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. 
 
 (</) Trustees who have a legal ownership of lands 
 may lease them to any extent, as this is a right incident 
 to their ownership of them. Corporations also can 
 lease their lands either with or without a seal. 
 
 (e) A single member of a partnership cannot make a 
 valid lease of partnership land. On one occasion a 
 partner leased his estate to the partnership, which was
 
 igo BUSINESS MAN'S LEGAL ADVISER 
 
 afterward dissolved by the death of a member. This 
 event terminated the lease. A different rule would 
 have applied had the lease been from a third person. 
 
 g. Passing from persons to property, we may inquire 
 what can be leased. Besides land, various interests 
 therein may be leased; for example, the right of wharf- 
 age, the right of flowing another's land with water, 
 rights of way, and the like. But a widow cannot lease 
 her right of dower before it has been set out to her. 
 
 While a single room or an entire floor may be let 
 for lodgings and in a way to become a separate tene- 
 ment of the lessee, an ordinary agreement for board 
 and lodging in a house by which the keeper retains 
 the legal possession and care of the whole house does 
 not create the relationship of landlord and tenant. 1 
 
 10. Of course, a lease cannot be effective unless it 
 has been accepted, which is often presumed. This 
 question can hardly arise about a lease that is to go 
 into immediate execution, but it may in regard to a 
 renewal. Thus, a tenant had a lease for three years, 
 with a right to hold for two years on the payment of 
 a larger rent. Having paid the larger rent for one or 
 two quarters of the second period, it was held that 
 both parties were bound for the extended period. 
 
 A lease takes effect only from its delivery and not 
 from its date, and there can be no delivery without 
 an express or implied acceptance. While delivery 
 implies a manual transfer of possession from one per- 
 son to another, yet if the lessee acts by formal consent, 
 or unequivocal acts as by entering into possession, thii 
 1 34 Cyc., 879.
 
 MODES OF LIMITED OWNERSHIP 191 
 
 is a sufficient delivery. The delivery is complete 
 when the lessor has gone beyond his ability to rescind 
 or to recall the agreement. 1 
 
 11. A lease, like any other conveyance of real estate, 
 must be recorded in order to bind subsequent pur- 
 chasers or creditors. Not all leases though, only those 
 that are to run for a period usually of five years or 
 longer. This period, says Washburn, 1 in Massachu- 
 setts is seven years, in Kentucky five, New Hampshire 
 seven, Delaware twenty-five years, if for a fair rent 
 accompanied by possession; in Maine seven years, 
 in Michigan the same, in Ohio and New York three, 
 in Rhode Island one, and in North Carolina all leases 
 required to be in writing must be recorded. 
 
 12. A lease made for an unlawful purpose is void. 
 For example, the lease of premises for the manufacture 
 and sale of spirituous liquors, in a state where the busi- 
 ness is condemned by law, would be invalid. But the 
 mere knowledge on the part of the lessor that the 
 premises are intended to be used for an illegal purpose, 
 unless he participates in the design, will not render 
 the lease invalid.' 
 
 Occupation of the premises by the lessee and pay- 
 ment of rent in accordance with the terms of the lease 
 is usually held to be a ratification by him of an invalid 
 lease. Likewise acquiescence in the occupancy of the 
 premises by the lessee and acceptance of rent from him 
 will, as a rule, amount to a ratification of a void lease 
 
 J4 Cyc., 905. 
 
 * i Washburn, 630, p. 374. In Louisiana all leases must be recorded. 
 1 Nor can the lessor plead the immorality of her calling as a defence against 
 the payment of rent. Lytnan v. Townsend, 24 La. Ann., 265.
 
 i 9 2 BUSINESS MAN'S LEGAL ADVISER 
 
 but some new promise or condition is necessary. Nor 
 will mere acceptance of rent, without any other act 
 of confirmation, always operate as a ratification of a 
 defective or void lease on the part of the lessor. 
 
 13. (a) A lease usually contains both express and 
 implied covenants. By an implied covenant is meant 
 one created by law without any special words or lan- 
 guage. The first that may be mentioned is a covenant 
 or agreement for quiet enjoyment. The law assumes 
 that the lessor, at the time of leasing his premises, is 
 the legal owner and possessor; if the fact be otherwise 
 he must make good to the tenant all damages accruing 
 to him from the loss of possession. 
 
 (b) There is also an implied covenant against waste. 
 The lessee assumes an implied obligation to use the 
 premises in a proper manner and to keep the build- 
 ings in repair, and, failing so to do, he is liable, in an 
 action called waste, for the damages sustained by the 
 lessor. If there be no express agreement concerning 
 repairs, the lessor is not bound to make any; but, if he 
 undertakes or agrees to make them, he is bound by an 
 implied covenant to do this in a workmanlike manner, 
 without injuring the lessee. The courts tend strongly 
 to minimise all implied covenants or agreements, thus 
 rendering the written lease the entire agreement be- 
 tween the parties. Such a change in the legal attitude 
 toward the parties is more in harmony with the spirit 
 of the age and with the principles of justice. 
 
 (c) Another distinction concerning these covenants 
 must be noted. Some of the covenants are personal 
 and bind only those who made them; others run with
 
 MODES OF LIMITED OWNERSHIP 19$ 
 
 the land and bind other persons beside their makers. 
 Implied covenants are always personal; express 
 covenants may rim with the land, or may not. 
 
 (d) In general, a covenant that is beneficial only to 
 the owner of the land, and that relates to its preserva- 
 tion or improvement, runs with the land. The most- 
 important covenants possessing this peculiar trans- 
 missible character are those for quiet enjoyment, to 
 pay rent, insure, repair, deliver the estate in good 
 condition, to reside on the premises, and to pay the 
 taxes. Other covenants of this nature are those by a 
 mill-owner not to let any other place or site for a mill 
 of the same kind; or by a lessee not to sell any wood or 
 timber, or to cultivate the land in a particular manner,, 
 or to raise only certain crops, or only on alternate years. 
 These are good illustrations of covenants that run 
 with the land, binding both parties to the lease for 
 their performance. 
 
 (e) Covenants may run with a part of the land, and 
 not with the entire portion. 
 
 (/) Who are or who may be affected by the covenants 
 that run with the land? An assignee or a lessee would 
 be bound, but not a sublessee, and as he is not, of course 
 his assignee would not be. On the other hand, the 
 assignee of the lessor is bound. 
 
 An agreement to keep a house in repair runs with the 
 land and binds the assignee, though he is not named. 
 But a covenant to build a new house will not bind an 
 assignee unless he is named, though, as another has- 
 remarked, "The good sense of this is not very easily 
 discoverable." Yet, as we noted when setting out on
 
 i 9 4 BUSINESS MAN'S LEGAL ADVISER 
 
 our legal travels, there are many things in the law which 
 do not square with sense; hence the need of legal knowl- 
 edge to escape the pitfalls. 
 
 14. Often blank forms are used in making leases, 
 and sometimes the printed and written agreements or 
 clauses are inconsistent with each other. When they 
 are, the written clauses are regarded as containing 
 the true statements and intentions of the parties, and 
 the printed ones, so far as they are inconsistent, must 
 give way to the other. 
 
 15. A lessee is bound by an implied covenant to use 
 the premises in a proper and husbandlike manner. 
 What such husbandry may be depends largely on the 
 place where the land is situated. Different rules, ob- 
 viously, exist in different places. The tenant is bound 
 to keep the soil in a proper state of cultivation, to 
 preserve the timber, to support and repair the build- 
 ings; neglect of his duty in these matters will render 
 him liable in an action for waste. Of course, the im- 
 plied covenant or agreement may be modified or set 
 aside by an express agreement. In one case a lease of 
 a farm was dated July i8th, before the grass growing 
 thereon was cut. The lease was for five years, and in 
 the fifth year the tenant cut the grass on the tenth 
 of July, thus taking six crops of grass from the farm 
 during his term of five years. This was held to be a 
 violation of the rules of good husbandry. In Illinois 
 it is the duty of the tenant to pay all the taxes during 
 his tenancy; failing to do this followed by its public 
 sale and becoming the purchaser, he cannot hold the 
 land against the owner of the inheritance. Where a
 
 MODES OF LIMITED OWNERSHIP 195 
 
 lessee guarantees to pay the taxes assessed on the 
 leased premises and fails to do so, the lessor can recover 
 the amount assessed, although he himself may not have 
 paid them. Furthermore, were the premises destroyed 
 after the day of levying the tax and before the time of 
 payment had expired, the entire tax would be re- 
 coverable under the lessee's covenant. 
 
 In a lease of real property containing machinery 
 and other fixtures, questions often arise concerning 
 its use, and the intention of the parties to the lease. 
 A factory with its machinery which is leased carries 
 the right to the use of the water-power for the opera- 
 tion of the mill. But the lease of a store or warehouse 
 does not imply that the building is safe or well built, 
 or that it is fit for any particular use. And the lease 
 of a salt-well would be no assurance or measure of 
 its capacity. 
 
 When the lease is silent concerning the use of the 
 premises by the lessee, he has the right to use them as 
 he pleases, not materially different from that in which 
 they are usually employed, or to which they are adapt- 
 ed. But the lessee must use the property in a proper 
 and tenantlike manner, without exposing the buildings 
 to ruin or committing any waste. A tenant of farm- 
 ing land under a lease which does not restrict the use 
 he is to make of the land has a right to pasture cattle 
 thereon, and to make any other reasonable and usual 
 use of the land he may see fit. By such a lease the 
 law implies that it shall be used for that purpose, that 
 no waste shall be committed and that it shall be 
 farmed in a husbandlike manner.
 
 196 BUSINESS MAN'S LEGAL ADVISER 
 
 Manure in the ordinary course of husbandry is 
 the property of the lessor and belongs to the farm as an 
 incident necessary for its improvement and the tenant 
 has no right to sell it or apply it to any other use. 
 Manure made in livery stables, or in buildings un- 
 connected with agricultural property belongs to the 
 tenant. 1 
 
 1 6. In many states, unless there is some restriction 
 in the lease, a tenant may assign the lease or sublet 
 the premises. Furthermore, an assignment of a lease 
 that must be in writing to satisfy the statute of frauds 
 must also be written. 
 
 17. A lease may be so drawn that neither party can 
 assign nor transfer it. To be non-assignable the terms 
 must be very explicit; otherwise, on the death of the 
 lessee, his executors or administrators can assign the 
 term. In like manner a lease may be assigned by the 
 process of insolvency. By such an assignment the 
 estate passes, discharged of all covenants or agreements 
 not to assign, if the proceedings are bona fide. Again, 
 the retirement of a member of a partnership, and the 
 taking of his place by another, are not a breach of the 
 covenants or agreements not to assign the lease. 
 
 1 8. A transfer by a lessee of the whole or of a part 
 of the estate, for a part of the time, is a sublease and 
 not an assignment. In such a case the original lessor 
 has no right of action against the sublessee, for he is 
 liable only to his lessor. But a transfer of the whole 
 or a part of the leased premises by the original lessee 
 for the residue of the term is an assignment. In such 
 
 1 24 Cyc.. 1066.
 
 MODES OF LIMITED OWNERSHIP 197 
 
 a case the tenant having underlet a part of the premises 
 for a part of the time, and then assigned to a third 
 person all his interest in the original lease, his 
 assignee could recover the rent from the one to 
 whom his assignor had rented a portion of the 
 premises. 
 
 Whether a lessee, in parting with his interest in his 
 lease, assigns or underlets, depends on the question 
 whether he has parted with his entire interest. If he 
 has then it is an assignment. If the period is to expire 
 before the expiration of the original lease, then it is a 
 subletting. The retaining of the smallest interest has 
 the effect of creating simply an underlease. In the 
 case of a lessee who leased to another the premises for 
 the residue of his term, reserving the right to recover 
 possession on the last day, there was an underletting 
 and not an assignment. In another case, that of a 
 lessee who transferred his entire interest, reserving a 
 rent larger than that specified in the original lease, 
 with the right of entry in case of non-payment, there 
 was an underlease and not an assignment. In short, 
 a lessee who reserves to himself the right of gentry for 
 any period, however short, or under any condition 
 in the event of the non-payment of the lease, simply 
 underleases his term. 
 
 19. A tenant at will 1 has no estate he can assign to 
 another whereby a relationship can be established 
 between the original lessor and such a tenant. 
 
 20. The respective rights between the original lessor 
 and the tenant of a lessee or sublessee are well settled. 
 
 1 One whose tenancy ceases at the will or order of the lessor or landlord.
 
 ig8 BUSINESS MAN'S LEGAL ADVISER 
 
 The lessor cannot sue the undertenant nor recover rent 
 of him in any form of action. 
 
 21. Should a lessor sue a sublessee in possession of 
 leased lands to recover rent, the latter will be presumed 
 to be the assignee of the lessee until the contrary ap- 
 pears. A surrender by the lessee to the lessor which is 
 accepted by him during the occupancy of another is 
 conclusive evidence that the lessee, and not the occu- 
 pant, holds the premises under the lessor. 
 
 22. As the lessee may assign or underlet his interest, 
 unless he is forbidden to do so by agreement, in like 
 manner the lessor can convey or assign his reversion in 
 the land after the expiration of the tenancy, or interest, 
 and thereby bring in a new party. In order to give 
 effect to this transfer by the lessor, it is not necessary 
 that the tenant should attorn to or acknowledge such 
 grantee or assignee to render the transfer valid. 
 
 As a general rule, the transfer of a reversion carries 
 with it the rent already due and accruing therefor. 
 It is of little consequence how one becomes a rever- 
 sioner as affecting his right to recover rent of the 
 tenant or his assignee whenever it falls due. 
 
 If only a part of the reversion is conveyed the grantee 
 or assignee may recover his share of the rent, pro rata, 
 which is determined by the relative values of the re- 
 spective portions of the reversion. This principle 
 concerning the apportionment of rent between several 
 assignees applies to a reversion that has descended to 
 several heirs. When this event happens one of them can 
 sue for his part accruing after the death of his ancestor 
 without considering the rights or interests of the others.
 
 MODES OF LIMITED OWNERSHIP 199 
 
 23. The rent and reversion may be separated by the 
 lessor or owner. He may convey his entire estate, yet 
 reserve the rent to himself. Or, again, he may assign 
 the rent without granting the reversion, and the as- 
 signee may recover the subsequent accruing rent in 
 his own name hi an action of debt. The rent, however, 
 cannot be apportioned by the landlord to different 
 persons without the tenant's consent. Again, a lessor 
 may give or devise a part of a rent which will be good 
 without the tenant's consent, and the devise may be 
 severed from the reversion. 
 
 When by an assignment of a reversion the rent 
 passes, or vice versa, the assignee may sue in his own 
 name for any rent accruing after making the assign- 
 ment. 
 
 The assignee of a reversion of the land, or of the rent, 
 should give notice of such action to the lessee or the 
 tenant, otherwise he is protected in paying the rent 
 to the lessor on his demand therefor. But no act 
 done by the assignor, after the notice of such an assign- 
 ment has been given to the other party, will be of 
 any avail to him. 
 
 The assignee of a lessee who holds under a recorded 
 lease containing a mortgage on the premises is bound 
 to take notice of it. 
 
 24. There is a distinction between a special assign- 
 ment of a lease by a lessee, and an assignment by legal 
 process or by operation of law. In the former case 
 the parties to the assignment are supposed to under- 
 stand the terms and to assent to them. But no such 
 result follows the assignment of a lease by the bank-
 
 200 BUSINESS MAN'S LEGAL ADVISER 
 
 ruptcy of the lessee, for the reason that the parties 
 into whose hands it may come have not previously 
 given their assent. Hence, in the latter class of cases, 
 the assignee has a reasonable time to ascertain whether 
 the lease can be made available for the benefit of 
 creditors before he is required to make his election 
 whether to accept the assignment or not. If the as- 
 signee accepts he can never deny the validity of the 
 assignment in an action by the lessor for rent, nor 
 can he escape liability for abandoning the premises 
 before the lease has expired. An assignment of the 
 lease does not change the lessee's liability under the 
 express covenants or agreements contained therein. 
 
 25. The lease of a private residence is not a warranty 
 that it is reasonably fit for habitation. Nor can a 
 lessee, unless the lessor has misrepresented the health- 
 fulness of a place, abandon it on the discovery that it 
 is unhealthful and escape paying rent. The law does 
 presume that a furnished rented house is not infested 
 with bugs. A learned law writer remarks that the law 
 on this subject seems doubtful, and is confined strictly 
 to furnished houses. We cannot help thinking that 
 the same legal presumption concerning the presence 
 of these animals should not apply alike to all furnished 
 houses, to one in the foulest part of New York as well 
 as to one on Murray Hill. Something besides loca- 
 tion, the kind of people usually inhabiting a house, 
 ought to enter into the proper determination of the 
 question. 
 
 As a person who wishes to hire a house or other 
 building can usually inspect it before making a lease
 
 MODES OF LIMITED OWNERSHIP 201 
 
 therefor, the owner is under no implied duty that it 
 shall be fit for the use intended by the lessee. In 
 harmony with this rule, the mere omission to disclose 
 a known defect is not a fraud; even the omission to 
 declare a nuisance dangerous to health or life is not 
 the landlord's duty. But, on one occasion, the lessor 
 was declared liable for an injury arising from an undis- 
 closed defect in the floor. 
 
 26. Unless the lessor expressly agrees to make re- 
 pairs he cannot be held for them. In some states, 
 however, he is bound to keep the leased premises in 
 ordinary repair. He is not bound to repair defects 
 in a building known to the tenant when he leased the 
 premises. In several states by statute the lessor of 
 a leased building, intended for the occupation of human 
 beings, must put it in a condition fit for habitation 
 and make repairs that are afterward required. The 
 statutes are limited in their application to property 
 used for dwelling-house purposes and do not apply 
 to business property. And in some states the tenant 
 is not liable for repairs arising from accident not caused 
 by the tenant. s., 
 
 No agreement is implied that the lessor will make 
 repairs. But when hallways, staircases, elevators, 
 etc., are used in common by other tenants of a build- 
 ing and are under the control of the landlord, he must 
 make the necessary repairs. In some states he is not 
 liable for injuries to a tenant caused by defects in 
 halls or stairways used in common by several tenants 
 when the defects occur after the beginning of the term 
 and the landlord is guilty of no active wrong or neg-
 
 202 BUSINESS MAN'S LEGAL ADVISER 
 
 ligence. The lessor of a building let out in stories, 
 each being in the exclusive possession of the lessee, 
 is not liable to the lessee on one floor for damages 
 caused by imperfections in another floor without the 
 lessor's fault. 
 
 Likewise the lessor of an entire tenement is not 
 liable for injuries to the lessee or to a subtenant 
 through defects in a hallway used hi common by all 
 the tenants since he is not legally in possession of it 
 and is not obliged to make repairs. 
 
 An agreement to keep the premises in repair is 
 generally construed to mean to keep them in as good 
 repair as at the beginning of the lease, but not to make 
 repairs in the way of substantial and permanent 
 changes. By the common law rule, which has been 
 followed generally in this country, an agreement on 
 the part of the lessee to keep in good repair imposes 
 on him an obligation to rebuild the leased premises 
 if they are destroyed during the term by fire or other 
 casualty, even when he is without fault. Now, how- 
 ever, in some states by statute or judicial construction, 
 no agreement or promise by a lessee to keep and leave 
 the leased premises in good repair requires him to 
 rebuild should the premises be destroyed by fire or 
 other casualty without fault or negligence on the 
 tenant's part unless the language of the lease shows 
 plainly that it was the intention of the parties that he 
 should be so bound. 
 
 The lessor of a water power impliedly agrees to keep 
 in repair the canal that conveys the water, or the sup- 
 ply of water unfailing. But the grant of a right to
 
 MODES OF LIMITED OWNERSHIP 203 
 
 take water from a well does not bind the owner to 
 keep it in repair. 
 
 27. Should the premises be destroyed neither lessor 
 nor lessee is bound to rebuild or repair, unless there is 
 an express agreement in the lease to that effect. But 
 if the lessee agrees to repair and restore the premises, 
 and surrender them in good condition, he must abide 
 by his covenant. It is said that even the impossibility 
 of performance by the act of a third person, or by the 
 act of God, affords no excuse for its non-performance. 
 It is the party's folly that led him to make such a 
 bargain without providing against the possible con- 
 tingency. 
 
 28. The lessee is not absolved from paying rent 
 through the lessor's failure to make repairs, even 
 though he has agreed to do so; nor will this justify the 
 lessee's abandoning the premises. His proper remedy 
 is an action against the lessor on his agreement. 
 In this he can recover such damages as he may prove 
 to have sustained in consequence of the lessor's failure 
 to keep his agreement. 
 
 29. Even though a building is destroyed by fire and 
 the lessee is free from fault, he is bound to pay the 
 rent, whatever may be the condition of the premises, 
 unless relieved by agreement or statute. In applying 
 this principle a farmer, who sought to have his rent 
 abated in consequence of the destruction of an im- 
 portant bridge, failed in his contention. Nor would 
 an oral stipulation not to exact rent should a building 
 burn down be of any avail, for this would contradict 
 the written agreement, which the court will not permit.
 
 204 BUSINESS MAN'S LEGAL ADVISER 
 
 And if by specific agreement the payment of rent is 
 to be partly or wholly suspended after the destruction 
 in part or wholly of the premises by fire or other acci- 
 dent, this does not mean their gradual decay, and in 
 such a case the lessee must continue to pay rent as 
 before. 
 
 From this hardship the tenant has been relieved in 
 many states by statute. This generally provides that 
 the tenant of a building that has become untenantable 
 by fire or gale, without his fault, is not bound to re- 
 pair, and may, if he pleases, surrender and abandon it. 
 
 30. A tenant has no right to make material or per- 
 manent alterations in the leased premises, and since 
 the lessor has the right to restrict the use and enjoy- 
 ment of his property when by express stipulation the 
 lessee is prohibited from making any alteration with- 
 out the consent of the lesser, the latter may recover 
 damages sustained by him for alterations in the 
 premises without his consent and to an injunction to 
 prevent the lessor from making other alterations. 1 
 
 31. Unless the rent is payable in advance, or a time 
 is subsequently fixed in a lease, it is not due until 
 the end of the year; if payable quarterly, it is not due 
 until the end of the quarter. When payable at a 
 particular date, it cannot be apportioned with respect 
 to a part of the time on such a date. 
 
 32. An agreement to pay rent is not affected by a 
 lessor's agreement concerning insurance. Should the 
 lessor insure his property and the building be burned, 
 the tenant has no right in equity to have the money 
 
 1 24 Cyc., 1094.
 
 MODES OF LIMITED OWNERSHIP 205 
 
 applied to rebuild the premises, nor to restrain the 
 lessor from suing for rent until the structure is restored. 
 But, if the money is to be applied by agreement to 
 repair or rebuild, then it is like other covenants which 
 run with the land, and the lessee is entitled to the 
 benefit of it. 
 
 33. When a lease provides that the tenant may at 
 his option have an extension for a specified time after 
 the expiration of the term, his holding over after the 
 time has expired is an election for the extended term. 
 
 A renewed lease is a new lease which operates as a 
 surrender of the old one. But a renewed lease may 
 be considered as a continuance of the original lease for 
 the protection of legal interests which, once created, 
 the law will not permit to be destroyed. But when a 
 lease is renewed under a contract expressly providing 
 that the tenant shall hold under the original lease, 
 and subject to its conditions and privileges, it will 
 be regarded as a continuance of the original lease and 
 the rights and privileges of the parties are to be deter- 
 mined by the terms. 
 
 34. When by the terms of the lease the lessor has 
 the option to renew the lease, or pay for the lessee's 
 improvements, the latter can make no claim for their 
 value after the lessor has exercised his option and re- 
 newed the lease. 
 
 When the option to purchase is duly exercised by 
 making the election, the relation of landlord and tenant 
 ceases and that of vendor and purchaser is created, 
 the lessor is no longer entitled to rent, and the lessee 
 continues to occupy as owner.
 
 so6 BUSINESS MAN'S LEGAL ADVISER 
 
 35. (a) A lessee who is evicted or turned out of the 
 premises by the lessor, or by a person having a still 
 better title, is discharged from paying rent after such 
 unwelcome treatment. But there can be no eviction 
 until the tenancy has actually begun. 
 
 (b) Any act done by the landlord, or by his direction, 
 which lessens the value of the premises to the tenant, 
 he may treat as an eviction. A landlord who entered 
 and partly destroyed a summer house thereby evicted 
 his tenant. In one case a lessor let some strenuous 
 pigs into grounds rented for exhibition purposes, which 
 rooted it up, rendering it unfit for use; this was an 
 eviction. 
 
 To darken the windows of leased premises by erect- 
 ing a new building is not an eviction, but if the tenant's 
 premises are thereby rendered unfit for use, he is 
 clearly justified in abandoning them. A curious 
 illustration is given the case of a distillery that was 
 leased to a tenant, and his landlord prevented 
 him from getting a license to run it. It was useless. 
 In another case a landlord failed to furnish heat as 
 he agreed to do; as the premises could not be inhabited, 
 the tenant was justified in fleeing from them. 
 
 More generally any act by the landlord or by his 
 direction, though not directly interfering with the 
 enjoyment of the premises, but rendering their occu- 
 pation incompatible with health and comfort, the 
 tenant may treat as an eviction. Thus, to establish 
 a smallpox hospital next to his grounds leased by a 
 tenant, or to deposit gunpowder or create some offen- 
 sive institution, saloon, or the like, that would render
 
 MODES OF LIMITED OWNERSHIP 207 
 
 life unendurable to his tenant, would be an eviction. 
 Of course, whether the particular act possesses this 
 character or not is purely an inquiry of fact to be deter- 
 mined in the usual manner. 
 
 (c) A lessor who enters and evicts the tenant wrong- 
 fully from a part of the premises suspends by his 
 conduct the entire rent until possession is restored. 
 An actual ouster from a part may be treated as an 
 eviction from the whole. 
 
 (d) The eviction must be done by the lessor or by his 
 order, or by a person having a title paramount to the 
 lessor's. An act done by a stranger, as the law calls 
 him, by which is meant a wrong-doer as distinguished 
 from one who asserts a paramount title, will not justify 
 an abandonment by the lessee. Thus the erection, 
 by an adjacent owner, of a wall that darkens the 
 windows of the leased premises will not justify the 
 tenant in putting on his hat, walking out, and declin- 
 ing to pay further rent. 
 
 (e) After a tenant's eviction from a part of the 
 premises by one who possesses a paramount title> 
 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) 
 
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 UNIVERSITY OP CAUPeRNU
 
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 1913 
 
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