UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Gift of Ira N. Prisbee THE HOME LIBRARY OF LAW OTHER BOOKS BY THE SAME AUTHOR Practical Banking (llth edition) Banks and their Depositors Bank Officers Bank Collections The National Bank Act and its Judi- cial Interpretation (4th edition) The Modern Law of Banking The Elements of Commercial Law The Suspension of the Power of Alienation The Business Man's Legal Adviser Volume I The Ownership and Use of Land including Its acquisition by Deed, Descent, Will, Occupancy, Prescription, Public Grant ; also Life Interests, and Rights of Married Men and Women. of Homestead Owners, of Landlords and Tenants ; Leases, Joint Ownership and Joint Use By ALBERT S. BOLLES, Ph. D., LL. D. Lecturer on Commercial Law and Banking in Haverford College; formerly Professor of Mercantile Law and Banking in the University of Pennsylvania PUBLISHED BY DOUBLEDAY, PAGE & COMPANY JOB THE REVIEW OF REVIEWS COMPANY 1913 Copyright, 1905, by Doubleday, Page & Company Copyright, 1911, by Doubleday, Page & Company wl T 9 (3 * 1 ; r TO THE HON. MERLIN E. OLMSTED, M. C. EIGHTEENTH DISTRICT OF PENNSYLVANIA WHOSE EMINENCE AS A LAWYER HAS BEEN FITLY CROWNED BY HIS SUCCESS AS A NATIONAL LEGISLATOR CONTENTS Introduction a CHAPTER PAGE I. What is Land, or Real Property ... 3 II. Entire Ownership of Land: 1. By Citizens 16 2. By Aliens; Citizenship .... 22 III. Modes of Entire Ownership: 1. Acquisition of Land by Purchase. Deeds. 42 2. Acquisition of Land by Descent . . 86 3. Acquisition of Land by Will ... 93 4. Acquisition of Land by Occupancy and Prescription ..... 107 5. Acquisition of Land by Accretion . . 115 6. Acquisition of Land by Public Grant . 118 7. Acquisition of Title by Estoppel . . 121 8. Abandonment of Land . . . .127 9. Acquisition of Land by Legal Process, Attachment and Execution . . 128 IV. Modes of Limited Ownership: 1. By Tenant or Occupant for Life . . 150 2. By Husband as Tenant by the Curtesy . 163 3. By Widow as Dower .... 167 4. By Homesteaders 1 73 5. By Lease; Landlord and Tenant . . 178 6. Tenancy from Year to Year . . . 225 7. Tenancy at Sufferance . . . .229 8. By Joint Tenants and Tenants in Com- mon 231 vii INTRODUCTION 1. Different governments under which the people live. 2. Public and private laws. 3. Both apply to many acts. 4. But not in an unvarying manner. 5. Threefold division of the law defining private , rights and duties. 6. Ignorance of the people respecting them. 7. Why the law is generally obeyed. 8. Consequences of failure to know the law. 9. Purpose of this work. 10. Origin of legal rules. 11. Custom or usage. 12. Judge-made law. 13. Statutes. 14. Interpretation of statutes. 1. EVERY individual in our country lives under three^ forms of government national, state, and local; and his rights and duties as a member of each are defined by constitution, by statute and by common law. 2. Besides the laws defining the legal relations which exist between government and its members are other laws defining the legal relations between the people themselves. These laws are very numerous and in ix x INTRODUCTION many respects touch the people more closely than the laws denning their public relations. 3. Many of the acts of individuals are double- sided are both public and private. Thus, should the cashier of a bank rob it, he would be a debtor to the institution for the money stolen; also a wrong-doer to the public and answerable for his offence. Even if he should become repentant and refund the money stolen, he would be just as liable as before to arrest, trial and condemnation. It is true that the officers of a bank, after such an offence has been committed, are often willing, for the sake of recovering a por- tion, or all, of the property stolen, to overlook the misdeed and to protect, as far as they can, the crim- inal from punishment. In truth, they cannot give any legal protection; but they may darken the pathway of the public prosecutor by withholding testimony. Another illustration may be given. A assaults B, boxing his ears. The wrong-doer is liable to B for the damage, the payment of money, which is the legal balm for the wound often a poor medicine, but the most effective the law can prescribe. Yet A, however pri- vately he may have acted in assaulting B, has com- mitted a public offence, and no settlement with the in- jured man can prevent the state, through the public prosecutor, from arresting, trying and convicting him for his misdeed. The individual, or private remedy, which consists in recovering money for the injury done, is called the civil remedy; the public action or prosecution by the state, INTRODUCTION xi the criminal remedy, and may result in imprisonment, or fine, or both. 4. This double-sidedness of human action from the legal point of view covers a large breadth of human conduct, but is not unvarying. The state may declare a misdeed, for which only a money damage could pre- viously be recovered, to be a public or criminal offence, and punishable in the same manner as other public offences. Thus, not many years since, the buyer of merchandise who misrepresented his wealth for the purpose of obtaining credit was liable only in a private action for the damage or injury caused by his deceit; now, very generally, he can be tried and punished as a criminal. On the other hand, criminal offences are sometimes abolished; punishments especially are les- sened. That the consequences of wrongful conduct are seen with ever-increasing clearness to affect the public, as well as one or more particular individuals, and therefore to be deserving of proper legal con- demnation, while punishment for many of the older offences are observed to be diminishing in severity, are sure marks of advancing wisdom in administering justice. 5. The private rights and duties of individuals per- tain to the acquisition, use, and disposition of property; to the association of individuals in various ways for the same purpose; and to the establishment and mainte- nance of social and industrial relations. Hence the law defining these rights and duties has a threefold division. The larger division defines the rights and duties of individuals in acquiring, using, and disposing of their property; a second division, of rapid growth and im- xii INTRODUCTION portance, defines the rights of individuals to associate as partners, corporators, and in other ways, to hold, use, and enjoy property; while a third division defines the rights of individuals to form social relations, such as husband and wife, as master and servant, and the like, and then defines their rights and duties with respect to their conduct, their contracts, the acquisition and en- joyment of their wealth. The private rights and duties of individuals, thus outlined, it is our purpose to set forth in the following pages. 6. In executing the law, the officers of the govern- ment assume that every man knows it; he cannot, there- fore, shield himself by confessing his legal ignorance. Nevertheless the laws are so numerous and conflicting that not all are known, even by the most intelligent men. In truth, only a few of the laws are known generally by the people. 7. Why, then, are not infractions more frequent? The answer is, that the intelligence and good sense of the people lead them to pursue a course of conduct in harmony with the law; so, without actual knowledge, they walk, for the most part, in the straight legal paths. 8. Yet there are many occasions when one's intelli- gence utterly fails to discover the legal rule. On these, the sure path can be known only by inquiry. For this reason, an actual knowledge of the law is a daily ne- cessity to escape unintentional wrongdoing. The non- possessor who relies on his sense of right is sure to fall into unhappy and costly errors. For example, a person who receives a check from another is required by law to present it to the bank on which it is drawn, within a INTRODUCTION xiu \ specified time, for payment. A receiver who disre- gards this rule and retains the check for a longer period, as is often done through forgetfulness, assumes the risk of loss; and, should the bank on which the check is drawn fail, he cannot go to the person who gave it to him and ask for another. How long then can he keep it without releasing the drawer? One's sense, however keen, can never answer the question. Only by actual knowledge of the legal rule can the receiver know how long he can safely retain the check and hold the drawer or maker liable. Nothing less than an actual knowl- edge of the law, therefore, can serve as a sure guide for individuals in their conduct with one another in their business and other relations. 9. In this work, it is our purpose to state all the more important legal rules or principles that apply to persons individually, or to those who are associated with others in the ways recognised by society. It is not our pur- pose to state every rule; for this would be quite im- possible. Besides, the law is a vast body of rules, that, like the sea, are never at complete rest. Courts and legislatures are always changing them; hence no man at any particular moment of time can ever present a complete exposition. But we assume that the intelli- gent members of society, both men and women, are desirous of knowing what they can, and cannot, do in the numberless relations of daily life; and the most im- portant and abiding of these rules it will be our pur- pose to describe. 10. Whence are the legal rules that apply to us de- rived? First, they may be divided into two kinds or riv INTRODUCTION classes: statutes and common law principles. The statutes are enacted by legislative bodies; the common law rules are emanations of judicial tribunals. From what source do the courts obtain them; are they law- makers as well as administrators of the law? 11. The first and most important source is custom. A farmer once sold a mill owner a large quantity of timber, for which the seller was to be paid a stipulated price per foot. After the timber was cut and delivered at the place appointed, a day was set for measuring it. The farmer was surprised on learning that the buyer proposed to apply a mode of measurement quite un- known in the vicinity, which would lessen the quantity about one-fifth. He declined to accept that mode of measuring, and a lawsuit resulted. Had the parties agreed to a specific mode of measurement, of course they would have been bound thereby; not having done so, the court declared that it must have been their intention to be governed by custom; therefore, the question for the court to ascertain was, what custom prevailed. In time, this was clearly found out and declared, and it thus became a rule of law. Very many of the rules of the common law have their origin in this manner. They rest on custom which, through proper inquiry, is clearly ascertained and declared to be bind- ing on all the persons within a state, where the custom is general; or within a narrower jurisdiction, where the custom is local. 12. Another source of the common law is the court itself. There are many occasions in which no rule of law exists to apply to a particular set of circumstances. INTRODUCTION xv This is especially so with respect to questions growing out of new business relations; the use of the telephone and the telegraph, for example. A few years ago there were several questions of this nature resulting from the use of the bicycle. To some of them, old principles were applied; to others, the courts adopted such rules as the exigency required. In so doing, the courts did not pass beyond their proper function; yet they make laws as truly as legislators in Congress, and, were they not endowed with this right, society would suffer. 13. Besides these two great sources of the common law, we have also mentioned the statutes, some of which modify the rules of the common law; others are an addition to them. Recently, a statute has been adopted in about twenty-five states regulating the law of negotiable instruments. In most regards, this law is founded on the common law, and is in harmony therewith; but, whenever adopted, it supersedes the common law; and henceforth individuals living in those states must look to that, so far as it can serve as a guide, and no longer $0 the common law that existed before its enactment. 14. Lastly may be mentioned legal decisions that are interpretations of statutes. There are many of these. Some statutes are the cause of constant questioning and answers. No statute can be written so plainly as to preclude all possibility of dispute. Such, in brief, are the sources of the legal rules that are to be set forth in this work for the benefit of all who wish to know their legal rights and duties. THE HOME LIBRARY OF LAW CHAPTER I WHAT IS LAND, OR REAL PROPERTY i. Difficulty in defining land. . The importance of understanding the difference between real and personal property. 3. Real property is land. 4. When ice is land. 5. Things annexed by man. 6. Growing crops. What rule applies between seller and purchaser. 7. The rule that applies to a devisee. 8. When growing trees are personal property. f . Trees standing on a division line. 10. Things easily removed. 11. Surface and mine below, owned by different persons. 12. Land of a corporation. 13. Church pew. 14. Cemetery lot. 15. When money is real property. 16. Intention, in determining the question of the value of property. 17. Use, in determining the question. 18. Different rules apply to persons in different relations. 4 BUSINESS MAN'S LEGAL ADVISER 1. PROPERTY falls into two great divisions, real and personal; and, while the differences between them on the outer boundaries are clearly seen, as they approach each other these differences lessen until one is in doubt whether a particular thing, for example, a cooking- range in a house, is real or personal property. Never- theless, as both kinds of property exist, we must seek to show what they are. 2. Why is this knowledge important? A stranger, by the permission of a land-owner, builds a house on his land. There may be some agreement between them concerning it, though not in writing. The land-owner sells the land, and the purchaser, soon after talcing possession, enters the house and astonishes the occu- pant by saying it belongs to him. After stating his agreement with the seller, the buyer replies that he knows nothing about it; that he bought the land which includes everything thereon, that if any wrong has been done, the seller is the guilty party to whom the house- builder must look for redress. Thus, what is meant or included by the terms, real property and personal property, is important to all who are concerned in their sale, management, or ownership. 3. Real property is land extending indefinitely up- ward and downward. It includes every structure and everything growing thereon naturally. In like manner, all minerals are included, even an aerolite that falls from the heavens. 4. Ice is sometimes included, but not always. 1 Ice on a navigable river, whose bed belongs to the state, See Chap. IV., Section n, n. WHAT IS LAND, OR REAL PROPERTY 5 belongs to the first appropriator. This may be done by taking the ice, or by clearing off the snow from the surface, marking the ice, or making any other prepara- tion for harvesting the cooling product. And the same rule applies to ice on public ponds. Ice on a non-navigable river belongs to the owners of the adjoining land, because they are also the owners of the bed of the stream. The line of division between them, which is presumably the middle of the stream, determines the ownership of the ice that forms on the surface. To a navigable stream, owned privately, and not by the state, the same rule applies as to a stream not navigable. The same rule, slightly qualified, applies to land- owners along a canal. They, too, can harvest the ice formed on the water running through their land, pro- viding this does not interfere with the public use of the canal. But, when the state has condemned and taken the land used for the canal, it is the absolute owner, and the adjoining proprietors have no more rights in the land, water, or ice than they have in any other public property. 5. A.different principle applies to things annexed by man. Many of these, as the result of annexing them, form a part of the land itself; while other things retain their former character and are personal property. In the sale or lease of land, it is often difficult to decide whether the things thus added are transformed into realty and become a part of it, or whether they are still personal property belonging to the person who put them on the land. 1 1 Sec 16, 17 of this Chap, and Chap. IV., Section 5, 33 for a fuller con- sideration of this subject. 6 BUSINESS MAN'S LEGAL ADVISER 6. Questions often arise in conveying land on which crops are growing. Do these pass to the purchaser? The more general rule is, annual crops planted by the seller pass with the land on which they are growing; crops that are mature, awaiting the reaper, do not thus pass, unless they are mentioned in the deed of con- veyance. 1 Growing annual crops may be the subject of a valid oral sale, and the vendee has an implied license to enter and take them. Should the vendor afterward sell the land itself and say nothing about his prior sale of the crops, the crop-buyer, if the purchaser had come into possession, would lose the right to enter and take his crops. He would not be without a remedy, however, for he could proceed against the vendor, who, through accident or fraud, had deprived him of the right to take his crops away. 7. A different rule applies to a devisee, or person who inherits land by will. He takes the crops with the land, whatever be their state of maturity, unless they are needed to pay the debts of the testator. If they are, then they pass to the executor like other personal property, and are devoted to the payment of the testa- tor's indebtedness. 2 8. Growing trees may be cut down and thus con- verted into personal property; or, on the sale of land, may be reserved for the purpose of cutting and remov- ing them. In the latter case, should the owner die before cutting them, the administrator or executor of 'Washburn on Real Property, n. Vol. I., p. u (6th Edition). * Pattison's Appeal, 61 Pa., p. 294. WHAT IS LAND, OR REAL PROPERTY 7 his estate would take possession of them as a part of his personal property. Again, the owner of land who sells trees growing thereon to another by a proper written conveyance, with the liberty to cut and carry them away, parts with an absolute interest in them, while the .land itself remains in the seller or grantor. 9. What rule applies to a tree standing on or near the boundary line, with roots and branches extending into the land of the adjacent owner? The fruit belongs to the owner of the land whereon the tree grows; and he can reach over and pluck it, if his arms are long enough, without infringing the law of trespass. He can even stand on the fence and do this. But he cannot go on his neighbour's land, without permission, for this pur- pose. If he did, the law would pronounce him a tres- passer. The reader may t.hink that the distinction is very fine between reaching over into another's land and plucking fruit, and going on another's land and plucking it; the law is replete with equally subtle dis- tinctions. If the first rule be true, the reader may ask, what becomes of that greater rule stated in the be- ginning, that land includes everything above and below? On the other hand, the adjacent owner has a right to lop off the branches and roots of a tree to the dividing line. The body of a tree that happens to stand on the dividing line is the common property of both; neither can cut it down without the other's consent; nor even cut away the portion on his own land, should the tree thereby be injured. 10. Things easily moved may become real property. 8 BUSINESS MAN'S LEGAL ADVISER This is especially so of things used in connection with real property that are useless after severing them. For example, a key to the door of a house is an essential part of the door itself, and is, therefore, really like the land whereon the house stands. In like manner, the doors, windows, blinds, and other portions of a house that are readily removable, the mill-stones of a mill are all parts of the structure to which they belong, and, on its sale, they pass with the structure itself, because, on the one hand, they are essential thereto; on the other, they would be of no use to the grantor were they retained by him. Other illustrations of the same nature are hop- poles piled in a yard, fence-rails, and loose stones used in wall-building. While the application of this rule to many things is very plain; to others its application is difficult. For example, the animals employed in husbandry farming utensils, plants, doves in the dove-cote are still often matters of legal contention on the sale of land. 11. Sometimes a mine or quarry is owned by one person, and the surface by another. When this double ownership of land exists, it is the duty of the mine owner to guard the surface from injury by sinking. To this extent, the subterranean or mining property is subservient to the surface. In other words, where the upper and underground are owned by different in- dividuals, the maxim of the law that applies to each one is, he must not use his own in a way that will injure the other. 12. As land owned by a corporation is real property, in a few cases the shares of the corporation itself are of WHAT IS LAND, OR REAL PROPERTY g a like nature. Generally, they are personal property. But, when the land held by a corporation belongs to the stockholders, and the corporation is only a manager, the shares are real property. This is true also of the shares of a corporation created solely for holding, using, or improving real estate. 13. In some states, a church pew is real property; in others, personal property. Unless one's rights are regulated by statute or positive law, his interest is limited or qualified; a right of occupancy under some restrictions. He has an absolute and exclusive right to the possession and enjoyment of it for the purpose of public worship, and may maintain an action against any invader. Should he assign or lease it, the new occupant would have a right to occupy only during public worship, for that purpose and matters relating thereto. A tramp, therefore, could not, by leasing a pew, acquire the right to convert it into a place of shelter; nor a peanut vendor, a stand for selling his favourite fruit. The annual renter of a pew "has at most only a lease-hold interest for the term." "The English ecclesiastical law forms the basis of the law regulating the affairs of the Episcopal Church in this country, and is in force, except as modified by statutes and the usages and canons of the church." All the other religious societies have special laws, usages, and local customs that regulate, to a very considerable extent, the rights and duties of the pewholders. The trustees of a free church, charging for the sit- 1 Kerr on Real Property, 5 36, p. 34. io BUSINESS MAN'S LEGAL ADVISER tings, have authority to decide where attendant shall sit, "and may, by force, remove one who persists in sitting in a place other than that assigned to him." 1 The absolute sale of a pew does not give the pew- holder an absolute right to the property, as would the sale of a piece of land. He gains "simply a right to occupy, under certain restrictions, the pew during public worship of the congregation, and, possibly, of sitting therein at meetings of the society held for temporal purposes." Having no title to the soil beneath the pew nor to the space above, he cannot build a vault in the earth, nor decorate the pew in harmony with his tastes, however artistic or grotesque they may be. Again, the rights of a pewholder of a church that has been destroyed by fire, or abandoned, are gone. So, too, after the sale of the edifice or the ground, he cannot share in the proceeds. Nor can he compel services to be held in the church, or prevent its abandonment; or the rebuilding of another. Lastly, a writer has declared that a congregation which abandons its meeting-house as a place of public worship although it be fit for that purpose, and erects a new one on a different site, is not liable in any way to the pro- prietor or lease-holder of a pew in the old meeting-house, unless the society acted wantonly, or sought to injure him. 2 As a society possesses such large rights to sell, re- move, rebuild, and the like, its rights to make repairs, however extensive they may be, are paramount to the rights of the pewholders. i Kew on Real Property, 38, p. 35. * Ibid, 43, p. 38. 14. One who purchases, and has conveyed to him, a lot in a public cemetery does not acquire the fee there- to; only an easement or license to bury therein. So long as he is in the rightful possession of the lot, he may maintain an action against a trespasser, and es- pecially against one who enters and disinters the remains of a person buried there; in some states, this is made a penal offence. The common law recognizes a right of property in a shroud, or apparel of the dead, as belonging to the person who had charge of the funeral. In Indiana, the bodies of the dead belong to, the surviving relatives in the order of inheritance, like other property, and the courts possess the power to protect the relatives in the exercise of the rights of burial. In Minnesota, a widow recovered damages for the dissection of the body of her deceased husband. In Pennsylvania, it has been held that a widow's control of the body ceases at burial, and, therefore, the disposition of it belongs to the next of kin. In Rhode Island, the courts have decided that a widow has a right to recover the body of her lamented husband when it has been buried by the next of kin in a particular cemetery against her wishes. The burial of a dead body in a cemetery lot is the only possession necessary to create a complete owner- ship of the easement and render it heritable. Again, so long as a gravestone marks a place for burial, the possession is adverse to all other claimants. The paramount right of burial is in the surviving husband or widow. 1 1 See the recent case of Pettigrew v. Pettigrew, 207 Pa., 313, for other points and references. 12 BUSINESS MAN'S LEGAL ADVISER A person who has erected in a cemetery lot a grave- stone or monument, which is defaced or removed during his life-time, may receive damages from the wrong-doer. And when this is done after his death, the heirs of the person in whose memory the stone was erected can maintain an action against the defacer. The rightful possessor of a lot may transmit it to his heirs at law. Possession once established, unless voluntarily given up, continues as long as the graves are marked and the cemetery is used for that purpose. As the right of burial is not an interest in the soil, if the friends of a person buried there are required to remove his bones, because the ground can no longer be used for this purpose, they cannot recover any com- pensation. Usually, cemeteries are subject to public regulations. The purchaser of a lot acquires no title to the land; simply the exclusive right to bury therein so long as the cemetery is used for that purpose. The right, therefore, "is revocable whenever public neces- sity requires." A person's exclusive right to the possession of a spot of ground in a public cemetery in which his dead are buried is limited to the time during which the ground is used for burial purposes, therefore, when the ceme- tery is discontinued and the bodies are to be removed, notice should be given to the party interested therein, if he is known, and if he fails to remove the remains their removal by others must be done in a decent manner. The right to bring an action to recover damages for unlawfully removing remains from a WHAT IS LAND, OR REAL PROPERTY 13 grave does not rest on such facts as the erecting of a headstone, raising a mound over the grave and the like, but on the right of an easement or license. 1 15. Sometimes money, the most fluid of all things, partakes of the character of realty, or of the incidents and attributes of real estate. Money, which by agree- ment is to be invested in land, equity regards as land; vice versa, land which is to be converted into money, as money. Again, a man who, in his will, directs that land shall be sold and the money paid over to an alien, may have his wish executed, though the alien could not have taken the real estate. 1 6. The two most important rules to apply to the question, whenever it arises, whether a thing should be regarded as real or personal property, are intention and use. Intention is inferred from the nature and mode of annexing the thing and the situation of the annexor; his relation to the land, and the policy of the law. A house, for example, built on another's land with his permission, is, between the parties, the builder's per- sonal property; 1 otherwise, it belongs to the owner of the land. Again, a structure erected by a tenant during his tenancy, by virtue of an agreement to remove it before he goes away, is his own personal property, and he has a right to remove the structure at the expiration of his lease. A, who was a land-owner, agreed with B that he might build a barn on his land. B was to hire the barn 1 Note, 75 Am. St. Rep. 430. 1 Kerr, 67, p. 63. i 4 BUSINESS MAN'S LEGAL ADVISER and remove it whenever he desired. Afterward, A sold the land to C, they agreeing that the barn should not be included in the sale and conveyance. C sold the land to D, saying nothing, either through forgetfulness or design, about the barn. D, supposing the barn passed to him by the conveyance, insisted on retaining it; and the court decided that he was the owner, un- affected by the agreement made by former owners. Of course, a different principle would have applied had he known, or believed, that B had built it by virtue of an agreement with A. B, therefore, was deprived of the ownership of his barn, for D was an innocent purchaser. B had a claim against C for its value, but a claim of this kind against another who may be worth- less is a poor equivalent for the thing itself. 17. The use to be made of things is often important in determining whether they are real or personal prop- erty. Thus, the blinds of a house that have been fitted, and are temporarily off at the time of the sale for the purpose of painting or repairing them, pass with the sale of the house itself, and, for the reason that perhaps they could be used nowhere else. In like manner, a farmer who has a large quantity of cut timber on his land, and especially who has been in the habit of selling it, may remove it within a reasonable time, because no use could be made of a large quantity of timber on the land itself. The quantity, as well as the ordinary practice of the farmer, would be decisive in fixing the nature of the timber. On the other hand, if he was in the habit of cutting timber occasionally for the purpose of converting it into fences or boards \ WHAT IS LAND, OR REAL PROPERTY 15 for farm use, this would be equally conclusive of his intention concerning a few sticks that might happen to be lying on the ground at the time of the sale. Another illustration of the same nature is the exist- ence of a quantity of peat, wood, or other fuel on a farm at the time of its sale. If the quantity is small, the law presumes that it was prepared for use on the land, and it goes to the purchaser; if the quantity is large, the opposite presumption will be applied, and it will be retained by the vendor as personal property. A curious case may be added; that of a landowner who quarried a large stone, designed for a tomb out- side his farm, and sold his land, giving the purchaser notice of his intention. This stone, as the court held, was his personal property, though it remained in that place for more than thirty-five years after selling his farm. 18. It may be noted that, in describing the things that are on the dividing line between real and personal property, we have been looking at those which con- cern sellers and buyers of land. Between landlords and tenants, mortgagors and mortgagees, and other parties, different rules apply; which will be hereafter given. CHAPTER II ENTIRE OWNERSHIP OF LAND i. BY CITIZENS 1. Land may be owned absolutely. 2. Meaning of entire or absolute ownership. 3. Who can hold it. Aliens. 4. Corporations. 5. Words needful in a deed. 6. What words in a will. 7. When lands given by will are a gift. 8. When gift lands may be taken for donor's debts. 9. An absolute owner's right to sell. 1. THE law relating to real property was brought from England, and bears many marks of its feudal origin. Though it has not been modernised like the law concerning personal property, yet many elaborate and technical principles have been swept away, leaving a residue easier to comprehend. 2. By absolute or entire ownership is meant the largest and most complete dominion one can possess in land. Generally, the word estate is used in the law books instead of ownership to indicate one's interest in land. The usual phrase to indicate an 16 ENTIRE OWNERSHIP OF LAND 17 absolute estate, or unlimited, unrestricted owner- ship, is "fee simple." No one, in truth, can acquire absolute dominion, because the state, notwithstanding the large freedom enjoyed by everyone, possesses an undoubted right to take land for public purposes; or rather, to use it as the public needs may require. Thus, as we all know, the state is taking lands for roads, buildings, water reservoirs; and, as civilisation expands, other public uses may arise. Vast quantities have been taken for railroad purposes under the right, as it is called, of eminent domain. In other words, a rail- road corporation is a public instrument or agency to such an extent that the state permits the taking of such lands as may be needed for the proper and effective execution of its purposes. Another illustration may be given. Fifty years ago, some of the New England states authorised the manufacturing companies to acquire the right to flow land belonging to individuals for the purpose of acquiring water-power. This authority had its origin in the inability of manufacturing companies to purchase the rights of flowing land on reasonable terms, or, in truth, on any terms whatever. Perhaps it is the largest invasion of the right of absolute owner- ship of land ever exercised in this country, and the courts, on more than one occasion, have questioned the legality of the proceeding. Yet the absolute, unrestricted ownership of land is unknown in this country or in any other. Nevertheless, in a practical sense, individuals are the absolute owners of a large i8 BUSINESS MAN'S LEGAL ADVISER portion of our country, acquired, as we shall soon learn, in various ways. 3. Let us begin by inquiring who can acquire or hold real property. Possibly, the reader may think that everybody has this right, yet there are some limitations. There was a time, indeed, when aliens were under various restrictions; and some of the early laws on this subject are curious reading, remembering that those who made them had been in the country only a few days or weeks longer than those to whom they were applied. Long ago, most of the states enacted laws providing that aliens who were, or in- tended to become citizens, might acquire and hold real property like other persons. 4. Some restrictions are also placed on corpora- tions in purchasing and holding lands. By the com- mon law, a corporation could hold and dispose of real property for any purpose not inconsistent with the object of its creation. By general or special statute, a broader restriction has often been placed on corporations. Generally, their right to acquire and hold real estate is determined by their charters, or by legislative enactment. A national bank, for example, is permitted to hold real estate for its banking- house. It may acquire real estate in the discharge of a debt; but, whenever this happens, it must sell the land at the end of five years by auction, unless it is fortunate in selling sooner by private sale. In other words, a bank is not chartered to deal in real estate, and the law will not permit the association to depart from the real object of its creation. In like ENTIRE OWNERSHIP OF LAND 19 manner, a railroad company, though possessing special rights to acquire land or an interest therein for the purpose of building its tracks, stations, and offices, cannot purchase real estate with the same freedom as an individual. It could not, for example, invest its surplus in real estate as absolute owner, with the view solely to a future profitable sale. Very likely railroads and other corporations transgress to some extent this provision of their charters; their transgressions, however, do not change the law. Again, though a corporation may transgress its fundamental law in making improper or illegal pur- chases, a vendor cannot complain and seek to recover the lands he may have sold, should they rise in value, on the ground that the corporation had no right to purchase them. First, because he, too, is a joint sinner in selling to the corporation; second, because if anyone has been wronged, it is the state, which alone has the right to call the corporation to account for its misdeed. 5. In acquiring the absolute ownership of land by a deed or written conveyance, to gain a perfect title it is necessary to use the word "heirs." The title thus acquired is known as a "fee," or "fee simple." It is one of the old terms that has come down to us from the rugged feudal age. This is a very arbitrary rule or principle. "Still," as an eminent author has remarked, "it is as imperative, as a rule of law, now as ever. No synonym will supply its place. Even a grant to 'one and his heir' will give him only a life estate, or to one 'or his heirs'; or to one and 'his heirs so BUSINESS MAN'S LEGAL ADVISER during the life of another,' or to one 'forever,' or to one 'and his assigns forever.' " l Yet the rule is not quite so arbitrary. In an ab- solute estate given to one by a legislative grant, the word "heirs" is not needful to convey such an estate. An intention to create it, clearly shown by any form of expression, will suffice. By statutes, also, in many states, it is not necessary to use the word "heirs" to create an absolute estate. Any equivalent words may be used that clearly show the grantor's intention to convey such an estate to the purchaser. Again, this strict rule does not apply to a grant or conveyance of land to a trustee for the benefit of others. He acquires the needful estate for the proper execu- tion of his trust and no more, without regard to the words used in the deed. Thus, a grant to A and his heirs as a trustee for the life of B conveys an estate to the trustee for B's life only. Again, a grant to A in trust to sell conveys an absolute interest; in other words, A can sell and convey an absolute title to the buyer. 6. In conveying land by a will, a more liberal prin- ciple prevails. In these cases, the intention of the testator is regarded and creates the rule. This is enough to convey an absolute interest without the use of the word "heirs." Thu, the use of the words "all," "right," "property," "inheritance," "in fee simple," have proved sufficient to transfer an abso- lute title in the property devised without using 1 Washburn, 53. ENTIRE OWNERSHIP OF LAND 21 the technical words required in a deed of con- veyance. 7. Again, one to whom lands are given by will, that are charged with the payment of money, will hold them as an absolute gift; for the testator in- tended to make him the object of his bounty. Other- wise, the recipient might die after paying the money and lose the whole benefit of the devise. 8. Lands held absolutely, or "in fee simple," are subject to the debts of the owner, as well after his death as during his life. This is a radical departure from the old English law. Says Lord Romilly in his Auto- biography: "The heir's right to the real property of his ancestor ought not to be disappointed by the claims of creditors." ' From this rule, a logical development of the feudal system, the reader can mark the long advance which subordinates the wishes and rights of the heir to the just claims of creditors. 2 9. One of the most important incidents of a "fee simple," or absolute estate, is the unrestricted right of sale. This right, so long of slow growth, is now as firmly established as any other principle of law. A limited, reasonable restriction on the right of sale or transfer will be upheld, and the purchaser or grantee may forfeit his estate by violating it. Thus, in a devise to A and his heirs, a limitation may be made that, if A in his lifetime fails to convey the land, it shall go to another person, who is named. Such a 1 Vol. II., p. 380. See Section a, xi. 2 See note x, Williams on ReiJ Property, p. 81 (6tb American Edition). 22 BUSINESS MAN'S LEGAL ADVISER limitation would be valid. But a condition restrict- ing the right to sell to a single person only would be void, as he might happen to be incapable of purchasing. 2. BY ALIENS; CITIZENSHIP 1. Aliens. How classified. 2. On what does citizenship depend. 3. Children born abroad of American parents. 4. Limitation to above rule. 5. Our laws cannot affect persons living under another jurisdiction. 6. Naturalisation is a federal function. 7. Merchant seamen. 8. Soldiers. 9. Who cannot be naturalised. 10. Females are included. 11. First step; Declaration of one's intention. 12. Declaration of minor. 13. Effect of declaration. 14. Length of residence required. 15. Meaning of continued residence. 1 6. Where application should be made for admission; Requirements. 17. Applicant's moral character. 1 8. Foreign title must be renounced. 19. Rights acquired by widow and children of applicant. 20. Private citizen can take no action to set aside an order of admission to citizenship. 21. Federal government can act. 22. Effect of naturalisation on children. ENTIRE OWNERSHIP OF LAND 23 23. Effect of marriage by foreign woman to American citizen. 24. Husband need not have been an American at time of marriage. 2 5 . Effect of marriage by an American woman to an alien . 26. Effect of alien husband's death on citizenship of an American wife. 27. Effect of her divorce from him. 28. Naturalisation by treaty. 29. Disabilities of alien land ownership. i. An alien is one born out of the United States, who has not been naturalised under the Constitution. Aliens may be classified as residents and non-residents, alien friends and alien enemies. Foreigners by birth are pre- sumed to be aliens. By the Federal Constitution and laws alien friends are entitled to the same protection of their rights as citizens. Thus he may maintain an action to recover possession of his land, or to have it divided, or to enforce the sale of land on which he holds a mortgage debt. In Pennsylvania a resident alien friend may deal as freely in all forms of property, whether personal or real, "as any natural-born citizen," therefore he may become a stockholder in a Pennsyl- vania corporation. A non-resident or alien friend stock- holder takes his shares with all the rights and privileges which pertain to them in the hands of a citizen; he may vote on them, and if no other qualification besides ownership is required of directors, he may become one. 1 1 Taylor v. Carpenter, 3 Story, 458. Commonwealth v. Detwiler 131 Pa., 614. 24 BUSINESS MAN'S LEGAL ADVISER 2. Every nation determines for itself who shall, and who shall not, be its citizens. By the laws of some states, citizenship by birth depends upon the place of birth; by the laws of others, citizenship de- pends upon the nationality of the parents. The latter is called the law of nations because it is the rule in many of them. In the United States both rules exist, but more generally the former. By numerous decisions the law is clearly established that the chil- dren born to foreigners, in the United States, are citizens of the United States. 1 3. Citizenship is also conferred on children born in foreign countries whose fathers were at the time of their birth, citizens of the United States. The federal statute provides that "all children born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States." 2 But if a child is born after his father has hi any way expatriated himself, he is to all intents and purposes an alien and not entitled to the protection of the United States. 4. If the father was born abroad and has always resided there his child is not a citizen, for the statute says that the rights of citizenship shall not descend to children whose fathers never resided in the United States. 3 "This limitation," says Van Dyne, "of the privileges of citizenship to the children of citizens who have resided in the United 1 Re Look Tin Sing, 10 Sawyer, 353. 8 U. S. Comp., 1901, 1993. Ibid. ENTIRE OWNERSHIP OF LAND 25 States was designed to prevent the residence abroad of successive generations of persons claiming the privileges of American citizenship while evading its duties. 1 " 5. Again, while our government may confer the rights and privileges of its citizenship on persons born of American parents in other countries, "it can- not extend its jurisdiction beyond its own territorial limits so as to relieve those born under and subject to another jurisdiction from their obligations or duties thereto; nor can it, by undertaking to confer its citizenship upon persons who have never come within its territory, interfere with the just right of the foreign government to control its own subjects." 2 6. In the United States by the Constitution, the naturalisation of foreigners is a purely federal function. This has been denned to be the act of adopting a foreigner and clothing him with the privileges of a citizen. And the effect of naturalising one is not affected in any way by the laws of the applicant's country. It is immaterial whether he had, or had not, permission to emigrate from the country of his origin. 7. Merchant seamen also are favoured. Every seaman, though a foreigner, who declares his inten- tion of becoming an American citizen hi any compe- tent court who shall have served three years on board of a merchant vessel of the United States subsequent to the date of such declaration, may, on his application to such tribunal and the production of his certificate of discharge and good conduct during that tune and 1 Citizenship of United States, p. 34. 2 Secretary Fish to President, Van Dyne, p. 35. 26 BUSINESS MAN'S LEGAL ADVISER also the certificate of his declaration of intention to become a citizen, be thus admitted. 1 This provision was applied thirty years ago to a native of France who had declared his intention to become a citizen of the United States, and who subsequently served as seaman and steward on American merchant vessels for more than twenty years. He claimed the pro- tection of the United States from arbitrary arrest and imprisonment by the Spanish authority of Cuba, and it was promptly regarded. The Department of State interfered in his behalf and ultimately he received $5,000 as a recompense for the wrong thus inflicted on him. 8. Any alien of the age of twenty-one or older who has enlisted and been honourably discharged from the United States Army, may be admitted to citizen- ship without any previous declaration of his intention. A somewhat different rule applies to those who have served in the navy or marine corps. The former must serve "five consecutive years," and the latter "one enlistment." * 9. Not all aliens can be naturalised. The first exceptions are the citizens or subjects of a "country, state, or sovereignty" with which the United States are at war. A Spaniard, for example, could not have been naturalised during the war with Spain. "The courts have," says Van Dyne, "at different times, held that neither Chinese, Japanese, Hawaiians, Burmese, nor Indians can be naturalised." 3 1 U. S. Comp. 2174. 2 Stat., 2166. 1 Van Dyne, p. 57. ENTIRE OWNERSHIP OF LAND 27 10. Naturalisation laws include females as well as males. And an alien wife may be naturalised with- out the consent of her husband. 11. The first step in the process is to declare one's intention. The applicant must declare on oath, be- fore "a circuit or district court of the United States, or a district or supreme court of the territories, or a court of record of any of the states having common law jurisdiction and a seal and clerk, two years at least, prior to his admission, that it is his bona fide intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty."' This declaration can be made immediately after his arrival in this country. Having declared his inten- tion, he is then entitled to a certificate, containing a copy of his declaration, duly attested by the clerk and seal of the court. Besides the specific courts above mentioned, others are included having common law jurisdiction. The term is broad enough to include city, police, and country courts which preserve their records and have a recording officer who acts as clerk. 12. A different rule applies to a minor. If he has lived here three years "preceding his arriving" at the age of twenty-one, he may then "make applica- tion to be admitted a citizen," ' without having made a declaration of his intention, and two years after- ward he may be admitted. i U. S. Comp. IQOI, 216$. Stat., $ 2167. 28 BUSINESS MAN'S LEGAL ADVISER 13. This declaration of intention has no effect either in the way of naturalising or expatriating the appli- cant. He simply records his intention to renounce his present allegiance on becoming a citizen of the United States. He still remains an alien until his naturalisation is completed. "The law, justly re- garding a change in his allegiance by a foreigner as an act of grave importance, wisely provides that there shall be two steps in the process. By the first, the purpose of change is announced. Between this and actual naturalisation the lapse of a considerable interval is required in order that the final step may be taken with due deliberation." ' "Can the declaration of intention," inquires Van Dyne, "confer any right of citizenship? While the laws of several of the states of the Union extend the right of suffrage to aliens who have declared their intention to become citizens of the United States, a state cannot make the subject of a foreign govern- ment a citizen of the United States, or confer on him the rights and privileges appertaining to such citizen- ship." J As the Circuit Court of Appeals has said: "A state may confer* on foreign citizens or subjects all the rights and privileges it has the power to bestow, but when it has done all this, it has not naturalised them. They are foreign citizens or subjects still, within the meaning of the Constitution of the United States." ' Consequently if he goes back to his native country he returns as one of its citizens or subjects. 1 Secretary Fish, quoted by Van Dyne, p. 67. *Ibid., p. 67. Minneapolis v. Reum, 6 C. C. A., 31. ENTIRE OWNERSHIP OF LAND 29 An illustration may be added in the way of showing an application of this principle. A Turk who had declared his intention contemplated a visit to his native land, and inquired of the Secretary of State if he could count on the intervention of the United States in his behalf. Mr. Bayard replied that so far as his political rights were concerned a mere dec- laration of intention to become an American citizen would give him "no title to claim the intervention of the United States." Just before the Cuban insurrection of 1869 many Cubans declared their intention to become citizens of the United States, and afterward returned to Cuba. The United States consul at Trinidad interfered in behalf of some of them and asked the Department of State to approve his action. But the Secretary could not. In his reply he said: "It has been re- peatedly decided by this department that the declara- tion of intention to become a citizen does not, in the absence of treaty stipulation, so clothe the individual with the nationality of this country as to enable him to return to his native land without being necessarily subject to all the laws thereof. In the present un- happy state of things in Cuba the Secretary of State can see no reason for departing from so well established and so wise a rule." Mr. Van Dyne adds that in a few instances the Department of State has held that the declarant acquires, by his declaration of intention, a quasi right to the protection of this government while in a third country. 14. Before an alien can acquire citizenship here it 30 BUSINESS MAN'S LEGAL ADVISER must "appear to the satisfaction of the court admit- ting such alien that he had resided within the United States five years at least." ' The reason for this re- quirement is obvious. During this period he can learn more perfectly whether he wishes to transfer his allegiance. "Persons," says Secretary Fish, "who may have declared their intention to become citizens often change their mind and fail to carry that inten- tion into effect." Besides, he must reside here con- tinuously. "No alien," so the statute declares, "shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission, resided within the United States." ' 15. What is meant by continued residence? Van Dyne, after remarking that the word residence means a person's habitual physical presence in a country or place, thus continues: "In its broad sense it means a place of abode, selected with the intention of remain- ing permanently or for an indefinite period. Taken in its broader sense, temporary absence from the United States, upon business or pleasure, might not be incompatible with continued residence here. The sole criterion would be the intention of the party. To determine this it would be proper to take into consideration the length of absence, its purpose and the circumstances surrounding the case." ' In 1868 this question arose in a case under the treaty between the United States and the North German Confederation. The Attorney- General asserted that *U. S. Comp., 1901. 2165. *U. S. Comp., 1901, 2170. Van Dyne, p. 83. ENTIRE OWNERSHIP OF LAND 31 the residence of an applicant for naturalisation would not be interrupted by a transient absence for business, pleasure or other occasion, with the intention of re- turning. On the other hand, to return to one's original country and engage in business would negative such intention. Therefore, as Van Dyne says: "a temporary absence from the United States should not defeat the intention to become an American citizen," but he adds, "a study of the history of our naturalisation legislation does not clearly show this to have been the intention of Congress." It appears, therefore, that absence for any length of time raises the question. "If the applicant," says Senator Berrien in one of the debates on the subject, "is absent any part of the time, it remains for the court to decide whether that absence is sufficient to prevent the issuing of the certificate." Van Dyne thus sums up the law: "If the facts and circumstances of the absence, as shown in the particular case, indicate no change of intention on the part of the applicant, it is the duty of the court to issue the certificate, with- out requiring such time to be made up. If there is evidence showing abandonment of intention, the applicant should be refused, and the party should be required to begin de novo." 1 6. The application for admission to citizenship should be made before the clerk of the court to which the preliminary declaration may be made. He must declare on oath that he will support the Constitution of the United States, and that he absolutely renounces all allegiance to every foreign prince or power. To 32 BUSINESS MAN'S LEGAL ADVISER support the Constitution clearly implies that he must have some knowledge of and regard for it. Therefore if he is without a proper understanding of it, his oath should not be accepted. Van Dyne states two cases not in complete harmony on this important matter. In the first, it was declared that "one who cannot read or write English but has read the Constitution in a foreign language, and knows that the United States has a president, but cannot mention his name, does not understand the principles of the government of the United States or its institutions sufficiently to become a citizen." 1 In the other case "an alien who was ignorant and unable to read and write, and who could not explain the principles of the Constitu- tion, was entitled to be naturalised, where it was shown that he was peaceable, industrious, of a good moral character and law-abiding." 2 The statute also provides that it shall be made to appear to the satisfaction of the court admitting such alien that he has resided within the United States five years at least, and within the state or territory where such court is at the time held, one year at least; and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same; but the oath of the applicant shall in no case be allowed to prove his residence. 3 Courts therefore require the testimony, under oath, 1 Re Kanaka Nian, 6, Utah, 259- 2 Re Rodriguez, 81 Fed., 337. Stat, 3165. ENTIRE OWNERSHIP OF LAND 33 of at least two citizens of good standing that of their own knowledge the applicant has been a resident of the United States five years at least, and of the state or territory wherein his application is made, one year. 17. What must he possess in the way of a moral character? He must not have been guilty of murder, robbery, theft, bribery, or perjury. Habitual gaming or selling of liquors, where forbidden by the statute of the state wherein the applicant lives, would be a bar to his admission. An anarchist also is 'excluded. 1 18. The statute also provides that "in case the alien applying to be admitted to citizenship has borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility in the court to which his application is made, and his renunciation shall be recorded in the court." 2 19. When any alien who has made a declaration of his intention to become a citizen "dies before he is actually naturalised, the widow and the children of such an alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such, upon taking the oaths prescribed by law."' It need hardly be added that the declara- tion of intention and death of the declarant do not confer citizenship on the widow and minor children. They must also take the oaths required in other cases for admission to citizenship. 1 See cases cited in Van Dyne, 31, p. 92. *Stat., 2165. 'SUt., S 2168. 34 BUSINESS MAN'S LEGAL ADVISER 20. A private individual has no standing in court to institute a proceeding to set aside an order admit- ting an alien to citizenship. 1 21. But if a decree of naturalisation has been ob- tained in a fraudulent manner in a state court, the United States can seek to have it cancelled by a federal tribunal. But the United States denies the right of a foreign government to impeach a certificate of naturalisation issued by an American court. 22. The statute also provides that the children of persons who have been duly naturalised under any law of the United States, or who, previous to the pass- ing of any law on that subject by the Government of the United States, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years at the time of the naturalisation of their parents, shall, if dwelling in the United States, be considered as citizens thereof and the children of persons who now are, or have been, citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof. 1 But the naturalisation of a parent does not confer citizenship on his minor children born abroad before that event and who continue to reside and attain their majority abroad. A emigrated to the United States from Germany in 1869 and was naturalised here in 1884. The next year he sent for his son, who was seventeen years old, Re McCarren, 8 N. Y. Misc., 482. Stat., 4171. ENTIRE OWNERSHIP OF LAND 35 to join him. The son was arrested just before start- ing and afterward discharged. A sought the inter- vention of our government, but the Secretary of State replied, that as the son did not emigrate with his father to America and therefore was not here at the time of the father's naturalisation, "and has not at any time since been a resident of the United States, he cannot be considered a United States citizen. Our laws require that the children of persons who have been naturalised here must be dwelling in the United States to be considered citizens thereof." 1 23. By statute "any woman who is now, or may hereafter be, married to a citizen of the United States, and who might herself be lawfully naturalised, shall be deemed a citizen." ' This language is broad enough to include any white woman or woman of African nativity or descent, or Indian woman. 24. The question has been raised, must the husband be a citizen at the time of the marriage, or will his sub- sequent naturalisation have the same effect? The highest legal tribunal has given a clear answer: "His citizenship, whenever it exists, confers, under the act, citizenship upon her. The construction which would estrict the act to women whose husbands, at the time of marriage, are citizens, would exclude the far greater number, for whose benefit, as we think, the act was intended." ' Must an alien woman, in order to be naturalised by marriage to an American citizen, have resided in this 1 See Bayard, 'quoted in Van Dyne, p. 114. Stat.. 1994. KelJy Y. Owen, 7 Wall., 496. 36 BUSINESS MAN'S LEGAL ADVISER country for five years? On several occasions jurists have divided on this question, but the negative view, maintained by Attorney-General Williams of the United States, is decisive. The statute, however, so Mr. Olney, Secretary of State has maintained, "cannot operate to naturalise by indirection or by executive interpretation a person who is an alien by birth and origin, who has never been within the juris- diction of the United States and who at the time may be dwelling within a foreign jurisdiction." 25. While an alien woman may become an American citizen by marrying an American, is the opposite rule true, that an American woman becomes an alien by marrying a foreigner? Van Dyne describes many cases in which the question has arisen, and shows that the answer has not been uniform. Yet he concludes that "the decided weight of authority is to the effect that the marriage of an American woman to an alien confers upon her the nationality of her husband." An English author, Cockburn, wrote thirty years ago "that in every coun- try, except where the English law prevails, the nation- ality of a woman on marriage merges in that of her husband; she loses her own nationality and acquires his." Since then the English law, has, by statute, been harmonised with that of other nations. 26. What is the consequence of her husband's death? does she still remain a foreigner? Van Dyne says: "The tendency of opinion seems to be in favour of allowing the woman, upon the death of her husband, to resume her American citizenship, if she desire, on 37 condition that she return to the United States, if residing abroad." ' This statement of the rule or prac- tice may be reinforced by Cockburn, who says: "Pro- vision is made, in all the continental codes, for enabling a woman whose nationality of origin has been changed into that of her husband, to resume, if so minded, her original nationality on becoming a widow; on the condition, however, if not resident in the country of origin, of returning to it." 27. One point more should be noticed. Does her absolute divorce from her husband affect her citizen- ship in the same way as the death of her husband? This question arose on the application of Mrs. Daisie Annie Newman Van Buren for a passport. She was the daughter of an American citizen and had married a Dutch baron. Like so many other American women married to foreign barons who have proved to be bears or worse, the marriage relation was severed and she returned to this country. The answer to the inquiry was given by Mr. Hay, Secretary of State, to the Amer- ican minister at Berne, Switzerland. " In accordance,' ' the Secretary says, "with the view which the Depart- ment has taken in several cases, when an American woman marries an alien, her condition from the stand- point of nationality is lost in that of her husband, as long as the marital union lasts. Upon its termination she may resume the nationality of her birth by re- turning to the United States to reside, if residing abroad, or acquire a new one. In this case Mrs. Van Buren's status under the laws of the Netherlands calls for no 'Page 139. 398371. 38 BUSINESS MAN'S LEGAL ADVISER consideration. She does not live in that country, nor does she, apparently, intend to do so. Her divorce having been lawfully obtained, her marital relations with Baron Van Buren having ceased, her domicile being bona fide in this country, you may properly issue a passport in her favour." 28. Lastly, persons have been naturalised on several great occasions by treaty. The most noteworthy of these are the treaty of 1794 with Great Britain, with France in 1803, with Spain in 1819 and 1898, and with Mexico in 1848 and 1853. The status of the Porto Ricans and Filipinos under the last treaty with Spain has been the subject of most elaborate exposition by the highest federal tribunal in the so-called Insular cases. 29. At common law an alien may acquire real estate by deed or devise, but cannot hold it against the state. The sale to such a purchaser is a cause of forfeiture to the state in a proceeding established for that purpose if it chooses to act, 1 if it does not act, the alien purchaser may maintain a suit for land thus acquired like any other person.' An alien may also acquire real estate from the state by legislative action, and a deed or patent may be issued to him by the proper officer. The right to acquire, hold and dispose of real estate may be granted to aliens by the United States by treaty, or by statute, and in most of them nearly all the disabilities affecting resident aliens by the common law, have been re- Wright v. Saddler, ao N. Y., 320, 324. 'Gray v. Kauffman, 82 Tex., 65. ENTIRE OWNERSHIP OF LAND 39 moved. By the Nebraska constitution "no distinc- tion shall ever be made between resident aliens and citizens in reference to the possession, enjoyment or descent of property." Non-resident aliens, how- ever, are regarded very differently. Thus, in Idaho aliens who have not declared their intention to become citizens cannot acquire farming lands. Again, aliens may enforce liens and judgments against real property and may also inherit it; but, if it be not sold within five years, it escheats or belongs co the state. In Illinois, too, although an alien may acquire real property like citizens, it escheats to the state, unless he becomes a citizen within six years from the time of acquiring ownership. In other words, the policy of the state is to permit anyone to acquire and hold real property and to give him all the time neces- sary for becoming a citizen. If, on the other hand, he refuses to become a citizen, he is divested of owner- ship a regulation which seems to be, in every way, wise as the permanent ownership of real property ought not to be vested in persons residing in other countries. In Iowa non-resident aliens may acquire and hold one hundred and twenty acres of real property, but no more, unless it is taken by devise or descent. When thus acquired it may be held for twenty years. At the end of that time it escheats to the state, unless it has been conveyed to a bona fide purchaser for value, or unless the alien has become a resident of the state. The law in Kansas may be thus stated: A man may acquire real property if he has declared his intention 40 BUSINESS MAN'S LEGAL ADVISER of becoming a citizen, and may, during the succeeding six years, dispose of it in the same manner as a citizen on complying with the conditions of registry. Non- resident aliens, however, are debarred from acquiring the title to real estate, except by descent or devise; and when thus acquired, they must dispose of the same within three years, unless they are minors, who have two years longer. Should they not comply with the law, it escheats to the state, unless it has been sold to a bona fide purchaser for value. Minor aliens who are residents of the United States may acquire title to land by purchase, and may hold it for six years after declaring their intention to become citizens. In Kentucky an alien may take by devise or descent, and hold the land for eight years. In Louisiana there are no statutory restrictions on aliens relating to real pronerty. In Minnesota aliens who have not declared their intention to become citizens cannot acquire real property except by devise or inheritance. The law there does not apply to right by treaties or to actual settlers who do not own more than one hundred and fifty acres. They may also acquire and hold lots of fifty feet frontage by three hundred feet deep in any incorporated city. In Texas a somewhat different regulation prevails. Resident aliens have the same rights as citizens, but if they discontinue their residence they must dispose of their real estate within ten years. In Washington the ownership of lands by aliens who have not declared their intention to become citizens is prohibited, except when acquired by inheritance, by mortgage, or in the regular course of justice in collect- ENTIRE OWNERSHIP OF LAND 41 ing a debt. Conveyances to, or in trust for, aliens also are void. But this prohibition does not extend to mineral lands and those necessary for their de- velopment. In Wisconsin non-resident aliens cannot acquire by purchase more than three hundred and twenty acres. In Nebraska "no non-resident, alien foreigner who has not declared his intention to become a citizen of the United States, nor any corporation or association not incorporated under the laws of the state shall acquire or own, hold or possess, by right, title or descent accruing hereafter, any real estate in the state of Nebraska." 1 Lastly may be mentioned Wy- oming, in which non-resident aliens are not permitted to acquire any real estate, except by inheritance, or in the ordinary course of justice in collecting a debt. From this review of the rights of aliens, it will be seen that the laws are extremely liberal, and aim at giving those who reside here and intend to become citizens the same rights as are enjoyed by the citizens themselves. The chief restriction is on non-residents the law aiming to give them a few years in which to dispose of land that may come to them by inheritance or other- wise, and prohibiting them from retaining its perma- nent ownership. This is the general underlying idea of the legislation pertaining to aliens. 1 Laws of 1887, Ch. 65. CHAPTER III MODES OF ENTIRE OWNERSHIP i. ACQUISITION OF LAND BY PURCHASE. DEEDS 1. Agreement to purchase must be in writing. 2. What this must contain. 3. When an oral bargain can be enforced. 4. Money paid can be recovered. 5. Law of place of location governs the parties. 6. Kinds of deeds: a. Quit-claim, b. Indenture, c. Warranty, d . Lease. 7. On what a deed must be written. [ 8. Filling blanks. 9. Alterations: a. Unimportant alterations, b. Are they presumed to be made before or after the delivery of the writing? c. The safe practice. 10. Lost deed. 11. Deed by minor: a. Is his deed void or voidable? 6. What is a confirmation? c. Illustrations. 42 MODES OF ENTIRE OWNERSHIP 43 12. Deed by insane person. 13. Deed by executor or administrator. 14. Deed by married woman. 15. Execution of deed through fraud. 16. Names of grantor and grantee should appear in deed. 17. Grantee must exist: a. Deed to fictitious person, b. To an estate of a person, c. To future estates immediately given, d . To estate in remainder, e. To trustee of future estate, /. To an unorganised corporation. 18. Need of seal: a. No one need be present when affixed, b. Several may use same seal, c. Seal of corporations, d. What is a seal? 19. Witnesses. 20. Execution by agent or attorney. 21. Mode of signing. 22. Reading of deed by grantor. 23. Dating. 24. Delivery: a. Test of, is control, b. Deed must be complete, c. May be actual or verbal, d. Delivery by, or to, a corporation, e. Delivery to unknown grantee, /. Delivery of deed containing a condition, g. To what time title relates, 44 BUSINESS MAN'S LEGAL ADVISER h. Deed of confirmation, *. Effect of delivery between parties. 25. Acceptance. 26. Delivery of deed as an escrow. 27. Recording. 28. Rights of parties between delivery and recording. 29. Acknowledgment. 30. It is a ministerial act. 31. Reason for acknowledging certificate. 32. Nature and effect of certificate. 33. Acknowledgment by married woman. 34. Effect of defective acknowledgment. 35. Authority of person to take it. 36. Acknowledgment taken in foreign country. 37. Only owner of land can acknowledge it. 38. Evidence to explain deed. 39. Correction of deed. 40. Description: a. Monuments control courses and distances, b. Kinds of monuments, c. Which kind is of highest value, d. Monuments that mark public lands, e. Monuments that mark a city lot. 41. Boundary by non-navigable stream. 42. Boundary by tidal navigable stream. 43. Boundary by non-tidal navigable stream, 44. Boundary by a lake. 45. Boundary by a highway. 46. Boundary by a private way. 47. Boundary by a park. 48. Quantity. MODES OF ENTIRE OWNERSHIP 45 49. Reference to other deeds. 50. What passes. 51. Covenants: a. Number, b. Covenant of right to convey, c. Covenant of possession, d. Covenant against encumbrances, e. Covenants for quiet enjoyment and war- ranty, f. Special covenants, g. Implied covenants, h. Covenant does not protect purchaser from surety, i. Distinction between real and personal cove- nants, j. What covenants are personal, and what real, k. Tendency is to regard covenants as real, I. What particular covenants run with the land, m. Covenants concerning encumbrances, n. Covenants concerning quiet enjoyment, o. Covenants concerning right to convey, p. Damage for breaking a covenant. s. ONE of the most common ways of acquiring land b by purchase. After making an oral bargain, the preparation and delivery of the deed is often delayed for several days, or a longer period. If there is no written memorandum of the bargain it is possible for either party to decline to fulfil his part of the agree- ment, and the other is powerless to enforce it. Morally 46 BUSINESS MAN'S LEGAL ADVISER of course, this is wrong; but the law can do nothing unless the oral bargain was reduced to some kind of writing. 2. What must this writing contain? By a statute, essentially a copy of an English one, the writing must describe the land sufficiently to identify it; and must be signed by the person whom the other seeks to hold.' A better form of writing is signed by both parties, and then each can hold the other. They can sign with a lead pencil; even a stamped signature will suffice. An agent can sign for his principal. The writing need not express the amount or consideration that is to be paid for the land. A letter or series of letters from which the terms of a contract can be collected will satisfy the law. 3. Notwithstanding this statute, there are cases in which an oral bargain can be enforced. This may seem to be an overthrow of the statute itself. When parties have actually made an agreement to convey, and the vendor or seller has actually transferred the possession to the vendee, this is such evidence of a purchase or transfer that the courts will recognise the transaction and compel its full performance. If the agreement were not carried out by the vendor, there would be manifest fraud, and the vendee would be a trespasser. In such cases the courts compel the vendor to execute his promise and to give a deed to the other party to whom he has sold his land. Possession by the pur- chaser is always an indispensable element in such a legal proceeding. 1 For a more complete description of the sUtnte, see Vol. III., Chap., si. Section 3, subdivision 5. MODES OF ENTIRE OWNERSHIP 47 To this rule there is one exception. Between a land- lord and a tenant possession would be no evidence of a contract of sale, because the tenant is occupying under a lease. 4. The payment of purchase money is not sufficient proof of an agreement to sustain an action for com- pelling the execution of the contract. Once the law was otherwise; courts acted on such evidence and com- pelled the other party to perform his agreement. Experience proved that this was a dangerous practice. Sometimes a fraud was committed by maintaining that money was given in part payment for the land, when, in truth, it was given for something else. So the courts finally abandoned this ground; therefore, when money is now paid, instead of compelling the vendor to fulfil his promise by giving a deed, he is required to refund the money. 5. It is a maxim of the law that the title to lands can be acquired or lost only by the laws of the state where they are located. The rule has been recently thus expressed: "No man has any vested right to dispose of any property, by whatever title he holds, in any other way than that by which the law prescribes." 6. In conveying land by one individual to another several kinds of deeds are in use: (a) First may be mentioned a release or quit-claim deed, whereby the grantor or seller conveys or parts with whatever interest he may have in the land con- veyed. This deed is signed only by the grantor, and becomes effective by delivery to, and acceptance by, the purchaser. 48 BUSINESS MAN'S LEGAL ADVISER (b) The second kind of deed is known as an inden- ture. This is signed by all the parties. In many cases copies are made corresponding with the number of parties or individuals signing the instrument. (c) Thirdly may be mentioned a deed of warranty, which may e in form like a quit-claim deed, or a deed of indenture with additional stipulations, called cov- enants, that are of the highest importance. These covenants give the deed a higher character than that of a release or quit-claim; and for that reason it is generally used in conveying real estate in nearly every state of the^ Union. (d) In conveying an interest in land for a short period the writing is called a lease, though it is also a deed, but differing in many ways from those above mentioned. 7. A deed must be written, so it is said, on parch- ment or paper; this is not strictly true, for, if one were written on stone, as were the laws of Moses, it would doubtless answer the law. Nor does the law require accuracy or precision in the use of words, or obser- vance of grammatical rules. Any writing from which the intention of the parties can be clearly gathered is sufficient by the modern law. 8. It is a fundamental principle that the writing must be completed before delivery, and that additions, alterations, erasures, or interlineations must be made before the delivery of the deed. If made afterward they either avoid the instrument, or are of no effect. Says Washburn: "If the contract thereby evidenced is an executory one, any material alteration made by MODES OF ENTIRE OWNERSHIP 49 the holder or a stranger will avoid it, unless done by consent of the maker, or without the knowledge and assent of the holder." ' 9. (a) A different rule applies to unimportant alterations. Thus, a lessee, after the lessor's death, altered the words "E Street" to "W Street"; this was not a material alteration, because other parts of the lease showed that the original should have been "\V Street." We are now going on dangerous ground Such alterations will stand only when they are not material, or clearly appear from other parts of til instrument to be its true purpose or design. Thus, a mortgagee who, without the other party's knowledge, increases the amount of the consideration, thereby invalidates the mortgage. A grantee who admits an alteration of his deed by himself, but with the grantor's consent, must prove that such consent was given. (b) What is the legal presumption concerning the time of making them before or after the delivery of the writing? Different rules have been declared. Perhaps the Missouri rule is as rational as any other that may be applied. The law will presume that the alteration was made before, or at least contempora- neously with, the signing of the writing, unless peculiar circumstances of suspicion are evident upon the face, and even then the whole question is one for the jury to settle upon the facts, what and where and with what intention the alteration was made. (c) The safe practice is, in all cases after making the erasure or alteration, to note it in some way on the 1 Washburn on Real Property, 2094, p. 220 (6th Edition). So BUSINESS MAN'S LEGAL ADVISER writing itself, showing that it was made before its de- livery. 1 By every good conveyancer such a clause is added. 2 10. The loss of a deed after its delivery does not destroy the title of the grantee. A court of equity will establish the possession of a party who claims title under a lost deed, or grant such relief as the circum- stances of the case may require. Again, in such a case should the purchaser fail to prove his title, but should prove the loss of his deed and the payment of the money he may recover it, or, if the title of a part should fail, he can recover a part of the money he has paid. 1 11. Not every person is legally capable of making a deed. Of these, minors may be mentioned first. They cannot make a conveyance of real estate beyond attack or questioning. The courts differ widely concerning the worth of such a conveyance. (a) Some affirm that such a deed is voidable; in other words, the minor, after attaining his majority, can set it aside or declare he will not be bound thereby, as he pleases. Other courts declare that such a deed is void absolutely; is of no more account than a piece of waste paper. The general tendency of the courts is toward the doctrine of voidability; wherever this prevails, the transaction, after the minor becomes of age, may endure. 1 Washburn, 3097, p. 223. * Devlin says: "Where there has been a material alteration in a deed, the deed to the extent of such alteration has become a new deed, and the al- teration may be of such a character as entirely to change the original deed. It should, therefore, to give effect to the alteration, be redelivered, and, if it has been acknowledged before alteration, should be again acknowledged." 462a, Vol. I., p. SQ3- 8 Q4 Am. St. Rep., 469. MODES OF ENTIRE OWNERSHIP 51^ (b) In these states, the question arising in every case, after a minor has attained his majority, is, has he taken any action to show whether he has avoided or confirmed his deed? Whether he has done so or not is a question of ordinary fact. Time, often, is very important in answering this question. If, for example, a minor who has given a deed takes no action to avoid or set it aside months after attaining his majority it is held that he approves or ratifies his action. Forget- fulness to act will not suffice. But, if he were sick at the time of attaining his majority the law lengthens the period for acting. (c) Many illustrations might be given of the ratifi- cation of deeds by minors. In one of them, in which a tenant had occupied a house for six years after the lessor became of age, the courts held that he had thereby ratified the lease. In another case acquies- cence for four years was deemed sufficient. In Vermont a minor who wishes to avoid his deed made in infancy must do so within reasonable time after coming of age. Likewise, in Connecticut, neglect to disaffirm the deed within a reasonable time after at- taining majority is sufficient evidence of ratification. In Missouri a grantor, after attaining his majority, expressed himself satisfied with his former act, and promised to execute a confirmatory deed, but ten months afterward died before doing so; this was a ratification. In Massachusetts the courts say any distinctive act or recognition is competent evidence of a ratification. 12. The deeds of insane people fall nearly in the 52 BUSINESS MAN'S LEGAL ADVISER same category as those of minors. They are not capable of giving deeds absolutely binding on them. It is sometimes declared that they cannot receive a deed for the same reason. 13. Executors and administrators are, to some ex- tent, disqualified from acting. As they act in a rep- resentative capacity, they can go only so far as the law prescribes. Trustees, technically so called, can act only in a limited way, and if they exceed their limitations are either bound personally or not at all. 14. Married women are also in this category. For- merly, their right to act was extremely limited; by statute, in all the states, larger rights have been given to them to convey their property. Nevertheless, as we shall hereafter learn, they have not as complete rights as unmarried women. Again, neither husband nor wife can make a conveyance directly to each other. It is true that property is often conveyed by one to the other, through the medium of a third person, not by direct action. In many states a married woman can now convey her own property without joinder of her husband's written consent expressed in the deed, except so far as this may be necessary to defeat his right as tenant by the curtesy. 1 This would seem to be essentially the same limitation as the law attaches to his right to convey his real estate, for, in many states, he cannot do this without her written consent. In other words, he cannot cut off her right of dower without her volun- tary action. As the states have prescribed by statute '.See Chap. IV., Section 2, for a description of tenancy by curtesy. MODES OF ENTIRE OWNERSHIP 53 the rights of a married woman to make contracts, in- cluding her authority to part with her lands, nothing further need be said on the subject in this place. Formerly, she could not appoint an attorney to convey her land for her. By the modern rule, where- ever she has the right to sell her land, independently of her husband, she can exercise this authority by an attorney. There has been a great deal of learning expended on this subject, but, in one of the federal cases, Justice Peckham said there was no particular reason, when a wife can convey directly, why she cannot authorise another to do the act for her. "The reasoning which would prevent it is, as we think, too technical, fragile, and refined for constant use." * 15. The deed of one who is induced by the fraud of a grantee is not void but voidable. The grantor may rescind the contract within a reasonable time after discovering the fraud, repay the consideration, and demand the recovery of his land. 1 6. In making a deed the names of the grantor and the grantee should appear; sometimes mistakes are made, for conveyances are often written by persons who have a very imperfect knowledge of the mode of preparing and executing such writings. The law looks at the substance of things rather than at technical forms; consequently, a deed in which the name Edward appears in the earlier part, but which is signed Edmund, is valid. Another principle, quite in harmony with this, has been adopted; one who accepts a deed in which his name is not correctly stated or spelled is 1 Williams v. Paine, 169 U. S., 67. 54 BUSINESS MAN'S LEGAL ADVISER deemed to have adopted that name for the purpose of acquiring and holding the title to the property. The omission of a person's middle name will not vitiate a deed, for the law requires only one Christian name. Since the time of William the Conqueror, a full name consists of one Christian name, or given name, and one surname or patronymic, the two, using the Christian name first and the surname, constituting the legal name of a person. Anyone may have as many middle names or initials as are given to him, or as he chooses to take. They do not affect his legal name, and may, or may not, be inserted in a deed without affecting its legal validity. For the same reason a mistake in the middle initial of the name is not material in legal proceedings, nor is a similar omission in the acknowledgment of a deed which contains the letter in the body of the deed itself. To call a person senior instead of junior, as intended, or vice versa, does not affect the validity of a deed. Again, to describe a person by the character given to him by general repute will suffice, even though it is not the literal truth. Likewise, to call a man by the name he is usually called, though this differ from his baptismal name. But a deed to, or by, a person by a surname only, without something to show who was intended, would be void. 17. Property must, at all times, have an owner; it is impossible for one person to part with his ownership unless there is another person to take it from him. Consequently, a deed to a person having no existence passes no title from the grantor. MODES OF ENTIRE OWNERSHIP 55 (a) A deed, therefore, to a fictitious person is void. But a distinction exists between a fictitious person and a person existing with a fictitious name. In the former case the deed is worthless; in the latter, if the true person can be ascertained, the title to him will pass. (6) A deed to an estate of a named person is a nullity, for it does not name a grantee who is in being and capable of taking the estate conveyed. And a deed conveying property to the children of a named person will be effective in conveying to children who were living at the time of executing the deed, but will not include children born afterward. Furthermore, a deed to children who should be alive at a certain date would be absolutely void. (c) To sustain an immediate estate there must be an existing person. Indeed, it would be a contradiction in terms to attempt to grant such an estate to a person not in existence. (d) But an estate in remainder, or a future estate, may be granted to a person who is njt then living. For example, an estate to A and his children or his heirs, though there be no children or heirs in existence at the time of making the conveyance, is valid. The unborn grantee must appear during the continuance of the present or intermediate estate, or at the moment of its termination, otherwise there is no one in exist- ence to whom the remainder can descend, and it would be void. (e) Sometimes a future estate is created through the medium of a trustee. The present immediate estate is given to the trustee, who is to hold it for a given period, 56 BUSINESS MAN'S LEGAL ADVISER or until other persons appear to whom the future estate is to go. In these cases the trustee is said to hold the legal estate, and the beneficiary the equitable. This mode of conveying property has played a promi- nent part in both American and English law, and will be fully considered hereafter. (/) A deed to a corporation not yet organised, and consequently not actually existing, is a nullity, for there is not a grantee capable of taking it. This is the general rule, though, in some states, a deed to an un- incorporated company, which is to come into being at an early date, may be valid. Cases of this kind oc- casionally happen in this country; in England they are frequent. 1 8. It is a universal practice in all cases to affix a seal to a conveyance of land, and even to all leases. (a) It is of no importance in affixing the seal whether the grantor or grantee, attorney, or stranger, were present; the essential thing is to do this before the delivery of the writing. (6) Any number of grantors may use the same seal. A deed prepared for several to execute, to which only a part of them append seals to their names, will be valid provided it be properly delivered by the signers. Of course, it will not bind those who do not sign. If it is signed by all and asserts that the grantors have affixed their seals, and there are not as many seals as names, the law presumes that sbme of the signers have adopted the seals of the others. This is one of those numerous presumptions which play such an important, and generally useful, part in the law. 57 (c) A corporation need not use its corporate seal in executing a deed; the use of any seal will suffice. This is not the law everywhere; the federal courts, especially, hold that a corporation must use its cor- porate seal and affix it by competent authority. Furthermore, a corporate seal may be impeached by showing that it was affixed by a person without au- thority. (d) What is a seal, to some extent is an open ques- tion. The true significance of one has largely passed away. Formerly, seals were used by the great land- owners when conveying land, as the highest proof of their action, because generally they were unable to write their names. As every person had a seal of his own, the mark was quite as distinctive as a written signature. Since most persons now know how to write their names, a seal has less significance. Con- sequently, either by statute or common law, the use of L. S. enclosed in brackets, thus [L. S.], is often as effective as a seal of wax or a wafer. 19. In nearly all states the names of the witnesses who have attested its execution are subscribed to a deed. By the common law an attestation was not required to give validity to a deed, nor is this required even by statute in all the states. It is, though, a general practice. In many states, by statutory requirement, every deed must have one or two sub- scribing witnesses; without them the deed is invalid. Thus, in Michigan, where two witnesses are required, a deed attested by only one was declared to be not a legal conveyance. 58 BUSINESS MAN'S LEGAL ADVISER A witness need not see a party to a deed write his name. It is enough if he asks the witness to subscribe to the attestation clause, and the latter complies in the signer's presence. Witnesses to deeds cannot, like witnesses to the wills of testators, express opin- ions concerning the capacity of the signers; they can merely testify to the fact of signing as a witness, nothing more. 20. A deed may be executed by a grantor, or by his agent or attorney. When executing a deed in the latter manner, an attorney must have ample authority of a character as high as that of the deed itself. Gener- ally, he is given authority by a sealed writing, called a power of attorney, and this, also, is recorded like the deed he executes. By thus recording the authority of the agent to act, the record of the transaction is made complete. The authority of corporations to execute deeds and hold real estate depends on their charters and the general statutes of the state. 21. Formerly, the courts were exceedingly strict in construing the precise form of signing. Thus, a deed signed by a man as attorney or agent, without stating the name of the principal, was regarded as the deed of the agent or attorney, and the additional word, attor- ney or agent, was rejected as surplusage. The books are full of deeds condemned by reason of the attorney's failure to follow the precise legal form. Without reviewing these, the matter may be cut short by say- ing that the modern courts regard the intention of the signer. When, therefore, the fact clearly appears that MODES OF ENTIRE OWNERSHIP 59 a person is acting as agent or attorney for another, and not for himself, his intention will be given to the writ- ing. Had this broad and rational principle been adopted earlier many a deed would have been construed very differently. As towns, cities, and other public bodies must act by attorney, the deeds signed by their attorneys are regarded in all cases as the acts of the bodies they represent. 22. It is not necessary, under ordinary circumstances to read a deed to the grantor, and, as he is presumed to know its contents, he cannot avoid it on the ground of ignorance. "A deed cannot be avoided in a court of law except for fraud in its execution, or other fraud or imposition practised upon the grantor in procuring his signature and seal." 1 A different rule, though, must be applied to a person who cannot read, or who is blind or ignorant. He can insist on having the deed read to him, and, if this is not done, or if it is read falsely, or its contents are falsely stated, it may be set aside. 23. A deed is dated, and this is presumed to be the time of the execution and delivery. In indentures the date is usually at the beginning; in single deeds, at the end. Notwithstanding this presumption, proof may be given to show that the date inserted was not the true date of its delivery. Again, it is said that a date is immaterial, and, consequently, a deed would not be affected if the date were impossible, like the 3oth of February. 1 3 Washbura, 5 2141* See Truman v. Lore, 14 Ohio, St., 144, 15$. 60 BUSINESS MAN'S LEGAL ADVISER 24. Delivery is essential to render a deed valid; but, like so many other apparently simple matters in the law, it is not always easy to determine what is a delivery. To effect a delivery two things are needful. The grantor must give up control of the deed, and the gran- tee must actually accept it, and thereby accept the estate therein conveyed. Consequently, to render this action valid, both the grantor and the grantee must at that time be capable of thus acting. The delivery of a deed after the grantor's death is not effective. 1 (a) So long as the grantor retains the legal control of the deed, the title does not pass. Though a deed may be completed in every respect, except actual de- livery, the transaction is not effective until this is done, and in good faith. Therefore, were a deed taken out of a drawer by a thief and delivered to the grantee named therein, no title would pass to him from the grantor. (b) Again, the instrument must be complete. When, therefore, it is given to another for the purpose of ascer- taining whether it is satisfactory or not, or of doing something in connection therewith to make an examination of the title, for example this is pre- liminary to final action, and has no effect in the way of a final delivery of the instrument. 1 "A valid delivery is accomplished when the conduct and acts of a grantor manifest a present intent to dispose of the title conveyed by the deed. There is no particular form necessary, but any act or thing which manifests such an intent is sufficient to establish it. It is always a question of fact, and must be determined by the circumstances surrounding each particular transaction." Lorigan, ]., Kenniff v. Caulfield, 14 Cal., 40. MODES OF ENTIRE OWNERSHIP 61 (c) A delivery may be actual that is, by doing something and saying nothing; or, it may be verbal by saying something and doing nothing; or, it may be by both speech and action. As Washburn says, " there must be an intention to give effect to the deed. If the deed is lying on a table in the presence of the parties, and the grantor tells the grantee to take it, and this is done, the delivery is complete. But should one, to whom a deed is made, get possession without the grantor's intention, it would not avail him any- thing, nor transfer the title." , (d) Ordinarily, nothing further is required to con- stitute a delivery of a deed by a corporation than to put its seal thereon by the consent of the organisation, unless its execution is by an attorney. When thus executed, it does not become the corporation's deed until a formal delivery. A delivery of a deed to an authorised agent of a corporation is a delivery to the corporation itself. (e) A deed may be delivered to a grantee or to a stranger unknown to the person for whose benefit it is made when this is the maker's intention. In such a case the delivery is effective the moment the grantee's assent is given, even though the grantor, during the interval, may have died. In one case a soldier, just before entering service, made a conveyance to his wife, which he left with other papers in her possession, though she had no knowledge of it. Discovering the deed after his death, the court held that this was a sufficient delivery. (/) A deed that is delivered before fulfilling the con- 62 BUSINESS MAN'S LEGAL ADVISER dition that may be attached thereto will have no effect. The act is a manifest wrong to the grantor and is not binding on him. Whether this be done through either fraud or mistake, the effect is the same; the land is not transferred. The books liken such a transfer to that of a deed which the grantee has stolen, whereby no title is gained, though, in form, the instrument may be complete. (g) After the deed has been delivered the grantee's title often relates back to the time of putting the deed into the possession of the third party. The title does not always run backward in this manner. Whether the deed has a retroactive effect or not depends rather on the intention of the parties. (ft) A deed of confirmation may make a voidable estate good. On the other hand, the deed does not strengthen the estate that is absolutely void. (i) Of course, the delivery of a deed is valid between the parties themselves, and all others who have knowl- edge of the transaction, or have any reason to suppose that the conveyance has been made. The occasions on which a land-owner attempts to practise a fraud like this are happily rare, yet they are frequent enough to require a statement of the principles of law that apply when they occur. What does happen, frequently, is the attachment of the land by creditors of the grantor. The law favours the grantee in all cases of this kind, and the general rule, is, if the sale has been made in good faith, although the grantee has neglected to put his deed on record within the time prescribed by law, nevertheless, he MODES OF ENTIRE OWNERSHIP 63 retains his ownership as perfectly as if no creditor had attempted to take away his land from him. 25. The grantee's acceptance or assent must also be in the grantor's lifetime, unless the act of delivery is one of a continuing nature, such as leaving a deed on deposit to be accepted by the grantee at his election. Thus, a father made a deed to his son and left it in the registrar's office to be recorded. But as the latter had no knowledge of it, he could not have assented to the conveyance. The deed, therefore, never passed any title to the land to the son, and consequently his heirs had no title thereto. The law presumes that a deed found hi the grantee's possession has been delivered and accepted. This is a presumption and nothing more, though the burden of proof is on the attacking party to show the fact to be otherwise. When a deed is delivered to a person who is under legal disability a minor or insane person, for ex- ample nothing need be done on his part to indicate its acceptance. If the grant is beneficial to him the law will regard the delivery as an acceptance. 26. Sometimes a deed is delivered to a person as an escrow. The object of doing this is to require the grantee to perform some condition before giving him the writing. For example, a deed may be delivered to another to keep until the grantee is ready to pay the consideration. A deed thus delivered, until the failure of the condition, cannot be recalled; it is beyond the maker's control, otherwise it would not partake of this character. 64 BUSINESS MAN'S LEGAL ADVISER Whether a deed is an escrow or not depends largely on the intention of the parties. The guiding principle is whether the grantor has entirely parted with his con- trol over the instrument. Whenever he has, then the delivery is complete. In all cases, to possess this quality of an escrow, it must be completely executed in all respects except the formal delivery to the grantee. When, therefore, a deed is placed in the hands of a third person, as an agent, servant, friend, or bailee of the grantor for safe keeping only, and not for delivery to the grantee, the transfer does not constitute a delivery, and the deed fails for lack of complete exe- cution. Finally, when a deed is thus given to a third person for delivery to another, it is proper that some words should be added to indicate this intention of the parties. If none are added this intention should be expressed in a formal manner. To a composition deed a somewhat different prin- ciple applies. If this is delivered to a creditor on condition that it shall be void unless all the creditors sign, it is an escrow, without any binding obligation until all the creditors comply with the terms. The delivery of a deed as an escrow has no effect until the performance of the condition. Therefore, a creditor of the grantor who should levy on the land in order to satisfy a debt of some kind would hold it by virtue of his levy in preference to the grantee in the deed. Again, the grantee would take subject to any grant made by the grantor after the delivery in escrow and before the happening of the condition. As an MODES OF ENTIRE OWNERSHIP 65 example, a grant of right of way over the grantor's land to a railroad company. The grant would be effective to convey the land, notwithstanding the execution and delivery of the deed to a third party to be kept by him until the fulfilment of the condition by the grantee. 27. In this country the practice is very general to record all conveyances of land, in public offices estab- lished for that purpose. This practice has prevailed from the earliest times, and it has wrought wonders in the way of simplifying the titles to real estate and in rendering their transfer easy and secure. Anyone can readily understand that, where no system of recording prevails, and a title is simply oral or written on a piece of paper which may be easily lost, possession of the property purchased is essential to render the owner secure. With the progress of civilisation and the per- fecting of a system for recording deeds, the possession of property is becoming less essential as a security to the owner. In other language, by virtue of our system of recording deeds, it is safe enough to buy property, although the buyer may have never seen it, and has no intention of taking formal possession. Indeed, he is just as secure as he would be by going on the land and making a formal entry, as was done in the olden time. The recording of a deed is not conclusive proof of its delivery and acceptance, even though the instrument is taken to the recorder's office for record by the grantee or his agent. Cases have happened in which an in- strument has been delivered, recorded, and afterward 66 BUSINESS MAN'S LEGAL ADVISER taken away from the recorder's office by the granto*, without any knowledge whatever by the grantee of the transaction. In such cases, as there is no delivery, there can be no acceptance. Generally speaking, the recording of a deed is a notice to all the world of the transaction; but in fact, this is not always so, even between a grantor and grantee, as there is no particular reason why an un- known grantee should visit the recorder's office for the purpose of finding out whether anyone has made a grant to him or not. 28. What are the rights of parties between the time of delivering and recording a deed? Surely there ought to be no division of legal opinion on such an important subject. As the object of recording is to give notice of the transaction to all the world, so any transfer made between the time of delivery and re- cording ought not to affect any party who is acting in good faith. Suppose a grantor should make a second conveyance between the time of making the first and its delivery for record in the public office. The purchaser who buys hi good faith, and pays the price therefor, ought not to suffer by his trans- action; but rather the first grantee, because it is his unquestioned duty, under ordinary circumstances, to leave his deed for record as soon as possible after receiving it. In many states though, by statute, purchasers have three months or even longer period to record their deeds during which they are fully protected from the consequences of any action by the vendor. Of course MODES OF ENTIRE OWNERSHIP 67 "between the parties to the deed, or the heirs or de- visees of the grantor, and the grantee and those claim- ing under him, the validity of the deed is not affected by the want of record; and the same is true as to all purchasers who may take a subsequent deed, knowing of the existence of a prior one." 1 29. In some states the law requires a deed to be acknowledged in order to pass the title. In others a deed may convey a title as against the grantor and his heirs, even though it be not acknowledged. Gen- erally the acknowledgment is a requirement merely of the law regulating the registration of deeds. In most states the statutes prescribe the manner of acknowledg- ing or proving a deed before it can be recorded. A statute declaring an instrument void unless it is ac- knowledged, is not unconstitutional. A principle of general application is, a deed must be acknowledged by the laws of the state where the land lies. The certificate of acknowledgment must be a substantial compliance with the requirement of the law. 30. An acknowledgment is a ministerial, and not a judicial, act; 2 consequently, an officer who thus serves, and is related to the party making the acknowledgment, is not disqualified by reason of his relationship. But an acknowledgment by an officer who is interested in the conveyance would not be legal. Is a bank official, who is also a stockholder, disqualified from taking or releasing a mortgage to or from the bank? The 1 3 Washburn,i 2200, p. jgi. 1 Washburn, 2154, p. 387. 68 BUSINESS MAN'S LEGAL ADVISER courts generally have said that he was, but statutes of recent years have been passed in the states authoris- ing him to act in such cases. Furthermore, it must be done by an officer within the territorial limits of his appointment. A notary public of Pennsylvania could not acknowledge a deed in another state, or an officer having authority to act in a single county could not take an acknowledgment of a deed in another. 31. An important reason for acknowledging in- struments is to prepare them for use as evidence. Those which are not acknowledged or proved as re- quired by statute cannot be admitted as evidence without proving that they have been executed. But even when not acknowledged, they may be used for some legal purposes. 32. A certificate of an officer is not conclusive evidence of its truthfulness, as the law says it is prima facie evidence and nothing more. It is presumed to be correct, but may be set aside or impeached by proper evidence. The courts strive to uphold an acknowledgment whenever this can be done with due regard to the statute prescribing the mode of making it; conse- quently, obvious clerical errors are not regarded, such as the misspelling of the grantor's name, and other apparent mistakes. 33. At common law a married woman had no power to convey land, indeed to make contracts of any kind. Her right, therefore, to make deeds is by statute, which in every state prescribes how her acknowledgment shall be taken. The principal end sought to be accom- MODES OF ENTIRE OWNERSHIP 69 plished by this is to render the act her own, and not one of coercion by her husband. The statutes gener- ally require that the transfer of any interest she may have in land must be acknowledged, for example, a release of dower, a power of attorney to convey her property, or the sale of the entire or lesser interest in her land. "A married woman has no capacity to contract for the sale of her real estate, or to convey it except in the precise statutory mode conferring the power." 1 In most of the states the statutes require a private and separate examination of the wife apart from her husband. The certificate by the acknowledging officer must show this fact, or it will be void. "The ac- knowledgment should be made after the examination and explanation. It is not sufficient that she ac- knowledged the deed with her husband, and it was sub- sequently fully explained to her, and she declared that she had executed it voluntarily and did not desire to retract it." 2 34. What is the effect of a defective acknowledg- ment? Unless a statute is in the way, such an ac- knowledgment is valid against all who know of its existence. But against a subsequent purchaser, who does not know, the instrument has no validity. Again, as such an instrument ought not to be recorded, the recording will not be effective against persons having no actual notice. On the other hand, if the certificate of acknowledgment is regular on its face, it is the re- 1 Gliddea v. Strupler, 52 Pa., 400. * Devlin on Deeds, 552. 70 BUSINESS MAN'S LEGAL ADVISER cording officer's duty to record it, and the record will serve as a notice to all notwithstanding the hidden defect contained in the certificate. A defective acknowledgment of a married woman's deed is worthless, nor will a court of equity compel her to execute an agreement thus acknowledged. A sub- sequent conveyance, however, by her of the same prop- erty will be valid. Nor can life be given to a defective deed by recording it. And when her deed is void because defectively acknowledged, it cannot be ratified during her married life except by a proper acknowl- edgment, at which time it becomes effective. After her husband's death she may ratify such a deed by another delivery. 35. The person taking an acknowledgment must possess proper authority, otherwise it is worthless. The statutes of the different states prescribe who may thus act. They include judges, justices of the peace, notaries public, clerks of courts of record, commis- sioners of deeds, recorders, and mayors of cities. An acknowledgment by an officer in fact is effective even if he is not a legal officer. Furthermore, if an officer, whoever he may be, has authority to appoint a deputy, he also may take acknowledgments, except in those states in which the act is deemed a judicial one. In these a deputy cannot act unless authorised by statute. 36. An acknowledgment taken in a foreign country is not effective in any state unless taken before a person authorised by the laws of that state to take acknowledgments. The record of a deed purporting MODES OF ENTIRE OWNERSHIP 71 to be acknowledged before an officer not known to the laws of a state cannot be admitted as evidence, unless his authority to thus act be shown. 1 Authority is given by most or all of the states to notaries public, also to the consuls, vice consuls and commercial agents of the United States. 37. No one can acknowledge a deed except the grantor or person who has sold the land. But an acknowledgment by one of several grantors, will satisfy the statute of some states with respect to regis- tration, and use as evidence. The same rule applies to the deed of a partnership. An agent or attorney who has authority to sign a deed, has authority also to acknowledge it, and the same rule applies to a deputy, and a corporate officer. But a married woman cannot authorise an attorney to make for her an acknowledgment; this she must do herself. A public officer who has executed a deed during his term of office may acknowledge it after his term has expired. 1 38. Oral or parol evidence may be admitted to explain words of art or technical terms used in a deed, which are not readily understood. But, in a deed containing everything needful for understanding the intention of the parties there is no room or occasion for introducing oral evidence. 39. Under some circumstances a deed may be cor- rected. The general rule is, it may be amended in all cases of accident, fraud or mistake. If the grantor is 1 De Segond v. Culver, 10 Ohio, 188. 1 Town of Lemington v. Stevens, 48 Vt., 36. 72 BUSINESS MAN'S LEGAL ADVISER unwilling to make the proper correction, whereby it will conform, to the intention of the parties, the grantee may apply to a court of equity for such a correction as will render the instrument a fair and honest expression of the true agreement. 40. Formerly, when land was of less value than at present, the description or boundary of land conveyed by deed was often very imperfect. With the denser settlement of the country, more care is taken in de- scribing it. One of the rules of construction is thatuan imperfect description cannot be mended or controlled by oral evidence. For this reason, among others, the extremest care should be taken to define the premises with the utmost certainty. Another rule of construc- tion is that a deed should favour the grantee, but this is applied only when other rules fail to remove the doubt or ambiguity. It need hardly be added that the construction put on the deed should be reasonable. (a) In construing a description, monuments will control courses and distances. This is based on a sound principle. They are less likely to be destroyed, or be wrong, than courses or distances. In making ordinary surveys courses may vary by reason of local attraction of the compass; and errors in distance may be due to inequalities of the surface. (b) There are two kinds of monuments natural and artificial. Among the natural monuments are streams, ponds, lakes, shores, trees and highways, which are silent but effective informants. When lost or removed, or there is doubt which of two objects is MODES OF ENTIRE OWNERSHIP 73 the monument, oral evidence may be admitted to clear up the difficulty. (c) The location of a monument is a question of fact for a jury. Again, it is asserted that natural monu- ments are of higher value than artificial ones, but this rule, perhaps, may be questioned, especially if the artificial monument has been prepared with great care and is of durable nature. Surely, a large stone that is put in a secure place, is a more secure boundary than a tree that may be blown down, or than a small, way- ward stream whose course may be changed by a freshet. When a line is described as running from one monu- ment to another, the law always contemplates a straight line. Furthermore, a line that is described as running from a given point to a natural object, like a highway or a stream, unless the course or length of the line is given, must be the shortest one that can be drawn from the point to the object. (d) In marking the public lands of the Western territories, the statutes have prescribed some rules that are imperative. The surveys often call for artificial monuments to designate the corners of the tract. These monuments control the courses and distances. To this rule two exceptions may be noted: first, in a deed that calls for natural monuments; and second, in a description that refers to a township and section, one or more corners of which have been lost. In the first case the general rule concerning monuments con- trols the boundary, both the artificial monuments and the courses and distances, although maps and field- notes would indicate a different location. But when 74 BUSINESS MAN'S LEGAL ADVISER a natural and artificial monument cannot be ascer- tained by any proper evidence, then course and distance must cover the location of the boundary, and this rule prevails with respect to lost corners. Oral evi- dence is admitted to establish the location of monu- ments, and even hearsay evidence, and evidence of general reputation, may be admitted in such cases. (e) Courses and distances of a small city lot play a more prominent part in determining the boundaries. The reason is that the courses and distances are ascer- tained with more care, are shorter and, therefore, it is possible to define them with greater accuracy than in the case of a farm or a very large tract. When walls, fences, and the like form monuments of some appre- ciable thickness, the boundary is always to the centre of the monument. In the cities especially land is becoming so valuable as to make this point worthy of notice. 41. The boundary of land by a non-navigable stream is the centre, changing with its course. Again, one who owns both banks has a title to the land between them and may lawfully maintain a fence across the stream. 1 It is not true, though, that the centre of a stream always forms the boundary line. If land is described as bounded on, or running along a river, the centre is the boundary. But the stream is excluded by bounding land on the bank, or shore, or by other words clearly indicating an intention to exclude the stream itself. 42. The boundary by a tidal navigable stream is the 1 See Sec. 5, a. MODES OF ENTIRE OWNERSHIP 75 high-water mark. In Massachusetts and some other states, by statute, low-water mark forms the boundary of land located on navigable rivers and by the sea. In both cases a riparian owner has a right to erect and maintain wharves extending from his land, subject to public control. The same rule applies to him as applies to the owners of land bounded by the sea. The shore or beach is the property of the state. The title to a navigable stream forming the boundary of a state passes to low-water mark, and the grantee can use the land between high- and low- water mark for his own private purpose, provided that his use does not interfere with the public rights of navigation, fishery and improvements. 43. The boundary by a non- tidal navigable stream is not so clearly determined. In some states, by statute, the lands over which navigable streams flow belong to the state, and the implication clearly is that the land of all other streams belongs to the adjacent owners, the line between them running in the centre. The lands within a state that makes no claim to them extend to the centre of the stream, subject, of course, to the public rights of navigation. 44. The boundary of a natural pond or lake is low- water mark; and the same rule applies to the boundary to a natural pond, raised artificially. Nor will the con- version of a fresh-water pond into a salt pond by arti- ficial means change the law concerning the rights of the land-owners. To an artificial pond a different rule applies, the boundary is through the centre. The title to the bed of all lakes, ponds, and navigable 76 BUSINESS MAN'S LEGAL ADVISER rivers to the line of ordinary high-water mark within the boundaries of many states was vested in them on their admission into the Union. Their waters are thus forever preserved for the enjoyment of their citizens to the same extent that the public are entitled to enjoy tidal waters at the common law. Nor can anyone divert or transfer the public title to such lands, by grant or otherwise, to individuals or an association. Again, the state title does not change by reason of the fact that the lakes and ponds are artificially filled so as to raise the land above the surface of the water. 45. The same rules of construction apply to land bounded by a highway as to that bounded by a non- navigable stream. If the words of description are "by or along a highway," and the like, the land ex- tends to the thread or centre of the way, and nothing short of clearly expressive words will work an exclusion. Even some descriptions of land "by the side" of a highway have not thus operated, for the reason that the scrivener evidently intended to convey to the centre. The cases of exclusion, therefore, are very rare. One reason seems to be almost conclusive; namely, that the grantor would have no use for the land used as the highway unless he retained the land on the opposite side, or unless it is clearly shown that there was something to be gained by retaining it as against the grantee a mine, for example. The adjoining owners of land bounded by a highway which is subsequently abandoned, can extend their lines to the centre. A. different rule may be applied MODES OF ENTIRE OWNERSHIP 77 if one of the adjoining proprietors can prove that he had a right to more than half. Again, the covenants in a deed of land bounded by a street or highway do not relate to the land over which the public exercise public rights. In other words, the covenants pertain simply to the land enclosed, and not to the soil in which the public exercises its right of passage. 46. To land bounded by a private way no right of Tray is acquired by the grantee. If the grantor does not own the land no covenant will be implied from a reference to a deed for the purpose of description. 47. To land bounded by a park a somewhat different principle applies. The grantee takes only to the interior line of the park, and not to the centre. 48. The quantity of land conveyed is sometimes given, more often the exact quantity is unknown; in no case is the quantity permitted to control the courses, distances, or monuments. Generally, deeds contain a clause, "more or less," in order to save the grantor from liability on his covenants with respect to the quantity. By inserting this clause no return of any part of the purchase money can be demanded, should there be a deficiency in the quantity, unless the state- ment is infected with fraud. 49. Sometimes, instead of giving a description of the land, the deed refers to other deeds containing a de- scription. When this is done the effect is similar to an insertion of the description in the subsequent deed. In like manner plans or maps of monuments, courses and distances, to which reference is made, become a part of the conveyance. 78 BUSINESS MAN'S LEGAL ADVISER 50. Whatever belongs to the land granted will pass therewith, although not specially mentioned: houses, window-blinds, doors, mines, and the like. 1 What- ever is a fixture goes with the premises. The law re- gards the grantor's right to remove things far more narrowly than those of the tenant, and for a sound reason. It is reasonable to suppose that, as a tenant's occupancy is only temporary, he does not intend to benefit his landlord by affixing things to the soil for the lessor's enjoyment after the cessation of the ten- ancy. On the other hand, a grantor who is the owner puts everything, so the law presumes, on the land houses, improvements of all kinds with a view to permanency, and not of removal. Rarely, indeed, can things which form naturally a part of the realty, and were annexed for its more perfect enjoyment be removed by the vendor after the sale. In like manner buildings that he has erected, whatever may be the mode of their construction, are a part of the realty and pass therewith to the purchaser. An exception or reservation may be made in a deed, which, of course, has the effect of retaining the title to whatever is excepted or reserved. If repugnant to the grant, the exception or reservation is void. 51. Another important part of a deed consists of the covenants of title, as they are called. These stipula- tions or agreements are of great practical importance, yet are very imperfectly understood. (a) There are five of these, though not all are found in modern conveyances; covenants of seisin, or posses- See Chap. VI., i, a. 79 sion; the right to convey; against encumbrances; for quiet enjoyment; and warranty. In many states only the last covenant is generally employed. In the older states all of them are often found. Like many other legal principles, they run into one another and are not clearly separated, and, for that reason, wiH be considered under less than five heads. (6) The right to convey is the right to convey the title to the land itself at the time of the sale. But, if he does not own the legal title, or is not in possession of the land itself, the covenant is at once broken, and the grantee can bring an action against him for convey- ing what he did not own. (c) The covenant of possession is defined to be an assurance that the grantor has both in quantity and quality the various estates which he professes to con- vey; therefore, any outstanding right or title which diminishes the quality or quantity will be a breach of the covenant. It is broken if the estate is of less duration than that mentioned, or if the quantity is less than that described. The covenant is broken also when the land conveyed has fences, buildings or other erections belonging to other persons, unless there is an exception made to them in the deed. But the existence of an easement for example, a highway or a railroad is not a breach of the covenant, nor an outstanding judgment or right of dower, for the reason that the grantee is presumed to know of their existence. (d) The covenant against encumbrances is intended to provide security against the claims of third persons. 80 BUSINESS MAN'S LEGAL ADVISER The most common form of encumbrance is a mortgage- but there are others: a right of dower, a judgment lien, taxes, an outstanding lease. There may be easements on the land, railroads, private rights of way, rights to water-courses, the right to cut trees, maintain dams and aqueducts; though in some states this rule is not so sweeping. "In Pennsylvania, Kentucky, Wis- consin, Iowa, and Virginia a public highway in use is not deemed an encumbrance in the conveyance of lands. And such is the tendency of the opinion of the courts of New York. But hi Indiana, Alabama, Vermont, Massachusetts, , Connecticut, New Hamp- shire and Maine, a public highway is an encumbrance, and contitutes a breach of the covenants in a deed of the land over which it exists." l (e) The covenant for quiet enjoyment is in common use in England, but, although inserted in the deed in America, requires little construction, as it is of essen- tially the same nature as the covenant of warranty. This covenant is the most general of all. In the Western and Southern states, especially, it is the one most generally used. This is a personal obligation binding the warrantor and his personal representatives, and also his heirs and devisees, when they are expressly mentioned. Even then their liability is not indefinite, but only to the extent of the assets or property received by them from the warrantor. As a personal covenant or agreement its virtue is gone after a period fixed by statute, and dif- fering considerably in the several states. When it is 1 3 Washbum, 2385, p. 441. MODES OF ENTIRE OWNERSHIP 81 broken the convenantee is entitled to an action against the covenantor. 1 (/) Besides these covenants, deeds sometimes con- tain special covenants of warranty against claims, past transactions, special damages, defects, etc. A not un- common covenant is that the grantor will not erect a building on an adjoining lot, or not within a specified distance from the line, etc. The mere mention of these will suffice, because the operation of them is essentially the same as in other cases. They are special in every sense, and how far they bind depends entirely on their construction. (g) Deeds may contain implied covenants, but the law seems to be opposed to raising these when there are express ones. Nevertheless, both express and implied covenants that are not inconsistent with each other may exist; when they do the implied covenants fail so far as they are opposed to the express ones. (K) A covenant does not protect the vendee or pur- chaser from suits, or save him harmless from the ex- pense of them. Thus, suppose a person claims a private right of way over the land of the purchaser, and, having been refused the right to exercise it, brings his action to enforce his right. Though failing in his suit, nevertheless the purchaser has incurred no little vexation of spirit and loss of money in defending his title. Yet he cannot call on his grantor to reimburse him. The grantor would reply, "I warranted your title to be good, and the suit has proved the warrant to be good. I am sorry that anyone should have been 1 Tiedeman on Real Property, 856, p. 699. 82 BUSINESS MAN'S LEGAL ADVISER so foolish as to set up a false claim thereon and attempt to enforce it; but I did not promise that everybody would let you alone, for, though not knowing much, I do know that fools are still numerous." (*) Besides the covenants mentioned, there is another division into personal and real, and it is im- portant to understand the distinction between them. Personal covenants exist simply between the parties to a deed; real covenants run with the land in other words, they bind the covenantor, the covenantee, and their heirs and assigns. Thus, if a covenant is personal between A and B and the covenantee, B, sells the land to C, who finds a flaw in the title, he cannot sue A, because the warrant or covenant was between A and B, and not between A and C. A covenant, therefore, is said to be personal when it binds only the original parties to a deed. When does this happen? Suppose A covenants and agrees to bind himself, his heirs and his assigns by his deed. The covenantee, of course, thinks that A's heirs and assigns are bound, but this is not always so. The language says so, but the law declares that the covenantor did not mean what he says. What, then, did he mean? The law declares that if the covenantor asserted in his deed that he was the owner and possessor of the land sold, when in fact he was not, this is a personal covenant and does not run with the land, and does not, therefore, bind A's heirs. The reason for this rule is extremely artificial and narrow. A covenant never continues to run with land after it is broken. As A MODES OF ENTIRE OWNERSHIP 83 was not the owner of the land at the time of the sale, his covenant was broken instantly, and so, notwith- standing the words he used in the deed, it did not run with the land and it bound only himself. What remedy, then, if any, has the covenantee? He can sue A on his personal covenant to recover for the damage, if he is alive; if he is dead, the covenantee can sue A's representative that is, his executor or administrator if he still possess any legal capacity, but he cannot sue A's heirs; they escape. (/) Having shown the importance of the distinction between personal and real covenants, the next inquiry is, what covenants or agreements are personal, and what are real? Instead of giving plain practical answers to this question, the law is sadly confused, nor do the courts manifest much disposition to aid individuals through the thicket. This is one of the subjects that ought to be lighted up by a statute. First, it is an essential element of a real covenant that it has for its object something annexed to, or inherent in, the land. The first criterion for determining whether a given covenant runs with the land, or not, is its nature and purpose. When this is not decisive the intention of the parties as shown in their deed must determine the question. Second, all covenants relating to the title of the land that are not broken on its transfer to the heir or as- signee are real covenants. Third, a covenant is said to run with the land when- ever the liability to perform it, or the right to take advantage of it, passes to the assignee. 8 4 BUSINESS MAN'S LEGAL ADVISER Fourth, to create a covenant running with the land, there must be a privity of estate, so the law says, between the parties. This is an old feudal phrase, which means that a mutual relationship must exist between the grantor and the grantee and his assignees to carry a covenant of warranty to subsequent gran- tees. Unless, therefore, there is such a mutuality or succession of interest, a covenant will not run with the land. (&) There is a growing tendency to regard covenants relating to land or its use as running therewith, and they are frequently enforced against subsequent grantees who have notice, even though there is no privity of estate. Consequently, a covenant con- cerning the title or use of land may be enforced in equity regardless of the question whether the covenant is one that runs with the land itself. By this rule covenants are sustained and enforced against assignees who have a notice stipulating for the particular mode of improvement, occupancy, or use of land. Cov- enants relating to the mode of building, or of using water rights, or air and the like, are essentially of this nature, because, through the stipulation contained in the deeds, all parties have notice of their existence. (/) With these general principles before us we may pass to the consideration of the question, what par- ticular covenants run with the land. The books contain a multitude of answers, but they are at hope- less variance. Generally, covenants that relate to buildings and improvements are of this nature. A covenant, for example, to erect a smelting mill or to MODES OF ENTIRE OWNERSHIP 85 set back a building from the street, or to build a new chimney, and the like, runs with the land. So are covenants not to build on adjoining land, or to open a street of a certain width, to keep up a dam, flume, levee, pier, bulkhead, gate, and the like. Also, cov- enants creating easements, to insure building and to use the money for rebuilding in case of loss. In like manner covenants to erect and maintain fences, to pay mortgage debts, to save the expense of building a party-wall, to pay rent, to make repairs, and in many cases, covenants concerning the use of the property. Also, covenants to pay taxes and assessments, and to regulate and restrict the use of land. Besides these may be mentioned covenants to supply or furnish water. Of late years the courts have not had much difficulty in determining that such covenants are real and run with the land. (m) There are other covenants, concerning which the courts have had the greatest difficulty in deter- mining their character. First, the most important among them is the covenant respecting encumbrances. If one exists at all, it exists at the time of delivering the deed, and therefore it is broken immediately as soon as the deed is delivered. Consequently, many courts have held that, as the covenant is immediately broken, it comes to an end and cannot run with the land. This view is strenuously denied by other courts, and thus they are hoplessly divided. () In like manner the courts are hopelessly divided over the important covenant relating to the quiet enjoyment of land. This is said to be, if broken at 86 BUSINESS MAN'S LEGAL ADVISER all, broken on the delivery of the deed, and, therefore, does not run with the land. Nevertheless, other courts of equal authority maintain the opposite rule. (0) Lastly may be mentioned covenants pertaining to the right to convey, which are broken immediately on execution of the deed, if at all. The courts are more harmonious in declaring these to be merely personal, and, therefore, not running with the land. (p) When such an action has been brought what damages can be recovered? If the grantor acquires a paramount title before his grantee has been evicted by the adverse holder, the grantee can recover only nominal damages, for his title is rendered complete by the operation of the rule of estoppel. 1 If he has been evicted before the grantor has acquired a perfect title, he is entitled to recover all the damages he has sustained. 2. ACQUISITION OF LAND BY DESCENT 1. Meaning of heir. 2. When title comes into existence. 3. Heir at law is only one who becomes owner with- out consent. 4. Degrees of relationship. 5. Rules of descent. 6. Ancestral estates. 7. Posthumous children. 8. Illegitimate children. 9. Law of what place applies. Sec. 7. MODES OF ENTIRE OWNERSHIP 8? 10. Aliens. 11. The land may be taken from heir to pay ancestor's debts. 12. Claims or incomplete interests pass by descent. 13. Deductions for advancements. 1. An absolute, or lesser, estate or interest in land is acquired by the land-owner's death without disposing by will of his estate (if it be heritable) ; for, when this happens, the law disposes of his land to his heir or heirs. The term "heir," as thus used, is always a legal term, meaning the person or persons who are entitled to the inheritance. 2. Though the title comes into existence by the death of the owner or ancestor, by popular phrase persons are sometimes called heirs while the ancestor is living, and are known as heirs apparent and heirs presumptive. By an heir presumptive is meant a person, who, should the ancestor die, would be his heir. Fcr example, in England a daughter, who is an only child, would be an heir presumptive; afterward, if the ancestor had a son, this presumption would cease. An heir apparent is one who, should he survive, is certain to be the heir of an ancestor. 3. The heir at law is the only person who becomes the owner of land by law without his own act or assent. On him the law casts the title, without regard to his desire, nor can he disclaim it if he would. Of course, he can part with the title afterward, but the title itself, by operation of law, vests or inheres in him. He is entitled to the rent of lands thus coming to him until 88 BUSINESS MAN'S LEGAL ADVISER they are sold for the payment of debts, even though the ancestors should die insolvent. On one occasion an heir was entitled to damages from building a railroad across the land of an ancestor after his death, although the land was subsequently sold for the payment of the ancestor's debts. In some states statutes provide that the executor or administrator shall receive and retain the rents and profits of the real estate until the settle- ment of the ancestor's affairs, or until they will not be needed for the payment of his indebtedness. 4. Consanguinity, or kindred by blood relationship, is the relation of persons descended from the same stock or a common ancestor. He is called the root or trunk of any stock from which the lines of descent are traced. This consanguinity is either lineal or collateral. It is lineal when existing between persons who descend in a direct line one from the other, as father, grandfather, and the like, and also when ascending, as son, grandson, and the like. Descent is collateral when persons are descended from a common stock, but not one from the other. Thus, a man and his nephew are collaterally related, as each may trace his line of descent to the same common ancestor. Were an ancestor to leave two children, and each of them two children, and so on through fifteen generations, the original ancestor would have, of collateral kindred in the fifteenth degree, nearly two hundred and seventy millions. By the canon law, 1 the relationship between father and son is the first degree; between brothers, in the second degree; between uncle and nephew, in the third I By canon lair s meant the law of the ancient church. MODES OF ENTIRE OWNERSHIP 89 degree; between cousins, in the fourth degree, and so on. By the common law the degrees are somewhat different. As the civil or canon law is usually followed in tracing descent, nothing need be said concerning the other. 5. In tracing the rules of descent the American law has departed widely from the English. The old Roman system has been regarded with more favour, though even from this there have been several note- worthy departures. One of these pertains to lineal or direct descendants, who, if standing in an equal degree from thsir common ancestor, share equally. By the common law, each lineal branch takes the portion which his parent would have taken had he been living. Thus, suppose X should die, leaving seven nephews; one of them is a son of his brother A, three are sons of brother B, and the other three are sons of brother C. By the Roman law each nephew would take a seventh part of the estate; by the common law the nephew who is the son of the deceased brother A, would take one-third of the estate; the sons of brother B would take another third; and the sons of C the other third. In some of the. states the Roman rule still prevails. By the English law great importance is laid on the possession, or the right of possessing lands, with respect to inheriting them. By the American law no distinction is made between the owner and the possessor of lands. Con- sequently, by our system the heirs of a reversioner, or remainder-man, by whom is meant a person who comes into the ownership of land after the termination 90 BUSINESS MAN'S LEGAL ADVISER of a prior estate, can take the same as absolutely as if their ancestor had been in actual possession. A remainder-man, or reversioner, therefore, becomes a proper stock or root of descent; in other words, he can devise property like the owner of an entire estate. Consequently, when he dies intestate, his estate is distributed among his heirs in the same manner as the estate of an entire owner who was in full possession at the time of his death. By the American statutes an estate of inheritance generally ascends to lineal ancestors when there are no lineal descendants, the law preferring the former to the collateral branches. Thus, a maternal grand- mother, with her big spectacles, is preferred by the law to a paternal uncle, when a person dies leaving neither father, mother, brother, nor sister. 1 1 "Statutes directing the inheritance of an intestate, in default of any child or descendant, to go to the father, and if no father, to the mother, and if no mother, to the brothers and sisters, in equal shares, and to the descend- ants collectiyely of deceased brothers or sisters, if any, the share the deceased brother or sister would have been entitled to if alive at the tune of the intes- tate's death, have been adopted in Arkansas, Colorado, New York, and South Carolina. In default of descendants the father takes by statute in_ preference to the mother, brothers, or sisters of the intestate in California, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, Oregon, Rhode Island, Tennessee, Vermont, Virginia, and West Virginia. In the states of Iowa, Kansas, Kentucky, Pennsylvania, Texas, and Wisconsin the father takes equally with the mother, and if she be dead, her share also, in preference to brothers and sisters. In Georgia, Illinois, Indiana, Louisiana, and Missouri the father, mother, brothers and sisters take equally; while in Alabama, Delaware, Mississippi, New Jersey, North Caro- lina, and Ohio the father is preferred to the mother, but postponed to the brothers and sisters." 3 Kerr on Real Property, 2264, p. 2283. "According to the statutory provisions of some of the states, after father and mother, brothers and sisters are the next degree in the order of succession. These are not in the descending or ascending line of propinquity, but collat- eral to the estate. The brothers and sisters being members of the intestate's immediate family, are more nearly interested in the estate than any other relative, aside from the father and mother, and for this reason the law casts upon them the descent of the property, subject to the right of the surviving husband or wife, and frequently in connection with the father and mother. Brothers and sisters thus take in Alabama, Connecticut, Delaware, Missis- sippi, New Jersey, North Carolina, Ohio, and Pennsylvania. In Georgia^ Illinois, Indiana, Louisiana, and Missouri brothers and sisters inherit with MODES OF ENTIRE OWNERSHIP 91 There is a great difference in the American statutes with respect to inheriting by persons of the whole- and the half-blood. In some states no distinction is made between them; in the larger number the right of in- heriting by the half-bloods is postponed another period, or to a more remote degree. In no state are they fully excluded. 1 6. Another difference may be noted with respect to inheritances which come to an ancestor by descent. These are sometimes called ancestral estates, to dis- tinguish them from estates acquired by purchase. In some states ancestral estates descend to the kindred who are of the blood of the ancestor whence they come, whether in the paternal or maternal line. This rule applies until the relations in the particular line have all been exhausted. 7. Posthumous children inherit in the same manner as children born in the lifetime of their father. This principle is universally adopted. 8. Illegitimate children can neither be heirs of anyone nor ancestors of anyone except their own issue. their parents, excluding more remote kin; while they are postponed to the father, and with the mother exclude remote kindred in Florida, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, Oregon, Rhode Island, South Carolina, Vermont, Virginia, and West Virginia. In the states of Arkansas, Colorado, lov.a, Kansas, New York, Pennsylvania, Tennessee, Texas, and Wisconsin brothers and sisters and their descendants are postponed to father and mother, but tane to the exclusion of remote kin." Ibid, 2266. 1 "In some states no essential distinction is made, the statute declaring collaterals of the half-blood to be entitled equally with those of the full-blood in the same degree, as in Illinois, Indiana, Maine, Massachusetts, New York, South Carolina, Rhode Island, Tennessee, Oregon, and Vermont. In (other states the preference js given to collaterals of the whole blood, as in Connecti- cut.jDelaware, Georgia, Maryland, Mississippi, New Jersey, Ohio, Pennyl- vama, and South Carolina. In still other of the states, as in Colorado, Florida, Kentucky, Missouri, Texas, Virginia and West Virginia collaterals of the full- blood take full shares, and of the half-blood half shares; but in none of the states of the Union are the half-blood wholly excluded." Ibid, 2267. 92 BUSINESS MAN'S LEGAL ADVISER While this is the rule of the common law, by statute, in many states, illegitimate children can inherit from their mother. 1 9. The law applying to the descent of land is that of the state where it is situated, and not the law of the domicile or home of the intestate. This principle, also, is of universal application. 10. The land of an alien who is authorized to hold real estate will descend to his lawful heirs, and not escheat or pass to the state. On one occasion a person who was authorized by special statute to hold land died, leaving an alien father and several alien brothers, and one brother who was authorized to hold land. The estate descended to him. 11. The land of every heir may be taken away from him for the purpose of paying the debts of the deceased owner. The law has wisely fixed a 1 period of tune within which creditors must act if they wish to appro- priate the lands, or rather their value, of a person who has died, for paying their debts. Through neglect to act within this period, their rights to the land are forever cut off. 12. Claims or incomplete interests in land pass by descent. Thus, in our country, public lands are sur- veyed and afterward taken up by individuals on very liberal terms. The paper or instrument given to owners is called a patent. Once an individual took steps for getting a patent of a quarter section, but died before the grant was completed. It was surveyed, 1 In New York they are excluded (from inheriting if there be legitimate issue, but this statutory exception perhaps exists in no other state. See note 3, Tiedeman's Real Property, p. 632. MODES OF ENTIRE OWNERSHIP 93 but not actually patented to, or secured by, the in- testate during his life. The patent was issued to his heirs, and the court held that they took the land by descent, and not as purchasers. In another case lands were sold for taxes, but the purchaser died before the delivery of a deed; nevertheless they descended to his heirs. In another case the rent of land leased indefinitely went to the heirs of the landlord after his death, as a part of their inheritance. 13. In distributing estates among heirs deductions are sometimes made for advancements. These con- sist of sums which the ancestor has advanced to an heir, and charged against him with the expectation that they would be deducted from his portion of the estate. It is not an uncommon thing for a father to charge up the sums given to a spendthrift child, expecting that, on the settlement and division of the paternal estate, they will be deducted from that child's share. To justify their deduction this intention of the intestate must clearly appear. 3. ACQUISITION OF LAND BY WILL 1. Who can make a will. 2. Minor can make a will. 3. Every interest in land may be devised. 4. Meaning of devise. 5. Statutory regulations about wills. 6. Will must be by law of the place where is the land. 7. Must be in writing. 8. Printed wills. 9. Must be signed. 94 BUSINESS MAN'S LEGAL ADVISER 10. When testator can make his mark. 11. Witnesses. 12. They must sign in testator's presence. 13. A witness cuts himself off from receiving anything. 14. When a will written by the 'testator requires no witnesses. 15. Credibility and competency of witnesses. 1 6. An executor can be a witness. 17. Competency of testator. 1 8. He must publish his will. 19. Who may be devisee or legatee. Corporation. 20. Description of devise. 21. Ambiguities. 22. From what time will take effect. 23. Lapsed legacies. 24. Revocation: a. Some specific act is needful, b, Destruction of it, c. Marriage by a woman, d. Accidental omission of legatee, e, Subsequent birth of child, /. Subsequent disposition of estate, g. The making of a later will, h. Revocation of joint wills. 25. Construction of will; intention. 26. Where the interest of the devisee rests in him. 27. Title by descent and devise compared. 28. Estate undevised rests in heir. i. The law relating to wills is partly statutory and partly the creation of the courts. By the modern law MODES OF ENTIRE OWNERSHIP 95 persons have more authority or right to make wills than formerly. There was a time, not so very long ago, when a married woman could not make a will; now, in every state, she possesses this authority as fully as her unmarried sisters. By the common law males fourteen, and females twelve, years of age can dispose of their personal property. 2. In many states a minor, though quite incapable of making an agreement, can make a will disposing of his property. A clear distinction exists between the two, for a will is a gift of property to take effect after the testator's death, and not an agreement or contract; therefore, a person who may be incapable by law to make a contract can make a gift which the law will recognise and enforce. 3. Every interest in land except a mere possibility may be devised. It includes, therefore, easements and all kinds of estates or interests in them, as well as every kind of personal property. - 4. The term "devise" relates properly to the giving 'or parting with real estate; it will serve our purposes better to consider the whole subject of transferring both real and personal property by will in this section. 5. By a will the testator undertakes to dispose of his property after his death. All of the states in the Union have prescribed laws regulating the mode of making wills. These statutes provide, among other things how wills must be witnessed. Most of the states re- quire three witnesses. Another general statement may be made: a witness usually is cut off from taking anything under a will. Many a legatee or devisee 96 BUSINESS MAN'S LEGAL ADVISER has lost the bequest given to him through ignorance of this rule. 6. The law governing real estate given by will is that of the state where the land is situated. A different rule applies to personal property. This is governed by the law of the domicile or home of the testator. These two rules cover all the property which can be be- queathed by a testator. 7. Most of the states require that a will should be in writing. No particular manner of composition is prescribed. A testator may write his will; in many cases it is written by himself. Indeed, once a husband and wife, both possessors of a large amount of property, amused themselves for many years by indulging in this kind of literary work. As some of them were not dated, after their death the question proved to be very difficult to decide which was the last, and, therefore the true will or final disposition of their property. 8. Printing, engraving and lithographing are held equivalent to writing. The instrument may be written with a pen or pencil; or it may be partly written and partly printed. Indeed, the courts go as far as pos- sible toward sustaining any kind of a writing which in other respects is valid and proper. 9. A will must be signed, but a seal usually is not necessary, 1 except perhaps in the states of Vermont and New Hampshire. The statute of frauds requires a will to be in writing and signed or subscribed by the tes- tator. He need not subscribe his name at the end; *It is almost everywhere appended. MODES OF ENTIRE OWNERSHIP 97 if this is done in any other place it will be effective; this rule, though, does not prevail everywhere. 10. A testator who is unable to write may make his; mark, and this is a sufficient signing to comply with the law, whether common or statutory. Again, some one may guide the hand of a testator who is too weak from disease to write without assistance, and who requests this to be done. So, too, it is declared, if a testator through feebleness is unable to handle a pen, and requests another to sign his name for him, the signa- ture will be a good signing without any mark whatever by the testator. Of course, when this is done, it should be accompanied by ample proof of the mode of signing, in order to escape all attacks that may be made on this unusual manner of execution. 11. The witnesses to a will are required to do more than the witnesses of a deed. In the latter case they are simply required to witness its execution; in witness- ing a will they are also judges of the testator's com- petency; consequently, whenever there is a legal dispute concerning the testator's capacity, they serve as expert witnesses, and are required to give their opinion of his mental capacity. The office of witness to a will is, therefore, important, and, as a person may be thus required to testify, he should always be selected vrith the view of his performing possibly this service. 12. The testator need not sign in the presence of the witnesses, but they must sign in his presence. It is better for all the witnesses, as well as the testator, to be present at the time of performing this important act. g8 BUSINESS MAN'S LEGAL ADVISER Many nice questions have arisen on this seemingly simple subject. Attestation in a different room, it is said, will be good, if the testator could see the witnesses when they were writing. Again, the witnesses may sign at different times and not in each other's presence, provided they all sign in the presence of the testator. Generally, a will contains an attestation clause, de- claring that the attesting was done in compliance with the statute in every particular. The witnesses sign below the attestation clause at the end of the will; in some states this is required by statute. By common law the witnesses are not required to sign in any particular place. ji. 13. Though a devisee or legatee, by acting as a witness, cuts himself off from his share in the estate, the will itself is not thereby affected. Again, should there be witnesses to satisfy the statute, even though the name of such a devisee or legatee were not counted as a witness, his action in witnessing it would not affect its validity. 14. A will that is written by the testator himself is called a holograph, and, by the laws of several states, no witnesses thereto are required. It is said by some authorities that such a will is suspicious, especially of a testator feeble-minded and notoriously under the influence of the devisee or legatee, who thereby ac- quires a large share of the property. 15. Some of the statutes require a witness to be credible, others to be competent. The two words are generally used synonymously. The law is very strict concerning the mode" jof signing and witnessing, MODES OF ENTIRE OWNERSHIP 99 and it is impossible to be too precise in all these particulars. The three principal causes of incompetency in witnesses are mental imbecility, arising either from insanity or youthfulness; the commission of crime; and interest in the property willed. The most common cause of incompetency is that of interest. In most states a statute provides that a will is good even though the devise or legacy be void by reason of the witness- ing of the instrument by the devisee or legatee. In some states there is another statute providing that, when a devisee has received no more by the will than he would have received as heir had the testator died intestate, he is a competent witness. The reason for this statute is apparent, for, even if there were no will, the person subscribing as witness would receive as much. In some states a witness who is incompetent by reason of interest may become competent by making an assignment or release of his interest. It may be added that competency affects the wife or husband of the devisee or legatee. Thus, should a gift be made to one, and the other act as witness, the gift would be void. This rule does not prevail everywhere. 1 6. An- executor or trustee can act as a witness. 17. The question of the competency of testators to dispose of their property may next be considered. Two classes are incompetent: minors and persons of unsound mind. Formerly, women were incompetent, but several states have removed their incompetency by statute. The sanity needful to comply with the law cannot be ioo BUSINESS MAN'S LEGAL ADVISER easily described. The inquiry is, when the testator's sanity is questioned, had he, at the time of executing his will, sufficient mental capacity to make it; not, whether he was sane or insane. Says Chief Justice Redfield: "He must have undoubtedly sufficient active memory to collect in his mind, without prompting, parts or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive their more obvious relations to each other and to form some rational judgment in relation to these." Courts have often declared it was not essential that the testator should be capable of managing business generally. His capacity is sufficient to make his will, provided he understands what he is doing. Of course, the question of capacity relates to the time of thus acting, and not to his condition either before or after- ward. A person who is not sane may make a will that is just as valid as any other, provided his insanity is not of a kind to affect his conduct as a testator. Again, an insane person may have lucid intervals during which he has a sufficient capacity to make a will. On one occasion a furious lunatic wrote a will, so proper and consistent in all its parts, that the court had no diffi- culty in sustaining it. In another case, that of an eminent lawyer, his will was set aside because, under the influence of a delusion concerning his brother, he disinherited him. The question, therefore, is one of fact to be decided by the evidence in each particular case. Lastly, a witness who is competent at the time of MODES OF ENTIRE OWNERSHIP 101 attesting a will does not become incompetent from any subsequent cause. The law simply requires com- petency at the time of his attestation. 1 8. A testator must publish his will; in other words, must declare to the witnesses that it is his last will and testament; and it is said that, unless he makes a decla- ration to this effect, the will is void. At the time of doing this the will must be completed. 19. Any person may be a devisee or legatee, includ- ing married women, minors, and corporations that are not prohibited by law from receiving a devise or legacy. A great question has long agitated the courts concerning a devise to a corporation not in existence. By the English law this can be done. In America perhaps no question has proved more difficult for the courts to decide. In one of the most recent cases it was decided that a testator could devise property to a trustee and entrust him with power to select or designate the object or objects of the testator's bounty. If, therefore, a testator creates a trust for a chari- table purpose, defining his intention, and investing or creating the trustee with discretionary power over the application of his bounty to charitable purposes, the bequest will be sustained. If, in executing the trust, the trustee selects the beneficiaries and devises a scheme or plan by applying the funds given in accord- ance with the testator's intention, the courts will sustain the instrument and uphold the execution of the trust. One or more trustees, however, must be selected. If neither a charity be named nor a trustee for executing it, then it would fail. 102 BUSINESS MAN'S LEGAL ADVISER New York is the leading state denying this doctrine; likewise Virginia and Maryland, though less rigidly. In the former state the rule prevailing elsewhere is set aside by statute, destroying all trusts of this character. In a recent case the highest court in New York thus stated the law: "If there is a single postulate of the common law established by an unbroken line of de- cision, it is that a trust without a certain beneficiary who can claim its enforcement is void. Nor is any distinction made between trusts generally and a trust for charitable purposes." 20. No formality is required in order to describe the subject-matter of a devise. It must be described with sufficient clearness to identify it; the law requires nothing more. 21. Sometimes there are ambiguities in a will. The law recognises two kinds of ambiguities patent and latent. When a latent ambiguity exists, parol evi- dence may be used to explain the intention of the testator. The use of parol evidence is limited to these cases. 22. A will takes effect from the death of the testator, and the validity of all gifts relate to that time. For example, a devise to one who died before the testator lapses or is of no effect. This principle of law has been corrected by statute, perhaps, in all the states. This provides, in a general way, that a son or other relative of the devisee shall take his place; in other words, the lineal heirs of the devisee take the portion coming to him by will. The statutes vary in detail; some confining the provision to the lineal heirs of a deceased^son or MODES OF ENTIRE OWNERSHIP 103 grandson, others extending the benefit to the general heirs of any relative who is named as a devisee, while others go still further and declare that the heirs of all devisees are capable of taking in their ancestor's place, thus avoiding altogether the doctrine of lapses in the event of the death of the devisee. 23. It is also a general rule, unless there be statutes to the contrary, that lapsed legacies and devises vest in the heir at law. A devise to two or more joint tenants will not lapse on the death of one, not even his share, but the sur- vivors take the entire estate. A different rule applies to the devise of tenants in common. If one dies his portion lapses, and the others take their respective portions. Under a devise to a class, the individuals of which change for example, a devise "to my children" those who survive the testator take the entire devise, and, in such a case, there can be no lapse unless all the persons included in the class have died before the tes- tator. 24. (a) As a will is not effective until the testator's death, he can revoke it at his pleasure. To do this, a specific act of some kind is required. A revocation may be express, or implied when the testator does some act clearly inconsistent with the existence of the will. Thus, should a testator sell the land devised to A, this would operate as a revocation of the devise, and, if this land composed the entire estate, the sale would operate as a revocation of the will. (6) A very common way of revoking a will is by 104 BUSINESS MAN'S LEGAL ADVISER destroying it. If it is burnt or ceases to be, the revo- cation is complete. Not infrequently the action of a testator in revoking his will is not so clear or effective as it might be. It is sometimes said that as much ca- pacity is required to revoke a will as to make one. At all events, a revocation does not become effective without clear action on the part of the testator in- dicating his intention to annul the instrument. In one of the cases a testator had endorsed in his own handwriting "canceled" on the will, without signing it. This was held to be a revocation. In another case a testator had written against one of the bequests of the will "obsolete "; this was held not to work a revocation. It was simply a revocation of that bequest, not a destruction of the entire will. In an Ohio case a testator was blind and called for his will, which was handed to him. After feeling of the seal, he handed it to another and told him to put it in therfire. Instead of doing this he put the will in his pocket and burned another piece of paper, telling the testator he had destroyed it. After the testator's death the will was produced and allowed, the courts declaring that he had done none of the acts which by statute were needful to revoke a will. Was not this case wrongly decided? Was not a fraud practised on the testator which the court ought to have regarded? (c) What is the effect to a woman of marrying after making her will? Generally, by statute, of revoking it, especially after the birth of children. (d) Sometimes, a testator, by accident or intention, omits the name of a child or grandchild in his will, and MODES OF ENTIRE OWNERSHIP 105 then questions have arisen concerning his rights. The law regards the omission as accidental, and the omitted person may share the estate of the testator the same as if he had died intestate. This rule applies to the grandchildren as well as to children; also to children born after making of the will. Of course/a testator may intentionally omit a gift to a child or other relation and, when this intention clearly appears, it will be regarded. (e) In many of the states the birth of a child after the making of a will operates as a revocation, the law regarding the non-destruction or non-revocation by the testator as an act of forgetfulness. (f) The disposal by a testator during his lifetime of land, devised to a person, of course, revoked the devise. This also applies to cases of sale by a testator who has not yet made a conveyance. (g) One of the most frequent ways of revoking a will is to make a subsequent will or codicil. The rule is universal that the last will speaks the mind of the tes- tator. As a codicil is a supplemental will, it revokes the will itself only so far as the two may be inconsistent; but an entire will made at a later date operates to destroy the other. But a prior will that has been cancelled or revoked in an express manner cannot be revived without a republication in a manner as formal as the original will. Yet it has been declared that the execution of a codicil which contains an express ref- erence to a prior will is a sufficient republication to restore it to life. (h) Sometimes joint or mutual wills are made; when they are they can be revoked by either testator until 106 BUSINESS MAN'S LEGAL ADVISER one or the other dies; after this event revocation by the survivor is impossible. The death of one of the testators is such a part performance of the agreement between them as to prevent the revocation by the other. 25. A cardinal rule in construing wills is intention. This the courts try to ascertain and regard unless it is contrary to positive law. The courts have a stronger regard for the testator's intention in construing a will than a grantor's inten- tion in construing a deed. Such is the rule of law, though with the progress of jurisprudence the intention of a grantor in a deed is regarded more scrupulously than it was a century ago. In other words, the spirit of justice more and more informs the law; rigid and technical rules meet with less and less favour. Though the books contain thousands of cases per- taining to the construction of wills, no good purpose would be served, did space exist, by reproducing them. The principal rules of construction adopted by the courts are important, and these will now be given. If an estate is devised to A for lif e, and the remainder after his death is to go to B, and A dies in the testator's lifetime, the estate goes directly to B on the death oi the testator. If the devise is to a wife for life in lieu of dower, and the estate after her death is to go to her daughter and the wife declines to accept the devise, in like manner the daughter takes the estate at the death of the testator. A devise of the rents and profits of land or the in- come is equivalent to the devise of the land itself, and is for life, or for all time, according to the words used in the devise. A testator may create a charge on land in favour of a third person, and whoever takes the estate be- comes chargeable therefor; in other language, takes the estate charged with the legacy. Whether he does, or does not, turns on the inquiry, whether the charge is a personal one on the devisee, or is on the land de- vised. In the former case it is not charged on the land; to create such a charge it must be clearly declared to be one. * 26. The interest of a devisee vests immediately on the testator's death, and, after proving the will, relates back to that time. If, therefore, it be in terms a present devise, and the devisee is not in existence at the time of the testator's death, the devise is void. 27. If the title by will be the same in quantity and quality as the heir would take by descent, the law re- gards him as an owner by the latter manner. This rule of construction rests on the legal principle that a title by descent is of greater worth than a title by devise or will. 28. Any estate that a person leaves undevised vests at once in his heir. Yet it may be taken from him when needed for the payment of the testator's debts. In contesting the title of an heir, intestacy is always presumed until the contrary is proved. 4. ACQUISITION OF LAND BY OCCUPANCY AND PRESCRIPTION 1. Law pre-supposes a grant. 2. Why law favours this mode. 'io8 BUSINESS MAN'S LEGAL ADVISER 3. Personal occupation is not essential. 4. "Short Limitations." 5. The adverse possession must be continuous. 6. Title to flats may be thus acquired. 7. What acts are effective. 8. Effect of mistaken occupation. 9. Can tenant acquire a title against his landlord? 10. Adverse claimant may abandon possession. 11. Acquisition of rights in a party-wall. 12. In a non-navigable stream. 13. In a public square or highway. 1. Another mode of acquiring land is by prescription or adverse use. A favourite theory has been often re- peated, that a grant was once made and that the deed of conveyance is lost. 1 This is one of the numerous fictions of the law, which play a nobler part than most of the fictions in ordinary literature. 2. One reason why the law favours this mode of acquisition is to quiet the title, so runs the phrase. An individual who has been in possession of a piece of land, openly and notoriously for the period fixed by the law, claiming, occupying, and using it as his own, whether holding the same under a deed of conveyance or without one, the law says shall henceforth be re- garded as the true and lawful owner, with as perfect a right to use, sell and devise the same as any land ac- quired by inheritance, will, or purchase. This principle of law is far-reaching and effective. By its operation the titles to land, after a short period, become clearly 1 See 3 Kent's Com., 419. MODES OF ENTIRE OWNERSHIP 109 known, and thus, at all times, the only disputed titles are very few compared with the entire number. The period varies in the states from three to thirty years. 1 3. Personal occupation is not essential if other cir- cumstances are sufficient to prove a continuous do- minion. Nor need the land be improved nor cultivated. But if proof of this notice be given, the fence must be sufficient to protect the land against the intrusion of cattle. To enclose by felling trees and lapping them will not suffice, nor will a brush fence. 4. In some states there are statutes known as "short limitations," reducing very considerably the ordinary period. These apply to one who is in pos- session under "colour of title," in other words, the possessor in taking possession has acted on the strength of a conveyance or judicial decree, for example, occupancy under a junior or more recent patent from a state. By such occupancy, after a certain number of years, he is protected though an older patent had been issued by the state. Possession under such a short limitation act is usually required to be accom- panied by the payment of taxes on the land by the possessor.' 5. The adverse possession must continue without interruption for the statutory period, if interrupted, and again resumed the limitation begins to run only from the time of resuming. To recognise the true owner's right to possession is enough to break the 1 In Louisiana the period is thirty years; in most of the states the period is fifteen or twenty years. See note to 3 Washburn, p. 148. Tiffany on Real Estate, 437. no BUSINESS MAN'S LEGAL ADVISER continuity. It is also broken if the owner enters on the land openly and under a claim of right with a clearly asserted purpose of taking possession. Can one make up the required period by adding or tacking to his possession that of another person pre- viously in possession? An heir can tack his ancestor's possession to his own, and a remainder-man under a will can tack to his own possession that of the tes- tator and the life tenant. An adverse occupant may purchase an outstanding title without affecting the continuity of his possession, for one may buy his place at a smaller price than by costly litigation. 6. A title to flats, as well as to any other land, may be acquired by prescription or adverse possession. And the general rule applies to flats as to other lands. An actual exclusive possession constitutes a dispos- session which, if continued for thje proper time, will ripen into a title. The title of everyone in flats, so long as they remain unoccupied and uninclosed, is subject to the public right of navigation; and there- fore the use by everyone of flats by passing in vessels or boats or anchoring thereon, is not a dispossession, and however frequent or long continued, will not give a title by prescription. Like the travel on a highway, such use is presumed to be in the exercise of the public right, and is not adverse to the owner of the land. But if flats are enclosed or otherwise actually occupied by a person claiming a right to the soil to the exclusion of all others, such use is a dispossession. Thus build- ing a wharf and using the flats at the end and sides to MODES OF ENTIRE OWNERSHIP in lay vessels for the purpose of loading and unloading them is a dispossession of the flats covered by the wharf, and of the flats at its end and sides, so far as they are exclusively used. 1 "No title to land under water can be acquired by the planting of oysters for any length of time without any other title than is acquired thereby." 2 When no part of the land under water has been en- closed or occupied, and the only use has been in taking ice from the surface of the water by the owner of the adjoining property, he acquires no title thereto by adverse possession. "Taking ice from the surface of the water is no occupation of the land. It is akin to a profit taken from the soil of others." 8 7. What acts are open and effective within the mean- ing of this rule? Says a well-known author: "Any visible or notorious acts which clearly evidence the intention to claim ownership and possession will be sufficient to establish the claim of the adverse posses- sion." Acts of this nature are the maintenance of fences and the erection of buildings. Hence, the secret use of the premises unknown to the owner will not suffice. Nor would a survey thereof, nor the running of a line, nor the lopping of trees, indicate its location.' In harmony with this principle, when the owners of adjacent lands claim only to the true line between them, the possession of one beyond is not adverse to that of the other; consequently each must conform to 'Tufts v. City of Charleston, 117 Mass., 401. 1 People v. Lowndes, 55 Hun., 469, 470. 1 Governeur v. National Ice Co., 57 Hun., 474, 482. See Chap. IV., Sec. n. ii2 BUSINESS MAN'S LEGAL ADVISER the true line as soon as it is defined. But if a purchaser encloses by mistake land contiguous to his own, believing that he is putting his fence on the true line, and keeps it there for the period required to gain ownership, he becomes the real owner. Again, if two adjacent owners agree upon the loca- tion of a line for a division fence between them, and each holds possession for the statutory period up to that line, the title of each owner becomes perfect without reference to the true boundary line between them. The mere occasional cutting and appropriation of timber is not such a possession of the land as will ripen into title by prescription against the true owner. 1 Nor will other acts like the making of a survey of the land and marking its boundaries, or paying taxes and excluding trespassers, or cultivating crops, or making bricks, boiling sugar, cultivating grass, pasturing hogs and cattle, depositing old machinery or wood thereon.' Mere temporary breaks in the enclosure around the premises, if enough of the fence remain to give notice of the extent of the adverse claim to the owner, will not stop the running of the statute." If there was still "an actual and visible appropriation of the land commenced and continued under a claim of all others." 4 On the other hand, if after the enclosure of land the fence goes to decay and the land remains open for 1 Fowler v. Coker, 107, Ga., 817. ' WUlkms^v. Rand, 9 Tex. Civ. App., 631. 8 Cyc., 991. Gunter v. Meade, 78 Tex., 634. MODES OF ENTIRE OWNERSHIP 113 two or three years before it is again enclosed, the ad- verse possession is continuous. 1 8. When land is occupied under a mistaken belief concerning the true line and with no intention to claim beyond it, such possession will not be effective against the true owner.' Tiffany says that in some states, in such a case, the possession is regarded as adverse, without reference to the fact that it is based on mistake, it being sufficient that actual and visible possession is taken under claim of right. 8 9. The possession of a tenant is that of the landlord, and the latter 's possession 13 restricted to the definite boundaries of the land leased. Consequently when the tenant extends the boundaries and takes posses- sion of the adjoining land, claiming it as his own, his possession of the additional enclosure will be deemed adverse to that of the landlord. 4 The possession of land by a tenant for life is not adverse to that of the remainder-man or reversioner. 10. No doubt an adverse claimant may abandon the land or surrender possession to the true owner at any time before his dispossession has ripened into a title. And if the true owner threatens the claimant with legal proceedings if he does not surrender posses- sion and he yields, his possession is thereby effectively arrested.' Likewise an agreement to vacate for a consideration will have the same effect.' > Settgast v. O'Donnell, 16 Tex. Civ. App., 56. J Pharis v. Jones, 122 Mo., 125. 8 443- 'Pharis v. Jones, 122 Mo., 125. Shaffer v. Lowry, 25 Pa., 252. . Eldridge v. Parish, 6 Tex. Civ. App., 35. ii 4 BUSINESS MAN'S LEGAL ADVISER 11. When a party wall is erected to designate the boundary between two lots of land, and stands partly on the land of each owner, neither can be regarded as having any adverse possession of the land of the other on which the wall stands from the use made of it as a support to the building on his own lot, but he may acquire a prescriptive right to use the, wall in the way he has used it. 1 12. Possession may be acquired of a non-navigable stream by keeping up fish traps, erecting and repair- ing drains across it and using it every year, during the entire fishing season for the purpose of catching fish. 2 13. Cases may arise in which private rights have grown up and become paramount to the public rights. For example, if lands designated on a map or plot as bounded by a public square are afterward enclosed by one and claimed by him as his private property, on which he pays taxes for many years, and exercises mean- while the full rights of ownership and without any claim by the public, the public loses its rights therein. 1 In many states the rights of the public in highways are not lost by the failure of the town, city or other public body to act. "Highways," says Elliott, "be- long to the public and are peculiarly subject to legis- lative control, and if the legislature sees fit to exercise its power of control, through the agency of a municipal corporation, it is none the less a soveriegn power. All that can be said in any event is that it is the sover- eign acting through the medium of local instrumental- 1 Williams v. Buchanan, 23 N. 6. 535. 2 Mitzel v. Drovers Bank, 44 Md., 248. Reuter v. Laive, 59 Wis.,.8j)2. MODES OF ENTIRE OWNERSHIP 115 ities. The doctrine that highways can not be lost by adverse possession is supported by other well- settled principles of the law. There can be no rightful permanent private possession of a public street. Its obstruction is a nuisance punishable by indictment. . . . Even if title to a highway may be acquired by adverse possession, it is not every encroachment thereon that constitutes such possession. Setting out shade trees, making a sidewalk, fencing in a portion of the way, and the like, have been held insufficient to establish a claim by adverse possession. " 5. ACQUISITION OF LAND BY ACCRETION 1. Deposit. 2. Islands. 3. Alluvion. 4. Avulsion. 5. Land bounded on shore-lines of non-navigable rivers. 6. How owner may protect his land from wasting away. i. Another mode of acquiring land is by actual making or deposit through the operation of natural causes. Thus, seaweed and other marine plants wafted on the shore become vested in the owner of the soil. In like manner, the owner of land which has been increased gradually through the action of water becomes entitled to the addition. See. 883. n6 BUSINESS MAN'S LEGAL ADVISER 2. Sometimes islands are formed in the sea or in navigable rivers. These belong to the state. A different rule applies to islands formed in a non- navigable or non-tidal stream. In this an island that forms on one side of the thread belongs wholly to the land-owner on that side; on both sides its ownership is divided. Lands that border a non-navigable stream belong to adjacent proprietors and are divided by the thread or central line. When this line slowly changes by the removal of the land from one side to the other, it still remains the boundary between the adjoining proprietors. 3. The owner of a strip along a river may rightfully retain an accumulation of sand, earth, loose stones, and gravel brought down by a river, and known as alluvion. Its chief characteristic is its imperceptible increase. Again, a riparian owner on a navigable stream has a right to remove and sell sand which has been deposited as alluvion between high- and low-water marks. Should a railroad company, for its own purpose, and not for the improvement of the stream, erect an obstruction on the opposite banks which should change the current and sweep away the sand and prevent further deposits, the riparian owner would be entitled to recover damages both for the sand thus swept away and for the loss of future alluvion. On one of these occasions an accretion of land had formed along the levee at New Orleans on the bank of the river, which had been dedicated to public use. The alluvion was declared to be part of the public levee. If the land of a private owner should run down MODES OF ENTIRE OWNERSHIP 117 to a river without any intervening public way, he would have the accretion to the bank as an incident of his ownership. 1 To acquire ownership in this manner the accretion must be slow, imperceptible from day to day, though seen clearly enough after a considerable length of time. This may seem to be a somewhat indefinite test, yet has proved to be practical. The addition to lands during short periods is clearly seen at some places as well as the wasting away of lands at others. Yet the owners of the disappearing land have no claim on the owners of the new land, for the reason that there can- not be such an identification of the soil as will meet the requirements of the law. Legal principles are intended for practical operation, and it would be highly im- practicable to reduce the rights of the gainers and losers of soil by these operations of nature to a nicer or more subtle principle. This right to accretions is sometimes gained by the gradual lowering of the water of a lake or pond. These belong to the adjacent owner. In New Jersey an increase of land adjacent to the sea is so gradual in some places that it cannot be ob- served while actually going on, although the change is visible from year to year. It was long ago decided that these accretions belong to the owner of the land to which they are made. But, in Louisiana, no private title is recognised to any accretions from the sea. 4. The process of taking soil by the sudden action of water from the land of one and depositing it on the > 3 Washburn, 1883, p. 72. Ii8 BUSINESS MAN'S LEGAL ADVISER land of another is known as avulsion. The soil still belongs to the first owner, unless his ownership is gone by the union of the soil with that of the second owner. Of course, to reclaim it, he would be obliged to prove its identity. 1 5. In conveying land bounded on the shore line of navigable waters, the deed will include the accretions. 6. An owner of riparian land may rubble his bank to prevent the water from washing away his soil, but he cannot build anything into the stream that will change its current for the purpose of land protection. 6. ACQUISITION OF LAND BY PUBLIC GRANT 1. Public ownership. 2. Construction of public deed. 3. Form of conveyance. 4. Certificate of entry. 5. Death of purchaser before issue of patent. 6. Assignment of certificate and issue of patent in assignor's name. 7. Identification of land. 8. Pre-emption right. 9. Cannot be assigned. 10. Conveyance by pre-emptor. 11. Creditors cannot levy on him. i. All lands in this country are vested in the state or the United States. Those belonging to the general 1 "Accretion, no matter to which side it adds ground, leaves the bound- ary still the centre of the channel. Avulsion has no effect on boundary, but leaves it in the centre of the old channel." New'Orleans v. United States, 10 Pet., 662, 717. MODES OF ENTIRE OWNERSHIP 119 government, though located within the limits of the state, are under the former's control. Other public lands are under the control of the state, unless it has conveyed them away. The laws that apply to lands are those of the state or territory wherein they are located. This principle applies everywhere. 2. There is another principle of construction. In grants between the state and an individual, a deed is always construed in favour of the state; in grants between one individual and another, the grantee is favoured. 3. There is no special form of conveying a public grant. It may be done by a special, or a general act of Congress. Millions of acres have been sold by authority of Congress, and general laws have been passed for conveying them. These will be briefly described. 4. A purchaser desiring land may, after the payment of his purchase money, receive from the register of lands a certificate of entry, which entitles him to a patent. This is a formal deed of conveyance required for the perfecting of his title, signed by the President of the United States, or the Secretary of the Interior, or by some other officer duly authorized by act of Con- gress. By granting a certificate of entry to a person, he is vested with an imperfect legal title. It is good enough, however, to enable him to maintain an action of eject- ment or trespass against a wrongdoer. 1 Again, after 1 Brummett v. Pearle, 36 Ark., 471; Broussard v. Broussard, 43 La. Ann., 120 BUSINESS MAN'S LEGAL ADVISER issuing the certificate to him, the land cannot be sub- sequently sold by the Government to another. The certificate also vests in the purchaser a sufficient title to enable him to sell or devise it. 5. Should the purchaser die before the patent is issued the land would descend to his heirs; of course, the patent ought then to be made out in their name; but, should it be issued in the name of the purchaser, not knowing of his death, his heirs could maintain their ownership. i 6. A purchaser who assigns his certificate of entry and takes out a patent in his own name, as is sometimes done, will hold the legal title for his assignee; were he unwilling to convey to the true owner, he can be legally required to make a conveyance. 7. In all cases the land must be so described in the certificate of entry that it can be identified. An inaccu- rate or obscure description bars the right to a patent. 8. To encourage immigration and settlement of public lands, Congress long ago provided that an actual settler on public land, who makes an entry in the records of the land-office of his claim, with a proper description thereof, acquires a pre-emption right, which entitles him to a patent of the land thus occupied at a minimum price fixed by law. By taking such action he gains a superior claim over the land to all other persons. He cannot acquire, in this way, a right to all creation, but only a quarter section one hundred and sixty acres. Furthermore, he cannot acquire any right in a reservation, or to land located in a town or city, or that which has already been taken, or is known to contain minerals. In other words, the law aims simply at the distribution of lands adapted to agricultural purposes. Again, he must take oath that he does not own a section in the state or territory, or that he has not abandoned a claim elsewhere in the same state or territory in order to take up a quarter section of the public land. When he has thus pre-empted it he acquires essentially the same rights therein as are acquired by a person to whom a certificate of entry has been given. To perfect his title therefor he must pay the purchase money required by law within two and a half years after pre-empting the same. 9. His title, though incomplete prior to receiving the patent, descends to his heirs, but it cannot be assigned, thereby giving an assignee a right to the pre-emption as against the Government, or to anyone claiming under a patent. 10. But when the pre-emptor undertakes to convey before he has acquired the legal title, the assignee can acquire a title by instituting proper proceedings. 11. In like manner creditors cannot levy upon a pre-emption right and take it to discharge the owner's indebtedness. 7. ACQUISITION OF TITLE BY ESTOPPEL 1. What is an estoppel. 2. Kinds. 3. Nature and effect. 4. What must be done to establish an estoppel. 122 BUSINESS MAN'S LEGAL ADVISER 5. A misrepresentation that does not mislead is not an estoppel. 6. Effect of record as a notice. 7. A temporary possessor of land by agreement is estopped from denying other party's title. 8. Estoppel by deed. 9. Who are bound by an estoppel. 10. Estoppel does not bind grantor by repurchase. 1. Estoppel arises in those transactions wherein the law draws some conclusions from the acts of one party in favour of another concerning the ownership of lands, which it will not permit him to controvert or deny. Thus, should a man named Smith sign a deed as Jones, he would be estopped by law from proving that his name is Smith in order to avoid the deed he had signed. Putting the rule in a more general form, one who has the means of knowing his rights should not mis- lead another and influence him to do that which he would not, if he knew the true situation. One, therefore, who is unmindful or careless in his mis- representations must bear the loss caused by his own conduct. Sometimes the courts have declared a different rule; namely, that one who has misled another uninten- tionally can, after indemnifying, be permitted to regain fully his rights. 2. Estoppels are divided into two kinds: Estoppels by act, which arise by the positive act of an individual; and estoppels by deed, which spring from the construc- tion of a deed or writing he may have given. MODES OF ENTIRE OWNERSHIP 123 3. One or two illustrations may be given to show more clearly the nature and effect of this principle. A man dedicates a piece of land as a public square, which is accepted, and individuals, supposing that the square will always exist, build larger and more costly houses than they otherwise would have done. The dedication cannot be afterward revoked. Nor does the estoppel depend on the length of the time such individuals have been occupying the ground around the square. 4. To establish an estoppel three things must be shown: First, that the person who is sought to be estopped has made an admission or done an act with the intention of influencing the conduct of another, or, at least, had reason to believe that another would be influenced thereby; second, that the other party has been influenced by the act or declaration; third, that the other party will be prejudiced or injured by per- mitting the act or admission to be disproved. Thus, A was about to purchase a piece of land adjoin- ing B's. Not knowing the exact boundary line, he asked B to point it out, which was done. B knew at the time of A's inquiry that his object in inquiring was not curiosity, that he was about to become the pur- chaser. Having purchased the land, B was estopped from denying that the line he had pointed out to A was the true one. The chief or fundamental thought in the judicial mind has always been the fraud that would be perpe- trated on the innocent party if the other were per- mitted to deny his representation or action. The case above mentioned illustrates this idea as clearly as 124 BUSINESS MAN'S LEGAL ADVISER would a thousand others. A, for example, relying on B's statement, purchases the land and makes im- provements, building, perhaps, an expensive house and adorning the grounds. If B could afterward say that he had made a mistake, acting without the full knowl- edge of his own rights, and were permitted to show that the true line was somewhere else, A's would be the loss, perhaps a serious one. The law estops B from doing such a thing. 1 5. An incorrect representation concerning one's boundary line or other matter, though not misleading, because the other party has the same or better knowl- edge himself, creates no estoppel. The element of fraud is absent, because, whatever may have been the intention of the party who made the statement, the other is not defrauded or injured thereby. 6. A man who holds a title to land that has been duly recorded thereby gives all the notice required by law, so long as he remains passive. It is only when another is purchasing land on which the seller has some un- recorded lien or charge, unknown to the purchaser, that he is bound to give notice. In such a case, should he fail to give the notice, he would be estopped from setting up a claim against the purchaser. In a case of this kind a tenant had erected a bowling alley on the land of his landlord, and, during the term of the 'The Supreme Court- of Pennsylvania has thus stated the rule: "The primary ground of the doctrine is, that it would be a fraud on the part of a party to _ assert what his previous conduct had denied, when, on the faith of that denial, others have acted. The element of fraud is essential either in the intention on the part of the party estopped or in the effect of the evidence which he attempts to set up." MODES OF ENTIRE OWNERSHIP lease, the lessor offered the estate at auction. The lessee put in a bid, but another bid higher. The owner of the bowling alley was not estopped from claiming and removing it as a fixture, nothing having been said about it at the time of the sale. In judicial language, "it is only when silence becomes a fraud that it post- pones." ' No man can set up another's act or decla- ration as the ground of an estoppel unless he has been misled or deceived thereby. 7. One who enters into the possession of land under an executory contract with another is estopped from denying the latter's title, for this would be a violation of good faith in obtaining possession. In like manner one who is under an obligation to give up the possession of the land to another, a lessee, for example, is estopped from denying the title of his landlord. The occupant is regarded as having pledged his faith to depart, and will not be permitted to do anything to impair the landlord's title. 8. An estoppel may be effected by deed. This is founded on the idea that the grantor or seller is not permitted to set aside his deed by an inconsistent act. He is, therefore, estopped from denying his title, and, should he acquire one after parting with his own, he could not set this up to defeat it. In other words, after making a conveyance of his property, he is bound by his action, even though not the possessor or owner at that time, but afterward. The covenants of warranty in a deed raise an estop- pel. A defective deed cannot create such an estoppel, >JHill v. Epley, 31 Pa., 331. 126 BUSINESS MAN'S LEGAL ADVISER for the simple reason that it is not a valid act of trans- fer. In like manner an ordinary quit-claim deed, convey- ing all the right, title and interest of a grantor, does not work an estoppel, for the reason that the grantor by his conveyance, does nothing more than convey whatever title he may have in the property. If he possesses none no title is granted, and no estoppel can grow out of the operation. A man acquires nothing by a deed from one who has neither title nor possession. This is clear enough without further discussion. Some of the states have settled this question by enacting that a title acquired afterward by a grantor passes instantly from him to the grantee. Where such a statute exists there is no room for more questioning. 9. An estoppel binds the representer and all who are in privity with him by relationship or otherwise. A stranger cannot take advantage of an estoppel, nor can he be bound thereby. Again, no one can enforce an estoppel except the person to whom the representa- tion was made, or those who are in privity with him and claim under him. In order that one may be bound by an estoppel, he must be legally capable of making a valid deed. Minors and married women cannot be bound in this manner. 10. A grantor or seller may reacquire his title by ad- verse possession, for in doing so he is not acting con- trary to his original grant or sale. By thus acquiring a title he is simply acting like one who should subse- MODES OF ENTIRE OWNERSHIP 127 .quently become a purchaser by the simple process of repurchasing. 8. ABANDONMENT OF LAND 1. Land may be thus lost. 2. What is an abandonment. 3. Title cannot be acquired by abandonment. 4. Effect of redelivery and destruction of deed. 1. The ownership of land may be lost by abandon- ment. When the fact of abandonment is unquestioned no one who may have taken possession can be com- pelled to relinquish his acquisition. Whether land has been abandoned or not is a question of fact to be ascertained in the same manner as facts usually are. 2. Some limitations to this principle may be given. The mere non-user of a way for a certain time does not work an abandonment of the owner's right to enjoy it. But, if a lessor enters and expels his tenant, who does not choose to re-enter, the rent is gone. If he returns the rent is suspended only during the time of his expulsion. A man may abandon an easement by exchanging it for another. This principle is not often applied in practice, for people rarely give up intentionally what truly belongs to them. Consequently the efforts to show that the owners of lands have abandoned them are in most cases fruitless, because there is every presumption against such action. A strong case, therefore, is re- quired to perfect an abandonment. 3. Though a title may be lost by abandonment, no i 2 8 BUSINESS MAN'S LEGAL ADVISER one can acquire a title by such action on the part of another. In other words, though a legal title can be divested or lost by abandonment, no other person can acquire a title by the abandoner's action. This question sometimes arises when a person has acquired a title by adverse possession, or is seeking to acquire a title by adverse use. It is plain enough that, if one's title is not complete, as we have explained, and he abandons his land, the former owner regains his possession for the reason that his title had not become extinct at the time of the abandonment. But a dif- ferent principle applies to a title that has become complete by the adverse use of another. 4. On the redelivery of a deed by the grantee, fol- lowed by its destruction, the title is revested in the grantor, unless the deed has been recorded. Says the Supreme Court of New Hampshire: "It is well settled in this state that the redelivery, by a grantee to his grantor, of an unrecorded deed, with the inten- tion and for the express purpose of having it cancelled, and of revesting the title to the premises therein de- scribed in the grantor, has precisely the effect in- tended, upon the principal of estoppel."' 1 After recording a deed nothing short of its cancel- lation has the effect of passing the title back to the grantor. 9. BY ATTACHMENT i. For what causes an attachment may be issued: a. Fraud, iDodgc v. Dodge, 33 N. H., p. 49S> 129 b. Fraudulent transfer of property, c. Absconding. 2. Other causes. 3. Cannot be issued against a guardian, executor, etc. 4. What property may be taken : a. Only debtor's property at that timej b. Crops, c. Property in agent's possession, d. Money, e. Goods, /. Property on which a lien exists, g. Property held by an assignee, h. Property held by officers of the law, i. Partner's interest. 5. How land is attached. 6. Exemptions: a. Food and food animals, b. Wearing apparel, c. Household furniture, d. Beasts of husbandry, e. Mechanic's tools, /. Wagons, etc., g. Homestead. 7. Who can claim exemption. 8. Meaning of householder. 9. Exemption may be waived except wages. 10. Garnishment Debt must be due. 11. An inhabitant in another state can not be gar- nished. 12. When foreign corporation can be garnished. 13. Garnishment of municipal corporation. i 3 o BUSINESS MAN'S LEGAL ADVISER 14. An executor or administrator cannot be. 15. Partnership may be by creditor of a partner. 1 6. How joint debtors may be garnished, 17. Garnishment of wages. 18. Garnishment of a bank deposit. 19. Bank cannot be garnished for draft secured by bill of lading. 20. Garnishment of public deposit. 21. Securities in bank's safety vault cannot be gar- nished. 22. Collateral securities may be for excess beyond loan. 23. Deposit covered by a general assignment cannot be garnished. 9. ACQUISITION OF LAND BY LEGAL PROCESS; ATTACHMENT AND EXECUTION i. Another way to acquire land as well as other property is to attach it by pursuing the methods pre- scribed by law ending with its sale in response to the owner's demand for the discharge of his indebtedness, whereby the purchaser acquires a good title. Besides statutes are many general principles; on this double basis rests the law on the subject. The first import- ant question is, for what causes can an attachment be issued? (a) Fraud in contracting a debt is a frequent ground of attachment. A preconceived purpose not to pay for goods furnished on credit, or not to keep an agree- ment regarding the disposition of property, is a fraud MODES OF ENTIRE OWNERSHIP 131 within the meaning generally of the statute. Mere failure, however, to pay a debt at maturity is not a fraud. (b) The fraudulent transfer or disposition of prop- erty is another ground of attachment. A transfer or assignment is fraudulent if benefits are reserved to the grantor, or fictitious claims are added. A sale of goods in the usual mode of merchants to customers who come to his store to buy is not a fraudulent disposition of them which will warrant an attachment against a resident debtor. 1 As exempt property is beyond the reach of credits, any disposition thereof by the debtor is legal. This rule was once applied to the owner of a homestead.' The transfer must be voluntary, either absolutely or conditionally, as by a mortgage. When an order of attachment has been issued on an affidavit charging that the debtor is an assignor of property with a fraudulent intent, the attaching creditor must sustain his charge, or his attachment will not be effective. The deed of assignment must clearly show on its face an actual personal interest on the part of the debtor to hinder, delay or defraud his creditors. The mere fact that the deed may be defectively executed is not sufficient to sustain the attachment." (c) Among those against whom attachments are most frequently issued are absconders, or those in- tending to abscond. Who is such a person within the meaning of the law? One who conceals or absents 1 Smith v. Eastern, 54 Md., 138. 'Davis v. Land, 88 Mo., 436. McPike v. Atwell, 34 Kan., 142. i 3 2 BUSINESS MAN'S LEGAL ADVISER himself for the express purpose of avoiding the process. He need not leave the state. 2. When the reason for attachment is that the debt was for work and labour performed which the debtor should have immediately paid, an attachment cannot be maintained when the whole transaction shows a mutual account consisting of debits and credits. 1 If the attachment law provide that when the debtor has failed or refused to pay the price or value of any article or thing delivered to him on the delivery thereof, the person suing must show an unconditional contract to pay on delivery and demand therefor.* Unless statutes authorise the proceeding it cannot be begun against a guardian, an executor or adminis- trator, or, in truth, against any trustee in his repre- sentative capacity.' 4. Let us next inquire what property may be taken? The answer is any property which may be seized and taken by an officer of the law in a legal manner. Nothing whose sale is prohibited by law can be at- tached a principle often applied to intoxicating liquors. The sheriff has no power to seize corre- spondence belonging to the debtor. And if he has authority to seize and take partnership books and also its papers, his power is simply to take and safely keep them. To look into them and take copies would be a gross abuse of power. 4 1 Morris v. Everly, 19 Colo., 529. Miller v. Godfrey & Co., i Colo. App., 177. Cox v. Henry, 113 Ga. ( 259. 'Hergman v. Dettlebacb, n How. Pr., 46. MODES OF ENTIRE OWNERSHIP 133 (a) As the attachment takes effect from the time it is served only such property can be taken as then belonged to the debtor. It covers most kinds of property, land, hay, tools, vessels, promissory notes, locomotive engines, cars, stage coaches with horses, cord-wood and charcoal, property in a newspaper office, wearing apparel, money in the debtor's posses- sion if the officer can seize it without violating the debtor's personal security, corporate shares of stock. Says Shinn: "Many states permit the attachment of shares of stock in a corporation, to be attached by a creditor of him who holds the legal title to the same even though they may appear upon the books of the company to be owned by another. And some states provide specially for such attachment, but many others hold that such stock is not attachable, because the owner has no legal estate in the property of the cor- poration. The corporation owns it all." (b) Crops, unless the landlord has a lien on them, may be attached when severed from the land, and generally when they are ripe and ready for harvest. This rule includes tobacco, hay and grain hi the'straw. When in this condition the officer can enter, cut down, seize and sell the same as personal estate. But hides in a vat for tanning cannot be attached because they cannot be returned in the same condition. 1 To render the attachment valid the crops must be severed from the land and kept in the attaching officer's custody. By a special statute regulating the attachment of property that cannot be manually de- > Cheshire Nat. Bank v. Jewett, 119 Mass. 341. i 3 4 BUSINESS MAN'S LEGAL ADVISER livered there may be a levy on an unripe growing crop. 1 The landlord's interest in a growing crop which the tenant is raising on shares cannot be attached. But " the growing crop of a tenant is in most states subject by the landlord for rent due."* (c) Property in an agent's possession may be seized as the principal's wherever found. The officers of a bank, however, with whom a small locked trunk has been deposited in the vault for safe keeping have no authority to open it for the purpose of ascertaining its contents, nor can they be garnished as the trustees of the owner either for the contents of the trunk or for the trunk itself. 3 But property in an agent's possession cannot be attached for his debt. (d) Money due to a federal pensioner is exempt while in possession of the government officer, but no longer. If it has been deposited in the name of the pensioner's wife, it still belongs to him and can be at- tached by his creditors. (e) A vendor who has parted with the title to prop- erty has no attachable interest. Shinn says that merchandise sold on credit and still in the vendor's possession is attachable for his debts, though the vendee may have given notes for the price. Personal property in possession of a fraudulent vendee may be attached by the vendor's creditors because the title has never passed from the vendor. This principle does not apply after he has sold it to an innocent l Raventas v. Green, 57 Col., 254. > i Shinn on Attachment, 52. * Bottom v. Clarke, 7 Cush., 487. MODES OF ENTIRE OWNERSHIP 135 vendee. When personal property is sold on the express condition that the title shall not vest in the purchaser until the agreed price is paid, he has no interest therein which can be attached. A manu- factured article still in the manufacturer's possession in an unfinished condition can be attached. 1 (/) "Generally" says Shinn, "chattels subject to a lien cannot, unless by virtue of a special statute be attached. This is for the protection of the party having the lien, and if he waive his objection to the attachment, it does not lie in the mouth of the general owner to complain. Such an attachment is not void, but only voidable at the election of the possessor of the lien." 1 Property in a common carrier's possession may be attached. As the carrier has a prior lien for his service, the attaching creditor must pay this before he can take the goods away. Again, when the shipper alone has a bill of lading the right of possession is in him and the goods cannot be attached by a creditor of the purchaser. If the consignee is insolvent he will not be allowed to assign the goods to another with instructions to receive them for him and thus defeat the creditors who wish to attach them.' Goods stored hi a warehouse are subject to the ware- housemen's lien and cannot be attached by the cred- itors of the owner. 4 More generally, whenever a bailee or keeper of goods has a right to retain them i Shinn, $S- * i Shinn, 59. 'SealGclcl v. Bell, 14 Mass., 40. First Nat. Bank v. Hanchett, 126 III., 409- 136 BUSINESS MAN'S LEGAL ADVISER in his possession until his lien is satisfied, they cannot be attached by the bailee's creditors. If he has the right of possession for a specified time, the goods cannot be attached until the expiration of that period. But the bailee's interest in them, if having one, may be attached. And the same rule applies to pledged property. (g) Property held by an assignee under a valid as- signment for the benefit of creditors cannot be attached or garnished. Says Shinn: "Property assigned for the payment of debts may be at- tached by a dissenting creditor and be effective as to the surplus after the satisfaction of the demands of the creditors who have not dissented. And when any property is assigned as security for a debt, any residue remaining in the hands of the assignee after the debt is satisfied may be attached, because such an assignment leaves the assignor the owner of the res- idue. Even a verbal assignment made in good faith, and for a valuable and adequate consideration, will transfer an interest in an account so as to be effective against a subsequent proceeding in garnishment." ' (h) Personal property in the law's custody cannot be attached. "Money in the hands of an officer can- not be reached, because it does not become the prop- erty of the debtor until it is paid over to him. Neither is it a debt due to the creditor in the pending suit rendering the officer liable as a garnishee in at- tachment. But a balance of money in the hands of a sheriff held, not in his official character, but in his 1 X Shinn, 68. MODES OF ENTIRE OWNERSHIP 137 private character, is attachable. And money in the hands of a clerk of the court in his official character is not subject to attachment, but if it be held by him in his private character, it is not exempt from seizure thereunder." ' (i) The interest of a partner in the firm assets can be seized and sold and, after paying the firm indebted- ness, his remaining interest can be taken to satisfy his individual creditors. Shinn says that "there is a small class of cases which holds that the goods of the partnership cannot be seized on an execution or at- tachment for the individual debt of the partner. And the creditor can have only the right of his debts in the surplus after the partnership debts are paid, and that this does not entitle the creditor, nor the officer seizing his interest, to the exclusive possession of the partnership property. " * 5. With respect to the attachment of land, whatever may be taken by execution, in other language by legal action, to satisfy a debt may be taken for that purpose. What, however, is meant by land in this relation? Shinn says that in California the term embraces every interest in land, but in many states the'term has a narrower meaning. For example, a widow's interest in land belonging to her husband is] not always in- cluded. The attaching officer does not take posses- sion of real estate as he does personal property, but makes a proper written notice in the place where the record of its title is preserved. i i Shinn, 7. 'Ibid, J 80. i 3 8 BUSINESS MAN'S LEGAL ADVISER In all cases an attaching creditor gets no greater rights than the debtor had at the time of the seizure of his property, therefore if he cannot take possession of it, his creditor cannot. 1 6. We now come to property exempt from attach- ment, which rests entirely on statute. The tendency is to increase exemptions; and the statutes granting them are liberally construed. (a) The statutes of most states specifically exempt articles of food, also food animals. A statute exempt- ing a quantity of wheat does not exempt a barrel of flour purchased by the debtor; a statute exempting one hog and the pork thereof, does not cover both the hog and the pork of another. (6) Another exemption is wearing apparel, which includes suitable apparel for labour with an extra suit for Sunday and an overcoat. (c) Household furniture is another exemption, also that used by a lawyer in his office. In Connecticut a widow and daughter, who had kept a boarding house, took a furnished house in New York, intending to return and resume business. In the meantime she stored her furniture, which was attached. The court held (i) that the furniture, if otherwise exempt, was not attachable by storing it, (2) that it was not exempt as a necessity for the use of her boarders, (3) that the term family was not limited to the mother and daugh- ter but, as she was keeping boarders, might properly include a servant or a dependent sister who was living with the family, (4) that in determining what was 1 Adoue v. Seligson, 54 Tex., 593. MODES OF ENTIRE OWNERSHIP 139 necessary household furniture her occupation might properly be considered; if more was required for her personal use because she kept boarders an additional bureau, for example, was covered by the statute. 1 A cooking stove is exempt. The officer who attaches household furniture must leave articles amounting in the aggregate to the statutory value. "And where articles of household furniture which are exempt from attachment are intermingled with other similar articles not so exempt in the house of the owner this is not such a confusion of goods as will justify an officer in attaching all of them on failure of the owner to claim any of the articles as exempt. " (d) Beasts of husbandry and domestic animals which constitute the support of the debtor or his family are exempted in many states. An animal need not be in actual use; if kept with the honest intention of using it, the law is observed. A debtor who refuses to elect whether he will retain a horse or pair of oxen as the exempt team can not complain because the oxen were attached and sold. Likewise if a cow is exempt the debtor cannot complain about the officer's selection if he have more than one. And if the debtor owns neither oxen nor horses a colt that he may have is exempt. (e) The statutes in all the states probably exempt the tools of a mechanic used in his trade. Shinn says that "working tools necessary for his usual occupation 1 Weed v. Dayton, 40 Conn., 293. i Shinn 100. '140 BUSINESS MAN'S LEGAL ADVISER should be construed to include not only all tools which are indispensably necessary to the mechanic, or even such as are in use by individuals of the same craft, but also such as the mechanic has adopted to ease and diminish his labour, and not only his working tools, but such as he used and has set apart for the advantageous prosecution of his business." ' And if one is engaged in two branches of business he may select tools used in both trades, but the value of all must not exceed the exempted value fixed by the statute.* The debtor must be a mechanic as dis- tinguished from a manufacturer. But in Massa- chusetts machines of a simple construction, moved by the hand or foot and used in the manufacture of boots, are exempt from attachment even though the owner employed a number of men under him in carrying on his business by whom the machines are generally used. 8 Lastly, the temporary suspension of a mechanic's exercise of his trade does not render his tools liable to attachment. (f) To the foregoing exemptions others will now be given. A barber's chair and foot rest, presses, vats and knives used in cheese-making, a grindstone used on a farm, a sled for drawing timber to market, a shovel and other tools used by a debtor in tilling his land, a violin used by a musician; apparatus used by a teacher for teaching, the cart or truck of a peddler, the wagon, horse and harness of a physician if needed by him in practising his profession, but not a wagon 1 Shinn, 103. 1 Barker v. Willis, 123 Mass., 194. Daniels v. Hay wards, 5 Allen, 43. MODES OF ENTIRE OWNERSHIP i 4 i v used for convenience or pleasure, nor a wagon with patent couplings attached used by the owner in selling patent couplings, nor is the stock of goods, scales and measures, horses, wagon, and harness of a country shop keeper. (g) Most states provide for a "homestead" exemp- tion of land with a fixed valuation. This land is for the debtor and his family. A levy by attachment on land previous to making a home of it will be effec- tive. But if two parcels of land are apart, though used for the same common purpose, both are exempt. 1 Building materials that are to be used for repairing the homesteader's dwelling house which have been depos- ited on his land are also exempt. Again, if the homestead has been changed into money which is kept as a separate homestead fund, it cannot be attached, even when deposited in a bank. Money paid for a right of way over a homestead by a railway company is exempt. But a homestead does not extend to new land exchanged for the old. Insurance money received from the burning of the house, barn or other building is exempt for a reasonable time.* 7. Again, the question has been raised, who can jlaim the exemption? The head of a family, and if the husband is temporarily absent, the wife may claim the exemption for him. A married woman aban- doned by her husband, but temporarily supporting her child, is the head of a family. The family of an absconding debtor only also benefit by the exemption. 1 Brooks v. Chatham, 57 Tex., 31. Cooney v. Cooney, 65 Barb., 534. 'Shian, no; Bonnel v. Dunn, 39 N. J. Law, 435. 142 BUSINESS MAN'S LEGAL ADVISER 8. The term householder is by some statutes used in the same sense, as "head of family" in others. A householder is one on whom rests the duty of support- ing the members of his family or household. The head of the family also must reside with the members, for a statute exempting property for the use of every family in the state does not cover the property of one having a family in another state. 1 9. Lastly, the debtor may waive or give up his ex- emption by a great variety of acts. But the exemption of his wages from attachment and exemption cannot be waived. 1 The reason is, the exemption is made for the benefit of his family. 10. Garnishment is another form of attachment in which a the garnishee is notified or warned not to pay the money or other effects in his possession to the owner, but to hold them until the court shall decide whether they ought to be paid to him or to some other person. The garnishee, therefore, is a stockholder or custodian of the funds or property in his hands which he must hold under the proper disposition of the court. He has no pecuniary interest in the matter, no costs to pay and none to save. His business is to suffer the law to have its course between the litigants, and he is not permitted to do anything to change his position toward either. He is only bound to dis- close the truth respecting others." The proceeding is founded wholly on statute. Some statutes require that the debt must be due 'Allen v. Manasse, 4 Ala., 554. 'Shinn, 114. 143 and payable at the present time in order that it maybe made the subject of a proceeding in garnish- ment, while others permit a debt which is to become due in the future to be so made liable, but it is a uni- versal requirement that it must be an absolute existing debt, even though the period of its payment may not have arrived. 1 It therefore follows that a contingent or uncertain debt cannot be garnished. 11. An inhabitant in another state is not charge- able as a garnishee, if he has come for a temporary purpose. When, however, the garnishee is a resident of the state, the fact that the principal debtor is a non-resident will not affect the validity of the attach- ment, because attachments are permitted against non-resident debtors. If the garnishee and the principal debtor both reside without the state, and the debt is payable elsewhere, the garnishment will not be effective. A corporation may be garnished, and if doing business in another state it may be gar- nished there whenever it may be sued there like any other corporation. A foreign corporation which is casually within the state by the presence of an officer cannot be garnished. 12. Again, no foreign corporation can be made liable as a garnishee so long as the amount of its in- debtedness is uncertain. This rule is often applied to insurance companies which cannot be garnished until the amount of the loss has been fixed. 2 Nor can the money of a corporation set aside as a sink- ing fund for the payment of defined debts, of bonds I Shinn, 847. a Bucklin v. Powell, 60 N. EL, It. 144 BUSINESS MAN'S LEGAL ADVISER pledged as collateral security, be garnished. Nor can a corporation be held liable as a garnishee for stock owned by the principal debtor. This is based on the reason that the stock is not a debt due to him from the corporation. By the statutes of many states, however, shares of corporate stock may be attached. "Regarding the possibility of holding a subscriber for stock in the corporation as a garnishee when one has subscribed for stock, and the money for the price is due to the corporation at a fixed time the subscriber may be garnished by a creditor of the corporation." ' 13. Public policy prevents the application of the law of garnishment to municipal corporations, but in some places it can be done. "The general rule," says Shinn, " that a municipal corporation may not be held as a garnishee for a debt due by it to a third person, has been applied where it was sought to subject an unpaid balance due to con- tractors and material men on school houses and other public buildings for grading and paving and for other contracts of employment. The rule has been more frequently applied, however, where it has been sought to secure parts of the salary due from a municipal corporation to its officers. By an application of the rule, the salaries or earnings of teachers of public schools cannot be secured by process of garnishment seized upon the corpora- tion or board owing them. In the same manner fees due to jurors have been beyond the reach of garnishment process." * "Neither the board of trus- 2 Shinn, 870. i Ibid, I 874. MODES OF ENTIRE OWNERSHIP 145 tees or directors, nor the treasurer of the board, can be made a garnishee to secure the application of the wages of a teacher to satisfy his debts. 1 A public officer is beyond the reach of garnishment while he holds his funds in his official capacity. Money or property which has been obtained by an officer on execution or other legal process is in custody of the law and cannot be taken by another writ while it is thus held." The rule is very broad and applies to almost every kind of offices. 14. An executor or administrator is not by the common law liable officially to garnishment in a suit by a creditor of the estate, nor by a legatee or dis- tributee. Nor is he an agent, factor, attorney, or trustee of a creditor, because he derives all his authority from a different source. By statute in many states they may be garnished by creditors, legatees or dis- tributees. A guardian is generally governed by the same rule as an executor or administrator. 1 5. A creditor may by garnishment secure the money or property belonging to a partnership which is in the possession or control of its debtor. The individual members are treated as one individual, and the part- nership creditors are liable in the same manner as an individual's creditors. 1 6. When a debt is owing by several persons jointly they must all be joined as garnishees, for the process will not generally reach a debt due from joint debtor by service on one alone. "If two or more persons are not jointly indebted to the principal defendant they 1 Trustees of Schools v. Latman. 13 111., aj. i 4 6 BUSINESS MAN'S LEGAL ADVISER cannot generally be jointly charged as garnishees in one writ of garnishment. If several are distinctly indebted and have distinct interests they must be distinctly charged, for they cannot be jointly charged as having jointly in their hands the effects of the principal debtor." 17. With respect to wages, as those of a minor belong to the father, they may be secured by garnishment; if a minor has had his time given to him by his father, his earnings cannot be garnished for his father's in- debtedness. The garnishing of an employee's wages is a thing of common occurrence, which may be done unless exempted by statute. In many states a speci- fied sum is exempted. They must have been earned and have become payable before they can be gar- nished, consequently wages paid in advance cannot be garnished, though in some states the garnishing of future earnings is authorised by statute. 8 Again, when an employer has a lien on the wages of an employee which by agreement is to be paid from his earnings, his wages cannot be garnished until this is satisfied.' And if a contractor does not complete his contract, whatever he may have earned cannot be garnished. A labourer when employed may lawfully assign his future earnings to another creditor if the employer will agree to pay the wages accordingly. Of course, the assignment must be without fraud and in all cases must conform to the statute. When the wages are payable in non-negotiable orders or certificates, they 1 2 Shinn, !go2. * 2 Shinn, 938. 'Thome v. Matthews, 5 Cush., 544. MODES OF ENTIRE OWNERSHIP 147 may be sold by the employee before they are received; and any acceptance of the assignee to whom they are to be paid will relieve the payor from liability to garnishment. And any surplus over the amount as- signed by the accepted order is liable to garnishment of the employer by the labourer's creditor. 1 The wages of a labourer which are exempted by stat- ute are such only as are earned by the hands and labour of the individual himself, and of his family under his direction, and do not extend to what is earned by him as a contractor or received by him as the superin- tendent or master of other labourers. Therefore a master carpenterwho supervises the labour of the hands employed by him in building a house is not exempt, neither is the boss of a department who employs and discharges the hands, nor is the conductor of a railway train who has full charge of the conduct and manage- ment of the train; nor is a blacksmith who is the pro- prietor of the shop. On the other hand the wages of a forwarding clerk of a railway company are exempt, also those of a locomotive engineer, of a school teacher, of a miner, who himself works in a coal mine at so much per ton although he has charge of a chamber with two hands under him, of seamen except in Massa- chusetts. Even in that state the voyage must be completed before their wages can be garnished. 1 8. A depositor's creditor can acquire a lien to his deposit by garnishment. The bank must respect the process and can neither apply the fund attached to the payment of any debt from the depositor to itself 1 Macomber v. Doone, a Allen. 148 BUSINESS MAN'S LEGAL ADVISER nor to anyone else. Nor is his creditor, whether in- solvent or otherwise at the time of the attachment, of any concern to the bank. Whenever, therefore, the institution is liable to the depositor his creditor can acquire a lien on his deposit by attaching it. Further- more, having once acquired a lien, by no device of the debtor or bank can it be destroyed or impaired. As the person who makes the deposit is usually not important, a deposit made by one for the benefit of another can be attached by a creditor of the de- positor. For the same reason the source of the money is not important if at the time of making the deposit it belonged to the depositor. Borrowed money, there- fore, can be attached like any other. While a deposit belonging to the depositor is subject to attachment, a check, draft, note or other instru- ment deposited by him that has not been collected nor credited as cash with the right to draw against it cannot be attached. As the depositor himself would have no claim against the bank until its collection, surely no creditor of his would have a superior claim. For the same reason a creditor cannot attach a check drawn on the same bank, or on another, for which a credit has not been given to the depositor. A different rule, however, applies to a check that has been certified, for this is essentially money and may be attached by the depos- itor's creditor. 1 19. Again, a bank that cashes drafts accompanied by bills of lading becomes the owner of the several > 2 Bolles on Modern Banking, p. 778. . MODES OF ENTIRE OWNERSHIP 149 instruments and goods covered by them, which cannot be attached by any creditor of the drawer. The bank thereby acquires a special property in the goods which it retains until the draft is accepted or paid. 20. A deposit of a public fund in the officer's in- dividual name may be garnished and taken for his debt. No proof appearing of its public character to justify the bank hi paying the money to the attaching creditor, it must act honestly and without knowledge of its true ownership. When thus acting its course is safe from attack by the depositor, his successor or any other interested party. 21. Money and other securities stored in the vaults of safety deposit companies cannot be taken save by special statute, because they are not debts in any sense due from these institutions. The safety deposit com- panies are purely bailees or keepers. 22. Collateral securities held by a bank as security for a loan may be attached subject to its rights and after the proper sale of them, should a surplus remain, this may be taken by the attaching creditor, but the bank's rights are paramount. A bank, therefore, that discounts a draft secured by a bill of lading ac- quires a title to the merchandise which is superior to that of any attaching creditor of the shipper. 23. A deposit that has been assigned in the general assignment of the owner cannot be garnished by one of his creditors. CHAPTER IV MODES OF LIMITED OWNERSHIP i. BY TENANT OR OCCUPANT FOR LIFE 1. Mode of creating an estate for life. 2. For whom it is created. 3. Rights and duties of life-owner: a. Improvements, b. Payment of interest on mortgages, c. Taxes. 4. Relation between life-tenant and reversioner: a. Rents, b. Crops, c. Effect of purchase of outstanding title by life-occupant, d. Sale of interest by life-occupant, e. Valuation of life-occupant's interest, 5. Waste. 6. How land must be improved: a. Repairs, b. Insurance. 7. Division of income from stock between life-occu- pant and reversioner. 8. Remedies for wrongs committed by life-owner. 150 MODES OF LIMITED OWNERSHIP 151 1. NEXT to absolute or entire ownership may be mentioned ownership for life. Such ownership is often created by will, the testator giving the use of his land to a son during his lifetime, and, after his death, then to the son's child or some other person. This is the most usual way in which estates for life are created. They are very common, though perhaps less so than formerly. The old system of entails, as they are called, which still prevails in England where- by different interests in land are carved out for the purpose of perpetuating the family name and grandeur, has never received much countenance in America. Furthermore, the wealth invested in land is forming a constantly diminishing portion of the entire wealth of the country, and consequently there is a weaker desire to entail or perpetuate interests in land than formerly, when it constituted by far the largest part of a person's wealth. 2. Nevertheless, estates for life are constantly created by will for the especial benefit of the children of the testator; and the principal modern questions that arise relate to the mode of using the land thus inherited. Besides these are other questions pertain- ing to the validity of such estates. As the answers to the second series of questions depend largely on the construction of the instrument creating them, they need not be considered here. 1 3. What are the rights and duties of an owner of a life-estate ? (a) For improvements made on the land he cannot > See Section 3 on Wills. 152 BUSINESS MAN'S LEGAL ADVISER claim compensation from the person who is to receive it after him, usually called the reversioner or remainder- man. On the other hand, he is under no obligation to do more than to keep the premises in repair. He may complete, at the expense of the testator's estate, a mansion-house which was begun by the testator. The expense of putting the house into a tenantable condi- tion is a charge that must be borne by the estate of the testator, not by the person who is to become the pos- sessor for life. But, having once come into possession, after the completion of repairs, it is his duty to main- tain them afterward. (6) Another important duty is to pay the interest on any mortgage or other encumbrance that may exist on the life-estate. He is not required to pay the prin- cipal, however, and should he be obliged to do so in oMer to retain his life-estate, he would become a creditor of the testator's estate. On the other hand, the voluntary purchase of a mortgage on the estate, the law regards as done for the benefit of the reversioner as well as himself, and the amount must be divided in some equitable manner between them. (c) With respect to taxes, the life-occupant must pay them, as they are an annual charge and do not affect the reversioner. An assessment for permanent bene- fits is like a mortgage, and, as the land is thereby per- manently increased in value, the expense must be borne by both the possessor for life and the reversioner. Should the assessment call for the payment of a given sum annually, like the interest of a mortgage, it would be the duty of the life-owner to pay the annual sum MODES OF LIMITED OWNERSHIP 153 accruing, and the remainder-man or reversioner the principal. The rule, perhaps, is without qualification that the occupant for life must pay all the taxes assessed on the estate. If, therefore, he neglects to do this, becomes bankrupt, and a receiver of his estate is appointed, he may take so much of the rent accruing from the use of the land as may be needed to pay the taxes due to the public. In Ohio a life-occupant who fails to pay the taxes forfeits the estate to the reversioner or re- mainder-man. This effect of his neglect in that state is by virtue of a statute. The life-occupant cannot take advantage of his own wrong in neglecting to pay taxes, to buy property at a tax sale and thus defeat the estate of a remainder- man or reversioner. As between these persons, the purchase simply has the effect of discharging the taxes. Furthermore, though the life-estate and remainder be destroyed by a valid tax sale to a stranger, the re- mainder-man still has a claim against the life-occupant for his neglect to perform his duty. On the other hand, the remainder-man may purchase at a tax sale and acquire a good title against the life-occupant for the reason that he owed no duty to him to pay the demands of the state. 4. The position of the life-occupant is deemed to be opposed to his reversioner. Consequently, his dis- position, for any reason, does not affect the rights of the reversioner. He may enter or recover possession within the period fixed by law after the death of the life-occupant, without regard to the length of time he 154 BUSINESS MAN'S LEGAL ADVISER may have been dispossessed. Again, one who enters on the land of the life-occupant, by virtue of an agreement with him, and remains there after his death, is trans- formed into a trespasser, for the life-occupant can do no act which affects the title or interests of the re- versioner. (a) All the income or profits that accrue while the life-estate endures belong to the life-occupant, and pass on his death to his representatives unless he has dis- posed of them during his lifetime. This includes the natural increase in live stock, interest on money, rents; but should the life-occupant lease the land and die before its expiration, the entire rent would belong to the reversioner. This is the rule of common law, founded on the principle that the rent cannot be divided. This rule has given rise to much controversy, and is so contrary to justice that, in many states, it has been set aside by statutory or judicial action. Therefore it may be said that, in most states the rent may be apportioned or divided in a case of that kind between the legal representative * of the life-occupant and the reversioner. In a few states, however, the old rule still prevails. (6) Another question growing out of the life-occu- pancy of land is, who are entitled to the crops planted before and maturing after the termination of the occu- pant's estate? The general principle is that annual crops belong to the representative of the life-occupant but, in some states, they descend to his heirs. In other language, they go to the executor or adminis- 1 By legal representative is meant his executor or administrator. MODES OF LIMITED OWNERSHIP 155 trator because they are a part of the occupant's personal estate, and do not belong to his heirs. The right to them carries also the right of entering the land, cultivating the crops, and harvesting them when they are ripe. Another question closely related to this is, what crops are annual within the meaning of this rule? It may seem to the reader as if such a question is too plain for discussion, but an attempt to answer it re- veals difficulties. Among the annual crops are corn, beans, hemp, flax, melons, potatoes, grasses, and the like, which are annually renewed. But what shall we say of crops that are grown on permanent roots? The law says that these, too, may be included; also turpen- tine taken from trees, because the produce is gathered anunally. On the other hand, clover and other grasses which endure for more than a year are not included, nor the fruits of trees growing on the land, even though planted by the life-occupant. To this rule an excep- tion is made of trees and shrubs planted simply for sale by gardeners and nurserymen who are life-occu- pants, as this is their sole object in planting them. The right to annual crops is not an incident simply to life-occupants alone, but to the occupants of all estates of uncertain duration. If a tenant, knowing that his estate will end before he can gather his crops, and thus knowing plants them, his folly is his own, and his successor will be the gainer. Again, the estate must be determined by the death of the occupant or by some act other than his own, for, by a voluntary abandonment of the land, he for- 156 BUSINESS MAN'S LEGAL ADVISER feits his right to claim the crops growing thereon. Thus, should a doweress marry and lose her right of dower, the crops growing on her land would also be lost. This right to the crops is not limited to the original occupant for life, unless he is restricted from under- letting his estate. His assignee or grantee possesses the same rights as himself, and, in some cases, may claim the crops when the original possessor could not. Thus, it is said that, if a widow should, during widow- hood, underlet her land and then marry, thereby losing her own right to the annual crops, her tenant would not, because he had kept within the law. (c) If the life occupant purchases an outstanding title or interest, the law requires him to share the benefit with the remainder-man or reversioner, if the latter will contribute his proportion of the cost of pur- chase. If the life-occupant pays more than his pro- portion he becomes a creditor of the estate for the excess. 1 As the life-occupant is entitled to its possession while the estate continues, he cannot be compelled to sell his interest, or to accept money for the use of the property. 1 (d) A life-occupant may sell his interest, but can- not by so doing defeat in any way the rights of the remainder-man. But the latter may, by ratifying an unlawful sale of his interest, render it valid. In some states land may be sold under order of the 1 Whitney v. Salter, i Minn.. 103. * Armiger v. Reitz, 91 Md., 334. MODES OF LIMITED OWNERSHIP 157 court by statute for re-investment, or to serve more perfectly the interest of minors, and other parties. This can also be done when all the parties interested are properly represented and desire its sale. (e) Sometimes the relations of parties requires that a present value be put on an estate for life. The Eng- lish rule, that an estate for life is equal in value to one-third of the entire estate, has been adopted in some states. But a closer and more general rule is to value the life- estate by the probable duration of the owner's life based on the tables of life expectancy and also the condition of his health, and other matters properly affecting each case. 5. Another important principle governing an estate for life is, no waste can be committed that will essen- tially injure or impair the future estate. This prin- ciple, which is easy enough to state, is very difficult to execute. Hundreds of cases of this nature have arisen, nor do we suppose the end of them will soon come. Waste may be either voluntary or permissive. The first is some act done which injures the inheritance; the other is the omission of some duty yielding a similar result. To tear down a house is voluntary waste; to suffer it to decay is permissive. The application of this rule to trees is sometimes difficult. The common law rule is that to fell timber, or to cause its decay, is waste. But what kind of trees are to be regarded as timber-trees? Some of them are clearly defined, like oak, ash and elm; others, like willow, are just as clearly not within the category; 158 BUSINESS MAN'S LEGAL ADVISER while others are in the doubtful list. An eminent author, whom we have before cited, says that, in this country, the question may be answered by ascertaining the standard or practice of a prudent farmer. What would he do with his own land, having regard to it as an inheritance ? ' This question has often arisen in states where the lands are covered with forests and cannot be culti- vated until they are cleared of the timber: In these the question turns on the custom of farmers and on the value of the timber; whether, by clearing the lands, so much timber has been cut as to injure the inheri- tance. Wood cut by a life-occupant in clearing the land be- longs to him and as an incident he may sell it; but he cannot cut wood expressly for the purpose of sale. Again, when sued for cutting and selling timber he cannot make a counter-claim for improvements on the premises at another time; but he can remove cut or decayed timber, to clear the land and give young trees a chance to grow. Sometimes timber is blown down; when this happens the life-occupant is entitled to a quantity for firewood. To carry off trees that have been blown down is to render himself liable for their value. Another kind of waste consists in opening gravel- pits and selling gravel or clay for brick-making. An occupant for life can neither take clay nor cut wood for the purpose of making bricks for sale, unless this has been the usual mode of improving the land. In such a 1 x Washburo, $ 274, p. 130. 8 MODES OF LIMITED OWNERSHIP 159 case he would have the right to continue to use it like previous occupants. For the same reason he cannot search the land for mines, and, after their discovery, open them and pro- ceed to work them. But mines already opened on taking the estate he may continue to work, even though he should exhaust them, for, in so doing he is simply taking the profits of the soil. Furthermore, he would not be guilty of waste in opening new shafts or pits following the same vein or veins as those already opened at the time of taking possession. The general principle, therefore, is, he can improve the land in the same manner as his predecessor, but cannot im- pose new burdens or new uses; and all improvements that he may have made on the land in working mines and in other ways belong to the reversioner whenever he takes possession. 6. The life-occupant must improve the land in the manner required by good husbandry, and any violation of this rule is waste. This phrase is a relative expres- sion varying greatly in different countries and places. A few illustrations may be given. For example, it would be waste to let pasture lands be overgrown with brush, to impoverish fields by constant tillings, to re- move manure made in the ordinary course of hus- bandry, to suffer a bank to become weak or broken whereby water will overflow. Once it was said that adapting a building to a new purpose, or converting two chambers in a house into one, would be waste. This rule has been displaced by the more rational test, will the act essentially injure the reversioner's in- 160 BUSINESS MAN'S LEGAL ADVISER heritance? In a well-cop sidered case it was remarked that the life-occupant has no right to pull down valu- able buildings, or to make improvements or alter- ations, which would materially or permanently injure or change the nature of the property. On the other hand, it cannot be waste to make new erections which can be removed at the end of the term without much inconvenience, leaving the property in the same situ- ation as before. A life-occupant who takes possession of a ruinous house cannot be made responsible if he suffer it to remain so; but he may repair it if there be timber on the land fit for the purpose. It would be double waste to suffer a house to go to decay and then cut timber to make repairs. (a) A life-occupant must make the repairs needful to prevent waste unless relieved by express direction or agreement. What these are may be clearly defined in some cases, but not in all. He is not required to expend large sums for this purpose, and especially for repairs to buildings untenantable at the time he took possession, or afterward destroyed by act of God or by an accidental fire not caused by his negligence. But he may repair an untenantable house. A life-occupant cannot tear down a house even if it be unfit for use, or the object be to erect a better building in its place. Nor can it be removed un- less it is not affixed in a permanent manner to the land. Should the life-occupant not make needful repairs within a reasonable time after due notice from the MODES OF LIMITED OWNERSHIP 161 remainder-man, the latter may make them and recover the amount from the life-occupant. A life-occupant cannot create a charge against the remainder-man for the money expended in permanent improvements however much they may add to the value of the estate, for they must be deemed to have been made for his own benefit. Consequently they pass on his death to the remainder-man who takes them without any liability therefor. 1 (b) The life-occupant is not required to keep the premises insured for the benefit of the remainder-man or reversioner. And if he does insure his life interest without intending to protect the remainder-man, the latter is not entitled to the excess if there be any over the value of the life estate. 2 But if a building is merely injured by fire, both the life-occupant and owner of the reversion are entitled to have the insur- ance applied to the repair of the building. 3 7. The ways of dividing the income from corporate stock between the life-occupant and the remainder- man, are not the same in every state. The four principal rules or ways may be given. First, cash dividends go to the life- tenant or occu- pant and stock dividends to the remainder-man. This is often called the Massachusetts rule. "A trustee needs some plain rule to guide him," so the court in that state has said, as if a clear pathway for him was of more importance than a just division of the income between the parties entitled to it. 1 Chilvers v. Race, 196 111., 71, 82. *SpaIding v. Miller, 103 Ky., 405. * Brough v. Higgins, a Gratt., 408. 162 BUSINESS MAN'S LEGAL ADVISER Second, another rule is, all dividends declared out of earnings, whether in cash or stock go to the life-occu- pant, while the division of property or its proceeds from other sources than earnings goes to the remainder- man. This rule has regard for the substance rather than the form of things. When all the earnings thus divided have accumulated since the testator's death the rule is just and reasonable. Third, in determining the character of a dividend, whether it is a real division of earnings or not, some courts hold that the action of directors is conclusive, while other courts have seen with greater clearness that a board of directors cannot by any resolutions or dec- larations or use of the money divest it of its real character, and that any attempt to do so should be prevented by proper legal action. Fourth, in many cases unusual or extraordinary dividends declared are composed in part at least of the profits or property existing at the time of the testator's death. In such cases the portion earned or existing before his death goes to the remainder- man, and the other portion to the life occupant. This rule is expanding, though it has not been adopted in any state. It is true that so long as directors act in good faith in making accumulations the court may not listen to the complaint of a life- tenant who desires a division, but when a dividend has been declared, whether in cash or stock, it would not be difficult for the court in many cases to determine whether it had been declared out of earnings or other property; and, if out of earnings, MODES OF LIMITED OWNERSHIP 163 what portion had accumulated since the testator's death. 1 8. There are two remedies against the life-occupant who is guilty of committing waste, which are worthy of brief mention. One is an action to recover damages for the injury; the other, and more common, remedy is an injunction to prevent him from committing waste. If, for example, the occupant is about to cut timber or open mines, or do any other thing which will injure the inheritance, the reversioner or remainder-man can apply to a proper tribunal to restrain him from doing these things. This is the common and more effective remedy, but the occupant may commit a serious injury before the remainder-man's * discovery. While the reversioner is journeying around the world the life-occupant may have improved his opportunity to despoil the other of his inheritance. When this has happened the only remedy left to the reversioner is to recover damage for the injury. 2. BY HUSBAND AS TENANT BY THE CURTESY 1. Curtesy denned. 2. There must be a legal marnage. 3. Wife's estate must be inheritable. 4. Birth of a child. 5. Duration of his estate. 6. It can be taken for his debts. 1 See i Bolles on the Modern Law of Banking, Sec. 40., Ch. IV., p. ioa, for a full exposition of this subject. In consequence of the enormous expan- sion of corporate wealth, questions concerning the division of income between the two classes are very important and constantly arising. i6 4 BUSINESS MAN'S LEGAL ADVISER 7. He may forfeit his estate. 8. How estate by the curtesy has been affected by legislation. 1. A husband acquires an interest or estate in land belonging to his wife after her death, and is called a tenant by the curtesy. 1 Four requisites are needed to create such an estate: her lawful marriage; her posses- sion of the land during her marriage; the birth of a child alive during her marriage;* and her death. 2. The marriage must be legal. Though a marriage is unlawful, if it is not set aside during the life of the wife, the estate of curtesy will arise at her death. The marriage cannot afterward be declared void. 3. The wife's estate must be inheritable. The curtesy extends to various equities and interest she had in lands; also to money which was intended to be laid out in them for her benefit. In such cases, as in others previously mentioned, equity treats the money as land itself; and the husband takes the same interest in the money that he would take had it been transmuted into land itself. When the wife's interest in land rests on a condition that may defeat her interest, the husband's curtesy may also be defeated. In other words, his curtesy never survives after the destruction of her interest. In accord with this principle, should the wife own land with two or more joint tenants, and die, her husband could not claim the curtesy because, from the very nature See Vol. VI., Chap. I., Sec. 3, 22. 1 See p. 126, 4, for exception. MODES OF LIMITED OWNERSHIP 165 of joint tenancy, the land belonging to the joint tenants on the death of any tenant passes to the survivors. Formerly, the wife's possession was regarded as essential to create an estate by the curtesy in her hus- band after her death; in many states this principle has been modified. So far, indeed, that on the com- pletion of her title, though she is not in formal posses- sion at the time of her death, her husband is entitled to his curtesy. A different principle applies to wild land, for the ownership draws the legal possession without having taken actual possession. In Kentucky, however, actual possession is requisite in order to give the curtesy in wild lands. The husband can have no curtesy in land of which his wife is possessor merely as a trustee. 4. The wife should have a living child who might possibly have inherited the estate, otherwise her hus- band's curtesy will not' rise. It is immaterial whether the child was born before or after the wife acquired her estate. The important fact is, would the child, if living, have inherited the estate? If so, the husband is entitled to his curtesy therein. As soon as a child is born the husband's right to curtesy is said to be initiate, or to have begun, and is consummate only at death. 1 This is the common law rule, but "in many states," says Washburn, "the necessity of a child being born is dispensed with by statute.'" 1 iWashburn, 343, p. 157. J iWashburn, 341, p. ij6. 166 BUSINESS MAN'S LEGAL ADVISER 5. His estate, though having its origin in his obli- gation to support his children, is only for his own life. Nevertheless, his right is just as complete, whether they need his support or not; or whether they live for a brief space, or for many years. 6. The husband's interest, initiate as well as consum- mate, can be taken for his debts, nor can he defeat the right by any disclaimer, nor will equity interfere in favour of wife or children to prevent his creditors from levying thereon. 7. He may forfeit his estate; in some of the states this is one of the consequences of legal separation. Recently, the Supreme Court of Missouri decided that a divorce deprived him of his estate by the curtesy, even though he was the innocent party to the proceed- ings, for it was voluntary on his part. In some states the interest of an innocent husband in his wife's land still continues. The reasoning of the Missouri court is very persuasive. 8. In concluding this section it may be added that this right of curtesy, which has long been recognised in Anglo-Saxon society, is founded on the idea that the husband is bound to maintain his children, and there- fore it is proper that the wife's property should, to some extent, be devoted to the same purpose. The property rights of married persons have been greatly changed by legislation during the last fifty years. Thus, a woman is entitled after marriage to retain and acquire property very much as an unmarried one; also to make contracts with great freedom; consequently, in many states, a husband's right by the curtesy in MODES OF LIMITED OWNERSHIP 167 his wife's real estate after her death has been abolished. In a few the right remains greatly modified, so a state- ment of the leading principles pertaining to the subject has been given. 3. BY WIDOW AS DOWER 1. Dower denned. 2. Priority of husband's creditors. 3. To what estate dower belongs. 4. She must join in every deed with her husband, to convey a good title to his land. 5. There must have been a valid marriage. 6. How her dower may be lost. 7. Assignment of dower to her. 8. Modes of assigning it. 9. Her remedy when it is not assigned. 10. Assignment of money in lieu of dower. 11. Provision by jointure. 12. Provision by will of testator in lieu of dower. i. Dower is the interest a wife possesses in her hus- band's land after his death, and is largely regulated by statute. 1 Usually it is an interest for life in the use of one-third of his real estate. As long as the married relation exists, her interest is in the nature of an en- cumbrance, or inchoate right, which she cannot assign or sell except by joining in a deed with her husband. At his death the right becomes consummate or per- fected; until then, it is not an estate, strictly speaking, See Vol. VI., Chap. I, Sec. 3, aa. 1 68 BUSINESS MAN'S LEGAL ADVISER in any land. The setting apart of land for her use is called the assignment of dower; and, when this is done, she has a life-estate therein with all rights and incidents pertaining to an estate of that character. 2. In some states she holds her dower subject to the claims of her husband's creditors; generally, her dower is preferred to them. Of course, a mortgage or other lien of that nature on the land, existing at the time of fiis death, is not impaired by that event; but the or- dinary claims of creditors against him cannot be trans- formed into legal judgments and her dower lands be taken in payment. 3. A widow has dower in any estate belonging to her husband which her children, if any, could have in- herited as his heirs. It includes everything definable as land. She, therefore, has a dower in land that has been mortgaged by him, subject to the mortgage; in short, to all estates in which he possesses an equitable as well as a legal interest. But it does not include an estate held by him as a trustee. When the wife's dower is in mortgaged land, her interest does not become complete until after the fore- closure and satisfaction of the mortgagor's claim, Her dower then attaches to the remainder, and she is entitled to the use of such a portion as the law pre- scribes. Again, when it is necessary that land in which she possesses an interest should be sold, her right will follow and attach to the proceeds of the sale. Of course, the widow's right of dower in her hus- band's land is affected by his title thereto. If he MODES OF LIMITED OWNERSHIP 169 was never the possessor before and after marriage, because another person was in possession as adverse owner, dower will not attach. In such a case her right will become effective only after he has recovered possession. No length of time is required after his possession to secure her right of dower. The vesting of the possession in him, even for a short period, is sufficient. To this rule must be noted an exception. She will acquire no dower interest in land of which her husband may be the nominal possessor. For example: some- times a conveyance cannot be made directly to a person, but only through the medium of another. Should this medium happen to be a married person, his wife would acquire no dower in the land of which, for a moment, he was the legal owner. Another ex- ample may be given that of a mortgage. Suppose a married man should purchase a piece of land and give a mortgage thereon to the vendor for^a part or all of the purchase price. Strictly speaking, there is a moment of time during which he is the entire owner. In truth, it was not intended between the parties that the wife should acquire a dower or inchoate right there- in which should precede the mortgagee's interest. Save exceptions of this character, the wife is entitled to dower in all of the lands of her husband, wherever they may be, subject to the laws of the place where they may be located. 4. By reason of her inchoate right or interest in her husband's land, the law requires, in nearly all the states of the Union, that she should sign every deed convey- 170 BUSINESS MAN'S LEGAL ADVISER ing it, in order to insure a good title to the purchaser. This requirement is now well understood, and blank deeds are usually printed conforming with the law. Not infrequently the wife has not signed, doubtless from accident, and therefore has given a defective title, amended, perhaps, if at all, at considerable cost and after long delay. The legal requisites pertaining to the execution of such deeds are defined by the stat- utes of the different states. 5. Like an estate by the curtesy, a legal marriage is necessary to sustain an estate of dower. If it is a marriage which can be set aside, but is not, then it is known in the law as a voidable marriage, which, unless avoided during his lifetime, will sustain her right of dower on his death. 6. The wife's right of dower may be lost or barred by a legal separation or divorce. By a remarriage, or a setting aside of the divorce, her dower rights revive. In other words, it is necessary to support her claim to dower that she should be the wife of the husband at his decease. Consequently, if they have been Sdivorced, whatever may have been the cause, the dower is ex- tinguished, unless the statutes, as some of them do, contain a saving clause, giving the innocently divorced wife the right to enjoy her dower as if she were still his wife. Again, her dower maybe lost by the defeat or destruc- tion of her husband's estate. For example, another person may claim the title and by a proper legal pro- cedure, prove his better title thereto and thus become the possessor. In such cases, in which the husband MODES OF LIMITED OWNERSHIP 171 really has no estate at all or in which it has been taken away from him by legal process, her interest therein also fails. Or, to change the form or expression, she cannot acquire or preserve a dower estate after her husband fails to acquire or preserve a still greater one. While this is the law, the wife's inchoate right of dower cannot be affected by the action of an adverse possessor of her husband's land during the period of marriage, or, to use a technical term, during coverture. Her right may be defeated by the exercise of eminent domain by the state. This exercise of public power is paramount to every individual right in land, and ap- plies as much to women under all conditions as to men. 7. On the husband's death his wife is entitled to an immediate assignment of her dower. Until the assign- ment is made, for a period of forty days she has a right, at common law, to reside in the principal house on the estate, provided she does not marry within that time. This right is called her quarantine. The common law period has been changed in many states by statute. The general rule is that dower must^be set out to her during this period; if it be not, the law prescribes for her the remedy. 8. There are two modes of assigning dower, which may be briefly described. The dower of "common right," so called, is to give her a definite piece of real estate. This is done by the sheriff under proper direc- tions from the court. The kind of land set out to her depends largely on its nature, location, etc., and need not be more fully described. The extent of her one- third interest is determined by the market and pro- 172 BUSINESS MAN'S LEGAL ADVISER ductive value of the land, instead of the quantity. She is entitled to such a portion of the estate as will yield to her one-third of the rents and profits of the whole. The other mode of assignment is called "against common right." This is done by agreement. This mode will effectually bar the claim to dower of common right, if properly and legally executed. In adopting this mode it is the common practice for the widow to give a release, under seal, of her dower right. 9. On refusal to assign dower to her, as the law requires, she may have recourse to ample remedies. One of them is an action at law to recover it; another is a similar proceeding in equity; a third and more common practice is a summary proceeding in the court having direction of the settlement of the estate. The action must be brought in the county where the land lies, to which the law of the place must be applied. As the action is personal it dies with the widow. Success in her action is followed by judgment for the assignment of dower and sometimes for damages also for the delay in assigning it, though not at common law. They are a matter strictly of statute. 10. In some states, by statute, money is assigned instead of land as dower. A gross sum is assigned in such cases instead of an annual share in the income. 11. Again, dower may be barred by a jointure, which is a provision made for the wife by the husband out of his property. This is done before marriage, and is a complete bar to her dower only when made before that event. When made afterward she has a right to elect MODES OF LIMITED OWNERSHIP 173 whether to take her jointure or her dower, but cannot take both. Formerly, jointures were frequently made but, of late years, they have given way to marriage settlements, or specified agreements in which the terms greatly vary with circumstances. 12. Finally, a testator sometimes provides for his widow in lieu of dower. This is not unusual. After he has done so she can elect either to take what the testator has given her, or to reject it and claim her right of dower. Suppose, for example, that a testator should possess a large amount of real property, and in his will should give his wife a comparatively small sum of money on condition of renouncing her right of dower, very likely she would reject the legacy and claim her right of dower, as she has often done. If she accepted the legacy it would completely extin- guish her right or interest in the real estate. 4. BY HOMESTEADERS 1. Object of legal protection of homestead. 2. Constitutionality of the laws. 3. Right cannot be affected by subsequent legislatioa. 4. How the courts regard homestead laws. 5. What is a homestead. 6. Amount of land it includes. 7. Meaning of head of family. 8. What debts for which homestead cannot be taken. 9. What rights the homesteader can exercise. 10. How homestead can be destroyed. 11. Wife must join hi conveying homestead. 174 BUSINESS MAN'S LEGAL ADVISER 1. Many of the states, within a comparatively short period, have conferred rights on the owners of home- steads. Their principal object is to protect them from seizure for the debts of their owners. Such a policy is deemed worthy by the state, as other per- sons beside the homesteaders are interested in their preservation. 2. As the Federal Constitution prohibits the states from passing laws impairing contract obligations, no state can withdraw the land of an individual from his contemporaneous creditor. Could a homesteader be- guile his creditors with the knowledge of his great possessions and afterward secure such legislation, they would be greatly wronged. The constitutional provision relates solely to con- tracts between individuals, and to no other kind of property. But a judgment rendered in an action not founded on a contract, but on a wrong, is not affected by this constitutional requirement. Consequently, a homestead law preserving the land of a homesteader from such a judgment would not be an invasion of the constitution, because the wrong-doer's liability did not spring from the violation of a contract. 1 3. The homestead right, having once attached to the land, cannot be changed, without the owner's consent, by subsequent legislation. Thus, an exemption of a specified number of acres of land in the country or city, which has been impressed with a homestead character, cannot be affected by the subsequent incorporation of the land without the owner's consent. The owner 1 McAfee v. Covington 71, Ga., 373. MODES OF LIMITED OWNERSHIP 175 may, however, abridge his right by dividing it into parcels and offering them for sale. 4. At first the courts, looking on homestead legis- lation with an unfriendly eye, construed it strongly against the homesteader. Through more familiarity with its operation and with the growth of public senti- ment, the courts now give full effect to its intent and purpose. 5. A homestead, within the meaning of this law, is the home or permanent place or residence of the owner of the land, and includes the area specifically prescribed, which varies greatly in the different states. Nor is its character changed by the owner's temporary absence. On the other hand, it does not partake of this character through mere intention. The same rule does not apply to such land as applies to land acquired by a person for the purpose of exercising the right of suffrage. To stamp land as a homestead it must be used as a home. 6. Whether the amount of land that may be thus marked must consist of a single piece, or may consist of several pieces, is an open question. In an Arkansas town a person purchased one-third of a town lot, on which was a building wherein he kept a retail store. Afterward, he purchased the remainder of the lot and erected thereon a residence. Though the parts were separated by a fence, the entire lot still retained its homestead character. Nor was its character as a homestead affected by mortgaging the residential portion only and by a relinquishment on the part of the owner's wife of her dower rights therein. 1 76 BUSINESS MAN'S LEGAL ADVISER Again, when a statute prescribes that the land must be a single tract or piece, can any portion extend on the other side of a street? If the owner is also the owner of the land in the highway, the public simply possess- ing an easement or right of way over the same, the tract is regarded as an entirety and within the law; but if the several portions, claimed as a homestead, are separated by a street which belongs to the public, the owner can claim as a homestead only that piece or portion on which his house is situated. 7. Of two or three other questions perhaps the most important is, what is meant by the head of a family, a phrase contained in every homestead act? Any person, man or woman, married or unmarried, on whom rests the duty to provide for the support of one or more persons sustaining the family relation. For example, an unmarried man with whom reside his widowed sister and her children; or, for a simpler illustration, a man who supports his mother. An unmarried woman with whom live the children of a deceased sister is con- sidered by the homestead law as the head of the family. Furthermore, they need not all live under one roof, or be employed about the house. It is the relation and the dependence on that relation, not the mere aggrega- tion of individuals, that constitute the family. On the other hand, the moral obligation will not suffice if the dependents do not reside with the homesteader, even if he actually supports them; nor is a temporary support sufficient. Finally, the obligation to support must not arise simply from contract alone, as distin- guished from obligation founded on dependence. MODES OF LIMITED OWNERSHIP 177 8. Let us ascertain more definitely what debts are utside the pale of homestead legislation. Taxes for municipal purposes may be collected; and purchases for improvements are a lien on the land. Thus, in Georgia, the expenses of an attorney, rendered in de- feating a homestead, were considered as somewhat akin to purchase money. Furthermore, the original debt retains this character, and cannot be extinguished by any assignment or renewal. But money borrowed to pay off a preexisting debt does not come within the rule. On the other hand, a person who advances purcnase money at the time of buying, for the express purpose of securing a conveyance to the vendee, on his promise to execute a mortgage for the amount, has a lien on the land therefor. 9. The head of a family cai sell or mortgage his homestead, whether he is solvent or insolvent; and his creditors cannot prevent the sale, for, having no claim on the homestead, their rights are not impaired. His right is equally complete to dispose of one homestead and with the proceeds to acquire another, which is just as safe from the invasion of creditors. 10. A homestead may be destroyed or abandoned, but premises that have once been impressed with a homestead character do not lose it by the removal of the dependent members by death or marriage. In other words, while no man who is not the head of a family can become a homesteader, he may cease to be a family-head without ceasing to be a homesteader. Again, there must be a substantial compliance with the statute prescribing a form of waiver for abandoning 178 BUSINESS MAN'S LEGAL ADVISER a homestead; no expression of intention will be effectual. And whether one has abandoned his homestead, or not, is a question of combined residence and intention. Temporary absence for purposes of health and pleasure will not work an abandonment, but a departure with the intention of abandoning the premises as a perma- nent residence will destroy its homestead character. ii. The statutes generally prescribe that the home- stead of a married homesteader shall be conveyed only with his wife's consent. 1 5. BY LEASE; LANDLORD AND TENANT 1. Uncertainty of a verbal lease. 2. Who is presumed to be tenant. 3. When the law requires a lease to be written. 4. Names of parties to a lease. 5. Period for which a lease runs. 6. Language of a lease. 7. Distinction between a lease and an agreement for a lease. , 8. The parties must be competent: a. Minor, b. Guardian, c. Executor and Administrator, d. Trustee, e. Partner. 9. What can be leased. 10. Lease must be accepted. 11. And recorded. See Vol. VI., Chap. I., Sec. 3. 14. MODES OF LIMITED OWNERSHIP 179 12. Unlawful lease is void. 13. Covenants or agreements in a lease: a. Quiet enjoyment, b. Agreement against waste, c. Agreements are personal, or run with the land, d. Latter kind described, e. May run with all or part of land, /. Who are affected by them. 14. Construction of inconsistent provisions. 15. How lessee may use the premises. 16. Lessee's right to assign and sublet. 17. An assignment may be prevented by agreement. 1 8. Distinction between sublease and assignment. 19. A tenant at will can assign nothing. 20. Lessor cannot sue subtenant, but can sue assignee. 21. A non-lessee in possession is presumed to be as- signee of lessee. 22. A lessor may assign his reversion. 23. Rent and reversion may be separated by lessor. 24. Distinction between special assignment by lessee and by legal operation. 25. Landlord does not warrant fitness of premises. 26. Repairs. 27. Liability of parties to repair or rebuild after fire. 28. Lessee must pay rent though lessor does not repair. 29. And after destruction of building by fire. 30. Tenant cannot make material alterations. 31. When rent is due. 32. Insurance does not affect rent. 33. Renewals of lease. i8o BUSINESS MAN'S LEGAL ADVISER 34. Option to purchase. 35. Eviction: a. It stops rent, 5. What is an eviction, c. Eviction from part has same effect, d. Eviction must be effected by landlord, e. Effect of eviction by one having paramount title. 36. Fixtures: a. Different rules apply to different relation- ships, b. Intention, c. Mode of annexing, d. Recovery for removing fixtures, e. Effect of re-leasing on lessee's right to remove, /. Effect on lessee's fixtures in terminating lease. 37. Is tenant or landlord responsible to third party for injuries? 38. Who is liable in apartment houses. 39. Forfeiture of lease. 40. Effect of surrendering the lease. 41. Merger of a lessee. 42. Lessee cannot question lessor's title. 43. Letting on shares. 44. Tenancy at will described. 45. How created. 46. May be applied by law. 47. Cannot acquire title against owner. 48. Rent is not always payable. MODES OF LIMITED OWNERSHIP 181 49. Tenant's right to crops. 50. How tenancy may be ended. 51. Creation of tenancy from year to year. 52. Tenancy from month to month. 53. Notice to quit. 54. This must be distinguished from notice of summary proceedings to recover possession. 55. Effect of agreement on notice to quit. 56. Effect of selling land. i. Leases of land are multiplying in number, though happily not in complexity. The modern law has been clarified by statute; nevertheless there are many ancient principles remaining, which it is especially desirable to understand because these diverge so far from the common understanding on which individuals, who do not know the law, too often rely. Perhaps no subject will be considered of more practical importance to a larger number than this concerning leases and the mode of using leased property. First of all, it may be remarked that an oral, or to use a legal phrase, a "parol lease," is a very one-sided agreement in favour of the landlord. Is proof wanted? Should a man rent a building for a year which burned down within a week after taking possession, through no fault of his, nevertheless he would be required to pay the rent to the end of his tenancy, nor would the land- lord be required to rebuild, but might serenely keep still and compel his tenant to pay rent, as if he were in undisturbed occupancy. In some states this com- i8 2 BUSINESS MAN'S LEGAL ADVISER mon law rule has been changed by statute. Con- sequently, it behooves every one who rents a building, however short the time, to make a written lease em- bodying the entire agreement. 2. A person in possession of land who pays rent to one claiming as owner is presumed to be a tenant. But the presumption of such relationship may be over- come by showing that the payment was by mistake, or by other equally clear circumstances. In such cases by statute in many states a tenancy from year to year will be presumed. A presumption of tenancy arises when an entry and occupation are with the owner's permission. A tenancy cannot be implied, however, where an express contract or an arrangement between the parties shows that it was not intended by them to occupy the relation of landlord and tenant, for example, if there is a permission to occupy without rent, or the possession is not exclusive. 1 3. As a lease is an agreement for the use of land, a statute requires that it shall be in writing, unless the period is very short in many states one year. In some of them, however, the period is longer three years, thus corresponding with the English statute. The statute prescribing this requirement is one of the most important in the entire body of the law, and is known as "the statute of frauds," first enacted in England, and afterwards re-enacted in whole, or in part, in nearly every state of the Union. A valid lease for a year may be made verbally, even though the time 1 Sec 27. * 124 Cyc., 883. for taking possession is not immediate. Furthermore, if it exceed the statutory period, it is not absolutely void, but operates as a lease at will. 1 4. The person who leases is called the lessor; the one who is to come into possession, the lessee. The latter does not own the land, but has only a limited right to the use of it. The extent of this use or occupancy, like so many other questions in the law, cannot always be easily ascertained. In a general way, it may be said that the lessee is the possessor, and can make such use of the land or premises during his term as the lease or the law prescribes. For example, on one occasion a person hired a store, on the outer wall of which people posted advertisements, paying for the privilege. The question at once arose, could the lessee sell this privilege, or did the landlord still have the right? How fully the lessee can use the premises will be considered elsewhere.' 5. A lease is for a definite period, usually called a term. A lease from the first day of July begins on the second day and lasts through the anniversary of the day from which it was granted. Very often the term of the lease is expressed definitely leaving no question open concerning the precise number of days for which it is to run. A lease may be made for a time that can be definitely ascertained. Thus, a lease to A for twenty-one years, should he live so long, would be valid. So would a lease to A during his minority, as the time of attaining 1 See Section 44 of this chapter for the description of such a lease. See 14. 184 BUSINESS MAN'S LEGAL ADVISER his majority is fixed by law. In like manner a lease for a year, with the privilege of holding for three years from a certain day, means the right to remain from year to year, not exceeding three years; and the tenant may quit at the end of any year on giving proper no- tice. Again, a lease for a year, and so on from year to year, is regarded as a lease for one year only. If the tenant continues for a second year without the lessor's dissent, it is a lease for that year, and so on for each subsequent year. A lease may be created to take effect at a future date, provided the period of beginning is not so far away as to violate the law concerning the creation of future estates. In our modern American juris- prudence this question is rare; under the English sys- tem, whence this rule is derived, the legality of leases that are to begin in the future has caused much legal controversy. In Massachusetts a term for one hundred years or more is deemed a fee or absolute estate, so long as fifty years remain unexpired. In Ohio lands per- petually leased (or renewable forever), though in one sense they are leased, in another sense, are absolute property, and may be taken for the debts of the lessee. In Connecticut lands that were free from taxation because they were devoted to religious uses were leased for the period of ninety-nine years to escape taxation; and the purchaser, supposing this method of evasion would be successful, paid a much higher price for them. The state pounced on the new owner, declared that the lease was simply an evasion to escape 18$ taxation, and that for taxation, at least, the land must be regarded as an absolute estate. Through a costly law-suit, therefore, did the buyer purchase his wisdom, like many others before and since his day. If the duration of the term is not definitely expressed in the lease, resort may be had to other sources to find an answer. A lease for a year is not converted into a tenancy from month to month by the fact that receipts for rent paid state that the letting is for one month only. When a lease is to run for one or more years "from" a certain day, the corresponding day in the year in which the lease terminates is to be excluded in compiling the duration of the term unless there be a contrary custom. A lease "to" a certain day ends with the expiration of that day. And leases of doubt- ful duration must be construed favourably to the tenants. Thus if there be a doubt on which of two days a lease is to terminate, the lessee may make the election. A tenant in undisturbed possession of the leased premises cannot deny the title of his landlord. By statute in New York agreements which do not specify the duration of occupation, extend to the first day of May next after possession is taken. Obvious mistakes of the parties in computing the term or speci- fying the day of termination are judicially disregarded. A lease for a fixed term which gives the lessor or the lessee an option to continue the tenancy for an addi- tional term terminates with the expiration of the term first mentioned unless the option is exercised. Either party may be given the option of terminating the lease on notice. The term continues in such a case until i86 BUSINESS MAN'S LEGAL ADVISER the option is exercised by giving notice of an inten- tion to terminate the lease. 1 6. Any language will suffice showing the intention of the parties. The words generally used to indicate this are: "grant," "demise," and "to farm let." They have a technical and extended meaning, and imply that the term of a lease is to begin presently, and not at a future date, or on a contingency. Neither of them is indispensable to constitute a valid lease. A lease should describe clearly the premises that are to be leased, for a defective description cannot be cured by outside or additional evidence. The lease of a building is a lease of the land on which the building stands. Whether a particular place is a part of the leased premises depends partly on the question of boundary, but more especially on the question of intention. But a reservation in the lease must be so construed as to enable the lessee to conduct the business for which he leased the premises. With the lease of a part of the building there passes as an incident everything reasonably necessary to its enjoyment. Thus if a building consist of several apartments so constructed that all occupants must enter and depart by the same hall and stairway, these become a way of necessity on the lease of the apartments. " A memorandum expressing the consent of the owner that another shall have immediate possession of premises, and shall continue to occupy them at a specified rent and for a definite term, is a sufficient lease. In general, any agreement under which one 1 24 Cyc., 961. MODES OF LIMITED OWNERSHIP 187 person obtains the right of enjoyment to property of another, with his consent, and in subordination to his right, may create the relation of landlord and tenant. As between parties, an agreement may be a lease, while as to third parties it may be con- strued as a building contract. Where an instru- ment has the effect of giving a holder an exclusive right of occupation of the land, although subject to certain reservation, or to a restriction of the purpose for which it may be used, it is in law a lease of the land itself. " l 7. Sometimes a lease is made, or at other times an agreement for a lease, and the parties themselves have not always known which thing they intended to do. To the reader this question may seem to be very near the edge of the absurd, but as the language used in a lease, or in an agreement for a future lease, is often nearly the same, the difficulty, in truth, does arise. It can hardly appear in agreements that are to go into immediate operation, but only in those that are to be operative at a future time. The question is important because, if the agreement is a lease, then it cannot be varied or contradicted by other evidence, any more than any other completed contract or agree- ment. On the other hand, if the agreement be simply for a lease, then, from its very nature, it is incomplete and is open for revision. 2 1 34 Cyc., 901. * "The importance of this distinction between agreements to lease, and agreements which operate as leases, results, among other things, from this: that, as an executed, written contract must speak for itself, and cannot be added to or corrected by parpl, if the agreement be held to be a lease the par- ties will be bound by it, as written, with its implied as well as its express cove- nants and stipulations; whereas, if it is a mere agreement for a lease, these may be rectified or supplied before it is executed, or the party may refuse to execute it." i Washburn, 622, p. 362. 188 BUSINESS MAN'S LEGAL ADVISER The test, whether the agreement is a lease, or only an agreement for a lease, is its completeness. 1 If nothing is left incomplete then the agreement is a lease; otherwise it is stamped with the other character. Thus, an agreement to let land to a company to place sand thereon, for a given period, was held to be an actual letting, and binding the parties thereto. In another case A wrote to B that he would take his house at a specified rent for two years if he would put a furnace therein, and B replied that he would accept the offer, and at once put a furnace into the house before the date was fixed for the term to begin. This was held to be a lease, and not a mere offer for one. One more illustration: A proposed to B, in writing, to hire a shop of a specified size at a fixed rent on a piece of designated land, if he would erect the building. B accepted the offer and built the shop, and A took pos- session, B did not own the land and did not complete the shop within the time stipulated. Nevertheless by accepting the offer and occupying the shop, the agreement became effective. It may be added that the lessor's failure to complete the building by the time fixed in the agreement would have released the lessee, had he wished, from his obligation. 8. To make a valid lease of course the parties must be legally competent. If one of them is non compos mentis the lease is void unless it has been executed. (a) Leases made by a minor are not void, but may be avoided. To have this effect some positive act on his part is required. A lease may be disaffirmed or ([.* iWashburn, 621, p. 361. MODES OF LIMITED OWNERSHIP i8o. v avoided by a minor before he attains his majority, though the rule on this subject is not uniform in all states. (6) A guardian may lease his minor's land during the period of his minority. Were the lease made for a longer period the ward could, if he pleased, after attaining his majority, have it set aside for the excess. A lease made by a guardian may be set aside or defeated by a new guardian. This principle is recognised in several states. The same rule applies to guardians of insane persons. A lease terminates on the death of a ward, whatever may have been the terms. Whether it would bind the lessee for the original term, if the heirs of the ward should choose to affirm the lease, is an un- settled question. A parent has not the same right as a guardian to lease or deal with the land of his minor child. (c) Executors and administrators, who have a lease coming to them as a part of the possessions belonging to the deceased, may dispose of the whole or carve out smaller estates or interests by underletting. If there be two or more executors, a lease or transfer of the term by one of them, if purporting to be of the entire in- terest, will pass the same. ( the rent will be apportioned and must be paid for the remaining part. If the eviction is by the lessor himself the tenant may elect whether to abandon the premises entirely and put an end to his tenancy and rent altogether, or to retain such part as remains, free from liability to pay any rent, so long as the eviction continues. Suppose a person is evicted by the state in the exer- cise of eminent domain. Must he continue to pay rent? In Missouri the rent ceases; or, if evicted in 2o8 BUSINESS MAN'S LEGAL ADVISER part, he must pay rent in such proportion as the premises still occupied bear to the entire property leased. In some states he must pay rent to his land- lord as before, and, having done so, can demand of the public compensation for the loss sustained through its action. 36. On the expiration of a lease some very nice questions often arise between the tenant and his land- lord concerning the removal of many things called fixtures, which he may have attached to the premises during his occupancy. There is no occasion for diffi- culty in drawing the line between furniture and fixtures because the former is clearly separated from the building and can be removed without the slightest injury thereto; but fixtures are something attached to the premises, although some of them may be used as furniture. (a) Different rules apply to persons in different relations. Thus, in the sale of a piece of land with a house thereon, the law favours the purchaser; as between these parties the law regards as fixtures many things, which are not thus regarded as between a landlord and tenant. (6) The principal rule to determine what is a fixture in every case is that of intention; but this rule is, at best, an uncertain guide. Unhappily, after many years of judicial inquiry, varying decisions are still rendered. As a general rule, whatever a tenant affixes to the premises during his occupancy may be removed, if this can be done without material injury to them. Furthermore, a conveyance by the landlord will not MODES OF LIMITED OWNERSHIP 209 interfere with the tenant's right of removal during his tenancy. But, if he has not been active and complied with the rules of law in removing his own while he was in possession as tenant, his right of removal is gone. (c) For the purpose of establishing a more practical rule concerning their removal, fixtures have sometimes been classified into trade and agricultural. This classi- fication, however, has not proved helpful. The mode of annexation is another criterion. In England this doctrine plays a prominent part in ascertaining whether the thing annexed to the land is a fixture or not. At least three kinds of cases may be readily imagined for the application of this principle. First, the tenant of a mill may be hiring for a long period, and the struc- ture itself may be built in a very enduring manner. An office is needed, and he may construct one in har- mony with the architecture of the other buildings, possessing an appearance of permanency in style, kind of material, etc. Should he do this a court would not be long in deciding that the structure was annexed with a view to permanency, and therefore as a part of real estate. Again, an office may be erected either on blocks or in parts that can be readily removed. A court would just as quickly decide that the form of structure indicated clearly enough the intention of the tenant to remove it at the end of his tenancy. The third example may be given that of a structure erected very cheaply, and not in harmony with the other buildings. A court would just as quickly decide that the tenant had no thought of removal, but 210 BUSINESS MAN'S LEGAL ADVISER simply intended to leave it there on his departure, as a thing not worth further notice. From these examples it is evident that the mode of annexation, which plays such a prominent part in the English law, does not afford a luminous rule for the determination of the question. In some cases it will yield a satisfactory answer; in others none whatever. (d) For fixtures unlawfully removed by the tenant the owner of the land may maintain an action against him to recover the value of them, which is technically called an action of trover, or he can maintain an action to recover the things themselves, such being known as an action of replevin. Sometimes the question arises in purchasing fixtures with real estate honestly supposing that both were included, though, in truth, the fixtures were not whether the real owner can recover them. If, for example, a thing is hired by a tenant and annexed to the land, which is afterward sold to a bona fide purchaser, can the real owner recover the thing itself? Doubtless, he would have a good claim against the vendor or seller for the value of the things, but some courts have declined to give him any other remedy. In all cases in which persons have notice of the (owner- ship of fixtures, they cannot be bona fide purchasers of the same. It may be added that, in conveying land, an oral exception of the fixtures is invalid, be- cause such a reservation is a contradiction of the written deed, and no principle of law is better under- stood than that the form of a writing cannot be con- tradicted by oral evidence. MODES OF LIMITED OWNERSHIP 211 (e) Lastly, the silence of a lessee who erects a build- ing on his land, and, at the expiration of his term, takes a new lease of the premises and says nothing about the building, is regarded as an abandonment of his right to removal. It therefore becomes a part of the land itself, as the new lease carries the building with its fixtures; and the lessee, by accepting it, adopts this construction. Nor will equity interpose in favour of a tenant, however expensive may have been his improvements, who has not removed them during his tenancy, unless he has been prevented from re- moving them by injunction. In such a case he is entitled to a reasonable time to remove them after its dissolution. (/") A different construction is put on a lease that terminates by the landlord's forfeiture. It is said that the tenant's right to remove fixtures is gone, whether this occurs by the ending of the lease or by an entry for forfeiture. Thus, a tenant who held over after the expiration of his term could not remove fixtures after his landlord had actually entered on the premises. The tenant's right to remove them is incidentally de- termined by the landlord's re-entry. This is the clearly settled rule; but a tenant holding for an un- certain term has a reasonable time to remove them after the close of his tenancy. In one of the cases, wherein a lessee was holding for an indefinite period, he erected an ice-house and filled it with ice. Doubtless, the lessor was watching him, for soon afterward he ter- minated the lease. Nevertheless, the tenant was per- mitted to sell the ice as soon as he could, which tool: 212 BUSINESS MAN'S LEGAL ADVISER nearly two months, and then to remove the house. In other words, he was given a reasonable length of time to secure his property. Again, an agreement with the lessor whereby the lessee has the right to remove fixtures at the expiration of his term, implies within a reasonable time afterward. And a tenant who has been wrongfully restrained from removing his fixtures will also be allowed a reasonable tune to re- move them after the restriction has been removed. On the other hand,a tenant for an uncertain term who terminates the tenancy himself before removing his fixtures loses his right to retain them. 37. For an injury sustained by a third party by a defect in the premises of a tenant, the law presumes that the tenant, and not the landlord, is responsible. But this is only a presumption, which may be set aside by fact. The liability to a third party depends usually on the question whether the tenant has the entire control of the structure which caused the injury, or is only one of several tenants. For example, one who is travelling along the street, and is injured by ice or snow falling from an awning, may recover from the tenant who has the sole control of the building. If the owner has a general control, or of the roof, or occu- pies a portion, he will be liable, instead of the tenant, to the injured person. For an injury resulting from the erection of the building itself, or from a defect in its construction, the landlord is responsible. Again, if the leased premises are, at the time of leasing, a nui- sance, the landlord is liable for creating it, though the tenant may also be liable for continuing the nuisance. MODES OF LIMITED OWNERSHIP 213 These principles, however, have been changed in many states by statute. Other principles of similar nature may be mentioned. When a person leases land bounded by a street, which the tenant agrees to keep in repair, and a passer is injured by defective grading, for example the tenant alone is liable, even though neither he nor the landlord knew of the defect. But neither is liable for defects in a highway caused solely by the wrongful act of another; the public alone is responsible. Again, a passer who is endangered by an excavation made by a builder and afterward continued by a tenant, may recover from either. Lastly, one who dedicates to the public across his land a way which is accepted, though unsafe, is not responsible to a person who is injured in using it. A tenant or owner of land is not responsible to another who is injured by an act done without his agency or permission. For example, neither tenant nor owner could be held for the obstructive act of a third person to a watercourse, causing injury to a mill- owner below. 38. What rule applies to tenants in apartment houses? A tenant who is injured from the defective condition of a part of a house not included within his own lease, but which he can use in common with the other tenants, has no redress against his landlord. On the other hand, a landlord who has entire control of the defective part of the house is liable to his tenant for any injury derived therefrom. A lessee, unless restrained by the terms of a lease, 2i 4 BUSINESS MAN'S LEGAL ADVISER may use the premises for any lawful purpose he may choose, though this may be different from the purpose intended, if not essentially affecting or in any way injuring the premises. In one case a person hired a house for a hotel, making no agreement concerning the mode of its occupancy, and converted it into a semi- nary. The lessor had no ground for complaining. On the other hand, if the mode of occupancy is fixed by a lease, the tenant may be enjoined from using the premises otherwise; indeed, a misuser may have the effect of working a forfeiture of the lease. The lessor may expel him, as a landlord did whose tenant used for an auction room a shop that was rented to him for the dry goods shopping business. Often though no special damage results from a changed use of the prem- ises, the lessor's right to eject the lessee is unques- tioned. 39. Everywhere courts are strict in not declaring a lease forfeited. In other words, every effort in har- mony with justice will be made to preserve it. Thus, a lease contained a covenant not to assign or underlet; also a condition, that, if the lessee failed to pay rent or committed waste, the lessor might enter and expel him. An assignment by the lessee was held to be a mere breach of the agreement, and nothing more. Before a lessor can avail himself of his right to enter into possession and terminate the lease because of the lessee's failure to observe all the agreements or cove- nants therein, he must do several things. First, if the reason for entering be that the lessee has not paid his rent as promised, there must be a demand when it MODES OF LIMITED OWNERSHIP 215 is due and payable. In like manner, if a lessee is to pay the taxes, the lessor before entering to enforce a forfeiture for neglect on the part of the lessee to pay them, must demand their payment. Again, this must be done at a convenient time before sunset. Lastly, the demand must be made at the most notorious place on the land the front door of the dwelling-house unless some other place has been fixed by agreement. A lessee may avoid forfeiture by tendering the rent due at any time before midnight sufficient to count the money; and, if no place is fixed for making the payment the tenant may save a forfeiture by going on the prem- ises at the proper time and actually tendering it there. In order to save a forfeiture for non-payment of rent, if the lessor brings his action of ejectment and the lessee brings the money due the lessor into court, it will stay the proceedings, provided the failure to pay was by accident and not wilfully done. An illustration may be given to show the extent to which courts will aid parties who are not in fault in this regard. A lease provided for the payment of rent in Russia Sables Iron, for which the lessor had accepted money, for forty years, without objection. At the end of that time the lessor was overtaken by some freak and demanded the iron, but there was none in the market and impor- tations had long before ceased. The court, on the application of the lessee, gave him time to send to Russia for the iron before enforcing the forfeiture. 40. To yield up a tenant's estate for life or years to the lessor is called a surrender, and has the effect 216 BUSINESS MAN'S LEGAL ADVISER of extinguishing all claim for rent that is not due. To do this requires a deed or note in writing in order to satisfy the statute of frauds. Nor would this effect be changed by an oral agreement at the time of making the lease that the lessee might surrender it at any time he chose. Of course, a lease that does not exceed the term for which a parol lease can be made may be surrendered orally. Again, the lessor and lessee cannot, by the formal surrender of a lease, affect the rights of a third party; for example, those of the lessee's subtenants. 41. The effect of taking a new lease before the expiration of the old one is to work a surrender of the first, unless both leases can stand. In one case, in which the first lease was to two lessees, and the lease back again was from one lessee only, this did not operate as a surrender. Again, when a lease is by one lessor to several lessees, one of these cannot affect the rights of his co-lessees by releasing or convey- ing to his lessor. An oral lease may be substituted for an existing lease, even though this be under seal, if the substituted lease is binding by the statute of frauds, and is per- fected by the lessee's possession. In such a case the new lease would work a surrender of the old one. Sometimes a lease comes to an end by a merger. This happens when a term for years and the following estate, or immediate reversion, meet in the same per- son in his own right, endowing him with full power of sale or alienation. This not infrequently happens, and by such a union of both estates, the lease comes to an MODES OF LIMITED OWNERSHIP 217 end. But estates that are held in different ways will not merge. 42. A lessee, in an action brought to recover pos- session of the premises, is not entitled to question his lessor's title, nor the rent he has promised to pay in an action for the use and occupation of land. The policy of the law will not permit a tenant to be guilty of denying the title of the premises whereon he has been living. Thus, a lessee whose duty was to pay the taxes neglected to pay them. The land was sold at public sale and purchased by the lessee, but he was not permitted to set up his title against his landlord. The rule would have been otherwise had he not been required to pay the taxes. Furthermore, he has no right to complain of a want of title in his lessor so long as he is in undisturbed possession. The importance of this rule is evident, for a tenant is thereby prevented from acquiring a title by adverse possession against his landlord. The rule is so broad as to prevent a tenant, who has enclosed adjacent land long enough to acquire a title, from reaping the benefit of his action. His landlord, and not himself, profits by the acquisition. In such cases, so the courts de- clare, the tenant is acting for the benefit of his landlord a kind of robber philanthropist, stealing for his landlord's benefit instead of his own. In some cases a tenant has a right to contest his lessor's title; for example, after the expiration of the lessor's title during the tenancy. For, in thus attack- ing the former landlord's title, the tenant is not dis- puting the validity of the title under which he entered. 2i8 BUSINESS MAN'S LEGAL ADVISER In such a case he may also set up an independent title acquired by himself. 43. Sometimes land is let on shares; when this is done different relations may be established. The land-owner and tenant may create the relationship of landlord and tenant, or the very dissimilar rela- tionship of partnership. If the intention of the con- tract is that the farmer shall do the work as the servant of the land-owner, receiving for his services a fixed proportion of the crops, the contract is one of hiring and not a lease. Again, if the farmer is to be his own master, going on the land to plant, tend, and harvest the crops, which are to be divided, then the two parties are not tenants hi common, except of the crops. But if the farmer, instead of acting as a licensee, is given possession of the land, though the rent is to be paid in produce, he is a tenant with all the incidents pertaining to tenancy. Which of these relations exists when land is let on shares must depend on the construction of the contract. Sometimes these contracts are difficult to understand. In one of the cases the tenant was to cultivate and bag the hop crop as rent for the farm. The court held that the crop was the sole property of the land-owner. In another case an agreement between the two to share profits was held to be a partnership, because a division of profits necessarily implied this relation. There is a large number of cases, in which an entirely different rule has been declared, a division of the profits forming, in the mind of the court, no proper test of a partnership. MODES OF LIMITED OWNERSHIP 219 The natural increase of stock leased with a farm accrues to the tenant. To recover for the death of cattle in the tenant's possession, the landlord must prove negligence. If a lessee for years of a farm and stock sells part of it contrary to the lease the pur- chaser, after the termination of the lease by agreement of the parties, although within the term named, is liable to the lessor for the stock so sold. 44. From a tenancy thus created we will next con- sider a tenancy or estate created at will. This exists when a tenant has entered on land for the purpose of holding the same during the joint wills of both parties. The relation is not formed until the lessee has taken actual possession, and it may cease at the will of either party. To create this relation no rent need be fixed, no time set for the length of the occupation. "Such a tenancy cannot arise without an actual contract." When it does the tenant is entitled to a reasonable notice of his landlord's wish to end the estate before the latter can begin an action to regain possession. Thus, a tenancy was to exist for five years unless the lessor wished to build on the land; if he did, the lessee was to quit. This agreement, by providing for a notice concerning the lessor's intention to build, created a tenancy at will. If, without giving the notice, the lessor should enter and attempt to build, he would be a trespasser. 45. A tenancy created by words clearly showing an intention to endure only by the pleasure of both parties is an estate at will, though the rent may be payable by the year or lesser periods. If the tenant is to pay the 220 BUSINESS MAN'S LEGAL ADVISER rent at certain intervals, and the lessor terminates the tenancy between them, he cannot require any rent to be paid from the time of making the last payment. And the same principle is applied when the lease is by parol and the tenancy is ended by the lessor between the rent days. Thus, a parol lease is for a year, and the rent is payable quarterly. In the interval between two payments the lessor sells the premises and the purchaser notifies the tenant to quit, which he does before another quarterly rent falls due. The tenant is not liable for the rent after the last payment. 46. A tenancy at will may be implied by the law. Thus, a householder permitted another to occupy his house free of rent. This was a tenancy at will. In another case the owner of a chapel and dwelling-house placed a minister hi them as a minister of a congrega- tion. Another instance may be given that of a person who is let into possession of land under a con- tract to purchase or lease it. Generally, a person who, by the owner's consent takes possession of land without any facts or reason showing an intention to create an estate from year to year, is a tenant at will. 47. A tenant at will cannot acquire or create an estate that will avail against the owner of the land. If the tenant leases it this will be good between him and his lessee so long as the tenant enjoys the premises. A tenant at will who assigns his interest ends the tenancy, nor can the assignee claim the rights of the tenant at will against the original lessor. 48. Rent is not always incident to a tenancy at will. MODES OF LIMITED OWNERSHIP 221 It often depends on circumstances whether such a tenant is chargeable for the use and occupation of the land he is occupying. For example, should a purchaser enter by virtue of a contract of purchase and sale, which fails by the vendor's fault, the vendee would not be liable for the use and occupa- tion of the land save by express agreement. To make the vendee liable it must be shown that his oc- cupation was by the purchaser's permission. If he is there without this permission he is liable only as a trespasser, if at all. Again, a purchaser who is in possession under a contract to purchase, and refuses to perform his part, is liable for using and occupying the premises, but he is not a tres- passer. By his refusal to perform his part he annuls the conditional license whereby he entered, and acts without it. 49. At the expiration of the relation the tenant at will is entitled to the crops, but, if he abandons the land before they are ripe, he loses them, unless his abandonment was forced by his landlord. Nor can the latter, by conveying the land with the growing crops, impair the tenant's right to them. 50. Any act or declaration indicating an intention to terminate the tenancy is sufficient for that purpose. On the part of the lessor a notice to quit, the demand of possession, an entry on the land whether the tenant is present or not, the carrying off of stone or trees against the tenant's will, the sale or lease of the land all these acts clearly indicate on the part of the lessor, an intention to end the tenancy. 222 BUSINESS MAN'S LEGAL ADVISER The death of either party also ends the estate; by the lessor's death, the lessee becomes a tenant at sufferance. Should the lessee die, his personal representative would have no right to the possession of the land after his death. If there be two lessors or two lessees the death of one does not terminate the tenancy. In like manner a judgment for possession against the lessor, or an assignment of the lessor's estate under a process of insolvency, would end the lease. On the part of the tenant an assignment of his interest would put an end to the tenancy. It has been said that this is not so unless the landlord has notice of it; and, until received, he may treat the lessee as his tenant and require him to pay the rent. Though a tenancy at will may be ended in the manner above described, the law will not treat the lessee as a trespasser, should he enter within a reason- able time after the termination of his lease for the purpose of removing his crops or other property. This period is a fact which must be ascertained in every case by itself. A tenancy from year to year may arise either ex- pressly as when land is let from year to year, or by a general oral lease, without any fixed period and by the payment of annual rent; or such a tenancy may be implied by occupying property under a rent payable yearly, half yearly or quarterly, or when a tenant holds over after his term has expired without having entered into any new contract and payment. Such a tenancy, however, will not be created contrary to the intent of both parties, and payment of rent is MODES OF LIMITED OWNERSHIP 223 simply evidence of intent. A lease for no definite term, with an annual rent, which may be payable quarterly or monthly is a lease from year to year. Also when one who enters into an agreement for a year is let into possession, and pays the stipulated rent, a tenancy from year to year is created. Gener- ally an oral lease of lands for years is construed as creating only a tenancy at will. This, however,may be changed into a tenancy from year to year by payment and acceptance of the rent annually and by the cir- cumstances indicating that such a lease was the in- tention of the parties. A tenant for life or for years may lawfully cut trees needful for firewood and repairs to houses and fences even when he has agreed to make repairs at his own charge. But he cannot cut wood for sale. 52. A tenant from month to month does not become a tenant from year to year by continuing in possession for more than one year. Such a tenancy may be effected by special agreement, or it may be implied from the mode of making payments. Thus a lease for an indefinite term with the payment of monthly rent, creates a tenancy from month to month. A weekly tenancy is a re-letting of the premises at the begin- ning of each week. 53. For a long period the courts have sought to protect the interests of lessees against; the sudden ending of their tenancy. To protect them more perfectly the courts finally required a notice to quit from landlords to their tenants before they could be actually expelled. This is obviously a just re- 224 BUSINESS MAN'S LEGAL ADVISER quirement, and the rule thus established by the com- mon law has been greatly extended by statute, both in England, where the rule was first adopted, and also by all the states of the Union. This notice is now largely regulated by statute, and there is not much need of saying more, except to give a brief description of the kind of notices re- quired; 54. The notice to quit must be distinguished from the notice required to be given before undertaking summary proceedings to recover possession of land. The object in giving the notice is to enable the tenants to remove their crops and other property, and thus be less at the mercy of their landlord than they would be, should he come immediately into possession by his own sole act, and claim and retain everything. At first the courts simply declared that the notice should be a reasonable one, but they have since fixed more definite times and rules to govern the parties interested in the possession of real property. 55. Of course, it may be fixed by agreement, and this will prevail over any statute. Generally, unless a time is thus fixed, it will be equal to the interval be- tween the times of paying rent, as by the quarter, month, or week, or other period. ilf, by agreement, or other construction of law, a tenancy is at will, though it may have been otherwise in the beginning, no notice to quit is necessary to end the relation unless required by statute. Again, if the tenant-relation, that once existed, has been de- stroyed, no notice is required before the landlord can MODES OF LIMITED OWNERSHIP 225 avail himself of his legal right to recover possession of the land. Thus, if a possessor of land repudiates this relation, or sets up a claim that is hostile to his landlord's, no demand for possession or notice to leave need be given. Again notice to a tenant who is in possession under a condition which is fulfilled, is not required. For example, a building was let to a person for a school, so long as he kept a good one. Failing to fulfil this requirement, the owner had a right to take possession without giving him any notice. 56. Finally, an illustration of terminating a tenancy at will without giving notice is that of selling the land itself. Such an act is regarded as equivalent to a notice, and the tenant must act accordingly. 6. TENANCY FROM YEAR TO YEAR 1. Who is such a tenant. 2. Tenancy founded on contract. 3. Notice to quit. 4. Tenancy cannot be changed against lessee's will. 5. Nature of tenancy. 6. Repairs. 7. Notice to quit. 8. Service of notice. 9. Liability for rent. 10. Waste. 11. Revival of tenancy. 12. How lease is affected by statute of frauds. i. A class of estates has been established with this 226 BUSINESS MAN'S LEGAL ADVISER name possessing essentially a modern character. They are founded on oral or parol leases, and usually require six months' notice for their termination. 1 A tenant who is permitted to remain without such a notice into a second year is regarded as having a lease for another year, and so on. Consequently such a lease continues until either party gives the other the notice required for its termination. 2. To establish the tenancy it must appear that there was an entry or letting for an indefinite time, or an agreement to pay rent measured by the year or frac- tional parts, or an actual payment if none was origin- ally fixed. Though the hiring for a term within the statute of frauds is a tenancy at will, it is converted into a tenancy from year to year by slight evidence of this intention of the parties. If one should merely authorise another to go on land and cut wood at an agreed price, a tenancy from year to year would not be established, and, consequently, the contractor would not be entitled to a notice to quit. 3. When the lease is for one year or other certain term no notice to quit is needful, although, if the tenant holds over, he may be held at the election of the lessor as a tenant for rent at the rate originally fixed. 4. Merely to suffer a tenant to hold over, without 1 "The length of time required to be observed in giving notice is regu- lated by statute, and generally varies with the length of the periods between the payments of rent. If it be a yearjy rental, the English rule, which is fol- lowed in some of the states, requires' six months' notice; while, in some other states, a shorter time, usually three months, is required. If the rental be for a period less than one year, as by the quarter, the month, etc., then, as a gen- eral rule, the notice must be for as long a time as the periods of payment. If the statute requires notice, but the length of the notice is not stated, it is held that a reasonable notice must be given. And the parties may always, by special agreement, control the length and other provisions of the notice." Tiedeman, Real Property, 218, p. 186. MODES OF LIMITED OWNERSHIP 227 any act or assent on the part of the landlord, will not change the relation into a tenancy against the lessor's will, or prevent him from maintaining an action of trespass, or ejectment of the tenant as a wrong-doer. 1 5. A tenancy from year to year has many of the qualities and incidents of a term for years. The lease may be assigned; the lessor may be liable to the tenant in the same manner as if the longer relationship of a tenancy for years existed between them. Both parties have the same rights with respect to strangers as in the longer relationship. The tenant is liable for rent should the premises burn down. 6. Tenants from year to year are not bound to make substantial repairs unless they have agreed to make them. Independently of contract, it has been said that a tenant from year to year must keep the premises wind- and water-tight and make fair tenantable repairs, put up fences or repair windows and doors that have become broken during his occupancy. But he is not liable for the wear and tear of the premises, nor answerable if they are burned down, nor bound to repair them if they become ruinous by accident, nor to make general repairs. 7. Both parties are equally bound to give notice in order to end the tenancy. Of the form of notice it may be said that, if the lease has been made by three notice by two will not suffice: all must join. The notice may be oral, unless the statute, or an agreement, requires the notice to be in writing. It must clearly indicate the time for the tenancy to expire the end i 1 Washburn, f 801, p. 499. 228 BUSINESS MAN'S LEGAL ADVISER of the year, quarter, month, and the like. A tenant who comes into a house in the middle of a quarter, and pays rent on the regular quarter days, begins his tenancy at the first regular quarter day, and a notice to quit must conform to that time. Should entry into different parts of the premises be made on different days the notice is considered as beginning on the date when entry was made into the principal part of the estate. What this part may be is a question of fact for the jury to decide. 8. In interpreting a notice the courts seek to construe it broadly, in order to make it effective; and unless the party notified has been misled by the time indicated, the notice will be sufficient. If the tenant states to the lessor's agent a day as the end of the lease, to which the notice conforms, the tenant is bound even though this proves to be a mistake. The notice must be served on the landlord's own tenant, and not on a subtenant of his lessee. In one case the premises consisted of a shop, and the lessee took a partner, making, however, no new contract with the lessor. The notice was served on the partner during the lessee's absence, and this was sufficient to determine the tenancy. The notice may be made personally or left at the dwelling-house of the tenant with a servant, but not simply on the premises. If left in the latter manner the service will not suffice unless it appears that the tenant actually received it. By the common law rule, when the tenancy is yearly, notice must be given six months before the expiration MODES OF LIMITED OWNERSHIP 229 of the year. When the period is for a shorter time it is technically a tenancy from year to year, though the notice need not be given except for the quarter, month, or week, during the existence of the tenancy. 9. The tenant's liability for rent continues until the end of the lease, whether he actually occupy the premises>.or not. 10. By committing voluntary waste he forfeits all right to the notice to quit, for, by so doing, he termin- ates the estate. 11. A tenancy may be revived, after giving notice, by accepting rent for a longer period. If rent was due at the time of the serving of the notice, and is after- ward received, this does not revive the lease, for it is simply the payment of a just obligation which has already accrued. 12. By the statute of frauds an oral or parol lease can have a legal effect only for a short period. In many states the lease is invalid if exceeding three years from the time of making it. In one state, Florida, an oral lease may be made for two years. In much the larger number a lease for more than a single year is contrary to or "within" the statute of frauds, as the books say, and invalid. 7. TENANCY AT SUFFERANCE 1. Who is a tenant by sufferance. 2. How tenancy arises. 3. Cannot deny his landlord's title. 4. Cannot acquire title against landlord 230 BUSINESS MAN'S LEGAL ADVISER 1. A tenant who has come rightfully into possession of lands by the owner's permission, and continues to occupy them beyond the time for which this was given, is a tenant at sufferance. In the language of the law, he is one who conies in by right and holds over without right. Yet he is not a trespasser. 2. Such a tenancy may arise in various ways; for" example, after a tenancy for years has expired, or a tenancy has come to an end by the death of the lessor, or by his selling his land. Another example may be given because it is so common; a mortgagor remains in possession after his land has been sold; in short, anyone who continues in possession without agreement after the end of a particular estate by which he first came into possession is a tenant at sufferance. His original possession in all cases, therefore, was by virtue of an agreement, for when one remains under any other condition he is not a tenant at all, recognised by the law, but simply an intruder or trespasser who can be treated accordingly. Indeed, in some states, the law declares that a tenant who seeks to remain in possession after the expiration of his lease may be treated by the lessor as a tenant from year to year, or as a trespasser, just as he pleases. The tenant, if the land-owner chooses to dignify him by that name, can exercise no election in the matter. In other states a different rule prevails, and he is regarded as a tenant at sufferance. 3. Of course, he cannot deny his landlord's title. The moment the parties agree to any kind of holding, tenancy at will or otherwise, the former relation MODES OF LIMITED OWNERSHIP 231 ceases. Thus, a landlord, by accepting rent from him, would terminate the tenancy by sufferance. 4. A tenant at sufferance cannot avail himself of his position to acquire a right to the premises by adverse use or possession. He is not entitled to notice to quit before the summary process for his removal, unless the statute required one to be given. In this country, however, the statutes have been everywhere enacted for giving notice in nearly all cases of tenancy. And this is a safe practice to follow in dealing with such persons. 8. BY JOINT TENANTS AND TENANTS IN COMMON 1. What is a joint tenancy. 2. How created. 3. Abolished in many states. 4. What is a tenancy in common. 5. A tenant cannot convey a particular part of the estate. 6. Nor acquire a title against the others. 7. Nor maintain an action of trespass against another tenant. 8. Can recover his share of the profits. 9. How the estate may be divided. i. A joint tenancy is defined to be the holding of land by several persons by purchase. Though the estate may be a single one outwardly, yet, between them- selves each is entitled to his share of the rents and profits, so long as he lives, and, on the death 232 BUSINESS MAN'S LEGAL ADVISER of one of them the survivor or survivors take the en- tire estate. 2. A joint tenancy can be created only by purchase or act of the parties, and not by descent or act of the law. It must be created by one and the same act, deed, or instrument, and have a fourfold unity. The interest must be acquired by all, by the same act, begun at the same time, and held by the same title and possession. The most objectionable characteristic of a joint tenancy is the right of survivorship, whereby the estate finally comes into the possession of a single individual. Two corporations, therefore, cannot be joint tenants. 3. This kind of ownership of land is contrary to the policy of American law, and, in many of the states, has been abolished by statute. A joint tenant cannot acquire, by adverse title, the interest of the others; nor can he sue or be sued alone. If anyone wastes the joint estate the others have an action against him. Either tenant may convey his share to a co-tenant, or even to another who thereby becomes a joint tenant. Of course, a joint tenant cannot devise his estate. Lastly, a joint tenancy may be dis- solved by voluntary partition, or by a statutory one whenever the tenants themselves are not willing to divide. 4. A tenancy in common exists when two or more persons hold land by several and distinct titles. The unity between them is that of possession. Thus, one may be an absolute owner, another for life; one may have acquired his title by purchase, another by descent; MODES OF LIMITED OWNERSHIP 233 one may hold a fifth, another a twentieth. Neverthe- less, they are tenants in common. Lastly, an estate conveyed to several in unequal shares, in consequence of having contributed unequally toward the purchase, belongs to them as tenants in common and not as joint tenants. 5. Although each tenant can alienate his share, he cannot convey any particular part of the estate. Nor can one of several joint owners dedicate any portion to the public. In like manner a deed of one co- tenant's share, reserving his share of the mines in the same, would be void. 1 He cannot create a right of way over the common estate. 6. As their possession is in common, no one of them can acquire a title by adverse use against the others. The possession of one tenant in common is deemed to be the possession of all. It is held to be a fraud for one tenant to suffer the common property to be sold for taxes and to purchase it for himself. Should he do so the tax-title would inure to the benefit of all. But, should the interests of the co-tenants be separately assessed, there is no rule to prevent one from buying at public sale the title and interest of another. 7. A tenant in common cannot maintain an action of trespass against another co-tenant. This can never be done unless the party charged has done something inconsistent with the rights of the other co-tenants. The act must be an eviction or destruction of the prop- erty, in order to give the tenant the right to proceed against the others. But a tenant may have an action > Adam v. Briggs Iron Co., 7 Cush., 361. 234 BUSINESS MAN'S LEGAL ADVISER of waste against his co-tenant either by statute or at common law. If one tenant should cut timber and sell it, the co-tenants could recover their respective shares of the proceeds. 8. A tenant may recover from his co-tenant his share of the rents and profits of the common estate. Of , course there can be no recovery unless the co-tenant has taken more than his proper share. Though a tenant cannot be made to pay rent to his co-tenant for permissive sole occupation of the land, he may be held accountable for what he receives as a rental. If he ousts his co-tenant and occupies ad- versely to him, he is liable for the rent. In Vermont one of several co-tenants converted the common land into a race-course and cut down trees growing thereon, but was obliged to account both for the timber and for the profits of the race-course. Independently of statute, a tenant in common can- not compel his co-tenant to contribute to the cost of improvements. But the expense to which a tenant is subjected for the preservation of the common property may be ratably apportioned among them all; for ex- ample, payments for necessary repairs, a mortgage, taxes, assessments, and the like. 9. Finally, the statutes in all of the states provide for the partition of tenancies in common. THE COUNTRY LIFE PRESS GARDEN CITY, N. Y. UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below Form L-0 20m-l,'42(S51B) LAW TTRT?Al>v UNIVERSITY OP CAUPeRNU A 000 696 ? K50 U5B6 1913 T.I