, 15 Ga. 103, 60 Am. fcry v. Graham, 61 Tex. 4S1 ; Odessa Im- j)qc 682. provement Co. v. Dawson, 5 Tex. Civ. 4 Cowell c. Springs Co. 100 U. S. 55; App. 487. 24 S. W. Rep. 576. Collins Manuf. Co. v. Marcy, 25 Conn. ^ Watrous i;. Allen, 57 Mich. 362, 24 242 ; Plumb v. Tubbs, 41 N. Y. 442 ; At- N. W. Rep. 104, 58 Am. Rep. 363. lauti'c Dock Co. V. Leavitt, 54 N. Y. 35, « Watrous v. Allen, 57 Mich. 362, 24 13 Am. Rep. 556; Lehigh (^oal & N. Co. N. W. Rep. 104, 58 Am. Rep. 363, per V. Earlv, 34 W. N. C. 501, 2^ AM l!ii'. Cooley, C. J. 557 § 673.] CONDITIONS PRECEDENT AND SUBSEQUENT. })r(Mne Court of Minnesota say : " Whether such a condition would be deemed void, upon grounds of public policy, if it should appear that the grantor had no such interest, we do not decide. Upon the face of the deed nothing appears which could render v«tid the express condition upon which the conveyance is made anil accepted. A gi antor nia)-, at least under some circumstances, olTectually impose such a condition upon a conveyance of the estate ; and it is not necessary, in order to make ^j)nma facie valid the condition expressed in the deed, that the deed shall set forth or recite tlie peculiar facts which may legally justify the grantor in annexing the coiidition to the grant. On its face the condition is effectual. It attends and qualifies the grant. The estate is conveyed and accepted in terms subject to it. If this condition is to be avoided, because in the particular case the circumstances of tlie grantor were not such as to authorize him to thus restrict or qualify the conveyance of his estate, it can be only upon affirmative proof of the fact relied upon for that purpose. If not thus avoided, the deed must have effect accord- ing to its terms, to which the parties have assented." ^ In Michigan and Minnesota there is a statutory provision that conditions annexed to a conveyance of land which are merely nominal may be disregarded. But it is held that a condition that intoxicating liquors shall not be sold as a beverage upon the land conveyed cannot be regarded as a merely nominal condition within the meaning of the statute.^ 673. A condition not to place windo"ws in a wall adjoining lands of a neighbor is valid. " It is not necessary, in order to make a condition valid, that the party creating it should have any beneficial interest in any other estate which may be usefully affected by the condition. He may have conveyed an adjoining estate for the benefit of which this condition was created. He may have received a greater price for that estate on account of this condition, and justice to others may require that he should exact its performance. ... It seems to us that there are many things which may be provided for as conditions in a deed, which, though of small consideration in the view of a stranger, may be thought of great importance by the grantor. A man has a 1 Sioux City & St. Paul R. Co. ?•. - Sioux City & St. P. R. Co. v. Singer, Singer, 49 iMinn. 301, 305, 51 N. W. 49 Minn. 301, 51 N. W. Rep. 905, 32 Am, Rep. 905. St. Hop. 5.54. 558 VOID CONDITIONS. [§§ 674, 675. vacant lot in front of bis dwelling-house which somebody is desir- ous to buy, and he is willing to sell, if thereby his light and air sball not be too much obstructed, ^lay he not sell it under a condition that no building shall be erected beyond a certain height, or within a certain distance from his house, or that the land shall not be used for the purpose of a tavern, or for any par- ticular business which is likely to be noisy or troublesome, at lea-st for a limited number of years? Who is prejudiced by such a condition ? The purchaser and all who may claim under him have notice of the restriction, and, if it diminishes the value of the land, they get their compensation in the price." ^ 674. Conditions subsequent impossible of performance are void.2 '■' If," says Blackstone, " they be impossible at the time of their creation, or afterwards become impossible by the act of God, or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, they are void." The estate in such case becomes absolute in the grantee immedi- ately upon the execution of the deed. " For he hath by the giant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant." ^ 675. A forfeiture is excused when the breach of condition was occasioned by the act of the law. In a leading English case land was demised to trustees for the benefit of the poor of a parish, the trustees covenanting to build a workhouse thereon, and to use, occupy, possess, and enjoy the premises for the sole use, 1 Gray v Blanchard, 8 Pick. 284, 290, People v. Manning, 8 Cow. 297 ; Lamb per I'arker, C. J. ^•- Mi^er, 18 Pa. St. 448; Culin's App. 2 Shep. Touch. 132; Doe v. Rugeley, 20 Pa. St. 248; Wheeler v. Moody, 9 6 Q. B. 107, 114; Davis v. Gray, 16 Tex. .372; Blauchard v. Morcy, .'iC Vt. Wall. 20.3; United States v. Arredoudo, 170; Jones v. Chesaj.euke, &c. K. Co. 14 6 Pet 69l' 74.5; Hughes v. Edwards, 9 W. Va. .514; Biirnhani v. Bumliani, 79 Wheat. 489; Finlay v. King, 3 Pet. 346, Wis. 557, 567, 48 N. W. Hep. 601. Cali- 374- Rogers v. Sebastian Co. 21 Ark. fornia : Civ. Code, § 1441. Louisiana: 440 i Taylor v. Sutton, 15 Ga. 103, 60 Physical and moral impossibilitio> only Am' Dec. 682; Jones v. Walker, 13 B. are intended by the prece.iing articles. If Mon. 163, 56 Am. Dec. 557 ; Randall v. the condition he only relatively inii)os8i- Marble 69 Mc. 310, 31 Am. Rep. 281 ; bic, that is to say, impracticable by the Morse v. Ilayden, 82 Me. 227 ; Parker v. obligor, only from the want of skill, Parker 1 0.3 Mass. 584 ; Merrill (^ Emery, strength, or means, but practicable by 10 Pick 507 • Weathersby v. Wcaihcrsby, another, it is not an impo.ssibio condition. 13 Sm & M.'685 ; Barks'dale v. Elam, 30 R. Civ. Code 1889, § 20.33. Miss. 694 ; Martin .. Ballon, 13 Barb. « 2 Bl. Comm. 156 ; Parker .. Parker, 119; W^hitney v. Spencer, 4 Cow. 39; 123 Mass. 584. 559 § (575.] CONDITIONS PRECEDENT AND SUBSEQUENT. Huiiiitenanee, and sujiport of the poor of Rugeley, and not to con- vert the buikling or the hmd, or employ the profits thereof, to any other use, intent, or purpose whatever. There was a proviso for reentry on breach of the covenant. The house was biiilt, and the land was used for many years as required by the deed. After- wards an act of Parliament was passed, and the parish incorpo- rated with others, and a union poor-liouse provided, to which the act required all paupers should be lemoved. The heii's of the grantor brought suit in ejectment, claiming the right of reentry for breach of the condition. The court held that, " even if the condition was not performed, it appears to us that the non-per- formance w'ould in this case be excused, as being by act of law, and involuntary on the part of the lessees." ^ And so, where land had been conveyed for use as a burial ground, with apt words creating a condition subsequent that the property should revert to the grantor if the grantee failed to use it for that pvirpose, and the land was used for such purpose until it became a public nuisance, and the State, by legislative act, forbade further interment therein, the condition of the deed was held to be destroyed, and the title vested absolutely in the grantee. The court said : "' It is clear that the performance of the condi- tion of the deed has been prevented by act of law." ^ A condition that the granted land shall be used for a place of burial, and for no other purpose, is destroyed when the State, in the proper and reasonable exercise of its police power, prohibits further interments in the land, and the title thereupon vests abso- lutely in the grantee.'^ 1 Doe dem. Marquis of Anglesea v. New Britain, 55 Conn. 378, II Atl. Rep. Rugeley, 6 Q. B. 107. The court cited 354; State v. Wonlin, 56 Conn. 216, 14 Bac. Ahr. tit. " Condition ; " Com. Dig. tit. Atl. Rep. 801 ; Woodruff v. Railroad Co. "Condition ; " and the case of Brewster 59 Conn. 63, 20 Atl. Rep. 17. V. Kitchell, 1 Salk. 198, 1 Ld. Raym. 317. » Scovill v. McMahori, 62 Conn. 378, See Doe dem. Lord Grautlcy v. Butcher, 390, 26 Atl. Rep. 479. Hall, J., said : 6 Q. B. 115, to the same effect. The "If it should be said that the plaintiffs' above case is stated, in the language of interests in this property had been taken Mr. Justice Lurton, in Board of Coni'rs from them by the State or by the city of V. Young, 59 Fed. Rep. 96, which case Waterbnry by right of eminent domain, supports the same principle. See, also, we should reach the same conclusion upon Mitchel V. Reynolds, 1 P. Wms. 181. the question of whether the condition of ■^ Scovill V. McMahon, 62 Conn. 378, the deed had been broken. If the city 26 Atl. Rep. 479 ; Raymond v. Fish, 51 of Waterbury, by taking tliis land for a Conn. 80, 50 Am. Rep. 3 ; Dunham v. public park, under tlie valid act of the 560 VOID CONDITIONS. [§§ 676, 677. Where a city or town holds land under a grant for a burying- ground, and to be appropriated for no other use or purpose what- soever, the title reverts" to the grantors when the land can no longer be used for such purpose by reason of an ordinance of the municipality and an act of the legislature prohibiting the use of such land for burial purposes.^ But the performance of such a condition is not excused or dispensed with for the reason that the person who is bound for its performance is under a disability, such as infancy or mai'riage.2 676. If a condition precedent becomes impossible the grant fails, because no estate vests in the grantee until the condi- tion is performed.3 In a sale and conveyance by a railroad com- pany of its right of way, roadbed, and property in general to another railroad company, conditions that the deed should not become operative until the purchasing corporation should, among other things, complete the road within a given time and issue paid-up stock to the selling company, are conditions precedent, and, if the conditions are not complied with, upon the bankruptcy of the purchasing company, the conditions become impossible of performance, and the title remains, and must remain, in the selling company.^ 677. If the performance of the condition, whether prece- dent or subsequent, is rendered impossible by the grantor's own act, he cannot complain of a breach of it, and regain the legislature, has jirevented its use as a passed an ordinauce prohilnting the fur- burial place, it is clear that the ])erform- ther use of it for such purposes. The anceof the condition of the deed has been ordinance was declared to be a valid ex- prevented by act of law; and we know of crcise of the police power, and also to no principle or authority by which the operate as a complete abandonment of the taking of the property under the right of dedicated use, by which the lands reverted eminent domain would work a forfeiture to the original owner, which would require pnyment both to the -' Barker i;. Cobb, ."56 N. H. 344 ; Gar- plaintiffs of the value of the land and to rett v. Scouten, 3 Dcnio, 334. the defendant of the value of the estate ^ Stockton v. Weber, 98 Cal. 433, 33 forfeited." See, also, Portland i\ Terwil- Pac. Rep. 332, 335; Martin v. Ballon, ligcr, IG Oreg. 465, 19 Pac. Kep. 90. 13 Barb. 119, Blean i;. Messenger, 33 i Mayor i;. Watson (N.J. ), 29 Atl. Rep. N. J. L. 499; Jones v. Bramblet, 2 111. 487. So, also, in Young v. Board. h\ PYmI. 27C. Rep. .58.5, the lands were donated by the * Tennessee &c. R. Co. v. East Ala. owner of the fee to a municipnl iiody for a Ry. Co. 73 Ala. 42G. burying-ground, and that body afterwards 661 § 678.] CONDITIONS PRECEDENT AND SUBSEQUENT. estate by a reentry. ^ The condition is no longer binding, and the estate is discharged therefrom. A grantiir who enters bcfoi-c a breach of the condition, prima facie prevents a. pei-formanee of the condition.'-^ A condition is void if it is stated so indefinitely that it is impossihlt' to determine with certainty the event upon vs^hich the estate is to arise or be defeated.^ VI. Performance and Forfeiture. 678. A condition, when relied upon to work a forfeiture, is construed with great strictness.^ The grantor must stand on his legal rights, and any ambiguity in his deed or defect in the 1 United States v. Ariedondo, 6 Pet. 691, 74.5 ; Gray v. Blaiichard, 8 Pick. 284 ; Elkhart Car Co. v. Ellis, 113 Ind. 215, 1.5 N. E. Rep. 249; Leonard v. Smitli, 80 Iowa, 194, 4.5 N. W. Rep. 762; Jones v. Brnmblet, 2 111. 276 ; Houghton v. Steele, 58 Cal. 421 ; Jones v. Walker, 13 B. Mod. 163, 56 Am. Dec. 557 ; Youug v. Hunter, 6 N. Y. 203 ; Whitney v. Spencer, 4 Cow. 39; Jones v. Che.sapeake & 0. R. Co. 14 W. Va. 514 ; Mizell v. Burnett, 4 Jones L. 249, 69 Am. Dee. 744. Louisiana : The condition is considered as fidfilled when the fulfilment of it has been prevented by the i)arty bound to perform it. R. Civ. Code 18S9, § 2040. 2 Elkhart Car Works Co. v. Ellis, 113 Ind. 215, 15 N. E. Rep. 249. 3 Sliep. Touch. 128 ; Doe v. Cai'ew, 2 Q. B. 317 ; Fillingham v. Bromley, Turn. & Russ. 530. 4 Radford v. WiHis, L. R. 7 Ch. 7. California: Civ. Coile, § 1442; Los An- f^eles CeiTi. Asso. v. Los Angeles, 95 Cal. 420, 30 Pac. Rep. 523. Florida: Jenkins V. Merritt, 17 Fla. 304. Georgia : Taylor V. Sutton, 15 Ga. 103, 60 Am. Dec. 682. Illinois : Voris v. Renshaw, 49 111. 425 ; Wilson V. Gait, 18 III. 431. Indiana: Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Hunt v. Bee.son, 18 Ind. 380. Maine : Hooper i'. Cummings, 45 Me. 359 ; Laberee v. Carlcton, 53 Me. 211 ; Osgood V. Abbott, 58 Me. 73. Mary- 562 land : Glenn v. Davis, 35 Md. 208, 6 Am. Rep. 389. Massachusetts : Crane v. Hyde Park, 135 Mass. 147, 149; Bradstreet v. Clark, 21 Pick. 389 ; Hadlcy v. Hadiey Manuf. Co. 4 Gray, 140 ; Mcrrifield v. Cobleigh, 4 Cush. 178. Michigan: Bar- rie V. Smith, 47 Mich. 130, 10 N. W. Rep. 168 ; Waldron v. Toledo, &c. Ry. Co. 55 Mich. 420, 21 N. W. Rep. 870. Missis- sippi : Gadberry r. Sheppard, 27 Miss. 203. New Hampshire : Page v. Palmer, 48 N. H. 385 ; Emerson v. Simpson, 43 N. II. 475, 82 Am. Dec. 68 ; Hoyt v. Kimball, 49 N. H. 322 ; Chapin v. School Dist. 35 N. H. 445. New Jersey : McKel- way V. Seymour, 29 N. J. L. 321 ; South- ard ('. Cent. R. Co. 26 N. J. L. 13. New York: Lynde v. Hough, 27 Barb. 415; Ludlow V. New York, &c. R. Co. 12 Barb. 440; AVilliams v. Dakin, 22 Wend. 201 ; Woodworth v. Payne, 74 N. Y. 196, 30 Am. Rep. 298; Craig v. Wells, 11 N. Y. 315; Rose v. Hawley, 141 N. Y. 366, 36 N. E. Rep. 335, 133 N. Y. 315, 31 N. E. Rep. 236, 118 N. Y. 502, 23 N. E. Rep. 904. North Dakota and South Dakota : Dak. Comp. Laws 1887, § 3435. Penn- sylvania : Sharon Iron Co. v. Erie, 41 Pa. St. 341 ; Newman r. Rutter, 8 Watts, 51 ; Lehigh Coal & N. Co. v. Early, 34 W. N. C. 501, 29 Atl. Rep. 736. Wis- consin : Mills V. Evansville Seminary, 58 Wis. 135, 15 N. W. Rep. 133. PERFORMANCE AND FORFEITURE. [§§ 679, o8u. evidence offered to show a breach will be taken most sti-ongly against him and iu favor of the grantee. 679. A condition will not be extended beyond its express terms by construction. The grantor must bring himself within these terms to entitle him to a forfeiture.^ Thus a condition that the grantee shall not convey the property prior to a day named, which was about ten years after the date of the conveyance, ex- cept by a lease lor years, was not broken by a lease for ninety- nine years, though the grantee at the same time gave the lessee a bond for a conveyance in fee, to be executed after the period of limitation. Neither the bond nor the lease was a conveyance of the property. Nor do both instruments together constitute a conveyance, and therefore they cannot be made the ground for a forfeiture.^ Under a conveyance of land to a county for " county purposes," a court-house and jail were erected upon it, but subsequently the county town was removed to another place. There was nothing in the deed requiring the county to devote the land to any spe- cial county purpose, and therefore it was held that the mere removal of the county town was no evidence of an intention to abandon the property, or to devote it to any other than county purposes.'^ 680. It must be shown that the spirit and purpose of the condition have been wilfully disregarded by the grantee to establish a breach of it which will authorize a reentry by the grantor. He is required to establish something more than a technical breach through the action of a stranger without the grantee's permission. A conveyance was madc^ to the town of Yonkers " upon the express condition that the strip of land form- ing part of the premises above described, and being twelve feet and six inches in width, and extending all along said Academy Street, shall forever hereafter be' and remain a part of said Acad- emy Street, and shall never be used for any other purpose whatso- ever. And also that all the residue of said land liereby conveyed shall forever hereafter be and remain public and open as a public 1 Shep. Touch. 133 ; Voris v. Renshaw, road Co. 40 KanH. 130, 19 Pac. Rep. 316; 49 111. 425; Emerson v. Simpson, 43 N. Gadbeiry i;. Shepimrd, 27 Miss. 203. H. 473 ; Iladley v. Hadley Manuf. Co. 4 ^ Voris v. Renshaw, 49 III. 42.5. Gray, 140; Lynde r. Hough, 27 Barb. ' Poitevent v. Supervisors, .58 Miss. 415; Ritchie v. Kansas, &c. Ry. Co. 810; Miller v. Tunica Co. 67 Miss. 651, (Kans.) 39 Pac. Rep. 718; Wier v. Rail- 7 So. K.p. 429. (}63 § 08 1.] CONDITIONS PRECEDENT AND SUBSEQUENT. liiglnviiy, and that no house, building, or other erection whatsoever, except a public monniuent, shall ever be built or ei'ected or per- niittt'd upiMi tlie said land, or upon any part thereof" The owner of adjoining land erected a building which encroached upon the highway at one end sixteen inches, and at the otiier two inches, and he also excavated an area under the sidew;dk which was covered with gratings. The grantor claimed a breach of the condition and a right of reentry. It was held that the town had not done or knowingly permitted anything which amounted to a breach of the condition within any fair and reasonable construc- tion of it. As to the area under the sidewalk the court said : "The purpose of the condition was to preserve the land conveyed for public purposes, and it was not violated by permitting the soil or space imder the sidewalk to be used in such a manner as is usual and common in cities and villages, as such use is in no sense inconsistent with that of the public for the purpose of a sidewalk for persons passing along the street." As to the encroachment of the wall of the building upon the highway the court said : " If it be admitted that this small strip of land was included in the plaintiff's grant to the municipality for public purposes, and that it has by an honest mistake been appropriated to a private purpose in the manner disclosed by the record, the breach of the condition, if any, would be purely technical, and of such an unsubstantial chai'acter as to warrant the conclusion that it was not within the purpose or intention of the parties to the convey- ance." 1 681. A substantial performance of the condition discharges it, and it is for the jury to say whether the condition has been in substance performed.^ Where the condition was for the payment of a certain annuity by the grantee to the grantor on a given day in each year during the life of the grantor, the condition was not broken so long as the annuity was not in arrears. " The annuity, although payable in money, could be discharged by payment other- wise, by mutual stipulation and consent ; and if the grantor, after he had parted with the pi-operty, agreed to take, in lieu of the 1 Rose V. Ilawley, 141 N. Y. 366, 376, Wilson v. Gait, 18 111. 431 ; Chapin v. 378, 36 N. E. Rep. 335. School Dist. 35 N. H 445; Southard v. 2 Spaulding v. Hallenbeck, 39 Barb. Central R. Co. 26 N. J. L. 13; Plummer 79, 85 ; Avery v. New York Cent. & H. v. Neile, 6 Watts & S. 91. R. Co. 121 N. Y. 31, 24 N. E. Rep. 20 ; .5B4 PERFORMANCE AND FORFEITURE. [§ 681. annuity stipulated iu the deed, the rents and profits of the prem- ises produced by his own management and superintendence of the property, and did' in fact take charge of the property and receive the rents and profits in accordance with this agreement, this was a discharge of the annuity as to each year in which pay- ment was received in this manner." Parol evidence of such agreeuient is admissible.^ A condition, in a deed to a railroad company of a right of way, that it shall erect a station for the convenient shipment of freight, the character of which is not specified, is complied with by erec- tion of a board shed, without the placing of an agent there, it being in structure and in the mode of its management like most of tlie stations on the road." A grantor conveyed to a railroad company a strip of land be- tween grantor's hotel and the company's depot property, which was south of the hotel. The deed contained a clause that the conveyance was "on condition that the said railroad company . . . shall at all times maintain an opening into the premises hereby conveyed, opposite the Exchange Hotel, so called, adjacent to the premises hereby conveyed, for the convenient access of pas- sengers and their baggage to and from said premises." At the time of the conveyance, defendant's trains stopped opposite to the hotel, so that passengers would cross the strip conveyed in reach- ing the hotel. Afterwards defendant erected a depot on the west side of the hotel, closed up the opening in the strip, and opened a gateway on the east side of the depot, leading directly into the hotel propertv, but not across the strip. It was held that, as the purpose of tlie clause was to secure to the hotel a direct com- munication with the d(>pot, this was a substantial and suflicient compliance with it.'^ A condition that a manufacturing company shall "transfer" its " works " to certain land does not require tliat the identical build- ings and machinery be removed.' Whore a life estate was reserved to the grantor, provided he should at all times keep the i)roperty insured for the benefit of 1 Denham v. Wallur (Ga.), 21 S. K. 121 N. Y. 31, 24 N. E. Rep. 20, reversing Rep. 10'... 2N.Y.Supp. 101. - Calthvell V. East Broa-l T..p R- Co. ' Hanna v. Soutl. St. Jo. Land Co. (Pa.) 32 Atl. Rep. 85. (Mo.) 28 S. W. Rep. 6.52. 3 Avery u. ]Sew York Cent. & II. R. Co. 565 §;^ G8l2, 680.] CONDI MONS rKF.CEr)F:NT AND SUBSEQUENT. thosi> owning the insurable interest, and by oversiglit the policy was written jiayable. to the grantor alone, the life estate was held not lo be foi'feited, especially as tlie grantee failed for ten years to c;ill attention to the form of the policy, and did not ask to have a pi'oper one taken out, and as it appeared that the grantor in good faith attempted to comply with the conditions of the d.-ed.i 682. A condition must be performed within a reasonable time when no time is specified within which it is to be per- formed.^ Thus a condition to pay a mortgage upon the property conveyed must be performed within a reasonable time after the mortgage becomes due ; and a condition to pay marriage portions to the grantor's daughters must be performed within a reasonable time after receivinij notice of their marriage.^ A condition which expressly provides for performance within a reasonable time is construed in the same manner as a condition which implies a performance within a reasonable time. Where the condition was that the grantee should within a reasonable time build a church upon the land, the court took judicial notice of the fact that an unexplained delay of twenty-nine years within which to commence to build a church is unreasonable.* A condition to be performed at the convenience of the grantee should be performed within a reasonable time. What is a rea- sonable time is a question of law to be determined according to the facts and circumstances of the case.^ 683. If laud is granted upon a condition for the perform- ance of which no time is limited, either in express terms or from the nature of the condition itself, it is a general rule that the grantee has his lifetime for performance.^ But if it appears that a prompt performance was contemplated by the parties, or is necessary to give the grantor the benefits he was reasonably 1 Ilurto V. Graut (Iowa), 57 N. W. Eep. ^ Ross v. Tremair, 2 Met. 495; Rovvell 899. V. Jowett, 69 Me. 293. ■■2 Shep. Touc-h. 134; Rowell y. Jcwelt, ^ Upington v. Corrigan, 69 Hun, 320, 69 Me. 293, 71 Me. 408; Fisk v. Chand- 23 N. Y. Supp. 451. ler, 30 Me. 79; Stuyvesant v. Now York, ^ Adams v. Ore Knob Copper Co. 4 11 Paige, 414; Hamilton v. Elliott, 5 Hue3. This act does not apply to tx- State Bauk v. Hammond, 1 Doug. (Mich.) istiiig conditions or restrictions, or to st.ch 527. as may be contained in a deed, gift, or 567 § i>-T.] CONDITIONS PRECEDENT AND SUBSEQUENT. that tli(^ land shall revert if it shall cease to be so used, is not broken by any incidental or collateral use, to which the land may be temporarily devoted, which does not conflict with its continued use for court-liouse ]iurposes, as, by failure to inclose it entirely witli a fence, and allowing hitcliing-posts for public use to be ei'ected on the uninclosed portion, or a temporary structure for posting bills. ^ Where land is conveyed upon condition that it shall be used for a certain purpose, it is no ground of forfeiture if it is used for other purposes, provided it is also used for the purpose for which it was conveyed.^ 687. Whether a forfeiture is incurred, by the abandonment of the use specified in a condition, depends upon the terms and general purpose of the condition. If, by a condition that certain buildings or a certain structure shall be permanently located upon the granted land, it is meant simply that this land shall in good faith be selected as the site of such buildings or structure, and that the same shall be erected upon the granted land, the condi- tion is fulfilled by the erection of the buildings or structure upon the land, and the use of it for a time for the jjurpose intended, though the use of it for this purpose is subsequently abandoned.^ A condition in a conveyance to trustees that they shall build thereon a house of worship when they think fit, and permit cer- tain persons to preach in said church, and that they should per- mit the building to be used "for such other purposes as should be deemed appropriate and necessary to further the cause of Christ," is fulfilled by erecting a church within a reasonable time and using the church as long as it is fit for use. The trustees might then sell the land, and invest the proceeds in a parsonage for the same congregation in connection with a new church on a different lot, there being nothing in the deed in the nature of a covenant to rebuild, or words indicating a desire on the part of 1 Henry v. Etowah Co. 77 Ala. 538 ; ner v. Darnell, 128 Ind. 38, 27 N. E. Rep. Poitevent v. Hancock Co 58 Miss. 810. 162 ; Jeffersonville, &c. Tl. Co. v. Barbour, 2 McKelway v. Seymour, 29 N. J. L. 89 Ind. 375; Higbce v. Rodeman, 129 321; Hadley v. Hadley Manuf. Co. 4 Ind. 244, 28 N. E. Rep. 442; Poitevent Gray, 140; Broadway v. State, 8 Blackf. v. Hancock Co. 58 Miss. 810; Miller v. 290 ; McKissick v. Pickle, 16 Pa. St. 140. Tunica Co. 67 Miss. 651, 7 So. Rep. 429 ; •'! Mead v. Ballard, 7 Wall. 290; Berk- Union Canal Co. v. Young, 1 Whart. 410, ley V. Union Pac. Ry. Co. 33 Fed. Rip. 30 Am. Dec. 212; Cushman v. Church, 794; Hunt v. Beeson, 18 Ind. 380; Sum- 14 Pa. Co. Ct. 26. 568 PERFORMANCE. AND FORFEITURE. [§ 688. the grantor that the land should revert upon a failure of the trustees to maintain the church. ^ Wheie land with buildings was conveyed for a nominal sum, in consideration that the grantee, his heirs and assigns, would for twenty years use the same exclusively for hotel purposes, and it was provided that the destruction of the buildings by fire should not in any wise affect or weaken the force of the condition, it was held that, upon the destruction of the buildings by fire within that time, the grantee was bound to rebuild, and that, the grantee having shown no intention to rebuild for a year afterwards, the grantor was entitled to enter for a breach of condition.^ 688. Under a condition in a deed of a meeting-house lot that it should revert unless it should be improved for that purpose, no forfeiture is incurred by allowing the house to get out of repair, and by omitting to hold religious services in it for several vears, if such services were afterwards resumed.'^ A d' ed of land to a church for church purposes contained a condition that if the seats of the church erected on the premises shall be " rented or sold," the land should revert to the grantor. It was held that a sale of the cliurch to an individual under an order of court, for the purpose of paying the debts of the church society, by a deed containing the same condition, was not a breach of the condition. A conveyance of the property was not a renting or sale of the pews within the meaning of the condition, as an interest in a pew was separate from the fee of the land.'^ A deed by way of gift was made to the trustees of a church of a lot of land adjoining the church building, " to be used as a parsonage lot or church purpose and no other, and when not so used to revert back " to the donor. No parsonage was built. The lot remained uninclosed, but was used by persons attending the church services to hitch their horses upon. This was held to be a church purpose, and any cliurch purpose will meet the re- quirement of the gran:.^ And so a conveyance of land to a reli- gious society, '' to hold so long as needed for meeting purposes," 1 Hnrdy v. Wiley, 87 Va. 125, 12 S. E. '' f)sKO()(l v. Abbott, 58 Me. 73. Rep. 2.3.'5. ■* Wood worth v. Payne, 74 N. Y. 196, 2 Allen V. IIowc, 105 Mass. 241. And 30 Am. Kcp. 298. see Eeed v. Hatch, 55 N. H. 327. ^ Bailey v. Wells, 82 Iowa, 131, 47 N. W. Hep. 988. 569 §§ 680, 690.] CONDITIONS PRECEDENT AND SUBSEQUENT. and then to ii'vert, is not broken by the removul of the churcli buikling from the gi'anteil land to an adjacent lot, it' the land is still used and needed for any purposes connected with tlie meet- ings of the society.^ But where a, grant of land was made on condition that it should be held for the sup})ort of any minister who might be set- tled by a certain religious society to preach in a meeting-house standing or to be built on the granted land, and the society after- wards took down the meeting-house and erected a new one on a different site, it was held that after the lot had remained vacant for three ant! a half years there was a breach of the condition, and tliat the breach of the condition was not saved by a vote of the society that the meetii^g-house lot should be reserved for the erection of a meeting-house at some future period when they might deem it expedient.^ A condition that a church building shall be erected upon the land, and thereafter used as a place of worship, is broken by a sale of the property and its conversion to business purposes.^ 689. There is no implication, in a deed of land to a church society of a particular denomination for church purposes, that the use of the land is limited to that particular denomination.* But a deed of land to an individual in trust for the use of the members of the Methodist Episcopal Churcli in a certain town, on condition that in no case is the general conference of that church to have any right in the premises, or take any conti'ol or direction of the same, creates a condition which is violated by a union of this church with an annual conference subordinate to the general conferencH.'^ 690. A condition, that a railroad company shall construct its road or use the granted land for certain purposes within a liniilc'd time, will not be enforced by forfeituie unless there is a clear and absolute breach of the condition. If the condition is indefinite in regard to the use of the land, the court will regard the use and occupation of the land bj' the railroad company for some of the purj)()ses demanded by the terms of the deed, though slight, 1 Carter r. Branson, 79 Ind. 14. ^ Woodworih v. Payne, 74 N. Y. 196, 2 Austin V. CambriiJgcport Parish, 21 30 Am. Pep. 298. Pick. 21.5. 5 Guild V. Richards, 16 Gray, .309. ' Scott V. Stipe, 12 Ind. 74. And see Congregational Society v. Stark, 34 Vt. 243. 570 PERFORMANCE AND FORFEITURE. [§ 691. as a compliance witli the condition. ^ And so, where land was con- veyed to a railroad coiDpany " for the erection and maintenance thereon of freight-houses, . , . side-tracks, tui-nouts, switches, and buildings, and for such other general railroad purposes as may be necessary and expedient," and it appears that a freight- house was built, which was afterwards sold to the grantor, and the land has been continually used for railroad purposes, there was no breach of the condition. ^ Where a conveyance to a railroad company of a right of way through the grantor's land was made in consideration that the company should construct its road upon such land, and on condi- tion that if it did not so construct its road the conveyance should be void, though it did not construct the road through this land for more than thirteen years, but during this time it was con- structing its road over other parts of its chartered route, it was held that the grantor could not declare a forfeiture after the road was completed.^ A conveyance was nuide to a railroad corporation of land " to be used' by it for railroad purposes," upon condition that, "if work is not commenced on said road in two years, then said property is to revert to" the grantor. The name of the grantee was at the time of the delivery of the deed borne by a railway company formed by the consolidation of three different compa- nies, and also that previously borne by one of the companies entering into such consolidation. The line of the consolidated company extended from a point in North Carolina to Atlanta in tlie State of Georgia. It was held that the construction and operating of a portion of its line of railway in the State of North Carolina, within the time specified in the deed, was sufficient to prevent a i-(>version to the grantor."* 691. A condition in a conveyance to a railroad company that the company shall continue to maintain and operate their railroad, and that the grant shall ''cease with the non-use of the same for such purpose," is not a condition that the road shall be built over the entire charter route of the company. No such 1 Chute V. Washburn, 44 Minn. 312, 46 (Ala.) 13 So. Kep. 311. See, also. Knight N. W. Rep. 5.55. v- Alabama Mid. Hy. Co. (A hi.) 13 So. 2 Noves I'. St. Louis, &c. R. Co. (111.) Rep. 200. 21 N. E. Rep. 487. * Lester v. Georgia, &c. Ry. Co. 9P Ga. 3 Yancey v. Savannah & W. R. Co. 802, 17 S. E. Rep. 113. 671 ^ 1)92.] CONDITIONS PRECEDENT AND SUBSK(iUENT. condition is expressotl or implied, but only that the property con- vevod shall be usetl for the construction and operation of the rail- road tluM'con.^ A condition in a conveyance to a railroad company that the land should be used only for a passenger and freight depot is not violated by the company's extending its road beyond the point of its terminus, which, when the deed was given, was upon the granted land, and thereby making it a place of transit and not merely a depot. There was no such restriction within the terms of the deed or in the contemplation of the parties.^ But a condition in a deed to a railroad company that the com- pany will erect a station on the land conveyed, and forever main- tain it as a regular stopping-place for two trains daily in each direction, is not complied with by erecting a station upon other land, distant about a thousand feet from such land, at which many more trains stop.^ Where a conveyance was made to a railroad company in con- sideration that the land should be used for a depot and other railroad purposes, with a condition that if the company should discontinue to use the same for a depot the grantor might resume possession, it was held that the railroad company could not re- move its depot and retain possession of the land for other rail- road purposes.* 692. A condition that the land shall be devoted to the pur- poses of an academy or public school, and that it shall revert when it ceases for two years together to be used for such purposes, does not mean that there shall be a forfeiture when two years have passed without a school, no other use being made of the property. There having been no abandonment of the property for the use prescribed, the mere non-use of it for such time would not defeat the grant.^ And so, where a conveyance of land was made "for the purpose of building a schoolhouse thereon, and to be improved for the benefit of schools, and for no other purpose," with a provision that, if the grantee shall cease for two years in 1 Morrill v. Wabash, vSt. L. & P. Ry. 381. And see Louisville, &c. R. Co. v. Co. 96 Mo. 174,9 S. W. Rep. 6.57. And Covington, 2 Bush, 526. see St. Louis v. Wiggins Ferry Co. 15 ^ Owen.sboro & N. Ry. Co. v. Griffeth Mo. App. 227. (Ky.), 17 S. W. Rep. 277. 2 Southard v. Cent. R. Co. 26 N. J. L. 5 Qage v. School Dist. 64 N. H. 2.32, 9 13. ,\tl. Rep. 387. And sec Rowc v. Minne- 3 Howell V. Long Island R. Co. 37 Hun, apolis, 49 Minn. 148, 51 N. W. Rep. 907. 572 PERFORMANCE AND FORFEITURE. [§ 693. succession to improve tlie land for such purpose, the estate shall be forfeited, and it appeared that a sclioolhouse was built on the land and maintained for many years, when the school was dison- tinued, and no school had been kept there for nearly ten years, when the grantor's heirs brought their writ of entry, but the town had not abandoned the property or used it for any other purpose, it was held that there had been no forfeiture of the estate.^ And so where the condition was that the land should be used as a site for a seminary, and it was so used for several years, and then for several years was not so used, and during this time the acts and declarations of the trustees managing the seminar}^ evinced an intention to abandon the property for seminary pur- poses, but the school was again reopened, it was held that there had been no breach of the condition which worked a forfeiture. In neither of these cases was there a complete abandonment of the property by the grantee.^ A condition that the premises shall be used only for school purposes is not broken by an occasional use of the building for religious or temperance meetings.^ 693. A condition that is personal to the grantee, as where it is in terms confined to him without mentioning his heirs or assigns, must be performed in his lifetime. Upon his death the condition is discharged, and the estate becomes absolute in his heirs or devisees.^ A provision that the grantee is to do the thing, which is the subject of the condition, '^ forever," does not necessarily make the performance of it binding upon his heirs.'' On the other hand, a condition is not personal merely because the grantee bears a personal relation to the grantor, as where the condition is for the support of a parent or othei- near relative, for such a condition may be performed by another, unless tiie per- sonal service of the grantee is expressly stipulated for.*^ A condi- tion for the support of the grantor has, however, sometimes been considered a personal condition.' 1 Cr.ine v. Hviie Park, 1^5 Mnss. 147. " Emerson r. Simpson, 43 N. II. 475, 2 Mills V. Evansvilh- Seminary, ."58 Wis. 82 Am. Dec. lf.8. 13.5, 15 N. W. Rep. 133. See, also, llowc « Wilson r. Wilson, 38 Me. 18, 61 Am. V. Minneapolis, 49 Minn. 148, 51 N. W. Dec. 227; .lo.slyn v. Parlin, 54 Vt. 670; Rep. 907. Ilenry v. Tuppcr, 29 Vt. 358. 3 Broadway v. State, 8 Blackf. 290. " Barker v. Cobb, 36 N. 11. 344 ; Rol- * Emerson v. Simpson, 43 N. II. 475, Hns v. Riley, 44 N. II. 9. 82 Am. Dec. 168 ; Page v. Palmer, 48 N. li. 385. 573 § 694.] CONDITIONS PRECEDENT AND SUBSEQUENT. In a deed of a right of way to a railroad company, a condition tliat the grantor and his family shall have free passage over the road '' so long as the land and appurtenances hereinbefore de- scribed shall be used as a railroad, or for railroad purposes, under the charter of said corporation," was but a limitation of the grant, and did not perpetuate the right to the descendants of the grantor. By the charter of the company the State reserved the riglit at any time within tw^enty years to purchase its property and franchises. " The words ' under the charter of the corporation' were therefore necessary to limit the agreement to carry to the time the corporation might have the power to use the land for railroad purposes. So, too, the words ' used for railroad purposes ' were a necessary and proper limitation of the contract to carry. If the location of the road were changed, and the land conveyed by the grantor should revert to him, the parties would naturally provide that the contract to carry should be at an end. Other contingencies might also happen. The charter of the corporation could be repealed at the pleasure of the legislature ; its franchise might be forfeited for misuser or non-user, or it might be surren- dered. All these considerations show that the words in question were words of limitation, and did not extend the word 'family' so as to include the descendants of the grantor to the remotest generation." ^ 694. But where the condition applies to the property itself, and not in terms to the grantee, the condition is not personal, though it does not include the heirs and assigns of the grantee. Thus in a grant of land a condition inserted, that the property shall not be used for the sale of intoxicating liquors, may be en- forced by forfeiture for a breach of the condition against a subse- quent purchaser of the land, although the condition does not in terms include tlie heirs and assigns of the grantee. The condi- tion applies to the use of the property. It runs with the land.^ And so where the condition was that the land should be used for the purpose of a street only, the condition was held to apply to the purchaser from the grantee.^ 1 Dodjre v. Boston & P. R. Co. 154 r. WetherdI, 14 Kans. 616. And see Mass. 299, 28 N. E. Rep. 243, per La- Hayes v. Waveily & P. R. Co. 51 N. J. throp, J. Eq. 345, 27 Atl. Rep. 648 ; Verplanck v. 2 Odessa Imp. Co. v. Dawson, 5 Tex. Wright, 23 Wend. 50G. Civ. App. 487, 24 S. W. Rep. 576 ; O'Brien ^ Carpenter v. Graber, 66 Tex. 465, 1 r)74 WAIVER OF CONDITIONS. [§§ 695, 696. And so where the condition was to build a church within a reasonable time, it was held thiit the condition was annexed to the estate, and would follow it after the death of the grantee, into the hands of any person to whom it might come.^ A con- dition to "erect upon the said premises a cotton factory within two years " is a condition annexed to the estate conveyed, and not a personal covenant of tlie grantee.^ When the condition applies to the property, and is not per- sonal to the grantee, it may be performed by a subsequent pur- chaser from the grantee, or by any one interested in the land or in the performance of the condition.-^ 695. An easement in fee must strictly be appurtenant to land, and therefore an easement in gross is not strictly an easement in fee. But an easement in gross granted to a city, " its successors and assigns," is capable of assignment, and is in perpetuity, though not technically in fee.* VII. Waiver of Conditions. 696. A condition is released by a conveyance by the grantor of all his interest in the property to the person hold- ing the title.'^ His conveyance of such interest to a stranger also operates to discharge the condition, for such conveyance deprives him of the right to enter for a breach, and it does not pass such right to the stranger, it being merely a right of action which is not assignable.^ Though such conveyance be to a son of the grantor, who upon his father's death becomes his heir, and in the absence of the conveyance would have a right of entry, the S. W. Rep. 178. See, also, Pugh v. Mavs, 2 Langley v. Cliapin, 1.34 Muss. 82. 60 Tex. 191 ; Berryman v. Schumakcr, « I'fople v. Society for I'lopapntion of 67 Tex. 312, .3 S. W. Kep. 46 ; Collins llic (Jospcl, 2 I'ainc, 54.5; LoiiiMille, &c. Manuf. Co. 'v. Marcy, 2.5 Conn. 239, where K Co. v. CoVington, 2 Bush, 526. the condition was enforce.l apainst a ' I'inkum v. Ivni Claire, 81 Wis. 301. lessee of the prantee. althonph the point 51 N. W. Rep. 550; Poull .-. Mockky, 33 was not directly raised in the case. See Wis. 482. Eddv V. Ilinnant, 82 Tex. 354, 18 S. W. ' Hoyt •: Ketcham, 54 Conn. 60. 5 Atl. Rep.' 562, as to liability of the purchaser Rep. 606. And see Cleveland, &c. Ry. of a railroad under a condition in a deed Co. v. Colmrn, 91 Ind. 557. to the original .'ompany to furnish the '■ See S 728; Uice v. Boston & W. R. grantor a free passa^^eover the railroad at Co. 12 Allen, 141 ; Hooper .. Cum.nmgs, ^], ji^gj, 45 Me. 359 ; IVople v. Society for Prop- 1 UpinKton v. Corrigan, 69 IIuu, 320, a-alion of the Go.spel, 2 Paine, 545 ; 23 N. Y. Supp. 451. Tinkl.un .. Krie Ry. Co. 53 Barb. 393. 575 §§ 697, 698.] CONDITIONS PRECEDENT AND SUBSEQUENT. coiulition is extinguislied by the conveyance.^ But where one granted hind upon a condition subsequent, taking back a mort- gage for the purchase-price, his assignment of the mortgage to a stranger in the usual form passed to the assignee oidy the mort- gage title, subject to be defeated by a breach of the condition in the original deed.^ Under a condition that so much of the prem- ises conveyed as should not be used for a purpose specified, a subsequent conveyance to a third person by the grantor of the part not used for such purpose, bounding the land by a line run- ning along certain improvements made by the gi-antee, is an admission by the grantor that the land beyond such line was used or needed for use by the grantee for the purpose specified.^ 697. A condition which is personal to the grantor, or for the benefit of the residue of bis estate, is waived by a convey- ance of such residue to the purchaser of the part to which tlie condition was attached. Thus, where the owner of a tract of land conveyed a small parcel of it with a condition that the grantee should support a fence around the land conveyed, and subsequently conveyed the residue to one who had become the owner of the small parcel, and this owner removed the fence, it was held that his removal of the fence was an extinguishment or waiver of the condition. The residue or part last conveyed was afterwards reconveyed to the original grantor, who entered upon the small parcel, claiming a forfeiture. But it was held that the condition, once having been waived or extinguished, was not re- vived by the reconveyance.'* 698. A third person who is beneficially interested in the condition has no power to waive or release it, if the condition is such that the grantor may be supposed to have an interest in its performance, though such person in whose favor the condition is made is willing to waive its performance.^ Only the grantor, or his heirs having the legal estate, can dispense with such a condi- tion. A grantor, who has conveyed land on condition that he and his wife should be allowed to reside thereon during their respective lives and receive support from the grantee, may waive a 1 Rice V. Boston & \V. R. Co. 12 Allen, * Merrifield r. Cohleigh, 4 Cush. 178. 141. 5 Kowell r. Jewett, 69 Me. 293; Gray 2 Merritt v. Harris, 102 Mass. 326. v. Blanchard, 8 Picii. 284, 292. See, con- ' McKelway v. Sevmour, 29 N. J. L. tra, Jones v. Bramhlet, 2 111. 276 ; Boone 321. V. Tipton, 15 lud. 270. 576 WAIVER OF CONDITIONS. [§§ 699, 700. breach of the condition both as to himself and as to his wife, and his waiver is sufficient without any waiver by his wife, she hav- ing joined in the deed merely to release dower ; i but it has been held that after the death of the grantor his widow may make a valid release to the grantor of such condition.^ 699. A condition may be waived by acts as well as by ex- press release.3 If the grantor permits the property to be used in violation of the condition, and especially if he stands bv and allows valuable improvements to be made thereon, he will not be allowed to insist upon a forfeiture, and thus acquire the improve- ments made upon the strength of his acquiescence.'* Thus, where the condition was tliat no liquor should be sold on the property, but the grantee made such use of the land for eleven years, with the grantor's knowledge and without objection by him, and made improvements adapted to sucli use, equity will not permit a for- feiture of the estate, but will leave the grantor to his other reme- dies.^ Thus, also, where land was granted to a railroad company upon condition that the road should be completed b}^ a certain time, and, after the company's failure to do this, the grantor suf- fered the compau}' to go on and incur furtlier expense in con- sti'ucting the road without making objection, it was held that he bad waived the condition and forfeiture.^ Any acts on the part of the orrantor which are inconsistent with a claim of forfeiture are evidence of his waiver of the condition," 700. A condition for the payment of money at a certain time is waived by the acceptance of the money after a breach.*^ If the condition is one for the payment of money at stated times, and preceding payments have been made without much regard to 1 Hubbard v. Hubbard, 97 Mass. 188, •"' Ludlow v. N. Y. & H. R. Co. 12 Barb. 93 Am. Dec. 75. 440. And see Sharon Iron Co. v. Erie, •^ Tanner v. Van Bibber, 2 Duv. .550. 41 Pa. St. 341 ; Joues i-. Brainbkt, 2 111. 3 Guibl V. Richards, 16 Gray, 309; 276. Sharon Iron Co. v. Erie, 41 Pa. St. 341 ; • Andrews u. Senter, 32 Me. 394; Frost Carbon Block Coal Co. v. Murphy, 101 i-. Butler, 7 Me. 225, 22 Am. Dec. 199; Ind. 115; Barrie v. Smith, 47 Mich. 130, Ilabbard v. Hubbard, 97 Mas.x. 188,93 ION. W. Rep. 168. Am. Dec. 75; Spauldinj,' v. Ilallenbcck, * Barrie v. Smith, 47 Mich. 130, 10 N. 39 Barb. 79. W. Rep. 168; Hammond v. Port Royal ^ Chalker v. Chalkor, 1 Conn. 79, 6 Ry. Co. 15S. C. 10,35; Kennery.Amer- Am. Dec. 206; Dougal v. Fryer, 3 Mo lean Contract Co. 9 Bu-h, 202. 40, 22 Am. Dec. 458. 5 LehiKh Coal Co. v. Early, 162 Pa. St. 338, 29 All. Rep. 736. VOL, I, 677 §§ 701-703.] CONDITIONS PRECKDENT AND SUBSEQUENT. the precise time of their maturity, equity will not allow a for- feiture for a payment not niade on the precise day it was due, but tendered a few days afterwards, when under the circumstances it woultl be gnxssly inequitable to allow a forfeiture.^ 701. A breach of a condition to furnish support to the grantor is waived by his returning to the grantee after an absence and accepting- supj)()rt from him. "The pei'son to whom such support is due always has the right to elect whether he will waive or insist upon a partial or full failure, for a brief time, to perform such a condition, as putting an end to the contract, and his right to support. The failure to perform, which will defeat the vesting of the title, should be a failure in substance, rather than of the letter of the contract. Otherwise, after years of faithful performance, one might lose or be divested of his estate by a technical or partial failure. Where both parties are living on the estate, and in some sense in possession, so that a reentry is not required to terminate the conditional estate, it is more impera- tive that the grantor should by some unmistakable act indicate his intention to put an end to the contract for the vesting of the estate upon a failure to perform the condition. Exacting, or acquiescing thereafter in the performance of the condition is evidence for the jury, from which they would be warranted in inferring and finding that he did not insist upon ending of the contract for such non-performance, but that he still treated it as subsisting." ^ 702. Exacting or acquiescing in the further performance of a condition is a legal waiver of any acts then known to the grantor which otherwise might work a forfeiture. Even treating the condition as still subsisting and obligatory after an alleged breach of it is a sufficient waiver.^ A breach of a condition to support is waived by continuing to accept it for a time after- wards.^ 703. A waiver of a condition, whether precedent or subse- quent, is implied if the grantor prevents its fulfilment, or absolutely refuses performance on his part. But such refusal, to 1 Shade v. Oldroyd, 39 Kans. 313, 18 ^ Hubbard v. Tlnhhard, 97 :\Ta'iR. 1 8S, Pac. l?ep. 198; National Land Co. v. 93 Am. Dec. 7.5. Perrv. 23 Kans. 140. * Hubbard v. Hubbard, 97 Mass. 188. - Norton v. Perkins, 67 Vt. 203. 213, 31 Atl. Rep, 148, per Ross, C. J. 578 WAIVER OF CONDITIONS. [§§ 704, 705. amount to a waiver, must be absolute, and must be acted uj)on as such by the grantee. If the grantor, in a conveyance under which the vesting of "the title is made to depend u|)Oii the grantee's paying a specified sum on or before a day named, notifies the gi-antee that he considers the deed as conferring an option only, and that he withdraws the option, this does not justify the grantee in failing to make or tender payment as provided, if he wishes to assert any right under the deed.^ 704. A waiver of a breach of a condition may be presumed after a reasonable lapse of time has occurred without any assertion of right by the grantor under the condition ; but it is incumbent upon the grantee to allege and prove such a lapse of time.^ Waiver is a question of fact for the jury, and any evi- dence which shows an intention on the part of the grantor to waive his riglit to claim a forfeiture is admissible upon this ques- tion. Whether in any particular case there is a waiver is a nuit- ter of intention on the part of the grantor, to be ascertained from his acts and all the attendant circumstances of the case.^ Where the condition was that the grantee should fence the land and keep the fence in repair, and the land remained unfenced for fifty years, with the grantor's full knowledge of the breacli of the condition, and without any complaint or entry by him, it was held that he had waived the condition.'^ 705. But a mere silent acquiescence in an act which consti- tutes a breach of a condition does not alone amount to a waiver of the right to claim a foift'iture.^ Thus, where tlie condition was that intoxicating liquor should not be sold on tlie 1 Borst V. Simpson, 90 Ala. 373, 7 So. 15 S. C. 10, 3.-) ; riunib v. Tul.bs, 41 N. Y. Rep. 814 ; Brooklyn Life lus. Co. r. Bled- 442, 449 ; Merrifield /■. CoMdgli, 4 Gush, soe, 52 Ala. .WS. I"**- 2 Hooper v. Cummint:s, 45 Me. 3.59; * Hooper >: Cumniiutrs, 45 Me. 359; Andrews ;;. Scnter, 32 Me. 394 ; Willard Scovill v. McMahon, (12 Conn. 378, 26 V. Henry, 2 N. H. 120; Ludlow v. New Atl. Hep. 479. York & II. R. Co. 12 Biirb. 440; Kinney "■' Adams v. Ore Knol) Copper Co. 4 r. Shell.yville (Ky.), 1 S. W. Rep. 472; Huf,rbcs, 589; Gray v. Blanchard. 8 Pick. Kenner v. American Contract Co. 9 Bii.sli, 284 ; Carbon Block Coal Co. v. Murpby, 202; Barrie v. Smith, 47 Mich. 130, 10 101 Ind. 115; Lindsey v. Lindscy, 45 Ind. N. W. Rep. 168 ; Berry man v. Scbnmakcr. 552, 507 ; Rowcll v. Jewett, 69 Me. 293 ; 67 Tex. 312, 3 S. W. Rep. 46; Hnrto v. Frost v. Butler, 7 Me. 225, 22 Am. Dec. Grant (Iowa). 57 N. W. Rep. 809 ; Lehigh 199; Jackson r. Cry.sler, 1 Johns. Cas. Coal & N. Co. V. Earlv, 34 W. N. Cas. 125; Ho.se v. Hawlcy, 118 N. Y. 502. 23 501, 29 Atl. Rep. 736. " N- 1'- liep. 904; Clark ,;. Martin, 49 Pa. 8 Hammond v. Port Royal, &c. Ry. Co. St. 289. 579 § 70C).] CONDITIONS PKECKDENT AND SUBSEQUKNT. preniidos, tlie mere sale of a glass of liquor to a third person in the presence of the grantor does not necessarily constitute a breach of the condition. The bodily presence of the grantor mi'T'ht under some circumstances be evidence of his assent to the sale, and under other eircunistanees it would not. At most it wonld be evidence to be submitted to the jury on the question of Ins assent.^ An unauthorized sale by a third person, without the knowledge or fault of the grantee, would not work a forfeiture.- But open and public sales on the premises by the grantee's ten- ant, with the assent or with the knowledge of the grantee, and without reasonable diligence on his part to prevent it, will work a forfeiture.^ If the grantee, as soon as he discovers that his tenant is selling spirituous liquors on the premises, procures his removal, he will save a forfeiture. It is not negligence on his part to make a lease without a condition that it should be void in case the lessee should sell intoxicating liquor, especially if the lease contains an agreement on the part of the lessee that he would not sell any article the sale of which would injure the grantee's title.^ But if the grantor stands by and allows the grantee to incur expense and make improvements with a view to conducting a business or doing acts which are a breach of the condition, the grantor's inaction may have the effect of a waiver of the condi- tion.^ 706. Where a condition is altered by a verbal agreement, but the grantee fails to perform the condition, either as originally expressed or as altered, the grantor is not precluded from claim- ing a forfeiture, as his consent to the change was conditional upon a compliance with the altered condition. The parol agreement for a change in the condition was not obligatoi-y ; but the grantor would be estopped to insist upon a forfeiture for a breach of a condition he had agreed to dispense with. His agreement, how- ever, for a change of the condition, is not inconsistent with his 1 Plumb V. Tubba, 41 N. Y. 442, 449. ^ Hooper v. Cummings, 45 Me. S.'Sg ; - Collins Manuf. Co. v. Marcy, 25 Barrie v. Smith, 47 Mich. 130, 10 N. W. Conn. 242. Rep. 168; Kenncr );. American Contract 3 Collins Manuf. Co. ?•. Marcy, 25 Conn. Co. 9 Bush, 202; Ludlow ?;. New York, 242; Lehigh Coal & N. Co. v. Karly, 162 &c. R Co. 12 Biirh. 440; Lehigh Coal & Pa. St. 3.38. N. Co. V. Early, 162 Pa. St. 338. ■* Collins Manuf. Co. v. Marcy, 25 Conn. 242. 580 REENTRY FOR FORFEITURE. [^§ 707, 708. right to insist upon a forfeiture when the grantee failed to com- ply with the condition in either form. Whether there was a waiver is a question of intention, and it was clear that the grantee did not intend to waive the original condition, except in case he should comply with the changed condition.^ But where a city made a deed to a corporation for a nominal consideration upon condition that the corporation should do tw^o things, one of which it performed but failed to perform the other, the city agreed that the corporation might do something else instead, and extended the time for performance. Upon its failure to perfoi'm the substituted service, the city brought ejectment. It was held that the city could not recover, because the original condition had been waived and was gone forever, as a condition, and as if it had never been made a part of the deed.^ 707. A condition once waived is wholly gone. The estate becomes absolute in the grantee, and cannot be divested by any future breach.^ A release of condition in part may operate as a waiver in whole.* But such a release does not have this effect in equity, where a specific performance of the unreleased part of the condition is sought.'^ But the waiver of one breach of a continuing condition, such as a condition for the payment of rent, or for making repairs, does not destroy the condition, but it may be enforced for a subse- quent breach.^ VIII. Reentry for Forfeiture. 708. The title to land conveyed upon a condition subse- quent vests in the grantee, and his failure to perform tlu- condi- tion does not divest the title. The title is divested only upon tlie entry of the grantor or his heirs for tlu- condition broken, or by a suit for the recovery of possession, or other act equivalent to an 1 Ragsdale v. Vicksbiirg & M. K. Co. 47 Mich. 130, 10 N. W. Rep. 168; Ham- go Miss. 480. monrl v Port Royal Ry. Co. 15 S. C. 10, - Sliaron lion Co. v. Eric, +1 Pa. St. .35; Sharon Iron Co. r. Erie. 41 Pa. St. 341. .341 ; Dickey i;. M'Cullough, 2 Watts & ■' Dunipor's Ca-sc, 4 Coke Rep. 119, 1 S. 88. Smith's Lead. Cas. 9.5; GuiM r. Rich- < Dakin c Williams. 17 Wcml.447. arcls, 16 Gray, .309 ; Rice v. Poston & W. ^ Clark v. Martin, 49 Pa. St. 289. R. Co. 12 Allen, 141 ; Merrifiehl r. Cob- •"' I)iim|)or'.s Case, 1 Smith's Lead. Cas. lei^'h, 4 Cu.sh. 178; Wiliiams v. Dakin. 95, 98, note ; McKildoe v. Darracott, 13 22 Wend. 201 ; Ludlow v. New York & Gratt. 278. H. R. Co. 12 Barb. 440; Barrie v. Smith, 581 § 708.] CONDI I IONS I'RECKDKNT AND SUBSEQUENT. tMitiy. TIk' possibility of voverter merely is not an estate in laiul, tuul until the contingency of the condition happens the whole title is in the grantee, and the grantor has nothing he can convey.^ Non-performance of the condition, or a breacli of it, does not of itself determine the grantee's estate, though it is provided that upon breach the estate shall be void, or shall revert to the o-rantor.2 1 Ruch V. Rock Inland, 97 U. S. 693 ; Davis V. Gray, 16 Wall. 203; Schulen- berg V. Haniinaii, 21 Wall. 44. Arkan- sas : Worthen i\ Ratcliffe, 42 Ark. 330 ; Skipwith 1-. Martin, r^0 Ark. 141, 6 S. W. Rep. 514. California: Where a grant i.s inaiie upon condition subsequent, aud i.s subsequently defeated by the non-perform- ance of the condition, the person other- wise entitled to hold under the grant must reconvey the property to the grantor or his successors, by grant duly acknow- ledged, for record. Civ. Code, § 1109. Colorado: Denver, &c. Ry. Co. v. School Dist. 14 Colo. 327, 23 Pac. Rep. 978. Georgia : Norris v. Milner, 20 Ga. 563 ; Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 682. Upon breach of condition sub- sequent, working a forfeiture, the person to whom the estate is limited may enter immediately. Code 1882, § 2299. Idaho: Same statutory provision as in California. R. S. 1887, § 2931. Indiana: Cory v. Cory, 86 Ind. 567, 573 ; Elkhart Car Works V. Ellis, 113 Ind. 215, 15 N. E. Rep. 249; Lindsey v. Lindsey, 45 Ind. 552; Throp v. Johnson, 3 Ind. 343; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 63S ; Cross v. Carson, 8 Blackf. 138, 44 Am. Dec. 742. Kentucky : Rick- etts V. Louisville, &c. Ry. Co. 91 Ky. 221, 15 S. W. Rep. 182; Myers v. Daviess, 10 B. Mou. 394 ; Kenner v. American Con- tract Co. 9 Bush, 202. Maine: O.sgood v. Abbott, 58 Me. 73 ; Tallman v. Snow, 35 Me. 342 ; Chapman v. Pingree, 67 Me. 198. Massachusetts: Guild v. Richards, 16 Gray, 300; Hubbard v. Hubbard, 97 Mass. 188, 93 Am. Dec. 75; Shattuck v. 582 Hastings, 99 Mass. 23. Michigan : Hay- ward V. Kinney, 84 Mich. 591, 599, 48 X. W. Rep. 170. Minnesota: Chute v. Washburn, 44 Minn. 312, 46 N. W. Rep. 555. Mississippi : Memphis, &c. R. Co. V. Neighbors, 51 Miss. 412. Missouri: Adams v. Liudell, 5 Mo. App. 197; O'Brien v. Wagner, 94 Mo. 93, 7 S. W. Rep. 19. Nevada: Hamilton v. Kneeland, 1 Nev. 40. New Hampshire : Coon v. Brickett, 2 N. H. 163; Barker v. Cobb, 36 N. H. 344. New Jersey: State i;. Brown, 27 N. J. L. 13 ; New Jersey Zinc & Iron Co. V. Morris Canal, &c. Co. 44 N. J. Eq. 398, 15 Atl. Rep. 227. New York : Vail v. Long Island R. Co. 106 N. Y. 283, 12 N. E. Rep. 607 ; Duryee r. New York, 96 N. Y. 477 ; NicoU v. New York & E. R. Co. 12 N. Y. 121 ; Under- bill V. Saratoga R. Co. 20 Barb. 455; Ludlow V. New York, &c. R. Co. 12 Barb. 440; Fonda v. Sage, 46 Barb. 109. North Carolina: Phelps v. Chesson, 12 Ired. 1 94. Oklahoma : Same provision as in California. G. S. 1893, ch. 82, § 10. Texas : Berryman v. Schumaker, 67 Tex. 312, 3 S. W. Rep. 46; Gulf, &c. R. Co. V. Dunman, 74 Tex. 205, 11 S. W. Rep. 1094. 2 Adams v. Ore Knob Copper Co. 4 Hughes, 589 ; Osgood v. Abbott, 58 Me. 73; Adams v. Liudell, 5 Mo. App. 197 ; Towie V. Smith, 2 Rob. (N. Y.) 489 ; Stuy- vesant r. Davis, 9 Pai: Grnnt, 3 ^ Brattle Square Church r. Grant, .3 Cray, 142. 63 Am. Dec. 72.5, i)er Bigc- Oray, 142, 63 Am. Dec. 725, per Biuc- i„w,'.'r. i"w, J. - Tobpy r. Moore, 130 Mn.ss. 448 ; French i\ Old South Soc. 106 Mass. 479. 585 § 715.] CONDITIONS TKECEDENT AND SUBSEQUENT. The rig'lit or possibility of reverter upon the determination of a qualilied fee is governed by the same rule in regard to remote- ness as the right of revertei- upon a condition subsequent, and is not void on that account.^ Whether estates upon condition are subject to the rule against perpetuities, so that if the condition is perpetual and the condi- tional estate may not arise or vest until after the period limited by that rule, it is void, or whether it woidd then vest in the grantor, his heir or devisee, is a question which must be consid- ered as unsettled.^ 715. The common-law remedy for enforcing the forfeiture of a condition is an entry. Actual entry, or, if that was impos- sible, a claim, was the original mode of enforcing forfeiture. " Regularly, when any man will take advantage of a condition, if he may enter he must enter, and when he cannot enter he must make a claim ; and the reason is, for that a freehold and inherit- ance shall not cease without entry or claim." ^ The claim applied to things that did not lie in livery, and of which there could be no possession, such as a reversion or remainder. The bringing of an action of disseisin was not a claim within the meaning of tlu^ law, nor a substitute for an actual entry. Claim was what was in the books called " continued claim." '^ As by the old common law a freehold could be created only by the ceremony of livery of seisin, the corresponding ceremony of reentry was necessary in order to determine it, or, as Coke has it, " an estate of freehold cannot begin nor end without ceremony." ^ But no actual entry w^as required upon the breach of a condition subsequent in an estate for years or an incorporeal hereditament, for such an estate was not created by a livery of seisin.*^ The grantor parted with ' Fiirit Uuivcrsali-st Soc v. BulanU, 3 ^q, LJtt 2I8 « ; Shep. Touch. 153. lo'i Mass. 171, 29 N. E. IJep. 524, Allen, * It is explained by Littleton, § 414. J., saying : "The very many cases cited ° Co. Litt. 214 /;. But a lease for years in Gray, Prop. §§ 305-312, show conclu- mij,fht bej;in without ceremony, and so sively that the f,fencrnl understanding:; of might end without ceremony. A condi- courts and of the jirofession iu Atnerica tioii annexed to a lease for years did not has beeu thai the rule as to remoteness therefore require an actual entry to en- does not apply, though tiie learned author force it, unless an entry is stipulated, thinks this view erroneous in principle." Ejectment may be maintained without an 2 1 Am. Law Kev. 265, article by F. C. actual entry. Liddy v. Kennedy, L. R. 5 Loring, Esc\.; Brattle Square Church v. H. L. 134. Grant, 3 Gray, 142, 63 Am. Dec. 725, a " 4 Kent, 128; Kenner v. American case of conditional limitation. Contract Co. 9 Bush, 202. 586 REENTRY FOR FOKFEITURE. [§ 716. liis seisin when he made his conveyanL-e upon condition, and ho could regain this only by a reentry. No action for the lecoverv of the land could be brought by the grantor until he had made entry upon the land after condition broken, or made claim if entry was impossible. This was the early rule in some of the States,! and in North Carolina and South Carolina it remains the rule to the present time.^ If several detached parcels of land are conveyed by the same deed, and are subject to the same condition, an entry upon one lot in the name of all the lots situated in the same county is sufficient.-^ 716. An entry to enforce a forfeiture must be made for the purpose of taking advantage of the breach of condition. If it is made for some other purpose, it is not effective to divest the grantee of his estate by reason of his breach of the condition, and does not lay the foundation for a recovery in ejectment by the grantor.^ The entry, moreover, in the language of the Touch- stone,^ should be "an open and notorious act, equivalent to inves- titui'e of land by livery of seisin, that notoriety might be given to the change of title." It is not necessary, however, that the 1 Chalker v. Chalker, 1 Conn. 79, 6 Am. Dec. 206 ; Bowen v. Bowen, 18 Conn. 535 ; Wnrner v. Bennett, 31 Conn. 468, 478 ; Kenner v. American Contract Co. 9 Bush, 202; Willard v. Henry, 2 N. H. 120; Spear v. Fuller, 8 N. H. 174, 28 Am. Dec. 391 ; Jewett v. Berry, 20 N. H. 36 ; Kollins v. Riley, 44 N. H. 9 ; Tallman V. Snow, 3.') Me. 342 ; Frost v. Butler, 7 Me. 225, 22 Am. Dec. 199; Marwick r. Andrews, 25 Me. 525 ; Bangor ik Warren, 34 Me. 324, 56 Am. Dec. 657 ; Osgood v. Abbott, 58 Me. 73 ; Throp v. Johnson, 3 Ind. 343; Boone v. Tipton, 15 Ind. 270; Voris t\ Kcnshaw, 49 III. 425 ; Board of Ednention v. Trii.'^tces, 63 111. 204 ; Phelps V. Chesson, 12 Ircd. 194 ; Hammond r. Port Royal, &c. R. Co. 15 S. (;. 10; Mcmi)iii.s, &c. C. R. Co. V. Ncislihors, 51 Miss. 412. In Massachusetts an entry was necessary before the Revised Statutes of 1836, which provided that the demandant in a real action shall not be required to prove an actual entry, and that ])roof of the; right to enter shall he deemed sufficient proof of seisin. This applies to an action founded on a breach of condition. Austin V. Canibridgeport Parisli, 21 I'iik. 215. See Stearns v. Harris, 8 Allen, 597. It has been suggested, however, that Stone V. Ellis, 9 Cush. 95 ; Sanborn i\ Wood- man, 5 Cush. 36, and Attorney-General v. Merrimack Manuf. Co. 14 Cray, 586, 612, are inconsistent. 1 Am. Law Hev. 265, 269; article by F. ( '. Loriiii:, Esq. Hubbard v. Ihibbani, 97 Mass. 188, de- cides that an action is ciiiiivalcnt to an entry. 2 Adams v. Ore Knub Ci!p])cr Co. 4 Hnirhes, 589, 593; Hammond r. Port Royal \\y. Co. 15 S. C. 10. •' Litt. § 417; Cn. Litt. 252/. ; Creen ('. Pettingill, 47 N. H. 375, 93 Am. Dec. 444. ' Bowen r. Bowen, 18 Conn. 535 ; Stono V. Ellis, 9 Cush. 95. 5 Shep. Touch. 153. 587 717, 718.] CONDITIONS I'KKCKDKN r AND SUBSEQUENT. party outcriny,- should declare at the time for what purpose he enters. 'IMu' act speaks for itself.^ The reentry must he made after a breach of the condition; if made before a breach it may excuse the breach, because it may render performance impossible.- It must be made upon the land of wliicli forfeiture is claimed.''^ 717. It would seem that the ceremony of reentry for the breach of a condition ought to be dispensed with, inasmuch as under the Statute of Uses the ceremony of livery of seisin is dispensed with in the creation of freehold estates. Accordingly, at the present day, this ceremony is not generally necessary be- fore the prosecution of an action for the recovery of possession. " Whatever necessity there may have anciently been for such a proceeding, the reason for it ceased with the disappearance of the fictions and devices resorted to, upon which to found the action of ejectment." * 718. It is a general rule that a writ of ejectment, a writ of entry, or a suit for the possession of the land, is equivalent to a reentry.^ So any act equivalent to an entry by the grantor 1 Jones V. Williams, 5 B. & Ad. 783, per Lord Deuiiian; Bowen v. Boweu, 18 Conn. 53.5; Diiyan v. Thomas, 79 Me. 221, 9 Atl. Rep. 354. 2 Elkhart Car Works Co. v. Ellis, 113 Ind. 215, 15 N. E. Rep. 249. 3 Missouri Hist. Soc. v. Academy of Sciences, 94 Mo. 459, 8 S. W. Rep. 346. * Sioux City & St. P. R. Co. v. Singer, 49 Minn. 301, 307, 51 N. W. Rep. 905, per Dickinson, .1. ; Clark v. Ilolton, 57 Ind. 504 ; Hamilton v. Kneeland, 1 Nov. 40 ; Ritchie v. Kansas, &c. Ry. Co. (Kans.) 39 Pac. Rep. 718. * Goodriglit V. Cator, Doug. 485, per Lord Mansfield ; Ruch r. Rock Island, 97 U. S. 693. Colorado : Cowell v. Springs Co. 3 Colo. 82, 100 V. S. 55. Illinois: Boone r. Clark, 129 III. 466, 498,21 N. E. Rep. 850. Indiana: Richter v. Richter, 111 Ind. 456, 12 N. E. Rep. 698; Indian- apolis, &c. Ry. Co. V. Hood, 66 Ind. 580; Wilson W.Wilson, 86 Ind. 472 ; Cleveland, &«.Ry. Co. V. Coburn, 91 Ind. 557 ; Clark r. Tlolfon, 57 Ind. 564; Scott v. Stipe, 12 Ind. 74 Kansas: Ritchie v. Kansas, &c. 588 Ry. Co. (Kans.) 39 Pac. Rep. 718 ; O'Brien V. Wetherell, 14 Kans. 616. Kentucky: Louisville & Nashville R. Co. u. Covington, 2 Bush, 526 ; Owensboro & N. Ry. Co. v. Griffeth (Ky.), 17 S. W. Rep. 277. Massa- chusetts: K. S. 1836, ch. 101, §§ 4, 8; Aus- tin V. Caml>rid;;eport Parish, 21 Pick. 215; Hubhard v. Hubbard, 97 Ma.ss. 188, 93 Am. Dec. 75. Minnesota : Sioux City & St. P. R. Co. V. Singer, 49 Minn. 301, 51 N. W. Rep. 905. Missouri : Clarke v. Biooklield, 81 Mo. 503, 51 Am. Rep. 243; (TBricn v. Wagner, 94 Mo. 93, 7 S. W. Rep. 19; Ellis v. Kyger, 90 Mo. 606; Missouri Ilist. Soc. v. Academy, 94 Mo. 459, 8 S. W. Rep. 346 ; Towne v. Bowers, 81 Mo. 491 ; Weinreich v. Weinreich, 18 Mo. App. 364. New Jersey : Cornelius V. Ivins, 26 N. J. L. 376. New York : Jackson v. Cryslcr, 1 Johns. Cas. 125; Plumb V. Tubbs, 41 N. Y. 442, 450 ; IIos- ford I'. Ballard, 39 N. Y. 147 ; Palmer v. Plank Road Co. 11 N. Y. 376; Cruger V. McLaury, 41 N. Y. 219; Upington r. Corrigan, 69 Hun, 320, 23 N. Y. Supp. 451. Oregon : Coffin v. Portland, 16 Oreg, REENTRY FOR FORFEITURE. [§§ 719, 720. showing u purpose to take advantage of the breach of condition subsequent, and to reclaim the estate forfeited by such, is all that is required. The trustees of a railroad company had conveyed the road to a construction company upon condition that the road should be completed within a certain time, and upon failure of the construction company to fulfil the condition, the trustees entered into a contract with a railway company already in possession of the property, reciting the condition and declaring a forfeiture under it. It was held that, the trustees having elected to treat the property as reverted to them, and their action being equiva- lent, without judicial proceedings, to a reentry, the interest of the construction company in the property was divested at the expiration of the time limited for performance of the condi- tions, and the property could not be subjected, by a suit brought after that time, to a judgment against the construction company recovered by complainants on the contract for the rails. ^ 719. Where a corporation holding land upon a condition subsequent is dissolved for acts or omissions which are also breaches of the condition, the title reverts to the original grantor without any entry by him or other act equivalent thereto. The dissolution of the corporation by judicial decree supersedes the necessity of a reentry .^ 720. The action of ejectment to enforce a forfeiture of a condition may be maintained against subsequent purchasers from the original grantee upon condition. "- It cannot be urged that it is even a liard case against such defendant, for he pur- chased with full knowledge of the condition ; or, if not, it be- hooved him to inquire and examine the title before lie pur- cliased." ^ 77, 17 Par. Kep. 580 ; Kalev v. Umatilla (M.io K. Co. 37 W. Va. 349, If. S. K. Rep. Co. 15 Orej,'. 172, 13 Phc. Rep. 890. 589,590. At) action of unlawful entry Pennsylvania": Bear v. Wlii.slcr, 7 Watts, and detainer is not .sullieient. Bowker 144; Cook V. Trimble, 9 Watts, 15; r. Seymour, 13 W. Va. 12. Wisconsin: Sheafer r. Sheafer, 37 Pa. St. .525 ; Brown I'epin Co. r. IVindle, 61 W>.s. 301 21 r. Bennett. 75 Pa. St. 420; Sharon Iron N. W. Rep. 2:54 ; llurner r. Railway Co. Co V Erie 41 Pa. St. 341. South Caro 38 Wis. 1C5. Una: Rn^e v. Ellis, 1 Bay, 107, 111. ' Schlesinfrcr r. Kansas City, &c. R. Co. Texas : Jefferv v. Graham, 61 Tex. 481 ; 152 U. S. 444, 14 Sup. Ct. Rep. 647. Gulf, &c. Ry.' Co. V. Dunman, 74 Tex. ■= Mott r. Danville Semi.iary, 129 111. 265 11 S. W. Rep. 1094. West Virginia : 403, 21 N. E. Rep. 927. Bv statute, ejectn.ent serves in lieu of re- " Jackson v. Topping, 1 Wend. 388, 19 -ntrv Code ch 93 § 16; Martin v. Am. Dec. 515 ; Martin v. Ohio R. Co. o7 589 §§ 721-723.] CONDITIONS PRECEDENT AND SUBSEQUENT. 721. The parties themselves may by a stipulation in the deed provide what shall constitute a reentry t'oi' a foifi-ituie, or what shall be the evidence ol" such i-eentry. Thus they may stipulato that the grantor shall post a notice of reentry upon tlie land, and that witliin a specified time thereafter the land shall be considered as revested in the grantor, and such act will constitute a reijntry, and after the expiration of such time will defeat the purchaser's title. ^ 722. If the grantor is himself in possession when the con- dition is broken, the estate revests in him at once, and his pos- session is presumed to be for the purpose of holding under the forfeiture.^ If he is already in possession, it is, however, in some cases declared that the grantor must manifest an intention ol holding by reason of the breach of condition ; ^ and facts show- ing that the grantee in possession, after breach of the condition, exercised acts of ownership, or that the grantor residing witli ilie grantee acknowled":ed the title of the latter and disclaimed any title in himself, are admissible in evidence to show that the grantor was not in possession for a forfeiture.* He may there- after maintain an action to quiet the title, but to do this he must allege a breach of the condition, and a reentry because of such breach. Such an action could not be sustained upon an allegation of a reentry before breach.'^ 723. Only the grantor or his heirs can enforce a condition. He or they alone can enter for a breach of the condition. A condition and a right of reentry for a forfeiture cannot be re- served to a stranger. " No entry nor reentry (which is all one) may be reserved or given to any person, but only to the feoffor, or to the donor, or to the lessor, or to their heirs, and such reentry W. Va. 349, 16 vS. E. Rep. .589; Guffy S. W. Rep. 10: Hamilton r. Elliott. .5 V. Hukill,34 W. Va. 49, 11 S. E. Rep. S. & R. 375: T;ivlor »;. Cedar Rai)ifls & 754. St. P. R. Co. 2.5 Iowa, 371. 1 Swell V. Oliver, 61 Ga. 248. •' Willarrl v. Henry, 2 N. H. 120; Hub- 2 Adiims V. Ore Knob Copper Co. 4 liard i: Hubbard, 97 I\Tass. 188 93 Am. Hughes, 589 ; Willard v. Henry. 2 N. H. Dec. 75. And see Lincoln & K. Rank v. 120; Rollins v. Riley, 44 N. H. 9 ; An- Drummond, 5 Mass. 321. drews i-. Senter, 32 Me. 394 ; Frost v. * Drew v. Baldwin, 48 Wis. 529, 4 Butler, 7 Me. 225, 22 Am. Dec. 199 ; Rich- N. W. Rep. 576. ter V. Richter, 111 Ind. 456, 12 N. E. Rep. ^ Elkhart Car Co. v. Ellis, 113lnd.215, 698; Clark V. Ilolton, 57 Ind. 564; Thomp- 15 N. E. Rep. 249; Riehter v. Richter, Bon V. Thomp.son, 9 Ind. 323, 68 Am. Dec. 1 1 1 In'd. 456, 12 N. E. Rep. 698. 638; O'Brien i-. Wapner, 94 Mo. 93, 7 590 REENTRY FOR FORFEITURE. [§ 723. cannot be given to any other person." ^ A condition expressly made in favor of a stranger to the deed is void.^ But it is no objection to a condition that the benefit of it is in favor of a stranger, the condition itself being in favor of the grantor.^ A condition in express terms, that the grantee shall not build upon a certain part of the land conveyed, cannot be enforced by the owner of the adjacent property who derived his title from the same grantor. The grantor or his heirs must enforce the condition.'* 1 Littleton, § 347 ; Co. Litt. § 214 a ; Shep. Touch. 127. " And therefore, if an estate be made upon condition that upon such a contingent a stranger shall enter, or the estate shall cease, and another shall have it ; however this may be so drawn as it maj be a good condition to give him, his heirs, etc., that doth make the estate, an entiy, yet it cannot be good to give the estate, or the entry, to a stran- ger." Mr. Justice Field, in Schulenberg r. Harriman, 21 Wall. 44, 63, said : "It is settled law that no one can take advan- tage of the non-peiformance of a condi- tion subsequent, annexed to an estate in fee, but the grantor or his heirs, or the successors of the grantor if tlie grant pro- ceed from an ariificial person ; and if they do not s;'e tit ti> a.ssert their right to enforce a forfeiture on that ground, the title remains unimpaired in the grantee. The authorities on this point, with hardly an exception, are all one way, from the Year Books down. And the same doc- trine obtains where the grant upon con- dition proceeds from the government; no individual can assail the title it has con veyed on the ground that the grantee has failed to perform the conditions annexed." Ruch i;. Rock Island, 97 U. S. 693 ; Schu- lenberg j;. Ilarriman, 21 Wall. 44 ; I'co- ple V. Society for Propagation of tlie fios- pel, 2 Paine, .545. California: Sniitli /•. Brannan, 13 Cal. 107 ; iJncUclew »•. Psicll, 5 Cal. 108. Georgia : Norris »-. Milncr, 20 Ga. .563. Illinois : Board of Educnfiim r. Trustees, 63 111. 204 ; Neimeycr r. Kni;:ht, 98 111. 222; Boone r. Clark, 129 III. 406. 21 N. E. Rep. 8.50. Indiana: Cross v. Carson, 8 Blackf. 138, 44 Am. Dec. 742 ; Copeland v. Copeland, 89 Ind. 29 ; Thomp- son V. Thompson, 9 Ind. 323,68 Am. Dec. 638 ; Higbee u. Rodeman, 129 Ind. 244.28 N. E. Rep. 442. Arkansas : jMartin v. Skip- wirth, .50 Kans. 141, 6 S. W. Rep. 514. Kansas: Piper v. Union Pac. Ry. Co. 14 Kans. 568 ; McElroy v. Morley, 40 Kans. 76, 19 Pac. Rep. 341. Kentucky : Owsley '■. Owsley, 78 Ky. 257. Maine : Hoopers. Cunmiings, 45 Me. 359 ; Bangor v. War- ren, 34 Me. 324, 56 Am. Dec. 657. Mary- land : Dolan V. Baltimore, 4 Gill, 394. Massachusetts: Guild i*. Richards, 16 Gray, .'iOg, 317; Parker ?•. Nichols, 7 Pick. Ill ; King's Chapel v. Pelham, 9 Mass. 501. Michigan: Hayward y. Kinney, 84 Mich. 591, 48 N. W. Rep. 170. Missis- sippi : Winn r. Cole, Walk. 119. Mis- souri : Towne v. Bowers, 81 Mo. 491 ; Jones ;;. St. Louis, &c. Ry. Co. 79 Mo. 92. New Hampshire : Dewej' r. Willinnis, 40 N. H. 222, 77 Am. Dec. 708. New York : Van Rensselaer y. Ball, 19 N. Y. KiO; Fonda v. Sage, 46 Barb. 109; Underbill V. Saratoga, &c. H. Co. 20 Barb. 4.55; Post !'. Weil, 8 Iliin, 418; NicoU v. New Yo:k, &c. R. Co. 12 N. Y. 121, 12 Barb. 460. New Jersey : Southard v. Central R. Co. 26 N. J. L. 13. Pennsylvania: Cu-bman v. Church, 14 Pa Co. Ct. 26. 2 r,.,ijr r. Wells, 11 N. Y. 315; Nicholl V. New York & E. R. Co. 12 N. Y. 121 ; Liitlefi.ld '•. Mott, 14 H. I. 288; Gray V. Blanch ird, 8 Pick. 2S4. To contrary, see M.Ki-ick r Pickle, 16 Pa. St. 140; Hamilton v. Kneebind, 1 Nev. 40. 3 Gibert v. Pctcler, 38 N. Y. 165. * McElroy i-. Morley, 40 Kans. 76, 19 Pac. Rep. 341. 591 §;^ 7-4, 7-5.] coxDiTioNS i'hecedent axd subsequent. Where a liusbaiul and wife joined in a conveyance of land of which the husband was seised in fee, on condition tliat the grantee sliould support eacli of them for life, and the i^iantors were after- wards divorced, it was held that the husband only could enforce the condition. The wife's inchoate and contino-ent interest in the land did not entitle her to claim a forfeiture.^ A condition in a deed conveying land to one for life, with re- mainder to his heirs, prohibiting a conveyance of the land during the lifetime of the tenant for life, can be enforced only by the grantor and his heirs ; and hence strangers in possession of the land cannot resist the foreclosure of a morti^aofe executed bv the life tenant on the ground that it violated the condition in the d^e<1.2 724. The grantor's heirs, though not mentioned in the deed, may take advantage of a breach of condition by entry after the grantor's death ; and it does not matter that no estate descended to the heirs from the grantor."^ When the deed is by a corporation, its successor may take ad- vantage of a forfeiture.^ 725. The State must enforce a condition by proceedings equivalent to an inquest of oflQce. At common law, in a grant by the crown, as the sovei-eign could not make an entry for a breach of condition in person, it was necessary to assert the right by an inquest of ofl&ce, or office-found.^ But now the state or government may provide by legislation the mode of asserting this right. Mr. Justice Field, in a case before the Supreme Court of the United States, said : ^ "If the grant be a public one it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, finding the fact of forfeiture and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of owner- ship of the property for breach of the condition, such as an act directing the possession and appropriation of tlie property', or that 1 Copeland V. Copeland, 89 Ind. 29. + Cross v. Ci)r.«on, 8 Blackf. 138, 44 2 Hay ward w. Kinney, 84 Mich. 591, 48 Am. Dec. 742; Southard i'. Central R. N. W. Rep. 170. Co. 26 N. J. L. 13, 21. ^ Shep. Touch. ; Osgood r. Abbott, ^ People v. Brown, 1 Caines, 416. 58 Me. 73; Thomas (•. Record, 47 Me. ^ Schulenberg v. Harriman, 21 WalL 500, 74 Am. Dec. .lOO ; Jackson r. Top- 44, 63. ping, 1 Wend. 388, 19 Am. Die. 515; Warner v. Bennett, 31 Conn. 468. 692 REENTRY FOR FORFEITURE. [§§ 726-728. it be offered for sale or settlement. At common law the sovereign could not make an entry in person, and therefore an office-found was necessary to determinethe estate: but, as said by this court in a late case,i ' the mode of asserting or of resuming the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly under the authority of the government without these preliminary proceedings.' " So, also, any public assertion by legislative act of the ownership of the estate after default of the grantee — such as an act resuming control and appropriating the property to particular uses, or granting it to others to carry out the original object — will revest the property in the state.^ 726. If the condition be for the payment of money to a third person, Avhile at common law this does not create a privity between the grantee and such third person, yet there is a tend- ency in modern adjudications to treat such a condition as rais- ing a trust in favor of the beneficiary, which he may enforce. ^ 727. It is a settled common-la-w principle that a condition can be reserved only to the grantor and his heirs, and not to a stranger, and the reason of the rule is that the (>state is not de- feated, though the condition be broken, until entry by the grantor or his heirs, and until such entry there is nothing to assign save a mere right of entry, which at common law is not assignable.'* But this rule does not apply to a subsequent purchaser in fee of land burdened with an easement granted upon condition. Such purchaser may enforce the performance of the condition upon which his grantor had conveyed to another an easement in the Innd.^ 728. The right to enforce a condition does not pass by a deed of the reversion, or by conveyance of the land which is subject to the condition. After such a conveyance there is no 1 United States i;. Repentigny, 5 Wall. Jcwett, 40 N. II. .WO ; Sherman i: Dodgo, 211,268. 28 Vt. 26; HojiCiH v. (iosnell, f)! Mo. 2 Farrisworth v. Minn. & P. R. Co. 92 466; Kaljilisnyder r. KaliilisnjdiT.s, 17 U. R. 49,66; New Orleans Pac. R. Co. W. Va. 28; OwhIcv v. Owsley, 78 Ky. V. United States, 124 U. S. 124, 130, 8 257. Conlni, Kclhim /•. Kcllani, 2 I'at. Sup. Ct. Rep. 417 ; SchlesinTer v. Kansas & II. 357. City, &c. R. Co. 152 U. S. 444, 453, 14 ^ Nicoll u. N. Y. & E. H. Co. 12 Barb. Sup. Ct. Rep. 647. 460, 12 N. Y. 121. 3 Weinreich v. Weinrcidi, 18 Mo. .Ajjp. '• Pinkuin v. Kau Claire, 81 Wis. 301, 364, per Thomppon, .J., citin'^ Smlili '. 51 N. W. Rep. 550. VOL. I. 693 •29.] CONDITIONS PRECEDENT AND SUBSEQUENT. person capable of nniking an entry or claim ; the grantor cannot, for he has parted with his interest ; the grantee cannot, becanse he is a stranger to the condition. The right of entry for condition broken is not assignable at common law.^ 729. The reason for this is that nothing that lies in action, entry or reentry, can be granted over. To allow such an as- sio-nmiMit would be to encourag(3 maintenance.^ The rule is tlie same Avhether the bi'each was before or after the assignment. By a general assignment made by the grantor to a third person of all his property, the condition is gone, and the grantee's estate becomes absolute, discharged from the condition.^ And so, if the ' Ruch V. Kock Island, 97 U. S. 693; point, for it was held in Hayden t;. Stough- ton, 5 Pick. 528, and Brigham v. Sliat- tuck, 10 Pick. 305, that a testator, after creating an estate in fee upon conditiou, re- tained a " reversionary contingent estate " which would vest in the residuary devisee. And in Austin v. Cambridgcport Parish, 21 Pick. 215, where land had been con- veyed by deed upon a condition, upou a breach after the grantor's decease the re- siduary devisee brought an action for the land and recovered. The point was taken that the grantor's interest was a mere possibility which could not be assigned or devised, and upon his death would de- scend in strict privity to the heir; but it was held that it was a " contingent possi- ble estate," and therefore capable of be- ing devised. 1 Am. Law. Rev. 265, 268, article by F. C. Loring, Esq. New Jersey: Southard v. Central R. Co. 26 N. .T. L. 13 ; Cornelius v. Ivins, 26 N. J. L. 376. Now assignable by Stat, of 1851. 2 Co. Litt. 214a,- Nicoll ?>. New York & E. R. Co. 12 N. Y. 121 ; Williams i;. .Tack- son, 5 Johns. 489 ; Tinkhain v. Erie R. Co. 53 Barb. 393 ; Underbill v. Saratoga & W. R. Co. 20 Barb. 455 ; Rice i: Bos- People V. Society for Propagation of the Gospel, 2 Paine, 545 ; Guild v. Rich- ards, 16 Gray, 309; Rice v. Boston & W. R. 12 Allen, 141 ; Underliill v. Saratoga & W. R. Co. 20 Barb. 455; Parsons v. Miller, 15 Wend. 561 ; Jackson v. Top- ping, I Wend. 388, 19 Am. Dec. 515; Nicoll V. New York & E. R. Co. 12 N. Y. 121 ; Stevens r. Pillsl)ury, 57 Vt. 205, 52 .\ra. Rep. 121 ; Hooper v. Cummings, 45 Me. 359 ; Bangor v. Warren, 34 Me. 324, 56 Am. Dec. 657; Martin v. Ohio R. Co. 37 W. Va. 349, 1 6 S. E. Rep. 589 ; Hoyt V. Ketcham, 54 Conn. 60, 5 Atl. Rep. 606 ; Warner v. Bennett, 31 Conn. 468; Paul V. Connersville, &c. R. Co. 51 Ind. 527; Hiy:bee v. Rodeman, 129 Ind. 244, 28 N. E. Rep. 442. In California the right of reentry can he transferred. Civ. Code, § 1046. In England it was made assign- able by 8 & 9 Vict. ch. 106, § 6. In Connecticut it is now provided by statute that when, after an estate has been created by grant upon express condition, the reversion shall, before breach of such condition, become vested in any person other than the grantor or his heirs, such person shall, on breach of such condition, have the same right of entry upon such ton & W. R. Co. 12 Allen, 141 ; Guild v. real estate, and the same remedy for such Richards, 16 Gray, 309, 318; Bangor v. breach, by entry, suit, or otherwi.se, as the Warren, 34 Me. 324, 56 Am. Dec. 657; original grantor, or those who legally rep- Hooper v. Cummings, 45 Me. 359. resent him, would have if still owning « Underbill v. Saratoga & W. R. Co. such reversion. G. S. 1888, § 1053. 20 Barb. 455; Guild «;. Richards, 16 Gray, In Massachusetts there seems to be a 309. departure from the common law on this 594 REENTRY FOR FORFEITURE. [§ 730. grantor's estate is assigned under bankrupt or insolvent laws, he cannot afterwards maintain ejectment or a writ of entry to recover possession for a breach of a condition subsequent.^ The grantor's right of entry for a breach of condition cannot be taken in execution by his creditor.^ But it is held that the grantee in fee of land burdened with an easement granted upon condition may maintain an action to take advantage of a breach, or to enforce the performance of a condi- tion upon which his grantor had conveyed the easement to a third person.'^ 730. There is ordinarily no necessity for a demand upon the grantee prior to the entiy, or for a notice to him subse- quently.* But the condition may be such that a demand or no- tice for its performance will be necessary. Thus, where the condition was that if the grantee should neglect or refuse to support a fence around the granted land the deed should be void, it was held that there was no forfeiture until the grantee had " neglected " or " refused " to support a fence, after notice or request, and had failed to do so after a reasonable time aHowed for that purpose.'^ And where the condition was to pay certain legacies, and one of the legatees was absent from the State, be- fore there could be a forfeiture by reason of the non-payment of the legacy to him a demand of payment was necessary.^ In Indiana a demand for performance is equivalent to an entry," and a forfeiture cannot be claimed without such demand. If the grantee under a deed subject to a condition abandons the land without sufficient excuse, and without any offer to perform a con- tinuous service imposed by the condition, no demand for perform- ance is necessary to entitle the grantor to reenter. His abandon- 1 Stearns v. Harris, 8 Allen, 597. * I-anglcy v. Chapin, 134 Mass. 82 ; 2 Banpor v. Warren, 34 Me. 324, 56 Sanborn v. Woodman, 5 Cush. 30; How- Am. Dec. 657; Leach v. Leach, 10 Ind. ell i;. Jewett, 69 Me. 293; Tallman .-. 27i_ Snow, 35 Me. 342; Whitton r. Whiiton, s'pinknm v. Eau Claire, 81 Wis. .301, .38 N. H. 127; Licbrand v. Otto, 56 Cal. 309, 51 N. W. Rep. 550. Winslow. J., 242. Georgia: Code 1882, §2297. said: "It wonld be a singular rule of '' Merrifield c. CobleiRh, 4 Cush. 178. law which would forever prevent the « Brudstreet v. Clark, 21 Pick. 389. owner in fee of lands from questioning ' Ellis v. Elkhart Car Co. 97 Ind. 247, the right of another to maintain an case- 249 ; Cory v. Cory, 86 Ind. 567 ; Clark v. mcnt upon his land when there existed a Ilolton, 57 Ind. 564 ; Indianapolis, &c. R. violation of he express condition upon W. Co. v. Hood, 66 lud. 580; Kisley v. which the easement was granted." McXiece, 71 Ind. 434. 595 §731.] CONDITIONS PRECEDENT AND SUBSEQUENT. iin' the laiul is ocjuivalent to a renunciation of his riglits under the deeil, and is authority to the j^rantor to enter. ^ But if the condition is one that (h^pends upon the jiou-use of the property for a specified purpose for a time mentioned, there can be no demand for performance ; for when the time lias elapsed the breach of the condition is complete, and there is no breach until such time has ehipsed.^ 731. A court of equity will not declare a forfeiture ; nor ■will it lend its aid in any way to enforce a forfeiture ;^ nor will a court of equity enforce specific performance of that, in a deed, the non-performance of which works a forfeiture of the estate.'* But a court of equity, when merely asked to enforce a condi- tion as a ovenaut or agreement, may lend its aid to compel the party to abide by the covenant, and to this end may restrain a breach of a reasonable and legal condition by injunction, A court of equity will so interfere notwithstanding the fact that forfeiture is presented as the penalty of the breach. Thus, where a conveyance was made upon tlie express condition that intoxi- cating li(|ui)rs sliould not be sold upon the granted land, with a provision that the property should revert to the grantor upon a breach of the condition, the condition was enforced by issuing a perpetual injunction against the carrying on of the business of dealing in intoxicating drinks on the land conveyed.^ 1 Kichter v. Richter, 111 Ind. 456, 12 N. E. Kep. 698 ; Ellis v. Elkhart Car Co. 97 Ind. 247 ; Lindaey v. Lindsey, 4.5 Ind. 552 ; Cory v. Cory, 86 Ind. 567 ; Schuff V. Kaiisom, 79 lud. 458; Ilisley v. Mc- Niece, 71 Ind. 434. 2 Ellis V. Elkhart Car Co. 97 Ind. 247. 3 2 Story's Eq. Jur. § 1.319; Horsburg V. Baker, 1 Pet. 232; Warners. Bennett, 31 Conn. 468 ; Smith v. Jewett, 40 N. H. 530; l)ouinst the hardshi))s incident to such 293 ; Marwick v. Andrews, 25 5Ie. 525 ; forfeitures in very many cn.«cs." Spaulding V. Ilallenheck, 39 Barb. 79, 86 ; In some Kn>:lish cases relief in equity Bethlehem v. Annis, 40 N. H. 34, 77 Am. has hern given only upon the ground of Dec 700; Henry v. Tupper, 29 Vt. 358; accident, fraud, or surprise. Hill v. Bar- Carpenter 1-. Westcott, 4 R. I. 225 ; Han- clay, 18 Ves. 56, 16 Ves. 402 ; Reynolds cock V. Carlton, 6 Gray, 39; Sanborn v. v. Pitt, 19 Ves. 134. Woodm.in, 5 Gush. 36; Stevens v. Pills- -^ Peachy v. Somerset, 1 Strange, 447. bury, 57 Vt. 205 ; Rogan v. Walker, 1 ' Mcs-sersmith i-. Messersmith, 22 Mo. Wis. 527 ; Ritchie i-. Kansas, &c. Ry. Co. 309. 597 § 73±] CONDITIONS PRECEDENT AND SUBSEQUENT. tliere was a substantial breach of the condition, for which a for- feiture was adjiulgeil. It appeared also that the railway company took possession of the land conveyed, constructed a line of rail- road across it, built side-tiacks, depot buildings, roundhouse, stock-yards, water-tank, and other structures and conveniences for its accommodation thereon. The court therefore said that if the railway company elect to retain the land and improvements, they should be permitted to do so on payment of the value of the land, exclusive of improvements placed thereon by the company, meas- ured as of the date of the commencement of this action, with interest from that date.^ 1 Ritchie i'. Kansas, &c. Ry. Co. (Kans.) 39 Pac. Rep. 718, 724. "The estate grauted wa.s the bare land, and that estate, we think, reverts to the heirs of the grantor. The railroad tracks, roundlionse, depot buildings, etc., were not granted by the deed, but have been constructed by the grantee. The values of the various im- provements made by the railroad company are not stated in the findings. The de- fendant, being a railway corporation, has a right to condemn these lands, or so much thereof as is necessary for its use, 598 but, in case of such condemnation, vi'ould be required to make full i)ayment there- for. In this case the defendants have not filed any pleading praying relief from the effects of the forfeiture ; but as the plain- tiffs allege an equitable estate, and as the rules of pleading in actions of this kind under the Code are extremely liberal, we do not feel at liberty to direct a judgment to be entered on the special findings, which would be inequitable." Per Allen, J. See, also, Cohen v. St. Louis &c. R. Co. 34 Kans. 158, 8 Pac. Rep. 138, 55 Am. Rep. 242. CHAPTER XXII. RESTRICTIONS AS TO THE USE OF LAND. I. Restrictive conditions and covenants in general, §§ 733-749. II. Particular restrictions and their con- struction, 7.50-770. III. Who have the burden and benefit of restrictions, 771-783. IV. When restrictive covenants run with the land, 784-801. V. Waiver and release of restrictions, 802-813. VI. Enforcement of restrictions, 814-824. I. Restrictive Conditions and Covenants in Greneral. 733. The o-wner of land, desiring to protect and improve the neighborhood for any special purpose, may impose such restrictions as he sees fit in making sales of his land, provided such restrictions are not against public policy, and a court of equity will generally enforce them.^ He may determine for him- self what kinds of business are undesirable in the vicinity of residences, and covenants restraining them can be enforced witli- out any proof whatever that they are "injurious or offensive." ^ 1 Rowland v. Miller, 139 N. Y. 93, 34 N. E. Rep. 765, I.t N. Y. Supp. 701 ; Trustee.^ v. Lynch, 70 N. Y. 440; Trus- tees V. Thacher, 87 N. Y. 311 ; Hodge v. Sloan, 107 N. Y. 244, 17 N. E. Rep. 33.5; Thomp.son's App. 101 Pa. St. 225 ; San- born r. Rice, 129 Mass. 387, 396 ; Whit- ney V. Union Ry. Co. 11 Gray, 359, 71 Am. Dec. 715; Pcabody Heijrhts Co. v. Willsou (Md.), 32 Atl. Rej). 386 ; New- bold V. Peal)ody Heijibts Co. 70 Md. 493, 17 Atl. Rep. 372; Winnipesaukee Canip- Mceting Asso. v. Gordon, 63 N. U. 505, 3 Atl. Rep. 426 ; Webb r. Robbins, 77 Ala. 176; Moms v. Tuskaloosa Manuf. Co. 83 Ala. 565, 3 So. Ri?p. 689. 2 Rowland v. Miller, 139 N. Y. 93, 34 N. E. Rep. 765, per Earl, J. ; Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. Rep. 190. In Whitney v. Railway Co. 11 Gray, 359-363, Mr. Justice Bigelow said : " Every owner of real property has tho right so to deal witli it as to restrain its use by his grantees within such limits as to prevent its ajipropriation to i)urj)0sca which will in)i)air the value, or diminish the pleasure of the enjoyment, of the land wliich he retains. The only restric- tion on this right is that it sball be exer- cised reasontibly, with a due regard to public policy, and without creating any unlawful restraint of trade." To like effect in Coudert v. Sayre, 46 N. J. Eq. 380, 19 Atl. Rep. 190, Van Fleet, V. C, siiiii : "There cnn be no doubt that the dominion which the law gives every land- owner over his land, who owns it in fee, invests him with good right and full power, when he convevs a part, to impose such 599 § 734.] IIKSTIJICIIONS AS TO THE USE OF LAND. A covenant that a certain pioce of land sliouUl not be built upon is not contrary to pul)li(! policy.^ 734. Restrictions in the use of land conveyed in fee are not favored, but the courts will enforce theui where the inten- tion of the parties in their creation was clear. "In this country real estate is an article of commerce. The uses to which it should be devoted are constantly clianging as the business of the country increases, and as its new wants are developed. Hence it is contrary to the well-recognized business policy of the country to tie up real estate where the fee is conveyed with restrictions and prohibitions as to its use ; and hence, in the construction of deeds containing restrictions and prohibitions as to the use of property by a grantee, all doubts should, as a general rule, be resolved in favor of a free use of property and against restric- tions." ^ By indenture between adjoining owners, one of them — who was the owner of two estates, on the first of which was a brick house, and on the second, which was in the rear of the first, was a wooden house — covenanted that he would permanently close up a door opening on the land of the other from the brick house, and put a window in its place, and further covenanted that he would permanently blind the lower part of the windows in the wooden house, which overlooked the adjoining owner's land. It was held that the covenantor or his grantees could not be restrained limitations upon its use as will prevent property unsuitable for the purposes to his grantee, and those claiming under him, which it conld be most advantageously from making such use of the part con- devoted, have been sustained, and have veyed as may impair or diminish the value never been regarded as impolitic. They of the part which he retains. . . . Cove- have been enforced at law and in equity nants of this kind, which add either to without question. The restrictions are the value or desirability of the land re- deemed wise by the ovi^ners, who alone tained or conveyed, and which do not in are interested, and they rest upon and any way impose an unreasonable restraint withdraw from general and unrestricted upon trade or industry, have, as I think use but a small portion of territory within an examination of the authorities clearly the corporate limits of any city or mu- shows, uniformly been upheld and en- nicipality, and neither public or private forced." interest can suffer." In Trustees v. Lynch, 70 N. Y. 440, 446, i Coles v. Sims, 5 De G., M. & G. 1 ; Allen, J., said: "Covenants, conditions, Rankin v. Huskisson, 4 Sim. 13. and reservations imposing restrictions 2 Hutchinson v. Ulrich, 145 111. 336, 34 upon urban property, for the benefit of N. E. Rep. .5.56. And see Eckhart v. adjacent lands, having respect to light, Irons, 128 111. 568, 20 N. E. Rep. 687; air, ornamentation, or the exclusion of Peabody Heights Co. y. VVillson (Md.), 32 occupations which would render the entire At). Rep. 386. 600 RESTRICTIVE CONDITIONS AND COVENANTS IN GENERAL. [§§ 735, 736. from opening windows in the wall of the brick house, towards the land of the adjoining owner, by implication from the cove- nants of the indentui-e concerning the windows of the wooden house.i 735. Restrictions are to be fairly and reasonably inter- preted according to their apparent purpose. On the one hand they are not to be construed narrowly, and on the other hand they are not to be unduly enlarged.'^ "Tlify 'i^'e to be interpreted accord- ing to the apparent purpose of protection or advantage intended by the parties. The primary rule of interpretation is to gather the intention of the parties from their words by reading, not simply a single clause of the agreement, but the entire context, and, where the meaning is doubtful, by considering such surround- ino- circumstances as they are presumed to have considered when their minds met.^ A restriction will not be extended by implication to some other matter not within the words of the provision. In a conveyance of land with a water-power, a restriction that it shall be used " for milling and manufacturing purposes only " does not require the Lnantee to erect a mill of any kind, or to use the water- power; nor does it prevent his erecting a steam-mill with build- ino-s that are necessary incidents of a mill, such as a store and dwelling.* The construction of a restriction is for the court, and evidence showino- the meaning of the words used is not admissible unless the words are terms of art, or, by custom or usage at the place where the land is situated, the words have a local meaning.^ • 736. A restriction which amounts to a prohibition of the use of the land granted is void. The use of the land may be re- stricted by a covenant or condition creating a general scheme of im- provement, or by a covenant, condition, exception, or reservation creating an easement in favor of the grantor. I5ut a mere proliibi- 1 Christ Church v. Lavczzolo, 15G Mass. N. Y. S.ipp. 132, an.l ritiiiR Qnaekcnboss 89 .30 N E Rep 471. r. Lansing, G .Johns. 4'J ; Durycn r. Mayor, 2'smiJh V. Bradley, 154 Mass. 227, 28 62 N. Y. .W2, .",97 ; Wostcrn N. Y. L. Ins. N. K. Hep. 14, citing Jeffries .;. .Jeffries, Co. v. Clinton, 00 N. Y. .320 ; I'h.tt, Cov. 1 1 7 Mass. 184 ; Sanborn v. Rice, 129 Mass. 136. 387 ; Whitney v. Union Railway, 1 1 Gray, " Madore's App. 129 Pa. St. 15, 17 Atl. 359.' I'ci'- ^"*- 3 rinrk ('. Dcvoe, 124 N. Y. 120, 20 •' Ilutcliinson v. Ulrich, 145 111. 336, N E Rep. 275, per Vann, J., affirming 1 34 X. K. Rep. 556. 601 § 737. j RESTRICTIONS AS TO THE USE OF LAND, tion ill an absolute conveyance, which saves no rights to the g'rantor or to purchasers from him, is void. In a conveyance of kind on both sides of a stream with a mill, there was a clause " excepting and prohibiting the right of using the waters of the stream for turning any wheel not used or useful in fulling, dyeing, or dress- ing cloth." No right to the use of the water was saved to the grantor. This clause did not create a condition, because there were no words which, ex vi termini, imported that the vesting or continuance of the estate was to depend upon the observance of the stipulation. It is clear that the clause could not be construed as a covenant ; for there were no words which, upon any construc- tion, could be held to import a covenant. The restriction was in effect a prohibition of the use of the thing granted, and was therefore void.^ 737. Where a restriction is confined "within reasonable bounds, and the pai'ty in whose favor it is made has an interest in the subject-matter of the restriction, or others in privity with him have such an interest, it will be sustained.^ " It must not, therefore, be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner. It is clearly inconvenient both to the science of the law and to the public weal that such a latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves and their representatives, that is, their assets real and personal, to answer in damages for breach of their obli- gations. This tends to no mischief, and is a reasonable liberty to bestow ; but great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character which should follow them into all lands, however remote. Every close, every messuage, might thus be held in a several fashion ; and it would hardly be possi- ble to know what rights the acquisition of any parcel conferred, or what obligations it imposed,"'^ A covenant by a grantor, that neither he nor his assigns will sell any marl from his land adjoining the land conveyed, will not be enforced against a purchaser from him of the land intended 1 Craig V. Wells, 11 N. Y. 315. 3 Keppell v. Bailey, 2 Myl. & K. 517, - Gript; V. Landis, 21 N. J. Eq. 494, 535, per Brougham, L. C. 502, per Scudder, J. 602 RESTRICTIVE CONDITIONS AND COVENANTS IN GENERAL. [§ 738. to be burdened b}^ such covenant. If such a covenant could be enforced, the courts could not refuse to execute any covenant which has for its purpose anj' conceivable restriction upon the free use and enjoyment of lands. Such a covenant is also void as being in general restraint of trade.^ Restrictive covenants, though unlimited as to time, are not void as transgressing the doctrine of perpetuity, any more than an unlimited right of way or other easement is void for that reason. Restrictions are not estates in land, or even an equitable interest in land.2 But a covenant that is not really restrictive, but is one to do an act which creates such an interest, may be void as tend- ing to create a perpetuity.^ 738. A covenant not to engage in a particular business upon the land conveyed or retained is valid if limited to a reasonable time. A restriction in a conveyance, that the property shall not be used for hotel purposes for two years, is not invalid as imposing an unreasonable restraint of trade.* A covenant not to carry on a particular trade or business is binding upon an assignee with notice.^ A person doing business as a private banker commenced the erection of a banking-house on land he owned in the town where he conducted his business. Before the building was finished, he agreed to sell the building and lot by a contract which stated that the purchaser's object in making the purchase was to form a banking corporation, and then convey to it such property. The vendor agreed that when the corporation commenced business he would withdraw from business, and not reengage in business as a private banker in the borough at any time within ten years there- after. He also agreed that his covenant to withdraw and abstain from business should run with the land he had agreed to convey, and that in case he broke it the owner of the land at the time the breach was committed should have a right to maintain an action at law against him for its breach. After the proi)erty had been ctmveyed to the bank the vendor violated his covenant, and the bank sued him. T\w, v(mdor demurred to the declaration 1 Brewer v. Marshall, 1'.. N. J. Kq-537. " London & S. W. Ky. Co. v. Gonun. 97 Am. Dec. 679. 20 Ch. I). 502. 2 Keppell r Bailev, 2 Mylne & K.517; * Mollyneaux v. Witteubcrg, 39 N.h. Catt i;. Tourle, L. li! 4 Ch. 654. 547, 58 N. W. Rep. 205. !> Tarker v. Whyto, 1 II. & M. 167. 603 §v^ ToO-741.] KKSIKICTIONS AS TO THE USE OF LAND. tili'il in the case, and the question thus presented wiis, whether the covenant was so annexiul to the hxnd as to pass with its title, and confer upon the holder of the title a right to maintain an action at law for its breach ; and it was held that the covenant ran witli the laiid.^ 739. It is competent for the grantee to covenant to recon- vey the land for a specified sum within a period named.^ But a covenant by the grantee of land that the grantor ''■shall at any time have the right of preemption of the premises conveyed," at a price named, does not entitle the grantor to a reconveyance at any time on tendering that sum, but merely gives him the right to buy it in preference to any one else, whenever the grantee is willing to sell at that price.^ 740. A provision that the grantee shall not convey without the consent of the grantor is repugnant to the grant and void.^ A covenant in a deed not to convey or lease land to a Chinaman is void, as contrary to the public policy of the government, in contravention of its treaty with China, and in violation of the Fourteenth Amendment of the Constitution, and is not enforce- able in equity.'^ 741. Restrictions in regard to the use and enjoyment of the land conveyed are not usually conditions. Thus, in a deed of a lot of land, an express stipulation that a dwelling-house should be erected on the premises within a specified time and at a specified cost does not constitute a condition for the breach of which the estate would be forfeited.*^ Nor does a covenant that the land conveyed shall be used only for a specified purpose create a condition." In a deed of a lot of land in a block, a provision that the house to be built upon it shall be set back a certain distance, for the benefit of the other lots, not in the form of a condition and with- out any provision for forfeiture, is not a condition, but simply a 1 NatioiialRankf. Scgui-,.30X.J. L. 173. « Stone v. Houfrliton, i;59 Mass 17.5, .31 -See § 669; Randall v. Sanders, 87 i\. E. Rep. 719. See, also, Rawson v. N. Y. 578. Seliool Di.st. 7 Allen, 125 ; Ayer c. Emery, 3 Gareia v. Callcnder, 125 N. Y. 307, 20 14 Allen, 67 ; Sohier v. Trinity Church, N. E. Rep. 283, affirming 5 N. Y. Supp. 109 Mass. 1 ; Epi.scopal City Mission v. 934, 23 N. Y. St. Rep. 1002. Appleton, 117 Mass. 326 ; Barker v. ]5ar- ■♦ § 662. Murray ;;. Green, 64 Cal. 363, rows, 138 Mass. 578. 28 Pac. Rep. 118. ' Graves v. Dcterling, 120 N. Y. 447, '' Gandolfo v. Hartman, 49 Fed. Rep. 24 N. E. Rep. 655, affirming 41 Hun, 181. 64.3. 604 RESTRICTIVE CUXDITIOXS AND COVENANTS IN GENERAL. [§§ 742, 74o. limitation upon the use of the property. Althougli tiie grantor calls the limitation a reservation it is not strictly sucli, because it is not an easement created for his own use out of the property granted.^ 742. Restrictions as to the use of the land or the mode of its enjoyment, though expressed to be " conditions," will not be construed to be technical conditions unless it appears that the parties so intended or understood them to be " conditions," a breach of which would work a forfeiture of the estate.^ Thus " conditions " that '* no dwelling-house or other building, except necessary outbuildings, shall be erected or placed on the rear of the said lot," and that '' no buildings which may be erected on the said lot shall be less than three stories in height, exclusive of the base- ment and attic, nor have exterior walls of any other materials than brick, stone, or iron, nor be used or occupied for any other puipose or in any other way than as a dwelling-liouse for the term of tw^enty years " from a certain day, are to be construed as restrictions imposed as a part of the general scheme of im- provement, and not as "conditions."' ^ A proviso in a deed by one owning adjoining lots, that tlie roof of a stable shall never be raised higher than a certain number of feet above the street, is a restriction for the benefit of the otlier lots, and not a condition. That the restriction was introduced by the technical word " provided" did not make it a condition.'* 743. A restriction in the form of a common-law condition may be enforced by forfeiture if there is nothing in the context of the deed which warrants any other than the ordinary mean- ing of the technical words of condition employed, and nothing in the attending circumstances showing that the parties did not intend that the w^ords employed should have their ordinary meaning."' Wherever the terms of the instrument iiro ])lain and 1 Eckhart v. Irons, 128 111. 5G8, 20 N. I'rirsf, 131 1ml. 413, 31 N. K. Hep. 77; E. Hep. 687. youthard v. (Viitral H. Co. '26 N. J. L. - Aylin^' v. Kramer, 13.3 Mass. 12; 13; Clark i-. Marlin, 49 Pa. St. 289, 10 Skinner v. Shepiird, 130 Mass. 180; Ken- Am. L. Hep. 479. nedv?'. Owen, 136 Mass. 199,201 ; Parker '' Ayling v. Kramer, 1.33 Mass. 12. V. Nightingale, 6 Allen, .341 ; Jeffries v. * Jeffries v. Jeffries, 117 Mass. 184. Jeffries, 117 Mass. 184; Ei)iseopal City And see Fuller r. Ames, 4.'> Vt. 400. Missioni'.Appleton, 117 Mass. 326; Toliey t^ Adams v. Valentine, 33 Fed. Rep. V. Moore, 130 Mass. 448; Fuller v. Arms, 1 ; Dana v. Wentworlli, HI Mass. 291 ; 45 Vt 400- Lake Erie & W. H. Co. i;. Allen v. Howe, lo.-i Mass. 241 ; Gray v. G05 § 744.] RESTRICTIONS AS TO THE USE OF LAND. unanil)igiious, there is no hesitation in enforcing the actual con- tract UKule I)}' the parties.^ Tliere is jurisdiction in equity to enforce a restriction though it be in the form of a strict condition. A violation of the re- striction may be enjoined.^ A condition as to the use to be made of land is not a common- law condition when the deed expressly provides that a breach of such condition shall not work a forfeiture of the estate, but shall only give the grantor, his heirs and assigns, the right to enter and abate the nuisance provided against. ^ 744. An agreement restricting the use of the land con- veyed may be proved by parol. The office of a deed is not to express the terms of the contract of sale, but to pass the title pursuant to the contract. An agreement wiiich was a part of the consideration ft)r the sale, restricting the use of the property, is not merged in the deed, and does not qualify or in any way affect the title to the land ; and the admission of parol evidence to prove such an agreement is no infringement of the rule that parol evidence is not admissible to contradict, vary, or explain a writ- ten instrument. Thus evidence is admissible of a parol agree- ment that no part of the property should be used for the sale of intoxicating liquors, and upon proof of the agreement the grantee may be restrained from using the property for such purpose.* An agreement not to use certain land conveyed, for a particu- lar purpose, is not an agreement for the sale of an interest in or concerning such land, which is void under the statute of frauds if not in writing.^ Blanchard, 8 Pick. 283; McKissick v. 8 Tobey r. Moore, 130 Mass. 448. Pickle, 16 Pa. St. 140; McKelway y. Sey- * Hall v. Holomou, 61 Conn. 476, 23 mour, 29 N.J. L. 321 ; Sperry v. Pond, 5 Atl. Rep. 876, 29 Am. St. Rep. 218. The Ohio, 387, 24 Am. Dec. 296 ; Dolan v. language of Carpenter, J., is used in part Baltimore, 4 Gill, 394 ; Gibert v. Peteler, in the above statement. Collins v. Til- 38 N. Y. 165 ; Doorley i'. McConnell, 78 lou, 26 Conn. 368; Pierce v. Woodward, Hun, 580, 29 N, Y. Supp. 500; Rose v. 6 Pick. 206; Willis v. Hulbert, 117 Mass. Hawley, 118 N. Y. 502, 23 N. E. Rep. 151; Tallmadge v. East River Bank, 26 904. N. Y. 105 ; Knapp v. Hall, 20 N. Y. Supp. 1 Mills V. Seattle & M. Ry. Co. 10 42, 17 N. Y. Supp. 437. Wash. 520, 39 Pac. Rep. 246. ^ Hall v. Solomon, 61 Conn. 476, 23 -Barrett v. Blagrave, 5 Ves. 555; Atl. Rep. 876, 29 Am. St. Rep. 218; Bost- Coles V. Sims, Kay, 56; Hubbell v. War- wick v. Leach, 3 Day, 476, followed. In ren, 8 Allen, 173; Watrous r. Allen, 57 that case, decided in 1809, the court said : Mich. 362, 24 N. W. Rep. 104, 58 Am. "The agreement not to use his mill after Rep. 363 ; Clark v. Martin, 49 Pa. St. 289. a certain day is not within the statute of 60i) RESTRICTIVE CONDITIONS AND COVENANTS IN GENERAL. [§§ 745-747. 745. A parol restriction is not binding upon a subsequent purchaser unless he has notice of the agreement, but it will bind a subsequent purchaser who has actual or constructive notice of it.^ Thus, where the owner of lots on both sides of a street in a city made a plan which showed the street as widened eight feet on each side, and exhibited this to purchasers of lots, who were told that buildings to be erected on the lots should stand back eight feet from the street line, it was held that subse- quent purchasers of lots with constructive notice of the restric- tion were bound by it. " It is to be presumed that, relying upon this assurance, they paid a larger price for the lots than otherwise they would have paid." ^ 746. A grantor's parol promise to one purchaser to impose restrictions is not binding upon another purchaser "who had no knowledge of such promise when he took his title. Thus, where a plat-owner sells lots to sundry grantees on oral representations that all the lots in the plat will be sold subject to restrictions that no building shall be erected within fifteen feet of the street line, and the deed for each lot sold restricts such limitation to the lot therein conveyed, and afterwards the plat-owner sells the only re- maining two lots without restrictions to a grantee who has no no- tice of the oral agreement with the other grantees, such grantee cannot be enjoined from building within fifteen feet of the street line by a lot-owner whose complaint fails to show that plaintiff was influenced in purchasing his lot by his grantor's parol promise to him.^ 747. A restrictive covenant will not be implied unless such appears to be the presumed intention of the parties, or it ap- frauds and perjuries ; for this statute con- Miller, 26 N. Y. Siipp. 1091, 6 IMisc. Rep. templates only a transfer of lands, or 254. some interest in them." - TallmadKC i-. East Kiver Bank, 26 Nor is it an agreement not to be per- N. Y. lO."), 10'), per Sutiicrland, J. formed within one year, under another '^ Knapp i;. Hall. 17 N. Y. Supp. 437. clause of the statute. It has been pretty In the case of Tallmadfre v. Bank. 26 uniformly held that contracts which may N. Y. 105, which rocs as far if not far- be performed within one year are not ther than any other case to sustain the within the statute. Teters y.We.stborou^'h, respondent's contention, the grantee had 19 Pick. 364; Roberts i'. Rockbottom Co. ainiilc notice, when he took title, of the 7 Mete. 46 ; Lyou v. Kin;,', U Mete. 411 ; restrictions upon his premises, and the Doyle V. Dixon, 97 Mass. 208. j.laintiff took his title upon a-ssurances 1 Tallmad-e v. East River Bank, 26 that the restrictions were imposed upon N Y. 105- Hayward Homestead Asso. u. the defendant's land. 607 § 747.] RESTRICTIONS AS TO THE USE OF LAND. pears that the grantor intended to impose such restriction for the benefit of his own land or the hind conveyed, though not em- braced within the words of his deed, and that the grantee ac- cepted tlie deed with the intention of taking the benefit, and the burden as well, of the implied restriction, A dved of a portion of a large estate lef erred to a map of it of a certain date, as filed in the register's office. No map of that date was ever filed ; but after the execution of the deed a map was made and filed, by which the land composing that estate was entirely changed in its arrangement and division from the arrangement and division origi- nally made and appearing on the map referred to. These changes consisted in laying out new roads where none appeared on that map, and also in subdividing the tracts laid down on the map, and thus reducing their size. The purchaser complained that iti consequence of these changes, and subsequent conveyances made in conformity to them, the character of the whole neighborhood had been completely changed, and that then, after a lapse of more than twenty years, instead of the estate being divided into tracts or plats suitable for gentlemen's country residences, it was divided into small lots, upon many of which dwellings had been erected, and also that, instead of the land being an open country, with here and there a large and handsome dwelling, surrounded by beautiful grounds, as it was hiid out on the map referred to, it had become a populous village. These alterations in the arrange- ment and division of the land composing the estate, and the changes which in consequence had taken place, both in the manner in which the land was used and in the character of its occupants, the purchaser claimed had absolved him from all duty to keep his covenant to erect no more than one dwelling on the four acres purchased by him, and that he was consequently enti- tled to a judicial declaration that such restriction is without force. The purchaser claimed that his grantor, by referring in the deed of the four acres to the map then existing, made the map a part of the deed, and that when the deed and map were read together it must be seen that one of the promises made by implication to the purchaser was that the arrangement and division of the estate should remain unchanged. "It cannot be disputed," say the court, "that where the owner of a tract of land cuts it up or divides it in such manner as to give one part an additional value because of rights which, under the division, are given to it in the 608 EESTRICTIVE COXDITIOXS AND COVENANTS IN GENERAL. [§ 748. other part, and then causes a map or plan of his division show- ing such rights to be made, and afterwards makes sale, by the map or plan, of the part increased in value by rights given to it in the other part, and the part sold is subsequently conveyed by a deed which describes the land by reference to the map or plan, that such rights will pass to the grantee although no express grant is made." It was accordingly held that the purchaser had no right to understand that the grantor would adhere to the plan and division of the estate indicated by the map referred to, because the very land the grantee was purchasing was a part of a larger tract of seven acres laid down on that map, so that the map, in- stead of indicating an intention on the part of his grantor to abide by the scheme of division laid down on that map, evinced, on the contrary, a purpose to depart so radically from it as to give the complainant notice that he would not in his future con- veyances regard it. The purchaser had no right to understand or believe that his grantor would in his future conveyances abide by a plan of division which he had utterly disregarded in his conveyance to him.^ 748. A plan showing a building scheme is binding as a representation of the scheme upon the grantor who sells according to it. A building estate was oifered for sale by auc- tion in lots as a residential property, according to a plan and particulars of sale. This plan showed a private road terminat- ing in a public road, where there was a gate. On one side of the private road were shown large residential lots ; and on the other side smaller lots, called "stable lots," to go with the resi- dential lots. At the gate was shown a piece of land with a lodge on it, marked " lodge " on the plan. Each purchaser of a resi- dential lot and a stable plat covenanted to build one dwelling- house only of a certain value on such lot. Afterwards the piece of land marked " lodge " was sold to a purchaser who commenced building cottages on it. In a suit by a purchaser of a residential lot to enjoin the use of the land for any other purpose than a lodge and garden, it was held that an injunction should be granted. North, Justice, delivering judgment, said: "The lodge and its garden were devoted, hy the existing scheme, to the pur- pose of a lodge and garden. And thougli I quitch agree in the suggestion made that the marquis [the grantor] never entered intt) 1 Coudert );. Sayre, 40 N. J. Eq. 380, 19 At!. Hep. 190. VOL. I. 609 §§ 74!>, 750.] RESTKICTIONS AS TO THE USE OF LAND. any covenant to keep tliem up, or to have them used in that way, — tluit is to say, he never agreed to have a lodge-keeper there to open the gate, — yet, in my opinion, it would have been impossi- ble for him, having regard to the general scheme held out by the plans, to have pulled down the lodge and covered the ground with cottages, or to have done anything of that sort." ^ An intending purchaser, who is shown a plan of a building estate upon which lots are laid out, of even size, on each of which the ground-plan of the house without any other building is delin- eated, is not entitled to assume that the whole estate is governed by a building scheme that each lot, without variation, shall be built on strictly in accordance with the plan, and therefore he has no remedy against one of the grantors who afterwards built a house upon one of the lots, and also a conservatory and stable as adjuncts to his house.^ 749. A mere reference to a pL%n in describing a lot of land does not import a stipulation that the plan shall not be changed, and the lots used for purposes other than those indi- cated upon the plan, in the absence of any stipulation that the plan shall not be changed. Thus the fact that a portion of the land on a plan is designated as a public square does not give the purchaser of another portion of the land any easement or other interest in the square.^ Thus, too, the fact that part of the land is marked upon the plan as a church lot does not give the pur- chasers of other lots an easement by virtue of which they can prevent the use of such lot for any other purpose.'* II. Particular Restrictions and their Construction. 750. A restriction against the erection of any buildings other than dwellings with necessary outbuildings, such dwell- ings to cost not less than a certain sum, is violated by placing a tent on the lot, costing less than that sura, and used by the grantee and his family as a dwelling in the summer time, though they did not sleep in it.^ Such a covenant is clearly violated by the erection of a church.^ 1 Tindall v. Castle, 62 L. J. Ch. 555. 33 N. E. Rep. 689. As to a limitation of 2 Tucker v. Vowlcs (1893), 1 Ch. 195. time 'in .such a restriction, see Keeuing v. ' Coolidge V. Dexter, 129 Mass. 167. Ayling, 126 Ma.ss. 404. * Chapman v. Gordon, 29 Ga. 2.50. « St. Andrew's Churcli's App. 67 Pa. 5 Blakemore v. Stanley, 159 Mass. 6, St. 512. 610 PARTICULAR RESTRICTIONS AND THEIR CONSTRUCTION. [§ 751. A provision that no buildings should be erected on the land except dwelling-houses is violated by the conversion of a dwell- ing-house erected in compliance with the provision into a public eating-house. 1 A stable is not a necessary outbuilding upon a lot having no dwelling-house, under a restriction against buildings other than dwellings with necessary outbuildings.^ A covenant that any building upon the land shall be used only as a dwelling-house, and shall be of a certain height and have a stuccoed front iind slated roof, does not prohibit an advertisement hoarding or bill-board. The meaning of the covenant seems to be this, that if you erect a building, such as a house, it must be a house of a certain character. It does not relate to anything which cannot have a front or a roof. The structure referred to is not a building within the meaning of the covenant.^ 751. A covenant to erect only a single dwelling on a lot in a city block does ni)t prohibit the erection thereon of an apart- ment house designed for the use of several families.* The court, by Mr. Justice Craig, said : " We think the parties intended by the use of the words in the deed the same as if they liad said in the deed only one dwelling-house should be erected on each fifty- foot lot. No doubt the grantor had in mind, and desired to pro- hibit, the erection of several small dwellings on each fift^-foot lot; the intention being to require the erection of large struc- tures on the property. It was also no doubt the intention of the grantor to require the property to be used for residence purposes. Under the clause in the deed, stores, livery stables, warehouses, houses for manufacturing purposes, could not be erected ; nothing but dwelling-houses. At the time this deed was executed, flats or apartment houses where several families could reside were common; such buildings had been erected, and were then in use, within a short distance of these lots. If, therefore, it was the intention to prohibit the erection of a flat on the property, why did not the parties say so in the dee. Stephens, in EiK-^land. '•'' ^'m- 3^7 ; Coughlin v. Barker, 46 Mo. * McLean v. McKay, L. K. 5 P. C. .•!27, App. 54 ; St. Andrew's Cliurch's App. C7 835, 21 Weekly Rep. 7'JH, where it is said : I'n. St. 512. 629 § 777.] RESTRICTIONS AS TO THE USE OF LAND. scheme, and was for the benefit of all the land. " Thus, where the owner of a particular piece of land, on which a row of houses is intended to be built, executes a deed reciting that it has been laid out and is intended to be dealt with in a particular manner, and declares that it shall be a general and indispensable condi- tion of the sale of all or of any part of the land that the several proprietors for the time being shall observe and abide by the sev- eral restrictions and stipulations therein contained, and that he himself will at all times observe the like restrictions and stipula- tions, and these restrictions and stipulations are also enforced by mutual covenants, although the question may afterwards arise between subsequent purchasers of different portions of the land, one of the subsequent lot-owners will be bound and another will be entitled to enforce the covenant." ^ But there may be mutuality without any express covenant by the grantor that iiis remaining land shall be bound by restric- tions similar to those imposed upon the land sold. Such a restrictive covenant on the part of the grantor may be implied from tlie expressions of intention contained in his deed, or from the intent to be gathered from the whole instrument and the attending circumstances of the transaction. In this way a cove- nant by the grantor with every purchaser by deed having restric- tive covenants, that the grantor's remaining land shall not be used in a manner inconsistent with covenants imposed in his deeds, may be implied.^ 777. It is a question of fact, to be determined from all the circumstances of the case, whether restrictive covenants are for the benefit of the vendor alone, or are for the common ben- efit of all the purchasers. Mr. Justice Wills makes the following statement of the law : " The principle which appears to me to be deducible from the cases is, that where the same vendor, selling to several persons plots of land, parts of a larger property, exacts from each of them covenants imposing restrictions on the use of the plots sold, without putting himself under any corresponding obhgation, it is a question of fact whether the restrictions are merely matters of agreement between the vendor himself and his vendees, imposed for his own benefit and protection, or are meant 1 Coughlin V. Barker, 46 Mo. App. 54, - Mackenzie v. Childers, 43 Ch. T>. 67, per Thompson, J. See Whatman v. 265. Gibson, 9 Sim. 196. 630 WHO HAVE THE BURDEN AND BENEFIT OF RESTRICTIONS. [§ 778. by him and understood b}' tlie buyers to be for the common ad- vantage of the several purchasers. If the restrictive covenants are simply for the benefit of the vendor, purchasers of other plots of land from the vendor cannot claim to take advantage of them. If tbey are meant for the common advantage of a set of pur- chasers, such purchasers and their assigns may enforce them inter se for their own benefit." ^ Upon appeal, the Master of the Rolls, Lord Esher, declared Mr, Justice Wills' view of the law to be perfectly correct, and, in further elucidation of the principle, said: *' There are two lines of cases to be found in the books. The first is where there has been a sale of part of a property, with no then existing intention of selling the rest, and subsequently there is a sale of another part ; then, as regards the later sale, you cannot look at the conditions of the former sale, you must look only at the conditions relating to the later sale. The other line of cases is where the whole of a property is put up for sale (not necessarily under a building scheme), but is put up for sale in lots, subject to certain restrictive covenants ; then it is a ques- tion of fact whether it was or was not the intention that the restrictive covenants should be entered into for the benefit of each of the purchasers as against all the others, and it is a most material circumstance whether the vendor reserves any part of the property for himself. If he does not reserve any part, that is almost if not quite conclusive (unless there is something con- tradictory) that the covenants wliich he takes from the pur- chasers are intended for the benefit of each purchaser as against the others." ^ 778. Conditions of sale under which building lots are put up at auction may apply to lots remaining unsold as well as to those sold at the auction. " It appears to me," says Mr. Jus- 1 Nottinfrham Patent Brick Co. v. But- sard, 4 Ch. 1).-718. In Peck v. Conway, ler, 15 Q. B. D. i26I, 268, affirmed 16 Q. 119 Mass. 540, 540, Morton, J., snid : B.D. 778, Lord Esher, M. K., and Lord " The question whether such an casement Justice Lindley, approvin- Mr. .Justice is a personal ri;,'iit, or is to he construe.l Wills' view of the law. See, also, Spicer to be appurtenant to some other est.ite, V. Martin, 14 App. Cas. 12 ; Ilenals v. Cow- must be determined l)y the fair interpro- lishaw, 9 Ch. D. 125, II Ch. D. 86G; tation of the };rant or reservation creating Western v. Macderniot, 2 Ch. App. 72; the casement, aided, if necessary, by the Mauni;. Stephens, 15 Sim. 377. For ex- situation of the property and the .sur- amples of restrictive covenants for the rounding' civcumstnnrcs." benefit of the grantor alone, see Keatcs v. - Noiiinfrhnm Patent Brick Co. i;. But- Lvon, 4 Ch. Ai)i). 218; Ma.ster v. Man- ler, 16 Q. B. D. 77H, 785. 631 § 778. J KKSTincrioxs as to the use of land. tice Wills, " that where laud is put up to auctiou in lots, and two or more persons purchase according to conditions of sale contain- ino- restrictions of the character of those under consideration in the present case, it is very difficult to resist the inference that tliev were intended for the common benefit of such purchasers, especially where the vendor purposes to sell the whole of his piofierty. Where he retains none, how can the covenants be for his benefit? and for what purpose can they be proposed except that each purchaser, expecting the benefit of them as against his neio-hbors, may be willing on that account to pay a higher price for his land than if he bought at the risk of whatever use his neighbor might choose to put his property to? Where, therefore, the vendor desires to sell at the auction the whole of his property, the inference is strong that such covenants are for the common benefit of the purchasers ; and it seems to me that the strength of this evidence is not diminished by the fact that at the sale a considerable number of the lots may fail to find purchasers." ^ The judgment in this case and the opinion quoted are approved in a later case, in which Mr. Justice Stirling said : " Though the retainer by the vendor of some part of the property is a highly important element, it is after all only an element to be taken into consideration along with other circumstances in ascertaining the intention. It appears to me that, although the vendor may not part with his whole estate, there may be circumstances which show that the intention was that each purchaser should be enti- tled to enforce building restrictions against the vendor and every other purchaser." After stating the subject of the restrictive 1 Nottini;ham Patent Brick Co. v. But- covenants, to each of the other purchas- er 15 Q. B. D. 261, 269, affirmed on ap- ers, is a question of fact, to be determined peal, 16 Q. B. D. 778, 784, Lord Esher, by the intention of the vendor and of the Master of the Rolls, saying : " But I think purchasers, and that question must be that Wills', J.'s, view of the law on this determined upon the .same rules of evi- suhject is perfectly correct. In my view, dence as every other question of intention, he is right in saying that, when an estate And, if it is found that it was the inten- is put up for sale in lots, subject to a con- tion that the purchasers should be bound dition that restrictive covenants are to be by the covenants inter se, a court of equity entered into by each of the purchasers will, in favor of any one of the purchasers, with the vendor, and the vendor is intend- insist upon the performance of the cove- ing at this sale to sell the whole of the nants by any other of them, and will do so property, the question whether it is in- under such circumstances without intro- tended that each of the purchasers shall duciug the vendor into the matter." be liable, in respect of those restrictive f;32 WHO HAVE THE BURDEN AND BENEFIT OF RESTRICTIONS. [§ 779. conditions, he further says : " It seems to me, therefore, that these particulars and conditions constituted ^ an invitation to the public to come in and" purchase on the footing that the whole of the property offered for sale was to be bound by one general law affecting the chtiracter of the buildings to be erected thereon, and that the vendors ought not to be allowed, to destroy the value of that which was sold by authorizing the use of a part of the property for a purpose inconsistent with the law by which they purported to bind the whole." ^ 779. The decisions are not in accord as to the logical prin- ciple upon which they rest, though they agree in the result that restrictive covenants, made for the benefit of subsequent purchasers of the land to which the restrictions apply, may be enforced by any one purchaser against another. The theory that such covenants create easements upon the lands of each pur- chaser, for the benefit of all the lands subject to the same restric- tions, has the support of the courts of many leading States;^ but the courts of England, as well as those of some of the States, repu- diate the idea that the courts interfere on the ground of protect- ing an easement.^ " The equity would seem to spring from the presumption that each purchaser has paid an enhanced price for his property, relying on the general plan by which all the prop- 1 In the lan. Rep. 870. The learned judge further re- 646 WHEN RESTRICTIVE COVENANTS RUN WITH THE LAND. [§§ 792, 793. 792. By express stipulation of the parties, a covenant which of itself would not run with the land may be made binding as a lien. Thus, although the Code of California provides that a covenant cannot be made to run with the land except where such covenant is made in connection with and as a part of the conveyance or transfer of the land itself, an express agreement that such a covenant shall run with and bind the land is efTectual. The contract in question related to the furnishing of water to irrigate land by means of a ditch, and it was provided that the right to the water to be furnished should be and become appurtenant to the land, and this was followed by an express agreement that the contract to pay the money therefor should bind the land. This created a lien upon the land for the enforcement of the cov- enant, and, when recorded, was notice to subsequent purchasers.^ The subsequent purchaser held the land subject to the lien, but was not personally liable to pay the debt. A declaration by the parties that the covenants of a deed shall run with the land is not necessarily controlling on the question whether or not they do. If the covenant is not one of a nature to run with the land, or if it is not one created in a grant of the estate, the declaration of the parties does not make it a covenant running with the land.^ 793. To create a covenant running with the land, it is es- sential that with the making of the covenant there be a trans- fer of title from one party to the otlier,'^ unless there is the equiv- marks that, while these words are more ^ Spencer's Case, 5 Coke, 16 a ; Bally y. importaut, and hear more heavily upon Wells, 3 Wils. 29 ; Webb v. Russell, 3 T. the theory that a covenantor having no R. 393 ; Vyvyan v. Arthur, 1 Barn. & C. estate may, by his own special and in- 410 ; Keppell i;. Bailey, 2 Mylne & K. 517 ; tended contract, attach his covenant of Fresno Canal, &c. Co. v. Rowell, 80 Cal. warranty to the estate of another so as to 114, 22 Pac. Rep. 53 ; Dexter v. Beard, 130 rnn with that estate, yet they are entitled N. Y. 549, 29 N. E. Rep. 983, affirming to weight and consideration, also, u])on 7 N. Y. Siipp. II; Indianapolis Water the narrower inquiry whetiier the defend- Co. v. Nulte, 126 Ind. 373, 26 N. E. Rep. ant in tlie case in hand is or is not to be 72 ; Conduitt v. Ross, 102 Ind. 166 ; Wells deemed an entire stranger to the title, r. Benton, 108 Ind. 585, 8 N. E. Rep. 444, And see Nye v. Iloyle, 120 N. Y. 195, 203, 9 N. E. Rep. 601 ; Ilurd v. Curtis, 19 Pick. 24 N. E. Rep. I; Coleman v. Bresnahan, 459; Morse v. Aldrich, 19 Pick. 449, 1 54 Ilun, 619, 8 N. Y. Snjjp. 158; Hart v. Met. 544 ; Wheelock v. Thayer, 16 Pick. Lyon, 90 N. Y. 663. 68; Eastern. Little Miami R. Co. 14 1 Fresno Canal, &c. Co. v. Dunbar, 80 Oliio St. 48; Wheeler i-. Schad, 7 Nev. Cal. 530, 22 Pac. Rep. 275. 204. 2 Fresno Canal, &c. Co. r. Rowell, 80 See further, as to covenants running Cal. 114 22 Pac. Rep. 53 with the land, CH. x.xiii. 647 § 703.] RESTHICTIONS AS TO THK USE OF LAND. alent of a grant of an caiienient or servitude, wliicli may attach to the posseysion of the hind and run with it, regardless of any change of ownership.^ " Wliert; one {'arty covenants with an- other in respect of huul, and at tlu; same time, with and as a part of mailing the covenant, neither parts with or receives any title or interest in the hind, nor creat(^s an easement, or a right in tlie nature of an easement, for the benefit of the land, such a cove- nant is at best but a mere personal contract." ^ Thus, where a contract in no way connected with the title was made between two persons, whereby one of them agreed that no one should be allowed to erect a grist-mill on a water-privilege belonging to him, inasmuch as no interest in the land was transferred, the cove- nant was merely a personal contract, which did not burden the land in the hands of a subsequent grantee.^ In another case, the owner of two adjoining lots, in the deed conveying one of them, covenanted for himself, his heirs, executors, administrators, and assigns, that he would not erect on the lot remaining unsold any buildinof which should be reo-arded as a nuisance. The covenant had no relation to the land C(Miveyed, but referred wholly to premises with reference to which neither party parted with or received any title or interest at the time of, and as a part of mak- ing the covenant. It was, then, a mere personal covenant, not binding on a subsequent grantee of such premises. The question presented, therefore, was whether this personal covenant rendered the covenantor liable to respond for the acts of subsequent grantors, as well as his own, or only for his own ; and the court held that the gi-antor only intended to contract against his own acts, and the covenant should not be read distributively, as if the grantor had covenanted that he would not erect a structure which should be regarded as a nuisance, nor would his executors, admin- istrators, or assigns.^ In another case in New York,^ Chief Justice Follett, rendering 1 Bronson v. Coffin, 108 Mass. 175, 11 108 Mass. 175, 11 Am. Rep. 3.35, 118 Am. Kep. 335; Weyman v. Rin^^okl, I Mass. 156 ; Norcross r. James, 140 Mass. Bradf. Sur. 40, 54 ; Kettle River R. Co. v. 190, 2 N. E. Rep. 946. Eastern Ry. Co. 41 Minn. 461, 43 N. W. 3 Harsha v. Reid, 45 N. Y. 415. Rep. 469. 4 Clark r. Devoe, 124 N. Y. 120, 26 N. - Kin;,' V. Wight, 155 Mass. 444, 29 N. E. Rep. 275. E. Rep. 644, per Morton, ,J., citing Sav- 5 Mygatt v. Coe, 124 N. Y. 212, 26 N. age V. Mason, 3 Cush. 500; Morse v. Al- E. Rep. 611. Upon a second appeal of diich, 19 Pick. 449; Bronson v. Coffin, this case, new facts appeared, so that the 648 WHEN RESTRICTIVE COVENANTS RUN WITH THE LAND. [§ 793. the judgment of the Second Division of the Court of Appeal?:, examined at length the doctrine that privity of estate is not essen- tial to the making of a covenant that will run with the land. " This opinion has been founded almost exclusively upon the au- thority of an ancient case known as the ' Prior's Case,' ^ cited by Lord Coke. In controverting this view. Sir Edward Sugden, now Lord St. Leonards, has subjected the Prior's Case to a most searching criticism, which results in its complete overthrow as authority on this question, showing that the portions of it par- ticularly relied on were not judicial resolutions, but an addition by the reporter ; that the case does not contain tlie doctrine usually extracted from it ; and that it has received no cnnfiima- tion, but the contrary', from subsequent adjudications. It may be safely laid down that, if the doctrine that the covenants for title will run with the land, even when entered into by a stranger to the land, has no better foundation than the authorit}'' of this case, it cannot be sustained ; and it would seem to be the better opinion that, in order for a covenantor's covenants to run with the land, he must also be a grantor of the land which they affect. No modern case decides that a stranger's covenants may run with the land ; but in a dictum of Moncure, J., in the recent case of Dickinson v. JToomes,^ this doctrine is broadly enunciated. . . . In the American Law Review ^ Judge Hare's note is discussed, and the writer, in conclusion, says : ' But the authoi'ity of Pa- kenham's Case seems to be overthrown by the investigations of Sugden and Washburn, who produce unquestionable proof that the case was not decided by the court as reported by Lord Coke, but that Lord Coke's report was the expi'ession of a mere dictum by Finchden.' . . . The editor of the ninth American edition of Smith's Leading Cases (vol. i. p. 211) takes a different view of this question from the one taken in the earlier editions. He says : ' It seems that there must be between covenantor and cove- nantee the relation of grantor and grantee, which is all that there is between the grantee and his assignee. It is not thought that a covenant of warranty made by a stranger to the land would run First Division of the Court of Appeals re- Mygatt i'. Coo, 142 N. Y. 78,36 N. E. versed the decision above referred to on Rep. 870. other points. The doctrine that a. stranger ' Y. B. 42 Edw. III. to the title cannot make a covenant that ^ g Grjitt. .'553,400. will run with the land was recognized. * Vol. 20, p. 404. 649 § 794.] RKS TUICTIONS AS TO THE USK OF LAND. with it, aiul perhaps the rehition necessary to exist is that which would have constituted privity of estate at common hiw before the statute of quia ejnptores, although the rent or services re- served, which were perhaps an incident of the old privity, are not now' usual.' " 794. There are two classes of covenants that are annexed to the land and follow it into the hands of heirs and as- signees. The one class, represented by tlie usual covenants for title, runs only with the estate in the land. The other class, represented by equitable covenants, is attached to the land itself and follows the possession of the land. Lord Coke thus stated the distinction : " So note a diversity between a use or warranty, and the like things annexed to the estate of the land in priv- ity, and commons, advowsons, and other hereditaments annexed to the possession of the land." ^ Mr. Justice Holmes, stating this distinction, says : " Rights of the class represented by the ancient warranty, and now by the usual covenants for title, are pure matters of contract, and, from a very early date down to comparatively modern times, lawyers have been perplexed with the question how an assignee could sue upon a contract to which he WHS not a party. But an heir could sue upon a warranty to his ancestor, because for that purpose he was eadem j^ersona cuin antecessore. And this conception was gradually extended in a qualified way to assigns, where they were mentioned in the deed. But in order tliat an assignee should be so far identified in law with the original covenantee, he must have the same estate, that is, the same status or inheritance, and thus the same persona, quoad the contract. The privity of estate which is thus required is privity of estate with the original covenantee, not with the original covenantor ; and this is the only privity of which thei'e is anything said in the ancient books. . . . On the other hand, if the rights in question were of the class to which commons belonged, and of which easements are the most conspicuous t3'pe, these rights, whether created by prescription, grant, or covenant, when once acquired, were attached to the land, and went with it, irrespective of privity, into all hands, even those of a disseisor. ' So a disseisor, abator, intruder, or the lord by escheat, etc., shall have them as things annexed to the land.' ^ In like manner, when, as was usual, although not invariable, the duty was i-e- 1 Chudleigh's Case, 1 Hep. 120 a, 122 6. - Chudleigh's Case, 1 Hep. 12()«, 122 6. 650 WHEN RESTRICTIVE COVENANTS RUN WITH THE LAND. [§ 795. garded as falling upon land, the burden of the covenant or grant went with the servient land into all hands, and of course there was no need to "mention assigns. . . . When it is said that in this class of cases there must be a privity of estate between the covenantor and the covenantee, it only means that the cove- nant must impose such a burden on the land of the covenantor as to be in substance, or to carry with it, a grant of an easement or quasi easement, or must be in aid of such a grant ; ^ which is generally true, although, as has been shown, not invariably,^ and although not quite reconcilable with all the old cases except by somewhat hypothetical historical explanation. But the expres- sion ' privitv of estate ' in this sense is of modern use, and has been carried over from the cases of warranty, where it was used with a wholly different meaning." ^ 795. Restrictions in the nature of easements may be cre- ated by agreement or indenture between owners who have already acquired their lands. " In order to attach the easement to the dominant estate, it is not necessar-y that it should be cre- ated at the moment when either the dominant or the servient estate is conveyed, if the purport of the deed is to create an ease- ment for the benefit of the dominant estate." * On this ground was sustained a covenant by a railroad company with the owner of adjoining land to maintain a side track and depot at a particular point.'^ " The character of a covenant of this kind must depend upon the effect of the entire agreement of which it is a part, and, where the benefit and the burden are so inseparably connected that each is necessary to the existence of the other, both must go together. The liability to the burden wall be a necessary inci- dent to the right to the benefit." ^ Therefore an agreement under seal between riparian owners adjusting their respective rights to 1 Bronson v. Coffin, 108 Mass. 175, Pennsylvauia R. Co. 54 N. J. L. 233,23 185, 118 Mass. 156. Atl. Hep. 810. 2 Pakenham's Case, Y. B. 42 Edw. III. ^ Pitkin v. Long Island K. Co. 2 Barb. 3 PI. 14. Cli. 221, 47 Am. Dec. 320; Gilmer v. 3 Norcros.s v. James, 140 Mass. 188, Mobile & M. Ky. Co. 79 Ala. 569,58 Am. 189, 191, 2 N. E. Kep. 946. Kep. 623. * Ladd V. Boston, 151 Mass. 585, 24 N. '' Ilorni;. Miller, 136 Pa. St. 640,655, 20 E. Rep. 858,21 Am. St. Rep. 481, per All. Rep. 706, per Clark, J. And see Holmes, J., citin<; Lonisville & N. 11. Co. Colemau v. Coleman, 19 Pa. St. 100, 57 V. Koelle, 104 111. 455 ; Wetherell v. BroKst, Am. Dec. 641 ; Carr v. Lowry, 27 Pa. St, 23 Iowa, 586, 591. And see Costigan v. 257. 651 § T'Jtl.] RF.STRlCriONS AS TO TIIK USE OF LAND. the waters of the stream, and entered into for the mutual benefit of their respective heirs or grantees, runs witli the lands of the respective proprietors, and it is of no consequence that in subse- quent deeds of the lands no mention of tiie agreement is made.^ Where a landowner, desiring to build a dam and raise the water of a stream over which there was a bridge and highway, covenanted with the town to keep in repair a new bridge and its appioaclies, being part of a highway, such covenant may run with the land so as to bind the covenantor's successors in title.^ 796. A restriction which is merely a personal covenant with the grantor can be enforced by him only. In a deed of land bounded on a street tliere was a restriction that no building shoukl be placed within a certain distance from the street; but there was nothing in the deed to show that the parties intended that the restriction should create a servitude or easement on the granted land, which should attach to and be an appurtenance to any neigliboring land. The court lield tliat the restriction was merely a personal covenant with the grantor which his heirs could not enforce after his death. The mere fact that the grantor owned other land separated only by a railroad from the land conveyed does not show that the object of the restriction was to benefit this land. " In the absence of any words in the deed to this effect, or any reference to a plan showing a geneial sclieme of improve- ment, the grantees took their estate without any notice, express or constructive, that the restriction vv^as intended for the benefit of the adjoining estate. For anything that appears, it may have been intended only for the benefit of the grantor and for his per- sonal convenience."' '^ An agreement whether oral or in writing between the owners of adjoining lots of land simply to erect buildings in a uniform manner and at a certain distance from the street does not create 1 Horn V. Miller, 13G Pa. St. 640, 20 oblitration to repair fences ;uid highways." Atl. Rep. 706. Per Holmes, J. - Miildlefield r. Church Mills Kuiitinj,' - Skinner v. Shepard, 130 Mass. 180, Co. 160 Mass. 267, 35 N. E. Rep. 780*. 181, per Morton, J. For other instances "It is true that, in general, active duties of restrictions which were construed as cannot be attached to land, and that af- personal covenants only, see Badj;er v. firmative covenants only bind the cove- Boardman, 16 Gray, 559 ; Jewell v. Lee, nantor, his heirs, executors, and adminis- 14 Allen, 145, 92 Am. Uec. 744; Lowell trators. But there are some exceptions, Tnst. Sav. ;,'. LowtP, 153 Mass. 530, 27 N. and most conspicuous amon<( them is the E. Rep. 518 ; Mitchell v. Leavitt, 30 Conn. 587. 652 WHEN RESTRICTIVE COVENANTS RUN WITH THE LAND. [§ 797. any perpetual restraint on the use of the land by either of tliem. It is completely satisfied when the buildings are erected in accord- ance with the agreement, and there is no implication that they shall thereafter remain in the same position or of the same size or shape. ^ 797. A permanent restriction as to the use of land will not be implied from an independent agreement between adjoining owners. While such an agreement may create a right in the nature of a servitude or easement which can be enforced in equity, although it does not run with the land by virtue of a privity of estate between the parties, yet it must appear by express stipula- tion or unavoidable implication that the parties intended to impose a permanent restriction on the use of their respective estates. "If such restrictions should be incorporated into a grant in the form of a condition or reservation, or appended to it as a covenant real, or so inserted as to cai-ry with it a notice to all persons claiming title in the premises that the free use and enjoyment of them is to a certain extent qualified or limited, the intent to create a ser- vitude or privilege in its nature perpetual would be clearly mani- fested. But where the agreement for such a right or interest in real property rests wholly in parol, or is in the form of a covenant in gross, or is entered into by a written contract separate and dis- tinct from the deed or instrument by which the title is passed, it must contain a stipulation which in express terms provides that the right or privilege is to be a permanent resti'iction on the land to which it relates, or it must be so framed as to lead to the un- avoidable conclusion that such was the intention of the parties; otherwise it would be destitute of the essential element of a ser- vitude or easement designed as a perpetual burden on one estate for the use and benefit of another, and would be nothing more than an agreement for the immediate and present mode of enjoy- ing or using the property, having relation to its situation and con- i Ihibljc'll /•. Warren, 8 Allen, 173, 179. fjive greater permanence to the prescribed Bi<;elow, C. J., said : " Neither in law nor mode of occupying their land tlian might in equity could any desifrn or purpose be be secured by the nature of the structures imputed to the parties beyond that which which were about to be erected on the was clearly expressed or necessarily ini- j)remiaes ; and, if they were of a solid and plied from the agreement into which they durable character, that the owners would had entered. The jiresuniption of law as not be likely to change them essentially well as of sound rea.son would be in such for a long period of years." case that the parties did not intend to 653 § 798.] RESTRICTIONS AS TO THE USE OF LAND. ilition, and the ^^npose to which it was to be appropriated at the time when tho agreement was niade.''^ 798. Whether the covenant is personal, or is for the benefit of the adjacent land, is a question of intention, to be deter- mined from the words of the deed, from the circumstances of the conveyance, and from the situation of the property at the time. It will be regarded as personal merely unless an intention to the contrary appears or may be presumed. If the adjoining land be- longs to tlie covenantee, and is manifestly benefited by the restric- tion, there may be a presumption that it was intended for the benefit of that land.- But the restriction will be regarded as per- sonal to the covenantee, and will not pass by transfer of the land unless there is something to indicate an intention that the re- striction be attached to the land. Thus, where a deed contains a condition that no building shall ever be erected on the land, and there is nothing to indicate that the condition is intended to be attached to the adjoining land and to pass with it, a purchaser of such land cannot enforce it. " An easement or servitude of this description," said Mr. Justice Allen, " ought not to be held to be imposed for the benefit of an adjacent lot of land, in the absence of any words in the grant itself implying it, unless the circumstances and situation at the time of the grant were such as to make it manifest that the condition or restriction or reservation was intended to be for the benefit of such adjacent lot and to be annexed to it as an appurtenance." ^ A stijDulation in a deed poll, that the grantee, his heirs and as- signs, shall make and maintain a fence between the granted land and that of the grantor, is not a covenant that runs with the land, but only a personal obligation of the grantee implied from his acceptance of the deed. Such a stipulation will not sustain an action by a subsequent purchaser from the grantor of his adjoin- ing land against a purchaser from the grantee in the deed poll.* 1 Hubbcll V. Wan-en, 8 Allen, 17.3, 178, 724, per Bramwell, J.; Keatcs v. Lyon, 4 per Bigelow, C. J. Ch. App. 218. - Renal.s v. Cowli.shaw, 9 Ch. D. 12.5; ■> Kennedy v. Owen, 1.36 Mass. 199. Peck V. Conway, 119 Ma.ss. 546; Tobey Allen, J., said : " It i.s plain that an agree- V. Moore, 130 Mass. 448. ment nor under seal cannot, technically ^ Lowell Inst, for Savings v. Lowell, speaking, run with the land," following 1.53 Mass. 5.30, 533, 27 N. E. Rep. 518. Parish v. Whitney, 3 Gray, 516, and Mar- And see Master u. Hansard, 4 Ch. D. 718, tin v. Drinan, 128 Mass. 515. In Bur- bank V. Pillsbury, 48 N. H. 475, 97 Am. 654 WHEN RESTRICTIVE COVENANTS RUN WITH THE LAND. [§ 799. 799. A party-wall agreement in the usual form between adjoining land-owners runs with the land. Thus, an agree- ment under seal between adjoining lot-owners, for themselves, their heirs and assigns, acknowledged and recorded, and providing that either pai't}^ may build a party-wall, one half on the land of each, and that whenever the other party uses the wall so built he or she shall pay one half the cost of its erection, is a covenant running with each lot. Such an agreement creates an easement of use and support in favor of each lot-owner and his successors in title in the half of the wall which stood on the other lot, and in the land under the same. Each lot of land becomes entitled, therefore, to the benefits and subject to the burdens arising from the covenants contained in the agreement, and relating to the erection and maintenance of the wall. The}' inhere in and belong to it.^ If the original owner and party to the covenant does not use the wall, but conveys his land to one who does use it, the ori- ginal owner is not liable on the covenant, but his grantee is the party liable upon it.^ The burden as well as the benefit of the covenant passes with the land.^ The grantee of the covenantor is personally liable on such covenant running with the land, if he is the first to use the wall.^ A grantee not using the wall is not Dec. 633, and Kellogg v. Robinson, 6 Vt. (Minn.), 63 N. W. Rep. 264 ; Warner v. 276, 27 Am. Dec. 550, such an agreement Rogers, 23 Minn. 34 ; Mackey v. Harmon, was held to run with the land. In Bron- 34 Minn. 168, 24 N. \V. Rep. 702 ; Sharp son V. Coffin, 108 Mass. 175, 11 Am. Rep. v. Cheatham, 88 Mo. 498, 57 Am. Rep. 335, a covenant by the grantor that he 433 ; Hagerty v. Lee, 54 N. J. L. 580, 25 would maintain a fence between the land Atl. Rep. 319, 26 Atl. Rep. 537 ; Conduitt granted and his remaining land, with a v. Ross, 102 Ind. 166; Thomson v. Cur- provision that the covenant should be per- tis, 28 Iowa, 229 ; Weill v. Baldwin, 64 petual and obligatory upon subsequent Cal. 476 ; Piatt v. Eggleston, 20 Ohio St. owners, was held to run with the land. 414. In New York, however, the cove- See Hodge V. Sloan, 107 N. Y. 244; nant is considered a i)ersonal one, and Bowen v. Beck, 94 N. Y. 86; Atlantic docs not run with the laud. Hart ij. Lyon, Dock Co. V. Leavitt, 54 N. Y. 35 ; Georgia 90 N. Y. 663 ; Scott v. McMillan, 76 N. So. R. Co. V. Reeves, 64 Ga. 492; May- Y. 141 ; Cole v. Hughes, 54 N. Y. 444. nard v. Moore, 76 N. C. 158; Norfleet v. - .Jordan v. Kraft, 33 Neb. 844, 51 N. Cromwell, 64 N. C. 1. W. Rep. 286. 1 King !;. Wight, 155 Mass. 444, 29 N. » Fir.-'t Nat. Bank v. Security Bank E. Rep. 644, per IMorton, J.; Richardson (Minn.), 63 N. W. Rep. 264; Shaber v. V. Tobey, 121 Mass. 437, 459, 23 Am. Rep. St. Paul Water Co. 30 Minn. 179, 14 N. 283; S'avage v. Mason, 3 Cush. 500; W. Rcp.874 ; Miickey r. Harmou,34 Minn. Maine v. Cum.ston, 98 Mass. 317 ; Stand- 168, 24 N. W. Rep. 702. ish j;. Lawrence, HI Mass. Ill; .Jordan * First Nat. Bank v. Security Bank V. Kraft, 33 Neb. 844, 51 N. W. Rep. (Minn.), 63 N. W. Rep. 264. And see 286; First Nat. Bank v. Security Bank 655 §^ 800, 801.] RESTRICTIONS AS TO THE USE OF LAND. liuble to a personal judgment on tlie covenant, but this creates nil equitable lien or charge upon the land, and the only remedy, aside from the personal liability of tlie jiarty using the wall, is a judgment to enforce such lien. The term " using the wall " in the ordinary party-wall agree- ment means making use of it in the process of constructing a building on the adjoining lot; and the owner who constructs such building is the person who uses the wall. Neither his grantee nor mortgagee is personally liable, as assign(>e of the covenant, for a use of the wall made by his grantor or mortgagor.^ 800, A party-wall covenant between adjoining owners does not run with the land when there is no privity of estate between them ; as where one such owner covenants with the other that ■whenever he or his heirs or assigns should use the wall he or they would pay the other who should build the wall, or his assigns, the value of the part of such wall which he or they might use. After the land has passed to another who has used the wall, he is not liable to an action brought by the grantee of the part}^ who built the wall ; but an assignee of the contract might recover upon it. There was only a privity of contract between the original cove- nantors without any privity of estate ; and therefore neither the benefit nor the burden of the covenant ran with the land to which it related.^ 801. Covenants running with the land inure to the cove- nantee's mortgagee and grantees, both, in proportion to their rights ; and a purchaser at the foreclosure sale can sue the cove- nantor as a privy in estate. To whom the covenants run, as be- tweeii the mortgagee on the one hand and the grantee of the mortgagor on the other, has been sometimes a difficult and trou- blesome question, and logically is so yet, although now substan- tially settled, "• Under the old system, which regarded the mort- gage as transferring to the mortgagee the entire legal estate, leaving in the mortgagor only an equity which courts of law could not recognize, it was necessary to say, and was said, that the cove- nants running with the land followed the legal estate into the Fresno Canal, &c. Co. v. Rowell, 80 Cal. Rep. 611 ; Scott v. McMillan, 76 N. Y. 114, 2-2 Pac. Rep. 53. 144 ; Nye v. Hoyle, 120 N. Y. 195, 24 N. 1 Pfeiffei- (•. Matthews, 161 Mass. 487, E. Rep. 1. See Weld v. Nichols, 17 Pick. 37 N. E. Rep. 571. 538. 2 Cole V. Hughes, 54 N. Y. 444, 13 Am. 656 WAIVER AND RELEASE OF RESTRICTIONS. [§ 802. hands of the movtgagee, where they remained entire and com- plete ; and tlie grantees of the equity, having no legal estate, could have no right to the covenants, which already belonged to an- other.i But the injustice of the doctrine drew upon the ingenuity of equity to supply a remedy; and where the grantee holding covenants had executed a mortgage, and thereafter, having been evicted from the premises by a paramount title, his grantor and covenantor settled with the mortgagee by paying the mortgage, in full discharge of the covenants, and so assuming to cancel them, the grantee was allowed by a decree in equity to sue the cove- nantor at law, and the latter was restrained fiom setting up as a defence in any manner the deed or deeds of mortgage which had diverted the covenants from the main line of succession.^ By this circuitous route the just result was reached of dividing the benefit of the covenants between mortgagee and owner of the equity of redemption according to their respective rights, and the same just distribution is effected under our system by a dif- ferent process. We regard the mortgagor as retaining the legal estate, and the mortgagee as having a lien upon it for his security. The covenants therefore run to both mortgagee and grantee of mortgagor in proportion to their respective rights, and the cove- nant is divisible accordingly." ^ V. Waiver and Release of Restrictions. 802, A waiver or abandonment of a restriction may be shown by the subsequent conduct of the grantor with refer- ence to the adjoining property for the benefit of which the restric- tion was imposed. Tiius, where the owner of land laid it out in lots intended for residences only, and sold a lot with the restric- tion that it should not be used for any purpose other than that of erecting a dwelling-house upon it, but afterwards sold the other lots without any restriction whatever, it was held that he had put it out of his power to carry out his plan of using the jiroperty for 1 It was so held in Carlisle v Blamire, clear exposition of this doctrine will be 8 East, 487. found in White i\ Whitney, 3 Mete. 81, 2 Thoroton v. Court, 3 De Gcx, M. & 87, and it has been asserted in Town v. G. 293. Needham, 3 Paige, 546, 24 Am. Dec. 8 Mygatt V. Coe, 142 N. Y. 78, 88, 36 246, and Andrews v. Wolcott, 16 Barb. N, E. Rep. 870, per Finch, J. A very 21, 25. VOL. I. 657 § 803.] RESTRICTIONS AS TO THE USE OF LAND. residences only, and a court of equity will not aid him in enforcing the restriction.^ A grantor who has sold a lot of land with a restriction against the usL' of the land for the sale of intoxicating liquors, and has afterwards sold an adjoining lot without such restriction, will not be allowed to insist upon the restriction in the first deed ; for by selling such adjoining lot without the restriction he diminishes the value of his former grantee's property. There should also be some mutuality in such a provision.^ If a grantor, after making such a restriction, consents to the sale of intoxicating liquors by another in the same village, such consent may be considered as a waiver of the condition for its non-sale attached to other lands in the village.'^ The grantor's failure to perform a covenant may excuse a failure of his grantee to perform a covenant; as, where a grantor cove- nanted to pave the streets adjoining the land conveyed, his failure to keep the covenant was held to excuse the purchaser fiom com- pliance with his covenant to build on the land within a specified time.'* 803. Where two persons are bound to each other by differ- ent covenants made at the same time, a breach by one party of his covenant does not necessarily extinguish the covenant of the other. Much depends upon the form of the action. Where a purchaser is before the court resisting an attempt by his grantor to compel him to abide by the strict letter of his covenant, it is undoubtedly " the right of the court, as well as its duty, to look at the conduct of the pai'ties to the litigation, and also at the conduct of their predecessors in right and duty, to see how they had dealt with each other in respect to the covenant, and also to contrast the condition of the property when the litigation arose with its con- dition when the covenant was made, and then either decree or deny specific performance, as should appear to be most in accord- ance with justice and right under all the circumstances of the case." But the case is quite different where a purchaser is before the court in advance of a breach asking to be relieved from the obligation of his covenant. Even if reasons existed which might 1 Duucan v. Central Ry. Co. 85 Ky. ^ Chippewa Lumber Co. v. Tremper, 525, 4 S. W. Rep. 228. 75 Mich. 36, 42 N. W. Kcp. 532. ■^ Jcnks V. Pawlowski, 98 Mich. 110, 56 < McCoiinj^hy v. Pemberton, 168 Pa. St. N. W. Rep. 1105. 121, 31 At!. Rep. 996. 658 WAIVER AND RELEASE OF RESTRICTIONS. [§ 804. induce a court of equity to decline to specifically enforce a cove- nant, it does not follow that the court would, in advance of a breach of the covenant, declare it to be a nullity in a suit insti- tuted b}^ the covenantor. 1 804. If the grantor releases one purchaser from a restric- tion he cannot himself come into equity to enforce the same restriction against other purchasers, though one purchaser entitled to the benefit of it may enforce it against another who is bound by it. He cannot take away the benefit of his general plan from one purchaser and enjoin a breach of it by another, though he may have a claim for damages at law for such breach by another. " It is not a question of mere acquiescence," said Lord Eldon, " but in every instance in which the grantor suffers grantees to deviate from a general plan, intended for the benefit of all, he deprives others of the right which he had given them to have the general plan enforced for the benefit of all. In such cases I have always understood this court will leave the parties to their remedy at law." ^ So, if a grantor permits material breaches of a covenant to be committed by some purchasei's, he cannot obtain an injunction to compel another purchaser to observe the same covenant. If the grantor is entitled to any remedy it can only be the damages which he may obtain in an action at law."^ The grantor is equally barred of his remedy- though the purchaser against whom he seeks to enforce the cove- nant bouglit his land and made his covenant after the breaches by the other purchasers had been committed.^ The Duke of Bedford, being the owner of all the property in the neighborhood of the Rritisli Museum, for the protection of his other property took covenants from the purchasers and les- sees of any part of this property restricting them from building otherwise than in a particular way. But he afterwards himself built upon a large part of the property, which was originally intended not to be built upon, and, having so built, he asked the court of equity to restrain persons from building contrary to their covenants. But the court refused to grant an injunction, on ' Coudcrt V. Say re, 46 N. J. Eq. 386, " Peek i;. Matthews, L. R. 3 Eq. 515. 399, 19 Atl. Kep. 190, per Van Fleet, See Child y. Douglas, Kay, 560, 572. V. C. « Peek v. Matthews, L. R. 3 Eq. 515. 2 Roper V. Williams, Turn. & R. 18, 22, a case of landlord and tenant. 659 §§ 805, 806.] RESTRICTIONS AS TO THE USE OE LAND. the gvouiul tluit the gnuitor had so altered I he property since requiriiii;- these covenants, by building houses contrary to the provisions of the covenants, that it would be inequitable to give him the benefit of covenants which he himself had treated as absolutely void. He was left to his i-emedy at law.' 805. It may be shown that a covenant has become obso- lete and inoperative by reason of non-observance and ac- quiescence by the covenantee entitled to enforce it.^ He will not lose his rights, however, unless the breach is patent and has -continued for a considerable time. A delay to bring action for a lew months will not ordinarily bar one of his rights.^ But acquiescence in a breach of the restrictive covenant is not shown by failure to take proceedings against the first purchaser who has built upon his land in violation of the restriction.^ Tlie extent of the breach is to be considered in determining whether there has been an acquiescence which will bar a cove- nantee.^ Breaches that are immaterial in extent, though com- mitted by the covenantor himself, will not bar him from enforcing the covenant.^ 806. A person entitled to the benefit of restrictions may enforce one of them and not another, or may enforce them against one violator and not against another. Where a restric- tion has been imposed upon several lots of land, the fact that it is violated by the owners of some of the lots is no defence in favor of any one violator agt^inst his immediate neighbor who has ob- served the covenant, and who objects to his manner of breaking it. Thus, where the restriction was for the purpose of protect- 1 Bedford v. British Museum, 2 Myl. E. Rep. 905 ; Page v. Murray, 46 N. J. & K. 552. See, also, Sayers v. Collyer, 24 Eq. 325, 19 Atl. Rep. 11. Ch. D. 180. 3 Mitchell v. Steward, L. R. 1 Eq. 541 ; 2 Bedford v. British Museum, 2 Myl. Coles v. Sims, 5 De G., M. & G. 1. & K. 552; Sayers v. Collyer, 24 Ch. D. * Child v. Douglas, Kay, 560; Lloyd 180, 28 Ch. D. 103, where there had v. London, &c. Ry. Co. 2 De G., J. & S. been a patent and continuous hreach for 578; German v. Chapman, 7 Ch. D. 271 ; three years before action brought; Rev- Jackson v. Winnifrith, 47 L. T. 243. nolds V. Cleary, 61 Hun, 590, 16 N. Y. ^ Bedford v. British Museum, 2 Myl. ^upp. 421; Trustees v. Thacher, 87 N. & K. 552; Kemp v. Sober, 1 Sim. N. R. Y. 311, 41 Am. Rep. 365; Wetmore v. 517; Roper v. Williams, T. & R. 18; Bruce, 118 N. Y. 319, 23 N. E. Rep. 303 ; Richards v. Revitt, 7 Ch. D. 224. And Shriver v. Shriver, 86 N. Y. 575, 584, 585; see Lloyd v. London, &c. Ry. Co. 2 De Aldrich v. Bailey, 8 N. Y. Supp. 435 ; G., J. & S. 580. rieming v. Burnham, 100 N. Y. 1, 2 N. s Western v. Macdermot, L. R. 2 Ch. 72. 660 WAIVER AND RELEASE OF RESTRICTIONS. [§ 807. ing and preserving the neighborhood for residences, a purcliaser of a lot who is using it as a residence and has never violated the agreement himself, or consented to, or authorized or encouraged its violation by others, in order to have tlie benefit of the agree- ment is not obliged to sue all its violators at once. He may proceed against them seriatim^ or he may take no notice of tlie viohitions of the agreement by business carried on remotely from his residence, and enforce it against a business specially offensive to him b}' its proximity.^ In an action by a grantor to restrain a grantee from using the property for a saloon or for the sale of intoxicating liquors, under a parol agreement, which was a part of the consideration for the grant, that no part of the premises should be used for such pur- poses, the fact that the grantor had permitted a druggist who occupied a store on the premises, and had a package license, to sell intoxicants in packages, but not to be drunk on the premises, would not prevent the grantor from obtaining relief.^ 807. The original owner who imposed restrictions for the benefit of subsequent purchasers cannot release them as against purchasers of lots entitled to the advantages of the re- strictions.3 Thus, whei'e a conveyance to a land company of a tract of land to be divided and sold for building purposes provided that no land should be sold or leased by the company without a pledge from the grantee or lessee that the design of the buildings to be erected should be approved by the directors, it was held that the restriction was for the benefit of all who might become grantees of the company, even iifter the company had subse- quently obtained a release of the restrictions as to a lot reserved by the grantor. But a condition in the conveyance that no land should be conveyed without a pledge by the grantee " to build speedily " is for the benefit of the grantor and the company only ; and when the grantor subsequently releases such condition as to 1 Rowliiiul r. Mill(!r, 139 N. Y. 03, 34 ^ Western v. Macdermot, L. K. 1 Eq. N. E. Rep. 765, jjer Earl, J. ; Payson v. 499 ; Condert r. Sayie, 46 N. J. Eq. 386, Burrihani, 141 Mass. 547, 6 N. E. Hep. 19 All. Rep. 190. "One person is with- 708; Jackson v. Stevenson, 156 Mass. out the least power or capacity, in the ab- 496, 31 N. E. Rep. 691, 32 Am. St. Rep. sence of a dele}.falion of power, to release 476. or clKin^e the ri};ht.'< of another in laud." - Hull V. Solomon, 61 Conn. 76, 23 All. Per Van Fleet, V. C. Rep. 876. 661 §§ 808, 809.] KKSTRICTIOXS AS TO THE USE OF LAND. the lot lescrvod by liini, the company could extend to purchasers the time for building.' 808. A restriction imposed alike upon all the lots of a block or tract of land cannot be released to one purchaser or his grantee without the assent of the other purchasers, or their grantees, for whose benefit it was imposed. It can be released only by the assent of all the purchasers or owners of lots for whose benefit it was imposed.^ A part of the abuttors upon a common passageway cannot release an infringi^ment of a stipulation, the legal effect of which was to provide for a passageway to be kept open to the sky.^ Doubtless such an infringement might be released by a release executed by all the persons entitled to the use of the passageway, but it might be a question whether the rights of the jDublic, in a passageway opening at both ends into public streets and intended for general and public use, could be ignored.* 809. Where a restriction provides that changes may be made with " the consent in writing of the grantor, his heirs or assigns,"' the consent required is that of the grantor or his suc- cessors in title while he or they remain owners of the original estate or any considerable part of it, and the consent of all pur- chasers and lessees of the grantor is not required. The estate in this case was a large one, called the Branksome Estate. At the time of the conveyance in which this restriction was made, a considerable part of the estate had been conveyed and built over. It was not contended that the word " assigns " referred to prior purchasers. " It is said, however, that any subsequent lessee or purchaser of a plot is an assign, within the meaning of the term as used in the covenant, and that his consent in writing is neces- sary'. But it would be very curious if this were so, — that the consent of every subsequent lessee or purchaser of a plot would have to be obtained, though the previous lessees or purchasers of plots need not be consulted at all." ^ 1 Peal)ody Heights Co. y.Willson (M(l.), * Attorney-General v. Williams, 140 32 Atl. Kep. 386. Mass. 329, 2 N. E. Rep. 80, 3 N. E. Rep. 2 Hopkins v. Smith, 102 Mass. 444, 38 214, .54 Am. Rep. 468. N. E. Rep. 1122. ■' Everett v. Remington, 3 Ch. [1892] ^ Hopkins i;. Smith, 162 Ma.ss. 444, 38 148, 159. "Cases of difficulty," said N. E. Rep. 1122 ; Rice v. Boston & W R. Romer, .1., "were suggested on behalf of Co. 12 Allen, 141 ; Trask v. Wheeler, 7 Al- the plaintiff, — as, for instance, whose con- len, 109 ; Guild f. Richard.s, 16 Gray, 309. sent would be necessary if the Durrant G62 WAIVER AND RELEASE OF RESTRICTIONS. [§§ 810, 811. 810. A covenant may be discharged through the taking of the land for a public use by right of eminent domain. Thus, Avhere a railway company, under its compulsory powers, took land which was subject to a covenant not to build thereon, and built a station upon it, it was held that the covenantor was dis- charged from his covenant by the act of Parliament which com- pelled him to part with his land, and so deprived him of his power to perform the covenant. It was immaterial whether the railway company was compelled to build its station upon the land, or was only empowered to do so.^ 811. There may be such a change in the condition of adja- cent property and the character of its use that a court of equity will not enforce a restriction of its use for dwelling- houses only and prohibiting ever}' kind of trade or business. Thus, where, after the restriction was imposed, it appeared that an ele- vated railroad was constructed through the street in which the re- stricted land was situate, that a station of such railroad covered a portion of the street, its platform occupied half the width of the sidewalk in front of defendant's premises, and from it persons could look directly into the windows, and that this, with the noise of the trains, rendered privacy and quiet impossible, so that large depreciations in rents and frequent vacancies followed the construction of said road, — it was held that, a contingency having happened not within the contemplation of the parties, which imposed upon the property a condition frustrating the scheme devised by tliem, and defeating the object of the covenant, thus rendering its enforcement oppressive and inequitable, a court of equity would not decree such enforcement.^ *• It is true," say the court, "the covenant is without exception or limitation, but I think this contingency which has happened was not within the contemplation of the parties. The road was authorized by the f;iinily Iiad cDiivcyed away the larger por- leased or suld l)y the family in coinpara- tiuii of the estate to one jierson, or had tively small plots. It follows that the conveyed away in plots all the estate ; but action must i)e dismissed, and, as it wholly I need not now settle these puzzles (which fails, I must dismiss it witli costs." would probably have to be decided by eon- ' Baily v. De CresjULmy, L. R. 4 Q. B. sideiing who, if any one, could be re- 180. gardfd as substantially the owner of the - Trustees v. Thaelier, 87 N. Y. 311, Branksome estate), for, undoubtedly, at 320,41 Am. Hep. 365, reversing 46 N. Y. present the Durraiit family still retain Sup. Ct. 305, 14 Jones & S. 305. See, the estate, portions of it only being built al.so, Page v. Murray, 46 N. J. Eq. 325, over, and those portions having been only 19 Atl. Hep. 11. 663 § 812.] RESTRICTIONS AS TO THE USE OF LAND. legislature, and by reason of it tliere has been imposed upon the property a contlitioii of things which frustrates the scheme de- vised by the parties, and deprives the property of the benefit which might otherwise accrue fiom its observance. This new condition has already affected, in various ways and degrees, the uses of property in its neighborhood and property values. It has made the defendant's property unsuitable for the use to which, by the covenant of the grantor, it was appropriated, and if, in face of its enactment and the contiugencies flowing from it, the covenant can stand anywhere, it surely cannot in a court of equity." 812. But a breach of a restriction by one purchaser must be such as to substantially defeat the object of the general scheme, in order to make consent to the breach, or acquiescence in it, amount to a release of the restriction as against other pur- chasers. Thus, where a tract of land was laid out for building purposes, and lots were sold with the restriction that no house or building should be used or occupied otherwise than as a pi-ivate residence, and the vendor gave permission to one of the pur- chasers in a remote part of the tract to open a school in his house, it was held that the vendor did not thereby waive the restriction as to another purchaser whose house was at some distance from the school.^ In delivering judgment James, L. J., said : " If there is a general scheme for the benefit of a great number of persons, and then, either by permission or acquiescence, or by a long chain of things, the property has been either entirely or so substantially changed as that the whole character of the place or neighbor- hood has been altered so that the whole object for whicii the covenant was originally entered into must be considered to be at an end, then the covenantee is not allowed to come into the court for the purpose merely of harassing and annoying some particular man where the court could see he was not doing it bona fide for the purpose of effecting the object for which the covenant was originally entei^ed into. That is very different from the case we have before us, where the plaintiff says that in one particular spot far away from this place, and not interfering at all with the general scheme, he has, under particular circumstances, allowed a waiver of the covenant. I think it would be a monstrous thing 1 German v. Chapman, 7 Ch. I). 271, 277, 279. And see Macher v. Foundling Hosp. 1 Ves. & B. 1 88. 664 WAIVER AND RELEASE OF RESTRICTIONS. [§ 813. to say that nobody could do an act of kindness, or that any ven- dor of an estate who had taken covenants of this kind from several persons could not do an act of kindness, or, from any motive whatever, relax in any single instance any of these cove- nants, without destroying the whole effect of tlie stipulations which other people had entered into with him." 813. If the purpose for which restrictions were imposed can no longer be accomplished, equity will not enjoin their violation. Thus, if the purpose of restrictions was to make and preserve the locality for residences only, and the condition of the locality has greatly changed through the growth of the city, and that part of the city has come to be used chiefly for business purposes instead of residences, and it would be impossible to restore the residential character of the neighborhood by the en- forcement of the restrictions upon the land to which they apply, it would be inequitable and oppressive to give effect to the restric- tions.i In such case a court of equity will not enforce the restric- tions, but will leave the parties to their remedy at law. The principle of the British Museum Case was applied in a case involving similar covenants for the protection of the neigh- borhood as residential property. There was evidence that the phiintiff had acquiesced for a long time in violations of these covenants, so that the character of the property had so changed that the original purpose of keeping it for residences only had failed, and the court refused to grant an injunction to restrain further violations of the covenants. In giving judgment Pearson, J., said : " Does the covenant exist now for the purposes for which it was originally entered into ? Shall I be doing justice or injustice if I grant the injunction asked for? Shall I be enfor- cing the covenant in order to keep the property in the state in which it was intended to be kept when these stipulations were first made, or shall I be only stopping the use of one house as a shop with no chance whatever (except by a series of actions which may succeed or which may fail) of restoring the property to that which it was originally intended to be, — a residential 1 Bc.lfnrd r. British :Museum, 2 Myl. Murrny, 46 N. J. Eq. 325, 19 Afl. Rep. & K. 552, ]ut also the benefits intermixed with it."" ^ 817. Joinder of parties to suit. — It is not necessary that the plaintiff should join as parties defendant all persons who have violated the same restrictions ; ^ nor is it necessary that he should join with himself as parties all other persons entitled to the bene- fit of the covenant, or undertake to prosecute the suit in their behalf.3 818. A restriction imposed to preserve the grantor's other land for residences will be enforced only for the purpose for ■which it was made. Thus, a provision that no oil-well should be drilled in the land conveyed will be enforced by injunction ; but the grantee will not be held to an accounting for the oil already pumped, when it appears that this restriction was not to 1 Toledo, St. L. &c. K. Co. v. Cosand, 6 milly, M. R., said : " I am of opinion that Ind. App. 222, 33 N. E. Kep. 251 ; Laive one alone is entitled to ask for redress Erie & W. R. Co v. Priest, 131 Ind. 413, although others .should decline to do so, 31 N. E. Rep. 77 ; Scott v. Stetlcr, 128 or should disre<,'ard the act complained Ind. 38.% 27 N. E. Rep. 721 ; Midland of It may also well be that the injury Rv. Co. V. Fisher, I2.'j Ind. 19, 24 N. K. is principally, or almost entirely, felt by Rep. 7.56. oi"i 01" two of the owners, and that those - Linzce v. Mi.xer, 101 Mass. 512,531 ; who are further off sustain no ineon- Piiyson V. Burnham, 141 Mass. .547, 556, venience, in which case they could not be 6 N. E. Rep. 708. required to join in or support the applica- ■5 Western v, Macdermot, L. R. 1 Eq. tion." 499, 509, affirmed 2 Ch. App. 72. Ko- 669 §§ 819-821.] RESTRICTIONS AS TO THE USE OF LAND. prevent the drainage of his remaining lands, but to preserve other land for rosidence purposes.^ 819. A stipulation for keeping open a common passageway may be enforced in equity by the grantor, or by abutters who are entitled to use it, although the grantor reserved to himself the riglit to enter upon the premises by his agents, and at the expense of the party in fault, to remove or alter, in conformity with the stipulation, any building or portion thereof which might be erected on the premises in a manner or to a use contrary to the stipula- tion.- 820. A mandatory injunction will not be issued where complainant's rights are not clear.'^ Whether a restriction in the deed prohibiting the construction on the granted premises of any manufactory, workshop, etc., or " building of any kind to be used for any purpose other than one used for a genteel cottage or dwelling-house," is violated by the erection of a boat-house, club- house, and another building used merely for repairing the boats belonging to the club, and occasionally the construction of a new one, is a question not so clear as to warrant a court of equity in granting a mandatory injunction for the removal of the buildings, but complainants will be remitted to their remedy at law.* 821. Equity has jurisdiction of the enforcement of restric- tions, for restrictions are negative covenants or agreements not to do certain acts ; and a threatened violation may he restrained by injunction, or, after the forbidden act has been done, a man- datory injunction maybe issued to undo it. "Equit3'will not decree specific performance of affirmative contracts that call for the exercise of skill, discretion, or good faith ; but when the re- quired acts are of a simple nature, it seems that the court will take jurisdiction. It has enforced contracts to keep in repair the stop-gate of a canal,'' to construct an archway,*"' to lay a railway track over certain land,' and to maintain a switch."^ 1 Acheson r. Stevenson, 146 Pa. St. * Gatzmer v. St. Vincent School See. 228, 23 Atl. Rep. 331. See, also, Bangs 147 Pa. St. 313, 23 Atl. Eep. 452. V. Potter, 13.') Mass. 245. ^ Lane v. Newdigatc, 10 Ves. 192. 2 Attorncy-GcntTal v. Williams, 140 « Storcr v. G. W. Hy. Co. 2 Y. & C. C. Mass. 329, 2 N. E. Rep. 80, 3 N. E. Rep. 48. 214, .54 Am. Rep. 468. ^ Wilson v. Fiirness Ry. Co. L. R, 9 •'' Delaware, L. & W. R. Co. v. Central Eq. 28. S. Y. Co. 45 N. J. Eq. 50, 17 Atl. Rep. « Lydick v. B. & O. R. Co. 17 W. Va. 146; Mayer's Appeal, 73 Pa. St. 164. 427. "In Cooke v. Chilcott, 3 Ch. D. 670 ENFORCEMENT OF RESTRICTIONS. [§§ 822, 823. 822. A court of equity ■will not enforce restrictions where there are circumstances that render their enforcement inequi- table, altliough it clearly appears that there has been such a vio- lation of them as would ordinarily induce the court to interfere. "• If, for instance, it was shown that one or two owners of estates were insisting on the observance of restrictions and limitations contrary to the interest and wishes of a large number of proprie- tors having similar rights and interests, by which great pecuniary loss would be inflicted on them, or a public improvement be pre- vented, a court of equity might well hesitate to use its powers to enforce a specific performance, or restrain a breach of the restric- tion." ^ 823. The violation of a restriction may be enjoined with- out showing actual damage.- *• I take it now to be the law," says Yice-Chancellor Hall, "that if a covenant of this character is entered into with reference to the position of buildings upon a particular plot of ground as part of a scheme for building upon property, then the party who stipulates for and obtains that cove- nant does so free from being embarl*assed by the question whether any, and, if any, what injury or damage is consequent on the breach of the covenant, and that an assign of the benefit of the covenant is in as good a position as the original covenantee."^ 694, a covenant to supply adjacent land with water was enforced although it ne- cessitated laying pipes and erecting ma- chinery. This undoubtedly goes too far, £nd has since been overruled." Charles I. Giddings on Restrictions Upon the Use of Land, 5 Harv. L. Rev. 279. See, as to enforcement of affirmative covenants, 2 Story Eq. Jur. 44, 45. 1 Parker v. Nightingale, 6 Allen, 341, 349, per Bigelow, C. J. 2 Collins V. Castle, 36 Ch. D. 243 ; Ger- man V. Chapman, 7 Ch. D. 271 ; Dicken- son V. Grand June. Canal Co. 15 Beav. 260 ; Richards v. Revitt, 7 Ch. D. 224 ; Manners v. Johnson, 1 Ch. D. 673; T\\>- ping V. Eckersley, 2 Kay & J. 264, 270; Leech v. Schweder, 9 Ch. Ajip. 463, 465; Peck V. ("Conway, 119 Mass. 546 ; Hall v. Wesster, 7 Mo. A])]). 56. " Manners v. Johnson, 1 Ch. D. 673, 679, citing Kemp v- Sober, 1 Sim. N. S. 517; Tipping v. Eckersley, 2 K. & J. 264, 270 ; Dickinson v. Grand June. Canal Co. 15 Beav. 260 ; Leech r. Schweder, 9 Ch. D. 463. See Johnstone v. Hall, 2 Kay & J. 420, where relief was refused to a reversioner and the damage to his inter- est was remote and trivial. The cases cited in this section sul)stan- tially overrule Western v. Macdcrmot, L. R. 1 Eq. 499, where Romilly, M. R.,said that a court of equity would not interfere by injunction unless it were shown that substantial injury would result from the breach of the covenant. " I use the wonls ' substantial injury ' because it is, I think, clear that a mere nominal breach of cove- nant, which inflicted no injury at all, would not justify this court in interfer- ing; but the court would in that case leave the parties to their remedy at law to olitain such compensation as they might be entitled to." Upon the appeal of this 671 § 824.] RESTRICTIONS AS TO THE USE OF LAND. A comphiinant who is entitled to a perpetual injunction against the breach of restriction cannot be compelled to accept damages in lieu of an injunction. A person cannot be compelled to sub- mit to a wrong and an injury to his ])ro})erty at a price to be fixed by a court of equity.^ The question of the character and degree of annoyance caused by the breach of a covenant will not be considered in granting an injunction to restrain a breach of the covenant not to use the property for certain purposes. It is not competent to inquire into the reasonableness of the condition which totally prohibits a par- ticular use of the property. There is no question of degrees of violation in such case. Such a question arises, however, where the condition is merely against nuisances, or noxious or annoying trades.^ 824. In an action to recover damages by one lot-owner against another for a breach of a restriction imposed upon all the lots, evidence of the damage caused by such breach should be given in order to entitle the plaintiff to recover. Without such evidence it is error to charge that plaintiff was entitled to recover as damages the difference in value of the land as it was affected by the breach of the restriction and the value it would have pos- sessed if the restriction had been observed.'^ For a breach of a covenant by a purchaser to build houses on the land conveyed, the grantor cannot recover as damages the amount required to carry on his building operations upon his re- maining land, on the theory that when the covenant was made the parties had in contemplation the benefits to accrue to the re- mainder of the grantor's lots by the building of houses on those case, Lord Chelmsford repudiated the to wait until ' substantial injury' (to use projiosicion that equity would not inter- the words of the Master of the Rolls) were fere unless the complainant has sustained sustained, that period might never arrive, or is likely to sustain actual damage. In althoufrh violations of the covenant might the case before the court, " the object of be continually occurring, and the owners the covenant was to prevent, for all future of the houses would never be in a situa- time, any obstruction to the view from the tion to invoke the interposition of this backs of the houses on the south side of court to prevent the breach of a covenant Brock Street by buildings or trees above intended solely for their benefit." 2 Ch. a certain height. Any building erected, App. 72, 75. or any tree permitted to grow above this i Krehl v. Burrell, 11 Ch. D. 146. height, would be a breach of the covenant ; - Hall r. Wesster, 7 Mo. App. 56. and yet the damage to any one of the ^ Amerman v. Deane, 15 N. Y. Supp. owners of the houses might be scarcely 327, reversing C N. Y. Supp. 542. appreciable. If, then, it were necessary 672 ENFORCEMENT OF RESTRICTIONS. [§ 824. sold to the grantee, and that, on account of the latter's breach, the grantor was unable to sell the houses erected by him in reli- ance upon the grantee's covenant.^ If a restriction expires by limitation before the determination of a suit to enjoin a violation of it, a decree should be rendered merely for damages for the violation of the restriction vehile it continued in force.^ 1 McConaghy v. Pembertoa, 168 Pa. 2 Langraaid v. Reed, 159 Mass. 409, 34 St. 121, 31 Atl. Rep. 996. N. E. Rep. 593. 673 CHAPTER XXIII. COVENANTS FOR TITLE. I. In general, 825-832. II. Implied covenants, 833-841. III. Covenants for seisin and right to convey, 842-851. IV. Covenant against incumbrances, 852-891. V. Covenant for warranty and quiet enjoyment, 892-927. VI. Covenants that run with the land, 928-942. VII. Measure of damages on covenant for seisin, 943-956. VIII. Measure of damages on covenants against incumbrances, 957-967. IX. Measure of damages on covenants of warranty, 968-989. X. After-acquired title of grantor, 990-999. I. In General. 825. A covenant is an agreement under seal.^ It may be made by a deed poll as well as by indenture.^ It may be created by any words which show the intention of the parties.^ Thus the word " agree " has the same effect as the word " covenant." The covenant itself need not be in the usual form, or in any par- ticular words. Whatever be the words used, the effect of the covenant is to be ascertained from the legal interpretation of the language in which it is expressed.^ A single promise expressed in a single sentence may be so comprehensive as to include all the usual covenants. 826. The covenants in modern deeds have their origin in the feudal ■warranty, which was an incident of the tenure by which the vassal held his lands of his lord. While the vassal was bound to render homage to his lord, the lord was bound to pro- tect his vassal in the enjoyment of his lands. If the title to the land was disputed and the lord failed to protect it, he was bound 1 Shep. Touch. 160 ; De Bolle v. Penn- sylvania Ins. Co. 4 Whart. 68, 33 Am. Dec. 38. 2 Green v. Home, 1 Salk. 197; Green- leaf V. Allen, 127 Macs. 248; Ilagerty v. Lee, 54 N. J. L. 580, 25 All. Rep. 319, 26 Atl. Rep. 537. 674 3 Kirkendall v. Mitchell, 3 McLean, 144 ; Hallett v. Wylie, 3 Johns. 44 ; Jack- son V. Swart, 20 Johns. 85 ; Bull v. Fol- lett, 5 Cow. 170 ; Taylor v. Preston, 79 Pa. St. 436 ; Kerngood v. Davis, 21 S. C. 183. ^ Johnson v. Hollensworth, 48 Mich. 140, 11 N. W. Rep. 843. IN GENERAL. [§ 827. to furnish other land of equal value. Originally there was no contract to this effect, but the right to this protection rested upon the feudal relation and custom. When transfers of land came to be authenticated by charters or deeds, a warranty was implied from the word dedi, and was expressed by the word warrantizo. " And no other verb in our law," says Coke, " doth make a war- ranty." Mr. Rawle, in his admirable work on Covenants for Title, sketches an outline of the ancient law of warranty, and of the origin of modern covenants for title, and in conclusion says : " So long as livery of seisin was necessary to the validity of "the transfer of land, so long did warranty, which was essentially a covenant real, accompany the deed of feoffment. A personal covenant would have been an inappropriate element of such a form of conveyance. But the passage of the Statute of Uses, toward the latter part of the reign of Henry the Eighth, intro- duced the conveyances familiar at the present day, which, tak- ing their effect under that statute, passed the freehold without livery of seisin ; and in a deed of bargain and sale, or lease and release, a warranty, in its proper sense, would have been just as inappropriate as would have been a personal covenant in a deed of feoffment, while the covenant was eminently fitting. And hence it may be that we find, all through the reports of the time of Elizabeth, cases in which some of the covenants for title generally, a covenant for seisin or of good right to convey ai-e used in conveyances taking effect by virtue of the Statute of Uses. They are, however, generally couched in the briefest terms, and unaccompanied by other covenants. And by com- mon consent it is considered that it was not until the time of the restoration of Charles the Second that the modern cove- nants for title were, in their present form, introduced into general practice." 827. The usual covenants in ordinary deeds in fee simple in this country are : I. That the grantor is lawfully seised ; II. That he has good right to convey; III. That the land is free from incumbrances ; IV. That the grantee shall quietly enjoy ; V. That the grantor will warrant and defend the title against all lawful claims. 1 Tlie covenant for quiet enjoyment is now chiefly confined to leases ; and the covenant for further assurance, though sometimes of importance, is not in use in the common forms of ^ 4 KeiJt Com. 471. 675 §§ 828, 829.] COVENANTS FOR TITLE. deeds. The covenants for seisin, against incumbrances, and of warranty are therefore practically the usual covenants. 828. An agreement to convey land requires in most of the States a conveyance with the usual covenants for title,^ though, in a few States at least, a contract to convey a good title is satisfied by a conveyance of such a title by a quitclaim deed.^ '•'•If a grantor has in fact a good title, his deed of quitclaim con- veys his title and estate as effectually as a deed of warranty. An agreement or covenant to convey a title, therefore, does not necessarily entitle the covenantee to a warranty deed ; the right of property and of exclusive possession, which constitutes a good title, being effectually vested in him by a deed of quit- claim." ^ 829. An agreement to convey by a good and sufficient war- ranty deed requires a good and perfect title, as well as a gijod and sufficient warranty deed."^ A contract to convey "by deed in fee simple and free from all incumbrances " is not fulfilled by the delivery and acceptance of a deed with full covenants of war- 1 Alabama : Cullum v. Branch Bank, 4 Ala. 21. Arkansas: Riidd v. Savelli, 44 Ark. 14.5 ; Witter i'. Biscoe, 13 Ark. 422. California : Rogers u. Borchard, 82 Cal. 347, 22 Pac. Rep. 907. Illinois : Clark v. Lyons, 25 111. 105. Indiana: Bethell v. Bethell, 92 Ind. 318 ; Gibson v. Richart, 83 Ind. 313 ; Linn v. Barkey, 7 Ind. 69 ; Clark V. Redman, 1 Blackf. 379. Iowa : Shreck v. Pierce, 3 Iowa, 350. Kentucky : Andrews v. Word, 17 B, Mon. 518 ; Hedges V. Kerr, 4 B. Mon. 526. Maryland : Bry- ant V. Wilson, 71 Md. 440. Michigan: Dikeman v. Arnold, 71 Mich. 656; Allen V. Hazen, 26 Mich. 142; Dwight v. Cut- ler, 3 Mich. 566, 64 Am. Dec. 105 ; John- son V. Hollensworth, 48 Mich. 140, 11 N. W. Rep. 843 ; xMlen v. Atkinson, 21 Mich. 351. Minnesota: Johnston i\ Piper, 4 Minn. 192. Missouri: Ilerryford u. Tur- ner, 67 Mo. 296. North Carolina : Fair- cloth V. Isler, 75 N. C. 551. Ohio : Tre- main v. Liming, Wright, 644. Rhode Island : Point Street Iron Works v. Sim- mons, 11 R. I. 496. Texas : T:iul v. Brad- ford, 20 Tex. 261 ; Rhode v. Alley, 27 Tex. 443. Vermont : Bowen v. Thrall, 28 Vt. 382. Virginia : Hoback v. Kilgore, 26 676 Gratt. 442, 21 Am. Rep. 317; Goddin v. Vaughn, 14 Gratt. 102, 117; Dickinson V. Hoomes, 8 Gratt. 353, 394. West Vir- ginia: Tavenner v. Barrett, 21 W. Va. 656 ; Allen v. Yeater, 17 W. Va. 128. - Connecticut : Potter v. Tuttle, 22 Conn. 512; Dodd v. Seymour, 21 Conn. 476. Maine : Hill v. Hobart, 16 Me. 164. Massachusetts: Kyle v. Kavanagh, 103 Mass. 356, 359, 4 Am. Rep. 560; Mans- field V. Dyer, 131 Mass. 200, 201. New York: Gazley v. Price, 16 Johns. 267; Ketchum v. Evcrtson, 13 Johns. 359; Van Eps t>. Schenectady, 12 Johns. 436. Penn- sylvania : Cadwalader v. Tryon, 37 Pa. St. 318; Espy v. Anderson, 14 Pa. St. 308. ■' Kyle V. Kavanagh, 103 Mass. 356, per Morton, J. * Mead v. Fox, 6 Cush. 199, 202; Bur well v. Jackson, 9 N. Y. 535 ; Little V. Paddleford, 13 N. H. 167; Hill v. Ho- bart, 16 Me. 164; Carter v. Alexander, 71 Mo. 585; Wilson v. Getty, 57 Pa. St 266; Christian v. Cabell, 22 Gratt. 82; Davis V. Henderson, 17 Wis. 105 ; Varde> man v. Lawson, 17 Tex. 10, 16. IN GENERAL. [§§ 830-b32. raiity, when there is at the time an outstanding mortgage of the land.i 830. A person holding land in a fiduciary character can make good and sufficient conveyance without using the gen- eral covenants for title. It is sufficient that he covenants against his own acts ; ^ and a trustee's deed is, in some parts of the country, always made without any covenant at alL The persons beneficially interested under the trust may, however, properly be required to make covenants for title. The covenants of a pei'son executing a deed in a representative capacity do not bind the estate he represents.^ 831. A person executing a conveyance in a representative capacity, such as administrator, guardian, or trustee, with the covenants for title usual in other deeds, is personally bound by them, though he was under no obligation to make any of them, and had no authority to bind the estate he represented by such covenants.* Such is the case, also, where the covenants are implied from the use of the words " grant, bargain, and sell." ^ 832. An agent of a State who purchases land and conveys it to the State by warranty deed is bound by his warranty if the purchase by the State was not a mere ratification of the act of its agent, so as to thereby render the agent's covenant void for want of consideration. Such a covenant was held to be binding upon one who, being desirous of acquiring the contract for a wall around the state penitentiary, at tlie request of the officials bought land which they desired for penitentiary purposes, but which they were themselves unable to purchase lor the State, owing to their 1 Moody V. Spokane, &c. K. Co. 5 ner v. Williams, 8 Mass. 162, 5 Am. Dec. Wash. 699, 32 Pac. Kep. 751. S3; Heard v. Hall, 16 Pick. 468 ; Whiting 2 Dow V. Lewis, 4 Gray, 468, 473 ; Sum- v. Dewey, 15 Pick. 428; Donahoe v. ner v. Williams, 8 Mass. 201 ; Hodge.s v. Emery, 9 Mete. 63; Mitchell v. Huzen, 4 Saunders, 17 Pick. 470; Dwiuel I'. Veazie, Conn. 49.5, 10 Am. Dec. 169; Helden v. 36 Me. 509; Shontz v. Brown, 27 Pa. St. Seymour, 8 Coun. 19; Foster v. Young, 123, 134. 35 Iowa, 27 ; Bloom (;. Wolfe, 50 Iowa, 3 Sumner v. Williams, 8 Mass. 162; 280; Magee v. Mellon, 23 Miss. 585; Mason v. Ham, 36 Me. 573; Shontz v. Holyoke u. Clark, .54 N. H. 578 ; Graves Brown, 27 Pa. St. 134; Lockwood v. Gil- v. Maltindy, 6 Bush, 361 ; Barnett r. son, 12 Ohio St. 526 ; Klopp v. Moore, 6 Hnuhey, 54 Ark. 195, 15 S. W. Hep. 404 ; Kans. 27 ; Maliic v. Matteson, 17 Wis. I ; Miiri)hy v. Price, 48 Mo. 247 ; Taylor u. Osborne i-. McMillan, 5 .Tones L. 109; Harrison, 47 Tex. 454. Shacklett v. Hinuson, 54 Ga.3.50; Clark '' Foote v. Clark, 102 Mo. 394, 14 S. W. V. Whitehead, 47 Ga. 510. 521. Bcp. 981 ; Murphy ;;. Price, 48 Mo. 247 ; * Taylor i;. Davi.s, 110 U. S. 330 ; Sum- I'ratt v. Eaton, 65 Mo. 157. G77 § 833.] COVENANTS FOR TITLE. want of authority, on the promise by such officials to use their influence to induce the State to repurchase it, and was awarded the contract to erect the wall, and afterwards conveyed the land to the State, with covenants of warranty, for the same price he had paid for it.^ II. Implied Covenants. 833. There are implied covenants as -well as express. Ex- press covenants are those in which the intent to covenant is declared in words, and implied are those inferred by legal con- struction from the use of certain words of conveyance. It has sometimes been said that a covenant may be implied from a recital,^ but this doctrine has been declared by high authority to be a dangerous one, and it has been decisively repudiated.'^ A covenant other than for title may undoubtedly be implied from a recital, but not a covenant for title. A recital of seisin, when modified and explained by other parts of the instrument, does not amount to a covenant.* The true rule is to view the recital in the light cast on it by the rest of the deed, and give effect to the intention as a consistent whole.^ Where the terms of a deed of conveyance, taking the whole together, show that the instrument is in its essence a quitclaim title, and that the makers intended no warranty except as against themselves and their own acts, no covenant will be raised out of a recital of facts, or out of a use of words of conveyance.^ 1 Whatley v. Patten (Tex. Civ. App.), in equity. Dorsey v. Jackman, 1 Serg. & 31 S. W. Rep. 60. R. 42, 7 Am. Dec. 611 ; Earle v. De Witt, 2 Severn's Case, Leon. 122; Christine G Allen, 520; Soper v. Stevens, 14 Me. i;. Whitehill, 16 Serg. & R. 98, Gibson, C. 133; Bates v. Delavan, .5 Paige, 299. J., dissenting. And .see Commonwealth v. M'Clanachan, 8 Rawle, Cov. § 280 ; Ferguson i>. Dent, 4 Rand. 482. Equity will not relieve 8 Mo. 667. against i)ayment of the puichasemoney. * Delmer v. M'Cabe, 14 Ir. C. L. 377. 1 Fonbl. Eq. 373, note ; Rawle, Con. 5 McDonouijh v. Martin, 88 Ga. 675, § 321 ; Barkhamsted v. Case, 5 Conn. 16 S. E. Rep. .59, per Bleckly, C. J.; Piatt, 528, 13 Am. Dec. 92, 2 Sugd. Vend. 552. Cov. 3.3 ; Severn's Case, Leon. 122. Nor can the purchaser have rescission. *> McDonough I'. Martin, 88 Ga. 675, 16 Maney v. Porter, 3 Humph. 347, 363; S. E. Rep. 59. Bleckley, C. J., said : Middlekauff v. Barrick, 4 Gill, 290 ; But- " The law is clear that, where the buyer man v. Hussey, 30 Me. 263. Nor can he takes a quitclaim deed, — that is, a deed set up the failure of title in defence to an without any warranty, — the maxim of action for the ])urchase-money. Bnckner caveat emptor A^y'pWGS. He is without rem- v. Street, 15 Fed. Rep. 365; Wright v. edy if the title fails. He cannot recover Shorter, 56 Ga. 72." back the purchase-money, either at law or 678 IMPLIED COVENANTS. [§§ 834, 835. 834. At common law the only word that necessarily im- ported a covenant of title was the word "give."i The word "grant" did not imply a covenant, nor the words "bargain " and "sell." 2 But since the Statute of Uses there have been no cove- nants by implication. The deed of bargain and sale then came into use, and this is the deed in common use at the present time. Except as declared by statute, there are in this country no implied covenants.^ A covenant of seisin is not implied at common law from the use of the operative words, " grant, bargain, sell, convey, and warrant." * . 835, By statute in many States, certain words used in a deed of conveyance themselves import covenants for title as effectually as though such covenants had been expressly contained in the deed. These statutes have for their foundation the statute of Anne, passed in 1707.^ The first statute of this kind in this country was an act of the colony of Pennsylvania, passed in 1715. Similar acts have since been enacted in many of the States.^ They 1 Frost V. Raymond, 2 Caines, 188, 2 Am. Dec. 228. But this word does not raise a covenant in a conveyance merely of the grantor's rights in the land. Dea- kinsy. Hollis, 7 Gill & J. 311. 2 Piatt, Gov. 47, 48 ; Rickets v. Dickens, 1 Murph. 343, 4 Am. Dec. 555; Frost V. Raymond, 2 Caines, 188, 2 Am. Dec. 228 ; Wheeler v. Wayne Co. 132 111. 599, 24 N. E. Rep. 625 ; Gee v. Pharr, 5 Ala. 586, 39 Am. Dec. 339. 3 Allen V. S.iyward, 5 Me. 227, 17 Am. Dec. 221 ; Bates v. Foster, 59 Me. 157, 160, 8 Am. Rep. 406 ; Wheeler v. Wayne Co. 132 111. 599, 24 N. E. Rep. 625 ; Sum- ner V. Williams, 8 Mass. 1G2, 201 ; Dow V. Lewis, 4 Gray, 468, 473. * Frost V. Raymond, 2 Caines, 188, 2 Am. Dec. 228, where Chancellor Kent expressly repudiates, as opposed to the entire stream of authorities, a statement to the contrary by Lord Eldon in Brown- ing V. Wright, 2 Bos. & P. 13, 21 ; Aiken V. Franklin, 42 Minn. 91, 43 N. W. Rep. 839. 6 6 Anne, ch. 35. •5 Alabama: The words "grant, bar- gain, sell," or either of them, imply cove- nants of Kcisiu, against incumbrances by the grantor, and for quiet enjoyment. Code 1886, § 1839. Arizona T. : Words "grant or convey " import covenants of seisin and against incumbrances. R. S. 1887, §§ 222, 223. Arkansas : Words "grant, bargain, and sell" import cove- nants of seisin, against incumbrances by the grantor and for quiet enjoyment. Dig. of Stats. 1894, § 696. California. Idaho, Montana, Nevada, North Dakota and South Dakota, Texas; The word "grant" implies a covenant that tlie grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee ; and against incumbrances by the grantor. Cal. Civ. Code, § 1113; Ida. R. S. 1887, § 2935 ; Mont. Civ. Code, § 1519 ; Nev. G. S. 188.5, § 2618; North Dak. R. Codes 1895, § 3539 ; South Dak. Comp. Laws of Dakota 1887, §§ 3247, 3449; Tex. R. S. 1879, arts. 553, 557. Delaware: The words "grant, bargain, and sell " imply a special warranty against a grantor and his heirs. R. Code 1893, p. 625, § 2. Illinois : The words " grant, baigain, and 8eil"inii)ort covenants of seisin, against incumbrances by the grantor, and for quiet enjoyment against the grantor. R. S. p.-o § 835.] COVENANTS FOR TITLE. have for their object the raising of certain covenants by the use of the word " grant," or the words " grant, bargain, and sell," against the grantor, and in some cases against his heirs also, in favor of the grantee, his heirs and assigns.^ The Pennsylvania statute, from which the other statutes have generally been mod- elled, is in the words following : " In all deeds to be recorded in pursuance of this act, whereby any estate of inheritance in fee simple shall hereafter be limited to the grantee and his heirs, the words ' grant, bargain, sell ' shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit, that the grantor was seised of an indefeasible estate in fee simple, freed from incum- brance done or suffered from the grantor (excepting the rents and services due to the lord of the fee), as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed ; and that the grantee, his heirs, executors, administrators, and assigns, may in any action assign breaches, as if such covenants were expressly inserted." In several States all the usual covenants of warranty — namely, for seisin, good right to convey, against incumbrances, for quiet enjoyment, and warranty against all persons — are expressed by the use of the words " warrants " or " with warranty ; " ^ or by the use of the words " generally warrants," or " with general warranty." ^ In most of these same States a special warranty against the claims of the grantor, and of all persons claiming through him, is expressed by the use of the words " warrant specially," or " with special warranty." 1889, cb. 30, §8. Mississippi : The words grantor. Brightly's Purdon's Dig. 1894, "grant, bargain, and sell" import cove- p. 646, § 100. nants of seisin, against incumbrances by ^ Dun v. Dietrich, 3 N. D. 3, 53 N. W. the grantor, and quiet enjoyment against Eep. 81. the grantor. Annot. Code 1892, §2440. ^luinois: R. S. 1889, ch. 30, § 9. Missouri: The words "grant, bargain, and Indiana: R. S. 1888, § 2927. Kansas: sell" import covenants of seisin, against G. S. 1889, § 1110. Kentucky: G. S. incumbrances by the grantor, and for fur- 1894, § 493. Michigan: G. S. 1882, ther assurances. R. S. 1889, § 2402. § 5728. Mississippi: Annot. Code 1892, New Mexico T. : The words "bargained § 2480. Washington: Laws 1885-86, and sold " import covenants of seisin and p. 177. Wisconsin: Annot. Stats. 1889, against incumbrances by the grantor. §2208. Oklahoma T. : Comp. Stats. 1890, Comp. Laws 1884, § 2570. Pennsyl- §§1698,1697. Utah: Laws 1890, ch. 57, vania: The words " grant, bargain, and §6. sell " constitute express covenants of sei- ^ Maryland : Pub. G. L. 1888, art. 21, sin against incumbrances by the grantor, §§ 69-76. Virginia : Code 1887, §§ 2437- and for quiet enjoyment against the 2452. West Virginia : Code 1887, ch. 72, 680 12-19. IMPLIED COVENANTS. [§§ 836, 837. In several States it is expressly provided that no covenant shall be implied in any conveyance, whether it contains special cove- nants or not.^ 836. All the words specified by the statute must be used, unless the statute provides that the use of either of them shall be suflacient. Thus, under a statute creating a covenant from the use uf the words " grant, bargain, and sell," a covenant will be implied only when all the words of the statute are used, A covenant is not implied from the use of the word "grant" alone. 2 837. In these statutes the first covenant mentioned, the covenant of seisin, which standing by itself is unlimited, is held to be limited to the acts of the grantor, by reason of the limitation to that effect in the subsequent covenant against incumbrances, so that none of the covenants implied extend beyond the acts of the covenantor.-^ Under a statute whereby the words " grant, bargain, and sell " are declared to import an express covenant that the grantor is seised of an estate in fee simple, freed from incumbrances done or suffered from the grantor, as also for quiet enjoyment against the grantor, his heirs and assigns, no general covenant against incum- brances and for quiet enjoyment is created, but only a covenant against acts done or suffered by the grantor and his heirs.'* It is held in Texas, however, that under a statute which pro- vides that the usual covenants shall be implied in a deed from the use of the word "grant," the force of the word, as a warranty against a prior incumbrance by the grantor, is not taken away by the use of the words " release and quitclaim " in the conclud- ing clause of the deed, and the restriction of the warranty to ^ Michigan : G. S. 1882, § 5655. Min- ute, when perhaps it was never thoujrht of nesota: G. S. 1894, eh. 40, § 4165. New by either party." Per Wilkin, J. ; Frank York: 4 K. S. 1889, p. 2452. Oregon: v. Darst, 14 III. 304. Sec, also, White- Annot. Laws 1887, § 3003. Wisconsin: hill v. Gotwalt, 3 Pen. & W. 313, 323. Annot. Stats. 1889, § 2206. " Gratz v. Ewalt, 2 Binn. 95 ; Funk v. 2 Gee u. Pharr, 5 Ala. 586, 39 Am. Dec. Voneida, 11 S. & R. 109; Seitzinger v. 339 ; Wheeler v. Wayne Co. 132 111. 599, Weaver, 1 Rawie, 377 ; Roebuck v. Diipuy, 24 N. E. Rep. 625. "If one of these 2 Ala. 535 ; Stewart y. Anderson, 10 Ala. words may be dispensed with in the crea- 504 ; Brodie v. Watkins, 31 Ark. 319; tion of the covenants named in the act, so Winston v. Vaiighan, 22 Ark. 72. might others; and the introduction of * Ileflin v. Phillips (Ala.), 11 So. Rep. either of them into a deed mijrht be made 729; Griffin v. Reynolds, 17 Ala. 198; to operate as a covenant under the stat- Roebuck v. Duprey, 2 Ala. 535. 681 §§ 838-840.] COVENANTS FOR TITLE. flaiins through oi" under the grantor, " Subsequent words in a deed should be very exphcit to have the eliect of withdrawing from the scope of the grantmg clause an incumbrance of the grantor's own creation." ^ 838. Covenants created by statute from the use of certain words in a deed are strictly construed if the statute is in dero- gation of the common law.^ Under a statute providing that the words " grant, bargain, sell " in a deed shall operate as an express covenant that the grantor was seised of " an estate," there is no implied covenant that he was seised in fee, though the habendum is, to have and to hold " in fee simple,"^ or " to have and to hold the said land . . . for- ever as a good and indefeasible estate in fee simple."^ A statutory warranty implied from the use of certain words may be limited to a part of the lands conveyed by a subsequent clause declaring that the grantor's intention is to convey all his right, title, and interest in a part of the lands particularly desig- nated.'^ 839. A statutory covenant is not implied when a general covenant of warranty is inserted in a deed.*' " The covenants raised by law from the use of particular words are only intended to be operative where the parties themselves have omitted to insert covenants. But where the party declares how far he will be bound to warranty, that is the extent of his covenant." '' 840. A special covenant controls a general covenant, whether express or implied, on the same subject, where the two are inconsistent ; ^ but a special covenant does not restrict the scope of the general covenants any farther than the special clause is in conflict or covers the same ground. Thus a special covenant " against all taxes against us, or against our own acts in the premises," in a deed expressing or implying all the usual 1 Tarish y. White, 5 Tex. Civ. App. 71, ^ Douglass v. Lewi.s, 1.31 U. S. 75, 9 24 S. W. Rep. 572. Sup. Ct. Rep. 63-t ; Leckly v. Enos, 6 2 Douglass V. Lewis, 1.31 U. S. 75, 9 S. Wash. 247, 33 Tac. Rep. 508, 34 Pac. Ct. Rep. 634 ; Gratz y. Ewalt, 2 Binn. 95 ; Rep. 665 ; Fialey ;'. Steele, 23 111. 56; Finley v. Steele, 23 III. 56. Weems v. McCaughati, 7 Sm. & M. 422, 2 Cunningham v. Dillard, 71 Mis.s. 61, 45 Am. Dec. 314. 13 So. Rep. 882. ' Weems v. McCaughan, 7 Sm. & M. * Wheeler v. Wayne Co. 132 111. 599, 24 422, 427, 45 Am. Dec. 314. N. W. Rep. 625. ** Alexander v. Schreiber, 10 Mo. 460; 5 Kyle i;. McKenzie, 94 Ala. 236, 10 Shelton ;;. Pease, 10 Mo. 473, 482 ; Collier So. Rep. 654. v. Gnmble, 10 Mo. 467. 682 IMPLIED COVENANTS. [§ 841. covenants for title, limits the general covenants against incum- brances and for quiet enjoyment, but not the general covenant of seisin.i The different covenants will be construed together and harmonized, if this can reasonably be done.^ Covenants of seisin and for quiet enjoyment, created by statute from the use of certain words in a deed, are operative to their full extent only when the parties have failed to insert covenants in these respects in the deed, and may be controlled and limited in their operation by express covenants in that regard.^ Accord- ingly, where a deed contains statutory words which imply a cove- nant that the grantor " is seised of an indefeasible estate in fee simple," which is a covenant for a perfect title, and this is coupled in the deed with an express covenant that the land is free from incumbrances " made or suffered to be made by the grantor, or by any person claiming the same under him," the statutory covenant and the express covenant are incongruous and repugnant, and the express covenant must prevail.* 841. An implied covenant against incumbrances raised by the use of the word " grant " is restrained by an express covenant against incumbrances limited by its terms to the heirs, executors, and administrators of the grantor, unto the grantee, his heirs and assigns. "Under the rule that covenants should be construed most strongly against the covenantor, courts have generally given effect to these implied covenants, even in cases where tliere were limited express covenants, where the two were not inconsistent or were independent of each other, limiting the implied covenant against incumbrances to the personal act or sufferance of the grantor." ^ But implied covenants do not arise when they are inconsistent 1 Jarkson v. Green, 112 Ind. 341, 14 Weems c. McCaiighau, 7 Sni. & M. 422, N. E. l?ep. 89; Rowc v. Heath, 23 Tex. 45 Am. Dec. 314. 614; James v. Adams, 64 Tex. 193; * Douglass v. Lewis, 131 U. S. 75, 9 S. Tracy v. Greffet, 54 Mo. App. 562 ; Ct. Kcp. 634. Brown V. Tomlinson, 2 Greene (Iowa), 6 Diin v. Dietrich, 3 N. D. 3, .53 N. W. 525. llcp. 81, per Bnrtholomew, J., citing 2 James v. Adams, 64 Tex. 193, 198. Gratz v. Kwalt, 2 Binn. 95 ; Seitzinger v. 8 Douglfiss r. Lewis, 131 U. S. 75, 9 S. Weaver, 1 Rawle, 377 ; Funk v. Voncida, Ct. Rep. 6.34; Gratz '-.Ewalt, 2 Binn. 95; II Serg. & R. 109, 14 Am. Dec. 617; Stewart v. Anderson, 10 Ala. 504; Win- Shaffer v. Greer, 87 Pa. St. 370; Finlcy ston r. Vaughan, 22 Ark. 72, 76 Am. v. Steele, 23 111. 56 ; Alexander v. Sclirei- Dec. 418; Finley v. Steele, 23 111. 56; her, 10 Mo. 460; Shelton v. Pease, 10 Mo. 473. 683 § 842.] COVENANTS FOR TITLE. with the express covenants, or when it appears from the language used by tlie parties that it was not intended that any such cove- nimt as that implied by the statute should take effect.^ III. Covenants for Seisin and Right to Convey. 842. A covenant of seisin is defined to be " an assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey," and extends not only to the land itself, but also to whatever is properly appurtenant to and passes by the conveyance of the land.^ It is an assurance that the grantor has substantially the very estate, both in quan- tity and quality, which he professes to convey. It is broken if there is a material deficiency in the quantity of land called for by the deed. It is broken, also, if the grantor has not substantially the very estate he undertakes to convey. If he undertakes to convey the whole estate in fee absolutely, the covenant of seisin is of course bi'oken if he has no estate ; and it is broken if there is an outstanding estate in another, such as the estate of a life tenant.^ This covenant is in legal effect a covenant of title as well as a covenant of possession, and is broken unless the grantor's deed vests in the grantee an indefeasible estate in the land conveyed.^ The grantee need not prove an ouster or eviction ; it is sufficient to negative the covenant and prove that the grantor did not have title to the land at the time of the conveyance.^ The covenant of right to convey is practically synonymous with the covenant of seisin.^ 1 Douglass V. Lewis, 131 U. S. 75, 9 Johnston, 87 Ala. 220; Parker u. Brown, Sup. Ct. Rep. 634; Finley v. Steele, 23 15 N. II. 176; Mills v. Catlin, 22 Vt. 98 III. 56 ; Weems v. McCaughan, 7 Sm. Catlin v. Hurlhurt, .3 Vt. 403 ; Zent v. & M. 422, 45 Am. Dec. 314; Dun v. Picken, 54 Iowa, 535, 6 N. W. Rep. 750 Dietiich, 3 N. D. 3, 53 N. W. Rep. 81. Baker v. Hunt, 40 111. 264, 89 Am. Dec - Wetzel u. Richcreek (Ohio), 40 N. E. 346; M'Carty v. Lcf^Lrett, 3 Hill, 134 Rep. 1004 ; Real v. Hollister, 20 Neb. 112, Fitch v. Baldwin, 17 Johns. 161 ; Recohs 29 N. W. Rep. 189. r. Youn^love, 8 Box. 385; Trice v. Kay- 3 Moore v. Johnston, 87 Ala. 220, 6 So. ton, 84 Va. 217, 4 S. E. Rep. 377. Kep. 50. 5 Riekert v. Snyder, 9 Wend. 416. ■* Clapp V. Herdman, 25 111. App. 509 ; « Slater v. Rawson, 1 Met. 4.50 ; Ray. Fitzhugh V. Crotjhan, 2 J. J. Marsh. 429, mond v. Raymond, 10 Ciish. 134 ; Griffin 19 Am. Dec. 139; Resser v. Carney, 52 v. Fairbrother, 10 Me. 91 ; Rickert v. Minn. 397, 54 N. W. Rep. 89 ; Lockwood Snyder, 9 Wend. 416, 421 ; Brandt v. V. Sturdevant, fiConn. 373, 385 ; Comstock Foster, 5 Iowa, 287, 294. V. Comstock, 23 Conn. 349 ; Moore v. 684 COVENANTS FOR SEISIN AND RIGHT TO CONVEY. [§§ 843-845. 843. In Massachusetts, Maine, and Ohio the covenant of seisin does not require an indefeasible title in the grantor, but only possession under color of title. ^ " If, at the time be executed the deed, be had the exclusive possession of the prem- ises, claiming the same in fee simple by a title adverse to tbe owner, he was seised in fee, and had a right to convey." ^ 844. An easement which does not interfere with the tech- nical seisin of the purchaser does not constitute a breach of the covenant.3 The existence of a public easement in the land or other equitable incumbrance is not a breach of this covenant, provided it does not interfere with the technical seisin of the grantee. A public right of way, for instance, is not inconsistent with the vesting of the freehold in the purchaser.* The occupa- tion of the land by a railroad track under condemnation proceed- ings is only an easement, and cannot be relied upon as a breach of the covenant.^ The covenant is not broken by the existence of a subsequent written contract by the grantor to convey the land to another person ; and it cannot be shown in support of such contract that it was made in pursuance of a previous oral agreement.^ 845. A covenant of seisin in a warranty deed, wherein the grantor covenants " for his heirs, executors, and administra- tors," creates no liability on tbe part of the grantor for a breach of such covenant.^ 1 Maine : Montgomery v. Reed, 69 Me. 3 Ohio, 525 ; Backus v. McCoy, 3 Ohio, 510 ; Wilson v. Widenham, 51 Me. 566 ; 211, 17 Am. Dec. 585. Boothby v. Hathaway, 20 Me. 251 ; Bax- ^ Marston v. Hobbs, 2 Mass. 433, 439, ter V. Bnidbury, 20 Me. 260, 37 Am. Dec. 3 Am. Dec. 61, per Parsons, C. J. 49 ; Griffin v. Fairbrothcr, 10 Me. 91 ; ^ Blondcau v. Sheridan, 81 Mo. 545. Wheeler i;. Hatch, 12 Me. 389 ; Cushman *' Moore r. Johnston, 87 Ala. 220, 6 So. ?'. Blanchard, 2 Me. 266, 11 Am. Dec. 76. Rep. 50; Lamb v. Danforth, 59 Me. 322, Massachusetts: Slater y. Rawson, 1 Met. 8 Am. Rep. 426. 4.50 ; Raymond v. Raymond, 10 Cush. '' Kellofj<,' y. Malin, .50 Mo. 496, 11 Am. 134; Cornell v. Jackson, 3 Cush. 506; Rep. 426. Follctt ?•. Grant, 5 Allen, 174; Wait v. « Scckler v. Fox, 51 Mich. 92, 16 N. Maxwell, 5 Pick. 217, 16 Am. Dec. 391 ; W. Rep. 246. Chapel w. Bull, 17 Mass. 219; Twambly ^ Rufncr v. McConnel, 14 111. 168;. V. Henley, 4 Mass. 441. Ohio: Stambauf;h Tr.aynor v. Palmer, 86 III. 477 ; Bowne v. V. Smith, 23 Ohio St. 584 ; Great Western Wolcott, 1 N. Dak. 497, 48 N. W. Rep. Stock Co. V. Saas, 24 Ohio St. 542 ; De- 426, per Bartholomew, J. : " Courts can- vore V. Sunderland, 17 Ohio, 52, 49 Am. not make contracts for parties, but must Dec. 442; Foote y. Burnet, 10 Ohio, 317, take them as they find them. If these 327,36 Am. Dec. 90 ; Robinson r. Neil, covenants differ from usual covenants 685 §§ 840-846.J COVENANTS FOR TITLE. OtluT decisions, however, hold that such a covenant imports the personal obligation of the covenantor.^ 846. The covenant of seisin means, ex vi termini, the ■whole legal title, and nothing short oF it will answer. A cove- nant of seisin is broken if the covenantor has not the possession, the riglit of possession, and the complete legal title.^ The covenant of seisin is not broken in case the title and pos- session of the land as described by metes and bomids passes by the deed, though the building thereon encroaches upon the adjoin- ing land. The building in such case, so far as it encroaches upon other land, was not conveyed by the deed.'^ 847. There is a breach of the covenant of seisin if there is no land in existence such as the deed purports to convey.'' But there is no breach in case the land exists and the grantor was seised of it at the time of the conveyance, and it can be identified by the description in the deed, though it i^ erroneously described as being in a certain city, when in fact, by reason of a change of the city limits, it was in another town.^ There is a breach of the covenant if the grantor does not own things affixed to the freehold, such as would pass to the grantee by a conveyance of the land itself.'' A conveyance of land includes not only the naked earth, but everything within it, and the buildings, trees, fixtures, and fences upon itJ 848. A tax sale, so long as the right of redemption remains, is not a breach of the covenant of seisin. It is only an incum- brance.^ But a covenant of seisin in a deed of vacant and unoc- under the same circumstances, we are 19 Am. Dec. 139 ; Allen r. Allen, 48 Minn. bound to presume that parties intend they 462, 51 N. W. Eep. 473. should so differ. We are bound to pre- * Stearn v. Hesdorfer, 9 Misc. Rep. sume that the grantee accepted this cove- 134, 29 N. Y. Supp. 281 ; Sasserath v. nant because he could get no better. It Metzgar, 27 N. Y. Supp. 959; Burke v. may well be that the grantor was willing Nichols, 1 Abb. Dec. 260. to bind his heirs and rejjresentatives to * Bacon v. Lincoln, 4 Cush. 210, 1 the extent of the estate that they might Am. Dec. 765 ; Basford v. Pearson, 9 receive from him, but was unwilling to Allen, 387, 85 Am. Dec. 764. bind himself. The condition of the title ^ Perry v. Clark, 157 Mass. 330, 32 in these cases makes thai view all the more N. E. Rep. 226. probable." g Mott r:. Palmer, 1 N. Y. 564 ; West 1 Smith V. Lloyd, 29 Mich. 382 ; Judd v. Stewart, 7 Pa. St. 122. V. Randall, 36 Minn. 12, 29 N. W. Rep. '' Powers r. Dennison, 30 Vt. 752. 589 ; Hilmert v. Christian, 29 Wis. 104. ^ Semple v. Whorton, 68 Wis. 626, 32 - Lockwood f. Sturdevant, 6 Conn. 373; N. W. Rep. 690; Baldwin v. Ely, 66 Fitzhugh V. Croghan, 2 J. J. Marsh. 429, Wis. 171, 181, 28 N. W. Rep. 392. em COVENANTS FUK SEISIN AND RIGHT TO CONVEY. [^§ 849-851. cupied land is broken by the recording of a tax deed issued to a third person on a tax-sale certificate outstanding when the war- ranty deed was executed, as the recording of a tax deed on vacant land vests the grantee with the constructive possession.^ The grantor may, however, contest the validity of such tax deed.^ 849. The burden of proving a breach is on the plaintiff, who must set forth facts sufiicient to constitute a cause of action.'^ "Where parties contract concerning lands on the presumption that one of them is the owner, it is a reasonable presumption that they have first satisfied themselves by inquiry what the title is ; and, if a defect comes to their knowledge afterwards, the party complaining of it should point it out. The law cannot assume that defects exist when the parties concerned, who may fairly be supposed to have inquired into the facts, assume the contrary." * But it is held when the plaintiff has alleged that the defend- ant was not seised of the land, and the defendant puts this allegation in issue by denial, the burden is upon him to show his seisin, and not upon the plaintiff to show that the defendant was not seised.'^ 850. If at the time of the conveyance the grantee finds the land in the possession of one claiming paramount title, the covenant of seisin is broken, and it is not necessary for the grantee, in order to recover for the breach, to prove actual eviction.^ In case the grantor has undertaken to convey unoccupied lands to which he has no title, there is at once a constructive eviction of the grantee.' 851. A covenantee may maintain a suit upon the covenant 1 Daggett V. Reas, 79 Wis. 60, 48 N. ^ jerald r. EUy, 51 Iowa, 321, 1 N. W. W. Rep. 127. Rep. 639; Blackshire r. Iowa Homestead 2 Mclnnis v. Lyman, 62 AVis. 191, 22 Co. 39 Iowa, 624; Barker v. Kuhn, 38 N. W. Rep. 405. Iowa, 392 ; Schofield v. Iowa Homestead 8 Laudt V. Major (Colo.), 31 Pac. Rep. Co. 32 Iowa, 317. 524 ; Stearn v. Hesdorfer, 9 Misc. Rep. ^ Murphy v. Price, 48 Mo. 247 ; Adkius 134, 29 N. Y. Supp. 281 ; Woolley v. v. Tomlinson, 121 Mo. 487,26 S. W. Rep. Newcombe, 87 N. Y. 605, 612, overruling 573 ; Mitchell v. Hazen, 4 Conn. 495, 10 earlier New York cases; Clapp v. Herd- Am. Dec. 169; Wetzel v. Richcreek man, 25 111. App. 509. (Ohio St.), 40 N. E. Rep. 1004 ; Matteson * Ingalls V. ll-jXon, 25 Mich. 32, per v. Vauglm, 38 Mich. 373. Cooley, J. Also, Peck r. Iloughtiiling, " Mclnnis v. Lymun, 62 Wis. 191,22 35 Mich. 127 ; Woolley v. Newcombe, 87 N. W. Rep. 405 ; Nichol t;. Alexander, 28 N. Y. 605 ; Jerald v. Elly, 51 Iowa, 321, Wis. 118. 1 N. W. Rep. 639. 681 §§ 85'2, 853.] COVENANTS FOR TITLE. of seisin, although at the time of bringing it he had parted with his title to the land. The covenant, it broken at all, was broken at the time of the conveyance. The covenantee is the only person who can maintain an action for a breach of the cove- nant, wliicli is a non-assignable chose in action. If the covenantee discharges the liability which constituted a breach of the cove- nant, or in effect takes up the covenant for his own benefit, so that he is in a position to recover the money he has paid out to perfect his title, it does not matter that he has parted with the title to the property .^ IV. Covenant against Incumbrances. 852. An incumbrance within the meaning of the covenant is any interest in a third person consistent with a title in fee in the grantee, if such outstanding interest injuriously affects the value of the property. It is not necessarily a lien, specific or determinable in amount.^ A covenant against incumbrances need not be expressed in any particular words. Thus a covenant " against all persons whom- soever, and all claims whatsoever," except a certain sum of money, is a covenant against incumbrances as well as a covenant of war- ranty. The word " claims," to the common understanding, would embrace all demands of a pecuniary nature existing against the land, with the exception mentioned ; or, in other words, it means the incumbrances upon the land.^ 853. Under a covenant that the grantor had " not done, or sufifered to be done, anything w^hereby the said premises " are or may be in any manner incumbered, the grajitor is liable only for his own act, or for an act within his control.* An incum- brance already upon the property when the grantor acquired title 1 Clement u. Bank, 61 Vt. 298, 17 Atl. 399; Stambangh v. Smith, 23 Ohio St. Rep. 717; Cornell v. Jackson, 3 Cush. 584; Huyck v. Andrews, 113 N. Y. 81, 506. 8^, 20 N. E. Rep. 581 ; Fritz v. Pusey, 31 2 Rawle, Cov. §§ 75, 76, 191 ; Prescott Minn. 368, 8 N. W. Rep. 94; Warner v. V. Trueman, 4 Mass. 627,3 Am. Dec. 249 ; Rogers, 23 Minn. 34 ; Post v. Campau, 42 Clark V. Fisher, 54 Kans. 403, 38 Pac. Mich. 90, 3 N. W. Rep. 272. Rep. 493; Lafferty v. Milligan, 165 Pa. 3 Johnson v. Hollensworth, 48 Mich. St. 534, 30 Atl. Rep. 1030; Barlow w. 140, 11 N. W. Rep. 843. And see Leddy McKinley, 24 Iowa, 69 ; Harrison v. Des v. Enos, 6 Wash. 247, 33 Pac. Rep. 508. Moines & Ft. D. R. Co. (Iowa) 58 N. W. * Hobson v. Middleton, 6 Barn. & C. Rep. 1081 ; Carter v. Denman, 23 N. J. 295 ; Townson v. Green, 2 Car. & P. 110; L. 260 ; Chapman ;;. Kimball, 7 Neb. Stannard v. Forbes, 6 Adol. & E. 572, 688 COVENANT AGAINST INCUMBRANCES. [^^ 8o-i, 855. is not within such covenant.^ In an action by a purchaser under such a covenant to recover taxes for the jeav in which the con- veyance was made, he must allege and prove that the grantor was the owner on the day when the lien for the taxes attached to the property.^ 854. This covenant is a protection only against incum- brances existing when the covenant was made. Thus where a purchaser assumed and agreed to pay a mortgage upon the land, and afterwards conveyed it by a deed in which he covenanted that it was free from all incumbrances made or suffered by him, but, this deed not having been recorded, he subsequently made a new mortgage to the holder of the mortgage he had assumed, for a similar amount, and the old mortgage was thereupon discharged, it was held that the new mortgage was not a breach of the cove- nant made in the mortgagor's deed. There was no incumbrance made or suffered by him at the time of his conveyance.^ 855. A mortgage is of course an incumbrance within the meaning of this covenant. Any debt which by contract or statute is made a lien upon the land is an incumbrance, as, for instance, a judgment, an attachment. A lien at common law or in equity is an incumbrance. It is seldom that any controversy arises in regard to such an incumbrance, except in cases in which the covenant against incumbrances is in some way qualified with reference to a particular mortgage or other incumbrance named. A general exception of a mortgage or other incumbrance from the operation of a deed qualifies all the covenants.^ Thus where, immediately following the description, the land was declared to be subject to a mortgage described, and it was contended that, the mortgage not being excepted from the covenant against incumbrances, there was a breach of the covenant, it was held that the covenant did not apply to that incumbrance, which by the terms of the deed was excepted.^ The words " subject to a 1 Parker v. Parker, 93 Ala. 80, 9 So. » Foster v. Woodward, 141 Mass. 160, Rep. 426 ; Brown v. Young, 69 Iowa, 625, 6 N. E. Kep. 8.5.3. 29 N. W. Rep. 941 ; Cole v. Lee, 30 Me. * Sweet i-. Brown, 12 Met. 17.'>, 177, 45 392; Comstock v. Smith, 13 I'ick. 116,23 Am. Dec. 243; Sandwich Manuf. Co. v. Am. Dec. 670 ; Parish v. White, 5 Tex. Zelimer, 48 Minn. 408, 51 N. W. Rep. Civ. App. 71, 24 S. W. Rep. 572; Mc- 379; .Jackson v. Hoffman, 9 Cow. 271; Intyre n. De Long, 71 Tex. 86, 8 S. W. Gerdine v. Menage, 41 Miun. 417, 43 N. Rep. 622 ; Rhode v. Alley, 27 Tex. 442. W. Rep. 91. 2 Smith V. Eigerman (lud.), 31 N. E. '' Freeman v. Foster, 55 Me. 508; Kin- Eep. 862. near v. Lowell, 34 Me. 299. 689 §§ 856, 857.] COVENANTS FOR TITLE. mortgage " were used as a part of the description of tlie estate granted, and to that estate, thus qualified, the covenants apply .^ Of course the same rule applies when the grant is made subject to certain easements ; the covenant against incumbrances applies, not to an estate in fee, but to the fee diminished by the existing easements, which are excepted out of the grant.^ 856. The exception of a mortgage of a certain amount, described also by the names of the parties and the record, is an exception of both the principal and interest of the incum- brance, and the purchaser, having been obliged to pay the interest as well as the principal to prevent a foreclosure, cannot maintain an action on the covenant against incumbrances on the ground that the principal only of the mortgage was excepted. The prin- cipal and interest constitute a single incumbrance."^ The costs of a foreclosure suit follow the mortgage incum- brance. Where a mortgage was excepted from all the covenants of a deed which was made in pursuance of a contract of sale, but before the delivery of the deed the holder of the mortgage commenced proceedings to foreclose it, and filed a notice of the pendency of the action, the payment by the grantee of accrued costs to procure a discontinuance of the suit was held not to be sufficient to support an action on the covenant. The proceedings to foreclose the mortgage were merely an incident to the mortgage incumbrance.'* 857. A covenant against incumbrances may be qualified by a mortgage given by the purchaser to his grantor as a part of the same transaction. Thus, if the deed contains such a cove- nant, and a mortgage or deed of trust given by the grantee at the same time of the same land contains a special covenant that the mortgagor will pay all the taxes then existing on the land conveyed, the general covenant of the deed is qualified by the special covenant, so that the general covenant cannot be enforced.^ A general covenant is also qualified and limited by the terms 1 Brown v. South Boston Sav. Bank, 3 Shanahan v. Perry, 130 Mass. 460. 148 Mass. 300, 19 N. E. Rep. 382; Hoxie ■* Monel! v. Douglass, 17 N. Y. Supp. V. Finney, 16 Gray, 332 ; Sweet w. Brown, 178 ; Bradshaw v. Crosby, 151 Mass. 237, 12 Met. 175, 45 Am. Dec. 243. 24 N. E. Rep. 47. 2 Wood V. Boyd, 145 Mass. 176, 13 ^ Geer v. Redman, 92 Mo. 375, 4 S. W. N. E.'Rep. 476. Rep. 745. 690 COVENANT AGAINST INCUMBRANCES. [§§ 858, 859. of the grant, and, this being only of the grantor's right, title, and interest, the covenant is restricted to such right. ^ 858. As a general rule, a restricted covenant does not affect the operation of a succeeding covenant not connected with it, or not of the same import with it.^ Thus the fact that in the covenant against incumbrances a mortgage is excepted does not imjDly that the covenant of general warranty is to be restricted and made subject to such incumbrance. The two covenants are not connected, and are not of the same nature or import.-^ The exception in the covenant against incumbrances exempts the grantor from an action upon that particular covenant, and it can have no further effect. It is perfectly consistent for the grantor to warrant the title by a general covenant, though he has made the covenant against incumbrances subject to a mortgage.* " A prudent grantor may desire that the deed shall state the truth, and he is obliged to give the grantee notice of an incumbrance ; and he may know or believe that the incumbrance will be removed before it ripens into a title which would be ground for an eviction, so that he might risk a warranty against an eviction, when he might be unwilling to take the risk of a present lia- bility for a breach of the covenant against incumbrances." ^ 859. An exception of a mortgage following all the cove- nants is held to limit and restrain all the preceding covenants.^ 1 Allen V. Holton, 20 Pick. 458 ; Sweet v. Richards, 11 East, 633 ; Norman v. Fos- i;. Brown, 12 Met. 17.5, 45 Am. Dec. 243 ; ter, 1 Mod. 101 ; Smith v. Compton, 3 B. Blanchard v. Brooks, 12 Pick. 47, 66 ; & Ad. 189 ; Duvall v. Crai<,s 2 Wheat. 45, Hoxie V. Finney, 16 Gray, 332; Brown 58; King v. Kilbride, 58 Conn. 109, 19 V. South Boston Sav. Bank, 148 Ma.S8. Atl. Kep. 519 ; Linton y. Allen, 154 Mass. 300, 19 N. E. Rep. 382. 432, 437, 28 N. E. Rep. 780; Estabrook 2 Howell V. Richards, 11 East, 633; v. Smith, 6 Gray, 570, 572, 577, 66 Am. Sandwich Manuf. Co. v. Zellmer, 48 Dec. 445; Sumner v. Williams, 8 Mass. Minn. 408, 51 N. W. Rep. 379; Bennett 162,202, 214,5 Am. Dec. 83 ; Donahoe t'. Keehn, 67 Wis. 154, 162, 29 N. W. «. Etaery, 9 Met. 63 ; Cornell v. Jackson, Rep. 207, and 30 N. W. Rej). 112 ; Rowe * 3 Cush. 506; Peters i;. Grubb, 21 Pa. St. V. Heath, 23 Tex. 614. 4G0 ; Bennett v. Kcehn, 67 Wis. 1.54, 29 Contra, Bricker V. Bricker, 1 1 Ohio St. N. W. Rep. 207, 30 N. W. Rep. 112; 240. Dickinson v. Iloomes, 1 Gratt. 302, 8 Gratt. 3 Estabrook v. Smith, 6 Gray, 570, 572 ; 353 ; Rowe v. Heath, 23 Tex. 614. Ogden V. Ball, 40 Minn. 94, 41 N. W. *"' Sandwich Maniif. Co. v. Zellmer, Rep 453. 48 Minn. 408, 51 N. W. Rep. 379, per * Sandwich Manuf. Co. v. Zellmer, 48 Vanderburgh, .J. Minn. 408, 51 N. W. Rep. 379 ; Merritt v. ; Smith v. Kason, 46 Ga. 316. Illinois : Beach v. Miller, 51 111. 206, 2 Am. liep. 290. Indiana : Quick V.Taylor, 113 Ind. 540, 10 N. K. Hep. 588; Watts v. Fletcher, 107 Ind. 391, 8 N. E. Rep. Ill ; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731. Iowa: McGowen V. Myers, 60 Iowa, 256, 14 N. W. Rep. 788; Van Wagner y. Van Nostrand, 19 Iowa, 422; Barlow v. Mc Kin ley, 24 Iowa, 69 ; Gerald v. Elley, 45 Iowa, 322. Ken- tucky : Butt V. Riffe, 78 Ky. 352. Maine : Lamb v. Danforth, 59 Me. 322, 8 Am. Rep. 426 ; Haynes v. Young, 36 Me. 557 ; Ilerrick v. Moore, 19 Me. 313. Massa- chusetts : Ladd v. Noyes, 137 Ma.ss. 151 ; Kellogg V. Ingersoll, 2 Mass. 97 ; Sprague V. Baker, 17 Mass. 586 ; Harlow v. Thom- as, 15 Pick. 60; Parish r. Whitney, 3 Gray, 516. Missouri: Kellogg i». Malin, 50 Mo. 496, 11 Am. Rep. 426. Nebraska: Burr V. Lamastcr, 30 Nel). 088, 40 N. W. Rep. 1015. New Hampshire: Foster v. Foster, 62 N. 11. 532 ; Fletcher v. Cham- berlin, 61 N. II. 438, 447; Prichard v. Atkinson, 3 N. H. 335. New York: Huyck V. Andrews, 113 N. V. 81, 20 N. E. Rep. 581 ; Doctor v. Darling, 22 N. Y. Sujip. 594. Ohio: Long v. Moler, 5 Ohio St. 271. Vermont : Clark v. Con roe, 38 Vt. 469 ; Butler v. Gale, 27 Vt. 739. 3 Bennett v. Keehn, 67 Wis. 154, 29 N. W. Rep. 207, 30 N. W. Rep. 112; Hymes v. E>tey, 1 10 N. Y. 501, 22 N. E. Rep. 1087 ; Huyck v. Andrews, 113 N. Y, 81, 20 N. E. Rep. 581. 705 §§ 883, 884.] COVENANTS FOR TITLE. of warranty in his deed by reason of having required and ob- tained the opinion of counsel as to the title before completing the salc.i 883. Parol evidence is not admissible to show that a pur- chaser knew of the existence of an incumbrance or adverse right not referred to in the deed, and took the conveyance subject to '\t? " Uncertain would be the titles of real estate, and useless the registration of deeds, if their contents and effects were to be determined by the testimony of witnesses." ^ It is competent to covenant against known incumbrances. The purcliaser might know of the existence of an incumbrance, and yet expect that the grantor would remove it. But, however this might be, to show by parol evidence that he knew of the existence of the incumbrance and bought subject to it, is inad- missible either to control the meaning of the covenant or to miti- gate the damaojes for a breach of it."* 884. A distinction is made in some cases between incum- brances which affect the title and those that simply affect the physical condition of the land, as regards the effect of notice to tlie grantee of the incumbrance, or knowledge of it on his part. '• Where incumbrances of the former class exist, the covenant referred to, under all authorities, is broken tlie instant it is made, and it is of no importance that the grantee had notice of them when he took the title.'^ Such incumbrances are usually of a temporary character and capable of removal ; the very object of the covenant is to protect the vendee against them ; hence know- ledge, actual or constructive, of their existence, is no answer to an action for breach of such covenant. Where, however, there is a servitude imposed upon the land, which is visible to the eye 1 Eaton V. Chcsebrough, 82 Mich. 214, v. Spangenberg, 70 Iowa, 488, 30 N. W. 40 N. W. Rep. .36.5. Rep. 875 ; Van Wagner v. Van Nostrand, - Towusend r. Weld, 8 Mass. 146; Har- 19 Iowa, 422 ; Budd v. United Carriage low ?;. Thomas, 1 .5 Pick. 66 ; Edwards v. Co. 2.5 Oreg. 314, 35 Pac. Rep. 660; Clark, 83 Mich. 246, 47 N. W. Rep. 112; Medler v. Hiatt, 8 Ind. 171 ; Snyder v. Smith V. Lloyd, 29 Mich. 382, 388 ; Bal- Lane, 10 Ind. 424. lard V. Burrows (Iowa), 50 N. W. Rep. 3 Harlow v. Thomas, 15 Pick. 66, per 74; Yancey v. Tatlock (Iowa), 61 N. W. Morton, J. Rep. 997 ; Flynn v. Mining Co. 72 Iowa, * Harlow v. Thomas, 15 Pick. 66. 738, 32 N. W. Rep. 471 ; McGowen v. 6 Cathcart v. Bowman, 5 Pa. St. 317; Myers, 60 Iowa, 256, 14 N. W. Rep. 788 ; Funk v. Voneida, 11 S. & R. 109, 14 Am. Billingham y. Bryan, lOlowa, 317 ; Specht Dec. 617. ' 706 COVENANT AGAINST INCUMBRANCES. [§ 885. and which affects not the title, but the physical condition of the property, a different rule prevails." i 885. Accordingly a visible servitude not affecting the title, but only the physical condition of the property, is not within the covenant, according to these decisions.^ Therefore a public highway in use upon the property conveyed, although admittedly an incumbrance and possibly an injury to the |)roperty, is pre- sumed to have been known to the pui cliaser. He is presumed not only to have seen the highway, but to have purchased with ref- erence to it, whether it is an injury to the land or a benefit. If it is in fact an injury to the land, it is presumed that this fact was taken into account in fixing the price, and that the pur- chaser has obtained all that he paid for. He is not, therefore, allowed to complain of the servitude as a breach of the grantor's covenant against incumbrances.^ A purchaser of real estate, under a deed containing a covenant that the premises are free from incumbrances, given under a contract calling for a general warranty deed, cannot be heard to complain, in an action brought by him against the grantor to recover damages for an alleged breach of the covenant against incumbrances, that he did not get the easements that he expected to, because of the existence, in front of the premises, of an ele- vated railroad, in case the plaintiff knew, at the time of making his contract and taking his deed, that the easement was in the actual use and occupation of the railroad company, and tlius had notice that the railroad company had some claim of right to the easement, and that it was partially extinguished.* This rule does not apply in case of a highway which is not 1 Memmert v. McKeen, 112 Pa. St. Hun, 533, 26 N. Y. Sapp. 842 ; Whitbeck 315, 320, 4 Atl. Rep. 542. And see Kutz v. Cook, 15 Johns. 483, 8 Am. Dec. 272 ; V. McCune, 22 Wis. 628, 99 Am. Dec. Hiiyck v. Andrews, 113 N. Y. 85, 20 N. 85. E. Rep. 581 ; Desvergcs v. Willis, 56 Ga. 2 Memmert v. McKeen, 112 Pa. St. 515, 21 Am. Rep. 289; Jordan v. Eve, 315, 4 Atl. Rep. .542. .31 Cxratt. 1; Kutz v. McCune, 22 Wis. 8 Memmert v. McKeen, 112 Pa. St. 315. G28, 99 Am. Dec. 85; Smith v. Hughes, 4 Atl. Rep. 542 ; Patterson v. Arthurs, 9 50 Wis. 620, 7 N. W. Rep. 653; Lallaude Watts, 152; Wilson v. Cochran, 46 Pa. y. Wentz, 18 La. Ann. 289 ; Barre i. Elem- St. 229 ; Harrison t\ Des Moines & Ft. D. ing, 29 W. Va. 314, 326, 1 S. E. Rep. R. Co. (Iowa) 58 N. W. Rep. 1081 ; Hymes 731 ; Patton i;. Quarrier, 18 W. Va. 447. 0. Estey, 116 N. Y. 501, 22 N. E. Rop. < Ratliarach v. Von Eiff, 74 Hun, 533, 1087, 133 N. Y. 342, 31 N. E. Rep. 105, 26 N. Y. Supp. 842. 36 Hun, 147; Bachnracli v. Von Eiff, 74 707 §§ 886, 887.] COVENANTS FOR TITLE. open, visible, and in iictual use at the time of the conveyance. If there is nothing upon the hind to indicate the existenc ' of a public highway over any part of it, and it is afterwards adjudged that some part of it has been dedicated as a street, and the grantee is enjoined from interfering witli the use of such part as a street, there is a breach of the covenant of quiet enjoyment.^ 886. The distinction between incumbrances which affect the physical condition of the property and those that affect the title is not, however, generally recognized. Tlie authorities sustaining this distinction are criticised in a recent decision of the Court of Appeals of New York. " We do not yield assent to these authorities," say the court. " They have no sanction in any of the cnses decided in this State, and have no adequate founda- tion in principle or reason. They open to litigation, upon parol evidence, in every, action for the breach of the covenant against incumbrances caused by the e.Kistence of an easement, the ques- tion whether the grantee knew of its existence ; and in every such case the protection of written covenants can be absolutely taken away by disputed oral evidence. We think the safer lule is to hold that the covenants in a deed protect the grantee against every adverse right, interest, or dominion over the land, and that he may rely upon them for his security. If open, visible, and notorious easements are to be excepted from the operation of cove- nants, it should be the duty of the grantor to except them, and the bui'den should not be cast upon the grantee to show that he was not aware of them. The security of titles demands that a grant made without fraud or mutual mistake shall bind the grantor according to its written terms. It should not be incum- bent upon the grantee to take special and particular covenants against visible and apparent defects in the title, or incumbrances upon the land ; but it should be incumbent upon the grantor, if he does not intend to covenant against such defects and incum- brances, to except them from the operation of his covenants. The distinction which is attempted to be made, between incum- brances which affect the title and those which affect merely the physical condition of the land conveyed, is quite illusory and unsatisfactory." '^ 887. If there is anything in the deed to show that the par- 1 Hymes v. Esty, 116 N. Y. 501, 22 - Huyck v. Andrews, 113 N. Y. 81, 90, N. E. Rep. 1087. 20 N. E. Rep. 581, per Earl, J. 708 COVENANT AGAINST INCUMBRANCES. [\ ties did not intend that a known incumbrance should be within the covenant, the purchaser takes it cum 07iere, and can- not comphiin that the incumbrance is a breach of the covenant. But his mere knowledge of the incumbrance is not sufficient to exclude it from the oi^eration of the covenant. The intention to exclude the incumbrance should be manifested in some way by the deed itself, for a resort to oral or other extraneous evidence would violate a settled principle of law in regard to deeds. A slight reference in the deed, or even a single word, may indicate that the property conveyed is subject to some right or easement to which it was not intended the covenant against incumbrances should appl}'. Thus a highway described in the deed itself as a boundary of the land, or as crossing the land, is not within the covenants of the deed. In such case, knowledge of the fact of the existence of a public right of way upon the land is brought home to the purchaser by the deed itself, without a resort to oral or other extraneous evidence ; and the rule that such evidence is not ad- missible to conti'ol tlie covenants is not violated.^ 888. The covenants of a deed are limited by the peculiar nature of the property described. Thus, where a deed described the land as " flats," this term alone was held to imply that the public had a right to use the land for the purposes of navigation, and the existence of this public easement was declared not to be a breach of the covenant.^ The same rule applies in regard to an easement of the public in that portion of the land between high and low water mark on a navigable stream ; and a covenant of warranty of such land is not broken by the existence of such an easement, because the grantee is presumed to have known of its existence, and to have contracted with reference to it.-^ The covenant is limited in its effect to the particular incum- brance described. Under a covenant in a quitclaim deed by an heir to save the grantee harmless from liens arising out of claims against tlie estate of liis ancestor, the gmntee cannot recover for 1 Holmes v. Danfortli, 83 Me. 139, 21 covenant agiiinst incunibrances, saying, Atl. Rei). 845. Walton, .!., refers to the " We do not jjo so far as that." case of Memmert v. McKeen, 112 Pa. St. - Mont^romcry r. Reed, 69 Me. 510. 315, 4 Atl. Rep. 542, where the fact of ■' Barre v. Fleming, 29 W. Va. 314, I notice alone was held to be sufficient S. E. Rep. 731. ground for excluding the operation of the 709 §§ 889-891.] COVENANTS FOR TITLE. a breach of such covenant on the ground that, at the time of the execution of the deed, a right of way across the farm was vested in another.^ 889. A coveaant is extinguished by a reconveyance by the grantee to his grantor with like covenants as those in the deed to the grantee ; as, for instance, where the same incum- brance of record existed at the time of each conveyance, and each contained a covenant against incumbrances, to avoid circuity of action, the covenant in the one deed will be lield to cancel the covenant in the other, so that no action on the covenant can be maintained by eitlier party, or by the assignees of either .^ A special covenant to release the granted premises from an incumbrance named by the holder of the equitable title is not impaired by the attestation clause which recites that such cove- nantor '■'■ joins to i-elease any equitable interest in said premises ; " for this is not declared to be the only purpose of the covenantor in joining in the deed."^ 890. A covenant against incumbrances is broken on the delivery of the deed, if an incumbrance on the land then exists. Accordingly an eviction is not necessary to the right of action on this covenant. There is a distinction in this respect between a covenant against incumbrances and a covenant of warranty against incumbrances.^ When the covenant is in the usual form, " that the premises are free of all incumbrance," it is a covenant in prcese7iti, and is broken as soon as made. When, however, instead of standing by itself it is coupled to the cove- nant for quiet enjoyment, immediately following it and connected with it by the word awe?, it may be a covenant in futuro, and will then run with the land until broken.^ 891. The right of action accrues to the covenantee imme- diately. When, at the time of the conveyance, there is an out- standing lien or incumbrance, the grantee need not wait until he is evicted. If the grantee extinguishes the incumbrance he may recover the amount so paid. If he has not extinguished it he can recover only nominal damages.*^ 1 Marsh v. Fisb, 06 Vt. 213, 28 Atl. * Fisk v. Cathcart, 3 Colo. App. 374, Rep. 987. 33 Pac. Rep. 1004 ; Streeper ;;. Abeln, 2 Silverman v. Loomis, 104 III. 137; 59 Mo. App. 48.5; Maibury i'. Thornton, Brown v. Metz, 33 111. 339 ; Goodel v. 82 Va. 702, 1 S. E. Rep. 909. Bennett, 22 AVis. 56^. ^ Rawle on Covenants, §§ 70-73. 3 Palmer v. Wall, 128 Mass. 475. « Bradshaw v. Crosby, 151 Mass. 237, 710 COVENANT FOR WARRANTY AND QUIET ENJOYMENT. [§§ 892, 893. V. Covenant for Warranty and Quiet Enjoyment. 892. A general covenant of warranty is tantamount to the covenant of quiet enjoyment, and what amounts to a breach of the one is a breach of the other.^ The covenant of warranty is generally regarded as being no broader in its scope than the covenant for quiet enjoyment.^ In a few States, however, the covenant of warranty, in accord- ance with long-settled usage, is considered as equivalent to the several covenants in use under the common law ; " as that one is seised of the land sold, that he has good and perfect right to convey, that the land is free from incumbrances, that the grantee shall quietly enjoy possession, and that the grantor will warrant and defend the title against all claims of all persons." ^ The covenant of non-claim sometimes used is the same in effect as a qualified covenant of warranty.^ It is broken in the same way, the damages for a breach are the same, and it equally runs with the land. 893. The covenant for quiet enjoyment is intended to se- cure undisturbed possession for the purchaser.^ It protects the purchaser from a wrongful disturbance by the covenantor, his heirs or executors, or other person specially named in the covenant ; but not a wrongful disturbance by any other person, for the law gives a direct remedy upon such a disturbance.*^ 24 N. K. Rep. 47 ; Ilarwood v. Lee, 85 Ky. 352 ; Piyse v. McGuire, 81 Ky. 608 ; Iowa, 622, 52 N. W. Kep. 521 ; Fuuk v. Lessly v. Bowie, 27 S. C. 193, 3 S. K. Creswell, 5 Iowa, 62; Knadlcr v. Sharp, Rep. 199; Jeter i'. Glenn, 9 Rich. 374; 36 Iowa, 232 ; Eversole v. Early, 80 Iowa, Evans v. McLiicas, 12 S. C. 56 ; Welsh ;;. 604, 44 N. W. Rep. 897. Kibler, 5 S. C. 405 ; Funk i>. Creswell, 5 1 Cheney o. Straube, 35 Neb. 521,53 Iowa, 62, 93. N. W. Rep. 479 ; Real v. IloUister, 20 * Gibbs r. Thayer, 6 Cash. 30 ; Porter Neb. 112, 29 N. W. Rep. 189; Mescrvcy v. Sullivan, 7 Gray, 441 ; Trull v. East- v. Snell (Iowa), 62 N. W. Rep. 767 ; Burk man, 3 Met. 121; Lothrop v. Snell, 11 V. Bnrk, 64 Ga. 632 ; Butt /•. Riffe, 78 Cash. 4.53 ; Newcomb v. Presbrcy, 8 Met. Ky. 352, 355. 406; Kimball v. Blaisdcll, 5 N. II. 533; 2 Reed v. Hatch, 55 N. II. 327, .336 ; Ilolln-ook r. Debo. 99 111.372; Boatwick Peck V. Hougbtalin;:. 35 Mich. 127, 131 ; v. Willinms, 36 111. 65, 70; Gee y. Moore, Bostwick I,'. Williams, 36 111. 65, 69 ; Rca 14 Cal. 472. V. Minklcr, 5 Lans. 196; Grcenvault r. See, however, as reganls estoppel, Par- Davis, 4 Hill, 643; Clarke i-. M'Aiiulty, tridf,'e v. Patten. 33 Me. 483; Pike v. 3 Serg. & R. 364; Emerson r. Proprie- Galvin, 29 Me. 183. tors, 1 Mass. 464, per Sedt,'wick, J. ^ Ludwell v. Newman, 6 T. R. 458. 3 Smith v. Jones (Ky.), 31 S. W. Rep. » Foster v. Mapes, Cro. VXxz. 212; 475 476 per Grace J.; Butt r. Riffe, 78 Dudley v. Folliott. 3 T. R. 584; Nash ' ' 711 § 894.] COVENANTS FOR TITLE. Even as against* the covenantor, the covenant extends only to any distui'bance made by him under a chiim of title, and not to anything done by way of trespass merely.' Neither the covenant for quiet enjoyment nor that of warranty protects the grantee against adverse claims or suits for which the grantor is not responsible, but only against claiuis and suits based upon a legal foundation.^ A covenant which recites that the grantor covenants, grants, and agrees that he, "against all and every person and persims whomsoever lawfully claiming or to claim the same, or any part thereof, shall and will warrant and forever defend," is a covenant for quiet enjoj'ment, and not one against incumbrances.^ " A covenant that the party of the first ])art, in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against the said party of the first part, his heirs and assigns, and against all and every person and persons whomsoever lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend," is a warranty of peaceable possession, and is broken by an eviction under a paramount title.-* 894. The covenant of warranty applies to the estate con- veyed, and cannot enlarge that estate.^ If the deed conveys V. Palmer, 5 Mau. & Sel. 374; Fowle u v. Masson, 67 Cal. 169, 7 Pac. Rep. 452; Welsh, 1 B. &C. 29; Jeffryes . i;. Evans, Playter v. Cunningham, 21 Cal. 229; 19 C. B. N. S. 246; Sanderson v. Ber- Branger v. Manciet, 30 Cal. 624; Kelly wick-upon-Tweed, 13 Q. B. D. 547 ; An- v. Dutch Church, 2 Hill, 105 ; Greenby v. drus V. St. Louis Smelting Co. 130 U. S. Wilcocks, 2 Johns. 1 ; Moore v. Weber, 643, 9 Sup. Ct. Eep. 645; Norton v. 71 Pa. St. 429; Schuylkill R. Co. v. Schmucker (Tex.), 18 S. W. Rep. 720. Schmoele, 57 Pa. St. 273. , 1 Penu V. Glover, Cro. Eliz. 421 ; Lloyd ^ Leddy v. Enos, 6 Wash. 247, 33 Pac. V. Tomkies, 1 T. R. 671 ; Seddon v. Sen- Rep. 508. ate, 13 East, 63 ; Sherman v. Williams, ^ McLean v. Webster, 45 Ivans. 644, 26 113 Mass. 481 ; O'Keefe v. Kennedy, 3 Pac. Rep. 10. Cush. 325; Sedgwick v. Hollenbeck, 7 ^ Sweet v. Brown, 12 Mete. 17.5, 45 Johns. 376 ; Curtis i: Deering, 12 Me. 499 ; Am. Dec. 243 ; Allen v. Holton, 20 Pick. Avery v. Dougherty, 102 Ind. 443; Wade 458; Ballard v. Child, 46 Me. 152; Mc- V. Comstock, 11 Ohio St. 71. Near v. McCombcr, 18 Iowa, 12; Kimball 2 Hayes v. Bickersraff, Vaughan, 118; v. Semple, 25 Cal. 440; Blauchard v. Noonan v. Lee, 2 Black, 499; Kimball Brooks, 12 Pick. 47; White v. Brocaw, V. Grand Lodge, 131 Mass. 59; Bartlett 14 Ohio St. 339 ; Adams v. Ross, 30 N. J. ». Farriiigton, 120 Mass. 284; Akerly v. L. 505, 510, 82 Am. Dec. 237 ; Lamb v. Vilas, 23 Wis. 207, 99 Am. Dec. 165; Wakefield, 1 Sawy. 251 ; Hope v. Stone, Gleason v. Smith, 41 Vt. 293; Underwood 10 Minn. 141 ; Hull v. Hull, 35 W. Va. V. Birchard, 47 Vt. 305; Meaervey v. 155,13 S. E. Rep. 49. Snell (Iowa), 62 N. W. Rep. 767; West 712 COVENANT FOR WARRANTY AND QUIET ENJOYMENT. [§§ 895, 896. merely the grantor's interest in the land, a covenant of general warranty in it is limited and restricted to such interest, and does not warrant the land against a superior title in another.^ It is limited as well to the particular parcel of ground intended to be conveyed according to the description in the deed.^ This covenant does not estop the grantor from claiming a breach of explicit conditions, incorporated in the granting part of the deed, restricting the future use of the granted property. " That which the covenantor in such a deed undertakes to war- rant and defend against all lawful claims is not the land, or an absolute and unqualified estate in it, but ' the premises ; ' that is, the defeasible estate conveyed by the preceding grant, upon con- ditions expressed in the same deed." ^ 895. A covenant of warranty is not qualified by a phrase at the end of the description of the land, " being the same premises by a person named conveyed to me," even if through that deed an incumbrance was discoverable. The reference was designed to help identify the premises conveyed, and not to deter- mine the quantity or quality of title. If the rule were otherwise it would be hazardous to accept deeds containing such references. Grantees would be too easily deceived by them.* The force and effect of a formal and complete covenant of warranty will not be cut down by words of doubtful import in the deed,^ nor by a written contract, contemporaneous with the deed, whereby it is agreed that the general covenant of warranty shall apply only to conveyances, incumbrances, and acts done or suffered by the grantor.^ 896. A conveyance in terms of the grantor's right, title, and interest is not enlarged in scope by a general covenant, but such covenant must be limited to fit the estate and interest of the grantor.'^ 1 Hull V. Hull, .35 W. Va. 155, 13 S. E. « Rinchart v. Rinchart, 91 Ind. 89. Rep. 49. ' Haiirick y.raliick, 119 U.S. 1.56, 175, 2 Allen V. Kersey, 104 Ind. 1, 3 N. E. 7 Sup. Ct. Rep. 147 ; Allen v. Holton, 20 Rep. 557. V\ek. 453 ; Sweet v. Hrown, 12 Mete. 175, 3 Linton v. Allen, 154 Mass. 432, 438, 45 Am. Dec. 243; Hlancliard v. Brooks, 28 N. E. Rep. 780, per Barker, J. 12 Pick. 47 ; MeNear v. McComber, 18 * Shaw /'. Bisbee, 83 Me. 400, 22 Atl. Iowa, 12 ; Gee v. Moore, 14 Cal. 472 ; Kim- Rep. 361, per Peters, C. J. ; Hathoru v. ball v. Somple, 25 Cal. 440; Bates v. Fos- Hinds, 69 Me. 326. ter, 59 Me. 157, 8 Am. Rep. 406; Gib-on 6 Cornish v. Capron, 136 N. Y. 232, 32 v. Chouteau, 39 Mo. 536 ; Young v. Clip- N E Rep 773 pinger, 14 Kans. 148 ; Stockwell v. Couil- 713 §§ 897, 898.] COVENANTS FOR TITLE. Even if the grant is of certain land described, with an expla- nation that the grantor means to convey only his right, title, and interest in it, a general warranty of title is restricted to the grantor's interest.-^ But if it is evident from the deed itself that the grantor intended to convey an estate of a particular description or quality, the o-rantor is bound by his covenants, at least to the extent of being estopped to say that he was not seised of such estate at the time of the conveyance.'-^ 897. Covenants of warranty do not cover a title or incum- brance held by the covenantee himself. They extend only to a title or incumbrance existing in a third person which may defeat the estate granted by the covenantor.^ The grantee cannot set up, as a breach of the covenant of his deed, an outstanding title in himself, or an incumbrance held by him. '' It never can be per- mitted to a person to accept a deed with covenants of seisin, and then turn round upon his grantor and allege that his covenant is broken, for that, at the time he accepted the deed, he himself was seised of the premises." ^ 898. The covenant of warranty is not a warranty of quan- tity in a deed which describes the land by metes and bounds, and as containing a certain number of acres, " more or less," though in fact the quantity is greatly less than it is represented to be in such description.^ The description of quantity is a part of the lard, 129 Mass. 231 ; Reynolds v. Shaver, 479,485; Hannon y. Christoplier, 34 N. 59 Ark. 299, 27 S. W. Rep. 78 ; McDon- J. Eq. 459. ough V. Martin, 88 Ga. 675, 16 S. E. Rep. 3 Smiley v. Fries, 104 111. 416 ; Furuess 59, per Blickley, C. J.; Cummings v. r. Williams, 11 111.229; Beebe y. Swart- Dearborn, 56 Vt. 441 ; Bowen v. Thrall, wout, 8 111. 162; Carson v. Cabeen, 45 111. 28 Vt. 382 ; Marsh «. Fish, 66 Vt. 213, 28 App. 262 ; Horrigan v. Rice, 39 Minn. 49, Atl. Rep. 987 ; Habig v. Dodge, 127 Ind. 38 N. W. Rep. 765. 31, 40, 25 N.E. Rep. 182; Locker. White, * Fitch v. Baldwin, 17 Johns. 161, 89 Ind. 492; Bryan r. Uland, 101 Ind. 166. 477. The statutory covenant will be re- ^ Rogers v. Peebles, 72 Ala. 529 ; Win- strained where the conveyance is of the ston v. Browning, 61 Ala. 80; Carter v. grantor's interest only. Gibson v. Chou- Beck, 40 Ala. 599 ; Wright v. Wright, 34 teau, 39 Mo. 536 ; Koenig r. Branson, 73 Ala. 194; Erskine v. Wilson, 41 S. C. Mo. 634. 198, 19 S. E. Rep. 489 ; Commissioner v. 1 Bates V. Foster, 59 Me. 157, 8 Am. Thompson, 4 McCord, 434; Bauskett v. Rep. 406. .Jones, 2 Speer, 68 ; Douthit v. Hipp, 23 Contra, McNear V. McComber, 18 Iowa, S. C. 205 ; Pickman D.Trinity Church, 12. 123 Mass. 1; Powell v. Clark, 5 Mass 2 Habig V. Dodge, 127 Ind. 31, 25 N. E. 3.55. Rep. 182; Nicholson v. Caress, 45 Ind. But relief in equity may be had by the 714 COVENANT FOR WARRANTY AND QUIET ENJOYMENT. [§§ 899-901. general description of the land, and not a special warranty o£ quantity. A covenant of title is only applicable to the lands conveyed.^ The grantee cannot recover upon his warranty on the giound that he supposed certain land was included in the description, when in fact it was not.^ 899. When by mistake the deed describes land other than that intended, it should be reformed before any action is had upon the covenants.-^ The grantee's cause of action to reform the deed is personal to him, and not a covenant running with the land, and will not therefore, without apt words of assignment, pass to a purchaser from the grantee under a deed which describes the same land described in the deed to his grantor.^ 900. A covenant that, in case of a deficiency in quantity, the grantor will convey sufficient additional land adjoining the granted land to make up the required quantity on demand of the purchaser within a time named, is restricted to land owned by the grantor, and the provision that the purchaser shall make demand within the time limited is an express condition precedent to an action upon the covenant.'^ 901. A parol warranty, or a parol promise by the grantor to warrant and defend his title to the grantee, is within the statute of frauds, and therefore void.*^ Such an undertaking is an interest in land within the meaning of the statute. Under the old common law a warranty meant an undertaking by tlie feoffor or donor of land to defend the feoffee or donee in posses- sion, and to give land of equal value in case the latter should be evicted. Under the later common law, an action of covenant was allowed for the breach of a prouiise in writing under seal. This purchaser for a material deficiency in lou^jliby ?;. Jliddlesex Co. 8 Met. 296 ; quantity where he was influenced to pay Lawrence c. Mont;^oniery, 37 Cal. 183; the price upon the grantor's niisrcpreseu- Davis ('. CIari<, 33 X. J. Eq. .579 ; Cham- tation of liie quantity. Sine v. Fox, 33 bliss v. Miller, 1.5 La. Ann. 713. W. Va. 521, II S. E. Rep. 218; Kelly "^ Winneitiseogee I'aper Co. v. Eaton, V. Riley, 22 W. Va. 247. 65 N. II. 13, 18 Atl. Rep. 171. 1 Hall V. Scott Co. 2 McCrary, 356. '' Hayniond r. Kayniund, 10 Cush. 134; 2 McCreary v. Douglass, 5 Tex. Civ. Walterliouse i'. Garrard, 70 Ind. 400 ; Mc- App. 492, 24 S. W. Rep. 367. Donald v. Elfes, 61 Ind. 279; Kelly v. 3 Axtel f. Chase, 83 Ind. 546. I'almer (Neb.), 60 N. W. Rep. 924; * Norris v. Colorado Turkey Honcstone Bi.shop v. Little, 5 Me. 362. And see Co. (Colo.) 43 Pac. Rep. 1024, citing Col- Buckner v. Street, 15 Fed. Rep. 363; lins V. Suau, 7 Rob. (N. Y.) G23 ; Wil- Kerr i;. Shaw, 13 Johns. 236. 716 §§ 00-2, 903. J COVENANTS FOR TITLE. proposition seoius to have been questioned only in the early cases in Pennsylvania, before the fourth section of the statute of frauds had been enacted. ^ 902. According to the decisions in a few States, however, a parol warranty of the quality of land is not merged in an ordinary warranty deed of it, but the grantor is liable to the purchaser for a breach of such parol warranty.^ While it is admitted that a bill of sale of personal property cannot be varied by a prior or contemporaneous parol warranty, because the writ- ing is supposed to contain all of the contract between the parties, this rule is said not to apply to an ordinary conveyance of real property, for the deed is regarded as the mere transfer of the title or delivery of the land. " The deed is evidence of the final consummation of some contract previously made, but is not evi- dence of the contract." ^ 903. The covenant of warranty or for quiet enjoyment is broken only by an eviction under a paramount title.* It is not broken by the mere claim or existence of a title paramount in another, so long as this is not asserted.^ To constitute a breach of these covenants, the grantee must show an actual disturbance of his possession by the grantor, his 1 Bell y. Andrews, 4 Dall. 152 ; George Stevens, 13 Mo. App. 240. Nebraska: V. Bartoner, 7 Watts, 530. Cheney v. Straube, 35 Neb. 521, 53 N. 2 Saville I'. Chalmers, 76 lovvii, 325, 41 W. Hep. 479; Latham r. McCann, 2 N. W. Rep. 30 ; Green v. Batson, 71 Wis. Neb. 276. New Jersey: Stewart v. Drake, 54,36 N. W. Rep. 849. 9 N. J. L. 139. New York: Boreel v. 8 Thayer v. Reeder, 45 Iowa, 272, quoted Lawtou, 90 N. Y. 293 ; Mead v. Staekpole, and approved in Saville i-. Chambers, 76 40 Hun, 473 ; Kidder v. Bork, 12 Mi.sc. Iowa, 325, 41 N. W. Rep. 30. 519, 33 N. Y. Supp. 663. Ohio : Smith t>. * Peters y. Bowman, 98 U. S. 56. Illi- Dixon, 27 Ohio St. 471. Tennessee: nois: Smith v. Newton, 38 111. 230; Hayes >: Ferr^uson, 15 Lea, 1, 54 Am. Weaver y. Wilson, 48 111.125; Barry y. Rep. 398. Vermont: Clement v. Bank, Guild, 126 111. 439, 18 N. E. Rep. 759, 61 Vt. 298, 17 Atl. Rep. 717. 28111. App. 39. Kentucky: Tryse y. Mc- ^ Allis v. Nininper, 25 Minn. 525; Guire, 81 Ky. 608. Maine : Montcomery Claflin r. Case, 53 Kans. 560, 36 Pac. V. Reed, 69 Me. 510. Massachusetts: Rep. 1062; Washinj,'ton Sav. Bank v. Kramer v. Carter, 136 Mass. 504, 507; Tliornton, 83 Va. 157, 2 S. E. Rep. 193; Funas y. Durgin, 119 Mass. 500, 20 Am. Marbury y. Thornton, 82 Va. 702, 1 S. Rep. 341 ; White v. Whitney, 3 Met. 81 ; E. Rep. 909 ; Jones v. Richmond, 88 Va. Tufts y. Adams, 8 Pick. 547 ; Sprague v. 231, 13 S. E. Rep. 414; Dickinson v. Baker, 17 Mass. 586. Michigan: Matte- Hoomes, 8 Gratt. 353, 396; Yancey v. Sony. Vaughn, 38 Mich. 373. Mississippi: Lewis, 4 Hen. & M. 390 ; Smith y. Par- Watkins y. Gregory, 69 Miss. 469, 13 So. .sons, 33 W. Va. 644, 11 S. E. Rep. 68; Rep. 696. Missouri : Barlow y. Dclaney, Rex v. Creel, 22 W. Va. 373. 40 Fed. Rep. 97, 86 Mo. 583 ; White v. 716 COVENANT FOR WARRANTY AND QUIET ENJOYMENT. [§§ 904-906. heirs or assigns, or a necessary yielding to a paramouiit title ; or, in other words, either an actual or constructive eviction. ^ 904. These covenants are broken by the very commence- ment of an action on the better title. Any entry and dispos- session adversely and lawfully made under paramount title will be an eviction ; and whenever such a right is exercised, it is con- sidered to have all the force and effect of a dispossession under legal process.^ To establish a prima facie breach of the covenant, the grantee is required merely to prove that he has either been evicted or kept out of possession by one in actual possession claiming title para- mount to his own. The presumption of title which then arises in favor of the party in possession must be overcome by proving title out of him, or both the aforesaid breaches may be deemed estab- lished by sufficient proof.^ 905. The eviction naust be from the whole or some part of the premises by title paramount."* The covenantee cannot re- cover as for an eviction from the whole of certain lands, on proof that one claiming under a paramount title had recovered in eject- ment an undivided half interest therein, as such recovery is not a constructive recovery of the other half interest. The covenant in such case is broken only as to such undivided half, and the cove- nantee would be in possession jointly with another as tenant in common with him."^ The removal of a building from tlie granted land by a tenant under a prior agreement with the grantor is. a breach of the cove- nant of warranty.^ 906. An incumbrance does not constitute a breach of this covenant until the grantee's possession is disturbed. Out- 1 Whitbeck v. Cook, 15 Johns. 483, 8 - Stewart v. West, 14 Pa. St. 336, per Am. Dec. 272 ; Sedgwick v. Hollenback, Gil)Son, C. J. 7 Johns. 376 ; Carter v. Denman, 23 N. =* Ileyn i-. Ohman, 42 Neb. 693, 60 N. J. L. 260 ; Kellot; ,-. I'latt, 33 N. J. L. W. Rep. 952. 328; Zabriskie r. Baudendistel (N. J. Eq.), ^ Ceccoui v. Uodden, 147 Mass. 164, 16 20 Atl. Rep. 163; Baudendistel v. Zabris- N. E. Rep. 749 ; Kramer v. Carter, 136 kie, 50 N. J. Eq. 453 ; Real v. Hollister, Mass. 504 ; Mooney v. Burchard, 84 Ind. 20 Neb. 112, 29 N. W. Rep. 189; Ander- 285. son V. Buchanan, 20 Neb. 272, 29 N. W. ^ McGrew v. Harmon, 164 Pa. St. 115, Rep. 935; Morgan r. Henderson, 2 Wash. 30 Atl. Rep. 265; Dewey i-. Brown, 2 T. 367, 8 Pac. Rep. 491 ; Moore v. Frank- Pick. 387 ; Gray v. Givens, 26 Mo. 291 ; enfield, 25 Minn. 540. Dawson v. Mills, 32 Pa. St. 302. 6 West V. Stewart, 7 Pa. St. 122. 717 § 007.] COVENANTS FOR TITLE. standiui:; city and county taxes at the time the deed was executed do not constitute a breach of the covenant against quiet enjoy- ment. Tlie payment of such taxes by the grantee, before any move is made to collect tlie same, is a voluntary payment, and imposes no liability upon the grantor under the covenant.^ A mortgage upon the property is not a breach of the covenant for quiet enjoyment, but the covenant is broken when the mort- gage is foreclosed and the property sold.^ " If one is content to take a deed with a covenant for quiet enjoyment only, he can have no relief until his possession is distui'bed by one claiming under a superior title. He could have no relief whatever by rea- son of the fact that thei-e was a mortgage upon the property at the time the deed was made, until the rights under the mortgage had been so asserted as to interfere with his possession ; whereas, if the deed had contained a covenant against incumbrances, a right of action would have accrued upon the delivery of the deed, if at the time there was an outstanding mortgage upon the property." ^ Thus, if there is a paramount mortgage upon the land, there is no breach of the covenant of warranty until the mortgagee or the purchaser at the mortgage sale has taken possession ; * though a voluntary payment of the mortgage when foreclosure is threatened is a breach of the covenant, the grantee in such case assuming the burden of showing that the mortgage was a paramount title.^ The recording of a certificate of entry by a mortgagee for the purpose of foreclosure is a breach of the covenant.*' 907. The covenant of warranty can never be treated as a covenant against incumbrances, for in that case, the incum- brances being in existence when the deed was made, the covenant would be broken at the time of the conveyance, and would become a mere right of action not assignable at law, and would not pass to the subsequent grantee.' 1 Leddy v. Enos, 6 Wash. 247, 33 Pac. « Jackson ik McAuley (Wash.), 43 Pac. Rep. 508. Rep. 41, per Hoyt, C. J. 2 Cornish v. Capron, ISC, X. Y. 232, 32 •* Hamilton v. Lusk, 88 Ga. 520, 15 S. N. E. Rep. 773; St. John v. Palmer, 5 E. Rep. 10; Kramer v. Carter, 136 Mass. Hill, 599; Jackson v. McAuley (Wash.), 504. 43 Pac. Rep. 41 ; McLean v. Webster, 45 ^ Sprague v. Baker, 17 Mass. 586. Kans. 044, 26 Pac. Rep. 10. 6 Furnas v. Durf.'iii, 119 Mass. 500. " Marbury v. Thornton, 82 Va. 702, 1 718 COVENANT FOR WARRANTY AND QUIET ENJOYMENT. [§§ 908-910. 908. The existence of an easement in the land conveyed is not a breach of these covenants until the right is asserted or used. It was so held even where the easement was a right of way in favor of a railroad company for its road, for the right of way might by non-user revert to the grantor.^ An outstanding equitable title which may ripen into a para- mount title is within the general covenants of warranty .^ But if the covenantee takes possession, or has power to take possession, under bis deed, he cannot complain of the outstanding equitable title until it is successfully asserted .-^ 909. The loss of an incorporeal incident of the land con- veyed, by virtue of a paramount right in another, may be a breach of the covenant of warranty and quiet enjoyment. Thus, where a mill with a dam and pond was conveyed with such cove- nants, but without any express covenant in regard to the water- power, and the purchaser, while maintaining the dam at the same height as it was when the conveyance was made, was sued for overflowing the land of another, and was compelled to reduce the height of the dam, it was held that there was a breach of the covenants. " The grantee, therefore, was not merely deprived of an easement in another's land which was not conveyed, and which his deed did not purport to convey, but ho lost b}' force of the paramount title a thing actually conveyed, included within tlie metes and boitnds of his deed, and just as much property granted by that conveyance as if it had been a particular acre of the land. Considering the subject-matter of the grant, the peculiar charac- ter of the property as a water-power and a mill-site, the existence of the dam at a height essential to that power and to the full enjoyment of the property, we hold that the deed conveyed the dam at its existing height, and tlie covenant of warranty was broken when the grantee was compelled, iji whole or in part, to take it down."* 910. The covenants of warranty and for quiet enjoyment are broken if there is an outstanding title to an easement which S. E. Rep. 909 ; "Washington City Sav. - Ungij;er ». O^rlrsby, 99 Hi. 40.'). Bank v. Tliornton, 83 Va. 157, 2 S. E. '■* Wilson v. Irish, .57 Iowa, 184,6 N. Hep. 193 ; Sheffey ". Gardiner, 79 Va. 313 ; W. R-p. .591 , 10 N. W. Rep. 343. Dic]