THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 THE 
 
 AMERICAN LAW 
 
 OF 
 
 REAL PROPERTY. 
 
 BY 
 
 CHRISTOPHER G. TIEDEMAN, 
 
 AUTHOR OF " LIMITATIONS OF POLICE POWER," " SALES," " COM- 
 MERCIAL PAPER," ETC., AND LATE PBOFESSOB OF THE LAW 
 OF REAL PROPERTY IN THE UNIVERSITY CF THE 
 
 , : ;.; .,. , . , CITY OF NEW YORK.. 
 
 EEVISED AND ENLARGED BY 
 
 EDW. J. WHITE, 
 AUTHOR OF "MINES AND MINING REMEDIES," ETC. 
 
 THIRD EDITION. 
 
 ST. LOUIS: 
 
 THE F. II. THOMAS LAW BOOK CO. 
 1906.
 
 Entered according to Act of Congress in the year 190(5, by 
 
 HELEN S. TIEDEMAN, 
 In the Office of the Librarian of Congress at WashingtoB.
 
 I 
 
 <f 
 
 ( 
 
 PREFACE TO FIRST EDITION 
 
 In presenting to the profession a new work on the Amer- 
 ican Law of Real Property, the author does not deem an 
 apology necessary, although it may be appropriate to state 
 briefly his object and the scope of the work. The experi- 
 ence of the author, both as a student and as an instructor 
 in this branch of the law, has led him to believe that students 
 of the law generally look upon the law of Real Property 
 as extremely technical, arbitrary and unreasonable. Believ- 
 ing that all law is founded upon reason, and is developed 
 by forces, which are not produced or even controlled by 
 the arbitrary will of the legislator, and feeling confident 
 that a logical or historical reason could be found for every 
 principle of the law of Real Property, the author has made 
 that subject the object of his special study, and this volume 
 is given to the profession as the result of his investigations, 
 with the hope that it might aid in stripping this branch of 
 the law of its harsh and uninviting dress. 
 
 In one sense, this book cannot be considered exhaustive, 
 for volumes can be written on the subject without exhaust- 
 ing it. But it is thought that, in another sense, the book 
 may be considered as reasonably exhaustive, in that it con- 
 tains the enunciation of all those principles which are neces- 
 sary to a broad and comprehensive knowledge of the subject. 
 Instead of filling these pages with numerous citations of 
 the facts of particular cases, and leaving to the student the 
 discovery of the general principles, which underlie the cases, 
 
 (Hi) 
 
 671206
 
 IV PREFACE. 
 
 these principles are presented in a logical and systematic 
 order, with ;i statement of the rational or historical source 
 of each, while copious references to decided cases and stand- 
 ard treatises will enable the student to pursue his investiga- 
 tions into all the ramifications of the subject. It is hoped 
 that this plan of treatment will give to the work a peculiar 
 value as a text-book for students, while it will furnish to 
 practitioners a book of ready reference. 
 
 Free use has been made of thue researches of other writers, 
 and references to their works will be found on almost every 
 p;tue; but the author considers it necessary to make a special 
 acknowledgment of his indebtedness to the treatises of Air. 
 WiDiaina and Professor Washburn fop the valuable assistance 
 which he has derived from them. - 
 
 In' commending this work to the favorable consideration 
 of an enlightened profession, the author trusts that it will 
 not" be adjudged to be without merit. 
 
 C. G. T. 
 
 University of the State of Missouri, Law Department. 
 November 1st, 1883;
 
 PREFACE TO SECOND EDITION 
 
 The author desires in the issue of this second edition to 
 manifest his appreciation of the good will of the profession 
 towards his literary efforts in general, and particularly 
 toward the first edition of this book during the nine years 
 of its existence, by making important additions to both tex+ 
 and references, and thereby materially increasing the value 
 of the book. The entire text has been carefully revised and 
 additions made whenever they have been deemed necessary 
 and possible, without affecting its value as a concise and 
 compact statement of the fundamental principles of the law 
 of real property. Very many new cases have been cited in 
 support of the propositions of law throughout the ramifica- 
 tions of the subject; and almost all of the cases which have 
 been decided by the American Courts of last resort in the 
 intervening years have been cited, which involve the discussion 
 of questions of law in relation to the limitations of estates 
 by deed or by will and the rights of parties therein. It would 
 have been impossible to have cited all the new cases relating 
 to every subject discussed and contained in this book without 
 making the new edition too cumbersome : and for this reason 
 the new citations in the other branches of the subject, 
 which are discussed in detail in other works, have been 
 limited to those cases which involve material modifications of 
 existing laws. Cases which simply confirm points of law 
 already settled and determined have not in these instances 
 
 (v)
 
 Vi PREFACE. 
 
 been added to the notes. After all it is questionable whether 
 the unlimited citation of cases in any case adds materially 
 to the value of an elementary text-book, however necessary 
 it may be to a digest of adjudicated cases. 
 
 C. G. T. 
 
 University of the City of New York, 
 July 1, 1892.
 
 PREFACE TO THIRD EDITION 
 
 As a student under the learned author of this work, who 
 so thoroughly understood the subject of these pages and con- 
 tributed, both through the medium of this book and by his 
 life's work, to the scientific treatment and elucidation of this 
 branch of the law, the editor of this edition long since learned 
 to respect the distinguished ability of the author and his 
 systematic treatment of the principles of the law of real 
 property. 
 
 The fact that his work has been generally regarded by the 
 bench and bar as a recognized authority upon the law of 
 real property, since its appearance, and that it has been so 
 extensively used as an elementary text-book, is sufficient evi- 
 dence of the merit of the work. These considerations 
 prompted the editor of this edition to make but few altera- 
 tions in the text. 
 
 The small space devoted, in the previous editions, to the 
 subject of Fixtures, and the absence of a discussion of the 
 
 more recent legislation in the United States upon Title Regis- 
 
 
 
 tration, and the relative importance of these subjects, sug- 
 gested to the publisher the advisability of a separate treat- 
 ment of these titles. This is the basis of the editor's apology 
 to the profession for the two additional chapters added to the 
 text of the previous editions. Some of the more recent de- 
 cisions seemed to justify the few other additions to and 
 changes in the text that have been made. 
 
 Most of the old, well considered cases, cited in the previous 
 
 vii
 
 Vlll PREFACE. 
 
 editions, have been retained, and it was the intention to cite 
 such of the more recent decisions as ought to be cited in a 
 text-book of the size and character of this one. 
 
 The work of revision was pursued with a high regard for 
 the usefulness of the original text and a desire to avoid all 
 alterations therein that might detract therefrom. The editor 
 trusts he has performed his task in a manner that would 
 meet with the approval of his preceptor and friend, the 
 author, feeling confident, if this were true, of the approbation 
 of the profession. 
 
 E. J. W. 
 Aurora, Mo., June, 1906.
 
 TABLE OP CONTENTS. 
 
 CHAPTER I. 
 
 REAL PRPOERTY. 
 
 SECTION 1. What is real property. 
 
 2. What is land. 
 
 3. Elements composing. 
 
 4. Double ownership in land. 
 
 5. Incidents of dual ownership. 
 
 6. Lands, tenements and hereditaments. 
 
 7. Emblements. 
 
 8. Trees. 
 
 CHAPTER II. 
 
 FIXTURES. 
 
 SECTION 9. General doctrine of. 
 
 10. Nature and definition of. 
 
 11. Tests for determining what are. 
 
 12. Identity and subsequent use of chattel. 
 
 13. Between what parties the question may arise. 
 
 14. Constructive annexation. 
 
 15. Temporary annexation. 
 
 16.- Questions of, between landlord and tenant. 
 
 17. Fixtures erected by licensee. 
 
 18. Time for removal of fixtures. 
 
 CHAPTER III. 
 
 PRINCIPLES OF THE FEUDAL SYSTEM. 
 
 SECTION 19. What is tenure. 
 
 20. Feudal tenure. 
 
 21. Feud or Fief. 
 
 22. Subinfeudation.
 
 TABLE OP CONTENTS. 
 
 {SECTION 23. The manor and its system of dividing up its lands. 
 24. Feoff ment and livery of seisin. 
 26. Tenure in the United States. 
 
 26. Estates Classes of. 
 
 27. Same Estates in possession and in expectancy. 
 
 28. Joint and several estates. 
 
 CHAPTER IV. 
 
 ESTATE IN FEE SIMPLE. 
 
 SECTION 29. Definition. 
 
 30. Words of limitation. 
 
 31. Statutes abolishing words of limitation. 
 
 32. The power of disposition. 
 
 33. An absolute power of disposition an incident of a fee. 
 
 34. Attempted limitation after, void. 
 
 35. Liability for debts. 
 
 CHAPTER V. 
 
 ESTATES TAIL. 
 
 SECTION 36. Base or qualified fees. 
 
 37. Fee conditional at common law. 
 
 38. Estates tail. 
 
 39. Necessary words of limitation. 
 
 40. Estates tail created by implication. 
 
 41. Classes of estates tail. 
 
 42. How estates tail may be barred. 
 
 43. Merger of n estate tail. 
 
 44. Estate tail after possibility of issue extinct. 
 
 45. Estates tail in the United States. 
 
 CHAPTER VI. 
 
 ESTATES FOR LIFE. 
 
 SECTION 46. Definition and classes of life estates. 
 
 47. Peculiarities of an estate per auter vie. 
 
 48. Words of limitation in estates for life. 
 
 49. Estates tail, converted into life estates by statute. 
 
 50. The merger of life estate in a greater. 
 
 51. Alienation by tenant for life.
 
 TABLE OF CONTENTS. 
 
 SECTION 52. Power given life tenant to convey the fee. 
 
 53. Tenure between tenant for life and reversioner. 
 
 54. Apportionment between life tenant and reversioner, of in- 
 
 cumbrances. 
 
 55. Same Of rent. 
 
 56. Claim for improvements. 
 
 57. Estovers. 
 
 58. Emblements What they are. 
 
 59. Same Who may claim them. 
 
 60. Definition and history of waste. 
 
 61. What acts constitute waste General rule. 
 
 62. Waste In respect to trees. 
 
 63. Property in timber unlawfully cut. 
 
 64. Continued In respect to minerals and other deposits. 
 
 65. Continued Management and culture of land. 
 
 66. Continued In respect to buildings. 
 
 67. Exemption from liability. 
 
 68. Remedies for waste. 
 
 CHAPTER VII. 
 
 ESTATES ARISING OUT OP THE MARITAL RELATION. 
 
 SECTION I. Estate of husband during coverture. 
 II. Curtesy. 
 
 III. Dower. 
 
 IV. Homestead. 
 
 SECTION I. 
 
 ESTATE OF HUSBAND, DURING COVERTURE. 
 
 SECTION 69. Effect of marriage upon wife's property. 
 
 70. Husband's rights in equity. 
 
 71. How husband's rights may be barred. 
 
 72. How prevented from attaching. 
 
 73. Restrictions upon alienation of wife's separate property. 
 
 74. Statutory changes in the United States. 
 
 SECTION II. 
 
 ESTATE BY CURTESY. 
 
 SECTION 75. Definition. 
 76. Marriage.
 
 TABLE OF CONTENTS. 
 
 BBCTIOX 77. Estate of inheritance necessary in the wife. 
 
 78. Curtesy in fees determinate. 
 
 79. Curtesy in equitable estates. 
 
 80. Seisin in wife during coverture. 
 
 81. Curtesy in reversion. 
 
 82. Necessity of issue, 
 
 83. Liability for husband's debts. 
 
 84. How estate may be defeated. 
 
 SECTION III. 
 
 DOWER. 
 
 SECTION 85. Dower defined and explained. 
 
 86. To what estates dower attaches. 
 
 87. Dower in equitable estates. 
 
 88. Dower in lands of trustee. 
 
 89. Dower in mortgages. 
 
 90. Dower in proceeds of sale. 
 
 91. Seisin required in the husband during coverture. 
 
 92. Continued Defeasible or determinable seisin. 
 
 93. Duration of the seisin. 
 
 94. Instantaneous seisin. 
 
 95. Marriage must be legal. 
 
 96. How dower may be lost or barred by act of the husband. 
 
 97. Continued By wife's release during coverture. 
 
 98. Continued By elopement and divorce. 
 
 99. Continued By loss of husband's seisin. 
 
 100. Continued By estoppel in pats. 
 
 101. Continued By statute of limitations. 
 
 102. Continued By exercise of eminent domain. 
 
 103. Widow's quarantine. 
 
 104. Assignment Two modes. 
 
 105. Continued Of common right. 
 
 106. Dower against common right. 
 
 107. By whom may dower be assigned. 
 
 108. Remedies for recovery of dower. 
 
 109. Demand necessary. 
 
 110. Against whom and where the action is brought. 
 
 111. Continued Abatement by death of widow. 
 
 112. Judgment, what it contains. 
 
 113. Continued Damages, when recoverable. 
 
 114. Continued Assignment after judgment. 
 
 115. Assignment Where two or more widows claim dower. 
 
 116. Decree of sum of money in lieu of dower, 
 xii
 
 TABLE OP CONTENTS. 
 
 SECTION 117. Dower barred by jointure. 
 
 118. Continued By testamentary provision. 
 
 119. Continued By statutory provision for inheritance. 
 
 SECTION IV. 
 
 HOMESTEAD ESTATES. 
 
 SECTION 120. History and origin. 
 
 121. Nature of the estate. 
 
 122. Who may claim homestead. 
 
 123. What may be claimed. 
 
 124. Proceedings for allotment. 
 
 125. Exemption from debt. 
 
 126. How homestead may be lost By alienation. 
 
 127. Continued By abandonment. 
 
 CHAPTER VIII. 
 
 ESTATES LESS THAN FREEHOLD. 
 
 SECTION I. Estates for years. 
 
 II. Estates at will, and tenancies from year to year. 
 III. Estates at sufferance. 
 
 SECTION I. 
 
 SECTION 128. History of estates for yearg. 
 
 129. Definition. 
 
 130. Term defined. 
 
 131. Interesse termini. 
 
 132. Terms commencing in futuro. 
 
 133. The rights of lessee for years. 
 
 134. How created. 
 
 135. Form of instrument. 
 
 136. Continued Distinction between present lease and con- 
 
 tract for a future one. 
 
 137. Acceptance of lease necessary. 
 
 138. Relation of landlord and tenant. 
 
 139. Assignment and subletting. 
 
 140. Involuntary alienation. 
 
 141. Disposition of terms after death of tenant. 
 
 142. Covenants in a lease, in general. 
 
 143. Continued Express and implied covenants. 
 
 xiii
 
 TABLE OF CONTENTS. 
 
 SECTION 144. Implied covenant for quiet enjoyment. 
 145. Implied covenant for rent. 
 14fi. Implied covenant against waste. 
 
 147. Covenants running with the land. 
 
 148. Conditions in leases. 
 
 149. Rent reserved Necessity of consideration. 
 
 150. Rent reserved Condition of forfeiture. 
 
 151. How relation of landlord and tenant may be determined. 
 
 152. What constitutes eviction. 
 
 153. Constructive eviction. 
 
 154. Partial eviction. 
 
 155. Surrender and merger. 
 
 156. How surrender may be effected. 
 
 157. Right of lessee to deny lessor's title. 
 
 158. Effect of disclaimer of lessor's title. 
 
 159. Options of purchase and for renewal. 
 
 160. Letting land upon shares. 
 
 161. Actions between landlords and tenants. 
 
 SECTION II. 
 
 ESTATES AT WILL AND TENANCIES FROM YEAR TO YEAB. 
 
 SECTION 162. Estates at will. 
 
 163. How estates at will may be determined. 
 
 164. Estates at will distinguished from tenancy from year to 
 
 year. 
 
 165. Tenancy at will What now included under that term. 
 
 166. Tenancy at will Arising by implication of law. 
 
 167. Qualities of tenancies from year to year. 
 
 168. What notice is required to determine tenancy from year 
 
 to year. 
 
 169. How notice may be waived. 
 
 SECTION III. 
 
 TENANCY AT SUFFERANCE. 
 
 88011017 170. Tenancy at sufferance, what is. 
 
 171. Incidents of tenancy at sufferance. 
 
 172. How the tenancy is determined. 
 
 173. The effect of forcible entry. 
 
 riv
 
 TABLE OF CONTENTS. 
 
 CHAPTEK IX. 
 
 JOINT ESTATES. 
 
 SECTION I. Classes of joint estates. 
 
 II. Incidents common to all joint estates. 
 III. Partition. 
 
 SECTION I. 
 
 CLASSES OF JOINT ESTATES 
 
 I. Joint-tenancy. 
 II. Tenancy in common. 
 
 III. Estates in coparcenary. 
 
 IV. Estates in entirety. 
 
 V. Estates in partnership. 
 
 SECTION 174. Joint and several estates distinguished. 
 
 175. Joint-tenancy, what is. 
 
 176. Incidents of joint-tenancy. 
 
 177. Doctrine of survivorship, how right of survivorship is 
 
 destroyed. 
 
 178. Tenancy in common, what is. 
 
 179. Joint estates, when tenancies in common. 
 
 180. Tenancy in coparcenary. 
 
 181. Estates in entirety. 
 
 182. Estates in entirety in a joint-tenancy, or tenancy fn 
 
 common. 
 
 183. Tenancy in common between husband and wife. 
 
 184. Estates in partnership. 
 
 185. Several interests of partners. 
 
 SECTION II. 
 
 INCIDENTS COMMON TO ALL JOINT ESTATES. 
 
 SECTION 186. Disseisin by one co-tenant. 
 
 187. Adverse title acquired by one co-tenant. 
 
 188. Maintenance of actions against trespassers. 
 
 189. Alienation of joint estates. 
 
 190. Waste by co-tenants. 
 
 191. Liability of one co-tenant for rents and profits. 
 
 XV
 
 TABLE OF CONTKNTS. 
 
 SECTION III. 
 
 PARTITION. 
 
 SECTION. 192. Definition of partition. 
 
 193. Voluntary partition. 
 
 194. Involuntary or compulsory partition. 
 
 195. Who can maintain action for partition. 
 
 196. Partial partition. 
 
 197. Manner of allotment. 
 
 198. Relief incidental to partition. 
 
 199. Effect of partition. 
 
 CHAPTER X. 
 
 ESTATES UPON CONDITION AND LIMITATION, AND CONDITIONAL 
 
 LIMITATIONS. 
 
 SBCTIOX 200. Definition of estates upon condition. 
 
 201. Words necessary to create an estate upon condition. 
 
 202. Conditions precedent and subsequent distinguished. 
 
 203. Invalid conditions Impossibility of performance. 
 
 204. Invalid condition Pecause of Illegality. 
 
 205. Building restrictions in deeds. 
 
 206. The time of performance. 
 
 207. The effect of breach of the condition. 
 
 208. Waiver of performance. 
 
 209. Equitable relief against forfeiture. 
 
 210. Estates upon condition, distinguished from trust*. 
 
 211. Same From estates upon limitation and conditional 
 
 limitations. 
 
 CHAPTER XL 
 
 MORTGAGES. 
 
 SECTION I. Nature and Classification of Mortgages. 
 
 II. The Rights and Liabilities of Mortgagors and 
 
 Mortgagees. 
 
 III. Remedies and Remedial Rights incident to a 
 Mortgage. 
 
 xvi
 
 TABLE OF CONTENTS. 
 
 SECTION I. 
 
 NATURE AND CLASSIFICATION OF MORTGAGES. 
 
 SECTION 212. Definition. 
 
 213. Mortgages by deposit of title deeds. 
 
 214. Continued Notice to subsequent purchasers. 
 
 215. Continued Their recognition in this country. 
 
 216. Continued Foreclosure. 
 
 217. Vendor's lien. 
 
 218. Continued Discharge or waiver of the lien. 
 
 219. Continued In whose favor raised. 
 
 220. Vendee's lien. 
 
 221. Enforcement of vendor's and vendee's liens. 
 
 222. Mortgage at common law. 
 
 223. Vivum vadium. 
 
 224. Welsh mortgage. 
 
 225. Equity of redemption. 
 
 226. The mortgage in equity. 
 
 227. Influence of equity upon the law. 
 
 228. The form of a mortgage. 
 
 229. Execution of the defeasance. 
 
 230. Form of defeasance. 
 
 231. Agrements to repurchase. 
 
 232. The defeasance clause in equity. 
 
 233. The admissibility of parol evidence. 
 
 234. Contemporaneous agreements. 
 
 235. Subsequent agreements. 
 
 236. The mortgage debt. 
 
 237. Mortgages for the support of the mortgagee. 
 
 238. What may be mortgaged. 
 
 SECTION II. 
 
 THE RIGHTS AND LIABILITIES OF MORTGAGORS AND MORTGAGEES. 
 
 SECTION 239. The mortgagor's interest. 
 
 240. The mortgagee's interest. 
 
 241. Devise of the mortgage. 
 
 242. Merger of interests. 
 
 243. Possession of mortgaged premises. 
 
 244. Special agreements in respect to the possession. 
 
 245. Rents and profits. 
 
 246. Mortgagee's liability for rents received. 
 
 247. Tenure between mortgagor and mortgagee. 
 
 xvii
 
 TABLE OF CONTENTS. 
 
 SECTION 248. Insurance of the mortgaged premises. 
 
 249. Assignment of the mortgage. 
 
 250. Common-law assignment. 
 
 251. Assignment under the lien theory. 
 
 252. Assignment of the mortgagor's interest. 
 253. Rights and liabilities of assignees. 
 
 254. Effect of payment or tender of payment. 
 
 255. Who may redeem. 
 
 256. What acts extinguish the mortgage. 
 
 257. The effect of a discharge. 
 
 258. When payment will work an assignment. 
 259. Registry of mortgages, and herein of priority. 
 2GO. Rule of priority from registry, its force and effect. 
 
 261. Registry of assignments of mortgages and equities of 
 
 redemption. 
 
 262. Tacking of mortgages. 
 
 263. Priority in mortgages for future advances. 
 
 264. Satisfaction of the mortgage on the records. 
 
 SECTION III. 
 
 REMEDIES AND REMEDIAL RIGHTS INCIDENT TO MORTGAGES. 
 
 SECTION 265. Actions for waste. 
 
 266. Process to redeem. 
 
 267. Accounting by the mortgagee. 
 
 268. Continued What are lawful debits? 
 
 269. Continued What are lawful credits? 
 
 270. Making rests. 
 
 271. Balance due. 
 
 272. Foreclosure Nature and kinds of. 
 
 273. Continued W 7 ho should be made parties? 
 
 274. Parties to Foreclosures Continued. 
 
 275. Effect of decree in foreclosure upon the land. 
 
 276. The effects of foreclosure upon the debt. 
 
 277. Mortgages, with power of sale. 
 
 278. Character of the mortgage in relation to the power. 
 
 279. Purchase by mortgagee at his own sale. 
 
 280. Extinguishment of the power. 
 
 281. Application of purchase-money. 
 
 282. Deeds of trust. 
 
 283. Contribution to redeem General statement. 
 
 284. Mortgagor v. his assignees. 
 
 285. Contribution between assignees of the mortgagor Effect 
 
 of release of one of them, 
 xviii
 
 TABLE OP CONTENTS. 
 
 SECTION 286. Contribution between the surety and the mortgagor. 
 
 287. Between heirs, widows, and devisees of the mortgagor. 
 
 288. Between the mortgaged property and the mortgagor's per- 
 
 sonal estate. 
 
 289. Special agreements affecting the rights of contribution and 
 
 exoneration. 
 
 290. Marshaling of assets between successive mortgagees. 
 
 CHAPTER XII. 
 
 " REVERSION." 
 
 SECTION 291. Definition. 
 
 292. Reversion Assignable and devisable. 
 
 293. Reversion Descendible to whom. 
 
 294. Dower and curtesy in reversions. 
 
 295. Rights and powers of the reversioner. 
 
 CHAPTER XIII. 
 
 REMAINDERS. 
 
 SECTION I. Of remainders in general and herein of vested 
 
 remainders. 
 
 II. Contingent remainders. 
 III. Estates within the rule in Shelley's Case. 
 
 SECTION I. 
 
 OP REMAINDERS IN GENERAL AND HEREIN OP VESTED REMAINDERS. 
 
 SECTION 296. Nature and definition of remainders. 
 
 297. Kinds of remainders. 
 
 298. Successive remainders. 
 
 299. Disposition of a vested remainder. 
 
 300. Relation of tenant and remainder-man. 
 
 301. Vested and contingent remainders further distinguished 
 
 Uncertainty of enjoyment. 
 
 302. Same Remainder to a class. 
 
 303. Same After the happening of the contingency. 
 
 304. Cross remainders. 
 
 XIX
 
 TABLE OF CONTENTS. 
 
 SECTION II. 
 
 CONTINGENT REMAINDERS. 
 
 SECTION 305. Nature and origin of contingent remainders. 
 
 306. Classes of contingent remainders. 
 
 307. Alienation of contingent remainders. 
 
 308. Vested remainder after a contingent. 
 
 309. Same Such limitations in wills. 
 
 310. Alternate remainders in fee. 
 
 311. Restrictions on contingency Legality. 
 
 312. Same Remoteness. 
 
 313. Same Abridging the particular estate. 
 
 314. How contingent remainders may be defeated. 
 
 315. Same 1. By disseisin of particular tenant. 
 
 316. Same 2. By merger. 
 
 317. Same 3. By feoffment. 
 
 318. Same 4. By entry for condition broken. 
 
 319. Trustees to preserve. 
 
 320. Actions by remainder-men. 
 
 SECTION III. 
 
 ESTATES WITHIN THE RULE IN SHELLEY'S CASE. 
 
 SECTION 321. Origin and nature of the rule. 
 322. Requisites of the rule. 
 
 CHAPTER XIV. 
 
 USES AND TRUSTS. 
 
 SECTION I. Uses before the Statute of Uses. 
 II. Uses under the Statute of Uses. 
 
 III. Shifting, Springing and Contingent Uses. 
 
 IV. Trusts. 
 
 SECTION I. 
 
 USES BEFORE THE STATUTE OF USES. 
 
 SECTION 323. Pre-statement. 
 
 324. Origin and history. 
 
 325. What is a use. 
 XX
 
 TABLE OP CONTENTS. 
 
 SECTION 326. Enforcement of the use. 
 
 327. Distinction between Uses and Trusts. 
 
 328. How uses may be created. 
 
 329. Same Resulting use. 
 
 330. Same By simple declarations. 
 
 331. Who might be feoffees to use and cestuis que use. 
 
 332. What might be conveyed to uses. 
 
 333. Incidents of uses. 
 
 334. Alienation of uses. 
 
 335. Estates capable of being created in uses. 
 
 336. Disposition of uses by will. 
 
 337. How lost or defeated. 
 
 SECTION II. 
 
 USES UNDER THE STATUTE OF USES. 
 
 SECTION 338. History of the Statute of Uses. 
 
 339. When statute will operate. 
 
 340. A person seised to a use and in esse. 
 
 341. Freehold necessary. 
 
 342. Use upon a use. 
 
 343. Feoffee and cestui que use Same person. 
 
 344. A use in esse. 
 
 345. Cestui que use in esse. 
 
 346. Words of creation and limitation. 
 
 347. Active and passive uses and trusts. 
 
 348. Uses to married women. 
 
 349. Cases in which the statute will not operate. 
 
 SECTION III. 
 
 CONTINGENT, SPRINGING, AND SHIFTING USES. 
 
 SECTION 350. Future uses. 
 
 351. Contingent future uses How supported. 
 
 352. Importance of the question. 
 
 353. The solution of the question. 
 
 354. Contingent uses. 
 
 355. Springing uses. 
 
 356. Shifting uses. 
 
 357. Future uses in chattel interests. 
 
 358. Shifting and springing uses How defeated. 
 
 359. Incidents of springing and shifting uses. 
 
 xxi
 
 TABLE OP CONTENTS. 
 
 SECTION IV. 
 
 TRUSTS. 
 
 SECTION 360. What are trusts. 
 
 361. Active and passive trusts. 
 
 362. Executed and executory trusts. 
 
 363. Express trusts. 
 
 364. Implied, resulting, and constructive trusts. 
 
 365. Implied trusts. 
 
 366. Resulting trusts. 
 
 367. Same Payment of consideration. 
 
 368. Constructive trusts. 
 
 369. Interest of the cestui que trust. 
 
 370. Liability for debts. 
 
 371. Words of limitation. 
 
 372. Doctrine of remainders applied to trusts. 
 
 373. How created and assigned. 
 
 374. Statute of Frauds. 
 
 375. How affected by want of a trustee. 
 
 376. Removal of trustees. 
 
 377. Refusal of trustee to serve. 
 
 378. Survivorship. 
 
 379. Merger of interest. 
 
 380. Rights and powers of trustees. 
 
 381. Rights and powers of ccstuis que trust. 
 
 382. Alienation of trust estate. 
 
 383. Liability of third persons for performance of the trust. 
 
 384. Compensation of trustee. 
 
 CHAPTER XV. 
 
 EXECUTORY DEVISES. 
 
 SECTION 385. Nature and origin. 
 
 386. Executory devises, vested or contingent. 
 
 387. Classes of executory devises. 
 
 388. Distinguished from devises in prcescnti. 
 
 389. Reversion of estate undisposed of. 
 
 390. Distinguished from uses. 
 
 391. Distinguished from remainders. 
 
 392. Same Limitation after a fee. 
 
 393. Same Limitation after an estate-tail. 
 
 394. Same Where first limitation lapses. 
 
 -395. Same Limitations after an executory devise, 
 xxii
 
 TABLE OF CONTENTS. 
 
 SECTION 396. Indestructibility of executory devises. 
 
 397. Limitation upon failure of issue. 
 
 398. Same In deeds. 
 
 399. Doctrine of perpetuity. 
 
 400. Rule against accumulation of profits. 
 
 401. Executory devises of chattel interests. 
 
 CHAPTER XVI. 
 
 POWERS. 
 
 SECTION 402. The nature of powers in general. 
 
 403. Powers of appointment. 
 
 404. Kinds of powers. 
 
 405. Suspension and destruction of powers. 
 
 406. How powers may be created. 
 
 407. Powers distinguished from estates. 
 
 408. Power enlarging the interest, with which it is coupled. 
 
 409. Who can be donees. 
 
 410. By whom the power may be executed. 
 
 411. Mode of execution. 
 
 412. Who may be appointees. 
 
 413. Execution by implication. 
 
 414. Excessive execution. 
 
 415. Successive execution. 
 
 416. Revocation of appointment. 
 
 417. Defective executions How and when cured. 
 
 418. Non-executions. 
 
 419. Rules of perpetuity. 
 
 420. Rights of donee's creditors in the power. 
 
 421. The rights of creditors of the beneficiary. 
 
 CHAPTER XVII. 
 
 INCORPOREAL HEREDITAMENTS. 
 
 SECTION I. Rights of Common. 
 
 II. Easements. 
 
 III. Franchises. 
 
 IV. Rents. 
 
 SECTION 422. Incorporeal hereditaments defined. 
 
 423. Kinds of incorporeal hereditaments. 
 
 xxiii
 
 TABLE OF CONTENTS. 
 
 SECTION I. 
 
 RIGHTS OP COMMON. 
 
 SECTION 424. Definition. 
 
 425. Kinds of rights of common. 
 
 426. Commons appcndant and appurtenant. 
 
 SECTION II. 
 
 EASEMENTS. 
 
 SECTION 427. What are easements. 
 
 428. When merger takes effect. 
 
 429. How acquired. 
 
 430. Easements by express grant. 
 
 431. Implied grant. 
 
 432. Equitable casements. 
 
 433. Easements implied from covenant. 
 
 434. Rights of action in defense of easement. 
 
 435. How easements may be lost or extinguished. 
 
 436. Kinds of easements. 
 
 437. Eight of way. 
 
 438. A private way. 
 
 439. Ways of necessity. 
 
 440. Who must repair the way. 
 
 441. Public or highways. 
 
 442. Light and air. 
 
 443. How acquired. 
 
 444. Right of water. 
 
 445. Percolations and swamps. 
 
 446. Artificial water courses. 
 
 447. Easements in water courses and surface drainage. 
 
 448. Right of lateral and subjacent support. 
 
 449. Implied grant of lateral support. 
 
 450. Party walls. 
 
 451. Double ownership in buildings Subjacent support. 
 
 452. Legalized nuisances. 
 
 SECTION III. 
 
 FRANCHISES. 
 SECTION 453. Definition. 
 
 454. Kinds of franchises. 
 
 455. Mutunl obligations.. 
 
 456. Conflicting franchises Constitutional prohibition. 
 xxiv
 
 TABLE OF CONTENTS 
 
 SECTION IV. 
 
 RENTS. 
 SECTION 457. Rents defined. 
 
 458. Rent-service. 
 
 459. Rent-charge and rent-seek Fee farm rents. 
 
 460. How created. 
 
 461. How extinguished or apportioned. 
 
 462. Remedies for the recovery of the rent. 
 
 463. Liens arising from charges by will or by deed. 
 
 464. Liens by express charges. 
 
 CHAPTER XVIII. 
 
 LICENSES. 
 
 SECTION 465. What is a license? 
 
 466. Revocation of the license. 
 
 467. Revocation of license Continued. 
 
 468. How licenses are created. 
 
 CHAPTER XIX. 
 
 TITLES GENERAL CLASSIFICATION OF TITLES. 
 
 SECTION 469. What is title? By descent and purchase. 
 470. Original and derivative titles. 
 
 CHAPTER XX. 
 
 TITLE BY DESCENT. 
 
 SECTION 471. Definition. 
 
 472. Lex looi rei sitas. 
 
 473. Consanguinity and affinity. 
 
 474. How lineal heirs take. 
 
 475. Lineal consanguinity in the ascending series. 
 
 476. Collateral heirs. 
 
 477. Computation of collateral relationship. 
 
 478. Ancestral property. 
 
 479. Kindred of the whole and half blood. 
 
 480. Advancement Hotchpot. 
 
 481. Posthumous children. 
 
 482. Illegitimate children. 
 
 483. Alienage a bar to inheritance. 
 
 XXV
 
 TABLE OP CONTENTS. 
 
 CHAPTER XXI. 
 
 * 
 
 TITLE BY ORIGINAL ACQUISITION. 
 
 SECTION I. Title by occupancy. 
 II. Title by accretion. 
 
 III. Title by adverse possession. 
 
 IV. Statute of Limitations. 
 V. Estoppel. 
 
 VI. Abandonment. 
 
 SECTION I. 
 
 TITLE BY OCCUPANCY. 
 
 SECTION 484. Definition. 
 
 485. Condition of public lands in the United States. 
 
 486. Estates per auter vie. 
 
 SECTION II. 
 
 TITLE BY ACCRETION. 
 
 SECTION 487. Definition. 
 
 488. Allurion. 
 
 489. Filum Aquae. 
 
 SECTION III. 
 
 TITLE BY ADVERSE POSSESSION. 
 
 SECTION 490. Effect of naked possession. 
 
 491. Seisin and disseisin. 
 
 492. Disseisin and dispossession distinguished. 
 
 493. Actual and constructive possession. 
 
 494. Actual or constructive possession Continued. 
 
 495. What acts constitute actual possession Visible or noto- 
 
 rious. 
 
 496. Possession must be distinct and exclusive. 
 
 497. Possession Hostile and adverse. 
 
 498. Adverse possession, when entry was lawful. 
 
 499. Disseisor's power to alien. 
 
 500. Betterments. 
 
 501. Title by adverse possession How defeated. 
 
 502. Title by adverse possession How made absolute, 
 xxvi
 
 TABLE OF CONTENTS. 
 
 SECTION IV. 
 
 STATUTE OF LIMITATIONS. 
 
 SECTION 503. What the statute enacts. 
 
 504. Adverse possession Continuous and uninterrupted. 
 
 505. Against whom the statute runs. 
 
 506. How and when statute operates. 
 
 507. Effect of the statute. 
 
 SECTION V. 
 
 ESTOPPEL. 
 
 SECTION 508. Definition. 
 
 509. Estoppels in pais. 
 
 510. Is fraud necessary to estoppel in pais. 
 
 511. Estoppel in deed. 
 
 512. Estoppel in deed Continued. 
 
 513. Effect of estoppel upon the title. 
 
 514. Effect of estoppel Continued. 
 
 515. Estoppel binding upon whom. 
 
 SECTION VI. 
 
 ABANDONMENT. 
 
 SECTION 516. Effect of abandonment generally. 
 
 517. Abandonment of title by adverse possession. 
 
 518. Surrender of deed. 
 
 
 
 CHAPTER XXII. 
 
 TITLE BY GRANT. 
 
 SECTION I. Title by public grant. 
 
 II. Title by involuntary alienation. 
 III. Title by private grant. 
 
 SECTION I. 
 
 TITLE BY PUBLIC GRANT. 
 
 SECTION 519. Public lands. 
 
 520. Forms of public grant. 
 
 521. The relative value of the patent and certificate of entry. 
 
 522. Pre-emption. 
 
 xxvii
 
 TABLE OP CONTENTS. 
 
 SECTION II. 
 
 TITLE BY INVOLUNTARY ALIENATION. 
 
 SECTION 523. Title ly involuntary alienation, what is? 
 
 524. Scope of legislative authority. 
 
 525. Eminent domain. 
 
 526. Persons under disability. 
 
 527. Confirming defective titles. 
 
 528. Sales by administrators and executors. 
 
 529. Sales under execution. 
 
 530. Sales by decree of chancery. 
 
 531. Tax-titles. 
 
 532. Validity of tax-title. 
 
 533. Judicial sales for delinquent taxes. 
 
 SECTION III. 
 
 TITLE BY PRIVATE GRANT. 
 
 SECTION 534. Title by private grant, what is? 
 
 (a.) Common-law conveyances. 
 
 535. Principal features and classes of common-law conveyances. 
 
 536. Feoffment. 
 
 537. Grant. 
 
 538. Lease. 
 
 539. Release, confirmation and surrender. 
 
 (6.) Conveyances under the Statute of Uses. 
 
 540. Retrospection. 
 
 541. Covenant to stand seised. 
 
 542. Bargain and sale. 
 
 543. Future estates of freehold in bargain and sale. 
 
 544. Lease and release. 
 
 (c.) Modern conveyances. 
 
 545. What conveyances judicially recognized. 
 
 546. Statutory forms of conveyance. 
 
 547. Quit-claim deeds. 
 
 548. Dual character of common conveyances. 
 
 549. Is a deed necessary to convey freeholds? 
 
 CHAPTER XXIII. 
 
 DEEDS THEIR REQUIREMENTS AND COMPONENT PARTS. 
 
 SECTION I. The requisites of a deed. 
 xxviii
 
 TABLE OF CONTENTS. 
 
 II. The component parts of a deed. 
 III. Covenants in deeds. 
 
 SECTION I. 
 
 THE REQUISITES OF A DEED. 
 
 SECTION 550. Definition of a deed. 
 
 551. Requisites, what they are. 
 
 552. A sufficient writing, what constitutes. 
 
 553. A sufficient writing, what constitutes Continued. 
 
 554. Alterations and interlineations. 
 
 555. Proper parties The grantor. 
 
 556. Infants and insane persons! 
 
 557. Ratification and disaffirmance. 
 
 558. Deeds of married women. 
 
 559. A disseisee cannot convey. 
 
 560. Fraud and duress. 
 
 561. Proper parties Grantees. 
 
 562. Proper parties named in the deed. 
 
 563. A thing to he granted. 
 
 564. A thing to be granted Continued. 
 
 565. The consideration. 
 
 566. Voluntary and fraudulent conveyances. 
 
 567. Operative words of conveyance. 
 
 568. Execution, what constitutes. 
 
 569. Power of attorney. 
 
 570. Power of attorney granted by married woman. 
 
 571. Signing. 
 
 572. Sealing. 
 
 573. Attestation. 
 
 574. Acknowledgment or probate. 
 
 575. Reading of the deed, when necessary. 
 
 576. Delivery and acceptance. 
 
 577. What constitutes a sufficient delivery. 
 
 578. Delivery to stranger When grantee's assent presumed. 
 
 579. Escrows. 
 
 580. Registration of deeds. 
 
 581. Requisites of a proper record. 
 
 582. To whom is record constructive notice. 
 
 583. Priority of unrecorded mortgages over judgments. 
 
 584. Of what is record constructive notice. 
 
 585. From what time priority takes effect. 
 580. What constitutes notice of title? 
 
 xxix
 
 TABLE OF CONTENTS. 
 
 SECTION II. 
 
 COMPONENT PARTS OF A DEED. 
 
 SECTION 587. Deeds-poll and of indenture. 
 
 588. Component parts of a deed. 
 
 589. The premises. 
 
 590. Description General statement. 
 
 591. Contemporanea Expositio est optima et fortissimo, in lege. 
 
 592. Falsa demonstratio -non nocet. 
 
 593. Description in conveyance of joint-estates. 
 
 594. The elements of description. 
 
 595. Monuments Natural and artificial. 
 
 596. Artificial monuments in United States Surveys. 
 
 597. Non-navigable streams. 
 
 598. Navigable streams. 
 
 599. What is a navigable stream. 
 
 600. Ponds and lakes. 
 
 601. Highways. 
 
 602. Walls, fences, trees, etc. 
 
 603. Courses and distances. 
 
 604. Quantity. 
 
 605. Reference to other deeds, maps, etc., for description. 
 
 606. Appurtenants. 
 
 607. Necessity of use controls grant of easement as appurte- 
 
 nant. 
 
 608. Exception and reservation. 
 
 609. Habendum. 
 
 610. Reddendum. 
 
 611. Conditions. 
 
 SECTION III. 
 
 COVENANTS IN DEEDS. 
 
 SECTION 612. General statement. 
 
 613. Covenant enlarging the estate. 
 
 614. Covenant of seisin and right to convey. 
 
 615. What facts constitute a breach. 
 
 616. Covenant against incumbrances. 
 
 617. What circumstances constitute a breach of covenant 
 
 against incumbrances. 
 
 618. Covenant for quiet enjoyment. 
 
 619. Covenant of warranty. 
 
 620. The character of the covenant of warranty. 
 
 621. The feudal warranty. 
 XXX
 
 TABLE OF CONTENTS. 
 
 SECTION 622. Special limited covenants of title Exceptions to opera- 
 tion of covenants. 
 
 623. Implied covenants. 
 
 624. Who may maintain actions on covenants of warranty. 
 
 625. Damages, what may be recovered. 
 
 626. What covenants run with the land. 
 
 627. When breach of covenant works a forfeiture of estate. 
 
 CHAPTER XXIV. 
 
 TITLE BY DEVISE. 
 
 SECTION 628. Definition and historical outline. 
 
 629. By what law are devises governed. 
 
 630. The requisites of a valid will. 
 
 631. A sufficient writing. 
 
 632. What signing is necessary. 
 
 633. Proper attestation, what is. 
 
 634. Who are competent witnesses. 
 
 635. Who may prepare the will Holographs. 
 
 636. What property may be devised. 
 
 637. A competent testator, who is. 
 
 638. Who may be devisees What assent necessary. 
 
 639. Devisee incapacitated by murder of testator. 
 
 640. Devisee and devise must be clearly defined Parol evi- 
 
 dence. 
 
 641. Devisees of charitable uses. 
 
 642. Lapsed devises What becomes of them. 
 
 643. Revocation of wills. 
 
 644. Joint or mutual wills. 
 
 645. Revocation by destruction of will. 
 
 646. Effect of alterations of will after execution. 
 
 647. Revocation by marriage and issue. . 
 
 648. Revocation by alteration or exchange of property. 
 
 649. Revocation by subsequent will or codicil. 
 
 650. Defective will confirmed by codicil. 
 
 651. Contingent wills. 
 
 652. Probate of will. 
 
 653. Agreements as to testamentary disposition of property. 
 
 CHAPTER XXV. 
 
 REGISTRATION OF TITLES. 
 
 SECTION 654. History of legislation regarding. 
 655. Object of statutes providing for. 
 
 xxxi
 
 TABLE OF CONTENTS. 
 
 SECTION 656. Constitutionality of statutes concerning. 
 
 657. Registrars and examiners provided. 
 
 658. How land is brought under statute. 
 
 659. Proceedings before examiner. 
 
 660. Jurisdiction and power of the court. 
 
 661. Effect of registration. 
 
 662. Conveyances under the Torrens law. 
 
 663. Death of owner Transmission of land. 
 
 664. Judgments, liens and assessments against land. 
 
 665. Relief against arbitrary power of registrar. 
 
 666. Indemnity and procedure to recover. 
 
 667. Advantages and objections to title registration.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Abbott v. Abbott, 121. 
 
 Abbe v. Goodwin, 254. 
 
 Abbott v. Allen, 614. 
 
 Abbott v. Bayley, 558. 
 
 Abbott v. Essex Co., 397. 
 
 Abbott v. Godfrey, 22S. 
 
 Abbott v. Kasson, 258. 
 
 Abbott v..K. C, etc., R. R. Co., 445. 
 
 Abbott i'. Lindenbouer, 532. 
 
 Abbey v. Billup, 146. 
 
 Abeel v. Radcliffe, 374. 
 
 Abele v. McGuigan, 253. 
 
 Abercrombie v. Redpath, 149. 
 
 Abercrombie v. Riddle, 54. 
 
 Abercrombie v. Simmons, 591. 
 
 Abraham v. Twiggs, 398. 
 
 Abraham v. Wilkins, 633. 
 
 Accidental Death Ins. Co. v. Mackenzie, 
 
 157. 
 
 Acker v. Osborne, 302. 
 Acker v. Seekright, 634. 
 Ackland v. Lutley, 361. 
 Acree v. Stone, 221, 217. 
 Acton v. Dooley, 497. 
 Adair r. Lott, 75. 
 Adams v. Adams, 373, 377. 
 Adams v. Bank, 257. 
 Adams -v. Brereton, 61. 
 Adams v. Briggs, 4, 197. 
 Adams v. Brown, 267. 
 Adams v. Buchanan, 217. 
 Adams v. Bucklin, 460. 
 Adams v. Butts, 85. 
 Adams v. Carpenter, 494. 
 Adams v. Cowherd, 219. 
 Adams v. Cuddy, 582. 
 Adams v. City of Cohoes, 168. 
 Adams v. Essex, 272. 
 Adams v. Field, 633. 
 Adams v. Frye, 577. 
 Adams v. Fullam, 498. 
 Adams v. Goddard, 156. 
 Adams v. Greerard, 367. 
 Adams v. Guerard, 322. 
 Adams v. Hopkins, 195. 
 Adams v. Logan, 521. 
 Adams v. Palmer, 97. 
 Adams v. Parker, 250. 
 Adams v. Paynter. 273. 
 Adams v. Rockwell, 497, 510. 
 Adams v. Ross, 30, 302. 
 Adams v. Savage, 329, 354. 
 Adams v. Shirk, 157. 
 Adams v. Smith, 238. 
 Adams r. State. 160. 
 
 Adams v. Steer, 567. 
 
 Adams v. Stevens, 229, 590. 
 
 Adams v. Truman, 468. 
 
 Addison v. Dawson, 556. 
 
 Addison v. Hack, 467. 
 
 Adler v. Mendelsohn, 172. 
 
 Adsit v. Adsit, 118. 
 
 Advent v. Arrington, 494. 
 
 Acer v. Westcott. 486. 
 
 Aetna Ins. Co. v. Tyler, 220, 248. 
 
 Affolter v. May, 640. 
 
 Agate r. Lowenbein, 60. 
 
 Agric. Bk. v. Rice, 558. 
 
 Agricultural Assn. r. Brewster, 307. 
 
 Ahern v. Steele, 146. 
 
 Ahrend v. Odiorne, 217. 
 
 Aikers v. Ela, 403. 
 
 Aiken v. Gale, 285. 
 
 Aiken v. Perry, 14f>. 
 
 Aiken v. Smith, 136, 160. 
 
 Akers v. Clark, 292. 
 
 Aikin v. Kellogg, 118. 
 
 Aiken v. Perry, 142. 
 
 Alabama Conference v. Price, 640. 
 
 Ala. Gold Life Ins. Co. v. Oliver, 14SL 
 
 Albany Fire Ins. Co. v. Pay, 558. 
 
 Albert v. Albert, 310. 
 
 Albin v. Parmele, 321. 
 
 Albiton v. Bird, 471. 
 
 Alcott v. Tope, 647. 
 
 Alden v. Carleton, 190. 
 
 Alderman v. Neate, 136. 
 
 Alderson v. Alderson, 82. 
 
 Alderson v. Miller, 157. 
 
 Aldrich v. Green, 407. 
 
 Aldrich v. Parsons, 9. 
 
 Aldridge v. Dunn, 217, 218. 
 
 Alexander v. Alexander, 414, 195. 
 
 Alexander v. Carew, 559. 
 
 Alexander v. Fisher, 62. 
 
 Alexander v. Hill, 278. 
 
 Alexander v. Light, 177. 
 
 Alexander v. Lively, 596. 
 
 Alexander v. Pendleton, 504. 
 
 Alexander v. Polk, 572. 
 
 Alexander v. Schreiber, 623. 
 
 Alexander v. Tolleston Club, 432. 
 
 Alexander v. Warrance, 367. 
 
 Alexander v. Wheeler, 498, 497. 
 
 Alexander v. Zeip'fr, 160. 
 
 Alger v. Kennedy 151, 153. 
 
 All v. Goodson, J<5. 
 
 Allan v. Gourme, 438. 
 
 Allan v. Hall, 157. 
 
 Allan v. Taft, 605. 
 
 Allard v. Carledon, 197. 
 
 Allder v. Jones, 412, 418. 
 
 xxxiii
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Alleman r. Hawley, 190, 197. 
 
 Allen v. Allen, 100, 495. 
 
 Allen v. Austin, 98. 
 
 Allen v. Bates, 605. 
 
 Allen r. Bryan, 149. 
 
 Allen v. Carpenter, 59. 
 
 Allen v. Craft, 204, 321. 
 
 Allen f. De Croodt, 300. 
 
 Allen v. Everly, 243. 
 
 Allen v. Holten, 176, 501. 
 
 Allen r. Hooper, 558, 570. 
 
 Allen v. Taquish, 134, 156. 
 
 Allen r. Kennedy, 614, 624. 
 
 Allen v. Kingsbury, 595. 
 
 Allen v. Koepsel, 149. 
 
 Allen v. Lathrop, 236. 
 
 Allen v. Lee, 619. 
 
 Allen v. Libby, 195. 
 
 Allen v. Loring, 217. 
 
 Allen v. Mayfield, 301. 
 
 Allen v. Craig, 118. 
 
 Allen v. Scott, 606. 
 
 Allen r. Taylor, 617. 
 
 Allender's Lessee v. Sussan, 39, 399. 
 
 Allis v. Moore, 505. 
 
 Allison v. Allison, 631. 
 
 Allison v. Wilson Exrs., 405, 421. 
 
 Allore v. Jewell, 556. 
 
 Allsmiler v. Freutchenicht, 301. 
 
 Allyn v. Mather, 312. 
 
 Almy v. Daniels, 191. 
 
 Almy v. Hunt, 617. 
 
 Alperir v. Earle, 146. 
 
 Alston v. Alston, 260. 
 
 Althaw v. Anglesea, 329. 
 
 Althorf v. Wolfe, 66. 
 
 Altman v. Banholzer, 253. 
 
 Alvis v. Morrison, 260. 
 
 Alvis v. Alvis, 126. 
 
 Ambree v. Weishaar, 633. 
 
 Ambler v. Norton, 117. 
 
 Ambrose v. Ambrose, 374. 
 
 Ambrose v. Otty, 374. 
 
 Ambs v. Chicago, etc., R. R. Co., 592. 
 
 Amer. Nat. Bank v. Cruger, 122. 
 
 American Unitarian Ass'n v. Minot, 201. 
 
 Ames v. Ames, 195. 
 
 Ames v. Ashley, 373. 
 
 Ames v. Norman, 187. 
 
 Ames v. Shaw, 434. 
 
 Amherst -v. Lytton, 309. 
 
 Ammonette v. Black, 374. 
 
 Amory v. Fellowes, 634. 
 
 Amory v. Meredith, 413. 
 
 Amphlett v. Hibbard, 273. 
 
 Am. River Co. v. Amsden, 599. 
 
 Am. Tract. Soc. v. Atwater, 638. 
 
 Amyot r. Dwarris, 638. 
 
 Anderson v. Anderson, 576, 633. 
 
 Anderson r. Brewster, 163. 
 
 Anderson 7'. Brown, 631. 
 
 Anderson v. Carter, 518. 
 
 Anderson v. Chicago Ins. Co., 154. 
 
 Anderson v. Clears, 365. 
 
 Anderson v, Connor, 139. 
 
 Anderson v. Dodd, 493. 
 
 Anderson v. Donnell, 217. 
 
 Anderson v. Dugas, 585. 
 
 Anderson v. Fitzpatrick, 85. 
 
 Anderson v. Hays, 161. 
 
 xxxiv 
 
 Anderson v. Jackson, 399. 
 
 Anderson v. Knox, 610. 
 
 Anderson v. Lauterman, 246. 
 
 Anderson v. Nagle, 583. 
 
 Anderson v. Neff, 262. 
 
 Anderson v. Northrop, 187. 
 
 Anderson v. Parsons, 642. 
 
 Anderson v. Pilgram, 272, 276. 
 
 Anderson v. Prindle, 164. 
 
 Anderson v. Prym, 635. 
 
 Anderson v. Robbins, 149. 
 
 Anderson v. Spencer, 220. 
 
 Andrews v. Andrews, 64, 85. 
 
 Andrews v. Brewster, 653. 
 
 Andrew v. Brumfield, 408. 
 
 Andrews v. Fisk, 252, 279. 
 
 Andrews v. Gillespie, 590, 624. 
 
 Andrews v. Hobson, 373. 
 
 Andrews v. Jackson, 399. 
 
 Andrews v. Lathrop, 321. 
 
 Andrew v. Lyon, 509. 
 
 Andrews v. Mathews, 583. 
 
 Andrews v. McDaniel, 253. 
 
 Anderson v. Meredith, 190. 
 
 Andrews v. Rice, 399. 
 
 Andrews v. Roye, 298. 
 
 Andrews v. Section, 276. 
 
 Andrews v. Senter, 207. 
 
 Andrews v. Sparhawk, 383. 
 
 Andrews v. Spurr, 590. 
 
 Andrews v. Steele, 273. 
 
 Andrews v. Todd, 552. 
 
 Angell v. Rosenbury, 30. 
 
 Angier v. Schieffelin, 574. 
 
 Anglo-California Bank r. Cerf., 278. 
 
 Angler v. Shieffelin, 97. 
 
 Anglesea v. Church Wardens, 204. 
 
 Aner v. Brown, 421. 
 
 Anketel v. Converse, 218. 
 
 Ann Arbor Sav. Bank v. Webb, 242. 
 
 Annable v. Patch, 388. 
 
 Annan v. Baker, 532. 
 
 Annapolis R. R. v. Gault, 243. 
 
 Annis v. Wilson, 373. 
 
 Antenreith v. St. Louis, etc., R. R. Co., 
 
 434. 
 
 Anthes v. Schroeder, 509. 
 Anthony v. Anthony, 233, 301. 
 Anthony v. Kennard, 430, 443. 
 Anthony v. Lapham, 444. 
 Anthony v. Nye, 273. 
 Antoni v. Belknap, 916. 
 Apple v. Apple, 294. 
 Applegate v. Gracy, 580. 
 Appleton v. Ames, 139. 
 Appleton v. Rowley, 79. 
 Arbenz v. Exley & Co., 168. 
 Arcedechare v. Bowes, 266. 
 Archer v. Beihl, 492. 
 Archamban v. Green, 229. 
 Archer v. Ellison, 45. 
 Archer v. Jacobs, 296, 297. 
 Archibold v. Scully, 247. 
 Archer v. Jones, 53. 
 Ards v. Watkins, 149. 
 Ardes Oil Min. Co. 7'. N. A. Min Co. 
 
 616. 
 
 Arkwright v. Cell, 446. 
 Arlin v. Brown, 217. 
 Armington v. Armington, 479.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.'] 
 
 Armitage v. Winkliffe, 254. 
 
 Arms r. Lyman, 196. 
 
 Armstead v. Jones, 529. 
 
 Armstrong v. Armstrong, 399, 632. 
 
 Armstrong v. Cannady, 178. 
 
 Armstrong v. Cormody, 188. 
 
 Armstrong v. Darby, 612. 
 
 Armstrong v. Kent, 393. 
 
 Armstrong v. Moran, 642. 
 
 Armstrong v. Morrill, 496, 377. 
 
 Armstrong v. Ross, 218, 217. 
 
 Armstrongs. Warrington, 273,, 272. 
 
 Armstrong v. Wheeler, 139. 
 
 Armstrong v. Wilson, 75. 
 
 Arnold v. Arnold, 86, 294. 
 
 Arnold v. Bennett, 466. 
 
 Arnold v. Brown, 39. 
 
 Arnold v. Congreve, 399. 
 
 Arnold v. Foote, 444. 
 
 Arnold r. Green, 278. 
 
 Arnold v. Mattison, 233. 
 
 Arnot v. Post, 254. 
 
 Arnold v. Richmond Iron Works, 557. 
 
 Arnold v. Townsend, 556. 
 
 Arnold v. Woodward, 158, 497. 
 
 Arnold v. Wainwright, 185. 
 
 Arnold v. Waltz, 120: 
 
 Arnold v. Woodward, 157. 
 
 Arthur v. Weston, 562. 
 
 Arundell v. Phillpot, 418. 
 
 Ascarete v. Pfaff, 149. 
 
 Asch v. Asch, 118. 
 
 Ashbey v. Ashbey, 264. 
 
 Ashcroft v. E. R. Co., 430. 
 
 Asheville Division v. Aston, 30. 
 
 Ashland v. Griener, 205. 
 
 Ashley v. Warner, 163, 211. 
 
 Ashman v. Harrison, 421. 
 
 Ashmun v. Williams, 4C6. 
 
 Ashton v. Tugle, 123. 
 
 Ashton v. Shepherd, ,233. 
 
 Ashurst v. Givens, 341, 366. 
 
 Ashville Div. v. Aston, 562. 
 
 Ashwell v. Ayers, 572. 
 
 Askew v. Askew, 105. 
 
 Askew 1'. Daniel, 558. 
 
 Aspden v. Austin, 143. 
 
 Aspinwall v. Duckworth, 642. 
 
 Assay v. Hoover, 632. 
 
 Astor v. Hoyt, 139. 
 
 Astor v. Miller, 139, 626. 
 
 Aston v. Turner, 245. 
 
 Aston v. Wells, 584. 
 
 Astrom v. Hammond, 521. 
 
 Athens r. Nale, 620. 
 
 Atkins v. Atkins, 96. 
 
 Atkins v. Chilson, 68. 
 
 Atkins v. Kinnan, 530. 
 
 Atkins r. Sawyer, 239. 
 
 Atkins v. Yeomans, 111. 
 
 Atkinson v. Baker, 47. 
 
 Atkinson v. Dixon, 18. 
 
 Atkinson v. Hewett, 259. 
 
 Atkinson v. Jackson, 97. 
 
 Atkinson v. Orr, 460. 
 
 Atkinson v. Sinnott, 658. 
 
 Atlantic Dock Co. v. I.eavitt, 253, 572. 
 
 Atlantic S. D. & T. Co. v. Atl. City L. 
 
 Co., 11. 
 
 Atlas Bank v. Nahant Bank, 209. 
 Atlee v. Billiard, 124. 
 
 Atmore v. Walker, 301. 
 
 Attersoll v. Stevens, 66, 300. 
 
 Attaquin v. Fish, 68. 
 
 Attorney General v. Chambers, 489. 
 
 Atty. Gen. v. Gill, 397. 
 
 Atty. Gen. v. Jolly, 641. 
 
 Atty Gen. v. Merrimack, 509, 211: 
 
 Atty. Gen. v. Moore, 641. 
 
 Attorney General t r . Parmort, 238. 
 
 Atty. Gen. v. Trinity Church, 641. 
 
 Atty. Gen. v. Vigor, 241. 
 
 Atty. Gen. v. Williams, 433. 
 
 Atty. Gen. v. Winstanley, 276. 
 
 Atwater v. Bodfish, 428. 
 
 Atwood v. Atwood, 91. 
 
 Aubin v. Daly, 86. 
 
 Alldays r. Whittaker, 193. 
 
 Auding v. Davis, 247. 
 
 Auer v. Brown, 407. 
 
 Augustus v. Seabolt, 296, 471. 
 
 Aull v. Lee, 236. 
 
 Aultman & Taylor Co. v. Jenkins, 1JG. 
 
 Aultman, Miller & Co. v. Price, 122. 
 
 Auripl v. Mills, 143. 
 
 Austin v. Austin, 237. 
 
 Austin v. Burbank, 251, 274. 
 
 Austin v. Cambridgeport Parish, 201, 202. 
 
 Austin v. Coal Co., 131. 
 
 Austin v. Downer, 230. 
 
 Austin v. Hall, 178. 
 
 Austin v. Hudson, 66, 300. 
 
 Austin v. Lauderdale, 218. 
 
 Austin v. R. R., 195. 
 
 Austin v. Rutland, 186, 600. 
 
 Austin v. Sawyer, 506. 
 
 Austin v. Stanley, 123. 
 
 Austin v. Stevens, 53, f>6. 
 
 Antrim Iron Co. v. Anderson, 563. 
 
 Averill v. Guthrie, 262. 
 
 Averill v. Taylor, 136. 
 
 Avery v. Dougherty, 144. 
 
 Avery v. Everett, 640. 
 
 & C. R. R. Co., 
 
 Avery v. Judd, 243. 
 Avery v. N. Y. Cent. 
 
 433, 626. 
 
 Avery v. Stewart, 374. 
 Averett v. Ward, 273. 
 Avon Co. r. Andrews, 606. 
 Axman v. Smith, 277. 
 Aycock v. Kimbrough, 193. 
 Ayer v. Ayer, 360. 
 Ayer v. Emery, 201, 627. 
 Ayers v. Hays, 264. 
 Aymar v. Bill, 250. 
 Ayres v. Duprey, 583. 
 Ayres v. Falkland, 291. 
 Ayres v. Waite, 247. 
 
 Babat Co. v. Thorley, 152. 
 Babb v. Perley, 69. 
 Babbitt v. Day, 86. 
 Babbit v. Scroggin, 181. 
 Babcock ?'. Nuer, 498. 
 Babcock v. Wyman, 233. 
 Babcock v. Lisk, 236. 
 Babcock v. Scoville, 139. 
 Backhouse v. Bonomi, 448. 
 Backhouse v. Charlton, 216. 
 Backus v. McCoy, 614. 
 
 XXXV
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Bacon v. Bowdoin, 255, 606. 
 
 Bacon r. Cottrill, 269. 
 
 Bacon f. Kennedy, 278. 
 
 Bacon f. Lincoln, 615. 
 
 Bacon r. Mclntire, 247. 
 
 Bacon f. N. \V. Co., 270. 
 
 Bacon r. Smith, 68. 
 
 Bacon f. Taylor. 548. 
 
 Bader r. Leise, 497. 
 
 Badgett r. Keating, 361. 
 
 Badger f. Lloyd, 397. 
 
 Badger . Phinney, 556. 
 
 Badgley r. Bruce, 108. 
 
 Badlam ;. Tucker, 203. 
 
 Bacrnitz '. Beverly, 255. 
 
 Baggs f. Baggs, 389. 
 
 Baggett : Menx, 348. 
 
 Bagley f. Freeman, 139. 
 
 Bagley r. Morrill, 603. 
 
 Bagnall r. Davies, 433. 
 
 Bagnell v. Broderick, 519. 
 
 Bagot f. Bagot, 62. 
 
 Bailey r. Bailey, 233. 
 
 Bailey f. Butler, 272. 
 
 Bailey r. Carleton, 494. 
 
 Bailey f. Delaphine, 156. 
 
 Bailey f. Dolittle, 533. 
 
 Bailey v. Dunlap Co., 123, 124. 
 
 Bailey r. Gould, 250. 
 
 Bailey v. Mercantile Co., 121. 
 
 Bailey v. Myrick, 246, 285. 
 
 Bailey r. Richardson, 139, 242. 
 
 Bailey v. Sissan, 194. 
 
 Bailey v. Wells, 155, 156. 
 
 Bailey v. White, 603. 
 
 Bailey v. Winn, 368. 
 
 Bain r. Clark, 151. 
 
 Bain r. Stoob, 31. 
 
 Bainbridge r. Owen, 246. 
 
 Baine v. William, 290. 
 
 Baker v. Bishop Hill Colony, 238. 
 
 Baker r. Brown, 373. 
 
 Baker v. Crosby, 439. 
 
 Baker v. Dening, 571, 632. 
 
 Baker v. Fireman's Fund Ins. Co., 231. 
 
 Baker v. Flood, 268. 
 
 Baker v. Gostling, 149. 
 
 Baker r. Hall, 577. 
 
 Baker v. Haskell, 576, 578. 
 
 Baker v. Jordan, 2. 
 
 Baker r. Kenney, 169, 170. 
 
 Baker v. Leibert, 86. 
 
 Baker v. McClurg, 18. 
 
 Baker r. N. W. Guaranty Loan Co., 257. 
 
 Baker r. Oakwood, 80. 
 
 Baker v. Pratt, 156. 
 
 Baker r. Scott, 273, 321. 
 
 Baker r. Swan, 494. 
 
 Baker v. Talbon, 595. 
 
 Baker v. Terrell, 251. 
 
 Baker r. Thrasher. 231. 
 
 Baker r. Vining, 367. 
 
 Baker r. Whiting. 368. 
 
 Baker v. Wind, 229. 
 
 Bakewcll r. McKee, 494. 
 
 Baldwin r. Baldwin, 640. 
 
 Baldwin v. Humphrey, 373. 
 
 Baldwin v. Tenkins, 239. 
 
 Baldwin r. Porter, 377. 
 
 Baldwin v. Thomas, 122. 
 
 Baldwin v. Tucker, 401. 
 
 xxxvi 
 
 Baldwin v. Tuttle, 568. 
 
 Balen v. Mercier, 238. 
 
 Balfer v. Willigrod, 373. 
 
 Balfour v. Davis, 272. 
 
 Ball v. Ball, 79. 
 
 Ball v. Cullimore, 162. 
 
 Ball v. Deas, 176. 
 
 Ball v. Duntersville, 571, 509. 
 
 Ball v. Gaff, 366. 
 
 Ball v. Hill, 218. 
 
 Ball v. Palmer, 498. 
 
 Ball v. Wool folk, 83. 
 
 Ball v. Wyeth, 236. 
 
 Ballantine v. Poyner, 62. 
 
 Ballentine v. Wood, 302. 
 
 Ballard v. Ballard, 302. 
 
 Ballard v. Bowers, 87. 
 
 Ballard v. Tyson, 438. 
 
 Ballinger v. Clioultan, 269. 
 
 Ballou v. Ballou, 190. 
 
 Ballou z'. Carton, 156. 
 
 Baltimore v. Porter, 402. 
 
 Bait. & O. R. R. Co. v. Patterson, 45. - 
 
 Baltimore & Ohio Co. v. Winslow, 134, 
 
 135. 
 Baltimore Dental Ass'n v. Fuller, 168, 
 
 169. 
 
 Baltimore, etc., Co., v. White, 586. 
 Bancroft v. Ives, 647, 471. 
 Bancroft -v. Wardell, 166. 
 Bancroft v. White, 92. 
 Band v. Godson, 84. 
 Bane v. Bean, 434. 
 Bank v. Campbell, 583. 
 Bank v. Eastman, 518. 
 Bank v. Hillingsworth, 123. 
 Bank v. Kusworm, 257. 
 Bank v. Lee, 562. 
 Bank v. North, 290. 
 Bank v. Ogden, 601, 487. 
 Bank v. Ragsdale, 249. 
 Bank v. Rose, 256. 
 Bank v. Sargent, 257. 
 Bank v. Suttpn, 369. 
 Bank of Albion v. Burns, 286. 
 Bank of Augusta v. Earle, 453. 
 Bank of Buffalo v. Thompson, 236. 
 Bank of Commerce v. Owens, 87, 90. 
 Bank of Cumberland v. Bugbee, 572. 
 Bank of Napa v. Godfery, 272. 
 Bank of N. S. v. Houseman, 329, 54. 
 Bank of Ogdensburg v. Arnold, 245, 27?. 
 Bank of Penn. v. Wise, 149. 
 Bk. of S. C. v. Campbell, 286. 
 Bank of S. C. v. Mitchell, 290. 
 Bank of Springfield v. W. R. R. Co.. 
 
 368. 
 
 Bank of State v. S. C. Man. Co., 585. 
 Bank of Ukiah v. Rice, 373. 
 Bank of United States v. Dunseth, 113. 
 Bank of Washington v. Hupp, 245. 
 Banning v. Edes, 576. 
 Bannon v. Comegys, 195. 
 Banta v. Maxwell, 278. 
 Baptist Ass. v. Hart, 641. 
 Bar v. Galloway, 80. 
 Barber v. Pittsburg, etc., Ry. Co., 40. 
 Barber v. Schaffer, 494. 
 Barclay v. Goodloe's Excr., 377. 
 Barclay v. Kerr, 195. 
 Barcus v. Crump, 388.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Barden v. Northern Pac. Co., 5. 
 
 Barger v. Hoffs, 494. 
 
 Barker v. Barker, 126, 236. 
 
 Barker v. Bell, 583, 649. 
 
 Barker v. Blake, 109. 
 
 Barker v. Dayton, 127. 
 
 Barker v. Deignan, 495. 
 
 Barkley v. Dosser, 381. 
 
 Barker v. Flood, 242. 
 
 Barker v. Greenwood, 341. 
 
 Barker v. Jones, 187. 
 
 Barks v. Mitchell, 504. 
 
 Barker v. Salmon, 516. 
 
 Barker v. Southerland, 310. 
 
 Barkley v. Tieleke, 2. 
 
 Barlow v. Cooper, 251. 
 
 Barlow v. McKinley, 617. 
 
 Barlow v. Rhodes, 428, 427. 
 
 Barlow v. St. Nicholas Bank, 617. 
 
 Barlow v. Wainwright, 134. 
 
 Barnard v. Edwards, 101. 
 
 Barnard v. Poor, 66. 
 
 Barnard v. Peterson, 269. 
 
 Barnard's Heirs v. Ashley's Heirs, 522. 
 
 Barnes v. Addy, 368. 
 
 Barnes v. Boardman, 31, 253. 
 
 Barnes v. Dow, 372. 
 
 Barnes v. Lloyd, 431. 
 
 Barnes v. Lynch, 189. 
 
 Barnes v. Roper, 91. 
 
 Barnes v. Syester, 633. 
 
 Barnes v. Taylor, 368. 
 
 Barnet v. Barnet, 202. 
 
 Barnett v. Bamber, 368. 
 
 Barnett v. Denniston, 242. 
 
 Barnett v. Dougherty, 368. 
 
 Barnes v. Lee, 240. 
 
 Barnett v. Wilson, 265. 
 
 Barney v. Arnold, 392. 
 
 Barney v. Frowner, 110. 
 
 Barney v. Keokuk, 599. 
 
 Barney v. Leeds, 122. 
 
 Barney v. McCarty, 584. 
 
 Barney v. Myers, 285. 
 
 Barney v. Pike, 184, 185. 
 
 Barneycastle v. Walker, 144. 
 
 Barnitz v. Beverly, 225. 
 
 Barnsball v. Boley, 134. 
 
 Barnum v. Phenix, 253. 
 
 Bar 
 Bar 
 Bar 
 Bar 
 Bar 
 Bar 
 
 v. Butin, 635. 
 v. Flynn, 439. 
 v. Gratz, 493, 491. 
 v. Hatch, 417. 
 v. Schroeder, 561. 
 v. Van Alstine, 273, 255. 
 
 Bar 
 
 ett v. 
 
 Armstrong. 283. 
 
 Bar 
 
 en v. 
 
 Babcock, 191. 
 
 Bar 
 
 ett v. 
 
 Bamber, 368. 
 
 Bar 
 
 ett v. 
 
 Failing, 98. 
 
 Bar 
 
 ett v. 
 
 French, 541. 
 
 Bar 
 
 ell v. 
 
 Joy, 373. 
 
 Bar 
 
 ett v. 
 
 Nielson, 246. 
 
 Bar 
 
 ett v. 
 
 Wright, 640. 
 
 Bar 
 
 icklon 
 
 v. Stewart, 631. 
 
 Bar 
 
 on v. 
 
 Martin, 247. 
 
 Bar 
 
 on v. 
 
 Paulling, 246. 
 
 Bar 
 
 on v. 
 
 Richards, 626. 
 
 Bar 
 
 uss v. 
 
 Madan. 202. 
 
 Bar 
 
 y v. Guild, 272. 619. 
 
 Barson v . 
 
 Mulligan, 292. 
 
 Barteau v. 
 
 West, 441. 
 
 Barthelomew v. Candee, 614. 
 
 Bartholomew v. Edwards, 496. 
 
 Bartlett v. Bartlett, 329. 
 
 Bartlett v. Drake, 571. 
 
 Bartlett v. Drew, 365. 
 
 Bartlett v. Prescott, 430. 
 
 Bartlett v. Sanborn, 272. 
 
 Bartlett v. Secoe, 498, 497. 
 
 Bartlett v. Tinsley, 91. 
 
 Barton v. May, 266. 
 
 Barton v. Smith, 166. 
 
 Barton v. Tuttle, 640. 
 
 Barwick v. Miller, 482. 
 
 Bascom v. Albertson, 629, 641. 
 
 Basford v. Pearson, 553, 615. 
 
 Baskin v. Baskin, 633. 
 
 Bason v. Henkle, 68. 
 
 Bass v. Scott, 347. 
 
 Bassett v. Bassett, 554, 565. 
 
 Bassatt v. Gallagher, 234. 
 
 Bassett v. Brown, 560. 
 
 Bassatt v. Hawk, 322. 
 
 Bassett v. Shoemaker, 368. 
 
 Bassett v. Wood, 586. 
 
 Batchelder v. Dean, 130. 
 
 Batchelder v. Sturgis, 617, 625. 
 
 Bates v. Bates, 86, 121. 
 
 Bates v. Boston, 572. 
 
 Bates v. Foster, 623, 622. 
 
 Bates v. Gillett, 301. 
 
 Bates v. Hurd, 374. 
 
 Bates v. Miller, 273. 
 
 Bates v. Norcoss, 582. 
 
 Bates v. Tymanson, 595. 
 
 Bath v. Valdez, 497. 498. 
 
 Batstone v. Salter, 367. 
 
 Battey v. Hopkins, 356. 
 
 Battin.z/. Woods, 187. 
 
 Batting v. Martin, 167. 
 
 Battle v. Petway, 382. 
 
 Battorf v. Conner, 221. 
 
 Batty v. Snook, 234. 
 
 Bannister v. Demuth. 275. 
 
 Baum v. Grisby, 218. 
 
 Baum v. Tompkin, 236, 276. 
 
 Baumgardner v. Allen, 253. 
 
 Bauskitt v. Keitt, 645. 
 
 Bausman v. Kelly, 278. 
 
 Bautell v. Gouge, 88. 
 
 Baxter v. Arnold, 433. 
 
 Baxter v. Bradbury, 471, 621. 
 
 Baxter v. Child, 234. 
 
 Baxter i>. Dyer, 239. 
 
 Baxter v. Mclntire, 236. 
 
 Bay v. Williams, 253. 
 
 Bayer v. Cocker!!!, 348. 
 
 Bayer v. Schultze, 619. 
 
 Baykin t'. Rain, 84. 
 
 Bayler v. Commonwealth, 238, 564. 
 
 Bayles v. Huntell, 258. 
 
 Bayless T'. Rupert, 596. 
 
 Bayley v. Greenleaf, 217, 583. 
 
 Bayley v. Lawrence, 152. 
 
 Baylis T'. Young, 582. 
 
 Baynard v. Woolley, 213. 
 
 Bayter v. Mclntire, 236. 
 
 Beach v. Beach, 380. 
 
 Beach v. Dyer, 368. 
 
 Beach v. Gaylord, 445. 
 
 Beach v. Miller, 617. 
 
 xxxvii
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Beahan :. Sapleton, 595. 
 Beal v. Boston, etc., Cor. Co., 139, 156. 
 Beal v. Congdon, 264. 
 Beal f. Warren, 558, 556. 
 Bealey r. Shaw, 444. 
 Beall v. Davenport, 157. 
 Bealor :. Hahn, 84. 
 Beals v. Cobb, 2C6. 
 Heals v. Storm, 637. 
 Bearnan r. Whitney, 574. 
 Bean v. A. & St. L. R. R., 248. 
 Bean v. Boothby, 558, 242. 
 Bean r. Dickerson, 147. 
 Bean v. French, 608. 
 Bean r. Kenmine, 562. 
 Bean r. Mayo, 617. 
 -Beane v. Yerby, 633. 
 Bear v. Snyder, 109. 
 Bear r. Stahl, 86. 
 Bear v. Whistler, 217. 
 Bear Valley Coal Co. v. Dewart, 493. 
 Beard v. Blum, 126. 
 Beard v. Fitzgerald, 284, 285. 
 Beard v. Johnson, 123. 
 Beard v. Knox, 85. 
 Beard v. Murphy, 448. 
 Beard v. Ryan, 498, 504. 
 Beard v. Westcott, 399. 
 Beardman v. Wilson, 139. 
 Beardslee v. Beardslee, 99. 
 Beardslee v. Knight, 199, 572. 
 Beatty v. Clymer, 53, 505. 
 Beatty v. Gregory, 467. 
 Beatty v. Mason, 497. 
 Beatty v. Richardson, 98. 
 Beaumont v. Keim, 649. 
 Beavan v. Earl of Oxford, 583. 
 Beaver v. Beaver, 374. 
 Beavers v. Smith, 113. 
 Beck v. Metz, 471. 
 Beck v. Rebow, 16. 
 Becker v. Hibbard, 497. 
 Becker v. Howard, 231. 
 Beckett v. Vanvalkenburg, 505. 
 Beckford v. Beckford, 367. 
 Becklenberg v. Becklenberg, 71. 
 Beckley v. Leffingwell, 310. 
 Beckman v. Saratoga, 454. 
 Beckwith v. Beckwith, 92. 
 Beckwith v. Frisbie, 560. 
 Beddoe v. Wadsworth, 614, 624. 
 Bedford v. Graves, 367. 
 Bedford v. Jenkins, 322. 
 Bedford v. McElheron, 158. 
 Bedford v. Terhune, 165, 139. 
 Bedinger v. Wharton, 556. 
 Beebe v. Louisville R. R. Co., 195. 
 Beebe v. Lyle, 87. 
 Beebe v. McKenzie, 631. 
 Beecher v. Hicks. 365. 
 Beecher v. Parmelee, 173. 
 Beeckman v. Butler. 242. 
 Beedy v. Finney, 126. 
 Beekman'r. Frost, 584. 
 Beeler v. Mercantile Co., 18. 
 Beem v. Lockhart, 685. 
 Beeman v. Kitzman, 107, 100. 
 Beers v. Beers, 66. 
 Beers v. St. John, 66. 
 Bezein v. Brehm, 264. 
 Behm v. Molly, 367. 
 
 xxxviii 
 
 Behymer v. Odell, 608. 
 
 Beyins Ex'rs v. Von Ahlefeldt, 84. 
 
 Beiser v. Beiser, 577. 
 
 Belcher v. Weaver, 97. 
 
 Belcher Land & Mtg. Co. v Norris, 263. 
 
 Belden v. Meeker, '261, 582. 
 
 Belden v. Young, 122. 
 
 Belding r. Manley, 251. 
 
 Belknap v. Belknap, 191. 
 
 Belknap v. Dennison, 242. 
 
 Belknap v. Trimble, 197. 
 
 Bell v. Bosley, 126. 
 
 Bell v. Bruhn, 168. 
 
 Bell v. Denson, 504, 495. 
 
 Bell v. Ellis, 166. 
 
 Bell v. Fleming, 261, 236. 
 
 Bell v. Fowler, 640. 
 
 Bell v. Keefe, 572. 
 
 Bell v. Mayor, 54, 258. 
 
 Bell v. Nealy, 98. 
 
 Bell v. New York, 118. 
 
 Bell v. Pelt, 228. 
 
 Bell v. Shrock, 274. 
 
 Bell v. Twilight, 582. 
 
 Bell v. Wise. 125. 
 
 Bell i: Woodward, 242, 592. 
 
 Bell Co. v. Alexander, 641. 
 
 Bellamey v. Brickenden, 248. 
 
 Bellas v. McCarthy, 35, 585. 
 
 Bellows v. Jewell, 494. 
 
 Belmont *. Coman, 253, 619. 
 
 Beiser v. Moore, 429. 
 
 Belton v. Avery, 230. 
 
 Bemis v. Call, 257. 
 
 Bemis v. Wilder, 148. 
 
 Benbow v. Townsend, 367. 
 
 Bender v. Terw'lliger, 195. 
 
 Benedict v. Marsh, 13, 170. 
 
 Benfield v. Benfield, 76. 
 
 Benham v. Rowe, 269. 
 
 Benjamin v. Elmira, etc., R. R., 238. 
 
 Benlow v. Robbins, 429. 
 
 Bennett v. Austin, 368. 
 
 Bennett v. Bittle, 153. 
 
 Bennett v. Calhoun Ass'n, 273. 
 
 Bennett v. Child, 181. 
 
 Bennett v. Clemence, 186, 495. 
 
 Bennett r. Davis. 79. 
 
 Bennett r. Dollar Sav. Bk., 368. 
 
 Benney ?. Foss. 66. 
 
 Bennett v. Holt, 231. 
 
 Bennett v. Hudson. 126. 
 
 Bennett v. Peirce, 186, 372. 
 
 Bennett v. Robin=on. 172. 
 
 Bennett v. Washington Cemetery 204. 
 
 Bennett v. Williams, 559. 
 
 Bennock v. Whipple, 163, 229. 
 
 Bensell v. Chancellor. 556. 
 
 Bensley v. Atwill, 578. 
 
 Benson v. Boiler, 139. 
 
 Benson v. Stewart, 498. 
 
 Bent v. St. Vrain, 482. 
 
 Bentley v. Callahan, 186. 
 
 Bently v. Long, 301. 
 
 Bentley v. O'Brine, 233. 
 
 Benton Co. v. Czarlinski, 236, 247. 
 
 Benton Land Co. v. Zeitner, 236, 243. 
 
 Berg v. Anderson, 393. 
 
 Berg v. Shipley, 586. 
 
 Bergen v. Bennett, 410, 569. 
 
 Bergen v. Meehan, 57, 62.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Berman v. Beecher, 493. 
 
 Bernard v. Patterson, 246. 
 
 Bernard v. Jennison, 246. 
 
 Bernheimer v. Adams, 18. 
 
 Berm v. Boyer, 134. 
 
 Bernos v. Cowpa, 430, 452. 
 
 Bernstein v. Humes, 559. 
 
 Berly v. Taylor, 373. 
 
 Berridge v. Glassey, 132. 
 
 Berrien v. McLane, 376. 
 
 Berry I'. Anderson, 576. 
 
 Berry v. Billings, 609. 
 
 Berry v. Lewis, 307. 
 
 Berry v. Mutual Ins. Co., 214. 
 
 Berry v. Skinner, 277. 
 
 Berry v. Snyder, 599. 
 
 Berry v. Taunton, 141. 
 
 Berry v. Todd, 450. 
 
 Berry v. Whidden, 191. 
 
 Berry v. Williamson, 322. 
 
 Berryman v. Schumacher, 201. 
 
 Berthold v. Fox, 243. 
 
 Bertie v. Abingdon, 38. 
 
 Beshore v. Lyle, 214. 
 
 Besland v. Hewitt, 217. 
 
 Resser v. Hawthorne, 243. 
 
 Best v. Best, 204, 406. 
 
 Bessell v. Landburg, 164. 
 
 Best v. Nagle, 205. 
 
 Best v. Sanders, 195. 
 
 Bethlehem v. Annis, 209. 
 
 Bethlehem v. Annis, 237. 
 
 Bethlehem Borough v. Perseverence Fire 
 
 Co., 340. 
 
 Betsey v. Lorance, 559. 
 Betts v. Sims, 126. 
 Bettison v. Budd, 157. 
 Betz v. Verner, 13. 
 Beuneson v. Savage, 277. 
 Bevans v. Briscoe, 59. 
 Bevier v. Schvonmaker, 281. 
 Beyant v. Russell, 373. 
 Bibb v. Baker, 260. 
 Bibb v. Reid, 579. 
 Bickett v. Morris, 447. 
 Bickford v. Daniels, 229. 
 Bickford v. Page, 624. 
 Biddle v. Hussman, 152. 
 Bidleman v. Brooks, 532. 
 Bigelow v. Bush, 273. 
 Bisrelow v. Foss, 510. 
 Bigelow v. Hubbard, 617. 
 Bieelow v. Jones. 186. 
 Bieelow v. Littlefield, 196. 
 BiVelow v. Strinsrfellow, 273. 
 Bitrelow v. Topliff, 228. 
 Bigelow v. Wilson, 252, 239. 
 Biggars v. Bird, 233. 
 Biggins v. Bradley, 619. 
 Biggins v. Lambert, 418, 412. 
 Bigler v. Waller, 278. 
 Bieley v. Watson, 44. 
 Biiam v. Bichford, 190. 
 Billard v. Child, 614. 
 Billings v. Sprague, 286. 
 Billings v. Taylor, 105, 64. 
 Billington v. Welsh, 586. 
 Bingham v. Weiderwax, 625. 
 Bingham v. Weller, 321, 79. 
 Binkley v. Forkner, 13, 15. 
 Binswangcr v. Hinnenger, 178, 191. 
 
 Birch v. Sherratt, 464. 
 
 Birch v. Wright, 247. 
 
 Bircher v. Parker, 170. 
 
 Bird v. Bird, 191. 
 
 Bird v. Decker, 239. 
 
 Bird v. Wilkinson, 233. 
 
 Birdsall v. Philips, 168. 
 
 Birmingham v. Rogers, 160. 
 
 Birney v. Dann, 614. 
 
 Birnie v. Main, 236, 582. 
 
 Biscol v. Biscol, 399. 
 
 Bishop v. Bishop, 14. 
 
 Bishop v. Chase, 249. 
 
 Bishop v. McClelland's Exrs., 179, 
 
 Bishop v. Schneider, 581, 584. 
 
 Bisland v. Hewett, 108. 
 
 Bissell v. Marineco, 273. 
 
 Bissell v. N. Y. Cent. R. R., 601. 
 
 Bitner v. Bitner, 637. 
 
 Bitter v. Seathoff, 497. 
 
 Bittinger v. Baker, 59. 
 
 Bixler v. Sayler, 623. 
 
 Bizzell v. Nix, 218. 
 
 Black v. Black's Adm'r, 127, 197. 
 
 Black v. Curran, 121. 
 
 Black v. Gregg, 228. 
 
 Black v. Golden, 160. 
 
 Black v. Lamb, 576. 
 
 Black v. Shreve, 578, 579. 
 
 Black v. Webb, 45, 211. 
 
 Black v. Williams, 27, 393. 
 
 Blackburn v. Gregson, 217. 
 
 Blackburn r. Warwick, 234. 
 
 Blackford v. Almstead, 553. 
 
 Blackmore v. Boardman, 147. 
 
 Blackstone Band v. Davis, 203, 204. 
 
 Blackwell v. Broughton, 122. 
 
 Blackwood v. Van Fleet, 243. 
 
 Blade v. Sanborn, 274. 
 
 Blapge v. Miles, 413, 647. 
 
 Blain v. Stewart, 574. 
 
 Blain v. Stoab, 34. 
 
 Blair v. Blair, 283. 
 
 Blair v. Harris, 236. 
 
 Blair v. Johnson, 491, -498. 
 
 Blair v. Rivard, 275. 
 
 Blair v. Smith, 507. 
 
 Blair v. Ward. 582. 
 
 Blair v. White, 251. 
 
 Blaisdell v. Railroad, 465, 468. 
 
 Blaisdell v. Stephens, 435. 
 
 Blake v. Fash, 518, 576. 
 
 Blake v. Graham, 582. 
 
 Blake v. Irwin, 420. 
 
 Blake v. Ravons, 146. 
 
 Blake v. Sanderson, 140. 
 
 Blake v. Tucker, 512. 
 
 Blake v. Williams, 251. 
 
 Blakely v. Colder, 195. 
 
 Blakeney v. Ferguson, 96. 
 
 Blanchard v. Blanchard, 297. 
 
 Blanchard v. Blood, 72. 
 
 Blanchard v. Brooks, 512, 619. 
 
 Blanchard v. Ellis, 514, 625. 
 
 Rlanchard v. Evans, 509. 
 
 Rlanchard v. Kenton, 233. 
 
 Rlanchard v. Morey, 202. 
 
 Rlanchard v. Porter, 599. 
 
 Rlanchard v. Sheldon, 373. 
 
 RHnche v. Rogers, 15. 
 
 Bland v. Windsor, 512. 
 
 xxxix
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Blaney t>. Hanks, 518. 
 
 Plancy f. Pearce, 239. 
 
 Itlancy r. Rice, 603. 
 
 Blankcnhprn r. Lennox, 186. 
 
 Blankenpicker v. Anderson's Heirs, 521. 
 
 Blankenship r . Stout, 557. 
 
 Blankhead v. Owen, 217. 
 
 Blantin t'. \\'hittaker, 157. 
 
 Blauvelt v. Ackerman, 368. 
 
 Blauvelt v. Van Winkle, 463. 
 
 Bledsoe's Ex'r v. Bledsoe, 637. 
 
 Bledsoe v. Beiler, 625. 
 
 Bleccker v. Smith, 148. 
 
 Bleeker v. Graham, 281. 
 
 Blethers v. Dwindal, 272. 
 
 Blevins v. Rogers, 219. 
 
 Blight's Lessee t>. Rochester, 157. 
 
 Blinton v. Hope Ins. Co., 248. 
 
 Bliss v. Am. Bible Soc., 641. 
 
 Bliss l'. Johnson, 504. 
 
 I'.liss r. Kennedy, 606. 
 
 Bliss r. Matteson, 368. 
 
 Block v. Pfaff, 593, 603. 
 
 Blockley v. Fowler, 279. 
 
 Blodgett v. Hildreth, 622. 
 
 Blodgett v. Moore, 647. 
 
 Blood v. Blood, 76, 581. 
 
 Blood v. Goodrich, 569. 
 
 Blood v. Wood, 495. 
 
 Bloodgood i'. Mohawk Railroad, 454. 
 
 Bloome v. Waldron, 407, 411. 
 
 Bloomer r. Burk, 235. 
 
 Bloomingdale v. Bowman, 250. 
 
 Blow v. Vaughn, 590. 
 
 Blume v. Vaughn, 590. 
 
 Blume T. Kramer, 276. 
 
 Blunt v. Syms, 244. 
 
 Blythe v. Dargin, 558. 
 
 Board v. Nelson, 647. 
 
 Board, etc., v. Trustees, 202, 627. 
 
 Boardman v. Dean, 565. 
 
 Boardman v. Osborn, 152, 154. 
 
 Boardman v. Reed, 552, 596. 
 
 Boardman v. Wilson, 139. 
 
 Boarman v. Catlett, 255. 
 
 Bobb v. Bobb, 509. 
 
 Bobbles v. Munnerlyn, 273. 
 
 Bodine Adm'r v. Arthur, 562. 
 
 Bodwell v. Nutter, 367. 
 
 Bodwell v. Webster, 229. 
 
 Boester v. Bryne, 275. 
 
 Bogan v. Frisby, 581. 
 
 Bogardus r. Trinity Church, 186, 561. 
 
 Bogey v. Shoab, 512. 
 
 Bogey i\ Shute, 273. 
 
 Boggs v. Merced Co., 510, 579. 
 
 Bope r. Varner, 585. 
 
 Bogie v. Rutledge, 94. 
 
 Boelino v. Giorgetti, 489. 
 
 Bohannon v. Combs, 97. 
 
 Bohannon v. Wolcot, 645. 
 
 Bohier v. Lange, 605. 
 
 Bohlen v. Arthurs, 191. 
 
 Bohn v. Davis, 279. 
 
 Boho v. Richmond, 497. 
 
 Boies v. Gardner, 260. 
 
 Boland v. Nichols, 118. 
 
 Bold v. O'Brien, 146. 
 
 Boldry v. Parris, 633. 
 
 Bole v. Todd, 430. 
 
 Boley v. Barntis, 191. 
 
 Xl 
 
 Boll v. Woolfolk, 31. 
 
 Bolles v. Carli, 253. 
 
 Bolles v. Duff, 246, 272. 
 
 Bolles v. Smith, 642. 
 
 Bolles v. State Trust Co., 361. 
 
 Bolles v. Wade, 257. 
 
 Bellinger Co. v. McDowell, 590. 
 
 Bolton v. Carlisle, 554. 
 
 Bolster v. Cushman, 92. 
 
 Bolten v. Landers, 163. 
 
 Bolton v. Lann, 595. 
 
 Bond v. Bond, 557. 
 
 Bond v. Bunting, 373. 
 
 Bond r. Coke, 606. 
 
 Bond v. Fay, 590, 592. 
 
 Bond v. Montgomery, 121. 
 
 Bond Ass'n v. Klee, 257, 
 
 Bonds v. Smith, 157. 
 
 Bonneck v. Kennebeck Purchase, 195. 
 
 Bonnecaze v. Beer, 151. 
 
 Bonnell v. Smith, 126. 
 
 Bonner v. Bonner, 193. 
 
 Bonner v. Peterson, 90. 
 
 Bonson v. Williams, 213. 
 
 Boob v. Wolff, 233. 
 
 Boody v. Davis, 233. 
 
 Boody v. McKenney, 557. 
 
 Boogher v. Neece, 492. 
 
 Book v. Dessley, 233. 
 
 Booker v. Crocker, 247. 
 
 Booker v. Stevender, 516. 
 
 Bool v. Mix, 556. 
 
 Boond Sup. Warren Co. v. Gans, 57. 
 
 Boone v. Boone, 118. 
 
 Boone v. Bank, 361. 
 
 Boone v. Childe, 376, 368. 
 
 Boone v. Clark, 253, 256. 
 
 Boone v. Moore, 562. 
 
 Boone v. Stover, 17. 
 
 Booth v. Booth, 276. 
 
 Booth r. Patte, 592. 
 
 Booth v. Starr, 616. ' 
 
 Booth v. Terrell, 296. 
 
 Boothby v. Dathaway, 614. 
 
 Boothe v. Best, 497. 
 
 Boothroyd v. Endes, 562. 
 
 Boots v. Gooch, 70. 
 
 Bopp v. Fox, 185. 
 
 Borah v. Archers, 197. 
 
 Borehan v. Byrne, 126. 
 
 Borggard v. Gale, 134, 146. 
 
 Borrochlow v. Stewart, 633. 
 
 Borror ?>. Carrier, 217. 
 
 Boskowitz 7'. Davis, 367. 
 
 Bosley v. Bosley, 648. 
 
 Bosley v. McGough, 637. 
 
 Bosley v. Schanner, 560. 
 
 Bosquett v. Hall, 122. 
 
 Bosse v. Gallagher, 272. 
 
 Bosse v. Johnson, 239. 
 
 Bossier v. Herwig, 177, 187. 
 
 Boston v. Binney, 157, 163. 
 
 Boston v. Richardson, 602, 598. 
 
 Boston v. Worthington, 624. 
 
 Boston & Lowell R. R. v. Salem & L. R. 
 
 Co., 456. 
 
 Boston, etc., Trust Co. v. Mixter, 371. 
 Boston Bk. v. Reed, 245. 
 Boston Iron Co. i>. King, 246. 
 Boston Water Power Co. v. Boston & 
 
 W. R. R. Co., 456.
 
 TABLE OP CASES CITED. 
 
 [References are to Sections.] 
 
 Bostwick v. Leach, 563. 
 
 Bostwick v. Williams, 619, 620. 
 
 Boswell v. Goodwin, 263. 
 
 Bosworth v. City of Mt. Sterling, 497. 
 
 Bosworth v. Danzien, 603. 
 
 Botsford v. Burr, 367. 
 
 Botsford v. Townsend, 367. 
 
 Bott v. Burnell, 529. 
 
 Bottomly v. Spencer, 97, 117. 
 
 Bottorff v. Lewis, 320. 
 
 Boudinot v. Bradford, 649. 
 
 Bougher v. Merryman, 231. 
 
 Bounds v. Little, 188. 
 
 Bourland v. Kipp, 250. 
 
 Bourn v. Gibbs, 298. 
 
 Bourne v. Bourne, 239. 
 
 Bourquin v. Bourquin, 380. 
 
 Bousey v. Amee, 277. 
 
 Bowden v. Parrish, 574. 
 
 Bowditch v. Andrew, 382. 
 
 Bowditch v. Bannelos, 377. 
 
 Bowditch Ins. Co. v. Winslow, 248. 
 
 Bowen v. Allen, 640. 
 
 Bowen r. Bowen, 207. 
 
 Bowen v. Brockenbrough, 87. 
 
 Bowen r. Brosran, 54. 
 
 Bowen v. Chambers, 572. 
 
 Bowen v. Chase, 362. 
 
 Bowen v. Guild, 495. 
 
 Bowen v. Swander, 179, 191. 
 
 Bowen's Adm'r v. Bowen's Adm'r, 408. 
 
 Bowers v. Johnson, 250. 
 
 Bowers v. Keisecker, 87. 
 
 Bowers v. Oysters, 215. 
 
 Bowers v. Porter, 321. 
 
 Bowie v. Berry, 87, 105. 
 
 Bowles v. Rogers, 217. 
 
 Bo-.vln v. Lament, 631. 
 
 Powman v. Lobe, 298. 
 
 Bowman v. Manter, 257. 
 
 Bowman v. Norton, 126. 
 
 Bowman v. Watson, 127. 
 
 Bown v. Combs, 247. 
 
 Bown v. Leete, 493. 
 
 Bown v. Peoples Ins. Co., 248. 
 
 Boxheimer v. Gunn, 256. 
 
 Boyce v. Coster, 185. 
 
 Boyce v. Owens, 558. 
 
 Boyce v. Stanton, 368. 
 
 Boyd v. Allen, 266. 
 
 Boyd v. Baker, 236. 
 
 Boyd v. Barnett, 126. 
 
 Boyd v. Beck, 247. 
 
 Boyd v. Brincken, 368. 
 
 Boyd v. Carlton, 105. 
 
 Boyd v. Conklin, 445. 
 
 Boyd v. England, 361. 
 
 Boyd v. McLean, 329, 367. 
 
 Boyer v. Amet, 620, 625. 
 
 Boyers v. Elliott, 185. 
 
 Boyers v. Newbank, 107. 
 
 Boyken v. Boyken, 301. 
 
 Boykin v. Ancrum, 322. 
 
 Boylan v. Deinzer, 204. 
 
 Boyle v. Teller, 156. 
 
 Boylston Ins. Co. v. Davis, 178, 693. 
 
 Boynton v. Ashbromer, 494. 
 
 Boynton v. Longlcy, 447, 445. 
 
 Boynton v. Peterborough, 471. 
 
 Boynton v. Roes, 565. 
 
 Bozarth v. Largent, 278, 83. 
 
 Bozarth v. Sanders, 275. 
 
 Bozeman v. Browning, 556. 
 
 Brabham v. Crosland, 640. 
 
 Brace v. Marlborough, 262. 
 
 Bracken v. Jones, 496, 493. 
 
 Brackett v. Baum, 273. 
 
 Bracket! v. Goddard, 2, 563. 
 
 Brackett v. Norcross, 186. 
 
 Brackett v. Petitioner, 494. 
 
 Brackett v. Ridlon, 582. 
 
 Bradfield v. McCormack, 572. 
 
 Bradford v. Cressey, 597, 602. 
 
 Bradford v. Foley, 308, 309. 
 
 Bradford v. Marvin, 217. 
 
 Bradford v. Randall, 572. 
 
 Bradford v. Street, 408. 
 
 Bradhurst v. Field, 118. 
 
 Bradish v. Gibbs, 403. 
 
 Bradish v. Schenk, 168. 
 
 Bradish v. Yocum, 590. 
 
 Bradshaw v. Callaghan, 195. 
 
 Bradshaw v, Crosby, 625. 
 
 Bradshaw v. Halpin, 96. 
 
 Bradshaw v. Outram, 273. 
 
 Bradley v. Bosley, 221. 
 
 Bradley v. Bradley, 471. 
 
 Bradley v. Chester Val. R. R., 275, 278. 
 
 Bradley v. De Goiconria, 153. 
 
 Bradley v. Fuller, 243. 
 
 Bradley v. George, 285. 
 
 Bradley v. Lightcap, 240, 243. 
 
 Bradley v. Piexoto, 33. 
 
 Bradley v. Rice, 600. 
 
 Bradley v. Tittabawassee Boom Co., 608. 
 
 Bradley v. West, 493. 
 
 Bradley v. Westcott, 406. 
 
 Bradley v. Wilson, 595. 
 
 Bradley *& Co. v. Peabody Coal Co., 292. 
 
 Bradner v. Faulkner, 59. 
 
 Bradstreet v. Clark, 150, 202. 
 
 Bradstreet v. Dunham, 601. 
 
 Bradstreet v. Huntington, 497. 
 
 Brady v. Peiper, 150. 
 
 Brady v. Waldron, 265. 
 
 Bragg v. Geddis, 329. 
 
 Bragg v. Lyon, 195. 
 
 Bragg v. Paulk, 374. 
 
 Brainard v. Boston, etc., Co., 601. 
 
 Brainard v. Cooper, 275. 
 
 Braman v. Bingham, 579. 
 
 Braman v. Dowse, 253. 
 
 Bramtree v. Battles, 187. 
 
 Branch Bk. v. Fry, 471. 
 
 Brandt v. Foster, 613, 614. 
 
 Brandt v. Ogden, 603. 
 
 Brandon v. Brandon, 246. 
 
 Brandon v. Leddy, 590, 592. 
 
 Brandon v. Robinson, 203, 204. 
 
 Branger v. Mancict, 144. 
 
 Brant v. Coal Co.. 52. 
 
 Brant v. Va. Coal Iron Co., 406. 
 
 Brant v. Gallup, 248. 
 
 Brant v. Wilson, 649. 
 
 Brantley v. Perry, 406. 
 
 Brantley v. Wolf, 556. 
 
 Brashear v. Macey, 63. 
 
 Brass v. Vandecar, 616, 617. 
 
 Brass Foundry, etc., Works v. Gallen- 
 
 tine, 13. 
 
 Brasscon v. Lowy, 251. 
 Bratt v. Bratt, 134. 
 
 xli
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Brattleboro v. Mead, 397. 
 
 Bratton f. Masscy, 848. 
 
 Bray r. Conrad, 85. 
 
 Bray v. Ellison, 228. 
 
 Bray f. Hussey, 608. 
 
 Braybroke v. Inskip, 241. 
 
 Brayfield v. Brayfield, 634. 
 
 Braytor -v. Jones, 267. 
 
 Brazee &. Schofield, 193. 
 
 Breathitt v. Whittake, 644. 
 
 Breckinridge v. Auld, 230. 
 
 Breckinridge v. Brook, 246. 
 
 Breckinridge v. Ormsby, 493, 556. 
 
 Bredenburg v. Landrum, 227, 242. 
 
 Breeding v. Taylor, 149. 
 
 Breen v. Seward, 253. 
 
 Breher v. Reese, 156. 
 
 Brennan v. Eggeman, 511. 
 
 Bremen M. & M. Co. v. Bremen, 225. 
 
 Breinoman v. Schell, 480. 
 
 Breneiser v. Davis, 603. 
 
 Brennan v. Lachat, 146. 
 
 Bresee v. Stiles, 121, 648. 
 
 Breshman v. Nugent, 126. 
 
 Bressler v. Kent, 558. 
 
 Brethbur v. Schorer, 258, 286. 
 
 Brett v. Farr, 495. 
 
 Brew v. Van Denman, 626. 
 
 Brewer v. Cox, 301, 472. 
 
 Brewer v. Connell, 96. 
 
 Brewer v. Conover, 166. 
 
 Brewer v. Dyer, 156. 
 
 Brewer v. Hardy, 541, 543. 
 
 Brewer v. Hyndman, 266, 433. 
 
 Brewer v. Marshall, 626. 
 
 Brewer v. Vanarsdale, 116. 
 
 Brice v. Sheffield, 590, 592. 
 
 Brice v. Smith, 633. 
 
 Brice v. Stokes, 380. 
 
 Brice v. Taylor, 596. 
 
 Brich v. Getsinger, 267. 
 
 Brickett v. Spofford, 501. 
 
 Bridgeford v. Riddel, 566. 
 
 Bridgeport v. Blinn, 255. 
 
 Bridger v. Pierson, 608. 
 
 Bridges v. Purcell, 466. 
 
 Bridwell v. Bridwell, 123. 
 
 Bridwell v. Swank, 637. 
 
 Brien v. Robinson, 34. 
 
 Brier v. Brinkman, 272. 
 
 Brigden v. Carhart, 262. 
 
 Briggs v. Hall, 153. 
 
 Briggs v. Hill, 219. 
 
 Briggs v. Partridge, 569. 
 
 Briggs v. Seymour, 254. 
 
 Brigham v. Bert Hospital, 629. 
 
 Brigham v. Peter Bent Brigham Hos., 
 
 641. 
 
 Brigham v. Potter, 236. 
 Brigham v. Rean, 494. 
 Brigham v. Smith, 606. 
 Brigham v. Winchester, 225. 
 Bright v. Boyd, 500. 
 Bright v. Buckman, 238, 586. 
 Bright v. Larcher, 463. 
 Bright v. New Orleans Ry. Co., 602. 
 Brightman v. Chaping, 438. 
 Brightman v. Brightman, 298. 
 Brillhard v. Misch, 195, 307. 
 Brinckerhoff v. Lansing, 256. 
 Brinckerhoff v. Remsen, 633. 
 
 xlii 
 
 Brindernagle v. German Ref. Church, 
 
 275. 
 
 Bringloe v. Goodson, 405. 
 Brinkerhoff v. Elliott, 203. , 
 
 Brinkerhoff v. Marvin, 263. 
 Brinkerhoff v. Vansciven, 218. 
 Brjnley v. Whiting, 559. 
 Brimmer v. Longwarf, 493. 
 Brinson & Co. v. Kirkland, 467, 568. 
 Briscoe v. McGee, 179. 
 Briscoe v. Power, 283. 
 Bristol v. Carrol County, 493. 
 Bristow v. Warde, 419. 
 Brittain v. Mull, 114. 
 Brixen v. Jorgensen, 221. 
 Broach v. Barfield, 233. 
 Broadrup v. Woodman, 374. 
 Broadwell v. Banks, 614. 
 Broadwell v. King, 219. 
 Brobst v. Brock, 266. 
 Brodie if. Parsons, 56. 
 Brock v. Eastman, 195. 
 Brocker v. Jones, 493. 
 Brocklehurst v. Jessop, 216, 247. 
 Brodie v. Stephens, 297. 
 Brody v. Brody, 502. 
 Bromfield v. Crowder, 301. 
 Bromley v. Ark., 168. 
 Bronson v. Coffin, 616, 626. 
 Brook v. Beadley, 464. 
 Brook v. Rice, 242. 
 Brookhaver v. Smith, 606. 
 Brookings v. White, 236. 
 Brooks v. Augusta Warehouse Co., 149. 
 Brooks v. Barrett, 637. 
 Jlrooks v. Curtis, 617. 
 Brooks v. Everett, 86. 
 Brooks v. Galster, 16. 
 Brooks v. Marbury, 361. 
 Brooks v. Moody, 617. 
 Brooks v. Topeka, 441. 
 Brossart v. Corlett, 608. 
 Brostwcll v. Bank, 614. 
 Broughton v. Randall, 93. 
 Broughton v. Vasquez, 233. 
 Brower v. Witmeyer, 260. 
 Brown v. Allen, 619. 
 Brown v. Armstrong, 445. 
 Brown v. Bailey, 593. 
 Brown v. Baldwin, 17. 
 Brown v. Bank, 244. 
 Brown v. Bartee, 282. 
 Brown v. Beaver, 635. 
 Brown v. Berry, 439. 
 Brown v. Bragg, 129, 147. 
 Brown v. Bridges, 68, 300. 
 Brown v. Brown, 399, 649. 
 Brown v. Budd, 219. 
 Brown v. Burkenmeyer, 433. 
 Brown v. Caldwell, 556. 
 Brown v. Cascaden, 236. 
 Brown v. Cave, 367, 88. 
 Brown v. Chadbourne, 599. 
 Brown v. Cockerell, 497. 
 Brown v. Cole, 254. 
 Brown v. Concord, 641. 
 Brown v. Crafts, 373. 
 Brown v. Cram, 244. 
 Brown v. Crittenden, 406. 
 Brown v. Dan forth, 577, 578. 
 Brown v. Dean, 229, 584.
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.] 
 
 Brown v. Dewey, 231, 23 
 
 Brown v- Dye, 482. 
 
 Brown v. East, 220. 
 
 Brown v. Eaton, 635. 
 
 Brown v. Freed, 55(5. 
 
 Brown v. Geissler, 321. 
 
 Brown v. Gilman, 218. 
 
 Brown v. Higgs, 418. 
 
 Brown v. Hogle, 187. 
 
 Brown v. Holyoke, 229. 
 
 Brown v. Huzer, 595, 603. 
 
 Brown v. Illins, 445. 
 
 Brown v. Jackson, 547, 619. 
 
 Brown v. Johnson, 266. 
 
 Brown v. Kansas City, 441. 
 
 Brown v. Keller, 163. 
 
 Brown v. Kemp, 431. 
 
 Brown v. Lamphear, 527. 
 
 Brown v. Lapham, 242. 
 
 Brown v. Lawrence, 290, 297. 
 
 Brown v. Leach, 237, 244. 
 
 Brown v. Leete, 497. 
 
 Brown v. Lincoln, 160. 
 
 Brown v. Lunt, 581. 
 
 Brown v. McAllister, 633. 
 
 Brown v. McCormick, 514. 
 
 Brown v. McMullen, 194. 
 
 Brown v. Meredith, 85. 
 
 Brown v. Metz, 624. 
 
 Brown v. Miller, 272. 
 
 Brown v. Mitchell, 637. 
 
 Brown v. Potter, 92. 
 
 Brown v. Rickard, 608. 
 
 Brown v. Robins, 448. 
 
 Brown v. Rogers, 298. 
 
 Brown v. Saltonstall. 592. 
 
 Brown v. Samuel, 159. 
 
 Brownson v. Scanlan, 504. 
 
 Brown v. Scott, 258. 
 
 Brown v. Simons, 285. 
 
 Brown v. Smith, 543, 574. 
 
 Brown v. South Boston Sav. Bank, 246, 
 
 253. 
 
 Brown v. Starr, 123. 
 Brown v. Stillman, 253. 
 Brown v. Thorndike, 648. 
 Brown v. Throckmorton, 522. 
 Brown r. Thurston, 162. 
 Brown v. Tilley, 97, 206. 
 Brown v. Tomlinson, 623. 
 Brown v. Tyler, 238. 
 Brown v. Vanlier, 217. 
 Brown v. Veazie, 532. 
 Brown v. Wellington, 178. 
 Brown v. Williams, 85, 99. 
 Brown v. Windson, 448. 
 Browne v. Kennedy, 597. 
 Brownell v. Brownell, 195. 
 Brownfield v. Wilson, 649. 
 Broyles v. Nowlin, 368. 
 Bruce v. Bonnez, 2">7. 
 Bruce v. Bruce, 417. 
 Bruce v. Luke, 511, 547. 
 Bruce v. Perry, 574. 
 Bruce v. Hemp, 480. 
 Bruce v. Tilson, 221. 
 Bruce v. Wood, 69. 
 
 Brucer v. Fulton National Bank, 132. 
 Bruckner v. Lawrence, 596. 
 Brudenell v. Elwes, 312. 
 Brudge v. Walling, 388. 
 
 Bruhn r. Fireman's Bldg., 197. 
 
 Brumagin v. Bradshaw, 495. 
 
 Brumback v. Brumback, 85. 
 
 Brumbaugh v. Shoemaker, 278. 
 
 Brummet v. Barber, 399. 
 
 Brundage i\ Missionary Soc., 275. 
 
 Brundred v. Walker, 512. 
 
 liruner v. Bateman, 126. 
 
 Brunson v. King, 631. 
 
 Brunton v. Hall, 438. 
 
 Brush v. Brush, 648. 
 
 Brush v. Ware, 521, 586. 
 
 Brush v. Wilkins, 647. 
 
 Bryan v. Atwater, 497. 
 
 Bryan v. Batchelder, 98. 
 
 Bryan v. Bigelow, 631. 
 
 Bryan v. Bradley, 548. 
 
 Bryan v. Rhoades, 121. 
 
 Bryan v. Whistler, 430. 
 
 Bryant v. Damon, 251, 289. 
 
 Bryant v. Erskine, 237. 
 
 Bryant v. Merritt, 445. 
 
 Bryant v. Peck, 257. 
 
 Brydges v. Brydges, 374. 
 
 Bryson v. Collmer, 217. 
 
 Bryson v. June, 244. 
 
 Bubb v. Bubb, 84. 
 
 Bubier v. Roberts, 117, 118. 
 
 Buchan v. Summer, 185, 583. 
 
 Buchanan v. Anderson, 644. 
 
 Buchanan v. Buchanan, 393. 
 
 Buchanan v. Curtis, 441. 
 
 Buchanan f. Hazzard, 558. 
 
 Buchanan v. International Bank, 584. 
 
 Buchanan r. Munroe, 252. 
 
 Buchanan v. Reid, 266, 275. 
 
 Buck 7 1 . Martin, 197. 
 
 Buck v. Pickwell, 563. 
 
 Buck v. Swazey, 367, 368. 
 
 Buckinghamshire ^'. Drury, 1 
 
 Buckley v. Buckley, 185. 
 
 Buckley v. Chapman, 250. 
 
 Buckley v. Gerard, 647. 
 
 Bucklin v. Bucklin, 236. 
 
 Bucknall v. Story, 532. 
 
 Buckworth v. Thirkell. 99, 356. 
 
 Budd v. Brooke, 506. 
 
 Budde v. Rebenack, 195. 
 
 Buel v. Buel, 129. 
 
 Buell v. Cork, 136. 
 
 Buffalo Steam Engine Work v. Ins. Co., 
 
 248. 
 
 Buffington v. Maxam, 366. 
 Buffum v. Green, 578. 
 Bufreett ?. Rosen feld, 275. 
 Buist v. Dawes, 298. 
 Bulger v. Roche, 507. 
 Bulkley v. Devine, 135. 
 Bull v. Kingston, 401. 
 Bull v. Vardy, 418. 
 Bullard v. Bowers, 94. 
 Rullard v. Harrison, 440. 
 Bullard v. Leach, 273. 
 Bullene v. Garrison, 574. 
 Bullin v. Hancock, 53, 553. 
 Bullitt v. Coryell. 623. 
 Bullitt v. Taylor, 566. 
 Bullock v. Bennett, 394. 
 Bullock v. Dommitt, 151. 
 Bullock v. Phelps, 428. 
 Bullock v. Seymour, 397. 
 
 xliii
 
 TABLE OF OASES CITED. 
 
 [References are to Sections.] 
 
 Bullock v. Stone, 385. 
 
 Bullock v. Waterman St. Soc., 321. 
 
 Bullock v. \Vhipp, 2'JS. 
 
 Bumpus v. Plainer. 
 
 Bunker :. Gordon, 586. 
 
 Buntis v. French, 217. 
 
 Buntin v. Johnson, 633. 
 
 Bunting v. Gilmore, 509. 
 
 Bunting v. Saltz, 126. 
 
 Bunting v. Speek, 299, 301. 
 
 Bunton v. Richardson, 104. 
 
 Buras v. O'Brien, 488. 
 
 Burbank v. Pillsbury, 617. 
 
 Burbank v. Whitney, 298, 641. 
 
 Burch v. Brown, 647. 
 
 Burch v. Carter, 586. 
 
 Burch v. Monton, 127. 
 
 Burchell v. Osborne. 275. 
 
 Burden v. Thayer, 149, 292. 
 
 Burden v. Barkus, 368. 
 
 Burdett v. Caldwell, 166. 
 
 Burdett v. Clay, 250, 251. 
 
 Burdett v. Hopegood, 638. 
 
 Burdette v. May, 367, 505. 
 
 Burdge v. Bolin, 126. 
 
 Burdick v. Heinley, 510. 
 
 Burford v. Aldridge, 408. 
 
 Burge v. Hamilton, 650. 
 
 Burger v. Potter, 221. 
 
 Burgess v. Gray, 505. 
 
 Burgess v. Millican. 217, 218. 
 
 Burgess v. Wheat, 220, 325. 
 
 Burgett v. Taliaferro, 559. 
 
 Burgner v. Humphrey, 5. 
 
 Burgoye v. Spurling, 254. 
 
 Burhaus v. Hutchinson, 242. 
 
 Burk v. Barren, 85. 
 
 Burk v. Hill, 617. 
 
 Burk v. Hollis, 18, 466. 
 
 Burkamp v. Healey, 549. 
 
 Burke v. Lynch, 247. 
 
 Burke v. Stiles, 408. 
 
 Burke v. Valentine, 84. 
 
 Burkett v. Burkett, 126. 
 
 Burkhalter v. Ecton, 580. 
 
 Burkhart v. Walker & Son, 127. 
 
 Burkholder v. Casad, 577. 
 
 Burks 11. Burks. 368. 
 
 Burks v. Mitchell, 494. 
 
 Burleigh v. Clough, 298. 408. 
 
 Burleyson v. Whitley, 282. 
 
 Burlington Univ. v. Barrett, 631 
 
 Burmmet v. Barber. 397. 
 
 Bnrnell v. Martin, 276. 
 
 Burnes v. Burnes, 528, 645. 
 
 Burnet v. Burnet, 87. 
 
 Burnett v. Dennistoe, 255, 262. 
 
 Burnett v. Lynch, 139. 
 
 Burnett v. McCluey. 572. 
 
 Burnham v. Freeman, 2. 
 
 Burns v. Byrne, 498. 
 
 Burns v. Clark, 3. 
 
 Burns v. Collins, 248. 
 
 Burns v. Cooper, 149, 160. 
 
 Burnes v. Fuchs, 146. 151. 
 
 Burns v. Gallagher, 431. 
 
 Burns v. Lynde, 496, 576. 
 
 Burns v. McCubbin, 147, 204. 
 
 Burns v. Thayer, 279. 
 
 Burnside v. Ferry, 126. 
 
 Burnside v. Merrick, 86, 184. 
 
 xliv 
 
 Burnsides v. Twichell, 13, 265. 
 
 liurnside v. Terry, 228. 
 
 Iturnside v. Watkins, 125. 
 
 Burnside v. Wayman, 228. 
 
 Burr v. Veeder, 269. 
 
 Burrall v. Clark, 92, 118. 
 
 Burrall v. Hurd, 87, 118. 
 
 Burrell v. Bull, 368. 
 
 Burrell v. Burrell, 497. 
 
 Burrell v. Lumber Co., 13. 
 
 Burrill v. Boardman, 399. 
 
 Burrill v. Shield, 378. 
 
 Burris v. Page, 86. 
 
 Burroughs v. Nutting, 637. 
 
 Burroughs v. Saterlee, 445. 
 
 Burrowes v. Malloy, 272. 
 
 Burrows v. Burrough, 637. 
 
 Burrows v. Gallup, 501. 
 
 Burrus v. Roulbac's Admx., 217. 
 
 Burson v. Andes, 256. 
 
 Burt v. Hurlburt, 71. 
 
 Burt "V, Merchants Ins. Co., 525 
 
 Burton v. Anthony, 557. 
 
 Burton v. Barclay, 155. 
 
 Burton v. Baxter, 250, 251. 
 
 Burton v. Reed, 514. 
 
 Burton v. Wheeler, 286. 
 
 Burwell v. Snow, 608. 
 
 Buse v. Russell, 489. 
 
 Bush v. Bradley, 80. 
 
 Bush v. Bush, 380, 637. 
 
 Bush v. Coomer, 199. 
 
 Bush v. Gamble, 178. 
 
 Bush v. Marshall, 217. 
 
 Bush v. Piersol, 97. 
 
 Bush v. Sherman, 277, 278. 
 
 Bush v. Wilkins, 647. 
 
 Ruskirk v. Stickland, 448. 
 
 Busnen v. Bank, 246. 
 
 Buss v. Dyer, 431. 
 
 Bussman v. Gauster, 151. 
 
 Bustard v. Coulter, 609. 
 
 Buswell v. Peterson, 272. 
 
 Butcher v. Butcher, 85. 
 
 Butler v. Baker, 561. 
 
 Butler v. Brown, 121, 574. 
 
 Butler v. Gushing, 146. 
 
 Butler v. Godley, 379. 
 
 Butler v. Henstis, 415. 
 
 Butler v. Manney, 142. 
 
 Butler v. Maury, 583. 
 
 Butler v. Roys, 178, 593. 
 
 Butler v. Seward, 257, 258. 
 
 Butte, etc., Co. v. Ore Purch. Co., 468. 
 
 Butte Min. Co. v. Sloane, 5. 
 
 Butterfield v. Baker, 160. 
 
 Butterfield v. Wicks, 121. 
 
 Butterfield v. Wilton Academy, 204, 370. 
 
 Butrick v. Tilton, 577. 
 
 Buttrick v. Wentworth, 281. 
 
 Butts v. Fox, 68, 156. 
 
 Buypn v. Biglow, 628. 
 
 Buzick v. Buzick, 85. 
 
 Buzzell v. Cummings, 13. 
 
 Byers v. Engles, 583. 
 
 Byles v. Lome, 585. 
 
 Bynum v. Bynum, 633. 
 
 Byrane v. Rogers, 150. 
 
 Byrnes v. Labagh, 301. 
 
 Byrne v. Taylor, 273.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Cabot v. Windsor, 640. 
 
 Caddick v. Cook, 266. 
 
 Caddo v. Parish of Red River, 524. 
 
 Cadell v. Palmer, 132. 
 
 Cadematori v. Gauger, 74. 
 
 Cadman v. Peter, 233. 
 
 Cadmus v. Fagan, 6] 7. 
 
 Cadmus v. Jackson, 533. 
 
 Cady v. Shepherd, 569. 
 
 Cahill v. Palmer, 496. 
 
 Cain v. Fisher, 617. 
 
 Caines v. Grant's Lessee, 176, 368. 
 
 Cairns v. Colburn, 329. 
 
 Cake v. Cake, 592. 
 
 Calahan v. Linthicum, 248. 
 
 Calder v. Chapman, 583, 584. 
 
 Caldwell v. Copeland, 5. 
 
 Caldwell v. Fulton, 4, 590. 
 
 Caldwell v. Hall, 246. 
 
 Caldwell v. Kirkpatrick, 621. 
 
 Caldwell v. Taggert, 273. 
 
 Caldwell v. Trezevant, 74. 
 
 Cale v. Mueller, 595. 
 
 Calhoun v. Calhoun, 348. 
 
 Calhoun v. Curtis, 191. 
 
 Calhoun v. Furgeson, 640. 
 
 Calhoun v. McLendon, 122. 
 
 Calhoun v. Lullass, 274. 
 
 Calhoun v. Williams, 122. 
 
 California v. Tel. Co., 453. 
 
 Calk v. Stribling, 597. 
 
 Calkins v. Minse 1, 255. 
 
 Calkins v. Steinbach, 187. 
 
 Call v. Barker, 195. 
 
 Call v. Perkins, 558. 
 
 Callahan v. Robinson, 118. 
 
 Callaway v. Hubner, 382. 
 
 Galloway v. Doe, 519. 
 
 Galloway v. People's Bank, 278. 
 
 Calmes v. Jones, 37. 
 
 Calmount v. Whitaker, 444. 
 
 Calvert v. Aldrich, 190, 451. 
 
 Calvert v. Bradley, 139. 
 
 Calvert v. Fitzgerald. 596. 
 
 Calvert v. Hobbs, 139. 
 
 Calville v. Kinsman, 642. 
 
 Cambridge Lodge v. Routh, 158. 
 
 Cambridge Valley Bank v. Delano, 
 
 586. 
 
 Camden v. Vail, 218. 
 Cameron v. Irwin^ 280. 
 Cameron v. Little, 164. 
 Cammann v. Cammann, 56, 384. 
 Camp v. Coxe, 239. 
 Camp v. Cronknght, 301. 
 Camp v. Smith, 254, 522. 
 Campan v. Bernard, 199. 
 Gampan r. Campan, 498. 
 Gampan f. Dubois, 495. 
 Campan v. Godfrey, 593. 
 Campbell v. Bemis, 558. 
 Campbell v. Burch, 250. 
 Campbell r. Clark, 640. 
 Campbell v. Dearborn, 231, 233. 
 Campbell v. Henry, 218. 
 Campbell v. Tones, 126. 
 Campbell v. Kuhn, 556. 
 Campbell v. Knights, 528. 
 
 584, 
 
 Campbell v. Laclede Gaslight Co., 193, 
 
 498. 
 
 Campbell v. Leach, 414. 
 Campbell v. Lewis, 147. 
 Campbell v. Loader, 128. 
 Campbell v. Murphy, 108. 
 Campbell v. Procter, 162. 
 Campbell v. Roach, 221. 
 Campbell v. Roddy, 13, 15. 
 Campbell v. Selley, 204. 
 Campbell v. Smith, 253. 
 Campbell v. Wilson, 429. 
 Canady v. Boliver, 286. 
 Canal Appraisers v. People, 599. 
 Canal Co. v. Railroad Co., 207. 
 Canal Commrs. v. The People, 598. 
 Canedy v. Marcy, 590. 
 Candee v. Burke, 278. 
 Canfield v. Ford, 4. 
 Canfinan v. Sayee, 272. 
 Canney v. Canney, 125. 
 Canning v. Pinkham, 578. 
 Cannon v. Cannon, 577. 
 Cannon v. Setzler, 634. 
 Cannon v. White, 519. 
 Cantrell v. Fowler, 146, 151. 
 Capehart v. Deltrich, 236. 
 Capen v. Peckham, 16. 
 
 Capen v. Richardson, 329. 
 Capner v. Farmington Co., 265. 
 
 Capper v. Sibley, 134. 
 
 Caraway v. Chancy, 595. 
 
 Carberry v. Preston, 247. 
 
 Carbrey v. Willis, 595. 
 
 Card v. Griesman, 645. / 
 
 Carey v. Baughn, 647. 
 
 Carey v. Boyle, 219. 
 
 Carey v. Daniels, 444. 
 
 Carey v. Rawson, 213. 
 
 Carl v. Lowell, 172. 
 
 Carleton Mills Co. v. Silver, 447. 
 
 Carley v. Parton, 495. 
 
 Carlin v. Chappell, 448. 
 
 Carlin v. Ritter, J8, 15. 
 
 Carl] v. Butman, 287. 
 
 Carlisle v. Carlisle, 574. 
 
 Carlisle v. Cooper, 429. 
 
 Carloss v. Oxford, 202. 
 
 Carlton r. Buckner, 219. 
 
 Carman v. Johnson, 521. 
 
 Carman v. Mosier, 55. 
 
 Carmichael v. Carmichael, 101. 
 
 Carmichael v. Trustees, 596. 
 
 Carmody v. Chicago, 497. 
 
 Games v. Apperson, 365. 
 
 Carolina Nat. Bank v. Senn, 121. 
 
 Carpenter v. Allen, 13. 
 
 Carpenter v. Black Hawk, 278. 
 
 Carpenter v. Brenham, 242. 
 
 Carpenter v. Buller, 515. 
 
 Carpenter v. Carpenter, 235, 556". 
 
 Carpenter v. Casper, 243. 
 
 Carpenter v. Coats, 197. 
 
 Carpenter r. Dexter, 574, 581. 
 
 Carpenter v. Gleason, 242, 258. 
 
 Carpenter v. Graber, 435. 
 
 Carpenter v. Ins. Co., 248. 
 
 Carpenter v. Koons, 253. 
 
 Carpenter v. Longan, 253. 
 
 Carpenter v. Monks, 417. 
 
 xlv
 
 TABLE OK CASES CITED. 
 
 [References are io Sections.] 
 
 Carpenter v. Murin, 568. 
 
 Carpenter v. O'Dougherty, 274. 
 
 Carpenter v. Weeks, 92. 
 
 Carpentier v. Webster, 186. 
 
 Carpentier r. Williamson, 547 
 
 Carr v. Carr, 233, 234. 
 
 Carr v. Field, 33. 
 
 Carr r. Givens, 80. 
 
 Carr v. Hobbs, 217. 
 
 Carr r. Holbrook, 230. 
 
 Carr v. Holliday, 550. 
 
 Carr r. Hoxie, 579. 
 
 Carr v. Risiny, 231. 
 
 Carrico v. Farmers, etc., Bk., 218. 
 
 Carrier r. Earl, 166. 
 
 Carrier <.: Gale, 505. 
 
 Carrigan v. Evans, 195. 
 
 Carring t'. Dee, 443. 
 
 Carrington -. Roots, 4. 
 
 Carrol r. Gillion, 497. 
 
 Carrol r. Norton, 633. 
 
 Carrol v. Norwood, 548, 595. 
 
 Carroll v. Burns, 322. 
 
 Carroll v. Conley, 388. 
 
 Carroll v. Hancock, 354. 
 
 Carroll v. Rigncy, 146. 
 
 Carroll Co. Academy v. Trustees, 205. 
 
 Carrough v. Hannill, 613. 
 
 Carson v. Blazer,. 599. 
 
 Carson f. .Coleman, 525. 
 
 Carson v. Fuhs, 79, 321. 
 
 Carson r. McCaslin, 609. 
 
 Carson r. Murray, 97. 
 
 Carter v. Dunnan, 616. 
 
 Carter v. Chandron, 572. 
 
 Carter v. Chesapeake, 597. 
 
 Carter v. Dale, 79. 
 
 Cartwright v. Gardner, 148. 
 
 Carter v. Gibson, 373. 
 
 Carter v. Goodin, 87. 
 
 Carter r. Hammett, 140. 
 
 Carter v. Hunt, 301. 
 
 Carter v. Montgomery, 367. 
 
 Carter v. Parker, 105. 
 
 Carter v. Penn, 572. 
 
 Carter v. Rockett, 248. 
 
 Carter v. Wake, 216. 
 
 Carter v. Warne, 140. 
 
 Carter v. White, 199. 
 
 Carter v. Williams, 80. 
 
 Carter Lumber Co. v. Clay, 127. 
 
 Caruthers r. Caruthers, 117. 
 
 Carver v. Eads, 217. 
 
 Carver v. Bowles, 399. 
 
 Carver v. Brady, 278. 
 
 Carver v. Jackson, 306. 
 
 Carwardine v. Carwardine, 356. 
 
 Cary i/. Daniels, 435, 616. 
 
 Caryl v. Russell, 250. 
 
 Casborne v. Scarfe, 225, 239. 
 
 Case v. Codding, 367. 
 
 Case Threshing Co. v. Mitchell, 285. 
 
 Casey v. Dunn, 494. 
 
 Casey v. Gregory, 157. 
 
 Casler v. Byers, 272, 592. 
 
 Cason r. Hubbard, 97. 
 
 Cass v. Martin, 87. 
 
 Cassada v. Stable, 612. 
 
 Cassedy v. Stoble, 548. 
 
 Casserly v. Witherbee, 255, 266. 
 
 Casson v. Dode, 633. 
 
 xlvi 
 
 Casteus v. Murray, 629, 644. 
 
 Castle v. Castle, 261, 582. 
 
 Castleman i. Belt, 245. 
 
 Cattleman v. Castleman, 473. 
 
 Gates r. Field, 625. 
 
 Gates v. Woodson, 556. 
 
 Catherwood v. Watson, 367. 
 
 Catlin v. Brown, 399. 
 
 Cathin v. Decker, 498. 
 
 Catlin v. Ware, 105. 
 
 Catoe v. Catbe, 367, 480. 
 
 Catts r. Simpson, 146. 
 
 Cave r. Crafts, 432. 
 
 Cavender v. Smith, 521. 
 
 Cavis v. Beckford, 14. 
 
 Cavins t'. Chabert, 54. 
 
 Cecil v. Beaver, 561, 578. 
 
 Cemousky v. Fitch, 617. 
 
 Center Cr. Min. Co. v. Frankenstein, 
 
 162. 
 Central Trust Co. v, N. Y. & N. R. Co., 
 
 272. 
 
 Chace v. Chace, 647. 
 Chadbourne v. Mason, 603. 
 Chadsey v. Chadsey, 480. 
 Chadwick v. Carson, 592. 
 Chadwick v. Tatem, 118, 648. 
 Chadwick v. Haverhill Bridge, 453. 
 Chaffee r. Baptist, 632, 633. 
 Chalker v. Chalker, 207. 
 Challefoux v. Ducharme, 
 Chamberlain v. Bradley, 603. 
 Chamberlain v. Brown, 122. 
 Chamberlain v. Donahoe, 163, 166. 
 Chamberlain v. Dunlap, 155, 156. 
 Chamberlain v. Preble, 624. 
 Chamberlain v. Runkler, 31. 
 Chamberlain f. Stanton, 576. 
 Chamberlain v. Youngs Exr., 301. 
 Chambers v. Goldwin, 234, 274. 
 Chambers v. Perry, 380. 
 Chambliss v. Smith, 368, 623. 
 Champ Spring Co. v. Roth Tool Co., 18, 
 
 146. 
 
 Champion r. Spence, 194. 
 Champlin v. Laytin, 257, 258. 
 Cliampney v. Coope, 242, 254. 
 Chance v. Jennings, 233. 
 Chancellor v. Traphagan, 253. 
 Chandler v. Chandler, 231. 
 Chandler v. Dyer, 255. 
 Chandler v. Kent, 134. 
 Chandler v. Simmons, 556. 
 Chandler v. Thurston, 59, 160. 
 Chandler v. White, 264. 
 Chandos v. Talbot, 62. 
 Chancy v. Chancy, 90. 
 Chapel v. Bull, 625. 
 Chapel v. Smith, 445. 
 Chapin v. Harris, 211, 627. 
 Chapin v. Hill, 118. 
 Chapin v. Nott, 576. 
 Chaplin v. Chaplin, 38. 
 Chaplin v. Doty, 393. 
 Chaplin v. Foster, 273. 
 Chaplin r. Sawyer, 121. 
 Chapman v. Black, 136. 
 Chapman v. Chapman, 213. 
 Chapman r. Cooney, 246. 
 Chapman v. Epperson, 57, 62. 
 Chapman v. Harney, 150.
 
 TABLE OF CASES CITED 
 
 [References are io Sections.] 
 
 Chapman v. Holmes, 624. 
 
 Chapman v. Kirby, 150. 
 
 Chapman v. Lee, 217, 218. 
 
 Chapman v. Polack, 605. 
 
 Chapman v. Schroeder, 114. 
 
 Chapman v. Tanner, 217. 
 
 Chapman v. Towner, 136. 
 
 Chapman v. Wright, 150. 
 
 Chappell v. Allen, 282. 
 
 Charles v. Byrd, 141. 
 
 Charles v. Dubose, 368. 
 
 Charles v. Hazelton, 62. 
 
 Charles v. Morrow, 503. 
 
 Charles v. Patch, 590. 
 
 Charles v. Rankin, 448. 
 
 Charles v. Waugh, 532. 
 
 Charles River Bridge Co. v.~ Warren 
 
 River Bridge Co., 456, 519. 
 Charleston C. & C. R. R. v. Leech, 593. 
 Charleston City Council v. Ryein, 257. 
 Charleston &. W. C. Co. v. Fleming, 178. 
 Charleston Ry. Co. v. Reynolds, 300. 
 Charleston S. Ry. Co. v. Johnson, 599. 
 Charter v. Stevens, 280. 
 Charter Oak Co. v. Gisborne, 219. 
 Chartiers Coal Co. v. Mellon, 438. 
 Chase v. Abbott, 243. 
 Chase v. Alley, 101, 118. 
 Chase v. Cartwright, 371. 
 Chase v. Driver, 62. 
 Chase v. Hazleton, 62. 
 Chase v. Lockerman, 240. 
 Chase v. McDonald, 262. 
 Chase v. Palmer, 246. 
 Chase v. Peck, 217. 
 Chase v. Stockett, 374. 
 Chase v. Woodbury, 283, 284. 
 Chasey r. Gowdry, 301. 
 Chastang v. Chasting, 493, 495. 
 Chastain r. Higdon, 195. 
 Chastain v. Phillips, 494. 
 Chatterton r. Fox, 154. 
 Chattle v. Pound, 157. 
 Chatord v. O'Donovon, 166, 170. 
 Chautauqua Assembly v. Ailing, 139, 147. 
 Chavey r. Chavey, 631. 
 Cheaver v. Perley, 247. 
 Cheever v. Rutland, 243. 
 Chenalt v. Thomas, 615. 
 Chenaults Guardian v. Chenaults Estate, 
 
 840. 
 
 Cheney r. Newberry, 136. 
 Cheney v. Ringold, 494. 
 Cheney v. Watkins, 548. 
 Cheney v. Woodruff. 248. 
 Chenowitch v. Granby Co., 17. 
 Cherry v. Bowen, 234. 
 Cherry 7'. Monro, 257, 286. 
 Cherry v. Slade, 603. 
 Cherry v. Stein, 443. 
 Cherrington r. Adney Mill, 442. 
 Chesley v. Chesley, 278. 
 Chesley v. Welch, 59. 
 Chessman v. Whittemorc, 554. 
 Chess v. Chess, 577. 
 Cheeseborough v. Green, 4. 
 fheeseborough v. Millard, 283. 
 CheeseborotiRh v. Pingree, 151. 
 Cheeseborough v. Ringrel, 134. 
 Th-ster v. Urwick, 368. 
 Chester v. Willan, 177. 
 
 Chestnutt v. Cann, 375. 
 
 Chew r. Barret, 238. 
 
 Chew v. Commissioners, 77. 
 
 Chew v. Kellar, 39, 408. 
 
 Chew's Exrs. v. Chew, 421. 
 
 Chicago v. Peck, 169, 170. 
 
 Chicago B., etc., R. R. Co. v. Watson, 
 
 231. 
 
 Chicago B. & T. R. Co. v. Abbott, 456. 
 Chicago, etc., Ry. Co. r. Gait, 407. 
 Chicago & N. W. R. Co. v. Ft. Howard, 
 
 2. 
 Chicago, P. & St. L. Ry. Co. v. Vaughan, 
 
 53. 
 
 Chick v. Rollins, 247, 498. 
 Chick v. Willetts, 236. 
 Child v. Starr, 601, 597. 
 Childers v. Galloway, 494. 
 Childers v. Henderson, 121. 
 Childs v. Hayman, 195. 
 Childs v. Kurd, 13, 18. 
 Chiles v. Conley, 494, 571. 
 Chiles v. Wallace, 272. 
 Chilton v. Briaders, 217. 
 Chilton 7>. Brooks, 251, 278. 
 Chilton v. Henderson, 321. 
 Chilton v. Xiblett, 163. 
 Chipman v. Emeric, G8, 148. 
 Chipman v. Tucker, 579. 
 Chisholm v. Chisholm, 121. 
 Chisholm r. Georgia, 25. 
 Chisholm's Heirs r. Ben, 633. 
 Chism v. Williams, 397. 
 Chitwood "'. Lanyon Tine Co., 466. 
 Choate i'. Tighe, 217. 
 Cliolineley v. Paxton, 67. 
 Cholmondeley r. Clinton, 247. 
 Chopin r. Runte, 126. 
 Chostek v. Sonta, 576. 
 Chouteau 7'. Eckart, 520. 
 Choutman v. Bailey, 321. 
 Christy v. Alford, 499. 
 Christy f. Badger, 640. 
 Christy v. Dyer, 123. 
 Christy r. Scott, 242. 
 Christopher r. Austin, 154. 
 Church 7'. Burghart, 517. 
 Church f. Chapin, 368. 
 Church 7'. Church, 87, 90. 
 Church v. Gilman, 576, 578. 
 Church v. Kemble, 399. 
 Church v. Meeker. 601. 
 Churchill r. Morse, 583. 
 Church -. Ruland, 368. 
 C'uirch 7'. Savage, 288. 
 Church r. Smith, 221. 
 Churchill 7'. Hulbert, 173, 466. 
 Churchill 7'. Hunt, 616. 
 Churchill 7'. Loring, 275. 
 Chute 7'. Washburn, 202. 
 Cihak v. Klekr, 432. 
 Cilley v. Cilley. 633. 
 Cincin. R. R. Co. -v. Tliff, 578. 
 Citizen's Bank v. Dayton, 256, 274. 
 Citizens Bank 7'. Hejams, 242. 
 City Bank v. Smisson, 126. 
 City Bank v. Smith, 209. 
 City Council v. Walton, 376. 
 City of Galveston v. Menard, 598. 
 City of London v. Greyme, 66. 
 City of New York v. Law. 608. 
 
 xlvir
 
 TABLE OP CASES CITED. 
 
 [References are to Sections.] 
 
 City of Quincy v. Jones, 448. 
 
 City of \\ilkes-Barre v. Wyoming, etc., 
 
 30. 
 Cizck v. Cirek, 71. 
 
 Cla V. Edwards, 683. 
 
 Clafflin v. Brockmeyer, 157. 
 
 Clague t>. Washburn, 581. 
 
 Clanics v. Dickenson, Ii88. 
 
 Clancy v. Rice, 695. 
 
 Clap v. Draper, 4, 563. 
 
 Clapp v. Bromagham, 195. 
 
 Clapp v. Galloway, 87. 
 
 Clapp v. Herdman, 619, 625. 
 
 Clapp v. Stoughton, 207. 
 
 Clapp v. Tirrell, 566. 
 
 Clarey v. Frayer, 407. 
 
 Clary v. Owen, 242. 
 
 Clark v. Allmon, 444. 
 
 Clark i: Baker, 304. 
 
 Clark v. Bell, 221. 
 
 Clark v. Bench, 243. 
 
 Clark v. Bullard, 256. 
 
 Clark v. Bush, 246. 
 
 Clark v. Clark. 181, 443. 
 
 Clark v. Condit, 234, 277. 
 
 Clark v. Conroe, 615. 
 
 Clark v. Crego, 376. 
 
 Clark v. Daniels, 512. 
 
 Clark v. Foot, 66. 
 
 Clark v. Fox, 480. 
 
 Clark v. Gifford, 579. 
 
 Clark v. Graham, 571. 
 
 Clark v. Gilbert, 495. 
 
 Clark v. Henry, 229, 234. 
 
 Clark v. Hershey, 366. 
 
 Clark v. Hunt, 221. 
 
 Clark v. Jacobs, 220. 
 
 Clark v. Jones, 148. 
 
 Clark v. Kelliher, 173. 
 
 Clark v. Leupp, 40. 
 
 Clark v. Lineberger, 618. 
 
 Clark v. Lyon, 229. 
 
 Clark v. McClure, 497. 
 
 Clark v. McNeal, 261, 582. 
 
 Clark v. Midland Blast Furnace Co., 153. 
 
 Clark v. Owens, 46. 
 
 Clark v. Parker, 196. 
 
 Clark v. Pickering, 479. 
 
 Clark v. Prentice, 273. 
 
 Clark v. Reyburn, 239. 
 
 Clark v. Redman, 97. 
 
 Clark v. Seagreaves, 233. 
 
 Clark v. Simmons, 242, 278. 
 
 Clark v. Slaughter, 76. 
 
 Clark v. Smith, 269. 
 
 Clark v. Stilson, 218. 
 
 Clark v. Strong, 465, 645. 
 
 Clark v. Swift, 616. 
 
 Clark v. Taintor, 376, 410. 
 
 Clark v. Way, 4. 
 
 Clark v. White, 453, 504. 
 
 Clark v. Wilson, 248. 
 
 Clarke v. Gaifeney, 435. 
 
 Clarke v. McAnulty, 619. 
 
 Clarke v. Rochester, 531, 525. 
 
 Clarke v. Wagner, 493, 495. 
 
 Clarkson v. Clarkson, 49. 
 
 Clarkson v. Hatton, 39, 40. 
 
 Clarksons r. Doddridge, 251. 
 
 Clnson v. Corley. 245, 275. 
 
 .Claussen v. La Franz, 331. 
 
 xlviii 
 
 Clavering v. Clavering, 64. 
 
 Claycomb v. Munger, 619, 624. 
 
 Clayton v. Liverman, 644. 
 
 Clearwater v. Rose, 30, 257. 
 
 Cleary v. McDowell, 69. 
 
 Cleaver v. Cleaver, 473. 
 
 Clemence v. Steere, 62. 
 
 Clemens v. Bromfield, 163. 
 
 Clement v. Burtis, 433, 626. 
 
 Clement v. Perry, 495. 
 
 Clement v. Youngmann, 4, 590. 
 
 Clements v. Griswold, 242. 
 
 Clepper v. Livergood, 79. 
 
 Cleveland v. Booth, 272. 
 
 Cleveland v. Flagg, 559. 
 
 Cleveland v. Hallet.t, 346, 406. 
 
 Cleveland v. Jones, 501. 
 
 Clifford v. Parker, 554. 
 
 Clifford v. Watts, 152. 
 
 Clift v. White, 155. 
 
 Clifton v. Montague, 143. 
 
 Climer v. Wallace, 596. 
 
 Cline v. Black, 156. 
 
 Cline v. Jones, 576. 
 
 Clingen v. Mitcheltree, 645. 
 
 Climie v. Wood, 10. 
 
 Clinton v. Myers, 444. 
 
 Clock v. Gilbert, 504. 
 
 Cloos v. Cloos, 183. 
 
 Cloud v. Calhoun, 375. 
 
 Clough v. Clough, 387. 
 
 Clough t'. Bowman, 590. 
 
 Clough v. Rowe, 272. 
 
 Clowes v. Dickinson, 284. 
 
 Clowes v. Hawley, 186. 
 
 Cloyd v. Cloyd, 119. 
 
 Clute v. N. Y., etc., R. R. Co., 604. 
 
 Cluett v. Sheppard, 135, 606. 
 
 Clyburn v. Reynolds, 300. 
 
 Clymer v. Dawkins, 186, 498. 
 
 Coal Co. v. Mellon, 4. 
 
 Coal Creek Mining Co. v. Heck, 494, 608, 
 
 Coates v. Cheever, 64, 87. 
 
 Cobb v. Lucas, 562. 
 
 Cobb v. Davenport, 599. 
 
 Cobb v. Stokes, 164. 
 
 Coberly v. Coberly, 460. 
 
 Cobert v. Cobert, 117. 
 
 Cobley v. Cobley, 492. 
 
 Coburn v. Coxeter, 594. 
 
 Coburn v. Hollis, 497. 
 
 Coburn v. Palmer, 157. 
 
 Coburn v. Palmer, 157. 
 
 Cochran v. O'Hern, 72. 79. 
 
 Cochrane v. Cochrane, 186, 397. 
 
 Cochrane v. Guild, 617. 
 
 Cochran v. Van Surlay, 526. 
 
 Cocker v. Cowper, 467. 
 
 Cockney v. Milne, 581. 
 
 Coder v. Hading, 184. 
 
 Codman v. Brigham, 641. 
 
 Codwise v. Taylor, 221. 
 
 Cody v. Bunns, 640. 
 
 Coe v. Bates, 482. 
 
 Coe v. Columbia, 228. 
 
 Coe v. Hobby, 156. 
 
 Coe v. Ritter, 590. 
 
 Coffer v. Argo, 365. 
 
 Coffey v. Hendricks, 574, 590. 
 
 Coffin v. Elliott, 640. 
 
 Coffin v. Loring, 238.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Coffin t. Ray, 585. 
 
 Coffman v. Huck, 166. 
 
 Cofran v. Shephard, 172. 
 
 Cogan v. Cogan, 313. 
 
 Cogan v. Cook, 584. 
 
 Coggswell r. Tibbetts, 98. 
 
 Coglan v. Coglan, 637. 
 
 Cogswell v. Cogswell, 54. 
 
 Cohn v. Hoffman, 125, 242. 
 
 Colin v. Norton, 131. 
 
 Coit v. McReynolds, 614. 
 
 Coker v. Pearsall, 292. 
 
 Colbert v. Spleen, 638. 
 
 Colburn v. Mason, 186. 
 
 Colburn v. Morrill, 154. 
 
 Colburn r. Richards, 444. 
 
 Colby v. Osgood, 612. 
 
 Colchester v. Roberts, 438. 
 
 Cold Springs Iron Works v. Tolland, 
 
 597 
 
 Coldwell v. Woods, 230. 
 Col v. Patton, 30. 
 Cole v. Barlow, 452. 
 Cole r. Beale, 43. 
 Cole v. Bickelhaupt, 65. 
 Cole v. Goble, 397. 
 Cole i'. Hughes, 433. 
 Cole v. Lake Co., 163. 
 Cole "v. Livingston, 304. 
 Cole v. Patterson, 149. 
 Cole v. Pennoyer, 557. 
 Cole v. Raymond, 620, 621. 
 Cole v. Scott, 217. 
 Cole v. Sewell, 312, 354. 
 Cole v. Sprowle, 441. 
 Cole v. Wade, 378, 410. 
 Colee v. Colee, 568. 
 Cole v. Wolcotville, 69. 
 Coleman v. Cabaniss, 402. 
 Coleman v. Barklew, 586. 
 Coleman v. Billings, 493, 495. 
 Coleman v. Bresnahan, 511. 
 Coleman v. Chadwick, 448. 
 Coleman v. Coleman, 511, 512. 
 Coleman v. Foster, 465, 466. 
 Coleman r. Lane, 179. 
 Coleman v. Lyman, 614. 
 Coleman r. Packard, 244. 
 Coleman v. Woolley, 348. 
 
 Colomar r. Morgan, 584. 
 Coles v. Allen, 368. 
 Coles v. Trecsthick, 368. 
 Coleman r. Van Rensslaer, 250. 
 Coles v. Wooding, 193. 
 Collamer v. Langdon, 240, 250. 
 Collett v. Henderson, 197. 
 Collier v. Cowger, 619, 625. 
 Collier r. Doe, 558. 
 Collier v. Pierce, 443. 
 Collins ^'. Baytt, 127. 
 Collins v. Bounds, 126. 
 Collins v. Chartiers Val. Gas Co., 445. 
 Collins r, Crownover, 55. 
 Collins r. Davis, 239. 
 Collins v. Hasbrouck, 139, 140. 
 Collins v. Johnson, 498. 
 Collins v. Larenburg, 348. 
 Collins v. Lumber Co., 300. 
 Collins v. Stocking, 242. 
 Collins v. Torsey. 87, 239. 
 Collins v. Townley, 631. 
 
 Collonore v. Gilles, 16. 
 
 Colls v. Home & Colonial Stores, 434, 
 443. 
 
 Collyer v. Collyer, 134. 
 
 Colquhoun v. Atkinson, 262. 
 
 Colson v. Baker, 176. 
 
 Coltman v. Senhouse, 398. 
 
 Colton v. Seavey, 594, 595. 
 
 Colton v. Smith, 195, 196. 
 
 Columbia Ins. Co. v. Lawrence, 248. 
 
 Colwell v. Woods, 229. 
 
 Coman v. Lakey, 365. 
 
 Combs v. Jolly, 631. 
 
 Combs v. Little, 368. 
 
 Combs, Admr. v. Krish, 220. 
 
 Comer v. Chamberlain, 82. 
 
 Comerford v. Cobb, 572. 
 
 Com foil v. Mather, 642. 
 
 Commercial Bank v. Ulmann, 572. 
 
 Commercial Ins. Co. v. Spankneble, 248. 
 
 Commissioners v. Chesapeake, 257. 
 
 Commissioners v. Hackett, 291, 298. 
 
 Commissioners v. Kempshall, 597. 
 
 Commissioners "V. Low, 429. 
 
 Commissioners v. O'Rear, 75. 
 
 Commissioners v. Thompson, 594. 
 
 Commonwealth v. Alger, 525. 
 
 Commonwealth v. Dudley, 518. 
 
 Commonwealth v. Perkins, 562. 
 
 Commonwealth v. Roxbury, 485, 519. 
 
 Commonwealth v. Weatherhead, 130. 
 
 Compare Valley v. Small, 504. 
 
 Compton v. McMahon, 410. 
 
 Compton v. Milton, 633. 
 
 Comstock v. Comstock, 615. 
 
 Comstock v. Smith, 554, 622. 
 
 Conant r. Little, 85, 106. 
 
 Conant v. Smith, 197. 
 
 Concord P.k. v. Bellis, 515, 558. 
 
 Concord Ins. Co. v. Woodbury, 248. 
 
 Condert v. Cohn, 134. 
 
 Condict v. King, 397. 
 
 Condon v. Barr, 170. 
 
 Condon r. Maynard, 278. 
 
 Condon v. Morgan, 504. 
 
 Conduit v. Ross, 626. 
 
 Cone r. HufTon, 579. 
 
 Conedy v. Marcy, 527. 
 
 Conger v. Lowe, 302. 
 
 Congleton v. Pattison, 147. 
 
 Congregational Meet. House v. Hilton, 
 135. 
 
 Cong. Mem. Ch. Lat. Day Saints v. 
 Wilson, 575. 
 
 Congregational Soc. v. Rix, 139. 
 
 Congregational Soc. v. Stark, 30. 
 
 Coniswna & N. .W. Co. v. State, 455. 
 
 Con key v. Rex, 238. 
 
 Conklin v. Foster, 66. 
 
 Conlan v. Doull, 647. 
 
 Connaughton v. Sands, 122. 
 
 Connecticut v. Jackson, 270. 
 
 Connecticut Mut. Life Ins. Co. v. Skin- 
 mon, 248. 
 
 Conneticut Mut. Life Ins. Co. v. Skin- 
 ner, 321. 
 
 Connecticut Mut. Life Ins. Co. v. 
 United States, 151. 
 
 Connell v. Connell, 586. 
 
 Connelly v. Doe, 576. 
 
 Conner r. Bradley, 150. 
 
 xlix
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Conner v. \Vhitmore, 240, 247. 
 
 (.unner f. Withers, 599. 
 
 Conoery v. Brooke, 591. 
 
 Connor v. Shepard, 62, 86. 
 
 Conover v. Porter, 553. 
 
 Conover v. Van Mater, 200. 
 
 Conrad v. Druids Grand Grove, 625. 
 
 Conrad v. Harrison, 290. 
 
 Consolidated Co. r. Peers, 17. 
 
 Consolidated, etc., Min. Co. v. Lebanon 
 
 Min. Co., 515. 
 
 Constant v. Am. Baptist Society, 586. 
 Constant f. Matteson, 384. 
 Constant v. University of Rochester, 586. 
 Continental Title & Trust Co. v. Devlin, 
 
 242. 
 
 Conway v. Alexander, 228, 231. 
 Cooghan t r . Ackershausen, 406. 
 Coogler v. Rogers, 504. 
 Cook v. Babcock, 493, 495. 
 Cook v. Bauder, 217. 
 Cook v. Brown, 577, 578. 
 Cook v. Brightley, 242, 461. 
 Cook v. Champlain Co., 66. 
 Cook v. Coltin, 53. 
 Cook v. Colyer, 233. 
 Cook v. Cook, 57. 
 Cook v. Cooper, 16, 243. 
 Cook v. Couch, 31, 118. 
 Cook v. Ellington, 373. 
 Cook v. Fisk, 105. 
 Cook v. Gerard, 304. 
 C'ook v. Hammond, 115, 293. 
 Cook v. Klenk, 166, 170. 
 Cook v. Kraft, 217. 
 Cook v. McChristian, 123. 
 Cook v. McKinney, 493. 
 Cook v. Moore, 560. 
 Cook v. Prigden, 467. 
 Cook v. Rounds, 247. 
 Cook v. Linnamon, 562. 
 Cook v. Stearns, 466. 
 Cook v. Toxley, 157. 
 Cook v. Trimble, 217. 
 Cook v. Winchester, 633. 
 Cooke v. Neilson, 164. 
 Cookson -v. Richardson, 368. 
 Coolidge i'. Melvin, 529, 566. 
 Coombs v. Anderson, 45, 189, 
 Coombs ?'. Jackson, 25. 
 Coombs v. Jordan, 262. 
 Coombs v. Parsons, 496. 
 Coombs v. Unknown Per., 195. 
 Coombs v. Young, 85. 
 Coon v. Bean, 204. 
 Coon v. Brecket, 208. 
 Cooper v. Adams, 163. 
 Cooper v. Burns, 514. 
 Cooper v. Cooper, 181, 321. 
 Cooper v. Davis, 265. 
 Cooper v. Toss, 253. 
 Cooper v. Fox, 186 
 Cooper v. King, 251. 
 Cooper v. Loughlin, 273. 
 Cooper v. Merritt, 220. 
 Cooper v. Newland, 250. 
 Cooper v. Ryon, 275, 279. 
 Cooper v. Ulman, 251. 
 Cooper v. Watson, 624. 
 Cooper v. Whitney, 88. 
 Cooper v. Wyatt, 140. 
 Cooper Grocery Co. v. Peter, 124. 
 
 1 
 
 Cooler v. Dearborn, 494, 495. 
 
 Cope v. Cope, 288. 
 
 Cope v. Mecks, 558. 
 
 Cope v. Wheeier, 281. 
 
 Copeland v. Burkett, 85. 
 
 Copeland v. Copeland, 510. 
 
 Copeland v. Mercantile Ins. Co., 569. 
 
 Copeland v, Stevens, 140. 
 
 Copeland v. Yaakum, 266. 
 
 Copley v. Riddle, 521. 
 
 Coppage v. Alexander's Heirs, 204. 
 
 Coquard v. Pearce, 75. 
 
 Corbet v. Laurens, 56. 
 
 Corbet v. Stone, 297. 
 
 Corbin v. Cannon, 186. 
 
 Corbin v. Dale, 430. 
 
 Corbin v. Healy, 592, 609. 
 
 Corbin v. Jackson, 193. 
 
 Corby v. Corby, 31, 373. 
 
 Corcoran v. Nailor, 443. 
 
 Cordes v. Miller, 146. 
 
 Cordon v. Sizer, 497. 
 
 Cordova v. Hood, 217. 
 
 Core v. Faupel, 492; 498. 
 
 Corey v. Moore, 574. 
 
 Corey v. The People, 85. 
 
 Corless v. Oxford, 207. 
 
 Corley v. Parton, 188. 
 
 Corlies v. Howland, 217, 218. 
 
 Corning v. Gould, 154, 429. 
 
 Corning v. Troy Iron Fac., 559, 595. 
 
 Cornish v. Trees, 123, 514. 
 
 Cornelius v. Ivins, 207. 
 
 Cornelius v. Smith, 374. 
 
 Cornell v. Lamb, 25, 459. 
 
 Cornell v. Jackson, 622. 
 
 Cornell v. Whitney, 202. 
 
 Cornett v. Purdy, 429. 
 
 Cornog v. Fuller, 264. 
 
 Cornall v. Evil], 233. 
 
 Cornwall v. Wulff, 33, 298. 
 
 Corpman v. Baccastow, 583. 
 
 Corrothers v. Jolliffe, 197. 
 
 Corrough v. Hamill, 220. 
 
 Cortelyou v. Van Brundt, 598. 
 
 Cortelyou v. Hathaway, 245. 
 
 Corwithe v. Griffing, 194. 
 
 Cosby v. Honaker, 565. 
 
 Costello v. Edson, 495, 504. 
 
 Costello v. Graham, 593. 
 
 Costello v. Meade, 264. 
 
 Coster v. Clark, 86, 88. 
 
 Costigan v. Gould, 576. 
 
 Caswell v. Districh, 160. 
 
 Cote v. Jones, 273. 
 
 Coterell v. Long, 228. 
 
 Cottee v. Richardson, 139. 
 
 Cotter v. Layer, 417, 647. 
 
 Cotterell v. Dutton. 505. 
 
 Cotting v. Schermeshom, 399. 
 
 Cottle v. Young, 601. 
 
 Cotton v. Ward, 621. 
 
 Cottell v. Adams, 250, 251. 
 
 Cottrell v. Long, 231, 233. 
 
 Cottrell v. Shepard, 253. 
 
 Couch -v. Eastham, 30. 
 
 Couch v. Stratton, 117. 
 
 Coudert v. Earl, 179. 
 
 Coudert v. Savre, 433. 
 
 Coulding v. Bunster, 253. 
 
 Coulter v. Holland, 105. 
 
 Coulton v. Colton, 373.
 
 TABLE QV CASES CITED. 
 
 [References are to Sections.] 
 
 Council Bluffs Lodge v. Bullards, 256. 
 
 Counden v. Clerke, 312. 
 
 County of Henry v. Bradshaw, 576. 
 
 Coura'nd v. Vollmer, 572. 
 
 Coursey v. Davis, 306. 
 
 Cousins v. Wall, 368. 
 
 Coutcher v. Muir's Exr., 233. 
 
 Covendale v. Aldrich, 420. 
 
 Cover v. Black, 583. 
 
 Cowden v. St. John, 16. 
 
 Condrey v. Coit, 819. 
 
 Cowell v. Colo. Springs Co., 240. 
 
 Cowell -v. Lumley, 146, 151. 
 
 Cowen v. Alsop, 368. 
 
 Cowfelt v. Bower, 217. 
 
 Cowles v. Cowles, 297, 302. 
 
 Cowling v. Higginson, 438. 
 
 Cowman v. Hall, 88. 
 
 Cox v. Anderson's Admr., 392. 
 
 Cox v. Boyce, 88. 
 
 Cox v. Clough, 447. 
 
 Cox v. Edward, 548. 
 
 Cox v. Freedley, 597, 601. 
 
 Cox i'. Hoxie, 263. 
 
 Cox v. Jagger, 85. 
 
 Cox v. James, 601. 
 
 Cox v. Ledward, 242. 
 
 Cox v. Levison, 465. 
 
 Cox v. Matthews, 448, 481. 
 
 Cox v. McBurney, 184. 
 
 Cox v. McMullen, 593. 
 
 Cox v. Sims, 408. 
 
 Cox v. St. Louis, M. & S. E. Ry. Co., 
 
 467. 
 
 Cox v. Strode, 625. 
 Cox v. Voght, 582. 
 Cox v. Wayne, 582. 
 Cox v. Wayt, 574. 
 Cox v. Wells, 558. 
 Cox v. Wheeler, 257, 284. 
 Coy v. Gaze, 629. 
 Coyler v. Finch, 214. 
 Cracken r. Jones, 497. 
 Craddock v. Am. Freehold, 279. 
 Craft v. Webster, 251. 
 Crafts v. Crafts, 197, 236. 
 Crafts v. Hilbard, 590. 
 Craig r. Ambrose, 30, 301. 
 Craig i: Hawkins, 595. 
 Craig 7'. Pinsm, 573. 
 Craig v. Secrist, 638. 
 Craig r. Tappin, 263, 522. 
 Craighead v. Given, 642. 
 Crain v. McGoon, 254. 
 Crain v. Wright, 31. 
 Cramer v Burton, 590. 
 Cramer v. Hoose, 307. 
 Crance v. Collenbaugh, 619. 
 Crane v. Bonnell, 231, 233. 
 Crane v. Brigham, 15. 
 Crane v. Deming, 236. 
 Crane v. March, 251. 
 Crane v. Marsh, 239. 
 Crane v. Murry, 160. 
 Crane v. Palmer, 94, 217. 
 Crane v. Reeder, 559, 573. 
 Crane v. Turner, 584. 
 r-aveling v. West End Iron Co., 148. 
 Cravens v. Falconer, 633. 
 Oiwford v. Chapman, 147. 
 Crawford v. F.dwards, 253. 
 Crawford v. Forest Oil Co., 64. 
 
 Crawford v. Kirksey, 368. 
 
 Crawford v. Meis, 54, 301. 
 
 Crawford v. Munford, 246. 
 
 Crawley v. Blackman, 300. 
 
 Craycroft v. Craycroft, 642. 
 
 Creath v. Dale, 126. 
 
 Creech v. Crockett, 170. 
 
 Creekmire v. Creekmire, 492, 496. 
 
 Crenshaw v. Foster, 631. 
 
 Cresap v. Cresap, 298, 408. 
 
 Cresap v. Huston, 493. 
 
 Cresfield v. Storr, 316. 
 
 Cresinger v. Welch, 556. 
 
 Cresson v. Miller, 559. 
 
 Cresson v. Stout, 15. 
 
 Crest v. Jacks, 190. 
 
 Crews v. Threadgill, 231. 
 
 Cribs v. Soule, 257. 
 
 Crigler v. Mexico, 559. 
 
 Crim v. Nelms, 126. 
 
 Cripoen v. Chappel, 257. 
 
 Crippen v. Morrison, 15. 
 
 Criscoe v. Hambrick, 195. 
 
 Crissfield v. Storr, 297, 625. 
 
 Crisoin v. Hannavan, 504. 
 
 Criswell v. Grumbling, 51, 562. 
 
 Crittenden v. Johnson, 89. 
 
 Crittenden v. Woodruff, 92. 
 
 Croade v. Ingraham, 85, 97. 
 
 Croesdale v. Von Borgoburg, 191. 
 
 Crocheron v. Jaques, 375. 
 
 Crockett v. Crockett, 62. 
 
 Crockett v. Althouse, 157. 
 
 Croft v. Bunster, 253. 
 
 Croft v. Croft, 634. 
 
 Crombie v. Rosenbach, 242. 
 
 Cromie v. Hoover, 18. 
 
 Cromie's Heirs v. Louisville Home Soc.. 
 
 641. 
 
 Crompe y. Barrow, 414. 
 Crommelin v. Thiess, 139. 
 Cromwell v. Bank of Pittsburg, 280. 
 Cromwell v. Tate, 572. 
 Cromwell v. Woolly, 634. 
 Cronin v. Richardson, 603. 
 Crooker v. Crocker, 273. 
 Crocker v. Frazier, 239. 
 Crooker v. Holmes, '236. 
 Crop v. Norton, 373. 
 Crosby v. Bradbury, 592. 
 Crosby v. Crosby, 301. 
 Crosby v. Hillner, 576. 
 Crosby v. Huston, 282. 
 Crosby v. Loon, 149. 
 Crosby v. Wadsworth, 563. 
 Crosland v. Rogers, 432. 
 Cross v. Carson, 207. 
 Cross v. Morristown, 601. 
 Cross v. Robinson, 254. 
 Croston v. Male, 307. 
 Crouch v. Colbert, 493. 
 Crouch v. Puryear, 64. 
 Crouch v. Wabash, 208. 
 Crow v. Mark, 191. 
 Crow v. Tinslev. 239. 
 Crowell v. Woodbury, 197. 
 Crowley v. Crowley, 367. 
 Crowley v. Riggs, 219. 
 Crowning v. Cox, 277. 
 Croxall v. Shererd, 301, 322. 
 Crozier v. Bray, 394, 408. 
 Cruger v. Halliday, 377.
 
 TABLE OP CASES CITED. 
 
 [References are to Sections.] 
 
 Cruger v. McLaury, 207, 461. 
 
 Crump v. Norwood, 86, 316. 
 
 Crutcher r. Crutcher, 635. 
 
 Cubitt v. Porter, 450. 
 
 Cuillip r. Randall, 165. 
 
 Cullen f. Motzer, 186. 
 
 Cullin f. Sprigg, 605. 
 
 Culhvick v. Swindell, 15. 
 
 Culver v. Rhodes, 495, 498. 
 
 Culvrrhouse v. Worts, 160. 
 
 Cumberland v. Codington, 288. 
 
 Cumberland r. Graves, 371. 
 
 Cummings v. Bramhall, 642. 
 
 Cummings v. Cassily, 553. 
 
 Cummin.irs r. Cummings, 117, 640. 
 
 Cummings v. Shaw, 52, 408. 
 
 Cummings T. Smith, 458. 
 
 Cummins r. Woodruff, 572. 
 
 Cunday v. Hall, 185. 
 
 Cunningham v. Bell, 367. 
 
 Cunningham v. Hawkins, 247. 
 
 Cunningham v. Holton. 168. 
 
 Cunningham v. Houlton, 162. 
 
 Cunningham v. Holton, 162. 
 
 Cunningham v. Knight, 97. 
 
 Cunningham r. Thornton, 590. 
 
 Curl t. Lowell, 163. 
 
 Curie v. Barrel!, 521. 
 
 Currier v. Barker, 134, 168. 
 
 Currier v. Gale, 247, 254. 
 
 Currier r. Perley, 168. 
 
 Currier r. Sutherland, 126. 
 
 Currier v. Woodward, 123. 
 
 Curtin v. Patten, 557. 
 
 Curtis 7'. Board of Education, 205. 
 
 Curtis v. Boquillas Land & Cattle Co., 
 
 503. 
 
 Curtis v. Cutler, 272. 
 Curtis r. Flinn, 236. 
 Curtis v. Fowler, 30, 301. 
 Curtis v. Galvin, 163. 
 Curtis v. Gardner, 608. 
 Curtis v. Hobart, 107. 
 Curtis f. Keesler, 429. 
 Curtis v. La Grande Water Co., 447, 
 
 498. 
 
 Curtis v. Leasia, 9. 
 Curtis v. Lyman, 259. 
 Curtis v. Miller, 155. 
 Curtis v. Moore, 277, 287. 
 Curt's v. Norton, 606. 
 Curtis v. Poland, 190. 
 Curtis v. Rice, 322. 
 Cusack 7 F . Tweedy, 577. 
 Cushing v. Ayer, 285. 
 Gushing v. Blake, 362. 
 Cushing v. Hurd, 239, 585. 
 Cushing v. Thompson, 248. 
 Cushman r. Blanchard, 614. 
 Cusham v. Luther, 236. 
 Cusham v. Smith, 525. 
 Cutler v. Davenport, 519. 
 Cutler v. Doughty, 397. 
 Cutler v. Tames, 581. 
 Cutler v. Tufts, 608. 
 Cutter v. Cambridge, 495. 
 Cutting v. Carter, 68. 
 Cutler v. Dickinson, 232. 
 Ciiyler v. Bush, 494. 
 Cuyler v. Bradt, 176. 
 
 lii 
 
 Dacoway v. Gait, 585. 
 
 Dadmun v. Lamson, 247, 505. 
 
 Daggar v. Taylor, 217. 
 
 Daggett v. Rankin, 260. 
 
 Dahl v. Stakke, 615. 
 
 Dahlberg v. Haeberle, 435. 
 
 Dailey v. Beck, 6:26. 
 
 Dakin v. Allen, 166. 
 
 Dale v. Thurlow, 573. 
 
 Dalton v. Dalton, 57. 
 
 Daly v. Wise, 151. 
 
 Damainville v. Mann, 139. 
 
 Dame i. Dame, 9, 164. 
 
 Danne v. Trustees, 166. 
 
 Damron v. Damron, 431, 651. 
 
 Dameron v. Eskridge, 277. 
 
 Dana v. Jackson, 598. 
 
 Dana v. Middlesex Bank, 592. 
 
 Dana v. Murray, 304. 
 
 Dana v. Valentine, 452. 
 
 Dand v. Kingscotte, 608. 
 
 Danforth v. Beattie, 566. 
 
 Danforth v. Smith, 108. 
 
 Daniels r. Brown, 160. 
 
 Daniels v. Eisenlord, 237. 
 
 Daniels v. Mutual Ben. Ins. Co., 276. 
 
 Daniels v. Pond, 2, 65. 
 
 Danley v. Hays, 251. 
 
 Danner v. Shissler, 479. 
 
 Dawson v. Shirley, 570. 
 
 Danzien v. Boyd, 603. 
 
 Darby v. Darby, 185. 
 
 Darby v. Hays, 251. 
 
 Darby v. Mayer, 519. 
 
 Darcy v. Askwith, 64. 
 
 D'Arcy v. Blake, 87. 
 
 D'Arcy v. Martyn, 130. 
 
 Dark v. Johnson, 3, 465. 
 
 Darley v. Darley, 648. 
 
 Darling v. Chanman, 354. 
 
 Darlington 7'. Painter, 435. 
 
 Darrah r. Baird, 18. 
 
 Darrow 7 r . Calkins, 184. 
 
 Dart v. Dart, 547. 
 
 Dartmouth College v. \Voodward, 456. 
 
 Dashiell r. Atty. Gen., 641. 
 
 Daswell v. De La Lanza, 492. 
 
 Daubenspeck -v. Platt, 229. 
 
 Daughady v. Paine, 217. 
 
 Daughdrill v. Sweeney, 266. 
 
 Daugherty v. McColgan, 269. 
 
 Dave v. Johnson, 405. 
 
 Davenport v. Eskew, 321. 
 
 Davenport v. Farrar, 87. 
 
 Davenport v. Ins. Co., 248. 
 
 Davenport v. Lamb, 622. 
 
 Davenport v. Lamson, 438. 
 
 Davenport v. Ledring, 498. 
 
 Davenport v. Murray, 217. 
 
 Davenport v. Tarpin, 510. 
 
 Davenport i'. Tyrrel, 507. 
 
 Davey v. Littlejohn, 583. 
 
 Davjd v. David, 197. 
 
 David Heiser v. Rhodes, 445. 
 
 Davidson v. Bates, 301, 640. 
 
 Davidson v. Beatty, 493. 
 
 Davidson v. Cooper, 553, 554. 
 
 Davidson v. Cowan, 260, 583. 
 
 Davidson v. Davidson, 321. 
 
 Davidson v. Davis, 121.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.'] 
 
 Dav 
 Dav 
 
 dson v. Hutchms, 301, 64 
 dson r. Johnston, 526. 
 
 Dav 
 
 dson v. ' Manson, 49. 
 
 Dav 
 
 dson v. Richmond, 86. 
 
 Dav 
 
 dson v. Young, 510. 
 
 Dav 
 
 ess f. Speed, 354, 542. 
 
 Dav 
 
 ny v. Hartshorn, 54. 
 
 Dav 
 
 son v. Ramsay, Co., 531. 
 
 Dav 
 
 s v. Andrews, 123, 558. 
 
 Dav 
 
 s v. Lean, 269. 
 
 Dav 
 
 s v. Bechstein, 253. 
 
 Dav 
 
 s ;. Bowmar, 492. 
 
 Dav 
 
 s f. Brandon, 572. 
 
 Dav 
 
 s ?. Buffam, 133. 
 
 Dav 
 
 s :. Buford's Exrs., 399. 
 
 Dav 
 
 s f. Burrell, 173. 
 
 Dav 
 
 s c'. Burroughs, 494. 
 
 Dav 
 
 s r. Christian, 383. 
 
 Dav 
 
 s v. Clark, 62. 
 
 Dav 
 
 s v. Cooper, 554. 
 
 Dav 
 
 s v. Cornelius, 100. 
 
 Dav 
 
 s v. Cross, 577. 
 
 Dav 
 
 s v. Darrow, 86. 
 
 Dav 
 
 s v. Davis, 76, 237. 
 
 Dav 
 
 s v. Eyton, 59, 140. 
 
 Dav 
 
 s v. Fox, 560. 
 
 Dav 
 
 s f. Gilliam, 61. 
 
 Dav 
 
 s v. Hendricks, 653, 
 
 Dav 
 
 s v. Handy, 606. 
 
 Dav 
 
 s v. Hess, 604. 
 
 Dav 
 
 s v. Higgins, 494, 574. 
 
 Dav 
 
 s v. Hollingsworth, 37. 
 
 Dav 
 
 s v. Jernigan, 201. 
 
 Dav 
 
 s v. Judd, 572. 
 
 Dav 
 
 s :'. Mason, 79. 
 
 Dav 
 
 s v. McGrew, 567. 
 
 Dav 
 
 s v. Morris, 139. 
 
 Dav 
 
 es v. Myers, 54. 
 
 Dav 
 
 s v. Ney, 373. 
 
 Dav 
 
 s r. Norton, 309. 
 
 Dav 
 
 s v. Polland, 243, 246. 
 
 Dav 
 
 s v. Rock Creek, 368. 
 
 Dav 
 
 s v. Rogers, 634. 
 
 Dav 
 
 s v. Sawyer, 190. 
 
 Dav 
 
 s v. Shroud, 494. 
 
 Dav 
 
 s v. Smith, 161. 
 
 Dav 
 
 s v. Taul, 642. 
 
 Dav 
 
 s v. Thompson, 59. 
 
 Dav 
 
 s v. Thurston, 162. 
 
 Dav 
 
 s v. Townsend, 50, 100. 
 
 Dav 
 
 s -. Walker, 105, 109. 
 
 Dav 
 
 s v. Wetherell, 258, 275. 
 
 Dav 
 
 s v. Williams, 310. 
 
 Dav 
 
 s v. Wilson, 307. 
 
 Dav 
 
 s v. Winn, 284. 
 
 Dav 
 
 s Sewing Machine Co. i 
 
 556. 
 
 Davis Sew. M. Co. v. Whitney, 127. 
 Davone v. Fanning, 279. 
 Dawson v. Girard L. Ins. Co., 217. 
 Dawson v. Morton, 87. 
 Dawler v. Rodes, 645. 
 Dawson z'. Shirley, 570. 
 Day v. Adams, 573, 590. 
 Day f. Caton, 450. 
 Day v. Cochrane, 80. 
 Day v. Day, 635. 
 Day v. Dunham, 229. 
 Day r. Watson, 153. 
 Day v. Walden, 433. 435. 
 Dayton v. Stewart, 577. 
 Deakins v. Hollis, 634. 
 
 Deal v. Palmer, 13. 
 
 Dean v. Bailey, 74. 
 
 Dean v. Fuller, 573. 
 
 Dean v. Mitchell, 88. 
 
 Dean v. Shelly, 623. 
 
 Dean v. Tucker, 498. 
 
 Dean v. Wilcoxon, 504. 
 
 Deane v. Erskine, 595. 
 
 Deane v. Gregory, 158. 
 
 Deane v. Gay, 559. 
 
 Deare v. Carr, 276. 
 
 De Arguello v. Bours, 553. 
 
 Dearing v. Thomas, 126. 
 
 Deaver v. Deaver, 547. 
 
 Deaver v. Parker, 239. 
 
 Deaver r. Rice, 160. 
 
 Deavitt v. Judevine, 285. 
 
 De Berrera v. Frost, 245. 
 
 Debow v. Col fax, 59. 
 
 De Bruhl v. Maas, 219. 
 
 De Camp v. Hall, 642. 
 
 Decker v. Livingston, 149. 
 
 Deconche v. Savetier, 498. 
 
 Dee v. King, 449. 
 
 Deem v. Phillips, 554. 
 
 Deemer v. Kessinger, 321. 
 
 Deery v. Cray, 552. 
 
 Deffeliz v. Pico, 126. 
 
 De Forrest v. Byrne, 147. 
 
 De Forest v. Fulton Ins. Co., 248. 
 
 De Forest v. Holum, 218. 
 
 De France v. De France, 231. 
 
 De France v. Johnson, 95. 
 
 Defellse v. Lake, 54. 
 
 De Gray v. Richardson, 80. 
 
 De Haro r. U. S., 465. 
 
 De Haven v. Laudell, 275. 
 
 De Haven v. Mussleman, 285. 
 
 Deibler v. Barwick, 217. 
 
 De Lacey v. Tillman, 13. 
 
 Delafield v. Parish, 645. 
 
 Delahay v. McConnell, 228. 
 
 Dclaire v. Keenen, 232. 
 
 Dclancy v. Ganong, 148. 
 
 Dclaney v. Fox, 157. 
 
 Dclaney v. Root, 563. 
 
 Delano v. Wilde, 529. 
 
 Dclany v. Middleton, 301. 
 
 Delany v. Salina, 637. 
 
 Dclashman v. Barry, 130. 
 
 Delaunay v. Burnett, 522. 
 
 De Laurencel v, De Broom, 640. 
 
 De La Vega v. Butler, 504. 
 
 De La Vega v. League, 195. 
 
 Dclavergne v. Morris, 625. 
 
 Delmonico v. Guillaume, 185. 
 
 De Loach v. Delk, 160. 
 
 Deloney v. Hutchison, 176, 185. 
 
 Dekeman v. Arnold, 574. 
 
 Demarest v. Willard, 147, 149. 
 
 Demarest v. Wyncoop, 247, 2J7. 
 
 Demill v. Reid, 310, 640. 
 
 Deming v. Bullitt, 572. 
 
 Deming v. Colt, 184. 
 
 Deming v. Williams, 79. 
 
 De Mott v. Benson, 236. 
 
 Den v. Adams, 164. 
 
 Den v. Aweling, 407. 
 
 Don 7'. Demerest, 80, 321. 
 
 Den v. Dimon, 239, 258. 
 
 Den v. Drake, 164. 
 
 Den v. Flora, 481. 
 
 Hii
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Den v. Hauks, 548, 565. 
 
 Den v. Hay, 562. 
 
 Ikn r. Helmes, 609. 
 
 Den v. Howell, 163. 
 
 Den v. Hunt, -!!>:>. 
 
 Den r. Johnson, 134. 
 
 Den i'. Kenny. (>;'. 
 
 Den v. Kip, 498. 
 
 Den v. Manners, 385. 
 
 Den v. Mclntosli, 168. 
 
 Den v. Xeison, 47H. 
 
 Den v. Partee, 379. 
 
 Den v. Post, 139, 148. 
 
 Den v. Pukey, 312. 
 
 Den v. Richman, 583, 585. 
 
 Den v. Smith, 474. 
 
 Den v. Snitcher, 40. 
 
 Den v. Spinning, 254. 
 
 Den v. Stockton, 243. 
 
 Den v. Troutman, 380. 
 
 Dencpmb v. Duncomb, 86. 
 
 De Nichols v. Saunders, 245. 
 
 Dennett v. Atherton, 623. 
 
 Dennett v. Dennett, 296, 536. 
 
 Dennis v. Miller, 155, 168. 
 
 Dennett v. Pass., 461. 
 
 Dennett v. Penobscott Co., 166. 
 
 Dennick v. Cuddily, 246. 
 
 Dennick v. Ekdahl, 144. 
 
 Dennis v. Wilson, 608. 
 
 Dennison v. Reed, 148. 
 
 Denny v. Palmer, 236. 
 
 Denpree v. Denpree, 647. 
 
 Denson v. Beagley, 637. 
 
 Denson v. Mitchell, 408. 
 
 Denster v. McCarhus, 582. 
 
 Dentler v. State, 533. 
 
 Denton v. Donner, 368. 
 
 Denton v. Leddell, 428. 
 
 Dentzel v. VValdie, 524. 
 
 Denver & R. G. Co. v. Church, 2. 
 
 Denver & S. F. R. Co. v. School Dist., 
 
 576. 
 
 DC Pere Co. v. Reynen, 171. 
 Deputron v. Young, 494. 
 Derby v. "Taylor, 139. 
 Derry v. Derry, 367, 368. 
 Derry Bank v. Webster, 571. 
 Descarlett v. Dennett, 209. 
 Desloge v. Peace, 465, 466. 
 Despard v. Wallbridge, 157. 
 Detroit, etc., R. Co. v. Powers, 456. 
 Detweiler v. Breckenkamp, 255. 
 Detweiler v. Schuttheis, 503. 
 Deusch v. Questa, 74. 
 Devacht v. Newsam, 157. 
 Devecmon v. Shaw, 118, 393. 
 De Vaughn v. McLeroy, 301. 
 Development Co. of Ariz. v. Occidental 
 
 Oil Co., 367. 
 
 Devenbell v. Hamilton, 583. 
 Devin v. Eagleson, 260. 
 Devin v. Hendershott, 282, 624. 
 Devin v. Himer, 553. 
 Devinney v. Reynolds, 569. 
 Devore v. Sunderland, 614. 
 Devore r. Woodruff, 231. 
 Devyr v. Schaefer, 505. 
 Dew v. Kuehn, 31. 
 Dewey v. Kimball, 658. 
 Dewey v. Moyer, 368. 
 
 liv 
 
 Dewey v. National Bond & Security Co., 
 
 658. 
 
 Dewey v. Payne, 139. 
 Dewey v. Van Deusen, 240, 274. 
 Dewitt v. Eldred, 42, 45. 
 De Witt r. Middleton, 596. 
 De Witt v. Moulton, 581. 
 
 Dewitt 
 
 Dewitt 
 
 Dewitt 
 
 De Wo 
 
 Dexter 
 
 Dexter 
 
 Dexter 
 
 Pierson, 153. 
 Ring, 180. 
 San Francisco, 177. 
 
 f v. 
 
 Hayden, 623. 
 
 Arnold, 247. 
 Inches, 640. 
 
 King, 146. 
 Dexter v. Mauley, 144. 
 Dexter v. Shepard, 279. 
 Dey v. Dey, 368, 640. 
 Dey v. Dunham, 229, 584. 
 De Yampert i 1 . Brown, 257. 
 Dias v. Merle, 266. 
 Dibble v. Rogers, 510. 
 Dibrell v. Smith, 218. 
 Dick v. Mawry, 250. 
 Dickason v. Williams, 242. 
 Dickenson v. Chase, 219. 
 Dickenson r. Duck, 217. 
 Dickenson v. Duckworth, 255. 
 Dickenson 11. Gray, 113. 
 Dickerman v. Lust, 273. 
 Dickerson v. Bridges, 239. 
 Dickerson v. Small, 278. 
 Dicker! v. Weise, 278. 
 Dickey v. Kennedy, 384. 
 Dickey v. McCullough, 148. 
 .Dickey v. Thompson, 285. 
 Dickie v. Carter, 633. 
 Dickinson v. Bank, 294, 408. 
 Dickinson v. Brown, 521. 
 Dickinson v. Bruden, 494. 
 Dickinson v. Davis, 367. 
 Dickinson v. Dickinson, 6. 
 Dickinson v. Duckworth, 266. 
 Dickinson v. Fisher, 219. 
 Dickinson v. Glenney, 585. 
 Dickinson v. Godspeed, 167. 
 Dickinson v. Griggsville Nat. Bank, 408. 
 Dickinson v. Holmes, 624. 
 Dickinson v. Parvis, 642. 
 Dickinson v. Williams, 191. 
 Dickinson v. Worcester, 445. 
 Dickson v. Sledge, 511. 
 Dickson v. Todd, 273. 
 Diefendorf v. Diefendorf, 565. 
 Dientzer v. Bell, 126. 
 Dietrick v. Noel, 492. 
 Digman v. McCoIlum, 584. 
 Dike v. Miller, 578. 
 Dikeman v. Arnold, 576, 578. 
 Dill v. Bowen, 556. 
 Dilworth v. Gusky, 30. 
 Djlworth v. Mayfield, 185. 
 Dimond v. Billingslea, 94. 
 Dimond v. Bostick, 642. 
 Dingley v. Buffum, 18. 
 Dingley v. Dingley, 302. 
 Dinner v. Van Dyke, 264. 
 Dinsmore v. Matthews, 260. 
 Dinsmore v. Rowse, 258, 286. 
 Dippers v. Tunbrid<re Wells, 69. 
 Diver v. Diver, 187. 
 Dix v. Jaquay, 62, 320.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Dixfield v. Newton, 250. 
 
 Dixon v. Ahern, 129, 497. 
 
 Dixon v. Baty, 157. 
 
 Dixon v. Bentley, 307. 
 
 Dixon v. Cook, 496. 
 
 Dixon v. Doe, 583. 
 
 Dixon v. Finnegan, 134. 
 
 Dixon v. Niccolls, 149. 
 
 Dixon v. Saville. 87. 
 
 Doane v. Badger, 190. 
 
 Doane v. Doane, 54. 
 
 Doane v. Lake, 647. 
 
 Doane v. Wilcutt, 512, 592. 
 
 Dobbin v. Rex, 197. 
 
 Dobson v. Land, 248. 
 
 Dobson v. Racey, 279. 
 
 Docking v. Frazell, 16. 
 
 Dod v. Perryn, 302. 
 
 Dodd v. Acklon, 156. 
 
 Dodd v. Wakeman, 368. 
 
 Dodd v. Winship, 301, 640. 
 
 Dodge v. Cole, 368. 
 
 Dodge v. Dodge, 518. 
 
 Dodge v. Evans, 217, 218. 
 
 Dodge v. McClintock, 466. 
 
 Dodge v. Cotter, 259. 
 
 Dodge City Wat. & Light Co. v. Al- 
 
 fafa Irr. Co., 607. 
 Dodson v. Ball, 322. 
 Dodson v. Clark, 264. 
 Doe v. Ashburner, 135. 
 Doe v. Bank of Cleveland, 585. 
 Doe v. Barton, 247. 
 Doe v. Bateman, 139. 
 Doe v. Beardsley, 520. 
 Doe v. Beanclark, 387. 
 Doe v. Bedford, 529. 
 Doe v. Bell, 134. 
 Doe v. Benjamin, 135. 
 Doe v. Bevan, 140. 
 Doe v. Biggs, 360. 
 Doe v. Bird, 186. 
 Doe v. Blacker, 569. 
 Doe v. Bliss, 148. 
 Doe v. Bond, 148. 
 Doe v. Botts, 178. 
 Doe v. Brabant, 308. 
 Doe v. Briggs, 347. 
 Doe v. Burlington, 60. 
 Doe v. Carleton, 388. 
 Doe v. Carter, 140. 
 Doe v. Challis, 310. 
 Doe v. Charlton, 322. 
 Doe v. Collier, 360. 
 Doe v. Collis, 32, 22. 
 Doe v. Considine, 297. 
 Doe v. Cooper, 312. 
 Doe v. Cox, 164. 
 Doe v. Curlington, 66. 
 Doe v. David, 140. 
 Doe v. Dickson, 130. 
 Doe v. Dowall, 619. 
 Doe v. Dowdall, 514. 
 Doe v. Dunbar, 168. 
 Doe v. Eslava, 504. 
 Doe v. Ewart, 341. 
 Doe v. Fonnereau, 322, 301. 
 Doe v. Ford. 207. 
 Toe r. Gitnrse. 314. 
 Poe r. O'-rlin. 0(1 8. 
 
 I'.'- V. Glovrr. 208. 
 
 Lot w. Cwinncll, 105. 
 
 Doe v. Hales, 245. 
 
 Doe v. Hamfrey, 360. 
 
 Doe v. Harvey, 322. 
 
 Doe 11. Hawlss, 140. 
 
 Doe v. Hazel! , 168. 
 
 Doe v. Heneage, 392. 
 
 Doe v. Holmes, 701. 
 
 Doe v. Hull, 170. 
 
 Doe v. Humphries, 169. 
 
 Doe v. Ironmonger, 322. 
 
 Doe v. Jepson, 148. 
 
 Doe v. Jones, 157. 
 
 Doe v. Ladd, 371. 
 
 Doe v. Lea, 301. 
 
 Doe v. Lock, 608. 
 
 Doe v. Luxton, 47. 
 
 Doe v. Mace. 59. 
 
 Doe v. Masters, 150. 
 
 Doe v. Mcllvaine, 520. 
 
 Doe v. McKaeg, 163. 
 
 Doe v. Moore, 301. 
 
 Doe v. Morgan, 297. 
 
 Doe v. Morphett, 168. 
 
 Doe v. Murrell, 157. 
 
 Doe v. Naylor, 574. 
 
 Doe v. Nowell, 301. 
 
 Doe v. Oliver, 305. 
 
 Doe v. Palmer, 169. 
 
 Doe v. Passingham, 343. 
 
 Doe v. Patten, 31. 
 
 Doe v. Paul, 150. 
 
 Doe v. Peck, 208. 
 
 Doe v. Perryn, 301. 
 
 Doe v. Pett, 155. 
 
 Doe v. Phillipps, 148. 
 
 Doe v. Porter, 164. 
 
 Doe v. Prettyman, 556. 
 
 Doe v. Prigg, 301, 302. 
 
 Doe v. Prince, 163. 
 
 Doe v. Provoost, 301, 302. 
 
 Doe v. Rees, 157. 
 
 Doe v. Richards, 30. 
 
 Doe v. Ries, 135. 
 
 Doe v. Rivers, 87. 
 
 Doe v. Rooke, 413. 
 
 Doe v. Salkeld, 344. 
 
 Doe v. Scarborough, 385. 
 
 Doe v. Scuddamore, 81. 
 
 Doe v. Selby, 298. 
 
 Doe v. Sheffield, 642. 
 
 Doe v. Shelby, 310. 
 
 Doe v. Shipphard, 309. 
 
 Doe v- Smith, 168. 
 
 Doe v. Stevenson, 298. 
 
 Doe v. Thompson, 163. 
 
 Doe v. Tidbury, 157. 
 
 Doe v. Tunnel, 247. 
 
 Doe v. Turner, 59. 
 
 Doe v. Underdown, 642. 
 
 Doe v. Walker, 131. 
 
 Doe v. Watts, -164. 
 
 Doe v. Wilkinson, 168. 
 
 Doe v. Windlass, 150. 
 
 Doe v. Wood, 165. 
 
 Doe v. Worsley, 304. 
 
 Doherty v. Dolon, 220. 
 
 Doherty v. Matsell, 157, 300. 
 
 Dohl v. Stakke, 616. 
 
 Doidge r. Bowers. Ifi4. 
 
 Dolbear v. Worduft. 277. 
 
 Dole v. Hughes, 4 SO. 
 
 Dole v. Keyes, 640. 
 
 lv
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.'] 
 
 Dollard v. Roberts, 146. 
 
 Donahue r. McNichols, 399. 
 
 Donaldson v. Wilson, 146. 
 
 Donelson v. Polk, 139. 
 
 Donk Bros. Coal Co. f. Leavitt, 169. 
 
 Donley v. Hays, 251. 
 
 Donnell v. Clark, 426. 
 
 Donnelly v. Donnelly, 95. 
 
 Donnelly v. Eastes, 295. 
 
 Donnelly v. Edenlen, 403. 
 
 Donnelly v. Frick & Co., 146. 
 
 Donnels v. Edwards, 17<>. 
 
 Donnor v. Quartermas, 197. 
 
 Doody ?'. Pierce, 254. 
 
 Dooley v. Stringham, 66. 
 
 Dooley v. \Volcott. 580. 
 
 Dooiittle t'. Eddy, 160, 468. 
 
 Doolittle v. Holtpn, 528. 
 
 Dooiittle v. Lewis, 277. 
 
 Door v. School Dist., 49.-.. 
 
 Dorling v. Blandrard, 301. 
 
 Dorr v. Bates Mfg. Co., 441. 
 
 Don r. Hallaran, 210. 
 
 Dorr v. Lovering, 301, 312. 
 
 Dorr v. Reynolds, 590, 595. 
 
 Dorr v. School Dist., 495. 
 
 Dorrance v. Jones, 140. 
 
 Dorrill v. Johnson, 164. 
 
 Dorrow v. Calpins, 185. 
 
 Dorsey v. Dorsey, 272. 
 
 Dorsey v. Eagle, 58. 
 
 Dorsey v. Smith, 54. 
 
 Dortch v. Benton, 126. 
 
 Doswell v. De La Lanza, 504. 
 
 Dothard v. Denson, 492, 493. 
 
 Dotterer v. Pike, 368. 
 
 Doty v. Burdick, 173. 
 
 Doty v. Mitchell, 73. 
 
 Dougal v. Fryer, 512. 
 
 Dougherty v. McColgan, 236. 
 
 Doughty v. Owen, 14. 
 
 Douglas v. Dickson, 92. 
 
 Douglas v. Bishop, 255. 
 
 Douglass v. Cline, 245. 
 
 Douglass v. Cruger, 361, 382. 
 
 Douglass v. Darin, 240. 
 
 Douglass v. Sharpe, 408. 
 
 Douglass v. Shumway, 4. 
 
 Douglass v. Wiggins, 66. 
 
 Dougrey v. Topping, 100. 
 
 Doupe v. Gerrin, 146. 
 
 Douthit v. Hipp, 273. 
 
 Dow v. Dow, 85. 
 
 Dow v. Jewell, 193. 
 
 Dow v. McKenney, 497. 
 
 Dowd r. Tucker, 368. 
 
 Dowdell v. Orphans' Home, 495.. 
 
 Dowell v. Dew, 417. 
 
 Dowletts r. Daniel, 548. 
 
 Dowling v. Reber, 301, 304. 
 
 Downer v. Wilson, 255, 258. 
 
 Downes v. Grazebrook, 279. 
 
 Downes v. Turner, 208. 
 
 Downey v. Strause, 190. 
 
 Downing T. Houtshon, 54. 
 
 Downing v. Marshall, 641, 642. 
 
 Downing v. Palmeteer, 262. 
 
 Downing v. Wherrin, 396. 
 
 Doyle v. Dovle, 642. 
 
 Doyle i>. Robbing, 76. 
 
 Doyle v. Mullady, 397. 
 
 Doyle v. Peerless Pet. Co., 515. 
 
 Ivi 
 
 Doyle v. White, 236. 
 
 Doyley v. Atty. Gen., 378. 
 
 Dozier v. Gregory, 66. 
 
 Dozier v. Toalson, 80. 
 
 Drake r. Drake, 412. 
 
 Drake v. Moore, 123. 
 
 Drake v. Root, 243. 
 
 Drake v. Wells, 4, 537. 
 
 Drane z: Gregory, l!t:s. 
 
 Drane v. Gunter, 282. 
 
 Draper v. Shoot, 495. 
 
 Drayton v. Marshall, 247, 276. 
 
 Dreiske v. Lumber Co., 18. 
 
 Dresser v. Dresser, 373. 
 
 Drew v. Billings Drew Co., 156, 168. 
 
 Drew v. Rust, 287. 
 
 Drew v. Swift, 595. 603. 
 
 Drew v. Morrill, 247. 
 
 Drew v. Wakefield, 641. 
 
 Dreyfus v. Hirt, 149. 
 
 Drinan v. Nichols, 278. 
 
 Drinkard v. Hempinstnll, 1CS. 
 
 Drinkwater v. Drinkwater, 149. 
 
 Drown v. Smith, 61, 543. 
 
 Druid Park, etc. Co. r. Dettinger, 375. 
 
 Drummond v. Richards, 236. 
 
 Drummond r. Sant, 247. 
 
 Drury v. Clark, 273. 
 
 Drury v. Drury, 117. 
 
 Drury v. Foster, 653. 
 
 Drury v. Tremont Imp. Co., 253, 565. 
 
 Dubois v. Bank, 243. 
 
 Dubois r. Beaver, 8. 
 
 Dubois v. Bowles, 243. 
 
 Dubois v. Hull, 217. 
 
 Dubois v. Kelly, 18, 133. 
 
 Dubuque R. R. 7'. Litchfield, 519. 
 
 Dubs v. Dubs, 79, 348. 
 
 Duck v. Sherman, 239. 
 
 Ducker v. Belt, 273. 
 
 Ducker v. Del Genovese, 143. 
 
 Duckland r. Rosseau, 243. 
 
 Duckworth v. Jordan, 642. 
 
 Dudley v. Bergen, 257, 258. 
 
 Dudley v. Davenport, 106. 
 
 Dudley v. Hurst, 13. 
 
 Duffer v. Wilson, 157. 
 
 Duffield v. Duffield. 301. 
 
 Duffield v. ,ITne, 208, 592. 
 
 Duffield v. Morrows. 637. 
 
 Duffy v. Calvert, 383. 
 
 Duffy v. N. Y. etc.. R. R., 626. 
 
 Duffy v. Willis, 127. 
 
 Dufour v. Percira, 644. 
 
 Dugan v. Hollins, 199. 
 
 Duhring v. Dulirini;, 86. 
 
 Duke v. Brandt. 85. 
 
 Duke v. Dyches, 631. 
 
 Duke v. Harper. 157, 163. 
 
 Dukes v. Spangler, 577. 
 
 Dulaney v. Middleton, 302. 
 
 Dumey v. Schaeffer, 204. 
 
 Dummerston r. Newfae, 85. 
 
 Dumont v. Dumont, 637. 
 
 Dumont v. Kellogg, 444. 
 
 Dumper v. Symmons. 141. 
 
 Dunbrock v. Neall, 248. 
 
 Duncan v. Central Pas. R. R. Co., 433. 
 
 Duncan v. City. 102. 
 
 Duncan v. Dick, 110. 
 
 Duncan v. Duncan. 118. 
 
 Duncan v. Forrer. 176.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Duncan v. Hodges, 553. 
 
 Duncan v. Jandon, 368. 
 
 Duncan v. Moore, 126. 
 
 Duncan v. Smith, 242. 
 
 Dunch v. Kent, 383. 
 
 Dunck Co. v. Webber, 135, 14 
 
 Duncome v. Felt, 02. 
 
 Duncon v. Asphalt Co., 275. 
 
 Dundas v. Bowler, 241). 
 
 Dundas v. Hitchcock, 558. 
 
 Dunham v. Osborne, SO, 291. 
 
 Dunham v. Railway Co., 238. 
 
 Dunham v. Williams, 601. 
 
 Dunklee v. Adams, 237. 
 
 Dunklee v. Wilton R. R., 591. 
 
 Dunkley v. Van Buren, 270. 
 
 Dunlap v. Burnett, 583. 
 
 Dunlop v. Dunlop, 645. 
 
 Dunlop v. Richards, 368. 
 
 Dunn v. Bk. of Mobile, 388. 
 
 Dunn v. Bryan, 02. 
 
 Dunn v. Cartwright, 130. 
 
 Dunn v. Games, 562. 
 
 Dunn v. Meriweather, 629. 
 
 Dunn v. Raley, 228. 
 
 Dunn v. Rodgers, 253. 
 
 Dunn v. Rothermel, 134. 
 
 Dunn v. Stevers, 558. 
 
 Dunn v. Stowers, 637. 
 
 Dumming v. Dean Nat. Bank, 281. 
 
 Dunning v. Ocean Nat. Bk., 376. 
 
 Dunply v. Sullivan, 503. 
 
 Dunscomb v. Dunscomb, 79. 
 
 Dunsett v. Bank of U. States, 105. 
 
 Dunsmuir v. Port Angeles Water, etc., 
 
 Co., 12. 
 
 Dunton vt Brown, 556, 557. 
 Dunwoodie v. Reed, 310. 
 Dupon v. Walden, 505. 
 Dupuy v. Strong, 178. 
 Duquois v. Hull, 221. 
 Durand v. Tsaacks, 243. 
 Durando v. Durando, 294. 
 Durant v. Davis, 219. 
 Durel v. Boisvlance, 443. , 
 
 Duren v. Presberry, 595, 596. 
 Duren v. Sinclair, 504. 
 Durett v. Briggs, 218. 
 Durham v. Angier, 85, 101. 
 Durham v. Heirs of Daugherty, 218. 
 Denham v. Holeman, 493. 
 Durham v, Townsend, 497. 
 Durham v. Wick, 220. 
 Durland v. Seijer, 127. 
 Durrett v. Whiting, 275. 
 Durnter r. Musacchia, 197. 
 Dustin v. Cowdy, 173. 
 Dutton v. Rust, 604. 
 Dutton v. Stuart, 97. 
 Duty v. Graham. 236. 
 Duval v. Bibb, 217, 545. 
 Duval v. Marshall, 267. 
 Dwight v. Eastman. 302. 
 Dwinell v. Bliss, 576. 
 Dwinell v. Perley, 251. 
 Dye v. Cook, 125. 
 
 v. City of St. Paul, 448. 
 
 v. Clark, 86. 
 
 v. Dyer, 367. 
 
 v. San ford, 467, 608. 
 
 v. Shurtlieff, 279. 
 
 v. Toothaker, 254. 
 
 Dyer v. Wightman, 151. 
 
 Dyers v. Ins. Co., 248. 
 
 Dyett v. North Amer. Coal Co., 73, 
 
 348. 
 Dyett v. Pendleton, 153. 
 
 Eagle, etc., Co. v. Bank, 493. 
 
 Eagle Fire Ins. Co. v. Lent, 275. 
 
 Eaines v. Hardin, 231. 
 
 Eardley v. Granville, 3. 
 
 Earl of Darlington ?. Pulteney, 417. 
 
 Earl of Ross v. Waimnan, 3. 
 
 Earle v. Fiske, 588. 
 
 Earle v. Hosiery Co., 257. 
 
 Earnhardt v. Clement, 653. 
 
 Earnhart v. Earnhart, 322. 
 
 East v. Garrett, 45, 393. 
 
 Eastabrook v. Hapgood, 54. 
 
 Easterly v. Kemy, 370. 
 
 Eastern Milling Co. v. Eastern Export 
 
 Co., 248. 
 
 Eastern R. v. Allen, 495. 
 East Jersey Co. v. Wright, 17. 
 Eastman v. Batchelder, 237. 
 Eastman v. Foster, 251. 
 Eastman v. St. Anthony etc. Co., 590. 
 East Omaha Land Co. v. Jeffreys, 596. 
 Eastwood v. Crane, 053. 
 Eaton v. Barnes, 374. 
 Eaton v. Boston, etc., R. Co., 1. 
 Eaton v. Eaton, 550, 557. 
 Eaton v. Green, 231, 232. 
 Eaton v. Knowles, 253. 
 Eaton tj. Lyman, 625. 
 Eaton v. Simonds, 239, 257. 
 Eaton v. Smith, 590. 
 Eaton v. Tallmadge, 247. 
 Eaton v. Whiting, 220, 234. 
 Eaves v. Estes, 15. 
 Eberle v. Fisher, 85. 
 Ebert v. Gerding, 258. 
 Eberts v. Fisher, 195. 
 Ebrand v. Dancer, 367. 
 Echoles v. Hubbard, 493. 
 Echols r. Cheney, 569. 
 Ecke v. Fetzer, 147. 
 Eckerson v. Crippen, 429. 
 Eckman v. Eckman, 542. 
 Eckroyd v. Coggeshell, 205. 
 Edde- v. Burrus, 598. 
 Eddie v. Slimmons, 560. 
 Eddy v. Chace. 435. 
 Eddy v. St. Marks, 498. 
 Edelen v. Hardy, 633. 
 Edelstem v. Carlile, 503. 
 Edinger r. Bain, 125. 
 Edinger v. Heiser, 366. 
 Edington v. Harper, 228. 229. 
 Edgar v. Stevenson, 434. 
 Edge r. Worthington. 213. 
 Edgerton r. Page, 144, 153. 
 Edgerton .-. Wolf, 556. 
 Edgerton v. Young, 251. 
 Edmonds v. Crenshaw, 380. 
 Edsell r. Buchanan. 247. 
 Edso ?. Munsell, 505. 
 Edwards *'. Anderson, 217. 
 Edwards t-. Bibb. 307. 
 Edwards r Edwards. 221, 367. 
 Edwards, ex parte, 213. 
 
 Ivii
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Edwards v. Hale, 170, 171. 
 
 Edwards v. Latimer, 193. 
 
 Edwards v. McClung, 426. 
 
 Edwards v. McKernan, 238. 
 
 Edwards v. Mo. Kan., etc., Ry. Co., 260. 
 
 Edwards v. Pope, 524. 
 
 Edwards v. Slater, 405. 
 
 Edwards Exrs. v. Trumbull, 215, 584. 
 
 Edwards v. Thorn, 574, 581. 
 
 Edwards v. University, 498. 
 
 Edwards v. V'arick, 385. 
 
 Edwards v. Woodruff, 597. 
 
 Effinger v. Lewis, 493. 
 
 Efje v. Medlar, 494. 
 
 Efjcrton r. Brownlow, 331. 
 
 Ehle v. Brown, 583. 
 
 Ehrmann v. Hoskins, 640. 
 
 Ejghmer -'. Thayer, 191. 
 
 Eignmer v. Thayer, 191. 
 
 Eitel v. Foote, 533. 
 
 Ekey v. Inge, 496. 
 
 Ela v. Edwards, 633. 
 
 Elam r. Parkhill, 56, 300. 
 
 Elder v. Reed, 98. 
 
 Elder v. Kiel, 98. 
 
 Elder v. Robbin, 87. 
 
 Elder v. Rouse, 236. 
 
 Eldowers v. Eldowers, 388. 
 
 Eldridge v. Eldridge, 381. 
 
 Elkins v. Carsey, 301. 
 
 Ellen v. Ellen, 504. 
 
 Ellen Mutual L. & B. Co. v. Hass, 279. 
 
 Ellicott v. Welch, 94, 217. 
 
 Elliott v. Aiken, 146, 153. 
 
 Elliott v. Brent, 634. 
 
 Elliott v. Davis, 562. 
 
 Elliott v. Dycke, 493, 495. 
 
 Elliott v. Eddins, 532. 
 
 Elliott's Estate v. Wilson, 480. 
 
 Elliott v. Fitchburg, 444. 
 
 Elliott v. Maxwell, 231. 
 
 Elliott v. Patton, 266. 
 
 Elliott v. Pearl, 494, 495. 
 
 Elliott v. Sleeper, 558, 571. 
 
 Elliott v. Smith, 157. 
 
 Elliott v. Stone, 163. 
 
 Elliott v. Turner, 209. 
 
 Elliott v. Wood, 278. 
 
 Elliott v. Wright, 13. 
 
 Ellis v. Diddy, 100. 
 
 Ellis v. Davis, 122. 
 
 Ellis v. Hatfield, 482. 
 
 Ellis v. Hussey, 243. 
 
 Ellis v. Leek, 272. 
 
 Ellis v. Messervie, 253. 
 
 El'is v. Temple, 217. 
 
 Ellis v. Young, 586. 
 
 E'lison v. Ellison, 417. 
 
 Ells v. Mo. Pac. Ry., 578. 
 
 Ells v. Toneley, 583. 
 
 Ellsworth v. Central R. R., 576. 
 
 Ellsworth v. Cook, 80. 
 
 Ellsworth v. Lockwood, 278. 
 
 Elmendorf v. Carmichael, 519. 
 
 Elmendorf v. Taylor, 498. 
 
 Elmer v. Loper, 244, 269. 
 
 Elmore v. Marks, 577. 
 
 Elnell v. Universalist Gen. Convention. 
 
 641. 
 
 El Passo v. Bank, 559. 
 Elsea v. Adkins, 608. 
 Elsey v. Metcalf, 577. 
 Elston v. Chamberlain, 231. 
 
 Iviii 
 
 Elston v. Robinson, 123. 
 
 Elwell v. Burnside, 190. 
 
 Elwell v. Hinckley, 498. 
 
 Elwell v. Shaw, 569, 572. 
 
 Elwes v. Maw, 16. 
 
 Elwood v. Blackf., 558. 
 
 Elwood v. Klock, 97, 296. 
 
 Ely v. Ely, 221, 254. 
 
 Ely v. McGuire, 243. 
 
 Ely v. Pike, 382. 
 
 Ely v. Schofield, 261, 582. 
 
 Ely v. VVilcox, 582. 
 
 Emans v. Turnbull, 489. 
 
 Embree v. Ellis, 113. 
 
 Embrey v. Owen, 444. 
 
 Emerson v. European R. R., 238. 
 
 Emerson v. Mooney, 608. 
 
 Emerson v. Simpson, 202, 627. 
 
 Emery v. Chase, 541. 
 
 Emery v. Owings, 2:J(i. 
 
 Emison v. Risque, 221. 
 
 Emmanuel College v. Evans, 225 
 
 Emmert v. Hays, 472. 
 
 Emmons v. Murray, 557. 
 
 Einmons v. Scudder, 170. 
 
 Emmons v. Lowden, 275. 
 
 Emrich v. Gilbert, 125. 
 
 Enders v. Lasco, 373. 
 
 England v. Tarleton, 251. 
 
 English v. Behle, 33. 
 
 English v. Carney, 251. 
 
 English v. Marvin, 134. 
 
 English f. Ouster, 186. 
 
 English v. Russell, 217. 
 
 Ennis v. Harmony Ins. Co., 248. 
 
 Eno v. Del Vecchio, 449. 
 
 Enos v. Southerland, 266. 
 
 Ensign v. Colburn, 265. 
 
 Ensminger v. Davis, 598. 
 
 Ensminger v. People, 599. 
 
 Epley v. Withrow, 585. 
 
 Equitable Life Ins. Co. v. Bostwick, 253. 
 
 Erickson v. Jones, 38. 
 
 Erskine v. Townsend, 222, 243. 
 
 Erwin v. Olmstead, 186, 495. 
 
 Escher v. Simmons, 218. 
 
 Esdon v. Colburn, 160. 
 
 Eskridge v. McClure, 217, 221. 
 
 Eslana v. LePetrc, 273. 
 
 Esmond v. Tarbox, 59t>. 
 
 Esper v. Hefferman, 240. 
 
 Essex v. Atkins, 348. 
 
 Estabrook v. Smith, 619, 622. 
 
 Estep v. Hutchman, 526. 
 
 Esterly v. Purdy, 236. 
 
 Estes v. Fry, 276. 
 
 Estes v. Kedsey, 173. 
 
 Esty v. Baker, 163, 592. 
 
 Esty v. Clark, 473. 
 
 Esty v. Currier, 606. 
 
 Etheridge v. Vernoy, 273. 
 
 Etowah Mining Co. v. Parker, 494. 
 
 Euston v. Friday, 256. 
 
 Eustace v. Scawen, 177. 
 
 Evangelical Home v. Buffalo Hvdraulic 
 
 Ass., 435. 
 
 Evans v. Bear, 380. 
 Evans v. Brittain, 179. 
 Evans v. Chew, 376. 
 Evans v. Elliott, 245. 
 Evans v. Gale, 560. 
 Evans v. Gibbs, 579.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Evans r. Howell, 450. 
 
 Evans v. Huffman, 247. 
 
 Evans v. Inglehart, 58. 
 
 Evans r. Kimball, 242. 
 
 Evans v. King, 371. 
 
 Evans v. X orris, 237. 
 
 Evans v. Pierson, 118. 
 
 Evans v. Pike, 275. 
 
 Evans v. Roberts, 529, 563. 
 
 Evans v. Smith, 644. 
 
 Evans ?. Summerlin, 558. 
 
 Evans : . Weatherhead, 322. 
 
 Evans v. Webb, 85. 
 
 Evansville v. Page, 603. 
 
 Everett v. Stone, 583. 
 
 Evers v. Challis, 399. 
 
 Eversol v. Early, 619. 
 
 Everson v. McMullen, 87. 
 
 Everts r. Agner, 579. 
 
 Everts v. Beach, 191. 
 
 Evertson v. Booth, 290. 
 
 Evitts v. Roth, 494. 
 
 Ewersten v. Gerstenberg, 205. 
 
 Ewing v. Burnett, 495, 590. 
 
 Ewing v. Savary, 559. 
 
 Ewing v. Shropshire, 45. 
 
 Ewing v. Smith, 73, 348. 
 
 Ewing v. Winter, 301. 
 
 Excelsior Ins. Co. v. Ins. Co., 248. 
 
 Eyer v. Beck, 640. 
 
 Eyster v. Graff, 243. 
 
 Eyster v. Hathaway, 574. 
 
 Fabens v. Fabens, 640. 
 
 Faber v. Police, 51, 536. 
 
 Fair v. Brown, 247. 
 
 Fair r. Stevenot, 586. 
 
 Fairbank v. Cudworth, 265. 
 
 Fairbanks v. Metcalf, 579. 
 
 Fairchild v. Chastelleaux, 69. 
 
 Fairchild v. Marshall, 118. 
 
 Faith r. Bowles, 205. 
 
 Fales v. Fales, 195. 
 
 Fates v. Conway, 235. 
 
 Fall v. County Sutler, 454, 456. 
 
 Fallas 7'. Pierce, 584. 
 
 Fallon v. Chidester, 187. 
 
 Falls of Neuse Mfg. Co. v. Brook, 494. 
 
 Fallwood v. Graham, 595. 
 
 Faloon i'. Linghauser, 504. 
 
 Fame v. Winnons, 248. 
 
 F. & M. Schaefer Brewing Co. v. Molbs, 
 
 566. 
 
 Fanning v. Doane, 33. 
 Fanning v. Wilcox, 504. 
 Farabow v. Green, 202. 
 Farley v. Craig, 460, 462. 
 Farmer v. Curtis, 266. 
 Farmer v. Grose, 233. 
 Farmer v. Peterson, 559. 
 Farmers Bk. v. Bronson, 247, 259. 
 Farmer's Bank v. Corder, 181. 
 Farmers' Bank v. Glenn, 625. 
 Farmers Bank v. Hageluken, 74. 
 Farmers' Ins., etc., Co. v. Edwards, 254. 
 Farmers' Loan, etc., Co. v. Hendrick- 
 
 son, 2. 
 
 Farmers Loan, etc., Co. v, Hughes, 282. 
 Farmers L. & T. Co. v. Maltby, 582, 584. 
 
 Farm Land Co. v. Raynor, 279. 
 
 Farnham v. Clements, 368. 
 
 Farnham v. Thompson, 205. 
 
 Farnsworth v. Taylor. 605. 
 
 Farnsworth v. West, 16. 
 
 Farnum v. Farhuni, 302, 312. 
 
 Farnum v. Hefner, 140. 
 
 Farr v. Doxtaler, 236. 
 
 Farr v. Gilreath, 362. 
 
 Farr v. Smith, 190. 
 
 Farrall v. Lovel, 246. 
 
 Farrand v. Petit, 399. 
 
 Farrant v. Ware, 633. 
 
 Farrar v. Ayres, 640. 
 
 Farrar v. Chauffetete, 15, 529. 
 
 Farrar v. Fessenden, 581. 
 
 Farrar v. Heinrich, 493. 
 
 Farrar v. Stackpole, 606. 
 
 Farrell v. Parlier, 275. 
 
 Farrington v. Barr, 329. 
 
 Farrington v. Duval, 367. 
 
 Farrington v. Kimball, 139. 
 
 Farrion v. New Eng. Mortgage, 240, 574. 
 
 Farris v. Dudley, 445. 
 
 Farris v. Houston, 267. 
 
 Farris v. Rogers, 204. 
 
 Parson v. Goodale, 169. 
 
 Farwell v. Getting, 87. 
 
 Parwell v. Lloyd, 367. 
 
 Farwell v. Rogers, 559. 
 
 Fash v. Blake, 547. 
 
 Fash v. Ravesies, 583. 
 
 Fassett v. Smith, 257. 
 
 Fatheree v. Lawrence, 633. 
 
 Faught v. Holway, 495, 497. 
 
 Faulkner v. Adams, 576, 577. 
 
 Faulkner v. Breckenborough, 254. 
 
 Faulkner v. Cody, 235, 272. 
 
 Fawcett v. Kinney, 518. 
 
 Fay v. Brewer, 66, 300. 
 
 Fay v. Cheney, 87, 2C3. 
 
 Fay v. Muzzey, 16, 606. 
 
 Fay v. Sylvester, 301. 
 
 Fay v. Taft, 347, 365. 
 
 Fay v. Wood, 512. 
 
 Fears v. Brooks, 72. 
 
 Feary v. Booth, 73. 
 
 Febeiger v. Craighead, 239. 
 
 Feely v. Bryan, 228, 232. 
 
 Feger v. Keefer, 529. 
 
 Pehlhower v. St. Louis, 161. 
 
 Feimster v. Johnston, 15. 
 
 Felch v. Hooper, 365. 
 
 Felch v. Taylor. 139, 239. 
 
 Felder v. Murphy, 273. 
 
 Feldes v. Duncan, 127. 
 
 Fell v. Young, 581. 
 
 Fellman's Admr. v. Landis, 631. 
 
 Fellows v. Bunn, 114. 
 
 Fellows v. King, 217. 
 
 Fellows v. Smith, 368. 
 
 Felton v. Pitman, 582. 
 
 Fenley v. Johnson. 304. 
 
 Fenn v. Holme, 521. 
 
 Fenn T. Smart. ^7. 
 
 Fentiman f. Smith, 467. 
 
 Fenton v. Montgomery, 146. 
 
 Fenton v. Steere. 195. 
 
 Fen wick v. Floyd, 552. 
 
 Ferguson v. Glassford, 264. 
 
 Ferguson v. Hedges, 642. 
 
 lix
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Ferguson v. Thomasson, 301, 631. 
 
 Ferguson f. Waller & Co., 126. 
 
 Fernald v. Linscott, 239. 
 
 Fernbacher f. Fernbacher, 408. 
 
 Ferrett r. Taylor, 613. . 
 
 Ferrin v. Kenny, 163. 
 
 Ferris v. Coover, 532, 594. 
 
 Ferris v, Crawford, 236. 
 
 Ferris v. Ferris, 234. 
 
 Ferris v. Harshea, 619. 
 
 Ferris v. Irving, 669. 
 
 Ferris v. Van Ingen, 86. 
 
 Ferris v. Van V'echten, 368. 
 
 Fessenden v. Taft, 236. 
 
 Fetron v. Merriwether, 272, 559. 
 
 Fetters v. Humphreys, 427, 432. 
 
 Fettiplace v. Gorges, 348. 
 
 Fewbold v. Glenn, 204. 
 
 Ficher v. N. T. Co., 676. 
 
 Fichtner v. Fichtner's Assignee, 97. 
 
 Fie v. Taylor, 87. 
 
 Field v. Jackson, 68. 
 
 Field v. Mills, 139. 
 
 Field v. Swan, 245. 
 
 Field v. Tanner, 178, 188. 
 
 Fielder v. Darien, 233. 
 
 Fields v. Fish, 228. 
 
 Fields -v. Watson, 322, 397. 
 
 Fields v. Whitfield, 393. 
 
 Fineld v. Sperry, 275. 
 
 Fifty Associates v. Grace, 156. 
 
 Fifty Associates v. Rowland, 150, 211. 
 
 Fightmaster v. Beasley, 190. 
 
 Hibert v. Hoff, 186. 
 
 Filchrist v. Stevenson, 377. 
 
 1 illiter v. Phippard, 66. 
 
 1 illman v. Divris, 368. 
 
 Filson v. Filson, 634. 
 
 1 inch v. Finch, 367. 
 
 Finch v. Winchelsea, 260. 
 
 Findlay v. Smith, 62. 
 
 Finfield v. National Bank, 11. 
 
 Fink v. Le. Koy, 247. 
 
 1- inlay v. King's Lessee, 202, 206. 
 
 Finley v. Simpsoti, 587. 
 
 Finley v. U. S. Bank, 273. 
 
 Finnegan v. Prindeville, 125. 
 
 Finney v. Earl of Winchelsea, 583. 
 
 Finney v. St. Louis, 170. 
 
 Firemen's Ins. Co. v. McMillan, 579. 
 
 Firestone v. Firstone, 92. 
 
 First Nat. Bank v. Briggs, 126. 
 
 First Nat. Bk. v. Caldwell, 215. 
 
 First Nat. Bk. v. Gage, 245. 
 
 First Nat. Bank v. Hayzlett, 260, 583. 
 
 First National Bank v. Honeyman, 252, 
 
 r>82. 
 
 First Parish, etc., v. Cole, 340. 
 
 Fischer v. Laack, 439. 
 
 Fish v. Rowland, 218. 
 
 Fisher v. Beckwith, 576. 
 
 Fisher v. Cowles, 264, 574. 
 
 Fisher v. Deering, 147. 
 
 Fisher v. Demerson, 192. 
 
 Fisher v. Edington, 500. 
 
 Fisher v. Fields, 30, 371. 
 
 Fisher v. Grimes, 86. 
 
 Fisher v. Hall, 576. 
 
 Fisher v. Hampton Transp. Co., 367. 
 
 Fisher v. Jansen, 146. 
 
 Fisher v. Lighthall, 146. 
 
 Ix 
 
 Fisher v. Laack, 608. 
 
 Fisher v. Morgan, 113. 
 
 Fisher v. Otis, 236, 254. 
 
 Fisher v. Provin, 181. 
 
 Fisher v. Smith, 601. 
 
 Fisher v. Southern L. & T. Co., 569. 
 
 Fisher v. Wister, 298. 
 
 Fisk v. Potter, 217. 
 
 Fisk v. Stubbs, 560. 
 
 Fiske v. Fiske, 237. 
 
 Fiske v. Tolman, 253. 
 
 Fitch v. Baldwin, 615. 
 
 Fitch v. Bunch, 578. 
 
 Fitch v. Casey, 532. 
 
 Fitch v. Cotheal, 257, 258. 
 
 Fitchburg Cotton Co. v. Melvin, 55. 
 
 Fitts v. Beardsley, 250. 
 
 Fitz v. Smallbrook, 406. 
 
 Fitzgerald v. Barker, 253. 
 
 Fitzgerald v. Reed, 556. 
 
 Fitzhaugh v. Wilcox, 556. 
 
 Fitzhugh v. Barnard, 580. 
 
 Fitzhugh v. Croghan, 573, 614. 
 
 Fitzpatrick v. Fitzpatrick, 640. 
 
 Fitzpatrick v. Graham, 572. 
 
 Flagg v. Bean, 84. 
 
 Flagg v. Eames, 609. 
 
 Flagg v. Flagg, 244, 525. 
 
 Flagg v. Mann, 187. 
 
 Flaherty v. McCormick, 492. 
 
 Flanagan Est. v. Land Co., 217. 
 
 Flanagan v. Philadelphia, 5y9. 
 
 Flanagan v. Wescott, 252. 
 
 Flanders v. Lamphear, 237. 
 
 Flanery v. Kone, 31. 
 
 Flayler v. Malloy, 260. 
 
 Fleet v. Dorlond, 54. 
 
 Fleming v. Burgin, 585. 
 
 Fleming v. Griswold, 505. 
 
 Flenen v. Flenen, 57. 
 
 Fleschner v. Sumpter, 585. 
 
 Fletcher v. Chase, 242. 
 
 Fletcher v. Fletcher, 39. 
 
 Fletcher v. Holmes, 273. 
 
 Fletcher v. Mansur, 562. 
 
 Fletcher v. McFarlane, 143. 
 
 Fletcher r. Peck, 520, 521. 
 
 Fletchers v. Severs, 476. 
 
 Fletcher v. State Bank, 617. 
 
 Flinn v. Barber, 218. 
 
 Flinn v. Owen, 633. 
 
 Flinn v. Powers, 557. 
 
 Flint v. Clinton, Co., 377. 
 
 Flint v. Steadman, 322. 
 
 Flitcaft v. Title, 554. 
 
 Flood v. Yanders, 572. 
 
 Florentine v. Barton, 527. 
 
 Florence v. Hopkins, 195. 
 
 Flower v. El wood, 280. 
 
 Floyd v. Floyd, 168, 648. 
 
 Floyer v. Lovingtbn, 236. 
 
 Flynn v. Hancock, 124. 
 
 Flynn v. Williams, 619. 
 
 Flynt v. Arnold, 582, 584. 
 
 Flynt v. Hubbard, 367. 
 
 Fogarty v. Stack, 356. 
 
 Folny v. Palmer, 269. 
 
 Foley v. Cowgill, 579. 
 
 Foley v. Harrison, 520. 
 
 Foley v. Howard, 561, -578. 
 
 Foley v. Wyetts, 448.
 
 TABLE OF CASES CiTEO. 
 
 [References are to Sections.] 
 
 Folk v. Varn, 567, 576. 
 
 Folsom v. Carli, 123. 
 
 Folsom v. Lewis, 146. 
 
 Folts v. Huntley, 152. 
 
 Fonde v. Sage, 207, 576. 
 
 Fonnereau v. Fonnereau, 392. 
 
 Fontain v. Ravenel, 641. 
 
 Fontaine v. Boatman's Sav. Inst., 576. 
 
 Foose v. Whitmore, 373. 
 
 Foote v. Burnett, 612. 
 
 Foote v. Colvin, 160, 563. 
 
 Foote v. Gooch, 15. 
 
 Foote v. Burnett, 616. 
 
 Forbes v. Gracey Con. Vir. Min. Co., 3. 
 
 Forbes v. Hall, 521. 
 
 Forbes v. Moffatt, 242. 
 
 Forbes v. Smiley, 166. 
 
 Force v. Force, 376. 
 
 Forepaugh v. Appoid, 585. 
 
 Ford v. Azill, 217, 221. 
 
 Ford v. Cobb, 16, 300. 
 
 Ford v. Cook, 397. 
 
 Ford v. Fellows, 510. 
 
 Ford v. Flint, 322, 609. 
 
 Ford v. Ford, 399. 
 
 Ford v. Holmes, 498. 
 
 Ford v. James, 577. 
 
 Ford v. Johnson, 30, 39. 
 
 Ford -v. Knap, 190. 
 
 Ford v. Nesbit, 278. 
 
 Ford v. Philpot, 269. 
 
 Ford v. Smith, 217, 221. 
 
 Ford v. Wakworth, 624. 
 
 Ford v. Whitlock, 466. 
 
 Ford v. Wilson, 495. 
 
 Fordyce v. Hicks, 126. 
 
 Fordyce v. Willis, 374. 
 
 Forlont v. Borolin, 245. 
 
 Forrest f. Falgoust. 441. 
 
 Forse v. Hembling, 647. 
 
 Forshaw v. Higginson, 377. 
 
 Forsyth v. Forsyth, 207. 
 
 Forsythe v. Ballance, 521. 
 
 Forsythe v. Price, 58. 
 
 Fort v. Fort, 631. 
 
 Forth v. Chapman, 398. 
 
 Forth v. Norfolk, 239. 
 
 Fortman v. Ruggles, 533. 
 
 Fortune v. Buck, 634. 
 
 Fort Wayne Co. v. Sihler, 236, 515. 
 
 Forward r. Deetz, 186. 
 
 Forwood r. Forwood, 117. 
 
 Fosdick v. Gooding, 110. 
 
 Fosher v. Guilliams, 118. 
 
 Foss v. Crisp, 605. 
 
 Foss v. Staunton, 147. 
 
 Foster v. Browning, 465. 
 
 Foster v. City of Buffalo, 433, 439. 
 
 Foster v. Dennison, 548. 
 
 Foster v. Dwinel, 89. 
 
 Foster v. Equitable Ins. Co., 248. 
 
 Foster v. Foster, 433, 617. 
 
 Foster v. Hickox, 273. 
 
 Foster v. Hilliard, 54, 258. 
 
 Foster v. Leland, 127. 
 
 Foster v. Mansfield, 579. 
 
 Foster v. Marshall, 53. 
 
 Foster v. McKenna, 822, 640. 
 
 Foster v. Prentiss, 18. 
 
 Foster v. Rice, 233. 
 
 Foster v. Ried, 189. 
 
 Foster v. Robinson, 58. 
 
 Foster v, Roche, 197. 
 
 Foster v. Smith, 298. 
 
 Foster v. Thompson, 625. 
 
 Foster v. Vale, 374. 
 
 Foster v. Van Reed, 248. 
 
 Fouch v. Wilson, 218. 
 
 Foulke v. Bond, 495, 498. 
 
 Fountain v. Hendley, 122, 
 
 Fountain, etc., Co. r. Buckleheimer, 30-. 
 
 Fouts v. Milliken, 206. 
 
 Fowler v. Bowery Sav. Bank, 374. 
 
 Fowler v. Bush, 256. 
 
 Fowler v. Depan, 399. 
 
 Fowler v. Fay, 253, 257. 
 
 Fowler v. Heirs of Rust, 217. 
 
 Fowler v. Ingersoll, 399. 
 
 Fowler v. Palmer, 248. 
 
 Fowler v. Poling, 619. 
 
 Fowler v. Shearer, 97, 558. 
 
 Fowler Cycle Works v. Fraser & Chal- 
 mers, 146. 
 
 Fox v. Heffner, 231. 
 
 Fox v. Porter, 399. 
 
 Fox v. Swann, 141. 
 
 Fox v. Turtle, 533. 
 
 Fox v. Union Sugar Co., 605 
 
 Fox v. Watson, 272. 
 
 Fox v. Wharton, 272. 
 
 Foxcroft v. Barnes, 559. 
 
 Foxwell v. Slaughter, 260. 
 
 Frail v. Ellis, 217. 
 
 Frakes v. Elliott, 186. 
 
 Frampton v. Blum, 464. 
 
 France v. Arrnbuster, 275. 
 
 Francis v. Million, 187. 
 
 Francis v. Wells, 217. 
 
 Franciscus v. Reigart, 343. 
 
 Frank v. Colonial & U. S. Mortg. Co., 
 277, 282. 
 
 Frank v. Frank, 200, 322. 
 
 Frank v. Pickle, 236. 
 
 Frank v. Stratford-Hancock, 159, 170. 
 
 Frankland Land Co. 7'. Wea Gas, etc., 
 Co., 126. 
 
 Franklin v. Ayers, 233, 266. 
 
 Franklin v. Beegle, 273. 
 
 Franklin v. Brown, 153. 
 
 Franklin v. Cunningham, 491. 
 
 Franklin v. Gorham, 255. 
 
 Franklin v. Merida, 157. 
 
 Franklin v. Osgood, 282, 407. 
 
 Franklin v. Palmer, 157. 
 
 Franks v. Chapman, 633. 
 
 Franzee v. Inslee, 242. 
 
 Frary v. Booth, 558. 
 
 Fraser v. Child, 368. 
 
 Fray v. Drew, 255. 
 
 Frazer v. Dieton, 640. 
 
 Frazer v. Frisbie Furniture Co., 666. 
 
 Frazier v. Brownlow, 78. 
 
 Frazier v. Frazier, 642. 
 
 Frederick v. Gray, 186. 
 
 Freeburg v. Eksell, 251. 
 
 Freeby v. Tupper, 239. 
 
 Freed v. Brown, 556. 
 
 Freedman v. Goodwin, 520. 
 
 Freeman v. Baldwin, 229. 
 
 Freeman v. Burnham, 368. 
 
 Freeman v. Foster, 617, 622. 
 
 Ixi
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Freeman v. Headly, 166. 
 
 Freeman r. Parsley, 412. 
 
 Freeman v. Scofield, 274. 
 
 Freeman r. Shroeder, 260. 
 
 Freeman v. Wilson, 233. 
 
 Freer v. Stolenbur, 133. 
 
 Freidley v. Hamilton, 584. 
 
 Freke v. Carberry, C29. 
 
 French v. Barron, 269. 
 
 French v. Burns, 233. 
 
 French v. Crosby, 108. 
 
 French v. Fuller, 167. 
 
 French v. Marstin, 438. 
 
 French v. Mehan, 181. 
 
 French r. Patterson, 532. 
 
 French v. Pratt, 104. 
 
 French v. Rollins, 84. 
 
 French v. Spencer, 511. 
 
 French v. Sturdivant, 229. 
 
 French v. Williams, 438. 
 
 Frew v. Clark, 631, 634. 
 
 Frey t>. Lowden, 434. 
 
 Freytag v. Hoeland, 246. 
 
 Friedley v. Giddings, 9. 
 
 Friedley v. Hamilton, 229, 260. 
 
 Friend v. Friend, 603. 
 
 Frink v. Bellis, 616. 
 
 Frink y. Hampden Ins. Co., 248. 
 
 Frink 'v. Le Roy, 243. 
 
 Frink r. Roe, 569. 
 
 Frisbie v. Bateman, 245. 
 
 Frisbie v. Whitney, 522. 
 
 Fritsch v. Klansig, 406. 
 
 Fritsche v. Fritsche, 441. 
 
 Frontin v. Small, 623. 
 
 Frost v. Beekman, 259, 579. 
 
 Frost v. Deering, 571. 
 
 Frost v. Frost, 75. 
 
 Frost v. Meth, 512. 
 
 Frost v. Peacock, 87. 
 
 Frost v. Raymond, 623. 
 
 Frost v. Spaulding, 595, 603. 
 
 Frothingham -v. McKusick, 265. 
 
 Fry v. Scott, 99, 178. 
 
 Fry v, Vanderhoof, 257. 
 
 Fuhr v. Dean, 173, 465. 
 
 Fullenwider v. Watson, 373. 
 
 Fuller v. Chamier, 322. 
 
 Fuller Co. v. Manhattan Const. Co., 
 
 153. 
 
 Fuller v. Construction Co., 157. 
 Fuller v. Hubbard, 220. 
 Fuller v. Ruby, 151, 153. 
 Fuller v. Stout, 638. 
 Fuller v. Sweet, 157. 
 Fulton v. Norton, 14. 
 Fulton v. Stuart, 139. 
 Funk v. Creswell, 545. 
 Funk v. Eggleston, 414. 
 Funk v. Hensler, 367. 
 Funk v. McReynold, 257. 
 Funk v. Voneida, 616, 622. 
 Funkhouser v. Langkopf, 428. 
 Furbish v. Goodwin, 243, 260. 
 Furbish v. Sears, 237. 
 Furguson v. Tweedy, 81. 
 Furlong v. Garrett, 494, 496. 
 Fiirlong v. Leary, 164. 
 Furnas V. Durgin, 253. 
 Furness v. Fox, 801. 
 
 Ixii 
 
 144, 
 
 Furnish v. Lilly, 558. 
 Furrow v. Athey, 126. 
 
 Gadberry v. Shepard, 202, 627. 
 
 Gaerrers v. Bailleno, 368. 
 
 Gaffney v. Peeler, 75, 512. 
 
 Gafford v. Strouse, 496. 
 
 Gage v. Barnes, 608. 
 
 Gage v. Brewster, 619. 
 
 Gage v. Consumers Elec. Light Co., 658. 
 
 Gage v. Gage, 471. 
 
 Gage v. Jenkinson, 253. 
 
 Gage v. School District No. 7, 204. 
 
 Gage v. Stafford, 274. 
 
 Gage v. Ward, 93. 
 
 Gaines v. Brockerhoff, 231. 
 
 Gaines v. Saunders, 494. 
 
 Gaines v. Stiles, 562. 
 
 Gaines v. Walker, 273. 
 
 Gaion v. Williams, 373. 
 
 Galbraith v. Engleke, 590. 
 
 Galbraith v. Fleming, 108. 
 
 Galbraith v. Gedge, 184. 
 
 Gale v. Coburn, 543. 
 
 Gale v. Edwards, 149, 617. 
 
 Gale v. Nixon, 142, 462. 
 
 Gale v. Price, 92. 
 
 Gallagher v. Kilkeary, 633. 
 
 Gallagher v. Mars, 217. 
 
 Gallagher v. Northrup, 367. 
 
 Gallagher v. Reilly, 168. 
 
 Galland v. Tackman, 554, 586. 
 
 Gallego v. Atty. Gen., 641. 
 
 Galliers v. Moss, 241. 
 
 Galloway v. Bonesteel, 432. 
 
 Galloway v. Carter, 393. 
 
 Galloway v. Finley, 217, 521. 
 
 Galpin v. Page, 530. 
 
 Gals v. Wilhite, 641. 
 
 Gait v. Galloway, 521. 
 
 Galusha v. Serman, 257. 
 
 Galveston R. R. -u. Cowdrey, 238. 
 
 Galveston R. R. v. Stealy, 562. 
 
 Galway v. Mulchow, 583. 
 
 Gamble v. McClure, 532. 
 
 Gammon v. Freeman, 92. 
 
 Gankler v. Moran. 30, 321. 
 
 Gann v. Chester, 217, 219. 
 
 Gannon v. Peterson, 68. 
 
 Garabaldi v. Shattuck. 511. 
 
 Garaty v. Dubose, 122. 
 
 Garcia v. Callander, 231. 
 
 Garciay Perea v. Barela, 634. 
 
 Gardenville, etc., Assn. v. Walker, 463, 
 
 464. 
 
 Gardiner v. Dering, 57. 
 Gardiner Man. Co. v. Heald, 193. 
 Gardiner v. Miles, 100. 
 Gardiner v. Miller, 505. 
 Gardiner v. Tate, 58. 
 Gardinier v. Furey, 181. 
 Gardner v. Douglass, 125. 
 Gardner v. Gardner, 348. 
 G-"Wr r . Gooch, 234. 
 Gardner v. Greene, 294. 
 Gardner v. Heatt, 265. 
 Gardner v. Hopper, 301. 
 Gardner v. Keteltas, 131, 158.
 
 TABLE OF CASES CITED. 
 
 [References we to Sections.] 
 
 Gardner Mfg. Co. v. Heald, 4. 
 
 Gardner v. Niles, 616. 
 
 Gardner v. Pace, 471, 564. 
 
 Gardt v. Brown, 590. 
 
 Garfield v. Williams, 614. 
 
 Garland v. Crow, 54, 116. 
 
 Garland v. Richeson, 251. 
 
 Garland v. Wynn, 522. 
 
 Garlington v. Copeland, 504. 
 
 Garner v. Garner, 362. 
 
 Garner v. Jones, 181. 
 
 Garnett Smelting Co. v. Watts, 105. 
 
 Garnsey v. Munday, 362. 
 
 Garnsey v. Rogers, 253. 
 
 Garrard v. Tuck, 165. 
 
 Garrett v. Cheshire, 125. 
 
 Garrett v. Ramsey, 493, 494. 
 
 Garrett v. Sharp, 435. 
 
 Garrison i'. Cox, 195. 
 
 Garrison v. Monaghan, 126. 
 
 Garrison v. Sanford, 616. 
 
 Garson v. Green, 217, 218. 
 
 Garvin v. Garvin, 497. 
 
 Garwood r. Garwood, 583. 
 
 Garza v. Howell, 238, 273. 
 
 Gascoigne v. Thwing, 367. 
 
 Gaskell v. Viquecney, 275. 
 
 Gaskins v. Allen, 557. 
 
 Gass v. Wilhite, 641. 
 
 Gassatt v. Grout, 566. 
 
 Gasser v. Crittenden, 566. 
 
 Gates v. Green, 151. 
 
 Gates v. Seibert, 27. 
 
 Gaven v. Allen, 387. 
 
 Gaw v. Allen, 617. 
 
 Gay v. Boston & Albany R. R. Co., 438. 
 
 Gaylord v. Dodge, 85. 
 
 Gaylord v. Respass, 498. 
 
 Gaze v. Hoyt, 565. 
 
 Gear v. Burnham, 2. 
 
 Gee v. Gee, 367. 
 
 Gee v. Young, 58. 
 
 Geer v. Hamblin, 291, 296. 
 
 Geiger v. Geiger, 116. 
 
 Geissmann v. Wolf, 577. 
 
 Gelston v. Burr, 245. 
 
 Gelston v. Thompson, 267. 
 
 Gen. Ass. Presby. Ch. v. Alexander, 291. 
 
 General Electric Co. v. Equipment Co., 
 
 10. 
 
 Genet v. Delaware Co., 17. 
 Genobles v. West, 90. 
 Genter ^>. Morrison, 574. 
 Genther v. Fuller, 532. 
 Geoag v. Morgan, 321. 
 George r. Baker, 240. 
 George v. Butler, 236. 
 George v. Wood, 246, 582. 
 Georgetown Water Co. v. Fidelity Trust 
 
 Co., 245. 
 Georgia Chemical Works v. Cartledge, 
 
 242, 258. 
 
 Gerald v. Gerald, 592. 
 Gerber *. Grubell, 443. 
 Gerbrich v. Freitag, 631. 
 Gerdine v. Menage, 258, 284. 
 Gerham r. Erdman, 496. 
 Gerhart v. Tucker, 233, 266. 
 German Assn. v. Scholler, 562. 
 German Bank v. Real Est. Co., 269. 
 German v. Machin, 186. 
 
 Germania Ins. Co. v. Casey, 286. 
 
 Gernet v. Lynn, 505. 
 
 Gerrard v. Cook, 430. 
 
 Gerrish v. Black, 244. 
 
 Gerrish v. Clough, 445. 
 
 Gerrish v. Hill, 123. 
 
 Gerry v. Stimpson, 329. 
 
 Gessell v. Bougher, 633. 
 
 Gest v. Packwood, 228. 
 
 Ghegan v. Young, 143. 
 
 Gibbens v. Gibbens, 301. 
 
 Gibbens v. Shepard, 298. 
 
 Gibbert v. Peteler, 430. 
 
 Gibbs v. Penny, 231, 233. 
 
 Gibbs v. Ross, 147, 149. 
 
 Gibbs v. Swift, 574, 593. 
 
 Gibson v. Barrett, 566. 
 
 Gibson v. Brown, 582. 
 
 Gibson v. Chouteau, 514, 623. 
 
 Gibson v. Crehore, 54, 255. 
 
 Gibson v. Decias, 368. 
 
 Gibson v. Farley, 471. 
 
 Gibson v. Foote, 363, 367. 
 
 Gibson v. Gibson, 505. 
 
 Gibson v. Jones, 278. 
 
 Gibson v. McCormick, 288. 
 
 Gibson v. Minet, 548. 
 
 Gibson v. Seymour, 394. 
 
 Gibson v. Shearer, 559. 
 
 Gibson v. Soper, 556. 
 
 Giddings v. Turgeon, 634. 
 
 Gideon v. Struve, 126. 
 
 Gifford v. Choate, 52, 408. 
 
 Gifford v. Corrigan, 577, 578. 
 
 Gil v. Bronwer, 642. 
 
 Gilbert v. Dyneley, 269. 
 
 Gilbert v. Gilbert, 634. 
 
 Gilbert v. Knox, 633. 
 
 Gilbert v. Lawrence, 275. 
 
 Gilbert v. N. Amer. Fire Ins. Co. 
 
 579. 
 
 Gilbert v. Penn, 238. 
 Gilchrist v. Boswick, 187. 
 Giles v. Anslow, 298. 
 Giles v. Baremore, 247, 272. 
 Giles v. Comstock, 154. 
 Giles v. Little, 52, 408. 
 Giles v. Pratt, 587. 
 Giles v. Simonds, 466, 563. 
 Gilkeson v. Thompson, 264, 274. 
 Gilkie v. Marsh, 45. 
 Gill v. Dearmand, 10. 
 Gill v. Fauntleroy, 186, 585. 
 Gill v. Logan, 322. 
 Gill v. Lyon, 285. 
 Gill v. Middleton, 146. 
 Gillan v. Hutchinson, 525. 
 Gillespie v. Bailey, 557. 
 Gillespie v. Miller, 401. 
 Gillespie v. Thomas, 152. 
 Gillett v. Balcom, 272. 
 Gillham v. Mustin, 631. 
 Gillig v. Maass, 260. 
 Gillis v. Brown, 86. 
 Gillis v. Harris, 631. 
 Gillis v. Martin, 231, 269. 
 Gilman v. Bown, 217. 
 Gilman v. Gilman, 191. 
 Gilman v. Haven, 619. 
 Gilman v. 111. & Miss. Tel. Co., 
 
 276. 
 
 Ixiii 
 
 576, 
 
 846,
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Oilman v. Moody, 236. 
 
 Oilman v. Wills, 240. 
 
 Ciiinier r. Lime Point, 525. 
 
 Gilinore v. Driscoll, 448. 
 
 Gilpin v. Adams, 149. 
 
 Gilpin r. Hollingsworth, 180. 
 
 Gilson v. Gilson, 228. 
 
 Given f. Doe, 542, 545. 
 
 Givcns r. McCalmont, 62, 246. 
 
 Gladding i-. Warner, 270. 
 
 Gladwyn v. Hitchman, 272. 
 
 Glass v. Glass, 633. 
 
 Glass v. Hulburt, 590. 
 
 Glen v. Bank of U. S., 97. 
 
 Glidden v. Bennett, 14. , 
 
 Glidden v. Struppler, 510. 
 
 Glide Z-. Dwyer, 275. 
 
 Globe Nav. Co. v. Maryland Casualty 
 
 Co., 508. 
 
 Gloniger v. Franklin Coal Co., 4. 
 Glos v. Hoban, 658. 
 Glos r. Michon, 658. 
 Glos v. Miller, 495. 
 Glos v. Talcott, 658. 
 Gloss v. Kelly, 260. 
 Glover v. Payne, 231, 236. 
 Glover v. Powell, 599. 
 Glover v. Reid, 298, 408. 
 Glover v. Stillson, 178, 408. 
 Glover v. Thomas, 515. 
 Gluck v. Elkan, 208. 
 Godard v. Railroad Co., 164. 
 Godard r. S. C. R. R., 168. 
 Goddard v. Amory, 640. 
 Goddard v. Chase, 15. 
 Goddard v. Sawyer, 249. 
 Goddard v. Whitney, 393. 
 Godfrey v. Humphrey, 30. 
 Godman v. Simons, 195, 307. 
 Goebel v. Wolf, 301. 
 Goelett v. Gon, 181. 
 Goerlitz v. Malawesta, 301. 
 Goffert v. Wallace, 253. 
 Gogwell v. Warrington, 125. 
 Going v. Emery, 641. 
 Golden v. Yoer, 186. 
 Goldtree v. Thompson, 301, 399. 
 Golsbitch i'. Rainbon, 126. 
 Golson v. Hook, 494. 
 Gonaz v. Tradesman's Bk., 373. 
 Gonhenant i'. Cockrell, 127. 
 Gooch v. Atkins, 85. 
 Good v. Combs, 593. 
 Good v. Zercher, 524. 
 Goodall v. McLean, 296. 
 Goodall v. Mopley, 274. 
 Goodburn v. Stevens, 86, 288. 
 Goode v. Comfort, 282. 
 Goodheart v. Goodheart, 97. 
 GooHlet v. Smithson, 521. 
 Goodlett v. Hensell, 572. 
 Goodlittle v. Tombs, 128. 
 Goodman v. Cin. & C. C. R. R., 272. 
 Goodman v. Hannibal & St. Joseph R. 
 
 R., 9. 
 
 Goodman v. Kine, 265. 
 Goodman v. Nichols, 494. 
 Goodman v. White, 255, 275. 
 Goodpastor v. Leathers, 201, 579. 
 Goodrich v. Jones, 2, 14. 
 Goodrich v. Pierce, 302. 
 
 Ixiv 
 
 Goodrich v. Staples, 273. 
 
 Goodright v. Cato, 405. 
 
 Goodright v. Cordwent, 169. 
 
 Goodright v. Cornish, 388, 391. 
 
 Goodright r. Straphan, 558. 
 
 Goodrum v. Goodrum, 72. 
 
 Goodsell v. Sullivan, 585. 
 
 Goodson v. Beacham, 514. 
 
 Goodspeed v. Fuller, 565. 
 
 Goodtitle v, Billington, 313. 
 
 Goodtitle v. Holdfast, 209. 
 
 Goodtitle v. Whiteby, 301. 
 
 Goodwin v. Gilbert, 142, 587. 
 
 Goodwin v. Goodwin, 86. 
 
 Goodwin v. Richardson, 243, 247. 
 
 Goodwin v. Thompson, 599. 
 
 Goodwright v. Dunham, 310, 392. 
 
 Goodwright v. Dunham, 310, 392. 
 
 Gordon v. Avery, 238, 253. 
 
 Gordon v. Bulkley, 569. 
 
 Gordon v. Dickson, 98. 
 
 Gordon v. George, 147. 
 
 Gordon v. Gordon, 393. 
 
 Gordon v. Hazzard, 251. 
 
 Gordon v. Hobart, 246. 
 
 Gordon v. Ins. Co., 248. 
 
 Gordon v. Jackson, 603. 
 
 Gordon v. Lee, 273. 
 
 Gordon v. Lewis, 246, 369. 
 
 Gordon v. Miller, 556. 
 
 Gordon v. Overton, 407. 
 
 Gordon v. Richardson, 148, 209. 
 
 Gordon v. Sizer, 554. 
 
 Gordon v. Taunton, 429. 
 
 Gore 7'. Brazier, ]05. 
 
 Gore v. Gore, 354, 385. 
 
 Gore v. Townsend, 288. 
 
 Gorham v. Arnold, 243. 
 
 Gorham v. Betts, 304. 
 
 Gorin v. Gordon, 404, 418. 
 
 Goring v. Shreve, 239. 
 
 Gorsuch v. Rutledge, 135. 
 
 Gortside v. Outlay, 245. 
 
 Goskins v. Allen, 554, 556. 
 
 Goss v. Staunton, 143. 
 
 Gothard v. Flynn, 215. 
 
 Gott v. Gandy, 146. 
 
 Gott v. Powell, 530. 
 
 Goudie v. Johnston, 406. 
 
 Gould v. Barnes, 502. 
 
 Gould v. Boston Duck Co., 444. 
 
 Gould v. Howe, 608. 
 
 Gould v. Lamb, 30, 371. 
 
 Gould v. Linde, 329. 
 
 Gould v. Mansfield, 644. 
 
 Gould v. Marsh, 253. 
 
 Gould v. School Dist., 129. 
 
 Gould v. Thompson, 165. 
 
 Goulding v. Bunster, 257. 
 
 Gourdin v. Pleas, 302. 
 
 Gourley v. Woodbury, 197, 297. 
 
 Gove v. Learoyd, 329. 
 
 Governeur v. Titus, 583. 
 
 Govier v. Hancock, 08. 
 
 Gowan v. Phila. Exchange Co., 468. 
 
 Gowen v. Shaw, 191. 
 
 Gower v. Howe, 251. 
 
 Gower v. Winchester. 236. 
 
 Grace v. Mercer, 239. 
 
 Grady v. McCorkle, 100. 
 
 Graff v. Fitch, 563.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Grafton Bk. v. Foster, 256. 
 
 Grafton v. Moir, 4o4. 
 
 Graham v. Anderson, 574. 
 
 Graham v. Bleakie, 275. 
 
 Graham v. Carter, 273. 
 
 Graham v. Crockett, 122. 
 
 Graham v. Davidson, 380. 
 
 Graham v. Graham, 633. 
 
 Graham v. Houghtalin, 302. 
 
 Graham v. Newman, 251. 
 
 Graham v. Stafford, 300. 
 
 Graham v. Way, 139. 
 
 Graham v. Whitridge, 309, 405. 
 
 Cranberry v. Cranberry, 2C9. 
 
 Grand Tour, etc., Co. v. Gill, 515, 562. 
 
 Grandin v. Carter, 139. 
 
 Granger v. Brown, 168. 
 
 Granite Bldg. Corp. v. Green, 139. 
 
 Granite Bldg, Corp. v. Manning, 148. 
 
 Grant v. Bissett, 202. 
 
 Grant v. Chase, 428, 432. 
 
 Grant v. Duane, 255. 
 
 Grant v. Fowler, 497. 
 
 Grant v. Jackson, 97. 
 
 Grant v. Townshend, 78. 
 
 Grant v. Whitwell, 46:.'. 
 
 Grantham r. Hawley, 58. 
 
 Graton v. Land & Lumber Co., 531. 
 
 Grattan v. Wiggins, 251, 275. 
 
 Grattin v. Wiggins, 274. 
 
 Gratis v. Gratis, 193. 
 
 Gratz v. Bates, 595. 
 
 Gratz v. Ewalt, 623. 
 
 Graves v. Amoskeag Co., 606. 
 
 Graves v. Beeden, 151, 451. 
 
 Graves v. Campbell, 127. 
 
 Graves v. Coutant, 217, 218. 
 
 Graves v. Graves, 329. 
 
 Graves v. Hampden Ins. Co., 248. 
 
 Graves v. Pierce, 15, 17. 
 
 Graves v. Potter, 147. 
 
 Graves v. Trueblood, 408. 
 
 Graves v. Weld, 59. 
 
 Gray v. Bailey, 642. 
 
 Gray v. Baldwin, 2C5. 
 
 Gray v. Blancharcl, 207. 
 
 Gray v. Bridgworth, 399. 
 
 Gray v. Brignordello, 529. 
 
 Gray v. Crockett, 509. 
 
 Gray v. Freeman, 257. 
 
 Gray v. Givens, 186. 
 
 Gray v. Harris, 444. 
 
 Gray v. Hawkins, 211. 
 
 Gray v. Henderson, 376. 
 
 Gray r. Hornbeck, 527. 
 
 Gray v. Jenks, 254. 
 
 Gray v. Lynch, 407. 
 
 Gray v. Missionary Society, 408, 640. 
 
 Gray v. Nelson, 242. 
 
 Graydon v. Church, 274. 
 
 Great Falls Co. v. Worcester, 515. 
 
 Great Luxembourg Ry. Co. v. Magnay, 
 
 368. 
 
 Greeley v. Maine Cent. R. R., 445. 
 Green's Admr. T. Irvine, 291. 
 Green v. Armstrong, 4, 653. 
 Green v. Arnold, 195, 197. 
 Green v. Ashland Iron Co., 3. 
 Green v. Biddle, 600. 
 Green v. Blackwell, 376. 
 Green v. Brown, 195. 
 
 Greene v. Butler, 335. 
 
 Greene V. Cole, 66. 
 
 Green v. Conant, 577. 
 
 Green v. Creighton, 616. 
 
 Green v. Crockett, 219, 272. 
 
 Green v. Cro=>s, i78. 
 
 Green ^'. Currier, 242. 
 
 Green z 1 . Lie Moss, 219. 
 
 Green v. Dennis, 642. 
 
 Green v. Drinker, 581. 
 
 Green v. Dutrich, 367. 
 
 Green v. Garrington, 584. 
 
 Greene v. Greene, 33, 349. 
 
 Green v. Hart, 226, 251. 
 
 Green v. Hewitt, 313. 
 
 Green v. Hunt, 240. 
 
 Green v. Liter, 80, 493. 
 
 Greene v. Munson, 158. 
 
 Green v. O'Connor, 205, 291. 
 
 Green v. Pcttingill, 207. 
 
 Green v. Phillips, 13. 
 
 Green v. Putnam, 85, 197. 
 
 Green v. Ramage, 285. 
 
 Green T. Sherrod, 233. 
 
 Green v. Sutton, 34, 408. 
 
 Green v. Tanner, 262. 
 
 Green v. Tennant, 113, 105. 
 
 Green v. Thomas, 565. 
 
 Green v. Tomlinson, 260 
 
 Greer v. Tripp, 497. 
 
 Green v. Turner, 247. 
 
 Green v. Wilding, 5.)T. 
 
 Greenaway v. Adams, 139. 
 
 Greenby v. Wilcocks, 614. 
 
 Greene v. Brooks, 365. 
 
 Greene v. Wilbur, 371. 
 
 Greene v. Witherspoon, 584. 
 
 Greenhalgh v. Marggraf, 204. 
 
 Greenland v. Waddell, 399. 
 
 Greenleaf r. Birth, 608. 
 
 Greenleaf z 1 . Francis, 445. 
 
 Greenley v. Wilcocks, 614. 
 
 Greenough r. Turney, 126. 
 
 Greenough v. Wells, 407. 
 
 Greenvault v. Davis, 619. 
 
 Greenwood T 1 . Tyler, 60'J. 
 
 Greenwood v. Wetteran, 144. 
 
 Greer v. Oldham, 125. 
 
 Greer v. .Pate, 322. 
 
 Gregg v. Blackmore, 193, 516. 
 
 Gregg v. Richardson, 624. 
 
 Gregg v. Roaring Spring Co., 191. 
 
 Gregg v. Tesson, 75. 
 
 Greig v. Russell, 231. 
 
 Gregor v. Cady, 146. 
 
 Gregory v. Pierce, 558. 
 
 Gregory v. Savage, 242. 
 
 Gregory v. Walker, 578. 
 
 Grey v. Pullman, 285. 
 
 Grice v. Scarborough, 616, 617. 
 
 Gridley r. Watson, 368. 
 
 Gridley r. Wynatit, 570. 
 
 Gridley's Heirs v. Phillips, 417. 
 
 Griesbaum v. Baum, 276. 
 
 Griffin v. Burnett, 263. 
 
 Griffen r. Fairhrother, 614. 
 
 Griffin v. Graham, 641. 
 
 Griffin r. Haskins, 586. 
 
 Griffin r. Manice, 161. 
 
 Griffin v. Mo. Kan., etc., Ry. Co., 260. 
 
 Griffen v. Recce, 85. 
 
 Ixv
 
 TABLE OP CASES CITED. 
 
 [References are to Sections.] 
 
 Griffin v. Sheffield, 171. 
 
 Griffin v. Shepard, aiiii. 
 
 Griffin v. Smith, x'T-'. 
 
 Griffin r. Sutherland, 122. 
 
 Griffith v. Griffith, 72, 633. 
 
 Griffith r. Pownall, 399. 
 
 Griffith r. Schwenderman, 504. 
 
 Griffithes r. Penson, 692. 
 
 Griffiths r. Morrison, 432. 
 
 Griggs i'. Smith, 92. 
 
 Griggs ?'. Veghty, 118. 
 
 Griggs v. Voghte, 410. 
 
 Griggsley v. Hair, 219. 
 
 Grim v. Curley, 497. 
 
 Grimes r. Harmon, 640. 
 
 Grimes r. Kimball, 257. 
 
 Grimes v. Portman, 126. 
 
 Grimes v. Ragland, 494. 
 
 Grimley v. Davidson, 443. 
 
 Grjmstone v. Carter, 584. 
 
 Grissom v. Moore, 105. 
 
 Griswell v. Grumbling, 204. 
 
 Griswold v. Butler, 556. 
 
 Griswold v. Messenger, 329. 
 
 Griswold v. Minneapolis etc., Co. 178, 
 
 188. 
 
 Griswold v. Warner, 298. 
 Gritton v. McDonald, 217. 
 Grober v. Clements, 85. 
 Groesbeck v. Mattison, 261. 
 Groesbeck v. Milling Co., 458. 
 Gross v. Janesok, 278. 
 Gross v. Welwood, 492. 
 Grosse Pt. v. Detroit R. R. Co., 453. 
 Grosvenor v. Atlantic Ins. Co., 248. 
 Grosvenor v. Bowen, 405. 
 Groustra v. Bourges, 163. 
 Grout v. Townsend, 300, 536. 
 Grove v. Grove, 190. 
 Grove v. Hodges, 17. 
 Grove r. Spiker, 637. 
 Grove v. Todd, 97. 
 Grover v. Flye, 254. 
 Grover v. Thatcher, 242. 
 Grubb v. Bayard, 3. 
 Grube v. Wells, 497. 
 Gruber v. Baker, 509, 515. 
 Grubbs v. Marshall, 633. 
 Gruenwald v. Schaales, 168. 
 Crumley v. Webb, 368. 
 Grundy v. Martin, 189. 
 Grymes v. Boweren, 16. 
 Gubb v. Grubb, 606. 
 Cudgel v. Sutherland, 55. 
 Cuenther v. Wilson, 281. 
 Guerin v. Smith, 616. 
 Guernsey v. Lazier, 75. 
 Guernsey v. Phinizy, 14. 
 Guerrant v. Anderson, 583. 
 Guerrero v. Ballerino, 368. 
 Guest r. Farley, 342. 
 Guest v. Guest, 367. 
 Guest v. Opdyke, 160. 
 Guffy v. Hukill, 207. 
 Guienzberg r. Claude, 139. 
 Guild v. Richards, 207. 
 Cuion v. Anderson, 82. 
 Cuion v. Knapp, 582. 
 Guiselin v. Ferguson, 217. 
 Guiteau v. Wisely, 583. 
 Gulliver v. Wicketts, 392. 
 
 Ixvi 
 
 Gully v. Ray, 94, 96. 
 Gunkle v. Seiberth, 554. 
 Gunn v. Barry, 125. 
 Gunnison v. Twitchell, 85. 
 Gunst v. Pelham, 284. 
 Gunter v. Gunter, 634. 
 Guthman v. Vallery, 55. 
 Guthrie v. Gardner, 367. 
 Guthrie v. Guthrie, 186. 
 Guthrie v. Tones, 16. 
 Guthrie v. Kahle, 246. 
 Guthrie v. Owen, 101. 
 Guthrie v. Sorrell, 266. 
 Guy v. Brown, 432. 
 G. Wathmeys v. Ragland, 251. 
 Gwynn v. Johns, 171. 
 Gwynne v. Cincinnati, 102. 
 
 H 
 
 Habergham v. Vincent, 411. 
 Hatch v. Hill, 74. 
 Hackett v. Amsden, 13. 
 Hackett v. Callender, 260. 
 Hackett v. Reynolds, 215, 216. 
 Hackett v. Snow, 245. 
 Hackett v. Watts, 228, 232. 
 Hackney v. Tracey, 399. 
 Hadlock v. Bullfinch, 256. 
 Hadlock v. Gray, 183, 322. 
 Hafncr v. Irwin, 609. 
 Hagan v. Campbell, 519. 
 Hagan v. Parsons, 236. 
 Hagan v. Walker, 273. 
 Hagar v. Brainerd, 243, 265. 
 Hagar v. Wiswall, 197. 
 Hageman v. Hageman, 321. 
 Hager v. Aston, 275. 
 Hager v. Astorg, 273. 
 Haggard v. Benson, 363. 
 Haggart v. Ranney, 382, 629. 
 Haggerston v. Hanbury, 548. 
 Hagthrop v. Hook, 246, 582. 
 Hague v. Jackson, 273. 
 Hahn v. Baker Lodge, 451. 
 Haigh, ex parte, 213. 
 Hajnes v. Beach, 273. 
 Haines v. Hewitt, 197. 
 Hajnes v. Thompson, 231, 236. 
 Hair v. Goldsmith, 118. 
 Halcomb v. Hood, 125. 
 Haldeman v. Haldeman, 397. 
 Hale v. Hale, 399. 
 Hale v. Jewell, 229. 
 Hale v. Morgan, 264. 
 Hale v. Munn, 92. 
 Hale v. New Orleans, 619. 
 Hale v. Richards, 125. 
 Hale v. Rider, 276. 
 Haley v. Bennett, 217. 
 Halez v. Sheridan, 483. 
 Half red v. Hatch, 139. 
 Halifax v. Higgens, 234. 
 Hall v. Armstrong, 438. 
 Hall v. Arnott, 231, 233. 
 Hall v. Ashby, 547. 
 Hall v. Bliss, 279. 
 Hall v. Bragg, 631. 
 Hall r. Burgess, 163. 
 Hall v. Crabb, 77. 
 Hall v. Davis, 594, 596.
 
 TABLE OP CASES CITED. 
 
 [References are to Sections.] 
 
 Hall v. Deane, 616. 
 
 Hall v. French, 53. 
 
 Hall v. Gale, 615. 
 
 Hall v. Hall, 498, 608. 
 
 Hall ^. Horton, 201. 
 
 Hall v. Kurd, 264. 
 
 Hall v. Klepzig, 273. 
 
 Hall v. Leonard, 561. 
 
 Hall v. Linn, 368. 
 
 Hall v. Loomis, 126. 
 
 Hall v. McCaughey, 435. 
 
 Hall v. McDuff, 214, 518. 
 
 Hall v. Nute, 301. 
 
 Hall v. Orvis, 512. 
 
 Hall v. Patterson, 574. 
 
 Hall v. Priest, 298, 393. 
 
 Hall v. Robinson, 385. 
 
 Hall v. Saville, 231. 
 
 Hall v. Sayre, 69. 
 
 Hall v. School Dist., 203. 
 
 Hall v. Shotwell, 604. 
 
 Hall v. Stevenson, 290. 
 
 Hall v. Tuffts, 204, 236. 
 
 Hall v. Tunnell, 239, 243. 
 
 Hall v. Wadsworth, 164. 
 
 Hall v. Westcott, 238, 247. 
 
 Hall v. West Transp. Co., 166. 
 
 Hall v. Wright, 587, 609. 
 
 Hall v. Yoell, 273. 
 
 Halladay v. Stickler, 204. 
 
 Hallbrook v. Green, 247. 
 
 Hallenbeck v. De Witt, 575. 
 
 Hallenbeck r. Rowley, 601. 
 
 Hallett v. Collins, 587. 
 
 Hallett v. Wylie, 136. 
 
 Hallock v. Smith, 219. 
 
 Halman v. Hopkins, 629. 
 
 Halsey v. Martin, 229. 
 
 Halsey v. McCormick, 489, 597. 
 
 Halsey v. Reed, 257. 
 
 Halstead v. Caen, 68. 
 
 Halstead v. Bk. of Ky., 582. 
 
 Halt v. Rees, 266. 
 
 Halvorsen v. Halvrsen, 217. 
 
 Ham v. Ham, 509. 
 
 Ham v. Kendall, 9. 
 
 Hamerton v. Stead, Ifi4, 166. 
 
 Hamilton v. Burum, 532. 
 
 Hamilton v. Crosby, 530. 
 
 Hamilton v. Dobbs, 255. 
 
 Hamilton v. Doolittle, 547. 
 
 Hamilton v. Elliott, 206. 
 
 Hamilton v. Farrar, 435. 
 
 Hamilton v. Flournoy, 507. 
 
 Hamilton v. Lubukee, 278. 
 
 Hamilton v. Nutt, 584, 586. 
 
 Hamilton v. Phillips, 193. 
 
 Hamilton v. Redden, 186. 
 
 Hamilton v. Rhodes, 263, 279. 
 
 Hamilton v. White, 440. 
 
 Hamilton v. Wickson, 53. 
 
 Hamilton v. Wright, 143. 
 
 Hamlin v. Hamlin, 87. 
 
 Hamlin v. Pairpoint Mfg. Co., 601. 
 
 Hamlin v. Werner, 433. 
 
 Hammann v. Jordan, 450. 
 
 Hammerlough v. Cheatham, 553. 
 
 Hammington v. Rudgard, 385. 
 
 Hammock v. Greekmore, 160. 
 
 Hammond v. Alexander. 550, 571. 
 
 Hammond v. Crosby, 493, 504. 
 
 Hammond v. Croxton, 406. 
 
 Hammond v. Eckhardt, 172. 
 
 Hammond r. Lewis, 250. 
 
 Hammonds v. Hopkins, 229, 247. 
 
 Hammons v. McClure, 157. 
 
 Hamon v. Dyer, 301. 
 
 Hampson r. Fall, 3C7. 
 
 Hampton v. Hodges, 265. 
 
 Hampton ?'. Levy, 260. 
 
 Hampton v. Nicholson, 257. 
 
 Hampton v. Wheeler, 182. 
 
 Hanchet v. Whitney, 168. 
 
 Hancock v. Beverly, 582. 
 
 Hancock v. Carlton, 209. 
 
 Hancox v. Fishing Ins. Co., 248. 
 
 Hancox v. Meeker, 50. 
 
 Hand v. Armstrong, CIS. 
 
 Hand v. Marcy. 042. 
 
 Hand v. St. Loui;, 205. 
 
 Handforth v. Jackson, 9. 
 
 Hands r. James, 631!. 
 
 Handy v. McKim, 3:. 2. 
 
 Hanford r. McNair, 5G9. 
 
 Hankey v. Clark, 430. 
 
 Hankie 7'. Dillon, 15. 
 
 Hanks v. Folsom, 305. 
 
 Hanks v. Rhodes, 23:5. 
 
 Hanna v. Kasson, 236. 
 
 Hannah v. Carrington, 226, 282. 
 
 Hannah r. Davis, 219, 231. 
 
 Hannah v. Peak, 635. 
 
 Hannah r. Svvarner, 576. 
 
 Hannan v. Osborn, 101, 393. 
 
 Hannum v. Westchester, 590. 
 
 Hanrahan v. O'Reil'y. COS. 
 
 Hans v. Palmer, 634. 
 
 Hansard v. Hardy, 247. 
 
 Hanson v. Campbell, 601. 
 
 Hanson v. Craft, 53. 
 
 Hanson v. Hanson, 198. 
 
 Hanson v. Johnson, 504. 
 
 Hanson i\ McCue, 445. 
 Hanson ^'. Meyer, 147. 
 
 Hapgood v. Brown, 606. 
 Harbison ?. James, 298, 301. 
 Harbison r. School Dist., 494. 
 Hard v. Harlan, 260. 
 Hardaway v. Semmes, 585. 
 Hardenburg v, Larkin, 570. 
 Harder v. Harder, 62, 66. 
 Hardin v. Barrett, *94. 
 Hardin v. Hardin, 562. 
 Hardin v. Hooks, 219. 
 Hardin r. Lawrence, 105. 
 Harding v. Hardy, 556. 
 Harding v. Mill River Co., 272. 
 Harding v. Seley, 159. 
 Harding v. Tibbils, 532. 
 Harding v. Townsend, 248. 
 Hardwick v. Solzi, 558. 
 Hardy r. Clarkson, 301. 
 Hardy v. McCullough, 432. 
 Hardy r. Poss, 149. 
 Hare v. Cany, 405. 
 Hargis v. Kansas City, 494. 
 Hargrave r. King, 139. 
 Haring v. Van Houtan, 596. 
 Harisman . Gray, 97. 
 Harker v. Chambliss, 68. 
 Harkey v. Cain, 13. 
 Harkins v. Forsyth, 275. 
 
 Ixvii
 
 TABLE OF CASES CITED. 
 
 [Rcfcn /icr.s are to Sections.] 
 
 Haikness r. Sears, 10. 
 Hail. in "'. Scatoa, i"^:'. 
 Harlan r. Smith, 275. 
 Harlem Co-op. Bldg. & Loan Ass'n v. 
 
 {j;ii;m, ~;.;. 
 
 Har.o.v r. Thomas, 253, 625. 
 
 liar in. .11 >. Obcrdorfer, 576. 
 
 Harmon r. Brown, 214. 
 
 Ha: 11:011 r. Dyer, 2C4. 
 
 Harmon r. Gartman, 190. 
 
 Harms r. McCormick, 189. 
 
 Hairulon !. St-.iUz, 8. 
 
 Harniekeil r. OrnJoff, 277. 
 
 Harnickie r. \\'el!s, -/r. 
 
 Harp r. Jackson, 471. 
 
 Harpenil'.ng r. Dutch Church, 186. 
 
 Harper r. Barsh, 5S1. 
 
 Harper r. Dowdney, 617. 
 
 Harper r. Ely, 246, 09. 
 
 Harper r. Harper, 480. 
 
 Harper v. Little, 569. 
 
 Harper v. Perry, 565. 
 
 Harper v. Reno, 581. 
 
 Harper v. Tapley, 504, 581. 
 
 Harr v. Shafer, 617. 
 
 Harral v. Leverty, 559. 
 
 Harrell v. Butler, 590. 
 
 Harrigan v. Gilchrist, 228, 232. 
 
 Harrington v. Fortner, 228. 
 
 Har 
 Har 
 Har 
 Har 
 Har 
 Har 
 Har 
 Har 
 Har 
 Har 
 Har 
 Har 
 
 is v. Barnes, 385, 391. 
 is ?'. Barnett, 365. 
 is *'. Carpenter, 301. 
 is T,'. Carson, 59. 
 is v. Duarte, 122. 
 is v. Elliott, 601, 606. 
 is v. Frink, 160, 166. 
 is v. Haine, 217. 
 is v. Harris, 577. 
 is v. Knapp, 406. 
 is v. Mathews, 124. 
 is v. McElroy, 381. 
 
 Harris v. McKissack, 521. 
 Harris v. Mills, 247. 
 Harris ^'. Mins, 65. 
 Harris v. Norton, 260. 
 Harris v. Petty, 380. 
 Harris v. Richey, 498. 
 Harris v. Roraback, 205. 
 Harris v. Ryding, 4. 
 Harris v. Thomas, 68. 
 
 Harrisburg Electric Light Co. v. Good- 
 man, 9. 
 
 Harrison v. Augusta Factory, 441. 
 Harrison r. Blackburn, 131. 
 Harrison r. Burgess, 635. 
 Harrison v. Burlingame, 238, 253. 
 Harrison v. Good, 433. 
 Harrison 7'. Gray, 512. 
 Harrison v. Jelly, 161. 
 Harrison v. Tones, 306. 
 Harrison v. Lemon, 230. 
 Harrison r. McReynolds, 85, 101. 
 Harrison v. Middlelon, 163. 
 Harrison v. Oakman. 574. 
 Harrison v. R. R. Co., 203. 
 Harrison r. Wise, 267. 
 Harrison v. Wood, 85. 
 Harrison v. Wyse, 246. 
 JTnrsh v. Griffin, 126. 
 Jfqr<=haw '. McKesson, 272. 
 Hart v. Burch, 90, 97. 
 
 Ixviii 
 
 Hart v. Chalker, 236. 
 
 Hart v. Epstein, 233. 
 
 Hart i'. Farm, 583. 
 
 Hart v. Red Cedar, 441. 
 
 Hart v. Sheldon, 13. 
 
 Harter r. Brewing Co., 217. 
 
 Hartford Ins. Co. r. Walsh, 248. 
 
 Hartford Iron Mine Co. v. Cambria Min. 
 
 Co., 604. 
 
 Hartley f. Harrison, 252. 
 Hartley v. Minors Ap|>., 407. 
 Hartley v. VVharton, 537. 
 Hartman v. Stricklcr, 037. 
 Hartman v. Herbine, 204. 
 Hartness v. Thompson, 556. 
 Harton v. Harton, 348. 
 Hartshorn v. Cleveland, 617. 
 Hartshorn r. Day, 575. 
 Hartshorne v. Hartshorne, 90. 
 Hartwell v. Blocker, 274. 
 Hartwell r. Havinghorst, 522. 
 Harvard College 7>. Society, etc., 641. 
 Harvey r. Aston, 203. 
 Harvey v. Brydges, 173. 
 Harvey r. Chouteau, C33. 
 Harvey v. Harvey, 60, 417. 
 Harvey v. Sullens, 635. 
 Harvey v. Wichman, 80. 
 Harvin v. Blackmail. 157. 
 Haseltine v. Prince, 75. 
 Haskell v. New Bedford, 525. 
 Haskell v. Putnam, 157. 
 Haskell r. Scott, 218. 
 llaskin r. Woodward, 15, 265. 
 Haskins v. Hawkes, 240. 
 Haskins v. Spiller, 481. 
 Hasle v. McCoy, 166. 
 Haslett v. Glesin, 59. 
 Hass 7'. Plantz, 510. 
 Hassam v. Barrett, 233. 
 Hassett v. Ridgley, 194. 
 Hastings v. Clifford, 118. 
 Hastings v. Crunckleton, 62. 
 Hastings r. Center. U3, 581. 
 Hasting v. Drew, 365/368. 
 Hastings v. Hastings, 190. 
 Hastings r. Ste\ens, 87. 
 Hastings r. Vaughan, 572. 
 Hatch v. Bates, 558, 576. 
 Hatch v. Dwight, 597. 
 Hatch, v. Hatch, 578. 
 Hatch v. Palmer, 87. 
 Hatchell v. Kinsbrough, 160. 
 Hatcher v. Crews, 126. 
 Hatfield v. Sneden, 99, 298. 
 Hathaway r. Evans, 595. 
 Hathaway v. Payne, 579. 
 Hathorn v. Haines, 559. 
 Hathorn v. Lym, 82. 
 Hathorn v. Stinson, 600. 
 Hatstat v. Packard, 168. 
 Haughton v. Harrison, 388. 
 Hauptman v. Hauptman, 86. 
 Hauser v. Lash, 228. 
 Haven v. Adams, 245, 273. 
 Haven v. Foster, 288, C49. 
 Haven v. Wakefield, 13fi. 
 Havens v. Seashore Land Co., 548. 
 Havens v. Vanrjen Burgh, 647. 
 Haverstick v. Sipe. 443. 
 Hawes v. Favor, 205.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Hawes v. Hawes, 177. 
 
 Hawk v. McCullough, 623. 
 
 Hawk v. Seuseman, 496. 
 
 Hawkes v. Hubback, 348. 
 
 Hawkins v. Barney, 488. 
 
 Hawkins v. Clermont, 237. 
 
 Hawkins v. Files, 260. 
 
 Hawkins v. Pepper, 5. 
 
 Hawkins v. Skegg, 59. 
 
 Hawks v. Pike, 577. 
 
 Hawks v. Seuseman, 492. 
 
 Hawley v. Bradford, 239, 281. 
 
 Hawley v. Brown, 634. 
 
 Hawley v. City of Baltimore, 441. 
 
 Hawley v. James, 87, 297. 
 
 Hawley v. Northampton, 45, 393. 
 
 Hawley v. Peavy, 301. 
 
 Hawley v. Wolverton, 62. 
 
 Hawlins v. Spippam, 466. 
 
 Hawn v. Banks, 642. 
 
 Hay v. Callman, 429. 
 
 Hay v. Coleman, 434. 
 
 Hay v. Coventry, 312. 
 
 Hay v. Tillyer, 16. 
 
 Hayden '. Lucas, 136. 
 
 Hayden v. Merrill, 190, 191. 
 
 Hayden v. Robinson, 121. 
 
 Hayden v. Stoughton, 636, 642. 
 
 Hayes v. Bowman, 597. 
 
 Hayes v. Davis, 204. 
 
 Hayes v. DeVity, 438. 
 
 Hayes v. Ferguson, 618. 
 
 Hayes v. Ford, 322. 
 
 Hayes v. Kershaw, 541, 543. 
 
 Hayes v. McReynolds, 307. 
 
 Hayes v. Tabor, 301, 343. 
 
 Hayford v. Wentworth, 11, 16. 
 
 Hayn 
 
 v. 
 
 Cummings, 142. 
 
 Hayn 
 
 T V. 
 
 Smith, 153. 
 
 Hayn 
 
 S V. 
 
 Boardman, 499. 
 
 Hayn 
 
 S 11 
 
 Irvine, 640. 
 
 Hayn 
 
 S V. 
 
 Jackson, 603. 
 
 Hayn 
 
 a v. 
 
 Powers, 109. 
 
 Hayn 
 
 S V 
 
 Seacrest, 569. 
 
 Hayn 
 
 S V. 
 
 Sherman, 399. 
 
 Hayn 
 
 S V. 
 
 Swan, 233. 
 
 Hayn 
 
 S V. 
 
 Young, 619, 625. 
 
 Hays v. Doane, 16. 
 Hays v. Kershaw, 344. 
 Hays v. Quay, 373. 
 Hayton v. Mclntire, 254. 
 Hayward v. Cuthbert, 113. 
 Hayward v. Howe, 39. 
 Hayward v. Kinney, 46, 51. 
 Hazard v. Cole, 384. 
 Hazard r. Robinson, 266, 432. 
 Hazelton v. Lesure, 94. 
 Hazelton v. Moore, 217, 218. 
 Hazelton v. Putnam, 465. 
 Hazen v. Thurber, 113. 
 Hazlett v. Powell, 152. 
 Headley v. Goundray, 226. 
 Hear v. Prejol 374. 
 Heard v. Baud. 282, 381. 
 Heard v. Fairbanks, 529. 
 Heard v. Pilley, 367. 
 Hcarle v. Greenback, 79. 
 Hearst v. Bojol, 377. 
 Hearst v. Pujol, 498. 
 Heartt v. Kruger, 450. 
 Heath v. Crealoclc, 368. 
 Heath v. Hewitt, 562. 
 
 Heath v. Knapp, 72. 
 
 Heath v. White, 82. 
 
 Heath v. Williams, 231, 233. 
 
 Heaton v. Hodges, 596. 
 
 Hebron v. Centre Harbor, 230. 
 
 Heburn v. Warner, 23t>. 
 
 Hecock v. Van Dusen, 494. 
 
 Hedge v. Drew, 137. 
 
 Heed v. Ford, 96. 
 
 Hefferman v. Ostego Water Power Co., 
 605. 
 
 Heflin v. Bingham, 255. 
 
 Hegeman v. Arthur, 154. 
 
 Hegeman v. McArthur, 156. 
 
 Heinrichs v. Terrell, 497. 
 
 Heiskell v. Cobb, 498. 
 
 Heist v. Baker, 217. 
 
 Heistner v. Fortner, 581, 583. 
 
 Helgebye v. Damman, 126. 
 
 Hellman v. McWilliams, 373. 
 
 Hellwig v. Bachman, 141. 
 
 Helm v, Kaddatz, 121, 608. 
 
 Helms v. Helms, 201. 
 
 Helms v. May, 586. 
 
 Helmsley v. Marlborough Hotel Co., 205. 
 
 Helt v. Kelt, 85. 
 
 Hemke v. Floring, 367. 
 
 Hemingway v. Hemingway, 407. 
 
 Hemingway v. Scales. 181. 
 
 Hempfield R. R. v. Thornburg, 217. 
 
 Hemphill v. Giles, 245. 
 
 Hemphill v. Haas, 126. 
 
 Hemphill v. Ross, 243. 
 
 Hemphill v. Tevis, 163. 
 
 Henagon v. Harllee, 94, 288. 
 
 Hendershot v. Lawrence, 195. 
 
 Henderson v. Chaires, 98. 
 
 Henderson v. Downing, 583. 
 
 Henderson v. Farbridge, 631. 
 
 Henderson v. Grammar, 238. 
 
 Henderson v. Henderson. 322. 
 
 Henderson v. Herrod. 251. 
 
 Henderson v. Hunter, 207, 211. 
 
 Henderson v. Huntington, 211. 
 
 Henderson v. Kinard, 393. 
 
 Henderson v. McGee, 260. 
 
 Henderson v. Pilgrim, 229, 250. 
 
 Henderson v. Schuylkill Valley Co., 132. 
 
 Henderson v. Walthour. 322. 
 
 Henderson T. Wilson, 264. 
 
 Hendricks v. Musgrove, 186. 
 
 Hendricks v. Smith, 160. 
 
 Hendricks v. Spring Val. Min. & Irriga- 
 tion Co.. 448. 
 
 Hendrjcks v. Stark, 619. 
 
 Hendrickson v. Grable, 86, 94. 
 
 Hendrix v. McBeth, 64. 
 
 Hendrix v. Munn, 368. 
 
 Hendrix v. Seaborn, 125. 
 
 Hendry v. Hollingdrake, 195. 
 
 Henkle v. Allstadt, 285. 
 
 Henkle v. Dillon. 13. 
 
 Henley r. Hotaling, 231. 
 
 Henley v. Robb, 393. 
 
 Henney v. Wood, 521. 
 
 Hennessey v. Andrews, 229. 
 
 Hennesy v. Farrell, 243. 
 
 Hennesy v. Walsh, 367. 
 
 Henning v. Burnett, 438. 
 
 Henry v. Carson, 576. 
 
 Henry r. Davis, 228, 238. 
 
 Henry v. Henry, 690. 
 
 Ixix
 
 TABLE OF CASES C1TEC. 
 
 [References are 1o Seclions.] 
 
 Henry V. Tupper. 209. 237. 
 
 Henser r. Allen. 641. 
 
 Henshaw v. Bissell. 510. 
 
 Henshaw v. Wells, 245. 
 
 Henson v. Westcott, 217. 
 
 Hcnthorn r. Securities Co., 227. 
 
 Hepburn r. Dubois, 558. 
 
 Hepburn r. Snyder, 217. 
 
 Heppe r. Sezepanski, 191. 
 
 Herbert v. Pue, 608. 
 
 Herbert v. Wren. 108, 118. 
 
 Herbert v. Wrenomitch, 118. 
 
 Herberts v. Herberts, 407. 
 
 Herchefeldt v. George, 566. 
 
 Herdman v. Bratten, 579. 
 
 Hereford v. Pusch, 12. 
 
 Herman v. Roberts, 434. 
 
 Herman v. Schmaltz, 498. 
 
 Herrick r. Atwood. 214. 
 
 Herrick v. Babcock, 408. 
 
 Herrick f. Malin, 554. 
 
 Herrin v. Brown. 122. 
 
 Herron v. Williamson, 96. 
 
 Hershy v. Berman, 411. 
 
 Herskell v. Bushnell, 160. 
 
 Hersky v. Clarke, 179. 
 
 Hertz v. Abrahams, 45. 
 
 Hes v. Martin, 380. 
 
 Hesley v. Bartlett, 633. 
 
 Heslop v. Gatton, 463. 
 
 Hesperia' Land, etc., Co. v. Rogers, 504. 
 
 Hess r. Kennedy, 432, 433. 
 
 Hessel v. Johnson, 156. 
 
 Hesseltine v. Seavoy, 156. 
 
 Hester r. Glasgow, 574. 
 
 Heth v. Cocke, 100, 273. 
 
 Hetherington v. Clark, 584, 585. 
 
 Hetherington v. Graham, 98. 
 
 Hewitt v. Loosemore, 214. 
 
 Hewhus v. Shippam, 46. 467. 
 
 Heyer v. Pruyn, 247, 273. 
 
 Heyman v. Heyman, 76. 
 
 Heyman v. Lowell, 273. 
 
 Hibbard v. Lamb, 378. 
 
 Hibbard v. Ransdell, 157. 
 
 Hibbard v. Smith. 576. 
 
 Hibblewhite v. McMorine, 553. 
 
 Hibernia Nat. Bank v. Sarah Planting & 
 
 Refining Co., 10. 
 Hicklin v. McClear, 504. 
 Hickman v. Dill, 277. 
 Hickman v. Irvine, 62. 
 Hicks v. Bowling, 139. 
 Hicks v. Coleman, 595, 597. 
 Hicks v. Hicks, 230. 
 Hicox v. Chicago, etc., R. R., 435. 
 Hidden v. Jordan, 269. 
 Hidden v. Krekchmar. 238. 
 Hide v. Thornborough, 448. 
 Hiern v. Mill. 214. 
 Hieser v. Sutler, 118, 119. 
 Hiester v. Madeira, 231. 
 Higdon v. Higdon, 367. 
 Higginbotham ?'. Barton, 245. 
 Higginbotham v. Cornell, 118. 
 Higginbottom v. Short, 192. 
 Higgins v. Breen, 95. 
 Higgins v. Cal. Pet. Co., 5. 
 Higgins v. Carlton, 634. 
 Higgins v. Higgins, 123. 
 Higgins v. Tamesburg Co., 249. 
 Higgins v. Kendall, 217. 
 
 Ixx 
 
 Highstone v. Burdette, 186. 
 
 Hilbourn v. Fogg, 162, 164. 
 
 Hildreth v. Conant, 163. 
 
 Hildreth v. Thompson, 85. 
 
 Hill v. Bacon, 617. 619. 
 
 Hill v. Bk. of London, 463. 
 
 Hill v. Baron, 297. 
 
 Hill v. Osloom, 480. 
 
 Hill v. Coats, 149. 
 
 Hill v. Deu, 373. 
 
 Hill v. Eliott, 368. 
 
 Hill v. Hewitt, 246. 
 
 Hill v. Hill, 13, 466. 
 
 Hill v. Jordan, 163, 245. 
 
 Hill v. Lord, 424, 608. 
 
 Hill v. McCarter, 582. 
 
 Hill v. McCord, 519. 
 
 Hill v. McRae, 370. 
 
 Hill v. Meeker, 582. 
 
 Hill v. Meyers, 122, 365. 
 
 Hill v. Miller, 521. 
 
 Hill v. More, 250. 
 
 Hill v. Mowry, 552. 
 
 Hill v. Munday, 13. 
 
 Hill v. Pike, 86. 
 
 Hill v. Pixley, 242. 
 
 Hill v. Reno, 195. 
 
 Hill v. Roderick, 300. 
 
 Hill v. Sewald, 13, 15. 
 
 Hill v. Smith, 239. 
 
 Hill v. Woodman, 151. 
 
 Hilliard v. Scoville, 195. 
 
 Hilliary v. Hilliary's Lessee, 387. 
 
 Hillman v. Bonslaugh, 321, 322. 
 
 Hills v. Barnard, 27, 301. 
 
 Hills v. Bearse, 558. 
 
 Hills v. Chicago. 533. 
 
 Hills v. Dey, 197. 
 
 Hills v. Loomis, 233. 
 
 Hills v. Miller, 427. 
 
 Hillyer v. Bennett. 556. 
 
 Hillyer v. Vandewater, 399. 
 
 Hiltengen r. Scheick, 148. 
 
 Hilton v. Gilman, 2. 
 
 Hilton v. Lathrop, 26fi. 
 
 Hilton v. Otoe Co. Bank. 276. 
 
 Hinchcliff v. Hinman, 581. 
 
 Hinchcliffe v. Wcr.twood, 642. 
 
 Hinchman v. Stiles, 85. 281. 
 
 Hinde's Lessee T. Loneworth, 566. 
 
 Hinds v. Allen, 272, 275. 
 
 Hinds v. Ballon, 94, 258. 
 
 Hine v. Railroad Co., 68. 
 
 Hinneman v. Rosenbeck, 640. 
 
 Hines v. Allen, 624. 
 
 Hines v. Franth^m, 178. 
 
 Hines v. Robinson, 190. 
 
 Hines v. Ward, 242. 
 
 Hinman v. Booth, 579. 
 
 Hinsdale v. Humphrey, 142, 587. 
 
 Hinton v. Walston, 7. 
 
 Hipp v. Hackett, 587. 
 
 Hitch v. Wells, 633. 
 
 Hitchcock v. Carpenter, 92. 
 
 Hitchcock v. Harrington, 87, 113. 
 
 Hitchcock v. Merrick, 250. 
 
 Hitchcock v. U. S. Bk. of Pa., 272. 
 
 Kitchens v. Kitchens, 86, 296. 
 
 Hitt v. Holiday, 255. 
 
 Hoagland v. Crum, 55. 
 
 Hoagland v. Latourette, 583. 
 
 Hobbs v. Hobbs, 420.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Hoboken Land Co. v. Kerrigan, 601. 
 
 Ilobson v. Silva, 155. 
 
 Hobson v. Trevor, 359. 
 
 Hockenbury v. Snyder, 157. 
 
 Mocker v. Hocker, 635. 
 
 Hodgden v. Heidman, 247. 
 
 Hodge v. Boothby, 598. 
 
 Hodge v. Weeks, 231. 
 
 Hodgens v. Powell, 601. 
 
 Hodger v. Taylor, 236. 
 
 Hodges v. Eddy, 493, 494. 
 
 Hodges v. Rowing, 604. 
 
 Hodges v. Shields, 157. 
 
 Hodges v. Thayer, 025. 
 
 Hodgkin v. McVeigh, 496. 
 
 Hodgkinson v. Petitioner, 195. 
 
 Hodgson v. Butts, 581. 
 
 Hods v. Tiernon, 5<>4. 
 
 Hodson v. Treat, 273. 
 
 Hoester v. Hemsath, 445. 
 
 Hoffar v. Dement, 180. 
 
 Hoffey v. Carey, 236. 
 
 Hoffman v. Armstrong, 8. 
 
 Hoffman v. Bell, 532. 
 
 Hoffman v. Clark, 170. 
 
 Hoffman v. Harrington, 278. 
 
 Hoffman v. Hoffman, 633. 
 
 Hoffman v. Porter, 562. 
 
 Hoffman v. Stigers, 176, 181. 
 
 Hoffman v. Strohecker, 585. 
 
 Hoffman v. White, 504. 
 
 Hogan v. Brainard, 238. 
 
 Hogan v. Jaques, 366. 
 
 Hogan v. Manners, 123. 
 
 Hogan v. Page, 562. 
 
 Hogan v. Stayhorn, 366. 
 
 Hogan's Exrs. v. Calvert, 616. 
 
 Hogden v. Heidman, 273. 
 
 Hoge v. Eaton, 444. 
 
 Hoge v. Hoge, 368, 388. 
 
 Hogg v. Lusk, 596. 
 
 Hogsett v. Ellis, 172, 245. 
 
 Hogue v. Steel, 126. 
 
 Hoitt v. Hoitt, 642. 
 
 Hoitt v. Russel, 278. 
 
 Holbrook v. Bowen, 497. 
 
 Hollbrook v. Chamberlain, 16. 
 
 Holbrook v. Forsythe, 494. 
 
 Holbrook v. Gelly, 7. 
 
 Holbrook v. Governeur, 495. 
 
 Holbrook v. Greene, 244. 
 
 Holbrook v. Tirrell, 518. 
 
 Holbrook v. Young. 162. 
 
 Holburn v. Pfanmillers, 122. 
 
 Holcomb v. Coryell, 593. 
 
 Holcomb v. Holcomb, 273. 
 
 Holcomb v. Luke, 640. 
 
 Holcomb v. Mooney, 590. 
 
 Holden v. Boring, 55. 
 
 Holden v. Fletcher, 620. 
 
 Holden v. Stickney, 282. 
 
 Holder i: Coates, 8. 
 
 Holderby v. Walker. 388. 
 
 Holdridge v. Gillespie, 235. 
 
 Holdroff v. Resold, 272. 
 
 Holeman v. Boiling Spring Co., 452. 
 
 Holladay v. Menefee, 625. 
 
 Hollady v. Daily, 670. 
 
 Hollahan v. Sowers, 191. 
 
 Holland v. Citizens Sav. Bank. 258. 
 
 Hollenbeck v. McDonald, 431. 
 
 Hollenberger v. Yankee, 60. 
 
 Hol'.ey v. Hawley, 498. 
 
 Holliday v. Achle, 140, 164 
 
 Holliday v. Cronwell, 492. 
 
 Holliday v. Hively, 74. 
 
 Holliger v. Bates, 261. 
 
 Hollinshead v. Simms, 368. 
 
 Hollis v. Burns, 164. 
 
 Hollis v. Pool, 172. 
 
 Holloman v. Holloman, 104. 
 
 Holloway v. Holloway, 195. 
 
 Holman v. Bailey, 254. 
 
 Holman v. Wesner, 37, 45. 
 
 Holmes v. Best, 191. 
 
 Holmes v. Coghill, 420. 
 
 Holmes v. Fisher, 237. 
 
 Holmes v. Grant, 229, 231. 
 
 Holmes v. Hall, 277. 
 
 Holmes v. Holmes, 192. 
 
 Holmes v. McGinty, 251. 
 
 Holmes v. Mead, 641. 
 
 Holmes v. Railroad, 516. 
 
 Holmes v. Seeley, 438. 
 
 Holmes v. Standard Pub. Co., 16. 
 
 Holmes v. Tremper, 16. 
 
 Holmes v. Front, 518. 
 
 Holmes v. Turners' Falls Lumber Co., 
 
 277. 
 
 Holmes v. Warren, 233. 
 Holridge v. Gillespie, 368. 
 llolsen v. Kockhouse, 408. 
 llolston v. Needles, 592. 
 Holt v. Agnew, 558. 
 Holt v. Rees, 254. 
 Holt v. Robertson, 191. 
 Holt v. Sargent, 441. 
 Ilolten v. Guim, 86.. 
 llolterhoff v. Mead, ' 187. 
 Holton v. Whitney, 497. 
 Home Life Ins. Co. v. Sherman, 152. 
 II nme v. Richards, 599. 
 Homer v. Homer, 368, 374. 
 Homer v. Watson, 448. 
 How v. How, 367, 368. 
 llondonf v. Hobs, 559. 
 lloniet v. Bacon, 397. 
 Honore v. Bakwell, 217, 219. 
 llonore v. Hutchings, 231. 
 llonore i>. Lamar Ins. Co., 248. 
 Honywood v. Honeywood, 62. 
 Hood v. Clark, 209. 
 Hood v. Easton, 246. 
 Hood v. Haden, 298, 408. 
 Hoodlers v. Reid, 278. 
 Hoogland v. Watt, 100. 
 Hook v. Garfield Coal Co., 105. 
 Hook v. N. W. Thresher Co., 123. 
 Hooker v. Hooker, 86. 
 Hooper v. Cummings, 207. 
 Hoover v. Hoover, 301. 
 Hoovey v. Newton, 617. 
 Hope v. Stone, 621. 
 
 Hopewell Mills v. Staunten Bank, 11, 14. 
 Hopkins v. Garrard, 217. 
 Hopkins v. Glunt, 373. 
 Hopkins v. Hopkins, 342. 
 Hopkins v. Lee, 625. 
 Hopkins v. Ward, 274. 
 Hopkinson v. Dumas, 88, 367. 
 Hopkinson v. Rolt, 263. 
 Hopkinson v. Stephenson, 269. 
 Hopper v. Haines, 160. 
 Hopper v. Hopper, 109. 
 
 Ixxi
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 v. Burnham, 580. 
 Hoppoci r. Tucker, 642. 
 Horn r. Ketellas. 283. 
 Horn t-. Peterer. 208. 
 Hornbeck r. Westbrook, 562, 608. 
 Home r. Smith. 13. 
 llorncr r. Leeds, 130, 157. 
 Horncr f. Stillwell. 435. 
 Homer r. Watson. 448. 
 Horncr v. Trimmerman, 275. 
 Horning f. Wiedcrspalen, 463. 
 Hornsey v. Casey, 118. 
 Honey t'. Horsey, 202. 
 Horsey f. Hough, 278. 
 Horsford r. \V right, 625. 
 Horslcy r. Hilburn, 45. 
 llortshorn r. Cleveland, 625. 
 Hortsman v. Gerker, 253. 
 Horton v. Davidson, 497. 
 Horton f. Homer, 219. 
 Horton r. Kelly, 290. 
 Horwitz f. Norris, 412. 
 Hosford v. Mcrriam, 194. 
 Hosie f. Gray, 272. 
 Hosmer r. Carter, 238. 
 Ilospcs t'. Ahusted, 242. . 
 Host f. Kearney, 147. 
 Hosteller v. Slate, 640. 
 Hotchkiss r. Kiting, 403. 
 Hougan v. Milwaukee, etc., R. R., 445. 
 Iliiuuli r. Bailey, 236, 247. 
 Hough r. Birge', 166. 
 Houghton v. HapgooJ, 79, 287. 
 Houghton f. Jones, 581. 
 House v. House, 54, 367. 
 Houser v. Lamopt, 22'.). 
 Houser r. Reynolds, 557. 
 Houston v. Blythe, 197. 
 Houston v. Smith, 86, 135. 
 Houston St. Co. r. Hubbard, 579. 
 Houston v. Workman, 505. 
 Hout v. Hout, 417. 
 llovey v. Hobsen, 556. 
 llovey v. Sawyer, 595. 
 How v. Vigures, 225. 
 Howard r. Ames, 278, 279. 
 Howard v. Carpenter, 163, 418. 
 Howard v. Carusi, 298. 
 Howard v. Davis, 279. 
 Howard v. Gresham, 254. 
 Howard v. Handy, 273. 
 Howard v. Harris, 234. 
 Howard v. How, 254. 
 Howard r. Houghton, 243. 
 Howard v. Hudson, 509. 
 Howard r. Huffman, 518. 
 Howard v. Merriam, 163. 
 Howard v. Criest, 185. 
 Howard v. Reedy, 497. 
 Howard v. Tomichie, 159. 
 Howard v. Watson, 118. 
 Howard v. Wheatley, 202. 
 Howbert v. Cowthorn, 307. 
 Howe v. Adams, 121, 127. 
 Howe r. Alger, 601. 
 Howes v. Barmon, 465, 467. 
 Howe v. Batchelder, 59, 563. 
 Howe v. Freeman, 238. 
 Howe v. Howe, 557. 
 Howe v. Lewis, 254. 
 Howe v. Russell, 228. 
 Howe v. Wilder, 257, 518. 
 
 Ixxii 
 
 Howell v. Ackermam, 30. 
 
 Howell v. Howell, 367. 
 
 Ilowell v. Price, 224. 
 
 Howell v. Ray, 574. 
 
 Howell v. Richards, 614. 
 
 Howell v. Saule, 592. 
 
 Howell v. Schenck, 58. 
 
 Ilowell v. Tyler, 404. 
 
 Howland v. Coffin, 143, 147. 
 
 Howland v. Shurlteff, 247. 
 
 Howse v. Barber, 30. 
 
 Howse v. Dew, 593. 
 
 Hoxsie v. Ellis, 85. 
 
 Iloxie v. Finney, 622. 
 
 Hoy v. Bramhall, 257. 
 
 Hoy v. Holt, 146, 151. 
 
 lloyle v. Cazabat, 254. 
 
 Iloyle v. Plattsburg, etc., R. R., 238. 
 
 Hoyleman v. Kanawha, 146. 
 
 Hoyt -v. Bradley, 237. 
 
 Hoyt v. Hoyt, 463. 
 
 Hoyt v. Kimball, 202. 
 
 Hoyt v. Swar, 97. 
 
 Hoyt v. Thompson, 249. 
 
 Hubbard v. Gain, 592. 
 
 Hubbard v. Hubbard, 207. 
 
 Hubbard v. Little, 499. 
 
 Hubbard v. Sage Land Co., 126. 
 
 Hubbard v. Shaw, 57, 246. 
 
 Hubbard v. Town, 443. 
 
 Hubbell v. Medbury, 368. 
 
 Hubbell v. Monkon, 243, 246. 
 
 Hubbell v. Sibley, 278. 
 
 Huckaba v. Abbott, 236. 
 
 Huckins v. Straw, 239. 
 
 Huckshorn v. Hartwig, 497. 
 
 Iluddleston v. Bellevue, 445. 
 
 Hudgens v. Wilkins, 301. 
 
 Hudnit v. Nash, 273. 
 
 Hudson v. Poindexter, 572. 
 
 Hudson v. Putney, 497. 
 
 Huff v. Farnell, 285. 
 
 Huff v. McCauley, 467, 503. 
 
 Huff v. McDonald, 191. 
 
 Huff v. Webb, 574. 
 
 Hughes v. Blackwell, 247. 
 
 Hughes v. Bucknell, 245. 
 
 Hughes v. Devlin, 195. 
 
 Hughes v. Edwards, 243, 247. 
 
 Hughes v. Hatchett, 220. 
 
 Hughes v. Hodges, 126. 
 
 Hughes v. Holliday, 178. 
 
 Hughes v. Nicklas, 401. 
 
 Hughes v. Pickering, 497. 
 
 Hughes v. Robotham, 155. 
 
 Hughes v. Lawrence, 257. 
 
 Hughes v. Watson, 97. 
 
 Hughes v. Wells, 417. 
 
 Hughes v. Woley, 236. 
 
 Hughes v. Worley, 262. 
 
 Huggins v. Hall, 274. 
 
 Hughey v. Gregg, 92. 
 
 Huie v. Gunter, 634. 
 
 Hulett v. Inlow, 181. 
 
 Hulett v. Stockwell, 139. 
 
 Hulett v. Whipple, 217. 
 
 Hulick v. Scovil, 520. 
 
 Hull v. Beals, 321. 
 
 Hull v. Burns, 146. 
 
 Hull v. C. B. & Q. R. R. Co., 433. 
 
 Hull v. Hull, 90. 
 
 Hull v. Vaughan, 166.
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.] 
 
 Hulme v. Shreve. 435. 
 Hulme v. Montgomery, 479. 
 Humberston v. Humberston, 312. 
 Hummer v. Schott, 217. 
 Humphries v. Brogden, 448, 449. 
 Humphries v. Huffman, 495. 
 Humphries v. Humphries, 58. 
 Humphreys v. Newman, 584. 
 Hundley v. Mount, 584. 
 Hungerford -v. Bent, 146. 
 Hunkins v. Hunkins, 88. 
 Hunkley v. Green, 186. 
 Humerell r. Fargloe, 195. 
 Hunt v. Danforth, 147. 
 Hunt v. Holl, 68. 
 Hunt v. Hunt, 247, 548. 
 Hunt v. Maynard, 246. 
 Hunt -v. McHenry, 596. 
 Hunt v. Roberts, 368. 
 Hunt v. Rousmanier, 410, 569. 
 Hunt v. Searcy, 49. 
 Hunt if. Thompson, 149. 
 Hunt r. Wickliff, 522. 
 Hunt v. Wright, 192, 204. 
 Hunter v. Dennis, 255. 
 Hunter v. Kelly, 494. 
 Hunter v. Martin, 184. 
 Hunter v. Miller, 569. 
 Hunter v. Osterhout, 208. 
 Hunter v. Patterson, 49. 
 Hunter v. Porter, 143, 462. 
 Hunter v. Watson, 662. 
 Huntington v. Allen, 493. 
 Huntington v. Asher, 424. 
 Huntington v. Cotton, 239. 
 Huntington v. Havens, 512. 
 Huntington v. Whaley, 493, 497. 
 Huntley v. Cline, 199. 
 Huntly v. Russell, 60. 
 Hunton v. Nickols, 495. 
 Kurd v. Case, 278. 
 Hurd v. Curtis, 608, 624. 
 Hurd v. dishing, 46. 
 Hurlburt v. Post, 153. 
 Hurley v. Hurley, 187. 
 Hurley v. Mclver, 118. 
 Huron v. Wilcox, 205. 
 Hurser v. Anderson, 257. 
 Hursey v. Hursey, 233. 
 Hurst v. McNiel, 343. 
 Hurst v. Rodney, 149, 626. 
 Huse v. Dew, 577. 
 Huson v. Wallace, 368. * 
 
 Huson v. Young, 435. 
 Huss v. Morris, 417. 
 Huss v. Stepens, 561. 
 Hussey v. Blood, 187. 
 Huston v. Cantril, 566. 
 Hutch v. Holly, 127. 
 Hutchins v. Byrnes, 550, 571. 
 Hutchins v. Carleton, 250. 
 Hutchins v. Heywood, 370. 
 Hutchins v. King, 8, 238. 
 Hutchins v. Low, 522. 
 Hutchins v. Moody, 616. 
 Hutchins v. Mum, 450. 
 Hutchins v. State Bank, 410. 
 Hutchinson v. Chase, 190. 
 Hutchinson v. Wells, 253. 
 Huth v. Corondelet, 557. 
 Hnttemeier v. Albro, 432. 
 Hutton v. Moore, 219. 
 
 Huxley -'. Rice, 268. 
 
 Huyler v. Atwood, 253. 
 
 Hyatt v. Pugsley, 478. 
 
 Hyatt v. Wood, 170. 
 
 Hybart v. Jones, 108. 
 
 Hyde v. Hartford Ins. Co., 248. 
 
 Hyde v. Sone, 190. 
 
 Hyland v. Habich, 236. 
 
 Hyman v. Devereux, 251, 277. 
 
 Hyman v. Read, 519. 
 
 Hymes v. Burnstein, 494. 
 
 Hynes v. Ecker, 139. 
 
 Hyndman v. Hyndman, 225, 235. 
 
 Hyne v. Osborne, 576. 
 
 Ide v. Ide, 298. 
 
 Idle v. Cook, 39. 
 
 Idley v. Bowen, 645. 
 
 Ilfeld v. DeBoca, 580. 
 
 111. Cent. R. R. v. McCullaugh, 579. 
 
 111. Ins. Co. v. Stanton, 248. 
 
 Illinois R. R. Co. v. Indiana R. R., 608. 
 
 Illinois Starch Co. v. Ottawa Hydraulic 
 Co., 132. 
 
 Illinois Steel Co. v. Budzisz, 517. 
 
 Use v. Lannsheimer, 590. 
 
 Inderlied v. Honeywell, 616. 
 
 Ingalls v. St. Paul, etc., R. R. Co., 9. 
 
 Ingersoll v. Sergeant, 460. 
 
 Ingle v. Culbertson, 278. 
 
 Ingle v. Partridge, 380. 
 
 Ingle v. Vaughan Jenkins, 43. 
 
 Inglehart v. Armiger, 219. 
 
 Inglehart v. Crane, 289, 582. 
 
 Ingleruff v. Robb, 282. 
 
 Inglis v. McCook, 407. 
 
 Inglis v. McCosk, 417. 
 
 Inglis v. Trustees of Sailors Snug Har- 
 bor, 641. 
 
 Ingoldsby v. Juan, 558. 
 
 Ingraham v. Baldwin, 556. 
 
 Ingraham v. Disborough, 253. 
 
 Ingraham v. Wilkins, 599. 
 
 Ingraham v. Wyatt, 635. 
 
 Ingram v. Hall, 573. 
 
 Ingram v. Porter, 631. 
 
 Ingram v. Sherwood's Heirs, 532. 
 
 Inhabitants, etc., v. Huntress, 553. 
 
 Imlay v. Huntington, 73. 
 
 Insurance Co. v. Elwell. 253. 
 
 International Bk. v. Bowen, 257. 
 
 International Co. ?'. Cichowicz, 529. 
 
 International Press Ass'n v. Brooks, 144. 
 
 Investment Co. r. Adams, 275, 243. 
 
 Investment Co. v. Fulton, 249. 
 
 Iowa College Trustees v. Fenno, 260. 
 
 Iowa Loan & T. Co. v. Mowery, 260. 
 
 Iron v. Adler, 497. 
 
 Irvin v. Clark, 302. 
 
 Irvin v. Garner, 218. 
 
 Irvjne v. Irvine, 557. 
 
 Irvine 7'. Marshall, 579. 
 
 Irvine v. Muse, 218. 
 
 Irving v. Campbell, 97. 
 
 Irving v. Cunningham, 592. 
 
 Irwin v. Corode, 64. 
 
 Irwin v. Tackes, 632. 
 
 Irwin v. Longworth, 609. 
 
 Irwin v. Parkes, 371. 
 
 Isbell v. Jones, 566. 
 
 Ixxiii
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 l*ctt : . Lucas. S51. 
 Uham f. Bennington, 670. 
 Nham t. Morgan, 8. 
 I -.'in f. Oil Co., 60. 
 Israel r. Israel, 191. 
 Ives f. Davenport, 411. 
 Iory f. Burns, S74, 567. 
 Izard f. Middleton. 644. 
 Icon r. Gorton, 164. 
 
 ckinan f. Kingland, 231. 
 cks f. Henderson, 6:M, 651. 
 ckson f. Andrew, C6, 550. 
 ckson f. Aller, 207. 
 ckson f. Beach, 54S. 
 ackson v. Billinger, 397. 
 ackson f. Binnicker, 276. 
 ackson f. Blanshan, 387, 640. 
 ackson f. Blodgett, 251. 
 ackson f. Bodle, 137, 578. 
 Tackson r. Bowen, 236, 253. 
 Jackson r. Bradford, 514, 547. 
 Jackson f. Bradt, 164. 
 Tackson t'. Brown, 312. 
 Tackson r. Brownson, 57, 61. 
 Tackson r. Bryan, 168. 
 Tackson r. Bull, 30. 
 ackson f. Burchin, 557 
 ackson r. Cadwell. 530, 548. 
 ackson f. Catlin, 333, 579. 
 .ackson f. Carey, 342, 575. 
 Jackson v. Carpenter, 556, 557. 
 Tackson f. Catlin, 33, 579. 
 Jackson r, Cator, 66. 
 Tackson v. Chase, 554. 
 Tackson r. Chew, 393. 
 Jackson r. Churchill, 109. 
 Tackson v. Clark, 592. 
 Tackson v. Cody, 562. 
 Tackson v. Collins, 158. 
 Jackson r. Corliss, 140. 
 Jackson v. Crafts, 278. 
 ackson v. Croy, 529. 
 ackson v. Crysler, 207. 
 ackson f. Delacroix, 135. 
 ackson v. DcLancey, 240, 245. 
 ackson v. Denniston, 634. 
 ackson r. Dewitt, 87. 
 ackson v. Deyo, 163. 
 ackson t'. Diettendorff, 506, 594. 
 ackson v. Dillon, 565. 
 Jackson v. Doll, 142, 159. 
 ackson v. Dubois, 243, 260. 
 ackson v. Dun lap, 137. 
 ackson f. Dunsbaugh, 355. 
 ackson r. Eldridge, 136. 
 Jackson v. Eli, 432. 
 ackson v. Elmendorf, 393. 
 ackson v. Elston, 494. 
 ackson v. Everett, 44. 
 ackson v. Florence, 565. 
 ackson r. Foster, 498. 
 ackson v. Gardner, 156. 
 Tackson v. Gilchrist, 558. 
 Jackson v. Given, 378. 
 Jackson v. Gumaer, 556. 
 Tackson v. Harder, 193. 
 Jackson v. Hardin, 637. 
 Tackson v. Harrison, 150. 
 Jackson v. Hart, 485. 
 
 Ixxiv 
 
 'ackson r. Hart well, 340. 
 
 ackson r. Hathaway, 601. 
 
 ackson v. Henry, 278. 
 
 ackson v. Hixon, 114. 
 
 ackson v. Hoffman, 512. 
 
 ackson v. Hoover, 631. 
 
 ackson v. Hopkins, 244, 253. 
 
 ackson v. Housell, 30. 
 
 ackson v. Hoyner, 574, 575. 
 
 ackson v. Hubble, 547. 
 
 ackson v. Hull, 243. 
 
 ackson v. Ireland, 609. 
 
 ackson v. Jackson, 483, 632. 
 
 ackson v. Jansen, 407. 
 
 ackson r. Johnson, 80. 
 
 ackson v. Jones, 233. 
 
 ackson v. Ketchums, 559. 
 
 ackson v. King, 556. 
 
 ackson v. Kipp, 150. 
 . ackson v. Kisselbrack, 136. 
 T ackson v. Langhead, 147. 
 Jackson v. Lawrence, 233. 
 Jackson v. Leggett, 559. 
 Jackson v. Lill, 640. 
 Jackson v. Livingstone, 586. 
 Jackson v. Loomis, 500. 
 Jackson v. Losse, 273. 
 Jackson v. Lynch, 231, 247. 
 "ackson v. Mancius, 51. 
 . ackson 7'. Matdurf, 367, 514. 
 Jackson v. McCall, 596. 
 Jackson v. McKenny, 543. 
 Jackson v. McLeod, 164. 
 Jackson v. Miller, 1C6. . 
 Jackson v. Miner, 562. 
 Tackson v. Minkler, 253. 
 Fackson v. Moore, 178, 482. 
 Tackson v. Morse, 365. 
 fackson v. Murray, 511, 621. 
 Tackson v. Myers, 46, 136. 
 fackson v. Newton, 494. 
 'ackson v. Odell, 153, 
 'ackson v. O'Donaghy, 85. 
 ackson v. Ogden, 510. 
 'ackson r. O'Roark, 178. 
 ackson v. Osborn, 554. 
 ackson v. Parkhurst, 170. 
 ackson v. Peck, 622. 
 ackson v. Phillips, 641. 
 ackson v. Phipps, 577. 
 ackson v. Pierce, 165. 
 ackson v. Reeves, 603. 
 ackson v. Richards, 137. 
 ackson v. Roberts, 529. 
 ackson v. Rowland, 157, 579. 
 ackson v. Salmon, 164. 
 ackson v. Schauber, 378, 407. 
 ackson v. Schoomaker, 574, 576. 
 ackson v. Sebring, 548. 
 ackson v. Sellick, 80. 
 ackson v. Sharp, 497. 
 ackson v. Sheldon, 579. 
 ackson v. Shepard, 532. 
 ackson v. Slater, 247. 
 ackson v. Snodgrass, 504. 
 ackson v. Spear, 157. 
 ackson v. Stackhouse, 254. 
 ackson v. Staats, 393. 
 ackson v. Stevens, 514, 621. 
 ackson v. Swart, 543. 
 ackson v. Tibbits, 60. 186.
 
 TABLE OF CASES CITED. 
 
 - [References arc to Sections.] 
 
 Jackson v. Topping, 207. 
 Jackson v. Town, 58:!. 
 Jackson v. Vanderheyden, 85, 529. 
 Jackson v. Van Duysen, 632. 
 Jackson v. Van Hoesen, 51. 
 Jackson v. Vanslick, 3SO. 
 Jackson v. Van Zandt, 45. 
 Jackson v. Vincent, 158. 
 Jackson v. Waldron, 512. 
 Jackson v. Walker, 370. 
 Jackson r. Walsh, 279. 
 Jackson v. Walters, 294. 
 Jackson v. Wendel, 572. 
 Jackson v. Wheat, 492, 497. 
 Jackson v. Wheeler, 158. 
 Jackson v. Whitbeck, 186. 
 Jackson v. Willard, 239, 250. 
 Jackson v. Winslow, 622. 
 Jackson v. Wood, 572, 634. 
 Jackson v. Wright, 566. 
 Jacob v. Yale, 514. 
 
 acobs v. Allard, 444. 
 
 acoby v. Crowe, 260. 
 
 acoby v. Parkland Distilling Co., 123. 
 
 acocks v. Gilliam, 514. 
 
 acoway v. Gault, 574. 
 
 acquat v. Bachman, 141. 
 
 affe v. Harteau, 146. 
 
 affers v. Aneals, 126. 
 
 ahway v. Barrett, 494. 
 
 amaica Pond v. Chandler, 606. 
 
 ames v. Cowing, 3SO. 
 
 ames v. Dean, 163. 
 
 ame 
 
 me 
 
 nes v. James, 124. 
 
 nes v. Johnson, 250, 582. 
 
 nes v. Johnstone, 229. 
 
 ami 
 
 ames v. "Marvin, 649. 
 
 ames. v. Morey, 242, 584. 
 
 ames v. Plant, 606. 
 
 ames v. Rice, 213. 
 
 ames v. Stiles, 532. 
 
 ames v. Thomas, 234. 
 
 ames v. Vanderheyden, 579. 
 
 ames v. Whitbread, 562. 
 
 ames v. Worcester, 239. 
 
 ames v. Wynford, 399. 
 
 ami-son v. Emerson, 233. 
 
 amieson v. Milleman, 467. 
 
 amison v. Smith, 557. 
 
 amison v. Wesner, 126. 
 
 ane v. Gregory, 579. 
 
 anes v. Dougherty, 632. 
 
 anes v. Jenkins, 619. 
 
 anes v. Penny, 573. 
 
 anes v. Throckmorton, 498. 
 
 anis v. Patterson, 494. 
 
 aques v. Gould, 149. 
 
 aques v. Methodist Church, 578. 
 
 aques v. Weeks, 236, 584. 
 
 aqui v. Johnson, 435. 
 
 arvis v. Aikens, 582. 
 
 arvis 7-. Davis, 31. 
 
 arvis v. Dutcher, 213, 210. 
 
 effers v. Sydnam, 54. 
 
 effersonville, etc., R. Co. v. Oyler, 604. 
 
 effray v. Tower, 368. 
 
 effrey v. Hursh, 229. 
 
 effries v. Allen, 90. 
 
 encks v. Alexander, 270, 367. 
 
 enkins v. Berry, 641. 
 
 enkins v. Compton, 298, 408. 
 
 Jenkins r. Doolittle, 368. 
 
 Jenkins r. Freyer, 302. 
 
 Jenkins r. Frink, 368. 
 
 Jenkins r. Gething, 16. 
 
 Jenkins -. Hart, 572. 
 
 Jenkins r. Hopkins, 617. 
 
 Jenkins r. International Bank, 280. 
 
 Jenkins ?. Jenkins, 556. 
 
 Jenkins v. Smith, 274. 
 
 Jenkins v. Teager, 494. 
 
 Jenkins r. Young, 341. 
 
 Jenks i'. Alexander, 410. 
 
 Jenk's Lessee v. Backhouse, 176. 
 
 Jenks v. Morgan, 595. 
 
 Jenks v. Ward, 617. 
 
 Jennert v. Houser, 411. 
 
 Jennings v. Harrison, 509. 
 
 Jennings v. Morton, 616. 
 
 Jennings r. Ward, 234. 
 
 Jennings r. Wood, 584. 
 
 Jennison v. Hapgood, 'JO, 116. 
 
 enny v. Andrews, 420. 
 
 enny v. Jenny, 96. 
 
 erome r. Carter, 273. 
 
 ervis v. Benton, 38. 
 
 esser v. Gifford, 295. 
 
 esson v. Doe, 322. 
 
 eter v. Glenn, 626. 
 
 eter v. Penn, 160. 
 
 etter v. Lyon. 204, 207. 
 
 ewell v. Warner, 45. 
 
 ewett v. Brock, 121. 
 
 ewett v. Foster, 593. 
 
 ewett v. Jewett, 435. 
 
 ewett v. Whitney, ISO, 435. 
 
 ewett's Lessee v. Stockton, 593. 
 
 obe v. O'Brien, 285. 
 
 offe v. Harteau, 151. 
 
 ohannes v. Kielgast, 172. 
 
 ohn v. Bumpstead, 278. 
 
 ohn Hancock, etc., v. Patterson, 432. 
 
 ohn v. Nut, 238. 
 
 ohn van Range Co. r. Allen, 13. 
 
 ohnes v. Beers, 301. 
 
 ohns v. Church, 236. 
 
 ohnson v. Anderson, 257. 601. 
 
 ohnson v. Beauchamp, 106. 
 
 ohnson v. Blair, 11)0. 
 
 ohnson v. Blydenburg, (526, 238. 
 
 ohnson v. Bowtock, 547. 
 
 ohnson r. Boorman, 447. 
 
 ohnson v. Brailsford, 645. 
 
 ohnson v. Buckhaults. 272. 
 
 ohnson 'f. Callmon, 574. 
 
 ohnson v. Calloway, 574. 
 
 ohnson v. Camp, 59. 
 
 ohnson i>. Cawthorne, 217. 
 
 ohnson r. Clark, 185. 
 
 ohnson Co. v. Wood. 592. 
 
 ohnson v. Collins, 522, 625. 
 
 ohnson v. Copeland, 629. 
 
 ohnson v. Cornett, 250. 
 
 ohnson v. Gushing, 420. 
 
 ohnson v. Dougherty, 368. 
 
 ohnson v. Elliott, 116. 
 
 ohnson v. Elwood, 532. 
 
 ohnson's Exr. r. Citizens Bk., 393. 
 
 ohnson v. Farley, 576. 
 
 ohnson v. Farrell, 637. 
 
 ohnson v. Colder, 275. 
 
 ohnson v. Gordon, 116. 
 
 Ixxv
 
 TABLE OF CASES CITED. 
 
 [Kcferences are to Sections.] 
 
 Johnson r. Gorhnm, 497. 
 Johnson f. Hart. 182. 
 Johnson f. Johnson, 313. 
 Johnson f. Jordan. 432. 
 Johnson f. Knapp. 447. 
 Johnson r. Lehigh Valley Co., 148. 
 Johnson f. Massy. 587. 
 Johnson r. Mclntosh, 485, 519. 
 Johnson r. M. E. Church, 631.- 
 lohnson f. Mehaffy, 15. 
 Johnson r. Miller. 96, 245. 
 Johnson f. Morton. 33. 
 
 ohnson r. Nyce, 618. 
 
 ohnson f. Parker, 97. 494. 
 
 ohnson f. Phillips, 275. 
 
 ohnson f. Prairie, 559. 
 
 ohnson r. Quarles, 367. 
 ohnson r. Shank, 160. 
 
 Johnson f. Sharp, 637. 
 
 lohnson r. Shelter Island Grove, etc. 
 
 Co., 441. 
 
 Johnson r. Shields. 85. 
 Johnson r. Sjmcock, 640. 
 Johnson r. Simpson, 592. 
 Johnson v. Smith, 233. 
 
 ohnson r. Stevens, 239, 593. 
 
 ohnson's Trustee v. Johnson, 420. 
 
 ohnson r. Valentine, 301. 
 
 ohnson v. Van Dyke, 105. 
 
 ohnson r. Warren, 202, 28. 
 
 ohnson v. White, 265. 
 lohnson r. Wooding, 16. 
 Johnston v. Gray, 234. 
 Tohnstone v. Huddlestone, 156. 
 Johnston v. Hyde, 435. 
 Johnston v. Johnston, 240. 
 Johnston v. McDuff, 273. 
 Johnston v. Reilly, 368. 
 
 ohnston r. Wallace, 574. 
 
 ones v. Hunt, 105. 
 
 ones Assn. v. Clifton, 420. 
 
 ones f. Bacon, 298, 408. 
 
 ones v. IJeers, 302. 
 
 ones v. Blake, 231, 233. 
 
 ones v. Brewer, 85. 
 
 ones v. Britton, 121. 
 
 ones v. Blumenstein, 127. 
 
 ones v. Butler, 556, 557. 
 
 ones v. Cable, 640. 
 
 ones v. Carter, 569. 
 
 ones v. Chappell, 60, 66. 
 
 ones v. Chiles, 186. 
 
 ones v. Clark, 245. 
 
 ortes v. Conde. 221, 276. 
 
 ones v. Crane, 176. 
 
 ones v. Crawford, 572. 
 Jones v. Currier, 126. 
 Jones r. Davies, 155. 
 Jones v. De Lassus, 186, 608. 
 Jones r. Dexter, 368. 
 
 ones r. Dougherty, 380. 
 
 ones v. Felch, 149. 
 
 ones v. Froed, 69. 
 
 ones v. Gaddis, 493, 504. 
 _ ones r. Gibbons, 261. 582. 
 Tones r. Herrick, 504. 
 Jones r. Hill, 74. 
 Jones t>. Hough, 574. 
 Jones r. Jones, 96, 649. 
 Tones v. Kimball, 596. 
 Tones v. Laughton, 322. 
 Jones v. Loveless, 577. 
 
 Ixxvi 
 
 Jones v. Marsh, 168. 
 
 (ones v. Merchants Nat. Bank, 509. 
 
 Jones v. Moffett, 377. 
 
 Jones v. Motley, 604. 
 
 Jones v. Myrick, 285. 
 
 Jones v. Pashby, 604. 
 
 Jones v. Patterson, 69. 
 
 Jones v. Percival, 440. 
 
 Jones v. Perry, 524, 526. 
 
 Jones v. Phelps, 260. 
 
 Jones v. Pierce, 233. 
 
 Jones v. Rigby, 275. 
 
 Jones v. Robbins, 126, 127. 
 
 Jones v. Roe, 207, 292. 
 
 Jones v. Rogers, 529. 
 
 Jones v. Roper, 126. 
 
 Jones v. Sherrard, 54. 
 
 Jones v. Sheward, 287. 
 
 Jones v. Shewmake, 649. 
 
 Tones v. Thomas, 59. 
 
 (ones v. Thorn, 80. 
 
 "(ones v. Todd, 97. 
 
 Jones v. Waddy, 122. 
 
 Jones v. Wagner, 448. 
 
 Jones v. Weathersbee, 186. 
 
 Jones v. Whithead, 65. 
 
 Jones v. Winwood, 405. 
 
 Jordan v. Bryan, 160. 
 
 Jordon v. Fenno, 233. 
 
 Jordan v. Furlong, 257. 
 
 Jordan v. Lang, 504. 
 
 Jordan v. McMilty, 195. 
 
 Jordan v. Smith, 256. 
 
 Jordan v. Staples, 160. 
 
 Jordan v. Stevens, 543, 554. 
 
 Joseph v. Fisher, 87, 569. 
 
 Joslin v. Rhoades, 298. 
 
 Joslin v. Jones, 434. 
 
 Tournegy v. Brackley, 140. 
 
 Foslyn v. Wyman, 257, 262. 
 
 Joy v. McKay, 163. 
 
 Toyes v. Louisville, 300. 
 
 Toyner v. Futrell, 300. 
 
 Juck v. Fewell, 495. 
 
 luckett v. Fargo Merc. Co., 242. 
 
 Jadd v. Seekins, 242. 
 
 Tudge of Probate v. Stone, 556. 
 
 Judson v. Gibbons, 377. 
 
 Judson v. Sierra, 570. 
 
 Jumel v. Jumel, 257, 586. 
 
 Kabley v. Worcester Gas Co., 136. 
 
 Kager v. Brenneman, 86. 
 
 Kaiser v. Earhart, 514. . 
 
 Kakley v. Shelley, 225. 
 
 Kaler v. Beaman, 435. 
 
 Kalis v. Shattuck, 146. 
 
 Kalpatrick v. Mayor, 205. 
 
 Kane v. Sanger, 624. 
 
 Kane v. Vanderburgh, 68. 
 
 Kankakee, etc., R. R. v. Horan, 444. 
 
 Kannady v. McCarron, 243. 
 
 Kanovalinka v. Schlegel, 118. 
 
 Kansas City Land Co. v. Hill, 302. 
 
 Karkon v. Sawmill Co., 558. 
 
 Karn v. Haisley, 494. 
 
 Karnes v. Lloyd, 243. 
 
 Kanffelt v. Bower, 217. 
 
 Kauffman v. Fore, 127.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Kauffman v. Liggett, 159. 
 
 Kauffman v. Peacock, 90. 
 
 Kaul v. Brown, 637. 
 
 Kay v. Penn. R. R., 468. 
 
 Kay v. Whittaker, 273. 
 
 Kaye v. Kaye, 71. 
 
 Kayer v. Brenneman, 94. 
 
 Kean v. Connely, 191. 
 
 Kean v. Hoffecker, 385. 
 
 Kean t'. Kolkschneider, 138. 
 
 Keaney v. Keaney, 631. 
 
 Kearney v. Fleming, 364. 
 
 Kearney v. Kearney, 66. 
 
 Kearney v. McComb, 231, 570. 
 
 Kearney v. Post, 139. 
 
 Kearsing v. Kilian, 578. 
 
 Keating v. Condon, 141. 
 
 Keating Implement Co. & Machine Co. v. 
 
 Power Co., 9. 
 Keats v. Hugo, 443. 
 Keay v. Goodwin, 186, 193. 
 Kebabian v. Shinkle, 255. 
 Keech v. Sanford, 368. 
 Keedle v. Flack, 253. % 
 Keeler v. Eastman, 62. 
 Keeler v. Tatnell, 97. 
 Keeler v. Wood, 608. 
 Keely v. Moore, 556. 
 Keho v. Auditor General, 532. 
 Keisel v. Earnest, 191. 
 Keisewetter v. Kress, 126. 
 Keith v. Carver, 194. 
 Keith v. Homer, 217, 219. 
 Keith v. Scales, 36, 45. 
 Keith v. Trapier, 90. 
 Keith v. Twentieth Cent. Club, 432. 
 Keith v. Wolf, 218. 
 Kell v. Charmer, 631. 
 Kella v. Miles, 154. 
 Kellar v. Lamb, 80. 
 Kellar v. Sinton, 236. 
 Keller v. Ashford, 253, 622. 
 Keller v. Micheal, 85. 
 Kelley v. Greenleaf, 368. 
 Kelley v. Jenness, 367. 
 Kelley v. Thompson, 229. 
 Kellngg r . Ames, 257, 258. 
 Kellogg v. Frazier, 236. 
 Kellogg v. Malin. 615, 617. 
 Kellogg v. Mullen, 496. 
 Kellogg v. Platt, 619. 
 Kellogg v. Rockwell, 246. 
 Kelsey v. Hardy, 478. 
 Kelso v. Fleming, 253. 
 Kelsoy v. Farmers & Traders Bank, 278, 
 
 282. 
 
 Kelly v. Baker, 123. 
 Kelly v. Burnham, 250. 
 Kelly v. Connell, 126. 
 Kelly v. Hill, 233. 
 Kelly v. Kelly, 640. 
 Kelly v. Longshore, 274. 
 Kelley v. McBlain, 611. 
 Kelly r. McGuire, 478. 
 Kelly v. Miller, 634. 
 Kelly v. Mills, 583. 
 Kelly v. Palmer, 504. 
 Kelly r. Payne, 210. 
 Kelly t: Thomnson. 229, 231. 
 Kelly v. Waite, 163. 
 Kelly v. Watson, 160. 
 
 Kelly v. Weston, 160. 
 
 Kemerer v. Bloom, 257. 
 
 Kemp v. Bradford, 301. 
 
 Kempner v. Comer, 272. 
 
 Kempton v, Veker, 149. 
 
 Kemson v. Ashbee, 556. 
 
 Kenady v. Edwards, 375. 
 
 Kendall v. Garland, 149. 
 
 Kendall v. Lawrence, 556. 
 
 Kendall v. Treadwell, 272, 275. 
 
 Kendrick v. Judas, 140. 
 
 Kendrick v. Latham, 504. 
 
 Kenicott v. Supervisors, 253. 
 
 Kenin v. Browning, 163. 
 
 Kennard v. Kennard, 301. 
 
 Kennebec Purchase v. Springer, 495. 
 
 Kennebec Purchase v. Tiffany, 595. 
 
 Kennedy v. Dickey, 384. 
 
 Kennedy v. Hoy, 399. 
 
 Kennedy v. Johnstone, 118. 
 
 Kennedy v. Kennedy, 393. 
 
 Kennedy v. Maness, 546, 592. 
 
 Kennedy v. Marrast, 556. 
 
 Kennedy v. McCartney, 519. 
 
 Kennedy v. Mill, 118. 
 
 Kennedy v. Nat. Bank, 126. 
 
 Kennedy v. Nedrow, 117, 118. 
 
 Kennedy v. Northrup, 582. 
 
 Kennedy v. Nunan, 366, 370. 
 
 Kennedy v. Price, 367. 
 
 Kennedy v. Taylof, 367. 
 
 Kennedy v. Burgess, 265. 
 
 Kenniston v. Leighton, 329. 
 
 Kenny v. Barnes, 161. 
 
 Kenny v. Udell, 70. 
 
 Kenoye v. Brown, 178. 
 
 Kenrick v. Latham, 494. 
 
 Kensington v. Gerhart, 54. 
 
 Kent v. Gerhard, 217, 218. 
 
 Kent v. Wait, 606. 
 
 Kent v. Welch, 623. 
 
 Kent v. Williams, 259. 
 
 Keppell v. Bailey, 147. 
 
 Kercheval v. Triplett, 512. 
 
 Kerley v. Kerley, 121. 
 
 Kern v. Soxman, 634. 
 
 Kernochan v. Bowery Ins. Co., 248. 
 
 Kerns v. Swope, 581. 
 
 Kerr v. Bell, 556. 
 
 Kerr v. Freeman, 547. 
 
 Kerr v. Gilmore, 233. 
 
 Kerr v. Hill, 231. 
 
 Kerr v. Hitt, 495. 
 
 Kerr v. Moon, 629. 
 
 Kerr v. Russell, 97. 
 
 Kerrains v. People, 170. 
 
 Kerrigan v. Hart, 645. 
 
 Kersenbrock v. Muff, 269. 
 
 Kershaw v. Thompson, 275. 
 
 Kessler v. McConachy, 154. 
 
 Kesterson v. Bailey, 300. 
 
 Ketchin v. Patrick, 199. 
 
 Ketchin v. Rion, 411. 
 
 Ketchum v. Barber, 562. 
 
 Key v. Gamble, 385, 387. 
 
 Keyport Steamboat Co. v. Farmers Trans.^ 
 
 599. 
 
 Keyser v. Covell, 447. 
 Keyser v. Mitchell, 370. 
 Keyser v. School District, 9. 
 Keyes v. Scanlan, 127. 
 
 Ixxvii
 
 TABLK OF CASES CITED. 
 
 [References arc to Sections.] 
 
 Ki>by f. Chitwood. 524, 528. 
 Kiiuvr t. lluver, 298. 
 K...-I f. Dennison, 62. 
 KiUd t. Tceple. 238. 
 Kicrtcr t. Imhof, 449. 
 Kier t . Peterson, 5, 64. 
 Kighly t. Bulkly, 14. 
 Ki.uic t. Myric, 55. 
 Ki.ini.ili f. Root's Ailmr., 90. 
 Kile t. Fleming. 494. 
 Kile f. Gielmcr, US. 
 KH..OUI f. Crawford. 195. 
 Kntfore f. Kilgore, 301. 
 KiiKorc f. Kirkland, 504. 
 Killburn f. Robins, 280. 
 Killoren f. Murtaugh, 157. 
 Kilpatrick r. Kilpatrick. 217. 
 Kimball f. Blaisdcll, 512. 
 Kiniball f. Cross, 159. 
 Kimball t. Kimball, 92. 
 Kimball f. Lcwiston, 265. 
 Kimball r. Lockwood, 157, 245. 
 Kinball r. Lohmas, 494. 
 Kimball f. Rogers, 606. 
 Kmibail r. Rowland, 150, 169. 
 Kimball r. Schoff, 514. 
 Kimball r. Stout, 642. 
 Kimball r. Temple, 619. 
 Kimball v. Withington, 608. 
 Kunc r. Brooks, 571. 
 Kimmel f. \Villard, 255. 
 Kimmi-ll f. Caruthers, 126. 
 Kimpton v. Walker, 143, 145. 
 Kincaid r. Brittain, 614. 
 Kircaid v. McGowan, 608. 
 Kindley f. Spraker, 126. 
 Kindro r. Johnston, 640. 
 King r. Aldborough, 139. 
 King r. Anderson, 149. 
 King r. Bell, 376. 
 King f. Bronson, 278. 
 King r. Creekmore, 161. 
 King f. Donnelly, 377. 
 King f. Duntr, 278. 
 King r. Foscue, 58. 
 King i: Gilson, 554, 621. 
 King r. Goetz, 125, 126. 
 King f. Grant, 204, 640. 
 King f. Horndon, 468. 
 King r. Hunt, 493. 
 King r. Ins. Co., 246. 
 King r. Kilbride, 622. 
 King r. Kilbridge, 622. 
 King r. King, 117, 236. 
 King r. Lawson, 162. 
 King r. Little, 229. 
 King r. Longnor, 569. 
 King f. McCarley, 123. 
 King r. Murphy, 435. 
 King t. Mut. Ins. Co., 248. 
 King 7'. Phillips, 186. 
 King r. Portis, 583, 584. 
 King r. Quincy Bank, 217. 
 King r. Raab, 159. 
 King v. Reed, 197. 
 King v. Scroggin, 299. 
 King v. State Ins. Co., 248. 
 King f. Stetson, 94. 
 King v. St. Pat. Cathedral, 608. 
 King v. Frick. 801. 
 
 Ixxviii 
 
 King T. Wells, 608. 
 
 King v. Whittle, 59. 
 
 King t 1 . Wilson, 139. 
 
 King f. Yarborough, 489. 
 
 Kingdons f. Bridges, 367. 
 
 Kingdon v. Nottle, 614. 
 
 Kingland v. Clark, 152. 
 
 Kingman v. Sinclair, 264. 
 
 Kingsbury v. Buckner, 255. 
 
 Kingsbury v. Burnside, 576, 598. 
 
 Kingsbury v. Collins, 104. 
 
 Kinsley v., Ames, 277. 
 
 Kingsley v. llolbrook, 59, 573. 
 
 Kingsmill v. MillarJ, 157. 
 
 Kimmarle v. Houston, etc., R. R. Co. 
 
 574. 
 
 Kinnear v. Lowell, 257. 
 Kinna v. Smith, 226, 240. 
 Kinnan v. Card, 301. 
 Kinnear v. Lowell, 284. 
 Kinnebren v. Kinnebren, 565. 
 Kinsley v. Abbott, 176. 
 Kinsley v. Scott, 275. 
 Kintner v. Jones. 373, 380. 
 Kintz v. Friday,* 480. 
 Kip v. Bank of New York, 370. 
 Kip v. Deniston, 380. 
 Kiplinger v. Meeks, 160. 
 Kirby v. Giddings, 126. 
 Kirchner v. Miller, 510. 
 Kirschner v. The \\ . & A. R. Co., 429. 
 Kirk *. Dean, 85, 97. 
 Kirk v. King, 516. 
 Kirk v. Mattier, 4, 8. 
 Kirkendall v. Mitchell, 614. 
 Kirkham v. Sharp, 438. 
 Kirkham v. Wheeler Co., 515. 
 Kirkman v. Wadsworth, 411. 
 Kirkpatrick v. Chestnut, 463. 
 Kirkpatrick v. Kirkpatrick, 98, 294. 
 Kirkpatrick v. Peshine, 205, 626. 
 Kirksey v. Cole, 53. 
 Kirkwood v. Smith, 579. 
 Kisler v. Kisler, 368. 
 Kisler v. State, 585. 
 Kisterbock v. Lanning, 13. 
 Kistland v. Pounsett, 166. 
 Kitchell v. Burgwin, 123. 
 Kitchen v. Bedford, 373. 
 Kitchen Bros. v. Philbin, 154. 
 Kitchen v. Lee, 556. 
 Kittle v. Van Dyck, 94, 274. 
 Kittler v. Studebaker, 249, 251. 
 Kittredge v. Woods, 59. 
 Klappner v. Laverty, 322. 
 Klee v. Trumbull, 213. 
 Kleppner v. Laverty, 323, 397. 
 Kleven v. Gunderson, 603. 
 Kluick f. Keckeley, 87, 94. 
 Kline v. Beebe, 80. 
 Kline v. Jacobs, 191. 
 Kline v. McLean, 134. 
 Kline v. Ragland, 514. 
 Klock v. Walter, 233. 
 Kloss v. Wylezalek, 127, 197. 
 Knarr v. Conaway, 265. 
 Knecken v. Voltz, 427, 435. 
 Knell v. Green St. BIdg. Assn., 260. 
 Knepper v. Kurtz, 619. 
 Knevals v. Prince, 193.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.} 
 
 Knight v. Bell, 72. 
 
 Knight v. Clements, 554. 
 
 Knight 7\ Denmore, 518. 
 
 Knight v. Dyer, 229. 
 
 Knight v. Elliott, 596. 
 
 Knight v. Houghtaling, 270. 
 
 Knight v. Knight, 173. 
 
 Knight v. Mahoney, 204. 
 
 Knight v. Mains, 92. 
 
 Knight i'. Mosley, 64. 
 
 Knight v. Paxton, 305. 
 
 Knoderer ?. Merriman, 393. 
 
 Knotson v. Vidders, 509. 
 
 Knotts v. Hydrick, 4. 
 
 Know v. Hinson, 494. 
 
 Knowles v. Brown, 498. 
 
 Knowles v. Nicholls, 426. 
 
 Knowles v. Toothaker, 510. 
 
 Knowlton v. Walker, 247. 
 
 Knox v. Armstead, 279. 
 
 Knox v. Easton, 243, 244. 
 
 Knox v. Hook, 498. 
 
 Kock v. Briggs, 282. 
 
 Koehler v. Black River, etc., Co., 572. 
 
 Koehler v. Klins, 197. 
 
 Koehler v. Schneider, 156. 
 
 Koely v. Phelps, 160. . 
 
 Koenigheim v. Miles, 608. 
 
 Koepke r. Winterfield, 615. 
 
 Kohlheim v. Harrison, 247. 
 
 Kolasky v. Mickles, 147. 
 
 Kortright v. Cady, 254. 
 
 Koston v. Storez, 583. 
 
 Konvalinka v. Geilbel, 301. 
 
 Kradler v. Sharp, 61C. 
 
 Kramer v. Cook, 137. 
 
 Kreamer v. Fleming, 85. 
 
 Kreamer r. Voneida, 536, 
 
 Kreset v. Meyer, 173. 
 
 Kripp v. Curtis, 439. 
 
 Kron v. Kron, 34. 
 
 Krueger v. Ferry, 284. 
 
 Kruger v. Le Blanc, 122. 
 
 Kruse v. Hollzer, 590. 
 
 Kuhn 7'. Newman, 361. 
 
 Kuhn v. Rumpp, 233. 
 
 Kunkle v. Wolfsberger, 229, 245. 
 
 Kuntz v. Marenholz, 134, 135. 
 
 Kursheedt v. McCune, 250. 
 
 Kursheedt -'. Union Dime Sav. Inst., 273. 
 
 Kurst v. Paton, 301. 
 
 Kurz v. Brusch, 123. 
 
 Kutter v. Smith, 18, 133. 
 
 Kutz v. McCune, 617. 
 
 Kyle v. Kavanagh, 547. 
 
 Kyles v. Tail's Admr., 217. 
 
 Laberee v. Carleton, 202, 565. 
 Lacey v. Floyd. 321, 401. 
 Lacey v. Marnan, 625. 
 Lackland v. Nevins, 307. 
 Lackman v. Wood, 515. 
 Lacon v. Allen, 213. 
 Lacy v. Hale, 368. 
 Ladan v. R. R. Co., 250, 268. 
 Ladd v. City of Boston, 434. 
 I.ndd v. Ladd, 407. 
 Lafarge v. Mansfield, 181. 
 
 Lafavour v. Homan, 498. 
 
 Lafayette v. Blanc, 521. 
 
 Lafferty r. Whitesides, 365. 
 
 La Frombois v. Jackson, 495. 
 
 Lagow 7-. Badollet, 217. 
 
 La Grange Mills v. Kener, 473. 
 
 Laidley v. Aikin, 260. 
 
 Lake v. Brown, 282. 
 
 Lake v. Craddock, 176. 
 
 Lake v. Doud, 228. 
 
 Lake v. Gray, 574. 
 
 Lake v. Nolan, 92, 96. 
 
 Lake v. Thomas, 247. 
 
 [.akin v. Lakin, 98. 
 
 Larkin v. Sierra Buttes Gold Min. Co., 
 
 368. 
 
 Lalanne v. Payne, 242. 
 Lamar v. Minter, 500. 
 Lamar v. Scott, 85. 
 Lamb v. Danforth, 178, 199. 
 Lamb ^'. Girtman, 633. 
 Lamb v. Lamb, 574, 637. 
 Lamb r. Montague, 255. 
 Lambert v. Estes, 625. 
 Lambert v. Hyers, 274. 
 Lamberton v. Van Voorhis, 217. 
 Lambden v. Sharp, 572. 
 Lamdert v. Blumenthal, 195. 
 Lampert v. Haydel, 370. 
 Lampleigh ^'. Lampleigh, 329. 
 Lampman v. Miiks, 432. 
 Lamson v. Clarkson, 157. 
 Lamson v. Drake, 258. 
 Lancaster Co. Bank v. Stauffer, 82. 
 Lancaster v. Dolan, 347, 348. 
 Lance v. Butler, 183. 
 Land v. Lane, 242. 
 Land v. May, 234. 
 Landa 7'. Obert, 257. 
 Landars v. People, 533. 
 Landers 7'. Bolton, 574. 
 Landrum 7'. Union Bk. of Mo., 278. 
 Landt v. Schneider, 143, 146. 
 Lane v. Davis, 251. 
 Lane v. Debenham, 378. 
 Lane v. Dighton, 367. 
 Lane v. Dorman, 524. 
 Lane v. Duchac, 585. 
 Lane v. Hitchcock, 265. 
 Lane v. King, 59, 245. 
 Lane v. Ludlow, 220. 
 Lane v. Richardson, 126. 
 Lane v. Shears, 220. 
 Lane v. Tainter, 574. 
 Lane v. Thompson, 591. 
 Lane y. Tyler, 184. 
 Lanfair v. Lanfair, 230. 
 Lang v. Waring, 184, 185. 
 Langdon v. Buchanan, 13. 
 Langdon v. Paul, 265. 
 Langdon v. Poor, 532. 
 Langdon v. Strong, 296, 528. 
 Langes 7'. Murservey, 233. 
 Langford v. Eyre, 411. 
 Langford v. Selmes, 459. 
 Langley v. Ross, 148. 
 Langley v. Trust Co., 642. 
 Langmaid v. Hurd, 640. 
 Langston v. Love, 250. 
 Langston 7'. Maxey, 127. 
 
 Ixxix
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.'} 
 
 Langton v. Horton, 583. 
 
 Lannay r. Wilson, 274. 
 
 banning r. Gay, 652. 
 
 Lanov f. Athol, 25)0. 
 
 Lansing Engine Works r. Walker. 10. 
 
 Lansing t. Goclet. 272, 276. 
 
 Uinsing f. Stone, 66. 
 
 1... using T. Wiswall. 432. 
 
 Lapeyre f. Paul, 498. 
 
 Lapslcy f. Lapsley. 397. 
 
 Laramore f. Munish, 504. 
 
 Large f. Van Doren. 236, 257. 
 
 Larkin f. Misland, 144. 
 
 Larmour f. Rich, 301. 
 
 Larned f. Clark, 163. 
 
 Larrcbee r. Lumbcrt, 248, 251. 
 
 Larrowe r. Beam, 105. 
 
 Lasala r. Holbrook, 448. 
 
 Laster r. Blackwell, 320. 
 
 Latham r. Blakely, 13. 
 
 Latham r. Henderson, 367. 
 
 Latham r. Staples. 219. 
 
 Lathrop r. At wood, 616. 
 
 Lathrop f. Foster, 109. 
 
 Lathrop r. Standard Oil Co., 172. 
 
 Latnam f. Morgan, 623. 
 
 Laughlin v. Kieper, 572. 
 
 l.;iubran f. Ross, 18. 
 
 Laughton r. Atkins, 645. 
 
 Laurengel r. De Boom, 374. 
 
 Lavender r. Abbott, 217, 218. 
 
 Lavenson r. Standard Soap Co., 13. 
 
 Lawrence r. Brown, 85. 
 
 Lawrence v. Burrell, 153. 
 
 Lawrence v. Cookc, 373. 
 
 Lawrence v. Cornell, 283. 
 
 Lawrence r. Farmers' Loan, etc., Co., 
 
 278. 
 
 Lawrence r. French, 153. 
 Lawrence r. Hebbard, 296. 
 Lawrence r. Knap, 251. 
 Lawrence v. Lawrence, 45, 497. 
 Lawrence r. Senter, 624. 
 Lawrence v. Stratton, 250, 518. 
 Lawrence v. Ward, 234. 
 Lawson v. Morrison, 649. 
 Lawton v. Lawton, 16. 
 Lay r. Neville, 596. 
 Layman v. Throp, 171. 
 Layson r. Grange, 123. 
 Layton r. Butler, 113. 
 Lea v. Polk Co. Copper Co., 494, 586. 
 Lea r. Stone, 262. 
 Lea v. Woods, 89. 
 Leach v. Beattie, 584. 
 Leach v. Leach, 368. 
 Leader v. Homewood, 18. 
 Leak r. Richmond Co., 402. 
 Leak v. Robinson, 399. 
 Leake r. King, 127. 
 Leake r. Watson, 321. 
 Lear t>. Leggett, 140. 
 Learned v. Cutter, 85, 558. 
 Learned v. Foster, 279. 
 Learned v. Ogden, 68, 320. 
 learned v. Reiley, 574. 
 T eather v. Gray, 45, 321. 
 I eavett v. Leavett, 541. 
 T -nvitt r. Beirne, 870. 
 Lcavitt v. Fletcher, 14. 
 
 Ixxx 
 
 Leavitt . Lampray, 85. 
 Leavitt v. Pell, 411. 
 Leavitt v. Pratt, 258. 
 Leaycraft v. Simmons, 633. 
 Lebanon Min. Co. r. Rogers, 494. 
 Le Barren T. Babcock, 191. 
 Lecompte r. Wash, 98. 
 Le Comte v. Carson, 510. 
 Lecoter v. De Corse, 586. 
 Ledger v. Doyle, 585. 
 Lcdoux v. Black, 521. 
 I.edyard v. Butler, 239. 
 Ledyard v. Ten Eyck, 598. 
 Lee v. Baumgardner, 5. 
 Lee r. Brouder, 367. 
 Lte v. Campbell, 121. 
 
 v. Clark, 251, 204. 
 
 v. Dean, 625. 
 
 & Hester v. Hughes, 125. 
 
 v. Miller, 123. 
 
 v. Netherton, 158. 
 
 v. Ogden, 586. 
 
 v. Pembroke Iron Co., 444. 
 
 Le v. Tower, 399. 
 
 Lc v. Tucker, 609. 
 
 Lee v. Wysong, 195. 
 
 Leech v. Karthans, 235. 
 
 Leeds v. Cameron, 236. 
 
 Leeds v. Gifford, 262. 
 
 '.reds v. Wakefield, 410, 414. 
 
 Keeper v. Baker, 495. 
 
 I .ucper v. Neagle, 31. 
 
 I. ccs r. Moslev, 322. 
 
 1 ret v. Armbruster, 239, 253. 
 
 L-et v. McMaster, 278. 
 
 ' e Fevre f. Amonson. 522. 
 
 l.efevre r. Murdock, 558. 
 
 Leffler v. Armstrong, 282. 
 
 T.rfford v. Garnell, 272. 
 
 l.egard v. Hodges, 582. 
 
 I.cgg v. Legg, 198. 
 
 Leggett v. Bullock, 260, 585. 
 
 Leggett v. Firth, 298. 
 
 Leggett v. Perkins, 73, 349. 
 
 Leggett v. Steele, 105. 
 
 Lc^win v. McRee, 301. 
 
 Lehigh Valley Co. v. Traction Co., 462. 
 
 I.chigh Vally R/ Co. r. McFarlan, 429. 
 
 Lehman v. Dreyfus, 139. 
 
 Lehmann v. Rothbarth, 368. 
 
 Lehndorf v. Cope, 39, 45. 
 
 Leigh v. Taylor, 11. 
 
 Leighton v. Leighton, 68. 
 
 Leighton v. Preston, 244. 
 
 Leishman v. White, 154. 
 
 Leiter v. Pike, 134. 
 
 Leith v. Irvine, 234. 
 
 Leland t'. Loring, 276. 
 
 Leman v. Best, 18. 
 
 Leman v. Whitley, 367. 
 
 Lemmon v. Hartrook, 510. 
 
 Lemon v. Graham, 30. 
 
 T.enfers v. Henke, 64, 105. 
 
 Lennig v. Ocean City Assn., 433, 601. 
 
 T.enoir T. Valley River Min. Co., 186. 
 
 T.rnz v. Prescott, 301. 
 
 Leonard v. Armstrong, 146. 
 
 Leonard v. Binford. 247, 272. 
 
 Leonard v. Hart, 498. 
 
 Leonard v. Leonard, 105, 556.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Leonard v. Williard, 10. 
 Leonard's Lessee v. Diamond, 382. 
 Lepps v. Lee, 299, 301. 
 Leron v. Wilraarth, 566. 
 Lesley v. Randolph, 164. 
 Leslie v. Marshall, 297, 387. 
 Lester v. Citizens Sav. Bank, 27 
 Lester v. Garland, 370. 
 Lethbridge v. Myttors, 616. 
 Lethienllier v. Tracy, 308. 
 Lethienllier v. Sledge, 298. 
 Levengood v. Hopple, 204. 
 Leverett v. Bullard, 594. 
 Levering v. Langley, 156. 
 Levins v. Rovezno, 121. 
 Levison v. Abrahams, 127. 
 Levy v. Brush, 368. 
 Levy v. Levy, 641. 
 Lewis v. Baird 377, 512. 
 Lewis v. Earnhardt, 45. 
 Lewis v. Beattie, 601. 
 Lewis v. Brown, 510. 
 Lewis v. Campbell, 625. . 
 Lewis r. Caperton's Exr., 217. 
 Lewis r. Coffee Co., 599. 
 Lewis v. Coxe, 85. 
 Lewis r. Ely, 626. 
 Lewis v. Hawkins, 498. 
 Lewis v. James, 116. 
 Lewis v. Jones, 16. 
 Lewis v. Kirk, 264. 
 Lewis i'. Lewis, 202, 633. 
 Lewjs v. Manerman, 127. 
 Lewis v. Meserve, 92. 
 Lewis v. Paign, 154. 
 Lewis r. Payne, 554. 
 Lewis r. Pitman, 298, 408. 
 Lewis v. Ridge, 147. 
 Lewis v. Waters, 308. 
 Libbey v. Davis, 121. 
 
 Ljbbey v. Tufts, 285. 
 
 Libby v. Hutchinson, 616. 
 
 Licata v. De Corte, 582. 
 
 Liddon v. Hodnett, 497. 
 
 Lieman v. Summerfield, 408. 
 
 Life Ins. Co. v. Patterson, 432. 
 
 Life Ins. Co. v. Smith, 240. 
 
 Liggins v. Inge, 435, 444. 
 
 Lightcap v. Bradley, 240. 
 
 Lightney v. Mooney, 582, 585. 
 
 Lillard v. Rucker, 580, 583. 
 
 Liilibridge v. Coal Co., 4. 
 
 Lily v. Palmer, 284. 
 
 Limerick v. Voorhis, 247. 
 
 Lincoln v. Aldrich, 401, 471. 
 
 Lincoln v. Emerson, 247. 
 
 Lincoln v. Purcell, 505. 
 
 Lind v. Hook, 562. 
 
 Linden v. Hepburn, 139. 
 
 Linden Oil Co. v. Jennings, 146. 
 
 Lindley v. Crornbie, 564. 
 
 Lindley v. Dakin, 615. 
 
 Lindley v. Martindale, 586. 
 
 Lindsay v. Bates, 219. 
 
 Lindsay v. Lindsay, 201, 651. 
 
 Lindsey v. Leighton, 146. 
 
 Lindsey v. Miller, 505, 521. 
 
 Lindsey v. Veasy, 614. 
 
 Line r. Stevenson, 623. 
 
 Lineberger v. Tidwell, 574. 
 
 Lingan v. Carroll, 642. 
 
 Linn v. Downing, 420. 
 
 Linsee v. Mixer, 210. 
 
 Linthieum v. Coan, 489. 
 
 Linton v. Moorhead, 558, 570. 
 
 Linville v. Golaing, 548. 
 
 Linville v. Savage, 218. 
 
 Linwine v. Burtiss, 397. 
 
 Lippett v. Kelly, 590, 605. 
 
 Lisburne v. Davies, 157. 
 
 Lisk v. Smith, 85. 
 
 Liskey v. Snyder, 235. 
 
 List v. Rodney, 44. 
 
 Lister v. Turner, 216. 
 
 Litchfield v. Ferguson, 317, 598. 
 
 Lithy v. Wolstenholme, 376. 
 
 Little v. Baker, 123. 
 
 Littel et al. v. Lake, 482. 
 
 Little v. Gibson, 577. 
 
 Little v. Giles, 31, 204. 
 
 Little v. Herndon, 532. 
 
 Little v. Macadaras, 146. 
 
 Little v. Mequirer, 494. 
 
 Little v. Pearson, 166. 
 
 Littleton v. Richardson, 624. 
 
 Littleworth v. Davis, 233. 
 
 Lively v. Rice, 617, 622. 
 
 Livingston i>. Livingston, 367. 
 
 Livingston v. Moingona Coal Co., 448. 
 
 Livingstone v. Murphy, 367. 
 
 Livingston v. Peru Iron Co., 569. 
 
 Livingston v. Potts, 156. 
 
 Livingstone v. Reynolds, 64, 68. 
 
 Livingston v. Tanner, 170. 
 
 Livingstone v. Ten Broeck, 426 
 
 Livingston v. Thomkins, 209. 
 
 Llwellyn v. Jersey, 594. 
 
 Lloyd v. Kehr, 86. 
 
 Lloyd v. Cozens, 139, 168. 
 
 Lloyd v. Gordon, 186, 193. 
 
 Lloyd v. Lloyd, 122, 366. 
 
 Lloyd v. Mitchell, 204. 
 
 Lloyd v. Gates, 571. 
 
 Lloyd v. Passingham, 273. 
 
 Lloyd v. Reed, 367. 
 
 Lloyd v. Spillett, 329. 
 
 Lloyd's Lessees v. Taylor, 558. 
 
 Lobdell v. Hayes, 87. 
 
 Lobdell v. Ray, 253. 
 
 Lochenour v. Lochenour, 367. 
 
 Lock v. Fulford, 284. 
 
 Locke v. Locke, 640. 
 
 Locke v. Palmer, 235. 
 
 Locke v. Rowell, 121. 
 
 Locke v. Smith, 556. 
 
 Locke v. Whitney, 504. 
 
 Lockhardt v. Hardy, 288. 
 
 Lockmafl v. Hobbs. 640. 
 
 Lockwood v. Benedict, 273. 
 
 Lockwood v. Jessup, 471. 
 
 Lockwood v. Lockwood, 167. 
 
 Lodge v, Barnett, 603. 
 
 Lodge v. Tyseley, 583. 
 
 Lodge v. White, 143. 
 
 Loe v. Fonnereau, 387. 
 
 Lofsky v. Manjer, 245. 
 
 Lofton v. Murchison, 638. 
 
 Lofton v. Witboard, 307. 
 
 Logan v. Anderson, 156. 
 
 Logan v. Bean's Admr., 476. 
 
 Ixxxi
 
 TABLE OP CASES CITED. 
 
 [References arc to Sections.] 
 
 Logan r. Fitxgerald, 497. 
 
 Logan f. Hcrron, 104. 
 
 Logan f. Yanarsdall, 550. 
 
 Logan f. Walker, 307. 
 
 Logue :. Bateman, 40(1. 
 
 Lohmeycr f. Durbiu. 276. 
 
 Lomax r. Bird, 255. 
 
 Lombard f. Willis, 301. 
 
 l.oiiirl f. Wilson, 615. 
 
 London f. Uynum, 583. 
 
 London t. VVarfield, 08. 
 
 Lone Acre Oil Co. f. Swayn, 64. 
 
 Lone f. Bruce, 143. 
 
 Long i'. Cokcrn. 1">. 
 
 Long r. Fitssimmons, 66. 
 
 Long r. Hewitt, 417. 
 
 Long Island Loan Co. r. Long Island R. 
 
 R. Co., 234. 
 
 Long r. Long, 76, 480. 
 Long r. Mast, 498. 
 Long f. McDow, 186. 
 Long f. Mold, 617. 
 Long i: Paul, 30, 204. 
 Long t>. Ramsey, 573. 
 Long f. Watkinson, 642. 
 Long v. Walker, 125. 
 Long v. White, 72. 
 Longendyke :. Anderson, 428. 
 Longfellow v. Longfellow, 157. 
 Longhran r. Ross, 619. 
 Longley v. Longley, 366. 
 Longlois r. People, 533. 
 I-ongworth v. Butler, 277. 
 Loomer r. Loomer, 298. 
 Loomer f. Wheelwright, 242. 
 Loomis f. Bedel, 622. 
 Loomis r. O'Neal, 160. 
 Loomis v. Pingree, 576. 
 Loomis v. Stuyvesant, 273. 
 l.oosemoore v. Tiverton, 3. 
 Lonquet v. Scawen, 224. 
 Lord v. Bourne, 473. 
 Lord ?'. Morris, 236. 
 Loreng v. Carnes, 299. 
 Loring v. Cooke, 262. 
 Luring v. Eliott, 305. 
 Loring v. Groomer, 123. 
 Loring v. Marsh, 641. 
 Lorick r. McCreery, 30. 
 Loring v. Palmer, 374. 
 Lormore v. Campbell, 566. 
 Lorrimer v. Lewis, 520. 
 Losey v. Simpson, 582. 
 L. T. L. & T. Co. v. L. T. & N. R. Co., 
 
 272. 
 
 Loubat v. Nourse, 184. 
 Loud v. Brigham, 577. 
 Loud r. Darling, 559. 
 Loud v. Lane, 258. 
 
 Louisville & N. R. Co. v. Philyan, 504. 
 Louisville & N. R. Co. v. State, 2, 454. 
 Louisville Bkg Co. 7-. Leonard, 126, 236. 
 Louisville R. R. v. Covington, 435. 
 Lorn-all v. Gridley, 503. 
 Love v. Blaun, 195, 299. 
 Love v. Buchanan, 640. 
 Love v. Turner, 497. 
 Love r. White, 597. 
 Lovejoy v. Richardson, 569. 
 Lovell f. Leland, 276. 
 
 Ixxxii 
 
 Loveman v. Taylor, 376. 
 
 Levering v. Elliott, 306. 
 
 Lovering v. Leering, 143. 
 
 Low v. Henry, 231. 
 
 Low v. Pew, 238. 
 
 Low v. Purdy, 278. 
 
 Lowden v. Morris, 529. 
 
 Leudermilk v. Corpening, 125. 
 
 Lowe v. Emerson, 157. 
 
 Lowe v. Maccubben, 479. 
 
 Lowell v. Middlesex, 220. 
 
 Lowery v. Reef, 55. 
 
 Lowndes v. Chisholm, 269. 
 
 Lowrie v. Ryland, 31. 
 
 Lowther v. Carlton, 582. 
 
 Loy v. Kennedy, 633. 
 
 Loyd v. Ostes, 673. 
 
 Lozear v. Porter, 85. 
 
 Lozier v. N. Y. Cent. R. R., 601. 
 
 Luane v. Wilson, 611. 
 
 Lubbock v. McCann, 123. 
 
 Lucas v. Coulter, 146. 
 
 Lucas v. Darren, 213. 
 
 Lucas v. James, 631. 
 
 Lucas v. Sawyer, 85, 110. 
 
 Lucas v. Whitacre, 85. 
 
 Luce v. Carley, 597. 
 
 Luce v. Stubbs, 109. 
 
 Luckey v. Gannon, 248. 
 
 Luddington v. Kime, 310, 392. 
 
 Ludington v. Garloch, 168. 
 
 Ludington v. Low, 253. 
 
 Ludlow v. N. Y. & Harlem R. R. Co., 
 
 202. 
 
 Luke v. Marshall, 642. 
 Lund v. Lund, 222, 231. 
 Lund v. Parker, 497. 
 Lund v. Woods, 85. 
 Lunsford v. La Motte Lead Co., 572. 
 Lunsford v. Turner, 157. 
 Lunt v. Holland, 597. 
 Luntz v. Greve, 75. 
 Luper v. Wertz, 633. 
 Lupton v. Lupton, 288. 
 Luquire v. Lee, 382. 
 Lush v. Druse, 592. 
 Lutes v. Reed, 578. 
 Luther ?'. Winnisimett Co., 445. 
 Lux v. Hoff, 181. 
 Luxford v. Cheeke, 308, 309. 
 Lyerly v. Wheeler, 576. 
 Lyle v. Burke, 373, 377. 
 Lyle v. Ducomb, 263. 
 Lyle v. Richards, 20, 42. 
 Lyles v. Digge, 321. 
 Lyles v. Lyles, 191. 
 Lym v. Sanford, 273. 
 Lyman v. Arnold, 590. 
 Lyman v. Lyman, 285. 
 Lynch v. Allen, 5, 597. 
 Lynch v. Clements, 374. 
 Lynch ^>. Doran, 126. 
 Lynch v. Herrig, 367. 
 Lynch v. Jackson, 231. 
 Lynch v. Livingstone, 574. 
 Lynch v. Lynch, 197. 
 Lynde v. Hough, 139. 
 Lynde v. McGregor, 75. 
 Lynde v. Rowe, 15, 59. 
 Lyon v. Baker, 640.
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.] 
 
 Lyon v. Banerman, 146, 161. 
 Lyon f. Kain, 471. 
 Lyon v. Mcllvaine, 242. 
 Lyon v. Reed, 156. 
 Lyon V. Register, 195. 
 Lycrn v. Smith, 633. 
 Lyons v. Van Riper, 575. 
 Lyster v. Dolland, 239. 
 Lythe v. Beveridge, 631. 
 Lytle v. Arkansas, 522. 
 
 M 
 
 Macavenny v. Ralph, 124. 
 
 Mack v. Bensley, 447, 590. 
 
 Mack v. Patchin, 144, 625. 
 
 Mackentile v. Savoy, 594. 
 
 Mackenzie v. Childers, 433. 
 
 Mackey v. Collins, 619. 
 
 Macklot v. Uubrenil, 492. 
 
 Macknet v. Macknet, 296. 
 
 Mackreth v. Symmons, 217, 220. 
 
 Mackubin v. Whetcroft, 148. 
 
 Macomb v. Prentiss, 253. 
 
 Macombe v. Miller, 393. 
 
 Macomber v. Cambridge Ins. Co., 248. 
 
 Macotnber v. Godfrey, 444. 
 
 Macy r. R. R. Co., 68. 
 
 Macy v. Williams, 373, 374. 
 
 Madden v. Barnes, 217, 218. 
 
 Madigan v. McCarthy, 16, 300. 
 
 Madison Am. Church v. Oliver St. 
 
 Church, 492. 
 
 Madison City v. Hildreth, 596. 
 Madison v. Madison, 4. 
 Magaw v. Field, 642. 
 Magaw v. Lambert, 151. 
 Magee v. Magee, 491, 492. 
 Magee v. Mellon, 100. 
 Maggort v. Hansbarger, 151. 
 Magill v. Ilinsdale, 245. 
 Magruder r. Eggleston, 272. 
 Magruder r. OfTut, 273. 
 Magruder v. Peter, 217. 
 Magnasson v. Williams, 278. 
 Magnusson ?'. Johnson, 231. 
 Magoon v. Harris, 590. 
 Maguire v. Bissell, 592. 
 Maguire v. Sturtevant, 603. 
 Magwood 7 1 . Johnson, 348. 
 Mahagan v. Mead, 285. 
 Mahan i'. Brown, 443. 
 Mahoney v. Middleton, 584. 
 Mahnken Co. v. Pelletreon, 251. 
 Main v. Feathers, 147, 149. 
 Maine v. Ryder, 632. 
 Mainwaring v. Beevor, 388. 
 Mainwaring v. Jennison, 11. 
 Mainwaring r. Templeman, 583. 
 Major v. Lansley, 72, 348. 
 Major v. Todd, 577. 
 Major v. Watson, 596. 
 Malcom v. Malcom, 397. 
 Mallack r. Galton, 275. 
 Malloney r. Heron, 509. 
 Malloney v. Horan, 97. 
 Mallory v. Hitchcock, 242. 
 Mallory v. Thomas, 880. 
 Malloy v. Bowden, 493, 496. 
 Malone v. Majors, 118. 
 
 Malone v. McLaurin, 75. 
 
 Mamer v. Lussem, 448. 
 
 Man v. City of Elgin, 511. 
 
 Man v. Elkins, 257. 
 
 Mann v. Best, 277, 278. 
 
 Mann v. Edson, 91. 
 
 Mann v. Kelscy, 126. 
 
 Mann v. Pearson, 594, 604. 
 
 Mann v. State, 260. 
 
 Manchester v. Durfee, 321. 
 
 Manchester r. Hoag, 441. 
 
 Manchester v. Hough, 558. 
 
 Mandell v. McClare, 87. 
 
 Manderbach v. Bently Orphan Home, 
 
 427. 
 
 Manderschid v. Dubuque, 441. 
 Manderson v. Lukens, 301, 393. 
 Mandeville v. Welch, 213, 215. 
 Mandlebaum v. McDonnell, 298, 399. 
 Manhatten Co. v. Evertson, 97. 
 Manhatten Ins. Co. i: Weill, 248. 
 Manley v. Pettee, 193. 
 Manlore v. Gant, 636. 
 Manly v. Geason, 217. 
 Manly v. Lakin, 631. 
 Manly v. Slason, 217. 
 Mannpn r. Mannon, 119. 
 Manning v. Elliott, 206. 
 Manning v. Frazier, 217. 
 Manning v. Haydcn, 368. 
 Manning v. Johnson, 556. 
 Manning v. Kansas & T. Coal Co., 502. 
 Manning v. Laboree, 97. 
 Manning v. Smith, 609. 
 Manning v. Wasdale, 447. 
 Mannisig '. Markel, 253. 
 Mannsell v. Hart, 66. 
 Mansfield v. Mansfield, 569. 
 Mansfield v. Pembroke, 114. 
 Maple v. Kussart, 510. 
 Manton v. Blake, 600. 
 Maple r. Stevenson, 497. 
 Mara v. Pierce, 586. > 
 Mapps 7'. Sharpe, 251. 
 Marable v. Mayer, 573. 
 Marble v. Lewis, 113. 
 Marble v. Price, 493. 
 Marburg v. Cole, 181. 
 March v. Turner, 217. 
 Marden i'. Chase, 543. 
 Margolins ?. Muldberg, 146. 
 Markel v. Evans, 275. 
 Markell v. Markell, 282. 
 Marker v. Marker, 62, 67. 
 Markham v. Guerant, 370. 
 Markham v. Merrett, 86. 
 Markham v. Porter, '402. 
 Markings v. Markings, 463. 
 Markland r. Cramp, 147, 624. 
 Marlatt v. Warwick, 368. 
 Marlow v. Smith, 376. 
 Marmouth v. Plimpton, 2. 
 Marks v. Marks, 298. 
 Marks v. Pell, 247. 
 Marks v. Ryan, 18. 
 Markwell v. Markwell, 227, 277. 
 Marr v. Lewis, 290. 
 Marsellis v. Thalheimer, 82. 
 Marsh v. Austin, 237. 
 Marsh v. Lee, 262. 
 
 Ixxxiii
 
 TABLE OK CASES CITED. 
 
 [References arc to Sections.] 
 
 Marsh r. Logenby. 122. 
 
 Marsh r. Pike. 253. 
 
 M. it -hall t. Applegate, 127. 
 
 Marshall t. Cohen. 146. 
 
 Marshall r. Conrad, 462. 
 
 Marshall r. Corbett. 497, 595. 
 
 Marshall r. Crehore, 195. 
 
 Marshall, etc., School r. Iowa, etc., 201. 
 
 Mai -hall t. Fisk, 548. 
 
 Marshall r. Green. 563. 
 
 Marshall t. Joy. 368. 
 
 Marshall r. King, 301. 
 
 Marshall r. Mellon, 64. 
 
 Marshall r. Stephens, 73. 
 
 Marshall r. Stewart, 230. 
 
 Marston r. Marston, 270, 566. 
 
 Martin r. Abbott. 85. 
 
 Martin t. Allen, 172. 
 
 Martin r. Almond, 669. 
 
 Martin r. Baker, 614. 
 
 Martin r. Ballou, 202, 203. 
 
 Martin r. Cauble, 218. 
 
 Martin v. Cowles, 624. 
 
 Martin f. Crompe. 149. 
 
 Martin r. Kvansville, 598, 599. 
 
 Martin r. Flowers, 569. 
 
 Martin r. Franklin Ins. Co., 248. 
 
 Martin r. Funk, 361, 373. 
 
 Martin t. Goble, 443. 
 
 Martin r. Houghton, 468. 
 
 Martin r. Jones, 34. 
 
 Martin r. Judd, 495. 
 
 Martin r. Knowlys, 190. 
 
 Martin r. Martin, 97, 149. 
 
 Martin r. McReynolds, 251, 274. 
 
 Martin r. Nance, 597, 599. 
 
 Martin r. Nowlin, 251. 
 
 Martin r. O'Brien, 598. 
 Martin r. O'Connor, 139. 
 
 Martin v. Guattlebaum, 186, 580. 
 
 Martin r. Reneker, 78, 82. 
 
 Martin r. Remington, 74. 
 
 Martin :. Smart, 204. 
 
 Martin t 1 . Trail. 80. 
 
 Martin r. Waddell, 485, 519. 
 
 Martindale t. Smith, 254. 
 
 Martling v. Martling, 576. 
 
 Marvin r. Brewster Iron Co., 448. 
 
 Marvin r. Elliott, 605. 
 
 Marvin v. Prentice, 233, 266. 
 
 Marvin v. Smith, 349. 
 
 Mar\in r. Trumbell, 184. 
 
 Marvin v. Vedder, 257. 
 
 Marvin t-. Prentice, 233, 266. 
 
 Masich v. Shearer, 217. 
 
 Mason v. Ammon, 640. 
 
 Mason v. Bailey, 401. 
 
 Mason v. Crowder, 505. 
 
 Mason r. Dennison, 172. 
 
 Mason v. Hill, 444. 
 
 Mason v. Landeroth, 144, 153. 
 
 Mason r. Mason, 97. 
 
 Mason v. M. E. Church, 340, 641. 
 
 MMOD v. Moody, 228. 
 
 Mason v. Payne, 285. 
 
 Maston v. Stow, 155. 
 
 Mason v. Trustees Meth. Ch., 642. 
 
 Massachusetts Ins. Co. v. Wilson, 157. 
 
 Massay v. Davenport, 640. 
 
 Massey v. Craine, 615. 
 
 Ixxxiv 
 
 Massey v. Goydet, 448. 
 
 Massey *. Westcott, 583. 
 
 Mast r. Raper, 217. 
 
 Masters v. Pollic, 8. 
 
 Masterson v. Harris, 574. 
 
 Masury v. Southworth, 151. 
 
 Matador Co. v. Cooper, 666. 
 
 Matesky v. Feldman, 586. 
 
 Matheny v. Ferguson, 202, 204. 
 
 Matheney v. Sandford, 233. 
 
 Mather v. Boston, 598. 
 
 Mather v. Chapman, 598. 
 
 Mathew v. Damainville, 228. 
 
 Mathews v. Missouri Pac. Co., 239. 
 
 Mathewson v. Kilburn, 124. 
 
 Mathis v. Stufflebeam, 367. 
 
 Matley v. Long, 590. 
 
 Mattock v. Brown, 30. 
 
 Matteson v. Vaughn, 614. 
 
 Matthews v. Coalter, 554. 
 
 Matthews v. De Mantel, 232. 
 
 Matthews v. Duryea, 281. 
 
 Matthews v. Hudson, 393 
 
 Matthews v. Wallwyn, 226. 
 
 Matthews v. Ward, 165, 493. 
 
 Matthewson v. Smith, 87. 
 
 Mattice v. Lord, 148. 
 
 Mattison v. Mattison, 37. 
 
 Mattocks r. Stearns, 69, 83. 
 
 Matts v. Hawkins, 450. 
 
 Mauldin v. Cox, 495. 
 
 Maule v. Ashmead, 143. 
 
 Maule v. Weaver, 142, 587. 
 
 Maull v. Wilson, 66. 
 
 Maundrell r. Maundrell, 404, 406. 
 
 Maupin t'. Kmmons, 582, 586. 
 
 Maurice v. Maurice, 301, 397. ffl 
 
 Mauzy v. Mauzy, 30. 
 
 Mavrick v. Grier, 275. 
 
 Maverick r. Lewis, 131. 
 
 Maxcy v. O'Connor, 521. 
 
 Maxon v. Lane, 626. 
 
 Maxwell v. Griswold, 560. 
 
 Maxwell v. Newton, 272, 278. 
 
 May v. Fletcher, 243. 
 
 May v. Le Clair, 547. 
 
 May v. Lewis, 389. 
 
 May v. McKeenon, 585. 
 
 May v. Tillman, 92. 
 
 Maybury v. Brien, 86. 
 
 Mayer v. Kane, 367. 
 
 Mayes v. Hendry, 217, 218. 
 
 Mayer v. Hover, 640. 
 
 Mayes v. Manning, 186. ffl 
 
 Mayham v. Coombs, 217, 583. 
 
 Mayhew v. Hardisty, 139. 
 
 Maynard v. Hunt, 254. 
 
 Maynard v. May, 126. 
 
 Maynard v. Maynard, 137, 577. 
 
 Mayo v. Ah Loy, 533. 
 
 Mayo v. Feaster, 68. 
 
 Mayo v. Fletcher, 59, 68. 
 
 Mayo v. Foley, 533. 
 
 Mayo v. Hinchman, 603. 
 
 Mayo v. Judah, 234. 
 
 Mayo v. Newhoff, 451, 608. 
 
 Mayor v. Chadwick, 446. 
 
 Mayor v. De Armas, 521. 
 
 Mayor, etc.,, v. Ohio & P. R. R., 519. 
 
 Mayor v. Galluchat, 384.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.} 
 
 Mayor v. Mabie, 143, 144. 
 
 Mayor v, VVhitt, 157. 
 
 Mays v. Beech, 404. 
 
 Mays f. Hinckman, 603. 
 
 Maywood v. Logan, 146. 
 
 McAfee v. Arline, 605. 
 
 McAfee -j. Bettis, 121. 
 
 McAfee v. Keirn, 522. 
 
 McAlester, v. Landers, 144, 618. 
 
 McAllister v. Devane, 428. 
 
 McAllister v. McAllister, 041. 
 
 Me Alpine r. Burnette, 217. 
 
 McAlpine v. Powell, 127. 
 
 McAlpine v. Woodruff, 617. 
 
 McAnaw v. Tiffin, 291. 
 
 McAndrew v. Hollingsworth, 121, 125. 
 
 McAninch v. Smith, 5u4. 
 
 McAnulty v. Ellison, 74. 
 
 McArthur v. Franklin, 85, 87. 
 
 McArthur v. Scott, 40, 301. 
 
 McAteer v. McAteer, 236. 
 
 Me Main v. Johnson, 489. 
 
 McBrayer v. Roberts, 228. 
 
 McBrayer v. Walker, 576. 
 
 McBreen v. McBreen, 79. 
 
 McBride v. Burns, 592, 625. 
 
 McBride v. Wilkinson, 574. 
 
 McBrier v. Marshall, 170. 
 
 McBrown v. Dalton, 608. 
 
 McCabe . Bellows, 255, 258. 
 
 McCabe v. Hunter, 572. 
 
 McCabe v. Swap, 255, 258. 
 
 McCall v. Lenox, 59, 276. 
 
 McCall v. Mash, 279. 
 
 McCall v. Neely, 20, 491. 
 
 McCall v. Wells, 497. 
 
 McCalla v. Bayne, 578. 
 
 McCallister v. Willey, 366. 
 
 McCalloch ?. Maryland, 531. 
 
 McCall's Lessee v. Carpenter, 194. 
 
 McCandless v. Warner, 374. 
 
 McCann v. Oregon, 511. 
 
 McCarley v. Tappah County Supervisors, 
 
 572. 
 
 McCarthy v. McCarthy, 498. 
 McCarty v. Leggett, 614. 
 McCarty v. Teller, 117. 
 McCasker v. McEvery, 624. 
 McCaslin v. The State, 221. 
 McCaughn v. Young, 497. 
 McCaul v. Smith, 230. 
 McCauley v. Buckner, 321, 322. 
 McCauley v. Grimes, 93. 
 McCauley v. Smith, 229, 234. 
 McCausIand v. Fleming, 605. 
 McClain v. Gregg, 69. 
 McClanahan v. Porter, 105, 113. 
 McClellan v. Krall. 58. 
 McClellan v. Larcher, 298. 
 McClellan v. McClellan, 374. 
 McClelland v. Pullis, 660. 
 McClenahan v. New York, 151. 
 McClernan v. McClernan, 373. 
 McClintock v. Fontaine, 187. 
 McClintock v. Rogers, 696. 
 McClung v. Ross, 186, 498. 
 McClure v. Harris, 93. 
 McClure v. Thistle's Exr., 585. 
 McClurg v. Phillipps, 228. 
 McClurken v. Thompson, 234. 
 
 McCollum v. McKensie, 647. 
 
 McComber v. Mills, 256. 
 
 McConnell v. Am. Bronze Co., 435. 
 
 McCounell v. Downs, 6:.' -IT 
 
 McConnell v. Lemley, 161. 
 
 McConnell v. Peirce, 148, 194. 
 
 McCook v. Harp, 56. 
 
 McCord v. Hames, 218. 
 
 McCord v. McCord, 406. 
 
 McCormic v. Leggett, 556. 
 
 McCormick v. Bishop, 451. 
 
 McCormick, etc., Machine Co. v. Gates, 
 
 204. 
 
 McCormick v. Fitzmorris, 554. 
 McCormick v. Grogan, 368. 
 McCormick v. Hcrron, 515. 
 McCormick v. McCormick, 59. 
 McCormick v. McElligott, 310. 
 McCormick v. Silsby, 497. 
 McCormick v. Taylor, 107. 
 McCorry v. King's Heirs, 80, 536. 
 McCosker v. Brady, 382. 
 McCown -v. King, 329. 
 McCoy v. Dickinson, 504. 
 McCoy v. Galloway, 495. 
 McCracken v. Hall, 18. 
 McCrady v. Brisbane, 616. 
 McCready v. Thompson, 443. 
 McCreary v. Casey, 367. 
 McCreary v. Everding, 495. 
 McCreery v. Shaffer, 269, 290. 
 McCritlis v. Thomas, 625. 
 McCucker v. Goode, 201. 
 McCue v. Gallagher, 367. 
 McCulla v. Beadlestor, 258. 
 McCulloch v. Cowhed, 368. 
 McCulloch v. Endaly, 582. 
 McCullom v. Turpie, 285. 
 McCullough v. Ford, 367. 
 McCully v. Smith, 85. 
 McCumber v. Gilman, 269. 
 McCurdy v. Alpha Mining Co., 609. 
 McCurdy v. Canning, 181. 
 McCusper v. McEvey, 514, 582. 
 McDaniel v. Allen, 301. 
 Me Daniel v. McDaniel, 185. 
 McDaniels v. Calvin, 263. 
 McDaniels v. Cummings, 447. 
 McDaniels r. Sommons, 558. 
 McDermot v. French, 183. 
 McDermott v. Sedgwick, 134. 
 McDevitt v. Lambert, 168. 
 McDill v. McDill, 571. 
 McDonald v. Bank, 307. 
 McDonald v. Black, 248. 
 McDonald v. Crandall, 121. 
 McDonald v. Dunbar, 322, 640. 
 McDonald v. Eggleston, 653. 
 McDonald v. Hanlon, 167. 
 McDonald v. May, 155. 
 McDonald v. McDonald, 85. 
 McDonald v. McKinty, 3. 
 McDonell v. Pope, 156. 
 McDonough v. O'Neil, 368. 
 McDonough v. Squire, 233. 
 McDowell v. Adams, 477. 
 McDowell v. Morgan, 621. 
 McDowell v. Morotts, 248. 
 McDowell v. Simpson, 134, 164. 
 McDuffie v. Clark, 662. 
 
 Ixxxv
 
 TABLE OF CASES CilLi) 
 
 [References are to Sections.] 
 
 McKachin f. Stewart, 308. 
 
 McElinoync f. Cohen, 507. 
 
 McElroy f. I'.ropks, 147, 149. 
 
 McElroy t. Hiner, 570, 578. 
 
 McElruy t. McElroy, 373. 
 
 McKntire f. Drown, 504. 
 
 McEvoy f. Leonard, 195. 
 
 Mcl'addcn t. Allen, 15. 
 
 Me Far land r. Goodman, 126. 
 
 McGu t. Marshall, 560. 
 
 McC;ary :. Hastings, 017, 619. 
 
 McGec r. Hall, 3i.4. 
 
 McGce f. McCants, C31. 
 
 McGce f. McGce, 90. 
 
 McGce r. Porter, 632. 
 
 McGcorge f. IlotTman, 447. 
 
 McGill r. Thome, 233. 
 
 McGinnis f. McGinnis, 49. 
 
 McGiven f. \Vheelock, 257. 
 
 McGlaughlin r. Holman, 586. 
 
 McGonigal " Plummer, 218. 
 
 McGorrisk v. Uwyer, 13, 15. 
 
 AlcGovern i'. Knox, 307. 
 
 McGowan v. Reed, 195. 
 
 McGregor v. Brown, 4, 60. 
 
 McGregor v. Comstock, 42, 483. 
 
 McGrillis r. Thomas, 619. 
 
 McGuffey r. Finley, 274. 
 
 McGuffey v. Humes, 625. 
 
 McGuire r. Grant, 448, 449. 
 
 McGuire r. Joslyn, 146. 
 
 McGuire v. McRann, 572. 
 
 McHenry t'. Cooper, 286. 
 
 Mcllhaney T. Shoemaker, 242. 
 
 Mcllwani v. Scheibley, 95. 
 McIlvaJne v. Harris, 563. 
 
 Mclntier v. Shaw, 229, 253. 
 
 Mclntosh r. Rector, etc., St. Phillips 
 
 Church, 146. 
 
 Mclntyre v. Agric. Bank, 282. 
 Mclntyre v. Costelle, 91. 
 Mclntyre v. Mclntyre, 204. 
 Mclntyre *. Whitfield, 243. 
 Mclver v. Cherry, 273. 
 Mclyer v. Walker, 596. 
 Me Kay v. Bloodgood, 569. 
 McKary v. Gillman, 217. 
 McKean v. Brown, 98. 
 McKee t r . Angelrodt, 139. 
 McKee v. Chautauqua, 456. 
 McKee v. Dail, 295. 
 McKee v. Ellis, 562. 
 McKee v. Hicks, 576. 
 McKee v. Marshall, 562. 
 McKee r. Pfout, 84. 
 McKee v. Straub, 194. 
 McKee r. West, 565. 
 McKeegan v. Oniel, 653. 
 McKcen r. Mitchell, 581. 
 McKee's Admrs. v. Means, 373. 
 McKelvey v. McKelvey, 640. 
 McKelway v. Seymour, 202, 207. 
 McKenna v. Trust Co., 266. 
 McKeon r. Whitney, 139. 
 McKenrie v. Elliott, 434. 
 McKenzie v. Lexington, 156. 
 McKenzie r. Murphy, 122. 
 McKey v. Welch, 17, 693. 
 McKinley v. Peters, 189. 
 McKinley v. Smith, 590. 
 
 Ixxxvi 
 
 McKilkank i: Burlington, 166. 
 
 McKinney v. Moore, 195. 
 
 McKinney v. Reader, 156. 
 
 McKinney v. Rhoades, 578. 
 
 McKinney v. Settles, 567. 
 
 McKinstry r. Merwin, 262. 
 
 McKircher v. Hawley, 245. 
 
 McKnight v. Bell, 193. 
 
 McKnight v. Winner, 282. 
 
 McLain r. Garrison, 631. 
 
 McLain : ? . Thompson, 217. 
 
 McLanahan r. Reeside, 584. 
 
 McLane r. Pascal, 123. 
 
 McLarren t: Brewer, 368. 
 
 McLarren v. Spalding, 152. 
 
 McLaughlin v. Acorn, 269, 272. 
 
 McLaughlin v. Curtis, 255. 
 
 McLaughlin v. Johnson, 14. 
 
 McLaughlin v. Powell, 3. 
 
 McLaughlin *. Rice, 181, 183. 
 
 McLaughlin v. Shepard, 229. 
 
 McLean v. Barnard, 634. 
 
 McLean v. Bover, 59. 
 
 McLean v. McDonald, 298. 
 
 McLean v. McLean, 217. 
 
 McLean v. Nicoll, 134. 
 
 McLean v. River, 248. 
 
 McLean v. Smith, 495, 497. 
 
 McLean v. Swanton, 483. 
 
 McLean v. Towle, 284. 
 
 McLean v. Wallace, 217. 
 
 McLean r. Wunder, 146, 151. 
 
 McLeery v. McLeery, 115. 
 
 McLellan v. Jenniss, 190. 
 
 McLemore v. Carter, 368. 
 
 McLeran v. Benton, 163. 
 
 McLorley v. Larissa, 269. 
 
 McLory v. Arnett, 123. 
 
 McMahan v. Bowe, 559. 
 
 McMahon v. Burchell, 191. 
 
 McMichel r. McMichel, 34. 
 
 McMillan r. Bissell, 229, 233. 
 
 McMillan r. Gambill, 494. 
 
 McMillan r. .Watt, 448. 
 
 McMurray v. Investment Co., 205. 
 
 McMurray v. McMurray, 374. 
 
 McNair v. Funt, 492. 
 
 McNally v. Connolly, 16. 
 
 McNaughton v. McXaughton, 648. 
 
 McNaughten v. Partridge, 569. 
 
 McNear r. McComber, 592. 
 
 McNeely 7'. Langdon, 504. 
 
 McNeely r. Oil Co., 558. 
 
 McNeely v. Rucker, 574. 
 
 McNeill v. Cage, 217. 
 
 McNeil v. Kendall, 139. 
 
 McNemor v. Cohn, 570. 
 
 McNish v. Guerard, 376. 
 
 McNoble i>. Justiniano, 495. 
 
 McNulty v. Cooper, 373. 
 
 McPeck's Heirs -v. Graham's Heirs, 515. 
 
 McPheeters v. Wright, 180. 
 
 McPherson v. Cox, 376. 
 
 McPherson v. Hayward, 233. 
 
 McPherson v. House!, 273. 
 
 McPhillipps v. Fitzgerald, 178. 
 
 McQueen v. Fletcher, 496. 
 
 McQuesten v. Atty. Gen., 662. 
 
 McQuiddy r. Ware, 498. 
 
 McQuie v. Rag, 228.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 McQuinn v. McQuinn, 98. 
 
 McKaven r. McGuire, 583. 
 
 McRea v. Central National Bank, 13. 
 
 McRees Admr. 7. Means, 298, 385. 
 
 McRoberts v. Washburn, 454, 450. 
 
 McShane v. Main, 590. 
 
 McSimmons "'. Martin, 217. 
 
 McVay v. Bloodgood, 251. 
 
 McVey v. Quality, 368. 
 
 McWatty v. Jefferson Co., 125. 
 
 McWharton v. O'Neal, 637, 647. 
 
 McVVhinn v. Martin, 365. 
 
 McWilliams v. Bones, 125. 
 
 McWilliams i\ Morgan, 509. 
 
 McWilliams v. Xiseley, 33, 204. 
 
 Meacham v. Sternes, 384. 
 
 Mead v. Maben, 301. 
 
 Mead v. McLaughlin, 278. 
 
 Meade v. Leffingwell, 493. 
 
 Meader v. Meader, 125. 
 
 Meador v. Meador, 216. 
 
 Mebane v. Womack, 642. m 
 
 Mechanic's Bk. v. Bk. of Nn^ara, 251. 
 
 Mechan. Ins. Co. v. Scott, 131. 
 
 Medeoris v. Gwanberry, 560. 
 
 Medical College of New York v. N. Y. 
 
 University, 206. 
 Medmer v. Medmer, 367. 
 Medeoris r. Gwanberry, 560. 
 Medsker v. Swaney, 279. 
 Meech v. Fowler, 576. 
 Meecham v. Bunting, 76. 
 Meeker v. Warren, 228. 
 Meeker v. Wright, 181. 
 Meffert v. Dyer, 7. 
 Megargel v. Saul, 217. 
 Meigs v. Dibble, 123. 
 Meley v. Collins, 264. 
 Mellichamp v. Mellichamp, 543. 
 Melling v. Leak, 165. 
 Mellis v. Lathrop, 149. 
 Mellon v. Lemmon, 230. 
 Mellon v. Whipple, 253. 
 Mels v. Babst Brew. Co., 66. 
 Melvin v. Proprietors, 69, 501. 
 Memmert v. McKean, 619. 
 Menage v. Burke, 562. 
 Mende v. Delaire, 228. 
 Mendenhall v. Hall, 273. 
 Menley v. Zeigler, 573. 
 Menter v. Durham, 187. 
 Meramec v. Caldwell, 84. 
 Mercantile Bk. v. Ballard, 301, 810. 
 Mercantile Trust Co. v. Brown, 301. 
 Mercer v. McPherson, 266. 
 Mercer v. Mercer, 566. 
 Mercer v. Seldon, 80. 
 Merchants Bk. v. Calvin, 495. 
 Merchants Bank v. Ronttell, 149. 
 Merchants Bk. v. Thomson, 273. 
 Meredith v. Andres, 186. 
 Mercier v. Chase, 121. 
 Merriam v. Barton, 246. 
 Merriam r. Schmidt, 253, 285. 
 Merrifield r. City of Worcester, 444. 
 Merrifield t: CobleiRh, 202. 
 Merrill v. Bullock, 172, 178. 
 Merrill r. Emery, 118. 401. 
 Merrill r. Frame. 023. 
 Merrills r. Swift, 23fi. r-78. 
 Merriman r. Lacefield, 121. 
 
 Merritt v. Bartholick, 250. 
 
 Merritt r. Bemkerhorif, 444. 
 
 Merritt v. Harris, 207. 
 
 Merritt r. Hosmer, 267. 
 
 Merritt r. Judd, 16. 
 
 Merritt f. Morse, 624. 
 
 Merritt r. Parker, 435. 
 
 Merritt v. Yates, 97, 5T4. 
 
 Merry v. Hallett, 1. 
 
 Merryman v. Cumberland Paper Co., 186. 
 
 Mersereau r. Camp, 195. 
 
 Mershon v. Duer, 367. 
 
 Mershon v. Williams, 159. 
 
 Messelback, v. Norman, 577. 
 
 Messie v. Frechede, 497. 
 
 Messing v. Messing, 28. 
 
 Metcalf v. Cook, 73. 
 
 Metcalf v. Putnam, 527, 590. 
 
 Methodist Church v. Remington, 641. 
 
 Methodist Church r. Young, 37. 
 
 Mettler v. Miller, 79. 
 
 Meyer v. Campbell, 239. 
 
 Meyer v. Schurbruck, 195. 
 
 Meyer's Guardian v. Meyers, 121. 
 
 Mahoon v. Cain, 498. 
 
 Miami Ex. Co. r. U. S. Bank, 234, 247. 
 
 Michand v. Girod, 79. 
 
 Michigan, etc., R. R. r. Mellan, 368. 
 
 Mickerson v. Buck, 633. 
 
 Mickle v. Douglass, 5. 
 
 Mickles z'. Dillaye, 257. 
 
 Mickles r. Townsend, 257. 
 
 Middlebrook v. Corwin, 65. 
 
 Middlesex Banking Co. v. Field, 40, 211. 
 
 Middlesex v. Thomas, 257. 
 
 Middleton v. Findla, 562. . 
 
 Middleton v. Perry, 595. 
 
 Middleton v. Pritchard, 598. 
 
 Midland R. Co. v. Checkley, 3. 
 
 Midland Ry. Co. v. Fisher, 433, 626. 
 
 Midland Ry. Co. v. Haunchwood Co., 3. 
 
 Milay v. Milay, 634. 
 
 Milburn Wagon Co. r. Kennedy, 127. 
 
 Miles v. Fisher, 176. 
 
 Miles v. King, 260. 
 
 Miles i'. Miles, 66. 
 
 Milhan r. Sharp, 454. 
 
 Millard v. McMullin, 498. 
 
 Mill Dam Foundry r. Ilovey, 572. 
 
 Milledge v. Lamar. 99. 
 
 Millenberger r. Croyle, 558. 
 
 Miller v. A. & S. R. Co., 430. 
 
 Miller v. Aldrich, 248. 
 
 Miller v, Auseing, 233. 
 
 Miller v. Atkinson, 641. 
 
 Miller v. Auburn, 466. 
 
 Miller v. Baker, 16, 58. 
 
 Miller v. Bennett, 123. 
 
 Miller v. Bentley, 604. 
 
 Miller r. Beverly, 110. 
 
 Miller r. Bingham, 348. 
 
 Miller i: Blose's Exr., 367. 
 
 Miller v. Board of Supervisors, 201, 611. 
 
 Miller v. Boyless, 622, 624. 
 
 Miller r. Butler, 368. 
 
 Miller r. Carlisle, 640. 
 
 Miller r. Cherry, 603. 
 
 Miller v. Chittenden. 561, 641. 
 
 Miller v. Curry, 29. 
 
 Miller v. Dunn. 56?. 
 
 Miller r. Eisele, 284. 
 
 Ixxxvii
 
 TABLE OP CASES CITED. 
 
 [Iteferences are to Sections.] 
 
 Miller r. Ewing, 505. 
 
 Miller t. Fasler, 284. 
 
 Miller :. Finegan, K".'. 
 
 Miller r. Foster, 505. 
 
 Miller f. Goodwin, 565. 
 
 Miller f. Henderson, 253, 274. 
 
 Miller r. Lapham, 428. 
 
 Miller r. Levi, 211. 
 
 Miller f. Lincoln, 240. 
 
 Miiler f. Macomb, 37. 
 
 Miller f. Mann. 2. 
 
 Miller v. Miller, 186, 444. 
 
 Miller r. Mansfield, 576, 578. 
 
 Miller f. Myles, 495. 
 
 Miller f. Noonan, 626. 
 
 Miller f. Pence, 85, 404. 
 
 Miller r. Phillips, 647. 
 
 Miller f. Ridgely, 170. 
 
 Miller r. Rutherland, 251. 
 
 Miller ?. Sharp, 275. 
 
 Miller f. Snowman, 69. 
 
 Millc r. Stump, 87, 94. 
 
 Mille r. Teachout, 641. 
 
 Mille -. Texas, etc.', Ry. Co., 505, 511. 
 
 Mille f. Tipton, 238. 
 
 Millc :. Topeka Land Co., 605. 
 
 Mille r. Travers, 640. 
 
 Miller r. Warren, 158, 171. 
 
 Miller r. Wilson, 15. 
 
 Miller's Admr. v. Potterfield, 298, 408. 
 
 Miller's Exr. v. Simpson, 401. 
 
 Milieu f. Fowle, 595. 
 
 Millett r. Parker, 578. 
 
 Millican ?. Millican, 631. 
 
 Milliken r. Bailey, 246. 
 
 Millis r. Roof, 186. 
 
 Millspauch r. McBride, 258. 
 
 Millott f. Conrad, 149. 
 
 Mill River r. Smith, 2. 
 
 Mills v. Allen, 565. 
 
 Mills v. Catlin, 614. 
 
 Mills r. Darling, 236. 
 
 Mills v. Davison, 291. 
 
 Mills v. Dennis, 272, 275. 
 
 Mills v. Ewing, 512. 
 
 Mills r. Goff, 168. 
 
 Mills v. Gore, 576, 578. 
 
 Mills r. Gray, 251. 
 
 Mills v. Haines, 375. 
 
 Mills f. Hobbs, 123. 
 
 Mills v. Lockwood, 527, 590. 
 
 Mills v. Merryman, 149. 
 
 Mills v. Mills, 235. 
 
 Mills v. Millward, 645. 
 
 Mills v. Morris, 388. 
 
 Mills r. Smith, 586. 
 
 Mills v. Van Voorhies, 94, 273. 
 
 Millsap f. Estes, 556. 
 
 Millspaugh r. McBride, 242. 
 
 M finer t: Ramsey, 221. 
 
 Milroy v. Stockwell, 274. 
 
 Mimms v. Ewing, 504. 
 
 Vims T'. Mims, 273. 
 
 Miner v. Beekman, 269. 
 
 Miner r. Clark, 624. 
 
 Mineral R. & M. Co. v. Flaherty, 157. 
 
 Minnesota v. St. Paul R. R., 8. 
 
 Minnesota Deb. Co. v. Dean, 301. 
 
 Minor v. Hill, 274. 
 
 Minor r. Pres. of Watchez, 529. 
 
 Minor v. Rodgers, 373. 
 
 Ixxxviii 
 
 Minor r. Sharon, 161. 
 
 Minor v. Wilson, 126. 
 
 Minor's Heirs v. New Orleans, 289. 
 
 Minot v. Brooks, 494. 
 
 Minshall v. Lloyd, 16. 
 
 Minter v. Durham, 191. 
 
 Mirick v. Hoppin, 245. 
 
 Miss., etc., R. R. v. Archibald, 444. 
 
 Mitchell v. Burnham, 236, 582. 
 
 Mitchell v. Bartlett, 245. 
 
 Mitchell v. Bogan, 243, 265. 
 
 Mitchell v. Campbell, 498. 
 
 Mitchell v. Clark, 256. 
 
 Mitchell v. Denson, 418. 
 
 Mitchell v. Einstein, 601. 
 
 Mitchell v. Fullington, 233. 
 
 Mitchell v. Knapp, 298, 301. 
 
 Mitchell v. Mayor, 448, 450. 
 
 Mitchell v. Pirie, 653. 
 
 Mitchell v. Ryan, 561, 578. 
 
 Mitchell 3L. Seipel, 431. 
 
 Mitchell Sevier, 69. 
 
 Mitchell v. Shortt, 576. 
 
 Mitchell v. Simpson, 322. 
 
 Mitchell t'. Warner, 616. 
 
 Mitchell v. Walker, 640. 
 
 Mitchell v. Weaver, 272. 
 
 Mitchleson v. Smith, 290. 
 
 Mix v. Hotchkiss, 248. 
 
 Mixon 7'. Armstrong, 634. 
 
 Mizell r. Burnett, 203. 
 
 Moberly v. Trenton, 209. 
 
 Mobile Dock, etc., Co. 7-. Kuder, 285. 
 
 Moddox v. Bramlett, 2o4. 
 
 Model Loding House Ass'n v. City o 
 
 Boston, 242. 
 
 Modlin v. Kennedy, 63. 
 Moffatt r. Cook, 31. 
 Moffatt 7'. Hardin, 253. 
 Moffatt v. Strong, 401. 
 Mogg v. Mogg, 388, 638. 
 Mohr v. Tulip, 556. 
 Mollineaux v. Powell, 68. 
 Monk v. City of Wilmington, 490, 498. 
 Montague v. Dawes, 277, 278. 
 Montague 7'. Dent, 16. 
 Montague v. Gay, 149. 
 Montague r. Hayes, 374. 
 Monteflore r. Browne, 410, 584. 
 Montford f. Cadogan, 377. 
 Montford r. Deffenbacker, 408. 
 Montgomery v. Bruere, 92. 
 Montgomery 7'. Chadwick, 246. 
 Montgomery v. Co. Com., 159. 
 Montgomery v. Craig, 158. 
 Montgomery 7.'. Montgomery, 321. 
 Montgomery v. Sturdivant, 609. 
 Mony^ienny i\ Dering, 312. 
 Moody 7 1 . King, 78. 
 Mooers v. White, 650. 
 Moon v. Jennings, 187. 
 Mooney v. Maas, 273, 275. 
 Moore v. Abernathy, 479, 556. 
 Moore v. Beaspm, 242, 255. 
 Moore v. Boogin, 244. 
 Moore v. Boyd, 164, 173. 
 Moore v. Cable, 246, 247. 
 Moore v. Cornell, 241. 
 Moore 7'. Crump, 368. 
 Moore v. Darby, 75. 
 Moore v. Dick, 105.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Moore v. Ditnond, 321, 642. 
 Moore v. Esty, 87, 92. 
 Moore v. Farmer, 48*. 
 Moore v. Frost, 85, 
 Moore v. Hasleton, 577. 
 Moorehead v. Scovill, 552. 
 Moore v. Howe, 399. 
 Moore v. Hes, 81. 
 Moore v. Lesseur, 572. 
 Moore v. Littel, 321, 511. 
 Moore v. Luce, 53. 
 Moor v. Lyons, 297, 301. 
 Moor i'. Maudlebaum, 368. 
 Moor v. Mansfield, 154. 
 Moor -. Maxwell, 521. 
 Moor v. Merrill, 624. 
 Moor v. Miller, 135. 
 Moore v. Mobley, 498. 
 Moore v. New York, 85, 102. 
 Moore i'. Parker, 322, 385. 
 Moore v. Pickett, 374. 
 Moore v. Pitts, 140, 627. 
 Moore v. Rake, 397. 
 Moore v. Rawson, 443. 
 Moore v. Rollins, 94. 
 Moore r. Shannon, 195. 
 Moore v. Shultz, 343. 
 Moore v. Shureteff, 284, 285. 
 Moore v. Smith, 163. 
 Moore v. Thompson, 495. 
 Moore v. Thorp, 190. 
 Moore v. Tisdale, 97. 
 Moore v. Titman, 246. 
 Moore v. Vail, 619, 624. 
 Moore ^'. Vinten, 69. 
 Moore v. Wail, 250, 274. 
 Moore v. Weaver, 321. 
 Moore v. Webber, 144. 
 Moore v. Williams, 367. 
 Moore v. Worthy, 218. 
 Moorhead v. Scovel, 575. 
 Moose v. Carson, 525. 
 Moose v. Trimmier, 509. 
 Mora v. Murphy, 509. 
 Moran v. Bergen, 151. 
 Moran v. Gardemeyer, 236, 272. 
 Moran v. Hays, 374. 
 Moran v. Lezotte, 604. 
 Moran v. Pellifaut, 253. 
 Moran v. Lomes, 76, 592. 
 Mordecai r. Jones, 640. 
 More v. Moore, 641. 
 Moreau v. Detchemendy, 42. 
 Moreau r. Safferons, 184. 
 Morehall v. Corbett, 596. 
 Morehead v. Watkins, 164. 
 Morehouse v. Cotheal, 61, 398. 
 Moreland v. Bernhart, 233. 
 Morelock v. Barnard, 640. 
 Moreton r. Harrison, 217. 
 Morey v. Sohier, 648. 
 Morgan v. Bissell, 136. 
 Morgan v. Blatchley, 105. 
 Morgan v. Dalton, 157, 158. 
 Morgan v. Field, 238. 
 Morgan v. Fisher's Admr., 3C8. 
 Morgan v. Henderson, 618. 
 Morgan v. Kline, 251. 
 Morgan v. Lamed, 512. 
 Morgan v. Morgan, 79, 118. 
 Morgan v. Plumb, 276. 
 
 Morgan v. Reading, 597, 599. 
 
 Morgan v. Smith, 87. 
 
 Morgan v. Woodward, 243. 
 
 Morgan v-. Wright, 87. 
 
 Moriarty v. Ashworth, 265. 
 
 Moriata v. McRea, 99. 
 
 Moring v. Abies, 498. 
 
 Morley v. Sanders, 54. 
 
 Morrell v. Fisher, 592. 
 
 Morrell v. Ingle, 495. 
 
 Morrill v. Noyes, 238. 
 
 Morrjll v. Titcomb, 498. 
 
 Morris v. Apperson, 157. 
 
 Morris v. Henderson, 577. 
 
 Morris v. Knight, 57. 
 
 Morris v. McClary, 494. 
 
 Morris v. Morris, 75. 
 
 Morris v. Moulton, 126. 
 
 Morris v. Nixon, 228, 234. 
 
 Morris v. Pate, 218. 
 
 Morris v. Peck, 253. 
 
 Morris v. Phelps, 625. 
 
 Morris v. Potter, 393. 
 
 Morris -v. Sargent, 97. 
 
 Morris v. Stepens, 561. 
 
 Morris v. Vanwren, 554. 
 
 Morris v. Wadsworth, 584. 
 
 Morris v. Wheler, 273. 
 
 Morris Admr. v. Davis, 286. 
 
 Morris Canal v. Lewis, 510. 
 
 Morris Canal v. Lewis, 510. 
 
 Morris Supply Co. v. McColgan, 583. 
 
 Morrisett v. Stevens, 321. 
 
 Morrison v. Beirer, 373. 
 
 Morrison v. Bowman, 569. 
 
 Morrison v. Buckner, 245, 265. 
 
 Morrison v. Campbell, 629. 
 
 Morrison v. Chadwick, 154. 
 
 Morrison v. Chapin, 495. 
 
 Morrison v. Fletcher, 299. 
 
 Morrison v. Jones, 228. 
 
 Morrison v. Keen, 597. 
 
 Morrison v. Kelly, 578. 
 
 Morrison v. King, 432. 
 
 Morrison i'. Kinstra, 373. 
 
 Morrison v. Marquardt, 443. 
 
 Morrison v. McArthur, 615. 
 
 Morrison v. McDaniel, 122. 
 
 Morrison v. Morrison, 575. 
 
 Morrison v. Rassignol, 132. 
 
 Morrison v. Schorr, 400. 
 
 Morrison v. Wilson, 590. 
 
 Morrow v. Willard, 601. 
 
 Morse v. Aldrich, 147. 
 
 Morse v. Byam, 278. 
 
 Morse v. Carpenter, 562. 
 
 Morse v. Churchill, 497. 
 
 Morse v. Copeland, 435, 467. 
 
 Morse v. Goddard, 163, 245. 
 
 Morse v. Hayden, 202, 475. 
 
 Morse v. Merritt, 245. 
 
 Morse v. Morrell, 380. 
 
 Morse v. Morse, 642. 
 
 Morse v. Proper, 305. 
 
 Morse v. Royal, 368. 
 
 Morse v. Salisbury, 674. 
 
 Morse v. Stockman, 195. 
 
 Morton v. Barrett, 847. 
 
 Morton v. Bradhern, 122. 
 
 Morton v. Noble, 97. 
 
 Morton v. Onion, 647. 
 
 Ixxxix
 
 FABLE OF CASES CITED. 
 
 [Ifcfcrcnccs are to Sections.] 
 
 Morton f. Robards. 683. 
 
 Moiton t'. Woods, 103, 107. 
 
 Mostly r. Marshall, 04, 288. 
 
 Moses t. Johnson, 365, 380. 
 
 Mo>es :. bt. Louis Sectional Dock Co., 
 
 441. 
 
 M.. slur f. Whitney, 638. 
 Moshier t. Meek, 218. 
 Moshicr f. Reding, 135. 
 Moss t-. Gallimore, 215. 
 Moss f. Moss, 367. 
 Moss : . Odell, 244. 
 Moss . - Scott, 495. 
 Moss :. Sheldon, 609. 
 Mosser t. Mosser's Exrs., 637. 
 Mosson t. Creditors, 236. 
 Mott >: Clark, 585. 
 Molt ': Ens, 441. 
 Mott i. Palmer, 615. 
 Moulton T . Robinson, 65. 
 Moulton ?. Trafton, COS. 
 Mouncc :. Byars, 215. 
 Mount f. Suydam, 251. 
 Mourat :. Seattle, 295. 
 Mowry f. Wood, 216. 
 Moyer : Drummond, 122. 
 Moyle !. Moyle, 64. 
 Mudd :. Mullican, 50. 
 Mueller r. N. M. St. P. Co., 18. 
 Muir f. Cross, 217. 
 Mulany f. Mulany, 77. 
 Mulford 7'. Peterson, 250. 
 Mullen T. Strieker, 443. 
 Muller -: Boggs, 178. 
 Muller t. Wadlington, 251. 
 Muller v. Whittier, 269. 
 Mulliken r. Mulliken, 221. 
 Mullin f. Erwin, 504. 
 Mulrooney v. Obear, 12, 607. 
 Mulry 7-. Norton, 488. 
 Mumford f. Brown, 190. 
 Mum ford 7'. Whitney, 465. 
 Mummy !. Johnston, 530. 
 Munch f. Shabel, 367. 
 Mundy f. Mundy, 645. 
 Munday i. O'Neal, 7. 
 Munger r. Casey, 235. 
 Municipality z: Orleans Cotton Press, 
 
 487. 
 
 Munkwitz . Uhlig, 140. 
 Munn f. Burgess, 279. 
 Munn -. Worrall, 606, 608. 
 Munneslyn <. Munneslyn, 84. 
 Munoz ?. Wilson, 578. 
 Munro 7'. Collins, 298. 
 Munroe r. Hall, 200, 204. 
 Munroe -. Merchant, 494. 
 Munro r. Ward, 496. 
 Munson t: Munson, 254. 
 Murdock f. Chapman, 238. 
 Murdock f. Clark, 233, 240. 
 Murdock v. Cox, 2fi4. 
 Murdock v. Giffonl. 15. 
 Murdock r. Gilchrist, 565. 
 Murdock r. Hughes, 368. 
 Murphy r. Bldg. Co., 144. 
 Murphy r. Calley, 234, 236. 
 Murphy i: Century Co., 148. 
 Murphy i: Nathans, 367, 580. 
 Murphy r. Nelson, 495. 
 Murphy r. Parifay, 231. 
 
 XC 
 
 Murphy !. I'eabody, 367. 
 
 Murphy r. Price, 018. 
 
 Murphy v. Trigg, 233. 
 
 Murphy v. Welch, 427. 
 
 Murray v. Ballon, 582. 
 
 Murray v. Bender, 12. 
 
 Murray t'. Gouvcneur, 500. 
 
 Murray r. Hall, 177, 186. 
 
 Murray f. Lylburn, 308. 
 
 Murray r. Murphy, 633. 
 
 Murray v. Murray, 305. 
 
 Murray v. Pannaci, 504. 
 
 Murray v. Porter, 238. 
 
 Murray v. Riley, 244. 
 
 Murray v. Stair, 579. 
 
 Murray r. Walker, 233. 
 
 Murrell v. Jones, 249. 
 
 Murry v. Harway, 148. 
 
 Musgrove f. Bouser, 581. 
 
 Musgrove v. Kennell, 253. 
 
 Musham f. Musham, 305, 308. 
 
 Mushingum Turnpike v. Ward, 562. 
 
 Musick v. Barney, 497. 
 
 Muskett v. Hill, 468. 
 
 Mussey v. Scott, 173, 5G9. 
 
 Mustard v. Wohlford, 556. 
 
 Mutual, etc., Ins. Co. 7'. Brown, 569. 
 
 Mut. Life Ins. Co. r. Corey, 574. 
 
 Mutual Life Ins. Co. 7'. Dake, 259, 584. 
 
 Mutual Ins. Co. v. Raleigh, 473. 
 
 Mutual Life Ins. Co. 7. Shipman, 30i, 
 
 413. 
 
 Mutual L. Ins. Co. r. Smith, 276. 
 Muzzey v. Davis, 441. 
 Myar v. Snow, 310. 
 Myer -u. Hobbs, 448. 
 Myers v. Adler, 204. 
 Myers v. Bentz, 204. 
 Myers v. Croft, 522. 
 Myers v. Estell, 245. 
 Myers v. Kingston Coal Co., 130, 
 Myers v. Ross, 586. 
 Myers v. Vanderbilt, 631. 
 Myers v. White, 226, 245. 
 Mylar -v. Hughes, 494. 
 Mylin v. King, 187, 193. 
 Myrick v. Hard, 640. 
 
 N 
 
 Nailer v. Stanley, 285. 
 
 Nalon v. Chambers, 30. 
 
 Nance v. Nance, 367. 
 
 Nannborf v. Schunlann, 410. 
 
 Napier v. Bulwinkle, 446. 
 
 Napier v. Howard, 388. 
 
 Napper v. Sanders, 297, 308. 
 
 Nash v. Clark, 525. 
 
 Nat. Bank 7'. Bank, 185. 
 
 Nat. Bank v. Shelton, 121. 
 
 Nat. Bond Sec. Co. v. Daskam, 662. 
 
 Nat. Exch. Bank r. Anningham, 439. 
 
 Nave t 1 . Berry, 151. 
 
 Nazareth Inst. v. Lowe, 90. 
 
 Neale v. Hagthorp. 269. 
 
 Neale v. Reed, 248. 
 
 Neal v. Speigle, 218. 
 
 Naar v. Naar, 407. 
 
 Needham v. Branson, 181. 
 
 Needham v. Judson, 558, 605. 
 
 Needles v. Martin, 641.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Neff v. Turkic, 76. 
 
 Negaunee Iron Co. v. Iron Cliffe Co., 
 
 590. 
 
 Neiderstein v. Cusick, 159. 
 Neidig v. Eiffer, 277. 
 Neil v. Neil, 633. 
 Neill v. Morley, 556. 
 Neilson v. Blight, 251. 
 Neilson v. Iowa Eastern R. Co., 2. 
 Neilson v. Lagow, 371. 
 Xcimcewitz r. Sohn, 236. 
 Neligh v. Mechenor, 238. 
 Nelms i: Kennon, 275. 
 Nelson v. Sown, 252, 284. 
 Nelson v. Boyce, 263. 
 Nelson v. Commercial Bank, 121. 
 Nelson v. Hall, 595. 
 Nelson v. Iowa, etc., R. R., 263. 
 Nelson v. Loder, 258. 
 Nelson v. Nelson, 642. 
 Nelson v. Sims, 521. 
 Nepeau v. Doe, 171. 
 Nerhath V. Althouse, 157. 
 Nesbit v. Brown, 626. 
 Nesbit v. Hanway, 278. 
 Nettleton v. Sikes, 4. 
 Neumaier 7'. Vincent, 125. 
 Neumeister v. Goddard, 595, 596. 
 Neustacher v. Schmidt, 103. 
 Neves v. Scott, 302, 373. 
 Nevil v. Saunders, 347. , 
 Nevitt v. Bacon, 236. 
 Newall v. Wright, 247. 
 Newbold v. Ridgway, 113. 
 Newburgh Turnpike Co. v. filler, 456. 
 Newcolm v. Coulson, 3. 
 Newcomb r. Bonham, 234. 
 Newcopib v. Ramer, 160. 
 Newell v. Hill, 587. 
 Newell v. Wright, 248. 
 New England, etc., Co. v. Ober, 574. 
 New England Jewelry Co. v. Merriam, 
 
 242. 
 
 Newerloon r. Riddell, 511. 
 Newhall t. Bart, 229. 
 Newhall 7'. Five Cents Savings Bank, 90, 
 
 258. 
 
 Newhall i: Ireson, 597. 
 Newhall v. Pierce, 229. 
 Newhall v. Sav. Bkg., 255. 
 Newhall r. Wheeler, 497. 
 Newill v. Newill, 388. 
 New Jersey Zinc & Iron Co. v. Morris, 
 
 200. 
 
 Newkirk r. Newkirk, 236. 
 Newland v. Newland, 298. 
 Newlands v. Paynter, 583. 
 Newlin 7'. Osborn, 576. 
 Newliney i'. Lucas. 625. 
 Newman T. Bank of Cal., 186. 
 Newman v. Chapman, 247, 274. 
 Newman f. Dreifurst, 190. 
 Newman v. French, 151. 
 Newman r. Jackson, 282. 
 Newman r. Rutter, 158. 
 Newman v. Samuels, 228. 
 New Orleans r. Riddell, 512, 514. 
 Newson r. Clark, 641. 
 Newson v. Pryor, 595, 596. 
 Newton v. Clark, 633. 
 Newton r. Cook, 54. 
 
 Newton v. Harland, 172. 
 
 Newton v. Howe and Drury, 178, 593. 
 
 Newton v. Manwaring, 242. 
 
 Newton v. Mayo, 498. 
 
 Newton v. McKay, 243. 
 
 Newton v. McLean, 217, 380. 
 
 Newton v. Porter, 368. 
 
 Newton v. Taylor, 368. 
 
 New Vienna Bank v. Johnson, 562. 
 
 New York Life Ins. Co. r. Aiken, 253. 
 
 New York Life Ins. Co. r. Mayor, 87, 
 90. 
 
 New York, etc., R. R. Co. v. City of 
 Providence, 441. 
 
 New York Store Merc. Co. v. Thur- 
 mond, 281. 
 
 Nichol v. Thomas, 556. 
 
 Nicholas v. Parezell, 122, 173. 
 
 Nicholls v. Wentworth, 429. 
 
 Nichols v. Allen, 366. 
 
 Nichols v. Baxter, 248. 
 
 Nichols v. Denny, 176, 354. 
 
 Nichols v. Eaton, 370. 
 
 Nichols v. Glover, 218. 
 
 Nichols v. Levy, 370. 
 
 Nichols v. Luce, 431. 
 
 Nichols v. McCabe, 233. 
 
 Nichols v. Nichols, 127, 195. 
 
 Nichols v. Otto, 279. 
 
 Nichols v. Park, 98. 
 
 Nichols v. Rogerson, 429. 
 
 Nichols v. Smith, 593. 
 
 Nichols v. Williams, 166. 
 
 Nicholson v. Bettle, 893. 
 
 Nicholson v. Halsey, 379. 
 
 Nicholson v. Wardsworth, 469. 
 
 Nickell v. Tomlispn, 97. 
 
 Nickell v. Tracey, 257. 
 
 Nickerson r. Buck, 632. 
 
 Nicoll v. N. Y. & Erie R. R., 30, 207. 
 
 Niel v. Kinney, 217. 
 
 Nightingale v. Burrell, 39, 298. 
 
 Nightingale v. Hidden, 363, 609. 
 
 Nightingale v. Withington, 556. 
 
 Nigro v. Hotch, 16. 
 
 Niles v. Davis, 498. 
 
 Niles v. Harmon, 285. 
 
 Niles v. Patch, 598. 
 
 Nims v. Palmer, 579. 
 
 Nix v. Pfeifer, 487. 
 
 Nixon v. Porter, 596. 
 
 Nixon v. Walter, 598. 
 
 Noble v. Bosworth, 606. 
 
 Noble v. Burnett, 634. 
 
 Noble r. Butterworth, 13. 
 
 Noble v. Cent. R. R. Co., 509. 
 
 Noble v. Graham, 225. 
 
 Noble v. 111. Cent. R. R. Co., 688. 
 
 Noble v. Sylvester, 15. 
 
 Nock v. Nock, 633. 
 
 Noe r. Hern, 373. 
 
 Noel v. Ewing, 85. 
 
 Noel's Admr. v. Noel's Admr., 480. 
 
 Noffts 7'. Ross, 87. 
 
 Nolte's Appeal. 219. 
 
 Noonan r. Isley. 514. 
 
 Noonan v. Lee, 619. 
 
 Norcross t'. Griffiths, 597, 599. 
 
 Norcross v. James, 626. 
 
 Norfleet v. Cromwell, 626. 
 
 Norman 7'. Wells, 147, 626. 
 
 xci
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Norman r. Winch, 625. 
 
 Norris t. Hall. 88. 
 
 Norris t-. Moody, 503. 
 
 Norrit f. Morrill, 100. 
 
 Norris f. Moulton, 123, 255. 
 
 Norris r. Wilkinson, 213. 
 
 North f. Rogers, 217. 
 
 Northam T'. Hurley, 438. 
 
 Northampton Bk. r. Balliett, 250. 
 
 Northampton Mills f. Ames, 243, 255. 
 
 North Carolina R. R. r. Wilson, 370. 
 
 Northcut f. Slaughter, 99. 
 
 Northcut f. VVhipp, 99. 
 
 Northcutt r. Northcutt, 632. 
 
 Northern Trans. Co. of Ohio v. Chicago, 
 
 448. 
 
 Northness v. Hijlstead, 100. 
 Northwestern Fire Ins. Co. v. Lough, 
 
 233. 
 
 Northwestern Land Ass'n v. Grady, 368. 
 Northwestern Mut. Fire Ins. Co. v. 
 
 Blankcnship, 556. 
 Northy v. Worthy, 251. 
 Norton v. Cooper, 267. 
 Norton v. Leonard, 347, 390. 
 Norton v. Lewis, 285. 
 Norton r. Norton, 341, 371. 
 Norton v. Tufts, 98. 
 Norton f. Webb, 244. 
 Norton r. Whitehead, 569. 
 Norwich Ins. Co. v. Boomer, 248. 
 N'orwood r. Marrow, 96, 110. 
 Nottingham r. Jennings, 399. 
 Nourse v. Merriam, 312. 
 Norwell v. Johnson, 219. 
 N'oyes v. Clark, 234. 
 Noyes v. Rich, 245. 
 Noyes t'. Sawyer, 272. 
 Noyes v. Southworth, 647. 
 Noyes r. White, 251. 
 Nugent v. Riley, 228, 229. 
 Null v. Fries, 231. 
 Numoz v. Wilson, 578. 
 Nutting v. Herbert, 586. 
 Nye v. Hoyle, 433, 626. 
 Nye v. Taunton Branch R. R. ( 102. 
 
 Oakes v. Marcey, 512. 
 
 Oakes v. Monroe, 168. 
 
 Oaksmith v. Johnston, 505. 
 
 Gates v. Cook, 371. 
 
 Obert v. Obert, 194. 
 
 O'Royle v. Thomas, 298. 
 
 O'Rrien v. Ran field. 634. 
 
 O'Rrien v . Kreuz, 123. 
 
 O'Brien v. Kustener, 9, 16. 
 
 O'Brien v. O'Leary, 393. 
 
 O'Brien v. Troxell, 170. 
 
 Ocean Grove, etc., Assn. v. Asbury Park, 
 
 445. 
 
 Ocean S. S. Co. v. Hamilton, 161. 
 VConnor v. Gourand, 146. 
 O'Connor v. McMahon, 181. 
 O'Connor v. Murphy, 642. 
 O'Connor v. Pittsburg, 448. 
 O'Daniel v. Bakers' Union, 497. 
 Odell v. Buds, 556. 
 Odell v. Odell. 641. 
 Odinorne *. Mason, 574. 
 
 xcii 
 
 Odlin v. Grove, 509. 
 
 Odneal i 1 . City of Sherman, 441. 
 
 Odone v. Beverly, 78. 
 
 O'Donnell v. Hitchcock, 16. 
 
 O'Donnell v. Mclntyre, 157. 
 
 O' Fallen v. Clopton, 272. 
 
 Officer v. Board of Home Miss., 410. 
 
 Offut v. Scott, 186. 
 
 Ogburn v. Conner, 445. 
 
 Ogdcn v. Gibbons, 456. 
 
 Ogden v. Haven, 583. 
 
 Ogden v. Jennings, 493. 
 
 Ogden v. Stock, 9. 
 
 Ogden v. Thornton, 218. 
 
 O'Hara v. Richardson, 495. 
 
 O'Herrin v. Brooks, 605. 
 
 Ohio Central R. R. Co. v. Central Trust 
 
 Co, 276. 
 
 Ohnsbury v. Turner, 278. 
 O'Keefe v. Calthorpe, 376. 
 O'Kelly v. O'Kelly, 578. 
 Okison v. Patterson, 548, 565. 
 Olcott v. Tope, 371. 
 Olcott v. Shepard, 205. 
 Olcott v. Supervisors, 102. 
 Olcott v. Wing, 185. 
 Olcut v. Bynum, 278. 
 Old Colony Trust Co. v. Wichita, 240. 
 Olden v. Sassman, 130. 
 Oldenbaugh v. Bradford, 234. 
 Olds v. Cummings, 253. 
 Oliffe v. Wells, 366. 
 O'Linda v. Lothrop, 601. 
 Oliver v Cunningham, 235. 
 Oliver v. Decatur, 245. 
 Oliver v. Gay, 157. 
 Oliver v. Hook, 427. 
 Oliver v. Moore, 135. 
 Oliver v. Piatt, 498, 621. 
 Olliver v. Hook, 465. 
 Olmstead v. Dunn, 301. 
 Olmstead v. Elder, 250. 
 Olmstead v. Niles, 134. 
 Olney v. Howe, 373. 
 Olney v. Hull, 306. 
 Olsen v. Burk, 491, 501. 
 Omaha & Grant, etc., Co. v. Tabor, 189. 
 Ombony v. Jones, 18. 
 Onasch v. Zinkel, 367. 
 O'Neal v. Brown, 577. 
 O'Neil v. Capelle, 231, 233. 
 O'Niel v. Grab, 222. 
 O'Niel v. Webster, 574. 
 O'Neill v. Douthitt, 264. 
 O'Neill v. Gray, 244. 
 Orll v. Bartlett, 275. 
 Ordway v. Remington, 150. 
 Oregon Iron Co. v. Hughes, 1. 
 Oregon R. R. v. Quigley, 627. 
 Orford v. Benton, 81. 
 Oriental Bank v. Haskins, 566. 
 O'Riley v. McKiernan, 373. 
 Orleans v. Chatham, 369. 
 Orman v. Day, 450. 
 Orme v. Roberts, 583. 
 Ormiston v. Olcott, 380. 
 Ormsby ?'. Tarascon, 278. 
 Orndoff v. Hummer, 634. 
 Orons v. Veazie, 532. 
 O'Rorke v. Smith, 431. 
 O'Rourke v. Beard, 373.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 O'Rourke v. Brown, 139. 
 
 O'Rourke v. H. P. Cooper & Co., 139. 
 
 O'Rourke r. O'Conner, 583. 
 
 Orphans' Home Soc. r. Dowdell, 495. 
 
 On- v. Clark, 176, 578. 
 
 Orr v. Hadley, 239, 510. 
 
 Orr v. Quimby, 525. 
 
 Orr v. Rode, 272. 
 
 Orr v. Yates, 373. 
 
 Orser v. Hoag, 483. 
 
 Orth v. Jennings, 583. 
 
 Orvis v. Newell, 262, 584. 
 
 Osborn v. Cook, 633. 
 
 Osborn f. Jefferson Bank, 647. 
 
 Osborn v. Osborn, 329. 
 
 Osborne v. Homie, 108. 
 
 Osborne v. Mull, 195. 
 
 Osborne v. Tunis, 276. 
 
 Osbourn v. Fallows, 266. 
 
 Osgood v. Eaton, 367. 
 
 Osgood v. Howard, 9. 
 
 Osgood v. Thompson Bk., 233. 
 
 Osman v. Sheafe, 344. 
 
 Osmond v. Fitsroy, 556. 
 
 Ostenson v. Severson, 219. 
 
 Osterhout v. Shoemaker, 92. 
 
 Osterman v. Baldwin, 374, 498. 
 
 Ostrander v. Hart, 273. 
 
 Ostrander v. Spickard, 118. 
 
 Ostrom v. McCann, 273. 
 
 O'Sullivan r. Norwood, 146. 
 
 Oswald v. McCurley, 123. 
 
 Oswald ?'. Mollett, 139. 
 
 Otis i'. Conway, 139. 
 
 Otis r. Smith, 4. 
 
 Ottaquechee Sav. Bk. v. Holt, 237. 
 
 Ottawa Plank Road v. Murray, 234. 
 
 Ottman v. Moak, 286. 
 
 Otto r. Long, 124. 
 
 Ottomeyer v. Pritchett, 360. 
 
 Ottumwa Lodge v. Lewis, 190. 
 
 Oury v. Saunders, 498. 
 
 Ousler v. Robinson, 294. 
 
 Outcalt v. Ludlow, 504. 
 
 Outcalt v. Outcalt, 640. 
 
 Outerbridge v. Phelps, 432. 
 
 Outland v. Bowen, 298. 
 
 Outon v. Weeks, 406. 
 
 Outtun i: Dulin, 157. 
 
 Overfield v. Christie, 499, 624. 
 
 Overman r. Simo, 201. 
 
 Overseers v. Sears, 30. 
 
 Overton v. Devisson, 596. 
 
 Overton v. Overton, 634. 
 
 Overton v. Williston, 16. 
 
 Owen v. Baker, 574. 
 
 Owen v. Brookport, 157. 
 
 Owen -v. Fields, 211, 606. 
 
 Owen v. Hyde, 57, 62. 
 
 Owen i'. Morton, 186. 
 
 Owen v. Slatter, 600. 
 
 Owen v. Yale, 98. 
 
 Owens r. Barrel!, 118. 
 
 Owens v. Clayton, 468. 
 
 Owens v. Owens, 195, 878. 
 
 Owens v. Ottowa, 583. 
 
 Owings v. Emery, 64. 
 
 Owings v. Hill, 358. 
 
 Owings v. Tucker, 578. 
 
 Owsley v. Johnson, 659. 
 
 Owsley v. Owsley, 363. 
 Oyster v. Knull, 30. 
 
 Pabst Brewing Co. v. Thorley, 144. 
 
 Pace v. Payne, 498. 
 
 Packard v. Ames, 205. 
 
 Packard v. Agawan Ins. Co., 248. 
 
 Packard v. Moss, 494. 
 
 Packard v. Putnam, 374. 
 
 Packer v. Rochester, 275. 
 
 Padelford z: Padelford, 57. 
 
 Padfield v: Padfield, 632. 
 
 Page v. Foster, 231. 
 
 Page v. Hayward, 42, 298. 
 
 Page v. Kinsman, 157. 
 
 Page v. Murray, 433. 
 
 Page v. Palmer, 202. 
 
 Page v. Pierce, 251. 
 
 Page v. Robinson, 243, 265. 
 
 Page v. Roper, 408. 
 
 Page v. Waring, 582, 584. 
 
 Paiker r. Wasley, 631. 
 
 Pain v. Smith, 213, 216. 
 
 Paine v. Benton, 236. 
 
 Paine v. Woods, 2, 598. 
 
 Painitup v. Hill, 34. 
 
 Palethorp v. Bergner, 148; 
 
 Palmer v. Edwards, 139. 
 
 Palmer v. Fleshees, 448. 
 
 Palmer v. Foote, 239. 
 
 Palmer v. Forbes, 2. 
 
 Palmer v. Guthrie, 233. 
 
 Palmer v. Jones, 509. 
 
 Palmer v. Mulligan, 599. 
 
 Palmer v. Nelson, 157. 
 
 Palmer v. Snell, 272, 283. 
 
 Palmer v. Sterling, 217. 
 
 Palmer v. Stevens, 240. 
 
 Palmer v. Young, 146, 320. 
 
 Palmer v. Wetmore, 152. 
 
 Palmeter v. Carey, 253. 
 
 Palmetto Lumber Co. v. Risley, 368. 
 
 Palms r. Palms, 180, 399. 
 
 Panton v. Holland, 448. 
 
 Parish v. Ward, 483. 
 
 Parish v. Whitney, 617. 
 
 Park v. Hall, 228. 
 
 Park v. Loomis, 592. 
 
 Park v. Pratt, 559, 603. 
 
 Parke v. Hush, 266. 
 
 Parke v. Kilham, 178. 
 
 Parke v. Mears, 673. 
 
 Parker v. Anderson, 529. 
 
 Parker v. Banks, 493. 
 
 Parker v. Bell, 239. 
 
 Parker v. Bowles, 185. 
 
 Parks v. Converse, 376. 
 
 Parker v. Dufford, 576. 
 
 Parker v. Foote, 443. 
 
 Parker v. Foy, 217, 565. 
 
 Parker v. Framingham, 601. 
 
 Parker v. Glover, 302. 
 
 Parker v. Hale, 160. 
 
 Parker v. Hill, 384. 
 
 Parker v. Kane, 518, 595. 
 
 Parker r. Kelley, 217. 
 
 Parker v. Logan, 867. 
 
 Parker r. Marks, 614. 
 
 xciii
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Parker t. McMillan. 366. 
 
 Parker t . Metxgar, 506. 
 
 Parker r. O'Bear, 101. 
 
 Parker f. Overman, 532. 
 
 Parker r. Parker. 85, 105. 
 
 Parker r. Proprietors, etc., 611. 
 
 Parker r. Safford, 672. 
 
 Parker t . Snyder, 807. 
 
 Parker i. Wallis, 484. 
 
 Parker r. Webb, 468. 
 
 I'.ukor r. White, 406. 
 
 r.iki-r t-. White, 273. 
 
 Parkhurst f. Cummings, 256. 
 
 Parkhurst f. Northern, etc., R. R., 238. 
 
 Parkhurst f. Smith, 301. 
 
 Parkhurst r. Van Courtlandt, 374. 
 
 Parkins t*. Coxe, 62. 
 
 Parkist r. Alexander, 581. 
 
 Parkman f. SuflFolk Sav. Bank, 374. 
 
 Parkman f. Welch, 566. 
 
 Parks f. Bishop, 438. 
 
 Parks .- . Boston, 152. 
 
 Parks f. Hewlett, 672. 
 
 Parks f. Jackson, 583. 
 
 Parks f. Robinson, 52, 408. 
 
 Park's Admr. r. Am. Home Miss. Soc., 
 
 298. 
 
 Parmelee v. Daun, 251. 
 Parmelee v. Simpson, 576, 577. 
 Parmenter f. Walker, 279. 
 Parmenter r. Webber, 139. 
 Parmentier r. Gilespie, 263. 
 Farmer's Admr. r. Farmer, 233. 
 Parr r. Newby, 123. 
 Parramore r. Taylor, 633. 
 Parrett v. Bell, 607. 
 Parrington t: Pierce, 229. 
 Parrish v. Rose, 54. 
 Parshall v. Eggart, 277. 
 Parsons r. Camp, 2. 
 Parsons v. Copeland, 13. 
 Parsons v. Johnson, 427, 428. 
 Parsons v. Miller, 627. 
 Parsons -. Parsons, 637. 
 Parsons v. Winslow, 56. 
 artch v. Spooner, 492. 
 Partridge v. Bere, 247. 
 Partridge v. Cavender, 370. 
 Partridge r. Colegate, 179. 
 Partridge i>. Dorsey, 38. 
 Partridge v. Partridge, 251. 
 Partridge v. Swazey, 236. 
 Partridge v. Wilson, 264. 
 Patch v. Wilde, 270. 
 Patchen v. Patchen, 640. 
 Pate f. French, 393, 512. 
 Patrick v. Morrow, 558, 637. 
 Patrick t: Sherwood, 54. 
 Patten r. Moore, 585, 586. 
 Patten v. Talman, 634. 
 Patterson v. Arthur, 617. 
 Patterson v. B'ake, 185. 
 Patterson v. Boston, 152. 
 Patterson v. Cappon, 617. 
 Patterson v. Carneal, 567. 
 Patterson r. Ellis, 397. 
 Patterson v. Harlan, 606. 
 P^rterton v. Martin, 193. 
 Peterson v. Pease, 512. 
 Patterson v. Phila., etc.. R. R. Co., 434. 
 Patterson v. Triumph Ins. Co., 248. 
 
 xciv 
 
 Patterson v. Wilson, 413. 
 
 Patterson v. Yeaton, 235, 518. 
 
 Pattison v. Horn, 368. 
 
 Patton v. Axley, 164. 
 
 Patton v. Beecher, 374 
 
 Patton 7 1 . Chamberlain, 374. 
 
 Patton 7-. Deshon, 147, 149. 
 
 Patton v. Pearson, 250. 
 
 Patty 7'. Goolsby, 408. 
 
 Patty f. Pease, 285. 
 
 Paugh & Co. v. Ceremido, 143. 
 
 Paul 7'. Campbell, 181. 
 
 Paul 7'. Cragnas, 17. 
 
 Paul v. Witman, 624. 
 
 Paulk 7'. Cooke, 566. 
 
 Pauzel v. Brookmire, 251. 
 
 Paxon 7'. Paul, 254. 
 
 Paxton 7'. Stewart, 368. 
 
 Payne v. Atterbury, 217, 220. 
 
 Payne v. Avery, 217. 
 
 Payne -. Harrell, 221, 276. 
 
 Payne r. James, 147. 
 
 Payton v. Mayor of London, 448. 
 
 Payton v. Sherburne, 168. 
 
 Peabody v. Hewett, 501. 
 
 Peabody v. Minot, 178. 
 
 Peabody v. Tarbell, 329. 
 
 Peake v. Jenkins, 631. 
 
 Pearce v. Foreman, 217. 
 
 Pearce v. McClenaghan, 428. 
 
 Pearce v. Savage, 176, 371. 
 
 Pearce i: Taylor, 582. 
 
 Pearce v. Wilson, 230. 
 
 Pearl v. Hervey 219. 
 
 Pearl 7'. McDowell, 556. 
 
 Pearsell 7'. Post, 429. 
 
 Pearson 7'. Allen, 439. 
 
 Pearson r. Helliwell, 463. 
 
 Pearson v. Johnson, 427. 
 
 Pearson 7'. Sanderson, 146. 
 
 Pearson v. Seay, 231. 
 
 Pease v Inh. Whitman, 181. 
 
 Pease v. Kelley, 217. 
 
 Pease T. Pilot Knob Iron Co., 243. 
 
 Pease v. Stone, 478. 
 
 Peaslee v. Tower, 447. 
 
 Pease 7'. Warren, 250. 
 
 Peaslee v. Gee, 603. 
 
 Peavey 7-. Tilton, 578. 
 
 Pecare r. Chouteau, 615. 
 
 Peck v. Ayers, 68. 
 
 Peck 7'. Ratchelder, 15. 
 
 Peck v. Carpenter, 191. 
 
 Peck v. Jones, 152, 619. 
 
 Peck 7'. Lockridge, 186, 187. 
 
 Peck ?'. Mallams, 552. 
 
 Peck 7'. Northrup, 149. 
 
 Peck v. Ormsby, 126. 
 
 Peckham v. Lego, 298, 302. 
 
 Pederick v. Searle, 504. 
 
 Peer r. Wadsworth, 60, 139. 
 
 Pegnes t: Warley, 493. 
 
 Pells 7'. Brown, 397. 
 
 Pelton 7\ Draper, 160. 
 
 Pelton 7'. Westchester, 365. 
 
 Pemberton 7'. Pemberton, 118. 
 
 Pence 7'. Duval, 618, 625. 
 
 Pence 7'. Gobbert, 239. 
 
 Pendlay 7-. Eaton, 637. 
 
 Pendleton ?-. Fay, 253. 
 
 Pendleton v. Rooth, 247.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Penhallow v. Dwight, 69, 529. 
 
 Penhey v. Harrell, 314. 
 
 Penn v. Case, 126. 
 
 Penn v. Ott, 238. 
 
 Penn v. Rodrigues, 527. 
 
 Penn. Co. v. Dovey, 577. 
 
 Fennel v. Weyant, 577. 
 
 Pennington r. Hanby, 231. . 
 
 Pennjngton v. Ogden, 479. 
 
 Pennington v. Pennington, 45, 399. 
 
 Pennsylvania Co. v. Dovey, 577. 
 
 Penton v. Robert, 16, 58. 
 
 People v. Bd. Foxcoms. 456. 
 
 People v. Canal Appraisers, 597. 
 
 People v. Canal Cotnmrs., 598. 
 
 People v. Chase, 656. 
 
 People v. Gilon, 617. 
 
 People r. Henderson, 597. 
 
 People v. Howell, 531. 
 
 People i: Humphrey, 525. 
 
 People 7. Irwin, 483. 
 
 People v. Laws, 601. 
 
 People v. Livingston, 520. 
 
 People v. Lowndes, 497. 
 
 People v. Mayor, etc., 559. 
 
 People v. Miller, 512. 
 
 People v. Organ, 553. 
 
 People v. Platt, 597, 599. 
 
 People v. Rickhert, 134. 
 
 Peoples' Sav. Bank v. Denig, 322. 
 
 People v. Simon, 656. 
 
 People v. Snyder, 576. 
 
 People v. Supreme Court, 234. 
 
 People v. Utica Ins. Co., 453. 
 
 Pepper v. O'Dowd, 493, 496. 
 
 Percival r. Percival, 98. 
 
 Perez v. Rayband, 146. 
 
 Perin v. Carey, 641. 
 
 Ferine v. Dunn, 275. 
 
 Ferine r: Teague, 170. 
 
 Perkins v. Brierfield, 266. 
 
 Perkins r. Dibble, 229. 
 
 Perkins v. Emory, 463. 
 
 Perkins v. Gibson; 217, 219. . 
 
 Perkins v. Perkins, 426. 
 
 Perkins v. Presnell, 407. 
 
 Perkins r. Stearne, 250, 257. 
 
 Perkins r. Woods, 273. 
 
 Perminter ?. McDaniel, 553. 
 
 Perrin r. Blake, 321, 322. 
 
 Perrin v. N. Y. Cen. R. R., 601. 
 
 Perrin v. Read, 239. 
 
 Perrine r. Perrine, 558. 
 
 Perry v. Aldrich, 55. 
 
 Perry r. Barton, 495. 
 
 Perry v. Binney, 605. 
 
 Perry i'. Carr, 2. 
 
 Perry v. Grant, 217, 218. 
 
 Perry r. Hale, 638. 
 
 Perry v. Kearns, 253. 
 
 Perry r. Kline, 45. 
 
 Perry r. Meddowcraft, 231. 
 
 Perry r. Price, 565. 
 
 Perry r. Sadler, 489. 
 
 Persiful 7'. Hind, 127. 
 
 Person r. Chase, 556. 
 
 Peru v. Barrett, 454. 
 
 Peter v. Beverly, 375. 880. 
 
 Peter v. Byrne, 74, 558. 
 
 Peter r. Kendall, 454. 
 
 Peters v. Berkemeier, 568, 578. 
 
 Peters v. Florence, 257. 
 
 Peters T>. Jamestown Bridge Co., 250. 
 
 Peterson v. Clark, 68, 230. 
 
 Peterson v. Edmonson, 151. 
 
 Peterson v. Ferrell, 68. 
 
 Peterson v. Fowler, 195. 
 
 Peterson v. Hall, 5. . 
 
 Peterson v. Jackson, 397. 
 
 Peterson v. McCullough, 493. 
 
 Peterson v. Sloss. 521. 
 
 Pettand v. Keep, 432. 
 
 Petril v. Folz, 625. 
 
 Pettee i: Hawes, 608. 
 
 Pettee 7'. Hawkes, 430. 
 
 Fetters v. Fetters, 649. 
 
 Petterson . Brewing Co., 161. 
 
 Pettijohn v. Beasley, 118. 
 
 Pettingill v. Porter, 439. 
 
 Pettit v. Johnson, 282. 
 
 Pettitt v. Norman Institute, 292. 
 
 Petty 7-. Malier, 479. 
 
 Peyton v. Mayor of London, 449. 
 
 Pfeiffer v. McNatt, 123. 
 
 Phasis v. Leachman, 103. 
 
 Phelan v. Brady, 586. 
 
 Phelps v. Chesson, 207. 
 
 Phelps 7'. Harris, 381. 
 
 Phelps 7'. Jackson, 368. 
 
 Phelps v. Jepson, 176. 
 
 Phelps v. Kellog, 522. 
 
 Phelps r. Sullivan, 553. 
 
 Philadelphia T. Girard, 399, 641. 
 
 Philadelphia Assn., etc., -. Wood, 531. 
 
 Philadelphia, etc., R. R. v. Woelpper, 
 
 238. 
 Philadelphia, VV. & B. R. R. -. Howard, 
 
 578. 
 
 Philbrick 7'. Ewing, 16, 606. 
 Philbrick 7'. Spangler, 631. 
 Philbrook v. Delano, 217. 
 Phjllipps v. Covert. 162. 
 Phillips 7 r . Hardenburg, 85. 
 Phjllipps v. Pressen, 125. 
 Phjllipps 7'. Sherman, 178. 
 Phillipps 7'. Wiseman, 98. 
 Phillips r. Allen, 57. 
 Phillips r. Bk. of Lewiston, 585. 
 Phillips 7'. Dressier, 434. 
 Phillips 7 1 . Ferguson, 204. 
 Phillips 7'. Houston, 577, 578. 
 Phillips ?'. Kent, 506. 
 Phillips 7'. Overfield, 368. 
 Phillips 7'. Phillips 7'. 307. 
 Phillips r. Sherman, 521. 
 Phillips 7'. Skinner, 217. 
 Phillips 7'. Thompson, 365. 
 Phillips v. Tudor, 593. 
 Phjlljps v. Winslow, 238. 
 Phillip's Academy 7'. King, 331. 
 Phillips 7.'. Green, 556. 
 Philpot r. Hoare, 140. 
 Phinney 7'. Watts, 600. 
 Phipard 7'. Phiphard, 373. 
 Phipps 7'. Hope, 631. 
 Phipps v. Lord Ennismore, 370. 
 Phipps i>. Tarpley, 615. 
 Phyfe -v. Riley, 253. 
 Piatt v. Hubbell, 193. 
 Piatt 7'. McCullough, 632. 
 Pibus 7'. Mitford, 322. 
 Pickard v. Kleis, 148. 
 
 XCV
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Pickering : . Langdon, 649. 
 
 'ickering r. Moore, 2. 
 
 'ukcrtiig t. O'Brien, 134. 
 
 'ickering t. Pickering, 190. 
 
 'ickering f. Stapler, 608. 
 
 'kkct :. Uowdall, 516. 
 
 'ickrit :. Anderson, 151. 
 Pitkill ;. Buckner, 281. 
 
 i :. Ferguson, 157., 
 
 'ickctt ;. Jones, S50, 277. 
 
 it-kett f. Pcay, 118. 
 
 'ico f. Coiumbet, 191. 
 
 'icr ;. Carr. 153, 154. 
 
 'icrce r. Barney, 50;!. 
 
 ierce f. Brew, 565, 617. 
 
 'ierce f. Brown, 157. 
 
 'ierce ;. Chase, 181. 
 
 'ierce f. Emery, 238. 
 
 'ierce ?-. Faunce, 253. 
 
 'ierre ?. Fernald, 443. 
 
 'ierce f. George, 13. 15. 
 
 'icrce f. Grimley, 278. 
 
 'iester f. Picster, 259. 
 
 'icrce f. Potter, 239, 276. 
 Pierce f. Robinson, 233. 
 Pierce f. Simmons, 30. 
 Pierce :. Trigg, 86. 
 Pierce f. Vansell, 528. 
 Pierce r. Wanett, 80. 
 Pierce r. Williams, 105. 
 Pierson r. Armstrong, 565. 
 Pierson r. Lane, 45. 
 Pifcr 7-. Ward, 90. 
 PigRot r. Mason, 147. 
 Piugott 7. Straton, 156. 
 Pike ;. Brown, 142. 
 Pike 7-. Calvin, 515, 582. 
 Pike i: Collins, 236. 
 Pike v. Evans, 494. 
 Pike v. Goodnow, 253, 254. 
 Pike 7-. Leiter, 134. 
 Pike i: Robinson, 495. 496. 
 Pillot r. Boosey, 148. 
 Pillow 7'. Roberts, 494, 572. 
 Pillsbury r. Smyth. 254. 
 Pirn . Downing, 380. 
 P'nckney -. Burrage, 505. 
 Pin Jail r. Trevor, 368. 
 Pine f. New York, 2. 
 Pincw -. Judson, 166. 
 Pingree 7. McDuffee, 443. 
 Pingrey 7-. Watkins, 139. 
 Pinhorn 7 r . Souster, 163. 
 Pinkham -. Blair, 393. 
 Pinney r. Fellows, 374. 
 Pinson . Ivey. 331. 
 Pinson 7'. Williams, 97. 
 Pintard r. Goodloe, 217. 
 Piper r. Smith, 185. 
 Pitcher r. Dore. 510. 
 Pitcher r. Laycock. 556. 
 Pitman v. Conner. 619. 
 Pitman f. Thornton. 266, 271. 
 Pitts v. Aldrich, 258. 
 Pitts v. Cable. 231. 
 Pitts v. Parker. 219. 
 Pitts v. Pitts. 98. 
 Pitts v. Whitehead, 494. 
 
 itumjrg, etc., R. R. Co. v. Reno, 433, 
 
 Pivard v. Gisenhof. 562. 
 
 xcvi 
 
 Plain f. Roth, 290. 
 
 Plain Bridge Co. r. Smith, 456. 
 
 Plant v. James, 606. 
 
 Planter's Bank v. Davis, 81. 
 
 Planter's, etc., Bank v. Dickenson, 126. 
 
 Planter's Bank v. Henderson, 126. 
 
 Planter's Bk. i'. Johnson, 528. 
 
 Planter's Bk. t: Prater, 368. 
 
 Planter's Compress Co. v. Howard, 168. 
 
 Platt ?'. Brannan, 385. 
 
 Playter v. Cunningham, 143. 
 
 Pledger v. Ellerbe, 92. 
 
 Pleydell v. Pleydell, 397. 
 
 Plimpton r. Converse, 498, 514. 
 
 Plimpton v. Ins. Co., 248. 
 
 Plum -'. Studebaker, 727. 
 
 Plumb r. Toffs, 204. 
 
 Plumer r. Plumer, 65. 
 
 Plumleigh r. Cook, 207. 
 
 Plummer r. Hillside, 17. 
 
 Plummer f. Rohman, 126. 
 
 Plummer v. Russell, 571. 
 
 Plunket T'. Holmes, 81, 316. 
 
 Plunkett 7'. Penson, 239. 
 
 Plush 7-. Diggs, 139. 
 
 Plymouth 7'. Carber, 617. 
 
 Plympton r. Boston Dispens., 54. 
 
 Podesta 7'. Bims, 528. 
 
 Podlech 7'. Phelan, 18. 
 
 Podmore v. Gunning, 368. 
 
 Poe v. Domec, 545, 565. 
 
 Poygnard v. Smith, 247, 495. 
 
 Poindexter v. Henderson, 68. 
 
 Pomdexter 7'. McCannon, 231. 
 
 Point Pleasant Land Co. v. Cranmer, 
 
 441. 
 
 Polk --. Clinton, 266. 
 Polk v. Linthicum, 376. 
 Poll 7'. Maill, 128. 
 Pollack 7'. Stacy, 139. 
 Pollard 7'. American Land Mtg. Co., 246. 
 Pollard 7'. Cocke, 583. 
 Pollard 7'. Dwight, 014. 
 Pollard 7-. Greenvil. 417. 
 Pollard -.'. Pollard, 118. 
 Pollard r. Shaffer, 66, 147. 
 Pollard v. daughter. 99. 
 Pollock 7'. Kittrcli, 162. 
 Pollitt 7'. Long, 444. 
 Poison v. Ingram, 429. 
 Polyblank v. Hawkins, 69. 
 Polzin v. Polzin, 204. 
 Pomeroy r. Layting, 260. 
 Pomfret v. Ricord, 431, 440. 
 Pomroy 7'. Stevens, 586. 
 Ponce 7'. McElroy, 366. 
 Pond v. Allen, 301, 640. 
 Pond 7 r . Johnson, 109. 
 Ponder v. Ritzinger, 256. 
 Ponty v. Moss, 363. 
 Pool v. Blaikie, 79. 
 Pool v. Hathaway, 258. 
 Pool f. Lewis, 444. 
 Pool v. Reid, 126. 
 Poole v. Bentley, 136. 
 Poole v. French, 529. 
 Poole v. Gerrard, 126. 
 Poole v. Jackson, 573. 
 Poole 7'. Longueville, 69. 
 Poole 7'. Morris, 298, 393. 
 Poole v. Poole, 322.
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.] 
 
 Poor v. Oakman. 563. 
 
 Pope f. Biggs, 245. 
 
 Pope r. Brassfield, 180. 
 
 Pope t p . Durant, 272. * 
 
 Pope v. Gerrard, 151. 
 
 Pope v. O'Hara, 435, 606. 
 
 Pope v. Skinkle, 9. 
 
 Pope v. Town of Union, 441. 
 
 Portens v. Holm, 633. 
 
 Porter v. Bleiler, 149. 
 
 Porter v. Bradley, 397, 617. 
 
 Porter v. City of Dubuque, 217. 
 
 Porter v. Hill, 193, 625. 
 
 Porter v. King, 239. 
 
 Porter v. Nelson, 233. 
 
 Porter v. Osman, 197, 301. 
 
 Portis v. Parker, 75. 
 
 Porter v. Pillsbury, 27C. 
 
 Porter v. Sevey, 585. 
 
 Porter v. Woodhouse, 578. 
 
 Portland v. Terwillicr, 205. 
 
 Posey v. Cook, 347. 
 
 Post v. Door, 245. 
 
 Post v. Jackson, 143. 
 
 Post v. Kearney, 139. 
 
 Post v. Pearsall, 424, 465. 
 
 Post v. Rivers, 640. 
 
 Post v. Van Houten. 310. 
 
 Post v. Vetter, 146. 
 
 Poston v. Eubank, 273. 
 
 Potter v. Clapp, 115. 
 
 Potter v. Couch, 33, 404. 
 
 Potter v. Everitt, 85. 
 
 Potter v. Gardner. 383. 
 
 Potter v. Kimball, 228, 505. 
 
 Potter v. Stevens. 251. 
 
 Potter v. Thornton. 641. 
 
 Potter v. Titcomb. 472. 
 
 Potts v. Coleman. 498. 
 
 Potts v. Gilbert, 501. 
 
 Pounds v. Dale, 647. 
 
 Powell -: Brandon, 321. 
 
 Powell v. Clark. 594. 
 
 Powell v. Gosspm, 80. 
 
 Powell v. Harrison, 263. 
 
 Powell i'. Monson Co., 15, 105. 
 
 Powell v. Murray, 348. 
 
 Powell v. Powell, 85. 
 
 Powell v. Rich, 563. 606. 
 
 Powell v. Simrnes, 443. 
 
 Power v. Cassidy, 360. 
 
 Power v. Daugh'ertv, 475, 478. 
 
 Powers v. Bullwinkle, 45. 
 
 Powers i'. Dennison. 615. 
 
 Powers ?'. Martin, 237. 
 
 Powers 7'. McFerron, 582. 
 
 Powers 7'. Rude, 57fi. 
 
 Poweshiek Co. 7'. Dennison, 272. 
 
 Powles 7'. Tunes, 248. 
 
 Powtucket r. Ballou. 633. 
 
 Poyas v. Wilkins, 559. 
 
 Prage v. Chinn, 186. 
 
 Prahar v. Tansey. 161. 
 
 Prather v. McClelland, 637. 
 
 Pratt v. Ayer, 374. 
 
 Pratt v. Bank of Bennington, 242. 
 
 Pratt 7'. Brown, 620. 
 
 Pratt v. Clark, 221. 
 
 Pratt 7'. Clemens. 572. 
 
 Pratt v. Colt, 370. 
 
 Pratt v. Conway, 252, 284* 
 
 Pratt v. Farrer, 163. 
 
 Pratt v. Felton, 118. 
 
 Pratt -v. Plainer, 638. 
 
 Pratt v. Levan, 140. 
 
 Pratt v. Meyers, 566. 
 
 Pratt v. Miller, 366. 
 
 Pratt v. Ogden, 465. 
 
 Pratt v. Pratt, 123. 
 
 Pratt v. Skolfield, 250. 
 
 Pratt v. Sweetser, 435. 
 
 Pratt v. Vanwycks Exrs., 217, 221. 
 
 Pray v. Pierce, 543, 545. 
 
 Preachers' Aid Soc. v. Rich, 641. 
 
 Preble v. Hay, 164. 
 
 Preffit v. Henderson, 60. 
 
 Preiss v. Lepoidevin, 624. 
 
 Prentice v. Northern Pac. R. R. Co., 521. 
 
 Presbrey v. Presbrey, 186, 590. 
 
 Presbyterian Church v. Kellar, 601. 
 
 Prescott v. Prescott, 123, 296. 
 
 Prescott v. Walker, 88. 
 
 Prescott v. White, 435, 617. 
 
 Prestman v. Baker, 578. 
 
 Preston v. Brant, 195, 306. 
 
 Preston v. Hodges, 251. 
 
 Preston v. Robinson, 593. 
 
 Preston v, Wilcox, 376. 
 
 Preston v. Wright, 187. 
 
 Prettyman r. Walston, 56. 
 
 Prevost v. Graty, 498. 
 
 Price v. Berrington, 556. 
 
 Price v. Brown, 495. 
 
 Price v. Carter, 216. 
 
 Price v. Courtney, 411. 
 
 Price v. Cutts, 228. 
 
 Price v. Furman, 556. 
 
 Price v. Grover, 233. 
 
 Price v. Tackson. 494, 495. 
 
 Price v. King, 608. 
 
 Price v. Madison, 2. 
 
 Price v. Ferric, 225, 234. 
 
 Price v. Pickett, 58. 
 
 Price v. P. & Ft. W. & C. R. R., 579. 
 
 Price v. Price, 105. 
 
 Price v. Sisson. 97, 342. 
 
 Price v. Clingri. 547. 
 
 Price v. Norwood, 208. 
 
 Prickett v. Parker, 471. 
 
 Priddy -'. Griffith, 84. 
 
 Priest 7'. Cummings, 97. 
 
 Priest v. Rice, 583. 
 
 Prim v. Walker, 178, 489. 
 
 Prince 7'. Hake, 122. 
 
 Princeton, Etc., Co. v. Munson, 272. 
 
 Prindle v. Anderson, 169. 
 
 Pringle r. Coal Co., 5. 
 
 Pringle v. Dunn, 581, 584. 
 
 Prior v. Comstock, 488. 
 
 Prior v. Scott, 590. 
 
 Pritchard v. Brown, 229. 
 
 Pritchard r. Walker, 177, 298. 
 
 Pruitt v. Holly, 54. 
 
 Probas Co. 7'. Johnson, 214. 
 
 Proctor v. Hodgson, 431. 
 
 Proctor v. Jennings, 444. 
 
 Proctor v. Maine Cent. Co., 493. 
 
 Proctor 7'. Proctor. 640. 
 
 Prodgers v. Laugham, 566. 
 
 Proprietors T. Lowell, 4. 
 
 Proprietors v. McFarland, 496. 
 
 xcvii
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Proprietor's Braille Sq. Church ;. Grant, 
 
 3)3. 
 
 Proprietors, etc., r. Grant, 211. . 
 Proprietors, etc., r. I'rescott, 510. 
 I'rosser r. Hardest)-. 393. 
 Providence Bk. r. Billings, 531. 
 Providence Steamboat Co. :. Fall River, 
 
 441. 
 
 Provost :. Provost, 631. 
 Pruett r. Hallcn, 300. 
 Pryce r. Bury, 216. 
 Pryor r. Castleman, 310. 
 Pryor r. Hollingcr, 260. 
 Pueblo, etc., Valley R. R. v. Beshoar, 
 
 230. 
 
 Pugh f. Arton, 18. 
 Pugb T . Holt, 230. 
 Pugh r. Pugh, 640. 
 Pulford r. Morton, 367. 
 Pullan r. C. & C. R. R., 245. 
 Pullan f. Simpson, 529. 
 Pullen r. Hopkins, 495. 
 Pullen r. Pullen, 98. 
 Pullis r. Pullis, 228. 
 Pulpre'ss r. African Ch., 380. 
 Pulse f. Osborne, 56. 
 Pumphrey r. Pumphrey, 118. 
 Purcell f. Goshorn, 658. 
 Purcell v. Mather, 238. . 
 Purcell f. Huntingdon, 242, 250. 
 Purefoy r. Rogers, 86, 298. 
 Purvis r. Wilson, 195. 
 Pusey t'. Presbyterian Hospital, 164. 
 Putnam r. Bond, 590. 
 Putnam -. Ritchie, 269. 
 Putnam r. Tuttlc, 608. 
 Putnam r. Wise, 135. 
 
 Putnam's Free School r. Fisher, 377, 493. 
 Putney f. Dresser, 176. 
 Pyer v. Carter, 432. 
 Pylant T'. Reeves, 217. 
 Pynchon r. Stearns, 57. 
 
 Quackenboss :. Clarke, 140, 143. 
 Quale t'. Hazel, 569. 
 Ouestess f. Morgan, 150. 
 Quimby r. Boyd. 574. 
 
 8uinby r. Higgins, 476. 
 uinby v. Manhattan Cloth, Etc., Co., 13, 
 16. 
 
 Quincy v. Cheeseman, 245. 
 Quinlan r. Boute, 134. 
 Qujnn t 1 . Anderson, 466. 
 Quinn i'. Brithaige, 246. 
 Ouinn r. Kinyon, 121. 
 Quinn r. Perham, 146. 
 Quinn r. Windmiller, 497. 
 Quint r. Little, 247. 
 
 Rabsuhl T'. Lack, 565. 
 Raconillet r. Sansevain, 260. 
 Radcliffe T. Rowley, 264. 
 RaHcliffe t: Scruggs, 505. 
 Radey r. McCurdy, 18. 
 Raeen v. Avery, 574. 
 Railey r. Milan, 301. 
 Railroad v. Schurmeier, 597. 
 
 xcviii 
 
 Railsback r. Lovejoy, 195. 
 
 Kuleigh Bank r. Moore, 260. 
 
 Raleigh v. Wells, 473, 493. 
 
 Raley v. County of Umantilla, 201. 
 
 Raley r. Simpson, 146. 
 
 Ralston v. Moore, 574. 
 
 Ralston v. Ralston, 86. 
 
 Rammelsberg 7'. Mitchell, 3SO. 
 
 Ramsdill v. Wentworth, 647. 
 
 kanalli f. Zeppetelli, 527. 
 
 Randall -. Elwell, 2. 
 
 Randall r. Hazleton, 278. 
 
 Randall r. Kreiger, 110. 
 
 Randall -. McLaughlin, 431. 
 
 Randall r. Phillipps, 176, 368. 
 
 Randall v. Randall, 373. 
 
 Randall r. Sanderson, 443. 
 
 Randall 7'. Silverthorn, 585. 
 
 Randolph r. Kinney, 626. 
 
 Randolph v. Randolph, 365, 640. 
 
 Randolph 7'. Middleton, 272. 
 
 Rands v. Kendall, 243. 
 
 Ramsdell 7-. Emory, 367. 
 
 Ramsdell v. Ramsdell, 298. 
 
 Rankin -c. Barcroft, 376. 
 
 Rankin v. Major, 274. 
 
 Rankin 7'. Mortimere, 234. 
 
 Rankin v. Rankin, 96. 
 
 Rankin 7>. Safford, 567. 
 
 Rankin r. Shaw, 126. 
 
 Rankin Baptist Church v. Edwards, 201. 
 
 Rannells v. Gerner, 97. 
 
 Rannells r. Gerner, 97. 
 
 Rannells r. Isgrigg, 86, 97. 
 
 Ransone 7 p . Frayser, 231. 
 
 Rapalye v. Rapalye, 288. 
 
 Rash 7'. Lewis, 406. 
 
 Ratcliff 7'. Belfort Iron Co., 157. 
 
 Ratcliff 7\ Ratcliff, 79. 
 
 Ratliff T. Davis, 274. 
 
 Ratliffe 7'. Marrs, 609. 
 
 Raume 7'. Chambers, 80. 
 
 Rausch 7\ Moore, 85. 
 
 Rawley 7'. Holland, 329. 
 
 Rawlins v. Buttel, 98, 105. 
 
 Rawson v. Fox, 494. 
 
 Rawson v. Uxbridge, 201, 627. 
 
 Rawstron r. Taylor, 445. 
 
 Ray v. Anderson, 219. 
 
 Ray v. Hallenbeck, 236, 260. 
 
 Ray v. Hill, 632. 
 
 Ray v. Lobdell, 285. 
 
 Ray v. Murdock, 532. 
 
 Ray v. Simmons, 373. 
 
 Ray v. Spears, 33, 34. 
 
 Ray v. Pauge, 99. 
 
 Ray v. Yarnell, 126. 
 
 Rayall's Admr. v. McKenzie, 380. 
 
 Raymond v. Bales, 236. 
 
 Raymond r. Holden, 512, 515. 
 
 Raymond v. Raymond, 512. 
 
 Raynham r. Wilmarth, 108. 
 
 Raynor T. Lee, 504. 
 
 Raynor r. Timerson, 510. 
 
 Raynor 7'. Wilson, 554. 
 
 Razor v. Dowan, 574. 
 
 Rea T. Copelin, 368. 
 
 Rea r. Rea, 96. 
 
 Read r. Allen, 495. 
 
 Read Hanks r. Folsom, 542. 
 
 Read v. Huff, 367.
 
 TABLE OP CASES CITED. 
 
 [References are to Sections.} 
 
 Read v. Robinson, 578. 
 
 Read v. Williams, 373. 
 
 Reade v. Livingston, 566. 
 
 Ready v. Kearsiey, 562. 
 
 Reardon v. Murphy, 205. 
 
 Reasoner v. Edmundson, 615. 
 
 Reaume v. Chambers, 85. 
 
 Recketts r. Louisville, etc., Ry. Co., 204. 
 
 Reckhow r. Schank, 162. 
 
 Rector v. Hartford Dep. Co., 139. 
 
 Rector v. \Vaugh, 177. 
 
 Redd v. Murry, 605. 
 
 Reddick r. Grcssman, 243. 
 
 Redding v. Lamb, 619. 
 
 Redfern v. Middleton, 51, 546. 
 
 Redfield v. Buck, 566. 
 
 Redfield v. Gleason, 190. 
 
 Redford v. Gibson, 217. 
 
 Redin v. Branhan, 253. 
 
 Reding r. Stone, 387. 
 
 Redmange v. Forster, 216. 
 
 Redman v. Sanders, 244. 
 
 Redmond v. Redmond, 118, 119. 
 
 Redwine , v. Brown, 614. 
 
 Reece v. Allen, 282. 
 
 Reed v. Beck, 131. 
 
 Reed v. Campbell, 132. 
 
 Reed v. Crocker, 469. 
 
 Reed v. Dickermann, 117, 118. 
 
 Reed v. Farr, 510. 
 
 Reed r. Gaillard, 230. 
 
 Reed v,. Lamar, 348. 
 
 Reed v. Marble, 250. 
 
 Reed v. Morrison, 87, 100. 
 
 Reed v. Reed, 163, 269. 
 
 Reed r. Siddell, 660. 
 
 Reed v. Underbill, 421. 
 
 Reed v. Ward, 149. 
 
 Reed v. Whitney, 87. 
 
 Reeder v. Barr, 521. 
 
 Reeder v. Craig, 514. 
 
 Reeder v. Purdy, 173. 
 
 Reese v. Smith, 514. 
 
 Reese v. Wallace, 368. 
 
 Reeve v. Long, 297, 391. 
 
 Reeves v. Scully, 253. 
 
 Reeves v. Slater, 562. 
 
 Reeves v. Tappan, 410. 
 
 Reformed Dutch Church v. Veeder, 345. 
 
 Relf v. Gist, 572. 
 
 Regan v. Williams, 25t, 285. 
 
 Rehoboth r. Hunt, 178. 
 
 Reickhoff v. Brecht, 368. 
 
 Reid f. Abernathy, 256, 577. 
 
 Reid r. Mullins, 281. 
 
 Reid v. Reid, 374. 
 
 Reid v. Shergold, 417. 
 
 Reifenstahl v. Osborne, 127. 
 
 Reiff v. Reiff, 58. 
 
 Reilly v. Maffor, 290. 
 
 Reinders r. Koppelman, 195, 307. 
 
 Reiners v. Young, 432. 
 
 Reinicker v. Smith, 593. 
 
 Reinsehl r. Shirk, 393. 
 
 Reinstein v. Daniels, 127. 
 
 Reise v. Enos, 438. 
 
 Reitenbaugh v. Ludwick, 229. 
 
 Reitz v. Reitr, 807, 368. . 
 
 Reliable Steam-Power Co. v. Solidarity 
 
 Watch Co., 161. 
 Remey v. Iowa Cen. Co., 291. 
 
 Remington v. Am. Bible Soc., 642. 
 
 Remington v. Lewis, 482. 
 
 Remington Paper Co. v. O' Dougherty, 
 
 264. 
 
 Ren r. Bulkeley, 405. 
 Reniston r. Adams, 640. 
 Rennert r. Shirk, 497. 
 Rennock v. Coe, 238. 
 Renond r. Daskam, 147. 
 Renzichausen v. Keyser, 341, 371. 
 Repp v. Repp, 217. 
 . Rerick v. Kern, 467. 
 Renff v. Coleman's Heirs, 202. 
 Revenek v. Ingram, 617. 
 Rex v. Collett, 165. 
 Rex v. Longnor, 575. 
 Reyburn v. Wallace, 56. 
 Reynard v. Spence, 86. 
 Reynolds v. Reynolds, 98, 633. 
 Reynolds v. Canal & Pkg. Co., 243, 246. 
 Reynolds -. Crispin, 204, 304. 
 Reynolds v. Darris, 530. 
 Reynolds r. Hennessey, 281. 
 Reynolds r. Lawton, 139. 
 Reynolds v. Pitts, 209. 
 Reynolds v. Tenant, 123. 
 Rhea v. Rhea, 126. 
 Rhett v. Jenkins, 186. 
 Rhim v. Ellen, 565. 
 Rhinehart v. Stevenson, 275. 
 Rhoades v. Canfield, 260. 
 Rhode v. Louthain, 569. 
 Rhoder v. Brockhage, 126. 
 Rhodes v. Buckland, 266. 
 Rhodes v. Gardner, 579. 
 Rhodes v. McCormick, 123. 
 Rhodes v. Otis, 407, 599. 
 Rhodes v. Shaw, 301. 
 Rhyne v. Guevard, 123, 157. 
 Riblett v. Davis, 276. 
 Ribordy v. Pellachoud, 447. 
 Rice r. Barnard, 185. 
 Rice v. Barrett, 399. 
 Rice v. Bird, 235. 
 Rice 7'. Brown, 131. 
 Rice v. McFarland, 261. 
 Rice r. Parkman, 524. 
 Rjce i'. Pennypacker, 367. 
 Rice 7'. Sanders, 253. 
 Rice v. Wacldill, 108, 118. 
 Rice Fisheries Co. r. Pac. Realty Co., 
 
 152. 
 
 Rich v. Bolten, 164. 
 Rich v. Brag, 195. 
 Rich v. Cockrell, 348. 
 Rich v. Doane, 231, 236. 
 Rich v. Johnson, 625. 
 Rich v. Zeilsdorf, 4. 
 Rjchard r. Bent, 616, 625. 
 Richard v. Liford, 59. 
 Richard v. McPherson, 217, 218. 
 Richard r. Talbird, 257. 
 Richard v. Williams, 429. 
 Richards v. Holmes, 272. 
 Richards r. McClelland, 558. 
 Richards r. Miller, 629. 
 Richards v. Orr, 132. 
 Richards v. Queens Proctor, 649. 
 Richards v. Richard,s, 186, 187. 
 RirhnHs r. Rose, 440. 
 Richards v. Shears, 125. 
 
 xcix
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Richards r. Thompson, 273. 
 
 Richardson r. Uaird, 644 
 
 Rioluidson f. Baker, 221. 
 
 Ric!i.ndson :. Bigelow. 606. 
 
 Kicliardson ;. Bprden, 13. 
 
 Richardson :. Cambridge, 592. 
 
 Richardson ;. Clements, 430. 
 
 Richardson :. Copeland, 15. 
 
 Richardson 7 . De Giverville, 70. 
 
 Kkli.-rd&on t. Dorr, 613. 
 
 Richardson t. Hildreth, 240. 
 
 Richardson . Hunt. 404. 
 
 Richnrdson f. Inglesby, 373. 
 
 RichauUon :. Landridge, 164. 
 
 Kk-haidi-on f. Palmer, 581. 
 
 Richardson f. Pond. 443. 
 
 Richardson ?. Skolfield, 87. 
 
 Richardson i: Tobey, 45u. 
 
 Richardson ;. Vt. Cent. R. R. Co., 448. 
 
 R;chardson f. Wallis. 246. 
 
 Richardson t. \Vheatland, 306, 321. 
 
 Richardson :. \Voodbury, 233. 
 
 Richardson -. Wyman, 97. 
 
 Richardson f. Young, 247. 
 
 Richcson !. Richeson. 583. 
 
 Richey ; Brown, 189. 
 
 Ri.hman r. Lippincott, 42. 
 
 Richmond Manuf. Co. i f . Atlantic De- 
 laine Co.. 444. 
 
 Richmond R. R. Co. r. Louisa R. R. Co., 
 45G. 
 
 Richter f. Richter, 207. 
 
 Rickett i Madeira, 254. 
 
 Ricketts t. Louisville, 404. 
 
 Ricks r. Pope, 34. 
 
 Ricks f. Pulliam, 613. 
 
 Rico Reduction, etc., Co. v. Musgrave, 
 190. 
 
 Riddell r. Riddell, 86. 
 
 Riddle -. Brown, 468. 
 
 Riddle 7. Cutter, 362. 
 
 Riddle r. Littlefield. 133, 606. 
 
 Rider r. Hulse, 84. 
 
 Ridei f. Kidder, 367. 
 
 Rider -. March. 186. 
 
 Ridgley r. Abbott Min. Co., 276. 
 
 Ridgley r. Stillwell, 164. 
 
 Ridgeway f. Hannum, 169. 
 
 Ridgway v. Masting, 97. 
 
 Ridpway r. McAlpine, 101. 
 
 Riccke 'r. Westenhoff. 126. 
 
 Riehl r. Evansville Foundling Ass'n, 368. 
 
 Rife r. Geyer. 322. 370. 
 
 Rifener r. Bowman, 554. 
 
 Ricden r. Vallier, 176. 
 
 Riccan r. Green, 556. 
 
 Riggin -. Love, 609. 
 
 RiRgs -: Fisk. 557. 
 
 RiRRS v. Fuller. 504. 
 
 RJRRS -. Girard, 504. 
 
 Ricgs t: Palmer. 639. 
 
 Riegs f. Sterling. 126. 
 
 Right f. Darby. 164. 
 
 Righter v. Forrester, 583. 
 
 Righter v. Winters, 615. 
 
 Rigler f. Cloud. 79. 
 
 Riker v. Darkey, 195. 
 
 Riley r. Pettis County, 153. 
 
 Uindge f. Baker, 450. 
 
 Rinehart v. Olivine, 160. 
 
 Rines v. Mansfield, 609. 
 
 C 
 
 Ring v. Billings, 606. 
 
 Ringgold i'. Bryan, 217. 
 
 Kingo t. Woodruff, 492, 497. 
 
 Ripka 7'. Sergeant, 295. 
 
 Ripley 7'. VVightman, 151. 
 
 Kipperdon 7'. Cozine, 219. 
 
 Rising r. Rising, 414. 
 
 Rising 7'. Stannard, M>::. 
 
 Ritch z'. Hanxhurst, 4Si>. 
 
 Ritger v. Parker, 275, 427. 
 
 Ritter r. Phillipps, 253. 
 
 Rivard v. Walker, 5C1, 577. 
 
 Rivin ^'. Watson, 461. 
 
 Roach i'. Dance, 299. 
 
 Roarty v. Mitchell, 278, 570. 
 
 Robb 7'. Brewer, 126. 
 
 Robb 7'. Washington & Jefferson College, 
 
 379, 631. 
 
 Robbins 7'. Eaton, 557. 
 Robbins r. Moore, 521. 
 Robbins Ex'r v. Robbins, 30. 
 Robers r. McCord, 443. 
 Roberson v. Tippih, 121. 
 Roberts v. Bourne, 582. 
 Roberts v. Cooper, 559. 
 Roberts v. Craft, 213. 
 Roberts v. Crofty, 213. 
 Roberts 7'. Dauphin Bank, 15. 
 Roberts v. Fleming, 269, 279. 
 Roberts v. Karr, 601. 
 Roberts v. Littlefield, 247, 498. 
 Roberts v. Morgan, 498. 
 Roberts 7'. Phillips, 633. 
 Roberts v. Robinson, 126. 
 Roberts 7'. Rose, 217. 
 Roberts 7'. Salisbury, 217. 
 Roberts v. Smith, 498. 
 Roberts v. Sutherlin, 243. 
 Roberts 7'. Ware, 367. 
 Roberts 7'. Welch, 247, 633. 
 Robertson v. Campbell, 246. 
 Robertson v. Morvell, 202. 
 Robertson v. Newman, 574. 
 Robertson 7'. Norris. 69, 278. 
 Robertson f. Stark, 236. 
 Robertson 7'. Tippie, 126. 
 Robertson f. Woodhouse, 578. 
 Robeson 7'. Dunn, 240. 
 Robie v. Flanders, 85, 101. 
 Robins r. Coryell, 632. 
 Robins v. Eaton, 557. 
 Robinson r. Adams, 404. 
 Robinson r. Bates, 97. 
 Robinson v. Bishop, 640. 
 Robinson 7'. Codman, 79, 86. 
 Robinson v. Coffin, 441. 
 Robinson v. Cropsy, 231. 
 Robinson v. Cullom, 279. 
 Robinson r. Deering, 152. 
 Robinson v. Douthit, 512. 
 Robinson v. Downing, 504. 
 Robinson v. Eagle, 187. 
 Robinson v. Edw. Clay R., 233. 
 Robinson v. Female Orphan Assy., 301. 
 Robinson v. Gould, 578. 
 Robinson v. Hall, 157. 
 Robinson 7'. Hardcastle. 414. 
 Robinson v. Kinne, 497. 
 Robinson v. Lakeman. 79. 
 Robinson r. Litton, 265. 
 Robinson v. McWhirter, 217.
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.] 
 
 Robinson ?. Miller, 115, 296. 
 
 Robinson f. Moore, 596. 
 
 Robinson r. Perry, 139. 
 
 Robinson v. Pett, 384. 
 
 Robinson v. Phillips, 497. 
 
 Robinson v. Russell, 265. 
 
 Robinson v. Ryan, 278. 
 
 Robinson v. Sampson, 257. 
 
 Robinson r. Shuler, 16. 
 
 Robinson t r . Sweet, 495. 
 
 Robinson r. Thrailkill, 430. 
 
 Robinson r. Urqhart, 257. 
 
 Robinson v. White, 597. 
 
 Robinson r. Williams, 217, 263. 
 
 Robinson v. Willoughby, 229, 585. 
 
 Robinson v. Wordman, 493. 
 
 Roby y. Calumett, 504. 
 
 Roby v. Newton, 62. 
 
 Roche v. Nason, 631, 637. 
 
 Rochester r. Rochester, 456. 
 
 Rockes v. Young, 596. 
 
 Rockhill 7'. Spraggs, 566. 
 
 Rockingham r. Peurice, 55. 
 
 Rockwell 7'. Baldwin, 595. 
 
 Rockwell f. Hobby, 215. 
 
 Rockwell 7'. Rockwell, 100. 
 
 Rockwell v. Servant, 247. 
 
 Rockwell r. Swift, 304. 
 
 Rodenfels ^. Schumann, 298. 
 
 Rodgers v. Rawlins, 522. 
 
 Rodgers v. Rodgers, 68. 
 
 Rodriguez r. Hayes, 250. 
 
 Rodwell v. Phillips, 563. 
 
 Roe v. Baldwere, 43, 298. 
 
 Roe v. Bedford, 321. 
 
 Roe v. Galliers, 140. 
 
 Roe v. Griffiths, 305. 
 
 Roe v. Popham, 329. . 
 
 Roe v. Redner, 447. 
 
 Roe r. Sales, 139. 
 
 Roe v. Strong, 2. 
 
 Roe v. Tranmarr, 567, 588. 
 
 Roe v. Vingut, 399, 640. 
 
 Roe r. York, 554. 
 
 Roebke v. Andrews, 498. 
 
 Roffey v. Henderson, 466. 
 
 Rogers r. Ashland Sav. Bank, 128. 
 
 Rogers f. Brokaw, 15. 
 
 Rogers r. Gary, 576, 577. 
 
 Rogers v. Cox, 5. 
 
 Rogers v. Eagle Fire Ins. Co., 545, 549. 
 
 Rogers r. Graham, 307. 
 
 Rogers r. Grazebrook, 244. 
 
 Rogers v. Grider, 183. 
 
 Rogers r. Humphreys, 245. 
 
 Rogers r. Hussey, 583. 
 
 Rogers Loc. Works v. Kelly, 361. 
 
 Rogers r. Lomax, 247. 
 
 Rogers v. Ludlow, 73. 
 
 Rogers r. Mayes, 126. 
 
 Rogers v. Miller, 186. 
 
 Rogers v. Myers, 290. 
 
 Rogers r. Portland & B. St. Ry., 509. 
 
 Rogers v. Portland Co., 510, 511. 
 
 Rogers r. Prattville, 15. 
 
 Rogers r. Ragland, 123. 
 
 Rogers r. Sawin, 433. 
 
 Roecrs r. Taylor, 448. 
 
 Rogers 7 1 . Tomkins, 569. 
 
 Rogers r. Traders' In. Co., 256. 
 
 Rogers r. Trust Co., 302. 
 
 Rogers v. Tyler, 659. 
 
 Rogers 7'. Walker, 556. 
 
 Rogers v. Woodbury, 9. 
 
 Rogers v. Woody, 97. 
 
 Rogerson r. Shepherd, 429, 439. 
 
 Rohn v. Harris, 195, 197. 
 
 Rohrer v. Stetman, 631. 
 
 Roland v. Coleman, 403. 
 
 Rollings 7'. Evans, 122. 
 
 Rollins v. O'Farrell, 127. 
 
 Rollins v. Riley, 207. 
 
 Roman v. Taylor, 151. 
 
 Rona v. Meier, 298, 408. 
 
 Rood i'. Chapin, 585. 
 
 Rood v. Walson, 408. 
 
 Roof r. Stafford, 556. 
 
 Roosevelt v. Fulton, 471. 
 
 Roosevelt r. Gardiner, 562. 
 
 Root r. Bancroft, 286. 
 
 Root v. Wheeler, 278. 
 
 Roper v. Halifax, 405. ' 
 
 Roper v. McCook, 217, 221. 
 
 Ropeson v. Pittinger, 443. 
 
 Ropps 7'. Barker, 15. 
 
 Rose v. Drayton, 649. 
 
 Rose v. Hatch, 349, 373. 
 
 Rose r. Hayden, 368. 
 
 Rose 7-. Porter, 373. 
 
 Rose -'. Ware, 558. 
 
 Rosearrick r. Barton, 225. 
 
 Roseboom r. Roseboom, 40. 
 
 Roseboom r. Van Vechton, 46. 
 
 Roseburg's Ex'rs r. Sterling's Heirs, 558. 
 
 Rosenblatt r. Perkins, 134. 
 
 Ross v. Adams, 322, 388. 
 
 Ross v. Barclay. 410. 
 
 Ross v. Campbell, 577. 
 
 Ross v. Cook, 563. 
 
 Ross v. Drake, 301. 
 
 Ross v. Dysart, 144, 618. 
 
 Ross v. Garrison. 163. 
 
 Ross v. Heintzen, 219. 
 
 Ross v. Hellyer, 127. 
 
 Ross v. Roberts, 376. 
 
 Ross 7 1 . Swaringer, 160. 
 
 Ross r. Tremain, 206. 
 
 Ross v. Turner, 614. 
 
 Ross v. Worthington, 573. 
 
 Rosser t: Franklin, 632, 633. 
 
 Rossetter r. Simmons, 575. 
 
 Roth r. Adams, 143, 152. 
 
 Roth Tool Co. 7'. Champ Spring Co., 163, 
 
 168. 
 
 Rothschild 7'. Lumber Co., 255. 
 Rothwell v. Dewees, 187. 
 Roulhac T. Jones, 246. 
 Roundtree 7'. Dennard, 122. 
 Roundtree v. Roundtree, 301. 
 Roundtree v. Lane, 193, 511. 
 Routledge 7'. Dorvil. 312. 
 Rowan 7'. Sharpe's Rifle Co., 263, 269. 
 Rowbotham v. Wilson, 448. 
 Rowe 7'. Beckett, 567. 
 Rowe r. Granite Brdg. Corp., 599. 
 Rowe 7'. Hamilton, 97. 
 Rowe 7'. Heath, 622. 
 Rowe 7'. Johnson, 111. 
 Rowe T. Williams. 148. 
 Rowe r. Wood. 24fl. 
 Rowell r. Klein. 51). 
 Rowland 7'. Anderson, 9. 
 
 ci
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Rowland r. Murphy, 180. 
 
 Rowland t. Rowland, 2U4, 304. 
 
 Rowland r. Warren, 45. 
 
 Rowlands . . Voechting, 160. 
 
 Rowley v. Brown, 278. 
 
 Rowton f. Rowton, 87. 
 
 Roxbury f. Stoddard, -'. 
 
 Roy t. Clark, 125. 
 
 Roy f. Garnett, o'.'l. 
 
 Royal :. Aultman Taylor Co., 207. 
 
 Royall f. Lisle, 495. 
 
 Royce :. Guggenheim, 153. 
 
 Royer f. Ake, 145. 
 
 Royston t. Royston, 197. 
 
 fcubcy . Barnett, 401. 
 
 Rubey :. Huntsman, 532. 
 
 Rucker ;. Lamdin, 634. 
 
 Ruckman r. Astor, 267. 
 
 Ruckman ;. Cutwater, 16. 
 
 Ruckman i: Ruckman, 577. 
 
 Rucks :. Taylor, 273. 
 
 Rudd 7. Peters, 74. 
 
 Rudd f. Van Der Hagen, 370. 
 
 Rudisiles r. Rodes, 649. 
 
 Kuttati f. Societe des Mines, 468. 
 
 Ruffin v. Overly, 491, 495. 
 
 Ruffin :. Womack, 231. 
 
 Rugglcs f. Barton, 250. 
 
 Ruggles r. Clare, 201. 
 
 Ruggles f. Lawson, 57S. 
 
 Ruggles f. Lesure, 465. 
 
 Kuggles -. Williams, 233. 
 
 Rule r. Maupin, 637. 
 
 Rumfelt f. Clements, 558. 
 
 Rumpk f. Gerkins, 242. 
 
 Rundell v. Lakey, 617. 
 
 Kunke ?. Hanna, 96. 
 
 Kunkle :. Gates, 645. 
 
 Runnels i-. Webster, .616. 
 
 Runyan v. Mersereau, 226. 
 
 Rupp f. Eberly, 388. 
 
 Russ v. Perry, 616. 
 
 Russ v. Steele, 618. 
 
 Russell t. Allard, 157. 
 
 Russell v. Allen, 245. 
 
 Russell 7 . Blake, 269. 
 
 Russell r. Branham, 575. 
 
 Russell 7. Clark's Exrs., 368. 
 
 Russell r. Davis, 497. 
 
 Russell -. Dodson, 217. 
 
 Russell r. Erwin, 157. 
 
 Russell v. Eubanks, 408. 
 
 Russell r. Fabyan, 152. 
 
 Russell v. Falls, 633. 
 
 Russell v. Gunn, 275. 
 
 Russell !. Hubbard, 467. 
 
 Russell r. Lewis, 380. 
 
 Russell 7'. Maloney, 490, 497. 
 
 Russell v. McCartney, 130. 
 
 Russell f. Mixer, 257. 
 
 Russell r. Richards, 9. 
 
 Russell f. Rumscy, 524. 
 
 Russell j'. Russell, 213, 367. 
 
 Russell -.-. Shields, 259. 
 
 Russell 7'. Southard, 228, 233. 
 
 Russell v. State Nat. Bank, 52. 
 
 Russell 7'. Switzer, 373, 374. 
 
 Russell r. Waite, 229. 
 
 Rutherford r. Carr. 579. 
 
 r '-therford 7-. Greene. 30. 
 
 Rutherford v. Rutherford, 633. 
 
 cii 
 
 Rutherford 7'. Williams, 278, 
 Rutland 7'. Brister, 219. 
 Ruyter 7'. Reid, 273. 
 Ryan r. Allen, 321, 640. 
 Ryan f. Brown, 698. 
 Ryan 7. Dox, 365, 368. 
 Ryan r. McGehu, 247. 
 Ryan ; . Newcomb, 255. 
 Ryan r. United States, 511. 
 Ryder t 1 . Innerarity, 530. 
 Rycrson v. Quackenbush, 149. 
 
 S 
 
 Sackett v. Sackett, 68. 
 
 Sadler '. Hubphines, 480. 
 
 Sadler v. Pratt, 414. 
 
 Safford 7'. Safford, 291, 296. 
 
 Sage i'. Gloversville, 300. 
 
 Sailer v. Sailer, 191. 
 
 Saines 7'. Allen, 279. 
 
 Saint 7 1 . Cornwall, 242. 
 
 St. John 7'. Benedict, 329. 
 
 St. John r. Conger, 584. 
 
 St. John v. Palmer, 153. 
 
 St. Louis v. Bissell, 6;>4. 
 
 St. Louis, etc., Ry. Co. -.'. Prather, 186. 
 
 St. Louis, etc., Ry. Co. 7'. Ramsey, 591. 
 
 St. Louis, etc., R. R. v. Schneider, 444. 
 
 St. Louis Hospital z: Williams, 682. 
 
 St. Louis I. M. & C. R. R. Co. v. Rud- 
 
 delf, 578. 
 
 St. Louis Land Ass'n v. Fueller, 33. 
 St. Louis Nat. Stock Yds. v. Wiggins 
 
 Ferry, 407. 
 
 St. Pat. Catholic Ch. v. Daly, 37. 
 St. Paul v. Viscount Dudley & Ward, 
 
 242. 
 St. Phillips Church r. Zion Presb. Church, 
 
 148. 
 
 Sale 7'. Thornsberry, 373. 
 Salem 7-. Edgerly, 283. 
 Salis 7'. Davis, 170. 
 Salisbury r. G. N. Ry. Co., 601. 
 Salisbury 7'. Phillips, 236. 
 Salisbury 7-. Shirley, 139, 143. 
 Salley -. Robinson, 17. 
 Salmon -. Claggett, LMi."). 
 Salmon - 1 . Hoffman, 217. 
 Salmon '. Smith, 131. 
 Salmon f. Vallejo, 614. 
 Saltmarsh v. Smith, 85. 
 Samrnes v. Payne, 99. 
 Sammis r. Sammis, 86. 
 Sample 7'. Sample, 195. 
 Sampson 7'. Easterly, 147. 
 Sampson 7'. Grimes, 149. 
 Sampson "'. Haddinot, 444, 447. 
 Samuel 7'. Borrowscale, 495, 581. 
 Samuels "'. Armstrong, 444. 
 Sanborn 7'. Clough, 590. 
 Sanborn ?. Hoyt, 608. 
 Sanborn r. Magee, 233. 
 Sandback r. Quigley, 111. 
 Sanderlin r. Baxter, 432. 
 Sanders v. Cassaday, 250. 
 Sanders 7'. Logue, 497. 
 Sanders 7-. McAflFee, 218. 
 Sanders 7'. Partridge, 139. 
 Sanders 7'. Reed, 265. 
 Sanderson v. Price, 243.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Sanderson v. White, 611. 
 
 Sand ford v. Blake, 301. 
 
 Sands v. Beardsley, 581. 
 
 Sands v. Hughes, 139. 
 
 Sandwith v. De Silver, 626. 
 
 Sane v. Tyler, 185. 
 
 San ford v. Harney, 168. 
 
 Sanford r. Kane, 255, 277. 
 
 Sanford r. McLean, 85, 99. 
 
 Sanford r. Travers, 623. 
 
 Sanford r. Vanarsdale, 242. 
 
 San Fiuncisco v. Fulde, 504. 
 
 Sanlet r. Shepherd, 487. 
 
 Sansberry v. Sims, 123. 
 
 Santee r. Keefe, 253, 285. 
 
 Sargent f. Rallard, 429. 
 
 Sargent v. Howe, 2s3. 
 
 Sargent v. Parsons, 191. 
 
 Sargent v. Smith, 172. 
 
 Sargent r. Sturm, 583. 
 
 Sarles r. Sarles, 57. 
 
 Sartill v. Robeson, 79. 
 
 Sasser r. Sasser, 367. 
 
 Satterfield r. John, 376. 
 
 Satterwhite v. Rosser, 493. 
 
 Saunders v. Edwards, 362. 
 
 Saunders v. Evans, 416. 
 
 Saunders v. Farmer, 498. 
 
 Saunders v. Frost, 246. 
 
 Saunders v. Newman, 435. 
 
 Saunders v. Partridge, 139. 
 
 Saunders i: Saunders, 98. 
 
 Saunders v. Schmadgle, 378. 
 
 Saunderson v. Bradwell, 373. 
 
 Sauter v. Muller, 894. 
 
 Savage v. Dooley, 87. 
 
 Savage v. Hall. 242, 258. 
 
 Savile v. Blacket, 405. 
 
 Saville v. Saville, 54. 
 
 Sawyer v. Kendall, 501. 
 
 Sawyer v. McGillicuddy, 146. 
 
 Sawyer v. Peters, 518. 
 
 Sawyers v. Baker, 278. 
 
 Sawyers v. Cater, 199. 
 
 Saxton v. Hunt, 496. 
 
 Scales v. Mande, 373. 
 
 Scanlan v. Cobb, 556. 
 
 Scanlan v. Turner, 97. 
 
 Scanlan T. Wright, 581. 
 
 Scarborough r. Borman, 73. 
 
 Scattcrwood v. Edge, 308. 
 
 Schaffer v. Kellell, 642. 
 
 Schaffer v. State Bk., 435. 
 
 Schallard v. Eel River 'Co., 272. 
 
 Schanerrner v. Lissaner, 257. 
 
 Schebrcde v. State Land Board, 521. 
 
 Schedda v. Sawyer, 521. 
 
 Scheibe v. Kennedy, 272. 
 
 Scheifele v. Schmitz, 13. 
 
 Schell v. Simon, 160. 
 
 Schell v. Stein, 581. 
 
 Schenck v, Conover, 272. 
 
 Schenck v. Ellingwood, 417. 
 
 Schenck v. Evoy, 593. 
 
 Scheppleman v. Fuerth. 253. 
 
 Schermerhorn v. Mahaffie, 126. 
 
 Schermerhorn v. Myers, 204. 
 
 Schettler r. Smith, 399. 
 
 Schfuher v. Ballow. 127. 
 
 Schiefelin v. Carpenter, 156. 
 
 Schiefferstein v, Allison, 505. 
 
 Schilling v. Holmes, 152. 
 
 Schlaefer v. Corson, 368. 
 
 Schlawig v. Fleckenstein, 266. 
 
 Schlemmer -v. Schlemmer, 76. 
 
 Schlencker v. Moxsy, 623. 
 
 Schlessenger v. Mallard, 375, 498. 
 
 Schley v. Fryer, 253. 
 
 Schlicher v, Keleer, 577. 
 
 Schmidt v. Hoyt, 260. 
 
 Schmitt v. Giovanari, 567. 
 
 Schmitt v. Willis, 90. 
 
 Schnebly r. Ragan, 217. 
 
 Schneider v. Koesler, 647. 
 
 Schneider v. Lord, 134. 
 
 Schneider r. Mo. Pac. R. R. Co., 445. 
 
 Schneider v. Reed, 233. 
 
 Schneider v. Setters, 561. 
 
 Schneiner v. Smith, 204. 
 
 Schnell v. Stein, 584. 
 
 Schuyler v. Smith, 170. 
 
 Schofield r. Homestead Co., 614. 
 
 Schofield r. Walker, 637. 
 
 Scholl v. Olmstead, 410. 
 
 Scholle v. Scholle, 368. 
 
 School Committee of Prov., etc., v. Kels- 
 
 lar, 575. 
 
 School District v. Benson, 507. 
 School Dist. v. Lynch, 495. 
 Schooley v. Romain, 272. 
 Schoppel v. Daly, 161. 
 Schrecongost v. West, 562. 
 J-chroeder r. Bohle, 642. 
 S:liroeder v. Gurney, 583. 
 Shubert v. Eastman Realty Co., 205. 
 Schult v. Moll, 80, 80. 
 S:hultz v. Meade, 276. 
 Schumacher r. Schmidt, 644. 
 Fchutnmcker v. Reel, 641. 
 Sc'nutt v. Meth. Epis. Missionary Soc., 
 
 f.53. 
 
 S-huylkill Co. v. Thoburn, 239. 
 Schuylkill, etc., R. R. v. Schmoele, 144. 
 Schwartz v. Sears, 278. 
 Schwoerer v. Connolly, 148. 
 Scituate v. Hanover, 373. 
 Scofield v. Olcott, 301. 
 Scott v. Ashlin, 106. 
 Scott 7'. Bentel, 432. 
 Scott v. Cheatbam. 429. 
 Scott v. Elkins, 493. 
 Scott v. Fields, 236. 
 Scott v. Freeland, 279. 
 Scott v. Frink, 254. 
 Scott v. Guernsey, 84, 190. 
 Scott v. Hancock, 104. 
 Scott v. Henry, 231. 
 Scott v. Lunt, 147, 460. 
 Scott r. Magloughlin, 253. 
 Scott v. McFarland, 247. 
 Scott v. Purcell, 558. 
 Scott v. Rand, 376. 
 Scott v. Scarborough, 372. 
 Scott v. Slaughter, 139. 
 Scott v. Turner, 251. 
 Scott r. Wharton, 265. 
 Scott v. Willis, 168. 
 Scranton v. Phillips, 448. 
 Scrivner T. Dietz, 242. 
 Scrivner r. Smith, 618. 
 Scruggs v. Brackin, 512. 
 Scrugham v. Wood, 677. 
 
 ciii
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.] 
 
 Scull r. Preiden, 592. 
 
 Scull :. Reeves, 373, 377. 
 
 Seals r. Pierce, 543, 631. 
 
 Siaung r. lienton, 853. 
 
 Sears r. Boody, G19. 
 
 Sears :. Dixon, 231. 
 
 Sears t. Russell, 30, 898. 
 
 Seat . . Knight, -",'1. 
 
 Sealon f. Jamison, 113. 
 
 Seaton r. Troy ford, 72. 
 
 Scavcr . Uurant, 24G. 
 
 Seaver f. Phclps, 5.~6. 
 
 Scavcs f. Fitzgerald, 312. 
 
 Seaward r. \Villock, 304. 
 
 Seaweight ?. Parnier, 247. 
 
 Second Nat. Hank f. Merrill Co., 18. 
 
 Secor r. Pcstana, 167. 
 
 Security Co. f. Uardenburgh, 301, 308. 
 
 Sedgewick 7'. Hollenbcck, 015. 
 
 Sedgwick v. Laflin, 277, 418. 
 
 Sedman f. Sanders, 243. 
 
 See r. Browder, 307. 
 
 Seegar :. Pettit, 16. 
 
 Seemuller f. Thornton, 494. 
 
 Schorn ?. McWhirter, 221. 
 
 Seibel f. Purchase, 220. 
 
 Seiberling r. Miller, 13. 
 
 Seibcrt r. Burton, 397. 
 
 Seibcrt r. Todd, 87. 
 
 Seiders f. Giles, 195, 299. 
 
 Seitz r. People's Sav. Bk., 595. 
 
 Selby v. Alston, 379. 
 
 Selden r. Del. & Hud. Canal Co., 465. 
 
 Selden f. Vermilya, 371. 
 
 Sellers f. Stalcup, 231. 
 
 Sellman r. Bowen, 113. 
 
 Sells r. Delgado, 410. 
 
 Scmmes r. Wheatley, 123. 
 
 Semple v. Bird, 260. 
 
 Semple r. Burd, 217. 
 
 Sennett 7*. Bucher, 131. 
 
 Sentner v. Tees, 445. 
 
 Senter 7'. Turner, 585. 
 
 Scrrin v. Grefe, 591. 
 
 Serry v. Curry, 85, 114. 
 
 Seton v. Slade, 234. 
 
 Settembro r. Putnam, 368. 
 
 Severance v. Griffitt, 250. 
 
 Sexton 7\ Chicago Storage Co., 139. 
 
 Sexton 7 - . Wheaton, 566. 
 
 Seymour T. Courtney, 608. 
 
 Seymour r. Darrow, 236. 
 
 Seymour r. Davis, 255. 
 
 Seymour r. Freer, 498. 
 
 Shackleford r. Bailey, 593. 
 
 Shadden -. Hembree, 301, 392. 
 
 Shaddinger r. Fisher, 83. 
 
 Shader r. McCormick, 4. 
 
 Shaeffer r. Chambers, 246. 
 
 Shaeffer r. Klee, 371. 
 
 Shafer r. Wilson, 448. 
 
 Shaffer r. Corbett, 634. 
 
 Shaffer r. Hahn, 125. 
 
 Shaffer r. McCloskey, 242. 
 
 Shaffer v. State Bank, 435. 
 
 Shall r. Ciscoe, 217. 
 
 Shall r. Stagg, 219. 
 
 Shamn r. Meyer, 253. 
 
 Shanahan :. Shanahan. 172. 
 
 Sh-ne -.-. M-\ei11. 117. 
 
 Shanee Co ; Com. r. Topeka Equip. Co., 2. 
 
 civ 
 
 Shanks :. Lucas, 521. 
 
 Shanks r. Mills, 301. 
 
 Shannan r. Hay, 278. 
 
 Shannon i 1 . Bradstreet, 417. 
 
 Shannon r. Burr, 139. 
 
 Shapleigh f. Pilsbury, 543. 
 
 Shapley v. Diehl, 321. 
 
 Sharkey v. Sharkey, 229. 
 
 Sharon Iron Co. v. City of Erie, 208, 627. 
 
 Sharp v. Brandon, 494. 
 
 Sharp v. Pettit, 112. 
 
 Sharp v. Wallace, 650. 
 
 Sharpe v. Goodwin, 368. 
 
 Sharpe v. Kelly, 157, 163. 
 
 Sharpe f. Scarborough, 273. 
 
 Sharply v. Jones, 85. 
 
 Sharpsteen "'. Tillon, 407. 
 
 Shattuck v. Bascom, 233. 
 
 Shaumberg v. Wright, 554. 
 
 Shaver r. McCarthy, 637. 
 
 Shaw f. Beebe, 515. 
 
 Shaw -'. Barksdale, 238. 
 
 Shaw r. Boyd, 117. 
 
 Shaw r. Breeze, 473. 
 
 Shaw -. English, 385, 386. 
 
 Shaw v. Farnsworth, 136. 
 
 Shaw v. Hayward, 579. 
 
 Shaw "'. Hearsey, 181. 
 
 Shaw v. Hill, 128. 
 
 Shaw f. Hoadley, 243, 281. 
 
 Shaw v. Loud, 562. 
 
 Shaw r. Norfolk, 272. 
 
 Shaw r. Partridge, 69. 
 
 Shaw v. Poor, 581. 
 
 S'law r. Read, 367. 
 
 Shaw v. Russ, 97. 
 
 S'haw v. Shaw, 367. 
 
 Shaw v. Spencer, 366. 
 
 '"'law v. Weigh, 322, 371. 
 
 Shawe r. Cunliffe, 388. 
 
 Shea -. Ollovue, 441. 
 
 Shea v. Tucker, 367. 
 
 Slieaffe v. O'Neil, 108. 
 
 Shealey v. Wammock, 37. 
 
 Shearer r. Ranger, 617. 
 
 Shearer v. Shearer, 185. 
 
 Shearer v. Winston, 194. 
 
 Sheckell v. Hopkins, 235. 
 
 Sheddy T. Gervan, 257. 
 
 Sheeburn v. Jones, 59. 
 
 Sheehan v. Allen, 195. 
 
 Sheer 7-. Fisher, 146. 
 
 Sheets v. Grubb, 642. 
 
 Sheets 7-. Selden, 143. 
 
 Sheffield v. Levering, 479. 
 
 Sheffield v. Orrery, 313. 
 
 Shehan v. Barnett, 528. 
 
 Shelby 7-. Shelby, 471. 
 
 Shelden v. Erskine, 576. 
 
 Sheldon v. Hofnaple, 94. 
 
 Sheldon T. Patterson, 273. 
 
 Shell v. Stein, 259. 
 
 Shelley 7-. Wright, 512. 
 
 Shelton T. Armor, 572. 
 
 Shelton 7'. Aultman Taylor Co., 128, 674. 
 
 Shelton 7'. Carroll, 103. 
 
 Shelton r. Codman, 147. 
 
 Shelton v. Hall-rk, r>n. 
 
 Shelton r. WiNon. 178. 188. 
 
 Shepard r. Adim*. 285. 
 
 Shepard 7'. Manhattan Ry. Co., 85.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Shepard v. Spaulding, 156. 
 
 Shepard z'. Taylor, 478. 
 
 Shepard's Heirs v. Sliepard's Estate, G40. 
 
 Shephard z: Shephard. 399. 
 
 Shepherd z: Ingram, 388. 
 
 Shepherd v. Jennigan, 593. 
 
 Shepherd v. Little, 329. 
 
 Shepherd v. May, 253. 
 
 Shepherd v. McEvers, 373, 377. 
 
 Shepherd z: Pepper, 276. 
 
 Sheppard r. Comm'rs of Ross Co., 530. 
 
 Sheppard v. Murdock, 247. 
 
 Shcppard f. Pratt, 247. 
 
 Slieratz v. Nicodcnuss, 219. 
 
 Sheridan r. Forsee, 161. 
 
 Sheridan v. Welch, 247. 
 
 Sherman v. Abbott, 242. 
 
 Sherman v. Champlain Transp. Co., 158. 
 
 Sherman r. Dodge, 361. 
 
 Sherman v. Kane, 498, 504. 
 
 Sherman v. McKeon, 601. 
 
 Sherman z: Williams, 144, 153. 
 
 Shcrrcd z: Cisco, 450. 
 
 Sherrer v. Harris, 233. 
 
 Sherwood -. Barlow, 547. 
 
 Sherwood v. Saxton, 282. 
 
 Shield z: Batts, 85. 
 
 Shields v. Lozear, 157, 254. 
 
 Shields v. Riopelle, 276. 
 
 S'lields z: Roberts, 497. 
 
 Shields v. Stark, 190. 
 
 Shiell v. Sloan, 85. 
 
 Shin v. Fredericks, 242, 258. 
 
 Shine r. Wilcox, 62. 
 
 Sliinn r. Shinn, 181. 
 
 Shipley -. Fox, 242, 257. 
 
 Shipley r. Institute, 194. 
 
 Shipley v. Smith, 74. 
 
 Shi:>man ". Horton, 556, 557. 
 
 Shipman r. Mitchell, 164. 
 
 Shipman r. Shipman, 198. 
 
 Shippen's Heirs r. Clapp, 407. 
 
 Shirkey r. Hanna, 274. 
 
 Shirley r. Ayres, 578. 
 
 Shirley z: Clark, 31. 
 
 Shirley r. Fearne, 573. 
 
 Shirley r. Shirley, 105, 348. 
 
 Shirley r. Sugar Ref. Co., 217. 
 
 Shirras r. Craig, 236, 605. 
 
 Shirtz . Shirtz, 112. 
 
 Shirtz v. Dieffenback, 215. 
 
 Shively v. Jones, 273. 
 
 Shivers r. Simmons, 97. 
 
 Shoemaker r. Smith, 236, 367. 
 
 Shoemaker v. Walker, 86, 87. 
 
 Shoenberger v. Hackman, 579. 
 
 Shoenberger r. Zook, 576. 
 
 Shoot v. Galbreath, 100, 119. 
 
 Shore r. Wilson, 590. 
 
 SHoree r. Doherty, 236. 
 
 Short r. Currier, 509. 
 
 Short r. Fogle, 260. 
 
 Shortall r. Hinckley, 559. 
 
 Shorter r. Frazer, 218. 
 
 ShortriHge r. Catlett, 572. 
 
 Shotwell v. Harrison, 582. 
 
 Shotwell v. Smith. 245. 
 
 Shrunk r. Schuykill Co., 599. 
 
 SVyock r. Waggoner, 583. 
 
 Shubert r. Standley, 235. 
 
 Shuffleton v. Nelson, 604. 
 
 Shulenberg -. Harriman, 207. 
 Shuler v. Bonander, 267. 
 Shults v. Moore, 581. 
 Shumway r. Collins, 154. 
 Shurtz y. Thomas, 100. 
 Shute v. Grimes, 243. 
 Sibley v. Holden, 601. 
 Sicard v. Davis, 493, 571. 
 Siddons z: Cockrell, 204, 301. 
 Sidway z-. Sidway, 105. 
 Sidwell v. Wheaton, 253. 
 Sieger v. Sieger, 191. 
 Siemon z: Schurch, 367, 583. 
 Sigourney v. Eaton, 179. 
 Silkie z>. Marsh, 42. 
 Sill z>. Sill, 85. 
 Sillers i'. Lester, 238. 
 Sillibridge v. Adie, 397. 
 Silloway r. Brown, 186. 
 Silsby v. Adler, 166. 
 Silsby v. Bullock, 637. 
 Silsby v. Sawyer, 640. 
 Silsby r. Smith, 266. 
 Silva v. Campbell, 208. 
 Silva z'. Rankin, 5. 
 Silva z'. Wimpenny, 498. 
 Silvers v. Carary, 301. 
 Sim v. Everhardt, 557. 
 Simers z: Sailers, 1^>7. 
 Simkin z 1 . Ashhurst, 170. 
 Simme's Heirs r. Simmes, 195. 
 Simmoncls z: Simmonds, 397. 
 Simmons r. Coborme, 392. 
 Simmons z: Havens, 574. 
 Simmons r. Johnson, 605. 
 Simmons r. Simmons, 577. 
 Simms i 1 . Harvey, 553. 
 Simons z-. Detroit Drill Co., 
 Simons z: Seward, 146, 151. 
 Simonton r. Gray, 87, 242. 
 Simpson z: Ammons, 177. 
 Simpson z: Bowden, 295. 
 Simpson v. Cherry, 304. 
 Simpson z: French, 298. 
 Simpson v. McAllister. 217, 
 Simpson z'. Morehead, 157. 
 Simpson z'. Mundee, 217, 572. 
 Simpson z'. Reed, 45. 
 
 163. 
 
 218. 
 
 ms z'. onger, . 
 Sims z: Cooper, 158. 
 Sims v. Hammond, 584. 
 Sims v. Smith, 557. 
 Sims z'. Trome, 521. 
 Sinclair v. Armitage, 238. 
 Sinclair v. Jackson, 380. 
 Sine v. Fox, 620. 
 Singer Mfg. Co. v. Rook, 97, 5 
 Singer Mfg. Co. r. Shull, 260. 
 Singleton r. Huff, 121. 
 Singleton z<. Singleton, 104. 
 Sinton v. Boyd, 301. 322. 
 Sire r. Wightman, 272. 
 Siter -v. McClanachan, 262. 
 Skaggs z'. Nelson, 219. 
 Skinner v. Chadwell, 126. 
 Skinner v. Chapman, 258. 
 Skinner v. Fulton, 474. 
 
 cv 
 
 574.
 
 TABLE OF CASES CITED. 
 
 [References are to /Sections.] 
 
 Skinner r. Hale, 242. 
 
 Skinner r. Mann, 321. 
 
 Skinner t. Miller. 283. 
 
 Skinner r. Wilder, 8. 
 
 Skinner -. Williams, 505. 
 
 Skipper '" Stokes, 238. 
 
 Skipwitb'l l\t- f. Cunninghan, 373. 
 
 Skul f. Sprakcr. 258. 
 
 Slate f. Schwin, 005. 
 
 Slater l: Dangerficld, 322. 
 
 Slater t. Rawson, 612, 624. 
 
 Slator t . Trimble, 556. 
 
 Slattery f. Keefe, 125. 
 
 Slattcry r. Schwannecke, 580. 
 
 Slaughter T. Coke Co., 139. 
 
 Slaughter f. Foust, 273. 
 
 Slec i. Manhattcn Co., 238, 277. 
 
 Slice i. Derrick, 193, 495. 
 
 Sluan f. Campbell, 219. 
 
 Sloan ; . McConahy, 34U. 
 
 Sloan f. Whitman, 1U9. 
 
 Sloane :. Lucas, 273. 
 
 Slocum r. Marshall, 373. 
 
 Slocum f. Seymour, 563. 
 
 Slowey r. McMurray, 231. 
 
 Small f. Field, 373. 
 
 Small r. Kakestrow, 522. 
 
 Small :-. Stagg, 217. 
 
 Smalley r. Isaacson, 195. 
 
 Smallman f. Powell, 475. 
 
 Smart T'. Morton, 448. 
 
 Smiley r. Van Winkle, 155. 
 
 Smiley r. Wright, 87, 100. 
 
 Smith f. Addleman, 105. 
 
 Smith f. Allen, 184. 
 
 Smith r. Ankrim, 151. 
 
 Smith r. Baldwin, 118. 
 
 Smith f. Barber, 146. 
 
 Smith f. Barker, 462. 
 
 Smith r. Barrie, 214. 
 
 Smith v. Bartlett, 598. 
 
 Smith r. Bell, 52. 
 
 Smith v. Black, 282. 
 
 Smith r. Blanpied, 432. 
 
 Smith r. Bortley, 599. 
 
 Smith 7'. Bowers, 417. 
 
 Smith f. Brannen, 207. 
 
 Smith -. Brinker, 139. 
 
 Smith r. Brown, 480, 590. 
 
 Smith . Bunton, 558. 
 
 Smith -. Burtis, 491, 492. 
 
 Smith f. Butler, 219. 
 
 Smith f. Bynum, 256. 
 
 Smith f. Chapin, 504. 
 
 Smith v. Chapman, 321. 
 
 Smith i'. Chopple, 66. 
 
 Smith f. Clyfford, 317. 
 
 Smith r. Codron, 633. 
 
 Smith 7'. Cole, 193. 
 
 Smith f. Columbia Ins. Co., 248. 
 
 Smith 7 1 . Compton, 622. 
 
 Smith f. Davis, 273. 
 
 Smith r. Estell, 121. 
 
 Smith r. Eustis, 347. 
 
 Smith r. Evans, 556. 
 
 Smith f. Finger, 522. 
 
 Smith r. Follansbee, 68. 
 
 Smith r. Ford, 373. 
 
 Smith 7-. Fox's Admr., 640. 
 
 Smith T. Frederick, 548. 
 
 Smith r. Frost, 388. 
 
 cvi 
 
 Smith v. Johns, 243. 
 smith i'. Johnson, 563. 
 smith 7'. Kelly, 254. 
 
 Smiley 7>. Gambill, 645. 
 
 Smith v. Gibson, 580. 
 
 Smith v. Gore, 126. 
 
 Smith f. Goulding, 466. 
 
 Smith v. Greaves, 590. 
 
 Smith t r . Green, 590. 
 
 Smith f. Greer, 31. 
 
 Smith 7'. Handy, 97. 
 
 Smith v. Havens, 041. 
 
 Smith 7-. Holloway, 434. 
 
 Smith 7'. Hosmer, 493. 
 
 Smith 7'. Howdon, 601. 
 
 Smith 7-. Howell, 97. 
 
 Smith T. Mutton, 126. 
 
 Smith r. Jackson, 184, 495. 
 
 Smith r. Jewett, 57. 
 
 Smith 
 
 Sn 
 
 Sr 
 
 Smith 7'. Kendrick, 443, 445. 
 
 Smith v. Kerr, 126. 
 
 Smith v. King, 498. 
 
 Smith r. Lamb, 220. 
 
 Smith 7'. Langwald, 447. 
 
 Smith T.'. Littlefield, 170, 172. 
 
 Smith 7\ Manning, 253. 
 
 Smith i'. Mapleback, 139. 
 
 Smith 7'. Mathews, 374. 
 
 Smith v. Mattingly, 127. 
 
 Smith 7'. McChesney, 649. 
 
 Smith 7'. McDonald, 474. 
 
 Smith 7'. McKay, 494. 
 
 Smith 7 1 . McLean, 151. 
 
 Smith v. Moodus Water Co., 511. 
 
 Smith 7'. Newton, 280. 
 
 Smith v. Niver, 156. 
 
 Smith v. Parks, 243, 244. 
 
 Smith v. Parsons, 025. 
 
 Smith 7'. Patton, 367. 
 
 Smith 7'. Paysenger, 100. 
 
 Smith 7'. Porter, 576. 
 
 Smith 7'. Poyas, 62. 
 
 Smith 7'. Previtt, 596. 
 
 Smith 7'. -Price, 14. 
 
 Smith 7'. Prodin, 278. 
 
 Smith 7'. Provin, 277. 
 
 Smith 7'. Putnam, 140, 429. 
 
 Smith v. Quiggans, 123. 
 
 Smith v. Rec. Fund Soc., 641. 
 
 Smith 7'. Rice, 236. 
 
 Smith v. Richards, 125. 
 
 Smith v. Roberts, 495. 
 
 Smith 7 1 . Rochester, 2. 
 
 Smith 7>. Runnels, 195, 299. 
 
 Smith v. Shackelford, 596. 
 
 Smith 7'. Shattuck, 494. 
 
 Smith 7'. Shepherd, 245, 619. 
 
 Smith 7'. Slocomb, 601. 
 
 Smith v. Smith, 63, 640. 
 
 Smith r. Sprague, 617, 624. 
 
 Smith v. Stephens, 89. 
 
 Smith v. S^tephenson, 368. 
 
 Smith v. Stewart, 166. 
 
 Smith v. Stigleman, 154. 
 
 Smith v. Strong, 614. 
 
 Smith v. Surman, 563. 
 
 Smith 7'. Thackerah, 448. 
 
 .Smith v. Upton, 197. 
 
 Smiley v. Van Winkle, 139. 
 
 Smith -v. Wait, 645. 
 
 Smith v. Wells, 123.
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.} 
 
 Smith r. V.'cstall, 590. 
 Smith i: Whitney, Id. 
 Smither i: Willock, 301. 
 Smith r. Woolfolk, 272. 
 Smithwick v. Ellison, 16. 
 Smolly v. Ulrich, 233. 
 Smyles v, Hastings, 439. 
 Smyth v. Stoddard, 16. 
 Smyth v. Sturges, 13. 
 Sraythe v. Brown, 274. 
 Smythe v. Henry, 158, 515. 
 Smythe v. North, 140. 
 Snape v, Turton Cro. Car., 405. 
 Snead v. Tiejer, 134. 
 Snedeker v. Waring, 14. 
 Sneed v. Osborn, 510. 
 Snell v. Leavitt, 435. 
 Snoddy v. Kreutch, 497. 
 Snoddy v. Leavitt, 515. 
 Snooks v. Wingfield, 595. 605. 
 Snow v. Orleans, 559, 577. 
 Snow v. Pressey, 231, i?^. 
 Snow v. Stevens, 239. 
 Snow v. Wormick Inst., 246, 272. 
 Snowdon r. Wilas, 407. 
 Snowden v. Rush, 495. 
 Snyder v. Gordon, 14f>. 
 Snyder v. Harding, 178. 
 Snyder r. Jones, 294. 
 Snyder r. Lane, 617. 
 Snyder v. Miller, 118. 
 Snyder v. Riley, 149. 
 Snyder r. Snyder, 529, 653. 
 Soe v. Audley, 44. 
 Sohier i: Coffin, 559. 
 Sohier v. Eldridge, 56. 
 
 Sohier r. Mass. Gen. Hospital, 524, 528. 
 Sohier r. Trinity Church, 528. 
 Solberg v. Wright, 277. 
 Solomon v. Fantozzi, 154. 
 So'omon r. Lawrence, 373. 
 Solomon v. Vinter's Co.. 449. 
 So'omon . Wilson, 238. 
 Solt r. Anderson, 126. 
 Somar v. Canady, 8t>. 
 Somers v. Overhulser, 367. 
 Somers v. Pumphrey, 577. 
 Somers v. Schmidt, 624. 
 Somerset, etc.. Assn. r. Ocnman, 275. 
 Somersworth Sav. Bk. r: Roberts, 236. 
 Somes v. Brewer, Sfifl. 
 Somes v. Skinner, 512, 514. 
 Soocr v. Guernsey, 237. 
 Soper v. Lawrence Bros., 186. 
 Sn'sby r. Vance, 631. 
 Sotton v. Burrows, 85. 
 Soukiip v. Topeka, 205. 
 Soule v. Albee, 273. 
 Sou'e v. Barlow, 495. 
 South Branch R. R. Co. r. Parker. 441. 
 South Omaha Bk. Co. r. Levy, 272. 
 Southard v. Central R. R., 207. 
 Southard v. Parks, 520. 
 Southbridge Sav. Bank r. Mason, 15. 
 Southerin r. Mendum, 251. 
 Snutherland r. Stout. 619. 
 Southern Cotton Belt Co. r. Dukes, 557. 
 Southern Cotton Oil Co. r. Henshaw, 
 
 IPfl. 
 
 Southern R. R. Co -. Sate, 101. 
 Southsctt f. Stowell. 354. 
 
 Soutter v. Potter, 593. 
 
 Souverlye v. Arden, 576, 577. 
 
 Sowle r. Champion, 278. 
 
 Sowles v. Martin, 160. 
 
 Sowles' Trustee r. Buck, 274. 
 
 Spacy v. Ritter, 578. 
 
 Spader r. Powers, 321. 
 
 Spalding v. Bemiss, 434. 
 
 Spalding v. Mumford, 151. 
 
 Spalding v. Shalmer, 383. 
 
 Spangler v. Spangler, 86. 
 
 Sparger v. Moore, 86. ffl 
 
 Sparhawk v. Bagg, 239. 
 
 Sparhawk v. Broome, 140. 
 
 Sparhawk z 1 . Sparhawk, 376. 
 
 Sparks v. State Bank, 260. 
 
 Sparrow r. Hovey, 493, 504.- 
 
 Spaulding r. Chicago, 66. 
 
 Spaulding r. Hallenbeck, 253. 
 
 Spaulding v. Woodward, 192. 
 
 Spear v. Fuller, 147, 148. 
 
 Spears v. Conley, 515. 
 
 Speer v. Evans, 584. 
 
 Speer v. Speer, 195. 
 
 Speiden v. Parker, 2, 13. 
 
 Spence v. Steadman, 233. 
 
 Spencer v. Carr, 561. 
 
 Spencer v. Dougherty, 208. 
 
 Spencer v. Harford, 276. 
 
 Spencer v. Higgins, 640. 
 
 Spencer v. Kimball, 405, 407. 
 
 Spencer v. Lewis, 59. 
 
 Spencer v. Newbold's, 368. 
 
 Spencer v. Robbins, 567. 
 
 Spencer v. Scovil, 392. 
 
 Spencer v. Spencer, 380. 
 
 Spencer 7'. Spruel, 45. 
 
 Spencer v. Strait, 298. 
 
 Spencer v. Waterman, 258. 
 
 Spencer v, Weston, 101. 
 
 Spero v. Levy, 142. 
 
 Sperry v. Sperry, 207. 
 
 Spies v. Voss, 130. 
 
 Spiller v. Scribner, 595. 605. 
 
 Spinker r. Haagsma, 562. 
 
 Sprague v. Duel, 556. 
 
 Sprague r. Luther, 632, 633. 
 
 Sprague r. Quin, 163. 
 
 Sprague v. Rooney, 134. 
 
 Sprague v. Snow, 608. 
 
 Sprague v. Woods, 329, 548. 
 
 Sprigg v. Bk. of Mt. Pleasant, 233. 
 
 Sprigner v. Walters, 217. 
 
 Springer v. Berry, 331, 367. 
 
 Springer v. Chicago & C. Co., 139. 
 
 Springer v. Congleton, 642. 
 
 Sprjnger v. Lipsis, 160. 
 
 Springer v. Sprmger, 367. 
 
 Springfield r. Harris, 444. 
 
 Springfield Foundry & Machine Co. v. 
 
 Cole, 16. 
 
 Springfield Ins. Co. r. Allen, 248. 
 Springs v. Scott, 307. 
 Spurgeon v. Collier, 234. 
 Spurr v. Andrew, 253, 617. 
 Spyye v. Tonharo, 609. 
 Squirer v. Harvey, 204. 
 Squier v. Morris, 569. 
 Squire v. Ferd Heim Co., 168. 
 Squire v. Harder, 329. 
 Squire r. Mudgetts, 128. 
 
 cvii
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Stabler r. Collins. IfO. 
 
 St.ick :. Seaton, 157. 
 
 Stafford r. Giles, ."'.'". 
 
 Stafford f. Tones, 230. 
 
 Stafford f. Van Renssclaer, 217, 260. 
 
 Siaffordville Gravel Co. :. Newall, 515. 
 
 St.ihl r. Delin, 231. 
 
 Stahl f. Stahl. 98. 115. 
 
 Stainback f. Geddy, 255. 
 
 Stall r. Cincinnati, 383. 
 
 Stambaugh r. Smith, 625. 
 
 Stamper r. Griffin, 498. 
 
 Stanard f. Eldridge, 614. 
 
 Stanbrough r. Daniels, 273. 
 
 Stanch r. Ziegler, 45. 
 
 Standley r. Moss, 633, 634. 
 
 Stanhope f. Manners, 272. 
 
 Stanish r. Dow, 273. 
 
 Stanley v. Beatty, 251. 
 
 Stanley f. Colt, 210, 371. 
 
 Stanley r. Kempton, 250. 
 
 Stanley r. Schoolbred, 493, 494. 
 
 Stanley r. Socks, 886. 
 
 Stanley r. Stanley, 387 
 
 Stanley r. Valentine, 257. 
 
 Stannard -: Serry, 197. 
 
 Stansberry -. Inglehart, 299. 
 
 Stansbury r. Hubner, 204. 
 
 Stansell r. Roberts, 219. 
 
 Stansfield r. Habergram, 359, 366. 
 
 Stansfield r. Hobson, 247. 
 
 Stansfield r. Portmouth, 18. 
 
 Stanton f. Allen, 139, 202. 
 
 Stanton r. Mullins, 494. 
 
 Stantons v. Thompson, 242, 258. 
 
 Staples <: May, 591. 
 
 Star r. Ellis, 257. 
 
 Stark z: Carroll, 195. 
 
 Stark f. Coffin, 601. 
 
 Stark r. Hopson, 92. 
 
 Stark i'. McGowen. 453. 
 
 Stark 7-. Mercer, 276. 
 
 Starkweather r. Am. Bible Soc., 642. 
 
 Starr r. Moulton, 380. 
 
 Starr v. Starr, 118, 634. 
 
 State v. Batchhelder, 522. 
 
 State r. Bonham, 16. 
 
 State v. Coughram, 574. 
 
 State r. Diveling, 126. 
 
 State v. Ellmore, 160. 
 
 State Bank v. Evans, 578. 
 
 State v. Gilbert. 654. 
 
 State v. Gilmanton, 599. 
 
 State v. Griffith, 641. 
 
 State v. Guilford, 380. 
 
 State v. Harman, 532. 
 
 State v. Horn, 441. 
 
 State v. Matthews. 553. 
 
 State r. Northern R. R. Co., 2. 
 
 State v. Pacific Guano Co., 599. 
 
 State r. Peck, 572, 579. 
 
 State v. Pickney, 599. 
 
 State v. Pottmyer, 2. 
 
 State Bank v. Percival, 11. 
 
 State v. Schwin, 441. 
 
 State v. Sluder, 560. 
 
 State v. Staiger, 129. 
 
 State v. Tanner, 522. 
 
 State v. Van Derweer, 441. 
 
 State r. Westfall, 656. 
 
 State v. Whithank, 642. 
 
 cviii 
 
 Stater v. Collins, 464. 
 
 Statesbury r. Vail, 156. 
 
 Staton v. Mullis, 494, 588. 
 
 Steacy v. Rice, 361. 
 
 Steads Exrs. v. Course, 53d. 
 
 Steamboat Magnolia v. Marshall, 599. 
 
 Stearcy v. Rice, 348. 
 
 Stearns v. Hendersass, 511. 
 
 Stearns v. Jones, 429. 
 
 Stearns v. Quincy Mut. Ins. Co., 248. 
 
 Stearns v. Swift, 558. 
 
 Stears v. Hollenbeck, 247. 
 
 Stebbins v. Hall, 619. 
 
 Steckman v. Priest, 642. 
 
 Steel r. Frick', 160. 
 
 Steel r. Johnson, 507. 
 
 Steele v. Boone, 260. 
 
 Steele r. Mague, 96. 
 
 Steele v. Steele, 72, 228. 
 
 Steele v. Taylor, 596. 
 
 Steenburger v. Greenwood, 123. 
 
 Steene v. Steele's Admr., 463. 
 
 Steeper v. Baker, 495. 
 
 Steeple v. Downing, 504, 559. 
 
 Steer v. Steer, 374. 
 
 Steers v. Brooklyn, 488. 
 
 Steffins v. Earl, 168. 
 
 Steffens v. Nelson, 509. 
 
 Stegall i'. Stegall, 98. 
 
 Stchman v. Stehman, 393. 
 
 Stein v. Hanck, 443. 
 
 Steiner v. Ellis, 264. 
 
 Steinhardt v. Cunningham, 275. 
 
 Stelle v. Carroll, 87. 
 
 Steltnische v. Lamb, 504. 
 
 Stelzich r. Weidel, 258. 
 
 Stenner v. Berney, 126. 
 
 Stephens v. Bridges, 155. 
 
 Stephens r. Hewitt, 191. 
 
 Stephens r. Hooks, 458. 
 
 Stephens r. Hume, 80. 
 
 Stephens r. Huss, 578. 
 
 Stephens r. Leonard, 86, 94. 
 
 Stephens r. McCormick, 498. 
 
 Stephens v. Morse, 580. 
 
 Stephens v. Mut. Ins. Co., 248. 
 
 Stephens v. Rinehart, 578. 
 
 Stephenson v. Cotter, 191. 
 
 Stephenson v. Doe, 471. 
 
 Stephenson v. Haines, 462. 
 
 Stephenson's Heirs v. Sullivan, 482. 
 
 Steryer v. Van Siclen, 146. 
 
 Sterling v. Baldwin, 563. 
 
 Sterling v. Sterling, 635. 
 
 Sterling v. Warden, 173, 468. 
 
 Sternberg v. Dominick, 278. 
 
 Sternberg r. Wilcox, 161. 
 
 Sterns v. Sampson, 173. 
 
 Stetson v. Daw, 605, 606. 
 
 Stevens v. Brown, 59. 
 
 Stevens v. Bunham, 18. 
 
 Stevens v. Castell, 577. 
 
 Stevens v. Cooper, 283, 285. 
 
 Stevens v. Enders, 195. 
 
 Stevens v. Fowler, 298. 
 
 Stevens v. Hampton, 574. 
 
 Stevens v. Hollister, 494. 
 
 Stevens r. Martin, 186. 
 
 Stevens f. McNamara, 532. 
 
 Stevens r. Ozburn, r>6.>, 575. 
 
 Stevens v. Pierce, 134, 146.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Stevens v. Rainwater, 217. 
 
 Stevens v. Reed, 109. 
 
 Stevens v. Rose, 16. 
 
 Stevens v. Stevens, 105, 367. 
 
 Stevens v. Taft, 497. 
 
 Stevens v. Van Cleve, 632. 
 
 Stever.s r. Watson, 583. 
 
 Stevens Lumber Co. v. Hughes, 493. 
 
 Stevenson :. Anderson, 186. 
 
 Stevenson ~. Black, 251. 
 
 Stevenson v. Brasher, 115, 574. 
 
 Stevenson r. Chattanooga, 429. 
 
 Stevenson r. Crapnell, 579. 
 
 Stevenson -'. Huddlestone, 631. 
 
 Stevenson v. Lombard, 139. 
 
 Stevenson v. Lesley, 381. 
 
 Stevenson r. Stevenson, 367. 
 
 Stevenson v. Stewart, 435. 
 
 Stewart r. Barrow, 243, 244. 
 
 Stewart v. Brady, 33, 204. 
 
 Stewart 7'. Chadwick, 85. 
 
 Stewart v. Clark, 51. 
 
 Stewart v. Crosby, 254. 
 
 Stewart r. Crysler, 86. 
 
 Stewart v. Doughty, 58. 
 
 Stewart v. Duffy, 368. 
 
 Stewart r. Fitch, 598. 
 
 Stewart v. Harriman, 634. 
 
 Stewart r. Hutchings, 230. 
 
 Stewart v. Long Island R. R. Co., 139. 
 
 Stewart v. Mackey, 127. 
 
 Stewart r. Mathany, 54. 
 
 Stewart r. McMartin, 85. 
 
 Stewart r. McSweeney, 559, 584. 
 
 Stewart r. Neely, 317. 
 
 Stewart r. Roderick, 157. 
 
 Stewart v. Smith, 260. 
 
 Stewart v. Sprague, 140. 
 
 Stewart r. Stewart, 34. 
 
 Stewart r. Stokes, 417. 
 
 Stewart '. Thomas, 181. 
 
 Stewart r. Toes, 217. 
 
 Stewart i'. Wood, 220. 
 
 Sticklebone r. Hatchman, 66. 
 
 Stickney r. Stickney, 160. 
 
 Stiger v. Bent, 255, 257. 
 
 Stiles r. Hooker, 435. 
 
 Still r. Mayor, 217. 
 
 Stillman r. Stillmah, 257. 
 
 Stilloway r. Brown, 122. 
 
 Stillwell r. Hubbard, 578. 
 
 Stillwell r. Knapper, 204. 
 
 Stillwcll ?'. St. Letc. Ry. Co., 608. 
 
 Stimpson r. Butterman, 176. 
 
 Stimpson r. Thomaston Bk., 92. 
 
 Stinebaugh r. Wisdom, 80. 
 
 Stinson v. Ross, 239. 
 
 Stinson T. Summer, 85. 
 
 Stobie r. Dills, 156. 
 
 Stockbridge r. Stockbridge, 302, 640. 
 
 Stockbridge Iron Co. v. Hudson Iron Co., 
 
 590. 
 
 Stockport Waterworks r. Potter, 447. 
 Stockton f. Williams, 520, 559. 
 Stockwell r. Campbell, 13. 
 Stockwell T. Hunter, 4. 
 Stocton r. Geissler. 495. 
 Stoddard r. Gibbs, 81. 
 Storldnrd -. Hart. 215. 236. 
 Stoddard r. Nelson, 134. 
 Stoddard v. Rotton, 257. 
 
 Stoddard v. Weston, 186. 
 
 Stodgell v. Jackson, 122. 
 
 Stoever v. Stoever, 228, 281. 
 
 Stokes 7'. McKibben, 79. 
 
 Stokes v. O' Fallen, 86. 
 
 Stone v. Ashley, 573. 
 
 Stone v. Bradlee, 45, 399. 
 
 Stone -'. Clark, 595. 
 
 Stone v. Harrison, 38. 
 
 Stone v. Hooker, 619. 
 
 Stone v. Lane, 262. 
 
 Stone i'. Lewis Admr., 301. 
 
 Stone f. Littlefield, 298. 
 
 Stone T. Locke, 274. 
 
 Stone v. McEckron, 322. 
 
 Stone 7'. Meyers, 5(i6. 
 
 Stone r. Montgomery, 558. 
 
 Stone r. Patterson, 245. 
 
 Stone i>. Seymour, 270. 
 
 Stone v. Sprague, 163. 
 
 Stoney v. Shultz, 246, 285. 
 
 Stool foos 7'. Jenkins, 80. 
 
 Stopplebein r. Shulte, 87. 
 
 Stover i: Freeman, 598. 
 
 Storm 7'. Mann, 68. 
 
 Storm Lake Bank v. Mo. Val. Ins Co., 
 
 368. 
 
 Storms 7'. Storms, 236. 
 Story v. Saunders, 186. 
 Story 7'. Wolverton, 519. 
 Stough 7 1 . Bodyen Lumber Co., 285. 
 Stoughton f. Lee, 4. 
 Stoughton v. Leigh, 64, 105. 
 Stout 7'. Merrill, 157, 556. 
 Stout r. Stout, 399. 
 Stover 7'. Boswell, 482. 
 Stover 7 1 . Eycleshimer, 385, 564 
 Stover 7>. Jack, 598. 
 Stover 7'. Kendall, 649. 
 Stover 7'. Wood, 257. 
 Strode T. Russell, 241. 
 Stow 7'. Tifft, 87, 94. 
 Stowe 7-. Steele, 97. 
 Stowell 7'. Pike, 244, 265. 
 Strabala -'. Lewis, 505. 
 Strafford 7'. Wentworth, 55. 
 Stranford r. Broadway Sav. & Loan Co.. 
 
 511. 
 
 Strang v. Allen, 246. 
 Stratton r. Bailey, 74. 
 Stratton 7'. Gold, 219. 
 Strauss v. Rost, 301. 
 Strayer v. Long, 116. 
 Streaper r. Fisher, 147. 
 Streeter t: Shultz, 186. 
 Strickland r. Bartlett, 558. 
 Stringer v. Northwestern Mut. Life Ins-., 
 
 557. 
 
 Stringer v. Young, 521. 
 Striver 7 f . Smith, 427. 
 Stude v. Russell, 241. 
 Strogan v. Knowles, 448. 
 Strohmeyer v. Zeppenfeld, 142. 
 Strokes r. Hodges, 585. 
 Strong v. Bragg, 86. 
 Strong 7-. Clem, 85. 
 Strong v. Converse, 94, 258. 
 Strong v. Gregory, .420. 
 Strong v. Ins. Co., 248. 
 Strong r. Makeever, 441. 
 Strong v. Smith, 275, 581. 
 
 cix
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Strong f. Stewart, 238. 
 Strong ;. Strong, 233. 
 Si u). her f. Law, 277. 
 Slrother r. Lucas, 520. 
 Stroud ; . Pace. 218. 
 Siiou 1 f. Springfield, 506. 
 Stroujjh f. Wilder, 577. 
 Strush t. Decker. 637. 
 Struthers :. Pcarce, 368. 
 Siuart . . Diplock, 433. 
 Sr.iart r. Frink, 441. 
 Stuart f. Harrison, 217. 
 Stuart f. Kissam, 72. 
 Stuart :. Lowry. 5i>9. 
 Stubblefeld ;. Boggs. 521. 
 Stuckcr ?. Stucker, 274. 
 Studdard f. Wells. 291. 
 Stuebben :. Granger. 156. 
 Stull f. Stull. 180. 186. 
 Slump r. Findlay. 51. 
 Stumpf r. Hallshon, 276. 
 Stumpf f. Osterhage, 494, 495. 
 Stunz f. Stunz. 118. 
 Sturgis f. Corp., 348. 
 Sturgis f. Ewing, 85. 
 Sturgis r. Paine, 373. 
 Sturgis f. Work, 640, 649. 
 Sturtcvant f. Jaques, 360. 
 Stnrtevant r. Sturtevant, 577. 
 Stuyvesant f. Hall, 261, 582. 
 Stuyvesant r. Mayor of New York, 206. 
 Suarey f. Pomnelly, 373. 
 StifTern f. Butler, 578. 
 Suffolk Ins. Co. 7\ Boyden, 248. 
 Su'any r. Middleton, 399. 
 Su'livan v. Enders, 164. 
 Sullivan r. Smitt, 146. 
 Sullivan r. Sullivan, 634. 
 Summer -. Conant, 558, 570. 
 Summers r. Babb, 105. 
 Summers v. Pumphrey, 556. 
 Summers v. Smith, 393. 
 Summcrville : Stockton Co., 160. 
 Summit 7'. Yount, 204. 
 Sumner r. Darnell, 201. 
 Sumner ;. Lampson, 86. 
 Sumner -. Seaton. 509. 
 Sumner r. Stevens, 516. 
 Sumner f. Waugh, 253. 
 Sumner r. Williams, 609. 
 Sumrall v. Chaffin, 278. 
 Sumwalt f. Tucker, 243. 
 Sunderland r. Hood, 637. 
 Supervisors, etc.. i'. Patterson, 201, 627. 
 Supple T. Timothy, 169. 
 Surdam T. Cornell, 302. 
 Susquehanna, etc., R. Co. r. Quick, 504. 
 Sussex Mut. Fns. Co. r. Woodruff, 248. 
 Sutliffe r. Atwood, 143. 
 Sutphen 7'. Cushman, 233. 
 Sut|>hin '<. Seebas, 153. 
 Sutton v. Aiken, 348. 
 Sutton -. Cole, 331. 
 Sutton r. Gibson, 579. 
 Sutton f. Hiram Lodge, 130. 
 Sutton r. Mason, 243. 
 Sutton r. Stone. 272. 
 Sutton T. Sutton, 633. 
 Suydam v. Bartle, 276. 
 Snydam r. Tones, 624. 
 Suydam r. Thayer. 387. 
 CX 
 
 Swainc r. Ferine, 117, 287. 
 Swan ?. Benson, 217. 
 Swan T. Jupple, 250. 
 Swandale v. Swandale, 123, 126. 
 Swanson ;. Calhoun, 195. 
 Swasey v. Little, 462. 
 Swazey v. Brooks, 609. 
 Swazey v. Jaques, 476. 
 Swearmgen v. Morris, 629. 
 Sweatt v. Corcoran, 521. 
 Sweeney v. Hanley, 191. 
 Sweet v. Brown, 619, 622. 
 Sweet v. Parker, 233. 
 Sweet v. Sherman, 284. 
 Sweet r. Ward, 264. 
 Sweetapple v. Bindon, 79. 
 Sweetser v. Lowell, 576. 
 Sweetzer v, Jones, 253. 
 Sweezy v, Thayer, 281. 
 Swett v. Thompson, 299. 
 Swift 7'. Coker, 434. 
 Swift v. Edson, 275. 
 Swift v. Mulkey, 494. 
 Swigert v. Bk. of Ky., 290. 
 Swinburne v. Swinburne, 368. 
 Swinney v. Gontz, 238. 
 Swinton v. Legare, 306. 
 Swope v. Ward, 491, 495. 
 Sword v. Low, 13, 15. 
 Sylvester v. Ralston, 166. 
 Sylvester v. Wilson, 322. 
 Syracuse Bank r. Merrick, 251. 
 Syracuse Bk v. Tallman, 245. 
 
 Tabb 7'. Baird, 559. 
 Tabler r. Wiseman, 194. 
 Tact v. Crawford, 585. 
 Tadlock v. Eccles, 273. 
 Taffe 7'. Harteau, 147. 
 Taft v. Stevens, 240. 
 Taft v. Taft, 373. 
 Tainter v. C|ark, 377. 
 Talamo 7'. Spitzmiller, 134. 
 Talbot 7'. Braddill, 234. 
 Talbot 7'. Talbot, 479. 
 Talbot 7'. Whipple, 156. 
 Tallmadge r. Sill, 420. 
 Tallman r. Murphy, 158. 
 Tallman 7'. Wood, 322. 
 Talman v. Snow. 207. 
 Tancred 7'. Christy, 166. 
 Tane v. Campbell, 181. 
 Taney r. Fahnley, 321, 322. 
 Tanner i: Hills, 160. 
 Tanner v. Skinner. 373. 
 Tanton v. Van Alstine, 134. 
 Tanun v. Kellogg, 496. 
 Tapley v. Smith, 9. 
 Taopan v. Davidson, 633. 
 Tappan v. Diblois, 631, 641 
 Tarver i: Tarver, 651. 
 Tasker v. Bartlett, 572. 
 Tate 7'. Carney, 522. 
 Tate v. Field, 68. 
 Tate v. Foshee, 193. 
 Tate 7-. Gray, 596. 
 Tatro v. Tatro, 98. 
 Tattle v. Wilson. 101. 
 Taylor v. Adams, 60, 306.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Taylor 7-. Baldwin, 190, 217. 
 Taylor r. Benham, 380. 
 Taylor v. Blake, 195. 
 Taylor v. Boyd, 529. 
 Taylor r. Bray, 475. 
 Taylor r. Broderick, 105. 
 Taylor r. Burnside, 492. 
 Taylor r. Caldwell, 132. 
 Taylor r. Coriell, 362. 
 Taylor v. Dening, 632. 
 Taylor r. Dugger, 498. 
 Taylor r. Eastman, 413. 
 Taylor r. Fowler, 87. 
 Taylor r. Gardiner, 635. 
 Taylor v. Glaser, 572. 
 Taylor r. Gould, 80. 
 Taylor v. Harwell, 463. 
 Taylor v. Henry, 373. 
 Taylor v. Highberger, 85. 
 Taylor v. Horde, 42, 496. 
 Taylor v. Kelly, 631. 
 Taylor v. King, 565. 
 Taylor v. Martin, 373. 
 Taylor v. Mason, 203. 
 Taylor v. Maxon, 202. 
 Taylor r. McCracken, 87. 
 
 Taylor v. Millard, 430. 
 aylor v. Morton, 550, 571. 
 Taylor r. Mosely, 368. 
 Taylor ?. Page, 236, 253. 
 Taylor r. Porter, 25, 524. 
 Taylor r. Short, 289. 
 Taylor v. Stewart, 305. 
 Taylor r. Sutton, 20(). 
 Taylor v. Taylor, 42, 649. 
 Taylor v. Waters, 465. 
 Teaney v. Moins, 31. 
 Teater v. King, 139, 168. 
 Teets v. Weise, 301. 
 Tefft v. Munson, 247, 515. 
 Tegarden v, Le Marchal, 505. 
 Teit v. Richard, 397. 
 Telfair v. Roe, 471. 
 Temple v. Mead, 631. 
 Templeman r. Biddle, 58. 
 Teneyck v. Craig, 246. 
 Tennent r. Stoney, 100. 
 Tennessee, etc., R. R. Co. v. Mabry, 505. 
 Terrell r. Andrew Co., 259, 584. 
 Terrell v. Martin, 186. 
 Terrett r. Taylor, 520, 621. 
 Territory v. Klee, 569. 
 Terry r. Brings, 391. 
 Terry v. Diabenstatt. 625. 
 Terry v. Eureka College, 272. 
 Teulon r. Curtis, 247. 
 Tew ?'. Jones, 166. 
 Tewkshnry r: Mngraff, 157. 
 Tewkesbury r. O'Connell, 578. 
 Texas Land, etc., Co. r. Blalock, 126. 
 Thacher r. Phinney, 566. 
 Thackery v. Edigan, 68. 
 Thackston v. Watson, 310. 
 Thamed v. Caldwell, 217. 
 Thames v. Caldwell, 218. 
 Tharp 7'. Yarbrough, 562. 
 Tharpe r. Feltz, 269. 
 Thatcher r. Omans. 342, 548. 
 Thatcher r. Phinney, 86. 
 Thatcher r. Powell, 533. 
 Thayer v. Campbell, 274. 
 
 Thayer r. Clemence, 426. 
 
 Thayer v. Mann, 276. 
 
 Thayer v. Richards, 237. 
 
 Thayer v. Spear, 200. 
 
 The Commonwealth v. Alger, 26. 
 
 The Commonwealth v. Tewksbury, 25. 
 
 Thelluson v. VVoodford, 400. 
 
 The People v. Darling, 167. 
 
 The People v. Field, 173. 
 
 The People v. Gillis, 136. ( 
 
 The People r. Salem, 25. 
 
 The People v. Ulster Coin. Pleas, 281. 
 
 The State v. Brown, 291. 
 
 Thibodeaux v. Thibodeaux, 195. 
 
 Thistie v. Buford, 515. 
 
 Thomas v. Bertram, 439. 
 
 Thomas v. Black, 157, 170. 
 
 Thomas v. Blackmore, 585. 
 
 Thomas v. Boerner, 521. 
 
 Thomas v. Cook, 156. 
 
 Thomas v. Davis, 17. 
 
 Thomas v. Gammel, 97. 
 
 Thomas v. Hamil, 195, 198. 
 
 Thomas v. Hatch, 186, 556. 
 
 Thomas v. Kingsland, 146. 
 
 Thomas v. Mansfield, 42G, 504. 
 
 Thomas v. Perry, 615. 
 
 Thomas v. Pickering, 186. 
 
 Thomas v. Poole, 626. 
 
 Thomas v. Pullis, 557. 
 
 Thomas v. Simmons, 242. 
 
 Thomas v. Stand! ford, 367. 
 
 Thomas v. Stickle, 618. 
 
 Thomas r. Thomas, 91. 389. 
 
 Thomas v. Turney, 552. 
 
 Thomas v. Vonkapff, 248, 626. 
 
 Thomas v. Wolford, 298. 
 
 Thomas v. Wyatt, 521. 
 
 Thomason v. Neely, 126. 
 
 Thompson r. Atty. Gen., 629. 
 
 Thompson 7'. Banks, 606. 
 
 Thompson v. Bostick, 191. 
 
 Thompson v. Boyd, 87, 92. 
 
 Thompson v. Burhaus, 494. 
 
 Thompson v. Calhoun, 564. 
 
 Thompson v. Chandler, 255. 
 
 Thompson v. Cochran, 90. 
 
 Thompson r. Collier, 113. 
 
 Thompson ?'. Davenport, 234. 
 
 Thompson v. Davitt, 633. 
 
 Thompson v. Egbert, 118. 
 
 Thompson v. Field, 251. 
 
 Thompson v. Hammond, 577. 
 
 Thompson v. Hoop, 388, 394. 
 
 Thompson v. Kauffelt, 497. 
 
 Thompson v. Kenyon, 250. 
 
 Thompson v. Leach, 296. 
 
 Thompson r. McGill, 217. 
 
 Thompson 7'. Morrow, 105. 
 
 Thompson r. Uglow, 435. 
 
 Thompson v. Peake, 364. 
 
 Thompson v. Phila., etc., Coal & Iron 
 
 Co., 497. 
 
 Thompson v. Pioche, 496. 
 Thompson r. Sanders, 624. 
 Thompson 7'. Shattuck, 624. 
 Thompson v. Sheppard, 126. 
 Thompson v. Southern Cal. M. R. Co.. 
 
 r>9] . 
 
 Thompson v. Speck, 589. 
 Thompson v. Stacy, 85. 
 
 cxi
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Thompson r. Thompson, 58, 87. 
 Thompson :. \Vatcrlow, 427, 428. 
 Thorn r. Sutherland, 10. 
 Thorndcll r. Morrison, 538. 
 Thorndike s. Burragc, 140. 
 Thome r. Thome, 239. 
 Thornton t 1 . Boyden, 28?. 
 Thornton f. Irwin, 270. 
 Thornton f. Knox, 217, 218. 
 Thornton f. Natchez, 201. 
 Thornton r. Payne, 130. 
 Thornton r. Peter, 217. 
 Thornton v. Pigg, 275. 
 Thorp f. Feltz, 240. 
 Thorp f. Keokuk Coal Co., 253. 
 Thorp r. McCullum, 417. 
 Thorpe r. Dunlap, 210. 
 Thorpe f. Goodall, 420. 
 Thorpe v. Philbin, 170. 
 Thorpe f. Raymond, 505. 
 Thrasher r. Pinckard, 108. 
 Thrasher r. Tyack, 113. 
 Throckmorton f. Price, 259, 284. 
 Thunder r. Belcher, 171. 
 Thurber :. Townshend, 75. 
 Thurman r. Cameron, 509. 
 Thurman r. Stoddard, 217. 
 Thursby ?. Plant, 143. 
 Thurston r. Dickinson, 300. 
 Tibbals f. Jacobs, 578. 
 Tice f. Annin, 239. 
 Tidd v. Lister, 72. 
 Tiddy v. Graves, 79, 84. 
 Tieman f. Tieman, 121. 
 Tiernan i'. Hinman, 234. 
 Tiernan t'. Thurman, 217. 
 Tierney f. Spiva, 273. 
 Tifft v. Horton, 13, 15. 
 Tilden r. Fiske, 377. 
 Tilden v. Green, 387, 041. 
 Tilden v. Greenwood, 239. 
 Tilden v. Tilden, 033. 
 Til ford v. Torrey, 307. 
 Tillar v. Henry, 308. 
 Tillett r. Aydlett, 31. 
 Tillinghast v. Champlin, 185. 
 Tillinghast v. Coggeshall, 78, 322. 
 Tillinghast -'. Holbrook, 550. 
 Tillman r. Brown, 122. 
 Tillman r. Spann, 498. 
 Tillotson v. Boyd, 253. 
 Tillotson v. Mitchell, 509. 
 Tillotson v. Preston, 400. 
 Tilson f. Thompson, 114. 
 Tilton v. Coal, 159. 
 Tilton r. Hunter, 582. 
 Tilton v. Vail, 195. 
 Timlin r. Standard Oil Co., 146. 
 Tindall v. Tindall, 27, 301. 
 Tinker v. Benson, 498. 
 Tinlay r, Huntington, 348. 
 Tinsley r. Lombard, 505. 
 Tinsley v. Tinsley, 217. 
 Tipping v. Cozzens. 329. 
 Tipnings -. Robbins, 189. 
 Tinton r. Martin, 127. 
 Tishner r. Rutledge, 159. 
 T i<sen v. Tissen. 401. 
 Titchenell r. Jackson, 874. 
 Titcomb r. Kink. 2. 
 Titcorab r. Morril, 329. 
 
 cxii 
 
 Titcomb v. Vantyle, 558. 
 
 Titsen i'. Cochran, 393. 
 
 Titus v. Haynes, 201, 582. 
 
 Titus v. Neilson, 90, 239. 
 
 Titzell v. Cochran, 45. 
 
 Toan v. Pline, 134, 400. 
 
 Tobey r. Secor, 497. 
 
 Tobin t: Bass, 577. 
 
 Tobin i'. Gnof, 400. 
 
 Tobin v. Young, 158. 
 
 Tocker f. Conrad, 441. 
 
 Tod . Baylor, 113. 
 
 Todd r. Jackson, 173. 
 
 Todd v. Kerr, 515. 
 
 Todd f. Lunt, 187. 
 
 Todd v. Rennick, 645. 
 
 Todd v. Tott, 042. 
 
 Todd v. Union Dime Sav. Bank, 584. 
 
 Toder 7'. Herring, 410. 
 
 Todhunter v. Armstrong, 100. 
 
 Token v. Tokon, 373. 
 
 Toland r. Corey, 580. 
 
 Tole v. Hardy, 038. 
 
 Toledo R. R. f. St. L. & C. R. R., 209. 
 
 Toller r. Atwood, 322. 
 
 Toilet v. Toilet, 417. 
 
 Tolman r. Casualty Co., 238. 
 
 Tolman r. Smith, 241. 
 
 Tomkins r. Wheeler, 570. 
 
 Tomle r. Hampton, 146. 
 
 Tomlin v. Luce, 278. 
 
 Tomlinson r. Dighton, 301. 
 
 Tomlinson ?'. Monmouth, 229. 
 
 Tomlinson v. Swinney, 127. 
 
 Tomlinson i: Tomlinson, 047. 
 
 Tompkins v. Mitchell, 217. 
 
 Tompkins v. Tompson, 570. 
 
 Toner v. Collins, 388. 
 
 Tong v. Marvin, 75. 
 
 Tongue v. Nutwell, 397. 
 
 Tonsville r. Pierson, 123. 
 
 Toof v. Decatur, 441. 
 
 Toole v. Perry, 302. 
 
 Tooley v. Dibble, 579. 
 
 Tooley v. Kane, 530. 
 
 Toomey v. McLean, 87. 
 
 Tooms i: Couset, 234. 
 
 Topley v. Topley, 500. 
 
 Topp v. White, 365. 
 
 Topping v. Cohn, 505. 
 
 Torrance i: Carbey, 92. 
 
 Torrence r. Shredd, 512. 
 
 Torrey v. Biglow, 495. 
 
 Torrey ?>. Burnett, 10, 18. 
 
 Torrey v. Cook, 277. 
 
 Torrey v. Minor, 85, 021. 
 
 Torroms v. Hicks, 275. 
 
 Toss v. Staunton, 142. 
 
 Totel v. Bounefoy, 460. 
 
 Totten ". Stuyvesant, 86. 
 
 Toulmin v. Austin, 505, 581. 
 
 Toulmin v. Heidelberg, 570. 
 
 Tours v. Williams, 373. 
 
 Tower v. Fetz, 233. 
 
 Tower v. Hale, 502. 
 
 Town v. Hazen, 406. 
 
 Towne f. Ammidon. 380. 
 
 Towne r. Butterfield, 157, 163. 
 
 Towns T. Towns, 75. 
 
 Townsend v. Brown, 519. 
 
 Townsend v. Jemison, 507.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Townsend v. Morris, 620, 621. 
 Townsend v. Nickerson, 138. 
 Townsend v. Peterson, 233. 
 Townsend v. Smith, 569. 
 Townsend v. Windham, 420. 
 Townshend r. Corning, 56U. 
 Townshend v. Frommer, 273. 
 Townshend v. Townshend, 637. 
 Townson v. Tickell, 578, 405. 
 Towson v. Denson, 495. 
 Tracy v. Colby, 368. 
 Tracy v. Craig, 368. 
 Tracy v. Newton, 497. 
 Tracy v. Tracy, 68. 
 Trafford v. Boehm, 397. 
 Trafton v. Hawes, 548, 566. 
 Transue T. Brown, 633. 
 Trante r. White, 450. 
 Traphagen r. Burt, 367. 
 Traphagen v. Irwin, 582. 
 Traphagen j.'. Levy, 31, 407. 
 Trapnall v. Brown, 366. 
 Trasher v. Everhart, 512. 
 Trask v. Patterson, 69. 
 Trask v. Wheeler, 207. 
 Traster v. Nelson, 615. 
 Treadwell v. Cordis, 410. 
 Treadwell v. Tusley, 432. 
 Treadwell v. McKeon, 368. 
 Treat v. Pierce, 243. 
 Tremaine v. Weatherby, 494. 
 Tremberger v. Owens, 516. 
 Trentman v. Neff, 592. 
 Trexler v. Holler, 393. 
 Trimble v. Boothby, 521. 
 Trimm v. Marsh, 239. 
 Trimmer v. Dorden, 54, 56. 
 Tripe v. Marcy, 243, 272. 
 Tritt v. Colwell, 72. 
 Troost v. Davis, 269. 
 Troth v. Hunt, 273. 
 Trotter v. Hughes, 253. 
 Trousdale v. Darnell, 168. 
 Troy v. Troy, 52, 408. 
 Trucks v. Lindsay, 231. 
 Truebody v. Jacobson, 217. 
 Truesdale v. Ford, 586. 
 Truesdell v. Lehmann, 30, 48. 
 Truett v. Adams, 608. 
 Trull v. Bigelow, 580. 
 Trull v. Eastman, 512, 622. 
 Trull v. Fuller, 563. 
 Trull r. Skinner, 231, 518. 
 Trulock r. Donahue, 149, 460. 
 Trulock v. Robey, 246. 
 Truman v. Lore, 571, 575. 
 Trumbull v. Trumbull, 80. 
 Trustees v. Dickson, 243, 489. 
 Trustees v. Kirk. 495. 
 Trustees r. Lender, 601. 
 Trustees Catholic Church v. Manning, 
 
 674. 
 
 Trustees, etc., r Hart, 640. 
 Trustees, etc., v. Stewart, 380. 
 Trustees, etc., r. Zanesville C. & M. Co., 
 
 641. 
 
 Trustees of Donations r. Streeter, 239. 
 Trustees of Watertown v. Cowen, 429, 
 
 626. 
 Trustees Old Almshouse v. Smith, 253. 
 
 Trustees Union College v. New York, 205. 
 
 Trustees Union College v. Wheeler, 253. 
 
 Tryon v. Munson, 243. 
 
 Tryor v. Huntoon, 367, 590. 
 
 Tuck v. Fitts, 112. 
 
 Tuck v. Hartford Ins. Co., 248. 
 
 Tucker v. Clarke, 514, 625. 
 
 Tucker v. Hadley, 217. 
 
 Tucker -'. Moreland, 556, 557. 
 
 Tucker v. Oxner, 633. 
 
 Tucker v. Palmer, 380. 
 
 Tuckley v. Thompson, 216. 
 
 Tudor v. Anson, 41 T. 
 
 Tufts v. Adams, 625. 
 
 Tullett v. Armstrong, 73, 348. 
 
 Tully v, Davis, 574. 
 
 Tully v. Tully, 498. 
 
 Tunstall v. Christian, 445, 448. 
 
 Tupper v. Ford, 34. 
 
 Turk v. Funk, 260. 
 
 Turk v. Skiles, 50. 
 
 Turkham r. Shaw, 429. 
 
 Turner r. Barrand, 195, 299. 
 
 Turner v. Brown, 228. 
 
 Turner v. Burnheimer, 126. 
 
 Turner v. Cameron, 245. 
 
 Turner v. Coffin, 509. 
 
 Turner v. Connelly, 574. 
 
 Turner v. Doe, 163. 
 
 Turner T. Field. 572. 
 
 Turner r. Dall, 495. 
 
 Turner v. Hause, 300. 
 
 Turner v. Homer, 219. 
 
 Turner v. Johnson, 244. 
 
 Turner v. Kerr, 231. 
 
 Turner TJ. Quincy Ins. Co., 248. 
 
 Turner v. Reynolds, 563. 
 
 Turner v. State, 8. 
 
 Turner v. Thompson, 432, 443. 
 
 Turner v. Vaughan, 126. 
 
 Turner v. Whidden, 577, 578. 
 
 Turner's Guardian v. Turner's Heirs and 
 
 Creditors. 123, 126. 
 Turney v. Smith, 111. 
 Turpin v. Saunders, 496. 
 Turrer v. Mantonya, 151. 
 Tusker v. Bartlett, 572. 
 Tuthill v. Morris, 264. 
 Tuthill v. Scott, 444. 
 Tuttle v. Bean, 169. 
 Tuttle v Reynolds, 163, 157. 
 Tweddle v. Tweddle, 288. 
 Twigj? v. James. 276. 
 Twitchell v. McMurtrie, 250. 
 Twort v. Twort, 190. 
 Tyler v. Cooper, 434. 
 Tyler v. Haggart, 596. 
 Tyler v. Hammond, 428. 
 Tyler v. Herring. 278. 283. 
 Tyler v. Jewell, 197. 
 Tyler v. Judges. 656. 
 Tyler v Moore, 609. 
 Tyler v. Wilkinson, 429. 
 Tyll Con Min. Co v. Longstreet, 494. 
 Tyms v. R. R., 445. 
 Tyndall v. Peterson, 54 
 Tyrell r. Baldwin, 121. 
 Tyrrell v. Marsh, 405 
 Tyson v. Tyson. 107, 124. 
 
 CX111
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Udder v. O'Reilly, 181. 
 
 U fiord t. \Vilking, 604. 
 
 I'hlcr t. Hutchinson, 583. 
 
 I'lman r. Connor. 528. 
 
 UKter Co. Sav. Trust r. Leake, 248. 
 
 1'iulcrhill v. Saratoga & Washington R. 
 
 R. Co.. 200, 202. 
 Underwood r. Cave. 52, 408. 
 I'mlcrwood r. Dollins, 572. 
 Underwood r. Magruder, 397. 
 Underwood r. Robbins, 397. 
 Underwood f. Sutliffe, 367. 
 Unger f. Mooney. 496, 504. 
 Union Bank r. Emerson, 13. 
 Union, etc., M. Co. r. Taylor, 498. 
 Union Mut. Ins. Co. r. Campbell, 374. 
 Union Mut. Ins. Co. T'. Union Mills, 285. 
 I'nion Mut. L. Ins. Co. v. Hanford, 253. 
 Union Nat. Bank T. Bank of Kansas 
 
 City, 282. 
 
 Union Nat. Bk. r. Internal. Bk., 236. 
 Union Pao. Ry. r. Kindred, 498. 
 United N. J. Canal Co. r. Con. Fruit 
 
 Jar Co., 569. 
 
 United States r. Amedy, 340. 
 U. S. r. Appleton, 432. 
 United States r. Clark, 521. 
 United States r. Crosby, 629. 
 United States r. Fitzgerald, 522. 
 United States r. Gratiot, 17. 
 United States r. Hooe, 236. 
 United States r. Huckabee, 560. 
 United States f. Linn, 554. 
 United States r. Stephenson, 572. 
 United States v. Sturges, 236. 
 I'nited States Bank r. Covert, 251. 
 United States Life Ins. Co. v. Poillon, 
 
 276. 
 
 United States Trust Co. r. Roache, 273. 
 University of Vermont v. Joslyn, 139. 
 Upchurch v. Upchurch, 632. 
 Upham v. Emerson, 642. 
 Upham v. Varney, 390. 
 Upshaw v. Hargrove, 217. 
 Upton v. Archer, 553. 
 Upton r. Greenlees, 154. 
 Upwell v. Halsey, 401. 
 Urann r. Coats, 373. 
 Urban v. Grimes, 557. 
 Urch r. Walker, 377. 
 Uridias r. Morrell, 170. 
 Usher v. Richardson, 100. 
 Utah Loan & T. Co. v. Garbut, 134. 
 Utter v. Sidman, 31, 300. 
 Uvedall v. Uvedall, 308. 
 Uzzeel t ( . Horn, 498. 
 
 Vaca. Val. R. R. v. Mansfield, 558. 
 
 Vail v. Jacobs, 278. 
 
 Vail r. Long Island R. Co., 207, 01. 
 
 V? : l t-. Vail, 197. 
 
 Vail i: Weaver, 13. 
 
 Valentine v. Healey, 178. 
 
 Valentine t 1 . Piper, 598. 
 
 Valentine r. Wyson, 411. 
 
 Valle v. Clemens, 623. 
 
 Vallette v. Bennett, 380. 
 
 cxiv 
 
 Jackson, 59.1 
 Cam 
 
 Van Bibber v. Williamson, 56. 
 
 Van Brunt v. Wallace, 163. 
 
 Van Buren f. Olmstead, 246, 255. 
 
 Van Camp v. Fowler, 299, 306. 
 
 Vance r. Fore, 590. 
 
 Vance v. Johnson, 243. 
 
 Vance v. Vance, 117. 
 
 Van Cleaf r. Burns, 98. 
 
 Van Cortlandt r. Kip, 642, 650. 
 
 Van Court t'. Moore, 624. 
 
 Vandall i: Martin, 497. 
 
 Van Danswyck v. Wiese, 632. 
 
 Van Dayne v. Thayer, 87. 
 
 Vandegraff v. Medlock, 248. 
 
 Vandecker - p . Rohrbach, 156. 
 
 Van Belt v. Dewitt, 71. 
 
 Vanderhaize r. Hughes, 228, 234. 
 
 Vanderhuevel T. Storrs, 166. 
 
 Vanderkemp v. Shelton, 242, 273. 
 
 Vandewalker v. Rollins, 308. r 
 
 Van Doren ?'. Everitt, 58. 
 
 Vandoren r. Todd, 218. 
 
 Van Dusen r. Sweet, 556. 
 
 Van Duyne r. Shaun, 256, 273. 
 
 Van Duyne v. Thayer, 239. 
 
 Van Duzer ?'. Van Duzer, 83. 
 
 Vane v. Barnard, 67. 
 
 Van Etta v. Evanson, 553. 
 
 Van Frank v. St. L. & Cape Cirardeau 
 
 R. Co., 281. 
 Van Gordon 7'. 
 
 Van Home v. Campbell, 33, 298. 
 Van Home T. Fonda, 187, 3CS. 
 Vanhome's Lessee r. Dorrance, 200. 
 Van Kleek v. Dutch Ch., 642. 
 Van Meter r. McFaddin, 216. 
 Vanmeter r. Vanmeter, 236. 
 Yann r. Edwards, 74. 
 Van Ness v. Hyatt, 239. 
 Van Ness r. Pacard, 66. 
 Van Olinda v. Carpenter, 321. 
 Van Order v. Van Order, 118. 
 Van Pctt f. McGraw, 265. 
 Van Ratcliff v. Call, 125. 
 Van Rensselaer v. Clark, 584. 
 Van Rensselaer v. Dennison, 462, 626. 
 Van Rensselaer v. Freeman, 156. 
 Van Rensselaer v. Gallup, 149. 
 Van Rensselaer v. Hays, 149, 460. 
 Van Rensselaer r. Kearney, 514, 622. 
 Van Ranseller r. Penniman, 18, 156. 
 Van Rensselaer r. Planter, 460. 
 Van Rensselaer v. Radcliffe, 426. 
 Van Rensselaer v. Read, 458, 400. 
 Van Rensselaer v. Smith, 145, 149. 
 Vansant v. Boileau, 634. 
 Van Santwood v. Sandford, 550. 
 Van Schuyver T. Hartman, 503, 504. 
 Van Sickle r. Catlett, 494. 
 Van Thorniley v. Peters, 583. 
 Van Vechton r. Keator, 649. 
 Van Vronker 7'. Eastman, 90, 270. 
 Van Wagner v. Brown, 242. 
 Van Wagner v. Van Nostrand, 612. 
 Van Wert v. Benedict, 637. 
 Van Wyck 7-. Seward, 566. 
 Varick r. Smith, 524, 642. 
 Varnarsdall r. Fauntleroy, 80. 
 Varney v. Stenhens, 53. 
 Varnum r. Meserve, 281. 
 Varnum v. Winslow, 59.
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.} 
 
 Varsey v. Stevens, 54. 
 
 Vason f. Ball, 243. 
 
 Vason v. Estes, 301. 
 
 Vaughen v. Haldeman, 16. 
 
 Vaughn v. Todman, 677. 
 
 Vaughn v. Parr, 556. 
 
 Vawter v. Crafts, 256. 
 
 Veal v. Forbson, 556. 
 
 Veal v. Robinson, 494. 
 
 Veazie v. Parker, 582. 
 
 Vedder v. Evarston, 393. 
 
 Veghte v. Rariton, 466, 467. 
 
 Vcghie v. R. VV. P. Co., 435. 
 
 \ cue r. Blodgett, 368. 
 
 Venable v. Beauchamp, 187. 
 
 Vcnoble v. Wabash R. R., 102. 
 
 Verplanck v. Sterry, 566. 
 
 Verdier v. Verdier, 633. 
 
 Vernon v. Smith, 147, 248. 
 
 Vernon v, Vernon, 652. 
 
 Vernor v. Coville, 410. 
 
 Ver Steeg v. Beckermoore, 132. 
 
 Viall v. Carpenter, 433. 
 
 Vickers v. Cowell, 274. 
 
 Vickers v. Leigh, 30. 
 
 Vickery v. Benson, 517. 
 
 Vidal v. Girard, 331, 641. 
 
 Videau v. Griffin, 571. 
 
 Viele v. Tudson, 264, 584. 
 
 Viele ?'. Van Steenburg, 511. 
 
 Viely v. Frankfort, 45. 
 
 Villa v. Rodigues, 234. 
 
 Village of Delphi v. Youmans, 445. 
 
 Villiers v. Villiers, 346, 371. 
 
 Vincent v. Blanton, 557. 
 
 Vincent v. Crane, 160. 
 
 Viner v. Francis, 302. 
 
 Viner v. Vaughan, 64. 
 
 Virgin v. Land, 504. 
 
 Vogel v. Shurtliff, 285. 
 
 Vogely T'. Robinson, 170. 
 
 Vogle t'. Ripper, 256. 
 
 Vogler v. Geiss, 435. 
 
 Volgen r. fates, 329. 
 
 Vollenweeder v. Vollenweeder, 530. 
 
 Von Axte v. Fisher, 298. 
 
 Voorhees v. McGinniss, 13. 
 
 V'oorhies v. Burshard, 606. 
 
 Voorhies v. Freeman, 13, 14. 
 
 Voris r. Renshaw, 202. 
 
 Vosburgh v. Teator, 510. 
 
 Vose v. Dolan, 553. 
 
 Vose v. Handy, 251. 
 
 Voss r. King, 157, 188. 
 
 Vrceland v. Ryno, 637. 
 
 Vroom v. Ditmas, 278. 
 
 Vrooman -'. Shepherd, 498. 
 
 Vrooman v. Turner, 263. 
 
 Vyoyan v. Arthur, 147. 
 
 w 
 
 Wabash R. R. v. McDongal, 590. 
 Waddington v. Bristow. 563. 
 \Vade v. Am. Col. Soc., 641. 
 Wade v. Beldmeir, 267. 
 Wade r. Brown, 558. 
 Wade r. Greenwood, 217. 
 Wade f. Howard, 242, 258. 
 Wade v. Jones, 122. 
 
 Wade v. Lindsey, 559. 
 Wade -v. Paget, 379. 
 Wadleigh v. Janurin, 14. 
 Wadsworth v. Loranger, 233. . 
 VVadsworth v. Williams, 258, 556. 
 Wadsworthville School v. Meetze. 158. 
 Wafer v. Mocato, 209. 
 Wagner v. Breed, 236. 
 Wagner v. Chancy, 445. 
 Wagner r. McDonald, 631, 651. 
 Wagner v. White, 152. 
 Wagstaff v. Lowerne, 384. 
 Wagstaff v. Smith, 348, 361. 
 Wait v. fielding, 30. 
 Wait r. Gove, 495, 497. 
 Wait v. Maxwell, 556, 614. 
 Waiter t'. Hutchinson, 371 
 Wainwright v. Low, 577. 
 Wainwright v. McCullough, 599. 
 Wainwright r. Sawyer, 372. 
 Watt v. Watt, 417. 
 Wake v. Halligan, 143. 
 Wakefield v. Van Tossel, 204. 
 Walburton v. Camp, 373. 
 Walcott v. Hamilton, 170. 
 Walcott v. Sullivan, 261. 
 Walden v. Bodley, 163. 
 Waldrom v. Zacharie, 217, 218. 
 Waldron v. Harvey, 195, 197. 
 Wales r. Mellen, 237. 
 Wales i'. Miller-, 243. 
 .Walker v. Carrington, 368. 
 Walker r. Carroll, 218. 
 Walker v. Crawford, 498. 
 Walker v. Dement, 851. 
 Walker v. Ellis, 164. 
 Walker v. Fitts, 135. 
 Walker v. Furbush, 164. 
 Walker v. Grand Rapids, etc., Co., 15. 
 Walker v. Hall, 647. 
 Walker v. Hill's Ex'rs, 368. 
 Walker v. Snediker, 257. 
 Walker v. Jarvis, i-'75. 
 Walker v. King, 243, 258. 
 Walker v. Paine, 236. 
 Walker -. Pilchard, 298, 408. 
 Walker v. Public Works, 599. 
 Walker v. Quigg, 407. 
 Walker r. Rand, 236. 570. 
 Walker v. Richardson, 156. 
 Walker r. Sharpe, 168. 
 Walker r. Walker. 275, 329. 
 Walker v. Whiting, 365. 
 Walker r. Williams, 198. 
 Walker Ice Co. v. American Steel Co., 
 
 162. 
 
 Wall ?. Club, 594. 
 Wall v. Hinds, 143, 149. 
 Wall r./ Maguire, 393. 
 Wall r. Trumbull, 533. 
 Wall r. Wall, 631. 
 Wallace v. Blair, 242. 
 Wallace v. Bowens, 367. 
 Wallace v. Brown, 533. 
 Wallace v. Coston, 348. 
 Wallace v. Crow, 589. 
 Wallace r. Fee, 001. 
 Wallace ?<. Harmstead, 468, 664. 
 Wallace v. Tohnstone, 231. 
 Wallace r. Kennelly, 156. 
 Wallace r. Latham, 557. 
 
 CXV
 
 TABLE OP CASES -CITED. 
 
 [References are to Sections.} 
 
 Wallace v. Lewis, 667. 
 
 Wallace r. Minor, 306. 
 
 Wallace r. Presb. Church, 606. 
 
 Wallace t. United Pres. Ch., 489, 40. 
 
 Wallace v. Wamwright, 873, 374. 
 
 Wallace f. Wilson, 376. 
 
 Waller f. Martin, 80. 
 
 Waller t. Tate, 239. 
 
 Waller r. Waller, 033. 
 
 Wallcy v. Small, 269. 
 
 Walling r. Aiken, 202. 
 
 \\almcsley v. Jowett, 406. 
 
 Walsh r. Barton, 020. 
 
 Walsh v. Hill, 495. 
 
 Walsh v. McBnde. 867. 
 
 Walsh r. Keis, 121. 
 
 Walsh r. Kutgeis, 246. 
 
 Walsh r. Young, 69, 656. 
 
 Waltemeyer f. Baugman, 496. 
 
 Waltermire r. Westover, 236. 
 
 Walters f. Breden, 609, 027. 
 
 Walters f. Jordan, 98. 
 
 Walters v. Pfeil, 448, 440. 
 
 Walters v. Walters, 87. 
 
 Walthall ;. Rives, 247. 
 
 Walton 7 1 . Ambler, li)3. 
 
 Walton r. Cromley, 139. 
 
 Walton r. Drunura, 33, 49. 
 
 Walton v. Follansbee, 305. 
 
 Walton v. Hargroves, 217, 218. 
 
 Walton v. Waterhouse, 146, 167. 
 
 Walton v. Walton, 648. 
 
 Wai worth v. Jenness, 160. 
 
 Wamganz v. Wollf, 172. 
 
 Wanner v. Wanner^ 202. 
 
 Warbass v. Armstrong, 384. 
 
 Warburton v. Sands, 378. 
 
 Ward r. Armory, 322, 371. 
 
 Ward v. Armstrong, 3G3, 367. 
 
 Ward v. Bartholomew, 509. 
 
 Ward v. Carter, 247. 
 
 Ward v. Cooke, 263. 
 
 Ward v. Crotty, 604. 
 
 Ward v. Deering, 231. 
 
 Ward v. Farmer, 186. 
 
 Ward v. Fogan, 146. 
 
 Ward v. Fuller, 92. 
 
 Ward r. Huhn, 123. 
 
 Ward v. Lewis, 373, 380. 
 
 Ward v. Lumley, 156. 
 
 Ward v. Putnam, 632, 633. 
 
 Wards v. Rapps, 466. 
 
 Ward v. Ross, 677. 
 
 Ward v. Small's Admrs., 578. 
 
 Ward v. Taylor, 13. 
 
 Ward v. Ward, 259, 294. 
 
 Wardell v. Watson, 4. 
 
 Warden v. Adams, 260. 
 
 Warden v. Richards, 376. 
 
 Ward's Exr. v. Hayne, 682. 
 
 Ware v. Bedford, 52. 
 
 Ware v. Polhill, 419. 
 
 Ware v. Ware, 68. 
 
 Ware v. Washington, 86. 
 
 Warfield v. English, 407. 
 
 Waring v. Loder, 248. 
 
 Wark v. Willard, 516. 
 
 Warley v. Warley, 54. 
 
 Warner v. Beach, 647. 
 
 Warner f. Bennett, 207. 
 
 Warner v. Blakeman, 280. 
 
 cxvi 
 
 Warner v. Brooks, 236. 
 
 Warner i: Bull, 559. 
 
 Warner r. Cochrane, 139, 159. 
 
 Warner v. Cushman, 447. 
 
 Warner v. Hitchins, 146. 
 
 Warner r. Steer, 367. 
 
 Warner v. Van Alstyne, 94, 217. 
 
 Warner v. Willard, 31. 
 
 Warner v. York, 242. 
 
 Warren v. Blake, 432. 
 
 Warren v. Coggswell, 592. 
 
 Warren v. Fenn, 217, 218. 
 
 Warren r. Fredericks, 604. 
 
 Warren V. Homestead, 250. 
 
 Warren v. Leland, 4. 
 
 Warren v. Lovis, 229, 232. 
 
 Warren r. Lynch, 552, 572. 
 
 Warren v. Swett, 577. 
 
 Warren v. Warren, 242, 290. 
 
 Warren v. Williams, 80. 
 
 Warriner i'. Rogers, 373. 
 
 Warwick ?'. Bruce, 563. 
 
 Warwick v. Warwick, 632. 
 
 Washabaugh v. Entricker, 511. 
 
 Washband v. Washband, 566. 
 
 Washburn v. Oilman, 444. 
 
 Washburn v. Goodwin, 239. 
 
 Washburn v. Hammond, 266. 
 
 Washburn v. Merrills, 233. 
 
 Washington Nat. Gas Co. v. Johnson, 139. 
 
 Washington Rock Co. v. Young, 590. 
 
 Wasmund v. Harm, 429, 434. 
 
 Wass v. Buchnam, 80. 
 
 Wasson v. Pettis, 146. 
 
 Waterfall v. Peniston, 15. 
 
 Waterman v. Curtis, 244. 
 
 Waterman v. Johnson, 600. 
 
 Waterman T. Smith, 521. 
 
 Waters v. Bishop, 305. 
 
 Waters v. Breden, 201, 202. 
 
 Waters v. Crabtree, 229. 
 
 Waters v. Gooch, 112. 
 
 Waters v. Groom, 279. 
 
 Waters v. Margerson, 410. 
 
 Waters v. Randall, 231, 234. 
 
 Waters T. Stewart, 239. 
 
 Waters v. Young, 168. 
 
 Waters' Estate v. Bagley, 624. 
 
 Watkins v. Edwards. 582. 
 
 Watkins v. Gregory, 230. 
 
 Watkins v. Holman, 34, 528. 
 
 Watkins v. Koolin Mfg. Co., 243. 
 
 Watkins v. Lynch, 495. 
 
 Watkins v. Nugent. 204. 
 
 Watkins v. Vrooman, 228. 
 
 Watron v. Blair, 586. 
 
 Watson v. Cressy, 543. 
 
 Watson v. Dickens, 243. 
 
 Watson v. Dundee Mortgage, etc., Co., 
 
 261, 582. 
 
 Watson v. Foxon, 304. 
 Watson v. Harrigan, 296. 
 Watson v. Hipes. 633. 
 Watson v. Hunter, 68. 
 Watson v. Manard, 495. 
 Watson v. Menter, 7. 
 Watson v. O'Hern. 135. 
 Watson T. Pipes, 633. 
 Watson 7'. Spence, 243. 
 Watson v. Sutro, 195, 406. 
 Watson v. Thompson, 368.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Watson v. Watson, 109, 294. 
 
 Watson v. Wells, 217. 
 
 Watt v. Watt, 273. 
 
 Watterson v. Ury, 210. 
 
 Watts v. Ball, 79. 
 
 Watts v. Bonner, 255. 
 
 Watts v. Coffin, 245. 
 
 Watts v. Julian, *73. 
 
 Watts v. Miller, 124. 
 
 Watts v. Owens, 495. 
 
 Way v. Arnold, 514. 
 
 Way v. Reed, 143, 148. 
 
 Way v. Scott, 126. 
 
 Way v. Way, 15. 
 
 Wayman v. Jones, 252, 284. 
 
 Wead i'. Larkin, 6i4. 
 
 Weale v. Lower, 297. 
 
 Weare v. Linnell, 307. 
 
 Weart r. Cruser, 39. 
 
 VVeatherhead v, Stoddard, 301. 
 
 Weatherly v. Wood, 63. 
 
 Weathersley v. Weathersley, 251. 
 
 Weaver v. Belcher, 245. 
 
 Weaver v. Emigrant, etc., Sav. Bank, 
 
 374. 
 
 Weaver v. Spurr, 373. 
 Webb v. Fleming, 633. 
 Webb v. Garrett, 123. 
 Webb *. Haselton, 253. 
 Webb v. Homken, 565. 
 Webb v. Mulins, 554, 567. 
 Webb v. Patermoster, 465. 
 Webb v. Robbins, 433. 
 Webb v. Robinson, 217. 
 Webb v. Trustees, etc., Baptist Church, 
 
 78. 
 
 Webb v. Walters, 591. 
 Webber v. Axtell, 489. 
 Webber v. Shearman, 164. 
 Weber v. Harbor Commrs., 598. 
 Weber v. Weber, 361. 
 Webster v. Boddington, 399. 
 Webster v. Calden, 240. 
 Webster v. Calef, 191. 
 Webster v. Chicago, 533. 
 Webster v. Conley, 144. 
 Webster v. Cooper, 207, 322. 
 Webster v. Ellsworth, 310. 
 Webster v. Oilman, 638. 
 Webster v. Peet, 63. 
 Webster v. Potter, 9, 606. 
 Webster v. Vandeventer, 176, 273. 
 Webster v. Webster, 57. 
 Webster v. Welton, 388. 
 Weddell v. Hapner, 445. 
 Wedderburn v. Wedderburn, 368. 
 Wedekind v. Hallenberg, 301, 321. 
 Wedge v. Moore, 87, 92. 
 Weed v. Coville, 236. 
 Weed v. Crocker, 136. 
 Weed Sewing Machine Co. v. Emerson, 
 
 253, 257. 
 
 Weekland v. Cunningham, 608. 
 Weeks v. Cornwell, 640. 
 Weeks v. Martin, 494, 592. 
 Weeks v. Ostrander, 242. 
 Weeras v. McCauehan, 623. 
 Weers v. Rademacner, 367. 
 Wegg v. Villers, 358. 
 Weichelsbaum v. Corlett, 157. 
 Weide v. Gehl, 229. 
 
 Weideineger v. Landon, 283. 
 
 VV'eidekin i: Snelson, 445. 
 
 Weideman v. Pech, 249. 
 
 Weil v. Uzzett, 275. 
 
 Weinreich v. Weinreich, 202. 
 
 Weinstein v. Harrison, 146, 151. 
 
 Weinstein v. Weber, 403. 
 
 Weir v. Field, 273. 
 
 Weir -v. Fitzgerald, 633. 
 
 Weir v. Simons, 205. 
 
 Weir v. Tate, 86. 
 
 Weisbrod v. C. & N. N. R. R., 601. 
 
 Weiser v. Weiser, 199. 
 
 Weishaupt v. Brehman, 642. 
 
 Weisinger v. Murphy, 186. 
 
 Welborn v. Anderson, 494. 
 
 Welborn v. Dixon, 233. 
 
 Welborne v. Dowing, 127. 
 
 Welch v. Adams, 245, 633. 
 
 Welch v. Agar, 195. 
 
 Welch v. Allen, 371. 
 
 Welch v. Anderson, 118. 
 
 Welch v. McKenzie, 86. 
 
 Welch v. Phillips, 603. 
 
 Welch v. Welch, 72. 
 
 Weld v. Bradbury, 388. 
 
 Weld v. Traip, 617. 
 
 Wetland Canal vl Hathaway, 508. 
 
 Wellington v. Gale, 239. 
 
 Wellington v. Janvrin, 204. 
 
 Wells, v. Bealf, 108. 
 
 Wells v. Castles, 151. 
 
 Wells v. Chapman, 187. 
 
 Wells v. Company, 603. 
 
 Wells v. Harter, 217, 218. 
 
 Wells v. Heath, 371. 
 
 Wells v. Jackson Mfg. Co., 493, 595. 
 
 Wells v. Leeley, 298. 
 
 Wells v. Lewis, 378. 
 
 Wells v. Morrow, 219, 580. 
 
 Vvells v. Seeley, 471, 637. 
 
 Wells v. Sheerer, 135, 157. 
 
 Wells v. Wells, 648. 
 
 Welsh v. Beers, 289. 
 
 Welsh v. Buckings, 96. 
 
 Welsh v. Chandler, 77. 
 
 Welsh v. Cooley, 278. 
 
 Welsh v. Phillipps, 250. 
 
 Welsh v. Sackett, 576. 
 
 Welsh v. Solenberger, 83. 
 
 Welsh v. Usher, 215. 
 
 Wendell v. Crandall, 303. 
 
 Wendell v. Fisher, 510. 
 
 Wentworth v. Philpot, 431. 
 
 Wenzel v. Weigland, 232. 
 
 Weiner v. Tuch, 256. 
 
 Wescott r. Delano, 4, 466. 
 
 West v. Adams, 245. 
 
 West v. Bernly, 405. 
 
 West v, Hayes, 269. 
 
 West v. Hendrix, 231. 
 
 West v. Hughes, 521. 
 
 West v. Reynolds, 310. 
 
 West v. Stewart, 500, 619. 
 
 West v. West, 195. 
 
 West Coast Mfg. & Inv. Co. v. West 
 
 Coast Imp. Co., 625. 
 West Point Iron Co. v. Reymert, 608. 
 West River Bridge Co. t/. Dix, 456. 
 West Roxbury v. Stoddard, 600. 
 West Shore Co. v. Wenner, 148. 
 
 cxvii 
 
 V
 
 TABLE OP CASES CITED. 
 
 [References arc to Sections.] 
 
 \Vct Trtnsp. Co. r. Lansing, 130, 147. 
 Wesibrook f. Gleason, 585. 
 Westerly Sav. Bank r. Stillman, 228. 
 \\cstern N. Y., etc., R. R. Co. t. Rich- 
 ards. 609. 
 
 Western R. R. r. Babcock, 577. 
 Westervclt r. People, 1. 
 Westmoreland t. Carson, 590. 
 U .Miiioreland Nat. Gas Co. v. De Witt, 
 
 60S. 
 
 Wcston r. Woodcock, 18. 
 Wetherington r. Williams, 190. 
 Wetherly r. Strauss, 120. 
 Wettlanfer r. Ames, 85. 
 Weyand f. Tipton, 529. 
 Wctyen f. Pick, 85. 
 \\ halcy r. Cadman, 122. 
 Whalin r. White, 157, 275. 
 Whaling Co. r. Borden. 185. 
 \\ bailey r. Thompson, 006. 
 Wharf r. Howell, 230. 
 Wharton v. Wharton, 38. 
 Whatley v. Small, 584. 
 Whatman p. Gibson, 433. 
 Whayne r. Morgan, 120. 
 Wheatlcy r. Barker, 45. 
 Wheatley v. Calhoun, 80. 
 Whcaton P. East, 014. 
 Wheelcock r. Thayer, 015. 
 Wheeler r. Bates, 491. 
 Wheeler v. Brown, 008. 
 Wheeler v. Dascombe, 148. 
 Wheeler v. Durant, 031. 
 Wheeler v. Earl, 148. 
 Wheeler v. Gage, 126. 
 Wheeler P. Kirkendall, 59. 
 Wheeler p. Kirtland, 583. 
 Wheeler v. Monteflore, 131. 
 Wheeler v. Reynolds, 368. 
 Wheeler T'. Smith, 99, 373. 
 Wheeler v. Sohier, 624. 
 Wheeler r. Spinola, 504, 600. 
 Wheeler v. Walker, 201. 
 Wheeler v. Wayne Co., 619, 620. 
 Wheeler v. Wheeler, 647. 
 
 Wheeler & Wilson Co. f. Howard, 278. 
 
 Wheelwright P. Freeman, 275. 
 
 Whelon v. Reilly, 280. 
 
 Whetsel v. Roberts, 217. 
 
 Whetstine r. Wilson, 653. 
 
 Whetstone v. Bury, 343. 
 
 Whilton v. Whilton, 178, 593. 
 
 Whipple v. Foot, 4, 529. 
 
 Whipple P. Whipple, 498. 
 
 Whitaker r. Brown, 008. 
 
 Whitaker r. McBride, 507. 599. 
 
 Whitaker v. Summer, 529. 
 
 Whitaker p. Whitaker, 576. 
 
 Whitaker 7'. Williams, 510. 
 
 Whitbeck r. Cook. 615, 617. 
 
 Whitbread ex parte, 213. 
 
 Whitby v. Duffy, 009. 
 
 Whitcomh r. Cardell, 373. 
 
 Whitcomb p. Simpson, 254. 
 
 White r. Bailey, 579. 
 
 White T. Barlow, 600. 
 
 White r. Brocaw, 512, 622. 
 
 White r. Brown. 248. 
 
 White r. O-srnave's Heirs, 217. 
 
 White r. Connelly. !J74. 
 
 White r. Cutler. 57. 
 
 cxviii 
 
 White v. Danforth, 123. 
 White v. Dedman, 84. 
 White v. Denman, 260, 583. 
 White f. Dresser, 448. 
 White v. Drew, 368. 
 White v. Downs, 219. 
 White p. Elwell, 466. 
 White v. Foster, 584, 608. 
 White P. Fox, 02, 08. 
 White v. Fulghum, 120. 
 White v. Fuller, 559. 
 White v. Godfrey, 601. 
 White v. Hampton, 375. 
 White v. Hicks, 640. 
 White p. Hopernan, 497. 
 White p. Hopkins, 631. 
 White p. Howard, 638. 
 White v. Hulme, 73. 
 White v. Hunt, 140. 
 White v. Livingstone, 135. 
 White v. McMillan, 236. 
 White v. Montgomery, 161. 
 White v. Moore, 480. 
 White -v. Moses, 528. 
 White v. Patten, 511, 582. 
 White v. Rittenmeyer, 239, 250. 
 White v. Rukes, 562. 
 White v. Sheldon, 447. 
 White v. Smith, 243. 
 White v. Stanfield, 401. 
 White v. Stevens, 2(>4. 
 White v. Stevenson, 236. 
 White v. Story, 105. 
 White v. Sutherland, 253. 
 White -v. Thurber, 144. 
 White v. Wagner, 66. 
 White v. White, 52, 113. 
 White v. Whitney, 2o-'. 
 White v. Williams, 218, 603. 
 
 White v. Woodbury, 30. 
 Whitehead v. Clifford, 156. 
 Whitehead v. Comstock Co., 146. 
 Whitehead v. Hellen, 279. 
 
 Whitehead v. Middleton, 87. 
 Whitehead v. Slonor, 180. 
 Whitehead v. Whitehead, 282, 377. 
 Whitehead v. Woolen, 245. 
 
 Whitely v. McLaughlin, 161. 
 
 Whitemarsh v. Walker, 467. 
 
 Whitenack v. Stryker. 033. 
 
 White's Bank of Buffalo p. Nichols, 433. 
 
 Whitesides r. Whitesides, 640. 
 
 Whitewater Canal z : . Comegys, 68. 
 
 Whiting v. Whiting, 498. 
 
 Whitley v. Davis, 572. 
 
 Whitmarsh v. Cutting, 59. 
 
 Whitmarsh v. Walker, 16, 58. 
 
 Whitmire r. Wright, 86. 
 
 Whitmore P. Learned, 367. 
 
 Whitmore r. Paper Co., 161. 
 
 Whitney v. Allaire, 131. 
 
 Whitney v. Allen, 275. 
 
 Whitney v. Buckman, 236. 
 
 Whitney v. Dewey, 605. 
 
 Whitney v. Dinsmore. 610. 
 
 Whitney v. French. 226. 
 
 Whitney v. Kindell. 195. 
 
 Whitney r. Ms*aH. 532. 
 
 Whitney r. MrKinney. 253, 274. 
 
 Whitney r . Mfc. Co.. 255, 266. 
 
 Whitney r. Myers, 156.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.} 
 
 Whitney v. Olney, 606. 
 
 Whitney t/. Parker, 197. 
 
 Whitney v. Raynor, 246. 
 
 Whitney v. Slater, 300. 
 
 Whitney v. Traynor, 253. 
 
 Whitney v. Wheeler Cotton Mills, 447, 
 
 435. 
 
 Whitstone i: McCartney, 143. 
 Whittaker v. Hawley, 151. 
 Whittaker v. Hicks, 177. 
 Whittaker v. Miller, 577. 
 Whittaker v. Perry, 173. 
 Whittaker v. Whittaker, 301. 
 Whittemore v. Russell, 40r. 
 Whittier v. Dow, 275. 
 Whittier v. Winkley, 439. 
 Whittington v. Clark, 572. 
 Whittington v. Wright, 495. 
 Whittlesey v. Fuller, 183. 
 Whittlesey v. Hughes, 282. 
 Whitton v. Whitton, 71, 76. 
 Whitworth r. Gangain, 214. 
 Whitworlh v. McKee, 121. 
 Wholey v. Cavanaugh, 547. 
 Wibb v. Richardson, 504. 
 Wickham v. Hawker, 465. 
 Wigg v. Davis, 266. 
 Wiggin v. Heyward, 239. 
 Wiggins v. Perkins, 640. 
 Wilbraham v. Snow, 190. 
 Wilbur v. Grover, 577. 
 Wilcox v. Jackson, 579. 
 Wilcox v. Smith, 497. 
 Wilcox v. Wheeler, 30. 
 Wilcoxson v. Miller, 583. 
 Wilcoxson v. Sprague, 567. 
 Wild v. Deig, 525. 
 Wild v. Traip, 132. 
 Wilde v. Armsby, 554. 
 Wilder v. Butterfield. 583. 
 Wilder v. Davenport, 594, 626. 
 Wilder v. Houghten, 245, 272. 
 Wilder v. Ireland, 615. 
 Wilder v. St. Paul, 435. 
 Wilder v. Thayer. 647. 
 Wilder v. Wheeler, 30. 
 Wilder v. Whittmore, 237. 
 Wilder's Exec. v. Wilder. 300. 
 Wildey v. Barney's Lessee, 193. 
 Wilds v. Toms, 85. 
 Wild's Lessee v. Serpell, 157, 158. 
 Wiley v. Ewing, 255. 
 Wiley v. Pierson, 274. 
 Wiley v. Wiley, 67. 
 Wilford v. McKinna, 593. 
 Wilhoit T. Salmon, 576. 
 Wilhoit v. Tubbs, 505. 
 U'ilkerson r. Clark, 321. 
 Wilkerson r. Thompson, 498. 
 Wilkes v. Back. 569. 
 Wilkes T. Holmes, 417. 
 Wilkes v. Lion. 296, '393. 
 Wilkesbarre r. Historical Soc., 80. 
 Wilkins v. French, 241. 
 WOkins v. Wells. 573. 
 Wilkins v. Wilkins, 273. 
 Wilkinson v. Flowers. 245. 
 Wilkinson v. G'.tty, 669. 
 V( 'itkinson v. Leland, 520, 638. 
 Wilkinson T. Mann. 3SO. 
 Wilkinson i/. Parrish, 86. 
 
 Wilkinson v. Scott, 565. 
 
 Wilkinson v. Sherman, 305. 
 
 Wilkes v. Vaughn, 283. 
 
 Willard v. Eastham, 558. 
 
 Willard v. Finnegan, 255, 275, 
 
 Willard v. Harvey, 254. 
 
 Willard v. Henry, 207. 
 
 Willard v. Reas, 217. 
 
 Willard v. Willard, 105. 
 
 Willard v. Wood, 253. 
 
 Willes v. Loomis, 191. 
 
 Willet v. Beatty, 90. 
 
 Willett v. Johnson, 251. 
 
 VVillett v. Sanford, 342. 
 
 Willett v. Winnelly, 225. 
 
 Willetts v. Burgess, 234. 
 
 Willett's Admr. r. Rutter's Admr., 301. 
 
 Willford v. Heimhoffer, ]C5. 
 
 Williams v. Angell, 206, 321. 
 
 Williams v. Baker, 515, 574. 
 
 Williams v. Balton, 8. 
 
 Williams v. Beard, 585. 
 
 Williams v. Beekman, C25. 
 
 Williams v. Bosanquet, 139. 
 
 Williams v. Brownlee, 242. 
 
 Williams v. Bryant, 562. 
 
 Williams v. Burnett, 632. 
 
 Williams v.. Burrell, 147. 
 
 Williams v. Cash, 498. 
 
 Williams v. Caston, 53. 
 
 Williams v. Christian, 219. 
 
 Williams v. Dakin, 208. 
 
 Williams v. Davis, 566. 
 
 Williams v. Deriar, 167. 
 
 Williams v. Dwindle, 380. 
 
 Williams v. Flood, 466. 
 
 Williams v. Garrison, 157. 
 
 Williams v. Gibson, 5. 
 
 Williams v. Hilton, 269, 274. 
 
 Williams v. Ins. Co., 248. 
 
 Williams v. James, 438. 
 
 Williams v. Lewis, 393. 
 
 Williams v. Luizee, 533. 
 
 Williams v. McKinney, 31, 640. 
 
 Williams v. Moreland, 444. 
 
 Williams v. Owen, 231. 
 
 Williams v. Pearson, 641. 
 
 Williams v. Peyton's Lessee, 532. 
 
 Williams v. Rice, 219. 
 
 Williams r. Robinson, 245. 
 
 Williams v. Silliman, 236. 
 
 Williams v. Sorrel], 250. 
 
 Williams v. Stratton, 215. 
 
 Williams v. Sullivan. 577. 
 
 Williams v. Tatnall. 260. 
 
 Williams v. Thurlow, 254. 
 
 Williams v. Townsend, 272. 
 
 Williams v. Triche, 8. 
 
 Williams v. Vreeland, 368. 
 
 Williams v. Wescott, 86. 
 
 Williams v. Whitaker. .124. 
 
 Williams v. Williams. 301, 583. 
 
 Williams v. Woods. 90, 217. 
 
 Williams v. Worthington, 373. 
 
 Wjlliamson v. Beekharn, 73. 
 
 Williamson v. Carleton, 545. 
 
 Williamson v. Champlin. 276. 
 
 Williamson v. Daniel, 397. 
 
 Williamson v. Field. 207, 301. 
 
 Williamson v. Jones. 64. 
 
 Williamson v. New Albany R Co. 245. 
 
 cxix
 
 TABLE OP CASES CITED. 
 
 [Kcfcretices are to Section*.] 
 
 Williamson r. N. J. Southern, 2. 
 
 Williamson r. Stone, 278. 
 
 Williamson : . Test, 622. 
 
 Williamson t. Wilkins, 381. 
 
 Williamson :. Williamson, 321. 
 
 Williamson f. Yager, 70. 
 
 Williamston R. R. r. Dattle, 467. 
 
 Willink r. Morris Canal, 238. 
 
 Wilhon r. Burkley, 2<JS. 
 
 Willis r. Farley, 251. 
 
 Willis f. Harrell, 1(5'.', 164. 
 
 Willis f. Hiscox, 204. 
 
 Willis r. Jenkins, 64U. 
 
 Willis f. Loomis, 19S. 
 
 Willis f. Mike, 126. 
 
 Willis r. Watson, 471. 
 
 Willison r. Watkins, 158. 
 
 Willot r. Sanford, 521. 
 
 Willoughby v. Horridge, 456. 
 
 Willougbby v. Motley, 4S2. 
 
 Wills t. Reid, 439. 
 
 Wills v. Wills, 301. 
 
 Wilmarth f. Bancroft, 203. 
 
 Wilmarth v. Johnson, 269. 
 
 Wilmers v. Robinson, 49. 
 
 Wilmington & W. R. Co. v. Alsbrook, 2. 
 
 Wilmoth v. Gassett, 123, 127. 
 
 Wilms v. Jess, 5, 448. 
 
 Wilsey v. Dennis, 576, 578. 
 
 Wilson r. Albert, 247, 547. 
 
 Wilson v. Beddard, 632. 
 
 Wilson r. Bell, 532. 
 
 W r ilson r. Bennett, 569. 
 
 Wilson v. Braden, 574. 
 
 Wilson v. City of Bedford, 445. 
 
 Wilson r. Cochrane, 614. 
 
 Wilson r. Craig, 98. 
 
 Wilson f. Daniels, 127. 
 Wilson v. Davisson, 231. 
 Wilson V. Delaplainc, 149. 
 Wilson v. Edmunds, 66. 
 Wilson r. Fleming, 183. 
 Wilson t. Forbes, 599, 614. 
 Wilson v. Forlset, 647. 
 Wilson v. Frost, 294. 
 Wilson 7'. Gadient, 247. 
 Wilson v. Gaines, 408. 
 Wilson v. Hill, 248, 518. 
 Wilson v. Kelly, 480. 
 Wilson f. King, 253. 
 Wilson r. Langhorne, 307. 
 Wilson v. Lyon, 217. 
 Wilson r. Malthy, 265. 
 Wilson v. Martin, 135. 
 Wilson v. McEwan, 493. 
 Wilson v. McLenaghan, 101. 
 Wilson v. Moore, 221. 
 Wilson v. Odell, 642. 
 Wilson v. Patrick, 231. 
 Wilson f. Piper, 463. 
 Wilson v. Rodeman, 168. 
 Wilson r. Russell, 236, 263. 
 Wilson v. Shoenberger, 229, 588. 
 Wilson v. Schoenlamb, 257. 
 Wilson r. Smith, 153, 582. 
 Wilson v. Treadwell, 146. 
 Wilson v. Troup, 250, 404. 
 Wilson v. Towle, 875. 
 Wilson v. Watkins, 157. 
 Wilson v. Weidenham, 628. 
 Wilson v. Welch, 599. - 
 
 cxx 
 
 Wilson r. White, 242, 392. 
 
 Wilson v. Williams, 495. 
 
 Wilson v. Wilson, 269, 393. 
 
 Wilson v. Wood, 168. 
 
 Witt v. Franklin, 329. 
 
 Wilthaus v. Schack, 118. 
 
 Wilton v. Mayberry, 2C4. 
 
 Wiltshire v. Sidford, 450. 
 
 Wimple v. Fonda, 29S. 
 
 Winans v. Peebles, 665. 
 
 Winant v. Hines, 156. 
 
 VVinborne v. Downing, 30, 613. 
 
 \Vinchelsea v. .Wentworth, 356. 
 
 Winder v. Little, 113. 
 
 Windham v. Portland, 85. 
 
 Windsor v. Simpkins, 195. 
 
 Winestein v. Marks, 558. 
 
 Winfield 7-. Ilenning, 626, 433. 
 
 Wing v. Cooper, 222, 277. 
 
 Wing v. Goodman, 219. 
 
 Wing v. Gray, 16. 
 
 Wing v. McDowell, 262. 
 
 Wingcrtcr v. Wingerter, 368. 
 
 Winkficld v. Brinkman, 3G8. 
 
 Winkleman v. Winkleman, 126. 
 
 Winn r. Abells, 497. 
 
 Wjnn v. Cabot, 592. 
 
 Winn r. Littleton, 241. 
 
 Winnepesaukee, etc., Assn. v. Gordon, 
 
 433. 
 
 Winningham v. Pennock, 616. 
 Winshectcr v. Keith, 85. 
 Winship v. Pitts, 66. 
 Winslow v. Chiffelle, 185. 
 Winslow v. Clark, 266. 
 Winslow v. Kimball, 634. 
 Winslow v. King, 601. 
 Winston v. Burrell, 203. 
 Winston f. Johnson, 608. 
 Winter v. Brockwell, 435, 467. 
 Winter v. Peterson, 601. 
 \Vinterbottom v. Ingham, 166. 
 Winters v. Davis, 125. 
 Winters v. De Turk, 85. 
 Wisconsin Ag. Co. v. McKenna, 579. 
 Wisdom v. Newberry, 146. 
 Wise v. Griffith, 273. 
 Wiseman v. Luckinger, 465. 
 Wiswall f. Ross, 573. 
 Witezieski v. Everman, 263. 
 Withers v. Baird, 574. 
 Withers v. Jenkins, 76, 125. 
 Withers v. Larrabee, 164. 
 Withers v. Sims, 301. 
 Withers v. Withers, 367. 
 Wjtherspoon f. Dunlap, 192. 
 Withington r. Warren, 675. 
 Withnell r. Petzold, 164. 
 Withy v. Munford, 614, 624. 
 Witman v. Lex, 641. 
 \Vitt v. Harlan, 674, 590. 
 Witt v. Mayor of New York, 167. 
 'Vitte -v. Quenn, 168. 
 Witter v. Harvey, 601. 
 Wittington v. Clarke, 672. 
 Woerz v. Rademacher, 406. 
 Wofford v. McKinna, 532, 590. 
 Wolcott v. Sullivan, 250. 
 Wolcott v. Winchester, 251. 
 Wolcott v. Wolcott, 207. 
 Wolf v. Frost, 465.
 
 TABLE OF CASES CITED. 
 
 [References are to Sections.] 
 
 Wolf v. Johnson, 157. 
 
 Wolfe v. McMillan, 231. 
 
 Wolfe v. Van Nostrand, 393. 
 
 Wolfer r. Hemmer, 298. 
 
 Wolford v. Farnum, 374. 
 
 VVolford v. Herrington, 368. 
 
 Wollaston v. Hakewell, 139. 
 
 Wolverton v. Collins, 577. 
 
 Womack v. Womack, 556. 
 
 Wood v. Appal, 598. 
 
 Wood v. Augustine, 236. 
 
 Wood v. Boyd, 608. 
 
 Wood v. Bryant, 195. 
 
 Wood f. Camden, etc., Tr'ust Co., 
 
 Wood v. Chambers, 566. 
 
 Wood v. Cochrane, 574. 
 
 Wood v. Farmere, 582. 
 
 Wood v. Felton, 271. 
 
 Wood v. Ferguson, 521. 
 
 Wood v. Fleet, 193, 197. 
 
 Wood v. Goodridge, 571. 
 
 Wood v. Griffin, 66. 
 
 Wood v. Hilderbrand, 554. 
 
 Wood v. Holland, 275. 
 
 Wood v. Hubbell, 132. 
 
 Wood v. Kelly, 600. 
 
 Wood v. Kice, 45. 
 
 Wood v. Leadbitter, 466. 
 
 Wood v. Little, 197. 
 
 Wood v. Mann, 530. 
 
 Wood v. Mason, 301. 
 
 Wood v. Mobile, 291. 
 
 Wood v. Moorhouse, 273. 
 
 Wood r. Oakley, 273. 
 
 Wood v. Page, 169, 170. 
 
 Wood v. Reeves, 238, 259. 
 
 Wood v. Robertson, 30. 
 
 Wood v. Sugg, 195. 
 
 Wood v. Wood, 98, 649. 
 
 Woodbridge v. Wilkins, 105. 
 
 Woodbury v. Fisher, 576. 
 
 Woodbury v. Luddy, 127. 
 
 Woodbury v. Parshlly, 467. 
 
 Woodbury v. Woodbury, 166. 
 
 Woodman v. Good, 380. 
 
 Woodman v. Smith, 606. 
 
 Woodrief v. Wester, 300. 
 
 Woodruff v. Adams, 10. 
 
 Woodruff v. Robb, 282. 
 
 Woods v. Bailey, 217. 
 
 Woods v. Banks, 494. 
 
 Woods v. Freeman, 533. 
 
 Woods v. North, 514, 614. 
 
 Woodward v. Brown, 163. 
 
 Woodward v. Conder, 160. 
 
 Woodward v. Gates, 62, 68. 
 
 Woodward Homes Co. . Mudd, 86. 
 
 Woodward v. James, 640. 
 
 Woodward v. McReynolds, 498. 
 
 Woodward v. Seaver, 558. 
 
 Woodward v. Sibert, 367. 
 
 Woodward v. Woodward, 217, C44 
 
 Woodworth v. Paige, 97. 
 
 Wool v. Fleetwood, 640. 
 
 Wool v. Walbridge, 156. 
 
 Woolcut v. Lerdell, 127. 
 
 Woolery v. Woolery. 648. 
 
 Wooley v. Paxton, 640. 
 
 Woolf v. Barnes. 369, 376. 
 
 Wool ford v. Granttville, 227. 
 
 Woolley v. Schrader, 191. 
 
 373. 
 
 Woollsey v. Morss, 498. 
 
 Woolridge v. Wilkins, 86, 94. 
 
 Woolsey v. Bohn, 264. 
 
 Woolsey v. Donnelly, 168. 
 
 Woolsey v. Henke, 549. 
 
 Woolston v. Woolston, 415. 
 
 W r oolworth v. Root, 498. 
 
 Wooster v. Hunt's Lyman Iron Co., 85. 
 
 Worcester v. Georgia, 485, 519. 
 
 Worcester v. Lord, 497. 
 
 Worcester v. Worcester, 302. 
 
 Worcester City Mission. Soc. v. Menich, 
 
 641. 
 
 Workman v. Greening, 233. 
 World Bld'g Co. v. Martin, 59. 
 Worrall v. Munn, 579. 
 Worrill v. Wright, 397. 
 Worthington v. Grimson, 427. 
 Worthington v. Hewes, 626. 
 \Vorthington v. Hylyer, 590. 
 Worthington v. Lee, 273, 274. 
 Wragg v. Comptroller Gen., 217. 
 Wren v. Parker, 495. 
 Wrenbrenner v. Weisinger, 126. 
 Wrenn v. Gibson, 197. 
 Wright v. Barlow, 411. ' 
 
 Wright v. Barrett, 631. 
 Wright v. Bates, 235. 
 Wright v. Brown, 73. 
 Wright v. Burroughs, 207. 
 Wright v. Cartwright, 357. 
 Wright v. City of Council Bluffs, 487. 
 Wright v. Dame, 217. 
 Wright v. DeGroff, 100. 
 Wright v. Douglass, 583. 
 Wright v. Duffield, 220. 
 Wright v. Eaves, 247, 250. 
 Wright v. Herron, 78. 
 Wright v. Holbrook, 28ft. 
 Wright v. Howard, 429. 
 Wright v. Howell, 566. 
 
 Wright v. 
 Wright v. 
 Wright 
 
 Jennings, 116. 
 ones, 193. 
 
 \v iixiii v. Lattin, 153. 
 Wright f. Lewis, 633. 
 Wright v. Parker, 251. 
 Wright v. Roberts, 166. 
 Wright v. Rose, 239. 
 Wright v. Shaw, 512. 
 Wright v. Shelby, 579. 
 Wright v. Sperry, 247. 
 Wright v. Stevens, 308. 
 Wright v. Straub, 125. 
 Wright v. Swan, 521. 
 Wright v. Tallmadge, 404. 
 Wright v. Tichenor, 494. 
 Wright r. Wakeford, 411. 
 Wright v. Westbrook, 52, 408. 
 Wright v. Wright, 385, 404. 
 Wyatt v. Burwell, 684. 
 Wyatt v. Harrison, 448. 
 Wyatt v. Stewart, 229, 260. 
 Wyble v. McPheters, 373. 
 Wyeth v. Stone, 640. 
 Wyman v. Babcock, 247. 
 Wyman v. Ballard, 625. 
 Wyman v. Briglen, 85. 
 Wyman v. Brown, 236, 245. 
 Wyman v. Simmes, 634. 
 Wyndham v. Way, 68. 
 Wyandotte Co. v. Evans, 272. 
 
 cxxi
 
 TABLE OF CASES CITED. 
 
 [References arc to Sections.] 
 
 U'ynehamer r. People, 1. 
 \\ynkoop r. Burger, 435. 
 \Vynkoop f. Cowing, 233, 234. 
 \\yilie :. ThurUtun, 412. 
 
 Xenos f. \Yickham, C70. 
 
 Yalt f. Dcdercr, 558. 
 Yanccy f. Mauck, 217. 
 Yanccy r. Radford, 51-'. 
 Yanccy f. Smith, UN 
 \anues .. \\right, 4JS. 
 Yarborough r. Newell, 228, 24 
 Yarnold r. Moorchouse, 140. 
 Yarwood >: Johnson, 187. 
 S'alcs r. Astcn, 236. 
 Yatcs r Crompton, 407, 410. 
 Yatcs t Kinney, 160. 
 Yatcs ' McKibben, 123. 
 \ates : Milwaukee, 598. 
 Yates z Shaw, 596. 
 Yayan . Shriner, 217. 
 Ycntcs r. Gill, 642. 
 Yc.iton ;. Roberts, 296, 388. 
 \V;!vcrton .f. Steele. 493. 
 S'crby f. Yerby, 647. 
 Yingling f. Redwine, 243. 
 Yock f. Mann, 509. 
 Yocum -. Lovell, 126. 
 Yocum t: Porter, 629. 
 Yocum r. Siler, 40, 211. 
 York f. Stone. 177, 187. 
 Yost f. Graham, 1. 
 Youle f. Richards, 234. 
 Young f. Boardman, 118, 119. 
 Young -. Collett, 153. 
 Young r. De Bruhl, 179. 
 
 cxxii 
 
 Young f. Droz, 512. 
 Wung f. Ellis, 17, 468. 
 Young v. Gay, 14S, 208. 
 Younge f. Gnbcau, 5 TO. 
 Young r. Grieb, 492. 
 Younge -. Guilbeau, 576, 578. 
 Young r. Miller, 250, 251. 
 Young r. Morehead, 86. 
 Young 7 1 . Omohundro, 269. 
 Young v. Ringo, 565. 
 Young v. Robinson, 642. 
 Young r. Sheldon, 74. 
 Young r. Tarbell, 87. 
 Young f. Wood, 218. 
 Young 7'. Young, 262, 373. 
 Youngblood t'. Vastine, 582. 
 Youngman r. Elmira, 282. 
 Youngman r. R. R. Co.. 243. 
 
 Zabrjskie v. Bandistel, 30. 
 
 Zabriskie's Exrs. r. Wetniore, 380. 
 
 Xapp v. Strohmeyer, 122. 
 
 Xaver f. Lyons, 373. 
 
 Xeigler r. Grim, 195. 
 
 Zciswiss r. James, 638. 
 
 Zeller v. Eckert, 158, 247. 
 
 Zcntmeyer r. Mittower, 217. 
 
 Zieschang v. Helmke, 217. 
 
 Zimnier v. Sennott, 373. 
 
 Zimmerman v. Anders, 638. 
 
 Zincleo v. Franklinite, 4. 
 
 Zink i'. Bohn, 134. 
 
 Zoll T. Carnahan, 253. 
 
 Zollinger r. Dunaway, 123. 
 
 Zonch v. Parsons, 558. 
 
 Zuver -. Lyons, 233. 
 
 Zweible v. Myers, 559. 
 
 Zwerneau f. Von Rosenburg, 121.
 
 THE LAW 
 
 OF 
 
 REAL PROPERTY. 
 
 PART I. 
 
 CHAPTER I. 
 
 REAL PROPERTY. 
 
 SECTION 1. What is real property. 
 
 2. What is land. 
 
 3. Elements composing. 
 
 4. Double ownership in land. 
 
 5. Incidents of dual ownership. 
 
 6. Lands, tenements and hereditaments. 
 
 7. Emblements. 
 
 8. Trees. 
 
 1. What is real property. In the English common law, 
 property is divided into two classes, real and personal. 
 Real property is such as has the characteristic of immobility 
 or permanency of location, as lands and rights issuing out of 
 land. 1 Personal property is every species of property which 
 
 i The simple, yet expressive, definition of the text is best appreciated, 
 after comparison wkh other definitions of different authorities upon the 
 subject. (Editor.) While technically true that real property, of real 
 estate, as applied in the law, is usually limited, in the legal acceptation 
 of the term, to estates in fee, or for life in land only, a mere description 
 of the estate which may exist therein is not sufficiently broad to define 
 the term "real property." See 3 Kent's Com. (12 ed.) 401, p. 529. 
 
 1
 
 2 REAL PROPERTY. [PART 1. 
 
 does not have the above mentioned characteristic. Some 
 proprietary right or dominion, sufficient to predicate owner- 
 ship, or property thereof, is just as essential as a thing of 
 fixed or permanent situs, to constitute real property, and 
 while undiscovered and unclaimed territory would come 
 within the definition of the term land, it could not be con- 
 sidered real property, within the legal signification of the 
 term, for it would lack the attribute of ownership, or an es- 
 tate therein, until some right attached thereto. 2 Hence it 
 is that real estate, is the ownership of land, or property of a 
 fixed, permanent situs, as distinguished from movable prop- 
 erty, which accompanies the person of the owner. 3 The term 
 " real estate," when used in its strict technical sense, includes 
 all estates for life or for a greater period, but does not in- 
 clude leasehold and other inferior estates. 4 
 
 2. What is land. All real property or things real, are 
 said to be comprehended under the terms, lands, tenements, 
 and hereditaments. Land is the soil of the earth, and in- 
 cludes everything erected upon its surface, or which is buried 
 beneath it. It extends in theory indefinitely upward, usque 
 ad ccelum, and downward, usque ad orcum. Under the term 
 
 8 A meteorite, though not buried in the soil, constitutes real estate, in 
 the absence of proof of severance, and belongs to the owner of the soil, 
 according to the decision of the Oregon Supreme Court, in Oregon Iron 
 Co. r. Hughes, 81 Pac. Rep. 572. For development of the English law 
 and earliest use of the term " ownership," see 2 Pollock & Maitland, 
 Hist. Eng. Law, 151. " The right of indefinite user is an essential 
 quality or attribute of absolute property, without which absolute prop- 
 erty can have no legal existence. ' Use is the real side of property.' " 
 Eaton v. Boston, etc., R. Co., 51 N. H. 504; Finch's Sel. Gas. Law 
 Prop, in Land, 1; Wynehamer v. People, 13 N. Y. 378; 1 Bl. Com. 138; 
 2 Austin's Jur. (3 ed.) 217. 
 
 8 The legal situs of personal property follows the domicile of the 
 owner and the actual situs is only effected by transfers operating 
 through the law itself. Yost V. Graham, 50 W. Va. 199 ; 40 S. E. Rep. 
 361. 
 
 Co. Litt. 19, 20; Westervelt . People, 20 Wend. 416; Murry v. Hal- 
 lett, 2 Cowen, 497; 3 Kent's Com. (12 ed.) 401, p. 529. 
 2
 
 CH. I.] REAL PROPERTY. 2 
 
 land, therefore, are included the buildings, made so under 
 the doctrine of accession, and the trees and other things 
 growing upon the land, under the doctrine of acquisition by 
 production, as well as the minerals which may be embedded 
 in the earth. 5 If water runs over the land, the ownership 
 of the land gives a right to the use of the water, but does not 
 create therein a permanent right of property. The property 
 consists in the use. 6 A grant of lands, therefore, without 
 any qualification, conveys not only the soil but everything 
 else which is attached to it, or which constitutes a part of it, 
 the buildings, mines, trees, growing crops, etc. Even trees 
 which have been cut, and are lying upon the land, have been 
 said to pass with the land. 7 On the other hand, it has been 
 
 "2 Bla. Com. 17-19; Co. Lit. 4g; 1 Washburn on Real Prop. 3, 4; 
 Williams on Real Prop. 14. 
 
 But whether ice. formed upon a stream or pond, belongs to the 
 owner of the soil, is a doubtful question. If it is an artificial stream, 
 it seems settled that the owner of the bed has a right of property in the 
 ice. Mill River Co. -v. Smith, 34 Conn. 462; Paine v. Woods, 108 Mass. 
 173. And the same position has been sustained in Indiana in respect to 
 a natural stream. State v. Pottmyer, 33 Ind. '402. In Massachusetts, 
 ice formed on a natural stream seems to be common property to all who 
 have the right to go upon the stream. Paine v. Wood, supra; Inhab. 
 of W. Roxbury v. Stoddard, 7 Allen, 158. In many of the Western 
 states, the right to running water, by legislation, is declared a right in 
 real property. This is true in Montana. Barkley V. Tieleke, 2 Mont. 
 59; Burnham v. Freeman, 11 Colo. 601. See Colo. Act 1893, p. 298. 
 And for discussion of the right to running water on the public domain 
 and a history of the Federal legislation on the subject, see Titcomb V. 
 Kirk, 57 Cal. 288. The right of a riparian proprietor of a non-naviga- 
 ble stream to the undiminished flow of the water, is held, in New York, 
 to be inseparably annexed to the soil and a part of the land itself, and 
 not a mere easement or appurtenance. Pine v. New York, 103 Fed. 
 Rep. 337 ; Smith v. Rochester, 92 N. Y. 463. 
 
 T Brackett v. Goddard, 54 Me. oi3; Isham v. Morgan, 9 Conn. 374; 
 Hilton v. Oilman, 17 Me. 263; Baker v. Jordan, 3 Ohio, 438. But if 
 timber on land is cut by a licensee or lessee, a subsequent conveyance 
 of the land would not effect the title of the licensee or lessee in the 
 timber, for a severance of the timber from the freehold would so far 
 change its character to personal property as to prevent it from passing 
 
 3
 
 2 REAL PROPERTY. [PART I. 
 
 held that a grant of a mill included the contiguous land 
 which had been used with the mill, and which was necessary 
 to such use; and the grant of a house passed the land upon 
 which it is built. 8 But the land must be both contiguous 
 and necessary to the enjoyment of the building which has 
 been specifically conveyed, in order that it too might pass 
 under the grant. Thus the grant of a hotel "and the land 
 adjoining it," was held not to include an island in the rear 
 of the hotel, but which was separated from it by a river large 
 enough for a mill stream. 9 Manure made upon a farm is 
 generally considered in this countiy to be a part of the realty 
 and to pass with the grant of the land. 10 So, also, has the 
 rolling stock of a railroad been considered a part of the 
 realty, and to pass with a conveyance of the road without any 
 special description of the same. 11 
 
 in a conveyance of the realty. Price v. Madison (S. D.), 95 N. W. 
 Rep. 933. 
 
 Gear r. Burnham, 37 Conn. 229; Esty V. Currier, 98 Mass. 501; 
 Roe r. Strong, 149 N. Y. 316 (23 N. E. 743) ; Marmouth v. Plimpton, 
 77 Me. 556. 
 
 Miller v. Mann, 55 Vt. 475. 
 
 10 Goodrich v. Jones, 2 Hill, 142; Parsons v. Camp, 11 Conn. 525; 
 Perry v. Carr, 44 N. H. 122; Daniels v. Pond, 31 Pick. 367. Manure 
 from fodder, fed by a tenant, and not raised on the leased land, belongs 
 to the tenant and not the owner of the land. Pickering v. Moore, 67 
 N. H. 533; 32 Atl. Rep. 828; 31 L. R. A. 698. 
 
 11 Minnesota V. St. Paul R. R., 2 Wall. 644; Farmers' Loan, etc., Co. 
 r. Hendrickson, 25 Barb. 493; Palmer v. Forbes, 23 111. 300; State V. 
 Northern R. R. Co., 18 Md. 193. While it is no doubt true that rolling 
 stock of a railroad may be treated as real estate, by legislative act, for 
 purposes of taxation (Louisville & N. R. Co. v. State, 25 Ind. 177; 
 Denver & R. G. Co. v. Church, 17 Colo. 1 ; 28 Pac. Rep. 468 ; 48 Am. & 
 Eng. R. Cas. 627; Shawnee Co. Com. v. Topeka Equip. Co., 26 Kan. 
 363; Wilmington & W. R. Co. v. Alsbrook, 110 N. C. 137, 437; 14 S. E. 
 Rep. 652, 1007 ) , such property is not generally regarded as " fixture " 
 between mortgagor and mortgagee (Speiden v. Parker, 46 N. J. Eq. 
 292, 19 Atl. Rep. 21), but is a chattel, and remains so, after being 
 placed on the track, for operation (Williamson v. N. J. Southern R. 
 Co., 29 N. J. Eq. 311; 15 Amer. Ry. Rep. 572; Chicago & N. W. R. Co. 
 r. Ft. Howard, 21 Wis. 44; Neilson v. Iowa Eastern R. Co., 51 Iowa, 
 
 4
 
 CH. I.] REAL PROPERTY. 3 
 
 3. Elements composing. The term ' ' land, ' ' in its broad- 
 est sense, includes not only all substances comprising part of 
 the solid body of the earth, but all fluids and gases, metallic 
 and non-metallic substances, located beneath the surface of 
 the soil, as well as the soil and subsoil upon and immediately 
 beneath the surface of the earth, 12 and the erections on the 
 surface, of a permanent and fixed character. The solid, 
 crystalline bodies, forming part of the substance of the 
 earth and the liquids and gases, which do not possesss a 
 definite geometric form, that are put to commercial uses, be- 
 cause of their value to mankind, are generally denominated 
 ''minerals," to distinguish them from the soil and subsoil 
 and other elements of the term "land," possessing no pecul- 
 iar value. 13 As long as such substances retain their natural 
 place in the earth, they are included within the legal mean- 
 ing of the term ' ' land ' ' and are a part of the realty and pass 
 by a grant of the land, as such; 14 but when once such sub- 
 stances, are severed from the soil in which they are naturally 
 found, they lose their character as real estate and are con- 
 sidered personal property. 15 
 
 184, 714) . And the better opinion is that the rolling stock of a railroad 
 is personalty. (Randall v. Elwell, 52 N. Y. 52, s. c. 11 Am. Rep. 747 - v 
 Hoyle v. Plattsburg, etc., R. R., 54 N. Y. 314, s. c. 13 Am. Rep. 595. > 
 
 12 " Land includes whatever is parcel of the terrestrial globe, or fs 
 permanently affixed to such parcel." Tiffany, Real Prop. Sec. 4, p. 6; 
 Co. Litt. 4a. " The term embraces the bare granite of the loftiest moun- 
 tains, as well as the deepest hidden diamonds and metallic and non- 
 metallic ores." Midland R. Co. V. Checkley, L. R. 4 Eq. 19; Earl of 
 Ross v. Wainman, 14 M. & W. 859; 2 Exch. 800; 15 L. J. Exch. 67; 
 McLaughlin V. Powell, 50 Cal. 64; Dark v. Johnson, 55 Pa. St. 164. 
 
 !3 Soil and sub-soil are distinguished from " minerals," in Eardley i\. 
 Granville, 3 Ch. D. 826. See, also, Midland R. Co. V. Haunchwood Co.. 
 20 Ch. D. 555; MacSwinney, on Mines, p. 18. 
 
 i* Land includes the term mineral. Shep. Touch. 90; Newcolm r. 
 Coulson, 5 Ch. D. 142; McDonald v. McKinty, 10 Ir. L. R. 514; Loose- 
 moore v. Tiverton R. Co., 22 Ch. D. 43. 
 
 "Grubb r. Bayard, 2 Wall Jr. 81; Green v. Ashland Iron Co., 62 
 Pa. St. 97; Forbes v. Gracey Con. Vir. Min. Co., 94 U. S. 762; 24 L. 
 Ed. 313; Burns v. Clark, 133 Cal. 634. 
 
 5
 
 4 REAL PROPERTY. [PART I. 
 
 4. Double ownership in lands. Technically, the law 
 knmvs no double ownership in lands, or in any other kind of 
 property. But, since land is made up of composite elements, 
 the soil itself, the trees, and other products and annexations 
 upon it, and the minerals and other deposits under it, it 
 may be divided up into these elements, so that one man may 
 own the trees and erections, another the surface, and a third 
 a mine beneath. A sale of the trees, if it satisfies the re- 
 quirements of the Statute of Frauds, by being in writing, 
 gives to the vendee a right of property in the standing trees, 
 with the right to enter upon the land for the purpose of 
 cutting and transporting them. 16 But if the contract be 
 executory, and not in the nature of a deed, then no title to 
 the standing trees passes to the vendee. He simply has a 
 license to come upon the land and cut them. 17 So there may 
 be a separate right of property in a house, 18 or a room, or in 
 a mine. 19 
 
 iCarrington r. Roots, 2 M. & W. 248; Warren v. Leland, 2 Barb. 
 613; Pattison's Appeal, 61 Pa. 297; Whipple V. Foot, 2 Johns. 423; 
 Green r. Armstrong; 1 Denio, 550; McGregor v. Brown, 10 N. Y. 117; 
 Drake r. Wells, 11 Allen 144; Clap v. Diaper, 4 Mass. 266; Kingsley V. 
 Holbrook, 45 N. H. 319; Gardner Mfg. Co. v. Heald, 5 Greenl. 381; 
 Drake r. Wells, 11 Allen 144; Knotts V. Hydrick, 12 Rich 314; West- 
 cott r. Delano, 20 Wis. 516; Rich v. Zeilsdorf, 22 Wis. 544; see post, 
 Sec. 563. 
 
 "Drake r. Wells, 11 Allen, 142; Douglass v. Shumway, 13 Gray, 502; 
 Clark r. Way, 11 Rich. 621; Nettleton v. Sikes, 8 Mete. 35. See post, 
 Sec. 563. 
 
 "Harris v. Ryding, 5 M. & W. 60; Stoughton v. Lee, 1 Taunt. 402; 
 Stockwell v. Hunter, 11 Mete. 448; Adams v. Briggs, 7 Gush. 361; Can- 
 field P. Ford, 28 Barb. 336. In the recent case of Madison V. Madison 
 (206 111. 534, 69 N. E. Rep. 625), an interesting question over the dif- 
 ferent elements and ownership in lands arose. The owner of a two- 
 story building made a deed, without limitation, to the owner of the 
 second story and the court held the grantee acquired a tangible interest 
 in real estate thereby. 
 
 "Gloninger v. Franklin Coal Co., 55 Pa. St. 9; Proprietors v. Lowell, 
 
 1 Mete. 538: Otis v. Smith, 9 Pick. 293; Shades V. McCormick, 4 Iowa, 
 
 375; Cheeseborough r. Green. 10 Conn. 318; Green v. Putnam, 8 Gush. 
 
 21; Caldwell v. Fulton, 31 Pa. 475; Clement v. Youngmann, 40 Pa. St. 
 
 6
 
 CH. I.] REAL PROPERTY. 6 
 
 5. Incidents of dual ownership. Formerly, when one 
 owned the surface of the earth, he was held, in law, to own 
 an estate which extended to the center of the earth, but now 
 the surface of the land may be separated, by a distinct title, 
 from the different strata underneath it and there may be as 
 many owners as there are strata. 20 Not only may there be 
 separate titles to the elements that compose the soil, but 
 there may be distinct ownership in the different descriptions 
 of minerals, or in different deposits or strata of the same 
 kind of mineral. 21 For instance, one person may own the 
 iron ore and another the lead, contained in the same tract 
 of land, and a third party can own one section or stratum of 
 coal and a fourth hold the title to another distinct seam of 
 the same mineral, while neither may possess the title to the 
 surface of the land. 22 
 
 6. " Lands, tenements, and hereditaments." What is in- 
 cluded under the term lands, has been discussed in the 
 preceding pages. Tenements are those things which can be 
 HOLDEN. It is a word derived from the feudal system, and 
 signifies anything which is held in tenure. 23 Hereditament 
 
 344: Zinc Co. V. Franklinite Co., 13 N. J. 322; Wardell r. Watson. 03 
 Mo. 107; Coal Co. v. Mellon, 152 Pa. St. 286; Lillibridge r. Coal Co., 
 143 Pa. St. 293; Kirk r. Mattier, 140 Mo. 23. 
 
 20 Lillibridge V. Coal Co., 143 Pa. St. 293; Coal Co. v. Mellon, 152 
 Pa. St. 286; Kirk v. Mattier, 140 Mo. 23. 
 
 aiCaldwell r. Copeland, 37 Pa. St. 1; Kier v. Peterson, 41 Pa. St. 5; 
 Barden r. Northern Pae. Co., 154 U. S. 288; Williams v. Gibson, 84 
 Ala. 228; Higgins v. Cal. Pet. Co., 109 Cal. 304; Silva r. Rankin, 80 
 Ga. 79; Wilms v. Jess, 94 111. 464; Rogers r. Cox, 96 Ind. 157; Mickle 
 r. Douglas, 75 Iowa 78; Hartford Co. v. Cambria Co., 93 Mich. 93. 
 
 22 Butte Mining Co. v. Sloane, 16 Mont. 97; Hawkins r. Pepper, 117 
 N. C. 407; Burgner r. Humphrey, 41 Ohio St. 340; Pringle v. Coal Co., 
 172 Pa. St. 438; Lee r. Baumgardner, 86 Va. 315; Blanchard & Weeks 
 Ld. Cas., p. 33. There may be separate distinct estates in different 
 persons in the surface of land and oil and other minerals in it. Peter- 
 son r. Hall (W. Va.), 50 S. E. Rep. 603. 
 
 23 Tenement is said to be a more comprehensive term than land, \\liich 
 
 7
 
 7 REAL PROPERTY. [PART I. 
 
 is any property which is heritable. Hereditaments an- >!' 
 two kinds, corporeal, that is, everything of a substantial 
 nature, such as lands, houses, mines, etc. ; incorporeal, or 
 those species of real property, which are not tangible, and 
 are more properly rights in, than rights to, or of, real prop- 
 erty. 2 * The Roman jura in re aliena, comprise to some ex- 
 tent this class of rights of property. 
 
 7. Emblements. If growing crops are planted by the 
 owner of the soil, they form a part of the realty. But if 
 they are planted by a tenant, holding under the owner, then 
 they are personalty as regards the owner, at least during 
 the continuance of the tenancy, but as a rule, realty in re- 
 spect to all others. Whether he has a right to the growing 
 crops, after the termination of his lease, depends upon the 
 certainty or uncertainty of its duration. This right is called 
 emblements. When the termination of the estate depends 
 upon an uncertainty, the tenant or his personal representa- 
 tives will have emblements, coupled with the right of entry 
 for the purpose of working the crops, until they are ripe 
 for harvesting. 25 This subject will be specially noticed in 
 discussing the characteristics of the different estates. 
 
 it includes, as well as incorporeal property. 2 Pollock & Maitland Hist. 
 Eng. Law 148; Co. Litt. 18a ; 2 Bl. Com. 17. 
 
 24 While " hereditament " is broader than tenement, as including 
 whatever, in the absence of testamentary disposition, may descend ti> 
 the heir. Tiffany, Real Prop. Sec. 4, p.- 7 ; 2 Bl. Com. 17; Co. Litt. 6a. 
 
 zsHolbrook r. Green (1903), 98 Me. 171, 56 Atl. Rep. 659. A mort- 
 gagee of land cannot recover from the mortgagor for crops grown and 
 actually severed from the land before the entry by the mortgagee. 
 Hinton v. Walston, 115 N. C. 7; 20 S. E. Rep. 164. A crop planted by a 
 tenant for years, after a decree foreclosing a mortgage on the land, 
 belongs to the tenant, if he was permitted to retain possession until the 
 maturity of the crop. Munday r. O'Neal (Neb.), 63 N. W. Rep. 3i, 
 But a purchaser under a mortgage sale, becomes the owner of all crops 
 unsevered at the time of the sale, although not as to crops severed be- 
 fore the sale. Watson v. Menter, 59 Mo. App. 387. Crops raised on 
 leased premises, after severance, although not harvested, become per- 
 sonalty and do not pass to the incoming tenant or revert to the 
 8
 
 CH. I.] REAL PROPERTY. 8 
 
 8. Trees. As we have seen above, trees constitute a part 
 of the realty, being a product of the soil which is not planted 
 annually. If the trunk of a tree is wholly within the 
 boundaries of one man's land, the entire tree belongs to him, 
 even though the branches and roots may find their way into 
 the land of the adjoining owner. The adjoining owner need 
 not endure this trespass, but may cut off such projecting 
 roots and branches. If the tree stands upon the boundary 
 line, so that a part of the tree is on either side, the tree 
 is then the joint property of both, and neither can remove 
 or injure it without the consent of the other. 26 And while 
 there can be a separate property in growing trees, the same 
 as in minerals beneath the surface, 27 so long as the title to 
 the trees is in the surface owner, they form a part and parcel 
 of the realty and the mere fact that a contract of sale has 
 been executed for the growing timber on a tract of land, 
 would not pass the title to the trees, but they would retain 
 the character of land, to such an extent as to be taxable only 
 as a portion of the realty and not as a separate entity, until 
 an actual conveyance had been made. 28 
 
 lord, as a part of the realty. Meffert v. Dyer (Mo. App. 1904), 81 
 S. W. Rep. 643. 
 
 26 Masters v. Pollie, 2 Roll. Rep. 141; Hutchings v. King, 1 Wall. 59; 
 Holder v. Coates, 1 Mees. & W. 112; Skinner t?. Wilder, 38 Vt. 115; 
 Dubois v. Beaver, 25 N. Y. 123; Hoffman V. Armstrong, 48 N. Y. 201; 
 3 Kent's Com. 437. It was recently held, in Iowa, that trees on the 
 boundary line between two adjoining tracts were the common property 
 of both landowners, but that either could cut the branches at the line 
 and dig out the roots penetrating his land. Harndon v. Stultz (1904), 
 100 N. W. Rep. 329. 
 
 27 Kirk r. Mattier, 140 Mo. 23. 
 
 28 Williams r. Triche, 107 La. 92, 31 So. Rep. 926. Where growing 
 trees or timber is taken under eminent domain, or condemnation pro- 
 ceedings, the damages to which the one entitled to the timber, who 
 purchased it from the owner, is the value of the trees on the stump, 
 with interest on the same, from the time of the appropriation. Turner 
 v. State, 73 N. Y. S. 372, 67 App. Div. 393. 
 
 9
 
 CHAPTER II. 
 
 FIXTURES. 
 
 SECTION 9. General doctrine of. 
 
 10. Nature and definition of. 
 
 11. Tests for determining what are. 
 
 12. Identity and subsequent use of chattel. 
 
 13. Between what parties the question may arise. 
 
 14. Constructive annexation. 
 
 15. Temporary annexation. 
 
 16. Questions of, between landlord and tenant. 
 
 17. Fixtures erected by licensee. 
 
 18. Time for removal of fixtures. 
 
 9. General doctrine of. The general rule of law is that a 
 permanent annexation to the soil of a thing, in itself per- 
 sonal, makes it a part of the' realty. And the rule applies, 
 in some cases, even where the thing annexed is the per- 
 sonal property of another. Thus, if a stranger erects a 
 building upon the land of another, having no estate therein, 
 the building becomes the property of the owner of the soil. 
 And this happens at common law, notwithstanding the 
 stranger acts under a mistaken claim of title. 1 But if such 
 erection is in pursuance of a license granted by the owner 
 of the soil, then the annexation will not make the building 
 or other structure a part of the realty. A conveyance of 
 the land will not transfer the structure with it, but will oper- 
 ate as a revocation of the license, and compel the owner, 
 within a reasonable time after such revocation, to remove 
 
 i Osgood r. Howard, 6 Greenl. 452; Aldrich V. Parsons, 6 N. Y. 555; 
 Dame r. Dame, 38 N. H. 429; Ogden v. Stock, 34 111. 522; Rogers v. 
 U'oodbury, 15 Pick. 156; Webster v. Potter, 105 Mass. 416. 
 10
 
 CH. II.] FIXTURES. 10 
 
 the structure or lose his right of property therein. 2 But 
 where the person erecting the structure is the owner of the 
 soil, or has an interest in the land, then it is more diffi- 
 cult to determine from the various circumstances under 
 which the question may arise, when the annexation is suffi- 
 ciently permanent in its character, in order to merge the 
 thing attached into the realty. This subject is known as the 
 law of fixtures. 
 
 10. Nature and definition of. Fixtures are those things, 
 which, personal in their nature, become realty by reason of 
 their annexation to the soil, such annexation being made 
 by some one having an interest in the soil. 3 They are re- 
 
 sTapley v. Smith, 18 Me. 12; Russell v. Richards, 10 Me. 429; Keyser 
 v. School District, 35 N. H. 480; Antoni v. Belknap, 102 Mass. 200; 
 Kutter v. Smith, 2 Wall. 491; O'Brien V. Kustener, 27 Mich. 292; Ham 
 V. Kendall, 111 Mass. 298; Goodman v. Hannibal & S4. Joseph R. R., 
 45 Mo. 33 ; Harrisburg Electric Light Co. v. Goodman, 129 Pa. St. 206 ; 
 Curtis v. Leasia, 44 N. W. Rep. 500; Keating Implement Co. & Machine 
 Co. v. Power Co., 74 Tex. 605 ; Handforth f. Jackson, 150 Mass. 149, 22 
 N. E. Rep. 634; Pope v. Skinkle, 45 N. J. L. 39; Rowland v. Anderson, 
 33 Kan. 264 ; Ingalls v. St. Paul, etc., R. R. Co., 40 N. W. Rep. 524, 39 
 Minn. 479. A leather belt, used to transmit power from a stationary 
 engine to a main shaft, for the operation of the machinery of a marble 
 mill, is held, in Vermont, to be a part of the realty and is not subject 
 to attachment and removal as personal property. Friedley v. Giddings, 
 119 Fed. Rep. 438, 128 Fed. Rep. 355, 63 C. C. A. 85, 65 L. R. A. 327. 
 
 3 Mr. Ewell does not limit the term to articles of a chattel nature 
 only, but defines a fixture as " any annexation or addition which has 
 been affixed to, or planted in, the soil of the land." Ewell, Fixt. 1 ; 
 Climie v. Wood, L. R. 3 Exch. 257, 37 L. J. (N. S.) Exch. 158; L. R. 
 4 Exch. 328. Unless the article annexed entirely loses its identity in 
 the manner of the annexation (Woodruff v. Adams, 37 Conn. 233; Lan- 
 sing Engine Works v. Walker, 91 Mich. 409), the chattel must usually 
 be annexed by the owner of the land, or with his consent. General 
 Elec. Co. v. Equipment Co., 57 N. J. Eq. 460; Gill v. De Armand, 90 
 Mich. 425. It is held, in Canada, that for personal property perma- 
 nently placed on land and incorporated therewith, to become a fixture, 
 the ownership both of the land and personal property, must be vested in 
 the same person. Leonard v. Williard, Rap. Jud. Que. 23 C. S. 482. 
 This is also the rule, in Louisiana. Hibernia Nat. Bank v. 8arah 
 Planting & Refining Co., 107 La. 650, 31 So. Rep. 1031. 
 
 11
 
 11 FIXTURES. [PART i. 
 
 movable or not, according to the circumstances of each case. 
 In the first place, the attachment must be of a permanent 
 and legal character. If there is no attachment or annexa- 
 tion, the thing remains personal property. But the annexa- 
 tion may be actual or constructive. Actual annexation is 
 where the thing is annexed by actual attachment to the soil, 
 as a house built upon a brick foundation, or fences with 
 posts embedded in the soil. Constructive annexation is 
 where the thing is fitted for use in connection with the 
 premises, and is more or less necessary to their enjoyment, 
 but it is not firmly attached. Such, for example, are keys, 
 movable window blinds, doors, etc. In the second place, since 
 the thing assumes the character of a fixture, because of its 
 annexation to the soil, it must follow, that if there can be a 
 legal severance it will re-assume the character of personal 
 property and cease to be a fixture. The right to remove 
 fixtures depends upon the intention of the parties as mani- 
 fested by the character of the annexation and the effect of 
 severance upon the land, and the relation of the person 
 making the removal to the fixture and to the land. 
 
 11. Tests for determining what are. In determining 
 whether a given article annexed to the realty, does, or does 
 not become a fixture, the judicial tests are usually said to 
 be: (1) the intention with which the annexation was made; 
 (2) the physical character of the annexation, and (3) the 
 adaptability of the article to the uses for which the realty 
 is put. 4 While different courts, because of the peculiar facts 
 of a given case, may give undue prominence to one or the 
 other of these tests, in determining the question, it is usually 
 necessary to consider them all, to reach a proper solution, in 
 
 State Bank v. Perceval, 65 Mo. 683 ; McRea v. Nat. Bank, 66 X. Y. 
 489; Hopewell Mills r. Staunton Bank, 150 Mass. 519; 15 Amer. St. 
 Rep. 235; Manwaring ?. Jennison, 61 Mich. 117; Finfield v. National 
 Bank, 148 111. 163, 39 Amer. St. Rep. 166, 13 Amer. & Eng. Enc. Law 
 (2 eel.) 593. 
 
 12
 
 Oil. II.] FIXTURES. 11 
 
 every case. The physical character of the annexation to 
 the land is not, alone, sufficient to determine whether an an- 
 nexed chattel has become real estate, but concurring with 
 such physical annexation, in order to effect a merger of the 
 chattel into the realty, there must have existed an intention, 
 on the part of the party attaching it to the realty, of making 
 it a permanent accession to the land and an adaptability, 
 of the chattel, for the use to which that part of the realty 
 to which it is annexed, is put. 5 Keeping in mind these tests, 
 and the underlying principles that where an object is so at- 
 tached to the land, as to become a part thereof, it goes to the 
 heir, and where, from its nature and purpose, it was clearly 
 not intended that it should form a part of the realty, but 
 was only attached for temporary purposes of enjoyment, it 
 is removable and goes to the executor, there will be little 
 difficulty in determining all questions of fixtures, whether 
 between landlord and tenant, or tenant for life and re- 
 mainderman, for any apparant change in the law, in this re- 
 gard, is not in the principles themselves, but arises from 
 their application, under changed conditions of life and 
 habits. 6 
 
 5 In a late New Jersey case it is held, that in order to transmute 
 chattels into realty, it must appear, First, that the chattels were actually 
 annexed to the real estate, or something appurtenant thereto; second, 
 that they were applied to the use to which that part of the realty to 
 which they were connected was appropriated ; and, third, that they were 
 annexed with the intention to make them a permanent annexation to 
 the freehold. Atlantic S. D. T. Co. v. Atl. City L. Co., 64 N. J. Eq. 140, 
 53 Atl. Rep. 212. The physical character of the annexation of a chattel 
 to land does not, alone, determine the question of whether or not the 
 chattel becomes real estate. To effect a merger of a chattel into realty 
 there must be an actual physical annexation ; an adaptability for use 
 with that part of the realty to which it is annexed and an intention, 
 deducible from all the circumstances, by the party annexing, -to make it 
 a permanent accession. Hayford v. Wentworth, 97 Me. 347, 54 Atl. 
 Rep. 940. 
 
 Leigh v. Taylor, 71 Law J. Ch. 272 (1902), App. Cas. 157, 86 Law T. 
 239; 50 Weekly Rep. 623. 
 
 13
 
 13 FIXTURES. [PART i. 
 
 12. Identity and subsequent use of chattel. Illustrative 
 of the tests by which personal property, annexed to the real 
 estate, may or may not become a fixture and so far have its 
 character changed as to be converted from personalty, into 
 real estate, provided the nature of the property is such that 
 it will not retain its original character and fitness for sub- 
 sequent use as personalty, and the intention and mode of the 
 annexation are such as to evidence an intention that it should 
 become real estate, is the recent case, where it was attempted 
 to change the character of a hotel building, annexed to the 
 land and conveyed as a part of it, by a subsequent agree- 
 ment that it should be considered personalty, which the Court 
 held could not be done, 7 and another case, where water pipes 
 and meters although annexed to the real estate by the 
 owner, who subsequently made a deed of the land to which 
 they were annexed, granting all "rights, privileges and ap- 
 purtenances" to the land. belonging were held not to become 
 a part of the real estate, as such property did not lose its 
 character of personalty, nor was its identity so changed that 
 it lost its original fitness for use, on being removed from the 
 realty. 8 
 
 13. Between what parties the question may arise. 
 Where the person who erected the fixture has a permanent 
 
 7 Beeler v. Mercantile Co. ( Idaho, 1902 ) , 70 Pac. Rep. 943. 
 
 sMulrooney f. Obear, 171 Mo. 613, 71 S. W. Rep. 1019. See, also, 
 Dunsmire v. Port Angeles Water, etc., Co., 63 Pac. Rep. 1095. In a 
 recent Arizona case, a log fence, erected to enclose a tract of Govern- 
 ment land, which, by mistake, was built on an adjoining tract, acquired 
 from the Government by another person, was held to pass as an incident 
 of the realty and was not the subject of removal, as a trade fixture. 
 Hereford v. Pusch (1902), 68 Pac. Rep. 794. And, in Montana, it is 
 held that a stockholder who adds to an opera house, a drop curtain, 
 chairs, stage appliances and articles to be used in connection with the 
 opera house, owned by a corporation, loses title thereto and the articles 
 become fixtures to the extent of passing, with an execution sale of the 
 opera house, to a purchaser thereof. Murray t. Bender, 125 Fed. Rep. 
 705, 60 C. C. A. 473, 63 L. R. A. 783. 
 14
 
 CH. II.] FIXTURES. 13 
 
 estate in the land, such as a fee, the legal maxim quidquid 
 plantatur solo solo cedit, applies to the fullest extent, qual- 
 ified only by the rule that the annexation must be of a 
 permanent character. The question, as to the right to re- 
 move such a fixture, may arise between (1) heirs and the 
 executor; (2) vendor and vendee; (3) mortgagor and 
 mortgagee; (4) life tenant and remainderman; (5) land- 
 lord and tenant, and, (6) licensor and licensee. In all these 
 cases, the general rule is, that all annexations of a perma- 
 nent character pass with the realty respectively to the heir, 
 vendee, mortgagee, remainderman, landlord, and licensor and 
 cannot be removed by the executor, vendor, mortgagor, life 
 tenant, tenant, or licensee. Such is the rule, even though 
 the severance might be made without any material injury 
 to the freehold. But the permanent or temporary character 
 of the annexation often presents some difficult questions. It 
 seems that the manner of fastening offers, in most cases, the 
 true solution. If the fastening is firm and secure, then it 
 gives permanency to the annexation, and makes the thing 
 attached an immovable fixture. Such would be engines, 
 boilers, dye-kettles, cotton-gins, and all other kinds of ma- 
 chinery which are firmly attached to the building by rods 
 and bolts passing through the joists and timber, gas fixtures 
 and water-works, as well as houses and other buildings, 
 erected upon a firm foundation. Such fixtures would, as be- 
 tween the parties named, constitute a part of the realty, and 
 pass with it. 9 But the permanency of the annexation does 
 
 Hi11 r. Sewald, 53 Pa. St. 274; Voorhies v. Freeman, 2 Watts & S. 
 116; Union Bank r. Emerson, 15 Mass. 159; Noble v. Butterworth, 19 
 Pick. 314; Tifft v. Horton, 53 N. Y. 377; 13 Am. Rep. 937; Quinby v. 
 Manhattan Cloth, etc., Co., 24 N. J. Eq. 260; Parsons v. Copeland, 38 
 Me. 537: Lavenson V. Standard Soap Co., 80 Cal. 245; Speiden V. Par- 
 ker, 46 N. J. Eq. 292; Home r. Smith, 105 N. C. 322; Doughty t". Owen 
 (N. J.), 19 Atl. Rep. 540; Langdon V. Buchanan, 62 N. H. 657; Racket 
 r. Amsden, 57 Vt. 432; Brass Foundry, etc., Works v. Gallentine, 99 
 Ind. 525; Dudley V. Hurst (Md.), 8 Atl. Rep. 901; Kisterbock v. Lnn- 
 ning (Pa.), 7 Atl. Rep. 596, note; Scheifele v. Schmitz, 42 N. J. Kq. 
 
 15
 
 13 FIXTURES. [PART i. 
 
 not always determine the fixture to be irremovable. While 
 such permanency of annexation presumptively denies the 
 right of removal of the fixture as between the parties just 
 named, this is so only because the permanent character of 
 the interest in the land of the party who makes the annexa- 
 tion established, in conjunction with the permanent char- 
 acter of the annexation, an intention on his part to make 
 it permanently an appurtenant of the land. It is in every 
 case a question of intent. And if in any case, even as be- 
 tween the parties named, the contrary intention is clearly 
 established, the fixture will be removable, notwithstanding 
 the annexation was permanent in character, provided, al- 
 ways, that the removal can be made without any permanent 
 material damage to the estate. 10 Thus the intention to make 
 a permanent fixture, which rests upon the security of the 
 annexation, will always be rebutted, and the contrary in- 
 tention established, where the owner of the land, to which the 
 fixture was attached, had executed a chattel mortgage over 
 the thing, either contemporaneously with or prior to its at- 
 tachment to the land, at least so far as to give priority of 
 
 700; s. c. 11 Atl. Rep. 257, note; Smyth v. Sturges, 108 N. Y. 495; s. c. 
 15 N. E. Rep. 544; Appeal of Williams (Pa.), 16 Atl. Rep. 810; s. c. 
 24 W. N. C. 365; Hill r. Munday (Ky.), 11 S. W. Rep. 956 (stock of 
 ice in house on land conveyed) ; Burrell v. Lumber Co., 65 Mich. 571; 
 C'hilds v. Hurd, 32 W. Va. 66; Pierce v. George, 108 Mass. 78; Hill v. 
 Hill, 43 Pa. St. 521; McRea V. Central National Bank, 66 N. Y. 489; 
 Burnsides v. Twitchell, 43 N. H. 390; Green v. Phillips, 26 Gratt. 752, 
 21 Am. Rep. 323; Latham v. Blakely, 70 N. C. 369; Richardson v. Bor- 
 den, 42 Miss. 71, 2 Am. Rep. 595; Deal v. Palmer, 72 N. C. 582; Stock- 
 well v. Campbell, 39 Conn. 362, 11 Am. Rep. 393. 
 
 loManwaring v. Jennison, 61 Mich. 117; Carpenter v. Allen, 150 Mass. 
 281; Vail v. Weaver, 132 Pa. St. 363; Buzzell V. Cumrnings, 61 Vt. 213; 
 Elliott v. Wright, 30 Mo. App. 217; John Van Range Co. v. Allen, 
 (Miss.) 7 So. Rep. 499; Foster v. Prentiss, 75 Me. 279; Hart v. Sheldon, 
 34 Hun 38; DeLacy v. Tillman, 83 Ala. 155; Harkey v. Cain, 69 Tex. 
 146, s. c. 6 S. W. Rep. 637, note; Benedict v. Marsh, 127 Pa. St. 309; 
 Voorhees t;. McGinniss, 48 N. Y. 278. 
 
 16
 
 CH. II.] FIXTURES. 14 
 
 lien to the chattel mortgage. 11 Where the right of removal 
 is denied to the party who annexed the fixture, the fixture, 
 in case of such unlawful removal, can be recovered, as long 
 as it remains in the posession of the party so removing it, 
 or of one who is not a bona fide purchaser. But if the fix- 
 ture has been transferred to a bona fide purchaser for value, 
 he acquires a good title thereto and it cannot be taken away 
 from him. And the remedy of the owner of the land and 
 fixture is for damages against the party who removed the 
 fixture. 12 
 
 14. Constructive annexation. The permanency of the 
 annexation may be presumed from the weight and size of 
 the object, and its suitableness for use and enjoyment on 
 the land on which it rests. Thus a statue of huge dimen- 
 sions, resting with its pedestal upon a permanent foundation, 
 and erected upon a lawn for the purpose of ornament, was 
 held to be a part of the realty. 13 Under the doctrine of con- 
 structive annexation, it has been held that the poles, wires 
 and lamps erected in the street, by an electric light com- 
 pany, w r ere fixtures and appurtenant to the company's 
 
 11 Carpenter r. Allen, 150 Mass. 281; Sword r. Low (111.), 13 N. E. 
 Rep. 826; Miller v. Wilson, 71 Iowa 610; Henkle r. Dillon, 15 Oreg. 
 610, s. c. 17 Pac. Rep. 148; see Campbell v. Roddy, 44 N. J. Eq. 244, 
 *. c. 14 Atl. Rep. 279; McGorrisk v. Dwyer (Iowa), 43 N. W. Rep. 215; 
 Binkley r. Forkner, 117 Ind. 176, s. c. 19 N. E. Rep. 753, note. 
 
 J 2Betz r. Verner, 46 N. J. Eq. 256. Fixtures annexed to real estate 
 by one in possession, under a contract of purchase, as against the vendor 
 of the land, cannot be removed by the vendee, nor be seized and sold, 
 on an execution against him, as his personal property. Seiberling r. 
 Miller, 106 111. App. 190, 207 111. 443, 69 N. E. Rep. 800. The rule that 
 ornamental fixtures are removable applies as well to life tenant and 
 remainderman as to landlord and tenant. In re DeFalbe, 70 Law .1. 
 Ch. 286; (1901) 1 Ch. 523; 84 Law T. 273; 49 Weekly Rep. 455; Ward 
 r. Taylor, id. 
 
 i 3 Snedeker v. Waring, 12 N. Y. 170. See, also, to same effect, Cavis 
 9, I'.i-rkford, 62 N. H. 229; Hopewell Mills v. Taunton Sav. Bank, 150 
 Mass. 519. 
 
 2 17
 
 15 FIXTURES. [PART i. 
 
 plant. 14 Where things, though temporarily detached, are 
 permanently used in connection with the land, they are fix- 
 tures and pass with the realty. Thus, hop-poles, stacked up 
 in piles, rolls in an iron mill, lying loose in the mill, fencing 
 materials, etc., were held to be fixtures, even though they 
 were at the time detached from the soil. 15 
 
 15. Temporary annexation. But where the attachment is 
 only for the purpose of keeping the things steady, and they 
 were not specially adapted to use upon the premises in ques- 
 tion, the simple fastening, which may exist, will not give to 
 them the character of permanent fixtures. Thus, looms and 
 cording machines, fastened by screws to the floor, a large ice 
 chest used in a tavern, and other such articles, are personal 
 property, and will not pass with the realty to the heir, vendee 
 or mortgagee. 18 And where a house is not put upon a firm 
 foundation, the courts are inclined to hold that it was in- 
 tended to be a temporary structure, and that it can be 
 moved. 17 A great many things, such as rolls in an iron mill, 
 
 "Keating Implement, etc., Co. v. Power Co. (Tex.), 12 S. W. Rep. 
 489. 
 
 " Bishop v. Bishop, 11 N. Y. 123; Wadleigh v. Janvrin, 41 N. H. 503; 
 Hill f. Sewald, 53 Pa. St. 274; Voorhies V. Freeman, 2 Watts & S. 116; 
 Goodrich v. Jones, 2 Hill 142 ; Meig's Appeal, 62 Pa. St. 28 ; 1 Am. Rep. 
 372; McLaughlin v. Johnson, 46 111. 163; Fulton v. Norton, 64 Me. 410; 
 Glidden v. Bennett, 43 N. H. 306; Smith v. Price, 39 111. 28; Doughty 
 r. Owen (N. J.), 19 Atl. Rep. 540. It is held, in Georgia, that where a 
 house of brick is destroyed and the brick and other material composing 
 the house, falls on the land, they remain a part of the realty and the 
 owner, after a conveyance of the land, cannot remove them. Guernsey 
 r. Phinizy, 113 Ga. 898, 39 S. E. Rep. 402. 
 
 "Murdock v. Gifford, 18 N. Y. 28; Cresson v. Stout, 17 Johns. 116; 
 Voorhies v. McGinnis, 48 N. Y. 278; Pierce V. George, 108 Mass. 78, 
 11 Am. Rep. 310; Blanche V. Rogers, 26 N. J. Eq. 563; Rogers v. Bro- 
 kaw, 25 N. J. Eq. 496; Hill v. Sewald, 53 Pa. St. 274; Feimster V. 
 Johnston, 64 N. C. 259; Graves V. Pierce, 53 Mo. 423; Long v. Cokern, 
 29 111. App. 304, *. c. 128 111. 29; Rogers V. Prattville Mfg. Co., 81 Ala. 
 483; Walker r. Grand Rapids, etc., Co. (Wis.), 35 N. W. Rep. 332. 
 
 Carlin v. Ritter, 68 Md. 478. 
 18
 
 <ra. TL] FIXTURES. 16' 
 
 storm doors, steps, etc., which, when actually fitted for use 
 and attached to the premises, are held to be permanent fix- 
 tures, remain personal property until so fitted and attached, 
 though they may be deposited upon the land. 18 When the 
 question arises between mortgagor and mortgagee, the fix- 
 ture is not removable, whether it is annexed by the mort- 
 gagor or mortgagee, before or after the execution of the mort- 
 gage. 19 The rule as to fixtures is the same between debtor 
 and creditor, and the heir or vendee and the widow, in re- 
 spect to the premises set out to her for dower. 20 
 
 16. Question of, between landlord and tenant. When the 
 question arises between landlord and tenant, or remainder- 
 man and executor of tenant for life, in respect to the fixtures 
 placed upon the land by the tenant for years, and for life 
 
 is Johnson v. Mehaffy, 43 Pa. St. 308 ; Burnside v. Twitchell, 43 N. H. 
 390; Peck v. Batchelder, 40 Vt. 233; Noble v. Sylvester, 42 Vt. 146; 
 Miller v. Wilson, 71 Iowa, 610. 
 
 i Roberts v. Dauphin Bank, 19 Pa. St. 74; Richardson v. Copeland, 
 6 Gray 536; Haskin v. Woodward, 45 Pa. St. 42; Crane v. Brigham, 
 11 N. J. Eq. 30; Voorhies t;. McGinnis, 48 N. Y. 278; Burnside v. 
 Twitchell, 43 N. H. 390 ; Lynde v. Rowe, 12 Allen, 100 ; Quinby v. Man- 
 hattan, etc., Co., 24 N. J. Eq. 260; Cullwick V. Swindell, L. R. 3 Eq.. 
 249; Foote v. Gooch, 96 N. C. 265, s. c. 1 S. E. Rep. 525, note; South- 
 bridge Sav. Bank r. Mason, 18 N. E. Rep. 406, note; McFadden v. Allen,. 
 3 N. Y. S., note, s. c. 50 Hun 361. But the mortgagor may remove the ; 
 fixtures erected by him, where he has, expressly or by necessary implica- 
 tion, reserved the right to do so. Waterfall v. Penistone, 6 E. & B. 876; 
 Crane f. Brigham, 11 N. J. Eq. 30; Burnside v. Twitchell, 43 N. H. 390; 
 Crippen v. Morrison, 13 Mich. 23. A chattel mortgage of the fixture 
 executed before or contemporaneous with its annexation, will have pri- 
 ority over a prior mortgage of the realty. Tifft v. Horton, 53 N. H. 
 377, 13 Am. Rep. 537; Eaves V. Estes, 10 Kan. 314, 15 Am. Rep. 345;, 
 Carpenter v. Allen, 150 Mass. 281; Sword v. Low (111.), 13 N. E. Rep, 
 826; Miller v. Wilson, 71 Iowa 610; Hankie v. Dillon, 15 Oreg. 610, s. c. 
 17 Pac. Rep. 148; Binkley t?. Forkner, 117 Ind. 176, s. c. 19 N. E. Rep. 
 753, note; Campbell v. Roddy, 44 N. J. Eq. 244; McGorrisk v. Dwyer 
 (Iowa), 43 N. W. Rep. 215. See also Ropps v. Barker, 4 Pick. 238. 
 
 20 Goddard v. Chase, 7 Mass. 432 ; Farrar v. Chanffetete, 5 Denio 527 ; 
 Powell r. Monson Co., 3 Mason 459; Hutchman's Appeal, 27 Pa. St.. 
 209 ; Way r. Way. 42 Conn. 52. 
 
 19
 
 16 FIXTURES. [PART l. 
 
 respectively, a more liberal rule is followed. The general 
 rule, above alluded to, that everything permanently annexed 
 to the soil becomes a part of the realty, and cannot be re- 
 moved, still holds good. 21 But since the tenant's interest in 
 the land is temporary in character, the presumption of per- 
 manency resulting from the character of the annexation has, 
 in the more important cases, to give way to a counter-pre- 
 sumption that the tenant did not intend to continue the an- 
 nexation longer than his term; and for this reason there are 
 certain exceptions, created in behalf of the tenant in respect 
 to certain classes of fixtures. The tenant is permitted to re- 
 move a fixture, which falls within one of these classes, even 
 though firmly affixed to the soil, provided such removal -will 
 not result in any permanent and material injury to the free- 
 hold. These are (1) trade fixtures; (2) agricultural fix- 
 tures; and (3) fixtures for domestic use and convenience. 
 Until lately, the common-law rule was relaxed only in favor 
 of trade fixtures, while agricultural and domestic fixtures 
 received the same strict construction as is applied to all fix- 
 tures between the heir and executor and other classes above 
 mentioned. The tendency of the law at the present day is 
 to permit the tenant to remove all fixtures he may attach to 
 the soil, which come under one of these classes, and which 
 can be removed without permanent injury to the premises. 22 
 
 21 Elwes v. Maw, 3 East 38; 2 Smith's Ld. Cas. 212; Ford v. Cobb, 20 
 N. Y. 344; Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537; Madigan v. 
 McCarthy, 108 Mass. 376, 11 Am. Rep. 371; McNally v. Connolly, 70 
 Cal. 3. 
 
 "Capen r. Peckham, 35 Conn. 88, s. c. 9 Am. Law Reg. (N. s.) 136; 
 Seeger v. Pettit, 77 Pa. St. 437, 18 Am. Rep. 452; 2 Smith's Ld. Cas. 
 278; Merritt v. Judd, 14 Cal. 59; Harkness v. Sears, 26 Ala. 493; Wing 
 V. Gray, 36 Vt. 261. Where the tenant is a debtor, and he has the right 
 to remove the fixtures, his judgment-creditor may, under an execution 
 against personal property, levy and sever the same from the freehold. 
 Minshall r. Lloyd, 2 M. & W. 450; 2 Smith's Ld. Cas. (7 ed.), 217; 
 O'Donnell v. Hitchcock, 118 Mass. 401; Overton v. Williston, 31 Pa. St. 
 155; State v. Bonham, 18 Irid. 231. See, also, Nigro v. Hatch (Ariz.), 
 11 Pac. Rep. 177; Kile v. Gillmer, 114 Pa. St. 381; Collonore V. Giltis, 
 20
 
 CH. II.] FIXTURES. 16 
 
 Among the fixtures erected for the purpose of trade and 
 manufacture by a tenant, which are held to be removable by 
 him at the termination of his tenancy, are the following: 
 Vats and coppers of a soap boiler, cider mills and presses, 
 buildings erected for trade, fire engines in a colliery, kettles 
 in distilleries, store fixtures, etc. 23 But where the tenant re- 
 places an old and worn out article, such as a furnace, which 
 he finds attached to the building when he takes possession, 
 with a new one, he cannot remove the latter at the termi- 
 nation of his tenancy. 24 Nursery trees are held to be such 
 an agricultural fixture as, when planted by the tenant for 
 the purpose of sale, to be capable of being removed. 25 So, 
 also, are stoves, gas fixtures, and other articles, erected and 
 attached to the house by the tenant for his domestic use 
 
 149 Mass. 578. All doubt as to removal of fixtures, by a tenant, is 
 resolved in favor of the landlord (Johnson v. Wooding, 24 Ohio Cir. 
 Ct. 608, 1902), and where the lease is silent as to the right of removal 
 and the removal of an addition to the leased premises, built by the 
 tenant, would amount to waste, it is not removable. Holmes v. Stand- 
 ard Pub. Co. (N. J. Ch. 1903), 55 Atl. Rep. 1107. 
 
 23Elwes v. Mawe, 3 East 38; 2 Smith's Ld. Cas. 278; Holmes v. 
 Tremper, 20 Johns. 29; Robinson v. Shuler, 5 Cow. 323; Torrey f. Bur- 
 nett, 38 N. J. L. 457, 20 Am. Rep. 421; Holbrook v. Chamberlin, 110 
 Mass. 155, 17 Am. Rep. 146; O'Donnell V. Hitchcock, 118 Mass. 401; 
 Graves v. Pierce, 53 Mo. 423; Cowden v. St. John, 16 Iowa 590. See 
 Guthrie V. Jones, 108 Mass. 191; O'Brien v. Kusterer, 27 Mich. 289; 
 Docking v. Frazell, 38 Kan. 420; Smith f. Whitney, 147 Mass. 479; 
 Farnsworth v. West. U. Tel. Co., 6 N. Y. Supp. 735 (telegraph wires 
 put on poles by lessee of another company's right of way) ; Thorn v. 
 Sutherland, 4 X. Y. Supp. 694. 
 
 24 Hay v. Tillyer (X. J.), 14 Atl. Rep. 18. 
 
 23 Penton v. Robert, 2 East 88 ; Miller v. Baker, 1 Mete. 27 ; \Vhit- 
 marsh v. Walker, 76. 313; Brooks v. Galster, 51 Barb. 196. See Jenkins 
 V. Gething, 2 Johns. & H. 520. The tenant cannot remove manure made 
 upon the farm. Fay r. Muzzey, 13 Gray 53; Lewis v. Jones, 17 Pa. St. 
 262; Ruckmann v. Outwater, 28 X. J. L. 581. Contra Smithwick v. 
 Ellison, 2 Ired. 326. A blacksmith shop, attached on runners and then 
 to the floor of a leased building, is removable by the tenant (Smyth v. 
 Stoddard, 203 111. 424, 67 X. E. Rep. 980), and so is a syphon water 
 closet, placed in an office building by a tenant. Hayford v. Wentworth 
 (1903), 97 Me. 347, 54 Atl. Rep. 940. 
 
 21
 
 17 FIXTURES. [PART i. 
 
 and convenience.- 8 The parties may by express agreement 
 enlarge the tenant's power of removal of fixtures, giving him 
 the power to remove fixtures, which independently of the 
 agreement, the courts would hold to be irremovable. But in 
 order that such an agreement may be enforced against the 
 purchaser of the reversion, he must know of its existence, 
 either actually or constructively, through its appearance in 
 the lease. 27 The same general rules are held to apply to the 
 fixtures annexed to the freehold by the mortgagee. 28 
 
 17. Fixtures erected by licensee. As between licensor 
 and licensee, the same general rule that obtains to fixtures an- 
 nexed to the land by a tenant, applies, and because of the 
 limited and oft-times uncertain right of the licensee, which is 
 held not to entitle him to an interest or estate in the realty, 
 as to which his license extends, 20 in annexations to the land 
 made by him, there is generally an absence of intention of 
 permanency. A building, or other immovable property, an- 
 nexed to the land by a licensee, does not, therefore become 
 a fixture, unless the intent to part with the ownership of the 
 
 2Beck v. Rebow, 1 P. Wms. 94; Lawton v. Lawton, 3 Atk. 15; 
 Grymes v. Boweren, 6 Bing. 437; Antoni v. Belknap, 102 Mass. 193; 
 Vauphen v. Haldeman, 33 Pa. St. 522; Hays V. Doane, 11 N. J. Eq. 84; 
 Montague V. Dent, 10 Rich. 135; Philbrick v. Ewing, 97 Mass. 133. 
 
 27 Stevens v. Rose (Mich.), 37 N. W. Rep. 205. 
 
 28 Cook V. Cooper, 18 Oreg. 142. In Springfield Foundry & Machine 
 Co. r. Cole ( 130 Mo. 1 ) , the rule as to the removal of fixtures between 
 grantor and grantee and mortgagor and mortgagee, is said to be re- 
 laxed, in the case of landlord and tenant, for the encouragement of 
 mechanical and similar pursuits and because of the temporary character 
 of the relation existing. 
 
 2Boone v. Stover, 66 Mo. 430; Chenowitch v. Granby Co., 74 Mo. 
 174; United States v. Gratiot, 14 Pet. (U. S.) 526; East Jersey Co. v. 
 Wright, 32 N. J. Eq. 248; Grove v. Hodges, 55 Pa. St. 504; Young v. 
 Ellis, 91 Va. 297; Genet v. Delaware Co., 136 N. Y. 602; Consolidated 
 Co. v. Peers, 150 111. 344; Paul v. Cragnas (Nev.), 59 Pac. Rep. 957; 
 Plummer v. Hillside Co., 160 Pa. St. 483, 20 Amer. & Eng. Enc. Law 
 (2 ed.) 777. 
 
 99
 
 CH. n.] FIXTURES. 18 
 
 personal property so annexed is clearly apparent. 30 Fully 
 as much importance is attached to the relation of the party 
 making the annexation, to the land and the permanency and 
 habitual character of the annexation, as is paid to the man- 
 ner or form of the fastening. When the absolute owner of 
 land, for the better use of his land, erects property upon, or 
 attaches it to the freehold, it will go to his heir, or pass by 
 deed, to his grantee, and the same general rule applies be- 
 tween mortgagor and mortgagee, but as between landlord and 
 tenant and licensor and licensee, this rule is relaxed, with a 
 view to the encouragement of mechanical and agricultural 
 pursuits. 31 
 
 18. Time for removal of fixtures. If the tenant desires 
 to exercise the right to remove fixtures, he must do so during 
 his tenancy, or at least while he is in possession and holding 
 over. If the landlord has entered and resumed possession, 
 his right is gone, and the fixtures become the property of the 
 landlord. 32 So, also, if, at the expiration of his term, the 
 tenant accepts a new lease, in which there is no reservation 
 of the right to remove the fixtures erected under the first 
 lease, the tenant's right in the fixture is lost. 83 If the term 
 
 aoSalley v. Robinson, 96 Me. 474, 52 Atl. Rep. 930; Foundry & Ma- 
 chine Co. v. Cole, 130 Mo. 1. 
 
 si Foundry & Machine Co. v. Cole, 130 Mo. 1 ; Thomas v. Davis, 76 
 Mo. 72; Brown v. Baldwin, 121 Mo. 126; Graves v. Pierce, 53 Mo. 423. 
 And in the late case of Salley v. Robinson (96 Me. 474, 52 Atl. Rep. 
 930), a building erected by a licensee on land of the licensor, was held 
 not to become a fixture, but to retain its character of personalty. 
 
 32 Stevens v. Burnham, 62 Neb. 672, 87 N. W. Rep. 546 ; Weston v. 
 Woodcock, 7 M. & W. 14; Dingley v. Buffum, 57 Me. 381; Leader v. 
 Homewood, 5 C. B. (N. s.) 546; Burk v. Hollis, 98 Mass. 55; Pugh v. 
 Arton, L. R. 8 Eq. 626; Kutter v. Smith, 2 Wall. 491 ; Cromie v. Hoover, 
 40 Ind. 59; Dubois v. Kelly, 10 Barb. 496; Leman v. Best, 30 111. App. 
 323; Darrah V. Baird, 101 Pa. St. 265; Smith v. Park, 31 Minn. 70; 
 Erickson v. Jones (Minn.), 35 N. W. Rep. 267; Childs v. Kurd, 32 W. 
 Va. 66; Atkinson v. Dixon, 96 Mo. 588. 
 
 3Laughran t;. Ross, 45 N. Y. 792, 6 Am. Rep. 173; Marks v. Ryan, 
 63 Cal. 107; Second Nat. Bank v. Merrill Co. (Wis.), 34 N. W. Rep. 
 
 23
 
 18 FIXTURES. [PART i. 
 
 is forfeited by any act of the lessee, his assignee or sublessee, 
 has a reasonable time, after such a termination of the lease, 
 in which to remove the fixtures. 84 
 
 514, note; Carlin r. Ritter, 63 Md. 478; Mueller v. C. M. & St. P. Co., 
 Ill Wis. 300, 87 N. \V. Rep. 239. 
 
 < Stansfield r. Portsmouth, 4 C. B. (N: s.) 119. Trade fixtures, 
 taken upon property by a tenant, may be removed by him, at the end 
 of his term, and no intention of abandonment can be gathered from his 
 acts, unless, after the expiration of his term, he leaves the fixtures on 
 the premises. A renewal of the lease or a second lease would rebut any 
 presuntfption of an abandonment. Radey v. McCurdy, 209 Pa. 306, 58 
 Atl. Rep. 558. In the case of tenants for life or at will, the rule is 
 somewhat relaxed, and they are permitted to remove their fixtures after 
 the expiration of their term. Weston v. Woodcock, supra; Ombony v. 
 Jones, 19 N. Y. 234. And the time for removal, at any time, may be 
 extended, by agreement of the parties. Torrey v. Burnett, 38 N. J. L. 
 457, 20 Amer. Rep. 421; McCracken v. Hall, 7 Ind. 30; Van Ranseller 
 r. Penniman, 6 Wend. 569; Bernheimer v. Adams, 75 N. Y. S. 93, 70 
 App. Div. 1 14. A tenant who holds over, after the expiration of his 
 term against the landlord's will, is so far a trespasser as to forfeit his 
 right to remove fixtures. Dreiske f. Lumber Co., 107 111. App. 285. 
 A new lease, silent as to the right to remove fixtures, when accepted by 
 a tenant, also terminates the right. Champ Spring Co. v. Roth Tool 
 Co. (Mo. App. 1903), 77 S. W. Rep. 344. But see Baker v. McClurg, 
 198 111. 28, 64 N. E. Rep. 701, 59 L. R. A. 131. And where landlord 
 prevents removal, see Podlech v, Phelan, 13 Utah 333, 44 Pac. Rep. 838. 
 24
 
 CHAPTER III. 
 
 PRINCIPLES OF THE FEUDAL SYSTEM. 
 
 SECTION 19. What is tenure. 
 
 20. Feudal tenure. 
 
 21. Feud or Fief. 
 
 22. Subinfeudation. 
 
 23. The manor and its system of dividing up its lands. 
 
 24. Feoffment and livery of seisin. 
 
 25. Tenure in the United States. 
 
 26. Estates Classes of. 
 
 27. Same Estates in possession and in expectancy. 
 
 28. Joint and several estates. 
 
 19. What is tenure. It may be stated as a general rule, 
 though controverted by eminent authority, that in any sys- 
 tem of jurisprudence, there cannot be an absolute owner- 
 ship in lands. The right of property or interest in them 
 must always be qualified, that interest being known in the 
 English and American law as an estate. A man can have 
 only an estate in the land, the absolute right of property be- 
 ing vested in the State. An estate has, in respect to real 
 property, the three elements, the right of posses- 
 sion, right of enjoyment, and right of disposition, 
 subject to the right of the State to defeat it, and 
 appropriate it to the public use, or for the public good. In 
 what cases, and under what circumstances, the State can 
 exercise this power of appropriation, and to what extent the 
 rights of possession, enjoyment and disposition may be 
 limited by the imposition of restrictions, depends upon the 
 policy of each system of jurisprudence. In some States 
 the restrictions are numerous, while in others they are few, 
 the right of property being almost absolute in the individual. 
 But nowhere can the private right of property be said to be 
 
 25
 
 20 THE FEUDAL SYSTEM. [PART I. 
 
 absolute. The absolute right of property being in the State, 
 the right of ownership, which an individual may acquire, 
 must, therefore, in theory at least, be held to be derired 
 from the State, and the State has the right and power to 
 stipulate the conditions and terms, upon which the land may 
 be held by individuals. These conditions and terms, and the 
 rights and obligations arising therefrom, constitute what is 
 known as tenure or land tenure. 
 
 20. Feudal tenure. The English common law of real 
 property, the source of our own law, is founded upon the 
 doctrines of the feudal system. It is not proposed to present 
 here a detailed account of that Barbaric system; for, al- 
 though it long survived the necessities of the barbaric life, 
 which brought it into existence, it has for some time ceased 
 to exist, and only prevailed in this country to a limited ex- 
 tent. But a passing notice must be given to it, in order to 
 explain the terms and phrases, which have been handed down 
 to us from the feudal age, and which we now find in daily ap- 
 plication to the law of real property. 1 According to the 
 feudal theory, all estates were derived from the king. He 
 was called the lord paramount, and in him was vested the 
 absolute right of property. .As a return or compensation 
 
 i " The principles of the feudal system underlie all the doctrines of 
 the common law in regard to real estate, and, wherever that law is 
 recognized, recourse must be had to feudal principles to understand and 
 carry out the common law. The necessity of words of limitations in 
 deeds the distinction between words of limitation and of purchase, 
 the principle that the freehold shall never be in abeyance, that a remain- 
 der must vest during the continuance of a particular estate, or eo 
 instanti that it determines, that the heir cannot take as a purchaser, 
 an estate, the freehold of which, by the same deed, is vested in the ances- 
 tor, and many more rules and principles of very great practical impor- 
 tance and meeting us at every turn in the American, as well as the 
 English law of real estate, are all referable to a feudal origin." 2 Shars. 
 Bl. Comm. 78. See Lyle v. Richards, 9 Serg. & R. 333, and McCall v. 
 Neely, 3 Watts 71; 1 Pollock & Maitlands Hist. Eng. Law 210, 211; 
 Digby, Hist. Real Prop. 34. 
 26
 
 ;H. IIL] THE FEUDAL SYSTEM. 20 
 
 ? or the possession and enjoyment of the land, the owners, or, 
 is they were called, vassals, were obligated to render the king 
 ;ertain services, the failure to perform which defeated the 
 estate, and caused it to revert to the lord paramount. The 
 obligation of citizenship, apart from the obligations of a ten- 
 ant of lands, was unknown to the feudal age. 2 It is not 
 known positively whether the feudal system prevailed to any 
 extent under the Saxon laws; 3 but certainly it is not met 
 with, in its thorough and complicated organization, until the 
 conquest. Upon his accession to the throne of England, Wil- 
 liam of Normandy, either by confiscation or surrender, volun- 
 tary or involuntary, brought about the general establish- 
 ment of the feudal system. The lands of those who fought 
 under the banner of Harold at Hastings were confiscated and 
 distributed among the Norman chiefs. And subsequently, in 
 order to obtain the protection guaranteed to all vassals, most 
 of the other land-owners surrendered their lands and re- 
 ceived them back, as vassals of the king. The lands were 
 distributed among the chiefs, both Saxon and Norman, who 
 swore allegiance to the king, and obligated themselves to 
 render certain services, principally military in their char- 
 acter. These chiefs were known as barons. They then 
 
 2 1 Washburn on Real Prop. 46, citing 3 Guizot. Hist. Civ. 108. 
 
 s 1 Washburn on Real Prop. 38 ; 2 Bla. Com. 48 ; Co. Litt. 76 b. ; 1 
 Spencer Eq. Jur. 9; Williams on Real Prop. 2, 3; 1 Stubbs Const. Hist. 
 Eng. 273, 274. Mr. Hallam says: "Whether the law of feudal tenures 
 can be said to have existed in England before the conquest, must be left 
 to every reader's determination. Perhaps any attempt to decide it posi- 
 tively would end in a verbal dispute. In tracing the history of every 
 political institution, three things are to be considered, the principle, 
 the form, and the name. The last will probably not be found in any 
 genuine Anglo-Saxon record ; of the form of the peculiar ceremonies and 
 incidents of a regular fief, there is some, but not much, appearance. But 
 they who reflect upon the dependence in which free and even noble ten- 
 ants held their estates of other subjects, and upon the privileges of ter- 
 ritorial jurisdiction, will, I think, perceive much of the intrinsic char- 
 acter of the feudal relation, though in a less mature and systematic 
 shape than it assumed after the Norman Conquest." Hallam's Middle 
 Apes, p. 88. 
 
 27
 
 22 THE FEUDAL SYSTEM. [PART I. 
 
 parcelled out the lands allotted to them among their ad- 
 herents or vassals, who, in return therefor, performed services 
 to their barons or lords.* 
 
 21. Feud or Fief. When land was conveyed to the tenant 
 or vassal it was called a feud, fief or fee. It was at first 
 only for the life of the tenant. Under the early feudal sys- 
 tem an estate of inheritance was unknown. Afterwards it 
 became customary to grant a fief or feud to a tenant and his 
 sons, and subsequently to him and his heirs. 5 For a long 
 time after the conquest a vassal could not alien his land with- 
 out the consent of the lord. It was a personal confidence re- 
 posed in him, and a full power of alienation would have en- 
 abled him to let an enemy of the lord into possession of his 
 lands. A similar rule prevailed in respect to the alienation 
 of the manor by the lord. The consent of the tenant had to 
 be obtained. 6 But the tenant, notwithstanding, had a re- 
 stricted power of alienation, known as 
 
 22. Subinfeudation. The tenant could let out the land 
 granted to him to sub-tenants, who rendered services to the 
 tenant, while the tenant remained under obligation to the 
 lord for the services due to him. There was then no such 
 thing as absolute alienation. The conveyance always pro- 
 vided that the grantees should hold as tenants of the grantor, 
 and render certain specified services to the grantor. 7 But 
 
 " Homage " and " fealty," in the form of oaths of allegiance, were 
 exacted; respectively, from the lord to the king, and from the tenant to 
 the lord, in return for the lands allotted them, except in the case of 
 "tenancies at will." 1 Pollock & Maitlands Hist. Eng. Law 215, 277; 
 Digby, Hist. Real Prop. 76. 
 
 IWashburn on Real Prop. 40, 41, 51, 52. 
 
 1 Washburn on Real Prop. 51; 2 Bla. Com. 57. For distinction be- 
 tween a " feud," or " fief " and " allodial " land, or that which was held 
 in one's own right, without dependence, or obligation to render service, 
 see 2 Bl. Com. 104; Co. Litt. 65; Digby, Hist. Real Prop. 13, 30. 
 
 1 \ Washburn on Real Prop. 53, 54; Williams on Real Prop. 3, 4. 
 
 28
 
 CH. III.] THE FEUDAL SYSTEM. 23 
 
 the doctrine of subinfeudation was abolished by the statute 
 Quid Emptores, 18 Edw. I, and the tenant was given in- 
 stead a free power of alienation. 8 The purchaser was by 
 the statute substituted in the place of the tenant in respect 
 to the services to be rendered to the lord. But this statute, 
 as well as the magna charta, only prohibited subinfeudation 
 of the entire feud. In a grant, therefore, of a less estate 
 than the one owned by the tenant, subinfeudation may still 
 take place. 9 The services, which the tenant was under ob- 
 liagtion to render to the lord, varied in character with the 
 tenure under which they held the land, and this brings us 
 to the explanation of 
 
 23. The manor, and the system of dividing up its lands 
 among the tenants. The sections or parcels, into which the 
 land was divided, were called manors and seignories. The 
 lord reserved such a portion of the manor land as was neces- 
 sary or desirable for his own private use. The remainder 
 was divided into four parts or parcels. One part for the 
 tenants, from whom he expected military service in defence 
 of himself and his lands, and therefore this land was held 
 under military tenure. It was also called a proper feud, as 
 distinguished from improper feuds, which constituted a sec- 
 ond part of the manor lands given to tenants, who were 
 obliged in return for the feud, to give to the lord a certain 
 proportion of the crops, or to plough the lord's land. This 
 
 s 1 Washburn on Real Prop. 54, 55. 
 
 For a common example of modern subinfeudation, see post, sect. 139, 
 where an assignment is distinguished from a sublease. Until the statute, 
 Quia Emptores, the tenant but not the lord could " alienate the 
 whole or any part of the land, by way of subinfeudation, and the whole, 
 though perhaps not a part of it, by way of substitution," and by this 
 statute, the transferee was substituted for the original tenant from 
 whom the same service and " fealty " to the lord was required, in pro- 
 portion to the quantity of land conveyed. 1 Pollock & Maitlands Hist. 
 Eng. Law, 310, 336. 
 
 29
 
 24 THE FEUDAL SYSTEM. [PART I. 
 
 was called socage tenure. A third part was given to the 
 lord's villeins who did the menial services upon the manor, 
 and were a species of agricultural slave, which was quite 
 common under the feudal system, and has existed in Russia 
 within the memory of the present generation. The origin 
 of the word villein is very doubtful, some deriving it from 
 villa, a country farm. The fourth part was the waste land, 
 consisting of woodland, from which the tenants were per- 
 mitted to obtain their estovers, and of meadow land on which 
 they fed their cattle. 10 The villeins possessed only what were 
 known as copyhold estates. The copyhold has never obtained 
 in this country, and there will be no further mention of 
 them. The other tenants, being freemen, were given, what 
 were called freehold estates. The freehold was at least an 
 estate for the life of the tenant, "it being considered," Mr. 
 Blackstone says, "that the smallest interest, which was worthy 
 of a freeman, was one which must endure during his life." u 
 The term feud is properly applicable only to freeholds. 
 
 24. Feoffment and livery of seisin. The transaction by 
 which a feud was conveyed to a tenant was called a feoff merit, 
 and the operative ceremony, livery or investiture of seisin. 
 It will not be necessary to describe this ceremony in the 
 present connection, especially since a detailed account of it is 
 given elsewhere. 12 Seisin is an old legal term, which means 
 possession; but since the livery of seisin was an incident 
 only of freehold estates, it has come to have the more quali- 
 
 10 1 Washburn on Real Prop. 45-48; Williams on Real Prop. 48, 119. 
 
 " 2 Bla. Com. 237. By the statute, 12 Car. II, c. 24 (passed in 1660) , 
 all military tenures were abolished, in England, and the freeholder be- 
 came, practically, the owner of the soil. 2 Bl. Com. 76; Digby, Hist. 
 Real Prop., c. 39; Tiffany on Real Prop. 13. 
 
 " Those things to which possession could not be delivered, such as 
 incorporeal things and future estates, were conveyed only by deeds of 
 " grant " and, at common law, were said to " lie in grant " as distin- 
 guished from property to which possession could be delivered. Suep. 
 Touch. 228; Co. Litt. 9a. See post, sect. 536. 
 30
 
 CH. III.] THE FEUDAL SYSTEM. 25 
 
 fied signification of the possession, which is given to a tenant 
 of the freehold. The seisin, in legal contemplation, is the 
 estate itself; and, as there can be but one seisin in fee, he 
 who has not the seisin cannot technically be said to have the 
 estate. 13 There are two kinds of seisins, seisin in fact, and 
 seisin in deed or in law. Seisin in fact is inseparable from 
 actual possession. Seisin in law is that seisin or right to 
 seisin in fact, which one may have, while not in actual pos- 
 session. Thus if A. is tenant for years, and B. has the re- 
 mainder in fee, A. has the actual possession, but no seisin, 
 since seisin is not an incident of leaseholds. But B. has the 
 seisin in law, which, when coupled with the subordinate pos- 
 session of A., will be equivalent to the seisin in fact. But if 
 A. is tenant for life, he takes the whole seisin in fact for the 
 benefit of his own life estate, and in trust for B. The sub- 
 ject will be more fully presented, and its importance ex- 
 plained, in the chapter on Remainders. 14 
 
 25. Tenure in the United States. In the charters of the 
 American Colonies, it was expressly provided that the lands 
 shall be held by the tenure of "free and common socage, and 
 not in capite by knight-service." Therefore it may be said 
 that, at an early day, feudal tenures existed in this country 
 to a limited extent. 15 But at the present day there is little, 
 if any, trace of them remaining in the American law of real 
 
 " See post, sects. 494, 495. 
 
 ** See post, sects. 297 et seq., and sects. 494, 495, 496. For derivative 
 history of the word " seisin," see 2 Pollock & Maitlands Hist. Eng. Law, 
 29. Before the Statute of Uses (27 Hen. VIII, c. 10), seisin was only 
 held to refer to the possession of a freehold estate, but after this statute, 
 the term was applied to all legal estates, whether in possession or re- 
 mainder. Tiffany, Real Prop. Sec. 15, p. 32; 2 Pollock & Maitlands Hist. 
 Eng. Law, 32; Goodeve, Real Prop. (3 ed.) 364; 1 Cruise's Dig., c. 3, 
 Sec. 34. 
 
 1 Washburn on Real Prop. 63, 64 ; Williams on Real Prop. 6, 
 Rawle's note. In Chisholm v. Georgia, 2 Dall. 470, Ch. J., Jay says: 
 " Every acre of land in this country was then, prior to the revolution, 
 held mediately or immediately by grants from the crown." 
 
 31
 
 26 THE FEUDAL SYSTEM. [PART I. 
 
 property. And so obsolete has the ancient doctrine of 
 tenures become, that writers of eminence unhesitatingly pro- 
 nounce the lands in this country to be absolutely allodial, 
 i. c., free from the burdens of tenure. 10 But all lands .in- 
 held subject to the exercise of the right of eminent domain, 
 the right to appropriate private lands to public uses, and 
 subject furthermore to the right of the State to control its 
 use, so as not to be detrimental to the public welfare. 17 
 These restrictions upon the right of property are not feudal 
 in their character; and since in most State Constitutions it 
 is provided, that in the exercise of the right of eminent do- 
 main full compensation must be made to the owners of the 
 land appropriated, the right is more properly one which the 
 sovereignty claims in respect to everything which affects the 
 commonwealth. But the fact, that there is no practical 
 tenure of lands at present, does not affect the position as- 
 sumed in preceding paragraphs. 18 The State has the right 
 to impose burdens, if consistent with its policy and the pub- 
 lic welfare, although it may not exercise it. There is, how- 
 ever, a species of tenure, still existing and fully recognized 
 in the United States, between tenants of particular estates 
 and reversioners or remainder-men, and burdens are per- 
 mitted to be imposed upon the tenant. Even where there 
 are no special burdens of tenure, there is always the implied 
 tenure which prevents the tenant from denying the title of 
 his landlord. 19 
 
 26. Estates, classes of. In the classification of the 
 estates, which may be created in lands, four principal cir- 
 
 "Van Rensselaer v. Smith, 27 Barb. 157; Cornell V. Lamb, 2 Cow. 
 652; Coombs v. Jackson, 2 Wend. 155; Van Rensselaer v. Hays, 19 N. 
 Y. 91; Van Rensselaer v. Dennison, 35 N. Y. 400. Pom. Introduc. 272; 
 
 3 Kent's Com. 518. 
 
 IT 1 Washburn on Real Prop. 65; The Commonwealth r. Tewksbury, 
 11 Mete. 57; The Commonwealth v. Alger, 7 Cush. 92; Taylor t. Porter, 
 
 4 Hill 143; The People v. Salem, 20 Mich. 479. 
 i See ante, sect. 19. 
 
 See post, sects. 65, 199. Gray, Perpetuities, sects. 22, 24. 
 32
 
 CH. Ill] THE FEUDAL SYSTEM. 27 
 
 cumstances tend to determine their natural subdivision: 
 First, the quantity or duration of the interest; secondly, the 
 quality of the interest; thirdly, the time of enjoyment; and 
 fourthly, the number of owners. Under the head of quan- 
 tity, the first division is into freeholds and estates less than 
 freehold. Freeholds are then subdivided into freeholds of 
 inheritance and freeholds not of inheritance. A freehold is 
 one which is to endure for an uncertain period, which must, 
 or at least might, last during the life of some one, it may be 
 the grantee, grantor, or some other person. 20 Estates less 
 than freehold, or leaseholds, are those which are limited to 
 endure for a certain or uncertain number of years, the un- 
 certainty, if any, being determined by the will of either or 
 both parties. And they are subdivided into estates for years, 
 at will, from year to year, and at sufferance. Estates under 
 the second heading are distinguished by their qualities. 
 Thus estates may be either absolute or determinable. A de- 
 terminable estate is one which may be determined, before the 
 natural expiration of its period of limitation by the happen- 
 ing of some contingency. Determinable estates are of four 
 kinds: estate conditional at common law or estate tail, es- 
 tate upon condition, estate upon limitation, and conditional 
 limitation. In respect to their quality, estates are also 
 divided into legal and equitable estates. A legal estate is one 
 which arises under, and is recognized by the common or 
 statutory law; an equitable estate is the product of equity 
 jurisprudence, and is cognizable solely in courts of equity. 
 
 27. Same Estates in possession and in expectancy. In 
 reference to the time of enjoyment, estates are divided into 
 two classes: estates in possession, that is, those to which the 
 right of possession is immediate ; and estates in expectancy, 
 
 20 " The word, ' freehold,' always imported the whole estate of the 
 feudatory, but varied as that varied." Butler's note, to Co. Litt. 266b. 
 It is now generally used to denote an estate for life, as distinguished 
 from an estate of inheritance. Idem. 
 
 3 33
 
 27 THE FEUDAL SYSTEM. [PAHT I. 
 
 which are to take effect in possession at some future time. 
 Estates in this connection may also be divided into executed 
 or executory, vested or contingent. An executed estate is 
 one in which the right of possession is immediate. An 
 executory estate is one which takes effect in possession at a 
 future time. A vested estate is one to which there is a 
 present fixed title, and concerning whose title there is no un- 
 certainty. A contingent estate is one to which there is only 
 a possibility of acquiring a title at some future day, upon 
 the happening of some definite contingency. A vested es- 
 tate may be either executed or executory. Thus an estate for 
 life is a vested and executed estate, while a reversion or 
 vested remainder is a vested and executory estate. An ex- 
 ecuted estate must, and can only, be vested. There cannot be 
 an executed contingent, or a contingent executed, estate. But 
 an executory estate may be either vested or contingent. 
 Thus a remainder to A. after an executed estate to B., is a 
 vested, executory estate; while a remainder to the heirs of 
 A., A. being still alive, and therefore his heirs not yet ascer- 
 tained, is an executory contingent estate. The law favors 
 vested estates and the rule is that estates are held to vest at 
 the earliest possible period, unless a contrary intention is 
 clearly manifested in the grant. 21 And with reference to the 
 vesting of estates, there is a recognized distinction between 
 the vesting of the interest and the vesting of the possession 
 in the person entitled to the enjoyment of land. An estate 
 is vested in possession, only when there is a right of present 
 enjoyment; it is vested in interest, whenever there is a pres- 
 ent fixed right of future enjoyment. 22 In the case of an 
 estate tail, at common law, transformed into a life estate or 
 fee, by the various statutes of the United States, the posses- 
 
 21 Black r. Williams, 51 Hun 280, 21 N. Y. S. 263; Hilk v. Barnard 
 (Mass.), 25 N. E. Rep. 96. 9 L. R. A. 211; Chew v. Keller, 100 Mo. 
 362, 13 S. W. Rep. 395; Tindall v. Tindall. 107 Mo. 218, 66 S. W. 
 Rep. 1092. 
 
 22 Gates r. Seibert, 157 Mo. 254, 57 S. W. Rep. 1065. 
 
 34
 
 CH. IIL] THE FEUDAL SYSTEM. 28 
 
 sion could not vest until the death of the life tenant, but 
 the remainder-man would be held to have an estate vested 
 in interest, although the possession would not vest until the 
 death of the life tenant. 23 
 
 28. Same Joint and Several estates. In the fourth 
 classification, estates are considered in respect to the number 
 of persons in whom the right of property is vested : and from 
 that standpoint they are divided into two classes; estates in 
 severalty, or those owned by one person, and joint estates, 
 which are vested in two or more persons. According to the 
 peculiar rights which the individual co-tenants of joint es- 
 tates have in them, they are subdivided into five classes: 
 joint tenancy, 2 * tenancy in common, tenancy in coparcenary, 
 tenancy by the entirety, and estates in partnership. Keep- 
 ing these elements in mind we deduce the following table of 
 estates. 
 
 as Utter v. Sidman, 170 Mo. 284, 70 S. W. Rep. 702. 
 
 2* The right of survivorship, in estates held in joint tenancy, only ter- 
 minates with the entire estate in the survivor, where the original joint 
 tenants retain their estate, at the time of the death of one of them. 
 Messing v. Messing, 71 N. Y. S. 717, 64 App. Div. 125; Norris r. Hall 
 (Mich. 1900), 82 N. W. Rep. 832. 
 
 35
 
 28 
 
 THE FEUDAL SYSTEM. 
 
 [PART i. 
 
 FREE- 
 HOLDS. 
 
 TABLE OF ESTATES. 
 
 Elates of Inheritance, j g{." Tl g? si 
 
 Estates less than 
 inheritance. 
 
 Conventional 
 Life Estates. 
 
 Legal Life 
 Estates. 
 
 Estates less than Freehold or Leaseholds. 
 
 Estate for one's own life. 
 Estate for the life of another. 
 Estate for an uncertain period 
 
 which may last during life. 
 Estate tail after possibility of 
 
 issue exinct. 
 
 Estate during coverture. 
 
 Curtesy. 
 
 Dower. 
 
 Homestead. 
 
 Estate for years. 
 
 Estate at will. 
 
 Estate from year to year. 
 
 Estate at sufferance. 
 
 Estates in Severally. 
 
 Joint Estates. 
 
 Joint tenancy. 
 Tenancy in common. 
 Tenancy in coparcenary. 
 Tenancy in entirety. 
 Tenancy in partnership. 
 
 Absolute Estates. 
 
 Determinable Estates. 
 
 Fee conditional. 
 Estate upon limitation. 
 Conditional limitation. 
 Estate upon condition. 
 Mortgages. 
 
 Estates in Possession. 
 
 Estates in Expectancy. 
 
 Reversion. 
 Remainders. 
 Contingent uses. 
 Springing uses. 
 Shifting uses. 
 Executory devises. 
 
 Legal Estates. 
 
 Equitable Estates. 
 
 Uses. 
 
 Trusts. 
 
 Mortgage by deposit of title 
 
 deeds. 
 Vendor's and Vendee's lien. 
 
 36
 
 CHAPTER IV. 
 
 ESTATE IN FEE SIMPLE. 
 
 SECTION 29. Definition. 
 
 30. Words of limitation. 
 
 31. Statutes abolishing words of limitation. 
 
 32. The power of disposition. 
 
 33. An absolute power of disposition an incident of a fee. 
 
 34. Attempted limitation after, void. 
 
 35. Liability for debts. 
 
 29. Definition. A fee simple is a freehold estate of in- 
 heritance, free from conditions and of indefinite duration. 
 It is the highest estate known to the law, and is absolute, so 
 far as it is possible for one to possess an absolute right of 
 property in lands. 1 The word fee without any qualifying' 
 adjective implies an unlimited estate of inheritance. Such 
 is also the case with the term "fee simple absolute." The 
 three terms "fee," "fee simple," and "fee simple absolute," 
 may be used interchangeably; 2 the adjectives in the last two 
 are surplusage, and are generally used for the purpose of 
 distinguishing that class of estates from those which are 
 called base or qualified 'fees. 
 
 30. Words of Limitation. The word " heirs " at com- 
 mon law is required to be used in limiting a fee simple, where 
 the estate is acquired by conveyance inter vivos. And no 
 equivalent words, which indicate the intention of the grantor 
 to convey an absolute right to the property, will suffice. 
 If the conveyance be not made to one and his heirs, the 
 
 iCo. Lit. 1 a. n. ; 2 Bla. Com. 106; 1 Washburn on Real Prop. 70. 
 22 Bla. Com. 100; Co. Lit. 1 b.; 1 Prest. Est. 420; 1 Washburn on 
 Real Prop. 76, 77. 
 
 37
 
 30 ESTATE IN FEE SIMPLE. [PART I. 
 
 grantee will take only an estate for his life, notwithstanding 
 the estate is limited by such phrases, as "to A. forever," or 
 "to A. and his successors," or to his children* or issue or 
 assigns, and the like. An express direction that the grantee 
 is to have a fee simple estate, will not supply the place of 
 the word " heirs." 4 On the other hand where the deed in- 
 dorsed on another deed conveyed all the grantor's "right, 
 title, claim, interest, property, etc., in and to the within 
 deed," it was held that the words of limitation in the within 
 deed was by reference made a part of the indorsed deed of 
 conveyance, and passed a fee simple estate to the grantee. 5 
 And, although ordinarily the covenant of title to the grantee 
 and his heirs cannot enlarge a life estate into a fee, if the 
 estate is not specially limited in the premises or habendum 
 of the deed, such a covenant would have the effect, by 
 estoppel, of granting a fee simple estate, the word "heirs" 
 having been used in the covenant. 6 If it be shown from the 
 context of the deed, or otherwise, that the grantor intended 
 to convey a fee simple estate, the proper words may be added 
 to the deed by a decree of the court in an action for the re- 
 formation of the deed. 7 If the estate be acquired by devise 
 or by legislative grant, the technical word "heirs" is not 
 necessary. The intention to create a fee simple estate may in 
 such cases be manifested by any other words or forms of 
 expression. 8 On the other hand, if the word "heirs" ap- 
 
 s But see Mauzy v. Mauzy, 79 Va. 537. 
 
 Co. Lit. 8 b. ; 4 Kent's Com. 6, note; Adams v. Ross, 30 N. J. L. 511 ; 
 Clearwater . Rose, 1 Blackf. 137; Wilder V. Wheeler, 60 N. H. 351; 
 Ford r. Johnson, 41 Ohio St. 366; Mattock v. Brown, 103 Pa. St. 16; 
 Loriok r. McCreery, 20 S. C. 424; Truesdell v. Lehman, 47 N. J. Eq. 
 218; Oyster v. Knull, 137 Pa. St. 448. 
 
 s Lemon r. Graham, 131 Pa. St. 447; 25 W. N. C. 3391; see post, 605. 
 
 6 Winborne r. Downing, 105 N. C. 20; see post, 612. 
 Vickers v. Leigh, 104 N. C. 248. 
 
 "Rutherford t?. Greene, 2 Wheat. 196; Jackson v. Housell, 17 Johns. 
 281; Godfrey v. Humphrey, 18 Pick. 537; 2 Bla. Com. 108; 1 Washburn 
 on Real Prop. 85. See Long v. Paul, 127 Pa. St. 456; Doe v. Patten, 
 38
 
 CH. IV.] ESTATE IN FEE SIMPLE. 30 
 
 pears from the context of the will to have been used by the 
 testator as a word of purchase, it will be given that construc- 
 tion, and the devisee will take only a life estate, while his 
 heirs will take a contingent remainder, notwithstanding that 
 ordinarily the rule in Shelley's Case would make it a fee 
 simple estate in the first devisee. 9 And if the conveyance 
 be to a corporation the word "successors" takes the place of 
 heirs, since a corporation cannot have heirs. 10 All technical 
 quit-claim deeds pass whatever interest the grantor has, with- 
 out words of limitation, as in the case of a release from one 
 joint tenant to another, or by a disseisee to the disseisor. 11 
 But a partition between tenants in common by mutual grants 
 or by release would require the words of limitation. So would 
 the release of a reversion to the tenant for life. 12 But where 
 there is a trust imposed upon the grantee or devisee, a fee 
 will be implied, if the trust cannot be supported or per- 
 formed without a fee. 13 And if by devise \ 2harge is im- 
 
 (Del.), 16 Atl. Rep. 558; Nolan r. Chambers, 84 Ky. 576; Craig V. 
 Ambrose, 80 Ga. 134; House f. Barber, 29 S. C. 466. 
 
 Urich's Appeal, 86 Pa. St. 386, 27 Am. Rep. 707 ; Howell f. Acker- 
 man (Ky.), 11 S. W. Rep. 8-1!). See Fountain Co., etc., Co. V. Buckle- 
 heimer, 102 Ind. 76, 52 Am. Rep. 645. 
 
 10 City of Wilkesbarre r. Wyoming, etc., Soc. (Pa.), 134 Pa. St. 616; 
 26 W. N. C. 297; Dilworth r. Gusky, 131 Pa. St. 343; Schult v. Moll 
 (N. Y.), 10 N. Y. S. Rep. 703; Pierce v. Simmons (R. I.), 1!) All. 
 Rep. 242; Robbins Ex'r v. Robbing (Ky.), 9 S. W. Rep. 254; Wood 
 r. Robertson, 113 Ind. 323; Asheville Division v. Aston, 92 N. C. 578, 
 The word " heirs " at common law, was never required in grants to 
 corporations. An aggregate corporation had perpetual succession, and 
 no words of limitation were necessary and in a corporation sole, since 
 it had no " heirs," the word successors, was generally used. 2 Bl. Com. 
 109; 4 Kent's Com. 7; Wilcox v. Wheeler, 47 N. H. 488; Wilkesbarre V. 
 Hi-torical Soc., 134 Pa. St. 616; Overseers v. Sears, 22 Pick. (Mass.) 
 120: Tiffany, Real Prop. Sec. 20. Cong. Soc. f. Stark, 34 Vt. 243; Nicoll 
 r. \. Y. & Erie R. R., 12 N. Y. 400. 
 
 " Washburn on Real Prop. 54. See post, Sec. 177. The rule in the 
 same in a release by the tenant for life to the reversioner. 2 Prest. 
 Est. 58. 
 
 '-2 Prest. Est. 56-62. See post, Sec. 172. 
 
 " White r. Woodbury, 9 Pick. 136; Sears v. Russell, 8 Gray 89; 
 
 39
 
 31 ESTATE IN FEE SIMPLE. [PART I. 
 
 posed upon the devisee to pay a certain sura of money, a fee 
 will be implied, without the use of any words of limitation 
 whatever. But this is only permissible where the estate of 
 the devisee is not expressly limited otherwise, 14 or where 
 there is not sufficient personal estate under the control of the 
 devisee to cover the expense of performing the charge ir> and 
 when the charge is an absolute personal liability of the dev- 
 isee. If the money is directed to be paid out of the rents 
 and profits of the estate, and the devisee assumes no per- 
 sonal liability, in case of the failure of the rents and profits, 
 he will take only a life estate, if there is nothing else in the 
 will indicating the intention that he shall have a fee. 18 
 
 31. Statutes abolishing words of limitation. The forego- 
 ing is a rather full statement of the requirements of the 
 common law in respect to the employment of words of 
 limitation in the conveyance of a fee simple. But in Eng- 
 land and in most of the States of this country, the rule has 
 been changed, so that in a devise of real property the in- 
 tention to convey a fee simple will be presumed, in the ab- 
 sence of an express intention to the contrary. 17 In these 
 
 Gould r. Lamb, 11 Mete. 84; Fisher v. Fields, 10 Johns. 505; Koenig's 
 Appeal, 57 Pa. St. 252; Angell v. Rosenbury, 12 Mich. 266. See post, 
 Sec. 370. 
 
 "Couch v. Eastham, 29 W. Va. 784; Hinkle's Appeal, 116 Pa, St. 
 490; Gankler v. Moran, 66 Mich. 353. 
 
 "Curtis r. Fowler (Mich.), 33 N. W. Rep. 804. 
 
 J Doe r. Richards, 3 T. R. 356 ; Godfrey v. Humphrey, 18 Pick. 537 ; 
 Wait r. Belding, 24 Pick. 138; Jackson v. Bull, 10 Johns. 148. 
 
 " Such is the law in Alabama, Arkansas, Georgia, Iowa, Illinois, 
 Kentucky, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, 
 New Hampshire, New York, New Jersey, North Carolina, South Caro- 
 lina, Texas, Virginia; 1 Washburn on Real Prop. 52, note 3, 86, note 3; 
 Williams on Real Prop. 20, 1; Traphagen V. Levy, 45 N. J. Eq. 448; 
 Doe v. Patten (Del.), 16 Atl. Rep. 558; Crain V. Wright, 114 N. Y. 307; 
 Little V. Giles, 25 Neb. 313; Barnes V. Boardman, 149 Mass. 106; Smith 
 v. Greer, 88 Ala. 414; Cook v. Couch, 100 Mo. 29; Moffat v. Cook, 150 
 Mass. 529; Teaney v. Mains (Iowa 1901), 84 N. W. Rep. 953; Kron v. 
 Kron (1902), 195 111. 181, 62 N. E. Rep. 809; Chamberlain v. Runkle 
 40
 
 CH. IV.] ESTATE IN PEE SIMPLE. 32 
 
 States, a devise to A. would now give him a fee, while for- 
 merly he would only have taken a life estate. But if the 
 testator shows in any part of the will an intention to give 
 only a life estate, the general devise of the estate will be con- 
 strued only to pass the life estate. 18 This abrogation of the 
 common-law rule has also in some of the States been extended 
 to conveyances inter vivos. 10 The rule had in the course of 
 time become purely arbitrary, the reasons for the same hav- 
 ing long since passed away with the advancement of civili- 
 zation. 
 
 32. The power of disposition. Originally the greatest 
 estate granted to a tenant was an estate for life, and when, 
 afterwards, lands were granted to one and his heirs forever, 
 the heirs were deemed to be co-equal grantees, or donees, with 
 the first taker. In consequence, the power of alienation 
 was not given to the owner of such an estate. Subsequently, 
 he was allowed to convey it, with the consent of the lord and 
 the presumptive heir. 20 Then, in the time of Henry I and 
 II, the right was given to defeat the inheritance of all the 
 heirs, except the oldest son. 21 The statute Quia Emptores 
 refers only to alienations inter vivos and for a long period 
 in the history of the common law, it was impossible to make 
 
 (Ind. 1902), 63 N. E. Rep. 486; Ball v. Woolfolk, 175 Mo. 378, 75 S. 
 W. Rep. 410; Flanary v. Kane (Va. 1904), 46 S. E. Rep. 681; Shirley 
 V. Clark (Ark. 1904), 81 S. W. Rep. 1057. 
 
 isTillett v. Aydlett, 93 N. C. 15; Leeper v. Neagle, 94 N. C. 338; 
 Corby v. Corby, 85 Mo. 371; Williams V. McKinney, 34 Kan. 514; 
 Lowrie v. Ryland, 65 Iowa, 584 ; Dew v. Kuehn, 64 Wis. 293. 
 
 i Such is the case in Alabama, Arkansas, Georgia, Illinois, Iowa, 
 Kentucky, Mississippi, Missouri, Nebraska, New Hampshire, New York, 
 Maryland, Tennessee, Virginia, Texas; 1 Washburn on Real Prop. 52, note 
 3; 2 Greenl. Cruise, 354; Williams on Real Prop. 19, note 1. See 
 Jarvis v. Davis (N. C.), 5 S. E. Rep. 227; Warner v. Willard, 54 Conn. 
 470 Tr. ; Utter v. Sidman, 170 Mo. 284, 70 S. W. Rep. 702; Bain v. 
 Staab, 65 Pac. Rep. 177. 
 
 20 1 Washburn on Real Prop. 78, 79; Maine, Anc. Law 230. 
 
 21 1 Washburn on Real Prop. 79. 
 
 41
 
 33 ESTATE IN FEE SIMPLE. [PART I. 
 
 n disposition of a freehold, by will. But in the thirty-second 
 year of the reign of Henry VIII, a statute was passed, which 
 permitted a devise of real estate. The power of devising 
 lands by will was enjoyed in time of the Saxons, but was 
 abolished by the Norman feudal system, except in certain 
 favored localities, which were exempt from the burdens and 
 restrictions of that system. 22 To what extent the power of 
 alienation may now be restricted, in fee simple estates, will 
 be shown in the subsequent chapter on estates upon con- 
 dition, but since the statute Quia Emptores, in alienations 
 inter vivos, as well as in devises 
 
 33. An absolute power of disposition is an incident of a 
 fee. In the leading case of Jackson v. Robbins, 23 the effect 
 of an absolute power of disposition, in the devisee, was con- 
 sidered and it was said: " We may lay it down as an in- 
 controvertible rule that when an estate is given to a person 
 generally or indefinitely, with a power of disposition, it car- 
 ries a fee, and the only exception to the rule is that when 
 the testator gives to the first taker an estate for life only, by 
 certain and express words, and annexes to it a power of dis- 
 posal, in that particular and special case, the devisee for life 
 will not take an estate in fee, notwithstanding the "distinct 
 and naked gift of a power of disposition of the reversion. 
 This distinction is carefully marked and settled in the cases." 
 The Court, in the above case, was considering the effect of a 
 general power of disposition in connection with the construc- 
 tion of a devise. Before the various statutes abolishing the 
 necessity for words of inheritance, in the creation of a fee, in 
 conveyances, no such formality was required in wills, and 
 since the enactment of statutes upon this subject, in the 
 various States, a general power of disposition is held, very 
 generally, to be incidental to a fee-simple estate. 24 
 
 "See, Chapter, Title by Devise. 
 23 16 Johns. 288. 
 
 2< Green r. Sutton, 50 Mo. 186, a leading case, citing Jackson r. Eob- 
 42
 
 CH. IV.] ESTATE IN FEE SIMPLE. 34 
 
 34. Attempted limitation after void. A fee simple estate 
 includes the whole interest and property in a tract of land 
 and after the grant of a fee, since the grantor would retain 
 no interest in the land conveyed, any subsequent limitation 
 would be held to be inconsistent with the estate granted and 
 would be void. For instance, after the grant of a tract of 
 land to the grantee, "his heirs and assigns," a provision that 
 the land should be exempt from debts created by the grantee, 
 where he was given an absolute power of disposition, was 
 held to be incompatible with the grant of the fee simple es- 
 tate and void. 23 And so would be a provision, after the 
 grant of a fee, that if the grantee should die without issue, 
 ' ' then said lands, or the proceeds should revert to the grantor, 
 or his heirs. ' ' 20 But where the grant does not create or con- 
 bins, supra; English v. Beehle (32 Mo. 186) ; Fanning v. Doan (128 Mo. 
 323), where the power of disposal was presumed from the use of the 
 word "assigns"; Johnson T. Morton (Texas), 67 S. W. Rep. 790; Ray 
 v. Spears (Ky.), 64 S. W. Rep. 413. In Cornwall v. Wulff (148 Mo. 
 542 ) , counsel contended that this doctrine rested alone upon the great 
 name of Kent, but the court, per Gantt, C. J., observed: "If so, it 
 has no ignoble origin, but this is not true, though his recognition of the 
 rule has no doubt added to its stability." Van Home v. Campbell, 100 
 N. Y. 287; 4 Kent's Com. (12 ed.) star p. 270. But see, Walton r. 
 Drumtra, 152 Mo. 489; 1 Prest. Est. 477; Bradley v. Peixoto, 3 Ves. 
 jr. 324; Blackstone Bank v. Davis, 21 Pick. 42; McWilliams v. Nisley, 
 2 Serg. & R. 507; Stewart v. Brady, 3 Bush, 623; Greene v. Greene, 125 
 N. Y. 506; Potter v. Couch, 141 U. S. 296. The power to "sell and 
 convey " in the absence of limitation, grants a fee-simple estate. St. 
 Louis Land Ass'n r. Fueller, 182 Mo. 93; 81 S. W. Rep. 414. See, also, 
 Carr v. Field (Ky. 1904), 80 S. W. Rep. 448; Ball v. Woolfolk, 175 Mo. 
 378, 75 S. W. Rep. 410. 
 
 25 Ricks v. Pope, 129 N. C. 52, 39 S. E. Rep. 638; Ray v. Spears (Ky. 
 1901), 65 S. W. Rep. 867; Green v. Sutton (a leading case), 50 Mo. 
 186; Stewart r. Stewart, 186 111. 60; 57 N. E. Rep. 885; White r. 
 Dedman (Tex. 1900), 57 S. W. Rep. 870; McMichel v. McMichel, 51 S. 
 C. 555 ; Martin r. Jones, 62 Ohio St. 519, 57 N. E. Rep. 238. 
 
 28 Ray v. Spears, 64 S. W. Rep. 413, 65 id. 867. See, also, Kron 
 v. Kron, 195 111. 181; 62 N. E. Rep. 809; Brien V. Robinson, 102 Tenn. 
 i:>7, 52 S. W. Rep. 802; Printup v. Hill (Ga. 1901), 107 Fed. Rep. 
 789. 
 
 43
 
 35 ESTATE IN PEE SIMPLE. [PART I. 
 
 vey an absolute estate in the premises, but only a user, or 
 right to the possession for particular purposes, since the fee 
 simple estate would not be conveyed by such an instrument, 
 a subsequent limitation would not be inconsistent with the 
 grant and would be upheld. 27 
 
 35. Liability for debts. This was not originally an inci- 
 dent of freehold estates. They were first made liable to exe- 
 cution for the debts of the owner during his lifetime by the 
 statute 13 Edw. I, ch. 18. But there was no provision in the 
 English law, until Stat. 3 and 4, Will. IV, ch. 104, for sub- 
 jecting the estates of decedents to the satisfaction of all the 
 debts of the ancestor. In this country lands are generally 
 liable for the debts of the owner, in all forms of actions, be- 
 fore and after his death, and in the hands of his heirs and 
 devisees. 28 
 
 2'Tupper r. Ford, 73 Vt. 85, 50 Atl. Rep. 547; Blain v. Staab (N. M. 
 1901), 65 Pac. Rep. 177. 
 
 28 1 Greenl. Cruise, 60, n. ; Watkins v. Holman, 14 Pet. 63 ; Wyman v. 
 Briglen, 4 Mass. 150; see post, Sec. 529; Bellas v. McCarthy, 10 Watts 
 31; 4 Kent's Com. 420; Williams on Real Prop. 81, Rawle's note. For 
 enforcement of creditor's rights, in equity, against land, see, 3 Pom. Eq. 
 Jur. Sees. 1413, 1415. 
 44
 
 CHAPTER V. 
 
 ESTATES TAIL. 
 
 SECTION 36. Base or qualified fees. 
 
 37. Fee conditional at common law. 
 
 38. Estates tail. 
 
 39. Necessary words of limitation. 
 
 40. Estates tail created by implication. 
 
 41. Classes of estates tail. 
 
 42. How estates tail may be barred. 
 
 43. Merger of an estate tail. 
 
 44. Estate tail after possibility of issue extinct. 
 
 45. Estates tail in the United States. 
 
 36. Base or qualified fees. Whenever a fee is so qualified, 
 as to be made to determine, or liable to be defeated, at the 
 happening of some contingent event or act, the fee is said 
 to be" base, qualified, or determinable. There are four classes 
 of such fees, viz: fee upon condition, fee upon limitation, a 
 conditional limitation, and a fee conditional at common law. 
 Some authors apply the term base fee solely to the last class; 
 but for all practical purposes, either of the above names may 
 be applied to either or all. 1 The first three classes will be 
 treated at length in the chapter on estates upon condition. 2 
 
 37. Fee conditional at common law. At an early day, as 
 far back as the time of Alfred, it was the custom to limit 
 estates to one and particular heirs, instead of his heirs in 
 general. Generally, it was to the heirs of his body, i. e., his 
 
 1 1 Washburn on Real Prop. 88-91 ; 2 Bla. Com. 109 ; 1 Prest. Est. 466- 
 475; Seymour's Case, 10 Rep. 97; 1 Spence Eq. Jur. 144; Co. Litt. 199; 
 Digby Hist. Real Prop. 161. A base or qualified fee is not void, in 
 North Carolina. Keith v. Scales, 32 S. E. Rep. 809. 
 
 2 See Chapter, Estates upon condition. 
 
 45
 
 g 33 ESTATES TAIL. [PART I. 
 
 issue, his lineal heirs. But it can be limited to any other 
 elass of heirs. If the first taker died leaving no heir of that 
 kind, the estate was defeated and reverted to the donor. But 
 as soon as that class of heirs came into being, as, in the case 
 of an estate to one and the heirs of his body, upon the birth 
 of a child, the condition was held to be so far performed as to 
 permit the tenant to alien or charge the land in fee simple. 
 And the subsequent death of the issue would" have no effect 
 upon the purchaser's title. 3 But, if no alienation was made 
 during the life of such heirs presumptive it would revert to 
 the donor upon the death of the tenant, just as if they had 
 never come into being.* 
 
 38. Estates tail. In consequence of the readiness with 
 which fees conditional could be converted into a fee simple, 
 great dissatisfaction was felt and manifested by the nobles 
 and landed gentry. It had been their custom to settle their 
 great estates upon their oldest sons and their issue, in order 
 to keep them within their families, and prevent their sub- 
 division into smaller estates. When fees conditional -were 
 made by judicial legislation capable of alienation upon the 
 birth of issue, the protection to their entails was taken away, 
 and the barons applied to King Edward I to grant them a 
 remedy. In compliance with this appeal, the statute "Be 
 Donis Conditionalibus " was passed in the thirteenth year of 
 
 32 Bla. Com. Ill; 2 Inst. 333; Co. Lit. 19 a, note 110; 1 Spence Eq. 
 Jur. 21, 141; Buckworth V. Thirkell, 3 B. & P. 652; Williams on Real 
 Prop. 42; Nevil's Case, 7 Coke, 34 b. 
 
 2 Inst. 332; 1 Spence Eq. Jur. 141; Williams on Real Prop. 42, 43. 
 A conditional fee, in South Carolina, is created by a deed to the grantee 
 " during his life and after his death to the lawfully begotten issue of 
 his body and should he die without such issue, then said lands to revert 
 to my children." Holman v. Wesner (1903), 67 S. C. 307; 45 S. E. 
 Rep. 206. See, also, Mattison v. Mattison, 65 S. C. 345, 43 S. E. Rep. 
 874; Shealy v. Wammock, 115 Ga. 913, 42 S. E. Rep. 239; Methodist 
 Church V. Young, 130 N. C. 8, 40 S. E. Rep. 691 ; Davis r. Hollingsworth, 
 113 Ga. 210, 38 S. E. Rep. 827; Calmes v. Jones (Ky.), 63 S. W Rep. 
 583. 
 
 46
 
 CH. V.] ESTATES TAIL. 39 
 
 the reign of Edward I. By this statute fees conditional, 
 which were limited to the heirs of one's body, were made 
 inalienable under any circumstances. It was held that the 
 heirs do not take as purchasers, but as special heir ; neverthe- 
 less, the ancestor could not by any act of alienation defeat 
 their interest in the estate. 5 The fee conditional was then 
 called estate tail. Estates tail, therefore, to quote Mr. Wash- 
 burn's definition, "are estates of inheritance, which, instead 
 of descending to heirs generally, go to the heirs of the donee 's 
 body, which means his lawful issue, his children, and through 
 them to his grandchildren, in a direct line, so long as his 
 posterity endures in a regular order and course of descent, 
 and upon the death of the first owner without issue, the 
 estate determines. ' ' 6 The tenants in tail cannot alien the 
 estate, but it has all the other characteristics of a fee simple. 
 The tenant can freely commit waste; nor is he under any 
 obligation to the reversioner to pay off an incumbrance or 
 keep down the interest on it. 7 
 
 39. Necessary words of limitation. In the creation of an 
 estate tail words of limitation must be used, which indicate 
 clearly what heirs are to take. The usual form of limitation 
 is to one and the heirs of his body. But any other equivalent 
 
 32 Prest. Est. 378-380; 2 Bla. Com. 112-116; 2 Inst. 332, 333; 1 
 VVaslihurn on Real Prop. 94, 95. 
 
 o 1 Washburn on Real Prop. 99; 2 Prest. Est. 360; Williams on Real 
 Prop. 43, 44. 
 
 7 Co. Lit. 224 a; 2 Bla. 115; Liford's Case, 11 Rep. 50; Jervis V. 
 Benton, 2 Vern. 251; Chaplin v. Chaplin, 3 P. Wms. 229. But a receiver 
 may be appointed to collect the rents and .profits of an estate tail to 
 keep down the interest on incumbrances. Story's Eq. Jur., Sec. 835 ; 
 Bertie v. Abingdon, 3 Merw. 560. Dower and curtesy are incidents of 
 estates tail. 1 Washburn on Real Prop. 107; Co. Lit. 224 a; post, Sees. 
 78, 86. Tenant in tail cannot charge the inheritance with his debts and 
 obligations after his death. Liford's Case, 11 Rep. 50; Wharton V. 
 Wharton, 2 Vern. 3; Partridge v. Dorsey, 3 Har. & J. 302; 1 Cruise 
 Dip. 84; Williams on Real Prop. 57, 58. But his interest in the same, 
 %iz.. liis life estate may be sold for the satisfaction of his debts. 1 
 Washburn on Real Prop. 107; Williams on Real Prop. 58, 59. 
 
 47
 
 39 ESTATES TAIL. [PART I. 
 
 expressions would be sufficient, provided the word "heirs" 
 was not omitted. 8 The same distinction as to construction be- 
 tween estates created by deed and by will, mentioned in con- 
 nection with fees simple, applies here. So that in the case 
 of a devise, an estate will be held to be one in tail, whatever 
 may be the words of limitation used. Thus a devise to A. 
 and his seed, or his issue, or his heirs male, etc., all showing 
 an intention to create an estate tail, would be held a good 
 limitation of an estate tail. 9 And very often the gift will be 
 construed to be an estate tail, where there is no direct limita- 
 tion to the heirs of his body, as where there was a devise to 
 A. and if he should die without issue of his body, then to B. 
 The intention is so clear that B. is to have it only after the 
 termination of what would be an estate tail, that A. was held 
 to have such an estate by implication. 10 
 
 82 Prest. Est. 480-482-485; 1 Washburn on Real Prop. 104, 105; Co. 
 Lit. 20 b; 2 Bla. Com. 115; Weart v. Cruser, 49 N. J. L. 75; Lehndorf 
 r. Cope (111.), 13 N. E. Rep. 505 (to M. "and her heirs by her present 
 husband, H.") ; Ford V. Johnson, 41 Ohio St. 366 (word heirs omitted, 
 and grantee took only a life estate). But see Fletcher v. Fletcher, 88 
 Ind. 418, where the word "children" was held to mean heirs of the 
 body. An estate tail may be created by a quit claim deed, as it is not 
 a mere release, but a complete transfer. Chew v. Kellar, 171 Mo. 215, 
 71 S. W. Rep. 172. Adopted children will not take as remaindermen, 
 under a deed to one and the " heirs of his body." Clarkson V. Hatton, 
 143 Mo. 47. 
 
 2 Bla. Com. 115; Co. Lit. 27 a; Nightingale v. Burrell, 15 Pick. 104; 
 Arnold v. Brown, 7 R. I. 196; Hill V. Hill, 74 Pa. St. 173; s. c. 15 Am. 
 Rep. 545; Reinoehl v. Shirk, 119 Pa. St. 108. 
 
 10 Arnold v. Brown, 7 R. I. 196; 1 Washburn on Real Prop. 100; Idle v. 
 Cooke, 2 Ld. Raym. 1152; Hayward v. Howe, 12 Gray, 49. According 
 to the intention of the testator, it will either convert it into an estate 
 tail, or, if the prior limitation has sufficient words of limitation, the 
 prior limitation will be construed to be a fee simple, liable to be de- 
 feated by the failure of issue, and the limitation over will take effect 
 as an executory devise. Such was held to be the proper construction in 
 the case of Hill v. Hill, 74 Pa. St. 173, 15 Am. Rep. 545. See also Al- 
 lender's Lessee v. Sussan, 33 Md. 11, 3 Am. Rep. 171. 
 
 48
 
 CH. V.] ESTATES TAIL. 41 
 
 40. Estates tail created by implication. Under the com- 
 mon law of England, and in the United States, where es- 
 tates in tail have not been abolished, by statute, an estate 
 tail may be created by implication. 11 The requisites of an 
 express grant or devise, of an estate tail, are, that in ad- 
 dition to the word "heirs" there should be words of pro- 
 creation, which indicate the body from which these heirs are 
 to proceed, or the person by whom begotten. The general 
 limitation to a man and the heirs of his body is sufficient, as 
 it is immaterial of whom they are begotten. 1 - But since the 
 statute I Victoria (ch. 26, sec. 29, passed in 1837), and by 
 many of the statutes in the United States, an estate tail can- 
 not arise, by implication, from words importing the vesting 
 of an estate upon a failure of issue, as these sta- 
 tutes require that such words shall be held to mean a 
 failure of issue in the lifetime or at the death of the ancestor 
 named. Hence, where a remainder in lands is limited to take 
 effect on the death of any person "without heirs" or "with- 
 out issue" since such words, under the statutes named, are 
 held to mean heirs or issue living at the death of the person 
 named, the ground work upon which a fee-tail was implied, 
 in such a grant or devise, is swept away and no estate tail, 
 by implication, can be created from the use of such words. 13 
 
 41. Classes of estates tail. If the estate be limited gener- 
 ally to the heirs of one's body, it is called an estate tail gen- 
 rnil. If it be limited to particular heirs of the body, as to 
 the heirs of one's body upon the body of a certain named wife 
 I '"'jot ten, only the issue of that particular wife can take, and 
 ii is called an estate tail special. The issue of any other 
 
 "Yocrnn r. Siler, 160 Mo. loo. cit. 296. 
 
 12 Den r. Snitcher, 14 N. J. L. 53; Yociim r. Silor, supra; Barber 
 r. Pittsburg, etc. Ry. Co., 166 U. S. 83, 41 L. Ed. !>2.1. 
 
 13 1 Jarman on Wills, 521 and cases cited; Roscluxmi r. Koschoom. 81 
 X. V. 350; Clark t. Leupp, 88 N. Y. 228; Yociim r. Sil.-r, HiO Mo. 
 p. 207; Middlesex Banking Co. v. Field (Miss. 1904), 37 So. Rep. I3<). 
 
 4 49
 
 42 ESTATES TAIL. [PART I. 
 
 wife cannot take. 14 The special tail, in order to be good, 
 must be so limited as not to be unlawful. 15 But it does not 
 matter how improbable the marriage is, or that they would 
 have issue if married, the limitation will nevertheless be 
 good. Such would be the case even though the man and 
 woman are both married at the time to different parties; or 
 they are so old that according to the ordinary laws of nature, 
 they are incapable of procreating children. The law will 
 consider it still possible for them to have issue, as long as 
 they both live. 10 Another form of estate tail special is that 
 to their heirs, male or female, of one's body. In this case 
 the inheritance is confined to the male or female heirs to the 
 exclusion of the others. And each taker must trace his de- 
 scent through an unbroken line of that class of heirs. Thus 
 if the limitation be to the heirs male of one's body, the grand- 
 son by a daughter could not take, nor if it be to heirs female, 
 could the granddaughter by a son inherit. Very often the 
 limitation is to the heirs male of the body, then to the heirs 
 female, exhausting the first class of heirs, before the re- 
 mainder to the latter takes effect. In such a conveyance, 
 neither the grandson by the daughter, nor the granddaughter 
 by the son, could inherit the estate, and it would revert for 
 failure of issue, 17 if there were no technical heirs, male or 
 female. 
 
 42. How estates tail may be barred. The statute de donis 
 made the ordinary modes of conveyance incapable of barring 
 entails, but in the course of time, the restraint upon alienation 
 
 2 Bla. Com. 113, 114; 2 Prest. Est. 413, 414; 1 Washburn on Real 
 Prop. 102, 103. 
 
 J^Thus, if the limitation is to the issue of the grantee begotten upon 
 a woman, who is so near a relative as to render the marriage unlawful, 
 the limitation in tail would be void, and the donee would take only a 
 life estate. 1 Washburn on Real Prop. 103. 
 
 > 2 Prest. Est. 395 ; 1 Washburn on Real Prop. 103. 
 
 "2 Bla. Com. 114; 2 Prest. Est. 402, 403; 1 Washburn on Real Prop. 
 103, 104; Williams on Real Prop. 35; Hulburt V. Emerson, 16 Mass 241. 
 50
 
 CH. V.] ESTATES TAIL. 42 
 
 effected by this statute became so burdensome, practically ex- 
 cluding lands from the market as objects of barter or sale, 
 that the courts at last by a fictitious contrivance, aided by 
 remedial statutes, secured a means of alienation. It was in 
 the nature of a fictitious suit, by which some persons laid 
 claim to the land, and the tenant in tail either acknowledged 
 the justice of his claim, or allowed judgment by default to be 
 entered up against him. There were two modes in use, viz. : 
 fines, and common recoveries. They do not now exist, and 
 have at no time existed in more than two or three of the 
 States of this country. The subject therefore deserves no 
 further consideration. 18 Since then, in England, it has not 
 
 ! The common recovery was the most common and the most effectual 
 mode of barring the entail : " This was a fictitious suit brought in the 
 name of the person who was to purchase the estate, against the tenant 
 in tail who was willing to convey. The tenant, instead of resisting this 
 claim himself, under the pretense that he had acquired his title of 
 some third person, who had warranted it, vouched in, or by a process 
 from the court called this third person, technically the vouchee, to come 
 in and defend the title. The vouchee came in, as a part of the dramatis 
 personce of his judicial farce, and then, without saying a word, dis- 
 appeared and was defaulted. It was a principle of the fuedal law,, 
 adopted thence by the common law, that if a man conveyed lands with; 
 a warranty, and the grantee lost his estate by eviction by one having a 
 better title, he should give his warrantee lands of equal value by way of 
 recompense. And as it would be too barefaced to cut off the rights of 
 the reversion as well as of the issue in tail by a judgment between the 
 tenant and a stranger, it was gravely adjudged, (1) that the claimant 
 should have the land as having the better title to it, and (2) that the 
 tenant should have judgment against his vouchee to recover lands of 
 equal value on the ground that he was warrantor, and th,.s, theoretic- 
 ally, nobody was harmed. If the issue in tail, reversioner or remainder- 
 man, lost that specific estate, he was to have one of equal value through 
 this judgment in favor of the tenant in tail; whereas, in fact, the 
 vouchee was an irresponsible man, and it was never expected that he 
 was anything more than a dummy in the game." 1 Washburn on Real 
 Prop. 97, 98. Taltanim's Case, Year Book, 12 Edw. IV 19 is the lead-* 
 in<: cuse on the subject; 2 Bla. Com. 116; Williams on Real Prop. 45-48; 
 Tiivlur r. Horde, 1 Burr. 84; Page v. Hayward, 2 Salk. 570. See the 
 following American cases, in which fines and common recoveries are dis- 
 cussed and recognized, but declared to be abolished. McGregor v. Com- 
 
 51
 
 44 ESTATES TAIL. [PAI.T !. 
 
 l>een possible to keep the estate entailed for any great length 
 of time, at the most only during the minority of the tenants. 
 As soon as the tenant became of age, he was able to bar it. 
 This gave rise to what are known as marriage settlements, in 
 which the lands were settled on the husband and wife for life, 
 remainder to the first and other sons in tail, etc. In such a 
 case the estate tail in remainder would be locked up until the 
 eldest son has reached his majority. 10 
 
 43. Merger of an estate tail. It is a general rule, which 
 will receive constant illustration in the following pages, that 
 where a less and a greater estate unite in one person, the 
 former is merged and lost in the latter. But this is not al- 
 ways the case. A man may have an estate tail and the rever- 
 sion in fee upon failure of issue, but the estate tail will re- 
 main intact, and cannot be barred except in the mode here 
 indicated. 20 
 
 44. Estate-tail after possibility of issue extinct. When 
 the legal possibility of issue has ceased, it leaves to the tenant 
 in tail a life estate of a peculiar character, which is denomi- 
 nated an estate tail after possibility of issue extinct. He is 
 not liable to an action for waste by the reversioner, although 
 
 stock, 17 N. Y. 162; Croxhall v. Sherard, 5 Wall. 268. In Pennsylvania 
 they apparently exist still. Richman v. Lippincott, 29 N. J. L. 44; 
 Lyle r. Richards, 7 S. & R. 322; Dewitt v. Eldred, 4 Watts & S. 421; 
 Taylor r. Taylor, 63 Pa. St. 485. They never existed in Missouri. 
 Moreau r. Detchemendy, 18 Mo. 527. An estate tail by statute in 
 Massachusetts, is barred by a deed in common form. Gilkie v. Marsh 
 (1904), 186 Mass. 336, 71 N. E. Rep. 703. 
 
 ' Williams on Real Prop. 50, 51; 1 Washburn on Real Prop. 90. 
 
 soWiscot's Case, 2 Rep. 61; Roe v. Baldwere, 5 T. R. 110; Poole v. 
 Morris, 29 Ga. 374; Altham's Case, 8 Rep. 154 b; Corbin V. Healy, 20 
 Pick. 515. In determining questions of merger, the principle by which 
 the court is guided is the intention of the parties; in the absence of the 
 expression, either documentary or verbal, of any intention, the court 
 looks to the benefit of the person- in whom the two estates are vested. 
 Ingle v. Vaughan Jenkins (Eng. 1900), 09 Law J. Ch. 618, 83 Law T. 
 (N. S.), 155; Cole t?. Beale, 89 111. App. 426. ' 
 
 52
 
 CH. V.] ESTATES TAIL. " 45 
 
 4 
 
 he may be restrained by an equitable injunction from the 
 commission of willful and malicious waste. It is apparent 
 that this can only happen in the case of an estate tail special. 
 If the limitation be to the heirs of one's body generally, there 
 is a legal possibility of issue, as long as the tenant is living.- 1 
 
 45. Estates tail in the United States. In the early colo- 
 nial period, estates tail prevailed in this country very gen- 
 erally, and they could, in some of the States, be barred by 
 fines and recoveries. 22 But at the present time they have 
 been abolished in most of the States. In some they are 
 changed into fees simple, while in others they are divided 
 into a life estate and remainder to issue, or easy modes 
 of converting them into fees simple are provided. 23 
 
 21 1 Washburn on Real Prop. 110, 111; Williams on Real Prop. 54,55; 
 2 Sharwood's Bla. Com. 125 ; Soe v. Audley, 1 Cox, 324 ; List v. Rodney, 
 2 Norris, 483; Co. Lit. 27 b, 28 a. In Tennessee, it is held that a re- 
 mainder to the children of a woman is not extinguished until her death, 
 although she may be very old and childless, as the law does not assume 
 that there is an impossibility of issue at any age, however great. Big- 
 ley t\ Watson, 98 Tenn. 353, 39 S. W. Rep. 525, 38 L. R. A. 679. As the 
 grantee of a tenant in tail would take nothing but the life estate of 
 such tenant, under the Missouri statute, it would be immaterial, as to 
 such grantee, whether the living female grantor has reached such ago 
 that the possibility of having further heirs of her body is extinct or not, 
 or whether her heirs are contingent or vested remaindermen. Utter 
 r. Sidman, 170 Mo. 285, 70 S. W. Rep. 702. But see, Jackson v. 
 Everett (Tenn.), 58 S. W. Rep. 340. 
 
 22Hawley V. Northampton, 8 Mass. "4; Perry V. Kline, 12 Cush. 120; 
 Corbin r. Healey, 20 Pick. 515; Jewell V. Warner, 35 N. H. 170; Den- 
 nett v. Dennett, 40 N. H. 500; Jackson V. Van Zandt, 12 Johns. 149; 
 Croxhall v. Sherard, 5 Wall. 283; Dewitt V. Eldred, 4 Watts & S. 421; 
 4 Kent's Com. 14; Walker Am. Law. 299; 1 Washburn on Real Prop. 
 111. 
 
 23 In Alabama, California, Connecticut, Florida, Georgia, Kentucky, 
 Maryland, Michigan, Minnesota, Mississippi, North Carolina, Tennessee, 
 Texas, Wisconsin, Virginia, and West Virginia, estates tail are converted 
 into fees simple. Wheatley v. Barker, 79 Ga. 790, 4 S. E. Rep. 387, 
 note; Ewing r. Shropshire, 80 Ga. 374; East 0. Garfett, 84 Va. 523; 
 Smith v. Greer, 88 Ala. 414; Bait. & O. R. R. Co. r. Patterson, 08 M<1. 
 006; Leather v. Gray (N. C.), 7 S. E. Rep. 657; Bingham t;. Weller 
 
 53
 
 5 45- ESTATES TAIL. [PART I. 
 
 (Tonn. 1904), 81 S. W. Rep. 843; Viely v. Frankfort, etc., Co., 51 S. W. 
 Hep. 173; Hertz r. Abrahams, 110 Ga. 707, 50 L. R. A. 361, 36 S. E. Rep. 
 409. In Maryland, only estates tail general are converted into fees 
 simple. An estate tail, male or female, remains unaffected by the stat- 
 ute. Pennington r. Pennington, 70 Md. 118. In Arkansas, Illinois, 
 Kansas, Missouri, New Jersey, and Vermont, the tenant in tail takes 
 a life estate and the heirs of his body the remainder in fee per formam 
 doni. Lehndorf r. Cope (111.), 13 N. E. Rep. 505; Horsley V. Hilburn, 
 44 Ark. 458; Weart v. Cruser, 49 N. J. L. 75; Wood v. Kice (Mo.), 
 15 S. W. Rep. 623; Lewis V. Earnhardt, 43 Fed. Rep. 854; Black v. 
 Webb (Ark. 1904), 80 S. W. Rep. 367; Utter v. Sidman, 170 Mo. 284, 
 70 S. W. Rep. 702. Under the Illinois statute, where the grantee of 
 a fee tail refuses to take, he does not become " seised in fee tail," so 
 that the land, or any part of it would vest in fee, in his heirs. Spencer 
 r. Spruel, 196 111. 119, 63 N. E. Rep. 621. In Indiana (Allen v. Craft, 
 109 Ind. 476) and New York, the tenant takes a fee simple, if there is 
 no limitation in remainder, after the estate tail and a life estate, when 
 there is such a limitation. And while in Delaware, Maine, Massa- 
 chusetts, Pennsylvania and Rhode Island, estates tail are not expressly 
 abolished, and presumably if not aliened they would descend to the 
 special heirs, and revert to the grantor upon failure of such heirs, it is 
 now provided by statute in those States that a conveyance in common 
 form will pass a fee simple estate, and bar the entail. Titzell v. Coch- 
 ran (Pa.), 10 Atl. Rep. 9; Coombs v. Anderson, 138 Mass. 376; 
 Lawrence v. Lawrence, 105 Pa. St. 335; Rowland v. Warren, 10 Oreg. 
 129; Pierson v. Lane, 60 Iowa, 60; 1 Washburn on Real Prop. 112, note; 
 Williams on Real Prop. 35, Rawle's note; Gilkie V. Marsh (1904), 186 
 Mass. 336, 71 N. E. Rep. 703; Simpson v. Reed, 205 Pa. St. 53, 54 Atl. 
 Rep. 53; Stauch v. Ziegler, 196 Pa. St. 489, 46 Atl. Rep. 486; Stone v. 
 Bradlee (Mass. 1903), 66 N. E. Rep. 708. In South Carolina, the 
 statute de donis has never been recognized as a part of the common law, 
 and fees conditional still exist there. 3 S. C. Stats, at Large, 341 ; 
 Archer v. Ellison, 28 S. C. 238; Powers V. Bullwinkle, 33 S. C. 293. See, 
 also, Keith v. Scoles (N. C.) 32 S. E. Rep. 809; Holman v. Wesner 
 (1903), 67 S. C. 307, 45 S. E. Rep. 206; Mattison v. Mattlson, 65 S. C. 
 345, 43 S. E. Rep. 874; Methodist Church v. Young, 130 N. C. 8, 40 S. E. 
 Rep. 691. 
 
 54
 
 CHAPTER VI. 
 
 ESTATES FOB LIFE. 
 
 SECTION 46. Definition and classes of life estates. 
 
 47. Peculiarities of an estate per auter vie. 
 
 48. Words of limitation in estates for life. 
 
 49. Estates tail, converted into life estates by statute 
 
 50. The merger of life estate in a greater. 
 
 51. Alienation by tenant for life. 
 
 52. Power given life tenant to convey the fee. 
 
 53. Tenure between tenant for life and reversioner. 
 
 54. Apportionment between life tenant and reversioner, of in- 
 
 cumbrances. 
 
 55. Snme Of rent. 
 
 56. Claim for improvements. 
 
 57. Estovers. 
 
 58. Emblements What they are. 
 
 59. Same Who may claim them. 
 
 60. Definition and history of waste. 
 
 61. What acts constitute waste General rule. 
 
 62. W T aste In respect to trees. 
 
 63. Property in timber unlawfully cut. 
 
 64. Continued In respect to minerals and other deposits. 
 
 65. Continued Management and culture of land. 
 
 66. Continued In respect to buildings. 
 
 67. Exemption from liability. 
 
 68. Remedies for waste. 
 
 46. Definition and classes of life estates. An estate for 
 life is strictly one whose duration is limited by the life or 
 lives of certain persons; it may be the life of the tenant, 
 the life of another, or the joint lives of the tenant and 
 others. But the term has been generally extended so as to 
 include all freeholds not of inheritance. 1 It will, therefore, 
 
 * The life estates above referred to are frequently termed " conven- 
 
 55
 
 46 LIFE ESTATES. [PART I. 
 
 embrace an estate for an uncertain period, which may con- 
 tinue during a life or lives. Such would be a grant to a 
 woman during widowhood. If she marries, her estate would 
 terminate; but it may endure as long as she lives. 2 And 
 it is of no consequence how uncertain the duration of the 
 estate may be, or how likley it will terminate in a given 
 number of years; if it can, and may, continue during a 
 life, it is considered a freehold estate for life. Such is a 
 grant to one, until he can, out of the rents and profits, pay 
 the debts of the grantor. But if the conveyance be a devise 
 to executors, until the devisor's debts are paid, they would 
 take only a chattel interest. 3 An estate for one's own life 
 is considered by the law to be the highest and best estate 
 for life that one can have. Consequently the courts, in con- 
 struing a doubtful grant for life, would hold it to be for the 
 life of the tenant, rather than for the life of the grantor. 4 
 An estate for the life of another is called in the Norman- 
 French, an estate per outer vie, and the one whose life limits 
 its duration is called the cestui que vie. 6 In the present 
 chapter we shall speak only of estates for life in general 
 and of those incidents which pertain to the estates for life, 
 which are created by the act of the parties, or in other words, 
 of conventional life estates. There are other classes of life 
 estates, which come into being by operation of law, as in the 
 case of dower and curtesy; these will be treated in a sepa- 
 rate chapter. 6 
 
 tional " life estates, to distinguish them from life estates created by 
 operation of law. 4 Kent's Com. 25, where such estates are treated as 
 " estates for life by agreement." Tiffany, Real Prop. 30. 
 
 2 Co. Lit. 42 a; Hurd v. Cushing, 7 Pick. 179; Jackson v. Myers, 3 
 Johns. 388; Roseboom V. Van Vechten, 5 Dcnio 414; Hatfield v. Sneden. 
 54 N. Y. 285; Clark v. Owens, 18 N. Y. 434; Hewlins r. Shippam, f> 
 B. & C. 221, 2 Bla. Com. 121; McArthur v. Scott, 113 U. S. 340, 28 L. 
 Ed. 1015; Holt V. Lamb, 17 Ohio St. 374; Hayward V. Kinney, 84 Mich 
 591. 
 
 s Co. Lit. 42 a; 1 Wash burn on Real Prop. 11(5. 
 
 < Co. Lit. 42 a; 2 Bla. Com. 121; 1 Washburn on Real Prop. 115. 
 
 "Co. Lit. 41 b; 2 Bla. Com. 120. 
 See post, ch. VII, Sees. 69, 127. 
 56
 
 CH. VI.] LIFE ESTATES 47 
 
 47. Peculiarities of an estate per auter vie. An estate 
 for the life of another, as, for example, an estate for the 
 life of the grantor, is a freehold, but is not an estate of in- 
 heritance. Perhaps during the earlier existence of the feudal 
 system, it was not considered as strictly a freehold interest ; 
 but it is now, and has long been, included in that class of 
 estates. The estate terminates with the death of the cestui 
 que vie, and does not expire with the death of the tenant. 
 If, therefore, the tenant dies during the life of the cestui que 
 vie, the estate continues and must vest in some one. If he 
 has conveyed it away, his grantee will hold it, unaffected by 
 his death. But if he dies in possession, a question of some 
 difficulty arises. At common law, it could not descend to 
 his heirs, for the law of descent applies only to estates of in- 
 heritance; and this is not such an estate. It could not de- 
 scend to the executor or administrator, for they could take 
 only chattel interests, and this was a freehold. It was also 
 not devisable, for it was a freehold interest. At common law 
 it was permitted for any one who first took possession to 
 hold it, and he was called the general occupant. 7 This right 
 of general occupancy could only be exercised where there 
 were no persons designated in the grant who could take as 
 special occupants. If the grant was to A. and his heirs dur- 
 ing the life of B., the heirs would take as special occupants, 
 to the exclusion of the general occupant. 8 But these special 
 occupants had not the interest of purchasers during the life 
 of the tenant. They only took what was left undisposed of, 
 
 7 Co. Lit. 41 b ; 2 Bla. Com. 259. 
 
 82 Bla. Com. 259, 260; Atkinson v. Baker, 4 T. R. 229. A tenant 
 at will of the tenant per outer vie, in possession at the death of the 
 latter, will, as against the general occupant, have a superior claim as 
 one species of special occupant, though he would have to yield posses- 
 sion to the special occupant, who was also heir of the tenant. Co. Lit. 
 Mli. note 2.T2. And in like manner, the executor or administrator 
 might have taken the estate as special occupant, if the grant had been 
 to the tenant and his executors and administrators, instead of to him 
 and his heirs. See authorities, supra. 
 
 57
 
 48 LIFE ESTATES. [PART I. 
 
 and could not prevent its alienation by the tenant. On the 
 other hand, the tenant could not bar them by a devise of the 
 estate.' This peculiarity of the common law has since been 
 done away with by statute in England, 10 and in almost every 
 State in this country. In some, estates per auter vie are 
 made to descend to heirs in common with other real estate; 
 while in others it is treated as a chattel interest, and con- 
 stitutes assets in the hands of the personal representatives. 11 
 
 48. Words of limitation in estates for life. There are no 
 words of limitation required at common law. A grant of 
 an estate was construed to be for the life of the grantee, 
 where there was no express limitation. 12 But in those States 
 where now by statute all grants and devises are made to con- 
 vey a fee simple estate, unless a less estate is expressly 
 limited, it would be necessary to limit the estate for the life 
 of the grantee in express words. 13 And in devises, a life 
 estate is often raised by implication. Thus where A. de- 
 vised his lands to his heirs after the death of B., it was 
 held that B. took an estate for life by necessary implication, 
 since no one coilld take the estate except the heir, and he 
 was postponed by the will until B.'s death. But if the de- 
 vise had been to a stranger after the death of B., the heirs 
 
 Doe v. Robinson, 8 B. & C. 296; Doe v. Luxton, 6 T. R. 289; Allen 
 V. Allen, 2 Dru. & War. 307; 1 Washburn on Real Prop. 121. 
 
 10 1 Viet. c. 26; 14 Geo. II c. 20; 4 Davy's Case, 38, 56. 
 
 n In Missouri, Arkansas, Rhode Island, North Carolina, Massa- 
 chusetts and some others, it is real estate ; while in New York, New Jer- 
 sey, Pennsylvania, Indiana, Kentucky, Minnesota, Maryland, Michigan, 
 Wisconsin, Texas, it is personal property. In all the States it can now 
 be disposed of by will. In Maryland, the right of special occupancy is 
 still recognized, so that if the estate per auter vie is expressly limited 
 to the heirs, the heirs will take as special occupants. In the other 
 States, the limitation does not give them a superior title, if the statute 
 makes the estate personal property. See 1 Washburn on Real Prop. 121; 
 Williams on Real Prop. 21, Rawle's note. 
 
 "Co. Lit. 42 a; 5 Bla. Com. 121; Truesdell v. Lehman, 47 N. J. Eq. 
 218 ; Dorney's Estate, 136 Pa. St. 142. 
 
 See ante, Sec. 30. 
 58
 
 Cn. VI.] LIFE ESTATES. 4i) 
 
 would have taken by descent during the life of B. instead 
 of the latter. 14 
 
 49. Estates tail, converted into life estates by statute. 
 In many of the United States, a grant or devise of an es- 
 tate to the grantee or devisee and to the "heirs of his body," 
 or to his "issue," or to his "children," which, at common 
 law. would be held to create an estate in tail, is by statute, 
 converted into an estate for life in the first taker, with re- 
 mainder over, on his death, to his heirs. 15 A life estate is 
 held, by operation of law, to result from any grant or de- 
 vise, that at common law, would be held to create an estate 
 tail, and in some jurisdictions, even though the premises in 
 a deed attempt to convey an absolute estate in fee, if a 
 limitation appears in the habendum, evincing an intention to 
 limit the estate granted or devised to the first taker and to 
 his "heirs" or "issue" the conveyance is held to create only 
 a life estate in the first taker, with remainder over to his 
 heirs. 16 "If the limitation in one part of a conveyance is to 
 A. and his heirs generally, and in the other part the estate 
 is limited to A. and to the "heirs of his body," the two 
 descriptions of the estate are not, necessarily contradictory, 
 and the specific limitation will prevail over the general 
 limitation. 17 In such case, the estate granted will be an es- 
 tate tail, which, by operation of law, in jurisdictions where 
 such statutes are in force, would convey only a life estate 
 in the grantee, with remainder to his heirs. 18 
 
 n 1 Washburn on Real Prop. 116, 117. 
 
 i Wagner's Stat. Mo. 1872, page 1351 ; R. S. 1899, Sees. 4592, 4594. 
 Statutes to this effect exist in Arkansas, Illinois, Kansas, Missouri, 
 New Jersey and Vermont, ante, Sec. 45. 
 
 i Clarkson v. Clarkson, 125 Mo. 381; Clarkson v. Hatton, 143 Mo. 
 47; McGinnis v. McGinnis (Ky.), 29 S. W. Rep. 333; Wilmers v. Robin- 
 son (Ark.), 55 S. W. Rep. 950; Hunt v. Searcy (Mo.), 67 S. W. Rep. 
 206; Utter v. Sidman, 170 Mo. 284; Davidson v. Manson, 146 Mo. 608; 
 Walton v. Drumtra, 152 Mo. 489. 
 
 " Hunter v. Patterson, 142 Mo. 310. 
 
 is Hunter v. Patterson, supra. 
 
 59
 
 51 LIFE ESTATES. [PART I. 
 
 50. The merger of life estate in a greater. If a life es- 
 tate is conveyed to one having a reversion or any other 
 greater estate, or the tenant acquires the reversion, the life 
 estate is merged in the latter. 19 So would an estate for the 
 life of another merge in an estate for one's own life. 20 But 
 if the tenant for life conveys to the reversioner an estate for 
 the life of the latter, a possible reversionary interest being 
 left in the tenant, there will be no merger, and the tenant 
 would take the estate again, if the reversioner should die 
 during his life-time. 21 The two estates must also be of the 
 same character. A legal life estate will not merge into an 
 equitable estate in remainder. 22 
 
 51. Alienation by tenant for life. Unless there is a con- 
 dition in restraint of alienation, 23 the tenant for life may 
 convey his estate as freely as the tenant in fee. He may 
 alien his entire interest, which would become., in his grantee, 
 an estate per auter vie. Or he may grant any smaller es- 
 tate, and may carve up his estate into any number of smaller 
 estates, as long as they do not together exceed his life 
 estate. 24 If the life tenant attempted to convey, by a corn- 
 is 2 Bla. Com. 177; Co. Lit. 41 b; Mudd v. Mullican (Ky.), 12 S. W. 
 Rep. 263. 
 
 -o 1 Washburn on Real Prop. 117; 1 Spence Eq. Jur. 144; Williams 
 on Real Prop. 22 ; Boykin v. Ancrum, 28 S. C. 486, 6 S. E. Rep. 305, 13 
 Amer. St. Rep. 698. 
 
 21 1 Wasbburn on Real Prop. 117, 118; Co. Lit. 42, 218 b. 
 
 22 Da vis v, Townsend (S. C.), 10 S. E. Rep. 837. Where life tenants. 
 in a legal life estate, under a will, are entitled to vested remainders in 
 such property,, the two estates coalesce and such tenants take the fee. 
 ftraham v. Whitridge (Md. 1904), 57 Atl. Rep. 609, 58 id. 36. See 
 Hollenberger v. Youkee, 145 Pa. St. 179, 22 Atl. Rep. 821; Sheldon v. 
 Hallock, 62 Conn. 143, 25 Atl. Rep. 483 ; Turk v. Skiles, 45 W. Va. 82, 
 30 S. E. Rep. 234. But see, Re Radcliff (C. A.), 1 ch. 227. 
 
 zsHayward v. Kinney, 84 Mich. 591; Criswell v. Grumbling, 107 Pa. 
 St. 408. 
 
 2 1 Cruise Dig. 10ft : Stewart v. Clark, 13 Mete. 79; Jackson v. Van 
 Hoesen, 4 Cow. 325; Williams on Real Prop. 26; Lehndorf v. Cope 
 (111.), 13 N. E. Rep. 505. 
 60
 
 CH. VI.] LIFE ESTATES. 52 
 
 mon-law feoffment, a greater estate than he had, it worked 
 a forfeiture of his estate, his grantee received nothing, and 
 the estate in remainder or in reversion vested in possession. 
 This rule follows as a consequence from the feudal notion 
 that the wrongful feoffment of the life tenant was a renun- 
 ciation of the feudal tenure between him and the lord, an 
 act of disseisin, which divested the remainder-man or re- 
 versioner, of his seisin by its livery to the grantee. 25 And 
 this rule applies to this day, wherever it has not been changed 
 by statute. But if he attempts the conveyance of a greater 
 estate by any other mode of conveyance, such as a grant, 
 lease, and release, or bargain and sale, which operate under 
 special statutes or under the Statutes of Uses, it will only 
 have the effect of conveying what interest he has, and no 
 forfeiture results therefrom. 26 These deeds do not operate 
 by transmutation of possession, and therefore do not divest 
 the tenant in remainder or reversion of his seisin. The na- 
 ture and effect of these various deeds will be more par- 
 ticularly considered in subsequent pages. 27 
 
 52. Power given life tenant to convey the fee. The ques- 
 tion is decided differently in different jurisdictions as to the 
 right of a life tenant to convey the fee, where a general 
 power of sale is given to such tenant by the testator. In 
 the absence of a limitation over, the courts very generally 
 hold that such a power, on the part of a tenant for life, 
 will enable him to convey the fee, as this would, manifestly, 
 carry out the intent of the testator or donor, 28 but where 
 
 232 Bla. Com. 274, 275; 1 Cruise Dig. 108; 1 Washburn on Real 
 Prop. 1 18, 1 19 ; Jackson v. Mancius, 2 Wend. 365 ; Stump v. Findlay, 2 
 Rawle, 168; Matthews v. Ward's Lessee, 10 Gill & J. 449; Redfern v. 
 Middleton, 1 Rice 459; Faber v. Police, 10 S. C. 376. See post, Sees. 
 317. 536. 
 
 - 1 Washburn on Real Prop. 119. See post, Sec. 317. 
 
 " See post, Sees. 540, 549. 
 
 2S In riimniings r. Shaw (108 Mass. 159), the court say: "If a 
 <|ii<--tion had arisen as to the validity of a devise over, it might be 
 
 61
 
 53 LIFE ESTATES. [PART I. 
 
 there is a devise over, after the life estate, the decisions are 
 not in complete harmony as to the construction of such a 
 power. The federal supreme court, basing its holding upon 
 a leading early case, 29 uniformly holds that such a power 
 does not have the effect of enabling the life tenant to con- 
 vey the fee, as this would have the effect of enlarging the 
 life estate into a fee, where a contrary intent is evidenced 
 by the creation of the life estate. 30 But many of the courts 
 of the different States construe such a power, upon the part 
 of the tenant for life, as an authority upon his part to con- 
 vey an estate in fee, even though there may be a limitation 
 over, after the termination of the life estate, upon the theory 
 that a power of alienation of the life estate was an incident 
 to such estate, without express grant thereof, and to restrict 
 the right of sale to the life estate would not effectuate the in- 
 tention of the testator, who would not be presumed to have 
 intended the idle ceremony of granting a power already en- 
 joyed. 81 
 
 53. Tenure between tenant for life and reversioner. The 
 relation of tenure so far exists between the life tenant and 
 his reversioner, as that the possession of the former is never 
 deemed to be adverse to the latter. That is, during the ex- 
 important to determine whether the plaintiff took an estate for life, or 
 in fee, but it cannot be so in this case." 
 
 20 Smith v. Bell, 6 Pet. 68; 8 L. Ed. 322. The authority of this 
 case is somewhat impaired by the fact that counsel for the grantee of the 
 power did not appear in the supreme court. Gifford v. Choate, 100 
 Mass. 340. 
 
 so Brant r. Coal Co., 93 U. S. 326, 23 L. Ed. 927 ; Giles v. Little, 104 
 U. S. 291, 26 L. Ed. 745. 
 
 3i Parks r. Robinson (X. C.), 50 S. E. Rep. 649; Troy r. Troy. 60 
 X. C. 623; Wright r. Westbrook, 121 X. C. 156, 28 S. E. Rep. 290; 
 White r. White, 21 Vt. 250; Underwood r. Cave (Mo.), 75 S. W. Rpp. 
 455. 60 Cent. Law Jour. 441. It is held, in Tennessee, that where the 
 life tenant sells the entire estate and sets aside a portion of the pro- 
 ceeds for the remainderman, the latter may ratify the sale and re- 
 cover the portion so set aside from the life tenant's administrator. 
 RussrM r. State Xat. Bank, 104 Tenn. 614, 58 S. W. Rep. 245. 
 L2
 
 CH. VI.] LIFE ESTATES. 53 
 
 istence of the life estate he cannot disseise his reversioner by 
 any adverse claim of title. Nor will the disseisin of the life 
 tenant by a stranger affect the rights of the reversioner dur- 
 ing the life of the former. He may recover possession of 
 the disseisor at any time after the death of the life tenant 
 within the statutory period of limitation. The statute only 
 runs from the death of the tenant. 32 And where the life 
 tenant has granted the fee, his grantee becomes a trespasser 
 from his death, and may be ousted by the reversioner, it 
 matters not how long he may have been in possession during 
 the life of the tenant for life. 33 But the common-law real 
 actions, when brought against the life tenant for recovery of 
 the land under a claim of title adverse to both reversioner 
 and life tenant, barred the claims of the reversioner as well 
 as the life tenant, even though the former was not made a 
 party to the suit. These real actions could only be brought 
 against the tenant in possession, who was called the tenant of 
 the praecipe. The life tenant was, therefore, under obliga- 
 tion to the reversioner to defend the title in such actions; 
 but he could relieve himself of the duty by calling in the 
 reversioner to assist in the defense. This was called "pray- 
 ing in aid." He could, however, defend without calling in 
 
 szVarney v. Stephens, 22 Me. 334; Austin v. Stevens, 24 Me. 526; 
 Foster v. Marshall, 22 N. H. 491; Jackson v. Schoonmaker, 4 Johns. 
 390; McCorry v. King's heirs, 3 Humph. 367; Archer v. Jones, 26 Miss. 
 583; Kirksey t?. Cole, 47 Ark? 504; Parker v. Osnum (Mich. 1904), 
 97 N. W. Rep. 756; Chicago, P. & St. L. Ry. Co. v. Vaughan, 206 
 111. 234, 69 N. E. Rep. 113. No adverse possession by a grantee can be 
 predicated during the life of the life tenant. Hauser V. Craft, 134 N. C. 
 319, 46 S. E. Rep. 756; Beatty v. Clymer (Tex. 1903), 75 S. W. Rep. 
 540; Hamilton V. Wickson (Mich. 1902), 90 N. W. Rep. 1032; Hall 
 v. French, 165 Mo. 430, 65 S. W. Rep. 769; Cook v. Collier (Tenn. 
 1901), 62 S. W. Rep. 658. Where land was devised to two for life, 
 with remainder to the heirs of one, the possession of a grantee of all 
 but one of such remaindermen held not adverse as to him until the 
 death of both life tenants. Bullin v. Hancock (N. Car.), 50 S. E. Rep. 
 621. 
 
 83 Williams V. Caston, 1 Strobh. 130. See Moore v. Luce, 29 Pa. St. 
 263. 
 
 63
 
 54 LIFE ESTATES. [PART I. 
 
 such assistance, and the judgment would be equally con- 
 clusive against the reversioner. 34 These actions have now 
 been abolished in England and in this country, and since 
 the principle did not prevail in any other forms of actions, 
 a judgment for recovery of land only affects the parties to 
 the suit. 33 
 
 54. Apportionment, between life tenant and reversioner of 
 incumbrances. The life tenant is bound to pay all the accru- 
 ing interest on existing incumbrances upon the estate; but 
 he is not compelled, as against the reversioner, to pay off the 
 principal of the debt. The payment of the principal falls 
 upon the reversioner. 88 If the life tenant pays off the en- 
 tire debt, he becomes a creditor of the reversioner for the 
 share of the latter, and vice versa. The payment is, in such 
 a case, apportioned between them. The tenant would have 
 
 s* 1 Prest. Est. 207, 208 ; 1 Washburn on Real Prop. 73, 74, 122. 
 
 33 1 Spence Eq. Jur. 225; 1 Washburn on Real Prop. 122, 123. 
 
 so 1 Story Eq., Sec. 486 ; 4 Kent's Com. 76 ; Kensington v. Bouverie, 
 31 Eng. Law & Eq. 345; Mosely v. Marshall, 25 Barb. 42; Doane V. 
 Doane, 46 Vt. 496; Warley v.> Warley, 1 Bailey Eq. 397. But this is 
 not a personal claim against the life tenant, which the incumbrancer 
 can enforce. He is only obliged to pay the interest, if he desires to save 
 the estate from forfeiture. Morley V. Sanders, L. R. 8 Eq. 594; Ken- 
 sington v. Bouverie, supra; Doane v. Doane, supra; Plympton v. Bos- 
 ton Dispens., 106 Mass. 544; Downing v. Hartshorn (Neb. 1903), 95 
 N. W. Rep. 801; Tyndall v. Peterson, 99 N. W. Rep. 659; Parrish v. 
 Ross (Ky.), 44 S. W. Rep. 134; Bowen v. Brogau, 119 Mich. 218, 77 
 N. W. Rep. 942. It is different in respect to the liability of the tenant 
 for life for accruing taxes. These he is obliged to pay; if he does not, 
 and purchases the tax title given for default of taxes, he cannot set 
 it up in opposition to the reversioner. Cairns v. Chabert, 3 Edw. Ch. 
 312; Fleet r. Dorlond, 11 How. Pr. 489; Patrick v. Sherwood, 4 Blatchf. 
 \12 ; Crawford V. Meis (Iowa 1904), 123 Iowa 610, 99 N. W. Rep. 186, 
 60 L. R. A. 154; Pruitt u. Holly, 73 Ala. 369; Varney v. Stevens, 22 
 Me. 331; Defreese v. Lake, 109 Mich. 415, 67 N. W. Rep. 505, 63 
 Amer. St. Rep. 584, 32 L. R. A. 744; Stewart v. Matheny, 60 Miss. 21, 
 5 So. Rep. 387, 14 Amer. St. Rep. 538; Trimmer v. Dorden, 61 S. C. 
 220, 39 S. E. Rep. 373; Hall v. French, 165 Mo. 430, 65 S. W. Rep. 769; 
 .Toffers v. Sydnam (Mich. 1902), 89 N. W. Rep. 42. 
 64
 
 OIL VI.] LIFE ESTATES. 54 
 
 to pay such a sum, as would equal the present value of the 
 amount of interest he would probably have paid during his 
 life, if the mortgage had continued so long in existence, esti- 
 mating his probable length of life by the ordinary tables of 
 mortality. The balance, after deducting this sum, would 
 be the amount due from the reversioner. 37 Formerly it was 
 arbitrarily apportioned between them, the tenant paying one- 
 
 
 
 37 Saville v. Saville, 2 Atk. 403 ; Eastabrook v. Hapgood, 10 Mass. 
 315, note; Foster r. Hilliard, 1 Story, 87; Newton V. Cook, 4 Gray, 46; 
 Gibson r. Crehore, 5 Pick. 146; Bell v. Mayor of New York, 10 Paige 
 Ch. 71; House r. House, Ib. 158; Swaine r. Ferine, 5 Johns. Ch. 482; 
 Cogswell r. Cogswell, 2 Edw. Ch. 231; Dorsey v. Smith, 7 Har. & J. 367; 
 Snyder r. Snyder, 6 Mich. 470; Abercrombie v. Riddle, 3 Md. Ch. 324; 
 Tyndall r. Peterson (Neb. 1904), 99 N. W. Rep. 659. The tables usually 
 employed are Wiggleworth's and the Carlisle tables, the latter being 
 considered the more accurate. 
 
 The following algebraic formula will be very helpful, if not actually 
 necessary, to an accurate computation of the tenant's share of contri- 
 bution : 
 
 8 
 
 p = amount of contribution. 
 
 a = annual interest. 
 
 r = rate per cent, of interest. 
 
 n = number of years of duration of life. 
 
 The calculation with the aid of this formula can be simplified by the 
 use of logarithms. 
 
 When it is stated in the text, that the reversioner is obliged to pay 
 the balance remaining, after deducting the sum to be liquidated by the 
 tenant for life, it is not meant that he is under a personal obligation 
 to pay it. He may refuse, and allow the tenant for life to enforce the 
 incumbrance against him. See post, Sec. 149. The tenure existing 
 between them only prevents the tenant from holding the incumbrance, 
 so acquired, adversely to the reversioner, if he should desire to obtain 
 the benefit of the purchase by contributing his share towards the ex- 
 penses. Foster v. Hilliard, 1 Story 77; Davies v. Myers, 13 B. Mon. 511. 
 In Nebraska it is held that a life tenant who pays off an encumbrance, 
 will be entitled to be reimbursed by the remainderman for the amount 
 paid, less such sum as will equal the present value of the annual in- 
 stallments of interest he would have paid, during his life, if the en- 
 cumbrance had- so long continued, with lawful interest on the' residue, 
 so ascertained, from the date of payment. Tyndall v. Peterson (Neb. 
 1904). 99 N. W. Rep. 659. 
 
 5 65
 
 55 i-i pE ' ESTATES. 
 
 third, and the reversioner two-thirds. But this rule li .;.* 
 now generally been superseded by the rule of apportion- 
 ment, just explained. 38 
 
 55. Same Of rent. It was the common-law rule thai, 
 if a tenant for years was ousted by one holding a bett<;r 
 title before the expiration of his lease, or between the days 
 of payment of his rent, he was not liable for any rent, since 
 the rent could not be apportioned to the time during which 
 he enjoyed the possession under the lease. So, if a tenant 
 for life grants a lease for years, the rent to be paid on a 
 fixed day, and he dies before the rent becomes due, his 
 personal representative would have no right of action for 
 rent accruing between the last pay-day and the day of his 
 death. 39 And if the lease was given by virtue of, and under, 
 a power, so that it did not terminate with the death of the 
 life tenant, the entire rent would be payable to the rever- 
 sioner, and the personal representatives of the life tenant 
 would get nothing. This rule was so strictly enforced that 
 in one case the rent lacked one hour of falling due, who-i 
 the life tenant died, and the reversioner took the rent. 40 But 
 
 as 1 Story Eq. 487. See Jones v. Sherrard, 2 Dev. & B. Ch. 17^; 
 Downing v. Hortshorn (Neb. 1903), 05 N. W. Rep. 801; Tyndall r. 
 Peterson, 99 N. W. Rep. 659; .Parrish v. Ross, 44 S. W. Rep. 1K4; 
 Bowen v. Brogau, 119 Mich. 218, 77, N. W. Rep. 942. But it is still 
 the rule of law in South Carolina, that the tenant is to pay one-thii 1, 
 and the reversioner two-thirds. Wright v. Jennings, 1 Bailey, 277. in 
 Garland v. Crow, 2 Bailey, 24, the court say : " In contemplation -.if 
 law, an estate for life is equal to seven years' purchase of the fee. To 
 estimate the present value of an estate for life, interest must be com- 
 puted on the value of the whole property for seven years; and perhaf/.;, 
 interest on the several sums of annual interest from the present time 
 to the periods at which they respectively fall due, ought to be abated " 
 Following this rule, and calculating the interest at seven per cent., it 
 tvould be a little more than thirty-five per cent, of the value of trie 
 estate. See post, Sec. 104. 
 
 2 Bla. Com. 124; 1 Washburn on Real Prop. 126; Fitchburg Cotton 
 Co. V. Melvin, 15 Miss. 268; Perry v. Aldrich, 13 N. H. 343; Hoag- 
 land v. Crum, 112 111. 365 (55 Am. Rep. 424). See post, Sec. 149. 
 
 <>Strafford V. Wentworth, 1 P. Wms. 180; Rickingham v. Penrice, 76. 
 66
 
 CH. VI..] LIFE ESTATES. 56 
 
 this injustice of the common law has now been remedied by 
 statutory changes, so that now generally, the rent is appor- 
 tioned between the life tenant and reversioner, giving each 
 his pro rata share according to the time of enjoyment of the 
 lease before, and after the tenant's death. And the per- 
 sonal representatives of the life tenant may sue the tenant 
 for years for the rent which may be apportioned to him. 41 
 
 56. Claim for improvements. The tenant for life has no 
 claim for any improvements which he may have made upon 
 the premises. He is bound to keep the premises in repair, 
 but is under no legal obligation to undertake any improve- 
 
 178; 1 Washburn on Real Prop. 127; post, Sec. 149. In England by the 
 Settled Estates Act, 1877, every tenant for life, unless expressly declared 
 to the contrary in the deed to him, may demise the premises for 
 twenty-one years, which shall not determine at the death of the tenant, 
 provided the lease takes effect in possession within one year after its 
 execution, and the rent reserved is made an incident of the reversion. 
 Williams on Real Prop. (5 ed.) 26, 27. But in the United States, as 
 a general rule, there are no such statutes, and an express power to make 
 leases is necessary, in order to have the term continue after the ex- 
 piration of the life estate. 
 
 i Williams on Real Prop. 27; 1 Washburn on Real Prop. 127; Price 
 r. Pickett, 21 Ala. 741; 3 Kent's Com. 469, 470. Under the Iowa code, 
 where the life tenant leased a farm for a year and died within four 
 months, his executor cannot recover any portion of the rent, in the 
 absence of a showing of what proportion had then accrued, or that any 
 rer.t had then accrued. Gudgel v. Southerland (1902), 90 N. W. Rep. 
 623. A lease of a life tenant, under the West Virginia statute, in case 
 of the % life tenant's death, is continued in effect until the end of the 
 current year, unless revived by the attornment of the tenant and the 
 affirmation of the remainderman. Holden v. Boring (1903), 52 W. Va. 
 37, 43 S. W. Rep. 86. Under the Tennessee Code, a recovery of rent 
 due on the termination of the life estate, may be had, but the creation 
 of a lease to extend beyond the life estate is not authorized. Collins 
 r. Crownover (1900), 57 S. W. Rep. 357. See also, Hoagland v. Crum. 
 113 111. 365, 55 Amer. St. Rep. 424; Lowery v. Reef (Ind.), 27 N. K. 
 Rep. 626; Carmen v. Mosier, 105 Iowa, 367, 75 N. W. Rep. 323; Outh. 
 111:111 r. Vallery, 51 Neb. 824, 71 N. W. Rep. 734; Fields . Bush. !>4 
 (la. 664, 21 S. E. Rep. 827; Lehndorf v. Cope, 122 111. 317, 13 N. E. Rep. 
 505. 
 
 67
 
 57 U FE ESTATES. [PART I. 
 
 ments. If he does, it is a voluntary act of his own, which 
 pives ruse to no claim against the reversion for the payment 
 of his share of the expenses. 42 On the other hand, the tenant 
 for life is obliged to pay all the taxes of every kind which 
 may be assessed upon the land 43 and, if .he fails to do so, 
 a receiver may be appointed to take charge of the estate, 
 and pay the taxes out of accruing rents and profits. 44 If 
 the life-estate is held in trust, the trustee must charge the 
 life-estate with the expense of the administration. 45 
 
 57. Estovers. This word signifies the timber that a 
 tenant is allowed to cut upon the land for use upon the prem- 
 ises, and for keeping them in repair. They were divided by 
 the common law into three kinds, viz. : house-bote, plougli- 
 bote, and hay-bote. House-bote included the wood necessary 
 for the repair of the buildings and for the purpose of fuel. 
 Plough-bote covered such as was needed for the manufacture 
 or repair of all instruments of husbandry; while hay-bote 
 was what was used in the erection and maintenance of fences 
 and hedges. The tenant, whether he is one for life, or for 
 years, has this right as a compensation for the duty of keep- 
 
 42 1 Washburn on Real Prop. 123; Parsons r. Winslow, 16 Mass. 361; 
 Sohier P. Eldridge, 103 Mass. 351; Corbet V. Laurens, 5 Rich. Eq. 301; 
 Elam r. Parkhill, 60 Tex. 581 ; Van Bibber v. Williamson, 37 Fed. Rep. 
 756; Hancox V. Meeker, 95 N. Y. 528; Trimmer v. Dorden, 61 S. C. 
 220. 39 S. E. Rep. 373; Pulse v. Osborne, 60 N. E. Rep. 374; Brodie V. 
 Parsons (Ky. ), 64 S. W. Rep. 426; but see apparently contra, Appeal 
 of Datesman, 127 Pa. St. 348. 
 
 Reyburn v. Wallace, 93 Mo. 326. 
 
 44 Varney v. Stevens, 22 Me. 331; Cairns v. Chabert, 3 Edw. Ch. 312; 
 Prettyman v. Walston, 34 111. 192; McCook v. Harp (Ga.), 7 S. E. Rep. 
 174; Stewart v. Matheny (Miss.), 5 So. Rep. 387; see In re Detmole, 4 
 N. Y. Supp. 903; Pruitt v. Holly, 73 Ala. 369; Jeffers v. Sidman (Mich. 
 1902), 89 N. W. Rep. 42; Hall v. French, 165 Mo. 430, 65 S. W. Rep. 
 76ft. A life tenant's agreement to buy improvements, erected by his 
 lessee, is not binding on the remainderman. Chilvers v. Race, 196 111. 
 71. 63 N. E. Ren. 701. 
 
 45 Cammann r. Cammann, 2 Demarest (N. Y.), 211. 
 
 68
 
 CH. VI.] LIFE ESTATES. . 57 
 
 ing the premises in repair and so does his assignee. 46 But 
 the right is limited to only what is reasonably necessary for 
 present use. If the tenant exceeds this amount, and cuts 
 timber, for the purpose of sale, or even cuts a reasonable 
 amount of wood, which is not suitable for estover, and ex- 
 changes it for what is, he is deemed guilty of waste, and 
 is liable to the reversioner for damages. 47 Nor can he use 
 them on any other place but the one from which they are 
 taken. Thus a widow, who had two places set out to her 
 as dower out of two separate estates, was not allowed to cut 
 wood on one place for use on the other, even though the 
 latter has no woodland. But if she obtained both parcels 
 of land from the same estate, it would not be waste for her 
 to use wood on one, which was cut on the other. 48 In Eng- 
 land the rule in regard to the right of estovers is much 
 stricter than it is in this country, on account of the difference 
 in the economic necessities of the two countries. In this 
 country woodland is very abundant, and what would be 
 waste in England, would not necessarily be so here. The 
 rule as applied in this country is that the life tenant may 
 cut as much timber as he may need for use upon the prem- 
 ises, provided it does not materially injure the value of the 
 reversion. Nothing but actual injury would be considered 
 waste, and there can be no general rules laid down in detail 
 
 *o 1 Washburn on Real Prop. 128, 129; Co. Lit. 416; 2 Bla. 35; Mor- 
 ris v. Knight (1900), 14 Pa. Sup. Ct. 324; Flener v. Flener (Ky. 1902), 
 69 S. W. Rep. 954. 
 
 <7 1 Washburn on Real Prop. 129; 2 Bla. Com. 122; Webster v. Web- 
 ster, 33 N. H. 21; Smith v. Jewett, 40 N. H. 532; Hubbard v. Shaw. 12 
 Allen 122; White v. Cutler, 17 Pick. 248; Padelford v. Padelford. 7 
 Pick, 152; Sarles r. Sarles, 3 Sandf. Ch. 601; Gardiner v. Bering, 1 Paige 
 Ch. 573; Doe t. Wilson, 11 East, 56; Chapman v. Epperson Co., 101 
 111. App. 161. A purchaser of timber wrongfully cut would be liable to 
 the remainderman for its value, if he had notice of the facts, Berger 
 #. Meehan Co. (Ky. 1902), 67 S. W. Rep. 1002. 
 
 "Cook v. Cook, 11 Gray 123; Padelford v. Padelford, 7 Pick. 152; 
 Phillips v. Allen, 7 Allen, 117; Dalton v. Dalton, 7 Ired. Eq. 197; Owen 
 v. Hyde, 6 Yerg. 334 ; Webster v. Webster, 33 N. H. 26. 
 
 69
 
 58 LIFE ESTATES. [P.VK.T I. 
 
 which would be applicable to each case which may arise. 
 The determination of the question depends upon the circum- 
 stances of each case. 49 
 
 58. Emblements What they are. Emblements are the 
 profits which the tenant of an estate is entitled to receive 
 out of the crops which he has planted, and which have not 
 been harvested, when his estate terminates. Under the term 
 emblements are only included, as a rule, such products of 
 the soil as are of annual growth and cultivation. Such would 
 be the different cereals and vegetables, wheat, corn, beans, 
 hay, flax, potatoes, melons, etc. Hops are also included, al- 
 though they are not planted annually. 50 But they do not 
 include the grasses, which are only planted perennially, nor 
 the fruit of trees, because in these cases, the tenant cannot 
 expect to reap such benefit in one year, and he is aware of 
 the fact when he plants them. 51 This does not, of course, 
 refer to the right which nurserymen have to trees and shrubs, 
 which they plant for the purpose of sale. As has been shown, 
 in such cases the plants are fixtures, which he is entitled to 
 remove, tree and plant, as well as the fruit thereof. 52 And 
 to entitle one to the crops, they must be planted by him. 
 If the crop has been planted by another, the tenant will not 
 be entitled to them, however much care he may have be- 
 stowed upon them. 53 As an incident to the right of emble- 
 
 <Padelford V. Padelford, 7 Pick. 152; Pynchon v. Stearns, 11 Mete. 
 304; Webster v. Webster, 32 N. H. 26; Jackson v. Brownson, 7 Johns. 
 227; Crockett, 2 Ohio St. 180; Board Sup. Warren Co. v. Gans, 80 Miss. 
 76; 31 So. Rep. 539. 
 
 oo Co. Lit. 55 a. b. note 364; 2 Bla. Com. 122; Stewart v. Doughty, 9 
 Johns. 108; 1 Washburn on Real Prop. 132, 133. See also Gardiner v. 
 Tate, 110 Ga. 456, 35 S. E. Rep. 697. 
 
 si 1 Washburn on Real Prop. 133; Reiff v. Reiff, 64 Pa. St. 134; 2 
 Bla. Com. 123; Evans v. Inglehart, 6 Gill & J. 1888, Co. Lit. 55 b., 4 
 Kent's Com. 73. 
 
 52 Taylor's L. & T. 81; 1 Washburn on Real Prop. 11, 133; Penton r. 
 Robart, 2 East 88; Miller v. Baker, 1 Mete. 27; Whitmarsh v. Walker, 
 76. 313; Wyndham v. Way, 4 Taunt. 316. 
 
 53 Grantham v. Hawley, Hob. 132 ; Stewart v. Doughty, 9 Johns. 103 ; 
 
 70
 
 CH. VI.] LIFE ESTATES. 59 
 
 ments, the tenant or his representatives have a right of entry 
 upon the land, after the termination of the tenancy, for the 
 purpose of attending to the crop while growing, and for 
 harvesting it when ripe. The right of ingress and egress, 
 however, is limited to what is necessary for these purposes. 54 
 But it has been asserted and claimed by some authorities, 
 that the tenant would be liable for rent for such occupation 
 of the land. 55 It does not, however, seem to be the general 
 custom to pay it or demand it. 56 In some of the States it 
 is provided by statute that the tenant must pay rent for 
 tlie time during which he holds over. 57 The common law as 
 to what constitutes emblements, and the extent of the right, 
 has been very accurately and definitely settled. But it will 
 b3 found that local usages and customs will cause the local 
 law to vary somewhat from the common law. Still the more 
 important principles are found to be uniformly applied 
 throughout the country. 58 
 
 59. Same Who may claim them. In order that a 
 tenant may claim emblements, he must show that his es- 
 tate was one of uncertain duration. This would, of course, 
 include the representatives of all tenants for life, whether 
 they are conventional or legal life estates, and because they 
 constitute the larger class of those who are entitled to them, 
 the subject has been discussed in this connection. 59 Ten- 
 
 (Jee v. Young, 1 Hayw. 17; Thompson v. Thompson, 7 Munf. 514; Price 
 i. Pickett, 21 Ala. 741. 
 
 54 1 Washburn on Real Prop. 136, 137; Forsythe V. Price, 8 Watts 
 82; Humphries v. Humphries, 3 Ired. 362. 
 
 so 1 Washburn on Real Prop. 137. 
 
 5McClellan v. Krall, 43 Kan. 216. 
 
 57 King v. Foscue, 91 N. C. 116. 
 
 ss 1 Washburn on Real Prop. 137. In several of the States, the tenant 
 for years under special circumstances is by local custom allowed enible- 
 nents, although generally, as will be explained in Sec. 59, tenants for 
 years have no right to emblements. See Van Doren r. Everitt, 5 N. J. L. 
 460; Howell v. Schenck, 24 N. J. L. 89; Templeman V. Biddle, 1 Harr. 
 fi22; Dorsey v. Eagle, 7 Gill A J. 331; Foster v. Robinson, 6 Ohio St. 95. 
 
 5 Taylor's L. & T. 81; Chesley v. Welch, 37 Me. 106; Kittredge v. 
 
 71
 
 59 LIFE ESTATES. [PART I. 
 
 ants at will also have the right, 60 but not tenants for years 
 or at sufferance. 01 And as an outcome of the law of enible- 
 inents the executors of the tenants in fee are entitled to the 
 crops if they are ripe for harvest, in preference to the heirs. 02 
 But if the estate is terminated through the fault of the ten- 
 ant, as when he abandons the premises, or voluntarily de- 
 stroys his estate, by failure to perform a condition, or where 
 the party is in wrongful possession, without color of title, 
 he is not entitled to emblements. 63 Thus, a widow has no 
 claim to emblements, where she terminates her tenancy dur- 
 ing widowhood by marriage; 64 nor has a mortgagor, where 
 the mortgage is foreclosed by the mortgagee, since he could 
 have avoided its destruction by payment of the mortgage. 63 
 But if the purchaser under a foreclosure sale, permits the 
 mortgagor, or one claiming under him, to retain possession 
 
 Woods, 3 N. H. 503; Whitmarsh v. Cutting, 10 Johns. 360; Graves v. 
 Weld, 5 B. & Ad. 105; Debow V. Colfax, 10 N. J. L. 128; Harris v. Car- 
 son, 7 Leigh 632; Spencer v. Lewis, 1 Houst. 223; Haslett v. Glesin, 7 
 Har. & J. 17; King v. Whittle, 73 Ga. 482. 
 
 eo Davis v. Thompson, 13 Me. 209; Sheeburn . Jones, 20 Me. 70; 
 Chandler V. Thurston, 10 Pick. 205; Stewart v. Doughty, 9 Johns. 108; 
 Harris v. Frink, 49 N. Y. 24. 
 
 ei Doe r. Turner, 7 M. & W. 226; Wheeler v. Kirkendall, 67 Iowa 612. 
 
 62 Penhallow v. Dwight, 7 Mass. 34 ; Kingsley v. Holbrook, 45 N. H. 
 319; Howe V. Batchelder, 49 N. H. 208; Pattison's Appeal; 61 Pa. St. 
 29. But they will pass with the land under a devise. Bradner v. Faulk- 
 ner, 34 N. Y. 349. In Mississippi a contrary rule is maintained, and 
 the crops pass to the heir upon the death of the tenant in fee. Mc- 
 Cormick r. McCormick, 40 Miss. 763. See also on the general subject, 
 2 Redf. on Wills, 143. As to the right of a vendee of the tenant to 
 emblements, see Sievers V. Brown, 34 Oregon 454, 56 Pac. Rep. 171, 45 
 L. R. A. 642. 
 
 032 Bla. Com. 123; Chesley v. Welch, 37 Me. 106; Chandler V. Thurs- 
 ton, 10 Pick. 210; W 7 hitmarsh f. Cutting, 10 Johns. 360; Rowell v. Klein, 
 44 Ind. 290; Richard t>. Liford, 11 Rep. 51; McLean v. Bovee, 24 Wis. 
 295. 
 
 64 Debow v. Colfax, 10 N. J. L. 128; Hawkins v. Skegg, 10 Humph. 31. 
 
 5 Doe v. Mace, 7 Black 2; McCall v. Lenox, 9 Serg. & R. 302; Jones 
 r. Thomas, 8 Blackf. 428. But see, World Bldg. Co. v. Martin, 151 
 Ind. 630, 52 N. E. Rep. 198; Varnun v. Winslow, 106 Iowa 287, 76 N. W. 
 Rep. 708. 
 72
 
 CH. VI.] LIFE ESTATES. 60 
 
 for any length of time, and plant crops, as a tenant at will 
 he would have a right to the emblements. 06 The right to 
 emblements is not only enjoyed by the parties above enu- 
 merated, but also by their assignees and sublessees, un- 
 less the tenant is restricted from alienating the land. 87 And 
 very often sublessees and assignees would be entitled to 
 emblemeuts, when the original parties would not. Thus, if a 
 widow, having an estate during widowhood, leases the prem- 
 ises, and then marries, her tenant would be entitled to emble- 
 ments, while she would not have been if she had been in 
 possession. 88 
 
 60. Definition and history of waste. Every tenant of a 
 particular estate is prohibited from doing anything with 
 the land which would constitute waste in the legal accep- 
 tation of the term. The subject applies, therefore, to all ten- 
 ants, whether for life or for years, or at sufferance. In early 
 times this disability was attached by law only to estates of 
 dower and curtesy, it being supposed that, since they were 
 created by the act of the law, the law should in all cases 
 provide for the due protection of the inheritance. But in 
 the case of conventional estates less than a fee, if the grantor 
 did not expressly provide such a protection, it was his own 
 fault, and he was left without a remedy. Subsequently, by 
 the statute of Marlbridge, the disability of committing waste 
 
 Allen v. Carpenter, 15 Mich. 38. And the same rule applies to a 
 mortgagor's tenant, who holds subject to the mortgage. Mayo. r. 
 Fletcher, 14 Pick. 525; Lynde v. Rowe, 12 Allen 101; Lane r. King, 
 8 Wend. 584. But where the crops are already harvested, when the 
 mortgage is foreclosed, the tenant is entitled to them; they do not 
 pass to the purchaser under the mortgage. Johnson r. Camp, 51 111. 220. 
 
 67 King v. Whittle, 73 Ga. 482; King v. Foscue, 91 N. C. 116. 
 
 sBla. Com. 124; Bulwer, 2 B. & Aid. 470; Davis 17. Eyton, 7 Ring, 
 154; Bevans v. Briscoe, 4 Har. & ,T. 139; contra, Gland's Case, 5 Rep. 
 116; Debow v. Colfax, 10 N. J. L. 128; Bittinger p. Baker, 29 Pa St. 70. 
 See also contra, note' 1, supra, in reference to mortgagors' tenant. As to 
 right of assignee for creditors, to emblements, see Huber's Estate, 10 
 Lane. L. Rev. 45. 
 
 73
 
 61 LIFE ESTATES. [PART I. 
 
 was made an ordinary and general incident to all kinds of 
 estates for life and for years. And the statute of Gloucester 
 imposed upon the guilty party the penalty of treble dam- 
 ages, together with the forfeiture cf his estate. 00 Waste is 
 51:1 unlawful act or omission of duty, which results in per- 
 manent injury to the inheritance. It may consist in either 
 diminishing its value, in increasing its burdens, or destroy- 
 ing and changing the evidences of title to the inheritance. 70 
 "Waste may therefore be voluntary, as by an act of commis- 
 sion, and involuntarily, by an act of omission. 71 
 
 Cl. What acts constitute waste General rule. Whether 
 a particular act constitutes waste is a question of fact for 
 the jury to determine. If it does damage to the rever- 
 sioner, and is not one of the ordinary uses, to which the 
 land is put, it is a waste. And the same act might be waste 
 in one part of the country, while in another it is a legitimate 
 use of the land. The usages and customs of each com- 
 munity enter very largely into the settlement of this ques- 
 tion. 72 
 
 c 1 Washburn on Real Prop. 139, 140. At common law only tenants 
 by act of the law could commit waste. Palmer v. Young, 108 111. App. 
 252. Statutes providing for double damages now exist in many of the 
 United States. Isom v. Oil Co., 140 Cal. 678, 74 Pac. Rep. 294. 
 
 TO Bla. Com. 281; Huntley v. Russell, 13 Q. B. 588; Doe V. Burlington, 
 5 B. & Ad. 517; Jones v. Chappell, L. R. 20 Eq. 539; McGregor v. Brown, 
 10 N. Y. 117; Preffit v. Henderson, 29 Mo. 327. And in some cases the 
 law raises a conclusive presumption that the act complained of is an 
 injury to the inheritance, and therefore constitutes waste. McGregor v. 
 Brown, supra; Agate v. Lowenbein, 57 N. B. 604. See post, Sec. 62. 
 
 7i Bla. Com. 281; 1 Washburn on Real Prop. 140. Thus, to alter a 
 building, so as to change the manner of using it, is voluntary waste. 
 To let it fall into decay, is permissive or involuntary waste. Converting 
 windows into doors is waste, in New Jersey. Peer v. Wadsworth 
 (1904), 58 Atl. Rep. 379. Anything is waste which changes the charac- 
 ter of the inheritance. Palmer v. Young, 108 111. App. 252. The owner 
 of a contingent remainder cannot sue for waste. % Taylor v. Adams, 93 
 Mo. App. 277; Palmer v. Young, 108 111. App. 252. 
 
 TZ See Drown r. Smith, 52 Me. 143; Jackson v. Tibbits, 3 Wend. 341; 
 Pynchon V. Stearns, 11 Mete. 304; Lynon's Appeals, 31 Pa. St. 4(5; 
 74
 
 CH. VT.] LIFE ESTATES. Cl, 
 
 62. Waste In respect to trees. The tenant has no ri^ht 
 to cut down any trees, or to injure them in any way, beyond 
 the amount he is entitled to as estovers. And at common law 
 certain trees, which were used for timber, could not be cut 
 for any purpose. 73 But in this country the question would 
 depend upon whether the cutting of a particular tree would 
 be consonant with good husbandry, in its relation to the in- 
 heritance and the surrounding circumstances. 74 In the case 
 
 Webster v. Webster, 33 N. H. 25; Morehouse v. Cotheal, 22 N. J. L. 521; 
 Jackson v. Brownson, 7 Johns. 227; Sarles v. Sarles, 3 Sandf. Ch. 601; 
 Adams v. Brereton, 3 Har. & J. 124; Davis V. Gilliam, 5 Ired. Eq. 311. 
 
 "2 Bla. Com. 281; 1 Washburn on Real Prop. 141; Honywood v. 
 Honywood, L. R. 18 Eq. 306. Mr. Washburn mentions oak. ash and elm, 
 as being timber trees in all parts of England, while others constitute 
 timber in some sections, and not in other sections, according to local 
 usages and customs, p. 65 supra. Timber trees are those which are 
 ussd for building and repairing houses. Chandos v. Talbot, 2 P. Wms. 
 606; Alexander v. Fisher, 7 Ala. 514. The only purpose for which the 
 tenant may cut timber is for the repair of the buildings on the land, 
 which be is under obligation to keep in repair. 22 Vin. Abr. 453 ; Doe 
 r. Wilson, 11 East 56. And he cannot cut timber unsuitable for repair, 
 to sell and with the proceeds to procure other timber which is suitable. 
 Chapman v. Epperson Co. (1902), 101 111. App. 161; Berger V. Meehan 
 Co. (Ky. 1902), 67 S. W. Rep. 1002. See ante, Sec. 57. 
 
 T4Keeler v. Eastman, 11 Vt. 293; Chas. v. Hazel ton, 7 N. H. 171; 
 Hickman v. Irvine, 3 Dana 121; Sarles v. Sarles, 3 Sandf. Ch. 601; 
 Givens v. McCalmont, 4 Watts, 460; Shine v. Wilcox, 1 Dev. & B. Eq. 
 631; Smith v. Poyas, 2 DeS. 65; Sayers v. Hoskinson, 110 Pa. St. 473; 
 Duncome v. Felt, 45 N. W. Rep. 1004; Davis v. Clark, 40 Mo. App. 515. 
 But it is an almost universal rule, that shade and ornamental trees 
 cannot be cut down by the tenant. Honeywood V. Honeywood, L. R. 18 
 Eq. 306; Hawley v. Wolverton, 5 Paige, 522; Dunn V. Bryan, 7 Ired. 
 Eq. 143; Marker V. Marker, 9 Hare 1. So also is it waste to cut young 
 trees. Dunn v. Bryan, supra. In conformity with the rule enunciated 
 in the text, it has been held in Massachusetts that the cutting of oak 
 for firewood is not waste according to the common usage and custom 
 in that State. Padelford r. Padelford, 7 Pick. 162. A remainderman 
 is held, in Roby r. Newton (Ga.), 68 L. R. A. 601, to be entitled to 
 the forfeiture of the life tenant's interest because of waste only when 
 it appears that there has been both permissive and voluntary waste by 
 the tenant, or one for whom he was responsible, and that the voluntary 
 waste was committed wantonly. 
 
 75
 
 62 LIFE ESTATES. [PART I. 
 
 of wild and uncultivated lands, the tenant would have the 
 right to clear the land of the trees, whatever they may be, 
 if such clearing was necessary for the purpose of cultivating 
 it. 75 And the timber cut by the tenant in clearing belongs 
 to him, which he may sell for his own profit. 70 But in no 
 case is the tenant allowed to cut timber for sale, unless this 
 is the customary mode of using the land. 77 
 
 75 Drown r. Smith, 52 Me. 141; Keeler r. Eastman, 11 Vt. 293; 
 Jackson r. Brovvnson, 7 Johns. 227; Harder r. Harder, 20 Barb. 414; 
 Morehouse v. Cotheal, 22 N. J. L. 521; Hastings v. Ounckleton, 3 
 Yeates 261; Davis v. Gilliam, 5 Ired. Eq. 311; Woodward v. Gates, 
 38 Ga. 205; Adams v. Brereton, 3 Har. & J. 114; Crockett V. Crockett, 
 2 Ohio St. 180; P'roffitt v. Henderson, 29 Mo. 327. And the same rule 
 is now applied to a dowress, although formerly under the old rule, that 
 the tenant of a particular estate could under no circumstances change 
 woodland into arable land, the widow was held not to have dower in 
 wild lands. 4 Kent's Com. 76; Ballantine f. Poyner, 2 Hayw. 110; 
 Perkins r. Coxe, Ib. 339; Hastings f. Crunkleton, 3 Yeates, 261; Owen 
 r. Hyde, 6 Yerg. 334; Findlay v. Smith, 6 Munf. 134; Alexander r. 
 Fisher, 7 Ala. 514. See contra, Connor f. Shepherd, 15 Mass. 164. 
 But it must be with the bona fide intention to clear the land. If under 
 this pretense, the tenant is really cutting for the purpose of profiting 
 by the sale of the wood, it will be waste, notwithstanding the land is 
 made more valuable by being cleared. See Kidd r. Dennison, 6 Barb. 8 ; 
 Davis v. Gilliam, supra,. 
 
 76 Da vis v. Gilliam, 5 Ired. Eq. 311; Crockett r. Crockett, 2 Ohio St. 
 180. 
 
 77 Chase v. Hazleton, 7 N. H. 171; Clemence r. Steere. 1 R. I. 272; 
 Parkins r. Coxe, 2 Hayw. 339; Kidd V. Dennison, 6 Barb. 9; Davis r. 
 Clark, 40 Mo. App. 515. But if the land is customarily used in culti- 
 vating trees for sale, the tenant may follow the custom, and continue 
 to cut and sell the wood. Bagot V. Bagot, 32 Beav. 509 ; Clemence f. 
 Steere, supra; Ballentine V. Poyner, 2 Hayw. 110. So also if the land 
 is let with a furnace or turpentine still, wood may be cut for use in 
 the furnace, or the pine may be tapped for resin to be used in the still, 
 if that had been the custom with former owners. Den f. Kenny, 5 X. 
 J. L. 652; Findlay r. Smith, 6 Munf. 134; Carr r. Carr, 4 Dev. & B. 17!); 
 The unauthorized cutting of timber by tenants has been held to be 
 waste, in the following recent cases: Butts r. Fox (Mo. 1904). 81 
 S. W. Rep. 493; Dix v. Jaquay, 88 N. Y. S. 228; 94 App. Div. 554; 
 Chapman v. Epperson Co., 101 111. App. 161; Bergan f. Meehan Co. 
 (Ky. 1902), 67 S. W. Rep. 1002; Morris v. Knight, 14 Pa. Sup. Ct. 324; 
 
 76
 
 CH. VI.] LIFE ESTATES. Li 
 
 63. Property in timber unlawfully cut. If timber is un- 
 lawfully cut from the premises, the reversioner in fee con- 
 tinues to have the property in it, and he may recover dam- 
 ages or the possession of the timber and for that purpose he 
 may maintain any of the personal actions of trover, re- 
 plevin or trespass de bonisJ 8 And the same principle is 
 applied to any article of a personal nature, which has been 
 unlawfully severed from the freehold. 79 
 
 64. Continued In respect to minerals and other deposits. 
 The tenant is not permitted to dig and sell gravel, clay 
 and other deposits, which may be found thereon, or to use 
 the clay for the purpose of making bricks. 80 If, however, 
 it had been the custom with previous owners to make such 
 use of the land, the tenant may continue to use what pits 
 and mines are already opened, but he cannot open new 
 ones. 81 In the case of minerals he may follow the same 
 
 White v. Fox, 125 N. C. 544; 34 S. E. Rep. 645; Chase v. Driver, 92 
 Fed. Rep. 780, 34 C. C. A. 668. 
 
 78 Lewis Bowie's Case, 11 Rep. 82; Seagram v. Knight, L. R. 2 Ch. 
 App. 631; Richardson v. York, 14 Me. 216; Jones v. Hoar, 5 Pick. 285; 
 Lane v. Thompson, 43 N. H. 324 ; Mooers v. Wait, 3 Wend. 104 ; Berri- 
 mann V. Peacock, 9 Bing. 386; Channon v. Patch, 5 B. & C. 897; Froth- 
 ingham v. McKusick, 24 Me. 403; Langdon r. Paul, 22 Vt. 205. 
 
 7 1 Washburn Real Prop. 155. See also, Smith v. Smith, 105 Ga. 
 106, 31 S. E. Rep. 135; Davis v. Gilliam, 40 N. C. 308; Davis v. Clark, 
 40 Mo. App. 515; Webster 0. Peet, 97 Mich. 327; Modlin v. Kennedy, 53 
 Ind. 267; Brashear v. Macey, 3 J. J. Marsh 93; Weatherby v. Woo'd, 
 29 How. Pr. 404. 
 
 so Co. Lit. 53 b; Huntley v. Russell, 13 Q. B. 572; Livingston v. Rey- 
 nolds, 2 Hill 157. So also to open new mines, or to make excavations 
 in search for mines, would be waste, unless the right is expressly 
 granted. 2 Bla. Com. 282; Saunder's Case, 5 Rep. 12; Darcy v. Askwith, 
 Hob. 234; Stoughton v. Leigh, 1 Taunt. 410; Viner v. Vaughan, 2 Beav. 
 466; Irwin v. Covode, 24 Pa. St. 162; Owings v. Emery, 6 Gill 260. 
 See White, Mines & Min. Rem., Sec. 22. 
 
 si Huntley v. Russell, 13 Q. B, 591; Moyle v. Moyle, Owen 66; Knight 
 v. Moseley, Amb. 176; Stoughton v. Leigh, 1 Taunt. 410; Kier v. Peter- 
 son, 41 Pa. St. 361; Billings v. Taylor, 10 Pick. 460; Coates v. Cheever, 
 1 Cow. 460; Lenfers v. Henke, 73 111. 405; 24 Am. Rep. 263; Hendrix 
 r. McBeth, 61 Ind. 473; 28 Am. Rep. 680. 
 
 77
 
 65 LIFE ESTATES. [PART I. 
 
 vein and for the purpose may make new shafts, railroads, 
 and other improvements. 82 
 
 65. Continued Management and culture of land. At 
 common law it was not permitted of the tenant of a par- 
 ticular estate to change the character of the land, as wood, 
 pasture or arable land, and put it to a different use. Any 
 such change in the management or culture of the land con- 
 stituted waste, for which the tenant would be answerable 
 to the reversioner. 83 The rule, however, in this country is, 
 that no such change will be waste unless it results in a per- 
 manent injury to the inheritance. In each case it is a ques- 
 tion of fact, whether a particular act is waste, and it is very 
 largely governed by the usages and customs of the place in 
 which the question arises. 84 The tenant, however, is obliged 
 
 ssClavering r. Clavering, 2 P. Wms. 388; Billings v. Taylor, 10 Pick. 
 460; Coates v. Cheever, 1 Cow. 460; Irwin v. Covode, 24 Pa. St. 162; 
 Lynn's Appeal, 31 Pa. St. 45; Kier v. Peterson, 41 Pa. St. 361; Crouch 
 i\ Puryear, 1 Rand. 258; Findlay u. Smith, 6 Munf. 134. Sayers v. 
 Hoskinson, 110 Pa. St. 473. A tenant for life cannot operate oil or 
 gas wells that were not open when he came into possession. Marshall 
 r. Mellon, 170 Pa. St. 371; Williamson v. Jones, 39 W. Va. 256. But 
 open oil or gas wells can be worked by life tenant the same as a 
 tenant without impeachment for waste. In re Chaytors Set., 69 L. J. 
 Ch. 837, 2 Ch. 804; White, Mines & Min. Rem., Sec. 22, p. 36. The 
 right to work mines may either be justified by the terms of the settk- 
 ment or the fact that they were opened when the life estate attached. 
 In re Chaytors settlement (Eng. 1900), 69 Law. J. Ch. 837; 2 Ch. 804. 
 But see Maher's Admr. v. Maher, 73 Vt. 243, 50 Atl. Rep. 1063. A 
 devisee of a life estate, in Indiana, is entitled to the royalties from oil 
 wells opened by the testator's lessee, though after the life estate accrued. 
 Andrews r. Andrews (1903), 67 N. E. Rep. 461. See, as to right to 
 royalty, in Texas, Lone Acre Oil Co. v. Swayne (Tex. 1903), 78 S. W. 
 Rep. 380. After the death of the life tenant, his tenant would be a 
 trespasser, if he continued to work the mines. Crawford v. Forest 
 Oil Co., 208 Pa. 5, 57 Atl. Rep. 47; Eckin v. Hawkins, 52 W. Va. 124. 
 
 832 Bla. Com. 282; Co. Lit. 53; Darcy V. Askwith, Hob. 234a, 1 
 Washburn on Real Prop. 145. 
 
 *Keeler V. Eastman, 11 Vt. 293; Clemence V. Steere, 1 R. I. 272; 
 Webster r. Webster, 33 N. H. 25; Jones V. Whitehead, 1 Pars. 304; 
 
 78
 
 C-I. VI.] LIFE ESTATES. 66 
 
 to use the land in the manner required by the rules of good 
 husbandry, and it will be waste if he permits the arable or 
 meadow land to be overgrown with brushwood, or if he ex- 
 hausts the lands by unwise tillage. 85 
 
 66. Continued In respect to buildings. In like manner 
 at common law, the strict rule was applied, that any change 
 in the character of the building, even though it resulted in 
 a benefit to the inheritance, would be considered waste. Thus 
 the removal of wainscots, the opening of new doors and win- 
 dows, as well as the more important change of the building 
 from a dwelling house to a store, or a change in the location 
 of the building, was held to be waste. 80 A more liberal rule 
 is now applied, and actual damage must be shown, in order 
 that the action might lie. 87 And although even now a ma- 
 
 Sarles v. Sarles, 3 Sandf. 601; Owen V. Hyde, 6 Yerg. 334; Proffitt v 
 Henderson, 29 Mo. 327; Sayres v. Hoskinson, 110 Pa. St. 473. 
 
 85 Clemens r. Steere, 1 R. I. 272 ; Clark v. Holden, 7 Gray 8 ; Sarles r. 
 Sarles, 3 Sandf. Ch. 601. Likewise the removal of grasses, manure 
 made upon the land, and the digging of turf, which by the rules of 
 good husbandry should be left upon the land to enrich it, would be 
 waste. Sarles v. Sarles, supra; Daniels V. Pond, 21 Pick. 371; Moulton 
 r. Robinson, 27 N. H. 550; Plumer v. Plumer, 30 N. H. 558; Middlebrook 
 v. Corwin, 15 Wend. 169; Lewis V. Jones, 17 Pa. St. 262; Harris V. Mins, 
 20 W. R. 999. Where, in an action for waste, committed by the as- 
 signee of the life tenant, it was shown not only that the orchards and 
 sugar bush had been cut, but that the farm had been permitted to 
 grow up with weeds and that, while capable of supporting 20 cows and 
 producing 1,500 bushels of grain, before the waste, it was thereafter 
 practically worthless, the measure of damages was held to be the 
 difference in value of the farm, per acre, before and after the waste. 
 Cole r. Bickelhaupt (N. Y. 1901), 71 N. Y. S. 636; 64 App. Div. 6. 
 
 sCo. Lit. 53a, note 344; City of London v. Greyme, Cro. Jac. 181; 
 I \\ashburn on Real Prop. 146; Huntley v. Russell, 13 Q. B. 588; 
 Greene f. Cole, 2 Saund. 252; Jackson v. Cator, 5 Ves. 688; Douglass 
 r. Wiggins, 1 Johns. Ch. 435; Agate f. Lowenbein, 57 N. Y. 504; Mann- 
 sell r. Hart, 11 Ired. Eq. 478; Thatcher v. Phinney, 7 Allen's Tel. Cas. 
 156; Austin v. Stevens, 24 Me. 520; Wall v. Hinds, 4 Gray 256. But ha 
 may tear down a ruinous building, which is dangerous to his cattle or 
 to life and limb. Clemence . Steere, 1 R. I. 272. 
 
 " Young v. Spencer, 10 B. & C. 145; Doe v. Curlington, 5 B. & Ad. 
 
 79
 
 G6 LIFE ESTATES. [PART I. 
 
 terial and permanent change in the character of the build- 
 ing, and the uses to which it might be put, will not be per- 
 mitted, yet any slight or immaterial change, as the cutting 
 of a door or the opening of two rooms into one, will be per- 
 missible, whenever it is possible for the premises to be re- 
 stored to their original condition at the end of his term, 
 and in no case is it likely that the erection of new buildings 
 will be considered waste. 88 The tenant is also under obliga- 
 tion to keep the buildings in repair, and is responsible in 
 damages, if he permits them to fall into decay. Tenants for 
 life or for years, are required to make all the repairs neces- 
 sary to keep the premises in as good condition as they were 
 when they entered into possession ; and for that purpose 
 they may use the timber to be found on the land. 89 But 
 the tenant is obliged to repair, even though there be no 
 
 507; Webster v. Webster, 33 N. H. 25; McGregor v. Brown, 10 N. Y. 118; 
 Jackson v. Tibbits, 3 Wend. 341; Phillips v. Smith, 14 Mees. & W. 595; 
 Jackson v. Andrew, 18 Johns. 431. Making doors out of windows, i& 
 waste. Peers V. Wordsworth (1904), 58 Atl. Rep. 379. 
 88 Jones v. Chappelle, L. R. 20 Eq. 539 ; Winship v. Pitts, 3 Paige 259 ; 
 Jackson v. Tibbits, 3 Wend. 341; Sarles v. Sales, 3 Sandf. Ch. 601; 
 Beers v. St. John, 16 Conn. 329. But see Dooley v. Stringham, 4 Utah 
 107, where the tearing down of an old building and erection of a new 
 one was considered an act of waste. See cases cited in notes 86 and 87, 
 supra. And if the structure is an agricultural fixture, which the tenant 
 may remove according to the law of fixtures, it is certainly no act of 
 waste for him to put it there; and he may remove it at the expiration 
 of the estate, if he can do so without materially injuring the inheritance. 
 Van Ness v. Pacard, 2 Pet. 137; Austin v. Stevens, 24 Me. 520; Clemence 
 v. Steere, 1 R. I. 272 ; Dozier V. Gregory, 1 Jones L. 100. But see Mad- 
 igan v. McCarthy, 108 Mass. 376; Benney v. Foss, 62 Me. 251; Conklin 
 V. Foster, 57 111. 104. For change of building, see Smith V. Chopple. 
 25 Pa. Sup. Ct. 81; held, not to be waste, to move building, in Mels f. 
 Babst Brew. Co., 104 Wis. 7, 79 N. W. Rep. 738, 46 L. R. A. 478. 
 
 1 Washburn on Real Prop. 149 ; Long v. Fitzsimmons, 1 Watts & S. 
 530; Darcy v. Askwith, Hob. 235; Miles V. Miles, 32 N. H. 147; Harder 
 v. Harder, 26 Barb. 409; Sticklebone V. Hatchman, Owen 43; Walls r. 
 -Hinds, 4 Gray 266; Griffith's Case, Moore 69; Co. Lit. 53 a; Wilson f. 
 Edmunds, 24 N. H. 517; Kearney v. Kearney, 17 N. J. Eq. 504; Harvey 
 v. Harvey, 41 Vt. 373. 
 80
 
 CH. VI.] LIFE ESTATES. 67 
 
 timber on the land. 90 He will not, however, be forced to 
 expend any very large sums of money, where there has been 
 any extraordinary decay or destruction of the buildings. 
 And if the buildings were in a state of decay at the time 
 when his term begun, he will not be called upon to repair. 91 
 The tenant is not responsible for damage done by the act of 
 God, the public enemies, or by the law. But he is obliged 
 to protect the premises from waste by strangers, and for the 
 acts of such persons he is responsible to the reversioner. 92 
 If the buildings are destroyed by fire through the careless- 
 ness of the tenant or his servants, he is responsible in dam- 
 ages, but he is not liable if it is the result of an accident, 
 and he is free from fault. 93 
 
 67. Exemption from liability. Although the liability for 
 waste is an ordinary incident of all kinds of particular es- 
 tates, the lessor or reversioner may by grant exempt the ten- 
 ant from such liability. He is then said to have an estate 
 for life or for years ''without impeachment of waste." 
 Such a tenant may do any of those things enumerated above, 
 
 o Co. Lit. 53 a ; 1 Washburn on Real Prop. 149. 
 
 i Co. Lit. 53, 54 b; Wilson v. Edmonds, 24 N. H. 517; Clemencc v. 
 Steere, 1 R. I. 272. 
 
 2Co. Lit. 53 a, 54 a ; Huntley v. Russell, 13 Q. B. 591; Attersoll r. 
 Stevens, 1 Taunt. 198; Fay v. Brewer, 3 Pick. 203; Pollard v. Shaffer, 
 1 Dall. 210; Wood v. Griffin, 46 N. Y. 237; Cook v. Champlain Trans. 
 Co., 1 Denio 91; Austin v. Hudson R. R., 25 N. Y. 341; White v. Wag- 
 ner, 4 Har. & J. 373; Beers v. Beers, 21 Mich. 464. 
 
 93 By statute (6 Anne, Ch. 31) the English common law of liability 
 for loss by fire was limited to cases where the fire occurred through 
 the negligence of the tenant or his servant; and although there has 
 Itoon no general express re-enactment of it, the statutory qualification 
 seems to have been generally adopted, in conformity with the statement 
 in the text. See Filliter v. Phippard, 11 Q. B. 347; Barnard v. Poor, 
 21 Pick. 378; Clark t?. Foot, 8 Johns. 421; Lansing r. Stone, 37 Barb. 
 15; Althorf v. Wolfe, 22 N. Y. 366; Maull v. Wilson, 2 Harr. 433; 4 
 Kent's Com. 82; 1 Washburn on Real Prop. 150, 151; Spaulding v. Chi- 
 cago and C. R. R., 30 Wis. 110. 
 
 6 81
 
 68 LIFE ESTATES. [PAKT I. 
 
 which is usually denied to a tenant of a particular cst;itc.'" 
 But he cannot commit willful and malicious waste, and will 
 be restrained from doing so if he attempts it; or, if he has 
 already done so, he will be made to respond in damages. 9 '"' 
 
 68. Remedies for waste. If the waste is already com- 
 mitted, the tenant is liable to an action at law for damages. 
 At common law, under the statute of Marlbridge and Glou- 
 cester, the judgment was given for treble the actual dam- 
 age, and the land wasted was forfeited to the reversioner. 90 
 The forms of the common-law actions, as well as the nature 
 of the judgment, are now regulated in the different States 
 by statute, and for detail the reader is referred to these 
 statutes. 97 If the waste is only threatened, or there is danger 
 of its repetition in the future, the equitable remedy by in- 
 junction is more salutary. The tenant is enjoined from the 
 commission of the waste, upon pain of punishment for con- 
 tempt of court. 98 An injunction will be granted in every 
 
 *2 Bl. 283; 1 Cruise Dig. 128; Lewis Bowie's Case, 11 Rep. 83; Pyne 
 v. Dor., 1 T. R. 56; Cholmeley v. Paxton, 2 Bing. 207. 
 
 03 1 Washburn on Real Prop. 155; Vane v. Barnard, 2 Vern. 738; 
 Marker v. Marker, 4 Eng. Law & Eq. 95. A devise of the use and 
 full control of real estate, where the context of the will shows that the 
 testator intended the devisee to have absolute control, free from inter- 
 ference by the remainderman, gives an estate without impeachment of 
 waste. Wiley v. Wiley (Neb. 1901), 95 N. W. Rep. 702. 
 
 6Bla. Com. 283; 1 Washburn on Real Prop. 152. 
 
 T 1 Washburn on Real Prop. 153, 157, note; 4 Kent's Com. 79. The 
 treble damages may still be obtained in some of the States. Sackett v. 
 Sackett, 8 Pick. 306; Harder v. Harder, 26 Barb. 409; Chipman v. 
 Emeric, 3 Cal. 283. While single damages only can be obtained in 
 others. Smith v. Follansbee, 13 Me. 273; Barker V. Chambliss, 12 Ga. 
 235 ; Woodward v. Gates, 38 Ga. 205. In most of the States the amount 
 of damages is regulated by statute. 
 
 as Bla. Com. 283 ; Jones v. Hill, 1 Moore, 100 ; Tracy v. Tracy, 1 Vern 
 23; Kane v. Vanderburgh, 1 Johns. Ch. 11; Harris v. Thomas, 1 Hen. & 
 M. 18; Mayo V. Feaster, 2 McCord Ch. 137; Mollineaux V. Powell, 3 P. 
 Wms. 268; Basore v. Henkle, 82 Va. 474. An injunction would not be 
 granted, unless timely and the waste willful. Gormon v. Peterson 
 (1901), 193 111. 375, 62 N. E. Rep. 210, 55 L. R. A. 701. Or when the 
 82
 
 CH. VI.] LIFE ESTATES. 68 
 
 case of waste, where irreparable injury is feared. The in- 
 jury need not perhaps be very material where the question 
 arises between persons in privity of estate; but as between 
 strangers it is necessary to show that the danger is im- 
 mediate and the probable injury material before the court 
 will interpose." And if injury has already been done, the 
 court will not only grant an injunction against future waste; 
 but it is competent for the court to inquire into the amount 
 of damage suffered, and give judgment for the same. 1 At 
 common law the technical action for waste and treble dam- 
 ages could only be maintained by the tenant of an estate of 
 inheritance immediately succeeding the particular estate. 
 And the interposition of a freehold estate in remainder would 
 take away his action. 2 But the common-law action upotf 
 the case in the nature of waste could be maintained by any- 
 one who had a reversionary interest in the land, and had 
 been injured thereby. 3 
 
 right of the tenant is in doubt. Butts V. Fox (Mo. 1904), 81 S. W. Rep. 
 493. But it has been held that statutory remedies, when they afford 
 ample protection, supersede the equitable remedy. Cutting V. Carter, 
 4 Hen. & M. 424; Poindexter v. Henderson, Walk. (Mich.) 176. 
 
 Leighton v. Leighton, 32 Me. 399; Attaquin V. Fish, 5 Mete. 140 - f 
 Atkins v. Chilson, 7 Mete. 398; Rodgers V. Rodgers, 11 Barb. 595; Liv- 
 ingston v. Reynolds, 26 Wend. 115; Storm v. Mann, 4 Johns. Ch. 21 jr. 
 London v. Warfield, 5 J. J. Marsh. 196; White Water Canal v. Comegysr, 
 2 Ind. 469; Field v. Jackson, 2 Dick. 599. 
 
 1 Story's Eq. Jur., Sees. 517, 518; 1 Washburn on Real Prop. 161; 
 Watson v. Hunter, 5 Johns. Ch. 170; Ware V. Ware, 6 N. J. Eq. 117. 
 
 2 Co. Lit. 218 b, note 122 1 ; Williams v. Balton, 3 P. Wms. 268; Bacon 
 v. Smith, 1 Q. B. 345; Hunt v. Holl, 37 Me. 363; Peterson v. Clark, 15 
 Johns. 205, 206; Palmer v. Young, 108 111. App. 252. Nor can a con- 
 tingent remainderman maintain the action. Taylor t?. Adams, 93 Mo., 
 App. 277. .. i 
 
 3 Chase v. Hazelton, 7 N. H. 175; Williams v. Bolton, 3 P. Wms. 268. 
 But in the Code States this distinction between trespass and trespass on 
 the case has been abolished. Brown r. Bridges, 30 Iowa 145; Hine v. 
 Railroad Co., 59 Hun 625; Macy v. R. R. Co., 59 Hun 365. An allega- 
 tion that an injury resulted to the use and interest of plaintiff in the 
 premises, is sufficiently broad to base damages for injury to the in- 
 heritance thereon. Dix v. Jaquay, 88 N. Y. S. (1904), 94 App. Div. 
 
 83
 
 68 LIFE ESTATES. [PART I. 
 
 554. It is discretionary with the court, under the California statute, 
 whether treble damages should be allowed or not. Isom V. Book, 142 
 Cal. 666, 76 Pac. Rep. 506; Isom V. Crude Oil Co., 140 Cal. 678, 74 
 Pac. Rep. 294. The insolvency of the party in possession is not an 
 essential to an injunction restraining waste. Palmer v. Young, 108 111. 
 App. 252. As to right of administrator to enjoin the commission of 
 waste, see Halstead v. Coen (Ind. 1903), 67 N. E. Rep. 957. Possession 
 by the plaintiff is not essential to an injunction. Peck V. Ayers, &c., Tie 
 Co., 116 Fed. Rep. 273; Peterson v. Ferrell, 127 N. C. 169, 37 S. E. Rep. 
 189. In a suit for Damages for removal of trees, it must be shown how 
 many trees were cut and the number of stumps appearing is not evi- 
 dence that defendant cut the trees growing thereon. Learned v. Ogden, 
 80 Miss. 769; 32 So. Rep. 278. And the tenant can show that trees 
 were in a dying condition. Morris v. Knight, 14 Pa. Super. Ct. 324. 
 Evidence that an orchard was destroyed through inattention is such 
 permissive waste as to render the tenant liable. Cole V. Bicklehaupt, 
 71 N. Y. S. 636, 64 App. Div. 6. Statutes conferring a right of action 
 for waste, do not, generally, effect the common law right of action on 
 the case, for waste. Thackery v. Edigan, 44 Atl. Rep. 689 ; Smith r. 
 Smith, 105 Ga. 106; Tate v. Field, 57 N. J. Eq. 53; White v. Fox, 125 
 N. C. 544, 34 S. E. Rep. 645. 
 
 84
 
 CHAPTER VII. 
 
 ESTATES ARISING OUT OP THE MARITAL RELATION 
 
 SECTION I. Estate of husband during coverture. 
 II. Curtesy. 
 
 III. Dower. 
 
 IV. Homestead. 
 
 SECTION I. 
 ESTATE OF HUSBAND, DURING COVERTURE. 
 
 SECTION 69. Effect of marriage upon wife's property. 
 
 70. Husband's rights in equity. 
 
 71. How husband's rights may be barred. 
 
 72. How prevented from attaching. 
 
 73. Restrictions upon alienation of wife's separate property. 
 
 74. Statutory changes in the United States. 
 
 69. Effect of marriage upon wife's property. The legal 
 personality of the wife is lost by marriage in that of the 
 husband. In the eye of the common law they are considered 
 and treated as one person, the husband being the head and 
 representative of the duality. According to the common law, 
 therefore, the wife cannot, during coverture, hold and be 
 possessed of property, either real or personal, independent of 
 her husband. Her rights become merged for the time be- 
 ing in his. If the property is real estate, the husband is 
 entitled to the rents and profits which accrue during cover- 
 ture. 1 If the rents, which are due, remain uncollected at 
 
 i 1 Bla. Com. 442; 1 Washburn on Real Prop. 328, 329; Williams on 
 Real Prop. 223, 224. 
 
 85
 
 69 HUSBAND'S ESTATE DURING COVERTURE. [PART r. 
 
 his death, his personal representatives are entitled to them, 
 in preference to the widow. 2 The husband is also alone 
 authorized to sue for accruing rents. 8 He can also alien his 
 wife's lands or the rents and profits thereof during cover- 
 ture. 4 His estate is a freehold estate of uncertain duration, 
 which is limited by the continuance of the coverture, and 
 which may last during his life. 5 But, notwithstanding this 
 almost unrestricted control over her lands, the husband 
 is not treated as having the sole seisin thereof. They are 
 regarded as being jointly seised in fee, and in an action for 
 injury to the inheritance, the pleadings should be in their 
 joint names, and contain a declaration of their joint seisin. 6 
 The husband, however, cannot incumber or alien his wife's 
 estate in reversion. She takes it at his death, unaffected 
 by any disposition he might have made of it during cover- 
 ture. 7 
 
 2 Shaw t?. Partridge, 17 Vt. 626; Jones v. Patterson, 11 Barb. 572; 1 
 Washburn on Real Prop. 329; Williams on Real Prop. 223. 
 
 s Babb v. Perley, 1 Me. 6 ; Mattocks v. Stearns, 9 Vt. 326 ; Fairchild V. 
 Chastelleaux, 1 Pa. St. 176. And this is true of all actions for protec- 
 tion of the freehold, where the inheritance is not materially affected. 
 But where the trespass affects the inheritance, the action should be in 
 their joint names. Babb v. Perley, supra; Dippers at Tunbridge Wells, 
 2 Wils. 423; 2 Kent's Com. 131. 
 
 * Co. Lit. 325 a, note 280; Robertson V. Norris, 11 Q. B. 916; Trask 
 v. Patterson, 29 Me. 499; McClain v. Gregg, 2 A. K. Marsh. 454; 
 Mitchell v. Sevier, 9 Humph. 146; Williams on Real Prop 227; Jones v. 
 Field, 42 Ark. 357. But in Massachusetts a different doctrine is held, 
 i. e., that the husband has no power to convey the wife's property 
 without her assent, not even the estate he has during coverture. Walsh 
 v. Young, 110 Mass. 396. 
 
 Co. Lit. 351 a; Babb v. Perley, 1 Me. 6; Melvin v. Proprietors, 16 
 Pick. 165; 1 Washburn on Real Prop. 329. 
 
 Co. Lit. 77a; Poole v. Longueville, 2 Saund. 283; Polybank v. Haw- 
 kins, Dougl. 314; Moore V. Vinten, 12 Sim. Ch. 164; Melvin v. Pro- 
 prietors, 16 Pick. 165; Cole v. Wolcottville Mfg. Co., 35 Conn. 178; Hall 
 r. Sayre, 10 B. Mon. 46; Babb v. Perley, 1 Me. 6; 2 Kent's Com. 131; 
 1 Washburn on Real Prop. 330. 
 
 - 1 Washburn on Real Prop. 333 ; Williams on Real Prop. 226, 227 ; 
 Millrr r. Snowman, 21 Me. 201; Bruce V. Wood, 1 Mete. 542; Cleary v. 
 McDowjill. 1 Cheves 139. 
 
 86
 
 CH. VIL] HUSBAND'S ESTATE DURING COVERTURE. 70 
 
 70. Husband's rights in equity. The foregoing statement 
 of the common law rights of the husband, in the real estate 
 of the wife, during coverture, were so far modified, after 
 the creation of the English Court of Chancery, that when- 
 ever the husband sought recourse to a court of equity, for 
 the enforcement of his common law rights in regard to his 
 wife's real estate, in the application of the more humane 
 principles which obtained in courts of chancery, the wife's 
 rights were also taken into consideration and she was held 
 entitled to a settlement, known as her "equity to a settle- 
 ment, 1 ' and the court compelled the husband to provide for 
 the maintenance and support of the wife and her children, 
 out of her property. 8 The common law powers of the hus- 
 band, in regard to his wife's property, being at war with 
 the equitable rights of a married woman, by an enlarge- 
 ment of her equitable right to a settlement out of her sepa- 
 rate estate, courts of equity finally came to a recognition of 
 her right to hold and enjoy property that was given her 
 for her exculsive use, free from the claims of her husband. 9 
 This equitable recognition of the rights of the married 
 woman, in regard to her separate estate, 10 with the progress 
 of our civilization, has finally resulted in her almost com- 
 plete emancipation, so far as her property rights are con- 
 cerned, by the various statutes of the United States, here- 
 after discussed. 11 
 
 82 Pom. Eq. Jur. 1114; 2 Story Eq. Jur. 1378; 2 Kent's Com. 162; 
 Kenny v. Udell, 5 Johns. Ch. 464. " In equity she has a separate ex- 
 istence from her husband, and on account thereof, she may have the 
 possession and ownership of property separate from her husband." 
 Boot r. Gooch, 97 Mo. 88, per Black, J. See also, Welch, Admr., v. 
 Welch, 63 Mo. 57. 
 
 o 1 Tiffany, Real Prop., Sec. 177, p. 413; Richardson v. DeGiverville, 
 107 Mo. 435; Williamson v. Yeager, 91 Ky. 282; 2 Kent's Com. 162; 
 2 Pom. Eq. Jur. 1114. 
 
 10 See post, Sec. 72. 
 
 npost, Sec. 74. 
 
 87
 
 72 HUSBAND'S ESTATE DURING COVERTURE. [PART i. 
 
 71. How husband's rights may be barred. His rights 
 during coverture are barred if the wife's inheritance is 
 forfeited for any cause; and he is divested of them by a 
 divorce a vinculo, and also by a statutory divorce, where it 
 is decreed for his fault. 12 
 
 72. How prevented from attaching. The husband 's mari- 
 tal rights will attach to all kinds of real property, both 
 legal and equitable, where there is no express prohibition or 
 release of the same. But equity very often treats a married 
 woman as if she were single, and will protect her property 
 against the claims of the husband, whenever it is expressly 
 provided by the donor that she should hold and enjoy the 
 land to her "sole" and "separate" use and free from the 
 control of her husband. And if there be no special trustee 
 appointed, equity will compel the husband and his privies 
 to hold the legal estate as trustees for the separate use of 
 the wife. 13 No particular forms of expression are required, 
 but the intention to exclude the husband's rights must be 
 clearly manifested, and for that purpose it is advisable to 
 append to the Jiabendum clause of the. deed the words "to 
 her sole and separate use," or others of a similar import. 14 
 
 12 Co. Lit. 351 a ; 1 Washburn on Real Prop. 330; Burt v. Hurlburt, 16 
 Vt. 292; Oldham v. Henderson, 5 Dana 257; Cizek v. Cizek (Neb. 1904), 
 96 N. W. Rep. 657, 99 ib. 28; Van Deet v. Devvitt, 200 111. 153, 65 N. E. 
 Rep. 677; Becklenberg v. Becklenberg, 102 111. App. 504; Whitton f. 
 Whitton (Eng. 1901), 71 Law J. 10, 85 Law T. 646; Page V. Page. 86 
 Law T. 638. The husband's right to his wife's property during 
 coverture also ends with the birth of a child of the marriage, when his 
 estate of courtesy attaches. 2 Kent's Com., 130; Tiffany, Real Prop.,. 
 Sec. 176, p. 412. 
 
 1 Washburn on Real Prop. 330; Williams on Real Prop. 224; Major 
 v. Lansley, 2 Russ. & Mylne, 355; Stuart r. Kissam, 3 Barb. 493; 
 Cochrane v. OTIern, 4 Watts &, S. 95; Heath v. Knapp. 4 Birr 228; 
 Shirley v. Shirley, 9 Paige 364; Blanchard v. Blood. 2 Barb. 352; Fear* 
 r. Brooks, 12 Ga. 195; Steele v. Steele, 1 Ired. Eq. 452; Knight v. Bell, 
 22 Ala. 198; Griffith r. Griffith, 5 B. Mon. 113; Long p. White, 5 J. J. 
 Marsh, 226; Richardson v. DeGiverville, 107 Mo. 435. 
 
 i*l Washburn on Real Prop. 331; Tritt V. Colwell, 31 Pa. St 228; 
 88
 
 CH. vii.] HUSBAND'S ESTATE DURING COVERTURE. 73 
 
 73. Restrictions upon alienation of wife's separate prop- 
 erty. According to the English rule of equity, the wife is so 
 far considered a feme sole that she has the power freely to 
 dispose of her separate property by joining with her trustee 
 in the deed of conveyance. 15 This English rule has been 
 followed in some of the States of this country, 16 while in 
 other States the contrary rule has been adopted that no 
 disposition of the wife's separate property can be made by 
 her or her husband, unless a power of disposition is expressly 
 granted to her. 17 In the latter States, therefore, the wife's 
 separate property is amply protected against the control 
 or influence of the husband. But in England, and in those 
 States which have adopted the English rule, he may still gain 
 control of her property by the exercise of his persuasive 
 
 Fears v. Brooks, 12 Ga. 195; Goodrum v. Goodrum, 8 Ired. Eq. 313; 
 Welch v. Welch, 14 Ala. 76; Kenny V. Udell, 5 Johns. Ch. 464; Books 
 t?. Gooch, 97 Mo. 88. See Tidd v. Lister, 17 Eng. Law & Eq. 560; s. c. 
 23 Id. 578. 
 
 "I Washburn on Real Prop. 331; Williams on Real Prop. 224, 
 Rawle's note; White v. Hulme, 1 Bro. C. C. 16; Brandon v. Robinson, 
 18 Ves. 434; Tullett r. Armstrong, 1 Beas. 1; Scarborough v. Borman, 
 76. 34. The statement in the text that the trustee must join in the 
 conveyance with the married woman is not true when the married wom- 
 an's separate estate is a passive use. It is only true when it is an 
 active use. For recent cases holding joinder of husband necessary in 
 conveyances of the wife of her statutory separate estate, see note to Sec. 
 74. See post, Sec. 348. 
 
 1(5 In Xesv Jersey, Connecticut, Kentucky, Ohio, North Carolina, Ala- 
 bama, Georgia, Missouri, Vermont and Maryland. Leaycraft v. Hedden, 
 4 N. J. Eq. 55; Imlay r. Huntington, 20 Conn. 175; Wooley, 10 B. Mon. 
 320; Feary t. Booth, 4 Am. Law Reg. (N. S.) 141, note; Frazier r. 
 Brownlow, 3 Ired. Eq. 237. In New York, the English rule formerly 
 prevailed. Dyett r. North American Coal Co., 20 Wend. 570. But now 
 the matter is regulated by local statute, and the wife's power over her 
 separate estate has been greatly restricted. Rogers v. Ludlow, 3 Sandf. 
 Ch. 104; Leggett V. Perkins, 2 N. Y. 297. See post, Sec. 348. 
 
 IT In Pennsylvania, Rhode Island, Virginia, South Carolina, Missis- 
 sippi, and Tennessee^ Wright t'. Brown, 8 Wright, 204; Metcalf v. 
 Cooke, 2 R. I. 355; Williamson v. Beekham, 8 Leigh 20; Ewing r. Smith, 
 3 DeSau. 417; Doty V. Mitchell, 9 Smed. & M. 447; Marshall V. Stephens, 
 H Humph. 159. See post, Sec. 348. 
 
 89
 
 74 HUSBAND'S ESTATE DURING COVERTURE. [PART i. 
 
 powers over her. In order to afford her complete protection, 
 it is permitted in those States to impose restrictions upon 
 her power to alien the estate or to anticipate the income 
 thereof. 18 
 
 74. Statutory changes in United States. The foregoing 
 paragraphs present the law as it obtains at common law 
 and in this country, in the absence of remedial statutes. 
 The common-law rights of the husband in the wife's prop- 
 erty during coverture, have been entirely taken away in some 
 of the States, the married woman being vested, by statutes, 
 with all the rights and capacities, in respect to her prop- 
 erty, of a single woman, while in other States they are more 
 or less modified and regulated by statute. 10 In the limited 
 space, which can be given to the subject, it is impossible to 
 give the law of each State in detail, as it has been modified 
 by statute. But the following brief and general statement 
 may be taken as reasonably accurate: In California, Colo- 
 rado, Dakota, Delaware, Florida, Illinois, Indiana, Iowa, 
 Kansas, Michigan, Mississippi, Minnesota, New Jersey, Ne- 
 vada, New York, Pennsylvania, South Carolina, Texas, and 
 Wisconsin, the common law estate during coverture has been 
 practically abolished, except that in Florida, Indiana, Mis- 
 sissippi, Minnesota, New Jersey, Nevada and Pennsylvania, 
 in order to convey her property, the husband must join in 
 the deed, and in Texas he is held to have the management of 
 her lands during coverture. In Alabama, Arkansas, Con- 
 necticut, Maryland, Missouri, Rhode Island, Tennessee and 
 Vermont, the common-law rights of the husband in his wife's 
 property have been more or less modified, the chief provision 
 being, that his creditors cannot levy upon it for his debts. 
 In New Hampshire and Ohio, all lands acquired by the wife 
 by devise, conveyance, or purchase with her own funds, shall 
 
 1 Washburn on Real Prop. 331; Williams on Real Prop. 225; cases 
 cited in notes (11, 12, 13). See also post, Sec. 348. 
 "See 1 Washburn on Real Prop. 335-341, note. 
 90
 
 en. vii.j HUSBAND'S ESTATE DURING COVERTURE. 74 
 
 be l.or separate property free from the common-law rights 
 of the husband, but she cannot convey her lands, without 
 joining with the husband. In California, Dakota, Nevada, 
 and Texas, the "partnership" theory of marriage, borrowed 
 from the civil or Roman law, and in force in Louisiana, has 
 been adopted, and a statute declares that all lands purchased 
 by the husband or wife with funds earned by their labor 
 shall be the common property of both, and one-half goes 
 to the heirs of each, or it may be conveyed away during his 
 or her lifetime, without the co-operation of the other. It 
 is evident from this brief synopsis, that an accurate knowl- 
 edge of the law of married women, in any given State, can 
 only be had by a careful study of the statutes and decisions 
 of that State. A general treatise of limited scope can only 
 give an outline of the subject. 20 
 
 20 See 1 Washburn on Real Prop. 335-41, note. In Arkansas (Rudd >'. 
 Peters, 41 Ark. 177), Illinois (Dean V. Bailey, 50 111. 481), Maine 
 (Stratton v. Bailey, 80 Me. 345), Missouri (Hach v. Hill, 106 Mo. 18), 
 and Wisconsin (Martin v. Remingtpn, 100 Wis. 540), the statutory 
 separate estate of a married woman has been held free from the debts 
 of her husband. 1 Tiffany, Real Prop., Sec. 178, p. 416. Husband must 
 join, in conveyances of the wife, in Indiana, Shipley v. Smith, 162 Ind. 
 526, 70 N. E. Rep. 803; and in North Carolina, Vann V. Edwards, 135 
 N. C. 661, 47 S. E. Rep. 784; Alabama, Young v. Sheldon, 36 So. Rep. 
 27; Kentucky, Deusch v. Questa, 76 S. W. Rep. 329; Louisiana, Caldwell 
 V. Trezevant, 111 La. 410, 35 So. Rep. 619; Texas, McAnulty v. Ellison, 
 71 S. VV. Rep. 670; Missouri, Peter v. Byrne, 175 Mo. 233, 75 S. W. Rep. 
 433. But see, Farmers Bank v. Hageluken, 165 Mo. 443, 65 S. VV. Rep. 
 728; Arkansas, Jones v. Hill, 70 Ark. 34, 66 S. VV. Rep. 194; and 
 Pennsylvania, Holliday v. Hively, 198 Pa. St. 335, 47 Atl. Rep. 988. 
 And in Missouri, as to land held as separate trust property, of the wife, 
 in which the trustee joins. Cadematori v. Gauger, 160 Mo. 352; 61 
 S. W. Rep. 195. 
 
 91
 
 SECTION II. 
 
 ESTATE BY CURTESY. 
 
 SECTION 75. Definition. 
 
 76. Marriage. 
 
 77. Estate of inheritance necessary in the wife. 
 
 78. Curtesy in fees determinable. 
 
 79. Curtesy in equitable estates. 
 
 80. Seisin in wife during coverture. 
 
 81. Curtesy in reversion. 
 
 82. Necessity of issue. 
 
 83. Liability for husband's debts. 
 
 84. How estate may be defeated. 
 
 75. Definition. An estate by the curtesy is a freehold 
 estate, limited by operation of law to the husband for life 
 in the lands and tenements of the wife, in which she was 
 seized of an estate of inheritance during coverture. The es- 
 tate by curtesy becomes initiate upon the birth of issue, 
 born alive and capable of inheriting the estate, and takes 
 effect in possession upon the death of the wife. 1 Until the 
 death of the wife, the husband cannot by reason of his curtesy 
 initiate make any claim to the land or to the rents and profits 
 which she receives therefrom. 2 It does not exist in Louisiana, 
 California, Indiana, Michigan, South Carolina, Georgia, 
 
 iCo. Lit. 30 a; 2 Bla. Com. 126; 1 Washburn on Real Prop. 163; 
 Williams on Real Prop. 227. 
 
 2 Moore u. Darby (Del.), 18 Atl. Rep. 768. The death of the wife is 
 an essential requisite before the husband's estate of curtesy attaches. 
 Guernsey v. Lazier, 51 W. Va. 328, 41 S. E. Rep. 405. 
 92
 
 CH. VII.] ESTATE BY CUETESY. 76 
 
 Kansas, Texas 3 and Illinois. 4 The requisites of the estate 
 by curtesy are: 1. Lawful marriage; 2. Seisin of wife dur- 
 ing coverture; 3. Birth of a living child in the life-time of 
 the wife; 4. The death of the wife. 
 
 76. Marriage. The marriage must be a lawful one. If 
 the marriage be void because of some illegality, curtesy 
 does not attach ; but if the marriage is only voidable, the hus- 
 band will have curtesy, unless it be actually declared void 
 during the life of the wife. 5 And in some of the States, a 
 
 3 1 Washburn on Real Prop. 164; Tong v. Marvin, 15 Mich. 73; Portis 
 r. Parker, 22 Texas 699. But it is either recognized by the courts, or 
 expressly given by statute, in the other States. Adair v. Lott, 3 Hill 
 186; Thurber v. Townshend, 22 N. Y. 517; Armstrong v. Wilson, 60 111. 
 226; Malone v. McLaurin, 40 Miss. 162; Morris v. Morris, 94 N. C. 613; 
 Luntz v. Greve, 102 Ind. 173. In South Carolina, it has been decided 
 that the statute of 1791 only abolished curtesy in fees simple; and 
 that it still exists in a fee conditional. Withers v. Jenkins, 14 S. C. 
 697; Gaffney v. Peeler, 21 S. C. 55; Frost v. Frost, 21 S. C. 501. The 
 position of the South Carolina court that curtesy in fees simple is 
 abolished, is based upon an erroneous construction of the act of 1791. 
 That act gave the husband the same interest in the lands and other 
 property of his deceased wife, as was given to the wife in her deceased 
 husband's property, that is, he was included in the Statute of Descent 
 as an heir of the wife. The court holds that the estate by curtesy was 
 impliedly abolished, whereas the proper construction is that he is put to 
 his election, and cannot take both the curtesy and the statutory pro- 
 vision. This construction is universally recognized and adopted in the 
 parallel case of the widow, who is entitled to dower and is also made 
 statutory heir. She may take her dower, but cannot take both. The 
 husband's right to possession, as tenant by curtesy, may be enforced by 
 ejectment. Towns t'. Towns, 121 Ala. 422, 25 So. Rep. 715; Gregg v. 
 Tesson, 1 Black. 150, 17 L. Ed. 74. But see Coquard v. Pearce, 68 
 Ark. 93. But before the death of the wife, the right of the husband 
 is not such an estate as will pass to trustees in bankruptcy. Haseltinp 
 r. Prince, 95 Fed. Rep. 802; Lynde v. McGregor, 13 Allen 182; 90 
 Amer. Dec. 188. Like other life tenants, a tenant by curtesy commits 
 waste, who cuts and sells trees on the land to which his estate attache?. 
 Learned t'. Ogden. 80 Miss. 769, 32 So. Rep. 278. 
 
 < Abolished in 1874 and a dower trust substituted therefor. Com. v. 
 O'Rear, 24 N. E. Rep. 956. 
 
 1 Washburn on Real Prop. 165. 
 
 93
 
 77 ESTATE BY CURTESY. [PART I. 
 
 dissolution of the marriage by decree of court at the suit 
 of the wife for the fault of the husband, will take away the 
 husband's estate by curtesy. 8 
 
 77. Estate of inheritance necessary in the wife. In order 
 that curtesy may attach, the estate of the wife must be a 
 freehold of inheritance, and no form of conveyance of a 
 common-law legal estate of inheritance can be devised by 
 which the husband may be deprived of his curtesy therein. 7 
 But the legal estate, of which the wife may be possessed 
 as trustee, is not subject to the husband's curtesy. 8 
 
 This is the law in Maine, Massachusetts, Vermont, Connecticut, New 
 York, Delaware, Indiana, Kentucky, Rhode Island, Arkansas, New 
 Hampshire. Missouri, Minnesota, Ohio, New Jersey, Illinois, Maryland. 
 1 Washburn on Real Prop. 309-12, note; Bishop's Mar. & Div., Sec. GG6; 
 1 Greenl. Cruise 150. See also Neff t?. Turkic, 4 Ohio Dec. 314. By 
 statute, in Illinois, the Chancellor granting the divorce is given full 
 discretion to " settle and adjust the property rights of the parties." 
 Heyman v. Heyman, 210 111. 524, 71 N. E. Rep. 591. In Missouri, the 
 guilty party forfeits all rights and claims by virtue of the marriage. 
 Schlemmer r. Schlemmer (1904), 81 S. W. Rep. 636. In Oregon, the 
 successful party in divorce is given one-third, in fee, in the lands of 
 the guilty party. Benfield r. Benfield, 44 Ore. 94, 74 Pac. Rep. 495. In 
 England, on divorce of the wife, the court has power to extinguish the 
 life estate of the husband in her land. Blood v. Blood (1902), 71 Law 
 J. 97, 86 Law T. 641; Kaye t\ Kaye (1902), 86 Law T. 638; Whitton 
 r. Whitton (1902), 71 Law J. 10, 85 Law T. 646. In Texas, neither 
 party can be divested of the title to real estate. Long r. Long (1902), 
 69 S. W. Rep. 428. A divorce was held to bar the curtesy of the 
 husband, in the following cases: Doyle v. Rolwing, 165 Mo. 231. 65 
 S \V. Rep. 315, 55 L. R. A. 332; Moran V. Somes, 154 Mass. 200, 28 
 N. E. Rep. 152; Clark v. Slaughter, 38 Miss. 64; Davis v. Davis, 68 
 N. C. 180. But see, Meecham v. Bunting, 156 111. 586, 41 N. E. Rep. 
 175, 28 L. R. A. 618, 47 Amer. St. Rep. 239. 
 
 'Mildmay's Case. 6 Rep. 41; Mullany v. Mullany, 4 N. J. Eq. 10; 
 Williams on Real Prop. 328; 1 Washburn on Real Prop. 169. A con- 
 tract of purchase does not give the wife such an " estate of inheritance." 
 as to entitle the husband to curtesy therein. Hall r. Crabb, 55 Xeb. 392, 
 
 8 Chew r. Commissioners, 5 Rawle, 160. And this is true, _ whether 
 
 s Chew r. Commissioners, 5 Kawle, 160. And this is true, whether 
 the trust is expressed or implied by law from the wife's contract, en- 
 94
 
 CH. VII.] ESTATE BY CURTESY. 79 
 
 78. Curtesy in fees determinable. In respect to the right 
 of curtesy in fees simple and fees tail, no question can 
 arise, as explained in a preceding paragraph. And the same 
 may be said of a fee conditional at common law, where such 
 an estate has not been converted by the statute de donis into 
 an estate tail. 9 If, however, the estate be a fee upon con- 
 dition, upon limitation, or a conditional limitation, some 
 difficulty is experienced in determining what effect the hap- 
 pening of the condition or contingency would have upon the 
 husband's curtesy. The following may be stated as the 
 prevailing rule: If the estate of the wife be one upon con- 
 dition or upon limitation, estates which take effect and are 
 determined according to the rules of the common law, and 
 the limitation over takes effect as common-law estates, as 
 in the case of a remainder after an estate upon limitation, 
 the husband's curtesy is defeated. 10 But, by a refinement 
 of distinction, which is difficult to comprehend, if the estate 
 be a fee determinable upon the happening of some future 
 event, and the limitation over be by way of executory de- 
 vise, or shifting use, or in other words a conditional limi- 
 tation, the estate by curtesy 'still exists, unaffected by the 
 happening of the contingency. 11 
 
 79. Curtesy in equitable estates. It was once held that 
 the husband was not entitled to curtesy out of the equi- 
 table estates of the wife. But it is now very generally con- 
 ceded that he has curtesy in all equitable as well as legal 
 
 tered into before marriage, to sell the land. Welsh v. Chandler, 13 B. 
 Mon. 431. 
 
 Odom v. Beverly (S. C.), 10 S. E. Rep. 835. 
 
 10 Co. Lit. 241, Butler's note, 70; 1 Washburn on Real Prop. 167, 168, 
 170. 
 
 n Buckworth v. Thirkell, 3 B. & P. 652; Moody v. King, 2 Bing. 447; 
 Hatfield v. Sneden, 54 N. Y. 285; Grant v. Townshend, 2 Hill 554; 
 Wright v. Herron, 6 Rich. Eq. 406; Martin r. Renaker (Ky.), 9 S. W. 
 Rep. 419; Webb v. Trustees, etc., Baptist Church (Ky.), 13 S. W. Rep. 
 362; 1 Washburn on Real Prop. 171, 172; Co. Lit. 241 a, Butler's note, 
 170; 4 Kent's Com. 33. See post, Sec. 99, note. 
 
 95
 
 79 ESTATE BY CURTESY. [PART I. 
 
 estates, and the same rules are applied to the former, which 
 obtain in the latter. For the foundation of the claim of 
 curtesy, the receipt by the wife of the rents and profits is 
 a sufficient seisin. 12 The husband has also curtesy in the 
 equity of redemption, where he and his wife joined in the 
 execution of the mortgage. 18 And this is true also, even of 
 those equitable estates which are granted to her sole and sepa- 
 rate use. 1 * But equitable estates will not be subject to the 
 right of curtesy. if the intention of the grantor, to exclude 
 the husband from such equitable estate, is clearly mani- 
 fested in the deed. 15 
 
 12 Kent's Com. 31; 1 Washburn on Real Prop. 165. 166; Watts v. Ball, 
 
 1 P. Wms. 109; Morgan v. Morgan, 5 Madd. 408; Sweetapple v. Bindon, 
 
 2 Vern. 537, note 3; Davis V. Mason, 1 Pet. 508; Hotighton v. Hapgood, 
 13 Pick. 154; Robinson V. Codman, 1 Sumn. 128; Dunscomb v. Dunscomb, 
 1 Johns. 508; Clepper V. Livergood, 5 Watts 113; Dubs v. Dubs, 31 Pa. 
 St. 154. In several of the States, notably Alabama, Kentucky, Mary- 
 land, Mississippi, and Virginia, curtesy is by statute made to attach 
 to equitable estates. 1 Greenl. Cruise, 157. 
 
 is Robinson v. Lakenan, 28 Mo. App. 135; Mettler v. Miller, 129 111. 
 630. 
 
 i* Tillinghast v. Coggeshall, 7 R. I. 383; Nightengale v. Hidden, 76. 
 115; Sartill v. Robeson, 2 Jones Eq. 510; Carter V. Dale, 3 Lea, 710; 
 31 Am. Rep. 660. But see Moore V. Webster, L. R. 23 Eq. 267. Apple- 
 ton V. Rowley, L. R. 8 Eq. 139; Carson v. Fuhs, 131 Pa. St. 256, and 
 succeeding note. Curtesy attaches to the equitable estate of the wife 
 in Rhode Island, under a void deed from her husband. Ball v. Ball, 
 20 R. I. 520, 40 Atl. Rep. 234, distinguishing, Sayers v. Wall, 26 Gratt. 
 354 ; Deming V. Williams, 26 Conn. 226, 68 Amer. Dec. 386 ; Whitten r. 
 Whitten, 3 Cush. 191. Property granted to a married woman, in North 
 Carolina and Missouri, free and clear of any claim of her husband, 
 gives her the land free from his curtesy. Tiddy v. Graves. 126 N. C. 
 620, 36 S. E. Rep. 127. McBreen v. McBreen, 154 Mo. 323, 55 S. W. 
 Rep. 463. Husband's curtesy does not attach to wife's separate estate, 
 in Tennessee. Bingham r. Weller (1904), 81 S. W. Rep. 843. Or in Vir- 
 ginia, Ratcliff t?. Ratcliff (1904), 102 Va. 880, 47 S. E. Rep. 1007. 
 The husband has no curtesy in the equitable separate estate of the wife, 
 in Virginia, in the absence of a reservation thereof at his wife's death. 
 Jones r. Jones, 96 Va. 749, 32 S. E. Rep. 463. 
 
 "Carter v. Dale, 3 Lea 710; 31 Am. Law Rep. 660; Stokes v. Mc- 
 Kibbin, 18 Pa. St. 207; Cochran v. O'Hern, 4 Watts & S. 95; Rigler r. 
 96
 
 ESTATE BY CURTESY. 80 
 
 80. Seisin in wife during coverture. Another requisite 
 of the estate of curtesy is, that the wife must be seised of 
 the estate during coverture; and if divorce is obtained be- 
 fore the wife's acquisition of the seisin, he cannot claim 
 curtesy in such property, because she would not in that case 
 have had the seisin during coverture. 16 The actual seisin 
 was required at common law, but at the present day, in 
 this country, all that is required is legal seisin, which is a 
 present right to the possession. But adverse possession will 
 preclude the husband's right of curtesy, if the seisin is not 
 regained during coverture. In the absence of such adverse 
 possession, actual possession is not required. 17 In England, 
 in the case of the descent of lands upon the wife, an entry 
 by the husband during coverture is necessary to support 
 his right of curtesy. But it is the general rule in this coun- 
 try, that actual entry is not required, 18 and in Pennsyl- 
 
 Cloud, 14 Pa. St. 361; Clark v. Clark, 14 Barb. 582; Pool v. Blaikie, 
 53 111. 495; Hearle v. Greenback, 3 Atk. 716; Bennett V. Davis, 2 P. 
 Wins. 316; 1 Washburn on Real Prop. 165-169. 
 
 i Schult f. Moll, 10 N. Y. S. 703. 
 
 IT Kent's Com. 30 n ; Davis v. Mason, 1 Pet. 506; Jackson V. Sellick, 
 8 Johns. 262; Den v. Demarest, 1 N. J. L. 525; Ellsworth v. Cook, 8 
 Paige Ch. 640; Jackson V. Johnson, 5 Cow. 74; Bar V. Galloway, 1 Mc- 
 Lean, 476; Pierce v. Wanett, 10 Ired. 446; Mercer V. Selden, 1 How, 37; 
 McCorry r. King's Heirs, 3 Humph. 267; Neeley v. Butler, 10 B. Mon. 
 48; Stinebaugh v. Wisdom, 13 B. Mon. 467; Mettler v. Miller (111. 
 1890), 22 N. E. Rep. 529; Barker v. Oakwood, 49 Hun, 416. 
 
 is Co. Lit. 29 a; 1 Washburn on Real Prop. 173, 174; Adair v. Lott, 
 Hill, 182; Jackson v. Johnson, 5 Cow. 74; Chew v. Commissioners, 5 
 Rawle, 160; Day V. Cochrane, 24 Miss. 261; Stephens v. Hume, 25 Mo. 
 349; Harvey v. Wichman, 23 76. 115; Carr v. Givens, 9 Bush. 679; c. 8. 
 15 Am. Rep. 147. Mr. Tiffany, in his recent excellent work, on Real 
 Property, takes the position that actual seisin in the wife is not an 
 essential of the estate by curtesy, (Tiffany, Real Prop., Sec. 205, p. 
 488) and he cites, as an authority, the opinion of Judge Scott, in Raume 
 v. Chambers (22 Mo. p. 54.) However the question may be decided 
 elsewhere, this opinion has long ceased to be the law in Missouri, where 
 the text is followed and seisin in the wife, either in law or fact, is held 
 to be an essential prerequisite to an estate by curtesy. Martin V. Trail, 
 142 Mo. p. 95; Cox v. Boyce, 152 Mo. p. 581; Dozier v. Toalson, 180 
 
 7 97
 
 SI ESTATE BY CURTESY. [PART I. 
 
 vania, Ohio, and Connecticut, adverse possession does not 
 necessitate an actual entry. 19 If the lands are in possession 
 of a co-tenant in a tenancy in common, the wife is deemed 
 sufficiently seized in order to give the husband curtesy, and 
 such would also be the case, where a tenant for years or at 
 sufferance has possession by lease from the wife. The ten- 
 ant in such a case holds the actual seisin or possession as a 
 quasi bailee of the reversioner. 20 
 
 81. Curtesy in reversion. But if the estate of the wife be 
 a reversion or a remainder, supported and preceded by a 
 particular freehold estate, she will not have such a present 
 right to the possession, as to give her husband curtesy, un- 
 less the prior freehold is determined during coverture, and 
 this, too, though the husband is the tenant of the prior free- 
 hold. 21 The husband in such cases can only have curtesy, 
 when during coverture, the particular freehold is determined 
 or is merged in the reversion by coming into the same 
 hands. 22 
 
 Mo. 546. Actual seisin of the wife is necessary to an estate by curtesy, 
 in West Virginia. Jones V. Thorn, 45 W. V. 186, 32 S. E. Rep. 173. 
 And also in Pennsylvania, Keller v. Lamb, 10 Kulp, 246. And Ten- 
 nessee, Waller v. Martin, 106 Tenn. 341, 61 S. W. Rep. 73. 
 
 i Stool foos r. Jenkins, 8 Serg. & R. 175; Bush r. Bradley, 4 Day, 
 298; Kline v. Beebe, 6 Conn. 494. Contra, Mercer's Lessee v. Selden, 
 1 How. 154. 
 
 20DeGray v. Richardson, 3 Atk. 469; Green v. Liter, 8 Cranch, 245; 
 Wass V. Bucknam, 35 Me. 360; Taylor v. Gould, 10 Barb. 388; Jackson 
 r. Johnson, 5 Cow. 74; Carter v. Williams, 8 Ired. Eq. 177; Powell v. 
 Gossom, 18 B. Mon. 179; Vanarsdall v. Fauntleroy, 7 B. Mon. 401; Day 
 T. Cochrane, 24 Miss. 261. 
 
 21 Stoddard r. Gibbs, 1 Sumn. 263; Furguson v. Tweedy, 43 N. Y. 543; 
 Orford v. Benton, 86 N. H. 395; Malone f. McLaurin, 40 Miss. 163; 
 Planter's Bank r. Davis, 31 Ala. 633; Doe v. Rivers, 9 T. R. 272; Web- 
 ster V. Ellsworth (Mass.), 18 N. E. Rep. 569. 
 
 22 1 Washburn on Real Prop. 175-178; Doe r. Scuddamore, 2 B. & P> 
 294; Plunket t'. Holmes, 1 Lev. 11; 1 Cruise Dig. 149. Since 1887, in 
 Ohio, the husband has curtesy in land to which his wife had an estate 
 in remainder, where she died before the life tenant. Moore r. lies, 10- 
 Ohio C. C. 591, 9 Ohio C. D. 418. 
 
 98
 
 CH. VII.] ESTATE BY CURTESY. 83 
 
 82. Necessity of issue. The estate by curtesy is by the 
 theory of the law only a continuance of the wife's estate of 
 inheritance, and is supposed to be intrusted to him during 
 life for the benefit of the wife's issue. It is therefore neces- 
 sary by the common law, that the wife should have issue born 
 alive, who can take the inheritance as heir to the wife. A 
 female child in the case of a tail male would not satisfy this 
 requirement. 23 His right becomes initiate upon the birth 
 of the child, and attaches and vests in possession, whether 
 it was born before or after the acquisition of the estate ; and, 
 provided it was born alive, its death any time would not 
 affect the husband's right of curtesy. 24 In Pennsylvania, 
 by statute, the birth of a child is not necessary. 25 The issue 
 must not only be born alive and capable of inheriting the 
 estate, but it must also at common law have been born dur- 
 ing the life-time of the mother. The birth of the child after 
 her death, by means of the Caesarian operation, would not 
 give the husband curtesy. 26 
 
 83. Liability for husband's debts. As soon as the right 
 becomes initiate by the birth of the child as well as after 
 it is consummate, it may be subjected to the satisfaction of 
 the husband's debts and can be sold under a levy of execu- 
 
 23 Co. Lit. 29 b; 1 Washburn on Real Prop. 178; Williams on Real 
 Prop. 228; Heath v. White, 5 Conn. 228; Day v. Cochrane, 24 Miss. 261. 
 
 242 Bla. Com. 128; 1 Washburn on Real Prop. 179; Comer r. Cham- 
 berlin, 6 Allen, 166; Jackson v. Johnson, 5 Cow. 74; Guion v. Anderson, 
 8 Humph. 307; Martin v. Renaker (Ky.), 9 S. W. Rep. 419. The hus- 
 band's right of curtesy, upon birth of a child by him, takes precedence 
 to any claim by descent of a son of the wife by a prior marriage. Heath 
 r. \\ liite, 5 Conn. 236. The law is different in Michigan by statute. 
 Hathorn v, Lyon, 2 Mich. 93. 
 
 2'' Williams on Real Prop. 228, Rawle's note; Dubs v. Dubs, 31 Pa. St. 
 154 ; Lancester Co. Bank v. Stauffer, 19 Pa. St. 398. 
 
 20 1 Washburn on Real Prop. 179; Co. Lit. 29 b; 1 Greenl. Cruise. 143, 
 note; Marsellis r. Thalheimer, 2 Paige Ch. 42. The birth of issue, as a 
 condition precedent to the attaching of curtesy, is abolished, by statute in 
 West Virginia. Alderson v. Alderson, 46 W. Va. 242, 33 S. E. Rep. 228. 
 
 99
 
 84 ESTATE BY CURTESY. [PART L 
 
 tion.- 7 Equity will not interfere in behalf of the wife or 
 children. 28 It can be conveyed by the husband independently 
 of the wife's conveyance of her estate in the land. 29 
 
 84. How estate may be defeated. The statutory divorce 
 as has been seen, will defeat the husband's right of curtesy, 
 where it is granted for his fault. 30 In Pennsylvania it is 
 also provided by statute that if the husband unjustifiably 
 deserts his wife for a year preceding her death, he shall for- 
 feit his claim of curtesy. 31 So, likewise, the acceptance of a 
 testamentary provision which was made for him in the place 
 of the curtesy, will bar the curtes. , 82 It was also the rule 
 at common law that a feoffment in : 3e by the husband would 
 destroy his tenancy by curtesy. But although the same rule 
 is now enforced in this country in regard to feoffments, 
 wherever they still obtain, and it is not changed by statute, 
 yet the ordinary conveyance is held to transfer only what 
 the grantor has, and will not work a forfeiture of his actual 
 estate. 33 In a preceding section it has been stated that in 
 
 27 Mattocks v. Stearns, 9 Vt. 326; Litchfield v. Cudworth, 15 Pick. 
 23; Van Duzer V. Van Duzer, 6 Paige 366; Day v. Cochrane, 24 Miss. 
 261; Bozarth v. Largent, 128 111. 95. But see Harvey V. Wickham, 23 
 Mo. 112; Welsh v. Solenberger, 8 S. E. Rep. 91. During coverture, the 
 husband's estate of curtesy, cannot be sold for his debts in Missouri. 
 Ball v. Woolfolk, 175 Mo. 378, 75 S. W. Rep. 410. The husband's rights 
 to rents from his wife's lands is superior to that of a judgment credi- 
 tor of the wife, although the land could have been sold, during the 
 lifetime of the wife. Hampton v. Cook, 64 Ark. 353, 42 S. W. Rep. 535. 
 But see, Shaddingle V. Fisher, 2 0. C. D. 381. The estate by curtesy 
 entitles the husband to royalties from a mine, opened after the wife's 
 death. Bubb v. Bubb, 201 Pa. St. 212; Alderson v. Alderson, 46 W. 
 Va. 242, 33 S. E. Rep. 228; Kier V. Peterson, 41 Pa. 357; Priddy v. 
 Griffith, 150 111. 560. But see, Bond v. Ring, 99 Va. 564, 39 S. E. 
 Rep. 216. 
 
 28 Van Duzer v. Van Duzer, 6 Paige 366. 
 2Mettler v. Miller (111.), 22 N. E. Rep. 529. 
 so See ante, Sec. 76. 
 
 31 Bealor v. Hahn, 122 Pa. St. 242. 
 
 32 Beirne's Ex'rs V. Von Ahlefeldt, 33 W. Va. 563. 
 
 as French v. Rollins, 21 Me. 372; Flagg v. Bean, 25 N. H. 63; Den- 
 100
 
 CH. VII.] ESTATE BY CURTESY. 84 
 
 a number of the States, statutes have been passed, which 
 enable a married woman to hold property as free from mar- 
 ital rights, as if she were single. In New York, where the 
 change was first made, it has been held that the common- 
 law right to curtesy still exists, but it may be defeated by 
 the conveyance of the wife during coverture. 34 But it seems 
 that under the New York statute, the tenancy by the curtesy 
 vests only where the land remains undisposed of by deed 
 or by will. A devise of the lands would therefore defeat 
 the tenancy. 35 But this doctrine is not always followed 
 elsewhere, the curtesy being held to attach, notwithstand- 
 ing the married woman is given the power to dispose of her 
 lands by deed or by will. The power so granted to her is 
 presumed to be exercised subject to the husband's curtesy. 30 
 
 nett v. Dennett, 40 N. H. 505 ; McKee v. Pfont, 3 Ball. 486 ; Munneslyn 
 V. Munneslyn, 2 Brev. 2; Meramec V. Caldwell, 8 B. Mon. 32; Baykin r. 
 Rain, 28 Ala. 332 ; Miller v. Miller, Meigs 484. 
 
 s* Clark v. Clark, 24 Barb. 581; Thruber v. Townshend, 22 N. Y. 517. 
 
 35 See Burke v. Valentine, 52 Barb. 412; Scott V. Guernsey, 60 Barb. 
 163; Rider v. Hulse, 24 N. Y. 372, N. B. 75. 
 
 seCooke's Appeal, 132 Pa. St. 533. A husband who qualifies as 
 executor under his wife's will, is denied curtesy, when inconsistent 
 with a devise in the will. Tiddy v. Graves, 126 N. C. 620, 36 S. E. Rep. 
 127, 37 Id. 513. 
 
 101
 
 SECTION III. 
 
 DOWER. 
 
 SECTION- 85. Dower defined and explained. 
 
 86. To what estates dower attaches. 
 
 87. Dower in equitable estates. 
 
 88. Dower in lands of trustee. 
 
 89. Dower in mortgages. 
 
 90. Dower in proceeds of sale. 
 
 91. Seisin required in the husband during coverture. 
 
 92. Continued Defeasible or determinable seisin. 
 
 93. Duration of the seisin. 
 
 94. Instantaneous seisin. 
 
 95. Marriage must be legal. 
 
 96. How dower may be lost or barred by act of the husband. 
 
 97. Continued By wife's release during coverture. 
 
 98. Continued By elopement and divorce. 
 
 99. Continued By loss of husband's seisin. 
 
 100. Continued By estoppel in pais. 
 
 101. Continued By statute of limitations. 
 
 102. Continued By exercise of eminent domain. 
 
 103. Widow's quarantine. 
 
 104. Assignment Two modes. 
 
 105. Continued Of common right. 
 
 106. Dower against common right. 
 
 107. By whom may dower be assigned. 
 
 108. Remedies for recovery of dower. 
 
 109. Demand necessary. 
 
 110. Against whom and where the action is brought. 
 
 111. Continued Abatement by death of widow. 
 
 112. Judgment, what it contains. 
 
 113. Continued Damages, when recoverable. 
 
 114. Continued Assignment after judgment. 
 
 115. Assignment Where two or more widows claim dower. 
 
 116. Decree of sum of money in lieu of dower. 
 
 117. Dower barred by jointure. 
 
 118. Continued By testamentary provision. 
 
 119. Continued By statutory provision for inheritance. 
 102
 
 CH. VII.] DOWER. 85 
 
 85. Dower defined and explained. Dower is that interest 
 or estate which is provided by the law for the widow out of 
 the real property of the husband. 1 At common law, and 
 generally in this country, it is an estate for life in one-third 
 of his lands, tenements, and hereditaments. 2 During cover- 
 ture, her interest, though an incumbrance, is but an in- 
 choate right, which she can neither assign, release, nor ex- 
 tinguish, except by joining in the deed of her husband, as 
 explained later on. It cannot at this stage be considered 
 even a chose in action; and it is not affected by any ad- 
 verse possession until the death of the husband, when her 
 right of action accrues and the statute of limitation begins 
 to run against her; although such possession is sufficient to 
 bar the husband's interest in the land. 3 Upon the death of 
 
 i2 Bla. Com. 132; Scribner Dower 114, 147; Park Dower 10, 32; Co. 
 Lit. 31 a; 1 Cruise's Dig. 13. 
 
 22 Bla. Com. 180; Co. Lit. 30 a ; 1 Washburn on Real Prop. 187-189; 
 Moore v. New York, 8 N. Y. 110; Reaume v. Chambers, 22 Mo. 36. In 
 some of the States, the widow has one-third in fee, instead of for life, 
 while in others it is enlarged to one-half, but except in respect to 
 quantity, the estate has the same general qualities throughout the 
 United States. See Burk r. Barren, 8 Iowa 134; Lucas v. Sawyer, 17 
 Iowa 519; Wilds v. Toms, 123 Iowa 747, 99 N. W. Rep. 700; Sturgis r. 
 Ewing, 18 111. 176; Noel r. Ewing, 9 Ind. 37; Gaylord r. Dodge, 13 
 Ind. 47. In Louisiana and California, the widow has one-half of all 
 the common property of her husband. Beard r. Knox, 5 Cal. 252. And, 
 although there are statutes in a number of the States giving the widow 
 an interest in the personal, as well as the real property of the husband, 
 dower technically can only be had out of real estate of inheritance as 
 above stated. Dow v. Dow, 36 Me. 211; see post, Sec. 86. 
 
 s Durham r. Angier, 20 Me. 242 ; Moore v. Frost, 3 N. H. 127 ; Gun- 
 nison r. Twitchell, 38 N. H. 68; Learned V. Cutler, 18 Pick. 9; Moore 
 V. New York, 8 N. Y. 110; McArthur v. Franklin, 16 Ohio St. 200; 
 Miller r. Pence (111.), 23 N. E. Rep. 1030; Williams v. Williams (Ky.), 
 12 S. W. Rep. 760; Winters v. DeTurk, 25 W. N. C. 511, 19 Atl. Rep. 
 354. And it is so far an interest in the land, that if the renunciation 
 of her dower right has been obtained by fraud of her husband, with 
 knowledge of the purchaser, the wife may avoid the deed in respect to 
 her inchoate dower right. Somar r. Canady, 58 N. Y. 298, 13 Am. 
 Rep. 523; Buzick v. Buzick, 44 Iowa 259, 24 N. W. Rep. 740; White 
 
 103
 
 85 DOWEI:. [PART i. 
 
 the husband, the wife surviving, the right becomes con- 
 summate; it is then a chose in action which entitles her to 
 have certain of her husband's lands set out to her. She 
 has not yet an estate, simply a consummate right to an 
 estate, which she can assign in equity, and release at com- 
 mon law to one in possession, but which was incapable of 
 assignment at common law, like all other choses in action. 4 
 
 r. Graves, 107 Mass. 325, 9 Am. Rep. 38. In Towa, the widow is en- 
 titled to a third of her husband's lands. Wild v. Toms, 123 Iowa 747, 
 99 N. W. Rep. 700. This is also the rule in Missouri (Phillipps V. 
 Hardenburg, 181 Mo. 463, 80 S. W. Rep. 891), and Georgia (McDonald 
 r. McDonald, 120 Ga. 403, 47 S. E. Rep. 918) ; Indiana (Helt v. Kelt, 
 152 Ind. 142, 52 N. E. Rep. 699) ; Kentucky, Anderson v. Fitzpa trick 
 (49 S. W. Rep. 786) and all of the United States, where the common 
 law obtains. Dower is barred by adverse possession, for the statutory 
 period, in Michigan. Butcher v. Butcher (1904), 100 N. W. Rep. 604. 
 Also, in Missouri, Harrison t>. McReynolds, 183 Mo. 533, 82 S. W. Rep. 
 120; New York, Wetyen v. Pick, 178 N. Y. 223, 70 N. E. Rep. 497. 
 But see, Lucas v. Whitacre (Iowa 1903), 96 N. W. Rep. 776; Grober 
 . Clements, 71 Ark. 565, 76 S. W. Rep. 555; Brumback V. Brumback, 
 198 111. 66, 64 N. E. Rep. 741; Sill V. Sill, 185 111. 594, 57 N. E. Rep. 
 812. Barred, in Kentucky, under fifteen year statute. Winchester v. 
 Keith, 70 S. W. Rep. 664. 
 
 * Johnson r. Shields, 32 Me. 424; Hoxsie v. Ellis, 4 R. I. 123; Lund 
 v. Woods, 11 Mete. 566; Croade V. Ingraham, 13 Pick. 33; Jackson v. 
 Vanderheyden, 17 Johns. 167; Cox V. Jagger, 2 Cow. 651; Stewart v. 
 McMartin, 5 Barb. 438; Harrison V. Wood, 1 Dev. & B. Eq. 437; Salt- 
 marsh v. Smith, 32 Ala. 404; Strong v. Bragg, 7 Blackf. 63; Torrey V. 
 Minor, 1 Smed. & M. Ch. 489; Shield v. Batts, 5 J. J. Marsh. 12; 
 Stewart v. Chadwick, 8 Iowa 463; Brown v. Meredith, 2 Keen, 527; 
 Corey v. The People, 45 Barb. 265. And likewise the dower right before 
 assignment cannot be sold under attachment or execution. Rausch r. 
 Moore, 48 Iowa 611, 30 Am. Rep. 412; Brown v. Meredith, 2 Keen 
 527; Gooch v. Atkins, 14 Mass. 378; Green v. Putnam, 1 Barb. 500; 
 Saltmarsh v. Smith, 38 Ala. 404. In Vermont and Connecticut she is 
 held to have an estate in common with the heirs from the death of her 
 husband. Dummerston v. Newfane, 37 Vt. 13; Wooster V. Hunt's Ly- 
 man Iron Co., 38 Conn. 257. And her interest before assignment is 
 sufficiently vested to enable her to secure an injunction against the in- 
 fliction of injuries on the property by the heir, or by any other person, 
 whether he is a stranger to the land or the tenant of the freehold. 
 Shepard v. Manhattan Ry. Co., 57 N. Y. Super. 5. In Alabama and 
 104
 
 CH. VII.] DOWER. 85 
 
 It only becomes an estate in the lands, when it has been 
 set out to her. The act of setting out the dower is called 
 the assignment of dower. From this time on, she has a life 
 estate, with all the rights, incidents, and disabilities, which 
 pertain to that class of estates. 5 In some of the States, the 
 wife holds her dower subject to the claims of her husband's 
 creditors, but as a general rule her dower right takes pre- 
 cedence to such claims. And because of this difference in 
 
 Indiana she has such an interest in the land, as that it may be assigned 
 before it has been set out. Powell v. Powell, 10 Ala. 900; Strong V. 
 Clem, 12 Ind. 37. And even when the dower right before assignment 
 cannot in law be conveyed, except by way of release to the tenant of 
 the freehold, a conveyance or assignment to a stranger will be valid in 
 equity, and the assignee may bring the action for assignment in the 
 name of the widow. Robie v. Flanders, 33 N. H. 524; Lamar i\ Scott, 
 3 Rich. Eq. 516; Potter v. Everitt, 7 Ired. Eq. 152; Powell V. Powell, 
 10 Ala. 900; Bray V. Conrad (Mo.), 13 S. W. Rep. 957; Serry v. Curry, 
 26 Neb. 353. She can also mortgage her dower right before assign- 
 ment. Mut. L. Ins. Co. v. Shipman, 119 N. Y. 324; overruling s. c. 
 50 Hun. 578. 
 
 s Windham v. Portland, 4 Mass. 384; Jones V. Brewer, 2 Pick. 314; 
 Powell v. Monson, 3 Mason, 368; Lawrence v. Brown, 5 N. Y. 394; 
 Andrews V. Andrews, 14 N. J. L. 141; Norwood v. Marrow, 4 Dev. & 
 B. 442; Sotton V. Burrows, 2 Murph. 79; Thompson v. Stacy, 10 Yerg. 
 423. As soon as judgment has been entered up, she may release or 
 transfer the estate. Leavitt V. Lamprey, 13 Pick. 382. Serry v. Curry, 
 26 Neb. 853. And when the habere facias has been issued, she may en- 
 ter upon the land. Co. Lit. 37 b, n ; Parker V. Parker, 17 Pick. 236; 
 Evans V. Webb, 4 Yeats 424. But if the assignment is subsequently set 
 aside, she may be treated as a disseizor or trespasser from the time of 
 her entry. 4 Kent's Com. 61; Hildreth V. Thompson, 16 Mass. 191; 
 Jackson v. O'Donaghy, 7 Johns. 247; Sharply V. Jones, 5 Harr. 373; 
 McCully v. Smith, 2 Bail. 103. After it is set out to her, she holds 
 her dower land of her husband, and not of the heir or tenant. It is 
 not the grant of the heir, and the grant by the heir of the dower land 
 after her death, incorporated in the deed of assignment, is a grant of 
 the reversion and not of a technical remainder. Baker v. Baker, 4 
 Me. 67; Conant v. Little, 1 Pick. 189; Adams v. Butts, 9 Conn. 7!); 
 Lawrence v. Brown, 5 N. Y. 394. 
 
 A judicial sale, for the debts of the husband, does not bar dower, in 
 Nebraska. Martin f. Abbott, 95 N. W. Rep. 356; or Ohio, Jewett v. 
 Feldheiser, 67 N. E. Rep. 1072; or Missouri, Duke v. Brandt, 51 Mo. 221. 
 
 105
 
 86 Do\vi..i. [PART i. 
 
 the character of the widow's estate, her estate as dowress will 
 not merge into the estate in reversion which she may acquire 
 by inheritance from her son if it should prove to be against 
 her wishes and her interests. 7 
 
 S 86. In what estates she has dower. The widow has dower 
 in all freehold estates of inheritance, which her issue, if 
 any, could have inherited as heir of the husband, and of 
 which he was seised during coverture. It therefore includes 
 everything that is comprehended under the terms lands, tene- 
 ments, and hereditaments, corporeal and incorporeal. 8 The 
 
 When it is stated that in some of the States the dower right is sub- 
 ject to the claim of creditors, it is meant that a judicial sale for debt 
 will bar the wife's dower right, and, it being inchoate, she cannot pro- 
 tect it. Kirke v. Dean, 2 Binn. 347; Reed v. Morrison. 12 Serg. & R. 
 18; Lozear v. Porter, 87 Pa. St. 513, 30 Am. Rep. 380; Taylor r. Migh- 
 berger, 65 Iowa 134. But it will not be barred by the assignment for 
 benefit of creditors, or by sale in bankruptcy. Keller r. Michael, 2 
 Yeates 300; Eberle V. Fisher, 13 Pa. St. 520; Lozear v. Porter, 87 Pa. 
 St. 513, 30 Am. Rep. 380; Bryar's Appeal, 111 Pa. St. 81. But the 
 general rule is, that it cannot in any manner be barred by a sale for 
 debts. Stinson V. Sumner, 9 Mass. 149; Griffin v. Reeee, 1 Harr. 508; 
 Lewis r. Coxe, 5 Harr. 403; Hinchman f. Stiles, 10 N. .1. Eq. 361; 
 Coombs f. Young, 4 Yerg. 218; Sisk v. Smith, 6 111. 503; Davis V. 
 Townsend (S. C.), 10 S. E. Rep. 837. But if the land is under attach- 
 ment before marriage, a sale of it will defeat the wife's dower. Brown 
 f. Williams, 31 Me. 303; Sanford v. McLean, 3 Paige 117; Shiell t;. 
 Sloan, 22 S. C. 151. 
 
 7 Appeal of Fink, 25 W. N. C. 78, 18 Atl. Rep. 621. A merger of 
 the widow's dower does not occur, when she acquires quit claim deeds 
 from all the heirs, as a contrary intent would be presumed from the 
 fact that a continuance of the lesser estate would be beneficial to the 
 widow. Wettlaufer V. Ames (Mich. 1903), 94 N. W. Rep. 950. But see 
 Kreamer . Fleming, 191 Pa. St. 534, 43 Atl. Rep. 388, 44 W. N. C. 201; 
 Copeland V. Burkett (Tenn.), 45 S. W. Rep. 533. 
 
 2 Bla. Com. 131; Co. Lit. 40 a ; 1 Washburn on Real Prop. 194-1!).-). 
 Dower may be claimed out of rents and other incorporeal hereditaments, 
 except annuities not issuing out of land. Co. Lit. 32 a ; 2 Bla. Com. 
 132; Aubin V. Daly, 4 B. & Aid. 59; Chase's Case, 1 Bland 227; 4 
 Kent's Com. 401. But the incorporeal hereditament, like corporeal 
 hereditaments, must be an estate of inheritance. 1 Washburn on Real 
 Prop. 210; Stoughton V. Leigh, 1 Taunt. 410; Weir v. Tate, 4 I red. Eq. 
 106
 
 CH. VII.] DOWER. 86 
 
 widow's claim for dower will in nowise be affected by the 
 source of the consideration paid for the land, though it con- 
 sisted of money wrongfully taken from her own property, 
 during her insanity, and which the guardian requires to be 
 returned. The return of the money is not inconsistent with 
 her claim of dower. 9 She has no dower in estates per auter 
 vie, or for years, except where these estates, or certain, of 
 them, are given by statute, the incidents and characteristics 
 of freehold estates of inheritance. 10 On the other hand, 
 while the wife has dower in lands which the husband holds 
 as tenant in tail, as she has in any other estate of inheritance, 
 of which he is seised during coverture, and which attaches 
 
 264 ; Chase's Case, 1 Bland 228. She has dower in the crops planted by 
 her husband, and growing at his decease. 1 Washburn on Real Prop. 
 211; Ralston v. Ralston, 3 Green (Iowa) 533. In Massachusetts, she is 
 not dowable in wild lands. Conner r. Shepherd, 15 Mass. 164. But in 
 the other States, since the tenant for life has a right to clear wild lands, 
 in order to make them available for use, the widow is granted her 
 own dower in such land. 4 Kent's Com. 76; Hastings V. Cruckleton, 3 
 Yeates 261; Findlay t?. Smith, 6 Munf. 134; Ballentine V. Payner, 2 
 Hayw. 110; Owen v. Hyde, 6 Yer. 334; Alexander v. Fisher, 7 Ala. 514. 
 See ante, Sec. 62. She is likewise dowable in the mines, which were 
 opened and worked by her husband. Lenfers v. Henke, 73 111. 405, 24 
 Am. Rep. 263; Hendrix . McBeth, 61 Ind. 473, 28 Am. Rep. 680. There 
 is no dower in a burial lot. Price r. Price, 54 Hun 349. In Missouri, 
 a wife is not restricted to estates of inheritance, but also has dower in 
 leasehold estates. Phillipps r. Hardenburg, 181 Mo. 463, 80 S. W. 
 Rep. 891. In Georgia, dower extends to any lands of which the hus- 
 band died seised or possessed, but not to lands under an agreement 
 of purchase, on which nothing had been paid. McDonald v. McDonald, 
 120 Ga. 403, 47 S. E. Rep. 918. 
 
 Rannells f. Isgrigg, 99 Mo. 19. 
 
 loGillis v. Brown, 5 Cow. 388; Spangler v. Spangler, 1 Md. Ch. 36; 
 Fisher v. Grimes, 1 Smed. & M. Ch. 107; Ware v. Washington, 6 Smed. 
 .V M. 737; Burris V. Page, 12 Mo. 358; 1 Washburn on Real Prop. 194, 
 1 !>">; Whitmire V. Wright. 22 S. C. 446. But see Goodwin r. Goodwin, 33 
 C'onn. 314, which holds that the widow has no dower out of an estate 
 for 999 years, although the statute converts this leasehold into an es- 
 tntc of inheritance. Concerning estates per auter vie, see ante, Sec. 47; 
 and in respect to leaseholds made estates of inheritance, see post, Sec. 
 128. Phillipps v. Hardenburg, 181 Mo. 463, 80 S. W. Rep. 891. 
 
 . 107
 
 86 DOWER. [PART i. 
 
 although he may die without heirs capable of taking the es- 
 tate, yet if the character of the estate tail is changed by 
 statute, so that the interest of the tenant in tail is reduced 
 to a life estate, with a remainder in the heirs of his body, 
 his wife cannot claim dower in such an estate. 11 The in- 
 heritance must also be a continuous and entire one. The 
 interposition of a freehold estate between the husband's es- 
 tate in possession and his reversion or remainder in fee will 
 prevent the wife's dower from attaching. It can only at- 
 tach when the interposed freehold terminates during cover- 
 ture. 12 For still stronger reasons she cannot claim dower 
 in her husband's reversions and remainders, where the pre- 
 ceding estate is a freehold. 13 And so, also, where her hus- 
 band's estate is a conditional limitation. 14 Nor can she for 
 
 " Trumbull v. Trumbull, 149 Mass. 200. 
 
 12 Lewis Bowie's Case, 11 Rep. 80; Crump V. Norwood, 7 Taunt. 362; 
 Brooks v. Everett, 13 Allen 458; Blood v. Blood, 23 Pick. 80; Robinson 
 v. Codman, 1 Summ. 130; Dunham v. Osborne, 1 Paige 634; Shoemaker 
 v. Walker, 2 Serg. & R. 556; Arnold v. Arnold, 8 B. Mon. 202; 3 Kent's 
 Com. 39; 1 Washburn on Real Prop. 195. If the interposed estate be 
 one for years, it will not affect the dower right, since the entire seizen is 
 in the husband. Bates v. Bates, 1 Ld. Raym. 326; Hitchens v. Kitchens, 
 2 Vern. 403. According to the early common law, a contingent re- 
 mainder would be defeated by the coming together of the reversion 
 and the life estate in one person. It was then held that the widow 
 would have dower, notwithstanding the interposed contingent remainder. 
 Hooker v. Hooker, Ca. Temp. 13; Purefoy v. Rogers, 2 Saund. 380. But 
 the contingent remainder cannot now be defeated by merger of the life 
 estate in the reversion. 1 Washburn on Real Prop. 197; Williams on 
 Real Prop. 281, 282. The wife has no dower in future estates, in 
 Rhode Island. Sammis v. Sammis, 51 Atl. Rep. 105. See, also, Stewart 
 v. Crysler, 65 N. Y. S. 483, 52 App. Div. 597; Young V. Morehead, 04 
 Ky. 608, 23 S. W. Rep. 511; Hill v. Pike, 174 Mass. 582, 55 N. E. 
 Rep. 324; Warren v. Williams, 25 Mo. App. 22; Houston V. Smith, 88 
 N. C. 312. 
 
 is See post, Sec. 294. 
 
 n Bush v. Bush, 5 Del. ch. 144. 
 
 131 Washburn on Real Prop. 198; Co. Lit. 37 b; Duncomb v. Dun- 
 comb, 3 Lev. 437; Maybury r. Brien, 15 Pet. 21; Babbitt v. Day, 41 N. 
 J, Eq. 392. See post, Sees. 176, 179. 
 108
 
 CII. VII.] DOWER. 86 
 
 the same reason have dower in lands, which her husband 
 holds in joint tenancy, until the tenancy has been terminated 
 by partition or by the death of the other tenant. 15 But the 
 estate of a tenant in common is subject to dower; the dower 
 attaches to the husband's undivided interest in the land be- 
 fore partition, and afterwards to the share set out to him. 115 
 Estates held by a partnership for partnership purposes are 
 also subject to dower; but the dower is subordinate to the 
 demands that might be made by partnership creditors against 
 the partnership property. 17 In Michigan it is provided by 
 statute that the wives of non-resident landowners cannot 
 
 il Washburn on Real Prop. 199; Reynard V. Spence, 4 Beav. 103; 
 Potter v. Wheeler, 13 Mass. 504; Totten V. Stuyvesant, 3 Edw. Ch. 500; 
 Wilkinson t'. Parish, 3 Paige 653; Lloyd v. Conover, 25 N. J. L. 48; 
 Baker v. Leibert, 125 Pa. St. 106. In Iowa, the wife's dower is barred 
 by partition in consequence of a statute which confines her dower to 
 estates which "had not been sold on execution or on any other judicial 
 sale." Williams v. Wescott, 77 Iowa 332. 
 
 " Burnside v. Merrick, 4 Mete. 537 ; Dyer v. Clark, 5 Mete. 562 ; 
 Smith v. Jackson, 2 Edw. Ch. 28; Coster v. Clark, 3 Edw. Ch. 428; 
 Hawley v. James, 5 Paige 451; Goodburn v. Stevens, 1 Md. Ch. 437; 
 Pierce V. Trigg, 10 Leigh 406; Sumner v. Hampson, 8 Harr. 328; 
 Woolridge r. Wilkins, 3 How. (Miss.) 372; Bopp v. Fox, 63 111. 540; 
 Duhring v. Duhring, 20 Mo. 174. But in order that the claims of the 
 creditors may take precedence to the widow's dower in respect to the 
 land held by two or more, the land must be in truth the property of 
 the partnership. The character of their joint estate is determined en- 
 tirely by their intention, and it is possible for partners to hold real 
 estate as tenants in common, without its becoming partnership prop- 
 erty. In such a case, the widow takes her dower free from the claims 
 of creditors. Wheatley r. Calhoun, 12 Leigh 264 ; Markham v. Merrett, 
 8 How. (Miss.) 437; Hale v. Plummer, 6 Ind. 121. There is no dower 
 in partnership realty, until all creditors are paid and partners' equities 
 are adjusted. Hauptmann v. Hauptmann, 86 N. Y. S. 427, 91 App. 
 Div. 197; Riddell r. Riddell, 85 Hun. 482, 33 N. Y. 99; Woodward- 
 Homes Co. r. Mudd, 27 L. R. A. 340; Holten v. Guinn, 95 Fed. Rep. 450; 
 Welch v. McKenzie, 66 Ark. 251, 50 S. W. Rep. 505; Ferris v. Van In- 
 gen, 110 Ga. 102, 35 S. E. Rep. 347; Davidson v. Richmond, 69 S. W. 
 Rep. 794; Sparger v. Mooro. 117 N. C. 449, 23 S. E. Rep. 359. The 
 wife is not endowed, in Michigan, as to land deeded to a third party, 
 under contract of purchase, to guarantee payment of the purchase price. 
 
 109
 
 87 DOWER. [PART i. 
 
 claim dower in lands which they have sold and conveyed 
 during their non-residence. 18 
 
 87. lower in equitable estates. According to the "early 
 English law there was no dower in equitable estates, and 
 the Statute of Uses expressly excepte.d the estates executed 
 by it 'from the claims of dower. 19 But at present, in Eng- 
 land, and generally in this country, the widow is entitled to 
 dower in all classes of equitable, as well as legal, estates. 20 In 
 the same manner now, she has dower in the husband's equity 
 of redemption, which gives her the right of one, who is in- 
 
 Stephens v. Leonard, 80 N. W. Rep. 1002. See, also, Kager v. Bren- 
 neman, 62 N. Y. S. 339, 47 App. Div. 63; Hendrickson v. Grable, 157 
 Mo. 42, 57 S. W. Rep. 784. 
 
 is Bear t?. Stahl, 61 Mich. 203. An alien widow of a resident land- 
 owner was held entitled to dower, in Missouri. Stokes v. O'Fallasey, 
 2 Mo. 32. See also, Davis v. Darrow, 12 Wend. (N. Y.) 65. 
 
 10 1 Washburn on Real Prop. 202, 203; 4 Kent's Com. 43; 1 Spence 
 Eq. Jur. 501; Dixon v. Saville, 1 Bro. C. C. 326; D'Arcy v. Blake, 2 Sch. 
 & Lef . 387 ; Maybury V. Brien, 15 Pet. 38 ; Hamlin v. Hamlin, 19 Me. 
 141. 
 
 zoHawley V. James, 5 Paige 318; Dubs v. Dubs, 31 Pa. St. 151; 
 Shoemaker v. Walker, 2 Serg. & R. 554 ; Rowton t? . Rowton, 1 Hen. & M. 
 92; Thompson v. Thompson, 1 Jones (X. C. ) Eq. 430; Dawson v. Mor- 
 ton, 6 Dana 471, 3 Stew. & P. 447; Clapp V. Galloway, 56 Mich. 272. 
 Contra, Hamlin v. Hamlin, 19 Me. 141; Stelle v. Carroll, 12 Pet. 201. 
 In Iowa, a widow is not dowable in lands held by her husband under a 
 preemption right. Bowers v. Keesecker, 14 Iowa 301. But in several 
 of the States it has been held that the widow has dower in lands which 
 her husband had contracted to purchase, where he died before the deed 
 was delivered. Church v. Church, 3 Sandf. Ch. 434; Smiley v. Wright, 
 2 Ohio 512; Robinson v. Miller, 1 B. Mon. 93; Davenport v. Farrar, 2 
 111. 314; Reed v. Whitney, 7 Gray 533; Lobdell V. Hayes, 4 Allen 187; 
 Joseph v. Fisher, 122 Ind. 399; Young v. Young, 45 N. J. Eq. 27; 
 Bowen V. Brockenbrough, 119 Ind. 560; see contra, Morgan V. Smith, 
 25 S. C. 337; Morgan v. Wright, 25 S. C. 601. But if the contract 
 of sale rests upon a condition precedent, which was not performed by 
 the husband, the wife's dower does not attach. Walters V. Walters 
 (111.), 23 N. E. Rep. 1120; Beebe f. Lyle, 73 Mich. 114. In some of 
 the States the old English rule still prevails, that dower cannot be had 
 in equitable estates. See cases cited supra. 
 110
 
 CH. VII.] DOWER. 88 
 
 terested in the mortgaged property, subject to the mort- 
 gage. 21 
 
 88. Dower in lands of trustee. The wife has no dower in 
 lands which her husband holds as trustee, except so far as 
 he may at the same time have an equitable interest therein. 
 And this rule is applied to every kind of trust, whether ex- 
 press or implied, as for example, where the husband, be- 
 
 21 Smith v. Eustis, 7 Me. 41; Young v. Tarbell, 37 Me. 509; Moore r. 
 Esty, 5 N. H. 479; Eaton v. Simonds, 14 Pick. 98; Fay v. Cheney, 14 
 Pick. 399; Farvvell v. Getting, 8 Allen 211; Savage v. Dooley, 28 Conn. 
 411; Hitchcock v. Harrington, 6 Johns. 290; Jackson f. Dewitt, G Cow. 
 316; Collins i: Torry, 7 Johns. 278; Montgomery v. Bruere, 5 N. J. L. 
 265; Stopplebein v. Shulte, 1 Hill (S. C-), 200; Heth v. Cocke, 1 Rand. 
 344; Mclver r. Cherry, 8 Humph. 712; Whitehead v. Middleton, 2 How. 
 (Miss.) 692; Taylor v. Fowler, 18 Ohio 567; Taylor v. McCrackin, 2 
 Blackf. 262; Mayburg r. Brien, 15 Pet. 38; Burrall r. Hurd, 61 Mich. 
 608; Burrall r. Clark, 61 Mich. 624; N. Y. Life Ins. Co. v. Mayer, 14 
 Daly 318; Mandell v. McClave, 46 Ohio St. 407; Burnet v. Burnet (N. 
 J.), 18 Atl. Rep. 374. See contra, In re Thompson's Estate, 6 Mackey 
 536. If the mortgage is foreclosed, her right of dower is defeated. 
 Stow 17. Tifft, 15 Johns. 458; Frost v. Peacock, 4 Edw. Ch. 678; Reed 
 V. Morrison, 12 Serg. & R. 18; Elder v. Robbin, 122 Ind. 203; Seibert 
 V. Todd, 31 S. C. 206. On the other hand, if the mortgage is satisfied 
 by one who is under a primary liability to pay it off, the dower right 
 attaches to the property free from the mortgage ; but if the heir or 
 purchaser pays the mortgage to prevent foreclosure, in order that the 
 widow may claim a proportionate benefit from the satisfaction of the 
 mortgage, she must contribute her share towards the expenses. Smith 
 r. Stephens, 164 Mo. 415, 64 S. W. Rep. 260; Hatch v. Palmer, 58 Me. 
 292; Simonton r. Gray, 34 Me. 50; Hinds v. Ballou, 44 N. H. 619; 
 Ballard r. Bowers, 10 N. H. 500; McCade r. Swap, 14 Allen 118; 
 Toomey r. McLean, 105 Mass 122; Wedge v. Moore, 6 Cush. 8; Collins 
 v. Torrey, 7 Johns. 278; Coats v. Cheever, 1 Cow. 400; Hitchcock r. Har- 
 rington, 6 Johns. 290; Matthewson v. Smith, 1 R. I. 22; Klinck r. Keek- 
 ley, 2 Hill Ch. 250; Carter v. Goodin, 3 Ohio St. 75; Bank of Com- 
 merce f. Owens, 31 Md. 320, 1 Am. Rep. 60; Noffts v. Ross, 29 111. 
 Bpp. Ml; Everson r. McMullen, 113 N. Y. 293. Where the dower right 
 is subject to the mortgage, and the mortgagee is in possession, the action 
 for dower cannot be instituted until the mortgage has been redeemed. 
 A suit for redemption must precede the assignment of dower. Smith r. 
 Kn>tK 7 Me. 41; Richardson r. Skolfield, 45 Me. 386; Cass r. Martin, 
 6 N. II. 25; Van Daync v. Thayer, 14 Wend. 233. 
 
 Ill
 
 90 DOWER. [PART i. 
 
 fore marriage, has entered into a contract for the sale of 
 the land. 22 
 
 89. Dower in mortgage. The mortgagee's wife has no 
 dower in the mortgaged premises until foreclosure. This is 
 true both in law and equity; under the common law, as well 
 as under the modern lien theory of mortgages. 23 And this 
 is true, although the deed of conveyance, which was delivered 
 as a mortgage, appears on its face to be an absolute con- 
 veyance. The judgment of the court that this deed was a 
 mortgage would bar the wife's dower, although she was not 
 made a party to the action. 24 
 
 90. Dower in proceeds of sale. Whenever it is necessary 
 for the settlement of varied interests in lands, of which she 
 is dowable, that the lands should be sold, her dower right will 
 follow and attach to the share in the proceeds of the sale, to 
 which her husband would have been entitled. This is gen- 
 erally true, for whatever cause the land might have been 
 sold. 25 But it has been held that she is not entitled to dower 
 
 22 4 Kent's Com. 43, 46 ; Coster v. Clarke, 4 Edw. Ch. 429 ; Prescott v. 
 Walker, 16 N. H. 343; Hopkinson v. Dumas, 42 N. H. 303; Brooks V. 
 Everett, 13 Allen 458; Dean V. Mitchell, 4 J. J. Marsh 475; Cooper v. 
 Whitney, 3 Hill 97 ; Cowman V. Hall, 3 Gill & J. 398 ; Bartlett v. Gouge, 
 5 B. Mon. 152; Robinson v. Codman, 1 Sumn. 129; Brown V. Cave, 23 
 S. C. 251; Walker v. Rand (111.), 22 N. E. Rep. 1006; Hunkins V. Hun- 
 kins (N. H.), 18 Atl. Rep. 655. A wife acquires no right of dower in 
 lands, held by her husband, as trustee only. Miller v. Miller, 148 
 Mo. 13, 49 S. W. Rep. 852. See also, Park Dower, 100. 
 
 23 4 Kent's Com. 43 ; 1 Washburn on Real Prop. 204 ; Foster V. Dwinel, 
 49 Me. 44; Crittenden V. Johnson, 6 Eng. (Ark.) 44. 
 
 2-* Lea V. Woods, 66 Iowa 304. A widow endowed of mortgaged land, 
 in Missouri, is chargeable with that proportion of the mortgaged land, 
 which her dower would bear to the whole mortgaged tract. Smith 
 v. Stephens, 164 Mo. 415, 64 S. W. Rep. 260. 
 
 25 Jennison v. Hapgood, 14 Pick. 345 ; Van Vronker v. Eastman, 7 
 Mete. 157; Hawley v. Bradford, 9 Paige 200; Titus v. Neilson, 5 Johns. 
 Ch. 452; Church v. Church, 3 Sandf. Ch. 434; Smith v. Jackson, 3 Edvv. 
 Ch. 28; Bank of Commerce V. Owens, 31 Md. 320, s. c. 1 Am. Rep. 60; 
 Keith v. Trapier, 1 Bailey Eq. 63; Pifer v. Ward, 8 Blackf. 252; Harts- 
 112
 
 CH. VII.] DOWER. 91 
 
 in the surplus of the proceeds of sale of the land in fore- 
 closure of a mortgage in which she has renounced her dower. 
 That is, she is not entitled to a share in such surplus, where 
 the foreclosure and sale took place during the life of her 
 husband. 20 The sale must in any case be had at the in- 
 stance of some third party, in order that the widow may 
 make claim to her share in the proceeds. She has not the 
 right to take the initiative in procuring the sale of the land. 
 The creditors or other claimants against the land must do 
 that. 27 If, however, the widow's dower has precedence over 
 the claims of those who are demanding a sale of the lands, 
 she may refuse to take a share of the proceeds of rale in 
 the place of her dower, and in that case her dower must be 
 assigned to her of common right, before the land is offered 
 for sale in satisfaction of the claims of the other. 28 But if 
 the widow permits the land to be sold pending an appeal 
 from an order, adjudging her not entitled to dower in the 
 land, the title of the purchaser under order of the court re- 
 mains unaffected by a reversal of a decree of the court be- 
 low, and the widow's dower right is transferred from the 
 land to the proceeds of sale. 29 
 
 91. Seisin required in the husband during coverture. In 
 order that the dower can attach, the husband must be 
 seised of an estate of inheritance during coverture. But for 
 
 home V. Hartshorne, 2 N. J. Eq. 349 ; Naxareth Inst. V. Lowe, 1 B. Mon. 
 257; Wiliett v. Beatty, 12 B. Mon. 172; Crane v. Palmer, 8 Blackf. 120; 
 Chancy v. Chaney, 38 Ala. 35; Bonner v. Peterson, 43 111. 258; Thomp- 
 son v. Cochran, 7 Humph. 72; Williams v. Woods, Humph. 408; 
 Schmitt v. Willis, 40 N. J. Eq. 515; N. Y. Life Ins. Co. v. Mayor, 14 
 Daly 318. But see Newhall v. Five Cents Savings Bank, 101 Mass. 
 428, 3 Am. Rep. 387. 
 
 28Genobles v. West, 23 S. C. 154; see contra N. Y. Life Ins. Co. v. 
 Mayer, 14 Daly 318; see Kauffman v. Peacock, 115 111. 212. 
 
 27 Hull v. Hull, 26 W. Va. 1. 
 
 2Kilbreth V. Root's Adm'r, 33 W. Va. 600; Hart v. Burch, 130 111. 
 426. 
 
 2 Jeffries t;. Allen (S. C.), 10 S. E. Rep. 764. 
 
 8 113
 
 Jf i2 DOWER. [PART i. 
 
 this purpose it is not necessary that the husband should 
 have the actual corporeal seisin. Seisin in law, with a pres- 
 ent right to actual, seisin, would be sufficient. 30 But dis- 
 seisin, resulting from adverse possession or from any other 
 cause beginning before, and continuing during, coverture, 
 will prevent dower from attaching. The dower can only 
 take effect when the seisin has been recovered by the hus- 
 band during coverture. 31 A mere right of entry, as in the 
 case of the breach of the condition in an estate upon con- 
 dition, is not sufficient. 82 
 
 92. Continued Defeasible or determinable seisin. Pos- 
 session by the husband, of the premises, is prima facie evi- 
 dence of lawful seisin, although it may be defeasible. As 
 long as possession is retained and except as against the true 
 owner, the widow is Entitled to dower in the same manner as 
 if the seisin had been lawful and indefeasible. And the 
 rule is the same with qualified or determinable fees. The 
 widow's dower attaches, subject to all the conditions which 
 are attached to the husband's estate, and is destroyed only 
 by the determination of the fee in the hands of the hus- 
 band or his assigns. 33 Nor, in the case of an unlawful or 
 
 302 Bla. Com. 129, 131; Co. Lit. 31 a; Mann v. Edson, 39 Me. 25; 
 Atwood v. Atwood, 22 Pick. 283; Dunham V. Osborne, 1 Paige 635; 
 Thompson v. Thompson, 10 Ired. 133; Mclntyre v. Costelle, 47 Hun 
 289 ; Park Dower, 24 ; Scribner Dower, 265. No seisin or possession is 
 essential in the husband, to endow the wife in his lands, in Missouri, by 
 statute. Bartlett f. Tinsley, 175 Mo. 319, 75 S. W. Rep. 143. See also, 
 Thomas V. Thomas, 32 N. C. 123; Barnes v. Roper, 90 N. C. 189. 
 
 31 1 Washburn on Real Prop. 216; Small V. Proctor, 15 Mass. 495; 
 Thompson v. Thompson, 1 Jones (N. C.) 431. 
 
 32 Thompson 17. Thompson, 1 Jones (N. C.) 431; 1 Washburn on Real 
 Prop. 216. 
 
 331 Washburn on Real Prop. 218; Co. Lit. 241, note 4; Lewis v. 
 Meserve, 61 Me. 374; Mann v. Edson, 39 Me. 25; Knight V. Mains, 12 
 Me. 41; Moore V. Esty, 5 N. H. 479; Carpenter v. Weeks, 2 Hill 341; 
 Griggs v. Smith, 12 N. J. L. 22; Thompson f. Thompson, 1 Jones 
 (N. C.) 431; Torrance v. Carbey, 27 Miss. 697; Firestone v. Firestone, 
 2 Ohio St. 415; Gordon V. Dickinson (111.), 23 N. E. Rep. 439; Beck- 
 
 114
 
 CH. VII.] DOWER. 94 
 
 defeasible seisin, can the wife's claim for dower be re- 
 sisted by the claim of the husband's grantee that he had 
 no lawful seisin, unless the same defense could be raised 
 by the same parties against the husband. 34 
 
 93. Duration of the seisin. No length of time is required 
 for the seisin to be in the husband, in order that the wife's 
 right of dower may attach, provided it is in him for his own 
 use and benefit. The vesting of the seisin in law in him 
 for an instant of time is sufficient. 35 
 
 94. Instantaneous seisin. But if the seisin in the hus- 
 band is instantaneous, and it was not intended that he 
 should acquire the beneficial interest therein, and he serves 
 .only as a means of passing the seisin to another, the wife 
 will not be entitled to dower. Not the duration, but the 
 character and purposes of the seisin, determine the wife's 
 right of dower therein. It, therefore, does not matter 
 whether the transactions, which effect a conveyance of the 
 seisin through the husband, are instantaneous, or are sepa- 
 rate in point of time of execution, provided the subsequent 
 conveyance out of .the husband is in pursuance of an agree- 
 
 with v. Beckvvith, 61 Mich. 316; Burrall V. Hurd, 61 Mich. 608; Burrall 
 V. Clark, 61 Mich. 024; Lake V. Nolan (Mich.), 45 N. W. Rep. 376. 
 
 34 Kimball v. Kimball, 2 Me. 226 ; Bolster v. Cushman, 34 Me. 428 ; 
 Hitchcock v. Carpenter, 9 Johns. 344; Bancroft V. White, 1 Cains 185 1 
 Ward v. Fuller, 15 Pick. 185; Osterhout v. Shoemaker, 3 Hill 419; Hale 
 r. Munn, 4 Gray 132; Browne v. Potter, 17 Wend.* 164; Thompson v. 
 Boyd, 2 X. J. L. 543; Gammon v. Freeman, 31 Me. 243; Wedge v. 
 Moore, 6 Cush. 8; Pledger v. Ellerbe, 6 Rich. L. 266; Gale v. Price, 5 
 Rich. 525; Griffith v. Griffith, 5 Harr. 5; Montgomery v. Bruere, 5 N. 
 J. L. 265; Hugley V. Gregg, 4 Dana 68; May v. Tillman, 1 Mich. 262; 
 Crittenden v. Woodruff, 6 Eng. ( Ark. ) 82 ; Taylor's Case, 9 Johns. 293 ; 
 Douglas r. Dickson, 11 Rich. L. 417; Stimpson v. Thomaston Bk., 28 
 Me. 259; Stark v. Hopson, 30 S. C. 370. 
 
 32 Bla. Com. 182; 1 Washburn on Real Prop. 218, 219; Broughton 
 v. Randall, Cro. Eliz. 503; Gage r. Ward, 25 Me. 101; McCauley t>. 
 Grimes, 2 Gill & J. 318; Douglass v. Dickson, 11 Rich. L. 417; McClure 
 r. Harris, 12 B. Mon. 291 ; Mclntyre r. Costello, 47 Hun 289. 
 
 115
 
 95 DOWER. [PART i. 
 
 nient forming a part of the original transaction ; in both 
 eases the wife will not have dower. 80 The most common 
 instance of instantaneous seisin, without attachment of 
 dower thereto, is a conveyance of lands to the husband with 
 a mortgage for purchase money to the grantor, executed at 
 the same time, or subsequently, in pursuance of a con- 
 temporaneous agreement. 37 
 
 95. Marriage must be legal. Like estates by the curtesy, 
 the wife has dower only when the marriage is a legal one. 
 If the marriage is absolutely void, she has no claim for 
 dower; but if it is only voidable, she has dower, unless the 
 marriage has been declared void during the lifetime of the 
 
 302 Bla. Com. 132; 1 Washburn on Real Prop. 219, 223; Maybury V. 
 Brien, 15 Pet. 39; Moore v. Rollins, 45 Me. 494; Hazelton V. Lesure, 9 
 Allen 24; King v. Stetson, 11 Allen 408; Hinds v. Ballou, 44 N. H. 620; 
 Stow f. Tifft, 15 Johns. 462; Kittle V. Van Dyck, 1 Sandf. Ch. 76; Mc- 
 Cauley r. Grimes, 2 Gill & J. 318; Wooldridge v. Wilkins, 3 How. 
 (Miss.) 369; Mills v. Van Voorhis, 23 Barb. 135; Griggs V. Smith, 12 
 N. J. L. 22; Wheatley v. Calhoun, 12 Leigh 262; Reed V. Morrison, 12 
 Serg. & R. 18; Dimond v. Billingslea, 2 Har. & G. 264; Klinck V. 
 Keckeley, 2 Hill Ch. 250; Boynton V. Sawyer, 35 Ala. 497; Stevens V. 
 Smith, 4 J. J. Marsh. 64; Gully v. Ray, 18 B. Mon. 107; Stephens 
 f. Leonard, 80 N. W. Rep. 1002; Kager V. Brenneman, 62 N. Y. S. 339, 
 47 App. JMv. 63; Hendrickson v. Grable, 157 Mo. 42, 57 S. W. Rep. 784. 
 
 ST Bullard v. Bowers, 10 N. H. 500 ; Moore V. Rollins, 45 Me. 493 ; 
 Young v. Tarbell, 37 Me. 509 ; Strong V. Converse, 8 Allen 559 ; Hinds 
 r. Ballou, 44 N. H. 620; Stow v. Tifft, 15 Johns. 458; Mills v. Van Voor- 
 his, 23 Barb. 125; Reed v. Morrison, 12 Serg. & R. 18; Bogie v. Rut- 
 ledge, 1 Bay 312; -Henagon V. Harllee, 10 Rich. Eq. 285; Chase's Case, 
 
 1 Bland. 206; McClure v. Harris, 12 B. Mon. 261; Klinck v. Keekley, 2 
 Hill Ch. 250; Sheldon v. Hofnagle, 51 Hun 478; Stewart v. Smith, 36 
 Minn. 82. And in the same manner, in those States where the vendor's 
 lien for the purchase-money is recognized, the widow of the purchaser 
 takes her dower subject to the lien. Hugunin V. Cochrane, 51 111. 302, 
 
 2 Am. Rep. 303; Warner v. Van Alstyne, 3 Paige 513; Ellicott v. Welch, 
 2 Bland. 242; Miller v. Stump, 3 Gill, 304; McClure V. Harris, 12 
 B. Mon. 261; Crane v. Palmer, 8 Blackf. 120; Thompson V. Cochrane, 
 7 Humph. 72; Stephens v. Leonard, 80 N. W. Rep. 1002; Hendrickson 
 r. Grable, 157 Mo. 42, 57 S. W. Rep. 784. 
 
 116
 
 CH. VII.] DOWER. 96 
 
 husband. 38 In determining the legality of the marriage in 
 questions of dower, as a general rule, the question will be 
 determined by the lex loci contractus, and not by the lex 
 loci rei sitce. 3g 
 
 96. How dower may be lost or barred By act of the hus- 
 band. At common law the husband could not, by any act 
 during coverture, defeat the wife's right of dower, or pre- 
 vent its attachment to the property by having inserted in the 
 deed to himself a clause, to the effect that the land should be 
 held by him free from the claim of dower, 40 not even where 
 the land is mortgaged during the pendency of an action for 
 divorce, and where the mortgage was given to secure the 
 alimony which had been decreed to the wife. 41 Nor can the 
 wife's dower be defeated by a secret conveyance of the prop- 
 erty by the husband before and on the eve of the marriage. 42 
 But an exception was made in equity in respect to the equita- 
 ble interest the husband, as vendee under the theory of im- 
 plied trusts, acquires in the land under the contract of sale, 
 and before the delivery of the deed ; whereby a release of his 
 right to specific performance will bar her right of dower 
 therein. 43 And in a number of the States it is now provided 
 
 882 Bla. Com. 130; Co. Lit. 33 a; Bishop's Mar. & Div., Sec. 177. 
 See Jenkins V. Jenkins, 2 Dana 102; Donnelly v. Donnelly, 8 B. Mon. 
 113; Higgins v. Breen, 9 Mo. 497; DeFrance v. Johnson, 26 Fed. Rep. 
 891. A marriage between uncle and niece, being inhibited by statute 
 the niece cannot take dower thereunder. Mclllvain v. Scheibley (Ky.), 
 59 S. W. Rep. 498. 
 
 8 Smith v. Smith, 52 N. J. L. 207. 
 
 *o 1 Washburn on Real Prop. 244, 255 ; Swaine v. Ferine. 5 Johns. Ch. 
 482; Norwood v. Marrow, 4 Dev. & B. 442; Runke v. Hanna, 6 Ind. 
 20. And not even will the destruction of the deed before recording 
 defeat the wife's dower in the estate, as against those who have notice. 
 Johnson v. Miller, 40 Ind. 376, 17 Am. Rep. 699. 
 
 41 Rea v. Rea, 63 Mich. 257. 
 
 42 Jones v. Jones, 64 Wis. 301; Lake r. Nolan (Mich.), 45 N. VV. 
 Rep. 376. 
 
 42Herron v. Williamson, Litt. Sel. Cas. 250; 1 Washburn on Real 
 Prop. 224, 225. And this is also the case, where the husband causes the 
 
 117
 
 97 DOWER. [PART i. 
 
 by statute that the widow shall be dowable only in the lands 
 of which her husband dies seised. Under these statutes a 
 bona fide conveyance by the husband during coverture will 
 defeat his wife's dower, as effectually, as under similar stat- 
 utes the wife may by conveyance during coverture defeat the 
 husband's right of curtesy. 44 
 
 97. Continued By wife's release during coverture. 
 The wife has, however, always had the power to bar her right 
 of dower by joining with her husband in the conveyance of 
 the land. Formerly, in England, it was barred by means of 
 fines and recoveries. 45 But now, in England, and in this 
 country generally, it is regulated by statute, and by joining 
 in the deed of the husband in the manner prescribed by stat- 
 ute, she may release her dower. The requisites of the deed 
 and of her acknowledgment of its execution vary with the 
 terms of each statute. 46 But whatever might be the statutory 
 
 deed to be made to a third party instead of himself. Lobdell v. Hayes, 4 
 Allen 187; Steele V. Magie, 48 111. 396; Heed v. Ford, 16 B. M. 114; 
 Gully v. Ray, 18 B.'Mon. 107; Welsh v. Buckings, 9 Ohio St. 331; Blake- 
 ney v. Ferguson, 20 Ark. 547. But if the contract of sale has been 
 performed by the "husband, and nothing more is to be done than to 
 execute and deliver the deed, and the husband then dies, as has been 
 already stated, the widow has dower in the premises, and can enforce 
 it against the vendor. See ante, Sec. 87, note. 
 
 <* Jenny V. Jenny, 24 Vt. 324; McGee v. McGee, 4 Ired. 105; Brewer 
 v. Connell, 11 Humph. 500; 1 Washburn on Real Prop. 268, note. See 
 Atkins v. Atkins, 18 Neb. 474. On setting aside a fraudulent convey- 
 ance made by the husband the wife's dower interest attaches to such 
 land. Bradshaw v. Halpin, 180 Mo. 666, 79 S. W. Rep. 685. The hus- 
 band's contract of sale does not effect the wife's dower right, as she 
 could only be affected, by a joinder in such contract. Rankin v. Rankin, 
 111 111. App. 403. 
 
 45 1 Washburn on Real Prop. 245 ; 2 Bla. Com. 137. 
 
 4 Williams on Real Prop. 230, 452 ; 1 W'ashburn on Real Prop. 245, 
 249. The wife must be of age. Adams v. Palmer, 51 Me. 488; Cunning- 
 ham v. Knight, 1 Barb. 399; Priest v. Cummings, 16 Wend. 617, s. c. 20 
 Wend. 338; Thomas v. Gammel, 6 Leigh 9; Jones V. Todd, 2 J. J. Marsh. 
 3:"9 ; Cason v. Hubbard, 38 Miss. 46; Hoyt v. Swar, 53 111. 139; Hughes 
 f. Wat=on, 10 Ohio 127. Generally she must renounce the dower in the 
 118
 
 CH. VII ] DOWER. 97 
 
 requirements, they must be strictly complied with, otherwise 
 the dower still exists. 47 
 
 She must, of course, have the mental capacity to understand 
 what she is doing. If she is insane her renunciation of dower 
 is a nullity, it matters not how strictly the provisions of the 
 statute may have been complied with. 48 In Kentucky a stat- 
 
 same deed in which her husband conveys the land. Shaw v. Russ, 14 
 Me. 432; Powell v. Monson, 2 Mason 353; Moore v. Tisdale, 5 B. Mon. 
 352; Atkinson V. Taylor, 34 Mo. App. 442; Grant v. Jackson, 5 Del. 
 Ch. 404. Execution of the deed by the husband's attorney, with the 
 wife, is sufficient. Fowler v. Shearer, 7 Mass. 14 ; Glenn v. Bank of 
 United States, 8 Ohio 72. The deed of renunciation must also be 
 sealed. Manning v. Laboree, 33 Me. 343; Keeler v. Tatnell, 3 N. J. 62. 
 And where the defect in the acknowledgment of the renunciation of 
 dower does not appear upon the deed, the deed cannot be avoided for 
 that purpose after the land has passed to a subsequent purchaser 
 without notice. Shivers v. Simmons, 64 Miss. 530, 28 Am. Rep. :!7-. 
 So, also, where the renunciation has been obtained through the fraud 
 or undue influence of the husband, it cannot be avoided, unless the 
 purchaser had actual or constructive notice of it. White v. Graves, 107 
 Mass. 325, 9 Am. Rep. 38; Singer Mfg. Co. V. Rook, 84 Pa. St. 442, 
 24 Am. Rep. 204; Kerr v. Russell, 69 111. 666, 18 Am. Rep. 634. And 
 a mistake in the certificate of acknowledgment cannot be subsequently 
 amended, unless the mistake relates to an unimportant fact. Angler 
 v. Shieffelin, 72 Pa. St. 106, 13 Am. Rep. 659; Merritt v. Yates, 71 111. 
 636, 22 Am. Rep. 128. 
 
 Elwood v. Klock, 13 Barb. 50; Kirk v. Dean, 2 Binn. 341; Lewis 
 v. Coxe, 5 Hair. 402; Grove v. Todd, 41 Md. 633, 20 Am. Rep. 76; 
 Scanlan r. Turner, 1 Bailey 421; Rogers v. Woody, 23 Mo. 548; Clark 
 v. Redman, 1 Blackf. 379; Stevenson r. Brasher (Ky.), 13 S. W. Rep. 
 242. In Texas, it is held that a substantial compliance with the re- 
 quirements of the statute is sufficient. Belcher V. Weaver, 46 Texas 
 293, s. c. 26 Am. Rep. 267. See also, Morris v. Sargent, 18 Iowa 99; 
 Johnson t. Parker, 51 Ark. 419. Joinder of wife, in deed of husband, 
 bars dower, in New Jersey. Goodheart v. Goodheart, 63 N. J. Eq. 746, 
 53 Atl. Rep. 135; also, in Arkansas, Dutton V. Stuart, 41 Ark. 101; and 
 in Ohio, Smith v. Handy, 16 Ohio 191. Joinder in deed of husband, bars 
 wife's dower, in Missouri. Bush v. Piersol, 183 Mo. 500, 81 S. W. Rep. 
 1224. But where joinder is conditional, on payment of annuity, no 
 bar results, unless condition is fulfilled. Brown v. Tilley, 25 R. I. 579, 
 57 Atl. Rep. 380. 
 
 48Rannells r. Isgrigg, 99 Mo. 19; Rannells v. Gerner, 80 Mo. 474. 
 
 119
 
 97 DOWER. [PART i. 
 
 ute authorizes the sale of a wife's inchoate dower, when she 
 is insane, by order of court, and by a deed, in the execution 
 of which the guardian or committee of the insane woman 
 joins with the husband, provision being made to set apart 
 for her, out of the purchase money, the value of such dower, 
 to be claimed by her whenever the dower becomes consum- 
 mate. 49 
 
 Since the dower is extinguished by a release in conjunction 
 with the husband's deed, and operates as an estoppel rather 
 than as a grant, the dower is only extinguished as against 
 those who claim the land under the deed. If, therefore, the 
 deed is void for some cause, whether it be fraud, accident, or 
 mistake, as where the husband's act is void as against his 
 creditors, her dower right would be revived and could be en- 
 forced against all other parties. 50 And if the wife has her- 
 self received value for the renunciation of dower, she will 
 not have to return such consideration before recovering her 
 dower, when the deed of conveyance or renunciation is invalid 
 for any cause. 51 But the wife can only release her dower to 
 her husband's grantee. She cannot by any independent act 
 release her right during coverture to a stranger laying claim 
 
 <Fichtner v. Fichtner's Assignee (Ky.), 11 S. W. Rep. 85. 
 
 so Harsiman v. Gray, 49 Me. 537 ; Richardson v. Wyman, 62 Me. 
 280, 16 Am. Rep. 459; Robinson v. Bates, 3 Mete. 40; Manhattan Co. v. 
 Evertson, 6 Paige 457; Malloney v. Koran, 49 N. Y. Ill, 10 Am. Rep. 
 335; Ridgway v. Masting, 23 Ohio St. 294, 13 Am. Rep. 251; Wood worth 
 V. Paige, 5 Ohio St. 70; Pinson V. Williams, 23 Miss. 64; Nickell V. 
 Tomlinson, 27 W. Va. 597; Smith V. Howell (Ark.), 13 S. W. Rep. 929; 
 Bohannon r. Combs, 97 Mo. 446. But in Illinois it was held, that if the 
 deed is avoided by not being properly recorded, she could not reclaim 
 her dower. Morton V. Noble, 57 111. 176, 11 Am. Rep. 7. It is doubt- 
 ful if this may be accepted as a universally recognized exception. From 
 the rule laid down in the text, which is fully supported by the cases 
 cited, and by reason, the judgment in the Illinois case should have 
 been in favor of the widow. See contra Stowe r. Steele, 114 111. 382. 
 No estoppel can result against the wife during the husband's life, as 
 her right to dower is then an inchoate right only. Bceman v. Kitz- 
 man (Iowa 1904), 99 N. W. Rep. 171. 
 
 6i Bottom ly v. Spencer, 36 Fed. Rep. 732. 
 120
 
 CII. VII.] DOWER. 98 
 
 to the land, or to her husband, 52 nor to a purchaser at a sale 
 in partition, until the transaction has become complete by a 
 judicial confirmation of the sale. 53 She may, however, relin- 
 quish her dower to her husband's grantee by a subsequent 
 deed in which her husband does not join, if he has previously 
 conveyed his interest by a valid deed. 54 
 
 98. Continued By elopement and divorce. Under the 
 early statute of Westminster, 13 Edw. I, ch. 34, which is 
 generally received in this country as part of the common law, 
 if a wife elopes with another man and commits adultery with 
 him, she is deprived of her dower. 55 The forfeiture is more 
 in the nature of a suspension than an absolute extinguish- 
 ment, unless such elopement and adultery is followed by a 
 divorce. 56 The divorce not only bars her dower right in the 
 
 52 Rowe t?. Hamilton, 3 Me. 63 ; Croade v. Ingraham, 13 Pick. 33 ; 
 Carson v. Murray, 3 Paige 483; Martin r. Martin, 22 Ala. 104; Mason 
 V. Mason, 140 Mass. 63; Wright V. Wright (Mich.), 44 N. W. Rep. 944. 
 
 ss Hart v. Burch, 130 111. 426. 
 
 4 Irving v. Campbell, 56 N. Y. Super. Ct. 224. 
 
 ss 4 Kent's Com. 53 ; 1 Washburn on Real Prop. 242, 243, 309, note. 
 See Elder v. Riel, 62 Pa. St. 308, 1 Am. Rep. 414; Stegall v. Stegall, 2 
 Brocken 256; Walters v. Jordan, 13 Ired. 361; Bell v. Nealy, 1 Bailey 
 312; Lecompte . Wash, 9 Mo. 551. In Massachusetts, it has been held 
 that the statute is not recognized. Lakin r. Lakin, 2 Allen 45. 
 
 56 Divorce is not necessary to bar her dower at common law. 1 
 Washburn on Real Prop. 242. But by statute it is now provided in 
 some of the States that elopement and adultery without divorce is no 
 bar. Bryan r. Batchelder, 6 R. I. 543; Reynolds V. Reynolds, 24 Wend. 
 193; Pitts v. Pitts, 52 N. Y. 593; Rawlins v. Buttel, 1 Houst. 224. See 1 
 Washburn on Real Prop. 309, note. Dower was barred by divorce, a vin- 
 culo, at common law. Barrett v. Failing, 111 U. S. 523, 28 L. Ed. 505; 
 Wood i?. Wood, 59 Ark. 441, 27 S. W. Rep. 641, 28 L. R. A. 157; Pullen 
 r. Pullen, 52 N. J. Eq. 9, 28 Atl. Rep. 719; Price v. Price, 124 N. 
 Y. 589, 27 N. E. Rep. 383, 12 L. R. A. 359; Allen v. Austin, 21 R. I. 
 254, 43 Atl. Rep. 69; Norton f. Tufts, 19 Utah 471, 57 Pac. Rep. 409. 
 Elopement, divorce and adultery, are all held to bar dower, in tho 
 following late cases. Phillipps r. Wiseman, 131 N. C. 402, 42 S. E. Rep. 
 861 ; Beatty v. Richardson, 56 S. C. 173, 34 S. E. Rep. 73, 46 L. R. A. 
 517; Nichols v. Park, 79 N. Y. S. 547, 78 App. Div. 95; Wilson r. 
 Craig, 175 Mo. 362, 75 S. W. Rep. 419; McQuinn v. McQuinn (Ky.), 61 
 
 121
 
 98 DOWER. [PART i. 
 
 lands of which her husband is seised at the time of the divorce, 
 but also in those lands which he had previously conveyed 
 away without her renunciation of dower. 57 If the parties 
 are not subsequently divorced, her dower right is revived, if 
 she returns .to her husband and is received by him and ac- 
 corded a full forgiveness. She has dower in the case of a 
 reconciliation and condonement, not only in the lands which 
 he possessed before her elopement, but also in those which he 
 has acquired and sold subsequently. 58 The commission of 
 adultery, while living apart from her husband, whatever may 
 have been the cause of the separation, will also be a bar. 59 
 But a separation of some kind must have taken place, in 
 order that her adultery might work a forfeiture of the dower ; 
 adultery in her own and husband's house will not be a bar. 60 
 So, on the other hand, mere desertion on the part of the wife, 
 unless complicated by adultery, is no bar to dower. 61 It is 
 necessary to support the claim to dower, that the widow 
 should be the wife of the husband at his decease. If, there- 
 fore, they have been absolutely divorced, from whatever 
 cause, for his as well as her fault, her dower right would be 
 extinguished, unless the statutes of the different States, pro- 
 viding for divorces, contain a saving clause, giving the inno- 
 cently divorced wife the right to enjoy her dower, as if she 
 
 S. W. Rep. 358. Where a decree of divorce is silent as to a widow's 
 right to dower, it does not bar her interest, in Illinois. Kirkpatrick V. 
 Kirkpatrick, 197 111. 144, 64 N. E. Rep. 267. 
 
 67 McKean v. Brown, 83 Ky. 208. 
 
 ss Co. Lit. 23 a, note 8; 1 Washburn on Real Prop. 242, 243. But he 
 is not bound to take her back again. Govier v. Hancock, 6 T. R. 603. 
 
 6 1 Washburn on Real Prop. 243 ; Hethrington v. Graham, 6 Bing. 
 135; Coggswell v. Tibbetts, 3 N. H. 41; Goss v. Froman (Ky.), 12 S. W. 
 Rep. 387. But she does not lose her dower, if she commits adultery, 
 under the mistaken belief that her prior husband was dead. 1 Wash- 
 burn on Real Prop. 243; 1 Cruise Dig. 175, 176. 
 
 Coggswell v. Tibbetts, 3 N. H. 41 ; Elder v. Reed, 62 Pa. St. 308, 1 
 Am. Rep. 414. 
 
 "Mye's Appeal, 126 Pa. St. 341; Henderson v. Chaires (Fla.), 6 
 So. Rep. 164. 
 122
 
 CH. VII.] DOWER. 99 
 
 was still a wife. 62 If the court grant to the wife a gross sum 
 by way of alimony, she will take this sum in lieu of dower, 
 and her dower right will thus be barred. 63 But in order that 
 in any case divorce may affect the wife's dower right, except 
 in the case of elopement and adultery, the divorce must be an 
 absolute one, dissolving the marriage tie altogether. A di- 
 vorce a mensa et thoro, ordinarily has no effect on the wife's 
 dower. 64 The effect of divorce on the wife's dower is held to 
 be determined by the law of the place in which the divorce was 
 granted. 65 
 
 99. Continued By loss of husband's seisin. As a gen- 
 eral proposition, dower can be enforced only so far as the 
 lawful seisin of the husband extends at the time when the 
 dower right attaches. She, therefore, acquires dower in his 
 lands, subject to all the defects, conditions, limitations, and 
 incumbrances, which characterize and cover the husband's 
 title. If, therefore, the husband's seisin is defeated, whether 
 by the assertion of a paramount title, the breach of a condi- 
 tion, or the expiration of the limitation, the wife's dower 
 right is also extinguished. 66 But if the husband's estate is 
 
 624 Kent's Com. 54; 2 Bla. Com. 130; Bishop's Mar. and Div., Sees. 
 661, 662, 663; 1 Washburn on Real Prop. 309, note. The statutes relat- 
 ing to the granting of divorce usually provide that the innocent party 
 shall not lose his or her marital rights. Stahl v. Stahl, 114 111. 375; 
 Percival v. Percival, 56 Mich. 297; Gordon v. Dickson (111.), 23 N. E. 
 Rep. 439; Van Cleaf v. Burns, 118 N. Y. 549; Rhea v. Rhea, 63 Mich. 
 257. A wife who takes through jointure, instead of dower, takes as a 
 purchaser and is not affected by a divorce. Saunders v. Saunders, 144 
 Mo. 482, 46 S. W. Rep. 428. 
 
 3Tatro v. Tatro, 18 Neb. 395, 53 Am. Rep. 320; Owen v. Yale, 73 
 Mich. 256. 
 
 4 Taylor v. Taylor, 93 N. C. 418, 53 Am. Rep. 460. 
 
 Van Cleaf v. Burns, 118 N. Y. 549. 
 
 1 Washburn on Real Prop. 256 ; Seymour's Case, 10 Rep. 96 ; Ray v. 
 Pange, 5 B. & Aid. 561; Brown v. Williams, 31 Me. 403; Beardslee v. 
 Beardslee, 5 Barb. 324; Sanford v. McLean, 3 Paige 117; Northcutt 
 r. Whipp, 12 B. Mon. 72; Wheeler V. Smith, 55 Mich. 355; Moriarta V. 
 McRea, 45 Hun 564. 
 
 123
 
 99 DOWER. [PART i. 
 
 determined and made to shift over to another upon the hap- 
 pening of a contingency, so that the limitation over is a con- 
 ditional limitation, it has been generally held, although con- 
 troverted by good authorities, that the wife's dower neverthe- 
 less survives and suspends the execution of the limitation over 
 until her death. 67 A like exception is recognized universally 
 in favor of the continuance of the wife's dower, where the 
 
 7 Buckworth f. Thirkell, 3 B. & P. 652, note ; Moody v. King, 2 Bing. 
 447; Sammes r. Payne, 1 Leon 167; Hatfield V. Sneden, 54 N. Y. 285; 
 Milledge v. Lamar, 4 DeSau 637; Northcut v. Whipp, 12 B. Mon. 72; 
 Nickell v. Tomlinson, 27 W. Va. 697 ; Pollard v. Slaughter, 92 N. C. 72, 
 53 Am. Rep. 402; Fry v. Scott (Ky.), 11 S. W. Rep. 426. Chancellor 
 Kent says : " The ablest writers upon property law are against the 
 right of the dowress, when the fee of the husband is determined by 
 executory devise or shifting use." C. J. Gibson in Evans v. Evans, 
 supra, says: " Not one of the text-writers has hinted at the true solu- 
 tion of the difficulty, except Mr. Preston. All agree that where the 
 husband's fee is determined by recovery, condition, or collateral limita- 
 tion, the wife's dower determines with it. I have a deferential respect 
 for the opinion of Mr. Butler, who was perhaps the best conveyancer of 
 his day, but I cannot comprehend the reasons of his distinction in the 
 note to Co. Lit. 241 a, between a fee limited to continue to a particular 
 period at its creation, which curtesy or dower may survive, and the 
 devise of a fee simple or a fee tail absolutely or conditional, which by 
 subsequent words is made determinable upon some particular event, at 
 the happening of which dower or curtesy will cease." " How to recon- 
 cile to any system of reason, technical or natural, the existence of a 
 derivative estate, after the extinction of that from which it was de- 
 rived, was for him (Butler) to show, and he has not done it. The 
 case of a tenant in tail," says Mr. Preston ( 3 Prest. Abst. 373 ) , "is an 
 exception arising from an equitable construction of the statute De Donis, 
 and the cases of dower of estates determinable by executory devise and 
 springing (shifting) use owe their existence to the circumstance that 
 these limitations are not governed by common law principles." " It 
 was the benign temper of the judges who moulded the limitations of the 
 estates introduced by them, whether original or derivative, so as to 
 relax the severer principles of the common law, and among other things, 
 to preserve curtesy and dower from being barred by a determination of 
 the original estate which could not be prevented." The student is not 
 prepared to understand the refined distinctions here hinted at, until 
 he has mastered the subsequent chapters on Estates upon Condition, 
 Uses and Trusts, Remainders and Executory Devises. A recurrence to 
 this section after a study of the subjects mentioned is advisable. 
 124
 
 CH. VII.] DOWEE. 100 
 
 husband's estate as tenant in tail has been determined by Hie 
 failure of issue capable of taking. 68 
 
 100. Continued By estoppel in pais. After the death 
 of the husband, the widow may, by acts which are sufficient 
 to work an estoppel in ordinary cases, 69 bar her right to dower 
 without any formal release. Her acts would have that effect, 
 if they were calculated to mislead and work a fraud upon 
 purchasers. 70 But in order that her acts during coverture 
 may operate as an estoppel and bar her dower they must be 
 equivalent in legal effect to one of the different formal modes 
 provided by law for the extinguishment of the dower. 71 
 
 684 Kent's Com. 49; 1 Washburn on Real Prop. 261; Northcut V. 
 Whipp, 12 B. Mon. 73, Paine's Case, 8 Rep. 36. 
 See post, Sees. 508, 510. 
 
 70 It must be an unequivocal act or declaration. Mere silence is not 
 sufficient, and presence at the sale without giving notice of her right, 
 will not estop her from claiming dower. Heth v. Cocke, 1 Rand. 344; 
 Smith v. Paysenger, 2 Const. ( S. C. ) 59 ; Owen v. Slatter, 26 Ala. 547 ; 
 Tennent V. Stoney, 1 Rich. Eq. 222; Davis v. Cornelius (Ky.), 10 S. W. 
 Rep. 471. And likewise her dower is not estopped by a conveyance by 
 her in the capacity of her husband's administratrix, where no mention 
 was made of her dower, unless she covenants to warrant the title, or 
 purports to convey generally her interest as well as his. Shurtz v. 
 Thomas, 8 Pa. St. 359; Usher v. Richardson, 29 Me. 415; Magee v. 
 Mellon, 23 Miss. 585; Shoot v. Galbreath, 128 111. 214. And dower will 
 not be barred by joining the widow in a suit for specific performance 
 against the heirs on the contract of the husband for the sale of the 
 lands; she need not answer and may afterwards claim her dower. 
 Grady v. McCorkle, 57 Mo. 172, 17 Am. Rep. 672. But parol denials 
 of her claim, or a participation in the proceeds of a judicial sale in a 
 suit, to which she is made a party, will estop her. Dongrey v. Topping, 
 4 Paige 94; Reed V. Morrison, 12 Serg. & R. 18; Gardiner t?. Miles, 5 
 Gill 94; Allen t?. Allen, 112 111. 323. 
 
 71 Martin v. Martin, 22 Ala. 104; Davis v. Townsend (S. C.), 10 S. 
 E. Rep. 837; Rockwell v. Rockwell (Mich.), 46 N. W. Rep. 8. And 
 where the wife of the mortgagor releases dower in her husband's con- 
 veyance of the equity of redemption, it bars her dower in the entire 
 estate, although she did not join in the execution of the mortgage. 
 Hoogland r. Watt, 2 Sandf. Ch. 148. See Usher v. Richardson, 2!i Mr. 
 415. No estoppel can result during the life of the husband. Beeman 
 f. Kitzman (Iowa 1904), 99 N. W. Rep. 171. 
 
 125
 
 102 DOWER. [PART i. 
 
 101. Continued By statute of limitations. Under no 
 circumstances will the wife's inchoate right be affected by 
 the adverse possession of the land during the life-time of the 
 husband. 72 And after it has become, by his death, a con- 
 summate right in the nature of a chose in action, although 
 long adverse possession after the husband's death is proper 
 evidence for the jury to establish a release of the dower 
 right, it is no absolute bar to the action, unless the statute 
 is made expressly to include actions of dower. 73 
 
 102. Continued By exercise of eminent domain. It is 
 well settled, that the dower right of the wife or widow is 
 defeated by the exercise of eminent domain over the land, 
 out of which the dower issues. But it is a matter of con- 
 siderable doubt, whether the right before assignment, dur- 
 ing the life of the husband, or after his death, partakes so 
 much of the nature of an interest or estate in the land, 
 as to entitle her to compensation separate from her hus- 
 band or his heirs and assignees. It has been held that she 
 cannot claim such compensation, but the question cannot 
 be considered as definitely settled. 74 
 
 72 Durham v. Angier, 20 Me. 242; Moore v. Frost, 3 N. H. 127; 
 Williams V. Williams (Ky.), 12 S. W. Rep. 760. 
 
 "4 Kent's Com. 70; Parker v. Obear, 7 Mete. 24; Barnard v. Ed- 
 wards, 4 N. H. 107; Spencer V. Weston, 1 Dev. & B. 213; Guthrie v. 
 Owen, 10 Yerg. 339; 1 Washburn on Real Prop. 267. But in a number 
 of the States there are express statutory provisions in respect to barring 
 dower by lapse of time. See Robie V. Flanders, 33 N. H. 524; Dur- 
 ham v. Angier, 20 Me. 242; Spencer V. Weston, 1 Dev. & B. 213; 
 Wilson r. McT^nagham, 1 McMull. Eq. 35; Chase v. Alley, 82 Me. 
 234, 19 Atl. Rep. 397; Carmichael V. Carmichael, 5 Humph. 96; Ridg- 
 way V. McAlpine, 31 Ala. 464; Tattle v. Wilson, 10 Ohio 24; Butcher v. 
 Butcher (Mich. 1904), 100 N. W. Rep. 604; Harrison V. McReynolds, 
 183 Mo. 533, 82 S. W. Rep. 120. See note to Sec. 85. 
 
 7 * 1 Washburn on Real Prop. 270. See Moore r. New York, 4 Sandf. 
 450, *. o. 8 N. Y. 110; Gwynne V. Cincinnati, 3 Ohio 24. See, contra, 
 recognizing the widow's claim to compensation, Ebey v. Ebey, 1 Wash. 
 185. Dower is not lost by condemnation for a railroad, in Massachu- 
 setts. Nye v. Taunton Branch R. R., 113 Mass. 277. But see, Venable 
 126
 
 Cfl. VII.] DOWER. 104 
 
 103. Widow's quarantine. Upon the death of the hus- 
 band, the widow's right of dower becomes consummate, and 
 she is entitled to an immediate assignment of her dower. 
 Until assignment has been made, and for a period of forty 
 days, she was entitled at common law to a residence in the 
 principal mansion house of her husband, provided she did 
 not marry within that time. This right was called her 
 quarantine. 75 It is generally recognized in the United 
 States; but since it is principally regulated by statute, there 
 is a considerable variation in respect to its duration, and 
 its relation to the right of assignment of dower. 76 The gen- 
 eral rule is that dower should be set out to her within the 
 time of her quarantine, and if it is not, she may at the end 
 of that time pursue the different remedies given for the 
 recovery of the dower and its assignment. 77 
 
 104. Assignment Two modes. There are two modes of 
 setting out dower respectively called, " of common right," 
 and "against common right." If it has been assigned of 
 common right, and the widow has lost a part or the whole 
 of the land set out to her by the assertion of a paramount 
 title, she is entitled to an assignment de novo out of the 
 remainder of the husband's estate, so that the loss by eviction 
 will not fall entirely upon her. And on the other hand, if 
 there is an eviction of the heir, after assignment of dower, 
 he will in like manner be entitled to a new assignment. But 
 if the assignment was "against common right," it is final, 
 and if the share of either widow or tenant of the freehold 
 is subsequently "lost by eviction under paramount title, they 
 have no remedy against each other, as in the case of as- 
 signment ' ' of common right. ' ' T8 
 
 v. Wabash R. R., 112 Mo. 103; Duncan v. City, 85 Ind. 104; Olcott v. 
 Supervisors, 16 Wall. 694. 
 
 "Co. Lit. 34 b ; 2 Bla. Com. 139. 
 
 ' See Neustacher v. Schmidt, 25 111. App. 626. 
 
 127
 
 105 DOWER. [PART i. 
 
 105. Continued Of common right. Dower of common 
 right must, as a general rule, be set out by metes and 
 bounds. 79 It is not necessary, where the husband died seised, 
 that the widow should receive one-third by metes and bounds 
 of each tract of land; nor can she of right control the dis- 
 cretion of the sheriff or tenant in the assignment of the 
 dower by the expression of her own wishes. 80 The tenant 
 or sheriff, as the case may be, is vested with considerable 
 discretion in regard to this matter, and if, under all the 
 circumstances surrounding the case, it is advisable or reason- 
 able, the dower might be assigned to her out of one tract 
 altogether, or where the property consists of arable, pasture 
 and other kinds of land, she may be given her dower in one 
 kind to the exclusion of the others. 81 But if the lands are 
 held separately by several grantees of the husband, dower 
 must be set out in each parcel. 82 So, also, must assignment 
 be made out of each separate tract, where some of them are 
 incumbered by mortgages in which the wife has joined, and 
 where other tracts are free from incumbrances. 83 While she 
 can claim dower out of existing incorporeal hereditaments, 
 including easements, the sheriff cannot create in her favor, 
 and as a part of her dower, a new easement imposed on 
 lands, not assigned to her. 84 Where the property is such 
 
 77 4 Kent's Com. 63 ; 1 Washburn on Real Prop. 277, note 277. She can 
 claim her right of quarantine even against her husband's grantee. 
 Shelton v. Carroll, 16 Ala. 148; Phasis V. Leachman, 20 Ala. 662. 
 
 78 French v. Pratt, 27 Me. 381; Scott 17. Hancock, 13 Mass. 162; Jones 
 v. Brewer, 1 Pick. 314; Singleton v. Singleton, 5 Dana 87; Holloman v. 
 Holloman, 5 Smed. & M. 559. 
 
 7 Co. Lit. 34 b, note 213; 1 Washburn on Real Prop. 273; Pierce v. 
 Williams, 3 N. J. L. 521. 
 
 so Moore v. Dick (111.), 24 N. E. Rep. 768. 
 
 si 1 Washburn on Real Prop. 286 ; White v. Story, 2 Hill 543 ; Jones 
 v. Jones, Busbee (N. C.) 177. See Hardin v. Lawrence, 40 N. J. Eq.154. 
 
 82 Co. Lit. 35 a; Doe v. Gwinnell, 1 Q. B. 423; Coulter V. Holland. 
 2 Harr. 330; Cook v, Fisk, Walk. 423 Morgan v. Blatchley, 33 W. Va, 
 155. 
 
 83 Askew v. Askew, 103 N. C. 285. 
 s* Price v. Price, 54 Hun 349. 
 
 128
 
 CH. VII.] DOWER. 105 
 
 that the dower cannot, without loss, be set out by metes and 
 bounds, it is then permitted that a certain share in the in- 
 come or occupation and enjoyment of the land should be 
 set apart for her, while the property is held by her in com- 
 mon with the tenant of the freehold. 85 In making the as- 
 signment, the extent of her one-third interest in the land 
 is determined by the market and productive value, instead 
 of the mere quantity of land. She is entitled to that part 
 of the estate which would yield her one-third of the rents 
 and profits received from the entire estate. 86 And if the 
 land is incumbered, the dower being subject to the incum- 
 brance, the value of the land will be estimated by a deduc- 
 tion of the amount of the incumbrance from the total value 
 of the land. 87 If the land is held by the heir or devisee, 
 the value of the land or income is estimated at the time 
 when the dower is assigned, thus giving her the benefit 
 of any increase, including any improvements by the heir, 
 as well as subjecting her to the loss by any natural de- 
 preciation in the value of the land after the death of her 
 husband. 88 If the depreciation is the result of a willful 
 
 83 1 Washburn on Real Prop. 286, 287; Stoughton r. Leigh, 1 Taunt. 
 402; Stevens v. Stevens, 3 Dana 371. And where the property consists 
 of mines, dower may be assigned by a parol agreement to divide the 
 profits, and to give her one-third of them. Billings v. Taylor, 10 Pick. 
 460; Coates v. Cheever, 1 Cow. 478; Lenfers v. Henke, 37 111. 405, 24 
 Am. Rep. 263. The widow has dower in oil wells, opened after hus- 
 band's death, in Ohio. Willford V. Heimhoffer, 25 Ohio Cir. Ct. 748. 
 But before assignment, dowress cannot make a valid mining lease. 
 Huok v. Garfield Coal Co. (Iowa), 83 N. W. Rep. 963. Dower does not 
 entitle the widow to sell timber, in Alabama. Garnett Smelting Co. v. 
 Watts (1904), 37 So. Rep. 201. 
 
 8 Leonard . Leonard, 6 Mass. 533 ; Coates V. Cheever, 1 Cow. 476 ; 
 McDaniel v. McDaniel, 3 Ired. 61 ; Smith v. Smith, 5 Dana 179. 
 
 8T Platt's Appeal, 56 Conn. 572. 
 
 8 Powell v. Monson, 3 Mason 368; Parker v. Parker, 17 Pick. 236; 
 Davis v. Walker, 42 N. H. 482; Thompson v. Morrow, 5 Serg. & R. 290; 
 Williams on Real Prop. 233; 1, Washburn on Real Prop. 288; Co. Lit. 
 32 a. In New York, the value is ascertained at the time of descent to 
 the heir. Sidway v. Sidway, 53 Hun 222. 
 
 9 129
 
 105 DOWER. [PART i. 
 
 waste by the heir, she has her right of action for damages 
 against him ; but it does not affect or alter the manner of 
 assignment. 89 If the land is held by alienees of the hus- 
 band, the English rule, which is followed by the courts of 
 some of the States, is, that the value must be estimated ac- 
 cording to the condition of the estate at the death of the 
 husband. 90 The general rule in this country is that the 
 dower must be adjudged according to the value of the land 
 at the time of assignment, less any increase of value arising 
 from improvements made by the alliance, thus giving the 
 widow the benefit of the increase produced by the general 
 and natural rise in the value of the property. 91 A further 
 
 8 1 Washburn on Real Prop. 288. See Powell v. Monson, 3 Mason 
 368; Campbell r. Murphy, 2 Jones Eq. 362. 
 
 oDoe r. Gwinnell, 1 Q. B. 682; Campbell t>. Murphy, 2 Jones Eq. 
 357. In New York and Virginia, the value of the land at the time of 
 alienation is the true basis of estimating the value of the dower right. 
 Walker v. Schuyler, 10 Wend. 480; Tod v. Baylor, 4 Leigh 498; Van 
 Gelder V. Post, 2 Edw. 577. In the earlier decisions, the courts of New 
 York followed the English rule. Humphrey v. Pinney, 2 Johns. 484; 
 Shaw V. White, 13 Johns. 484. In Hade v. James, 6 Johns. Ch. 258, and 
 Barney r. Frowner, 9 Ala. 901, the question is left an open one. But 
 see Marble r. Lewis, 36 How. Pr. 343. When there is a change in the 
 law after the husband's alienation, the widow's dower in respect to the 
 aliened lands is governed by the law as it existed at the time of 
 alienation. McCafferty r. McCafferty, 8 Blackf. 218; Cowan r. Strader, 
 1 Ind. 134; Moore v. Kent, 37 Iowa 20, s. c. 18 Am. Rep. 1; Kennerly 
 V. Missouri Ins. Co., 11 Mo. 204. 
 
 i Powell r. Monson, 3 Mason 365; Boyd v. Carlton, 60 Me. 20. 31 
 Am. Rep. 268; Carter r. Parker, 28 Me. 509; Thompson v. Morrow, 5 
 Serg. & R. 289; Shirley v. Shirley, 5 Watts 328; Bowie r. Berry, 3 
 Md. Ch. 359; Rawlins v. Buttel, 1 Houst. 224; Green v. Tennant, 2 
 Harr. 336 ; Dunseth V. Bank of United States, 6 Ohio 76 ; Smith r. Ad- 
 dleman, 5 Blackf. 406; Woodbridge v. Wilkins, 3 How. (Miss.) 300; 
 Taylor r. Broderick, 1 Dana 348; Jonas v. Hunt, 40 N. J. Eq. 660; 
 Grissom r. Moore, 106 Ind. 296, 55 Am. Rep. 742 (case of executory 
 contract of sale during the life-time of the husband). And if the 
 alienee has, during the life-time of the husband, diminished the value 
 of the land by his mismanagement, the widow is without remedy. 
 Powell v. Monson. 3 Mason 368; Thompson V. Morrow, 5 Serg. & R. 290 ; 
 McClanahan v. Porter, 10 Mo. 746. 
 130
 
 CH. VII.] DOWER. 107 
 
 requisite in the assignment "of common right" is, that 
 the estate set out to her must be absolute for life, and free 
 from conditions and exceptions. 92 
 
 106. Dower Against common right. In the assignment 
 of dower, however, it is not necessary that it should be 
 set out in the manner above described. Any other mode 
 of assignment may be adopted by agreement of the parties, 
 and that agreement will effectually bar all claims to dower 
 "of common right," if properly and legally executed; but 
 the practice is for the widow to give a release under seal 
 of her dower right; 93 and when the settlement has been 
 properly executed, it cannot be re-opened and the dower re- 
 asserted, or re-assigned, unless it is charged that the agree- 
 ment had been procured by fraud. 94 It is sometimes pro- 
 vided by statute that a settlement in bar of dower cannot 
 have the effect intended unless such intention to bar dower 
 is expressed on the face of the agreement. 95 
 
 107. By whom may dower be assigned. The tenant of the 
 freehold is the only person who is entitled to make the as- 
 signment. A disseisor may do it, and if the assignment is 
 made strictly "of common right," it is binding upon the 
 rightful owner. 06 If the tenant be a minor, his assignment 
 is subject to revision on his arrival at his majority, unless 
 he is under guardianship, and his guardian makes the as- 
 signment, when it will be binding upon him. 97 Where the 
 
 2<X Lit. 34 b, note 217; 1 Washburn on Real Prop. 274. 
 
 03 1 Washourn on Real Prop. 273, 274 ; Co. Lit. 34 b ; Vernon's Case, 4 
 Rep. 1; Conant v. Little, 1 Pick. 180; Jones v. Brewer, 76. 314. 
 
 Scott v. Ashlin (Va.), 10 S. E. Rep. 751. 
 
 ' Dudley v. Davenport, 85 Mo. 462. 
 
 Co. Lit. 36 a ; Stoughton v. Leigh, 1 Taunt. 402; 1 Washburn on 
 Real Prop. 274. 
 
 72 Bla. Com. 136; Young v. Tarbell, 17 Me. 509; Curtis v. Hobart, 
 41 Me. 230; Jones r. Brewer, 1 Pick. 314; McCormick v. Taylor, 2 Ind. 
 336; Boyers r. Newbanks, Id. 388. In Illinois the assignment may be 
 revised by the infant tenant of the freehold, although it was set out by 
 
 131
 
 $ 108 DOWER. [PART i. 
 
 land is held by two or more jointly, either may set out the 
 dower. 98 
 
 108. Remedies for recovery of dower. If the dower is 
 not assigned within the time appointed by the law for the 
 continuance of the widow's quarantine, she can compel the 
 assignment by a resort to the courts. As a general rule, 
 controlled in each State by statutory enactments, there are 
 three remedies for the recovery of dower: 1. The common 
 law action for dower. 2. A similar action in equity. 3. A 
 summary proceeding in courts of probate, usually confined 
 to claims of dower against the h?irs and devisees of the 
 husband." The most effective remedy is the action in equity, 
 in that it includes within its jurisdiction actions upon 
 equitable as well as legal dower, while the common-law rem- 
 edy is confined to legal dower. For further particulars, 
 reference must be made to the statutes of the States. 
 
 the guardian. See Bonner v. Peterson, 44 111. 260. In Nebraska, dower 
 is assignable by the county court. Tyson v. Tyson ( 1904 ) , 98 N". W. 
 Rep. 1076. In Iowa, either by a proceeding at law, or in equity. Bee- 
 man v. Kitzman, 99 N. W. Rep. 171. 
 
 8 Co. Lit. 35 a ; 1 Washburn on Real Prop. 275. 
 
 99 Where it has not been changed by statute, courts of law and equity 
 have concurrent jurisdiction in respect to dower, and the rules govern- 
 ing assignments are alike in both courts. Herbert v. Wren, 7 Cranch 
 376; Mayberry V. Brien, 15 Pet. 21; Badgley v. Bruce, 4 Paige 98; 
 Wells V. Beall, 2 Gill & J. 468; Campbell v. Murphy, 2 Jones Eq. 357; 
 Osborne V. Horine, 17 111. 92. The remedy in the Probate Court is 
 generally confined to cases of dower, which arise between the widow 
 and the heir or devisee. As a rule this remedy cannot be resorted to 
 in a case of dower against the husband's alienee. French v. Crosby, 23 
 Me. 276; Sheaffe v. O'Neil, 9 Mass. 9; Raynham V. Wilmarth, 13 Mete. 
 414; Matter of Watkins, 9 Johns. 246; Bisland v. Hewett, 11 Smed. 
 & M. 164; Thrasher V. Pinckard, 23 Ala. 616. In Vermont the court 
 of probate has exclusive jurisdiction. Danforth V. Smith, 23 Vt. 247. 
 In Michigan ejectment seems to lie for the enforcement of the dower. 
 Rea v. Rea, 63 Mich. 257. But it cannot be instituted by any vendee of 
 the widow; she alone can bring the action of ejectment for the assign- 
 ment of dower. Galbraith 'v. Fleming, 60 Mich. 408. See Tyson v. Ty- 
 son (1904), 98 N. W. Rep. 1076; Beeman v. Kitzman, 99 N. W. Rep. 
 132
 
 CH. VII.] DOWER. 110 
 
 109. Demand necessary. In some States it is required 
 by statute that a demand should be made of the heir or 
 tenant before commencing the action; and, generally, when 
 damages are asked for, a demand is made, whether required 
 by statute or not, in order to fix a time from which the dam- 
 ages begin to run. 1 It is not necessary that the demand 
 should be made in writing, and if it is done by attorney 
 the power may be given by parol. 2 But if the demand or 
 power of attorney is in writing, the extent of the demand 
 should be made sufficiently clear in the writing, in order 
 that no resort to parol evidence will be necessary. 3 The de- 
 mand must be made of the tenant of the freehold, and, if 
 more than one, it must be made of all of them; and such a 
 demand is good against subsequent purchasers of the ten- 
 ant 4 
 
 110. Against whom and where the action is brought. 
 The action must be brought in the county where the land 
 lies; and the right of dower is construed and governed by 
 the law of the place in which it is situated. 5 The action is 
 
 171; Hybart r. Jones, 130 X. C. 227, 41 S. E. Rep. 293; Rice t\ 
 Waddell, 168 Mo. 99, 67 S. W. Rep. 605. 
 
 i Young r. Tarbell, 37 Me. 509; Stevens 0. Reed, 37 N. H. 49; Pond 
 r. Johnson. 9 Gray 193; Jackson r. Churchhill, 7 Cow. 287; Hopper 
 v. Hopper, 2 N. J. 715. 
 
 -Watson r. Watson, 10 C. B. 3; Lathrop v. Foster, 51 Me. 367; 
 Baker r. Baker, 4 Me. 67; Stevens v. Reed, 37 N. H. 49; Page V. Page, 
 6 Cush. 196. 
 
 3Haynes t. Powers, 22 N. H. 590; Davis r. Walker, 42 N. H. 482; 
 Sloan r. Whitman, 5 Cush. 532; Atwood v. AtwodH, 22 Pick. 283; Bear 
 r. Snyder, 11 Wend. 592. 
 
 Luce r. Stubbs, 35 Me. 92 ; Barker v. Blake, 36 Me. 433 ; Watson 
 v. Watson, 10 C. B. 3. 
 
 si Washburn on Real Prop. 280; 2 Kent's Com. 183, note; Lamar tv 
 Scott, 3 Strobh. 502; Duncan r. Dick, Walk. 281. And except where 
 the land has been sold during the life-time of the husband, the dower 
 right is determined by the law in force at the death of the husband. 
 Melizet's Appeal, 17 Pa. St. 455; Randall . Kreiger, '2 Dill. 447; Lucas 
 r. Sawyer, 17 Iowa 517. As to lands conveyed by the husband, see 
 ante, Sec. 105, note. 
 
 133
 
 112 DOWER. [PART i. 
 
 brought only against those who are tenants cf the freehold 
 at the beginning of the action, and such is the rule, even 
 though there has been a conveyance after the demand has 
 been made; and, likewise, if the tenant is a disseisor, he is 
 the proper party. 6 And although the widow, in the action 
 for her dower, is bound to overcome any evidence of the 
 defect of title in her husband, which is introduced by the 
 defendant in his resistance of her claim of dower, until 
 such defect of title is claimed, she is not obliged, in sup- 
 port of her dower right, to make strict proof of her husband 's 
 title. 7 
 
 111. Continued Abatement by death of widow. The 
 action for dower is personal, and dies with the widow, and 
 the suit is abated for every purpose, notwithstanding judg- 
 ment has been rendered, if the assignment and the assess- 
 ment of damages have not been made. 8 
 
 112. Judgment What it contains. If the widow is suc- 
 cessful in her action, she is given judgment for the recovery 
 and assignment of dower, and, in some places, damages for 
 its detention. 9 The judgment is of a twofold character; 
 the right to recovery of her dower, being a common-law 
 right, while the claim for damages rests upon statute. Judg- 
 ment may be rendered for the assignment of dower, whether 
 the claim for damages has been lost, or it still exists; but 
 if the right to dower has been lost, whether it be by the 
 
 Barker v. Blake, 36, Me. 433 ; Manning v. Laboree, 33 Me. 343 ; Himl 
 v. Grant, 3 Wend. 340; Miller v. Beverley, 1 Hen. & M. 367; Norwood v. 
 Morrow, 4 Dev. & B. 442. And where the dower is to be assigned out 
 of several parcels of land, belonging to different persons, unless 
 changed by statute, a separate action must be brought against each 
 of the owners. They cannot be sued jointly. Fosdick v. Gooding, 1 Me. 
 30; Barney V. Frowner, 9 Ala. 901. 
 
 7 Stark r. Hopson, 22 S. C. 42. 
 
 sRowe r. Johnson. 19 Me. 146; Atkins v. Yeomans, 6 Mete. 438; 
 Sandback v. Quigley, 8 Watts 460; Turney V. Smith, 14 111. 242. 
 
 2 Bla. Com. 136; Co. Lit. 32 b ; 1 Washburn on Real Prop. 279, 281. 
 134
 
 CH. VII.] DOWER. 113 
 
 running of the Statute of Limitations, or through abate- 
 ment by the death of the widow, no damages can be re- 
 covered by her or her personal representatives. 10 
 
 113. Continued Damages when recoverable. Damages 
 could not, at common law, be recovered for the detention 
 of the dower lands. They were first granted by the Statute 
 of Merton, which has generally, in this country, either been 
 recognized as the common law or substantially re-enacted 
 with important additions. 11 In England, under the Statute 
 of Merton, the damages could only be recovered of the heir 
 or abater, and their assigns, not against the alienee of the 
 husband. But in this country, damages are recoverable 
 against the heir from the death of the husband, or the ex- 
 piration of her quarantine: if it is against a purchaser, 
 they are allowed either from the demand made upon him, 
 or the commencement of the suit, according to the statutory 
 provisions or local laws of each State. 12 In New York there 
 
 10 Co. Lit. 32 b, note 4; Rowe V. Johnson, 19 Me. 146; Tuck i\ Fitts, 
 18 N. H. 171; Atkins V. Yeomans, 6 Mete. 438; Sharp v. Pettit, 4 Dall. 
 212; Shirtz v. Shirtz, 5 Watts 255; Turney f. Smith, 14 111. 242; Waters 
 r. Gooch, 6 J. J. Marsh. 586. 
 
 "Co. Lit. 32 b ; Thompson v. Collier, Yelv. 112; Embree v. Ellis, 2 
 Johns. 119; Hitchcock v. Harrington, 6 Johns. 290. 
 
 12 In some of the States the English rule still prevails that she cannot 
 recover from the husband's grantee. Sharp v. Pettit, 2 Dall. 212; Fisher 
 v. Morgan, 1 N. J. L. 125; Waters v. Gooch, 6 J. J. Marsh. 580. In 
 others no damages are recoverable in any case. Hayvvard v. Cuthbert, 
 1 McCord 386; Bank of United States v. Dunseth, 10 Ohio 18. Where 
 the suit is against the heir, damages are allowed from the expiration of 
 her quarantine; but if the heir has conveyed the estate away, damages 
 can be recovered of the vendee from the time of his purchase. New- 
 bold V. Ridgway, 1 Harr. 55; Green v. Tennant, 2 76. 336; Russell 
 v. Austin, 1 Paige 192. But see Seaton r. Jamison, 7 Watts 583. The 
 damages are recovered of the heir for the time elapsing between the 
 death of the husband and the conveyance by the heir. Hazen r. Thur- 
 ber, 4 Johns. Ch. 604. Generally, where damages are allowed against 
 the husband's alienee, they run from the demand for assignment. See 
 1 \Vashburn on Real Prop. 282, 283; Sellman v. Bowen. 8 Gill & J. 50; 
 Beavers v. Smith, 11 Ala. 20; Thrasher v. Tyack, 15 Wis. 259; Me- 
 
 135
 
 114 DOWER. [PART i. 
 
 is a further restriction, that damages shall not be allowed 
 for more than six years. 13 The mode of computing the dam- 
 ages is the same everywhere, being one-third of the annual 
 rents and profits for the time for which damages are al- 
 lowed. 14 The damages are assessed by the jury which renders 
 the verdict, if it is an action at law; and if an action in 
 equity by the court, if assented to, or by a sheriff jury 
 summoned for the purpose. 15 
 
 114. Continued Assignment after judgment. The 
 dower, after judgment has been rendered, may be set out 
 to her by the tenant of the freehold. And a parol assign- 
 ment, if according to common right, would be binding upon 
 all parties. But if the parties cannot agree, the widow is 
 entitled to an order, or writing, directed to the sheriff and 
 commanding him to set out the dower. He either does 
 this himself, or in some States causes it to be assigned by 
 commissioners, who are appointed for that purpose. 10 When- 
 ever dower is awarded by legal process, the assignment must 
 always be made according to "common right," so far as it 
 is possible to do so under the circumstances of the case. Any 
 other mode of assignment would be invalid, unless assented 
 to by the parties. 17 The sheriff is then required to make a 
 
 Clanahan v. Porter, 10 Mo. 746; Lee v. Campbell (Ky.), 1 S. VV. Rep. 
 873. In Virginia, from the beginning of the action. Tod v. Baylor, 4 
 Leigh 498. In Virginia interest on the value of the widow's claim, 
 against an alienee, runs only from the date of the suit. Dickenson V. 
 Gray (1902), 42 S. E. Rep. 298. 
 
 is Bell v. New York, 10 Paige 70; Marble v. Lewis, 36 How. Pr. 337; 
 Price I?. Price, 54 Hun 349. 
 
 n 4 Kent's Com. 65 ; 1 Washburn on Real Prop. 282 ; Winder v. Little, 
 4 Yeates 152; Layton v. Butler, 4 Harr. 507; Wilthaus v. Schack, 38 
 Hun 560; Lee v. Campbell (Ky.), 1 S. W. Rep. 873. 
 
 is 1 Washburn on Real Prop. 283. 
 
 i8 1 Washburn on Real Prop. 284, 285; Co. Lit. 208 a, note 105; Mann- 
 drell v. Manndrell, 7 Ves. 567 ; Stoughton V. Leigh, 1 Taunt. 402 ; Mans- 
 field v. Pembroke, 5 Pick. 449 ; Parker v. Parker, 17 Pick. 236 ; Weir V. 
 Tate, 4 Ired. Eq. 264. 
 
 IT 1 Washburn on Real Prop. 273, 285, 286. Pierce V. Williams, 3 N. 
 J. L. 521; Brittain V. Mull, 91 N. C. 498. 
 136
 
 CH. VII.] DOWER. 115 
 
 return to the court, and if no objections are raised against 
 the assignment, it is confirmed by order of the court, and be- 
 comes binding upon all parties. 18 
 
 115. Assignment When two or more widows claim 
 dower. If the land descends from one person to another, 
 both dying before assignment of dower to the widow of the 
 first, the widows of both the successive tenants would have 
 dower in the same land. But since by the assignment of 
 dower, the heir loses the seisin to that part of the land, 
 the widow of the heir would only have dower out of the 
 remaining two-thirds, in conformity with the maxim, dos de 
 dote peti non debet. But if the heir survived the ancestor's 
 widow, he would regain the actual seisin to the reversion 
 of the widow's one-third, and his wife's dower right could 
 at once attach. 19 But where dower is claimed by two widows, 
 whose husbands sustained the relation of vendor and vendee 
 in respect to the land, the assignment of dower to the widow 
 of the former would only suspend the dower right of the 
 other widow to that one-third during the life-time of the 
 first dowress; and it would revive upon her death, provided 
 the assignment to the elder dowress did not take place be- 
 fore the marriage of the vendee. 20 But if before assignment 
 
 "I Washburn on Real Prop. 284, 288; Serry t?. Curry (Neb.), 42 
 N. W. Rep. 97, s. c. 26 Neb. 203. And if there is any objection to be 
 made against the assignment, it must be presented at the time, when 
 the return of the sheriff or commissioner comes up for confirmation. 
 Tilson t?. Thompson, 10 Pick. 359; Jackson v. Hixon, 17 Johns. 123; 
 Chapman v. Schroeder, 10 Ga. 321. See Fellows v. Bunn (Ark.), 11 S. 
 W. Rep. 480. 
 
 ! Hitchens r. Kitchens, 2 Vern. 405 ; Manning v. Laboree, 33 Me. 343 ; 
 Cook V. Hammond, 4 Mason, 485; Elwood v. Klock, 13 Barb. 50; Rey- 
 nolds c. Reynolds, 5 Paige 161; Safford v. Safford, 7 Paige 259; McLeery 
 v. McLeery, 65 Me. 172, 20 Am. Law Rep. 683; Robinson v. Milleif 2 
 B. Mon. 288. 
 
 20 Bastard's Case, 4 Rep. 122; Geer r. Hamblin, 1 Me. 54; Manning 
 r. Laboree, 33 Me. 343 ; Dunham v. Osborne, 1 Paige 634 ; Reynolds v. 
 Reynolds, 5 Paige 161; Stahl r. Stahl, 114 111. 375; Stevenson V. 
 Brasher (Ky.), 13 S. W. Rep. 242. See Bear v. Snyder, 11 Wend. 
 
 137
 
 116 DOWER. [PART i. 
 
 the elder dowress released her right to the tenant of the free- 
 hold, it is simply an extinguishment of her right, and con- 
 veys nothing to the tenant. The second widow would then 
 be entitled to dower out of the entire estate, as if there had 
 been no superior claim of dower. 21 
 
 116. Decree of sum of money in lieu of dower. In some 
 of the States, it is held competent for the court, where 
 money is assigned instead of dower in the lands, to grant 
 her a gross sum of money instead of an annual share in 
 the income. But the power of the court to do so is limited 
 in other States to cases where parties have agreed upon that 
 mode of settlement. 22 As a rule the amount of money to 
 be paid is calculated upon the chances of life. The tenant 
 in reversion would have to pay to the widow such a sum of 
 money as would equal the present value of the amount of 
 interest which would probably have been paid to the widow 
 during her life, if there had been an assignment of common 
 right, estimating her probable length of life by the ordianry 
 tables of mortality. 23 And if the money value of the wife's 
 
 592. In Illinois, recently, the first wife was held entitled to dower, 
 subject to second wife's homestead and the second wife was then en- 
 titled to dower in the realty remaining and dower in the first as- 
 signment of dower, in case of her survival of the first wife. Potter v. 
 Clapp, 203 111. 592, 68 N. E. Rep. 81. 
 
 2iElwood V. Klock, 13 Barb. 50; Atwood v. Atwood, 22 Pick. 283. 
 But see Leavitt V. Lamprey, 13 Pick. 382, where the court holds that 
 a release or assignment by the elder dowress to the tenant, after judg- 
 ment for recovery of her dower has been rendered, will not entitle the 
 second dowress to dower out of the whole property. 
 
 22Hebert v. Wren, 7 Cranch 370; Johnson v. Elliott, 15 Ala. 112; 
 Lewis t?. James, 8 Humph. 537; Hart V. Burch, 130 111. 426. 
 
 23 Simonton v. Gray, 33 Me. 50 ; Jennison v. Hapgood, 14 Pick. 345 ; 
 Brewer v. Vanarsdale, 5 Dana 204. In Sec. 54 an algebraic formula is 
 given which may be used in the estimation of the present value of the 
 dower right, the annual rents taking the place in the formula of the 
 annual interest on the incumbrance. In South Carolina the gross sum 
 is arbitrarily computed at one-sixth of the fee. Wright r. Jennings, 1 
 Bailey 27 ; Garland v. Crow, 2 Bailey 24. See ante, Sec. 54. 
 138
 
 CH. VII.] DOWER. 117 
 
 dower right is to be ascertained during coverture, the money 
 value of an annuity paid during the joint lives of husband 
 and wife, must be deducted from the present value of the 
 income to be paid to her during her life. 24 
 
 117. Dower barred by jointure. Dower is also barred by 
 jointure, which is a provision made for the wife by the 
 husband out of his property and expressed to be in lieu of 
 dower. 2 "' At common law there were two kinds, legal and 
 equitable. Legal jointure was a provision, made by way of 
 use, an equitable estate for life or in fee; an estate for 
 years was not sufficient. It could not be provided for out 
 of the husband 's personalty, only out of real property ; and 
 if it took the form of an annuity, it had to be made a charge 
 upon land. 26 If it is expressly stated to be in lieu of 
 dower, a provision of that kind would bar dower, even 
 though made by a stranger. 27 Nor is it necessary that the 
 estate should be equal in value to the dower right, if it is ?. 
 substantial provision. 28 At common law legal jointure did 
 not require the assent of the wife or her guardian in order 
 to make it binding upon her, provided it was not fraudulent. 
 Her assent only operated to conclude her from setting up 
 
 2* Strayer v. Long (Va.), 10 S. E. Rep. 574. In Georgia, where a 
 gross sum is allowed, in lieu of dower, the value of her interest should 
 be estimated upon the basis of her age at her husband's death and the 
 value of the lands, when the assignment is made, plus one-third the rents 
 and profits since the husband's death, less a reasonable charge for use 
 and occupation where she has been in possession. Johnson V. Gordon, 
 102 Ga. 350, 30 S. E. Rep. 507. But see, Owens v. Barrell, 88 Md. 
 204, 40 Atl. Rep. 880; Geiger v. Geiger, 57 S. C. 521, 35 S. E. Rep. 1031. 
 
 25 It will not bar the dower, unless the provision is expressly stated 
 to be in lieu of it. Buckinghamshire v. Drury, 2 Eden 72; Bubier r. 
 Roberts, 49 Me. 363; Reed r. Dickermann, 12 Pick. 149; Swaine v. 
 Perine, 5 Johns. Ch. 489; Couch v. Stratton, 4 Ves. 391. 
 
 22 Bla. Com. 137, 138; Vernon's Case, 4 Rep. 1; Caruthers v. 
 Caruthers, 4 Bro. C. C. 500 ; McCartee v. Teller, 2 Paige 562. 
 
 271 Washburn on Real Prop. 316; 1 Cruise Dig. !!)">. 
 
 28 1 Washburn on Real Prop. 116; Drury v. Drury, 2 Eden 57; Buck- 
 inghamshire v. Drury, 76. 75. 
 
 139
 
 117 DOWER. [PART i. 
 
 the charge of fraud. 29 But the rule in this respect, has been 
 changed in many of the States, and the intended wife is 
 now required to be made a party to the deed. 30 Equitable 
 jointure, which is now more largely resorted to in this coun- 
 try, instead of being a formal actual provision, is an executory 
 contract for such .a provision, of which a court of equity 
 will decree specific performance. The intended wife, or her 
 guardian, if a minor, must assent to the jointure, and with 
 such assent it may issue out of either real or personal prop- 
 erty or both, and may assume any form. 31 Both legal and 
 equitable jointure, in order to be a complete bar to dower, 
 must be made before marriage. If it is settled upon the 
 wife after marriage, the widow has the right to elect which 
 she shall take, but she is not entitled to both. 32 Jointures 
 
 2Co. Lit. 36 b; 1 Washburn on Real Prop. 316, 317; Buckingham- 
 shire r. Drury, 2 Eden 64; McCartee v. Teller, 3 Paige 556. 
 
 so Vance v. Vance, 21 Me. 370; Bubier v. Roberts, 49 Me. 463; 1 
 Greenl. Cruise 195, 200. See, also, Kennedy v. Nedrow, 1 Dall. 417; 
 Ambler V. Norton, 4 Hen. & M. 23. A contract by which the wife 
 agreed, before marriage, to release all claims to dower in her husband's 
 lands, but which did not provide for her support after his death, was 
 not enforced, in Missouri, as a contract for equitable jointure. King 
 v. King, 82 S. W. Rep. 101. But see, for enforcement of similar con- 
 tract, Cummings v. Cummings, 25 R. I. 528, 57 Atl. Rep. 302; In re 
 Fennell's Est., 207 Pa. St. 309, 56 Atl. Rep. 875. 
 
 si Drury v. Drury, 2 Eden 39-75 ; Caruthers v. Caruthers, 4 Bro. C. C. 
 500; Cobert V. Cobert, 1 Sim. & Stu. 612; Smith v. Smith, 5 Ves. 189; 
 McCartee V. Teller, 2 Paige 550; Shaw v, Boyd, 5 Serg. & R. 309; 1 
 Washburn on Real Prop. 318, 319; Williams on Real Prop. 236, Rawlr's 
 note. In most of the United States, an ante-nuptial settlement, or 
 agreement, is ineffectual to bar a wife's dower, unless it is based upon 
 a sufficient consideration and the wife's support is provided for. King 
 V. King (Mo. 1904), 82 S. W. Rep. 101; Tiffany, Real Prop. Sec. 
 193, p. 462. But where there is a sufficient consideration 'and her 
 maintenance is assured, under the agreement, the settlement in lieu of 
 dower is enforced. Cummings v. Cummings, 25 R. I. 528, 57 Atl. Rep. 
 302. And. likewise, such a post-nuptial agreement, is enforced. In re 
 Fennell's Estate, 207 Pa. St. 309, 56 Atl. Rep. 875. And, as to an 
 ante-nuptial settlement, the marriage is a sufficient consideration, in 
 Kentucky. Forwood v. Forwood, 86 Ky. 114. 
 
 32 McCartee v. Teller, 2 Paige 559; Drury v. Drury, 2 Eden 64; 
 140
 
 DOWER. 118 
 
 have of late years given way to what are known as marriage 
 settlements, so that they are very rarely met with in actual 
 practice. Whatever form the provision for election may 
 take, if it is avoided for any cause, the dower right revives, 
 at least as against the persons in whose favor it is avoided; 
 as for example, where the marriage settlement is void against 
 existing creditors. Her dower right in that case attaches 
 to the property which is thus subjected to the claim of 
 creditors. 33 
 
 118. Continued By testamentary provision. If the t?s- 
 tator makes provision for his widow in lieu of dower, the 
 widow must elect between that and her dower right. The 
 right of election is a personal one and is not transferable. 
 The provision, if accepted, will be a good bar to dower, 
 though it consists entirely of personality, thus excluding her 
 from her share in the realty. 34 If accepted, it not only bars 
 her dower to lands, of which the husband died seised, but 
 also to those which he had aliened during life. 35 On the 
 other hand, if the testamentary provision is rejected by 
 
 Swaine V. Ferine, 5 Johns. Ch. 482; 1 Washb. on Real Prop. 317; 
 Shane v. McNeill, 76 Iowa, 459; Bottomly v. Spencer, 36 Fed. Rep. 732. 
 In Illinois a wife may release her dower for a consideration, provided 
 the acknowledgment is made according to the provisions of a statute. 
 Bottomly v. Spencer, 36 Fed. Rep. 732. 
 
 ssStrayer v. Long (Va.), 10 S. E. Rep. 574. 
 
 3< Bubier v. Roberts, 49 Me. 463; Hubbard V. Hubbard, 6 Mete. 50; 
 Pollard v. Pollard, 1 Allen 490; Welch v. Anderson, 28 Mo. 293; Asch 
 v. Asch, 47 Hun 285; Smith's Appeal, 60 Mich. 436. It has been held 
 that the right of election in such cases cannot be exercised by any one 
 for her. Thus the guardian or committee of an insane widow cannot 
 make the election. Kennedy V. Johnstone, 65 Pa. St. 451, 3 Am. Rep. 
 650. But this proposition is not supported by all the authorities, not 
 only in consequence of statutory provisions, but independently of them. 
 See Young V. Boardman, 97 Mo. 181. 
 
 ss Allen v. Pray, 12 Me. 138; Chapin v. Hill, 1 R. I. 446; Kennedy 
 r. Mill, 13 Wend. 553; Evans v. Pierson, 9 Rich. 9; Hornsey v. Casey, 
 21 Mo. 545; Fairchild V. Marshall, 42 Minn. 14. Contra, Borland V. 
 Nichols, 12 Pa. St. 38; Higginbotham v. Cornwell, 8 Gratt. 83. 
 
 141
 
 118 DOWER. [PART i. 
 
 her, it lapses into the general estate, of which the testator 
 dies intestate, and becomes subject to the widow's rights 
 under the law. 36 But the intention that the testamentary 
 provision must be taken in lieu of dower, must be made to 
 appear in the terms of the will, either expressly or impliedly, 
 as where the behests of the testator cannot be fully carried 
 out, if dower is claimed together with the provision. If 
 this intention is not established, she might at common law 
 claim both. 37 But in a number of the States by statutory 
 enactment a testamentary provision in favor of the wife is 
 presumed to be in lieu of dower, unless the contrary inten- 
 tion is shown. 38 It has been gravely held that a second 
 
 36 Devecmon v. Shaw, 70 Md. 219. 
 
 37 Herbert v. Wren, 7 Cranch 370 ; Van Order v. Van Order, 10 Johns. 
 30; Adsit V. Adsit, 2 Johns. Ch. 448; Kennedy v. Nedrow, 1 Dall. 418; 
 Duncan v. Duncan, 2 Yeates 302 ; White v. White, 16 N. J. L. 202 ; Hig- 
 ginbotham v. Cornwell, 8 Gratt. 83; Whilden v. Whilden, Riley 205; 
 Pickett v. Peay, 3 Brev. 545; Hall v. Hall, 8 Rich. Eq. 407; Green v. 
 Green, 7 Port. (Ala.) 19; Pemberton v. Pemberton, 29 Mo. 408; Os- 
 trander v. Spickard, 8 Blackf. 227; Yancey v. Smith, 2 Mete. (Ky.) 
 408; Kanovalinka v. Schlegel, 39 Hun 451; Snyder v. Miller, 67 Iowa 
 261; In re Hatch's Est. (Vt.), 18 Atl. Rep. 814; Chase v. Alley, 82 Me. 
 234; Callahan v. Robinson, 30 S. C. 249; Starr v. Starr, 54 Hun 300; 
 Howard v. Watson, 76 Iowa 229. The widow can elect to take a provi- 
 sion in lieu of dower, or to take dower, in Illinois. Hieser v. Sutter, 195 
 111. 378, 63 N. E. Rep. 269. And in Missouri, Rice V. Waddill, 168 Mo. 
 99, 67 S. W. Rep. 605. Kentucky, Redmond r. Redmond, 66 S. W. 
 Rep. 745; and Indiana, Mannan v. Mannan, 55 N. E. Rep. 855. 
 
 38 See Herbert v. Wrenomitch, 7 Cranch 378 ; Bubier r. Roberts, 49 
 Me. 464; Reed v. Dickerman, 12 Pick. 140; Cook v. Couch, 100 Mo. 29; 
 Morgan v. Morgan, 41 N. J. Eq. 235; Hair v. Goldsmith, 22 S. C. 566; 
 Stunz ix Stunz (111.), 3 Me. 407; Griggs v. Veghty (N. J.), 19 Atl. Rep. 
 867; Hastings v. Clifford, 32 Me. 132; Pratt v. Felton, 4 Cush. 174; 
 Kennedy v. Mills, 13 Wend. 556; Thompson v. Egbert, 17 N. J. L. 459; 
 Boone v. Boone, 3 Har. & McH. 93; Pettijohn v. Beasley, 1 Dev. & B. 
 254; Lewis v. Lewis, 7 Ired. Eq. 72; Malone v. Majors, 8 Humph. 577; 
 Ex parte Moore, 1 How. (Miss.) 665; Akin v. Kellogg, 39 Hun 252, s. c. 
 119 N. Y. 44; Chadwick v. Tatem (Mont.), 23 Pac. 729; Bradhurst v. 
 Field, 10 N. Y. S. 452; Pumphrey v. Pumphrey, 52 Ark. 198. But see 
 Merrill v. Emery, 10 Pick. 507, where it is held that if the widow dies 
 during the time prescribed for making the election, she will be pre- 
 142
 
 CH. VII.] DOWER. 
 
 wife, who survives her husband, cannot claim the testamen- 
 tary provision, which had been made for the first wife in 
 lieu of dower. 39 In most of the States, there is also a 
 statutory rule, and if the election is not made within a 
 certain period, usually six months, after the death of the 
 testator, it will be presumed that she has elected to take 
 the testamentary provision. And equity will not relieve 
 against such presumption. 40 Once an election has been made,, 
 it becomes irrevocable, and binds the widow, and all other 
 parties concerned in the estate. 41 
 
 119. Continued By statutory provisions of inheritance, 
 In many of the States, the statutes of Descent and Distri- 
 bution provide for the division of the decedent's estate be- 
 tween his children and his wife, making the wife an heir 
 of her husband, and providing that she shall inherit either 
 a child's part, or some fixed proportion of the estate, abso- 
 lutely. The authorities agree that this statutory provision 
 for inheritance does not abolish dower, but is intended to- 
 be, and must be taken as, in lieu of her dower, and she must 
 elect which of the two interests she must take. 42 Inasmuch 
 as the statutory provision is ordinarily more valuable than 
 the dower right, the natural presumption would be, where 
 there had been a division of the property between the widow 
 and children, that she had elected to take as heir of her 
 husband, instead of the dower right of the widow. But in- 
 asmuch as the estate she takes as heir is subject to the claims. 
 
 sumed to have elected that provision which was most favorable to her. 
 See, also, In re Foster's Will, 76 Iowa 364, where it was held that if she 
 did not elect to take the testamentary provision within six months after 
 notice to her of such provision, she would lose her right of election and 
 be entitled only to her dower right or statutory inheritance. See to> 
 sume effect, Fosher v. Guilliams, 120 Ind. 172; Howard v. Watson, 7ft 
 Towa 229. 
 
 sBurrall r. Hurd, 61 Mich. 608; Burrall v. Clark, 61 Mich. 624. 
 
 Aken v. Kellogg, 115 N. Y. 449. 
 
 Hurley t. Mclver, 119 N. Y. 13. 
 
 4- Shoot v. Galbreath, 128 111. 214. 
 
 143
 
 119 DOWER. [PART i. 
 
 of creditors, and the dower interest is superior to such 
 claims,* 3 it has been held that under those circumstances 
 only her dower right had been allotted to her. 44 The dower 
 right is, however, not inconsistent with her claim of a share 
 under the Statute of Distribution, in her husband's per- 
 sonal estate, as to which he may die intestate. She may 
 claim such distributive share as well as her dower. 45 It 
 has been held in Missouri, under the statute, that if the 
 widow rejects a testamentary provision, she still has the 
 right to elect between her dower, and the distributive share 
 in the estate, although there may be no general intestacy. 48 
 
 "Hunkins v. Hunkins (N. H.), 18 Atl. Rep. 655. 
 
 * Cloyd v. Cloyd, 15 Lea 204. 
 
 Vower's Will, In re, 113 N. Y. 569. 
 
 < Young V. Boardman, 97 Mo. 181. See Rice V. Waddill, 168 Mo. 99, 
 67 S. W. Rep. 605; Redmond v. Redmond, 66 S. W. Rep. 745; Mannan 
 v. Mannan, 55 N. E. Rep. 855; Hieser v. Sutter, 195 111. 378, 63 N. E. 
 Rep. 269. 
 
 144
 
 SECTION IV. 
 
 HOMESTEAD ESTATES. 
 
 SECTION 120. History and origin. 
 
 121. Nature of the estate. 
 
 122. Who may claim homestead. 
 
 123. What may be claimed. 
 
 124. Proceedings for allotment. 
 
 125. Exemption from debt. 
 
 126. How homestead may be lost By alienation. 
 
 127. Continued By abandonment. 
 
 120. History and origin. These estates are not of com- 
 mon-law origin. They are purely statutory and have been 
 in existence only within the last thirty years. The object 
 of their creation is to provide for the family a homestead, 
 which shall be exempt from a levy under execution for the 
 debts of the owner, and save the community from the neces- 
 sity of supporting such persons. The exemption rests only 
 on public policy, and is not given through any sympathy 
 for the debtor. As these estates are created by statute, and 
 each statute varies in its details, it is impossible to do more 
 than present in a general outline the ordinary and usual 
 characteristics of such estates. At present they prevail in 
 almost all of the States of this country. 47 
 
 121. Nature of the estate. As a general proposition, 
 though varying somewhat in the different States, the estate 
 
 47 See Thompson, Homesteads & Exempt. Chap. I. The homestead 
 estate is not necessarily an estate arising out of the marital relation, as 
 unmarried persons, if the head of a family, are given the right of the 
 homestead, exempt from liability for debts, but it is more frequently 
 enjoyed by the husband or wife, than otherwise, and hence is usually 
 treated as an estate growing out of the marital relation. Tiffany, Renl 
 Prop. Sec. 213, p. 503; Arnold r. Waltz, 53 Iowa 70fi. 
 
 10 145
 
 121 HOMESTEAD ESTATES. [PART I. 
 
 is one for the life or lives of those who may claim it, and in 
 most cases the ordinary incidents of life estates would at- 
 tach to it. 48 The most general provision is that it shall be 
 for the life of the husband, to the surviving widow for life 
 or during widowhood, and to the children during minority. 49 
 Unmarried daughters, and dependent daughters in general 
 are sometimes included in the beneficence of the homestead 
 law. 50 The children and widow are jointly entitled to only 
 one homestead. Each cannot claim a separate homestead. 51 
 And when the widow claims it, it is generally granted to her 
 in addition to her dower right. One is not affected by the 
 other. 52 Where there is no widow the estate becomes liable 
 
 <s See Kerley t>. Kerley, 13 Allen 287; Abbott v. Abbott, 97 Mass. 
 136; Black v. Curran, 14 Wall. 403; McDonald V. Crandall, 43 111. 232; 
 Smith f. Estell, 34 Miss. 527; Locke V. Rowell, 47 N. H. 49; Tieman V. 
 Tieman, 34 Texas 525; Howe v. Adams, 28 Vt. 544; Jewett v. Brock, 
 32 Vt. 65; Thompson on Homcst., Sec. 540. Mr. Tiffany objects to the 
 term " estate," being applied to the interest of the homesteader (Tiffany, 
 Real Prop. Sec. 114, p. 506; Sec. 499, p. 1121), but this distinction is 
 more technical than practical, for in many States, the interest is ju- 
 dicially held to be " an estate in land." This is true in Illinois. 
 Roberson v. Tippie, 209 111. 38, 70 N. E. Rep. 584; Alabama, Bailey v. 
 Mercantile Co., 138 Ala. 415, 35 So. Rep. 451; Washington, Whitworth 
 v. McKee, 32 Wash. 83, 72 Pac. Rep. 1046; and New Hampshire, Libbey 
 v. Davis, 68 N. H. 355. An " estate " in real property is generally de- 
 nned as " the nature or extent of one's interest in land " and certainly 
 a homestead right, which is exclusive of all other interests for life, is 
 an " estate " in the homesteader, within the legal meaning of the term. 
 Helm v. Kaddatz, 107 111. App. 413. 
 
 4 Levins r. Rovegno, 71 Cal. 273; In re Gilmore's Est., 81 Cal. 240. 
 
 so Childers f. Henderson, 76 Tex. 664. 
 
 51 Carolina Nat. Bk. v. Senn, 25 S. C. 572 ; Meyer's Guardian v. 
 Meyer's Adm'r (Ky.), 12 S. W. Rep. 933. 
 
 2 Chaplin v. Sawyer, 35 Vt. 290; Mercier v. Chase, 11 Allen 194; 
 Bates r. Bates, 97 Mass. 392; Chisholm v. Chisholm, 41 Ala. 327; 
 Merriman v. Lacefield, 4 Heisk. 222; Walsh v. Reis, 50 111. 477; Bresee 
 v. Stiles, 22 Wis. 120; Lee v. Campbell (Ky.), 1 S. W. Rep. 875; Hay- 
 den v. Robinson, 83 Ky. 615. Contra, McAfee v. Bettis, 72 N. C. 29; 
 Singleton v. Huff, 49 Ga. 584; Butterfield V. Wicks, 44 Iowa 310; David- 
 eon V. Davis, 85 Mo. 440 ; Bryan V. Rhoades, 96 Mo. 485. See Thompson 
 on Homest., Sees. 555-566. The fact that the homestead had been set 
 146
 
 CH. VII.] HOMESTEAD ESTATES. 122 
 
 for debts when the children reach their majority. 63 The home- 
 stead claim only exempts the property from direct liability 
 for debts during the life or minority of the parties for 1 
 whose benefits the homestead is instituted. The reversionary 
 estate is still liable for the debts of the head of the family, and 
 a judgment creditor, by virtue of his lien, has so far a vested 
 interest in the land, subject to the homestead exemption",* 
 as to be able to enjoin the party in possession under the 
 homestead claim from committing waste. The homestead 
 claimant has against his judgment creditors only the rights 
 of a tenant for life or for years. 54 The right of the widow 
 and minor children to claim the homestead, after the death 
 of the husband and father, and the nature of their right, 
 are determined by the law in force at the time when the 
 property devolves upon them, i. e., at the death of such hus- 
 band and father. 55 
 
 * 
 
 122. Who may claim homestead. It is generally pro- 
 vided that any one who can be in any sense denominated 
 the "head of the family," may claim the homestead for their 
 benefit. Thus, the right may be claimed by the husband, 
 and, after his death, by the wife, who generally has the 
 right to claim it for herself, though she may have no chil- 
 dren. 56 It has been held that the wife, during the husband's 
 
 out during the life of the first wife, does not prevent the second wife 
 from claiming such homestead upon the death of the husband. Na- 
 tional Bank v. Shelton, 3 Pickle 393; Nelson v. Commercial Bank. 80 
 Ga. 328; Potter v. Clapp, 203 111. 592, 68 N. E. Rep. 81. 
 
 ssQuinn v. Kinyon, 100 Mo. 551; Childers t>. Henderson, 76 Tex. 664; 
 Zwernean v. Von Rosenburg, 76 Tex. 522; McAndrew v. Hollingsworth- 
 (Ark. 1904), 81 S. W. Rep. 610; Bond r. Montgomery, 56 Ark. 563. 20- 
 S. W. Rep. 525; Simpson v. Scraggins, 182 Mo. 560, 81 So. Rep. 1129.. 
 
 s* Jones v. Britton. 102 N. C. 166. The sale of a homestead, for debt,, 
 will generally vest in the purchaser, the title, after the termination of 
 the homestead. Butler v. Brown, 205 111. 606, 69 N. E. Rep. 44. 
 
 "Tyrell v. Baldwin. 78 Cal. 470. 
 
 Nicholas V. Parezell, 21 Iowa 265; Stilloway v. Brown, 12 Allen 
 34; McKenzie r. Murphy, 24 Ark. 155; Morrison v. McDaniel, 30 Miss. 
 217; Griffin v. Sutherland, 14 Barb. 458; Barney v. Leeds, 51 N. H. 
 
 147
 
 122 HOMESTEAD ESTATES. [PART I. 
 
 life, has the right to claim exemption from her own debts." 
 An unmarried person may also claim it, if he has living with 
 him unmarried sisters and others who are dependent upon 
 him. 58 The tests which are generally applied to doubtful cases, 
 are: 1. Whether there is a legal or moral duty to support the 
 persons who are claimed to constitute the family; and, 
 2. Whether such persons are actually dependent upon him. 50 
 The cases just cited were, where an unmarried man had indi- 
 gent sisters living with him, who were dependent upon him for 
 support. In the same manner an unmarried woman, support- 
 ing the children of a deceased sister or an invalid sister, is 
 under the homestead laws the head of a family. 60 So also the 
 
 2f>6 ; Homestead Cases, 31 Texas 680; Miller v. Finegan (Fla.), 7 So. 
 Rep. 140; Armstrong's Estate, In re, 80 Cal. 71; Fountain v. Hendley, 
 82 Ga. 616. 
 
 57 Morton v. Bradhern, 21 S. C. 375. See, also, to same effect, Belden 
 r. Younger, 76 Iowa, 567; Hill v. Meyers (Ohio), 19 N. E. Rep. 593; 
 Kruger v. LeBlanc, 75 Mich. 424. 
 
 ss Marsh v. Lozenby, 41 Ga. 154; Graham v. Crockett, 18 Ind. 119; 
 Whaley i\ Cadman, 11 Iowa 226; Homestead Cases, 31 Texas, 678. 
 A surviving wife, who resided alone in the residence of her deceased 
 husband, is held entitled to hold such residence as her homestead, in 
 Kansas. Aultman, Miller & Co. v. Price, 75 Pac. Rep. 1019. The 
 sole surviving head of a family is held entitled to a homestead 
 in Arkansas, if he continues to reside thereon. Baldwin r. Thomas 
 (1903), 72 S. W. Rep. 53. Also, in Kentucky, Holburn r. Pfanmillers, 
 Admr., 71 S. W. Rep. 940. But not in Florida. Herrin v. Brown, 33 
 So. Rep. 522. A dependent grandchild is a sufficient family to en- 
 title a householder to a homestead. Ragsdale & Co. v. Watkins (Ky. 
 1003), 76 S. W. Rep. 45; Cross t;. Benson (Kan. 1904), 75 Pac. 
 Rep. 558. See also Baldwin v. Thompson (Ark. 1903), 72 S. W. 
 Rep. 53; Amer. Nat. Bank r. Cruger (Tex. 1902), 71 S. W. Rep. 784. 
 A minor nephew, in Illinois, whom a householder has agreed to sup- 
 port and is supporting, is such a person, dependent for support, upon 
 the householder, as to entitle him to a homestead. Stodgell V. Jackson, 
 111 111. App. 256. 
 
 5 Whaley r. Cadman, 11 Iowa, 226; Blackwell v. Broughton, 50 Ga. 
 390; Connaughton v. Sands, 32 Wis. 387; Wade V. Jones, 20 Mo. 75. 
 
 o Arnold v. Waltz, 53 Iowa, 706 ; 36 Am. Rep. 248 ; Chamberlain V. 
 Brown (S. C.), 11 S. E. Rep. 952; Moyer v. Drummond (S. C.), 10 
 S. E. Rep. 952. 
 14$
 
 CH. VII.] HOMESTEAD ESTATES. 123 
 
 guardian of a minor. 61 But an unmarried man, having his 
 brother and brother's wife living with him, is not the "head 
 of a family." 62 And likewise an unmarried man, having no 
 dependent relatives, keeping house alone with his servants 
 and farm hands, or with children who are not dependent 
 upon him, does not constitute the ' ' head of the family. ' ' 63 
 But the father living with an adult son after the death of 
 the wife, can claim homestead. 64 And so, also, a husband 
 living alone, after divorce from his wife, although the cus- 
 tody of the children had not been awarded him. 65 But not 
 a widower without dependents. 66 In making the declaration 
 of homestead, it is not necessary for the declarant to show 
 on what grounds he claims to be the head of a family. It 
 suffices, until it is disputed, for him to allege that he is the 
 head of a family. 67 In some of the States, homestead is 
 denied to one who carries on an illegal business, such as 
 gambling. 68 
 
 123. What may be claimed. A homestead, as defined by 
 the courts, is the place where one dwells. It is his residence. 
 And the same rules and principles apply to the homestead, 
 which govern the determination of what is one's domicile. 69 
 
 fli Roundtree v. Dennard. 59 Ga. 629; 27 Am. Rep. 235. 
 
 02 Whalen v. Cadman, 11 Iowa, 226. 
 
 sCalhoun v. Williams, 32 Gratt. 18; 34 Am. Rep. 759; Garaty v. Du- 
 bose, 5 S. C. 498; Calhoun r. McLendon, 42 Ga. 406; Bosquett v. Hall 
 (Ky.), 13 S. W. Rep. 244. 
 
 a* Rollings v. Evans, 23 S. C. 316. 
 
 85 Zapp v. Strohmeyer, 75 Tex. 638. 
 
 Ellis v. Davis (Ky.), 14 S. W. Rep. 74. 
 
 7 Jones v. Waddy, 66 Cal. 457. In Washington, California and 
 Idaho, a declaration of homestead must be filed and recorded, during 
 the life of the householder and if not done, the property vests in his 
 heirs. Lloyd v. Lloyd (Wash. 1904), 74 Pac. Rep. 1061; Harris v. 
 Duarte (Cal. 1904), 75 Pac. Rep. 58; Mellen v. McMannis (Idaho 
 1904), 75 Pac. Rep. 98. 
 
 8Tillman v. Brown, 64 Tex. 181. But see contra, Prince v. Hake, 75 
 Wis. 638. 
 
 8 Davis v. Andrews, 30 Vt. 678; Austin v. Stanley, 46 N. H. 51; 
 Barney f. Leeds, 51 N. H. 265; Rogers v. Ragland, 42 Texas, 443. 
 
 149
 
 123 HOMESTEAD ESTATES. [PART I. 
 
 It is manifest, therefore, that, while one may have two or 
 more residences, he can have but one homestead, and that 
 one must be wherever his legal domicile is. 70 In order that 
 the homestead right may be claimed in a lot or parcel of 
 land, it must be shown to be the bona fide residence of him 
 and his family. An intention to make it such will give no 
 right. 71 The party claiming homestead must also be in pos- 
 session of the land in his own right. Thus a remainderman, 
 living with the tenant for life, cannot by virtue of such a 
 possession . claim the right of homestead. 72 But the use of a 
 part of the premises for business or renting purposes will not 
 prevent the homestead right from attaching. 73 So, also, it 
 
 TO Cornish V. Frees, 75 Wis. 490; Little V. Baker (Tex.), 11 S. W. 
 Rep. 549. 
 
 "Elston v. Robinson, 23 Iowa, 208; Lee v. Miller, 11 Allen, 38; 
 Norris v. Moulton, 34 N. H. 394; Smith v. Wells, 46 Miss. 71; Cook V. 
 McChristian, 4 Cal. 24; Prescott v. Prescott, 45 Cal. 58; Tousville V. 
 Pierson, 39 111. 453; Kitchell v. Burgwin, 21 111. 40; Christy v. Dyer, 14 
 Iowa, 440 ; Currier V. Woodward, G2 N. H. 63 ; Lake v. Nolan ( Mich. ) , 
 45 N. W. Rep. 376; Steenburger v. Greenwood (Ark.), 13 S. W. Rep. 
 702; In re Crowley, 71 Cal. 300; Gerrish v. Hill (N. H.), 19 Atl. Rep. 
 1001 ; First Nat. Bank v. Hillinsworth, 78 Iowa, 575. An intent to 
 reside on the property, as a homestead, is never sufficient. It requires 
 actual occupancy. White v. Danforth ( Iowa, 1904 ) , 98 N. W. Rep. 
 136; Higgins v. Higgins (Ky. 1904), 78 S. W. Rep. 1124; Zollinger V. 
 Dunaway (Mo. 1904), 78 S. W. Rep. 666. But where homestead is 
 actually occupied by a widow, it is immaterial that she had, in her 
 own right, property better fitted for her homestead. Wilmoth V. Gos- 
 sett, 71 Ark. 594; 76 S. W. Rep. 1073; Sansberry v. Sims, 79 Ky. 527; 
 Ex parte Brown, 37 S. C. 181; 15 S. E. Rep. 926. 
 
 72 Cornish v. Frees, 74 Wis. 490. See to same effect, Meigs v . Dibble, 
 73 Mich. 101. 
 
 "Hogan v. Manners, 23 Kan. 551; 33 Am. Law Rep. 199; Smith v. 
 Quiggans, 65 Iowa, 637; Lubbock v. McMann, 82 Cal. 226; Parr v. 
 Newby, 73 Tex. 468; Jacoby v. Parkland Distilling Co., 41 Minn. 227; 
 see Allen, In re, 78 Cal. 293. But see Rhodes v. McCormick, 4 Iowa, 
 368; Kurz v. Brusch, 13 Iowa, 371. The fact that part of the home- 
 stead is rented, where the house is in two apartments, does not deprive 
 the homesteader of his rights, in Missouri. Adams r. Adams, 183 Mo. 
 396; 82 S. W. Rep. 66. See, also, Pratt v. Pratt, 161 Mass. 276; 37 
 N. E. Rep. 435; Layson v. Grange, 48 Kansas 440, 29 Pac. Rep. 585. 
 150
 
 CH. VII.] HOMESTEAD ESTATES. 123 
 
 has been held that homestead cannot be claimed jointly with 
 another. 74 For the same reason, a partner cannot claim 
 homestead in partnership property. 75 But if a joint es- 
 tate is subsequently partitioned, so as to enable an actual 
 and exclusive occupation of one's divide interest, the home- 
 stead will attach from the declaration of an intention to 
 claim homestead. 70 
 
 Lands and houses rented out cannot as a general rule be 
 claimed as homestead. 77 But it has been held that the claim 
 of homestead may be made, notwithstanding the claimant 
 lives on another tract of land, which he rents because there 
 is no house on the land which he owns. The land he owns 
 will be treated under these circumstances to be a part of 
 the rented land on which he resides. The absence of a 
 house on the land which he owns makes it impossible for 
 him to reside there. 78 But where the party owns both tracts 
 of land he cannot claim homestead in the tract on which he 
 does not reside. 79 Nor can the claim be made to property 
 worth more than the sum laid down by the statute of the 
 State. When the debtor wishes to claim the homestead, it 
 
 7* Cornish V. Frees, 74 Wis. 490. But see contra, O'Brien v. Krenz, 
 36 Minn. 136; Ward v. Huhn, 16 Minn. 159; Oswald v. McCuley 
 (Dak.), 42 N. W. Rep. 769. 
 
 75 Drake v. Moore, 66 Iowa, 58. 
 
 7 Miller v. Bennett (Ky.), 12 S. W. Rep. 194. 
 
 77Folsom r. Carli, 5 Minn. 337; Kelly v. Baker, 10 Minn. 154; Ash- 
 ton v. Ingle, 20 Kan. 670; 27 Am. Law Rep. 197. 
 
 78 Rogers v. Ashland Sav. Bank, 63 N. H. 428; Mills v. Hobbs, 76 
 Mich. 122. 
 
 7 Semmes v. Wheatley (Miss.), 7 So. Rep. 430; Rhyne V. Guevara, 
 6 So. 736; Pfeiffer v. McNatt, 74 Tex. 640; Vanmeter v. Vanmeter'a 
 Assignee (Ky.), 13 S. W. Rep. 924; Beard V. Johnson, 87 Ala. 729; 
 Armstrong's Estate, In re, 80 Cal. 71. The vendee in an executory 
 contract for the sale of land, is held entitled to his homestead in the 
 property, in Minnesota. Hook v. N. W. Thresher Co. (Minn. 1904), 98 
 N. VV. Rep. 463. A homestead may be claimed in leased lands. White 
 v. Danforth (Iowa, 1904), 98 N. W. Rep. 136; Bailey v. Dunlap Co., 
 138 Ala. 415; 35 So. Rep. 451. But see, as to "cropper," in Texas, 
 Webb v. Garrett, 70 S. W. Rep. 992. 
 
 151
 
 123 HOMESTEAD ESTATES. [PART I. 
 
 is necessary that it should in some way be ascertained and 
 set out. But the homestead is exempt from levy, although 
 it is not actually set out. 80 The occupation, or declaration 
 to claim as homestead, must be made before the property 
 has been attached. 81 Minute details in regard to this mat- 
 ter are in some States prescribed by the statutes. 82 But the 
 general rule is that the debtor must select the land which he 
 desires for a homestead, keeping within the limit as to value. 
 The value of the homestead is determined by the consider- 
 ation of the estate which is owned by the claimant, whether 
 it be a life estate or a fee: that is, its whole market value 
 is the guide, and not the market value of the life estate. 83 
 If the value of the property exceeds the limit, it may be par- 
 titioned and set out by appraisers at the instance of creditors ; 
 and if it is not divisible, the property may be sold, and the 
 sum allowed by statute will be set apart, and in most cases 
 invested by the court in a homestead; while the remainder 
 of the purchase-money will be devoted to the liquidation of 
 the debts. 84 If the homestead should increase in value, after 
 being set out, the creditors cannot make any claim for a new 
 assignment of the homestead within the statutory limit as 
 to value. 85 
 
 so King f. McCarley (S. C.), 10 S. E. Rep. 1075; Swandale v. Swan- 
 dale, 25 S. C. 389; Bridwell v. Bridwell, 76 Ga. 627; Little v. Baker 
 (Tex.), 11 S. W. Rep. 549; Riggs V. Sterling, 60 Mich. 643. See Mc- 
 Loy v. Arnett, 47 Ark. 445. 
 
 si Reynolds r. Tenant, 51 Ark. 84. 
 
 82 See Thompson on Homest. Sees. 230, 236. In many of the States, 
 the homestead right only attaches after the filing and recording of 
 the deed thereto and as to debts previously existing, the property is 
 liable to attachment or execution levy and sale. Loring v. Groomer, 
 142 Mo. 1, 43 S. W. Rep. 647. 
 
 ssYates r. McKibben, 66 Iowa 357; Squire v. Mudgeth, 63 N. H. 428; 
 Brown r. Starr, 79 Cal. 608. 
 
 "I Washburn on Real Prop. 366, 380; Thompson on Homest., Sees. 
 230, 236. 
 
 85 J n re Walkerley's Estate, 81 Cal. 5/9; Turner's Guardian t/v 
 Turner's Heirs & Creditors (Ky.), 13 S. W. Rep. 6; McLane v. PaschnL 
 152
 
 CH. VH.] HOMESTEAD ESTATES. 124 
 
 124. Proceedings for allotment. The manner of allotting 
 the homestead estate, to one entitled thereto, differs in the 
 different States. In some a claim or declaration being made 
 in the court where the homestead is recorded, 80 while in 
 others, the probate or county courts, according to the juris- 
 diction of the particular court, under the statutory pro- 
 ceedings governing the subject, have power to set off the 
 homestead, on the death of the householder. 87 Generally, 
 any court, having common law jurisdiction, would have 
 power to recognize the claim of exemption, by a homesteader 
 and to entertain a suit to set off the homestead 88 and where 
 creditors attempted to force a sale of property rightfully 
 claimed as a homestead, by the head of a family, a court of 
 equity would entertain a bill for an injunction, to restrain 
 a sale thereof. 80 The burden of proof is generally held to be 
 on the party claiming the homestead to show that the land 
 claimed as such was susceptible of being made the basis of 
 the claim, that it was actually used as a homestead and that 
 the tract claimed did not exceed in value the amount subject 
 to the claim. 90 And where the evidence upon the different 
 
 74 Tex. 20; Mills v. Hobbs, 76 Mich. 122; Fowler's Estate (Cal), 20 
 Pac. Rep. 81. 
 
 86 Otto V. Long, 144 Cal. 144; 77 Pac. Rep. 885. The order setting 
 apart the homestead cannot be collaterally assailed. Otto v. Long, 
 supra. But see, where court is without jurisdiction. Williams v. 
 Whitaker, 110 N. C. 393; 14 S. E. Rep. 924; Watts r. Miller, 76 Tex. 13. 
 
 8? County Court has jurisdiction, in Nebraska. Tyson v. Tyson, 98 
 N. W. Rep. 1076. Where heirs of the deceased husband are in adverse 
 possession, the probate court has no authority to entertain a suit by 
 the widow to set off the homestead, in v Arkansas. James v. James, 
 80 S. W. Rep. 148. By statute, in Texas, the homestead cannot be 
 partitioned, during the life of the homesteader. Flynn v. Hancock, 80 
 S. W. Rep. 245. 
 
 ssAtlee f. Bullard, 123 Iowa, 274, 98 N. W. Rep. 889; Simpson v. 
 Scroggins, 182 Mo. 560, 81 S. W. Rep. 1129. 
 
 Cooper Grocery Co. v. Peter (Tex. 1904), 80 S. W. Rep. 108; 
 Harris v. Mathews, 81 S. W. Rep. 1198. 
 
 oo Harris v. Mathews, 81 S. W. Rep. 1198. By statute, in Alabama, 
 
 153
 
 125 HOMESTEAD ESTATES. [PART I. 
 
 issues are disputed it is held to be a question of fact for 
 the jury to determine, whether the land was the proper sub- 
 ject of the homestead claim and if it was actually used as a 
 homestead by the claimant or if it had been abandoned 
 prior to the claim thereto. 91 
 
 125. Exemption from debt. The exemption of the home- 
 stead from liability for the debts of the owner is various in 
 its extent, sometimes absolute, referring to all classes of 
 debts, and sometimes more or less limited to particular 
 obligations, depending altogether upon the special provisions 
 of each statute. But, perhaps the most general rule is, ex- 
 emption from liability for all debts, except taxes, and such 
 debts which create a lien upon the premises, such as for the 
 purchase money, or judgment debts, where such judgment 
 has been obtained prior to the attachment of the home- 
 stead. 02 In this connection it may be stated that the home- 
 stead can, under no circumstances, be claimed against debts 
 contracted prior to the passage of the homestead and ex- 
 emption laws. 93 But a judgment obtained before the pur- 
 chase of the property, or before actual occupation, will not 
 attach to the property when bought or occupied, to the ex- 
 
 the burden is on the creditor. Bailey V. Dunlop Co., 138 Ala. 415, 35 
 So. Rep. 451. 
 
 01 Mathewson v. Kilburn, 183 Mo. 110, 81 S. W. Rep. 1096; Mac- 
 avenny v. Ralph, 107 111. App. 542. 
 
 2 See Thompson on Homest., Sees. 290-388; Withers V. Jenkins, 21 
 S. C. 365; Lowdermilk v. Corpening, 92 N. C. 333; Finnegan v. Prinde- 
 ville, 83 Mo. 517; King v. Goetz, 70 Cal. 236; Halcomb v. Hood (Ky.), 
 
 I S. W. Rep. 401; Hendrix 1;. Seaborn, 25 S. C. 481; Burnside f. Wat- 
 kins (S. C.), 10 S. E. Rep. 960; McWatty v. Jefferson Co., 76 Ga. 352; 
 Meader r. Meader (Ky.), 10 S. W. Rep. 651; Greer v. Oldham (Ky.), 
 
 II S. W. Rep. 73; Cornish v. Frees, 74 Wis. 490; Bell v. Wise (Ky.), 
 11 S. W. Rep. 717; Smith v. Richards (Idaho), 21 Pac. Rep. 419. 
 
 3 Homestead Cases, 22 Gratt. 266, 12 Am. Rep. 507 ; Garrett V. 
 Cheshire, 69 N. C. 396; 12 Am. Rep. 647; Gunn v. Barry, 15 Wall. 610: 
 Lowdermilk v. Corpening, 92 N. C. 333; Wright v. Straub, 64 Tex. 64; 
 Cohn r. Hoffman, 45 Ark. 376; Long v. Walker, 105 N. C. 90; Shaffer 
 V. Hahn, 105 N. C. 121. 
 154
 
 CI1. VII. J HOMESTEAD ESTATES. 126 
 
 elusion of the homestead right, where the purchase was made 
 for the expressed purpose of securing a homestead. 94 And 
 the homestead claim is held to have precedence over a debt 
 contracted for the purpose of borrowing money which was 
 expended in the purchase of the homestead. 95 So, also, if 
 the debts were contracted before marriage, but they did not 
 constitute liens upon the land, the homestead right would 
 attach and take precedence to the claims of such creditors. 96 
 In some of the States it is expressly provided by statute that 
 debts contracted in making improvements on the homestead 
 shall have precedence over the homestead claim. 97 
 
 126. How homestead may be lost By alienation. The 
 attachment of the homestead right does not take away al- 
 
 9 * Gardner v. Douglass, 64 Tex. 76; Cogwell V. Warrington, 66 Iowa, 
 666; Van Ratcliff r. Call, 72 Tex. 491; Neumaier v. Vincent, 41 Minn. 
 481. 
 
 5 Hale v. Richards (Iowa), 45 N. W. Rep. 734. See, also, contra, 
 Roy v. Clark, 75 Tex. 28; McWilliams V. Bones, 84 Ga. 203. A home- 
 stead is generally liable for debts existing before its acquisition. Fer- 
 guson v. Waller & Co. (Tex. 1903), 76 S. VV. Rep. 609; Emrich V. 
 Gilbert Co., 138 Ala. 316; 35 So. Rep. 322; Edinger v. Bain (Iowa, 
 1904), 98 N. W. Rep. 568; Roark v. Bach (Ky. 1903), 76 S. W. Rep. 
 340; Walker v. Walker, 117 Iowa, 609; 91 N. W. Rep. 908. On death 
 of the widow and majority of the debtor's children, the homestead 
 generally is held an asset of his estate. McAndrew v. Hollingsworth 
 (Ark. 1904), 81 S. W. Rep. 610; Winters v. Davis, 51 Ark. 335, 11 
 S. W. Rep. 420; Simpson v. Scroggins, 182 Mo. 560; 81 S. W. Rep. 
 1129; Phillipps V. Pressen, 172 Mo. 24; 72 S. W. Rep. 501. In most 
 of the States, obligations for the repair or betterment of the home- 
 stead, are valid charges against it. Butler v. Brown, 205 111. 606, 69 
 N. E. Rep. 44. The proceeds of the sale of a homestead are generally 
 exempt, the same as the homestead. Lee & Hester v. Hughes (Ky. 
 1903), 77 S. W. Rep. 386; Canney v. Canney (Mich. 1902), 91 N. W. 
 Rep. 620. And so, generally, is property purchased with proceeds. 
 Slattery v. Keefe, 201 111. 483; 66 N. E. Rep. 365; Richards v. Orr 
 (Iowa 1902), 92 N. W. Rep. 655. 
 
 Dye v. Cook, 88 Tenn. 275 ; King v. Goetz, 70 Cal. 236. 
 
 "All v. Goodson (S. C.), 21 S. E. Rep. 703; McWilliams v. Bones, 
 84 Ga. 203; Richards v. Shears, 70 Cal. 187. An ungathered crop on 
 the homestead of the debtor is exempt from sale for his debts. Parker 
 t>. Hale (Tex. 1903), 78 S. W. Rep. 555. 
 
 155
 
 126 HOMESTEAD ESTATES. [PART I. 
 
 together the power of alienation. It is the subject of sale, 
 mortgage, and release, as if no homestead right had existed. 
 But for the complete conveyance of the title and effectual 
 barring of the homestead right, it is generally necessary that 
 the wife should join in the deed of conveyance. 98 And if a 
 conveyance or mortgage is invalid, because there has not been 
 a proper release of the homestead right, a subsequent aban- 
 donment of the homestead will not cure the defect. 09 In 
 some States the mortgage of the homestead is prohibited al- 
 together. 1 However, if the homestead is also limited to the 
 minor children during their minority, a conveyance by the 
 widow would not bar the children's claim of homestead, and 
 they can, on the death of the mother, during their minority, 
 
 v. Gerrard, 6 Cal. 71; Bearing v. Thomas, 25 Cal. 224; Burn- 
 side r. Terry, 45 Ga. 629; Greenough v. Turney, 11 Gray, 334; Morris 
 V. Moulton, 34 N. H. 394; Re Cross, 2 Dill. 320; Sears v. Hanks, 14 
 Ohio St. 298; (Mm V. Nelms, 78 Ala. 604; Rhea v. Rhea, 15 Lea, 527; 
 Riecke V. Westenhoff, 85 Mo. 642; Schermerhorn v. Mahaffie, 35 Kan. 
 108; Aultman & Taylor Co. v. Jenkins, 19 Neb. 209; Chopin v. Runte, 
 75 Wis. 361; Louisville Bkg. Co. v. Leonard (Ky), 13 S. W. Rep. 521; 
 Grimes v. Portman, 99 Mo. 229; Peck v. Ormsby, 55 Hun, 265; Hall v. 
 Loomis, 63 Mich. 709; Bunting v. Saltz, 84 Cal. 168; Duncan v. Moore 
 (Miss.), 7 So. Rep. 221; Franklin Land Co. t?. Wea Gas, etc., Co., 43 
 Kan. 518; Betts v. Sims, 25 Neb. 166; Hemphill v. Haas (Ky.), 11 
 S. W. Rep. 510; Riggs v. Sterling, 60 Mich. 643. 
 
 Bruner v. Bateman, 66 Iowa, 488; Belden v. Younger, 76 Iowa, 567. 
 
 i Smith v. Hutton, 75 Tex. 625; Planters', etc., Bank v. Dickenson, 
 83 Ga. 711; Texas Land, etc., Co. v. Blalock, 76 Tex. 85. Most of the 
 csaes hold, that since there can be no fraudulent conveyance of a home- 
 stead, a claim to a homestead may be made, even after a fraudulent 
 conveyance thereof. Smith v. Kerr, 2 Dill. (U. S.) 50; McFarland v. 
 Goodman, 6 Biss. (U. S.) Ill; Kennedy v. Nat. Bank, 107 Ala. 170; 
 Turner v. Vaughan, 33 Ark. 454; Jaffers v. Aneals, 91 111. 487; Thom- 
 ason v. Neely, 50 Miss. 310; State V. Diveling, 66 Mo. 375; Dortch v. 
 Benton, 98 N. C. 190; Hatcher V. Crews, 83 Va. 371. But see, contra, 
 Minor v. Wilson, 58 Fed. Rep. 616; Gideon v. Struve, 78 Ky. 134. 
 Since a homestead is exempt, in law, from the debts of the house- 
 holder, creditors cannot claim that a conveyance of a homestead, from 
 husband to wife, is a fraudulent conveyance. Wetherly r. Strauss, 93 
 Cal. 283; Boyd v. Barnett, 24 111. App. 199; Golsbitch v. Ranibon, 84 
 Iowa, 567; Whayne V. Morgan (Ky.), 12 S. W. Rep. 128; Kelly V. 
 156
 
 CH. VII.] HOMESTEAD ESTATES. 126 
 
 assert their claim of homestead against their mother's pur- 
 chaser. 2 
 
 The conveyance must conform in every respect to the or- 
 dinary rules of conveyance. 3 And when the homestead law 
 requires a peculiar form of acknowledgment, in order to 
 release the homestead right, the conveyance will be inef- 
 fectual for that purpose, if the provisions of the law are not 
 strictly complied with. 4 But even when the proper form 
 of acknowledgment is employed, if the deed contains an ex- 
 press declaration that its execution by the wife is "solely 
 for the purpose of relinquishing her dower interest in the 
 land," the homestead right is not, as to her, affected by 
 such conveyance. 5 
 
 Fraud, in the procurement of the wife's renunciation of 
 the homestead, will, of course, vitiate the transaction; and 
 it has been held that she could claim her homestead even 
 against a grantee, who was not a party to the fraud. 6 But 
 the renunciation of the homestead right by the wife, is only 
 necessary to the validity of a conveyance by the husband, 
 when the homestead right had been established, and the 
 homestead set out, under the provisions of the homestead 
 law. A conveyance prior to such establishment of the home- 
 
 Connell (Ala.), 18 So. Rep. 9; Burdge v. Bolin, 106 Ind. 175; Robb v. 
 Brewer, 60 Iowa, 539; Roberts v. Robinson, 49 Neb. 717, 68 N. W. Rep. 
 1035; Plummer v. Rohman (Neb.), 84 N. W. Rep. 600; Steiner v. 
 Berney (Ala. 1901), 30 So. Rep. 570, 8 Amer. & Eng. Dec. Eq. 261. 
 
 2 Rogers V. Mayes, 84 Mo. 520 ; Rhoder v. Brockhage, 86 Mo. 544. 
 
 3 Jones v. Robbins, 74 Tex. 615; Winkleman v. Winkleman (Iowa), 
 44 N. W. Rep. 556; Borehan v. Byrne, 83 Cal. 23; Yocum v. Lovell, 111 
 111. 212; Shelton r. Aultman & Taylor Co., 82 Ala. 315; Jones v. Roper, 
 86 Ala. 210. 
 
 *See Wheeler v. Gage, 28 111. App. 427; s. c. 129 111. 197; Razor v. 
 Dowan (Ky.), 13 S. VV. Rep. 914; Kimmell f. Caruthers (Ky.), 1 
 S. \V. Rep. 2; Boreham v. Byrne, 83 Cal. 23; Gage v. Wheeler, 128 
 111. 197. 
 
 'Thompson r. Sheppard, 85 Ala. 611. 
 
 Barker v. Barker (Neb.), 42 N. W. Rep. 889. 
 
 157
 
 126 HOMESTEAD ESTATES. [PART I. 
 
 stead needs no renunciation of the right, in order to make 
 perfect the title of the purchaser. 7 
 
 That a conveyance by husband and wife for a valuable 
 consideration will pass their title to the grantee free from the 
 claims of creditors, is established beyond a doubt. 8 But it 
 has been held that the voluntary conveyance to a third per- 
 son without consideration, is an act of abandonment, a fraud 
 upon creditors, and the creditors may attach the property 
 in the hands of the grantee. 9 An alienation of the home- 
 stead for a substantial consideration conveys the whole title 
 and the proceeds of sale are to be re-invested in a home- 
 
 i Hughes r. Hodges, 102 N. C. 236, 262. A conveyance by the husband 
 alone, of a homestead, is held void, in the following cases: Penn v. 
 Case (Tex. 1904), 81 S. W. Rep. 349; Alvis V. Alvis, 123 Iowa, 546; 
 99 N. W. Eep. 166; Collins v. Bounds (Miss. 1904), 36 So. Rep. 689; 
 Helgebye v. Dammen (N. D. 1904), 100 N. W. Rep. 245; Solt v. Ander- 
 son (Neb. 1904), 99 N. W. Rep. 678; Way v. Scott (Iowa, 1902), 91 
 N. W. Rep. 1034; Keisewetter v. Kress (Ky. 1902), 70 S. W. Rep. 1065; 
 Hubbard v. Sage Land Co. (Miss. 1903), 33 So. Rep. 413. Where a 
 statute requires the wife to join in conveyances of the homestead, a 
 conveyance from husband to wife, in which she does not join, is held 
 void, in Illinois. Robertson v. Tippie, 209 111. 38, 70 N. E. Rep. 584; 
 Hogue v. Steel, 207 111. 340; 69 N. E. Rep. 931. But such a convey- 
 ance, under a similar statute, is upheld, in Arkansas. Kindley v. 
 Spraker (1904), 79 S. W. Rep. 766. See, also, Turner v. Burnheimer. 
 95 Ala. 241; 10 So. Rep. 750; Burkett v. Burkett, 78 Cal. 310; 20 Pac. 
 Rep. 715; 3 L. R. A. 781 ; Harsh v. Griffin, 72 Iowa, 608, 34 N. W. Rep. 
 441; Lynch V. Doran, 95 Mich. 395; 54 N. W. Rep. 882; Furrow v. 
 Athey, 21 Neb. 671, 33 N. W. Rep. 208; Beedy f. Finney (Iowa, 1902), 
 91 N. W. Rep. 1069. 
 
 s Bowman V. Norton, 16 Cal. 214; Deffeliz v. Pico, 46 Cal. 289; Bon- 
 nell V. Smith, 53 Cal 377; Parker v. Parker, 88 Ala. 362; Ray v. Yar- 
 nell, 118 Ind. 112; Maynard v. May (Ky.), 11 S. W. Rep. 806; Thomp- 
 son v. Sheppard, 85 Ala. 611. 
 
 Currier V. Sutherland, 54 N. H. 475, 20 Am. Rep. 143; Jones v. 
 Currier, 65 Iowa, 533; Campbell v. Jones, 52 Ark. 493. But see Dient- 
 zer V. Bell, 11 Wis. 114; Wienbrenner r. Weisinger, 3 B. Mon. 33; 
 Planters' Bank v. Henderson, 4 Humph. 75; Garrison v. Monaghan, 33 
 Pa. St. 232; Rankin v. Shaw, 94 N. C. 405; Beard v. Blum, 64 Tex. 59; 
 Willis v. Mike, 76 Tex. 82; Fordyce V. Hicks (Iowa), 45 N. W. Rep. 
 750; Maynard v. May (Ky.), 11 S. W. Rep. 806. 
 158
 
 CH. VII.] HOMESTEAD ESTATES. 127 
 
 stead, otherwise they become subject to the claims of cred- 
 itors. 10 If, however, the alienation consists of a mortgage 
 of the land, the homestead right will have been lost only 
 as to the mortgagee and persons claiming under him. 11 
 There may of course be a direct exchange of homesteads, and 
 the same homestead rights will attach to the new property 
 thus acquired. 12 And if partition is made of the premises 
 in which the homestead has been claimed, the homestead 
 would attach to the claimant's share in the proceeds of sale. 13 
 
 127. Continued By abandonment. The homestead may 
 also be lost by acts which constitute an abandonment of the 
 homestead ; such would be a permanent removal from the 
 homestead where actual residence is required to support the 
 right, or the acquisition of a new homestead. 14 The inten- 
 tion of abandonment, and actual abandonment, must co-exist. 
 
 10 Smith v. Gore, 23 Kan. 88, 33 Am. Rep. 158; City Bank v. Smisson, 
 73 Ga. 422; Skinner v. Chadwell (Ky), 1 S. W. Rep. 437; Kirby V. Gid- 
 dings, 74 Tex. 679; Mann v. Kelsey, 71 Tex. 609; Lane v. Richardson, 
 104 N. C. 642. It has, however, been held that homestead exemption 
 can be claimed in proceeds of the sale of the old homestead, although 
 the proceeds have not been re-invested in an actual homestead. See 
 Turner's Guardian v. Turner's Heirs and Creditors (Ky.), 13 S. VV. 
 Rep. 6. 
 
 11 King v. Goetz, 70 Cal. 236; First Nat. Bank v. Briggs, 22 111. App. 
 228; White v. Fulghum, 3 Pickle, 281. 
 
 "Creath v. Dale, 84 Mo. 349; City Bank v. Smisson, 73 Ga. 422. 
 Plummer v. Rohman (Neb. 1900), 84 N. W. Rep. 600, 7 Amer. & Eng. 
 Dec. in Eq. 379; Jamison r. Weaver, 87 Iowa, 72; Breshanan r. Nu- 
 gent, 92 Mich. 76; Bell V. Boosley, 18 Tex. Civ. App. 639. But see Pool 
 v. Reid, 15 Ala. 826; Bennett v. Hudson, 33 Ark. 762. 
 
 "Swandale v. Swandale, 25 S. C. 389. 
 
 "Stewart v. Mackey, 16 Texas, 38; Gonhenant v. Cockrell, 20 Texas, 
 96; Titman v. Moore, 45 111. 169; Woodbury v. Luddy, 14 Allen, 1; 
 Howe V. Adams, 28 Vt. 544; Ross f. Hellyer, 26 Fed. Rep. 413; Foster 
 v. Leland, 141 Mass. 187; Reifenstahl v. Osborne, 66 Iowa. 507: Wilson 
 r. Daniels (Iowa), 44 N. W. Rep. 1246; Feldes v. Duncan, 30 111. App. 
 469; Hutch v. Holly, 77 Tex. 220; Milburn Wagon Co. v. Kennedy, 75 
 Tex. 212; Smith v. Mattingly (Ky.), 13 S. W. Rep. 719; MeAlpine v. 
 Powell (Kan), 24 Pac. Rep. 1353; Langston r. Maxey, 74 Tex. 576; 
 Welborne v. Downing, 73 Tex. 527. 
 
 159
 
 127 HOMESTEAD ESTATES. [PART I. 
 
 The intention of permanent removal does not affect the con- 
 tinuance of the homestead right, as lone: as there is no actual 
 abandonment. 18 But the abandonment is an accomplished 
 fact, where the only continued occupation consists of the 
 temporary storage of some goods on the place. 10 A tempo- 
 rary absence, animo revert endi, will not cause an abandon- 
 ment. 17 Nor does a forced absence from the homestead, it 
 mailers not for how long a time, constitute an abandon- 
 ment. 18 
 
 It is always a question of fact for the jury whether there 
 has been an abandonment. 19 The statutes sometimes provide 
 that the abandonment must be manifested by certain acts, 
 or a written acknowledgment under which circumstances, 
 abandonment cannot be proven in any other way. 20 The 
 fact that the husband abandons the homestead has been 
 
 i Kauffman v. Fore, 73 Tex. 308. 
 
 "Tomlinson v. Swinney, 22 Ark. 400; Wood f.'Lord, 51 N. H. 454; 
 Barker r. Dayton, 28 Wis. 367; Burch v. Mouton, 37 La. An. 725; 
 Scheuber r. Ballow, 64 Tex. 166; Leake v. King, 85 Mo. 413; Jones V. 
 Bobbins, 74 Tex. 615; Duffy V. Willis, 99 Mo. 432; Reinstein v. Daniels, 
 
 75 Tex. 640; Nichols v. Nichols, 62 N. H. 621; Bollins v. O'Farrell, 
 77 Tex. 90; Davis Sew. M. Co. v. Whitney, 61 Mich. 518; Persiful V. 
 Hind (Ky.), 11 S. W. Bep. 15; Black v. Black's Adm'r (Ky. 1889), 12 
 S. W. 147; Graves v. Campbell, 74 Tex. 576; C. B. Carter Lumber Co. 
 v. Clay (Tex.), 10 S. W. Bep. 293; see Durland v. Seller (Neb.), 42 
 N. W. Bep. 741. A sale and conveyance of the homestead to a third 
 party, who re-conveys to the wife, is not an abandonment, in Michigan. 
 Burkhart v. Walker & Son, 92 N. W. Bep. 778. By statute, in Wash- 
 ington, an abandonment of a homestead is only operative, when filed in 
 the office where the homestead is recorded and actual occupancy is not 
 an essential of the estate. Lewis v. Mauerman, 35 Wash. 156 ; 76 
 Pac. Bep. 737. 
 
 is Leake r. King, 85 Mo. 413; Keyes v. Scanlan, 63 \Vis. 345; Persiful 
 V. Hind (Ky.), 11 S. W. Rep. 15; Woolcut v. Lerdell, 78 Iowa, 668. 
 
 iFeldes r. Duncan, 30 111. App. 409; Kutch r. Holly, 77 Tex. 220; 
 Smith r. Mattingly (Ky.), 13 S. W. Bep. 719; Bowman v. Watson, 66 
 Tex. 295; Jones r. Blumenstein, 77 Iowa, 361; Marshall r. Appelgate 
 (Ky.). 10 S. W. Bep. 805. 
 
 soTipton v. Martin, 71 Cal. 325. Lewis r. Mauerman (Wash. 1903), 
 
 76 Pac. Rep. 737. 
 
 160
 
 CH. VII.] HOMESTEAD ESTATES. 127 
 
 held not to affect the wife's right to the homestead exemp- 
 tion, although she accompanies him, on the ground that her 
 departure from the homestead, under those circumstances, 
 is presumptive involuntary. 21 
 
 21 Collins r. Baytt, 3 Pickle, 334 ; overruling Levison v. Abrahams, 
 14 Lea., 336. But see Graves v. Campbell (Tex.), 12 S. W. Rep. 238; 
 74 Tex. 576. A second marriage is usually held to be a bar or aban- 
 donment of the homestead, as the wife would have a homestead in the 
 second husband's land and could not legally enjoy two homesteads. 
 Kloss r. Wylezalek, 207 111. 328, 69 N. E. Rep. 863. The acquisition of 
 a second homestead is generally held to be sufficient evidence of aban- 
 donment to prevent a claim of homestead as to a previous residence. 
 Wilmoth v. Gossett, 71 Ark. 594, 76 S. W. Rep. 1073. 
 
 11 161
 
 CHAPTER VIII. 
 
 ESTATES LESS THAN FREEHOLD. 
 
 SECTION I. Estates for years. 
 
 II. Estates at will, and tenancies from year to year. 
 III. Estates at sufferance. 
 
 SECTION I. 
 
 SECTION 128. History of estates for years. 
 
 129. Definition. 
 
 130. Term defined. 
 
 131. Interesse termini. 
 
 132. Terms commencing in futuro. 
 
 133. The rights of lessee for years. 
 
 134. How created. 
 
 135. Form of instrument. 
 
 136. Continued Distinction between present lease and con- 
 
 tract for a future one. 
 
 137. Acceptance of lease necessary. 
 
 138. Relation of landlord and tenant. 
 
 139. Assignment and subletting. 
 
 140. Involuntary alienation. 
 
 141. Disposition of terms after death of tenant. 
 
 142. Covenants in a lease, in general. 
 
 143. Continued Express and implied covenants. 
 
 144. Implied covenant for quiet enjoyment. 
 
 145. Implied covenant for rent. 
 
 146. Implied covenant against waste. 
 
 147. Covenants running with the land, 
 
 148. Conditions in leases. 
 
 149.* Rent reserved Necessity of consideration. 
 
 150. Rent reserved Condition of forfeiture. 
 
 151. How relation of landlord and tenant may be determined. 
 
 152. What constitutes eviction. 
 
 153. Constructive eviction. 
 
 154. Partial eviction. 
 
 155. Surrender and merger, 
 162
 
 CH. VIII.] ESTATES FOR YEARS. 128 
 
 156. How surrender may be effected. 
 
 157. Right of lessee to deny lessor's title. 
 
 158. Effect of disclaimer of lessor's title. 
 
 159. Options of purchase and for renewal. 
 
 160. Letting land upon shares. 
 
 161. Actions between landlords and tenants. 
 
 128. History of estates for years. Under the feudal sys- 
 tem, the smallest interest which could be granted out of 
 lands, having the characteristics of an estate, was a free- 
 hold. Such are the estates, which have been treated in the 
 preceding pages. But there obtained at that time a custom 
 of granting by contract to tenants the possession of the 
 lands for a stipulated period, in consideration of some rent 
 paid or service performed by the tenant. The tenant 
 acquired no estate or vested interest in the land, which 
 would give to him the possessory actions necessary for the 
 protection of such interests. If he was evicted by the land- 
 lord or by any other person, he had only his action for dam- 
 ages against the landlord for the breach of his contract. 
 He could not recover possession as in the case of a free- 
 hold. 1 But subsequently the writ of ejectment was invented 
 for his protection, by which he could recover possession of 
 the land, with damages for its detinue, and this form of 
 action substantially remains to this day. 2 But these estates, 
 as well as the other tenancies considered in the fol- 
 lowing sections, are generally considered and treated as 
 chattel interests in lands, having more the characteristics 
 of a bailment, than of a freehold estate in real property. 
 The tenant is never said to be seized of the land. The 
 actual seisin, if acquired by virtue of his possession, is held 
 by him as a quasi-bailee of the remainderman. 3 This gen- 
 
 1 Washburn on Real Prop. 433, 435 ; Maine's Anc. Law, 275 ; Digby, 
 Hist. Real Prop. 175. 
 
 2 1 Washburn on Real Prop. 435, 430; Goodlittle V. Tombs. 3 Wils. 
 120; Campbell v. Loader, 3 H. A C. 527. For history of the writ 
 ejections firmce, on which the action of ejectment was subsequently 
 based, see 2 Pollock &, Maitlands Hist. Eng. Law, 291. 
 
 a 1 Washburn on Real Prop. 435 ; 1 Cruise Dig. 224. 
 
 163
 
 130 ESTATES FOR YEARS. [PART I. 
 
 eral proposition is, however, often limited by statutory 
 enactments, which give to estates for years of a certain 
 duration, fixed by statute, all the characteristics of a free- 
 hold estate. 4 Such leaseholds, by force of these statutes, as- 
 sume the character of a freehold estate, so far as the cer- 
 tainty of its duration will permit. 
 
 129. Definition. An estates for years is one granted for 
 a certain definite period of time, by the owner of the free- 
 hold, who in this connection is called the lessor, to one called 
 the lessee, to hold and enjoy during the time stipulated and 
 under the conditions agreed upon. The word years is used 
 simply as a unit of time, and an estate for years, technic- 
 'ally, may be for any period of time, a month, a week, etc. 5 
 
 130. Term defined. Since the estate is to last for a defi- 
 nite period of time, having a precise beginning and end, 
 it has acquired the technical designation of a term, from the 
 Latin terminus* But the period need not be definitely fixed 
 by the contract of the parties, which creates the estate. Un- 
 der the maxim, id certum est quod cerium reddi potest, the 
 contract or lease would be valid, if it contained sufficient 
 means of ascertaining its duration. A lease, therefore, for 
 so many years as J. S. shall name, or to A. during his 
 minority, would be a good term, while a lease for so many 
 years as A. shall live, would not be good as a term, since 
 there is no way in which the duration of the term can be 
 ascertained until its expiration. 7 It has, however, been held 
 
 < 1 Washburn on Real Prop. 463 ; Walker Am. Law, 279. 
 
 s 1 Washburn on Real Prop. 436; Brown v. Bragg, 22 Ind. 122; Gould 
 v. School Dist., 8 Minn. 431; Dixon V. Ahern (Nev.), 24 Pac. Rep. 337; 
 Shaw V. Hill (Mich), 44 N. W. Rep. 422; Buel v. Buel (Wis.), 45 N. W. 
 Rep. 324; State v. Staiger (N. J.), 19 Atl. Rep. 357. Taylor, Land & 
 Ten., Sec. 17; Huff v. McCauly (Pa.), 91 Amer. Dec. 203. 
 
 e 1 Washburn on Real Prop. 438 ; Williams on Real Prop. 388. 
 
 * Co. Lit. 45 b; 1 Washburn on Real Prop. 441; Dunn V. Cartright, 4 
 East, 29; Doe r. Dickson, 9 East, 15; West. Transp. Co. V. Lansing, 49 
 N. Y. 508; Homer v. Leeds, 25 N. J. L. 106; Delashman v, Barry, 20 
 164
 
 CH. VIII. J ESTATES FOR YEARS. 131 
 
 to be a good lease where the lessee was given the possession 
 as long as a certain building was not completed. 8 And if a 
 lease is given for a time certain, the validity is not affected 
 by an additional stipulation that the tenant's possession 
 thereafter is to continue at the will of the lessor. 9 
 
 131. Interesse termini. The lessee does not acquire an 
 estate in the land until he has entered into possession. Hi 
 interest is simply a right of entry, and is called an interesse 
 termini. Until possession is acquired, he cannot maintain 
 any action against strangers in respect to the land. Before 
 the entry, the right of possession and the right to bring such 
 actions are in the lessor. 10 It has also been held at com- 
 mon law that the lessee cannot, before entry, maintain an 
 action of ejectment. But under the present theory in re- 
 gard to this action, it is equivalent to common-law entry, 
 
 Mich. 292; Russell v. McCartney, 21 Mo. App. 544; Spies v. Voss, a 
 N. Y. S. 532. On the principle that the number of years can be ascer- 
 tained by computation, it has been held that a devise or grant of lands^ 
 to pay debts out of the rents and profits, is treated as an estate for 
 years. 1 Cruise Dig. 223; Batchelder v. Dean, 16 N. H. 268. See, 
 also, ante, Sec. 46. 
 
 8 D'Arcy r. Martyn, 63 Mich. 602. See, also, Sutton t?. Hiram Lodge, 
 83 Ga. 770 (for the space of twenty years, or during our (lessee's} 
 natural lives). A term may be created as well in incorporeal thing*, 
 real, as in other species of real property. Taylor Land. & Ten., 17; 
 Commonwealth v. Weatherhead, 110 Mass. 175. That the lessor only 
 has a life estate, does not effect the rights of the parties to a lease, 
 for a fixed term, with privilege of a renewal. Olden v. Sassman (N. J. 
 Ch. 1904), 57 Atl. Rep. 1075. 
 
 Myers v. Kingston Coal Co., 126 Pa. St. 582. 
 
 10 Co. Lit. 46 b; 4 Kent's Com. 97; Doe v. Walker, 5 B. & C. Ill; 
 Wheeler v. Montefiore, 2 Q. B. 142; Sennett v. Bucher, 3 Pa. St. 392; 
 1 Washburn on Real Prop. 442, 443. And although the words " bargain; 
 and sell " in a lease, founded upon actual and valuable consideration, 
 will create a use, which will be executed into a legal estate by the 
 Statute of Uses, the same rule in respect to the necessity of entry into 
 possession applies. 2 Sand. Uses, 56; 1 Washburn on Real Prop. 443. 
 See Harrison r. Blackburn, 17 C. B. (N. S.) .678; Austin v. Coal Co., 
 72 Mo. 535; 1 Greenl. Cruise 243; 4 Kent's Com. (11 ed.) 106; 1 
 Platt Leas. 22; Taylor Land. & Ten. (6 ed.) 11. 
 
 165
 
 132 ESTATES FOR YEARS. [PART I. 
 
 and can be maintained by any one who has a good title and 
 an immediate right of entry. 11 The interesse termiw , how- 
 ever, is so far a vested interest as to be capable of descent 
 to the personal representatives, or of bequest like other chat- 
 tel interests. It can also be assigned or released. 12 But a 
 delay on the part of the lessee to convert his interesse termini 
 into an actual estate, does not suspend his liability on the 
 covenants of his lease, unless such delay is occasioned by 
 the fault of the lessor. 18 But it is the duty of the lesser 
 to deliver the possession to the tenant; and if the leased 
 property is in the possession of a third person, who refuses 
 to give it up, it is the lessor's duty to oust him; and until 
 he does this he breaks his covenant for quiet enjoyment and 
 is liable in damages to the lessee. 14 
 
 132. Terms commencing in future. Since a term of years 
 is a contract for the delivery and detention of the possession 
 and does not affect the seisin of the reversioner, it may be 
 made to commence at any time in the future, as well as in 
 the present, provided it does not offend the doctrine of per- 
 petuities, by vesting in possession at a time beyond a life 
 or lives in being, and twenty-one years thereafter. 15 Some- 
 times a lease contains a covenant for renewal. Where it 
 is a covenant for an indefinite renewal, it has been held 
 
 11 1 Washburn on Real Prop. 443, 444; Gardner v. Keteltas, 3 Hill 332; 
 Whitney v. Allaire, 1 N. Y. 305. 
 
 Co. Lit. 46 b, 338 a ; 4 Kent's Com. 97 ; Doe v. Walker, 5 B. & C. 
 Ill; 1 Washburn on Real Prop. 444. 
 
 is 1 Washburn on Real Prop. 445; Salmon v. Smith, 1 Saund. 
 203, note 1, Whitney v. Allaire, 1 N. Y. 305; Lafarge v. Mansfield, 31 
 Barb. 345 : Median. Ins. Co. v. Scott, 2 Hilt. 550 ; Maverick v. Lewis, 3 
 McCord, 216; Rice v. Brown, 81 Me. 56. But see Reed v. Beck, 66 Iowa 
 21, where it was held that, where a mine was rented under a contract to 
 pay a certain sum per ton, ap'l a guaranty that the royalty should not 
 fall short of a given amount, no rent was due until mining had begun. 
 
 Cohn r. Norton, 57 Conn. 480. 
 
 is Williams on Real Prop. 38; Cadell v. Palmer, 10 Bing. 140; Wild 
 r. Traip. 14 Gray 333. 
 166
 
 CH. VIII.] ESTATES FOR YEARS. 132 
 
 to be a void agreement within the doctrine of perpetuity. 16 
 "Whether this rule would be adopted generally, is a matter 
 of some doubt. Where the covenant for renewal is on the 
 part of the lessor and the lessee does not expressly bind him- 
 self to accept such a renewal, the performance or non-per- 
 formance of the covenant is at the option of the lessee, and 
 he cannot be compelled to accept a renewal. 17 Unless the 
 term does take effect in possession, the lessee has only an 
 interesse termini. 18 
 
 It is sometimes stated without any qualification or ex- 
 planation, which is at all satisfactory to a rational mind, that 
 leaseholds can, and freeholds cannot, be created to com- 
 mence in the future, and the difference in the operation of 
 this rule on the two kinds of estates is ordinarily ascribed 
 to some feudal distinction. But the rational explanation 
 of the matter is the following: A lease is not a conveyance 
 of an estate, but only an executory contract for the transfer 
 of an estate for years, and differs in no material respect 
 from the operation of an executory contract for the sale 
 of a freehold estate. The difference arises at common law 
 in the modes of executing these two executory contracts of 
 sale. The lease is executed by the lessee taking possession 
 of the land, without any formal transfer of it to him by the 
 
 ie Reed f. Campbell, 43 N. J. Eq. 406; Morrison r. Rossignol, 5 Cal. 
 64. 
 
 " Brucer r. Fulton National Bank, 79 N. Y. 154, 35 Am. Rep. 505. 
 
 i 1 Washburn on Real Prop. 439; 4 Kent's Com. 97; Doe r. Walker 
 . r > B. & C. 311. Berridge r. Glassey, 112 Pa. St. 442, 56 Am. Rep. 322; 
 Illinois Starch Co. f. Ottawa Hydraulic Co., 23 111. App. 272, s. c. 125 
 111. 237. If the premises, in a lease commencing in futuro, are de- 
 stroyed before the time arrives for it to vest in possession, the tenant 
 is under no liability for rent. The very subject-matter of the contract 
 being destroyed, the contract becomes an impossible one, and the parties 
 are relieved of their liability. Taylor f. Caldwcll. 3 B. & S. 826; 
 Wood r. Hubbell, 10 N. Y. 487. A mere contract to execute a lease IK-VIT 
 conveys any estate in the premises agreed to be demised. Henderson 
 f. Schuylkill Valley Co., 24 Pa. Super. Ct. 422; Ver Steeg r. Bocker- 
 Moore Co. (Mo. 1904), 80 S. W. Rep. 346; Austin v. Coal Co., 72 Mo. 
 535. 
 
 167
 
 134 ESTATES FOR YEARS. [PART I. 
 
 lessor. But at common law an executory contract for the 
 sale of a freehold could only be executed by a livery of 
 seisin, which from its very nature could not take place 
 until the time arrived^ when the grantee's estate was to be- 
 gin. To be strictly accurate in speech, neither the lease- 
 hold nor the freehold can be created to commence in the 
 future, but it is practically accurate to say that a leasehold 
 can be so created, inasmuch as the executory lease is self- 
 executing. The necessity at common law for the livery of 
 seisin in the execution of an executory sale of a freehold 
 is the only obstacle in the way of applying the same state- 
 ment to the sale of freeholds in futuro. As soon as a con- 
 veyance of the legal title to freeholds was devised, whereby 
 the executory bargain and sale of a freehold became self- 
 executing, we then find that freeholds, as well as leaseholds, 
 can be created to commence in the future. 19 
 
 133. The rights of lessee for years. As a general propo- 
 sition, the lessee is entitled to all the rights of freeholders, 
 which arise out of actual possession, including those of 
 estovers, fixtures, and the modes of enjoyment of the land. 20 
 But the estate for years can be regulated by agreement of 
 parties to an almost unlimited extent, and the rights of the 
 parties under a lease are as variant as the contracts. There 
 are few, if any, rights which might be considered as in- 
 variable incidents of leaseholds. 
 
 134. How created. A contract is the basis of every ten- 
 ancy for years. A permissive occupation of the land is not 
 such a tenancy as would support a claim for rent. 21 At 
 common law an estate for years could have been created by 
 
 i See post, Sec. 543. 
 
 zoKutter v. Smith, 2 Wall. 497; Davis v. Buffum, 51 Me. 162; 
 Dingley v. Buffum, 57 Me. 382; Riddle V. Littlefield, 33 N. H, 510; 
 Freer v. Stotenbur, 3& Barb. 642 ; Dubois v. Kelly, 10 Barb. 49$; See 
 ante, Sees. 56-63. 
 
 aiCollyer v. Colly^r, 113 N. Y. 442. 
 168
 
 CH. VIII.] ESTATES FOR YEARS. 134 
 
 a parol contract. But under the English Statute of Frauds, 
 all leases for more than three years must be put in writing 
 and signed by the parties; otherwise, they shall have only 
 the force and effect of estates at will. 22 Although the stat- 
 utes declare such parol leases to have only the force and 
 effect of estates at will, yet in those States in which the 
 doctrine of tenancies from year to year is recognized, they 
 would be construed to be tenancies from year to year, if the 
 tenant enters into possession and pays rent, and in all the 
 States, such tenants would have a right to the statutory 
 notice to quit before an action of ejectment can be main- 
 tained against them. 23 But mere possession, without an 
 actual payment of rent, will not impose upon the tenant the 
 obligations of a tenant from year to year; and he is at 
 liberty to escape liability for rent by abandoning the pos- 
 session. 24 It is not necessary that such leases should be 
 under seal in order to be valid. 25 The statutes of the dif- 
 
 22 1 Washburn on Real Prop. 446, 447. 
 
 23 Schneider v. Lord, 62 Mich. 141; Tanton v. Van Alstine, 24 111. 
 App. 405; Quinlan v. Bonte, 25 111. App. 240; Talamo r. Spitzmiller, 
 120 N. Y. 37; People V. Rickhert, 8 Cow. 226; McDowell v. Simpson, 3 
 Watts 129; Dunn v. Rothermel, 112 Pa. St. 272; Utah Loan & T. Co. v. 
 Garbut (Utah), 23 Pac. Rep. 758; Condert V. Cohn, 118 N. Y. 309, 
 N. B. 48; Rosenblatt v. Perkins (Or.), 22 Pac. Rep. 598. But see 
 Unglish V. Marvin, 45 Hun 45. And as long as possession continues 
 under a parol lease, which is void under the Statute of Frauds, the 
 rights of the parties will be governed by the terms of the original let- 
 ting. Doe v. Bell, 5 T. R. 471; Barlow v. Wainwright, 22 Vt. 88; Cur- 
 rier v. Barker, 2 Gray 224; Quinlan v. Bonte, 25 111. App. 240. Any 
 language by which possession of premises is transferred for a fixed 
 term, for a stipulated rent, is a lease, in Pennsylvania. Pickering v. 
 O'Brien, 23 Pa. Super. Ct. 125. No seal is necessary, in Illinois, Borg- 
 gard v. Gale, 107 111. App. 128, 205 111. 511, 68 N. E. Rep. 1063. But 
 the lease must be for a lawful purpose. A lease of property for a 
 bawdy house is wholly void. Berni v. Boyer, 90 Minn. 469, 97 N. W. 
 Rep. 121; Sprague v. Rooney, 84 Mo. 349; McDermott t?. Sedgwick, 140 
 Mo. 172. 
 
 2 Capper v. Sibley, 55 Iowa 754. 
 
 SB Allen v. Jaquish, 21 Wend. 635; Olmstead . Niles, 7 N. H. 526; 
 Den v. Johnson, 15 N. J. L. 116; 1 Washburn on Real Prop. 447. 
 
 169
 
 134 ESTATES FOK YEARS. [PART I. 
 
 ferent States are similar in their general provisions, but there 
 is a diversity in respect to the length or duration of those 
 leases, which will be valid without writing; 28 while in some, 
 again, the writing is required to be under seal, or in other 
 words, to be a deed." But if only one of the parties signs 
 the lease, and the tenant enters into actual possession of 
 the premises, the party signing cannot relieve himself of 
 liability on the lease by showing that the lease had not been 
 duly executed by the other party. This is true whether the 
 party failing to sign be the lessor or lessee. 28 In Maine it 
 is held that the signature of the lessor and the seal of the 
 lessee bind both parties to the lease. 29 If the lease is ex- 
 ecuted by an agent, according to the English law, and that 
 of some of the States, the authority must be given in writing, 
 while in other States, the writing not being under seal, a 
 
 26 The English statute has been re-enacted in Pennsylvania, New 
 Jersey, Maryland, North Carolina, South Carolina, Georgia, and In- 
 diana. In Florida, leases for two years and under may be by parol. 
 In Alabama, Arkansas, California, Delaware, Iowa, Kentucky, Michigan, 
 Mississippi, New York, Nevada, Rhode Island, Tennessee, Texas, Vir- 
 ginia and Wisconsin, the term is one year ; while in Maine, Massachu- 
 setts, Missouri, New Hampshire, Ohio and Vermont, all parol leases 
 create tenancies at will. 1 Washburn on Real Prop. 484, note. 
 
 27 The provisions of the State statutes requiring a sealed instru- 
 ment in the grant of a leasehold, are not uniform. Generally it is pro- 
 vided that only leases of a certain duration should be sealed. See 
 Taylor's L. and T., Sec. 34; Gratt v. Bratt, 21 Md. 583; Chandler v. 
 Kent, 8 Minn. 526. 
 
 2Zink v. Bohn, 3 N. Y. S. 4; Toan V. Pline, 60 Mich. 385. There 
 must be a sufficient description of the premises (Dixon v. Finnegan, 182 
 Mo. Ill, 81 S. W. Rep. 449); a present demise of the premises (Ver 
 Steeg v. Becker-Moore Co.,) Mo. 1904, 80 S. W. Rep. 346; and an 
 execution by the parties, to constitute a valid lease (Kuntz V. Maren- 
 holz, N. Y. 1904, 88 N. Y. S. 1002). In the execution of a lease to 
 property held in trust all the trustees must join, or the lease is void. 
 Baltimore & Ohio Co. v. Winslow, 188 U. S. 646, 47 L. Ed. 635. And, in 
 West Virginia, if lessor's name does not appear in body of lease, al- 
 though he signs it, it is not a good demise. Barnsball V. Boley, 119 Fed. 
 Rep. 191. 
 
 20 Rice v. Brown, 81 Me. 56. No seal is required in Illinois. Borg- 
 gard v. Cole, 205 111. 511, 68 N. E. Rep. 1063. 
 170
 
 CH. VIII.] ESTATES FOR YEARS. 135 
 
 parol power of attorney will be sufficient. 30 Whenever a 
 lease is reduced to writing, parol evidence is inadmissible 
 to vary or add to the terms of the lease as set forth in the 
 writing. 31 
 
 135. Form of instrument. In the execution of a lease, a 
 general form of deed, more fully explained hereafter, is 
 usually followed, and certain terms and forms of expression 
 are used. But any form of deed, and any terms or mode of 
 expression will be sufficient for the creation of an estate 
 for years, which shows the intention of the lessor to transfer 
 to the lessee the possession of the land during a certain de- 
 terminate period of time. 32 If the lease is delivered as an 
 escrow, no title passes to the tenant until the condition has 
 been performed. 33 The words of grant usually employed 
 are "grant," "demise," and "farm-let." "Do lease, de- 
 mise, and farm-let," signify generally the creation of a 
 present vesting term, and not a future or contingent one, 
 but this implication may be controlled by the other provisions 
 of the lease. 34 The lease must, of course, describe the land 
 
 so 1 Washburn on Real Prop. 448, note. The English rule has been 
 adopted in Alabama, Arkansas, Georgia, Maryland, Michigan, Missouri, 
 New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South 
 Carolina, and Wisconsin. Cheesebrough v. Ringrel, 72 Mich. 438. 
 
 3i Stevens v. Pierce (Mass.), 23 N. E. Rep. 1006; McLean v. Nicoll, 
 43 Minn. 169; Snead v. Tiejer (Ariz.), 24 Pac. Rep. 324; Kline v. Mc- 
 Lain, 33 W. Va. 32; Pike v. Leiter, 26 111. App. 531; Leiter v. Pike, 127 
 111. 287; Stoddard v. Nelson, 17 Or. 418. 
 
 sz Wells v. Sheerer, 78 Ala. 142; Dunck Co. v. Webber (Mass.), 24 
 N. E. Rep. 1082; Collyer V. Collyer, 113 N. Y. 442; Houston v. Smythe, 
 66 Miss. 118; Oliver v. Moore, 53 Hun 472; Rice V. Brown, 81 Me. 56. 
 
 3Gorsuch v. Rutledge, 70 Ind. 272. 
 
 3 So. Cong. Meet. House v. Hilton, 11 Gray 409; White v. Livingston, 
 10 Cush. 259; Putnam v. Wise, 1 Hill 244; Jackson r. Delacroix. 2 
 Wend. 438; Walker v. Fitts, 24 Pick. 181; Doe v. Ries, 8 Bing. 182; 
 Doe r. Benjamin, 9 A. & E. 650. " Shall hold and enjoy " have also 
 been held to be words of present demise. Doe t'. Ashburner, 5 T. R. 
 168; Moshier r. Reding, 12 Me. 13f> : Wilson r. Martin. 1 Denio 602; 
 Watson t?. O'Hern, 6 Watts. 362; Moore f. Miller, 8 Pa. St. 272. See, 
 for essentials of lease, Kuntz f. Morenholz (N. Y. 1904), 88 N. Y. 8. 
 
 171
 
 136 ESTATES FOR YEARS. [PART I. 
 
 which is leased with sufficient accuracy to admit of its 
 identification. 35 But an agent of the lessor may under parol 
 authority 30 supply the deficiency of the description. 37 And 
 if the tenant enters into possession under the lease, he can- 
 not object to his liability under the covenant, on account of 
 the deficiency of the description. 88 
 
 136. Continued Distinction between present lease and 
 contract for future one. It is sometimes difficult to determine 
 whether the instrument is a present lease, or only a contract 
 for a future one. If it is a present lease, the parties will 
 be bound by its implied, as well as express, provisions, and 
 their force and affect cannot be altered by parol evidence, 
 showing the intentions of the parties to have been different. 33 
 Whereas, if the instrument was only a contract for a future 
 lease, it is not the final repository of the wishes of the 
 parties, and it can be altered or amended to effectuate their 
 intention. 40 But in the absence of mutual agreements for 
 alterations or amendments, neither party can insist on the 
 insertion into the lease of terms and conditions, which are 
 not imposed on the parties by law. 41 The ordinary rule 
 of construction is that where the agreement leaves nothing 
 further to be done by the parties, and contains directly, or 
 by reference to other papers or records, all the provisions 
 that are necessary to a valid lease, the instrument will be 
 treated as a present demise. 42 And even where a fuller lease 
 
 1002; Dixon v. Finnegan, 182 Mo. Ill, 81 S. W. Rep. 449; Baltimore 
 & Ohio Co. v. Winslow, 188 U. S. 646, 47 L. Ed. 635. 
 
 soCluett V. Sheppard (111.), 23 N. E. Eep. 582. 
 
 so See post, Sec. 548. 
 
 " Bulkley v. Devine, 27 111. App. 145, s. c. 127 111. 406. 
 
 ss Bulkley v. Devine, 127 111. 406. 
 
 3 Kline v. McLain, 33 W. Va. 32. 
 
 40 1 Washburn on Real Prop. 453. 
 
 <i Hayden v. Lucas, 18 Mo. App. 325. 
 
 42 Kabley V. Worcester Gas Co. 102 Mass. 394; Shaw v. Farnsworth, 
 108 Mass. 357. See Weed v. Crocker, 13 Gray 219 ; Hallett v. Wylie, 3 
 Johns. 47; Jackson r. Delacroix, 2 Wend. 433; Averill v. Taylor, 8 
 172
 
 CH. VIII.] ESTATES FOR YEARS. 137 
 
 is stipulated for, although this clause standing alone would 
 give to the agreement the character of a contract for a lease, 
 yet if there are proper words of present demise, the cove- 
 nant for a future lease will be treated merely as a covenant 
 for further assurance, and the agreement will take effect 
 as a present demise. 43 And where the agreement admits of 
 either construction the acts and declaration of the parties 
 may be introduced, as indications of their intention and 
 their understanding of the agreement. 44 Entry into pos- 
 session and payment of rent would create a tenancy under 
 a written instrument, which otherwise would be construed 
 to be only a contract for a future lease. 45 
 
 137. Acceptance of lease necessary. In order that the 
 lessor may be divested of his possession and of his rights 
 incident to possession, and the lessee be bound by the terms 
 
 N. Y. 44; Morgan v. Bissell, 3 Taunt. 65; Haven v. Wakefield, 39 111. 
 509. 
 
 <3 Alderman v. Neate, 4 M. & W. 719; Jackson v. Kisselbrack, 10 
 Johns. 336; The People V. Gillis, 24 Wend. 201; Jackson V. Myers, 3 
 Johns. 395; Bacon V. Bovvdoin, 22 Pick. 401; Jackson V. Eldridge, 
 3 Story 325; Aiken v. Smith, 21 Vt. 272. In Buell v. Cork, 4 Conn. 
 238, it was held to be a contract for a lease, because the consent of 
 a third person was required to make a valid lease; and in Jackson 
 v. Delacroix, 2 Wend. 433, where the instrument contained a state- 
 ment that alterations were expected to be made in the terms, it was 
 held to be a contract for a future lease. See Poole v. Bently, 12 East 
 168; Jones v. Reynolds, 1 Q. B. 517; Doe v. Benjamin, 9 A. & E. 644; 
 Chapman V. Towner, 6 M. & W. 100. In Thornton v. Payne, 5 Johns. 
 74, the court say: " In every case decided in the English courts where 
 agreements have been adjudged not to operate by passing an interest, 
 but to rest in contract, there has been either an express agreement for a 
 future lease, or construing the agreement to be a lease in prcesenti 
 would work a forfeiture, or the terms have not been fully settled, and 
 something further was to be done." The presumption is always in favor 
 of its being a present lease, in stead of a contract for a future lease. 
 
 ** Chapman v. Black, 4 Bing. N. C. 187; Alderman v. Neate, 4 M. & 
 W. 704; Doe v. Ashburner, 5 T. R. 163. 
 
 sChenny v. Newberry, 67 Cal. 125; Austin v. Coal Co., 72 Mo. 535; 
 Ver Steeg v. Becker-Moore Co. (Mo. 1904), 80 S. W. Rep. 346. 
 
 173
 
 139 ESTATES FOR YEARS. [PART I. 
 
 of the lease, acceptance by the latter must be shown. Where 
 it operates entirely to his benefit, his acceptance may be 
 presumed ; while in other cases it may be inferred from acts, 
 such as entry into possession and the like, as well as es- 
 tablished by words of formal acceptance. 48 
 
 138. Relation of landlord and tenant. As soon as a lease 
 has been delivered and accepted by parties competent to 
 contract, 47 a relation is established between .the lessor and 
 lessee which is known as that of landlord and tenant. A 
 privity of estate and a tenure are established, which bind 
 the parties to each other in respect to the duties imposed 
 by the law and the implied covenants. This obligation exists 
 no longer than does the relation of landlord and tenant, 
 while the obligation imposed and created by the express 
 terms and provisions of the instrument rest upon privity of 
 contract, and survive the dissolution of such relation. 48 The 
 lessee, however, does not become liable on his covenant to 
 pay rent until the lessor has put him into possession of the 
 premises. 49 
 
 139. Assignment and subletting. Unless restrained by a 
 covenant or changed by statute, the lessee can assign his term 
 or grant a sublease of the same without let or hindrance of 
 the lessor. 50 And a restriction against assignment does not 
 
 < Maynard v. Maynard, 10 Mass. 456; Hedge v. Drew, 12 Pick. 141; 
 Kramer v. Cook, 7 Gray 550; Jackson V. Dunlap, 1 Johns. Cas. 114; 
 Jackson v. Bodle, 20 Johns. 184; Jackson v. Richards, 6 Cow. 617. 
 
 47 See post, Sees. 549, 550, 551, 569-571, for a discussion of the sub- 
 jects, delivery and competency of parties. 
 
 48 1 Wahsburn on Real Prop. 468, 469. 
 
 4Kean v. Kolkschneider, 21 Mo. App. 538; Austin v. Coal Co., 72 
 Mo. 535; 4 Kent's Com. (11 ed.) 106; 1 Platt's Leas. 22; Townsend t?. 
 Nickerson Co., 117 Mass. 501. 
 
 so King v. Aldborough, 1 East 597; Roe v. Sales, 1 M. & Sel. 297; 
 Taylor's L. & T. 22; 1 Washburn on Real Prop. 507, 508; Cottee v. 
 Richardson, 7 Ex. Rep. 143; Brown v. Powell, 25 Pa. Str 329; Shannon 
 r. Burr. 1 Hilt. 39; Den v. Post, 35 N. J. L. 285; Robinson v. Perry, 21 
 Ga. 183; Crommelin v. Thiess, 31 Ala 421. An unauthorized assign- 
 174
 
 CH. VIII.] ESTATES FOR YEARS. 139 
 
 prevent a subletting, and vice versa. The restriction must 
 apply expressly to both in order to restrain both. 51 The as- 
 signment or sublease is subject to the same requirements of 
 the Statute of Frauds, as the original lease. 52 An assign- 
 ment is effected, whenever the entire term is disposed of, 
 leaving nothing in the lessee by way of a reversion. And a 
 grant will be considered and treated as an assignment, 
 whether it be in the form of a new lease, or merely a trans- 
 fer of the old lease. The reservation of a different rent does 
 not make the transfer a subletting. 53 The decisive question 
 is, whether there is a reversion left in the lessee ; and a grant 
 of a portion of the premises for the entire term would bo 
 an assignment, and not a sublease of such portion. 54 But 
 if the whole, or only a part of the premises be demised for a 
 term of shorter duration than that of the lessee, it is a sub- 
 
 ment or subletting of the leased premises, is voidable, at the option of 
 the lessor. Scott V. Slaughter (Tex. 1904), 80 S. W. Rep. 643; Granite 
 Bldg. Corp. V. Green, 25 R. I. 58G, 57 Atl. Rep. 649; Calvert v. Hobbs. 
 107 Mo. App. 7, 80 8. W. Rep. 681; Peer v. Wadsworth (N. J. Ch. 
 1904), 58 Atl. Rep. 379; Teater r. King, 35 Wash. 138, 76 Pac. Rep. 
 688; Slaughter v. Coke Co. (Tex. 1904), 79 S. W. Rep. 863. But see, 
 for estoppel of lessor to deny validity of assignment or subletting, 
 Warner v. Cochrane, 128 Fed. Rep. 553, 63 Cir. Ct. App. 207. 
 
 si Greenaway v. Adams, 12 Ves. 400; Beardman v. Wilson, L. R. 4 C. 
 B. 57; Lynde v. Hough, 27 Barb. 415; Den v. Post, 25 N. J. L. 285; 
 Field v. Mills, 33 N. J. L. 254; Hargrave v. King, 5 Ired. Eq. 430. 
 Taking boarders is neither a subletting nor an assignment according to 
 a late case. Stanton v. Allen (S. C.), 10 S. E. Rep. 878. A covenant 
 against assignment is not violated by the possession of a trustee in 
 bankruptcy. In re Bush, 126 Fed. Rep. 878. 
 
 52 1 Washburn on Real Prop. 508 ; Williams on Real Prop. 402. 
 
 53 Sexton v. Chicago Storage Co., 129 111. 318. 
 
 5 Palmer v. Ei'wards, Dougl. 187, note; Parmenter v. Webber, 8 
 Taunt. 593; Boardman v. Wilson, L. R. 4 C. B. 56; Wollaston r. Hake- 
 well, 3 M. & G. 323; Plush v. Diggs, 5 Bligh (N. S.) 31; Pollack r. 
 Stacy, 9 Q. B. 1033; Sanders v. Partridge, 108 Mass. 558; Lynde r. 
 Hough, 27 Barb. 145; Patten f. Deshon, 1 Gray 325; Sands v. Hughes, 
 53 N. Y. 293; Bedford v. Terhune, 30 N. Y. 457. But see Fulton v. 
 Stuart, 2 Ohio 369, and McNeil V. Kendall, 128 Mass. 245, 35 Am. Rep. 
 373, where transfer of a part of premises for the whole term was con- 
 sidered a subletting. 
 
 175
 
 139 ESTATES FOR YEARS. [PART I. 
 
 letting. And the most inconsiderable reversion, such as the 
 last day of the term, would be sufficient to give the grant 
 the character of an under-lease. 55 It has been held and like- 
 wise denied, that the reservation of a right of entry for 
 breach of a condition would be such a reservation of a re- 
 version, as to make the demise a subletting. The better opin- 
 ion is that a right of entry will have no such effect, if the 
 whole term has been granted. 56 If the demise is an as- 
 signment, the assignee enters into the privity of estate with 
 the original lessor and becomes thereby liable to him on 
 the covenants of the original lease, which run with and bind 
 the land. But his liability only continues during the con- 
 tinued maintainance of this privity of estate, and does not 
 extend to breaches occurring before assignment to him, or 
 after his alienation of the term. 57 But he cannot escape 
 
 so Post v. Kearney, 2 N. Y. 394; Collins v. Hasbrouck, 56 N. Y. 
 157, 15 Am. Law Rep. 407; Astor v. Miller, 2 Paige 68; Martin v. 
 O'Connor, 43 N. Y. 522; Linden v. Hepburn, 3 Sandf. 668; Patten v. 
 Deshon. 1 Gray 325; Parmenter v. Webber, 8 Taunt. 593; Pollock V. 
 Stacy, 9 Q. B. 1033; Derby v. Taylor, 1 East 502; Sexton v. Chicago 
 Storage Co., 129 111. 318. 
 
 se That the reservation of a right of entry upon failure to pay 
 rent makes the transfer a subletting, see Kearney V. Post, 1 Sandf. 
 105; Martin v. O'Connor, 43 Barb. 522; Linden V. Hepburn, 3 Sandf. 
 670; Sexton r. Chicago Storage Co., 129 111. 318. In the following 
 cases the rule is denied. 2 Prest. Conv. 124, 125; Palmer v. Edwards, 
 Dougl. 187, note; Doe v. Bateman, 2 B. & Aid. 168; Lloyd v. Cozens, 3 
 Ashm. 138; Davis v. Morris, 36 N. Y. 575; Smiley V. Van Winkle, 6 
 Cal. 605. See Bedford v . Terhune, 30 N. Y. 457 ; Sanders v. Partridge, 
 108 Mass. 558; Stewart v. Long Island R. R. Co., 102 N. Y. 601, 55 
 Am. Rep. 844. In a note to King v. Wilson, 5 Man. & R. 157, note, it is 
 stated that there is " neither principle nor authority, to preclude such 
 term or from making an underlease for a period commensurate in point 
 of computation with the original term." 
 
 57 Stevenson v. Lombard, 2 East 575; Burnet v. Lynch, 5 B. & C. 
 589; University of Vermont v. Joslyn, 21 Vt. 52; Howland v. Coffin, 12 
 Pick. 125; Graham V. Way, 38 Vt. 19; Davis v. Morris, 36 N. Y. 576; 
 McKeon v. Whitney, 3 Denio 452; Benson v. Bolles, 8 Wend. 175; 
 Grandin v. Carter, 99 Mass. 16; Sanders v. Partridge, 108 Mass. 556; 
 Walton v. Cronly, 14 Wend, 62; Armstrong v. Wheeler, 9 Cow. 89: 
 Salisbury v. Shirley, 66 Cal. 223; Donelson v. Polk, 64 Md. 501; Os- 
 176
 
 CH. VIII.] ESTATES FOR YEARS. 139 
 
 liability for rent merely by abandonment of the possession. 
 Nothing but alienation or a complete surrender to the lessor 
 would relieve the assignee from the payment of rent. 58 The 
 fact that the original lease contains a condition against assign- 
 ment without consent of lessor docs not make the assignee's 
 liability depend upon such consent; the lessor may waive 
 the performance of the agreement. 59 Actual entry into pos- 
 session is not necessary to attach such liability to the assignee 
 during the time that the term is vested in him, except that 
 in some States actual entry is required in order to render 
 the assignee liable on the covenant for rent. 60 Where the 
 assignment is by way of a mortgage, actual entry is always 
 necessary. 61 If the assignment is in violation of a condition, 
 
 wald r. Mollett, 29 111. App. 449; Reynolds r. Lawton, 8 N. Y. S. 403; 
 Washington Nat. Gas Co. v. Johnson, 123 Pa. St. 576; Congregational 
 Soc. r. Rix (Vt.), 17 Atl. Rep. 719. 
 
 ss Dewey v. Payne, 19 Neb. 540. An assignment dors not relieve the 
 original lessee from his covenant to pay rent. Rector r. Hartford Devp. 
 Co., 102 111. App. 554. But a re-assignment, or transfer by the assignee, 
 relieves him from this duty. Springer v. Chicago, etc., Co., 102 111. App. 
 294, 66 N. E. Rep. 850. 
 
 so Sexton t?. Chicago Storage Co., 129 111. 318. 
 
 ooFelch v. Taylor, 13 Pick. 130; Bagley r. Freeman, 1 Hilt. 196; 
 Smith v. Drinker, 17 Mo. 148. In New York, entry into possession is 
 necessary, to render liable on covenant for rent. Damainvillc r. Mann, 
 32 N. Y. 197; O'Rourke v. Brown, 54 N. Y. Super. Ct. 384; O'Rouike 
 r. H. P. Cooper & Co. 34 N. Y. Super. Ct. 389. In Massachusetts the 
 assignee is liable for rent without entry, if the assignment is by deed. 
 Sanders V. Partridge, 108 Mass. 556; Guienzberg v. Claude, 28 Mo. 
 App. 258. In Illinois entry is never necessary. Babcock v. Scovillc, 56 
 111. 466. 
 
 i Williams V. Bosanquet, 1 Brod. & B. 238; Fch-h r. Taylor, 13 Pick. 
 133; Pingrey v. Watkins, 15 Vt. 488; Graham v. Way, 38 Vt. 24; 
 Walton r. Cronly, 14 Wend. 63; Astor v. Hoyt, 5 Wend. 603; Astor 0. 
 Miller, 2 Paige 68; McKee V. Angelrodt, 16 Mo. 283. In Maryland, 
 entry is not necessary. Mayhew v. Hardisty, 8 Md. 479. See also, Cal- 
 vert v. Bradley, 16 How. (U. S.) 593; Salisbury r. Shirley, 66 Cal. 223; 
 Donelson v. Polk, 64 Md. 501; Oswald r. Mollett, 29 111. App. 449; 
 Reynolds v. Lawton, 8 N. Y. S. 403; Washington Nat. Gas Co. v. John- 
 son, 123 Pa. St. 576; Congregational Soc. 0. Rix (Vt.), 17 Atl. Rep. 
 719. 
 
 12 177
 
 139 ESTATES FOR YEARS. [PART I. 
 
 the lessee cannot be compelled to assume the obligations of a 
 tenant, if he abandons the possession or repudiates the ten- 
 ancy. 02 If the demise be only a sub-lease, the privity of es- 
 tate between the lessee and the original lessor is still main- 
 tained, and the sublessee is only liable to the intermediate 
 lessor on the covenants in the lease between them, although 
 he takes his title subject to the right of the original lessor 
 to effect a forfeiture of the estate for the breach of the lessee's 
 covenant of rent. 63 And a reservation of rent by the in- 
 termediate lessor, if it is an assignment, will not give him 
 a right to distrain for it. His remedy is an action to re- 
 cover on the covenant. 8 * 
 
 In order that the assignee may be protected against any 
 ouster by the original lessor, for failure of the lessee to pay 
 the rent due to him, it has been held that, before the lessee 
 can recover of his assignee, he must show that the lessor's 
 claim has been satisfied. The assignor or original lessee is 
 not released from his express covenant to pay rent, and hence 
 he may still be required to pay the rent, notwithstanding 
 the lessor's acceptance of the assignee as a tenant. But if 
 he was required to pay it, the assignor could recover it of 
 the assignee, on the principal of subrogation. 65 And if the 
 rent reserved in the second lease be larger than what is re- 
 served in the first, the parties may, by agreement, provide 
 that the lessee shall recover only the difference, while the 
 
 62 Hynes v. Ecker, 34 Mo. App. 650. But see contra, Chautauqua 
 Assembly V. Ailing, 46 Hun 582. Collection of rent from an assignee in 
 possession, under a voidable assignment, is a ratification of the as- 
 signment. Anderson v. Comeor, (N. Y. 1904) 87 N. Y. S. 449. 
 
 3Hulet v. Stockwell, 27 Mo. App. 328; In re Strasburger's Estate, 
 56 Hun 164; Otis v. Conway, 114 N. Y. 13. 
 
 64 Hicks v. Bowling, 1 Ld. Raym. 99 ; Parmenter v. Webber, 8 Taunt. 
 593; Davis v. Morris, 36 N. Y. 574. 
 
 BO Lehman v. Dreyfus, 37 La. An. 587; Farrington v. Kimball, 126 
 Miss. 313, 30 Am. Rep. 680. Collection of rent from an assignee does 
 not effect lessor's right to proceed against his lessee, for rent. Rector 
 v. Hartford Co., 102 111. App. 554. 
 
 178
 
 CH. VIII.] ESTATES FOR YEARS. 140 
 
 sublessee pays the original rent to the lessor. 66 Without ex- 
 press agreement, the lessor cannot sue the sublessee for rent. 
 There is neither privity of estate nor privity of contract be- 
 tween them to sustain the action. 67 But if the original lease 
 is surrendered to the lessor, without prejudice to under- 
 lessees, the lessor may recover subsequently accruing rent 
 from the sublessees. 68 
 
 140. Involuntary alienation. A leasehold estate is alsd 
 subject to sale under execution, and under the bankrupt and 
 insolvent laws passes to the assignee, like other personal 
 property, for the satisfaction of the lessee's debts. 69 And 
 such assignees become liable on the covenants of the lease, 
 if they accept the assignment, and exercise the rights of 
 ownership over it. 70 But the assignees have the right within 
 a reasonable time to elect whether they shall accept or re- 
 ject the lease. The mere fact that the lease is properly in- 
 cluded in the assignment will not render them liable on the 
 covenants. 71 But the assignee's rejection of the lease does 
 not release the lessee's liability under the lease, even though 
 the lessor should enter into possession, in consequence of the 
 abandonment of the premises. 72 Involuntary alienation may/ 
 be prevented, if it is explicitly stated in the lease, that suchr. 
 
 Wollaston v. Hakewell, 3 M. & G. 323; Smith v. Mapleback, 1 T. R. . 
 441. 
 
 "Halford i'. Hatch, Dougl. 187; Grandin v. Carter, 98 Mass. 16; see 
 Foster v. Reid ( Iowa ) , 42 N. W. Rep. 649. 
 
 Beal v. Boston, etc., Car. Co., 125 Mass. 157, 28 Am. Rep. 216; 
 Bailey v. Richardson, 66 Cal. 416; Appleton V. Ames (Mass.), 22 N. 
 E. Rep. 69; Otis v. Conway, 114 N. Y. 13. 
 
 Williams on Real Prop. 404; Williams on Pers. Prop. (9 ed.) 56: 
 
 TO White v. Hunt, L. R. 6 Exch. 32; Quackenboss v. Clarke, 12 Wend. 
 555; 1 Washburn on Real Prop. 523, 524. 
 
 7i Smythe v. North, L. R. 7 Exch. 242; Carter v. Warne, 4 C. & P. 
 191; Copeland v. Stephens, 1 B. & Aid. 593; Pratt v. Levan, 1 Miles 
 358; Blake v. Sanderson, 1 Gray 332; Journegy v. Brackley, 1 Hilt. 
 448; Kendrick v. Judas, 5 Caines 25; Carter v. Hammett, 18 Barb. 608; 
 Sparhawk v. Broome, 6 Binn. 256; Dorrance v. Jones, 27 Ala. 630. 
 
 Stewart v. Sprague, 76 Mich. 184. 
 
 179
 
 142 ESTATES FOR YEARS. [PART I. 
 
 a mode of alienation will work a forfeiture of the teiin. :! 
 But a simple restriction against alienation does not apply 
 to involuntary alienation. Nothing short of an actual and 
 voluntary transfer of the lessee's estate will ordinarily be 
 considered a breach of a condition or covenant against as- 
 signment. 74 
 
 141. Disposition of terms after death of tenant. A term, 
 like other personal property, can be bequeathed, or if the 
 tenant dies without making any disposition, it descends to 
 the executor or administrator, who takes it and disposes 
 of it like any other chattel, unless the restriction against 
 alienation expressly includes the personal representatives in 
 such prohibition. 75 And the right to devise a leasehold is 
 not taken away by a general condition in restraint of alien- 
 ation, although it may be by express limitation. 76 
 
 142. Covenants in a lease in general. In strict, technical 
 language, a covenant is any agreement which is executed un- 
 der the solemnity of a seal; but in this connection it is used 
 to signify the agreements, which appear in a lease, and 
 
 73 Roe v. Galliers, 2 T. R. 133; Davis v. Eyton, 7 Bing. 154. See Doe 
 v. Hawks, 2 East 481; Doe v. Clark, 8 East 185; Doe v. David, 5 
 Tyrw. 125; Cooper v. Wyatt, 5 Madd. 482; Yarnold v. Moorehouse, 1 R. 
 & Myl. 346. 
 
 7* Philpot v. Hoare, 2 Atk. 219; Doe v. Bevan, 3 M. & S. 353; Doe v. 
 Carter, 8 T. R. 300; Lear v. Leggett, 1 Russ. & M. 690; Smith v. Put- 
 nam, 3 Pick. 221; Jackson V. Corlis, 7 Johns. 531; Moore v. Pitts, 53 N. 
 Y. 85; Collins V. Hasbrouck, 56 N. Y. 157, 15 Am. Rep. 407; Hargrave 
 17. King, 5 Ired. Eq. 430; Munkwitz v. Uhlig, 64 Wis. 380; Farnum V. 
 Hefner, 79 Cal. 575. But see contra, Holliday v. Achle, 99 Mo. 273. 
 But a voluntary assignment under the bankrupt and insolvent laws is 
 not an involuntary alienation. See 1 Pars. Con. 506; In re Bush 
 (1904), 126 Fed. Rep. 878. 
 
 75 Taylor's Land & T., Sec. 408; Seers v. Hind, 1 Ves. jr. 295; Keating 
 v. Condon, 68 Pa. St. 75; 1 Washburn on Real Prop. 579; Hellwig v. 
 Bachman, 26 111. App. 165; Jacquat v. Bachman, 26 111. App. 169. 
 
 76 Fox v. Swann, Styles 483 ; Berry V. Taunton, Cro. Eliz. 331 ; Dum- 
 por v. Symmons, 76. 816; Charles v. Byrd, 29 S. C. 544. 
 
 180
 
 CH. VIII.] ESTATES FOR YEARS. 143 
 
 which bind the parties thereto, whether the lease is under 
 seal or not. 77 And it may be said generally, that unless the 
 performance of a covenant by one party to the lease is made, 
 expressly or by necessary implication, to depend upon the 
 performance of some other covenant by the other party, cove- 
 nants in leases are independent of each other, and the breach 
 of one covenant by one party is no bar to his action against 
 the other party for the breach of another covenant. 78 
 
 143. Continued Express and implied covenants. Cove- 
 nants may be express or implied. There is apparently no 
 restriction upon the number and character of the express 
 covenants which may be inserted in a lease. The parties may 
 by them change altogether their common-law liability under 
 the lease and substitute for the general rule of law express 
 limitations and obligations. 70 Implied covenants are those 
 which arise by construction of law from the employment of 
 certain words and forms of expression, such as "grant," 
 "lease," "demise," etc. 80 An important distinction exists 
 
 77 Hayne v. Cummings, 16 C. B. (N. S.) 426. No reference is made 
 here to the common-law form of the action to be used in the enforce- 
 ment of covenants in leases. The action of covenant would lie only in 
 the case of an agreement under seal, signed and sealed by the covenan- 
 tor. See Goodwin v. Gilbert, 9 Mass. 510; Pike v. Brown, 7 Gush. 133; 
 Johnson r. Mussey, 45 Vt. 419; Hinsdale v. Humphrey, 15 Conn. 431; 
 Gale f. Nixon, 6 Cow. 445; Maule v. Weaver, 7 Pa. St. 329. 
 
 78 Strohmeyer v. Zeppenfeld, 28 Mo. App. 268; Butler v. Manney, 52 
 Mo. 497. An assignee cannot sue the lessee for breach of a covenant to 
 repair, where the violation occurred prior to his entry. Foss t\ Staun- 
 ton (Vt. 1904), 57 Atl. Rep. 942. The violation of a covenant to repair, 
 will not support an action in tort, against the landlord. Spero r. Levy, 
 80 X. Y. S. 869, 43 Misc. Rep. 24; Aiken v. Perry, 119 Ga. 263, 46 S. E. 
 Rep. 93. In Louisiana, while a lessor can be compelled to repair, he 
 cannot be compelled to rebuild, in case of destruction of the buildings, 
 by fire. Jackson v. Doll, .09 Land, 230, 33 So. Rep. 207. 
 
 7 1 Washburn on Real Prop. 505. 
 
 o 1 Washburn on Real Prop. 487. But the tendency of modern deci- 
 sions is against implying covenants, which might have been expressed, 
 and this is particularly the case where the deed appears to contain all 
 the stipulations and conditions which the parties intended. See Aspen 
 
 181
 
 143 ESTATES FOR YEARS. [PART I. 
 
 between express and implied covenants in respect to the 
 effect of assignment of the lease upon the liability of the 
 lessee. He remains bound by all the express covenants con- 
 tained in the lease. His liability under them rests upon ex- 
 press personal obligation. But the liability under an implied 
 covenant arises from the privity of estate created between 
 the parties by the possession of the lessee under the lease. 
 The lessee's liability, therefore, on implied covenants deter- 
 mines with the destruction of the privity of estate by as- 
 signment or otherwise. 81 But acceptance of the assignee as a 
 tenant by the original lessor is necessary in order to absolve 
 the lessee from his liability for rent under an implied cove- 
 
 v. Austin, 5 Ad. & El. (N. S.) 684; Sheets v. Selden, 7 Wall. 423. It 
 has been held that the covenant for quiet enjoyment is implied from the 
 use of any operative words. Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 
 506. But, generally, " lease " and " demise " are the only words which 
 will raise implied covenants. See Tone v. Bruce, 8 Paige 597 ; Mayor v. 
 Mabie, 14 N. Y. 160; Maule v. Ashmead, 20 Pa. St. 482; Levering v. 
 Lovering, 13 N. H. 518; Hamilton v. Wright, 28 Mo. 199; Wake V. 
 Halligan, 16 111. 507; Playter v. Cunningham, 21 Cal. 233. 
 
 si Auriol v. Mills, 4 T. R. 98; Thursby v. Plant, 1 Saund. 241 b; Way 
 v. Reed, 6 Allen 364 ; Kimpton v. Walker, 9 Vt. 199 ; Sutliffe v. Atwood, 
 15 Ohio St. 186; Wall v Hinds, 4 Gray 250; Post V. Jackson, 17 Johns. 
 239; Quackenboss v. Clark, 12 Wend. 556; Ghegan v. Young, 23 Pa. 
 St. 18; Rowland v. Coffin, 12 Pick. 125; Lodge V. White, 30 Ohio St. 
 569, 27 Am. Rep. 492 ; Whetstone V. McCartney, 32 Mo. App. 430 ; Guinz- 
 burg v. Claude, 28 Mo. App. 258; Foss v. Staunton (Vt. 1904), 57 
 Atl. Rep. 942. There is an implied covenant that premises will be fit 
 for occupancy at commencement of term, in New York. Paugh & Co. v. 
 Ceremido, 88 N. Y. S. 1054. But see, for contrary rule, in Massa- 
 chusetts, Roth v. Adams, 185 Mass. 341, 70 N. E. Rep. 445. In some 
 States, where the premises demised are described as used for a par- 
 ticular purpose, there is an implied warranty of fitness for the pur- 
 poses of the demise. Hunter v. Porter (Idaho 1904), 77 Pac. Rep. 434. 
 But unless provided by contract or statute, there is no implied war- 
 ranty of fitness in Montana (Landt v. Schneider, 1904, 77 Pac. Rep. 
 307) ; or New York (Ducker v. Del Genovese, 87 N. Y. S. 889, 93 App. 
 Div. 575). And see, generally, as to implied covenants, Clifton V. Mon- 
 tague, 33 L. R. A. 449 and note. 
 
 182
 
 CH. VIII.] ESTATES FOR YEARS. 144 
 
 nant. 82 The following covenants are usually implied in 
 every lease. 
 
 144. Implied covenant for quiet enjoyment. This is a 
 covenant for the quiet enjoyment of the premises by the 
 lessee. It is not an absolute covenant for the protection of 
 his possession against the acts of the whole world. It ex- 
 tends only to the acts of the landlord and of strangers as- 
 serting a paramount title. The lessor does not warrant 
 against the acts of strangers who do not claim a superior 
 title. 83 But in order that his own acts may constitute a 
 breach of the covenant, they must amount to an eviction. 84 
 A mere fugitive trespass by the lessor does not work a breach 
 of the covenant for quiet enjoyment. 85 But a landlord is 
 guilty of neither trespass nor eviction when he enters for 
 the purpose of making repairs. 80 When the covenant of 
 
 v. Mills, 4 T. R. 98; Thursby v. Plant, 1 Saund. 240; 
 Fletcher v. McFarlane, 12 Mass. 43; Wall v. Hinds, 4 Gray 256; Salis- 
 bury v. Shirley, 66 Cal. 223. 
 
 ss Morse t?. Goddard, 13 Mete. 177; Ross v. Dysart, 33 Pa. St. 452; 
 Moore v. Webber, 71 Pa. St. 429, 10 Am. Rep. 708; Edgerton V. Page, 1 
 Hilt. 333; Dexter v. Manley, 4 Cush. 24; Sherman V. Williams, 113 
 Mass. 481, 18 Am. P.ep. 522; Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 
 506 ; Branger v. Manciet, 30 Cal. 626 ; Schuylkill, etc., R. R. v. Schmoele, 
 57 Pa. St. 273; Barneycastle v. Walker, 92 N. C. 198; Duncklee v. Web- 
 ber (Mass.), 24 N. E. Rep. 1082; McAlester v. Landers, 70 Cal. 79. 
 There is an implied covenant for quiet enjoyment in the grant of an in- 
 corporeal, as well as of a corporeal, hereditament. Mayor v. Mabie, 13 
 N. Y. 157. To support the implied covenant, the lease must be a valid 
 one. Webster v. Conley, 46 111. 17. 
 
 * See post, Sec. 609. 
 
 SGAvery v. Dougherty, 102 Ind. 443. 
 
 ^International Press Ass'n v. Brooks, 30 111. App. 114; White v. 
 Thurber, 55 Hun 447. No breach of a covenant for quiet enjoyment 
 arises where the entry is under eminent domain proceedings. Pabst 
 Brewing Co. v. Thorley, 127 Fed. Rep. 439. There must be an actual 
 or constructive eviction, to constitute a violation of the covenant for 
 quiet enjoyment. Roth v. Adams, 185 Mass. 341, 70 N. E. Rep. 445; 
 Fuller Co. v. Manhattan Const. Co., 88 N. Y. S. 1049; Mason v. Lande- 
 roth (N. Y. 1903), 84 N. Y. S. 740, 88 App. Div. 38; Greenwood v. 
 
 183
 
 ESTATES FOR YEARS. [PART I. 
 
 quiet enjoyment is broken, the obligation for payment of rent 
 is suspended, and the presumption in ordinary cases is, that 
 the tenant suffers no damage, the rent being an equivalent 
 of the use. If the lessee claims damage, he must show it. 87 
 
 145. Implied covenant for rent. The covenant for rent 
 is implied from the very reservation in the lease of a certain 
 stipulated sum. This implied covenant is, of course, separate 
 and distinct from any express contracts the lessor may enter 
 into. 88 
 
 146. Implied covenant against waste. By the very ac- 
 ceptance of the lease, the lessee assumes an implied obli- 
 gation to use the premises in a husbandlike manner, and to 
 keep the buildings and other structures in repair; and a 
 failure on his part to do so, subjects him to an action of 
 waste. 89 And where the lessor is obliged by the law to re- 
 pair, in a case where the lessee has covenanted to repair, 
 either expressly or by implication, the lessor can recover of 
 the lessee in an appropriate action for the expense of such 
 repairs. 00 For although the landlord is not under obli- 
 
 Wetterau, 84 N. Y. S. 287. A physical expulsion of the tenant is not 
 always essential to constitute an eviction. The intent of the landlord 
 is a question of fact for the jury. Dennick v. Ekdahl, 102 111. App. 
 199. When wrongfully evicted, a tenant can recover for all injury to 
 his business and loss of profits, when established with reasonable cer- 
 tainty. Murphy r. Bldg. Co., 90 Mo. App. 621. 
 
 STLarkin r. Misland, 100 N. Y. 212; Duncklee v. Webber (Mass.), 24 
 N. E. Rep. 1082. 
 
 ssKimpton v. Walber, 9 Vet. 198; Van Rennselaer v. Smith, 27 
 Barb, 140; Royer v. Ake, 3 Pa. 3 Pa. St. 461; 1 Washburn on Real 
 Prop. 492. Unless the tenant is put in possession of all the demised 
 premises, he can refuse to pay rent on the whole. Sullivan v. Smitt, 87 
 N. Y. S. 714, 93 App. Div. 469; Smith v. Barber, 89 N. Y. S. 317, 96 
 App. Div. 236. 
 
 8Thorndike v. Burrage, 111 Mass. 532; 1 Washburn on Real Prop. 
 492; Fenton v. Montgomery, 19 Mo. App. 156; Hoyleman v. Kanawha, 
 etc., Ry. Co., 33 W. Va. 489. See ante, Sees. 60-64, as to what acts, 
 constitute waste. 
 
 *>Hull v. Burns, 17 Abb. N. C. 317. 
 184
 
 CH. VIII.] ESTATES FOR YEARS. 146 
 
 gation to tenant to repair, if the tenant does not repair, 
 and injury results to third persons, the landlord has been 
 held liable. 91 Where the leased premises consisted of a part 
 of a tenement or other building, the general stairway and 
 walls, and roof, are not included within the lease, so as to 
 impose upon the lessee the duty of keeping them in repair. 
 The lessor is liable for any damage which may result from 
 such sources; not as lessor, but in general, as owner of the 
 property. 92 And in order that the lessor may in such a case 
 be held liable, it need not be shown that he had knowledge 
 of the need of repairs. 93 The lessor, in the absence of an 
 express covenant, is not bound to make repairs upon the 
 leased premises. But if he does undertake to make such 
 repairs, he is bound by an implied covenant to do it in a 
 workman like manner, without injury to the lessee. 9 * The 
 
 i Marshall v. Cohen, 44 Ga. 489, 9 Am. Rep. 170; Riley r. Simpson, 
 83 Cal. 217; Catts v. Simpson, 83 Cal. 217, s. c. 23 Pac. Rep. 294; 
 O'Sullivan v. Norwood, 14 Daly 286; Tomle v. Hampton, 28 111. App. 
 142, s. c. 129 111. 379; Folsom v. Lewis (Ga.), 11 S. E. Rep. 606; 
 Hungerford r. Bent, 55 Hun 3; Timlin v. Standard Oil Co.. 54 Hun 
 44. But see contra, Kalis v. Shattock, 69 Cal. 593; Ahern r. Steele, 115 
 N. Y. 203. ' 
 
 2 Ward v. Eagan, 28 Mo. App. 116; O'Sullivan v. Norwood. 14 Daly 
 286; Fisher v. Jansen, 30 111. App. 91, s. c. 128 111. 549; McGuire V. 
 Joslyn, 10 X. Y. S. 384; Dollard v. Roberts, 8 N. Y. S. 432; Lindsey 
 V. Leighton, 150 Mass. 285 ; Brennan V. Lachat, 14 Daly 197 ; Sawyer v. 
 McCillicuddy, 81 Me. 318. But see contra, Quinn v. Perham, 23 N. 
 E. Rep. 735. 
 
 3 Lindsey v. Leighton, 150 Mass. 258. 
 
 *Gott v. Gaudy, 22 Eng. Law & Eq. 173; Sheets v. Selden, 7 Wall. 
 423; Leavitt v. Fletcher, 10 Allen 121; Gill v. Middleton, 105 Mass. 
 478; Elliott v. Aiken, 45 N. H. 36; Doupe v. Gerrin, 45 N. Y. 119, 6 Am. 
 Rep. 47 ; Post v . Vetter, 2 E. D. Smith 248 ; Dexter v. King, 8 N. Y. S. 
 489; Burnes v. Fuchs, 28 Mo. App. 279; Simons f. Seward, 54 N. Y. 
 Super. Ct. 406; Cantrell v. Fowler (S. C.), 10 S. E. Rep. 934; Butler 
 r. dishing, 46 Hun 521; Weinstein V. Harrison, 66 Tex. 546; McLean 
 r. Wunder (Pa.), 19 All. Rep. 749, a. c. 26 W. N. C. 24; Wisdom V. 
 N'cwhcrry, 30 Mo. App. 241; Perez f. Rayband, 76 Tex. 191; Little r. 
 Mnoadaras, 29 Mo. App. 332, s. c. 38 Mo. App. 178; Gregor r. ( a.ly, 
 82 Me. 131. There is no implied covenant on the part of the landlord, 
 that the premises are in a tenantable condition. Jaffe v. Harteau, 56 N. 
 
 185
 
 146 ESTATES FOB YEARS. [PART I. 
 
 lessor, however, is not liable on his covenant to repair for 
 its breach, unless he has been notified or learns of the need 
 of repairs and fails to respond within a reasonable time after 
 such notice. 95 But if the person injured be a social or 
 business visitor of the tenant, or a boarder or sub-tenant, the 
 lessor is not liable for the injury unless he was under a 
 covenant to repair. 98 The lessor or lessee may enter into 
 express covenants for the repair of the premises under all 
 circumstances, and an unqualified covenant of this kind will 
 obligate the covenantor to repair, whatever may have caused 
 the damage. 97 But the implied covenant of the lessee extends 
 
 Y. 398, 15 Am. Rep. 438; Fisher v. Lightall, 4 Mackey 82, 54 Am. 
 Rep. 258; Lucas v. Coulter, 104 Ind. 81; Blake v. Ranous, 25 111. App. 
 481; Stevens v. Pierce (Mass.), 23 N. E. Rep. 1006. But see Snyder 
 v. Gordon, 45 Hun 538. But if the lessor knew at tne time when the 
 lease began that the premises were not in a healthful condition, he will 
 be liable on an implied covenant. Maywood V. Logan (Mich.), 43 N. W. 
 Rep. 1052; Leonard v. Armstrong (Mich.), 41 N. W. Rep. 695; contra, 
 Wasson V. Pettis, 117 N. Y. 118. A removal by the lessee of any part of 
 the demised premises, or a change or injury to buildings, is waste. 
 Palmer v. Young, 108 111. App. 252 ; Champ Spring Co. v. Roth Tool Co. 
 (Mo. 1903), 77 S. W. Rep. 344. 
 
 5 Thomas V. Kingsland, 12 Daly 315; O'Connor V. Gourand, 14 Daly 
 64; Alperir v. Earle, 55 Hun 211. In the absence of agreement or stat- 
 ute, there is no duty on the landlord to repair the premises. Landt v. 
 Schneider (Mont. 1904), 77 Pac. Rep. 307; Fowler Cycle Works V. 
 Fraser & Chalmers, 110 111. App. 126; Lyon V. Bauerman (N. J. 1904), 
 57 Alt. Rep. 1009; Mangolius v. Muldberg, 88 N. Y. S. 1048. And a 
 promise to repair, after commencement of term is void, as without con- 
 sideration. Fowler Cycle Works v. Fraser & Chalmers, 110 111. App. 
 126. No agreement to repair was implied in the following cases: 
 Aiken v. Perry, 119 Ga. 263, 46 S. E. Rep. 93; Borggard v. Gale, 205 
 111. 511, 68 N. E. Rep. 1063; Whitehead v. Comstock Co., 25 R. I. 423, 
 56 Atl. Rep. 446. 
 
 O'Sullivan v. Norwood, 14 Daly 286; Sterger V. Van Siclen, 7 N. 
 Y. S. 805; Fisher v. Jansen, 30 111. App. 91, s. c. 128 111. 549; Wilson 
 P. Treadwell, 81 Cal. 58; Donaldson v. Wilson, 60 Mich. 86. 
 
 97 Walton V. Waterhouse, 2 Saund. 422 ; Abby v. Billups, 35 Miss. 
 
 618; W 7 arner v. Hitchins, 5 Barb. 666; Hoy v. Holt, 91 Pa. Ct. 88, 36 
 
 Am. Rep. 558; Mclntosh v. Rector, etc., St. Phillip's Church, 120 N. Y. 
 
 71. But where an ordinance of a city, passed subsequently, prohibits 
 
 186
 
 CII. VIII.] ESTATES FOR YEARS. 147 
 
 only to repairs made necessary by the negligence <;f tlie 
 lessee. If he uses the land in a husbandlike manner, he is 
 not liable to repair any damage done by the elements or by 
 strangers without his fault. 98 The lessee cannot hold the 
 lessor liable for improvements made by the former, unless 
 the hndlord has expressly assented to the improvements be- 
 ing made at his expense." 
 
 147. Covenants running with land. If the covenant is 
 beneficial only to the owner of the land, whether he be the 
 tenant of the freehold or of the term, and relates to the 
 preservation or improvement of the land, it runs with the 
 land, passes to the assignee of the lessor or lessee, as the 
 case may be, and can be enforced by him. 1 But the lessor 
 may, in the sale of the reversion, reserve to himself the en- 
 forcement of any of the covenants which would otherwise 
 
 the erection of wooden buildings, the covenantor in a covenant to re- 
 build a wooden building is thereby released from the obligation to per- 
 form. Cordes V. Miller, 39 Mich. 581, 33 Am. Law Eep. 430. And a 
 covenant to erect a new building does not, by implication, include the 
 rebuilding of it after destruction by fire or otherwise. Cowell V. 
 Lumley, 39 Cal. 151, 2 Am. Rep. 430. 
 
 8 Wells V. Castles, 3 Gray 323; Leavitt v. Fletcher, 10 Allen 121; 
 Post V. Vetter, 2 E. D. Smith 248; Elliott v. Aikin, 45 N. H. 36; Bold 
 v. O'Brien, 12 Daly 160; Carroll v. Rigney, 15 R. I. 81; Sheer v. Fisher, 
 27 111. App. 464. 
 
 Pearson v. Sanderson, 128 111. 88. As to tenant's right to remove 
 trade fixtures, on termination of the tenancy, see, Donnelly V. Frick & 
 Co., 207 Pa. St. 597, 57 Atl. Rep. 60; Linden Oil Co. v. Jennings, 207 
 Pa. St. 524, 56 Atl. Rep. 1074. See also, ante, Sec. 18. 
 
 i Spencer's Case, 5 Rep. 16; 1 Smith's Ld. Cas. 139; Vyvyan v. 
 Arthur, 1 B. & C. 410; Patton v. Deshon, 1 Gray 325; Rowland v. 
 Coffin, 12 Pick. 125; Streaper v. Fisher, 1 Rawle 161; Cook v. Brightly, 
 46 Pa. St. 445; Scott v. Lunt, 7 Pet. 606; Crawford v. Chapman, 17 
 Ohio 449. In Illinois, the assignee of the covenantor's estate cannot 
 sue on the covenant in his own name unless the covenantee has attorned 
 to him. Fisher v. Deering, 60 111. 114. And at no time has it been 
 permitted of the assignee to sue for breaches of the covenant occurring 
 before assignment. Lewis v. Ridge, Cro. Eliz. 863; Gibbs r. Ross, 2 
 Head 437; 1 Washburn on Real Prop. 498. 
 
 187
 
 5 147 ESTATES FOR YEARS. [PART I. 
 
 run with the land. 2 A covenant is said to run with the land, 
 so as to bind assignees, when it relates to the management 
 and conduct of the land, or where its performance forms a 
 part of the original consideration upon which the lease 
 rests. 3 The usual covenants running with the land are those 
 for quiet enjoyment; 4 to insure; 8 to repair; to pay rent; 7 
 to pay taxes ; 8 to renew the lease. 9 A covenant for lessor 
 to pay for improvements, passes to the assignee of the lessee, 
 hut whether it binds the assignee of the reversion has been 
 decided both in the affirmative, 10 and in the negative. 11 Cove- 
 nants which relate to a subject-matter not in csse, as for the 
 erection of a new building upon the premises, do not run 
 wjth the land so as to bind assignees, unless they are ex- 
 
 2 Payne v. James (La.), 7 So. Rep. 457. 
 
 3 Morse v. Aldrich, 19 Pick. 749; Piggot V. Mason, 1 Paige Ch. 412; 
 Norman v. Wells, 17 Wend. 136; DeForrest V. Byrne, 1 Hilt. 43; Jack- 
 son v. Langhead, 2 Johns. 75; Blackmore V. Boardman, 28 Mo. 410; 
 Gordon v. George, 12 Ind. 408; Chautauqua Assembly v. Ailing, 46 Hun 
 582. A covenant that the lessee will not sell intoxicants on the demised 
 premises, is a covenant running with the land. Granite Building Cor. 
 f. Green, 25 R. I. 586, 57 Atl. Rep. 649; Spear v. Fuller, 8 N. H. 174, 
 28 Amer. Dec. 391; Brown v. Bragg, 22 Ind. 122; Burns v. McCubbin, 
 3 Kan. 221, 87 Amer. Dec. 468. 
 
 4 Campbell v. Lewis, 3 B. & Aid. 392 ; Williams r. Burrell, 1 C. B. 
 433; Shelton V. Codman, 3 Gush. 318; Markland v. Cramp, 1 Dev. & B. 
 94. 
 
 s Vernon v. Smith, 5 B. & Aid. 1. 
 
 Spencer's Case, 5 Rep. 16; 1 Smith Ld. Cas. 139; Demarest v. 
 Willard, 8 Cow. -206; Pollard v. Shaffer, 1 Dall. 210; Taffe v. Harteau, 
 56 N. Y. 398, 15 Am. Rep. 438; Foss v. Staunton (Vt. 1904), 57 Atl. 
 Rep. 942. 
 
 7 Graves v. Potter, 11 Barb. 592; Main V. Feathers, 21 Barb. 646 ; 
 Demarest V. Willard, 8 Cow. 206; Rowland v. Coffin, 12 Pick. 125; 
 Hurst v. Rodney, 1 Wash. C. Ct. 375; McElroy v. Brooks, 104 111. App. 
 220. 
 
 8 Astor V. Miller, 2 Paige 68 ; Host v. Kearney, 2 N. Y. 394. 
 
 9 Piggot V. Mason, 1 Paige, 412; Renond v. Daskam, 34 Conn. 512. 
 But see West. Transp. Co. v. Landing, 49 N. Y. 499; Kolasky v. 
 Mickles, 120 N. Y. 535. 
 
 10 Ecke v. Fetzer, 65 Wis! 55. 
 
 11 Hunt v. Danforth, 2 Curt. 592. See next note. 
 
 188
 
 CH. VIII.] ESTATES FOR YEARS. g 1 ' i 
 
 pressly named therein. 12 On the other hand, if the covenant 
 be of a collateral nature, i. e., to the land, it is a personal 
 obligation, and does not run with the land. And if it is in- 
 capable in law of attaching to the estate, it will not bind or 
 inure to assignees, even though they are expressly named. 13 
 
 148. Conditions in leases. In connection with the cove- 
 nants in a lease, it may be provided that the breach of the 
 covenant will work a forfeiture of the estate, and give the 
 covenantee the right of entry upon the land. But the breach 
 of a covenant will not work a forfeiture, unless the right of 
 entry is expressly reserved. 14 Nor will a covenant to pay 
 rent in advance operate as a condition precedent unless ex- 
 pressly declared to be a condition. 15 The attachment of a 
 condition of forfeiture to a covenant does not, however, inter- 
 fere with a resort to the ordinary remedies on the cove- 
 nant. 16 Like all other conditions, they can only be reserved 
 to the landlord and his assigns, and they alone can take ad- 
 vantage of the breach. If they elect to waive the forfeiture, 
 
 "Spencer's Case, 5 Rep. 16; 1 Smith Ld. Cas. 189; Congleton v. Pat- 
 tison, 10 East 138; Sampson v. Easterly, 9 B. & C. 505; Bean r. Dicker- 
 son, 2 Humph. 126; Hanson v. Meyer, 81 111. 321, 25 Am. Rep. 282. 
 
 "Spencer's Case, 5 Rep. 16; 1 Smith's Ld. Cas. 139; Keppell r. 
 Bailey, 2 Mylne & R. 517. See Vyvyan v. Arthur, 1 B. & C. 410; Aiken 
 f. Albany R. R., 26 Barb. 289; Winton's Appeal, 111 Pa. St. 387. 
 
 i* Doe v. Jepson, 3 B. & Aid. 402; Jones v. Carter, 15 M. & W. 718; 
 Clark v. Jones, 1 Denio 516; Delancey r. Ganong, 9 N. Y. 9; Wheeler 
 r. Earl, 5 Cush. 31 ; Den v . Post, 25 N. J. L. 292 ; Dennison i;. Reed, 3 
 Dana 586; Pickard v. Kleis, 56 Mich. 604. But the presumption of law 
 is always against the attachment of a condition; the condition must be 
 clearly expressed, in order to attach to the covenant. Doe v. Phillips, 
 2 Bing. 13; Spear v. Fuller, 8 N. H. 174; Wheeler v. Dascombe, 3 Cush. 
 285; Langley v. Ross, 55 Mich. 163. And conditions are always liber- 
 ally construed in favor of the covenantor or tenant, and strictly against 
 the grantor. Doe v. Bond, 5 B. & C. 855; Pillot v. Boosey, 11 C. B. (N. 
 S.) 885; Mattice v. Lord, 30 Barb. 38; Palethorp v. Bergner, 52 Pa. 
 St. 149; Mackubin v. Whetcroft, 4 Harr. & McH. 135. 
 
 is Hilsendegen f. Schcich, 55 Mich. 468. 
 
 i See Rowe v. Williams, 97 Mass. 165. 
 
 189
 
 149 ESTATES FOR YEARS. [PART I. 
 
 the estate continues with all the obligations attached thereto. 17 
 And if the lessor conveys the absolute title to the reversion, 
 with the merger of the leasehold in the fee the conditions be- 
 come extinguished. 18 The subject of estates upon condition 
 is treated more specifically in a subsequent chapter, to which 
 reference must be made to ascertain in detail the effect of 
 a breach of a condition. 19 
 
 149. Rent reserved Necessity of consideration. Au- 
 thorities are not required for the statement that a lease with- 
 out consideration cannot be enforced as long as it remains 
 
 "Morton r. Woods, L. R. 4 Q. B. 303, 18 Am. Law Rep. 525; Shum- 
 way v. Collins, 6 Gray 231; Way v. Reed, G Allen 364; Bemis v. Wilder, 
 100 Mass. 446; Clark v. Jones, 1 Denio 517; Mclntosh v. Rector, etc., 
 St. Phillips Church, 120 N. Y.; Will's Appeal, 30 Pa. 222; Creveling . 
 West End Iron Co., 51 N. J. L. 34. An express license to break the 
 covenant will constitute an absolute waiver of the condition, and the 
 covenantee cannot enter for any subsequent breach. Dumpor's Case, 4 
 Rep. 119; Cartwright v. Gardner, 5 Cush. 281; Bleecker V. Smith, 13 
 Wend. 530; Murray f. Harway, 56 N. Y. 343; Dickey v. McCullough, 2 
 Watts. & S. 88; Chipman V. Emesic, 5 Cal. 43. And so will a prayer 
 for a mandatory injunction. Chautauqua Assembly v. Ailing, 46 Hun 
 582. But a mere acquiescence in the breach, or a failure to enter for it, 
 will not discharge the condition. Doe v. Bliss, 4 Taunt. 735; Ireland 
 v. Nichols, 46 N. Y. 413; Mclntosh v. St. Phillips Church, 34 N. Y. 
 Super. Ct. 291. Unless the tenant should be able to claim the protection 
 of an estoppel. Young v. Gay, 41 La. An. 758. See post, Sec. 208. 
 
 is St. Phillips Church v. Zion Presb. Church, 23 S. C. 297. 
 
 19 Sec. 207 as to assignment of conditions. Covenants of forfeiture, 
 for breach of conditions, being regarded with disfavor, the lessor, to 
 enforce such forfeiture, must show a strict compliance with the condi- 
 tions on which such right accrued. Johnson v. Lehigh Valley Co., 130 
 Fed. Rep. 932; Schwoerer V. Connolly (1904), 88 N. Y. S. 818; West 
 Shore Co. v. Wenner (N. J. 1904), 57 Atl. Rep. 408. But see as to con- 
 dition to pay taxes, Gordon v>. Richardson, 185 Mass. 492, 70 N. E. Rep. 
 1027. And for waiver of forfeiture, see, McConnell r. Peirce, 210 III. 
 627, 71 N. E. Rep. 622; Granite Bldg. Corp. v. Green, 25 R. I. .">86, 57 
 Atl. Rep. 649; Metropolitan Land Co. r. Manning (Mo. 1902), 71 S. W. 
 Rep. 696. A forfeiture cannot, generally, be worked, without a notice 
 or hearing, by arbitrary proceedings of the lessor. Murphy v. Century 
 Co., 90 Mo. App. 621. 
 190
 
 CII. VIII.] ESTATES FOR YEARS. 14 j 
 
 executory. But as soon as it becomes executed by the trans- 
 fer of possession to the lessee, the lease is as valid and the 
 relation of landlord and tenant is as definitely established, 
 as if it had been given for a valuable consideration of some 
 sort. 20 Although not necessary to the validity of a lease, 
 it is customary and usual to reserve a rent to be paid by the 
 lessee, and its payment is enforced by the insertion of an 
 express covenant, or such a covenant is implied from its 
 reservation. The rent may consist of anything of value, 
 things or service. 21 The covenant for rent passes with the 
 assignment of the reversion to the assignee. 22 But if there 
 has been a prepayment of the rent in good faith to the 
 original lessor, before it was due, the validity of the payment 
 as a quittance of the liability for rent is in nowise affected 
 by the assignment of the reversion before the actual accru- 
 ment of such rent. The lessor's receipt for the rent is a 
 good defense to an action for the same by the assignee. 23 If 
 the reversion be divided up, and portions of the same are 
 assigned to different parties, the rent will be apportioned 
 between them. 24 The same rule of apportionment prevails 
 
 20 Allen v. Koepsel, 77 Tex. 505. , 
 2iGilpin v. Adams (Cal.), 24 Pac. Rep. 566. 
 
 22 Scott v. Lunt, 7 Pet. 590 ; Gale v. Edwards, 52 Me. 365 ; Van Rensse- 
 laer v. Smith, 27 Barb. 140; Main v. Feathers, 21 Barb. 646; Rowland 
 v. Coffin, 12 Pick. 125; Burden v. Thayer, 3 Mete. 76; Demarest v. Wil- 
 lard, 8 Cow. 206; Hurst v. Rodney, 1 Wash. C. Ct. 375; Van Rensselaer 
 V. Gallup, 5 Denio 450; Farley v. Craig, 10 N. J. L. 262; Wilson V. 
 Delaplaine, 3 Harr. 499; Snyder v. Riley, 1 Spears 272; Gibbs v. Ross, 
 2 Head 437. 
 
 23 Dreyfus v. Hirt, 82 Cal. 621. 
 
 24 Montague v. Gay, 17 Mass. 439; Mellis v. Lathrop, 22 Wend. 121; 
 Burns v. Cooper, 31 Pa. St. 428; Reed V. Ward, 22 Pa. St. 144; Peck v. 
 Northrup, 17 Conn. 217; Sampson V. Grimes, 7 Blackf. 176; Breeding 
 v. Taylor, 13 B. Mon. 477. The apportionment is never made between 
 several successive holders of the reversion according to the length of 
 holding. Whoever owns the reversion when the rent is due receives the 
 entire sum. Burden r. Thayer, 3 Mete. 76; Bank of Pennsylania v. 
 Wise, 3 Watts 394; Martin v. Martin, 7 Md. 368; Anderson v. Robbins, 
 82 Mo. 422; see ante, Sec. 55. A landlord is entitled to recover rent 
 
 191
 
 149 ESTATES FOR YEARS. [PART I. 
 
 where the reversion descends to, and is partitioned between, 
 two or more heirs. 25 In such cases it is questionable, if the 
 assignee of a part of the reversion can sue for his aliquot 
 share of the rent in his own name, without joining with the 
 others. 26 But the reversioner may sever the right to the 
 rent from the reversion. He may assign them to different 
 parties, or he may assign one and retain the other, and the 
 holder of the rent may sue on the covenant even though 
 he has no reversion in him. 27 But in the assignment of the 
 
 for the period of the occupancy of premises, although the lease is not 
 valid. Ascarete t. Pfaff (Tex. 1903), 78 S. W. Rep. 974; Merchants 
 Bank r. Routtell (N. D. 1903), 97 N. W. Rep. 953. A covenant to pay 
 rent for the whole term, is not effected by a clause, that on certain 
 contingencies the time may be shortened. McElroy f. Brooks, 104 111. 
 App. 220. The right to distrain for rent still exists in Illinois (Hill 
 r. Coats, 109 111. App. 266); Louisiana (Millott v. Conrad, 112 La. 
 928, 36 So. Rep. 807) ; and Georgia (Brooks V. Augusta Warehouse Co., 
 119 Ga. 946, 47 S. E. Rep. 341; Hardy v. Poss, ]20 Ga. 385, 47 S. E. 
 Rep. 947). 
 
 zsjaques v. Gould, 4 Cush. 484; Cole v. Patterson, 25 Wend. 456; 
 Bank of Pennsylvania v. Wise, 3 Watts 394; Reed v. Ward, 22 Pa. St. 
 144; Crosby v. Loop, 13 111. 625. If the administrator collects the 
 rent falling due after the death of the ancestor, he holds it as trustee 
 for the heirs and the widow. Mills V. Merryman, 49 Me. 65; Drink- 
 water r. Drinkwater, 4 Mass. 358; Robb's Appeal, 41 Pa. St. 45j 
 King r. Anderson, 20 Ind. 386. 
 
 26 See Martin v. Crompe, 1 Ld. Raym. 340 ; Wall v. Hinds, 4 Gray 
 256; Porter V. Bleiler, 17 Barb. 155; Decker v. Livingston, 15 Johns. 
 479; Ryerson v. Quackenbush, 26 N. J. L. 254. But see Jones v. Felch, 
 3 Bosw. 363. But the assignees may, and should, sue in their own 
 names. The rent passes as a vested interest in land, and is not a 
 chose in action. Demarest V. Willard, 8 Cow. 200 ; Van .Rensselaer V. 
 Hays, 19 N. Y. 99; Ryerson v. Quackenbush, 26 N. J. L. 254; Dixon V, 
 Xiccolls, 39 111. 384; Abercrombie v. Redpath, 1 Iowa 111; Crosby V. 
 Loop, 13 111. 625. 
 
 27 Co. Lit. 47 a; Baker v. Gostling, 1 Bing. N. C. 19; Allen v. 
 Bryan, 5 B. & C. 572; Patten V. Deshon, 1 Gray 325; Hunt v. Thomp- 
 son, 2 Allen 342; Kendall v. Garland, 5 Cush. 74; Van Rensselaer V. 
 Read, 26 N. Y. 577; Ryerson v. Quackenbush, 26 N. J. L. 254; Dixon 
 r. Xiccolls, 39 111. 384; Ala. Gold Life Ins. Co. r. Oliver, 78 Ala. 158; 
 Toan r. Pline, 60 Mich. 385; Trulock v. Donahue, 76 Iowa 758. See 
 ante, Sec. 55. 
 
 192
 
 CH. VIII. J ESTATES FOR YEARS. 151 
 
 rent without the reversion, the lessor cannot divide it up 
 among several without the consent of the lessee by attorn- 
 ment, although a devise of a part may be good without at- 
 tornmeut." 8 
 
 150. Rent reserved Condition of forfeiture. It is also 
 often provided that the estate shall be subject to forfeiture 
 if the rent is not paid. But in order that nonpayment of 
 rent may work a forfeiture of the lease, the common law 
 requires that a demand should be made of the lessee for the 
 precise amount of rent, on the day when it falls due, at a 
 convenient time before sunset, and on the land, at the most 
 prominent place upon it, usually the front door of the 
 dwelling-house, if there be any. A demand at an improper 
 place, or at the wrong time, would not give the lessor right 
 cf entry for forfeiture of the estate. 29 But the parties may 
 by agreement do away with any of the requirements, or even 
 render a previous demand unnecessary; in which case, the 
 right of entry accrues immediately upon the breach of the 
 covenant. 30 
 
 151. How relation of landlord and tenant may be termi- 
 nated. The relation of landlord and tenant, and therewith the 
 liability upon the covenants of the lease, can only be ter- 
 minated by eviction, release or surrender of the premises. 31 
 
 2Ards v. Watkins, Cro. Eliz. 637; Ryerson v. Quackenbush, 20 N. J. 
 L. 254. See ante, Sec. 55. 
 
 29 Doe r. Windlass, 7 T. R. 117; Doe v. Paul, 3 C. & P. 613; Conner 
 V. Bradley, 1 How. (U. S.) 211; McQuestess v. Margan, 34 N. H. 400; 
 Bradstreet r. Clark, 21 Pick. 389; Kimball v. Rowland, 6 Gray 224; 
 Chapman r. Harney, 100 Mass. 354 ; Ordway V. Remington, 12 R. I. 
 319, 34 Am. Rep. 646; Jackson v. Kipp, 3 Wend. 230; Jackson v. Har- 
 ri-on, 17 Johns. 66; Jenkins r. Jenkins, 63 Ind. 415, 30 Am. Rep. 
 229; Chapman v. Wright, 20 111. 120; Chapman v. Kirby, 49 111. 121; 
 Byrane r. Rogers, 8 Minn. 282. 
 
 so Doe v. Masters, 2 B. & C. 490; Fifty Associates v. Rowland, 5 
 Cush. 214; Byrane v. Rogers, 8 Minn. 282. For estoppel, waiver and 
 release from forfeiture see note to Sec. 148. 
 
 si Sheets v. Selden, 7 Wall. 224; Fuller r. Ruby, 10 Gray 290; Bain 
 
 13 193
 
 151 ESTATES FOR YEARS. [p.M T I. 
 
 Fear of an eviction is no ground for refusing to pay rent 
 or to perform the other covenants of the lease. 32 The de- 
 struction, total or partial, of the premises, or their becom- 
 ing untenantable, from any cause except the acts of the 
 lessor, will not relieve the parties from their covenants. 33 
 Nor is the lessor's performance of his covenant to repair a 
 condition precedent to the tenant's liability on his covenant 
 for rent. 3 * The covenants for rent, repair, and restoration 
 in good condition, are still binding. Destruction by fire or 
 inevitable accident is no ground of defense, unless excep- 
 tions to that effect are inserted in the lease, or the State 
 statute changes the liabilities of the parties. 35 
 
 V. Clark, 10 Johns. 424; Gates v. Green, 4 Paige Ch. 355; Dyer V. 
 Wightman, 66 Pa. St. 427. 
 
 sapickett V. Anderson, 45 Ark. 177. 
 
 ss Burns v. Fuchs, 28 Mo. App.. 279; Simons v. Seward, 54 N. Y. 
 Super. Co. 406; Cantrell u. Fowler (S. C.), 10 S. E. Rep. 934; Wein- 
 stein v. Harrison, 66 Tex. 546; McLean V. Wunder (Pa.), 19 Atl. 
 Rep. 749; Turrer v. Mantonya, 27 111. App. 500; Reliable Steam-Power 
 Co. v. Solidarity Watch Co., 10 N. Y. S. 525; Smith v. McLean, 22 111. 
 App. 451, s. c. 123 111. 210; Daly v. Wise, 7 N. Y. S. 902. 
 
 3* Newman v. French, 45 Hun 65. 
 
 35 Hill v. Woodman, 14 Me. 38 ; Kramer v. Cook, 7 Gray 550 ; Well? 
 V. Castles, 3 Gray 325 ; Hallet f. Wylie, 3 Johns. 44 ; Graves v. Beedan, 
 29 Barb. 100; Joffe V. Harteau, 56 N. Y. 398, 15 Am. Rep. 438; Dyer 
 V. Wightman, 66 Pa. St. 427; Smith v. Ankrim, 13 Serg. & R. 39; 
 Peterson v. Edmonson, 5 Harr. 378; Cowell v. Lumley, 39 Cal. 151, 2 
 Am. Rep. 430. If the tenant has covenanted " to repair and deliver 
 up " he would have to rebuild in the case of destruction by fire. 
 Bullock v. Dommitt, 5 T. R. 650; Hoy v. Holt, 91 Pa. St. 88; Maggort 
 t>. Hansbarger, 8 Leigh 536; Nave v. Berry, 22 Ala. 382. And where 
 the lessor had insured the premises, in the absence of a covenant, he is 
 not obliged to apply it to the reconstruction of the building, in case 
 of loss by fire. He may refuse, and still recover rent of the tenant. 
 Magaw v. Lambert, 3 Pa. St. 444; Bussman V. Ganster, 72 Pa. St. 289; 
 Sheets V. Selden, 7 Wall. 424; Pope v. Garrard, 39 Ga. 477; Masury 
 V. South worth, 9 Ohio St. 348. But now, as already stated in the 
 text, the common law has in most of the States been changed so that 
 if the premises are destroyed by fire or other casualty, so far as to 
 render them untenable, the tenant will be absolved from his liability 
 for rent. See Graves v. Berdan, 26 N. Y. 502, 16 Am. Rep. 659; Ripley 
 194
 
 CH. VIII.] ESTATES FOR YEARS. 152 
 
 152. What constitutes eviction. Evictions are of two 
 kinds, actual or constructive. Actual eviction is where the 
 tenant is actually ousted of his possession of the premises, 
 either by a stranger under a paramount title, or by acts of 
 dispossession by the lessor. 30 But a disturbance of the pos- 
 session by a stranger without claim of paramount title will 
 not be an eviction. 37 Nor will the dispossession in the exer- 
 cise of the right of eminent domain be such an eviction as 
 will relieve the lessee from the liability on his covenant for 
 rent. It gives, however, an action for damages against the 
 public for land so confiscated. 38 Nor would dispossession 
 by the public enemy abate the rent. 89 
 
 V. Wightaian, 4 McCord 447; Whittaker v. Hawley, 25 Kan. 674, 37 Am. 
 Rep. 277; Leavett v. Fletcher, 10 Allen 121; Stow v. Russell, 36 111. 
 35; Alger v. Kennedy, 49 Vt. 109; Smith v. McLean, 22 111. App. 351, 
 a. c. 123 ill. 210; (Jhesebrough v. Pingree (Mich.), 40 N. W. Rep. 747. 
 But a temporary uninhabitableness due to a partial destruction of the 
 buildings by fire, will not in any case justify an action, if the landlord 
 exercises reasonable diligence in restoring the premises to a good con- 
 dition. Conn. Mut., etc., Ins. Co. v. United States, 21 Ct. of Cl. 195; 
 Bonnecaze v. Beer, 27 La. An. 531; McClenahan v. New York, 102 N. Y. 
 75; Spalding v. Munford, 37 Mo. App. 281. Lease is not terminated 
 by a destruction of the building, by fire, in the absence of such a 
 covenant in the lease. Moran v. Bergen (1903), 111 111. App. 313; Ro- 
 man v. Taylor (1904), 87 N. Y. S. 653, 93 App. Div. 449. 
 
 SB Robinson v. Deering, 56 Me. 358 ; Russell v. Fabyan, 27 X. H. 543 ; 
 Boardman r. Osborn, 23 Pick. 295; Home Life Ins. Co. v. Sherman, 46 
 N. Y. 372. 
 
 8? Wells r. Castles, 3 Gray 326 ; Schuylkill, etc., R. Co. v. Schmoele, 
 57 Pa. St. 273; Moore r. Webber, 71 Pa. St. 429, 10 Am. Rep. 705; 
 Palmer v. Wetmoro, 2 Sandf. 316; Royce v. Suggenhiem, 106 Mass. 205, 
 8 Am. Rep. 322; Hazlett v. Powell, 30 Pa. St. 293. 
 
 8 Parks v. Boston, 15 Pick. 198; Patterson v. Boston, 20 Pick. 159; 
 Folts v. Huntley 7 Wend. 210; Peck v. Jones, 70 Pa. St. 85; McLarren 
 f. Spalding, 2 O'al. 510. In Missouri and elsewhere a different rule is 
 laid down, and if a part of the premises is appropriated to public 
 use, the rent is reduced pro tanto. Biddle v. Hussman, 23 Mo. 597; 
 Kingland r. Clark, 24 Mo. 24; Leiter v. Pike, 127 111. 287; see Gillespie 
 t?. Thomas, 15 Wend. 468. 
 
 8 Clifford r. Watts, L. R. 5 C. P. 568; Wagner v. White, Harr. & 
 J. 564; Schilling v. Holmes, 23 Cal. 230; contra, Bayley v. Lawrence, 
 
 195
 
 153 ESTATES FOR YEARS. [PART I. 
 
 153. Constructive eviction. Constructive eviction results 
 when the lessor, by his own act or by his own procurement, 
 renders the enjoyment of the premises impossible, or dimin- 
 ishes such enjoyment to a material degree. 40 In short, any 
 acts of omission or commission, or breaches of the lessor's 
 covenants which destroy the premises, or render them useless 
 or less enjoyable, may operate as a constructive eviction. 41 
 It is, however, not a constructive eviction if the lessee of a 
 mine exhausts the ore before the termination of his tenancy, 
 unless the lessor has expressly covenanted that the mine con- 
 tained a given quantity of ore, and the amount mined fell 
 short of that quantity. 4 - It is, however, a constructive evic- 
 tion where the covenant of the lessor that the premises are 
 suitable for certain uses, is broken. The lessee in such a case 
 is absolved from liability for rent. 43 Slight acts of tres- 
 
 1 Bay 499. As to eviction by paramount title, under condemnation 
 proceedings, see, Babaa & Co. v. Thorley, 127 Fed. Rep. 439. A failure 
 to repair by landlord is not an eviction of tbe tenant so as to excuse 
 the payment of rent. Roth v. Adams, 185 Mass. 341, 70 N. E. Rep. 
 445. But see, for removal of buildings, Rice Fisheries Co. v. Pac. Realty 
 Co., 35 Wash. 535, 77 Pac. Rep. 839. 
 
 40 Thus, the renting of a part of a house to prostitutes is a con- 
 structive eviction of the tenant of the other part of the house. 
 Dyett v. Pendleton, 8 Cow. 727; but see contra, Dewett V. Pierson, 112 
 Mass. 8, 17 Am. Rep. 58. Erections by the lessor, or with his consent, 
 so near the premises as to seriously diminish the enjoyment, would 
 constitute a constructive eviction. Royce v. Guggenheim, 100 Mass. 
 201, 8 Am. Rep. 322; Sherman V. Williams, 113 Mass. 481, 18 Am. Rep. 
 522; Wright v. Lattin, 38 111. 293; Roth v. Adams, 185 Mass. 341, 70 
 N. E. Rep. 445. 
 
 41 Tallman v. Murphy, 120 N. Y. 345; Riley V. Pettis County, 96 Mo. 
 318; Hayner V. Smith, 63 111. 430, 14 Am. Rep. 124; St. John V. Palmer, 
 5 Hill 599; Bennett V. Bittle, 4 Rawle 339; Pier V. Carr, 69 Pa. St. 
 326; Lawrence V, French, 25 Wend. 443; Fuller V. Ruby, 10 Gray 290; 
 Wilson v. Smith, 5 Yerg. 399; Alger v. Kennedy, 49 Vt. 109, 24 Am. 
 Rep. 127; Lawrence v. Burrell, 17 Abb. N. C. 312; Jackson v. Odell, 
 12 Daly 345; Bradley v. De Goicouria, 12 Daly 393. 
 
 42 Clark V. Midland Blast Furnace Co., 21 Mo. App. 58. 
 
 43 Young v. Collett, 63 Mich. 331 ; Dermick v. Ekdahl, 102 111. App. 
 W. 
 
 196
 
 CH. VIII.] ESTATES FOR YEARS. 154 
 
 pass, which do not by their material interference with the 
 enjoyment of the premises compel the tenant to abandon the 
 possession, is not a constructive eviction. The lessor is liable 
 for them, however, like any other trespasser. 44 It is also 
 no ground for claiming exemption from liability in conse- 
 quence of the emission of gases and odors from an adjacent 
 building. 45 And to relieve the tenant from liability for 
 rent on account of a constructive eviction, he must abandon 
 the possession of the premises. Retention of possession will 
 keep alive his liability on the covenants, even though his 
 enjoyment of the premises is taken away altogether. 46 
 
 154. Partial eviction. In the case of partial eviction, if 
 it results from the acts of strangers, in violation of the 
 lessor's covenant for quiet enjoyment, the tenant will be re- 
 lieved from the covenant for rent to the extent of the evic- 
 tion, while he remains liable to the lessor for the remainder. 47 
 But if it be by procurement of the lessor, the entire rent is 
 suspended during the continuance of such eviction and the 
 lessee may elect to abandon the premises, thus terminating 
 the tenancy and his liability for rent altogether. 48 If the 
 
 <*Edgerton r . Page, 20 N. Y. 281; Gardner V. Ketelas. 3 Hill. 330; 
 Elliott r. Aiken, 45 N. II. 35; Bennett r. Bittle, 4 Rawle 339; Briggs 
 V. Hall, 4 Leigh 485; Wilson P. Smith, 5 Yerg. 399; Day v. Watson, 8 
 Mich. 535. See Hayner p. Smith. 63 111. 430, 14 Am. Rep. 124. See, 
 also, Fuller Co. v. Manhattan Co., 88 N. Y. S. 1049; Mason P. Landeroth, 
 (N. Y. 1903), 84 N. Y. S. 740, 88 App. Div. 38. 
 
 <5 Franklin r. Brown, 53 X. Y. Super. Ct. 474; Sutphin p. Seebas, 12 
 Daily 139; Franklin P. Brown, 118 N. Y. 110. 
 
 4Edgerton P. Page, 20 N. Y. 281; Hurlbut P. Post, 1 Bosw. 28; 
 Dyett P. Pendleton, 8 Cow. 727; Royce p. Guggenheim, 106 Mass. 201, 8 
 Am. Rep. 322; Alger p. Kennedy, 49 Vt. 109, 24 Am. Rep. 127, and 
 cases in preceding note. Young p. Collett, 63 Mich. 231. 
 
 47 Morrison P. Chadwick, 7 0. B. 283; Hegeman P. Arthur, 1 E. D, 
 Smith 147; Lawrence r. French, 25 Wend. 443; Dyett p. Pendleton, 8. 
 Cow. 727; Martin P. Martin, 7 Md. 375. 
 
 Lewis P. Paign, 4 Wend. 323; Christopher P. Austin, 11 N T . Y. 210; 
 Shumway p. Collins, 6 Gray 227; Leishman P. White, 1 Allen 489; 
 Reed v. Reynolds, 37 Conn. 469; Colburn P. Morrill, 117 Mass. 262, 19 
 
 197
 
 155 ESTATES FOR YEARS, [PART I. 
 
 partial occupation is retained under an agreement with the 
 lessor that the rent should be proportionately reduced, there 
 can be no claim for complete exemption from liability on the 
 ground of partial eviction, even where the time of dispos- 
 session is continued beyond what had been expected. 49 In all 
 cases of eviction the tenant is exempt from the payment 
 of rent from the last pay-day prior to such eviction; but 
 the liability for rent revives if the tenant, after the eviction, 
 should resume possession of the premises. 80 If the eviction 
 is only partial, the resumption of possession will not render 
 the tenant liable for the intermediate rent for the part 
 which he continued to occupy during the continuance of such 
 eviction. 51 
 
 155. Surrender and merger. If the tenant gives up his 
 term to the immediate reversioner, he is said to surrender 
 his estate, and the estate is merged or becomes lost in the 
 reversion : the effect of which is to extinguish all liability 
 on the covenants of the lease. 52 But if an estate intervenes 
 
 Am. Rep. 415; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; 
 Smith r. Stigleman, 58 111. 141; Wilson v. Smith, 5 Yerg. 379; Pier V. 
 Carr, 60 Pa. St. 326; Schilling v. Holmes, 23 Cal. 230. But neither 
 total nor partial eviction will prevent the lessor from recovering rent 
 already due, when the eviction takes place. Giles v. Comstock, 4 N. Y. 
 270; Kessler v. McConachy, 1 Rawle 435; Kitchen Bros. r. Philbin 
 (Neb. 1901), 96 N. W. Rep. 487; Moore v. Mansfield, 182 Mass. 302, 65 
 N. E. Rep. 398. But see Soloman v. Fantozzi, 86 N. Y. S. 754. 
 
 49Kella v. Miles, 38 Hun 6. 
 
 GO Morrison v. Chadwick, 7 C. B. 283; Chatterton V. Fox, 5 Duer 
 64; Boardman V. Isborn, 23 Pick. 295; Russell r. Fabyan, 27 N. H. 
 543; Colburn v. Morrill, 117 Mass. 262, 19 Am. Rep. 415; Royce v. Gug- 
 genheim, 106 Mass. 201, 8 Am. Rep. 322; Corning v. Gould, 16 Wend. 
 538; Smith r. Stigleman, 58 111. 141. 
 
 si Upton r. Greenlees, 17 C. B. 30; Fuller r. Ruby, 10 Gray 285; 
 Leishman r. W 7 hite, 1 Allen 480 ; Lawrence v. French, 25 Wend. 443 ; 
 Anderson r. Chicago Ins. Co., 21 111. 601. 
 
 52 Co. Lit. 388 a ; 1 Washb. on Real Prop. 552; Curtis V. Miller, 17 
 Barb. 477; Greider's Appeal, 5 Pa. St. 422; Bailey v. WelK 8 Wis. 
 158; Smiley v. Van Winkle, 6 Cal. 605; Dennis v. Miller (N. J. 1902), 
 53 Atl. Rep. 394; McDonald v. May (Mo. 1902), 69 S. W. Rep 1059. 
 198
 
 CH. VIH.] ESTATES FOR YEARS. 155 
 
 between the two estates, neither surrender nor merger will 
 take place. 53 In order to prevent a merger of the term in 
 the reversion, it is a common custom, in England, to have 
 the term conveyed to trustees, and conditioned to follow the 
 reversion into whosesoever hands the latter may come. This 
 was called a term, attendant upon the inheritance, and may 
 be done whenever there is fear of incumbrances which will 
 affect the reversion while they are subject to the term. 54 
 Nor will merger i. e., the dissolution of the term in the re- 
 version take place where the two come together into the 
 possession of one person by act of the law, as, where the 
 husband has a term of years in his own right, and a term 
 of years in his wife, or tenancy by curtesy through the free- 
 hold of his wife. They will continue to exist uninfluenced 
 by their union in the one person. 55 Where two terms come 
 together in one person, the first will merge in the second, 
 even though the first be for a longer period ; unless the sec- 
 ond is created by way of remainder, when no merger will 
 result. In the latter case, the person becoming possessed 
 of both will have the benefit of both in succession. 38 
 
 631 Washbtirn on Real Prop. 553; Burton v. Barclay, 7 Bing. 745; 
 Williams on Real Prop. 413, 415; Springer's Appeal, 111 Pa. St. 274; 
 Hobson r. Silva, 137 Cal. 323, 70 Pac. Rep. 619. For merger from 
 purchase of landlord's title, by tenant at foreclosure sale, see, Mast in 
 v. Stow, 91 Mo. App. 554. 
 
 * Williams on Real Prop. 16, 417. 
 
 6l Washburn on Real Prop. 554; Williams on Real Prop. 415; 3 
 Prest. Conv. 276; Jones v. Davies, 5 Hurlst. & N. 766; Doe r. Pett, 11 
 Ad. & El. 848; Clift v. White, 19 Barb. 70. 
 
 5 Co. Lit. 273 b; 3 Prest. Conv. 201; 1 Washburn on Real Prop. 553, 
 554; Hughes v. Robotham, Cro. Eliz. 303; Stephens r. Bridges, 6 
 Madd. 66; Chamberlain v. Dunlap, 8 N. Y. S. 125. This doctrine of 
 merger is applicable to all classes of estates, and provides for the dis- 
 solution of the inferior in the greater, estate. The superiority of es- 
 tates in this connection is determined by their legal value, and not their 
 pecuniary or market value. Thus, an estate for one thousand years 
 is less than, and becomes merged in, a life estate, when the two come to- 
 gether in one person. For merger of estates, generally, see Sec. 50 and 
 note. 
 
 199
 
 156 ESTATES FOR YEARS. j I'ART I. 
 
 156. How surrender may be effected. As a general pro- 
 position, a surrender which will operate as an extinguish- 
 ment of the lessee's liability for rent and on the other cove- 
 nants of the lease, requires the same formalities of execution, 
 under the Statute of Frauds, as are necessary in the creation 
 of the lease. A lease in writing, therefore, can, as a gen- 
 eral rule, only be terminated by a surrender in writing; and 
 if the lease was required to be under seal, the surrender must 
 be also. 57 But if the lessee takes a new lease, the enjoy- 
 ment of which is incompatible with the continuance of the 
 old lease, 58 or if the lessee abandons the possession, and the 
 lessor actually enters into possession, or leases the premises 
 to other parties, such acts will be sufficient to work a sur- 
 render of the premises, so far, at least, as to relieve the ten- 
 ant from liability on his covenants. 59 But an abandonment 
 
 ST Ward r. Lumley, 5 Hurlst. & N. 88; Brady r. Peiper, 1 Hilt. 61; 
 Jackson r. Gardner, 8 Johns. 404; Allen v. Jaquish, 21 Wend. 628; 
 M'Kinney v. Reader, 7 Watts 123; Breher v. Reese, 17 111. App. 545. 
 But the lessee's surrender will in nowise affect the rights of third par- 
 ties, such as sublessees. They will still hold their rights or interests 
 in the estate; but after such a surrender, they must perform their 
 covenants to the surrenderee. He can, for example, compel the sub- 
 lessee to pay the rent to him. Adams V. Goddard, 48 Me. 212; Beal 
 v. Boston, etc., Car. Co., 125 Mass. 157, 28 Am. Rep. 216; Piggott V. 
 Stratton, 1 Johns. Ch. 355; McKenzie v. Lexington, 4 Dana 129; 
 Hessel r. Johnson, 128 Pa. St. 173. 
 
 ssLyon r. Reed, 13 M. & W. 304; McDonnell v. Pope, 9 Hare 705; 
 Shepard v. Spaulding, 4 Mete. 416; Brewer v. Dyer, 7 Cush. 339; 
 Livingston v. Potts, 16 Johns. 28; Van Rensselaer v. Penniman, 6 Wend. 
 569; Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120; Bailey v. Wells, 8 
 Wis. 141; Stuebben V. Granger, 63 Mich. 306. And where the second 
 lease is parol, while the first is written, the acceptance of the second 
 will constitute a surrender of the first, if the second lease is valid under 
 the Statute of Frauds. Thomas V. Cook, 2 B. & Aid. 119; Smith V. 
 Niver, 2 Barb. 180; Bedford V. Terhune, 30 N. Y. 463. But there will 
 be no surrender where the second lease is from one of the two original 
 lessors (Sperry V. Sperry, 8 &. H. 477; Chamberlain v. Dunlap, 8 N. 
 Y. S. 125), or the release of the first is executed by one of the two 
 original lessees. Baker v. Pratt, 15 111. 568. 
 
 5Dodd r. Acklom, 6 Mann & G. 673; Walker v. Richardson, 2 M. 
 & W. 891; Brewer v. Dyer, 7 Cush. 337; Talbot v. Whipple, 14 Allen 
 200
 
 CH. VIII.] ESTATES FOB YEARS. 156 
 
 of possession by the tenant will not work a surrender of the 
 premises, unless it is assented to by the lessor, and such ac- 
 ceptance must be shown by word or acts, such, for example, 
 as entry into possession. 60 A surrender may also be made 
 to operate in futuro. 61 
 
 180; Hegeman v. McArthur, 1 E. D. Smith 149; Brady v. Peiper, 1 Hilt 
 61; Statesbury r. Vail, 13 N. J. L. 390; M'Kinney v. Reader, 7 Watts 
 123; Wool V. Walbridge, 19 Barb. 136; Van Rensselaer v. Freeman, 6 
 Wend. 569 ; Cline r. Black, 4 McCord 431 ; Wallace V. Kennelly, 47 N. 
 J. L. 242. In Fifty Associates v. Grace, 125 Mass. 161 (28 Am. Rep. 
 218), it was held that where the lease is expressly non-assignable, and 
 the lessor assents to an assignment and a different use of the premises, 
 this assent, together with acceptance of rent from the assignee, is in 
 effect the creation of a new tenancy, and the original lessee is no 
 longer liable on his covenant for rent. See also Bailey r. Delaphine, 1 
 Sandf. 5; Logan r. Anderson, 2 Dougl. (Mich.) 101; Levering v. Lang- 
 ley, 8 Minn. 107. But the mere oral agreement to substitute another 
 in the place of the tenant will not have the effect of a surrender, un- 
 less the agreement has been carried into effect, and evidenced' by some 
 act, such as acceptance of rent from the new tenant. See Brewer V. 
 Dyer, 7 Cush. 337; Whitney r. Myers, 1 Duer 266; Vandekar v. Reeves, 
 40 Hun 430; Wallace v. Kennelly, 47 N. J. L. 242; Kedney r. Rohrbach, 
 14 Daly 54. But see, contra, Ballou V. Carton, 8 N. Y. S. 15; Winant V. 
 Hines, 14 Daly 187. Where the term ends at a fixed time, no notice to 
 terminate the tenancy is necessary. Butts V. Fox, 96 Mo. App. 437, 70 
 S. W. Rep. 515. 
 
 eo Thomas r. Cook, 2 B. & Aid. 119; Whitehead v. Clifford, 3 Taunt. 
 318; Hegeman v. McArthur, 15 N. Y. 149; Elliott v. Aiken, 45 N. H. 
 36; Stobie r. Dills, 62 111. 432; Statesbury v. Vail, 13 N. J. L. 390; 
 Boyle v. Teller, 132 Pa. St. 56; Koehler v. Scheider, 10 N. Y. S. 101. 
 
 si Allen r. Joquish, 21 Wend. 628; but an acceptance of notice that 
 the tenant is to quit at a future time, without acceptance of, or en- 
 tering into, possession, when the tenant abandons the premises, is not 
 such a surrender as will relieve the tenant from liability on his ex- 
 express covenant for rent. Johnstone v. Huddlestone, 4 B. & C. 922 ; 
 Jackson V. Gardner, 8 Johns. 404; Schiefelin v. Carpenter, 15 Wend. 
 400. Where the lessor and lessee agree upon a termination of the 
 tenancy, if there are any acts thereunder, giving this agreement effect, 
 there is a surrender of the term, in law. Dennis v. Miller (N. J. 1902), 
 53 Alt. Rep. 394; Drew v. Billings Drew Co. (Mich. 1902), 92 N. W. 
 Rep. 774. 
 
 201
 
 157 ESTATES FOR YEARS. [PART I. 
 
 157. Right of lersee to deny lessor's title. As a conse- 
 quence of the tenure existing between landlord and tenant, 
 if one person accepts a lease from another, and enters into 
 possession under the lease, he is estopped from denying the 
 lessor's title, by setting up a title in himself or in a third 
 person adverse to the right of the lessor to grant the original 
 lease, in any action for the recovery of the rent, or of the 
 possession. 02 And this principle is applied to any land, the 
 title to which the tenant may have acquired by purchase or 
 by disseisin during the continuance of the term, and which 
 he cccupied and used in connection with the leased land, 
 whether adjacent or at a distance, unless the presumption 
 of holding for the benefit of the landlord is rebutted by 
 strong and clear evidence of a contrary intention. 63 
 
 This estoppel, however, exists only during the continuance 
 cf the term, and the tenant, if he has acquired a superior 
 title, may enforce it against the lessor, after he has delivered 
 
 ezCooke v. Loxley, 5 T. R. 4; Delaney v. Fox, 2 C. B. (N. S.) 768; 
 Blight's Lessee v. Rochester, 7 Wheat. 548; Willison v. Watkins, 3 Pet. 
 43; Russell V. Fabyan, 27 N. H. 529; Longfellow v. Longfellow, 54 Me. 
 249; Boston v. Binney, 11 Pick. 8; Coburn v. Palmer, 8 Gush. 124; 
 Towne V. Butterfield, 97 Mass. 106; Franklin v. Merida, 35 Cal. 558; 
 Wells v. Sheerer, 78 Ala. 142; Morris v. Apperson (Ky.), 13 S. W. 
 Rep. 441; Oliver v. Gray, 42 Kans. 623; Killoren v. Murtauch, 64 N. H. 
 51; Palmer v. Nelson, 76 Ga. 803; Doherty V. Matsell, 119 N. Y. 646. 
 But the tenant is not estopped from setting up a tax-title purchased 
 by him during the tenancy, unless he is under obligation to pay the 
 taxes. Weichelsbaum v. Carlett, 20 Kan. 709; Bettison V. Budd, 17 
 Ark. 546; Haskell V. Putnam, 42 Me. 244. The mere taking of a 
 lease does not estop the lessee. Entry into possession is necessary to 
 create the estoppel. Chattle v. Pound, 1 Ld. Raym. 746; Nerhath v. 
 Althouse, 8 Watts 427. A showing, in an action for rent, that the 
 lessor has conveyed the premises, is not a denial of the lessor's title. 
 Allr.n v. Hall (Neb. 1 02), 92 N. W. Rep. 171. 
 
 3 Doe V. Jones, 15 M. & W. 580; Doe V. Rees, 6 C. & P. 610; Doe 
 17. Tidbury, 14 C. B. 304; Kingsmill v. Millard, 11 Exch. 813; Dixon V. 
 Baty, L. R. 1 Exch. 25J ; Lisburne v. Davies, L. R. 1 C. P. 260; Doe v. 
 Murrell, 8 C. & P. 134. See contra, Holmes V. Turner's Falls, etc., Co., 
 150 Mass. 535, 23 N. E. Rep. 305. 
 
 202
 
 CH. VIII.] ESTATES FOU YEAKS. 157 
 
 up possession to him at the expiration of the lease. 04 And 
 during the continuance of the lease, if the tenant has been 
 evicted by a stranger under the claim of a paramount title, 
 the tenant may attorn to such claimant, and deny the lessor's 
 right to recover the rent or the possession. But in order to 
 be able to set up such a defense, he must give his lessor 
 notice of the claim, and the eviction must be actual ; although 
 he need not wait to be actually put out of possession before 
 attorning to the stranger claimant. 65 He may also show 
 that the lessor's title has since been determined, and that he 
 has acquired the title to the reversion, although such de- 
 termination of the lessor's title is not a good defense, if the 
 reversion is held by a stranger, unless the lessee has been 
 actually or constructively evicted. 66 He may also show that 
 
 * Accidental Death Ins. Co. v. Mackenzie, 10 C. B. (N. S.) 870; Wil- 
 son r. Watkins, 3 Pet. 43; Longfellow v. Longfellow, 54 Me. 249; 
 Page r. Kinsman, 43 N. H. 331; Sharpe V. Kelly, 5 Denio, 431; Elliott 
 v. Smith, 23 Pa. St. 131; Shields v. Lozear, 34 N. J. L. 496; Williams 
 v. Garrison, 29 Ga. 503; Russell v. Erwin, 38 Ala. 50; Duke v. Harper, 
 6 Yerg. 280; Hodges v. Shields, 18 B. Mon. 832; Stout v. Merrill, 35 
 Iowa 47; Bonds v. Smith, 109 N. C. 333; Outtun v. Dulin (Md.), 20 
 Atl. Rep. 134; Robinson v. Hall (Ala.), 7 So. Rep. 441. And disclaimer 
 of tenancy, with abandonment of possession, will have the same effect. 
 Fuller v. Sweet, 30 Mich. 237, 18 Am. Rep. 122; Arnold v. Woodward 
 (Col.), 23 Pac. Rep. 444. 
 
 5 Mayor v. Whitt, 5 M. & W. 571; Simers v. Salters, 3 Denio 214; 
 Whalin v. White, 25 N. Y. 465; Hilbourne v. Fogg, 99 Mass. 1; Towne 
 V. Butterfield, 100 Mass. 189; Stewart V. Roderick, 4 Watts & S. 188; 
 Shields v. Lozear, 34 N. J. L. 496; Devacht v. Newsam, 3 Ohio 57; 
 Lowe v. Emerson, 48 111. 160; Casey v. Gregory, 13 B. Mon. 506; Luns- 
 ford v. Turner, 5 J. J. Marsh, 104; Voss v. King, 33 W. Va. 236; 
 Thomas v. Black (Del.), 18 Atl. Rep. 771; Hibbard v. Ramsdell, 118 
 N. Y. 38; Ratcliff r. Belfort Iron Co., 87 Ky. 559. See O'Donnell f. 
 Mclntyre, 118 N. Y. 156. 
 
 o Walton v. Waterhouse, 2 Saund. 418 n; Stack r. Seaton, 26 Minn 
 & R. 729; Jackson v. Rowland, 6 Wend. 666; Despard v. Wallbridge, 1 
 E. D. Smith 374; Hilbourn r. Fogg, 99 Mass. 11; Lanison v. Clarkson. 
 113 Mass. 348, 18 Am. Rep. 498; Pierce v. Brown, 124 Vt. 105; Duffer 
 r. Wilson, 69 Pa. St. 316; Shields V. Lozear, 34 N. J. L. 496; Franklin 
 r. Palmer, 50 111. 202; Wild's Lessee v. Serpell, 10 Gratt. 415; Homer 
 V. Leeds, 25 N. J. L. 106; Wolf v. Johnson, 30 Miss. 513; Beall v. 
 
 203
 
 158 ESTATES FOR YEARS. [PART I. 
 
 he has been induced to accept the lease through misrepre- 
 sentation or fraud, or that the lessor was not in possession 
 at the creation of the lease. 07 
 
 The same doctrine of estoppel applies to the assignees, dev- 
 isees and heirs of the, lessor. The lessee cannot dispute 
 the title of the original lessor, but he may deny the validity 
 of the assignment, the devise or the descent. 68 And in case 
 of assignment, he may dispute the original lessor's pres- 
 ent title, by setting up the title of the assignee to whom he 
 has attorned. 09 
 
 158. Effect of disclaimer of lessor's title. If the lessee 
 illegally denies the lessor's title to the land, it is virtually an 
 act of disseisin. But it will not work a rupture of the re- 
 lation of landlord and tenant except at the option of the 
 lessor. If he so elects, he may consider the lease as for- 
 
 Davenport. 48 Ga. 165, 15 Am. Rep. 656; Pickett v. Ferguson. 45 Ark. 
 177 (55 Am. Rep. 545); Rhyne v. Guevara (Miss.), 6 So. Rep. 736; 
 Hibbard r. Ramsdell, 118 N. Y. 38. 
 
 67 Accidental Death Ins. Co. V. McKenzie, 10 C. D. (X. S.) 871; 
 Tewksbury r. Magraff, 33 Cal. 237; Jackson v. Spear, 7 Wend. 401; 
 Alderson r. Miller, 15 Gratt. 279; Hockenbury v. Snyder, 2 Watts & 
 S. 240; Killoren v. Murtaugh, 64 N. H. 51; Voss v. King, 33 W. Va. 
 236; Hammons v. McClure, 85 Tenn. 65; Crockett V. Althouse, 33 Mo. 
 App. 404. 
 
 8Tnttle r. Reynolds, 1 Vt. 80; Russell v. Allard, 18 N. H. 225; Blan- 
 tin r. Whittaker, 11 Humph. 313; Beall v. Davenport, 48 Ga. 155. 15 
 Am. Rep. 656. 
 
 9Delaney r. Fox, 2 C. B. (N. S.) 778; Kimball r. Lockwood, 6 R. L. 
 138; Mass. Ins. Co. v. Wilson, 10 Mete. 126; Pierce v. Brown, 24 Vet. 
 165; Beall r. Davenport, 48 Ga. 165, 15 Am. Rep. 656; Clafflin r. Brock- 
 meyer, 33 Mo. App. 92. The estoppel to deny landlord's title binds an 
 assignee or subtenant equally with the original lessee. Owen r. Brook- 
 port, 208 111. 35, 69 N. E. Rep. 952; Simpson v. Morehead (X. J. 
 1904), 56 Atl. Rep. 887; Adams r. Shirk, 117 Fed. Rep. 8. As long 
 as the lessee is in possession, under the lessor, he cannot dispute his 
 title. Harvin r. Blackman (La. 1904), 112 La. 24, 36 So. Rep. 213; 
 Morga v. Dalton, 112 La. 9, 36 So. Rep. 208; Fuller f. Construction Co. 
 (X. Y. 1904), 88 N. Y. S. 1049; Mineral R. & M. Co. v. Flaherty, 24 Pa, 
 Super Ct. 236. 
 204
 
 CH. VIII.] ESTATES FOR YEARS. 159 
 
 feited, and treat the lessee as a disseisor. Otherwise the re- 
 lation of landlord and tenant continues, with all the attend- 
 ing liabilities and duties. 70 The Statute of Limitations will 
 not run against the lessor's title, until due notice has been 
 given to the lessor of the claim of adverse possession, and 
 will ripen into a good title only when the lessor fails within 
 the statutory period to exercise the rights of an owner over 
 the land. The payment of rent, whether voluntary or in- 
 vohr.itary, will be a sufficient acknowledgment of the tenure 
 and the lessor's title to prevent its being barred by the Stat- 
 ute of Limitations. 71 And if the lessee has the superior 
 title, the lessee's possession under the lease, it matters not 
 how long it is continued, will not operate under the Statute 
 of Limitations to bar the lessce.'s title. In such a case, the 
 lessor cannot be considered to have the seisin in law. 72 
 
 159. Options of purchase and for renewal. It is quite 
 customary of recent years, for demises of real estate to con- 
 tain options, on the part of the lessee, or tenant, on com- 
 
 Sherman v. Champlain Transp. Co., 31 Vt. 110; Greene r. Munson, 
 9 Vt. 37; Jackson v. Vincent, 4 Wend. 61)3; Jackson r. Collins, 11 Johns. 
 5; Russell v. Fabyan, 34 N. H. 223; Newman v. Rutter, 8 Watts 5; 
 Wild's Lessee v. Serpell, 10 Grant 405; Wadsworthville School v. 
 Meetze, 4 Rich. 50; Doe r. Reynolds, 27 Ala. 376; Montgomery V. 
 Craig, 3 Dana 101; Arnold r. Woodward (Col.), 23 Pac. Rep. 444; Tobin 
 v. Young (Ind.), 24 N. E. Rep. 121; Willison v. Watkins, 3 Pet. 43. 
 No notice to quit is required before ejectment. Sims V. Cooper, 106 Ind. 
 86. 
 
 " Willison V. Watkins, 3 Pet. 49 ; Zeller V. Eckhert, 4 How. 289 ; 
 Sherman v. Champlain Transp. Co., 31 Vt. 110; Bedford v. McElheron, 
 2 Serg. & R. 49; Jackson v. Wheeler, 6 Johns. 272; Whaley v. Whaley, 
 1 Speers 225; Deane v. Gregory, 3 B. Mon. 619; Lee t;. Netherton, 9 
 Yerg. 315. 
 
 72 Smythe v. Henry, 41 Fed. Rep. 705. Possession of a tenant, under 
 a lease, can never form the basis of a title by adverse possession. 
 Dixon v. Finnegan, 182 Mo. Ill, 81 S. W. Rep. 449; Morgan v. Dalton, 
 112 La. 9, 36 So. Rep. 208; Miller v. Warren (N. Y. 1904), 87 N. Y. S. 
 1011, 94 App. Div. 192. But see, for possession taken independently and 
 not as lessee, Cambridge Lodge v. Routh (Ind. 1904), 71 N. E. Rep. 
 148. 
 
 205
 
 160 ESTATES FOR YEARS. [PART I. 
 
 pliance with certain conditions precedent, to purchase the 
 leased premises, for a fixed sum, at a fixed time, or during 
 the continuance of the term. Where a lease contains an 
 option to sell, at a fixed price, this is generally held to be 
 such a continuing offer, by the lessor, or landlord, as will, 
 on acceptance of the terms, by the lessee, constitute a com- 
 plete contract of sale and bind the lessor to convey the 
 premises, on the terms agreed upon in the lease. 73 And it is 
 not infrequent that covenants to renew the tenancy are in- 
 corporated in the lease, and these covenants are also en- 
 forced, by the courts, if sufficiently definite to form the basis 
 of an action for specific performance, or for damages, in case 
 of the violation of such promises by the landlord. 7 * 
 
 160. Letting land upon shares. It is also common in 
 tin's country for the owner of land to let it to persons for 
 the purpose of cultivating it, with the agreement that the 
 parties should each have a share in the crops. Such con- 
 tracts create between the parties different relations, accord- 
 
 73 Where a lease contains an option to sell at a fixed price, this is 
 such a continuing offer, that, on acceptance, by the lessee, there is a 
 complete contract of sale. King v. Raab, 123 Iowa 632, 99 N. W. Rep. 
 306; Tilton V. Coal Co. (Utah 1904), 77 Pac. Rep. 758. But see, where 
 there are conditions precedent to be performed, to the right to exercise 
 the option to purchase. Frank V. Stratford-Hancock (Wyo. 1904), 77 
 Pa. Rep. 134. 
 
 7* A covenant for renewal will be enforced in equity, where lessee 
 elected to renew. Kaufman v. Liggett, 209 Pa. St. 87, 58 Atl. Rep. 129; 
 Neiderstein v. Cusick (N. Y. 1904), 178 N. Y. 543, 71 N. E. Rep. 100; 
 Tischner v. Rutledge, 35 Wash. 285, 77 Pac. Rep. 388. And as assignee 
 or subtenant can enforce the covenant to renew. Warner v. Cochrane, 
 128 Fed. Rep. 553, 63 C. C. A. 24. A clause that the premises were 
 demised for a period of one year, with the privilege of longer, is too 
 indefinite to be enforced. Howard v. Tomichie (Miss. 1903), 33 So. Rep. 
 493. Remaining in possession is generally sufficient evidence of an 
 election to renew the lease. Jackson v. Doll, 109 La. 230, 33 So. Rep. 
 207; Brown v. Samuels (Ky. 1902), 70 S. W. Rep. 1047; Montgomery 
 V. Co. Com., 76 Ind. 362; Kimball v. Cross, 136 Mass. 300; Harding V. 
 Seley, 148 Pa. St. 20, 23 Atl. Rep. 1118; Mershon v. Williams, 62 N. J. 
 Law 779, 42 Atl. Rep. 778. 
 206
 
 CH. VIII.] ESTATES FOR YEARS. 160 
 
 ing to their intentions, as expressed in their agreements. 
 If the intention appears to be, that the land-owner shall lease 
 the land to the farmer and that his share of the crop shall 
 be received in lieu of, or as, rent, the relation of landlord and 
 tenant is created. Under these circumstances the tenant has 
 such a vested interest in the land, as that he may convey by 
 a recorded deed the future crops, and the grantee's title 
 will prevail against an attachment by his creditors. 75 The 
 tenant is in possession of the land, and the landlord has no 
 vested interest in the crop, as a crop. His rights in, or to, 
 any part of the crop attach only upon a division and delivery 
 of the same, 76 and the landlord has no action against the 
 tenant for the delivery of his share of the crop until de- 
 mand has been made of the tenant for such delivery. 77 If 
 the tenant abandons the farm while the crop is growing, and 
 rescinds his agreement thereby, he loses all his interest in 
 the growing crop under the law of emblements. 78 But if one 
 
 "Walworth v. Jennes, 58 Vt. 670; Yates v. Kinney, 19 Neb. 275. 
 
 7*Aiken V. Smith, 21 Vt. 181; Caswell v. Districh, 15 Wend. 379; 
 Herskell V. Bushnell, 37 Conn. 43; Burns v. Cooper, 31 Pa. St. 420; 
 Rinehart v. Olwine, 5 Watts & S. 457 ; Butterfield V. Baker, 5 Pick. 
 522; Newcomb V. Ramer, 2 Johns. 421; Hatchell V. Kinsbrough, 4 
 Jones (N. C.) 163; Jordan v. Bryan, 103 N. C. 59; Pelton v. Draper, 
 61 Vt. 364. And until division, they may be attached by creditors as 
 the property of the lessee. Kelly t?. Weston, 20 Me. 232; Deaver v. 
 Rice, 4 Dev. & B. 431 ; Ross V. Swaringer, 9 Ired. 481. In some of the 
 States it is provided by statute that the lessor will in such case have 
 a lien on the undivided crop for his rent. Hopper v. Haines, 71 Md. 64 
 The parties may also expressly provide for a lien. Koeleg v. Phelps 
 (Mich.), 45 N. W. Rep. 350. 
 
 " Johnson v. Shank, 67 Iowa 115. A provision that crops are to re- 
 main the property of the lessor, until harvested, is valid, in California. 
 Summerville v. Stockton Co., 142 Cal. 529, 76 Pac. Rep. 243. A leas- 
 ing of land, for farm purposes, on shares, in Wisconsin, is held to 
 create the relation of landlord and tenant. Rowlands v. Voechting, 115 
 Wis. 352, 91 N. W. Rep. 990. See also, Northness v. Hillstead, 87 
 Minn. 304, 91 N. W. Rep. 1112; Alexander v. Zeigler (Miss. 1904), 36 
 So. Rep. 536. 
 
 TsKiplinger v. Meeks, 61 Mich. 341; Pelton v. Draper, 61 Vt. 364. 
 The tenant, under a lease on the shares, can assert a laborer's lien on 
 
 207
 
 160 ESTATES FOR YEARS. [PART I. 
 
 is employed to work a farm, with the understanding that 
 the crop shall be divided between him and the land-owner, 
 and there is no apparent intention of leasing the lands and 
 taking the share for rent, the farmer has no estate in the 
 land beyond a license to go upon it for the purposes of culti- 
 vation ; the land-owner is in possession of the land, and mus-t 
 maintain all suits for trespass and other injuries to the 
 land. The parties are tenants in common of the crop to the 
 amount of their respective shares, from the time of plant- 
 ing until a division and settlement is made; 79 and the share 
 of each in the crop is at all times, after planting, subject 
 to the claims of creditors. 80 A third relation may exist be- 
 tween the parties, viz. : that of employer and employee, where 
 the farmer is given his share of the crop, not as a partner 
 or tenant in common, but as wages. Whenever that re- 
 lation was intended by the parties, the farmer has no title to 
 any part of the crop until his share has been set apart for 
 him, 81 and he may be discharged for cause. His rights in 
 
 the crops, in Georgia. DeLoach v. Delk, 119 Ga. 884, 47 S. E. Rep. 204. 
 
 7 Tanner v. Hills, 48 N. Y. 362; Bradish v. Schenk, 8 Johns. 151; 
 Foote v. Colvin, 3 Johns. 216; Chandler v. Thurston, 10 Pick. 205; Dan- 
 iels r. Brown, 34 N. H. 454; Esdon v. Colburn, 28 Vt. 631; Jordan 
 r. Staples, 57 Me. 455 ; Guest r. Opdyke, 30 N. J. L. 544 ; Steel v. Frick, 
 56 Pa. St. 172; Walker v. Fitts, 24 Pick. 191; Delaney v. Root, 99 
 Mass. 550; Reynolds v. Reynolds, 48 Hun 142; Adams v. State, 87 Ala. 
 89; Woodward v. Conder, 33 Mo. App. 147. If the farmer is a minor 
 the presumption is against a tenancy of the land, and he will be held 
 to be a tenant in common with the land-owner of the crop. Loomis 
 f. O'Neal, 73 Mich. 582. The tenant may in such a case assign his 
 interest in the crop. Aiken v. Smith, 21 Vt. 182. But see Kelly v. 
 Watson, 20 Me. 232 ; Brown V. Lincoln, 47 N. H. 469 ; Harris v. Frink, 
 49 N. Y. 21. If the land-owner ejects the farmer before the crop is 
 ripe for the harvest, the latter's right in the crop is not thereby 
 disturbed. He can sue the land-owner for his share in trover or re- 
 plevin. Loomis . O'Neal, 73 Mich. 582. 
 
 soSchell v. Simon, 66 Cal. 264; Stickney V. Stickney, 77 Iowa 699; 
 Hoppenn v. Haines (Ind.), 18 Atl. Rep. 29. 
 
 si Hammock v. Creekmore, 48 Ark. 264; Hendricks v. Smith (Ark.;, 
 12 S. W. Rep. 781. 
 208
 
 OH. VIII.] ESTATES FOR YEARS. 161 
 
 the contract are of a personal nature, and cannot be as- 
 signed to another, at least while the contract remains execu- 
 tory. 82 It is very often difficult to determine which of 
 these relations such a contract creates. The only guide is 
 the intention of the parties, and no general rules can be 
 given except those above presented, unless, it may perhaps 
 be added, that it seems to be a presumption of law that the 
 relation is one of landlord and tenant, unless the contrary 
 intention appears. 83 If the farmer should purchase the re- 
 version to the land under a judgment against the owner, 
 the claims of such owner, under the contract for working 
 the land on shares, would pass to the purchaser as an ap- 
 purtenant, and would become merged in the farmer's gen- 
 eral ownership of the land. 84 
 
 161. Actions between landlords and tenants. Under the 
 landlord and tenant statutes of many States, the rights of 
 the respective parties to a lease are regulated by statute 
 and specific remedies are provided for any interference with 
 
 82 Jeter t. Penn, 28 La. An. 230. 
 
 83 Birmingham v. Rogers, 4C Ark. 254. 
 
 s* Culverhouse v. Worts, 32 Mo. App. 419. Where the interest of the 
 landlord, in a renting on shares in certain crops is specified, the same 
 interest attaches in those not so mentioned, if of the same nature and 
 value. Black v. Golden (Mo. 1904), 78 S. W. Rep. 301. 
 The effect of a farm lease, in Pennsylvania, where the share 
 of the tenant in several crops was specified, was held to vest that share 
 of those crops in him absolutely and the whole of all other crops not 
 so specified. In re Luckinbill, 127 Fed. Rep. 984. The tenant, under a 
 renting on shares, has such an interest in the crops as to enable him 
 to sue for any injury to his crops. Parker v. Hale (Tex. 1903), 78 
 S. W. Rep. 555; Sowles v. Martin (Vt. 1904), 56 Atl. Rep. 979; North- 
 ness r. Hillstead, 87 Minn. 304, 91 N. W. Rep. 1112; Vincent v. Crane 
 (Mich. 1903), 97 N. W. Rep. 34. The landlord is given a lien on cropa 
 raised on the shares in Missouri (Crane v. Murray, 106 Mo. App. 697, 
 80 S. W. Rep. 280) ; Texas (Planters Compress Co. v. Howard, 80 S. W. 
 Rep. 119); Iowa (Stabler v. Collins, 100 N. W. Rep. 527); South 
 Carolina (State v. Ellmore, 68 S. C. 140, 46 S. E. Rep. 939) ; Illinois 
 (Springer v. Lipsis, 209 111. 261, 70 N. E. Rep. 641), and several other 
 States. 
 
 14 209
 
 161 ESTATES FOR YEARS. [PAKT I. 
 
 the rights of the tenant by the landlord and vice versa; 
 actions are sometimes afforded for the enforcement of a 
 lien for the rent by the landlord and for the recovery of 
 possession, under summary proceedings, wherein the service 
 of process is shortened and other essentials of the common 
 law actions are dispensed with. 85 A consideration of these 
 various actions will not be attempted here, for the student 
 and practitioner would necessarily have to consult the best 
 evidence of such statutory provisions, the statutes them- 
 selves, as to the specific provisions of each. At common law, 
 the lessor was generally held liable for injuries to the lessee 
 or his family, from known defects in the demised premises, 
 existing at the time of the demise, 86 but for injuries either 
 to persons or property, arising from defects which come to 
 the leased premises, subsequent to the demise, the lessee, in 
 the absence of covenant by the landlord, would be respon- 
 sible 87 and for all injuries to the freehold the right of action 
 
 85 See 3 Joyce Dam., Sees. 1841-2229, for full discussion of these 
 various statutory remedies. 
 
 so A landlord is generally liable to a tenant for injuries from de- 
 fects in premises when demised. Udder v. O'Reilly, 180 Mo. 650, 79 
 S. W. Rep. 691 ; Donk Bros. Coal Co. v. Leavitt, 109 111. App. 385. But 
 landlord must generally know of defect to render him liable. Whitely 
 v. McLaughlin, 183 Mo. 160, 81 S. W. Rep. 1094; Schoppel r. Daly, 
 112 La. 201, 36 So. Rep. 322. For liability of landlord for known de- 
 mise of defective premises see, Davis V. Smith, 26 R. I. 129, 58 Atl. Rep. 
 630; Minor v. Sharon, 112 Mass. 477, 17 Amer. Rep. 122, 1 L. R. A. 429; 
 Sternberg v. Wilcox, 96 Tenn. 163, 33 S. W. Rep. 917, 34 L. R. A. 615; 
 Anderson v. Hays, 101 Wis. 538, 77 N. W. Rep. 891, 70 Amer. St. Rep. 
 930. 
 
 87 The lessee alone and not the lessor is liable for an injury to his 
 employees and others, from a failure to keep the leased premises in re- 
 pair, in the absence of a covenant on the lessor's part. King v. Creek- 
 more (Ky. 1903), 77 S. W. Rep. 689; McConnell v. Lemley, 34 L. R. A. 
 609; Ocean S. S. Co. v. Hamilton, 112 Ga. 901, 38 S. E. Rep. 204; 
 Whitmore V. Paper Co., 91 Me. 297, 39 Atl. Rep. 1032, 40 L. R. A. 377, 
 64 Amer. St. Rep. 229; Harrison v. Jelly, 175 Mass. 292, 56 N. E. Rep. 
 283; Griffin V. Manice, 166 N. Y. 188, 59 N. E. Rep. 925, 52 L. R. A. 
 922, 82 Amer. St. Rep. 630; Petterson v. Brewing Co. (S. D.), 91 N. 
 W. Rep. 336; Fehlhauer v. St. Louis, 178 Mo. 635, 77 S. W. Rep. 843; 
 210
 
 CH. VIII.] ESTATES FOR YEARS. 161 
 
 would be in the landlord, while the lessee alone could sue for 
 injuries to his possession. 88 
 
 Lyon v. Bauerman (N. J. 1904), 57 Atl. Rep. 1009; Prahar v. Tausey, 
 87 N. Y. S. 845; Sheridan v. Forsee, 106 Mo. App. 495, 81 S. W. Rep. 
 494; Kenny v. Barnes, 67 Mich. 336, 34 N. W. Rep. 587; White V. 
 Montgomery, 58 Ga. 204. 
 
 ss For all injuries to the freehold the landlord may sue, during the 
 continuance of the term. Arnold v. Bennett, 92 Mo. App. 156. But for 
 all injuries to the possession, not amounting to injuries to the freehold, 
 the right of action is in the tenant. Southern Ry. Co. v. State, 116 Ga. 
 276, 42 S. E. Rep. 508. 
 
 211
 
 SECTION II. 
 
 ESTATES AT WILL AND TENANCIES FROM YEAR TO YEAR. 
 
 SECTION 162. Estates at will. 
 
 163. How estates at will may be determined. 
 
 164. Estates at will distinguished from tenancy from year to 
 
 year. 
 
 165. Tenancy at will What now included under that term. 
 
 166. Tenancy at will Arising by implication of law. 
 
 167. Qualities of tenancies from year to year. 
 
 168. What notice is required to determine tenancy from year 
 
 to year. 
 
 169. How notice may be waived. 
 
 162. Estates at will. Estates at will are those estates 
 which are determinable at the will of either party, and arise 
 only upon actual possession being taken by the tenant. 89 The 
 tenant at will has no interest in the land which he can con- 
 vey to others. The relation and tenure of landlord and 
 tenant exists between the original parties to. the demise, but 
 it does not pass to the tenant's assignee. The landlord may 
 treat such assignee as a disseisor, unless he accepts rent ac- 
 cruing subsequent to the assignment. By acceptance of rent 
 the assignment would be confirmed, and the assignee recog- 
 nized as tenant. 90 The estate of the lessor of a tenant at 
 
 so Co. Lit. 55 a, 57 a; 1 Washburn on Real Prop. 581; 2 Prest. Abst. 
 26; Pollock v. Kittell, 2 Tayl. 152. The mere occupation of land with 
 the knowledge of the owner, but without his consent, does not create a 
 tenancy at will, in Missouri. Center Cr. Min. Co. v. Frankenstein, 179 
 Mo. 564, 78 S. W. Rep. 785. 
 
 00 Co. Lit. 57 a ; 1 Washburn on Real Prop. 582 ; Cunningham v. 
 Houlton, 55 Me. 33 ; Cunningham v. Horton, 57 Me. 422 ; King v. Law- 
 son, 98 Mass. 309; Hilbourn v. Fogg, 99 Mass. 12; Holbrook v. Young. 
 108 Mass. 85; Reckow v. Schanck, 43 N. Y. 448. While a tenant at 
 will has not such an interest as to enable him to make a valid as- 
 212
 
 CH. VIII.] ESTATES AT WILL. 163 
 
 will is not strictly a reversion, for the interest of the ten- 
 ant is "a mere scintilla of interest, which a landlord may 
 determine by making a feoffment upon the land with livery, 
 or by a demand of possession." A remainder cannot be 
 limited upon an estate at will. 91 The tenant, however, is en- 
 titled to estovers, and also to emblements, when the tenancy 
 is determined by the landlord. 92 And he will also be liable 
 in damages for the commission of waste, although the tech- 
 nical action of waste might not lie. 93 
 
 163. How estates at will may be determined. An estate 
 at will may be determined by any act of either party which 
 indicates an intention to put an end to the tenancy, or 
 which is inconsistent with the continuance of the relation of 
 landlord and tenant. 94 The death of either party determines 
 the estate. If the lessor dies, the estate becomes a tenancy 
 at sufferance, and the lessee's personal representatives, in 
 case of his death, have no right to possession under the ten- 
 ancy. 95 The tenancy will, however, survive, if only one of 
 
 signment thereof, if the landlord elects to recognize his assignee, such 
 assignment will be valid. Cunningham v. Holten, 55 Me. 33. The pos- 
 session of a tenant at will, is a rightful possession, as he is in with the 
 consent of the landlord, either express or implied. Willis v. Harrell, 
 118 Ga. 900, 45 S. E. Rep. 794. 
 
 9i 1 Washburn on Real Prop. 584; Ball v. Cullimore, 2 Cromp. M. & 
 R. 120. 
 
 2Co. Lit. 55 b; 1 Washburn on Real Prop. 584; Davis v. Thompson, 
 13 Me. 209; Brown f. Thurston, 56 Me. 126. A tenancy at will arises 
 whenever there is a holding over by the lessee and all the rights of 
 such tenancies, such as the right to take ice from a pond on the prem- 
 ises, attaches to such tenancy. Walker Ice Co. v. American Steel Co., 
 185 Mass. 463, 70 N. E. Rep. 937. 
 
 3Co. Lit. 57 a; Campbell r. Proctor, 6 Me. 12; Daniels t>. Pond, 21 
 Pick. 369; Phillips v. Covert, 7 Johns. 1. 
 
 Turner v. Doe, 9 M. & W. 643 ; Doe v. Prince, 9 Bing. 356 ; Wai- 
 den v. Bodley, 14 Pet. 162; Esty v. Baker, 50 Me. 325; Curl v. Lowell, 
 19 Pick. 25; Pratt v. Farrar, 10 Allen 519; Jackson v. Aldrich, 13 
 Johns. 66; Den v. Howell, 7 Ired. 496; Hildreth v. Conant, 10 Mete. 
 298; Curtis v. Galvin, 1 Allen 215. 
 
 213
 
 163 ESTATES AT WILL. [PART I. 
 
 two or more lessees dies. 08 Any assignment or conveyance 
 of the reversion, whether voluntary or involuntary, will 
 destroy the tenancy. 07 The assignment or conveyance by 
 the tenant will have the same effect, as soon as the land- 
 lord has received notice of it. Until notice, the landlord 
 may continue to treat the lessee as his tenant. 98 The estate 
 at will in the cases above enumerated would be wholly de- 
 termined, immediately upon the commission of the act, or 
 occurrence of the event. But the tenant is allowed a reason- 
 able time thereafter, within which to move his effects from 
 the premises; and where he is entitled to emblements, he 
 may still enter upon the land for the purpose of cultivating 
 and harvesting the crops. 89 No notice to quit is ever re- 
 quired to determine the estate at will; this was the early 
 common-law rule, and still obtains as an invariable incident 
 of estates strictly at will. 1 
 
 O5jaiv.es r. Dean, 11 Ves. 391; Morton v. Woods. L. R. 4 Q. B. 306; 
 Reed r. Reed, 48 Me. 388; Howard v. Merriam, 5 Cush. 563; Ferrin, 
 r. Kenney, 10 Mete. 294. 
 
 so 1 Washlnirn on Real Prop. 586; Co. Lit. 55 b. 
 
 97 Doe v. Thompson, 6 Eng. Law & Eq. 487; Hill r. Jordan, 30 Me. 
 367; Morse r. Goddard, 13 Mete. 177; Howard r. Merriam, 5 Cush. 
 563; Hemphill v. Tevis, 4 Watts & S. 535; Groustra v. Bourges, 141 
 Mass. 71. Changes in the personnel of a tenant partnership, from a 
 partnership to a corporation, acquiesced in by the lessor, does not end 
 a tenancy at will, as there is no interruption cf the occupancy. Walker 
 Ice Co. r. American Steel Co., 185 Mass. 463, 70 X. E. Rep. 937. 
 
 o* Co. Lit. 57 a; Pinhorn v. Souster, 20 Eng. Law & Eq. 501; Kelly 
 r. Waite, 12 Mete. 300; Cooper v. Adams, 6 Cush. 87; Sprague v. Quin, 
 108 Mass. 554; Cole v. Lake Co., 54 N. H. 277;. Den V. Howell, 7 Ired. 
 496. The tenancy may also be determined by the tenant's disclaimer 
 of holding under his lessor. Woodward v. Brown, 13 Pet. 1 ; Bennock 
 r. Whipple, 12 Me. 346 ; Russell v. Fabyan, 34 N. H. 223 ; Towne v . But- 
 terfield, 99 Mass. 105; Boston v. Binney, 11 Pick. 1; Chamberlain v. Don- 
 ahue, 45 Vt. 55; Sharpe v. Kelly, 5 Denio 431; Harrison v. Middleton, 
 11 Gratt. 527; Duke v. Harper, 6 Yerg. 280. 
 
 9 Co. Lit. 56 b; Doe v. McKaeg, 10 B. & C. 721; Turner V. Doe, 9 
 M. & W. 647; Ellis v. Paige, 1 Pick. 43; Rising v. Stannard, 17 Mass. 
 2S2. 
 
 r. Burgess, 5 B. & C. 332; Elliott V. Stone, 1 Gray 571; Stone 
 214
 
 CH. VIII.] ESTATES AT WILL. 164 
 
 164. Estate at will distinguished from tenancy from year 
 to year. In consequence of the many hardships resulting 
 from the uncertain tenure of estates at will, and the too 
 often arbitrary and sudden determination of them by les- 
 sors, it became at an early day a rule of law that, where 
 rent was reserved and paid by the lessee, the lessor could 
 not terminate the tenancy without giving due notice of his 
 intention to do so. Tenancies at will, where no rent was re- 
 served, could be terminated immediately upon notice.- And 
 it was obviously equitable that, in the institution of such a 
 rule, notice to the lessor should be required in case the ten- 
 ant should wish to determine the estate. 3 In this way, by 
 
 V. Sprague, 20 Barb. 509; Chilton v. Niblett, 3 Humph. 404; Brown 
 t?. Keller, 32 111. 152. No notice is required where the tenancy is de- 
 termined by the tortious acts of the tenant. Lamed v. Clark, 8 Cush. 
 29; Tr.ttle r. Reynolds, 1 Vt. 80; Jackson V. Deyo, 3 Johns. 422; Ross 
 17. Garrison, 1 Dana 35; Clemens V. Eromfield, 19 Mo. 118. And, like- 
 wise, there is no notice required where the tenancy at will is an estate 
 upon condition or limitation, and the condition is broken, or the limi- 
 tation expires. Elliott v. Stone, 1 Gray 575; Ashley v. Warner, 11 Gray 
 45 ; Bolton r. Landers, 27 Cal. 105. A tenant at will or sufferance 
 cither is entitled to notica to quit, under Michigan statute. Simons v. 
 Detroit Drill Co. (1904), 99 N. W. Rep. 862. Notice is essential to ter- 
 minrte a terv.ir.cy nt will, under the Minnesota statute. Van Brunt V. 
 Wallace, 92 X. W. Rep. 521. At common law no notice was necessary 
 to terminate either a tenancy at will or at sufferance! And such no- 
 tice is not r.ow required, r.nless a specific statute so requires. Kenin 
 v. Guvernator (N. J. 1901), 48 Atl. Rep. 1023; Joy v. McKay, 70 Cal. 
 445, 11 Pac. Rep. 703; McLeran v. Benton, 73 Cal. 329, 14 Pac. Rep. 
 879; Reed r. Reed, 48 Me. 388; Howard V. Carpenter, 22 Md. 10; 
 Moore r. Smith, 56 N. J. L. 446, 29 Atl. Rep. 159; Anderson v. Brew- 
 ster, 44 Ohio St. 576, 9 N. E. Rep. 683. Although the Missouri statute 
 provides for a thirty days' notice to end a tenancy at will, this pro- 
 vision does not apply, where, by agreement, "a longer notice is provided 
 for. Roth Tool Co. v. Champ Spring Co., 93 Mo. App. 530, 67 S. W. 
 Rep. 967. 
 
 2 1 Washburn on Real Prop. 583, 586, 597 ; Dame v. Dame, 38 N. H. 
 429; Doe r. Watts, 1 T. R. 83; Doe v. Porter, 3 T. R. 13; Kingsbury 
 V. Collins, 4 Bing. (13 E. C. L. R.) 202; Izon V. Gorton, 5 Bing. N. C. 
 <35 E. C. L. R.) 501. 
 
 Kighly v. Bulkly, Sid. 338; Bessell r. Landsberg, 7 Ad. & E. 638; 
 
 215
 
 164 ESTATES AT WILL. [PART I. 
 
 a course of judicial legislation, arose a class of estates which 
 are for an uncertain period, but which differ from the com- 
 mon-law estates at will, in that they are tenancies for an 
 uncertain number of fixed periods of time, their duration 
 being regulated by the manner of paying the rent, i. e., by 
 the month, quarter or year, and which continue to exist as 
 long as the required notice to quit is not given by either of 
 the parties. These estates are called tenancies from year to 
 year. 4 The tests by which it is determined whether an es- 
 tate for an uncertain period is a tenancy from year to year, 
 and not one at will, are the reservation of rent and the neces- 
 sity of giving notice in order to determine the tenancy. If 
 the rent is reserved, and notice to quit is required, it is a 
 1cii;incy from year to year, and the length of the fixed, in- 
 determinable period of the tenancy is governed by the time 
 of paying the rent. 5 But it is always within the power of 
 
 Johnstone V. Huddlestone, 4 Barn. & Cress. 923; Cooke f. Neilson, 10 
 Burr. 41; Hall v. Wadsworth, 28 Vt. 410; Morehead v. Watkins, 5 B. 
 Mon. 228; Holliday v. Achle, 99 Mo. 273. 
 
 * Right f. Darby, 1 T. R. 159; Hamerton v. Stead, 3 B. & C. 478; 
 Hall V. Wadsworth, 28 Vt. 410; McDowell v. Simpson, 3 Watts 129; 
 Lesley r. Randolph, 4 Rawle 123 ; Jackson v. Salmon, 4 Wend. 327 ; Web- 
 ber r. Shearman, 3 Hill 547; Patton v. Axley, 5 Jones L. 440; Den 
 V. Drake, 14 N. J. L. 523; Godard r. Railroad Co., 2 Rich. L. 346; Ridg- 
 ley V. Stillwell, 28 Mo. 400. A definite tenancy from year to year, 
 does not require any notice to quit. Cobb v. Stokes, 8 East 358; 
 Preble v. Hay, 32 Me. 456; Dorrill v. Johnson, 17 Pick. 263; Allen v. 
 Jacquish, 21 Wend. 628; Jackson r. McLeod, 12 Johns. 182; Den v. 
 Adams, 12 N. J. L. 99; Lesley r. Randolph, 4 Rawle 125; Lojrnn r. 
 Herron, 8 Serg. & R. 459; Walker v. Ellis, 12 111. 470. Under statute, 
 in Georgia, any letting, where the period of the tenancy is not specified, 
 is a tenancy for the calendar year. Willis v. Harrell, 118 Ga. 906, 45 
 S. E. Rep. 794. But in Nebraska, the intent of the parties controls. 
 Pusey v. Presbyterian Hospital, 97 N. W. Rep. 475. 
 
 5 Richardson V. Landridge, 4 Taunt. 128; Doidge v. Bowers. 2 M. & 
 W. 365; Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615; Jackson r. Bradt, 
 2 Caines 169; McDowell r. Simpson, 3 Watts 129; Doe v. Baker, 4 Dev. 
 220; Shipman r. Mitchell, 04 Tex. 174. In Maine and Massachusetts 
 the doctrine of tenancies from year to year has never been adopted ; 
 and although notice is now required to determine those tenancies which,. 
 
 216
 
 CH. Vin.] ESTATES AT WILL. 164 
 
 the parties, by express agreement, to give to the estate the 
 characteristics of a tenancy at will, even though the rent is 
 reserved. And if in such a case the tenancy is determined 
 by the lessor between the interval of payment of the rent, 
 the landlord can only recover rent accruing up to the last 
 pay-day. 6 The term "year" in the tenancy from year to 
 year is here used as a unit of time, and under the term 
 tenancy from year to year are included tenancies from month 
 to month, quarter to quarter, and the like, in the same man- 
 ner as an estate for years includes an estate for one month. 7 
 Mr. Washburn seems to exclude these estates from the ten- 
 ancies fVom year to year, and calls them tenancies at will r 
 in which notice to quit is required. 8 There is no necessity 
 for this distinction, and the classification here employed 
 seems to bring out more prominently the distinctive features 
 of estates at will, and tenancies from year to year. 
 
 in other States, would come under the name of tenancies from year 
 to year, they are not recognized there as hrving the characteristics of 
 durability, which are given to them elsewhere. See Moore v. Boyd, 24 
 Me. 242; Withers v. Larrabee, 48 Me. 513; Rising v. Stannard, 17 
 Mass. 282 ; Furlong v. Leary, 8 Gush. 409; Walker v. Furbush, 11 
 Cush. 366; Bunton v. Richardson, 10 Allen 260; Hillbourn v. Fogy, 99> 
 Mass. 1. 
 
 Richardson r. Landgridge, 4 Taunt. 128; Doe r. Cox, 11 Q. B. 122; 
 Cameron r. Little, 62 Me. 550; Elliott v. Stone, 1 Gray 571; Harrison 
 r. Middleton, 11 Gratt. 527; Sullivan r. Enders, 3 Dana 66; Withnell 
 C. Petzold, 17 Mo. App. 669. 
 
 7 See Anderson r. Prindle, 23 Wend. 610. A tenancy from month to 
 month is usually treated as a tenancy from year to year and the same 
 incidents attach, aside from the periods of payment and the time for 
 notice to terminate such tenancies. Taylor Land & Ten., 57 ; Hollis . 
 Burns, 100 Pa. St. 206; Tiffany Real Prop., Sec. 57, p. 146. 
 
 s 1 Washburn on Real Prop. 598, 599, 610. 
 
 "Richardson v. Landgridge, 4 Taunt. 128; Doe v. Wood, 14 M. & W. 
 fisi> : rjarrard r. Tuck, 8 C. B 231; Rex v. Collett, 1 Russ. & Ry. 498; 
 Mel ling r. Leak, 16 C. B. 652; Gould r. Thompson, 4 Mete. 224; Jack- 
 son r. Pierce, 2 Johns. 226; Bedford v. Terhune, 30 N. Y. 465; Mat- 
 thews f. Ward, 10 Gill & J. 456. And where tenant is in possession 
 without agreement as to paying rent or the length of his holding, and he 
 refuses to pay rent, the tenancy is strictly one at will, although he has. 
 
 217
 
 166 ESTATES AT WILL. [PART I. 
 
 S 165. Tenancy at will T7hat now included under that 
 term. As the law now stands, an express tenancy at will can 
 only arise under two circumstances: first, where land is leased 
 for an indefinite period, and no rent is reserved for its use 
 and occupation, 9 and, secondly, where there is rent reserved. 
 and, by the express agreement of the parties, the tenancy* 
 is to have the characteristics of a tenancy at will. Parties 
 may agree to waive the right to notice. 10 
 
 166. Tenancy at will Arising by implication of law. 
 When a tenant enters upon the land for some other purpose 
 than to create the relation of landlord and tenant, and his 
 entry is under, and in pursuance of, a grant to him of a 
 larger and more definite interest, until such interest is vested 
 in him, the law treats and considers his possession as that 
 of a tenant at will. Such would be the case where one is 
 permitted to enter into possession under a contract for the 
 purchase of the land, or for a future lease of the same. 11 
 The tenant would not be liable for rent for the time he 
 
 lieen in possession fourteen years, and the six months' notice required 
 in cases of tenancies from year to year is not necessary to terminate his 
 tenancy. Rich r. Bolton, 46 Vt. 84, 14 Am. Rep. 315; Dunne r. Trus- 
 tees, etc., 36 111. 518. 
 
 10 Richardson V. Landgrirtgo, 4 Tai'.nt. 128 ; Doe V. Davies, 7 Exch. 
 89; Cudlip v. Randall, 4 Modern 9; Harrison r. Middleton, 11 Gratt. 
 527; Humphries v. Humphries, 3 Ired. 3G2; Sullivan v. Enders, 3 
 Dana 56. Or a longer notice than that required by statute may be 
 agreed upon. Roth Tool Co. v. Champ Spring Co., 93 Mo. App. 530, 67 
 S. W. Rep. 967. 
 
 nHamerton r. Stead, 3 Barn. & Cress. 478; Howard V. Shaw, 8 M. & 
 W. 118; Doe r. Chamberlain, 5 M. & W. 14; Gould v. Thompson. 4 
 Mete. 224; White r. Livingston, 10 Cush. 589; Silsby v. Allen, 43 Vt. 
 177; Jackson i: Miller, 7 Cow. 747; Jackson v. Bradt, 2 Caines 169; 
 Freeman r. Headley, 33 N. J. L. 523; Jones v. Jones, 2 Rich. 542; 
 Carson v. Baker, 4 Dev. 220; Danne v. Trustees, 39 111. 583; Jennings 
 v. McComb, 112 Pa. St. 518; Watson v. Pugh, 51 Ark. 218; Walker Ice 
 Co. v. American Steel Co. (1904), 185 Mass. 463, 70 N. E. Rep. 937. 
 But the occupation must be with the owner's consent. Center Cr. Min. 
 Co. V. Frankenstein, 179 Mo. 564, 78 S. W. Rep. 785. 
 
 218
 
 ESTATES AT WILL. 166 
 
 has occupied the land, unless there is an express agreement 
 to that effect. 1 - But he will render himself liable for rent, 
 if he retains possession after the executory contract, under 
 which he entered, has come to an end, as well as where he 
 surrenders his right cf purchase and continues to hold pos- 
 session, with the intention to become a tenant. 13 And he 
 will also be liable in an action for damages for use and oc- 
 cupation during the pendency of the contract, if the failure 
 of such contract is the result of his own refusal or inability 
 to fulfill his obligations under it. 14 The rent is recovered 
 in such a case, not on any implied contract to pay for the 
 use and occupation in the event that the tenant fails to per- 
 form his part of the contract, but on the theory that, his 
 possession being given witli a view to the tenant's perform- 
 ance of the contract, his failure to perform makes his hold- 
 ing a trespass ab initio; or the rent may be asked for as 
 damages suffered from the tenant's breach of the contract 
 of sjiie. 1 " In a similar manner is the vendor liable as ten- 
 
 '-' Winterbottom v. Ingham, 7 Q. B. Gil; Howard V. Shaw, 8 M. & W. 
 118; Dennett r. Penobscot Company, 57 Me. 425; Cunningham v. Holton, 
 r>r> Me. 33; Woodbury r. Woodbury, 47 N. H. 11; Hough v. Birge, 
 11 Vt. 190; Little V. Pearson, 7 Pick. 301; Dakin t;. Allen, 8 Gush. 
 33; Slyvester v. Ralston, 31 Barb. 280; Doolittle V. Eddy, 7 Barb. 74; 
 Hasle v. McCoy, 7 J. J. Marsh, 319 ; Tell v. Ellis, 1 Stew. & P. 294; 
 McKillsauk r. Bnllington, 87 Miss. 535; Coffman v. Huck, 24 Mo. 496. 
 
 is Barton r. Smith, 66 Iowa 75. 
 
 "Howard v. Shaw, 8 M. & W. 118; Tancred v. Christy, 12 M. & W. 
 324; Gould r. Thompson, 4 Mete. 228; Hall V. West. Transp. Co., 34 N. 
 Y. 291; Wright v. Roberts, 22 Wis. 161; Pinero v. Judson, 6 Bing. 206. 
 
 "Burdett v. Caldwell, 9 Wall. 293; Chamberlain v. Donahue, 44 Vt. 
 59; Kistland v. Pounsett, 2 Taunt. 145; Bancroft v. Wardwell, 13 
 Johns. 489; Smith v. Stewart, 6 Johns. 46; Vanderhuevel r. Storrs, 3 
 Conn. 203; Bell V. Ellis, 1 Stew. & P. 204; Brewer r. Conover, 18 N. 
 J. L. 215; Johnson v. Beauchamp, 9 Dana 124. But see Forbes v. 
 Smiley, 56 Me. 174; Boston v. Binney, 11 Pick. 9; Gould v. Thompson, 
 4 Mete. 228; Hull v. Vaughan, 6 Price 157. See, also, Cook r. Klenk 
 (1904), 142 Cal. 416, 76 Pac. Rep. 57; Todhunter v. Armstrong (Ool.), 
 53 Pac. Rep. 446; Kerraine v. People, 60 N. Y. 224, 19 Amer. Rep. 158; 
 Chatard v. O'Donovan, 80 Ind. 20, 41 Amer. Rep. 782. 
 
 219
 
 167 TENANCIES FROM YEAR TO YEAR. [PART I. 
 
 ant at will for use and occupation, if he retains possession 
 of the land, after the contract of purchase has been executed 
 and the deed of conveyance delivered. If the vendor re- 
 tains possession with consent of the vendee, the action will 
 be on an implied contract for rent, while he would be liable 
 in trespass for damages, if such holding was without the 
 permission of the grantee. 16 
 
 167. Qualities of tenancies from year to year. As a con- 
 sequence of the rule requiring a certain notice of the in- 
 tention to terminate the estate, before such termination can 
 take place, the tenant was held to be possessed of a fixed 
 and indefeasible estate for a definite period, the length of 
 which is controlled by the character and the terms of the 
 contract for rent (if it be a yearly rental, this estate is for 
 one year, and if the rental be monthly, it is for one month), 
 together with an indefinite obligation to continue the rela- 
 tion of landlord and tenant, until it is determined by the 
 proper notice from either of the parties. 17 The tenant's es- 
 tate survives the death of the tenant and goes to his personal 
 representatives. It is also capable of assignment, 18 and the 
 tenant may maintain his action for trespass quare clausum 
 fregit against all intruders, including the landlord. 19 Nor 
 
 16 Tew r. Jones, 13 M. & W. 14; Carrier V. Earl, 13 Me. 216; Nichols 
 r. Williams, 8 Cow. 13. But see contra, Preston v. Hawley, 101 N. Y. 
 586. See, Boughton V. Boughton, 77 Conn. 7, 58 Atl. Eep. 226. 
 
 "Hamerton v. Stead, 3 B. & C. 478; Roe v. Lees, 2 W. Bl. 1173; 
 Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615; Lockwood V. Lockwood, 22 
 Conn. 425; Jackson v. Bradt, 2 Caines 169; The People v. Darling, 47 
 N. Y. 666; Lesley v. Randolph, 4 Rawle 123; 4 Dev. 220; Williams V. 
 Deriar, 31 Mo. 1; Secor v. Pestana, 35 111. 528. 
 
 is Doe r. Porter, 3 T. R. 13; Batting v. Martin, 1 Camp. 317; 1 
 Washb. on Real Prop. 604; 2 Prest. Abst. 25. See Morton v. Woods, 
 L. R. 4 Q. B. 306 ; Witt V. Mayor of New York, 6 Robt. 447. An agree- 
 ment by one co-tenant to pay his co-tenant for his share of the property, 
 does not make him a mere tenant at will. Smith v. Smith (1904), 98 
 Me 597, 57 Atl. Rep. 999. 
 
 19 Moore V. Boyd, 25 Me. 242; Cunningham v. Holton, 55 Me. 33; 
 Dickinson v. Godspeed, 8 Cush. 119; French t?. Fuller, 23 Pick. 107; 
 220
 
 CH. VIII.] TENANCIES PROM YEAR TO YEAR. 168 
 
 is it determined by the grant of the reversion by the lessor.- 
 In other words, the estate of the tenant from year to year 
 cannot be determined, nor can the tenant relieve himself 
 from liability for rent, except by giving a notice, having 
 the requisites both as to length and the time of giving it, of 
 his intention to determine the tenancy. 
 
 168. What notice is required to determine tenancy from 
 year to year. The length of time required to be observed in 
 giving notice is regulated by statute, and generally varies 
 with the length of the periods between the payments of rent. 
 If it be a yearly rental, the English rule, which is followed 
 in some of the States, requires six months' notice; 21 while in 
 some other States, a shorter time, usually three months, is re- 
 quired. 22 If the rental be for a period less than one year, 
 as by the quarter, the month, etc., then, as a general rule, 
 the notice must be for as long a time as the periods of pay- 
 ment. 23 If the statute requires notice, but the length of the 
 
 Clark v. Smith, 25 Pa. St. 437; Cunningham v. Horton, 57 Me. 422; 
 Fuller Co. v. Manhattan Const. Co. (1904), 88 N. Y. S. 1049. 
 
 20 McDonald v. Hanlon, 79 Cal. 442. 
 
 21 Doe v. Watts, 7 T. R. 83; Bessell v. Landsberg, 7 Q. B. 638; 
 Jackson V. Bryan, 1 Johns. 322 ; Den v. Drake, 14 N. J. L. 523; Den V. 
 Mclntosh, 4 Ired. 291; Moorehead v. Watkins, 5 B. Mon. 228; Trousdale 
 v. Darnell, 6 Yerg. 431; Hunt v. Morton, 18 111. 75. But see Secor v. 
 Pestana, 35 111. 528. 
 
 22 Currier v. Perley, 24 N. Y. 219; Logan v. Herron, 8 Serg. & R. 
 459; Floyd v. Floyd, 4 Rich. 23. In West Virginia, a tenant from year 
 to year must give notice to end the term and cannot avoid payment of 
 rent by abandoning the possession. Arbenz v. Exley & Co., 52 W. Va. 
 470, 44 S. E. Rep. 149. 01 L. R. A. 957. See, also, Baltimore Dental 
 Ass'n r. Fuller, 101 Va. 627, 44 S. E. Rep. 771. 
 
 23 l Washburn on Real Prop. 610; Taylor's Land & T. 50; Doe v. Ha- 
 zell, 1 Esp. 94; Sanford v. Harney, 11 Cush. 93; Cunningham r. Horton. 
 57 Me. 422; Lloyd v. Cozens, 2 Ashm. 131; Godard v. S. C. R. R., 2 
 Rich. 346; Secor v. Pestana, 35 111. 528; Grunewald v. Schaales, 17 Mo. 
 App. 324. In tenancies from month to month a notice to quit is usually 
 required to be given during the current month, or at the first of the 
 next month, in order for it to date from the first day of the succceeding 
 month. Teator v. King (1904), 35 Wash. 138, 76 Pac. Rep. OS1 ; Drin-
 
 168 TENANCIES PROM YEAR TO YEAR. [PART I. 
 
 notice is not stipulated, it is held that a reasonable notice 
 must be given. 24 And the parties may always by special 
 agreement control the length and other provisions of the no- 
 tice, the special agreement providing a substitute for the re- 
 quired notice. 23 The notice must not only be given for a cer- 
 tain length of time before the estate is to terminate, but the es- 
 tate can only be determined at the expiration of the time 
 during which the tenant may lawfully hold, i. e., at the end 
 of each rental period; it can only be determined at the end 
 of the year, quarter, or month, according as the tenancy is 
 respectively a yearly, quarterly, or monthly rental. 26 This 
 notice must be sufficiently clear in its terms as to the time 
 when the tenancy is to expire ; 27 and must, as a general rule, 
 be served upon the tenant personally, although it may be 
 left at the tenant's dwelling-house, with a servant or other 
 person of discretionary age, who appears to be in charge of 
 
 kard v. Hempinstall (W. Va. 1904), 47 S. E. Rep. 72; Wilson r. Wood 
 (Miss. 1904), 36 So. Eep. 609; McDevitt v. Lambert, 80 Ala. 537. 2 So. 
 Rep. 438; Steffens v. Earl, 40 N. J. Law 128, 29 Amer. Rep. 214; Hollis 
 v. Burns, 100 Pa. St. 206, 45 Amer. Rep. 379. All oral leasings of city 
 property, in Missouri, are tenancies from month to month. Squire v. 
 Ferd Heim Co., 90 Mo. App. 462. 
 
 2*Ludington v. Garloch, 9 N. Y. 24; Payton v. Sherburne, 15 R. I. 
 213. A ten days' notice is held unreasonable and insufficient to ter- 
 minate a tenancy by the year, in Arkansas. Bromley v. Bromley, 70 
 Ark. 351, 68 S. W. Rep. 32. 
 
 zsWoolsey v. Donnelly, 5 N. Y. S. 238. Rotli Tool Co. v. Champ 
 Spring Co., 93 Mo. App. 530, 67 S. W. Rep. 967. 
 
 26 Doe V. Morphett, 7 Q. B. 577; Cunningham v. Holton, 55 Me. 33; 
 Currier v. Barker, 2 Gray 224; Sanford V. Harvey, 11 Gush. 93; Oakes 
 V. Monroe, 8 Cush. 285; Godard v. S. C. R. R., 2 Rich. 346; Lloyd V. 
 Cozens, 2 Ashm. 131; Waters v. Young, 11 R. I. 1, 23 Am. Rep. 409; 
 Steffens v. Earl, 40 N. J. L. 128, 29 Am. Rep. 214; Wilson v. Rodeman, 
 30 S. C. 210; Adams v. City of Cohoes, 53 Hun 260; Teator r. King 
 (1004), 35 Wash. 138, 76 Pac. Rep. 688; Drinkard v. Hempinstall (W. 
 Va. 1904), 47 S. E. Rep. 72. 
 
 27 Mills r. Goff, 14 M. & W. 72; Hanchet v. Whitney, 1 Vt. 311; 
 Currier v. Barker, 2 Gray 224; Granger v. Brown, 11 Cush. 191; Doe 
 v. Morphett, 7 Q. B. 577; Doe V. Smith, 5 A. & E. 350; Doe v. Wilkin- 
 son, 12 A. & E. 743. 
 
 222
 
 CH. VIII.] TENANCIES FROM YEAR TO YEAR. 169 
 
 the premises. 28 There may, of course, always be a surrender 
 of the tenancy, with the consent of both parties, at any time 
 during the tenancy, and without any previous notice. 29 And 
 so, likewise, the notice is not required where the lease by 
 its terms terminates upon the breach of a condition. 30 
 
 169. How notice may be waived. Such notice, when it 
 fulfills all the requirements of the law, puts an end to the 
 tenancy, unless the landlord accepts rent accruing after the 
 expiration of the notice. Such acceptance of rent will gen- 
 erally constitute a waiver of the notice, and the tenancy be- 
 comes re-established. 31 But in all such cases it is a matter 
 depending upon the intention of the parties, and the re- 
 ceipt of such rent is open to explanation, and the evidence 
 is admissible to show that the landlord had no intention of 
 waiving the notice, provided the tenant also had knowledge 
 of that fact. 32 An express agreement to waive the notice 
 and to permit the tenant to remain in possession is in effect 
 a revival of the original tenancy with all its terms, con- 
 ditions and limitations, which is equally binding upon both 
 parties. 33 
 
 28l>oe v. Dunbar, 1 Mood & M. 10; Jones v. Marsh, 464; Hatstat v. 
 Packard, 7 Cush. 245; Walker V. Sharpe, 103 Mass. 154; Birdsall v. 
 Philips, 17 Wend. 464; Bell v. Bruhn, 30 111. App. 300. If left upon 
 the premises, without being placed in the hands of some responsible 
 person, it will only be a good notice to quit, if it actually reaches the 
 tenant. 
 
 20 Gallagher r. Reilly, 10 N. Y. S. 536; Ludington v. Garlock, 9 N. Y. 
 S. 24. As to acts amounting to a surrender, see, Dennis r. Miller 
 (X. .1. 1002). 53 Atl. Rep. 394; Drew v. Billings Co. (Mich. 1902), 
 92 N. W. Rep. 774. 
 
 ' Scott r. Willis. 122 Ind. 1; Witte v. Quenn, 38 Mo. App. 681; 
 Shontz V. Reynolds, 70 Mo. App. 669. 
 
 s> Doe r. Palmer. 10 East 58; Tuttle v. Bean. 13 Mete. 275; Farson r. 
 Goodale, 8 Allen 202; Norris r. Morrill, 43 N. H. 218; Prindle v. Ander- 
 son. 19 Wend. 391; Kimball r. Rowland, 6 Gray 224. 
 
 32 Doe r. Humphries. 2 East 237; Goodright v. Cordwent. 6 T. R. 
 219; Kimball r. Rowland, 6 Gray 224; Prindle v. Anderson, 19 Wend. 
 391. 
 
 33 Supple v. Timothy, 124 Pa. St. 375. A tenant for a year who holds 
 
 223
 
 169 TENANCIES FROM YEAR TO YEAR. [PART I. 
 
 over is a tenant from year to year. Baltimore Dental Ass'n r. Fuller, 
 101 Va. 627, 44 S. E. Rep. 771. But see, Wood v. Page, 24 R. I. 594, 
 54 Atl. Rep. 372, where a tenant by the year who holds over is held 
 to be a tenant at will. In Illinois, where a tenant from year to year 
 holds over, it is optional with the landlord to regard him as a tenant 
 from year to year, or not. Chicago r. Peek, 98 111. App. 434, 0:5 N; 
 E. Rep. 711. See, also, Ridgeway r. Hannum (Ind. 1902), 64 N. E. 
 Rep. 44. Under a tenancy by the month, there is, in legal contem- 
 plation, a monthly letting, although the tenancy continues many 
 months. Donk Bros. Coal Co. v. Leavitt, 109 111. App. 385. A hold- 
 ing over, under a monthly tenancy, continues such tenancy in force, in 
 Xi>\v Jersey. Baker v. Kenney (1903), 54 Atl. Rep. 526. 
 224
 
 SECTION III. 
 
 TENANCY AT SUFFERANCE. 
 
 SECTION 170. Tenancy at sufferance, what is. 
 
 171. Incidents of tenancy at sufferance. 
 
 172. How the tenancy is determined. 
 
 173. The effect of forcible entry. 
 
 170. Tenancy at Sufferance, what is. When one who has 
 come lawfully into the possession of lands under an agree- 
 ment with the owner, retains such possession, after his right 
 to it is determined, he is said to be a tenant at sufferance. 
 His estate is an unlawful one; he has, in fact, no right to 
 possession, but yet is not a trespasser. 3 * And yet he has 
 so far a vested interest in the land that any crop which he 
 might plant and harvest during the continuance of the ten- 
 ancy is his, free from the claims of the reversioner, and liable 
 to execution for the debts of the former. 35 Such are all 
 persons who continue in possession, after the determination 
 of their particular estate, by and under which they orig- 
 inally acquired possession. Tenants for years after the 
 expiration of their terms, tenants pur autre vie after the 
 death of the cestui que vie, sublessees after the determination 
 of the original lease and the like, are all tenants at suffer- 
 ance. 36 But in the- case of a tenancy from year to year, the 
 
 8<2 Bla. Com. 150; 1 Washburn on Real Prop. 616; Co. Lit. 57 b; 
 Williams on Real Prop. 389; Doe v. Hull, 2 D. & R. 38; Russell v. Fa- 
 byan, 34 N. H. 218; Uridias v. Morrell, 25 Cal. 35. 
 
 ssWalcott v. Hamilton (Vt.), 17 Atl. Rep. 39. 
 
 se Co. Lit. 57 b; 2 Bla. Com. 150; Simkin v. Ashhurst, 1 Crompt. M. 
 & R. 261; Benedict v. Morse, 10 Mete. 223; Creech f. Crockett, 5 Cush. 
 133; Jackson v. Parkhurst, 5 Johns. 128; Hyatt v. Wood, 4 Johns. 150; 
 Livingston tJ. Tanner, 12 Barb. 481; Smith v. Littlefleld, 51 N. Y. 543; 
 
 15 225
 
 170 TENANCY AT SUFFERANCE. [PART I. 
 
 trnnncy at sufferance only begins at the expiration of the 
 current rental period and after giving the required legal 
 notice. 37 In order that a tenancy at sufferance may arise, 
 the estate, under which possession was originally gained, 
 must have been created by the agreement of the parties. If 
 one enters into the possession by the act or authority of the 
 law, as, for example, a guardian, and retains possession after 
 the law ceases to authorize it, he is a trespasser and not a 
 tenant at sufferance. 38 And a tenancy at sufferance would 
 only exist, where the holding over is not in pursuance of an 
 agreement between the parties. Such an agreement would 
 change the relation from a tenancy at sufferance to one at 
 will or from year to year. 39 And if the parties have not 
 expressly agreed upon any other terms, the presumption is 
 that the holding over is to be on the terms of the original 
 lease. 40 A notice by the landlord, before the termination of 
 the lease, that an advance in rent would be asked, if the 
 tenant held possession after his term is at an end, will have 
 the same effect as an express agreement in changing the 
 liability of the tenant. 41 And although an agreement in the 
 
 Ferine v. Teague, 66 Cal. 446. A tenant by the year, who holds over, 
 after his landlord's death, in Rhode Island, is a mere tenant by suffer- 
 ance. Wood v. Page, 24 R. I. 594, 54 Atl. Rep. 372. Under Wyoming 
 statute, one found in the possession of real estate, with no oth'er show- 
 ing of right, is held to be a tenant by sufferance. Frank v. Stratford- 
 Hancock (1904), 77 Pac. Rep. 134. A tenancy by sufferance, in Georgia, 
 is held to arise, by a holding over on the part of a tenant, who refused 
 to execute a new lease within the time given him to do so. Salis v. 
 Davis (1904), 120 Ga. 95, 47 S. E. Rep. 644. See, also, Cook v. Klenk. 
 142 Cal. 416, 76 Pac. Rep. 57; Chatard v. O'Donovan, 80 Ind. 20, 41 
 Amer. Rep. 786; Kerrains v. People, 60 N. Y. 224. 
 
 37 Thomas v. Black (Del.), 18 Atl. Rep. 771. 
 
 38 Co. Lit. 57 b; 1 Washburn on Real Prop. 618; Merrill v. Bullock, 
 105 Mass. 491. 
 
 39 1 Washburn on Real Prop. 618, 619. 
 
 40 Miller v. Ridgely, 19 111. App. 306; Vogely v. Robinson, 20 Mo. App. 
 199; McBrier V. Marshall, 126 Pa. St. 390; Dental Ass'n v. Fuller, 101 
 Va. 627, 44 S. E. Rep. 771; Baker v. Kenny (N. J. 1903), 544 Atl. R>p 
 526. 
 
 41 Thorpe v. Philbin, 22 State Rep. 27, 3 N. Y. S. 939. 
 
 226
 
 CH. VIII.] TENANCY AT SUFFERANCE. 171 
 
 original lease, to pay rent for the time that the tenant con- 
 tinues in possession after the expiration of his term, or after 
 the demand for payment of rent, will not take away from 
 such holding over the character of a tenancy at sufferance, 42 
 yet the actual payment and receipt of rent, in pursuance of 
 such an agreement or without any previous agreement, will 
 make the holding a tenancy at will, or one from year to 
 year, according to the attending circumstances. 43 
 
 171. Incidents of tenancy at sufferance. Unlike all other 
 tenancies, it does not rest upon privity of contract. It is 
 created by implication of law, for the purpose, perhaps 
 the sole purpose, of establishing between the owner and the 
 person holding over, the tenure, usually existing between 
 landlord and tenant. As a consequence of this tenure, a 
 tenant at sufferance cannot, in an action by the reversioner 
 for the recovery of the possession, deny the title of his les- 
 sor, or set up in defense a superior title which he has ac- 
 quired by purchase. 44 Nor can the tenant give to his hold- 
 ing the character of adverse possession, so as to bar the les- 
 sor's claim under the Statute of Limitations. 45 It has been 
 stated that the statute may run against the landlord in an 
 estate for years, where the tenant gives actual notice by word 
 or deed that he is claiming adverse possession, and that the 
 
 Condon v. Barr, 47 N. J. L. 113; Adler v. Mendelson, 74 Wis. 464. 
 
 Russell v. Fabyan, 34 N. H. 223; Edwards V. Hale, 9 Allen 462; 
 Emmons V. Scudder, 115 Mass. 367; Schuyler v. Smith, 51 N. Y. 309; 
 Finney v. St. Louis, 39 Mo. 177; Bircher v. Parker, 40 Mo. 148; Hoff- 
 man v. Clark, 63 Mich. 175. See O'Brien v. Troxell, 76 Iowa 760. 
 In Illinois, it is optional with the landlord to regard a tenant from 
 year to year holding over, as a tenant by the year or at will. Chicago 
 r. Peck, 98 111. App. 434, 63 N. E. Rep. 711. 
 
 < Jackson v. McLeod, 12 Johns. 182; Griffin v. Sheffield, 38 Miss. 
 930; 1 Washburn on Real Prop. 618, 619; Dixon v. Finnegan, 182 Mo. 
 Ill, 81 S. W. Rep. 449; Miller v. Warren (1904), 87 N. Y. S. 1011, 94 
 App. Div. 192. 
 
 1 Washburn on Real Prop. 620; Doe v. Hull, 2 D. & R. 38 Sec. 
 IMwards v. Hale, 9 Allen 464; Gwynn v. Johns. 2 Gill & J. 173. 
 
 227
 
 172 TENANCY AT SUFFERANCE. [PART I. 
 
 statute will run from the time that such notice is given. 
 Such, presumably, is the law also in respect to tenancies at 
 sufferance. The tenure existing between the lessor and his 
 tenant at sufferance, is identical, in character and scope, 
 with that between landlord and tenant for years. For the 
 details of the doctrine, reference may be had to the chapter 
 on estates for years. 40 The tenant at sufferance has, how- 
 ever, no estate which he may assign, and if he attempts an 
 assignment, his assignee upon entry into possession becomes 
 a trespasser or disseisor, and has neither the rights nor the 
 obligation of a tenant at sufferance, 47 unless by the accept- 
 ance of rent and other recognitions of a tenancy, the relation 
 of landlord and tenant is impliedly established between the 
 assignee and the lessor, when the assignee will become a 
 tenant at will or a tenant from year to year, according to 
 the attending circumstances. 48 
 
 172. How the tenancy is determined. The tenancy is de- 
 termined by the entry of the lessor upon the land, and 
 then the quondam tenant is a trespasser, and may be treated 
 as such. 49 And although the tenant at sufferance is not 
 
 4 See ante, Sec. 158. 
 
 4?Nepeau V. Doe, 2 M. & W. 911; Thunder v. Belcher, 3 East 451; 
 Reckhow v. Schanck, 43 N. Y. 448; Layman v. Throp, 11 Ired. 352; 1 
 Washb. on Real Prop. 261. 
 
 <8 De Pere Co. v. Reynen, 65 Wis. 271. See, Chicago V. Peck, 98 111. 
 App. 434, 63 N. E. Rep. 711; Ridgeway v. Hammon (Ind. 1902), 64 
 N. E. Rep. 44. 
 
 40 Until entry is made, the land-owner cannot treat the tenant at 
 sufferance as a trespasser. 2 Bla. Com. 150; Co. Lit. 57 b; Carl V. 
 Lowell, 19 Pick. 27; Butcher v. Butcher, 7 B. & C. 399; Newton v. 
 Harland, 1 Mann. & G. 644; Rising v. Stanard, 17 Mass. 282. The 
 successful issue of an action of ejectment is equivalent to an entry. No 
 notice to the tenant at sufferance is required to terminate his estate, 
 or to bring an ejectment, unless a statute expressly requires it. Hollis 
 V. Pool, 3 Mete. 350; Mason V. Denison, 11 Wend. 612; Smith v. Little- 
 field, 51 N. Y. 643; Young v. Smith, 28 Mo. 65; Bennett v. Robinson, 
 27 Mich. 32. 
 
 228
 
 CH. VIII.] TENANCY AT SUFFERANCE. 173 
 
 liable for rent (except by statute 50 ), yet he is liable to the 
 lessor in an action for the mesne profits. 01 But he is liable 
 for neither rent nor mesne profits, if he holds over only for 
 the time which is reasonably necessary to remove his goods. 52 
 
 173. The effect of forcible entry. A statute was passed 
 in the reign of Richard II, 53 forbidding entries upon land in 
 support of one's title "with strong hand or a multitude of 
 people, but only in a peaceable and easy manner," and pro- 
 viding for the punishment of such offenses by indictment 
 and arraignment in the criminal courts. 54 Similar statutes 
 have been passed in most, if not all, of the States of this 
 country. The question has been mooted from an early 
 period, whether it was the purpose of the statute to take 
 away the common-law right to recover one's lawful posses- 
 sion by force of arms, or simply to provide a punishment for 
 the breach of the public peace thereby occasioned. Although 
 there are decisions and some authorities, which maintain that 
 the statute has this double effect, and that such forcible 
 entry would lay the lawful owner open to civil actions for 
 trespass, and for assault and battery, 55 yet the weight of 
 
 so Cofran v. Shephard, 148 Mass. 582. 
 
 si Sargent v. Smith, 12 Gray, 426; Merrill v. Bullock, 105 Mass. 490; 
 Cunningham v. Holton, 55 Me. 33; Stockton's Appeal, 64 Pa. St. 63; 
 Hogsett v. Ellis, 17 Mich. 368; 1 Washburn on Real Prop. 610. (520; 
 Hammond v. Eckhardt, 9 N. Y. S. 508; Shanahan v. Shanahan, 55 N. Y_ 
 Super. Ct. 330; Johannes v. Kielgast, 27 111. App. 576; Lathrop v~ 
 Standard Oil Co. (Ga.), 9 S. E. Rep. 1041. 
 
 sz Adler v. Mendelson, 74 Wis. 464. The common-law rule that a 
 tenant by sufferance is not liable for rents and profits, has been abro- 
 gated by statute, in Kansas. Martin V. Allen (1903), 67 Kan. 758, 74 
 Pac. Rep. 249. In Missouri a tenant at sufferance can be evicted 
 without notice. Wamsganz v. Wollf, 86 Mo. App. 205. No notice is 
 necessary to end a tenancy at sufferance in Georgia. Willis v. Harrell, 
 118 Ga. 900, 45 S. E. Rep. 794. 
 
 5315 Rich. II, c. 2; Button's Case, 6 Mod. 91, 2 Ld. Raym. 100.T,. 
 9 Enc. PI. & Pr. 29. 
 
 ** En?, fiat. L. is beginning of civil remedy. 
 
 ssReeder v. Pardy, 41 111. 261; Doty v. Burdick, 83 111. 473; Knight r. 
 
 229
 
 173 TENANCY AT SUFFERANCE. [PART I. 
 
 authority both in the courts of England and of this country 
 is certainly in favor of confining the operation of the statute 
 to a criminal prosecution for the prohibited entry. The de- 
 cisions cited below maintain that the plea of libernum 
 tenementum is a good plea to every action of trespass quarc, 
 clausum fregit, and even if the tenant is forcibly expelled 
 and suffers personal injuries therefrom, no civil action for 
 any purpose will lie, unless the force used was greater than 
 was necessary to effect his expulsion. 66 
 
 Knight, 90 111. 208 ; Dustin V. Cowdry, 23 Vt. 631 ; Whittaker v. Perry, 
 38 Vt. 107 (but see contra, Beecher v. Parmelee, 9 Vt. 352; Mussey v. 
 Scott, 32 Vt. 82). See Moore v. Boyd, 24 Me. 247. 
 
 so Harvey v. Brydges, 13 M. & W. 437; Davis v. Burrell, 10 C. B. 821; 
 Hilbourne t'. Fogg, 99 Mass. 11; Churchill v. Hulbert, 110 Mass. 42; 15 
 Am. Rep. 578; Clark v. Kelliher, 107 Mass. 406; Stearns v. Sampson, 
 59 Me. 568; Sterling v. Warden, 51 N. H. 239; 12 Am. Rep. 80; The 
 People v. Field, 52 Barb, 198; s. c. v. Lans. 242; Estes v. Kedsey, 8 
 Wend. 560; Todd V. Jackson, 26 N. J. L. 525; Krevet V. Meyer, 24 Mo. 
 107; Fuhr v. Dean, 26 Mo. 116. The exercise of sufficient force after 
 a peaceable entry to eject a tenant, is lawful, and cannot sustain an 
 action for assault and battery. Stearns v. Sampson, 59 Me. 568, 8 Am. 
 Rep. 442. For discussion and jurisdiction of forcible entries, as to 
 mines and mining property, see White, Mines & Min. Rem., Sec. 538, 
 et seq. 
 
 230
 
 CHAPTER IX. 
 
 JOINT ESTATES. 
 
 SECTION I. Classes of joint estates. 
 
 II. Incidents common to all joint estates. 
 III. Partition. 
 
 SECTION I. 
 
 CLASSES OF JOINT ESTATES. 
 
 I. Joint-tenancy. 
 II. Tenancy in common. 
 
 III. Estates in coparcenary. 
 
 IV. Estates in entirety. 
 
 V. Estates in partnership. 
 
 SECTION 174. Joint and several estates distinguished. 
 
 175. Joint-tenancy, what is. 
 
 176. Incidents of joint-tenancy. 
 
 177. Doctrine of survivorship, how right of survivorship is 
 
 destroyed. 
 
 178. Tenancy in common, what is. 
 
 179. Joint estates, when tenancies in common. 
 
 180. Tenancy in coparcenary. 
 
 181. Estates in entirety. 
 
 182. Estates in entirety in a joint-tenancy, or tenancy in 
 
 common. 
 
 183. Tenancy in common between husband and wife. 
 
 184. Estates in partnership. 
 
 185. Several interests of partners. 
 
 174. Joint and several estates distinguished. After dis- 
 cussing the various estates which might be created in lands, 
 in respect to their duration, it is necessary to inquire into 
 their qualities, in respect to the number of owners. From 
 
 231
 
 176 JOINT-TENANCY. [PART I. 
 
 this standpoint, estates are divided into two classes, estates 
 in severally and joint estates. An estate in severally is, as 
 the name implies, one which is held and enjoyed by one to 
 the exclusion of all the world. 1 Joint estates are all other es- 
 tates, the title to which is vested in two or more persons. 
 These are again subdivided into joint tenancies, tenancies 
 in common, estates in coparcenary, tenancies by the entirety 
 and partnership estates. 
 
 175. Joint-tenancy, what is. A joint-tenancy is an estate 
 held by two or more persons jointly, so that during the 
 lives of all they are equally entitled to the enjoyment of 
 the land, or its equivalent in rents and profits; but, upon 
 the death of one, his share vests in the survivor or survivors, 
 until there be but one survivor, when the estate becomes one 
 in severally in him, and descends to his heirs upon his 
 death. 2 There may be a joint-tenancy in any one of the es- 
 tates before explained, in fee, for life, or for years and the 
 like. 3 But for a reason which will be made clear by a sub- 
 sequent paragraph, 4 a joint tenancy can only be created by 
 purchase. It cannot be acquired by descent. 5 
 
 176. Incidents of a joint-tenancy. It is said that for the 
 creation of a joint-tenancy, the four unities of estate must 
 be present, viz. : unity of interest, title, time, and posses- 
 sion. 6 All the tenants must have the same interest in the 
 land in respect to the duration of the estate. One cannot be 
 
 1 1 Washburn on Real Prop, 642; 2 Bla. Com. 179. 
 
 2 1 Washburn on Real Prop. 642; 1 Prest. Est. 130; 2 Bla. Com. 179, 
 183. 
 
 1 Washburn on Real Prop. 642, 643 ; 2 Bla. Com. 179 ; Glover v. 
 Stillson (Conn.), 15 Alt. Rep. 752. 
 
 < See Sec. 180. 
 
 B 1 Washburn On Real Prop. 643; 2 Bla. Com. 180. 
 
 1 Washburn on Real Prop. 643 ; 2 Bla. Com. 180. A deed from 
 cotenants to one of their number and a third party, vests an estate in 
 joint tenancy, so that the survivor takes the estate. Colson v. Baker 
 (1904), 87 N. Y. 8. 238. 
 232
 
 CH. IX.] JOINT TENANCY. . 176 
 
 tenant for life, while another is tenant in fee. By unity 
 of title is meant, that all must acquire their interests by the 
 same title. One cannot hold by one deed, and another by a 
 second deed. The estate must vest at the same time, other- 
 wise there will be no unity of time. Two persons cannot be 
 joint-tenants, where the estate is granted in remainder to 
 the heirs of two living persons. The death of one, during 
 the life of the other, would cause the shares of his heirs to 
 vest before the others. Finally, the estate must take effect 
 in possession at the same time. One cannot have an estate 
 in possession, while the other has an estate in remainder. 
 Joint-tenants, therefore, "have one and the same interest, 
 accruing by one and the same conveyance, commencing at 
 one and the same time, and held by one and the same pos- 
 session. ' ' 7 And whenever these four unities were present 
 in a joint estate, the estate was construed at common law to 
 be a joint-tenancy, unless the grantor by express limitation 
 gave the estate a different character. 8 But the American 
 law has been in opposition to joint-tenancy, and has shown 
 more favor to tenancies in common. The doctrine of sur- 
 vivorship has been considered repugnant to the American 
 sense of justice to the heirs. A number of the States have 
 by statute abolished joint-tenancy altogether, except in the 
 case of trustees and other persons, holding a joint-estate 
 
 7 Bla. Com. 180, 181, 182. 
 
 1 Washburn on Real Prop. 643; Williams on Real Prop. 132; Rig- 
 den v. Vallier, 3 Atk. 734. But sometimes the intention to create a 
 tenancy in common is established by implication, as, for example, where 
 the land was purchased with the intention of expending large sums in 
 the improvement of the property, and there is no relationship between 
 the co-tenants to support the contrary presumption, that the estate was 
 intended to be a joint-tenancy. See Lake v. Craddock, 3 P. Wms. 158; 
 Cuyler v. Bradt, 2 Caines 326; Caines v. Grant's Lessee, 5 Binn. 196; 
 Duncan v. Forrer, 6 Binn. 196. Joint estates were never regarded with 
 favor in equity and where the instrument creating the estate could be 
 construed as creating other than a joint estate, equity so construed it. 
 4 Kent's Com. 361; Rigden V. Vallier, 2 Ves. 258; Randall v. Phillipps, 
 3 Mason 378; Hawes v. Hawes, 1 Wils. 165, by Lord Hardwicke. 
 
 233
 
 176 . JOINT-TENANCY. [PART I. 
 
 in a fiduciary capacity ; while it may be stated as a general 
 rule in the rest of the States, that a joint-estate will be pre- 
 sumed in every case, except that of trustees, etc., to be a 
 tenancy in common, unless expressly declared to be a joint- 
 tenancy, even though the four unities are present. 10 Joint- 
 mortgagees hold by joint-tenancy, until the property is sold 
 under foreclosure, when they become tenants in common, 11 
 in the land, if strict foreclosure is had, and in the proceeds of 
 sale, if it is an equitable foreclosure. 
 
 Statutes of this character exist in Virginia, North Carolina, South 
 Carolina, Pennsylvania, Georgia, Florida, Kentucky, Tennessee, Alabama, 
 Mississippi, Texas, Ohio, and Connecticut. 1 Washburn on Real Prop. 
 644, note. See also Phelps v. Jepson, 1 Root 48; Ball v. Deas, 1 
 Strobh. Eq. 24; Nichols V. Denny, 37 Miss. 59; Jenk's Lessee v. Back- 
 house, 1 Binn. 91; Baird's Appeal, 3 Watts & S. 459; Miles v. Fisher, 
 10 Ohio 1; Varn v. Yarn (S. C.), 10 S. E. Rep. 829. 
 
 10 This statutory rule prevails in Maine, Massachusetts, New Hamp- 
 shire, Vermont, Rhode Island, New York, Delaware, Maryland, Mich- 
 igan, Minnesota, Illinois, Wisconsin, Missouri, Indiana, Arkansas, Iowa, 
 California. 1 Washburn on Real Prop. 644, note. See also Webster v. 
 Vandeventer, 6 Gray 428; Jones v. Crane, 10 Gray 308; Stimpson v. 
 Butterman, 5 Gush. 153 ; Hoffman V. Stigers, 28 Iowa 302 ; Orr v. Clark 
 (Vt.), 19 Atl. Rep. 929. In Missouri, by statute, any conveyance to 
 two or more persons, not husband and wife, creates an estate in 
 common. And where a husband purchases the interests of heirs and 
 his wife's dower and his own interests are set off to them they are 
 tenants in common, under this statute. Harrison v. McReynolds, 183 
 Mo. 533, 82 S. W. Rep. 120. 
 
 "Kinsley r. Abbott, 19 Me. 430; Pearce v. Savage, 45 Me. 90; 
 Donnels v. Edwards, 2 Pick. 617; Deloney V. Hutchison, 2 Rand. 183. 
 If the debt is joint, it goes to the survivor and he alone must sue. 
 Webster v. Vandeventer, 6 Gray 428. But if the debts are several, 
 belonging to different persons, who together constitute the joint-mort- 
 gagees, the doctrine of survivorship does not apply. In the event of the 
 death of one of them, his personal representatives or heirs, according 
 to the local l"w, must be made joint parties with the survivors. Brown 
 V. Bates, 55 Me. 522; Burnett V. Pratt, 22 Pick. 551. And although 
 joint-disseisors do not strictly hold in joint-tenancy, it is a familiar 
 rule of the law of adverse possession that, if one abandons the property, 
 the other takes the entire estate. Putney v. Dresser, 2 Mete. 583 ; Allen 
 c. Holton, 20 Pick. 458. 
 
 234
 
 CH. IX.] JOINT TENANCY. 177 
 
 177. Doctrine of survivorship, how right of survivorship 
 is destroyed. The chief incident of joint-tenancies, and that 
 which distinguishes them from tenancies in common, is the 
 right of survivorship. Although the estate is limited to two 
 or more and their heirs, the entire estate falls to the sur- 
 vivor or survivors upon the death of one, to the exclusion 
 of his heirs. 12 Nor does the wife or husband of the deceased 
 joint-tenant have respectively dower or curtesy in the es- 
 tate. 13 For the reason that corporations cannot be said to 
 die, therefore there can be no survivorship, and if two cor- 
 porations hold land jointly, they are tenants in common, and 
 not joint-tenants. 14 Joint-tenants are said to hold the entire 
 estate per my et per tout, individually and jointly. Upon 
 the death of one, the others do not acquire a new interest 
 in the land by descent from the deceased. Their interest is 
 only indirectly increased by the extinguishment of the de- 
 ceased joint-tenant's interest. For this reason, in a convey- 
 ance by one joint-tenant to another, a release is not only 
 sufficient to vest in the latter the entire estate, but it is the 
 only proper common-law mode of assignment. 16 But the 
 ordinary deeds of grant will operate, as well as a technical 
 release, in conveying or extinguishing a joint-tenant's in- 
 
 121 Washburn on Real Prop. 643; 2 Bla. Com. 183; Williams on 
 Real Prop. 134. But the administrator or executor of the deceased co- 
 tenant has a right to the growing crop planted by the decedent under 
 the law of emblements. Pritchard v. Walker, 22 111. App. 286; s. c. 
 121 111. 221. 
 
 is 1 Washburn on Real Prop. 649; Co. Lit. 37 b. 
 
 i4l Washburn on Real Prop. 643; Dewitt v. San Francisco, 2 Cal. 
 289. 
 
 "I Washburn on Real Prop. 642; 2 Bla. Com. 182. Blackstone 
 translates per my (mie) et per tout, by the half or moiety, and by the 
 whole. In Williams on Real Prop. 136, Mitchell's note, a note to Mur- 
 ray v. Hall, 7 Mann. Gr. & Sc. (62 Eng. C. L. R.) 455, is cited to the 
 effect that the proper rendering of mie (my) is nothing or not in the 
 leant. 
 
 '"Williams on Real Prop. 134, 135; Co. Lit. 169 a ; 1 Washburn on 
 Real Prop. 648; 1 Prest. Est. 136; Rector v. Waugh, 17 Mo. 13. 
 
 235
 
 178 JOINT-TENANCY. [PART I. 
 
 terest. 17 The survivor's estate will be subject to the same 
 incumbrances as were imposed by him upon his share of the 
 joint-tenancy before the death of his co-tenant. 18 But a 
 joint-tenancy, and therewith the right of survivorship, may 
 be destroyed by a conveyance by one joint-tenant to a third 
 person. Although he has not the power to devise his in- 
 terest, and although there is a joint possession and interest in 
 the estate, he may alien his share to a stranger. Such a 
 stranger would at once become r, tenant in common, and the 
 alienation would thus destroy the right of survivorship. 1 * 
 But if there be more than two joint-tenants, the conveyance 
 by one of his share will not affect the right of survivorship 
 of the other tenants between themselves. They would still 
 be joint-tenants to each other. 20 
 
 178. Tenancy in common, what is. Tenancy in common 
 is a joint estate, in which there is unity of possession, but 
 
 i? 1 Washburn on Real Prop. 648; Eustace v. Scawen, Cro. Jac. 696; 
 Chester v. Willan, 2 Saund. 96 a. 
 
 is 1 Washburn on Real Prop. 646; Co. Lit. 185 b; Lord Abergraveny's 
 Case, 6 Rep. 78. Where one joint tenant denies his ratification of a 
 sale of the joint estate, the fact that he has endorsed and received 
 the proceeds of a check for his portion of the sale of the land, is suf- 
 ficient evidence of his approval of the sale, although he protested when 
 he signed the check. Whittaker v. Hicks, 123 Iowa 733, 99 N. W. Rep. 
 575. The purchase of a tax title by one of several joint tenants, 
 enures to the benefit of all the joint tenants. Bossier v. Hervvig (1904), 
 112 La. 539, 36 So. Rep. 557; Alexander v. Light, 112 La. 925. 
 
 i 1 Washburn on Real Prop. 647, 648; Co. Lit. 273 b. One joint- 
 tenant may mortgage his interest in the estate, and to that extent will 
 the jus accrescendi be destroyed or rather suspended. York v. Stone, 1 
 Salk. 158; 1 Eq. Cas. Abr. 293; Simpson v. Ammons, 1 Binn. 175. 
 But it cannot be taken away by a devise of the deceased co-tenant's 
 share. Co. Lit. 185 b; Duncan v. Forrer, 6 Binn. 193. In Hawes V. 
 Hawea (1 Wils. 165), Lord Hardwicke observes that with the abolition 
 of feudal tenures, the reason for the favorable policy of the common 
 law, toward joint estates ceased and because of the injustice of the 
 right of survivorship, such estates should no longer be regarded with 
 favor by the courts. See also, 4 Kent's Com. 361. 
 
 202 Bla. Com. 186; Co. Lit. Sec. 294. 
 236
 
 CH. IX.] JOINT-TENANCY. 178 
 
 separate and distinct titles. Joint estates are usually sa 
 limited as to be estates in fee. But there may be tenancies 
 in common and other joint estates in estates for life or for 
 years, 21 and where an estate is given to two during their 
 "natural lives" and there is a limitation over "after the de- 
 cease of both " the limitation in remainder does not take 
 effect until the survivor's death, and after the death of ona 
 of them, the survivor takes the whole of the estate. 22 The 
 tenants have separate and independent freeholds or lease- 
 holds in their respective shares, which they manage and dis- 
 pose of as freely as if the estate was one in severalty. There 
 is no restriction upon their power of alienation. 23 And the 
 tenant may dispose of it by will, while the heirs of each co- 
 tenant will inherit the estate. In like manner, the husband 
 or wife of a tenant in common will have, respectively, curtesy 
 and dower in this species of joint estate. 24 The interest of 
 
 21 See ante, Sec. 175. 
 
 22 Glover v. Stillson (Conn.), 15 Atl. Rep. 752. 
 
 231 Washburn on Real Prop. 652, 653; Brown v. Wellington, 106 
 Mass. 318, 8 Am. Rep. 330; Butler v. Roys, 25 Mich. 53, 12 Am. Rep. 
 218; Fry v. Scott (Ky.), 11 S. W. Rep. 426; Bush v. Gamble, 127 Pa. 
 St. 43. A co-tenant's interest may be mortgaged. Green v. Arnold, 11 
 R. I. 364, 23 Am. Rep. 466. And it can be levied upon in satisfaction of 
 the co-tenant's debts. Boylston Insurance Co. v. Davis, 68 N. C. 17, 12 
 Am. Rep. 624; Newton v. Howe and Drury, 29 Wis. 531, Am. Rep. 
 616: Peabody v. Minot, 24 Pick. 329; Duncan v. Sylvester, 24 Me. 482; 
 Whilton r. Whilton, 38 N. H. 127; Griswold V. Johnson, 5 Conn. 363; 
 Prim v. Walker, 38 Mo. 97; McKey v. Welch, 22 Texas 390. In the 
 absence of evidence to the contrary, the interests of several tenants in. 
 common are presumed to be equal. Jackson v. Moore (1904), 87 
 N. Y. S. 1101, 94 App. Div. 504. One co-tenant, without his co- 
 tenants' consent, cannot convey an easement in the common property. 
 Charleston & W. C. Co. v. Fleming, 118 Ga. 699, 45 S. E. Rep. 664. 
 And see, as to lease, Snyder v. Harding (Wash. 1904), 75 Pae. Rep. 812. 
 An unauthorized conveyance by a tenant in common, is voidable, at the 
 election of the co-tenants. Kenoye v. Brown, 82 Miss. 607, 35 So. Rep. 
 163. A lease of the entire estate by one co-tenant, is void, when made 
 without authority. Jackson v. O'Roark (Neb. 1904), 98 N. W. Rep. 
 1068. But see, Valentine v. Healey, 178 N. Y. 391, 70 N. E. Rep. 913. 
 
 24 1 Washburn on Real Prop. 654. 
 
 237
 
 178 JOINT-TENANCY. 
 
 one tenant in common is so independent of that of his co- 
 tenant, that in a joint conveyance of the estate it would be 
 treated as a grant by each of his own share in the estate. 25 
 And, unlike joint-tenancies, in order to convey the share of 
 one co-tenant to another, the same formal deed is required 
 as in a conveyance of it to a stranger. A simple technical 
 release, without words of inheritance, would not be sufficient. 
 Tenants in common are not seised of the entire estate. They 
 do not hold it per my et per tout. 20 
 
 251 Washburn on Real Prop. 656; 2 Prest. Abst. 77. And in the 
 same manner, if a covenant of warranty in the conveyance of a tenancy 
 in common is broken, each co-tenant can sue individually for the 
 breach. Lamb v. Danforth, 59 Me. 322, 8 Am. Rep. 426. But they 
 must join in an action for the recovery of the possession. Co. Lit. 200 
 a; Rehoboth v. Hunt, 1 Pick. 224; Allen v. Gibson, 4 Rand, 468; John- 
 son v. Harris, Hayw. 113; Young v. Adams, 14 B. Mon. 127; Hines v. 
 Frantham, 27 Ala. 359; Hughes v. Holliday, 3 Greene (Iowa), 30; Mul- 
 ler v. Boggs, 25 Cal. 187. Contra, Hillhouse v. Mix, 1 Root 246. One 
 tenant in common can maintain ejectment against a third person. Shel- 
 ton u. Wilson (1903), 131 N. C. 106, 42 S. E. Rep. 937. One co-ten- 
 ant of real estate can recover possession of the whole tract, as 
 against all except his co-tenants. Field v. Tanner ( Colo. 1904 ) , 75 Pac. 
 Rep. 916. But see, as to co-tenancy in personality, Jackson v. Moore, 
 87 N. Y. S. 1104, 94 App. Div. 504. A co-tenant can recover possession 
 of the common property, without joining his co-tenants. Griswold v. 
 Minneapolis &c., Co. (N. D. 1903), 97 N. W. Rep. 538; Binswanger V. 
 Hinnenger, 1 Alaska 509. But see, Armstrong v. Canady (Miss. 1903), 
 35 So. Rep. 138. And in the same manner they must sue jointly for 
 injuries to the possession, such as trespass, nuisance, etc. Phillips V. 
 Sherman, 61 Me. 548; Merrill v. Berkshire, 11 Pick. 269; Austin r. Hall, 
 13 Johns. 286; Dupuy v. Strong, 37 N. Y. 372; Doe V. Botts, 4 Bibb. 
 420; Parke v. Kilham, 8 Cal. 77. 
 
 28 1 Co. Lit. 193 a, n. 80; 1 Washburn on Real Prop. 652. It will of 
 course be understood that, when speaking of the necessity of words 
 of limitation, reference is made only to the common-law rule. Where 
 the necessity of words of limitation has been removed by statute, in 
 the grant of one co-tenant to the other, an ordinary deed of release 
 will operate to pass the estate in fee, without words of limitation. 
 See post, Sec. 548. A lease to two or more, under New York statute, 
 creates an estate in co-tenancy. McPhillipps v. Fitzgerald, 78 N. Y. S. 
 631, 76 App. Div. 15. 
 
 238
 
 CH. IX.] JOINT-TENANCY. 180 
 
 179. Joint estates, when tenancies in common. The com- 
 mon-law rule was that all estates, acquired by purchase, 
 under circumstances which prevented the presence and ex- 
 istence of the so-called four unities, were tenancies in com- 
 mon. 27 But, as has been explained above, the rule has now 
 been changed and modified in this country, so that the gen- 
 eral rule here is that all joint estates are held to be ten- 
 ancies in common, where they are not expressly made joint- 
 tenancies, whether acquired by purchase or by descent, ex- 
 cept in the few localities where tenancy in coparcenary still 
 exists. 28 In a tenancy in common the unity of possession is 
 all that is required. The estates, the titles, and the times of 
 enjoyment might all be different. One tenant may thus have 
 a life-estate and another a fee, acquired by different titles. 
 There may be a tenancy in common in a future estate, and 
 their titles may vest and be executed in possession at different 
 periods, provided at some time during the existence of both 
 estates there is a unity of possession.- 
 
 180. Tenancy in coparcenary. This tenancy is the joint 
 estate which, according to common law, vested by descent 
 in the heirs of an estate. It partakes of the characteristics 
 of both joint-tenancies and tenancies in common. Like joint- 
 tenancies, in a conveyance by one co-tenant to another of his 
 share, a simple release was sufficient without words of limi- 
 
 27 2 Bla. Com. 191. 
 
 28 4 Kent's Com. 307 ; 1 Washburn on Real Prop. 653 ; Miller v. Mil- 
 ler, 16 Mass. 59; Sigourney v. Eaton, 14 Pick. 414; Evans V. Brittain, 3 
 Serg. & R. 135; Partridge v. Colegate, 3 Har. & McH. 339; Johnson v. 
 Harris, 5 Hayw. 113; Young v. DeBruhl, 11 Rich. L. 638; Briscoe v. 
 McGee, 2 J. J. Marsh, 370; Church v. Church, 15 R. I. 138; Bishop v. 
 McClelland's Exrs. (N. J.), 16 Atl. Rep. 1; Bowen v. Swander, 121 
 Ind. 164; Bush v. Gamble, 127 Pa. St. 43; Coudert v. Earl, 45 N. J. 
 Eq. As to what declaration is necessary to create a joint-tenancy, see 
 Hersky v. Clark, 35 Ark. 17, 37 Am. Rep. 1. 
 
 20 1 Washburn on Real Prop. 652; 2 Bla. Com. 191; 1 Piest. Est. 139. 
 That there may be a tenancy in common in a remainder, see Coleman v. 
 Lane, 26 Ga. 515. 
 
 239
 
 181 JOINT-TENANCY. [PART I. 
 
 tat ion, since they were all seised in fee of the entire estate 
 by descent. 30 And they were like tenancies in common, in 
 that the doctrine of survivorship did not obtain in respect 
 to the respective shares of the tenants. The heirs of a de- 
 ceased tenant in coparcenary inherited his share. 31 And a 
 coparcenary may make a devise of his estate. 32 But in this 
 country the doctrine of coparcenary has never prevailed ex- 
 cept in Maryland ; in all other States joint estates by descent 
 are treated as tenancies in common. The subject, therefore, 
 is of very little importance to American students. 33 
 
 181. Estates in entirety. This is an estate arising in the 
 conveyance to a man and wife jointly. They are not seised 
 of moieties, but of entireties; hence .the name, estate in en- 
 tirety. 3 * In those States where statutes have been passed, 
 giving to married women, in respect to their property, the 
 rights of femes sole, it has become a question of great doubt, 
 whether tenancy in entirety has been abolished inferentially 
 by the statute. 35 These tenancies resemble joint-tenancies in 
 
 so Co. Lit. 273 b, 1 Prest. Est. 138; Gilpin v. Hollingsworth, 3 Md. 
 190. See, for case discussing the character of the several co-tenants' 
 interests, Deavitt v. Ring, 73 Vt. 298 ; 50 Atl. Rep. 1066. Sec, also, Pope 
 u. Brassfield (Ky.), 61 S. W. Rep. 5; Whitehead v. Slauss, 197 Pa. St. 
 511, 47 Atl. Rep. 978. The possession of one of the several heirs is 
 presumed to be for all. Stull v. Stull, 197 Pa. St. 243, 47 Atl. Rep. 240. 
 
 3i2 Bla. Com. 188; 1 Washburn on Real Prop. 650. 
 
 32 1 Washburn on Real Prop. 651; 2 Prest. Abst. 72. 
 
 331 Washburn on Real Prop. 651; 4 Kent's Com. 367; Johnson v. 
 Harris, 5 Hayw. 113; Hoffar V. Dement, 5 Gill 132; Gilpin V. Hollings- 
 worth, 3 Md. 190; Bisttop v. McClelland's Ex'rs (N. J.), 16 Atl. Rep. 1; 
 Palms v. Palms (Mich.), 36 N. W. Rep. 419; Rowland v. Murphy, 66 
 Tex. 534; McPheeters v. Wright (Ind.), 24 N. E. Rep. 734. 
 
 3* 1 Prest. Est. 131; Shaw V. Hearsey, 5 Mass. 521; Doe V. Rowland, 
 8 Cow. 277 ; Den v. Branson, 5 Ired. 426 ; Babbit V. Scroggin, 1 Duv. 272 ; 
 Paul v. Campbell, 7 Yerg. 319; Lux v. Hoff, 47 111. 425; Farmer's Bank 
 . Corder, 32 W. Va. 233. 
 
 ss In the following cases, it has been held that the statute has had no 
 
 effect upon the estates in entirety and that a conveyance to man and 
 
 wife makes them tenants in entirety now, as well as before the statute. 
 
 Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266; Hulett v. Inlow, 57 Ind. 
 
 240
 
 CH. IX.] JOINT-TENANCY. 181 
 
 that they have the quality of survivorship; the heirs of the 
 survivor would take to the exclusion of the heirs of the first 
 deceased. 36 But, unlike joint-tenancies, the right of survivor- 
 ship cannot be destroyed by the action of either party. There 
 can, therefore, be no partition of the estate. 37 During cover- 
 ture the husband has the entire control of the estate, may con- 
 vey it away, and it is liable to be sold under execution for his 
 debts. If the husband survives the wife, his conveyance of it 
 to a stranger will be as absolute, as if the estate had been one 
 in severalty. 38 But if the wife survives the husband, she ac- 
 quires, by the right of survivorship, the entire interest in the 
 land, and is entitled to her proper action for the recovery of 
 the possession. 39 The Statute of Limitations cannot run 
 
 412, 26 Am. Rep. 64; Hemingway V. Scales, 42 Miss. 1, 2 Am. Rep. 586; 
 McCurdy v. Canning, 64 Pa. St. 39; Diver v. Diver, 56 Pa. St. 106; 
 Bennett v. Child, 19 Wis. 365; Fisher V. Provin, 25 Midi. 347; Garner 
 f. Jones, 52 Mo. 68; Harrison v. McReynolds, 18:3 :.'<-. 533, 82 S. W. 
 Rep. 120; Robinson v. Eagle, 29 Ark. 202; Goelett f. Go i, 31 Barb. 314; 
 Shinn r. Shinn, 42 Kan. 1; Meeker v. Wright, 75 N. Y. 26; Gardinier V. 
 Furey, 50 Hun 82; O'Connor v. McMahon, 54 Hun 66. But a contrary 
 conclusion is reached by the courts in the cases cited post. Cooper v. 
 Cooper, 76 111. 57; Hoffman v. Steigers, 28 Iowa 302; Clark v. Clark, 56 
 N. H. 105. Estates in entirety are abolished by statute in Kansas. 
 Stewart V. Thomas (1902), 68 Pac. Rep. 70. Under Massachusetts stat- 
 ute, a conveyance to two or more, if husband and wife, creates a joint 
 estate, or an estate by entirety. But if not, an estate in common. 
 McLaughlin v. Rice, 185 Mass. 212, 70 N. E. Rep. 52. See also, for 
 similar statute, in Missouri, Harrison V. McReynolds, 183 Mo. 533, 
 82 S. W. Rep. 120. And for similar act, in New York, see, McPhillipps 
 r. Fitzgerald, 177 N. Y. 543, 69 N. E. Rep. 1126. The right of a wife, 
 as a tenant by entirety, cannot be effected by a statute, passed subse- 
 quent to the vesting of the estate, making all such estates tenancies in 
 common. Pease f. Inh. Whitman, 182 Mass. 363, 65 N. E. Rep. 795. 
 
 30 1 Washburn on Real Prop. 672, 673; 1 Prest. Est. 132. 
 
 37 1 Washburn on Real Prop. 673; Shinn f. Shinn, 42 Kan. 1. 
 
 sal Prest. Est. 135; Barber v. Harris, 15 Wend. 615; Needham v. 
 15 rail son, 5 Ired. 426; Ames V. Norman, 4 Snecd. 683; Tane v. Campbell, 
 7 Y.-rjr. 319; Bennett v. Child, 19 Wis. 364. 
 
 3 Pierce v. Chase, 108 Mass. 258; French v. Mehan, 56 Pa. St. 286; 
 McCurdy v. Canning, 64 Pa. St. 39. 
 
 16 241
 
 183 JOINT-TENANCY. [PART I. 
 
 against her right of survivorship during the disability of 
 coverture. 40 
 
 182. Estate in entirety in a joint-tenancy, or tenancy in 
 common. As a consequence of the doctrine explained in the 
 foregoing paragraph, if husband and wife, as such, are 
 made joint-tenants or tenants in common with others, they will 
 be considered as one co-tenant, and will take but one share be- 
 tween them, equal to the shares of the others. Thus if A. and 
 B., husband and wife, are made joint-tenants with C., A. and 
 B. will take a one-half interest, while C. will have the other 
 half. And the death of the husband or wife would have no 
 effect on C. 's share. On the other hand, if C. died, A. and B. 
 would take the whole estate in entirety. 41 
 
 183. Tenancy in common between husband and wife. 
 Although the estate in entirety has met with general recogni- 
 tion in this country, yet in a number of States the estate does 
 not exist, and a joint estate held by husband and wife is 
 either treated as a tenancy in common, as in Ohio and Vir- 
 ginia, or as a joint-tenancy, as in Connecticut. 42 And fur- 
 thermore, if at any time a joint-tenancy or tenancy in common 
 is desired to be created between man and wife, a joint estate 
 will be treated as such, if that intention is clearly expressed 
 in the deed or will. 43 An express limitation of the remainder 
 
 o 1 Washburn on Real Prop. 673; Co. Lit. 326 a. 
 
 *i 1 Washburn on Real Prop. 674; Williams on Real Prop. 225; 1 
 Prest. Est. 132; Barber V. Harris, 15 Wend. 615; Johnson v. Hart, 6 
 Watts & S. 319; Gordon v. Whieldon, 11 Beav. 170. But see Hampton 
 c. Wheeler, 99 N. C. 222, where it is held that as to the other co-tenants, 
 the husband and wife are simply individual co-tenants, each taking his 
 and her proportionate share in the general estate, the only difference 
 from the other interests being that the interests of the husband and wife 
 upon the death of one of them became united in the survivor. 
 
 See 1 Washburn on Real Prop. 674, 675; Whittlesey t?. Fuller, 11 
 Conn. 337; Wilson v. Fleming, 13 Ohio 68. 
 
 1 Washburn on Real Prop. 674 ; McDermott v. French, 15 N. J. Eq. 
 81; Cloos v. Cloos, 55 Hun 450. In Kentucky and Iowa, a conveyance 
 to husband and wife gives them a tenancy in common, unless the estate 
 242
 
 CH. IX.] JOINT-TENANCY. 184 
 
 of the estate, after the death of both husband and wife, to 
 the heirs of both, a provision being made for a division of the 
 property between these two classes of heirs, will cut down the 
 joint estate between husband and wife to a life estate, and 
 thus prevent the right of survivorship from affecting the 
 rights of the heirs to the remainder. 44 
 
 184. Estates in partnership. When a joint estate is 
 vested in the members of a partnership, purchased with part- 
 nership funds and for partnership purposes, it is called an 
 estate in partnership. The estate is treated in equity as 
 personal property, and made liable to the satisfaction of the 
 partnership 's debts in preference to the claims of private cred- 
 itors or of the widows and heirs of one of the partners. Real 
 estate held by a partnership is subject to the partnership 
 debts, and until they are satisfied no other claim can be made 
 upon the share of any one of the partners. 45 And if one 
 partner has paid more than his share of the debts, he also has a 
 lien upon the real estate to protect his right of contribution 
 for such over-payment. 40 Real estate, purchased by a firm, 
 
 is expressly declared to be a tenancy in entirety. Rogers V. Grider, 
 1 Dana 242; HolTman v. Stigers, 28 Iowa 302. See, also, Stewart V. 
 Thomas (Kan. 1902), 68 Pac. Rep. 70; McLaughlin v. Rice, 185 Mass. 
 212, 70 N. E. Rep. 52; McPhillipps v. Fitzgerald, 177 N. Y. 543, 69 N. E. 
 Rep. 1126. 
 
 4* Hadlock v. Gray, 104 Ind. 596. 
 
 *5 Cox v. McBurney, 2 Sandf. 561 ; Delmonico v. Guillaume, 2 Sandf. 
 Ch. 366; Deming v. Colt, 3 Sandf. 284; Lane V. Tyler, 49 Me. 252; 
 Galbraith V. Gedge, 16 B. Mon. 631; Howard v. Priest, 5 Mete. 582; 
 Lang V. Waring, 25 Ala. 625; Marvin V. Trumbull, Wright 386; Coder 
 V. Ruling, 27 Pa. St. 84; Hunter v. Martin, 2 Rich. L. 541; 1 Pars, on 
 Con. 149. The interest of a partner in a partnership which was to 
 divide " the proceeds and profits on sales of land," to be converted into 
 money and " divided in proportion to their several interests," is held 
 to be personalty and -passes, under his will as such. Barney v. Pike, 
 87 N. Y. S. 1038, 94 App. Div. 199; Darrow r. Calkins, 154 N. Y. 503, 
 49 X. E. Rep. 61, 48 L. R. A. 299, 61 Am. St. Rep. 637. 
 
 4 Buffum V. Buffum, 49 Me. 108 ; Burnside V. Merrick, 4 Mete. 537 ; 
 Howard v. Priest, 5 Mete. 585; Smith v. Jackson, 2 Edw. Ch. 28; Loubat 
 i . Xourse, 5 Fla. 350. 
 
 243
 
 ! 185 JOINT-TENANCY. [PART I. 
 
 will have in equity all the characteristics of an estate in co- 
 partnership, even though the legal title be taken in the name 
 of one partner. He will hold the legal title in trust for the 
 partnership. Of course, if the partner holding the legal title 
 disposes of it to a purchaser for value without notice of the 
 trust, the purchaser will take to the exclusion of the partner- 
 ship claims. 47 
 
 185. Several interests of partners. When, however, the 
 partnership debts have all been paid, the partners are tenants 
 in common of the partnership lands. Their widows have 
 dower, and their heirs are entitled to it upon the decease of the 
 partners. It is also subject to partition. 48 In this country, 
 at least, if the real estate had to be sold to liquidate the 
 partnership debts, any surplus that might be found undis- 
 posed of would be treated as real property, and go to the 
 widow and heirs of a deceased partner. 49 
 
 47 Smith v. Allen, 5 Allen 456 ; Moreau v. Safferons, 3 Sneed 595 ; 1 
 Pars, on Con. 153. 
 
 Sane v. Tyler, 49 Me. 252; Howard V. Priest, 5 Mete. 582; Whaling 
 Co. r. Borden, 10 Cush. 458; Tillinghast v. Champlin, 4 R. I. 173; Olcott 
 r. Wing, 4 McLean, 15; Deloney v. Hutcheson, 2 Rand. 183; Dilworth V. 
 Mayfield, 36 Miss. 40; Buchan v. Sumner, 2 Barb. Ch. 163; Buckley V. 
 Buckley, 11 Barb. 43; Piper v. Smith, 1 Head 93; Patterson V. Blake, 
 12 Ind. 436. Where there are debts unsatisfied, equity regards the real 
 estate as personalty, so far as to enable the surviving partner to dispose 
 of it for the satisfaction of the partnership debts, and a court of 
 equity will compel the widow and heirs of the deceased partner to 
 execute the deeds of conveyance. Delmonico v. Guillaume, 2 Sandf. Ch. 
 366; Boyce r. Coster, 4 Strobh. Eq. 25; Winslow v. Chiffelle, Har. Eq. 
 25; Boyers v. Elliott, 7 Humph. 204; Arnold v. Wainwright, 6 Minn. 
 358. 
 
 40ffut r. Scott, 47 Ala. 105; Foster's Appeal, 74 Pa. St. 398; 22 Am. 
 Law Reg. 300, notes 307-310. See also, generally, Shearer v. Shearer, 98 
 Mass. 107; Jones' Appeal, 70 Pa. St. 169; Bopp r. Fox, 63 111. 540; 1 
 Pars, on Con. 150. In England, the interest of the partner in partner- 
 ship real estate is looked upon as personalty, and therefore, the sur- 
 plus after satisfaction of the partnership debts, goes to the personal 
 representative, instead of to the "heirs. Darby v. Darby, 3 Drewry 495; 
 1 Pars, on Con. 149. And see Rice v. Barnard, 20 Vt. 479; Lang v. 
 244
 
 CH. IX.] JOINT-TENANCY. 185 
 
 Waring, 17 Ala. 145; Barney v. Pike, 87 N. Y. S. 1038, 94 App. Div. 
 199; Darrow v. Calkins, 154 N. Y. 503, 49 N. E. Rep. 61, 48 L. R. A. 
 299, 61 Am. St. Rep. 637. A deed of partnership property by one 
 partner, made in the firm name, vests an equitable title in the pur- 
 chaser. Conner v. Smith (Tex. 1904), 80 S. W. Rep. 105. Without 
 consent of the other partners one partner cannot mortgage firm property 
 for his individual debt, as such property is a trust fund for firm credi- 
 tors. Lance v. Butler, 135 N. C. 419, 47 S. E. Rep. 488; Cunday v. 
 Hall, 208 Pa. St. 335, 57 Atl. Rep. 761; Johnson v. Clark, 18 Kan. 
 157; Nat. Bank v. Bank, 130 Mich. 332, 89 N. W. Rep. 941; Parker 
 t-. Bowles, 57 N. H. 491. For partnerships in land, relating to mines 
 and mining property, see White, Mines & Min. Rem., Sees. 328-352. 
 
 245
 
 SECTION II. 
 
 INCIDENTS COMMON TO ALL JOINT ESTATES. 
 
 SECTION 186. Disseisin by one co-tenant. 
 
 187. Adverse title acquired by one co-tenant. 
 
 188. Maintenance of actions against trespassers. 
 
 189. Alienation of joint estates. 
 
 190. Waste by co-tenants. 
 
 191. Liability of one co-tenant for rents and profits. 
 
 186. Disseisin by one co-tenant. As the possession of co- 
 tenants is common to all, a tenure exists between them in 
 respect thereto, so that if one co-tenant is in possession, his 
 possession is generally held to be for the benefit of all; the 
 sole possession by one does not constitute in itself a disseisin 
 of the other co-tenants, notwithstanding it continues for the 
 statutory period of limitation. 50 And where the tenancy in 
 common rests upon a title" by adverse possession the tenancy is 
 established by proof of adverse possession by one of the al- 
 leged co-tenants under color of title to the co-tenants. 51 But 
 
 soMcClung V. Ross, 5 Wheat. 116; Clymer v. Dawkins, 3 How. 674; 
 Colburn v. Mason, 25 Me. 434; Thomas v. Hatch, 3 Sumn. 170; German 
 r. Machin, 6 Paige Ch. 288; Clowes V. Hawley, 12 Johns. 484; Lloyd 
 r. Gordon, 2 Har. & McH. 254; Martin V. Quattelbaum, 3. McCord 205; 
 Prage r. Chinn, 4 Dana 50; Story V. Saunders, 8 Humph. 663; Long 
 v. McDow, 87 Mo. 197; Terrell 0. Martin, 64 Tex. 121; Hamilton v. 
 Redden (Kan.), 24 Pac. Rep. 76; Millis v. Roof, 121 Ind. 360; In re 
 Grider's Estate, 81 Cal. 571, 22 Pac. Rep. 908; Grand Tower, etc., Co. 
 v. Gill, 111 111. 541; Rhett V. Jenkins, 25 S. C. 453; Stevenson v. 
 Anderson, 87 Ala. 228; Newman V. Bk. of California, 80 Cal. 368. 
 
 5i Lenoir v. Valley River Min. Co., 106 N. C. 473. The possession 
 of a co-tenant is presumed to be for his co-tenants as well as himself 
 and the statute will not run until his adverse claim is brought home 
 to his co-tenants. Stevens v. Martin, 168 Mo. 407, 68 S. W. Rep. 347; 
 Bontley r. Callahan, 70 Miss. 302, 30 So. Rep. 709; Bennett v. Peirce, 
 246
 
 CH. IX.] INCIDENTS OF ALL JOINT ESTATES. 186 
 
 the husband of a tenant in common is not estopped from set- 
 ting up adverse title to the land on a simple exclusive posses- 
 sion. 52 To create a title by adverse possession in one co-ten- 
 ant, he must not only have exclusive possession, but he must 
 also deny the right of the others in the estate, and maintain 
 such denial long enough for those rights to be barred by the 
 Statute of Limitations; and this denial must expressly, or 
 by necessary implication from its notoriety, be made known 
 to the others. 53 Among the acts which produce such an ouster 
 of the co-tenants, as to cause the statute to run against them, 
 is the refusal to share in the profits, a conveyance of the 
 entire estate to a third party who enters into possession, an 
 entry into possession of part of the estate under an agreement 
 that this shall be a practical partition, and many other acts 
 which are inconsistent with their joint-ownership. 54 If the 
 
 50 W. Va. 604, 40 S. E. Rep. 395; Stull V. Stull, 197 Pa. St. 243, 47 
 All. Rop. 240. To constitute an adverse holding by a co-tenant, there 
 must generally be some notorious act of exclusive ownership of such 
 a nature as to impart notice of the adverse claim. Golden V. Yver, 
 180 Mo. 196, 79 S. W. Rep. 143; Merryman V. Cumberland Paper Co. 
 (Md. 1903), 56 Atl. Rep. 364; Soper V. Lawrence Bros., 98 Me. 268, 56 
 Atl. Rep. 908; Guthrie v. Guthrie (Ky. 1904), 78 S. W. Rep. 474; 
 Blnnkenhorn v. Lennox (Iowa 1904), 98 N. W. Rep. 556. 
 
 52 Cooper r. Fox (Miss.), 7 So. Rep. 342. 
 
 ss Doe v. Bird, 11 East 49; Harpending V. Dutch Church, 16 Pet. 
 455; Presbrey V. Presbrey, 13 Allen 284; Jackson v. Tibbitts, 9 Cow. 
 241; Forward v. Deetz, 32 Pa. St. 69; Meredith v. Andres, 7 Ired. L. 5; 
 Gray t;. Givens, Riley Ch. 41; Corbin v. Cannon, 31 Miss. 570; Owen 
 f. Morton, 24 Cal. 377; St. Louis, etc., Ry. Co. v. Prather, 75 Tex. 
 53; Coogler V. Rogers (Fla.), 7 So. Rep. 391; Stoddard V. Weston, 
 6 N. Y. S. 34; English v. Ouster, 119 Ind. 93; Mayes v. Manning, 73 
 Tex. 43 ; Peck v. Lockridge, 97 Mo. 549 ; Richards v. Richards, 75 
 Mich. 408; Golden v. Yver, 180 Mo. 196, 79 S. W. Rep. 143; Merrym 
 v. Paper Co. (Md. 1903), 56 Atl. Rep. 364; Soper v. Lawrence, 98 Me. 
 268, 56 Atl. Rep. 908; Guthrie v. Guthrie (Ky. 1904), 78 S. W. Rep. 
 474; Blankenhorn . Lennox (Iowa 1904), 98 N. W. Rep. 556. 
 
 5* Thomas v. Pickering, 13 Me. 337; Bigelow v. Jones, 10 Pick. 160; 
 Jackson v. Whitbeck, 6 Cow. 632; Bogardus v. Trinity Church, 4 Paige 
 178; Rider v. March, 46 Pa. St. 380; Cullen v. Motzer, 13 Serg. & R. 
 356; Frederick v. Gray, 10 Serg. & R. 182; Jones v. Weathersbee, 4 
 Strobh. 50; Gill v. Fauntleroy, 8 B. Mon. 177; Wisinger v. Murphy, 
 
 247
 
 187 INCIDENTS OF ATJj JOINT ESTATES. | PART I. 
 
 co-tenant in possession refuses to recognize the rights of the 
 others, by a refusal to share in the rents and profits, or resist- 
 ance of their right to enter into possession, they may have 
 either trespass or ejectment at their election for such ouster. 5:> 
 Neither action can be maintained against a co-tenant, as long 
 as they both remain in possession, and the wrong complained 
 of does not constitute a clear case of eviction or destruction 
 of some part of the common property. 50 But there may be an 
 ouster from one part of the land, while the tenant so evicted 
 remains in possession of another part, and trespass would lie 
 for such partial eviction. 57 
 
 187. Adverse title acquired by one co-tenant. So intimate 
 is the relation of co-tenants that one cannot acquire by pur- 
 chase an adverse and superior title, and set it up in opposition 
 to his co-tenants, unless they refuse to contribute their share 
 of the expense of procuring it. The title is held to be ac- 
 
 2 Head 674; Miller v. Miller, 60 Pa. St. 10; Hinkley v. Green, 52 111. 
 230; Ward V. Farmer, 92 N. C. 93; Highstone V. Burdette, 61 Mich. 
 54, 27 N. W. Rep. 852; Streeter v. Shultz, 45 Hun 406. Where a co- 
 tenant occupies the common property, solely and exclusively, as his 
 own, pays taxes and keeps the rents and profits, this is such an adverse 
 claimer as will ripen into a title by limitation. Cochrane v. Cochrane 
 (W. Va. 1904), 46 S. E. Rep. 924; Rogers v. Miller (W. Va. 1904), 
 47 S. E. Rep. 354. And so are acts of independent ownership; the 
 execution of a deed to the land and describing oneself as owner, suf- 
 ficient claims to start the statute to run. Hendricks v. Musgrove, 
 183 Mo. 300, 81 S. W. Rep. 1265. 
 
 ss Keay v. Goodwin, 16 Mass. 1; Bennett v. Clemence, 6 Allen 18; 
 Erwin v. Olmstead, 7 Cow. 229; King v. Philips, 1 Lans. 421; Austin 
 9. Rutland, etc., R. R., 45 Vt. 215; Jones v. Chiles, 8 Dana 163; Jones 
 V. DeLassus, 84 Mo. 541; Frakes v. Elliott, 102 Ind. 47; St. Louis, etc., 
 Ry. Co. v. Prather, 75 Tex. 53; Southern Cotton Oil Co. v. Henshaw 
 (Ala), 7 So. Rep. 760. 
 
 5Jewett . Whitney, 43 Me. 242; Silloway v. Brown, 12 Allen 37; 
 Erwin v. Olmstead, 7 Cow. 229; Bennet v. Bullock, 35 Pa. St. 364; 
 Filbert V. Hoff, 42 Pa. St. 97. 
 
 57 Murray v. Hall, 7 C. B. 441; Bennett V. Clemence, 6 Allen 10; 
 Carpentier v. Webster, 27 Cal. 524. 
 
 248
 
 CH. IX.] INCIDENTS OF ALL JOINT ESTATES. 188 
 
 quired by one for the benefit of all. 58 But one co-tenant may 
 buy the others' interests at public sale, and hold the interest so 
 acquired adversely. 50 
 
 188. Maintenance of actions against trespassers. If a 
 third person should disturb the possession of the co-tenant, 
 whether the disturbance should amount to an ouster or only 
 a trespass, to such an extent are the interests of the co-tenants, 
 considered to be one interest, that a single tenant may suc- 
 cessfully prosecute the suit against such trespasser for the- 
 
 ss Braintree v. Battles, 6 Vt. 395 ; Van Home v. Fonda, 5 Ch. Johns. 
 407; Wells v. Chapman, 4 Sandf. Ch. 312; Hussey v. Blood, 29 Pa. St. 
 319; Flagg v. Maun, 2 Sumn. 490; Venable V. Beauchamp, 3 Dana 321; 
 Rothwell v. Dewees, 2 Black 613; Fallen v. Chidester, 46 Iowa 588; 
 26 Am. Rep. 164; Barker v. Jones, 62 N. H. 497; Mentor v. Durham, 1$ 
 Oreg. 470; Holterhoff v. Mead, 36 Minn. 42; Todd v. Lunt, 148 Mass. 
 322; Battin V. Woods, 27 W. Va. 58; Calkins v. Stcinbach. 56 Cal. 
 117; St. Louis, etc., Ry. Co. v. Prather, 75 Tex. 53; Gilchrist v. Bos- 
 wick, 33 W. Va. 168; Richards v. Richards, 75 Me. 408; Moon v. Jen- 
 nings, 119 Ind. 130. It is a fraud for one tenant to let the taxe* 
 remain unpaid, and then buy in the tax-title, for the purpose of acquir- 
 ing title to the whole premises. Brown v. Hogle, 30 111. 119. See 
 Preston v. Wright, 81 Me. 306. But one co-tenant, who pays the taxes, 
 can claim contribution against the others, and can enforce such claim 
 by asserting a lien against the interests in the joint-estate of those wha 
 refuse to contribute. Hurley v. Hurley, 148 Mass. 444. A co-tenant, 
 paying taxes on the common property is held to have a lien on the- 
 interest of the co-owner therefor, in, McClintock v. Fontaine. 119 Fed. 
 Rep. 448. But in the absence of express agreement, no contribution or 
 recovery is allowed for services in caring for the common property^ 
 Anderson v. Northrop (Fla. 1902), 33 So. Rep. 419. Where two co- 
 tenants agree to buy the interest of a third, the obligations of the- 
 purchasers are so far several, that one can disaffirm the sale, without 
 effecting the status of the other. Mylin V. King (Ala. 1904). 35 So. 
 Rep. 998. A re-location of a mining claim, on Government land, by 
 a co-tenant, enures to the beenfit of all. Yarwood r. Johnson. 29 Wash. 
 643, 70 Pac. Rep. 123. See, W T hite, Mines & Min. Rem., Sec. 24 an* 
 cases cited. 
 
 o Peck v. Lockridge, 97 Mo. 549. A purchase at a foreclosure sale- 
 is such an adverse claim as to set the statute of limitations in motion. 
 Francis v. Million (Ky. 1904), 80 8. W. Rep. 486. But see Bossier v. 
 H-rwig (1904), 112 La. 539, 36 So. Rep. 557. 
 
 249
 
 190 INCIDENTS OP ALL JOINT ESTATES. [PART I. 
 
 benefit of all, without joining the others as parties to the 
 suit. 60 
 
 189. Alienation of joint estates. The co-tenants of all 
 kinds of joint estates, except tenants in entirety, may alien 
 their shares in the estate, without the participation or con- 
 sent of the other tenants. Their deeds convey whatever in- 
 terest they possess. 61 The same rule would apply to a lease by 
 one co-tenant. It would be valid as to every one except the 
 co-tenants who had not joined in the lease, or authorized its 
 execution by the tenant who did sign it. 62 But a lease exe- 
 cuted by one co-tenant, with the consent of all, and as their 
 agent, is as binding upon all as if it had been executed by 
 all in person. 63 If the co-tenancy is an estate-tail, the convey- 
 ance by one of the co-tenants will, under the Massachusetts 
 statute, bar the entail as effectually as a joint conveyance. 64 
 
 190. Waste by co-tenants. If one co-tenant misuse or 
 abuse the property, while in possession, he is liable to the 
 others for waste. But as a general rule he is only liable, 
 where the waste complained of results in an actual injury to 
 the property. He must do something more than exercise the 
 
 eoCorley V. Parton, 75 Tex. 98; Bounds v. Little, 75 Tex. 316; Voss 
 V. King, 33 W. Va. 236; Shelton v. Wilson (1903), 131 N. C. 106, 42 
 S. E. Rep. 937; Field v. Tanner (Colo. 1904), 75 Pac. Rep. 916; Gris- 
 wold v. Minneapolis &c., Co. (N. D. 1903), 97 N. W. Rep. 538. But 
 see Armstrong v. Carmody (Miss. 1903), 97 So. Rep. 138. 
 
 "Peabody v. Minot, 24 Pick. 329; Buttler v. Roys, 25 Mich. 53, 12 
 Am. Rep. 218; Brown V. Wellington, 106 Mass. 318, 8 Am. Rep. 300; 
 York f. Stone, 1 Salk. 158; Simpson V. Ammons, 1 Binn. 175; Green 
 t?. Arnold, 11 R. I. 364, 23 Am. Rep. 330; Barnes v. Lynch (Mass.), 
 24 N. E. Rep. 783. 
 
 2Grundy V. Martin, 143 Mass. 279; Tipping V. Robbins, 64 Wis. 
 546; McKinley v. Peters, 111 Pa. St. 283; Richey v. Brown, 58 Mich. 
 435; Omaha & Grant, etc., Co. v. Tabor, 13 Colo. 41. 
 
 s Harms v. McCormick (111.), 22 N. E. Rep. 511. For unauthorized 
 conveyances by co-tenant, see note to Sec. 178. See also, Jackson v. 
 CTRoark (Neb. 1904), 98 N. W. Rep. 1068. 
 
 < Coombs v. Anderson, 138 Mass. 376. 
 250
 
 CH. IX.] INCIDENTS OP ALL JOINT ESTATES. 190 
 
 rights of ownership. He may therefore be held liable for 
 negligence in keeping up the necessary repairs, or doing any 
 affirmative act which injures the inheritance, such as flowing 
 land, pulling down houses, and the like. 65 A tenant is guilty 
 of technical waste in putting a house on the joint-estate with- 
 out the consent of his co-tenant, and the latter can remove it 
 from the premises without sustaining liability for doing so, if 
 he exercise reasonable care. 60 If a co-tenant threatens wilful 
 and malicious destruction of the property, he may be re- 
 strained by injunction. 67 But the tenant is under no obliga- 
 tion to make improvements, and if one co-tenant enters upon 
 the land and makes improvements, he cannot hold the others 
 liable for their share, nor can he claim the exclusive right to 
 these improvements. But if the repairs are necessary to pre- 
 vent the property from going to decay, he may either compel 
 the others to join hirfl in making the repairs, or, if he has 
 notified them that such repairs are necessary, bring an action 
 against them for their share of the expenses. 68 It has been 
 
 esHines v. Robinson, 57 Me. 328; Hutchinson v. Chase, 39 Me. 508; 
 Hastings r. Hastings, 110 Mass. 285; McLellan v. Jennes, 43 Vt. 183; 
 5 Am. Rep. 270 ; Hayden v. Merrill, 44 Vt. 336 ; 8 Am. Rep. 372 ; Elwell 
 f. Burnside, 44 Barb. 454 ; Anderson v. Meredith, 3 Dev. & B. 199 ; Farr 
 V. Smith, 9 Wend. 338; Hyde v. Stone, 9 Cow. 230; Harmon v. Gart- 
 man, Harper 430; Shields v. Stark, 14 Ga. 429; Fightmaster V. Beasley, 
 7 J. J. Marsh. 410. 
 
 Bijam v. Bichford, 140 Mass. 31. 
 
 < 1 Washburn on Real Prop. 601 ; Twort v. Twort, 16 Ves. 128. See 
 Martin v. Knowlys, 8 T. R. 146; Wilbraham v. Snow, 2 Saund. 47. 
 The conflicting rights of co-tenants as to a tract of land will not 
 be adjudicated, where they are none of them in possession, and the 
 party in possession is not a party to the suit. Wetherington v. Wil- 
 liams (N. C. 1904), 46 S. E. Rep. 728. 
 
 6"Doane v. Badger, 12 Mass. 65; Coffin v. Heath, 6 Mete. 79; Calvert 
 r. Aldrich, 99 Mass. 78; Mumford v. Brown, 6 Cow. 475; Scott v. Guern- 
 sey, 48 N. Y. 106; Taylor v. Baldwin, 10 Barb. 582; Crest v. Jacks, 3 
 Watts 239; Dech's Appeal, 57 Pa. St. 472; Ottumwa Lodge V. Lewis, 
 34 Iowa 67 ; Pickering v. Pickering, 63 N. H. 468 ; Ford v. Knapp, 102 
 N. Y. 135, 55 Am. Rep. 782; Davis i\ Sawyer (N. H.), 20 Atl. Rep. 
 100; Rico Reduction, etc., Co. v. Musgrave (Colo.), 23 Pac. Rep. 458; 
 Newmann v. Dreifurst, 9 Colo. 228; Johnson v. Blair, 126 Pa. St. 426; 
 
 251
 
 191 INCIDENTS OP ALL JOINT ESTATES. [PART I. 
 
 held in case of partition and sale he may in any case be re- 
 imbursed out of the proceeds of sale the fair value of such 
 improvements. 00 Whenever the claim for contribution to- 
 wards the expense of making the improvements is recognized, 
 it is held to constitute an equitable lien on the undivided in- 
 terest of the indebted co-tenant. 70 
 
 191. Liability of one co-tenant for rents and profits. If 
 one tenant cuts timber upon the land, and sells it, the co- 
 tenants are entitled to their share of the money so received. 
 And so also would he be liable to account for rents, received 
 by him from the tenant of the land, over and above his share. 71 
 
 Alden v. Carleton, 81 Me. 358; Redfield v. Gleason, 61 Vt. 220; Alleman 
 v. Hawley, 117 Ind. 532. 
 
 69 Moore v. Thorp (R. I.), 19 Atl. Rep. 321. 
 
 TO Curtis v. Poland, 66 Tex. 511. A co-tenant who pays more than 
 his share of an incumbrance is entitled to contribution therefor. Grove 
 f. Grove (Va. 1902), 42 S. E. Rep. 312; Ballou v. Ballou, 94 Va. 350, 
 26 S. E. Rep. 840, 64 Am. St. Rep. 733; Downey V. Strause, 43 S. E. 
 Rep. 348. 
 
 7i Miller v. Miller, 7 Pick. 133 ; Peck v. Carpenter, 7 Gray 283 ; 
 Dickinson v. Williams, 11 Cush. 258; Gowen v. Shaw, 40 Me. 56; Web- 
 ster V. Calef, 47 N. H. 289; Hayden v. Merrill, 44 Vt. 336, 8 Am. Rep. 
 372; Izard v. Bodine, 11 N. J. Eq. 403; Israel v, Israel, 30 Md. 126; 
 Holmes v. Best, 58 Vt. 547; Minter v. Durham, 130 Reg. 473; Alney 
 v. Daniels, 15 R. I. 312; Bush v. Gamble, 127 Pa. St. 43; Fulmer's 
 Appeal, 128 Pa. St. 24; Huff n. McDonald, 22 Ga. 131; Pico v. Columbet, 
 12 Cal. 414. But replevin would not lie between two co-tenants. Boh- 
 len v. Arthurs, 115 U. S. 482. One co-tenant may cut the grass, 
 growing on the common estate, sell it, and apply the profits to his 
 own use. Brown v. Wellington, 106 Mass. 318, 8 Am Rep. 130. See 
 Kean v. Connely, 25 Minn. 222, 33 Am. Rep. 458. And contra, Le Bar- 
 ren v. Babcock, 46 Hun 598. Although ignorant of the title of his 
 co-tenants, a tenant in common, who is in possession, must account 
 for rents and profits. Eighmer v. Thayer (Mich. 1904), 98 N. W. Rep. 
 734; Stephens v. Hewitt (Tex. 1904), 77 S. W. Rep. 229. A tenant 
 in common is only liable for the excess of rents, over and above what 
 he was legally entitled to, as his share of the common property. Ben- 
 nett r. Bennett (Miss. 1904), 36 So. Rep. 452; Willes v. Loomis, 87 
 N. Y. S. 1086, 94 App. Div. 67. In an accounting, between co-tenants, 
 interest should be allowed on rents and profits from the time when 
 they should be paid over, with a reasonable allowance of time for 
 252
 
 CH. IX.] INCIDENTS OF ALL JOINT ESTATES. . 191 
 
 But in order that a co-tenant may be held personally liable 
 for rent through his own use and occupation of the land, a 
 special agreement to that effect must be shown. An occu- 
 pancy by one co-tenant without the interference of the others 
 is not sufficient. He is merely exercising his right of owner- 
 ship. 72 But the one co-tenant cannot hold exclusive posses- 
 sion of the estate against the others, and if he attempts it, 
 ejectment will lie against the tenant in possession, the judg- 
 ment requiring the abandonment of exclusive possession. 73 
 And he is then liable in damages for the past exclusion of his 
 co-tenant. 74 And. when a co-tenant is liable for use and oc- 
 cupation, the claim is personal, and is not assigned with the 
 grant of the claimant's estate. 75 
 
 settlement. Sieger v. Sieger, 209 Pa. 65, 58 Atl. Rep. 140. See also, 
 Hollahan v. Sowers, 11 111. App. 263; Heppe v. Sezepanski, 209 111. 88, 
 70 X. E. Rep. 737. 
 
 72 Sargent V. Parsons, 12 Mass. 149; Calhoun v. Curtis, 4 Mete. 413; 
 Scots v. Guernsey, 60 Barb. 163 ; Kline f. Jacobs, 68 Pa. St. 57 ; Keisel 
 r. Earnest, 21 Pa. St. 90; Israel v. Israel, 30 Md. 120; McMahon v. 
 Burchell, 2 Phil. Eq. 134; Lyles v. Lyles, 1 Hill Ch. 85; Crow v. Mark, 
 52 111. 332; Everts v. Beach, 31 Mich. 136, 18 Am. Rep. 169; Pico V. 
 Columbet, 12 Cal. 414. But see contra Holt v. Robertson, McMull. 475; 
 Thompson r. Bostick, 76. 75; Hayden v. Merrill, 44 Vt. 430, 8 Am. Rep. 
 372; Belknap v. Belknap, 77 Iowa 71; Sailer v. Sailer, 41 N. J. Eq. 
 398; Boley V. Barutis, 24 111. App. 515; s. c. 120 111. 192; Almy V. 
 Daniels, 15 R. I. 312. And likewise, if one co-tenant plants a crop 
 upon the common estate, it belongs to him exclusively, and his co-tenant 
 would be liable as a trespasser, if he appropriated it to himself. 
 Calhoun f. Curtis, 4 Mete. 413; Bird v. Bird, 15 Fla. 424, 21 Am. Rep. 
 296. See Kean r. Connely, 25 Minn. 222, 33 Am. Rep. 458; Berry v. 
 Whidden, 62 N. H. 473; Le Barren v. Babcock, 46 Hun 588. 
 
 73 Jones v. De Lassus, 84 Mo. 54; Gilman v. Oilman, 111 N. Y. 265. 
 
 74 Stephenson 17. Cotter, 5 N. Y. S. 749 ; Bowen v. Swander ( Ind. ) , 
 22 N. E. Rep. 725, 121 Ind. 164. 
 
 75 1 Washburn on Real Prop. 663; Hannan v. Osborn, 44 Paige Ch. 
 33. The liability of a co-tenant to the others for his use and occupation 
 of the land is in some of the States regulated by statute. Woolley r. 
 Schrader, 116 111. 29. Tenants in common may establish the relation 
 of landlord and tenant as between themselves. Smith v. Smith, 98 Me. 
 , r >97. 37 Atl. Rep. 999. A co-tenant who fails to account for rents and 
 profits cannot claim contribution for improvements made by him. 
 
 1>53
 
 191 INCIDENTS OF ALL JOINT ESTATES. [PART I. 
 
 Eighmer v. Thayer (Mich. 1004), 98 N. W. Rep. 734; Croesdale v. 
 Von Borgoburg, 206 Pa. 15, 55 Atl. Rep. 770. Generally, in co-tenancies 
 in mines, the owner of the larger interest is entitled to work the mine, 
 accounting to the co-owners for their share of the profit. Sweeney 
 r. Hanley, 126 Fed. Rep. 97; Binswanger V. Henninger, 1 Alaska 509; 
 \Yhite, Mines & Min. Rem., Sec. 24. For action for accounting of 
 rents and profits from mine held by co-tenants, see, Gregg v. Roaring 
 Spring Co., 97 Mo. App. 44, 70 S. W. Rep. 920. For accounting be- 
 tween co-tenants of mines, generally, see, White, Mines & Min. Rem., 
 Sees. 503, 512. 
 254
 
 SECTION III. 
 
 PARTITION. 
 
 SECTION. 192. Definition of partition. 
 
 193. Voluntary partition. 
 
 194. Involuntary or compulsory partition. 
 
 195. Who can maintain action for partition. 
 
 196. Partial partition. 
 
 197. Manner of allotment. 
 
 198. Relief incidental to partition. 
 
 199. Effect of partition. 
 
 192. Definition of partition. Partition is the act of di- 
 viding up the joint estate into estates in severalty among 
 the co-tenants, in the proportion of their undivided shares in 
 the joint estate. This can be done with any joint estate in 
 possession, except estates in entirety. 76 
 
 193. Voluntary partition. As co-tenants of joint estates 
 generally have the unrestricted power of aliening their shares 
 in the common estate, it is possible for them to make partition 
 of the estate by mutual conveyances to each other of their 
 share in different parts of the estate ; that is, by dividing up 
 
 7 Bennett v. Child, 19 Wis. 364; 1 Washburn on Real Prop. 673. 
 Where there is an express condition against partition, partition cannot 
 be had, for an attempt at it would result in a forfeiture of the estate. 
 Hunt v. Wright, 47 N. H. 399. See Fisher v. Demerson, 3 Mete. 546. 
 But the condition must be express, and clearly manifest an intention to 
 prevent partition. Spaulding v. Woodward, 53 N. H. 573, 16 Am. Rep. 
 392. But apart from these exceptions, the general rule is, that parti- 
 tion may be had in all joint-estates, joint-tenancies, as well as tenan- 
 cies in common. Coleman v. Coleman, 19 Pa. St. 100; Holmes V. 
 Holmes, 2 Jones Eq. 334; Witherspoon v. Dunlap, Harper 390; Higgin- 
 bottom v. Short, 25 Miss. 160. 
 
 255
 
 $ 193 PARTITION. [PART i. 
 
 the estate into several parcels, and making conveyance of one 
 parcel to each, all joining in the deed or deeds, a partition 
 an be made. But in order to be effectual, the partition must 
 be done by mutual deeds. If all do not join in the execution 
 of the mutual deed, it is a nullity and those who signed are 
 not thereby prevented from subsequently bringing the action 
 for partition. 77 But if it is a mutual deed, it cannot subse- 
 quently be revoked. 78 Parol partition would be void under 
 the Statute of Frauds. 70 Tenants in coparcenary may make 
 an effectual partition by parol, if it is followed by actual pos- 
 sion in severalty, at least in those States where tenancy in co- 
 parcenary is recognized. 80 And so, also, apparently will a 
 parol partition be valid between joint devisees, especially 
 where the devisor directs the division. 81 But although a parol 
 partition will not be effectual and binding upon the parties, 
 yet if it is followed by actual possession, such partition will 
 give to the parties the rights and incidents of exclusive pos- 
 session, as long as the exclusive possession is permitted to con- 
 tinue. And this exclusive possession, if continued for a suffi- 
 cient length of time, will ripen into an indefeasible title un- 
 der the Statute of Limitations. 82 So. also, if one of the co-ten- 
 
 " Paterson t?. Martin, 33 W. Va. 494. 
 
 7 Walton r. Ambler (Neb.), 45 N. W. Rep. 931. 
 
 7 Gardiner Man. Co. V. Heald, 5 Me. 384; Dow v. Jewell, 18 N. H. 
 354; Gratts V. Gratts, 4 Ralle 411; Coles v. Wooding, 2 Patt. jr. & H. 
 189; Slice r. Derrick, 2 Rich. 627; Piatt v. Hubbell, 5 Ohio 243; 
 Manley r. Pettee, 38 111. 128; Wildey v. Barney's Lessee, 31 Miss. 644. 
 But see contra, Aycock f. Kimbrough, 71 Tex. 330; Tate v. Foshee, 117 
 Ind. 322; Smith v. Cole, 39 Hun 248. 
 
 so 1 Washburn en Real Prop. 676. 
 
 siKnevals v. Prince, 10 N. Y. S. 676. 
 
 ssKeay r. Goodwin, 16 Mess. 1; Jackson V. Harder, 4 Johns. 202; 
 Corbin v. Jackson, 14 \Yend. 619; Gregg v. Blackmore, 10 Watts 192; 
 Lloyd V. Gordon, 2 Har. & McH. 254; Slice v. Derrick, 2 Rich. 627; 
 Drane r. Gregory, 3 B. Mon. 619; Wright v. Jones, 105 Ind. 17; Brazee 
 T. Schofield, 2 Wash. 200; Campbell v. Laclede Gaslight Co., 84 Mo. 
 352; McKnight v. Bell (Pa.), 19 Atl. Rep. 1036; Rountree v. Lane 
 (S. C.), 10 S. E. Rep. 941; Patterson v Martin, 33 W. Va. 404; Ham- 
 ilton r. Phillips (Ga.), 9 S. E. Rep. 606. In Manley v. Pettee, 38 111. 
 256
 
 CH. IX.] PARTITION. 194 
 
 ants, relying upon the parol partition, enters into possession, 
 and makes extensive improvements on the part allotted to 
 him, the court, in a subsequent action for partition, in the ex- 
 ercise of a wise discretion, may, and probably would, simply 
 confirm the former parol partition, instead of making any 
 different one. 83 
 
 194. Involuntary or compulsory partition. At common 
 law, no suit for partition of a joint estate could have been 
 sustained against the will of any one of the co-tenants, except 
 in the case of an estate in coparcenary, and it was not until 
 the reign of Henry VIII that any legal action was provided 
 for compulsory partition. Statutes were then passed creating 
 the common-law writ of partition. 84 Similar statutes have 
 been passed in the different States. 85 But apart from the 
 common-law statutory remedies, the court of chancery has, 
 since the reign of Elizabeth, maintained jurisdiction for par- 
 tition, and this is now the only remedy in England, unless re- 
 cent statutes have been passed; it exists also in most, if not 
 all, of the States. 86 The court of chancery would after ex- 
 128, a parol partition followed by occupation, has been held to be 
 effectual against creditors and purchasers. See Alldays v. Whittaker, 
 66 Tex. 669; Aycock V. Kimbrough, 71 Tex. 330. A parol partition of 
 land, in Missouri, by co-tenants, where each takes possession of his 
 share and occupies it or uses it, is binding on the parties. Edwards V. 
 Latimer (1904), 82 S. W. Rep. 109. See also, Bonner v. Bonner 
 (Tex. 1904), 78 S. W. Rep. 535; Mylin v. King (Ala. 1904), 35 So. 
 Rep. 998. 
 
 as Wood v. Fleet, 36 N. Y. 501. 
 
 84 1 Washburn on Real Prop. 651, 676; Williams on Real Prop. 103. 
 ss The statutes vary in detail and cannot be given here. For an 
 excellent- compendium of these statutes, see Mr. Washburn's note, 1 
 Washburn on Real Prop. 690, note; 4 Kent's Com. 564. See also, gen- 
 erally, in reference to the common-law remedy, Cook v. Allen, 2 Mass. 
 462; Champion v. Spence, 1 Root 147; McKee v. Straub, 2 Binn. 1; 
 \Vitlierspoon V. Dunlap, 1 McCord 546. 
 
 1 Washburn on Real Prop. 677, 678; Williams on Real Prop. 103; 
 Story'-; Eq. Jur., Sec. 647; Moore v. Moore, 47 N. Y. 469; Bailey v. 
 Si-s;ui. 1 R. I. 233; Whitton v. Whitton, 36 N. H. 326. But chancery 
 did not entertain a suit for partition if there was a dispute concerning 
 
 " 257
 
 195 PARTITION. [PART i. 
 
 animation by the master, allot particular parcels to each ten- 
 ant, and make its decree effectual by compelling the parties 
 to execute mutual deeds of conveyance. In the proceedings 
 at common law, the judgment of the court vested the titles in 
 severalty in each party, without the aid of the mutual con- 
 veyance. 87 The action for partition, whether it be in law or 
 equity, is an action in rem, and must be brought in the county 
 and State in which the land lies. 88 
 
 195. Who can maintain action for partition. Under the 
 statute 31 Henry VIII, only tenants of a freehold estate of 
 inheritance were empowered to compel a partition; but by 
 statute 32 Henry VIII, the right was extended to tenants for 
 life and for years, but partition between them would not affect 
 the rights of reversioners. The general rule now is, that par- 
 tition might be had between the co-tenants of any joint estate 
 except estates in entirety, who have the seisin and immediate 
 right of possession. 89 But a mortgagee of an undivided share 
 
 the title. 4 Kent's Com. 665; 1 Washburn on Real Prop. 678, 679; 
 McCall's Lessee v. Carpenter, 18 How. (U. S.) 297; Hosford V. Merriam, 
 5 Barb. 51; Obert V. Obert, 10 N. J. Eq. 98; Tabler t?. Wiseman, 2 
 Ohio St. 207; Shearer v. Winston, 33 Miss. 140. Under the Illinois 
 statute it is essential for the plaintiff in partition to allege and prove 
 that he is the owner of an undivided interest in the land, with the 
 defendants in the suit. McConnell v. Peirce, 210 111. 627, 71 N. E. Rep. 
 622. See also, Shipley v. Institute (Md. 1904), 58 Atl. Rep. 200; Keith 
 r. Carver (Minn. 1904), 100 N. W. Rep. 366. 
 
 T 1 Washburn on Real Prop. 678 ; Story's Eq. Jur., Sees. 652, 654. 
 But now in most of the States the decree in equity has the same effect 
 as a judgment at law. Hassett v. Ridgley, 49 111. 201; Hoffman v. 
 Stigers, 28 Iowa 302. 
 
 "8 Bonner, Petitioner, 4 Mass. 122; Peabody v. Minot, 24 Pick. 333; 
 Corwithe v. Griffling, 21 Barb. 9; Brown v. McMullen, 1 Nott & M. 252. 
 
 1 Washburn on Real Prop. 680; Co. Lit. 167; Austin v. R. R., 45 
 Vt. 215; Riker v. Darkey, 4 Edw. Ch. 668; Brownwell v. Brownwell, 19 
 Wend. 367; Lamdert v. Blumenthal, 26 Mo. 471; Tabler v. Wiseman, 2 
 Ohio St. 207; Barker v. Jones, 62 N. H. 497; McGowan v. Reed (S. C.), 
 11 S. E. Rep. 685; West V. West (Ala.), 7 So. Rep. 830; Hendershot v. 
 Lawrence (N. J.), 18 Atl. Rep. 774; Chastain v. Higdon, 84 Ga. Ill; 
 Welch v. Agar, 84 Ga. 583; Watson v. Sutro (Cal.), 24 Pac. Rep. 172, 
 258
 
 CH. IX.] PARTITION. 195 
 
 in a joint estate cannot maintain an action for partition, even 
 under the common-law theory of the character of a mort- 
 gagee's interest. 90 A difference in the duration of the estates 
 of the co-tenants will not interfere with the right of parti- 
 tion. 91 Partition, therefore, does not lie between tenants who 
 are disseised either by a stranger or one of their own num- 
 ber, 92 or who are tenants in remainder or reversion. 93 The 
 
 (an equitable title). Rents are but personalty and are not the subject 
 of partition. Thomas f. Hamil, 106 111. App. 524. One having neither 
 the actual or constructive possession cannot, generally, maintain parti- 
 tion. Mersereau v. Camp (1904), 86 N. Y. S. 1141, 92 App. Div. 616; 
 Adams v. Hopkins, 144 Cal. 19; 77 Pac. Rep. 712. There can, generally, 
 be no partition between life tenant and remaindermen. Turner V. 
 Barraud (Va. 1904), 46 S. E. Rep. 318; Smith v. Runnels, 97 Iowa 
 55, 65 N. W. Rep. 1002; Love V. Blauw, 61 Kan. 496, 59 Pac. Rep. 1059, 
 48 L. R. A. 257, 78 Am. S. Rep. 334; Seiders v. Giles, 141 Pa. St. 9.3, 
 21 Atl. Rep. 514. Where a life-tenant consents to a partition in kind by 
 remaindermen, or a sale of the property, he cannot afterwards question 
 the jurisdiction of the court. Brillhard v. Misch (Md. 1904), 58 Atl. 
 Rep. 28. In Missouri, the owner of a contingent remainder is held 
 entitled to partition. Reinders v. Koppelman, 68 Mo. 482; Godman V. 
 Simmons, 113 Mo. 130. 
 
 <>Bannon v. Comegys, 69 Md. 411. 
 
 9i Allen v. Libbey, 140 Mass. 82; Meyer v. Schurbruck, 37 La. An. 
 373; Tilton V. Vail, 53 Hun 324. 
 
 2 Bonneck f. Kennebcck Purchase, 7 Mass. 475 ; Marshall v. Crehore, 
 13 Mete. 462; Hunnewell v. Taylor, 6 Cush. 472; Brownell v. Brownell, 
 19 Wend. 367; Bradshaw V. Callaghan, 8 Johng. 558; Florence r. Hop- 
 kins, 46 N. Y. 184; Clapp v. Bromagham, 9 Cow. 530; Stevens r. Enders, 
 1 Green (N. J.), 271; Brock r. Eastman, 28 Vt. 658; Windsor r. Simp- 
 kins (Or.), 23 Pac. Rep. 669; Criscoe v. Hambrick, 47 Ark. 235; Fenton 
 r. Steere, 76 Mich. 405; Rich r. Bray, 37 Fed. 273; Welch's AppeaL. 
 126 Pa. St. 297. But see Holloway v. Holloway, 97 Mo. 628. Partition- 
 as between co-tenants is never barred by adverse possession, short of" 
 the statutory period. Adams r. Hopkfns, 144 Cal. 19, 77 Pac. Rep. 712. . 
 
 s Hodgkinson, Petitioner, 12 Pick. 374; Hunnewell v. Taylor, 6 Cush, 
 472; Nichols r. Nichols, 28 Vt. 228; Zeigler v. Grim, 6 Watts 106; 
 Swanson v. Calhoun, 81 Ga. 777; Wood v. Sugg, 91 N. C. 93, 49 Am. 
 Rep. 639; Osborne r. Mull, 91 N. C. 203; Eberts v. Fisher, 54 Mich. 294; 
 Bragg v. Lyon, 93 N. C. 151; Moore v. Shannon, 6 Mackay 157; Appeal 
 of Clarke (Pa.), 23 Atl. Rep. 890. In New York and Illinois, there 
 may be a partition of a vested remainder. Blakely v. Colder, 15 N. Y. . 
 
 259
 
 195 PARTITION. [PART i. 
 
 consent of the co-tenant or of any number of them is not 
 required in order to secure a partition. Any one co-tenant 
 may compel a partition by making the other co-tenants de- 
 fendants." 4 Demand need not be made before bringing the 
 suit," 5 And the right of partition cannot be taken away 
 or suspended by a condition against alienation. 98 Partition 
 will not be decreed where the defendants to the suit dispute 
 the title of the plaintiff. 07 If the parties defendant, who 
 dispute the title of the others, be dismissed from the suit, the 
 partition may be decreed as to the others. A dispute over a 
 title can not be settled in a partition suit. 08 Unsettled claims 
 or incumbrances upon the land, or upon the share of one or 
 more of the co-tenants, in the hands of strangers, such as 
 an outstanding claim of dower, or curtesy, or a mortgage 
 of the premises, where the mortgagee is not in possession, 
 will not prevent the partition. But in order that the decree 
 in partition shall bind the holders of these claims or in- 
 cumbrances, existing at the time that the suit for partition is 
 instituted, they must be made parties, in the absence of a stat- 
 ute to the contrary." And if there is any owelty coming to the 
 
 617: Hilliard r. Scoville, 52 111. 449; Hill v. Reno, 112 111. 154; 54 
 Am. Rep. 222. See, also, Smalley v. Isaacson, 40 Minn. 450; Preston 
 V. Brant, 196 Me. 556. 
 
 * Sample V. Sample, 34 Kan. 73 ; Rohn v. Harris, 130 111. 525. 
 
 95 Willard v. Willard* 6 Mackey 559. 
 
 Whitney v. Kindall, 63 N. H. 200. 
 
 7 Peterson v. Fowler, 73 Tex. 254; Carrigan V. Evans, 31 S. E. Rep. 
 262; Fenton v. Steere, 76 Mich. 405; Rich v. Bray, 37 Fed. Rep. 273. 
 The character of the plaintiff's title may be shown by the defendant to 
 be incapable of supporting partition. Thibodeaux r. Thibodeaux, 112 
 La. 906, 36 So. Rep. 800. Where there are conflicting claims of title the 
 one holding the legal title must generally prevail. Lee v. Wysong 
 (1904), 128 Fed. Rep. 833, 63 C. C. A. 483. 
 
 9* Peterson v. Fowler, 73 Tex. 524; Carrigan v. Evans, 31 S. C. 262; 
 Becbe r. Louisville, etc., R. R. Co., 39 Fed. 481. But see Hay's Appeal, 
 123 Pa. St. 110; Simmes' Heirs v. Simmes (Ky.), 11 S. W. Rep. 665; 
 Best r. Sanders, 31 S. C. 602. 
 
 CalI r. Barker, 12 Me. 320; Purvis V. Wilson, 5 Jones L. 22; Brad- 
 shaw r. Callaghan, 8 Johns. 558; Burhaus, 2 Barb. Ch. 398; Taylor V. 
 260
 
 CII. IX.] PARTITION. 195 
 
 mortgagor co-tenant, it must be paid to the mortgagees. 1 If 
 claimants upon the shares of individual co-tenants have been 
 properly brought before the court, the decree in partition will 
 transfer the lien of the incumbrance to the part allotted to 
 the tenant, whose share in the joint estate was incumbered.- 
 The court may always, and by statute in some of the States, 
 is obliged to, stay the decree in partition of any intestate's 
 lands among the heirs, as long as the claim of the intestate's 
 creditors have not been duly provided for. 3 If the interest 
 in the co-tenant's share is acquired after the commencement 
 of the suit, the claimant takes the interest subject to the 
 decree in partition, and need not be made a party. But all 
 who were co-tenants at the time of bringing the suit, must 
 be joined as parties.* If, however, trustees, in whom the 
 
 Blake, 109 Mass. 513; Colton v. Smith, 11 Pick. 311; Kilgour v. Craw- 
 ford, 51 111. 249; De La Vega V. League, 64 Tex. 205; Morse V. Stock- 
 man, 65 Wis. 36; Childs v. Hayman, 72 Ga. 791; Simpson V. Stranghen 
 (X. J. ), 19 Atl. Rep. 667; Judgment Creditors: Owens v. Owens, 25 
 S. C. 155; Barclay V. Kerr, 110 Pa. St. 130; Widow's Dower, Appeal of 
 Black, 130 Pa. St. 516; Claim of Curtesy: Grand Fomer, etc., Co. V. 
 Gill, 111 111. 514; Stark v. Carroll, 66 Tex. 393; McKinney v. Moore, 
 73 Tex. 470; Fales v. Fales, 148 Mass. 42. 
 
 1 Green v. Arnold, 1 1 R. I. 364 ; 23 Am. Rep. 466. 
 
 2 Washburn on Real Prop, 682. In partition between the heirs of a 
 decedent, the general creditors of decedent and the administrator are 
 not, generally, proper parties to the suit. Sheehan v. Allen, 67 Kan. 
 712, 74 Pac. Rep. 245; Speer V. Speer, 14 N. J. Eq. 240; Lyon v. 
 Register, 36 Fla. 273, 18 So. Rep. 589 ; Wood v. Bryant, 68 Miss. 198, 8 
 So. Rep. 518; Garrison v. Cox, 99 N. C. 478, 6 S. E. Rep. 124; 
 Waldron v. Harvey (W. Va. 1904), 46 S. E. Rep. 60. But see, contra, 
 McEvoy v. Leonard, 89 Ala. 455, 8 So. Rep. 40; Green v. Brown, 146 
 Ind. 1, 44 N. E. Rep. 805; Budde v. Rebenack, 137^ Mo. 179, 38 S. W. 
 Rep. 910; Bender v. Terwilliger, 166 N. Y. 590, 59 N. E. Rep. 1118; 
 Ex parte Worley, 49 S. C. 41, 26 S. E. Rep. 949. 
 
 3 Alexander f. Alexander, 26 Neb. 68; Hendry v. Hollingdrake (R. 
 I.), 17 Atl. Rep. 50. 
 
 4 Smith v. Brown, 66 Tex. 543; Jordan v. McMilty (Colo.), 23 Pac. 
 Rep. 460; Grand v. Fomer, etc., Co. v. Gill, 111 111. 541; Stark v. 
 Carroll, 66 Tex. 393; McKinney v. Moore, 73 Tex. 470; Fales v. Fales, 
 148 Mass. 42. But see Coombs V. Unknown Persons, 82 Me. 326. 
 
 261
 
 5 197 PARTITION. [PART i. 
 
 legal title of an estate in common is vested, are properly made 
 parties, it will not be necessary to make the cestuis que trust 
 parties. 8 
 
 196. Partial partition. Partition of a part of the joint 
 estate cannot be asked for. The entire estate must be brought 
 in for partition; but two or more of the co-tenants may ask 
 for a decree setting out their shares in common, and apart 
 from the others. 6 This is likewise the rule where the prop- 
 erty held as a joint estate consists of two or more parcels. If 
 the relations of the parties are such that their rights cannot 
 be adjusted, except by a partition of the entire property, the 
 whole of it must be included in the decree. 7 
 
 197. Manner of allotment. Commissioners are generally 
 appointed by the court, whose duty it is to ascertain the best 
 mode of dividing up the estate among the several tenants. 
 And in performing this duty, they are to be guided by the 
 circumstances of each case. If there are several lots or par- 
 cels of land, one parcel may be given to each, or, if it is a 
 single tract, it is divided up, if possible, into equal parcels; 
 but if in either case an equal division is impossible, the com- 
 missioner may direct the payment of a sum of money, called 
 owelty of partition, in order to equalize the partition. 8 But 
 
 s Railsback v. Lovejoy, 116 111. 442. But trustees are not necessary 
 parties to a suit for partition between the beneficiaries. Welch v. 
 Agar, 84 Ga. 583. Mineral rights in land, being an estate in freehold, 
 are the subject of partition. McConnell V. Pierce (1904), 210 111. 627, 
 71 N. E. Rep. 622; Ames V. Ames, 160 111. 599, 43 N. E. Rep. 592; 
 Hughes v. Devlin, 23 Cal. 502; White Mines & Min. Rem., Sec. 589, 
 ct sub. 
 
 Smith v. Brown, 66 Tex. 543 ; 1 Washburn on Real Prop. 679 ; Bige- 
 low v. Littlefield, 52 Me. 24; Clark v. Parker, 106 Mass. 554; Colton v. 
 Smith, 11 Pick. 511; Arms v. Lyman, 5 Pick. 210; Duncan V. Sylvester, 
 16 Me. 388. 
 
 7 Barnes v. Lynch (Mass), 24 N. E. Rep. 783. 
 
 s Hagar v. Wiswall, 10 Pick. 152 ; Story's Eq. Jur. 654 ; 1 Washburn 
 or) Real Prop. 678; Green v. Arnold, 11 R. I. 364, 23 Am. Rep. 466; Dob- 
 bin V. Rex. 106 N. C. 444; Stannard V. Sperry, 56 Conn. 541; Haines 
 262
 
 CH. IX.] PARTITION. 197 
 
 the consent of the tenant, to whom the larger portion is al- 
 lotted, to that mode of settlement must be obtained, in order 
 to bind him. He cannot be forced to pay the owelty of par- 
 tition against his will. And where both parties want the 
 allotment of the larger share, a sale should be ordered of the 
 entire property. 10 When a bond for owelty is given, it con- 
 stitutes a lien upon the share of land which is allotted in 
 partition to the obligor. 11 A court of equity may so direct 
 partition that the tenant, who has made improvements upon 
 the land, may get the benefit of them even where the partition 
 is made by a sale of the premises and a distribution of the 
 proceeds of sale. 12 If the estate in question is not susceptible 
 of a partition without destroying the value of the property, 
 as where it is a mill, a wharf, and the like, the property will 
 either be ordered to be sold, and the proceeds of sale divided 
 among the tenants according to their equities, or the entire 
 estate will be vested in one, who will then be required to pay 
 to the others their share in money. But an actual partition 
 is more favored, and will be ordered, whenever practicable. 
 
 V. Hewitt, 129 111. 347; Koehler v. Klins, 128 111. 323; Houston v. 
 Blythe, 71 Tex. 716. See, also, Bank v. Stansberry (La. 1903), 34 So. 
 Rep. 452. 
 
 Whitney v. Parker, 63 N. H. 416. 
 
 loCorrothers v. Jolliffe, 32 W. Va. 562. 
 
 iiSniveloy's Appeal (Pa.), 18 Atl. Rep. 124, 129 Pa. St. 250; Burn- 
 side v. Watkins, 30 S. C. 459. 
 
 "Alleman v. Hawley, 117 Ind. 552; Green v. Putnam, 1 Barb. 500; 
 Wood v. Fleet, 36 N. Y. 501; Crafts v. Crafts, 13 Gray, 360; Borah 
 V. Archers, 7 Dana, 177; Buck v. Martin, 21 S. C. 590; 52 Am. Rep. 
 702; Lynch v. Lynch, 18 Neb. 586. But see, contra, Gourlev v. Wood- 
 bury, 43 Vt. 89. In partition between co-tenants, a lien for rents or im- 
 provements will generally be decreed, in the settlement of the respective 
 interests of the co-owners. Bennett v. Bennett (Miss. 1904), 36 So. 
 Rep 452; Walker v. Williams (Miss. 1904), 36 So. Rep. 450; Willis 
 V. L.. mn is (1904), 87 N. Y. S. 1086, 94 App. Div. 67; Porter v. Osman 
 (Mich. 1904), 98 N. W. Rep. 859; W T ard v. Ward, 40 W. Va. 611, 21 
 S. E. Rep. 746, 29 L. R. A. 449, 52 Am. St. Rep. 911; Donnor v. 
 Quartermas, 90 Ala. 164, 8 So. Rep. 7 15,- 24 Am. St. Rep. 778; Col- 
 lett v. Henderson, 80 N. C. 337. 
 
 263
 
 198 PARTITION. [PART i. 
 
 [f partition is made by sale between tenants, one of whom is 
 only a tenant for life, such co-tenant becomes entitled only t:> 
 the income during his life from the sum of money allotted to 
 him as his share in the proceeds of sale. 18 
 
 198. Relief incidental to partition. In decrees in parti- 
 tion, where the petition is so framed as to permit the ad- 
 justment of the several interests and claims of the parties to 
 the suit, the court, as an incidental right of the party entitled 
 thereto, will take into consideration the reasonable rents and 
 profits that have been received by the party or parties in pos- 
 session; will make a proper and just allowance for improve- 
 ments and repairs made upon the common property and such 
 charges for incumbrances placed upon the property or for pay- 
 ments and advancements made upon incumbrances, as will 
 equalize the rights of the different parties to the suit and 
 
 i3<rp. Winstead, 92 N. C. 703; Miller v. Miller, 13 Pick. 237; Adams 
 V. Briggs Iron Co., 7 Cush. 361; King V. Reed, 11 Gray, 490; Wood r. 
 Little, 35 Me. 107; Crowell v. Woodbury, 52 N. H. 613; Conant r. 
 Smith, 1 Aik. (Vt.) 67; Hills V. Dey, 14 Wend. 204; Belknap r. 
 Trimble, 3 Paige Ch. 577; Royston V. Royston, 13 Ga. 425; David i\ 
 David, 9 N. Y. S. 256; Smith v. Upton (Ky.), 13 S. W. Rep. 721; 
 Foster v. Roche, 117 N. Y. 462; Allard t?. Carledon, 64 N. H. 24; Wrenn 
 V. Gibson (Ky.), 13 S. W. Rep. 766; Bruhn V. Fireman's Bldg. Assn. 
 (La.), 7 So. Rep. 556; Durruty V. Musacchia (La.), 7 So. Rep. 
 555; Vail v. Vail, 52 Him, 520; Corrothers v. Jolliffe, 32 W. Va. 562; 
 Tyler v. Jewell (Ky.), 11 S. W. Rep. 25; Rohn V. Harris, 130 111. 525. 
 The law favors partition in kind, rather than a sale and it is only 
 when the land cannot be divided in kind that a sale will be ordered. 
 Kloss v. Wylezalek, 207 111. 328, 69 N. W. Rep. 863; Black r. Black, 
 206 Pa. St. 116, 55 Atl. Rep. 847; Waldron V. Harvey (W. Va. 1904), 
 46 S. E. Rep. 603. Where a petition for partition only asks for a par- 
 tition in kind, a sale thereunder is void and confers no title. Waldron 
 V. Harvey (W. Va. 1904), 46 S. E. Rep. 603. Where the land is not 
 of a uniform value or character it is proper to order a sale. Carpenter 
 V. Coats, 183 Mo. 52, 81 S. W. Rep. 1089: In the partition of mines 
 and mineral property, on account of the uncertainty of the value of 
 such property, a sale is usually preferable to a division in kind. White. 
 Mines & Min. Rem., Sec. 589, et sub. 
 
 264
 
 CH. IX.] PARTITION. 199 
 
 adjust their equities, according to their respective interests. 1 * 
 The interest of a co-tenant who has incumbered the property 
 for his individual benefit, will be charged with such incum- 
 brance ; 15 if one co-tenant has received more than his just 
 share of the rents and profits his interest in the estate may be 
 charged with the excess so received, apportioned among the 
 interests of the other co-tenants ; 16 one co-tenant placing bet- 
 terments upon the property is entitled to have the interests 
 of the other tenants charged therewith before a division in 
 kind between himself and the other tenants, 17 and if the 
 parties to the suit are not tenants in common, but partners 
 in the land, it is proper to order an accounting between them 
 of the value of the rents and profits received by each and tln> 
 value of the use and occupation that each has had of the com- 
 mon property. 18 
 
 199. Effect of partition. Partition, when completed, 
 vests in each tenant an estate in severalty in the part or par- 
 cel allotted to him by agreement of the parties, or by the de- 
 cree of the court ; and the parties cease to be co-tenants. But 
 if the partition is made by the decree of a court, there is 
 a sufficient privity of estate remaining between them, as to 
 make the loss by one tenant, of the part allotted to him, 
 through the enforcement of a superior title, a burden upon all. 
 In compulsory partition, each tenant becomes a warrantor of 
 the titles of the others to the extent of his share. And if one 
 is ousted of his share by the claim of a superior title, he may 
 enter upon the share of the others, and ask for a new par- 
 
 n Shipman v. Shipman (N. J. Ch. 1904), 56 Atl. Rep. 694; Simpson V. 
 Scroggins, 182 Mo. 560, 81 S. W. Rep. 1129; McConnell v. Pierce, 210 
 111. 627, 71 N. E. Rep. 622; Walker f. Williams (Miss. 1904), 36 So. 
 Rep. 450; Bennett v. Bennett (Miss. 1904), 36 So. Rep. 452; Willis V. 
 Loomis, 87 N. Y. S. 1086, 94 App. Div. 67. 
 
 "Hanson v. Hanson (Neb. 1904), 97 N. W. Rep. 23. 
 
 "Thomas v. Hammill, 106 111. App. 524. 
 
 "Legg v. Legg (Wash. 1904), 75 Pac. Rep. 130. 
 
 "Hanson v. Hanson (Neb. 1904), 97 N. W. Rep. 23. 
 
 265
 
 199 PARTITION. [PART i. 
 
 tition of what remains of the original joint estate. 19 But if 
 the partition is by mutual deeds of release, there will be no 
 claim for compensation, unless the partition was tainted with 
 fraud. 20 For this reason, and perhaps for others, it is im- 
 possible for one, who has been a co-tenant, to acquire, by pur- 
 chase after partition, a superior title to the joint estate which 
 he may enforce against his former co-tenants. They may 
 claim the benefit of such purchase by contributing their share 
 of the price or consideration, in the same manner as before 
 partition; and it would seem that this would be the case, 
 whether the partition was voluntary or involuntary. 21 
 
 i 1 Washburn on Real Prop. 689 ; Co. Lit. 173 b. See Campan V. 
 Bernard, 25 Mich. 382; Huntley v. Cline, 93 N. C. 458. But the pur- 
 chaser from the tenant cannot make the same claim for re-partition. 
 Ketchin v. Patrick (S. C.), 11 S. E. Eep. 301. 
 
 zoWeiser v. Weiser, 5 Watts, 279; Beardslee v. Knight, 10 Vt. 185. 
 But where it is necessary that all thould join in an action on the cove- 
 nant of warranty in the conveyance to them, the one who has lost his 
 estate may call upon the others to join him in the action against their 
 common warrantor. Sawyers V. Cater, 8 Humph. 256; Dugan v. Hoi- 
 lins, 4 Md. Ch. 139; 4 Kent's Com. 470. But now, a tenant in com- 
 mon may sue alone on the general covenant of warranty where the 
 breach affects him alone. Lamb V. Danforth, 59 Me. 322, 8 Am. Rep. 
 426. 
 
 aiVenable v. Beuchamp, 3 Dana 326; Co. Lit. 174 a; 1 Washburn on 
 Real Prop. 688. Where the decree in partition establishes the interest 
 of the parties it is final and binding on them, as to such interest, and in 
 a subsequent action for trespass against the defendant in such suit, he 
 is estopped to deny that his interest was limited as specified in the de- 
 cree. Carter v. White (1904), 134 N. C. 466, 46 S. E. Rep. 983. See, 
 also, as to estoppel by decree in partition, Brush v. Coomer ( Ky. 1902 ) , 
 69 S. W. Rep. 793. In re Sampson's Est., 22 Pa. Sup. Ct. 93. 
 266
 
 CHAPTER X. 
 
 ESTATES UPON CONDITION AND LIMITATION, AND CONDITIONAL 
 
 LIMITATIONS. 
 
 SECTION 200. Definition of estates upon condition. 
 
 201. Words necessary to create an estate upon condition. 
 
 202. Conditions precedent and subsequent distinguished. 
 
 203. Invalid conditions Impossibility of performance. 
 
 204. Invalid condition Because of Illegality. 
 
 205. Building restrictions in deeds. 
 
 206. The time of performance. 
 
 207. The effect of breach of the condition. 
 
 208. Waiver of performance. 
 
 209. Equitable relief against forfeiture. 
 
 210. Estates upon condition, distinguished from trusts. 
 
 211. Same From estates upon limitation and conditional 
 
 limitations. 
 
 200. Definition of an estate upon condition. This estate 
 is one which is made to vest, to be modified or defeated, upon 
 the happening or not happening of some event. 1 If the estate 
 is to be created or enlarged 2 upon the performance of the 
 condition, and not before, it is called a condition precedent; 
 if the condition is to defeat or limit an estate already vested, 
 it is a condition subsequent. Conditions are also divided into 
 express and implied. An express condition is, as its name 
 implies, one which is expressly created in the instrument, 
 which limits the estate to which the condition is annexed, and 
 is otherwise called a condition in deed; while an implied con- 
 dition is not expressly declared, but arises by implication of 
 law, and is generally annexed to certain estates as an invari- 
 
 i2 Wash bum on Real Prop. 2; Co. Lit. 201 a. Frank v. Frank 
 (Pa.), 17 Atl. Rep. 11. 
 * See Thayer v. Spear, 58 Vt. 327. 
 
 267
 
 201 ESTATES UPON CONDITION. [PART I. 
 
 able incident. 3 The annexation of a condition to an estate 
 does not affect the grantee's power of enjoyment of the land, 4 
 or prevent its alienation or disposition by devise. The only 
 effect is, that the alienee or devisee takes the estate subject 
 to the possibility of forfeiture by a failure to perform the 
 condition. 3 Nor does the presence of the condition alter the 
 character of the estate, that is, determine whether it is a free- 
 hold, or not. Thus an estate to A. for fifty years, provided 
 he lives so long, is a leasehold, and an estate to A. for life, 
 provided he does not live longer than fifty years is a life es- 
 tate, notwithstanding the first is to terminate with his life, 
 even though the fifty years have not expired, and the second 
 is to terminate with the expiration of the fifty years, al- 
 though he is still alive. 6 
 
 201. Words necessary to create an estate upon condition. 
 No particular words or forms of expression are really neces- 
 sary for the creation of such an estate. Any words, par- 
 ticularly in wills, which show the intention to annex a condi- 
 tion to the estate granted, will be sufficient. Such phrases, 
 however, as "on condition," "provided," "if it shall so hap- 
 pen," etc., are found in constant use, and if resorted to, will 
 ordinarily remove any doubt as to the grant being an estate 
 upon condition. 7 As intimated, it is more difficult in devises, 
 
 32 Washburn on Real Prop. 3; Co. Lit. 201 a; Vanhorne's Lessee V. 
 Dorrance, 3 Dall. 317. 
 
 4 N. J. Zinc and Iron Co. V. Morris, etc., Co. (N. J.), 15 Atl. Rep. 
 227. 
 
 2 Washburn on Real Prop. 23 ; Wilson v. Wilson, 38 Me. 18 ; Under- 
 bill v. Saratoga and Washington R. R. Co., 20 Barb. 45; Taylor p. 
 Sutton, 15 Ga. 103; Munroe v. Hall, 97 N. C. 206. 
 
 2 Washburn on Real Prop. 23 ; Co. Lit. 42 a ; Ludlow v. New York, 
 etc., R. R. Co., 12 Barb. 440. 
 
 i 2 Washburn on Real Prop. 3 ; Vander's Est., 7 Pa. Co. Ct. 482 ; Mil- 
 ler v. Board of Supervisors (Miss.), 7 So. Rep. 429; Cullen v. Sprigg, 
 83 Cal. 56, 23 Pac. 222; Wilkesbarre v. Wyoming, etc., Soc. (Pa.), 19 
 Atl. Rep. 809; Goodpaster v. Leathers (Ind.), 23 N. E. Rep. 1090. But 
 it must be expressed in the deed; it cannot be created by parol. Mar- 
 268
 
 CH. X.] ESTATES UPON CONDITION. 201 
 
 than in grants, to determine whether they are conditional, and 
 even such phrases, as those above mentioned, in the case of 
 devises do not necessarily create an estate upon condition, if 
 from the context the testator appears to have had a contrary 
 intention. 8 It has also been held lately that, where a tract 
 of land was conveyed to the county, in consideration of the 
 permanent removal of the county seat to the town in which 
 the land conveyed was situated, there is no condition subse- 
 quent, which becomes broken by a removal of the county 
 seat many years afterwards. 9 The same conclusion is reached 
 in other cases, where the special consideration of the convey- 
 ance has failed. 10 
 
 shall, etc., School v. Iowa, etc., School, 28 Iowa, 360. Hall v. Horton 
 (Iowa), 44 N. W. Rep. 569. If the right of entry is reserved for the 
 breach of a covenant in the deed, it gives to the covenant the char- 
 acter of a condition and converts the estate into an estate upon con- 
 dition. Moore t?. Pitts, 53 N. Y. 85; Ayer V. Emery, 14 Allen, 69; 
 Rawson v. Uxbridge, 7 Allen, 125; Waters v. Breden, 70 Pa. St. 235; 
 Wheeler v. Walker, 2 Conn. 201 ; Supervisors, etc., v. Patterson, 50 111. 
 119; Berryman v. Schumacher, 67 Tex. 312. But see Raley V. County 
 of Umantilla (Oreg.), 13 Pac. Rep. 890. See post, Sec. 627. In cases 
 of doubt a clause creating an equitable restriction on land is construed 
 most strongly against the grantor and in favor of the free use of the 
 land by the grantee. American Unitarian Ass'n V. Minot, 185 Mass. 
 589, 71 N. E. Rep. 551; McCucker v. Goode, 185 Mass. 607, 71 N. E. 
 Rep. 76. Unless there is a condition of reverter, as a penalty for the 
 breach of the condition, the estate of a grantee upon condition is not 
 terminated, in Arkansas. Davis v. Jernigan, 71 Ark. 494, 76 S. W. Rep. 
 554. 
 
 82Washburn on Real Prop. 4. See Wheeler v. Walker, 2 Com. 201; 
 Hayden v. Stoughton, 5 Pick. 528; Austin v. Cambridgeport Parish, 21 
 Pick. 215; Stuvyesant v. Mayor of N. Y., 11 Paige Ch. 427; Lindsey v. 
 Lindsey, 45 Ind. 552. 
 
 Summer v. Darnell (Ind.), 27 N. E. Rep. 162. 
 
 i Ruggles v. Clare (Kan.), 26 Pac. Rep. 25. A clause in a deed, for 
 a nominal consideration, to a city, conditioned that the land convcynl 
 should always be used as a burying ground and a neat fence forever 
 maintained around it, without any provision for a reverter, is not such 
 a condition as will work a termination of the title of the grantee. 
 Thornton r. Natchez. 129 Fed. Rep. 84, 63 C. C. A. 526. A deed, in 
 Pennsylvania, to a church corporation, providing that the land should 
 
 269
 
 202 ESTATES UPON CONDITION. [PART I. 
 
 202. Conditions precedent and subsequent distinguished. 
 It is not always an easy matter to determine in a given case 
 whether a condition is precedent or subsequent. It is clear 
 that in a grant to A. upon his marriage, or in a lease for ten 
 years, and if he pays a certain sum of money, then to him 
 and his heirs forever, the conditions are precedent ; or that in 
 a grant to A. for life, provided she remains a widow, or a 
 grant in fee with a rent reserved, with right of entry upon 
 failure to pay, they are conditions subsequent. But in wills, 
 particularly, great difficulty is sometimes experienced in reach- 
 ing a definite conclusion on this point. The construction is, 
 of course, governed by the intention of the grantor or devisor, 
 as obtained from the instrument of conveyance. Perhaps the 
 rule for the determination of the character of a condition 
 is best expressed in the words of the court in the case cited 
 below, viz. : "If the act or condition required do not neces- 
 sarily precede the vesting of the estate, but may accompany 
 or follow it, and if the act may as well be done after, as 
 before the vesting of the estate; or if, from the nature 
 of the act to be performed, and the time required for its 
 performance, it is evidently the intention of the parties that 
 the estate shall vest, and the grantee perform the act, after 
 taking possession, then the condition is subsequent. ' ' " But 
 
 be used " for mission purposes only," without any limitation over, in 
 case of non-user, the grantee was held to take a good, marketable title, 
 in fee simple. Rankin Baptist Church v. Edwards, 204 Pa. St. 216, 53 
 Atl. Rep. 770. A clause following the nominal consideration mentioned 
 in a deed, " and for the further consideration of the support, during 
 the life of the grantor," is not a condition subsequent, working a for- 
 feiture, but a mere matter of consideration, or, at most a covenant. 
 Helms v. Helms, 135 N. C. 164, 47 S. E. Rep. 415. 
 
 "Underbill v. Saratoga and Washington R. R. Co., 20 Barb. 455. 
 See also Finlay v. King's Lessee, 3 Pet. 340; Taylor v. Maxon, 9 
 Wheat. 325; Austin v. Cambridgeport Parish, 21 Pick. 215; Barruss V. 
 Madan, 2 Johns. 145; Horsey v. Horsey, 4 Harr. 517; Waters v. Bieden, 
 70 Pa. St. 235; Farabow v. Green, 108 N. C. 330, where condition en- 
 larged a life estate into a fee; Stanton V. Allen (S. C. ), 10 S. E. Rep. 
 878; Blanchard f. Morey, 56 Vt. 170, a case of condition precedent; 
 Morse v. Hayden, 82 Me. 227; Wahl's Estate, 8 Pa. Co. C. 309; John- 
 270
 
 CH. X.] ESTATES UPON CONDITION. 203 
 
 while the courts are inclined, in any case of doubt, to treat the 
 condition as subsequent, yet a stricter rule of construction is 
 applied than if the condition is precedent. It must be 
 created by express limitation, or arise by necessary implica- 
 tion, in order to work a forfeiture of an estate already 
 vested. 12 And if the performance of the condition is not ex- 
 pressly imposed upon the heirs and assigns, its breach will 
 not work a forfeiture, if the estate has previously descended 
 to the heirs, or has been conveyed away. In such a case, the 
 estate cannot be forfeited for any breach of the condition, 
 occurring after the grantee has parted with the estate. 13 
 
 203. Invalid conditions Impossibility of performance. 
 If the condition is impossible from the beginning, and is for 
 that reason manifestly, absurd, or becomes impossible through 
 
 son v. Warren, 74 Mich. 491 ; Robertson v. Mowell, 66 Ind. 565, con- 
 dition precedent; Burleyson V. Whitley, 97 N. C. 295, condition pre- 
 cedent; Barnet v. Barnet, 43 N. J. Eq. 297, precedent; Reuff'v. Cole- 
 man's Heirs, 30 W. Va. 171; Hoard V. Wheatley, 15 Lea 607; Wein- 
 reich v. Weinreich, 18 Mo. App. 364; Chute V. Washburn, 44 Minn. 312. 
 
 "Laberee V. Carleton, 53 Me. 213; Merrifield v. Cobleigh, 4 Cush. 
 178; Bradstreet v. Clark, 21 Pick. 389; Hoyt v. Kimball, 49 N. H. 327; 
 Ludlow v. N. Y. and Harlem R. R. Co., 12 Barb. 440; Martin v. Bal- 
 lou, 13 Barb. 119; McWilliams V. Nisley, 2 Serg. & R. 523; McKelway 
 r. Seymour, 29 N. J. L. 322; Gadberry v. Sheppard, 27 Miss. 203; Voris 
 v. Renshaw, 49 111. 432; Board etc., V. Trustees, etc., 63 111. 204. A 
 deed, made upon condition that the grantee therein was to negotiate a 
 loan, is a condition precedent to the vesting of the title and if no loan 
 is made, the estate terminates. Carloss v. Oxford (Ark. 1904), 80 S. 
 W. Rep. 144. A condition subsequent that the life estate shall termi- 
 nate if the life tenant does not occupy the land, is valid. Lewis v. 
 Lewis, 76 Conn. 586, 57 Atl. Rep. 735. A provision in the nature of 
 a condition subsequent, providing for the grantor's support was en- 
 forced, in Michigan, in Cornell v. Whitney (1903), 93 N. W. Rep. 614. 
 See, also, Wanner v. Wanner (Wis. 1902), 115 Wis. 196, 91 N. W. Rep. 
 (571. A deed made upon the condition that the land at the grantor's 
 death shall be subject to his debts, is a valid condition, for the breach 
 of which, the land can be sold to pay his debts. Matheny v. Fergu- 
 son (W. Va. 1904), 47 S. E. Rep. 886. 
 
 is 2 Washburn on Real Prop. 7, 8; Emerson v. Simpson, 43 N. H. 475; 
 Page v. Palmer, 48 N. H. 385. 
 
 271
 
 204 ESTATES UPON CONDITION. [PART I. 
 
 the act of the grantor, or by the act of God or inevitable acci- 
 dent, the performance will be excused, and the condition held 
 void. Its invalidity, however, would have a different effect 
 upon the estate, according as it is a condition precedent or 
 subsequent. If the condition is precedent, the estate will fail, 
 just as if the condition was valid and had been broken. 14 
 But if it is a condition subsequent, its invalidity would de- 
 stroy the right of entry and forfeiture in the grantor, and 
 leave the estate in the grantee absolute and free from the con- 
 dition. 15 
 
 204. Invalid conditions Because of illegality. Similar 
 effects would be produced, if the condition is invalid, because 
 of its illegality. A condition is illegal, whenever it involves 
 the performance of an act prohibited. by law. Thus a con- 
 dition, that the grantee shall commit a murder or any other 
 crime, would be void; and, if it is a condition subsequent, 
 the grantee would take an absolute estate. The illegal condi- 
 tions, most commonly met with, are those restricting marriage 
 and the alienation of a fee simple estate by the grantee. An 
 absolute restriction of that kind would be just as invalid as 
 the condition to commit a crime. 16 But where an estate is 
 
 **Co. Lit. 206; Harvry v. Aston, 1 Atk. 374; Taylor V. Mason, 9 
 Wheat. 325; Martin V. Ballou, 13 Barb. 119; Vanhorne's Lessee v. Dor- 
 rance, 2 Dall. 317; Mizell V. Burnett, 4 Jones L. 249. 
 
 is Co. Lit. 206 a ; Brandon ' v. Robinson, 18 Ves. 429; Hughes v. Ed- 
 wards, 9 Wheat. 489 ; Blackstone Bank v. Davis, 12 Pick. 42 ; Badlam v. 
 Tucker, 1 Pick. 284; Merrill V. Emery, 10 Pick. 507; Gadberry r. 
 Sheppard, 27 Miss. 203. As to just how far the impossibility of per- 
 formance will relieve a party from an absolute condition of his con- 
 tract, where no exception as to the impossibility of performance is en- 
 tered in the contract, is differently decided by different courts. One 
 who agreed to perform the impossible without qualification, was held 
 to his contract in Missouri, in Brinkenhoff v. Elliott, 43 Mo. App. 193. 
 See also, Hall v. School' Dist. 24 Mo. App. 218; Harrison v. R. R., 74 
 Mo. 371. 
 
 "Brandon v. Robinson, 18 Ves. 429; Mumoe v. Hall, 97 N. C. 206; 
 Phillips v. Ferguson (Va.), 8 S. E. Rep. 241; Myers v. Bentz, 127 Pa. 
 St. 222; Mclntyre t?. Mclntyre, 123 Pa. St. 323; Hartman v. Herbine, 7 
 272
 
 CH. X.] ESTATES UPON CONDITION. 204' 
 
 granted to a widow during widowhood, it being an estate upon 
 limitation and not an estate upon condition, it is a good limi- 
 tation, and the estate will terminate upon her marriage. 17 
 But if the devise is for life, or during widowhood, having first 
 given her an estate for life, the subsequent limitation during 
 widowhood operates as a condition; it must be construed to 
 be a condition and for that reason has been sometimes held to 
 be void, but not always. 18 The general rule is that if the re- 
 striction against alienation or marriage is only for a limited 
 period, as during minority or coverture, or if it is directed 
 only against certain persons, as that the grantee shall not 
 alien to, or marry, a certain named person or class of per- 
 sons, it is a good condition and can be enforced. 19 So, also, 
 
 Pa. 0. C. 630; Lloyd r. Mitchell, 130 Pa. St. 205; Halladay v. Stickler, 
 78 Iowa, 388; Farris v. Rogers (Ky.), 7 S. W. Rep. 543; Pepper's Ap- 
 peal, 120'Pa. St. 235; Anglesea V Church Wardens, 6 Q. B. 114; Willis 
 V. Hiscox, 4 Mylne & Cr. 197 ; Hall v. Tuffts, 18 Pick. 455 ; Blackstone 
 Bank v. Davis, 21 Pick. 42; Schermerhorn V. Meyers, 1 Denio, 448; 
 Allen V. Craft, 109 Ind. 476; Greene V. Greene, 125 N. Y. 506; Stans- 
 bury V. Hubner, 73 Mel. 228. But for condition against sale, by a life 
 tenant, see Lewis V. Lewis, 76 Conn. 586, 57 Atl. Rep. 735. 
 
 "Oo. Lit. 42 a; ante, Sec. 60; Harmon v. Brown, 58 Ind. 207; Cop- 
 pajje v. Alexander's Heirs. 2 B. Mon. 113; Boylan v. Deinzer, 45 N. J. 
 Eq. 485; Little v. Giles, 25 Neb. 313; Schreiner v. Smith, 38 Fed. Rep. 
 897; Traphagen V. Levy, 45 N. J. Eq. 448; Best V. Best (Ky.), 11 S. W. 
 Rep. 600; Long f. Paul, 127 Pa. St. 456; Levengood v. Hopple (Ind.), 
 24 N. E. Rep. 373; Brotziran's App. (Pa.), 19 Atl. Rep. 564; Siddons 
 v. Cockrell (111.), 23 N. E. Rep. 586; Harmon v. Dyer (Ky.), 12 S. W. 
 Rep. 774; Myers v. Adler, 6 Mackey, 515; Rowland v. Rowland (S. C. ), 
 6 S. E. Rep. 902; Squier v. Harvey (R. I.), 14 Atl. Rep. 862; Beshore 
 V. Lytle, 114 Ind. 8; Summit v. Yount, 109 Ind. 506; King v. Grant, 
 55 Conn. 166; McGuire's Appeal (Pa.), 11 Atl. Rep. 72; Knight v. Ma- 
 honey et al., 152 Mass. 523. 
 
 "Lloyd v. Lloyd, 2 Sim. (N. s.), 255; Coon v. Bean, 69 Ind. 474; 
 Stillwell r. Knapper, 69 Ind. 558, 35 Am. Rep. 240; contra, Dumey v. 
 Schaeffer, 24 Mo. 170; see Martin v. Seigler (S. C.), 10 S. E. Rep. 1073; 
 Greenhalgh v. Marggraf, 7 N. Y. S. Rep. 728. Any illegal condition 
 in deed renders it void. Watkins v. Nugent, 118 Ga. 372, 45 S. E. 
 Rep. 260; Wakefield v. Van Tossee, 202 111. 41, 66 N. E. Rep. 830. 
 
 iCo. Lit. 223 a; 2 Washburn on Renl Prop. 9; Hunt v. Wright. 47 N. 
 H. 396; Plumb v. Tobbs, 41 N. Y. 442; McWilliams v. Nisly, 2 Serg. 
 
 18 273
 
 204 ESTATES UPON CONDITION. [PART I. 
 
 is a general restriction of alienation valid, where the land is 
 conveyed to charitable uses. 20 A condition, restraining the 
 alienation of a life estate or one for years, is valid, even 
 though it is absolute both as to the persons and time. 21 The 
 statute quia emptores, which made conditions in restraint of 
 alienation void, only applied to estates in fee. 22 So also will 
 a condition be void, which defeats the estate if it is appro- 
 priated to the payment of the grantee's debts. 23 But an 
 estate may be limited to determine upon the insolvency or 
 bankruptcy of the grantee ; in such a case, however, the estate 
 would be one upon limitation and not upon condition. 24 It 
 may be added finally, that a condition is never illegal because 
 the prohibited act or deed is itself lawful. Thus a condition 
 
 A R. 513; Attwater, 18 Beav. 330; Large's Case, 2 Leon. 82; Stewart 
 r. Brady, 3 Bush. 623; Reuff V. Coleman's Heirs, 30 W. Va. 171. But 
 see Greene v. Greene, 125 N. Y. 506: Lewis v. Lewis, 76 Conn. 586, 
 57 Atl. Rep. 735. 
 
 20 Butterfield v. Wilton Academy ( Iowa ) , 38 N. W. Rep. 390 ; Bennett 
 v. Washington Cemetery, 26 Abb. N. C. 459. But the restriction will 
 not be presumed from the declaration of the trusts. Fewbold v. Glenn 
 (Md.), 10 Atl. Rep. 242; Gage v. School District No. 7 (N. H.), 9 Atl. 
 Rep. 387. 
 
 21 1 Washburn on Real Prop. 118, 207; 1 Cruise Dig. 108; see ante, 
 Sees. 51, 140; Lewis v. Lewis, 76 Conn. 586, 57 Atl. Rep. 735. 
 
 22 Crisswell v. Grumbling, 107 Pa. St. 408 ; Hayes v. Davis, 105 N. C. 
 482; Reynolds v. Crispin (Pa.), 11 Atl. Rep. 236; Chautauqua As- 
 sembly v. Ailing, 46 Hun, 582. A condition against alienation of land, 
 in a deed, during the life of the grantor and providing for monthly 
 payments to her, is a condition running with the land, and is a con- 
 tinuing charge upon it, which equity will enforce. Polzin v. Polzin, 110 
 111. App. 187. Where the estates of two life tenants are upon the con- 
 dition that neither should alien the estate, a purchase of the first life 
 tenant's interest by the reversioner is not a waiver of the condition as 
 to the second life tenant. Lewis v. Lewis, 76 Conn. 586, 57 Atl. Rep. 
 735. 
 
 23 Brandon v. Robinson, 18 Ves. 429; Blackstone Bank v. Davis, 21 
 Pick. 42; Wellington v. Janvrin, 60 N. H. 174; McCormick, etc., Ma- 
 chine Co. V. Gates (Iowa), 39 N. W. Rep. 657. 
 
 2 See post, Sec. 370. As to condition that on death of the grantor 
 the land shall be liable for his debts, see, Matheny v. Ferguson (W. 
 Va. 1904), 47 S. E. Rep. 886. 
 274
 
 CH. X.] ESTATES UPON CONDITION. 205 
 
 against the sale of intoxicating liquor on the premises sold and 
 granted, is legal even though the sale of liquor is not gener- 
 ally prohibited by law in the State in which the question 
 arises. 25 It is also permissible to convey an estate upon con- 
 dition, that the grantor does not revoke the conveyance dur- 
 ing her life. 26 But this would more properly be described as 
 a power of revocation. 27 
 
 205. Building restrictions in deeds. Analogous to condi- 
 tions effecting the use or enjoyment of property by the gran- 
 tee, are the modern building restrictions in deeds to city prop- 
 erty, which may or may not be construed by the courts as con- 
 ditions limiting the use cr method of building upon the land 
 granted, according to the language employed in the deed, or 
 other instrument of conveyance. A restriction in deeds to 
 several lots that but ' ' one building is to be used as a dwelling 
 house, upon each lot," is held to be violated by a double 
 dwelling house, with separate entrances and exits, which is 
 occupied by two families ; 28 a restriction in a deed to several 
 lots fronting upon a public street, that no buildings shall be 
 constructed nearer than a certain distance of the street, if 
 part of a general scheme or plan, in the conveyance or dedica- 
 tion of such property, is a condition which the courts will en- 
 force, 29 and a condition that no building shall be used for a 
 
 25 Smith v. Barrie, 56 Mich. 314. A condition against the sale of 
 intoxicating liquor on the land granted, is a condition working a for- 
 feiture, in Nebraska, for the breach of which the grantee can be ejected. 
 Jetter v. Lyon (1904), 97 N. W. Rep. 596. See, also, Granite Bldg. 
 Co. v. Green, 25 R. I. 586, 57 Atl. Rep. 649; Spear v. Fuller, 8 N. H. 
 174, 28 Am. Dec. 391; Brown v. Bragg, 22 Ind. 122; Burns V. Mc- 
 Cubbin, 3 Kan. 221, 87 Amer. Dec. 468, Sec. 149 ante. 
 
 zeRecketts v. Louisville, etc., Ry. Co. (Ky.), 15 S. W. Rep. 182. 
 
 27 See post, Sec. 404. 
 
 28 Harris v. Roraback (Mich. 1904), 100 N. W. Rep. 391; McMurray 
 v. Investment Company, 103 Ky. 308, 45 S. W. Rep. 96, 40 L. R. A. 
 489; Reardon v. Murphy, 163 Mass. 501, 40 N. E. Rep. 854. 
 
 2Helmsley v. Marlborough Hotel Co. (N. J. Ch. 1903), 55 Atl. Rep. 
 994; Schubert v. Eastman Realty Co., 25 Ohio Cir. Ct. 336; Ewersten 
 v. Gerstenberg, 186 111. 344, 57 N. E. Rep. 1051, 51 L. R. A. 310. 
 
 275
 
 205 KSl'.VTES LTON CONDITION. [PART I. 
 
 saloon, by the grantee, or any one claiming under him, and 
 that such use shall cause a reverter of the lot so used, to the 
 grantor or his heirs, is a valid condition subsequent, running 
 with the land. 30 But in cases of any doubt, such clauses 
 creating restrictions upon the grantee's land are construed 
 most strongly against the grantor and in favor of the free 
 use of his land, by the grantee. 31 And unless part of a gen- 
 eral plan, in the sale of contiguous properties, a clause limiting 
 the buildings to certain portions of the land sold, will not be 
 enforced ; 32 annexations or porches, not a portion of the build- 
 ing proper, are not held to violate restrictions against build- 
 ings erected nearer than a certain distance of the street ; 33 a 
 grantee who has violated such a restriction cannot ask to have 
 it enforced as against another grantee of the property, 34 and 
 no language will be held to imply such a condition on the 
 enjoyment or use of property, that is not clear and explicit, 
 as a condition, instead of a covenant or other "understand- 
 ing" between the parties. 85 
 
 so Jetter v. Lyon (Neb. 1903), 97 N. W. Rep. 596. 
 
 31 Amer. Unitarian Ass'n v. Minot, 185 Mass. 589, 71 N. E. Rep. 551. 
 
 32 Schubert v. Eastman Realty Co., 25 Ohio Cir. Ct. 336 ; Ewersten v. 
 Gerstenberg, 186 111. 344, 57 N. E. Rep. 1051, 51 L. R. A. 310. 
 
 ssOlcott V. Shepard, 89 N. Y. S. 201, 96 App. Div. 281; Hawes V. 
 Favor, 161 111. 440, 43 N. E. Rep. 1076; Kirkpatrick v. Peshine, 24 N. 
 J. Eq. 206. 
 
 34 Schubert v. Eastman Realty Co., 25 Ohio Cir. Ct. 336; Ewersten 
 ff. Gerstenberg, 186 111. 344, 57 N. E. Rep. 1051, 51 L. R. A. 310. 
 
 35 Huron v. Wilcox (S. D. 1904), 98 N. W. Rep. 88. A clause in a 
 deed to a city, for a fair valuable consideration, that it is the " under- 
 standing " that the premises are to be used for City Hall purposes only, 
 is void, as a condition, limiting the use of such property and the 
 grantee can use it for any purpose it desires. Huron v. Wilcox, supra. 
 See also, Curtis v. Board of Education, 43 Kan. 138, 23 Pac. Rep. 98; 
 Packard v. Ames, 16 Gray, 327; Green v. O'Connor (R. L), 25 Atl. 
 Rep. 692, 19 L. R. A. 262; Soukup v. Topka (Minn.), 55 N. W. Rep. 
 824; Faith v. Bowles (Md.), 37 Atl. Rep. 711, 63 Am. St. Rep. 489; 
 Farnham v. Thompson, 34 Minn. 330; Weir V. Simmons (Wis.), 13 N. 
 W. Rep. 873; Portland V. Terwillier (Or.), 19 Pac. Rep. 90; Eckroyd 
 V. Coggeshell, 21 R. I. 1, 41 Atl. Rep. 260, 79 Am. St. Rep. 741; Kal- 
 patrick v. Mayor (Md.), 31 Atl. Rep. 807, 27 L. R. A. 643, 48 Am. St. 
 
 276
 
 CH. X.] ESTATES UPON CONDITION. 
 
 206. The time of performance. If there is a time speci- 
 fied, within which the condition is to be performed, it cannot 
 be performed afterwards. Where there is no express specifi- 
 cation of time, it must be determined from the apparent in- 
 tention of the grantor or testator, as gathered from the con- 
 text and the nature of the condition. Generally, if the time 
 of performance is not limited, the grantee has his whole life in 
 which to perform. But if a prompt performance appears to 
 have been intended from the use of words in the present tense, 
 or if any other way an immediate performance is indicated ; 
 or if an early performance is necessary, in order that the 
 grantor may obtain the expected benefit, the grantee has only 
 a reasonable time in which to perform. Thus, where an es- 
 tate was conveyed upon condition, that the grantee should 
 pay a certain mortgage upon the estate, a prompt compliance 
 with the condition was held necessary. 86 
 
 Rep. 509; Carroll Co. Academy v. Trustees (Ky), 47 S. W. Rep. 617; 
 Ashland r. Griener (Ohio), 50 N. E. Rep. 99; Hand v. St. Louis (Mo.), 
 59 S. W. Rep. 92. But where a deed to a city, provides for the erec- 
 tion of a building, within a fixed period and also for a reverter, in 
 case of a breach of the condition, a failure to build, as provided, 
 works a forfeiture of the estate. Trustees Union College r. New York, 
 173 N. Y. 38, 65 N. E. Rep. 853; Best v. Nagle, 182 Mass. 495. 65 N. 
 E. Rep. 842. 
 
 8Co. Lit. 208 b; Finlay v. King's Lessee, 3 Pet. 374; Hayden V. 
 Stoughton, 5 Pick. 528; Ross v. Tremain, 2 Mete. 495; Allen V. Howe, 
 105 Mass. 241; Williams r. Angell, 7 R. I. 152; Stuyvesant v. Mayor of 
 N. Y., 11 Paige Ch. 425; Hamilton V. Elliot, 5 Serg. & R. 375. A con- 
 dition against incumbrances is held to apply to voluntary incum- 
 brances only and a sale for taxes does not work a forfeiture of such 
 a condition. Fonts r. Miliken (Ind. 1903), 65 N. E. Rep. 1050. A 
 condition against incumbrances and providing for a forfeiture for breach 
 thereof, was held limited to the mortgaged portion of the granted 
 premises, in Indiann. in Fonts r. ^[ilMken (1903), 65 N. E. Rep. 1050. 
 A beneficiary holding property, by virtue of a condition entered into 
 by its committee, cannot repudiate the condition and also hold the 
 property, but will hold it as a trustee for the grantor, after breach of 
 the condition. Med. College of New York V. N. Y. University, 78 N. Y,. 
 S. 673. 76 App. Div. 48. One taking land with knowledge of the 
 breach of a condition subsequent is bound by such condition and the 
 
 277
 
 207 ESTATES UPON CONDITION. [PART I. 
 
 207. The effect of a breach of the condition. If it is a 
 condition precedent, the failure to perform will prevent the 
 estate from taking effect. 37 But if it is a condition subse- 
 quent, the estate is defeated only at the election of the parties 
 who can take advantage of the breach. 88 But where the con- 
 dition is a double contingency, the breach of which cannot be 
 claimed unless both contingencies occur, the happening of 
 one of them will not have any effect upon the estate to which 
 the condition is attached. 39 At common law it was necessary 
 for such a party to enter upon the estate, in order to work a 
 forfeiture. It could not be effected by bringing an action 
 for the recovery of the possession. This rule has been some- 
 what changed, so that at the present time the ordinary action 
 of ejectment would have the same effect as the common-law 
 entry. 40 Where the grantor is already in possession, the for- 
 
 forfeiture can be enforced against him, by the grantor's heirs. Brown 
 . Tilley, 25 R. I. 579, 57 Atl. Rep. 380. 
 
 s^Corless v. Oxford (Ark. 1904), 80 S. W. Rep. 144. 
 
 ss The breach of the condition does not alone defeat the estate. Web- 
 ster v. Cooper, 14 How. 501; Talman V. Snow, 35 Me. 342; Hubbard v. 
 Hubbard, 97 Mass. 192; Warner V. Bennett, 31 Conn. 477; Ludlow V. 
 N. Y. & Harlem R. R., 12 Barb. 440; Canal Co. v. Railroad Co., 4 Gill 
 & J. 121; Phelps v. Chesson, 12 Ired. 194; Vail v. Long Island R. Co., 
 106 N. Y. 283; Berryman V. Schumacher, 67 Tex. 312. A condition 
 that the deed is to be void, if the grantee fails to support the grantor, 
 can be taken advantage of only by the grantor himself and not by 
 third parties. Helms v. Helms, 135 N. C. 164, 47 S. E. Rep. 415. 
 
 3Forsyth v. Forsyth (N. Y.), 19 Atl. Rep. 119; Morse V. Church, 
 15 R. I. 336. 
 
 See 1 Prest. Est. 46, 48, 50; Co. Lit. 201 a; 2 Washburn on Real 
 Prop. 13; 1 Smith Ld. Cas. 89; Doe v. Masters, 2 B. & C. 490; Osgood 
 t/. Abbott. 58 Me. 73; Sperry v. Sperry, 8 N. H. 77; McKelway v. Sey- 
 mour, 29 N. J. L. 329 ; Jackson V. Crysler, 1 Johns. 125 ; Fonde v. Sage, 
 46 Barb. 123; Green v. Pettingill, 47 N. H. 375; Austin v. Cambridge 
 port Parish, 21 Peck. 224; Stearns V. Harris, 8 Allen, 598; Phelps V. 
 Chesson, 12 Ired L. 194; Chalker v. Chalker, 1 Conn. 79. On breach of 
 a condition subsequent in a deed, the grantor or his heirs, can enforce 
 the forfeiture, by ejectment, in Nebraska. Jetter v. Lyon (1904), 97 N. 
 W. Rep. 596. 
 
 278
 
 CH. X.] ESTATES UPON CONDITION. 207 
 
 feiture is effected without any overt act. 41 This right of en- 
 try need not be expressly reserved where the condition is ex- 
 press. It follows as a necessary incident to the condition and 
 passes with the land, into whosesoever hands it may come. 42 
 The enforcement of the forfeiture does not depend upon any 
 previous demand for the performance of the condition. The 
 grantee should perform without any demand or notice. 43 
 Conditions are reserved only to the grantor and his heirs. 
 They cannot be reserved for the benefit of third persons. As 
 a general rule, therefore, only the grantor and his heirs have 
 a right to enter upon condition broken, and they lose their 
 rights if they should convey away the reversion in them. The 
 right of entry is not an estate, not even a possibility of re- 
 verter; it is simply a chose in action.** And although it has 
 been held that an express condition can be devised with the 
 reversion, and the devisee and his heirs enter for the breach, 4 "' 
 
 "Guffey V. Hukill (W. Va.), 11 S. E. Rep. 750; Witte v. Quinn, 
 38 Mo. App. 681. 
 
 42Osgood V. Abbott, 58 Me. 73; Gray v. Blanchard, 8 Pick. 284; Jack- 
 son V. Aller, 3 Cow, 220; Jackson V. Topping, 1 Wend. 388; Bo\von v. 
 Bowen, 18 Conn. 535. A clause in a deed that " this deed is upon the 
 following condition upon the breach of which the grantor, or his wife, 
 or heirs shall have the right to re-enter and thereupon the title con- 
 veyed hereunder shall cease," creates a condition subsequent, for a 
 breach of which the estate can be determined. Brown v. Tilley, 25 R. 
 I. 579, 57 Atl. Rep. 380. 
 
 43 Royal v. Aultman-Taylor Co., 116 Tnd. 424. 
 
 Shulenberg v. Harriman, 21 Wall. 346; Hooper v. Cummings, 45 
 Me. 359; Gray v. Blanchard, 8 Pick. 284; Merritt V. Harris, 102 Mass. 
 328; Fonda V. Sage, 46 Barb. 122; Cross v. Carson, 8 Blackf. 138; Co. 
 Lit. 201 a. Butler's note, 84; 2 Washburn on Real Prop. 13-15; Hay- 
 ward v. Kinney, 84 Mich. 501 ; Helms v. Helms, 135 N. C. 164, 47 S. E. 
 Rep. 415; Brown V. Tilley, 25 R. I. 579, 57 Atl. Rep. 380. 
 
 *'> This appears to be a local rule in Massachusetts. Hayden v. 
 Stoughton, 5 Pick. 528; Clapp v. Stoughton, 10 Pick. 463; Austin v. 
 Cambridgeport Parish, 21 Pick. 215. See contra, Avelyn v. Ward, 1 
 Ves. Sr. 422; Southard v. Central R. R., 26 N. J. L. 21; Cornelius v. 
 Kins. 25 N. J. L. 386. See also Webster V. Cooper, 14 How (U. S.) 
 501; Nicoll v. N. Y. & Erie R. R., 12 N. Y. 121; Henderson V. Hunter, 
 59 Pa. St. 341; Jones v. Roe, 3 T. R. 88. 
 
 279
 
 207 ESTATES UPON CONDITION. [PART L 
 
 yet such a condition cannot be aliened or assigned, and does 
 not pass with a grant of the reversion. 46 This rule against 
 assignment of the right of entry was restricted by the statute, 
 32 Hen. VIII, ch. 34, to freehold estates upon condition, thus 
 enabling the assignees of the reversion to enforce the for- 
 feiture of leasehold estates for the breach of the condition. 47 
 But if it be a condition in law, or an implied condition, the 
 right of entry was always assignable, it being considered more 
 in the nature of an incident to the right of property, than a 
 separate and independent chose in action.* 6 But the condition 
 cannot be apportioned between two or more assignees of sepa- 
 rate portions of the reversion, and it will be destroyed by such 
 dissection of the reversion. 48 If the grantor is in possession 
 of the property at the time of the breach, no act of entry 
 is required of him, in order to defeat the estate. But if he 
 is out of possession, he must enter, or do acts equivalent to 
 entry, with the express intention of thereby working a forfeit- 
 ure. Entry without such an intention would have no effect. 50 
 The right of entry may be exercised, even though the breach 
 of the condition has worked no material injury to the grantor. 
 
 < Co. Lit. 214 a; Hooper v. Cummings, 45 Me. 359; Gray v. Blanch- 
 ard, 8 Pick. 284 ; Guild V. Richards, 16 Gray, 309 ; Gilbert v. Peteler, 38 
 N. Y. 165; Nicholl v. N. Y. & Erie R. R., 12 Barb. 461; s. c. 12 N. Y. 
 132; Warner v. Bennett, 31 Conn. 478; Cross v. Carson, 8 Blachf. 138; 
 Smith v. Brannan, 13 Cal. 107; Hayward v. Kinney, 84 Mich. 591. 
 
 47 Co. Lit. 215 a ; 1 Washburn on Real Prop. 476; Fenn v. Smart, 12 
 East. 444; Lewes v. Ridge, Cro. Eliz. 863; Burden v. Thayer, 3 Mete. 
 76; Trask v. Wheeler, 7 Allen, 111; Plumleigh v. Cook, 13 111. 669. 
 
 482 Washburn on Real Prop. 13; Co. Lit. 214. 
 
 4Co. Lit. 215 a; Taylor's L. & T., Sec. 296; Wright V. Burroughs, 3 
 Mann. Gr. & S. 700; Doe v. Lewis, 5 Ad. & El. 277; s. c. Eng. C. L. 
 277; Cruger v. McLaury, 41 N. Y. 225. 
 
 so Andrews v. Senter, 32 Me. 394 ; Willard v. Henry, 2 N. H. 120 ; Rol- 
 lins v. Riley, 44 N. H. 13; Bowen V. Bowen, 18 Conn. 535; Hamilton v. 
 Elliott, 5 Serg. & R. 375; Richter v. Richter, 111 Ind. 456. And where 
 he is in possession, his retention of possession after the breach will not 
 necessarily work a forfeiture. He may, even under such circumstances, 
 waive the breach, and thus prevent a forfeiture. Guild v. Richards, 16 
 Gray, 317; Hubbard v. Hubbard, 97 Mass. 192. 
 280
 
 CH. X.] ESTATES UPON CONDITION. 208 
 
 And he can exercise it, notwithstanding he may have other 
 equally effective remedies. 51 
 
 208. Waiver of performance. If a party, who is entitled 
 to the right of entry, waives the performance by an actual 
 release of the condition or by an express license, the condi- 
 tion is gone, and he cannot take advantage of any subsequent 
 breach. But a mere acquiescence, without actual license, 
 would only constitute a waiver of the present breach, and the 
 right of entry for subsequent breaches would survive. 52 This 
 waiver may result from acts, as well as from agreements. 
 Thus if there is a condition attached to a lease against its as- 
 signment, the subsequent acceptance of rent from the assignee, 
 or the beginning of an action for rent accruing after the 
 breach, will constitute a waiver of the breach. 53 But mere 
 delay in making the entry will not have the effect of a waiver, 
 unless such apparent acquiescence is sufficient to induce the 
 
 si Gray v. Blanchard, 8 Pick. 284; Stuyvesant v. Mayor of N. Y., 11 
 Paige Ch. 414; 2 Washburn on Real Prop. 17, 18. But where the 
 grantee is ready and willing to comply with a condition for the gran- 
 tor's support and the grantor has voluntarily left the premises, to 
 which the condition was attached, a forfeiture will not be enforced for 
 breach of this condition. Wolcott v. Wolcott (Mich. 1903), 95 N. W. 
 Rep. 740. 
 
 622 Washburn on Real Prop. 19; Co. Lit. 211 b; Andrews v. Senter, 
 32 Me. 397; Gray V. Blanchard, 8 Pick. 284; Hubbard v. Hubbard, 97 
 Mass. 192; Doe v. Gladwin, 6 Q. B. (51 Eng. C. L.) 953; Guild v. 
 Richards, 16 Gray, 326; Doe v. Jones, 5 Exch. 498; Doe v. Peck, 1 B. 
 & Ad. (20 Eng. C. L.) 428; Jackson v. Crysler, 1 Johns. 126; Gluck 
 v. Elkan, 36 Minn. 80. 
 
 03 Hubbard v. Hubbard, 97 Mass. 192; Coon v. Brecket, 2 N. H. 153; 
 Jackson v. Crysler, 1 Johns. 126; Crouch v. Wabash, etc., R. R. Co., 22 
 Mo. App. 315. But it has been held, and perhaps it is the better 
 opinion, that in order that the acceptance of rent may constitute a 
 waiver of forfeiture for non-payment of rent, it must be rent accruing 
 after the breach. Jackson V. Allen, 3 Cow. 220; Hunter v. Osterhout, 
 11 Barb. 33; Price f. Worwood, 4 H. & N. 512; Green's Case, Cro. 
 Eliz. 1; *. c. 1 Leon. 262. See Downes V. Turner, 2 Salk. 597; Duni- 
 por's Case, 4 Rep. 119; a. c. 1 Smith's Ld. Cas. note; Horn v. Peterer, 
 16 Mo. App. 438 ; Silva v. Campbell, 84 Cal. 420. 
 
 281
 
 209 ESTATES UPON CONDITION. [PART I. 
 
 grantee to incur expenses, and the subsequent exercise of 
 the right of entry would in consequence work a legal fraud 
 upon him. Thus, where in a grant to a railroad the condition 
 was, that the road should be finished within a certain time, 
 the grantor stood by and acquiesced in the continuance of the 
 work after the expiration of the time stipulated, the right 
 of entry was held to be waived under the doctrine of estoppel. 
 But, except in special cases like this, only affirmative acts and 
 express agreements by the grantor will have the effect of a 
 waiver. 54 But the waiver of a condition precedent cannot 
 have the effect of passing to the grantee the title of the land. 
 The grantee can under the same deed only acquire the title 
 by the performance of the condition precedent; its perform- 
 ance is not a conveyance. 56 However effective a waiver of en- 
 try for forfeiture may have upon the condition, it would 
 have no effect upon the right of action for the breach of a 
 covenant, which is caused by the same act which constituted 
 a breach of the condition. 56 
 
 209. Equitable relief against forfeiture. As a general 
 proposition, equity will neither relieve against, nor enforce a 
 forfeiture. It simply leaves the parties to their remedies at 
 law. Where the breach is the result of an unlooked-for acci- 
 dent, and where the damages resulting therefrom can be ac- 
 curately estimated by the court, as where the condition calls 
 for the payment of a sum of money at a particular time, it 
 may be a mortgage, or a rent reserved, equity will prevent a 
 
 ."Dudlow v. N. Y. & Harlem R. R., 12 Barb. 440. See Williams v. 
 Dakin, 22 Wend. 209; Jackson v. Crysler, 1 Johns. 126; Sharon Iron Co. 
 t?. City of Erie, 41 Pa. St. 349; Gray v. Blanchard, 8 Pick. 284; Doe 
 V. Galdwin, 6 Q. B. (51 Eng. C. L.) 953; Doe v. Beck. 1 B. & Ad. (20 
 En?. C. L.) 428; D-? r. Jones, 5 Exch. 498; Duffield v. Hue. 129 Pa. 
 St. 94; Younj; r. Gay, 41 La. An. 758. A purchase by the remainder- 
 man, from one of two life tenants, where both .hold upon conditions 
 against alienation, is rrt a waiver of the condition as to the other 
 life tenant. Lewis v. Lewis, 76 Conn. 586, 57 Atl. Rep. 735. 
 
 s Johnson r. Warren (Mich.), 42 N. W. Rep. 74. 
 
 8 Spencer r. Dougherty, 23 111. App. 399. 
 282
 
 CH. X.] ESTATES UPON* CONDITION. 210 
 
 forfeiture and decree, instead thereof, as compensation in 
 damages, the payment of the sum of money, together with 
 interest for the time which has elapsed. 37 But if the condi- 
 tion be some act, collateral to the grant, and one which cannot 
 be estimated in damages, as where the condition is to repair, 
 or against the acquisition of rights of easement by third par- 
 ties; or where the breach is not the result of inevitable acci- 
 dent, but is willfully or negligently committed, equity will 
 not interfere. 58 
 
 210. Estate upon condition distinguished from trusts. It 
 is sometimes difficult in devises, to ascertain whether the tes- 
 tator intended to create an estate upon condition, or one upon 
 trust. If he intended the former, there can be no relief 
 against forfeiture, except as already explained, nor can per- 
 formance of the condition be enforced. But if an estate upon 
 trust was intended, and what appeared to be conditions were 
 directions to trustees, explanatory of what they should do 
 with the estate, a failure to perform would not result in an 
 
 sTQoodtitle v. Holdfast, 2 Strange, 900; Hill v. Barclay, 18 Ves. 56; 
 Stone V. Ellis, 9 Cush. 95; Atkins v. Chilson, 11 Mete. 112; Hancock V. 
 Carlton, 6 Gray, 39; Bethlehem V. Annis, 40 N. H. 34; City Bank V. 
 Smith, 3 Gill & J. 265 ; Skinner V. Dayton, 2 Johns. Ch. 526 ; Warner v. 
 Bennett, 31 Conn. 478; Williams v. Angell, 7 R. I. 152; Beaty v. 
 Ha r key, 2 Smed. & M. 563. 
 
 ss Hill v. Barclay, 18 Ves. 56; Descarlett v. Dennett, 9 Mod. 22; 
 Elliott v. Turner, 13 Sim. Ch. 485; Wafer v. Mocato, 9 Mod. 112; 
 Reynolds v. Pitt, 2 Price, 212; Hancock v. Carlton, 6 Gray, 39; Henry 
 V. Tupper, 29 Vt. 56; Skinner V. Dayton, 2 Johns. Ch. 526; Livingston 
 V. Thompkins, 4 Johns. Ch. 431; Baxter v. Lansing, 7 Paige Ch. 350; 
 City Bank v. Smith, 3 Gill & J. 265. Even when equity will not re- 
 lieve against it, it will not enforce a forfeiture, Bishop. Pr. Eq. Sec. 
 181; Atlas Bank . Nahant Bank, 3 Mete. (Mass.), 582; Livinston f. 
 Thompkins, 4 Johns. Ch. 415; Meigs App. 62 Pa. St. 28; 1 Pom. Eq. 
 .Tur. 459 ; Toledo R. R. V. St. L. & C. R. R., 208 111. 623, 70 N. E. Rep. 
 71.-,; Moberly V. Trenton. 181 Mo. 637, 81 S. W. Rep. 169. A suit for 
 relief from forfeiture, estops the plaintiff from denying there was a for- 
 feiture at law. Gordon v. Richardson, 185 Mass. 492, 70 N. E. Rep. 
 1027. 
 
 283
 
 211 ESTATES UPON CONDITION. [PART I. 
 
 absolute forfeiture, but a court of equity would interpose in 
 behalf of the cestui que trust and enforce a performance of 
 those acts, which were intended for his benefit. The conclu- 
 sion in every case depends upon the ascertained intention of 
 the testator, and the devise will in proper cases be declared 
 upon trust, instead of upon condition, though the words, "pro- 
 vided," "on condition," etc., are used in that connection. 50 
 
 211. Same From estates upon limitation and conditional 
 limitations. An estate upon limitation is one which is made 
 to determine absolutely upon the happening of some future 
 event as an estate to A., so long as she remains a widow. 
 The technical words generally used to create a limitation, are 
 conjunctions relating to time, such as during, while, so long 
 as, until, etc. But these words are not absolutely necessary; 
 for where it is necessary, in order to carry out the in- 
 tent of the grantor, to construe an estate to be a limita- 
 tion, it will be done, even though words, ordinarily used 
 in the creation of an estate upon condition, appear in 
 their stead. 60 An estate upon limitation differs from one 
 upon condition in this, that the estate is determined ipso 
 facto by the happening of the contingency, and does not 
 require any entry by the grantor in order to defeat it. 01 A 
 
 sStanly v. Colt, 5 Wall (U. S.) 165. See Linsee v. Mixer, 101 
 Mass. 512; Dorr v. Hallaran, 76. 534; Smith r. Brown, 66 Tex. 543; 1 
 S. W. 573; Miller V. Board of Supervisors (Miss.), 7 So. Rep. 429; 
 Curtis v. Board of Education, 43 Kan. 138, 23 Pac. Rep. 98; Watterson 
 V. Ury, 5 Ohio C. C. 347. For a condition held to be enforceable against 
 a beneficiary, who took with knowledge thereof, see Medical Est. of N. 
 Y. V. N. Y. University, 78 N. Y. S. 673, 76 App. Div. 48. 
 
 so 1 Prest. Est. 129; Co. Lit. 203 b; Mary Portington's Case, 10 Rep. 
 42; Chapin r. Harris, 8 Allen, 594; Ashley f. Warner, 11 Gray, 43; 
 Owen r. Fields, 102 Mass. 105; Miller v. Levi, 44 N. Y. 489; Henderson 
 r. Hunter, 59 Pa. St. 340; Herrick's Estate, 59 Hun, 616. 
 
 i 2 Bla. Com. 155; 1 Prest. Est. 456; 2 Washburn on Real Prop 23, 
 26; Fifty Associates v. Rowland, 11 Mete. 102; Proprietors, etc., V. 
 Grant, 3 Gray, 142; Attorney-General v. Merrimack Co., 14 Gray, 612; 
 
 284 ,
 
 ESTATES UPON CONDITION. 211 
 
 conditional limitation is an estate limited to take effect upon 
 the happening of the contingency, and which takes the place 
 of the estate which is determined by such contingency. Some 
 authors, among others, Mr. Washburn, have used the terms 
 conditional limitations and limitations interchangeably, re- 
 ferring in both instances to the estate which is determined 
 by the happening of the event. 62 But it appears to be the 
 better method to apply the term conditional limitation to the 
 estate which takes effect, and limitation to the estate which is 
 determined. 03 A conditional limitation is an estate limited 
 to take effect after the determination of an estate, which in 
 the absence of a limitation over would have been an estate 
 upon condition. Strictly speaking, a conditional limitation 
 cannot be limited after an estate upon limitation, except where 
 the contingency which constitutes the limitation, is not. sure 
 to happen and the estate is a fee upon limitation. Thus in 
 a grant to A. during widowhood, and upon her marriage to 
 B., A.'s estate would be an estate upon limitation, and con- 
 sequently B.'s estate would be a good common-law re- 
 mainder. 64 Using the term conditional limitation as indi- 
 cating a future estate which is to take effect in derogation 
 of a preceding limitation, it may be stated here in general 
 terms, to be more clearly explained in subsequent pages, that 
 
 Owen V. Field, 102 Mass. 105; Miller V. Levi, 44 N. Y. 489; Wheeler 
 r. Walker, 2 Conn. 196; Henderson V. Huntington, 59 Pa. St. 340. 
 
 22 Washburn on Real Prop. 23, 26. 
 
 os Mr. Washburn quotes from Watkins on Conveyancing, to this 
 effect: "Between a condition and a conditional limitation there is this 
 difference: a condition respects a destruction and determination of an 
 estate; a conditional limitation relates to the commencement of a new 
 one. A condition brings the estate back to the grantor or his heirs; 
 a conditional limitation carries it over to a stranger." Watkins, Con- 
 vey. 204. There can be no limitation of a fee, after a fee, in North 
 Carolina, and where such a provision is attempted the grantee of the 
 estate, takes a fee-simple estate. Gray v. Hawkins, 133 N. C. 1, 45 
 S. E. Rep. 363. 
 
 2 Washburn on Real Prop. 563; Fearne Cont. Rem. 5, 10. See 
 post, Sec. 307. 
 
 285
 
 211 ESTATES UPON CONDITION. [PART I. 
 
 it was unknown to the common law. The only common-law 
 future estate, which can be created by the same deed with 
 a prior limitation, is a remainder, and as a remainder cannot 
 be limited, which takes effect in derogation of the preceding 
 estate, conditional limitations are not recognized by the com- 
 mon law. They can only be created as a shifting use, or an 
 executory devise. 65 
 
 52 Washburn on Real Prop. 26, 28; 4 Kent's Com. 128; 1 Prest. Est. 
 50. See post, Sees. 298, 313, 391, 392. The common law rule that a 
 conveyance vesting title in one person on the death of another, " with- 
 out issue of his body," at his death, under most statutes is changed so 
 that the words of limitation are held to mean, " issue living at his 
 death " and instead of a fee tail, at common law, the grantee takes 
 a fee-simple, and the limitation over is conditional on the death of the 
 first taker without living heirs. Middlesex Bank V. Field (Miss. 1904), 
 37 So. Rep. 139; Yocum v. Siler, 160 Mo. 297; Black v. Webb (Ark. 
 1904), 80 S. W. Rep. 367. 
 286
 
 CHAPTER XL 
 
 MORTGAGES. 
 
 SECTION I. Nature and Classification of Mortgages. 
 
 II. The Rights and Liabilities of Mortgagors and 
 
 Mortgagees. 
 
 III. Remedies and Remedial Rights incident to a 
 Mortgage. 
 
 SECTION I. 
 
 NATURE AND CLASSIFICATION OF MORTGAGES. 
 
 SECTION 212. Definition. 
 
 213. Mortgages by deposit of title deeds. 
 
 214. Continued Notice to subsequent purchasers. 
 
 215. Continued Their recognition in this country. 
 
 216. Continued Foreclosure. 
 
 217. Vendor's lien. 
 
 218. Continued Discharge or waiver of the lien. 
 
 219. Continued In whose favor raised. 
 
 220. Vendee's lien. 
 
 221. Enforcement of vendor's and vendee's liens. 
 
 222. Mortgage at common law. 
 
 223. Vivum vadium. 
 
 224. Welsh mortgage. 
 
 225. Equity of redemption. 
 
 226. The mortgage in equity. 
 
 227. Influence of equity upon the law. 
 
 228. The form of a mortgage. 
 
 229. Execution of the defeasance. 
 
 230. Form of defeasance. 
 
 231. Agrements to repurchase. 
 
 232. The defeasance clause in equity. 
 
 233. The admissibility of parol evidence. 
 
 234. Contemporaneous agreements. 
 
 235. Subsequent agreements. 
 
 287
 
 . 213 MORTGAGES. [PART I. 
 
 236. The mortgage debt. 
 
 237. Mortgages for the support of the mortgagee. 
 
 238. What may be mortgaged. 
 
 212. Definition. A mortgage is an interest in lands, 
 given to secure the payment of a sum of money or money's 
 equivalent. It incumbers the title of the land and enables. 
 the creditor or obligee to satisfy his claim by a sale of the 
 land, or by a forfeiture of the land to the mortgagee. Be- 
 fore explaining the character and incidents of the common- 
 law mortgage, which will constitute the principal subject of 
 the present chapter, reference will be made to several kinds 
 of incumbrances upon land, which, although generally called 
 mortgages, are not strictly such. The first of these is the 
 
 213. Mortgage by deposit of title deeds. This is an an- 
 cient security for debt, which at one time was in general use 
 in England, and even now is employed there to some extent. 
 The deposit of the title deeds of a tract of land with the 
 creditor secured to him in equity a lien upon the land for 
 the amount of the debt. It was looked upon in equity as an 
 agreement to execute a mortgage which would be enforced 
 against the depositor and all other persons claiming under 
 him, except subsequent purchasers and incumbrancers for 
 value and without notice. 1 Although it has been strongly 
 objected to, as violating the Statute of Frauds, it is now 
 definitely settled in England that the mortgage by deposit of 
 title deeds does not come within the operation of the statute. 2 
 
 i Story's Eq. Jur., Sec. 1020 ; 2 Washburn on Real Prop. 83 ; 4 Kent's 
 Com. 150, 115; Russell v. Russell, 1 Bro. C. C. 2G9; Ex parte Lang- 
 stone, 17 Ves. 230; Pain v. Smith, 2 Myl. & K. 417; Mandeville V. 
 Welch, 5 Wheat. 277; Roberts v. Craft, 24 Beav. 223; Edge v. Worth- 
 ington, Cox, 211; Ex parte Corning, 9 Ves. Jr. 115; Carey v. Rawson, 
 8 Mass. 159; Jarvis v. Butcher, 16 Wis. 307. 
 
 2Whitebread, ex parte, 19 Ves. 209; Haigh, ex parte, 11 Ves. 403; 
 Ex parte Hooper, 19 Ves. 477; Norris v. Wilkinson, 19 Ves. 192; Rus- 
 sell v. Russell, 1 Bro. C. C. 269. In Pennsylvania, a written agree- 
 ment must accompany the deposit of the title deeds, in order that the 
 transaction may create a mortgage. Luch's Appeal, 44 Pa. St. 519; 
 288
 
 OH. XI.] MORTGAGES. 213 
 
 The mere possession by the creditor of. the debtor's muni- 
 ments of title will not raise for the former a lien upon the 
 land. They must have been deposited with him with the ex- 
 press intention of providing a lien, in order that the pos- 
 session may have that eft'ect. 3 But it is not necessary that 
 all the title deeds in the chain of title should be deposited. 
 A tingle title deed would be sufficient as against the de- 
 positor, and it would only be invalid as to those, who were 
 fairly misled by the fact that the mortgagor or depositor 
 was in possession of the other deed. 4 And as against the 
 mortgagor and all others claiming under him with notice, 
 the mere agreement to deposit the title-deeds as security 
 would suffice to make the debt an equitable charge upon the 
 estate, if it be evidenced by some writing. 5 
 
 Edwards v. Trumbull, 50 Pa. St. 509. "The plaintiffs brought suit 
 on an agreement reciting that defendants had assigned to them a 
 mortgage and certain policies of insurance to secure a loan, with the 
 agreement on plaintiff's pait to reassign, if the loan was paid within a 
 year. Defendants authorized plaintiffs, if the loan was not so paid, to 
 realize a surrender value of the policies, and sell the mortgage, the pro- 
 ceeds to be applied on the debt ; and, if the sum realized was insuf- 
 ficient to pay the debt in full ; defendants agreed to pay any deficiency. 
 It was held that plaintiffs could not sue to recover the full amount 
 without first attempting to realize on the collateral." Klee v. Trum- 
 bull (Pa.), CO Atl. Rep. 157. 
 
 sNorris v. Wilkinson, 12 Ves. 162; Bozon V. Williams, 3 Y. & J. 
 150; James V. Rice, 23 Eng. L. & E. 567; Chapman v. Chapman, 3 
 Eng. L. & E. 70; 8. c. 13 Beav. 308; Ex parte Bruce, 1 Rose, 374; Ex 
 parte Wright, 19 Ves. 258; Ex parte Langston, 17 Ves. 227; Lucas . 
 Darren, 7 Taunt. 278; Mandeville V. Welch, 5 Wheat. 277; Story's Eq. 
 Jur., Sec. 1020. If the intention is declared by a memorandum in 
 writing, it cannot be controlled by parol evidence. Ex parte Coombe, 
 17 Yes. 369; Baynard v. Woolley, 20 Beav. 583. 
 
 * Ex parte Chippendale, 2 Mont. & A. 299; Ex parte Wetherall, 11 
 Ves. 398; Lacon v. Allen, 3 Drew, 582; Roberts v. Crofty, 24 Beav. 
 253 ; 8. c. De G. & J. 1. 
 
 o Edwards, ex parte, 1 Deac. 611, 4 Kent's Com. 151. An assign- 
 ment of a lease, to secure a debt, is held to be a mortgage, in Massa- 
 chusetts. Providence Steamboat Co. r. Fall River I. Co., 187 Mass. 45, 72 
 N. E. Rep. 338. 
 
 19 289
 
 215 MORTGAGES. [p\RT I. 
 
 214. Continued Notice to subsequent purchasers. If 
 the subsequent purchaser for value has received no notice 
 of the existence of this equitable mortgage, it cannot be en- 
 forced against him and the land in his hands. What will 
 be sufficient notice to such a purchaser would depend upon 
 the circumstances of each particular case. In England, 
 where there is no registration law, and the purchaser is ac- 
 customed to depend upon the original title deeds in inves- 
 tigating the title to lands, the absence of these deeds or of 
 any of them would constitute sufficient notice to put the 
 purchaser on his inquiry. But the burden of proof is on 
 the equitable mortgagee to show that the purchaser has re- 
 ceived notice of the mortgage. 6 In this country, however, 
 where all deeds of conveyance are required to be recorded, 
 in order to give constructive notice to subsequent purchasers, 
 actual notice of the deposit of the deeds must be brought to 
 such purchasers, in order to bind the land in their hands. 
 The purchaser in this country is not required to look be- 
 yond the record for the evidences of title. 7 
 
 215. Continued Their recognition in this country. 
 The equitable mortgage by deposit of title deeds is recog- 
 nized in some of the States of this country, but in view of 
 the general prevalence of the recording law, it is at best a 
 very inefficacious kind of security. It can never be relied 
 upon; and is rarely, if ever at the present day, met with in 
 practice. Its value as a security is destroyed, as soon as 
 the land has been sold or mortgaged to one having no actual 
 
 Herrick v. Atwood, 25 Beav. 212; Coyler v. Finch, 5 H. L. Cas. 924; 
 Ex parte Hardy, 2 Deac. & C. 363; Hiern r. Mill, 13 Ves. 114; Hewitt 
 V. Loosemore, 9 Eng. L. & E. 35; Story's Eq. Jur., Sec. 1020; Jones, 
 Mortg., Sec. 179; Ex parte Whitebread, 19 Ves. 209; Ex parte Wright, 
 19 Ves. 255. 
 
 7 Story's Eq. Jur., Sec. 1020; Jones, Mortg., Sec. 179; Hall v. McDuff, 
 24 Me. 311; Whitworth v. Gangain, 3 Hare 416; Berry r. Mutual Ins. 
 Co., 2 Johns. Ch. 604; Luch's Appeal, 44 Pa. St. 522; Edwards v. 
 Trumbull, 50 Pa. St. 612; Probasco V. Johnson, 2 Disney 96. 
 290
 
 CH. XI.] MORTGAGES. 216 
 
 notice of the deposit. And it being a purely equitable in- 
 terest, not even an equitable estate, the mortgagee cannot 
 have any instrument of notice recorded for the purpose of 
 giving constructive notice of its existence. The mortgage 
 is, however, recognized in Maine, Rhode Island, New York, 
 New Jersey, South Carolina, Georgia, Wisconsin, and in the 
 United States Courts. 8 While in Pennsylvania, Vermont, 
 Kentucky, Missouri, Ohio and Tennessee, the doctrine has 
 been repudiated. 9 
 
 216. Continued Foreclosure. Since the mortgage by 
 deposit of title deeds is only an equitable lien, it can be en- 
 forced only in a court of equity, and it is a matter of doubt 
 in the English courts, whether the decree should be for fore- 
 closure, or simply direct a sale of the premises, and the ap- 
 
 s Hall r. McDuflf, 24 Me. 311; Hackett v. Heynolds, 4 R. I. 512; Rock- 
 well V. Hobby, 2 Sandf. Ch. 9; Stoddard v. Hart, 23 N. Y. 561; Mounce 
 v. Byars, 16 Ga. 469; Williams v. Stratton, 10 Smed. & M. 418; Welsh 
 f. Usher, 2 Hill (S. C.) 16G-170; Mandeville v. Welch, 5 Wheat. 277; 
 Rockwell V. Hobby, 2 Sandf. Ch. 9; Griffin V. Griffin, 18 N. J. Eq. 104; 
 Welsh v. Usher, 2 Hill Ch. 167, 170, per Harper J. ; Williams v. Strut- 
 ton, 10 Sm. & Mar. 418, 426; First Nat. Bk. v. Caldwell, 4 Dillon, 314. 
 
 Shitz v. Dieffenback, 3 Pa. St. 233; Strauss' Appeal, 49 Pa. St. 258; 
 Van Meter V. McFaddin, 8 B. Mon. 438; Meador v. Meador, 3 Heisk. 
 562; Gothard v. Flynn, 25 Miss. 58. But compare contra, Williams 
 V. Stratton, 10 Sm. & Mar. 418; Thomas' Appeal, 30 Pa. St. 378; Ed- 
 wards' Exrs. v. Trumbull, 50 Pa. St. 509; Bowers v. Oyster, 3 P. & W. 
 239. But in Pennsylvania, if the deposit is accompanied by an instru- 
 ment, declaring the purpose of the deposit it will be a good, equitable 
 mortgage. Luch's Appeal, 44 Pa. St. 522 ; Edwards v. Trumbull, 56 
 Pa. St. 512. For validity of assignment of equitable mortgage from 
 deposit of school-land certificates, see Mowrey r. Wood, 12 Wis. 413. 
 And generally, on this subject, see 10 Am. & Eng. Dec. in Equity, p. 
 665. The doctrine that a deposit of title deeds constitutes a mortgage 
 is equity, is repudiated, in Missouri, as it is asserted that such a doc- 
 trine would be in conflict with the universally recognized system of 
 publii- registration and the statute of frauds. Hackett V. Watts, 138 
 Mo. 502. See also, Meador f. Meador, 3 Heisk. (Tenn.) 562; Gothnrd 
 r. Flynn, 25 Miss. 58; Shitz v. Diffenbach, 3 Pa. St. 233; Van Meter . 
 McFaddin, 8 B. Mon. (Ky. ) 438. For recognition of equitable mort- 
 gage in New York, see, Matthew v Dernonnell, 89 N. Y. S. 493. 
 
 291
 
 217 MORTGAGES. [PART I. 
 
 plication of the proceeds to the liquidation of the debt. But 
 the later English cases hold that the mortgagee of such a 
 mortgage has the same rights of foreclosure as any other 
 mortgagee. 10 
 
 ? 217. Vendor's lien. This is also an equitable lien recog- 
 nized in favor of the vendor as a security for the purchase- 
 money. It is founded on the equitable theory that, until the 
 payment of the purchase-money, the vendee holds the land 
 as trustee of the vendor for the purpose of a security. No 
 agreement is necessary for its creation ; it is presumed to 
 exist, until the contrary is shown. 11 This lien has been gen- 
 erally recognized in the States of tliis country, 12 but it has 
 
 10 Backhouse v. Charlton. L. R. 8 Ch. D. 444; Carter v. Wake, L. R. 
 4 Ch. D. 605; James v. James, L. R. 16 Eq. 153; Pryce r. Bury, L. R. 
 16 Eq. 153 n. ; Adams Eq. 125; Pain v. Smith, 2 M. & K. 417;'Brockle- 
 hurst r. Jessop, 7 Sim. 438; Price v. Carver, 3 M. & C. 157; Lister v. 
 Turner, 5 Hare 281; Tucl.ley v. Thompson, 1 Johns. & H. 126; James 
 r. James, L. R. 16 Eq. 153; Redmagne v. Forster, L. R. 4 Eq. 467. In 
 Jarvis r. Dutcher, 16 Wis. 307, it was held that the decree should be for 
 a sale of the premises. See to the same effect, Hackett v. Reynolds, 4 
 R. I. 512; Mowry v. Wood, 12 Wis. 413. 
 
 11 Walker Am. Law, 366; Mackreth v. Symmons, 15 Ves. 339; Chap- 
 man r. Tanner, 1 Vern. 267; Blackburn V. Gregson, 1 Bro. C. C. 420; 
 Payne r. Atterbury, Harr. (Mich.) 414; Warren v. Fenn, 28 Barb. 334; 
 Wilson r. Lyon, 51 111. 166; Truebody v. Jacobson, 2 Cal. 260; Dodge 
 r. Evans. 43 Miss. 570; Schnebly V. Ragan, 7 Gill & J. 120; Ahrcnd 
 r. Odiorne, 118 Mass. 266; Cowfelt v. Bovver, 7 Serg. & R. 64; Story's 
 Eq. Jr., Sec. 1217; Moreton v. Harrison, 1 Bland. Ch. 491; Iglehart V. 
 Armiger. 1 Bland. Ch. 519, 524, 525, 2 Story's Eq. Jur., Sees. 1218 
 et seq. 1217; SnelPs Eq. 136 (5 ed.) ; Perry on Trusts, Sees. 231, 232; 
 Ringgold r. Bryan, 3 Md. Ch. 488. 
 
 12 In Alabama, Arkansas, California, Colorado, District of Columbia, 
 Florida, Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minne- 
 sota, Mississippi, Missouri, New Jersey, New York, Ohio, Tennessee, 
 Texas, Wisconsin. Haley v. Bennett, 5 Port. 452; Pylant v. Reeves, 53 
 Ala. 132; Thames v. Caldwell, 60 Id. 644; Blankhead r. Owen, 60 Id. 
 457; Bizzell v. Nix, 60 Id. 281; Roper v. McCook, 7 Ala. 318; Thurman 
 r. Stoddard, 63 Id. 336; Chapman r. Lee, 64 Id. 483; Carver v. Eads, 
 fir, ],]. 100; Shall v. Ciscoe, 18 Ark. 142; Harris V. Hanie, 37 Id. 348; 
 Salmon r. Hoffman, 2 Cal. 138; Gallagher v. Mars, 50 Id. 23; Wells 
 
 292
 
 CH. XI.] MORTGAGES. 217 
 
 been denied or left in doubt in some. 13 The decisions differ 
 
 V. Barter, 56 Id. 342; Francis r. Wells, 2 Col. 660; Ford r. Smith, 
 1 McArthur 592; Bradford v. Marvin, 2 Flor. 463; Woods r. Bailey, 
 3 Id. 41; Keith v. Homer, 42 111. 524; Henson r. Westcott, 82 Id. 224; 
 Small v. Stagg, 95 Id. 39; Manning v. Frazier, 96 Id. 279; Yayan r. 
 Shriner, 26 Ind. 364; Anderson v. Donnell, 66 Id. 150; Higgins r. Ken- 
 dall, 73 Id. 522 ; Richards v. McPherson, 74 Id. 158 ; Lagow r. Badollet, 
 
 1 Blackf. 416; Deibler r. Barwick, 4 Id. 339; Tinsley r. Tinsley, 52 Iowa 
 14; Stuart r. Harrison, 52 Id. 511; Tiernan r. Thurman. 14 B. Mon. 
 277, 284; Gritton v. McDonald, 3 Mete. 252; Burrus r. Roulhac's Admx., 
 
 2 Bush 39 ; Phillips v. Skinner, 6 Bush 662 ; Fowler r. Heirs of Rust. 2 
 A. K. Marsh 284; Thornton V. Knox's Exr., 6 B. Mon. 74; Muir v. 
 Cross, 10" Id. 277; Magruder v. Peter, 11 Gill & J. 217; Repp r. Repp, 
 12 Id. 341; Carr v. Hobbs, 11 Md. 285; Hummer i\ Schott, 21 Id. 307;, 
 Moreton r. Harrison, 1 Bland Ch. 491; White v. Casenave's Heirs, 1 
 Har. & J. 106; Ghiselin v. Fergusson, 4 Id. 522; Pratt r. Vamvyck's 
 Exrs., 6 Gill & J. 495; Payne r. A very, 21 Mich. 524; Palmer r. Ster- 
 ling, 41 Id. 218; Hiscock r. Norton, 42 Id. 320; Daughaday r. Paine, 
 6 Minn. 306; Dawson v. Girard L. Ins. Co., 27 Minn. 411; Dodge u. 
 Evans, 43 Miss. 570; Perkins v. Gibson, 51 Miss. 699; Tucker r. Hadley, 
 52 Id. 414; McLain V. Thompson, 52 Id. 418; Walton v. Hargroves, 42 
 Id. 18; Stewart v. Ives, 1 Sm. & Mar. 197; March V. Turner, 4 Mo. 
 253; Stevens r. Rainwater, 4 Mo. App. 292; Davenport r. Murray, 68 
 Mo. 198; Pearl r. Hervey, 70 Id. 160; Armstrong v. Ross, 20 N. J. Eq. 
 109; Warren r. Fenn, 28 Barb. 333; Dubois v. Hull, 43 Id. 26; Smith 
 r. Smith, 9 Abb. Pr. (N. s.) 420; Chase r. Peck, 21 N. Y. 581; Hazel- 
 tine r. Moore, 21 Hun 355; Stafford r. Van Rensselaer, 9 Cow. 316; 
 White v. Williams, 1 Paige 502; Mayham r. Coombs, 14 Ohio 428; Xiel 
 V. Kinney, 11 Ohio St. 58; Pease V. Kelly, 3 Oreg. 417; Brown tv 
 Vanlier, 7 Humph. 239; Ellis V. Temple, 4 Coldw. 315; Choate V. 
 Tighe, 10 Heisk. 621; Eskridge r. Mc-Clure, 2 Yerg. 84; Burgess v. 
 Millican, 50 Tex. 397; Waldrom V. Zacharie, 54 Id. 503; Robinson V. 
 MeWhirter, 52 Id. 201; Willard v. Reas, 26 Wis. 540; Madden -'. 
 Barnes, 45 Id. 135; Lavender t;. Abbott, 30 Ark. 172; Neal r. Speigle, 
 33 Id. 63; Mayes v. Hendry, 33 Id. 240; English r. Russell, Hempst. 35; 
 Kent v. Gerhard, 12 R. I. 92. The vendor's lien for purchase money 
 has been recognized in the following late cases: Borror v. Carrier (Ind,. 
 1905), 73 X. E. Rep. 123; Acree r. Stone (Ala. 1904), 37 So. Rep. 934; 
 Dickenson r. Duckworth (Ark. 1905), 85 S. W. Rep. 82; Zieschang ,. 
 Helmke (Tex. 1904), 84 S. W. Rep. 436; McXeill v. Cage, 85 S. \V. 
 Rep. 57; Wilson v. Moore (Tex. 1904), 85 S. W. Rep. 25; Ford '. 
 Azill (Ky. 1905), 85 S. W. Rep. 217; Bryson V. Collmer (Ind. 1004), 
 71 N. E. Rep. 229. 
 
 is Denied and repudiated in Kansas, Maine, Massachusetts. Xorth 
 
 293
 
 217 MORTGAGES. [PART I. 
 
 as to details, but agree in respect to the general features of 
 such a lien. The vendor's lien is binding upon the vendee, 
 and all persons claiming under him who had notice of the 
 lien or who are not purchasers for value. A volunteer to 
 whom the land is conveyed without consideration, a widow 
 with her dower, and the heirs and devisees, cannot plead the 
 
 Carolina, Pennsylvania and South Carolina. Simpson v. Mundee, 3 
 Kan. 172; Greene r. Barbard, 18 Id. 518; Gilman V. Brown, 1 Mason 
 191, 192, 210; Philbrook v. Delano, 29 Me. 410, 415; Ahrend v. Odi- 
 orne, 118 Mass. 216; Wright v. Dame, 5 Mete. 603. See, Mast v. Raper, 
 81 N. C. 330; McKay v. Gillman, 65 Id. 130; Zentmeyer v. Mittower, 
 5 Pa. St. 403; Kauffelt v. Bower, 7 S. & R. 64; Semple v. Burd, 7 Id. 
 286; Megargel r. Saul, 3 Whart. 19; Bear v. Whistler, 7 Watts. 144, 
 147; Cook V. Trimble, 9 Id. 15; Hepburn v. Snyder, 3 Barr 72; Sprig- 
 ner v. Walters, 34 Pa. St. 328 ; Heist v. Baker, 49 Id. 99 ; Strauss' Ap- 
 peal, 49 Id. 353; Wragg v. Comptroller-Gen., 2 Desaus 509, 520. Left 
 in doubt in Connecticut, New Hampshire and Rhode Island. W T atson v. 
 Wells, 5 Conn. 468; Chapman v. Beardsley, 31 Conn. 115; Buntin t/. 
 French, 16 N. H. 592; Arlin v. Brown, 44 Id. 102; Perry v. Grant, 10 
 R. I. 334; Kent v. Gerhart. 12 R. I. 92. While in Georgia, Vermont, 
 Virginia and West Virginia, although upheld judicially, it is now abol- 
 ished by statute, except that in the last two States, it may be reserved 
 on the face of the deed of conveyance. Ga. Code 1873, Sec. 1997 ; 
 Jones V. Jones, 56 Ga. 325; but see Drinkwater v. Moreman, 61 Id. 395; 
 Still v. Mayor, etc., 27 Id. 502, 504; Stat. Laws of 1851, Ch. 47, Gen. 
 Stat. (1862), Ch. 65, Sec. 33; Manly v. Slason, 21 Vt. 271, per Redfield, 
 C. J., Code Va. 1873, Ch. 115, Sec. 1; Wade V. Greenwood, 2 Robt. 475; 
 Yancey v. Mauck, 15 Gratt. 300; Cole V. Scot, 2 Wash. 141; Tompkins 
 V. Mitchell, 2 Rand. 428; Redford v. Gibson, 12 Leigh 338; Kyles V. 
 Tait's Admr., 6 Gratt. 44, W. Va. Code 1870, Ch. 75, Sec. 1 ; Hempfield 
 R. R. v. Thornburg, 1 W. Va. 2C1. See also, Bailey r. Greenlcaf. 7 
 Wheat. 46; Chilton v. Briaden, 2 Black 458; McLean V. McLean, 10 Pet. 
 625; Gilman v. Brown, 4 Wheat. 254; s. c. 1 Mason 191; McLearn v. 
 W'allace, 10 Pet. 625, 640; Galloway V. Finley, 12 Id. 264; Bush v. 
 Marshall, 6 How. (U. S.) 284; Chilton t. Braiden's Admx., 2 Black 
 458; Cordova r. Hood, 17 Wall. 1. 5. A vendee in possession of land 
 holds it charged with an equitable lien for the unpaid purchase price, 
 in Indiana. Borror v. Carrier (1905), 73 N. E. Rep. 123. The exist- 
 ence of the vendor's lien does not depend upon the transfer of a perfect 
 legal title, but any conveyance which is affected is sufficient to create a 
 lien for the unpaid purchase price. Mully r. Karroll (Ind. 1903), 68 
 N. E. Rep. 689; Halvorsen v. Halvorsen, 97 N. W. Rep 494. 
 294
 
 CH. XI.] MORTGAGES. 217 
 
 want of notice as a defense. 14 The decisions, however, are 
 not uniform in determining to what extent the vendor's 
 lien will be enforced against creditors of the purchaser, who 
 are not charged with notice. It is certain that it will pre- 
 vail against an assignment for the benefit of creditors, if the 
 vendor enforces his lien by filing a bill in equity, before the 
 assignee executes the trust. 15 But where the conveyance is 
 direct to the creditor, or the land is attached under levy of 
 execution issued upon a judgment against the vendee, the 
 courts generally hold that the lien will not prevail. 16 It is 
 
 "Pintard f. Goodloe, 1 Hempst. 527; Webb v. Robinson, 14 Ga. 16; 
 Garson r. Green, 1 Johns. Ch. 308; Upshaw v. Hargrove, 8 Smed. & 
 M. 286; Crane v. Palmer, 8 Blackf. 12; Williams f. Wood, 1 Humph. 
 408; Besland f. Hewitt, 11 Smed. & M. 164; Ellicott v. Welch, 2 Bland 
 242; Warner v. Van Alstyne, 3 Paige Ch. 513; Newton v. McLean, 41 
 Barb. 285; Cole r. Scott, 2 Wash. (Va.) 141; Bayley v. Greenleaf, 7 
 Wheat. 46; Duval r. Bibb, 4 Hen. & M. 113; Shirley f. Sugar Refin. 
 Co., 2 Edw. Ch. 505, 1 Eq. Lead. Cas. 477-481; Graves v. Coutant, 31 
 N. J. Eq. 763; Simpson v. McAllister, 56 Ala. 228; Stafford v. Van 
 Rensselaer, 9 Cow. 316; Magruder v. Peter, 11 Gill & J. 217; Tucker v. 
 Hadley, 52 Miss. 414; McLain v. Thompson, 52 Id. 418; Pylant v. 
 Reeves, 53 Ala. 132; Carver v. Eads, 65 Id. 190; Higgins r. Kendall, 
 73 Ind. 522; Mast v. Raper, 81 N. C. 330; Whetsel v. Roberts, 31 Ohio 
 St. 503; Swan V. Benson, 31 Ark. 728; Dagger v. Taylor, 60 Ala. 504; 
 Burgess v. Green, 64 Id. 509 ; Thurman V. Stoddard, 63 Id. 336 ; Rus- 
 sell v. Dodson, 6 Baxt. 16; Robinson V. McWhirter, 52 Tex. 201; Dug- 
 ger v. Taylor, 60 Ala. 504; Fisk r. Potter, 2 Abb. App. Dec. 138. The 
 vendor's lien is generally good against a married woman's dower in- 
 terest (Bryson r. Collmer (Ind. 1904), 71 N. E. Rep. 229), and all 
 others, except bona fide purchasers. Bryson V. Collmer, supra; Flana- 
 gan Est. v. Land Co. (Ore. 1904), 77 Pac. Rep. 485. 
 
 is Brown v. Vanlier, 7 Humph. 239 ; Shirley V. Sugar Refinery, 2 
 Edw. Ch. 505; Repp r. Repp, 12 Gill & J. 341; Truebody v. Jacol.snn, 
 2 Cal. 269; Pearce r. Foreman, 29 Ark. 563; Green v. Demoss, 10 
 Humph. 371; Walton f. Hargroves, 42 Miss. 18; Warren v. Fenn, 28 
 Barb. 333; Corlies r. Rowland, 26 X. J. Eq. 311; Bowles v. Rogers, 6 
 Ves. 95. 
 
 10 Bayley v. Greenleaf, 7 Wheat. 46; Aldridge r. Dunn, 7 Blackf. 249; 
 Taylor v. Baldwin, 10 Barb. 626; Gaun v. Chester, 5 Yerg. 205; Rob- 
 erts v. Rose, 2 Humph. 145; Roberts v. Salisbury, 3 Gill & J. 425; Cook 
 v. Banker, 50 N. Y. 655; Johnson v. Cawthorne, 1 Dev. & B. Eq. 32; 
 
 295
 
 5 217 MORTGAGES. [PART I. 
 
 also very doubtful whether a subsequent judgment creditor 
 of the grantee can claim priority for his lien over the pur- 
 chased land, or whether the grantor's lien can be enforced 
 against such judgment creditor. The courts differ on this 
 question, some holding that the judgment-lien has priority, 17 
 while other courts give priority to the grantor's lien. 18 In 
 respect to what constitutes notice of the vendor's lien, it 
 may be stated that any notice, which is sufficient to put a 
 reasonable man upon his inquiry will charge the purchaser 
 with knowledge of the existence of the lien. Thus the ven- 
 dor's possession, or a recital in the deed that the consideration 
 has not been paid, would be sufficient notice to bind the 
 land in the purchaser's hands. 19 
 
 Adams r. Buchanan, 49 Mo. 64; Allen v. Loring, 34 Iowa 499; Porter 
 V. City of Dubuque, 20 Iowa 440. 
 
 iTHulett v. Whipple, 58 Barb. 224; Cook v. Kraft, 3 Lans. 512; 
 Johnson v. Cawthorne, 1 Dev. & Bat. Eq. 32; Roberts v. Rose, 2 
 Humph. 145, 147; Gann v. Chester, 5 Yerg. 205; Allen v. Loring, 34 
 Iowa 499; Dawson r. Girard L. Ins. Co., 27 Minn. 411; Bayley v. 
 Greenleaf, 7 Wheat. 46; Cook v. Banker, 50 N. Y. 655; Robinson v. 
 Williams, 22 Id. 380. When the existence of the lien appears from the 
 recorded deed of the vendee, a subsequent purchaser is bound by it, the 
 same as the original purchaser. North v. Rogers (Ky. 1904), 78 S. W. 
 Rep. 165. But see, Fellows v. King, 78 S. W. Rep. 468. 
 
 is Parker V. Kelley, 10 Sm. & Mar. 184; Thompson V. McGill, Freem. 
 Ch. (Miss.) 401; Lewis v. Caperton's Exr., 8 Gratt. 148; Aldridge v. 
 Dunn, 7 Blackf. 249; Lamberton V. Van Voorhis, 15 Hun. 336; Tucker 
 V. Hadley, 52 Miss. 444; Walton V. Hargroves, 42 Id. 18. A subse- 
 quent mortgagee, who knows that part of the purchase price of land 
 is unpaid, takes subject thereto in New Jersey. Harter V. Brewing 
 Co., 64 N. J. Eq. 155, 53 Atl. Rep. 560. 
 
 iMcSimmons V. Martin, 14 Texas 318; Tiernan v. Thurman, 14 B. 
 Mon. 277; Honore V. Bakewell, 6 B. Mon. 67; Daughady v. Paine, 6 
 Minn. 452; Hopkins V. Garrard, 6 B. Mon. 66; Thorpe V. Dunlap, 4 
 Heisk. 674; Frail v. Ellis, 17 Eng. L. & Eq. 457; Manly v. Glason, 21 
 Vt. 271; Wilson v. Lyon, 51 111. 166; Thornton v. Knox, 6 B. Mon. 74; 
 Woodward v. Woodward, 7 B. Mon. 116; Kilpatrick v. Kilpatrick, 23 
 Miss. 124; Parker v. Foy, 43 Miss. 260; McAlpine v. Burnett, 23 Texas 
 C49; Cordova v. Hood, 17 Wall. 1; Masich v. Shearer, 49 Ala. 226. 
 See, King v. Quincy Bank (Tex. 1902), 69 S. W. Rep. 978; Edwards v. 
 Anderson, 71 S. W. Rep. 555; Worth v. Rogers (Ky. 1904), 78 S. W. 
 Rep. 165. 
 
 296
 
 CH. XI.] MORTGAGES. 218 
 
 218. Continued Discharge or waiver of the lien. 
 Since this lien is raised in favor of the vendor on the theory 
 that he is without remedy in a court of law, and the lien is 
 necessary to prevent his incurring the loss of both the land 
 and the purchase-money; if the vendor shows by any act 
 that he does not rely upon the vendor's lien for protection, 
 the land will vest in the vendee, discharged of the lien. 
 The reservation of the lien depends upon the intention of 
 the parties. In the absence of any evidence to the contrary, 
 the law presumes that it was their intention to reserve the 
 lien. This presumption may, however, be rebutted. An 
 express agreement, that the lien shall not be reserved, will, 
 of course, have that effect; and the general rule in all other 
 cases is, that nothing less than the acceptance of some other 
 security will constitute a waiver of the lien. 20 Such would 
 be a mortgage or pledge of the same 21 or other property, or 
 a note with surety or indorser. 22 The execution of an invalid 
 mortgage on the same land would not discharge the lien. 23 
 Nor would a mere change in the form of the vendee's in- 
 debtedness, such as the acceptance of the vendee's bond, 
 
 20 Anderson V. Donnell, 66 Ind. 150; Clark V. Stilson, 36 Mich. 482; 
 Perry v. Grant, 10 R. I. 334; Walker v. Carroll, 65 Ala. 61; Brown f. 
 Oilman, 4 Wheat. 255, 290 ; Fish v. Howland, 1 Paige 20, 30. 
 
 21 Burgess v. Millican, 50 Texas 397; Escher v. Simmons, 54 Id. 269; 
 Neal f. Speigle, 33 Ark. 63; Gaylord v. Knapp, 15 Hun 87; Wells v. 
 Barter, 56 Cal. 342; Richards v. McPherson, 74 Ind. 158; Little v. 
 Brown, 2 Leigh 353; Young v. Wood, 11 B. Mon. 123; Johnson v. Sugg, 
 13 Sm. & Mar. 346. See contra, Armstrong v. Ross, 20 N. J. Eq. 109; 
 DeForest v. Holum, 38 Wis. 516; Anketel V. Converse, 17 Ohio St. 11; 
 Linville v. Savage, 58 Mo. 248; Morris v. Pate, 31 Id. 315. 
 
 22Carrico V. Farmers', etc., Bk., 33 Md. 235; McGonigal v. Plummer, 
 30 Id. 422; Campbell v. Henry, 45 Miss. 326; Sanders v. McAffee, 41 
 Ga. 684; Baum v. Grisby, 21 Cal. 172; Hazeltine v. Moore, 21 Hun, 
 355; Durette V. Briggs, 47 Md. 356; Durham v. Heirs of Daugherty. .30 
 La. Ann. pt. 2, 1255; Haskell v. Scott, 56 Ind. 564. The acceptance of 
 the note from the father of a minor grantee, is not a waiver of the ven- 
 dor's lien, in Alabama. Acree v. Stone (1904), 37 So. Hep. 934. 
 
 23Fouch r. Wilson, 60 Ind. 64; Camden v. Vail, 23 Cal. 633; Kent r. 
 Gerhard, 12- R. I. 92; Martin v. Cauble, 72 Ind. 67. A conveyance 
 
 297
 
 219 MORTGAGES. [PART I. 
 
 note, or check, 24 unless the pal-ties expressly agree or it is 
 provided by law that such change in the form of indebted- 
 ness will operate as an actual payment of the consideration. 25 
 And, on the other hand, if the parties expressly agree or in- 
 tend that the vendor's lien shall be retained notwithstand- 
 ing additional security is given, the lien will not be discharged 
 by the receipt of such security. 26 
 
 219. Continued In whose favor raised. It is doubtful 
 if any one but the vendor and his heirs can claim the 
 benefit of this lien. It certainly does not inuro to a third 
 person, who pays the consideration at the request of the pur- 
 chaser. 27 And whether it is assignable with the vendor's 
 
 from a vendee to the veidor. in satisfaction of the lien, will generally 
 discharge the lien and the debt for which it is given. Austin v. Laiid- 
 erdale (Tex. 1904), 83 S. W. Rep. 413. See also, McCord v. Hames, 85 
 S. W. Rep. 504. 
 
 2* Brinkerhoff r. Vansciven, 3 Green Ch. 251 ; Thornton r. Knox's 
 Exr., 6 B. Mon. 74; Aldridge v. Dunn, 7 Blackf. 240; Baum r. Grigsby, 
 21 Cal. 172; White v. Williams, 1 Paige, 502; Garson r. Green, 1 
 Johns. Ch. 308; Warren f. Fenn, 28 Barb. 333; Vandoren r. Todd. 2 
 Green Ch. 397; Flinn v. Barber, 61 Ala. 530; Bizzell r. Nix, 60 Id. 281; 
 Chapman V. Lee, 64 Id. 483; Shorter f. Frazer, 64 Id. 74. 
 
 25 Keith v. Wolf, 5 Bush, 646; Thames r. Caldwell, 60 Ala. 644: Mo- 
 shier V. Meek. 80 111. 79; Ogden v. Thornton, 30 N. J. Eq. 569; Simp- 
 son V. McAllister, 56 Ala. 228; Shorter V. Frazer, 64 Id. 74; Lavender 
 V. Abbott, 30 Ark. 172; Corlies v. Rowland, 26 X. J. Eq. 311; Nichols 
 V. Glover, 41 Ind. 24; Walton v. Hargroves, 42 Miss. 18; Dodge v. 
 Evans, 43 Id. 570; Kent V. Gerhard, 12 R. I. 92; Dibrell r. Smith, 49 
 Tex. 474; Irvin V. Garner, 50 Id. 48; Madden v. Barnes, 45 Wis. 135; 
 Moore V. Worthy, 56 Ala. 163; Graves v. Coutant, 31 N. J. Eq. 763; 
 Ball r. Hill, 48 Tex. 634; Waldrom .v. Zacharie, 54 Id. 503. 
 
 26Mayes r. Hendry, 33 Ark. 240; Stroud v. Pace, 35 Id. 100; De 
 Forest V. Holum, 38 Wis. 516; Fonda v. Jones, 42 Miss. 792; Sanders V. 
 McAffee, 41 Ga., 684; Irvine v. Muse, 10 Heisk. 477; Durett v. Briggs, 
 47 Mo. 356. 
 
 27Stansell r. Roberts, 3 Ohio 148; Skaggs r. Nelson. 25 Miss. 88; 
 Xolte's Appeal, 45 Pa. St. 361; Brown V. Budd, 2 Ind. 442. But see 
 contra, where this is done by agreement of all the parties, and a note 
 is given by the grantee to a third person who pays the purchase- 
 money to the grantor. Campbell v. Roach, 45 Ala. 667; Hamilton 
 298
 
 CH. XI.] MORTGAGES. 219 
 
 claim for the purchase-money is a matter of great doubt. 
 There are decisions in support of both positions, but the bet- 
 ter opinion is, that the lien is personal to the vendor and can- 
 not be assigned, unless the right is expressly reserved by the 
 parties, when it will have all the characteristics of an ex- 
 press lien, and will pass with the assignment. 28 
 
 r. Gilbert, 2 Heisk. 680; Mitchell u. Butt, 45, 162; Francis v. Wells, 
 2 Col. 660; Perkins r. Gibson, 51 Miss. 699; Nichol r. Glover, 41 Ind. 
 24; Latham f. Staples, 46 Ala. 462. One claiming that his conveyance 
 was voluntary and without any consideration by the grantee, has no 
 equitable lien. Ostenson r. Severson (Iowa 1904), 101 N. W. Rep. 789. 
 A third party who loans money to pay for land, has no lien therefor 
 in Arkansas. Hardin v. Hooks (1904), 81 S. W. Rep. 386. But see, 
 Williams c. Rice, 60 Mich. 102, 26 N. W. Rep. 846; Charter Oak Co. v. 
 Gisborne, 5 Utah 319, 15 Pac. Rep. 253; Carey . Boyle, 53 Wis. 574, 
 UN. W. Rep. 47. A vendor's lien is not waived, in Missouri, by the 
 execution of a mortgage to secure the purchase money notes. Hanuah 
 r. Davis, 112 Mo. 599. 
 
 28 It is held to be non-assignable in California, Illinois, Iowa, Mary- 
 land, Mississippi, Missouri, New York, North Carolina, Ohio, Tennessee. 
 Carlton V. Buckner, 28 Ark. 66; Hutton v. Moore, 26 Ark. 396; Ross v. 
 Heintx.en, 36 Cal. 313; Keith v. Homer, 32 111. 524; Dickenson V. 
 Chase, 1 Morris 492; Moshier v. Meek, SO 111. 79; Inglehart v. AT- 
 miger, 1 Bland 519; Pitts l'. Parker, 44 Miss. 247; Walker r. Williams, 
 30 Miss. 165; White f. Williams, 1 Paige 502; Smith v. Smith, 9 Abb. 
 (N. s.) 420; Green V. Crockett, 2 Dev. & B. Eq. 390; Thorpe f. Dunlap, 
 4 Heisk. 674; Green r. DeMoss, 10 Humph. 371; Stratton V, Gold, 40 
 Miss. 780; Norvell r. Johnson, 5 Humph. 489; Gann f. Chester, 5 
 Yerg. 205; Sheratz v. Nicodemus, 7 Yerg. 9; Briggs v. Hill, 6 How. 
 (Miss.) 362; Horton r. Homer, 14 Ohio 437; Durant v. Davis, 10 Heisk. 
 :r>-2; Tharpe f. Dunlap, 4 Heisk. 674; Williams V. Christian, 23 Ark. 
 255; Blevins r. Rogers, 32 Id. 258; Williams v. Young, 21 Cal. 227; 
 Shall r. Stagg, 95 111. 39; Wing v. Goodman, 75 Id. 159; Rutland V. 
 Brister, 53 Miss. 683; Pearl v. Hervey, 70 Mo. 160; White V. Williams, 
 1 Paige 502. While in Alabama, Indiana, Kentucky, and Texas the 
 lien is held to be assignable. Wells V. Morrow, 38 Ala. 125; Griggsby 
 r. Hair, 25 Ala. 327; Nichols V. Glover, 41 Ind. 24; Honore v. Bake- 
 well, 6 B. Mon. 67; Ripperdon v. Cozine, 8 B. Mon. 465; White v. 
 Downs, 40 Texas 225; DeBruhl r. Mass, 54 Id. 464; Broadwell f. King, 
 3 B. Mon. 449. And in some of the States, where it is generally held 
 Iliiit the lien is nut :i^^iirn;tl)le with the debt, a distinction is made be- 
 tween a transfer by sale of the debt, and a deposit of the debt as se- 
 curity for the vendor's indebtedness. In the latter case it is held that
 
 220 MORTGAGES. [PART I. 
 
 220. Vendee's lien. Where the vendee has paid any part 
 of the purchase-money on the faith of the contract of sale 
 before a conveyance has been made to him, equity gives him 
 a lien upon the title of the vendor for the amount so ad- 
 vanced, which has all the characteristics of the vendor's lien, 
 and is enforceable in the same way against the vendor and all 
 liis privies who have notice. 29 
 
 the pledgee may assert the vendor's lien in his own behalf. Carlton V. 
 Buckner, 28 Ark. 66; Hallock r. Smith, 3 Barb. 272; Crowley r. Riggs, 
 24 Ark. 563. The assignment of the note or other instrument of in- 
 debtedness of the vendee does not discharge the lien although the lien 
 does not pass to the assignee, as long as the vendor is liable as in- 
 dorser or guarantor. He may enforce it for his own benefit. Kelly v. 
 Payne, 18 Ala. 371; White v. Williams, 1 Paige 502; Lindsey v. Bates, 
 42 Miss. 397; Turner f. Homer, 29 Ark. 440; Smith v. Smith, 9 Abb. 
 Pr. (N. s. ) 420. In Missouri, it is held that the assignment of note for 
 purchase money will pass the vendor's lien to the assignee, where the 
 vendor retains the legal title, and has only conditioned for the execu- 
 tion of a deed upon payment of the purchase money. Adams v. Cow- 
 herd, 30 Mo. 458. A vendor's lien is assignable, like a mortgage, with 
 the debt, in Arkansas and Georgia. Smith v. Butler (1904), 80 S. W. 
 Rep. 580; Ray v. Anderson, 119 Ga. 926, 47 S. E. Rep. 205. See also, 
 Dickason v. Fisher, 137 Mo. 342; Sloan 17. Campbell, 71 Mo. 387, 3 Pom. 
 Eq. Jur. 1254. 
 
 29 Burgess v. Wheate, 1 W. Bl. 150; Mackreth v. Symmons, 15 Ves, 
 352; Payne v. Atterbury, Harr. Ch. 414; -Etna Ins. Co. v. Tyler, 16 
 Wend. 385; Lowell v. Middlesex Ins. Co., 8 Gush. 127; Shirley r. Shir- 
 ley, 7 Blackf. 452; Cooper v. Merritt, 30 Ark. 686; Stewart v. Wood, 63 
 Mo. 252; Lane v. Ludlow, 6 Paige 316, note, 2 Story Eq. Jur. Sec. 
 1216; Anderson v. Spencer, 51 Miss. 869; Hughes r. Hatchett, 55 Ala. 
 539; Lane v. Ludlow, 2 Paine 591; Clark f. Jacobs, 56 How. Pr. 519; 
 Wright r. Dufield, 2 Baxt. 218; Flinn V. Barber, 64 Ala. 193; Stewart 
 f. Wood, 63 Mo. 252; Cooper v. Merritt, 30 Ark. 86; Shirley v. Shir- 
 ley, 7 Blackf. 452 ; Brown v. East, 5 Mon. 405, 407. Upon the pur- 
 chaser's lien and enforcement thereof, see, Combs Admr. v. Krish (Ky. 
 1905), 84 S. W. Rep. 562; Durham v. Wick, 210 Pa. 128, 59 Atl. Rep. 
 824; Seibel r. Purchase. 134 Fed. Rep. 484; Corrough v. Hamill, 110 
 Mo. App. 53. 84 S. W. Rep. 96; Smith f. Lamb. 26 111. 396, 79 Am. 
 Dec. 381; Doherty . Dolan, 65 Me. 87, 20 Am. Rep. 677; Fuller v. 
 Hubbard, 6 Cow. 13, 16 Am. Dec. 439. 
 
 300
 
 CII. XI.J MORTGAGES. 222 
 
 221. Enforcement of grantor's, vendor's and vendee's liens. 
 Both the vendor's and the vendee's liens are enforced by a 
 bill in equity; and if the debt cannot be liquidated in any 
 other way, the court will order the property to be sold, or so 
 much of it as is necessary, and the proceeds of sale applied 
 to the satisfaction of the debt. But in order that the prop- 
 erty might be subjected to the lien, the action must be brought 
 directly for that purpose. It cannot be enforced in any col- 
 lateral suit. 30 
 
 222. Mortgage at common law. A common-law mortgage 
 is a conveyance of an estate in lands upon condition that it 
 will be defeated by the payment of the debt or the perform- 
 ance of the obligation, to secure which the conveyance was 
 made. The conveyance is a security and for that purpose the 
 mortgagee is given a defeasible estate, which is to become abso- 
 lute upon the failure of the mortgagor to perform the condi- 
 tion. It is a species of estate upon condition subsequent, and 
 
 so \Yilson v. Davisson, 2 Robt. 384; Mullikin f. Mullikin, 1 Bland 
 538; Eskridge r. McClure, 2 Yerg. 84; Clark v. Bell, 2 B. Mon. 1; 
 Payne f. Harrell, 40 Miss. 498; Clark v. Hunt, 3 J. J. Marsh. 558; 
 Jones v. Conde, 6 Johns. Ch. 77; Ely v.'Ely, G Gray 439; Codwise'v. 
 Taylor, 4 Sneed 346; Burger v. Potter, 32 111. 66; Milner V. Ramsey, 
 48 Ala. 287; Emison v. Risque, 9 Bush 24; Elwards v. Edwards, 5 
 Heisk. 123. In some of the States, the lien-holder must exhaust his 
 remedy at law before he can file a suit in equity to enforce his lien. 
 Roper V. McCook, 7 Ala. 318; Battorf v. Conner, 1 Blackf. 287; Ford 
 v. Smith, 1 McArthur 592; Pratt v. Van Wyck, 5 Gill & J. 495. In 
 Maryland it has now been changed by statute. Gen. Laws Md. (1860) 
 p. 99. And in other States, the vendor or vendee may enforce his lien 
 although he may have a complete remedy at law. Bradley v. Bosley, 1 
 Barb. Ch. 125; Duqois v. Hull, 43 Barb. 26; Stewart v. Caldwell, 54 
 Mo. 536; Pratt v. Clark, 57 Mo. 189; Campbell v. Roach, 45' Ala. 667; 
 Richardson v. Baker, 5 J. J. Marsh. 323; McCaslin v. The State, 44 
 Ind. 151; Sehorn v. McWhirter, 6 Baxt. 311, 313; Church v. Smith, 39 
 Wis. 492. See, Seat f. Knight, 3 Tenn. Ch. 262; Bruce v. Tilson, 25 
 N. Y. 194. For the necessary parties and for form of decree enforcing 
 lien, see, Acree v. Strong (Ala. 1904), 37 So. Rep. 934; Wilson v. 
 Moore (Texas 1904), 85 S. W. Rep. 25; Ford v. Azbell (Ky. 1905), 85 
 S. W. Rep. 217; Brixen v. Jorgensen (Utah 1904), 78 Pac. Rep. 674. 
 
 301
 
 224 MORTGAGES. [PART I. 
 
 grew out of the doctrine of those estates. 31 The common- 
 law mortgage is to be distinguished from two kinds of securi- 
 ties, which once were used quite extensively in Great Britain, 
 viz., vivum vadium and the Welsh mortgage. 
 
 223. Vivum vadium. This was also an estate granted to 
 the creditor for the purpose of securing the payment of a 
 debt. But it is to be distinguished from the mortgage or 
 vadium mortuum, in that the debt was to be satisfied out of 
 the rents and profits of the estate. The grantee in the va- 
 dium vivum invariably took possession of the premises. 
 Transfer of possession was a necessary incident, whereas, as 
 we shall presently have occasion to observe, the common-law 
 mortgage does not require a change of possession, although it 
 may take place. In the mortgage, also, if the mortgagor fails 
 to discharge his obligation, the title becomes absolute in the 
 mortgagee, while in the vadium vivum it never does, but re- 
 verts to the grantor, as soon as the grantee shall have paid 
 himself out of the rents and profits of the estate. 32 
 
 224. Welsh mortgage. This mortgage was one, in which 
 the distinguishing feature was, that the mortgagee always 
 entered into possession and appropriated the rents and profits 
 of the estate in payment of interest on the debt. The mort- 
 gagee could neither compel the mortgagor to pay the prin- 
 cipal, nor foreclose the mortgage and acquire the absolute 
 estate. The mortgagor could pay or not as he chose, but until 
 payment of the principal, he could not exercise any of the 
 rights of an owner over the land. 33 Both the vadium vivum 
 
 3i2 Washburn on Real Prop. 34; 4 Kent's Com. 136; Jones on 
 Mortg., Sec. 4; Williams on Real Prop. 422; Erskine V. Townsend, 2 
 Mass. 493; Mitchell v. Burnham, 44 Me. 299; Wing v. Cooper, 37 Vt. 
 179; Lund v. Lund, 1 N. H. 39. 
 
 sz Jones on Mortg., Sec. 2; 4 Kent's Com. 137; 2 Bla. Com. 157; Co. 
 Lit. 520. 
 
 -34 Kent's Com. 137; Jones on Mortg., Sec. 3; Howell v. Price, 1 P. 
 Wms. 291; Lonquet v. Scawen, 1 Ves. Sr. 402; 2 Washburn on Real 
 Prop. 37. See, O'Neill v. Grab, 39 Hun 566. 
 302
 
 CH. XI.] MORTGAGES. 225 
 
 and the Welsh mortgage have fallen into disuse, and they are 
 mentioned only as curiosities in legal literature. 
 
 225. Equity of redemption. If the mortgagor in a com- 
 mon law mortgage failed to perform the condition at the 
 time stipulated, the estate became absolute in the mortgagee, 
 even though the estate may have been worth much more than 
 the mortgage debt. 34 There was no remedy by which the 
 mortgagor could enforce the acceptance of payment after the 
 breach of the condition, even where his failure arose from 
 some accident or unavoidable delay, or where the payment of 
 the debt with interest to date of the tender of payment would 
 do no injury to the mortgagee. This rigorous rule of the 
 common law did not fail to be productive of great injustice 
 in many instances, and like all cases of hardships resulting 
 from the technicality of the common law, it attracted the at- 
 tention of the Court of Chancery. A long contest ensued be- 
 tween these courts from the time of the Magna Charta until 
 the reign of James I, when Chancery acquired jurisdiction 
 over questions arising out of mortgages, and decreed that the 
 mortgagor may become entitled to redeem his estate from the 
 mortgagee, after condition broken, by the payment of the 
 debt and interest; and in the reign of Charles I the law of 
 mortgages was firmly established as a branch of equity juris- 
 prudence. 35 This right of the mortgagor to redeem the es- 
 
 s* 2 Washburn on Real Prop. 35; 4 Kent's Com. 140; Fay v. Cheney, 
 14 Piek. 399; Briglmm r. Winchester, 1 Mete.' 390; Goodall's Case, 5 
 Rep. 9(5; Wade's Case, 5 Rep. 115; Jones on Mortg., Sec. 11. 
 
 85 1 Spence Eq. Jur. 603; Jones on Mortg., Sec. 6; How . Vigures, 1 
 Rep. in Ch. 32; Emanuel College f. Evans, Id. 18; 2 Washb. on Real 
 Prop. 39; Roscarrick r. Barton, 1 Ca. in Ch. 217; Casborne v. Scarfe, 1 
 Atk. 603; Willett r. Winnelly, 1 Vern. 488; Price t>. Perrie, 2 Freem. 
 258. A statute giving a right of redemption, does not apply to a mort- 
 gage executed before it went into effect. Bremen M. & M. Co. v. Bre- 
 men (N. M. 1905), 79 Pac. Rep. 806; Barnitz v. Beverly, 169 U. S. 118, 
 41 L. Ed. 93. Whenever the mortgagee uses his mortgage to acquire 
 the equity of redemption at less than its value, a court of equity will 
 compell a redemption. Noble v. Graham (Ala. 1904), 37 So. Rep. 230; 
 
 303
 
 227 MORTGAGES. [PART I. 
 
 tate after the breach of the condition was recognized only in 
 a court of equity. The legnl estate, as viewed from the legal 
 standpoint, was still considered to be absolute in the mort- 
 gagee, but discharged of all rights of the mortgagor. The 
 right to redeem was therefore no estate in the land. It was 
 simply an equity, and hence was called the EQUITY OP RE- 
 DEMPTION. 
 
 226. The mortgage in equity. As a result of this equita- 
 ble jurisdiction, mortgages assumed in equity a different char- 
 acter from what they had in law. Equity seized hold of the 
 real intention of the parties, and construed the mortgage to 
 have only the effect of a lien, instead of vesting a defeasible 
 estate in the land. This equitable construction conforms 
 more nearly to the purposes and desired effect of a mortgage. 
 It is given only to secure the payment of a debt, or the per- 
 formance of some obligation, and its ends are satisfied, if 
 after condition broken means are provided to the mortgagee 
 for satisfying his claim by an appropriation of the land, while 
 in the interim his interests are protected against any subse- 
 quent conveyance of the land. All this is attained by a lien. 
 Equity, therefore, held the mortgage to be a lien upon the 
 land, and not an estate in it. 36 
 
 227. Influence of equity upon the law. As soon as equity 
 assumed jurisdiction over mortgages, it began to exert a po- 
 tent influence over the law in respect to that class of interests, 
 and has in the course of time almost entirely superseded the 
 courts of law in their jurisdiction. This is specially true in 
 
 Kakley v. Shelley, 129 Ala. 467, 29 So. Rep. 385; Hyndman v. Hynd- 
 man, 19 Vt. 9, 46 Am. Dec. 171. 
 
 aHeadley v. Goundray, 41 Barb. 282; Jackson v. Willard, 4 Johns. 
 41; Green V. Hart, 1 Johns. 580; Kinna v. Smith, 2 Green Ch. 14; 
 Hughes i>. Edwards, 9 Wheat. 500 ; Runyan V. Mersereau, 1 1 Johns. 534 ; 
 Eaton v. Whiting, 3 Pick. 484; Whitney v. French, 25 Vt. 663; Myers 
 V. White, 1 Rawle, 353; Hannah v. Carrington, 18 Ark. 85; Matthews 
 v. Wallwyn, 4 Ves. 118; 4 Kent's Com. 138. 
 304
 
 CH. XI.] MORTGAGES. 227 
 
 regard to the foreclosure of mortgages. Although in some 
 of the States the common-law foreclosure still prevails in a 
 modified form, yet in most of them, and in England, it has 
 given way to the more practicable and just foreclosure in 
 equity. 37 Not only has equity supplanted the jurisdiction of 
 courts of law in respect to foreclosure, but it has everywhere, 
 in England and in this country, produced, through a legisla- 
 tion, judicial and statutory, greater or less influence upon the 
 legal theories in regard to the interests of the mortgagor and 
 the mortgagee. In some of the States the modifications ef- 
 fected by equity are but slight and pertain only to minor de- 
 tails, while the mortgage is still held to be a conveyance of an 
 estate in the land. Such is the law in Maine, Massachusetts, 
 New Hampshire, Connecticut, Rhode Island, Vermont, North 
 Carolina, Mississippi, Alabama, Missouri, Indiana, and 
 Minnesota. In others the mortgage is still considered a con- 
 veyance of an interest corresponding to an estate, while the 
 mortgagee possesses in the estate only such rights and reme- 
 dies as are recognized in a court of equity. The ordinary 
 legal rights of ownership do not attach. Such will be found 
 to be the law in Pennsylvania, South Carolina, Texas, Ken- 
 tucky, Ohio, Illinois, Iowa, and Wisconsin. This class ap- 
 proximates so nearly to the next class to be mentioned, that 
 in the subsequent discussion of the rights of the mortgagor 
 and mortgagee, they will be treated as constituting one sub- 
 division ; so far at least as general rules are concerned. In 
 the last class of States, namely in New York, Georgia and 
 California, the whole common law theory has been repudiated, 
 and the mortgage is construed to be simply a lien upon the 
 land conveying no legal estate, not even after condition 
 broken. 38 In South Carolina it has been held that the mort- 
 
 872 Washburn on Real Prop. 98; 4 Kent's Com. 181. See post, See. 
 272. A mortgagee in possession, in Kansas, can bring a suit to com- 
 pel 1 the mortgagor to redeem, or to have his mortgage forec.osod. llcii- 
 thorn v. Securities Co., 79 Pac. Hep. 653. 
 
 2 Washburn on Real Prop. 100-108; Jones on Mort^.. Ss. 17-(iO. 
 
 20 305
 
 228 MORTGAGES. [PART I. 
 
 page is so far not an alienation or conveyance of land, as that 
 the word " heirs " is not required to give effect to a mortgage 
 in fee, although words of limitation are still required in that 
 State in conveyances inter vivos. 30 
 
 228. The form of a mortgage. The mortgage consists of 
 a deed, similar in terms to the ordinary deed of conveyance, 
 conveying the estate to the mortgagee, but qualified by a de- 
 feasance clause, in which it is provided that the conveyance 
 shall be void, when the condition, usually the payment of 
 money, is performed, and shall become absolute in the mort- 
 gagee upon breach of the condition. Generally, any deed 
 which appears upon its face to have been intended as a secur- 
 ity for the payment of money, will be construed as a mort- 
 gage. 40 If the instrument does not conform to the legal re- 
 
 3! Bredenburg r. Landrum (s. c.), 10 S. E. Rep. 956. There is no 
 conflict between courts of law and equity, in regard to the rights and 
 status of the mortgagor, as courts of law recognize the power of 
 equity, with reference to the mortgagor's rights, and equity follows the 
 law, so far as the rights of the mortgagee are concerned. 3 Pom. Eq. 
 Jur., Sec. 1184; 4 Kent's Com. 160; 2 Tiffany Real Prop., Sec. 507, 
 p. 1168. Mr. Tiffany observes that the recognition of the right of re- 
 demption, by the mortgagor, and that the mortgage is but a lien, in- 
 stead of an estate upon condition, is a distinct advance in legal ideas, 
 and that with time, the crude conception of an estate upon condition 
 will entirely disappear. 2 Tiffany Real Prop., Sec. 507, p. 1169. The 
 trustee, or mortgagee, in Missouri, takes the legal title for the purposes 
 of security for the debt. Markwell V. Markwell, 157 Mo. 326, 57 S. W. 
 Rep. 1078. 
 
 > Co. Lit. 205 a, Butler's note 96 ; Hughes V. Edwards, 9 Wheat. 489 ; 
 Morris v. Nixon, 1 How. 118; Russell v. Southard, 12 How. 139; Bige- 
 low v. Topliff, 25 Vt. 273; Steel v. Steel, 4 Allen 419; Gilson v. Gilson, 
 2 Allen 115; Parks v. Hall, 2 Pick. 211; Nugent V. Riley, 1 Mete. 117; 
 Vanderhaize r. Hughes, 13 N. J, 244; James V. Morey, 2 Cow. 246; 
 Conway v. Alexander, 7 Cranch 218; Howe v. Russell, 36 Me. 115; 
 Stoever v. Stoever, 9 Serg. & R. 434; Mende r. Delaire, 2 Desau. 564; 
 Yarborough v. Newell, 10 Yerg. 376; Delahay v. McConnell, 4 Scam. 
 156; Flagg v. Mann, 2 Sumn. 386; Edington V. Harper, 3 J. J. Marsh. 
 353; Henry v. Davis, 7 Johns. Ch. 40; M'Brayer v. Roberts, 2 Dev. Eq. 
 75; Hauser v. Lash, 2 Dev. & B. Eq. 212; Clark v. Henry, 2 Cow. 324; 
 Cotterell v. Long, 20 Ohio 464; Burnside v. Terry, 45 Ga, 621; Mason 
 306
 
 CH. XI.] MORTGAGES. 228 
 
 quirements for the execution of a deed, as where the seal has 
 been neglected, or the proper number of attesting witnesses is 
 not obtained, the deed will be inoperative as a mortgage at 
 law, and it is believed generally in equity. But in some of the 
 States, such an imperfect mortgage has been treated in equity 
 as imposing a lien upon the land for the benefit of the cred- 
 itor, which partakes of the same nature as a mortgage by de- 
 posit of title deeds. 41 And it has been held that a written 
 agreement for security on certain property will in equity, 
 under the doctrine of equitable conversion, operate as a lien 
 on such property against every one interested therein, who 
 has notice of the agreement. 42 
 
 v. Moody, 26 Miss. 184; 4 Kent's Com. 461; Newman v. Samuels, 17 
 Iowa 528; Turner r. Brown, 82 Mo. App. 30; Pullis v. Pullis, 157 Mo. 
 565, 57 S. W. Rep. 1095. A deed, given to the grantee, as security for 
 his going security, is a mortgage. Meeker v. Warren (N. J. Cn. 
 1904) 57 Atl. Rep. 421. See also, Morrison v. Jones (Mont. 1904), 77 
 Pac. Rep. 507. Any description in a mortgage is generally held to be 
 sufficient if it would put a subsequent purchaser or lien-holder, upon 
 inquiry. Bray r. Ellison (Ky. 1904), 83 S. W. Rep. 96; Fields V. Fish 
 et al. (Ky. 1004), 82 S. W. Rep. 376; Scott v. Gordon, 109 Mo. App. 
 695, 83 S. W. Rep. 550. 
 
 Coe f. Columbia, etc., R. R. Co., 10 Ohio St. 372; Price v. Cutts, 29 
 Ga. 142-148; McQuie v. Rag, 58 Mo. 56; McClurg v. Phillips, 57 Mo. 
 214; Burnside r. Wayman, 48 Mo. 356; Harrington r. Fortner, 58 Mo. 
 468; Dunn r. Raley, 58 Mo. 134; Lake v. Doud, 10 Ohio, 515; Abbott 1 
 Godfrey, 1 Mann. (Mich.) 198; Black v. Gregg, 58 Mo. 565; Brown V.. 
 Brown, 103 Ind. 23; Bullock v. Whipp, 15 R. D. 195; Watkins f. Vroo- 
 man, 51 Hun 175; Bell v. Pelt, 51 Ark. 433; Westerly Sav. Bank v. 
 Stillman Mfg. Co. (R. I.), 17 Atl. Rep. 918. 
 
 Gest v. Packwood, 39 Fed. Rep. 525; Watkins v. Vrooman, 51 
 Hun 175. Any writing charging a debt on property, although not a 
 formal mortgage, is generally held to be a good mortgage thereon, in 
 equity. Harrigan r. Gilchrist, 121 Wis. 127, 99 N. W. Rep. 909; Feely; 
 r. Bryan (W. Va. 1904), 47 S. E. Rep. 307; Wenzel v. Weigand (Minn. 
 1904), !)!> N. \V. Rep. 633; Potter v. Kimball, 18(i Mass. 120, 71 N. E,.. 
 Rep. 308. The court will decree an agreement to execute a mortgage,, 
 long past due, an equitable mortgage, in Indiana. Hamilton v. Hamil- 
 ton. Ki2 Ind. 430, 70 N. E. Rep. 535. And after the recording or notice 
 of an equitable mortgage, it imparts notice, the same as any other mort- 
 gage, and the rights of the parties are determined accordingly. Mathew 
 
 307
 
 229 MORTGAGES. [PAKT I. 
 
 229. Execution of the defeasance. The defeasance clause 
 is usually found in the same deed which conveys the estate, 
 but this is not necessary. It may be contained in a separate 
 instrument executed and delivered by the grantee or mort- 
 gagee to the grantor or mortgagor. In such a case, however, 
 the instrument must be under seal, in order to have at law the 
 power of converting the apparently absolute deed of convey- 
 ance into a mortgage. 43 It must either be executed at the 
 same time or subsequently in pursuance of an agreement en- 
 tered into at the time of conveyance. 44 And as a general 
 rule, although it is not necessary that the deed and the de- 
 feasance should bear the same date or be executed at the same 
 time, they must be delivered at the same time. Delivery of 
 the defeasance is essential to its full legal operation. 45 In 
 
 r. Damainville, 89 N. Y. S. 493. A written assignment of a contract 
 for a deed, is an equitable mortgage, in Missouri. Hackett r. Watts, 
 138 Mo. 502. An agreement by the owner of an equity of redemption, 
 in consideration of the stay of foreclosure proceedings, to execute a bond 
 and mortgage, on certain property is held, in New York, to amount to 
 an equitable mortgage thereon. Matthew v. Damainville, 89 N. Y. S. 493. 
 
 Bodwell v. Webster, 13 Pick. 411; Adams v. Stevens, 49 Me. 362; 
 Warren v. Lovis, 53 Me. 464; French v. Sturdivant, 8 Greenl. 246; Dey 
 r. Dunham, 2 Johns. Ch. 191; Baker v. Wind, 1 Ves. sr. 160; Perkins 
 r. Dibble, 10 Ohio 433; Lane t?..Shears, 1 Wend. 433; Stoever v. Sto- 
 ever, 9 Serg. R. 434; Houser v. Lament, 55 Pa. St. 311; Sharkey V. 
 Sharkey, 47 Mo. 543; Clark v. Lyon, 46 Ga. 203; Robinson r. Willough- 
 by, 65 N. C. 520; Archambau V. Green, 21 Minn. 520; Freeman v. Bald- 
 win, 13 Ala. 246; Edington v. Harper, 3 J. J. Marsli. 353; Hammonds 
 r. Hopkins, 3 Yerg. 525 ; Clark v. Henry, 2 Cow. 324. 
 
 <* Jeffrey v. Hursh, 58 Mich. 246 ; Waters v. Crabtree, 105 N. C. 394 ; 
 McMillan v. Bissell, 63 Mich. 66. In McCauley v. Smith (132 N. Y. 
 524, Finch's Sel. Cas. 1109), the New York court held that it was com- 
 petent to consider an agreement, antedating the deed, with a view of 
 determining the character of the conveyance and whether it was a 
 mortgage or an absolute deed. 
 
 Bennock r. Whipple, 12 Me. 340; Bodwell v. Webster, 13 Pick. 411; 
 Kelly r. Thompson, 7 Watts 401; Reitenbaugh r. Ludwick, 31 Pa. St. 
 131; Hale r. Jewell, 7 Greenl. 435; Holmes v. Grant, 8 Paige Ch. 243; 
 Newhall r. Bart, 7 Pick. 157; Colwell v. Woods, 3 Watts 188; Kelley v. 
 Thompson, 7 Watts 401; Nugent v. Riley, 1 Mete. 117; Crane v. Bon- 
 nell, 1 Green Ch. 264; Wilson v. Shoenberger, 31 Pa. St. 295; Mclntier 
 308
 
 CH. XI.] MORTGAGES. 230 
 
 some of the States a separate deed of defeasance is required 
 to be recorded, . in order to convert an absolute deed into a 
 mortgage, as against every one except the maker. 46 But 
 where such is not the law, any other notice, actual or con- 
 structive, suffices to bind subsequent purchasers. If they have 
 no notice of the defeasance at all, the deed as to them will 
 be an absolute conveyance. 47 And where they are both re- 
 corded they must show r for themselves, that they are parts of 
 the same transaction, in order that the record may be con- 
 structive notice to purchasers. 48 Possession by the grantor is 
 not notice of a defeasance deed held by him. 49 
 
 230. Form of the defeasance. No particular form is nec- 
 essary, provided the deed clearly shows the intention of the 
 parties, that the instrument shall have the effect of a mort- 
 gage. 50 And wherever the condition in a deed is the payment 
 of money, the presumption of law is always in favor of its be- 
 
 V. Shaw, 6 Allen 83; McLaughlin V. Shepherd, 32 Me. 143; Brown v. 
 Holyoke, 53 Me. 9; Haines v. Thompson, 70 Pa. St. 434; Bickford V. 
 Daniels, 2 N. H. 71. 
 
 "Tomlinson v. Monmouth Ins. Co., 47 Me. 232; 1 Minn. Stat. at 
 large (1873) p. 640; Russell v. Waite, Walk. 31. 
 
 *7 Newhall V. Pierce, 5 Pick. 450 ; Parrington v. Pierce, 38 Me. 447 ; 
 Walton V. Crowley, 14 Wend. 63; Brown v. Dean, 3 Wend. 208; James 
 v Johnston, 6 Johns. Ch. 417: Friedley r. Hamilton, 17 Serg. & R. 70; 
 Knight . Dyer, 57 Me. 177; Day v. Dunham, 2 Johns. Ch. 182; Wyatt 
 v. Stewart, 34 Ala. 716; Halsey v. Martin, 22 Cal. 645; Henderson 0. 
 Pilgrim, 22 Texas, 475. 
 
 <" Weide r. Gehl, 21 Minn. 449; Hill V. Edwards, 11 Minn. 22; King 
 v. Little, 1 Cush. 436. 
 
 49 Newhall r. Pierce, 5 Pick. 450; Hennessey v. Andrews, 6 Cush. 170; 
 Kunkle v. Wolfsberger, 6 Watts 126. See contra, Daubenspeck v. 
 Platt, 22 Cal. 330; Pritchard v. Brown, 4 N. H. 397. In Conway's 
 Exec. T. Alexander (7 Cranch 218), Ch. J. Marshall, says: "The want 
 of a covenant to repay the money, is not complete evidence that the con- 
 ditional sale was intended, but is a circumstance of no inconsiderable 
 importance." See also, Flagg v. Mann, 14 Pick. 467. 
 
 nopearce v. Wilson, 111 Pa. St. 14; Mellon v. Lemmon, 111 Pa. St. 
 66; In re Helfenstein's Estate,, 20 Atl. Rep. 151. See, McCaul v. Smith, 
 132 N. Y. 524; Finch's Sel. Cas. 1109. 
 
 309
 
 231 MORTGAGES. [PART I. 
 
 ing treated as a mortgage. Any agreement under seal, there- 
 fore, which provides for the contingent avoidance of a deed 
 of conveyance, or calls for the reconveyance of the estate, 
 upon the payment of a sum of money within the prescribed 
 time, will be a defeasance deed and will make the deed of con- 
 veyance a mortgage. And where the relation of debtor and 
 creditor existed, any such agreement would be held to create 
 a mortgage, although the parties did not intend that that 
 should be the effect of the transaction. 61 Such agreements or 
 defeasance deeds or clauses are to be distinguished from 
 
 231. Agreements to repurchase, Which very often bear 
 a close resemblance to each other. The difference in the legal 
 effect of the two is very great. If the agreement be merely 
 to repurchase upon certain specified terms, or at the time 
 stipulated, a failure to comply with the terms of the agree- 
 ment destroys the right to repurchase, and the grantor has 
 no equity of redemption, of which he can afterward avail 
 himself in a court of equity. If it is a defeasance, he has 
 that right, the conveyance being a mortgage. Wherever a 
 doubt exists whether the agreement is one to repurchase or a 
 defeasance, the courts are inclined to the latter construction. 
 And where the relation between the parties is that of debtor 
 and creditor, and the intention of the parties, as shown on 
 the face of the deed, is that the agreement should operate as 
 a security for the debt, the presumption becomes conclusive 
 that the agreement is a defeasance. And generally, under 
 
 "Nugent v. Riley, 1 Mete. 117; Hebron v. Centre Harbor, 11 N. H. 
 571; Holmes v. Grant, 8 Paige Ch. 243; Lanfair r. Lanfair, 18 Pick. 
 299; Austin v. Downer, 25 Vt. 558; Stewart v. Hutchings, 13 Wend. 
 485 ; Hicks v. Hicks, 5 Gill & J. 75 ; Breckinridge v. Auld, 1 Robt. 148 ; 
 Reed V. Gaillard, 2 Desau. 552; Harrison v. Lemon, 3 Blackf. 51; Carr 
 17. Holbrook, 1 Mo. 240; Belton V. Avery, 2 Root, 279; Marshall V. 
 Stewart, 17 Ohio 356; Pugh V. Holt, 27 Miss. 461; Gillis V. Martin, 
 2 Dev. Eq. 470 ; Coldwell V. Woods, 3 Watts 188; Kunkle v. Wolfers- 
 berger, 6 Watts 126; W 7 atkins V. Gregory, 6 Blackf. 113; Peterson v. 
 Clark. 15 Johns. 205; Rice V. Rice, 4 Pick. 349; Pearce V. Wilson, 111 
 Pa. St. 14; Hannah v. Davis, 112 Mo. 599. 
 310
 
 CH. XI.] MORTGAGES. 231 
 
 such circumstances, parol evidence will not be admissible to 
 rebut this presumption, although such evidence is freely ad- 
 mitted to rebut the contrary presumption. 32 Each case, how- 
 ever, must depend upon its own circumstances, and the ques- 
 tion finally becomes one of fact, whether it was intended that 
 the agreement should operate as a defeasance or as a condi- 
 tional sale. 53 Among the circumstances, which tend to estab- 
 lish the presumption that the agreement is a defeasance, are 
 the inadequacy of the consideration, the continued possession 
 of the grantor, the necessities or financial embarrassments 
 of the grantor; while the adequacy of the consideration, the 
 
 52 2 Cruise Dig. 74 ; 4 Kent's Com. 144 ; Kelly v. Thompson, 7 Watts 
 401; Wing v. Cooper, 37 Vt. 179; Trucks V. Lindsay, 18 Iowa 505; 
 Trull v. Skinner, 17 Pick. 216; Page v. Foster, 7 N. H. 392; Con way 0. 
 Alexander, 7 Cranch 218; Weathersly v. Weathersly, 40 Miss. 469; Pear- 
 son r. Seay, 35 Ala. 612; DeFrance r. DeFratoce, 34 P. St. 385; Wat- 
 kins r. Gregory, 6 Blackf. 113; Haines V. Thompson, 70 Pa. St. 438; 
 Peterson v. Clark, 15 Johns. 205; Robinson V. Cropsey, 2 Edw. Ch. 138; 
 s. c. 6 Paige 480; Brown v. Dewey, 1 Sandf. Ch. 56; Sears V. Dixon, 33 
 Cal. 326; Poindexter t;. McCannon, 1 Dev. Eq. 373; Pennington V. 
 Hanby, 4 Munf. 140; Henly v. Hotaling, 41 Cal. 22; Kearney v. Mc- 
 Comb, 16 N. J. Eq. 189; Glover V. Payne, 19 Wend. 518. But if the 
 debt is an old one, and the intention of the parties is to pay the debt 
 by the conveyance, the agreement to repurchase will not convert the 
 deed into a mortgage, as it would if the conveyance was intended as a 
 security for the conveyance. Glover v. Payne, 19 Wend. 518; Murphy 
 v. Parifay, 52 Ga. 480; Slowey v. McMurray, 27 Mo. 113; O'Neill v. 
 Capelle, 62 Mo. 202; Honore v. Hutchings, 8 Bush 687; Pitts v. Cable, 
 44 111. 103; Magnusson v. Johnson, 73 111. 156; Hall v. Saville, 3 
 Greene (Iowa) 37; West V. Hendrix, 28 Ala. 226; Ruffier v. Womack, 
 36 Texas 332; Kerr v. Hill, 27 W. Va. 576; Chicago, B., etc., R. R. Co. 
 v. Watson, 113 111. 195; Wolfe v. McMillan, 117 Ind. 587. 
 
 5 3 But in order that a conveyance may be treated as a mortgage, 
 there must be a debt or a loan. If there be no debt, the agreement to 
 reconvey is an agreement to repurchase, or converts the original con- 
 veyance into a conditional sale. Lund v. Lund, 1 N. H. 39; Flagg v. 
 Mann, 14 Pick. 467; Pearson v. Seay, 35 Ala. 612; Henley v. Hotaling, 
 41 Cal. 22; DeFrance v. DeFrance, 34 Pa. St. 385; Rich v. Doane, 35 
 Vt. 125; Chandler v. Chandler, 76 Iowa 574; Vincent v. Walker, 86 Ala. 
 333. See also, opinion of Chief Justice Marshall in Conway's Exec, v, 
 Alexander, 7 Cranch 218. 
 
 311
 
 231 MORTGAGES. [PART I. 
 
 possession of the grantee, the vesting of the right to enforce 
 the agreement in a third person, the existence of other secur- 
 ities in the possession of the grantor for the payment of the 
 consideration of the original conveyance, go to prove that it 
 was a conditional sale, or that the grantor has only the right 
 to repurchase". 54 Both the defeasance and the contract to 
 repurchase are to be distinguished from a contract to repur- 
 chase at a given figure, if the grantee should at any time 
 conclude to sell. This agreement does not give the grantor 
 
 "Williams V. Owen, 5 Mylne & C. 303; Perry v. Meddowcraft, 4 
 Beav. 197; Haines v. Thompson, 70 Pa. St. 442; Hiester v. Madeira, 3. 
 Watts & S. 384; Baker v. Thrasher, 4 Denio 493; Conway V. Alexander, 
 
 7 Cranch 218; Holmes v. Grant, 8 Paige Ch. 243; Russell V. Southard, 
 12 How. 139; Waters v. Randall, 6 Mete. 479; West v. Hendrix, 28 Ala. 
 226; Sellers V. Stalcup, 7 Ired. Eq. 13; Bennett v. Holt, 2 Yerg, 6; 
 Flagg v. Mann, 14 Pick. 467; Low v. Henry, 9 Cal. 538; Warren v. 
 Lovis, 53 Me. 463; Ransqne v. Frayser, 10 Leigh 592; Campbell v. Dear- 
 born, 109 Mass. 130; Freeman v. Wilson, 51 Miss. 329; Brown f. 
 Dewey, 1 Sandf. Ch. 56; Carr V. Rising, 62 111. 14; Pearson v. Seay, 35 
 .Ala. 612; Elliott r. Maxwell, 7 Ired. Eq. 246; Trucks v. Lindsey, 18 
 Iowa 504; Gibbs v. Penny, 43 Texas 560; Crews v. Threadgill, 35 Ala. 
 334; Wilson f. Patrick, 34 Iowa 361; Greig V. Russell, 115 111. 483; 
 Devore r. Woodruff (N. D.), 45 N. W. Rep. 701; Lynch v. Jackson, 28 
 111. App. 660, s. c. 129 111. 72; Snow V. Pressey, 82 Me. 552; Sherrer r. 
 Harris (Ark.), 13 S. W. Rep. 730; Clark, 24 HI. App. 510; Becker 0. 
 Howard, 75 Wis. 415; Greenwood, etc., Co., v. N. Y., etc., R. R. Co., 
 
 8 X. Y. S. 711; Eames v. Hardin, 111 111. 634; Gaines v. Brockerhoff 
 (Pa), 19 Atl. Rep. 958; Fox v. Heffner, 1 Watts & S. 372; Jackinan f. 
 Kingland, 4 Watts & S. 149; Null v. Fries, 110 Pa. St. 521; Lynch t. 
 Jackson, 28 111. App. 160, s. c. 129 111. 72; Stahl v. Dehn, 72 Mich. 645; 
 Elston v. Chamberlain, 41 Kan. 354; Baker v. Fireman's Fund 
 Ins. Co., 79 Cal. 34; Chandler v. Chandler, 76 Iowa 574; Jackson V. 
 Lynch, 129 111. 72; Hall v. Arnott, 80 Cal. 348; Wallace f. Johnstone, 
 129 U. S. 58; Hodge r. Weeks, 31 S. C. 276; Vincent v. Walker, 86 
 Ala. 333. When it is doubtful on all the facts of the case, whether the 
 transaction is a mortgage or a conditional sale, it is always presumed 
 to be a mortgage. Russell v. Southard, 12 How. 139; Eaton v. Green, 
 22 Pick. 526; Crane r. Bonnell, 1 Green Ch. 264; laugher v. Merry- 
 man, 32 Md. 185; Cottrell r. Long, 20 Ohio 464; Gillis V. Martin, 2: 
 Dev. Eq. 470; O'Neil r. Capelle, 62 Mo. 209; Turner v. Kerr, 44 Mo. 
 429; Heath v. W'illiams, 30 Ind. 498; Scott v. Henry, 13 Ark. 112; 
 Ward f. Deering, 4 Mon. 44; Jones v. Blake, 33 Minn. 362. 
 
 312
 
 CH. XI.] MORTGAGES. 233 
 
 any right to compel a reconveyance, if the grantee does not 
 want to sell. 55 
 
 232. The defeasance clause in equity. If the instrument 
 containing the defeasance does not fulfill all the legal require- 
 ments of a deed, it will not in a court of law have the effect 
 of converting an absolute conveyance into a mortgage. But 
 it will be good in equity, and in that court the conveyance 
 will be treated and enforced as a mortgage against all having 
 actual notice of its real character. Thus, the want of a seal, 
 the absence of the requisite number of witnesses, an improper 
 acknowledgment of the deed, would invalidate the defeasance 
 in law, but it would be enforced in equity. 50 Courts of 
 equity have not only gone thus far in correcting and supple- 
 menting the common law, but they have, also, in cases were 
 the defeasance was not put to writing, sustained 
 
 233. The admissibility of parol evidence, To prove that 
 a deed, absolute on its face, was intended to be a mortgage. 
 The authorities are not uniform as to how far, or in what 
 cases, such evidence is admissible. Some have held that in 
 any case parol evidence can be introduced to prove a deed 
 to be a mortgage, thus ignoring completely the application 
 to mortgages of the rule, that parol evidence is inadmissible 
 to vary or control a written instrument, 57 while others either 
 
 55 Garcia v. Callender, 125 N. Y. 307. 
 
 5 Story Eq. Jur., Sec. 1018; Eaton r. Green, 22 Pick. 526; Delaire r. 
 Keenan, 3 Desau. 74; Flagg v. Mann, 14 Pick. 467; Cutter r. Dickinson, 
 8 Pick. 386; Warren f. Louis, 53 Me. 463; Murphy v. Calley, 1 Allen 
 107; Gillis r. Martin, 2 Dev. Eq. 470. See 2 Washburn, Sec. 59; Ilani- 
 gan V. Gilchrist, 121 Wis. 127, 99 N. W. Rep. 909; Feelcy r. Bryon 
 (W. Va. 1904), 47 S. E. Rep. 307; Wenzel v. Weigland (Minn. 1904), 
 99 N. W. Rep. 633; Potter f. Kimball, 186 Mass. 120, 71 X. E. Rep. 
 308; Hamilton r. Hamilton, 162 Ind. 430, 70 N. E. Rep. 53.5; Hackett 
 r. Watts, 138 Mo. 502; Matthews r. Damainville, 89 N. Y. S. 403. 
 
 57 Russell f. Southard, 12 How. 139; Babcock v. Wyman. 19 How. 
 239; Sprigg v. Bk. of Mt. Pleasant, 14 Pet. 201; Anthony f. Antlmny. 
 23 Ark. 479; Pierce v. Robinson, 13 Cal. 116; Farmer v. Grose, 42 C;il. 
 
 313
 
 233 MORTGAGES. [PART I. 
 
 deny the right altogether/' 8 or limit its admissibility to such 
 cases as fall within the ordinary equitable jurisdiction of 
 fraud, accident or mistake, i. e., where the failure to reduce 
 the defeasance to writing arose out of some fraud, accident 
 or mistake. 89 As a general rule, such evidence will be re- 
 
 169; Kuhn v. Rumpp, 46 Cal. 299; Klock v. Walter, 70 111. 416; Heath 
 V. Williams, 30 Ind. 495; Johnson v. Smith, 39 Iowa 549; Zuvor r. 
 Lyons, 40 Iowa 570; Richardson v. Woodbury, 43 Me. 206; Camplx-ll 
 r. Dearborn, 109 Mass. 130, 12 Am. Rep. 371; Hassam r. Barrett, 115 
 Mass. 24; McDonough v. Squire, 111 Mass. 256; Flagg V. Mann, 14 
 Pick. 467, 478; Wadsworth v. Loranger, Har. (Mich.) 113; Freeman r. 
 Wilson, 51 Miss. 329; Littlewort v. Davis, 50 Miss. 403; O'Neill v. 
 Capelle, 62 Mo. 202 ; Sweet f. Parker, 22 N. J. Eq. 453; Crane V. Bon- 
 nell, 1 Green Ch. 264 ; Strong v. Stewart, 4 Johns. 167 ; Horn r. Ketel- 
 tas, 46 N. Y. 605 ; Carr v. Carr, 52 N. Y. 258 ; Fielder V. Darien, 50 N. 
 Y. 437; Miami Ex. Co. v. U. S. Bank, Wright 249; Cottrell v. Long, 
 20 Ohio 464; Kerr v. Gilmore, 6 Watts 405; Palmer V. Guthrie, 76 Pa. 
 St. 441; Nichols v. McCabe, 3 Head. 93; Haynes r. Swan, 6 Heisk. 560; 
 Ruggles r. Williams, 1 Head. 141; Gibbs v. Penny, 43 Texas 560; Hills 
 1?. Loomis, 42 Vt. 562; Bird r. Wilkinson, 4 Leigh 266; Cadman r. 
 Peter, 118 U. S. 731; Lance's Appeal, 112 Pa. St. 456; Matheny r. 
 Sandford, 26 W. Va. 385; Workman v. Greening, 115 111. 477; Bailey 
 v. Bailey, 115 111. 551; Jones v. Blake, 33 Minn. 362; Miller v. Ausenig, 
 2 Wash. 22; McMillon v. Bissell, 63 Mich. 66; Murdock v. Clark (Cal.), 
 24 Pac. Rep. 272; Gilchrist v. Boswick, 33 W. Va. 168; Broughton '-. 
 Vasquez, 73 Cal. 325; Ashton v. Shepherd, 120 Ind. 64; McPherson r. 
 Hayward, 81 Me. 329; Hart v. Epstein, 71 Tex. 752; Hanks r. Rhodes, 
 128 111. 404; Tower v. Fetz, 26 Neb. 706; Hall V. Arnott, 80 Cal. 348; 
 Jackson v. Jones, 74 Tex. 104; Book v. Bessley, 138 Mo. 455; Boob 
 V. Wolff, 148 Mo. 355; Chance v. Jennings, 159 Mo. 544. 
 
 ssBassett v. Bassett, 10 N. H. 64; Porter V. Nelson, 4 N. H. 130; 
 Boody 17. Davis, 20 N. H. 140. By statute, in Georgia, the admissibility 
 of parol evidence is limited to cases of fraud in the procurement of the 
 absolute deed. Code Ga. (1873), p. 669; Spence v. Steadman, 49 Ga. 
 133; Broach v. Barfield, 57 Ga. 601; Mitchell v. Fullington, 83 Ga. 301. 
 In Pennsylvania a similar statute has been enacted. Smolly v. Ulrica 
 (Pa.), 19 Atl. Rep. 305. In Connecticut it has been held to be a 
 doubtful question. Osgood v. Thompson Bk., 30 Conn. 27. 
 
 BWashburn 17. Merrills, 1 Day, 139; French v. Burns, 35 Conn. 359; 
 Spence v. Steadman, 49 Ga. 133; Biggars v. Bird, 55 Ga. 650; Skinner 
 t7. Miller, 5 Litt. 86; Blanchard v. Kenton, 4 Bibb. 451; Green v. Sher- 
 rod, 105 N. C. 197; Coutcher v. Muir's Exr. (Ky.), 13 S. W. 435. And 
 if the deed is made absolute so as to cover up a usurious contract, it 
 314
 
 CH. XI.] MORTGAGES. 233 
 
 ceived only in a court of equity, and although perhaps the 
 majority of the courts apply the rule in every case, irrespec- 
 tive of any question of fraud, yet, upon a closer analysis of 
 the cases, it will be found that in no case does the court of 
 equity interfere and permit the introduction of parol evi- 
 dence, unless the circumstances of the case are such as would 
 make the vendee guilty of -at least constructive fraud in in- 
 sisting upon the deed being treated as an absolute convey- 
 ance. uo In any case, the evidence must be clear and free 
 from doubt as to the intention to execute a mortgage in order 
 
 will be such a ground of fraud in Kentucky as will admit parol evi- 
 dence. Murphy v. Trigg, 1 Mon. 72; Cook v. Colyer, 2 B. Mon. 71; 
 Price v. Grover, 40 Md. 102; Kelly V. Bryan, 6 Ired. Eq. 283; Brothers 
 f. Harrill, 2 Jones Eq. 209; Glisson v. Hill, Id. 256; Arnold v. Mat- 
 tison, 3 Rich. Eq. 153. 
 
 co In most of the States where the rule is broad, as above stated, it is 
 held, to employ the language of Mr. Jones, that " fraud in the use cf 
 the deed is as much a ground for the interposition of equity as fraud 
 in its creation." Jones on Mortg., Sec. 288; Pierce v. Robinson, 13 
 Cal. 116; Conwall v. Evill, 4 Ind. 67; O'Neill V. Capelle, 62 Mo. 202; 
 Moreland r. Barnhart, 44 Texas, 275, 283; Strong v. Stewart, 4 Johns. 
 Ch. 167. In Horn V. Ketelas (46 N. Y. 605), the New York Court 
 said: "It is too late to controvert the proposition, that a deed, ab- 
 solute upon its face, may, in equity, be shown, by parol or other ex- 
 trinsic evidence, to have been intended as a mortgage." s. c. Finch's 
 Sel. Cas. p. 1106, citing, Holmes v. Grant, 8 Paige, 243; Robinson v. 
 2 Edw. Chy. R. 138; Strong v. Stewart, 4 J. C. R. 167; Clark v. Henry, 
 2 Cow. 324; Murray v. Walker, 31 N. Y. 399. Parol proof, to es- 
 tablish that an absolute deed is, in fact, a mortgage, is held competent 
 in the following cases: Holmes v. Warren, 145 Cal. 457, 78 Pac. Rep. 
 954; Conkey v. Rex, 212 111. 444, 72 N. E. Rep. 370; Clark v. Sea- 
 greaves, 186 Mass. 430, 71 N. E. Rep. 370; Faulkner v. Cody, 91 N. Y. 
 S. 633; McGill v. Thome, 70 S. C. 65, 48 S. E. Rep. 994; Hursey v. 
 Hursey (W. Va. 1904), 49 S. E. Rep. 367; Schneider v. Reed (Wis. 
 1905), 102 N. W. Rep. 571; N. W. Fire Ins. Co. V. Lough (N. D. 1904), 
 102 N. W. Rep. 160; Foster v. Rice (Iowa, 1904), 101 N. W. Rep. 771; 
 Welborn v. Dixon, 70 S. C. 108, 49 S. E. Rep. 232; Gerhardt v. Tucker, 
 187 Mo. 46, 85 S. W. Rep. 552. The test to determine whether or not 
 a deed is a mortgage is the subsequent existence of a debt. Holmes V. 
 Warren, 145 Cal. 457, 78 Pac. Rep. 954; Conkey v. Rex, 212 111. 444, 
 72 N. E. Rep. 370. 
 
 315
 
 <j 234 MORTGAGES. [l'ART I. 
 
 that a deed absolute on its face may by parol evidence be con- 
 verted into a mortgage. 01 It is to be understood, however, 
 that the deed cannot be shown to be a mortgage, so as to dis- 
 turb the title of a purchaser from the grantee, in reliance 
 upon his apparent absolute title. 62 
 
 234. Contemporaneous agreements. If the deed be in 
 fact a mortgage, not only will no parol evidence be admitted 
 to show that such was not the intention of the parties, but 
 it is also impossible by any 'contemporaneous agreement of 
 the most formal character to withdraw from the mortgage 
 the rights which are incident thereto, or to change the obli- 
 gations of the parties thereunder in any manner whatsoever. 
 The right to redeem after condition broken can never be 
 taken away by such an agreement. The agreement is simply 
 T oid. C3 Neither can the mortgage provide for redemption 
 
 aiCadman v. Peters, 118 Pa. St. 73; Lance's Appeal, 112 Pa. St. 456; 
 Matheney V. Samlford, 20 W. Va. 386; Bentley v. O'Bryne, 111 111. 53; 
 Partner's Admr. v. Farmer, 88 Ala. 545; Fisher's Appeal, 132 Pa. St. 
 488; Langes v. Muservey (Iowa), 45 N. W. Rep. 732; Armor v. Spald- 
 ing (Colo.), 23 Pac. Rep. 789; Franklin v. Ayers, 22 Fla. 645; Mc- 
 Millan v. Bissell, 63 Mich. 66; Jameson v. Emerson, 82 Me. 359; San- 
 born v. Magee (Iowa), 44 N. W. Rep. 720; Sherrer v. Harris (Ark.), 
 13 S. W. Rep. 730; Jones v. Pierce (Pa.), 19 Atl. Rep. 689; Winston 
 v. Burrell (Kan.), 24 Pac. Rep. 477; Strong v. Strong, 27 111. App. 
 148; s. c. 126 111. 301; Shattuck v. Bascom, 55 Hun, 14 Null v. Fries, 
 110 Pa. St. 521; Munger v. Casey (Pa. St.), 17 Atl Rep. 36; Town- 
 send v. Petersen, 12 Colo. 491; Jackson v. Jones, 74 Tex. 104. As a 
 condition to the review of a deed, to ascertain if it will be held to be a 
 mortgage, the plaintiff must generally offer to redeem as to the alleged 
 mortgage. Gerhart v. Tucker, 187 Mo. 46, 85 S. W. Rep. 552. But see, 
 Marvin 0. Prentice, 49 How. Pr. 385. 
 
 62 Jackson V. Lawrence, 117 U. S. 679; Parrott v. Baker, 82 Ga. 364. 
 
 63 Wing v. Cooper, 37 Vt. 181; Clark v. Henry, 2 Cow. 324; Henry V. 
 Davis, 7 Johns. Ch. 40; Vanderhaize v. Haques, 13 N. J. 244; Olden- 
 baugh v. Bradford, 67 Pa. St. 104; Rankin v. Mortimere, 7 Watts, 372; 
 Baxter v. Child, 39 Me. 110; Johnston v. Gray, 16 Serg. & R. 361; 
 Murphy v. Calley, 1 Allen, 107; Clark v. Condit, 18 N. J. Eq. 358; 
 Batty V. Snook, 5 Mich. 231; Thompson V. Davenport, 1 Wash. (Va.) 
 125; Eaton v. Whiting, 3 Pick. 484; Wynkoop v. Cowing, 21 111. 
 
 316
 
 CH. XL] .sicnTGACES. 235 
 
 within a shorter period than what is allowed by law, nor im- 
 pose an increased rate of interest after breach of the condi- 
 tion, nor require anything else which would in the slightest 
 degree curtail the right to redeem. 64 
 
 235. Subsequent agreements. But it is possible for the 
 mortgagor by a subsequent agreement, either to deprive him- 
 self entirely of the equity of redemption, or to limit its exer- 
 cise. But in view of the peculiar relation of the parties, 
 
 570; Cherry v. Bowen, 4 Sneed 415; Willetts r. Burgess, 34 111. 494. An 
 agreement to turn a mortgage into an absolute deed, is one that finds no 
 favor, in equity, as the maxim is, " once a mortgage always a mort- 
 gage." McCauley v. Smith, 132 N. Y. 524; Finch's Sel. Cas. 1110; 
 Carr v. Carr, 52 N. Y. 251; Morris v. Nixon, 1 How. (U.S.) 118; 
 Villa v. Rodigues, 12 Wall. 323, 4 Kent's Com. 143; Seton v. Slade, 7 
 Ves. 265; Newcomb v. Bonham, 1 Vern. 7; Co. Lit. 205 a, n. 96; 1 
 Spence Eq. Jur. 693; Miami Ex. Co. V. U. S. Bank, Wright (Ohio), 
 253; Youle v. Richards, 1 N. J. Eq. 534; McClurkan v. Thompson, 69 
 Pa. St. 305. 
 
 * Johnston v. Gray, 16 Serg. & R. 361; Howard v. Harris, 1 Vern. 
 33 ; Spurgeon v. Collier, 1 Eden, 55 ; Mayo v. Judah, 5 Munf. 495 ; Price 
 r. Perrie, Freem. Ch. 257; Hallifax v. Higgens, 2 Vern. 134; McClur- 
 kan v. Thompson, 69 Pa. St. 305; Tooms v. Couset, 3 Atk. 261; 
 Waters f. Randall, 6 Mete. 479; Chambers v. Goldwin, 9 Ves. 271; 
 Jenning v. Ward, 2 Vern. 520; Chambers V. Goldwin, 9 Ves. 71; Leith 
 f. Irvine, 1 My. & K. 277; Blackburn v. Warwick, 2 Younge & C. 92. 
 But it has been held that the right to redeem may be postponed for a 
 reasonable time by the agreement of the parties. Talbot V. Braddill, 1 
 Vern. 183; Cowdry v. Day, 1 Gif. 316. And an agreement that, upon 
 the failure to pay interest or an installment of the principal when due, 
 the entire debt will fall due, is good, and does not curtail the right 
 to redeem. Ferris v. Ferris, 28 Barb. 29; People v. Supreme Court, 19 
 Wend. 104; Noyes r. Clark, 7 Page, 179; James v. Thomas, 5 B. & 
 Ad. 40; Basset v. Gallagher, 7 Wis. 442; Ottawa Plank Road v. Mur- 
 ray, 15 111. 336. Contra, Tiernan v. Hinman, 16 111. 400. A failure 
 to pay the interest payments due on the mortgaged debt, is generally 
 sufficient ground to foreclose. Long Island Loan Co. v. Long Island 
 R. R. Co., 178 N. Y. 588, 70 N. E. Rep. 1102. But see, as to waiver 
 of interest payments, Lawrence v. Ward (Utah, 1904), 77 Pac. Rep. 
 229. Where there is a default as to part of the mortgage debt, the 
 mortgagee is entitled to foreclose as to the debt in default. Land v. 
 May, 84 S. W. Rep. 489. 
 
 317
 
 236 MORTGAGES. [PART I. 
 
 and the possibility of duress and undue influence through the 
 perhaps impecunious condition of the mortgagor, courts of 
 equity look with suspicion upon all such agreements; and if 
 there is any improper advantage taken of his financial em- 
 barrassment, or the transaction is in the slightest degree a 
 hard bargain, the agreement will be annulled, and the mort- 
 gagor permitted to redeem. For that reason the purchase by 
 the mortgagee of the mortgagor's equity of redemption must 
 be conducted with the most scrupulous care, in order to re- 
 move from the transaction all suspicion of fraud. 85 
 
 236. The mortgage debt. There can be no mortgage 
 without a mortgage debt. The debt may be either antece- 
 dent or contemporary, or it may be incurred in the future, 
 the last being known as future advances. 66 All that is re- 
 
 esRussel t'. Southard, 12 How. (U. S.) 139; Trull r. Skinner, 17 
 Pick. 213; Falis r. Conway Ins. Co., 7 Allen, 49; Rice v. Bird, 4 Pick. 
 350; Patterson V. Yeaton, 47 Me. 308; Villa t\ Rodriguez, 12 Wall. 
 323; Lawrence r. Stratton, 6 Cush. 163; Holdridge v. Gillespie, 2 
 Johns. Ch. 30 ; Carpenter v. Carpenter, 70 111. 457 ; Baugher v. Merry- 
 man, 32 Md. 185; Locke v. Palmer, 26 Ala. 312; Shubert V. Standley, 
 52 Ind. 46; Waters r. Randall, 6 Mete. 479; Greene r. Butler, 26 Cal. 
 602; Henry r. Davis. 7 Johns. Ch. 40; Mills v. Mills, 26 Conn. 'Zi3; 
 Wright r. Bates, 13 Vt. 341. A contract for the purchase by the grantee 
 in a deed absolute in form, but in fact a mortgage, of the equity of re- 
 demption, will not be sustained unless it is in all respects fair, and 
 for an adequate consideration. Faulkner v. Cody, 91 N. Y. Sup. 633, 
 45 Misc. Rep. 64; Oliver v. Cunningham, 7 Fed. Rep. 689; Locke r. 
 Palmer, 26 Ala. 312; Sheckell V. Hopkins, 2 Md. Ch. 89; Hyndman v. 
 Hyndman, 19 Vt. 9, 46 Amer. Dec. 171. Where a mortgagee has ob- 
 tained from the mortgagor a release of his equity of redemption, the 
 burden is on him to show that he paid for the property what it was 
 worth. Liskey r. Snyder, 49 S. E. Rep. (W. Va.), 515. After the 
 execution of a mortgage, the right of the mortgagee, or beneficiary, in a 
 deed of trust, cannot be prejudiced by any subsequent agreement or 
 conveyance of the mortgagor. N. Y. Merc. Co. r. Thurmond, 186 Mo. 
 410, 85 S. W. Rep. 333; Bloomer v. Burk (Minn. 1904), 101 N. W. Rep. 
 974; Leech r. Karthaus (Ala. 1904), 37 So. Rep. 696. 
 
 See Newkirk r. Newkirk, 56 Mich. 525; Shores v. Doherty, 65 Wis. 
 153; Louisville Bkg. Co. v. Leonard (Ky.), 13 S. W. Rep. 521; 
 V. Habich, 150 Mass. 112; Fessenden v. Taft (N. H.), 17 Atl. Rep. 
 318
 
 OH. XI.] MORTGAGES. 236 
 
 quired is that the debt is sufficiently described and limited in 
 the mortgage, so that it may be recognized and distinguished 
 from other obligations. 67 Ordinarily, parol evidence is inad- 
 missible to show that the parties intended to include in the 
 operation of the mortgage a debt which is not covered by the 
 description. 68 But where the description is not sufficiently 
 particular to make the identification of the debt sure, parol 
 evidence is admissible to connect the debt with the mortgage, 
 and supply the deficiencies of the description. 09 It has also 
 been held that a mortgage, given apparently for a fixed debt 
 already incurred, may be shown to have been intended to se- 
 cure future advances. 70 It is not necessary that the amount 
 of the debt be stated in the mortgage, whether the sum be cer- 
 tain or uncertain. 71 But although the amount need not per- 
 haps be stated in the mortgage, means must be provided in it, 
 by way of reference to other papers or records, for ascertain- 
 ing the amount. Thus mortgages have been held good, where 
 they were intended to secure a general indebtedness, such as, 
 
 67 Robertson v. Stark, 15 N. H. 112; Partridge v. Swazey, 46 Me. 
 414; Hough f. Bailey, 32 Conn. 288; Johns v. Church, 12 Pick. 557; 
 Warner t. Brooks, 14 Gray, 107; Kellogg v. Frazier, 40 Iowa, 502; 
 Paine r. Benton, 32 Wis. 491; Boyd v. Baker, 43 Md. 182; Hughes t?. 
 Edwards, 9 Wheat. 489; Aull V. Lee, 61 Mo. 160; Oilman v. Moody, 43 
 X. H. 329; Ray f. Hallenbeck, 42 Fed. Rep. 381; King v. 
 Kilbride, 58 Conn. 109; Williams V. Silliman, 74 Tex. 626; Walker 
 r. Rand (111.), 22 N. E. Rep. 1006; Bank of Buffalo V. Thompson (N. 
 Y. ). 24 X. E. Rep. 473; Moran v. Gardemeyer, 82 Cal. 96. 
 
 68 Union Xat. Bank v. International Bank, 22 111. App. 652 ; s. c. 123 
 111. 510. 
 
 60 Jackson f. Bowen, 7 Cow. 13; Johns r. Church, 12 Pick. 557; Hall 
 r. Tufts, 18 Pick. 455; Bell t. Fleming, 1 Beasl. 13; Baxter f: Mclntire, 
 13 Gray, 166; Babcock c. Lisk, 57 111. 327; Aull v. Lee, 61 Mo. 160; 
 Crafts V. Crafts, 13 Gray, 168; Shoemaker V. Smith (Iowa), 45 N. W. 
 Rep. 744; McAleer v. McAleer, 31 S. C. 313; Blair v. Harris, 75 Mich. 
 KIT; Mosson v. Creditors, 41 La. An. 296. 
 
 oHuckaba r. Abbott, 87 Ala. 409. 
 
 7i Pike r. Collins, 33 Me. 38; Somersworth Sav. Bk. v. Roberts, 38 
 X. H. 22; Curtis V. Flinn, 46 Ark. 70. Contra, Hart r. Chalker, 14' 
 Conn. 77; Pearce v. Hall, 12 Bush, 209; which hold that where the 
 <ld>t is a certain fixed sum, the amount should be stated. 
 
 319
 
 236 MORTGAGES. [PART I. 
 
 " what I may owe on book," " all the notes or agreements I 
 now owe," " all sums that the mortgagee may become liable 
 to pay," an open book account, and the like. 7 - But a debt 
 must, to at least a reasonable degree, conform to the par- 
 ticulars of the description, in order to be covered by the 
 mortgage. 73 Generally the amount of the advances need not 
 be stated, provided it can be otherwise ascertained by the de- 
 scription. 74 And where the amount is stated, it is taken to 
 be the limit of the principal of the mortgage debt, so that 
 the mortgage would also cover the interest accrued to date of 
 settlement, although the addition of such interest to the 
 principal debt would make the mortgage debt exceed the 
 stipulated amount. 75 But the principal cannot exceed the 
 stipulated amount in any event except as against the mort- 
 gagor. The debt creates a personal obligation, which runs 
 parallel with, but is independent of, the mortgage. The for- 
 
 72 Merrills v. Swift, 18 Conn. 257; Shirras v. Craig, 7 Cranch 34; 
 Seymour r. Darrow, 31 Vt. 142; Vanmeter v. Vanmeter, 3 Gratt. 148; 
 Fisher r. Otis, 3 Chand. 83; DeMott i: Benson, 4 Edw. Ch. 297; U. 
 S. r. Stitrges, 1 Paine, 525; Esterly v. Purdy, 50 How. Pr. 350; Emery 
 V. Owings, 7 Gill, 488; Barker v. Barker, 62 N. H. 366; Farr r. Dox- 
 tater, 9 X. Y. S. 141. 
 
 "Doyle v. White, 26 Me. 341; Storms r. Storms, 3 Bush, 77; Walker 
 r. Paine, 31 Barb. 213; Hall V. Tufts, 18 Pick. 455; Babcock v. Lisk, 
 57 111. 327; Walker v. Rand (111.), 22 N. E. Rep. 1064; Bank of Buf- 
 falo v. Thompson (N. Y. ), 24 N. E. Rep. 473; Moran v. Gardemeyer, 
 82 Cal. 96. But see Baxter V. Mclntire, 13 Gray, 168. In Maryland 
 and New Hampshire, there are statutes requiring the amount of the 
 debt intended to be secured, to be stated in the mortgage. Pub. Lien 
 Laws (Md. 1860), art. 64, Sec. 2; Gen. Stats. N. H. 253; and where 
 the mortgage is for future advances, the amount must be limited. Wil- 
 son v. Russell, 13 Md. 494; Leeds v. Cameron, 3 Sumn. 488; Bank of 
 Willard, 10 N. H. 210. 
 
 T* Allen r. Lathrop. <?f> Ga. 133; Crane v. Deming, 7 Conn. 387; U. 
 S. r. Hooe, 3 Cranch, 73; Shirras v. Craig, 7 Cranch, 34; Hughes V. 
 Woley, 1 Bibb, 200; Farr r. Doxtater, 9 N. Y. S. 141, and other cases 
 cited sr.pra. 
 
 7s Stafford V. Jones, 91 N. C. 189. 
 
 76 Louisville Bkg. Co. v. Leonard (Ky.), 13 S. W. Rep. 521; Wagner 
 v. Breed (Neb), 46 N. W. Rep. 286. 
 320
 
 CH. XI.] MORTGAGES. 236 
 
 raer obligation depends upon the privity of contract, and 
 binds only the mortgagor and his personal representatives. 
 The latter is an obligation in rem, resting upon the privity of 
 estate in the mortgaged land, and binds the land into who- 
 soever hands it may come. But for the support of the mort- 
 gage, the personal obligation need not exist; that is, the debt 
 need not, independently of the mortgage, be enforceable at 
 law. Thus a mortgage by husband and wife of the wife's 
 lands, to secure the note of the wife, would be good, even 
 though the wife's contracts are held to be otherwise abso- 
 lutely void. 77 And so, likewise, is a mortgage valid, al- 
 though the debt can no longer be enforced, because after the 
 death of the mortgagor, it was not probated under the call 
 of the mortgagor's personal representatives. 78 So also is the 
 mortgage good if the Statute of Limitations has run against 
 the debt. 79 And it may be stated generally, that the personal 
 liability of the mortgagor for the mortgage debt is not essen- 
 tial to the validity of the mortgage, although its absence may 
 constitute a circumstance from which it might be inferred 
 that the transaction was intended to be a conditional sale, 
 
 7 7 Bucklin V. Bueklin, 1 Abb. Pr. 242; see contra, Heburn v. Warner, 
 112 Mass. 271; 17 Am. Rep. 86; Taylor v. Page, 6 Allen, 86; Crocker 
 
 T. Holmes, 55 Me. 105; 20 Am. Rep. 687; Wyman v. Brown, 50 Me. 
 150; Hoffey v. Carey, 73 P. St. 433; Neimcewitz v. Sohn, 3 Paige, 643; 
 
 Story's Eq. Jur., Sec. 1399; Brigham V. Potter, 14 Gray, 522. 
 
 78 Hodger v. Taylor (Ark), 13 S. W. Rep. 129. 
 
 7 Thayer v. Mann, 19 Pick. 537 ; Hughes v. Edwards, 9 Wheat. 489 ; 
 Wood v. Augustine, 61 Mo. 46; Kellar v. Sinton, 14 B. Mon. 307; 
 Hough v. Bailey, 32 Conn. 288; Birnie V. Main, 29 Ark. 591; Nevitt V. 
 Bacon, 32 Miss. 212; Waltermire v. Westover, 14 N. Y. 20; Heyer v. 
 Pruyn, 7 Paige, 465; Crooker v. Holmes, 65 Me. 105; Capehart v. 
 Dettrich, 91 N. C. 344; Rodriguez v. Hayes, 96 Tex. 225; Benton Co. v. 
 Czarlinski (Mo.), 14 S. W. Rep. 114. Contra, Lord v. Morris, 18 Cal. 
 482; Duty v. Graham, 12 Texas, 427; Gower v. Winchester, 33 Iowa, 
 303; Chick 17. Willetts, 3 Kan. 384; Hagan v. Parsons, 67 111. 170. 
 This rule has been changed, in Missouri, by statute and in that State, 
 after the debt is barred, by limitation, no action will lie to foreclose 
 the mortgage. R. 8. Mo. 1899, Sec. 4276. 
 
 21 321
 
 236 MORTGAGES. [PART I. 
 
 instead of a mortgage. 80 It is usual for the debt to be con- 
 tained in a separate writing as a bond or note ; but that is not 
 necessary, since the acknowledgment of the debt in the mort- 
 gage will be a sufficient compliance with the provisions of 
 the Statute of Frauds. 81 Nor is it necessary that the recital 
 of the debt in the mortgage should correspond in every re- 
 spect with the instrument of indebtedness. Any immaterial 
 variation would not affect its validity, and if the variance was 
 material, as where the amount was misstated, the mortgage 
 would be good, at least for the amount stated. 82 
 
 so Glagg v. Mann, 2 Sumn. 534 ; Rich v. Doane, 35 Vt. 129 ; Haines 
 V. Thompson, 70 Pa. St. 442; Ball v. Wyeth, 8 Allen, 278; Glover v. 
 Payn, 19 Wend. 518; Holmes v. Grant, 8 Paige Ch. 243; Mills v. 
 Darling, 43 Me. 565; Murphy v. Galley, 1 Allen, 108; Dougherty 0. 
 McColgan, 6 Gill & J. 285; Ferris v. Crawford, 2 Denio, 595; Weed 
 V. Coville, 14 Barb. 242; Salisbury v. Philips, 10 Johns. 57; Elder V. 
 Rouse, 15 Wend. 218; Conway v. Alexander, 7 Cranch, 218; Scott V. 
 Fields, 7 Watts, 360; Miami Ex. Co. v. U. S. Bank, Wright (Ohio), 
 252 ; Drummond f. Richards, 2 Munf. 337 ; Floyer v. Lavington, 1 P. 
 Wms. 268; King v. King, 3 P. Wms. 258; Mitchell v. Burnham, 44 Me. 
 286. 
 
 81 Where there is no separate obligation to pay the debt, in order 
 that there may be a personal liability upon the mortgagor, the mort- 
 gage must contain a covenant for payment, or at least an acknowledg- 
 ment of the existence of the debt. Brown V. Cascaden, 43 Iowa, 103; 
 Elder v. Rouse, 15 Wend. 218; Yates V. Aston, 4 Q. B. 182; Smith i;. 
 Rice, 12 Daly, 307; Frank V. Pickle, 2 Wash. 55; Baum v. Tompkin, 
 110 Pa. St. 569. 
 
 82 Russell f. Southard, 12 How. (U. S.) 139; Mitchell V. Barnham, 
 44 Me. 246; Brookings v. White, 49 Me. 483; Brown V. Dewey, 1 
 Sandf. Ch. 56; Jaques v. Weeks, 7 Watts, 268; Wharf v. Howell, 5 
 Bing. 499; Rice v. Rice, 4 Pick. 349; Whitney V. Buckman, 43 Cal. 
 536. As to variations, see Cushman v. Luther, 53 N. H. 562 ; Hough 
 v. Bailey, 32 Conn. 289; Kimball v. Myers, 21 Mich. 276; Stoddart V. 
 Hart, 23 N. Y. 556; Large V. Doren, 14 N. J. Eq. 203, and cases 
 cited supra, preceding note. The acceptance of a new mortgage and 
 note, in renewal of an older note and mortgage, is held to be a com- 
 plete discharge of the older debt, in Missouri. Benton Land Co. r. 
 Zeitner, 182 Mo. 251, 81 S. W. Rep. 193. But see, White v. Steven- 
 son, 144 Cal. 104, 77 Pac. Rep. 828. When a note, secured by a mort- 
 gage, is declared void, the mortgage is also void. Ft. Wayne Co. tv 
 Sihler (Ind. 1904), 72 N. E. Rep. 494. A mortgagor who still retar ., 
 
 322
 
 CH. XI.] MORTGAGES. 237 
 
 237. Mortgages for the support of the mortgagee. There 
 is a class of mortgages which, instead of being given as se- 
 curity for the payment of a debt, are conditioned to provide 
 and secure the support of the mortgagee or some other per- 
 son. The obligation to support, unless it is imposed upon all 
 claiming under the mortgagor, is a personal one, and will 
 prevent his alienation of the mortgaged premises, or their 
 sale under execution, except by the consent of the mort- 
 gagee. 83 Neither is the mortgagee's interest assignable, for 
 the benefit derived from the mortgage is of a personal na- 
 ture. 84 If the mortgagor fails to perform the condition 
 through his inability to furnish the support, he may redeem 
 the land by the payment of a sum of money, which would be 
 equivalent to the support to be rendered. 85 Usually the mort- 
 
 his ownership of the mortgaged property may make a valid contract of 
 extension of the original mortgage, which will be binding upon a sub- 
 sequent grantee, whether he takes with or without notice of such ex- 
 tension. White r. McMillan, 79 Pac. Rep. 405; George r. Butler, 26 
 Wash. 456, 67 Pac. Rep. 263, 57 L. R. A. 396, 90 Am. St. Rep. 756; 
 Denny V. Palmer, 26 Wash. 469, 67 Pac. Rep. 268, 90 Am. St. Rep. 766; 
 Raymond V. Bales, 26 Wash. 493, 67 Pac. Rep. 269; Hanna f. Kasson, 
 26 Wash. 568, 67 Pac. Rep. 271. 
 
 R3 Bryant v. Erskine, 55 Me. 156; Mitchell v. Burnham, 57 Me. 322; 
 Bethlehem r. Annis, 40 N. H. 34; Brown V. Leach, 35 Me. 41; Eastman 
 f. Batchelder, 36 N. H. 141; Marsh v. Austin, 1 Allen, 235; Wales V. 
 Mellen, 1 Gray, 512; Soper v. Guernsey, 71 Pa. St. 224. But see 
 contra, Ottaquechee Sav. Bank f. Holt, 58 Vt. 166. Until condition is 
 broken, the mortgagor is entitled to possession. Flanders v. Parker, 9 
 N. H. 201; Soper V. Guernsey, supra, and other cases supra. Some- 
 times the condition is in the alternative, to support the mortgagee or to 
 pay a stipulated sum. In that case, the mortgagor has the right to 
 elect within a reasonable time, and both parties are bound by his elec- 
 tion. Bryant r. Erskine, supra; Soper f. Guernsey, supra; Furbish v. 
 Sears, 2 Cliff. 454. 
 
 8* Bethlehem v. Annis, 40 N. H. 34; Bryant V, Erskine, 55 Me. 153. 
 
 so Bryant v. Erskine, 55 Me. 153; Austin v. Austin, 9 Vt. 42; Bethle- 
 hem v. Annis, 40 N. H. 44; Wilder V. Whittemore, 15 Mass. 262; Fisko 
 r Fiske, 20 Pick. 499; Hoyt v. Bradley, 27 Me. 242. But it has been 
 lu-ld that no such right of redemption exists; that where the condition 
 CM 11s for the support of the mortgagee or some other person, the land 
 cannot be redeemed by the payment of a sum of money. Soper r. 
 
 323
 
 -J.'Js MORTGAGES. [ PART I. 
 
 gage specifies the place where the support is to be furnished ; 
 but where it is silent on that subject, the law requires that it 
 should be tendered in some place convenient to both mort- 
 gagor and mortgagee. But if they are residing in the same 
 locality, or on the same land, the mortgagor cannot insist 
 upon supplying it at his own table, or in his own house. 86 
 These mortgages are seldom found in actual practice, and by 
 a reference to the cases cited below it will be observed, that 
 they have obtained a greater prevalence in the New England 
 States than elsewhere. 87 
 
 238. What may be mortgaged. Any vested interest or 
 estate in lands, legal or equitable, 88 is capable of being mort- 
 gaged. An estate for years or for life can be mortgaged as 
 well as the fee. So also can a vendee in possession under a 
 parol or written contract of sale mortgage his interest in the 
 land. 89 And the fact that the land is in the adverse pos- 
 
 Guernsey, 71 Pa. St. 219. See, also, Evans v. Norris, 6 Mich.. 369; 
 Hawkins v. Clermont, 15 Mich. 513; and it is said to rest in the 
 discretion of the court, whether such relief shall be granted. Henry v. 
 Tupper. 29 Vt. 358; Dunklee V. Adams, 20 Vt. 415. Upon the breach 
 of the condition, the mortgagee may enter into possession, until the 
 mortgage is redeemed or foreclosed. Flanders v. Lamphear, 9 N. H. 
 201; Eastman v. Batchelder, 36 N. H. 141. The mortgage may be fore- 
 closed in the same manner as other mortgages. Marsh V. Austin, 1 
 Allen, 235; Daniels v. Eisenlord, 10 Mich. 454. 
 
 so Holmes v. Fisher, 13 N. H. 9; Flanders V. Lamphear, supra; 
 Thayer v. Richards, 19 Pick. 398; Hubbard v. Hubbard, 12 Allen, 586; 
 Fiske v. Fiske, 20 Pick. 499; Powers v. Martin (Vt.), 20 Atl. Rep. 105. 
 
 87 See cases cited in notes 1 and 2, supra. 
 
 88 Morgan v. Field, 35 Kan. 162. 
 
 sLanfair v. Lanfair, 18 Pick. 304; Attorney-General v. Parmort, 5 
 Paige, 620; Hogan v. Brainard, 45 Vt. 294; Phila., etc., R. R. v. 
 Woelpper, 64 Pa. St. 371; 2 Am. Rep. 596; John V. Nut, 19 Wend. 559; 
 Wilson v. Wilson, 32 Barb. 328; Neligh v. Mechenor, 11 N. J. Eq. 53*; 
 Sinclair v. Armitage, 1 Beasl. 174; Baker V. Bishop Hill Colony, 45 
 111. 264; Hosmer v. Carter, 68 111. 98; Van Rensselaer v. Dennison, 35 
 N. Y. 393; Kidd v. Teeple, 22 Cal. 255; Hutchins v. King, 1 Wall. 53; 
 Miller v. Tipton, Blackf. 238; Edwards v. McKernan, 55 Mich. 520; 
 Adams v. Smith, 19 Nev. 259 (estate for years), Balen v. Mercier, 75 
 324
 
 CH. XI.] MORTGAGES. 238 
 
 session of a third person, does not prevent its being mort- 
 gaged as between the parties to it, at least in equity. 90 If 
 the mortgagor is a devisee, who mortgages the land before 
 the claims against the. estate of his devisor have been set- 
 tled, the mortgage is valid, but the mortgagee takes his title 
 subject to these claims. 91 And likewise are the interests of 
 the mortgagor and mortgagee, in whatever light they may 
 be held, possible subjects of a mortgage. Where the mort- 
 gagee conveys the estate by way of a mortgage, his mort- 
 gagee takes it subject to the mortgagor's right to redeem; 
 but in such a case notice to the mortgagor of the second mort- 
 gage by the mortgagee would require the mortgagor to make 
 payment to the sub-mortgagee, so that he might protect his 
 interests against the mortgage. 92 And where the mortgagor 
 mortgages his equity of redemption, the second mortgagee has 
 
 Mich. 42; Gordon V. Avery, 102 N. C. 532. And the mortgage of a 
 vendee's equity under an executory contract of sale, when duly re- 
 corded, can be enforced both against the vendor and his subsequent 
 vendee, notwithstanding the subsequent surrender of the contract to the 
 vendor. Davis v. Davis, 88 Ala. 523. But not when the vendee has 
 never had possession. See Bright V. Buckman, 39 Fed. Rep. 243 ; Gor- 
 don V. Avery, 102 X. C. 532. But a mere possibility, not coupled with 
 an interest, or a personal right, such as the right of pre-emption, cannot 
 be made the subject of a mortgage. Skipper v. Stokes, 42 Ala. 255 ; 
 Bayler v. Commonwealth, 40 Pa. St. 37. Generally, " whatever can be 
 sold, can also be mortgaged." Talman v. Casualty Co., 90 Mo. App. 
 274; Low V. Pew, 108 Mass. 347; Purcell v. Mather, 35 Ala. 570; 
 Penn v. Ott, 12 La. An. 233; Gilbert v. Perm, 12 La. An. 235. The 
 right of a beneficiary of sharing in the proceeds of sale of the land can- 
 not be mortgaged. Wood v. Reeves, 23 S. C. 382. But land held by 
 right of pre-emption may be mortgaged in California. Whitney V. 
 Buckman, 13 Cal. 536; Henderson V. Grammar, 66 Cal. 232. 
 
 o Hall v. Westcott, 15 R. I. 373. 
 
 i Shaw r. Barksdale, 25 S. C. 204. 
 
 82 Henry r. Davis, 7 Johns. Ch. 40; Johnson v. Blydenburgh, 31 N, 
 Y. 432; Murdock v. Chapman, 9 Gray, 156; Coffin v. Loring, 9 Allen, 
 154; Slee v. Manhattan Co., 1 Paige, 48; Solomon v. Wilson, 1 Whart, 
 241; Brown r. Tyler. 8 Gray, 135; Harrison V. Burlingame, 48 Hun, 
 212; Hidden v. Kretschmar, 37 Fed. Rep. 465; Murray v. Porter, 26 
 Neb. 288. 
 
 325
 
 238 MORTGAGES. [PART I. 
 
 all the rights of the first mortgagee, except that he can only 
 satisfy his debt out of the mortgaged property after the 
 prior mortgagee has received payment in full. 98 The fran- 
 chise of a railroad corporation can -be mortgaged, and the 
 mortgage will cover whatever real property may be acquired 
 by the corporation after the execution of the mortgage, and 
 used in the exercise of the franchise. Whether the rolling 
 stock of a railroad will pass with a mortgage of its franchise 
 depends upon the further question, whether such property is 
 held to be real or personal ; in regard to which the courts have 
 rendered contrary decisions. If the rolling stock is consid- 
 ered to be realty, it will pass with the mortgage, otherwise it 
 will not." 
 
 3Garza v. Howell (Tex. 1904), 85 S. W. Rep. 461; Dickinson v. 
 Duckworth (Ark. 1905), 85 S. W. Rep. 82. 
 
 < Pierce V. Emery, 32 N. H. 484 ; Hoyle v. Plattsburg, etc., R. R., 
 54 N. Y. 314; Willink V. Morris Canal, 3 Green Ch. 377; Galveston R. 
 R. r. Cowdrey, 11 Wall. 481; Dunham v. Railway Co., 1 Wall. 254; 
 Rennock v. Coe, 23 How. (U. S.) 117; Benjamin v. Elmira, etc., R. R. 
 Co., 54 N. Y. 675; Howe V. Freeman, 14 Gray, 566; Morrill v. Noyes, 
 56 Me. 458; Emerson v. European, etc., R. R., 67 Me. 387; 24 Am. Rep. 
 39; Sillers V. Lester, 48 Miss. 513; Phillips v. Winslow, 18 B. Mon. 
 431; Brown V. Sharpe's Rifle Co., 29 Conn. 282; Phila., R. R. v. 
 Woelpper, 64 Pa. St. 366; 3 Am. Rep. 596; Chew V. Barret, 11 Serg. 
 & R. 389; Parkhurst V. Northern, etc., R. Co., 19 Md. 472. But only 
 so much of the franchise will pass to the mortgagee, as is necessary 
 to make the grant beneficial to him. Eldridge v. Smith, 34 Vt. 484. 
 As to whether rolling-stock is real or personal property, see ante, 
 Sec. 2. For equitable right of mortgagee to enforce his lien upon 
 property not in esse, as ungrown corn, see, Swinney v. Gontz, 83 Mo. 
 App. 549. 
 
 326
 
 SECTION II. 
 
 THE RIGHTS AND LIABILITIES OF MORTGAGORS AND MORTGAGEES. 
 
 SECTION 239. The mortgagor's interest. 
 
 240. The mortgagee's interest. 
 
 241. Devise of the mortgage. 
 
 242. Merger of interests. 
 
 243. Possession of mortgaged premises. 
 
 244. Special agreements in respect to the possession. 
 
 245. Rents and profits. 
 
 246. Mortgagee's liability for rents received. 
 
 247. Tenure between mortgagor and mortgagee. 
 
 248. Insurance of the mortgaged premises. 
 
 249. Assignment of the mortgage. 
 
 250. Common-law assignment. 
 
 251. Assignment under the lien theory. 
 
 252. Assignment of the mortgagor's interest. 
 253. Rights and liabilities of assignees. 
 
 254. Effect of payment or tender of payment. 
 
 255. Who may redeem. 
 
 256. What acts extinguish the mortgage. 
 
 257. The effect of a discharge. 
 
 258. When payment will work an assignment. 
 
 259. Registry of mortgages, and herein of priority. 
 
 260. Rule of priority from registry, its force and effect. 
 
 261. Registry of assignments of mortgages and equities of 
 
 redemption. 
 
 262. Tacking of mortgages. 
 
 263. Priority in mortgages for future advances. 
 
 264. Satisfaction of the mortgage on the records. 
 
 239. The mortgagor's interest. Whatever may be the 
 view taken in any particular State of the character of a mort- 
 gage, whether it is construed as a conveyance of an estate in 
 lands, or only the grant of a lien, the mortgagor's interest 
 before condition broken is a legal estate, the only difference 
 being, that under the common-law theory of the mortgage, it 
 
 327
 
 $ 239 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 is an estate in reversion, or more strictly a possibility of 
 reverter, while under the lien theory it is a present vested 
 estate, only liable to be destroyed by the enforcement of the 
 lien. It is subject to the same rules of conveyance and de- 
 scends to the heirs as any other kind of real estate. 05 And it 
 may be stated as a general proposition that, except as against 
 the mortgagee, he is clothed with all the rights and liabilities 
 which are usually incident to an estate in lands. 90 Upon the 
 
 5 Co. Lit. 205 a, Butler's note, 96; Thome v. Thome, 1 Vern. 141; 
 Casborne v. Scarfe, 1 Atk. 606; Ledyard v. Butler, 9 Paige Ch. 132; 
 Baxter v. Dyer, 5 Ves. 656; Huckins v. Straw, 34 Me. 166; Orr v. 
 Hadley, 36 N. H. 575; White v. Rittenmyer, 30 Iowa, 272; Wright v. 
 Rose, 2 Sim. & S. 323; Bourne V. Bourne, 2 Hare, 35; Bigelow V. Wil- 
 son, 1 Pick. 485. 
 
 Willington V. Gale, 7 Mass. 138; Blaney v. Pearce, 2 Greenl. 132; 
 Felch v. Taylor, 13 Pick. 133; Bird v. Decker, 64 Me. 550; Collins v. 
 Torry, 7 Johns. 278; Schuykill Co. V. Thoburn, 7 Serg. & R. 411; 
 Hitchcock v. Harrington, 6 Johns. 290; Clark v. Reyburn, 1 Kan. 281. 
 Trustees of Donations v. Streeter, 64 N. H. 106 ; Tilden v. Greenwood, 
 149 Mass. 567. Except as against the mortgagee and his privies, the 
 mortgagor may maintain actions to recover possession or to recover 
 damages for waste. Huckins 1). Straw, 34 Me. 166 ; Stinson v. Ross, 
 51 Me. 556; Den v. Dimon, 5 Halst. 156; Bird v. Decker, 64 Me. 550; 
 Woods v. Hildebrand, 46 Mo. 284; 2 Am. Rep. 513; Pueblo, etc., Valley 
 R. R. Co. . Beshoar, 8 Col. 32. In Meyer v. Campbell, 12 Mo. 603, 
 it was held that ejectment will not lie by the mortgagor after the 
 breach of the condition. And where the mortgagee has taken posses- 
 sion, an action for waste cannot be maintained by the mortgagor, un- 
 less the inheritance has been injured by the trespass. Sparhawk r. 
 Bagg, 16 Gray, 583. And an action by the mortgagee for trespass is a 
 bar to a similar action for the same offense by the mortgagor. James 
 V. Worcester, 141 Mass. 361. The mortgagor's widow has dower in 
 the equity, if she has not released her dower in the land, and may re- 
 deem the land from the mortgagee. Titus v. Neilson, 5 Johns. Ch. 452 ; 
 Van Duyne v. Thayre, 14 Wend. 233; Hawley v. Bradford, 9 Paige Ch. 
 200; Snow v. Stevens, 15 Mass. 278; Eaton v. Simonds, 14 Pick. 98; 
 McCabe v. Bellows, 7 Gray, 148; see post, Sec. 255. The mortgagee, or 
 trustee, in Missouri, is held to take the legal title, for purposes of se- 
 curity, in all cases where the deed or mortgage purports to convey the 
 estate. Markwell V. Markwell, 157 Mo. 326, 57 S. W. Rep. 1078; 
 Mathews V. Mo. Pac. Co., 142 Mo. 645, 44 S. W. Rep. 802. But see, 
 Dickerson v. Bridges, 147 Mo. 235, 48 S. W. Rep. 825; Pence v. Gab- 
 bert, 70 Mo. App. 201. 
 328
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 230 
 
 breach of the condition, under the common-law theory that 
 the mortgage conveyed a defeasible estate, the estate became 
 absolute in the mortgagee, leaving nothing in the mortgagor 
 but the equitable right to redeem the estate. This was called 
 the equity of redemption. It was no estate in the land, sim- 
 ply an equitable right to regain the legal estate. At com- 
 mon law, therefore, the interest of the mortgagor after con- 
 dition broken, although still considered real estate and 
 descendible to the heirs of the mortgagor, and capable of 
 alienation by the usual methods, could not be levied upon by 
 creditors. But in this country at the present day the equity 
 of redemption is generally held to have all the characteris- 
 tics and qualities of a legal estate, and this too in those States 
 whose courts still cling to the common-law theory of mort- 
 gages. The equity is now generally subject to levy and sale 
 under execution. 97 
 
 7 It is liable for debts. Gushing V. Hurd, 4 Pick. 253 ; Febeiger 1?. 
 Craighead, 4 Ball. 151; Perrin v. Read, 35 Vt. 2; Grace V. Mercer, 10 
 B. Mon. 157; Crow V. Tinsley, 16 Dana, 402; Waters v. Stewart, 1 
 Caines' Cas. 47; Fernald v. Linscott, 6 Greenl. 234; Huntington v. Cot- 
 ton, 31 Miss. 253; Wiggin V. Heyward, 118 Mass, 514; Hall v. Tun- 
 nell, 1 Houst. 320; Van Nesa v. Hyatt, 13 Pet. 294; Jackson v. Willard, 
 4 Johns. 41 ; Bosse V. Johnson, 73 Tex. 608. At common law, it was 
 not subject to levy and sale under execution, although perhaps always 
 liable in equity. Plunkett V. Penson, 2 Atk. 290; Forth . Norfolk, 5 
 Madd. 504; Van Ness v. Hyatt, 13 Pet. 294; Hill v. Smith, 2 McLean, 
 446. But in most of the States the courts have either by their ad- 
 judications assumed that it was a common-law right, or the right 
 has been expressly given by statute. Statutes have been passed in Ala- 
 bama, Connecticut, Florida, Hlinois, Massachusetts, Mississippi, Maine, 
 North Carolina, South Carolina and several other States. 2 Washburn 
 on Real Prop. 163. But the mortgagee cannot reduce the mortgage-debt 
 to judgment, and levy upon the equity of redemption. Lyster V. Dol- 
 land, 1 Ves. 431; Washburn v. Goodwin, 17 Pick. 137; Atkins v. Sawyer, 
 1 Pick. 351; Palmer V. Foote, 7 Paige Ch. 437; 2 N. Y. Rev. Stat. 368; 
 Goring v. Shreve, 7 Dana, 67; Deaver v. Parker, 2 Ired. Eq. 40; Camp 
 v. Coxe, 1 Dev. & B. 52; Tice v. Annin, 2 Johns. Ch. 125; Parker v. 
 Bell, 37 Ala. 358; Duck v. Sherman, 2 Dougl. (Mich.) 176; Baldwin V. 
 Jenkins, 23 Miss. 206; Waller v. Tate, 4 B. Mon. 529; Hill v. Smith, 
 9- McLean, 446. Contra, Porter v. King, 1 Me. 297; Trimm v. Marsh, 58 
 
 329
 
 240 RIGHTS OF MORTGAGOR AND MORTGAGEE. [PART I. 
 
 240. The mortgagee's interest. Under the common-law 
 theory, the mortgagee has the freehold estate both before and 
 after the breach of the condition. Before, it is a defeasible 
 estate, and after, an absolute estate. His interest, therefore, 
 was a legal estate ; it descended to his heirs, and required the 
 same formalities of conveyance. 08 But under the lien theory 
 he is said to have only a chattel interest, until foreclosure. 
 The mortgage is not real estate ; it is personal property, which 
 descends with the debt to the personal representatives. And 
 now the equity rule substantially prevails, whether the mort- 
 gagee's interest is considered real estate or personal prop- 
 erty, and after his death the mortgagee's personal repre- 
 sentatives exercise all his rights under the mortgage, a re- 
 lease or conveyance by the heir having no effect upon the 
 rights of the personal representatives. The heir takes the 
 mortgage as trustee for the personal representatives." If a 
 
 >i. Y, 599; 13 Am. Rep. G23; Crocker V. Frazier, 52 Me. 406; Freeby V. 
 Tapper, 15 Ohio, 467; Pierce v. Potter, 7 Watts, 475. But if the 
 mortgage-debt has been assigned to a bona fide holder, without the 
 mortgage, such assignee may levy upon the equity of redemption. 
 Crane r. Marsh, 4 Pick. 131; Andrews v. Fisk, 101 Mass. 424; Waller 
 r. Tate, 4 B. Mon. 529. And it has also been held that the first mort- 
 gagee may levy upon the equity of redemption from the second mortgage. 
 Johnson r. Stevens, 1 Cush. 431. See also, Collins v. Davis, 132 N. C. 
 106, 43 S. E. Rep. 579; Rotschild V. Lumber Co., 139 Ala. 571, 36 So. 
 Rep. 785; Lest v. Armbruster, 143 Cal. 663, 77 Pac. Rep. 653. 
 
 s 2 Washburn on Real Prop. 36, 97 ; Co. Lit. 205 a, Butler's note, 96 ; 
 Jones on Mort., Sees. 11-59; see ante, Sec. 222; Williams on Real 
 Prop. 422. The mortgagee's title is in the nature of a base, or 
 qualified fee, the term of its existence being measured by the existence 
 of the mortgage debt. When the debt is paid, or barred, the title of 
 the mortgagee is determined, by operation of law. Bradley v. Light- 
 cap, 195 U. S. 2-4, 49 L. Ed. 65; Lightcap V. Bradley, 186 111. 510, 
 58 X. E. Rep. 221; Esker v. Heffernan, 159 111. 38, 41 N. E. Rep. 1113. 
 
 Connor v. Whitmore, 52 Me. 185; Collamer v. Langdon, 29 Vt. 
 32; Taft V. Stevens, 3 Gray, 504; Douglas v. Darin, 57 Me. 121; Kinna 
 r. Smith, 2 Green Ch. 14; Dewey v. Van Deusen, 4 Pick. 19; Jack- 
 son r. Delancy, 11 Johns. 365; s. c. 13 Johns. 535; Chase v. Lockerman, 
 11 Gill & J. 185; Barnes v. Lee, 1 Bibb. 526; White V. Rittenmeyer, 
 30 Iowa, 272; Richardson V. Hildreth, 8 Cush. 225; Webster v. Calden, 
 330
 
 CH. XI.] RIGHTS OF MORTGAGOR AXD MORTGAGEE. 242 
 
 statute prohibits foreign corporations from lending money 
 within the State, such corporations cannot acquire any valid 
 interest in a mortgage, as a mortgagee. Such a mortgage 
 would be void. 1 
 
 241. Devise of the mortgage. It has been held that a 
 general devise in terms of lands, tenements and heredita- 
 ments, in the absence of any other evidence of intention, will 
 be construed to cover the mortgages owned by the devisor. 2 
 But those decisions are from the English courts, which sustain 
 the common-law theory of mortgages, and it is to be supposed 
 that in the States, in which the lien theory has been more or 
 less followed, a different conclusion would be reached. 3 
 
 242. Merger of interests. The interests of the mortgagor 
 and mortgagee are not separate and distinct titles to the land. 
 They constitute together the one title, which can alone be 
 predicated of property. When, therefore, the two interests 
 unite in one person, the lesser or subordinate interest will 
 generally merge in the greater, and be extinguished. The 
 
 56 Me. 204; Haskins v. Hawkes, 108 Mass. 379; Palmer tf. Stevens, 11 
 Cush. 147; George v. Baker, 3 Allen, 326; Green v. Hunt, Cooke 
 (Tenn.), 344; Demarest v. Wynkoop, 3 Johns. Ch. 145. And the 
 trustee in a deed of trust has practically the same powers that a 
 mortgagee usually possesses. Robeson r. Dunn (S. D. 1903), 96 N. W. 
 Rep. 104; Old Colony Trust Co. v. Wichita, 123 Fed. Rep. 762. The 
 heirs of a wife, who has permitted the title to stand in her husband's 
 name, take subject to a mortgage, executed by him, in Missouri. 
 Johnston v. Johnston, 173 Mo. 91, 73 S. W. Rep. 202, 61 L. R. A. 166. 
 
 1 Farrior v. New Eng. Mortgage, etc., Co., 88 Ala. 275. Generally, 
 only the State, in a direct proceeding, can object to a violation of a 
 State statute, by a corporation. Life Ins. Co. v. Smith, 117 Mo. 261. 
 And unless the act makes the violation of the statute void, the con- 
 tract is valid. Cowell v. Colo. Spgs. Co., 100 U. S. 55, 25 L. Ed. 549. 
 
 2 Jackson v. Delancey, 13 Johns. 553-559; Winn v. Littleton, 1 Vern. 
 4; Galliers v. Moss. 9 B. & C. 267; Braybroke r. Inskip, 8 Ves. 417 n; 
 Co. Lit. 205 a, Butler's note, 96; contra, Casborne v. Scarfe, 1 Atk. 
 605; Atty.-Gen. v. Vigor, 8 Ves. 276; Strode v. Russell, 2 Vern. 625; 
 Wilkins . French. 20 Me. 111. 
 
 a Moore v. Cornell. 69 Pa. St. 3. 
 
 331
 
 242 RIGHTS OF MORTGAGOR AND MORTGAGEE. [PART I. 
 
 mortgagee's interest would be lost in the mortgagor's. But 
 to effect a merger of interests, they must come together in 
 one person at the same time, and in the same character or ca- 
 pacity. A conveyance of the equity to a trustee of the mort- 
 gagee, or to the mortgagee as trustee of another, would, in 
 neither case, cause a merger. 4 It is also a general rule in 
 equity that the union of the two estates in one person will not 
 be permitted to work a merger, where from the circumstances, 
 an injury would result to parties interested in either. The 
 existence of an outstanding second mortgage would prevent 
 a merger in the hands of a person holding the first mort- 
 gage and the equity of redemption. 5 But if the senior mort- 
 
 * Hunt r. Hunt, 14 Pick. 384; James c. Morey, 2 Cow. 246; Barnett 
 r. Denniston, 5 Johns. Ch. 35; Stantons v. Thompson, 49 N. H. 272; 
 Burhans v. Hutchinson, 25 Kan. 625, 37 Am. Rep. 274; Gregory . 
 Savage, 32 Conn. 264; Shin V. Fredericks, 56 111. 443; Warren v. War- 
 ren, 30 Vt. 530 ; Clary v. Owen, 15 Gray, 525 ; Bean v. Boothby, 57 Me. 
 295; Purdy v. Huntington, 42 N. Y. 334, 1 Am. Rep. 532; Barker v. 
 Flood, 103 Mass. 474 ; Model Lodging House Assn. v. City of Boston, 
 114 Mass. 133; Pratt v. Bank of Bennington, 10 Vt. 293; Champney, 
 r. Coope, 32 N. Y. 543; Sherman f. Abbott, 18 Pick. 448; Bailey v. 
 Richardson, 15 E. L. & E. 218; Dickason r. Williams, 129 Mass. 182, 
 37 Am. Rep. 316; Thomas v. Simmons, 103 Ind. 538; Bredenberg v. 
 Landrum (S. C.), 10 S. E. Rep. 956; Collins r. Stocking, 98 Mo. 290. 
 The purchase, by a husband, of a mortgage, given by his wife, on her 
 separate estate, is not merged in the legal estate of the husband, exist- 
 ing when the mortgage was given. Skinner v. Hale, 76 Conn. 223, 56 
 Atl. Rep. 524. Nor is the mortgage debt, paid by a wife, out of her 
 separate estate, merged in her life estate, that she acquires on the 
 death of her husband, but the debt can be enforced by her, against the 
 premises. Warner v. York, 25 Ohio Cir. Ct. 310. 
 
 5 Wade v. Howard, 6 Pick. 492; s. c. 11 Pick. 289; Evans v. Kimball, 
 1 Allen, 240 ; Cook v. Brightly, 46 Pa. St. 439 ; Frazee r. Inslee, I Green 
 Ch. 239; Grover v. Thatcher, 4 Gray, 526; Bell v. Woodward, 34 N. H. 
 90; Hill r. Pixly, 63 Barb. 200; Warren v. Warren, 30 Vt. 530; Land 
 v. Lane, 8 Mete. 517; Lyon v. Mcllvaine, 24 Iowa, 9; New England 
 Jewelry Co. r. Merriam, 2 Allen, 390; Stantons r. Thompson, 49 N. H. 
 272; Green v. Currier, 63 N. H. 563; Cohn r. Hoffman, 45 Ark. 376; 
 Hospes r. Ahnstedt, 83 Mo. 473; Georgia Chemical Works r. Cart- 
 ledge, 77 Ga. 547; Clements v. Griswold, 46 Hun, 377; Scrivner . 
 Dietz, 84 Cal. 295; Williams v. Brownlee (Mo.), 13 S. W. Rep. 1049. 
 332
 
 CH. XI.] RIGHTS OP MORTGAGOR AND MORTGAGE 242 
 
 gagee enters into possession, after the assignment to him of 
 the equity, he is not accountable to the junior mortgagee for 
 the rents. 6 It is an almost universal rule, that equity will 
 keep alive the mortgage in the hands of the holder of the 
 equity whenever its merger would do injury to one in any- 
 way interested therein. Where, however, it is the plain in- 
 tention of the parties, or in no wise injurious to their inter- 
 ests, that a merger should result from the union of the inter- 
 ests, equity will not interfere in their behalf. 7 When a judg- 
 
 Gray v. Nelson, 77 Iowa, 63. Where it is to the interest of a wife 
 to keep alive a mortgage debt, after death of her husband, there is no 
 merger of the mortgage into her life estate, by a payment of the debt. 
 Warner v. York, 25 Ohio Cir. Ct. 310. Where there is an agreement 
 between the holders of the junior and senior mortgages that a purchase 
 of the equity of the mortgagor, under the junior mortgage should not 
 constitute a merger, the payment thereon will not discharge the debt. 
 Continental Title & Trust Co. r. Devlin, 209 Pa. 380, 58 Atl. Rep. 843. 
 Although a husband and wife are the principal stockholders in a cor- 
 poration, a purchase by the corporation of a mortgage on the wife's 
 property, will not amount to a purchase, so as to constitute a merger. 
 Juckett v. Fargo Merc. Co. (S. D. 1905), 102 N. W. Rep. 604. Where 
 one of two joint mortgagors pays off and takes an assignment of the 
 mortgage to himself, the lien of the mortgage is not merged in the fee, 
 where he deeded his interest, subject to the mortgage. Saint v. Corn- 
 wall, 207 Pa. 270, 56 Atl. Rep. 440. 
 
 T Forbes v. Moffat, 18 Ves. 384 ; Gibson v. Crehore, 3 Pick. 475 ; Hunt 
 v. Hunt, 14 Pick. 374; Bell v. Woodward, 34 N. H. 90; St. Paul V. 
 Viscount Dudley and Ward, 15 Ves. 167 ; Grover u. Thatcher, 4 Gray, 
 526; Moore V. Beasom, 44 N. H. 215; Millspaugh v. McBride, 7 Paige 
 Ch. 509; Judd v. Seekins, 62 N. Y. 266; Vanderkemp v. Shelton, 11 
 Paige Ch. 28; Loomer v. Wheelwright, 3 Sandf. Ch. 157; Simonton t'. 
 Gray, 34 Me. 50; Van Wagner v. Brown, 26 N. J. L. 196; Duncan v. 
 Smith, 31 N. J. L. 325; Mallory v. Hitchcock, 29 Conn. 127; Wallace 
 v. Blair, 1 Grant Cas. 75; Brown v. Lapham, 3 Cuah. 551; Eaton t;. 
 Simonds, 14 Pick. 98; James v. Morey, 2 Cow. 285; Savage v. Hall, 12 
 Gray 364; Fletcher 0. Chase, 16 N. H. 42; Weeks v. Ostrander, 52 N. 
 Y. Super. Ct. 512, . c. 15 Abb. N. C. 143; Carpenter v. Gleason, 58 Vt. 
 244; Ann Arbor Sav. Bank v. Webb, 56 Mich. 377; Watson v. Dundee 
 Mortgage, etc., Co., 12 Ore. 474; Clark v. Clark (Wia.), 45 N. W. Rep. 
 121; Newton v. Manwaring, 10 N. Y. S. 347; Shipley v. Fox, 69 Md. 
 572; Citizens Bank v. Hejams (La.), 7 So. Rep. 700; Crombie v. Rosen- 
 bach, 19 Abb. N. C. 312; Christy v. Scott, 31 Mo. App. 331; Cox v. Led- 
 
 333
 
 243 RIGHTS OF MORTGAGOR AND MORTGAGEE. [PART L 
 
 ment in personam is obtained against the mortgagor, on the 
 note or bond which is secured by the mortgage, the note or 
 bond is merged in the judgment, but not the mortgage, 8 and 
 so likewise is there no merger of the judgment in personam, 
 although the mortgage which secures it may become merged. 9 
 
 243. Possession of the mortgaged premises. It is a gen- 
 eral custom in this country, for the mortgagor to retain pos- 
 session until the breach of the condition, and even afterwards 
 it is not usual for the mortgagee to enter into possession until 
 the land has been decreed to him by foreclosure. But in those 
 States where the common-law theory prevails in its full force, 
 the mortgagee may enter into possession at any time after 
 the delivery of the mortgage. He possesses the freehold, and 
 can exercise all the rights of ownership over the land. And 
 if the mortgagor should resist his demand for possession he 
 may bring an action of ejectment for its recovery. 10 But 
 
 ward, 124 Pa. St. 335; Gray v. Nelson, 77 Iowa 63; Mcllhaney v. Shoe- 
 maker, 76 Iowa 416; Belknap v. Dennison, 61 Vt. 520; Collins v. 
 Stocking, 98 Mo. 290; Beeckman V. Butler, 77 Iowa 128; Sanford f. 
 .Van Arsdall, 53 Hun 70. 
 
 sLalanne v. Payne (La.), 7 So. Rep. 481. 
 
 Clark v. Simmons, 55 Hun 175. " That a merger of the lien of the 
 first mortgage would operate to the disadvantage of the mortgagee, 
 there can be no question. If the merger is not allowed to take place, 
 he is, of course, bound to take subject to the second mortgage, in case 
 of a purchase of the equity; but upon a sale he would be entitled to 
 receive out of the proceeds all the money due on the first mortgage, or 
 he could keep the property by paying only the excess it brings over the 
 first mortgage, whereas, if there is a merger, he would be bound to pay 
 the second mortgage in full in order to keep the property he bought, 
 or obtain any of the proceeds of its sale." See also, Hines v. Ward, 
 121 Cal. 118, 53 Pac. Rep. 427; Srivner v. Dietz, 84 Cal. 298, 24 Pac. 
 Rep. 171; Brooks f. Rice, 56 Cal. 428; Rumpp f. Gerkens, 59 Cal. 496; 
 Carpenter f. Brenham, 40 Cal. 221; Henderson v. Grammar, 66 Cal. 335, 
 5 Pac. Rep. 488; Wilson V. White, 84 Cal. 243, 24 Pac. Rep. 114; Tol- 
 man V. Smith, 85 Cal. 289, 24 Pac. Rep. 743 ; Shaffer v. McCloskey, 101 
 Cal. 580, 36 Pac. Rep. 196; Jones on Mortgages, Sees. 870, 873. 
 
 lOErskine v. Townsend, 2 Mass. 493; Goodwin v. Richardson, 11 
 Mass. 473 ; Knox V. Easton, 38 Ala. 345 ; Bradley v. Fuller, 23 Pick. 1 ; 
 334
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 24.'} 
 
 in some of the States, where the common law has been modi- 
 fied in this respect by statute or judicial legislation, the 
 mortgagor is entitled to possession until condition broken, 
 but after condition broken the mortgagee has the right of 
 possession, the same as at common law. 11 In other States, 
 where the lien theory has met with more or less favor, the 
 mortgagee is not entitled to possession until the mortgage is 
 foreclosed and the estate made absolute in the mortgagee. 12 
 
 Page v. Robinson, 10 Gush. 99; Wales V. Miller, 1 Gray 512; Karnes v. 
 Lloyd, 52 111. 113; Howard v. Houghton, 64 Me. 445; Stewart v. Bar- 
 row, 7 Bush 368; Sedman V. Sanders, 2 Dana 68; Treat V. Pierce, 53 
 Me. 77; Sumwalt v. Tucker, 34 Md. 89; Annapolis, etc., R. R., v. Gault, 
 39 Md. 115; Hemphill v. Ross, 66 N. C. 477; Jackson v. Dubois, 4 
 Johns. 216; Jackson V. Hull, 10 Johns. 481; Ellis r. Hussey, 66 N. C. 
 501; Tryon V, Munson, 77 Pa. St. 250; Youngman r. R. R. Co., 65 Pa. 
 St. 278; Den v. Stockton, 12 N. J. L. 322; Shute v. Grimes, 7 Blackf. 
 1; Ely v. McGuire, 2 Ohio 223; Carpenter v. Casper, 6 R. I. 542; Vance 
 r. Johnson, 10 Humph. 214; Faulkner V. Brockenbrough, 4 Rand. 245; 
 Tripe 0. Marcy, 39 N. H. 439; Trustees v. Dickson, 1 Freem. Ch. 474; 
 May c. Fletcher, 14 Pick. 525. And he may likewise have trespass 
 against the mortgagor, even before condition broken, for waste, or for 
 resisting his entry. Smith V. Johns, 3 Gray 517; Northampton Mills 
 f. Ames, 8 Mete. 1; Page V. Robinson, 10 Gush. 99; Newall v. Wright, 
 X Mass. 138; Furbish V. Goodwin, 29 N. H. 321; Clark V. Bench, supra. 
 
 "Cneever v. Rutland & B. R. R., 39 Vt. 653; Sutton r. Mason, 38 
 Mo. 120; Mclntyre V. Whitfield, 13 Smed. & M. 88; Kannady V. Mc- 
 Carron, 18 Ark. 166; Watson v. Dickens, 12 Smed. & M. 608; Reynolds 
 r. Canal & Banking Co. of N. O., 30 Ark. 520; Hall f. Tennell, 1 
 Houst. 320; Reddick v. Gressman, 49 Mo. 389; Pease V. Pilot Knob Iron 
 Co., 49 Mo. 124; Sanderson v. Price, 1 Zab. 646; Shields v. Lozear, 34 
 N. J. L. 496; 3 Am. Rep. 256; Hagar V. Brainerd, 44 Vt. 294; Walker 
 r. King, 44 Vt. 601; Allen v. Everly, 24 Ohio St. 602; Rands v. Ken- 
 dall, 15 Ohio 671. In the following late cases the mortgagor has been 
 held entitled to possession, until breach: Davis V. Polland (1904), 99 
 Me. 345, 59 Atl. Rep. 520; Benton Land Co. v. Zeitler, 182 Mo. 251, 81 
 S. W. Rep. 193; White V. Smith, 174 Mo. 186, 73 S. VV. Rep. 610; Os- 
 tengreu v. Rice, 104 111. App. 428; Watkins v. Kaolin Mfg. Co., 131 N. 
 C. 536, 42 S. E. Rep. 983, 60 L. R. A. 617; Yingling v. Redwine (Okl. 
 1902), 69 Pac. Rep. 810; DuBois v. Bowles (Colo. 1902), 69 Pac, 
 Rep. 1067. 
 
 12 Civil Code Cal., Sec. 2927; Grattan v. Wiggins, 23 Cal. 26; Drake 
 c. Root, 2 Colo. 685; Vaaon c. Ball, 56 Ga. 268; 2 G. & H. Stat. 335
 
 244 RIGHTS OF MORTGAGOR AND MORTGAGEE. [PART I. 
 
 And it has been held in some of the last class of cases, that 
 although the mortgagor is lawfully in possession, and cannot 
 be ejected even after the condition has been broken, yet if he 
 delivers the possession to the mortgagee, he cannot by any 
 action regain it as long as the mortgage is not satisfied. His 
 only remedy is to redeem the mortgage. 18 
 
 244. Special agreements in respect to possession. But the 
 right to possession before foreclosure may be changed by 
 agreement of the parties. If, according to the law, the mort- 
 gagor is entitled to possession, by agreement the mortgagee 
 may be given a right of entry at any time before foreclosure; 
 
 (Ind.) ; Smith v. Parks, 22 Ind. 61; Chase v. Abbott, 20 Iowa 158; 
 Dassler's Stat. Kan. (1876), Ch. 68 Sec. 1; Ducland v. Rousseau, 2 
 La. An. 168; Comp. Laws Mich. (1871) 1775; Gorham v. Arnold, 22 
 Mich. 247; Berthold V. Fox, 13 Minn. 501; Trimm v. Marsh, 54 N. Y. 
 604; Besser v. Hawthorne, 3 Ore. 129; Hughes v. Edwards, 9 Wheat. 
 489; Durand V. Isaacks, 4 McCord 54; Walker v. Johnson, 37 Texas 127. 
 But where the common-law rule has been changed by statute, the 
 statute will not affect the mortgagee's right of possession under 
 mortgages already in existence. The statute will only apply to future 
 mortgages. Blackwood v. Van Fleet, 11 Mich. 252; Morgan V. Wood- 
 ward, 1 Ind. 321; Shaw V. Hoadley, 8 Blackf. 165. 
 
 isHubbell V. Moulson, 53 N. Y. 225; Watson V. Spence, 20 Wend. 
 260; Den v. Wright, 7 N. J. L. 175; Mitchell v. Bogan, 11 Rich. L. 
 681; Hennesy v. Farrell, 20 Wis. 42; Roberts v. Sutherlin, 4 Ore. 219; 
 Frink V. LeRoy, 49 Cal. 314; Eyster v. GafT, 2 Colo. 228; Avery v. 
 Judd, 22 Wis. 262; Newton v. McKay, 30 Mich. 380; Cook v. Cooper, 
 18 Ore. 142; Rodriguez v. Hayes, 76 Tex. 225. In those States where 
 the right of possession is held to be in the mortgagor, before breach 
 of the condition, however, the right is not effected by the fact that 
 the mortgage is in the form of an absolute deed or conveyance. Ying- 
 ling v. Redwine (Okla. 1902), 69 Pac. Rep. 810; DuBois V. Bowles 
 (Colo.), 69 Pac. Rep. 1067. A mortgagee who purchases and goes into 
 possession, under a void foreclosure sale, is none the less a mortgagee 
 in possession, with all the accompanying rights. Investment Co. V. 
 Adams (Wash. 1905), 79 Pac. Rep. 625. In so far as the Illinois stat- 
 ute of 1872, applies to mortgagees in possession, making their title 
 forfeited, if their master's deed be not taken in a specified time, after 
 the expiration of the time for redemption, the statute is held to be 
 void, by the United States Supreme Court, as impairing the obligation 
 of the contract. Bradley V. Lightcap, 195 U. S. 2-4, 49 L. Ed. 65. 
 336
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 245 
 
 and if the mortgagee has by law the right of possession, his 
 right of entry may be restrained until condition broken, or 
 taken away altogether. f If the purposes and the object of the 
 mortgage require the possession to be given to the party not 
 entitled thereto by law, the agreement to vest it in him will be 
 implied from those circumstances. The implication must, 
 however, be a necessary one; otherwise nothing but an ex- 
 press agreement will have that effect. 14 The mortgagor may 
 also agree to pay rent for his occupation of the land during 
 the continuance of the mortgage. In which case the relation 
 of landlord and tenant arises between the mortgagee and 
 mortgagor, and on default in the payment of the rent, the 
 mortgagee could recover the possession. 15 
 
 245. Rents and profits. Whoever is in actual possession 
 is entitled to the rents and profits issuing from the mortgaged 
 
 i* Flagg v. Flagg, 11 Pick. 475; Smith v. Parks, 22 Ind. 61; Norton 
 . Webb, 35 Me. 218; Brown V. Leach, 35 Me. 39; Knox v. Easton, 38 
 Ala. 345; Stewart V. Barrow, 7 Bush 368; Redman v. Sanders, 2 Dan;i 
 68; Brown V. Stewart, 1 Md. Ch. 87; Leighton v. Preston, 9 Gill 201; 
 O'Neill v. Gray, 39 Hun 566; Bryson V. June, 55 N. J. Super. Ct. 374. 
 But the right will not be implied from a silent acquiescence in the 
 mortgagor's possession, or inferred from a clause in the mortgage that 
 the mortgagee shall take possession upon default. Stowell 15. Pike, 2 
 Greenl. 387; Brown V. Cram, 1 N. H. 169; Rogers 15. Grazebrook, 8 
 Q. B. 898. But see Jackson V. Hopkins, 18 Johns. 487. Nor would a 
 parol agreement change the law in reference to the right of possession. 
 Colman V. Packard, 16 Mass. 39. 
 
 is Murray 15. Riley, 140 Mass. 490. It is not of the essence of a 
 mortgage for the mortgagor to remain in possession. Moore 15. Boogin, 
 111 La. 490, 35 So. Rep. 716. Possession delivered to a mortgagee to 
 cut timber to pay taxes will not authorize the cutting of timber for 
 other purposes. Holbrook 15. Greene, 98 Me. 171, 56 Atl. Rep. 659. On 
 taking possession, the mortgagee is not required to give notice to the 
 mortgagor. Ante idem. But a mortgagee in possssion is not, in 
 the absence of agreement, entitled to any compensation for care of 
 property. Moss 15. Odell, 141 Cal. 335; Turner v. Johnson, 95 Mo. 431, 
 7 S. W. Rep. 570; Elmer 15. Loper, 25 N. J. Eq. 475; Blunt 15. Syms, 40 
 Hun 566. But see contra, Gerish V. Black, 104 Mass. 400; Brown v. 
 Bank, 148 Mass. 300, 19 N. E. Rep. 382; Waterman v. Curtis, 20 Com. 
 241. 
 
 22 337
 
 245 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 premises. If it be the mortgagor, he takes them free from 
 any claim on the part of the mortgagee, even where he is in 
 possession by sufferance only, and where the property is not 
 sufficient to satisfy the mortgage debt. 16 And even where the 
 mortgagor is in possession by lawful right, if the property is 
 an insufficient security, the mortgagee may apply for the ap- 
 pointment of a receiver, and the rents and profits accruing 
 thereafter will be applied to the liquidation of the debt. 17 
 But to entitle the mortgagee to the appointment of a receiver, 
 special equitable grounds must be alleged; for example, that 
 the mortgagor is insolvent, and the security insufficient. If 
 the mortgagor is insolvent, or the mortgagee possesses other 
 means of protecting himself, the insufficiency of the mort- 
 gage security will not support an application for a receiver. 18 
 
 IB Boston Bk. v. Reed, 8 Pick. 459; Mayo v. Fletcher, 14 Pick. 525; 
 Kunkle v. Wolfersberger, 6 Watts 131; Noyes V. Rich, 52 Me. 115; Oil- 
 man r. 111. & Miss. Tel. Co., 91 U. S. 603; Johnson v. Miller, 1 Wills 
 416; Gelston v. Burr, 11 Johns. 482; Astor V. Turner, 11 Paige 436; 
 Mitchell v. Bartlett, 52 Barb. 319; Childs V. Hurd, 32 W. Va. 66. It 
 is held in Massachusetts, that if the mortgaged property is not suffi- 
 cient in value to satisfy the debt, after entry to foreclose, the mortgagee 
 may recover of the mortgagor for past use and occupation. Merrill v. 
 Bullock, 105 Mass. 486; Morse v. Merritt, 110 Mass. 458. A trustee 
 who gets possession before foreclosure, must account for rents received. 
 Benton Land Co. r. Zeitler, J82 Mo. 251, 81 S. W. Rep. 193. 
 
 Post r. Door, 4 Edw. Ch. 412; Lofsky v. Maujer, 3 Sandf. Ch. 69; 
 Astor v. Turner, 11 Paige 436; Clason v. Corley, 5 Sandf. Ch. 447; 
 Mitchell r. Bartlett, 51 N. Y. 442; Myers v. Estell, 48 Miss. 372; Doug- 
 lass v. Cline, 12 Bush 608; Child V. Hurd, 32 W. Va. 66. 
 
 !8 Bk. of Ogdensburg v. Arnold, 5 Paige 40; W 7 illiams V. Robinson, 
 16 Conn. 517; Shotwell v. Smith, 3 Edw. Ch. 588; Quincy v. Cheese- 
 man, 4 Sandf. Ch. 405; Cortteyen V. Hathaway, 11 N. J. Eq. 39; 
 Tlackett r. Snow, 10 Ired. 220; Oliver v. Decatur, 4 Cranch C. Ct. 458; 
 Frisbie v. Bateman, 24 N. J. Eq. 28; Williamson V. New Albaby R. Co., 
 1 Biss. 201 ; Whitehead v. Wooten, 43 Miss. 523 ; Pullan v. C. & C. R. 
 R., 4 Biss. 35; First Nat. Bk. v. Gage, 79 111. 206; Morrison v. Buck- 
 ner, 1 Hempst. 442; Syracuse Bk. v. Tallman, 31 Barb. 201. After a 
 refusal of a receiver, the holder of the property is entitled to the rents, 
 until an actual foreclosure. Georgetown Water Co. V. Fidelity Trust 
 Co. (Ky. 1904), 78 S. W. Rep. 113. In the absence of a pledge thereof, 
 a mortgagee has no lien on the rents, in Illinois. West v. Adams, 106 
 338
 
 CH. XI.] RIGHTS OP MORTGAGOR AND MORTGAGEE. 245 
 
 The mortgagee is entitled to a judgment for rents and profits 
 from the date of the decree of foreclosure, or, if he has a 
 right to possession before foreclosure, from his demand for 
 possession, when he follows up such demand either by fore- 
 closure or an action of ejectment. 19 If the mortgagee is in 
 possession he is entitled to the rents and profits accruing 
 after his entry. And where the land has been leased by the 
 mortgagor, the entry of the mortgagee vests in him the right 
 to call upon the lessee to pay the rent to him. 20 If, however, 
 the lease be subject to the mortgage, i. e., executed subse- 
 quently, since there is no privity of estate between the 
 mortgagee and the lessee, either party may consider the lease 
 defeated by the entry, and no rent will become due thereon, 
 if either party should so elect. And any agreement between 
 the parties looking to a continuance of the lease, is in fact a 
 
 111. App. 114. But where a pledge thereof is made, in the mortgage, 
 the mortgagee is entitled to a receiver, regardless of the solvency of 
 the mortgagor. West V. Adams, supra. 
 
 18 Wilder f. Houghton, 1 Pick. 87; Mayo V. Fletcher, 14 Pick. 525; 
 Haven r. Adams, 8 Allen 3G8; Northampton Mills v. Ames, 8 Mete. 1; 
 Hill r. Jordan, 30 Me. 367; Bk. of Washington v. Hupp, 10 Gratt. 23; 
 Forlouf v. Bowlin, 29 111. App. 471; Jones on Mort. 670. This rule 
 naturally can apply only to strict foreclosure, where the mortgagee is 
 not entitled to possession after default. And where in strict fore- 
 closure a certain time is given after the decree, within which the land 
 might still be redeemed, the judgment for rents and profits can only 
 be had after this period of redemption. And where the property is 
 sold under foreclosure, the rents and profits do not accrue to the pur- 
 chaser until the delivery of the deed to him, and perhaps not until he 
 has made a demand for possession under his deed. Clason V. Corley, 5 
 Sandf. Ch. 447; Mitchell v. Bartlett, 52 Barb. 319; Aster v. Turner, 11 
 Paige 436. 
 
 20 West v. Adams, 106 111. App. 114; Sage v. Mendelson, 85 N. 
 Y. S. 1008; DeBona r. Frost (Tex. 1003), 77 S. W. Rep. 637; 
 Smith v. Shepherd, 15 Pick. 147; Stone v. Patterson, 19 Pick. 476; 
 Russell r. Allen, 2 Allen 42; Welch r. Adams, 1 Mete. 494; Hill i\ 
 Jordan, 30 Me. 367; Northampton Mills v. Ames, 8 Mete. 1; Turner v. 
 Cameron, 5 Exch. 932; Pope f. Biggs, 9 B. & C. 245; Bk. of Washing- 
 ton r. Hupp, 10 Gratt. 23. 
 
 339
 
 L'45 BIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 new lease. 21 But where the lease takes precedence to the 
 mortgage, the entry of the mortgagee will not defeat the 
 lease in any event. The mortgagee may, however, compel the 
 lessee to pay to him all rent accruing after entry, which has 
 not been paid over to the mortgagor before the lessee received 
 notice of the execution of the mortgage. But payment to the 
 mortgagor before such notice, even of rent in advance which 
 falls due afterwards, if bona fide, will constitute a good de- 
 fense to any action by the mortgagee. 22 
 
 21 Russell v. Allen, 2 Allen 44; Smith v. Shepherd, 15 Pick. 147; 
 Mayo v. Fletcher, 14 Pick. 525; Watts v. Coffin, 11 Johns. 495; Jones 
 t?. Clark, 20 Johns. 51; Jackson v. Delancey, 11 Johns. 365; Kimball v. 
 Lockwood, 6 R. I. 138; Syracuse City Bk. v. Tallman, 31 Barb. 207; 
 Magill v. Hinsdale, 6 Conn. 464; McKircher v. Hawley, 16 Johns, 289; 
 Hemphill v. Giles, 66 N. C. 512; Pope v. Biggs, 9 B. & C. 245; Doe v. 
 Hales, 7 Bing. 322; Knox V. Easton, 38 Ala. 345; Lane V. King, 8 
 Wend. 584; Lynde v. Rowe, 12 Allen 110; Gartside v. Outley, 58 111. 
 210; 11 Am. Rep. 59; Weaver V. Belcher, 3 East 449; Rogers v. Hum- 
 phreys, 4 A. & E. 299; Higginbotham V. Barton, 11 Ad. & El. 307; 
 Henshaw V. Wells, 8 Humph. 568; Morse V. Goddard, 13 Mete. 177; 
 Field v. Swan, 10 Mete. 177. See Hogsett v. Ellis, 17 Mich. 351: The 
 lessees in a subsequent lease must attorn in order to be liable to the 
 mortgagee. A mere notice to pay rent will not render them liable. 
 But judgment for mesne profits may be had if they continue in pos- 
 session after demand. Kimball v. Lockwood, 6 R. I. 138; Hill v. Jor- 
 dan, 35 Me. 367 ; Northampton Mills V. Ames, 8 Mete. 1 ; Morse v. 
 Goddard, supra; Field V. Swan, supra; Rogers v. Humphreys, supra; 
 Evans V. Elliott, 9 A. & E. 342. But without special agreement the 
 acceptance of rent from . the lessee will not bind the mortgagee to the 
 terms and duration of the original lease. It creates only a tenancy 
 from year to year. Hughes v. Bucknell, 8 C. & P. 566. 
 
 22 Rogers v. Humphreys, 4 Ad. & E. 299 ; Moss v. Gallimore, Dougl. 
 279; Mirick 0. Hoppin, 118 Mass. 582; McKircher v. Hawley, 16 Johns. 
 289; Russell v. Allen, 2 Allen 42; Demarest v. Willard, 8 Cow. 206; 
 Kimball v. Lockwood, 6 R. I. 138; Henshaw v. Wells, 9 Humph. 568; 
 Myers v. White, 1 Rawle 353; Hemphill v. Giles, 66 N. C. 512. See 
 De Nicholls v. Saunders, L. R. 5 C. P. 589; Castleman v. Belt, 2 B. 
 Mon. 157. And although the lease is void, this is no defense to an ap- 
 plication by the mortgagee for a receiver for the rents accruing there- 
 under. De Berrero v. Frost (Tex. 1903), 77 S. W. Rep. 637. 
 
 340
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 246 
 
 246. Mortgagee's liability for rents received. The mort- 
 gagee receives the rents and profits, not in his own right, but 
 as trustee or agent for himself and the mortgagor. After de- 
 ducting the necessary expenses of managing the estate, he 
 must apply them, first, to the liquidation of the accruing in- 
 terest, and then of the principal of the debt. Whatever sur- 
 plus remains he holds in trust for the mortgagor, and all 
 others claiming under him. 23 The mortgagee in possession 
 cannot apply such surplus to the liquidation of any other 
 debts due to him from the mortgagor, except with the lat- 
 ter 's consent. 24 JSut where the mortgagor consents, a judg- 
 ment creditor cannot interpose his objection. 25 If the mort- 
 gagee in possession holds under a second mortgage, it has 
 
 23 Bailey r. Myrick, 52 Me. 136; King v. Ins. Co., 7 Gush. 7; Ten 
 Eyck v. Craig, 62 N. C. 406; Clark v. Bush, 3 Cow. 151; Harrison V. 
 Wyse, 24 Conn. 1; Seaver v. Durant, 39 Vt. 105; Hunt v. Maynard, 6 
 Pick. 489; Thorp, v. Feltz, 6 B. Mon. 6; Breckenridge V. Brook, 2 A. 
 K. Marsh. 335 ; Gibson v. Crehore, 5 Pick. 146 ; Hill t\ Hewitt, 35 Iowa 
 563; Freytag v. Hoeland, 23 N. J. Eq. 36; Anderson V. Lanterman, 27 
 Ohio St. 104; Strang v. Allen, 44 111. 428; Oilman v. Wills, 66 Me. 273; 
 Roulhac v. Jones, 78 Ala. 39.8; Murdock v. Clarke (Cal.), 24 Pac. Rep. 
 272; Caldwell v. Hall, 49 Ark. 508. But the mortgagee is only ac- 
 countable for the rents and profits in equity, and then only as an inci- 
 dent to an action for foreclosure, or for the redemption of the mort- 
 gaged premises. Farrall v. Lovel, 3 Atk. 723; Gordon v. Hobart, 2 
 Story 243 ; Hubbell V. Moulson, 53 N. Y. 225 ; Boston Iron Co. V. King, 
 2 Gush. 400; Seaver v. Durant, 39 Vt. 103; Weeks V. Thomas, 21 Me. 
 465; Givens v. McCalmott, 4 Watts 464; Bell v. Mayor N. Y., 10 Paige 
 49. And where the rents and profits collected by the mortgagee are 
 more than sufficient to satisfy the mortgage debt, and the mortgagee is 
 irresponsible, a receiver may be appointed, pending the action to re- 
 deem, to take charge of subsequently accruing rents. Bolles v. Duff, 
 35 How. Pr. 481; Quinn v. Brithaige, 3 Edw. 314. Until applied 
 by judgment of the court to th^ payment of the debt, there is no legal 
 satisfaction of the mortgage by the receipt of rents and profits to the 
 full amount of the mortgage-debt. Hubbell v. Moulson, 53 N. H. 225, 
 13 Am. Rep. 519; Benton Land Co. . Zeitler, 182 Mo. 251, 81 S. W. 
 Rep. 193; Davis . Pollard (1904), 99 Me. 345, 59 Atl. Rep. 520. 
 
 2< Caldwell v. Hall, 49 Ark. 508; Demick v. Cuddily, 72 Cal. 110. 
 But see, contra, Borel v. Cappeler, 79 Cal. 342. 
 
 25 Whitney v. Paynor, 74 Wis. 289. 
 
 341
 
 246 EIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 been held that he must apply the rents first to the liquidation 
 of the first mortgage debt. 26 But it would seem that the first 
 mortgagee would in that case have no more claim to the 
 rents than he would when the mortgagor is in possession. 
 Although the mortgagee does not, by taking possession of 
 the land, assume the responsibilities of a guarantor of the 
 rents, in the collection of the rent he is under an obligation 
 to use that care, which might be expected from a reasonably 
 prudent man. And if, by reason of his negligence in re- 
 spect thereto, any portion of the rents and profits was lost, 
 he would be held responsible for them to ^he same extent as 
 if he had actually received them. Where he enters into pos- 
 session before the breach of the condition, a much greater de- 
 gree of care is required of him than after the breach. 27 And 
 
 26 Crawford v. Munford, 29 111. App. 445. 
 
 27 Hood v. Easton, 2 Giff. 692; Robertson v. Campbell, 2 Call 421; 
 Hughes v. Williams, 12 Ves. 493; Sparhawk v. Wills, 5 Gray 429; 
 Strong V. Blanchard, 4 Allen 538; Richardson v. Wallis, 5 Allen 78; 
 Saunders v. Frost, 5 Pick. 259; Bernard v. Jennison, 27 Mich. 230; 
 Shaeffer V. Chambers, 5 Halst. 548; Milliken v. Bailey, 61 Me. 316; 
 Van Buren v. Olmstead, 5 Paige Ch. 9; Walsh V. Rutgers Ins. Co., 13 
 Abb. Pr. 33; Barron V. Paulling, 38 Ala. 292; Moore V. Titnian, 44 111. 
 367; Bainbridge v. Owen, 2 J. J. Marsh. 463; Harper v. Ely, 70 111. 
 581; George v. Wood, 11 Allen 42; Hubbard V. Shaw, 12 Allen 122; 
 Givens v. McCalmont, 4 Watts 460; Guthrie v. Kahle, 46 Penn. 333; 
 Gerrish V. Black, 104 Mass. 400; Miller v. Lincoln, 6 Gray 556; Bran- 
 don V. Brandon, 10 W. R. 287; Hagthrop v. Hook, 1 Gill & J. 270; Rey- 
 nolds v. Canal & Bkg. Co., 30 Ark. 520; Murdock v. Clarke (Cal.), 24 
 Pac. Rep. 272. If he has kept no account of the rents and profits re- 
 ceived, the mortgagee will be charged with a reasonable rent, i. e., 
 what might be had with proper diligence. Dexter v. Arnold, 2 Sumn. 
 108; Gordon v. Lewis, 76. 150; Van Buren V. Olmstead, 5 Paige 9; 
 Clark v. Smith, 1 N. J. Eq. 121; Montgomery v. Chadwick, 7 Iowa 114. 
 And if the mortgagee remains in possession himself, he will be charged 
 for rent to the full value of the land, the amount being determined by 
 expert testimony. Gordon v. Lewis, supra; Montgomery v. Chadwick, 
 supra; Kellogg v. Rockwell, 19 Conn. 446; Moore v. Cable, 1 Johns. Ch. 
 385; Chase V. Palmer, 25 Me. 341; Trulock v. Robey, 15 Sim. 265; 
 Van Buren v. Olmstead, supra; Saunders v. Wilson, 34 Vt. 318; Barrett 
 r. Nielson, 54 Iowa 41; 37 Am. Rep. 183; Clark v. Clark, 62 N. H. 267. 
 A mortgagee in possession is held not to be entitled to compensation 
 
 342
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 247 
 
 as a corollary to this rule, if the mortgagee fails to obtain 
 as high a rent as he might have secured as where he refuses 
 to let to the tenant offering the highest rent he will be 
 liable for this loss. But a clear case of negligence or willful 
 disregard of the mortgagor's interest must be established, in 
 order to hold him to account on this ground. The mere fail- 
 ure to obtain the highest rent possible is not a sufficient 
 ground of liability. 28 Where the rents and profits have been 
 increased by permanent improvements made by himself, 
 whether he is accountable for such increase to the mortgagor 
 depends upon the character of the improvements. If they be 
 in the nature of accessions to the land, or, in other words, 
 fixtures, the erection of costly buildings, etc., he need not ac- 
 count for the increased rents and profits, unless the mortgagor 
 has indemnified him for the cost of their erection, or he has 
 been so paid by the use of them. But where the improve- 
 ment is the result of his labor upon the land, or where wild 
 lands have been cleared, he must make returns of such im- 
 proved rents. 29 
 
 247. Tenure between mortgagor and mortgagee Ad- 
 verse possession. Whether the actual possession is held by 
 
 for care of the property, in Moss v. Odell, 141 Cal. 335, 74 Pae. Rep. 
 999; Turner v. Johnson, 95 Mo. 431, 7 S. W. Rep. 570; Snow V. War- 
 wick Inst., 17 R. I. 66, 20 Atl. Rep. 94. But see, Bumen V. Bank, 148 
 Mass. 300, 19 N. E. Rep. 382. 
 
 28 Hughes v. Williams, 12 Ves. 493; Hubbard V. Shaw, 12 Allen 123; 
 Rowe v. Wood, 2 J. & W. 553; Anon., 1 Vern. 45; Jones on Mort., Sec. 
 1123; Brown t;. South Boston Sav. Bank, 148 Mass. 300. A mortgagee 
 in possession is only liable for rents actually received and not for a 
 reduction in the rent in order to hold the tenants. Chapman v. Cooney, 
 25 R. I. 657, 57 Atl. Rep. 928. Mortgagee cannot charge for collecting 
 rents. Bernard v. Patterson, 100 N. W. Rep. 893. Willful neglect 
 must be shown to charge a mortgagee with more rent than was actually 
 received. Pollard v. American Land Mtg. Co. (Ala. 1903), 35 So. Rep. 
 767. 
 
 2 Moore v. Cable, 1 Johns. Ch. 385 ; Bell v. Mayor of N. Y., 10 Paige 
 Ch. 49; Morrison v. McLeod, 2 Ired. 108; Givens v. McCalmont, 4 Watts 
 460. See 2 Washburn on Real Prop. 224, 225; but see Merriam v. 
 Barton, 14 Vt. 501; Stoney v. Shultz, 1 Hill 464. 
 
 343
 
 247 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 the mortgagor or mortgagee, there is such a tenure -existing 
 between them that, for the purpose of protecting each other's 
 title and seisin, the possession of one is deemed the possession 
 of the other. If the one in possession is disseised, it will 
 work the disseisin of the other; and where one is seised, a 
 third person cannot set up a title by adverse possession 
 against the other. 30 The mortgagee is estopped by his deed 
 from denying the title of the mortgagor, and if he procures 
 releases from persons claiming a superior title to the mort- 
 gaged premises, such deeds inure to the benefit of the mort- 
 gagor upon his payment of the expenses incurred in purchas- 
 ing the superior title. 31 So also, will the mortgagor not be 
 permitted to set up against the mortgagee a paramount title 
 which he has acquired subsequently to the execution of the 
 mortgage. 32 But it seems that a junior incumbrancer, a judg- 
 ment creditor, for example, is not subject to any such estop- 
 pel as against the mortgagor or prior mortgagee. If he pur- 
 chases a paramount title, he can enforce it against either or 
 both. 33 Before condition broken, neither the mortgagor nor 
 
 so Birch 1?. Wright, 1 T. R. 383; Cholmondeley v. Clinton, 2 Meriv. 
 360; Poignard v. Smith, 8 Pick. 272; Dadmun v. Lamson, 9 Allen 85; 
 Lincoln v. Emerson, 108 Mass. 87; Doe v. Barton, 11 A. & E. 307; 
 Partridge f. Bere, 5 B. & Aid. 604; Hunt v. Hunt, 14 Pick. 374; New- 
 man 17. Chapman, 2 Rand. 93; Boyd v. Beck, 29 Ala. 703; Sheridan v. 
 Welch, 8 Allen 166; Currier V. Gale, 9 Allen 522; -Woods v. Hilde- 
 brand, 46 Mo. 284, 2 Am. Rep. 513. 
 
 si Brown v. Combs, 5 Dutch. 36; Doe v. Tunnel, 1 Houst. 320; Farm- 
 ers' Bank v. Bronson, 14 Mich. 369; Connor v. Whitmore, 52 Me. 185; 
 contra, Wright V. Sperry, 25 Wis. 617; Walthall v. Rives, 34 Ala. 91; 
 Hall v. Westcott, 15 R. I. 373; Drew V. Morrill, 62 N. H. 565; Rogor 
 V. Lomax, 22 111. App. 628. 
 
 szTefft c. Munson, 57 N. Y. 97; Lincoln 13. Emerson, 108 Mass. 87; 
 Conner v. Whitmore, 52 Me. 185; Miami Ex. Co. v. U. S. Bank, Wright 
 249; Fair r. Brown, 40 Iowa 209; Stears v. Hollenbeck, 38 Iowa 550: 
 Ryan v. McGehee, 103 N. C. 282; Cook v. Rounds, 60 Mich. 310. But 
 if the mortgagee is under obligation to pay the taxes, the mortgagor 
 may demand of him satisfaction for the expenses of the tax-title pur- 
 chased by him. Eaton v. Tallmadge, 22 Wis. 526. 
 
 33 Wilson v. Gadient, 36 Minn. 59. An outstanding title acquired by 
 one of several bondholders, inures to the benefit of all, on payment of 
 344
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 247 
 
 the mortgagee can disseise the other by any denial of title ; 
 but after the breach of the condition, the party in possession 
 may acquire, by acts of hostility, such an adverse possession 
 as will bar the other's title under the Statute of Limitations. 
 The statute begins to run from the time of forfeiture ; it can- 
 not before. After the lapse of the statutory period of limi- 
 tation the mortgagor loses his equity of redemption, and the 
 mortgagee his right to foreclose; and whoever is in possession 
 acquires an absolute title to the land. The respective as- 
 signees are governed by the same rules.-" 14 But any act by 
 
 their pro rata part of the expense. Booher v. Crocker, 132 Fed. Rep. 
 7, 65 Cir. Ct. App. 627. 
 
 s* Hunt I?. Hunt, 14 Pick. 374; Sheppard t?. Pratt, 15 Pick. 32; Rob- 
 erts v. Welch, 8 Ired. 287; Evans v. Huffman, 5 N. J. L. 354; Wilkin- 
 son v. Flowers, 37 Miss. 579; Chick v. Rollins, 41 Me. 104; Tripe v. 
 Marcy, 39 N. H. 439; Crawford v. Taylor, 42 Iowa 2GO ; Roberts V. 
 Littlefield, 48 Me. 61; Haskell v. Bailey, 22 Conn. 569; Chick v. Rollins, 
 44 Me. 104; Rockwell V. Servant, 63 111. 424; Giles v. Baremore, 5 
 Johns. Ch. 545; Bacon v. Mclntire, 8 Mete. 87; Harris V. Mills, 28 111. 
 46; Hughes p. Edwards, 9 Wheat, 489; Nevitt V. Bacon, 32 Miss. 212; 
 Green v. Turner, 38 Iowa 112; Moore V. Cable, 1 Johns. Ch. 385; Hodg- 
 don v. Heidman, 66 Iowa 645; Rodriguez v. Hayes, 76 Texas 225; Wil- 
 son V. Albert, 89 Mo. 537; Seawright v. Farmer (Ala.), 7 So. Rep. 201; 
 Holmes v. Turner's Falls, etc., Co., 150 Mass. 535, 23 N. E. Rep. 305; 
 Leonard v. Binford, 122 Ind. 200, 23 N. E. Rep. 704; Orr v. Rode (Mo.), 
 12 S. W. Rep. 1066. Where the mortgagee enters into possession before 
 condition broken, notice must be given to the mortgagor that he holds 
 possession for the purpose of foreclosure, before the statute will run 
 against the mortgagor's right to redeem. But see, Halbrook v. Green, 
 98 Me. 171, 56 Atl. Rep. 659; Newall V. Wright, 3 Mass. 138; Good- 
 win v. Richardson, 11 Mass. 469; Scott v. McFarland, 13 Mass. 308. 
 See Yarborough v. Newell, 10 Yerg. 376; Green t?. Turner, 38 Iowa 112; 
 Hammonds v. Hopkins, 3 Yerg. 525. And where, by agreement of the 
 parties, the mortgagee is to hold possession, until the mortgage-debt 
 was paid out of the rents and profits, the staute does not begin to run, 
 until his claim has been satisfied and he has given the mortgagor 
 notice of his adverse holding. Anding v. Davis, 38 Miss. 574 ; Kohlheim 
 r. Harrison, 34 Miss. 457; Frink v. Le Koy, 49 Cal. 314. And no 
 length of possession will bar the right to redeem, if by agreement the 
 mortgagor has an unlimited time, within which to pay off the mort- 
 gage. Wyman v. Babcock, 2 Curtis 386; Teulon t>. Curtis, 1 Younge 
 616. The possession of either party must be exclusive as well as ad- 
 
 345
 
 248 RIGHTS OF MORTGAGOR AND MORTGAGEE. [PART I. 
 
 the party in possession, which involves the recognition of 
 the other's title, or is an acknowledgment that the mortgage- 
 debt still exists, will rebut the presumption of adverse pos- 
 session. Where the mortgagor is in possession, payment of 
 the interest or a part of the principal of the mortgage-debt, 
 and in the case of the mortgagee's possession, the acceptance 
 of such payment, or rendering an account for the rents and 
 profits, would be circumstances and facts which would nega- 
 tive the hostility of the possession, and prevent the statute 
 from running against the one out of possession. 35 
 
 248. Insurance of the mortgaged premises. Both the 
 mortgagor and the mortgagee have insurable interests in the 
 premises, and they may insure their respective interests at 
 the same time. The mortgagee can only insure to the amount 
 of his debt. Where he takes out a policy in his own name 
 and pays the premium, and he cannot, by the terms of the 
 mortgage, call upon the mortgagor to refund such payments, 
 he takes the insurance money, in case of loss by fire, free 
 
 verse, in order that the statute may run. Burke V. Lynch, 2 Ba. & Be. 
 426; Archbold V. Scully, 9 H. L. Gas. 360; Drummond V. Sant, L. R. 
 6 Q. B. 763. But see, Lake v. Thomas, 3 Ves. Jr. 17. 
 
 33 To bar foreclosure, see Heyer v. Pruyn, 7 Paige 465; Hughes v. 
 Edwards, 9 Wheat. 490; Cheaver v. Perley, 11 Allen 584; Tripe r. 
 Marcy, 39 N. H. 439; Zeller v. Eckert, 4 How. 295; Wright V. Eaves, 
 10 Rich. Eq. 582; Drayton v. Marshall, Rice's Eq. 383; Howland r. 
 Shurlteff, 2 Mete. 26; Ayres v. Waite, 10 Gush. 72; Carberry f. Pres- 
 ton, 13 Ired. Eq. 455; Hough v. Bailey, 32 Conn. 288; Ward v. Carter, 
 L. R. 1 Eq. 29; Hughes v. Blackwell, 6 Jones Eq. 73; Jackson v. Slater, 
 5 Wend. 295; Brocklehurst v. Jessop, 7 Sim. 438. And see Cunningham 
 V. Hawkins, 24 Cal. 409; Harris v. Mills, 28 111. 44; Perkins r. Sterne, 
 23 Texas 563; Benton Co. v. Czarlinsky (Mo.), 14 S. W. Rep. 114. To 
 bar the equity of redemption, see Demarest v. Wynkoop, 3 Johns. Ch. 
 129; Limerick v. Voorhis, 9 Johns. 129; Pendleton v. Rooth, 1 Giff. 35; 
 Stansfield V. Hobson, 16 Beav. 236; Edsell V. Buchanan, 2 Ves. Jr. 83; 
 Barren t>. Martin, 19 Ves. 327; Hansard v. Hardy, 18 Ves. 455; Rich- 
 ardson v. Young, L. R. 10 Eq. 297; Marks r. Pell, 1 Johns. Ch. 594; 
 Dexter . Arnold, 3 Sumn. 151; Quint v. Little, 4 Greenl. 495; Shep- 
 perd . Murdock, 3 Murph. 218; Roberts v. Littlefield, 48 Me. 61; 
 Knowlton v. Walker, 13 Wis. 264; Jackson v. Lynch, 129 111. 72. 
 346
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 from any right of the mortgagor to have it applied to the 
 liquidation of the mortgage-debt. He can recover the in- 
 surance, and then procede to collect the debt. 36 But if he in- 
 sures the premises at the request of the mortgagor, or does 
 so in consequence of the neglect of the mortgagor, and at 
 his expense, as he may do if the mortgage contains a covenant 
 providing for the insurance of the premises by the mortgagor, 
 the mortgagor will be subrogated to the benefit of the insu- 
 rance, and the insurance money must be applied to the 
 debt. 37 Under such circumstances, the mortgagee would have 
 
 s 8 Ring v. State Ins. Co., 7 Gush. 1 ; Sussex Mut. Ins. Co. v. Wood- 
 ruff, 2 Dutch. 541; Excelsior Ins. Co. V. Ins. Co., 55 N. Y. 343, 14 Am. 
 Rep. 271; Carpenter r. Ins. Co., 16 Pet. 495; Russell v. Southard, 12 
 How. 139; ^Etna Ins. Co. v. Tyler, 16 Wend. 385; Springfield Fire Ins. 
 Co. v. Allen, 43 N. Y. 389, 3 Am. Rep. 711; White v. Brown, 2 Gush. 
 412; Harding V. Townsend, 43 Vt. 536; Dobson V. Land, 8 Hare 216; 
 Fowler v. Palmer, 5 Gray 549; Clark V. Wilson, 103 Mass. 219; Wil- 
 liams v. Ins. Co., 107 Mass. 377, 9 Am. Rep. 41; Bellamy V. Bricken- 
 den, 2 Johns. & H. 137; Ely v. Ely, 80 111. 532; Gushing V. Thompson, 
 34 Me. 496;. Bean v. A. & St. L. R. R., 58 Me. 82; King V. Mut. Ins. 
 Co., 7 Cush. 1; Brant r. Gallup, 111 111. 487. See also, McDowell v. 
 Moroth, 64 Mo. App. 290; Dunbrock v. Neall (W. Va. 1904), 47 S. E. 
 Rep. 303. 
 
 87 Concord, etc., Ins. Co., v. Woodbury, 45 Me. 447 ; Graves V. Hamp- 
 den Ins. Co., 10 Allen 285; Callahan v. Linthicum, 43 Md. 97, 20 Am. 
 Rep. 106; Gordon v. Ware Sav. Co., 115 Mass. 588; King v. Mut. Ins. 
 Co., 7 Cush. 1; Clark V. Wilson, 103 Mass. 221; Larrabell V. Lumbert, 
 32 Me. 97; Suffolk Ins. Co. V. Boyden, 9 Allen 123; Waring v. Loder, 
 53- N. Y. 581; Norwich Ins. Co. V. Boomer, 52 111. 442, 4 Am. Rep. 618; 
 Fowler v. Palmer, 5 Gray 549; Martin V. Franklin Fire Ins. Co., 38 N. 
 J. L. 140, 20 Am. Rep. 372; Nichols v. Baxter, 5 R. I. 491. And when 
 the mortgage contains an insurance clause, and an insurance policy is 
 taken out by the mortgagee upon the default of the mortgagor to do 
 so, the policy is presumed to be taken out for the benefit of both par- 
 ties, and the mortgagee cannot refuse to apply it to the debt. Foster 
 v. VanReed, 5 Hun 321; Buffalo Steam Engine Works v. Ins. Co., 17 
 N. Y. 406; Blinton v. Hope Ins. Co., 45 N. Y. 454; Waring t;. Loder, 
 53 N. Y. 581; Honore v. Lamar Ins. Co., 51 111. 409. And in such 
 cases, the fact that the debt has been paid will not prevent a recovery 
 of the insurance money. The mortgagor's interest in the policy keeps 
 it alive. Norwich Ins. Co. v. Boomer, supra ; Concord Ins. Co. v. Wood- 
 bury, supra; Waring v. Loder, supra. Where the requirement of the 
 
 347
 
 248 RIGHTS OF .MORTGAGOR AND MORTGAGEE. [PART I. 
 
 a claim against the mortgagor and against the mortgaged 
 property for re-imbursement of the premiums paid by him. 38 
 But, although the mortgagee is entitled, as against the mort- 
 gagor, to the full benefit of the insurance, where there is no 
 covenant of insurance, it is not so certain that he will, as 
 against the insurance company, be permitted to recover to his 
 own use both the debt and the insurance money. Some of 
 the courts hold that the insurance company will be subrogated 
 to the rights of the mortgagee under the mortgage in the pro- 
 portion that the insurance paid bears to the mortgage-debt; 39 
 while the courts of 'Massachusetts sustain the doctrine that he 
 may recover both the insurance and the debt, discharged of 
 any right of subrogation in the insurance company, on the 
 ground that the premiums paid on the policy are a good 
 and adequate consideration for the risk assumed, and pre- 
 vent any claim on the part of the company to the equitable 
 right of subrogation. 40 The mortgagor may insure to the 
 
 mortgage is that a policy of insurance shall be procured by the mortga- 
 gor, for the benefit of the mortgagee as is generally the case the 
 mortgagee is entitled to the insurance, in case of loss, though the policy 
 is payable to the mortgagor alone. Hyde v. Hartford Ins. Co. (Neb. 
 1903), 97 N. W. Rep. 629; Eastern Milling Co. V. Eastern Export Co. 
 (Pa. 1903), 125 Fed. Rep. 143. 
 
 38 McLean V. Burr, 16 Mo. App. 240. 
 
 3 Concord Ins. Co. v. Woodbury, 45 Me. 447 ; -^tna Ins. Co. v. Tyler, 
 16 Wend. 397; Sussex Ins. Co. 0. Woodruff, 2 Dutch. 541; Ulster Co. 
 Sav. Inst. v. Leake, 73 N. Y. 161, 29 Am. Rep. 115; Excelsior Ins.- Co. 
 V. Ins. Co., 55 N. Y. 343, 14 Am. Rep. 271; Honore v. Lamar Ins. Co., 
 51 111. 409; Norwich Ins. Co. v. Boomer, 52 111. 442, 4 Am. Rep. 618; 
 Callahan v. Linthicum, 43 Md. 97, 20 Am. Rep. 106. 
 
 o King V. Ins. Co., 7 Cush. 1; Suffolk Ins. Co. r. Boyden, 9 Allen 
 123; Clark v. Wilson, 103 Mass. 221; Foster r. Equitable Ins. Co., 5. 
 Gray 216; Dobson v. Land, 8 Hare 216. In King v. Ins. Co., supra, 
 Chief Justice Shaw said: "He (the mortgagee) surely may recover of 
 the mortgagor, because he is his debtor, and on good consideration has 
 contracted to pay. The money received from the underwriters was not 
 a payment of his debt ; there was no privity of contract between the 
 mortgagor and the underwriters ; he had not contracted with them to 
 pay it for him, on any contingency; he had paid them nothing for so 
 doing. They did not pay because the mortgagor owed it; but because 
 348
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGLE. 248 
 
 full value of the premises, irrespective of the mortgagee's in- 
 terest. A mortgage is not such an alienation as will defeat 
 the policy of insurance not even so far as to reduce the 
 mortgagor's insurable interest to the equity of redemption. 41 
 
 they had bound themselves, in the event which has happened, to pay a 
 certain sum to the mortgagee." ..." What, then, is there inequi- 
 table, on the part of the mortgagee, towards either party in holding 
 both sums? They are both due upon valid contracts with him, made 
 upon adequate considerations paid by himself. There is nothing in- 
 equitable to the debtor, for he pays no more than he originally secured 
 in money loaned ; nor to the underwriter, for he has only paid upon a 
 risk voluntarily taken, for which he was paid by the mortgagee a full 
 and satisfactory equivalent." Perhaps the true theory lies between 
 these opposite positions of the courts. The Massachusetts court is un- 
 doubtedly correct in its position, that there is no equitable ground for 
 the application of the doctrine of subrogation. But it is incorrect to 
 go farther and hold that the mortgagee may recover both sums to his 
 own use. A mortgagee insures only his interest in the mortgaged 
 premises, and -that interest is exhausted when the debt is paid. Graves 
 v. Hampden Ins. Co., 10 Allen 283; Sussex Ins. Co. v. Woodruff, 2 
 Dutch. 541. From this position it is an easy step to say, that when the 
 mortgag'ed property, after the loss by fire is sufficient to satisfy the mort- 
 gage-debt, and it is actually satisfied, either by foreclosure or by pay- 
 ment by the mortgagor, the mortgagee has sustained no loss. See JEtna. 
 Ins. Co. V. Tyler, 16 Wend. 385 ; Kernochan r. Bowery Ins. Co., 17 N. 
 Y. 428; Carpenter v. Providence, etc., Ins. Co., 16 Pet. 495; Smith V. 
 Columbia Ins. Co., 17 Pa. St. 253. Contra, Excelsior Ins. Co. 17. Ins. 
 Co., 55 N. Y. 343. The mortgagee may proceed either against the in- 
 surance company on the policy, or against the mortgagor on the mort- 
 gage, and neither of them can object, or compel him to proceed against 
 both. Nor has either a claim against the other. But if the mortgagee 
 does recover from both, the position of the mortgagee, in respect to the 
 insurance company, is the same as if the mortgagor had paid the debt, 
 before application had been made for the insurance money. In the 
 latter case, he could not recover of the insurance company, for he had 
 suffered no loss. 
 
 4i Strong t'. Ins. Co., 10 Pick. 40; Tuck v. Hartford Ins. Co., 56 N. H. 
 326; Fame v. Wenans, 1 Hopk. Ch. 283; Stephens r. Mut. Ins. Co., 43 
 111. 325 ; Dyers V. Ins. Co., 35 Ohio St. 606, 35 Am. Rep. 623 ; Manhat- 
 tan Ins. Co. v. Weill, 28 Gratt. 382, 26 Am. Rep. 364; 111. Ins. Co. v. 
 Stanton, 57 111. 354; Commercial Ins. Co. r. Spankneble, 52 III. 53, 4 
 Am. Rep. 582; Hartford Ins. Co. r. Walsh. 54 111.. 4 Am. Rep. 115. 
 And the mortgagor continues to have an insurable interest in the prop- 
 
 349
 
 248 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 And in the absence of the covenant requiring the mortgagor 
 to keep the premises insured, the mortgagee has not the right 
 to demand the appropriation of the insurance money to the 
 payment of the mortgage-debt. 42 But where the mortgage 
 calls for the insurance of the premises, and the mortgagor per- 
 forms the covenant, the mortgagee acquires therein a beneficial 
 interest, and is entitled to have the insurance money applied 
 to the debt. 43 And so, also, if the insurance covers one of 
 two or more pieces of property included in the same mort- 
 gage, the owners of the other pieces of property have the 
 right to require the application of the insurance money to 
 the payment of the debt. 44 But where the loss is made pay- 
 
 erty, as long as his right of redemption is not completely barred. Gor- 
 don t;. Ins. Co., 2 Pick. 249; Cheney v. Woodruff, 54 N. Y. 98; Strong 
 V. Ins. Co., supra; Waring v. Loder, 53 N. Y. 581. Although the exist- 
 ence of a mortgage does not reduce the insurable interest of the mort- 
 gagor, still it is held in some of the States that, if inquiry is made as 
 to this, it becomes a material fact, and misrepresentations, concern- 
 ing the existence of the amount secured, will vitiate the policy. Daven- 
 port V. Ins. Co., 6 Cush. 340; Brown v. People's Ins. Co., 11 Gush. 280; 
 Bowditch Ins. Co. v. Winslow, 8 Gray 38; Packard r. Agawan Ins. Co., 
 2 Gray 334. Contra, Norwich Ins. Co. v. Boomer, 52 111. 442, 4 Am. 
 Rep. 618. 
 
 Carter v. Rockett, 8 Paige Ch. 437; Hancox r. Fishing Ins. Co., 3 
 Sumn. 132; Stearns v. Quincy Mut. Ins. Co., 124 Mass. 61, 26 Am. Rep. 
 647; Wilson v. Hill, 3 Mete. 66; Vandegraff v. Medlock, 3 Port. 389; 
 Plimpton v. Ins. Co., 43 Vt. 497; Columbia Ins. Co. v. Lawrence, 10 
 Pet. 507; Foster v. Van Reed, 70 N. Y. 19, 26 Am. Rep. 544; Carpenter 
 V. Providence, etc., Ins. Co., 66 Pet. 495; Thomas v. Vonkapff, 6 Gill 
 & J. 372; McDonald v. Black, 20 Ohio 185; Powles v. Innes, 11 M. & W. 
 10; Vernon v. Smith, 5 B. & A. 1; De Forest v. Fulton Ins. Co., 1 Ha'll 
 103; Fame V. Winnons, 1 Hopk. Ch. 283; Neale t?. Reed, 3 Dowl. & Ry. 
 158. 
 
 43 Concord, etc., Ins., Co., v. Woodbury, 45 Me. 447 ; Gordon v. Ware 
 Savings Ins. Co., 115 Mass. 588; Carter v. Rockett, 8 Paige 437; Nor- 
 wich Ins. Co. v. Boomer, 52 111. 442; In re Sands Ale Brewing Co., 3 
 Biss. 175; Miller v. Aldrich, 31 Mich. 408 ; Burns v. Collins, 64 Md. 
 215; Thomas v. Vonkapff, 6 Gill & J. 372 ; Brant v. Gallup, 111 111. 
 487; Hyde v. Hartford Ins. Co. (Neb. 1903), 97 N. W. Rep. 629; 
 Eastern Milling Co. v. Eastern Export Co. (Pa. 1903), 125 Fed. Rep. 
 143. 
 
 ** Conn. Mut. Life Ins. Co. v. Scammon, 117 U. S. 634. 
 350
 
 CH. XI.] RIGHTS OP MORTGAGOR AND MORTGAGEE. 249 
 
 able to the mortgagor, or is assigned to the mortgagee with- 
 out the consent of the company, alienation by the mortgagor 
 of his interest will defeat the policy, even as to the mortgagee. 
 For the complete protection of the mortgagee, the policy 
 should be assigned to him with the consent of the company, 
 and the assignment should be made to appear on the com- 
 pany's books as well as on the face of the policy. When the 
 policy is in this shape, the mortgagee, in case of loss, receives 
 the insurance money in trust to apply it to the debt, and such 
 application may be enforced, not only by the mortgagor, but 
 by every one claiming through him and subject to the mort- 
 gage. The surplus, if any, goes to the mortgagor and those in 
 privity with him. 45 
 
 249. Assignment of the mortgage. Whether the mort- 
 gagee's interest be considered a legal estate or only a lien, 
 it is clear, since the mortgage is in form a conveyance, and is 
 required to be recorded like all other conveyances, that the 
 proper mode of assigning it is by deed or instrument of the 
 same character as the mortgage itself, either separate from 
 
 * 5 Macomber v. Cambridge Ins. Co., 8 Gush. 133 ; Grosvenor v. Atlan- 
 tic Ins. Co., 17 N. R. 391; Luckey v. Gannon, 37 How. Pr. 134; Fowley 
 V. Palmer, 5 Gray, 549; Graves v. Hampden Ins. Co., 10 Allen 382; Con- 
 cord, etc., Ins. Co., V. Woodbury, 45 Me. 447 ; Larrabee l'. Lumbert, 32 
 Me. 97; Waring v. Loder, 53 N. Y. 581; Clark V. Wilson, 103 Mass. 
 221; Mix v. Hotchkiss, 14 Conn. 32; Hyde v. Hartford Ins. Co. (Neb. 
 1903), 97 N. W. Rep. 629; Eastern Milling Co. V. Eastern Export Co. 
 (Pa. 1903), 125 Fed. Rep. 143. Where the insurance is obtained in 
 the name of the mortgagor, but the policy contained a provision, that 
 the loss, if any, is to be paid to the mortgagee; generally it is required 
 that suit on the policy must be instituted in the mortgagee's name, or 
 jointly with the mortgagor. Ennis 1?. Harmony Ins. Co., 3 Bosw. 516; 
 Concord Mut. Ins. Co. v. Woodbury, 45 Me. 447; Grosvenor v. Atlantic 
 Ins. Co., 17 N. Y. 391 ; Norwich Ins. Co. v. Boomer, 52 111. 442, 4 Am. 
 Rep. 618; Frink V. Hampden Ins. Co., 45 Barb. 384; Martin V. Frank- 
 lin Ins. Co., 38 N. J. L. 140. But with the consent of the mortgagee, 
 the mortgagor may bring the suit alone in his own name. Patterson t'. 
 Triumph Ins. Co., 64 Me. 500; Farrow v. Ins. Co., 18 Pick. 53; Jackson 
 n. Farmers' Ins. Co., 5 Gray 52; Turner v. Quincy Ins. Co., 109 Mass. 
 568; Illinois Ins. Co. v. Stanton, 57 111. 354. 
 
 351
 
 250 RIGHTS OF MORTGAGOR AND MORTGAGEE. [PART I. 
 
 or written on the back of the mortgage, together with the 
 assignment and delivery of the instrument of indebtedness, 
 if there be any. Such an assignment would vest the entire 
 legal interest of the mortgagee in the assignee. 40 Whether a 
 deed is absolutely required to assign the legal interest of the 
 mortgagee depends upon the construction placed upon mort- 
 gages in the State in which the question arises. And, in 
 determining this question, it must be observed that, although 
 the assignment of the mortgage debt, irrespective of its ef- 
 fect upon the mortgage, will be governed by the lex loci con- 
 tractus, the assignment of the mortgage itself must conform 
 to the law of the place where the mortgaged land is situated. 47 
 
 250. Common law assignment. At common law, and 
 under the prevailing common-law theory, nothing less than 
 a deed will be sufficient to pass the legal interest of the mort- 
 gagee. 48 But the deed need not in express words be the as- 
 
 * Jones on Mort., Sec. 786; 2 Washburn on Real Prop. 113-118. 
 
 Story on Confl., Sees. 363, 364 ; Goddard V. Sawyer, 9 Allen 78. 
 But this is not the case in regard to the equitable assignment of the 
 mortgage, effected by the transfer of the debt. The equitable rights of 
 the parties are governed by the lex loci oontractus. See Hoyt v. Thomp- 
 son, 19 N. Y. 207 ; Dundas v. Bowler, 3 McLean, 397 ; Murrell v. Jones, 
 40 Miss. 565. Under N. Y. Laws ( 1896 ) , p. 607, c. 547, Sec. 240, an as- 
 signment of a mortgage, when recorded, has the same standing with any 
 other recorded instrument of writing. Weideman V. Pech, 92 N. Y. S. 
 493, 102 App. Div. 163. See also, in New Jersey Laws (1898), p. 690 
 Sec. 53, construed in Eiggins v. Jamesburg Co., 58 Atl. Rep. 1078. 
 In Illinois, the holder and assignee of the debt takes the mortgage as 
 an incident thereof. Such an assignee takes subject to equities of the 
 makers, but not of third parties. Kittler v. Studebaker, 113 111. App. 
 342. This is also the rule, in Missouri. Bank v. Ragsdale, 158 Mo. 
 068, 71 S. W. Rep. 178; Bishop v. Chase, 156 Mo. 158, 56 S. W. Rep. 
 1080; Investment Co. t'. Fulton, 86 Mo. App. 138. A tender to an as- 
 signee of the debt is a recognition of the title of the assignee to the 
 mortgage. Juckett v. Fargo Merc. Co. (S. D. 1905), 102 N. W. Rep. 
 604. 
 
 48 Warden v. Adams, 15 Mass. 233; Adams V. Parker, 12 Gray 53; 
 Ruggles v. Barton, 13 Gray 506; Douglass v. Durin, 51 Me. 121; 
 Mitchell r. Burnham, 44 Me. 286; Burton v. Baxter, 7 Blackf. 297; 
 352
 
 CH. XI.] RIGHTS OP MORTGAGOR AND MORTGAGEE. 250 
 
 sigument of the mortgage. A quit-claim deed or an ordinary 
 deed purporting to convey an absolute estate in fee will carry 
 whatever legal interest the mortgagee has in the mortgaged 
 premises, although it seems that it would have no effect upon 
 the mortgage debt, unless it, too, was assigned. But a deed 
 with a general warranty will in equity work an assignment 
 of the debt, wherever the grantee has paid a valuable and sub- 
 stantial consideration for the same. 49 Under this theory an 
 assignment of the mortgage debt would not operate as an 
 assignment of the mortgage. 50 If the assignment of the mort- 
 gage does not carry with it the mortgage-debt, or the mort- 
 gage is assigned to one person and the debt to another, the 
 assignee of the mortgage receives only the legal estate, which 
 he holds in trust for the one who owns the debt. 51 Such is 
 
 Cottrell r. Adams, 2 Biss. 351; Twitoltell V. McMurtrie, 77 Pa. St. 383; 
 Sanders r. Cassaday, 86 Ala. 246; but in New Jersey a seal is not now 
 necessary. Mulford r. Peterson, 35 N. J. L. 127; Hammond v. Lewis, 1 
 How. 14. 
 
 4 Hunt r. Hunt, 14 Pick. 374; Savage v. Hall, 12 Gray 364; Hill v. 
 More, 40 Me. 525; Connor r. Whitman, 52 Me. 186; Collamer v. Lang- 
 don, 29 Vt. 32; divan r. Doe. 7 Blackf. 210; Thompson v. Kenyon, 100 
 Mass. 108 ; Rodriguez v. Hayes. 75 Tex. 225. But where there is a 
 separate instrument of indebtedness, in order to pass the debt, it must 
 also be delivered, unless the deed is a warranty deed, when there will 
 be an equitable assignment of the debt. Lawrence v. Stratton, 6 Cush. 
 163; Ruggles v. Barton, 13 Gray 500; Olmstead v. Elder, 2 Sandf. Ch. 
 325; Dixfiold r. Newton, 41 Me. 221; Furbush v. Goodwin, 25 N. H. 
 425; Givan v. Doe, 7 Blackf. 210; Welsh i'. Phillips, 54 Ala. 309, 25 
 Am. Rep. 679 ; but see Weeks V. Eaton, 15 N. H. 145 ; Hinds v. Ballou, 
 44 N. H. 621; Rodriguez v. Hayes, 76 Tex. 225; Fitts v. Beardsley, 8 
 N. Y. S. 567. 
 
 BO Adams r. Gray, 12 Gray 53; Stanley v. Kempton. 59 Me. 472; 
 Young r. Miller, 6 Gray 152; Bourland v. Kipp, 55 111. 376. 
 
 Story Eq., Sec. 1023 n ; Merritt v. Bartholick, 36 N. Y. 44 ; Moore 
 V. Ware, 38 Me. 496; Warren v. Homestead, 33 Me. 256; Jackson v. 
 Willard, 4 Johns. 41; Aymar v. Bill, 5 Johns. Ch. 570; Swan V. Jupple, 
 35 Iowa 248; Hutchins v. Carleton, 19 N. H. 478; Bailey v. Gould, 
 Walk. (Mich.) 478; Peters v. Jamestown Bridge Co., 5 Cal. 334; John- 
 son v. Cornett, 29 Ind. 59; Langster v. Love, 11 Iowa 580; Patton v. 
 Pearson, 57 Me. 434. To pass the beneficial interest in the mortgage, 
 the mortgage-note or bond, if there be such, must be assigned with tho 
 
 23 353
 
 250 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 also the rule at common law, where the debt upon the denth 
 of the mortgagee vested in the personal representatives, while 
 the mortgage descended to his heirs in trust for the personal 
 estate. 52 The assignee cannot acquire by such an assignment 
 any beneficial interest in the mortgage, and the trust is bind- 
 ing upon him and all his privies who have actual or construc- 
 tive notice. And where the mortgagor has notice of the 
 assignments of the mortgage and debt to different persons, 
 he cannot discharge the mortgage by payment or tender of 
 payment to the assignee of the mortgage. 03 In a number of 
 the States it is now held that the assignment of the mort- 
 gage without the debt is a nullity ; it conveys no estate to the 
 
 mortgage, at least as against the mortgagor and subsequent assignees 
 of the debt. Bowers v. Johnson, 49 N. Y. 432; Hitchcock v. Merrick, 
 18 Wis. 357; Warden v. Adams, 15 Mass. 233; Kursheedt v. McCune, 
 20 Abb. N. C. 265. And the note or bond need not be indorsed, if de- 
 livered. Pratt v. Skolfield, 45 Me. 386; King v. Harrington, supra; 
 Pease v. Warren, 29 Mich. 9; contra, Kelly v. Burnham, 9 IT. H. 20. 
 But where the debt has not been assigned to another, it may, as 
 against the mortgagee, pass by assignment in equity to the assignee of 
 the mortgage without any formal transfer, if it be the intention of the 
 parties that the assignee should acquire a beneficial interest in the 
 mortgage. Merritt v. Bartholick, 36 N. Y. 44 ; Buckley v. Chapman, 9 
 Conn. 5; Northampton Bk. v. Balliet, 8 W. & S. 311; Campbell v. 
 Burch, 1 Lans. 178; Cooper V. Newland, 17 Abb. Pr. 342. And where 
 there is no separate instrument of indebtedness, the beneficial interest 
 will always pass with the assignment of the mortgage unless it is ex- 
 pressly reserved. Severance v. Grifiitt, 2 Lans. 38; Caryl v. Russell, 7 
 76. 416; Coleman v. Van Renssalaer, 44 How. Pr. 368. 
 
 52 Washburn on Real Prop. 120, 121, 141; Jackson V. Delancey, 11 
 Johns. 365; Wilkins v. French, 20 Me. Ill; Dewey V. Van Deusen, 4 
 Pick. 19; Kinna V. Smith, 2 Green Ch. 14; Chase v. Lockerman, 11 Gill 
 & J. 185; Taft v. Stevens, 3 Gray 504; Green v. Hunt, Cooke 344; 
 White v. Rittenmyer, 30 Iowa 272. 
 
 53 Mitchell v. Burnham, 44 Me. 302 ; James v. Johnson, 6 Johns. Ch. 
 417; Gregory v. Savage, 32 Conn. 250; Henderson r. Pilgrim, 22 Texas 
 404. But the notice must be actual. The record of the assignment is. 
 not constructive notice to the mortgagor. Williams v. Sorrell, 4 Ves. 
 Jr. 389; Mitchell v. Burnham, supra; Wolcott v. Sullivan, 1 Edw. Ch. 
 399; Reed r. Marble, 10 Paige Ch. 409; 3 Washburn on Real Prop. 316;. 
 see post, Sec. 260. 
 
 354
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 251 
 
 assignee, and he may be treated as a trespasser by the mort- 
 gagor or the assignee of the debt. 54 
 
 251. Assignment under the lien theory. Although it is 
 still held in those States which have, to a greater or less de- 
 gree, discarded the common-law theory, that an effectual 
 legal assignment of the mortgage requires a deed proved and 
 acknowledged like all other deeds of conveyance, it is there 
 held that, the debt being the principal thing and the mortgage 
 only a security or lien, an assignment of the debt will oper- 
 ate as an equitable assignment of the mortgage, binding 
 upon all persons having notice, and giving to the assignee the 
 power in equity to exercise all the rights of the mortgagee. 55 
 
 s* Wilson v. Troup, 2 Cow. 195; Jackson v. Willard, 4 Johns. 43; 
 Merritt v. Bartholick, 36 N. Y. 44 ; Purdy v. Huntington, 42 N. Y. 346 ; 
 Furbish v. Goodwin, 25 N. H. 425; Burdett v. Clay, 8 B. Mon. 287; 
 Blair v. Bass, 4 Blackf . 539 ; Dick V. Mawry, 9 Smed. & M. 448 ; Ladue 
 r. R. R. Co., 13 Mich. 396; Perkins v. Stearne, 23 Texas 503; Peters V. 
 Jamestown Bridge Co., 5 Cal. 335; Bloomingdale v. Bowman, 4 N. Y. 
 S. 860. But if the mortgagee is in possession the rule is different, and 
 sufficient title passes to the assignee of the mortgage to give him the 
 right of possession, which he can maintain against all who do not show 
 a better title. Smith v. Smith, 15 N. H. 58; Hinds v. Ballon, 44 N. H. 
 487; Pickett V. Jones, 63 Mo. 195. 
 
 55 Wolcott V. Winchester, 15 Gray 461; Vose V. Handy, 2 Greenl. 322; 
 Northy v. Northy, 45 N. H. 144; Blake v. Williams, 36V. H. 39; Keyes 
 r. Wood, 21 Vt. 331; Lawrence V. Knap, 1 Root 248; Neilson v. Blight, 
 1 Johns. Cas. 205; Evertson V. Booth, 19 Johns. 491; Parmelee f. Daun, 
 23 Barb. 461; Wilson V. Troup, 2. Cow. 242; Craft v. Webster, 4 Rawle, 
 242; Danley v. Hays, 17 Serg. & R. 400; Partridge r. Partridge, 38 Pa. 
 St. 78; Hyman v. Devereux, 63 N. C. 624; Muller r. Wadlington, 5 S. 
 C. 242; Wright v. Eaves, 10 Rich. Eq. 585; Scott V. Turner, 15 La. An. 
 346; Graham v. Newman, 21 Ala. 497; Holmes v. McGinty, 44 Miss. 
 94; Martin i;. McReynolds, 6 Mich. 70; U. S. Bank v. Covert, 13 Ohio 
 240; Mills v. Gray, 4 B. Mon. 117; Burdett v. Clay, 8 76. 287; Mapps v. 
 Sharpe, 32 111. 165; Potter V. Stevens, 40 Mo. 229; Burton v. Baxter, 
 7 Blackf. 297; Fisher V. Otis, 3 Chand. 83; Willis v. Farley, 24 Cal. 
 497; Chilton v. Brooks, 71 Md. 445; Lee v. Clark, 89 Mo. 553. But as 
 a general proposition, such an assignee acquires no legal interest, and 
 can therefore exercise none of the rights of a legal owner, such as the 
 maintenance of an action of ejectment or a writ of entry. Cottrell v. 
 
 355
 
 5j L'M RIGHTS OF MORTGAGOR AND MORTGAGEE. [PART I. 
 
 Under this theory, whatever constitutes in the law of com- 
 mercial paper a good assignment of the debt, will operate 
 as an equitable assignment of the mortgage. Thus a parol 
 sale and transfer of the debt is a good equitable assignment of 
 the mortgage. 89 "Where the mortgage is given to secure two 
 or more debts, the assignment of one of them will operate 
 as an assignment of a pro rata share in the mortgage, unless 
 it is the expressed intention of the parties that the entire 
 mortgage-security should be retained for the benefit of the 
 
 Adams, 2 Bias. 351 ; Young V. Miller, 6 Gray 152 ; Dwinel V. Perley, 32 
 Me. 197; Edgerton v. Young, 43 111. 464; Partridge v. Partridge, 38 Pa. 
 St. 78; Warden r. Adams, 15 Mass. 232. But in the code States where 
 all actions are instituted in the name of the party beneficially inter- 
 ested, the equitable assignee may enforce the mortgage in his own name. 
 Gower v. Howe, 20 Ind. 396; Clearwater v. Rose, 1 Blackf. 138; Gar- 
 land v. Richeson, 4 Rand. 266; see also to the same effect, Kinney v. 
 Smith, 2 Green Ch. 14; Mulford . Peterson, 35 N. J. Eq. 127; South- 
 erin v. Mendum, 35 N. H. 420; Austin v. Burbank, 2 Day 396; Clark- 
 sons v. Doddridge, 14 Gratt. 44; Runyan v. Mersereau, 11 Johns. 534. 
 And in those States where the legal title of the mortgage does not pass 
 with the assignment of the debt, equity may compel the holder of the 
 legal title to transfer it to the assignee of the debt, or to maintain the 
 suits necessary for the protection of the assignee. Wolcott v. Win- 
 chester, 15 Gray 461; Crane V. March, 4 Pick. 131; Mount v. Suydam, 4 
 Sandf. Ch. 399; Lyon's App., 61 Pa. St. 15; Baker V. Terrell, 8 Minn. 
 195.. 
 
 sLane v. Duchac, 73 Wis. 646; Tiedeman Com. Paper, Sec. 250; 
 Bank r. Ragsdale, 158 Mo. 668, 71 S. W. Rep. 178; Bishop V. Chase, 
 156 Mo. 158, 56 S. W. Rep. 1080; Investment Co. v. Fulton, 86 Mo. 
 App. 138; Kittler v. Studebaker, 113 111. App. 342; Mohuken Co. v. 
 Pellefrenn, 87 N. Y. S. 737, 93 App. Div. 420; Barlow v. Cooper, 109 
 111. App. 375; Freeburg v. Eksell, 123 Iowa 464, 99 N. W. Rep. 118; 
 Syracuse Bank v. Merrick, 89 N. Y. S. 238, 96 App. Div. 581. As to 
 defenses against the assignee of the debt, see Brosseon v. Lowry, 209 111. 
 405, 70 N. E. Rep. 901. The right to enforce a mortgage security, 
 passes as an incident to the transfer of the mortgage debt. Barlow v. 
 Cooper, 109 111. App. 375. As a mortgage is but an incident of the 
 debt it is given to secure there can be no transfer of the mortgage, 
 without the debt. Merritt V. Bartholick, 36 N. Y. 44; Finch's Sel. Cas. 
 1114; Martin v. Nowlin, 2 Burr. 969; Green V. Hart, 1 Johns. 580; 
 Jackson v. Blodgett, 5 Cow. 231; Cooper v. King, 17 Abb. 342. 
 
 356
 
 OH. XL] RIGHTS OP MORTGAGOR AND MORTGAGEE. 251 
 
 remaining debts. 57 This is always the case, in the absence 
 of an express contract, where the debts secured by the same 
 mortgage fall due at the same time. But where they fall 
 due at different periods, in very many of the States one is 
 generally held to have priority over the other in the order 
 in which they fall due. The effect is the same as if there 
 had been successive and independent mortgages, one for each 
 debt. 58 But it is always competent for the parties to con- 
 trol the priority of the debts secured by the same mortgage, 
 and they may altogether exclude one or more from the en- 
 joyment of the security. 59 It has also been held that the 
 mortgage-debts in the hands of assignees will have priority in 
 the order of their assignment. 60 Inasmuch as under the lien 
 theory the mortgagee has very few, if any, rights which are 
 enforceable only in law, the equitable assignment of the 
 mortgage affords sufficient protection for the assignee. This 
 is particularly the case in those States where the mortgagee is 
 prohibited from assigning the mortgage without the debt. 
 
 "Donley r. Hays, 17 Serg. & R. 400; Belding v. Manly, 21 Vt. 550; 
 Miller v. Rutherland, etc., R. R., 40 Vt. 39; Cooper v. Ulman, Walk. 
 (Mich.) 251; Lane v. Davis, 225; Blair v. White, 61 Vt. 110; Pauzel 
 r. Brookmire, 51 Ark. 105; In re Preston, 54 Hun 10. 
 
 SB Stanley V. Beatty, 4 Ind. 134; McVay V. Bloodgood, 9 Port. 547? 
 U. S. Bk. V. Covert, 13 Ohio 240; Preston v. Hodges, 50 111. 56; Thomp- 
 son r. Field, 38 Mo. 325; Isett v. Lucas, 17 Iowa 506; G. Wathmeys V. 
 Ragland, 1 Rand. 466 ; Larrabee v. Lambert, 32 Me. 97 ; contra, Darby 
 V. Hays, 17 Serg. & R. 400; Henderson v. Herrod, 10 Smed. & M. 631; 
 English v. Carney, 25 Mich. 178; Grattan v. Wiggins, 23 Cal. 30; Gor- 
 don r. Hazzard (S. C.), 11 S. E. Rep. 100. 
 
 so Bryant v. Damon, 6 Gray 165; Mechanic's Bk. v. Bk. of Niagara, 9 
 Wrnd. 410; Eastman v. Foster, 8 Mete. 19; Stevenson r. Black, 1 N. T, 
 Eq. 338; Wright V. Parker, 2 Aik. 212; Walker v. Dement, 42 111. 272; 
 Bk. of England r. Tarleton. 23 Miss. 178; Cooper 17. Ulman, Walk. 
 (Midi.) 251; Grattan r. Wiggins, 23 Cal. 30; Willett V. Johnson, 84 
 Ky. 411; Morgan v. Kline, 77 Iowa 681. 
 
 Eastman r. Foster. 8 Mete. 19; Noyes v. White, 9 Minn. 640; 
 contra. Page r. Pierce, 26 N. H. 317; Stevenson v. Black, 1 N. J. Eq. 
 338; Henderson v. Herrod, 18 Mass. 631. 
 
 357
 
 253 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART T. 
 
 5$ 252. Assignment of the mortgagor's interest. The mort- 
 gagor's interest, whether before or after condition broken, 
 at common law or under the lien theory, can only be assigned 
 by deed, for in any case and under all circumstances the 
 mortgagor is considered, as against all the world, except the 
 mortgagee, as the owner of the' legal estate, which he can 
 convey as long as his equity of redemption has not been 
 barred or foreclosed. 01 As against the mortgagee, the mort- 
 gagor 's assignee has merely the rights of the mortgagor under 
 the mortgage; he takes the estate subject to the mortgage. 
 And this is the case with the second mortgagee, as well as, 
 with the absolute purchaser. 62 
 
 253. Rights and liabilities of assignees. In respect to the 
 mortgaged premises, the assignees enjoy all the rights, and 
 assume all the liabilities, of their respective assignors. If the 
 mortgagee is entitled to possession, his assignee will also be 
 entitled to possession; he may appropriate the rents and 
 profits while in possession and, in the same manner as the 
 mortgagee, maintain all the actions given for the protection 
 of his interests. 63 Whether the assignee of the mortgage takes 
 
 si Co. Lit. 205 a, Butler's note, 96; White v. Whitney, 3 Mete. 81; 
 White v. Rittenmyer, 30 Iowa 272; Bigelow v. Wilson, 1 Pick. 485; Bu- 
 chanan v. Monroe, 22 Texas 537. 
 
 62 Hartley V. Harrison, 24 N. Y. 170; Andrews v. Fisk, 101 Mass. 424; 
 Flanagan v. Westcott, 11 N. J. Eq. 264; First National Bank v. Honey- 
 man (Dak.), 42 N. W. Rep. 771. An assumption of a mortgage debt 
 as a part consideration, in a purchase of the mortgagor's equity, is 
 held to make the purchaser the principal debtor and the mortgagor a 
 surety, in Missouri. Nelson v. Brown, 140 Mo. 580 ; Pratt v. Comvny. 
 148 Mo. 291; Wagman v. Jones, 58 Mo. App. 313; Regan v. Williams, 
 185 Mo. 620, 84 S. W. Rep. 959. 
 
 63 Jackson V. Minkler, 10 Johns. 480; Jackson v. Bowen, 7 Cow. 13; 
 Jackson v. Hopkins, 18 Johns. 487 ; Eastman v. Batchelder, 36 N. H. 
 141; Northampton Mills v. Ames, 8 Mete. 1; Henshaw v. Wells, 9 
 Humph. 568; Phyfe v. Riley, 15 Wend. 248; Strang v. Allen, 44 111. 
 428; Bolles v. Carli, 72 Minn. 113; Whitney V. McKinney, 7 Johns. Ch. 
 144; Miller V. Henderson, 10 N. J. Eq. 320; Andrews v. McDaniel, 68 
 N. C. 385; Green v. Marble, 37 Iowa 95; Macomb v. Prentiss (Mich.), 
 
 358
 
 . CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 253 
 
 it and the debt subject to all existing equities between the 
 original parties, depends in the first instance upon the na- 
 ture of the instrument of indebtedness. If it be a bond or 
 any other non-negotiable instrument, the assignee will take 
 both it and the mortgage subject to all the defenses, which 
 might be set up against the mortgagee. 64 But in some of the 
 States if the instrument of indebtedness be a negotiable note, 
 the mortgage, being treated as incident to the debt, receives 
 from the note a negotiable character, and passes to the as- 
 signee free from the equities existing between the mortgagee 
 and mortgagor, unless by express terms the mortgage is as- 
 signed subject to the equities. And to be free from them, the 
 assignment must be made before the debt is due. 05 But if a 
 mortgage covers more than one note, and one of the notes is 
 overdue when all of them are assigned, the assignment is con- 
 
 44 X. W. Rep. 324; Barnes v. Boardman, 140 M:iss. 100; Ooffert v. 
 Wallace, 66 Mich. 618; but the assignee can only maintain actions 
 which accrue after the assignment. Gobbert v. Wallace, 66 Miss. 618. 
 
 * Trustees Union College v. Wheeler, 61 N. Y. 88; Ingraham v. Dis- 
 borough, 47 N. Y. 421; Davis v. Bechstein, 69 N. Y. 440, 25 Am. Rep. 
 218; Pendleton V. Fay, 2 Paige Ch. 202; Ellis V. Messervie, 11 Paige 
 Ch. 467; 8. c. 2 Denio, 640; Twitchell v. McMurtrie, 77 Pa. St. 383; 
 Musgrove v. Kennell, 23 N. J. Eq. 75; Reeves v. Scully, Walk. (Mich) 
 248 ; Croft V. Bunster, 9 Wis. 503 ; Coulding v. Bunster, 76. 503 ; Horts- 
 man v. Gerker, 49 Pa. St. 282; Moffatt v. Hardin, 22 S. C. J) ; Morris 
 V. Peck, 73 Wis. 482; Morgan's Appeal, 126 Pa. St. 500; Harrison r. 
 Burlingame, 48 Hun 212. 
 
 3 Scott t?. Magloughlin (111.), 24 N. E. Rep. 1030; Barnum v. Phe- 
 nix, 60 Mich. 388; Carpenter v. Longan, 16 Wall. 271; Kenicott v. Su- 
 pervisors, 10 Wall. 452; Pierce v. Faunce, 47 Me. 507; Gould v. Marsh. 
 1 Hun 566; Jackson v. Blodgett, 5 Cow. 203; Green v. Hart, 1 Johns. 
 580; Taylor V. Page, 6 Allen 86; Young V. Miller, 6 Gray 152; Breen 
 V. Seward, 11 Gray 118; Webb V. Haselton, 4 Neb. 308, 19 Am. Rep. 
 638. If a grantee of land purchases for full value and withholds p-ut 
 of the consideration, to satisfy an outstanding mortgage, he is person- 
 ally liable therefor, if he does not pay it off. Lobdell V. Ray, 213 III. 
 389, 72 N. E. Rep. 1076. And a grantee who assumes and agrees to 
 pay an outstanding mortgage is liable therefor, the same as the origin;) 1 
 mortgagor. Santee v. Keefe (Iowa 1905), 102 N. W. Rep. 803; Regan 
 . Williams, 185 Mo. 620, 84 S. W. Rep. 959. 
 
 350
 
 253 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 Bidered as to all of the notes so far made after maturity, as to 
 destroy the negotiable character of the mortgage as a security 
 for the notes which are not yet due. 68 But in other courts, 
 the negotiable character of the note is held not to extend to 
 the mortgage, which secures its payment. And although, as 
 far as the personal liability of the mortgagor on the note is 
 concerned, the assignee takes it free from the equities, the 
 mortgage in his hands is subject to them. 67 If the mortgagee 
 or other holder of the mortgage makes an assignment when the 
 mortgage debt had been paid in whole or in part, he will be 
 liable in damages to his assignee for such failure of the sub- 
 ject-matter of the assignment. 68 The assignee of the mort- 
 gagor on the other hand, has a right to redeem the estate and 
 call the mortgagee to account for the rents and profits re- 
 ceived by him while in possession, even though he has per- 
 mitted the mortgagor to enjoy them after notice of the as- 
 signment. For while in possession the mortgagee is trustee 
 as to the rents and profits, not only of the mortgagor, but also 
 of the mortgagor's assignees, and he cannot after notice of 
 the assignment, pay them over to the mortgagor. He must 
 apply them to the satisfaction of the mortgaged debt. 69 But 
 although the mortgagor's assignee has a right to redeem the 
 mortgaged premises, he does not by the assignment assume the 
 personal liability of the mortgagor, unless the deed of as- 
 signment in express terms imposes such liability upon the as- 
 signee as a part of the consideration. 70 Where there is an 
 
 eeAbele r. McGuigan (Mich.), 44 N. W. Rep. 393. See to same gen- 
 eral effect, Whitney v. Traynor, 74 Wis. 289. 
 
 7 Olds V. Cummings, 31 111. 188; Sumner v. Waugh, 56 111. 531; 
 White v. Sutherland, 64 111. 181; Redin V. Branhan, 43 Minn. 283; 
 Boone i: Clark, 129 111. 466. 
 
 68 Eaton v. Knowles, 61 Mich. 625. 
 
 GO Goodman r. White, 26 Conn. 317; Mannisig v. Markel, 19 Iowa 
 104; Smith V. Manning, 9 Mass. 422; Bell V. Mayor, 10 Paige Ch. 49. 
 But a clause in a deed, to a grantee of real estate, that he accepts and 
 agrees to pay a mortgage on the land, is not binding on him, unless he 
 Hccepts the deed. Merriam v. Schmidt, 211 111. 263, 71 N. E. Rep. 986. 
 
 Furnas V. Durgin, 1 19 Mass. 500, 20 Am. Rep. 341 ; Mclnteer V. 
 360
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 253 
 
 agreement of that kind, it is clear that the mortgagor may 
 enforce it, and recover of his assignee, if he, the mortgagor, 
 has been compelled to pay the mortgage debt; but how far, 
 and whether if at all, the mortgagee may take advantage of 
 this agreement to which he is not a privy, and sue the as- 
 signee upon it, is a question upon which the authorities are 
 not a,greed. The better opinion seems to be that, though the 
 
 Shaw, 6 Allen 85; Strong r. Converse, 8 Allen 559; Pike v. Goodnow, 
 12 Allen 474; Braman v. Dowse, 12 Gush. 227; Belmont v. Coman, 22 
 N. Y. 438; Vrooman v. Turner, 69 N. Y. 286, 25 Am. Rep. 195; Shep- 
 herd v. May, 115 U. S. 505; Scheppelman v. Fuerth, 87 Mo. 351; Gage 
 r. Jenkinson, 58 Mich. 161; Gerdine f. Menage, 41 Minn. 417; Brown V. 
 South Boston Sav. Bk., 148 Mass. 300; Searing v. Benton, 41 Kan. 758. 
 A covenant to assume a mortgage is equivalent to a covenant to pay it. 
 Schley r. Fryer, 100 N. Y. 71; Ludington V. Low, 53 N. Y. Super. 391 ; 
 Rice r. Sanders (Mass.), 24 N. E. Rep. 1079; Moran V. Pellifant, 28 111. 
 App. 278; N. Y. Life Ins. Co. v. Aitkin, 57 N. Y. Super. 42. But see 
 contra, Chancellor v. Traphagen, 41 N. J. Eq. 369. But if a deed only 
 contains a clause to the effect that the conveyance is subject to a mort- 
 gage, it will not impose upon the grantee any personal liability for the 
 debt. Trotter v. Hughes, 12 N. Y. 74; Tillotson V. Boyd, 4 Sandf. Ch. 
 516; Weed Sewing Machine Co. V. Emerson, 115 Mass. 554; Fiske V. 
 Tolman, 124 Mass. 254, 26 Am. Rep. 659; Baumgardner v. Allen, 6 
 Munf. 439; Dunn V. Rodgers, 43 111. 260; Fowler v. Fay, 62 111. 375; 
 Chilton v. Brooks (Ind.), 20 N. E. Rep. 125; Brown v. Stillman, 43 
 Minn. 126; Gordon v. Avery, 105 N. C. 532. Nor where are added the 
 words, the said mortgage debt " forms part of the consideration, and is 
 deducted therefrom." Equitable Life Ins. Co. V. Bostwiok, 100 N. Y. 
 628. In such a case, the only effect produced is that the grantee cannot 
 impeach the validity of the mortgage. Ritter v. Phillips, 53 N. Y. 586; 
 Green v. Turner, 38 Iowa 112; Perry V. Kearns, 13 Iowa 174; Sweet- 
 zer V. Jones, 35 Vt. 317. But it will not qualify a general covenant 
 against incumbrances, so as to relieve the mortgagor from liability, 
 unless the mortgage is expressly excepted from the operation of the 
 covenant. Spurr r. Andrew, 6 Allen 420; Estabrook v. Smith, 6 Gray 
 592; Harlow V. Thomas, 15 Pick. 66. But the obligation of the pur- 
 chaser, who agrees to pay the mortgage debt is so far a personal and 
 independent obligation, that payments or acknowledgments by him, 
 will not toll the rtatute of limitations as to the mortgagor. Regan v. 
 Williams, 185 Mo. 620, 84 S. W. Rep. 959; Zoll r. Carnahan, 83 Mo. 
 43; Cottrell v. Shepard (Wis.), 57 N. W. Rep. 984; Ins. Co. v. Elwell, 
 70 N. W. Rep. 335; Trustees Old Almshouse r. Smith, 52 Conn. 434. 
 
 361
 
 253 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 mortgagee cannot maintain an action at law upon the cove- 
 nant for the want of privity between him and the assignee, 
 he will in equity be subrogated to the rights of the mortgagor 
 in the agreement, and can in equity enforce its performance 
 in his own behalf. 71 He could also, in those States where 
 choscs in action may be levied upon and sold under execution, 
 pursue that remedy in a court of law. So completely vested 
 is the right of the mortgagee to sue the purchaser cf the land 
 on his agreement to assume the payment of the mortgage, 
 that a release of the purchaser from the obligation by the 
 
 7i Lawrence v. Fox, 20 N. Y. 268 ; Garnsey r. Rogers, 47 N. Y. 223 ; 
 Thorp v. Keokuk Coal Co., 48 N. Y. 256; Campbell v. Smith, 71 N. Y. 
 26, 27 Am. Rep. 5; Crawford v. Edwards, 33 Mich. 354; Wilson v. 
 King, 23 X. J. 150; Lennig's Estate, 52 Pa. St. 138; Fitzgerald i: 
 Barker, 85 Mo. 13; Kelso V. Fleming, 104 Ind. 180; Palmeter v. Carey, 
 O.T Wis. 426; Keller v. Ashford, 133 U. S. 610; Cooper V. Foss, 15 Neb. 
 516; Shamp V. Meyer, 20 Neb. 223; Keedle V. Flack (Neb.), 44 N. W. 
 Rep. 34. Contra, Mellon V. Whipple, 1 Gray 317; Drury v. Tremont 
 Improvement Co., 13 Allen 168; Marsh V. Pike, 10 Paige Ch. 505; s. c. 
 
 I Sandf. Ch. 210; Carpenter V. Koons, 20 Pa. St. 222. And the obliga- 
 tion is binding upon the grantee, although he does not sign the deed. 
 By his acceptance of the deed he undertakes to perform all the condi- 
 tions and obligations incident thereto. Crawford v. Edwards, 33 Mich. 
 354; Spaulding v. Hallenbeck, 35 N. Y. 204; Huyler v. Atwood, 26 N. 
 J. Eq. 504; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35. And his igno- 
 rance of the fact that the deed contains such a stipulation is no de- 
 fense, if the transaction is free from the taint of fraud. Keller r. Ash- 
 ford, 133 U. S. 610; Moran v. Pellifant, 28 111. App. 278. The state- 
 ment in the text, that the mortgagee cannot maintain an action at law 
 on the purchaser's promise to pay the mortgage debt, is not in accord 
 with the majority of the decisions. It involves the question whether a 
 stranger can maintain an action on a contract, which was made to 
 another for his benefit ; and upon this general question, the authorities 
 are not agreed. The author believes that there is not a sufficient privity 
 of contract to support an action at law upon the promise to pay, unless 
 the contract creates a biilment. If money be given to A. to hand to B., 
 it is a mandatum, and B. may recover it from A.; B. is a quasi cestui 
 que trust. But if A. promises B. to pay a sum of money to C., in sat- 
 isfaction of a debt owing by A. to B., there is no bailment, and, there- 
 fore, no obligation to C. But see the author's article on the subject in 
 
 II Cent. L. J. 161. See to the same effect Willard v. Wood, 4 Mackey 
 538; s. c. 135 U. S. 309; Keller v. Ashford, 133 U. S. 610. 
 
 362
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 254 
 
 mortgagor has been held to have no effect as to the mortga- 
 gee's right of action. 72 Likewise, so independent of the mort- 
 gagor's liability is the grantee's liability to the mortgagee on 
 his covenant to assume or pay the mortgage debt, that such 
 a grantee cannot escape the liability thereby assumed by 
 questioning the validity of the mortgage or the mortgage 
 debt. 73 And where, by mistake, a mortgage did not include 
 within the description one tract of land, which the mortgagor 
 subsequently sold under an agreement that the purchaser 
 shall assume the payment of the mortgage debt, it was held 
 that the lien of the mortgage attached to the land in the 
 hands of the grantee. 74 On the other hand, the obligation of 
 the mortgagor on his note or bond for the mortgage debt is 
 not in any wise affected by the purchaser's agreement to as- 
 sume the payment of the mortgage debt, unless the mortgagee 
 has consented to the novation. 75 
 
 254. Effect of payment or tender of payment. If pay- 
 ment or tender of payment, by parties having the right to 
 redeem, be made when tfie debt falls due, it works a complete 
 discharge of the mortgage, divests the mortgagee of all his 
 rights and remits to the mortgagor all his rights at common 
 law, as fully as if there had been no mortgage. And if the 
 mortgagee is in possession, ejectment will lie, and he will be 
 ousted without any formal release or discharge of the mort- 
 gage. 76 A formal discharge of the mortgage would, however, 
 
 72 Bay v. Williams, 112 111. 91, 54 Am. Rep. 209; Gifford 0. Corrigan, 
 117 N. Y. 257. 
 
 73 Altman v. Banholzer, 36 Minn. 57. 
 
 74 Sidwell v. Wheaton, 114 111. 267. 
 
 7 Shepherd r. May, 115 U. S. 505; Union Mut. L. Ins. Co. v. Han- 
 ford, 27 Fed. Rep. 588; Kelso V. Fleming, 104 Ind. 180; Hutchinson V. 
 Wolls, 67 Iowa 430; Chilton r. Brooks (Ind.), 20 N. E. Rep. 125; Sear- 
 ing v. Benton, 41 Kan. 758. 
 
 76\Vhitcomb r. Simpson, 39 Me. 21; Camp v. Smith. 5 Crinn. 80; 
 Erskine r. Townsend, 2 Mass. 495; Holman r. Bailey, 3 Mete. 55; Doocly 
 r. Pierce, 9 Allen 141 ; Stewart v. Crosby, 50 Me. 130; Currier r. Gale, 
 9 Allen 522; Maynard r. Hunt, 5 Pick. 240; Munson r. Munson, 30 
 
 363
 
 254 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 be required, if the mortgage contained a clause which pro- 
 vides for a conveyance when the condition is performed. 77 
 This will be found to be the general rule in all the States. 
 But where the tender or payment is made after the condition 
 has been broken, the same variance of opinion is encountered 
 as in other branches of the law of mortgages, where the com- 
 mon-law and lien theories conflict. At common law, since the 
 default made the estate absolute in the mortgagee, and left in 
 the mortgagor only the equity of redemption, the mere pay- 
 ment or tender of payment will not revest the legal title in 
 the mortgagor. A formal discharge is requisite, and if the 
 mortgagee refuses to make it, the mortgagor's only remedy is 
 in equity, by a proceeding to redeem the property. He cannot 
 maintain an action of ejectment, for he has no legal estate. 78 
 
 Conn. 425. But the payment cannot be enforced by either party before 
 the debt falls due, and the mortgagee may refuse to accept it. But if 
 the debt and interest up to the fixed day of payment be tendered, it 
 will have the same effect upon the mortgage as if tendered on the 
 proper day. Burgoyne v. Spurling, Cro. Car. 283; Brown v. Cole, 14 
 Sim. 427; Scott v. Frink, 53 Barb. 533; Abbe V. Goodwin, 7 Conn. 377; 
 Hoyle V. Cazabat, 25 La. An. 438. And although nothing but actual 
 payment will extinguish the debt, a simple tender of payment will dis- 
 charge the mortgage, and prevent a subsequent foreclosure. Co. Lit. 
 299 b ; Martindale v. Smith, 1 Q. B. 389; Willard v. Harvey, 5 N. H. 
 252; Kortright v. Cady, 21 N. Y. 343; Darling V. Chapman, 14 Mass. 
 101; Maynard v. Hunt, supra; Grain v. McGoon, 86 111. 431, 29 Am. 
 Rep. 37. Since a tender of the sum due on a mortgage, re-vests the 
 title in the mortgagor, he can maintain ejectment against a subsequent 
 purchaser. Leet v. Armbruster, 143 Cal. 663, 77 Pac. Rep. 653. 
 
 77 See cases cited in preceding note (76). 
 
 78 Smith v. Kelly, 27 Me. 237 ; Stewart v. Crosby, 50 Me. 130 ; How- 
 ard v. How, 3 Mete. 548; Holman v. Bailey, 76. 55; Howe r. Lewis, 14 
 Pick. 329; Grover v. Flye, 5 Allen 543; Pillsbury V. Smyth, 25 Me. 
 427; Dyer V. Toothaker, 51 Me. 380; Cross v. Robinson, 21 Conn. 379.. 
 Technically, this is true. But even in those States, proof of payment 
 or tender of payment will prevent the enforcement of the mortgage 
 against the mortgagor. Wade v. Howard, 11 Pick. 289; Breckenridge 
 V. Brooks, 2 A. K. Marsh 337; Slayton v. Mclntire, 11 Gray 271; Gray 
 V. Jenks, 3 Mason 520; Williams v. Thurlow, 31 Me. 392; Faulkner V. 
 Breckenbrough, 4 Rand. 245; Pike V. Goodnow, 12 Allen 472; Arnot V. 
 Post, 6 Hill. 65. 
 
 364
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 255 
 
 In those States where the mortgage is regarded as a lien, even 
 after condition broken, a tender of payment as well as pay- 
 ment will operate as a discharge or extinguishment of the 
 mortgage both before and after the default. And if the 
 mortgagee is in possession, an ejectment suit may be instituted 
 against him. The mortgagor is not obliged to resort to equity 
 to obtain a formal cancellation of the mortgage. 70 If there 
 are two or more mortgagees, payment to one of them, unless 
 it is made with the consent of the others, will not affect the 
 rights of the others in the mortgage. 80 
 
 255. Who may redeem. If the mortgage debt is actually 
 paid, the payment will, as against the mortgagee, extinguish 
 the mortgage and the mortgagee's rights thereunder, who- 
 ever pays the debt. But in order that a tender of payment 
 may have that effect, it must be made by some one who is 
 entitled to redeem. 81 Any one, who has an interest in the 
 mortgaged premises, claiming under the mortgagor, has this 
 right. And this is the case, whether his interest be legal 
 or equitable, an estate or a lien. The only requisite is a 
 privity of estate with the mortgagor. Among such may be 
 enumerated grantees, subsequent incumbrancers, whether 
 they be junior mortgagees or judgment-creditors, heirs, dev- 
 isees, personal representatives, tenants for years, the hus- 
 band for his curtesy, and the widow for her dower or join- 
 's Jackson v. Stackhouse, 1 Cow. 122 ; Farmers' Ins., etc., Co., v. 
 Edwards, 26 Wend. 541; Runyan v. Mersereau, 11 Johns. 538; Den v. 
 Spinning, 1 Halst. 471; Shields v. Lozear, 34 N. J. L. 496; Rickett v. 
 Madeira, 1 Rawle 325; Paxon V. Paul, 3 Har. & McH. 399; Furbish v. 
 Goodwin, 25 N. H. 425; Howard v. Gresham, 27 Ga. 347; Champney v. 
 Coope, 32 N. H. 543; Griffin v. Lovell, 42 Miss. 402; Holt v. Rees, 44 
 111. 30; Armitage v. Winkliffe, 12 B. Mon. 488; Briggs t\ Seymour, 17 
 Wis. 255; Fisher v. Otis, 3 Chand. (Wis.) 83; Crain v. McGoon, 86 111. 
 431, 29 Am. Rep. 37; Leet v. Armbruster, 143 Cal. 663, 77 Pac. Rep. 
 653. 
 
 soMaddox v. Bramlett, 84 Ga. 84. 
 siMcCulla v. Beadleston (R. I.), 20 Atl. Rep. 11. 
 
 365
 
 255 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 ture. 83 And in tendering payment the mortgagee or as- 
 signee may be required to deliver up the notes or other evi- 
 dences of indebtedness before actual payment, such a demand 
 would not affect the effectiveness of the tender. 83 But, in 
 order that tender of payment may have the effect of ex- 
 tinguishing the mortgage, the whole debt must be tendered, 
 together with all the interest and costs that have accrued 
 thereon to the date of the tender. Therefore, if the widow, 
 for example, desires to redeem for the preservation of her 
 dower right, she must offer to pay the whole debt. The 
 mortgagee can refuse to accept only her share of it. And 
 
 82Lomax v. Bird, 1 Vern. 182; Gibson v. Crehore, 5 Pick. 146; Grant 
 r. Duane, 9 Johns. 591; Ex parte Willarcl, 5 Wend. 94; Boarman f. 
 Catlett, 13 Smed. & M. 149; Moore v. Beasom, 44 N. H. 215; Fray v. 
 Drew, 11 Jur. (N. s.) 130; Burnett v. Dennistor, 5 Johns. Ch. 35; 
 Thompson r. Chandler, 7 Greenl. 377; Bacon v. Bowdoin, 22 Pick. 401; 
 Goodman v. White, 26 Conn. 317; Newhall V. Savings Bank, 101 Mass. 
 431; Rogers V. Myers, 68 111. 92; Kimmel r. Willard, 1 Dougl. (Mich.) 
 217; Wiley r. Ewing, 47 Ala. 418; Calkins v. Munsell, 2 Root, 333; 
 McLaughlin v. Curts, 27 Wis. 644; Hamilton v. Dobbs, 19 N. J. Eq. 
 227; Hitt v. Holiday, 2 Litt. 332; Van Buren v. Olmstead, 5 Paige 
 Ch. 9; Stainback v. Geddy, 1 Dev. & B. Eq. 479; Chandler i: Dyer, 
 37 Vt. 345; Bridgeport V. Blinn, 43 Conn. 274; Kingsbury v. Buckner, 
 70 111. 514; Casserly v. Witherbee, 119 N. Y. 522; Buchanan v. 
 Reid, 43 Minn. 172; Sanford v. Kane, 24 111. App. 504; s. c. reversed, 
 127 111. 591; Ryan V. Newcomb, 23 111. App. 113; s. c. reversed, 125 
 111. 91; Willard v. Finnegan, 43 Minn. 476; Barr r. Van Alstine, 120 
 Ind. 590. A tenant for years (Kebabian V. Shinkle, 26 R. I. 505, 59 
 Atl. Rep. 743), attaching creditors (Whitney v. Mfg. Co., 187 Mass. 
 557, 73 N. E. Rep. 663) and subsequent lienholders, are all entitled 
 to redeem. Dickenson v. Duckworth (Ark. 1905), 85 S. W. Rep. 82. 
 The purchaser of standing trees, subject to a mortgage, is entitled 
 to redeem as to such trees, the same as the mortgagor could have done. 
 Rothschild t'. Lumber Co., 139 Ala. 571, 36 So. Rep. 785; Heflin V. 
 Bingham, 56 Ala. 566, 28 Amer. Rep. 776. 
 
 3 Stiger v. Bent, 111 111. 328. A right of redemption cannot be ex- 
 tended beyond that which existed when the mortgage was executed. 
 Barnitz v. Beverly, 163 U. S. 118, 41 L. Ed. 93. And see, as to effect 
 of act forfeiting title of mortgagee for not recording deed of fore- 
 closure, as required by Illinois statute of 1872, Bradley v. Lightcap, 
 195 U. S. 2-4, 49 L. Ed. 65. 
 366
 
 CH. XI.] RIGHTS OP MORTGAGOR AND MORTGAGEE. 256 
 
 this is true of any one who owns only a portion of the mort- 
 gaged premises. 84 
 
 256. What acts extinguish the mortgage. No acts, which 
 do not amount to a payment of the debt or a release of the 
 mortgage, will cause an extinguishment of the mortgage. A 
 mere change in the form of the debt as the substitution of 
 a bond for a note, or the execution of a new note in the 
 place of the old one will not have that effect, unless such 
 substitution or change is made with the intention that the 
 new instrument of indebtedness shall be accepted as an ac- 
 tual payment of the old debt. And this has been held to be 
 the case where a note for a smaller amount has been substi- 
 tuted. When and how the intention of payment can be 
 shown in such a case is a very difficult matter to explain 
 by any concise and comprehensive statement. It depends 
 upon the facts of each case, and is itself a question of fact, 
 whether the person making the change intended it to operate 
 as a satisfaction of the old debt. 85 The mortgagee may, of 
 course, release any part of the mortgaged property from the 
 mortgage lien. This is a very common transaction, where 
 
 8*McCabe V. Bellows, 7 Gray 148; McCabe V. Swap, 14^ Allen 191; 
 Gibson v. Crehore, 5 Pick. 146; Norris r. Moulton, 34 N. H. 392; 
 Downer t?. Wilson, 38 Vt. 1 ; Seymour v. Davis, 35 Conn. 264 ; Douglass 
 V. Bishop, 27 Iowa, 216; Lamb V. Montague, 112 Mass. 352; Franklin 
 V. Gorham, 2 Day, 142; Hunter v. Dennis, 112 111. 568; Watts f. Bon- 
 ner, 66 Mich. 629; Detweiler V. Breckenkamp, 83 Mo. 45. Where a note 
 is payable on demand, a suit to redeem will lie at any time before fore- 
 closure. Kebabian r. Shinkle, 26 R. I. 505, 59 Atl. Rep. 743. 
 
 so Parkhurst r. Cummings, 56 Me. 159; Fowler v. Bush, 21 Pick. 
 230; Grafton Bk. r. Foster, 11 Gray, 265; Mitchell v. Clark, 35 Vt. 
 104; Boxheimer v. Gunn, 24 Mich. 376; Hadlock r. Bullfinch, 31 Me. 
 246; Euston v. Friday, 2 Rich. Eq. 427; Bank v. Rose, 1 Strobh. Eq. 
 257; BrinckerhofT v. Lansing, 4 Johns. Ch. 65; Barker r. Bell, 37 Ala. 
 359; Vogle V. Ripper, 34 111. 106; Rogers V. Traders' Ins. Co., 6 Paige, 
 Ch. 583; Jordan f. Smith, 30 Ohio, 500; Citizen's Bank v. Dayton, 116 
 111. 257; Reid v. Abernethy, 77 Iowa, 438; Burson v. Andes, 83 Va. 
 445. A tender of the amount due is held to extinguish the mortgage. 
 in California. Leet v. Annbruster, 143 Cal. 663, 77 Pac. Rep. 653. 
 
 367
 
 'J57 RIGHTS OF MORTGAGOR AND MORTGAGEE. [PART I. 
 
 the mortgagor sells a part of such property. 86 And the par- 
 ties may, and often do, stipulate for such partial release, 
 on payment of installments on the debt. 87 It is doubtful 
 what is the effect of a substitution of a new mortgage. If 
 a new note and mortgage is given for the balance after part 
 payment, the old mortgage is held to be completely extin- 
 guished, and the new mortgage cannot claim priority over 
 junior incumbrances already recorded. 88 On the other hand, 
 it has been held that the substituted mortgage may take the 
 place of the original mortgage, on the ground that there had 
 not in that case been any absolute payment or extinguish- 
 ment of the original debt. 89 
 
 257. The effect of a discharge. Where the mortgage is 
 discharged by the mortgagor's payment of the debt, it is 
 extinguished altogether; particularly, where there are junior 
 ineumbrances. The mortgagor cannot keep it alive, even 
 though he goes through the formality of an assignment. A 
 merger results from the union of the two interests in one 
 person. 90 This is, however, not the rule where the assignee 
 
 se Werner V. Tuch, 52 Hun 269; Vawter v. Crafts, 41 Minn. 14: 
 Boone V. Clarke, 129 111. 4G6. By statute, in Missouri, on payment of 
 one or more notes secured by mortgage, the Recorder is authorized to 
 cancel the debt, pro tanto and to release any part of the mortgaged 
 premises. See Laws Missouri, 1897, p. 203; R. S. Mo. 1899, Sees. 
 4360, 4361. 
 
 ST Vawter v. Crafts, 41 Minn. 14; McComber v. Mills, 80 Cal. Ill; 
 Boone v. Clark, 129 111. 466; Werner V. Tuch, 52 Hun, 269. 
 
 ss Smith v. Bynum, 92 N. C. 108; Edwards v. Thorn, 25 Fla. 222. 
 
 8 Clark V. Bullard, 66 Iowa, 747 ; Council Bluffs Lodge v. Bullards. 
 67 Iowa, 674; Van Duyne v. Shaun, 41 N. J. Eq. 311, reversing s. c. 
 39 N. J. Eq. 6; Ponder v. Ritzinger, 102 Ind. 571; s. c. 119 Ind. 597. 
 
 oWadsworth v. Williams, 100 Mass. 126; Strong v. Converse, 8 
 Allen, 559; Wade V. Beldmeir, 40 Mo. 486; McGiven v. Wheelock, 7 
 Barb. 22; Mead 17. York, 6 N. Y. 449; Thomas' Appeal, 30 Pa. St. 
 378; Richard V. Talbird, Rich. Ch. 158; Robinson V. Urquhart, 12 N.' 
 J. Eq. 515; Perkins r. Steame, 23 Texas, 561; Champney v. Coope, 
 32 N. Y. 543; Bowman v. Manter, 33 N. H. 530; Large V. Van Doren, 
 14 N. J. Eq. 208; Kremerer v. Bloom, 65 Iowa, 363; Shipley v. Fox, 
 368
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 257 
 
 of the mortgagor has assumed the payment of the debt. 
 Payment by the mortgagor in that case operates as an equi- 
 table assignment. 01 And so, also, will there be a merger, 
 where the payment is made by an assignee of the mort- 
 gagor who has assumed the payment of the debt. 02 It has, 
 also, been held that if there are no junior incumbrancers, a 
 satisfied mortgage may be revived, and be made a good and 
 effectual security for a new debt between new parties. But 
 the position is not without doubt as to its soundness. 03 And 
 it is certainly not recognized as valid against junior incum- 
 brancers. 04 If the mortgage has been delivered up and can- 
 celled through fraud, accident or mistake, the court of equity 
 
 69 Mel. 572; Eaton r. Simonds, 14 Pick. 98; Crafts v. Crafts, 13 Gray, 
 360; Cherry r. Monro, 2 Barb. Ch. 618; Brown f. Laphani, 3 Cusli. 
 551, 554; Wedge r. Moore, 6 Id. 8; Robinson v. Urquhart, 1 Beasl. 
 515; Comm. V. Chesapeake, etc., Co., 32 Mod. 501; Kilborn v. Rob- 
 bins, 8 Allen, 466, 471; Bemis t'. Call, 10 Id. 512. 
 
 i>i Baker V. N. W. Guaranty Loan Co., 36 Minn.; Funk r. MoReynold, 
 
 33 111. 481, 495; Halsey r. Reed, 9 N. J. Eq. 446; Kinnear v. Lowell, 
 
 34 Me. 299; Stillman v. Stillman, 21 N. J. Eq. 126; Jumel V. Jumel, 
 7 1'aige, 591; Cox v. Wheeler, 7 Id. 248, 257. 
 
 2Mickles v. Townsend, 18 N. Y. 575; Stoddard v. Rotton, 5 Bosw. 
 378; Butler V. Seward, 10 Allen, 466; Mickles V. Dillaye, 15 Hun, 
 296; Pike V. Goodnow, 12 Allen, 472; Weed, etc., Co. v. Emerson, 115 
 Mass. 554; Fowler v. Fay, 62 111. 375; Fitch r. Cotheal, 2 Sandf. Ch. 
 29; Lilly r. Palmer, 51 111. 331; Fry r. Vanderhoof. 15 Wis. 3!)7. 
 See Kellogg v. Ames, 41 N. Y. 250. A conveyance by either the 
 mortgagee or his assignee to the mortgagor, or his assignee, discharges 
 the mortgage. Nickell v. Tracy, 91 N. Y. S. 287; 100 App. Div. 80. 
 
 3 Marvin v. Vedder, 5 Cow. 671; Walker r. Snediker. 1 Hoffm. Ch. 
 145; Star v. Ellis, 6 Johns. Ch. 392; Johnson v. Anderson, 30 Ark. 
 745 : Hurser v. Anderson, 4 Edw. Ch. 17; International Bk. r. Bowen, 
 80 111. 541; Jordan v. Furlong, 19 Ohio St. 89. And it seems the ob- 
 jection to this principle is greatly lessened, if not altogether removed, 
 if the assignment is made at the mortgagor's request to a third 
 person. Although lifeless in this third person's hands, it will be a 
 good and binding security when assigned to a new creditor upon a new 
 or different consideration. Bolles r. Wade, 4 N. J. Eq. 458; Slieddy 
 v. Gervan, 113 Mass. 378; Hoy v. Bramhall, 11 N. J. Eq. 563; Gould- 
 ing r. Bunster, 8 Wis. 513; Wilson r. Schoenlaub, 99 Mo. 96. 
 
 Man v. Elkins, 10 N. Y. S. 488. 
 
 24 369
 
 258 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 will revive it and enforce it, at least against the mortgagor 
 and all parties claiming under him, who have notice of the 
 equity. And a subsequent purchaser will be bound by the 
 equity if the mortgage has not been satisfied on the records; 
 for he is compelled to take notice of that fact, and it is suffi- 
 cient to put him on his inquiry. 96 
 
 258. When payment will work an assignment. Payment 
 of the debt by the mortgagor, as has been explained, always 
 discharges the mortgage, though the satisfaction by the mort- 
 gagee be in form an assignment to himself or to one in trust 
 for him. 96 And where the debt is paid by a volunteer a 
 stranger who is not interested in the mortgaged premises 
 
 as Grimes V. Kimball, 4 Allen, 578 ; Joslyn v. Wyman, 5 Allen, 63 ; 
 Howe v. Wilder, 11 Gray, 267; Lawrence v. Stratton, 6 Cush. 163; 
 Stover v. Wood, 26 N. J. Eq. 417; Fassett V. Smith, 23 N. Y. 252; Mid- 
 dlesex r. Thomas, 20 N. J. Eq. 39; De Yampert v. Brown, 28 Ark. 
 166; Stanley V. Valentine, 79 111. 544; Robinson V. Sampson, 23 Me. 
 388. And such relief will also be afforded where mortgage has been 
 satisfied, instead of being assigned. Dudley v. Bergen, 23 N. J. Eq. 
 397; Champlin t'. Laytin, 18 Wend. 407; Russell v. Mixer, 42 Cal. 
 475; Bruce v. Bonney, 12 Gray, 107; Hughes v. Torrence, 111 Pa. St. 
 611; Charleston City Council v. Ryan, 23 S. C. 339; 53 Am. Rep. 713; 
 Crippen v. Chappel, 35 Kan. 495; Stiger v. Bent, 111 111. 328. But it 
 must be a mistake of fact. If the satisfaction is obtained through a 
 mistake of law, no relief will be granted, unless from the tender age 
 or weak mind of the person injured, the charge of undue influence 
 may be established. Peters v. Florence, 38 Pa. St. 194; Hampton f. 
 Nicholson, 23 N. J. Eq. 423 ; Smith v. Smith, 15 N. H. 55. A mortgage 
 executed or satisfied under duress, by threats of a prosecution, is void 
 and can be cancelled, in equity. Gray v. Freeman (Tex. 1905), 84 S. 
 W. Rep. 1105. See, also, Galusha v. Sherman, 81 N. W. Rep. 495, 47 
 L. R. A. 417; Landa V. Obert, 78 Tex. 33, 14 S. W. Rep. 297; Bank 
 v. Sargent (Neb.), 91 N. W. Rep. 595; Bond Ass'n v. Klee (Neb.), 
 97 N. W. Rep. 476; Cribs v. Soule (Mich.), 49 N. W. Rep. 587, 24 
 Am. St. Rep. 166; Bryant v. Peck, 154 Mass. 460, 28 N. E. Rep. 
 678; Schauerner v. Lissauer (N. Y.), 18 N. E. Rep. 741; Earle r. 
 Hosiery Co., 36 N. J. Eq. 192; Adams v. Bank, 23 N. E. Rep. 7, 15 
 Am. St. Rep. 447, 6 L. R. A. 491; Bank V. Kusworm (Wis.), 53 N. 
 W. Rep. 564, 43 Am. St. Rep. 880, 26 L. R. A. 48. 
 
 oo See ante, Sees. 254, 257. 
 370
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 258 
 
 the mortgage will be discharged and extinguished, unless an 
 assignment has actually been made to him. He cannot set 
 up the claim to an equitable assignment, although he may 
 have paid the debt at the mortgagor 's request. 97 On the other 
 hand, if there is an actual assignment to the volunteer payor, 
 no additional circumstances can make the transaction work 
 a discharge of the mortgage. 98 But when the payment is 
 made by one who is not under a primary personal obligation 
 to pay, who is secondarily liable as surety or indorser, or 
 who has an interest in the mortgaged property, and, conse- 
 quently, a right to redeem, payment does not always operate 
 as a discharge. And the question is not determined so much 
 by the form of the acknowledgment of payment as the in- 
 tention of the party paying. That intention may be derived 
 from the facts connected with the transaction and established 
 by parol evidence. And where it is, beyond a doubt, to the 
 interest of the one paying that the mortgage should be kept 
 alive, equity will look upon the transaction as an assignment 
 and not a discharge. 90 Especially is .his the case where the 
 person paying has only a part interest in the premises, or 
 is a surety, and by paying becomes entitled to contribution 
 or satisfaction from the mortgagor and others interested in 
 the property. Payment in such cases never works a dis- 
 charge; the mortgage survives, and may afterwards be en- 
 forced against all parties affected with notice. 1 But when 
 
 7 Downer v. Wilson, 33 Vt. 1. See Guy v. De Uprey, 16 Cal. lOff. 
 But see Crippen v. Chappel, 35 Kan. 495, where it has been held that 
 one paying the debt at the request of the deceased mortgagor's ad- 
 ministrator, in reliance upon the validity of a new mortgage given by 
 the administrator, can claim the rights of an assignee of the old mort- 
 gage, although it has been duly cancelled. 
 
 "Brown r. Pcott, 87 Ala. 453. 
 
 09 A payment by a widow, of a mortgage on her homestead will be 
 kept alivo, in equity, and the heirs can be made to contribute. Dins- 
 moor v. Rowse, 211 111. 317, 71 N. E. Rep. 1003. And for similar 
 payment by a subsequent mortgagee, see Brethaur v. Schorer, 77 Conn. 
 575. 00 Atl. Rep. 125. 
 
 ' Hinds v. Ballou. 44 N. H. 619; Stantons v. Thompson, 40 N. H. 
 
 371
 
 258 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 such a person pays the mortgage debt, he can insist upon the 
 transfer to him of the notes or other evidences of indebted- 
 ness and the mortgage. a It has, however, been held that he 
 cannot require them to be assigned to him.? 
 
 272; Butler r. Seward, 100 Allen, 4C6; Leavitt r. Pratt, 53 Me. 14; 
 Kellogg r. Ames, 41 N. Y. 259; Abbott v. Kasson, 72 Pa. St. 185; 
 Walker r King, 44 Vt. 601; Wadsworth v. Williams, 100 Mass. 126; 
 Champlin r. Laytin, 18 Wend. 407; Dudley r. Bergen, 23 N. J. Eq. 
 397; Russell r. Mixer, 42 Cal. 475; Baker v. Flood, 103 Mass. 47; 
 Ebert f. Gerding, 116 111. 216; Stelzich v. Weidel, 27 111. App. 177; 
 Loud v. Lane, 8 Met. 517; Bacon v. Bowdoin, 22 Pick. 401; McCabe 
 r. Bellows, 7 Gray, 148; Houghton v. Hapgood, 13 Pick. 158; Spencer 
 r. Waterman, 36 Conn. 342; Foster V. Billiard, 1 Story, 77; Swaine 
 r. Perine, 5 Johns. Ch. 490 ; Bell v. Mayor, etc., 10 Paige, 4!) ; Lamson 
 r. Drake, 105 Mass. 567; Davis v. Wetherell, 13 Allen, 63; McCabe <J. 
 Swap, 14 Allen, 191; Newhall v. Savings Bank, 101 Mass. 431. And 
 payment by a purchaser of the equity of redemption will not operate 
 in equity as an extinguishment of the mortgage, as against the mort- 
 gagor, sureties and junior incumbrancers, although the mortgage is 
 formally satisfied and cancelled, unless he has become primarily liable 
 by his assumption of the p" ^ment of the mortgage, as the consideration 
 of the conveyance to him. Savage V. Hall, 12 Gray, 363 ; Pitts V. 
 Aldrich, 11 Allen, 39; Abbott r. Kasson, 72 Pa. St. 183; Pool v. 
 Hathaway, 22 Me. 85; Skeel v. Spraker, 8 Paige Ch. 182; Millspauch 
 v. McBride, 7 Paige Ch. 509; Shin V. Fredericks, 56 111. 443; Fitch v. 
 Cotheal, 2 Sandf. Ch. 29; Lilly r. Palmer, 51 IllfSSl; Carpenter v. 
 Gleason, 58 Vt. 244; Georgia Chemical Works v. Cartledge, 77 Ga. 
 547; Gerdine v. Menage, 141 Minn. 417. But in law, an actual formal 
 assignment is required to keep the mortgage alive. Den v. Dimon, 10 
 N. J. L. 156; Kinna v. Smith, 17 N. J. Eq. 14; Wade v. Howard, 11 
 Pick 289. And a part owner who pays the debt may require a formal 
 assignment to~ him. Bayles V. Hunted, 40 Hun, 376. But if the mort- 
 gage is paid off by such part owner with funds, in which all the owners 
 are interested, as where the widow pays the debt with the proceeds of 
 the growing crop, she cannot enforce the mortgage against the deceased 
 mortgagor's heirs and distributees. Skinner V. Chapman, 78 Ala. 376; 
 Dinsmoor r. Rowse, 211 111. 317, 71 N. E. Rep. 1003; Brethaur v. 
 Schorer, 77 Conn. 575, 60 Atl. Rep. 125. 
 
 2Stiger v. Bent, 111 111. 328. 
 
 3 Holland V. Citizen's Sav. Bank (R. L), 19 Atl. Rep. 654; McCulla 
 T. Beadlestor (R. I.), 20 Atl. Rep. 11. But see contra, Nelson v. 
 Loder, 55 Hun, 173. 
 
 372
 
 CH. XI.] RIGHTS OP MORTGAGOR AND MORTGAGEE. 259 
 
 259. Registry of mortgages and herein of priority. It is 
 a general rule in this country that if a mortgage is duly 
 registered in the recorder's office, the record will be construc- 
 tive notice of the mortgage to all subsequent purchasers and 
 incumbrancers, and gives to it a priority over such subse- 
 quently acquired interests.* But the record is only notice 
 of the mortgage as recorded; and if there is an error in the 
 registration, as, for example, showing the mortgage to be 
 security for a less amount, it has priority over subsequent 
 purchasers for the amount recorded, and not for the actual 
 amount expressed in the mortgage. The purchaser is not re- 
 quired by the registry laws to inspect the original deeds, for 
 he is permitted to presume that the record is a correct copy. 
 So, also, if a mortgage appears on the record, through an 
 error in registration, to be invalid from defective execution, 
 the investigator of titles is not required to go behind the 
 registry and inquire into the cause of the invalidity; nor is 
 he affected by such a record with notice of the equities 
 which might arise out of the irregular deed between the par- 
 ties to the same. 5 But the index is not a part of the record, 
 and an error appearing therein will not prejudice the rights 
 of the mortgagee. It is not even necessary for the mortgage 
 
 * See post, Sees. 578, 580, where the recording law is discussed gen- 
 erally. 
 
 5 Russell V. Shields, 11 Ga. 636; Frost r. Beekman, 1 Johns. Ch. 288; 
 8. c. 18 Johns. 544; Terrell v. Andrew Co., 44 Mo. 309; Farmers' Bk. 
 V. Bronson, 14 Mich. 369. A different rule is held in other States, under 
 the peculiar phraseology of their statutes of registration. Brook's Ap- 
 pcil. 64 Pa. St. 127; Wood's Appeal, 82 Pa. St. 116; Atkinson V. 
 Hewett, 63 Wis. 396; Ward v. Ward, 131 Fed. Rep. 946. Where the 
 recording law provides for the separate registration of deeds and 
 mortgages, the fact that a deed, absolute in form, may, in fact, be a 
 mortgage, does not authorize the recording of such deed as a mort- 
 gage. Kent . Williams (Cal. 1905), 79 Pac. Rep. 527. In some 
 States statutes have been passed, making defectively recorded instru- 
 ments valid, after a given time. Such statutes of repose are generally 
 enforced. See R. S. Mo. 1899, Sec. 3118 construed in German Bank 
 v. Real Est. Co. 150 Mo. 570, 51 8. W. Rep. 691. 
 
 373
 
 260 RIGHTS OF MORTGAGOR AND MORTGAGEE. [PAKT I. 
 
 to be indexed. 6 It has also been held that the subsequent 
 purchaser is not charged with constructive notice of the ex- 
 istence of a mortgage, because the land had been previously 
 sold under the order of a court of record in which the execu- 
 tion of a mortgage to secure the unpaid balance of the pur- 
 chase money was expressly required. 7 The registration must 
 also comply with the essential requirements of the registry 
 laws, in order to raise a constructive notice of the mortgage. 8 
 What constitutes a proper record is the same in most of the 
 States, whether the deed be a mortgage or an absolute con- 
 veyance. The subject, therefore, will be more clearly eluci- 
 dated under the head of titles to real property. 9 
 
 260. Rule of priority from registry, its force and effect. 
 But, notwithstanding the registry laws provide for the re- 
 cording of mortgages like other deeds, the general rule is 
 that an unrecorded mortgage is still good between the parties 
 themselves, and all other persons claiming under them, with- 
 out a valuable consideration, or with notice of the mortgage. 10 
 
 Curtis v. Lyman, 24 Vt. 338; Dodge v. Potter, 18 Barb. 193; Mutual 
 Life Ins. Co. v. Dake, 1 Abb. N. C. 381; Throckmorton v. Price, 
 28 Texas, 605; Bishop v. Schneider, 46 Mo. 472, 2 Am. Rep. 533; Shell 
 c. Stein, 76 Pa. St. 398, 18 Am. Rep. 410; contra, Walley r. Small, 25 
 Iowa, 184; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772. 
 
 TPiester v. Piester, 22 S. C. 139. 
 
 s Wood v. Reeves, 23 S. C. 382. 
 
 See post, Sees. 580, 582. In respect to the priority of a sub- 
 stituted mortgage over incumbrances already recorded, see ante, Sec. 
 256. 
 
 10 And the rule is the same if the mortgage has been defectively 
 executed. Nice's Appeal, 54 Pa. St. 200; Raconillet v. Sansevain, 32 
 Cal. 376; Bibb V. Baker, 17 B. Mon. 292; Sparks v. State Bank, 7 
 Blackf. 469; Harris v. Norton, 16 Barb. 264; Leggett v. Bullock, 
 Busb. L. 283; Wyatt v. Stewart, 34 Ala. 716; Ray v. Hallenbeck, 42 
 Fed. Rep. 381; Short v. Fogle, 42 Kan. 349; Mann v. State, 116 Ind. 
 363; contra, White v. Denman, 1 Ohio St. 110; Henderson r. McGee, 
 6 Heisk. 55. But see post. Sees. 580, 581. Under the New York stat- 
 ute, the absence of registration does not effect the validity of the 
 mortgage, as between the original parties. Ward V. Ward, 131 Fed. 
 374
 
 CH. XI.] BIGHTS OF MORTGAGOR AND MORTGAGEE. 260 
 
 If the subsequent purchase is for value and without notice, 
 the recorded deed has the priority over the unrecorded mort- 
 gage. And a recorded mortgage has been held to take prece- 
 dence to a prior unrecorded mortgage, even though the debt 
 of the former was incurred at a time anterior to the execution 
 of the latter. Though the record be destroyed, the priority 
 gained by registration will not be affected thereby, if it can 
 be established by other evidence. 11 The parties may also by 
 agreement change the order of priority, and give to a sub- 
 sequently recorded deed priority over one already recorded, 
 but the agreement will only bind the parties and their privies 
 with notice. 12 But where two mortgages are executed and 
 recorded simultaneously, they are concurrent liens on the 
 property. 13 And where they are executed simultaneously, 
 and by the understanding of the parties, express or implied, 
 one is not to have priority, an earlier record of one will not 
 give it priority over the other." But if one of the mortgages 
 is for the purchase-money, it will have priority over one for 
 some other debt, although they are simultaneously recorded. 15 
 If both are for purchase money they will be concurrent 
 liens. 16 A mortgage will have the characteristics of a pur- 
 Rep. 94G. See also, Singer Mfg. Co. v. Shull, 74 Mo. App. 486; 
 Hard v. Harlan, 143 Mo. 469, 45 S. W. Rep. 274. 
 
 "Alvis r. Morrison, 61 111. 181, 14 Am. Rep. 354; Steele t?. Boone, 
 75 111. 457; Alston v. Alston, 4 S. C. 116; Gloss v. Kelly, 212 111. 
 314, 72 N. E. Rep. 378. 
 
 "Gillig f. Mass, 28 N. Y. 191; Rhoades v. Canfield, 8 Paige Ch. 
 545; -Freeman v. Shroeder, 43 Barb. 618; Conover V. Van Mater, 18 
 N. J. L. 481; Sparks V. State Bank, 7 Blackf. 469; Iowa College 
 Trustees r. Fenno, 67 Iowa, 244; Raleigh Bank v. Moore, 94 N. C. 
 734; Dinsmore v. Matthews, 58 Mich. 616; Brower V. Witmeyer, 121 
 Ind. 83; Foxwell v. Slaughter, 5 Del. Ch. 396. 
 
 "Stafford r. Van Rensselaer, 9 Cow. 316; Green v. Tomlinson, 23 N. 
 J. Eq. 405. 
 
 "Daggett r. Rankin, 31 Cal. 327; Howard v. Case, 104 Mass. 249. 
 
 "Clark v. Brown, 3 Allen, 509; Turk v. Funk, 68 Mo. 18; 30 Am. 
 Rep. 771; Brower V. Witmeyer, 121 Ind. 83; Boies V. Gardner, 53 Hun, 
 236. 
 
 i Jones r. Phelps, 2 Barb. Ch. 440; Pomeroy v. Layting, 15 Gray, 
 435. 
 
 375
 
 260 RIGHTS OP MORTGAGOR AND MORTGAGEE. [ PART I. 
 
 chase money mortgage even though it be executed subse- 
 quently, provided it is done in performance of a contempo- 
 raneous agreement for such a mortgage. 17 So, also, will a 
 purchase money mortgage have priority over a prior judg- 
 ment lieu. 18 Whether a mortgage unrecorded will be post- 
 poned to the lien of a judgment docketed subsequently has 
 been decided differently in different States. In some of the 
 States the judgment is invariably given priority, 19 while in 
 others the unrecorded mortgage will take precedence, unless 
 the mortgaged property has been levied upon in execution of 
 the judgment and sold to a purchaser for value. 20 If there 
 is any doubt as to the priority of the judgment in such a 
 case, the true rule would seem to require the question to 
 depend upon the priority in execution of the debts, repre- 
 sented respectively by the mortgage and the judgment. If 
 the judgment debt was incurred subsequently to the execu- 
 tion of the mortgage, the judgment when, docketed should 
 have priority over the unrecorded mortgage, for the judg- 
 ment-creditor, in entering into the contract which caused the 
 
 IT Stewart r. Smith, 36 Minn. 82; see ante, Sec. 94. 
 
 is Stewart v. Smith, 36 Minn. 82 ; Jacoby v. Crowe, 36 Minn. 93. 
 
 iSemple r. Bird, 7 Serg. & R. 290; Friedley v. Hamilton, 17 Serg. 
 & R. 70; Davidson v. Cowan, 1 Dev. Eq. 470; Van Thorniley v. Peters, 
 26 Ohio St. 471; Barker v. Bell, 37 Ala. 354; Moore v. Watson, 1 Root, 
 388; Hawkins v. Files, 51 Ark. 417. But if the judgment-creditor has 
 notice of the prior unrecorded mortgage, the mortgage will of course 
 take precedence to the judgment. Wertz's Appeal, 65 Pa. St. 306; 
 Britton's Appeal, 45 Pa. St. 172; Williams v. Tatnall, 29 111. 553. See, 
 also, Edwards v. Mo. Kan., etc., Ry. Co., 82 Mo. App. 96; Griffin f. 
 Idem, 81 Mo. App. 93. 
 
 20 Finch v. Winchelsea, 1 P. Wms. 278; Burn v. Burn, 3 Yes. 582; 
 Schmidt v. Hoyt, 1 Edw. Ch. 652; Jackson r. Dubois, 4 Johns. 216; 
 Knell r. Green St. Building Assn., 34 Md. 67 ; Hackett r. Callender, 32 
 Vt. 97; Hampton v. Levy, 1 McCord Ch. 107 (but see Miles v. King, 
 5 S. C. 146) ; Righter r. Forester, 1 Bush, 278; Morton v. Robards, 4 
 Dana, 258; Orth v. Jennings, 8 Blackf. 420; Kelley v. Mills, 41 Miss. 
 267; First Nat. Bank v. Hayzlett, 40 Iowa, 659; Iowa Loan & T. Co. 
 v. Mowery, 67 Iowa, 113; Laidley v. Aikin (Iowa), 45 N. W. Rep. 384; 
 Flayler v. Malloy, 9 N. Y. S. 573; Devin V. Eagleson (Iowa), 44 N. W. 
 Rep. 545. 
 
 37G
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 261 
 
 debt, may have relied upon the apparently unincumbered con- 
 dition of the debtor's property. 
 
 261. Registry of assignments of mortgages and equities 
 of redemption. Since the registration of a deed is construc- 
 tive notice only to subsequent purchasers and incurabrancers, 
 the recording of an assignment of the mortgage, although 
 a protection against other assignees and purchasers from the 
 mortgagee, is no notice to the mortgagor and his assigns, 
 either before or after the execution of the mortgage, which 
 has been the subject of assignment; in other words, to senior 
 mortgagees as well as to purchasers of the equity of redemp- 
 tion. 21 In order not to be bound by the acts of the mort- 
 gagee after the assignment, which have the effect of extin- 
 guishing the mortgage as, for example, acceptance of pay- 
 ment from the mortgagor actual notice of the assignment 
 must be brought to the mortgagor and subsequent purchasers 
 of his equity of redemption. 22 But the absence of the in- 
 strument of indebtedness which has been secured by the 
 mortgage from the possession of the mortgagee, is sufficient 
 notice to all parties of the equitable assignment of the mort- 
 gage. 23 So, also, must actual notice be given to the mort- 
 gagee of the assignment of the mortgagor's estate, in order 
 that the rights of the assignee may be fully protected against 
 the unlawful acts of the mortgagor. 2 * 
 
 21 Holliger v. Bates, 43 Ohio St. 437. 
 
 22 Jones v. Gibbons, 9 Ves. 410; Mitchell v. Burnham, 44 Me. 302; 
 James v. Johnson, 6 Johns. Ch. 417; Walcott V. Sullivan, 1 Edw. Ch. 
 399; Ely r. Schofield, 35 Barb. 330; Belden v. Meeker, 47 N. Y. 307; 
 Titus f. Haynes, 9 N. Y. S. 742; Castle v. Castle (Mich.), 44 N. W. 
 Rep. 378. In some of the States, notably California, Indiana, Kansas, 
 Michigan, Minnesota, Nebraska, New York, Oregon, Wisconsin and 
 Maryland, the same rule is established by statute. Jones on Mort., Sec. 
 473; 2 Washburn on Real Prop. 148. See Watson v. Dundee Mortgage, 
 etc., Co., 12 Or. 47, and see post, Sec. 579. 
 
 28 Rice v. McFarland, 34 Mo. App. 404; Kellogg v. Smith, 26 N. Y. 
 18, 23. 
 
 2*4 Kent's Com. 174; Stuyvesant v. Hall, 2 Barb. Ch. 158; Bell v. 
 
 377
 
 262 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 262. Tacking of mortgages. In England, if there are 
 three or more mortgages upon the same property, and the 
 first and third, or other subsequent mortgages, are held by 
 the same person with the intervening second mortgage out- 
 standing in another, by obtaining possession under the first 
 mortgage, the mortgagee may hold the mortgaged premises 
 against the second mortgagee, until the third or other sub- 
 sequent mortgage in his possession has been satisfied. This 
 doctrine is called "the tacking of mortgages," and is based 
 upon the theory that, since one mortgagee has.no notice of 
 the other mortgages, the equities of successive junior mort- 
 gagees are equal; and the first mortgagee, having the full 
 legal title in possession, may use his possession for the benefit 
 of whatever liens he may have upon the premises to the ex- 
 clusion of other subsequent mortgagees, who would otherwise 
 have taken subject only to the first mortgage. 25 But in this 
 country the general prevalence of recording laws has taken 
 from the doctrine its practical value, since the record is con- 
 structive notice to all subsequent incumbrancers. and such 
 notice destroys the equality of the equities said to exist be- 
 tween junior mortgagees. It may be said that the doctrine 
 does not prevail at all in the United States. 26 But the same 
 
 Fleming, 12 N. J. Eq. 16; Groesbeck V. Mattison, 43 Minn. 547; Clark 
 v. McNeal, 114 N. Y. 287; First Nat. Bank v. Honeyman (Dak.), 42 
 N. W. Rep. 771. See post, Sec. 579. 
 
 25 Young v. Young, L. R. 3 Eq. 805 ; Marsh v. Lee, 2 Vent. 337 ; s. c. 
 
 I Ch. Gas. 162; Brace v. Marlborough, 2 P. Wms. 491. 
 
 -6 Grant v. Bissett, 1 Caine's Gas. 112; McKinstry v. Merwin, 3 
 Johns. Ch. 466; Burnett V. Denniston, 5 Johns. Ch. 35; Loring v. 
 Cooke, 3 Pick. 48; Green V. Tanner, 8 Mete. 411; Anderson v. Neff, 
 
 II Serg. & R. 208; Thomas' App., 30 Pa. St. 378; Brigden v. Carhart, 
 1 Hopk. Ch. 231; Averill v. Guthrie, 8 Dana, 82; Wing v. McDowell, 
 Walk. (Mich.) 175. But it has been held in a number of the courts 
 that, as between mortgagor and mortgagee, the mortgagee may hold 
 the mortgage and refuse a satisfaction, until all subsequent advances 
 made by the mortgagee shall have been paid. Orvis v. Newell, 17 
 Conn. 97; Chase v. McDonald, 7 Har. & J. 160; Lea V. Stone, 5 Gill 
 & J. 611; Joslyn v. Wyman, 5 Allen, 62; Stone V. Lane, 10 Allen, 74; 
 Siter v. McClanachan, 2 Gratt. 280; Colquhoun v. Atkinson, 6 Munf. 
 
 378
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 2G3 
 
 principle is now applied to the right of the mortgagee in 
 possession to apply the rents and profits to the liquidation 
 of any one of the mortgages which he may hold, and the 
 intervening mortgagee has no right to object to the applica- 
 tion of them to a third or other subsequent mortgage. 27 
 
 263. Priority in mortgages for future advances. Where 
 the first recorded mortgage is to secure future advances, it 
 becomes a question of importance to what extent will such 
 a mortgage have priority over a subsequently recorded mort- 
 gage; and, although there was at one time a considerable 
 diversity of opinion, the general rule now prevailing seems 
 to be the following: If the mortgagee has entered into a 
 binding contract to furnish the advances under all circum- 
 stances, and his failure to do so would expose him to an ac- 
 tion on the covenant, even if such refusal or failure occurred 
 after the execution of the second mortgage, then his mort- 
 gage will take precedence to the second mortgage for the 
 amounts advanced both before and after the execution of the 
 latter. 28 But if the continuance of the advances be volun- 
 tary, and his refusal to make them after the second mortgage 
 
 550; Walling r. Aiken, 1 McMull. Eq. 1; Hughes V. Worley, 1 Bibb. 
 200; Downing r. Palmeteer, 1 B. Mon. 64; Coombs v. Jordan, 3 Bland. 
 284. The " tacking " of mortgages, being based upon the " legal es- 
 tate " in the mortgagee in possession, irrespective of the question of 
 notice, imparted by registration laws, the right could not exist in 
 States where the " lien theory " of mortgages obtains. 2 Tiffany, Real 
 Prop., Sec. 543, p. 1243; 4 Kent's Com. 178. 
 
 27 Leeds V. Gifford, 41 N. J. Eq. 404. 
 
 2Ladue v. Detroit, etc., R. R., 13 Mich. 380; Griffin v. Burnett, 4 
 Edw. Ch. 673; Boswell v. Goodwin, 31 Conn. 74; a. c. 12 Am. Law 
 Reg. 79, note; Rowan v. Sharpe, etc., Mfg. Co., 29 Conn. 329; Lyle v. 
 Duncomb, 5 Binn. 585; Hopkinson v. Rolt, H. L. Cas. 9514; Nelson v. 
 Iowa, etc., R. R., 8 Am.* R. R. Rep. 82. See also, Hamilton v. Rhodes 
 (Ark. 1904), 83 S. W. Rep. 351, a mortgage for future advances to 
 a " cropper." But as to requirement of definiteness in description of 
 debts for future advances secured, see, Powell v. Harrison, 85 N. Y. 8. 
 452, 88 App. Div. 228; Belcher Land & Mfg. Co. v. Norris (Texas 
 1903). 78 S. W. Rep. 390. 
 
 379
 
 263 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 would not constitute a breach of the covenant, the first mort- 
 gage will have priority only for such amounts as have been 
 advanced before the first mortgagee received notice of the 
 second mortgage. 29 It has also been a much discussed ques- 
 tion whether the registration of the second mortgage is such 
 constructive notice to the first mortgagee as to prevent him 
 from claiming priority for advances made after the recording, 
 and before the receipt of actual notice. In Ohio, Pennsyl- 
 vania and Michigan it is held that the recording of the second 
 mortgage is constructive notice to the first mortgagee (in a 
 mortgage for future advances), and Mr. Redfield, the late 
 chief justice of the Supreme Court of Vermont, has expressed 
 the opinion that such will finally be the prevailing rule in 
 this country. 30 But this view is certainly in conflict, not only 
 with the other English and American decisions on this par- 
 ticuLir question, but also with the general theory of the effect 
 of recording a deed. It has been explained that the registry 
 is notice only to those who subsequently acquire interests in 
 the same property, and unless strong grounds are shown for 
 making an exception in this case to the general rule, we must 
 hold, with the majority of the American and English courts, 
 that actual notice must be brought home to the first mort- 
 gagee, in order to give to the second mortgage priority over 
 the advances made afterwards under the first. 31 
 
 2Boswell V. Goodwin, 31 Conn. 74; Hopkinson r. Rolt, 9 H. L. Cas. 
 514; Robinson V. Williams, 22 N. Y. 380; Brinkerhoff v. Marvin, 5 
 Johns. Ch. 320; Bk. of Montgomery Co.'s Appeal, 36 Pa. St. 172; Cox 
 V. Hoxie, 115 Mass. 120; contra, Wilson r. Russell, 19 Md. 494; 
 Witczieski v. Everman, 51 Miss. 841, which hold that any mortgage 
 for future advances will be good against subsequent purchasers, as to 
 advances made after the second conveyance, whether the mortgagee is 
 bound to make them or not. 
 
 so Bk. of Montgomery Co.'s Appeal, 36 Pa. St. 170; Parmentier V. 
 Gillespie, 9 Pa. St. 86, 12 Am. Law Reg. 92, Judge Redfield's note to 
 Boswell f. Goodwin; 8. c. 31 Conn. 74; Ladue v. Detroit, etc., R. R., 
 13 Mich. 380. 
 
 3iMcDaniels v. Colvin, 16 Vt. 300; Craig r. Toppin, 2 Sandf. Ch. 
 78; Ward v. Cooke, 17 N. J. Eq. 93; Robinson r. Williams, 22 N. Y. 
 380
 
 CH. XI.] RIGHTS OF MORTGAGOR AND MORTGAGEE. 264 
 
 264. Satisfaction of the mortgage on the records. In 
 every State, provision is made for the entry on the records of 
 satisfaction of the mortgage and deed of trust, either by an 
 original acknowledgment on the margin of the records of the 
 mortgage, or by the registration of an independent certificate 
 or acknowledgment of satisfaction, which has been signed 
 by the mortgagee or present holder of the mortgage debt, 
 in compliance with the provisions of the statute. The stat- 
 utory provisions are almost as various as there are independ- 
 ent statutes relating to the subject, and it would be mani- 
 festly impossible in this connection to give an account of 
 these divergent provisions. 32 Whatever provisions there may 
 be in a particular State they must be complied with, in or- 
 der that the discharge of the mortgage may prove effective. 
 Suffice it to say that when the satisfaction has been properly 
 entered on the records by one who has the right to receive 
 payment, it operates to discharge the mortgage completely as 
 to subsequent purchasers, who take the title of the land with- 
 out notice of any defect in the apparently valid discharge of 
 the mortgage. But if it- has been improperly entered upon 
 the record, or the entry has been made by one who is not the 
 holder of the note or bond which is secured by the mortgage 
 or the agent of such holder, and who therefore cannot dis- 
 charge the mortgage, the entry is a nullity, and does not 
 affect the title to the mortgage, even as to subsequent pur- 
 chasers. 33 The signature of the acknowledgment of satisfac- 
 tion must of course be genuine. If it be forged, it will have 
 
 380; Rowan r. Sharpe's Rifle Co., 29 Conn. 329; Nelson v. Boyce, 7 
 J. J. Marsh. 401; Jones on Mort., See. 372. 
 
 32 In many States a penalty is provided, by statute, for a failure 
 to enter satisfaction, on the records, by a mortgagee. Ala. Code, 1806, 
 Sec. 1066; Partridge r. Wilson, 37 So. Rep. 441; Rev. St. Mo. 1899, 
 Sec. 4367; Civ. Code Mont., Sec. 3845; Henderson v. Wilson, 36 So. 
 Rep. 516. 
 
 ssCornog v. Fuller, 30 Iowa, 212; Ayers i: Hayes, 60 Ind. 452; Viele 
 r. Judson, 15 Hun, 328; Begein r. Brehm (Ind.), 23 N. E. Rep. 496; 
 Lee v. Clark, 80 Mo. .V>:5 ; O'Neill . Douthitt, 40 Kan. 689. But 
 contra, Lewis r. Kirk, 28 Kan. 497; Fisher v. Cowles, 41 Kan. 418. 
 
 .'J81
 
 264 RIGHTS OP MORTGAGOR AND MORTGAGEE. [PART I. 
 
 no effect upon the mortgage, not even against subsequent 
 purchasers without notice. 34 But, except as against subse- 
 quent purchasers without notice and for value, an entry of 
 satisfaction, through accident, mistake, or fraud, and to the 
 detriment of one who has a right to enforce the mortgage 
 against the mortgagor, may be vacated and the mortgage be 
 revived. 35 The mortgagor or owner of the land can always 
 compel the holder of the mortgage to make this formal satis- 
 faction, and in many of the States recover of him a penalty 
 for failing to do so. 36 And in many of the States the courts 
 will order a discharge from the records of a mortgage which 
 has been barred by the statute of limitations. 37 If a satis- 
 faction has been made subject to the performance of a con- 
 dition by the mortgagor, upon the breach of the con- 
 dition, the satisfaction will be set aside on application to a 
 court. 38 
 
 3* Chandler v. White, 84 111. 435; Meley V. Collins, 41 Cal. 663. See 
 Costello V. Meade, 55 How. Pr. 356. 
 
 35 Hale V. Morgan, 68 111. 244; Steiger v. Bent, 111 111. 328; Fergu- 
 r.on v. Glassford, 68 Mich. 36; Wilton v. Mayberry, 75 Wise. 191; Beal 
 V. Congdon, 75 Mich. 77. In California, where a mortgage was satisfied 
 through a mistake, it was held not necessary to secure a cancellation, 
 before foreclosure. White v. Stevenson, 144 Cal. 104, 77 Pac. Rep. 
 828. 
 
 36 Remington Paper Co. r. O'Dougherty, 81 N. Y. 474; Radcliffe v. 
 Rowley, 2 Barb. Ch. 23; Tuthill i: Morris, 81 N. Y. 94; Sweet V. Ward, 
 43 Kan. 695; Campbell V. Seeley, 38 Mo. App. 298; Dodson v. Clark, 
 38 Mo. App. 150; Steiner v. Ellis (Ala.), 7 So. Rep. 803; Ashbey v. 
 Ashbey, 41 La. An. 138; Murdock v. Cox, 118 Ind. 266; Woolsey v. 
 Bohn, 41 Mich. 235; Hall v. Hurd, 40 Kan. 740; Partridge v. Wilson 
 (Ala. 1904), 37 So. Rep. 441. 
 
 STKingman v. Sinclair (Mich.), 45 N. W. Rep. 187. 
 
 ss Smith v. Smith, 8 N. Y. S. 637. But equity will not interfere to 
 compell a cancellation or satisfaction of a mortgage, unless the evi- 
 dence of payment and discharge is clear. Dinner v. Van Dyke, 25 Pa. 
 Super. St. 433. The remedy of heirs of a deceased mortgagee, in Penn- 
 sylvania, to set aside a satisfaction procured by fraud during the life- 
 time of the mortgagee, is by bill in the Orphans Court. Gilkeson V. 
 Thompson, 210 Pa. 355, 59 Atl. Rep. 1114. 
 382
 
 SECTION III. 
 
 REMEDIES AND REMEDIAL RIGHTS INCIDENT TO MORTGAGES. 
 
 SECTION 265. Actions for waste. 
 
 266. Process to redeem. 
 
 267. Accounting by the mortgagee. 
 
 268. Continued What are lawful debits? 
 
 269. Continued What are lawful credits? 
 
 270. Making rests. 
 
 271. Balance due. 
 
 272. Foreclosure Nature and kinds of. 
 
 273. Continued Who should be made parties? 
 
 274. Parties to Foreclosures Continued. 
 
 275. Effect of decree in foreclosure upon the land. 
 
 276. The effects of foreclosure upon the debt. 
 
 277. Mortgages, with power of sale. 
 
 278. Character of the mortgage in relation to the power. 
 
 279. Purchase by mortgagee at his own sale. 
 
 280. Extinguishment of the power. 
 
 281. Application of purchase-money. 
 
 282. Deeds of trust. 
 
 283. Contribution to redeem General statement. 
 
 284. Mortgagor V. his assignees. 
 
 285. Contribution between assignees of the mortgagor Effect 
 
 of release of one of them. 
 
 286. Contribution between the surety and the mortgagor. 
 
 287. Between heirs, widows, and devisees of the mortgagor. 
 
 288. Between the mortgaged property and the mortgagor's per- 
 
 sonal estate. 
 
 289. Special agreements affecting the rights of contribution and 
 
 exoneration. 
 
 290. Marshaling of assets between successive mortgagees. 
 
 265. Actions for waste. If the party in possession 
 whether mortgagor or mortgagee, or their respective assignees 
 does anything in respect to the mortgaged property which 
 constitutes waste, and as such essentially impairs the value 
 of the inheritance, he will be responsible in damage to the 
 
 383
 
 265 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 other parties who are interested in the property. But a 
 mortgagor is not guilty of waste, on account of acts of omis- 
 sion. In the absence of an express covenant to repair, he 
 is notguilty of waste, as against the mortgagee, if he fails 
 to keep the premises in repair. 30 The action is not the tech- 
 nical legal action, but is one in the nature of waste, and in 
 the code pleading would be simply an action for damages. 40 
 But the most effective remedy for the prevention of waste 
 by the parties to a mortgage is a bill in equity for an injunc- 
 tion, or the appointment of a receiver to take charge of the 
 mortgaged property. Any one who has an interest, either 
 in the mortgaged premises or in the jmortgage debt, may avail 
 himself of these remedies. 41 
 
 3 Union Mut., etc., Ins. Co. v. Union Mills, etc., 37 Fed. Rep. 286. 
 
 >Stowell v. Pike, 2 Greenl. 387; Hagar r. Brainard. 44 Vt. 302; 
 Sanders v. Reed, 12 N. H. 558; Burnside V. Twitchell, 43 N. H. 390; 
 Mayo V. Fletcher, 14 Pick. 525; Wilmarth f. Bancroft, 10 Allen 348; 
 Page v, Robinson, 10 Cush. 99; Mitchell v. Bogan, 11 Rich. Eq. 386; 
 Lane V. Hitchcock, 14 Johns. 205 ; Haskin v. Woodward, 45 Pa. St. 44 ; 
 Van Pett V. McGraw, 4 Comst. 110; Gardner r. Heatt, 3 Denio 232; 
 Barnett v. Nelson, 54 Iowa 41, 37 Am. Rep. 183; Moriarty t. Ashworth, 
 43 Minn. 1. And after condition broken, in the common-law States, 
 the mortgagee may have trover or replevin for the timber cut by the 
 mortgagor, against the purchaser of the mortgagor, as well as against 
 the mortgagor himself. Langdon V. Paul, 22 Vt. 205 ; Frothingham v. 
 McKusick, 24 Me. 403; Kennerly v. Burgess, 38 Mo. 440; Kimball v. 
 Lewiston, etc., Co., 55 Me. 494; contra, Peterson v. Clark, 14 Johns. 
 205; Wilson v. Malthy, 59 N. Y. 126. 
 
 Brady v. Waldron, 2 Johns. 148; Johnson r. White, 11 Barb. 194; 
 Cooper v. Davis, 15 Conn. 556; Salmon V. Claggett. 3 Bland Ch. 126; 
 Capner v. Farmington Co., 2 Green Ch. 467; Brick r. Getsinger, 1 Halst. 
 Ch. 391; Ensign v. Colburn, 11 Paige, 503; Scott r. Wharton, 2 Hen. 
 & M. 25; Gray v. Baldwin, 8 Blackf. 164; McCaslin f. The State, 44 
 Ind. 151; Morrison v. Buckner, Hempst. 442; Fairbank r. Cudworth, 33 
 Wis. 358; Robinson r. Russell, 24 Cal. 467; Hampton r. Hodges, 8 Ves. 
 105; Robinson r. Litton, 3 Atk. 210; Goodman r. Kline, 8 Beav. 379. 
 But the mortgagee is under no obligation to enjoin, or bring action for 
 rv-s*". and a subsequent incumbrancer or purchaser cannot hold him 
 liable for failing thus to protect the inheritance, and reduce the debt. 
 Knarr v. Conaway, 42 Ind. 260. For discussion .of the relative right> 
 cf mortgagee and mortgagor of mining property, to mine the mortgagee! 
 384
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 266 
 
 266. Process to redeem. In those States where the pay- 
 ment or tender of payment after condition broken extin- 
 guishes the mortgage, and enables the mortgagor to recover 
 the possession by an action of ejectment, no further process is 
 needed to restore him to the complete title in the land. But 
 where payment or tender of payment, i. e., after breach of 
 the condition, does not have that effect as is the case under 
 the common law theory the mortgagor is obliged to resort 
 to a bill in equity to enforce a redemption and cancellation 
 of the mortgage. This equitable remedy may be instituted 
 by the mortgagor or any one claiming under him. The bill 
 must be accompanied with a tender of payment into the court 
 or with the statement of a willingness to pay if a balance is 
 found to be due after an accounting, 42 and the decree orders 
 the mortgagee to cancel and deliver up the mortgage and the 
 instrument of indebtedness. 43 The action for redemption 
 must be instituted within the period of limitation prescribed 
 for such actions. 44 Where there are several parties before 
 
 premises and when mining constitutes waste, see White, Mines & Min. 
 Rein., Sees. 273-282, and cases cited. For list of late cases on injunc- 
 tion against mortgagee to prevent waste, see, 2 Am. & Eng. Dec. in Eq., 
 p. 673. 
 
 2 Pryor V. Hollinger, 88 Ala. 405; Franklin V. Ayer, 22 Fla. 654; 
 Genhordt v. Tucker, 187 Mo. 46, 85 S. W. Rep. 552. But see, Marvin 
 v. Prentice. 49 How. Proc. 385. 
 
 *3 Beekman v. Frost, 18 Johns. 544; Silsbee V. Smith, 41 How. Pr. 
 418; Barton v. May, 3 Sandf. Ch. 450; Perry v. Carr, 41 N. H. 371; 
 Daughdrill v. Sweeney, 41 Ala. 310; Pitman V. Thornton, 66 Me. 469; 
 Gerrish r. Black, 122 Mass. 76; Halt V. Rees, 46 111. 181; Brobst V. 
 Brock, 10 Wall. 536; Manning v. Elliott, 92 N. C. 48; Washburn V. 
 Hammond (Mass.), 24 N. E. Rep. 33; Hazard v. Robinson, 15 R. I. 
 226; Payer v. Hallinger, 88 Ala. 405. In Pennsylvania redemption 
 may be asked for in an action of ejectment. Mellon f. Lemmon, 111 
 Pa. St. 56; Franklin V. Ayer, 22 Fla. 654. But see contra, Casserly 
 v. Witherbee, 119 N. Y. 522. 
 
 *< See ante, Sec. 247. See also, Schlawig v. Fleckenstein (Iowa), 45 
 N. W. Rep. 770. A tenant for years, whose lease is subsequent to the 
 mortgage (Kebabian r. Shinkle, 26 R. I. 505, 59 Atl. Rep. 743); a 
 dowress (McKenna v. Trust Co., 90 N. Y. S. 493, 98 App. Div. 480) 
 attaching creditors (Whitney r. Metallic Mfg. Co., 187 Mass. 537, 73 
 
 25 385
 
 266 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 the court claiming the right to redeem, the court will grant 
 the right of redemption to them in the order of their priority, 
 the one who is last in point of priority being required to re- 
 deem all the preceding mortgages, in order that he may ac- 
 quire the first lien or absolute title. 45 All persons who are 
 interested in the mortgage, either as privies of the mortgagor 
 or mortgagee, are proper parties to an action for redemption. 
 The mortgagee and his assigns are necessary parties. And 
 where there are several parcels of land covered by the mort- 
 gage, and the owner of the equity of one wishes to redeem, 
 the owners of the other parcels must be made parties. But 
 this rule does not apply where there are separate mortgages 
 over each for the same debt. 46 
 
 N. E. Rep. 663) ; subsequent Henholders (Dickinson v. Duckworth 
 (Ark. 1905), 85 S. W. Rep. 82), and anyone having a substantial in- 
 terest in the property (Mercer v. McPherson Kan. 1905, 79 Pac. Rep. 
 118) can generally redeem. But a willingness and ability to pay the 
 debt, must be alleged and proved. Gerhardt v. Tucker, 187 Mo. 46, 85 
 S. W. Rep. 552. But see, Marvin v. Prentice, 59 How. Prac. 385. 
 
 45 Moore r. Beasum, 44 N. H. 215; Brewer v. Hyndman, 18 N. H. 9; 
 Arcedechare v. Bowes, 3 Meriv. 216; Buchanan v. Reid, 43 Minn. 172; 
 Parke ?. Hush, 29 Minn. 434. See ante, Sec. 255, for a discussion of 
 the persons who may redeem. 
 
 46 1 Dan. Ch. Pr. 306, 307; Winslow V. Clark, 47 N. Y. 261; Dias v. 
 Merle, 4 Paige 259; Hilton v. Lathrop, 46 Me. 297; Brown t. Johnson, 
 53 Me. 246; Wigg v. Davis, 8 Greenl. 31; Elliott v. Patton, 4 Yerg. 10; 
 Wolcott V. Sullivan, 6 Paige Ch. 117; Shaw v. Hoadley, 8 Blackf. 165; 
 Beals v. Cobb, 51 Me. 348; Doody f. Pierce, 9 Allen 141; Boyd v. Allen, 
 15 Lea 81; Perkins V. Brierfield & Co., 77 Ala. 403. Upon the death of 
 the mortgagor, either his heir or the personal representatives may 
 bring the suit, because both are interested in the liquidation of the 
 mortgage. Enos v. Southerland, 11 Mich. 538; Guthrie v. Sorrell, 6 
 Ired. Eq. 13; Gen. Stat. Mass. (1860), Sees. 32, 33. And at common 
 law, upon the death of the mortgagee, both the heirs and personal rep- 
 resentatives had to be made parties. Anon. 2 Freem. 52 ; Osbourn v. 
 Fallows, 1 Russ. & M. 741; Story's Eq. PI., Sec. 188; Ha-skins r. Homes, 
 108 Mass. 379. But under the lien theory of mortgages, the personal 
 representatives of the mortgagee are the only necessary parties. Cope- 
 land V. Yoakum, 38 Mo. 349. And where a junior mortgagee redeems, 
 he must make the mortgagor, as well as the prior mortgagee, parties 
 
 386
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 268 
 
 267. Accounting by the mortgagee. In the action for 
 redemption, in order to determine the amount then due on 
 the mortgage it is sometimes necessary to have an accounting. 
 An accounting may be ordered whenever the mortgage debt 
 involves a long and tedious account of charges and counter- 
 charges, but it is particularly necessary when the mortgagee 
 has been in possession of the premises, has received the rents 
 and profits of the land, and expended sums of money in keep- 
 ing the premises in repair. The mortgagor, or other person, 
 praying for redemption, asks for an accounting by the mort- 
 gagee. An accounting is an equitable remedy which may be 
 instituted independently of, or in conjunction with, another 
 and the principal suit. The mortgagor and his assigns may 
 ask for an accounting without filing a bill to redeem, or they 
 may request it in connection with the action for redemption. 
 The case is referred to a master in chancery, if there be one, 
 or to a special referee, who ascertains and determines the 
 prcpr debits and credits of the account between the parties, 
 and reports to the court the balance found due. 47 The ap- 
 proval by a court of competent jurisdiction of the mort- 
 gagee's account fixes his liability thereon definitely, and the 
 account cannot thereafter be attacked collaterally. 48 
 
 268. Continued What are lawful debits? In the first 
 place the mortgagee will be charged with whatever rents he 
 
 defendant. Farmer v. Curtis, 2 Sim. 466; Caddick v. Cook, 32 Beav. 
 70; Rhodes V. Buckland, 16 Beav. 212; Palk t". Clinton, 12 Ves. 48. 
 
 <7 Hunt f. Maynard, 6 Pick. 439; Gibson . Crehore, 5 Pick. 146; 
 Bailley v. Myrick, 52 Me. 136; Doody v. Pierce, 9 Allen 141; Harper's 
 Appeal, 64 Pa. St. 315; 5 Wait's Prac. 288; Adams v. Brown, 7 Gush. 
 220; Hubbell r. Moulson, 53 N. Y. 225; Farris v. Houston, 78 Ala. 250; 
 Pryor v. Hollinger, 88 Ala. 405; Shuler v. Bonander (Mich.), 45 N. W. 
 Rep. 487. The mortgagee's assigns, as well as the mortgagee, are liable 
 to be called to account, and the mortgagor's assigns have a right to de- 
 mand an account. Brayton v. Jones, 5 Wis. 117; Harrison v. Wise, 24 
 Conn. 1; Strang r. Allen, 44 111. 428; Ruckman v. Astor, 9 Paige Ch. 
 517; Gelston r. Thompson, 29 Md. 595. 
 
 *s/n re Helfenstein's Estate (Pa.), 20 Atl. Rep. 151. 
 
 387
 
 260 REMEDIES INCIDENT TO MORTGAGES. [PART L 
 
 may have received, or which he could have received but for 
 his negligence in the management of the estate. This mat- 
 ter has been already discussed in a previous section, and a 
 complete statement of the mortgagee's liability in this con- 
 nection need not here be repeated. 49 The mortgagee is also 
 chargeable with all damage done to the inheritance by him- 
 self, or by others with his authority or permission, whether 
 the acts constitute affirmative or negative waste. Thus he 
 is liable for damages resulting from the opening and working 
 of a mine, as well as from letting the premises fall into 
 decay. 50 
 
 269. Continued What are lawful credits ? Since the 
 mortgagee in possession is under an obligation to keep the 
 premises in repair, he is entitled to credit himself with all 
 sums expended for that purpose. But he will not be allowed 
 the expenses incurred in making costly improvements such 
 as the erection of new buildings, or for any repairs which 
 are not of permanent benefit to the inheritance. The true 
 rule seems to be, that he will be allowed only such expenses 
 as he incurred in making repairs, which were necessary to 
 keep the premises in the same condition as he received them, 
 and for such improvements beyond that limit which were 
 necessary to the ordinary and reasonable enjoyment of the 
 premises. For any other expenses of repair he can be cred- 
 ited only when he has incurred them by and with the con- 
 sent of the mortgagor. 51 But it has been held in some of 
 
 <9 See ante, Sec. 246. For accounting from mortgagee in possession, 
 for net proceeds of mineral taken from the mortgaged premises, see, 
 White, Mines & Min. Rem., Sec. 275, and cases cited. 
 
 BO See ante, Sec. 265; White, Mines & Min. Rem., Sec. 273 et sub. 
 
 "Russell v. Blake, 2 Pick. 505; Reed v. Reed, 10 Pick. 398; Crafts 
 V. Crafts, 13 Gray 303; Moore V. Cable, 1 Johns. Ch. 385; Gordon f. 
 Lewis, 2 Sumn. 143; Norton V. Cooper, 39 Eng. Law & Eq. 130; Spar- 
 hawk i?. Wills, 5 Gray, 423; Daugherty v. McColgan, 6 Gill & J. 275; 
 Harper's Appeal, 64 Pa. St. 315; Lowndes v. Chisolm, 2 McCord Ch. 
 455; Hopkinson v. Stephenson, 1 J. J. Marsh. 341; McCumber v. Gil- 
 man, 15 111. 381; Tharpe v. Feltz, 6 B. Mon. 15; Hidden v. Jordan, 28 
 388
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 269 
 
 the States that where lasting and permanent improvements 
 of a truly beneficial character were made by the mortgagee 
 in possession, or by a purchaser, under the mistaken belief 
 that he had, by foreclosure, acquired the absolute title, he will 
 be allowed the value of them. 52 This, probably, is but 
 deduction from the general betterment laws, which have been 
 enacted in several of the States. 53 Although the mortgagee is 
 not obliged to purchase a superior or paramount title held 
 by a third person, or to pay the taxes due upon the estate, or 
 to effect an insurance where the mortgage requires the mort- 
 gagor to insure, yet if he does any of these acts and incurs 
 expenses for the protection of their joint interests against 
 such forfeiture or loss, he will be permitted to charge them 
 against the mortgagor. 54 But in all of these cases the claim 
 for reimbursement is against the mortgaged property, and 
 not a personal one which may be enforced against the mort- 
 gagor in a personal action. 55 The mortgagee, however, can- 
 
 Cal. 301; Neale r. Hagthorp, 3 Bland Ch. 590; Ballinger v. Choultan, 
 20 Mo. 80; Ford r. Philpot, 5 Har. & J. 312; Miller v. Curry (Ind.), 
 24 N. E. Hep. 211), 374. A mortgagee in possession cannot charge for 
 repairs, not necessary to save the estate from loss or injury. Barnard 
 r. Peterson (Mich. 1904), 100 N. W. Rep. 893; Wilmarth f. Johnson 
 (\\is. 1905), 102 X. W. Rep. 562. 
 
 -.Miner v. Beekman, 50 N. Y. 337; Putnam r. Ritchie, 6 Paige Ch. 
 390; Vanderhaise r. Hughes, 2 Beas. 410; Harper's Appeal, 04 Pa. St> 
 315; Neale v. Hagthorp, 3 Bland 590; Gillis v. Martin, 2 Dev. Eq. 470;. 
 Troost V. Davis, 31 Ind. 34; Roberts v. Fleming, 53 111. 1!>8; McLorley 
 v. Larissa, 100 Mass. 270; Bacon v. Cottrell, 13 Minn. 194. 
 
 ss See post, Sec. 500. 
 
 o* Clark v. Smith, 1 N. J. Eq. 421; Muller r. Whittier, 30 Me. 577; 
 Hubbard v. Shaw, 12 Allen 122; Williams v. Hilton, 35 Me. 547; Slee 
 V. Manhattan Co., 1 Paige Ch. 81; Folny r. Palmer, 5 Gray, 049; Davis 
 r. Bean, 114 Mass. 360; Harper r. Ely, 70 111. 581; Rownn r. Sharpe 
 Rifle Co.. 29 Conn. 282; Burr r. Veeder, 3 Wend. 412; Miller r. Curry 
 (Ind.). '24 X. E. Rep. 219. 374; Young r. Oruohundro, 09 Md. 424; 
 West r. Hayes. 117 Ind. 290; McCreery r. Shaffer (Xeb.). 41 N. W. 
 Kcp. !t!ii. A irortnjree i* not liable for taxes. Hood r. Clark (Ala. 
 1904). 37 So. Rrp. 550; McLaughlin V. Acom, 58 Kan. 514, 50 Pac. 
 IN-,,. 441. 
 
 " Kersenbrook r. Muff (Xeb.), 45 N. W. Rep. 778; Zabriskie '. Ban 
 li-H (X. J.), 20 Atl. Rep. 263.
 
 270 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 not charge for his personal services in the management of 
 the estate; but if it is necessary to employ others as, for 
 example, a person to collect the rents he will be allowed 
 such expenses. And, in some of the States, notably Massa- 
 chusetts, he is allowed a commission where he collects them 
 himself. But the general rule is that he will not be permitted 
 to make any charge for his own services, whatever may be 
 their nature. 58 
 
 270. Making rests. In applying the rents and profits 
 received from the estate the mortgagee may first deduct there- 
 from the expenses incurred in the management of the mort- 
 gaged premises, and then he must apply the remainder to 
 the liquidation of the interest and principal of the debt in 
 that order. If, in making the account, it is ascertained that 
 in any one period determined by the time when the interest 
 falls due the rents and profits received are more than suffi- 
 cient to cover the expenses and the accrued interest, the bal- 
 ance is applied to the principal ; and the interest subsequently 
 accruing is computed on the reduced principal. This is called 
 making a rest. And rests will be made under such circum- 
 stances as often as the interest falls due. 57 
 
 5 And any agreement that he shall be permitted to charge for such 
 services will not be binding upon the mortgagor. French v. Barren, 2 
 Atk. 120; Gilbert v. Dyneley, 3 Man. & G. 12; Eaton v. Simonds, 14 
 Pick. 98; Moore V. Cable, 1 Johns. Ch. 385; Elmer v. Loper, 25 N. J. 
 Eq. 475; Breckenridge v. Brooks, 2 A. K. Marsh 335; Benham v. Howe, 
 
 2 Cal. 387 ; Harper v. Ely, 70 111. 381 ; Snow v. Warwick Institution of 
 Savings (R. I.), 20 Atl. Rep. 94. In Massachusetts, Connecticut, Penn- 
 sylvania and Virginia, the mortgagee may charge a reasonable percent- 
 age, usually 5 per cent., for the collection of the rents. Gerish v. Black, 
 104 Mass. 400; Waterman v. Curtis, 26 Conn. 241; Wilson v. Wilson, 
 
 3 Binn. 557; Granberry v. Granberry, 1 Wash. (Va.), 246; Brown V. 
 South Boston Sav. Bk., 148 Mass. 300. 
 
 IT Reed v. Reed, 10 Pick. 398; Shaffer v. Chambers, 6 N. J. Eq. 548; 
 Van Vronker v. Eastman, 7 Mete. 538; Connecticut v. Jackson, 1 Johns. 
 Ch. 13; Stone v. Seymour, 15 Wend. 16; Jencks v. Alexander, 11 Paige 
 Ch. 619; Gordon v. Lewis, 2 Sumn. 147; Patch r. Wilde, 30 Beav. 100; 
 Gladding v. Warner, 36 Vt. 54; Knight v. Houghtaling, 91 N. C. 246. 
 390
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 272 
 
 271. Balance due. If, when the account is stated, it is 
 found that there is a balance still due on the mortgage to the 
 mortgagee, a decree for redemption will be granted upon the 
 payment of that sum. And the report of the referee or mas- 
 ter, when confirmed by the court, is conclusive as to the 
 amount still owing. On the other hand, if the report shows 
 that the rents and profits received by the mortgagee exceed 
 the expenses and the amount of the mortgage combined, re- 
 demption will be decreed, together with an order, directing 
 the mortgagee to pay over to the mortgagor whatever balance 
 is found due to him. 58 
 
 272. Foreclosure Nature and kinds of. In order to 
 bar the mortgagor's equity of redemption,, and acquire the 
 absolute title to the property, or to satisfy his debt by a sale 
 of the premises, the mortgagee must bring an action for fore- 
 closure. And the action lies on a deed which is absolute on 
 its face, as soon as it is shown that it was intended to operate 
 as a mortgage, as well as on one which has been executed 
 in proper form. 59 The decree in such a case bars completely 
 the right to redeem. There are two principal kinds of fore- 
 closure, although the details in both are different in different 
 States, and are governed more or less by local statutes. The 
 more ancient kind is what is called strict foreclosure. This 
 is an action in which a decree is rendered barring the mort- 
 gagor's equity, and vesting the absolute estate in the mort- 
 gagee, if the debt is not paid within a certain time after the 
 rendition of the decree. This kind of foreclosure is generally 
 resorted to in the New England States, although in some of 
 
 as Pitman v. Thornton, 66 Me. 469; Holt v. Rees, 46 111. 181; Gerrish 
 v. Black, 122 Mass. 76; Seaver v. Durant, 39 Vt. 103; Bell v. Mayor of 
 N. Y., 10 Paige Ch. 49; Freytag v. Hoeland, 23 N. J. Eq. 36; Wood 
 v. Felton, 9 Pick. 171. 
 
 * Lyon v. Powell, 78 Ala. 351. When it is shown that a deed, abso- 
 lute in form, is a mortgage, the grantee, until foreclosure of the equity 
 of redemption, cannot maintain ejectment. Faulkner v. Cody, 91 N. Y. 
 S. 633. 
 
 391
 
 272 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 them particularly Massachusetts the form of the proceed- 
 ing has been somewhat changed from the old common-law 
 foreclosure. But the decree is essentially the same.' 10 By 
 strict foreclosure, if the mortgagee is out of possession, he 
 may recover the possession in an action of ejectment. 01 The 
 other so-called equitable foreclosure is effected by a decree 
 ordering the property to be sold, and the proceeds of sale 
 applied to the payment of the expense of the foreclosure suit 
 and sale of the property, 62 and the liquidation of the mort- 
 gage-debt. If any surplus remains, it is paid over to the 
 mortgagor and his assigns, 63 and the junior incumbrancers 
 will be entitled to share in the surplus in the order of their 
 equities. 04 This mode of foreclosure is juster and fairer to 
 
 00 In Massachusetts, Maine and New Hampshire, the action for strict 
 foreclosure is called a writ of entry, in form, an action at law, but in 
 effect, an equitable proceeding. Gen. Stat. Mass., Ch. 140, Sees. 1-11; 
 Me. Rev. Stat., Ch. 90; Gen. Stat. N. H., Chs. 112, 213; Bartlett v. 
 Sanborn, 64 N. H. 70; Snow v. Piessey, 82 Me. 552. But in addition 
 to this action, a strict foreclosure may be effected in the New England 
 States, by entry into possession after condition broken, with a formal 
 notice to the mortgagor, attested by witnesses, that the entry is for 
 the purpose of foreclosure. Generally this notice is also required to be 
 published in the newspapers, and a certificate of the entry recorded in 
 the general recording office. And after the lapse of a certain time, 
 fixed by the statute, usually three years, the equity of redemption is 
 foreclosed without any resort to the courts. 2 Jones on Mort., Sees. 
 1237-1275. 
 
 61 Kershaw r. Thompson, 4 Johns. Ch. 609; Schenck f. Conover, 13 N. 
 J. L. 220; Sutton v. Stone, 2 Atk. 101. But the decree in strict fore- 
 closure may include an order to the mortgagor to vacate the premises, 
 and then it will not be necessary for the mortgagee to resort to his 
 legal remedies. Kendall v. Treadwell, 5 Abb. Pr. 76; Buswell r. Peter- 
 son, 41 Wis. 82. 
 
 2 Castle r. Castle (Mich.), 44 N. W. Rep. 378; Snow v. Warwick 
 Institution for Savings (R. L), 20 Atl. Rep. 94; Barry v. Guild, 25 111. 
 App. 39; Moran v. Gardemeyer, 82 Cal. 96; Tefford V. Garnell (111.), 
 24 N. E. Rep. 573; Casler v. Byers, 28 111. App. 128; s. c. 129 111. 657; 
 Balfour f. Davis, 14 Ore. 47; Schallard v. Eel River, etc., Co., 70 Cal. 
 144. 
 
 ' Mitchell v. Weaver, 118 Ind. 55. 
 
 8< Armstrong v. Warrington, 111 111. 430. A decree of foreclosure 
 392
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 272 
 
 all parties, and, very probably, everywhere in this country, 
 except the New England States, foreclosure is always made 
 by a sale of the premises, even though the right to a strict 
 foreclosure may still exist. 65 Courts of equity will exercise 
 their ordinary power of discretion, and will order a sale of 
 the premises whenever a strict foreclosure would be mani- 
 festly to the detriment of the mortgagor. 60 A bill for fore- 
 closure may be filled at any time after the breach of the 
 condition, provided the action has not been barred by the 
 Statute of Limitations, the same time being given for actions 
 of foreclosure, as for actions of ejectment. 67 The condition 
 
 should provide for the disposition of the surplus, after payment of the 
 mortgage debt. Griffin v. Smith, 82 S. W. Rep. 684. But it is not 
 error to fail to do so. Brier v. Brinkman, 44 Kan. 570, 24 Pac. Rep. 
 1108. 
 
 8 5 Strict foreclosures are regarded with disfavor by the courts, in 
 all cases where a decree of foreclosure and sale can be equitably ren- 
 dered. South Omaha Bank v. Levy, 95 N. W. Rep. 603; State ex rel 
 Wyandotte Lodge v. Evans, 176 Mo. 310, 75 S. W. Rep. 914. 
 
 In most of the States there are statutes authorizing foreclosure by 
 Sale of the premises, but they are only confirmatory of the power which 
 a court of equity always possessed. Lansing v. Goelet, 9 Cow. 352 ; 
 Mills v. Dennis, 3 Johns. Ch. 367; William's Case, 3 Bland Ch. 193; 
 Hinds v. Allen, 34 Conn. 193; McCurdy's Appeal, 65 Pa. St. 290; Shaw 
 V. Norfolk Co. R. R., 5 Gray 162; Green v. Crockett, 2 Dev. & B. Eq. 
 393; Fox V. Wharton, 5 Del. Ch. 200. Strict foreclosure is recognized 
 now in Alabama, Florida, Illinois, Maryland, Minnesota and New York, 
 but it is only used in special cases, and is generally looked upon as a 
 severe remedy. Hitchcock v. U. S. Bank of Pa., 7 Ala. 386; R. S. 111. 
 (1877), pp. 120, 540; Dorsey v. Dorsey, 30 Md. 522; Wilder V- Haughey, 
 21 Minn. 101; Bolles v. Duff, 43 N. Y. 474; Greisbaum r. Baum, 18 111. 
 App. 614; Ellis v. Leek, 127 111. 60. In the other States it does not 
 seem to be at all applicable. O'Fallon v. Clopton, 89 Mo. 284. In all 
 the States the foreclosure of mortgages is regulated by statute and they 
 differ widely as to details. See 2 Jones on Mort., Sees. 1317-1368, 
 where the distinguishing features of the statutory remedies are fully 
 and accurately presented. 
 
 "Smith v. Woolfolk, 115 U. 8. 143; McLaughlin v. Cecconi, 141 
 Mass. 252; Palmer v. Snell, 111 111. 161. But see contra, dough v. 
 Rowe, 63 N. H. 562. Twenty years' delay will not prevent foreclosure 
 unless, by statute, limitation would apply to the mortgage. Bailey v. 
 
 393
 
 272 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 is broken when the debt falls due. In other words, suit for 
 foreclosure can be brought as soon as an action at law will 
 lie on the debt. 08 The mortgage may be made to fall due 
 upon the default in the payment of an installment of interest 
 or principal, and the mortgage may then be foreclosed for the 
 entire debt, although the time for payment has not yet ar- 
 rived, unless it is expressly provided that the default in pay- 
 ment of interest or installment of principal will not give the 
 right to foreclose. 09 But where it is not provided that the 
 entire debt shall fall due upon the default in interest or in 
 installments of principal, there may yet be given the right 
 of foreclosure for the purpose of enforcing payment of the 
 interest or installment of principal which is due, by the sale 
 of so much property as is necessary, and a subsequent sale 
 cf the remaining property when the rest of the debt falls 
 clue. 70 The mortgage may also provide that the default in 
 
 Butler (Ala. 1903), 35 So. Rep. 111. But see, in Missouri, R. S. 1899, 
 Sec. 4276. 
 
 03 Gladwyn v. Hitchman, 2 Vern. 134; Harding v. Mill River Co., 34 
 Conn. 458; Giles V. Baremore, 5 Johns. Ch. 545; Hughes v. Edwards, 9 
 Wheat. 489; Blethen V. Dwindal, 35 Me. 556; Tripe v. Marcy, 39 N. H. 
 439; Gillett v. Balcom, 6 Barb. 370; Williams v. Townsend, 31 N. Y. 
 411; Fetrow v. Merriwether, 53 111. 275; Pope v. Durant, 26 Iowa 233; 
 Brown v. Miller, 63 Mich. 413; Ohio Cent. R. R. Co. v. Central Trust 
 Co., 133 U. S. 83; Leonard v. Binford, 122 Ind. 200, 23 N. E. Rep. 704; 
 Orr v. Rode (Mo.), 13 S. W. Rep. 1066; Curtis v. Cutler, 37 L. R. A. 
 737; Central Trust Co. V. N. Y. & N. R. Co., 33 Hun 513; L. I. L. & T. 
 Co. v. L. I. & N. R. Co., 82 N. Y. S. 644, 85 App. Div. 36. 
 
 69 Stanhope v. Manners, 2 Eden 197 ; Richards V. Holmes, 18 How. 
 143; Seaton v. Twyford, L. R. 11 Eq. 591; Burrowes v. Malloy, 2 Jones 
 & Lat. 521; Sire v. Wightman, 25 N. J.'Eq. 102; Terry v. Eureka Col- 
 lege, 70 111. 236; Harshaw v. McKesson, 66 N. C. 266; Magruden V, 
 Eggleston, 41 Miss. 284; Schooley v. Romain, 31 Md. 574; Hosie v. 
 Gray, 71 Pa. St. 198; A.lams v. Essex, 1 Bibb. 149; Goodman v. Cin. 
 & C. C. R. R., 2 Disney 176. See Poweshiek Co. v. Dennison, 36 Iowa 
 352, 19 Am. Rep. 521; Hoodless v. Reid, 112 111. 105; Scheibe v. Ken- 
 ne-ly. 64 Wis. 564. 
 
 o Bank of Ogdensberg v. Arnold, 5 Paige 38 ; Caufman r. Sayre, 2 
 B. Mon. 202; Magruder v. Eggleston, 41 Miss. 284; Poweshiek Co. v. 
 Dennison, 36 Iowa 254; Johnson v. Buckhaults, 77 Ala. 276; Cleveland 
 394
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 273 
 
 payment of the interest or installment of principal, may 
 cause the entire debt to fall due, "at the election of the mort- 
 gagee." 71 In such a case the mortgagee is not obliged to 
 make his election immediately after the default. 7 - And like 
 the action on the debt, it is not dependent upon any pre- 
 vious demand of payment or notice of intention to bring the 
 action. 73 The time for foreclosure may be postponed by an 
 agreement for forbearance, if the agreement is supported by 
 a valuable consideration. The foreclosure can under these 
 circumstances only be brought at the close of the time for for- 
 bearance. 74 
 
 273. Continued Who should be made parties? Gener- 
 ally all persons should be made parties to a suit for fore- 
 closure who are interested in the mortgage or mortgaged 
 property. The holder of the equity of redemption, subse- 
 quent purchasers, and junior mortgagees, must always be 
 made parties, including any one in possession, whatever may 
 be his title. 75 But a vendee, under an executory contract of 
 
 v. Booth, 43 Minn. 16; Fox r. Whaston, 5 Del. Ch. 200; Bacon r. N. 
 W., etc., Inc. Co., 131 U. S. 258; Anderson v. Pilgram, 30 S. C. 499; 
 Kempner r. Comer, 73 Tex. 196; Bank of Napa v. Godfrey, 77 Cal. 612. 
 
 Randolph v. Middleton, 26 N. J. Eq. 543 ; Harper f. Ely, 56 111. 
 179; Princeton, etc., Co., v. -Munson, 60 111. 371; Bosse f. Gallagher, 7 
 Wis. 442. 
 
 72 Wheeler & Wilson, etc., Co., V. Howard, 28 Fed. Rep. 741. Filing 
 suit in foreclosure is generally held sufficient evidence of the mort- 
 gagee's election to regard the debt due, on default in any interest pay- 
 ment, where this is the condition of the mortgage. Holdroff v. Renlee, 
 105 111. App. 671. 
 
 73 Manning v. Elliott, 92 N. C. 48; Maxwell r. Newton, 65 Wis. 261. 
 
 74 Chiles r. Wallace, 83 Mo. 84. 
 
 7sR U yter r. Reid (N. Y.), 24 N. E. Rep. 791; Finley v. U. S. Bank, 
 11 Wheat. 304; Caldwell v. Taggart, 4 Pet. 190; McCall v. Yard, 9 N. 
 J. Eq. 358; Goodrich r. Staples, 2 Cush. 258; Webster r. Vandeventer, 
 6 Gray 428; Williamson V. Field, 2 Sandf. Ch. 533; Vanderkamp f. 
 Shelton, 11 Paige Ch. 28; Winslow r. Claik, 47 N. Y. 261; Haines r. 
 Beach, 3 Johns. Ch. 459; Bates r. Miller. 48 Mo. 409; Colter r. Jones, 
 52 111. 84; Lyon r. Powell, 98 Ala. 351; Bobbles r. Munnerlyn, 83 Ga. 
 727; Johnston r. McDufiVe, 83 Cal. 30; Ostrander r. Hart, 8 X. Y. 8. 
 
 395
 
 273 . REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 sale, is not a necessary party; he becomes a necessary party 
 only when he receives a deed of conveyance. 78 So, also, is 
 it unnecessary to make a contingent remainderman, who takes 
 subject to the mortgage, a party to the foreclosure suit. 77 
 The assignee of a junior incumbrance must be made a party 
 in the place of the original junior mortgagee, and a decree 
 of foreclosure against the latter would not have any effect 
 upon the right of redemption of the assignee, who has not 
 been made a party to the suit for foreclosure. 78 But one 
 who purchases the equity during the pendency of the suit 
 takes the mortgagor's interest subject to the decree, and 
 need not be made a party, unless this is required by statute, 
 as is the case in some of the States. 79 It has also been held 
 in some States that a prior mortgagee should be made a 
 party. Making a prior mortgagee a party is equivalent to in- 
 stituting an action for redemption. 80 But by the weight of 
 authority, prior mortgagees and grantees are not necessary, 
 
 809; Watts v. Julian, 122 Ind. 124; Armstrong v. Warrington, 111 111. 
 430; Mendenhall v. Hall, 134 U. S. 559; Richards t/. Thompson, 43 Kan. 
 209; but see Cooper V. Loughlin, 75 Tex. 524, where it is held that 
 beneficiaries of a trust property need not be joined, if the trustee is. . 
 To same effect see, Harlem Co-op. Bldg. & Loan Assn. v. Quinn, 10 N. 
 Y. S. 682; United States Trust Co. V. Roache, 116 N. Y. 120. See 
 Douthit v. Hipp, 23 S. C. 205. Holders of subsequent liens, or of 
 equity of redemption are necessary parties to suit to foreclose. Dick- 
 inson v. Duckworth (Ark. 1905), 85 S. W. Rep. 82. 
 7Stanbrough v. Daniels, 77 Iowa 561. 
 "Townshend r. Frommer, 125 N. Y. 446. 
 78 Bigelow r. Stringfellow, 25 Fla. 366. 
 
 TO Smith v. Davis (N. J.). 19 Atl. Rep. 541; Lloyd v. Passingham. 16 
 Ves. 66; Parkes t?. White, 11 Ves. 236; Watt v. Watt, 2 Barb. Ch. 371 ; 
 Jackson v. Losse, 4 Sandf. Ch. 387; Ostrom v. McCann, 21 Ho\v. Pr. 
 431; McPherson V. Honsel, 13 N. J. Eq. 299; Loomis f. Stuyvesant. 10 
 Paige Ch. 490; Crocker V. Crocker, 57 Me. 396; Haven v. Adams, 8 
 Allen 367; Poston v. Eubank, 3 J. J. Marsh. 43; Bennett V. Calhoun 
 A-sn.. 9 Rich. Eq. 163; Dickson V. Todd, 43 111. 507; Gordon r. Lee, 
 102 Ind. 125; Tierney f. Spiva, 97 Mo. 98; Wise V. Griffith, 78 Cal. 152. 
 *" Hudnit r. Nash, 16 N. J. Eq. 550; Finley v. U. S. Bk., 11 Wheat. 
 306; Stanish r. Dow. 21 Iowa 363; Shiveley V. Jones, 6 Mon. 274; 
 in v. Branhan, 43 Mich. 283. 
 396
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 273 
 
 and hardly proper parties. 81 But it may be stated that 
 wherever the mortgage is to be foreclosed by a sale of the 
 premises, the prior mortgagee may be joined in the suit, 
 though he is not a necessary party ; it is also advisable to do 
 so, since without him the property can only be sold subject 
 to his outstanding mortgage. 82 Although in some of the 
 States the wife of the holder of the equity is not held to be a 
 necessary party, it is best always to make her one, and in the 
 cases cited below it has been held to be necessary.- 3 Whether 
 judgment-creditors should be made parties has been differ- 
 ently decided in different States. 84 Where the mortgagor 
 
 si Jerome r. Carter, 94 U. S. 734; Kay v. Whittaker, 44 X. Y. 505. 
 But see Morris v. Wheeler, 45 N. Y. 708; Tome v. Loan Co., 34 Md. 12; 
 I'.njM'y r. Sliute, 4 Jones Eq. 174; Crawford t;. Munford, 29 111. App. 
 445; Hague f. Jackson, 71 Tex. 7G1. The owner of a senior mortgage 
 need not be joined, in a suit to foreclose by a junior mortgagee, in 
 Texas. Garza r. Howell, 85 S. W. Rep. 4G1. 
 
 82 Holccmb v. Holcomb, 2 Barb. 20; Vanderkemp r. Shelton, 11 Page 
 Ch. 28; Howard V. Handy, 35 N. H. 315; Wood v. Oakley, 11 Paige Ch. 
 400; Ducker v. Belt, 34 Md. Ch. 13; Hagan r. Walker, 14 How. 37; 
 Chaplin r. Foster, 7 B. Mon. 104; Clark v. Prentice, 3 Dana 468; Troth 
 v. Hunt, 8 Blackf. 580; Rucks v. Taylor, 49 Miss. 552; Minis f. Minis, 
 1 Humph. 425; Rowan f. Mercer, 10 Humph. 359; Hague v. Jackson, 71 
 Tex. 761. 
 
 83 That is necessary when her. dower right is subject to the mortgage. 
 Mills r. Van Voorhies, 28 Barb. 125; s. c. 20 N. Y. 412; Merchants' Bk. 
 r. Thomson, 55 N. Y. 7; Mooney r. Maas, 22 Iowa 380; Byrne v. Tay- 
 lor. 40 Miss. 95; Foster v. Hickox, 38 Wis. 408; Tadlock f. Eccles, 20 
 Tcx:i< 783; Anthony v. Nye, 30 Cal. 401. But see Eslana v. Le Petre, 
 21 Ala. 504; Fletcher v. Holmes, 32 Ind. 497; Amphlett V. Hibbard, 29 
 Mich. 298; Etheridge v. Vernoy, 71 N. C. 184; Kursheedt V. Union 
 Dime Sav. Inst., 118 N. Y. 358; Barr V. Van Alstine, 120 Ind. 590. 
 But where she has not joined in the execution of the mortgage, she 
 cannot be made a party, so as to bar her dower right, unless there is 
 some special defense to her claim. Brackett v. Baum, 50 N. Y. 8; Bell 
 v. Mayor of N. Y., 10 Paige Ch. 49; Merchants' Bk. r. Thomson, 55 
 N. Y. 7 ; Baker v. Scott, 62 111. 86 ; Heth v. Cocke, 1 Rand. 344 ; Foster 
 V. Hickox, 38 Wis. 408; Sheldon v. Patterson, 55 111. 507. Where the 
 mortgage was executed by a husband and wife, the wife is a necessary 
 party to the foreclosure suit. Franklin v. Beegle, 92 N. Y. S. 449, 102 
 App. Div. 412; Sloane r. Lucas (Wash. 1905), 79 Pac. Rep. 949. 
 
 s* That they must be, in order to extinguish their equity of redemp- 
 
 397
 
 273 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 has parted with his entire interest in the premises he is not 
 a necessary party, but he may be joined, and must be, if 
 the mortgagee wishes to obtain a personal judgment against 
 him in the same suit for the balance of the debt left unsatis- 
 fied by a sale of the mortgaged property. 85 If, however, the 
 assignment has not been recorded, and the mortgagee does 
 not know of the assignment of the equity of redemption, it 
 is not necessary to make the assignee a party. His interest 
 is barred by foreclosure. 86 But the mortgagor's surety or 
 guarantor is not a proper party to an action for foreclosure. 
 A personal judgment against him can only be obtained in 
 a suit at law. 87 Where the mortgagor is dead, his heirs and 
 his widow must be made parties, and his personal representa- 
 tives need be, only when a judgment against the mortgagor's 
 estate for the balance is desired, except in Missouri, where 
 they are by statute required to be parties in every case. 88 
 
 tion, see Adams v. Taynter, 1 Coll. 530; Sharpe v. Scarborough, 4 Ves. 
 538; Gaines i\ Walker, 1C Ind. 361. So also, a subsequently attaching 
 creditor. Lyon r. Sanford, 5 Conn. 544; Bullard v. Leach, 27 Vt. 491. 
 But in the following cases, judgment-creditors are held not to be neces- 
 sary parties. Downer v. Fox, 20 Vt. 388; Felder v. Murphy, 2 Rich. 
 Eq. 58; Mims v. Mims, 1 Humph. 425; Van Dyne V. Shaun, 41 N. J. 
 L. 311. 
 
 85Lockwood v. Benedict, 3 Edw. Ch. 472; Drury v. Clark, 16 How. 
 Pr. 424; Heyer V. Pruyn, 7 Paige Ch. 465; Andrews v. Steele, 22. N. J. 
 Eq. 478; Wilkins V. Wilkins, 4 Port. 245; Shaw v. Hoadley, 8 Blackf. 
 165; Heyman v. Lowell, 23 Cal. 106; Dickerman v. Lust, 66 Iowa 444. 
 But see Bigelow V. Bush, 6 Paige Ch. 343; Buchanan v. Munroe, 22 
 Texas 557. Nor are purchasers of the equity of redemption necessary 
 or proper parties after they have assigned it. Soule v. Albee, 31 Vt. 
 142; Lockwood v. Benedict, 3 Edw. Ch. 472; Hall v. Yoell, 45 Cal. 584. 
 
 ss Dickerman V. Lust, 56 Iowa 444. 
 
 87 Walsh v. Vanhorn, 22 111. App. 170. 
 
 88 Farmer v. Curtis, 2 Sim. 466; Bradshaw v. Outram, 13 Ves. 234; 
 Wood v. Moorhouse, 1 Lans. 405; Graham v. Carter, 2 Hen. & M. 6; 
 Worthington V. Lee, 2 Bland Eq. 678; Mayo v. Tomkins, 6 Munf. 52; 
 Boyce v. Bowers, 11 Rich Eq. 41; Averett v. Ward, Busb. Eq. 192; 
 Mclver v. Cherry, 8 Humph. 713; Bissell v. Marine Co., 55 111. 165; 
 Shively . Jones, 6 B. Mon. 274; Byrne v. Taylor, 46 Miss. 95; Slaugh- 
 ter v. Foust, 4 Blackf. 379; Hogden V. Heidman, 60 Iowa 645; Richards 
 
 398
 
 CII. XI.] REMEDIES INCIDENT TO MORTGAGES. 274 
 
 274. Parties to foreclosure Continued. All persons 
 such as joint mortgagees, assignees, etc., whether their interest 
 be legal or equitable who are interested in the mortgage 
 or mortgage-debt, should join in the suit as parties plaintiff. 
 But if any should refuse they must be made defendants." 1 ' 
 One not interested in the mortgage which is to be foreclosed 
 cannot be a party plaintiff. A junior judgment-creditor can- 
 not compel the foreclosure of the senior mortgage. His only 
 remedy is the redemption of the mortgage. 90 Where the 
 mortgagee has assigned the mortgage and debt absolutely, the 
 assignee is the proper party to bring the suit, and the mort- 
 gagee need not join ; but he is a necessary party, if the as- 
 signment is only conditional. 91 But if the mortgagee has 
 only assigned one of two or more debts, secured by the same 
 mortgage, he can institute the action, making the assignee 
 a party defendant, if he refuses to join as party plaintiff. 92 
 
 r. Thompson, 43 Kan. 209; Weir v. Field (Miss.), 7 So. Rep. 355. But 
 in Georgia and Missouri the personal representatives are necessary par- 
 ties. Dixon r. Cuyler, 77 Ga. 248; Magruder V. Offut, Dudley 227; 
 Perkins v. Woods, 27 Mo. 547; Hall V. Klepzig, 99 Mo. 83. The holder 
 of a known unrecorded deed, is not a necessary party, to a suit to 
 foreclose, in California. Hager v. Astorg, 145 Cal. 548, 79 Pac. Rep. 68. 
 But see contra, Hodson V. Treat, 7 Wis. 263. 
 
 so Carpenter v. O'Dougherty, 58 N. Y. 681; Noyes v. Sawyer, 3 Vt. 
 100; Stucker v. Stucker, 3 J. J. Marsh. 301; Shirkey v. Hanna, 3 
 Blackf. 403; Goodall V. Mopley, 45 Ind. 355; Johnson v. Brown, 31 N. 
 H. 405; Jenkins v. Smith, 4 Mete. (Ky.) 380; Bell v. Shrock, 2 B. 
 Mon. 29; Hartwell v. Blocker, 6 Ala. 581; Graydon v. Church, 7 Mich. 
 51; Saunders P. Frost, 5 Pick. 259; Wiley v. Pierson, 23 Texas, 486; 
 Webster v. Vandeventer, 6 Gray 428; Hopkins V. Ward, 12 B. Mon. 185; 
 Beals v. Cobb, 51 Me. 349; Lambert V. Hyers, 22 111. App. 616. But in 
 Rankin v. Major, supra, and Thayer v. Campbell, supra, it was held 
 that the holder of one of two notes secured by the same mortgage may 
 sue alone. 
 
 o Kelly v. Longshore, 78 Ala. 203. 
 
 01 Whitney v. McKinney, 7 Johns. Ch. 144; Miller . Henderson, 10 
 N. J. Eq. 320; Newman V. Chapman, 2 Rand. 93; Kittle v. Van Dyck, 
 win, 9 Ves. 264; Gage . Stafford, 1 Ves. Sr. 544; Sowles' Trustee v. 
 Buck (Vt.), 20 All. Rep. 146; Smythe v. Brown, 25 S. C. 89; Haven v. 
 Lyons, 9 N. Y. S. 211; Stiger v. Bent, 111 111. 328. 
 
 2 Boone r. Clarke, 129 111. 466. 
 
 399
 
 274 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 But whether the assignee of the debt can bring: the suit in- 
 dependently of the mortgagee or legal holder of the mort- 
 gage, depends upon the construction given by the courts to 
 the effect of such an assignment. At common law the holder 
 of the legal title to the mortgage must institute the suit as 
 trustee for the assignee of the debt, while, under the lien 
 theory in those States, where the assignment of the debt is 
 held to work an equitable assignment of the mortgage, the 
 assignee may maintain the suit in equity without joining the 
 legal owner of the mortgage. In other States, where the 
 assignment of the debt is held to transfer the legal as well 
 as the equitable title to the mortgage, the assignee may main- 
 tain all suits, both in law and equity. 93 It is now the general 
 rule in this country, that upon the death of the mortgagee 
 the mortgage descends with the debt to the personal repre- 
 sentatives, and they must, consequently, be the plaintiffs in 
 a suit for foreclosure. 04 If the mortgage be given to two 
 jointly to secure a joint debt, the survivor is the proper 
 party plaintiff, and the deceased mortgagee's representatives 
 are not necessary parties. But if the. joint mortgage is given 
 for two separate debts, the rule is different; both the sur- 
 
 3 Austin v. Burbank, 2 Day 476; Stone v. Locke, 46 Me. 445; Moore 
 v. Ware, 38 Me. 496; Calhoun v. Tullass, 35 Ga. 119; Story Eq. PL, 
 Sees. 201-209; Martin v. McReynolds, 6 Mich. 70; see ante, Sees. 250, 
 251. And in the Code States it is expressly provided that all actions 
 should be prosecuted in the name of the real party in interest. Under 
 this provision, whether the assignee be considered a legal or only an 
 equitable owner of the mortgage, in either case he is the proper party 
 to institute the suit for foreclosure. 2 Jones on Mort., Sec. 1370. 
 
 4 Kinna V. Smith, 3 N. J. Eq. 14 ; Dewey V. Van Dusen. 4 Pick. 19 ; 
 Worthington v. Lee, 2 Bland 678 ; Ratliff v. Davis, 38 Miss. 107 ; Grat- 
 tan r. Wiggins, 23 Cal. 16; Comp. Laws Mich. (1871), 1393; Rev. Stat. 
 Wis. (1871), 1223; Rev. Stat. Ohio, Ch. 43, Sec. 66; Citizens' Bank v. 
 Dayton, 116 111. 257. Contra, Etheridge v. Verney, 71 N. C. 174; Mc- 
 Iver r. Cherry, 8 Humph. 713. But if the mortgagee's heir is in pos- 
 session he must be made a party. Osborne t>. Tunis, 25 N. J. L. 633; 
 Huggins v. Hall, 10 Ala. 283; Gilkerson v. Thompson, 210 Pa. 355, 59 
 Atl. Rep. 1114. 
 
 400
 
 C1I. XI. J REMEDIES INCIDENT TO MORTGAGES. 275 
 
 vivor and the representatives of the deceased must join in 
 the suit, and either may institute the proceedings." 5 
 
 275. Effect of decree in foreclosure upon the land. A 
 decree in foreclosure bars the interest in the land of the 
 mortgagor, and all claiming under him who have been made 
 parties to the suit. It will have no effect upon the interest 
 of any one who is not a party, and as to him the equity of 
 redemption continues to exist. 06 A mortgagee in possession 
 under a defective foreclosure is not in any sense a trespasser 
 but he holds the possession in the character of a mortgagee. 1 ' 7 
 And if the foreclosure is defective because one who had a 
 right to redeem had not been made a party, the only remedy 
 for such a person against the purchaser is an action for re- 
 demption. He cannot maintain an action for possession be- 
 fore redemption. 98 So, also, if a junior incumbrancer, non- 
 resident, has been made a party by service by publication, 
 without receiving actual knowledge of the pendency of the 
 suit, the court may in its discretion re-open the foreclosure 
 
 s Blade v. Sanborn, 8 Gray 184; Williams r. Hilton, 35 Me. r>-17; 
 Lannay r. Wilson, 30 Md. 536; Milroy r. Stockwell, 1 Cart. (Ind.) 35; 
 Minor r. Hill, 58 Ind. 176, 26 Am. Rep. 71. Contra, if the debt is sev- 
 eral or there are conflicting claims. Freeman r. Scofield, 10 X. J. Eq. 
 28; Vickers V. Cowell, 1 Beav. 529; Mitchell f. Buinham. 44 Me. 305; 
 Burnett v. Pratt, 22 Pick. 556. 
 
 " Packer V. Rochester, etc., R. R., 17 X. Y. 287; Kershaw r. Thomp- 
 son, 4 Johns. Ch. 609; DeHaven v. Landell, 31 Pa. St. 124; Hindo f. 
 Allen, 34 Conn. 193; Ritger v. Parker, 8 Cush. 149; Watts t. Julian, 
 122 Ind. 124; Steinhardt V. Cunningham, 55 Hun 375; France v. Arm- 
 buster (Neb.), 44 X. W. Rep. 481; Glide v. Dwyer, 83 Cal. 477; Barr 
 v. Van Alstine, 120 Ind. 590. A bill for foreclosure is not strictly a 
 proceeding in rem, but is for the enforcement of a contract obligation 
 against specific persons and to foreclose their equity of redemption and, 
 hence, the decree does not effect those not made parties to the action. 
 Lohmeyer t;. Durbin, 213 111. 498, 72 N. E. Rep. 1118. 
 
 07 Blair v. Rivard, 19 111. App. 477; Cook r. Cooper, 18 Ore. 142. 
 
 8 Evans r. Pike, 118 U. S. 241. For equitable relief by mortgagee 
 who had failed to make some of the deceased mortgagor's heirs parties 
 to suit to foreclose, see, Investment Co. r. Adams (Wash. 1905), "0 
 Pac. Hep. (iJ.'. 
 
 20 401
 
 275 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 to enable him to redeem." In equitable foreclosure by sale, 
 some of the statutes require that a certain time be given to 
 the mortgagor after the sale to redeem the estate, and a court 
 of equity, in the exercise of its discretion, may, in the ab- 
 sence of statute, provide for such a period of redemption 
 before sale. 1 In such a case, however, it is held that the mort- 
 gagor can redeem the land on paying, not the amount of the 
 mortgage debt, but the amount of the bid, for which the 
 property was sold under foreclosure. 2 And where there is a 
 time for redemption after the sale, the decree must not di- 
 rect a delivery of the deed until this period for redemption 
 has expired. But a certificate is generally given to the pur- 
 chaser. 3 Until delivery of the deed, the mortgagor is entitled 
 to the rents and profits of the land. And if a mortgagee is 
 permitted to enter into possession before the expiration of 
 the period of redemption, he takes possession in his character 
 as mortgagee. 4 But when the deed is delivered, it operates 
 mine pro tune from the date of the sale, and bars any in- 
 tervening attaching rights. And although the decree be er- 
 
 Russell r. Gunn, 40 Minn. 463. 
 
 1 Ferine r. Dunn, 4 Johns. Ch. 140; Durrett v. Whiting, 7 B. Mon. 
 547; Harkins v. Forsyth, 11 Leigh 294; Gaskell V. Viquesney, 122 Ind. 
 244; Nelms v. Kennon, 88 Ala. 329; Willard v. Finnegan, 42 Minn. 
 476; Buchanan V. Reid, 43 Minn. 172; Wood v. Holland (Ark.), 13 S. 
 W. Rep. 739; Emmons i: Sowden (Mich.), 43 N. W. Rep. 1100; John- 
 son v. Golder, 9 N. Y. S. 739. 
 
 2 Williamson v. Dickerson, 66 Iowa 105. In Alabama, California, 
 Oregon, Michigan, Minnesota, Wisconsin, Tennessee, Iowa and Illinois, 
 there are statutes regulating the right of redemption. 2 Washburn on 
 Real Prop. 261-269, note. 
 
 sBoester r. Byrne, 72 111. 466; Rhinehart V. Stevenson, 23 111. 524; 
 Walker V. Jarvis, 16 Wis. 28; Harlan v. Smith, 6 Cal. 173. The Illinois 
 act of 1872, Sec. 30, providing for a forfeiture of all rights of a mort- 
 gagee, who fails to procure a master's deed in foreclosure, within a 
 certain time after the expiration of the period for redemption, is held 
 to impair the obligation of the contract and to deny due process of law 
 to a mortgagee, whose mortgage antedated the act, in Bradley V. 
 Lightcap, 195 U. S. 1, 49 L. Ed. 65. 
 
 * Jones f. Rigby, 41 Minn. 530; Clason v. Corley, 5 Sandf. Ch. 447; 
 Whalin r. White, 25 N. Y. 464; Whitney V. Allen, 21 Cal. 233. 
 402
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 275 
 
 roneous for some irregularity, it cannot be attacked collater- 
 ally, and the title of a bona fide purchaser, in a sale during 
 the pendency of the suit, cannot thereby be avoided, not- 
 withstanding the decree has subsequently been reversed. r> In 
 strict foreclosure, the decree makes the estate absolute in the 
 mortgagee. His title, whatever it is held to be before fore- 
 closure, becomes afterwards a legal estate in lands and de- 
 scends to the heirs, instead of to the personal representa- 
 tives. 6 But, in some of the States, if the mortgagee dies be- 
 fore a suit for strict foreclosure has been instituted, and it 
 is brought by the personal representatives, the estate, for the 
 purpose of distribution, partakes of the character of per- 
 sonalty, and the title vests in those who became, by the death 
 of the mortgagee, entitled to the mortgage-debt. 7 The de- 
 cree in a foreclosure suit is binding upon infant holders of 
 the equity to the same extent as adults, except that if the 
 foreclosure is irregular on account of some defect in the pro- 
 ceeding, he may take advantage of such error within a rea- 
 sonable time after arriving at his majority. And this is the 
 rule, whether the foreclosure is in equity or at law; but for 
 the protection of his interests, it is generally required that 
 
 5 Graham r. Bleakie, 2 Daly 55; Homer v. Zimmerman, 45 111. 14; 
 Burford v. Rosenfeld, 37 Texas 42; Torroms v. Hicks. 32 Mich. 307; 
 Markel v. Evans, 47 Ind. 326; Miller v. Sharp, 49 Cal. 233; but see 
 Brimlernagle V. German Ref. Church, 1 Barb. Ch. 15. A failure to at- 
 tach the seal of the court to an order of sale cannot collaterally be 
 raised, to effect the sale in foreclosure. Hager r. Astorg, 145 Cal. ">48. 
 79 Pac. Rep. 68. The doctrine of bona fide purchasers, is held, in 
 Arkansas, not to apply to a purchaser at a mortgage foreclosure. 
 Cooper v. Ryan (Ark. 1904), 83 S. W. Rep. 328. Mortgagees and 
 beneficiaries in trust deeds are always regarded as bona fide purchasers. 
 Gilbert v. Lawrence (W. Va. 1904), 49 S. E. Rep. 155; Walker t\ 
 Walker (Iowa 1905), 102 N. W. Rep. 435. 
 
 c Brainard r. Cooper, 10 N. Y. 359; Goodman r. White, 20 Conn. 322 r 
 Bradley f. Chester Val. R. R.. 36 Pa. St. 150; Kendall r. Tread well, 14 
 How. Pr. 165; Farrell r. Parlier, 50 111. 274; Osborne v. Tunis, 25 N. J. 
 L. <;.%1 ; Swift r. Edson, 5 Conn. -531. 
 
 T Mass. Gen. Stat, Ch. 96, Sees. 10, 1 B, 14; Fifleld v. Sperry, 20 N. 
 H 338. 
 
 403
 
 275 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 the infant be represented in the suit by a guardian ad litem* 
 So also is the decree binding upon married women, if their 
 husbands are joined with them as parties to the suit. And 
 the failure of the husband to defend will not constitute a 
 ground for setting aside the decree ; at least, where the fore- 
 closure is by a sale of the premises. But the decree only 
 transfers whatever interest is claimed by or through the mort- 
 gagor. It vests that interest in the mortgagee or purchaser, 
 but cannot bar the interests held by persons who are not 
 privies to the mortgagor. The decree, therefore, does not 
 affect any paramount title which is held or claimed by such 
 persons, even though they have been made parties to the suit. 10 
 Nor does the decree determine the priorities of the junior 
 mortgagees and their relative claims to a share in the surplus 
 of the proceeds of sale. 11 Where, however, the foreclosed 
 
 8 If it be a strict foreclosure, the infant would be bound by the de- 
 cree, if he does not show some defect in the foreclosure proceeding 
 within a reasonable time after his arrival at majority. 2 Cruise Dig. 
 199; Mills v. Dennis, 3 Johns. Ch. 367. But the infant is bound by a 
 sale under the decree, if he has been properly made a party to the 
 action notwithstanding the irregularity. Mills v. Dennis, supra; 2 
 Washburn on Real Prop. 259. Irregularities in the appointment of a 
 guardian, ad litem, will not effect the title of a purchaser at fore- 
 closure sale, in New York. Bannister v. Demuth, 178 N. Y. 630, 71 N. 
 E. Rep. 1128. 
 
 Mallack v. Galton, 3 P. Wms. 352; Mooney v, Maas, 22 Iowa 380; 
 Mavrick r. Grier, 3 Nev. 52. But in the States where married women 
 hold their property independent of their husbands, it seems unnecessary 
 to make the husband a party. Somerset, etc., Assn. v. Camman, UN. 
 J. Eq. 382; Thornton v. Pigg, 24 Mo. 249. And the same rule now pre- 
 vails in Massachusetts for a different reason. Davis r. Wetherell, 13 
 Allen 62; Newhall v. Sav. Bk., 101 Mass. 430. 
 
 1 Concord, etc., Ins. Co. v. Woodbury, 45 Me. 447 : Eagle F. Ins. Co. 
 r. Lent, 6 Paige Ch. 635; Grattan v. Wiggins, 23 Cal. 32; Brundage 
 r. Missionary Society, 60 Barb. 205; Kinsley v. Scott, 58 Vt. 470; Weil 
 r. Uzzett, 92 N. C. 515; Bozarth v. Sanders, 113 111. 181; Ord v. Bart- 
 lett, 83 Cal. 428. A purchaser in foreclosure only takes such title as 
 the mortgagor had. Duncan v. Asphalt Co. (Ky. 1904), 83 S. W. Rep. 
 124. 
 
 Burchell v. Osborne, 119 N. Y. 486. The purchaser at foreclosure 
 404
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 276 
 
 mortgage covers only one undivided interest in a joint-estate, 
 the plaintiff may secure by the same judgment a partition of 
 the joint-estate. 12 This statement of the effect of the decree 
 in foreclosure is true in all technical suits for foreclosure ; 
 but where, as in Maine and Massachusetts, the suit for fore- 
 closure is in the nature of an action at law for the recovery 
 of possession, if the person in possession holds under a su- 
 perior title, it would be necessary, or at least proper, to assert 
 such title. But this is -really not an exception to the rule 
 above cited, since wherever the mortgagee may maintain the 
 action of ejectment the question of a paramount title might 
 be raised by the party in possession, if he is not the mort- 
 gagor. 13 
 
 276. The effect of foreclosure upon the debt. If the suit 
 be for strict foreclosure, all actions on the surplus of the 
 debt remaining unsatisfied are barred as long as the fore- 
 closure is upheld ; 14 but if the mortgagee in the case that 
 the value of the property is not sufficient to satisfy the entire 
 debt wishes to pursue his remedy for the unsatisfied bal- 
 ance, it will re-open the foreclosure, and the property will 
 or may be sold under judicial decree, in order to ascertain 
 its actual value, and the amount of the judgment to be en- 
 tered up against the debtor. 15 Where the decree directs a 
 sale of the premises, the proceeds of sale are applied to the 
 liquidation of the debt, and if they are not sufficient to pay 
 
 sale, under a first mortgage, cuts off a lease given by the mortgagor 
 subsequent thereto. Strong V. Smith (X. J. Ch. 1905), 60 Atl. Rep. 66. 
 
 izLyon f. Powell, 78 Ala. 351. 
 
 is Hunt v. Hunt, 17 Pick. 118; Johnson v. Phillips, 13 Gray, 198; 
 Churchill r. Loring, 19 Pick. 465; Wheelright V. Freeman, 12 Mete. 
 154; Whittier v. Dow, 14 Me. 298. 
 
 nGriesbaum v. Baum, 18 111. App. 614. 
 
 "Lovell v. Leland, 3 Vt. 581; Osborne v. Tunis, 25 N. J. L. 633; 
 Spencer V. Harford, 4 Wend. 381; Morgan v. Plumb, 9 Wend. 287; 
 Andrews v. Scotton, 2 Bland, 666; Edgerton V. Young, 43 111. 470; Por- 
 ter r. Pillsbury. 36 Me. 278; Patten r. Pearsen, 57 Me. 434; Leland 
 r. Loring, 10 Mete. 122; Lansing v. Goelet, 9 Cow. 346. 
 
 405
 
 276 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 V 
 
 the whole debt, the mortgagee has his remedies for the bal- 
 ance, which are the ordinary actions at law for the recovery 
 of a debt. It is usual, however, for the court of equity, in 
 rendering a decree in foreclosure for the sale of the mort- 
 gaged premises, to give judgment for the unpaid surplus 
 against the mortgagor and others who may be jointly liable 
 with him. 16 And the court may grant this judgment for the 
 unsatisfied surplus, although the complaint or bill in fore- 
 closure contains no such prayer. 17 The remedies of the mort- 
 gagee are twofold: first, against the property mortgaged, 
 and secondly, on the personal liability of the mortgagor. 
 These remedies are independent of each other, and although 
 there can be but one payment of the debt, the prosecution 
 of one of these remedies does not bar the right to pursue the 
 other, and they may be employed simultaneously in separate 
 proceedings. 18 But in some of the States notably New York 
 
 iDunkley r. Van Buren, 3 Johns. Ch. 330; Deare r. Carr, 3 X. J. 
 E<I. 513; Pierce r. Potter. 7 Watts, 475 ; Andrews r. Scotten, 2 Bland 
 666; Hale r. Rider, 5 Cush. 231; Jones v. Conde, 6 Johns. Ch. 77: 
 Payne r. Harrell, 40 Miss. 498; Stark tJ. Mercer, 3 How. (Miss.) 377; 
 Marston r. Marston, 45 Me. 412; Drayton r. Marshall, Rice Eq. S86; 
 Shepherd r. Pepper, 133 U. S. 626; Weir v. Field (Miss.), 7 So. Rep. 
 355; Hilton r. Otoe Co. Bank, 29 Fed. Rep. 202; Shields v. Riopelle, 63 
 Mich. 458; Ohio Central R. R. Co. r. Central Trust Co., 133 U. S. 83. 
 There are statutory provisions, for rendering a judgment for any unsat- 
 isfied balance in the foreclosure suit, in Arkansas, California, Indiana, 
 Michigan, Minnesota, New York, Missouri, Texas and Iowa. See 
 Washburn on Real Prop. 261-269, note; Estes v. Fry, 166 Mo. 70, 65 
 S. W. Rep. 746. 
 
 IT Watkins r. Vrooman, 51 Hun 175. 
 
 is Booth r. Booth, 2 Atk. 343; Hale r. Rider, 5 Cush. 231; Jones r. 
 Conde, 6 Johns. Ch. 77; BurneJl v. Martin, 2 Dougl. 417.- Atty.-Gen. 
 r. Winstanley, 5 Bligh. 130; Hughes v. Edwards, 9 Wheat. 487; McCall 
 c. Lenox, 9 Serg. & R. 302; Oilman v. HI. & Miss. TeL Co., 91 U. S. 
 603; Riblett r. Davis, 24 Ohio St. 114; Slaughter V. Foust, 4 Blackf. 
 379; Payne v. Hanel, 40 Miss. 498; Baum r. Tomkin, 110 Pa. St. 569; 
 Shepherd r. Pepper, 133 U. S. 626; Blinne t. Kromer, 14 Okla. 366, 79 
 Pac. Rep. 215; Ridgley v. Abbott Min. Co. (Cal. 1905), 79 Pac. Rep. 
 833; Daniels r. Mutual Ben. Ins. Co. (Neb. 1905), 102 N. W. Rep. 
 458; Stumpf r. Hallahan, 91 N. Y. S. 1062, 101 App. Div. 383; Twigg 
 r. James (Wash. 1905), 79 Pac. Rep. 959. 
 406
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 277 
 
 judgment will not be rendered in an action at law on the 
 debt, while a suit for foreclosure is pending, without leave 
 of the court in which such suit is filed. 19 This rule of prac- 
 tice, no doubt, rests upon the ground that the entry of judg- 
 ment in the proceeding at law would be useless, since in the 
 foreclosure suit, judgment will be given for any balance re- 
 maining unsatisfied. 
 
 277. Mortgages with power of sale. In order to avoid 
 the burdensome and expensive proceedings for foreclosure, 
 the idea was conceived of giving to the mortgagee the power 
 to sell the mortgaged premises upon the breach of the condi- 
 tion, and apply the proceeds of sale to the liquidation of the 
 mortgage-debt. It was at first doubted whether such a power 
 was valid, when granted either in the mortgage or in a sepa- 
 rate instrument. It was considered as a contemporaneous 
 agreement, which, in its exercise, curtailed the mortgagor's 
 right to redeem, and, therefore, was void. But the power 
 of sale is now generally held to be good, since it does not 
 abridge or take away the ordinary remedies for foreclosure, 
 and is not in theory a means of foreclosing the mortgagor's 
 equity of redemption. 20 It is a power coupled with an in- 
 
 Williamson 0. Champlin, 8 Paige Ch. 70; Suydam v. Bartle, 9 
 Paige Ch. 204; 3 Rev. St. N. Y. (1875) 198; Mutual L. Ins. Co. v. 
 Sn:ith, 54 N. Y. Super. Ct. 400; Schultz v. Meade, 8 N. Y. S. 663; U. 
 S. Life Ins. Co. v. Poillon, 7 N. Y. S. 834. In Michigan, Iowa and 
 Indiana the same statute rules prevail. Mich. Comp. Laws (1871), 
 1549; Code of IQWJ> (1873), Sec. 3220; 2 Ind. Rev. Stat. (1876), 259; 
 Shields V. Riopelle, 63 Mich. 458. In Minnesota no suit at law on the 
 debt may be instituted until the foreclosure suit is ended.. Johnson V. 
 Lewis, 13 Minn. 364. See also, to the same effect, Anderson v. Pilgam, 
 30 S. C. 499. The purchaser of the mortgaged land, at foreclosure sale, 
 is not bound to comply with his bid, where the description in the sale 
 notice is too indefinite to pass a good title. Jackson v. Binnicker, 106 
 Mo. App. 721, 80 S. W. Rep. 682. 
 
 -"Wilson r. Troup, 7 Johns. Ch. 25 : Smith r. Provin, 4 Allen 518; 
 Kinsley r. Ames, 2 Mete. 29; Calloway r. People's Bk., 54 Ga. 441; 
 Longworth v. Butler, 3 Gilm. 32; Wing r. Cooper, 37 Vt. 184; Mann 
 c. Best, 62 Mo. 491; Clark v. Condit, 18 N. J. Eq. 358; Hyman v. Dev- 
 
 407
 
 277 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 1 crest, and is, therefore, irrevocable by the mortgagor. It 
 operates as the appointment of a use, which under the Stat- 
 ute of Uses, becomes executed into a legal estate in the pur- 
 cluiscr, and has all the characteristics that are met with in 
 ordinary powers of appointment under that statute. 21 It is 
 not determined by the death of either party, as is the case 
 with common-law powers of attorney; 22 it descends to the 
 mortgagee's heirs at his death, 23 and passes to the assignee 
 
 eraux, 63 X. C. 624; Bradley v. Chester Valley R. R., 36 Pa. St. 141; 
 Mitchell v. Bogan. 11 Rich. L. 686; Crowning v. Cox, 1 Rand. 306; 
 Plum r. Studebaker, 89 Mo. 162. 
 
 21 Wilson r. Tronp, 2 Cow. 236. The difficulty of the courts at first, 
 in determining the validity of a sale under the power, is, nt> doubt, 
 traceable to a failure to apply to that case the doctrine of powers of 
 appointment under the Statute of Uses. The ordinary mortgage is, in 
 form and effect, a deed of. bargain and sale, and the grant of a power 
 of sale therein may be construed as the limitation of a use. See post, 
 Chapter XVI. on Powers. But in most of the States, where mortgages 
 with power of sale are in common use, they are expressly authorized 
 by statute, and there is no need of this construction in order to estab- 
 lish their validity. 
 
 22Ohnsburg v. Turner, 87 Mo. 127; Benneson v. Savage, 130 111. 352. 
 
 23 When it is stated in the text that the power of sale passes to the 
 heirs of the mortgagee, reference is only had to those States where the 
 mortgage itself descends to the heir. But in most of the States the 
 power of sale descends with the mortgage to the personal representa- 
 tives, and may be exercised by them, although the power is expressly 
 limited to the " heirs and assigns." Demarest V. Wynkoop, 3 Johns. 
 Ch. 125; Berry v. Skinner, 30 Md. 573; Harnickle v. Wells, 50 Ala. 198. 
 In Missouri and Illinois, and perhaps in other States, upon the death 
 of the mortgagee the sheriff may be directed to execute the power, or a 
 new trustee can be appointed upon 1 the application of any one interested 
 therein. Hifkman r. Dill, 32 Mo. App. 509. The power of sale vested 
 in a trustee in a trust deed is a power coupled with an interest, and 
 hence is not revoked by the death of the grantor. The power of sub- 
 stitution of a new trustee granted in a trust deed to the beneficiary is 
 a power coupled with an interest, and hence is not revoked by the 
 death of the grantor. So held in Frank v. Colonial & U. S. Mortg. Co. 
 Limited, 38 So. Rep. 340 (Miss. May 1, 1905), citing Jones on Mort- 
 gages (6 ed.), Sec. 1792, 97 Ga. 56, 25 S. E. Rep. 485. See also, Mark- 
 well v. Markwell, 157 Mo. 326, 57 S. W. Rep. 1078; Kelsay r. Bank, 
 166 Mo. 157, 65 S. W. Rep. 1007; Curtis V. Moore, 162 Mo. 442, 63 S. 
 W. Rep. 80. 
 408
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 278 
 
 of the mortgage, except where only a part of the mortgage- 
 debt is assigned. The power is indivisible, and, therefore, 
 in a partial assignment, remains in the mortgagee, who must 
 exercise it for the benefit of both parties. 2 * If the donee of 
 the power is a corporation, the power may be exercised by its 
 duly authorized agent.- 5 The power of the sale need not 
 be limited to the estate of the mortgagee. While the mort- 
 gage may only cover a life estate, the power might authorize 
 a sale of the fee. 20 And the power of sale would be valid 
 as a security, although no estate in the mortgaged property be 
 given to the creditor. The power of sale would in that case 
 be a naked power. 27 
 
 278. Character of the mortgagee in relation to the power. 
 As donee of the power, the mortgagee assumes the char- 
 acter of trustee for himself and the mortgagor, and all other 
 parties having interests in the mortgaged premises. In this 
 capacity he is under the ordinary obligations of a trustee, 
 and bound in his actions by the same rules of duty. 28 In 
 
 24Doolittle v. Lewis, 7 Johns. Ch. 45; Wilson v. Traup, 2 Cow. 236; 
 Jencks r. Alexander, 11 Paige Ch. 619; Berger V. Bennett, 1 Caine's 
 Cas. 1; Slee v. Manhattan Co., 1 Paige Ch. 48; Harnickell V. Orndoff, 
 35 Md. 341; Pickett V. Jones, 63 Mo. 195; Strother V. Law, 54 111. 413; 
 Bush r. Sherman, 80 111. ICO; Solberg v. Wright, 33 Minn. 224; Holmes 
 f. Turner's Falls Lumber Co., 150 Mass. 535; Sanford V. Kane, 24 111. 
 App. 504; reversed 127 111. 591. But see Dameron f. Eskridge, 104 N. 
 C. 621. And this is also true where the assignment of the debt works 
 an assignment of the mortgage. Such an assignee may exercise the 
 power in those States where such a transaction is looked upon as a 
 legal assignment. See cases supra. And the assignee may exercise the 
 power, although the assignment has not been recorded. Montague r. 
 JXiwes, 12 Allen 397; s. c. 14 Allen 373. But it has been held in Mis- 
 souri, that the power must be expressly limited to the mortgagee and 
 assigns, in order that the assignee may exercise the power. Dnlbeur v. 
 Worduft, 84 Mo. 619; Axman v. Smith, 156 Mo. 286, 57 S. W. Rep. 105. 
 
 --Chilton r. Brooks, 71 Md. 445. 
 
 2Sedgwick v. Laflin, 10 Allen 430; Torrey v. Cook, 116 Mass. 165. 
 
 **Neidig r. Eiffer, 18 Abb. Pr. 353; Parshall v. Eggart, 52 Barb. 307; 
 Holmes r. Hall, 8 Mich. 66; Bousey v. Amee, 8 Pick. 236. 
 
 28 Kelsay r. Farmers' & Traders' Bank, 166 Mo. 157, 65 S. W. Rep. 
 
 40 ( J
 
 278 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 the execution of the power he must exercise the most scrupu- 
 lous care to render the sale of the premises as beneficial as 
 possible to all parties concerned. And he will be liable in 
 damages for any loss to such parties resulting from his neg- 
 ligence in the conduct of the sale. 29 In most of the States 
 where mortgages with power of sale are in common use, the 
 execution of the power is regulated by local statutes. But 
 in the absence of statutory regulations, sales under the power 
 are governed by the same rules as apply to the sale of other 
 trust property. 30 A failure to observe the statutory require- 
 
 1007; Axman v. Smith, 156 Mo. 286, 57 S. W. Rep. 105. The trustee 
 in a deed of trust occupies the same relation as the mortgagee, i. e., 
 he is agent for both debtor and creditor. Axman v. Smith, supra. 
 
 29 Tomlin v. Luce, 43 Ch. Div. 191. 
 
 ao Howard V. Ames, 3 Mete. 311; Robertson V. Norris, 1 Gift*. 424; 
 Jencks v. Alexander, 11 Paige Ch. 624; Ellsworth v. Lockwood, 42 N. 
 Y. 89; Leet v. McMaster, 51 Barb. 236; Montague v. Dawes, 14 Allen 
 369. Mere inadequacy of price will not vitiate the sale, but if the 
 property has been so grossly sacrificed that the purchaser may be pre- 
 sumed to know of it, the sale will be avoided. Vail v. Jacobs, 62 Me. 
 130; King V. Bronson, 122 Mass. 122; Horsey v. Hough, 38 Md. 130; 
 Landrum r. Union Bk. of Mo., 63 Mo. 48; Iloodless V. Reid, 112 111. 
 105; Maxwell v. Newton, 65 Wis. 261; Gross v. Janesok, 10 N. Y. S. 
 541; Chilton v. Brooks, 71 Md. 445; Condon v. Maynard, 71 Md. 601. 
 And any fraudulent mismanagement or deception practiced upon the 
 mortgagor will avoid the sale, if the purchaser participates in it, or 
 is cognizant of it. Bnnta v. Maxwell, 12 How. Pr. 479; Lee V. Mc- 
 Masters, 51 Barb. 236; Bush V. Sherman, 80 111. 160; Hurd V. Case, 32 
 111. 45; Jackson V. Crafts, 18 Johns. 110; Mann v. Best, 62 Mo. 491. 
 Notice of the sale to the parties interested in mortgaged premises is 
 not necessary to validity of sale in absence of a statutory requirement. 
 Carver v. Brady, 104 N. C. 219. The action to set aside a sale under a 
 power is an equitable proceeding to redeem the property. A bill to set 
 aside the sale, without offering to redeem, will not be entertained. 
 Candee v. Burke, 1 Hun 546; Vroom V. Ditmas, 7 Cow. 13; Robinson v. 
 Ryan, 25 N. Y. 320; Schwartz v. Sears',' Walk. (Mich.) 170. But the 
 bill must be filed within a reasonable time after the discovery of the 
 fraud or other equitable claim. Acquiescence is treated as a waiver of 
 all irregularities in the sale. Hamilton v. Lubukee, 51 111. 415; Bush 
 v. Sherman, 80 111. 160; Hoffman v. Harrington, 33 Mich. 392; Landrum 
 v. Union Bk. of Mo., 63 Mo. 48; Alexander v. Hill, 88 Ala. 487. In 
 sales by a trustee, under deed of trust, as the power of sale is a per- 
 410
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 278 
 
 ments, or the terms of the power, will invalidate the deed of 
 conveyance made in pursuance of the sale, even in the hands 
 of a purchaser without actual notice. 31 There must be a sub- 
 stantial compliance with such regulations, in order to pass 
 a good title to the purchaser, the burden of proof being cast 
 upon the purchaser unless the recitals show a compliance with 
 the requirements oi' the law. 32 The sale will, however, under 
 
 sonal trust, the trustee must be present and supervise the sale and act 
 with impartiality to protect the rights of both debtor and creditor. 
 Kelso v. Farmers' Bank, 168 Mo. 157, 05 S. W. Rep. 1007. 
 
 si The provisions of a mortgage, in regard to notice of sale, on de- 
 fault, must be complied with or the sale will be void. Ford v. Nesbit 
 (Ark. 1904), 79 S. W. Rep. 793; Bausman v. Kelly, 38 Minn. 197, 8 
 Am. Rep. 661. 36 N. W. Rep. 333; Welsh 17. Cooley, 44 Minn. 446, 46 
 X .W. Rep. 908. 
 
 32 Smith v. Prodin, 4 Allen 518; Roarty v. Mitchell, 7 Gray 243; 
 Bradley v. Chester Val. R. R., 36 Pa. St. 141; John *. Bumpstead, 17 
 Barb. 100; Root V. Wheeler, 12 Abb. Pr. 294; Gibson v. Jones, 5 
 Leigh, 370; Orinsby v. Tarascon, 3 Litt. 404. Tyler v. Herring (Miss.), 
 6 So. Rep. 740; Pierce v. Grunley (Mich.) 43 N. W. Rep. 932. 
 Among others, the following circumstances have been deemed sufficient 
 to set aside the sale: Neglect to give the required notice to the parties 
 interested. Low V. Purdy, 2 Lans. 422; King v. Duntz, 11 Barb. 191; 
 Randall v. Hazleton, 12 Allen, 422; Green r. Cross, 45 N. H. 594; 
 Drinan v. Nichols, 115 Mass. 353; Carpenter v. Black Hawk, etc., Co., 
 65 N. Y. 43; Rutherford V. Williams, 42 Mo. 18; Hoodlers v. Ried, 
 112 111. 105; Clark V. Simmons, 150 Mass. 357. An insufficient publica- 
 tion of notice. Lawrence V. Farmers' Loan, etc., Co. 13 N. Y. 642; 
 Elliott v. Wood, 45 N. Y. 71; Gibson v. Jones, 5 Leigh, 370; Bush v. 
 Sherman, 80 111. 160; Hubbell v. Sibley, 50 N. Y. 468; Calloway v. 
 People's Bank, 54 Ga. 441; Dickerson v. Small, 64 Md. 395; Morse V. 
 Byam, 55 Mich. 594; Bacon v. Kennedy, 56 Mich. 329; Magnasson v. 
 Williams, 111 111. 450; Lester v. Citizens Sav. Bank (R. I.), 20 Atl. 
 Rep. 231; Williamson v. Stone, 27 111. App. 214, 128 111. 129. It is 
 not usually necessary to sell the property in parcels, and unless it is 
 essentially advantageous to the mortgagor, a failure to do so will not 
 vitiate the sale. Rowley v. Brown, 4 Binn. 61; Chesley r. Chesley, 49 
 Mo. 540; s. c. 54 Mo. 347; Sumrall v. Chaffin, 48 Mo. 402; Ellsworth 
 v. Lockwood, 42 N. Y. 89; Shannan v. Hay, 106 Ind. 589; Willard v. 
 Finnegan, 42 Minn. 476; Holmes v. Turner's Falls Lumber Co., 150 
 Mass. 535; see statutes in New York, and several other States to the 
 same effect. A sale on credit, when that is not expressly authorized, 
 
 411
 
 279 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 such circumstances, operate as an equitable assignment of the 
 mortgage and pass to the purchaser, whatever title the mort- 
 gagee, as such, has in the land. 33 And whether the purchaser 
 claims title as assignee of the mortgage or not, the subse- 
 quent exercise of the power of sale in foreclosure is in no- 
 wise affected by the illegal exercise of the power. 3 * 
 
 279. Purchase by mortgagee at his own sale. Since the 
 mortgagee as donee of the power is a trustee for all parties 
 concerned, he will not be permitted to purchase at his own 
 sale, directly or indirectly, unless he is authorized to do so by 
 statute or by the terms of the mortgage. And such a pur- 
 chase may be avoided at the instance of the mortgagor, 'even 
 though the consideration be fair and adequate. 35 The pur- 
 is invalid. Olcut v. Bynum, 17 Wall. 44; Mead v. McLaughlin, 42 Mo. 
 108; Arnold v. Green, 15 R. I. 348; see 2 Jones on Mort., Sees. 1868, 
 1869. But he may give credit for what is coming to him, although 
 not authorized. Strother v. Law, 54 111. 413. A sale is absolutely void 
 only where there is a complete failure to comply with an essential 
 requirement (Bigler v. Waller, 14 Wall. 297) ; and only voidable at the 
 election of the parties, when the exercise of a discretion as to the man- 
 ner of compliance is irregular or unwise. Ingle v. Culbertson, 43 
 Iowa 265. And to avoid the sale in the hands of a purchaser for 
 value, notice of the irregularity must be brought to him. Mann V. 
 Best, 62 Mo. 461; Sternberg v. Dominick, 14 Johns. 435; Montague V. 
 Dawes, 12 Allen, 397; Hoit v. Russel, 56 N. H. 559; Hamilton v. 
 Lubukee, 51 111. 415; Jackson v. Henry, 10 Johns. 185. The mere fact 
 that land is sold in bulk, instead of in parcels, will not vitiate the 
 mortgage sale, in Missouri. Benton Land Co. v. Zeitler, 182 Mo. 251, 
 81 S. W. Rep. 193.. See, also, Anglo-California Bank v. Cerf, 142 Cal. 
 303, 75 Pac. Rep. 902; Bozarth V. Largent, 128 111. 95, 21 N. E. Rep. 
 218; Sowle V. Champion, 16 Ind. 165; Nesbit v. Hanway, 87 Ind. 400; 
 Brumbaugh V. Shoemaker, 51 Iowa, 148, 50 N. W. Rep. 493; Dickert 
 v. Weise, 2 Utah, 350. 
 
 sa Sawyers v. Baker, 77 Ala. 461. 
 
 3*Ohnsburg v. Turner, 87 Mo. 127. 
 
 35 Downes v. Grazebrook, 3 Meriv. 207 ; Davone v. Fanning, 5 Johns. 
 Ch. 257; Jackson v. Walsh, 14 Johns. 415; Elliott v. Wood, 45 N. Y. 
 71; Patten v. Pearson, 57 Me. 435; Jcnnison v. Hapgood, 7 Pick. 1; 
 Howard v. Ames, 3 Mete. 308; Dyer V. Shurtlieff, 112 Mass. 165, 17 
 Am. Rep. 77; Hall v. Bliss, 118 Mass. 560, 19 Am. Rep. 475; Waters 
 412
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 280 
 
 chase by the mortgagee without express authority is, however, 
 only voidable at the election of the mortgagor and his privies. 
 And they cannot invalidate the sale, if the property in the 
 meantime has passed into the hands of an innocent pur- 
 chaser. 36 
 
 280. Extinguishment of the power. The power is ex- 
 tinguished by any acts, which will discharge the mortgage, 
 such as payment or tender of payment, and the exercise of 
 the power afterwards will not vest a good title in any pur- 
 
 r. Groom, 11 Clark & F. 684; Michaud v. Girod, 4 How. 553; Scott 
 r. Freeland, 7 Smed. & M. 418; Roberts V. Fleming, 53 111. 19G; Par- 
 menter v. Walker, 9 R. I. 225 ; Whitehead v. Hellen, 76 X. C. 99 ; Ben- 
 ham v. Rowe, 2 Cal. 387; Chilton v. Brooks, 71 Md. 601; Bohn r. 
 Davis, 75 Tex. 24; Nichols r. Otto (111.), 23 N. E. Rep. 411. Stat- 
 utory provisions, authorizing the mortgagee to purchase at his own 
 sale, are to be found in New York, Michigan, Wisconsin, Minnesota, 
 Maryland. 2 Washburn on Real Prop. 74; 2 Jones on Mort., Sec. 1740. 
 It is not necessary to show fraud or unfair dealing in order to avoid 
 purchase by the mortgagee. Rutherford v. Williams, 42 Mo. 18; Thorn- 
 ton r. Irwin, 43 Mo. 153; Blockley v. Fowler, 21 Cal. 326. Contra, 
 Richards V. Holmes, 18 How. 143; Howard V. Davis, 6 Texas, 174; 
 Hamilton v. Lubukee, 51 111. 420. W T hen the sale is made under a 
 judicial decree, or by a public officer, when that is permitted, there is 
 no restriction upon the right of the mortgagee to purchase. Richards 
 r. Holmes, 18 How. 143; Maxwell V. Newton, 65 Wis. 261. Contra, 
 Saines v. Allen, 58 Mo. 537. The common law rule that a mortgagee 
 could not purchase at the foreclosure sale, is not generally enforced 
 at the present day. Hamilton r. Rhodes (Ark. 1904), 83 S. W. Rep. 
 351; N. Y. Merc. Co. v. Thurmond, 186 Mo. 410, 85 S. W. Rep. 333; 
 Farm Land Co. v. St. Raynor (Neb. 1905), 102 N. W. Rep. 610; 
 Mutual L. & B. Co. V. Hiss, 100 Ga. Ill; Ellenbarger V. Griffin, 55 
 Ark, 268; Knox r. Armstead, 87 Ala. 511, 13 Amer. St. Rep. 65. 
 
 ss Dexter v. Shepard, 117 Mass. 480; Burns v. Thayer, 115 Mass. 89; 
 Robinson v. Cullom, 41 Ala. 693; Rutherford V. Williams, 42 Mo. 18; 
 McCall v. Mash (Ala.), 7 So. Rep. 770. And the right to avoid the sale 
 is extinguished by ratification of the mortgagor, or his acquiescence 
 therein for an unreasonably long time. Dobson v. Racey, 8 N. Y. 216; 
 Patton r. Pearson, 60 Me. 223 ; Learned r. Foster, 117 Mass. 305; Ber- 
 gen V. Bennett. 1 Caine's Cas. 19; Munn V. Burgess, 70 111. 604; 
 Medsker r. Swaney, 45 Mo. 273; Craddock V. Am. Freehold, etc., Co., 
 88 Ala. 281. The doctrine of lona fida purchaser does not apply to 
 
 413
 
 281 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 chaser, 37 unless the mortgagor by his own acts is estopped 
 from denying the validity of the sale. Thus, for example, 
 if the mortgagor is present at the sale and makes no protest, 
 and gives no notice of his rights to the bystanders, he will 
 be precluded under the doctrine of estoppel from setting aside 
 the sale as against an innocent purchaser. 38 The power is, 
 however, unaffected by the institution of an action for fore- 
 closure, as long as the foreclosure has not been effected. 39 
 
 281. Application of the purchase money. The mortgagee, 
 on receiving the proceeds of sale, must apply it first to the 
 expenses of the sale, and then to the satisfaction of the mort- 
 gage-debt. And if there is a surplus remaining, he holds it 
 in trust for the junior incumbrancers, and lastly, the mort- 
 gagor. Such surplus has in equity all the qualities of real 
 estate, and, if the mortgagor has died, will be distributed 
 among the widow and heirs, instead of going to his personal 
 representatives. 40 On the other hand, if the purchase-money 
 
 a purchaser at a foreclosure of a mortgage sale. Cooper v. Ryan 
 (Ark. 1904), 83 S. W. Rep. 328. 
 
 37 Cameron r. Irwin, 5 Hill, 272; Charter v. Stevens, 3 Denio, 33; 
 Burnet r. Dennister, 5 Johns. Ch. 35; Warner v. Blakeman, 36 Barb. 
 501; 2 Jones on Mort., Sees. 886-893. Tender after condition broken 
 does not at common law extinguish the power. Cranston v. Crane, 
 97 Mass. 459; Montague V. Dawes, 12 Allen 397. But in most of the 
 States, payment has the same effect after as well as before condition 
 broken. Jenkins v. Jones, supra; Cameron v. Irwin, supra, Flower v. 
 Elwood, 66 111. 438; Burnet v. Denniston, 5 Johns. Ch. 35; Whelom 
 v. Reilly, 61 Mo. 565; see 2 Jones, on Mort. Sec. 893; and ante, Sec. 
 247. But as long as the mortgage remains unsatisfied on the records, 
 a sale after payment would be upheld in favor of a purchaser for 
 value and without notice; Elliott v. Wood, 53 Barb. 285; Brown V. 
 Cherry, 65 Barb. 635; Warner v. Blakeman, 56 Barb. 501. 
 
 38 Cromwell v. Bank of Pittsburg, 2 Wall. Jr. 569; Smith v. Newton, 
 38 111. 230. 
 
 so Jenkins v. International Bank, 111 111. 462. 
 
 4<>Buttrick v. Wentworth, 6 Allen, 79; Andrews V. Fisa, 101 Mass. 
 
 422; Dunning v. Dean Nat. Bank, 61 N. Y. 497; 19 Am. Rep. 293; 
 
 Sweezy V. Thayer. 1 Duer, 286; Hawley v. Bradford, 9 Paige, 200; 
 
 Pickett v. Buckner, 45 Miss. 226; Hinchman r. Stiles, 9 N. J. Eq. 
 
 414
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 282 
 
 fell short of a settlement of the mortgage debt, the mortgagee 
 may recover the balance of the debt in an action on the per- 
 sonal obligation. 41 
 
 282. Deeds of trust. Somewhat similar in effect, to mort- 
 gages with power of sale are deeds of trust, in which the 
 property is conveyed to a trustee in trust to secure the cred- 
 itor in his claim, and to sell the property for the satisfaction 
 of the debt, if it is not paid at maturity. This conveyance 
 is in the nature of a mortgage, and is very often used to se- 
 cure an issue of railroad bonds, so as to avoid the necessity 
 of giving a mortgage to each bond. But it is also very gen- 
 erally used in some of the Western States in the place of an 
 ordinary mortgage, in order to obviate the difficulty of se- 
 curing a valid sale of the premises, which is so often experi- 
 
 454; Shaw V. Hoodley, 8 Blackf. 165; Reid v. Mullins, 43 Mo. 306. 
 In Vermont and Michigan, the surplus is held to be personalty, and 
 vests in the personal representatives instead of the widow and heirs. 
 Varnum V. Meserve, 8 Allen, 158; Smith v. Smith, 13 Mich. 258. 
 The surplus is distributed among the claimants according to the priority 
 of their respective interests, and their rights in case of a dispute may 
 be settled by a suit against the mortgagee for the recovery of their al- 
 leged share in the surplus. Bevier V. Schoonmaker, 29 How. Pr. 411; 
 Cope V. Wheeler, 41 N. Y. 303; Stoever v. Stoever, 9 Serg. & R. 434; 
 Matthews v. Duryea, 45 Barb. 69 ; Reynolds v. Hennessey, 15 R. I. 
 215. Or the mortgagee may file a bill of interpleader, and compel the 
 adverse claimants to settle their disputes. Bleeker v. Graham, 2 Edw. 
 Ch. 647; The People v. Ulster Com. Pleas, 18 Wend. 628; Bailey v. 
 Merritt, 7 Minn. 159. But without the consent of the mortgagor the 
 mortgagee has no power to appropriate the money to any debt of the 
 mortgagor which is not secured by the mortgage. Johnson 17. Thomas, 
 77 Ala. 367. In Missouri, the surplus would go to the administrator of 
 the mortgagor. Curtis 17. Moore, 162 Mo. 442, 63 S. W. Rep. 80. 
 
 41 Shepherd v. May, 115 U. S. 505. See, generally, as to disposition 
 of surplus proceeds, after sale, Berner v. State Bank, 125 Iowa, 438, 
 101 N. W. Rep. 156; Guenther 17. Wisdom (Ky. 1905), 84 S. W. Rep. 
 771; New York Store Merc. Co v. Thurmond, 186 Mo. 410, 85 S. W. 
 Rep. 333. The doctrine of the text is not applicable to preferential 
 expenses and charges, pending foreclosure, in the case of mortgages by 
 railroads and other carriers. Van Frank f. St. Louis & Cape Girardeau 
 R. Co., 89 Mo. App. 489. 
 
 415
 
 282 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 enced when the mortgagee exercises the power of sale. It is 
 the conveyance of a legal estate in trust to secure the debt and 
 its satisfaction by sale upon the breach of the condition. 42 
 It is to be distinguished from an assignment for the benefit 
 of creditors and does not come within the operation of laws 
 which prohibit preferential assignments. 41 It has been held 
 that the mere payment of the debt will not revest title in the 
 grantor. 44 But the payment or tender of payment will ren- 
 der the trust inoperative so far as the subsequent exercise of 
 the power is concerned. 45 The grantor by such a conveyance 
 divests himself of his entire legal estate in possession, and has 
 nothing left, against which execution may issue. But he 
 has a reversionary interest, which in equity may be reached 
 by a creditor's bill, and which is also capable of alienation. 40 
 If the trustee dies or refuses to execute the trust, the court 
 Vv'ill appoint another to take his place; and in some of the 
 States, by statute, it is provided that, upon the death, in- 
 ability or refusal of the trustee to serve, the sheriff will be 
 
 42 Devin V. Hendershott, 32 Iowa, 194; Sherwood v. Saxton, 63 Mo. 
 78; Richard v. Holmes, 18 How. 147; WoodVuff v. Robb, 19 Ohio 122; 
 Chappell v. Allen, 38 Mo. 213. See Heard v. Baird, 40 Miss. 799; 
 Lenox v. Reed, 12 Kan. 233; Union Nat. Bank v. Bank of Kansas City, 
 136 U. S. 223; Plum v. Studebaker, 39 Mo. 162. But see 2 Am. Law. 
 Reg. (N. s.) 655. , 
 
 Union Nat. Bank v. Bank of Kansas City, 136 U. S. 223. 
 
 44 Heard v. Baird, 40 Miss. 796. But the weight of authority is in 
 favor of holding that a reconveyance is not necessary, although a satis- 
 faction on the records may be required. Crosby v. Huston, 1 Texas, 239 ; 
 Ingle v. Culbertson, 43 Iowa, 265; McGregor v. Hall, 3 St. & P. 397; 
 Woodruff v. Robb, 19 Ohio, 122; Smith v. Doe, 26 Miss. 291. 
 
 45 Thornton V. Boyden, 31 111. 210; Heard V. Baird, 40 Miss. 796. 
 The trustee, under a deed of trust, is vested with a power, coupled 
 with an interest which survives the death of the grantor. Frank v. 
 Colonial & N. S. Mort. Co. (Miss. 1905), 38 So. Rep. 340, Jones Mort. 
 (6ed.) Sec. 1792; Markwell v. Markwell, 157 Mo. 326, 57 S. W. Rep. 
 1078; Kelsay v. Bank, 166 Mo. 157, 65 S. W. Rep. 1007. 
 
 4Pettit v. Johnson, 15 Ark. 55; Turner V. Watkins, 31 Ark. 429; 
 Mclntyre v. Agric. Bank, 1 Freem. Ch. 105; Heard v. Baird, 40 Miss. 
 796; Tyler v. Herring (Miss.), 7 So. Rep. 840; 2 Jones on Mort., Sec. 
 1769. 
 
 416
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 283 
 
 authorized to execute the trust. Or the deed may itself pro- 
 vide for a substitution of trustees. 47 But without express 
 authority the trustee can in no case delegate his power to 
 sell. 48 But the court may, if they deem it wise, compel the 
 trustee to execute the trust instead of appointing another. 49 
 If there are two or more trustees named as joint donees of the 
 power, the sale will be valid, in the absence of direct proof 
 of fraud or unfairness, although it is conducted in the ab- 
 sence of one of them. 50 This class of deeds of trust is gov- 
 erned by the same equitable rules, which are applied to or- 
 dinary trusts, unless there are statutory provisions intended 
 to supersede them. 
 
 283. Contribution to redeem General statement. When 
 one of two or more persons jointly liable on a debt pays 
 
 *7 Lake v. Brown, 116 111. 83. 
 
 48 Holden V. Stickney, 2 McArthur, 141; Farmers' Loan, etc., Co. V. 
 Hughes, 11 Hun 130; McKnight V. Winner, 38 Mo. 132; Whittlesey V. 
 Hughes, 39 Mo. 13. If there are two or more trustees, upon the death 
 of one, the survivors may execute the power. Peter v. Beverley, 10 
 Pet. 565; Franklin v. Osgood, 14 Johns. 527; Hannah V. Carrington, 18 
 Ark. 104. The trustee is agent for both debtor and creditor. Axman 
 V. Smith, 156 Mo. 286, 57 S. W. Rep. 105. The trustee must be per- 
 sonally present at sales under the power. Kelsay v. Bank, 166 Mo. 
 157, 65 S. W. Rep. 1007. 
 
 *0 Leffler v. Armstrong, 4 Iowa, 482; Sargent V. Howe, 21 111. 148; 
 Drane v. Gunter, 19 Ala. 731; Bradley v. Chester Val. R. R., 36 Pa. 
 St. 141. Sales under the power are watched and closely scrutinized 
 by the courts, and a court of equity will at any time, at the instance 
 of one interested in the property, direct, restrain or enforce the exercise 
 of the power. Goode V. Comfort, 39 Mo. 325; Youngman v. Elmira, 
 etc., R. R., 65 Pa. St. 278; Newman v. Jackson, 12 Wheat. 572; 
 Brown v. Bartee, 10 Smed. & M. 275; Kock v. Briggs, 14 Cal. 256; 
 Reece v. Allen. 5 Gilm. 236. 
 
 so Smith v. Black, 1 15 U. S. 308. On the death of a trustee, if the 
 trust then devolves on the court, it appoints, not a substituted trustee, 
 but a representative of the court, to execute the trust. In re Guental, 
 90 N. Y. S. 138, 97 App. Div. 530. A trustee has no power to ap- 
 point his successor, unless this power is expressly conferred. White- 
 head t?. Whitehead (Ala. 1904), 37 So. Rep. 929; Wilson v. Towle, 
 36 N. H. 129. 
 
 87 417
 
 283 ' REMEDIES INCIDENT TO MORTGAGES. [pAKT I. 
 
 the whole debt, he has the right to call upon the others for 
 contribution towards such payment in proportion to their 
 several interests in the debt. This liability for contribution 
 is an incident to all contractual obligations, and the same 
 rules of construction apply, whatever may be the nature or 
 origin of the debt. In the present discussion the liability 
 for contribution arises out of the joint obligation of several 
 persons to answer for the mortgage-debt, either in their person 
 or with their interests in the mortgaged premises. It has 
 been explained that when a person is entitled to redeem, 
 and is interested only in a part of the premises, he must 
 pay the entire debt, and as against the others jointly inter- 
 ested with him, he becomes subrogated to the mortgagee, 
 and is equitable assignee of the mortgage, even though the 
 mortgage has been satisfied on the records. He can then, in 
 turn, foreclose the mortgage against them if they refuse to pay 
 their pro rata share of the debt. This liability constitutes the 
 right to contribution, as applied to mortgages. It is not a per-, 
 sonal liability resting upon the persons interested in the mort- 
 gaged premises; their interests are alone liable. Nor can 
 they be compelled to contribute; they have the right to re- 
 fuse and to surrender their interests to forfeiture under 
 foreclosure. 51 This liability of their interests depends upon 
 the equality or inequality of their respective equities in re- 
 gard to the mortgage and the debt, and must, therefore, 
 vary according to the relation of the parties between whom 
 the question arises. But whatever may be the relation of 
 
 si Cheeseborough v. Millard, 1 Johns. Ch. 409 ; Stevens v. Cooper, 
 7ft. 425; Lawrence v. Con-ell, 4 Johns. Ch. 542; Salem v. Edgerly, 33 
 N. H. 46; Chase v. Woodbury, 6 Cush. 143; Gibson v. Crehore, 5 Pick. 
 146; Briscoe v. Power, 47 111. 449; Wilkes v. Vaughan (Ark. 1904), 83 
 S. W. Rep. 913; Barrett V. Armstrong (W. Va. 1904), 48 S. E. Rep. 
 140; Blair v. Blair, 90 N. Y. S. 190, 97 App. Div. 507. Contribution 
 will not lie unless the payment was made by a joint debtor, as such. 
 If one joint debtor buys the mortgaged property and assumes the mort- 
 gage debt, as a part of the consideration, an action for contribution 
 will not lie. Weidemeyer V. Landon, 66 Mo. App. 520. 
 
 418
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 284 
 
 these parties to each other, the mortgagee cannot be com- 
 pelled to observe the equality or inequality of their equities 
 in the enforcement. He can proceed against any one of them, 
 against whom he has a claim for the satisfaction of the 
 mortgage, whether his equity was inferior or superior. 52 
 
 284. Mortgagor v. his assignees. Since the mortgagor is 
 personally liable to pay the debt, as a general rule he 
 would have no right to call upon his assignees to contrib- 
 ute, nor could his heirs or devisees claim such a right.-" 
 But if the purchaser assumed the mortgagor's liability as 
 a part of the consideration of the conveyance, should the 
 mortgagor be afterwards compelled by the mortgagee to 
 pay the debt, the mortgagor would be subrogated to the 
 rights of the mortgagee under the mortgage, and could en- 
 force it against such purchaser. 54 Where there is no agree- 
 ment on the part of the purchaser to pay the debt, if the mort- 
 gage is foreclosed, the purchaser can claim from the mort- 
 gagor exoneration for the full amount lost by foreclosure. 55 
 On the other hand, if the purchaser of the mortgagor's estate 
 has assumed, in whole or in part, the payment of the mort- 
 gage-debt, he cannot claim contribution of the mortgagor, aft 
 long as he is not forced to pay more than he has agreed to 
 pay. 58 
 
 B2 Palmer v. Snell, 111 111. 161. 
 
 ssHarbert's Case, 3 Rep. 11; Chase v. Woodbury, 6 Cush. 143; Allen 
 17. Clark, 17 Pick. 47; Beard v. Fitzgerald, 108 Mass. 134; Clowes p. 
 Dickinson, 5 Johns. Ch. 235; Lock v. Fulford, 52 111. 166; 2 Jones on 
 Mort., Sec. 1090. 
 
 "Cox v. Wheeler, 7 Paige Ch. 257; Halsey v. Reed, 9 Paige Ch. 446; 
 Kinnear V. Lowell, 34 Me. 299; Sweet v. Sherman, 109 Mass. 231; 
 Lily t?. Palmer, 51 111. 333; Krueger v. Ferry, 41 N. J. Eq. 432; Miller 
 v. Fasler, 42 Minn. 366; Miller v. Eisele, 42 Minn. 368; Gerdine v. 
 Menage, 41 Minn. 417. 
 
 65 Davis v. Winn, 2 Allen 111; Downer v. Fox, 20 Vt. 388; Young f. 
 Williams, 17 Conn. 393; Burnett v. Denniston, 5 Johns. Ch. 35; Mc- 
 Lean v. Towle, 3 Sandf. Ch. 119; Gunst v. Pelham, 14 Tex. 586. 
 
 oe Moore V. Shurtleff, 128 111. 370; Gunst f. Pelham, 14 Tex. 586. In 
 a purchase of the mortgagor's equity, if the purchaser assumes the 
 
 419
 
 285 REMEDIES INCIDENT TO MORTGAGE [PART I. 
 
 285. Contribution between the assignees of the mortgagor 
 Effect of release of one of them. If the mortgaged prop- 
 erty consists of two or more parcels of land, and they are 
 simultaneously conveyed by the mortgagor to different per- 
 sons, and one of the parcels is sold under foreclosure of the 
 mortgage, the assignee or grantee of that parcel has the right 
 to recover from the assignees of the other parcels their 
 pro rata share of the debt; the debt being divided among 
 them in proportion to the value of their respective parcels. 57 
 But where the assignments have been made successively, or 
 at different times, the courts have delivered contrary opinions 
 in respect to their liability for contribution. In most of the 
 States the rule prevails that their liability for contribution 
 to each other is in the inverse order of alienation; in other 
 words, that the equity of the .prior purchaser or assignee 
 is superior to that of the subsequent purchaser. So, if the 
 prior purchaser is called upon to redeem, or his lot or parcel 
 is foreclosed, he becomes an equitable assignee of the mort- 
 gage, and may enforce it against the subsequent purchasers 
 of the other parcels, who, in order to redeem, must contrib- 
 ute to the full value of their estates in the inverse order of 
 their alienation, the last being required to exhaust his entire 
 
 mortgage debt, as a part of the consideration, he is generally held 
 to be the principal debtor thenceforth and the mortgagor becomes his 
 surety. Nelson v. Brown, 140 Mo. 580; Pratt v. Conway, 148 Mo. 
 291; Wagman u. Jones, 58 Mo. App. 313. As to effect, upon the mort- 
 gagor, as to the statutes of limitations, of payments subsequently made 
 by his assignee, see Reagan V. Williams, 185 Mo. 620, 84 S. W. Rep. 
 959. See also ante, Sec. 253 and note. 
 
 57 Chase v. Woodbury, 6 Cush. 143; Bailey v. Myrick, 50 Me. 171; 
 Aiken v. Gale, 37 N. H. 501; Stevens v. Cooper, 1 Johns. Ch. 425; 
 Briscoe r. Power, 47 111. 448. The following late cases discuss and 
 establish the legal status and relation of successive grantees, who assume 
 the mortgage debt, Stough v. Badger Lumber Co. (Kan. 1905), 79 Pac. 
 Rep. 737; Grey v. Freeman (Tex. 1905), 84 S. W. Rep. 1105; Ray v. 
 Lobdell, 213 111. 389, 72 N. E. Rep. 1076; Reagan v. Williams, 185 
 Mo. 620, 84. S. W. Rep. 959; Germania Ins. Co. v. Casey, 90 N. Y. S. 
 418, 98 App. Div. 88; Merriam v. Schmidt, 211 111. 263, 71 N. E. Rep. 
 986; Santee V. Keefe (Iowa. 1903), 102 N. W. Rep. 803. 
 420
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 285 
 
 interest in the mortgaged property before there can be any 
 right of contribution against a prior purchaser. If, there- 
 fore, the last parcel conveyed is sufficient to satisfy the debt, 
 the prior purchaser takes his estate free from any liability 
 for contribution. The inequality of their equities rests upon 
 the doctrine that inasmuch as, after the first assignment, 
 the estate remaining in the mortgagor became the primary 
 fund for the satisfaction of the debt, the second and other 
 subsequent purchasers took, in respect to their relative liabil- 
 ities under the mortgage, only such equities as the mortgagor 
 had at the time of the successive conveyances to them. 58 In 
 a few of the States it is held that the equities are equal be- 
 tween assignees of the mortgagor, whether the alienations 
 are simultaneous or successive, and this opinion finds strong 
 support in Judge Story. 59 But it is believed that the pre- 
 ponderance of authority is in favor of the former theory, 
 and it may be accepted as the prevailing rule in this country. 
 This question of priority is, however, always subject to the 
 agreement of the parties. 60 But if the mortgagee should 
 release one of the assigned lots from the lien of the mort- 
 gage without the consent of the other assignees and after 
 the assignment of the other lots to them, it would discharge 
 
 88 Gushing r. Ayer, 25 Me. 383; Shepherd v. Adams, 32 Me. 64; 
 Brown r. Simons, 44 N. H. 475; Lyman r. Lyman, 32 Vt. 79; Bradley 
 v. George, 2 Allen, 392; Gill v. Lyon, 1 Johns. Ch. 447; Jumel V. 
 Jumel, 7 Paige Ch. 591; Patty v. Pease, 8 Paige Ch. 277; Nailer v. 
 Stanley, 10 Serg. & R. 450; Henkle v. Allstadt, 4 Gratt. 284; Jones i\ 
 Myrick, 8 Gratt, 179; Stoney v. Shultz, 1 Hill Ch. (S. C.) 500; 
 Norton v. Lewis, 3 S. C. 25; Mobile Dock, etc., Co. v. Kuder, 35 Ala. 
 717; Niles v. Harmon, 80 111. 396; Beard v. Fitzgerald, 105 Mass. 134; 
 Mason v. Payne, Walk. (Mich.) 459; MeCullom v. Turpie, 32 Ind. 146; 
 Mahagan v. Meade, 63 N. H. 570; Moore v. Shurtleff, 128 111. 370: 
 Deavitt v. Judevine, 60 Vt. 695; Case Threshing Machine Co. r. 
 Mitchell (Mich.), 42 N. VV. Rep. 151, 74 Mich. 679. 
 
 Green v. Ramage, 18 Ohio, 428; Stanley v. Stocks, I. Dev. Eq. 314; 
 Barney v. Myers, 28 Iowa, 1; Jobe v. O'Brien, 2 Humph. 34; Dickey 
 v. Thompson, 8 B. Mon. 312; Story's Eq. Jur., Sec. 1233 b, and note. 
 Huff v. Farwell, 67 Iowa 298. 
 
 eoVogel v. Shurtliff, 28 111. App. 516. 
 
 421
 
 286 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 the other lots from liability under the mortgage, on the 
 srround that the rights of these other assignees had been 
 injuriously affected by the consequent loss of their claim 
 against the assignee who had been released for contribution 
 i r exonerations. But if the release was made before the as- 
 signment of the other lots, the release would have no effect 
 on the lien of the mortgage over the other lots. 61 So, also, 
 any agreement between the mortgagor and his assignees, in 
 respect to the partition of the mortgage liability between 
 them, will have no effect on the mortgage in the hands of the 
 holder of the mortgage, unless he has assented to such par- 
 tition. 62 
 
 286. Contribution between the surety and the mortgagor. 
 Where the surety, because of his personal liability, pays 
 the mortgage debt, such payment will operate as an assign- 
 ment of the mortgage to him, and he can enforce the mort- 
 gage to its full value against the mortgagor, his heirs, and 
 even his assignees for value. He is only secondarily liable, 
 the mortgagor, and with him the mortgaged premises, being 
 treated as the primary fund out of which the debt is to 
 be satisfied, and until they have been exhausted the surety 
 can claim complete exoneration. 63 The widow who releases 
 the dower right in the mortgaged lands is so far considered 
 a surety that she can make claim of exoneration against the 
 
 eiLibbey v. Tufts (N. Y.), 24 N. E. Rep. 12; Groesback V. Matti- 
 son, 43 Minn. 547. 
 
 02 DeHaven v. Musselman (Ind.), 24 N. E. Rep. 171; Groesbach V. 
 Mattison, 43 Minn. 547. Where it is a part of the consideration of the 
 purchase by a grantee that he will pay the debt, the mortgagee can 
 sue him direct to enforce payment thereof, in Illinois. Merriam v. 
 Schmidt, 211 111. 263, 71 N. E. Rep. 986. 
 
 es Cheesebrough v. Milliard, 1 Johns. Ch. 409; Hayes v. Ward, 4 
 Johns. Ch. 123; Ottman V. Moak, 3 Sandf. Ch. 431; Root v. Bancroft, 
 10 Mete. 48; Mathews v, Aiken, 1 Comst. 595; Bk. of Albion v. Burns, 
 45 N. Y. 170; Burton v. Wheeler, 7 Ired. Eq. 217; Bk. of S. C. V. 
 Campbell, 2 Rich. Eq. 179; Billings V. Sprague, 49 111. 511; McHenry 
 V. Cooper, 27 Iowa, 137; Canaday v. Boliver, 25 S. C. 547. 
 422
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 287 
 
 estate of the deceased husband, and compel the enforcement 
 of a chattel mortgage given for the same debt, in her own 
 behalf. 64 The same rule applies where the one debt is se- 
 cured by two mortgages on separate pieces of property, one 
 of which only is given by the primary debtor, the other 
 mortgage is in the nature of a collateral security, and the 
 primary debtor's mortgage must exonerate the owners of the 
 other mortgaged lands. 65 But if the surety be also the mort- 
 gagor and the other co-debtor the principal, and the latter 
 pays the debt, he will not be subrogated to the rights of the 
 mortgagee. He is the principal, and can claim contribution 
 or exoneration of no one. 66 
 
 287. Between heirs, widow, and devisees of the mortgagor. 
 If the mortgagor dies, and the mortgaged premises descend 
 to his widow and heirs, or are devised by will to several 
 parties, their equities being equal, if one of them redeems, the 
 mortgage will be assigned to him, and he may foreclose 
 the same against the others unless they contribute their pro 
 rata share towards redemption. They are all volunteers, 
 whether they be heirs or devisees, and it is likely if a 
 part of the mortgaged premises were devised and a part 
 descended to the heirs there would be a right in favor of 
 the devisee to contribution from the heir, and vice versa. 07 
 
 * Gore v. Townsend, 105 N. D. 228. Where payment of a mortgage 
 is necessary, to protect the homestead of the widow, she is entitled to 
 contribution from the heirs, and equity will give her a lien on the 
 interest of the heirs for their share of the mortgage debt. Dinsmoore 
 r. Rowse, 211 111. 317, 71 N. E. Rep. 1003. But see as to payment 
 by the heir of a second mortgagee, of a first mortgage, with reference 
 to his right to proceed against the owner of the equity of redemption, 
 who has not agreed to pay the first mortgage. Brethauer v. Schorer, 
 77 Conn. 575, 60 Atl. Rep. 125. 
 
 os Canaday v. Boliver, 25 S. C. 507. 
 
 " Crafts r. Crafts, 13 Gray, 362; Killborn v. Robins, 8 Allen, 471; 
 Cherry v. Monro, 2 Barb. Ch. 618; Morris Admr. r. Davis, 83 Va. 
 297; Germania Ins. Co. v. Casey, 90 N. Y. S. 418, 98 App. Div. 88; 
 Reagan v. Williams, 185 Mo. 620, 84 S. W. Rep. !>:>!. 
 
 * Carll v. Butman, 8 Me. 102 ; Gibson v. Crehore, 5 Pick. 146 ; 
 
 423
 
 288 REMEDIES INCIDENT TO MORTGAGES. [PART I. 
 
 288. Between the mortgaged property and the mortgagor's 
 personal estate. Upon the death of the mortgagor, leaving 
 the mortgage unsatisfied, a claim for contribution or rather 
 exoneration sometimes exists against the mortgagor 's personal 
 estate in favor of the real estate covered by the mortgage. 
 The claim is founded upon the doctrine that the burden was 
 imposed upon the real estate for the benefit of the personal 
 estate, and as between the heirs and next of kin the latter 
 should bear the loss. 68 Only the widow, heirs and devisees 
 can claim this right of exoneration. Purchasers from the 
 heirs, and voluntary purchasers from the mortgagor, cannot ; 
 nor can the heir or devisee exercise the right if they have 
 parted with the equity of redemption, notwithstanding by 
 the terms of their conveyance they are bound to see to the 
 payment of the mortgage. 69 This claim is more clearly con- 
 ceded, where the same debt was secured also by a mortgage 
 of the personalty. 70 It can be enforced only against the per- 
 sonal representatives and residuary legatees. If, therefore, 
 the personal estate has been bequeathed to others in the shape 
 of general or specific legacies, the right to exoneration is 
 
 Houghton v. Hapgood, 13 Pick. 158; Swaine V. Ferine, 5 Johns. Ch. 
 490; Foster v. Hilliard, 1 Story, 77; Jones v. Sheward, 2 Dev. & B. 
 Eq. 179; Merritt v. Hosmer, 11 Gray, 296; Bell v. Mayor of N. Y., 10 
 Paige Ch. 49 ; Drew V. Rust, 36 N. H. 343 ; Eaton v. Simonds, 14 Pick. 
 98; Dinsmoor v. Rowse, 211 111. 317, 71 N. E. Rep. 1003. 
 
 8 Cope v. Cope, 2 Salk. 449; Patton v. Page, 4 Hen. & M. 449; 
 Henagan V. Harllee, 10 Rich. Eq. 285; Trustees, etc., v. Dickson, 1 
 Freem. Ch. 494.' But this is not the case, where the mortgage was 
 executed by a prior owner, and the ancestor purchased the property 
 subject to the mortgage. The heir or devisee must, in such a case, 
 pay the mortgage. Tweddle v. Tweedle, 2 Bro. Ch. 101; Cumberland 
 r. Codington, supra; Brethauer v. Schorer, 77 Conn. 575, 60 Atl. Rep. 
 125. 
 
 e Goodburn v. Stevens, 1 Md. Ch. 42 ; Lupton v. Lupton, 2 Johns. 
 Ch. 614; Cumberland v. Codington, 3 Johns. Ch. 229; Lockhardt V. 
 Hardy, 9 Beav. 379; Haven v. Foster, 9 Pick. 112; Taylor v. Taylor, 
 8 B. Mon. (Ky.) 419; Claws v. Dickenson, 5 Johns. Ch. (N. Y.) 235; 
 3 Amer. & Eng. Dec. in Eq. 206. 
 
 TO Gore v. Townsend, 105 N. C. 228. 
 424
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 290 
 
 lost. 71 Nor oan the right be exercised if the estate of the 
 mortgagor is insolvent; and whether the estate is insolvent 
 or not, it cannot be enforced against property which has 
 been levied upon, nor will the right of exoneration in any 
 case take precedence to liens held by creditors upon the 
 personal property. 72 In New York there will be no such 
 claim for exoneration, unless the mortgagor has by will 
 expressly made the payment of the debt a charge upon the 
 personalty. 78 
 
 289. Special agreements affecting the rights of contribu- 
 tion and exoneration. If, in any case where the right of 
 contribution or exoneration exists by law, the parties to the 
 mortgage agree that one or more parcels covered by the 
 mortgage should be released from the incumbrance, such 
 agreement will be enforced between the parties and their 
 subsequent assignees. But in no case will it be permitted 
 to affect or alter the equities of parties who had previously 
 become interested in the mortgaged property. 74 And if the 
 mortgagee releases one part of the mortgaged premises, after 
 the mortgagor had assigned another part, the mortgagee can 
 only enforce the mortgage against the assignee to an amount 
 determined by the proportion which the value of the entire 
 mortgaged premises bears to the value of such assigned par- 
 cel. 75 
 
 290. Marshalling of assets between successive mortgagees. 
 When there are two mortgages upon one parcel of land, 
 
 "Cope v. Cope, 2 Salk. 449; Mansell's Estate, 1 Pars. Eq. Cas. 367; 
 Gibson v. McCormick, 10 Gill & J. 65; Torr'a Estate, 2 Rawle, 250. 
 
 72 Gibson r. Crehore, 3 Pick. 475 ; Church v. Savage, 7 Cush. 440. 
 
 TsMoseley V. Marshall, 27 Barb. 42; Rapalye V. Rapalye, Ib. 610; 
 Wright v. Holbrook, 32 N. Y. 587. 
 
 T* Welsh v. Beers, 8 Allen, 151; Bryant v. Damon, 6 Gray, 564; 
 Cheesebrough v. Milliard, 1 Johns. Ch. 425. 
 
 TO Stevens v. Cooper, 1 Johns. 425; Stuyvesant v. Hall, 2 Barb. Ch. 
 151; Parkham v. Welsh, 19 Pick. 231; Inglehart v. Crane, 42 111. 261; 
 Taylor v. Short, 27 Iowa 361, 1 Am. Rep. 280. 
 
 425
 
 290 REMEDIES INCIDENT TO MORTGAGES. [F'ART I. 
 
 and the first mortgage covers another parcel which is not 
 included in the second, if the parcel included in both mort- 
 gages is not sufficient to satisfy both debts, equity gives the 
 junior mortgagee the right to call upon the senior mortgagee 
 to exhaust the parcel not covered by both mortgages, before 
 he forecloses against the other parcel. But equity will not 
 compel the first mortgagee to satisfy himself in that manner, 
 if it would be detrimental to his interests or inconvenient 
 to him. In such a case, however, the court will direct him 
 to assign his mortgage to the junior mortgagee, who may 
 then foreclose against the parcel not covered by his own 
 mortgage. 76 An exception to this rule of marshalling of 
 assets between two mortgages is however recognized in favor 
 of a wife who joins in the execution of one mortgage for 
 the purpose and with the intention of relinquishing her 
 homestead, and reserves her homestead in the execution of 
 the second mortgage. The second mortgagee cannot, on the 
 principle set forth above, claim the right of satisfying his 
 claim against the homestead. 77 Not only is this the case, but 
 the first mortgagee can be required to exhaust his lien on the 
 mortgaged property, which is not covered by the homestead 
 claim, before he is permitted to enforce such lien against the 
 homestead estate. 78 
 
 76 Lanoy v. Athol, 2 Atk. 446 ; Evertson v. Booth, 19 Johns. Ch. 486 ; 
 Cheesebrough v. Milliard, 1 Johns. Ch. 412; Warren V. Warren, 30 
 Vt. 530; Eeilly v. Mayor, 12 N. J. Eq. 55; Baine v. Williams, 10 Smed. 
 & M. 113; Ingelhart v. Crane, 42 111. 261; Swigert v. Bk. of Ky., 17 B. 
 Mon. 285; Miami Ex. V. U. S. Bank, Wright (Ohio) 249; Conrad v. 
 Harrison, 3 Leigh, 532; Bk. of S. C. v. Mitchell, Rice Eq. 389; Marr 
 r. Lewis, 31 Ark. 203, 25 Am. Rep. 553. So, if a mortgagee, has a 
 superior lien to that of a judgment creditor, he will be compelled to 
 resort first to the fund on which he alone has a lien. Hall v. Stevenson, 
 19 Oregon, 153; Cheesebrough v. Milliard, 1 Johns. Ch. (N. Y.) 409. 
 And the converse of this rule is also enforced, in favor of the mort- 
 gagee, if a judgment creditor has other security. Robison's App. 117 Pa. 
 628; Bank v. North, 4 Johns. Ch. (N. Y.) 370. 
 
 "Mitchleson v. Smith (Neb.), 44 N. W. Rep. 871; Horton v. Kelly, 
 40 Minn. 193; McCreery v. Schaffer, 26 Neb. 173. 
 
 78 Horton V. Kelly, 40 Minn. 193; McCreery v. Schaffer, 26 Neb. 
 426
 
 CH. XI.] REMEDIES INCIDENT TO MORTGAGES. 290 
 
 173. The doctrine of marshalling only applies between creditors. And 
 between debtor and creditor the right does not exist. A mortgagor 
 cannot deprive the mortgagee of his right to proceed either on the debt, 
 or against the land. Rogers r. Myers, 68 111. 92. And if the mort- 
 gage covers both homestead and other property, the mortgagor cannot 
 compel the mortgagee to resort first to the other security, to save the 
 homestead. Plain v. Roth, 107 111. 588. See, generally, for late cases, 
 on marshalling assets, between mortgagees and others. 2 Amer. & Eng. 
 Dec. in Eq. 429. 
 
 427
 
 PART II. 
 
 EXPECTANT, EXECUTORY AND EQUITABLE 
 INTERESTS. 
 
 CHAPTER XII. REVERSIONS. 
 
 XIII. REMAINDERS. 
 
 XIV. USES AND TRUSTS. 
 
 XV. EXECUTORY DEVISES. 
 
 XVI. POWERS. 
 
 XVII. INCORPOREAL HEREDITAMENTS. 
 
 XVIII. LICENSES.
 
 CHAPTER XII. 
 
 " REVERSION." 
 
 SECTION 291. Definition. 
 
 292. Reversion Assignable and devisable. 
 
 293. Reversion Descendible to whom. 
 
 294. Dower and curtesy in reversions. 
 
 295. Rights and powers of the reversioner. 
 
 291. Definition. A reversion is that estate which re- 
 mains to an owner of land after he has conveyed away a 
 particular estate. It is a vested estate of future enjoyment, 
 the possession of which is postponed until the determination 
 of the estate granted. There is always a reversion as long 
 as the entire fee has not been exhausted. Thus, after any 
 number of successive estates for life or for years, there is 
 still a reversion left in the grantor. So also is there a re- 
 version after an estate-tail, although there was none after 
 the fee conditional at common law, which the statute "de 
 donis " converted into an estate-tail. 1 But where one grants 
 a base or determinable fee, since what is left in him is 
 only a right to defeat the estate so granted upon the hap- 
 pening of a contingency, there is no reversion in him. That 
 is, he has no future vested estate in fee, but only what is 
 called a naked possibility of reverter, which is incapable of 
 alienation or devise, although it descends to his heirs. 2 But 
 
 i 2 Washburn on Real Prop. 737, 738; 2 Cruise Dig. 335. 
 
 22 Cruise Dig. 335; 2 Washburn on Real Prop. 739; Ayres V. Falk- 
 land. 1 Ld. Raym. 326; Cook r. Bisbee, 18 Pick. 529; The State v. Brown. 
 27 N. J. L. 20. Carving out a part of the estate held by the grantor 
 gives rise to the terms " particular " estate, as applied to that granted, 
 and the right reserved to have the rest of the estate " revert," on the 
 termination of the "particular" estate denominates this latter estnto 
 the "reversion." Williams Real Prop. 241; 2 Bl. Com. 165; 1 TifTnry 
 Real Prop. Sec. 113, p. 270. 
 
 431
 
 291 REVERSION. [PART n. 
 
 where the particular estate is an estate upon limitation and 
 more particularly where it is limited by the life of a person, 
 or by a contingent event, which may cause it to last during 
 some life, the estate will not be such a determinable or quali- 
 fied fee as does not admit of a reversion, although the estate 
 be granted to A. and his heirs. Thus, a limitation to A. 
 and his heirs during the widowhood of B. or the residence 
 of C. in Rome, would be a life-estate, and there would be a 
 reversion left in the grantor instead of a possibility of re- 
 verter. 3 A grant to A. and his heirs, as long as a tree 
 stands, would likewise leave a reversion in the grantor. 4 But 
 a grant to A. and his lieirs until B. returns from Rome 
 would be a fee upon limitation, and since it is doubtful if the 
 contingency will happen, and if it does not, the estate be- 
 aomes an absolute fee in the grantee, the grantor has only 
 a possibility of reverter, and not a reversion. 5 And a re- 
 version arises where there is a particular estate created by 
 operation of law, as in the case of dower or curtesy. Not 
 only is there a reversion in the case of an owner of the fee 
 parting with a portion of it, but it exists, whatever may be 
 
 3 1 Prest. Est. 442; The State v. Brown, 27 N". J. L. 20; McKelway v. 
 Seymour, 29 N. J. L. 329. 
 
 * 1 Prest. Est. 440; 1 Washburn on Real Prop. 90; Com. V. Hackett, 
 102 Pa. St. 505. 
 
 s 1 Washburn on Real Prop. 90; 1 Prest. Est. 441. 
 
 8 It is so far a reversion that if the reversioner should die during 
 the life-time of the tenant in dower or curtesy, the wife or husband, 
 respectively, of the reversioner would have no dower or curtesy in such 
 lands. Dos de dote peti non debet. Cook v. Hammond, 4 Mason, 485; 
 Geer v. Hamblin, 1 Me. 54; Dunham v. Osborn, 1 Paige Ch. 634; 
 Reynolds v. Reynolds, 5 Paige Ch. 161; Safford v. Safford, 7 Paige 
 Ch. 259; Co. Lit. 31 a; 4 Kent's Com. 65; 2 Washburn on Real Prop. 
 740. But if the widow of the ancestor has not had her dower set out, 
 when the widow of an heir demands an assignment, the latter widow 
 may have her dower set out in all the property, subject, however, to 
 be subsequently defeated pro tanto by the assignment of the dower to 
 the senior widow. 1 Cruise Dig. 164; Hitchens v. Hitchens, 2 Vern. 
 405; Greer v. Hamblin, supra; Elwood V. Klock, 13 Barb. 50; Robin- 
 son r. MiUer, 2 B. Mon. 288. 
 432
 
 CH. XII.] REVERSION. 292 
 
 the estate, whether in tail, for life, or for years, out of which 
 a less estate has been carved. 7 
 
 292. Reversion assignable and devisable. The reversion 
 may be assigned or devised as freely as an estate in posses- 
 sion subject, of course, to the prior particular estate. It 
 cannot be conveyed by the common-law conveyance of feoff- 
 ment, since the reversioner could not deliver actual seisin. 
 But it may be transferred by grant in the nature of a release, 
 or by any of the deeds operating under the Statute of Uses. 8 
 But the statement that a reversion cannot be conveyed by 
 feoffment, is correct only when the particular estate already 
 granted is a freehold. If the particular estate is less than a 
 freehold, as an estate for years, the actual seisin is in the 
 reversioner, and he may make a conveyance of his estate by 
 feoffment. 9 At common law it was necessary to obtain the 
 consent of the tenant of the particular estate for the effective 
 transfer of the reversion. This was called the attornment, a 
 mutual obligation upon tenants and reversioner which pre- 
 
 7 2 Washburn on Real Prop. 739 ; 2 Cruise Dig. 335, 336. vVliere land 
 is deeded, upon condition that it shall be used for a specific purpose, or 
 revert to the grantor, upon the failure to so use it, it reverts to the 
 grantor. Green's Admr. V. Irvine (Ky. 1902), 66 S. VV. Rep. 278. A 
 deed conditioned upon the support and maintenance of the grantor, 
 during life, is a conditional deed, on breach of which, the land re- 
 verts to the grantor, in Missouri. McAnaw v. Tiffin, 143 Mo. 667, 45 
 S. W. Rep. 656. A deed conditioned for the support of the grantor 
 unless apt words of reverter are used, on breach of the condition, con- 
 veys the fee. Studdard v. Wells, 120 Mo. 25, 25 S. W. Rep. 201. For 
 reverter of land acquired by condemnation, on abandonment, see, 
 Remey v. Iowa Cent. Co., 89 N. W. Rep. 218. But where 'the legal 
 effect of the condemnation is to vest the absolute title to the land in 
 the company, no reverter, on abandonment, results. Wood r. Mobile 
 Co., 107 Fed. Rep. 846, 47 C. C. A. 9. For reversions in grants for 
 eleemosynary or religious purposes, where grant provides for reverter 
 on failure to use land for such purposes, see, Gen. Ass. Presby. Ch. t;. 
 Alexander, 40 S. W. l!ep. 503; Green f. O'Connor (R. I.), 19 L. R. A. 
 262; Wills v. Davidson, 54 N. J. Eq. 659, 35 L. R. A. 113. 
 
 2 Washburn on Real Prop. 738. 
 
 Co. Lit. 48 b ; Williams on Real Prop. 242. 
 
 28 433
 
 293 REVERSION. [PART n. 
 
 vailed under the feudal system. But it was abolished by 
 statute in the reign of Queen Anne. 10 But a reversion cannot 
 be granted to commence in the future, any more than an 
 estate in possession, except by way of a future use. 11 The 
 reversion might be carved up into two or more estates, but 
 each estate must be so assigned that it shall take effect in 
 possession immediately after the determination of the pre- 
 ceding estate. 
 
 293. Reversion descendible to whom. Under the com- 
 mon-law maxim of descent, seisina facit stipitem non jus, 
 the reversion can only descend to the heirs of the person 
 who was last seised in fact. If a person grants a life estate 
 or other freehold estate less than a fee, his heirs could inherit 
 the reversion, but if they should in turn die before the de- 
 termination of the particular estate of freehold, only those 
 who can trace their descent as heir from the grantor could in- 
 herit from such heirs. 12 If, however, the reversion is assigned 
 or devised, or is sold under levy of execution, such purchaser 
 
 10 2 Washburn on Real Prop. 738 ; Williams on Real Prop. 247. This 
 statute is generally recognized as in force in the United States. See 
 Burden r. Thayer, 13 Mete. 78; Coker V. Pearsall, 6 Ala. 542. 
 
 11 2 Washburn on Real Prop. 738; 1 Prest. Est. 89; 2 Cruise Dig. 336; 
 Jones v. Roe, 3 T. R. 93. A conveyance of a tract of land to one, for 
 life, with remainder to grantor's heirs, leaves an absolute power of 
 disposition in the grantor, as to the reversion, since he is the first 
 reversioner, in order of time. Akers V. Clark, 184 111. 136, 56 N. E. 
 Rep. 296. An execution sale of property, while in possession of the 
 grantee, who was to use the land for a specific purpose, with reversion 
 to the grantor on failure to so use it, does not divest the reversion, in 
 Arkansas. Pettitt V. Norman Institute, 67 Ark. 430, 55 S. W. Rep. 
 485. A mortgage by a lessor on his reversionary interest in the de- 
 mised premises,- imposes no limitation on his rights. Bradley & Co. 
 V. Peabody Coal Co., 99 111. App. 427. A lessee purchasing a mort- 
 gage of the fee, can hold, possession, as against a reversioner, until 
 payment of his mortgage, as he is considered a mortgagee in possession, 
 in New York. Barson v. Mulligan, 73 N. Y. S. 262, 66 App. Div. 486. 
 
 122 Washburn on Real Prop. 740, 741; 4 Kent's Com. 385; Williams 
 on Real Prop. 100, 101; 3 Cruise Dig. 142; Cook v. Hammond, 4 Mason, 
 467; Miller v. Miller, 10 Mete. 393. 
 434
 
 CH. XII.] REVERSION. 294 
 
 or devisee would constitute a new stock of descent, and his 
 heirs would take the reversion as if it had been an estate in 
 possession. 13 The above rule only applies where the particu- 
 lar estate is a freehold. If it be a term of years as will be 
 more fully explained in treating of remainders the tenant 
 holds the possession as a quasi-bailee of the reversioner, the 
 latter is deemed to be actually seised; and so also would be 
 his heirs before the expiration of the estate for years. 14 But 
 this common-law doctrine has been abrogated in most, if not 
 all, the States of this country, so that it possesses at present 
 but little practical importance. 15 
 
 294. Dower and curtesy in reversions and remainders. 
 The wife or husband of the reversioner will not have, respec- 
 tively, dower or curtesy in the reversion unless the particu- 
 lar estate is less than a freehold, or unless it determines dur- 
 ing the life-time of the reversioner. The vesting of these es- 
 tates requires actual seisin in the husband or wife, and, as 
 has been shown in the previous paragraph, the reversioner is 
 not actually seised when the particular estate is a freehold. 10 
 
 is 1 Washburn on Real Prop. 741; Williamson Real Prop. 100, 101; 4 
 Kent's Com. 386. But see, Pettitt v. Norman Inst., 67 Ark. 430, 55 
 S. W. Rep. 485. 
 
 K Co. Lit. 15 a; 2 Washburn on Real Prop. 741. 
 
 152 Washburn on Real Prop. 741. See post, Chapter on Title by De- 
 vise. 
 
 i2 Washburn on Real Prop. 741; 2 Cruise Dig. 338; 4 Kent's Com. 
 39; Brooks v. Everett, 13 Allen, 458; Robinson v. Codman, 1 Sumn. 
 130; Dunham v. Osborn, 1 Paige Ch. 634; Durando P. Durando, 23 N. 
 Y. 331; Shoemaker V. Walker, 2 Serg. & R. 556; Arnold v. Arnold, 8 
 B. Mon. 202. And if the husband sells his reversion during the con- 
 tinuance of the prior freehold estate, the wife loses all possibility of 
 acquiring the dower right by the determination of the particular es- 
 tate. Gardner v. Greene, 5, R. I. 104; Apple v. Apple, 1 Head, 348. 
 As to remainders. Watson r. Watson, 150 Mass. 84. Under the New 
 York statute, dower will not attach to a contingent remainder, ex- 
 pectant upon a life estate. Ward r. Ward, 131 Fed. Rep. 946; Jack- 
 son v. Walters, 83 N. Y. S. 696, 86 App. Div. 470. The statute of 
 limitations would not begin to run against heirs of a married woman, 
 
 435
 
 295 REVERSION. [PART n. 
 
 295. Rights and powers of the reversioner. It may be 
 generally stated, that the reversioner has all the powers and 
 rights which the tenant of an estate in remainder would have. 
 He can maintain his action for waste against strangers as 
 well as against the tenant of the particular estate, and has a 
 right to receive rents accruing from such tenant ; and so will 
 his assignee, if the rent is not reserved or granted away to 
 another. 17 The same doctrine of merger applies, if the par- 
 ticular estate and the reversion become united in the same per- 
 son. And if the tenant of the particular estate is disseised, it 
 will have no more effect upon the reversion than it would 
 have upon a remainder. For any further explanation of the 
 rights and powers of reversioners, reference may be had to the 
 chapter on Remainders. The subject is there presented in de- 
 tail as to remainder-men, and as the rights and powers of re- 
 mainder-men and reversioners are identical, it requires but 
 one statement of them. 18 
 
 in favor of a grantee of the husband, under a deed to his estate, until 
 the death of the husband and the consequent end of his estate by 
 curtesy. Wilson v. Frost, 186 Mo. 311, 85 S. W. Rep. 375. See, also, 
 Dickinson V. Bank, 111 111. App. 183; Ousler v. Robinson (Ark. 1904), 
 80 S. W. Rep. 227. In Illinois, dower will not attach to a remainder, 
 unless the particular estate terminates during coverture. Kirkpatrick 
 V. Kirkpatrick, 197 111. 144, 64 N. E. Rep. 267. A vested fee-simple 
 estate in remainder is such " property belonging to the wife," as 
 to give her husband, on her death without issue, a life estate, as ten- 
 ant by curtesy, under the Maryland statute. Snyder V. Jones, 99 Md. 
 693, 59 Atl. Rep. 118. 
 
 IT Co. Lit. 143 a; 2 Washburn on Real Prop.. 742-744; Jesser v. Gif- 
 ford, 4 Burr. 2141; Simpson V. Bowden, 33 Me. 549; Livingston v. 
 Hay wood, 11 Johns. 429; Burden v. Thayer, 3 Mete. 76; Wood v. Griffin, 
 46 N. H. 239; Ripka V. Sergeant, 7 Watts & S. 9. See ante, Sees. 137, 
 148, 149. 
 
 is See post, chap. XIII. Apart from the difference in the manner, 
 in which the remainder and the reversion , are created, Mr. Williams 
 says: "A remainder chiefly differs from a reversion in this, that 
 between the owner of the particular estate and the owner of the re- 
 mainder (called the remainder-man) no tenure exists. They both de- 
 rive their estates from the same source, the grant of the owner in fee 
 simple ; and one of them has no more right to be lord than the other." 
 436
 
 CH. xn.j REVERSION. 295 
 
 Williams on Real Prop. 250. Until actual entry for breach of a 
 condition, the grantee of an estate upon condition holds the legal title 
 as against the reversioner. Little Falls Water Power Co. v. Mahan, 69 
 Minn. 253, 72 N. W. Rep. 69; Donnelly f. Eastes, 94 Wis. 390, 69 N. 
 W. Rep. 157. The remedy for the enforcement of the grantor's right. 
 to recover possession, on breach of a condition subsequent, in a deed, 
 is at law and not in equity. Mourat v. Seattle and C. R. Co., 16 
 Wash. 84, 47 Pac. Rep. 233. A reversioner, entitled to re-enter on 
 breach of a condition subsequent, cannot re-enter after a conveyance 
 of his interest. Lewis v. Lewis, 76 Conn. 586, 57 Atl. Rep. 735. The 
 owner of the reversion is entitled to rents only from the death of the 
 life tenant and the burden is on him to show the termination of the 
 life estate, in a suit for rents due him. McKee f. Dail (Tenn.), 1 
 Tenn. Ch. 689. For cause of action for damages for injury to the 
 reversion, from acts amounting to waste, see Palmer v. Young, 108 
 HI. App. 252; Champ Spring Co. v. Roth Tool Co. (Mo. 1903), 77 
 S. W. Rep. 344. Injury must be to inheritance to give reversioner 
 right to sue. Watson v. Harrigan, 112 Wis. 278, 87 N. W. Rep. 1079. 
 
 437
 
 CHAPTER XIII. 
 
 REMAINDERS. 
 
 SECTION I. Of remainders in general and herein of vested 
 
 remainders. 
 
 II. Contingent remainders. 
 III. Estates within the rule in Shelley's Case. 
 
 SECTION I. 
 
 OP REMAINDERS IN GENERAL AND HEREIN OF VESTED REMAINDERS. 
 
 SECTION 296. Nature and definition of remainders. 
 
 297. Kinds of remainders. 
 
 298. Successive remainders. 
 
 299. Disposition of a vested remainder. 
 
 300. Relation of tenant and remainder-man. 
 
 301. Vested and contingent remainders further distinguished 
 
 Uncertainty of enjoyment. 
 
 302. Same Remainder to a class. 
 
 303. Same After the happening of the contingency. 
 
 304. Cross remainders. 
 
 296. Nature and definition of remainders. It will have 
 been already observed from the preceding pages, that at 
 common law the only mode of transferring freehold estates in 
 possession was by a ceremony known as livery of seisin, and 
 that there could be but one actual seisin, which always ac- 
 companied the freehold estate in possession. 1 The livery of 
 seisin being a manual delivery of possession, and the title 
 passing in prcesenti by virtue of such delivery, it is but a nat- 
 ural consequence that, according to the common law, no free- 
 hold estate can be created to commence in futuro, conveying 
 
 iSee ante, Sec. 24. 
 438
 
 CH. XIII.] REMAINDERS. 296 
 
 a present title to the same. We have seen, though, in the pre- 
 ceding chapter on Reversions, that an estate in possession less 
 than a fee may be granted, leaving a reversion in the grantor, 
 which he could subsequently assign by deed of grant. 2 The 
 difficulty experienced at common law in creating future es- 
 tates lay in the fact, that they had no mode of conveyance 
 which did not operate by transmutation of possession. It was 
 necessary that immediate possession should accompany the 
 creation or transfer of the title. 3 In fact, livery of seisin 
 was nothing more than the delivery of the possession of a free- 
 hold. If, therefore, a particular estate in possession had al- 
 ready been granted, or was conveyed at the same time with 
 the future estate, the obstacle in the way of creating the lat- 
 ter was removed. If the particular estate was granted by a 
 prior deed, the future estate was a reversion in the grantor 
 which could afterward be conveyed by grant. But if it was 
 granted at the same time as the future estate, and by the same 
 deed, the future estate was called a remainder. A remainder 
 is, therefore, a future estate in lands, which is preceded and 
 supported by a particular estate in possession, which takes ef- 
 fect in possession immediately upon the determination of the 
 prior estate, and which is created at the same time and by the 
 same conveyance. 4 It follows, therefore, from this definition, 
 that a remainder can only be acquired by purchase ; it never 
 vests by descent. 5 Nor can a remainder be supported by an 
 
 2 See ante, Sec. 292. 
 
 s See post, Sees. 535, 536, 357 ; 2 Washburn on Real Prop. 536, 538, 
 539; Co. Lit. 217 a. 
 
 4 2 ,Washburn on Real Prop. 539 ; 2 Bla. Com. 163 ; Co. Lit. 143. See 
 also Doe v. Considine, 6 Wall. 474; Brown v. Lawrence, 3 Cush. 390; 
 Booth v. Terrell, 16 Ga. 20. 
 
 6 Dennett v. Dennett, 40 N. H. 504; see Langdon v. Strong, 2 Vt. 
 254. In the same manner, there must be a conveyance of the prior 
 particular estate. A man cannot grant a remainder, reserving to him- 
 self a prior estate for life. The grant, if it took effect at all, would 
 create in the grantee a springing use and not a remainder. Bissell 0. 
 Grant, 35 Conn. 297. See also post, Chap, on Springing Uses, Chapter 
 XIV. 
 
 439
 
 296 REMAINDERS. [PART II. 
 
 estate which is created by operation of law. The future es- 
 tate, which vests in the heirs upon the determination of the 
 widow's dower, or the husband's curtesy, is not a technical 
 remainder, but a reversion. If the future estate does not 
 take effect in possession immediately upon the expiration of 
 the prior or particular estate (the prior estate is called 
 particular, derived from the latin particula, part or parcel), 
 it is not a remainder, and if it cannot take effect as an as- 
 signed reversion, a future use or an executory devise which 
 will be explained hereafter 7 it will be void, and the con- 
 veyance will fail. 8 But the refusal of a devisee to accept a 
 particular estate will not defeat that devise of the remainder- 
 man. The remainder-man would in such a case take from the 
 death of the testator, the devise of the particular estate being 
 treated as having lapsed. Nor will the disaffirmance by an 
 infant tenant for life have any effect upon the validity of the 
 remainder. But if the particular estate is void, through some 
 quality annexed to the estate in its inception as, by entry of 
 the grantor for condition broken, the remainder will also fail, 
 if it cannot then take effect in possession. 9 
 
 6 Greer V. Hamblin, 1 Me. 54 ; Cook V. Hammond, 4 Mason 485, 
 Reynolds v. Reynolds, 5 Paige, 167; Safford v. Safford, 7 Paige Ch. 
 259; Robinson v. Miller, 2 B. Mon. 288; Elwood v. Klock, 13 Barb. 50; 
 Hitchens f. Hitchens, 2 Vern. 405; 1 Cruise Dig. 164; 4 Kent's Com. 
 65, Co. Lit. 31 a. See ante, Sec. 291. 
 
 ? See post, Sees, on Contingent, Springing and Shifting Uses in 
 Chapter XIV. 
 
 82 Washburn on Real Prop. 540; 1 Prest. Est. 217; Williams on Real 
 Prop. 249-251; Wilkes V. Lion, 2 Cow. 333. A remainder cannot 
 exist without a particular estate to support it and if the particular 
 estate expires before the remainderman is qualified to take possession, 
 the remainder expires with it. Accordingly, a remainder limited to 
 the grandchildren of testator or their issue, with a cross remainder 
 to testator's son and his issue, is defeated by the death of all the re- 
 maindermen and their issue, prior to the determination of the par- 
 ticular estate, and it is held, in Iowa, that the title to the land would 
 revert to the heirs of the testator. Archer v. Jacobs, 125 Iowa 467, 
 101 N. W. Rep. 195. 
 
 2 Washburn on Real Prop. 555; Co. Lit. 298 a; Thompson v. Leach. 
 
 440
 
 CH. XIH.] REMAINDERS. 297 
 
 297. Kinds of remainders. Remainders are divided into 
 two classes, vested and contingent. A vested remainder is a 
 present vested right to the future enjoyment of the land. In 
 a vested remainder only the possession is postponed. It is, 
 therefore, a vested and executory estate. 10 A contingent re- 
 mainder is one in which both the title and the possession are 
 postponed. The vesting of the title depends upon the hap- 
 pening of an uncertain event which may not happen at all, or 
 at a time subsequent to the determination of the particular 
 estate. The possession depends upon the vesting of the title, 
 and as the estate must take effect in possession immediately 
 upon the expiration of the particular estate, it will fail if the 
 contingency does not occur before that event. 11 And at 
 
 2 Salk. 576; Prescott V. Prescott, 7 Mete. 141; Macknet v. Macknet, 24 
 N. J. Eq. 277; Lawrence V. Hebbard, 2 Bradf. 250; Goodall v. Mc- 
 Lean, 2 Bradf. 306; Yeaton V. Roberts, 28 N. H. 459; Augustus V. 
 Seabolt, 3 Mete. 161; Archer v. Jacobs, 125 Iowa 467, 101 N. W. Rep. 
 195. But tbe statement in the text, that the entry of the grantor, for 
 the breach of a condition annexed to the particular estate, would de- 
 feat the remainder, applies only to common-law remainders. A limi- 
 tation to take effect upon the breach of a condition may be valid as an 
 executory devise or as a shifting use. See ante, Sec. 211, and post, 
 Sees. 313, 391, 392. 
 
 ioCroxall r. Sherard, 5 Wall. 288; Doe v. Considine, 6 Wall. 474; 
 Brown r. Lawrence, 3 Cush. 390; Blanchard V. Blanchard, 1 Allen 227; 
 Hill r. Baton, 106 Mass. 578; Leslie V. Marshall, 31 Barb. 564; Moore V. 
 Lyons, 25 Wend. 119; Gourley u. Woodbury, 42 Vt. 395. Mr. Preston's 
 definition is : " It is the present capacity of taking effect in possession, 
 if the possession were fallen." 1 Prest. Est. 70. 
 
 11 2 Washburn on Real Prop. 542 ; Doe v. Morgan, 3 T. R. 764 ; Pure- 
 foy v. Rogers, 2 Lev. 39; Hawley v. James, 5 Paige Ch. 466; Moore 0. 
 Lyons, 25 Wend. 144; Williamson V. Field, 2 Sandf. Ch. 553; Price V. 
 Sisson, 13 N. J. L. 176; Archer v. Jacobs, 125 Iowa 467, 101 N. W. Rep. 
 195. There have been various tests suggested for determining, whether 
 in a given case a future estate is a vested or contingent remainder, and 
 the more common one is that given by Mr. Fearne, viz. : " The present ca- 
 pacity of taking effect in possession, if the possession were to become 
 vacant, . . . distinguishes a vested remainder from one that is con- 
 tingent." Feame Cont. Rem. 216; 2 Cruise Dig. 200. This was a relia- 
 ble test, if it was understood that it mattered not in what way or by 
 what means the prior particular estate is determined, whether by for- 
 
 441
 
 297 REMAINDERS. [PART II. 
 
 common law a remainder to a child en venire sa mere would 
 be defeated if it was not born before the termination of the 
 particular estate. This rule, however, has now in most of the 
 States been changed by statute, and an unborn child after 
 conception is considered as sufficiently a living being, in order 
 to take an estate. 12 A contingent remainder is both contin- 
 gent and executory. As long as there is some one in being 
 who can -take and hold the actual seisin, no violation of the 
 common-law rule, which requires an ascertained tenant of the 
 prcecipe, will be committed, whether the title to the remainder 
 vests immediately or whether its vesting is postponed to some 
 future time. 13 In this way is the validity of a contingent 
 
 feiture, merger, or disseisin, or by the natural termination of the estate. 
 But since at the present day, in most of the States, the defeat of the 
 prior estate in any other way, except by this natural termination, will 
 not avoid the contingent remainder depending upon it, this test is no 
 longer reliable and another must be found. The following is suggested 
 as a reliable test, viz., the present capacity to convey an absolute title 
 to the remainder. This test would, however, give rise to a qualification, 
 where the remainder is to a class, and some of the class are not yet 
 in esse. The remainder, so far as those in esse are concerned, is held 
 to be vested (see post, Sec. 302), while such remaindermen could not 
 convey an absolute title, thus excluding the after-born members of the 
 class from their right in the remainder, although they can convey an 
 absolute title to their oicn interest in it. In New York, Michigan, Wis- 
 consin, Minnesota, California, Dakota, it is provided by statute that no 
 contingent remainder shall fail if the contingency does not occur before 
 the termination of the particular estate, and that such remainder shall 
 take effect in possession after the termination of the prior estate, when- 
 ever the contingency happens. This practically abolishes the distinction' 
 between contingent remainders and executory devises. 
 
 12 Reeve v. Long, 1 Salk. 227 ; 4 Kent's Com. 249. Statutes, changing 
 the common law in this respect, are to be found in Arkansas, California, 
 Georgia, Maryland, Massachusetts, Missouri, New York, Ohio, Virginia 
 and Wisconsin. 2 Washburn on Real Prop. 595; Crissfield f. Storr, 36 
 Md. 129, 11 Am. Rep. 480; Cowles V. Cowles (Conn.), 13 Atl. Rep. 414. 
 
 is If the estate, limited by way of a remainder, is an equitable estate, 
 instead of a legal estate, no failure of the remainder would result from 
 a termination of the particular estate, before the happening of the con- 
 tingency, for the seisin would, in contemplation of law, be in the trustee 
 and would not be effected by the particular estate. Fearne Con. Rein. 
 303; 1 Tiffany, Real Prop., Sec. 123, p. 293. 
 442
 
 CH. XIII.] REMAINDERS. 297 
 
 remainder explained. The contingency may be the birth of 
 the person who is to take, as well as any other uncertainty. 
 But for the support of a contingent remainder the particular 
 estate must be a freehold; while in the case of a vested re- 
 mainder the particular estate may be only a term of years. 
 The reason for this difference lies in the fact that the tenant 
 for years has only a chattel interest, the possession of which 
 he acquires as a quasi-bailee of the tenant in reversion. He 
 does not take, and cannot hold, the actual seisin in his own 
 right. If the remainder is contingent there is no definitely 
 ascertained person who can take the legal seisin, which, to- 
 gether with the actual possession of the tenant for years, as 
 his bailee, will constitute the complete and lawful seisin to the 
 land. 14 An apparent exception to this rule requiring the 
 particular estate to be a freehold, is met with in limitations 
 like the following : An estate is given to A. for eighty years, 
 if he shall so long live, with a contingent remainder at his 
 death. This has been held to be a good contingent re- 
 mainder, since it is so extremely unlikely that A. will live 
 out the term that it may be considered as practically an estate 
 for life. No particular number of years is required to sup- 
 port this kind of limitation, and it is apprehended that the 
 required number would vary in each case according to the 
 chances of life of the tenant of the particular estate, a greater 
 number being required if the tenant of the particular estate 
 is a young person than if he is old. 15 Any particular estate 
 
 i* Co. Lit. 143 a ; Fearne Cont. Rem. 285 ; 2 Washburn on Real Prop. 
 538, 543; Williams on Real Prop. 252; Doe V. Considine, 6 Wall. 474; 
 Brodie v. Stephens, 2 Johns. 289; Corbet v. Stone, T. Raym. 151; 2 Bla. 
 Com. 171. In New York, Michigan, Wisconsin, and Minnesota, it is pro- 
 vided by statute that a contingent remainder may be limited to take 
 effect at the termination of an estate for years. 2 Washburn on Real 
 Prop. 594, 595. And in very many of the States terms for years of long 
 duration are now declared by statute to have all the properties of a 
 freehold estate. 1 Washburn on Real Prop. 463. And see, as to remain- 
 ders in equitable estates, where the seisin is in a trustee, supra. 
 
 i 2 Cruise Dig. 243 ; 2 Washburn on Real Prop. 585 ; Napper v. Sand- 
 ers, Hutt. 118; Lethieullier r. Tracy, Amb. 204; . o. 3 Atk, 774; Doe 
 
 443
 
 298 REMAINDERS. [PART II. 
 
 for years is sufficient if the contingent remainder is not a 
 freehold. In that case the seisin is still in the grantor. 16 But 
 the particular estate must in no case be less than an estate for 
 years. A tenancy at will, at sufferance, or from year to year, 
 will not support a remainder ; such estates are too uncertain as 
 to their duration. 
 
 298. Successive remainders. As long as the entire fee is 
 not granted away, there may be any number of estates limited 
 .in remainder, following one after another, provided they are 
 so granted that one will vest in possession immediately upon 
 the termination of the preceding remainder. If any time be 
 allowed to elapse between their vesting in possession, the es- 
 tates cannot take effect as remainders. Thus the conveyance 
 may be to A. for life or for years, to B. for life or years, to C., 
 and so on indefinitely, provided no one is given the fee in re-> 
 mainder. 17 As soon, however, as the fee is assigned there 
 being nothing in the nature of an estate left in the grantor 
 he can create no more remainders. It is, therefore, a cardinal 
 rule that no remainder can be limited after a fee ; or, in other 
 words, where there is no reversion there can be no remainder. 18 
 Such a limitation could, however, take effect as an executory 
 devise, if it appeared in a will. 19 But if the first devisee has 
 an absolute power of disposal, and the limitation over is to 
 operate only upon what is left at his death, the limitation 
 cannot take effect either as a contingent remainder or as an 
 
 v. Ford, 2 E. & B. 970 ; Weale v. Lower, Pollexf. 67 ; Fearne Cont. Rem. 
 20-22; 1 Prest. Est. 81. 
 
 "2 Cruise Dig. 244; Fearne Cont. Rem. 285; Corbet v. Stone, T. 
 Raym. 151; 2 Washburn on Real Prop. 585, 586. 
 
 IT 2 Washburn on Real Prop. 555. 
 
 is 1 Eq. Cas. Abr. 185 ; 2 Cruise Dig. 203 ; Atty.-Gen. v. Hall, Fitzg. 
 314; McLean v. McDonald, 2 Barb. 534; Jackson v. Delancy, 13 Johns. 
 557; Bowman v. Lobe, 14 Rich. Eq. 271. 
 
 i Doe v. Glover, 1 C. B. 448; Nitingale v. Burrell, 15 Pick. 104, 111; 
 Andrews v. Roye, 12 Rich. 544; Marks v. Marks, 10 Mod. 423; Purefoy 
 V. Rogers, 2 Wms. Saund. 388 a, note; Hatfield r. Sueden, 42 Barb. 65; 
 8. c. 54 N. Y. 285; Brightman v. Brightman, 100 Mass. 238. 
 444
 
 CH. XIII.] REMAINDERS. 298 
 
 executory devise. 20 A careful analysis of these cases will, 
 however, reveal the fact that in most of them the first limi- 
 tation has been enlarged into a fee, under the operation of the 
 rule in the law of powers (see post, chapter XVI, on Powers), 
 that an unlimited power of disposal annexed to a devise gen- 
 eral of the estate without words of limitation, will enlarge 
 the estate devised into a fee, or an estate in fee is expressly 
 given, and in either case the limitation over is precatory in- 
 stead of being mandatory. Where the prior limitation is ex- 
 pressly for life, or the limitation over is explicit and manda- 
 tory, not in the nature of a request, that the devisee in 
 prcBsenti shall leave what he has not disposed of to the per- 
 sons, it will not only be a good limitation over, but, if the 
 prior limitation is an estate for life or any other estate less 
 than a fee, it will be a vested remainder. 21 There must be a 
 
 zoide v. Ide, 5 Mass. 500; Ramsdell v. Ramsdell, 21 Me. 288; Jones 
 V. Bacon, 68 Me. 34, 28 Am. Rep. 1; Smith v. Bell, 6 Pet. 68; Sears 
 V. Russell, 8 Gray 100; Burbank v. Whitney, 24 Pick. 146; Hale V. 
 Marsh, 100 Mass. 468; Jackson v. Bull, 10 Johns. 19; Jackson V. Robins, 
 15 Johns. 169; 8. c. 16 Johns. 568; McKenzie's Appeal, 41 Conn. 607, 
 19 Am. Rep. 525 ; Newland V. Newland, 1 Jones L. 463 ; McRee's Admrs. 
 V. Means, 34 Ala. 349 ; Doe v. Stevenson, 1 C. B. 448 ; Bourn V. Gibbs, 
 1 Russ. & M. 615; Rona v. Meier, 47 Iowa 607, 29 Am. Rep. 493; Out- 
 land V. Bowen (Ind.), 17 N. E. Rep. 281; Giles v. Auslow, 128 111. 187; 
 O'Boyle V. Thomas, 116 Ind. 243; McClellan v. Larcher, 45 N. J. Eq. 17; 
 Griswold V. Warner, 51 Hun 12; Leggett v. Firth, 53 Hun 152; Roden- 
 fels V. Schumann, 45 N. J. Eq. 383. The statement in the text was fol- 
 lowed by the Supreme Court of Missouri, in an able opinion by Ch. Jus. 
 Gantt, after a review of the leading cases cited above, in Cornwall r. 
 Wulff, 148 Mo. 559, et sub. See also, 4 Kent's Com. (12 ed.) 270; 
 Brown v. Rogers, 125 Mo. 398; Van Home v. Campbell, 100 N. Y. 287; 
 Foster v. Smith, 156 Mass. 379; Fisher v. Wister, 154 Pa. St. 65; 
 Wolfer v. Humner, 144 111. 554; Howard v. Canersi, 109 U. S. 725; 2 
 Redfield Wills 278. But see, for critcism of Cornwall v. Wulff, supra, 
 in separate opinion of Marshall, J., Walton V. Drumtra, 152 Mo. 489. 
 
 21 Gibbins v. Shepard, 125 Mass. 541 ; Burleigh v. Clough, 52 N. H. 
 267, 13 Am. Rep. 23; Mandlebaum v. McDonnell, 29 Mich. 78, 18 Am. 
 Rep. 61; Joslin f. Rhoades, 150 Mass. 301; Mitchell V. Knapp, 54 Hun 
 500; Peckham v. Lego, 57 Conn. 553; Von Axte v. Fisher, 117 N. Y. 401; 
 Wells v. Leeley, 47 Hun 109; Stevens v. Fowler (N. J.), 19 Atl. Rep. 
 
 445
 
 298 REMAINDERS. [PART II. 
 
 power to dispose in any case, in order that the estate of tenant 
 for life may be enlarged into a fee. The tenant cannot claim 
 a fee, because the will provides that "all of the estate re- 
 maining" at her death, shall go to her children. The tenant 
 nevertheless takes only a life estate. 22 The remainder has 
 under such circumstances been held to be contingent.- 3 In 
 many of the States a remainder can now be limited to take 
 effect after a fee or in abridgment of the preceding estate. 
 It is also true, that no remainder can be limited after a fee, 
 even though the fee be base or qualified, as in the case of a 
 fee upon condition. There is left in the grantor after such an 
 estate only a possibility of reverter, which cannot be assigned, 
 either as a reversion or as a remainder.'- 4 But if the prece- 
 dent estate is an estate upon limitation terminating upon the 
 happening of a contingency, which must happen, the grantor 
 is held to have a reversion, and not a mere possibility, and 
 hence a remainder can be limited to take effect after such an 
 estate. 25 And so, also, where a remainder is given to trustees 
 and their heirs, since the duration of the trustee's estate is 
 always limited by the requirements and necessities of the 
 trust, if the performance of the trust does not require a 
 
 777; Park's Admr. v. Am. Home Missionary Soc. (Vt.), 20 Atl. Rep. 
 107; Crozier v. Bray, 120 N. Y. 366; Miller's Admr. v. Potterfield 
 (Va.), 11 S. E. Rep. 486; Pritcharo f. Walker, 22 111. App. 286; s. c. 
 121 111. 221; Sanborn, 62 N. H. 631; Lewis v. Pitman (Mo.), 14 S. W. 
 Rep. 52; Glover r. Reid (Mich.), 45 N. W. Rep. 91; Jenkins V. Comp- 
 ton (Ind.>, 23 N. E. Rep. 1091; Cashman's Estate, 28 111. App. 346; 
 Kibler v. Huver, 10 N. Y. S. 375; Hood v. Haden, 82 Va. 588; Mumo 
 f. Collins, 95 Mo. 33; Thomas v. Wolford, 49 Hun 145; Walker . 
 Pitchard, 121 111. 221; Harbison V. James, 90 Mo. 411; Spencer v. Strait, 
 38 Hun 228. 
 
 zaCresap v. Cresap, 34 W. Va. 310; Stone V. Littlefield (Mass.), 24 
 X. E. Rep. 55)2. See Walton r. Drumtra, 152 Mo. 504, and dissenting 
 opinion of Marshall, J., in Cornwall f. Wulff, 148 Mo. 559. 
 
 23 Simpson v. French, 6 Dem. Sm. (N. Y.) 108. 
 
 - 2 Washburn on Real Prop. 540, 541; Doe v. Selby, 2 B. & C. 930; 
 Willion r. Burkley, Plowcl. 235; Seymour's Case, 10 Rep. 97; Wimple V. 
 Fonda, 2 Johns. 288; Buist r. Dawes, 4 Strobh. Eq. 37. 
 
 25 Com. V. Hackett, 102 Pa. St. 505. See ante, Sec. 291. 
 446
 
 CH. XIH.] REMAINDERS. 299 
 
 fee, and the estate is therefore determinable, a remainder may 
 be limited to take effect after the determination of the trust- 
 estate. This constitutes an exception to the general rule, and 
 is only applicable to remainders in trust. 26 Estates are some- 
 times created to take effect after, or in derogation of the pre- 
 ceding estate in fee, but they are not common law remainders. 
 At common law such estates are impossible; they are called 
 conditional limitations, and operate under the Statute of Uses 
 as a shifting use, or under the Statute of Wills as an execu- 
 tory devise. 27 So also was it impossible to create a remainder 
 after a fee conditional at common law. But wherever that es- 
 tate has been converted into a fee tail, a remainder is possible, 
 as has been explained in the chapter on Reversions. 28 
 
 299. Disposition of a vested remainder. A vested re- 
 mainder is capable of alienation by any mode of conveyance 
 which does not require livery of seisin, and even with livery, 
 where the particular estate is not a freehold, and the consent 
 of the tenant to entry upon the land for that purpose is ob- 
 tained. It may be devised, or assigned in whole or carved up 
 into a number of smaller estates, and may be conveyed upon 
 
 2 Lethieullier v. Tracy, 3 Atk. 774. A vested remainder which is to 
 take effect on the termination of a trust estate, under the Connecticut 
 statute passes to a trustee in bankruptcy, under Bank Law, July, 1898. 
 Loomer v. Loomer, 76 Conn. 522, 57 Atl. Rep. 167. See post, Sec. IV, 
 Chapter XIV. 
 
 2*2 Washburn on Real Prop. 544, 545; 1 Prest. Est. 91; Cogan V. 
 Cogan, Cro. Eliz. 360; Proprietors Brattle Sq. Church v. Grant, 3 Gray 
 149; Horton v. Sledge, 29 Ala. 495. See post, Chapter XIV, Sec. Ill, 
 and Chapter XV. 
 
 as 2 Washburn on Real Prop. 546; Wilkes f. Lion, 2 Cow. 393; Hall v. 
 Priest, 6 Gray 18. The remainder after an estate tail was liable to be 
 defeated by the common recovery, instituted by the tenant in tail for 
 the purpose of cutting off the entail. Williams on Real Prop. 253; 1 
 Spence Eq. Jur. 144; 2 Prest. Est. 460; Page v. Hayward, 2 Salk. 570. 
 The remainder after an estate tail has this further peculiarity, that the 
 estate tail will not merge in it if the two should come together in the 
 tenant in tail. Wiscot's Case, 2 Rep. 61; Roe v. Baldwere, 5 T. R. 110; 
 Poole v. Morris, 29 Ga. 374. 
 
 447
 
 300 REMAINDERS. [PART II. 
 
 trusts, or made to vest upon some future contingency, pro- 
 vided no estate is thereby made to commence in futuro, with- 
 out a preceding estate to support it.- If the remainder-man 
 dies without having disposed of his estate, the remainder will 
 descend to his heirs, in the same manner as an estate in pos- 
 session. 30 
 
 300. Relation of tenant and remainder-man. It is said 
 that there is no tenure existing between the remainder-man 
 and the tenant of the particular estate. But while that may 
 be true as a general rule, a life tenant cannot set up against 
 the remainder-man any superior title which he may have ac- 
 quired by purchase. A release to the life tenant enures to the 
 
 29 2 Washburn on Real Prop. 553 ; 1 Prest. Est. 75 ; Pcarce r. Savage, 
 45 Me. 101; Blanchard v. Brooks, 12 Pick. 47; Fearne Cont. Rem. 216; 
 Williams on Real Prop. 252; Bunting v. Speck, 41 Kan. 424; Swett v. 
 Thompson, 149 Mass. 302; Loreng V. Carnes, 148 Mass. 223. In Ala- 
 bama, New York, Michigan, Wisconsin, Minnesota, Indiana, Iowa, Miss- 
 issippi, Missouri, Texas, Virginia, Kentucky, Illinois, a legal estate may 
 be created by deed to commence in the future, without a preceding estate 
 to support it. 2 Washburn on Real Prop. 592, 593. In those States, 
 therefore, a future estate may be disposed of in such a manner, that it 
 is to vest in the purchaser at some future day, and in the meanwhile 
 remain vested in the original remainder-man. Independently of statute, 
 an estate of freehold may be created to commence in the future, with- 
 out being supported by a preceding estate, but the future estate in that 
 case would be a springing use and not a legal estate until the Statute of 
 Uses executed it. See post, Sees. 355, 543. A vested remainder passes 
 to a trustee in bankruptcy, under an adjudication under the Federal 
 law of 1898. In re Haslett, 116 Fed. Rep. 680; In re Mosier, 112 Fed. 
 Rep. 138. A vested remainder is the subject of an execution sale for 
 debts, in Kentucky. Roach v. Dance, 80 S. W. Rep. 1097. There can 
 be no partition between life tenant and remainder-men, in Virginia. 
 Turner r. Barraud, 46 S. E. Rep. 318; Stansberry v. Inglehart, 9 
 Mackey 134. See also, Smith v. Runnell, 97 Iowa 55, 65 N. W. Rep. 
 1002; Love v. Blauw, 61 Kan. 496, 59 Pac. Rep. 1059, 48 L. R. A. 257; 
 Seiders v. Giles, 141 Pa. St. 93, 21 Atl. Rep. 514. 
 
 so King f. Scoggin, 92 N. C. 99; Van Camp t?. Fowler, 59 Hun 311; 
 Lepps r. Lee (Ky.), 16 S. W\ Rep. 346. It is not essential that the 
 remainder-man take actual possession of the property, on the death of 
 the life tenant, in order to complete his title to the property. Morrison 
 r. Fletcher (Ky. 1905), 84 S. W. Rep. 584. 
 448
 
 CH. XIII.] REMAINDERS. 300 
 
 remainder-man. 31 The tenant can have no claim on the lat- 
 ter for any improvements made by him. If the improvement 
 is not of such a nature as to give him the right of removal 
 under the law of fixtures, it becomes a part of the soil, and 
 passes with it to the remainder-man upon the termination of 
 the particular estate. 32 The tenant cannot do anything to 
 defeat a vested remainder; a disseisin of the tenant affects 
 the remainder in no manner. Nor can the possession of the 
 tenant be deemed adverse to the remainder-man, either for 
 the purpose of preventing the latter from conveying his in- 
 terest, or with a view to defeat it under the Statute of Limi- 
 tations, unless the possession be continued after the termina- 
 tion of the particular estate. The Statute of Limitations does 
 not begin to run, until the remainder takes effect in posses- 
 sion. 33 And if the tenant or a stranger commits waste upon 
 the land, or does any injury to the inheritance, the remainder- 
 si Co. Litt., Sees. 452, 453, 67 b; Allen v. DeGroodt, 98 Mo. 159; 
 Whitney v. Slater, 30 Minn. 103; Stewart v. Matheny (Miss.), 5 So. 
 Rep. 387; Pruett V. Hallen, 73 Ala. 369. 
 
 322 Washburn on Real Prop. 554; Elwes r. Mawe, 3 East 38; s. c. 2 
 Smith's Ld. Cas. 212; Madigan v. McCarthy, 108 Mass. 376, 11 Am. 
 Rep. 371; Ford v. Cobb, 29 N. Y. 344; Tifft v. Horton, 53 N. Y. 377, 13 
 .Am. Rep. 537; Thurston v. Dickinson, 2 Rich. Eq. 317; Elam v. Park- 
 hill, 60 Texas 581; see ante, Sec. 16. Nor can the tenant of the particu- 
 lar estate enter into any agreement in respect to the property, which 
 will bind the remainder-man. Hill V. Roderick, 4 Watts & S. 221. 
 
 332 Washburn on Real Prop. 555; see Grout f. Townsend, 2 Hill 554; 
 Crawley v. Blackman, 81 Ga. 775; Doherty v. Matsell, 54 N. Y. Super. 
 Ct. 17, 119 N. Y. 646, 23 N. E. Rep. 994. A right of action for the re- 
 covery of land by a remainder-man does not generally accrue, until the 
 death of the life tenant, as no estate is vested until that event. Turner 
 v. Hause, 199 111. 464, 65 N. E. Rep. 445. But see, under Mo. statute, 
 Utter f. Sidman, 170 Mo. 284, 70 S. W. Rep. 702. The statute of 
 limitations does not begin to run against a remainder-man, until the 
 termination of the particular estate. Joyner v. Futrell, 136 N. C. 301, 
 48 S. E. Rep. 649; Woodrief v. Wester, 136 N. C. 162, 48 S. E. Rep. 5'78; 
 Collins v. Lumber Co. (Ark. 1905), 84 S. W. Rep. 1044; Thomas v. 
 Black, 113 Mo. 66; Kesterson v. Bailey, 80 S. W. Rep. 97; Charleston 
 Ry. Co. v. Reynolds, 69 S. C. 481, 48 S. E. Rep. 476; Graham v. Staf- 
 ford, 171 Mo. 692, 72 S. W. Rep. 507. 
 
 29 449
 
 300 REMAINDERS. [PART II. 
 
 man has his own action for damages against the wrong-doer/ 1 
 Upon the termination of the particular estate, the property 
 passes to the remainder-man with all its appurtenances, and 
 if the building had been destroyed by fire during the con- 
 tinuance of the particular tenancy, the insurance money 
 would go with the land to the remainder-man. 35 
 
 3* Chase v. Hazelton, 7 N. H. 176; Van Deusen v. Young, 29 N. Y. 9; 
 Brown V. Bridges, 30 Iowa 145. But no one, whose reversionary interest 
 is a contingent remainder or an executory devise, can maintain a legal 
 action of waste against the tenant of the particular estate, although his 
 interest in the estate may be protected by injunction from destruction 
 by the waste of the particular tenant. Hunt V. Hall, 37 Me. 363. And, 
 unless changed by statute, the remainder-man can maintain the tech- 
 nical action of waste, only when he has the immediate estate in re- 
 mainder. If there is an immediate estate in remainder between him and 
 the tenant of the particular estate, he could only maintain an action on 
 the case in the nature of waste. Williams V. Bolton, 3 P. Wms. 298 ; Co. 
 Lit. 218 b, n. 122; 1 Washburn on Real Prop. 154. But the distinction 
 between trespass and case has been abolished in many of the States, and 
 certainly in all the States which have adopted the code of New York. 
 And for acts of waste by strangers, the tenant of the particular estate 
 may be held liable to the remainder-man or reversioner, if the waste re- 
 sults through his negligence in protecting the estate from the trespasses 
 of strangers. Co. Lit. 54 a ; Attersol V. Stevens, 1 Taunt. 198 ; Fay v. 
 Brewer, 3 Pick. 203 ; Wood V. Griffin, 46 N. H. 237 ; Cook v. Champlain 
 Trans. Co., 1 Denio 91; Austin v. Hudson R. R. Co., 25 N. Y. 341. A 
 life tenant who is bound to discharge a mortgage on the entire estate to 
 protect his interest, is entitled to be subrogated to the extent of the 
 debt chargeable to the remainder, as against the remainder-man. Wild- 
 er's Exec. V. Wilder (Vt. '1903), 53 Atl. Rep. 1072. Where a life tenant 
 persistently refuses and fails to pay taxes upon the property, the re- 
 mainder-man is entitled to a receiver to collect so much of the rent as 
 may be necessary to pay the taxes. Sage v. Gloversville, 60 N. Y. S. 
 791, 43 App. Div. 254. Although the life tenant should pay taxes ac- 
 cruing during his life, if the taxes are unpaid, the remainder-man will 
 take the estate charged with the lien of such taxes, on his death, in 
 Kentucky. Joyes v. Louisville, 82 S. W. Rep. 432* Morrison v. Fletcher, 
 84 S. W. Rep. 548. A purchase of the life estate at a tax sale, by 
 remainder-men, is upheld, in Iowa, as against other remainder-men. 
 Crawford v. Meis, 123 Iowa 610, 99 N. W. Rep. 186, 66 L. R. A. 154. 
 
 SBClyburn v, Reynolds (S. C.), 9 S. E. Rep. 973. 
 
 450
 
 CH. Xin.] REMAINDERS. 301 
 
 301. Vested and contingent remainders further distin- 
 guished "Uncertainty of enjoyment. No uncertainty of en- 
 joyment will render the remainder contingent. The contin- 
 gent or vested character of the remainder is only determined 
 by the uncertainty, which attends the vesting of the right 
 to the estate. 36 But sometimes it is difficult to determine 
 whether the contingency refers to the enjoyment or to the 
 vesting of the title. Thus, in a devise to A. and B. for eight 
 years, remainder to the testator's executors until H. B. ar- 
 rives at twenty-one years, and when he should come of age, 
 then that he should enjoy the same to him and his heirs for- 
 ever. H. B. died during minority. It was held that only 
 the enjoyment was postponed to his arrival at majority, and 
 that the remainder was vested and descended to his heirs. 37 
 
 3 " The present capacity of taking effect in possession, if the pos- 
 session were now to become vacant, and not the certainty that the pos- 
 session will become vacant before the estate limited in remainder de- 
 termines, universally distinguishes a vested remainder from one that is 
 contingent." Fearne Cont. Rem. 216. See also, 4 Kent's Com. 202; 
 Croxall v. Shererd, 5 Wall. 288; Pearce v. Savage, 45 Me. 101; Brown 
 V. Lawrence, 3 Gush. 390; Williamson v. Field, 2 Sandf. Ch. 533; Allen 
 v. Mayfield, 20 Ind. 293; Marshall v. King, 24 Miss. 90; In re Jennings, 
 1 N, Y. S. 565. 
 
 ST Boraston's Case, 3 Rep. 19; Manning's Case, 8 Rep. 187 b; Good- 
 title v. Whiteby, 1 Burr. 233; Tomlinson v. Dighton, 1 P. Wms. 17; Doe 
 v. Lea, 3 T. R. 41. See also, Doe v. Moore, 14 East 601; Furness 0. 
 Fox, 1 Cush. 134; Blanchard v. Blanchard, 1 Allen 223; Manice V. 
 Manice, 43 N. Y. 380; Kemp V. Bradford, 61 Md. 330; Johnes v. Beers, 
 57 Conn. 295; Hoover V. Hocver, 116 Ind. 498; Wedekind V. Hallenberg 
 (Ky.), 10 S. W. Rep. 368; Goebel v. Wolf, 113 N. Y. 405; Wills v. Wills, 
 85 Ky. 486; Dowling v. Reber, 65 Miss. 259; Shadden v. Hembree, 17 
 Ore. 14 ; Legwin v. McRee, 79 Ga. 430 ; Dorr v. Levering, 147 Mass. 530 ; 
 Goerlitz t'. Malawesjta, 56 Hun 120; Siddons v. Cockrell (111.), 23 N. E. 
 Rep. 586; Hamon v. Dyer (Ky.), 12 S. W. Rep. 774; Pond v. Allen, 15 
 R. I. 171; Myers v. Adler, 6 Mackey 515; Chaw v. Keller, 100 Mo. 362; 
 Kingman v. Harmon (111.), 23 N. E. Rep. 430; Schwartz's Appeal, 119 
 Pa. St. 337; Williams v. Williams, 73 Cal. 99; Davidson v. Bates, 111 
 Ind. 391; Davidson v. Hutchins (Ind.), 4 N. E. Rep. 106; Rhodes v. 
 Shaw, 43 N. J. Eq. 430; Craig v. Ambrose (Ga.), 4 S. E. Rep. 1; 
 Weatherhead v. Stoddard, 58 Vt. 623; Kouvalinka v. Geilbel, 40 N. J. 
 Eq. 443. Where a life estate is granted to a woman and remainder to 
 
 451
 
 301 REMAINDERS. [PART II. 
 
 Not only will the mere uncertainty of enjoyment not make the 
 remainder contingent, but the remainder will be a good 
 vested one, although it may be absolutely impossible for the 
 remainder-man ever to enjoy the possession of it. Thus a 
 grant to A. for one thousand years, remainder to B. for life ; 
 B. is sure to die before the natural expiration of A. 's estate, 
 but the remainder, nevertheless, is good, although it ends with 
 B.'s death. And if the remainder to B. were in fee, although 
 he would be able to enjoy it, he could convey it to others or 
 devise it, and if he died without making a disposition of it, it 
 would descend to his heirs. 38 So, also would this be the case 
 where the grant was to A. for life, remainder to B. during 
 the life of A. B. could only enjoy his remainder in the event 
 that A.'s estate was destroyed by forfeiture, escheat or mer- 
 ger, and it may not be defeated at all. Nevertheless, B.'s es- 
 tate is a vested remainder. But wherever the title vests only 
 upon the happening of a future contingency, whatever gen- 
 erally may be that contingency whether it be the birth of 
 the remainder-man or some collateral event the remainder 
 
 her children, such children as are living at the time of the grant take a 
 vested remainder. In re Haslett, 116 Fed. Rep. 680. Under the, Mis- 
 souri statute, converting all estates tail into life estates, all convey- 
 ances or devises to a grantee and the heirs of his body, passes a re- 
 mainder to such heirs, with life estate to the grantee. Tindall v. Tin- 
 dall, 167 Mo. 218, 66 S. W. Rep. 1092; Utter v. Sidman, 170 Mo. 284, 
 70 S. W. Rep. 702. A conveyance to a grantee for life, remainder to his 
 heirs, vests the title in a grandchild of such grantee, although both 
 parent and grandchild died before the grantee, as the remainder was 
 vested on birth of the grandchild and would vest in his father, on his 
 death, in Michigan, under statute of that State. Porter V. Osmon, 98 
 N. W. Rep. 859. A grant to the heirs of a life tenant, and, on fail- 
 ure of such, to the heirs of a living third person, creates a vested re- 
 mainder in the heirs of such life tenant, with a contingent remainder to 
 the heirs of such third person, in Minnesota. Minnesota Deb. Co. V. 
 Dean, 85 Minn. 473, 89 N. W. Rep. 848. 
 
 38 2 Washburn on Real Prop. 547; Williams on Real Prop. 252; Fearne 
 Cont. Rem. 216; Parkhurst v. Smith, Wiles 338; Williamson v. Field, 2 
 Sandf. 533; Manderson v. Lukens, 23 Pa. St. 31; Kemp v. Bradford, 61 
 Md. 330; Kennard V. Kennard, 63 N. H. 303. 
 452
 
 CH. XIII.] REMAINDERS. 301 
 
 is contingent, and there is no present vested right. And it 
 has been held by the New Hampshire courts that a grant to 
 A. for life, remainder after his death to B., would make the 
 remainder to B. contingent, since by the terms of the con- 
 veyance B. was only to take the estate after the death of 
 A., and A. 's estate may be defeated before its natural termina- 
 tion by forfeiture, or merger into the inheritance. 39 But this 
 view is generally rejected by the authorities, which hold that 
 an express and explicit reference to such a contingency is 
 necessary to make the remainder contingent. 40 And the same 
 
 89 Hall v. Nute, 38 N. H. 422; Hayes v. Tabor, 41 N. H. 521; Wil- 
 lett's Admr. v. Butter's Admr., 84 Ky. 317; Whittaker v. Whittaker, 40 
 N. J. Eq. 33. In Hall v. Xute, the devise was to Esther Tuttle, "to 
 hold as long as she lives a natural life; also the land which I have 
 given to Esther Tuttle as long as she lives, after her decease I give and 
 bequeath the same to my son, William Tuttle, as long as he lives a 
 natural life, and no longer; and after his decease, I give and bequeath 
 the same to his heirs and assigns." The court say. "William Tuttle, 
 under the devise, could not take the estate limited to him in remainder 
 until the death of Esther Tuttle. If her estate were destroyed during 
 life, by forfeiture, or by surrender and merger in the inheritance, the 
 remainder limited to William Tuttle could never vest in possession, 
 though he might survive his mother, because there would be no par- 
 ticular estate to support the remainder." The court rest their opinion 
 on the authority of Doe r. Holmes, 2 W. Bl. 777, in which the devise 
 was '* to J. S. for the term of his natural life, and after his decease to 
 the heirs male and. female of J. S." This was to be a contingent re- 
 mainder. But it is readily observed by the reader that the contingency 
 arose from the uncertainty of the remainder-men, being described as 
 the heirs of a living person. In White's Trustee v. White (Ky.), 7 S. 
 W. Rep. 26, the remainder was held to be contingent, where it was 
 granted to the children of life tenant surviving her and to the repre- 
 sentatives of such as may be dead. See also, to same effect, Overman tf. 
 Simo, 96 N. C. 451; Larmour r. Rich (Md.), 18 Atl. Rep. 702; Shanks 
 v. Mills, 25 S. C. 356; Roundtree r. Roundtree, 26 S. C. 450; Kinnan v. 
 Card, 4 Dcnio (X. Y.) 156; Byrnes v. Labagh, 38 Hun 523. But see,. 
 contra, Boykin r. Boykin, 21 S. C. 513. 
 
 "4 Kent's Com. 202; Carter v. Hunt, 40 Barb. 89; Williamson v. 
 Field, 2 Sandf. Ch. 533; Moore f. Lyons, 25 Wend. 144; De Vaughn v. 
 McLeroy, 82 Ga. 687; Mercantile Bank v. Ballard, 83 Ky. 431; Mitchell 
 v. Knapp, 54 Hun 500; Brewer v. Cox (Md.), 18 Atl. Rep. 146; Delany 
 v. Middleton (Md.) 19 Atl. Rep. 146; Pond t?. Allen, 15 R. I. 171; 
 
 453
 
 , 
 301 REMAINDERS. [PART II. 
 
 ruling has been adopted by a case in New Hampshire. 41 
 Wherever there is a doubt as to whether a remainder is vested 
 or contingent, the courts always incline to construe it a vested 
 estate. 42 Thus, in a devise to A. for life, remainder to the 
 surviving children of J. S., there being a doubt whether the 
 surviving refers to the death of the testator, or of A., and 
 
 Hudgens v. Wilkins, 77 Ga. 555; Legwin r. McRee (Ga.), 4 S. E. Rep. 
 863; Elkins v. Carsey (Tom.), 3 S. W. Rep. 828; Chasey V. Gowdry, 
 43 N. J. Eq. 95; Railey v. Milam (Ky.), 5 S. W. Rep. 367; McDaniel 
 u. Allen, 64 Miss. 417; Curtis V. Fowler (Mich.), 33 N. W. Rep. 804; 
 Harris v. Carpenter, 109 Ind. 640; Gibbens v. Gibbens, 140 Mass. 102; 
 Olmstead v. Dunn, 72 Ga. 850; Fussey v. White, 113 HI. 637. The 
 presumption is always in favor of the remainder being vested, and es- 
 pecially in devises, the remainder will not be held to be contingent, 
 unless it is the apparent intention of the testator that the remainder 
 shall be contingent. If there is an express declaration that the re- 
 mainder-man shall take the estate at the natural termination of the 
 particular estate, and at no other time, the remainder will be neces- 
 sarily contingent. See Sinton v. Boyd, 19 Ohio St. 57, 2 Am. Rep. 469; 
 In re Paton (N. Y.), 18 N. E. Rep. 625; Hawley v. Peavey, 128 111. 
 430; Appeal of Com. Title Ins. Co., 126 Pa. St. 223; Mercantile Trust, 
 etc., Co., V. Brown (Md.), 17 Atl. Rep. 937; Willett's Admr. 84 Ky. 
 317; Bates V. Gillett (111.), 24 N. E. Rep. 611; Robinson v. Female Or- 
 phan Asylum, 123 U. S. 702; Ferguson v. Thomasson (Ky.), 9 S. W. 
 Rep. 714; Allsmiller v. Freutchenicht (Ky.)", 5 S. W. Rep. 746; Reich- 
 ard's Appeal, 116 Pa. St. 232; Crane's Appeal, 106 Pa. St. 232; Holmes' 
 Appeal, 116 Pa. St. 232; Kurst V. Paton, 4 Denio (N. Y.) 180; Teets 
 V. Weise, 47 N. J. L. 154. But it is so extremely unlikely that the tes- 
 tator, in a will like the New Hampshire case, could have contemplated 
 the possible forfeiture or merger of the peculiar estates, and have in- 
 tended that the remainder-man should not take in such an event, that 
 such a construction would be maintained only upon the strongest proof 
 that such was' the intention of the testator. See Porter v. Osmon, 98 
 N. W. Rep. 859; Minnesota Deb. Co. v. Dean, 85 Minn. 473, 89 N. W. 
 Rep. 848. . 
 
 41 Crosby v. Crosby, 64 N. H. 77. 
 
 42 Doe V. Perryn, 3 T. R. 484; Doe V. Prigg, 8 B. & C. 231 ; Duffield V. 
 Duffield, 1 Dow. & C. 311; Croxall v. Shererd, 5 Wall. 287; Fay V. Syl- 
 vester, 2 Gray 171; Doe V. Provoost, 4 Johns, 61; Moore v. Lyons, 25 
 Wend. 119; Wills v. Wills (Ky.), 3 S. W. Rep. 900; Scofield v. Olcott, 
 120 111. 362; Anthony v. Anthony, 55 Conn. 256. But see Ewing v. 
 Winters (W. Va.), 11 S. E. Rep. 718; Atmore V. Walker, 46 Fed. Rep. 
 429. 
 
 454
 
 CH. XIII.] REMAINDERS. 301 
 
 the latter construction would make the remainder contingent, 
 the court held that it referred to the death of the testator, and 
 that, therefore, the remainder was vested. 43 And very often a 
 remainder will be construed to be a vested estate upon condi- 
 tion subsequent, liable to be divested by the happening of a 
 contingency rather than to declare it a contingent remainder. 
 For example, a devise was made to E. & J. for their lives suc- 
 cessively, and after the death of the longest liver of them to 
 A. B., if he lived to attain the age of twenty-one years, but 
 if he died before that age, then over to C. B. It was held 
 that the remainder to A. B. was vested, but was liable to be 
 defeated by the death of A. B. during his minority. 44 The 
 same favor towards the construction of a remainder as vested 
 is displayed in the case where an estate in remainder is limited 
 to take effect in default of the exercise of a power of appoint- 
 
 Doe v. Prigg, 8 B. & C. 231; Smither r. Willock, 9 Ves. 233; Eld- 
 ridge v. Eldridge, 9 Gush. 516; Moore v. Lyons, 25 Wc-nd. 119; Harris 
 .v. Carpenter, 109 Ind. 540; Hoover v. Hoover, 116 Ind. 498; Bunting v. 
 Speek, 41 Kan. 424; King v. Trick (Pa.), 19 Atl. Rep. 951; Lombard 
 v. Willis (Mass.), 16 N. E. Rep. 737; Stone v. Lewis' Admr. (Va.), 5 
 S. E. Rep. 282; Vason V. Estes, 77 Ga. 352. But see contra, Roundtrec 
 v. Roundtree, 26 S. C. 450. 
 
 "Bromfield v. Crowder, 1 Bos. & P. N. R. 313; Doe v. Nowell, 1 M. 
 & S. 327 ; Johnson v. Valentine, 4 Sandf. 36 ; Maurice v. Maurice, 43 N. 
 Y. 380; Ross v. Drake, 37 Pa. St. 373; Bentley V. Long, 1 Strobh. Eq. 
 43; Phillips v. Phillips, 19 Ga. 261; In re Batione's Estate, 136 Pa. St. 
 307; Hills V. Barnard, 152 Mass. 67; Camp v. Cronkright, 59 Hun 488; 
 Lepps V. Lee (Ky.), 16 S. W. Rep. 346; Havens v. Seashore Law Co. 
 (N. J.), 20 Atl. Rep. 497; Kilgore v. Kilgore, 127 Ind. 276; Dodd v. 
 Winship, 144 Mass. 461; Gardner V. Hooper, 3 Gray 398; Dorling V. 
 Blanchard, 109 Mass. 176; McArthur v. Scott, 113 U. S. 340; Lenz v. 
 Prescott, 144 Mass. 505; Security Co. V. Hardenburgh, 53 Conn. 169; 
 Withers v. Sims, 80 Va. 651; Re Cogswell, 4 Denio (N. Y.) 248; Mead 
 v. Maben, 14 N. Y. 732. See contra, Sinton v. Boyd, 19 Ohio St. 51, 2 
 Am. Rep. 369. See Goldtree v. Thompson, 79 Cal. 613; Hudgens v. 
 Wilkins, 77 Ga. 555; Grossman's Exr., 1 N. Y. S. 103; Silvers V. Canary, 
 114 Ind. 129; Schwartz's Appeal, 119 Pa. St. 337; Churchman's Ap- 
 peal (Pa.), 12 Atl. Rep. 600; Strauss V. Rost, 67 Ind. 465; Chamber- 
 lain v. Young's Exr. (Ky.), 5 S. W. Rep. 380; In re Jobson, 44 Ch. D. 
 154; Wood v. Mason (R. I.), 20 Atl. Rep. 264. 
 
 455
 
 302 REMAINDERS. [PART II. 
 
 merit. Such a remainder has been held to be a vested re- 
 mainder, liable to be defeated by the exercise of the power. 45 
 
 302. Same Remainder to a class. The general rule is 
 that a remainder is contingent, if the persons who are to take 
 are not in esse, or are not definitely ascertained. But where 
 the remainder is limited to a class, some of whom are not in 
 esse, the remainder has repeatedly been held to be vested 
 liable, however, to open and let in those who are afterwards 
 born during the continuance of the particular estate. It is 
 questionable whether a simple limitation in remainder to a 
 class, as to children, will open to let in after-born chil- 
 dren, if there are some in esse who can take. And the 
 after-born children are in fact excluded from participation 
 in the remainder, unless the intention of the testator 
 or grantor is shown by the context to be otherwise. 46 But if 
 there is any circumstance connected with the grant or devise 
 which indicates such an intention on the part of the donor, it 
 can and will have that effect. Thus, in a devise to A. for 
 life, and at her death to her children, the remainder would 
 be vested in the children who are in esse at the testator's 
 death, and it will open and let in the children born afterwards 
 during the life of A., or during the continuance of her es- 
 tate. 47 But while remainders to children are generally held 
 
 45 Sandford v. Blake, 45 N. J. Eq. 247 ; De Vaughn v. McLeroy, 82 
 Ga. 687; Phillips v. Wood (R. I.), 15 Atl. Rep. 88; Mutual Life Ins. 
 Co. t?. Shipman, 109 N. Y. 19 ; Grosvenor V. Bowen, 15 R. I. 549 ; Welsh 
 . Woodbury, 144 Mass. 542; Scofield V. Olcott, 120 111. 362; Walker V. 
 Pritchard, 121 111. 221; Harbison V. James, 90 Mo. 411; Re McClyment, 
 16 Abb. N. C. 262; Hardy v. Clarkson, 87 Mo. 171. 
 
 46 Parker V. Glover, 42 N. J. Eq. 559. Where a remainder is granted 
 to take effect only on the death of the life tenant, then to go to the re- 
 mainder-men named, as a class, the vesting of the remainder cannot be 
 accelerated by a release of the life tenant, since it is impossible to de- 
 termine who would take the remainder, on her death. Rogers V. Trust 
 Co., 55 Atl. Rep. 679. 
 
 Doe v. Prigg, 8 B. & C. 231; Dod v. Perryn, 3 T. R. 484; Viner 
 v. Francis, 2 Cox 190- Doe v. Considine, 6 Wall. 475; Dingley v. Din- 
 456
 
 CH. XIII.] REMAINDERS. 303 
 
 to be vested as to those in being only liable to open and let in 
 after-born children, this is not always the case. If the re- 
 mainder is limited to children living at the death of the life 
 tenant, the remainder is contingent until the death of the life 
 tenant. This is so, although it may be provided that in the 
 event of the prior death of any of the children, the share of 
 such child or children should vest in his or their issue. The 
 issue would in that case take as purchasers, and not as heirs, 
 unaffected by any attempted conveyance of the remainder by 
 the deceased parent. 48 Those who are in esse do not take an 
 absolute vested estate. They cannot bar the rights of those 
 who are unborn by any conveyance they may make. Their 
 estate is vested, but is liable to be defeated pro tanto by the 
 subsequent birth of the other. And so strictly are the rights 
 of the unborn guarded, that a sale by the guardian of the 
 children already born under a decree of court was held not 
 to affect the title of the after-born children. 49 
 
 303. Same After the happening of the contingency. 
 But whatever distinction may exist between a vested and a 
 contingent remainder at their creation, they cease to be distin- 
 guishable when the uncertain event which rendered the re- 
 mainder contingent has happened. After that, the contingent 
 
 ley, 5 Mass. 535; Ballard v. Ballard, 18 Pick. 41; Moore v. Weaver, 16 
 Gray 307; Worcester v. Worcester,* 101 Mass. J32; Yeaton v. Roberts, 
 28 N. H. 466; Doe v. Provoost, 4 Johns. 61; Jenkins v. Freyer, 4 Paige 
 Ch. 47. See Millicamp v. Millicamp, 28 S. C. 125; Gourdin v. Deas (S. 
 C.), 4 S. E. Rep. 64; Surdam v. Cornell, 116 N. Y. 305; Loring f. 
 Carnes, 148 Mass. 223 ; Peckham V. Lego, 57 Ct. 553 ; Dulany V. Middle- 
 ton (Ind.), 19 Atl. Rep. 146; Farnam v. Farnam, 53 Conn. 261; Conger 
 v. Lowe (Ind.), 24 N. E. Rep. 889; Goodrich v. Pierce, 83 Ga. 781; Toole 
 v. Perry (Ga.), 7 S. E. Rep. 118; Cowles v. Cowles (Conn.), 13 Atl. 
 Rep. 414; Stockbridge r. Stockbridge, 145 Mass. 517; Irvin v. Clark, 98 
 N. C. 437 ; Ballentine V. Wood, 42 N. J. Eq. 552. 
 
 Acker v. Osborne, 45 N. J. Eq. 377; Dwight P. Eastman, 62 Vt. 
 398; but see Jones v. Beers, 57 Conn. 295; Kansas City Land Co. . 
 Hill, 3 Pickle 589; Rogers t?. Trust Co., 55 Atl. Rep. 679. 
 
 40 Adams v. Ross, 30 X. J. 513; Graham v. Houghtalin, 30 N. J. L. 
 558. 
 
 457
 
 304 REMAINDERS. [PART II. 
 
 remainder is vested, and has all the characteristics which it 
 would have had, if it had been vested ab initio. But the 
 vesting of a contingent remainder must take place at or before 
 the termination of the particular estate ; if it occurs after- 
 wards, the remainder fails, and the estate reverts to the 
 grantor or the testator's heirs, as the case may be. so 
 
 304. Cross-remainders. Where particular estates are 
 given to two or more in different parcels of land, or in the 
 same land in undivided shares, and the remainders of all the 
 estates are made to vest in the survivor or survivors, the 
 future estates are called cross-remainders. To explain by ex- 
 ample, an estate for life is given in undivided shares to A. 
 and B., remainder to the survivor and his heirs; or to A. and 
 B. in tail, remainder of A.'s estate, upon failure of issue, to 
 B., in fee, and remainder of B.'s estate, upon failure of issue, 
 to A. 51 In some cases, as in the first example, the limitations 
 resemble a joint-tenancy in point of effect, the doctrine of 
 survivorship being practically present. But in the case of 
 cross-remainders, the remainders are not destroyed by a par- 
 tition, nor is it necessary that they should have present in 
 them the four unities of time, title, estate and possession, so 
 essential in the creation of a joint-tenancy. Although it is 
 usually the case, yet it is not necessary that the particular es- 
 tates should be undivided shares in the same land ; and if they 
 are, that they should be equal shares. These estates, with 
 their remainders, may be interests in altogether different par- 
 cels of land. Cross-remainders may be limited by deed or by 
 
 so 1 Prest. Est. 484 ; 2 Washburn on Real Prop. 556 ; Doe v. Perryn, 3 
 T. R. 484; Doe v. Considine, 6 Wall. 475; Wendell v. Crandall, 1 
 Comst. 491; Rogers r. Trust Co., 55 Atl. Rep. 679. 
 
 si 2 Washburn on Real Prop. 556, 557 ; 4 Cruise Dig. 298 ; 1 Prest. Est. 
 94; Co. Lit. 195 b, Butler's note 1; 4 Kent's Com. 201; Rockwell V. 
 Swift (Conn.), 20 Atl. Rep. 200; Dowling v. Raber (Miss.), 3 So. Rep. 
 654; Gorham v. Betts (Ky.), 5 S. W. Rep. 465; Rowland v. Rowland, 
 93 N. C. 214; Simpson v. Cherry (S. C.), 12 S. E. Rep. 886; Dana V. 
 Murray, 122 N. Y. 604. 
 458
 
 CH. XIII.] REMAINDERS. . 304 
 
 will, and in a will they need not be by express limitation; 
 they may arise by implication. But in a deed, in conformity 
 with the general rule of construction of deeds, they can only 
 be created by express terms. 52 They may be vested or con- 
 tingent, and may be made to vest at any time, provided the 
 contingency is not to happen after the termination of the 
 particular estate. 53 They may be limited between two or any 
 greater number of persons ; 54 and they should be so created 
 that upon the vesting of a remainder it should carry, not 
 only the original estate of the tenant of the particular estate, 
 but also all other remainders which may have vested in him 
 and been transmitted to him from the others, whose particular 
 estates had previously terminated. 55 In fact, this is the most 
 reliable test by which to determine the existence of cross-re- 
 mainders, viz. : whether the entire estate, with all its limita- 
 tions, passes from one to another, at the termination of the 
 particular estate and death of each, until the whole estate 
 vests in the heirs of the survivor. 56 But if the grantor or 
 testator does not manifest an intention that the transfer of 
 one co-tenant's share to the survivor shall carry whatever in- 
 terests may have become vested in him through the previous 
 death of some other co-tenant, that will not be the result of 
 his death. Upon his death his original share of the estate will 
 
 52 Co. Lit. 195 b, note 82 ; Watson v. Foxon, 2 East 36 ; Doe v. Wors- 
 ley, 1 East 416; Cole v. Livingston, 1 Vent. 224; Cook v. Gerrard, 1 
 Wms. Saund. 186 n; Hall v. Priest, 6 Gray 18; Fenley v. Johnson, 21 
 Md. 117. 
 
 53 But this is subject to the qualification to be hereafter stated and 
 explained (see post, Sec. 312) that a contingent remainder must not be 
 too remote. The same rule applies to cross-remainders. Seaward r. 
 Willock, 5 East 206 ; Wood V. Griffin, 46 N. H. 235. 
 
 5< It was once doubted that cross-remainders could be limited to more 
 than two. Gilbert v. Witty, Cro. Jac. 656; Twisdin v. Lock, Ambl. 665 : 
 Wright V. Holford, Cowp. 31. But it has now been definitely settled 
 that there can be more than two cross remainder-men. Doe v. Webb, 1 
 Taunt. 233; Watson v. Foxon, 2 East 36; Doe v. Worsley, 1 East 416; 
 Hall v. Priest, 6 Gray 18; Fenby v. Johnson, 21 Md. 117. 
 
 s 2 Washburn on Real Prop. 557 ; Co. Lit. 105 b, note 82. 
 
 Doe v. Webb, 1 Taunt. 233; Fenby v. Johnson, 21* Md. 117. 
 
 459
 
 304 REMAINDERS. [PART II. 
 
 go to the survivor, but the share which came to him in re- 
 mainder on the death of some other co-tenant will pass to his 
 heirs at law as an ordinary estate of inheritance. 67 
 
 v. Hall, 26 S. C. 179. See Reynolds v. Crispin (Pa.), 11 
 Atl. Rep. 236. 
 460
 
 SECTION II. 
 
 CONTINGENT REMAINDERS. 
 
 SECTION 305. Nature and origin of contingent remainders 
 
 306. Classes of contingent remainders. 
 
 307. Alienation of contingent remainders. 
 
 308. Vested remainder after a contingent. 
 
 309. Same Such limitations in wills. 
 
 310. Alternate remainders in fee. 
 
 311. Restrictions on contingency Legality. 
 
 312. Same Remoteness. 
 
 313. Same Abridging the particular estate. 
 
 314. How contingent remainders may be defeated. 
 
 315. Same 1. By disseisin of particular tenant. 
 
 316. Same 2. By merger. 
 
 317. Same 3. By feoffment. 
 
 318. Same 4. By entry for condition broken. 
 
 319. Trustees to preserve. 
 
 320. Actions by remainder-men. 
 
 305. Nature and origin of contingent remainders. It has 
 been contended, with much show of reason, that the ancient 
 common law did not admit of the creation of any but vested 
 remainders. And until the reign of Henry VI no case ap- 
 pears upon record, in which they have been held to be valid 
 limitations. 68 In that reign it was held that in the convey- 
 ance to A. for life, remainder to the heirs of J. S., the re- 
 mainder was a good limitation, which remained contingent 
 
 8 2 Washburn on Real Prop. 560 ; Williams on Real Prop. 263. The 
 earlier authorities, on the contrary, are rather opposed to such a conclu- 
 sion. Williams on Real Prop. 264. Mr. Williams says that the reader 
 should be informed that the assertion is grounded only on the writer's 
 researches. The general opinion appears to be in favor of the antiquity 
 of contingent remainders (p. 263, note d), citing 3d Rep. of Real Prop. 
 Oomm'rs 23. 
 
 461
 
 8 305 CONTINGENT REMAINDERS. [PART II. 
 
 until the death of J. S., and was defeated if he did not die 
 during the life-time of A. The heirs of J. S. would take the 
 estate in fee at the death of A., as if they had been heirs of 
 A. 88 It was also involved in doubt, in early times, what be- 
 came of the fee while the remainder continued to be contin- 
 gent. Until the contingency happened, the contingent re- 
 mainder was deemed a mere possibility a chance of getting 
 an estate, rather than the estate itself. It was considered an 
 executory interest, the title to which only vested when the 
 contingency happened. Some of the older authorities held 
 that the title to the fee remained, to use their quaint expres- 
 sions, in nubibus, in gremio legis, etc. In other words, the 
 title is kept in abeyance while the remainder is contingent. 60 
 But the modern authorities are inclined to hold that it re- 
 mains in the grantor, and that he is not divested of the title 
 in remainder until the contingency arrives. 01 In conformity 
 with the older view of the nature of a contingent remainder, 
 it was formerly held that it was not capable of alienation, nor 
 could it be devised. 62 But it is now definitely settled that, al- 
 though the contingent remainder can only be considered as a 
 possibility, or, at best, only an estate in expectancy, 63 yet 
 there is a sufficient present right to it upon the happening of 
 the contingency, as to be capable of alienation and devise. 
 The conveyance of a contingent remainder will operate as an 
 estoppel or as an assignment in equity, unless such remainders 
 
 52 Washburn on Real Prop. 560, 561; 2 Bla. Com. 169-171; Williams 
 on Real Prop. 264. An estate which is limited to take effect either to 
 a dubious and uncertain person, or on a dubious or uncertain event, is 
 contingent and since a contingent remainder is only the chance of hav- 
 ing an estate, it cannot be said to be an " estate " in land. Taylor t>. 
 Adams, 93 Mo. App. 277. 
 
 eo Williams on Real Prop. 266; Co. Lit. 342 a ; 1 Prest. Est. 251; 2 
 Prest. Abst. 100-107. 
 
 ei Williams on Real Prop. 266; Co. Lit. 191 a, Butler's note 78; 
 Fearne Cont. Rem. 361; Waters V. Bishop, 122 Ind. 161. But see 4 
 Kent's Com. 259. 
 
 2 2 Washburn on Real Prop. 562 ; Williams on Real Prop. 268. 
 
 63 2 Washburn on Real Prop. 560; 1 Prest. Est. 75. 
 462
 
 CH. XIII.] CONTINGENT REMAINDERS. 305 
 
 are made alienable by statute. It is still the rule of law, in 
 the absence of a statute, that there can be no legal conveyance 
 of a contingent remainder. 64 But it was always possible for a 
 contingent remainder-man to release to one in possession. 
 The contingent remainder also descends to the heirs of the 
 remainder-man upon his death before the contingency, pro- 
 vided the contingency does not arise from the uncertainty of 
 the person who is to take the remainder. 65 Where the re- 
 mainder-man is uncertain, no grant or devise can be made 
 before the happening of the contingency which will have any 
 effect, either in law or equity. 66 
 
 < 1 Prest. Est. 76; 2 Cruise Dig. 333; Fearne Cont. Rem. 551; Rob- 
 ertson f. Wilson, 38 N. H. 48; Loring v. Eliot, 16 Gray 574; Knight r. 
 Paxton, 124 U. S. 552; Doe v. Oliver, 10 B. & C. 181; Roe v. Dawson, 3 
 Ld. Cas. Eq. 651; Roe v. Jones, 1 H. Bl. 33; Roe V. Griffiths, 1 VV. Bl. 
 606. This matter is now regulated by statute in New Jersey and other 
 States. Wilkinson . Sherman, 45 N. J. Eq. 413; Morse v. Proper, 82 
 Ga. 13; Taylor v. Stewart, 45 N. J. 352; Grillin v. Shepard, 40 Hun 355. 
 This common law rule, against the alienation of remainders, contingent, 
 has been abolished, in England, by 8 & 9 Viet., Ch. 10(5, Sec. 6. making 
 all future and contingent interests in real estate alienable. Irrespec- 
 tive of a definite statute upon the subject, it is held, in Missouri, that 
 the right of alienation exists. In Goodman v. Simmons (113 Mo. 130) 
 the Supreme Court held : " This rule of the common law seems incon- 
 sistent with the general scope of our statutes regulating the disposal of 
 real estate, and not in harmony with the genius and spirit of our insti- 
 tutions, which brooks no restraint upon the power of the citizen to 
 alienate any of his property. The spirit and genius of the feudal sys- 
 tem and the common law were exactly the reverse. And we do not 
 think this now almost obsolete common-law rule ought to obtain in this 
 State." 
 
 es 1 Prest. Est. 76-89 ; 4 Kent's Com. 262 ; Williams Real Prop. 
 277; Roe v. Griffiths, 1 W. Bl. 606; Lampet's Case, 10 Rep. 48 a; 
 Marks v. Marks, 1 Strange 132. See Van Camp v. Fowler, 59 Hun 
 311. 
 
 o 2 Washburn on Real Prop. 562. This arose from the practical in- 
 ability of a conveyance, when it is not ascertained who is the remainder- 
 man. But if a certain individual made a conveyance of the land by a 
 warranty deed, and he subsequently became the vested remainder-man, 
 his deed would certainly operate by way of an estoppel to bar him 
 of any claim to the remainder, as against his grantee. Walton v. 
 Follansbee, 131 111. 147; Stewart v. Neely (Pa.), 20 Atl. Rep. 1002. 
 
 463
 
 306 CONTINGENT REMAINDERS. [PART II. 
 
 306. Classes of contingent remainders. Contingent re- 
 mainders may be divided into two classes, the distinguishing 
 element being the character of the event, upon the happening 
 of which is made to depend the vesting of the remainder. 
 The first class, according to this classification, would include 
 all those remainders which are contingent, because the persons 
 who are to take are not ascertained, or are not in being. Such 
 would be remainders to the heirs of a living person or to an 
 unborn child. In the first case the remainder is contingent, 
 because nemo est hceres viventis; the heirs cannot be ascer- 
 tained until the death of the ancestor, and the remainder will 
 become vested only upon the death of that person. In the 
 second case, the remainder is contingent until the child is 
 born. 67 If the remainder is to a class, as to children, it will 
 vest in the first child born, subject to be opened upon the birth 
 of a second to let it in, and so on. If the particular estate 
 terminated after the birth of the first, the remainder would 
 vest completely in that child, free from the claims of any 
 child born thereafter. 68 The second class would include all 
 those remainders which are made to vest upon the happening 
 of a collateral event, and may be subdivided into those cases, 
 where the event is sure to happen, but it is uncertain whether 
 it will happen during the continuance of the particular es- 
 tate, and those, in which it is doubtful whether the collateral 
 
 87 The first class, according to this classification, corresponds to Mr. 
 Fearne's fourth class. Fearne Cont. Rem. 9; Richardson v. Wheat- 
 land, 7 Mete. 169; Moore v. Weaver, 16 Gray 307; Loring v. Eliot, 76. 
 572. See Harrison v f Jones, 82 Ga. 599; Preston v. Brant, 96 Mo. 
 552; Wallace v. Minor (Va.), 10 S. E. Rep. 423; Taylor v. Adams, 
 93 Mo. App. 277. A purchaser of a grantee of a life estate cannot com- 
 plain because the court has failed to adjudge that the possibility of 
 issue was not extinct in such grantee. Utter v. Sidman, 170 Mo. 284, 
 70 S. W. Rep. 702. 
 
 ss Doe v. Considine, 6 Wall. 477; Carver v. Jackson, 4 Pet. 90; 
 Olney V. Hull, 21 Pick. 311; Worcester v. Worcester, 101 Mass. 132; 
 Jennings v. Freyer, 4 Paige Ch. 47; Coursey v. Davis, 46 Pa. St. 25; 
 Adams v. Ross, 30 N. J. L. 513; Swinton v. Legare, 2 McCord Ch. 
 257. See ante, Sec. 302. 
 464
 
 CH. Xin.] CONTINGENT REMAINDERS. 307 
 
 event will happen at all. Thus in a grant to A. for life, re- 
 mainder to B. after the death of C., C. is sure to die, but it 
 remains doubtful whether he will die during the life-time of 
 A., which is necessary for the vesting of the remainder. An 
 example of the second subdivision would be a remainder to 
 B. upon C. 's return from Rome ; C. 's return from Rome is un- 
 certain; he may die there, in which event the contingent re- 
 mainder will never vest and will fail. 09 To these may be 
 added a third class, in which the event is not collateral, but 
 the happening of which is contingent, and not only causes 
 the remainder to vest, but also constitutes the natural ter- 
 mination of the particular estate. For example, an estate 
 to A. until B. returns from Rome, then over to C. ; since 
 B. may never return the remainder is contingent. In such 
 cases the remainder vests only at the time when it is to take 
 effect in possession. 70 This division into classes has been 
 criticised by different authorities, and has been declared to 
 involve a useless complication of details, 71 and it may be that 
 the only natural and necessary division is that given by Black- 
 stone, into two, viz. : where the person who is to take is 
 dubious, and where the event is uncertain. 72 But the presen- 
 tation of the minuter subdivisions at least exhibits the various 
 possible forms of contingent "remainders and the different 
 contingencies upon which they may be made to depend, and 
 for that reason the above classification is useful, if not neces- 
 sary. 
 
 307. Alienation of contingent remainders. The rule of 
 the common law, which prevented the alienation of a contin- 
 gent remainder, was changed in England, by statute (8 & 9 
 
 Mr. Fearne divides these cases into two classes, and they constitute 
 his second and third classes. Fearne Cont. Rem. 8; Washburn on Real 
 Prop. 564, 565. 
 
 702 Washburn on Real Prop. 563. This is Mr. Fearne's first class. 
 Fearne Cont. Rem. 5. 
 
 7i 4 Kent's Com. 208. 
 
 722 Bla. Com. 169. 
 
 30
 
 307 CONTINGENT REMAINDERS. [PART II. 
 
 Viet., Chap. 106, Sec. 6), providing that, ". . . A contin- 
 gent, an executory and a future interest and a possibility, 
 coupled with an interest in any tenements or hereditaments, 
 of any tenure, . . . whether immediate or future and 
 whether vested or contingent, . . . may be disposed of by 
 deed." And by statute in New York, Michigan, Minnesota 
 and Wisconsin, similar provisions have been adopted, making 
 all expectant estates alienable, in the same manner as estates 
 in possession. 73 A contingent remainder is not an estate in 
 land and hence is not within statutes providing for the con- 
 veyance of any estate in lands, since it is only the chance of 
 having an estate ; 74 but it is such an interest in lands as to 
 come within statutes authorizing the conveyance of any in- 
 terest in lands 75 and even in some States where no express 
 statutory provision can be found, changing the rule of the 
 common law, on account of the inconsistency of such rule with 
 the general scope of the law regulating the disposal of real 
 estate and the spirit of American institutions, which brooks 
 no restraint upon the power of the citizen to alienate his 
 property, the owner of a contingent remainder is held to have 
 the right of disposition 76 and the rule of the common law, 
 against the alienation of such remainders, is discarded, as a 
 " relic of the ancient feudal system." 7T In many States the 
 
 73 2 Washburn on Real Prop, Sec. 5, p. 267 ; In re Jackson's deed, 4 
 Keys (N. Y.) 569, Finch's Sel. Cas. Real Prop. 899. 
 
 74 Godman v. Simmons, 113 Mo. p. 131; Lackland v. Nevins, 3 Mo. 
 App. 335. A contingent remainder is held to be a proper subject of 
 alienation, in the following cases: Archer v. Jacobs, 125 Iowa 467, 101 
 N. W. Rep. 195; Dixon v. Bentley (N. J. Ch. 1905), 59 Atl. Rep. 
 1036. 
 
 75 Ante. idem. 
 
 76 \\ T e are pre-eminently a trading people ; our lands are our 
 greatest stock in trade and the whole tendency of our laws is to en- 
 courage, not to restrain their alienation. The spirit and genius of the 
 feudal system and the common law were exactly the reverse. And 
 we do not think this now almost obsolete common law rule ought 
 to obtain in this State." Godman V. Simmons, 113 Mo. 131; Lackland 
 r. Nevins, supra; Rogers v. Graham, 146 Mo. 352. 
 
 77 Williams, on Real Prop. 257. A contingent remainder is the sub- 
 466
 
 CH. Xin.] CONTINGENT REMAINDERS. 308 
 
 involuntary alienation of such interests is now provided for 
 by statute and sales or partition of contingent remainders are 
 authorized by the courts, to the same extent as similar dis- 
 positions of vested remainders. 78 
 
 308. Vested remainder after a contingent. Because the 
 first of two or more remainders is contingent, it does not 
 necessarily follow that the others must be contingent also. 
 The ulterior remainders are continfent only when the con- 
 tingency is made to apply to the vesting of the whole series 
 of limitations. But they may be so limited that the contin- 
 
 ject of alienation in Iowa and Missouri. McDonald v. Bank, 123 
 Iowa 413, 98 N. W. Rep. 1025; Hayes v. McReynolds, 144 Mo. 348. 
 But see contra, Smith's Admr. v. Smith- (Ky. 1904), 79 S. W. Rep. 
 223. And when the grant is an abuse of fiduciary relation, see, In re 
 Phillipp's Est., 205 Pa. 511, 55 Atl. Rep. 212. It is held, under the 
 Virginia statute, that a deed of general assignment, for benefit of 
 creditors, passes the grantor's interest in property held as a con- 
 tingent remainder. Wilson v. Langhorne, 102 Va. 631, 47 S. E. Rep. 
 871. A contingent remainderman is held capable of making a valid 
 mortgage on his interest, in Kentucky. Davis v. Wilson, 74 S. W. Rep. 
 696. 
 
 78 The Pennsylvania Act of April, 1853, providing for the sale of a 
 decedent's estate, so as to divest a contingent remainder, is a valid exer- 
 cise of legislative power and an order of sale of the Orphans Court, 
 made thereunder, d:vests the contingent remainder. In re Smith's Est., 
 207 Pa. 604, 57 Atl. Rep. 37. The mere fact that the owner of a 
 contingent remainder is an infant, will not prevent an order of sale 
 for such interest, under the New York statute. In re Asch, 78 N. Y. 
 S. 561, 75 App. Div. 486. A contingent remainder is the subject of 
 partition by decree of court, in Missouri. Reinders v. Koppleman, 68 
 Mo. 501; Preston v. Brandt, 96 Mo. 552; Hayes v. McReynolds, 144 
 Mo. 348. See, also, In re Clement, (N. J. Ch. 1904), 57 Atl. Rep. 724; 
 Brillhart v. Mish (Md. 1904), 58 Atl. Rep. 28; Springs v. Scott f 
 132 N. C. 548, 44 S. E. Rep. 116. A contingent remainder cannot be 
 partitioned in Kentucky or West Virginia. Berry v. Lewis, 82 S. W. 
 Rep. 252; Croston v. Male, 49 S. E. Rep. 136. A contingent re- 
 mainder cannot be sold at the suit of creditors of a possible remainder- 
 man, in Virginia. Howbert v. Cowthorn, 42 S. E. Rep. 683. See, 
 also, Taylor v. Taylor (Iowa 1902), 92 N. W. Rep. 71. A contingent 
 remainder is not the subject of execution sale, in Tennessee. Nichols 
 v. Guthrie, 109 Tenn. 535, 73 S. W. Rep. 107. 
 
 467
 
 308 CONTINGENT REMAINDERS. [PART II. 
 
 gency refers only to the first remainder, and the others are 
 then vested. The vesting of a contingent remainder in such a 
 case only postpones the enjoyment of the others, and its fail- 
 ure only accelerates their time of enjoyment. Thus, where 
 the limitations are to A. for life, remainder to his first and 
 other sons in tail, remainder to B. for life, remainder to his 
 first and other sons in tail, neither A. nor B. had sons at the 
 time. The successive remainders to their sons in tail were 
 contingent, but the remajpder to B. not being made to depend 
 upon any contingency not even the vesting of the remainder 
 to A. 's sons in tail was vested, notwithstanding the contin- 
 gency of the preceding remainder. 79 And if the remainder 
 to A. 's son in tail failed to take effect because A. had no son, 
 the remainder to B. would take effect in possession upon the 
 death of A., the failure of the remainder in tail only having 
 the effect of accelerating the time of enjoyment by B. And if 
 B. had sons before A., the remainder to them in like manner 
 would at once become vested, although the remainder to A.'s 
 sons is still contingent. 80 There may be a vested remainder 
 after a contingent, even where the contingency refers to a 
 collateral event instead of the birth or uncertainty of the 
 person who is to take, provided the vesting of the subsequent 
 remainder is not made to depend upon the happening of the 
 same contingency. Such was the case in the limitation to A. 
 for life, remainder to B. and C. for eighty years, if D. and E., 
 his wife, so long lived; if E. survived her husband, then to 
 her for life ; and after her death to F. in tail, with remainders 
 over in default of issue. The remainder to E. is contingent 
 upon her surviving her husband; but the subsequent re- 
 mainder to F. in tail, and the remainders over, are vested. If 
 E.'s remainder does not vest, F.'s remainder will take effect 
 
 "Uvedall v. Uvedall, 1 Rollc Abr. 119; Lewis v. Waters, 6 East. 
 336; Wright V. Stephens, 4 B. & Aid. 574; Sims V. Conger, 39 Miss. 
 232. 
 
 so Wright v. Stephens, 4 B. & Aid. 574; Bradford v. Foley, 1 Doug. 
 63; Doe v. Brabrant, 3 Bro. C. C. 393; Sims v. Conger, 39 Miss. 232. 
 468
 
 CH. XIH.] CONTINGENT REMAINDERS. 308 
 
 in possession at the termination of the remainder to B. and 
 C., the contingency only postponing or accelerating the time 
 for enjoying the subsequent remainders. 81 
 
 si Bradford v. Foley. 1 Doug. 63; Napper v. Sanders, Hutt, 117; 
 Lethieullier v. Tracy, 3 Atk. 774; Doe v. Ford, 2 E. & B. 970; Fearne 
 Cont. Rem. 233; 2 Washburn on Real Prop. 572. To the same effect 
 see Vandewalker r. Rollins, 63 N. H. 460; Security Co. f. Hardenburgh, 
 53 Conn. 169. Mr. Fearne divides the cases involving these questions 
 into three classes (Fearne Cont. Rem. 233) ; and although it is not 
 necessary to the understanding of the subject, the classification is here 
 given as a fair example of the almost painful refinements of the 
 earlier common-law writers on the law of real property, and it will 
 assist one in learning the subject of remainders, if the trouble is 
 taken to master the distinctions. Mr. Fearne's first class consists of 
 limitations after a preceding estate, which is made to depend upon 
 a contingency which never takes effect. The second class includes all 
 cases of limitation over upon a conditional determination of the pre- 
 ceding estate, and such preceding estate never takes effect. The third 
 class takes in those remainders, which are limited to take effect upon 
 the determination of a preceding estate by a contingency, which never 
 happens, although the preceding estate does take effect. An example 
 of the first class would be a devise to A. for life, and after his decease 
 remainder to the use of his first and other sons by any future wife in 
 tail mail ; but if A. should marry any woman related to his present 
 wife, the limitation will be void, and the estate shall go to the children 
 of B. A. did not marry a second time, and the question was, did the 
 children of B. take at the death of A. without issue by a second mar- 
 riage. It was held that the contingency only affected the limitation 
 to A.'s issue, and that the remainder to the children of B. was vested, 
 and therefore took effect, notwithstanding the limitation to A.'s issue 
 by a second marriage failed. Bradford v. Foley, 1 Doug. 63. See Scat- 
 terwood v. Edge, 1 Salk. 230 n ; Doe v. Brabant, 3 Bro. C. C. 393. 
 The second class may be demonstrated by the following case: A devise 
 to A. for years, remainder to the first and other sons of B., in tail 
 male successively, provided they should take the name of the testator; 
 if they refuse to do so, or they die without issue, then to the first- 
 born son of C. in tail male, with remainders over. B. never had any 
 sons. If the condition, the performance of which had to precede the 
 vesting of the estate in B.'s son, affected the remainder to C.'s son, 
 then the failure of issue in B. would defeat the remainder to C.'s 
 son. But it was held that that was not the case; that the remainder 
 to C.'s son was independent of this contingency, and took effect, what- 
 c -or became of the remainder to B.'s sons. Scatterwood v. Edge, 1 
 
 469
 
 309 CONTINGENT REMAINDERS. [PART II. 
 
 309. Same Such limitations in wills. Very little diffi- 
 culty is experienced in determining whether the contingency 
 affects all of the successive limitations in remainder, when 
 they appear in a deed. But, on account of the frequently in- 
 accurate and untechnical language of testators, such limita- 
 tions in wills often give considerable trouble in the interpre- 
 tation and construction of them. And it may be laid down 
 as the universal rule that the determination of these questions 
 depends upon what appears to be the intention of the testator 
 in respect to them, as expressed in his will. If the intention 
 appears to have been to extend the contingency to all the 
 limitations, it will have the effect of making them all con- 
 tingent; otherwise the subsequent remainder will be vested, 
 whatever may be the strict and literal meaning of the terms 
 used. 82 Thus a devise was limited to the use of testator's son 
 for life, and, on his decease, remainder to the use of his first 
 and other sons by any future wife in tail male ; provided that 
 if the son should marry any woman related to his present wife 
 the US3S to the issue of such marriage would be void and the 
 estate go to the use of the children of H. The son did not 
 marry at all. There was no express direction as to how the 
 estate should go if the son died without issue. But it was 
 held upon the construction of the whole will that the intention 
 of the testator was that the children of H. should take, 
 whether the son married the objectionable person, or did not 
 
 Salk. 230. The following is an example of the third class; A. de- 
 vised to his son in tail male, remainder to B. for life, remainder to 
 B.'s sons in tail male, upon condition that he should change his 
 name, and upon his refusal, or the refusal of any of his sons to do so, 
 the estate was to go to D. B. performed the condition, and died with- 
 out issue. It was held that the performance of the condition by B. 
 defeated the devise over to D., for the latter limitation was intended 
 only to take effect upon the breach of the condition. Amherst v. Lyt- 
 ton, 3 Bro. P. C. 486. But see Luxford v. Cheeke, 3 Lev. 125. See 2 
 Washburn on Real Prop. 572-575. 
 
 822 Washburn on Real Prop. 573, 575; 1 Pres. Est. 88; Fearne Cont. 
 Hem. 235; Luxford v. Cheeke, 3 Lev. 125; Doe V. Shipphard, 1 Doug. 
 75; Davis V. Norton, 2 P. Wms. 390. 
 470
 
 CH. XIII.] CONTINGENT REMAINDERS. 309 
 
 marry at all. 83 The two following cases will show how close 
 and refined the construction can be, and how dependent the 
 construction is upon the apparent intention of the testator. 
 In the one case the devise was to A. for a term of years, re- 
 mainder to tlie first and other sons of B. in tail male, provided 
 they each should take the name of the testator; but should 
 they refuse to do so, or should die without issue, then over 
 to C. 's eldest son in tail male, with remainders over. A strict 
 construction of this devise would make the remainder to C.'s 
 eldest son in tail, as well as the other remainders over, con- 
 tingent upon the refusal of B. 's sons to take the testator's 
 name, and these remainders could only vest upon the happen- 
 ing of this contingency. But the court held that the contin- 
 gency only referred to the remainders to B.'s sons, and if B. 
 had no son the remainder to C.'s son would take effect just 
 as well as if B. had had a son, and the son had refused to 
 perform the condition annexed to his estate. 84 In the other 
 case, the devise was to the testator's son in tail male, re- 
 mainder to B. for life, remainder to B.'s sons in tail male, 
 upon condition that he should change his name, and if he, 
 or any sen of his, should refuse so to do, the estate was to go 
 to D. The testator's son died without issue. B. changed his 
 name and then died without issue. It was held that D. 's es- 
 tate was to vest only in case B. or any of his sons should re- 
 fuse to perform the condition, and since B. did change his 
 name, the condition was performed, and his death afterwards 
 without issue defeated the estate in D. 85 This subject has 
 
 3 Bradford v. Foley, 1 Doug. 63. If life tenants under a legal life 
 estate, take by will, as remaindermen, the two estates coalesce and a 
 merger occurs, in Maryland. Graham v. Whitridge, 57 Atl. Rep. 609. 
 
 84 Scatterwood V. Edge, 1 Salk. 230. 
 
 5 Amherst v. Lytton, 3 Bro. P. C. 486. A parallel case to the one 
 cited in the preceding note, in which the court reached a contrary 
 decision, is that of Luxford v. Cheeke, 3 Lev. 125. In that case the 
 testator devised to his wife for life; but if she married again, the es- 
 tate should, upon her marriage, vest in his son H. in tail male, with 
 remainders over. The wife did not marry again, and died. It was 
 held, that from a consideration of the whole will, it was the apparent 
 
 471
 
 310 CONTINGENT REMAINDERS. [PART II. 
 
 received a more full and complete treatment by Mr. Fearne 
 in his work on contingent remainders, but the explanation 
 here given will suffice for all practical purposes. 
 
 310. Alternate remainders in fee. Although it is a well 
 established rule that a remainder cannot be limited after a fee, 
 yet estates may be so limited that the remainder in fee shall go 
 to one or the other of two persons upon the happening or not 
 happening of a certain contingency. This is called a fee with 
 a double aspect. If the remainder vests in one the other re- 
 mainder is absolutely void, and the second vests only when the 
 first fails. Thus a devise was made to A. for life, and if he 
 had issue, then to such issue in fee ; but if he died without is- 
 sue, then to B. in fee. If A. died without issue, then the re- 
 mainder to B. would vest and take effect ; but if A. died leaving 
 issue, B. 's remainder would at once be defeated. B. 's remain- 
 der is not made to take effect upon the determination of the re- 
 mainder to A. 's issue. If it had been limited as to take effect 
 in derogation of the remainder to A. 's issue, after it had 
 vested, it would have been void as a remainder, although it 
 would have been held good as an executory devise. But the 
 alternate remainders, in order to be good, must both be con- 
 tingent. The second is necessarily contingent, and if the first 
 is vested the second could only take effect by defeating or de- 
 stroying the first, and this would make it a remainder limited 
 after a fee, and therefore void. 80 
 
 intention of the testator that his son H. should take the estate in 
 tail, only in case the testator's wife should marry again, and since 
 she remained a widow, the remainder in tail was defeated. 
 
 86 Luddington v. Kime, 9 Ld. Rayni. 203; Goodwright v. Dunham, 
 1 Doug. 265; Doe v. Shelby, 2 B. & C. 926; Doe v. Challis, 2 Eng. 
 Law & Eq. 215; Dunwoodie v. Reed, 3 Serg. & R. 452; Taylor v. Taylor, 
 63 Pa. St. 481; 3 Am. Rep. 565; 2 Washburn on Real Prop. 575-577. 
 In Luddington t/. Kime, which may be taken as a good example of the 
 rule, the devise was to A. for life, remainder to his male issue in fee 
 simple, remainder over to T. B., if A. should die without male issue. 
 These remainders are alternate, one of which alone can vest, and the 
 vesting of one and the defeat of the other are to take place at the samo 
 472
 
 CH. XIH.] CONTINGENT REMAINDERS. 312 
 
 311. Restrictions upon the nature of the contingency 
 Its legality. The contingent event, upon the happening of 
 which the remainder is to vest, must not be illegal, or 
 against good morals (contra bonos mores). Thus, if the re- 
 mainder is limited to a bastard not in being, it would be 
 void. And such would be the case whenever the contingency 
 involved was against public policy. This is only a reiteration 
 of the rule, by which the legality of all conditions to estates 
 is tested. 87 
 
 312. Same Remoteness. The event must not be too 
 remote, so as to suspend the power of alienation beyond the 
 period allowed by the policy of the law. Lord Coke, and 
 the law writers of his day, laid down the rule that the event 
 must be a common possibility, as it wns called ; and that if a 
 double possibility, or a possibility upon a possibility, was in- 
 volved in the contingency, the remainder would be void. A 
 remainder to an unborn son, according to this rule, would be 
 good; but a remainder to A., the unborn son of B., would be 
 void, because it involved a double possibility : First, that B. 
 shall have a son; and secondly, that his name shall be A. 
 This rule has long since been discarded by the courts as mis- 
 leading, and not at all consonant with public policy. Such 
 
 time, viz.: at the death of A. If the remainder to T. B. had been 
 limited on another contingency, and its vesting was to take place at 
 some other time, or if the limitation to A.'s issue was vested, instead 
 of being contingent, the remainder to T. B. would be a remainder 
 limited after a fee. See some late cases on this subject in Appeal of 
 Reiff, 125 Pa. St. 145; Barker v. Southerland (N. Y.), 6 Dem. Sur. 
 220; Demill V. Reid (Md.), 17 Atl. Rep. 1014; Beckley v. Leffingwell, 
 57 Conn. 163; Mercantile Bank V. Ballard, 83 Ky. 481; Webster r. 
 Ellsworth (Mass), 18 N. E. Rep. 360; Pryor v. Castleman (Ky.), 7 
 S. \V. Rep. 892; McCormick v. McElligott, 127 Pa. St. 230; West v. 
 Reynolds, 5 N. Y. Supp. 942; Thackston v. Watson, 84 Ky. 206 . Al- 
 bert r. Albert, 68 Md. 352 ; Myar v. Snow, 49 Ark. 125 ; Davis v. Wil- 
 liams, 1 Pickle, 646; Post v. Van Houten, 41 N. J. Eq. 82; Cornwall v. 
 Wueff, 148 Mo. 542. 
 
 872 Washburn on Real Prop. 580; Williams on Real Prop. 272. 
 
 473
 
 312 CONTINGENT REMAINDERS. [PART IT. 
 
 a remainder would now be held good. 88 It has never received 
 general recognition by the courts, and it was even evaded by 
 the authors of it by the introduction of vital exceptions. For 
 example, Lord Coke tells us that the contingency of two per- 
 sons, presently married to different persons, marrying each 
 other, is only a common possibility; while the possibility that 
 one shall have a son named A. is double. 80 But while this 
 rule no longer prevails, it does not follow that a remainder 
 will be good, however remote the contingency may be. Some 
 have held that the rule of perpetuities, which prevails in re- 
 spect to executory devises and contingent uses, has been ap- 
 plied to contingent remainders. But this statement is mis- 
 leading, without words of qualification, and it has been held 
 to be fallacious. 90 On account of the fact that a remainder 
 must take effect before the termination of the preceding life 
 estate, the remainder must take effect if at all within a life in 
 being, it matters not how many contingencies affect its vesting, 
 if the tenant of the preceding life-estate is in being, when the 
 
 882 Washburn on Real Prop. 580; Williams on Real Prop. 273, 274; 
 Cholmdey's Case, 2 Rep. 51; Cole v. Sewell, 4 Dur. & Warr. 27; s. c. 
 2 H. L. Cas. 186. In Routledge v. Dorvil, 2 Ves. Jr. 357, a remainder 
 was upheld, the vesting of which depended upon four contingencies ; that 
 a husband and wife should have a child, that the child should have a 
 child, that the grandchild should be alive at the decease of the 
 survivor of the grandparents, and if it is a grandson, he should attain 
 the age of twenty-one, and if a granddaughter, she should attain 
 that age or marry. In Col v. Sewell, supra, Lord St. Leonards (Sir 
 E. Sugden) says: "As to the question of remoteness, at this time 
 of day I was very much surprised to hear it pressed upon the court, 
 because it is now perfectly settled that where a limitation is to take 
 effect as a remainder, remoteness is out of the question; for the 
 given limitation is either a vested remainder, and then it matters not 
 whether it ever vests in possession, because the previous estate may sub- 
 sist for centuries, or for all time, or it is a contingent remainder, and 
 then, by the rule of law, unless the event upon which the contingency 
 depends happens so that the remainder may vest eo instanti, the pre- 
 ceding limitation determines, it can never take effect at all." 
 
 8 Williams on Real Prop. 273; 2 Rep. 51 b; 10 Rep. 50 b. 
 
 Williams on Real Prop. 273; Rawle's note; Seaves v. Fitzgerald, 
 141 Mass. 401; Farnam v. Farnam, 53 Conn. 261. 
 474
 
 CH. XIII.] CONTINGENT REMAINDERS. 312 
 
 question is raised. Therefore, following the rule of perpetu- 
 ity, with this explanation of its application to remainders, we 
 find that the only restriction imposed upon the limitation of 
 contingent remainders is that there can be no limitation to 
 the unborn child of an unborn person, where the latter is to 
 take the preceding remainder. 01 In abolishing the rule that 
 there cannot be a double possibility, the courts extracted there- 
 from its essence, and formulated it in the above rule. A 
 remainder, therefore, may be made to depend upon any num- 
 ber of contingencies, provided the person who is to take is 
 not the unborn child of an unborn person in whom is vested 
 the preceding remainder. Thus, in a remainder to A., an 
 unborn son, for life, remainder to his, A. 's eldest child in fee, 
 the remainder to A. 's unborn child would be void. But in a 
 limitation to A., for life, remainder to the eldest grandchild 
 of B., the remainder would be good, although B. has as yet no 
 child, for the remainder must vest, if at all, during the life 
 of A., and, therefore, not too remote. This does not, of 
 course, prevent the limitation of an estate tail to an unborn 
 child. And when a testator attempts to give a life estate to 
 an unborn person, with remainder in tail to his children, the 
 courts, taking note of the general intent to create an estate 
 tail, will construe the estate to the unborn person to be a free 
 tail, instead of declaring void the remainder in tail to his 
 children. 92 But if such a limitation appeared in a deed, this 
 construction could not be upheld, and the remainder would 
 be declared void. 03 
 
 i Hay v. Coventry, 3 T. R. 86 ; Brudenell v. Elwes, 4 East 452 ; 
 Fearne Cont. Rem. 562, 565; Monypenny v. Bering, 2 De G. M. & 
 G. 145; s. c. 16 M. & W. 428; Cole v. Sewell, 2 H. L. Cas. 186; Coun- 
 den v. Clerke, Hob. 33 a; Jackson t?. Brown, 13 Wend. 442. 
 
 2 Doe v. Cooper, 1 East 234; Den t?. Pukey, 6 T. R. 303; Mony- 
 penny V. Dering, 16 M. & W. 428; Humberston v. Humberston, 1 P. 
 Wms. 332; Nourse v. Merriam, 8 Cush. 11; Allyn v. Mather, 9 Com. 
 114; Jackson v. Brown, 13 Wend. 437; Daebler's Appeal, 64 Pa. St. 
 15; Dorr v. Levering (Mass). 18 N. E. Rep. 412. 
 
 2 Washburn on Real Prop. 582; Williams on Real Prop. 276, 
 Rawle's note. 
 
 475
 
 313 CONTINGENT REMAINDERS. [PART II. 
 
 313. Same Abridging the particular estate. A third 
 rule in respect to the contingent event is that it must not 
 abridge the particular estate, so as to defeat it before its 
 natural termination. In other words, a remainder cannot be 
 limited after an estate upon condition, to take effect upon the 
 breach of the condition, even if the estate upon condition is 
 less than a fee. Thus, in a limitation to a widow for life, and 
 if she should marry again, then over, the limitation over 
 would be void if it appears in a deed unless it was in the 
 nature of a shifting use ; and, if by will, it could only take 
 effect as an executory devise. The limitation, in order to be 
 good as a remainder, should be to the widow as long as she re- 
 mains a widow, remainder over. That is, the preceding estate 
 must be an estate upon limitation, instead of an estate upon 
 condition. 94 The only exception to this rule is where the 
 remainder is given to the same person who has the particular 
 estate, or to the survivor or survivors of them. In such a 
 case, the happening of the condition and the consequent vest- 
 ing of the remainder only defeats the particular estate by 
 causing it to merge in the greater estate, and practically en- 
 larges it, instead of defeating it. Thus, an estate was given 
 to a wife and daughter for their lives and the life of the 
 survivor, and if the daughter had issue, then to the daughter 
 and her heirs forever after the death of the wife ; and if the 
 daughter died without issue, then to the wife and her heirs 
 forever. These remainders were held good in accordance 
 
 942 Washburn on Real Prop. 582, 583; 1 Prest. Est. 91; Fearne Cont. 
 Eem. 262; Sheffield V. Orrery, 3 Atk. 282; Cogan v. Cogan, Cro. Eliz. 
 360; Proprietor's Brattle Eq. Church v. Grant, 3 Gray, 149; Green v. 
 Hewitt, 97 111. 113, 13 Am. Rep. 102. In Indiana, Wisconsin and 
 Minnesota, statutes permit the limitation of contingent remainders, 
 which, in vesting, abridge the particular estates which support them. 
 And in New York, all conditional limitations are made legal estates, 
 and a limitation to take effect in derogation of the particular estate 
 is a legal estate, although it is not a contingent remainder. 2 Washburn 
 on Real Prop. 594. 
 
 476
 
 CH. XIII.] CONTINGENT REMAINDERS. 315 
 
 with the above exception. 95 The limitations after the estate 
 fur life to the wife and daughter were alternate remainders, 
 and not conditional limitations. 
 
 314. How contingent remainders may be defeated. As a 
 corollary to the rule that the contingent remainder must vest 
 on or before the termination of the particular estate, by what- 
 ever means it is determined, it follows that if the particular 
 estate is defeated or destroyed in any manner before its nat- 
 ural period of limitation has run, the contingent remainder 
 will also be defeated, if it has not then become vested. At 
 common law the rule was applied almost without limitation, 
 so that any destruction of the particular estate resulted to 
 defeat the remainder. 96 
 
 315. Same 1. By disseisin of the particular tenant. 
 The mere disseisin of the tenant for life would not defeat the 
 contingent remainder, provided he has not been so far divested 
 of his seisin that he has lost his right of entry, and would be 
 forced to his right of action in order to recover the seisin. 
 In such a case there would be no seisin, whether legal or 
 actual, present in the particular tenant to support the re- 
 mainder, and it would accordingly be defeated. But as long 
 as he has not lost his right of entry he still retains the legal 
 seisin, although deprived of his actual seisin by the tortious 
 possession of the disseisor. 97 The common-law distinction be- 
 tween the right of entry and of action, and the law of descent 
 cast, resulting in a loss of the right of entry, has been 
 abolished in most of the States, so that the prevailing rule in 
 
 s2 Washburn on Real Prop. 583, 584; Goodtitle r. Billington, 1 Doug. 
 753. But see Johnson v. Johnson, 7 Allen, 107. 
 
 Doe v. Gatacse, 5 Bing. N. C. 609; Archer's Case, 1 Co. 66 b; 
 Penhey v. Harrell, 2 Freem. 213; 2 Bla. Com. 171; 2 Washburn on Real 
 Prop. 589. 
 
 0^2 Washburn on Real Prop. 586; 2 Cruise's Dig. 245; Williams on 
 Real Prop. 280; Fearne Cont. Rem. 286. 
 
 477
 
 316 CONTINGENT REMAINDERS. [PART II. 
 
 this country is that no disseisin of the particular tenant will 
 work a destruction of the contingent remainder. 08 
 
 316. Same 2. By Merger. It has already been shown 
 that whenever a particular estate and a remainder become 
 united in one person at the same time, the former is merged 
 in the latter, the whole becoming one estate. The particular 
 estate is effectually destroyed by a merger, and loses its 
 identity altogether. 98 If, therefore, the particular tenant sur- 
 renders to the reversioner or ultimate remainder-man in fee, 
 or if he acquires the reversion without a vested intervening 
 estate, the intervening contingent remainder will be defeated. 1 
 This will happen, whether the reversion is acquired by de- 
 scent or by purchase, except in one single case of descent. If 
 the particular estate and contingent remainders are created 
 by a devise, and the reversion descends to the tenant of the 
 particular estate, as the heir of the testator, no merger would 
 result, as it would nullify the expressed intention of the tes- 
 tator to give a contingent remainder to a person other than 
 his heir. But if the particular tenant, in the case of such a 
 devise, subsequently acquires the reversion by purchase, or 
 by descent from the heir of the testator, a merger will result 
 as in any other case, and the contingent remainder will be 
 defeated. 2 The doctrine of merger has been held in Pennsyl- 
 
 s 2 Washburn on Real Prop. 586, note. In Massachusetts, Kentucky, 
 Mississippi, Missouri, Texas, Virginia, New York, Michigan, Minnesota, 
 and Wisconsin, disseisin of the tenant of the particular estate will not 
 defeat the contingent remainder. 2 Washburn on Real Prop. 594. But 
 see, Archer v. Jacobs, 125 Iowa 467, 101 N. W. Rep. 195. 
 
 99 The union of the life estate, vested remainder and reversion in 
 a common grantee, will merge and destroy a contingent remainder, 
 limited to persons who are not and may never be, in being. Archer v. 
 Jacobs, 125 Iowa 467, 101 N. W. Rep. 195. 
 
 iPenhey n. Harrell, 2 Freem. 213; Doe V. Gatacse, 2 Bing. N. C. 
 609; Archer's Case, 1 Co. 66 b; 2 Washburn on Real Prop. 589. But 
 there will be no merger by the transfer to the tenant in tail of the 
 remainder after the estate tail. Wiscott's Case, 2 Rep. 61; Roe V. 
 Baldwere, 5 T. R. 110; Poole V. Morris, 29 Ga. 374. 
 
 2 Fearne Cont. Rem. 340 ; 2 Washburn on Real Prop. 589, 590 ; Crump 
 478
 
 CH. XIII.] CONTINGENT REMAINDERS. 317 
 
 vania not to apply, where a tenant for life buys the ultimate 
 remainder, or conveys his estate to such remainder-man, 
 where there is an intervening contingent remainder, so as to 
 defeat the contingent remainder. 3 
 
 317. Same 3. By feoffment. The contingent remainder 
 could also be defeated by the conveyance of the tenant by 
 feoffment. It was the peculiar rule in connection with this 
 mode of conveyance, that if the tenant of a particular estate 
 for example, the tenant for life attempted to convey a fee 
 or other greater estate by feoffment, he lost his estate and 
 conveyed nothing to his feoffee. 4 The particular estate was 
 effectually destroyed, and it would consequently defeat any 
 contingent remainders depending upon it. But this peculiar- 
 ity prevailed only in the case of feoffment. If the conveyance 
 was in any other form, as by any of the deeds operating under 
 the Statute of Uses, the grantee would take only what estate 
 the tenant had, and the contingent remainder would remain 
 unaffected. 6 
 
 t>. Norwood, 7 Taunt. 362; Doe v. Scudmore, 2 B. & P. 294; Plunket 
 v. Holmes, 1 Lev. 11; Cresfield v. Storr, 36 Md. 129. If a life tenant 
 takes by will, as a remainderman, a merger occurs, in Maryland. 
 Graham v. Whitridge, 57 Atl. Rep. 609. 
 
 s Stewart v. Neely, 139 Pa. St. 309. 
 
 * See post, Sec. 536. "If it (the feoffment) proposed to convey a 
 fee simple, it created an actual fee simple in the feoffee, by right or by 
 wrong, according as the feoffor was or was not seised in fee." 3 
 Washburn on Real Prop. 351. 
 
 52 Washburn on Real Prop. 589; Thompson v. Leach, 2 Salk. 576; 
 Smith v. Clyfford, 1 T. R. 744; Dennett v. Dennett, 40 N. H. 498; 3 
 Washburn on Real Prop. 352; Litchfield V. Ferguson, 141 Mass. 93. It 
 is now provided by statute that feoffment shall not have any tortious 
 operation. 3 Washburn on Real Prop. 351; 4 Kent's Com. 481. Thorp 
 are also general statutory provisions in Massachusetts, Kentucky, 
 Mississippi, Missouri, Texas, Virginia, New York, Michigan, Minnesota, 
 and Wisconsin, which declare that no alienation or other act of the 
 tenant of the particular estate shall defeat the contingent remainder 
 before the happening of the contingency, on which the vesting of the 
 remainder is made to depend. 2 Washburn on Real Prop. 594. 595. 
 
 479
 
 319 CONTINGENT REMAINDERS. [PART II. 
 
 318. Same. 4. By entry for condition broken. If the 
 particular estate is an estate upon condition, since a contin- 
 gent remainder could not be made to vest upon the breach 
 of the condition, such a breach and the consequent entry 
 of the reversioner, he being the only one who could enter, 
 would destroy the particular estate, and therewith the re- 
 mainder dependent upon it. 6 
 
 319. Trustees to preserve To remove the great danger 
 of destruction by the act of the particular tenant, to which 
 contingent remainders were exposed, a very ingenious method 
 was devised by Sir Geoffrey Palmer and Sir Orlando Bridg- 
 man, whereby the contingent remainder was fully protected 
 from the effect of a destruction of a particular estate before 
 its natural termination. It was by interposing between the 
 particular estate and the contingent remainder a vested re- 
 mainder to trustees, as it was called, "to preserve contingent 
 remainders." For example, the limitations would be to A. 
 for life, remainder during the life of A. to trustees to pre- 
 serve contingent remainders, remainder to the heirs of B. If, 
 by any act of his, A.'s estate is destroyed, whether it be by 
 desseisin, merger, feoffment, or the breach of a condition at- 
 tached to his estate, the vested remainder to the trustees will 
 take effect in possession. And since their estate is a trust, they 
 cannot in any way defeat it; it continues to exist under all 
 circumstances, until the period of its natural limitation has 
 expired. 7 In England, and generally in the States of this 
 country, statutes have been passed preventing the destruction 
 of the contingent remainder by the determination of the par- 
 ticular estate in any other mode, except the expiration of the 
 period of natural limitation. Wherever there are such stat- 
 ic Cogan v. Cogan, Cro. Eliz. 360; Sheffield v. Orrery, 3 Atk. 282; 
 Proprietors Brattle Sq. Church v. Grant, 3 Gray, 149 ; Williams V. 
 Angell, 7 R. I. 152; Archer v. Jacobs, 125 Iowa, 467, 101 N. W. Rep. 
 195. 
 
 72 Washburn on Real Prop. 590; 2 Bla. Com. 171; Fearne Cont. Rem. 
 325; Williams on Real Prop. 283, 284. 
 480
 
 CH. XIII.] CONTINGENT REMAINDERS. 320 
 
 utes it is not necessary to interpose a remainder to trustees; 
 but in times past it was a very essential precaution, and 
 was generally employed. 
 
 320. Actions by remainder-men. The relation of the ten- 
 ant of the particular estate and that of the remainder-man has 
 already been discussed and it has been shown that there are 
 reciprocal rights and duties owing to each and that each has 
 certain rights, as regards the preservation and enjoyment of 
 his interest, that the other is bound to respect. 8 Since the re- 
 mainder-man has no right to possession of the estate during 
 the continuance of the particular estate, he is not, generally, 
 entitled to sue for any injury to the possession of the tenant 
 of the preceding estate, but for all injuries to the possession 
 or other acts that would not amount to an injury to the in- 
 heritance the tenant and not the remainder-man, is the proper 
 person to sue. 9 Where, however, the acts of the life tenant 
 or those of a third person are such as result in damage to 
 the inheritance, as where the inheritance is injured by waste, 
 whenever the interest of the remainder-man is so far vested 
 as that it could be legally regarded as an estate in the land, 
 then the remainder-man and not the tenant, is a proper person 
 to maintain the action for such injuries. 10 
 
 s Ante Sec. 300. 
 
 A action of ejectment cannot be maintained by a remainderman, 
 during the life of the life tenant. Laster v. Blackwell, 133 Ala. 337, 
 32 So. Rep. 166. A remainderman cannot sue in trespass, for any in- 
 jury to the possession, until termination of the life estate. Bottorff 
 v. Lewis (Iowa 1903 1, 95 N. W. Rep. 262. 
 
 10 Where the inheritance is injured by waste, the remainderman and 
 not the life tenant should sue for such waste. Learned v. Ogden, 80 
 Miss. 769, 32 So. Rep. 278. Life tenant held entitled to recover for 
 injury, by waste, to inheritance, in New York, Dix v. Jaguay, 88 N. Y. 
 S. 228, 94 App. Div. 554. Although the common law did not recog- 
 nize a right of action by a contingent remainderman, equity will grant 
 an injunction, even though there are mesne remaindermen. Palmer v. 
 Young, 108 111. App. 252. 
 
 31 481
 
 SECTION III. 
 
 ESTATES WITHIN THE RULE IN SHELLEY'S CASE. 
 
 SECTION 321. Origin and nature of the rule. 
 322. Requisites of the rule. 
 
 321. Origin and nature of the rule. It has long been a 
 rule of the common law, that if an estate for life, or any 
 other particular estate of freehold, be given to one with re- 
 mainder to his heirs, the first taker shall be held to have the 
 fee, and the heirs will take by descent and not by purchase. 
 The first taker is thereby enabled to make a free disposition 
 of the estate in fee, and the heirs take by descent, only when 
 no disposition has been made of it by the first taker. The rule 
 was first given an authoritative utterance in Shelley's Case, 
 decided in the time of Lord Coke, and hence it is. called "the 
 rule in Shelley's Case." Although called "the rule in Shel- 
 ley's Case," it was then an ancient rule of the common law. 11 
 
 " Shelley's Case, 1 Rep. 94 ; 2 Washburn on Real Prop. 597 ; Williams 
 on Real Prop. 253. In Perrine V. Blake, 4 Burr. 2579, Mr. Justice 
 Blackstone refers to a case decided in the reign of Edw. II ( 18 Edw. 
 II fol. 577), in which he thinks the rule was first laid down. Mr. 
 Rawle in his note (Williams on Real Prop. 255, note 1), calls the 
 reader's attention to the fact that the validity of the rule was not 
 brought into question in Shelley's Case, but it was there for the first 
 time stated so clearly that it has been given the name of the rule in 
 Shelley's Case. In Indiana, where the rule in Shelley's Case is said 
 " to be too well settled to admit of controversy," the rule is stated 
 thus : " Where a freehold is limited to one for life, and by the same 
 instrument, the inheritance is limited, either mediately or immediately, 
 to heirs, or heirs of his body, the first taker takes the whole estate, 
 either in fee-simple, or fee-tail ; and the word ' heirs,' or ' heirs of 
 his body ' are words of limitation and not of purchase." Taney V. 
 Fahnley, 126 Ind. 88; Finch's Sel. Cas. Prop, in Land 519; Shinier 
 t?. Mann, 99 Ind. 190. " The rule in Shelley's Case is, that if an es- 
 482
 
 CH. xin.] RULE IN SHELLEY'S CASE. 321 
 
 Blackstone refers it to a case which was tried in the 18 Edw. 
 II. It is not definitely known what are the precise reasons 
 for establishing such an arbitrary rule. Some have held that 
 it was to prevent the loss of the lord's wardships by per- 
 mitting the heirs to take as purchasers; while others have 
 thought it arose from the general prevalence of the custom 
 to construe the word "heirs," in instruments of conveyance 
 as a word of limitation instead of purchase. 12 Perhaps the 
 best reason is to be found in the fact that, at the time when 
 the rule was first established, a contingent remainder was an 
 impossible limitation, the remainder to the heirs being contin- 
 gent until the death of the ancestor, and the rule was de- 
 vised, in order to give effect to the intent of the grantor, as 
 nearly as possible. 13 But whatever may have been the rea- 
 son it is a well established rule, and prevails wherever it is 
 not abolished by statute. 14 But in some of the States at the 
 
 tate for life, or any other particular estate of freehold, be given to 
 one, with remainder to his heirs, the first taken shall be held to have 
 the fee, and the heirs will take by descent and not by purchase." 
 Lacey v. Floyd (Tex. 1905), 84 S. W. Rep. 587, 87 idem 665. 
 
 122 Washburn on Real Prop. 597; Williams on Real Prop. 254; 1 
 Prest. Est. 306. 
 
 is This is the suggestion of the author, based upon the opinion of 
 Mr. Williams, in which the author concurs, that at an early day con- 
 tingent remainders were not recognized as valid legal limitations. See, 
 ante, Sec. 305; Williams on Real Prop. 263. A remainder to the 
 heirs of the tenant for life would be a contingent remainder, unless it 
 was made under the rule in Shelley's Case to enlarge the estate of the 
 first taker into a fee. 
 
 i* The rule has been generally recognized by the courts of this coun- 
 try, and it still prevails in perhaps most of the States. Georg v. 
 Morgan, 16 Pa. St. 95; Kleppner v, Laverty, 70 Pa. St. 73; James' 
 Claim, 1 Dall. 47; Tillinghast v. Coggeshall, 7 R. I. 383; Lyles v. 
 Digge, 6 Harr. & J. 364; Chilton v. Henderson, 9 Gill, 432; Roy v. 
 Garnett, 2 Wash. (Va.) 9; Smith v. Chapman, 1 Hen. &, M. 240; 
 Davidson v. Davidson, 1 Hawks, 163; Hull v. Deals, 23 Ind. 28; Baker 
 v. Scott, 62 111. 86; Taney v. Fahnley, 126 Ind. 88; Conn. Mut. Life 
 Ins. Co. v. Skinner, 4 Ohio C. C. 526; Carson v. Fuhs, 131 Pa. St. 
 256; Van Olinda v. Carpenter (111.), 19 N. E. Rep. 868; Hageman v. 
 Hageman, 129 111. 164. See Boykin v. Ancrum, 26 8. C. 486; Leathers 
 
 483
 
 321 RULE IN SHELLEY'S CASE. [PART n. 
 
 v. Gray, 101 N. C. 162; Andrews v. Lothrop (R. I.), 20 Atl. Rep. 97; 
 Spader r. Powers, 56 Hun 153; Wilkerson v. Clark (Ga.), 7 S. E. Rep. 
 319; Leathers v. Gray (N. C.), 7 S. E. Rep. 657; Ryan v. Allen, 120 
 111. 643; Allen v. Crafts, 109 Ind. 476; Cockin's Appeal, 111 Pa. St. 
 26. The rule is still enforced in North Carolina (Morrisett v. Stevens, 
 136 N. C. 160, 48 S. E. Rep. 661) ; Texas (Lacey v. Floyd, 84 S. W. Rep. 
 857, 87 Ib. 665) ; South Carolina (Davenport v. Eskew, 69 S. C. 292, 48 
 S. E. Rep. 223) ; Tennessee (Bingham v, Weller, 81 S. W. Rep. 843) ; 
 Illinois (Deemer v. Kessinger, 206 111. 57, 69 N. E. Rep. 28) ; Ne- 
 braska (Albin v. Parmele, 98 N. W. Rep. 29, 646) and Pennsylvania 
 (Shapley v. Diehl, 203 Pa. 566, 53 Atl. Rep. 374). In Hillman r. 
 Bouslagh, 13 Pa. St. 344, Chief Justice Gibson, in an able opinion, 
 gives the rule a most earnest support, and defends the policy of re- 
 taining it as a part of the American law of real property. " The rule 
 in Shelley's Case," says he, " ill deserves the epithets bestowed on it in 
 the argument. Though of feudal origin, it is not a relic of barbarism, 
 or a part of the rubbish of the dark ages. It is part of a system; 
 an artificial one, it is true, but still a system, and a complete one. 
 . . . It happily falls in with the current of our policy. By turning a 
 limitation for life, with remainder to the heirs of the body, 
 into an estate tail, it is the handmaid not only of Taltarum's Case," 
 (in this case estates tail were held for the first time to be barred by 
 a common recovery. See ante, Sec. 42), "but of our statute for bar- 
 ring entails by a deed acknowledged in court, and where the limitation 
 is to heirs general it cuts off what would otherwise be a contingent 
 remainder, destructible only by a common recovery. . . . It is ad- 
 mitted that the rule subverts a particular intention in perhaps every 
 instance; for, as was said in Roe v. Bedford, 4 Maul & Sel. 363, it is 
 proof against even an express declaration, that the heirs shall take as 
 purchasers. But it is an intention which the law cannot indulge, con- 
 sistently with the testator's general plan, and which is necessarily sub- 
 ordinate to it. It is an intention to create an inalienable estate tail 
 in the first donee, and to invert the rule of interpretation, by making 
 the general intention subservient to the particular one. The donor is 
 no more competent to make a tenancy for life a source of inheritable 
 succession than he is competent to create a perpetuity, or a new canon 
 of descent. The rule is too intimately connected with the doctrine of 
 estates to be separated from it without breaking the ligaments of 
 property." The learned judge is wrong, when he says that the general 
 rule of the law of interpretation and construction does not require 
 the general intention to be subservient to the particular one. In the 
 construction of wills, in which this conflict between a general and a 
 particular intent usually arises, the general intention only controls 
 the particular when the latter is inoperative on account of its illegality 
 or impossibility of performance and the general intent is carried 
 
 484
 
 OH. XIIL] RULE IN SHELLEY'S CASE. 321 
 
 present time, the rule has been abolished by statute, and 
 the limitation to the heirs would be construed to be a con- 
 tingent remainder, the heirs taking by purchase. 15 
 
 out under the cy pres doctrine to prevent a complete failure of the 
 gift. If it be true that the rule in Shelley's Case arose from an in- 
 ability, according to the early law, to create a contingent remainder, 
 and this is certainly more plausible than to suppose that the courts 
 would arbitrarily nullify the expressed intention of the donor, for that 
 would be an assumption by the courts of legislative powers, then since 
 contingent remainders are now valid limitations, the particular intent 
 of the donor should be allowed to take effect. If it is against the 
 policy of the law to permit the creation of contingent remainders, then 
 they should be abolished by statute. The courts have no legitimate 
 power to effect the change by any such arbitrary and absurd rule of 
 construction, as the rule in Shelley's Case. 
 
 is The rule has been abolished by statute in Maine, Massachusetts, 
 Connecticut, New York, Missouri, Michigan, Tennessee, Virginia, Ken- 
 tucky, Alabama, Wisconsin, California, Dakota, Minnesota Mississippi 
 and West Virginia, 2 Washburn on Real Prop. 607, note 2; Kirchwey, 
 Read, on Real Prop. 357 ; Williams on Real Prop. 260, Rawle's note. In 
 these States the rule has been abolished altogether, both as to grants and 
 to wills. Richardson v. Wheatland, 7 Mete. 172; Bowers v. Porter, 4 
 Pick. 205; Moore v. Littell, 40 Barb. 488; Williamson V. Williamson, 18 
 B. Mon. 329; Montgomery V. Montgomery (Ky.), 11 S. W. Rep. 596? 
 Gaukler v. Moran, 66 Mich. 353; McCauley V. Buckner, 87 Ky. 191? 
 Wedekind f. Hallerberg (Ky.), 10 S. W. Rep. 368; Leake v. Watson 
 (Conn.), 21 Atl. Rep. 1075. The rule has been abolished only as to 
 wills, in Kansas, New Hampshire, New Jersey, Ohio, and Oregon. 
 Kirchwey, Read, on Real Prop. 357 ; 2 Washburn on Real Prop. 607, note 
 2; Dennett v. Dennett, 40 N. H. 500; Den V. Demarest, 1 N. J. 525; 
 Choutman v. Bailey, 62 N. H. 44. In Mississippi it is abolished as to 
 real estate. Powell v. Brandon, 24 Miss. 343. And in Rhode Island 
 it is declared by statute not to apply to devises, in which the property 
 is limited to one for life and remainder to the children or issue of the 
 devisee for life. Williams v. Angell, 7 R. I. 145; In re Willis Will, 25 
 R. S. 332, 55 Atl. Rep. 889. But the rule still holds good in all grants 
 and devises in which the limitation in remainder is to the heirs gen- 
 erally, or to the heirs of the body of the first taker. Bullock V. Water- 
 man St. Soc., 5 R. I. 273; Moore v. Dimond, 76. 127; Manchester r. 
 Durfee, 76. 549; Cooper v. Cooper, 6 R. I. 264; Tillinghast v. Cog- 
 geshall, 7 R. I. 333; McNeal v. Sherwood, 53 Atl. Rep. 43. In Moore 
 n. Littell, 41 N. Y. 66, which was affirmed in House v. Jackson, 50 N. 
 Y. 165, it was declared by the New York Court of Appeals, that after 
 the abolition by statute of the rule in Shelley's Case, the limitation to 
 
 485
 
 322 RULE IN SHELLEY'S CASE. [PART n. 
 
 322. Requisites of the rale. In order that the rule in 
 Shelley's Case may apply, there must be a freehold in the 
 first taker, limited expressly or by implication. An estate 
 less than a freehold would not be sufficient, because a seisin 
 in the first taker is necessary to draw the remainder to the 
 particular estate. 16 But if the limitations appear in a will, 
 
 the heirs of the donee for life is a vested remainder. This remarkable 
 decision is altogether inconsistent with the rules of law of remainders, 
 and even with the New York statutory definition of a contingent re- 
 mainder, viz. : that they are contingent " whilst the person to whom, 
 or the event upon which they are limited to take effect remains un- 
 certain." 1 Rev. Stat., p. 723; Sec. 13; McCall on Real Prop. 113. 
 Prof. McCall, in referring to the case of Moore v. Littell, says; "Thus 
 a grant to A. for life, and after his death to his heirs and assigns for- 
 ever, gives the children of A. a vested interest in the land; although 
 liable to open and let in after born children of A., and also liable, in 
 respect of the interest of any child, to be wholly defeated by his death 
 before his father." Query, if there are no born children, in whom is 
 the remainder vested? the collateral heirs? The true doctrine is that 
 such a remainder is contingent, nemo est hceres viventis, and this Is the 
 rule of the other courts. Richardson V. Wheatland, 7 Mete. 169; 
 Moore f. Weaver, 16 Gray, 307; Williams v. Angell, 8 R. I. 145; Hill- 
 man f. Bouslaugh, 13 Pa. St. 344. 
 
 Pibus v. Mitford, 1 Ventr. 372 ; Webster v. Cooper, 14 How. 500 ; 
 Ogden's App., 70 Pa. St. 509; Williams on Real Prop. 256; 2 Washburn 
 on Real Prop. 598, 601. The rule in Shelley's Case applies to equitable 
 estates as well as to legal estates, where the trusts are executed. Crox- 
 all v. Shererd, 5 Wall. 281; Tillinghast V. Coggeshall, 7 R. I. 383. If 
 they are executory, as they usually are in marriage settlements, or if 
 it is the clear intention of the donor that the tenant for life shall not 
 have the power to cut off the estate in remainder, the rule will not 
 apply. 2 Washburn on Real Prop. 495; Sand. Uses, 311; ones V. Laugh- 
 ton, 1 Eq. Cas. Abr. 392; Gill v. Logan, 11 B. Mon. 231; Berry v. 
 Williamson, 11 B. Mon. 245. The rule is applied to executed trusts 
 with this qualification, that the two estates, the freehold in possession 
 and the remainder, must both be legal or both equitable. The rule will 
 not apply where one is legal and the other is equitable. Sylvester V. 
 Wilson, 2 T. R. 444; Adams V. Adams, 6 Q. B. 860; Doe v. Ironmonger, 
 3 East 533; Curtis v. Rice, 12 Ves. 89; Croxall V. Shererd, 5 Wall. 
 281; Ward v. Armory, 1 Curt. 419; Tallman V. Wood, 26 Wend. 9. 
 But if both are legal it will not prevent the rule from applying if 
 one of them is charged with a trust and the other is an absolute estate. 
 486
 
 CH. xm.] RULE IN SHELLEY'S CASE. 322 
 
 while a remainder can be limited in chattel interests, the rule 
 in Shelley's Case has been held, nevertheless, to apply, so as to 
 give the absolute estate to the first taker. 17 It must, in the 
 second place, be created by the same instrument as is the 
 remainder to the heirs. If given by different instruments 
 the rule will not apply. 18 But a will and an annexed codicil 
 are in this connection considered as constituting one instru- 
 ment, and the rule would apply if the life estate was given in 
 the will proper, and the reversion in the codicil. So also 
 would the rule apply if, instead of a grant of a remainder, 
 there appeared in the same instrument a power of appoint- 
 ment to the heirs. 19 In the next place, the subsequent limi- 
 tation must be made to the heirs of the first taker. If the 
 remainder is limited to the heirs of a stranger, or if it is 
 limited to the joint heirs of two persons, one of whom alone 
 takes the estate in possession, the rule does not apply, and 
 the subsequent limitation remains a contingent remainder in 
 the heirs, as purchasers. 20 If the limitation be to the heirs of 
 
 Tud. Ld. Cas. 484; Douglass v. Congreve, 1 Beav. 59; s. c. 4 Bing. N. 
 C. 1. 
 
 i* Hughes v. Nicholas, 70 Md. 484. In Rhode Island, the rule in 
 Shelley's Case is held applicable to personalty, by analogy, if no con- 
 trary intent appears. Evans v. Weatherhead, 24 R. I. 502, 53 Atl. 
 Rep. 866. 
 
 2 Washburn on Real Prop. 598 ; Co. Lit. 299 b, Butler's note, 26 1 ; 
 Doe v. Fonnerneau, 1 Dougl. 509; Moore r. Parker, 1 Ld. Raym. 37;' 
 Webster v. Cooper, 14 How. 500; Adams v. Guerard, 29 Ga. 675. See, 
 also, Taney v. Tahnley, 126 Ind. 88; Finch's Sel. Cas. Prop, in Land 519. 
 
 i Williams on Real Prop. 256; 2 Washburn on Keal Prop. 598; Hayes 
 . Forde, 2 W. Bl. 698; Tud. Ld. Cas. 483, 484; Co. Lit. 299 b, Butler's 
 note 261 ; Tillinghast v. Coggeshall, 7 R. I. 383. But where a power 
 of appointment is interposed between an estate for life and a con- 
 tingent remainder to one's children or to special heirs, the rule does not 
 apply, and the children or special heirs take as purchasers, although 
 the interposition of the power would not prevent the application of the 
 rule, where the remainder was limited to the heirs generally. Dodson 
 v. Ball, 60 Pa. St. 497; Yarnall's App., 70 Pa. St. 342. 
 
 20 Archer's Case, 1 Co. 66 b; Fuller r. Chamier, L. R. Eq. 682; 
 Webster r. Cooper, 14 How. 500; 2 Washburn on Real Prop. 599; Wil- 
 liams on Real Prop. 261. 
 
 487
 
 322 RULE IN SHELLEY'S CASE. [PART n. 
 
 his body, the first taker would have an estate tail instead of a 
 fee. 21 But if the limitation be to one's heir and the heirs 
 male of the heir, the rule is not applicable, the express limita- 
 tion in tail preventing an amalgamation of the two estates. 22 
 The rule cannot apply where the life estate is an equitable 
 estate, and the remainder is a legal estate. 23 But, with these 
 exceptions, nothing that the grantor can do will prevent the 
 application of the rule if the remainder in fee or in tail is 
 given to the heirs of the first taker not even an express di- 
 rection that the rule should not apply. 24 But limitation to 
 the sons, children, or issue of him who takes the life estate, 
 will not be converted by the rule into a fee in the first taker, 
 unless they are created by will, and from a consideration of 
 the whole will, it appears that these words were used in the 
 sense of heirs. And the strongest and clearest evidence is 
 necessary to give this construction to the words sons or chil- 
 
 21 Pibus V. Mitford, 1 Ventr. 372; Hillman v. Bouslagh, 13 Pa. St 
 351; Toller v. Atwood, 15 Q. B. 929; Doe v. Harvey, 4 B. & C. 610. 
 22Tud. Ld. Cas. 493; McCullough v. Gliddon, 38 Ala. 208. 
 
 23 Rife v. Geyer, 59 Pa. St. 393; Mayer's Appeal, 49 Pa. St. Ill; 
 Reading Trust Co.'s Appeal, 26 W. N. C. 9; Handy v. McKim, 64 
 Md. 560. 
 
 24 Perrin v. Blake, 1 W. Bl. 672 ; a. c, 4 Burr. 2579 ; Roe v. Bedford, 
 4 Mauel & Sel. 363; Toller V. Atwood, 15 Q. B. 929; Doe v. Harvey, 
 4 B. & C. 610; Jesson v. Doe, 2 Bligh, 1; Doebler's App., 64 Pa. St. 
 15; Klappner v. Laverty, 70 Pa. St. 73; Tud. Ld. Cas. 488, 489; 2 
 Washburn on Real Prop. 602 ; Stone V. McEckron, 57 Conn. 194 ; Appeal 
 of Keim, 125 Pa. St. 480 ; Reading Trust Co.'s Appeal, 26 W. N. C.- 9 ; 
 Little's Appeal, 117 Pa. St. 14; Bassett v. Hawk, 118 Pa. St. 94; Hen- 
 derson v. Walthour (Pa.), 15 Atl. Rep. 893; Huntzelman's Appeal, 136 
 Pa. St. 142; Earnhart V. Earnhart, 127 Ind. 396; Giffin's Estate, 138 
 Pa. St. 327. But see contra, Bedford v. Jenkins, 96 N. C. 254; Fields 
 V. Watson, 23 S. C. 42. In Belslay V. Engel (107 111. 186), it is said: 
 "the rule is, at most, a technical rule of construction and has always, 
 Bince the decision in Perrin V. Blake (4 Burr. 257), given way to the 
 clear intention of the testator, or donor, when that intention could 
 be ascertained from the instrument." See, also, Lacey v. Floyd (Tex. 
 1905), 84 S. W. Rep. 857, 87 idem 665. 
 
 488
 
 CH. xin.] RULE IN SHELLEY'S CASE. 322 
 
 dren. 25 It is easier to apply this construction to the word 
 issue. The general rule is that persons thus described take 
 as purchasers and not by descent, and that the remainders are 
 vested as soon as persons corresponding to the description 
 come into being. 26 It has been held also that where the limi- 
 tation in remainder is to the "bodily heirs" of the first taker, 
 the rule will not apply if the contents of the will shows that 
 those were used in the sense of children. 27 The rule will also 
 apply, even though there are intervening limitations to stran- 
 gers. But the fee in remainder would vest in the first taker 
 expectant upon the termination of the intermediate limitation. 
 The intermediate limitation is not destroyed by merger of the 
 estate in possession and the remainder, under the operation of 
 the rule in Shelley's Case. 28 
 
 25 See Greer v. Pate, 85 Ga. 552; Jackson v. Jackson (Ind.), 26 N. 
 E. Rep. 897. 
 
 zepoole V. Poole, 3 Bos. & P. 620; Slater v. Dangerfield, 15 M. & 
 W. 263; Doe V. Daviess, 4 B. & Ad. 43; Shaw v. Weigh, Strange, 798; 
 Robinson v. Robinson, 1 Burr. 38; Lees v. Mosley, 1 Younge & C. 
 589; Doe v. Charlton, 1 M. & G. 429; Doe V. Collis, 4 T. R. 299; Flint 
 t/. Steadman, 36 Vt. 210; Adams V. Ross, 30 N. J. L. 512, overruling 
 Ross v. Adams, 28 N. J. L. 172; Taylor v. Taylor, 63 Pa. St. 483, 3 
 Am. Rep. 565; Webster v. Cooper, 14 How. 500; Ford t;. Flint, 40 Vt. 
 394; Sinton v. Boyd, 19 Ohio St. 30, 2 Am. Rep. 369; People's Sav. 
 Bank v. Denig, 131 Pa. St. 241; Foster r. McKenna (Pa.), 11 Atl. Rep. 
 674; McDonald v. Dunbar (Pa.), 12 Atl. Rep. 553; McCanley 0. 
 Buckner (Ky), 8 S. W. Rep. 196; Boykin r. Ancrum (S. C.), 6 8. E. 
 Rep. 305; Handy v. McKim, 64 Md. 566; Carroll v. Burns, 108 Pa. St. 
 286; Henderson V. Henderson, 64 Md. 185. 
 
 27 Mitchell v. Simpson (Ky.), 10 S. W. Rep. 372. 
 
 282 Washburn on Real Prop. 601; Williams on Real Prop. 256-200: 
 Frank v. Frank (Pa.), 17 Atl. Rep. 11. But see apparently contra, 
 Hadlock v. Gray, 104 Ind. 596. 
 
 489
 
 CHAPTER XIV. 
 
 USES AND TRUSTS. 
 
 SECTION I. Uses before the Statute of Uses. 
 II. Uses under the Statute of Uses. 
 
 III. Shifting, Springing and Contingent Uses. 
 
 IV. Trusts. 
 
 SECTION I. 
 
 USES BEFORE THE STATUTE OF USES. 
 
 SECTION 323. Pre-statement. 
 
 324. Origin and history. 
 
 325. What is a use. 
 
 326. Enforcement of the use. 
 
 327. Distinction between Uses and Trusts. 
 
 328. How uses may be created. 
 
 329. Same Resulting use. 
 
 330. Same By simple declarations. 
 
 331. Who might be feoffees to use and cestuis que use. 
 
 332. What might be conveyed to uses. 
 
 333. Incidents of uses. 
 
 334. Alienation of uses. 
 
 335. Estates capable of being created in uses. 
 
 336. Disposition of uses by will. 
 
 337. How lost or defeated. 
 
 323. Pre-statement. The reader has been prepared, by 
 the classification of estates presented in a previous chapter, 1 
 for the discussion of interests and estates in lands, which are 
 purely equitable ; that is, cognizable solely in a court of equity, 
 and separate and distinct from the legal estate, which is alone 
 recognized in a court of law. Equitable mortgages and liens 
 constitute one class of such interests, which have been already 
 
 iSee ante, Sec. 26. 
 490
 
 OH. XIV. USES BEFORE THE STATUTE OF USES. 324 
 
 considered. 2 The class of equitable interests, which are more 
 properly comprehended under the term estate, is what is 
 known as Uses and Trusts. 
 
 324. Origin and history. It is not proposed to give in 
 detail the history of the origin and introduction into the Eng- 
 lish jurisprudence of Uses and Trusts, but a few words are 
 necessary as explanatory of their character. At common law 
 the only mode of conveying lands was by transmutation of 
 possession. This element was a necessary ingredient of every 
 conveyance, for a common-law title was inseparable from the 
 right of possession. The power of alienation was also very 
 much restricted. It could only be done with the consent of 
 the lord, and even after these restrictions upon conveyancing 
 were removed, the inability to dispose of lands by will, the 
 cumbersome character of the common-law conveyances, and 
 the burdens attached as incidents to a legal estate, such as the 
 rights of dower and curtesy, the possibility of escheat and 
 forfeiture for attainder of treason or corruption of blood, and 
 the innumerable fines and reliefs required by the fuedal law 
 of tenure to be paid to the lord, led to the introduction of Uses 
 and Trusts, which relieved the beneficial owner of all these 
 burdens, and gave him an almost absolute property in the 
 lands. A further impetus was given to their general adoption 
 by the prohibitions imposed by the mafjna charta and the stat- 
 ute of mortmain upon the ecclesiastical corporations to hold 
 and acquire lands. These statutes, recognizing and relating 
 solely to legal estates, only prevented such corporations from 
 holding legal estates. The ecclesiastics, with their customary 
 astuteness, had the lands conveyed to persons who could take 
 and hold them in trust, to permit the corporations to enjoy the 
 benefit thereof. It may be doubtful whether the ecclesiastics 
 were the first to adopt this mode of holding lands, but* to 
 them certainly may be ascribed the honor of devising the 
 means for the enforcement of the confidence reposed in the 
 
 2 See ante, Sees. 213, 220. 
 
 491
 
 325 USES BEFORE THE STATUTE OF USES. [PART II. 
 
 person, to whom the land was conveyed. Finally the civil 
 wars between the houses of Lancaster and York, and the in- 
 creased danger of attainder and confiscation of estates, result- 
 ing from participation in these wars upon one side or the 
 other, caused a large portion of the lands of England to be 
 settled in this manner. 3 It is supposed, with good reason 
 therefor, that the doctrine of uses and trusts was derived 
 from the civil or Roman law, and corresponds, in some re- 
 spects, to what is known in that system of jurisprudence as 
 the fidei commissum* 
 
 325. What is a use? A use or trust is a confidence, 
 which acquired under the operation of the rules of equity the 
 character of an estate, reposed in the person holding the legal 
 estate, who is known as the feoffee to use or trustee, that he 
 shall permit the person designated in the conveyance to the 
 feoffee to use or by the legal owner, and who is called the cestui 
 que use or trust, to enjoy the rents and profits of the land. 
 The use or trust is the beneficial interest in and issuing out of 
 the land, while the legal title remained in the person who was 
 seised to the use. 5 In a court of law he was deemed the 
 
 s 2 Washburn on Real Prop. 384-386 ; 1 Spence Eq. Jur., 439-442 ; Chud- 
 leigh's Case, 3 Rep. 123; 2 Pomeroy Eq. Jur., Sec. 978. 
 
 * 2 Washburn on Real Prop. 386; Bac. Law Tracts 315; Cornish, Uses, 
 10. The fidei commissum of the Roman law, however, could only be 
 created by will, and was designed to give the beneficial interest in prop- 
 erty to those who were otherwise prohibited from taking as .devisee. 
 The testator would direct the heir to transfer the estate to the person 
 designated. This trust was then enforced by the courts. It is, there- 
 fore, more proper to say that the fidei commissum suggested the use, 
 and the mode of enforcing it, than that the use is derived from the 
 Roman law. Saunder's Justinian, 337, 338; 2 Pomeroy Eq. Jur., Sees. 
 976, 977. 
 
 ' 2 Washburn on Real Prop. 388; 2 Bla. Com. 330; Bac. Law Tracts 
 307; Co. Lit. 271 b, Butler's note, 231, Sec. 2; 2 Pomeroy Eq. Jur.. 
 Sees. 978, 979; 1 Spence Eq. Jur. 439-444; Burgess V. Wheate, 1 \V. 
 Bl. 158 ; Tud. Ld. Cas. 252, 253. " An use is a trust or confidence, 
 which is not issuing out of land, but as a thing collateral, annexed in 
 privity to the estate, and to the person, touching the land, scil. that 
 * 492
 
 CH. XIV.] USES BEFORE THE STATUTE OF USES. 326 
 
 owner, brought all the actions for the protection of the prop- 
 erty against trespass, waste and disseisin, and exercised gen- 
 erally the legal rights of an owner. 6 He could even maintain 
 an action of ejectment against the cestui que use. 1 The rights 
 of the cestui que use were not recognized in a court of law. 
 He has no standing in that court, and only obtained an 
 ample remedy for the protection of his estate when the court 
 of chancery assumed jurisdiction. 8 
 
 326. Enforcement of the nse. Before the English court 
 of chancery acquired jurisdiction, the cestui que use was com- 
 pelled to rely upon the good faith of the feoffee to use, al- 
 though there is supposed to have been an inefficient remedy in 
 the spiritual or ecclesiastical courts. But since these courts 
 had no means of enforcing their decrees, and exerted only a 
 spiritual influence over the conscience, the cestui que use was 
 practically dependent upon the honesty of his feoffee to use. 9 
 The ecclesiastics were, of course, greatly concerned in pro- 
 viding a sufficient remedy for their protection and the en- 
 forcement of their uses. The court of chancery was at that 
 time entirely under their control, for the chancellor and other 
 judges of the court were almost always appointed from the 
 clergy. And being learned in the civil law, they readily 
 
 cestui que use shall take the profits, and that the tertenant shall make 
 estates, according to his direction. So that he who hath an use hath 
 not jus neque in re, neque ad rem, but only a confidence and trust, for 
 which he hath no remedy, by the common law, but his remedy was 
 only by subpoena in chancery." Co. Rep. 121, Kirchwey, Read, in Law, 
 Real Prop. 140. 
 
 Tud. Ld. Caa. 252; 2 Bla. Com. 330; 1 Spence Eq. Jur. 442; Chud- 
 leigh's Case, 1 Rep. 121; 2 Pomeroy Eq. Jur. Sec. 979; 2 Washburn on 
 Real Prop. 388. 
 
 T 1 Spence Eq. Jur. 442 ; Tud. Ld. Cas. 253 ; Cudleigh's Case, 1 Rep. 
 121. 
 
 1 Spence Eq. Jur. 456; Co. Lit. 271 b, Butler's note, 231, Sec. 
 2; Pom. Ep. Jur., Sees. 979, 980; Tud. Ld. Cas. 252; Lewin on Tr. 3, 
 4; Co. Rep. 121. 
 
 1 Spence Eq. Jur. 444 ; Tud. Ld. Cas. 252 ; Bac. Law Tracts 307. 
 
 493
 
 327 USES BEFORE THE STATUTE OF USES. [PART II. 
 
 found a precedent in the enforcement of the fidei commissa 10 
 of that system of jurisprudence. With this precedent before 
 him, John De Waltham, Bishop of Salisbury, Master of the 
 Rolls, devised the "writ of subpoena," returnable in chancery, 
 and directed against the feoffee to use, by which he was made 
 to account under oath to the cestui que use for the rents and 
 profits he had received from the land. 11 This writ could at 
 first be issued against the feoffee to use, but not against his 
 heirs and assigns, Subsequently it was made issuable against 
 the heirs and all alienees of the feoffee, who took with notice 
 of the use. 12 The court of chancery then for the first time ac- 
 quired complete jurisdiction over uses and trusts. From that 
 time forward, in the exercise of that jurisdiction, a set of 
 rules has been established for their interpretation and con- 
 struction, which gave to them, as nearly as it was possible or 
 advisable, the character and incidents of legal estates. 13 
 
 327. Distinction between uses and trusts. Although the 
 words uses and trusts were employed before the passage of the 
 Statute of Uses, as if they were synonymous; and although 
 they may be used interchangeably when speaking generally 
 of these equitable estates, as they then prevailed, yet a dis- 
 tinction was made between them according to the permanent 
 or temporary character of the estate. If the right to the 
 rents and profits was permanent that is, of a long duration 
 it was called a use. If the right was only of a temporary 
 character, or given only for special purposes, it was desig- 
 
 ioi Spence Eq. Jur. 436; Bac. Law Tracts 315; Digley, Hist. Real 
 Prop., Chap. VI; Kirchwey, Read, in Law Real Prop. 146. 
 
 11 1 Spence Eq. Jur. 438; 2 Washburn on Real Prop. 389; 1 Pom. Eq. 
 Jur., Sees. 428^31. 
 
 12 1 Spenee Eq. Jur. 445; 2 Washburn on Real Prop. 380; 2 Bla. Com. 
 329; Burgess V. Wheate, 1 W. Bl. 156, 2 Pom. Eq. Jur. Sec. 980. 
 
 132 Washburn on Real Prop. 392; 1 Cruise Dig. 341; 1 Spence Eq. 
 Jur. 435; 2 Bla. Com. 331; Digley, Hist. Real Prop., Chap. VI; 2 
 Pollock & Maitland's Hist. Eng. Law 226. 
 
 494
 
 CH. XIV.] USES BEFORE THE STATUTE OP USES. 329 
 
 nated a trust. 1 * A more radical difference now exists in the 
 present use of these terms, arising out of the change made in 
 equitable estates by the Statute of Uses. 
 
 328. How uses may be created By f eoffment. Since at 
 common law the ordinary conveyance was feoffment with 
 livery of seisin, operating by transmutation of possession and 
 requiring no evidence in writing of such conveyance, a use 
 might have been created before the Statute of Frauds, when 
 employing this mode of conveyance, by a simple declaration of 
 the feoffor at the time that the feoffee was to hold to the use 
 of some other person. 15 The Statute of Frauds, however, re- 
 quires uses and trusts as well as legal estates to be evidenced 
 by some writing signed by the party to be charged. At the 
 present day, therefore, an oral declaration will not be suffi- 
 cient to raise a use. 16 
 
 329. Same Resulting use. As a consequence of the 
 introduction of uses, if one makes a conveyance in fee with- 
 out receiving any good or valuable consideration, equity, pre- 
 suming that one will not part with a valuable estate without 
 receiving in return a consideration, held that the beneficial or 
 equitable interest remained in or resulted to the grantor. He 
 was supposed to have intended that the use should be re- 
 served to himself. This was called a resulting use. It be- 
 came, therefore, a general rule that a conveyance of the legal 
 estate in fee, without a consideration, will not carry with it 
 the beneficial interest unless the facts of the case were such as 
 to rebut the presumption that the feoffor did not intend to 
 part with the beneficial interest. 17 But where the estate con- 
 
 i2 Washburn on Real Prop. 398; 1 Cruise Dig. 246; Tud. Ld. Cas. 
 255; San. Uses, 3, 7; 1 Spence Eq. Jur. 448. 
 
 is 1 Spence Eq. Jur. 449; 2 Washburn on Real Prop. 392; 2 Bla. Com. 
 331. 
 
 i Stat. 29 Car. ii, c. 3, Sees. 7, 8; 2 Washburn on Real Prop. 500, 501 ; 
 Saund. Uses 229 ; Tud. Ld. Cas. 266. 
 
 " 3 Washburn on Real Prop. 393; 1 Spence Eq. Jur. 451; 2 Bla. Com. 
 
 495
 
 329 USES BEFORE THE STATUTE OF USES. [PART II. 
 
 veyed was less than a fee, there was no resulting use, as the 
 duties and liabilities attached to an estate for life, for years 
 and in tail, were considered a sufficient consideration to pre- 
 vent the use resulting to the grantor and, also, because the 
 retention of a part of the estate negatives the presumption 
 that he did not intend to part with the beneficial interest in 
 the part which he did convey. 18 The use can result only to 
 the grantor and his heirs. 19 And for the purpose of carrying 
 the use to the feoffee, the smallest nominal consideration was 
 sufficient. It need not be stated in the deed if an actual con- 
 sideration had passed between the parties; on the other hand, 
 if there is an acknowledgment of the receipt of the considera- 
 tion in the deed of conveyance, there need be no actual con- 
 sideration, since the parties to the deed will be estopped from 
 denying it. 20 Nor is a consideration necessary where the 
 deed expressly declares to whose use the land shall be held. 
 But if only a part of the use is declared by the deed, the 
 remainder would result to the grantor, in the same manner 
 as if no use had been limited, unless the use declared is limited 
 
 331; Lloyd v. Spillett, 2 Atk. 150; 2 Pom. Eq. Jur., Sec. 981; Osborn 
 v. Osborn, 26 N. J. Eq. 385. " Two kinds of consideration alone were 
 regarded as affording a sufficient motive; these were blood and money. 
 . . . If no proper evidence of either of these motives existed, the 
 beneficial interest resulted, or came back to the donor." Digby Hist. 
 Real Prop., Ch. 6; Kirchwey, Read, in Law Real Prop. 153; Sugd. Gilb. 
 Uses, p. 125 et sub. 
 
 isi Prest. Est. 192; 1 Cruise Dig. 376; 1 Spence Eq. Jur. 452; 2 
 Washburn Real Prop. 396; Tud. Ld. Cas. 258. 
 
 192 Washburn on Real Prop. 393, 394; 1 Prest. Est. 195; 1 Cruise 
 Dig. 373. 
 
 201 Spence Eq. Jur. 450, 451; 2 Bla. Com. 329; Tud. Ld. Cas. 255; 
 Lewin on Tr. 27 ; Squire v. Harder, 1 Paige 494 ; Bk. of U. S. v. House- 
 man, 6 Paige 526; Titcomb V. Morrill, 10 Allen 15; 1 Greenl. on Ev., 
 Sec. 26; Griswold V. Messenger, 6 Pick. 517; Bragg v. Geddes, 93 111. 39; 
 Bartlett v. Bartlett, 14 Gray 277; Gerry V. Stimpson, 60 Me. 186; Wilt 
 V. Franklin, 1 Binn. 518; Boyd V. McLean, 1 Johns. Ch. 582; Farrington 
 v. Ban, 36 N. H. 86; Maigly v. Hauer, 7 Johns. 341; Shepherd v. 
 Little, 14 Johns. 210; 2 Washburn on Real Prop. 394; Gould v. Linde, 
 114 Mass. 366; Graves V. Graves, 29 N. H. 129; Cairns V. Colburn, 104 
 Mass. 274. 
 496
 
 CH. XIV.] USES BEFORE THE STATUTE OF USES. 330 
 
 to the grantor, when the remainder will be in the feoffee. 21 
 Where, however, the use in remainder is limited by will, and 
 there is no disposition of the use during the life of the trustee, 
 particularly where the trustee is the wife or other near rela- 
 tive of the testator, a use is held to be limited by implication 
 in the trustee for his or her life. 22 The doctrine of resulting 
 uses has been abolished by statute in some of the States. 
 
 330. Same By simple declarations. Not only could 
 uses be raised by a declaration to that effect, made in con- 
 nection with a feoffment or other common-law conveyance, 
 as above explained, but also by a simple declaration made by 
 the legal owner that he held the land to the use of another. 2 * 
 But since a court of equity lends its aid only to the prevention 
 of an injury or wrong (injuria), and will not enforce mere 
 voluntary obligations, these declarations, when made inde- 
 pendently of a common-law conveyance, had to rest upon a 
 consideration, in order that they might be enforced. If the 
 declaration was made to a stranger, a valuable consideration 
 was required, but it need not be a substantial one; while in 
 the case of a declaration to a near blood-relation, a good con- 
 sideration, natural love and affection, would answer. 24 And 
 
 21 1 Spence Eq. Jur. 449, 511; 2 Bla. Com. 329; Lloyd v. Spillett, 2 
 Atk. 68; Lampleigh V. Lampleigh, 1 P. Wins. 112; St. John f. Benedict, 
 23 a; Tud. Ld. Cas. 258; 1 Prest. Est. 191, 195; Pibua v. Mitford, 1 
 Ventr. 372; Tipping V. Cozzens, 1 Ld. Raym. 33; Volgen V. Yates, 5 
 Seld. 223; Farrington v. Barr, 36 N. H. 88; Sir Edw. Clerc's Case, 6 
 Rep. 17; Kenniston v. Leighton, 53 N. H. 311; Graves v. Graves, 9 
 Post. 129; Sprague v. Woods, 4 Watts & S. 192; Walker v. Walker, 2 
 Atk. 68; Lampleigh v. Lampleigh, 1 P. Wms. 112; St. John f. Benedict, 
 6 Johns. Ch. 116; Capen v. Richardson, 7 Gray 370; Altham v. An- 
 glesea, 11 Mod. 210; Boyd v. McLean, 1 Johns. Ch. 582; Peabody v. 
 Tarbell, 2 Cush. 232; Adams v. Savage, 2 Salk. 679; Rawley v. Hol- 
 land, 2 Eq. Cas. Abr. 753; 1 Cruise Dig. 376; Roe v. Popham, Dougl. 
 (Mich.) 25; McCown v. King, 23 S. C. 232; Gove . Learoyd, 140 
 
 Mass. 524. 
 
 22 Fisher v. Fisher, 41 N. J. Eq. 16. 
 
 23 See post, Sec. 373. 
 
 242 Bla. Com. 329; Co. Lit. 271 b, Butler's note 231; Tud. Ld. Cas. 
 268; 1 Spence Eq. Jur. 450; 2 Washburn on Real Prop. 394. 31)5. 
 
 32 497
 
 331 USES BEFORE THE STATUTE OF USES. [PART II. 
 
 under this rule equity always construed a contract of sale or 
 agreement to convey as a declaration to use, and would en- 
 force it, if the requisite consideration was present. 20 The 
 Statute of Frauds now requires all such declarations to be 
 proved by some instrument in writing. 26 
 
 331. Who might be feoffees to use and cestuis que use. 
 As a general proposition, all persons who could be grantees in 
 a common-law conveyance can be either feoffees to use or 
 cestuis que use, infants and married women not excepted. 
 The married woman, as feoffee to use, would hold the legal 
 estate free from any attaching rights of her husband, and, 
 as cestuis que use, enjoy the beneficial interest as freely as if 
 she were single. Her husband acquires no rights in the 
 equitable estate, since they attach and relate to only legal 
 estates. 27 Corporations can be cestuis que use. 28 It was 
 formerly held that corporations could not be feoffees to use, 
 it being supposed impossible to enforce the performance of the 
 use, on account of the intangible, soulless character of the cor- 
 poration. That doctrine has now been exploded, and courts 
 of equity can enforce their decrees just as effectively against 
 corporations as against natural persons. It is, therefore, the 
 prevailing rule in this country that corporations may hold 
 lands as feoffees to use, provided the limitations of their char- 
 ters do not make such a conveyance foreign to the purposes of 
 their creation. 29 
 
 26 2 Washburn on Real Prop. 397 ; 1 Spence Eq. Jur. 452, 453. 
 
 2 See post, Sec. 374. 
 
 ZT Tud. Ld. Gas. 254 ; 4 Kent's Com. 293 ; Egerton V. Brownlow, 4 H. 
 L. Cas. 206; Saund. Uses 349; Hill, Trust. 52; Pinson V. Ivey, 1 Yerg. 
 325; Springer v. Berry, 48 Me. 338; Claussen v. La Franz, 1 Iowa 237; 
 2 Washburn on Real Prop. 391, 392; 1 Cruise Dig. 340. It is here meant 
 that the husband's rights during coverture do not attach to the wife's 
 equitable estate. But he has curtesy in such estates, unless expressly 
 excluded. See ante, Sec. 79. 
 
 28 Cruise Dig. 354; 2 Washb. on Real Prop. 391; Tud. Ld. Cas. 254. 
 
 28 Ang. & Ames on Corp., Ch. 2, Sees. 6-8 ; 2 Washburn on Real Prop. 
 391; Vidal v. Girard, 2 How. 127; Sutton v. Cole, 3 Pick. 232; Phil- 
 498
 
 CH. XIV.] USES BEFORE THE STATUTE OF USES. 333 
 
 332. What might be conveyed to uses. Every species of 
 real pjjpperty, which is comprehended under the terms lands, 
 tenements and hereditaments, both corporeal and incorporeal, 
 may be the subject of conveyance to uses. 30 At an early 
 period it was held necessary for the grantor to be possessed of 
 an estate of which seisin could be predicated, in order that a 
 use might be created out of it. 31 But this doctrine has long 
 since been abandoned, and chattels, both real and personal, 
 can now be settled to uses. But since a mortgage is treated 
 in equity as a lien, instead of an estate in lands, there can 
 be no conveyance of it to uses, i. e., independently of the debt. 
 The debt may be conveyed to uses, and the mortgage would 
 follow as an incident of the debt. 32 
 
 333. Incidents of uses. As uses, considered as estates 
 in lands, were the mere creatures of equity, and acquired in 
 the early days of their existence no actual recognition in a 
 court of law, the court of chancery, in establishing rules for 
 the government and construction of them, while following to 
 some extent the analogies of the law in relation to legal es- 
 tates, adopted only such rules of the common law as were 
 consistent with the intended character of this equitable estate. 
 It, therefore, discarded the doctrines of feudal tenure and 
 seisin altogether. Nor did the court at first recognize in uses 
 the rights of dower and curtesy. Uses were also held to be 
 not liable to levy and sale under execution ; nor were they for- 
 feited to the crown upon attainder until the statute of 33 Hen. 
 
 lip's Academy r. King, 12 Mass. 540. " The feoffee to uses must be an 
 individual eapable of the conscientious obligation. Hence, a body cor- 
 porate is incapable of holding to the use of any one. Nor were aliens* 
 or persons attainted, or the king, capable of holding to a use." Digby 
 Hist. Real Prop., Ch. 6; Kirchwey, Read, in Law Real Prop. 151. 
 
 302 Washburn on Real Prop. 391; 2 Bla. Com. 331. 
 
 si 2 Bla. Com. 331; 1 Cruise Dig. 340; Tud. Ld. Cas. 259. 
 
 32 2 Washburn on Real Prop. 408 ; Merrill v. Brown } 12 Pick. 220. 
 
 499
 
 335 USES BEFORE THE STATUTE OP USES. [PART II. 
 
 VIII, ch. 20, See. 2. 33 But they were descendible to the heirs, 
 in conformity with the common law of descents. 34 
 
 334. Alienation of uses. For the same reasons, the re- 
 strictions imposed upon the common-law power of alienation 
 were not applied to uses. There is no limitation upon the 
 alienation of uses, except that imposed by the Statute of 
 Frauds. Before the passage of that statute no formal assign- 
 ment in writing was required ; a simple direction to the trus- 
 tee to pay over the rents and profits to the assignee was 
 sufficient. These directions the trustee was bound to follow, 
 and obedience could be enforced in like manner as in the 
 case of the original cestui que use. 36 But the assignment of 
 the use necessarily had no effect upon the legal estate in the 
 trustee, unless he joined in the conveyance. 30 And then the 
 formalities required in all common-law conveyances must have 
 been complied with in order to pass the legal estate. 
 
 335. Estates capable of being created in uses. When one 
 has an unlimited use, i. e., a use in fee, whether alone or 
 merged in the legal estate, there is no limitation upon the 
 number and kinds of estates which might be carved out of it. 
 Not only may all the estates known to the common law be 
 
 33 2 Washburn on Real Prop. 395, 399 ; 1 Spence Eq. Jur. 455, 456, 
 460; 1 Washburn on Real Prop. 297; 2 Bla. Com. 331; Jackson v. Catlin, 
 2 Johns. 261. Uses are now very generally held to be subject to the 
 husband's right of curtesy. See ante, Sec. 79. " The legislature, at a 
 very early date, interferred, in the interest of creditors, to render uses 
 liable to be taken in ej eution for debt." Digby Hist. Real Prop., Ch. 
 7, Sec. 1 ; Kirchwey, Read, in Law Real Prop. 155. 
 
 3*2 Bla. Com. 329; 1 Spence Eq. Jur. 454. 
 
 ss 2 Cruise Dig. 342 ; 1 Spence Eq. Jur. 454. The Statute of Frauds 
 required all trusts and confidences to be proved by some writing. 29 
 Car. 2, Ch. 3. " When the interest ... of cestui que use had been 
 created, that interest might without any formality, by words or acts, 
 evidencing the intention, be transferred, by cestui que use, to any one 
 capable of taking a use." Digby Hist. Real Prop., Ci. 6. Kirchwey, 
 Read, in Law Real Prop. 154. 
 
 862 Washburn on Real Prop. 396; 2 Bla. Com. 331. 
 500
 
 CH. XIV.] USES BEFORE THE STATUTE OP USES. 336 
 
 created, such as in tail, for years, for life, in remainder 
 vested or contingent, upon condition and upon limitation, 37 
 but other estates and interests may be limited which are un- 
 known to the common law, and violate its most inflexible rules. 
 Thus, an estate in freehold in the use may be created to com- 
 mence in the future without a particular estate to support it, 
 whether it be vested or contingent. Or the grantor may 
 limit the use in such a manner as to pass from one to another 
 upon the happening of a contingency; or he may reserve to 
 himself or grant to another the power to divest the present 
 cestui que use and vest the use in another to be appointed, or 
 simply by such destruction of the prior use to cause the use 
 to revert to the grantor. These limitations were impossible 
 at common law. 38 And in construing the limitations of uses, 
 the strict technical rules are not observed, the intention gov- 
 erning in each case. A fee might, therefore, be created in the 
 use without an express limitation to heirs, if the intention to 
 create such an estate is manifested in any other way. 39 
 
 336. Disposition of uses by will. Under the feudal sys- 
 tem, lands could not be disposed of by will. But uses were 
 held to be capable of devise without limitation; and until 
 the passage of the Statute of Wills, 32 Hen. VIII, which made 
 lands divisible by law, as they were under the Saxon law 
 before the Norman conquest, it was a common custom to con- 
 vey lands to the use of the grantor, which he could then dis- 
 pose of by will as well as by deed. 40 The Statute of Wills 
 
 37 1 Spence Eq. Jur. 455 ; 1 Cruise Dig. 343 ; 2 Washburn on Real 
 Prop. 397. 
 
 382 Washburn on Real Prop. 397, 398; 1 Cruise Dip. 343; 1 Spence 
 Eq. Jur. 455; Chudleiph's Case, 1 Rep. 135; Shelley's Case, 1 Rep. 101; 
 Fearne Cont. Rem. 284. 
 
 so i Spence Eq. Jur. 452; Tud. Ld. Cas. 253; 2 Washburn on Real 
 Prop. 395. 
 
 o"It should be remembered that no formality, not even writing, 
 was required to establish a will ; any evidence of the expression of the 
 intention of a testator, would be sufficient to raise a use, by which the 
 
 501
 
 337 USES BEFORE THE STATUTE OF USES. [PART II. 
 
 obviated the necessity of such a conveyance in respect to all 
 persons who were empowered by that statute to devise lands. 
 As married women were expressly excluded from the benefit 
 of the statute, this practice of conveying to uses to enable 
 a disposition by will still obtained as to them. The will in 
 such cases only operates as an assignment or devise of the 
 use, or, if it be executed under a power of appointment, as 
 a declaration or appointment of a use, and the legal estate 
 remains unaffected in the hands of the trustee. But in 
 chancery the equitable interests thus acquired by the devisee 
 would receive as complete a protection as those of an as- 
 signee or grantee inter vivos.* 1 
 
 337. How lost or defeated. The enforcement, and hence 
 the validity of a use, depends upon a privity of estate and 
 person, existing between the feoffee and cestui que use in 
 relation to the land. Before the Statute of Uses, any act of 
 the feoffee by which this privity was destroyed, would defeat 
 the use also. If the feoffee lost his seisin by being disseised, 
 or he disposed of the land by deed to a purchaser for con- 
 sideration and without notice of the use, the use would be 
 defeated, whether it was vested or contingent, in possession or 
 in remainder. But a conveyance to one with notice, or with- 
 out consideration, or a descent of the lands to the heirs of the 
 feoffee would not affect the use. The use could still be en- 
 forced against the assignee or heir. 42 Where the feoffee was 
 disseised, he alone could recover the seisin according to the 
 common law, and the cestui que use could not enforce the use 
 against the disseisor. And, although even now the disseisin 
 of the trustee is likewise a disseisin of the cestui que use, and 
 
 next legal owner would be bound." Digby, Hist. Real Prop. Ch. 6; 
 Kirchwey, Read, in Law, Real Prop. 155. 
 
 Co. Lit. 27 Ib, Butler's note 231; Tud. Ld. Gas. 268; 2 Bla. Com. 
 329 ; 2 Washburn on Real Prop. 395, 396 ; 6 Cruise Dig. 3, 4. 
 
 Co. Lit. 37 Ib, Butler's note 231, Sec. 2; Tud. Ld. Cas. 254; Lewin 
 on Tr. 2; 2 Washburn on Real Prop. 389, 400; 1 Spence Eq. Jur. 456; 
 Chudleigh's Case, 1 Rep. 120. 
 502
 
 CH. XIV.] USES BEFORE THE STATUTE OP USES. 337 
 
 if continued for a sufficient length of time, would bar both 
 the equitable and legal estates, yet at present, the cestui que 
 use may, upon his own motion, and without the co-operation 
 of his trustee, have the disseisor declared a trustee, holding 
 the legal estate subject to the use.* 8 
 
 43 See preceding note ; 1 Spence Eq. Jur. 501 ; 1 Cruise Dig. 403. 
 
 503
 
 SECTION II. 
 
 USES UNDER THE STATUTE OF USES. 
 
 SECTION 338. History of the Statute of Uses. 
 
 339. When statute will operate. 
 
 340. A person seised to a use and in esse. 
 
 341. Freehold necessary. 
 
 342. Use upon a use. 
 
 343. Feoffee and cestui que use Same person. 
 
 344. A use in esse. 
 
 345. Cestui que use in esse. 
 
 346. Words of creation and limitation. 
 
 347. Active and passive uses and trusts. 
 
 348. Uses to married women. 
 
 349. Cases in which the statute will not operate. 
 
 338. History of the Statute of Uses. As has been stated 
 in the preceding section, uses became a very common mode of 
 limiting estates. In consequence of the equitable and un- 
 certain character of the use, and its freedom from the burdens 
 of common-law estates, its popularity gave rise to the constant 
 perpetration of frauds upon the legal rights of others. 
 1 ' Heirs were unjustly inherited ; the king lost his profits of at- 
 tainted persons, aliens born, and felons ; lords lost their wards, 
 marriages, reliefs, heriots, escheats, aids; married men lost 
 their tenancies by the curtesy, and women their dower; pur- 
 chasers were defrauded; no one knew against whom to bring 
 his action, and manifest perjuries were committed. ' ' 44 Sev- 
 eral attempts were made by the enactment of statutes to check 
 these abuses, notably a statute in the reign of Richard III 
 (1 R. Ill, ch. 1), but to no avail. Means of avoiding the 
 operation of these statutes were soon discovered, and the 
 abuses were as grievous after as they were before their en- 
 
 "I Sugd. Pow. (ed. 1856) 78. 
 
 504
 
 CH. XIV.] USES UNDER THE STATUTE OF USES. 338 
 
 actment. Finally the statute of 27 Hen. VIII, eh. 10, the 
 celebrated Statute of Uses, was passed by parliament. 45 The 
 evident intention of the legislator was to abolish the doctrine 
 of uses altogether by the statutory transfer of the legal estate 
 from the feoffee to use to the cestui que use in every case, 
 whatever may be the limitations upon the use. But the stat- 
 ute met with the most determined opposition from the bench 
 and bar. Notwithstanding the many alleged frauds which 
 could be committed by an abuse of the doctrine, public senti- 
 ment was opposed to its absolute destruction, and was in favor 
 of preserving the power of creating an equitable estate in 
 the nature of a use. And notwithstanding the remedial char- 
 acter of the statute, it received at the hands of the profession 
 
 45 The statute enacted that " where any person or persons stood or 
 were seized, or at any time thereafter should happen to be seized, of 
 and in any honours, castles, manors, lands, tenements, rents, services, 
 reversions, remainders, or other hereditaments, to the use, confidence 
 or trust of any other person or persons, or of any body politic, by 
 reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, 
 agreement, will or otherwise, by any manner of means whatsoever it be; 
 that in every such case all and every such person and persons and 
 bodies politic, that have or hereafter shall have, any such use, confi- 
 dence or trust, in fee simple, fee tail, for term of life, or for years or 
 otherwise, or any use, confidence or trust in remainder <or reverter, 
 shall from henceforth stand and be seized, deemed and adjudged in 
 lawful seisin, estate and possession, of and in the same honours, castles, 
 manors, lands, tenements, rents, services, reversions, remainders, or 
 other hereditaments, with their appurtenances, to all intents, construc- 
 tions and purposes in the law, of and in such like estates as they had 
 or shall have in the use, confidence or trust of or in the same; and 
 that the estate, title, right and possession, that was in such person or 
 persons, that were or hereafter shall be seized of any lands, tenements 
 or hereditaments to the use, confidence or trust of any such person or 
 persons, or of any body politic, be from henceforth clearly deemed and 
 adjudged to be in him or them that have or hereafter shall have such 
 use, confidence or trust, after such quality, manner, form and condition- 
 as they had before, in or to the use, confidence or trust that was in 
 them." This statute has either been adopted in the different States 
 of this country as part of the common law, or substantially re-enacted, 
 so that it prevails generally throughout the United States. 2 Pom. Eq. 
 .Jur., Sec. 530, note 1; Perry on Tr. 299. 
 
 505
 
 340 USES UNDER THE STATUTE OF USES. [PART II. 
 
 a strict and technical construction, and was permitted to 
 operate only so far as it was impossible to render nugatory its 
 express provisions. Instead of destroying uses, the statute 
 only established them upon a firmer basis. By a remarkable 
 course of judicial construction At was practically legislation 
 the modern doctrine of trusts arose, which obtains to this 
 day, and which includes every species of equitable estate 
 which, under the statute, is capable of creation without being 
 merged into the legal estate. 
 
 339. When statute will operate. The Statute of Uses 
 will only operate upon a conveyance to uses, and transfer the 
 legal to the holder of the equitable title, when the following 
 three elements are present: First, a person seised to a use, 
 and in esse; second, a cestui que use in esse; and third, a use 
 in esse.* 9 
 
 340. A person seised to a use and in esse. Any person 
 who was capable of being seised before the statute would sat- 
 isfy the requirements. And although at first it was supposed 
 and held, that aliens and corporations could not be seised to 
 uses, at the present day there is no such restriction. In re- 
 gard to alien feoffees to iuse, the general rules of equity relat- 
 ing to trusts will apply, and prevent the failure of the use 
 because of their incapacity to hold the seisin. 47 And in this 
 country corporations are included under the term "persons," 
 and may be seised to uses if under the limitations their char- 
 ters permit of such holding. 48 But the person seised must be 
 
 1 Cruise Dig. 349 ; 2 Washburn on Real Prop. 407. 
 
 2 Washburn on Real Prop. 408 ; 1 Cruise Dig. 349 ; Bac. Law Tracts 
 347, 348. 
 
 *Sutton v. Cole, 3 Pick. 240; U. S. v. Amedy, 11 Wheat. 392; Vidal 
 r. Girard, 2 How. 127 ; Bethlehem Borough v. Perseverance Fire Co., 
 81 Pa. St. 445; First Parish, etc., v. Cole, 3 Pick. 232-237. But if the 
 use or trust is foreign to the purposes of its institution, the corpora- 
 tion cannot hold the seisin or legal estate. A new trustee must be ap- 
 pointed to take its place. Matter of Howe, 1 Paige 214; Sloan v. Me- 
 506
 
 CH. XIV.] USES UNDER THE STATUTE OP USES. 341 
 
 in esse. If by reason of the limitations of the conveyance the 
 foe/fee to use is uncertain, as he would be if the legal estate 
 upon which the use depends is a contingent remainder, the 
 statute cannot operate until the contingency happens, upon 
 which the remainder becomes vested. 40 
 
 341. Freehold necessary. Seisin cannot be predicated 
 of leasehold estates. In order, therefore, that the statute may 
 take effect, the estate in the feoffee to use must be a freehold 
 for the reason that the statute only provides for the transfer 
 of the legal estate where one is seised to the use of another. 
 All leaseholds held to uses remain unexecuted as before the 
 statute, and the uses are enforceable only in a court of equity. 
 It was once supposed that the freehold must be greater than 
 a life estate; but it is now held that any freehold estate is 
 sufficient, including life estates and all estates of inheritance. 50 
 If the freehold, upon which the use depends, is not commen- 
 surate with the use, the use will be valid, and will be executed, 
 only as far as the legal estate extends. If the legal estate 
 in the feoffee is only a life estate, the use is good only for 
 that time, even though the limitation of the use be in terms 
 a fee simple. 61 But it is probable at the present day that the 
 rule would be so far relaxed as to make the legal estate by 
 construction co-extensive with the use, unless a smaller estate 
 is expressly limited, in conformity with the rule governing 
 the same question in its connection with the doctrine of 
 
 Conahy, 4 Ohio 157; Jackson V. Hartwell, 8 Johns. 422; Mason v. M. 
 E. Church, 27 N. J. Eq. 47. 
 
 2 Washburn on Real Prop. 408; Bac. Law Tracts 349. 
 
 51 Cruise Dig. 350, 351, 353; Tud. Ld. Cas. 257-259; Galliers t?. 
 Moss, 9 B. & C. 267; 1 Prest. Est. 190; 1 Spence Eq. Jur. 466^*90; 
 Ashhurst v. Givens, 5 Watts & S. 327 ; Merrill v. Brown, 12 Pick. 220. 
 
 si Tud. Ld. Cas. 259; Sandf. on Uses 109; Jenkins 0. Young, Cro. 
 Car. 230 ; 2 Washburn on Real Prop. 409. 
 
 507
 
 342 USES UNDER THE STATUTE OF USES. [PART II. 
 
 trusts. 52 And an estate tail has been held sufficient to support 
 a use in fee simple. 58 
 
 342. Use upon a use. Since seisin requires a legal estate, 
 and the person, out of whom the legal estate is to be drawn 
 by the statute, and transferred to the cestui que use, was 
 required to be seised, the courts have held that the statute can 
 only execute the first use, and can have no effect upon the 
 second or other use depending upon the first. For example, 
 an estate is limited to the use of A. to the use of B. The 
 statute can execute the use in A., but cannot go further and 
 transfer the legal estate to B., the final and actual cestui que 
 use, because by the strict construction of the statute the 
 legal estate can only pass from persons who were seised of 
 the legal estate under the deed. A. had only a use, and 
 therefore was not seised. But inasmuch as after the execu- 
 tion of the use the cestui que use was to hold the legal estate 
 in "such quality, manner, form and condition" as he had 
 in the use, A. in the case supposed would hold the legal estate 
 to the use of B., and accountable to B. in equity for the rents 
 and profits. 54 
 
 52 Doe v. Nichols, 1 B. & C. 336 ; Doe v. Ewart, 7 A. & E. 636 ; Nor- 
 ton v. Norton, 2 Sandf. 296; Barker v. Greenwood, 4 M. & W. 421; 
 Renzichausen v. Keyser, 48 Pa. St. 351. See post, Sec. 371. 
 
 53 1 Cruise Dig. 352 ; 2 Washburn on Real Prop. 409. 
 
 54 2 Washburn on Real Prop. 406, 409, 457, 460, 461 ; Tyrell's Case, 
 Dyer 155, 1 Co. Rep. 136 b, 187; Croxall v. Shererd, 5 Wall. 282; 
 Wyman v. Brown, 50 Me. 157; Hopkins v. Hopkins, 1 Atk. 591; Willett 
 V. Sanford, 1 Ves. Sr. 186; 2 Pom. Eq. Jur., Sec. 985. The rule above 
 enunciated, that a use cannot be limited upon a use, has been abolished 
 by statute in New York, California, Michigan, Minnesota, and Wiscon- 
 sin. See post, Sec. 347, note. And it has also been disapproved and 
 adversely commented on by the Massachusetts court. Thatcher V. 
 Omans, 3 Pick. 521, 528. But it is, perhaps, generally recognized in 
 this country wherever it has not been changed by statute. And, basing 
 their conclusions upon this doctrine, the courts have held that where 
 in a deed of bargain and sale the estate is limited to the bargainee to 
 the use of another, it is such a use upon a use as will not be executed 
 by the statute. See Guest v. Farley, 19 Mo. 147; Jackson v. Myers, 3 
 
 508
 
 CH. XIV.] USES BEFORE THE STATUTE OF USES. 343 
 
 343. Feoffee and cestui que use Same person. Where 
 the feoffee to use and the cestui que use are the same person, 
 there is a merger of the equitable in the legal estate without 
 the aid of the Statute of Uses. He takes an absolute estate 
 at common law, unless such a merger would defeat the pur- 
 poses of the conveyance. 55 Nor would there be a merger, if 
 the use to the feoffee was not as extensive as the legal estate 
 which is conveyed to him, as where the estate is a fee, and his 
 use is a life interest, or he takes the use jointly with another. 
 In such cases the use could only be executed by the statute. 56 
 But, nevertheless, if a use is limited upon the use of the 
 feoffee, it will be construed such a limitation of a use upon 
 the use as to preclude the execution of the second use. Thus, 
 in a conveyance to A. to the use of A. to the use of B., al- 
 though, in the absence of the use to B., A. would have been 
 held to be in possession of the legal estate at common law by 
 the merger of the equitable in the legal estate, yet this express 
 limitation to his use will prevent the operation of the statute 
 upon the use in B. A. would hold the legal estate, and the 
 use in B. would remain unexecuted. 57 In some of the States 
 
 Johns. 388, 396; Jackson V. Gary, 16 Johns. 302; Croxall V. Shererd, 
 supra; Price v. Sisson, 2 Beas. 168. This is, however, only the case 
 with a pure bargain and sale deed. When such a limitation occurs in 
 a modern deed of conveyance, which might be treated as a common-law 
 conveyance, as well as a bargain and sale, and such is supposed to be 
 the case where the operative words are " grant, bargain and sell," or 
 " give, grant, bargain and sell," the use would presumably be executed 
 by the statute, the bargainee or grantee having acquired the seisin and 
 the legal estate by force of the deed as a common-law conveyance. 
 
 55 2 Prest. Conv. 481; Co. Lit. 271 b, Butler's note 231; 1 Cruise Dig. 
 354 ; Tud. Ld. Cas. 257 ; Jackson v. Cary, 16 Johns. 302. 
 
 5 1 Cruise Dig. 357 ; Tud. Ld. Cas. 258 ; Sammes' Case, 13 Rep. 56 ; 
 Sand, on Uses 94, 96. 
 
 57 Doe v. Passingham, 6 B. & C. 305, 317; Williams on Real Prop. 
 161; Tud. Ld. Cas. 268; Doe v. Martin, 4 T. R. 89; 2 Smith Ld. Cas. 
 454; Whetstone V. Bury, 2 P. Wms. 146; 1 Sugden on Pow. 168, 169; 
 Moore V. Shultz, 13 Pa. St. 98; Hayes V. Tabor, 41 N. H. 521, 526; 
 Atty.-Gen. v. Scott, Cas. temp. Talb. 138; Price v. Sisson, 2 Beas. 168, 
 173, 174; 2 Bla. Com. 336; Franciscus v. Reigart, 4 Watts 118. Contra, 
 Hurst v. McNiel, 1 Wash. C. Ct. 70. 
 
 509
 
 344 USES UNDER THE STATUTE OF USES. [PART II. 
 
 this doctrine concerning the effect of a use upon a use has 
 been abolished by statute, and the legal title is made to pass 
 through all the intermediate cestuis que use until the final 
 and actual beneficiary is reached, when it becomes vested in 
 him. 58 
 
 344. A use in esse. It matters not whether the use is 
 one in possession, reversion, or remainder, if the vesting of 
 the title thereto is not contingent, it is a use in esse, and will 
 be executed at once by the statute. If the use is one in pos- 
 session it will be executed immediately, both in title and in 
 possession. If it is to commence in the future it is called, 
 according to the terms of the limitation, a contingent, spring- 
 ing, or shifting use, and will be considered in a subsequent 
 section. 59 Nor is it important in what manner the use is 
 created, whether by express limitation or by law, as in the* 
 case of a resulting use, however the use arises, if Jt is in esse, 
 i. e., vested, the statute will execute it. 60 If the use is contin- 
 gent, the use is not in esse until the happening of the con- 
 tingency upon which its vesting depends, when it will be 
 executed in the same manner as if it had been vested from 
 the time of its creation. 81 A contingent use cannot be exe- 
 cuted by the statute of uses into a legal estate, because the 
 transfer of the seisin would give the cestui que use a vested 
 estate, while he had in the use only a contingent estate. And 
 the statute required that the cestui que use should take the 
 seisin or legal estate "in such quality, manner, form and 
 condition," as he had the use. 
 
 88 See ante, Sec. 342, note; and post, Sec. 349, note. 
 
 5 See post, Sees. 350, 357. 
 
 ool Cruise Dig. 358; Hopkins v. Hopkins, 1 Atk. 591; Chudleigh'a 
 Case, 1 Rep. 126; Osman v. Sheafe, 3 Lev. 370; Doe v. Salkeld, Willes, 
 674; 2 Smith's Ld. Cas. 288, 297; Hays V. Kershaw, 1 Sandf. Ch. 258: 
 Tud. Ld. Cas. 262. 
 
 Chudleigh's Case, 1 Rep. 126; Tud. Ld. Cas. 262; Shep. Touch. 
 Prest. ed. 529 n; Sand, on Uses 110; 1 Sugden Pow. 41. See post. 
 Sees. 351, 353. 
 510
 
 CH. XIV.] USES UNDER THE STATUTE OF USES. 346 
 
 345. Cestni que use in esse. There must, furthermore, 
 be some ascertained person in esse who is to take and who can 
 take the use under the conveyance. As a general proposition, 
 subject to an exception to be mentioned elsewhere, 62 the char- 
 acter of the cestui que use will not affect the execution of the 
 use. Any person in esse will fullfil the requirements of the 
 statute. 63 But if the cestui que use is not in esse, or not 
 ascertained, the use is future and contingent, and the opera- 
 tion of the statute is suspended until the cestui que use is 
 known. 64 If a future use is to vest upon the happening of 
 some contingency independent of human action, it is called a 
 contingent, springing, or shifting use. But if the uncertainty 
 or contingent character is to be settled by the act of some 
 person or persons designated by the grantor or testator, then 
 the limitation, although in fact nothing more than a contin- 
 gent future use, receives the name of a power. 65 
 
 346. Words of creation and limitation. No special form 
 of expression or set of words is necessary in the creation of 
 uses, provided such words are used, as clearly show the in- 
 tention of the grantor that a use was to be declared in favor 
 of another. The Statute of Uses employs the words "use, 
 confidence, or trust," and it would accordingly be safer to 
 adopt one of these words, although it is not necessary.*" 5 Al- 
 though the employment of technical words of limitation was 
 not necessary in the creation of a use before the statute, 67 and 
 since the statute they are not always necessary in the limita- 
 tion of equitable estates which are not executed by the statute, 
 
 2 See post, Sec. 348. 
 
 s 1 Cruise Dig. 354; 2 Washburn on Real Prop. 410. 
 
 1 Cruise Dig. 354; 2 Bla. Com. 336; Jackson v. Myers. 3 Johns. 
 388; Reformed Dutch Church v. Veeder, 4 Wend. 494; Ashhurst v. 
 Given, 5 Watts & L. 323. See post, Sec. 351. 
 
 e 2 Washburn on Real Prop. 420 ; Shep. Touch. Prest. ed. 529 n. 
 
 2 Washburn on Real Prop. 411; Tud. Ld. Cas. 258. 
 
 T 1 Spence Eq. Jur. 452; 1 Cruise Dig. 343; Tud. Ld. Cas. 253; 2 
 Washburn on Real Prop. 395. 
 
 511
 
 347 USES UNDER THE STATUTE OF USES. [PART II. 
 
 and which properly fall under the head of trusts, 08 yet if 
 the statute does operate the use will be valid for the pur- 
 pose of execution, only so far as the words of limitation are 
 capable of limiting similar estates at common law. The word 
 "heirs" is therefore necessary to a use in fee, where the com- 
 mon law in respect to words of limitation has not been 
 changed by statute, and its absence cannot be supplied by 
 words of similar import. A conveyance, therefore, to the use 
 of A. and the issue of his body would be neither an estate 
 tail nor a fee simple, and A. would take only a life estate. 09 
 
 347. Active and passive uses and trusts. Both before 
 and after the passage of the statute, uses and trusts have 
 been divided into active and passive. Where the feoffee to 
 use was required to perform some duty in respect to the 
 estate, the use was an active one. Where the feoffee had 
 nothing to do but to hold the legal title and seisin for the 
 support of the use, it was called passive. Now, since the 
 feoffee can perform these duties only as long as he retains the 
 legal estate, the statute could not execute an active use or 
 trust without defeating the express purpose and intention 
 of the grantor. Furthermore, his estate in the use was sub- 
 ject to the performance of this duty by the legal owner, and 
 an execution of the use would not vest the seisin and estate 
 after "such quality, manner, form and condition" as he had 
 in the use. The courts, therefore, held that it w r as not the 
 will of the Legislature to execute active uses. 70 And under 
 the strict construction of the statute the slightest, most un- 
 
 csVilliers v. Villiers. 2 Atk. 71; Fisher r. Fields. 10 Johns. 505; 
 Cleveland v. Hallett, 6 Gush. 406. See post, Sec. 371. 
 
 oTud. Ld. Gas. 261; 1 Cruise Dig. 354; Sand, on Uses 122; 2 
 Washburn on Real Prop. 380. In most of the States the common law in 
 respect to the employment of technical words of limitation has been 
 abolished by statute. The above rule, therefore, possesses very little 
 practical importance. See ante, Sec. 30. 
 
 2 Washburn on Real Prop. 467. See note under Sec. 347. 
 
 512
 
 CH. XIV.] USES UNDER THE STATUTE OF USES. 348 
 
 important duty in the trustee would prevent the operation of 
 the statute. 71 
 
 348. Uses to married women. So also where the purpose 
 of the trust is that the cestui que use, a married woman, 
 should hold and enjoy the estate for her own separate use, 
 the statute will not execute the use. For the execution of the 
 use would give to the husband control over the property and 
 its rents and profits during coverture, and the common-law 
 right of curtesy would attach because of her disability to hold 
 the legal estate free from his control. 72 In making a convey- 
 ance to the separate use of a married woman, her power of 
 alienation may, by a special clause, be entirely taken away 
 during the continuance of the marriage, and this restriction 
 will revive upon any subsequent marriage, if the trust is 
 itself revived by such second marriage. 73 In the absence of 
 such a restraining clause, in England and some of the States, 
 a married woman is to be treated, in respect to her separate 
 
 71 Thus, the statute was held not to execute the use, where the trus- 
 tee was directed to sell or dispose of the property to collect and pay 
 over the rents and profits to have the active management of the 
 estate to permit the cestui que use to receive the net profits to 
 apply the profits to the maintenance of the cestui que use to pay 
 annuities out of the rents, or to receive the rents and allow them to ac- 
 cumulate. In any such case, the legal estate being held necessary to 
 the performance of the trustee's duty, the statute could not operate, 
 and the use remained an equitable estate, to be enforcd by the courts 
 of equity. 1 Prest Est. 185; Co. Lit. 290 b, note 249, Sec. 6; 1 Cruise 
 Dig. 385; Doe V. Briggs, 2 Taunt. 109; Nevil v. Saunders, 1 Vern. 415; 
 Bass v. Scott, 2 Leigh 356; Posey v. Cook, 1 Hill (S. C.) 413; Norton 
 r. Leonard, 12 Pick. 152-158; Morton v. Barrett, 22 Me. 257; Barnett's 
 App., 46 Pa. St. 398; Fay t?. Taft, 12 Cush. 448; Lancaster v. Dolan, 
 1 Rawle 231. 
 
 72 1 Cruise Dig. 385 ; Harton v. Harton, 7 T. R. 653 ; Stearcy v. 
 Rice, 27 Pa. St. 75; Bush's App., 33 Pa. St. 85; Nevill v. Saunders, 1 
 Vern. 415. 
 
 73Hawkes v. Hubback, L. R. 11 Eq. 5; In re Gaffee's, Trusts, 1 Macn. 
 ft G. 541; Tullett v. Armstrong, 4 My. & Cr. 377; Shirley v. Shirley, 9 
 Paige 363; Baggett v. Meux, 1 Phil. 627. But see Dubs v. Dubs, 31 Pa. 
 St. 149; Miller v. Bingham, 1 Ired. 423. 
 
 33 513
 
 ."48 USES UNDER THE STATUTE OF USES. [PART II. 
 
 property, as a feme sole, and she may dispose of the 
 estate as she pleases. 74 In a number of the States, however, 
 the English rule has been discarded, and the contrary doe- 
 trine maintained that the married woman has no power over 
 her separate estate, except what is expressly granted or re- 
 served to her in the deed or settlement. 75 The reason why the 
 statute of uses could not execute the separate use of a married 
 woman, was that she could not, according to the common law, 
 take and hold the seisin and estate in "such quality, manner, 
 form and condition, "as she had in the use. For this rea- 
 son it is to be presumed that in those States where the disabil- 
 ity of married women is removed, and they are permitted to 
 hold and dispose of property as if they were single, the 
 reason failing, the rule would also fail, and the statute would 
 execute the use. 76 So, likewise, since the passive use in the 
 married woman is not executed, only because her disability 
 at common law prevents her taking and holding the same 
 rights and privileges in the legal estate as she had in the 
 use, if she assigns the use to one, who is not under a similar 
 disability, the statute will at once execute the use, and her 
 grantee would get the absolute legal estate, without the join- 
 ing of the trustees in the conveyance. 77 And the husband 
 would only have to join in the conveyance in order to bar his 
 curtesy, if he had any in the equitable estate. 
 
 7*Fettiplace v. Gorges, 1 Ves. 46; Rich r. Cockrell, 9 Ves. 69; Wag- 
 staff r. Smith, 9 Ves. 520; Sturgis V. Corp., 13 Ves. 190; Major r. Lus- 
 ley, 2 Russ. & My. 357; Essex v. Atkins, 14 Ves. 542; Dyett r. North 
 American Coal Co., 20 Wend. 570; 7 Paige Ch. 1; Powell r. Murray, 2 
 Edw. Ch. 636; Gardner v. Gardner, 22 Wend. 526; Imlay r. Huntington, 
 20 Conn. 175; Collins v. Larenburg, 19 Ala. 685; Coleman f. Woolley, 
 10 B. Mon. 320. 
 
 " Ewing r. Smith, 3 Desau 417; Reed r. Lamar, 1 Strobh. Eq. 27; 
 Calhoun v. Calhoun, 2 Strobh. 231; Magwood r. Johnson, 1 Hill Ch. 
 228; Lancaster r. Dolan, 1 Rawle 231; Wallace r. Coston, 9 Watts \:\1. 
 
 76 So it was held in Sutton v. Aiken, 62 Ga. 753; Bratton f. Massey, 
 15 S. C. 277; Bayer v. Cockerill, 3 Kan. 292. 
 
 77 See ante, Sec. 73. 
 
 514
 
 CH. XIV.] USES UNDER THE STATUTE OF USES. 349 
 
 349. Cases in which the statute will not operate. To re- 
 capitulate, the following are the principal cases in which the 
 statute will not execute the use : 1. Uses in chattel interests. 
 2. A use upon a use. 3. Contingent uses, whether the con- 
 tingency depends upon the uncertainty of the cestui que use, 
 or the use itself. 4. Active uses or trusts-. 5. Uses to mar- 
 ried women. Every other use will be executed immediately 
 upon their creation, the feoffee to use acting merely as a 
 conduit for the transfer of the seisin to the cestui que use. 
 Contingent uses are executed when they become vested, while 
 the other classes of uses above enumerated remain throughout 
 their entire duration unexecuted, and enforced as trusts by 
 chancery. 78 
 
 78 As has been remarked in a preceding note, the English Statute of 
 Uses has been superseded in some of the States by modern statutes, 
 materially different in their operation from the old statute. New York 
 first set the example, in 1848. The statute of New York abolishes all 
 express trusts heretofore known, and enumerates the chisses of active 
 trusts which can be created. All other trusts, and particularly passive 
 trusts, are declared to be legal estates, and the seisin vests in the cestui 
 que use or trust by force of the statute. 1 Rev. Stat. N. Y., p. 727, 
 Sees. 45-50. In New York, therefore, all uses are converted into legal 
 estates, except the express trusts enumerated in the statute, and trusts 
 arising by implication of law. 1 R. S. N. Y. 728, Sees. 51, 52, 53, 55; 
 Leggett v. Perkins, 2 N. Y. 297; Downing v. Marshall, 23 N. Y. 377; 
 Marvin v. Smith, 46 N. Y. 571; Rose v. Hatch, 125 N. Y. 427; Greene 
 f. Greene, 125 N. Y. 506. The future contingent uses become, by oper- 
 ation of the statute, future contingent estates of a legal character, and 
 the common law was so changed as to admit of the limitation of legal 
 estates, which were before only possible as the limitation of a use. 1 
 R. S. N. Y. 724, Sees. 16-19. This legislation has, in substance, been 
 followed in California, Michigan, Minnesota and Wisconsin. In these 
 States, therefore, the foregoing presentation of uses under the Statute 
 of Uses, as well as the subsequent section on future or contingent uses, 
 must be taken with the qualifications arising under the local statutes 
 prevailing there. 
 
 515
 
 SECTION III. 
 
 CONTINGENT, SPRINGING, AND SHIFTING USES. 
 
 SECTION 350. Future uses. 
 
 351. Contingent future uses How supported. 
 
 352. Importance of the question. 
 
 353. The solution of the question. 
 
 354. Contingent uses. 
 
 355. Springing uses. 
 
 356. Shifting uses. 
 
 357. Future uses in chattel interests. 
 
 358. Shifting and springing uses How defeated. 
 ' 359. Incidents of springing and shifting uses. 
 
 350. Future uses. It has been explained that a use could 
 be limited to commence in futuro with or without a preceding 
 estate in the use to support it, and even in derogation of the 
 preceding estate, and that it may be either vested or contin- 
 gent. 79 If it is a vested use the statute will operate imme- 
 diately and convert it into a legal estate, having the charac- 
 teristics of a vested estate in reversion. But if the use is con- 
 tingent, the operation of the statute is suspended until the use 
 vests or comes in esse. These future uses are divided into 
 contingent, springing, and shifting uses, and will here be 
 explained in the order named. 
 
 351. Contingent future uses How supported. In a con- 
 veyance, where there is a contingent use of limited duration, 
 and consequently there are other vested uses, the latter are 
 executed eo instanti, whether they are created by express limi- 
 tation or arise by operation of law under the doctrine of 
 resulting uses; while the contingent use remains unexecuted 
 until the contingency happens. But in order that the statute 
 
 fSee ante, Sec. 335. 
 516
 
 CH. XIV.] CONTINGENT, SPRINGING, AND SHIFTING USES. 353 
 
 may operate, there must be a seisin somewhere to feed the 
 contingent uses as they arise. Great difficulty is experienced 
 in discovering where that seisin is to be found, and in de- 
 termining its character. For example, if an estate is limited 
 to the use of A. for life, to the use of B. 's unborn son, to 
 the use of C. in fee. The uses in A. and C. being vested, are 
 immediately executed by the statute, while the use to the un- 
 born son of B., being contingent, remains unaffected. A., 
 under the statute, acquires a legal estate for life, and C. a 
 vested remainder in fee. The statute, therefore, transfers to 
 A. the seisin for life and to C. the seisin in fee in remainder. 
 What is the nature of the seisin left to support the contingent 
 use in B. 's unborn son, and where is it to be found when the 
 use vests? 
 
 352. Importance of the question. The apparent neces- 
 sity of locating this seisin and of determining its character 
 arose from the consideration of two questions, viz. : 1. After 
 the legal estate had been vested in A. for life and in C. in 
 remainder, was not the entire seisin exhausted and drawn 
 out of the feoffees or releasees to uses? 2. If any seisin did 
 remain in the feoffees, could it not be destroyed and the con- 
 tingent use defeated by a feoff ment of the feoffees? 
 
 353. The solution of the question. A great deal of spec- 
 ulative discussion was indulged in by the earlier judges and 
 writers, and a variety of opinions was the result. Some held 
 that the entire seisin vested in the executed uses, subject to the 
 future vesting of the contingent use ; others maintained that 
 sufficient seisin remained "in nubibus, in mare, in terra, in 
 custodia legis," ready to become united with the contingent 
 use when the contingency happens; while, perhaps, the largest 
 number sustained the view that a portion of the seisin, which 
 they called a scintilla juris (a right to recover the seisin), 
 remained in the feoffees to feed the uses as they came into 
 being. But, under this view of the case, it was necessary 
 
 517
 
 354 CONTINGENT, SPRINGING, AND SHIFTING USES. [PART II. 
 
 for the feoffees to enter in order to revive the seisin for the 
 contingent use, and any feoffment by them would result in 
 the destruction of the scintilla juris, and along with it the 
 use depending upon it. But the modern writers upon 
 uses have discarded all this abstruse and subtle reasoning, and 
 support the more rational doctrine advocated by Mr. Sugden 
 that "upon a conveyance to uses . . . immediately after 
 the first estate is executed, the releasees to uses are divested 
 of the whole estate, the estates limited previously to the con- 
 tingent uses take effect, the contingent uses take effect as they 
 arise, by force of and relation to the seisin of the releasees un- 
 der the deed, and vested remainders over take effect accord- 
 ing to the deed, subject to open and let in the contingent 
 uses. ' ' 80 The seisin receives, by force of the statute, the 
 power or capacity of feeding all the uses as they arise, and 
 of being transmitted from one to another as they vest in 
 possession. 81 The maintenance of this view does away with 
 the scintilla juris, and removes the necessity of a re-entry by 
 the feoffee to regain the seisin for the support of the contin- 
 gent use, even where there has been a disseisin of all the par- 
 ties to the deed. 82 
 
 354. Contingent uses. In the foregoing pages, the term 
 contingent use has been used to signify any future or execu- 
 tory use whose vesting in title depends upon a contingency. 
 But the term has been given a more restricted signification, 
 meaning contingent uses which would be good contingent re- 
 mainders if they had not been limited by way of uses. 83 It 
 
 so 3 Prest. Conv. 400 ; 1 Sugden on Pow. 20-48 ; 4 Kent's Com. 238- 
 247; Fearne Cont. Rem. 205; 2 VVashburn on Real Prop. 611; Chud- 
 leigh's Case, 1 Rep. 120; Brent's Case, Dyer 340; Tud. Ld. Cas. 260; 
 Sand, on Uses 110. 
 
 *i 2 Washburn on Real Prop. 420. 
 
 82 1 Sugden on Pow. 17-48; Fearne Cont. Rem. 293, 295, and Butler's 
 note; 1 Cruise Dig. 282; 4 Kent's Com. 238-246; 2 Washburn on Real 
 Prop. 611, 612. 
 
 1 Prest. Abstr. 105 ; 4 Kent's Com. 258 ; 2 Washburn on Real Prop. 
 608. 
 
 518
 
 CH. XIV.] CONTINGENT, SPRINGING, AND SHIFTING USES. 354 
 
 is a cardinal rule in the construction of all future estates, 
 whether created by deed or will, that if they can take effect 
 as remainders they will be construed to be such, even if they 
 are limited as uses. 84 A contingent use is, therefore, treated 
 in all essential particulars as a contingent remainder, and re- 
 quires a particular estate of freehold to support it. If the 
 use "is not vested during the existence of the particular estate 
 in the use, it fails in the same manner as if it had been limited 
 as a common-law contingent remainder. And if, at the time 
 of the conveyance, the future uses can take effect as re- 
 mainders, they cannot take effect as future or executory uses 
 when a change of circumstances has made them void as con- 
 tingent remainders. 85 And even where the future estate is 
 void in its inception, if it is limited by way of a remainder, 
 as where the vesting of the future use is made to depend upon 
 the duration of a particular estate, which cannot support a 
 contingent remainder because it is less than n freehold, the 
 future use will be void as a remainder, and cannot be con- 
 strued as a springing or shifting use. 80 But where the future 
 use is not made to depend upon a preceding use, as where 
 it is to vest at a time subsequent to the natural termination 
 of the particular use, a limitation entirely repugnant to the 
 law of remainders, it will be held to be a shifting or springing 
 use, which will vest independently of the preceding estate. 87 
 
 84 Co. Lit. 217; Fearne Cont. Rem. 284; 1 Prest. Abstr. 108; 2 
 Washburn on Real Prop. 600. 
 
 SB Fearne Cont. Rem. 284, and Butler's note; 2 Cruise Dig. 261; 
 Adams v. Savage, Salk. 679 ; s. c., 2 Ld. Raym. 854 ; Goodtitlc v. Billing- 
 ton. Dougl. 758; Davies r. Speed, Salk. 675. But see Carroll v. Han- 
 cock, 3 Jones L. 471; Nichols v. Denny, 37 Miss. 59. 
 
 * Adams r. Savage, 2 Ld. Raym. 854; Williams on Real Prop. 293; 
 Southsett r. Stowell, 1 Modern 238; Cole v. Sewell, 4 Dru. & Warr. 27; 
 Tud. Ld. Cas. 263; 4 Kent's Com. 293; 2 Washburn on Real Prop. 612, 
 613. Mr. Washburn cites Wils. Uses 9, in opposition to the text. 2 
 Washburn on Real Prop. 621. 
 
 2 Waahburn on Real Prop. 621; Gore v. Gore, 2 P. Wms. 28. 
 
 519
 
 356 CONTINGENT, SPRINGING, AND SHIFTING USES. [PART II. 
 
 355. Springing uses. A springing use is one to com- 
 mence in the future, unsupported by the limitation of a pre- 
 ceding use, and which does not by its vesting defeat or cut 
 short any prior limitation. Thus, a limitation to the use of 
 B. and his heirs after the death of A. Until the death of A. 
 the use results to the grantor, and at his (A.'s) death it is 
 executed in B. and his heirs. A springing use may be either 
 vested or contingent, according to the certainty or uncertainty 
 of the event upon which it depends. The example given 
 above is a vested springing use, as A. is sure to die, and 
 the use takes effect whether B. dies before A. or survives him ; 
 but a limitation to the heirs of B. after the death of A. would 
 be contingent, because of the uncertainty of B.'s dying be- 
 fore A. 88 
 
 356. Shifting uses. A shifting or secondary use is one 
 which is so limited, that its vesting will defeat the prior es- 
 tate in the use, and is always contingent. The use, upon the 
 happening of the event, shifts from the first taker to the sec- 
 ond. It has been explained that at common law no estate 
 could be limited after a fee or in derogation of the preceding 
 estate. 89 But there is no such restriction upon the limitation 
 of uses. The use in fee may, upon the happening of succes- 
 sive events, be made to shift from one person to another with- 
 out limit, provided the doctrine of perpetuity is not thereby 
 violated. A shifting use is, therefore, one class of what are 
 called conditional limitations. A conditional limitation can 
 only be created under the Statute of Uses or the Statute of 
 "Wills. Under the former it is known as a shifting use, while 
 under the latter it is called an executory devise. 90 The dis- 
 
 882 Cruise Dig. 263; 2 Washburn on Real Prop. 600-613; 4 Kent's 
 Com. 298 ; Egerton v. Brownlow, 4 H. L. Cas. 206 ; Mutton's Case, Dyer 
 274; Jackson v. Dunsbaugh, 1 Johns. Cas. 96; Wyman V. Brown, 50 Me. 
 156; McKee v. Marshall (Ky.), 5 S. W. Rep. 415; McCown v. King, 23 
 S. C. 232. 
 
 8 See ante, Sees. 211, 296. 
 
 o Fearne Cont. Rem. 385 ; 1 Spence Eq. Jur. 452 ; Egerton v. Brown- 
 520
 
 CII. XIV.] CONTINGENT, SPRINGING, AND SHIFTING USES. 358 
 
 tinction between a future limitation as a conditional limita- 
 tion, and a contingent remainder, has been already discussed, 91 
 and will require no further elucidation. 
 
 357. Future uses in chattel interests. At common law 
 it is impossible to create a remainder in a chattel interest. 
 The lessee of a term of years could grant a part of the term 
 to one and the rest to another, as, for example, out of a term 
 of thirty years he could assign it to A. for ten years and to B. 
 for twenty years, beginning at the close of A.'s term. But 
 he could not give A. a life estate and B. a remainder in fee. 02 
 This is possible, however, by way of a future use. Where, 
 therefore, such a limitation of a term is made by way of a 
 use, it will not take effect as a remainder, but as a springing 
 or shifting use, according to the terms of the limitation. 93 
 
 358. Shifting and springing uses How defeated. At 
 common law the destruction of the particular estate by feoff- 
 ment, or other act of the tenant, will defeat any contingent 
 remainder depending upon it. 94 And such is also the rule 
 in regard to contingent uses. 05 But no act of the tenant of a 
 
 low, 4 H. L. Cas. 209; 2 Cruise Dig. 264; Co. Lit. 271 b, note 231, Sec. 
 3; Tud. Ld. Cas. 363; Winchelsea r. Wentworth, 1 Vern. 402; 2 Wash- 
 burn on Real Prop. 622-624. An example of a shifting use, would be, a 
 limitation to A. and his heirs, and if B. should return from Rome, 
 then over to C. and his heirs. The return of B. from Rome would de- 
 termine the use in A. and execute the use in C. Cogan v. Cogan, Cro. 
 Eliz. 360; Carwardine v. Carwardine, 1 Eden 34; Winchelsea v. Went- 
 worth, supra; Doe v. Whittingham, 4 Taunt. 22; Buckworth v. Thirkell, 
 3 B. & P. 655; Battey V. Hopkins, 6 R. I. 445; Fogarty r. Stack 
 (Tenn.), 8 S. W. Rep. 846. 
 
 i See ante, Sees. 211, 296, 310, 313. 
 
 2 1 Cruise Dig. 235; Fearne Cont. Rem. 401; 4 Kent's Com. 270; 
 Wright t. Cartwright, 1 Burr. 284. 
 
 032 Bla. Com. 174; Fearne Cont. Rem. 401, Butler's note; Lampet's 
 Case, 10 Rep. 46; Wright r. Cartwright, 1 Burr. 284; 2 Washburn on 
 Real Prop. 624, 625. 
 
 9* See ante, Sec. 314. 
 
 Paber v. Police, 10 S. C. 376. And see cases and references cited 
 in note 93. 
 
 521
 
 358 CONTINGENT, SPRINGING, AND SHIFTING USES. [PART II. 
 
 preceding estate will effect the destruction of a springing or a 
 shifting use, which is in its nature independent of any 
 prior estate which may be had in the use. 00 It was formerly 
 supposed that, if the tenant of the particular estate was dis- 
 seised, in order that the contingent use might be executed. 
 there must be an actual entry by the tenant and the actual 
 seisin regained. But this doctrine has been repudiated by the 
 best authorities, and it is now held that the contingent use 
 would vest in title, whether the tenant is seised or has been 
 disseised, and that the contingent cestui que use acquires the 
 right of entry by the force of the Statute of Uses. 07 
 
 982 Cruise Dig. 281; 4 Kent's Com. 241; Tud. Ld. Cas. 263; Archer's 
 Case, 1 Rep. 67; Chudleigh's Case, 1 Rep. 120; 2 Washburn on Real 
 Prop. 582, 583, 625, 626. See Owings r. Hill (Ky.), 5 S. W. 418. 
 
 7 Fearne Cent. Rem. 286, 290, 295 ; 1 Kent's Com. 242, 247 ; 1 Sug- 
 den on Pow. 17-48; 2 Cruise Dig. 282, 284; Tud. Ld. Cas. 260; Chud- 
 leigh's Ca'se, 1 Rep. 120; Wegg v Villers, 2 Rolle. Abr. 796. This last 
 case is very celebrated, on account of the fact, that the suit was brought 
 on the settlement by Lord Coke of his property upon his wife and 
 daughter. The following is the account given of the case by Mr. Wash- 
 burn, which is here appended, because a thorough appreciation of the 
 fine points of the case involves an accurate knowledge of the principles 
 enunciated in the preceding pages. " The circumstances under which it 
 (the case of Wegg v. Villers) arose were these, as stated by the biog- 
 rapher of Lord Coke. The relations of Lord Coke with his wife, Lady 
 Hatton, it is well known, were not of the most pleasant kind. Coke 
 having fallen into disgrace with King James, while acting as Lord 
 Chief Justice, sought to regain the favor of that weak and capricious 
 monarch, and it was through the agency of Buckingham, who was, at 
 the time, the King's favorite, that he sought to operate upon the King. 
 Buckingham had a brother, Sir John Villers, and Coke a daughter, 
 Frances, by Lady Hatton, and he proposed a match between them. The 
 mother, angry at not having been consulted in the matter, carried her 
 daughter off, and secreted her. Coke, discovering her place of conceal- 
 ment, went with his sons and seized her by force. Lady Hatton ap- 
 pealed to the Privy Council, and it became an affair of state. It was 
 at length adjusted, upon Lord Coke's paying 10,000 sterling, and en- 
 tering into articles of settlement upon the marriage of his daughter. 
 pursuant to articles and directions of the Lords of the Council. The 
 adroitness with which this settlement was drawn, and the cunning man- 
 ner in which he arranged its provisions, so as to defeat it or let it stand 
 good as he might choose, will be perceived by recurring to its terms. 
 522
 
 CH. XIV.] CONTINGENT, SPRINGING AND SHIFTING USES. 358 
 
 and remembering and applying the idea advanced in Chudleigh's Case, 
 that the uses, so far as contingent, mtrst have an actual seisin in some 
 one, answering to a feoffee's, to sustain them. In the first place, the 
 conveyance was made by covenant to stand seised on his part, and the 
 limitations derived their force and effect from the seisin in himself, 
 for he covenanted to stand seised to the use of himself for life, re- 
 mainder to the use of his wife for life, remainder to the use of his 
 daughter for life, remainder to her first and other sons in tail, rever- 
 sion to his own right heirs. This gave an estate to him for life in pos- 
 session, a vested estate for life in remainder to his wife, and the same 
 to his daughter for life in remainder, with contingent uses by way of 
 remainder to unborn sons in tail, reserving to himself, after and above 
 all these limitations, a reversion in fee. Lord Coke then made a deed 
 of grant of this reversion to a third 'person without consideration, and 
 in his deed recited the foregoing settlement. He then made a fcoff- 
 ment in fee of the lands thus settled, with livery of seisin. As all the 
 estates but the reversion were by way of use, it was the seisin that was 
 in him as covenanter and reversioner which was to support them, and 
 if this was destroyed, so far as these were contingent, they would be 
 defeated. But as his grant of this reversion was to one having notice, 
 it remained subject to the settlement, and the seisin of this grantee was 
 that out of which these uses were to arise in the same way as from the 
 seisin which Lord Coke had had before the grant. But as he was also 
 in possession for life, the effect of his feoffment was not only to destroy 
 his own seisin and estate, but to make a discontinuance of that of his 
 grantee the reversioner, together with the estates of the wife and 
 daughter. But it left a right of entry in the daughter. But as this 
 discontinuance was a forfeiture of the father's life estate, and that of 
 his wife during coverture, it gave a right of entry in the daughter as 
 holder of the next vested estate, and a contingent right of entry to the 
 wife, dependent on her surviving her husband. The former was suffi- 
 cient to support the contingent use to the daughter's first son, pro- 
 vided there should be a seisin to serve such use, when it should arise. 
 As it turned out, Lord Coke's wife survived him, and having, by the 
 right of entry which she thereby acquired, entered upon the estate, 
 reinstated the divested estates, including that of the grantee of the re- 
 version, out of whose seisin the contingent uses were to arise, and the 
 limitations took effect in their order. If, however, Lord Coke had 
 made his feoffment before making the grant of the reversion, the effect 
 would have been to have worked a disseisin and divested all of the then 
 subsisting estates, including the estate or seisin out of which the con- 
 tingent uses were to arise, and which was to serve them. For as there 
 was no privity between his feoffee, his wife or daughter and his heirs, 
 whose seisin alone could support their contingent uses, no entry by the 
 wife or daughter could restore the estate and seisin of Lord Coke or his 
 
 523
 
 359 CONTINGENT, SPRINGING, AND SHIFTING USES [PART II. 
 
 359. Incidents of springing and shifting uses. All such 
 uses are capable of being disposed of in equity by assignment 
 or by will, and they descend to the heirs of the cestui que use, 
 and this, too, when the use is contingent, provided the con- 
 tingency does not depend upon the uncertainty of the cestui 
 que use. But they cannot be aliened by deed. 08 Where a 
 springing use is vested, since the statute executes it eo in- 
 stant i, it becomes a future legal estate with all the ordinary 
 rights attaching thereto. Such a use can be disposed of in 
 any manner of which a legal vested estate is capable. For the 
 protection of the interests of these cestuis que use against any 
 acts of waste by the prior tenant, the rules of the common law 
 in respect thereto apply by analogy, and chancery, upon the 
 application of the cestui <que use, would restrain the com- 
 mission of waste just as if his estate had been a contingent 
 remainder." Springing and shifting uses are, in their char- 
 acteristics, essentially the same as executory devises, differing 
 only in the manner of their creation ; it would be a mere repe- 
 tition, therefore, to discuss their incidents separately, beyond 
 what has been said. This subject will be resumed under the 
 head of executory devises. 1 
 
 heirs, contrary to his own feoffment, since he himself could 'not have 
 entered against such a feoffment. Now the cunning part of the ar- 
 rangement, which was defeated by his dyirig while things were in the 
 above state, was this. If he had seen fit to sustain the remainders, he 
 would have suppressed the feoffment, and only have shown the grant 
 of the reversion, to counteract the feoffment, if that should be set up 
 by any one. Whereas if he had wished at any time to destroy the re- 
 mainders, he would have suppressed the grant of the reversion, and left 
 the feoffment to have its effect. As he left both these in force, it gave 
 rise to the action above named, and an indefinite amount of refinement 
 and ingenious discrimination upon a rule of law too subtle to be ap- 
 prehended by ordinary minds." 2 Washburn on Real Prop. 520-031. 
 
 esFearne Cont. Rem. 366, and Butler's note; Jones v. Roe, 3 T. R. 
 88; Hobson v. Trevor, 2 P. Wms. 191; 2 Washburn on Real Prop. 626. 
 
 Fearne Cont. Rem. 362, and Butler's note; Stansfield v. Habergram, 
 10 Ves. 275; 2 Washburn on Real Prop. 626. 
 
 i See post, Ch. 15, Sees. 395-398, 400-402. 
 
 524
 
 SECTIOiN IV. 
 
 TRUSTS. 
 
 SECTION 360. What are trusts. 
 
 361. Active and passive trusts. 
 
 362. Executed and executory trusts. 
 
 363. Express trusts. 
 
 364. Implied, resulting, and constructive trusts. 
 
 365. Implied trusts. 
 
 366. Resulting trusts. 
 
 367. Same Payment of consideration. 
 
 368. Constructive trusts. 
 
 369. Interest of the cestui que trust. 
 
 370. Liability for debts. 
 
 371. Words of limitation. 
 
 372. Doctrine of remainders applied to trusts. 
 
 373. How created and assigned. 
 
 374. Statute of Frauds. 
 
 375. How affected by want of a trustee. 
 
 376. Removal of trustees. 
 
 377. Refusal of trustee to serve. 
 
 378. Survivorship. 
 
 379. Merger of interest. 
 
 380. Rights and powers of trustees. 
 
 381. Rights and powers of cestuis que trust. 
 
 382. Alienation of trust estate. 
 
 383. Liability of third persons for performance of the trust. 
 
 384. Compensation of trustee. 
 
 360. What are trusts? The Statute of Uses makes use 
 of the words "use, confidence, and trust," and recognizes no 
 distinction between them, and before the statute there was, as 
 has been shown, 2 no material difference between them, and 
 such would have been the case in modern times if the statute 
 had prevented the continued existence of equitable estates, in 
 conformity with the design and intention of the legislators. 
 
 2 See ante, Sec. 327. 
 
 525
 
 361 TRUSTS. [PART n. 
 
 But the statute was construed to have no effect upon certain 
 equitable interests, 3 which remained equitable and distinct 
 from the legal estate after as well as before the statute. For 
 the sake of convenience, and the purpose of distinguishing 
 them from those uses and trusts which were executed by the 
 statute, the term trust has since been exclusively applied 
 to those equitable interests, which remain such, while the 
 term use represents all such interests as are converted into 
 legal estates, either eo instant i or subsequently, as in the 
 case of contingent uses. 4 
 
 ^ 361. Active and passive trusts. Where a special duty 
 is to be performed by the trustee in respect to the estate, such 
 as to collect the rents and profits, to sell the estate, etc., 5 the 
 trust is called active. It is the duty which prevents the 
 operation of the statute, for the trustee must have the legal 
 estate in order to perform his duties. 6 All other trusts are 
 denominated passive trusts, because there is no duty imposed 
 upon the trustee. He simply acts as a reservoir of the legal 
 estate, because from the terms and character of the convey- 
 
 3 See ante, Sec. 349. 
 
 *1 Spence Eq. Jur. 491, 493, 494; 1 Prest. Est. 186-190; Tud. Ld. 
 Gas. 268-276; 2 Bla. Com. 336; Doe v. Hamfrey, 6 A. & E. 206; Doe v. 
 Biggs, 2 Taunt. 169; Doe v. Collier, 11 East 377; 4 Kent's Com. 314; 
 Ayer V. Ayer, 16 Pick. 327-330; Fisher v. Fields, 10 Johns. 505; 2 
 Pom. Eq. Jur. Sees. 984-986. " A trust for the sole benefit of the trus- 
 tees' children, under which the trustees were charged with no functions 
 except to hold the property for the children, became, at the maturity 
 of the children, a dry trust, executed by the statute of uses, and the 
 legal title was vested in the beneficiaries." Ottomeyer v. Pritchett (Mo. 
 1903), 77 S. W. Rep. 62. 
 
 5 1 Cruise Dig. 384; Co. Lit. 290 b, 249; Sec. 6; Tud. Ld. Cas. 270; 1 
 Prest. Abst. 143; Sherman v. Dodge, 28 Vt. 26; Aiken V. Smith, 1 
 Sneed. 304; Welles r. Castles, 3 Gray 323; Ackland v. Lutley, 9 A. & 
 E. 879; Douglass v. Cruger, 80 N. Y. 15; Culbertson's App., 76 Pa. St. 
 145; Brooks v. Marbury, 11 Wheat. 78; William's Appeals, 83 Pa. St. 
 377 ; Appeal of Watson, 125 Pa. St. 340 ; McClellan's Appeals, 130 Pa. 
 St. 451; Grothe's Appeal, 26 W. N. C. 265; Ruby's Appeal (Pa.), 11 
 Atl. Rep. 398. 
 
 * See authorities cited in preceding note. 
 526
 
 CH. XIV.] TRUSTS. 362 
 
 ance and limitation the statute cannot transfer the legal estate 
 to the cestui que use or trust. Such would be a use upon a 
 use, a use in chattel interest, and uses to persons incapable 
 of holding the legal estate for example, married women. 7 
 
 362. Executed and executory trusts. Where the limita- 
 tions are all definitely settled by the deed of creation, and 
 there is nothing further to be done in order to determine the 
 exact interest of the cestui que use and the duration of the 
 trust, the trust is said to be executed. But where the terms 
 of the trust-deed simply define how the settlement shall be 
 made, and imposes that duty upon the trustee, the trust is 
 called executory. All passive trusts and such active trusts, 
 in which the duty of the trustee is confined to the ordinary 
 administration of the property, are executed trusts, while 
 active trusts, in which it is the duty of the trustee to convey 
 to the person named, or to determine the shares which several 
 shall take, and the like, are comprehended under the head 
 of executory trusts. Executory trusts bear a close resem- 
 blance to powers when granted to trustees, to which more 
 particular reference will be made in the treatment of that 
 subject. 8 
 
 7 Doe v. Passingham, 6 B. & C. 305; Doe V. Collier, 11 East 377; 
 Hayes v. Tabor, 41 N. H. 521; Kuhn r. Newman, 26 Pa. St. 227; Steacy 
 v. Rice, 27 Pa. St. 75; Webster v. Cooper, 14 How. 488; Wagstaff v. 
 Smith, 9 Ves. 520; Boyd V. England, 56 Ga. 598; Sutton v. Aiken, 62 
 Ga. 733; Bolles v. State Trust Co., 27 N. J. 308; Rogers Loc. Works 
 V. Kelly, 19 Hun 399; Weber r. Weber, 58 How. Pr. 255; Martin V. 
 Funk, 75 N. Y. 134; Boone v. Bank, 84 N. Y. 83; Badgett V. Keating, 
 31 Ark. 400. 
 
 s It will be observed that the terms executed and executory, when ap- 
 plied to modern trusts, have a different significance from that which 
 is given to them, in. referring to the operation of the Statute of Uses 
 upon uses. Fearne Cont. Rem. 55, 113, 139; 4 Kent's Com. 304, 305. 
 Mr. Lewin defines these classes of trusts thus; "Trusts executed are 
 where the limitations of the equitable interest are complete and final ; 
 in the trust executory, the limitations of the equitable interest are not 
 intended to be complete or final, but merely to serve as minutes and 
 instructions for perfecting the settlement at some future period." Lewin 
 
 527
 
 364 TRUSTS. [PART n. 
 
 363. Express trusts. All the trusts, which have been 
 heretofore discussed, receive the further appellation of express 
 trusts, because they are expressly created by some deed or 
 other instrument of conveyance, and are to be distinguished 
 from those trusts, which are explained in the succeeding para- 
 graphs, and which arise by operation of law for the prevention 
 of injury and the furtherance of justice. Express trusts are 
 created by the express act of the party owning the property. 
 And it may be stated here that the law will never imply a 
 trust where one has been created expressly, even though the 
 express trust is void for the want of some essential formality, 
 unless the consideration is paid by the cestui que trust under 
 such circumstances as to give rise to a resulting trust. 
 
 364. Implied, resulting, and .constructive trusts. Trusts 
 which arise by implication of law are subdivided by the books 
 into implied, resulting, and constructive trusts. These names 
 are purely arbitrary, and do not convey to the mind any 
 idea of the distinguishing feature of the trusts which they 
 respectively represent. All trusts created by operation of 
 
 on Tr. 45; 2 Pom. Eq. Jur., Sees, 1000, 1001; Saunders v. Edwards, 2 
 Jones Eq. 134; Gushing v. Blake, 30 N. J. 689; 1 Eq. Ld. Gas. 1-36; 
 Neves v. Scott, 9 How. 211; Bowen v. Chase, 94 U. S. 812; Riddle v. 
 Cutter, 49 Iowa 547; Tallman v. Wood, 26 Wend. 9; Garnsey v. Mundy, 
 24 N. J. 243; Garner r. Garner, 1 Deems 437; Farr v. Gilreath, 23 S. 
 C. 502. " In order to create a trust, there must be an absolute parting, 
 on the part of the settlor, with the interest which had been his up to 
 the time of the declaration of the trust, and a specific property to be 
 held by the trustee." Taylor v. Coriell (N. J. Ch. 1904), 57 Atl. Rep. 
 810. 
 
 1 Spence Eq. Jur. 496 ; 2 Washburn on Real Prop. 436, 437 ; 2 Pom. 
 Eq. Jur., Sees. 987, 1030; Farrington v. Barr, 36 N. H. 86; Gibson v. 
 Foote, 40 Miss. 782; Graves v. Graves, 29 N. Y. 129; Nightingale v. 
 Hidden, 7 R. I. 121; Haggard v. Benson, 3 Tenn. Ch. 268; Ward v. 
 Armstrong, 84 111. 151. " An express trust pertaining to real estate 
 must, in the absence of fraud, be evidenced by some memorandum 
 thereof, signed by the party to be charged therewith." Prouty v. Moss 
 (111. App. 1903), 111 111. App. 536. "So long as an express trust 
 exists, and is recognized by the trustee, it never becomes stale." Ows- 
 ley v. Owsley (Ky. 1903), 77 S. W. Rep. 394. 
 528
 
 CH. XIV.] TRUSTS. 365 
 
 law may be said to be implied or constructive, while the use 
 of the word resulting serves, perhaps, to confound these 
 trusts with resulting uses. But it is convenient to make use 
 of this subdivision, and for the want of better terms, these 
 are employed to denote the three classes. Trusts created by 
 operation of law cannot be executed by the Statute of Uses. 
 They are not recognized by courts of law. They are the crea- 
 tions of equity, and are applied by the court of equity to all 
 inequitable transactions where the ends of justice cannot be 
 otherwise attained. 10 But such trusts cannot be enforced 
 against the property, after it has passed into the hands of a 
 bona fide purchaser for value. 11 
 
 365. Implied trusts. "Whenever the owner of land di- 
 rects a certain disposition of it, which is to inure to the 
 benefit of a third person without expressly creating a trust in 
 his behalf, under the maxim that equity treats that as done 
 which ought to be done, a trust will be implied in behalf of 
 such beneficiary. Thus, if the testator directs his lands to 
 be sold for the satisfaction of his debts, an implied trust is 
 raised in favor of the creditors which will enable them to 
 compel a performance of the trust by the executor. This 
 implied trust was specially valuable in the days when real 
 property was not liable for the debts of the owner. 12 An- 
 other well-known application of the doctrine is the case of 
 equitable conversion, so-called. When a contract for the 
 sale of real property is made for a valuable consideration, and 
 it is evidenced by an instrument in writing, equity will, by 
 
 102 Washburn on Real Prop. 437; 2 Pom. Eq. Jur., Sec. 1030; 1 
 Spenee Eq. Jur. 496; 1 Prest. Est. 1!1; Nightingale r. Hidden, 7 R. I. 
 121 ; Thompson r. Peake, 7 Rich. 353, and cases cited in subsequent notes. 
 
 11 Kearney v. Fleming, 10 N. Y. S. 169. 
 
 i- 1 Spenee Eq. Jur. 509; 2 Washburn on Real Prop. 438. This species 
 of trust is, however, really an express trust, although it arises by con- 
 struction, and is not strictly created by express limitation. 2 Pom. 
 Eq. Jur., See. 1010. See Walker r. Whiting, 23 Pick. 313; Fay V. Taft, 
 12 Cush. 448; Randolph f. Randolph, 40 X. J. Eq. 73. 
 
 34 529
 
 365 TRUSTS. [PART n. 
 
 raising an implied trust in favor of the vendee, treat the 
 vendor as his trustee in respect to the land to be conveyed, 
 and the trust will be enforced by a decree for specific per- 
 formance. 1 '' And so settled is the fiduciary character of the 
 relation of vendor and. vendee under an executory contract 
 of sale, that the vendee may enjoin the vendor from the com- 
 mission of waste. 1 * This trust may, as well, be enforced 
 against the subsequent purchaser from the vendee, with no- 
 tice of the prior contract of sale. 15 At this point attention 
 should be given to an apparent contradiction. The implied 
 trust, just explained, which arises from an executory contract 
 for the sale of land, is held to be beyond the operation of the 
 Statute of Uses, 10 so that the cestui que trust, or executory 
 vendee, would never acquire the legal title to the land, unless 
 the trust is enforced by a decree for specific performance of 
 the executory contract of sale. 17 In a previous paragraph, 18 
 where the creation of uses by simple declarations is explained, 
 it is stated that "Equity always construed a contract of sale 
 or agreement to convey as a declaration to uses, and would 
 enforce it if the requisite consideration was present." That 
 
 isi Spence Eq. Jur. 509; Jackson v. Morse, 16 Johns. 197; Coman 
 v. Lakey, 80 N. Y. 345; Pelton r. Westchester Fire Ins. Co., 77 N. Y. 
 605; Musham V. Musham, 87 111. 80; Felch v. Hooper, 119 Mass. 52; 
 Coffer a. Argo (111.), 24 N. E. Rep. 1068; Greene V. Brooks, 81 Cal. 
 328. But there must, of course, be a written agreement of sale to 
 satisfy the Statute of Frauds, or such a part performance as will take 
 the case out of the statute. Harris V. Barnett, 3 Gratt. 339; Hill V. 
 Meyers, 43 Pa. St. 170; Phillips v. Thompson, 1 Johns. Ch. 131; Ryan 
 T. Box, 34 N. Y. 312; 3 Washburn on Real Prop. 215. An implied trust 
 will also arise in favor of partnership-creditors in respect to the part- 
 nership property, when the insolvency of a firm or of its members 
 creates a contention of interests between the partnership creditors and 
 the creditors of the individual partners. Hastings V. Drew, 76 N. Y. 9; 
 Bartlett v. Drew, 57 Id. 587; Murray v. Murray, 5 Johns. Ch. 60. 
 
 i* Moses V. Johnson, 88 Ala. 517. 
 
 i- r - McWhinn r. Martin (Wis.), 46 N. W. Rep. 118. 
 
 i See ante, Sec. 364. 
 
 i? See supra. 
 
 is See ante, Sec. 330. 
 530
 
 CH. xrv.] TRUSTS. 365 
 
 is, equity would treat a bargain and sale of lands as the 
 express creation of a use, which could be executed into a 
 legal estate by the Statute of Uses, if the use so created did 
 not come within one of the five classes of cases, in which the 
 statute did not operate. 19 Wherever the English statute of 
 enrollment is in force, no use created by bargain and sale 
 can be executed by the Statute of Uses, unless it be created 
 by deed sealed and recorded. In England, therefore, a use 
 created by a bargain and sale, which did not conform to the 
 requirements of the Statute of Enrollment, would be de- 
 nominated an implied trust, which could be enforced only by 
 a decree for specific performance. But this distinction be- 
 tween these two classes of equitable estates only obtains where 
 the mode of creating uses by simple declarations is regulated 
 by statute, beyond the requirement of the Statute of Frauds, 
 that it should be manifested in writing. Where there is no 
 such regulation of the creation of uses, the executory bargain 
 and sale would be expected, and according to one set of 
 authorities it is held to create a use which could be executed 
 into a legal estate; but according to the second and more 
 numerous as well as more modern set of cases, it would be 
 an implied trust, which would remain an equitable estate 
 until the trust is enforced by a decree for specific perform- 
 ance. There is but one way to reconcile these otherwise con- 
 flicting decisions, apart from the historical explanation, that it 
 is a meaningless survival or adoption of a distinction which 
 was caused by the provisions of the statute of enrollment, but 
 which now, in the absence of such statutory regulations, serves 
 only to create confusion, viz. : that the character of the equi- 
 table estate created by a bargain and sale would depend upon 
 the intention of the parties in making the bargain and sale. 
 If, in executing the written contract of sale, the intention was 
 to pass an absolute title, the equitable estate of the vendeo 
 would be a use and not an implied trust ; and if the intention 
 of the parties was to make the bargain and sale only pre- 
 i See Seca. 346, 542. 
 
 531
 
 * ;~!G6 TRUSTS. [PART n. 
 
 liminary to a specific and more formal r rf ormance, then 
 the bargain and sale creates an imp led trust and not a use. 20 
 
 366. Resulting trusts. These trusts arise in two prin- 
 cipal cases : First, where onlv a part of the trust is declared, 
 and the result remains undisposed of. In such a case there 
 is a resulting trust in favor of the grantor. Resulting trusts 
 of this class are such as result to the grantor, but which, on 
 account of the terms of the lonveyance, cannot be executed 
 as uses. Where the statute 3an operate, the equitable in- 
 terest is a resulting use, and becomes a legal estate under 
 the stitute. Resulting interests in chattels, held in trust, 
 are resulting trusts, and not resulting uses. 21 Thus in the 
 devise of an income to one, when he becomes of ae, there 
 is a resulting trust in the immediate income to the devisor's 
 heirs; or where property is directed to be sold for certain 
 purposes, and the proceeds are more than sufficient for the 
 purposes of the trust, there is a resulting trust in the surplus 
 to the heirs of the devisor. 22 There is also a resulting trust 
 in favor of the grantcr and his heirs where the purposes of 
 
 = See Hanks V. Foi:om, 11 Lea 555, opinion by Chancellor Cooper, 
 citing Beecher t. Hicks, 7 Lea 311; Carnes v. Apperson, 2 Sneed 562; 
 Topp r. White, 12 Heisk. 165, 173; Anderson v. Clears, 7 Heisk. 667; 
 Lafferty r. Whitesides, 1 Swan. 123. 
 
 21 They are called resulting trusts, because they cannot be executed 
 by the statute. In every other respect they are like resulting uses, and 
 will arise only under such circumstances as would cause a resulting 
 use in the freehold estate. A resulting trust in a' chattel only arises 
 when there is no consideration to the grantor and no consideration ex- 
 pressed in the grant. For the particular cases in which there will be a 
 resulting use and, if it be a chattel interest, a resulting trust, see ante, 
 Sec. 329. 
 
 22 Lloyd v. Lloyd, L. R. 7 Eq. 458; Longley r. Longley, L. R. 13 Eq. 
 133; Hogan v. Jaques, 19 N. J. Eq. 123; Loring v. Elliot, 16 Gray, 
 568; Hogan v. Stayhorn, 65 N. C. 279; McCallister v. Willey, 52 Ind. 
 382; Trapnall v. Brown, 19 Ark. 39; Pouce V. McElroy, 47 Cal. 154; 
 Kennedy v. Nunan, 52 Cal. 326; Edinger r. Heiser, 62 Mich. 598; 
 S.-hlossinger r. Mallard, 70 Cal. 326; Ball v. Gaff (Ky.), 1 S. W. Rep. 
 724; Buffington r. Maxam, 152 Mass, 477. 
 
 532
 
 CH. XIV.] TRUSTS. 367 
 
 the express trust have failed, from whatever cause the failure 
 may arise. Thus, if the trust be to appoint the estate in 
 favor of a certain person, and the trustee fails to appoint, or 
 the person dies before appointment, the trust will result to the 
 grantor. 23 The trustee will in none of these cases enjoy the 
 trust, even though a nominal consideration be mentioned in 
 the deed. Nothing will prevent the resulting of the trust 
 to the grantor but the payment of an adequate, or at least 
 substantial, consideration. 24 The nominal consideration will 
 prevent the resulting of such a use as will be executed by the 
 statute, but will have no effect upon the resulting trust. 
 
 367. Same Payment of consideration. The second class 
 of resulting trusts includes -those cases in which the estate 
 is purchased in the name of one person and the consideration 
 is paid by another. But two circumstances must concur in 
 order that a trust may result to the one paying the considera- 
 tion : First, the execution of the deed in the name of the 
 one person must be the result of some fraud, accident, or mis- 
 take. Or, if it is done with the knowledge and consent of the 
 person paying the consideration, his intention that he should 
 have the beneficial interest in the estate must be clearly es- 
 tablished. 25 The payment of the consideration and the in- 
 
 231 Cruise Dig. 375, 394; Ashhurst i: Givens, 5 Watts & S. 327; 
 Sturtevant r. Jaques, 14 Allen 523; Shaw r. Spencer, 100 Mass. 382; 
 Nichols v. Allen, 130 Mass. 211; Oliffe v. Wells, 130 Mass. 221; Power 
 V. Cassidy. 7!) X. Y. 602; Stansfield f. Habergham, 10 Ves. 273; Pratt 
 V. Miller, 23 Neb. 496; Parker r. McMillan, 55 Mich. 265. 
 
 2* 1 Spence Eq. Jur. 467; 2 Washburn on Heal Prop. 438; 2 Pom. Eq. 
 Jur., Sec. 1033. See Clark V. Hershey, 52 Ark. 473. 
 
 25 Dyer f. Dyer, 2 Cox 92; 1 Eq. Ld. Cas. 314; Lloyd v. Read, 1 P. 
 Wms. 607; Withers v. Withers, Ainbl. 151; Rider v. Kidder, 10 Ves. 
 360; Medraer r. Mediner, 26 N. J. Eq. 269; Smith v. Patton, 12 W. Va. 
 541; Lee V. Browder, 51 Ala. 288; Thomas f. Standiford, 49 Md. 181; 
 Tilford f. Torrey, 53 Ala. 120; Cunningham f. Bell, 83 N. C. 328; 
 Kelley V. Jenness, 50 Me. 455; Hopkinson f. Dumas, 42 N. H. 306; 
 Nixon's App., 63 Pa. St. 279; Clark r. Clark, 43 Vt. 685; Boyd f. Mc- 
 Lean, 1 Johns. Ch. 582; Brooks f. Shelton, 54 Miss. 353; Hampson V. 
 Fall, 64 Ind. 382; Duval v, Marshall, 30 Ark. 230; McGovern r. Knox, 
 
 533
 
 367 TRUSTS. [PART n. 
 
 tention of the parties in respect to the beneficial interest may 
 be established by parol evidence, even against the express re- 
 citals of the deed. But the evidence must be clear. It would 
 seem that this would be a clear violation of the Statute of 
 Frauds, where the deed was taken in the name of another 
 with the understanding that the one paying the consideration 
 shall be the beneficial or equitable owner. For it is difficult 
 to see in what way such a trust differs from an express trust, 
 which is required to be manifested by some writing. But the 
 decisions have held that it was not necessary for it to be in 
 writing, and such must be taken to be the law. 26 In like 
 
 21 Ohio St. 547; Latham v. Henderson, 47 111. 185; Mathis V. Stuffle- 
 beam, 94 111. 481; Moss v. Moss, 95 111. 449; Johnson v. Quarles, 47 
 Mo. 423; Boskowitz v. Davis, 12 Nev. 446; Logan v. Walker, 1 Wis. 
 527; Case r. Codding, 38 Cal. 191; Roberts v. Ware, 40 Cal. 634; Mer- 
 shon v. Duer, 40 N. J. Eq. 333; Osgood V. Eaton, 82 N. H. 512; Parker 
 r. Logan, 82 Va. 376; Farrington v. Duval (S. C.), 10 S. E. Rep. 944; 
 Xanoe r. Nance, 28 111. App. 587. " A resulting trust in favor of one 
 furnishing money for the purchase of real estate cannot arise in oppo- 
 sition to the intention of the parties." Funk v. Hensler (Wash. 1903), 
 72 Pac. Rep. 102. " A resulting trust will not arise in favor of one 
 paying a part of the price of land conveyed to another unless it is 
 shown that he paid some definite part of the consideration." Onasch 
 v. Zinkel, 72 N. E. Rep. 716, 213 111. 119. "A voluntary conveyance 
 cannot be held to create a resulting trust for the grantor." Gallagher 
 r. Xorthrup (111. App. 1904), 114 111. App. 368. "There is not a re- 
 sulting trust in favor of the purchaser at execution sale where the deed 
 to her is void." Livingstone v. Murphy (Mass. 1905), 72 N. E. Rep. 
 1012. 
 
 26 See Willis v. Willis, 2 Atk. 71; Gascoigne v. Thwing, 1 Vern. 366; 
 Heard v. Pilley, L. R. 4 Ch. 548 ; Baker v. Vining, 30 Me. 121; Boyd 
 V. McLean, 1 Johns. Ch. 582; Hennesy v. Walsh, 55 N. H. 515; Parker 
 V. Snyder, 31 N. J. Eq. 164; Whitmore v. Learned, 70 Me. 276; Thomas 
 V. Standiford, 49 Md. 181; Miller V. Blose's Exr., 30 Gratt. 744; Lee V. 
 Browder, 51 Ala. 288; Agricultural Assn. V. Brewster, 51 Texas 257; 
 Murphy v. Peabody, 63 Ga. 522; Smith v, Patton, 12 W. Va. 541; Mc- 
 Creary v. Casey, 50 Cal. 349; Ward v. Armstrong, 84 111. 151. "The 
 statute of frauds is inapplicable in the case of resulting trusts." Lynch 
 v. Herrig (Mont. 1905), 80 Pac. Rep. 240. "A resulting trust can 
 only be created by a writing." Los Angeles & B. Oil & Development 
 Co. of Arizona v. Occidental Oil Co. (Cal. 1904), 78 Pac. Rep. 25. 
 534
 
 CH. XIV.] TRUSTS. 367 
 
 manner the presumption of a trust arising from the payment 
 of the consideration may be rebutted by parol evidence, show- 
 ing that the one paying the consideration intended that the 
 grantee in the deed should have the benefit of the purchase as 
 a gift, provided such parol evidence does not contradict the 
 terms of the deed. 27 The second circumstance is, the consid- 
 eration must be paid by the person claiming the resulting 
 trust at the time of the transaction of sale or conveyance. 
 Any subsequent payment of the consideration by such per- 
 son, even though he has been compelled to do so as surety of 
 the grantee, will not raise a trust. 28 The absence of either 
 of these circumstances will prevent the trust resulting from 
 the payment of the consideration. 29 And the evidence in sup- 
 
 27 Lane V. Dighton, Ambl. 409; Bcnbow V. Townsend, 1 My. & K. 506; 
 Jlopkinson V. Dumas, 42 N. H. 303; Edwards v. Edwards, 39 Pa. St. 
 373; Carter V. Montgomery, 2 Tenn. Ch. 216; Adams v. Greerard, 26 
 Ga. 651; Warner v. Steer, 112 Pa. St. 634; Tryor v. Huntoon, 67 Cal. 
 325. 
 
 zsHowell v. Howell, 15 N. J. Eq. 78; Buck v. Swazey, 35 Me. 41; 
 Hopkinson v. Dumas, 42 N. H. 301; Mershon V. Duer, 40 N. J. Eq. 
 333; Brown V. Cave, 23 3. C. 251; Shaw v. Shaw, 86 Mo. 594; Walsh 
 V. McBride (Md.), 19 Atl. Rep. 4; Pulford v. Morton, 62 Mich. 25; 
 Rice v. Pennypacker, 5 Del. Ch. 33. So also will a trust result to one 
 who pays a part of the purchase-money with the intention that he shall 
 have an interest in the land. But in order that there may be a result- 
 ing trust in his favor, the exact amount which he advances must be 
 clearly established. Any doubt or uncertainty in that respect will pre- 
 vent tlie trust from resulting. Shoemaker v. Smith, 11 Humph. 81; 
 Smith v. Smith, 85 111. 189; Cramer v. Hoose, 93 111. 503; Shea v. 
 Tucker, 56 Ala. 450; McCreary v. Casey, 50 Cal. 349; Botsford v. Burr, 
 2 Johns. Ch. 405; Smith V. Straham, 16 Texas 314; Sayre V. Townsend, 
 15 Wend. 647; Springer v. Springer, 114 111. 558; Somers v. Overhul- 
 ser, 67 Cal. 237. 
 
 2McCue v. Gallagher, 23 Cal. 53; Gee v. Gee, 32 Miss. 190; Gibson 
 V. Foote, 40 Miss. 792; Ramsdell v. Emory, 46 Me. 311; Botsford v. 
 Burr, 2 Johns. Ch. 405; McCullough v. Ford, 96 111. 439; House V. 
 House, 57 Ala. 262; Kennedy v. Price, 57 Miss. 771; Hennesy v. Walsh, 
 55 N. H. 515, and cases cited in the preceding notes. Heneke V. Flor- 
 ing, 114 111. 554; Green v. Dietrich, 114 111. 636; Burdette v. May, 100 
 Mo. 13; Nance v. Nance, 28 111. App. 587; Rice v. Pennypacker, 5 Del. 
 Ch. 33. There is no resulting trust in favor of one whose money is ex- 
 
 535
 
 367 TRUSTS. [PART IT. 
 
 port of both propositions must be clear and free from reason- 
 able doubt. 30 Resulting trusts are now regulated by statute 
 in New York, Michigan, Indiana, Kentucky, Minnesota, Wis- 
 consin and Kansas. They all substantially abolish such re- 
 sulting trusts as arise in a conveyance to one person in 
 favor of another who has paid the consideration, except in 
 favor of the judgment-creditors of the latter. They may 
 enforce the trust in their behalf if they were creditors at 
 the time of the conveyance. 31 But the statutes expressly ex- 
 cept those cases where the deed has been taken in the name 
 of another, through some accident, fraud or mistake. 32 These 
 resulting trusts rest upon the presumption that the person 
 beneficially entitled has been deprived of his interest against 
 his will. But where the relation between the parties is so 
 close as to permit of the counter-presumption that the one 
 paying the consideration intended it as a gift to the one in 
 whose name the deed is taken, as where the parties are hus- 
 band and wife, parent and child, and the like, there will be 
 
 pended in improvements on the land. Bodwell V. Nutter, 63 X. H. 446. 
 " A trust founded on no consideration on the part of the cestui qiie 
 trust will not be enforced either at law or in equity, unless executed or 
 fully declared, and to take effect in prcescnti." Fisher r. Hampton 
 Transp. Co. (Mich. 1904), 98 N. W. Rep. 1012, 10 Detroit Leg. N. 1028. 
 
 soHeneke V. Floring, 114 111. 554; Green r. Dietrich, 114 111. 636; St. 
 Patrick's Catholic Church V. Daly, 116 111. 76; Woodward r. Sibert, 
 82 Va. 441; Catoe v. Catoe (S. C.), 10 S. E. Eep. 1078; Hoover r. 
 Hoover, 29 Pa. St. 201; Behm f. Molly (Pa.), 19 Atl. Rep. 562; Guest 
 v. Guest, 74 Tex. 664. 
 
 3i2 R. S. N. Y. (1875) 1105, Sees. 51, 52, 53; 2 Comp. Laws Mich. 
 (1871) 1331, Sees. 7, 8, 9; 1 R. S. Wis. 1129, Sees. 7, 8, 9; Comp. Laws 
 Kan., p. 989, Sees. 6, 7, 8; Moore V. Williams, 55 N. Y. Super. Ct. 116; 
 Weers v. Rademacher, 120 N. Y. 62. 
 
 32 For cases in which these statutes have been under consideration see 
 Reitz v. Reitz, 80 N. Y. 538; Siemon f. Schurck, 29 N. Y. 598; Wenro 
 v. Linnell, 29 Mich. 224; Munch v. Shabel, 37 Mich. 166; Berry r. 
 Berry, 74 Ind. 560; Hon v. Hon, 70 Ind. 135; Catherwood. 65 Ind. 
 576; Graves f. Graves, 3 Mete. 167; Kennedy r. Taylor, 20 Kan. 558; 
 Underwood v. Sutliffe, 77 N. Y. 51; Traphagen v. Burt, 67 N. Y. 30; 
 Bedford r. Graves (Ky.), 1 S. W. Rep. 534. 
 536
 
 TRUSTS. 367 
 
 no resulting trust. 33 But this is only a presumption of law, 
 in rebuttal to the presumption of a trust raised by the pay- 
 ment of the consideration. If it is shown that the deed 
 was taken in the name of the wife or child through a mistake 
 of the scrivener, or the fraud of some one, or with the in- 
 tention that the husband or father should have the equitable 
 interest, the trust will result, as in any other case. 34 
 
 33 It is presumed to be a gift, because the purchasers in the cases 
 supposed, husband and father, are under a moral or quasi legal obliga- 
 tion to maintain the persons in whose names the deeds are taken, viz., 
 wife and child. 1 Cruise Dig. 394; 1 Spence Eq. Jur. 511; Kingdom 
 v. Bridges, 2 Vern. 67; Finch r. Finch, 15 Ves. 43; Marshall . Crut- 
 well, L. R. 20 Eq. 328; Livingston r. Livingston, 2 Johns. Ch. 537; 
 Farnell r. Lloyd, 69 Pa. St. 239; Stevens r. Stevens, 70 Me. 92; Loch- 
 enour v. Lochenour, 61 Ind. 595; Read v. Huff, 40 N. J. Eq. 229; Rob- 
 inson r. Robinson, 45 Ark. 481 ; In re Camp, 10 N. Y. S. 141. And the 
 same presumption prevails wherever one purchases property in the 
 name of another, while the former stands in loco parentis (between 
 mother and child). In re De Visme, 2 De G., J. & S. 17; Batstone v. 
 Salter, L. R. 19 Eq. 250. But see Murphy r. Nathans, 46 Pa. St. 508; 
 Shaw v. Read, 47 Pa. St. 103; Flynt v. Hubbard, 57 Miss. 471 (be- 
 tween grandfather and grandchild); Co. Lit. 290 b, note 249, Sec. 8; 
 Ebrand r. Dancer, 2 Chan. Cas. 26. See generally Beckford V. Beck- 
 ford, Lofft. 490; Lloyd . Read, 1 P. Wms. 607; Smith V. Patton, 12 
 W. Va. 541 ; Higdon V. Higdon, 57 Miss. 264. On the other hand there 
 is no presumption of a gift where the deed is taken in the name of the 
 husband or father, and the purchase-money is paid by wife or child. 
 Howell v. Howell, 15 N. J. Eq. 77; Thomas v. Standiford, 49 Md. 181; 
 Lofton v. Witboard, 92 111. 461; Moss v. Moss, 95 111. 449; Catherwood 
 r. Watson, 65 Ind. 575; Cunningham r. Bell, 83 N. C. 328; Tilford v. 
 Torrey, 53 Ala. 120; Leman r. Whitley, 4 Russ. 423; Sasser v. Sasser, 
 73 Ga. 275. 
 
 3< Wallace V. Bowens, 28 Vt. 638; Sawyer's Appeal, 16 N. H. 414; 
 Dickinson V. Davis, 43 N. H. 647; Jackson v. Matdurf, 11 Johns. 91; 
 Stevenson r. Stevenson, 70 Me. 92; Springer v. Berry, 47 Me. 338; 
 Guthrie r. Gardner, 19 Wend. 414; Williams v. Williams, 32 Beav. 370; 
 Read r. Huff, 40 N. J. Eq. 229; Russell v. Russell (Ky.), 12 S. W. 
 Rep. 709. It has been held that there can be no resulting trust in 
 favor of a husband in property in the name of the wife, because the 
 wife cannot be trustee for the husband. 1 Cruise Dig. 402 ; Kingdon r. 
 Bridges. 2 Vern. 67; Alexander r. Warrance, 17 Mo. 228; Jencks v. 
 Alexander, 11 Paige Ch. 619. This technical rule is not presumed to 
 prevail in this country as an obstacle in the way of raising a resulting 
 
 537
 
 368 TRUSTS. [PART 11. 
 
 368. Constructive trusts. Constructive trusts arise 
 where the trustee or any other person holding a fiduciary po- 
 sition, by fraud, actual or constructive, makes an illegal dispo- 
 sition of trust property to the injury of the cestui que trust 
 or beneficiary. The latter can, at his election, follow such 
 trust property into whosesoever hands it may come with no- 
 tice of the trust. 35 And it matter not whether the original 
 holding of such property was legal or illegal; if, afterwards, 
 it becomes illegal, the same rule will apply. 36 The most com- 
 mon instances of constructive trusts are purchases by the 
 trustee of trust property at his own sale, or an illegal con- 
 veyance by him to one having notice of the trust, or paying 
 no valuable consideration. It is a general rule of law that a 
 trustee cannot purchase at his own sale, and if he does he 
 cannot acquire an absolute title. It is voidable at the elec- 
 
 trust, and certainly not in those States where the wife is treated, in 
 respect to her property., as a feme sole. See cases cited, supra. " A 
 resulting trust arises in favor of the wife where property is purchased 
 by the husband with her funds, and title thereto is taken in the hus- 
 band's name." Matador Land & Cattle Co. v. Cooper (Tex. Civ. App. 
 1905), 87 S. W. Rep. 235. " As between a wife and the creditors of her 
 husband, the wife was entitled to have a resulting trust in real estate, 
 in the absence of any estoppel, to the extent of her contribution toward 
 the purchase price, and to the extent that her money had been used in 
 repairs, taxes, etc., over and above her proportion of the purchase price. 
 Mayer v. Kane (N. J. Ch. 1905), 61 Atl. Rep. 374. Where a minor 
 pays a portion of the purchase price of a farm, title to which is taken 
 in the name of his father, but with the understanding that it was not a 
 gift to the father, a trust would result in the minor's favor to the 
 amount paid, though the balance was not so paid as to raise a resulting 
 trust on its account. Crowley v. Crowley (N. H. 1903), 56 Atl. Rep. 
 190. 
 
 ss 2 Washburn on Real Prop. 447; 1 Spence Eq. Jur. 511; 2 Pom. Eq. 
 Jur. 1044; Perry on Tr., Sec. 166; Bailey V. Winn (Mo.), 12 S. W. Rep. 
 1045; Murphy v. Murphy (Iowa), 45 N. W. Rep. 914; Lehmann v. 
 Rothbarth, 111 111. 185; Morgan v. Fisher's Admr., 82 Va. 417. 
 
 se Thus, if a mortgage is given jointly to two, and one dies, the sur- 
 vivor would hold the mortgage as trustee for himself and the heirs and 
 personal representatives of the deceased. Buck v. Swazey, 35 Me. 41; 
 Randall v. Phillips, 3 Mason 378; Caines v. Grant, 5 Binn. 119. 
 538
 
 CII. IIIV.j TRUSTS. C~3 
 
 tion of the ccslui que trust. Until an avoidance or ratifica- 
 tion by him there is a constructive trust raised in his favor. 37 
 But this rule does not prevent him from purchasing the trust 
 property with the consent of the cestui que trust, provided the 
 latter is of age. But such transactions are closely watched, 
 and if the consideration paid therefor be not adequate, the 
 courts are greatly disposed to set aside the sale. 38 The court, 
 of equity may also authorize the trustee to buy the property 
 in, and in that case the title of the trustee will be good against 
 all parties. 39 In the same manner, if the trustee attempts to 
 
 37 Jennison v. Hapgood, 7 Pick. 8 ; Swinburne v. Swinburne, 28 N. Y. 
 5G8 ; Hubbell v. Medbury, 53 N. Y. 98 ; Charles v. Dubose, 29 Ala. 367 ; 
 Gaerrers v. Bailleno, 48 Cal. 118; Newton V. Taylor, 39 Ohio St. 399; 
 Rea v. Copelin, 47 Mo. 76; Broyles V. Nowlin, 59 Tenn. 191; Reickhoff 
 V. Brecht, 51 Iowa 633; Pindall v. Trevor, 30 Ark. 249; Blauvelt V. 
 Akerman, 20 N. J. Eq. 141; Barnett v. Bamber, 81 Pa. St. 247; Tracy 
 v. Craig, 55 Cal. 359; Davis v. Creek, 55 Cal. 359; Reitz V. Reitz, 
 80 N. Y. 538; Smith v. Stophenson, 45 Iowa 645; Jones V. Dexter, 130 
 Mass. 380; Hastings v. Drew, 76 N. Y. 9; Bennett V. Austin, 81 N. Y. 
 308; Smith t?. Frost, 70 N. Y. 605; Heath V. Crealock, L. R. 18 Eq. 
 215; In re Hallett's Estate, L. R. 13 Ch. 696; Wedderburn V. Wedder- 
 burn, 4 My. & Cr. 41; Great Luxembourg Ry. Co. v. Magnay, 25 Beav. 
 586; Barnes v. Addy, L. R. 9 Ch. 244; Bassett V. Shoemaker (N. Y.), 
 20 Atl. Rep. 52. Where a grantee or devisee obtains the possession 
 and title to land intended for another by actual fraud, on clear and 
 convincing proof of the fraud, a trust will be raised in favor of the- 
 latter. Moore V. Crump (Miss. 1904), 37 So. Rep. 109. A constructive 
 trust results in favor of a corporation where, by reason of the fraudu- 
 lent acts of its managing officers and others, its property has been con- 
 veyed away and lost and wasted to the corporation and its stockholders. 
 Northwestern Land Assn. v. Grady (Ala. 1903), 33 So. Rep. 874. 
 
 ss Downes v. Grazebrook, 3 Meriv. 208 ; Ex parte Lacey, 6 Ves. 625 ; 
 Morse v. Royal, 12 Ves. 355; Denton v. Donner, 23 Beav. 285; Coles v. 
 Trecsthick, 9 Ves. 234; Spencer v. Newbold's Appeal, 80 Pa. St. 317. 
 
 sScholle v. Scholle, 101 N. Y. 167; Fisher's Appeal, 34 Pa. St. 29; 
 Marshall v. Joy, 17 Vt. 546; Moore v. Mandlebaum, 3 Mich. 433; Bur- 
 rell v. Bull, 3 Sandf. Ch. 15; Young v. Hughes, 32 N. J. Eq. 372; 
 Walker v. Carrington, 74 111. 446. " The beneficiary of a trust fund is 
 entitled to all profits made thereon by the trustee in violation of his 
 trust." Jeffray v. Towar (N. J. Ch. 1903), 54 Atl. Rep. 817. "Where 
 beneficiaries suffered loss by the conduct of the trustee, their remedy 
 
 539
 
 S 368 TRUSTS. [PART n. 
 
 make an illegal disposition of the land, his grantee will take 
 it bound with a constructive trust in favor of the cestui que 
 trust, unless he has had no actual or constructive notice of 
 the trust, and has paid a valuable consideration. 40 And where 
 such grantee is a bona fide purchaser for value, the proceeds 
 of sale will be subject to the constructive trust in favor of 
 the cestui que trust, into whatever kind of property such pro- 
 ceeds may be invested, as long as the possibility of identifying 
 them remains. 41 These are only the more common instances 
 of constructive trusts. But there are many others, and it may 
 be stated as the invariable rule that where there has been a 
 fraud committed in the disposition or acquisition of the 
 property, equity will raise a constructive trust in favor of the 
 person so defrauded, unless it will ( interfere with and affect 
 the interest of innocent third persons. 42 Thus, if one em- 
 is to proceed against the trustee." Miller t'. Butler (Ga. 1905), 49 S. 
 E. Rep. 754. 
 
 4 Thompson r. Wheatley, 5 Smed. & M. 499; Fillraan v. Divers, 31 
 Pa. St. 42; Hopkinson v. Dumas, 42 N. H. 304; Boone 0. Chiles, 10 
 Pet. 177; McVey v. Quality, 97 111. 93; Dey V. Dey, 26 N. J. Eq. 182; 
 Veile 0. Blodgett, 49 Vt. 270; Murray v. Ballou, 1 Johns. Ch. 566; 
 Phelps v. Jackson, 31 Ark. 272; Planter's Bk. v. Prater, 64 Ga. 609; 
 Dotterer v. Pike, 60 Ga. 29; Musham v, Musham, 87 111. 80; Newton V. 
 Porter, 09 N. Y. 133; Russell v. Clark's Exrs., 7 Cranch 69; Sharpe V. 
 Goodwin, 51 Cal. 219; Boyd V. Brincken, 55 Cal. 427; McEachin V. 
 fStewart, 106 N. C. 336. 
 
 Burks V. Burks, 7 Baxt. 353; Broyles v. Nowlin, 59 Tenn. 191; Til- 
 ford v. Torrey, 53 Ala. 120 ; Pindall V. Trevor, 30 Ark. 249 ; McDonough 
 0. O'Neil, 113 Mass. 92; Tracy V. Kelley, 52 Ind. 535; Cookson V. 
 Richardson, 69 111. 137; Coles v. Allen, 64 Ala. (when no trust arises) ; 
 Dodge V. Cole, 97 111. 338; Schlaefer v. Corson, 52 Barb. 510; Hastings 
 V. Drew, 76 N. Y. 9, 16; Taylor u. Mosely, 57 Miss. 544; Mich., etc., 
 R. R. v. Mellen, 44 Mich. 321; Murray 0. Lylburn, 2 Johns. Ch. 441, 
 443; Shaw v. Spencer, 100 Mass. 382; Shelton r. Lewis, 27 Ark. 190; 
 Duncan v. Jaudon, 15 Wall. 165; Newton V. Taylor, 32 Ohio St. 399; 
 Barrett v. Bamber, 81 Pa. St. 247; Veile v. Blodpett, 49 Vt. 270; Hub- 
 bard 0. Burrell, 41 Wis. 365; proceeds charged with a trust on sale to a 
 bona fide purchaser. 
 
 2Lakin V. Sierra Buttes Gold Mining Co., 25 Fed. Rep. 337; Boyce 
 v. Stanton, 15 Lea, 346; Palmetto Lumber Co. r. Risley, 25 S. C. 309; 
 540
 
 CH. XIV.] TRUSTS. 368 
 
 bezzles monej- intrusted to his care and invests it in real 
 estate, the person to whom the money belongs will have a 
 constructive trust in such land as against every one except 
 an innocent subsequent purchaser. 43 But there will not be 
 any constructive trust unless it can be shown that specific 
 pieces of property had been purchased with trust funds. 44 A 
 constructive trust also arises where one procures a devise or 
 bequest upon the fraudulent misrepresentation that he will 
 apply such testamentary provisions to the use and benefit of 
 another, 45 or succeeds in effecting a purchase of property 
 
 Wingerter r. Wingerter, 71 Cal. 105; McElroy v. Hiner (111.). 24 \. R. 
 Rep. 435; Huxley v. Rice, 40 Mich. 73; Phelps v. Jackson, 31 Ark. 272; 
 Hendrix V. Nunn, 46 Texas, 141; Veile v. Blodgett, 49 Vt. 270 : Jen- 
 kins v. Doolittle, 69 111. 415; Greenwood's Appeal, 02 Pa. St. 181; 
 Barnes v. Taylor, 30 N. J. Eq. 7; Hollinshead f. Simms. 51 Cal. 158; 
 Dewey v. Mover, 72 N. Y. 70, 76; Beach v. Dyer, 93 111. 295: Dyer V. 
 Dyer, 1 Eq. Lead. Gas. 514, 350-364 (4th Am. ed.). 
 
 43Foote v. Colvin, 3 Johns. 216; Murdock v. Hughes, 7 Sraed. & M. 
 219; Johnson V. Dougherty, 18 N. J. Eq. 406; Robb's Appeal, 41 Pa. 
 45; Duncan v. Jandon, 15 Wall. 165; Hubbard V. Burrell, 41 Wis. 365; 
 Barrett V. Bamber, 81 Pa. St. 247; McLarren V. Brewer, 51 Me. 402; 
 Homer V. Homer, 107 Mass. 82; Jones t?. Dexter, 130 Mass. 380; Shaw 
 V. Spencer, 100 Mass. 382; Watson V. Thompson, 12 R. I. 466; Schlaefer 
 V. Carson, 52 Barb. 510; Ferris v. Van Vechten, 73 N. Y. 113; Derry V. 
 Derry, 74 Ind. 560; Reickhoff v. Brecht, 51 Iowa 633; White f. Drew, 42 
 Mo. 561; Tilford r. Torrey, 53 Ala. 120; Coles v. Allen, 64 Ala. 98; Moss 
 V. Moss, 95 111. 449; Winkfield V. Brinkman, 21 Kan. 689; Thomas V. 
 Standiford, 49 Md. 181; Tracy v. Kelley, 52 Ind. 535; Dodge v. Cole, 
 97 111. 338; Settembre r. Putnam, 30 Cal. 490; Jenkins v. Frink, 30 
 Cal. 586; Keech v. Sandford, Sel. Cas. Ch. 61, 1 Eq. Ld. Cas. 48; 
 Riehl V. Evansville Founding Assn., 104 Ind. 70; Paxton V. Stuart, 80 
 Va. 873; Phillips f. Overfield, 100 Mo. 467; McEachin v. Stewart, 106 
 N. C. 336. " A constructive trust arises against one who, by falsely rep- 
 resenting to B. that he is acting for C., obtains from B. property which 
 B. intended to give to C. ; and that trust may be enforced by C., irre- 
 spective of the question whether C. had an enforceable claim against 
 II. ' Johnston r. Reilly (X. J. 1904), 57 Atl. Rep. 1049. 
 
 44 Phillips r. Overfield, 100 Mo. 406. 
 
 4sBulkley r. Wilford. 8 Bligh. (IT. 8.) Ill; Chester v. Urwick, 23 
 Beav. 407; Church p. Rulnnd, 64 Pa. St. 432; McCormick V. Grogan, L. 
 R. 4 H. L. 82, 97, per Lord Westbury; Podmore v. Gunning, 7 Sim. 
 
 541
 
 368 TRUSTS. [PART n. 
 
 without the competition of one who desired to make the same 
 purchase hy fraudulently promising the latter the benefit of 
 such purchase, if he refrains from competition. 40 But in all 
 such cases the elements of fraud, and not the bare verbal 
 promise, gives rise to the constructive trust, and if there be 
 no fraud, there will be no constructive trust. 47 The invalidity 
 of the voluntary conveyance against the creditors of the gran- 
 tor may be ascribed to the application of the same principle. 
 The creditors have a constructive trust in the property of the 
 debtor which follows the land into the hands of the volun- 
 tary grantees. 48 A constructive trust will also arise in favor 
 of a principal, where the agent buys property and takes a 
 
 644; Hoge t. Hoge, 1 Watts, 163, 213; Dowd 1). Tucker, 41 Conn. 197; 
 Williams r. Vreeland, 29 N. J. Eq. 417. 
 
 Combs v. Little, 3 Green Ch. 410; Marlatt v. Warwick, 18 N. J. 
 'Eq. 108; Merritt v. Brown, 21 Id. 401, 404; Troll v. Carter, 15 W. Va. 
 567; Wolford V. Herrington, 86 Pa. St. 39; 1 Eq. Ld. Cas. 350-364 
 (4 Am. ed.) ; Hunt V. Roberts, 40 Me. 187; Hodges v. Howard, 5 R. 1. 
 149; Fraser v. Child, 5 E. D. Smith 153; Hoge V. Hoge, 1 Watts, 163, 
 214; Cousins v. Wall, 3 Jones' Eq. 43; Ryan v. Dox, 34 N. Y. 307; 
 and Wheeler v. Reynolds, 66 Id. 227; Dodd V. Wakeman, 26 N. J. Eq. 
 484; Walker v. Hill's Exrs., 22 Id. 519; Farnham v. Clements, 51 Me. 
 426; McCulloch V. Cowhed, 5 Watts & S. 427, 430; Kisler v. Kisler, 2 
 Watts, 323. 
 
 47Fattison v. Horn, 1 Grant's Cas. (Pa.) 301; Barnett v. Dough- 
 erty, 32 Pa. St. 371; Campbell V. Campbell, 2 Jones' Eq. 364; Cham- 
 bliss v. Smith, 30 Ala. 366; Leman v. Whitley, 4 Russ. 423; Levy v. 
 Brush, 45 N. Y. 586; Wheeler v. Reynolds, 66 Id. 227; Payne V. Patter- 
 son, 77 Pa. St. 134; Bennett V. Dollar Sav. Bank, 87 Id. 382; Hon V. 
 Hon, 70 Ind. 135; Gibson V. Decius, 82 111. 304; Farnham v. Clements, 
 51 Me. 426. " Though a constructive trust may be proved by parol, 
 the evidence is insufficient unless ' it is full, clear, and convincing.' " 
 Tillar v. Henry (Ark. 1905), 88 S. W. Rep. 573. 
 
 48 Hill v. Eliot, 12 Miss. 31; Partridge r. Messer, 14 Gray, 180; Case 
 r. Gerrish, 15 Pick. 49; Bliss v. Matteson, 45 N. Y. 22; Dewey v. Moyer, 
 72 N. Y. 70; Hasten V. Castner, 31 N. J. Eq. 697; Clark v. Douglass, 62 
 Pa. St. 408; Gridley v. Watson, 53 111. 186; Fellows v. Smith, 40 Mich. 
 689; Cowen v. Alsop, 51 Miss. 158; Crawford v. Kirksey, 55 Ala. 282; 
 Church r. Chapin, 35 Vt. 223; Freeman v. Burnham, 36 Conn. 469; 
 Pomeroy r. Bailey, 43 N. H. 118; Stewart v. Rogers, 25 Iowa, 395; see 
 also post, Sec. 566. 
 542
 
 CH. XIV.] TRUSTS. 369 
 
 deed in his own name, when he has been instructed to buy 
 the property for his principal. 49 So also is there a construc- 
 tive trust in favor of the wife, where a husband conveys an 
 estate to a third person with an oral agreement that the 
 grantee is to convey the same to the wife. 50 And it may be 
 stated generally that whenever one is in a fiduciary relation 
 with another, and in violation of his duties to such beneficiary, 
 acquires property or profit, which ought to have gone to such 
 beneficiary, the property or profit so acquired is charged 
 with a constructive trust. 51 
 
 369. Interest of the cestui que trust. This subject has 
 in the main been already explained while treating of uses and 
 trusts as they existed before the statute, 52 and nothing more 
 need now be done than to refer to the more important pe- 
 culiarities of modern trusts, in which they differ from uses. 
 Generally, trusts at the present day have all the characteris- 
 es Rose v. Hayden, 35 Kan. 106; Reese v. Wallace, 113 111. 589; Stew- 
 art V. Duffy, 116 111. 47; Storm Lake Bank v. Mo. Val. Ins. Co., 66 Iowa, 
 617; Hodge V. Twitchell, 33 Minn. 389; McLemore V. Carter (Miss.), 
 7 So. Rep. 357. But see contra, Bank of Springfield f. W. R. R. Co., 
 86 Mo. 75. 
 
 soFischbeck v. Gross, 112 111. 208; Hall v. Linn, 8 Col. 264. 
 si Baker v. Whiting, 3 Sumn. 475, 495 ; Kelley v. Greenleaf, 3 Story, 
 43, 101 ; Huson v. Wallace, 1 Rich. Eq. 1, 2, 3, 7 ; Lacy v. Hale, 37 Pa. 
 e>t. 360; Barrett v. Bamber, 81 Id. 247; Winkfield v. Brinkman, 21 Kan. 
 J82; Dunlop v. Richards, 2 E. D. Smith, 181; Struthers V. Pearce, 51 
 N. Y. 357; Leach v. Leach, 18 Pick. 68, 76; Burdon v. Barkus, 3 Gift". 
 412; 4 De G. F. & J. 42; Holridge v. Gillespie, 2 Johns. Ch. 30; Van 
 Home v. Fonda, 5 Id. 388, 407; Webster v. King, 33 Cal. 348; Guerrero 
 j. Ballerino, 48 Id. 118; Tracy V. Colby, 55 Id. 67; Cookson V. Richard- 
 Am, 69 111. 137; Reickhoff v. Brecht, 51 Iowa, 633; Treadwell v. Mc- 
 eon, 7 Baxt. 201; Newton v. Taylor, 32 Ohio St. 399; Barrett v. 
 flamber, 81 Pa. St. 247; Jones v. Dexter, 130 Mass. 380; Blauvelt v. 
 Ackerman, 20 N. J. Eq. 141; Grumley v. Webb, 44 Mo. 444; Swin- 
 ouriie v. Swinburne, 28 N. Y. 568; Bennett v. Austin, 81 Id. 308; Man- 
 ning r. Hayden, 5 Sawy. 360; Broyler V. Nowlin, 59 Tenn. 191; Pin- 
 dall v. Trevor, 30 Ark. 249; Jeffray r. Towar (N. J. Ch. 1903), 54 Atl. 
 Rep. 817; Miller v. Butler (Ga. 1905), 49 S. E. Rep. 754. 
 z See ante, Sees. 324, 325, 332, 337. 
 
 543
 
 370 TKl'STS. 
 
 tics of the ancient use. They are equitable estates, and en- 
 forceable solely in equity. 53 
 
 370. Liability for debts. For a long time, and, indeed, 
 until within a late period, an equitable estate was not subject 
 to liability for the debts of the beneficiary ; but now in Eng- 
 land, and in most of the States of this country, they are by 
 statute made applicable to the satisfaction of his debts. 54 But 
 the trust may be so limited as that it will be terminated when 
 an attempt is made to subject it to the debts of the cestui que 
 trust. The rule seems to be well established that if the trust 
 is executory and its duration is discretionary in the trustee, 
 or where the trust by the terms of the deed or will is to cease 
 upon an attempted involuntary conveyance (i. e., when some 
 creditor seizes upon the estate for the payment of a debt), or 
 an assignment in bankruptcy, or upon the insolvency of the 
 cestui que trust, these are permissible limitations upon the 
 estate of the beneficiary, and will prevent the transfer of any 
 interest therein to the creditors, even though there be no 
 limitation over. 55 But it will not be permitted to a man to 
 
 53 Co. Lit. 290 b, note 249, Sec. 14 ; 2 Spence Eq. Jur. 875 ; 1 Prest. 
 Est. 189; 1 Spence Eq. Jur. 497; Cholmondeley v. Clinton, 2 Jac. & 
 W. 148; Burgess v. Wheate, 1 Eden, 223; Orleans v. Chatham, 2 Pick. 
 29; Banks v. Sutton, 2 P. Wjns. 713; Bush's Appeal, 33 Pa. St. 88; 
 Price v. Sisson, 13 N. J. 174; 2 Pom. Eq. Jur. Sec. 989; 2 Washburn on 
 Real Prop. 454^457. " The interest of a cestui que trust is an equitable 
 estate in the land or other thing, of which the legal title is vested in the 
 trustee." Laughlin v. Leigh, 112 111. App. 119, judgment affirmed 
 Leigh v. Laughlin (111. 1904), 71 N. E. Rep. 881, 211 111. 192. "A 
 cestui que trust can maintain an action in relation to the trust prop- 
 erty only after the trustee has refused to sue, and the complaint must 
 show such refusal." Woolf v. Barnes (N. Y. Sup. 1904), 93 N. Y. S. 
 219. 
 
 -* 1 Prest. Est. 144; 2 Washburn on Real Prop. 456; Pratt r. Colt, 2 
 Freem. 139; Kip v. Bank of New York, 10 Johns. 63; Jackson v. 
 Walker, 4 Wend. 462; Foote V. Colvin, 3 Johns. 316; Bush's Appeal. 
 33 Pa. St. 85; Hutchins v. Heywood, 50 N. H. 491; Campbell r. 
 Foster, 35 N. Y. 361; Kennedy v. Nunan, 52 Cal. 326; Wis. Rev. St it 
 Ch. 134, Sec. 37; Rudd v. Van Der Hagan (Ky.), 5 S. W. Rep. 416. 
 
 55 Nichols r. Levy, 5 Wall. 433; Nichols i: Eaton, 91 U. S. 710; 
 544
 
 CH. XIV.] TRUSTS. 371 
 
 settle his estate in trust for himself, and so limit it that his 
 creditors cannot touch it. The rule only extends to the settle- 
 ment of such trusts by friends and relatives, whose desire is to 
 secure means of support for the beneficiary, free from liabil- 
 ity for his debts. 50 But a condition against liability for debts 
 is always good, where the property is conveyed to charitable 
 uses. 57 
 
 371. Words of limitation in trusts. Unlike legal estates 
 at common law, in the limitation of trusts, the same technical 
 words are not required to be used. A trust in fee may be 
 created without using the word heirs, if the intention of .the 
 grantor is manifested in any other way. And such intention 
 will be presumed if the terms of the trust cannot in any other 
 manner be satisfied. This rule not only refers to the quantity 
 or duration of the equitable estate in the cestui que trust, but 
 if the equitable estate under this construction is larger than 
 the legal estate in the trustee according to the ordinary legal 
 construction, the latter estate will be enlarged by construction 
 to meet all the demands of the trust estate, and the trustee 
 will take a fee, even though the estate is not limited to heirs. 58 
 
 Keyser v. Mitchell, 67 Pa. St. <173; Rife v. Geyer, 59 Pa. St. 393; 
 Leavitt v. Beirne, 21 Conn. 1, 8; Hill v. McRae, 27 Ala. 175; Easterly 
 v. Kenny, 36 Conn. 18; Fisher v. Taylor, 2 Rawle 33. 
 
 B Lester v. Garland, 5 Sim. 205 ; Phipps v. Lord Ennismore, 4 Russ. 
 131; Mackason's Appeal, 6 Wright, 330; Ashhurst's Appeal, 77 Pa. 
 St. 464; Brooks v. Pearson, 27 Beav. 181; Partridge v. Cavender, 96 
 Mo. 452; Lampert v. Haydel, 96 Mo. 439; Cunningham v. Corey, 59 
 Mich. 494. But see Markham v. Guerant, 4 Leigh, 279; Johnston v. 
 Zane's Trustees, 11 Gratt. 552, and Hill v. McRae, 27 Ala. 175, where 
 trusts for the benefit of the grantor and his wife or family have been 
 supported against the claim of creditors. 
 
 57 Butterfield v. Wilton Academy (Iowa), 38 N. W. Rep. 390. 
 
 esvilliers v. Villiers, 2 Atk. 71; Gates v. Cooke, 3 Burr. 1684; Shaw 
 v. Weigh, 2 Stra. 803; Stanley v. Colt, 5 Wall. 168; Neilson v. Lagow, 
 12 How. 98; Fisher v. Fields, 10 Johns. 505; Gould v. Lamb, 11 Mete. 
 87; Welch v. Allen, 21 Wend. 147; Pearce v. Savage, 45 Me. 90; Greene 
 v. Wilbur, 15 R. I. 251; Chase v. Cartwright (Ark.), 14 S. W. Rep. 
 90; Boston, etc., Trust Co. v. Mixter, 146 Mass. 100; Doe v. Ladd, 
 
 35 545
 
 371 / TRUSTS. [PART n. 
 
 As a corollary to the above rule, it has been well established 
 that trustees will not take any larger legal estate than is 
 required for the purposes of the trust. If, by the express 
 limitation of the deed, the trustee has a larger estate, as, for 
 example, he has a fee, and the trust is only a life estate, there 
 is a resulting use in the remainder to the grantor and his heirs, 
 which, under the statute, will l^ executed, leaving in the 
 trustee only a legal life estate. 59 But these are only rules of 
 construction by which the character and duration of the 
 legal and equitable estates in the truct aro determined where 
 the intention of the grantor is not clearly expressed. If the 
 estate in the trustee is expressly limited for life, the fact 
 that it is not altogether sufficient to support the equitable es- 
 tate will not enable a court of equity to enlarge it by construc- 
 tion. 00 And so also if the estate in the trustee is larger than 
 
 77 Ala. 223; Boone V. Davis, 64 Miss. 133. Words of limitation are 
 not now required, in a number of the States, in order to create an es- 
 tate in fee. The above statement applies only to those States where 
 the common-law rule, in respect to words of limitation, still prevails. 
 " Where a settlor by deed conveys an equitable estate in fee simple 
 to trustees without words of limitation, in order that the equitable fee 
 simple may pass to them, it is necessary that the settlor should either 
 refer to other words in that or some other deed which show an in- 
 tention that the absolute interest is to pass to them, or that he should 
 use words which show that the trustees are to take all the estate and 
 interest that the settlor had." In re Irwin (Eng. 1904), 73 Law J. 
 Ch. 832 [1904], 2 Ch. 752; Irwin v. Parkes, Id. "A deed to a re- 
 ligious society's trustees and their successors, in fee, without restriction 
 or limitation, does not create a trust." Shaeffer V. Klee (Md. 1905), 
 59 Atl. Rep. 850. 
 
 59 Doe v. Davis, 1 Q. B. 438 ; Doe v. Barthrop, 5 Taunt. 382 ; Barker 
 t'. Greenwood, 4 M. & W. 421; Doe v. Ewart, 7 A. & E. 636; Ward 
 v. Amory, 1 Curtis C. Ct. 419; Wells V. Heath, 10 Gray, 25; Norton v. 
 Norton, 2 Sandf. 296; Bush's 'Appeal, 33 Pa. St. 85; Pearce v. Savage, 
 45 Me. 90; Renziehausen v. Keyser, 48 Pa. St. 351. 
 
 eo Waiter v. Hutchinson, 1 B. & C. 72 1 ; Evans v. King, 3 Jones Eq. 
 387. It is possible that this strict rule would not be observed generally 
 in this country. At any rate, even an express limitation for life to the 
 trustees may probably be enlarged into a fee by construction, if the deed 
 gave affirmative evidence of the donor's intention that the trustee is to 
 546
 
 CH. XIV.] TRUSTS. 372 
 
 the equitable estate, but the latter is uncertain and indefinite 
 in its duration, there will be no execution of the resulting use 
 in the grantor until the trust has terminated, or has been 
 rendered certain. The uncertainty of duration of the trust 
 makes the resulting use contingent, corresponding somewhat to 
 the legal possibility of reverter. 81 
 
 372. Doctrine of remainders applied to trusts. If the 
 future estate in a trust is contingent, and is preceded by 
 a particular estate, the destruction of the particular estate 
 by the act of the first cestui que trust, or its natural termina- 
 tion before the happening of the contingency, does not defeat 
 the contingent trust, as it would have done if the future 
 estate had been a legal contingent remainder, or one by way 
 of use. The future estate in a trust is altogether independent 
 of the prior estate, and need not necessarily take effect im- 
 mediately upon the termination of the latter. 62 But the rule, 
 in Shelley's Case, which has already been explained, applies 
 generally to all executed trusts, so that when an estate is 
 limited in trust to A. for life and remainder in fee to his 
 heirs, A. will be considered cestui que trust in fee, but this 
 rule does not apply to executory trusts, and wherever it is 
 the clearly expressed intention of the grantor that the trust 
 shall not vest in fee in the first taker, the rule will not be 
 enforced, and the heirs will take as independent purchasers. 68 
 
 have as large an estate as the nature of the trust requires. " The es- 
 tate of a trustee in real estate is commensurate with the powers con- 
 ferred by the trust and the purposes to be effected by it." Olcott f. 
 Tope (111. 1904), 115 111. App. 121; decree affirmed, 72 N. E. Rep. 751, 
 213 111. 124. 
 
 si Doe f. Ewart, 7 A. & E. 636 ; Doe v. Davies, 1 Q. B. 437 ; Doe r. 
 Nichols, 1 B. & C. 341; Bush's Appeal, 33 Pa. St. 85; Morgan v. 
 Moore, 3 Gray, 323; Selden v. Vermilya, 3 Comst. 525; Cumberland 
 v. Graves, 9 Bark. 595. 
 
 22 Washburn on Real Prop. 463; Fearne Cont. Rem. 304; 305; 1 
 Spence Eq. Jur. 505; 1 Prest. Abstr. 146; Scott t;. Scarborough, 1 
 Beav. 168; Wainwright V. Sawyer, 150 Mass. 168; People's Sav. Bank 
 v. Denig, 131 Pa. St. 241; Barnes v. Dow, 59 Vt. 530. 
 
 aTud. Ld. Caa. 503, 504; 2 Washburn on Real Prop. 455; 1 Spenee 
 
 547
 
 373 TRUSTS. [PART 11. 
 
 373. How created and assigned. Like uses before the 
 statute, no particular form of words is necessary in the crea- 
 tion and declaration of trusts. Any words which manifest 
 the intention that the person named shall have the beneficial 
 interest in the estate will be sufficient. 64 And even words, 
 
 Eq. Jur. 503; Croxall v. Shererd, 5 Wall. 281. "The assent of a life 
 tenant of a trust fund to an impairment of the fund cannot bind the 
 remainderman, but they are entitled to the income from an unim- 
 paired fund." Bennett v. Pierce (Mass. 1905), 74 N. E. Rep. 360, 188 
 Mass. 186. 
 
 o* Co. Lit. 290 b, note 249, Sec, 14; 1 Spence Eq. Jur. 506, 507; 
 Gomez V. Tradesman's Bk., 4 Sandf. 102; Ames V. Ashley, 4 Pick. 71; 
 Scituate t?. Hanover, 16 Pick. 222; Fisher V. Fields, 10 Johns. 495; 
 Zaver v. Lyons, 40 Iowa, 510; Smith V. Ford, 48 Wis. 115; Hill V. 
 Den, 54 Cal. 6; Richardson V. Inglesby, 13 Rich. Eq. 59; Lyle V. Burke, 
 40 Mich. 499; Morrison V. Kinstra, 55 Miss. 71; Kitchen V. Bedford, 
 13 Wall. 413; Russell v. Switzer, 63 Ga. 711; Wallace v. Wainwright, 
 87 Pa. St. 263; Selden's Appeal, 31 Conn. 548; McElroy V, McElroy, 
 113 Mass. 509; Wheeler V. Smith, 9 How. 55; Slocum V. Marshall, 2 
 Wash. C. Ct. 397; Taft V. Taft, 130 Mass. 461; Toms V. Williams, 41 
 Mich. 552; Whitcomb V. Cardell, 45 Vt. 24; O'Rourke v. Beard (Mass.), 
 23 N. E. Rep. 576; O'Riley . McKiernan (Ky.), 13 S. W. Rep. 360; 
 Walburton v. Camp, 55 N. Y. Super. Ct. 290; Saunderson v. Broadwell, 
 82 Cal. 132; Hellman v. Me Williams, 70 Cal. 449; Carter v. Gibson 
 (Neb.), 45 N. W. Rep. 634; Phipard V. Phipard, 55 Hun 433; Gaion fJ. 
 Williams, 7 N. Y. S. 786; Kintner v. Jones, 122 Ind. 148; Macy v. Wil- 
 liams, 55 Hun 489. The words used not only must show clearly an 
 intention to create a trust, but they must themselves create the trust, 
 as verba de prcesenti. A promise to create a trust, if voluntary will 
 not raise a trust, either express or implied, while such a promise for a 
 valuable consideration, would raise an implied trust, which would be 
 enforced by a court of equity. Young V. Young,. 80 N. Y. 422; Del- 
 liger's Appeal, 71 Pa. St. 425; Hays V. Quay, 68 Pa. St. 263; Martin 
 v. Funk, 75 N". Y. 134; Olney 0. Howe, 89 111. 556; Andrews v. Hob- 
 son, 23 Ala. 219; Wyblc v. McPheters, 52 Ind. 393; Estate of Webb, 
 49 Cal. 541; Neves v. Scott, 9 How. 196; Blanchard v. Sheldon, 43 
 Vt. 512; Minor v. Rogers, 40 Conn. 512; Adams v. Adams, 21 Wall. 
 185; Taylor v. Henry, 48 Md. 550; Ownes v. Ownes, 23 N. J. Eq. 60; 
 McNulty v. Cooper, 3 Gill. & J. 214; Davis v. Ney, 125 Mass. 590. " An 
 intended, but imperfect, gift cannot be enforced as a trust, where the 
 essential elements of a declaration of trust cannot be fairly inferred." 
 Brown v. Crafts (Me. 1903), 56 Atl. Rep. 213, 98 Me. 40. "A will de- 
 vising land to testator's wife for life, ' in trust by her for the bene- 
 548
 
 CH. XIV.] TRUSTS. 373 
 
 which in their ordinary acceptation are precatory instead of 
 being mandatory, when used by a testator in respect to the 
 estate devised, will be sufficient to raise a trust, if from the 
 whole will a clear intention to create a trust may be gathered. 
 Thus, the words entreat, desire, hope, recommend, etc., have 
 been held to declare a trust. But there must be no doubt or 
 uncertainty as to the person who is to be benefited, or as to 
 the property to be subjected to the trust, and the intention of 
 the testator must be fully established by a fair construction 
 of the will. 65 It has also been held that no trust is created 
 in the children of the devisee, where the devise was made to 
 her "for the sole use of herself and children," where the 
 intention was to make them tenants in common or remainder- 
 men with the mother, is not more clearly manifested in the 
 will. 66 The declaration must, and can only, be made by the 
 owner of the legal estate; but for the creation of the trust it 
 
 fit of ' certain beneficiaries, and directing that after her death it be 
 sold and the proceeds divided between the beneficiaries, but not nam- 
 ing any purpose of a trust, does not create a trust." Bank of Ukiah 
 V. Rice (Cal. 1904), 76 Pac. Rep. 1020. 
 
 osPennock's Estate, 20 Pa. St. 274-280; Foose V. Whitmore, 82 N. 
 Y. 405; Dresser v. Dresser, 46 Me. 48; Spooner v. Lovejoy, 108 Mass. 
 629; Parsley's Appeal, 70 Pa. St. 153; Williams v. Worthington, 49 
 Md. 572; Cook v. Ellington, 6 Jones Eq. 371; Tolson v. Tolson, 10 
 Gill. & J. 159; Young v. Young, 69 N. C. 309; McKee's Admrs. v. 
 Means, 34 Fla. 349; Enders v. Tasco (Ky.), 11 S. W. Rep. 818; Baker 
 v. Brown, 146 Mass. 369; Noe v. Kern, 93 Mo. 367; Wood v. Camden, 
 etc., Trust Co. (N. J.), 14 Atl. Rep. 885; Colton v. Colton, 127 U. S. 
 300; Taylor v. Martin (Pa.), 8 Atl. Rep. 928; Solomon v. Lawrence,. 
 52 N. Y. Super. Ct. 164; McClernan v. McClernan (Md.), 20 Atl. Rep. 
 908; Roset?. Hatch, 125-N. Y. 427; Ingersoll's Wills, 59 Hun 571; Whit- 
 comb's Estate, 86 Cal. 265. See also 2 Pom. Eq. Jur., Sees. 1014-1017. 
 But see Phillips t. Phillips, 112 X. Y. 197; Fullenwider v. Watson, 113". 
 Ind. 18; Sturgis f. Paine, 146 Mass. 354; In re Haven's Estate, 6 Dem. 
 456; Sale f. Thornsberry (Ky.), 5 S. W. Rep. 468; Lawrence v. Cooke, 
 104 N. Y. 632; Balfer v. Willigord, 70 Iowa 620; Rose v. Porter, 141 
 Mass. 309; Hopkins r. Glunt, 111 Pa. St. 287; Corby v. Corby, 85 Mo. 
 371; Zimmer v. Sennott (111.), 25 N. E. Rep. 774; Randall v. Randall, 
 (111.), 25 N. E. Rep. 780. 
 
 o Small v. Field, 102 Mo. 104. 
 
 549
 
 373 TRUSTS. [PAKT II. 
 
 is not necessary to transfer the legal estate to a third person 
 as trustee. A simple declaration by the owner of the land 
 that he holds it in trust for another, will transfer the beneficial 
 interest to the latter, and convert the legal owner into a 
 trustee, provided the requisite consideration is present in the 
 grant. 67 And it is not even necessary that the declaration 
 should be made to the proposed cestui que trust. It may be 
 made without his knowledge and yet be good, if he accepts it 
 within a reasonable time after he has heard of its existence 68 
 The declaration must of course, particularly where it is testa- 
 mentary, contain words of description sufficient to identify the 
 cestui que trust. 69 So, also, a tru^t cannot be created in a 
 deed by a declaration that a third party shall hold in trust 
 for the grantee the property which is formally conveyed by 
 the deed to the grantee. 70 It is different in the cases of 
 devises where the special intent of the testator to make a 
 trust could be carried out. 71 
 
 vr 1 Spence Eq. Jur. 507 ; Crop. v. Norton, 2 Atk. 76 ; Suarez V. 
 Pompelly, 2 Sandf. Ch. 336; Morrison v. Beirer, 2 Watts & S. 81; 
 Uraun V. Coats, 109 Mass. 581; Young v. Young, 80 N. Y. 422; Tan- 
 ner V. Skinner, 11 Bush. 120; Taylor v. Henry, 48 Md. 550; Ray v. Sim- 
 mons, 11 R. I. 266; Minor v. Rodgers, 40 Conn. 512; Boykin v. Pace's 
 Exr., 64 Ala. 68; Hill v. Den, 54: Cal. 6; Baldwin v. Humphrey, 44 N. 
 H. 609; Bond v. Bunting, 78 Pa. St. 210; Titchenell v. Jackson, 26 W_ 
 Va. 460. But see Scales v. Maude, 6 De G. M. & G. 43; Warriner v. 
 Rogers, L. R. 16 Eq. 340. 
 
 es Barrell V. Joy, 10 Mass. 221 ; Ward v. Lewi* , 4 Pick. 521 ; Beyant 
 r. Russell, 23 Pick. 508; Berly v. Taylor, 5 Hill V77; Shepherd v. Mc- 
 Evers, 4 Johns. Ch. 136; Scull v. Reeves, 2 Green Ch. 84; Skipwith's 
 Ex'rs. T. Cunningham, 8 Leigh 271. 
 
 Read v. Williams, 8 N. Y. S. 24 ; In re Foley's Will, 10 N. Y. S. 
 12. " In the creation of a trust by will or deed the beneficiary must 
 be a definite, certain, ascertainable pel son, natural or corporate, other- 
 wise the trust must fail." Weaver v. Spurr (W. Va. 1904), 48 S. E. 
 Rep. 852. " A trust will not fail merely because of uncertainty in 
 whom the fee will vest in case the first beneficiary dies leaving issue 
 a contingency which may not arise." Orr f. Yates (111. 1904), 70 N. 
 E. Rep. 731, 209 111. 222. 
 
 '" Amrin V. Wilson, 15 Col. 236. 
 
 7i But see Pebling's Estate, 138 Pa. St. 442. 
 550
 
 CH. XIV.] TRUSTS. 374 
 
 374. Statute of Frauds. Before the Statute of Frauds 
 a trust could be created or transferred by an oral declaration. 
 No writing was necessary for its valid creation. But the 
 Statute of Frauds requires that all declarations or creations 
 of trusts should be manifested and proved by some instrument 
 in writing signed by the party creating the trust. But the 
 statute necessarily does not apply to implied, resulting and 
 constructive trusts, and the original English statute expressly 
 excepted them from its operation. These trusts may, there- 
 fore, be proved by parol evidence. 72 The statute, however, 
 covers all express trusts, and these must invariably be proved 
 by some writing. 73 But it is not required that the trust 
 shall be created by some instrument in writing. The writing 
 is only necessary for its proof. Therefore the writing need 
 not have been made for the purpose of creating or declaring a 
 trust; it can act by way of an admission, as evidence of an 
 existing trust. 74 The statute only requires the writing to 
 
 72 2 Washburn on Real Prop. 445, 446, 447; 1 Spence Eq. Jur. 497, 512. 
 See ante, Sees. 364, 368. " Under the express provisions of Rev. St. 
 Mo. 1899, Sec 3417, the statute of frauds has no application to an ac- 
 tion to establish a resulting trust relating to lands." McMurray v. 
 McMurray (Mo. 1904), 79 S. W. Rep. 701. "Constructive trusts are 
 not within the statute of frauds." Avery f. Stewart (N. C. 1904), 48 
 S. E. Rep. 775. 
 
 "Hall v. Young, 47 N. H. 134; Bartlett f. Bartlett, 14 Gray 278; 
 Bragg V. Paulk, 42 Me. 502; Moore V. Moore, 38 N. H. 382; Hear V. 
 Pujol, 44 Cal. 230; Movan v. Hays, 1 Johns. Ch. 339; Lynch v. 
 Clements, 24 N. J. Eq. 431; Patton V. Beecher, 62 Ala. 599; Cornelius 
 v. Smith, 55 Mo. 528; Ambrose v. Otty, 1 P. Wms. 322; Wolford v. 
 Farnham, 44 Minn. 159. See Shelton V. Shelton, 5 Jones Eq. 292; 
 Osterman v. Baldwin, 6 Wall. 116; Bates f. Kurd, 65 Me. 180; Homer 
 v. Homer, 107 Mass. 82; Faxon v. Folvey, 110 Mass. 392; Fordyce v. 
 Willis, 3 Bro. Ch. 577; Wallace v. Wainwright, 87 Pa. St. 263; Barnes 
 v. Taylor, 27 N. J. Eq. 259; Packard v. Putnam, 57 N. H. 43; De- 
 Laurengel v. De Boom, 48 Cal. 581; Reid v. Reid, 12 Rich. Eq. 213; 
 Kingsbury f. Burnside, 58 111. 310; Gibson f. Foote, 40 Miss. 788. 
 
 74 1 Cruise Dig. 390 ; Foster t;. Vale, 3 Ves. 707 ; Ambrose v. Am- 
 brose, 1 P. Wms. 322; Davis v. Otty, 33 Beav. 540; Steer v. Steer, 5 
 Johns. Ch. 1; Jackson v. Moore, 6 Cow. 706; McClellan r. McClellan, 65 
 Me. 500; Movan v. Hays, 1 Johns. Ch. 339; Pinney v. Fellows, 51 Vt. 
 
 551
 
 374 TRUSTS. [PART n. 
 
 show that there is a trust, and to give its limitations. If the 
 writing is but an imperfect presentation of the trust and the 
 terms there stated are uncertain, the trust will not be en- 
 forced. Parol evidence is not admissible to supply what has 
 been omitted. 75 Letters, indorsements on envelopes, acknowl- 
 edgments and admissions in equity pleadings have been Tield 
 sufficient writing for the proof of a trust. 76 But they are not 
 conclusive. 77 The foregoing statements in respect to the 
 informality, which is permissible in the declaration of trusts, 
 have reference only to transactions of this sort inter vivos. If 
 the trust is declared animo testandi, all the formalities required 
 
 625; Cornelius v. Smith, 55 Mo. 528. But the evidence must in that case 
 be clear and free from doubt. Rogers v. Rogers, 87 Mo. 251. 
 
 75 Foster V. Vale, 3 Ves. 707; Wright v. Wright, 1 Ves. Sr. 409; 
 Brydges V. Brydges, 3 Ves. 120 ; Steere V. Steere, 5 Johns. Ch. 1 ; Park- 
 hurst v. Van Courtlandt, 1 Johns. Ch. 273; Abeel v. Radcliffe, 13 
 Johns. 297; Patton V. Beecher, 62 Ala. 579; Russell v, Switzer, 63 Ga. 
 711; Wheeler v. Smith, 9 How. 55, 2 Pom. Eq. Jur., Sec. 1009. "A 
 mere parol agreement to convey land to another raises no trust in the 
 latter's favor, and comes within the provisions of the statute of frauds." 
 Avery v. Stewart (N. C. 1904), 48 S. E. Rep. 775. "To take an oral 
 trust out of the statute of frauds on the ground of the obtention of the 
 legal title through fraud, an element of positive fraud must be shown." 
 Ammonette V. Black (Ark. 1904), 83 S. W. Rep. 910. 
 
 76 Foster v. Vale, 3 Ves. 696; Smith v. Mathews, 3 De G. F. & J. 
 139; Montague v. Hayes, 10 Gray, 609; Pratt v. Ayer, 3 Chand. 265; 
 Fisher v. Fields, 10 Johns. 495; Union Mut. Ins. Co. V. Campbell, 95 
 111. 267; De Laurencel v. De Boom, 48 Cal. 581; Moore v. Pickett, 62 
 111. 158; Kingsbury v. Burnside, 58 111. JPO; McClellan v. McClellan, 
 65 Me. 500; Bates v. Hurd, 65 :.le. 180; Packard v. Putnam, 57 N. H. 
 43; Baldwin v. Humphrey, 44 N. Y. 609; Ivory v. Burns, 56 Pa. St. 
 300; Johnson V. Delaney, 35 Texas, 42; Patton v. Chamberlain, 44 
 Mich. 5 ; Broadrup v. Woodman, 27 Ohio St. 553 ; Loring v. Palmer, 1 18 
 U. S. 321; Weaver v. Emigrant, etc., Say. Bank, 17 Abb. N. C. 82; 
 Titchenell v. Jackson, 26 W. Va. 754; McCandless v. Warner, 26 W. 
 Va. 754; Macy v. Williams, 8 N. Y. S. 658; 55 Hun 489; Fowler V. 
 Bowery Sav. Bank, 47 Hun 390. 
 
 "Parkham v. Suffolk Sav. Bank (Mass.), 24 N. E. Rep. 43; Beaver 
 v. Beaver, 117 N. Y. 421. 
 
 552
 
 CH. XIV.] TRUSTS. 37 
 
 in the execution of wills, must here be observed in the declara- 
 tion of the trust. 78 
 
 375. How affected by want of a trustee. The trust is 
 never allowed to fail because there is no trustee to hold the 
 legal estate. And it matters not from what cause the failure 
 of the trustee may arise, equity follows the land into whose- 
 soever hands it may fall, and compels them to hold the legal 
 estate subject to the trust. The court will either compel the 
 owner of the legal estate to perform the trust, or it will 
 appoint another to act as trustee, and direct a conveyance to 
 him. 79 
 
 376. Removal of trustees. The court of equity has the 
 general power to appoint new trustees whenever the interests, 
 of the cestui que trust demand such appointment. If the 
 trustee leaves the State, loses his mind, becomes insolvent, or 
 does anything else which makes it prejudicial to the cestui 
 que trust for him to remain in charge of the trust, the court 
 may remove him and appoint another in his stead. 80 And 
 
 78 Chase v. Stockett (Md.), 19 Atl. Rep. 761. "Under the express 
 provision of Civ. Code 1895, Sec. 3153, all express trusts must be in 
 writing." Eaton v. Barnes (Ga. 1904), 49 S. E. Rep. 593. "A deed 
 conveying property to be held in trust for a third party, where such 
 trust is in parol, is void under the statute of frauds, and cannot be 
 enforced against the grantee." Rogers V. Richards (Kan. 1903), 74 Pac. 
 Rep. 255. " A written declaration of trust, made after a conveyance 
 of real estute upon a parol trust agreement, is valid and enforceable." 
 Gallagher V. Northrup (111. App. 1904), 114 111. App. 368. 
 
 Co. Lit. 290 b, note 249, Sec. 4 ; 1 Cruise Dig. 403, 460 ; Wilson v. 
 Towle, 36 N. H. 129; Shepherd v. McEvars, 4 Johns. Ch. 136; Adams V. 
 Adams, 21 Wall. 185; Peter v. Beverly, 10 Pet. 532; Crocheron .v. 
 Jaques, 3 Edw. Ch. 207 ; Druid Park, etc., Co. v. Dettinger, 53 Md. 46 ; 
 Cloud v. Calhoun, 10 Rich. Eq. 358; Mills V. Haines, 3 Head, 335; 
 White V. Hampton, 10 Iowa, 244; . c. 13 Iowa, 261; ISchlessenger f. 
 Mallard, 70 Cal. 326; Kenady v. Edwards, 134 U. S. 117; Chesnutt V. 
 Gann, 76 Tex. 150. 
 
 802 Washburn on Real Prop. 475; Sparhawk v. Sparhawk, 114 Mass. 
 356; Scott v. Rand, 118 Mass. 215; Shepherd v. McEvers, 4 Johns. Ch. 
 136; Bloomer's Appeal, 83 Pa. St. 45; McPherson v. Cox, 96 U. S. 404; 
 
 553
 
 376 TRUSTS. [PART n. 
 
 although at common law the legal estate in trust, upon the 
 death of the trustee, descended to his heirs to be administered 
 by them, and this is still the general rule, yet if it would be 
 beneficial to the estate that a new trustee be appointed, the 
 court may do so. 81 By recent statutes in England, and in 
 some States, the appointment of a new trustee is made to 
 operate upon the legal title, and pass it to him from the 
 former trustee. 82 But where there is no statute of that kind 
 the appointment does not effect a transfer of the legal estate. 
 A court of equity, in making the appointment, at the same 
 time decrees a conveyance to the new trustee, and will 
 punish for contempt of court if the holder of the legal 
 title refuses. 83 
 
 Satterfield ,v. John, 53 Ala. 121; No. Ca. R. R. v. Wilson, 81 N. C. 223; 
 Preston v. Wilcox, 38 Mich. 578; Green v. Blackwell, 31 N. J. Eq. 37; 
 Re Mayfield, 17 Mo. App. 684; City Council f. Walton, 77 Ga. 517; 
 Loveman r. Taylor, 85 Tenn. 1; Morgan's Estate, 8 Pa. Co. Ct. 260. In- 
 solvency does not, however, incapacitate the trustee to act as long as the 
 court does not remove him. Rankin V. Barcroft, 114 111. 441. 
 
 si2 Washburn on Real Prop. 476, 477; 3 Kent's Com. 311; Lewin on 
 Tr. 303; Boone v. Childe, 10 Pet. 213; Berrien v. McLane, Hoffm. Ch. 
 420; Clark v. Taintor, 7 Cush. 567; Warden v. Richards, 11 Gray, 277; 
 Evans V. Shew, 71 Pa. St. 47; Gray V. Henderson, 71 Pa. St. 368; 
 Dunning v. Ocean Nat. Bk., 6 Lans. 396. In New York, by statute 
 the trust is made to vest in the Supreme Court, instead of descending 
 to the heirs of the deceased trustees. 1 R. S. N. Y. 730, Sec. 68. See 
 Ross v. Roberts, 2 Hun 90; Clark v. Crego, 51 N. Y. 647. Such seems 
 also to be the statutory rule in Michigan and Wisconsin ; 2 Washburn 
 on Real Prop. 476. If the trustee devises his trust-estate, as he may do 
 if not prohibited by statute, his devisee takes the place of his heir, 
 and may perform the trust. Marlow V, Smith, P. Wms. 198; Titley 
 V. Wolstenholme, 7 Beav. 425. 
 
 ssStat. 15, 16, Viet. Ch. 55, Sec. 1; Parker v. Converse, 5 Gray, 
 336; McNish V. Guerard. 4 Strobh. Eq. 66; Rev. Stat. Conn. Tit. 12; 
 Sec. 22 ; King v. Bell, 2S Conn. 598. 
 
 ssQ'Keefe . Calthorpe, 1 Atk. 17; Ex parte Greenhouse, 1 Madd. 
 109; Berrier v. McLane, Hoffm. Ch. 420; Webster v. Vandeventer, 6 
 Gray, 428; Wallace v. Wilson, 34 Miss. 357; Young v. Young, 4 Cranch, 
 499. " The power of a court of chancery to appoint a trustee in place 
 of a single trustee, who is totally disabled from the performance of 
 the duties of the trust, includes power to appoint a co-trustee with 
 
 554
 
 CH. XIV. ] TRUSTS. 377 
 
 377. Eefusal of trustee to serve. No one, by the unau- 
 thorized appointment of another, can be compelled to act as 
 trustee. To make the performance of the trust obligatory, he 
 must accept the trust expressly, or so interfere with the 
 trust property as to raise the presumption that he has accept- 
 ed. 84 But when he has accepted it expressly or impliedly, 
 he cannot of his own motion abandon it, or refuse to perform 
 the duties. The court may, in the exercise of its discretion, 
 relieve him from his obligation or compel him to serve, which- 
 ever course best subserves the interests of the cestui que 
 trust property as to raise the presumption that he has accept- 
 greater effect upon the validity of the trust than would his 
 death, or a failure to name a trustee in the deed creating the 
 trust. Another trustee would be appointed to take his place. 
 But the refusal must be a positive disclaimer of the trust ; for 
 otherwise the law will presume that the trust is beneficial to 
 the trustee as well as the cestui que trust, and that they both 
 have accepted it. A mere oral declination will not prevent 
 the declining trustee from subsequently entering upon the 
 
 him to aid in the performance of those duties." Force v. Force (N. J. 
 Ch. 1904), 57 Atl. Rep. 973. "Mere unfriendliness of the cestui que 
 trust and the trustee is not sufficient ground per se for the trustee's 
 removal." Polk v. Linthicum (Md. 1905), 60 Atl. Rep. 455. "The 
 refusal of a trustee to give full information to th- oestui 
 que trust as to the condition of the trust is a violation of the 
 relation." Woolf v. Barnes (N. Y. Sup. 1905), 93 N. Y. S. 219. 
 
 84 Baldwin v. Porter, 12 Conn. 473 ; Scull v. Reeves, 2 Green Ch. 4 ; 
 Shepherd 0. McEvers, 4 Johns. Ch. 136; Lewis V. Baird, 3 McLean, 
 58; Flint V. Clinton Co., 82 N. H. 430; Lyle v. Burke, 40 Mich. 499; 
 Hearst v. Pojol, 44 Cal. 230; Adams v. Adams, 21 Wall. 185; Arm- 
 strong v. Morrill, 14 Wall. 120; Montford v. Cadogan, 17 Ves. 485; 
 Urch v. Walker, 3 My. & Cr. 702; Barclay v. Goodloe's Excr., 83 Ky. 
 493. 
 
 ss Shepherd v. McEvers, 4 Johns. Ch. 136 ; Tainter v. Clark, 5 Allen, 
 66; Cruger v. Halliday, 11 Paige, 319; Bowditch v. Banuelos, 1 Gray, 
 220; Filchirst v. Stevenson, 9 Barb. 9; Forshaw v. Higginson, 20 Beav. 
 485; Tilden V. Fiske, 4 Dem. 356; Barclay v. Goodloe's Exr., 83 Ky. 
 493. " A trustee has no authority to appoint his successor unless such 
 authority is expressly conferred on him." Whitehead v. Whitehead, 
 (Ala. 1904), 37 So. Rep. 929. 
 
 555
 
 378 TRUSTS. [PART 11. 
 
 performance of the trust, if his place has not actually been 
 filled by the appointment of another; and, as a general rule, 
 the court will not make such an appointment until the trustee 
 has made a more formal disclaimer. 86 
 
 378. Survivorship. -If there are more than one trustee 
 they take and hold the legal estate in joint-tenancy. If, there- 
 fore, one of them dies, the estate vests in the survivors to the 
 exclusion of the heirs of the deceased trustee, and they are 
 generally competent to administer the trust. This rule is 
 without limitation when applied to executed trusts, but 
 whether an executory trust survives depends upon the amount 
 of personal confidence reposed in them all as one body. 87 If 
 the special powers in an executory trust are granted to the 
 trustees ratione officii, i. e., given in general terms to " my 
 trustees," the ordinary construction is that such trust powers 
 survive. 88 But if they are granted to them nominatim, indi- 
 cating a personal confidence in the discretion of each, there 
 will be no survivorship. 89 The same rule governs the right to 
 exercise trust powers by the new trustee appointed by the 
 court. Ordinary trust powers may be exercised by him, but 
 
 seTainter V. Clarke, 13 Mete. 220; Judson v. Gibbons, 5 Wend. 224; 
 Cloud v. Calhoun, 10 Rich. Eq. 358; Adams V. Adams, 21 Wall. 185; 
 Lyle v. Burke, 40 Mich. 499; King V. Donnelly, 5 Paige 46; Putnam's 
 Free School v. Fisher, 30 Me. 526; Jones I/. Moffett, 5 Serg. & R. 
 523. 
 
 87 Lane v. Debenham, 11 Hare, 188; Cole v. Wade, 16 Ves. 28; War- 
 burton V. Sands, 14 Sim. 622; Franklin V. Osgood, 14 Johns. 553; Peter 
 v. Beverly, 10 Pet. 564; Jackson v. Schauber, 7 Cow. 194; Saunders V. 
 Schmaelzle, 49 Cal. 59. In New York, if one of two or more trustees 
 resign, the others have not the power to execute the trust, in the same 
 manner as if he were dead. Another trustee must be appointed in his 
 place. Van Wick's Petition, 1 Barb. Cr. 570. 
 
 88 Peter v. Beverly, 10 Pet. 564; Jackson v. Given, 16 Johns. 167; 
 Tainter v. Clarke, 13 Mete. 220; Franklin v. Osgood, 14 Johns. 553; Co. 
 Lit. 113 a, note, 146; Story's Eq. Jur., Sec. 1062; Cole v. Wade, 16 
 Ves. 28; Wells v. Lewis, 4 Mete. (Ky.) 271, Lewin on Tr. 239. 
 
 89 See preceding note, and post, Sec. 410. 
 
 556
 
 CH. XIV.] TRUSTS. 380 
 
 those involving a personal confidence die with the removal 
 of the trustee, in whom the confidence was reposed. 90 
 
 379. Merger of interests. If the legal and equitable es- 
 tates of a trust become lawfully united in one person, the 
 equitable is merged in the legal estate, in accordance with the 
 general law of merger. But the conjunction of the two estates 
 in one person will not produce a merger, if it would be prej- 
 udicial to the rights of any one lawfully interested in the 
 trust property. As a general rule, it is necessary that the 
 equitable estate should be of equal extent with the legal estate, 
 so that a merger might take place. 91 
 
 380. Rights and powers of trustees. Their rights and 
 powers must necessarily vary materially with the character 
 and terms of the trust. So, also, do the rights and powers of 
 the cestui que trust. The authority of the former is greatest 
 and the powers of the latter are least in the case of executory 
 trusts, while the converse is true of passive trusts. The 
 powers, that either may have in active trusts, and which are 
 peculiar to such trusts, are wholly dependent upon the partic- 
 ular provisions of each trust, and no general rules can be 
 laid down in explanation of them. 92 It may be said of every 
 
 oCole v. Wade, 16 Ves. 44; Hibbard v. Lamb, Ambl. 309; 
 Atty.-Gen., 1 Eq. Cas. Abr. 195; Burrill t/. Shield, 2 Barb. 457; Lewin 
 on Tr. 239. 
 
 i 3 Prest. Conv., 1 Spence Eq. Jur. 508, 572 ; Nicholson v. Halsey, 
 7 Johns. Ch. 422; Rogers v. Rogers, 18 Hun 409; Gardner v. Gardner, 
 3 Johns. Ch. 53; Hopkinson v. Dumas, 42 N. H. 307; Bolles v. State 
 Trust Co., 27 N. J. Eq. 308; Cooper v. Cooper, 1 Halst. Ch. 9; James 
 v. Morey, 2 Cow. 284; Badgett v. Keating, 31 Ark. 400; Hunt v. Hunt, 
 14 Pick. 374; Selby v. Alston, 3 Ves. 339; Wade v. Paget, 1 Bev. Ch. 
 363 ; Butler v. Godley, 1 Dev. 94. " A merger of legal and equitable 
 estates takes place only when the trustee is the sole beneficiary." 
 Robb v. Washington and Jefferson College (N. Y. Sup. 1905), 93 N. Y. 
 S. 92. 
 
 2 See Morse v. Morrell, 82 Me. 80; In re Roe, 119 N. Y. 509; Kenady 
 c. Edwards, 130 U. S. 117; Harris V. Petty, 66 Tex. 514; Kintner v. 
 Jonea, 122 Ind. 148. 
 
 557
 
 380 TRUSTS. [PART n. 
 
 species of trusts that possessory actions, and actions for the 
 protection of the legal estate, must be brought by the trustee. 
 The ccstui que trust cannot maintain them. In a court of law 
 the trustee is deemed to be entitled to the possession of the 
 land, and may even oust the cestui que trust from possession. 
 The latter, if in possession, holds it merely as a tenant at 
 sufferance or at will. 98 Where there are two or more trus- 
 tees, all must join in any formal act under the trust, partic- 
 ularly if the exercise of discretion is required, as in the 
 case of a sale of the trust property. 94 In ordinary informal 
 proceedings, the act of one is deemed to be the act of all. 
 But they are not responsible for the unlawful acts of each 
 other unless they participate in the wrongful acts, or are 
 guilty of negligence in the discharge of their duties, and the 
 wrongful act could have been prevented by the exercise of 
 ordinary care. 95 Whenever the trustees violate the rights of 
 
 1 Cruise Dig. 414; 2 Pom. Eq. Jur., Sec. 991; Russell v. Lewis, 
 2 Pick. 508; Woodman v. Good, 6 Watts & S. 169; Newton v. Mc- 
 Lean, 41 Barb. 289; Trustees, etc., V. Stewart, 27 Barb. 553; Jackson 
 v. Van Slick, 8 Johns. 487; Beach v. Beach, 14 Vt. 28; Williams Ap- 
 peal, 83 Pa. St. 377. And as legal owner of the land, he is bound to 
 use all proper diligence in collecting rents and profits, and paying off 
 all taxes and other charges against the estate. Story's Eq. Jur., Sec. 
 1280. A fiduciary is bound to exercise the diligence of a prudent man 
 in preventing trust property in his charge from being sold for taxes. 
 Bourquin v. Bourquin (Ga. 1904), 47 S. E. Rep. 639. 
 
 94 If, however, the trust is a public one, the rule does not apply. In 
 public trusts, in the absence of any special rule or law, a majority of 
 the trustees are competent to act. Wilkinson v. Mann, 2 Tyrwh. 586; 
 Chambers v. Perry, 17 Ala. 726. 
 
 5 The trustee cannot leave the entire estate in the hands of his co- 
 trustees. And, if such a thing does occur it is in itself a clear neg- 
 lect of duty; if the co-trustee has been enabled to violate the trust, the 
 former will be responsible for the wrongful acts of the latter, whether 
 they be acts of commission or omission. Kip v. Deniston, 4 Johns. 
 23; Ward V. Lewis, 4 Pick. 518; Towne V. Ammidon, 20 Pick. 535; 
 Spencer v. Spencer, 11 Paige 299; Pirn. v. Downing, 11 Serg. & R. 66; 
 Jones' Appeal, 8 Watts & S. 143; State 0. Guilford, 15 Ohio 593; 
 Rayall's Admr. V. McKenzie, 25 Ala. 363; Edmonds v. Crenshaw, 14 
 Pet. 166; Irwin's Appeal, 35 Pa. St. 294; Graham v. Davidson, 2 Dev. 
 558
 
 CH. XIV.] TRUSTS. 381 
 
 the cestui que trust, or fail or refuse to perform their duty, 
 courts of equity are the proper courts to apply to for relief 
 and the decrees of those courts are paramount in all questions 
 relating to the powers and duties of the parties to a trust. 90 
 But third parties cannot avoid their contracts with trustees 
 on account of the want of power of the trustee, if they have 
 been ratified by the cestui que trust. 9 " 1 An injunction will lie 
 against a trustee for committing waste. 98 
 
 381. Rights and powers of cestuis que trust. Where it 
 is a passive trust, the rights of the cestui que trust are in 
 equity almost equivalent to legal ownership. The trustee has 
 the bare legal title, and may be compelled by chancery to do 
 
 & B. Eq. 155. But if he is "not the acting trustee, and merely joins in 
 nie execution of the trust in some particular matter for the sake of 
 _ormality, as where he signs a receipt for money paid to the co-trustee, 
 he will not be liable for a misappropriation by the co-trustee. Brice 
 v. Stokes, 11 Ves. 319; Ingle v. Partridge, 32 Beav. 661; Peter v. Bev- 
 erly, 10 Pet. 531; 1 How. 134; Taylor v. Benham, 5 How. 233; Sinclair 
 v. Jackson, 8 Cow. 543. See Ormiston V. Olcott, 84 N. Y. 339; Brice 
 V. Stokes, 2 Eq. Ld. Cas. 1748-1805. 
 
 oo Jones v. Dougherty, 10 Ga. 373; Tucker v. Palmer, 3 Brev. 47; 
 Bush v. Bush, 1 Strobh. Eq. 377; Den v. Troutma*!, 7 Ired. 155; James 
 V. Cowing, 82 N. Y. 449; Williams V. Dwindle, 51 Cal. 442. If the duty 
 of the trustee be purely discretionary, the court will not compel an 
 execution. Stanley V. Colt, 5 Wall. 168; see post, Sec. 418. Nor will 
 the court attempt to control the discretion of a trustee in any manner, 
 except to prevent an unreasonable exercise of it, which, on account of 
 the injury to the beneficiaries, could not have been intended by the 
 donor. Arnold v. Gilbert, 3 Sandf. Ch. 531; Zabriskie's Exrs. v. Wet- 
 more, 26 N. J. Eq. 18; Pulpress v. African Ch., 48 Pa. St. 204; Starr 
 r. Moulton, 97 111. 525; Vallette V. Bennett, 69 111. 632; Phelps V. 
 Harris, 51 Miss. 789; Rammelsberg V. Mitchell, 29 Ohio St. 22; In re 
 Strutt's Trusts, L. R. 16 Eq. 629; Evans v. Bear, L. R. 10 Ch. 76; lies 
 v. Martin, 69 Ind. 114. 
 
 OT Matheney v. Sandford, 26 W. Va. 336. " Where plaintiff sues as 
 trustee of an express trust concerning lands, defendant, a stranger to 
 the agreement relating to the trust, has no standing to contend that 
 it is void because not created in writing." Mallory v. Thomas (Kan. 
 1905), 81 Pac. Rep. 194. 
 
 s Moses v. Johnson, 88 Ala. 517. 
 
 559
 
 382 TRUSTS. [PART IL 
 
 whatever in respect to the legal title is necessary for the bene- 
 ficial enjoyment of the property by the cestui que trust. The 
 latter is entitled to the possession, can collect the rents and 
 profits and apply them to his use. But the cestui que trust 
 can only acquire possession against the will of the trustee by 
 means of a decree in equity. A court of law would sustain 
 an action of ejectment by the trustee. A court of equity will 
 grant the possession to the cestui que trust if consistent with 
 the trust, and for a further protection may enjoin the trustee 
 from proceeding at law in ejectment." Wherever the code 
 of procedure is in force, as a matter of course, these distinc- 
 tions as to the relative standing of the trustee and cestui que 
 trust, in courts of law and of equity, have been necessarily 
 abolished, and every one finds an appropriate remedy in the 
 same civil action, and in the same court. 
 
 382. Alienation of trust estate. It is also a well estab- 
 lished rule that the trustee of a dry or passive trust may be 
 compelled by decree in chancery to convey the estate as the 
 cestui que trust may direct. And this rule, it would seem, 
 applies to every species of trust where such a decree is not 
 inconsistent with the express terms of the trust. Equity will 
 give to the cestui que trust the full power to dispose of the 
 estate, whenever it can do so without violating the express 
 or implied purpose of the trust, and without doing injury to 
 any one interested therein. Where there is no prohibition 
 against alienation, the execution of the deed of conveyance by 
 
 Lewin on Tr. 23, 470, 480; Shankland's Appeal, 47 Pa. St. 113; 
 Harris v. McElroy, 45 Pa. St. 216; Stevenson v. Lesley, 70 N. Y. 512; 
 Heard v. Baird, 40 Miss. 800; Barkley v. Dosser, 15 Lea, 529. See 
 Watts v. Ball, 1 P. Wms. 108; Lewis v. Lewis, 1 Car. 102; Cholmon- 
 deley v. Clinton, 4 Bligh 115. But if there are other persons interested 
 in the estate the court may either refuse to decree the possession to the 
 cestui que trust, or impose such conditions and restrictions as may be 
 necessary for the protection of the other beneficiaries. Shankland's 
 Appeal, supra; Harris V. McElroy, supra; Battle V. Petway, supra; 
 Williamson v. Wilkins, supra; Barkley v. Dosser, supra. 
 560
 
 CH. XIV.] TRUSTS. 382 
 
 trustee and cestui que trust passes the absolute title, and the 
 trust is destroyed by the consequent merger of, interests. 1 To 
 what extent these general powers exist in an active trust must 
 depend upon the peculiar limitations of such trust. Wher- 
 ever the power of the trustee involves the exercise of a pro- 
 prietary authority over the property, equity will regard him 
 as the owner so far as it is necessary for the performance of 
 the trust. And to that extent will the rights and powers of 
 the cestui que trust be curtailed. 2 In New York, and other 
 States in which the New York statutes on the subject of trusts 
 
 1 1 Cruise Dig. 448 ; Lewin on Tr. 470 ; Vaux V. Parke, 7 W. & S. 
 19; Harris v. McElroy, 45 Pa. St. 216; Barnett's Appeal, 46 Pa. St. 
 399; Battle f. Petway, 5 Ired. 576. But see ante, Sec. 348, where it 
 is claimed that in the case of a passive trust to a married woman, the 
 conveyance of the equitable estate by her without the co-operation of 
 the trustee, will pass the legal title as well. 
 
 2 Lewin on Tr. 470; Barnett's Appeal, 46 Pa. St. 309; McCosker V. 
 Brady, 1 Barb. Ch. 329; 1 Spence Eq. Jur. 490, 497; Culbertson's Ap- 
 peal, 76 Pa. St. 145; Williams' Appeal, 83 Pa. St. 377; Smith r. Har- 
 rington, 4 Allen 566; Bowditch r. Andrew, 8 Allen 339; Douglas r. 
 Cruger, 80 N. Y. 15. But when the duties which have made the trust 
 active have been performed the trust again becomes passive, and if it 
 is not executed by the Statute of Uses, the court may direct a con- 
 veyance by the trustee in accordance with the desires of the cestui quo 
 trust. Welles V. Castles, 3 Gray 323; Sherman v. Dodge, 28 Vt. 26; 
 Waring V. Waring, 10 B. Mon. 331; Leonard's Lessee v. Diamond, 31 
 Md. 536; Perry on Tr., Sec. 351. " A trustee has power to mortgage real 
 estate, where he is given the power to ' take charge of, manage, and 
 control the same for the use and benefit of ' a person designated." Ely 
 r. Pike (111. App. 1904), 115 App. 284. "Where a trust provided 
 for a sale and re-investment of the trust estate, on agreement between 
 the trustee and the beneficiaries, the power of sale was a special per- 
 sonal trust which did not pass to a successor." Luquire t?. Lee (Ga. 
 1905), 49 S. E. Rep. 834. " Where a power to sell and convey real prop- 
 erty is conferred upon several executors or trustees, it continues to a 
 single survivor, and may be exercised by him alone after the death of 
 his co-trustee, unless the contrary intent is manifest from the instru- 
 ment creating the trust." Haggart V. Ranney (Ark. 1904), 84 S. W. 
 Rep. 703. Trustees, in making sales of the trust estate, must, with a 
 view of obtaining the best terms, act with the diligence a prudent 
 owner would observe in the sale of his own property. Callaway r. 
 Hubner (Md. 1904), 58 Atl. Rep. 362. 
 
 36 561
 
 384 TRUSTS. [PART 11. 
 
 have been substantially followed, the cestui que trust is now 
 possessed of no interest which he may assign, where the trustee 
 is charged with the collection and payment of the rents and 
 profits of the estate to the cestui que trust. 
 
 383. Liability of third persons for performance of the 
 trust. It has been held in England and in some of the Amer- 
 ican States, where a trustee has a power of sale, that the land 
 in the hands of purchasers is subjected to a constructive trust, 
 which compels the. purchasers to see to the proper application 
 of the purchase-money. This doctrine has been warmly con- 
 tested and denied in many of the States, and presumably the 
 rule is generally limited to such cases where the trust is special 
 and the sale is for a special purpose, as for the satisfaction of 
 a particular debt or claim. Where the trust is general it is 
 impossible for the purchaser to secure a proper application of 
 the purchase money, and he is not held liable for any mis- 
 appropriation by the trustee. 8 
 
 384. Compensation of trustee. Formerly the trustee was 
 not entitled to any compensation for his services, it being con- 
 sidered a matter of honor. The policy of the law in respect 
 thereto has since been changed, and it is now almost the uni- 
 versal rule that trustees receive a reasonable percentage 
 usually five per cent. upon all disbursements made by them. 
 But they are not permitted to make any further charge against 
 the trust estate, even though the services rendered may be un- 
 usual, and for the performance of which they have hired 
 others. 4 If the estate is held in trust for the life of the 
 
 s Story Eq. Jur., Sees. 1127, 1130; 1 Cruise Dig. 450; Potter v. Gard- 
 ner, 12 Wheat. 498; Duffy v. Calvert, 6 Gill 487; Dunch v. Kent, 1 
 Vern. 260; Spalding v. Shalmer, 1 Vern. 301; Andrews v. Sparhawk, 13 
 Pick. 393; Davis v. Christian, 15 Gratt. 11; Stall v. Cincinnati, 16 
 Ohio St. 169. 
 
 * Story Eq. Jur., Sec. 1266; 1 Cruise Dig. 451; Robinson v. Pett, 2 
 Eq. Ld. Cas. 512, 538-600 (4 Am. ed.) ; Meacham v. Sternes, 9 Paige 
 Ch. 398; In the matter of Schell, 53 N. Y. 9 Paige 263; Hall v. Hall, 
 562
 
 CH. XIV. J TRUSTS. 384 
 
 cestui que trust, and provides for a distribution of the prop- 
 erty at her death the cost of administration, including the 
 compensation of the trustee, should be charged up to the 
 account of the cestui que trust for life. 5 
 
 78 N. Y. 535; Warbass v. Armstrong, 2 Stockt. Ch. 263; Wagstaff v. 
 Lowerne, 23 Barb. 209. But see Constant v. Matteson, 22 111. 546; 
 Mayor v. Galluchat, 6 Rich. Eq. 1. 
 
 6 Cammann v. Cammann, 2 Demarest (N. Y.) 211. "Under Rev. 
 Laws (Mass.), Ch. 150, Sec. 14, providing that a trustee shall have 
 such compensation for his services as the court may allow, compensa- 
 tion is to be just and reasonable in each case considered by it; and a 
 trustee is not entitled to any certain commission for changing invest- 
 ments, or for any service without regard to other circumstances." 
 Parker t;. Hill (Mass. 1904), 69 N. E. Rep. 336.. " Assumpsit cannot 
 be maintained to recover compensation for trustees' services, such 
 services being within the exclusive jurisdiction of equity." Hazard V. 
 Coyle (R. I. 1904), 58 Atl. Rep. 987, 26 R. I. 361. "Where leases 
 executed by trustees contain a provision that the tenants are to pay 
 the taxes, the trustees are entitled to a commission of 5 per cent, on 
 the gross amount the tenants are required to pay." In re McCallum's 
 Estate (Pa. 1905), 60 Atl. Rep. 903, 211 Pa. 205. "Trustees of an 
 estate are entitled to receive commissions for the collection of accruing 
 interest payable to the estate." Kennedy v. Dickey (Md. 1904), 57 Atl. 
 Rep. 621; Dickey v. Kennedy, Id. 
 
 563
 
 CHAPTER XV. 
 
 EXECUTORY DEVISES. 
 
 SECTION 385. Nature and origin. 
 
 386. Executory devises, vested or eontingent. 
 
 387. Classes of executory devises. 
 
 388. Distinguished from devises in prcesenti. 
 
 389. Reversion of estate undisposed of. 
 
 390. Distinguished from uses. 
 
 391. Distinguished from remainders. 
 
 392. Same Limitation after a fee. 
 
 393. Same Limitation after an estate-tail. 
 
 394. Same Where first limitation lapses. 
 
 395. Same Limitations after an executory devise. 
 
 396. Indestructibility of executory devises. 
 
 397. Limitation upon failure of issue. 
 
 398. Same In deeds. 
 
 399. Doctrine of perpetuity. 
 
 400. Rule against accumulation of profits. 
 
 401. Executory devises of chattel interests. 
 
 385. Nature and origin. An executory devise is a future 
 interest or estate in lands limited in a will in such a manner 
 that it cannot take effect as a remainder or as a future use. 
 The law of executory devises has been evolved by a course of 
 judicial legislation based upon the Statute of Wills enacted 
 in the reign of Henry VIII. 1 The cardinal rule for the 
 construction of wills is that the intention of the testator must 
 be carried out, if at all possible. In conformity with this 
 liberal rub of construction, the common-law rules for the 
 limitation of future interests in real property were discarded, 
 and estates or interests were created and recognized under the 
 name of executory devises, which could not have been created 
 at common law by deed. Mr. Fearne defines an executory 
 
 i See post, Sec. 628. 
 564
 
 CH. XV.] EXECUTORY DEVISES. 385 
 
 devise to be "such a limitation of a future estate or interest 
 in lands as the law admits in the case of a will, though con- 
 trary to the rules of limitation in conveyances at common 
 law." 2 A remainder, the only common-law estate which could 
 be directly created by conveyance, has been denned to be a 
 future estate in lands which is preceded and supported by a 
 particular estate in possession, which takes effect in posses- 
 sion immediately upon the determination of the prior or 
 particular estate, and which is created at the same time and 
 by the same conveyance. 3 It follows, therefore, that every 
 devise of a future estate, which is not preceded by a particular 
 estate created by the same instrument, or which, if there is 
 such a prior limitation, takes effect in possession before or 
 after the natural expiration of the prior limitation, is an 
 executory devise.* An executory devise was once held to be 
 an interest somewhat different from an estate, although not 
 a mere naked possibility. 5 But whatever need there may 
 have been for such refined distinctions in the incipient stages 
 of the growth of those interests, none exists now, and for 
 all practical purposes executory devises' may be considered as 
 estates in land, having all the characteristics and appurte- 
 nances of a common-law estate, differing from the latter only in 
 the mode of creation and limitation. They are alienable and 
 devisable in equity, whether the devisees are vested with title 
 
 2 Fearne Cont. Rem. 386; 2 Washburn on Real Prop. 680; 2 Bla. Com. 
 172; 4 Kent's Com. 264; 2 Jar. on Wills (5 Am. ed) 483; McRee's 
 Admrs. v. Means, 34 Ala. 349. 
 
 3 See ante, Sec. 296. 
 
 Moore v. Parker, 1 Ld. Raym. 37; Doe v. Scarborough, 3 Ad. & El. 
 2, 897; Key v. Gamble, 2 Jones 123; Gore v. Gore, 2 P. Wms. 28; 
 Harris v. Barnes, 4 Burr. 2157; Doe f. Morgan, 3 T. R. 763; Bullock v. 
 Stone, 2 Ves. 521. 
 
 In Jones v. Roe, 3 T. R. 88, Chief Justice Willes says: "Execu- 
 tory devises are not naked possibilities, but are in the nature of con- 
 tingent remainders." See Wright t?. Wright, 1 Ves. Sr. 411; Ham- 
 mington v. Rudgard, 10 Rep. 52 b. See Shaw v. English, 81 N. Y. 8. 
 1(59; Platt v. Brannan, 81 Pac. Rep. 755 (Colo. 1905); In re Moran's 
 Will (Wis. 1903), 96 N. W. Rep. 367. 
 
 565
 
 387 EXECUTORY DEVISES. [PART II. 
 
 or it is contingent, and descendible to the devisee's heirs, if he 
 should die before the devise vests in possession. 6 
 
 386. Executory devises, vested or contingent. The devise 
 is vested where the person who is to take is in esse, and is 
 ascertained, and where the event upon which he is to take 
 is also certain. Such a devisee takes a vested, future estate. 
 Where the estate is to vest upon an uncertain event or in 
 a person not definitely ascertained, the executory devise is 
 contingent, and partakes of the nature of a contingent re- 
 mainder. 7 
 
 387. Classes of executory devises. Some of the writors 
 have indulged in a minute subdivision of executory devises, 
 but it tends apparently to obscure and mystify, rather than to 
 classify, the subject, and it will be disregarded, and the follow- 
 ing simple subdivision employed in its stead: First, where the 
 devise takes effect in the future without a sufficient preceding 
 limitation to support it; secondly, where the devise vests in 
 derogation of a preceding limitation, and thirdly, where the 
 devise is a future limitation in a chattel interest. 8 The third 
 
 ePurefoy v. Rogers, 2 Wm. Saund. 388; Wright v. Wright, 1 "Ves. 
 Sr. 409; Jonea v. Roe, 3 T. R. 88; Proprietors Brattle Sq. Church v. 
 Grant, 3 Gray 161; Edwards V. Varick, 5 Denio 664; Stover v. Eycle- 
 shimer, 46 Barb. 87; Den v. Manners, 1 Spence 142; Kean v. Hoffeckcr, 
 2 Harr. 103; Hall v. Robinson, 3 Jones Eq. 348. Mr. Washburn states 
 that executory devises are alienable only when the devisee is an ascer- 
 tained person (2 Washburn on Real Prop. 681), and this seems to be the 
 generally accepted doctrine. But, as has been stated in respect to the 
 alienability of contingent remainders (see ante, Sec. 307, note), since 
 the conveyance of a future contingent interest only operates in equity 
 by way of estoppel, if a grant of the executory devise is made by one 
 who, although not yet ascertained to be the devisee, becomes the devisee 
 subsequently, by the happening of the contingency by which the devisee 
 is to be ascertained, his grant would, by estoppel, convey to his grantee 
 the interest which he thus subsequently acquires. See post, Sees. 511, 
 514, incl. 
 
 T Shaw v. English, 81 N. Y. S. 169. 
 
 8 This is the subdivision employed by Mr. Fearne, Mr. Cruise, and 
 566
 
 CH. XV.] EXECUTORY DEVISES. 388 
 
 class will be considered in a subsequent paragraph. The first 
 class would not only include those cases where the future limi- 
 tation is not preceded by any particular limitation, but also 
 those where the preceding limitation is not sufficient to support 
 the future estate as a remainder. Where the executory devise 
 is vested, the preceding limitation may be insufficient, by ter- 
 minating naturally before the former is to take effect. And 
 where the devise is contingent, the preceding limitation would 
 be insufficient, not only for the cause just mentioned, but also 
 when it is not a freehold estate. In any one of these cases 
 the future limitations, whether vested or contingent, will take 
 effect as executory devises. 9 The second class includes all 
 future estate, which by vesting, defeat or curtail a prior 
 limitation. 10 This class is also called conditional limitations, 
 and corresponds to shifting uses, while the first class is similar 
 to springing uses, but containing other cases, which, as uses, 
 would be void contingent uses, viz. : where the preceding limita- 
 tion is not sufficient to support the future estate. 11 
 
 388. Distinguished from devises in preesenti. Ordinary 
 devises vest at the death of the testator, and if for any cause 
 
 Mr. Washburn. Fearne Cont. Rem. 339; G Cruise Dig. 366; 2 Washburn 
 on Real Prop. 683. See Scatterwood v. Edge, 1 Salk. 229; Nightingale 
 v. Burrell, 15 Pick. 104. 
 
 92 Washburn on Real Prop. 684; Fearne Cont. Rem. 400; 2 Bla. Com. 
 173; Leslie v. Marshall, 31 Barb. 566; Chambers v. Wilson, 2 Watta 
 495; Reding v. Stone, 8 Vin. Abr. 215, pi. 5; Key v. Gamble, 2 Jones 
 123; Doe v. Scarborough, 3 Ad. & El. 2, 897; Whiting v. Whiting, 42 
 Minn. 548; Tilden v. Green, 54 Hun 231; Clough v. Clough, 64 N. H. 
 509. 
 
 ioLoe v. Fonnereau, 1 Dougl. 487; Marks v. Marks, 10 Mod. 423; 
 Stanley v. Stanley, 16 Ves. 491; Doe 0. Beauclerk, 11 East 657; Pro- 
 prietors Brattle Sq. Church v. Grant, 3 Gray 146 ; Brightman v. Bright- 
 man, 100 Mass. 238; Jackson v. Blanshau, 3 Johns. 299; Hatfield v. 
 Sneden, 42 Barb. 615; . c. 54 N. Y. 285; Hilliary v. Hilliary's Lessee, 
 26 Md. 274; Gaven v. Allen, 100 Mo. 293; Suydam v. Thayer, 94 Mo. 
 49. 
 
 "See ante, Sees. 354, 356, 359; May v. Lewis (N. C. 1903), 43 8. 
 E. Rep. 560. 
 
 567
 
 388 EXECUTORY DEVISES. fpART II. 
 
 the devisee is unable to take at that time, the devise lapses. 
 Its vesting will not be suspended, nor will it be kept alive as 
 an executory devise, until the devisee is able to take. Where, 
 therefore, the devise is, in express words or by necessary impli- 
 cation, to vest immediately upon the death of the testator, it 
 cannot under any circumstances be construed to be a future or 
 executory devise, in order to carry out the supposed intention 
 of the testator that the devise shall at all events take effect. A 
 devise to children without words of qualification would be a 
 devise in prcesenti, and so, also, it has been held that, a devise 
 to the heirs of A., standing alone, would be considered a devise 
 in prcesenti, and if A, should be living at the testator's death, 
 the devise would lapse for the want of some ascertained person 
 in being. In order to make such a devise executory, it must 
 expressly or by implication refer to the death of A., as the 
 time when the devise is to take effect. 12 But this decision 
 would probably be different now; for at present the courts will 
 avail themselves of very slight circumstances in order to reach 
 the conclusion that a devise, which otherwise would fail, was 
 intended to be an executory devise. 13 But where there are 
 
 12 2 Washburn on Real Prop. 685 ; 6 Cruise Dig. 422 ; Doe V. Carleton, 
 1 Wils. 225; Goo'dright 0. Cornish, 1 Salk. 226; Porter's Case, 1 Rep. 24; 
 Ingliss v. Trustees, etc., 3 Pet. 99; Leslie 0. Marshall, 31 Barb. 565. 
 See post, Sees. 638, 641. 
 
 isGoodright V. Cornish, 1 Salk. 226; Harris v. Barnes, 4 Burr. 2157; 
 Yeaton V. Roberts, 28 N. H. 465 ; Holderby v. Walker, 3 Jones Eq. 46 ; 
 Thompson V. Hoop, 6 Ohio St. 480; Darcus V. Crump, 6 B. Mon. 365. 
 Thus, if there is a devise to the children of A. to be begotten, although 
 the devise would, without the words in italics, have been construed as a 
 devise in prcesenti, and would have been confined to the children born 
 at the testator's death, the presence of the words to be begotten, or 
 other words of similar import, would be sufficient evidence of the inten- 
 tion of the testator to include all the children of A., whether they are 
 born before or after his death, and the devise would, therefore be exec- 
 utory. Mogg V. Mogg, 1 Meriv. 654; Newill v. Newill. L. R. 12 Eq. 
 432; Eldowes 0. Eldowes, 30 Beav. 603; Annable v. Patch, 3 Pick. 360; 
 Hoge r. Hoge, 1 Serg. & R. 144; Rupp v. Eberly, 79 Pa. St. 141 ; Napier 
 V. Howard, 3 Ga. 202; Dunn v. Bk. of Mobile, 2 Ala. 152. And where 
 there are no persons in esse, who would come under the class of devi- 
 568
 
 CH. XV.] EXECUTORY DEVISES. 389 
 
 persons in being who have the capacity to take the devise, it 
 will be considered that it will be a devise in prcesenti, and not 
 an executory devise, if this construction is not rendered im- 
 possible by the other provisions of the will. 14 And this rule 
 has been followed even in the case of an alternate devise which 
 is to take effect upon "the death of the first devisee without 
 children or issue. The presumption would be that the contin- 
 gency referred to the death of the first devisee during the 
 life of the testator. 15 
 
 389. Reversion of estate undisposed of. Where there is 
 no limitation preceding the executory devise, the estate 
 descends to the testator's heirs and remains in them until the 
 event happens, when the devise is to take effect. And if the 
 executory devise is an estate less than a fee simple, the land 
 will revert to the heirs upon its termination. 18 If the preced- 
 
 sees named at the time of the testator's death, nor had there been any 
 before his death, it seems to be the presumption of law that the testa- 
 tor intended to create an executory devise. Shepherd V. Ingram, Amb. 
 448; Weld V. Bradbury, 2 Vern. 705; Doe V. Carleton, 1 Wils. 225; 
 Haughton v. Harrison, 2 Atk. 329; Ross v. Adams, 28 N. J. L. 160. 
 And where there is a devise to children, or some other definite class of 
 persons, and some of them are born and others are unborn at the death 
 of the testator, or where none are born then, but some come into being 
 afterwards, leaving others which are subsequently born, those who are 
 in being take vested estates, and are entitled to the whole income until 
 the others are born, when the devise opens and lets them in. These 
 executory devises have a close resemblance to remainders to fc class. 
 Shepherd V. Ingram, Amp. 448; Mainwaring v. Beevor, 8 Hare 44; 
 Shawe v. Cunliffe, 4 B. C. 144; Mills v. Norris, 5 Ves. 335; Stone v. 
 Harrison, 2 Call. 715. See ante, Sec. 360. 
 
 "Webster v. Welton, 63 Conn. 183; Kouvalinka v. Geibel, 40 N. J. 
 Eq. 443; Toner v. Collins, 67 Iowa 369; a. o. 56 Am. Rep. 346; Scott 
 r. West, 63 Wis. 529. 
 
 "Carroll v. Conley (N. Y.), 9 N. Y. S. 865; Jones v. Webb, 5 Del. 
 Ch. 132; Burdge v. Walling (N. J.), 16 Atl. Rep. 51. 
 
 i2 Washburn on Real Prop. 686, 687; 2 Preat. Abst. 120; 4 Kent's 
 Com. 268. See Boggs v. Bogga (N. J. Ch. 1905), 60 Atl. Rep. 1114; 
 May v. Lewis (N. C. 1903), 43 S. E. Rep. 550; Reynolds v. Reynolds 
 (S. C. 1903), 43 8. E. Rep. 878. 
 
 569
 
 389 EXECUTORY DEVISES. [PART II. 
 
 ing limitation is not sufficient to support the future limitation 
 as a contingent remainder, and the former expires before the 
 latter vests, there will be an intermediate reversion of the 
 estate to the heirs. The same general principles would apply 
 to executory devises of the second class. The only difficulty 
 experienced in applying them is when the vesting and enjoy- 
 ment of the executory devise do not absolutely require the 
 destruction of the entire preceding estate, as where the former 
 is a particular estate and the latter is a fee. Thus, where the 
 land is devised to A. and his heirs, and, upon the happening of 
 some contingency to B. for life, it is a mooted question both 
 sides being sustained by eminent authority whether the estate 
 in A. would be destroyed altogether by the vesting of B.'s 
 estate for life, or whether A. is only divested of his estate dur- 
 ing the continuance of B. 's estate, and retains the reversion in 
 him and his heirs. Mr. Fearne supports the former view, 
 while the latter is maintained by Mr. Preston, Mr. Powell, and 
 Mr. Washburn. 17 The intention of the testator certainly must 
 govern in such a case. If a fee simple be devised to one, there 
 is a manifest intention on the part of the testator to deprive 
 his own heirs of any interest in the land. If he attaches 
 thereto an executory devise to B. for life, in the absence of 
 any express evidence to the contrary, it only so far negatives 
 the presumed intention that A. should have the fee as is 
 required to give to B. an estate for his life. Upon the vesting 
 of B. 's estate the present estate in A. would be only suspended 
 until B's death, when the estate will revert to him and his 
 heirs. 18 
 
 "2 Washburn on Real Prop. 686; Fearne Cont. Rem. 251; 2 Prest. 
 Abst. 140; 2 Pow. Dev. 241. Mr. Washburn states that a case, involv- 
 ing this question, is said to have arisen in the Delaware courts, p. 687. 
 See to the same effect, Thomas v. Thomas (N. J.), 18 Atl. Rep. 355. 
 
 is Mr. Powell says: "To this important rule, namely, that an estate 
 subject to an executory devise, to arise on a given event, is, on the 
 happening of that event, defeated only to the extent of the executory 
 interest, the only possible objection that can be advanced is the total 
 absence of direct authority for it, for the books do not furnish a 
 570
 
 CH. XV.] EXECUTORY DEVISES. 391 
 
 390. Distinguished from uses. Uses may be created by 
 devise as well as by deed, and a future limitation in a will will 
 not be construed as an executory devise if it is limited as a 
 use, especially if there is a seisin raised by the will to sup- 
 port the use. Thus, where the devise is to A. to the use of 
 B., the Statute of Uses would be required to operate upon 
 the devise and transfer the legal estate from A. to B. 19 But 
 the mere expression "to the use of" appearing in a devise 
 will not necessarily convert the devise into a use, and it is 
 held that a simple devise to the use of A. will take effect 
 as an executory devise. 20 
 
 391. Distinguished from remainders. Whenever a future 
 limitation in a devise can take effect as a remainder, it will 
 be construed as such. It cannot operate as an executory 
 devise. This rule of construction arises from the desire of 
 the courts to confine themselves to common-law estates and 
 the rules governing them; and the doctrine of executory 
 devises is recognized and applied only when the intention of 
 the testator cannot otherwise be effectuated. 21 "What are the 
 
 " single example of its application." 2 Pow. Dev. 241. " A limitation in a 
 will providing that, if the devisee should die without heirs, the land 
 should ' revert back to his next of kin,' is a valid executory devise." 
 May v. Lewis (N. C. 1903), 43 S. E. Rep. 550. 
 
 i Co. Lit. 271 b, note 231, Sec. 3; Sandf. on Uses 243; 2 Washburn on 
 Real Prop. 433, 434. Whether the use will be executed by the statute, 
 or remain a trust, leaving the legal title in the devisee as trustee, is 
 governed by the same rules which apply to uses created by act inter 
 vivos. See Doe v. Field, 2 B. & Ad. 564; Doe v. Homfray, 6 A. & E. 
 206; Norton v. Leonard, 12 Pick. 152; Ayer f?. Ayer, 16 Pick. 327; 
 Upham v. Varney, 15 N. H. 467; Wood v. Wood, 5 Paige Ch. 596. 
 
 *o 1 Sugden on Pow. 2, 3. See Shaw v. English (N. Y. 1903), 81 N. 
 Y. 8. 169. 
 
 ziPurefoy v. Rogers, 2 Wm. Saund. 388; Doe v. Morgan, 3 T. R, 
 763; Doe v. Fonnereau, Dougl. 487; Doe v. Considine, 6 Wall. 475; 
 Nightingale v. Burrell, 15 Pick. 104; Terry v. Briggs, 12 Mete. 17; 
 Hall v. Priest, 6 Gray 18; Manderson v. Lukens, 23 Pa. St. 31. In 
 Purefoy v. Rogers, the rule was stated thus . " Where a contingency is 
 limited to depend upon an estate of freehold, which is capable of sup- 
 
 571
 
 392 EXECUTORY DEVISES. [PART II. 
 
 requisites and characteristics of remainders have been already 
 discussed, and it will be necessary to mention here only certain 
 important cases in which doubt may arise. In respect to the 
 first class of executory devises where there is no sufficient 
 particular estate, or none at all, no question can arise as to 
 the proper construction. The difficulty is presented in the 
 second class, in determining whether the second limitation 
 takes effect in derogation of the prior estate. In New York, 
 Michigan, Wisconsin, Minnesota, California and Dakota, it 
 is provided by statute that no contingent remainder is de- 
 feated by the termination of the preceding estate before the 
 happening of the contingency; but that it will take effect 
 thereafter, whenever the contingency happens. This is a prac- 
 tical abrogation of all distinction between contingent remain- 
 ders and executory devises. So, also, in Alabama, all con- 
 tingent remainders are abolished, and all estates in expectancy 
 declared to have the effect of executory devises. 
 
 392. Same Limitation after a fee. It has been seen 
 that a remainder cannot be limited after a fee. 22 And where 
 the preceding estate is in fact a fee, whether it is vested or 
 contingent, a subsequent limitation, which is made to defeat 
 the preceding estate after it has vested, is an executory devise 
 and not a remainder. But the fact that there is a preceding 
 limitation of the fee will not necessarily make the subsequent 
 limitation an executory devise. If the subsequent limitation 
 defeats and takes the place of the preceding limitation upon 
 the breach of a condition, subsequent to the vesting of the 
 first estate, the second limitation is an executory devise. 23 But 
 
 porting a remainder, it shall never be construed to be an executory 
 devise, but a contingent remainder only." Goodright v. Cornish, 4 
 Mod. 258; Reeve V. Long, Garth. 310; Doe v. Scarborough, 3 Ad. & El. 
 2, 897; Gore v. Gore, 2 P. Wms. 28; Harris v. Barnes, 4 Burr. 2157. 
 
 22 See ante, Sees. 296, 298, 313. See Simmons v. Cabanne (Mo. 1903), 
 76 S. W. Rep. 618. 
 
 23 Gulliver v. Wicketts, 1 Wils. .105; Fonnereau v. Fonnercau, 3 Atk. 
 315; Nightingale v. Burrell, 15 Pick. 104; Doe V. Beauclcrk, 11 East 
 
 572
 
 CH. XV.] EXECUTORY DEVISES. 393 
 
 if the subsequent limitation is merely an alternate devise 
 which depends upon a condition precedent to the first, and 
 which must vest, if at all, before the first, then it is a contin- 
 gent remainder and not an executory devise. It is an alter- 
 nate remainder, or a remainder with a double aspect. 24 
 
 393. Same Limitation after an estate tail. A remain- 
 der can be limited after an estate tail, which is to take effect 
 upon the failure of issue. 25 But it is often difficult in a 
 devise to one and his heirs, and a limitation over in case of a 
 failure of issue, to discover whether it was the intention of 
 the testator to give to the first taker an estate tail, or only 
 that his estate of inheritance should cease when there should 
 be a failure of issue, the failure of issue being the contingency, 
 when the limitation over should take effect. If it was his 
 intention to create an estate tail, the limitation over is a 
 remainder; 26 but if such an intention cannot be gathered 
 
 657; Doe v. Heneage, 4 T. R. 13; Nicholl v. Nicholl, 2 W. Bl. 1159; 
 Barney v. Arnold, 15 R. I. 78; Shadden v. Hembree (Ore.), 18 Pac. 
 Rep. 572. " Where testator devises his lands to his daughter in fee 
 simple, a subsequent clause in the will by which he attempts to devise 
 over to others so much of the land as his daughter had not alienated, 
 if she dies without issue, is void." Spencer v. Scovil (Neb. 1903), 96 
 N. W. Rep. 1016. See Cox v. Anderson's Admr. (Ky. 1902), 70 S. W. 
 Rep. 839. 
 
 2* Luddington t/. Kime, 1 Ld. Raym. 203 ; Goodwright v. Dunham, 1 
 Dougl. 265; Taylor V. Taylor, 63 Pa. St. 481, 3 Am. Rep. 565; Wilson 
 r. \\ hite, 109 N. Y. 59. See ante, Sec. 310. 
 
 252 Washburn on Real Prop. 690; Wiscot's Case 2 Rep. 61; Roe v. 
 Baldwere, 5 T. R. 110; Page V. Hayward, 2 Salk. 570; Wilkes V. Lion, 
 2 Cow. 392; Hall v. Priest, 6 Gray 18; Poole v. Morris, 26 Ga. 374. 
 See ante, Sec. 298. 
 
 26 Parker V. Parker, 5 Mete. 134; Nightingale v. Burrill, 15 Pick. 
 104; Allen v. Trustees, 102 Mass. 263; Hannau V. Osborn, 4 Paige Ch. 
 336; Morehouse V, Cotheal, 21 N. J. L. 480; Taylor V. Taylor, 63 Pa. 
 St. 481, 3 Am. Rep. 565; Hill v. Hill, 74 Pa. St. 173, 15 Am. Rep. 545; 
 Richardson v. Richardson, 80 Me. 585; East V. Garrett, 84 Va. 523; 
 Summers V. Smith, 127 111. 645; Reinsehl v. Shirk, 119 Pa. St. 108; 
 Titsell v. Cochran (Pa.), 10 Atl. Rep. 9; Knoderer r. Merriman (Pa.), 
 7 Atl. Rep. 152. And at common law the limitation over upon failure 
 
 f>7:}
 
 394 EXECUTORY DEVISES. [PART II. 
 
 from the language used, the limitation over will be held to be 
 an executory devise. 27 
 
 394. Same Where first limitation lapses. The will goes 
 into effect at the testator's death, and is construed according 
 to the circumstances surrounding the testator at that time. 
 No change of circumstances can affect the will which occurs 
 
 of issue is always presumed to be a remainder after an estate tail, 
 ( unless there is something in the context to the contrary, in conformity 
 with the general rule requiring a future limitation to be construed as a 
 remainder, if it can take effect as such. Hawley v. Northampton, 8 
 Mass. 3; Parker v. Parker, 5 Mete. 134; Vedder v. Evartson, 3 Paige 
 281; Wolfe v. Van Nostrand, 2 N. Y. 436; Stehman v. Stehman, 1 
 Watts 466; Wall v. Maguire, 21 Pa. St. 248; Manderson v. Lukens, 
 23 Pa. St. 31. But it must be remembered that estates tail have now 
 been abolished in very many of the States; in some they are converted 
 into fees simple, while in others the first taker has an estate for life, 
 and the rest of the estate constitutes a contingent remainder in fee in 
 the first taker's issue and their descendants. See ante, Sec. 296. In 
 both classes of States the doctrine that a remainder can be limited after 
 a fee tail has become obsolete and impossible through the inability to 
 create an estate tail. If there is, in one of these States, a devise to A. 
 and the heirs of his body, with a limitation over upon failure of issue, 
 the limitation over can only take effect as an executory devise, and 
 will be a good or a void limitation, according as the testator is con- 
 strued to intend a definite or indefinite failure of issue. See post, Sec. 
 397. 
 
 27 Jackson V. Chew, 12 Wheat. 153 ; Jackson f. Elmendorf , 3 Wend. 
 222; Jackson v. Thompson, 6 Cow. 178; Jackson v. Staats, 11 Johns. 
 337; Lyon t;. Burtiss, 20 Johns. 483; Nicholson V. Bettle, 57 Pa. St. 
 384; Morris v. Potter, 10 R. I. 58; Wilson v. Wilson (N. J.), 19 Atl. 
 Rep. 132; Gordon v. Gordon (S. C.), 11 S. E. Rep. 334; Pate v. French, 
 122 Ind. 10; Fields v. Whitfield (N. C.), 7 S. E. 780; In re Swinburne 
 (R. I.), 14 Atl. Rep. 850; Martin v. Renaker (Ky.), 9 S. W. Rep. 419; 
 Buchanan v. Buchanan, 99 N. C. 308; Galloway v. Carter, 100 N. C. 
 Ill; Henley v. Robb, Pickle (Tenn.) 474; Williams v. Lewis, 100 N. C. 
 142; Matthews V. Hudson (Ga.), 7 S. E. Rep. 286; Henderson v. 
 Kinard (S. C.), 6 S. E. Rep. 853; Stokes v. Van Wick, 83 Va. 724; 
 O'Brien v. O'Leary, 64 N. C. 332; Johnson's Exr. v. Citizens' Bank, 83 
 Va. 65; Goddard v. Whitney, 140 Mass. 92; Trexler v. Holler, 107 N. 
 C. 617; Prosser v. Hardesty, 101 Mo. 593. Generally the construction 
 depends upon the express words of the testator used in limiting the 
 estate. But if they leave the character of the limitation doubtful, then 
 resort must be had to the context; and if it appears from the context 
 that it was the intention of the testator to create an executory devise, 
 
 574
 
 CH. XV.] EXECUTORY DEVISES. 394 
 
 afterwards. If, therefore, there be a sufficient particular 
 estate to support the future contingent limitation at the 
 death of the testator, it will take effect as a contingent re- 
 mainder, and any subsequent lapse of the particular estate, 
 before the future estate vested, would defeat such contingent 
 estate. Once a remainder, always a remainder. But if the 
 particular estate is void or lapses because of a change of cir- 
 cumstances, occurring between the execution of the will and 
 the testator's death, the devise will be construed as if there 
 had been no preceding limitation, and the contingent limita- 
 tion will be supported as an executory devise. 28 But the testa- 
 tor may expressly provide that the remainder is to take effect 
 only when the particular estate vests, as where it is provided 
 that the estate shall go to a certain person at the death of. the 
 devisee for life. In the event that such devisee did not sur- 
 
 it will be held to be one, notwithstanding the ordinary presumption 
 that such a limitation is a remainder. The presumption prevails only 
 when it is absolutely impossible to ascertain the intention of the tes- 
 tator. Person v. Dodge, 23 Pick. 287; Armstrong v. Kent, 21 N. J. L. 
 509 ; Kennedy v. Kennedy, 29 N. J. L. 185 ; Berg v. Anderson, 72 Pa. St. 
 87; Hill V. Hill, 74 Pa. St. 173, 15 Am. Rep. 545; Summers V. Smith, 
 127 111. 645; Devecmon v. Shaw, 70 Md. 219; Chaplin v. Doty (Vt.), 15 
 Atl. Rep. 362. So, also, where a statute makes all limitations over upon 
 failure of issue, refer to a definite failure of issue, the limitation will 
 be construed ordinarily to be an executory devise. Pinkham v. Blair, 
 57 N. H. 226; Macombe . Miller, 26 Wend. 229; Wilson V. Wilson, 32 
 Barb. 328; McKee v. Means, 34 Ala. 349; Black v. Williams, 51 Hun 
 280; In re N. Y., L. & W. Ry., 105 N. Y. 91. See post, Sec. 397, for a 
 discussion of the question, when a " failure of issue " will be con- 
 strued to mean a definite failure of issue, and what would be the effect 
 upon the executory devise of the construction that it means an indefinite 
 failure of issue. 
 
 282 Washburn on Real Prop. 691; 6 Cruise Dig. 422; Fearne Cont. 
 Rem. 625, 626; Bullock V. Bennett, 31 Eng. L. & Eq. 463; Crozier V. 
 Bray, 39 Hun 121; Sauter V. Muller, 4 Dem. 389. So, also, if the prior 
 devise should fail by a refusal of the devisee to accept it, the future limi- 
 tation, which would otherwise be a contingent remainder, will take effect 
 as an executory devise. Yeaton v. Roberts, 28 N. H. 459; Thompson t?. 
 Hoop, 6 Ohio St. 480; Reynolds v. Reynolds (S. C. 1903), 43 S. E. Rep. 
 878; May v. Lewis (N. C. 1903), 43 S. E. Rep. 550. 
 
 575
 
 396 EXECUTORY DEVISES. [PART II. 
 
 vive the testator, the remainder could not, on the lapse of the 
 first devise, take effect as an executory devise. 29 
 
 395. Same Limitations after an executory devise. If 
 there are successive limitations which take effect after an 
 executory devise, they are all executory devises until the first 
 limitation takes effect in possession. But upon the happening 
 of that event they will become and be construed as remainders, 
 if they are capable of sustaining that relation to the preced- 
 ing limitation. Such would be the case, if the devise was to 
 
 A. for life, six months after the testator's death, remainder to 
 
 B. in fee. iDuring the six months, both limitations would have 
 the character of executory devises in respect to the rights of 
 the testator's heirs, but B. 's estate would be a remainder in 
 respect to A. 30 And in limitations of this character the first 
 executory devise may be contingent, while the second is certain 
 and vested. Until the first is vested the second is vested, 
 subject to be opened and to let in the first, when it vests. 31 
 And if the first limitation lapses, the second takes effect in 
 possession as an executory devise, as if there had been no pre- 
 ceding limitations. 32 
 
 396. Indestructibility of executory devises. Since execu- 
 tory devises are not dependent for support upon any preced- 
 ing estate, they cannot be altered or defeated by any act of 
 the first taker, unless such act is made by the terms of the 
 will the occasion of defeating the devise. Feoffment by the 
 first taker will not otherwise destroy the executory devise, as 
 it would a contingent remainder. 33 In England an exception 
 
 2 Gibson V. Seymour, 102 Ind. 485 ; s. c. 52 Am. Rep. 688. 
 
 so 2* Washburn on Real Prop. 691, 692; 2 Prest. Abst. 173; Purefoy v. 
 Rogers, 2 Wm. Saund. 388, note; Fearne Cont. Rem. 503; Pay's Case, 
 Cro. Eliz. 878. 
 
 si 2 Washburn on Real Prop. 693; Fearne Cont. Rem. 506. 
 
 32 See ante, Sec. 394. See, In re Lewis, 73 Law, J., Ch. 748 (1904), 
 2 Ch. 656, 91 Law., J., 242. 
 
 832 Washburn 698, 699; 2 Bla. Com. 173; Fearne Cont. Rem. 418; 
 576
 
 CH. XV.] EXECUTORY DEVISES. 397 
 
 seems to have been made in the case of an executory devise 
 taking effect in derogation of an estate tail, where a recovery 
 suffered by the tenant in tail would also defeat the devise. 3 * 
 As recoveries do not obtain in this country this exception is 
 of no importance to an American lawyer. 
 
 397. Limitation upon failure of issue. In determining 
 whether a future limitation vesting upon a failure of issue is 
 a remainder or an executory devise, two points are to be con- 
 sidered. The first is whether the failure relates to the issue 
 of the first taker, or to that of a stranger. In the first instance 
 the second limitation, in the absence of an express contrary 
 intention, will so limit the prior devise as to convert it into an 
 estate tail, thereby making the second limitation a remainder 
 after an estate tail. If it be the issue of a stranger it will 
 not reduce the prior devise to an estate tail, and hence the 
 second limitation can only take effect as an executory devise. 35 
 The second point is whether the failure means an indefinite 
 failure of issue, i. e., that the second limitation is to take effect 
 at any future time, when there shall be a failure of heirs in 
 the direct line of descent from the first taker, or whether it 
 refers to a failure of issue within any particular period, as at 
 the death of the first taker. The common-law rule was, and it 
 still obtains in the absence of statutory changes, that where 
 failure of issue was made the contingency upon which the 
 second limitation was to vest, without any express reference 
 to the kind of issue meant, or where the kind of issue could 
 not be determined by a reference to the context, it was an 
 
 Props. Brattle Sq. Church v. Grant, 3 Gray 146; McRee's Admrs. v. 
 Means, 34 Ala. 349. 
 
 s* 2 Washburn on Real Prop. 699 ; 2 Prest. Abst. 120 ; Fearne Cont. 
 Rem. 423, 424. See ante, Sees. 42, 298. 
 
 85 Grumble v. Jones, 11 Mod. 207; Badger v. Lloyd, 1 Ld. Raym. 526; 
 *. c. 1 Salk. 233; Atty.-Gen. v. Gill, 2 P. Wms. 369; Terry v. Briggs, 12 
 Mete. 22. But see ante, Sec. 393, notes. See Teit v. Richard (N. J. 
 Ch. 1902), 53 Atl. Rep. 824; May v. Lewis (S. C. 1903), 43 S. E. Rep. 
 550. 
 
 37 577
 
 397 EXECUTORY DEVISES. [PART II. 
 
 indefinite failure of issue, 30 which, as will be shown in a sub- 
 sequent paragraph, would make the second limitation good, if 
 it could take effect as a remainder after an estate tail, as 
 above explained, 37 and void, if it could only take effect as 
 an executory devise. 38 The tendency in this country at the 
 present time is to change this rule of construction, by statute 
 or by judicial legislation, wherever possible, so that a failure 
 of issue would mean a failure upon death of the first taker. 39 
 
 36 Cole V. Goble, 13 C. B. 445; Pleydell v. Pleydell, 1 P. Wms. 748; 
 Williamson V. Daniel, 12 Wheat. 568; Brattleboro' v. Mead, 43 Vt. 556; 
 Nightingale V. Burrill, 15 Pick. 104; Jackson v. Billinger, 18 Johns. 
 368 ; Miller V. Macomb, 26 Wend. 229 ; Moore V. Rake, 26 N. J. L. 574 ; 
 Kleppner V. Laverty, 70 Pa. St. 70; Ingersoll's Appeal, 86 Pa. St. 240; 
 Voris v. Sloan, 68 111. 588; Pennington V. Pennington, 70 Md. 418; 
 Hackney V. Tracy, 137 Pa. St. 53. A more liberal rule prevailed in re- 
 spect to personal property and chattel interests in real property, and 
 very slight evidence was sufficient to make the " failure of issue " mean 
 a definite failure. Allender V. Sussan, 33 Md. 11, 3 Am. Rep. 171; 
 Morehouse v. Cotheal, 22 N. J. L. 430. In Brummet V. Barber, 2 Hill 
 (S. C. ) 543, Judge O'Neall says: "Although there is no such positive 
 and substantial legal distinction, yet there is no doubt that the court 
 is not so strictly bound down to an artificial rule of construction in per- 
 sonal as in real estate, and that in the former they will lay hold of 
 words to tie up the generality of the expression ' dying without issue ' 
 and confine it to dying without issue, living at the time of the first 
 taker's death, which would not have that effect in the latter." But 
 before declaring the term " failure of issue," or " dying without issue," 
 to mean an indefinite failure of issue, the whole will must be scanned, 
 in order to discover the intention of the testator. The common law, 
 however, required clear proof of a contrary intention to overcome the or- 
 dinary presumption of law in favor of its being an indefinite failure of 
 issue. See cases cited supra. In Chism V. Williams, 29 Mo. 288, Judge 
 Napton says : " The question is, conceding that the words ' dying 
 without issue ' mean an indefinite failure of issue, are there other words 
 which, of themselves, and in despite of this general manifestation of 
 intention to keep the property indefinitely in the descendants of the first 
 taker, point, incontestably and unequivocally to the death of the first 
 taker as a period contemplated by the testator when the limitation over 
 should take effect." 
 
 37 See ante, Sec. 393, and notes, 
 as See post , Sec. 399. 
 
 39 Such is the statutory rule in Alabama, California, Georgia, Ken- 
 578
 
 CH. XV.] EXECUTORY DEVISES. 397 
 
 And it may be stated as a general proposition that in the 
 other States the courts are receding from their former strict 
 construction in favor of its being an indefinite failure of 
 issue, so that, whenever it is possible to gather together suffi- 
 cient circumstances to establish the intention to limit upon 
 a definite, instead of an indefinite, failure of issue, the courts 
 will readily do so, sometimes availing themselves of very slight 
 circumstances in order to reach the conclusion which is most 
 favorable to the validity of the devise. For example, in a 
 devise to Thomas and his heirs, and if he die without issue, 
 living William, then to William, the devise was held to refer 
 to a failure of issue during the life of William. 40 So, also, 
 where the contingency was that the person should die, leaving 
 no issue behind him, or where the second limitation was only a 
 life estate, it was held to mean a definite failure of issue. 41 
 
 tucky, Maryland, Michigan, Minnesota, Mississippi, Missouri, New Jer- 
 sey, New York, North Carolina, South Carolina, Tennessee and Vir- 
 ginia. 2 Jar. on Wills (5 Am. ed.) 340; Worrill V. Wright, 25 Ga. 659; 
 Condict v. King, 13 N. J. 375; Fields v. Watson, 23 S. C. 42; Ford t. 
 Cook, 73 Ga. 215; Black v. Williams, 51 Hun 380. 
 
 40 Pells v. Brown, Cro. Jac. 590. 
 
 41 Porter v. Bradley, 3 T. R. 143; Trafford V. Boehm, 3 Atk. 440; 
 Forth v. Chapman, 1 P. Wms. 663. Where the limitation over is to 
 others, or to the surviving children or issue of the first taker, a definite 
 failure of issue is generally presumed to be intended. Jackson v. Chew, 
 12 Wheat. 153; Brightman V. Brightman, 100 Mass. 238; Lion V. Bur- 
 tiss, 20 Johns. 483; Cutter V. Doughty, 23 Wend. 513; Ingersoll's Ap- 
 peal, 86 Pa. St. 240. The tendency is to construe " die without leav- 
 ing issue," or " leaving no issue," as meaning a definite failure of is- 
 sue. Maurice v. Maurice, 43 N. Y. 303; Hill v. Hill, 74 Pa. St. 173, 
 15 Am. Rep. 545; Edwards v. Bibb, 43 Ala. 666. Contra, Malcom v. 
 Malcom, 3 Cush. 472 ; Haldeman v. Haldeman, 40 Pa. St. 29 ; Patterson 
 v. Ellis, 11 Wend. 289; Tongue v. Nutwel, 13 Md. 415. So, also, was 
 a definite failure of issue held to be intended by the clause dying " with- 
 out lawful heirs," or " without lawful heirs of his body." Abbott v. 
 Essex Co., 18 How. 202; Seibert v. Butz, 9 Watts 490; Berg v. Ander- 
 son, 72 Pa. St. 87; Simmonds v. Simmonds, 112 Mass. 157; Bullock f. 
 Seymour, 33 Conn. 290. On the other hand, a devise to sons, but if 
 they die without issue, then " to my surviving children," has been held 
 to mean an indefinite failure of issue. See Lapsley v. Lapsley, 9 Pa. 
 St. 130; Clark v. Baker, 3 Serg. & R. 470; Doyle v. Mullady, 33 Pa. 
 
 579
 
 MS EXECUTORY DEVISES. [PART II. 
 
 But the limitation over must be defined to take effect upon 
 failure of issue, in order to cut down the preceding estate from 
 an estate in fee simple. And if the limitation over is to vest 
 upon failure of "heirs" of the first taker, the limitation 
 would be invalid unless the word "heirs" eould be construed 
 to mean issue. 42 
 
 398. Same In deeds. The rules of construction, as 
 stated above, although in the main referable to springing and 
 shifting uses created by deed, must in their application to 
 these limitations receive the further restriction that there are 
 sufficient technical words of limitation present to convert the 
 prior limitation into a fee tail. If the first limitation is 
 expressly an estate in fee simple, the second limitation over 
 upon failure of issue of the first taker would not convert the 
 former into an estate tail, although the same limitation in a 
 will would have had that effect. Thus a conveyance to A. and 
 his heirs, and if he should die without issue, then over, A. 
 would take a fee upon condition, instead of an estate tail, as 
 he would have done if the limitation had been by devise. 43 On 
 
 St. 264; Holcombe v. Lake, 25 N. J. L. 605. So, also, to A. and B., 
 their heirs and assigns, but if they die without issue, then over. Lilli- 
 bridge V. Adie, 1 Mason 224. The truth is, the old rule, by which these 
 questions were determined, was really arbitrary, and in most cases di- 
 rectly contrary to the real intention of the testator, although the courts 
 professed to follow his intention as it appeared upon the will. For 
 example, in the case, cited above, of ^flevise to two or more sons, and 
 if they should die without issue, " thOT to my surviving children," an 
 indefinite failure of issue was held to be intended; whereas the most 
 natural and rational construction was, that the testator intended his 
 surviving children to take, in the event of the death of one of them 
 without issue. Those States which have by statute cut loose from these 
 common-law rules have acted wisely. See Peterson v. Jackson, 196 111. 
 40, 63 N. E. Rep. 643. 
 
 "Honiet v. Bacon, 126 Pa. St. 176; Cochran v. Cochran, 127 Pa. St. 
 486; Underwood v. Robbins, 117 Ind. 308. See Underwood v. Magruder 
 (Ky. 1905), 87 S. W. Rep. 1076. 
 
 "Coltman v. Senhouse, Pollexf. 536; Daviess v. Speed, 2 Salk. 675; 
 Abraham v. Twigg, Cro. Eliz. 478 ; Hall V. Priest, 6 Gray 18 ; 2 Washb. 
 on Real Prop. 711, 712. It is apparent, from the small number of cases 
 580
 
 CH. XV.] EXECUTORY DEVISES. $ 399 
 
 the other hand, the question as to the definite or indefinite 
 failure of issue is more liberally determined when it refers to 
 shifting uses than in the case of executory devises, because of 
 the common disinclination of the courts to construe the will 
 so as to disinherit the heir at law. 44 
 
 399. Doctrine of perpetuity. We have seen that the com- 
 mon-law restrictions, as to the kinds and classes of estates 
 which might be carved out of a fee, do not apply to executory 
 devises or springing and shifting uses. As a consequence, if 
 there was no restraint as to the time when an executory 
 devise or future use should vest in possession, lands might be 
 so conveyed to uses, or by way of executory devises, that the 
 power of alienation might be indefinitely suspended, thereby 
 preventing that change of ownership in lands, which has ever 
 been considered so salutary to the welfare of the country. The 
 courts, therefore, at a very early day, laid down the rule 
 that executory interests, whether by way of use or devise, 
 must, in order to be valid limitations, take effect in possession 
 within a life or lives in being, and twenty-one years there- 
 after. 45 To this was added the nine months required by 
 
 cited, that this question very rarely arises in respect to springing and 
 shifting uses. 
 
 **2 Washburn on Real Prop. 711; Forth v. Chapman, 1 P. Wms. 603; 
 Hall v. Priest, 6 Gray 18. 
 
 45 2 Washburn on Real Prop. 701, 702. This limit of the time within 
 which an executory interest must take effect in possession to be valid 
 was, no doubt, suggested by the fact that an estate tail, according to the 
 English law, could not be made inalienable for any longer period. For 
 example, A. would settle his lands to himself for life, remainder to his 
 eldest son in tail male, remainder to his second son in tail male, remain- 
 ders over. Since an. estate tail could be barred by common recovery,. 
 A., in settling his estate in this manner, could only make the lands in- 
 alienable until the eldest son was born and became of age. It would, 
 therefore, at the farthest, remain inalienable during his life and twenty- 
 one years thereafter, viz., a life or lives in being and twenty-one year* 
 thereafter. This doctrine as to the probable origin of the doctrine of 
 perpetuity is supported by Mr. Washburn (2 Washburn on Real Prop. 
 702) ; and it might be inferred from the discussion by Mr. Williams of 
 
 581
 
 399 EXECUTORY DEVISES. [PART II. 
 
 nature for the gestation of a child en venire sa mere, when 
 posthumous children were declared capable of taking future 
 estates. 48 If the executory interest could, by any possibility, 
 take effect beyond that period, it was void, even though it 
 afterwards did, as a matter of fact, take effect within the 
 period. It must be absolutely certain to vest within that 
 period, if at all, in order to be valid. 47 If the future limita- 
 tions be void for this reason, it leaves the prior limitation, 
 if any, free from the condition, making what was a condi- 
 tional estate an absolute one. 48 A limitation, void because it 
 offends the doctrine of perpetuity, will be void altogether, and 
 cannot be held, under the cy pres rule of construction, to be 
 good as to that part which keeps within the period of per- 
 petuity, and void only as to the excess. 49 And where the 
 
 estates tail, marriage settlements, and the doctrine of perpetuity in the 
 same connection (see Williams on Real Prop. 50, 51), that he also had 
 in mind the idea of their common origin. 
 
 46 2 Washburn on Real Prop. 702, 703; Williams on Real Prop. 319. 
 
 <7 Purefoy V. Rogers, 2 Saund. 388; Nottingham V. Jennings, 1 Salk. 
 233; Duke of Norfolk's Case, 2 Chanc. Cas. 1; Wood V. Griffin, 46 N. 
 H. 234; Andrews V. Jackson, 16 Johns. 399; 'Donahue v. McNichols, 61 
 Pa. St. 78; Mandlebaum v. McDonnell, 29 Mich. 78, 18 Am. Rep. 61; 
 Appleton's Appeal, 136 Pa. St. 354. See contra, Palms v. Palms 
 (Mich.), 36 N. W. Rep. 419. 
 
 <8Tud. Ld. Cas. 361; Nottingham v. Jennings, 1 Salk. 233; Beard V. 
 Westcott, 5 B. & Aid. 801; Philadelphia v. Girard, 45 Pa. St. 27; Shep- 
 hard v. Shephard, 2 Rich. Eq. 142; Coggin's Appeal, 124 Pa. St. 579; 
 Hale v. Hale, 124 III. 399; Fowler v. Ingersoll, 50 Hun 60; Stout v. 
 Stout 44 N. J. Eq. 479; Goldtree V. Thompson, 79 Cal. 613; Penning- 
 ton v. Pennington, 70 Md. 418; Henderson v. Henderson, 46 Hun 509; 
 Brown v. Brown (Tenn.), 6 S. W. Rep. 869; Fowler v. Ingersoll, 2 N. Y. 
 S. 833; Davis v. Buford's Exrs. (Ky.), 3 S. W. Rep. 4. 
 
 < Leak V. Robinson, 2 Meriv. 362; Fox V. Porter, 6 Sim. 485; Evers 
 v. Challis, 7 H. L. Cas. 555; Jackson V. Phillips ; 14 Allen 572. Still 
 there is a class of cases, in which parts of a testator's will will be car- 
 ried into effect, while other parts which are void on account of remote- 
 ness, will be discarded. But this will be done, only when substantial 
 justice will be done to all parties concerned, and when the paramount or 
 general intention of the testator would then be carried into effect. See 
 Arnold r. Congreve, 1 Russ. & Myl. 279; Carver v. Bowles, 2 Russ. & 
 Myl. 306; Church v. Kemble, 5 Sim. 522. 
 582
 
 CH. XV.] EXECUTORY DEVISES. 399 
 
 devise is susceptible of two or more constructions, that con- 
 struction will be adopted which will not offend the rule of 
 perpetuity. 50 If the limitation is dependent in the alternative 
 upon one of two events, one of which must happen within 
 the period of perpetuity while the other is remote, it will be 
 a good limitation, except that it will vest only upon the hap- 
 pening of the event which is not remote, while the other con- 
 dition is void and has no effect upon the devise. 51 The great 
 est difficulty is experienced in applying this rule against per- 
 petuity to limitations, upon failure of issue. If the limita- 
 tion cannot be construed as a reminder after an estate tail, or 
 an executory devise to take effect upon a definite failure of 
 issue, it would be void, since an executory devise, after an in- 
 definite failure of issue, cannot always take effect within the 
 period of perpetuity. 52 Since estates tail cannot be created 
 out of a term of years, the courts are inclined to construe a 
 failure of issue in the devise of a term to mean a definite fail- 
 ure of issue, referable to the death of the ancestor, upon the 
 failure of whose issue the future limitation is to vest. Other- 
 wise such future limitation could never take effect, since it 
 would always offend the rule against perpetuities. 53 It is 
 
 so Roe V. Vingut, 117 N. Y. 204; Sulany r. Middleton (Md.). 10 
 Atl. Rep. 146. The rule, in construing a will, that the law favors the 
 vesting of estates in the common-law sense and in the statutory sense, 
 as regards the subject of perpetuities, is not for use except in solving 
 uncertainties. In re Moran's Will (Wis. 1903), 96 N. W. Rep. 367. 
 
 si Fowler V. Depan, 26 Barb. 224 ; Schetter V. Smith, 41 N. Y. 328 ; 
 Armstrong V. Armstrong, 14 B. Mon. 333; Burrill v. Boardman, 43 
 N. Y. 254. 
 
 52 Forth v. Chapman, 1 P. Wms. 663 ; Doe v. Ewart, 7 A. & E. 636 ; 
 Terry V. Briggs, 12 Mete. 22; Hall V. Priest, 6 Gray 18; Anderson r. 
 Jackson, 16 Johns. 382; Gray v. Bridgworth, 33 Miss. 312; Hackney v. 
 Tracy, 137 Pa. St. 53. As to when such a limitation would be a re- 
 mainder after an esate tail, instead of an executory devise after a fee, 
 see ante, Sec. 393. As to when a definite or indefinite failure of issue 
 is intended, see ante, Sees. 397, 398. 
 
 53 Forth v. Chapman, 1 P. Wms. 63 ; Hall v. Priest. 6 Gray 18; Allen- 
 der's Lessee v. Sussan, 33 Md. 11, 3 Am. Rep. 171; Morehouse v. Cothpal, 
 22 N. J. L. 430; Biscoe v. Biscoe, 6 Gill & J. 232; Brummet v. Bar- 
 
 583
 
 399 EXECUTORY DEVISES. [PART II. 
 
 also difficult at times to determine whether in the case of an 
 executory devise to a class, when some cannot take because too 
 remote, the whole devise is void as against perpetuity, or only 
 that part which offends. The determination of the question 
 depends upon the ability to separate the good from the bad, 
 and at the same time preserve the intention of the testator. If 
 this can be done, and the parties who cannot take are not 
 thereby prejudiced, then only that part of the devise will be 
 void which is too remote, while the devise will be upheld and 
 carried out in favor of those who can take. If the partial 
 enforcement of the devise will work an injury to those who 
 are excluded, or confer upon the fortunate ones benefits, not 
 intended by the testator, the whole devise will then be void. 54 
 It must always be borne in mind that the rule of perpetuity 
 only prohibits the vesting of future contingent estates beyond 
 the permissible period. Hence, whenever the devise is vested 
 the postponement of the time of enjoyment beyond the period 
 of perpetuity does not affect the validity of the limitation. 55 
 In this country the common law rule of perpetuity, that future 
 limitations must vest within a life or lives in being and twenty- 
 one years thereafter, still generally prevails, although in some 
 of the States the period has been shortened by statute. The 
 most important change was made in New York and other 
 States, where the period was limited to two lives in being. 50 
 
 her, 2 Hill (S. C.), 543; Moore v. Howe, 4 B. Mon. 199. See Teit 
 *. Richard (N. J. Ch. 1902), 53 All. Rep. 824; Stone v. Bradlee 
 (Mass. 1903), 66 N. E. Rep. 324. 
 
 0* James v. Wynford, 1 Smale & G. 40; Griffith v. Pownall, 13 Sim. 
 393; Catlin v. Brown, 11 Hall 372; Webster v. Boddington, 26 Beav. 
 128. See 2 Washb. Real Prop. 727-730; Stout V. Stout (N. J.), 15 Atl. 
 Rep. 843; Andrews V. Rice, 53 Conn. 566. 
 
 ss Hillyer v. Vandewater, 121 N. Y. 681. 
 
 6 1 Rev. Stat. N. Y. 723, Sec. 15; Greenland v. Waddell, 116 N. Y. 
 234; Henderson v. Henderson, 46 Hun 509; Wood's Estate, 55 Hun 
 204; Haynes v. Sherman, 117 N. Y. 433; Kennedy v. Hoy, 105 N. Y. 
 134; Ward v. Ward, 105 N. Y. 68; Ford v. Ford, 70 Wis. 19; Rice v. 
 Barrett, 102 N. Y. 161; Farrand V. Petit, 84 Mich. 671; Cotting V. 
 Schermeshorn, 58 Hun 610; Lee v. Tower, 124 N. Y. 370. 
 584
 
 CH. XV.] EXECUTORY DEVISES. 400 
 
 The same change in the rule has been made in other States. 
 But this caution must be observed in determining which rule 
 of perpetuity applies. While generally the limitation will be 
 governed by the rule of perpetuity of the State in which the 
 testator was domiciled, or his real estate was situated, if the 
 limitation referred to real property at the time of his death, 57 
 yet it has been held that where the testator directs his executor 
 to sell his lands in one State, and re-invest in lands in another 
 State, subject to trusts and limitations, which offend the rule 
 of perpetuity in the former State, but which is valid according 
 to the rule in the latter State, the limitation will be valid. 58 
 
 400. Rule against accumulation of profits. It is very 
 often desirable that testators should have the right to direct 
 that the profits of their estates should be allowed to accumulate 
 for a certain time before being distributed among the persons 
 designated in the will. At common law there was no restric- 
 tion as to the time within which the profits may be directed to 
 accumulate, except the rule of perpetuity. As long as the ac- 
 cumulation was kept within the period of perpetuity it was a 
 valid limitation. This is the general rule of law in this 
 country at the present day, 59 but in England, and insome of 
 the States, such accumulations are prohibited for a longer 
 period than the life of the grantor and twenty-one years there- 
 after, or the minority of the person or persons who are to 
 take. 80 
 
 See post, Sec. 629. 
 
 68 Ford v. Ford (Mich.), 44 N. W. Rep. 1057. 
 
 so 2 Washburn on Heal Prop. 730; Hale v. Hale (111.), 17 N. E. Rep. 470. 
 In New York and Pennsylvania statutes have been passed, similar in 
 their provisions to the English statute mentioned in the text. 1 Rev. 
 Stat. N. Y. 726, Sec. 37; Manice v. Manice, 43 N. Y. 305; Pard. Dig. 
 (Pa. St. Laws) 853. See Morrison v. Schoer (111. 1902), 64 N. E. Rep. 
 545; Tobin v. Graf, 80 N. Y. S. 5. 
 
 o Statute 39, 40 Geo. Ill Ch. 98; 2 Washburn on Real Prop. 731; 
 Williams on Real Prop. 320; Goldtree v. Thompson, 79 Cal. 613; Roe f. 
 Vingut^ 117 N. Y. 204; Farmer's Estate, 6 Dens. 433; Schwartz's App. 
 119 Pal St. 337; Brubaker's Appeal (Pa.), 15 Atl. Rep. 708; Scott r. 
 
 585
 
 401 EXECUTORY DEVISES. [PART II. 
 
 401. Executory devises of chattel interests. At common 
 law a remainder could not be limited in a chattel interest, after 
 a prior limitation for life, or for any indefinite period which 
 would be a freehold estate, if carved out of a fee. Such limita- 
 tions would be void as common-law estates. 01 Nor can an es- 
 tate tail be created out of a term, the statute de donis referring 
 only to tenements, estates of which tenure can be predicated. 
 A devise of a chattel interest to one and the heirs of his body 
 would be the devise of an absolute estate. 02 But the rule 
 in Shelley's Case has been held to apply to the limitations of 
 leasehold estates, so that if a leasehold be devised to A., for 
 life, with remainder to the heirs of the body or in general of 
 A., A. will take an absolute estate in fee, instead of for life. 63 
 But future limitations were at an early day permitted to be 
 created in chattel interests to take effect as executory devises, 
 
 West, 63 Wis. 529. This statute was passed in consequence of the foolish 
 and vain ambitions of a man named Thelluson, to make the later genera- 
 tions of his family wealthy and powerful, by providing in his will for the 
 accumulation of the profits during the lives of his then existing heirs. 
 If it had been carried out, the estate would have amounted to 19,000,- 
 000, and it was then to be distributed among two or three persons. 
 The will attracted widespread attention, and, it being thought dangerous 
 to permit the accumulation of such vast wealth in the hands of pri- 
 vate persons, as well as cruel and unjust to the immediate heirs, an at- 
 tempt was made to break the will. See Thelluson V. Woodford, 1 B. & 
 P. N. R. 396; s. c. 4 Ves. 227. But the court declared the limitation 
 valid, since it did not break the rule against perpetuities. The will 
 provided for the accumulation of the profits of the estate during the 
 lives of all his children, grandchildren and great-grandchildren living 
 at his death, and should, at the death of the last survivor, be divided 
 up among certain descendants who would then be in being. It will he 
 apparent that the testator kept within the rule against perpetuity. 
 
 i2 Washburn on Real Prop. 722; Fearne Cont. Rem. 401; Tissen V. 
 Tissen, 1 P. Wms. 500 ; Manning's Case, 8 Rep. 95 ; Smith v. Bell, 6 Pet. 
 68; Merrill r. Emery. 10 Pick. 507; Gillespie V. Miller, 5 Johns. Ch. 21; 
 Cooper T. Cooper, 1 Brev. 355. 
 
 62 2 Washburn on Real Prop. 723; Fearne Cont. Rem. 401, 466; Lovies' 
 Case, 10 Rep. 87; Doe v. Lyde, 1 T. R. 593; Hughes v. Nicklas, 70 Md. 
 484. 
 
 63 Hughes V. Nicklas, 70 Md. 484; Markley's Appeal, 132 Pa. St. 352. 
 See Baldwin V. Tucker (N. J. Ch. 1902), 55 Atl. Rep. 1132. 
 
 586
 
 CH. XV.j EXECUTORY DEVISES. 401 
 
 and it matters not whether there is or is not a preceding limi- 
 tation, or whether the second limitation takes effect in deroga- 
 tion of the prior limitation. In each case the future limitation 
 is construed as an executory devise; and the rules here laid 
 down for the government of the other two classes of executory 
 devises are in the main applicable to these. 64 The only restric- 
 tion upon the power to create a future estate in a chattel lies 
 in the nature of the chattel itself. If it is in its nature cap- 
 able of sustaining a present and a future enjoyment, a future 
 limitation will be good. But if the present enjoyment of the 
 chattel involves a consumption of the thing itself, then of ne- 
 cessity any future limitation would be void. 65 If the remain- 
 der is limited in a chattel interest to the "heirs" of a certain 
 person, the remainder-men will be ascertained by ascertaining 
 who will inherit the real estate under the statute of descent. 00 
 
 *Tissen v. Tissen, 1 P. Wms. 500; Merrill v. Emery, 10 Pick. 507; 
 Oillespie V. Miller, 5 Johns. Ch. 21; Moffatt V. Strong, 10 Johns. 12; 
 Keene's Appeal, 64 Pa. St. 273; 2 Bla. Com. 174; 2 Washburn on Real 
 Prop. 724; Miller's Ex'x v. Simpson (Ky.), 2 S. W. Rep. 171. 
 
 esAtty.-Gen. v. Hall, Fitzg. 314; Bull V. Kingston, 1 Meriv. 314; 2 
 Washburn on Real Prop. 724. But see Upwell v. Halsey, 1 P. Wms. 652 ; 
 Smith V. Bell, 6 Pet. 68; Rubey V. Barnett, 12 Mo. 1; Whittemore V. 
 Russel, 80 Me. 297; Walker v. Pritchard, 121 111. 221. 
 
 Lincoln v. Aldrich, 149 Mass. 368; Mason v. Bailey (Del.), 14 Atl. 
 Rep. 309; Little's Appeal, 117 Pa. St. 14; Reed's Appeal, 118 Pa. St. 
 215. But see White v. Stanfield (Mass.), 15 N. E. Rep. 919. See Lacey 
 v. Floyd (Texas 1905), 87 S. W. Rep. 665; Belcher's Est. (Pa. 1905), 
 61 Atl. Rep. 252. 
 
 587
 
 CHAPTER XVI. 
 
 POWERS. 
 
 SECTION 402. The nature of powers in general. 
 
 403. Powers of appointment. 
 
 404. Kinds of powers. 
 
 405. Suspension and destruction of powers. 
 
 406. How powers may be created. 
 
 407. Powers distinguished from estates. 
 
 408. Power enlarging the interest, with which it is coupled. 
 
 409. Who can be donees. 
 
 410. By whom the power may be executed. 
 
 411. Mode of execution. 
 
 412. Who may be appointees. 
 
 413. Execution by implication. 
 
 414. Excessive execution. 
 
 415. Successive execution. 
 
 416. Revocation of appointment. 
 
 417. Defective executions How and when cured. 
 
 418. Non-executions. 
 
 419. Rules of perpetuity. 
 
 420. Rights of donee's creditors in the power, 
 
 421. The rights of creditors of the beneficiary. 
 
 402. The nature of powers in general. A power, in the 
 most comprehensive sense in which the word can be used, is 
 an authority conferred upon a person to do a thing. But in 
 its present application it signifies an authority to dispose of 
 property, which is vested either in the person exercising the 
 power, or in some other person. Under this latter signification 
 three distinct classes of powers will be recognized : First, stat- 
 utory powers ; second, powers of attorney ; and third, what are 
 generally called powers of appointment, or simply powers. A 
 statutory "power is one which is created and vested in a per- 
 son by legislative enactment. It is an act of the government ; 
 it derives its authority from the Legislature, and is subject to 
 588
 
 CH. XVI.] POWERS. 403 
 
 the same rules of interpretation and construction as statutes in 
 general. 1 Powers of attorney are authorities conferred by a 
 principal upon an agent to perform certain acts in the manner 
 indicated in the instrument of authority. The exercise of this 
 power is the act of the principal through, or by means of, the 
 agent. It is exercised in the name of the principal, and re- 
 quires as much formality in execution as if the principal were 
 acting himself. This class of powers, so far as they pertain to 
 the law of real property, will be more specifically explained 
 in subsequent pages. 2 In both classes of powers just men- 
 tioned, statutory powers and powers of attorney, the legal title 
 to the property thus disposed of is conveyed, not by the crea- 
 tion of the power, but by the deed of conveyance made in pur- 
 suance of the power. The title remains in the original owner, 
 unaffected by the creation of the power, until its execution. It 
 is divested only when the deed of conveyance is executed and 
 delivered. 3 
 
 403. Powers of appointment. The third class of powers, 
 enumerated above, is what concerns us at present, viz. : powers 
 of appointment. These powers, which are generally known 
 simply as powers, are modes of disposition of property, which 
 operate under the Statute of Uses or the Statute of Wills. 
 The creation of the power invests in the person to whom it is 
 granted, called the donee, a present indefeasible executory in- 
 terest in the land. It is a right to convey the land, and cannot 
 be revoked by the donor, nor is it revoked by his death.* The 
 
 1 Baltimore v. Porter, 18 Md. 284. See also, Markham v. Porter, 33 
 Ga. 508; In the Matter of Bull, 45 Barb. 334; Leak v. Richmond Co., 64 
 N. C. 132. 
 
 2 See post, Sees. 569, 570. 
 
 32 Washburn on Real Prop. 610; 1 Sugden on Pow. (ed. 1856), 1, 171, 
 174; 3 Washburn on Real Prop. 277-279. "A power of sale may law- 
 fully reside in one who has no legal or equitable interest in the property 
 whu-h in the subject of sale." Coleman V. Cabaniss (Ga. 1904), 48 S. 
 E. Rep. 927. 
 
 < Roland v. Coleman, 76 Ga. 652. 
 
 589
 
 403 POWERS. [PART n. 
 
 common law knows of no class of powers which will in them- 
 selves, by their very creation, convey an interest in real prop- 
 erty, and thus incumber the title thereof. 5 There are only 
 two modes of creating such a power. One is by way of a use. 
 The power in such a case is "a right to limit a use." (Kent.) 
 In the exercise of the power a use is created, which is imme- 
 diately executed into a legal estate by the Statute of Uses in 
 the person to whom the use has been limited, and who is called 
 the appointee. The estates created by means of these powers 
 are either contingent, springing or shifting uses, according to 
 their relation with the other limitations in the deed or will cre- 
 ating the power, and are governed by the same rules of con- 
 struction. 6 An ordinary contingent use vests upon the hap- 
 pening of an uncertain event. In the case of an estate created 
 by means of a power of appointment, the uncertain event is 
 the exercise of the power. 7 The other mode of creating this 
 kind of power is by will under the Statute of Wills. The es- 
 tate so created is an executory devise, deriving its force and 
 effect from the will itself. All powers in a will operate under 
 the Statute of Wills, except where it takes the form of a power 
 to limit a use, and there is a special seisin raised by the will 
 to support the use thus limited. Then it operates under the 
 Statute of Uses, as a contingent or future use. 8 Whether the 
 power be created by deed or by will, the appointee 's estate will 
 have the same characteristics as it would have had if, instead 
 of the power, it had been limited in the instrument creating 
 the power. And in order to determine the rights of the ap- 
 pointee, and the validity and character of the estate appointed 
 to his use, it must be tested by the relation it would bear to 
 the other limitations of the property, if it had occupied the 
 
 s Sugden on Pow. (ed. 1856) 4; Co. Lit. 237 a. See contra, Chance 
 on Pow. Sees. 5-12. 
 
 Co. Lit. 271 b, n. 231; Bac. Law Tr. 314; 1 Spence Eq. Jur. 455; 4 
 Kent's Com. 334; Williams on Real Prop. 394. 
 
 7 Co. Lit. 271 b, Butler's note, 231; Tud. Ld. Cas. 264; Sheph. Tou6h. 
 529; Williams on Real Prop. 294; Rodgers V. Wallace, 5 Jones L. 182. 
 
 cSugden on Pow. (ed. 1856) 240; Prest. Abst. 347. 
 590
 
 CH. XVI. POWERS. 404 
 
 place of the power in the original instrument. The appointor 
 is merely an instrument employed to limit the estate ; the ap- 
 pointee is in by the original instrument, which creates the 
 power. 9 The foregoing explanation of the doctrine of powers 
 is true as to this country generally, with, perhaps, the only ex- 
 ception of New York and of those States in which the New 
 York legislation has been copied. In those States all powers, 
 heretofore known as operating under the Statute of Uses and 
 the Statute of Wills, have been abolished, and only certain 
 powers, enumerated in the statute, can now be created. But 
 they have received at the hands of the courts practically the 
 same constructions as powers in other States, so that what is 
 subsequently said of powers of appointment is equally appli- 
 cable to powers in New York, the only difference being that 
 there they operate under the statute of New York, instead of 
 the old English Statutes of Uses and Wills, and are confined 
 to certain objects. 10 
 
 404. Kinds of powers. Powers of appointment may be 
 conferred upon persons having an interest or estate of some 
 kind in the land, or they may be given to persons who are 
 otherwise altogether strangers to the property. In the latter 
 case they are called collateral or naked powers; the power is 
 not attached to any present estate, and the donee possesses the 
 mere right to exercise the power. 11 In the former case the 
 power is either appendant or in gross, according to its relation 
 
 1 Sugden on Pow. (ed. 1856) 171, 242; Co. Lit. 271 b, Butler's note, 
 231, Sec. 3, PI. 4; Gilbert on Uses, 127 n; 4 Kent's Com. 337; 4 Cruise 
 Dig. 220; 2 Washburn on Real Prop. 036, 637; Doolittle v. Lewis, 7 
 Johns. Ch % 45; Bradish v. Gibbs, 3 Jobns. Ch. 550. 
 
 ION. Y. Rev. Stat. Art. 3, Sees. 86-148; Hotchkiss v. Elting, 36 Barb. 
 38; Weinstein t?. Weber, 178 N. Y. 94, 70 N. E. Rep. 115. 
 
 nTud. Ld. Cas. 286; Williams on Real Prop. 294; 1 Sugden on Pow. 
 107 ; 2 Washburn on Real Prop. 639 ; Richardson f. Hunt, 59 Hun 627 ; 
 Potter v. Couch, 141 U. S. 296, 1 Rev. St. N. Y. (Edm. ed.), Pt. 2, C. 1. 
 Tit. 2, Sees. 55, 59; Robinson v. Adams, 80 Miss. 1098, 81 App. Div. 20, 
 71 N. E. Rep. 1139. See Coleman v. Cabaniss (Ga. 1904), 48 S. K. 
 Rep. 927. 
 
 591
 
 404 POWERS. [PART n. 
 
 to the estate, to which it is attached. Any power whose execu- 
 tion creates an estate, which issues, partly or wholly, out of 
 an estate vested in the donee, is a power appendant. Thus 
 where a tenant for life has the right to make leases in pos- 
 session, which are to continue until their natural termination, 
 independent of the lessor 's life estate, this is called a power ap- 
 pendant. The lease granted takes effect immediately in dero- 
 gation of the tenant's life-estate, and binds the remainder-man, 
 if it does not expire during the continuance of the life estate. 12 
 Bowers in gross are those which do not conflict with the estate 
 of the donee, and authoriae the limitation of estates, which 
 take effect out of the interest or estate of some one else. Such 
 would be a power given to a life tenant to dispose of the re- 
 mainder, to raise a jointure for his wife, to make leases com- 
 mencing at his death. The exercise of these powers cannot by 
 any possibility affect the estates to which they are attached. 13 
 Powers are also divided into general, and special or particular. 
 If the donee has the power to appoint to whom he pleases, it is 
 a general power ; and if he can appoint to only certain particu- 
 lar persons, it is a special or particular power. 14 Then again a 
 general power may be for the benefit of the donee, or one in 
 trust for certain beneficiaries. 15 If the power be to create a 
 new estate, it is called a power of appointment. 10 If it be 
 
 12 Williams on Real Prop. 310; 2 Washburn on Real Prop. 639, 640; 
 Maundrell v. Maundrell, 10 Ves. 246; Wilson V. Troup, 2 Cow. 236. 
 
 is 1 Sugden on Pow. 114; 4 Cruise's Dig. 220; Gorin v. Gordon, 38 
 Miss. 214; Wilson v. Troup, 2 Cow. 236; Tud. Ld. Cas. 293. 
 
 i* 2 Washburn on Real Prop. 641; Co. Lit. 271 b, Butler's note, 231, PI. 
 4, Sec. 3; Williams on Real Prop. 309; Wright V. Wright, 41 N. J. Eq. 
 382. 
 
 is Tud. Ld. Cas. 294; Williams on Real Prop. 307, 308; Chance on 
 Pow., Sec. 34; Howell v. Tyler, 91 N. C. 207. 
 
 10 " The power of appointment given by the will of B. devising prop- 
 erty to J. for life, with authority to dispose of it by will, is properly 
 exercised by J. devising the property to M. for life, with power to dis- 
 pose of it by will; the power conferred on M. by J. not being a mere 
 delegation of the power vested in J. by B.'s will." Mays v. Beech 
 (Tenn. 1905), 86 S. W. Rep. 713. 
 592
 
 CH. XVI.] POWERS. 405 
 
 simply to destroy an estate already vested, it is called a power 
 of revocation. A power of appointment always implies a 
 power of revocation, but as a rule an express power of revoca- 
 tion will not raise by implication a power of appointment. A 
 power of appointment cannot be exercised without revoking a 
 previous limitation ; by the exercise of the power of revocation, 
 where there is no express power of appointment, the land re- 
 verts to the grantor and his heirs. 17 
 
 405. Suspension and destruction of powers. All general 
 powers, given for the benefit of the donee, may be released by 
 him to one holding the freehold, whether in possession, re- 
 mainder, or reversion, and thus destroyed. And this too, 
 whether the power be appendant, in gross, or collateral. For, 
 it being given for the sole benefit of the donee, if he releases 
 it, he will not be allowed thereafter to exercise it in derogation 
 of his own release. 18 But a special power, or a general power 
 in trust for certain beneficiaries, cannot be extinguished or 
 released by an act of the donee alone. The power in such 
 cases is in the nature of a trust, and the beneficiaries have 
 rights therein which are beyond the power of the donee to de- 
 stroy. 19 And where the exercise of the special power is man- 
 datory, thereby imposing upon the donee a peremptory duty 
 to exercise it ; or where the discretion, if any is given the donee 
 as to its exercise, is to be exerted and employed at some future 
 time, the donee has no power to extinguish or release it, even 
 though the persons interested in, and to be benefited by its ex- 
 
 174 Cruise's Dig. 210. 220; Sandf. on Uses 154; Tud. Ld. Cas. 264; 4 
 Kent's Com. 415; Wright v. Tallmadge, 15 N. Y. 307; Ricketts v. Louis- 
 ville, etc., R. R. Co. (Ky.), 15 S. W. Rep. 182. 
 
 is Tud. Ld. Cas. 294; Edwards f. Slater, Hard. 416; Chance on Pow., 
 Sec. 3115; 1 Sugden on Pow. 112; Williams on Real Prop. 310; West f. 
 Bernly. 1 Russ. & M. 431; Grosvenor r. Bowen > 15 R. I. 540; Spencer 
 v. Kimhall (Me. 1904). 98 Me. 499. 57 Atl. Hop. 703. 
 
 "Co. Lit. 237 a, 265 b; 1 Sugden on Pow. 117; Doe v. Smyth, 6 B. A 
 C. 172; . c. 9 Dowl. & Ry. 136; Townson v. Tickell, 3 B. & A. 31; 
 Chance on Pow., Sec. 3105; Graham v. Whitridge (Md. 15)04), 57 Atl. 
 Rep. C09. 
 
 38 51)3
 
 405 POWERS. [PART n. 
 
 ercise, consent to release, and join in the deed. 20 But if it is 
 within the discretion of the donee when and whether, if at all, 
 he should execute the power, a joint deed of release by him- 
 self and the beneficiaries will extinguish the power. 21 Where 
 the power is appendant, the conveyance of the entire estate to 
 which the power is annexed will destroy the power. The 
 power can only be exercised in derogation of the estate, and the 
 donee will not be permitted to defeat his own grant by execut- 
 ing the power. 22 But if he conveys only a part of his estate, 
 leaving a reversion in him, the exercise of the power will only 
 be suspended or postponed to the estate so granted, and the 
 estate created by the power will vest upon the termination of 
 the prior demise. 23 The power may be exercised at any time; 
 only the enjoyment of the estate thus created is postponed. 24 
 But no conveyance of the estate of the donee, except by feoff- 
 ment, will cause an extinguishment of the power in gross. As 
 
 202 Washburn on Real Prop. 643; Chance on Pow., Sec. 3121; Will- 
 iams on Real Prop. See Dave V. Johnson, 141 Mass. 287. 
 
 21 Brown & Sterritt's Appeal, 27 Pa. St. 62 ; Allison v. Wilson's Exrs., 
 13 Serg. & R. 330. See Hare V. Cong. Soc. (Vt. 1904), 57 Atl. Rep. 964. 
 
 22Goodright f. Cator, Dougl. 460; Wilson v. Troup, 2 Cow. 195; 1 
 Sugden on Pow. 113-115; Parker v. W 7 hite, 11 Ves. Jr. 209; Walmesley 
 v. Jowett, 23 Eng. L. & E. 353; Jones V. Windwood, 4 Meas. & Wels. 
 653; Chance on Pow. Sees. 3155, 3159; Williams on Real Prop. 310; 
 Tud. Ld. Cas. 260, 290 ; 4 Cruise's Dig. 157 ; Bringloe v. Goodson, 4 Bing. 
 N. C. 726. 
 
 23 Ren v. Bulkeley, Dougl. 292; Tyrrell V. Marsh, 3 Bing. 31; Roper 
 V. Halifax, 8 Taunt. 845; Doe V. Scarborough, 3 Adolph. & Ell. 2; 4 
 Cruise's Dig. 221; Goodright V. Cator, Dougl. 477; Tud. Ld. Cas. 287. 
 See Graham v. Whitridge (Md. 1904), 57 Atl. Rep. 609. 
 
 24 1 Sugden on Pow. 114, 115, citing Bingloe v. Goodson, 4 Bing. N. C. 
 726; Anon, Moore 612; Bullock v. Thome, Moore 615; Ren v. Bulkeley, 
 Dougl. 292; Tud. Ld. Cas. 546; Chance on Pow., Sec. 402. Contra, 
 Snape v. Turton, Cro. Car. 472; Mordaunt V. Peterborough, 3 Keb. 305. 
 But if the power appendant enables only the creation of estates in pos- 
 session, as where it is a power to make leases in possession and not in 
 fieturo, the exercise of the power is altogether suspended. Bringloe v. 
 Goodson, 4 Bing. N. C. 726; 1 Sugden on Pow. 116. 
 
 594
 
 CH. XVI.] POWERS. 40(5 
 
 a rule a release is the only mode of extinguishing this kind of 
 power. 25 
 
 406. How powers may be created. Powers may be cre- 
 ated by deed or by will. They may be incorporated in the 
 same instrument which conveys the property, or they may be 
 indorsed thereon, or even granted by a separate instrument. 
 If the instrument be a deed operating by transmutation of 
 possession, the conveyance of the legal estate is necessary for 
 the creation of the power. In the case of every instru- 
 ment of conveyance, there can be a valid grant of power with- 
 out a transfer of the legal estate. 20 No particular words or 
 phrases are required. Any words which clearly indicate the 
 intention of the donor to create a power, and which define 
 its scope with a reasonable degree of certainty, will be suffi- 
 cient. This rule governs all classes of powers, whether oper- 
 ating under the Statute of Uses or the Statute of Wills. 27 
 Where the deed which creates the power, operates by transmu- 
 tation of possession, and a seisin is therefore raised by the 
 deed to support the use, which is to be created under the power r 
 the legal estate so conveyed must be as extensive as the use to> 
 
 25 Chance on Pow., Sec. 3172; Edwards v. Slater, Hard. 416; Savile v. 
 Blacket, 1 P. Wms. 777; 2 Washburn on Real Prop. 643; 1 Sugden on 
 Pow. 112. See Weinstein v. Webber, 178 N. Y. 94, 70 N. E. Rep. 115. 
 
 zcOuton v. Weeks, 2 Keb. 809; Fitz v. Smallbrook, 1 Keb. 134; 1 Sug- 
 den on Pow. 217, 228-231; Gilbert on Uses 46; Williams on Pers. Prop.. 
 246- Co. Lit. 271 b, III, Sec. 5, Butler's note; Powell on Devises; I. 
 Sandf. on Uses 195; Andrews' Case, Moore 107; Fearne Cont. Rem. 
 128; Rash v. Lewis, 21 Pa. St. 72; 3 Kent's Com. 319; Maundrell f. 
 Maundrell, 10 Ves. 255; 6 Cruise's Dig. 490. "A naked power of dis- 
 position under a will may exist exclusive of any beneficial interest in 
 the donee." Rehearing (1903), 69 N. E. Rep. 250, denied. Hammond 
 9. < roxton (Ind. 1904), 70 N. E. Rep. 368. 
 
 272 Washburn on Real Prop. 650; 1 Sugden on Pow. 118; McCord r. 
 McCord, 19 Ga. 602; Choofstall V. Powell, 1 Grant's Cas. 19; Bradley 
 v. Westcott, 13 Ves. 445; Smith v. Bell, 6 Pet. 68; Harris v. Knapp, 
 21 Pick. 416; Brant v. Va. Coal Iron Co., 93 U. S. 326; Best v. Best 
 (Ky.), 11 S. W. Rep. 600; Goudie v. Johnston, 109 Ind. 427; Logue v. 
 Bateman, 43 N. J. Eq. 434; Fritsch v. Klausing (Ky.), 13 S. W. Rep. 
 
 595
 
 407 POWERS. [PART H. 
 
 be thus created. The appointee under the power cannot take 
 a larger estate than that granted to the feoffee to uses. This 
 is only a special application of a general rule governing all 
 classes of uses. 28 
 
 'V 
 
 407. Powers distinguished from estates. As a conse- 
 quence of this liberal rule concerning words necessary to create 
 a power, it is very often difficult to determine whether the in- 
 tention of a testator was to give an estate in the land, or only 
 a naked power. Since technical words are used to create an 
 estate by deed, it rarely happens that doubt will arise in the 
 construction of a power by deed. The question, therefore, pos- 
 sesses importance only in relation to wills. 20 The intention of 
 the testator will always govern whenever it can be clearly as- 
 certained, even though the literal meaning of the words used 
 would indicate a different conclusion. 80 The most numerous 
 cases have arisen under devises, in which executors are di- 
 rected to sell lands for the purpose of distribution. If the ex- 
 ecutors are intended to have possession, until sale under the 
 power, then it is, of course, a power coupled with an interest, 
 and the estate does not descend for the time being to the 
 donor's heirs. 31 Succinctly stated, if the devise be that "the 
 
 241; Watson V. Sutro (Cal.), 24 Pac. Rep. 172; Woerz v. Rademacher, 
 120 N. Y. 62; In re Carr (R. I.), 19 Atl. Rep. 145; Brown v. Critten- 
 den (Ky.), 1 S. W. Rep. 421; Cooghan V. Ockershausen, 55 N. Y. Super. 
 Ct. 286; Ames V. Ames, 15 R. I. 12; Cherry V. Greene, 115 111. 591; 
 Wright V. Wright, 41 N. J. Eq. 382. 
 
 28 Co. Lit. 271 b, Butler's note 231; Cleveland v. Hallett, 6 Gush. 403; 
 1 Sugden on Pow. 231. 
 
 2 4 Kent's Com. 319; Sharpsteen v. Tillon, 3 Cow. 651; Peter v. 
 Beverley, 10 Pet. 532 ; Jackson V. Jansen, 6 Johns. 73 ; Jackson v. 
 Schauber, 7 Cow. 187; Walker u. Quigg, 6 Watts 87; Ladd v. Ladd, 8 
 How. 10; Richardson V. Hunt, 59 Hunt 627; Potter V. Couch, 141 U. S. 
 296; Bean V. Com. (Mass. 1904), 71 N. E. Rep. 784. 
 
 so Bloome v. Waldron, 3 Hill 361; see cases cited in preceding note; 
 Franklin v. Osgood, 14 Johns. 527; De Vaughn v. McLeroy, 82 Ga. 687; 
 In re Rising, 73 Law Ch. 455 (1904), 1 Ch. 533, 90 Law T. 504. 
 
 si Gray v. Lynch, 8 Gill 403; Hartley v. Minor's App. 53 Pa. 212; 
 Clarey V. Frayer, 8 Gill & J. 403 ; 4 Kent's Com. 320. 
 5CG
 
 CH. XVI.] POWERS. 408 
 
 executor shall sell," or that "the land shall be sold," only a 
 naked power is granted. But a devise to the executor to sell, 
 or words of similar import, will vest the legal title in him ; it 
 will be a power coupled with an interest. 32 All doubt is, of 
 course, removed where the will makes some other disposition 
 of the legal estate. 33 In New York, by statute, the executor in 
 all such cases takes only a naked power, unless some duty is 
 imposed upon him in regard to the management of the prop- 
 erty, which would require its possession. 34 
 
 408. Power enlarging the interest, with which it is coup- 
 led. If the power is general and coupled with an interest, 
 the duration of which is not clearly defined, as where there is 
 a devise of lands generally, with full power to dispose of them 
 by deed or by will, the devise will be construed to be that of an 
 estate in fee, and not simply a life estate with a general power 
 in gross attached thereto. But if the power is special, or a 
 particular estate is expressly given with a general power of 
 disposal, the power will not enlarge the estate, and the tes- 
 
 szYates v. Crompton, 8 P. Wms. 308; Lancaster v. Thornton, 2 Burr 
 1027; 1 Williams on Ex. 540; 4 Kent's Com. 326; 1 Sugden on Pow. 
 189-194; Jackson v. Shauber, 7 Cow. 18; Co. Lit. 113 a, Hargrave's 
 note 2; Greenough v. Wells, 10 Cush. 571; Gordon v. Overton, 8 Yerg. 
 121; Warfield V. English (Ky.), 11 S. W. Rep. 662; Herberts V. 
 Herberts' Exrs., 85 Ky. 134 ; Traphagen V. Levy, 45 N. J. Eq. 448 ; Per- 
 kins v. Presnell, 100 N. C. 220; Naar v. Naar, 41 N. J. Eq. 88; Spencer 
 v. Kimball, 98 Me. 499, 57 Atl. Rep. 793. 
 
 3 3 Den v. Avveling, 1 Dutch. 449; Hemingway v. Hemingway, 22 Conn. 
 462 ; Peter v. Beverley, 10 Pet. 532 ; Ladd v. Ladd, 8 How. 10 ; Inglis V. 
 McCook (N. J. Ch. 1904), 59 Atl. Rep. 630. 
 
 a* N. Y. Rev. Stat., Art. 2, Sec. 68 ; Aldrich v. Green, 1 N. Y. S. 549. 
 In Pennsylvania a statute provides that in all such cases, whatever 
 may be the phraseology used, the executor takes the power coupled with 
 the estate. Shippen's Heirs v. Clapp, 29 Pa. St. 265. "Where a will 
 devised all testator's realty to his wife for life, with power to devise, 
 sell, and mortgage the estate in fee, and convert the proceeds to her 
 own use, etc., the power conferred on the wife was absolute, within Rev. 
 St. 1898, Sec. 2112, defining an absolute power as one by means of 
 which the grantee is able in his lifetime to dispose of the estate for his 
 own benefit." Auer v. Brown (Wis. 1904), 98 N. W. Rep. 966. 
 
 597
 
 S 408 I-OWKHS. [PART n. 
 
 tutor's heirs will take as reversioners, if the power is not exer- 
 cised. 85 But this is not an absolutely invariable rule. If, 
 from the whole will it appears to have been the testator's inten- 
 tion to give a fee simple estate, the estate will be enlarged by 
 
 351 Sugden on Pow. 179, 180; Flintham's App., 11 Serg. & R. 23, 24; 
 Jackson v. Robbing, 16 Johns. 537; Burleigh v. Clough, 52 N. H. 272; 
 Herrick t'. Babcock, 12 Johns. 380; Reinders r. Koppelman, 68 Mo. 482, 
 30 Am. Rep. 482; Green v. Sutton, 50 Mo. 190; Urich's App., 86 Pa. St. 
 386, 27 Am. Rep. 707; Page V. Roper, 21 Eng. L. & E. 499; Crozier V. 
 Bray, 120 N. Y. 366; Glover v. Reid (Mich.), 45 N. W. Rep. 91; Jen- 
 kins v. Compton (Ind.), 23 N. E. Rep. 1091; Cashman's Estate, 28 111. 
 App. 346; Kibler V. Huver, 10 N. Y. S. Rep. 375; Hood V. Haden, 82 
 Va. 588; Lininger's Appeal, 110 Pa. St. 398; Douglass v. Sharp, 52 Ark. 
 113; Rood v. Watson, 54 Hun 85; Lewis v. Pitman (Mo), 14 S. W. Rep. 
 52; Sanborn v. Sanborn, 62 N. H. 631; Miller's Admr. v. Potterfield 
 (Va.), 11 S. E. Rep. 486; Wittemore v. Russell, 80 Me. 297; Glover t'. 
 Stillson (Conn.), 15 Atl. Rep. 752; Gray v. Missionary Society, 2 N. Y. 
 Sup. Rep. 878; Forsythe v. Forsythe, 108 Pa. St. 129; Cresap v. Cre- 
 say, 34 W. Va. 310; Dull's Estate, 137 Pa. St. 112; Holsen v. Kockhouse, 
 83 Ky. 233; Peckham t?. Lego, 57 Conn. 553; Gaven v. Aller, 100 Mo. 
 293; Graves v. Trueblood, 96 N. C. 495. See Best v. Best (Ky.), 11 
 S. W. Rep. 600; In re Cager's Will, 111 N. Y. 343; Richardson r. Rich- 
 ardson, 80 Me. 585; McConnell v. Wilcox (Ky.), 12 S. W. Rep. 469; In 
 re Foster's Will, 76 Iowa 36. " Where a power to dispose of a life es- 
 tate is given by the will creating it, such power is only coextensive 
 with the interest of the donee, unless the contrary appears." Dickinson 
 r. Griggsville Nat. Bank, 111 111. App. 183; In re L. Hammeden. 138 
 Fed. Rep. 606. That a life tenant, with an absolute power of disposition 
 is held to have the life estate enlarged by the grant of a general power of 
 disposal, so that the fee may be conveyed, is held in many cases and 
 the reason for the recognition of such an enlargement of the estate is 
 tersely stated by the North Carolina court, in a leading case, as fol- 
 lows: "This is a power appurtenant to her life estate; and the 
 estate which may be created by its exercise will take effect out of the 
 life estate given to her, as well as out of the remainder. . A power of 
 this description is construed more favorably than a naked power given 
 to a stranger, or a power appendant, because, as its exercise will be 
 in derogation of the estate of the person to whom it is given, it is less 
 apt to be resorted to injudiciously." Troy v. Troy, 60 N. C. 623. See- 
 also, Underwood v. Cave (Mo.), 75 S. W. Rep. 455; Wright v. 
 Westbrook, 121 N. C. 156, 28 S. E. Rep. 299; White v. White, 21 
 Vt. 250; Chew v. Keller, 100 Mo. 362, 13 S. W. Rep. 395; Burford 
 r. Aldridge, 165 Mo. 419, 63 S. W. Rep. 109; Cummings v. Shaw. 108 
 598
 
 CH. XVI.] POWERS. 
 
 the power, notwithstanding the devisee's estate has been ex- 
 pressly limited for life. 36 And where the power annexed en- 
 larges the estate into a fee, it will, if not expressly qualified, 
 render any subsequent limitation void. 37 In every case the 
 limitation of the power of disposal must be clear, especially in 
 a will. For where the limitation of the estate is expressly for 
 life, the power of disposal may be limited in its operation to 
 the life estate. 38 
 
 409. Who can be donees. Any one, who is capable of 
 holding and disposing of his own property, can be the donee 
 of the power. It seems also that a purely collateral power 
 
 Mass. 159; Parks V. Robinson (N. C.), 50 S. E. Rep. 649; Clifford V. 
 Choate, 100 Mass. 340. This rule, however, is not followed by the 
 Federal Supreme Court, which consistently adheres to the doctrine that 
 a general power of disposal, by a life tenant, does not enlarge the estate 
 into a fee, or authorize the conveyance of the fee, as such a power 
 would be inconsistent with the grant of an estate for life. Smith r. 
 Bell, 6 Pet. 68, 8 L. Ed. 322 ; Brant v. Coal Co., 93 U. S. 326, 23 L. Ed. 
 927; Giles v. Little, 104 U. S. 291, 26 L. Ed. 745. 
 
 seGoodtitle v. Otway, 2 Wils. 6; Bradford v. Street, 11 Ves. 135; Doe 
 v. Lewis, 3 Adol. & Ell. 123; Wilson V. Gaines, 9 Rich. Eq. 420; Andrew 
 r. Brumfield, 32 Miss. 107; Denson v. Mitchell, 26 Ala. 360; Burke v. 
 Stiles (N. H.), 18 Atl. Rep. 657; Walker v. Pritchard, 121 111. 221; 
 Lienan V. Summerfield, 41 N. J. Eq. 381; Russell v. Eubanks, 84 Mo. 
 82 ; Morford v. Dieffenbacker, 54 Mich. 593 ; Bowen's Admr. v. Bowen's 
 Admr. (Va.), 12 S. E. Rep. 885. "A power of sale given to the 
 devisee of a life estate becomes inoperative as a power from the testatrix, 
 where he is also the devisee of the remainder, and a mortgage given 
 by him in .his individual right is valid." Spencer v. Kimball (Me. 
 1904), 57 Atl. Rep. 793, 98 Me. 499. 
 
 37 Jones v. Bacon, 68 Me. 34; s. c. 28 Am. Rep. 1; McKenzie's App., 
 41 Conn. 607, 19 Am. Rep. 525; Rona v. Meier, 47 Iowa 607, 29 Am. 
 Rep. 403. See ante, Sec. 298. Under Wis. Rev. St. (1898), Sec. 2108, 
 an absolute power of disposition, not accompanied with a trust, changes 
 the estate of the donee into a fee, as to creditors and purchasers, sub- 
 ject, to future estates limited thereon. Auer v. Brown (Wis. 1904), 
 98 N. W. Rep. 966. 
 
 ss Patty v. Goolsby, 51 Ark. 61; Douglass v. Sharp (Ark.), 12 S. W, 
 Rep. 202; Cox v. Sims, 125 Pa. St. 522; Fernbacher v. Fernbacher, 4 
 Dem. 227; . c. 17 Abb. N. C. 339; Dickinson v. Bank, 111 111. App. 183. 
 
 599
 
 410 POWERS. [PART n. 
 
 may be exercised by an infant; but this is doubtful, and it is 
 to be supposed that, where the power is to be executed by 
 means of an, instrument which an infant is not capable of mak- 
 ing, he will not be able to execute the power until he becomes 
 of age. 30 But a married woman can exercise a power as freely 
 as if she were a feme sole. This is a common mode of enabling 
 a married woman to dispose of the property secured to her 
 by marriage settlement. 40 
 
 410. By whom the power may be executed. As a general 
 proposition, only those who are named as the donees in the in-, 
 strument creating the power can execute the power. In testa- 
 mentary powers, the executor will be impliedly vested with 
 the power, if no donee is specially named or described. 41 The 
 donee cannot assign it unless he is expressly authorized, nor 
 can his personal representatives execute it unless expressly 
 named. 42 This, however, is not true of powers in trust, or 
 powers coupled with an interest, the execution of which does 
 not require the exercise of a special discretion reposed in the 
 particular donee. In the case of a power in trust, the court 
 will not allow any accident to or neglect of the trustee not 
 even his death to defeat the trust power. It will either com- 
 pel the trustee to execute it or appoint a new trustee in his 
 stead, who will have the same powers. 43 But the trustee can- 
 not delegate his power without authority. 44 It would, how- 
 
 394 Kent's Com. 324, 325; 1 Sugden on Pow. 181-211; 2 Washburn on 
 Real Prop. 652. 
 
 40 1 Sugden on Pow. 182 ; 4 Kent's Com. 325 ; Doe v. Eyre, 3 C. B. 
 578; 8. c. 5 C. B. 741; Ladd V. Ladd, 8 How. 27; Rush v. Lewis, 21 Pa. 
 St. 72; Doe v. Vincent, 1 Houst. 416-427. See ante, Sec. 348, note. 
 
 41 Officer v. Board of Home Missions, 47 Hun 372. 
 
 42 1 Sugden on Pow. 214, 215; 4 Cruise's Dig. 211; Cole v. Wade, 16 
 Ves. 27; Re Bierbaum, 40 Hun 504; Reeves v. Tappan, 21 S. C. 1. 
 
 43 2 Sugden on Pow. 158 ; Greenough v. Wells ; Hunt v. Rousmanier, 8 
 Wheat. 207; Leeds v. Wakefield, 10 Gray 517; Doe v. Ladd, 77 Ala. 223. 
 
 44 Story's Eq. Jur. 1062; Franklin V. Osgood, 14 Johns. 562, f>(i:H 
 Peter V. Beverley, 10 Pet. 565; Cole v. Wade, 16 Ves. 28 n ; 1 Sugden on 
 Pow. 214-216; Lewin on Tr. 228. "Where a power is given in a will 
 
 600
 
 CH. XVI.] POWERS. 410 
 
 ever, not be a delegation of power for the donee to direct his 
 agents to do the subordinate ministerial acts. 45 A power coup- 
 led with an interest will ordinarily, not only survive the donee, 
 but can be exercised by him, to whom the interest has been as- 
 signed, provided always the power is not expressly personal 
 to the donee. 46 Where the power is limited to several as a 
 class, such as executors, trustees, or sons, although all must 
 join in the execution, if alive, the power will survive the death 
 of one or more; but there must be at least two surviving, in 
 order to comply with the plural description of the donees. 47 
 In the case of executors, the rule is so far relaxed that a single 
 survivor may execute the power; and where the power is coup- 
 led with an interest, the power may be exercised by those who 
 qualify as executors ; it is not necessary for the others to join 
 in the execution of the power. 48 Its exercise does not, how- 
 ever, depend upon their qualification as executors; they may 
 insist upon their right to join in the execution, even though 
 they or any of them have failed to qualify or have resigned 
 
 or deed by words that clearly indicate that the donor placed special 
 confidence in the donee, so that the element of personal choice is found, 
 such power must be exercised by the person or persons thus selected, and 
 ordinarily is not transmissible." Sells v. Delgado (Mass. 1904), 70 
 N. E. Rep. 1036. 
 
 "Toder v. Herring (Miss.), 6 So. Rep. 840. 
 
 * Hunt V. Rousmanier, 8 Wheat. 203 ; Wilson V. Troup, 2 Cow. 236 ; 
 Bergen v. Bennett, 1 Games' Cas. 15; Hartley's v. Minor's App., 53 Pa. 
 St. 212; Jencks v. Alexander, 11 Paige Ch. 619; Doolittle r. Lewis, 7 
 Johns. Ch. 45. " A testamentary appointment in discharge of a moral 
 or legal obligation does not lapse merely by reason of the appointee 
 predeceasing the testator, but extends to the legal personal representa- 
 tive of the appointee." Stevens r. King, 73 Law J. Ch. 535 (1904), 2 
 Ch. 30, 90 Law T. 665, 52 Wkly Rep. 443. 
 
 47 1 Sugden on Pow. 144, 146; Story's Eq. Jur., Sees. 1061, 1062, n; 4 
 Greenl. Cruise Dig. 211 n; Co. Lit. 113, Hargrave's note 146; Franklin 
 v. Osgood, 14 Johns. 553; Peter v. Beverley, 10 Pet. 564; Montefiore v. 
 Browne, 7 H. L. Cas. 261. 
 
 484 Kent's Com. 220; Bergen v. Bennett, 1 Caines' Cas. 16; 1 Sugden 
 on Pow. 144, 146; Peter v. Beverley, 10 Pet. 564; Tainter v. Clark, 13 
 Mete. 220; Naunborf v. Schunlann, 41 N. J. Eq. 14; Vernor v. Coville, 
 44 Mich. 281; In re Bailey, 15 R. I. 60. 
 
 601
 
 411 POWERS. [PART H. 
 
 their executorships.** So, also, may the power be exercised by 
 the executors, after they have been discharged from the ad- 
 ministration of the estate. 60 But this is the case only when the 
 power is given to the executors nomination. If the power is 
 given virtute ojficii then the power can only be exercised by the 
 acting executors. 61 And although by the law the executor, ap- 
 pointed by will in one State, may not be able to exercise the 
 ordinary powers of an executor over lands situated in another 
 State, yet he may execute a testamentary power of sale when 
 directed so to do. 52 Where the power is given to several donees 
 nominatim, it indicates the repose of a personal discretion in 
 each, and the power will not survive the death of one of them. 83 
 So, also, if a power is given one or more executors by name, 
 it cannot be exercised by an administrator with the will an- 
 nexed. 04 But it is otherwise, if the power is given to the ex- 
 ecutor as such. 56 
 
 411. Mode of execution. In the execution of the power 
 the donee must observe strictly all the conditions and re- 
 strictions imposed by the donor, both as to the manner and the 
 time of execution. The donor has the right to impose what- 
 ever conditions he pleases, and however unessential they may 
 appear to be, a neglect of them would make the execution de- 
 fective. They must be strictly complied with. 56 Thus a power 
 
 "Tainter v. Clarke, 13 Mete. 220; Clark v. Tainter, 7 Gush. 567; 
 Treadwell V. Cordis, 5 Gray 341; Dunning v. Ocean Nat. Bank, 6 Lans. 
 (N. Y. ) 296. See cases cited in note 47 supra. 
 
 BOScholl v . Olmstead, 84 Ga. 603, 11 S. E. Rep. 541. 
 
 BI Yates v. Compton, 2 P. Wins. 309 ; Ross v. Barclay ; Water v. Mar- 
 gerson, 10 P. F. S. (Pa.) 39; Evans v. Chew, 21 P. F. S. 47. 
 
 52 Doolittle v. Lewis, 7 Johns. Ch. 45-48. But see Hutchins v. State 
 Bank, 12 Mete. 425. 
 
 "Co. Lit. 113, Hargrave's note 146; 4 Greenl. Cruise Dig. 211 n; 
 Story's Eq. Jur., Sees. 1061, 1062; 1 Sugden on Pow. 144-146; Peter v. 
 Beverley, 10 Pet. 563; Franklin v. Osgood, 14 Johns. 553; Tainter v. 
 Clarke, 13 Mete. 220; Cole v. Wade, 16 Ves. 27. 
 
 5< .Re Bierbaum, 40 Hun 500; Compton v. McMahan, 19 Mo. App. 490. 
 
 ssGriggs v. Voghte (N. J.), 19 Atl. Rep. 867. 
 
 56 Sugden on Pow. 221, 250, 278; Langford v. Eyre, 1 P. Wins. 740; 
 602
 
 CH. XVI.] POWERS. 412 
 
 to appoint by deed cannot be exercised by will ; but if there is 
 no restriction as to the Ipnd of instrument, it may be either by 
 deed or by will. 57 So must all other special directions be ob- 
 served, and conditions performed. 58 If the power be to sell, 
 the property can be sold only in the manner prescribed by the 
 donor, and a power of sale will not ordinarily imply a power 
 to mortgage. 59 And a power to rent or lease does not include 
 the power to sell absolutely. 00 It is customary for the donee's 
 instrument of conveyance to contain a recital of the power un- 
 der which he acts, but this recital is not competent evidence 
 of the existence of the power, and if it is questioned it must 
 be established by other testimony. 61 
 
 412. Who may be appointees. If it be a general power, 
 any one whom the donee selects may take under the power. A 
 wife may appoint the estate to her husband, and so may the 
 husband to his wife. 62 Likewise the donee may appoint 
 
 Habergham v. Vincent, 2 Ves. 231; Wright v. Wakeford, 17 Ves. 454; 
 Wright v. Barlow, 3 Maule & S. 512; Ives v. Davenport, 3 Hill 373; 
 Williams on Real Prop. 295. " An execution of a power under a will, 
 which is contrary to the limitation contained therein, is void." Ketchin 
 v. Rion (S. C. 1904), 47 S. E. Rep. 376. 
 
 "Todd v. Sawyer (Mass.), 17 N. E. Rep. 527. "A devise of testa- 
 tor's property to his wife, to will to his children ' as she thinks 
 proper,' vests in the wife a discretion in the exercise of the power con- 
 ferred, which includes the right of unequal distribution." Allder V. 
 Jones (Md. 1903), 56 Atl. Rep. 487. 
 
 "Ladd v. Ladd, 8 How. 30-40; Austin v. Oakes, 117 N. Y. 577; Rose 
 v. Hatch, 55 Hun 457 ; Jennert v. Houser, 4 Ohio C. C. 353 ; Valentine 
 v. Wyson (Ind.), 23 N. E. Rep. 1076. 
 
 1 Sugden on Pow. 513; 4 Kent's Com. 331; Bloomer v. Waldron, 3 
 Hill 361; Leavitt f. Pell, 25 N. Y. 474; Ives v. Davenport, 3 Hill 373; 
 Price f. Courtney, 87 Mo. 387, 56 Am. Rep. 453. 
 
 o Roe v. Vingut, 117 N. Y. 204. 
 
 i Hershy v. Berman, 45 Ark. 309. " If a deed can have no efficacy ex- 
 cept by reference to a power, and the deed has been executed substan- 
 tially as provided in the instrument creating the power, the estate will 
 pass, although the power is not referred to in the deed." Kirkman f. 
 Wadsworth (N. C. 1905), 49 S. E. Rep. 962. 
 
 2 Sugden on Pow. 182 ; 4 Kent's Com. 325 ; Doe v. Eyre, 3 C. B. 578 ; 
 
 603
 
 413 POWERS. [PART n. 
 
 himself. 03 And if the donee appoints to A. to the use of B. 
 the Statute of Uses will execute the use in A., leaving the use 
 in B. unexecuted, it being a use upon a use. 64 But this rule 
 would not apply to powers which operated under the Statute 
 of Wills. If it be a special power, it can be exercised only in 
 favor of the special objects named. Thus a power of appoint- 
 ment to children will not support an appointment to grand- 
 children, unless in some unusual cases, strongly impregnated 
 with circumstances, such as the non-existence of children at 
 the time when the power was created, and the impossibility of 
 other children being subsequently born, which clearly show an 
 intention to refer to grandchildren under the name of chil- 
 dren. 65 But the term issue is generally capable of embracing 
 all descendants of every generation. 66 
 
 413. Execution by implication. In order to insure a 
 valid execution, the power should be expressly referred to in 
 the instrument of execution ; but this is not necessary if it ap- 
 pears in any way, upon the face of the instrument, or from 
 the facts of the case, to have been the intention of the donee 
 to exercise the power. 67 And the courts have of late years so 
 far relaxed the rule as to construe the instrument to be, by nec- 
 essary intendment, a good execution of the power, if it cannot 
 operate in any other way, notwithstanding the deed or will 
 purports to dispose only of the individual property of the 
 
 . c. 5 C. B. 741; Ladd V. Ladd, 8 How. 27; Bradish V. Gibbs, 3 Johns. 
 Ch. 523 ; 2 Sugden on Pow. 24. 
 
 632 Washburn on Real Prop. 660; Williams on Real Prop. 295, n. 1. 
 
 e* 1 Sugden on Pow. 229 ; 2 Prest. Abst. 248 ; 2 Washburn on Real 
 Prop. 613. 
 
 652 Sugden on Pow. 253; 4 Kent's Com. 345; Tud. Ld. Cas. 306; 
 Wythe v. Thurlston, Ambl. 555; Horwitz v. Norris, 49 Pa. St. 211. See 
 Allder v. Jones (Md. 1903), 56 Atl. Rep. 487; Biggins v. Lambert, 203 
 111. 625, 73 N. E. Rep. 371. 
 
 66 Wythe v. Thurlston, Ambl. 555; Freeman v. Parsley, 3 Ves. 421; 
 Drake v. Drake, 56 Hun 390. 
 
 67 1 Sugden on Pow. 232 ; 4 Kent's Com. 334 ; Story's Eq. Jur., Sc. 
 1062 a. 
 
 604
 
 CH. XVI.] POWERS. 414 
 
 donee. 68 A specific reference to the property subject to the 
 power will be sufficient in the case of a collateral or naked 
 power ; but where the power is appendant or in gross, if there 
 be no express reference to the power, only the legal estate, to 
 which it is attached, will pass. The capacity of the instrument 
 to operate upon the estate of the donee negatives any implied 
 or presumed intention to exercise the power. And where the 
 power is not coupled with an interest, if the donee has no 
 property which he could dispose of by means of the instru- 
 ment executed, it will be a good execution of the power, though 
 neither the power nor the property was referred to. 69 
 
 414. Excessive execution. To what extent an excessive 
 execution will affect the validity of the appointment depends 
 upon the ability to separate the good part from the bad part. 
 If the excess can be separated and clearly distinguished from 
 what would have been a valid execution, the latter will be 
 sustained, and only the excess declared void. But if such a 
 separation cannot be made without destroying the evidence of 
 the donee's intention to exercise the power in the manner in 
 which he could, the whole will be avoided, and a failure of ex- 
 ecution will be decreed. 70 Thus, if the appointment be made 
 to a number of persons, some of whom can take and others 
 cannot, it will be good as to the former, at least, in the case of 
 a general power. If the power be special, it would be good 
 as to those who can take, provided the partial execution of the 
 
 es Doe v. Vincent, 1 Houst. 416, 427; Taylor v. Eastman, 92 N. C. 601. 
 See Kirkman v. Wadsworth (N. C. 1905), 49 S. E. Rep. 962. 
 
 4 Kent's Com. 335; Amory v. Meredith, 7 Allen 397; Blagge v. 
 Miles, 1 Story 426; 1 Sugden on Pow. 432; 4 Cruise Dig. 212; Co. Lit.. 
 271 b, Butler's note 231; 2 Washburn on Real Prop. 612; Doe r. Rooke, 
 B. & C. 720; Bepper's Will, 1 Pars. Eq. Cas. 440; Patterson r. Wilson, 
 04 Md. 193; Mut. Life Ins. Co. v. Shipman, 119 N. Y. 324; Hood V. 
 Haden, 82 Va. 588; Lee V. Simpson, 134 U. S. 572; Kirkman t. Wads- 
 worth (N. C. 1905), 49 S. E. Rep. 962. 
 
 ToTud. Ld. Cas. 306; 2 Sugd. Pow. 55, 62, 75; 4 Cruise Dig. 205; 
 Crompe v. Barrow, 4 VPS. 681; Funk V. Eggleston, 92 111. 515, 34 Am. 
 Rep. 136; Graham r. Whitridge (Md. 1904), 87 Atl. Rep. 609. 
 
 605
 
 415 POWERS. [PART H. 
 
 power in this manner does not affect the lawful rights of the 
 others. 71 So also if the donee appoints a larger sura or a 
 larger estate than the power authorizes, the execution will be 
 good within the limits of the power; or if he annexes to the 
 appointment conditions which are prohibited or not authorized 
 by the terms of the power, the illegal conditions will be void, 
 and the appointee will take an absolute estate. 72 In this con- 
 nection it may be stated that the cy pres doctrine of con- 
 struction applies to powers executed by will, as it does to all 
 testamentary dispositions. If an appointment by will be void 
 in part when literally construed, and there appears on the 
 face of the will a general intent, which would be a good execu- 
 tion of the power were it not for the special .intent manifested 
 by the manner in which he executes it, the general intent will 
 prevail, and the appointment will be held to be good. Thus, 
 if the appointment be to an unborn son for life, with re- 
 mainder to his (the son's) unborn sons in tail, since the lat- 
 ter limitation is void as against the rule of perpetuity, the 
 court would construe the appointment an estate tail in the first 
 taker, instead of a life estate, there appearing to have been a 
 general intent to that effect. 73 
 
 415. Successive execution. The appointment of a less 
 estate than what may be created under the power will be 
 good, unless there is an express restriction against a partial 
 execution. 7 * And as long as the power is not exhausted it may 
 be exercised successively, at different times over different parts 
 
 " Sadler t?. Pratt, 5 Sim. 632. See cases cited in note 58. 
 
 72 Parker v. Parker, Gibb. Eq. 168; 2 Sugd. Pow. 85; Tud. Ld. Cas. 
 317-319; Alexander v. Alexander, 2 Ves. Sr. 640; 4 Cruise Dig. 202; 
 Campbell V. Leach, Ambl. 740. 
 
 "3 2 Sugden on Pow. 60, 61; 2 Washburn on Real Prop. 666; Robinson 
 i'. Hardcastle, 2 T. R. 241; Leeds v. Wakefield, 10 Gray, 514, 519. See, 
 In re Risnig (Eng. 1904), 73 Law. J. Ch. 455, 1 Ch. 533, 90 Law. T. 
 504; Risnig V. Risnig, idem. 
 
 7*4 Cruise Dig. 205; 2 Washburn on Real Prop. 621-688; Butler V. 
 Heustis, 68 111. 594, 18 Am. Rep. 589. 
 606
 
 CH. XVI.] POWERS. 417 
 
 of the property, or over different estates in the same tract of 
 land, whether the power is one of appointment or of revoca- 
 tion. And where it is intended that the power shall not be 
 subsequently exercised, it is the custom to release it, where that 
 is possible. 75 
 
 416. Revocation of appointment. The donee cannot re- 
 voke his appointment, unless he expressly reserves the power of 
 revocation in the instrument of appointment, or it is granted 
 to him in the instrument of creation. And if the power may 
 be exercised by deed or by will, the revocation of an appoint- 
 ment by deed will revive the power to appoint by will. 76 
 
 417. Defective execution How and when cured. The 
 general rule is that an execution, defective because of a fail- 
 ure to conform to the directions of the donor, will be nugatory, 
 and the appointment absolutely void. And if the appointment 
 is a mere gift to the appointee, and the power is general and 
 free from the character of a trust, the slightest defect will in- 
 validate the execution. 77 But if the power is special, or the ex- 
 ecution is a trust and a peremptory duty upon the donee, or if 
 the donee has received a valuable consideration for the appoint- 
 ment, equity will correct or make good the defective execution 
 by ordering a re-execution, 78 provided there has been a sub- 
 
 T5 1 Sugden on Pow. 342; 2 Id. 43-45; 4 Cruise Dig. 200, 201; Dig- 
 ges's Case, 1 Rep. 174; Co. Lit. 271 b, Butler's note 231; Woolston f. 
 Woolston, 1 W. Bl. 281. 
 
 7 2 Sugden on Pow. 243; Co. Lit. 27 1 b, Butler's note 231; Saunders 
 v. Evans, 8 H. L. Cas. 721. 
 
 7*2 Sugden on Pow. 98; Tud. Ld. Cas. 317; Inglis v. McCook (N. J. 
 Ch. 1904), 59 Atl. Rep. 630. 
 
 7 Hughes v. Wells, 9 Hare 749 ; Shannon t?. Bradstreet, 1 Sch. & Lef . 
 52; Reid v. Shergold, 10 Ves. 370; Pollard v. Greenvil, 1 Chan. Cas. 10; 
 Wilkes v. Holmes, 9 Mod. 485; Thorp v. McCullum, 1 Oilman 614; 
 Hout V. Hout, 20 Ohio St. 119; Schenck V. Ellingwood, 3 Edw. Ch. 175; 
 Bruce V. Bruce, L. R. 11 Eq. 371; Pepper's Will, 1 Pars. Eq. 436, 446; 
 Huss v. Morris, 63 Pa. St. 367; Hervey v. Hervey, 1 Atk. 561; In re 
 Dyke's Estate, L. R. 7 Eq. 337; Dowell f. Dew, 2 Y. & C. 345; Ellison 
 
 607
 
 418 POWERS. [PART n. 
 
 stantial compliance with the condition of execution, and the 
 defect relates to the formalities of execution, such as the num- 
 ber of attesting witnesses, the technical words of limitations, 
 or conveyance, etc. 79 But there is no relief against the 
 defective execution of a statutory power. The remedy for 
 relief is confined to powers created by act of the owner of the 
 property. 90 
 
 418. Non-execution. But if the donee has failed alto- 
 gether to execute the power, or disregarded the material condi- 
 tions imposed by the donor upon his execution, equity will not 
 interfere to compel an execution, 81 unless the power be a trust, 
 the execution of which is mandatory. In such a ease equity 
 will not permit any accident or neglect of the donee to defeat 
 the trust, and thus deprive the beneficiaries of their rights un- 
 der the power. All mandatory powers, whether general or 
 special, are trusts, and courts of equity will execute such 
 powers, even if the donee has failed to exercise the power, and 
 died. But there can never be any interference by the courts 
 with discretionary powers, if the donees have refused to ex- 
 ercise them. 82 
 
 v. Ellison, 6 Ves. 656; Watt v. Watt, 3 Ves. 244; Tudor v. Anson, 2 
 Ves. Sen. 582. 
 
 TO Story Eq. Jur., Sees. 169-175; 2 Sugden on Pow. 88, et seq.; 4 
 Cruise Dig. 222, et seq.; Cotter V. Layer, 2 P. Wms. 622; Toilet V. Tol- 
 le*, 2 P. Wms. 489; Schenck v. Ellenwood, 3 Edw. Ch. 175; Long V. 
 Hewitt, 44 Iowa 363; Bradish V. Gibbs, 3 Johns. Ch. 523, 550; Barr v. 
 Hatch, 3 Ohio 527. 
 
 so Gridley's Heirs V. Phillips, 5 Kan. 349; Kearney r. Vaughn, 50 Mo. 
 284; Smith v. Bowes, 38 Md. 463; Earl of Darington v. Pulteney, Cowp. 
 260 ; and see Stewart V. Stokes, 33 Ala. 494. 
 
 si Howard V. Carpenter, 11 Md. 259; Mitchell v. Benson, 29 Ala. 327; 
 Bull v. Vardy, 1 Ves. 270; Toilet v. Toilet, 2 P. Wms. 489; 1 Eq. Lead. 
 Cas. 365, and notes (4 Am. ed.) ; Arundell v. Phillpot, 2 Vern. 69. 
 
 sz Story Eq. Jur., Sees. 169-175, 1062; 2 Sugden on Pow. 88, et seq.; 
 4 Cruise Dig. 222, et seq.; Gorin v. Gordon, 38 Miss. 214; Neves v. Scott, 
 9 How. 196-213; Sedgwick v. Laflin, 10 Allen 432; 1 Sugden on Pow. 
 158 ; Withers v. Yeadon, 1 Rich. Eq. 324, 329 ; Brown v. Higgs, 8 Ves. 
 
 608
 
 CH. XVI.] POWERS. 419 
 
 419. Rules of perpetuity applied to powers. The rule 
 against perpetuity finds application both to the limitations of 
 the power and to the estates created under the power. If the 
 power can be exercised at a time beyond that within which all 
 limitations must take effect in possession, viz. : a life or lives in 
 being and twenty-one years thereafter, the power is void. It 
 is, therefore, generally necessary to place a limitation upon 
 the time within which the power may be exercised. A power 
 to one and his heirs, without express or implied limitation, 
 would be void, at least so far as the heirs are concerned. 83 The 
 greatest difficulty has been experienced in applying the rule 
 against perpetuity to the estates appointed under the power. 
 If the power is special, and the appointment is limited to a per- 
 son or persons, none of whom can take, from being too remote 
 under the rule, the power is absolutely void. But if the power 
 permits an appointment among a class, some of whom can 
 take, and a discretion is left in the donee as to which individ- 
 uals of the class shall be appointed, the power will be void as 
 to those who cannot take. The possibility of an illegal ap- 
 pointment will not invalidate the power, if it is in the end 
 properly exercised by an appointment to lawful persons. 84 In 
 determining the validity of an appointment under a special 
 power in respect to perpetuity, the appointment must be 
 viewed in its relation to, and as a part of, the original instru- 
 ment creating the power, and must be considered in the light 
 of the circumstances surrounding the estate and the parties 
 thereto, when the original instrument was executed, if the 
 power be created by deed, and at the death of the testator, if 
 by will. Thus a power to/ appoint among grandchildren can- 
 not be exercised in favor of such grandchildren, whose parents 
 
 561, 574. See, Biggins v. Lambert, 115 111. App. 576, 213 111. 625, 73 N. 
 E. Rep. 371; Allder v. Jones (Md. 1903), 56 Atl. Rep. 487. 
 
 3 Bristow v. Warde, 2 Ves. 350 ; Ware v. Polhill, 1 1 Ves. 283. 
 
 1 Sugden on Pow. 471-475; 2 Washburn on Real Prop. 672-675; Co. 
 Lit. 271 b, Butler's note 231; Gilbert's Uses, 160 n; Graham v. Whit- 
 ridge (Md. 1904), 57 Atl. Rep. 609. 
 
 39 609
 
 420 POWERS. [PART n. 
 
 were not in being at the time that the power was created. 85 
 But if it be a general power, it is so much like an estate in 
 fee, in respect to the restriction against alienation, that an 
 appointment will be good, if at the time when the power was 
 exercised it did not offend the doctrine of perpetuity. The 
 validity of an appointment under a general power is deter- 
 mined by its condition when made, and not considered as a 
 part of the instrument in which the power was created. An 
 appointment under such a power to unborn children of par- 
 ents who are in esse at the time of the execution, but unborn 
 at the time of creation of the power, would be good. The 
 restriction upon alienation only began when the appointment 
 was made. 86 
 
 420. Rights of donee's creditors in the power. The power 
 not being an estate in the land, if the donee's creditors have 
 any interest in the same or in the estate created under the 
 power, it can only be an equitable claim. The donee's credit- 
 ors have no legal rights in the power. 87 Where the power is 
 general and coupled with an interest, a sale of the interest will 
 prevent the subsequent exercise of the power. 88 In no case can 
 the donee 's creditors acquire an interest in, or prevent the exe- 
 cution of a special power. It is also definitely settled that 
 where the donee has not exercised his general power, there is 
 no interest in the donee to which the rights of creditors may at- 
 
 ss 2 Washburn on Real Prop. 671 ; Co. Lit. 271 b, Butler's note 231 ; 1 
 Sugden on Pow. 471-475; 2 Prest. Abst. 165, 166; Dana v. Murray, 122 
 N. Y. 604 ; In re Christie, 59 Hun 153. 
 
 862 Washburn on Real Prop. 671; Fearne's Exec. Dev. 5, Powell's. 
 note; 1 Sugden on Pow. 516; Mifflin's Appeal, 121 Pa. St. 205; Apple- 
 ton's Appeal, 136 Pa. St. 354. See, In re Rising, 73 Law. J. Ch. 455, 1 
 Ch. 533 ? 90 Law. T. 504. 
 
 87 Blake v. Irwin, 3 Kelly 345; Johnson r. Cushing, 15 N. H. 298; 
 Townsend V. Windham, 2 Ves. Jr. 3; Covendale f. Aldrich, 19 Pick. 39 L 
 
 ssHobbs V. Hobbs, 15 Ohio St. 419. See ante, Sec. 405. See Linn V. 
 Downing, 216 111. 64, 74 N. E. Rep. 729. But see, for power coupled 
 with an interest, under Ky. St. (1903), Sec. 1681, as to creditors' 
 rights, Johnson's Trustee v. Johnson, 79 S. W. Rep. 293. 
 610
 
 CH. XVI.] POWERS. 421 
 
 tach. 89 Nor can the creditors, through their assignee in bank- 
 ruptcy, under the bankrupt law, execute the power for their 
 benefit. 90 But it has been held that where the appoint- 
 ment is made under the power to a voluntary appointee, the 
 creditors may levy upon the estate in the appointee's hands; 
 and that the appointee always takes the estate subject to the 
 payment of the donee 's debts, if the donee might have exercised 
 the power in favor of his creditors. 91 Since the creditors have 
 no interest in the power itself, and cannot execute it, or com- 
 pel its execution in their favor ; and since the donee never had 
 any other interest in the property except the power, and the es- 
 tate of the appointee passed to him directly from the donor, it 
 is difficult to understand by what course of reasoning the posi- 
 tion of these two courts can be sustained. 
 
 421. The rights of creditors of the beneficiaries. As a 
 matter of course, if a special power of trust is exercised, the 
 judgment-creditors may levy upon the beneficiary's share in 
 the proceeds of sale. But they cannot compel the donee to exe- 
 cute the power. 92 And if the legal title descended to the bene- 
 ficiary, subject to a power of sale, whatever interest the bene- 
 ficiary's creditors and grantees acquire in the estate will be 
 defeated by the subsequent exercise of the power, but they will 
 in equity attach at once to the beneficiary's share in the pro- 
 ceeds of sale. 93 
 
 8 Tallmadge v. Sill, 21 Barb. 34; Strong v. Gregory, 19 Ala. 146. See 
 Thorpe v. Goodall, 17 Ves. Jr. 338, 460; Holmes v. Coghill, 12 Ves. 206; 
 Jenny v. Andrews, 6 Madd. 264. 
 
 90 Jones' Assignee v. Clifton, U. S. Cir. Ct. Dist. of Kentucky ( 1878 ) , 
 7 dent. L. J. 89. 
 
 i Johnson v. Gushing, 15 N. H. 298 ; Tallmadge v. Sill, 21 Barb. 34. 
 
 2 Chew's Exrs. v. Chew, 28 Pa. St. 17. See Johnson's Trustee v. 
 Johnson (Ky. 1904), 79 S. W. Rep. 293. 
 
 93 Allison v. Wilson v. Wilson's Exrs., 13 Serg. & R. 330; Reed v. 
 Underbill, 12 Barb. 113. See, for rights of beneficiary's creditors, under 
 the Wisconsin statute (R. S. 1898, Sec. 2108), Auer v. Brown, 98 N. W. 
 Rep. 966. And see, for power granted, subject to testator's debts, Ash- 
 man r. Harriman (N^H. 1904), 58 Atl. Rep. 501. 
 
 611
 
 CHAPTER XVII. 
 
 INCORPOREAL HEREDITAMENTS. 
 
 SECTION I. Rights of Common. 
 
 II. Easements. 
 
 III. Franchises. 
 
 IV. Rents. 
 
 SECTION 422. Incorporeal hereditaments defined. 
 
 423. Kinds of incorporeal hereditaments. 
 
 422. Incorporeal hereditaments defined. An incorporeal 
 hereditament is a right of an intangible nature which descends 
 to the heir like corporeal hereditaments. It is rather a right 
 in, or issuing out of, a corporeal hereditament than a right to 
 or of such kind of property. The enjoyemnt and exercise of 
 the right produces substantial results, but the results are to 
 be distinguished from the right, and do not constitute the in- 
 corporeal hereditament. The Roman jura in re aliena com- 
 prised a very large class of those rights, which are in our law 
 comprehended under the term incorporeal hereditaments. 
 
 423. Kinds of incorporeal hereditaments. Blackstone 
 mentions nine principal classes of incorporeal hereditaments, 
 viz.: (1) Commons; (2) Easements; (3) Rents; (4) Advow- 
 sons; (5) Corodies; (6) Annuities; (7) Franchises; (8) Of- 
 fices; (9) Dignities. Of these, Commons, Easements, Rents 
 and Franchises pertain to this country. The others do not 
 now, if they ever did, exist here, and can very well be omitted. 
 In presenting this subject the discussion will be confined to I. 
 Rights of Commons ; II. Easements, III. Franchises ; and IV. 
 Rents. 
 
 612 *
 
 SECTION I. 
 
 RIGHTS OF COMMON. 
 
 SECTION 424. Definition. 
 
 425. Kinds of rights of common. 
 
 426. Commons appendant and appurtenant. 
 
 424. Definition. A right of common is a right which one 
 may have in another 's land, to take from it certain substantial 
 products, which constitute a part of the realty because of their 
 connection therewith. An easement is also a right in, or is- 
 suing out of, another's land, and constitutes a burden upon it, 
 as will be seen in the next section ; but it only relates to such 
 modes of enjoyment which may be had without drawing from 
 it anything which, in contemplation of law, is a part of the 
 land. A right of common is known also by the Norman French 
 term profit a prendre, a right to take something from the land. 
 As will be seen, the term right of common has lost its signifi- 
 cance in this country. An easement may prevent the owner 
 of adjacent land from building so near the boundary as to ex- 
 clude the light and air from one's residence, or it may con- 
 sist in the right to keep a stream free from obstruction while 
 flowing through the adjoining land above; but light, air and 
 water are not a part of the realty, and, therefore, one cannot 
 have a right of common in them. Another distinction is that 
 a right of common does not impose any obligation upon the 
 owner of the land to maintain a supply of the thing taken, 
 while an easement may contain such an obligation. Such an 
 obligation may be the very essence of the easement. 1 
 
 i 2 Bla. Com. 32 ; Huntington v. Asher, 96 N. Y. 604. See also Post 
 v. Pearsall, 22 Wend. (N. Y.) 425; Hill v. Lord, 48 Me. 83; Hun" v. 
 McCauley, 53 Pa. St. 206. 
 
 613
 
 426 RIGHTS OF COMMON. [PAF.T li. 
 
 425. Kinds of rights of common. Tfiere are four impor- 
 tant kinds of common, viz. : Common of pasture, piscary, tur- 
 bary and estovers. Common of pasture is a right of pastur- 
 ing cattle upon the land of another. Common of piscary is 
 the right to fish in the streams which pass through another's 
 land. Common of turbary consisted in the right to dig turf 
 or peat for use as fuel. Of the same character would be the 
 right to dig coal for the same purpose. Common of estovers 
 was a right of the same nature, being a right to take whatever 
 wood is necessary for use on the farm, for the purpose of fuel, 
 repairing the ploughs and other agricultural implements, or 
 the hedges and fences. According to the use to which the 
 wood was put, they were respectively called house-bote, plough- 
 bote and cart-bote, and hay-bote or hedge-bote. The enjoy- 
 ment of these rights of estovers was limited to a reasonable 
 degree, and the wood could be used only as far as it was nec- 
 essary for the purposes of the farm. 2 
 
 426. Commons appendant and appurtenant. At common 
 law rights of common were divided into two classes, common 
 appendant, and common appurtenant. Common appendant 
 was the more usual kind. It arose out of the peculiar condi- 
 tion of the English tenantry, and more especially out of the 
 manor system of holding lands. When the lord of the manor 
 rented his arable land to his tenant, he gave with this land 
 these rights of common, so that the tenant would be able to ob- 
 tain everything necessary for the successful conduct of the 
 farm. Thus the tenant had a right to pasture his cattle upon 
 the waste land of his lord, to take the necessary wood from 
 the forests, etc. 3 Common appendant does not now exist in 
 this country. Whatever commons are created here are of the 
 class known at common law as common appurtenant, or in 
 gross. They rest upon grant, express or implied. When im- 
 plied, the right is acquired by prescription, or under the Stat- 
 
 22 Bla. Com. 32-35. 
 82 Bla. Com. 33. 
 614
 
 CH. XVII.]' RIGHTS OP COMMON. 426 
 
 lite of Limitations. Common appurtenant and common ap- 
 pendant were annexed to some land held by the person enjoy- 
 ing the right, while common in gross was to a man and his 
 heirs, independent of any land he may hold. 4 Inasmuch as 
 commons are now created in the same manner as easements, 
 they receive almost the same construction. The subject, there- 
 fore, needs no special treatment beyond what has been al- 
 ready stated. The principal American cases are cited below. 5 
 
 * 2 Bla. Com. 33, 34. 
 
 sKnowles v. Nicholls, 2 Curt. 571; Donnell.v. Clark, 19 Me. 174; 
 Thomas v. Mansfield, 13 Pick. 240; Perkins v. Perkins, 44 Barb. 134; 
 Van Rensselaer v. Radcliffe, 10 Wend. 639; Livingstone v. Ten Broeck, 
 16 Johns. 14; Funkhouser v, Langkopf, 26 Mo. 45; Edwards v. McClung, 
 39 Ohio St. 41. 
 
 615
 
 SECTION II. 
 
 EASEMENTS. 
 
 SECTION 427. What are easements. 
 
 428. When merger takes effect. 
 
 429. How acquired. 
 
 430. Easements by express grant. 
 
 431. Implied grant. 
 
 432. Equitable easements. 
 
 433. Easements implied from covenant. 
 
 434. Rights of action in defense of easement. 
 
 435. How easements may be lost or extinguished. 
 
 436. Kinds of easements. 
 
 437. Right of way. 
 
 438. A private way. 
 
 439. Ways of necessity. 
 
 440. Who must repair the way. 
 
 441. Public or highways. 
 
 442. Light and air. 
 
 443. How acquired. 
 
 444. Right of water. 
 
 445. Percolations and swamps. 
 
 446. Artificial water courses. 
 
 447. Easements in water courses and surface drainage. 
 
 448. Right of lateral and subjacent support. 
 
 449. Implied grant of lateral support. 
 
 450. Party walls. 
 
 451. Double ownership in buildings Subjacent support. 
 
 452. Legalized nuisances. 
 
 427. What are easements. As has been explained in dis- 
 tinguishing between commons and easements, the latter are 
 rights of enjoyment in, or issuing out of, another 's land, which 
 restrict or limit the owner's right of enjoyment either affirm- 
 atively, by giving another person a right to use the land for 
 certain purposes, as, for example, a right of passing over the 
 land, or negatively, by restraining the owner from using it in 
 616
 
 CH. XVII.] EASEMENTS. " 428 
 
 
 
 a particular manner, such as the erection of buildings so ~ i :ar 
 to the boundary line as to exclude the light and air from tlie 
 residence of an adjoining proprietor. 6 A technical easement 
 can only exist as appurtenant to an estate in lands, although 
 there may be an incorporeal hereditament in the nature of an 
 easement, which exists and is owned independently of any es- 
 tate in the land. 7 Two estates are thereby brought into relation 
 with each other, and the existence of both is necessary to the 
 maintenance of an easement. They are called the dominant 
 and servient estates. The dominant estate is the one enjoy- 
 ing the easement, and to which it is attached ; the servient es- 
 tate is the one upon which the easement is imposed. As ap- 
 purtenant to the dominant estate, the easement passes with it 
 into whosesoever hands the land may come. The easement 
 cannot be severed from it. 8 
 
 428. When merger takes effect. When the dominant es- 
 tate falls into the possession of the owner of the servient es- 
 tate, the easement is extinguished, if the two estates are co- 
 equal and co-extensive, since no man can have an easement in 
 his own land.* If the title to either of the estates proves de- 
 fective, the easement is only suspended while the two estates 
 
 Ritger v. Parker, 8 Gush. (Mass.) 145; Gale on Easements, p. 5; 
 Oliver t>. Hook, 47 Md. 301; Scriver v. Smith, 100 N. Y. 471; Big Mt. 
 ImpVt. Co.'s App., 64 Pa. St. 361; Goddard on Eas. 70, 71, 72, 84; 
 Barlow v. Rhodes, 1 O. & M. 448 ; Thomson V. Waterlow, L. R. 6 Eq. 
 Cas. 36; Fetters V. Humphreys, 19 N. J. Eq. 471; Washburn on Eas. 39; 
 Worthington v. Grimson, 105 E. C. L. 616; Pearson v. Johnson, 68 N. 
 Y. 62; s. c. 23 Am. Rep. 149. 
 
 TKnecken r. Voltz, 110 111. 264; Manderbach v. Bethany Orphans' 
 Home, 1 Cent. Rep. (Pa.) 402; Hills v. Miller, 3 Paige (N. Y.) 254. 
 
 Hills v. Miller, 3 Paige (N. Y.) 254; Oliver v. Hook, 47 Md. 301; 
 Meek v. Breckenridge, 29 Ohio St. 642; Murphy v. Welch, 128 Mass. 
 489; Dark v. Johnston, 55 Pa. St. 361; Parsons v. Johnson, 68 N. Y. 62; 
 Stuyvesant v. Woodruff, 1 Zab. (N. J.) 133. 
 
 Atwater ff. Bodfish, 11 Gray 150; McAllister v. Devane, 76 N. Car. 
 57; Miller v. Lapham, 44 Vt. 416; Denton v. Leddell, 23 N. J. Eq. 64; 
 McTavish v. Carroll, 7 Md. 362. 
 
 617
 
 429 EASEMENTS. [PART II. 
 
 are in the possession of the one owner. 10 So if the dominant 
 estate which is transferred to the owner of the servient estate, 
 is less in point of duration than the servient, the easement will 
 only be suspended during the union of the two estates and will 
 revive upon their separation. 11 And it may be stated generally 
 that, wherever the extinguishment of an easement will operate 
 as an injury to some one having rights in the same, equity will 
 limit the effect of the union of the estates to suspension during 
 such union, and the easement will revive, in favor of the parties 
 having rights in it, at the termination of the union. But if 
 the two estates are of the same quality and duration, when 
 they come into the possession of the same owner, the easement 
 is completely extinguished, and is not revived by a subsequent 
 conveyance of the dominant estate, except by express agree- 
 ment. 12 
 
 429. How acquired. Easements are acquired by grant, 
 express or implied, or by prescription, which pre-supposes a 
 grant. The doctrine of prescription as known at the com- 
 mon law is no longer in practical operation. 13 It has been su- 
 perseded by Statutes of Limitation, which fix a time in which 
 a right may be acquired by adverse possession or enjoyment. 
 The subject of title by prescription or limitation will be 
 treated more fully in subsequent pages. These Statutes of 
 Limitations do not in express terms refer to easements, but 
 courts have generally applied to easements their provisions 
 concerning rights in real property. It is, therefore, a general 
 rule that a right of easement is acquired by prescription 
 
 10 Tyler v. Hammond, 11 Pick. 193. 
 
 11 Grant v. Chase, 17 Mass. 443; Pearce v. McClenaghan, 5 Rich. 178. 
 "Thomson v. Waterlow, L. R. 6 Eq. Gas. 36; Barlow v. Rhodes, 1 C. 
 
 & M. 448; Longendyke v. Anderson, 101 N. Y. 625; Parsons v. Johnson, 
 68 N. Y. 62. But see, Bullock v. Phelps (R. I. 1905), 27 R. I. 164, 61 
 Atl. Rep. 589. 
 
 13 " To acquire an easement in the land of another under the common 
 law, the use must have been continued from a time when the memory 
 of man ran not to the contrary." Wasmund v. Harm (Wash. 1904), 78 
 Pac. Rep. 777. 
 618
 
 CH. XVII.] LASEMEN^S. 429 
 
 within the time prescribed by the Statute of Limitation for 
 the recovery of lands. 14 But since the application of the 
 statute to the case of easements rests upon analogy, the statu- 
 tory period has been held to raise only a legal presumption 
 that a grant has been made, and does not operate as a legal 
 bar. The presumption can be rebutted by evidence, showing 
 that there had been no grant. 15 But the rule is not uniform, 
 there being cases which hold that it is a conclusive presump- 
 tion. 16 It is probable that this may now be considered as 
 the generally prevailing law. 17 But no prescriptive right can 
 be claimed where the long use was had under a license from 
 the owner of the land, 18 or where the use was constantly 
 interrupted. 19 Nor can there be any easement by prescrip- 
 tion in favor of the public. 20 The public may, however, ac- 
 
 i Campbell v. Wilson, 3 East 294; Richard v. Williams, 7 Wheat. 59; 
 Stearns V. Jones, 12 Allen 582; Carlisle v. Cooper, 19 N. J. Eq. 256; 
 Nichols v. Wentworth, 100 N. Y. 455; Wallace v. United Presb. Church, 
 111 Pa. St. 164; Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. Rep. 
 632; Smith v. Putnam, 62 N. H. 369; McKinzie v. Elliott (111.), 24 N. 
 E. Rep. 965. 
 
 isTiflkham v. Arnold, 3 Me. 120; Parker v. Foote, 19 Wend. 309; 
 Sherwood v. Burr, 4 Day 244. See Tredwell v. Inslee, 120 N. Y. 458. 
 24 N. E. Rep. 651. 
 
 "Beasley v. Shaw, 6 East 208; Wright v. Howard, 1 Sim. & S. 190; 
 Cornett v. Phudy, 80 Va. 710. 
 
 "Tyler t?. Wilkinson, 4 Mason (U. S.) 397; Corning v. Gould, 16 
 Wend. (N. Y.) 531; Carlisle v. Cooper, 19 N. J. Eq. 256; Poison t?. 
 Ingram, 22 S. Car. 541; Benlow v. Robbins, 71 N. C. 338; Nicholls v. 
 Wentworth, 100 N. Y. 455; Gordon v. Taunton, 126 Mass. 349; Com. v. 
 Low, 3 Pick. (Mass.) 408; Sargent t;. Ballard, 9 Pick. (Masa.) 251. 
 See Hay t'. Callman (N. Y. 1905), 73 N. E. Rep. 1125. 
 
 is Eckerson v. Crippen, 38 Hun 419. "Where the owner of a saloon 
 adjoining a hotel had a permissive license to use the rotunda as a 
 passageway to the saloon, such license could not ripen into an easement." 
 Belser v. Moore (Ark. 1904), 84 S. W. Rep. 219. 
 
 i Kirschner v. The W. & A. R. Co., 67 Ga. 760; Lehigh Valley R. Co. 
 r. McFarlan, 30 N. J. Eq. 180; Eckerson v. Crippen, 39 Hun (N. Y.) 
 419. 
 
 20 Curtis v. Keesler, 14 Barb. (N. Y.) 511; Pearsall v. Post, 20 Wend. 
 (X. Y.) 121; *. c. 22 Wend. (N. Y.) 440. Compare Gordon r. Taunton. 
 126 Mass. 349. 
 
 619
 
 431 EASEMENTS. [PART II. 
 
 quire such a right by dedication, and without formal con- 
 veyance. 21 
 
 430. An easement by express grant. Is created by deed, 
 containing an express reservation of the right. It cannot 
 be created by parol. 22 It need not be reserved in the same 
 deed which creates or conveys the dominant estate; it may 
 be granted in a separate deed. 23 It may, also, be created 
 in a deed conveying the servient estate by reservation to the 
 grantor. 24 For the creation of an easement by express grant 
 upon one estate in favor of another, there need not be any 
 prior unity of title or estate in the two parcels of land. 
 There need not be any previous connection whatever between 
 the two estates or their owners. 25 
 
 431. Implied grants. An easement is created by implied 
 grant where the easement is so essential to the enjoyment 
 of the estate granted, that it is necessary to be implied to 
 prevent the conveyance from operating as an injury to the 
 grantee. Thus, if a man conveys a parcel of land, sur- 
 rounded on all sides by his own land, so that the grantee 
 cannot get to the land conveyed, except by passing over 
 the other lands of the grantor, the law implies that a right 
 
 21 Trustees of Watertown v. Cowen, 4 Paige (N. Y.) 510; see also 
 Scott t?. Cheatham, 12 Heisk. (Tenn.) 713; Stevenson v. Chattanooga, 
 20 Fed. Rep. 586. 
 
 22 Brown on Statute of Frauds, Sec. 232; Bryan v. Whistler, 8 B. & 
 C. 288; Knight v. Dyer, 57 Me. 174; Taylor v. Millard, 118 N. Y. 244, 
 23 N. E. Rep. 376; Robinson V. Thrailkill, 110 Ind. 117; see also Fuhr 
 r. Dean, 26 Mo. 116; Brooks v. Curtis, 4 Lans. (N. Y.) 283; Miller v. 
 A. & S. R. Co., 6 Hill (N. Y.) 61. 
 
 23 Gerrard v. Cook, 2 Bos. & P. N. R. 109 ; Ashcroft v. E. R. Co., 126 
 Mass. 196; Hankey v. Clark, 110 Mass. 262; Corbin v. Dale, 57 Mo. 297; 
 Richardson 0. Clements, 89 Pa. St. 503. 
 
 24 Pettee v. Hawkes, 13 Pick. 323. 
 
 2Gibert v. Peteler, 39 N. Y. 165. See, Bernos v. Coulpa (La. 1905), 
 38 So. Rep. 438; Bole v. Todd (Ga. 1905). 50 S. E. Rep. 990; Anthony 
 V. Kennard Bldg. Co. (Mo. 1905), 87 S. W. Rep. 921. 
 620
 
 CH. XVII.] EASEMENTS. 432 
 
 of way over such lands was granted in the deed. 26 What 
 shall be considered such a necessity as will raise an ease- 
 ment by implication depends upon the facts of each partic- 
 ular case. It is a well established rule that the necessity 
 need not be absolute. If the enjoyment of the estate 
 granted^ cannot be complete without the easement, except at 
 an unusual expense, or inconvenience, the easement will be 
 implied. 2T The enjoyment of the land without the easement 
 need not be absolutely impossible. Thus, in the case of a 
 right of way, it is not necessary that the land should be 
 entirely surrounded, in order to create by implication an 
 easement of way over the grantor's lands; it will be suffi- 
 cient if the land granted is to such an extent surrounded, 
 that the grantee can get to it only with great difficulty and 
 inconvenience. 
 
 432. Equitable easements. Corresponding to, and form- 
 ing a part of, the subject of implied easements, is the doc- 
 trine of equitable easements. At law it is impossible for 
 an,- easement to exist between two estates owned by the same 
 person. If the two parcels had had separate owners, upon 
 the union of them in the one owner, as we have seen, the 
 easement would at least be suspended during the continuance 
 of such union and revive upon their separation. The ease- 
 
 Pomfret v. Ricord, 1 Saund. 322; Proctor v. Hodgson, 10 Exch. 624. 
 See post, Sec. 439. 
 
 "O'Rorke V. Smith, 11 R. I. 259; a. c. 23 Am. Rep. 440; Francies's 
 Appeal, 96 Pa. St. 200; Nichols t;. Luce, 24 Pick. (Mass.) 102; Barnes 
 . Lloyd, 112 Mass. 224; Hollenbeck v. McDonald, 112 Mass. 247; Buss 
 9. Dyer, 125 Mass. 287; Wentworth v. Philpot, 60 N. H. 193; Burns v. 
 Gallagher, 62 Md. 462; see also, Mitchell v. Seipel, 63 Md. 251; Randall 
 v. Mclaughlin, 10 Allen (Mass.) 366. " Where land sold out of a tract 
 is surrounded on three sides by land of private individuals, the sale 
 carries with it, by presumption of law, a right of way over the remain- 
 ing land of 'the grantor to a public highway." Brown v. Kemp (Ore. 
 1905), 81 Pac. Rep. 236. " An execution sale of part of a tract of land 
 without an exit carries with it a right of way of necessity over the re- 
 mainder." Daniron V. Damron (Ky. 1905), 84 S. W. Rep. 747. 
 
 621
 
 432 EASEMENTS. [PART II. 
 
 ment would revive only when the dominant and servient 
 estates were of unequal value in. the matter of duration. 28 
 But notwithstanding the fact that at law there can be no 
 easement in favor of one parcel imposed upon another, both 
 being held by the same owner, yet in equity such a relation 
 may exist. If the owner* of two parcels so uses them as to 
 make one servient to the other, as, for example, in the 
 construction of a drain carrying waste water from one 
 estate oveiythe other, in equity an easement will be imposed 
 upon one lot in favor of the other, which, upon the severance 
 of ownership by alienation, assumes the character of a legal 
 easement, 29 if its continuance is essential to the enjoyment 
 of the estate which is sold. 30 It seems also that the servitude 
 will be an open and notorious incumbrance, particularly 
 where the servient estate is conveyed away. 31 The same 
 principle has been applied to a case where the owner of two 
 lots conveys them to different grantees, and so divides them 
 that the wall of the house conveyed to one of them falls 
 within the boundary line of the other, held to create an 
 equitable easement in favor of the owner of the house 32 
 Especially does an easement arise when the quasi dominant 
 estate is granted to another. If the quasi servient estate 
 has been conveyed, it is a question of some doubt whether 
 there is reserved to the grantor by implication an easement 
 
 as See ante, Sec. 428. 
 
 2 Pyer v. Carter, 40 Eng. L. & Eq. 410; Guy V. Brown, 5 Moore 644; 
 Johnson v. Jordan, 2 Mete. 234 ; Smith V. Blanpied, 62 N. H. 652 ; Smith 
 v. Smith, 62 N. H. 429; Crosland v. Rogers (S. C.), 10 S. E. Rep. 874; 
 Lampman v. Milks, 21 N. Y. 505; Huttemeier v. Albro, 18 N. Y. 48; 
 Lansing v. Wiswall, 5 Denio (N. Y.) 213. 
 
 so Smith V. Blanpied, 62 N. H. 652; Smith v. Smith, 62 N. H. 429; 
 Crosland v. Rogers (S. C.), 10 S. E. Rep. 874. See Jackson v. Eli (D. 
 C. 1904), 23 App. D. C. 122; Hess v. Kennedy (N. J. Ch. 1904), 61 Atl. 
 Rep. 464. 
 
 siTredwell v. Insley, 120 N. Y. 458, 24 N. E. Rep. 651; Fetters v. 
 Humphreys, 19 N. J. Eq. 471; Grant v. Chase, 17 Mass. 443. 
 
 32 Reiners v. Young, 38 Hun 335 ; John Hancock, etc., v. Patterson, 
 103 Ind. 582, 53 Am. Rep. 550. 
 622
 
 CH. XVII.] EASEMENTS. 433 
 
 to maintain the drain or other burden upon the 'granted 
 estate. The authorities, English and American, are at vari- 
 ance on this question. In this country the better opinion 
 is that the rule .would be the same as in the case of the con- 
 veyance of the quasi dominant estate, 33 especially if it was 
 strictly necessary to the enjoyment of the dominant estate, 
 and the existence of the easement is apparent or known to 
 the grantee. 3 * 
 
 433. Easement implied from covenant. Somewhat sim- 
 ilar are the cases where, in the conveyance of several parcels 
 of land to different grantees, the grantor imposes a restric- 
 tion upon the use and mode of enjoyment of the land so 
 granted, which creates a mutual benefit to the owners of the 
 several parcels. Even though the restriction be in the form 
 of a covenant, equity will construe it to have the binding 
 force of an easement, and will sustain an action for its 
 enforcement in favor of any one of the owners. They are 
 covenants running with the land, and can be enforced by 
 any one in whose possession any one of the parcels should 
 fall. 35 Such would be the case where, in granting several 
 
 as Warren v. Blake, 54 Me. 289 ; Johnson v. Jordan, 2 Mete. 234 ; 
 Treadwell v. Inslee, 120 N. Y. 458. 
 
 84 Scott I?. Bentel, 23 Gratt. (Va.) 1- Hardy v. McCullough, 23 Gratt. 
 (Va.) 251; Griffiths V. Morrison, 106 N. Y. 165; Outerbridge v. Phelps, 
 13 Abb. N. C. (N. Y.) 117; Morrison v. King, 62 111. 30; Life Ins. Co. 
 v. Patterson, 103 Ind. 582 ; s. c. 53 Am. Rep. 550 ; Robinson v. Tlirailkill, 
 110 Ind. 117; Cave v. Crafts, 53 Cal. 135; Sanderlin v. Baxter, 76 Va. 
 299 ; . c. 44 Am. Rep. 165 ; Galloway v. Bonesteel, 65 Wis. 79 ; Petland 
 v. Keep, 41 Wis. 490; Turner v. Thompson, 58 Ga. 268; U. S. v. Ap- 
 pleton, 1 Sumn. (U. S.) 492; Hazard v. Robinson, 3 Mason (U. S.) 272; 
 Alexander v. Tolleston Club, 110 111. 65; Cihak v. Klekr, 117 111. 643. 
 See Keith v. Twen. Cent. Club, 73 Law. J. Ch. 545, 90 Law. T. 775 (Eng. 
 1904). 
 
 85 Martin v. Martin (Kan.), 25 Pac. Rep. 418; Clement v. Burtis (N. 
 Y.), 24 N. E. Rep. 1013; Nye v. Hoyle, 120 N. Y. 195, 24 N. E. Rep. 1; 
 Graves v. Deterling, 120 N. Y. 447; Pittaburg, etc., R. R. Co., v. Keno, 
 22 111. App. 470; s. c. 123 111. 273, 14 N. E. Rep. 195; Midland Ry. Co. 
 v. Fisher (Ind.), 24 N. E. Rep. 756, 758. See Hess v. Kennedy (N. J. 
 Ch. 1905), 61 Atl. Rep. 464. 
 
 623
 
 434 EASEMENTS. [PART II. 
 
 parcels of land, the conveyances contain covenants that any 
 buildings thereafter erected upon any one of them shall be 
 set back from the street a certain distance. An injunction 
 would be granted at the suit of either of the owners of the 
 several pieces of property restraining another from violating 
 the covenant. 86 But if the covenant as to the use of the 
 land is imposed upon only one of the lots, and omitted in the 
 conveyance of the others, the covenant is held to be thereby 
 abandoned even as to the grantee in whose deed the covenant 
 was inserted. 81 
 
 434. Rights of action in defense of easements. The ac- 
 tions are of two kinds, (1) by injunction 88 restraining some 
 
 SB Whatman v. Gibson, 9 Sim. 196; Harrison V. Good, L. R. 11 Eq. 
 338; Brewer v. Marshall, 19 N. J. Eq. 543; Winfield v. Henning, 21 N. 
 J. Eq. 188; St. Andrews Church Appeal, 67 Pa. St. 518; Pingree V. 
 McDuffie, 56 N. H. 306; Burns V. Gallagher, 62 Md. 462; Viall v. Car- 
 penter, 14 Gray (Mass.) 126; Day v. Walden, 46 Mich. 575; Brown v. 
 Burkenmeyer, 9 Dana (Ky.) 159; Lennig v. Ocean City Assn., 41 N. J. 
 Eq. 606; s. c. 56 Am. Rep. See also, White's Bank of Buffalo v. Nichols, 
 64 N. Y. 65; Foster v. City of Buffalo, 64 How. Pr. (N. Y.) 127; in the 
 Matter of Opening Eleventh Ave., 81 N. Y. 436; Baxter V. Arnold, 114 
 Mass. 577; s. c. 11 Am. Rep. 335; Bagnall v. Davies, 140 Mass. 76; 
 Atty.-Gen. v. Williams, 140 Mass. 329, 54 Am. Rep. 468; Payson v. 
 Burnham, 141 Mass. 547; Hamlin V. Werner, 144 Mass. 396; Winnepe- 
 saukee, etc., Assn. v. Gordon, 63 N. H. 505; Webb v. Rohbins, 77 Ala. 
 176; Hull v. C. B. & Q. R. R. Co., 65 Iowa 713; Coudert V. Sayre (N. J.), 
 19 Atl. Rep. 190; Graves v. Detenling, 120 N. Y. 447, 24 N. E. Rep. 655; 
 Page v. Murray (N. J.), 19 Atl. Rep. 11; Mackenzie V. Childers, 43 Ch. 
 Div. 265; Foster V. Foster, 62 N. H. 46; Avery v. N. Y. Cent. & C. R. 
 R. Co. (N. Y.), 24 N. E. Rep. 20, 24; Smith V, Bradley (Mass.), 28 N. 
 E. Rep. 14. In th'e same manner a covenant to build and maintain a 
 party wall, if the wall has been constructed, will operate as an ease- 
 ment. Richardson v. Tobey, 121 Mass. 457, 23 Am. Rep. 283. But an 
 executory agreement or covenant to build a party wall cannot operate 
 as an easement, since such a covenant does not run with the land, and 
 is binding only upon the covenantor. Cole v. Hughes, 54 N. Y. 444, 13 
 Am. Rep. 611. 
 
 37 Duncan v. Central Pas. R, R. Co. (Ky.), 4 S. W. Rep. 228; Stuart 
 v. Diplock, 23 Ch. Div. 343. 
 
 ss Rogerson v. Shepherd, 33 W. Va. 307, 10 8. E. Rep. 632 ; Herman v. 
 624 

 
 CH. XVII.] EASEMENTS. 435 
 
 future injury or impairment of the easement, or enforcing 
 the performance of the conditions of such easement, and 
 (2) an action for damages for the objection to, or in- 
 terference with, the easement which has already happened. 89 
 And in order to sustain the action for damages, no actual 
 damage need be proven. It would be an injuria sine dam-no, 
 or wrong without damage, which is always actionable. But 
 the owner of the servient estate may make any use of it, 
 which does not materially interfere with the exercise of the 
 easement. 40 
 
 435. How easements may be lost or extinguished. This 
 may occur (1) by acts of the owner of the dominant 
 estates, or (2) by acts of the owner of the servient estate. 
 An easement may be released by deed of the owner of the 
 dominant estate, or it may be lost by abandonment. It 
 cannot be released by parol agreement," unless the agreement 
 is carried into execution by some affirmative act, as the 
 creation of a new easement in the place of the old one, so 
 
 Roberts, 119 N. Y. 37, 23 N. E. Rep. 442; Swift t?. Coker, 83 Ga. 789, 
 10 S. E. Rep. 442; Frey v. Lowden, 70 Cal. 550, 11 Pac. Rep. 838. See 
 Wasmund v. Harm (Wash. 1904), 78 Pac. Rep. 777. 
 
 39 2 Washburn on Real Prop. 339 ; Tud. Ld. Cas. 129 ; Bane f. Bean, G3 
 Mich. 652, 30 N. W. Rep. 373; Autenreith v. St. Louis, etc., R. R. Co., 
 36 Mo. App. 254; Ladd v. City of Boston (Mass.), 24 N. E. Rep. 858. 
 " A mandatory injunction for the removal of a building obstructing 
 ancient lights should not be granted in an ordinary case where damages 
 would be an adequate remedy." Colls tf. Home & Colonial Stores (Eng. 
 1904), 73 Law J. Ch. 484 (1904), App. Cas. 179, 90 Law. T. 687, 53 
 Wkly. Rep. 30, 20 Times Law R. 475. 
 
 Patterson v. Phila., etc., R. R. Co., 8 Pa. Co. Ct. 186; Phillips r. 
 Dressier, 122 Ind. 414, 24 N. E. Rep. 226; Ames v. Shaw, 19 Atl. Rep. 
 831, 82 Me. 379; Joslin v. Sones (Iowa), 45 N. W. Rep. 917; Grafton 
 v. Moir, 9 N. Y. S. 3; Spalding v. Bemiss (Ky.), 1 S. W. Rep. 468; .Mc- 
 Kenzie v. Elliott (111.), 24 N. E. Rep. 965; Tyler v. Cooper, 47 Hun 94; 
 Smith v. Holloway (Ind.), 24 N. E. Rep. 886; Edgar v. Stevenson, 70 
 Cal. 286, 11 Pac. Rep. 704. See Hay v. Coleman (N. Y. 1905), 73 N. E. 
 Rep. 1125, on measure of damages. 
 
 40 625
 
 435 EASEMENTS. [PART II. 
 
 that by non-user the first has been lost. 41 Mere non-user, 
 even though for twenty years, will not of itself extinguish 
 the easement unless there has been adverse possession. 42 It 
 must be accompanied with the express or implied intention 
 of abandonment, and the owner of the servient estate, act- 
 ing upon the intention of abandonment and the actual non- 
 user, must have incurred expenses upon his own estate. 43 
 The three elements, non-user, intention to abandon and 
 damage to the owner of the servient estate, must concur in 
 order to extinguish the easement. In cases of easements 
 created by prescription the last element is not considered 
 essential. 44 The easement may also be destroyed when the 
 owner of the dominant estate gives a license to the owner 
 of the servient estate to perform or do certain acts upon the 
 servient estate, the performance of which will effectually 
 prevent the enjoyment of the easement. The execution of 
 the license will destroy or extinguish the easement, since 
 
 41 Liggjns v. Inge, 7 Bing. 682 ; Ward v. Ward, 7 Exch. 838 ; Shaffer 
 V. State ^ank, 37 La. Ann. 242 ; Snell V. Leavitt, 39 Hun 227. 
 
 Veghte v. R. W. P. Co., 4 C. E. Green (N. J.) 142; see also Homer 
 v. Stillwell, 35 N. J. L. 307; Pratt v. Sweetser, 68 Me. 344; Eddy v. 
 Chace, 140 Mass. 471. 
 
 Eddy v. Chace, 140 Mass. 471; Poison v. Ingram, 22 S. C. 541; 
 Tyler v. Cooper, 47 Hun 94; Whitney V. Wheeler Cotton Mills (Mass.), 
 24 N. E. Rep. 774; Vogler v. Geiss, 51 Md. 407. See also Pope v. O'Hara, 
 48 N. Y. 446; Poison V. Ingram, 22 s. c. 541; Hamilton V. Farrar, 128 
 Mass. 492 ; King v. Murphy, 140 Mass. 254 ; Central Wharf, etc., Crop. 
 v. Proprietors of India Wharf, 123 Mass. 567; Johnston v. Hyde, 32 N. 
 J. 446; see also Hulme v. Shreve, 3 Green's Ch. (N. J.) 116; Merritt v. 
 Parker, Coxe (N. J.) 460; Jewett v. Whitney, 43 Me. 242. "Abandon- 
 ment is a matter of intention, and consists in the giving up of a thing 
 absolutely without reference to any particular person or purpose. There 
 can be no abandonment to a definite person." Norman v. Corbley 
 (Mont. 1905), 79 Pac. Rep. 1059. 
 
 <* Jewett v. Jewett, 16 Barb. (N. Y.) 150; see also Pope v. O'Hara, 48 
 N. Y. 446; Eddy v. Chace, 140 Mass. 471; Bronson v. Coffin, 108 Mass. 
 175; Knecken v. Voltz, 110 111. 264; Day v. Walden, 46 Mich. 575; 
 Steere v. Tiffany, 13 R. I. 568; Louisville, etc., R. Co. v. Covington, 2 
 Bush (Ky.) 526; Wilder v. St. Paul, 12 Minn. 192. 
 626
 
 CH. XVII.] EASEMENTS. 436 
 
 the license is irrevocable after execution. 45 Finally, any 
 actions on the part df the owner of the dominant estate, 
 which increase the burden upon the servient estate and which 
 so materially change the easement, as that it cannot be 
 restored to its original condition, will operate in a discharge 
 of the servient estate from the burden of the easement. 
 But if the increase in the burden can be separated from the 
 original easement, the latter will still remain. 46 In the same 
 way as easements may be acquired by prescription, so may 
 they also be lost or extinguished. 47 This subject is similar 
 in its character, and is allied to the subject of loss by aban- 
 donment. 
 
 436. Kinds of easements. The easements most commonly 
 known are right of way, light and air, water, support, and 
 party walls. Many other servitudes may be imposed upon 
 the land, but a discussion of the classes just mentioned will 
 be sufficient to illustrate the general principles. 
 
 Winter v. Brockwell, 8 East 308; Liggins v. Inge, 7 Bing. 682; 
 McConnell v. Am. Bronze, etc., Co., 41 N. J. Eq. 447 ; Morse v. Copeland, 
 2 Gray (Mass.) 302. Compare Dyer v. Sandford, 9 Mete. (Mass.) 395. 
 
 Luttrell's Case, 4 Rep. 87; Saunders v. Newman, 1 B. & Aid. 258; 
 Garrett v. Sharp, 3 A. & E. 325; Blanchard v. Bridges, 4 A. & E. 176; 
 Carpenter v. Graber, 66 Tex. 465; 1 S. W. Rep. 178; Hicox v. Chicago, 
 etc., R. R. Co. (Mich.), 44 N. W. Rep. 143; Prescott v. White, 21 Pick. 
 (Mass.) 341; Cary v. Daniels, 8 Mete. (Mass.) 466; Thompson v. Uglow, 
 4 Ore. 369; Blaisdell t;. Stephens, 14 Nev. 17; Hall v. McCaughey, 51 Pa. 
 St. 43; Kaler v. Beaman, 49 Me. 207; Schaffer v. State Bank, 37 La. 
 Ann. 242; Jaqui v. Johnson, 27 N. J. Eq. 552; Darlington v. Painter, 7 
 Barr (Pa.) 473; Stevenson v. Stewart, 7 Phila. 293; Evangelical, etc., 
 Home v. Buffalo Hydraulic Assn., 64 N. Y. 563; Roberts v. Roberts, 55 
 N. Y. 275; Wynkoop v. Burger, 12 Johns. (N. Y.) 222; Stiles V. Hooker, 
 7 Cow. (N. Y.) 266; Huson t?. Young, 4 Lans. (N. Y.) 63. 
 
 47 Clarke v. Gaffeney, 116 111. 362; Veghte v. R. W. P. Co., 4 C. E. 
 Green (N. J.) 142; see also Homer v. Stillwell, 35 N. J. L. 307; Pratt 
 v. Sweetser, 68 Me. 344; Eddy v. Chance, 140 Mass. 471. "An agreement 
 surrendering a right of way by necessity is an instrument required to 
 te recorded, under the statute providing for the record of every convey- 
 ance of lands, tenements, or hereditaments." Dahlberg r. Haeberle (N. 
 J. Sup. 1904), 09 Atl. Rep. 92. 
 
 627
 
 438 EASEMENTS. [l ART II. 
 
 437. Eight of way. Rights of this character are divided 
 into private, where the right is in favor of one or more 
 private individuals, and is appurtenant to an estate owned 
 by them, and public, where it is enjoyed by the public gener- 
 ally. They are easements imposed upon another's land, 
 authorizing certain persons or the public, as the case may be, 
 to pass over it, in pursuit of specific or general objects. 
 
 438. A private way. May be c. sated by express grant, 
 or it may be implied from the circumstances surrounding the 
 estate granted (these are called ways of necessity), or it 
 may further be acquired by prescription. A way acquired 
 for a particular mode of use will not be extended so as to 
 include the right to use it in some other manner. Thus, if 
 the right be limited to a foot-path, it cannot be used as a 
 carriage-way or horse-way. Such an extension of the right 
 would be an act of trespass, and render the owner of the 
 dominant estate liable for damages to the owner of the 
 servient estate. This would be the case, even though 
 the burden upon the servient estate has not been ma- 
 terially increased. 48 Neither can the way be used for 
 the benefit of any other estate but the one to which the 
 easement is appurtenant. 49 A right of way may be granted 
 subject to a condition and limitation, and the right in such 
 
 48 Brunton v. Hall, 1 Gale & D. 207 ; Cowling v. Higginson, 4 Mees. & 
 W. 245; Ballard v. Tyson, 1 Taunt. 279; Allan V. Gourme, 11 A. & E. 
 759; French v. Marstin, 24 N. H. 440, 32 N. H. 316; Kirkham v. Sharp, 
 
 1 Wharf. 323. But a general right of way will be inferred from evidence 
 that the way has been used in every manner necessary for the full en- 
 joyment of the dominant estate. Parks V. Bishop, 120 Mass. 340, 21 
 Am. Rep. 519. For cases on the implied right of way on surface, as 
 incident to right to mine, see White, Mines & Min. Rem., Sec. 219, p. 
 293, and cases cited; Chartiers Coal Co. V. Mellors, 152 Pa. St. 286. 
 
 Colchester v. Roberts, 4 Mees. & W. 769 ; Williams v. James, L. R. 
 
 2 C. B. 580; Davenport v. Lamson, 21 Pick. 72; French v. Marstin, 24 
 N. H. 440, 32 N. H. 316; Hayes V. De Vity, 141 Mass. 233; Brightman 
 v. Chaping, 1 Atl. Rep. 412, 15 R. I. 166; Reise v. Enos (Wis.), 45 N. 
 W. Rep. 414. 
 
 628
 
 CH. XVII.] EASEMENTS. 439 
 
 cases cannot be claimed after the breach of the condition 
 or happening of the limitation. 50 Where the way is ac- 
 quired by express or implied grant, the owner of the servient 
 estate has the right to lay out the way in whatever manner 
 will be most convenient to him, and will at the same time 
 secure to the owner of the dominant estate the full enjoyment 
 of the easement. But if the owner of the servient estate 
 refuses to do this, the owner of the dominant estate may exer- 
 cise the power. Once the way has been laid out, it cannot 
 be changed by either party without the consent of the 
 other. 51 Private ways may be acquired also by prescrip- 
 tion. 52 
 
 439. Ways of necessity. A way of necessity exists where 
 the land granted is completely environed by land of the 
 grantor, or partially by his land, and the land of strangers. 
 The law implies from these facts that a right of way over the 
 grantor's land was granted to the grantee, as appurtenant 
 to the estate. 53 Inasmuch as the implication is raised from 
 the existence of a necessity, the easement expires with the 
 cessation of the necessity, as, for example, when a new way 
 is acquired. 54 When such a necessity exists as will create 
 by implication a right of way, is a question of fact, deter- 
 mined by the circumstances of each particular case. Mere 
 inconvenience will not constitute such necessity. It must 
 be a strict necessity; but excessive expense in procuring 
 another way would make it a case of strict necessity. 55 Rear 
 
 BO Hall v. Armstrong, 53 Conn. 554. 
 
 BI Henning v. Burnett, 8 Exch. 187; Northern v. Hurley, 1 E. & B. 
 665 ; Holmes v. Seeley, 19 Wend. 507 ; French v. Williams, 82 Va. 462. 
 
 sz Gay v. Boston & Albany R. R. Co., 141 Mass. 407. 
 
 68 Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. Rep. 632 ; Kripp . 
 Curtis, 71 Cal. 62, 11 Pac. Rep. 879. But see, as to necessity that 
 land sold should be surrounded by grantor's land. Wills v. Reid (Miss. 
 1905), 38 So. Rep. 793. 
 
 B4pettingill v. Porter, 8 Allen 9; Baker v. Crosby, 9 Gray 421; Vlial 
 r. Carpenter, 14 Gray 126; Thomas v. Bertram, 4 Bush 317; Brown v. 
 Berry, 6 Coldw. (Tenn.) 98. 
 
 Bspettingill v. Porter, 8 Allen 1; OTlorke v. Smith, 11 R. I. 259, 23 
 
 629
 
 441 EASEMENTS. [PART II. 
 
 entrances to city lots cannot be claimed as ways of necessity. 56 
 If a way of necessity is implied for any purpose, it may be 
 used for any and all purposes for which private ways are 
 generally adapted. 67 
 
 440. Who must repair the way. In the absence of an 
 express agreement, the grantee of the right of way must 
 keep the way in repair; and if he fails to do so, he has no 
 right to use other adjacent land of the servient estate because 
 the way has become impassable. But the obligation to repair 
 may by covenant be imposed upon the owner of the servient 
 estate. In such a case, if the latter violates the agreement, 
 the grantee of the way may, if it is necessary, pass over 
 the adjoining land of the servient estate. 68 
 
 441. Public or highways. Here no reference is made to 
 such highways where the fee simple title to the land is in 
 the State or municipal corporation. In such cases there can 
 be no question in respect to easements. This section relates 
 to such cases where the land, over which the highway ex- 
 tends, belongs to the owners of the contiguous land, and a 
 right of way over it is enjoyed by the public. 59 Where it is 
 
 Am. Rep. 440; Bartlett v. Prescott, 41 N. H. 493; Barr V. Flynn, 70 Mo. 
 383; Fischer v. Laack (Wis.), 45 N. W. Rep. 104; Morse v. Benson 
 (Mass.), 24 N. E. Rep. 675; Pearson V. Allen (Mass.), 23 N. E. Rep. 
 731; Nat. Exch. Bank v. Cunningham, 46 Ohio St. 5?5, 22 N. E. Rep ; 
 924; Murphy v. Lee, 144 Mass. 371; Bell v. Todd, 51 Mich. 21; Smyles 
 v. Hastings, 22 N. Y. 217; approving 24 Barb. (N. Y.) 44; Pratt v. B. 
 C. R. Co., 19 Hun (N. Y.) 30; Foster v. Buffalo, 64 How. Pr. (N. Y.) 
 127; Wills v. Reid (Miss. 1905), 38 So. Rep. 793. 
 
 so Fischer v. Laack (Wis.), 45 N. W. Rep. 104; Smith v. Griffin 
 (Colo.), 23 Pac. Rep. 905. 
 
 67 Whittier v. Winkley, 62 N. H. 338. 
 
 as Pomfret V. Ricord, 1 Saund. 323 ; Bullard v. Harrison, 4 M. & S. 
 387 ; Jones v. Percival, 5 Pick. 485 ; Hamilton v. White, 5 N. Y. 9. 
 
 5 The right of the public to the use of a highway, where the soil or 
 bed belongs to the adjoining owners, is not strictly an easement; it is an 
 incorporeal hereditament in the nature of an easement. Since the sub- 
 ject of highways is not to be treated at any length, it is discussed in 
 
 630
 
 CH. XVII.], EASEMENTS. 441 
 
 doubtful whether the grantor intended to convey an easement 
 or a fee simple title to the land, the presumption is held to 
 be in favor of the grant of an easement. 60 Such highways 
 are established either by dedication by the owners of the 
 land, or by appropriation by the State, under the right of 
 eminent domain. In the case of dedication no formal acts 
 are necessary to the creation of the way. Any act or acts 
 such as conveyances of lots bounding on such streets, platting 
 and recording a map, in which the streets are laid out, and 
 the like, which show a clear intention to dedicate the land to 
 the public use will be sufficient. 61 The conveyance of lands 
 for the purpose of a highway may always be subjected to 
 conditions, restrictions and limitations as to use, which can 
 only be removed by the exercise of the right of eminent 
 domain. 62 A highway may also be created by custom, as 
 from long use by the public, although there had been no 
 dedication by the owner. 63 To make the dedication complete 
 
 this connection to avoid the necessity of a separate subdivision of this 
 chapter. 
 
 o N. Y. & N. E. R. R. Co. v. City of Providence (R. I.), 19 Atl. Rep. 
 759. 
 
 si Pope v. Town of Union, 18 N. J. Eq. 282 ; Hawley v. City of Balti- 
 more, 33 M. D. 270; Buchanan v. Curtis, 25 Wis. 99, 3 Am. Rep. 23; 
 Point Pleasant Land Co. V. Cranmer, 40 N. J. Eq. 81; Re Pearl St., Ill 
 Pa. St. 565; Harrison v. Augusta Factory, 73 Ga. 447; Brooks v. 
 Topeka, 34 Kan. 277; Shea 17. Ottumwa, 66 Iowa 39; State v. Schwin, 65 
 Wis. 207; Dorman v. Bates Mfg. Co., 82 Me. 438; Johnson v. Shelter 
 Island Grove, etc., Co., 47 Hun 374; In re Ladue, 118 N. Y. 213, 23 N. 
 E. Rep. 465. The evidence of an intention to dedicate the land, must be 
 clear and manifest. Manchester v. Hoag, 66 Iowa 649; Robinson tz. 
 Coffin, 2 Wash. 251. See Mott v. Ens (N. Y. 1904), 90 N. Y. S. 608, 
 97 App. Div. 586; Providence Steamboat Co. v. Fall River (Mass. 1904), 
 72 N. E. Rep. 338. 
 
 2 Odneal v. City of Sherman, 77 Texas 182. 
 
 Holt v. Sargent, 15 Gray 97; Compton's Petition, 41 N. H. 197; 
 State t. Van Derveer, 57 N. J. L. 259; South Branch R. R. Co. v. 
 Parker, 41 N. J. Eq. 489; Strong v. Makeever, 102 Ind. 578; Too! v. 
 Decatur, 19 111. App. 204; Hart v. Red Cedar, 63 Wis. 634; Fritsche t?. 
 Fritsche (Wis.), 45 N. W. Rep. 1088. But see Torres v. Falgoust, 37 
 La. An. 497 ; Tucker v. Conrad, 103 Ind. 349, where it is held that mere 
 
 631
 
 442 EASEMENTS. [PART II. 
 
 and binding upon the public, there must be an acceptance 
 of the same. But continued use of the land in conformity 
 with the dedication will be sufficient evidence of acceptance. 
 A formal acceptance is not necessary. * A dedication to 
 public use as a highway or other thoroughfare is not affected 
 by an attempted appropriation of the land to other public 
 uses in the exercise of the right of eminent domain. The 
 defective condemnation may be set aside, but the dedication 
 as a highway survives, and the original owner cannot main- 
 tain ejectment for the land. 66 
 
 442. Light and air. There may, like a right of way, be 
 an easement in the light and air coming from over the 
 land of an adjacent owner, which would prevent its obstruc- 
 tion by any erections upon the adjoining land near the bound- 
 ary line. Thus, the owner of a house may acquire an 
 easement in the adjoining land, to permit the free passage 
 of light and air through his windows. This easement, in 
 its more important features, resembles the right of way, 
 which has been already discussed. It will not, therefore, 
 be necessary to present in detail the law upon the subject. 
 Like the right of way, the owner of the dominant estate can- 
 not do anything which will increase the burden upon the 
 servient estate. Any act, such as closing windows and open- 
 ing new ones, increasing the size of the windows, or removing 
 the house, which operates in changing or increasing the 
 burden upon the servient estate, will destroy the easement. 68 
 
 Tiser of the land as a highway, without some evidence of an adverse 
 claim, will not give the public any vested rights in the land. Stuart V. 
 Frink, 94 N. C. 487, 55 Am. Rep. 618; State v. Horn, 35 Kan. 717. 
 
 * Muzzey V. Davis, 54 Me. 361; Cole v. Sprowle, 35 Me. 161; Pope V. 
 Town of Union, 18 N. J. Eq. 282 ; Manderschid v. Dubuque, 29 Iowa 73 ; 
 Barteau V. West, 23 Wis. 416; Buchanan v. Curtis, 25 Wis. 99, 3 Am. 
 Rep. 23; Brown V. Kansas City, etc., R. R. Co., 20 Mo. App. 427. 
 
 es Moses V. St. Louis Sectional Dock Co., 84 Mo. 242. 
 
 oeLuttrell's Case, 4 Rep. 87; Tud. Ld. Gas. 132, 133; Cherrington V. 
 Abney Mill, 2 Vern. 646 ; Moore v. Rawson, 3 B. & C. 332 ; Blanchard v. 
 Bridges, 4 A. & E. 176. 
 632
 
 CH. XVH.]^ EASEMENTS. 443 
 
 % 
 
 443. How acquired. In England an easement of light 
 and air may be, and is generally, acquired by prescription or 
 long user. An uninterrupted enjoyment of twenty years 
 will be sufficient to create the easement. It is necessary, 
 however, that there should be a building, for the benefit of 
 which the easement is acquired. 67 There can be no such ease- 
 ment in favor of an open lot. The extent of the ease- 
 ment, therefore, depends upon the amount of enjoyment 
 derived from it during the period of prescription. 68 During 
 the period of prescription the right is inchoate, and may be 
 defeated by the erection on the adjacent land of any struc- 
 ture which will exclude the light and air, and interrupt the 
 adverse enjoyment. The owner of the adjoining land cannot 
 be prevented from imposing such barriers to the acquisition 
 of the easement. 69 In this country the right to acquire the 
 easement by prescription has not met with general recogni- 
 tion. On the contrary, the tendency is to deny the right 
 altogether. At the present day the courts of New Jersey, 
 Illinois, and Louisiana are the only ones which still uphold 
 this doctrine, 70 while it is repudiated by the other courts. 71 
 In some of the States it is held that, where one person owns 
 two contiguous lots, and sells one of them, which has a build- 
 
 <" Calls v. Home & Col. Stores (Eng. 1904), 73 Law J. Ch. 484, 90 
 Law T. 687, 53 Wkly. Rep. 30, 20 Times L. Rep. 475. 
 
 es Martin v. Goble, 1 Comp. 322; Moore f. Rawson, 3 B. & C. 332; 
 Clark v. Clark, L. R. 1 Ch. 16; Robers v. McCord, 1 Mo. & Rob. 230. 
 
 Smith v. Kendrick, 7 C. B. 515, 565; Moore t>. Rawson, 3 B. & C. 
 332; Corcoran v. Nailor, 6 Mackey 580. 
 
 TO Ropeson c. Pittinger, 2 N. J. Eq. 57 ; Durel v. Boisblanc, 1 La. An. 
 407; Gerber v. Grubell, 16 111. 217. 
 
 Collier v. Pierce, 6 Gray 18 ; Rogers . Sawin, 19 Gray 376 ; Carrig 
 v Dee, 14 Gray 583; Keatg v. Hugo, 115 Mass. 204, 15 Am. Rep. 80; 
 Randall v. Sanderson, 111 Mass. 114; Carring v. Dee, 14 Gray (Mass.) 
 583; Richardson v. Pond, 15 Gray (Mass.) 387; Mullen v. Strieker, 19 
 Ohio St. 135; Haverstick v. Sipe, 33 Pa. St. 368; Stein v. Hauck, 56 
 Ind. 65; Turner v. Thompson, 58 Ga. 268; Parker v. Foote, 19 Wend. 
 (N. Y.) 309; Morrison v. Marquardt, 24 Iowa 35; Pierre v. Fernald, 26 
 Me. 436; Cherry v. Stein, 11 Md. 1. But see, Anthony v. Kennard 
 Bldg. Co. (Mo. 1905), 87 S. W. Rep. 921. 
 
 633
 
 444 EASEMENTS. [PART II. 
 
 ing on it with windows opening on the remaining lot, an 
 easement passes to the grantee to have free passage of light 
 and air over the adjoining lot. 72 But this rule is repudiated 
 by some of the other courts, 78 and perhaps the better rule is, 
 that such an easement will be implied from the existence of 
 windows overlooking the other lot of the grantor, only when 
 it is really necessary to the enjoyment of the estate granted. 74 
 It is possible, however, although very unusual, to acquire a 
 right to the easement of light and air by express grant in 
 any State, and the same rules of construction are applied to 
 them which govern in cases of such prescriptive rights under 
 the English law. 75 
 
 444. Right of water. "Where a stream of water passes 
 over the land of two or more adjacent owners, it has been 
 established, upon the doctrine of law that there can be no 
 right of property in water except as to its use, that the 
 adjacent owners have mutual easements upon the soil of each 
 other for the free and unrestricted flow of water. This rule, 
 however, applies in its full force only to the natural streams. 
 The riparian owners have the right to use the water to a 
 reasonable extent, but cannot so use it as to diminish the 
 flow, corrupt the water, 76 or to dam it up, and cause an over- 
 
 72 Jones v. Jenkins, 34 Md. 1, 6 Am. Rep. 1 ; Hubbard v. Town, 33 Vt. 
 295. 
 
 73 Keats T. Hugo, 115 Miss. 204, 15 Am. Rep. 80; Haverstick v. Sipe, 
 33 Pa. St. 368; Mullen v. Strieker, 19 Ohio St. 135, 2 Am. Rep. 379; 
 Morrison v. Marquardt, 24 Iowa 35. 
 
 74 Powell v. Simmes, 5 W. Va. 1, 13 Am. Rep. 629; Turner v. Thomp- 
 son, 58 Ga. 268, 24 Am. Rep. 497. 
 
 75 Mahan v. Brown, 13 Wend. 263; McCready v. Thompson, Dudley 
 (S. C.) 113; Grimley v. Davidson (111.), 24 N. E. Rep. 439. See also 
 cases cited in preceding note. 
 
 76 Wash. v. Oilman, 64 Me. 163, 18 Am. Rep. 246 ; Richmond Manuf . 
 Co. v. Atlantic DeLaine Co., 10 R. I. 106, 14 Am. Rep. 658; Jacobs v. 
 Allard, 42 Vt. 303, 1 Am. Rep. 331. But pollution of the water of a 
 stream by sewage is not actionable against the city, unless the pollu- 
 tion results from a negligent construction or use of the sewers. The city 
 is not responsible in damages, if it is the result of a defective plan of 
 
 634
 
 CH. XVII.] EASEMENTS. 444 
 
 flow of the land above or diminish the volume of the stream 
 below. 77 But if the stream is prevented from inundating 
 lowlands in time of freshets there is no liability for so doing 
 although the volume of the stream may be thereby increased 
 to the greater damage of the banks below. 78 The stream 
 cannot be diverted from its regular course, if by so doing 
 injury results to the owners above or below. 79 To what 
 extent the water may be used by a riparian owner depends 
 upon the circumstances of each case. And the only general 
 rule which can be stated is, that it must not be so used as to 
 produce a perceptible damage to the other proprietors. 80 
 The detention of water, if it is for a reasonable use, will 
 
 sewerage. Merrifield v. City of . Worcester, 110 Mass. 211, 14 Am. Rep. 
 592. For presentation of the " American common law," relating to ease- 
 ments in water courses, as pertaining to mining on the public domain, see 
 White, Mines & Min. Rem., Sees. 209, 210 et sub. 
 
 77 Sampson V. Hoddinott, 1 C. B. ( N. s. ) 590 ; Colburn V. Richards, 
 13 Mass. 420; Anthony v. Lapham, 5 Pick. 175; Kankakee, etc., R. R. 
 Co. v. Horan, 30 111. App. 553; affirming 23 N. E. 621; Miss., etc., R. 
 R. Co. v. Archibald (Miss.), 7 So. Rep. 212. And where the erection 
 of a dam is authorized by legislative enactment, the owner of the dam 
 must make compensation to all riparian proprietors, who have been in- 
 jured thereby. Lee v. Pembroke Iron Co., 57 Me. 481, 2 Am. Rep. 59; 
 Gray v. Harris, 107 Mass. 492, 9 Am. Rep. 61 ; Proctor v. Jennings, 6 
 Nev. 83, 3 Am. Rep. 240 ; Kankakee, etc., R. R. Co. v. Horan, 30 111. App. 
 553; affirming 23 N. E. Rep. 621. 
 
 78 St. Louis, etc., R. R. Co. V. Schneider, 30 Mo. App. 620. 
 
 7 Elliott f. Fitchburg R. R. Co., 10 Cush. 191; Macomber v. Godfrey, 
 108 Mass. 219, 11 Am. Rep. 349; Tuthill v. Scott, 43 Vt. 525, 5 Am. Rep. 
 301. Water may be diverted from the channel for any reasonable use, 
 but it can only be detained as long as it is necessary and reasonable, 
 and it must be returned to the channel, before it passes to the land of 
 the riparian proprietor below. Clinton v. Myers, 46 N. Y. 511, 7 Am. 
 Rep. 373 ; Arnold v. Foot, 12 Wend. 330 ; Miller v. Miller, 9 Pa. St. 74 ; 
 Pool v. Lewis, 46 Ga. 162, 5 Am. Rep. 526. 
 
 so Mason v. Hill, 5 B. &. Aid. 1 ; Embrey v. Owen, 6 Exch. 353 ; Merritt 
 v. Brinkerhoff, 17 Johns. 306; PolMtt t;. Long, 58 Barb. 20; Arnold v. 
 Foote, 12 Wend. 339; Clinton v. Myers, 46 N. R. 511, 7 Am. Rep. 373; 
 Holeman v. Boiling Spring Co., 14 N. J. Eq. 335; Dumont v. Kellogg, 
 29 Mich. 420, 18 Am. Rep. 102 ; Samuels v. Armstrong ( N. Y. 1905 ) , 93 
 N. Y. S. 24; Clark v. Allman (Kan. 1905), 80 Pac. Rep. 571. 
 
 635
 
 445 EASEMENTS. [PART II. 
 
 not be actionable, even though it may cause injury to the 
 proprietors below. But if the use be an unusual one, then 
 it is not likely that the rule would apply. 81 This rule is well 
 established in favor of mill owners, the working of whose mills 
 by the water prevents its use for a similar purpose by a ripar- 
 ian proprietor below. The right to run a mill in such cases, 
 and to dam up the water for that purpose, depends upon the 
 priority of establishment. He who first creates a mill upon 
 the banks of the stream obtains a prior right to the use of 
 the stream for that purpose, and if the quantity of water 
 is not sufficiently large to permit the running of more than 
 one mill, no other mill can be erected. If a second mill is 
 erected by a proprietor above, and the diversion and deten- 
 tion of water for the purpose of the mill are so great as to 
 diminish materially the supply of water to the first mill, 
 the owner of the latter can enjoin such detention or diver- 
 sion of the water. 82 The mill owner cannot, under any cir- 
 cumstances, so dam up the water as to cause it to overflow 
 the land above, or to divert it from the proprietor below, 
 although in some States by statute mill owners are permitted 
 to inflict such injury upon the adjoining proprietors by 
 the payment in compensation in the way of damages, the 
 assessment, and recovery of which are regulated by the 
 statutes. 83 
 
 445. Percolations and swamps Surface drainage. The 
 above statements are only applicable to what are known in 
 
 si Springfield V. Harris, 4 Allen 494; Gould v. Boston Duck Co., 13 
 Gray 443; Clinton v. Myers, 46 N. Y. 511, 7 Am. Rep. 373; Pool V. 
 Lewis, 41 Ga. 162, 5 Am. Rep. 526; Whitney v. Wheeler Cotton Mills 
 (Mass.), 24 N. E. Rep. 774. 
 
 82Liggins v. Inge, 7 Bing. 682; Mason v. Hill, 5 B. & Ad. 1; Williams 
 V. Moreland, 2 B. & C. 910; Bealey v. Shaw, 6 East 209; Ang. on Wat 
 Cour., Sees. 130, 135; Carey V. Daniels, 8 Mete. 466; Calmount v. Whit- 
 aker, 3 Rawle 84. 
 
 83 Washburn on Ease., Ch. 3, Sec. 5, PI. 35-46 ; Ang. Wat. Cour., Sec. 
 482. See, for right to divert water for irrigation purposes, Hage t>. 
 Eaton (U. S. C. C. Colo. 1905), 135 Fed. Rep. 411. 
 636
 
 CH. XVII.] EASEMENTS. 445 
 
 the law as natural water courses. There must be a regular 
 stream flowing in a regular channel, whether on the surface 
 or under ground, in order that such rights may be claimed in 
 it. If the water constituted a swamp upon the adjacent 
 land, which flowed in no fixed channel, or if it percolated 
 through the soil from one tract of land to another, the rules 
 enunciated in the preceding paragraph do not apply. The 
 owner of the land may draw off the water from the swamp, 
 or divert the percolation, so as to collect the water in a well 
 upon his own land, notwithstanding it results in serious 
 detriment to the adjacent proprietor. 84 But if the owner of 
 the land is actuated by malice, as where he pollutes the 
 water, or cuts off the underground current, simply for the 
 purpose of rendering his neighbor's well useless, an action 
 would lie for the damage thus inflicted. 85 If the pipes and 
 other conduits can be so arranged that one well need not 
 interfere with the other, as in the case of the artesian wells, the 
 parties will be required to observe this caution. 88 
 
 In draining one's land of surface water, no action will lie 
 if it be allowed to flow over the adjoining land through 
 natural channels. 87 It is sometimes held that the owner of 
 the adjoining land may prevent such overflow of his land by 
 the erection of barriers, or by the use of any other suitable 
 
 ** Ocean Grove, etc., Assn., v. Asbury Park, Com. n, 40 N. J. Eq. 447. 
 
 ssRawstron v. Taylor, 11 Exch. 369; Greenleaf v. Francis, 18 Pick. 
 117; Luther v. Winnisimett Co., 9 Cush. 171; Wilson v. City of Bed- 
 ford, 108 Mass. 261, 11 Am. Rep. 352; Brown v. Illins, 25 Conn. 583; 
 Village of Delphi v. Youmans, 45 N. Y. 362, 6 Am. Rep. 100; Hanson r. 
 McCue, 48 Cal. 303, 10 Am. Rep. 299 ; Hougan v. Milwaukee, etc., R. R. 
 35 Iowa 558. 14 Am. Rep. 502; Burroughs v. Saterlee, 67 Iowa 396, 50 
 Am. Rep. 350. 
 
 s Burroughs v. Saterlee, 67 Iowa 366, 56 Am. Rep. 350; Collins v. 
 Chartiers Val. Gas Co., 131 Pa. St. 143, 18 Atl. Rep. 1012. See also, 
 Brown v. Armstrong (Iowa 1905), 102 N. W. Rep. 1047; Bryant v. 
 Merritt (Kan. 1905), 80 Pac. Rep. 600; Tyrus v. R. R. (Tenn. 1905), 
 80 S. W. Rep. 1074. 
 
 STSentner v. Tees. 132 Pa. St. 216, 18 Atl. Rep. 1104; Boynton v. 
 Londey, 19 Nev. 69, 6 Pac. Rep. 43. 
 
 637
 
 446 EASEMENTS. [PART II. 
 
 means. 88 And while this is without doubt a sound rule in 
 the case of urban servitudes, the better opinion is, at least 
 in respect to drainage on farms and woodlands, that the 
 upper land has a natural right to natural drainage over the 
 land. 89 But in the drainage of one's land it is not per- 
 missible to direct the flow of the water upon the adjoining 
 land or to increase the volume of the flow by the construction 
 of a drain or ditch. 90 Still, it is permissible by the use of 
 such means to empty the water into a natural stream, and 
 if the volume of the stream is thereby increased to such an 
 extent as to cause damage to the riparian owners below, they 
 are without remedy. 91 The same rule applies to the drain- 
 age of one 's land into the highway. 92 
 
 446. Artificial water courses. The rule is also different 
 where the water course is artificial. No one has the right 
 to establish an artificial water course upon the land of an- 
 other; but if the latter permits its construction he acquires 
 no easement in the water, and cannot compel its perpetual 
 maintenance, whatever injury he might suffer from its dis- 
 continuance. An uninterrupted enjoyment of the artificial 
 water course for twenty years will not give him such a right. 
 The construction of the water course being only for certain 
 purposes, the adjoining owner could not by mere enjoyment 
 
 ssGreeley v. Maine Cent. R. R., 53 Me. 200. Contra, if it does injury, 
 Gerrish v. Clough, 48 N. H. 9, 2 Am. Rep. 165; Ogburn v. Connor, 46 
 Cal. 346, 13 Am. Rep. 213. 
 
 89 Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24 ; Boyd v. Conklin, 54 
 Mich. 583, 52 Am. Rep. 831; Abbott v. K. C., etc., R. R. Co., 83 Mo. 
 271, 53 Am. Rep. 581; Schneider v. Mo. Pac. R. R. Co., 29 Mo. App. 681. 
 
 o Weidekin v. Sfielson, 17 111. App. 461; Beach v. Gaylord, 43 Minn. 
 476, 45 N. W. Rep. 1095; Chapel v. Smith (Mich.), 45 N. W. Rep. 69; 
 Weddell v. Hapner (Ind.), 24 N. E. Rep. 368; David Heiser v. Rhodes 
 (Pa.), 19 Atl. Rep. 400. 
 
 i Dickinson v. Worcester, 7 Allen 19 ; Smith v. Kendrick, 7 C. B. 
 515; Hoester v. Hemsath, 16 Mo. App. 485; Wagner v. Chaney, 19 111. 
 App. 546; Bryant v. Merritt (Kan. 1905), 80 Pac. Rep. 600. 
 
 92Huddleston v. West Bellevue, 111 Pa. St. 110. 
 638
 
 CH. XVII.] EASEMENTS. 447 
 
 acquire a prescriptive right to its continuance. He who 
 creates the artificial stream may stop or divert it when he 
 pleases, but at the same time he cannot maliciously foul the 
 water to the detriment of the riparian owners below. 83 
 
 447. Easements in water courses and surface drainage. 
 The various rights so far mentioned are natural rights inci- 
 dent to riparian ownership, implied or established by law. 
 These rights are enjoyed independent of any contract or 
 grant. But it is manifest that an express grant may operate 
 in enlarging, diminishing or altogether extinguishing, the 
 natural rights. They may be varied, and new rights may be 
 acquired by prescription 9 * or grant. An express grant or 
 prescription will alter the natural or common law rights of 
 the riparian owners 95 in the same manner as the creation of 
 express and special easements affects the rights of property 
 in other cases. 96 The same rule applies to the right of 
 surface drainage and the maintenance of water pipes across 
 another's lands. 07 But in order that such a right may be 
 claimed by prescription, the right must "have been exercised 
 during the statutory period of limitation in defiance of or 
 
 3 Arkwright v. Gell, 5 Mees. & W. 203; Mayor v. Chadwick, 11 A. & 
 E. 571; Saunders v. Newman, 1 B. & Aid. 258; Napier v. Bulwinkle, 5 
 Rich. 317. 
 
 * Whitney v. Wheeler Cotton Mills (Mass.), 24 N. E. Rep. 774; Cox 
 v. Clough, 70 Cal. 345; Terry v. Smith, 47 Hun 333; Keyaer v. Covell, 
 62 N. H. 283; Johnson V. Boorman, 63 Wis. 268; McGeorge v. Hoffman 
 (Pa.), 19 Atl. Rep. 413. 
 
 5 See Roe v. Redner (N. Y. 1904), 93 N. Y. S. 258. 
 
 Manning v Wasdale, 5 A. & E. 758 ; Stockport Waterworks v. 
 Potter, 3 H. & C. 300; . o. 31 L. J. Exch. 9; McDaniel v. Cummings, 
 83 Cal. 515, 22 Pac. Rep. 216; Peaslee v. Tower, 62 N. H. 434; Carleton 
 Mills Co. v. Silver, 82 Me. 215, 19 Atl. Rep. 154; Warner v. Cushman, 
 82 Me. 164, 19 Atl. Rep. 159; Curtis v. La Grande Water Co. (Ore.), 
 23 Pac. Rep. 808; Terry c. Smith, 47 Hun 333; Whitney . Wheeler 
 Cotton Mills Co. (Mass.), 24 N. E. Rep. 774. 
 
 7 Johnson v. Knapp, 150 Mass. 267, 23 N. E. Rep. 40; White v. Shel- 
 don, 8 N. Y. S. 212; Ribordy v. Pellachoud, 28 111. App. 303. 
 
 639
 
 448 EASEMENTS. [PART II. 
 
 adverse to the claims of the owner of the servient estate. 98 
 Where special rights are acquired in a stream of water 
 by grant, the owner of the dominant estate or grantee has 
 no right to make such use of the water as will inflict greater 
 injury upon the other riparian owners than is expressly per- 
 mitted by the terms of the grant. And the right acquired 
 by prescription cannot in the same way be enlarged or ex- 
 tended. 00 Where one has the right of a water course over 
 another's land, he is obliged to keep it in repair, in the 
 absence of covenants imposing that obligation upon the owner 
 of the land, and for that purpose he has the right to enter 
 upon the land to make the repairs, taking care that no un- 
 necessary damage be done to the servient estate. 1 
 
 448.* Bight of lateral and subjacent support. As an in- 
 cident to the right of property in lands, the proprietor can- 
 not make excavations upon his land, which will deprive the 
 adjoining land of that lateral support which is necessary to 
 keep it from falling in. 2 In the same manner, where there 
 is a separate ownership in the surface, and the mines be- 
 neath, the owner of the mines cannot, by working them, so 
 weaken the subjacent support to the surface as to cause it 
 to cave in. 3 The cases are numerous in which the right to 
 lateral and subjacent support is claimed and conceded, and 
 
 8 White v. Sheldon, 8 N. Y. S. 212 ; Boynton v. Longley, 19 Nev. 69, 
 6 Pac. Rep. 437. 
 
 9" Sampson v. Hoddinott, 1 C. B. (N. s.) 590; Bickett V. Morris, L. 
 R. 1 H. L. Gas. 47; Smith v. Langewald, 140 Mass. 205; Mack v. 
 Bensley, G3 Wis. 80. 
 
 1 Peter v. Daniel, C. B. 568; Prescott V. White, 21 Pick. 341. "Where 
 an owner of land granted a right to the owner of a dam to keep, main- 
 tain, rebuild, and repair the same, the grantee of the owner takes sub- 
 ject to the grant." Roe p. Redner (N. Y. Sup. 1904), 93 N. Y. S. 258. 
 
 2 Partridge v. Scott, 3 Mees. & W. 220; Humphries v. Brogden, 12 Q. 
 B. 743; Beard v. Murphy, 37 Vt. 101; McGuire v. Grant, 25 N. J. L. 356; 
 Charless v. Rankin, 22 Mo. 566. 
 
 s Humphries v. Brogden, 12 Q. B. 739 ; Smart v. Morton, 5 E. & B. 
 30; Rowbotham v. Wilson, 8 E. & B. 123; Jones V. Wagner, 66 Pa. St. 
 429, 5 Am. Rep. 385. 
 640
 
 CH. -XVII.]] EASEMENTS. 448 
 
 the same general principles determine the character and 
 limitations of both kinds of support. 4 These are natural 
 rights of easements, which are independent of any covenant 
 or grant. They extend, however, only to the support of the 
 adjoining land or surface in its natural condition. If the 
 burden of support is increased by the erection of buildings 
 upon the land, and because of such increase the excavation 
 has caused the injury to the adjacent owner, he is without 
 remedy. He had no natural easement upon the land of his 
 neighbor for the support of his buildings. Such is also the 
 rule where in the case of mines, the erection of the buildings 
 causes the surface to give way. 5 But if the excavation is 
 made in a negligent or unskillful manner, and the damage 
 results from negligence or unskillfulness, and not from the 
 increase of the burden by the erection of the house, an action 
 will lie for the injury thus sustained. 6 And it is generally 
 
 < Homer 17. Watson, 79 Pa. St. 242; s. c. 21 Am. Rep. 55; Richardson 
 v. Vt. Cent. R. Co., 25 Vt. 465; Yandes v. Wright, 66 Ind. 319; Jones 
 V. Wagner, 66 Pa. St. 429; Scranton V. Phillips, 94 Pa. St. 15; Carlin 
 v. Chappell, 101 Pa. St. 348; Buskirk v. Stickland, 47 Mich. 389; Shafer 
 r. Wilson, 44 Md. 268; Dyer V. City of St. Paul, 27 Minn. 457; Marvin 
 V. The Brewster Iron Mfg. Co., 55 N. Y. 538; Marvin 17. Brewster Iron 
 Mining Co., 55 N. Y. 538; s. c. 14 Am. Rep. 322; White 17. Dresser, 135 
 Mass. 150; Coleman, et al., V. Chadwick, 80 Pa. St. 81. See also, Myer 
 v. Hobbs, 57 Ala. 175; Gilmore v. Driscoll, 123 Mass. 199; Mamer v. 
 Lussem, 65 111. 484 ; Wilms 17. Jess, 94 111. 464 ; s. c. 34 Am. Rep. 242 ; 
 Tunstall v. Christian, 80 Va. 1; a. o. 56 Am. Rep. 581; Northern Trans. 
 Co. of Ohio v. Chicago, 99 U. S. (9 Otto) 635. For discussion of rela- 
 tive rights of surface and mine owner and collation of authorities on in- 
 juries to surface owner, from removal of subjacent strata, by mine 
 owner, both as regards the land in its natural state and with additional 
 weight of buildings, see, White, Mines & Min. Rem., Sees. 212, 216. 
 
 8 Rogers 17. Taylor, 2 H. & N. 828; Palmer 17. Flesheea, 1 Sid. 167; 
 McGuire t7. Grant, 25 N. J. L. 356; Napier r. Bulwinkle, 5 Rich. 311; 
 Charless v. Rankin, 22 Mo. 566. 
 
 Foley 17. Wyeth, 2 Allen 131; Richardson 17. Vermont Cent. R. R., 25 
 Vt. 465; Panton 17. Holland, 17 Johns. 92; McGuire 17. Grant, 25 N. J. L. 
 356; Wilms 17. Jess, 94 111. 464; Coleman 17. Chadwick, 80 Pa. St. 81; 
 Homer 17. Watson, 79 Pa. St. 242; Scranton 17. Phillips, 94 Pa. St. 15; 
 Carlin v. Chappell, 101 Pa. St. 348; Livingston 17. Moingona Coal Co., 
 49 Iowa 369. 
 
 41 641
 
 EASEMENTS. [PART II. 
 
 held that the party intending to make an excavation on his 
 own land must notify the adjoining proprietor if the excava- 
 tion is likely to endanger the foundation of his building. 7 
 The English courts, however, deny the right to an action in 
 such a case, if injury would not have resulted from the 
 negligence, had there been no building or other superstruc- 
 ture upon the land. 8 A common case for the application of 
 the right to lateral and subjacent support, is that of cutting 
 down the grade of streets to such an extent as to cause a 
 caving in of adjoining land. 9 But these natural rights may 
 be enlarged or diminished by express grant, or entirely new 
 rights may be acquired by prescription. Thus a house may 
 have annexed to it by grant or prescription an easement for 
 lateral or subjacent support on the adjacent or underlying 
 property of another, which cannot be claimed as a natural 
 incident of the right of property. On the other hand, the 
 right to such a support may be surrendered altogether. 10 
 Where the natural easement is thus extended to include the 
 support of buildings then all excavations must be so con- 
 
 7 See Payton v. Mayor of London, 9 Barn. & Cress. 725 ; 4 Man. & Ky. 
 625; Walters v. Pfeil, 1 Moody & Malk. 362; Massey v. Goyder, 4 Car. 
 & Payne 161; Lasala V. Holbrook, 4 Paige (N. Y.) 169. As a general 
 rule, the easement of support on the part of the surface owner is held, 
 by implication, to extend to his buildings, so as to protect him from 
 excavations or underground drifts. White, Mines & Min. Rem., Sees. 
 212-216, and cases cited. 
 
 s Smith v. Thackerah, L. R. 1 C. B. 564 ; Brown f. Robins, 4 H. & N. 
 186; Strogan v. Knowles, 6 H. & N. 454; Backhouse v. Bonomi, 9 H. L. 
 Cas. 503. 
 
 Humphries v. Brogden, 12 Q. B. D. 743 ; Wyatt v. Harrison, 3 Barn. 
 & Adol. 871; 8. c. 23 Eng. Com. L. 380; Hendricks v. Spring Valley Min- 
 ing and Irrigation Co., 58 Cal. 190. 
 
 10 Rogers v. Taylor, 2 H. & M. 828 ; Wyatt v. Harrison, 3 B. & Ad. 
 817; Cox v. Matthews, 1 Vent. 237; Brown f. Windsor, 1 Compt. & J. 
 20. It has been held in Georgia and elsewhere that the right to lateral 
 support for a building cannot be acquired by prescription. Mitchell v. 
 Mayor, 49 Ga. 19, 15 Am. Rep. 469; Gilmore v. Driscoll, 122 Mass. 199; 
 Tunstall v. Christian, 80 Va. 1; s. c. 56 Am. Rep. 591; Napier v. Bui- 
 winkle, 5 Rich. (S. Car.) 311; 
 642
 
 CH. XVII.] EASEMENTS. 450 
 
 ducted that no damage be done to the buildings or other 
 structures. 11 
 
 449. Implied grant of lateral support. Another excep- 
 tion to the general rule arises where the owner of two adjoin- 
 ing lots conveys one with a building thereon; he cannot by 
 excavations on the other lot deprive the building of the 
 requisite support. The grant of an easement for lateral sup- 
 port is implied from his conveyance of the lot and building. 
 He will not be permitted to do anything upon the remaining 
 lot which will detract from its full enjoyment. 12 The same 
 rule applies when adjacent houses rely for lateral support 
 upon the walls of each other, as where houses are built in a 
 block, and the walls between them mutually support each 
 other. If one man erects the block, and afterwards sells one 
 or more of the houses, an easement for support arises in 
 favor of the owners of the several houses. 13 This easement 
 may also be acquired by express grant in all cases where 
 it will not be implied. 1 * 
 
 450. Party walls. Rights similar to lateral support are 
 acquired by the erection of the so-called party walls. A 
 party wall is one which is erected between two lots for the com- 
 mon benefit of the owners thereof in supporting the beams 
 of their adjoining buildings. They are not tenants in 
 common of the entire wall. Each has the title in severalty 
 
 11 Partridge v. Scott, 3 Mee. & W. 220 ; Brown v. Windsor, 1 Compt. 
 & J. 20; Hide v. Thornborough, 2 Car. & Kir. 250; McMillen v. Watt, 
 27 Ohio 306; see also City of Quincy v. Jones, 76 111. 231; s. c. 20 Am. 
 Rep. 243; Tunstall v. Christian, 80 Va. I; s. c. 56 Am. Rep. 581; O'Con- 
 nor v. Pittsburg, 18 Pa. St. 187. 
 
 "Brown v. Windsor, 1 C. & J. 20; Richards v. Rose, Ex. Ch. 218; 
 Humphries v. Brogden, 12 Q. B. 743; Eno v. Del Vecchio, 4 Duer 53; 
 McGuire v. Grant, 25 N. J. L. 356. 
 
 "See Dee v. King (Vt. 1905), 59 Atl. Rep. 839. 
 
 i* Solomon v. Vintner's Co., 4 H. & N. 598; Walters v. Pfeil, Mood. & 
 M. 362; Peyton v. Mayo of London, 9 B. & C. 725; Kieffer v. Imhof, 26 
 Pa. St. 438; City of Quincy v. Jones, 76 111. 231; U. S. v. Appleton, 1 
 Sumn. (U. S.) 492. 
 
 643
 
 450 EASEMENTS. [PART II. 
 
 to one-half, with an easement for support in the other half. 
 Each of the owners can do whatever he pleases with his own 
 half, provided he does not weaken the support of the other 
 half. And if he tears down his half he does it at the risk 
 of rendering himself liable for any injuries sustained by the 
 remaining portion of the wall. 15 But it is not every wall 
 which is common between two houses that has the character- 
 istics of a party wall. 16 But every such wall by constant use 
 as a common wall for twenty years will become a party wall 
 by prescription. 17 Party walls are generally erected by 
 express agreement between the parties, each paying his share 
 of the expenses. 18 The mere erection by one of a common 
 wall between them will not subject the other to liability for 
 one-half the expenses of erection, even though he derives as 
 much benefit therefrom as the one who caused its erection. 19 
 Party walls are generally, though not necessarily, erected one- 
 half on each of the contiguous estates. 20 The easements of 
 the adjoining owners in each other's half of the party-wall 
 are lost whenever the party-wall is pulled down or other- 
 wise destroyed. 21 
 
 iMatts v. Hawkins, 5 Taunt. 20; Sherred v. Cisco, 4 Sandf. 480; 
 Ormau v. Day, 5 Fla. 385 ; Berry v. Todd, 14 Daly 450. 
 
 isTraute . White (N. J.), 19 Atl. Rep. 196. 
 
 IT Eno f. Del Vecchio, 4 Duer 53; Dowling r. Hennings, 20 Md. 179. 
 But see Mitchell v. Mayor, 49 Ga. 19, 15 Am. Rep. 669 ; Napier V. Bui- 
 winkle, 5 Rich. 311. 
 
 is Evans v. Howell (111. 1903), 111 111. App. 167; Hutchins r. Mum 
 (D. C. 1903), 22 App. D. C. 88. 
 
 is Richardson v. Tobey, 121 Mass. 457, 23 Am. Rep. 283; Sherred v. 
 Cisco, 4 Sandf. 480; Dole v, Hughes, 54 N. Y. 444, 13 Am. Rep. 611. 
 And one part owner of a party wall may be sued on his contract or 
 covenant for his share of the expenses. Day v. Caton, 115 Mass. 513, 
 20 Am. Rep. 347 ; Rindge V. Baker, 57 N. Y. 207, 15 Am. Rep. 475. But 
 a covenant to build a party wall is executory and personal in its nature, 
 and does not run with the land so as to bind the assigns of the cove- 
 nantor. Cole V. Hughes, 54 N. Y. 444, 13 Am. Rep. 611. 
 
 20 See Cubitt v. Porter, 8 B. & C. 257 ; Wiltshire t?. Sidford, 8 B. & C. 
 259; Dowling v. Hennings, 20 Md. 179; Hammann v. Jordan, 9 N. Y. S. 
 423. 
 
 iF*rtt v. Kruger (N. Y.), 24 N. E. Rep. 841, 5 N. Y. S. 841.
 
 CH. XVII.] EASEMENTS. 451 
 
 451. Double ownership in buildings Subjacent support. 
 Where there is a separate ownership in the upper or lower 
 half of a house, similar easements of support are enjoyed by 
 the respective owners. The owner of the upper half is en- 
 titled to the subjacent support from the lower half, and the 
 owner of the lower half has an easement in the upper half, 
 the roof, etc., for protection from rain and other elements. 
 The owner of the upper story would also have as a way of 
 necessity, if not by express grant, a right to use the hall and 
 stairs in getting to and out of the upper story. 22 The law is 
 not very clear as to the obligations of the owners to each other. 
 Without doubt one cannot do any affirmative act to his half 
 which will result in damage to the other. But whether he is 
 under a legal obligation to keep his half in repair for the bene- 
 fit of the other is not well settled, 23 although that would seem 
 to be a just and equitable doctrine. If there is no such obliga- 
 tion to repair, the owner of the other half has the right to 
 enter and make the repairs himself. There seems also to be a. 
 tendency to adopt the French rule, making all expenses for 
 repair a common charge upon all the owners. 24 But it will 
 require further adjudication in order to settle the rights and 
 obligations of these parties. 
 
 If there is no provision for rebuilding, the title of the 
 purchaser of an upper story or single room of a building is 
 completely extinguished by the destruction of the building. 28 
 
 22 Mayo v. Newhoff (N. J.), 19 Atl. Rep. 837. 
 
 23 The authorities generally deny the right of action. Calvert v. Al- 
 drich, 99 Mass. 74; Pierce v. Dyer, 109 Mass. 374, 12 Am. Rep. 716. 
 But if the owner of the upper half repairs the roof, he bears the whole 
 expenses, and cannot compel the owner of the other half to pay any 
 proportion of it. Ottumwa Lodge V. Lewis, 34 Iowa 07, 11 Am. Rep. 
 135. See also Graves v. Berdan, 26 N. Y. 501; McCormick v. Bishop, 
 28 Iowa 239. 
 
 2* Campbell v. Mesier, 4 Johns. Ch. 334. Contra, Ottumwa Lodge V. 
 Lewis, 34 Iowa 67, 11 Am. Rep. 135. And see Graves v. Berdan, 26 N. 
 r. 501 ; McCormick v. Bishop, 28 Iowa 239. 
 
 "Hahn v. Baker Lodge (Oreg.), 27 Pac. Rep. 166. For authorities 
 on the easement of the owner of buildings and other structures, of 
 
 645
 
 452 EASEMENTS. [PART II. 
 
 452. Legalized nuisances. Where one acquires from the 
 owners of the land in the neighborhood, by grant or prescrip- 
 tion, the right to do things which, without such license, would 
 be a nuisance, and for which an action would lie, he is said to 
 have acquired an easement in the lands to commit the nuisance, 
 free from liability for the consequences. Such is very often the 
 case with noisome or offensive trades. The trade must, how- 
 ever, be lawful, and likely to be productive of benefit to the 
 public, in order that the easement may bind the owners of the 
 neighboring land. And a nuisance, legalized in this manner, 
 must be kept strictly within the conditions upon which the 
 right was acquired. The licensee will not be permitted to 
 increase the nuisance, or to establish a new one in its place, 
 and the right must be exercised with the least possible dis- 
 comfort or annoyance to the owners of the adjoining lands. 26 
 
 support from the subjacent strata of the soil, on which such erections 
 are placed, see White, Mines and Min. Rem., Sec. 216. 
 
 aeAldred's Case, 9 Rep. 59 a ; Cole v. Barlow, 4 C. & B. (N. s.') 434; 
 Dana v. Valentine, 5 Mete. 8; Atwater v. Bodfish, 11 Gray 152; Hole- 
 man v. Boiling Spring Co., 14 N. J. Eq. 346. See, for allowance of dam- 
 ages, for flagrant violation of land owner's rights, Bernos v. Canepa 
 (La. 1905), 38 So. Rep. 438. 
 646
 
 SECTION III. 
 
 FRANCHISES. 
 
 SECTION 453. Definition. 
 
 454. Kinds of franchises. 
 
 455. Mutual obligations. 
 
 456. Conflicting franchises Constitutional prohibition. 
 
 453. Definition. A franchise is a privilege granted by 
 the government to individuals which is not enjoyed by, and do 
 not belong in common to, the people of a country. In Eng- 
 land it is conferred by letters patent from the crown, and in 
 this country by grants from the legislative department of the 
 government. It is a privilege which is granted because it is 
 calculated to promote the public benefit, while at the same 
 time it affords a source of revenue to those who engage in its 
 exercise. 27 A franchise is generally, but not necessarily, 
 granted to a corporation. Individuals may possess it, but it 
 is usually of such a nature that it is easier and more con- 
 venient for corporations to exercise it. It is an estate of 
 inheritance, unless its enjoyment is limited to a specific period, 
 and is inheritable. 28 It can be aliened, and may be sold to 
 satisfy the debts of the corporation or the individuals who 
 own it. 29 The franchise is to be distinguished from the char- 
 
 27 Bk. of Augusta v. Earle, 13 Pet. 519; 2 Bla. Com. 37; People v. 
 Utica Ins. Co. 15 Johns. 358. In England franchises are now granted 
 by the Legislature, instead of by the crown as formerly. 1 Cool. Bla. 
 Com. 274, n. 
 
 "3 Kent's Com. 459; 2 Washburn on Real Prop. 291; Chad wick v. 
 Haverhill Bridge, 2 Dane Abr. 686; Stark v. McGowen, 1 Nott. & M. 
 393; Clark v. White, 5 Bush 353. 
 
 2 2 Washburn on Real Prop. 297. For compliance with franchise, 
 after sale by the corporation to which same was granted, see Grosse 
 P. L. t?. Detroit & L. Ry. Co. (Mich. 1902), 90 N. W. Rep. 42. For 
 
 647
 
 455 FRANCHISES. [PART n. 
 
 ter of the corporation which owns it, although the franchise is 
 often granted in the same a.ct which contains the charter. 
 Thus, in the case of a railroad company, the franchise of the 
 road may be sold to satisfy debts, but the charter does not pass 
 with it. 
 
 454. Kinds of franchises. There are as many kinds of 
 franchises as there may be privileges granted by the govern- 
 ment. The most common are ferries, bridges, turnpike roads, 
 and railroads. A ferry is the right to conduct passengers and 
 freight by boat across a navigable stream between two points 
 on the opposite banks. The right to a ferry does not depend 
 upon the proprietorship of the water, or of the banks. Neither 
 gives the right to set up a ferry, nor does the grant of a ferry 
 interfere with the general navigation of the stream. 30 In the 
 same manner is the right to construct a bridge .across a stream, 
 or to build a railroad or turnpike, a privilege, and not a com- 
 mon right which may be enjoyed by any one. 31 
 
 % 
 
 455. Mutual obligations. In the grant of a franchise, 
 mutual obligations are assumed by the government and the 
 individuals or corporations who receive it. The government 
 confers upon the latter the right to exercise the right of 
 eminent domain over private property, so far as it is necessary 
 for the enjoyment of the franchise, and the further right to 
 
 custom of letting franchise to highest bidder, see California v. Tel. Co. 
 (Mo. 1905), 87 S. W. Rep. 604. 
 
 so Peter v. Kendall, 6 B. & C. 703; Fay, Petitioner, 15 Pick. 243; 
 Fall v. County Sutter, 21 Cal. 252; Inh. Peru v. Barrett (Me. 1905), 60 
 Atl. Rep. 968. 
 
 si Beckman v. Saratoga, etc., R. R., 3 Paige Ch. 45 ; Bloodgood v. Mo- 
 hawk Railroad, 18 Wend. 9; Milhan v. Sharp, 27 N. Y. 619; McRob- 
 erts v. Washburn, 10 Minn. 27. " The fact that the corporation's right 
 in the State authorizes a contract a lease cannot alter its status, 
 as a contract made under a franchise cannot reach beyond the rights 
 acquired by the franchise itself, and afford immunity from public du- 
 ties." Louisiana & Northwest R. Co. v. State (Ark. 1905), 88 S. W. 
 Rep. 559. 
 
 648
 
 CH. XVII.] FRANCHISES. 456 
 
 provide for its own compensation, by charging a toll to all 
 persons who make use of the benefits thus provided. On the 
 other hand, the corporation undertakes to provide for the pub- 
 lic safety and convenient accommodations, and for any fail- 
 ure to carry out its part of the contract it is liable to any 
 person who may be injured thereby, and it may lose its fran- 
 chise by forfeiture to the State. The franchise is forfeited 
 only at the suit of the government, by a judgment in a proceed- 
 ing of scire facias or quo warrantor 
 
 456. Conflicting franchises Constitutional prohibition. 
 If the government, in granting a franchise, obligates itself not 
 to grant a similar franchise to be exercised in the same neigh- 
 borhood, or between the same points, any subsequent franchise 
 would be void, under the provision of the United States Con- 
 stitution, which prohibits a State from passing any law impair- 
 ing the obligation of a contract. 83 But if there is no express 
 restriction of that kind, none will be implied. And the grant 
 of a second franchise would be good, even though its exercise 
 would render the first altogether valueless. 34 A franchise ia 
 not necessarily a monopoly. And even when there is such a 
 restriction, the State is not prohibited from destroying the first 
 franchise by the grant of a second, under the doctrine of 
 eminent domain, whenever the public wants require such a 
 forfeiture. 35 In such a case, however, the owners of the first 
 
 82 Peter v. Kendall, 6 B. & C. 703 ; Willoughby v. Horridge, 12 C. B. 
 742 ; 3 Kent's Com. 458 ; 2 Washburn on Real Prop. 293 ; Louisiana & N. 
 W. Co. v. State (Ark. 1905), 88 S. W: Rep. 559. 
 
 as Dartmouth College v. Woodward, 4 Wheat. 518; Boston & Lowell 
 R. R. v. Salem & L. R. R., 2 Gray 1 ; Newburgh Turnpike Co. v. Miller, 
 5 Johns. Ch. 101 ; McRoberts v. Washburn, 10 Minn. 29. 
 
 84 Charles River Bridge Co. v. Warren River Bridge Co., 7 Pick. 344 ; 
 s. c., 11 Pet. 429; Richmond R. R. Co. v. Louisa R. R. Co., 13 How. 71; 
 Fort Plain Bridge Co. v. Smith, 30 N. Y. 61; Fall v. County Sutter, 21 
 Cal. 252. 
 
 35 For constitutionality of laws impairing the validity of franchises, 
 see C. B. & I. R. Co. v. Abbott (111. 1905), 215 111. 416, 74 N. E. Rep. 
 412; People v. Bd. Tax Comr., 199 U. S. 53, 49 L. Ed. 30; Detroit, etc., 
 R. Co. u. Powers, 138 Fed. Rep. 264. 
 
 649
 
 456 FRANCHISES. [PART II. 
 
 franchise would be entitled to, and would receive, a proper 
 compensation for such loss. A franchise is just as much sub- 
 ject to the exercise of eminent domain, under similar restric- 
 tions as to compensation, as any other kind of private 
 property. 36 If, however, private persons attempt, without a 
 franchise, to exercise the same rights as are granted by the 
 franchise, to the prejudice of the owners of the franchise, such 
 an interference would be considered a nuisance, which will be 
 abated and damages awarded upon proper application to the 
 courts. ST 
 
 3 West River Bridge Co. v. Dix, 6 How. 507 ; Richmond R. R. Co. v. 
 Louisa R. R. Co., 13 How. 71 ; Boston Water Power Co. v. Boston & W. 
 R. R. Co., 23 Pick. 360; McRoberts v. Washburn, 10 Minn. 27; Rochester 
 v. Rochester (N. Y. 1905), 74 N. E. Rep. 963. 
 
 37 2 Bla. Com. 219; 2 Washburn on Real Prop. 294; Ogden V. Gibbons, 
 4 Johns. Ch. 150; Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 101; 
 Fall r. County Sutter, 21 Cal. 252. But see, as to the power of the 
 legislature to alter or change the charter power o'f a corporation, within 
 the power reserved by the grant, McKee v. Chautauqua Assembly, 130 
 Fed. Rep. 536. 
 650
 
 SECTION IV. 
 
 RENTS. 
 
 SECTION 457. Rents defined. 
 
 458. Rent-service. 
 
 459. Rent-charge and rent-seek Fee farm rents. 
 
 460. How created. 
 
 461. How extinguished or apportioned. 
 
 462. Remedies for the recovery of the rent. 
 
 463. Liens arising from charges by will or by deed. 
 
 464. Liens by express charges. 
 
 457. Rents defined. A rent, according to Mr. Washburn, 
 "is a right to the periodical receipt of money or money's worth 
 in respect of lands, which are held in possession, reversion or 
 remainder, by him from whom the payment is due. " 38 It is, 
 in other words, a right to the payment of something out of the 
 profits of lands, to be rendered by the owner thereof and his 
 privies. At common law there were three kinds of rents, 
 viz. : Rent service, rent seek and rent charge. 
 
 458. Rent service. A rent service is that which the 
 owner of a feud reserves to himself in conveying a part or the 
 whole of his estate therein, to be paid by the grantee. In 
 every such conveyance there was a tenure existing between 
 grantor and grantee even of the fee, and out of this tenure, and 
 as an incident thereof, whenever there was a rent reserved the 
 owner of the rent had the right to go upon the land and 
 distrain the grantee's goods and chattels, and satisfy himself 
 for the accrued and unpaid rent by a sale thereof. This right 
 of distress was enjoyed by the holder of a rent service, without 
 its being expressly reserved. 89 The Statute Quia Emptores 
 
 82 Washburn on Real Prop. 272; Co. Lit. 142 a. 
 89 In some States the right of distress for rent still exists, in a modi- 
 
 651
 
 460 RENTS. [PART n. 
 
 abolished all tenure between grantors and grantees of the fee, 
 so that at present a rent service cannot be reserved out of a 
 fee. 40 But this tenure does exist between reversioner or re- 
 mainder-man, and the tenant of a term of years, and therefore 
 a rent service may be reserved in a lease. 41 
 
 459. Rent charge and rent seek Fee farm rents. Rent 
 charge is that, the payment of which is made a charge upon 
 the land, but to which no right of distress was attached, unless 
 expressly granted or reserved. If the owner of the rent was 
 given this right, it was called a rent charge; if he did not 
 possess it, the rent was a mere dry rent, or rent seek, the 
 payment of which cannot be enforced by any seizure of the 
 property out of which it was to issue. 42 The characteristics of 
 these two kinds of rents, at present, present no dissimilarity 
 except in the matter of remedies for their enforcement, and 
 are generally known under the common name of fee-farm 
 rents, and are thus distinguished from rents service.** They 
 will, therefore, be treated together under that common appella- 
 tion. 
 
 460. How created. Fee-farm rents are created by any 
 form of conveyance which constitutes a valid transfer of other 
 incorporeal hereditaments. And they may be either reserved 
 by the owner of the land in the deed conveying the land, or 
 granted by him to a stranger, while he retains the land, 44 or 
 
 fied form. Stephens v. Hooks (Ga. 1905), 50 S. E. Rep. 119; Cum- 
 mings v. Smith, 114 111. App. 35. But see, Groesbeck v. Milling Co. 
 (Tex. 1905), 86 S. W. Rep. 346. 
 
 40 2 Washburn on Real Prop. 273 ; 3 Prest. Abst. 54 ; Van Rensselaer v. 
 Read, 26 N. Y. 563 ; Wallace v. Harmstad, 44 Pa. St. 495. 
 
 41 2 Washburn on Real Prop. 273; Williams on Real Prop. 247. 
 
 423 Prest. Abst. 55; 2 Bla. Com. 42; Williams on Real Prop. 329, 
 330; 2 Washburn on Real Prop. 273, 274; Cornell v. Lamb, 2 Cow. 652; 
 Wallace v. Harmstad, 44 Pa. St. 495. 
 
 433 Prest. Abst. 54; 2 Washburn on Real Prop. 273; Langford v. 
 Selmes, 3 Kay & J. 229 ; Williams on Real Prop. 333. 
 
 4*3 Prest. Abst. 53; 3 Cruise Dig. 273; Williams on Real Prop. 334; 
 652
 
 CH. XVII.] RENTS. 461 
 
 they may be acquired by prescription. 45 It may be granted in 
 fee, in tail, for life or for years, and there may be a grant o 
 the rent to one for a particular estate, with a remainder to 
 another. 46 But the rent will be only good so far as the estate 
 of the grantor extends. A tenant for life cannot grant a 
 rent for a longer period than his own life. 47 Once the rent 
 is created it is itself the subject of a grant or devise, and may 
 be carved up into any number of estates, as long as the fee 
 is not parted with. It descends to the heirs, and is capable of 
 being conveyed to uses and in trust. 48 The wife also may have 
 her dower or the husband his curtesy out of a rent held in fee 
 or in tail. 49 Fee-farm rents are not very common in this coun- 
 try. Indeed they are rarely met with in practice. But they 
 are valid limitations, and will receive the same recognition in 
 this country as is accorded to them in England. Whenever 
 used, they are resorted to for the purpose of securing to cer- 
 tain heirs their share in the inheritance without partitioning 
 the land, or for raising jointures for married women. 50 
 
 461. How extinguished or apportioned. If one having a 
 rent-charge acquires by purchase a part of the premises, out 
 of which the rent issues, the rent is wholly extinguished, since 
 
 Van Rensselaer v. Hays, 19 N. Y. 68; Ingersoll v. Sergeant, 1 Whart. 
 337. 
 
 "Wallace v. United Presb. Church, 111 Pa. St. 164. 
 
 2 Washbur on Real Prop. 275; Williams on Real Prop. 334; Van 
 Rensselaer v. Hays, 19 N. Y. 68 ; Van Rensselaer v. Read, 26 N. Y. 564. 
 
 47 Williams on Real Prop. 329 ; 2 Washburn on Real Prop. 277 ; 2 
 Dane's Abr. 452. 
 
 48 3 Prest. Abst. 53 ; 2 Washb. on Real Prop. 276 ; 3 Cruise Dig. 285, 
 292; Toan v. Pline, 60 Mich. 385; Trulock v. Donahue, 76 Iowa 758. 
 " Rents accruing before the death of the landlord do not inure to the 
 benefit of the heirs by descent." Coberly v. Coberly (Mo. 1905), 87 8. 
 W. Rep. 957. 
 
 42 Washburn on Real Prop. 276; 3 Cruise Dig. 291. 
 
 oo Scott v. Lunt, 7 Pet. 696; Adams v. Bucklin, 7 Pick. 121; Van 
 Rensselaer v. Platner, 2 Johns. Cas. 17; Williams Appeal, 47 Pa. St. 
 290; Farley v. Craig, 11 N. J. L. 262; 2 Washburn on Real Prop. 277, 
 278; Atkinson v. Orr (Ga.), 9 S. E. Rep. 787. 
 
 653
 
 462 RENTS. [PART n. 
 
 a rent-charge is not capable of apportionment. This rule is 
 the result of the repugnance entertained at common law to this 
 kind of rent. The rule is the same if he releases any portion 
 of the land from the charge. 61 But the rule is confined to 
 cases of acquisition by purchase. If a portion of the land is 
 acquired by descent, the rent will be apportioned. 52 The 
 owner of the rent may avoid the operation of this rule by 
 entering into a new agreement with the owner of the land. 
 Thus if the land is held by tenants in common, in case of 
 partition between them, the owner of the rent may by agree- 
 ment apportion the rent between them, or he may release a 
 portion of the land with the consent of the other land-owners. 53 
 These agreements, however, would virtually be new grants of 
 rent, and cannot technically be said to secure an apportion- 
 ment of the old rent. Although there can be no apportion- 
 ment of rent in case of a release, or transfer to the grantee, 
 of a part of the land charged with the rent, it can be divided 
 up indefinitely by the owner of the rent, and it can be 
 apportioned among the heirs of the grantee at his death, or 
 a part may be severed by levy of execution to satisfy the 
 debts of the grantee. 64 
 
 462. Remedies for the recovery of the rent. The ordi- 
 nary common-law remedy was that of distress. Upon failure 
 to pay the rent, the person entitled to payment could distrain 
 the tenant's personal property found upon the land, out of 
 which the rent issues. This right of distress was invariably 
 an incident to a rent service, but had to be expressly reserved 
 
 51 2 Washburn on Real Prop. 288 ; Co. Lit. 148 ; Williams on Real 
 Prop. 337; Dennett v. Pass, 1 Bing. (N. C.) 388; Parley v. Craig, 11 
 N. J. L. 262. 
 
 02 2 Washburn on Real Prop. 288 ; Williams on Real Prop. 337 ; Cruger 
 V. McLaury, 41 N. Y. 223. 
 
 BS Van Rensselaer v. Chadwick, 22 N. Y. 33 ; 2 Washb. on Real Prop. 
 289. 
 
 "Rivin v. Watson, 5 Mees. & W. 255; Farley v. Craig, 111 N. J. L. 
 262; Reyerson v. Quackenbush, 26 N. J. L. 236; Cook v. Brightly, 46 
 Pa. St. 440. See Williams v. Williams Co. (Ga. 1905), 50 S. E. Rep. 52. 
 654
 
 CH. XVII.] RENTS. 462 
 
 in the case of a rent charge. 56 In most of the States in this 
 country the right of distress has at some time been adopted 
 and enforced, as modified by Stat. 4, Geo. II, ch. 28, which 
 extended it to rents seek and rents charge, thereby abolishing 
 all distinction between them. 58 But it has never existed in 
 New England, and has now been abolished in New York and 
 several of the other States, while perhaps, everywhere the 
 remedy has been subjected to statutory changes and restric- 
 tions. 57 In addition to the right of distress, there is the ordi- 
 nary personal action against the tenant and his assigns for the 
 recovery of rent as it falls due. This remedy always exists 
 together with, or in the absence of, the right of distress. 58 In 
 the common-law pleading, the form of action varies with the 
 form of the deed, in which the rent is reserved or granted. If 
 the deed is an indenture, covenant will lie, if a deed poll, 
 assumpsit is the proper form of action, while the action of debt 
 will lie in most cases, whether the instrument be an indenture 
 or a deed-poll. 59 Sometimes, in the creation of a fee-farm 
 rent, a right of entry and forfeiture is granted, which Jurns 
 the estate into one upon condition. Or the right of entry 
 is only granted for the purpose of giving the posesssion of 
 the premises to the grantee of the rent, to re-imburse him- 
 self for the accrued rent out of the profits of the land. 
 
 55 2 Washburn on Real Prop. 278 ; 2 Shars. Bla. Com. 43 n. 
 
 se 2 Washburn on Real Prop. 278, 293 ; 3 Kent's Com. 472 ; Grant v. 
 Whitwell, 9 Iowa 154. 
 
 ST 2 Washburn on Real Prop. 278, 279 ; Guild v. Rogers, 8 Barb. 502 ; 3 
 Kent's Com. 473 n; 2 Dane's Abr. 451. 
 
 58 2 Washburn on Real Prop. 479 ; Swasey v. Little, 7 Pick. 296 ; Van 
 Rensselaer v. Read, 26 N. Y. 564; Van Rensselaer v. Dennison, 35 N. Y. 
 400. 
 
 58 2 Washburn on Real Prop. 281 ; Parker c. Webb, 3 Salk. 5 ; Hinsdale 
 r. Humphrey, 15 Conn. 433; Gale v. Nixon, 6 Cow. 445. See Smith v. 
 Borden (N. Y. 1904), 89 N. Y. S. 317, 96 App. Div. 236. "A notice 
 by a landlord to his tenant, under Rev. St. 1887, Sees. 5093, 5094, re- 
 quiring him to pay rent or surrender possession, describing the premises 
 and naming the amount due, is sufficient to sustain an action in unlawful 
 detainer." Hunter v. Porter (Idaho 1904), 77 Pac. Rep. 434. 
 
 655
 
 463 RENTS. [PART n. 
 
 Whether the entry results in a total or only a partial for- 
 feiture of the estate, the grantee can enforce his right to the 
 possession by the ordinary common-law action, by writ of 
 assize or by ejectment. 60 The remedies vary greatly, accord- 
 ing to the terms of each grant, and the local statute law of each 
 State. For a more detailed statement of the appropriate rem- 
 edies, the reader is referred to these statutes. 
 
 463. Liens arising from charges by will or by deed. 
 Charges upon land, similar in their effect as an incumbrance 
 upon lands to rent are held by equity to exist when specific 
 property, or property in general, included in a residuary de- 
 vise is conveyed or disposed of by will subject to or charged 
 with, the payment of debts, legacies, or annuities in favor of 
 some third party. The legal title to the property was con- 
 veyed or devised to the grantee or devisee subject to a lien or 
 incorporeal right in favor of the person to whom the legacy, 
 debt, or annuity is to be paid. This lien can be enforced 
 against the property subject to it in favor of the intended ben- 
 eficiary. These equitable liens may appear in deeds, as in the 
 case of marriage settlements and the like, but it is more com- 
 mon, and in this country it is rarely otherwise, to be found 
 in wills. 61 This lien may be enforced not only against the dev- 
 
 eo 2 Washburn on Real Prop. 279, 280; Co. Lit. 201, note 85, 202; Far- 
 ley v. Craig, 11 N. J. L. 262. See Stephenson v. Haines, 16 Ohio St. 
 478; Marshall v. Conrad, 5 Call. 364. " Where a tenant is in possession, 
 equity has no jurisdiction to enforce a forfeiture of a lease, the lessor 
 having an adequate remedy by ejectment." Johnson i\ Lehigh Valley 
 Traction Co. (U. S. C. C., Pa. 1904), 130 Fed. Rep. 932. "Where a 
 lessor reserves in the lease an option to terminate the lease on serv- 
 ice of a 30-day notice on breach of covenant, he is not thereby pre- 
 cluded from pursuing his remedy of forcible detainer, if a tenant fails 
 to pay rent when due." Hunter v. Porter (Idaho f904) 77 Pac. Rep. 
 434. 
 
 "Hill v. Bk. of London, 1 Atk. 618, 620; Bright v. Larcher, 4 De G. 
 
 4 J. 608 ; Markings V. Markings, 1 De G. F. & J. 355 ; Pearson v. Helli- 
 
 well, L. R. 18 Eq. 411; Hoyt v. Hoyt, 85 N. Y. 142; Horning v. Wieder- 
 
 spalen, 28 N. J. Eq. 387 ; Gardenville, etc., Assn. v. Walker, 52 Me. 452 ; 
 
 656
 
 CH. XVII.] RENTS. 464 
 
 isee, but also against the grantee, mortgagee and other sub- 
 sequent purchasers who take it with notice. 82 And the record 
 and probate of the will in which the charge is made is notice 
 to a subsequent purchaser of the equitable lien arising there- 
 from. 63 
 
 At one time this was the only way in which land could be 
 subjected to liability for the debts of the decedent owner, 
 and therefore the charge of the land by the will with the pay- 
 ment of the debts was a provision of the greatest importance 
 to creditors. But now all lands, as well as personal property, 
 are made generally liable for the satisfaction of the debts, 
 and the testamentary charge is only valuable to creditors so 
 far as such charge of the specific property with the payment 
 of specific debts gives to the particular creditors a special ex- 
 clusive lien for the satisfaction of their claims. Commonly, 
 and in order that any property may be subject to an equitable 
 lien in favor of the payment of debts or legacies, the intention 
 of the testator to so charge the property must either be ex- 
 pressly stated in the will so as to create an express charge upon 
 the property, or the charge upon the property must be implied 
 from the provisions of the will, or from the circumstances 
 surrounding the parties and the disposition of the property by 
 will; so that the lien may arise from express and implied 
 charges whenever the intention of the testator to so charge the 
 property can be clearly deduced from all the circumstances of 
 the case. 6 * 
 
 464. Liens by express charges. The testator may of 
 course by express terms charge the payment of his debts or 
 
 Siron v. Ruleman's Exr., 32 Gratt. 215; Burch v. Burch, 52 Incl. 136; 
 Rhoades v. Rhoades, 88 111. 139. 
 
 z Perkins v. Emory, 55 Md. 27; Donnelly v. Edcnlen, 40 Id. 117; 
 Blauvelt v. Van Winkle, 29 N. J. Eq. 111. 
 
 s Wilson r. Piper, 77 Ind. 437. 
 
 *Hoyt v. Hoyt, 85 N. Y. 142; Owens V. Clayton, 56 Md. 129; Steene 
 t;. Steele's Admr., 64 Ala. 438; Taylor v. Harwell, 65 Id. 1; Heslop t>. 
 Gatton, 71 111. 528; Kirkpatrick v. Chestnut, 5 S. C. 216. 
 
 42 657
 
 464 RENTS. [PART IT. 
 
 liens or of any one of them either upon the particular piece of 
 land, or upon the land in general disposed of in the residuary 
 devise. Whenever such intention is made plain by the lan- 
 guage of the will, these charges could be made upon both real 
 and personal property as well as upon the residue of personal 
 property which is given to the residuary legatee. No partic- 
 ular language is required to be used in creating the express 
 charge, provided the intention to so charge the property with 
 the payment of the legacy or debts is manifest in the will. 
 The express charges of property with the payment of the 
 debts and legacies may be divided into two classes. In 
 the first class will be found all those cases where the 
 testator devises the land or funds expressly for the pay- 
 ment of debts and legacies. In such a case the property de- 
 vised, or funds bequeathed, will be expressly charged with 
 the payment of the specified debts or legacies, but the devisee 
 or legatee will not be personally liable for the payment of such 
 debts or legacies. The only remedy in such a case for the 
 beneficiaries of the charge will be against the property which 
 has been charged with the payment of debts and legacies. On 
 the other hand, the second class cases will include all those 
 where the language employed charges the devisee or legatee 
 with the payment of a debt or legacy in consideration of a de- 
 vise or bequest to him. In such a ease the charge created not 
 only a lien upon the property devised or bequeathed, but like- 
 wise imposed a personal liability upon the devisee or legatee, 
 and the beneficiary of the charge can proceed against the devi- 
 see personally as well as against the subject-matter of the de- 
 vise. 65 
 
 es Gardenville, etc., Assn. v. Walker, 52 Md. 452 ; Frampton v. Blume, 
 129 Mass. 152; Birch v. Sherratt, L. R. 2 Ch. 644; Brook v. Beadley, 
 L. R. 4 Eq. 106, 3 Ch. 672. For liens for rent, under statute, the pro- 
 visions of the various State laws should be consulted. See, for example, 
 Staber v. Collins (Iowa 1904), 100 N. W. Rep. 527. 
 658
 
 CHAPTER XVIII. 
 
 LICENSES. 
 
 SECTION 465. What is a license? 
 
 466. Revocation of the license. 
 
 467. Revocation of license Continued. 
 
 468. How licenses are created. 
 
 465. What is a license? A license is an authority or 
 power to make use of land in some specific way, or to do cer- 
 tain acts or a series of acts upon the land of another. It dif- 
 fers from an easement in that it is not created by deed or by 
 prescription, and hence it is not a right or interest issuing out 
 of land, no jus in re; simply a naked authority. 1 A license 
 is a personal interest or right, which is terminated either by the 
 death of the licensor or licensee, or by the sale and transfer of 
 the land without notice of the license, and which cannot be 
 assigned without the consent of the licensor. 2 The licensee 
 must exercise his authority in a reasonably prudent manner, 
 
 i " A license is a personal privilege to do certain acts on the lands 
 of another, and is revocable at will." Howes v. Barmon ( Idaho 1905 ) , 
 81 Pac. Rep. 48; Taylor V. Waters, 7 Taunt. 374; Blaisdell V. Railroad, 
 51 N. H. 485; Wiseman v. Luckinger, 84 N. Y. 31; Mumford v. Whitney, 
 15 Wend. (N. Y.) 384; Post V. Pearsall, 22 Wend. (N. Y.) 425; Oliver 
 v. Hook, 47 Md. 301 ; Desloge v. Peace, 38 Mo. 588 ; Fuhr v. Dean, 28 
 Mo. 116; Dark v. Johnston, 55 Pa. St. 164; Foster v. Browning, 4 R. I. 
 47; Hazelton v. Putnam, 3 Pinn. (Wis.) 107; . c. 3 Chand. (Wis.) 117; 
 . c., 54 Am. Dec. 158; De Haro v. U. S., 5 Wall. (U. S.) 599; 2 Am. 
 Lead. Cas. (5 ed.) 549, note. 
 
 2 Wickham v. Hawker, F. M. & W. 77 ; Coleman v. Foster, 37 Eng. 
 Law & Eq. 489; Ruggles v. Lesure, 24 Pick. 187; Blaisdell v. Railroad, 
 51 N. H. 485; Jackson V. Babcock, 4 Johns. 418; Wolf v. Frost, 4 Sandf. 
 Ch. 93; Cox v. Levison, 63 N. H. 283. "A license, even if a considera- 
 tion is paid therefor, is revoked by the death of the licensor." Clark v. 
 Strong (N. Y. Sup. 1905), 93 N. Y. S. 514. 
 
 659
 
 466 LICENSES. [PART n. 
 
 and he will be held liable for all damages resulting from his 
 negligence or unskillf ulness ; but he will not be responsible for 
 any damage, which is but the natural consequence of the ex- 
 ercise of his authority. 8 
 
 4 So. Revocation of the license. Since the license does 
 not create any interest or estate in the land, as a general prop- 
 osition it would seem that the continued enjoyment of the li- 
 cense should depend upon the will of the licensor. But the 
 antagonism of interest and consequent loss, arising from the 
 grant and subsequent revocation of a license, have produced, 
 no little confusion in the decisions of the courts. As long 
 as the license remains executory there can certainly be DO 
 fixed indefeasable right to its enjoyment. The licensee has no 
 remedy by v/lr'ch he may e'njoin the licensor from prohibiting 
 the exercise of his license. 4 The power to revoke is undoubted. 
 So also is this the case with an executed license, where the 
 revocation will leave the parties in the same condition as they 
 were before the license was granted. Such would be the 
 case of a license to fish or hunt upon another's land, or to 
 witness some performance, as where one purchases a ticket 
 for the theater. All such licenses may be revoked at the will 
 of the licensor. And in the case of a theatrical performance 
 or other show, the licensee or ticket holder may be bidden to 
 leave, and ejected by force if he refuses to do so, even though 
 there is no valid cause for his removal. 5 But the revocation of 
 
 3 Selden v. Del. & Hud. Canal Co., 29 N. Y. 640; Pratt v. Ogden, 34 
 N. Y. 20; Kent v. Kent, 18 Pick. 569; Webb v. Paternoster, Palmer 71. 
 
 * Cook v. Stearns, 11 Mass. 533; Sterling v. Warden, 57 N. H. 217, 
 12 Am. Rep. 80; Dodge v. McClintock, 47 N. H. 483; Miller v. Au- 
 burn, etc., R. R., 6 Hill. 61; Veghte v. Rariton, 19 N. J. Eq. 154. In 
 the late case of Lytle v. James (73 S. W. Rep. 287), the Court of Ap- 
 peals, in Missouri, held that a license to mine granted such a pos- 
 sessory right to the licensee as would enable him to enjoin an inter- 
 ference with his rights, by third parties. For full discussion of licenses 
 to mine and transfer, enjoyment and revocation thereof, see White, 
 Mines & Min. Rem., Sees. 190 to 204, pp. 256-270. 
 
 6 Wood v. Leadbetter, 13 M. & W. 838; Coleman v. Foster, 37 Eng. 
 660
 
 CH. XVIII.] LICENSES. 466 
 
 the license will not be permitted to have a retroactive effect, 
 so as to make the acts done by the licensee upon the land be- 
 fore revocation a trespass, or to make him liable for dam- 
 ages flowing naturally from the exercise of his authority. 6 
 And if there is a valid subsisting contract for the grant and 
 exercise of the license, the revocation of the license will consti- 
 tute a breach of the contract, for which the licensor will be 
 liable in an action for damages. And so also, if in the ex- 
 ercise of the authority the licensee has taken property of his 
 own upon the land (as, for example, where he erects a build- 
 ing), or acquires a title to personal property formerly the 
 property of the licensor (as where the license is to go upon the 
 land and cut trees for his, the licensee's, own use), a reason- 
 able time must be given to the licensee within which x to remove 
 his property. To that extent, under such circumstances, is the 
 license irrevocable. The revocation does not vest in the li- 
 censor the property of the licensee found upon the land. 7 
 
 L. & Eq. 489; Hill v. Hill, 113 Mass. 103, 18 Am. Rep. 455; Desloge 
 v. Pearce, 38 Mo. 599. See Ford v. Whitlock, 27 Vt. 268; Quinn v. 
 Anderson, 70 Cal. 454, 11 Pac. 746; Totel v. Bounefoy, 23 111. App. 55, 
 123 111. 653, 24 N. E. Rep. 687; Williams V. Flood, 63 Mich. 487, 30 
 N. W. Rep. 93. Likewise, a license to cut trees is revocable. Hill v. 
 Hill, 113 Mass. 103, 18 Am. Rep. 455; Giles v. Simonds, 15 Gray 444; 
 Tillotson v. Preston, 7 Johns. 285; Westcott v. Delano, 20 Wis. 516; 
 Roffey v. Henderson, 17 Q. B. 586; Ward v. Rapps (Mich.), 44 N. W. 
 Rep. 934. 
 
 Hewlins v. Shippam, 5 B. & C. 221; Cook v. Stearns, 11 Mass. 533; 
 Bridges v. Purcell, 1 Dev. & B. 496. A licensee who continues to exer- 
 cise his license after revocation is a trespasser. White, Mines & Min. 
 Rem., Sec. 203 and cases. 
 
 'Wood u. Leadbetter, 13 M. & W. 856; Ashmun v. Williams, 8 Pick. 
 402; Churchill v. Hulbert, 110 Mass. 42, 14 Am. Rep. 578; Burk v. 
 Hollis, 98 Mass. 56; White v. Elwell, 48 Me. 360; Town v. Hazen, 51 
 N. H. 596; Smith t?. Goulding, 6 Cush. 155; Desloge v. Pearce, 38 Mo. 
 699. " Consent by the owner of the fee that an adjoining proprietor 
 may drain his land by cutting a ditch over the land of the one giving 
 the consent creates an irrevocable license, where the licensee, on the 
 faith of the license, expends money and erects valuable improvements 
 necessary to enjoy the license." Brantley v. Perry (Ga. 1904), 48 S. E. 
 Rep. 332. "A license is but a profit a prendre, and differs from an 
 
 661
 
 467 LICENSES. [PART n. 
 
 467. Revocation of license Continued. Where the li- 
 censee in the exercise of his license has been put to consider- 
 able expense, and a revocation of the license results in great 
 damage to the licensee, because of the impossibility to place the 
 parties in statu quo, whether the license can be revoked has 
 been differently decided. A large number of the courts have 
 held that such a license is, nevertheless, revocable, and the 
 revocation will not render the licensor liable to any action for 
 damages. 8 While, on the other hand, a number of the cases 
 maintain, on the equitable grounds of estoppel and part per- 
 formance of a contract, that the license is irrevocable in such 
 cases. 9 If the authority is connected with, or is exercised in 
 pursuance of, a contract for the grant of an easement, the li- 
 censee may prevent a revocation by an action for specific 
 performance of the contract for an easement. 10 But a simple 
 license, which is not in the nature of an executory contract 
 for the future grant of an easement, not being an incorporeal 
 hereditament or an estate in lands, is not an indefeasible fixed 
 right, and can therefore be revoked. Perhaps a failure to ob- 
 
 easement in that it can be held apart from the possession of the land." 
 Arnold v. Bennett, 92 Mo. App. at p. 159; Chitwood v. Lanyon Zinc Co., 
 93 Mo. App. 225; White, Mines & Min. Rem., Sec. 192. 
 
 s Cocker v. Cowper, 1 Cromp. M. & R. 418; Fentiman v. Smith, 4 
 East 107; Hetfield v. Centre R. R., 29 N. J. L. 571; Hazleton v. Put- 
 nam, 3 Chand. (Wis.) 117; St. Louis Nat. Stock Yards v. Wiggins 
 Ferry Co., 112 111. 380. 
 
 Rerick v. Kern, 14 Serg. & R. 267 ; Huff v. McCauley, 53 Pa. St. 
 209; Cook v. Prigden, 45 Ga. 331; Beatty v. Gregory, 17 Iowa 114; 
 Snowden v. Wilas, 19 Ind. 14. In others of the States, a middle 
 ground is taken, that the licensor cannot revoke the license until he has 
 re-imbursed the licensee for his expenditures. See Woodbury v. 
 Parshlly, 7 N. H. 237; Addison v. Hack, 2 Gill 221; Rhodes v. Otis, 33 
 Ala. 600, and cases cited supra from Iowa and Indiana. For revocation 
 of license to mine, see White, Mines & Mining Rem., Sec. 202. 
 
 10 Veghte v. Raritan Co., 19 N. J. Eq. 153; Williamston, etc., R. R. v. 
 Battle, 66 N. C. 546. " A verbal contract giving a railroad a right to 
 enter upon land and remove sand therefrom cannot be revoked by the 
 landowner by giving the railroad notice to leave the premises." Cox v. 
 St. Louis M. & S. E. Ry. Co. (Mo. App. 1905), 85 S. W. Rep. 989. 
 662
 
 CH. XVIII.], LICENSES. 467 
 
 serve this distinction has been the cause of the doubt and con- 
 fusion to be met with in the cases. 11 Perhaps the better rule 
 is that where the licensor revokes his license in violation of a 
 valid subsisting contract for its continuance, and thereby pro- 
 duces damage to the licensee, such damages should be, and are, 
 recoverable in an action for the breach of the contract. 12 But, 
 as a corollary to the above proposition, it may be suggested 
 that where the length of the enjoyment of the license is indefi- 
 nite, as where the license is to erect and maintain a house, 
 that being a bargain for a permanent interest in land in the 
 nature of an easement, it can be granted only in the way in 
 which such interests are required to be created, viz. : by deed, 
 and therefore no action for damages will lie for its revocation. 
 But a license upon sufficient consideration to cut and take 
 away a certain number of trees or to dig j!or minerals for a 
 specific time, and the like, are valid, subsisting contracts, and 
 the revocation of the license would be a breach of it, for which 
 the licensor may be held liable. 13 
 
 11 A further distinction, drawn from the law of Easements, would 
 serve to suggest the most rational doctrine. If the license only involves 
 the abandonment of the licenser's easement upon the licensee's land, and 
 imposes no direct burden upon the licenser's land, the license is irrevo- 
 cable, for an easement may be abandoned by parol. But if the license 
 involves the permanent use of the licenser's land, and structures arc 
 to be maintained upon it, since that is nothing more than the grant of 
 the easement, it may be revoked, if not granted by deed. This appears 
 to be the position of the Illinois courts. See Russell v. Hubbard, 59 
 111. 337 ; 2 Washburn on Real Prop. 636, 639. See also Winter v. Rock- 
 well, 8 East. 308; Hewlins v. Shippam, 5 B. & C. 221; Morse v. Cope- 
 land, 2 Gray 202; Dyer v. Sandford, 9 Mete. 395; Veghte v, Raritan 
 Co., 19 N. J. Eq. 153; Addison v. Hack, 2 Gill 211; Jamieson v. Mille- 
 man, 3 Duer 255; Hazleton t>. Putnam, 4 Chand. (Wis.) 124. "A 
 license to do certain acts on the lands of another may rest in parol." 
 Howes v. Barmon (Idaho 1905), 81 Pac. Rep. 48. 
 
 "Whitmarsh v. Walker, 1 Mete. 318; Giles v. Simonds, 15 Gray 444. 
 
 is " Except in extreme cases the court cannot determine as a mat- 
 ter of law whether the reasonable time within which the grantee of a tim- 
 ber privilege should exercise the same has or has not expired." Brinson 
 A Co. t>. Kirkland (Ga. 1905), 50 S. E. Rep. 369. See, for full discus- 
 
 663
 
 4(!8 LICENSES. [PART n. 
 
 468. How licenses are created. Licenses may be created 
 either by express agreement, by parol, 14 or they may be im- 
 plied from the inducements and representation of the land 
 owner. Thus, merchants, professional men and aritsans im- 
 pliedly give to the public a license to enter their places of busi- 
 ness for the purpose of transacting business. Such would also 
 be the case between persons sustaining social relations, in re- 
 spect to the right to enter each other's premises for the pur- 
 pose of visiting. 15 
 
 sion of licenses to mine and the late decisions on this particular license 
 in land, White, Mines & Min. Rem., Sees. 190, 204. 
 
 "Wood v. Leadbetter, 13 M. & W. 838; King v. Horndon, 4 M. & 
 Sel. 562 ; .Muskett v. Hill, 5 Bing. N. C. 694 ; Doolittle v. Eddy, 7 Barb. 
 
 is Martin V. Houghton, 45 Barb. 60 ; Adams v. Truman, 12 Johns. 408 ; 
 Gowan v. Phila. Exchange Co., 5 Watts & S. 141 ; Kay v. Penn. R. R., 65 
 Pa. St. 273; Sterling" v. Warden, 51 N. H. 231, 12 Am. Rep. 80. In 
 Alabama, a v.erbal license to mine or remove part of the corpus of the 
 estate, is void. Riddle v. Brown, 20 Ala. 412. See also Desloge v. 
 Peirce, 38 Mo. 595 ; Lunsford v. LaMotte, 54 Mo. 426. " In Utah it is 
 held, a mere verbal permission to mine, acted upon, cannot be revoked, 
 except by forfeiture for breach of condition." Ruffati V. Societe des 
 Mines, &c., 10 Utah 386, 37 Pac. Rep. 591. And see, also, Young r. 
 Ellis (Va. ), 21 S. E. Rep. 480. In the absence of express authority, a 
 license granted by the general manager of a corporation is void. Butte, 
 Ac., Co., I?. Ore Purch. Co., 21 Mont. 539, 55 Pac. Rep. 112; White, 
 Mines & Mining Rem., Sec. 194. 
 
 664
 
 PART III 
 
 TITLES 
 
 CHAPTER XIX. GENERAL CLASSIFICATION OF 
 
 TITLES. 
 
 XX. TITLE BY DESCENT. 
 
 XXL TITLE BY ORIGINAL ACQUISI- 
 TION. 
 
 XXII. TITLE BY GRANT. 
 
 XXIII. DEEDS, THEIR REQUISITES 
 
 AND COMPONENT PARTS. 
 
 XXIV. TITLE BY DEVISE. 
 XXV. REGISTRATION OF TITLES. 
 
 665
 
 CHAPTER XIX. 
 
 TITLES GENERAL CLASSIFICATION OF TITLES. 
 
 SECTION 469. What is title? By descent and purchase. 
 470. Original and derivative titles. 
 
 469. What is title? By descent and purchase. A title 
 is the means by which one may acquire a right of ownership in 
 things ; Justa causa possidendi quod nostrum est. 1 When ap- 
 plied to real property, titles may be divided into two general 
 classes, title by descent and title by purchase. Title by de- 
 scent is that title which one acquires by law as heir to the 
 deceased owner. It is cast upon the heir with or without 
 his consent. His assent is not necessary, and he cannot by 
 any disclaimer divest himself of the title so acquired. 2 Every 
 other kind of title, whether vested by act of the parties or by 
 operation of the law, is called a title by purchase. The party, 
 in whose favor it is created, must accept it in order that any 
 title may pass, either expressly or by acts which clearly indi- 
 cate his assent. But he cannot be compelled to accept unless 
 he has placed himself under obligations by a valid contract 
 of sale. 8 
 
 470. Original and derivative titles. Titles by purchase 
 may be again subdivided into original and derivative. An 
 
 1 Co. Lit. 345 b ; 3 Washburn on Real Prop. 1, 2 ; Bart, on Real Prop., 
 Sec. 314. 
 
 2 Co. Lit. 191 a, note 77, Sec. 5, 1; Bac. Law Tracts 128; 2 Bla. 
 Com. 201 ; Williams on Real Prop. 97 ; Womack v. Womack, 2 La. An. 
 339. But he may formally renounce in Louisiana. Reed v. Crocker, 12 
 La. An. 436. 
 
 3 Cruise Dig. 317; Co. Lit. 18 b, note 106; 4 Kent's Com. 373; Will- 
 iams on Real Prop. 96, 97; Nicholson v. Wardsworth, 2 Swanst. 365, 
 372. 
 
 667
 
 470 CLASSIFICATION OF TITLES. [PART III. 
 
 original title is one which is acquired solely by act of the party 
 claiming it, and is obtained by his entry into possession. It is 
 a general rule of both natural and civil law, that things under 
 dominion of no person may become the property of any one 
 by mere entry into possession, and it includes not only those 
 things which have never been under the dominion of any one, 
 but also those, the dominion over which has been lost or 
 abandoned. Derivative title is that by which property is 
 acquired from another, in whom the right of property has 
 been vested. It involves the idea of a transfer or assign- 
 ment of the right of property from one to another. This 
 transfer may be affected by act of the former owner, as by 
 conveyance inter vivos, or testamentary disposition, or it may 
 be by operation of law.* 
 
 * This subdivision is very generally used by the continental jurists 
 instead of the division of titles into descent and purchase. See Holtzen- 
 dorff's Encyclopaedic der Rechtswissenschaft, pp. 386-390. It is here 
 introduced in the belief that the distinction might serve to explain a 
 few difficult questions which arise in respect to several kinds of titles, 
 more notably titles by limitation and estoppel, as they are called by 
 the different authors. It will be observed that in the present work 
 they are not considered as modes of acquiring titles only modes of 
 perfecting titles already acquired by destroying or nullifying other 
 outstanding rights or titles in other persons. See post, Sees. 507, 513, 
 514. 
 
 668
 
 CHAPTER XX. 
 
 TITLE BY DESCENT. 
 
 SECTION 471. Definition. 
 
 472. Lex loci rei sitce. 
 
 473. Consanguinity and affinity. 
 
 474. How lineal heirs take. 
 
 475. Lineal consanguinity in the ascending series. 
 
 476. Collateral heirs. 
 
 477. Computation of collateral relationship. 
 
 478. Ancestral property. 
 
 479. Kindred of the whole and half blood. 
 
 480. Advancement Hotchpot. 
 
 481. Posthumous children. 
 
 482. Illegitimate children. 
 
 483. Alienage a bar to inheritance. 
 
 471. Definition. Title by descent is that title, by which 
 one acquires, by operation of law, upon the death of the owner, 
 the estates of inheritance, which the deceased has not dis- 
 posed of in any other manner. The person from whom the 
 property descends is called the ancestor. 1 The person who 
 is appointed by the law to take the estates is called the heir. 
 Technically, one who takes property under a will is not an 
 heir. And the word heir is also confined to those persons who 
 take the real estate. One cannot be an heir to personal prop- 
 erty. 2 The heirs cannot be ascertained until the death of the 
 ancestor. Nemo est hceres viventis. 3 The heir never takes in 
 
 i In that sense a child might be the ancestor of his parents, a grand- 
 child the ancestor of his grandparents. 3 Washburn on Real Prop. 18; 
 Prickett v. Parker, 3 Ohio St. 390; Williams on Real Prop. 105. This 
 was opposed to the common law, according to which " the inheritance 
 lineally descends, but never lineally ascends." See post, Sec. 475. 
 
 2Bac. Law Tracts 128; Co. Lit. 191 a, note 77; Donahue's Estate, 36 
 Cal. 329 ; Lincoln v. Aldrich, 149 Mass. 368. 
 
 82 Bla. Com. 208; 3 Washburn on Real Prop. 6; Wllinms on Real 
 
 G69
 
 471 TITLE BY DESCENT. [PART III. 
 
 pursuance of the deceased owner's intention or will; conse- 
 quently no one, who by law is entitled to the property as 
 heir, can be shut out from his inheritance by any act of the 
 ancestor, unless such act amounts to a disposition of the 
 property by will. 4 And even where a will, disposing of all the 
 ancestor's property, is produced, if it be shown that the omis- 
 sion of the name of an heir, especially if it be a child or a 
 grandchild, is the result of an accident, and that the testator 
 fully intended that he also should take under the will, such 
 heir will be permitted to take the share of the estate to which 
 he would have been entitled if the ancestor had died intestate. 
 And in the absence of direct proof of the testator's intention, 
 the failure to mention the particular heir will raise the pre- 
 sumption that the omission was accidental. 5 Immediately 
 upon the death of the ancestor, the title to all his estates of 
 inheritance vests in the heirs, subject to the widow's dower 
 and husband's tenancy by the curtesy, and the claims of 
 the ancestor 's creditors. 6 And if lands have to be sold for any 
 purpose, the proceeds of sale would descend as real estate, 
 
 Prop. 96. But in common parlance persons are recognized as possible 
 heirs to a certain individual if they should survive him. And in view of 
 the existence of this possibility, the common law made use of the two ex- 
 pressions, heirs presumptive, and heirs apparent. An heir presumptive 
 is one who would be the heir if the ancestor were to die at the contem- 
 plated time, but whose possibility of inheritance may be destroyed by 
 the birth of some one more nearly related, as well as by his death be- 
 fore the ancestor. An heir apparent was one who was sure to inherit, 
 if the ancestor died in his life-time. These terms are of no practical 
 importance, as no rights of property are acquired by such parties which 
 the law in any way recognizes. Gardner V. Pace (Ky), 11 S. W. Rep. 
 779. See Lockwood v. Jessup, 9 Conn. 228. 
 
 * Augustus v. Seabolt, 3 Mete. (Ky.) 161; Roosevelt v. Fulton, 7 
 Cow. 71. 
 
 5 Beck v. Metz, 25 Mo. 70; Gage v. Gage, 29 N. H. 533; Bancroft f. 
 Ives, 3 Gray 367; Shelby V. Shelby, 6 Dana 60; Bradley V. Bradley, 24 
 Mo. 311. 
 
 Willis v. Watson, 5 111. 64; Hays V. Jackson, 6 Mass. 149; Cowell 
 v. Weston, 20 Johns, 414; Hillhouse V. Chester, 3 Day 166. See contra, 
 Telfair v. Roe, 2 Cranch 407; Albriton v. Bird, R. M. Charlt. 93. 
 670
 
 CH. XX.] TITLE BY DESCENT. 473 
 
 to the persons who would have inherited the lands. 7 He is 
 entitled to the rents and profits to the estate until sold for 
 the benefit of the creditors, even though the estate is insolv- 
 ent. 8 The heir need not offer proof that his ancestor died 
 intestate. Intestacy is presumed until a will is produced. 8 
 
 472. Lex loci rei sitse. The descent of real property is 
 governed by the law of the place where the land is situated, 
 the lex loci rei sitoe. The law of the domicile, lex domicilii, 
 does not apply to real property. And that law of descent gov- 
 erns, which was in force at the decease of the ancestor. 10 The 
 law of descent varies according to the civil polity of each 
 State, or, as Blackstone has it, it is ' ' the creature of civil polity 
 and juris positivi." In every State of the American Union 
 there is a statute regulating the descent of real property, and 
 for any special questions arising under the law of descent 
 reference must be had to the statute of the State in which 
 the land lies. But these statutes have many points in com- 
 mon, and are controlled by certain general principles which 
 may be collated and presented in a work of this character. 
 But for the minor details of the law, the inquirer must look 
 to the State statutes, an excellent compendium of which may 
 be found in the third volume of Mr. Washburn's Treatise on 
 the Law of Real Property. 11 
 
 473. Consanguinity and affinity. Only those persons can 
 claim as heirs of a deceased intestate who are in some way re- 
 lated to him. Relationship is of two kinds, consanguinity and 
 
 7 Wells v. Seeley, 47 Hun 109 ; Thompson's Estate, 6 Mackey 536 ; In 
 re McCabe, 15 R. I. 330, 5 Atl. 79. 
 
 s Gibson v. Farley, 16 Mass. 280; Boynton v. Peterborough, etc., R. 
 R. Co., 4 Cush. 467; Allen v. Van Houton, 19 N. J. L. 47. Contra, 
 Branch Bk. V. Fry, 22 Ala. 790. 
 
 Lyon v. Kain, 36 111. 368; Baxter v. Bradbury, 20 Me. 260; Stephen- 
 son v. Doe, 8 Blackf. 508. 
 
 10 Story on Confl., Sec. 484; Potter v. Titcomb, 22 Me. 300; Emmert 
 v. Hays, 88 111. 11; Brewer v. Cox (Md.), 18 Atl. Rep. 864. 
 
 11 3 Washburn on Real Prop., p. 21 et sub. 
 
 671
 
 473 .TITLE BY DESCENT. [PART HI. 
 
 affinity. Consanguinity is that relationship which arises from 
 a community of blood, and exists between persons who are de- 
 scended from a common ancestor. This common ancestor is 
 called the stirps, or root. Consanguinity is again divided into 
 lineal and collateral. .Lineal consanguinity exists between 
 persons who descend one from the other in the direct or single 
 line of descent. Father, grandfather, etc., in the ascending 
 series, and son, grandson, etc., in the descending series, are 
 related by lineal consanguinity. Collateral consanguinity is 
 where the relationship is traced through different lines of de- 
 scent up to the common ancestor. Thus, brothers, cousins, 
 nephews, and uncles, etc., are related by collateral consan- 
 guinity, respectively^ through the common father and grand- 
 father. 12 Affinity is the relationship created between parties 
 by marriage, either of themselves, or of their respective rela- 
 tives. Thus, husband and wife, and their respective fathers 
 and mothers-in-law, and the like, are related by affinity. At 
 common law only kindred by consanguinity could inherit from 
 the deceased. And this rule was so strictly observed that 
 even the husband or wife could not lay claim to the prop- 
 erty of each other as heir. It would be escheated to the 
 State instead of vesting in such relations. 13 But at the pres- 
 ent day, in a large number of the American States, hus- 
 band and wife are made capable by statute of inheriting from 
 each other. IH some States they inherit equally with the 
 children and the descendants of deceased children, while in 
 others they inherit only in the absence of lineal descendants, 
 and in some they are even postponed to collateral heirs. 14 
 
 12 Ante, idem, pp. 9 & 10; 2 Bla. Com. pp. 202, 206. 
 
 isBla. Com. 246. See Esty v. Clark, 101 Mass. 36, 3 Am. Rep. 320; 
 Lord V. Bourne, 63 Me. 368, 18 Am. Rep. 234; Cleaver v. Cleaver, 39 
 Wis. 96, 20 Am. Rep. 30. 
 
 n See Shaw r. Breeze, 12 Ind. 392; Nicholas V. Parczell, 21 Iowa 265. 
 Statutory rules of this character are to be found in Alabama, Arkansas, 
 California, Dakota, Georgia, Illinois, Iowa, Massachusetts, Maryland, 
 Michigan, Minnesota, Missouri, North Carolina, Nebraska, Pennsyl- 
 vania, Rhode Island, South Carolina, Vermont, Wisconsin. 3 Washburn 
 672
 
 CH. XX.] TITLE BY DESCENT. 474 
 
 474. How lineal heirs take. According to the common 
 law, the real estate descended to the eldest son, to the exclusion 
 of the other sons and daughters; and if there be no sons 
 then the daughters inherited in equal shares. This was known 
 as the law of primogeniture. 16 And even where according to 
 local custom, as was the case with lands held by tenure of gav- 
 el kind, the law of primogeniture did not prevail, the sons 
 would inherit equally to the exclusion of the daughters and 
 their descendants. 16 But neither of these English rules has 
 ever been in force in this country, and the universal rule is 
 that the lineal descendants in the descending series inherit 
 equally, no distinction being made between males and fe- 
 males. 17 If the lineal descendants are all in the same de- 
 gree removed from the intestate ancestor, they will inherit 
 equally, and are said to take per capita. But if they are re- 
 moved in different degrees, or where they consist of a son, 
 or daughter, and the children of a deceased son or daughter, 
 the children would inherit only that share of the deceased's 
 estate to which their father or mother would have been en- 
 titled, if he or she had survived the deceased. Thus, in the 
 given case, the estate would be divided into two equal parts, 
 the surviving son or daughter taking the one part, while the 
 other part would be divided among the children of the de- 
 
 on Real Prop. 21, note. " A plural wife does not acquire the status 
 of a lawful wife, and is without the pale of the law of inheritance as 
 to any property which her husband has acquired previous to her 
 marriage or which he may thereafter acquire." Raleigh V. Wells (Utah 
 1905), 81 Pac. Rep. 908; Mutual Inv. Co. v. Raleigh, Id. See Castleman 
 r. Castleman (Mo. 1904), 83 S. W. Rep. 757; La Grange Mills v. Kener 
 (N. C. 1904), 49 S. E. Rep. 300. 
 
 "3 Washburn on Real Prop. 7; 1 Spence Eq. Jur. 175, 176; 2 Bla. 
 Com. 214, 215. 
 
 i 3 Washburn on Real Prop. 7 ; 2 Bla. Com. 234 ; 2 Bla. Com. 84. 
 
 3 Washburn on Real Prop. 8, 9, 12 ; Walker's Am. Law 353 ; 4 Kent's 
 Com. 378. In respect to the equality of inheritance by lineal heirs, the 
 American law bears a close resemblance to the Roman law of descent. 
 Coop. Just. 543. See, Smith t?. McDonald (N. J. 1905), 61 Atl. Rep. 
 453. 
 
 673
 
 476 TITLE BY DESCENT. [PART III. 
 
 ceased child. This is called inheritance per stirpes, or by rep- 
 resentation. At common law all lineal descendants took per 
 stirpes, but the rule in this country is generally limited to the 
 case of descendants of unequal degrees of removal from the 
 ancestor. 18 
 
 475. lineal consanguinity in the ascending series. It 
 was a canon of the common law that the inheritance could 
 never fall to persons related to the deceased in the ascend- 
 ing series. Thus, parents, grandparents, etc., of the deceased 
 could not inherit. 19 If, therefore, there were no lineal de- 
 scendants, i. e., issue, the property would have descended to 
 the collateral kindred to the exclusion of the lineal relations 
 in the ascending line. 20 But this rule has now generally been 
 changed by statute, and the lineal heirs in the ascending series 
 will take in preference to collateral kindred. 21 
 
 476. Collateral heirs. But if there be no lineal descend- 
 ants, and no lineal heirs in the ascending line, or no statute; 
 permitting such heirs to inherit, the estate descends to the 
 collateral kindred in the nearest degree of relationship to the 
 
 "Chase. Bla. Com. 389, n, 6; Walker's Am. Law 354; 4 Kent's Com. 
 379, 391, 408; 3 Washburn on Real Prop. 12, 13. See Skinner v. Fulton, 
 39 111. 484; Den v. Smith, 2 N. J. L. 7. 
 
 i 33 Washburn on Real Prop. 10 ; 2 Bla. Com. 208, 209. 
 
 203 Washburn on Real Prop. 11; 2 Bla. Com. 209; Taylor v. Bray, 32 
 N. J. L. 182. 
 
 21 Williams on Real Prop. 105, 106; Morris V. Ward, 36 N. Y. 587; 2 
 Bla. Com. 220; 4 Kent's Com. 395 n; Smallmann v. Powell, 18 Or. 367, 
 23 Pac. Rep. 249; Power V. Daugherty, 83 Ky. 187. The rule is estab- 
 lished by statute in Alabama, Arkansas, California, Connecticut, Da- 
 kota, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Ken- 
 tucky, Louisiana, Maine, Massachusetts, Maryland, Michigan, Minne- 
 sota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, 
 New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, 
 Texas, Tennessee, Vermont, Virginia, Wisconsin. 3 Washburn on Real 
 Prop. 21, note. But see Morse V. Hayden, 82 Me. 227, 19 Atl. Rep. 443; 
 Smith v. McDonald (N. J. 1905), 61 Atl. Rep. 453. 
 
 674
 
 CH. XX.] TITLE BY DESCENT. 477 
 
 deceased. 22 And at common law the doctrine of inheritance 
 per stirpes, or by representation, as above explained, was ap- 
 plied to collateral kindred ad infinitum; but the doctrine in 
 the United States has generally been- limited in its applica- 
 tion to the descendants of brothers and sisters, while in the' 
 case of all other collateral kindred the inheritance is divided 
 per capita. 23 
 
 477. Computation of collateral relationship. There are 
 two modes of computing the degree of collateral relationship ; 
 one according to the canon and common law, and the other 
 according to the civil or Roman law. By the first rule the re- 
 lationship is ascertained by counting the number of degrees or 
 generations accruing between the common ancestor and the 
 most remote descendant. According to this mode of computa- 
 tion, first cousins are related in the second degree; so also 
 are nephews and uncles. The civil rule is to count the num- 
 ber of degrees or generations between the deceased and the 
 common ancestor, and down again to the descendant, whose- 
 relationship with the deceased is in question. Thus, by this 
 mode, brothers would be related in the second degree, cousins 
 in the fourth, and nephew and uncle in the third. 2 * In the 
 American States the civil mode of computation is generally 
 adopted by the courts, while in some of the States it is by 
 statute made the rule of computation. 25 
 
 222 Bla. Com. 220; 3 Washburn on Real Prop. 11; Williams on Real 
 Prop. 106. 
 
 aaQuinby f. Higgins, 14 Me. 309; Levering v. Highee, 2 Md. Ch. 81; 
 Skinner v. Fulton, 39 111. 484. This limitation is established by statute 
 in Alabama, California, Connecticut, Delaware, Georgia, Maine, Massa- 
 chusetts, Mississippi, Michigan, Minnesota, Maryland, Wisconsin, New 
 Hampshire, New Jersey, Oregon, South Carolina, Tennessee, Vermont. 
 See Swazey v. Jaques, 144 Mass. 135; Fletcher v. Severs, 10 N. Y. S. 6. 
 In Pennsylvania the rule is more extended, but not unlimited. 3 Wash- 
 burn on Real Prop. 21, note. See Logon v. Bean's Admr. (Ky. 1905), 87 
 S. W. Rep. 1110; In re N. Y. Sec. & Tr. Co., 94 N. Y. S. 93, 46 Misc. Rep. 
 224. 
 
 2* 3 Washburn on Real Prop. 10 ; 2 Bla. Com. 206, 207. 
 
 26 3 Washburn on Real Prop. 10 ; McDowell t?. Adams, 45 Pa. St. 430 ; 
 
 675
 
 479 TITLE BY DESCENT. [PART III. 
 
 478. Ancestral property. This term, when used in the 
 law of descent, signifies the property which the intestate 
 himself acquires by descent. 26 Where the property is acquired 
 by purchase by the intestate, since the common-law preference 
 of males over females does not prevail here, all the collateral 
 kindred of equal degree would inherit alike, whether they 
 are paternal or maternal relatives. But according to the 
 common law, no one could be heir to ancestral property, un- 
 less he is likewise the heir of the last purchaser. 27 But in 
 the United States it would seem that no such distinction is 
 made between property acquired by purchase and by de- 
 scent, unless expressly established by statute. In Indiana, 
 Maryland, Ohio, Pennsylvania, Rhode Island and New York, 
 statutes provide that ancestral property descends to kindred 
 of the blood of the ancestral purchaser in preference to other 
 kindred, but the latter inherit, if there be no heirs of the an- 
 cestral purchaser's blood. 28 
 
 479. Kindred of the whole and half blood. At common 
 law the inheritance could only vest in kindred of the whole 
 blood, i. e., persons descended not merely from a common an- 
 cestor, but from a common couple of ancestors. Kindred of 
 the half blood could not inherit, even where there were no 
 kindred of the whole blood. 29 Probably in no State of the 
 
 Smallman v. Powell, 18 Or. 367, 23 Pac. Rep. 249. Regulated by statute 
 in Maine, Massachusetts, Minnesota, Michigan, Mississippi, Oregon, 
 Wisconsin. 3 Washburn on Real Prop. 21, note. 
 
 2 Walker's Am. Law. 354. 
 
 -~ 2 Bla. Com. 220 ; 3 Washburn on Real Prop. 1 1 ; Williams on Real 
 Prop. 100, 101. 
 
 23 Washburn on Real Prop. 21, note; Kelsey v. Hardy, 20 N. H. 
 479; Shepard v. Taylor, 15 R. I. 204, 3 Atl. Rep. 382. See Kelly v. 
 McGuire, 15 Ark. 555 ; Hyatt v. Pugsley, 33 Barb. 373 ; Pease v. Stone, 
 77 Tex. 551, 14 S. W. Rep. 161; Powers v. Dougherty, 83 Ky. 187. 
 
 29 2 Bla. Com. 227. The only exception was where the deceased was 
 not actually seised, and the person last seised was the common an- 
 cestor of the kindred of half blood, such kindred could inherit, not as 
 heir to the deceased, but as heir to the common ancestor, in conformity 
 676
 
 CH. XX.] TITLE BY DESCENT. 480 
 
 American Union are kindred of the half blood absolutely ex- 
 cluded from inheriting. 30 In some States no distinction is 
 made between whole and half blood, while in others the half 
 blood are postponed in the inheritance to the whole blood 
 of equal degree of relationship. 31 In a still larger number of 
 the States it is provided by statute that kindred of the half 
 blood shall not inherit the ancestral property of the intes- 
 tate, unless they are of the blood of the ancestral purchaser. 32 
 
 480. Advancement Hotchpot. In effecting a distribu- 
 tion of the estate among the heirs, if any one of the heirs re- 
 ceived a part of the ancestor's estate during his lifetime, it is 
 required that the same be considered as a part of the estate 
 of the deceased, and be deducted from the share such heir 
 was entitled to, under the law of descent. In determining the 
 share of each, the property so advanced is added to the rest 
 of the estate, and the division is then made by dividing the 
 aggregate amount equally among the heirs, the amount -ad- 
 vanced being treated as a part of the share of the heir, to 
 whom it was given. In the curious etymology of the common 
 law this doctrine was called ''hotchpot." 32 The doctrine is 
 
 with the common-law rule that only the heirs of the person last seised 
 could inherit. 2 Bla. Com. 227. 
 
 so 3 Washburn on Real Prop. 15 ; Chase's Bla. 393, n. 8. 
 
 si They inherit equally in Maryland, Indiana, North Carolina and 
 Tennessee. Lowe v. Maccubben, 1 Harr. & J. 550; Moore v. Abernathy, 
 7 Blackf. 442. Half blood postponed to whole blood by statute in 
 England, Connecticut, Delaware, Pennsylvania, South Carolina, New 
 Jersey, Mississippi and Texas. Clark v. Pickering, 16 N. H. 289; 
 Hulme V. Montgomery, 31 Miss. 105; 3 Washburn on Real Prop. 21, 
 note. In Missouri and Kentucky the half blood take only one-half 
 of what descends to the whole blood. Talbot v. Talbot, 17 B. Mon. 1 ; 
 Petty v. Malier, 15 B. Mon. 591. 
 
 32 The rule prevails in Alabama, Arkansas, California, Connecticut, 
 Delaware, Georgia, Illinois, Indiana, Maine, Massachusetts, Maryland, 
 Michigan, Minnesota, New Jersey, New York, Ohio, Oregon, Tennessee, 
 Wisconsin. 3 Washburn on Real Prop. 21, note; 4 Kent's Com. 400; 
 Dannor V. Shissler, 31 Pa. St. 289; Sheffield V. Lovering, 12 Mass. 490; 
 Armington v. Armington, 28 Ind. 74; Pennington v. Ogden, 1 N. J. L.- 
 
 677
 
 480 TITLE BY DESCENT. [PART III. 
 
 now more commonly understood under the term advance- 
 ment. In order, however, that the doctrine may apply, it 
 must be established by competent evidence, and in some of the 
 States certain modes of proof are prescribed and rendered 
 necessary by statute, that the gift inter vivos was intended 
 to be treated as an advancement. 33 A simple gift, without 
 proof of such an intention, will be considered an absolute 
 gift, and cannot affect the donee's right to an equal share in 
 the deceased's estate. 3 * But in no case can the donee be com- 
 pelled to bring in his advancement for a redistribution. If, 
 therefore, his advancement is of greater value than his share 
 in the estate would be, he may refuse to bring it in, and 
 thereby renounce his claim as an heir. 35 
 
 192. In New Jersey they inherit of each other only the property derived 
 from a common ancestor. Den f. Urison, 2 N. J. L. 212; Den v. Jones, 
 8 N. J. L. 340. 
 
 as "It seemeth that this word hotch-pot is in English a pudding; for 
 in a pudding is not commonly put one thing alone, but one thing with 
 other things together." Littleton, quoted by Blackstone. 2 Bla. Com. 
 190. But in the early common law the doctrine was made to apply 
 to only those estates which were given to a daughter in frank-marriage 
 a species of estates tail, settled upon a woman at her marriage. 
 Property so donated raised the conclusive presumption that it was 
 intended as an advancement. 2 Bla. Com. 191. The doctrine is now 
 applied to all kinds of advancements where it has not been abolished 
 by statute. 
 
 34 See Chadsey v. Chadsey, 26 111. App. 409 ; In re Robert's Estate, 
 111 N. Y. 372; Noel's Admr. v. Noel's Admr. (Va.), 9 S. E. Rep. 584; 
 Ritch r. Hawxhurst, 114 N. Y. 512; Re Robert, 4 Dem. 185; Kintz v. 
 Friday, 4 Dem. 540; White v. Moore, 23 S. C. 456; Hill v. Bloom, 41 
 N. J. Eq. 276; Harper v. Harper, 92 N. C. 300; Wilson v. Kelly, 21 
 S. C. 535; Simpson f. Simpson, 114 111. 603; Long . Long, 19 111. 383; 
 McClintock's Appeal, 58 Mich. 152; Catoe v. Catoe (S. C.),. 10 S. E. 
 Rep. 1078; Sadler v. Huffhines (Ky.), 12 S. W. Rep. 715; Smith V. 
 Brown, 66 Texas 543, 1 S. W. Rep. 573 ; Long v. Long, 30 111. App. 559. 
 " Advancements made during the lifetime of the decedent will not be 
 presumed to be intended as gifts, without evidence to that effect." 
 In re Robinson (N. Y. Sur. 1904), 92 N. Y. S. 967, 45 Misc. Rep. 551. 
 But see, In re Ogden's Est., 211 Pa. 247, 60 Atl. Rep. 785; Brennoman 
 V. Scheel, 212 111. 356, 72 N. E. Rep. 412. 
 
 353 Washburn on Real Prop. 20; 4 Kent's Com. 418, 419; Clark v. 
 678
 
 CH. XX.] TITLE BY DESCENT. 482 
 
 A gift by a father to his daughter's husband will be 
 treated as an advancement to her, if such was the father's 
 intention. 36 
 
 481. Posthumous children. The common law did not 
 treat children en venire sa mere as persons in esse for the pur- 
 pose of holding or acquiring property. This capacity only at- 
 tached upon their birth alive. Consequently, by the old com- 
 mon law, children born after the death of the ancestor were 
 precluded from participating with the others in the distri- 
 bution of the intestate's estate. But this harsh rule has now 
 been generally changed by statute, and posthumous children 
 in the United States inherit equally with those born during the 
 life of the ancestor. 37 
 
 482. Illegitimate children. It is also a common-law rule 
 that illegitimate children have no inheritable blood, and can 
 neither inherit nor have heirs, except lineal descendants in 
 the descending series. Bastards, therefore, could have neither 
 collateral nor lineal heirs in the ascending line. 38 And the 
 
 Fox, 9 Dana 193; Elliot's Estate v. Wilson, 27 Mo. App. 218 (Mo.), 11 
 S. W. Rep. 739. The doctrine is expressly recognized and regulated by 
 statute in Maine, Massachusetts, Vermont, California, Oregon, Wis- 
 consin, Michigan, Minnesota, New Hampshire, New York, Alabama, 
 Arkansas, Dakota, Ohio, Rhode Island, Connecticut, New Jersey, Penn- 
 sylvania, Virginia, North Carolina, Georgia, Mississippi, Texas, Florida, 
 Illinois, Kansas, Kentucky, Missouri, Indiana, Tennessee and Mary- 
 land. 3 Washburn on Real Prop. 40, note, 
 ae Bruce v. Slemp, 82 Va. 352. 
 
 8*4 Kent's Com. 412; Harper v. Archer, 4 Smed. & M. 99; Den v. 
 Flora, 8 Ired. 374; Cox v. Matthews, 17 Ind. 367; Haskins v. Spiller, 
 1 Dana 170; Harper v. Archer, 12 Miss. 99. Statutes modifying the 
 common-law rule exist in most of the States in the Union. 3 Wash- 
 burn on Real Prop. 44, note. In Alabama, Arkansas, Missouri, and 
 Texas the doctrine applies only to the posthumous children of the intes- 
 tate. Ala. Code (1867), Sec. 1893; Ark. Dig. Stat. (1858), Ch. 50, 
 Sec. 2; Mo. Gen. Stat. (1866), p. 518, Ch. 129, Sec. 2. 
 
 82 Bla. Com. 247, 248, 249; 2 Kent's Com. 212; Cooley v. Dewey, 4 
 Pick. 93; Barwick v. Miller. 4 Desau. 434; Stover v. Boswell, 3 Dana 
 233; Bent v. St. Vrain, 30 Mo. 268. 
 
 679
 
 [ -132 TITLE BY DESCENT. j .'.... i.L 
 
 agreement of the putative father with the mother that their 
 bastard child shall participate in the inheritance does not 
 give the child any claim against the estate in the absence of 
 statutory provision. 39 But by statute, in a large number of 
 the American States, an illegitimate child is now permitted 
 to inherit from the mother, and its maternal ancestors, and 
 the mother, and in some States, its brothers and sisters, from 
 the child. But it would seem likely that the illegitimate child 
 could only inherit from the mother, where there are no legit- 
 imate children. 40 But a number of the States have adopted 
 the rule of the civil law, that the subsequent marriage of the 
 parents of a child born out of wedlock legitimizes such off- 
 spring for all purposes, and enables it to inherit equally with 
 the children born after the marriage. However, the statutes 
 generally require the putative father to acknowledge such a 
 child, in order that the subsequent marriage may produce le- 
 gitimation. 41 
 
 so Willoughby v. Motley, 83 Ky. 297. 
 
 40 See Coe v. Bates, 6 Blackf. 533; Ellis V. Hatfield, 20 Ind. 101; 
 Stover v. Boswell, 3 Dana 233. Statutes to this general effect are to be 
 found in Massachusetts, Indiana, Mississippi, Texas, Vermont, Alabama, 
 New Hampshire, Illinois, Rhode Island, Pennsylvania, Virginia, Ken- 
 tucky, Florida, Arkansas, Iowa, Missouri, New York, Maryland, Kansas, 
 Ohio and Georgia. Williams on Real Prop. 126 n, 2; 3 Washburn on 
 Real Prop. 41, note; Brown V. Dye, 2 Root 280. In New Hampshire, by 
 express statutory provision, illegitimate children inherit equally with 
 legitimate children; while in New York, they are expressly precluded 
 from inheriting if there be legitimate issue. Gen. Stat. N. H. (1867), 
 Ch. 184, Sees. 4, 5; N. Y. Laws of 1855, Ch. 547; 1 R. S. 754, Sec. 19. 
 Under the Mississippi statute they inherit equally. Alexander v. Alex- 
 ander, 31 Ala. 241. But wherever the statute does not expressly, or 
 by necessary implication, remove the common-law incapacity, the com- 
 mon law still prevails. A statute making an illegitimate child heir to 
 its mother does not enable it to inherit from its brothers, or transmit its 
 own estate by descent to its mother. Stephenson's Heirs v. Sullivan, 
 5 Wheat. 260 ; Little et al. V. Lake, 8 Ohio 290 ; Remington r. Lewis, 
 8 B. Mon. 606. See, as to administrator's duty in final settlements, 
 to have citation for illegitimate children, In re Losee's Est., 94 X. Y. 
 S. 1182, (1905) 46 Misc. Rep. 363. 
 
 41 Such statutes have been enacted in Massachusetts, Vermont, Mary- 
 
 680
 
 CH. XX.] TITLE BY DESCENT. 483 
 
 483. Alienage, a bar to inheritance. Since an alien at 
 common law was not permitted to hold lands, and such lands, 
 which he did acquire, became escheated to the State after 
 4 ' office found, ' ' it was held to be impossible for him to inherit 
 from another, as the law would not cast upon him the title 
 to lands which he could not hold. 42 Nor did he have suffi- 
 cient inheritable blood to transmit the inheritance to collat- 
 eral heirs, who were citizens. Thus, brothers could not inherit 
 from each other if their parents were aliens. 43 But now by 
 statute, they inherit from each other, although they claim re- 
 lationship through some person who is an alien. 4 * And where 
 an alien is specially authorized by statute to hold and take 
 lands by descent, it seems that only those relations can inherit 
 from him, who are citizens. At least if there are such heirs, 
 and others who are aliens, the former will inherit to the ex- 
 clusion of the latter. 45 But in a number of the States statutes 
 
 land, Virginia, Kentucky, Mississippi, Texas, Oregon, Iowa, Indiana, 
 Arkansas, Ohio, Missouri, Illinois, New Hampshire Nebraska. Jackson 
 V. Moore, 8 Dana 170; 3 Washburn on Real Prop. 41, note. In Ne- 
 braska and California, the acknowledgment of the child by the father 
 must /be in writing. Rev. Stat. Neb. (1866), p. 62; Pina v. Peck, 31 
 Cal. 359. And in Missouri the statute prdvides that the offspring of 
 marriages, which have been declared null and void, shall be legitimate. 
 Gen. Stat. Mo. (1865), p. 519, Ch. 128, Sec. 11. 
 
 1 Bla. Com. 372; 2 Id. 249. 
 
 2 Bla. Com. 250. 
 
 4* 2 Bla. Com. 251 ; Chase Bla. Com. 395, n. 9. Such is the statutory 
 rule in Virginia, Kentucky, Florida, Arkansas, Texas, New York, Mis- 
 souri and Massachusetts. 3 Washburn on Real Prop. 44, note. See next 
 note. For New York statute abolishing disability of aliens to inherit 
 land, followed in many States, see Laws 1893, p. 365, Ch. 207, construed 
 in Haley r. Sheridan (1905), 94 N. Y. S. 864. For right of alien wife 
 to inherit land of resident husband, see Brown v. Jacobs, 2 Mo. 32. 
 
 43 Parish v. Ward, 28 Barb. 328 ; McGregor v. Comstock, 3 N. Y. 408. 
 In New York it is provided by statute that the alienage of an ancestor 
 does not prevent a person from inheriting from another, of whom the 
 alien is a common ancestor. 1 Rev. Stat. (N. Y. ) 754, Sec. 22. But it 
 has been held by the New York courts that this statute does not enable 
 one to take by descent through the alien, if the latter would have been 
 heir but for the fact that he was not a citizen. People v. Irvin, 21 
 
 681
 
 483 TITLE BY DESCENT. [PART III. 
 
 have been passed removing altogether the disability of alien- 
 age. 46 
 
 Wend. 128; McLean v. Swanton, 13 N. Y. 535. See Jackson v. Jackson, 
 6 Johns. 214; Orser v. Hoag, 3 Hill 79. 
 
 Williams on Real Prop. 65, n. 1; Chase Bla. Com. 119, n. 2; Haley 
 r. Sheridan (N. Y. 1905), 94 N. Y. S. 864. 
 682
 
 CHAPTER XXI. 
 
 TITLE BY ORIGINAL ACQUISITION. 
 
 SECTION I. Title by occupancy. 
 II. Title by accretion. 
 
 III. Title by adverse possession. 
 
 IV. Statute of Limitations. 
 V. Estoppel. 
 
 VI. Abandonment. 
 
 SECTION I. 
 
 TITLE BY OCCUPANCY. 
 
 SECTION 484. Definition. 
 
 485. Condition of public lands in the United States. 
 
 486. Estates per outer vie. 
 
 484. Definition. Occupancy, in the technical significa- 
 tion of the term, is the act of taking possession of land which 
 before was the common property of the people or community. 1 
 Under the theory that in the prehistoric age lands were origi- 
 nally common property, this must have been the original 
 mode of acquiring therein a right of private property. 
 
 485. Condition of public lands in the United States. Ac- 
 cording to the common law of England and of this country, 
 there is no common property in lands. Here lands which are 
 not the property of private persons are held to be the prop- 
 erty of the State or the United States, according to the cir- 
 cumstances. England claimed by the right of discovery the 
 title to the soil, denying any claim thereto of the aborigines, on 
 
 12 Bla. Com. 257. 
 
 683
 
 485 TITLE BY OCCUPANCY. [PART III. 
 
 the ground that their nomadic life prevented them from ac- 
 quiring more than a temporary right of occupation, some- 
 thing in the nature of revocable or defeasible licenses or 
 tenancies at will. 2 This right was in turn granted by letters 
 patent to the various colonies, which were established under 
 the British government, and the unappropriated lands 
 within their boundaries became the property of the respec- 
 tive colonial governments. 3 But all lands lying outside of 
 the colonies remained the property of Great Britan, including 
 both the lands acquired under the claim of discovery and 
 those purchased from other civilized nations. 4 And, upon 
 the successful issue of the American revolution, these lands 
 became the property of the United States. Subsequently 
 a number 'of the States, which claimed title to extensive 
 tracts of lands in the then unexplored West, under their 
 charters from the crown, ceded them to the United States 
 for the benefit of the Union. There have also been purchases 
 by the United States from other nations, notably Louisiana, 
 Florida, and the large tracts of territory ceded by Mexico, 
 to the unappropriated lands of which the same theory of 
 property in the government has been applied. 5 There are, 
 therefore, in this country no lands without an owner; and 
 the so-called public lands being the property of the States or 
 the United States, the legal title to them can only be ac- 
 quired by grant from the government. 8 
 
 23 Washburn on Real Prop. 164; 1 Story on Const. 3; Johnson v. Mc- 
 Intosh, 8 Wheat. 543 ; Martin v. Waddell, 16 Pet. 367. 
 
 31 Curtis on Const. 425; Jackson v. Hart, 12 Johns. 81; Worcester 
 V. Georgia, 6 Pet. 544; Commonwealth v. Roxbury, 9 Gray 478. 
 
 * Johnson v. Mclntosh, 8 Wheat. 543 ; Worcester v. Georgia, 6 Pet. 
 548. 
 
 53 Washburn on Real Prop. 165, 166; 1 Story on Const. 215; 1 
 Kent's Com. 259 ; Terrett V. Taylor, 9 Cranch 50. 
 
 Under the laws of Congress, however, the actual settler upon public 
 lands acquires by such act of occupation an equitable title in the nature 
 of a right to the legal title, upon payment of the minimum price fixed 
 by law. This right is called pre-emption, and further reference will be 
 made to it in treating of title by public grant or patent. See post, 
 684
 
 CH. XXI.] TITLE BY OCCUPANCY. 486 
 
 486. Estates per auter vie. It will be remembered, in 
 treating of these estates, it was stated that upon the death 
 of the tenant, per auter vie, during the life of the cestui que 
 vie, the common law gave the estate to the^first occupant in 
 the case of an ordinary estate per auter vie, and he was 
 called the general occupant. But where the estate was lim- 
 ited to the tenant and his heirs during the life of another, 
 his heirs took the estate by so-called special occupancy to 
 the exclusion of the general occupant. 7 But this common- 
 law doctrine has now been abolished by statute in England, 
 and in most, of not all, of the United States. The estate is 
 either given the quality of an estate of inheritance, and de- 
 scends to the heirs of the tenant per auter vie, or is made a 
 chattel real, and vests in his personal representatives. 8 
 
 Sec. 522. For right of discoverer of mineral upon the public land in 
 the United States to the occupation and acquisition of the land under 
 the Acts of Congress, see, White, Mines & Mining Rem., Chap. III. 
 
 7 See ante, Sec. 47 ; 2 Bla. Com. 258, 259, 260. 
 
 83 Washburn on Real Prop. 50, 51; Chase Bla. Com. 414, n. 1. See 
 ante. Sec. 47. 
 
 685
 
 SECTION II. 
 
 TITLE BY ACCRETION. 
 
 SECTION 487. Definition. 
 
 488. Alluvion. 
 
 489. Filum Aquas. 
 
 487. Definition. It is a rule in the law of real property 
 that whenever other species of property become attached 
 to the land already in one's possession, it becomes a part 
 of the land and the property of its owner, and the title 
 thereto is generally acquired by the very act of attachment. 
 Quidquid plantatur solo, solo cedit. It has been shown that 
 this rule applies to houses and other structures erected upon 
 the land by strangers without the consent of the owner of 
 the land. 9 But at present we are only concerned with the 
 doctrine so far as it applies to the additions of foreign soil 
 through the co-operation of natural causes, which are known 
 under the term alluvion. The mode of acquiring a right of 
 property in such cases is called title by accretion. It is more 
 properly an incident to real property than a mode of acqui- 
 sition of lands. But inasmuch as new property is thus 
 acquired, the means or manner of acquisition may fitly be 
 called a title. 10 
 
 9 See ante, Sec. 2. " Land formed by gradual and imperceptible accre- 
 tion, or by gradual receding of the water, belongs to the owner of the 
 contiguous land to which the addition is made." Nix v. Pfeifer (Ark. 
 1904), 83 S. W. Rep. 951. 
 
 103 Washburn on Real Prop. 55, 59; Banks v. Ogden, 2 Wall. 69; 
 Saulet v. Shepherd, 4 Wall. 505; Municipality v. Orleans Cotton Press, 
 18 La. 122. " Persons seeking to establish title by accretion or reliction 
 to land in the possession of another have the burden of showing the 
 accretion or reliction by which they claim title." Wright V. City of 
 Council Bluffs (Iowa 1905), 104 N. W. Rep. 492. 
 686
 
 CH. XXI.] TITLE BY ACCRETION. 488 
 
 488. Alluvion. This is the soil and various other things, 
 such as marine and water plants, sea-weeds, etc., which 
 are washed up on the shore of a stream by the action of 
 the water. It is a notable and common fact that the current 
 of a stream is constantly changing by the washing away of 
 the soil on one side of the stream and the transportation of 
 the particles to the other side, or by their deposit on the 
 same side below. All such accretions become a part of the 
 land on which they are cast, and the property of the owner 
 of the soil. 11 The accretions, however, become subject to 
 all the incumbrances which have been imposed upon the 
 original land. 12 But the title to such accretions does not 
 rest upon the mere fact of attachment to the soil, although 
 such attachment is a necessary element. It rests rather 
 upon the fact that the former owner is unable to identify 
 his property. Alluvion is the gradual formation of soil by 
 the deposit of particles and atoms of soil, which, from the 
 very nature of the case, the former owner cannot identify 
 in the new shape which they have assumed. But if by 
 some sudden avulsion a distinct and tangible part of the soil 
 of one man's land is detached and deposited upon another's 
 premises, the latter acquires no title thereto by the mere 
 act of deposit. Tha former owner can still identify it, 
 and prove his property. But if he should permit such soil 
 to remain upon the land sufficiently long to become perma- 
 nently attached, his right of property will be lost because its 
 removal after such delay would probably injure the land. 13 
 
 "3 Washburn on Real Prop. 55; Emans v. Turnbull, 2 Johns. 322; 
 Steers v. Brooklyn, 101 N. Y. 51; Buras v. O'Brien (La.), 7 So. Rep. 
 632; East Omaha Land Co. v. Jeffries, 40 Fed. Rep. 386; s. c. 134 U. 
 S. 178; Prior r. Comstock (R. I.), 19 Atl. Rep. 1079. " Title is acquired 
 by accretion only when the accretion is caused by a gradual and natural 
 deposit of soil." In re Driveway in City of New York, 93 N. Y. S. 1107. 
 
 12 Campbell v. Laclede Gas Light Co., 84 Mo. 352. 
 
 133 Washburn on Real Prop. 59; Ang. Wat. Cour., Sec. 60; Inst. 
 L. II, Tit. 1, Sec. 21; Hawkins f. Barney, 5 Pet. 467;. Dikes V. Miller, 
 24 Tex. 424; Trustees, etc., V. Dickinson, 9 Cush. 544; Halsey v. Mc- 
 Cormick, 18 N. Y. 147. " Where a river flowing over government land 
 
 687
 
 489 TITLE BY ACCRETION. [PART. III. 
 
 So, also, will a tract of land which has been submerged on 
 the sea-shore be reclaimable, if by the gradual operation of 
 the water, the land should be brought above the surface 
 again. The proprietorship of the original owner is restored, 
 if the boundaries of the submerged land can be re-estab- 
 lished. 1 * 
 
 489. Filum aquae. Where two tracts of land are divided 
 by a navigable stream, the general rule is that the boundary 
 line is the low water mark on the adjoining shore, and the 
 soil or bed of the stream is the property of the State. 15 But 
 if the stream is not navigabte, the boundary line is the cen- 
 ter of the current of the stream, commonly called the filum 
 aquce, and the owners of the shore have a right of property 
 in the bed of the stream up to this filum aquw. 1 * If, there- 
 fore > an island rises in the current of a non-navigable stream, 
 under the doctrine of accretion, it would become the prop- 
 erty of him on whose soil it is formed. If the island is formed 
 in the middle of the stream, the proprietors of the opposite 
 shores would acquire a title in severalty to that part of 
 the island which lies on their respective sides of the filum 
 aquce. 17 And if the stream disappear in consequence of 
 gradual accretions, the boundary line will be the line of 
 contact at which the stream finally disappears. 18 "Where the 
 title to the bed of the stream is in one person, and the 
 shore belongs to another, the boundary line is low-water 
 
 changes its course, the abandoned bed becomes part of the surrounding 
 land, and passes by the subsequent patent to the patentee." Boglino v. 
 Giorgetta (Colo. App. 1904), 78 Pac. Rep. 612. 
 
 i* Mulry v. Norton, 100 N. Y. 424. 
 
 15 See post, Sec. 599, for definition of a navigable stream. 
 
 is 3 Washburn on Real Prop. 55, 56. For a more extended discussion 
 of this entire subject, see post, Sees. 597, 599. 
 
 "3 Kent's Com. 428; 3 Washburn on Real Prop. 56, 57, 58; Walk. 
 Am. Law. 329; Chase's Bla. Com. 416 n ; Halsey v. McCormick, 18 N. 
 Y. 147; Primm v. Walker, 38 Mo. 99; King v. Yarborough, 3 B. & C. 
 91. See also, Webber v. Axtell (Minn. 1905), 102 N. W. Rep. 915. 
 
 isBuse v. Russell, 86 Mo. 209. 
 688
 
 CH. XXI.] TITLE BY ACCRETION. . 489 
 
 mark ; the alluvion formed on the shore belongs to the owner 
 of the shore, but the alluvion formed in the stream belongs 
 to the owner of the bed. 19 But if the stream is navigable, 
 since the right of property in the bed of the stream is vested 
 in the State, an island formed in the current of the stream 
 belongs to the State, and the owners of the shore are only 
 entitled to whatever alluvion is deposited on their shore 
 above low-water mark. 20 So also if, by some sudden change 
 in the current of the navigable river, what was once the 
 bed is left uncovered, the property in the soil remains 
 in the State. The owner of the shore does not acquire the 
 title thereto, as he does to gradual and ordinary accretions, 
 resulting from usual and natural changes in the current. 21 
 
 i Linthicum V. Coan, 64 Md. 439. " Where a deed described the land 
 conveyed as a certain number of acres off from one side of a govern- 
 ment subdivision, the purchaser was not entitled to accretions lying be- 
 tween the land described and the river." Perry v. Sadler (Ark. 1905), 
 88 S. W. Rep. 832. The doctrine of the text is followed in some recent 
 Missouri cases, where the grantee of land from the United States, on 
 the bank of a navigable stream, was held to take title only to low 
 water mark, and not to the middle of the stream. The riparian owner 
 was held, by reason of such ownership, not to be entitled to an island, 
 which sprang up in the midst of the river and where, by accretions to 
 the island, its water margin had united with the main shore, the newly 
 made land was held to become^ a part of the island and not of the 
 main land and the riparian ownership was not extended by such accre- 
 tions. McBain v. Johnson, 155 Mo. 191, 55 S. W. Rep. 1031; Moore 
 v. Fanner, 156 Mo. 33, 56 S. W. Rep. 493. 
 
 203 Washburn on Real Prop. 58; Chase's Bla. Com. 416 n; Attorney- 
 General v. Chambers, 4 De G. M. & G. 206-218; Scratton v. Brown, 4 B. 
 & C. 495; King v. Yarborough, 1 Gow. & C. 178; s. c. 3 B. & C. 91. 
 But see, Webber v. Axtell (Minn, 1905), 102 N. W. Rep. 915. 
 
 21 Emans V. Turnbull, 2 Johns. 322; Halsey v. McCormick, 18 N. Y. 
 147. See Trustees, etc., v. Dickinson, 9 Cush. 544. But see, for con- 
 trary holding in Colorado, as to abandoned bed of river, Boglino v. 
 Giorgetti, 78 Pac. Rep. 612. For title by accretion, from reservation in 
 deed of future accretions, see, Minor's Heirs V. New Orleans (La. 1905), 
 38 So Rep. 999. 
 
 44 689
 
 SECTION III. 
 
 TITLE BY ADVERSE POSSESSION. 
 
 SECTION 490. Effect of naked possession. 
 
 491. Seisin and disseisin. 
 
 492. Disseisin and dispossession distinguished. 
 
 493. Actual and constructive possession. 
 
 494. Actual or constructive possession Continued. 
 
 495. What acts constitute actual possession Visible or noto- 
 
 rious. 
 
 496. Possession must be distinct and exclusive. 
 
 497. Possession Hostile and adverse. 
 
 498. Adverse possession, when entry was lawful. 
 
 499. Disseisor's power to alien. 
 
 500. Betterments. 
 
 501. Title by adverse possession How defeated. 
 
 502. Title by adverse possession How made absolute. 
 
 490. Effect of naked possession. It is an undisputed rule 
 of law that naked possession, i. e., possession without even 
 a claim of title, vests a sufficient right of property in the 
 person who has such possession, as to permit him to hold 
 the land against all the world except the true owner. 22 But 
 he does not in strict technical language, by the mere fact 
 of possession, acquire a title to the land, and certainly not 
 against the true owner. Such possession may be as licensee, 
 bailee or tenant of the real owner, or in some other way 
 subordinate to the latter; and under such circumstances his 
 possession is the possession of the owner. In order that 
 his possession may vest in him a title to the land, it must 
 be adverse to, and independent of, the real owner. What is 
 adverse possession will appear in the following paragraphs. 
 
 223 Washburn on Real Prop. 114; 2 Sharsw. Bla. Com. 196 n. "There 
 is no presumption that the possession of real estate is adverse." Monk 
 e. City of Wilmington (N. C. 1904), 49 S. E. Rep. 345. 
 690
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. -491 
 
 491. Seisin and disseisin. Seisin, as has been explained 
 in a preceding chapter, 23 is that possession which accom- 
 panies, and which is an incident of, freehold estates. Seisin 
 is of two kinds, seisin in fact, which is equivalent to actual 
 possession, and seisin in law or deed, being that seisin or 
 right to seisin, which one acquires by the delivery and accept- 
 ance of a deed, or which is retained by the owner, when 
 he parts with his possession to the tenant of a leasehold or 
 other subordinate estate, or in any other case where he has 
 not the actual possession. 24 In this connection we are not 
 concerned with the distinctions between freehold and lease- 
 hold estates in respect to the appropriate use of the term 
 seisin. On the contrary, in respect to the matter under con- 
 sideration, the terms seisin and possession may be treated 
 as synonymous, meaning that possession which accompanies,, 
 and is held under, a claim of title. 25 There cannot, however, 
 be more than one seisin, and where, therefore, two persons 
 are in possession, he has the seisin who can show a good 
 title. 26 When one is in possession of the land, and his pos- 
 session is subordinate to the claims of the real owner, although 
 the latter has not the seisin in fact, he still has the seisin in 
 law, for the possession of the former is subordinate and 
 supports the seisin in law. The tenant is for that purpose 
 a quasi-bailee of the owner. 27 But, if the one in possession 
 holds the land in opposition to the claims of the owner, and 
 under the assertion of a superior title, then the real owner 
 is deprived of his seisin; for the seisin in law can only 
 exist, apart from the seisin in fact, when the actual posses- 
 
 23 See ante, Sec. 24. 
 
 24 Co. Lit. 153; 2 Prest. Abst. 282; Ruffin v. Ovcrby, 105 N. C. 78. 
 See ante, Sec. 25. 
 
 253 Washburn on Real Prop. 117; Slater v. Rawson, Mete. 439; 
 Smith r. Burtis, 6 Johns. 216. 
 
 ze 2 Prest. Abst. 286, 290; 4 Kent's Com. 482; Barr v. Gratz, 4 Wheat. 
 213; Smith v. Burtis, 6 Johns. 216; Whittington v. Wright, 9 Ga. 23. 
 
 27 Blair r. Johnson (III. 1905), 215 111. 552, 74 N. E. Rep. 747; 
 Olsen r. Burk (Minn. 1905), 103 N. W. Rep. 335. 
 
 691
 
 491 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 sion is held by another, subject to the superior claims of the 
 owner. The real owner is then said to be disseised; the 
 act which deprives him of the seisin is a disseisin, and the 
 actor is a disseisor. Disseisin vests in the disseisor a tilde 
 to the land, and leaves in the disseisee only a right of entry, 
 which is practically but a chose in action. Disseisin is 
 synonymous with adverse possession. 28 So completely does 
 disseisin divest the owner of his estate, that at common law 
 he had nothing which he could convey; nor could he main- 
 tain an action for trespass upoti the land, or for other injuries 
 thereto. The disseisor could alone maintain such actions. 
 Says Mr. Preston: ''Disseisin is the privation of seisin. It 
 takes the seisin or estate from one man and places it in 
 another. It is an ouster of the rightful owner of his seisin. 
 . It is the commencement of a new title, producing that change 
 by which the estate is taken from the rightful owner and is 
 placed in the wrongdoer. Immediately after a disseisin, the 
 person, by whom the disseisin is committed, has the seisin 
 or estate, and the person on whom the injury is committed 
 has merely the right or title of entry." Again: " As soon 
 as a disseisin is committed, the titte consists of two divisions ; 
 first, the title under the estate or seisin, and, secondly, the 
 title under the former ownership." 29 And since the dis- 
 seisor claims the land independent of all others, his estate 
 cannot be less than an absolute and unqualified fee. 30 
 
 28 " Disseisin and ouster mean very much the same thing as adverse 
 possession," say the court in Magee v. Magee, 37 Miss. 151. Holley v. 
 Hawley, 39 Vt. 531; Ang. on Lim. 410; Com. Dig. Seisin, A. 1, A. 2. 
 
 20 2 Prest. Abst. 364. See also, 3 Washburn on Real Prop. 2'92-295 ; 
 Rawle Cov. (3 ed.) 23, 24; 2 Smith Ld. Cas. 529, 530, 531. "Adverse 
 possession is a possession in opposition to the true title and real owner, 
 and implies that it commenced in wrong (by ouster or disseisin), and is 
 maintained against right." Swope v. Ward (Mo. 1904), 84 S. W. Rep. 
 895. 
 
 so Co. Lit. 271 a; 2 Prest. Abst. 293; Wheeler v. Bates, 21 N. H. 460; 
 McCall v. Neely, 3 Watts 71. Query: If one enters into possession 
 under the claim of a long term of years, or an estate for life, or an 
 estate tail, will not this qualification of the claim of title under which 
 
 692
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 493 
 
 492. Disseisin and dispossession distinguished. It is not 
 every dispossession which constitutes a disseisin. In the first 
 place, a dispossession may be effected under a complete 
 and lawful title; a disseisin is always a wrongful dis- 
 possession, i. e., it is never supported by a good title. 31 Nor 
 is even every wrongful dispossession a disseisin. In order 
 that a wrongful dispossession may constitute a disseisin, the 
 possession thus acquired must be actual or constructive, visible 
 or notorious, distinct and exclusive, hostile or adverse. 32 It 
 is always a question for the jury whether a possession has all 
 the elements necessary to make it a case of disseisin. 33 , 
 
 493. Actual or constructive possession. Possession may 
 be actual or constructive. Thus, where one receives a deed 
 of conveyance, by the very delivery of the deed, he is con- 
 sidered as being in constructive possession of the land, 
 although he has not acquired the actual possession. So, also, 
 
 he enters limit the estate which he would acquire by disseisin or adverse 
 possession? See, for character of disseisor's title, Franklin v. Cunning- 
 ham (Mo. 1905), 86 S. W. Rep. 79. 
 
 si Slater v. Rawson, 6 Mete. 439; Smith v. Burtis, 6 Johns. 216. 
 
 824 Kent's Com. 488; 2 Smith Ld. Cas. 529, 560, 561; Melvin v. 
 Proprs. of Locks, etc., 5 Mete. 15; Smith v. Burtis, 5 Johns. 218; Das- 
 well v. De La Lanza, 20 How. 32; Jackson v. Wheat, 18 Johns. 44; 
 Flaherty v. McCormick, 113 111. 538; Dothard v. Denson, 75 Ala. 541; 
 Davis v. Bowmar, 55 Miss. 671; Ringo v. Woodruff, 43 Ark. 469; 
 Bracken v. Jones, 63 Tex. 184; Unger v. Mooney, 63 Cal. 586; Hawks 
 v. Senseman, 6 S. & R. (Pa.) 21; Partch v. Spooner, 57 Vt. 583; Tay- 
 lor v. Burnside, 1 Gratt. (Va.) 165; Creekmur v. Creekmur, 75 Va. 
 430; Core v. Faupel, 24 W. Va. 238; Dietrick v. Noel, 42 Ohio St. 18; 
 8. c. 51 Am. Rep. 788. See Cobley v. Cobley (Mo. 1905), 87 S. W. 
 Rep. 957. 
 
 sspoignard v. Smith, 6 Pick. (Masb ) 172; Gross v. Welwood, 90 N. 
 Y. 638; Madison Am. Church t>. Oliver St. Church, 73 N. Y. 82; Jack- 
 son v. Wheat., 18 Johns. (N. Y.) 40; Boogher v. Neece, 75 Mo. 384; 
 Magee v. Magee, 37 Miss. 490; Holliday v. Cronwell, 37 Tex. 437; Mc- 
 Nair v. Funt, 5 Mo. 300 ; Macklot v. Dubreuil, 9 Mo. 473 ; s. c. 43 Am. 
 Dec. 550. See, Archer v. Beihl, 136 Fed. Rep. 113; Kennedy v. Monesa 
 (N. C. 1905), 50 S. E. Rep. 450; Young v. Grieb (Minn. 1905), 104 
 N. W. Rep. 131. 
 
 693
 
 493 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 does the heir or devisee acquire constructive possession by 
 force of the descent cast or of the devise. Such a grantee, 
 heir or devisee, acquires the seisin in law, and the construc- 
 tive possession, raised by implication of law, is but the 
 consequence of the transfer of this seisin. Seisin in law and 
 constructive possession may for all practical purposes be 
 considered synonymous. 34 But where there is an actual ad- 
 verse possession by one, there can be^no constructive posses- 
 sion acquired by another. "Two persons cannot be in adverse 
 constructve possession of the same land at the same time. ' ' 35 
 But in order that a disseisin may be effected, there must be an 
 actual occupation of the land to some extent. The simple 
 acceptance of a title by deed adverse to the rightful owner 
 will not work a disseisin, unless an actual entry is made upon 
 the land. 36 Possession through a tenant or agent is of course 
 
 s* Co. Lit. 153; 2 Prest. Abst. '282; Barr v. Gratz, 4 Wheat. 213; 
 Green v. Liter, 8 Cranch 229; Wyman v. Brown, 50 Me. 160; Hodges v. 
 Eddy, 38 Vt. 344 ; Caldwell V. Fulton, 44 Pa. St. 475 ; Effinger v. Lewis, 
 32 Pa. St. 367; Matthews v. Ward, 10 Gill & J. 443; Breckenridge v. 
 Ormsby, J. J. Marsh. 244. 
 
 353 Washburn on Real Prop. 118; Hodges v. Eddy, 38 Vt. 344; 
 Farrar V. Heinrich, 86 Mo. 521; Garrett v. Ramsey, 26 W 7 . Va. 345; 
 Cook r. McKinney (Cal.), 11 Pac. Rep. 799; Echole^ V. Hubbard (Ala.), 
 7 So. Rep. 817; Jones V. Gaddis (Miss.), 7 So. Rep. 489; Stevens Lum- 
 ber Co. v. Hughes (Miss. 1905), 38 So. Rep. 769; Raleigh v. Wells (Utah 
 1905), 81 Pae. Rep. 908; Robinson v. Nordman (Ark. 1905), 88 S. W. 
 Rep. 592; Proctor v. Maine Cent. Co. (Me. 1905), 60 Atl. Rep. 423. 
 " In a controversy between adjoining landowners as to an intervening 
 strip of land, an instruction that one cannot be in constructive posses- 
 sion, and another in actual possession, of the same piece of land at the 
 same time, was proper." Crouch v. Colbert (Mo. App. 1905), 84 S. W. 
 Rep. 992. 
 
 se Putnam Schools V. Fisher, 38 Me. 324; Cook v. Babcock, 11 Cush. 
 210; 3 Smith Ld. Cas. 561; Berniand v. Beecher, 71 Cal. 38, 11 Pac. 
 Rep. 802; Stanley v. Shoolbred, 25 S. C. 181; Aiken v. Ela, 62 N. H. 
 400; Huntington v. Allen, 44 Miss. 654; Denham v. Holeman, 26 Ga. 
 182; s. c. 71 Am. Dec. 193; Eagle, etc., Co., v. Bank, 55 Ga. 44; Sattei- 
 white v. Rosser, 61 Tex. '166; Bracken v. Jones, 63 Tex. 184; Bradley 
 v. West, 60 Mo. 33; Ringo v. Woodruff, 43 Ark. 469; Yelverton V. 
 Steele, 40 Mich. 538; Sparrow v. Hovey, 44 Mich. 63; Peterson v. Mc- 
 Cullough, 50 Ind. 35; Pepper v. O'Dowd, 39 Wis. 548; Jewett v. Hussey, 
 694
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 494 
 
 sufficient actual possession to support the claim of adverse 
 possession. 37 But when an actual occupation of a part of the 
 premises has taken place, then the doctrine of constructive 
 possession will, under certain circumstances, apply and 
 extend the disseisin beyond that part of the land which is in 
 the actual possession of the disseisor. If possession is taken 
 under no color of title, the disseisin extends no farther than 
 the actual possession. 38 
 
 494. Actual or constructive possession Continued. On 
 the other hand, where entry is made under color of title, i. c., 
 under some instrument of writing, such as a deed or will, 
 which purports to convey a title, the actual entry will place 
 
 70 Me. 433; Cook v. Babcock, 11 Cush. (Mass.) 209; Huntington v. 
 Whaley, 29 Conn. 391; Ogden v. Jennings, 66 Barb. (N. Y.) 301, 62 N. 
 Y. 526; Bear Valley Coal Co. v. Dewart, 95 Pa. St. 72; Creekmur r. 
 Creekmur, 75 Va. 430; Core f. Faupel, 24 W. Va. 238; Parker v. 
 Banks, 79 N. Car. 480; Malloy v. Bowden, 86 N. Car. 251; Pegues v. 
 Warley, 14 S. Car. 180. "To constitute adverse possession such as will 
 work a disseisin of the lawful owner, there must be actual possession 
 and occupancy of the premises for the requisite period." Proctor V. 
 Maine Cent. R. Co. (Me. 1905) , 60 Atl. Rep. 423. 
 
 37 Elliott v. Dycke, 78 Ala. 150. 
 
 ss Brimmer v. Longwarf, 5 Pick. 131; Davidson v. Beatty, 3 Har. & 
 McH. 594; Sicard V. Davis, 6 Pet. 124; Cresap v. Huston, 9 Gill 269; 
 Marble r. Price, 54 Mich. 466; Flaherty v. McCormick, 113 111. 538; 
 King V. Hunt (Ky.), 13 S. VV. Rep. 214; Clarke v. Wagner, 74 N. Car. 
 791; Scott V. Elkins, 83 N. Car. 424; Parker V. Banks, 79 N. Car. 480; 
 Moore v. Thompson, 69 N. Car. 120; Humphries v. Huffman, 30 Ohio St. 
 395; Dothard v. Denson, 75 Ala. 482; Burks v. Mitchell, 78 Ala. 61; 
 Hall v. Gay, 68 Ga. 442 ; Hammond v. Crosby, 68 Ga. 767 ; Anderson r. 
 Dodd, 65 Ga. 402; Creekmur v. Creekmur, 75 Va. 431; Peterson f. Mc- 
 Cullough, 50 Ind. 35; Gore v. Faupel, 24 W. Va. 238; Brown r. Leete, 
 6 Sawy. (U. S.) 332. Compare Wilson v. McEwan, 7 Oregon 87; 
 Bracken r. Jones, 63 Texas 184; Bristol v. Carroll County, 98 111. 84; 
 Botsch, 90 111. 577; Coleman v. Billings, 89 111. 183; Meade v. Leffing- 
 well, 83 Pa. St. 187; Wells v. Jackson Mfg. Co., 48 N. H. 491; Smith v. 
 Hosmer, 7 N. H. 436; 8. c. 28 Am. Dec. 354. "One who holds land ad- 
 versely, but without paper color of title, holds only that land which he 
 has reduced to actual possession." Chastang f. Chastang (Ala. 1904), 
 37 So. Rep. 799. 
 
 695
 
 494 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 the holder in constructive possession of the whole tract of land 
 described in the instrument. 89 And this, too, where there is 
 no doubt as to the invalidity of the deed, whether such in- 
 validity arises from a defective execution, or a defective title 
 or from a total want of title in the grantor. 40 Sheriff's deeds, 
 
 sMunro r. Merchant, 28 N. Y. 9; Parker v. Wallis, 6% Md. 15; s. c. 
 45 Am. Rep. 703 ; Creekmur v. Creekmur, 75 Va. 431 ; Johnson u. 
 Parker, 79 N. Car. 475; Stanton v. Mullins, 92 N. Car. 624; Veal v. 
 Robinson, 70 Ga. 809; Childers v. Calloway, 76 Ala. 130; Hymes v. 
 Burnstein, 72 Ala. 546; Burks v. Mitchell, 78 Ala. 61; Wilson v. Wil- 
 liams, 52 Miss. 487 ; Hunnicutt v. Peyton, 102 U. S. 333 ; Pike v. Evans, 
 94 U. S. 6; Ellicott v. Pearl, 10 Pet. (U. S.) 412; Clymer v. Dawkins, 
 3 How. (U. S.) 674; Evitts v. Roth, 61 Tex. 81; Tremaine v. Weather- 
 by, 58 Iowa 615; Barger v. Hobbs, 67 111. 592; Furlong v. Garrett, 44 
 Wis. Ill; Humphries v. Huffman, 33 Ohio St. 395; Smith v. McKay, 
 30 Ohio St. 409; Gardner V. Gooch, 48 Me. 487; Bailey v. Carleton, 12 
 N. H. 9; s. c. 37 Am. Dec. 190; Jakway v. Barrett, 38 Vt. 316; Swift 
 r. Gage, 26 Vt. 224; Thompson v. Burhans, 61 N. Y. 52; Boynton v. 
 Ashbrunter (Ark. 1905), 88 S. W. Rep. 568. One who enters on unoc- 
 cupied land under a deed, with intention of taking possession of the 
 whole, acquires possession of all the land described. Cuyler V. Bush 
 (Ky. 1905), 84 S. W. Rep. 579, 27 Ky. Law Rep. 148. 
 
 402 Smith's Ld. Cas. 563; Brackett, Petitioner, 53 Me. 228; Ellicott 
 r. Pearl, 10 Pet. 412; Gardner v. Gooch, 48 Me. 492; Jackson V. Newton, 
 18 Johns. 355; Green V. Lighter, 8 Cranch 250; Ruffin V. Overby, 105 
 N. C. 78, 11 S. E. Rep. 184; Kenrick V. Latham (Fla.), 6 So. Rep. 871; 
 McMillan v. Gambill, 106 N. C. 359, 11 S. E. Rep! 273; Stumpf v. Oster- 
 hage, 111 111. 82; Advent V. Arrington, 105 N. C. 377, 10 S. E. Rep. 991; 
 Stanley v. Shoolbred, 25 S. C. 181; Hecock V. Van Dusen (Mich.), 45 
 N. W. Rep. 343 ; Harbison V. School Dist., 89 Mo. 184, 1 S. W. Rep. 30 ; 
 Weeks f. Martin (N. Y.), 10 N. Y. S. 656. But see Cooter V. Dearborn, 
 115 111. 509; Hargis v. Kansas City, etc., R. R. Co., 100 Mo. 210, 13 S. 
 W. Rep. 530; Smythe v. Henry, 41 Fed. Rep. 705; Ege v. Medlar, 82 
 Pa. St. 86; Cheney v. Ringold, 2 H. & J. (Md.) 87; Baker v. Swan, 32 
 Md. 355 ; Creekmur v. Creekmur, 75 Va. 430 ; Core v. Faupel, 24 W. Va. 
 238; Stevens v. Hollister, 18 Vt. 294; s. c. 46 Am. Dec. 154; Mylar v. 
 Hughes, 60 Mo. 105; Packard v. Moss, 8 Pac. Rep. (Cal.) 818; Janio 
 v. Patterson, 62 Ga. 527; Veal v. Robinson, 70 Ga. 309; Welborn v. 
 Anderson, 37 Miss. 155; Chiles v. Conley, 9 Dana (Ky.) 385; Golson v. 
 Hook, 4 Strob. (S. Car.) 23. "Where a will of a foreign state was ex- 
 ecuted before two witnesses only, though insufficient to pass title to 
 land, it is available as color of title." Love V. Turner (S. C. 1905), 51 
 S. E. Rep. 101, 71 S. C. 322. 
 696
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 494 
 
 and other involuntary conveyances, will serve as color of 
 title. 41 But a mere quit-claim deed, releasing all one's inter- 
 est in the land, will not be sufficient color of title to give the 
 disseisor constructive possession of the part not in actual 
 possession. Only such deeds are generally color of title, as 
 the term is here understood and employed, which operate as a 
 primary conveyance. 42 But a deed, which is in form a quit- 
 claim, may operate as a primary conveyance, where the pos- 
 session is transferred with it. 43 Where the disseisor is one 
 who denies the validity of a sale of his own land under exe- 
 cution, he holds adverse possession under color of the original 
 title conveyed to him, so as to give him constructive possession 
 of the whole tract. 44 In order that the rightful owner may 
 be divested of the whole tract described in the deed, the partial 
 occupation must be of land included in the description of the 
 deed which is to serve as color of title, 45 and the actual pos- 
 
 Kendrick v. Latham (Fla.), 6 So. Rep. 871; Falls of Neuse Mfg. 
 Co. v. Brooks, 106 N. C. 107, 11 S. E. Rep. 456; Davis t. Burroughs, 
 8 N. Y. S. 379; Goodman v. Nichols (Kan.), 23 Pac. Hep. 957; See- 
 muller v. Thornton, 77 Tex. 156, 13 S. W. Rep. 846; Miller v. Pence 
 (111), 23 N. E. Rep. 1030; Bakewell v. McKee (Mo.), 14 S. W. Rep. 
 119; Kile v. Fleming, 78 Ga. 1; Karn v. Haisley, 22 Fla. 317. See also, 
 Adams v. Carpenter (Mo. 1905), 86 S. W. Rep. 445; Brigham v. Rean 
 (Mich. 1905), 102 N. W. Rep. 845; Tyee Con. Min. Co. v. Longstedt, 
 136 Fed. Rep. 124. "A deed in which the description is so indefinite as 
 to afford no means to identify the land is inoperative, either as convey- 
 ance of title or as color of title." Pitts, v. Whitehead (Ga. 1905), 49 S. 
 E. Rep. 693. 
 
 <z Woods v. Banks, 14 N. H. Ill; Wright v. Tichenor, 104 Ind. 185. 
 
 Minot v. Brooks, 16 N. H. 376; Swift v. Mulkey, 14 Ore. 59, 12 
 Pac. Rep. 76. See generally, Pillow v. Hoberts, 13 How. 472; Jackson v. 
 Elston, 12 Johns. 454; Kimball v. Lohmas, 31 Cal. 154; Smith v. Shat- 
 tuck, 12 Ore. 362 (tax deed). In Colorado it is said that there may be 
 constructive adverse possession, although the disseisor does not hold 
 possession under some written instrument of conveyance. Lebanon 
 Mining Co. v. Rogers, 8 Colo. 34. 
 
 Gaines v. Saunders, 87 Mo. 557. 
 
 Jenkins v. Trager, 40 Fed. Rep. 726 ; Stanley v. Shoolbred, 25 S. C. 
 181; Casey v. Dunn, 57 N. Y. Super. Ct. 381, 8 N. Y. S. 305; Davis v. 
 Stroud, 104 N. C. 484, 10 S. E. Rep. 666; Weeks t?. Martin, 10 N. Y. S. 
 656; Deputron v. Young, 134 U. S. 241; Aiken v. Ela, 62 N. H. 400. 
 
 697
 
 495 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 session of a part must be of such a character as to give rise 
 to a reasonable presumption that the owner knows that the 
 entry was made under color of title. If this presumption be 
 not reasonable under the circumstances of the case, the dis- 
 seisin will not extend beyond the actual occupation. The de- 
 scription must indicate clearly the metes and bounds of the 
 land. Any obscurity in the description will destroy the claim 
 of constructive possession. 46 So, also, if the title was only 
 void as to a part of the land conveyed, the occupation of that 
 part to which the grantor had title will not give the grantee 
 constructive possession of the other part to which he has no 
 title, so as to disseise the real owner. 47 And it would seem 
 reasonable that the term color of title should apply only to 
 deeds and other instruments of conveyance, which have been 
 recorded. 48 So, also, if the deed conveys two separate and 
 distinct parcels of land, entry and actual occupation of one 
 tract will not give constructive possession to the other. 49 
 
 495. What acts constitute actual possession Visible or 
 notorious. No particular act or series of acts are necessary 
 to be done on the land, in order that the possession may be 
 actual. Any visible or notorious acts, which clearly evi- 
 
 ^e Price V. Jackson, 91 N. C. 11; Etowah, etc., Mining Co. V. Parker, 
 73 Ga. 51; Davis v. Strowd, 104 N. C. 484, 10 S. C. 666. But see Hoi- 
 brook V, Forsythe, 112 111. 306. See, Pitts v. Whitehead (Ga. 1905), 
 49 S. E. Rep. 693. 
 
 47 Bailey V. Carleton, 12 N. H. 9. See Little r. Mequirer, 2 Me. 176; 
 Sharp V. Brandon, 15 Wend. 599; Barber v. Schaffer, 76 Ga. 285; Gar- 
 rett V. Ramsey, 26 W. Va. 345; Staton V. Mullis, 92 N. C. 623; Coal 
 Creek Mining Co. f. Heck, 15 Lea 497; Morris r. McClary, 43 Minn. 346. 
 
 48 Hodges V. Eddy, 38 Vt. 345; Van Sickle v. Catlett, 75 Texas 404, 
 13 S. W. Rep. 31. But see contra, Hunter v. Kelly, 92 N. C. 283 ; Brown 
 r. Brown, 106 N. C. 451, 11 S. E. Rep. 647; Bellows v. Jewell, 60 N. H. 
 420; Minot v. Brooks, 16 N. H. 374; Chastain v. Phillips, 11 Ired. (N.. 
 Car.) 225; Hardin V. Barrett, 6 Jones (N. Car.) 159; Know v. Hinson, 
 8 Jones (N. Car.) 347; Davis V. Higgins, 91 N. Car. 382; Ravvson v. 
 Fox, 65 111. 200; Dickinson v. Bruden, 30 111. 279; Lea f. Polk Co. Cop- 
 per Co., 21 How. (U. S.) 493. 
 
 40 Grimes v. Ragland, 28 Ga. 123 ; Barber v. Shaffer, 76 Ga. 285. 
 698
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 495 
 
 dence the intention to claim ownership and possession, will 
 be sufficient to establish the claim of adverse possession. 50 A 
 clandestine use of the premises of so secret a character that the 
 owner is not likely to know of it, will not constitute a dis- 
 ^ seisin. The occupation must be so notorious and open, that 
 the owner may be presumed to have notice of it and of its 
 extent. 51 There are some acts, so notorious in their character, 
 that they raise a conclusive presumption of notice to the 
 owner of the adverse claim. Such are the maintenance of 
 fences and other substantial inclosures, and the erection of 
 buildings. 52 But in the case of the erection of buildings, 
 
 soEwing V. Burnett, 11 Pet. 41; Bailey v. Carleton, 12 N. H. 9; La 
 Frombois V. Jackson, 8 Cow. 604; Faught v. Holway, 50 Me. 24; Ford 
 r. Wilson, 35 Miss. 504; Ewing v. Burnett, 11 Pet. (U. S.) 41; Faught 
 v. Holway, 50 Me. 24; Ellicott v. Pearl, 10 Pet. (U. S.) 412. Sales by 
 persons claiming to have been in possession of certain swamp lands as 
 owners for 30 years are admissible as part of the acts showing adverse 
 possession. Dowdell v. Orphans' Home Soc. (La. 1905), 38 So. Rep. 16; 
 Orphans' Home Soc. v. Dowdell, Id. 
 
 5i2 Smith Ld. Cas. 563; Cook v. Babcock, 11 Cush. 210; Price r. 
 Brown, 101 N. Y. 669; Mauldin 0. Cox, 67 Cal. 387; Wait v. Gove 
 (Ky.), 12 S. W. Rep. 1068; Watkins v. Lynch, 71 Cal. 21, 11 Pac. Rep. 
 808 ; Barker v. Deignan, 25 S. C. 252 ; Wilson v. Williams, 52 Miss. 488 ; 
 Moore v. Thompson, 69 N. Car. 120; Unger v. Mooney, 63 Cal. 586; 
 s. c. 49 Am. Rep. 100; Miller V. Myles, 46 Cal. 539; Thompson V. Pioche, 
 44 Cal. 508; Soule V. Barlow, 49 Vt. 329; Samuel v. Borrowscale, 104 
 Mass. 207; Clark v. Gilbert, 39 Conn. 97; School Dist. v. Lynch, 33 
 Conn. 334; Trustees v. Kirk, 84 N. Y. 215; s. c. 38 Am. Rep. 505; 
 Culver c. Rhodes, 87 N. Y. 354; Foulke v. Bond, 41 N. J. L. 527; Wil- 
 son r. Williams, 52 Miss. 488; Campau V. Dubois, 39 Mich. 274. "A 
 possession .which was at its inception friendly and in subordination to 
 the true title does not become adverse merely by change of mental atti- 
 tude." Coberly v. Coberly (Mo. 1905), 87 S. W. Rep. 957. 
 
 52 Poignard v. Smith, 6 Pick. 172 ; Cutter v. Cambridge, 6 Allen 20 ; 
 Price v. Brown, 101 N. Y. 669; Smith v. Roberts, 62 Ala. 83; Allen v. 
 Allen, 58 Wis. 205; Sedg. & W. Trial of Title to Land, Sec. 758; Angell 
 on Lira., Sees. 390, 391, 392, and cases cited in the notes; Bell v. Den- 
 son, 56 Ala. 444; Leeper v. Baker, 68 Mo. 405; Turner v. Hall, 60 Mo. 
 275. See Ford t. Wilson, 35 Miss. 505; Martin ?. Judd, 81 111. 488; 
 Smith v. Jackson, 76 111. 254; Clement v. Perry, 34 Iowa 567; Hunton 
 r. Nichols, 55 Tex. 217; Read v. Allen, 63 Tex. 154; Door V. School 
 Dist., 40 Ark. 243; Humphries V. Huffman, 33 Ohio St. 403; Bowen r. 
 
 699
 
 495 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 without other accompanying acts of ownership, the disseisin 
 would only extend to the land covered by the buildings, to- 
 gether with the necessary right of ingress and egress. 83 
 Merely surveying the land, and causing a line to be run 
 around it, and lopping or slashing trees to indicate the course 
 of the line, will not be sufficient. The inclosure must, in all 
 ordinary cases, be substantial. 54 But there are cases where 
 an enclosure is not necessary. Notice of possession may then 
 be presumed from other acts of ownership, as where taxes are 
 paid on unoccupied land by one who claims it under color of 
 title. 55 So, also, where the property is of such a character, 
 and is so circumstanced, that there can be neither actual 
 
 Guild, 130 Mass. 121; Ewing v. Burnet, 11 Pet. (U. S.) 41; Gerham 
 v. Erdman, 105 Pa. St. 371; Waltemeyer v. Baughman, 63 Md. 200; 
 Torey v. Bigelow, 56 Iowa 381; Pike v. Robertson, 79 Mo. 615; Elliott 
 v. Dycke, 78 Ala. 150; Watts v. Owens, 62 Wis. 512; Eastern R. v. 
 Allen, 135 Mass. 13. Compare Clarke v. Wagner, 74 N. Car. 791 ; Mor- 
 rell V. Ingle, 23 Kan. 32; Real Property Trials (Malone), Sees. 277- 
 278; Trial of Titles to Land (Serg. & Wait.), Sec. 707; Watson v. 
 Mancil, 76 Ala. 600. See McCreary v. Everding, 44 Cal. 246. Compare 
 Pullen v. Hopkins, 1 Lea (Tenn.) 741. 
 
 sspoignard v. Smith, 6 Pick. 172; Bennett v. Clemence, 6 Allen 18; 
 Erwin v. Olmsted, 7 Edw. 229; Stedman v. Smith, 8 E. & Bla. 1. See 
 Sweope V. Ward (1904), 84 S. W. Rep. 895. 
 
 B* Kennebec Purchase V. Springer, 4 Mass. 416; McLean v. Smith, 106 
 N. C. 172, 11 S. E. Rep. 184; Carley v. Parton, 75 Tex. 98, 12 S. W. 
 Rep. 950; Barker V. Deignan, 25 S. C. 252; O'Hara v. Richardson, 46 
 Pa. St. 391; Slice V. Derrick, 2 Rich. (S. Car.) 627; Morrison v. Chapin r 
 97 Mass. 72; Kerr V. Hitt, 75 111. 51; Soule v. Barlow, 48 Vt. 132; 
 Walsh V. Hill, 41 Cal. 571; Smith's L. C. 717, et seq. 
 
 osHolbrook v. Gouverneur, 114" 111. 623; Cooter v. Dearborn, 115 111. 
 509; Ruffin v. Overby, 105 N. C. 78, 11 S. E. Rep. 251; Stockton V. 
 Geissler, 43 Kan. 612, 23 Pac. Rep. 619; McNoble V. Justiniano, 70 Cal. 
 395, 11 Pac. Rep. 742; Snowden v. Rush, 76 Tex. 197, 13 S. W. Rep. 
 189; Wren v. Parker, 57 Conn. 529, 18 Atl. Rep. 790; Perry v. Barton, 
 111 111. 138; Stumpf V. Osterhage, 111 111. 827. In some of the States, 
 the payment of taxes is a requisite to the claim of adverse possession. 
 McNoble v. Justiniano, 70 Cal. 395, 11 Pac. Rep. 742; Snowden -v. Rush, 
 76 Texas 197; Juck V. Fewell, 42 Fed. Rep. 517. On an issue as to 
 adverse possession, the payment of taxes is admissible as a circum- 
 stance in determining the fact and extent of possession. Chastang v. 
 Chastang (Ala. 1904), 37 So. Rep. 799. See also, Murphy v. Nelson 
 700
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 496 
 
 permanent occupation nor residence, on account of its in- 
 capacity to receive any permanent improvement, these acts 
 will not be necessary. The disseisin may be manifested by 
 any other public acts of ownership which were possible with 
 property of that kind. 66 Very often the Statutes of Limita- 
 tions in the different States state expressly what acts will 
 constitute a visible or notorious possession, and what will not. 
 "Wherever there are such provisions, they will supersede the 
 presumptive conclusions of law explained and presented in 
 this paragraph. 57 
 
 496. Possession must be distinct and exclusive. The pos- 
 session must also be distinct and exclusive, i. e., the owner 
 must be actually ousted of possession. A joint possession, 
 even though adverse to each other, will not be a disseisin. 
 Where two are in possession, the seisin follows the title, and 
 there can be no disseisin, unless the rightful owner is al- 
 together deprived of possession. 58 If the wrong-doer disturbs 
 
 (S. D. 1905), 102 N. W. Rep. 691; Glos v. Miller, 213 111. 22, 72 N. E. 
 Rep. 714; Towson v. Denson (Ark. 1905), 86 S. W. Rep. 661. 
 
 BEwing v. Burnett, 11 Pet. 41; Blood v. Wood, 1 Mete. 528; Faught 
 V. Holway, 50 Me. 24; Den V. Hunt, Spenc. 487; Brett v. Farr, 66 Iowa 
 684 (cutting timber) ; Costello v. Edson, 44 Minn. 135, 46 N. W. Rep. 
 299 (cutting away underbrush and grubbing) ; Stockton V. Geissler, 43 
 Kan. 612, 23 Pac. Rep. 619 (advertising and offering for sale) ; Ford 
 r. Wilson, 35 Miss. 490; s. c. 72 Am. Dec. 137; Moss v. Scott, 2 Dana 
 (Ky.) 275; Royall v. Lisle, 15 Ga. 545; s. c. 60 Am. Dec. 712; Dorr 
 v. School Dist., 40 Ark. 237; Draper V. Shoot, 25 Mo. 197; s. c. 69 Am. 
 Dec. 462; Sleeper v. Baker, 68 Mo. 400; Merchants' Bank v. Calvin, 60 
 Mo. 559; Coleman v. Billings, 89 111. 183; Clement v. Perry,. 34 Iowa 
 567; Brumagin v. Bradshaw, 39 Cal. 24; Robinson v. Sweet, 3 Me. 315; 
 Ewing v. Burnett, 11 Pet. (U. S.) 41; Ellicott v. Pearl, 10 Pet. (U. S.) 
 412. " Cutting down a few trees in swamps, without it appearing defi- 
 nitely whether the intent was to enter into possession, is not sufficient 
 to establish a title by prescription." Dowdell v. Orphans' Home Soc. 
 (La. 1905), 38 So. Rep. 16; Orphans' Home Soc. v. Dowdell, Id. 
 
 " Price v. Jackson, 91 N. C. 11. 
 
 58 Hawk v. Senseman, 6 Serg. & R. 21; Hodgkin v. McVeigh' (Va.), 
 10 S. E. Rep. 1065; Gafford v. Strouse (Ala.), 7 So. Rep. 248; Lawrence 
 v. Lawrence, 14 Ore. 77, 12 Pac. Rep. 186; McQueen v. Fletcher, 77 Ga. 
 
 701
 
 497 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 the real owner by his entry and joint possession, the latter 
 may elect to consider himself disseised, and by abandoning 
 possession may bring his action of ejectment. But disseisin 
 by election is not sufficient to create such an adverse pos- 
 session as will ripen into a good title. In order that the dis- 
 turbance of possession may be treated by the owner as a 
 disseisin, he must abandon the possession which he has. If 
 he does not elect to abandon the premises to the intruder, the 
 intrusion of the wrong-doer does not work a disseisin. 50 But 
 the wrong-doer need not be in exclusive possession of the 
 entire premises. His exclusive possession of a part, if he 
 only claims title to that part, will work a disseisin as to that 
 part as effectually as if the owner had been driven out of 
 possession of the whole tract of land. 60 
 
 497. Possession Hostile and adverse. Under the early 
 common law, it was required that the disseisor should be 
 recognized by the lord of the manor, and his other tenants, as 
 one of the peers of the baron's court in order that a complete 
 disseisin may be effected. But this rule has long since be- 
 come obsolete in England, and never did exist in this coun- 
 try. 61 And instead of this complicated process, it is now 
 
 444; Pepper v. O'Dowd, 39 Wis. 538; Furlong v. Garrett, 44 Wis. Ill; 
 Wilson v. Williams, 52 Miss. 488; Dixon v. Cook, 47 Miss. 220; Satter- 
 white v. Rosser, 61 Tex. 166; Bracken v. Jones, 63 Tex. 184; Thompson 
 r. Pioche, 44 Cal. 508 ; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100 ; 
 Armstrong v. Merrill, 14 W 7 all. (U. S.) 120; Malloy v. Bowden, 86 N. 
 Car. 251; Ekey v. Inge, 87 Mo. 493; Pike v. Robertson, 79 Mo. 615; 
 Creekmur v. Creekmur, 75 Va. 430; Turpin v. Saunders, 32 Gratt. (Va.) 
 27; Core r. Faupel, 24 W. Va. 238; Doe v. Campbell, 10 Johns. (N. Y.) 
 477; Cahill r. Palmer, 45 N. Y. 484; Saxton v. Hunt, 20 N. J. L. 487. 
 
 5 Taylor v. Horde, 1 Burr. 60; Doe v. Hull, 2 D. & R. 38; Proprs. r. 
 McFarland, 12 Mass. 327 ; Munro V. Ward, 6 Allen 150 ; Burns v. Lynde, 
 6 Allen 312; Smith v. Burtis, 6 Johns. 215. 
 
 eo Kellogg v. Mullen, 39 Mo. 174; Tamm v. Kellogg, 49 Mo. 118; 
 Soule v. Barlow, 49 Vt. 329 ; Russell f. Maloney, 39 Vt. 583 ; Bartholo- 
 mew v. Edwards, 1 Houst. 17; Den v. Hunt, 20 N. J. L. 487; Allen r. 
 Peters, '77 Texas 599; Coombs V. Parsons, 82 Me. 326, 19 All. Rep. 826. 
 
 iCo. Lit. 266 b, Butler's note 217; 3 Washburn on Real Prop. 126; 2 
 Prest. Abst. 284. 
 702
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 497 
 
 only required that the possession should be hostile and adverse 
 to the rightful owner. 62 That is, it must be held under a 
 claim of title which is adverse to the disseisee 's title, and the 
 intention must be to resist the title of the latter. 63 If this in- 
 tention to claim a hostile and adverse title is not established, 
 the disposition is only a trespass, and, however long continued, 
 will not make a disseisin. 64 On the other hand, the intention 
 to claim an adverse title to the true owner, and an entry 
 under a defective claim of title,, will not prevent such a one 
 from showing that he did have the true title by another con- 
 veyance. 65 But there need not be a willful entry to deprive 
 the owner of what is lawfully his. All that is necessary is to 
 
 62Newhall v. Wheeler, 7 Mass. 189; Coburn v. Hollis, 3 Mete. 125; 
 Slater r. Rawson, 6 Mete. 439; Lund v. Parker, 3 N. H. 49: 
 
 esBradstreet V. Huntington, 5 Pet. 439; Ewing v. Burnet, 11 Pet. 41; 
 Bath v. Valdez, 70 Cal. 350, 11 Pac. Rep. 725; Smith v. City of Osage 
 (Iowa), 45 N. W. Rep. 404; Core V. Faupel, 24 W. Va. 238; Hudson 
 v. Putney, 14 W. Va. 561; Beatty v. Mason, 30 Md. 409; O'Daniel r. 
 Bakers' Union, 4 Houst. (Del.) 488; Snoddy v. Kreutch, 3 Head 
 (Tenn.) 304; Cordon r. Sizer, 39 Miss. 805; Magee r. Magee. 37 Miss. 
 152; Ringo V. Woodruff, 43 Ark. 469; Craoken v. Jones, 63 Tex. 184; 
 Pepper v. O'Dowd, 39 Wis. 548; Morse r. Churchill, 41 Vt. 649; Soule 
 f. Barlow, 49 Vt. 329; Russell V. Davis, 38 Conn. 562; Smith r. Burtis. 
 6 Johns (N. Y.) 218; Jackson v. Wheat, 18 Johns. (N. Y.) 40; Creek- 
 mur r. Creekmur, 75 Va. 430; Clark v. McClure, 10 Gratt. (Va.) 305. 
 " Notorious adverse possession sufficiently establishes actual notice to 
 holder of legal title." Love v. Turner (S. C. 1905), 51 S. E. Rep. 101, 
 71 S. C. 322. 
 
 o* Putnam School v. Fisher, 38 Me. 324; Grant v. Fowler. 39 N. H. 
 101; Hodges v. Eddy, 41 Vt. 488; Beatty v. Mason, 30 Md. 409; Carroll 
 t. Gillion, 33 Ga. 539; Magee v. Magee, 37 Miss. 152; Cook i: Babcock, 
 11 Cush. 210; Grube v. Wells, 34 Iowa 148; Musick v. Barney, 49 Mo. 
 458; McCall r. Wells, 55 Mich. 171; Dixon v. Ahern (Nev.), 24 Pac.. 
 Rep. 337; Horton V. Davidson (Pa.), 19 Atl. Rep. 934; People r. 
 Lowndes, 55 Hun 469; Durham v. Townsend, 118 N. Y. 281, 23 N. E. 
 Rep. 367 ; Maple r. Stevenson, 122 Ind. 368, 23 N. E. Rep. 854 ; Chicago, 
 etc., Ry. Co., r. Gait (111.), 23 N. E. Rep. 425, 24 N. E. Rep. 674; Law- 
 rence r. Lawrence, 14 Ore. 77, 12 Pac. Rep. 186. " A possessor without 
 title and in bad faith cannot complain of the staleness of a demand for 
 restitution." Messi v. Frechede (La. 1904), 37 So. Rep. 600. 
 
 Logan v. Fitzgerald, 92 N. C. 644. " In order to show adverse pos- 
 session under color of title, the land must be located within the bounda- 
 
 703
 
 497 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 show an unequivocal claim of title adverse to the real owner. 
 And if the claim is made under a mistake of fact or law, 
 and the alleged disseisor honestfy believes the land to belong 
 to him, it will be just as much an act of disseisin as if it had 
 been done knowingly, and with the express purpose to de- 
 fraud the rightful owner. 66 It is now provided by statute in 
 some of the States that there can be no adverse possession, 
 except when the claim of title is made in good faith and under 
 color of title. 67 An apparent exception to this rule arises 
 where one occupies land up to a certain line, whether indi- 
 cated by a fence or not, under a mistaken belief that it was 
 the true line, but with no intention to claim beyond the 
 actual line, or legal boundary. Such possession will not be 
 deemed so adverse as to cause the Statute of Limitations tt> 
 run against the rightful claim. 68 But if the adjoining own- 
 ers orally agreed upon a dividing line as the true line, the 
 
 ries of the deed conferring such color of title." Marshall v. Corbett (N. 
 C. 1905), 50 S. E. Rep. 210. 
 
 ee Johnson r. Gorham, 38 Conn. 521; Bryan V. Atwater, 5 Day 181; 
 Robinson r. Phillips, 65 Barb. 418; s. c. 56 N. Y. 634; Russell V. Malo- 
 ney, 39 Vt. 583; Faught V. Holway, 50 Me. 24; Carmody v. Chicago, 
 etc., R. R. Co., Ill 111. 69; Vandall v. Martin, 42 Minn. 163, 44 N. W. 
 Rep. 525; McCormiek v. Silsby, 82 Cal. 72, 22 Pac. Rep. 874; Grand 
 Tower, etc., Co., V. Gill, 111 111. 541. "One may acquire title by adverse 
 possession to land adjoining his lot, though he takes and holds posses- 
 sion of it under a mistake as to the location of the boundary." Rennert 
 v. Shirk (Ind. 1904), 72 N. E. Rep. 546. 
 
 C7 ArnoM t?. Woodward (Colo.), 23 Pac. Rep. 444. 
 
 esHuntington v. Whaley, 29 Conn. 391; Holton v. Whitney, 30 Vt. 
 410; Winn v. Abeles, 35 Kan. 85; Alexander v. Wheeler, 78 Ala. 167; 
 Wait v. Gover (Ky.), 12 S. W. Rep. 1068; McLean v. Smith, 106 N. C. 
 172, 11 S. E. Rep. 184; Winn v. Abeles, 10 Pac. Rep. (Kan.) 443; 
 Huckshorn v. Hartwig, 81 Mo. 648; Acton v. Dooley, 74 Mo. 63; Alex- 
 ander v. Wheeler, 69 Ala. 332; s. c. 78 Ala. 167; Howard v. Reedy, 29 
 Ga. 152; Worcester v. Lord, 56 Me. 265; Dow v. McKenney, 64 Me. 138; 
 Bicker v. Hibbard,- 73 Me. 105 ; Robinson v. Kinne, 70 N. Y. 147. Where 
 a party claims real estate only to a given line, and makes no claim as 
 to where the line is located, his adverse possession is limited to the line 
 wherever it may be established. Wilcox v. Smith (Wash. 1905), 80 
 Pac. Rep. 803. 
 704
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 497 
 
 possession would be adverse to the line so agreed upon, and 
 would ripen into a good title by the lapse of time. But not 
 so, if they merely agreed to build a fence for convenience, and 
 without any intention to consider it the true line. 69 Adverse 
 possession would also be presumed from a location of a fence 
 in accordance with a survey, and the title so acquired would 
 not be affected by a resurvey, which might be made after the 
 expiration of the statutory period of limitation. 70 As a gen- 
 eral proposition, any acts of ownership exercised by the wrong- 
 doer, which would make his possession sufficiently visible and 
 notorious as to raise the presumption of notice to the owner 
 of such adverse holding, will be ample evidence of the ad- 
 verse claim of title, and actual notice to the owner or an 
 express claim or affirmation of such claim of title is not re- 
 quired to establish its existence. 71 But such a possession never 
 raises a conclusive presumption of an adverse claim. It is 
 only prima facie proof of it, and may be rebutted by the 
 proof of other facts, which show that the holding was not in- 
 tended to be adverse to the rightful owner. This is a question 
 for the jury. 72 And where the character of the possession, 
 i. e., whether subordinate or adverse, is doubtful, the pre- 
 ss Burrell V. Burrell, 11 Mass. 294; Doe V. Bird, 11 East 49; Quinn 
 v. Windmiller, 67 Cal. 461; Bosworth v. City of Mt. Sterling (Ky.), 13 
 S. W: Rep. 920; Irvin v. Adler, 44 Cal. 559; Grim v. Curley, 43 Cal. 
 251; Shiels v. Roberts, 64 Ga. 370; Boho v. Richmond, 25 Ohio St. 115; 
 Adams v. Rockwell, 16 Wend. (N. Y.) 285; Brown v. Leete, 6 Sawy. 
 (U. S.) 332; Sherman v. Kane, 37 N. Y. 57; Tobey v. Secor, 60 Wis. 
 310; Bader v. Zeise, 44 Wis. 96; Bartlett v. Secor, 56 Wis. 520; Tracy 
 v. Newton, 57 Iowa 210; Heinrichs v. Terrell, 65 Iowa 25; Bitter v. 
 Seathoff, 98 111. 266; White . Hopeman, 43 Mich. 267; 8. c. 38 Am. 
 Rep. 178; Brown v. Cockerell, 33 Ala. 38. 
 
 TO Carpenter v. Monks (Mich.), 45 N. W. Rep. 477; Hughes v. Pick- 
 ering, 14 Pa. St. 297. See, Wilcox v. Smith (Wash. 1905), 80 Pac. Rep. 
 803. 
 
 71 Liddon v. Hodnett, 22 Fla. 442. " A possession which is adverse 
 and actually known to the true owner is equivalent to a possession which 
 is open and notorious and adverse." McCaughn v. Young (Miss. 1905), 
 37 So. Rep. 839. 
 
 72 Thompson V. Kauffelt, 110 Pa. St. 209, 1 Atl. Rep. 867; Thompson 
 
 45 705
 
 498 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 sumption of law is that it is subordinate and not adverse to 
 the lawful owner. 73 The fact that the disseisor accepts a 
 tlrrd of conveyance to the land which he previously had in 
 adverse possession does not necessarily destroy the adverse 
 character of his possession. 74 And where property held sub- 
 ordinately descends upon the tenant's death, and is occupied 
 by his widow, the holding by her is presumed, in the ab- 
 sence of any proof to the contrary, to continue to be subordi- 
 nate to the rightful owner. 75 
 
 498. Adverse possession, when entry was lawful. It is a 
 legal maxim that when once the seisin is proved to be in 
 one, it will be presumed to continue in that person until the 
 presumption is overthrown by the proof of facts inconsistent 
 therewith. 76 If, therefore, the entry is made with the con- 
 sent of the owner, and subservient to his claim of title, the 
 law will presume that the continued possession is subordinate 
 to the superior title of the owner. 77 So it has been held where 
 one enters under a bond for a deed without paying the con- 
 sideration, or with the intent to purchase, and not to claim ad- 
 verse title to the owner, he cannot claim title by adverse 
 possession. 78 The possession of a devisee is not presumed to 
 
 v. Phila., etc., Coals Iron Co. (Pa.), 19 Atl. Eep. 346; Holbrook f. 
 Bowman, G2 N. H. 313. 
 
 73 Smith v. Burtis, 6 Johns. 218; Jackson v. Sharp, 9 Johns. 163; 
 Stevens V. Taft, 11 Gray 36; Greer V. Tripp (Cal.), 12 Pac. Rep. 301; 
 McLean V. Smith, 106 N. C. 272, 11 S. E. Rep. 184; Spencer f. O'Neill, 
 100 Mo. 49, 12 S. W. Rep. 1054; Boohe f. Best, 75 Texas 568, 12 S. W. 
 Rep. 1000; Monk V. Wilmington (N. C. 1904), 49 S. E. Rep. 345. 
 
 7*Garvin V. Garvin, 31 S. C. 581, 19 S. E. Rep. 507; Sanders V. 
 Logue, 88 Tenn. 355, 12 S. W. Rep-: 722. 
 
 75 Drury v. Saunders, 77 Texas 278. 
 
 76 Long v. Mast, 11 Pa. St. 189; Babcock v. Utter, 1 Abb. App. 27; 
 Stephens v. McCormick, 5 Bush 181. 
 
 77 Union Pac. Ry. Co. V. Kindred, 43 Kan. 134; 23 Pac. 112; Curtis 
 v. LaGrande Water Co. (Ore.), 23 Pac. Rep. 808. 
 
 78Knox V. Hook, 12 Mass. 329; Brown v. King, 5 Mete. 173; Vrooman 
 v. Shepherd, 14 Barb. 441; Den v. Kip, 29 N. J. L. 351; CoogJer v. 
 Rogers (Fla.), 7 So. Rep. 391; Anderson v. McCormick, 18 Ore. 3G1, 22 
 706
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 498 
 
 be adverse to the creditors of the deceased. 79 The same rule 
 is held to apply to possession under a void judicial sale. 80 
 But if the purchase money has been paid, the possession is 
 presumed to be adverse. 81 Such also is the rule in regard 
 to the possession of the joint estate by one of several tenants 
 in common. 82 Such also is the case with the possession of the 
 
 Pac. Rep. 1062; Mhoon v. Cain, 77 Texas 316, 14 S. W. Rep. 24j 
 Stamper v. Griffin, 12 Ga. 457; Jackson u. Foster, 12 Johns. (N. Y.) 
 490; Re Public Parks Depart., 73 N. Y. 560; Den v. Kip, 2 Dutch. (N. 
 J.) 351; Harris v. Richey, 56 Pa. St. 395; Osterman v. Baldwin, 6 
 Wall. (U. S.) 116; Hermans v. Schmaltz, 7 Fed. Rep. 566; s. c. 10 
 Biss. (U. S.) 323. See Adams v. Fullam, 47 Vt. 558; Walker v. Craw- 
 ford, 70 Ala. 567; Potts v. Coleman, 67 Ala.* 221; Beard v. Ryan, 78 
 Ala. 37 ; Moring v. Abies, 62 Miss. 263 ; Benson v. Stewart, 30 Miss. 49 ; 
 Core v. Faupel, 24 W. Va. 238; Williams v. Cash, 27 Ga. 507. "In 
 ejectment, where defendant claims by adverse possession, contracts 
 signed by him with plaintiff for the purchase of the land were admissi- 
 ble in evidence." Olson v. Burk (Minn. 1905), 103 N. W. Rep. 335. 
 " Where a party goes into possession of land under a parol purchase, and 
 surrenders it before having paid any of the purchase money, his pos- 
 session will not inure to his benefit, as against the one from whom he 
 purchased." Moore v. Mobley (Ga. 1905), 51 S. E. Rep. 351. 
 
 79 Roberts v. Smith, 21 S. C. 445. "Where a devisee for life in pos- 
 Bession suffered the property to be sold for nonpayment of taxes, and 
 his wife became the purchaser at the tax sale, her possession could not 
 be adverse to his so as to create a title in her by limitation." Blair v. 
 Johnson (111. 1905), 74 N. E. Rep. 747, 215 111. 552. 
 
 so Hall f. Hall, 27 W. Va. 468. 
 
 si Brown v. King, 5 Mete. 173 ; Pace v. Payne, 73 Ga. 670 ; Newton v. 
 Mayo, 62 Ga. 11; Taylor v. Dugger, 66 Ala. 444; Moring v. Abies, 62 
 Miss. 263; Niles v. Davis, 60 Miss. 750; Catlino v. Decker, 38 Conn. 
 262; Potts v. Coleman, 67 Ala. 221; Tillman f. Spann, 68 Ala. 102; 
 Taylor v. Dugger, 66 Ala. 445. Compare Core v. Faupel, 24 W. Va. 238. 
 
 82 McClung v. Ross, 5 Wheat. 124 ; Zeller's Lessee v. Eckert, 4 How. 
 295; Campbell v. Laclede Gas Co., 84 Mo. 352; Campau v. Campau, 44 
 Mich. 31; Neely v. Neely, 79 N. Car. 478; Linker v. Benson, 67 N. Car. 
 150; Foulke v. Bond, 41 N. J. L. 527; Stevens v. Wait, 112 111. 544; 
 Ball v. Palmer, 81 111. 370; Knowles v. Brown, 28 N. W. Rep. (Iowa) 
 409; Burns v. Byrne, 45 Iowa 285; Bath v. Valdez, 11 Pac. Rep. (Cal.) 
 724; Tully v. Tully, 9 Pac. Rep. (Cal.) 841; Unger v, Mooney, 63 Cal. 
 686; Millard v. McMullin, 68 N. Y. 352; Woollsey v. Morss, 19 Hun (N. 
 Y. 273; Culver v. Rhodes, 86 N. Y. 348; Clymer v. Dawkins, 3 How. 
 (U. S.) 674; McClung v. Ross, 5 Wheat. (U. S.) 116; Union, etc., M. 
 
 707
 
 498 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 cestui que trust and trustee under the trust, 83 and the pos- 
 session of a guardian, and of the mortgagor and mortgagee. 8 * 
 They are all subordinate to the holder of the paramount paper 
 title. So, also, where one has held possession subordinate to 
 the claims of another to some superior right in or title to the 
 land, the widow, heir or devisee of the person having such 
 possession would presumptively receive such possession in 
 subordination to the superior right or title in the other per- 
 son. 85 And where one holds over after the termination of a 
 
 Co. v. Taylor, 100 U. S. 37; Lapeyre v. Paul, 47 Mo. 590; McQuiddy v. 
 Ware, 67 Mo. 74. See ante, Sec. 186. 
 
 83 perry on Trusts, Sees. 863, 864; Janes v. Throckmorton, 57 Cal. 
 368; Hearst v. Pujol, 44 Cal. 235; Oliver v. Piatt, 3 How. (U. S.) 333; 
 Elmendorf v. Taylor, 10 Wheat. (U. S.) 152; Chick v. Rollins, 44 Me. 
 104; Roberts V. Littlefield, 48 Me. 61; Milner V. Hyland, 77 Ind. 458; 
 Lewis v. Hawkins, 23 Wall. (U. S.) 119; Seymour v. Treer, 8 Wall. 
 (U. S.) 202; Prevost V. Gratz, 6 Wheat. (U. S.) 481; Norris's App. 
 71 Pa. St. 106; Janes v. Throckmorton, 57 Cal. 368; Catlion v. Decker, 
 38 Conn. 362; McCarthy v. McCarthy, 78 Ala. 546; Edwards v. Uni- 
 versity, 1 D. & B. Eq. (N. Car.) 325; s. c. 30 Am. Dec. 170; Smith 
 V. King, 16 East 283; Gaylord V. Respass, 92 N. C. 553; Saunders V. 
 Farmer, 62 N. H. 572. That is, the cestui que trust may disseise his 
 trustee and divest him of his legal estate, if the intention to disseise 
 is manifest, although his possession is usually presumed to be subject 
 to the trust. Whiting V. Whiting, 4 Gray 241. It has been held that 
 in no case will the possession of the trustee be deemed to be adverse to 
 the cestui que trust. He cannot disseise the cestui que trust. Zeller's 
 Lessee v. Eckert, 4 How. 295; Decouche v. Savetier, 3 Johns. Ch. 216. 
 But see contra, Schlessinger v. Mallard, 70 Cal. 326, 11 Pac. 728; Hall 
 17. Ditto (Ky.), 12 S. W. 941. But a disseisin of the trustee will 
 work a disseisin of the cestui que trust. See ante, Sec. 337. "Where 
 a trustee and his heir at law have held possession of land for 20 years, 
 a grant will be presumed." Uzzell V. Horn (S. C. 1905), 51 S. E. Rep. 
 253, 71 S. C. 426. 
 
 s* See ante, Sec. 247. 
 
 ssOury v. Saunders, 77 Texas 278, 138 S. W. 1030; Dean t?. Tucker, 
 58 Miss. 487; Leonard V. Hart, 2 Atl. Rep. (N. J.) 136; Wilkerson f. 
 Thompson, 82 Mo. 317; Elwell V. Hinckley, 138 Mass. 225; Silva V. 
 Wimpenny, 136 Mass. 253; Creekmur v. Creekmur, 75 Va. 431; Whip- 
 pie v. Whipple, 109 111. 418; Allen v. Allen, 58 Wis. 202; Eddy v. St. 
 Mars, 53 Vt. 462; s. c. 38 Am. Rep 692; Roebke v. Andrews, 26 Wis. 
 311; Woodward V. McReynolds, 2 Pin. (Wis.) 268; Bartlett v. Secor, 
 708
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 499 
 
 lawful estate he is tenant at sufferance, and does not by such 
 holding over disseise the reversioner. 86 The continued posses- 
 sion of the defendant, in an ejectment or equitable action for 
 quieting of title, after decree or judgment has been given 
 for the plaintiff, is presumed to be subordinate to the right 
 of the plaintiff as determined by the court. 87 But these legal 
 presumptions in the different cases mentioned are all dis- 
 putable presumptions ; and although it has been held that ad- 
 verse possession cannot be acquired by one co-tenant against 
 the others, yet now it is the universal rule that in any of the 
 above mentioned cases of lawful entry the lawful and subordi- 
 nate holding may be changed to a hostile and adverse posses- 
 sion by a distinct and unequivocal disavowal of the owner's 
 superior title, and actual notice to him of such disclaimer. 
 In all these cases the disavowal or disclaimer must be accom- 
 panied and established by visible and notorious acts, inconsist- 
 ent with the ownership of the supposed disseisee, such as a 
 refusal to recognize the claim to the profits, or a share there- 
 in. 88 
 
 499. Disseisor's power to alien. It is generally accepted, 
 that mere naked possession will be sufficient to enable the one 
 in possession to make a deed of conveyance with or without 
 covenants of warranty, and the grantee would thereby acquire 
 
 56 Wis. 520; Plimpton v. Converse, 44 Vt. 158; Morrill v. Titcomb, 8 
 Allen (Mass.) 100; Sherman V. Kane, 86 N. Y. 57; Alexander V. 
 Wheeler, 69 Ala. 332; Collins V. Johnson, 57 Ala. 304; Davenport V. 
 Ledring, 52 Iowa 365. Compare Heiskell v. Cobb, 11 Heisk. (Tenn.) 
 638; Ford V. Holmes, 61 Ga. 419. 
 
 See ante, Sec. 171. 
 
 87 Wool worth v. Root, 40 Fed. Rep. 723. But see Bath v. Valdez, 70 
 Cal. 350, 11 Pac. Rep. 724. As to want of presumptions of law that 
 real estate is held adversely, see Monk t. Wilmington (N. C. 1904), 49 
 S. E. Rep. 345. 
 
 ssLafavour r. Roman, 3 Allen 355; Roberts v. Morgan, 30 Vt. 319; 
 Holley v. Hawley, 39 Vt. 534; Jackson V. Moore, 13 Johns. 510; Ripley 
 t>. Bates, 110 Mass. 162; Watson v, Sutro (Cal.), 24 Pac. Rep. 172; 
 Mitchell v. Campbell (Oreg. ), 24 Pac. Rep. 455, vendee in possession; 
 Woolworth v. Root, 40 Fed. 723. See ante, Sees. 171, 186, 247. 
 
 709
 
 500 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 a good title which can only be defeated by the true owner. 
 So much the more certain is it that, where such possession 
 amounts to a disseisin, and the intruder has therefore gained 
 a title even against the real owner, the disseisor has sufficient 
 seisin to convey the estate. 89 In fact, according to the com- 
 mon law, he alone had the power to make a conveyance. The 
 disseisee had nothing but a chose in action, which was not as- 
 signable, 90 The estate also descends to the disseisor 's heirs, 
 and at common law the descent cast in such a case vested in 
 the heir so complete a title that the right of entry was taken 
 away, and the estate could only be defeated by an action for 
 recovery of the possession. 91 
 
 500. Betterments. At common law if a bona fide holder 
 of a defeasible title made improvements, while he was in pos- 
 session of the land, he could not claim compensation for them 
 from the rightful owner. The improvements became a part 
 of the realty, since they were attached without the consent of 
 the lawful owner. Nor could a bona fide disseisor claim the 
 right to remove them. 92 But where the real owner in his 
 ejectment suit asked for judgment for mesne profits, the bona 
 fide disseisor could off-set the same by his claim for his im- 
 provements. 93 Statutes, however, have been passed in some 
 of the States enabling the disseisor to bring an original action 
 for improvements. 94 
 
 8 Currier v. Gale, 9 Allen 525 ; Slater v. Rawson, 6 Mete. 439 ; Hub- 
 bard v. Little, 9 Cush. 475 ; Overfield v. Christie, 7 Serg. & R. 173. See 
 Christy v. Alford, 17 How. 601; Haynes V. Boardman, 119 Mass. 414; 
 Alexander r. Stewart, 50 Vt. 87. 
 
 o See post, Sec. 559. 
 
 9i3 Washburn on Real Prop. 150; Co. Lit. 238 a; Smith v. Burtis, 6 
 Johns. 217. 
 
 2 Powell v. M. & B. Mfg. Co., 3 Mason 369; 2 Kent's Com. 334-338; 
 West t?. Stewart, 7 Pa. St. 122; ante, Sec. 2. 
 
 3 Murray v. Gouverneur, 2 Johns. 438; Jackson v. Loomis, 4 Cow. 
 168; Green v. Biddle, 8 Wheat. 181. 
 
 9* 3 Pars, on Con. 221; Cooley on Torts 433; 2 Kent's Com. 335. See 
 Bright v. Boyd, 1 Story 494; Lamar v. Minter, 13 Ala. 31; Fisher v. 
 Edington, 12 Lea 189. 
 710
 
 CH. XXI.] TITLE BY ADVERSE POSSESSION. 501 
 
 501. Title by adverse possession How defeated. The 
 title which is acquired by adverse possession or by disseisin 
 is not an absolute title. It may be defeated by the rightful 
 owner. Disseisin leaves in the owner only a chose in action, 
 for the vindication of which are provided two principal reme- 
 dies. One is the right of entry without the aid of the courts, 
 and the other is the recovery of the possession by the judgment 
 of the court. A mere re-entry upon the land by the disseisee 
 or by his authorized agent, with the intention to recover the 
 seisin, is sufficient to regain the seisin, even though the dis- 
 seisor is not actually expelled, since the joint-possession by 
 them destroys the element of the exclusiveness, necessary to 
 disseisin. 95 And although a casual entry without an intention 
 to regain the seisin, is not sufficient for this purpose, it is not 
 necessary for the disseisee to make any express declaration of 
 his intention to the disseisor. 96 So also does an abadnonment 
 of the possession by the disseisor revest the seisin in the rightful 
 owner. 97 Of course the seisin so gained may be again lost by 
 an ouster, and such an ouster is a redisseisin. 98 The exact 
 form of action, where the aid of a court is called into requisi- 
 tion, depends upon the local laws and practice. The usual 
 remedy is the common law action of ejectment. 
 
 s " Where the holder of the legal title to land enters on the same 
 under a claim of right, and holds possession even jointly with another, 
 it is an interruption of the continuous adverse possession of the other." 
 Chastang V. Chastang (Ala. 1904), 37 So. Rep. 799. "An acknowledg- 
 ment by adverse claimant of the owner's title before the statute has 
 run in his favor breaks the continuity of his adverse possession, and 
 it cannot be tacked to any subsequent possession." Olson f. Burk 
 (Minn. J905), 103 N. W. Rep. 335. 
 
 Peabody v. Hewett, 52 Me. 46; Brickett v. Spofford, 14 Gray 514; 
 Burrows v. Gallup, 32 Con. 499 ; O'Hara v. Richardson, 46 Pa. St. 390. 
 
 9T Melvin v. Proprs., etc., 5 Mete. 15; Sawyer v. Kendall, 10 Cush. 
 241; Potts v. Gilbert, 3 Wash. C. Ct. 475; Cleveland v. Jones, 3 Strobh. 
 479 n. Unless there are two joint disseisors, when the abandonment by 
 one would only make the other disseisor sole seised. Allen v. Holton, 
 20 Pick. 458. 
 
 3 Washburn on Real Prop. 130. 
 
 711
 
 502 TITLE BY ADVERSE POSSESSION. [PART III. 
 
 502. Title by adverse possession How made absolute. 
 Inasmuch as disseisin leaves only a chose in action in the dis- 
 seisee, and the disseisor acquires thereby a title good and per- 
 fect against all the world except the true owner; if, for any 
 reason, the law takes away the right of action, the title will 
 become absolute in the disseisor." The remedies for the re- 
 covery of real property may be barred by one of two causes, 
 first, by the lapse of time under the Statute of Limitations, 
 and secondly, by estoppel. These will constitute the subjects 
 of the two following sections. 
 
 98 " Adverse possession of land for the statutory period not only bars 
 an action to recover the same, but also confers title to the land." 
 Franklin v. Cunningham (Mo. 1905), 86 S. W. Rep. 79. For effect 
 upon title of mineral owner, by adverse possession of the surface of 
 the land and vice versa, where the titles have been separated, see White, 
 Mines & Min. Rem., Sec. 436. See, also, Brady v. Brady (N. Y. 1903), 
 84 N. Y. S. 1119. Where the minerals in land are reserved in a deed, 
 the occupancy of the surface of the land by the grantee thereof is not 
 adverse as to the underlying minerals. Manning v. Kansas & T. Coal 
 Co. (Mo. 1904), 81 S. W. Rep. 140. One who secretly enters on coal 
 through an opening in land other than that in which the coal is sit- 
 uated cannot obtain title to the coal by adverse possession, even by 
 continuous mining. Pierce v. Barney (Pa. 1904), 58 Atl. Rep. 152, 
 209 Pa. 132. 
 712
 
 SECTION IV. 
 
 STATUTE OF LIMITATIONS. 
 
 SECTION 503. What the statute enacts. 
 
 504. Adverse possession Continuous and uninterrupted. 
 
 505. Against whom the statute runs. 
 
 506. How and when statute operates. 
 
 507. Effect of the statute. 
 
 503. What the statute enacts. In general, every Statute 
 of Limitations enacts that no action for the recovery of real 
 property can be maintained, and no such right of entry, if 
 any exists, can be exercised, unless instituted within the 
 period of time limited by the statute, after the right has 
 accrued. The first statute for the limitation of real actions 
 was passed in 32 Hen. VIII, ch. 2, and a more general one in 
 21 Jae. I. 1 But the limitation of actions is governed by the 
 lex fori, 2 and as each State in the American Union has its 
 own Statute of Limitations, varying widely in detail, the 
 limits of this book will only permit of a discussion of the 
 general effect of such statutes, referring the student to 
 the different statutes for the details. The statute, 21 
 'Jac. I, placed the limitation of actions for the recovery of 
 real property at twenty years from the time the right of 
 action accrued, and this period has been more or less adopted 
 in this country, although in a number of States the period has 
 been reduced to ten years, while in others a different period 
 has been established. 8 
 
 1 Ang. on Lira. 1-6. 
 
 2 Ang. on Lim. 65. Statutes of limitations, so called, affect the rem- 
 edy, but not the right of action. Necessarily, therefore, the lex fort 
 must control in all matters of procedure. Van Schuyver v. Hartman 
 (Alaska 1902), 1 Alaska 431. 
 
 sin Montana, it is three years. Dunphy t?. Sullivan, 117 U. S. 346. 
 
 713
 
 504 STATUTE OP LIMITATIONS. [PART III. 
 
 504. Adverse possession Continuous and uninterrupted. 
 But in all of the States the person who claims the benefit 
 of the statute, together with his privies, must have held ad- 
 verse possession for the entire period of limitation. That is, 
 there must not only have been an actual and complete dis- 
 seisin, as explained in the preceding section, but such disseisin 
 must be continued and uninterrupted during the statutory 
 period. Any discontinuance or abandonment of the posses- 
 sion will prevent the statute from operating. 4 Any yielding 
 of possession to the claim of the owner, or abandonment of 
 
 See generally Detweiler v. Schultheis, 122 Ind. 155, 23 N. E. Rep. 709 ; 
 Louvall r. Gridley, 70 Cal. 507, 11 Pac. Rep. 777; Charles v. Morrow, 
 9!) Mo. 638, 12 S. W. Rep. 903; Norris v. Moody, 84 Cal. 143, 24 Pac. 
 Rep. 37. " As a general rule, statutes of limitations will not be given 
 a retroactive effect, unless it clearly appears that the Legislature so 
 intended." Curtis v. Boquillas Land & Cattle Co. (Ariz. 1904), 76 Pac. 
 Rep. 612. Statutes of limitations may be retrospective in nature, 
 provided they do not impair contracts or disturb vested rights. Edel- 
 stein V. Carlisle (Colo. 1904), 78 Pac. Rep. 680. 
 
 *Doswell V. De La Lanza, 20 How. 32; Thomas V. Marshfield, 13 
 Pick. 250; McAninch V. Smith, 19 Mo. App. 240; Stewart v. Duffy, 116 
 111. 47; Creekmur V. Creekmur, 75 Va. 430; Bell V. Denison, 56 Ala. 
 444; Beard v. Ryan, 78 Ala. 37; Laramore v. Minish, 43 Ga. 282; 
 Morse V. Williams, 62 Me. 445; Soule v. Barlow, 49 Vt. 329; Bliss 
 v. Johnson, 94 N. Y. 235; Wheeler V. Spinola, 54 N. Y. 377; Mc- 
 Mullin v. Erwin, 58 Ga. 427; Bracken v. Jones, 63 Texas 184; Sparrow 
 v. Hovey, 44 Mich. 65; linger v. Mooney, 63 Cal. 586; s. c., 77 Am. 
 Rep. 100; Williams V. Wallace, 78 N. Car. 354; Malloy v. Bruden, 86 
 N. Car. 251; Ruffin v. Overly, 105 N. C. 78, 11 S. E. Rep. 251; Wren 
 v. Parker, 57 Conn. 529, 18 Atl. Rep. 790; Warren V. Fredericks, 76 
 Tex. 647, 13 S. W. Rep. 643; Morris V. McClary, 43 Minn. 346, 46 N. 
 W. Rep. 238; Louisville & M. R. R. Co. v. Philyan, 88 Ala. 264, 6 So. 
 Rep. 837; Garlington V. Copeland (S. C.), 10 S. E. Rep. 616; Deans V. 
 Wilcoxen (Fla.), 7 So. Rep. 163; Hicklin v. McClear, 18 Oreg. 126, 22 
 Pac. Rep. 1057. " Adverse possession, to be sufficient to defeat the title 
 of the real owner, must be hostile, actual, visible, notorious, exclusive, 
 continuous and under a claim of "title." Roby v. Calumet & Co. Canal & 
 Dock Co. (111. 1904), 71 N. E. Rep. 822, 211 111. 173. "Notice of 
 claim of adverse possession by grantor remaining in possession may be 
 brought home to his grantee by acts so open, notorious, and hostile 
 as to show adverse claim." Kelly v. Palmer (Minn. 1903), 91 N. W. 
 Rep. 578. 
 
 714
 
 CH. XXI.] STATUTE OF LIMITATIONS. 504 
 
 actual possession, although with no intention to give up his 
 claim of adverse possession; or, if at any time during the 
 statutory period the rightful owner could not find an actual 
 occupant against whom to bring his action of ejectment ; 5 any 
 of these acts or incidents will constitute such a discontinuance 
 of the disseisin or adverse possession as will prevent the 
 operation of the statute. 6 There must, however, be a success- 
 ful interruption of the adverse possession. An ineffectual 
 protest against the adverse use or possession will not break its 
 continuity. 7 And so, likewise, is there no interruption of 
 the adverse possession where there have been only occasional 
 acts of trespass with no apparent intention to assert and 
 exercise the right of possession, 8 or where there is merely a 
 temporary non-user, without any pressure from the disseisee. 9 
 So, also, where the disseisor has held possession without color 
 of title for some time and then took a deed from one whom 
 he supposed to be the owner, there is no discontinuance or 
 change of his original adverse possession, and he can claim 
 
 s But it must be something more than mere temporary occupation 
 of the building. Stettnische v. Lamb, 18 Neb. 619; Stettnische v. Lamb, 
 26 N. W. Rep. (Neb.) 374; De la Vega v. Butler, 47 Tex. 529; Harper 
 v. Tapley, 35 Miss. 506; Costello V. Edson, 44 Minn. 135, 46 N. W. Rep. 
 299; Thompson v Kauffelt, 110 Pa. St. 209, 1 Atl. Rep. 267; Van 
 Schuler v. Hartman (1902), 1 Alaska 431. 
 
 Pederick v. Searle, 5 Serg. & R. 240; Den t>. Mulford, Hayw. 320; 
 Webb f. Richardson, 42 Vt. 465; San Francisco V. Fulde, 37 Cal. 349; 
 Ruffin v. Overly, 105 N. C. 78, 11 S. E. Rep. 251; Bliss V. Johnson, 94 
 N. Y. 235; Sherman v. Kane, 86 N. Y. 56; Steeple v. Downing, 60 Ind. 
 478; Crispin v. Hannavan, 50 Mo. 536; Malloy v. Bruden, 86 N. Car. 
 251; Virgin v. Land, 32 Ga. 572; Armstrong v. Merrill, 14 Wall. (U. 
 S.) 120; Susquehanna, etc., R. Co. V. Quick, 68 Pa. 189; Griffith V. 
 Schwenderman, 27 Mo. 412. 
 
 i Jordan v. Lang, 22 S. C. 159. See Clark v. White (Ga. 1904), 48 
 S. E. Rep. 357. 
 
 Duren v. Sinclair, 22 S. C. 361; Bell v. Denson, 56 Ala. 444. See 
 Doe v. Eslava, 11 Ala. 1028; Raynor v. Lee, 20 Mich. 384. Compare 
 Walley f. Small, 29 Iowa 288; Hoffman v. White (Ala), 7 So. Rep. 
 816. 
 
 Hesperia Land, etc., Co. v. Rogers, 83 Cal. 10, 23 Pac. Rep. 196; 
 Jones v. Gaddis (Miss.), 7 So. Rep. 489. 
 
 715
 
 504 STATUTE OF LIMITATIONS. [PART III. 
 
 against the real owner a continuous adverse possession for the 
 entire time of his possession before and after receiving the 
 deed of conveyance. 10 
 
 But it need not be a continuous adverse possession in the 
 one person. The title by disseisin may be assigned, and it 
 descends to the disseisor's heirs. If, therefore, two or three 
 disseisors hold the land successively and in privity with each 
 other, whether by purchase or by descent, and their several 
 periods of holding make up the requisite statutory period, 
 the owner will be just as effectually barred as if the land had 
 been held by one person during the entire time. 11 If, however, 
 the first disseisor held possession without color of title and 
 his deed of conveyance purported to convey a larger tract 
 of land than he had had in his actual possession, he con- 
 veyed to his grantee a title by adverse possession to only 
 that part of the land of which he had actual possession. And 
 the grantee's adverse constructive possession of the remainder 
 of the land covered by the description in the deed, began with 
 
 10 Sanders v. Logue, 88 Tenn. 355, 12 S. W. 722; Brown v. Brown, 
 106 N. C. 451, 11 S. E. Rep. 647; Jones v. Gaddis (Miss.), 7 So. Rep. 
 489. But see Hods v. Tiernan (Pa. 1904), 25 Pa. Sup. Ct. 14. 
 
 11 Melvin v. Proprietors, etc., 5 Mete. 15; Sawyer v. Kendall, 10 
 Cush. 241; Alexander V. Pendleton, 8 Cranch 462; Doe V. Campbell, 
 10 Johns. 477; Jackson v. Leonard, 9 Cow. 653; Doe v. Barnard, 13 
 Q. B. 945; Outcalt v. Ludlow, 32 N. J. 239; Clock v. Gilbert, 39 Conn. 
 94; Coogler v. Rogers (Fla.), 7 So. Rep. 391; Faloon v. Sinshauser, 
 130 111. 647, 649, 22 N. E. Rep. 835; Riggs V. Girard (111.), 24 N. E. 
 Rep. 1031. But the possession of the tenants of dower or curtesy can- 
 not be tacked on to the possession of the husband or wife, respectively, 
 in order to make up the statutory period of adverse possession. Doe V. 
 Wing, 6 C. & P. 538, and cases cited supra. See, generally, in support 
 of the text, Jeffersonville, etc., R. Co. V. Oyler, 82 Ind. 394; Ham- 
 mond V. Crosby, 68 Ga. 767; Brownson V. Scanlan, 59 Texas 222; Fur- 
 long v. Garrett, 44 Wis. Ill; McNeely v. Langdan, 22 Ohio St. 32; Mc- 
 Entire r. Brown, 28 Ind. 347; Hanson V. Johnson, 62 Md. 25; *. c. 50 
 Am. Rep. 199; Riggs V. Fuller, 54 Ala. 141; San Francisco v. Fulde, 
 37 Cal. 349; Shuffleton v. Nelson, 2 Sawy. (U. S.) 540; Lea r. Polk 
 County, 21 How. (U. S.) 493; Doswell v. De Lanza, 20 How. (U. S.) 
 29. See Jackson v. Snodgrass (Ala. 1904), 37 So. Rep. 246; Jones r. 
 Herrick (Wash. 1904), 77 Pac. Rep. 798. 
 
 716
 
 CH. XXI.] STATUTE OF LIMITATIONS. 505 
 
 his entry in possession of the land under color of title. 12 This 
 rule has been sustained and applied where the successive 
 holders, although claiming under each other, have not acquired 
 title by any deed or instrument in writing, but merely by 
 parol contract. 13 But there must be privity of estate between 
 the successive disseisors, in order that their several holdings 
 may be tacked together to produce a continuity of adverse 
 possession. 14 And it has been held that an involuntary sale, 
 as by a sheriff in execution of a judgment, would not create 
 the necessary privity. 15 But in some of the States the entire 
 doctrine is repudiated, and a continuous holding by one 
 person or his heirs for his statutory period is required to raise 
 a bar to the action by the owner for the recovery of his land. 16 
 
 505. Against whom the statute runs. The statute runs 
 against the rightful owner, and all other persons standing in 
 privity with him. But the statute only bars the actions when 
 
 12 Barks v. Mitchell, 78 Ala. 161. 
 
 is Smith 0. Chapin, 31 Conn. 530; Minims V. Ewing, 15 Lea 667; 
 Brown V. Brown, 106 N. C. 451, 11 S. E. Rep. 647; Faloon V. Simis- 
 hauser, 130 111. 649; 22 N. E. Rep. 835; Kendrick v. Latham (Fla.), 6 
 So. Rep. 871. See Robinson v. Downing Co. (Ga. 1904), 48 S. E. Rep. 
 429. 
 
 "Austin v. Rutland R. R., 45 Vt. 215; San Francisco v. Fulde, 37 
 Cal. 349; Shuffleton V. Nelson, 2 Sawyer 540; Simpson V. Downing, 23 
 Wend. 316; Locke v. Whitney, 63 N. H. 597; Louisville & N. R. Co. v. 
 Philyaw, 88 Ala. 264, 6 So. 37; Sawyer v. Kendall, 10 Gush. (Mass.) 
 241; Cahill v. Palmer, 44 N. Y. 478. And see Fanning v. Wilcox, 3 
 Day 258 ; McCoy v. Dickinson College, 5 Serg. & R. 254 ; Clark v. White 
 (Ga. 1904), 48 S. E. Rep. 357. "A claim of title by adverse possession 
 exercised by another is of no avail where the chain of title does not 
 connect the claimant with the one exercising the possession." 64 N. J. 
 Eq. 147, affirmed. Murray v. Pannaci (N. J. 1904) 57 Atl. Rep. 1132. 
 
 is Kendrick 0. Latham (Fla.), 6 So. Rep. 871. 
 
 i 3 Washburn on Real Prop. 147 ; King v. Smith, Rice 10. This the- 
 ory has lately been confirmed by the Supreme Court of South Carolina. 
 Ellen v. Ellen, 16 S. C. 132; Condon v. Morgan, 14 S. Car. 587. "To 
 make up the statutory period of adverse possession, the possession of 
 an heir may be tacked to that of his ancestor." Kilgore v. Kirkland 
 (8. C. 1904), 48 S. E. Rep. 44. 
 
 717
 
 505 STATUTE OP LIMITATIONS. [PART III. 
 
 the statutory period has elapsed after the time when the right 
 of action accrued. The statute, therefore, does not begin to 
 run against a person until he has a right to bring the action. 17 
 "Where the tenant of a particular estate is disseised and is 
 barred by the statute, since the reversioner is not entitled to 
 possession until the termination of the particular estate, the 
 statute will not affect his right of action during the continu- 
 ance of the particular estate. 18 The disseisor acquires an 
 absolute title only to the tenant's estate; the reversioner is 
 only disseised from the time when the tenant's estate is at an 
 end, and the reversioner has a right to recover the possession. 19 
 But the heir is disseised immediately, and the statute runs 
 against him at once, where the widow undertakes to convey 
 lands in fee, which had not been assigned to her as dower. 20 
 And so, likewise, at common law, the disseisin of the mort- 
 gagor is an immediate disseisin of the mortgagee, and vice 
 
 "See Radcliffe v. Scruggs, 96; Skinner f. Williams, 85 Mo. 489; 
 Mason V. Crowder, 86 Mo. 261; Wallace v. Presb. Church, 111 Pa. 
 St. 164; Wilhoit v. Tubbs, 83 Cal. 279, 23 Pac. Rep. 386; Miller v. 
 Texas, etc., Ry. Co., 132 U. S. 662; Smith v. Exchange Bank, 110 Pa. 
 St. 508, 1 Atl. Rep. 160; Tennessee, etc., R. R. Co. v. Mabry, 85 Tenn. 
 47, 1 S. W. Rep. 511; Strabala v. Lewis (Iowa), 45 N. W. Rep. 881; 
 Miller v. Foster, 76 Texas 479, 13 S. W. 529; Chase v, Cartwright 
 (Ark.), 14 S. W. Rep. 90. "Limitation cannot begin to run against 
 an action of ejectment in a federal court prior to the time when the 
 patent for the land under which plaintiff claims was issued by the 
 United States." Tegarden v. Le Marchel (U. S. C. C., Ark. 1904), 129 
 Fed. Rep. 487. 
 
 is Potter v. Kimball (Mass. 1904), 71 N. E. Rep. 308. "The posses- 
 sion of a life tenant, however long or continuous, is not adverse to the 
 remainderman." Morrison V, Fletcher (Ky. 1905), 84 S. W. Rep. 548, 
 27 Ky. Law Rep. 124. 
 
 Devyr v. Schaefer, 55 N. Y. 451; Jackson v. Schoonmaker, 4 Johns. 
 390; Miller v. Ewing, 6 Cush. 34; Gernet v. Lynn, 81 Pa. St. 94; 
 Pinckney v. Burrage, 30 N. J. L. 21; Miller r. Foster, 76 Texas 479, 
 13 S. W. Rep. 529; Dupon v. Walden, 84 Ga. 690, 11 S. E. Rep. 451. 
 " The possession of the grantee of a life tenant does not become ad- 
 verse to the remainderman until the life tenant's death, no cause of 
 action for possession accruing to the latter till then." Beatty v. Cly- 
 mer (Tex. Civ. App. 1903), 75 S. W. Rep. 540. 
 
 20 Smith v. Shaw, 150 Mass. 297, 22 N. E. Rep. 924. 
 718
 
 CH. XXI.] STATUTE OF LIMITATIONS. 505 
 
 versa, 21 the reason being that at common law both mortgagor 
 and mortgagee, or either of them, can bring the necessary 
 possessory action for the recovery of the land from the posses- 
 sion of the disseisor. But where the mortgagee's right to 
 the possession before default is taken away, his right of action 
 does not accrue until default in payment, and hence in case 
 of disseisin of the mortgagor before default, the Statute of 
 Limitations would not begin to run against the mortgagee, 
 until there has been a default. 22 
 
 In addition to this restriction upon the operation of the 
 statute, the statutes generally contain a saving clause, prevent- 
 ing the statute from running against certain persons who are 
 under disabilities. 28 Although there may be a different rule 
 prevailing in one or two of the States, in order that the dis- 
 ability, such as coverture or infancy, etc., may prevent the 
 operation of the statute, it must have existed at the time that 
 the statute began to run. If it arises subsequently it can have 
 no effect; a succession of disabilities is not permitted to 
 prevent the operation of the statute beyond the time of sus- 
 pension from the first disability. 24 It will not stay the opera- 
 tion of the statute. And this rule governs whether the dis- 
 ability arises subsequently through the acts of the parties, as 
 in the case of a subsequent marriage of a feme sole,- 5 or it 
 occurs through the force of natural causes,, such as subse- 
 quent insanity, or where the disseisee dies, and his title 
 descends to an infant heir. 26 It is usual, however, in the 
 
 21 Poignard v. Smith, 8 Pick. 272; Dadmun v. Lamson, 9 Allen 85. 
 
 22 See Schiefferstein v. Allison, 24 111. App. 294; s. c. 123 111. 623, 
 15 N. E. Rep. 275; Houston v. Workman, 28 111. App. 626. See Tins- 
 ley v. Lombard (Or. 1904), 78 Pac. Rep. 895. 
 
 23 " The statute of limitations does not run against an infant." Gib- 
 son v. Gibson (Ky. 1904), 77 S. W. Rep. 928. 
 
 2* Mercer's Lessee v. Selden, 1 How. 37 ; Cotterell v. Dutton, 4 Taunt. 
 820; Edso v. Munsell, 10 Allen 557; Miller v. Texas, etc., R. R. Co., 132 
 U. S. 662. 
 
 SB Thorpe v. Raymond, 16 How. 247; Carrier v. Gale, 3 Allen 328; 
 Hall v. Ditto (Ky.), 12 S. W. Rep. 941. 
 
 2eAllis V. Moore, 2 Allen 306; Fleming v. Griswold, 3 Hill 85; 
 
 719
 
 507 STATUTE OP LIMITATIONS. [PAKT HI. 
 
 case of descent to infant heirs, to provide that the time of 
 limitation shall be prolonged, so that the actions will not be 
 barred until the lapse of a stated period after arrival at 
 majority. It is also the general rule, in the absence of an 
 express statutory provision, that the Statute of Limitations 
 will not run against the State or United States. Nullum 
 tempus occurrit regi." 
 
 506. How and when statute operates. The statute not 
 only protects the title acquired by adverse possession, when it 
 is assailed by plaintiff in an action of ejectment, but it may 
 also be relied upon to vindicate his right to possession, where 
 he has been ousted and he is forced to his action to recover 
 possession. The statute not only bars the action, but it takes 
 away the disseisee's former right to regain seisin by an entry. 
 Any entry, therefore, which he may make after the lapse of 
 the period of limitation, is a disseisin and does not re-invest 
 him with the lawful seisin. The statute, therefore, may be 
 set up by a plaintiff in ejectment in support of his title, even 
 against one who has a clear paper title. 28 And it has also been 
 held, where ejectment is brought by disseisee, and the disseisor 
 with possession for the statutory period suffers judgment by 
 default, he may set up the statute in a subsequent action of 
 ejectment, in which he is plaintiff. 29 
 
 507. Effect of the statnte. All the earlier authorities 
 held that the only effect of the Statute of Limitations was to 
 bar the remedy, and that it did not affect the substantive 
 
 Becker t. Van Valkenburg, 29 Barb. 324; Lincoln v. Purcell, 2 Head 
 143; Burdette v. May, 100 Mo. 13, 12 S. W. Rep. 1056. 
 
 zTLindsey v. Miller, 2 Pet. 660; Burgess v. Gray, 16 How. 48; Oak- 
 smith v. Johnston, 92 U. S. 343 ; Gardiner v. Miller, 47 Cal. 570. " No 
 title by adverse possession can be acquired against the State or United 
 States, nor is land the subject of adverse possession where the title is 
 in the State." Topping v. Cohn (Neb. 1904), 99 N. W. Rep. 372. 
 
 28Ang. on Lim., Sees. 380, 381; Hughes v. Graves, 39 Vt. 365; 
 Phillips r. Kent, 23 N. J. L. 155 ; Parker v. Metzger, 12 Oreg. 407. 
 
 2 Jackson v. Diffendorff, 3 Johns. 269. 
 720
 
 CH. XXI.] STATUTE OF LIMITATIONS. 507 
 
 right, whether the action was to recover real property or was 
 only a personal chose in action. 30 And this would appear to 
 be the reasonable construction of the statutes. They in ex- 
 press terms bar the actions. But of late years some of the 
 courts have gone further and held that the statute affected 
 also the right or title of the disseisee. 31 Mr. Washburn says 
 that "the operation of the statute takes away the title of the 
 real owner, and transfers it, not in form, indeed, but in legal 
 effect to the adverse occupant. ' ' 32 The statute may have 
 the effect of destroying the title of the owner altogether and 
 for all purposes, but it cannot be said to transfer it to the 
 disseisor. His title is acquired by adverse possession, and it 
 is only made perfect by rendering the rightful owner power- 
 less to defeat it, either by entry or by ejectment. The only 
 real value of this distinction lies in the settlement of a ques- 
 tion arising under the subject of title by abandonment. 33 
 
 so Ang. on Lira., Sees. 1, 7; 3 Washburn on Real Prop. 146; Daven- 
 port v. Tyrrel, 1 W. Bl. 975; McElmoyne v. Cohen, 13 Pet. 312; Town- 
 send v. Jemison, 29 How. 497; Bulger v. Roche, 11 Pick. 36. 
 
 si School District V. Benson, 31 Me. 384. See Steel f. Johnson. 4 
 Allen 426; Blair v. Smith, 16 Mo. 273. See 3 Washburn on Real Prop. 
 163, 164; Bliss on Code Pleading, Sec. 356. 
 
 3a 3 Washburn on Real Prop. 164. The rule, as stated by Mr. Wash- 
 burn, is followed, in a late case, in Missouri. Franklin r. Cunningham 
 (1905), 86 S. W. Rep, 79. See, also, for rule in Oregon, Hamilton v. 
 Flournoy (1903), 74 Pac. Rep. 483. 
 
 ss See post, Sec. 517. 
 
 46' 721
 
 SECTION V. 
 
 ESTOPPEL. 
 
 SECTION 508. Definition. 
 
 509. Estoppels in pats. 
 
 510. Is fraud necessary to estoppel in pa**. 
 
 511. Estoppel in deed. 
 
 512. Estoppel in deed Continued. 
 
 513. Effect of estoppel upon the title. 
 
 514. Effect of estoppel Continued. 
 
 515. Estoppel binding upon whom. 
 
 508. Definition. A title by adverse possession may also 
 be perfected by estoppel. Estoppel is an admission or rep- 
 resentation which is held by law to be conclusive upon the 
 party making it, because its disproof would result in injury to 
 him who relied upon its truth. The subject has a general 
 reference to all branches of the law. In its reference to 
 titles to real property they may be divided into estoppels in 
 pais and estoppels by deed. 34 
 
 509. Estoppels in pais. An estoppel in pais is a repre- 
 sentation, either by act or by word, or even in some cases 
 by silence, made by one party to another for the purpose of 
 influencing the latter in reference to the title or boundary line 
 of the property about to be purchased by the latter. 35 One 
 
 3*3 Washburn on Real Prop. 70; 1 Prest. Abst. 421; Welland Canal 
 r. Hathaway, 8 Wend. 480; Hanrahan v. O'Reilly, 102 Mass. 204; Co. 
 Lit. 352 a. Conduct creating an estoppel may be without an intention 
 to deceive or mislead, if such as to induce a reasonable man to act on 
 it. Globe Nav. Co. v. Maryland Casualty Co. (Wash. 1905), 81 Pac. 
 Rep. 826. 
 
 35 Ham f. Ham, 14 Me. 351; Attorney-General v. Merrimack Co., 14 
 Gray 586; McWilliams v. Morgan, 61 111. 89; Veal v. Robinson, 76 Ga. 
 838; Coogler v. Rogers (Fla.), 7 So. Rep. 391; Moose v. Trimmier 
 722
 
 CH. XXI.] ESTOPPEL. 509 
 
 is estopped from asserting title to land, which he has per- 
 mitted to be sold in his presence to a bona fide purchaser with- 
 out disclosing his claim to the land. 86 The representation, in 
 order to constitute an estoppel, must refer to facts not equally 
 within the knowledge and reach of both parties. If the pur- 
 chaser, who relies upon the representation, had other con- 
 venient means of ascertaining the truth of the case, there will 
 be no estoppel. 37 The party seeking to establish the estoppel 
 must show that he actually relied upon the representation, and 
 was thereby deceived. 38 It is further required that the repre- 
 sentation must have been made with the intention to in- 
 fluence the conduct of the party misled, or it was so made that 
 the latter might reasonably" have been expected to rely upon 
 it. 39 
 
 (S. C.) 11 S. E. Rep. 548, 552; Jennings v. Harrison (S. C.), 11 S. E. 
 Rep. 695; Gruber v. Baker, 20 Nev. 453, 23 Pac. Rep. 858; Geary v. 
 Porter, 17 Oreg. 465. " Where one by his conduct induces another to act 
 on the supposition that certain conditions exist, he will not be heard 
 to deny their existence, where the other would be prejudiced by such 
 denial." Anthes v. Schroeder (Neb. 1905), 103 N. W. Rep. 1072. "The 
 substance of estoppel is the inducement of another to act to his preju- 
 dice." Steffens v. Nelson (Minn. 1905), 102 N. W. Rep. 871. " The doc- 
 trine of estoppel and laches, with reference to an action to recover 
 swamp lands patented by the State to a county, applies to the county 
 to the same extent as to individuals." Palmer v. Jones (Mo. 1904), 85 
 S. W. Rep. 1113. 
 
 3 Gray f. Crockett, 35 Kan. 686, 12 Pac. 129; Sumner v. Seaton 
 (N. J.), 19 Atl. Rep. 884; Bunting v. Gilmore (Ind.), 24 N. E. Rep. 
 583; Short v. Currier, 150 Mass. 372, 23 N. E. Rep. 106; Noble v. 111. 
 Cent. R. R. Co., Ill 111. 437; Bobb v. Bobb, 99 Mo. 578, 12 S. W. 
 Rep. 893. But see, Tilotson v. Mitchell, 111 111. 518; Knutson v. Vid- 
 ders (Iowa 1905), 102 N. W. Rep. 433. 
 
 STQdlin v. Grove, 41 N. H. 477; Mora v. Murphy, 83 Cal. 12, 83 Pac. 
 63 ; Stuart V. Lowry, 42 Minn. 473, 44 N. W. Rep. 532 ; Western N. . 
 etc., R. R. Co. v. Richards (Pa.), 19 Atl. Rep. 931. 
 
 ss Brown v. Bowen, 30 N. Y. 541; Malloney v. Heron, 49 N. Y. 111? 
 Hanrahan v. O'Reilly, 102 Mass. 201; Jones v. Merchants Nat. Bank, 
 55 Hun 290, 8 N. Y. S. 382. 
 
 3 Turner v. Coffin, 12 Allen 401; Andrews v. Lyon, 11 Allen 350; 
 Howard v. Hudson, 2 Ell. & B. 1 ; Ford v. Fellows, 34 Mo. App. 630; 
 Blanchard f. Evans, 5 N. Y. Super Ct. 543. " It is unnecessary to cre- 
 
 723
 
 510 ESTOPPEL. [PART in. 
 
 510. Is fraud necessary to estoppel in pais? It has been 
 a disputed question how far the element of fraud is necessary 
 to constitute a false representation a ground for raising 'an 
 estoppel. A large number of cases hold that, if there are 
 present a false representation, an intention to influence, and 
 a reliance upon that representation, an estoppel arises against 
 the party making the false representation, notwithstanding 
 he did so through an honest mistake as to the facts of the 
 case, provided the circumstances of the case impute to the 
 party making the misrepresentation a knowledge of the truth. 40 
 While it is maintained by other courts that the representation 
 must have been made by one who either knew it to be false, 
 or had no reasonable grounds for believing it to be true. 41 
 This dispute arises only where the representation concerns the 
 title to the land generally. When the representation refers 
 to the boundary line between two estates, the courts seem to 
 have generally agreed upon the following rule : Where a 
 true line was a matter of uncertainty and dispute, and it 
 could not, after a diligent search, be ascertained, if the parties 
 agree upon a line, which shall constitute the boundary line, 
 both will thereafter be estopped from denying that the line 
 agreed upon was the true line, although the dispute arose 
 
 ate an estoppel that the conduct of the parties should be characterized 
 by intent to deceive." Rogers v. Portland & B. St. Ry. (Me. 1905), 60 
 Atl. Rep. 713. " The doctrine of equitable estoppel should not be im- 
 plied, unless in any given case all the elements exist essential to create 
 such estoppel." Rogers v. Portland & B. St Ry. (Me. 1905), 60 Atl. 
 Rep. 713. "One cannot lose a vested title to land by oral admissions 
 that it is the property of another." Yock v. Mann (W. Va. 1905), 49 
 S. E. Rep. 1019. 
 
 *<>Bigelow v. Foss, 59 Me. 162; Maple t?. Kussart, 53 Pa. St. 352; 
 Morris Canal r. Lewis, 12 N. J. Eq. 332; Snodgrass v. Ricketts, 13 f Cal. 
 362; Ford f. Fellows, 34 Mo. App. 630. See Rogers v. Portland* Co. 
 (Me. 1905), 60 Atl. Rep. 713. 
 
 Davidson r. Young, 38 111. 152 ; Boggs v. Merced Co., 14 Cal. 367 ; 
 Glidden r. Struppler, 52 Pa. St. 405; Copeland v. Copeland, 28 Me. 
 539; Whitaker v. Williams, 20 Conn. 104; Hensaw v. Bissell, 18 Wall. 
 271. See Lewis v. Brown (Tex. 1905), 87 S. W. Rep. 704. 
 
 724
 
 CH. XXI.] ESTOPPEL. 510 
 
 from an honest mistake of one or both of the parties. 42 But 
 if the representation was made under an honest mistake of the 
 facts in a case, where there was no actual uncertainty as to the 
 true line, the party making the representation would not 
 thereafter be precluded from setting up the true line. 43 But 
 if the party making the representation as to boundary knew 
 it to be false and the other relied upon such representation, 
 an estoppel would arise. 44 These questions, however, involve 
 the discussion of a great many principles of equity, and upon 
 the application of which the courts are not altogether agreed. 
 The foregoing enunciation of the leading principles is as 
 much as can be attempted in an elementary treatise on real 
 property. It is hardly necessary to state that, in order that 
 an estoppel in pais may perfect a title by adverse possession, 
 the possession must have been acquired under an honest claim 
 of title. For an honest reliance upon the false representa- 
 tion in respect to the title is necessary to raise the estoppel. 
 In perfecting titles by adverse possession, estoppels are set up 
 by the defendant in defending the title so acquired and 
 perfected. But, if necessary, it may also be set up by the 
 
 *2 Adams v. Rockwell, 16 Wend. 285; Dibble V. Rogers, 13 Wend. 536; 
 Jackson v. Ogden, 7 Johns. 238; Orr V. Hadley, 36 N. H. 575; Knowles 
 r. Toothaker, 58 Me. 174; Russell V. Maloney, 39 Vt. 580; Sneed V. 
 Osborn, 25 Cal. 624; Reed v. Farr, 35 N. Y. 117. See Wendall . 
 Fisher (Mass. 1904), 72 N. E. Rep. 322; Le Comte v. Carson (W. Va. 
 1904), 49 S. E. Rep. 238. " Where there is doubt as to a boundary, an 
 oral agreement, carried into execution by actual possession, is valid, 
 without other consideration than the settlement of the disputed bound- 
 ary." Le Comte v. Carson (W. Va. 1904), 49 S. E. Rep. 238. 
 
 <3 Proprietors, etc., v. Prescott, 7 Allen 494 ; Vosburgh v. Teator, 32 
 N. Y. 561; Russell v. Maloney, 39 Vt. 580. See Burdick r. Heinley, 
 23 Iowa 515. 
 
 44 Davenport v. Tarpin, 43 Cal. 598 ; Lemmon v. Hartrook, 80 Mo. 
 13; Kirchner v. Miller, 39 N. J. Eq. 355; Haas v. Plantz, 56 Wis. 105; 
 Raynor v. Timerson, 51 Barb. 517; Evans v. Miller, 58 Miss. 120; 
 Pitcher V. Dove, 99 Ind. 175. To make valid an oral agreement to fix 
 a line between two contiguous tracts of land, there must be doubt as 
 to the true line, or the agreement is void. Le Comte v. Carson (W. Va. 
 1904), 49 S. E. Rep. 238. 
 
 725
 
 511 ESTOPPEL. [PART in. 
 
 plaintiff in exercising the rights of ownership incident to the 
 title. 
 
 511. Estoppel by deed. In its relation to the title of 
 lands an estoppel by deed arises, where there is in the deed 
 an express or implied representation that the grantor at the 
 time of his conveyance was possessed of the title which his 
 deed purports to convey. 45 If there is such a representation, 
 and it is false, whether he is committing a fraud or is acting 
 under an honest mistake, he is estopped from denying that he 
 has a title; and consequently, if he should afterwards acquire 
 the title, he could not by setting it up defeat his own grant. 46 
 And, as in the case of an estoppel in pais, the grantor is not 
 estopped, unless the grantee took the deed in reliance upon the 
 truth of the grantor's representations as to his title. 47 But a 
 grantor may disseise his grantee, and the title by adverse pos- 
 session, so acquired, may ripen into a good title, which the 
 grantor may assert. So also may he acquire a title subse- 
 quently in any other manner, and assert it against his grantee, 
 provided it does not negative the validity of the title which 
 he purported to convey. 48 The representation need not be 
 express; it may be implied. The common-law conveyance by 
 feoffment was itself an implied representation that the feoffor 
 
 Dickson v. Sledge (Miss. 1905), 38 So. Rep. 673; Coleman v. Cole- 
 man, 216 111. 261, 74 N. E. Rep. 701; New Orleans r. Riddell, 113 La. 
 1051, 37 So. Rep. 966. 
 
 46 Smith V. Moodus Water Co., 35 Conn. 400; Jackson v. Murray, 12 
 Johns. 201; French v. Spencer, 21 How. 228; Washabaugh v. Entricken, 
 34 Pa. St. 74; Ryan v. United States, 136 U. S. 68; Stranford v. Broad- 
 way Sav. & Loan Co., 122 Ind. 422; Coleman v. Bresnahan, 54 Hun 
 619, 8 N. Y. S. 158; Miller v. Texas, etc., R. R. Co., 132 U. S. 68; 
 Rogers v. Portland Co. (Me. 1905), 60 Atl. Rep. 713; Jones V. Jones, 
 213 111. 228, 72 N. E. Rep. 695. 
 
 47 Viele v. Van Steenburg, 31 Fed. Rep. 249; Rountree v. Lane (S. 
 C.), 10 S. E. Rep. 941; Mann v. City of Elgin, 24 111. App. 419; Mc- 
 Cann v. Oregon Ry. & Nav. Co., 13 Or. 455, 11 Pac. Rep. 236. 
 
 <8 Parker v. Proprietors, etc., 3 Mete. 102; Stearns v. Hendersass, 9 
 Cush. 502; Moore v. Littel, 41 N. Y. 97; Garabaldi v. Shattuck, 70 Cal. 
 511, 11 Pac. Rep. 778; Luove v. Wilson (La. 1905), 38 So. Rep. 522. 
 726
 
 CH. XXI.] ESTOPPEL. 512 
 
 had an absolute title to the estate, which was sufficient to 
 bind any subsequently acquired title in his hands. 49 But in 
 all other deeds, and particularly in deeds which take effect 
 under the Statute of Uses, no estoppel can arise, unless the 
 recitals or the covenants of the deed expressly or impliedly 
 represent that the grantor had a good title to the land which 
 he attempts to convey. No estoppel can arise merely from 
 the execution and delivery of such a deed, and the payment of 
 a valuable consideration. 50 
 
 512. Estoppel in deeds Continued. It seems, however, 
 in order that a recital may work an estoppel, it must refer 
 specially to some particular fact. General recitals do not 
 conclude the grantor from setting up an after-acquired title. 51 
 The covenants of warranty are held to raise an estoppel for 
 the purpose of avoiding circuity of action. An entry by the 
 grantor under his after-acquired title would be a breach of the 
 covenants, and instead of putting the grantee to his action on 
 the covenants, the law estops the grantor from asserting the 
 title in derogation of his own grant. 52 But it is not necessary 
 that the covenant be a general covenant of warranty. A spe- 
 cial warranty would ordinarily be sufficient. It will operate 
 as an estoppel to the extent of the liability thereby assumed 
 by the grantor. 53 In order that a covenant may work an 
 
 3 Washburn on Real Prop. 94. 
 
 003 Washburn on Real Prop. 116; White V. Patten, 24 Pick. 324; 
 Jackson V. Wright, 14 Johns. 193; Jackson v. Brinkerhoff, 3 Johns. 101; 
 Bruce v. Luke, 9 Kan. 291, 12 Am. Rep. 491; Brennan v. Eggeraan, 73 
 Mich. 658. 
 
 si Huntington v. Havens, 5 Johns. Ch. 23 ; Shelley v. Wright, Willes 
 fl; Co. Lit. 352 b; Morgan v. Larned, 10 Mete. 53; Carver v. Jackson, 
 4 Pet. 85; Hall v. Orvis, 35 Iowa 366; Yancey v. Radford (Va.), 10 
 S. E. Rep. 972; Pate v. French, 122 Ind. 10, 23 N. E. Rep. 673. 
 
 52 Somes v. Skinner, 3 Pick. 52; Oakes v. Marcey, 10 Pick. 195; 
 Jackson v. Waldron, 13 Wend. 189; Bogy v. Shoab, 13 Mo. 378; Gaff- 
 ney v. Peeler, 21 S. C. 55; Robinson v. Douthit, 64 Texas 101; Miller 
 v. Texas, etc., R. R. Co., 132 U. S. 662. 
 
 53 Trull v. Eastman, 3 Mete. 121; Blake v. Tucker, 12 Vt. 39; Kim- 
 ball v. Bhisdell, 5 N. H. 535; Brundred v. Walker, 12 N. J. Eq. 140; 
 
 727
 
 512 ESTOPPEL. [PART in. 
 
 estoppel it must be (contained in a deed which is good and 
 valid in law as well as in equity. A defective deed cannot 
 create an estoppel by covenant. 84 But a conveyance in con- 
 sideration of natural love and affection, is sufficient. 55 So will 
 no estoppel arise from a deed with covenant of warranty, 
 where the deed passes an interest, upon which the warranty 
 can operate, although the interest so passing is not commen- 
 surate with the intention of the parties. 50 And if the deed 
 conveys "all the right, title and interest" of the grantor, 
 instead of an absolute estate, the grantor will not be estopped 
 from setting up an after-acquired title, since he did not un- 
 dertake to convey any greater interest or better title than he 
 then had. 57 So, also, a quit-claim deed cannot raise an es- 
 toppel as to after-acquired titles. 58 And where the deed is 
 executed by two or more owners of an estate in common, the 
 estoppel, whether it is based upon a recital or a covenant of 
 warranty, or both, only operates upon the share of each 
 
 Coleman v. Coleman, 216 111. 261, 74 N. E. Rep. 701; Cunningham v. 
 Cunningham (Iowa 1904), 101 N. W. Rep. 470; New Orleans r. Riddell, 
 113 La. 1051, 37 So. Rep. 966. Where one conveys land with general 
 warranty, and his title is defective, and he afterwards acquires a good 
 title, it inures to the benefit of his grantee. Yock V. Mann (W. Ya. 
 1905), 49 S. E. Rep. 1019. 
 
 5 4 Blanchard v. Brooks, 12 Pick. 47; Patterson v. Pease, 5 Ohio 190 j 
 Kercheval r. Triplett, 1 A. K. Marsh. 493; Dougal v. Fryer, 3 Mo. 29; 
 Raymond v. Holden, 2 Cush. 264. Where proceedings to sell land for 
 taxes were void, and not merely voidable, a landowner was not estopped 
 to object thereto by the fact that he personally appeared and bid on 
 the land at the sale. Young v. Droz (Wash. 1905), 80 Pac. Rep. 810. 
 
 55 Robinson V. Douthit, 64 Texas 101. 
 
 66 Jackson v. Hoffman, 9 Cow. 271; Lewis v. Baird, 3 McLean 56; 2 
 Prest. Abst. 216; 4 Kent's Com. 98. 
 
 67 Mills v. Ewing, 6 Cush. 34; Doane V. Wilcutt, 5 Gray 328; Ray- 
 mond V. Raymond, 10 Cush. 134; Harrison v. Gray, 49 Me. 538; White 
 V. Brocaw, 14 Ohio St. 344; Torrence V. Shredd, 112 111. 466. 
 
 58 Fay v. Wood (Mich.), 32 N. W. Rep. 614; Frost v. Meth., etc., 
 Missionary Soc., 56 Mich. 62; People V. Miller (Mich.), 44 N. W. Rep. 
 172. But see Clark v. Daniels (Mich.), 43 N. W. Rep. 854. 
 
 728
 
 CH. XXI.] ESTOPPEL. 514 
 
 grantor, and does not prevent one from setting up a title to 
 the shares of the other, which he acquires subsequently. 59 
 
 513. Effect of estoppel upon the title. Where the estop- 
 pel arises in pais there seems to be no doubt that it has only 
 the effect of locking up the adverse title in the person against 
 whom the estoppel operates, instead of creating a title in, or 
 transferring the true title to, the person for whose benefit it 
 is brought into operation. It only precludes the party from 
 setting up his true title against him, who has been influenced 
 by false representation. If one who has been deceived has 
 actually received no title in any other way, the doctrine of 
 estoppel will only help him in an action brought to recover 
 the title to which he is entitled. If he has a title by adverse 
 possession under a claim of title, the estoppel will perfect it 
 by preventing his ouster under the paramount title by those 
 who are affected by the estoppel. But a difficult question 
 arises in this connection, where it is an estoppel by deed. 
 Two different theories prevail, and are supported by eminent 
 authority. According to one theory, the estoppel by deed 
 simply precludes the grantor from setting up an after-ac- 
 quired title in derogation of his own grant. The opposing 
 theory is to the effect that the estoppel actually passes the 
 after-acquired title to the grantee immediately upon its ac- 
 quisition by the grantor. To use the expression commonly 
 found in these authorities, it "inures" to the grantee. This 
 latter theory is directly opposed to the general doctrine of 
 estoppel, and is believed to be unfounded. 
 
 514. Effect of estoppel Continued. A large array of 
 authorities is cited by Mr. Rawle and Mr. Washburn, 60 but as 
 
 5 Trull v. Eastman, 3 Mete. 121 ; Wright v. Shaw, 5 Cush. 56. See 
 Coleman v.. Coleman, 216 111. 261, 74 N. E. Rep. 701. But as to 
 estoppel of wife by deed of husband, see, Cunningham v. Cunningham 
 (Iowa 1905) 101 N. W. Rep. 470; Bland v. Windsor et al. (Mo. 1905), 
 86 8. W. Rep. 162. 
 
 o Rawle, Cov. of Tit. (4 ed.) 404; 3 Washburn on Real Prop. 190. 
 
 729
 
 514 ESTOPPEL. [PART in. 
 
 Mr. Bigelow very correctly states, in his article, 61 and again 
 in his work on Estoppel, 02 these authorities refer to the sub- 
 ject only in general terms, and cannot be treated as final 
 and conclusive. In fact, in some of the cases, the position is 
 assumed by the reporter in the syllabus, without having any- 
 thing in the decision of the court, or the facts of the case, to 
 warrant it. 63 According to Mr. Bigelow, the error has oc- 
 curred through a failure to distinguish between the effect of 
 the common law conveyances of feoffment, fine, recovery and 
 lease, and that of the deeds which take effect under the Statute 
 of Uses. He admits that by these common-law conveyances 
 the after-acquired interest passed by estoppel to the grantee, 
 while he holds that a different conclusion must be reached in 
 respect to deeds of bargain and sale, covenants to stand seised, 
 and lease and release. In the leading case of Somes v. Skin- 
 ner, 64 all the authorities relied upon, concerned estoppels 
 arising in these common-law conveyances. But it seems to 
 the writer -that the entire doctrine is fallacious, whether it 
 refers to common-law conveyances, except a lease for a term 
 of years, or to deeds under the Statute of Uses, and it arises 
 from the false idea of the courts that the doctrine of inure- 
 ment was necessary, in order to give the grantee sufficient 
 title to defend against trespassers. 65 At common law no con- 
 
 The following are the leading cases cited by Mr. Washburn: Jackson v. 
 Stevens, 13 Johns. 316; Brown V. McCormick, 6 Watts 60; Jackson r. 
 Matsdorf, 11 Johns. 91; Terrett v. Taylor, 9 Cranch 43; Comstock v. 
 Smith, 13 Pick. 116; White v. Patten, 24 Pick. 324; Van Rensselaer V. 
 Kearney, 11 How. 322; Goodson V. Beacham, 24 Ga. 150; Kimball V. 
 Schoff, 40 N. H. 190; Burton v. Reeds, 20 Ind. 93; McCusker v. Mc- 
 vey, 9 R. I. 529; Plympton v. Converse, 42 Vt. 712; Doe v. Dowdall, 3 
 Houst. 369; Parker V. Marks, 82 Ala. 548; Kaiser v. Earhart, 64 
 Miss. 492; Jacob v. Yale (La.), 1 So. Rep. 822; Cornish v. Frees, 74 
 Wis. 490. 
 
 ei 9 Am. Law Rev. 252. 
 
 fczBig. on Estop. 285-339. 
 
 63 See particularly Jackson v. Stevens, 13 Johns. 316; Jackson v. 
 Matsdorf, 11 Johns. 91; Terrett v. Taylor, 9 Cranch 43. 
 
 o*3 Pick. 52. 
 
 sBlanchard v. Ellis, 1 Gray 195; Bean v. Welsh, 17 Ala. 770. A 
 730
 
 CH. XXI.] ESTOPPEL. 514 
 
 veyance could be made by one of lands which were in the ad- 
 verse possession of another. 66 Where, therefore, there was a 
 conveyance made of the lands particularly if it was a com- 
 mon-law conveyance the grantee or feoffee acquired at least 
 a title by adverse possession, if his grantor was not lawfully 
 seised. This title by adverse possession was good against all 
 the world except the true owner. 67 And if his grantor ac- 
 quired the paramount title he was estopped from enforcing it 
 against his grantee. The distinction between the two theories 
 only acquired importance when the common-law rule, requir- 
 ing the grantor to be seised, was abolished and the grantor 
 was permitted to make a legal conveyance while he was dis- 
 seised. The question then for the first time arose, whether 
 the title, subsequently acquired by one who at the time of 
 his grant had neither title nor possession, so far passed by 
 estoppel to the grantee as to permit him to maintain an ac- 
 tion of ejectment against one, who holds in adverse posses- 
 sion to both him and his grantee. That a man acquires noth- 
 ing by a deed from one, who has neither title nor possession, 
 needs no authority. 68 The after-acquired title must inure 
 or pass to the grantee, instead of being shut up in the hands 
 of the grantor, in order that the grantee may maintain eject- 
 ment against a disseisor. 60 The better opinion is that no title 
 passes by estoppel to the grantee. If he has acquired none 
 
 common law lease for a term of years is an executory contract, until 
 the lessee has entered into possession. See ante, Sec 131. The lessee 
 may therefore sue for possession at any time during his term, and may 
 take advantage of any after-acquired title of his lessor. But the grant 
 of a freehold operates eo instanti, and conveys the title upon the de- 
 livery of the deed, or not at all. 
 
 See post, Sec. 559. 
 
 7 See ante, Sees. 490, 491. 
 
 e Tyl. on Adv. Pos. 542. 
 
 See Jackson v. Bradford, 4 Wend. 619; 3 Prest. Abst. 25; Wyvel'a 
 Case, Hob. 44; Wright v. Wright, 1 Ves. Sr. 391; Somes v. Skinner, 3 
 Pick. 52, 80; Way v. Arnold, 18 Ga. 350; Jacocks v. Gilliam, 3 Murph. 
 47; . c. 4 Hawks 310, to the effect that such a grantee could not main- 
 tain an action of ejectment in his own name against the disseisor. 
 
 731
 
 515 ESTOPPEL. [PART in. 
 
 by force of his grant, i. e., if he has not acquired a title by ad- 
 verse possession, he does not gain one by estoppel. 70 In some 
 of the States, to supply the deficiency, statutes have been en- 
 acted, which cause after-acquired titles to pass instanter from 
 the grantor to the grantee. 71 In the absence of the statute the 
 title remains in the grantor, but he is precluded from setting 
 it up. Neither is the grantee obliged to take advantage of 
 the title subsequently acquired. He may bring his action for 
 the breach of the covenants if he has been evicted. 72 It would 
 seem that if the title actually inured to the grantee, his dis- 
 possession by his grantor, under the claim of a paramount title, 
 could not be treated as a breach of the covenant of warranty. 
 It would be a simple act of trespass. And in cases where by 
 estoppel one acquires a right to the title of lands subsequently 
 acquired, a court of equity will always grant a decree for fur- 
 ther assurance, so as to protect the grantee's title against the 
 acquisition of the paramount title by an innocent purchaser 
 without notice of the estoppel. 
 
 515. Estoppel binding upon whom. An estoppel will not 
 only bind the party who makes the false representation, but 
 also all those who are in privity with him, whether the privity 
 is of estate, of contract, or by blood. A stranger can neither 
 take advantage of an estoppel, nor be bound by it. 73 If, how- 
 
 70 Gibson v. Chouteau, 39 Mo. 566 ; Van Rensselaer v . Kearney, 1 1 
 How. 322; Jackson v. Bradford, 4 Wend. 619; Wright v. Wright, 1 
 Ves. Sr. 391. See Reeder v. Craig, 3 McCord 411. But see Cooper V. 
 Burns (Neb. 1904), 133 Fed. Rep. 398; New Orleans v. Riddell, 113 
 La. 1051, 37 So. Rep. 966. 
 
 71 Bogy v. Shoab, 13 Mo. 379; Clark v. Baker, 14 Cal. 612; Kline v. 
 Ragland, 47 Ark. 111. 
 
 72 Blanchard t\ Ellis, 1 Gray 195 ; Tucker V. Clarke, 2 Sandf . Ch. 96 ; 
 Burton v. Reed, 20 Ind. 87 ; Woods v. North, 6 Humph. 309 ; Noonan v. 
 Isley, 21 Wis. 139. Contra, King V. Gelson, 32 111. 348; Reese v. Smith, 
 12 Mo. 344. 
 
 73 Wive Vs Case, Hob. 45; Wright v. Wright, 1 Ves. Sr. 391; Somes r. 
 Skinner, 3 Pick. 52; Coogler v. Rogers (Fla.), 7 So. Rep. 391; Glover 
 f. Thomas, 75 Texas 506, 12 S. W. Rep. 684; Gruber V. Baker, 20 Nev. 
 
 732
 
 CH. XXI.] ESTOPPEL. 515 
 
 ever, the grantor acquires and holds possession adversely to 
 the grantee, the subsequently acquired title will accrue to the 
 grantor and cannot be claimed by the grantee on the theory 
 of estoppel. 74 Nor can any one enforce an estoppel, except 
 the person to whom the representation was made, or who was 
 intended to be influenced, and those who stand in privity with 
 him, and claim under him. But where the privies of the 
 grantor, who is estopped, are subsequent purchasers for value, 
 they are only estopped where they have a notice of the es- 
 toppel, whether that estoppel arises in pals or by deed. 75 If 
 the subsequent purchaser of an after-acquired title has re- 
 ceived no notice of the prior deed, the estate in his hands is 
 freed from the estoppel. 76 But it is a doubtful question 
 whether the registration of the prior deed, before the title had 
 been acquired by the grantor and recorded, would properly be 
 considered constructive notice of the estoppel. It is certainly 
 in violation of the spirit of the registration laws which only re- 
 quire the investigator to search the records for any incum- 
 brance or conveyance which occurs between the time when the 
 grantor acquired the title, and the time when he offers the 
 title for conveyance. 77 But in order that one may be bound 
 
 453, 23 Pac. Rep. 858; Grand Tower, etc., Co. v. Gill, 111 111. 541; Con- 
 solidated, etc., Min. Co. v. Lebanon Min. Co., 9 Colo. 343, 12 Pac. Eep. 
 212; Staffordville Gravel Co. V. Newell (N. J.), 19 Atl. Rep. 209; 
 Smythe v. Henry, 41 Fed. Rep. 705; Cate v. French, 122 Ind. 10, 23 N. 
 E. Rep. 673; New Orleans v. Riddell, 113 La. 1051, 37 So. Rep. 966; 
 Louve v. Wilson (La. 1905), 38 So. Rep. 522; McCormick v. Herron 
 (Iowa 1905), 103 N. VV. Rep. 988; Boshore V. Parker (Cal. 1905), 80 
 Pac. Rep. 707. " One whose only claim to land is as heir of one 
 estopped to claim it has no right to it." Spears v. Conley (Ky. 1905), 
 87 S. W. Rep. 1072, 27 Ky. Law Rep. 1169. 
 
 T4Garbaldi v. Shattuck, 70 Cal. 511, 11 Pac. Rep. 778. 
 
 TO Carpenter v. Buller, 8 Mees. & W. 212; 3 Washburn on Real 
 Prop. 91. 
 
 76 Duchess of Kingston's Case, 2 Smith's Ld. Cas. 720; Shaw-v. 
 Beebe, 35 Vt. 204 ; Thistie v. Buford, 50 Mo. 278 ; Rawle Cov. Tit. 427. 
 
 "Calder v. Chapman, 2 P. F. Smith 359; McCusker v. McEvey, 10 
 R. I. 606; dissenting opinion of Judge Potter; Great Falls Co. V. 
 Worcester, 15 N. H. 452; Bright v. Buckman, 39 Fed. Rep. 243. But 
 
 733
 
 515 ESTOPPEL. [PART m. 
 
 by an estoppel, he must have the capacity to make a valid deed. 
 Infants and married women cannot be bound by estoppel. 78 
 
 see Wilson v. Smith, 52 Hun 171; Pike v. Calvin, 29 Me. 183; Wark 
 v. Willard, 13 N. H. 389; White v. Patten, 24 Pick. 324; Tefft v. Mun- 
 son, 57 N. Y. 97; Doyle v. Peerless Pet. Co., 44 Barb. 239; Farmers 
 L. & T. Co. v. Maltby, 8 Paige 361. But see Wilson v. Smith, 52 Hun 
 171. 
 
 TS Raymond r. Holden, 2 Cush. 264; Concord Bk. v. Bellis, 10 Cush. 
 276; Todd v. Kerr, 42 Barb. 317; Lackman t;. Wood, 25 Cal. 153; 
 Williams v. Baker, 71 Pa. St. 482; Snoddy v. Leavitt, 105 Ind. 357; 
 Hall v. Ditto (Ky.), 12 S. W. Rep. 941; Kirkham v. Wheeler Co. 
 (Wash. 1905), 81 Pac. Rep. 869; McPeck's Heirs v. Graham's Heirs 
 (W. Va. 1904), 49 S. E. Rep. 125; Ft. Wayne Trust Co. v. Sihler, 72 
 N. E. Rep. 494. By statute, in Indiana, a married woman is bound 
 by an estoppel in pots, like any other person. Burns, Am. St. 1901, 
 Sec. 6962. 
 734
 
 SECTION VI. 
 
 ABANDONMENT. 
 
 BECTION 516. Effect of abandonment generally. 
 
 517. Abandonment of title by adverse possession. 
 
 518. Surrender of deed. 
 
 516. Effect of abandonment generally. It has been sup- 
 posed, that a title to real property may be lost by abandon- 
 ment by the owner, and such would seem to have been the 
 opinion of the United States Circuit Court of Ohio. T9 Ease- 
 ments and other incorporeal hereditaments may be lost by 
 abandonment, as has been explained. 80 So also may all equit- 
 able and executory rights to or in the title. 81 But 
 wherever abandonment can take effect, it simply destroys the 
 title, and does not vest it in another. A bargain to give up an 
 equitable claim may work an abandonment, but the bargainee 
 acquires no title by the bargain. 82 But no legal title of a cor- 
 poreal hereditament may be lost or destroyed by any act of 
 abandonment, with a possible exception to be mentioned in 
 the next section. A legal title, properly vested, can only be di- 
 vested by abandonment, when the circumstances of the case 
 are sufficient to raise an estoppel, or where the possession is 
 acquired by one in consequence of the abandonment, and held 
 by him under claim of title for the period of limitation. 83 
 
 ' Holmes v. Railroad, 8 Am. Law Reg. 716. 
 
 o See ante, Sec. 435. See Trewberger v. Owens, 80 N. Y. S. 694. 
 
 si Picket v. Dowdall, 2 Wash. 197; Dikes v. Miller, 24 Texas 424. 
 
 82 Barker v. Salmon, 12 Mete. 32; Sumner v, Stevens, 6 Mete. 337; 
 Booker v. Stivender, 13 Rich. Eq. 85; Kirk v. King, 3 Pa. St. 441. 
 
 88 " The doctrine of abandonment is only applicable where the title 
 affected is inchoate or imperfect. Where a title has passed by patent 
 from the commonwealth, it is never reinvested by abandonment." 
 Kreamer v. Voneida (Pa. Super. Ct. 1904), 24 Pa. Super Ct. 347. 
 
 735
 
 517 ABANDONMENT. [PART III. 
 
 The title, although not lost by abandonment, would be barred 
 by estoppel or by the Statute of Limitations. 84 The voluntary 
 abandonment would not prevent the possession of another 
 from becoming adverse to the real owner, though the aban- 
 donment was expressly made for his benefit and to him. But 
 where the abandonment is not accompanied by the circum- 
 stances of estoppel or limitation, no matter how formal the 
 abandonment was, if it fall short of a legal deed of conveyance, 
 it has no effect whatsoever upon the legal title. The owner 
 may afterwards re-enter and eject any one who may have en- 
 tered into possession in reliance upon the abandonment. 
 
 517. Abandonment of title by adverse possession. There 
 can be no doubt that, as long as the title by adverse possession 
 is not made absolute by the operation of the Statute of Limita- 
 tions, it may be lost or destroyed by abandonment. It is an 
 invariable requirement that the possession must be continued 
 and uninterrupted, in order that the title of the real owner 
 may be barred by the statute. 85 But where the statutory 
 period has elapsed, and the title of the true owner is barred," it 
 becomes a question of considerable doubt, whether a subse- 
 quent abandonment would destroy the title by adverse pos- 
 session which has then become perfected by the opera- 
 tion of the statute. The Supreme Courts of Georgia and 
 Massachusetts have held that such an abandonment would 
 be taken as conclusive proof of the fact that the possession had 
 not been adverse, and would remove the bar of the statute. 86 
 A contrary opinion has been reached by the supreme court of 
 Maine. 87 The solution of the question depends upon the 
 
 * Jackson v. Bowen, 1 Caines 358; Adams V. Rockwell, 16 Wend. 
 307; Tolman V. Sparhawk, 5 Mete. 476; Barker V. Salmon, 2 Mete. 32; 
 Simmer v. Stevens, 6 Mete. 327; Gregg V. Blackmore, 10 Watts 192; 
 Garabaldi v. Shattuck, 70 Cal. 511, 11 Pac. Rep. 778. 
 
 ss See ante, Sec. 504. " Where an adverse occupant of land attorns 
 to the true owner, the disseisin of the latter is thereby interrupted." 
 Illinois Steel Co. V. Budzisz (Wis. 1902), 90 N. W. Rep. 1019. 
 
 seVickery V. Benson, 26 Ga. 589; Church v. Burghart, 8 Pick. 327. 
 
 87 School District v. Benson, 31 Me. 381. 
 736
 
 CH. XXI.] ABANDONMENT. 518 
 
 proper theory in regard to the effect of the Statute of Limita- 
 tions. If the statute simply takes away the rightful owner's 
 remedies for the recovery of seisin and possession, and leaves 
 the barren right or title still subsisting in him, then if he re- 
 covers the seisin by the consent of the disseisor, having then 
 both the seisin and the lawful title, it would seem that the title 
 by adverse possession and limitation would be destroyed by 
 the abandonment. But if the statute goes farther, and either 
 transfers the lawful title of the real owner or destroys it com- 
 pletely, then the abandonment would have no more effect in 
 this ease than it would upon any other title. The possession 
 acquired by the rightful owner in such a case would only give 
 him a title by adverse possession, which can only be made abso- 
 lute by estoppel or by limitation. But in any case a tempo- 
 rary recovery of possession by the original owner after the 
 running of the Statute of Limitations will not affect the dis- 
 seisor 's title, where there has been no voluntary surrender to 
 the original owner. 88 
 
 518. Surrender of deed. It has, however, been held in a 
 number of cases that if a deed is delivered up by the grantee, 
 and destroyed, the title revests in the grantor, if the deed has 
 not been recorded. And the ground upon which the courts 
 rest this decision is that, having voluntarily destroyed this pri- 
 mary evidence of title, the grantee will not be permitted to in- 
 troduce parol evidence to establish the contents of the deed. 89 
 But the mere cancellation and return of the deed will not be 
 sufficient to revest the title in the grantor. 90 An effective 
 
 88 Falson v. Simshauser, 130 111. 649, 22 N. E. Rep. 835. 
 
 8 Commonwealth v. Dudley, 10 Mass. 403; Holbrook v. Tirrell, 9 
 Pick. 105; Lawrence v. Stratton, 6 Cush. 163; Howe v. Wilder, 11 Gray 
 267; Patterson v. Yeaton, 47 Me. 314; Parker v. Kane, 22 How. 1; 
 Dodge v. Dodge, 33 N. H. 487 ; Sawyer V. Peters, 50 N. H. 143 ; Howard 
 r. Huffman, 3 Head 564; Blake v. Fash, 44 111. 305; Baker V. Kane, 4 
 Wis. 12. See Illinois Steel Co. v. Budzisz, 90 N. W. Rep. 1019; Knight 
 r. Denmon, 90 N. W. Rep. 863 ; Anderson v. Carter, 69 S. W. Rep. 78. 
 
 oo Lawrence 0. Stratton, 6. Cush. 163; Wilson v. Hill, 13 N. J. Eq. 
 ' 143; Holmes v. Trout, 7 Pet. 171; Hall v. McDuff, 24 Me. 312; Fonda v. 
 
 47 737
 
 518 ABANDONMENT. [PART III. 
 
 abandonment would only result therefrom where the circum- 
 stances give rise to an estoppel, as where an innocent purchaser 
 is induced to accept a deed from the grantor, 91 or where all the 
 muniments of title have been voluntarily destroyed and the 
 grantee has to resort to parol evidence to prove his title. A 
 recorded deed cannot, therefore, be surrendered in this way. 
 A surrender can only be made to the grantor, and nothing 
 short of cancellation or destruction of the deed would have the 
 effect of passing the title back to him. 92 It must, however, 
 be understood that the surrender of the deed and its destruc- 
 tion can only have the effect of passing back the title to the 
 grantor, when the grantee is prohibited by the law from prov- 
 ing the contents of the deed by parol evidence. And whenever 
 the law of evidence is changed, so that parol evidence or any 
 other secondary evidence is admissable to prove the contents of 
 a deed which has been voluntarily surrendered by the grantee, 
 it will be found that no such surrender will revest the title in 
 the grantor, and that the grantee may nevertheless assert the 
 title to the land. And it must be remembered in any case that 
 the voluntary surrender will only have the effect of destroying 
 the title, so far as the grantee and his privies are concerned. 
 His wife's dower will not be affected in any manner by her 
 husband's surrender of the deed to himself. For the purpose 
 of asserting her claim of dower on the death of her husband, 
 parol evidence is admissible to prove the contents of the sur- 
 rendered deed. 93 But if the deed was not recorded, the dower 
 right could not be enforced against subsequent purchasers 
 without notice. 94 
 
 Sage, 46 Barb. 122; Fawcett v. Kinney, 33 Ala. 264; Howard V. Huff- 
 man, 3 Head 562; Kearsing v. Kilian, 18 Cal. 491. 
 
 il Commonwealth v. Dudley, 10 Mass. 403; Holbrook v. Tirrell, 9 
 Pick. 105; Trull V. Skinner, 17 Pick. 213; Patterson V. Yeaton, 47 Me. 
 314. 
 
 2 Howe V. Wilder, 11 Gray 267; Bank V. Eastman, 44 N. H. 778; 
 Blaney V. Hanks, 14 Iowa 400. 
 
 3 Johnson V. Miller, 40 Ind. 376, 17 Am. Rep. 699. 
 
 9* Wheeler v. Smith, 62 Mich. 373. For nature and effect of abandon- 
 ment of mineral, as a part of the corpus of the land and other mining 
 rights, see White, Mines & Min. Rem., Sees. 419 to 428, and eases cited. 
 738
 
 CHAPTER XXII. 
 
 TITLE BY GRANT. 
 
 SECTION I. Title by public grant. 
 
 II. Title by involuntary alienation. 
 III. Title by private grant. 
 
 SECTION I. 
 
 TITLE BY PUBLIC GRANT. 
 
 SECTION 519. Public lands. 
 
 520. Forms of public grant. 
 
 521. The relative value of the patent and certificate of entry. 
 
 522. Pre-emption. 
 
 519. Public lands. As has been explained in a preced- 
 ing section, all lands not held as the private property of indi- 
 viduals are vested in the State or United States. In the origi- 
 nal thirteen States all such lands belonged to the State, while 
 in all the others which were subsequently admitted into the 
 Union, except Texas, the public lands, except those given by 
 compromise to certain States, are the property of the United 
 States. 1 These lands of the general government have been by 
 official survey divided into townships and sections, and the 
 latter again sub-divided into fractions of a section, halves, 
 quarters and eighths. And in making a grant or conveyance 
 of these lands, reference is made to the township, section, and 
 fraction of a section, as a sufficient description of the tract 
 
 i 3 Washburn on Real Prop. 182-184; Terrett v. Taylor, 9 Cranch 50; 
 Worcester v. Georgia, 6 Pet. 543; Johnson v. Mclntosh, 8 Wheat. 543. 
 For construction of Texas Con. as to disposal of its public lands, see 
 Lane v. Huff on (Tex. 1904), 82 8. W. Rep. 1070. 
 
 739
 
 519 TITLE BY PUBLIC GRANT. [PART III. 
 
 conveyed. 2 The conveyance, by which the title to public lands 
 is transferred by the government to private individuals, is 
 called a public grant. Although particular reference is made 
 in this connection to the public lands held by the general gov- 
 ernment, the general principles here explained are equally ap- 
 plicable to lands belonging to the State governments. In 
 respect to the public lands of the United States, it must be 
 understood that although the law of the State in which the 
 land lies governs the rights of property in it, when it is the 
 property of a private individual, 3 until a grant of such land 
 has been made by the government, and even in construction of 
 the validity of the grant, the law of the United States is para- 
 mount. Until conveyance by the government the lands are 
 not subjected to State control. 4 Another rule of construction 
 may be mentioned here which has a general application to the 
 subject under consideration. It is, that in questions of prop- 
 erty rights arising between the State and individual the con- 
 struction is always most favorable to the State, whereas a 
 grant from one individual to another is construed most favor- 
 ably to the grantee. 5 But it seems that where the grant by 
 
 2 3 Washburn on Real Prop. 185 ; Walk. Am. Laws 42, 43. For con- 
 struction of grant of section of Government land, see Story r. Wolver- 
 ton (Mont. 1904), 78 Pac. Rep. 589. See, also, Hill v. McCord, 117 
 Wis. 306, 94 N. W. Rep. 65, 195 U. S. 395. 
 
 s United States v. Crosby, 7 Cranch 115; Kerr v. Moon, 9 Wheat. 565; 
 Darby v. Mayer, 10 Wheat. 465; Cutler v. Davenport, 1 Pick. 81; Callo- 
 way v. Doe, 1 Blackf. 372; Nims v. Palmer, 6 Cal. 8. 
 
 * Irvine V. Marshall, 20 How. 558; Bagnell v. Broderick, 13 Pet. 436; 
 Wilcox v. Jackson, 13 Pet. 516; Cannon v. White, 16 La. An. 89. In 
 California it has been held that the United States hold the public 
 lands in that State on the same terms and with the same incidents of 
 ownership as any other private proprietor, except as to taxation; and 
 that they can only exercise their rights in the mines in subordination 
 to the general laws on that subject of California. Boggs v. Merced Co., 
 14 Cal. 375. See Lorenz v. Baker (Ala. 1904), 37 So. Rep. 637. 
 
 s Dubuque R. R. v. Litchfield, 23 How. 88 ; Townsend v. Brown, 24 
 N. J. L. 80; Green's Estate, 4 Md. Ch. 349; Hagan v. Campbell, 8 Port, 
 9. " A grant of public land must be construed in favor of the grantor." 
 Story v. Woolverton (Mont. 1904), 78 Pac. Rep. 589. 
 740
 
 CH. XXII.] TITLE BY PUBLIC GRANT. 520 
 
 the State is for a valuable consideration this rule of construc- 
 tion does not apply, unless the ambiguity, arising on the face 
 of the grant is absolutely inexplicable. 6 Nevertheless, if the 
 State grants an estate upon condition, the breach of the condi- 
 tion will at once divest the title without the necessity of an 
 entry. 7 The State is not subject to estoppel under a covenant 
 of warranty ; it is estopped only by the description contained 
 in a valid grant. 8 
 
 520. Forms of public grant. The grant is not required 
 to assume any particular form. It may be made by special act 
 of Congress, or by deed made in pursuance of some general 
 act. But the public lands of the United States can only be 
 disposed of by authority of Congress, expressed in a special 
 or general act. 9 Congress has passed general laws providing 
 for the sale of public lands. These laws provide for the es- 
 tablishment of land offices in the Western and other States 
 where the general government still owns large tracts of land, 
 and the would-be purchaser is required to make his negotia- 
 tions with the registers and receivers of these offices. The 
 purchaser enters upon the records of the office a full and com- 
 plete description of the land he desires to purchase, and hav- 
 ing paid the purchase-money, he receives from the register a 
 certificate of entry, as it is called, which entitles him to a 
 patent, which is the formal deed of conveyance required by 
 the general laws for the transfer of the legal title. The pat- 
 
 Martin v. Waddell, 16 Pet. 411; Charles River Bridge v. Warren 
 Bridge, 11 Pet. 580; Commonwealth V. Roxbury, 9 Gray 492; Hyman v. 
 Read, 16 Cal. 444. See Story v. Woolverton (Mont. 1904), 78 Pac. 
 Rep. 589. 
 
 T Kennedy v. McCartney, 4 Port. 141. 
 
 s Mayor, etc., r. Ohio & P. R. R., 26 Pa. St. 355; Elmendorf v. Car- 
 miohael, 3 Litt. 472; State v. Crutchfleld, 3. Head 113. 
 
 Lorrimer v. Lewis, 1 Morris (Iowa) 253; Pratt 0. Brown, 3 Wis. 
 603; Challefoux v. Ducharme, 8 Wis. 306; Foley v. Harrison, 5 La. 
 An. 7ft; Freedman v. Goodwin, 1 McAll. Ch. 142; Terrett v. Taylor, 9 
 Cranch 50; Chouteau v. Eckhart. 2 How. 372; Wilkinson v. Leland, 2 
 Pet. 662; Strother v. Lucas, 12 Pet. 454. 
 
 741
 
 521 TITLE BY PUBLIC GRANT. [PART III. 
 
 ent is signed by the President, or by one authorized to affix 
 his signature, and sealed with the seal of the United States. 10 
 
 521. The relative value of the patent and certificate of 
 entry. According to some of the cases arising in the State 
 courts, the certificate of entry vests an inchoate or imperfect 
 legal title in the vendee, which will enable him to maintain 
 ejectment or trespass against a trespasser, and that the patent 
 is merely the perfection of the imperfect legal title already 
 acquired, by providing the strongest kind of evidence of the 
 previous grant. 11 But the United States courts maintain that 
 the purchaser only acquires an equitable title, which is not 
 sufficient to support legal actions in defense of the land, but 
 which is sufficient to vest in him an absolute right to the pat- 
 ent. Once a certificate of entry has been lawfully issued, the 
 same land cannot be subsequently sold. 12 This distinction be- 
 tween a patent and a certificate of entry is so well and gener- 
 ally recognized that where a patent has been issued to one per- 
 son, and another is entitled to the patent by virtue of the prior 
 entry and certificate, the patentee, nevertheless, holds the ab- 
 
 10 3 Washburn on Real Prop. 185 ; People v. Livingston, 8 Barb. 253 ; 
 Doe v. Mcllvaine, 14 Ga. 252; Hulick t\ Scovil, 9 111. 174. Once the 
 patent has been legally executed and delivered it cannot be revoked. 
 Fletcher v. Peck, 6 Cranch 87; Grignon v. Astor, 2 How. 319; Doe v. 
 Beardsley, 2 McLean 412; Stockton v. Williams, 1 Dougl. (Mich.) 546. 
 See Southold v. Parks, 90 N. Y. S. 1116, 97 App. Div. 636. For pro- 
 cedure to procure patent to mineral upon the public land of the 
 United States, see White, Mines & Min. Rem., Ch. 3, and Government 
 and State statutes and decisions cited. 
 
 11 Sims v. Irvine, 3 Ball. 456; Carman V. Johnson, 29 Mo. 94; Forbes 
 v. Hall, 34 111. 167; McDowell v. Morgan, 28 111. 532; Waterman V. 
 Smith, 13 Cal. 419. See, also, Copley v. Riddle, 2 Wash. C. Ct. 354; 
 Sweatt V. Corcoran, 37 Miss. 516; Dickinson V. Brown, 9 Smed. & M. 
 130; Peterson v. Sloss (Wash. 1905), 81 Pac. Rep. 744. 
 
 izFenn V. Holme, 21 How. 481; Bagnell V. Broderick, 13 Pet. 436; 
 Lindsey V. Miller, 6. Pet. 666; Fletcher v. Peck, 6 Cranch 87; Mayor 
 v. DeArmas, 9 Pet. 223; Carman v. Johnson, 20 Mo. 108; Neteon v. 
 Sims, 23 Miss. 383; Astrom v. Hammond, 3 McLean 107 j West V. 
 Hughes, 1 Harr. & J. 6; Cavender v. Smith, 5 Iowa 189. 
 742
 
 CH. XXII.] TITLE BY PUBLIC GRANT. 521 
 
 solute legal title until the patent has been avoided by a direct 
 proceeding brought for that purpose by the government, or by 
 the rightful owner in its name. The patent in collateral pro- 
 ceedings is conclusive evidence of title, and cannot then be 
 questioned, unless it be void upon its face. 13 Nor can the pat- 
 ent be attacked and avoided by one who claims a superior 
 right to the land by a prior entry, after the patentee has sold 
 to a bona fide purchaser. 1 * But the courts all agree that the 
 certificate of entry vests in the purchaser sufficient title, 
 whether legal or equitable, so that it can be aliened or devised ; 
 and upon the death of the purchaser before the issue of the 
 patent it descends to his heirs; and the purchaser's alienee, 
 devisee and heirs, respectively, are entitled to the patent, in 
 the place of the person to whom the certificate has been 
 given. 15 But where the purchaser has died the patent must be 
 made out in the name of the heirs. A patent issued in the name 
 of a purchaser, in pursuance of a certificate of entry, but after 
 the death of the purchaser, is void, and the heirs cannot take 
 advantage of it. 18 And where a purchaser has assigned his 
 
 "Bagnell V. Broderick, 13 Pet. 436; Hill V. Miller, 36 Mo. 182; 
 Stringer v. Young, 3 Pet. 320; Boardman v. Reed, 6 Pet. 328; Curie 
 V. Barrell, 2 Sneed. 68; Willot v. Sandford, 19 How. 79. See Brush 
 f. Ware, 15 Pet. 93; Sweatt v. Corcoran, 39 Miss. 516; Harris V. Mc- 
 Kissack, 34 Miss. 464; Dickinson V. Brown, 9 Smed. & M. 130; Maxcy 
 v. O'Connor, 23 Texas 238; United States V. Clark, 138 Fed. Rep. 294; 
 Schebrede v. State Land Board (Or. 1905), 81 Pac. Rep. 702. 
 
 uRobbins v. Moore, 129 111. 30; United States v. Clark, 138 Fed. 
 Rep. 294. 
 
 "Gait V. Galloway, 4 Pet. 332; Brush V. Ware, 15 Pet. 93; Reeder 
 r. Barr, 4 Ohio 458; Adams V. Logan, 6 B. Mon. 175; Shanks v. Lucas, 
 4 Blackf. 476; Goodlet v. Smithson, 5 Port. 243; Wright v. Swan, 6 
 Port. 84; Forsythe v. Ballance, 6 McLean 562. 
 
 IB Galloway v. Finley, 12 Pet. 264 ; Blankenpickler v. Anderson's 
 Heirs, 16 Gratt. 59 ; Wood v. Ferguson, 7 Ohio St. 288 ; Phillips v. Sher- 
 man, 36 Ala. 189. Contra, Schedda v. Sawyer, 4 McLean 181. See 
 Thomas v. Wyatt, 25 Mo. 24; Thomas t?. Boerner, 25 Mo. 27. But by 
 the art of Congress of 1836, if the patent is issued to a deceased per- 
 son, in ignorance of his death, it will inure to the benefit of his heir*. 
 Phillips v. Sherman, 36 Ala. 189; Stubblefield v. Boggs, 2 Ohio St. 216. 
 
 743
 
 522 TITLE BY PUBLIC GRANT. [PAKT 111. 
 
 certificate, and takes out a patent in his own name, he will 
 hold the legal title thus acquired in trust for his assignee, 
 and he can be required to make the proper conveyances. 17 
 But in such a case, there must be a correspondence of the de- 
 scriptions of the lands in. the patent and in the conveyance. 18 
 In all cases, in order to entitle one to a patent, the land must 
 be clearly described in the certificate of entry, so as to enable 
 an easy identification of the land. An inaccurate or obscure 
 description would bar the right to a patent. 10 
 
 522. Pre-emption. In order to encourage immigration 
 and the actual settlement upon public lands, the acts of 
 Congress, from an early day, have provided that where one 
 actually settles upon public lands, and makes entry upon 
 the records of the land office of his claim, with accurate 
 description of the land upon which he has settled, he ac- 
 quires thereby the so-called "pre-emption" right, which en- 
 titles him to a patent to the land so occupied at the minimum 
 price fixed by law for the sale of public lands, and gives him 
 a superior claim to a patent over all other persons who may 
 acquire interests in the same land. 20 One cannot claim the 
 pre-emption right to more than one quarter section, or one 
 hundred and sixty acres. 21 But no one can claim pre-emption 
 to lands which have been set apart as a reservation, or to 
 lands which are situated within the limits of a town or 
 
 "Trimble r. Boothby, 14 Ohio 109; Moore V. Maxwell, 18 Ark. 469; 
 Hennen r. \Yood, 16 La. An. 263. " A homestead entryman has, after 
 making final proof, an equitable title to the land entered on, which may 
 be transferred by him." Peterson v. Sloss (Wash. 1905), 81 Pac. Rep. 
 744. 
 
 is Prentice V. Northern Pac. R. R. Co., 43 Fed. Rep. 270. 
 
 i Lafayette v. Blanc, 11 How. 104; Ledoux t>. Black, 18 How. 473. 
 
 20 3 Washburn on Real Prop. 200 ; U. S. Rev. Stat., Sees. 2256, 2257 ; 
 United States v. Fitzgerald, 15 Pet. 407; Craig r. Tappin, 2 Sandf. Ch. 
 78; McAfee V. Keirn, 7 Smed. & M. 780; Brown v. Throckmorton, 11 
 III. 529. 
 
 21 U. S. Rev. Stat., Sec. 2259. See, also, U. S. Comp. St. 1901, pp. 
 1611, 1388, 1389. 
 
 744
 
 CH. XXII.] TITLE BY PUBLIC GRANT. 522 
 
 city, or those on which persons have actually settled for 
 the purpose of carrying on any business or trade, other 
 than agriculture, or on which there are known salt or other 
 mines. 22 And in order to entitle one to pre-emption, he must 
 make oath that he does not own three hundred and twenty 
 acres of land in any State or Territory, and that he has 
 not abandoned a residence on his own land within the same 
 State or Territory, in order to reside upon the public- 
 lands. 23 By the entry in the land office, and actual settle- 
 ment upon the land, only an inchoate title is acquired. To 
 perfect it, and obtain an absolute legal title, payment of the 
 purchase-money must be made within thirty months after the 
 entry. 2 * This inchoate title descends to the heirs of the pre- 
 emptor. 25 But it cannot be assigned so as to give the assignee 
 a right to the pre-emption, as against the government, or 
 one claiming under a patent. 26 But where the pre-emptor 
 has undertaken to convey before he has acquired the legal 
 title, he will take the patent as trustee for the assignee, and 
 the latter will acquire the benefit of it by instituting the 
 proper proceedings. 27 In like manner, creditors cannot levy 
 upon the pre-emption right. 28 Very often conflicting claims, 
 arise under the exercise of the pre-emption right, growing- 
 out of deficient locations and entries; and it is provided by 
 the acts of Congress that these disputes shall be settled by 
 the land commissioners and registers. In the settlement 
 of these disputes, the commissioners act in a judicial capacity 
 
 22 U. S. Rev. Stat., Sec. 2258;- Act Cong. March 3, 1893, c. 208, 27" 
 Stat. 555. See White, Mines & Min. Rem., Ch. 3. See State v. Tanner 
 (Neb. 1905), 102 N. W. Rep. 235. 
 
 28 U. S. Rev. Stat., Sees. 2260, 2262. 
 24 U. S. Rev. Stat., Sec. 2267. 
 
 23 Hunt f. Wickliff, 2 Pet. 201 ; Johnson v. Collins, 12 Ala. 322. 
 
 z U. S. Rev. Stat. Sec. 2263 ; Craig v. Tappin, 2 Sandf. Ch. 78 ; Lytle- 
 V. Arkansas, 9 How. 333; Barnard's Heirs v. Ashley's Heirs, 18 How. 
 44; Myers V. Croft, 13 Wall. 291; Frisbie v. Whitney, 9 Wall. 187;. 
 Hutchins v. Low, 15 Wall. 77; Phelps v. Kellopg, 15 111. 131. 
 
 27 Camp. v. Smith, 2 Minn. 155; Delaunay v. Burnett, 9 111. 454. 
 
 28Rodgers v. Rawlins, 8 Port. 326. 
 
 745
 
 522 TITLE BY PUBLIC GRANT. [PART III. 
 
 and their decisions are subject to appeal to the higher 
 authorities, but otherwise they are final and conclusive, unless 
 tainted with fraud.* 9 
 
 2 See Barnard's Heirs V. Ashley's Heirs, 18 How. 43; Garland V. 
 Wynn, 20 How. 6 ; Tate V. Carney, 24 How. 357 ; State V. Batchelder, 1 
 Wall. 109. See Small V. Rakestrow, 196 U. S. 403; Smith v. Finger 
 (Okl. 1905), 79 Pac. Rep. 759; Le Fevre v. Amonson (Idaho 1905), 81 
 Pac. Rep. 71; Hartwell V. Harigshorst, 196 U. S. 635. 
 746
 
 SECTION II. 
 
 TITLE BY INVOLUNTARY ALIENATION. 
 
 SECTION 523. Title by involuntary alienation, what is? 
 
 524. Scope of legislative authority. 
 
 525. Eminent domain. 
 
 526. Persons under disability. 
 
 527. Confirming defective titles. 
 
 528. Sales by administrators and executors. 
 
 529. Sales under execution. 
 
 530. Sales by decree of chancery. 
 
 531. Tax-titles. 
 
 532. Validity of tax-title. 
 
 533. Judicial sales for delinquent taxes. 
 
 523. Title by involuntary alienation, what is? Under 
 the head of title by involuntary alienation are included all 
 the modes of transferring one man's title to lands to another, 
 against his will or without his co-operation. Circumstances 
 often arise, when such alienation is necessary to attain the 
 ends of justice. The kinds of involuntary alienation are so 
 numerous, and they are so largely regulated by varying local 
 statutes that in so limited a work as the present it will be 
 impossible to do more than give a general outline and classi- 
 fication of these modes of conveyance, and present the salient 
 features of each. 
 
 524. Scope of legislative authority. Except the power, 
 which the court of chancery possesses in certain cases, and 
 which will be explained in the proper place, the power to 
 effect an involuntary alienation rests upon legislative enact- 
 ment. As a general proposition, the Legislature cannot divest 
 one of his vested rights against his will. It can enact laws 
 for the control of property and of its disposition, but it can- 
 not take the private property of one man and give it to 
 
 747
 
 524 INVOLUNTARY ALIENATION. [PART III. 
 
 another. 30 But there are certain well-known exceptions to 
 this general rule, where the interference of the Legislature 
 is necessary to save and protect the substantial interests of 
 individuals on account of their own inability to do so, or to 
 promote the public good. In some of the State Constitutions 
 there is a provision against the enactment of special laws 
 operating upon particular individuals or upon their property. 
 In those States, therefore, involuntary alienation can only be 
 effected by a general law, applicable to all persons under like 
 circumstances. But in the absence of such a constitutional 
 provision, the transfer of lands may be made by special act 
 of the Legislature, as well as under a general law. 31 But 
 wherever such a transfer by special act of the Legislature 
 would involve the assumption of judicial power, it would be 
 generally held void, under the common constitutional provi- 
 sion which denies to the Legislature the exercise of such 
 powers. 32 The cases in which the Legislature may provide 
 for involuntary alienation may be divided into the following 
 six general classes : 1. In the exercise of the right of eminent 
 domain. 2. In the case of persons under disability to pro- 
 tect their interests by sale and investment. 3. For confirm- 
 ing defective titles. 4. Sales by administrators and executors. 
 
 so Wilkinson v. Leland, 2 Pet. 658; Adams v. Palmer, 51 Me. 494; 
 Commonwealth v. Alger, 7 Cush. 53; Varick v. Smith, 5 Paige 159; 
 John and Cherry Street, 19 Wend. 676; Taylor v. Porter, 4 Hill 147; 
 Russell v. Rumsey, 35 111. 374 ; Good v. Zercher, 12 Ohio 368 ; Deutzel v, 
 Waldie, 30 Cal. 144. 
 
 si Sohier v. Mass. Gen. Hospital, 3 Cush. 483 ; Kibby v. Chitwood, 4 
 B. Mon. 95; Edwards V. Pope, 4 111. 473. "The disposition of property 
 by will and the right to name executors are not vested rights, but are 
 regulated and controlled by statute." In re Avery's Estate (N. Y. Sur. 
 1904), 92 N. Y. S. 974, 45 Misc. Rep. 529; In ro American Security & 
 Trust Co., Id. 
 
 32 Rice v. Parkman, 16 Mass. 326; Jones v. Perry, 10 Ycrg. 59; Lane 
 v. Dorman, 4 111. 238 ; Edwards v. Pope, 4 111. 473. " The interpretation 
 of a law, the declared purpose of which is to establish the boundaries 
 between two parishes, is a judicial function." Parish of Caddo v. 
 Parish of Red River (La. 1905), 38 So. Rep. 274. 
 748
 
 CH. XXII.] INVOLUNTARY ALIENATION. 525 
 
 5. Sales under execution. 6 Sales to satisfy the claim of 
 the State for taxes. 
 
 525. Eminent domain. As already explained in the 
 third chapter, all real property is held subject to the exercise 
 of the right of eminent domain. Whenever it is necessary 
 or beneficial to the public that certain lands shall be appro- 
 priated for public use, the State through the Legislature has 
 the right to confiscate such land upon payment of a proper 
 compensation therefor to the owner of the land. 33 The State 
 may exercise the right, or it may authorize a corporation of 
 a public character, such as railroads, turnpike companies, etc., 
 to exercise it. 3 * But the corporation must be one in whose 
 maintenance the public is interested, and from whose existence 
 the public is to derive a benefit. The State cannot authorize 
 a private individual or a strictly private corporation to take 
 the lands of another with or without compensation. 35 
 
 33 Haskell V. New Bedford, 108 Mass. 214 ; Commonwealth v. Alger, 7 
 Cush. 92; Clarke V. Rochester, 24 Barb. 481; Carson v. Coleman, 11 
 N. J. Eq. 108; Moose V. Carson, 104 N. C. 431, 10 S. E. Rep. 689. 
 
 34Cushman V. Smith, 34 Me. 247; Bloodgood v. Mohawk & H. R. R., 
 18 Wend. 9; Matter of Townsend, 39 N. Y. 171; Burt v. Merchants' 
 Ins. Co., 106 Mass. 356; Orr v. Quimby, 54 N. H. 590; Gilmer V. Lime 
 Point, 18 Cal. 229. 
 
 as Wilkinson V. Leland, 2 Pet. 658; Adams V. Palmer, 51 Me. 494; 
 Commonwealth v. Alger, 7 Cush. 53; Flagg v. Flagg, 16 Gray 180; 
 Wild v. Deig, 43 Ind. 455, 13 Am. Rep. 404; Gillan V. Hutchinson, 16 
 Cal. 156. Since it is not imposed upon the State as a- public duty to 
 erect and maintain light-houses it cannot appropriate lands for such a 
 purpose; but the United States may do so, and the only power the State 
 has is to cede jurisdiction to the United States over the land thus 
 taken. Burt V. Merchants' Ins. Co., 106 Mass. 360; People V. Hum- 
 phrey, 23 Mich. 471. In like manner the State may grant to the 
 United States the authority to appropriate lands for the erection of 
 post-offices and other public buildings. Burt v. Merchants' Ins. Co., 108 
 Mass. 356; Orr v. Quimby, 54 N. H. 590; Gilmer v. Lime Point, 18 Cal: 
 229. The statutes of Utah, giving a private individual the right to 
 condemn his neighbor's land for irrigation purposes, is upheld by the 
 Supreme Court, on account of the local conditions in Utah and the in- 
 terests of the public in the development of the arid lands of the State. 
 
 749
 
 527 INVOLUNTARY ALIENATION. [PART m. 
 
 526. Persona under disability. Where persons are under 
 a legal disability which prevents them from making a valid 
 sale of their property, and such sale and reinvestment of the 
 proceeds of sale are necessary for the conservation of their 
 interests, the State, in the capacity of parens patrice, has the 
 power to authorize a sale by the guardians of such persons. 
 This may be done by special act or by a general law. 36 The 
 property of persons who are not under a disability cannot 
 be sold by authority of the courts, on the ground that such 
 a sale would be beneficial. 37 In most of the States there are 
 general laws authorizing the courts to empower the guardians 
 of minors, lunatics, arid other persons under disability, to 
 make sale of the real property of such persons. Generally 
 the sales are made under special orders of the court, and 
 in making the conveyance the deed should contain recitals of 
 all the preliminary proceedings, which are necessary to the 
 effectual transfer of the title; but these recitals are not 
 absolutely necessary, provided the deed shows on its face in 
 what capacity the grantor executes the deed. 38 
 
 527. Confirming defective titles. Generally, when a title 
 is defective through some informality in the execution of the 
 conveyance, upon a proper case being made out, the court 
 of equity will afford an ample remedy by decreeing a reforma- 
 tion of the instrument. 39 But cases do arise where, through 
 
 Nash v. Clark, 27 Utah 158, 101 Amer. St. Rep. 953, 75 Pac. Rep. 371, 
 198 U. S. 361, 49 L. Ed. 1058. 
 
 se Sohier v. Mass. Gen. Hospital, 16 Mass. 326; s. c., 3 Gush. 483; 
 Davidson v. Johonnot, 7 Mete. 395; Cochran v. Van Surlay, 20 Wend. 
 365 ; Estep V. Hutchman, 14 Serg. & R. 435 ; Doe v. Douglass, 8 Blackf . 
 10; Jones V. Perry, 10 Yerg. 59. 
 
 37 Wilkinson v. Leland, 2 Pet. 658; Adams v. Palmer, 51 Me. 494; 
 Irvine's Appeal, 16 Pa. St. 256; Palairit's Appeal, 67 Pa. St. 479. 
 In re Bryden's Est. (Pa. 1905), 61 Atl. Rep. 250. 
 
 383 Washburn on Real Prop. 210, 211. In re Kimble (Iowa 1905), 
 103 N. W. Rep. 1009. 
 
 3 Adams V. Stevens, 49 Me. 362; Brown v. Lamphear, 35 Vt. 260; 
 Metcalf v. Putnam, 9 Allen 97; Conedy v. Marcy, 13 Gray 373; Keene's 
 750
 
 CH. XXII.] INVOLUNTARY ALIENATION. 528 
 
 the absence or death of the parties, or through a want of 
 knowledge as to who they are, it is impossible to obtain 
 a reformation in chancery, and even in cases where the equi- 
 table remedy is only troublesome and inconvenient, and the 
 defect is only an informality, which does not go to the 
 essence of the conveyance, and which does not create any 
 doubt as to the intention to make a valid conveyance, the 
 power of the Legislature to interfere and cure the defect by 
 special act has generally been sustained by the courts of 
 those States, where special acts are not inhibited by the 
 Constitution. Thus the defective certificate of a wife's ac- 
 knowledgment has been perfected by special act. 40 
 
 528. Sales by administrators and executors. Where one 
 dies without having made provisions for such contingencies, 
 it is often necessary that some one should be authorized to 
 make a sale of the lands, for the purpose of making an effec- 
 tive administration, and to protect and satisfy the claims of 
 those who are interested in the property. If the deceased 
 leaves a will he very often, perhaps generally, empowers the 
 executor to make sale of the land. Where the executor has 
 this testamentary power, his sales are presumed to be under 
 this power, and there is no need of a resort to the statutory 
 power. 41 But these express testamentary powers are supple- 
 mented by statutes, which authorize courts of probate to 
 order a sale of the decedent's lands by the administrator or 
 
 Appeal, 64 Pa. St. 274; Mills V. Lockwood, 42 111. Ill; Gray V. Horn- 
 beck, 31 Mo. 400. " A lease executed under a mutual mistake may be 
 reformed." RaneUi 0. Zeppetelli (N. Y. Sup. 1905), 94 N. Y. S. 561. 
 " Errors of description in deeds to real estate may be corrected as 
 between the parties." Penn v. Rodriguez (La. 1905), 38 So. Rep. 955. 
 
 <o Wilkinson v. Leland, 2 Pet. 627 ; . c., 10 Pet. 294 ; Watson v. Mer- 
 cer, 8 Pet. 88; Kearney v. Taylor, 15 How. 494; Adams v. Palmer, 51 
 Me. 494. See Florentine v. Barton, 2 Wall 210; Jones v. Perry, 10 
 Yerg. 59. But a defective tax-title cannot be made good by legislative 
 enactment. Conway V. Cable, 37 111. 82. 
 
 41 Payne v. Payne, 18 Cal. 291; White v. Moses, 21 Cal. 44. See 
 Burnes v. Burnes (Mo. 1905), 137 Fed. Rep. 781. 
 
 751
 
 $ 529 INVOLUNTARY ALIENATION. [PART III. 
 
 executor, whenever necessary to the full performance of his 
 duties. Thus, if the personal property is not sufficient to 
 satisfy all the debts, the administrator or executor may, under 
 order of the court, make a valid sale of the lands, and the 
 proceeds of the sale will constitute in his hands a trust fund, 
 out of which the claims of the creditors must be satisfied. 42 
 A sale may be authorized by special act of the Legislature, 
 as well as by order of the court under a general law. 43 In 
 all these cases the deed of conveyance should contain recitals 
 of the compliance with all the requirements of the statute 
 as to the preliminary proceedings, although perhaps such re- 
 citals are not absolutely necessary to the validity of the con- 
 veyance, if the authority of the grantor to make the con- 
 veyance appears otherwise on the face of the deed. 44 
 
 529. Sales under execution. By the early common law 
 lands were inalienable for any purpose, and they could not 
 In consequence be sold to pay the debts of the owner. But as 
 trade and commerce increased, it became necessary that the 
 creditors should be provided with means for satisfying their 
 claims by compulsory process against the debtor's property. 
 In compliance with the popular demand, the statutes merchant 
 and statutes staple were passed, which created in the creditors 
 an estate in the debtor's lands whereby he was entitled to 
 nter into possession and satisfy himself out of the rents 
 and profits. 45 These statutes have been abolished in Eng- 
 land, where they have been superseded by the writ of elegit, 
 
 *23 Washburn on Real Prop. 209. 
 
 Wilkinson v. Leland, 2 Pet. 627; Watkins V. Holman, 16 Pet. 59; 
 -"Sohier V. Trinity Church, 109 Mass. 1; Langdon v. Strong, 2 Vt. 234; 
 TCibby v. Chitwood, 4 B. Mon. 95; Shehan v. Barnett, 6 B. Mon. 594. 
 
 4 Campbell v. Knights, 26 Me. 224; Doolittle v. Holton, 28 Vt. 819; 
 Planters' Bk. V. Johnson, 7 Smed. & M. 449; Jones v. Taylor, 7 Texas 
 240; White V. Moses, 21 Cal. 44. "A sale of real estate by an admin- 
 istrator under an order and decree of court is a judicial sale." Pierce 
 t. Vansell (Ind. App. 1905), 74 N. E. Rep. 554; Padeata v. Bims (N. J. 
 Ch. 1905), 60 Atl. Rep. 815. 
 
 2 Bla. Com. 161, 162. 
 752
 
 CH. XXII.] INVOLUNTARY ALIENATION. 529 
 
 which bears such a close resemblance to the American statutes 
 of execution that a separate discussion of its principles will 
 not be necessary. In all the American States there are 
 statutes which provide that when a creditor obtains judgment 
 against his debtor, he may cause a writ of execution to be 
 issued against the property of the debtor, under which the 
 sheriff is authorized to make sale of the real property, and to 
 execute the proper deeds of conveyance. The interest which 
 the creditor acquires in his debtor's lands under the execution 
 is so far a vested interest, that he has been held entitled to 
 the crops growing on the land, and to the fixtures attached 
 thereto, and he may restrain the removal of either. 46 And 
 Mr. Washburn calls such interests estates by execution.* 7 But 
 they are of so ephemeral a character that it was not con- 
 sidered necessary to discuss them in an independent chapter. 
 If these interests can be called estates, they are a species of 
 estate upon condition, which is defeated by the satisfaction 
 of the judgment and made absolute by sheriff's sale. 
 Where the property has been sold under execution to a 
 stranger he acquires an absolutely indefeasible title, if all 
 the requirements of the statute have been complied with. 
 And where the judgment, on which the execution was issued, 
 has been reversed on appeal, his title remains unaffected by 
 such reversal. 48 Where the purchaser is a party to the judg- 
 
 "Coolidge v. Melvin, 42 N. H. 537; Evans v. Roberts, 5 B. & C. 829; 
 Penhallow v. Dwight, 7 Mass. 34 ; Heard V. Fairbanks, 5 Mete. Ill; 
 Whipple v. Foot, 2 Johns. 423; Pattison's Appeal, 61 Pa. St. 297; Farrar 
 V. Chauffetete, 5 Denio 527. See Jones V. Rogers (Miss. 1905), 38 So. 
 Rep. 742; Ullman v. Cameron, 93 N. Y. S. 976; Poole v. French (Kan. 
 1905), 80 Pac. Rep. 997. 
 
 n 2 Washburn on Real Prop. 29. 
 
 "Feger v. Reefer, 6 Watts 297; Taylor v. Boyd, 3 Ohio 337; Gray 
 V. Brignordello, 1 Wall. 627 ; Parker V. Anderson, 5 B. Mon. 445. 
 Contra, Delano v. Wilde, 11 Gray 17. "A return on an execution dors 
 not transfer title, but only gives a right to demand a deed conveying 
 title." Jones v. Rogers (Miss. 1905), 38 So. Rep. 742. The purchaser 
 is not charged with a knowledge that the land sold was a homestead, 
 in Iowa. Rosenberger v. Hawkins, 103 N. W. Rep. 781. But the pur- 
 
 48 753
 
 530 INVOLUNTARY ALIENATION. [PACT I IT. 
 
 merit and the suit under it, a subsequent reversal would 
 defeat his title, since he cannot be called a subsequent pur- 
 chaser without notice. And in all cases of reversal of the 
 judgment, where the purchaser acquires an indefeasible title, 
 the debtor may have his action for damages against the judg- 
 ment creditor for the injury sustained by the sale of the 
 premises. 40 In order to further protect the creditor, it is 
 provided by most of the State statutes that the judgment, 
 when properly docketed, creates a lien upon all the debtor's 
 real property, which attaches to, and binds, the land into 
 whosesoever hands it may come. The judgment lien enables 
 the creditor to sell the land under execution, although it has 
 been conveyed away by the debtor to a purchaser for value. 
 But to make a valid conveyance in the case of a sale under 
 execution, the requirements of the statute must all have been 
 complied with, and usually, as in the case of sales by admin- 
 istrators and guardians, the deed should contain recitals of 
 the proceedings taken. 50 
 
 530. Sales by decree of chancery. The cases are numer- 
 ous in which the court of chancery has the power to decree 
 
 chaser is charged with notice of facts shown by the record. Inter- 
 national Co. V. Cichowicz, 114 111. App. 121. 
 
 2 Washburn on Real Prop. 29; Stinson V. Ross, 51 Me. 557. 
 
 BO Jackson V. Roberts, 11 Wend. 425; Weyand v. Tipton, 5 Serg. & R. 
 332; Doe v. Bedford, 10 Ired. 198; Den V. Wheeler, 11 Ired. 288; Ware 
 v. Bradford, 2 Ala. 676; Minor t;. President of Natchez, 4 Smed. & M. 
 602; Dunn V. Meriwether, 1 A. K. Marsh. 158. The return of the 
 sheriff of his proceedings in making the levy is conclusive evidence of 
 the facts there stated in respect to the levy between the debtor and 
 creditor and all other persons claiming under them. Bott V. Burnell, 
 11 Mass. 163; Whitaker v. Sumner, 7 Pick. 551. And the recitals of 
 the deed cannot be contradicted as to the power or order of sale, under 
 which the sale was made, by showing that it was made under some other 
 power or order. Jackson v . Croy, 12 Johns. 427 ; Jackson v. Vander- 
 heyden, 17 Johns. 167; Jackson v. Roberts, 11 Wend. 425; Snyder v. 
 Snyder, 6 Binn. 489. See Pullen v. Simpson (Ark. 1905), 86 S. W. Rep. 
 801; London v. Morris (Ark. 1905), 86 S. W. Rep. 672; Armstead v. 
 Jones (Kan. 1905), 80 Pac. Rep. 56. 
 
 754
 
 CH. XXII.] INVOLUNTARY ALIENATION. 530 
 
 a sale and conveyance, most of which have been already 
 incidentally mentioned, such as the decree of sale in the fore- 
 closure of a mortgage, in the enforcement of an equitable 
 lien, or in making an involuntary partition of joint estates, 
 and the like. Chancery has also the power to subject equitable 
 estates to the claims of creditors by the institution of a 
 suit called the creditors' bill. But all these subjects belong 
 more properly to a treatise on equity jurisprudence than to 
 one on real property, and it is intended to make here only 
 casual mention of them. In all these cases, originally, the 
 court in its decree ordered the holder of the legal title or 
 owner of the land to make the proper deeds of conveyance, 
 upon pain of being punished for contempt of court. If the 
 individual was obstinate, or beyond the jurisdiction of the 
 court, the court was powerless to eifect a conveyance. A 
 decree ordering a conveyance did not and could not pass the 
 title. 51 But now courts of equity generally possess the 
 power to authorize some officer of the court, usually the 
 master, to execute the necessary deeds of conveyance, and 
 such deeds will be as effectual in passing an indefeasible title 
 as the sheriff's deed under execution. 52 Like the sheriff's deed, 
 if an apppeal has been taken from the decree, and during the 
 pendency of the appeal the property has been sold and con- 
 veyed to a stranger, the title which he thereby acquires will 
 not be affected by the subsequent reversal of the decree. But 
 if the purchaser is a party to the suit, his title will fail, be- 
 cause he is not a purchaser without notice. 53 Like other modes 
 of involuntary alienation, the master's deed under an equi- 
 table decree of sale must show the proceedings taken and the 
 authority for making the sale, although recital* of these 
 
 BI Ryder v. Innerarity, 4 Stew. & P. 14; Mummy v. Johnston, 3 A. K. 
 Marsh. 220; Sheppard v. Comm'rs of Ross Co., 7 Ohio 271. 
 
 523 Washburn on Real Prop. 219; Vollenwender v. Vollenwender, 21G 
 111. 197, 74 N. E. Rep. 795. 
 
 5Galpin v. Page, 18 Wall. 350; Jackson v. Cadwell, 1 Cow. 641; 
 Gott v. Powell, 41 Mo. 416; Reynolds v. Harris, 14 Cal. 667. 
 
 755
 
 531 INVOLUNTARY ALIENATION. [PART III. 
 
 matters do not seem to be absolutely necessary to the validity 
 of the conveyance. 64 
 
 531. Tax-titles. The power of taxation is an essential 
 incident to government; without it the maintenance of gov- 
 ernment is impossible. Although the power of taxation 
 generally cannot properly be considered of feudal origin, 
 yet in its application to real property it assumes a decidedly 
 feudal character. If the power to tax real property rested 
 solely upon the obligations of citizenship, as most of the 
 authorities seem to hold, 55 then it could only be levied upon 
 those proprietors of lands who were citizens. As a matter 
 of fact, all lands situated within the jurisdiction of the gov- 
 ernment which levies the tax are taxed for their proportionate 
 share. The levying of a tax upon land, and the enforcement 
 of the levy, are proceedings in rem against the land, and not 
 in personam against the proprietors. 56 But whatever may be 
 the proper theory in respect to the character and the authority 
 of taxation, the government has not only the right to levy 
 the taxes necessary for the support of the government, but 
 also to provide means for enforcing the levy. In respect to 
 the collection of taxes assessed against real property, with 
 which alone we are here concerned, all the States have statu- 
 
 5* Atkins v. Kinnan, 20 Wend. 241; Wood v. Mann, 3 Sumn. 318; 
 Hamilton v. Crosby, 32 Conn. 347; Tooley v. Kane, 1 Smed. & M. Ch. 
 518. As to notice of facts shown by the record, see International Co. V. 
 Cichowicz, 114 111. App. 121. 
 
 ss Providence Bk. V. Billings, 4 Pet. 561; McCulloch v. Maryland, 4 
 Wheat. 428; Opinions of Judges, 58 Me. 591; Clarke v. Rochester, 24 
 Barb. 482; Phila. Ass'n, etc., V. Wood, 39 Pa. St. 73; Davison v. Ram- 
 say Co., 18 Minn. 482. 
 
 so Cooley on Tax. 360. In some of the States, however, a distinction 
 is made by statute between resident and non-resident lands, as they are 
 called, imposing a personal liability upon the owners of the resident 
 lands. Cooley on Tax. 278, 279. " In general, the location of land, 
 and not the residence of the owner thereof, determines where it is tax- 
 able, and, except so far as otherwise provided by statute, land is tax- 
 able in the district where situated, whether a school or a tax district." 
 People v. Howell (N. Y. Sup. 1905), 94 N. Y. S. 488. 
 756
 
 CH. XXII.] INVOLUNTARY ALIENATION. 532 
 
 tory provisions, authorizing certain officers of the government, 
 after the lapse of the proper time, and by instituting the 
 prescribed preliminary proceedings, such as listing and adver- 
 tising the lands, to sell the lands, upon which the taxes have 
 not been paid, to the highest bidder, usually at public sale, 
 and to appropriate the proceeds of sale, or so much thereof as 
 may be necessary to the payment of the taxes due and the 
 expenses incurred in the sale. The requirements of the stat- 
 utes, in order to make a valid sale of lands for unpaid taxes, 
 are in some States very minute, and they vary in detail in 
 every State. It will be impossible here to refer to the details 
 of the statutes, or of the decisions upon them. A discussion 
 of them would in itself constitute a volume of respectable size, 
 The reader is therefore referred to the statutes of his own 
 State and the decisions upon them for a careful study of the 
 law upon tax-titles. So difficult is it to fulfil all the require- 
 ments of the law in respect to the tax-titles, that the investi- 
 gator of titles always looks with suspicion upon a title which 
 depends upon a tax-deed. And the Superior Court of New 
 Hampshire is said to have declared ' ' that a tax-collector 's deed 
 was, prima facie, void. ' ' " 
 
 532. Validity of a tax-title. But notwithstanding the. 
 dubious estimation in which a tax-deed is held, if all the 
 requirements of the law as to the preliminary proceedings 
 have been complied with, the tax-deed conveys an absolute 
 title, and the purchaser cannot be divested of it, although he 
 may have paid for it a sum altogether disproportionate 
 to the real value of the land. 88 How far it is necessary to 
 observe all the minute requirements of the statute, in order 
 
 -.73 Washhurn on Real Prop. 225. See Blair f. Johnson, 215 111. 552, 
 74 X. E. Rep. 747; Graton f. Land & Lumber Co. (Mo. 1905), 87 S. W. 
 Rep. 37. 
 
 B8Hardin r. Tibbils, 15 VVis. 232; Wofford r. McKinna, 23 Texas 43. 
 " The title of the purchaser at a tax sale is not the same as that of 
 ''" owner in whose name the land was sold, but they are separate and 
 ,. -,ilc claims." State v. Harman (W. Va.), 50 S. E. Rep. 828. 
 
 757
 
 532 INVOLUNTARY ALIENATION. [PART III. 
 
 to make a valid sale of delinquent lands, is not clearly set- 
 tled by the courts. Although some of the decisions seem to 
 go to the length of requiring a strict and literal compliance 
 with all the provisions of the statute, yet the better opinion, 
 which seems to be more in consonance with the general drift 
 of authority, is that a substantial though strict compliance 
 with those provisions of the statute which are intended for 
 the protection of the delinquent proprietor, is all that is 
 necessary ; and that a failure to follow the statutory provisions, 
 which are intended for the benefit of the State, and which 
 does not affect the interests of the proprietor, will not vitiate 
 the purchaser's title, as against the former owner. 59 In all 
 proceedings at common law, based upon the forfeiture for 
 the failure to perform some public duty in which the title to 
 property is made to pass from the delinquent, the burden of 
 proving that all the provisions of the law of forfeiture had 
 been strictly complied with rests upon the purchaser. This 
 rule has generally been applied to tax-sales, and the deci- 
 sions cited below bear out Mr. Blackwell in his descrip- 
 tion of a tax-title, viz.: "The operative character of the deed 
 depends upon the regularity of the anterior proceedings. The 
 deed is not the title itself, nor even evidence of it. Its 
 recitals bind no one. It creates no estoppel upon the former 
 owner. No presumption arises from the mere production of 
 the deed, that the facts upon which it is based had any exist- 
 ence. When it is shown, however, that the ministerial officers 
 of the law have performed every duty which the law imposed 
 
 59 Brown v. Veazie, 25 Me. 359; Stevens v. McNamara, 36 Me. 176; 
 Langdon v. Poor, 20 Vt. 15; Wilson V. Bell, 7 Leigh 22; Rubey V. Hunts- 
 man, 32 Mo. 501; Ferris v. Coover, 10 Cal. 589. See, also, Ingram V. 
 Sherwood's Heirs (Ark. 1905), 87 S. W. Rep. 435. 
 
 o Stead's Ex'rs V. Course, 4 Cranch 402 ; Williams v. Peyton's Lessee, 
 4 Wheat. 77; Games V. Stiles, 14 Pet. 332; Parker v. Overman, 18 How. 
 142; Little V. Herndon, 10 Wall. 26; Jackson v. Shepard, 7 Cow. 88; 
 Annan v. Baker, 49 N. H. 161; French v. Patterson, 61 Me. 203; 
 Charles v. Waugh, 35 111. 315; Elliott v. Eddins, 24 Ala. 508; Doc c. 
 Ins. Co., 8 Smed. & M. 197; Hamilton V. Burum, 3 Yerg. 355; Fitch V. 
 Casey, 2 Greene (Iowa) 300; Bucknall v. Story, 36 Cal. 67. 
 758
 
 CH. XXII.] INVOLUNTARY ALIENATION. 533 
 
 upon them, and every condition essential to its character, then 
 the deed becomes conclusive evidence of title in the grantee 
 according to its extent and purport." 81 But it is so diffi- 
 cult for a purchaser to prove in detail the performance of the 
 preliminary proceedings required by the statutes, and it being 
 the policy of the State to provide an effective mode of selling 
 lands for delinquent taxes, statutes have now been passed in 
 some of the States which change the common-law rule of 
 evidence just stated and throw the burden of proof upon the 
 former owner, thereby making the tax-deed prima facie evi- 
 dence of title and of a compliance with the requirements of 
 the law. The power of the Legislature to shift the burden 
 of proof in tax-titles has been often questioned, but it is now 
 an unquestionable rule of law that the Legislature may make 
 the tax deed prima facie evidence of title, but cannot give to 
 it and its recitals the force of a conclusive presumption, that 
 all the preliminary proceedings had been faithfully carried 
 out. 62 
 
 533. Judicial sales for delinquent taxes. The cause of 
 the uncertainty, as to the validity of a tax-title, lies in the 
 fact that the proceeding, which culminates in the sale of the 
 land, is generally ex parte, no opportunity being given for 
 determining judicially whether the taxes are due, or for 
 properly protecting the interests of the delinquent. In order 
 to avoid this objectionable feature of tax-sales, in some of 
 the States, ribtably Illinois, it is provided by statute that the 
 tax-collector must institute suit against the delinquent in 
 
 01 Blackwell Tax Titles 430. A statute curing tax deeds will not 
 effect a deed made before the passage of the statute. State v. llarman 
 (W. Va.), 50 S. E. Rep. 828. 
 
 62 pillow r. Roberts, 13 How. 472; Orons v. Veazie, 57 Me. 517; John- 
 son v. Elwood, 53 N. Y. 435; Hoffman v. Bell, 01 Pa. St. 444; Whit- 
 ney t. Marshall, 17 Wis. 174; Abbott v. Lindenbower, 42 Mo. 162; . c., 
 46 Mo. 291; Genther v. Fuller, 36 Iowa 604; Ray v. Murdock, 36 Miss. 
 692; Bidleman v. Brooks, 28 Cal. 72; State V. Harman, 50 S. E. Rep. 
 828; Keho v. Aud. Gen. (Mich. 1904), 101 N. W. Rep. 809. 
 
 759
 
 533 INVOLUNTARY ALIENATION. [PACT lil. 
 
 some court of record, usually the County Court, and he is 
 only authorized to make a sale of the land under the decree 
 or judgment of the court. 03 The proceeding, although differ- 
 ing somewhat from the ordinary action at law, contains its 
 essential features, and has the same general effect as to the 
 conclusiveness of the judgment. If property is sold under 
 such a judgment, the purchaser's title cannot be affected by 
 any irregularity not taken advantage of in the judicial pro- 
 ceeding, unless the irregularity is so gross and so essential as 
 to deprive the court of its jurisdiction over the subject- 
 matter. 6 * Where the statute requires certain preliminary 
 proceedings to be observed, in order that the court may 
 obtain jurisdiction, a failure to institute them will vitiate the 
 purchaser's title, notwithstanding the sale rests upon a judg- 
 ment of the court. 65 This is certainly the fairest, as well 
 as the most effective, mode of enforcing the payment of 
 taxes,, and it is surprising that it has not been adopted by 
 all the States. 
 
 63 Hills v. Chicago, 60 111. 86; Webster v. Chicago, 62 111. 302. To 
 set a tax deed aside, in Illinois, the plaintiff cannot allege the mere 
 invalidity of the deed, but must allege and prove specific reason for 
 the invalidity of the deed. Langlais v. People, 212 111. 75, 72 N. E. 
 Bep. 28. 
 
 e* Cadmus V. Jackson, 52 Pa. St. 295; Dentler v. State, 4 Blackf. 
 258; Wall . Trumbull, 16 Mich. 228; Bailey v. Doolittle, 24 111. 577; 
 Wallace v. Brown, 22 Ark. 118; Eitel v. Foote, 39 Cal. 439; Mayo v. 
 Foley, 40 Cal. 281; Langlais v. People, 212 111. 75; 72 N. E. Rep. 28. 
 
 es Thatcher v. Powell, 6 Wheat. 119; Woods V. Freeman, 1 Wall. 398; 
 Fox. v. Turtle, f ~> 111. 377; Fortman V. Ruggles, 58 111. ^07; Mayo t\ 
 Ah Loy, 32 Cal. 477. In some States, the defense of payment of the 
 tax, if not interposed, will not effect the validity of the tax sale. 
 Blackwell, Tax Titles 94. But in Missouri, in a recent well considered 
 opinion, by Judg* 1 Marshall, the State's right to sell is held to exist 
 only by reason of its lien for the unpaid taxes, no lien exists where 
 the taxes were not delinquent; a judgment for taxes that have been 
 paid is held to be a nullity, although payment was not pleaded as a 
 defense, and the owner is held entitled to have the execution sale re- 
 called and the judgment set aside, on motion filed in the original pro- 
 coding before the return term of the execution, after sale. State, 
 cr rel, Williams v. Linzee, 146 Mo. 532. 
 760
 
 SECTION III. 
 
 TITLE BY PRIVATE GRANT. 
 
 SECTION 534. Title by private grant, what is? 
 
 (a.) Common-law conveyances. 
 
 535. Principal features and classes of common-law conveyances 
 
 536. Feoffment. 
 
 537. Grant. 
 
 538. Lease. 
 
 539. Release, confirmation and surrender. 
 
 (6.) Conveyances under the Statute of Uses. 
 
 540. Retrospection. 
 
 541. Covenant to stand seised. 
 
 542. Bargain and sale. 
 
 543. Future estates of freehold in bargain and sale. 
 
 544. Lease and release. 
 
 (c. ) Modern conveyances. 
 
 545. What conveyances judicially recognized. 
 
 546. Statutory forms of conveyance. 
 
 547. Quit-claim deeds. > 
 
 548. Dual character of common conveyances. 
 
 549. Is a deed necessary to convey freeholds? 
 
 534. Title by private grant, what is? The term 
 "grant," as here used, is generic in signification, and is 
 made to include all modes of private alienation, all convey- 
 ances inter vivos, as distinguishable from title by devise. 66 
 The term at common law had a more specific meaning, but 
 this restricted use of it has lost its practical value, and will 
 be mentioned in a subsequent paragraph only for the pur- 
 
 Mr. Washburn (3 Washburn on Real Prop. 353) cites Mr. Wood to 
 the effect that " the word grant, taken largely, is where anything is 
 granted, or passed from one to another; and in this sense it compre- 
 hends feoffments, bargains and sales, gifts, leases in writing or by deed, 
 and sometimes by word without writing." 3 Wood Conv. 7. See 4 
 Kent's Com. 491. 
 
 761
 
 535 PRIVATE GRANT. [PART III. 
 
 pose of explaining the source of modern rules of convey- 
 ancing. Conveyances may be divided into three principal 
 classes viz.: (a.) common-law conveyances; (6.) conveyances 
 under the Statute of Uses; (c.) modern conveyances. In this 
 order they will be presented. 
 
 (a.) COMMON-LAW CONVEYANCES. 
 
 535. Principal features and classes of common-law convey- 
 ances. A common-law conveyance, using the term in its 
 broadest sense, is one which directly, and by the force of 
 the conveyance itself, transfers the legal title to the grantee. 
 And when so considered, it includes the modern statutory 
 conveyances as well as those which were known at common 
 law. In a more restricted sense, it includes only the latter 
 class. Common-law conveyances may be sub-divided into 
 two classes, viz. : primary and secondary conveyances. A 
 primary conveyance is one which transfers the seisin or estate 
 to one, who has no other interest or estate in the property , 
 while the conveyance is called secondary, when the estate 
 previously created is enlarged, restrained, transferred, or extin- 
 guished. 67 The following are enumerated by Blackstone as 
 the principal kinds of primary and secondary conveyances: 
 Primary, (1) feoffment; (2) gift; (3) grant; (4) lease; 
 (5) exchange; (6) partition. Secondary, (1) release; (2) 
 confirmation; (3) surrender; (4) assignment; (5) de- 
 feasance. 67 * A gift, donatio, was the name applied to the 
 grant of an estate tail, and differed from a feoffment only 
 in the character of the estate created or granted. 67b An 
 exchange was an ancient conveyance, now obsolete, whereby a 
 mutual grant of equal interests is effected, the one in con- 
 sideration of the other, the peculiar value of which was its 
 capacity to take effect without livery of seisin, and merely 
 by entry into possession. But the interests or estates had to 
 
 2 Bla. Com. 309. 
 67a2 Bla. Com. 310. 
 7b2 Bla. Com. 316, 317. 
 762 
 
 I ' ...--- '-'^-M,- '* ' "^'V.
 
 CH. XXII.] PRIVATE GRANT. 536 
 
 be equal in quantity ; an estate in fee could not be exchanged 
 for one for life or for years, although they may be of equal 
 pecuniary value. 68 Partition, if voluntary, differs now very 
 little, if any, from the more common modes of conveyance. 
 Partition is made by ordinary deeds of indenture, conveying 
 to each of the partitioners his share in severalty. 69 Involun- 
 tary partition is, as the term applies, a species of involun- 
 tary grant effected through the decree of the court. 70 De- 
 feasance deeds have been already fully discussed in the chap- 
 ter on mortgages, and will require no further elucidation. 71 
 Assignment is more properly a transfer of an interest already 
 created than a peculiar mode of acquiring title. When 
 applied to the subject of conveyancing generally, it may be 
 treated as synonymous with the generic term conveyance. Its 
 peculiar signification in its application to estates for years has 
 been already explained. 73 The remaining common-law con- 
 veyances will now be explained somewhat in detail. 
 
 536. Feoffment. This was the chief common-law con- 
 veyance for the transfer of freehold estates in corporeal here- 
 ditaments, and arose out of the peculiarities of the feudal 
 relation between the lord and his tenants. The word feoff 'ment 
 is derived from the verb feoff are, or infeudare, to give one a 
 feud. It is, therefore, in its original sense, the grant of a 
 feud, donatio feudi. This is the only primary common-law 
 conveyance now known to us which is capable of transferring 
 a freehold. It is said to operate by transmutation of posses- 
 sion. It has no effect if there be no delivery of the possession. 
 In fact, the feoffment is itself nothing more than the delivery 
 of the possession with the intention to grant an estate of free- 
 hold. The grantor was called the feoff or and the grantee the 
 
 s 2 Bla. Com. 323. 
 See ante, Sec. 193. 
 TO See ante, Sec. 194. 
 
 71 See ante, Sees. 228, 234. 
 
 72 See ante, Sec. 139. 
 
 "2 Bla. Com. 310; Co. Lit. . 
 
 763
 
 536 PRIVATE GRANT. [PART HI. 
 
 feoffee. The feoffor, in order to make the conveyance, went 
 upon the land with the feoffee, and in the presence of wit- 
 nesses delivered to the latter a clod of earth, or a twig, or 
 some other thing taken from the land, which was treated as 
 a symbolical delivery of the land itself. The feoffee, who 
 during this time was standing presumably near the border, 
 but on the outside of the land, then entered upon it, and the 
 conveyance was complete. This ceremony was called livery of 
 seisin. 7 * No writing was necessary. Indeed, at first a deed 
 of feoffment was unusual. But later on, when the exigen- 
 cies of advancing civilization called forth the grant of lands 
 to different persons with different estates, or interests therein, 
 upon various conditions, and under multitudinous limitations, 
 it was found necessary to accompany the livery of seisin with 
 a deed, explaining and setting forth the terms and conditions 
 of the conveyance, in order to avoid the mistakes of witnesses, 
 which would naturally occur if they had to rely upon their 
 memory. But not until the enactment of the Statute of 
 Frauds in the reign of Charles II was it necessary for a 
 feoffment to be evidenced by a writing. 75 The conveyance by 
 feoffment passed the actual seisin in fee or for life according 
 to the terms of the gift, whether the feoffer had an estate in 
 the land or not. " If it is proposed to convey a fee simple, 
 it created an actual fee simple in the feoffee, by right or by 
 
 7* This symbolical delivery of possession is very ancient, and has 
 been employed by almost all of the historical nations. Thus we read 
 in the Old Testament of the Bible, Ruth, iv : 7 : " Now this was the 
 manner in former time, in Israel, concerning redeeming and concern- 
 ing changing, for to conform all things: a man plucked off his shoe and 
 gave it to his neighbor; and this was a testimony in Israel." Black- 
 stone also tells us that contracts for the sale of lands were made among 
 the Goths and Swedes in the presence of witnesses, who extended the 
 cloak of the buyer, wliile the seller cast a clod of the land into it, in 
 order to give possession; while a staff or wand was also delivered from 
 the vendor to the vendee, which passed through the hands of the wit- 
 nesses. 2 Bla. Com. 313. 
 
 "2 Bla. Com. 310-317; Williams on Real Prop. 147; 3 Washburn on 
 Real Prop. 233, 351. 
 764
 
 CH. XXII.] PRIVATE GRANT. 537 
 
 wrong, according as the feoffor was or was not seised in 
 fee. " 76 In consequence of this doctrine, a tortious f eoffmen t 
 disseised the righful owner, and until entry by him he was 
 absolutely divested of his seisin as if he had made the feoff- 
 ment himself. And where one attempted to make a feoff- 
 ment of a greater estate than he possessed, his feoffee would 
 acquire a tortious estate, and the smaller estate which the 
 feoffor actually possessed wo aid be lost or merged in the 
 tortious estate so granted. His feoffee, therefore, acquired no 
 indefeasible estate, and could be ousted at once by the right- 
 ful owner of the reversion. This explains the tortious opera- 
 tion of feoffments by the tenants of particular estates upon 
 contingent remainders, which has already been fully set 
 forth. 77 In England, and in most of the States of this coun- 
 try at the present day, feoffments have been either abolished 
 altogether, or they have by statute been prevented from 
 having any tortious operation upon future expectant estates. 78 
 The doctrine of seisin has been so fully explained in preceding 
 chapters that nothing further need here be said of it. 
 
 537. Grant. Conveyance by grant, at common law, was 
 the method of transferring or creating estates in incorporeal 
 hereditaments. These rights being intangible or incorporeal, 
 they could not be transferred by livery of seisin. "For which 
 reason all corporeal hereditaments, such as lands and houses, 
 
 7 3 Washburn on Real Prop. 351. 
 
 77 See ante, Sec. 317. 
 
 784 Kent's Com. 481; 3 Washburn on Real Prop. 351; Williams on 
 Real Prop. 146. In Alabama, Maine, New York, Wisconsin, Massa- 
 chusetts, Minnesota and Michigan. 1 Washburn on Real Prop. 120. 
 See Grout V. Townshend, 2 Hill 554 ; McCorry v. King's Heirs, 3 Humph. 
 267; Dennett V. Dennett, 40 N. H. 505. In South Carolina the tortious 
 operation of feoffment was for a long time recognized as an active ele- 
 ment of the law, and it until lately afforded to heirs, who were dissatis- 
 fied with the tenancy for life given to them by will, ready means for 
 defeating the contingent remainders over and acquiring the fee simple. 
 See Faber v. Police, 10 S. C. 376. But by a very late statute the tortious 
 effect of the feoffment has been abolished. 
 
 765
 
 538 PRIVATE GRANT. fpART III. 
 
 are said to lie in livery; and the others, advowsons, commons, 
 rents, reversions, etc., to lie in grant. ' ' 79 Conveyance by 
 grant could only be made by deed. In this respect the law 
 is still unchanged. But the deed of grant differs in form but 
 little from the deed of feoffment, the same operative words 
 being used in both, dedi et concessi, "have given and 
 granted." But the deed of feoffment is inoperative as a 
 conveyance, it simply acts as an attestation of the conveyance 
 made by the livery of seisin. At common law corporeal here- 
 ditaments could not be transferred by grant. 80 Another im- 
 portant distinction between feoffment and grant was that 
 a deed of grant could not be made to create a tortious 
 estate. A grant only conveys what the grantor had a right to 
 convey. It cannot work a disseisin of the reversioner. 81 
 
 538. Lease. This is properly a conveyance of a partic- 
 ular estate in lands, whether for life, or for years, or at 
 will, where a reversion is left in the grantor. 82 But at 
 present the term is used to indicate the conveyance of an 
 estate less than a freehold. Used in that sense, it is a 
 contract between lessor and lessee, vesting in the latter a 
 right to the possession of the land for a term of years. Until 
 possession is taken it is merely a chose in action, an executory 
 contract, which is called an interesse termini. It becomes an 
 estate when it takes effect in possession. No livery of seisin 
 is required, and the lessee merely enters upon the land. 83 It 
 is for this reason that an estate for years could be made to 
 commence in futuro, while it was impossible to do so with 
 a freehold. 84 
 
 79 1 Bla. Com. 317. 
 
 802 Bla. Com. 317; 3 Washburn on Eeal Prop. 352; Huff v. Mc- 
 Cauley, 53 Pa. St. 206; Drake v. Wells, 11 Allen 143; 2 Shars. Bla. 
 Com. 206, note. 
 
 si Co. Lit. 271 b, Butler's note; 4 Kent's Com. 353; 3 Washburn on 
 Real Prop. 352. 
 
 822 Bla. Com. 317. 
 
 832 Bla. Com. 318. See ante, Secfl. 131, 135. 
 
 * See ante, Sec. 132. 
 766
 
 CH. XXII.] PRIVATE GRANT. 539 
 
 539. Release, confirmation and surrender. These three 
 secondary conveyances are so nearly allied to each other that 
 they will be explained and distinguished in a single para- 
 graph. A release, as defined by Blackstone, "is a discharge 
 or a conveyance of a man's right in lands or tenements to 
 another that held some former estate in possession. The 
 words generally used there are demised, released and for- 
 ever quit-claimed."* 6 A virtual possession, i. e., a construc- 
 tive possession, which may be converted into an actual posses- 
 sion, is sufficient. And the possession of the lessee of a 
 tenant for life is so far the possession of the tenant for life 
 that the reversioner may make a release to him (the life 
 tenant) of the reversion. 88 The deed of release may be used 
 in the following cases : First, to enlarge a particular estate 
 in possession ; as where the reversioner releases the inheritance 
 to the tenant for life. But the reversion must be immediate 
 to the particular estate. An outstanding intermediate estate 
 would prevent a release of the reversion to the tenant in pos- 
 session. 87 Secondly, to pass the interest of one coparcener 
 or joint-tenant to another. Thirdly, to transfer to a disseisor 
 the disseisee's right of entry, and thus make the disseisor 's 
 title absolute. 88 A confirmation is, according to Lord Coke, 
 ' ' a conveyance of an estate or right in esse, whereby a voidable 
 estate is made sure and unavoidable, or whereby a particular 
 estate is increased. ' ' 89 The operative words in a confirma- 
 tion are "have given, granted, ratified, approved, and con- 
 firmed." 80 A surrender operates to transfer a particular 
 estate to the immediate reversioner, and is effected by the 
 words, "hath surrendered, granted, and yielded up." But it 
 can only take effect where the surrenderor has an estate in 
 possession, and the surrenderee has a higher estate in im- 
 
 852 Bla. Com. 324. 
 
 s Co. Lit. 270 a ; Hargrave's note 3. 
 
 87 Co. Lit. 273 b. 
 
 88 2 Bla. Com. 324, 325. 
 
 82 Bla. Com. 325; 1 Inat. 295. 
 o 2 Bla. Com. 325. 
 
 767
 
 540 PRIVATE GRANT. [PART III. 
 
 mediate reversion. 91 In all these cases the transfer is made 
 by force of the deed of release, confirmation or surrender, and 
 does not require livery of seisin in the first two cases, viz. : 
 release and confirmation, because the transferee has the seisin 
 already, and in the case of surrender because the seisin of the 
 surrenderor, having been acquired originally from the surren- 
 deree, is subordinate to the seisin in law of the surrenderee, 
 his reversioner, the estates of the two together constituting 
 one and the same seisin. 02 At the present day the ordinary 
 quit-claim deed, so-called, has all the qualities of the release 
 or confirmation, and is effective in any of these cases to 
 convey the interest of the grantor. 03 
 
 (&.) CONVEYANCES UNDER THE STATUTE OF USES. 
 
 540. Retrospection. It will be remembered, in discuss- 
 ing the subject of uses and trusts, it was stated that a use 
 could be created originally by a simple oral declaration of 
 the legal owner of the land, that he held it to the use of 
 another, provided the declaration was made for a good or 
 valuable consideration. 94 The Statute of Frauds subsequently 
 required all creations or grants of uses and trusts to be mani- 
 fested by some instrument in writing signed by the party 
 to be charged. 95 And although it has become customary to 
 create uses by instruments having all the formalities of a deed, 
 it is not necessary. These uses, when based upon a con- 
 sideration, were enforced in equity as readily as if there had 
 been a feoff ment to uses. 96 It has also been shown that when 
 the Statute of Uses was enacted, all uses in esse, and vested, 
 became at once executed into legal estates, the seisin being 
 transferred to the cestui que use by force of the statute, and 
 the future contingent uses were executed whenever they be- 
 
 01 2 Bla. Com. 326. 
 
 02 2 Bla. Com. 324-327. 
 os See post, Sec. 547. 
 
 o* See ante, Sec. 330. 
 See ante, Sees. 328, 330, 374. 
 See ante, Sec. 330. 
 768
 
 CH. XXII.] PRIVATE GRANT. 541 
 
 came vested. 97 After the passage of the Statute of Uses, there- 
 fore, it was possible to convey the legal estate without making 
 use of any of the primary common-law conveyances which 
 operated by transmutation of possession, and required 
 a livery of seisin. The grantor had only to make a declaration 
 of uses upon sufficient consideration. His declaration 
 vested the use or equitable estate in the grantee, and the 
 statute immediately executed it into a legal estate and trans- 
 ferred the seisin to him. Thus was avoided the necessity of 
 a resort to the cumbersome and ceremonial feoft'ment and 
 livery of seisin. With this explanation, and a knowledge of 
 the doctrine of uses and trusts, it is not difficult to under- 
 stand the operation of the deeds of covenants to stand seised, 
 bargain and sale, and lease and release. The deeds themselves 
 vest in the grantee only the use or equitable estate. The legal 
 use and seisin are transferred by the Statute of Uses. And 
 where any one of these deeds creates a future and contingent 
 use which cannot be executed by the statute, the operation 
 of the statute upon the deed will be suspended in respect to 
 such interest, until it has become vested and in a position 
 to be executed. 
 
 541. Covenant to stand seised. This is a covenant, be- 
 tween near relatives by blood or marriage, founded upon the 
 good consideration of natural love and affection, that the 
 covenantor, the legal proprietor of the land, shall stand seized 
 to the use of the covenantee. But the conveyance can only 
 operate as a covenant to stand seised when it is made upon 
 the consideration of blood or marriage. 98 
 
 i See ante, Sees. 338, 339, 349. 
 
 82 Bla. Com. 338; 2 Saunders on Uses 82; 2 Rolle Abr. 784, pi. 
 244; Emery v. Chase, 5 Me. 232. Although it is usual for the cove- 
 nant to be made with the person who is to receive the benefit of the use, 
 it is not necessary. A. may covenant with B. to stand seised to the 
 use of C., A.'s wife or child. Co. Lit. 112 a; Bedell's Case, 7 Rep. 40; 
 Brewer v. Hardy, 22 Pick. 376; Leavett v. Leavett, 47 N. H. 329; Bar- 
 rett v. French, 1 Conn. 354 ; Hayes v. Kershaw, 1 Sandf. Ch. 258. 
 
 49 769
 
 543 PRIVATE GRANT. [PART III. 
 
 542. Bargain and sale. This deed is in the nature of a 
 contract, in which the bargainer for a valuable consideration 
 bargains and sells the land to the bargainee, 09 and, under the 
 doctrine of equitable conversion, becomes the trustee for the 
 bargainee, holding the legal title and seisin in this fiduciary 
 capacity. As it appears from this definition, the bargain and 
 sale must be founded upon a valuable consideration, i. e., 
 money, or money 's equivalent. But the consideration need not 
 be an adequate compensation for the land. The covenant to 
 stand seised, and the bargain and sale are to be distinguished 
 by the relations of the parties, and the consideration upon 
 which the conveyance rests, and not by the operative words. 
 "Covenant to stand seised" is the operative clause in the 
 conveyance of that name, but neither it nor "bargain and 
 sell" has any technical, precise legal import; and a covenant 
 to stand seised, if founded upon a valuable consideration will 
 operate as a bargain and sale between strangers; while, on 
 the other hand, a bargain and sale deed without valuable 
 consideration will operate as a covenant to stand seised be- 
 tween near relations. 1 In England, by statute, no bargain and 
 sale can have the effect, under the Statute of Uses, of vesting 
 the legal title in the bargainee, unless it is made by deed, 
 and enrolled within six months in one of the courts of West- 
 minster Hall, or with the custos rotulorum of the country. 2 
 This statute has never been in force in the United States. 3 
 
 543. Future estates of freehold in bargain and sale. It 
 has been held in unqualified terms by the courts of Massachu- 
 setts and Maine, that a freehold estate to commence in futuro 
 
 99 Read Hanks V. Folsom, 11 Lea 555, distinguishing bargain and sale 
 deeds and executory contracts for sale of lands. See ante, Sec. 365. 
 
 iCo. Lit. 40 b; 2 Inst. 672; 1 Prest. Conv. 38; Daviess v. Speed. 12 
 Mod. 39; Trafton V. Hawes, 102 Mass. 533; Jackson r. Cadwell, 1 Cow. 
 639; Eckman v. Eckman, 68 Pa. St. 460. See post, Sec. 548. 
 
 22 Bla. Com. 338; 3 Washburn on Real Prop. 313. 
 
 s Rogers V. Eagle Fire Ins, Co., 9 Wend. 611; Jackson v. Wood. 12 
 Johns. 74; Given v. Doe, 7 Blackf. 210; Report of Judges, 3 Binn. 156. 
 770
 
 CII. XXII.] PRIVATE GRANT. 5-11 
 
 cannot be created by bargain and sale deed. 4 But it has been 
 held very generally elsewhere, that such a deed is capable 
 of creating a future estate of freehold, and even the 
 courts of the States above named have finally come to the 
 same conclusion, overruling the prior decisions to the con- 
 trary. 5 It is difficult to see how this error could have gained 
 such recognition. Bargain and sale, and covenant to stand 
 seised, rest upon the same foundation, that they both create 
 uses in the grantee, and operate under the Statute of Uses. 
 And there is no better established rule in respect to the sub- 
 ject of uses and trusts than that a use is free from the 
 restrictions controlling the limitation of common-law legal 
 estates, which arise from the doctrine of seisin, and the neces- 
 sity of livery of seisin, in order to convey a title. 
 
 544. Lease and release. This conveyance is stated to 
 have been invented by Sergeant Moore soon after the passage 
 of the Statute of Enrollment, and consists of two separate 
 instruments, a lease and a release, and was introduced to 
 avoid the necessity of enrolling the bargain and sale. The 
 lease is for one year, in the form of a bargain and sale, 
 which need not have been enrolled, since the statute referred 
 only to freeholds. This bargain and sale lease vested a use 
 for one year in the lessee, and the statute transferred to him 
 the possession and the legal title. Being then in possession 
 as tenant, he was in a position to receive the grant of the re- 
 version or freehold by way of a release. 6 This is, perhaps, 
 
 * Mar den r. Chase, 32 Me. 329; Pray v. Pierce, 7 Mass. 331; Gale t'. 
 Coburn, 18 Pick. 397; Brewer v. Hardy, 22 Pick. 376. 
 
 Shapleigh v. Pilsbury, 1 Me. 271; Wyman v. Brown, 50 Me. 150; 
 Jordan r. Stevens, 51 Me. 79; Drown v. Smith, 52 Me. 141; Jackson v, 
 Swart, 20 Johns. 87; Jackson t?. McKenny, 3 Wend. 235; Hayes r. Ker- 
 shaw, 1 Sandf. Ch. 267; Bank v. Housman, 6 Paige 526; Rogers v. 
 Eagle Fire Ins. Co., 9 Wend. 611; Trafton t>. Hawes, 102 Mass. 533. 
 See also Mellichanip v. Mellichamp, 28 S. C. 125; Watson r. Cressy 
 (Me.), 10 Atl. Rep. 59; Seals v. Pierce, 83 Ga. 587. 
 
 2 Bla. Com. 337. 
 
 771
 
 545 PRIVATE GRANT. [PART III. 
 
 the most effective of the conveyances under the Statute of 
 Uses, and in England it superseded to a large extent both the 
 covenant to stand seised and bargain and sale deeds. 
 
 The possession, acquired by the bargain and sale lease, is 
 only such a constructive possession which is sufficient to 
 support the release, and does not give to the lessee the right 
 to maintain actions in respect to the possession until he has 
 gained actual possession by entry. 7 Both the lease and the 
 release are common-law conveyances, but the lease, operating 
 as a common-law conveyance, vests in the lessee before entry 
 only an interesse termini, and not an estate. It must operate 
 as the limitation of a use under the Statute of Uses, in order 
 to give the lessee an estate with constructive possession. The 
 release itself is a common-law conveyance, and operates as 
 such in this connection. In England it had to operate as a 
 common-law conveyance to do without enrollment. But in 
 this country it may operate just as well as the limitation of 
 a future use as a release- of a future legal estate. 8 
 
 (c.) MODERN CONVEYANCES. 
 
 545. What conveyances judicially recognized. Although 
 there is an almost infinite variance to be found in the rules 
 of conveyancing in the different States of the Country, it is 
 believed that all the modes of conveyancing, which were rec- 
 ognized by the English common law, heretofore discussed, 
 and those which operated under the Statute of Uses are 
 recognized as valid and effective to pass the legal title. In 
 New York deeds of feoff ment with livery of seisin are ex- 
 pressly abolished by statute, 9 while in other States they remain 
 as a valid, though somewhat obsolete, conveyance. In most 
 of these States, in order that a deed of feoff ment may take 
 effect as such, it must still be accompanied by the ceremonial 
 livery of seisin. But in several of the States, notably Massa- 
 
 7 3 Washburn on Real Prop. 356. 
 3 Washburn on Real Prop. 355. 
 1 Rev. Stat. N. Y. 738. 
 772
 
 CH. XXII.] PRIVATE GRANT. 546 
 
 chusetts, Maine, Mississippi, Pennsylvania, Missouri, Connecti- 
 cut and Rhode Island, the recording and delivery of a deed of 
 feoffment is equivalent to the actual livery of seisin, and dis- 
 penses with it. 10 The conveyances under the Statute of Uses 
 are also recognized,, and in Arkansas, Connecticut, Delaware, 
 Florida, Georgia, Illinois, Indiana, Kentucky, Maryland, 
 Michigan, Minnesota, Mississippi, Missouri, .New Hampshire, 
 New Jersey, Pennsylvania, Vermont and Virginia, the deed in 
 general use is substantially a bargain and sale. 11 In no State 
 is it thought impossible to make a valid conveyance by deed 
 operating under the Statute of Uses. 12 
 
 546. Statutory forms of conveyance. But in addition to 
 the forms of conveyance already discussed, there are found in 
 some of the States others which are prescribed by statute and 
 made effectual to pass the legal title. Such forms are to be 
 found in New Hampshire, South Carolina, Pennsylvania, New 
 York, Iowa, Maryland and Tennessee. The use of these forms, 
 however, is not made obligatory. The statute is construed to 
 be directory, and does not invalidate the other modes of con- 
 veyance which were previously in use. A bargain and sale 
 or a feoffment would be just as effectual now as formerly. 13 
 In New York, as previously stated, feoff men ts have been abol- 
 ished, and all conveyances, whether they are in form a feoff- 
 ment or a deed under the Statute of Uses, are by statute 
 made to operate as, and are called, grants. 14 And in Georgia 
 a statute provides that any deed which clearly shows the 
 
 10 Pray V. Pierce, 7 Mass. 381 ; Russell V. Coffin, 8 Pick. 143 ; Barrett 
 v. French, 1 Conn. 354; Caldwell v. Fulton, 31 Pa. St. 483; Wyman v. 
 Brown, 50 Me. 160; Williamson v. Carleton, 51 Me. 462; Poe v. Domec v 
 48 Mo. 481. 
 
 11 2 Wsishburn on Real Prop. 452. 
 
 izQivan v. Doe, 7 Blackf. 212; Funk v. Creswell, 5 Iowa 08; Brewer 
 v. Hardy, 22 Pick. 376; Duval v. Bibb, 3 Call. 362; Rogers v. Eagle 
 Fire Ins. Co., 9 Wend. 611. 
 
 133 Washburn on Real Prop. 360; Redfern v. Middleton, Rice 464; 2 
 Washburn on Real Prop. 447; Miller v. Miller, Meigs. 484. 
 
 i* 1 Rev. Stat. N. Y. 738 
 
 773
 
 C17 PRIVATE GRANT. [PART III. 
 
 intention of the party to convey the title to lands, shall be 
 effectual for that purpose. No form is prescribed, and no 
 want of form will invalidate the transaction. 16 
 
 547. Quit-claim deed. Although a deed of release is a 
 secondary conveyance and is only effectual in conveying a 
 reversionary or equitable interest to one already possessed of 
 an estate in possession, a form of deed similar to the release, 
 and known as a quit-claim deed, has met with general recogni- 
 tion in this country, and has, in some of the States, been 
 expressly recognized by statute. 19 In Kentucky release is, by 
 statute, made a primary conveyance. 17 But a quit-claim deed 
 only passes that interest which the grantor has at the time 
 of conveyance, and the grantee under it has not the equities 
 of a bona-fide purchaser. If the title should fail there is no 
 remedy against the grantor, for a quit-claim deed contains no 
 covenants of title 18 It is, however, possible for a deed in 
 the form of a quit-claim deed, to contain covenants of title. 
 But such deeds are not technical quit-claim deeds. 19 And 
 should the grantor subsequently acquire the title, no estoppel 
 arises against him in favor of the grantee, to prevent his 
 enforcement of the title. 20 Quit-claim deeds contain, usually, 
 as their operative words, "remise, release, and forever quit- 
 claim," but the form may be varied. And where there are 
 
 is 3 Washburn on Real Prop. 361. See also Kennedy v. Moness (N. C. 
 1905), 50 S. E. Rep. 450. 
 
 i It is so recognized in Minnesota, Maine, Mississippi, Massachu- 
 setts, and Illinois; 3 Washburn on Real Prop. 359, notes. See also, 
 Brown V. Jackson, 3 Wheat. 452; Jackson v. Bradford, 4 Wend. 619; 
 Jackson V. Hubble, 1 Cow. 613; Dart v. Dart, 7 Conn. 255; Hall V. 
 Ashby, 9 Ohio 96; Hamilton r. Doolittle, 37 111. 482; Kerr v. Freeman, 
 33 Miss. 292; Carpentier r. Williamson, 25 Cal. 168. 
 
 IT 3 Washburn on Real Prop. 360. 
 
 is May v. LeClair, 11 Wall. 232; Kyle v. Kavanagh, 103 Mass. 356; 
 Thorp v. Keokuk Coal Co., 48 N. Y. 253; Sherwood v. Barlow, 19 Conn. 
 471. 
 
 is See Whaley v. Cavanaugh, 88 Cal. 132. 
 
 20 Bruce v. Luke, 9 Kan. 201, 12 Am. Rep. 491; Price v. King, 44 
 Kans. 639. 
 774
 
 CH. XXII.] PRIVATE GRANT. 548 
 
 no technical words of sale and conveyance, the quit-claim deed 
 has been held effectual to pass the title, provided words of 
 transfer, or words evidencing the intention to transfer, are 
 present. 21 Quit-claim deeds are practically nothing more than 
 deeds without covenants of title, and they will operate as 
 primary or secondary conveyances, according to the circum- 
 stances of the parties in respect to the land, at least in those 
 States where the quit-claim deed is recognized as a primary 
 conveyance. Deeds in the form of a quit-claim deed, may 
 contain covenants of title, and in such cases there is very little 
 doubt that the parties intended them to operate as primary 
 conveyances. 22 
 
 548. Dual character of common conveyances. The char- 
 acter of the conveyance is in the first instance determined by 
 the operative words of conveyance appearing in the deed. 
 The forms of expression, characteristic of the various modes 
 of conveyance, have been given in connection with the descrip- 
 tion of them. The ordinary deed, usually found in general 
 use in the United States, contains the operative words, "give, 
 grant, bargain and sell." "Give and grant," do et concede, 
 were used in the deed of feoffment and grant, and are com- 
 mon-law words of conveyance. "Bargain and sell," as has 
 already been explained, are the operative words of bargain 
 and sale deeds. By a course'of judicial legislation, going far 
 back into the common law of Lord Coke's day, in order to 
 effectuate the intention of the parties, when clearly manifested, 
 a deed has been held to operate as that mode of conveyance 
 which best carries out the intention of the parties, provided 
 there are sufficient operative words to bring the deed within 
 that class of conveyances. Where, therefore, a deed contains 
 the words "give, grant, bargain and sell," it may operate 
 either as a bargain and sale under the Statute of Uses, or as 
 
 21 Fash v. Blake, 38 111. 367; Johnson v. Boutock, 38 111. 114; Wilson 
 f. Albert, 89 Mo. 537, 1 S. \V. Rep. 209. 
 
 22 See Whaley v. Cavanaugh, 88 Cal. 132. See Denver v. Denver (N. 
 C. 1904), 49 S. E. Rep. 113. 
 
 775
 
 548 PRIVATE GRANT. [PART III. 
 
 a feoffment at common law, if there is livery of seisin, or 
 if livery is dispensed with by statute or by judicial legisla- 
 tion ; 23 or further, it may operate as the modern statutory con- 
 veyance, provided the operative words are the same as 
 prescribed by the statute. 24 In most of the cases arising 
 under this rule of construction the deed is inoperative as 
 one mode of conveyance, on account of some defect in the 
 execution, or in the nature of the grant, and complies with 
 the requirements of some other mode of conveyance. Thus 
 a deed of release will take effect as a covenant to stand seised, 
 if there is a limitation of a future freehold estate which 
 cannot be created by a common-law conveyance. 25 So also will 
 release be treated as a bargain and sale, where it would be 
 invalid as a release, because it is made to a party not in 
 possession of the land. The words of release raise a use in 
 favor of the releasee. 28 A use may be raised by any words 
 showing the intention to convey a title. In a case in Vir- 
 ginia the words of conveyance were ' ' give, grant, and deliver, ' ' 
 and the court held it to be a good bargain and sale. 27 It 
 is also a well established rule that deeds operating under the 
 Statute of Uses will be treated as bargains and sales, or as 
 covenants to stand seised whatever may be the words of con- 
 veyance, according to the consideration present to support 
 the conveyance. If it is a good consideration it will be a 
 covenant to stand seised, and a bargain and sale if the con- 
 sideration is valuable. 28 So also, if the operative words are 
 "give, grant, bargain, and sell," and the like, will the deed 
 
 23 See ante, Sec. 545. 
 
 243 Washburn on Real Prop. 357; Sheppard Com. Assur. 82, 83. 
 
 25 Roe V. Tranmarr, 7 Willis 682 ; s. o. 2 Smith's Ld. Cas. 288 ; Smith 
 r. Frederick, 1 Russ. 210; Haggerston t?. Hanbury, 5 B. & C. 101; Gib- 
 son r. Minet, 1 H. Bl. 569; s. c. 3 T. R. 481. 
 
 26 Pray v. Pierce, 7 Mass. 381; Marshall V. Fisk, 6 Mass. 24; Russell 
 r. Coffin, 8 Pick. 143 ; Jackson v. Beach, 1 Johns. Cas. 401 ; Havens v. 
 Seashore Land Co. (Ind.), 20 Atl. Rep. 497. See Cassady v. Stoble, 90 
 N. Y. S. 533. 
 
 27 Rowletts V. Daniel, 4 Munf. 473 ; Tabb. v. Baird, 3 Call. 475. 
 
 28 Cox v. Edwards, 14 Mass. 492; Brewer V. Hardy, 22 Pick. 376; 
 
 776
 
 CH. XXII.] PRIVATE GRANT. 548 
 
 be treated as a common-law conveyance if it cannot operate as 
 a bargain and sale, or a covenant to stand seised, for the want 
 of a good or a valuable consideration. 29 And where there is 
 a grant in such a deed to A. to the use of B., since the 
 policy of the courts of this country is to execute all uses, 
 and vest the legal title in the cestui que use whenever it is 
 possible, the deed will be treated as a common-law conveyance, 
 since such a limitation in a bargain and sale would create a 
 use upon a use, which cannot be executed. 30 That a bargain 
 and sale to A. to the use of B. raises a use upon a use, and 
 gives the legal title to A. under the Statute of Uses, is the 
 settled rule of the courts of those States where the doctrine of 
 ulterior uses, or use upon a use, has not been abolished by 
 statute. 31 A deed may also as to one limitation operate as a 
 common-law conveyance, while it may be treated as a convey- 
 ance under the Statute of Uses in respect to another limita- 
 tion, if such a construction is necessary to carry out the in- 
 tention of the parties. 32 But when it is desired that a deed 
 should operate as a particular mode of conveyance it must 
 possess all the requisites of that conveyance. And although by 
 this liberal and accommodating rule of construction it is not 
 likely for a common and ordinary rrant to be made, which will 
 not possess the requisite of some form of conveyance, and 
 which cannot take effect in consequence, yet it is possible, and 
 where the grant is so singularly defective it wil) of course, 
 be void and inoperative. 33 
 
 Trafton r. Hawes, 102 Mass. 533; Okison V. Patterson, 1 Watts & S. 
 395. 
 
 28 Emery v. Chase, 5 Me. 232; Adams v. Guerard, 29 Ga. 676; Cheney 
 V. Watkins, 1 Harr. & J. 527; Rowland V. Rowland, 93 N. C. 214. 
 
 so Thatcher r. Omans, 3 Pick. 522 ; Bacon V. Taylor, Kirby 368 ; Hunt 
 V. Hunt, 14 Pick. 374; Jackson V. Sebring, 16 Johns. 515; Sprague r. 
 Woods, 4 Watts & S. 194. See Linville v. Golding, 11 Ind. 374. 
 
 i See ante, Sec. 342. See R. P. Law N. Y. (1896), p. 570, construed, 
 In re DeRycks Will, 91 N. Y. S. 159. 
 
 82 Emery v. Chase, 5 Me. 232; Bryan v. Bradley, 16 Conn. 474. 
 
 as Emery . Chase, 5 Me. 232; Jackson v. Sebring, 16 Johns. 515; 
 Jackson v. Cadwell, 1 Cow. 622; Marshall v. Fisk, 6 Mass. 24; Carrol 
 
 777
 
 549 PRIVATE GRANT. [PART III. 
 
 549. Is a deed necessary to convey freeholds? By the 
 term "deed" is meant an instrument under seal. 114 The ques- 
 tion, therefore, which is mooted here is, whether a sealed in- 
 strument is necessary to convey the legal title to a freehold 
 estate. It has been so long and so generally considered 
 indispensable, unless abolished by statute, that although irre- 
 sistibly driven to the conclusion, it was with some hesitation 
 that the contrary position, with qualifications, has been here 
 assumed. The position is, that for the conveyance of a legal 
 freehold estate in a corporeal hereditament, a sealed instru- 
 ment is not necessary, unless a statute expressly requires it. 
 There were two principal classes of conveyances in England, 
 ~viz. : common-law conveyances, operating by transmutation of 
 possession, and conveyances under the Statute of Uses. The" 
 principal common-law conveyances, and those which concern 
 us in the present discussion, were "feoffment" and "grant." 
 Grant was used to convey incorporeal hereditaments and 
 reversionary interests in corporeal hereditaments, and required 
 a sealed instrument. 36 Feoffment was used to convey 
 corporeal freeholds in possession, and consisted of the cere- 
 monial livery of seisin. No deed, or any other writing was 
 required, although it was customary to employ a deed, where 
 the limitations were numerous and intricate. 36 In respect to 
 the conveyances under the Statute of Uses, it is a well- 
 known fact that uses before the Statute of Frauds could be 
 created in corporeal hereditaments by an oral declaration 
 which would be executed by the Statute of Uses into a legal 
 
 V. Norwood, 5 Harr. & J. 155; Den v. Hanks, 5 Ired. 30; Foster r. 
 Dennison, 9 Ohio 121. In Den v. Hanks, supra, the deed could not 
 operate as a bargain and sale, because no consideration was expressed 
 or proved. It could not take effect as a covenant to stand seised, for 
 there was no blood relationship between the parties to import a good 
 consideration, and it could not operate as a feoffment, because there 
 had been no livery of seisin. The deed was therefore declared void. 
 
 34 See post, Sees. 551, 572. 
 
 ss See ante, Sec. 537. 
 
 se See ante, Sec. 536; Williams on Real Prop. 147, 152. 
 778
 
 CH. XXII.] PRIVATE GRANT. 549 
 
 estate, if it was supported by a sufficient consideration, 37 
 except in one case, viz. : in the case of a bargain and sale. By 
 statute, 27 Hen. VIII, ch. 16, commonly called and known as 
 the Statute of Enrollment, it was enacted that no bargain and 
 sale shall have the effect of conveying the legal title to a 
 freehold estate, unless it is in writing, indented and sealed, 
 and enrolled in one of the King's courts at Westminster. 38 
 From this synoptical statement it is evident, therefore, that, 
 using the language of Mr. Washburn, "prior to the Statute 
 of Frauds in the time of Charles II, it did not require a 
 written instrument to convey corporeal hereditaments, except 
 as provided in the matter of deeds of bargain and sale. 39 
 But it was at an early day held impossible to create a use in 
 any incorporeal hereditament, such as rents which required 
 a deed at common law, unless it was declared by deed. 40 
 Now the Statute of Frauds only required an instrument in 
 writing, signed by the grantor, and did not require it to be 
 sealed. After the passage of the Statute of Frauds, there- 
 fore, except as to bargains and sales and grants, 41 a deed was 
 not required to make an effectual conveyance. Feoffments 
 could be made by a simple instrument in writing, and it would 
 seem that a covenant to stand seised did not actually require 
 a seal, although a covenant is a sealed instrument; for it is 
 stated unqualifiedly by the old authorities that, for the 
 
 37 See ante, Sees. 330, 540. The Statute of Uses expressly states this 
 to be the case. The statute enacts that " where any person stood or 
 were seised ... in any honours, castles, lands, etc., to use, etc., 
 of any other person, etc., by reason of any bargain, sale, feoffment, 
 ; . . covenant, contract, agreement, will, or otherwise," etc. See 
 ante, Sec. 338, note. 
 
 ss 3 Washburn on Real Prop. 421. 
 
 s3 Washburn on Real Prop. 421, 422. 
 
 02 Washburn on Real Prop. 392; 2 Bla. Com. 331; 1 Spence Eq. Jur. 
 449. 
 
 It must not be understood that any reference is made here to the 
 common-law secondary conveyances, such as a release, exchange or sur- 
 render. These conveyances were all in the nature of a " grant," and 
 required a deed. See ante, Sees. 635, 539. 
 
 779
 
 549 PRIVATE GRANT. [PART HI. 
 
 creation of a use, an oral declaration was sufficient, but it 
 'required a valuable consideration to create a use in a stranger, 
 and a good consideration to vest it in a blood relation. 42 But 
 although a deed was not required before, or after, the Statute 
 of Frauds except in the case of grants and bargains and sales, 
 it was always customary to use them. In the early days of 
 the feudal system, the great lords and barons were ignorant 
 of the art of writing, and could not sign their names ; but they 
 all possessed seals, and when any important writing was 
 required to be executed, they sealed it with their own seals 
 instead of signing. 43 From the solemnity of the act of sealing, 
 a seal was, at an early day, held to import a consideration. If, 
 therefore, a sealed instrument was used in the declaration of 
 a use, no actual consideration was necessary to support the use, 
 if some sufficient consideration was acknowledged in the 
 deed. 44 But if it was an oral declaration, a consideration had 
 to be proved in order to raise a use. To avoid, therefore, the 
 necessity of a consideration, it. was the common custom to use 
 a sealed instrument. This was the state of the law in England 
 at the time of the American revolution. The next question is, 
 what is the condition of the law in America? It follows, as 
 a necessary consequence, that in those States which have 
 expressly or impliedly adopted the common law of England, 
 except so far as it is modified by statute, or repugnant to the 
 political institutions of this country, the law in respect to 
 the requirement of a sealed instrument to convey lands must 
 be the same, unless it has been changed by a local statute. The 
 only doubtful question involved in this conclusion is the 
 effect of the English Statute of Enrollment, upon the Ameri- 
 can law. It has been very generally held that this statute has 
 
 42 See 2 Washburn on Real Prop. 392, 394 ; 1 Spence Eq. Jur. 449, 
 450. The word " covenant " is also often used as synonymous with con- 
 tract or agreement. Thus we speak of covenants in leases, when usually 
 leases are not sealed. 
 
 4 Williams on Real Prop. 147; 2 Bla. Com. 305, 306; Hallam's Mid- 
 dle Age? 329. 
 
 ** See ante, Sec. 329, and post, Sec. 564. 
 780
 
 CH. XXII. J PRIVATE GRANT. 549 
 
 never been recognized by the American courts as a part of 
 the common law. 45 But the cases cited in the note only 
 involved the question as to the necessity of an enrollment, and 
 did not involve a discussion as to the applicability of the 
 statute, so far as it requires a deed to create a use by 
 bargain and sale. The natural presumption would be, that a 
 statute could not be recognized in part, and denied to be in 
 force as to its other requirements, particularly where the 
 provision, supposed to be recognized, is only auxiliary to the 
 main object and purpose of the statute. The conclusion, 
 therefore, is, that unless the Statute of Enrollment is in force 
 in this country, or unless there is a State statute, requiring 
 a use or trust to be created by deed in order that it may be 
 executed by the Statute of Uses into a legal estate, the ordi- 
 nary deed in common use will be effectual to pass the legal title 
 to any freehold in a corporeal hereditament, without being 
 sealed, if an actual consideration is proved to have passed 
 from the grantee to the grantor. 40 And, furthermore, if in 
 any State the ordinary conveyance can operate as a feoffment, 
 and the State statutes do not expressly require a sealed instru- 
 ment, the conveyance will be a good feoffment without being 
 sealed, and without the acknowledgment or proof of a con- 
 sideration, if the conveyance expressly declares to whose use 
 the lands shall be held. 47 
 
 4s Rogers v. Eagle Fire Ins. Co., 9 Wend. 611; Jackson v. Wood, 12 
 Johns. 74; Jackson v. Dunsbagh, 1 Johns. 97; Givan v. Doe, 7 Blackf. 
 210; Report of Judges, 3 Binn. 156. 
 
 48 The author has had neither time nor space to ascertain and state 
 the exact law on this subject in any particular State. He has con- 
 tented himself with the general statement of a somewhat abstract rule, 
 and leaves the continuation of the investigation to the reader. One 
 other observation may perhaps b,j necessary; and that is, that where 
 a statute prescribes a form of conveyance, and requires a seal in exe- 
 cuting it, it does not invalidate the other modes of conveyance, which 
 were previously in use, unless they are expressly repealed (see ante, 
 Sec. 546) ; and the requirement of a seal in the statutory conveyance 
 will not by implication make a seal necessary in the other forms of 
 conveyance. 
 
 * 7 See Sees. 329, 565. The omission of a seal has been held not to 
 
 781
 
 549 PRIVATE GRANT. [PART III. 
 
 effect the validity of the instrument, in the following rnsps. Laughlin v. 
 Kieper (Wis. 1905), 103 N. W. Rep. 264; Burknmp r. Healey (Ky. 
 1903), 72 S. W. Rep. 759. "A seal is unnecessary to a lease, and if 
 placed thereon does not raise the same above the dignity of any non- 
 specialty written contract." Woolsey v. Henke (Wis. 1905), 103 N. W. 
 Rep. 267. 
 
 782
 
 CHAPTER XXIII. 
 
 DEEDS THEIR REQUIREMENTS AND COMPONENT PARTS. 
 
 SECTION I. The requisites of a deed. 
 
 II. The component parts of a deed. 
 III. Covenants in deeds. 
 
 SECTION I. 
 
 THE REQUISITES OF A DEED. 
 
 SECTION 550. Definition of a deed. 
 
 551. Requisites, what they are. 
 
 552. A sufficient writing, what constitutes. 
 
 553. A sufficient writing, what constitutes Continued. 
 
 554. Alterations and interlineations. 
 
 555. Proper parties The grantor. 
 
 556. Infants and insane persons. 
 
 557. Ratification and disaffirmance. 
 
 558. Deeds of married women. 
 
 559. A disseisee cannot convey. 
 
 560. Fraud and duress. 
 
 561. Proper parties Grantees. 
 
 562. Proper parties named in the deed. 
 
 563. A thing to be granted. 
 
 564. A thing to be granted Continued. 
 
 565. The consideration. 
 
 566. Voluntary and fraudulent conveyances. 
 
 567. Operative words of conveyance. 
 
 568. Execution, what constitutes. 
 
 569. Power of attorney. 
 
 570. Power of attorney granted by married woman. 
 
 571. Signing. 
 
 572. Sealing. 
 
 573. Attestation. 
 
 574. Acknowledgment or probate. 
 
 575. Reading of the deed, when necessary. 
 
 576. Delivery and acceptance. 
 
 783
 
 552 REQUISITES OP A DEED. [PART III. 
 
 577. What constitutes a sufficient delivery. 
 
 578. Delivery to stranger When grantee's assent presumed. 
 
 579. Escrows. 
 
 580. Registration of deeds. 
 
 581. Requisites of a proper record. 
 
 582. To whom is record constructive notice. 
 
 583. Priority of unrecorded mortgages over judgments. 
 
 584. Of what is record constructive notice. 
 
 585. From what time priority takes effect. 
 
 586. What constitutes notice of title? 
 
 550. Definition of a deed. A deed, as defined by Lord 
 Coke, is a writing sealed and delivered by the party thereto, 
 and contains a contract, executory or executed. According 
 to the common-law, before the passage of the Statute of 
 Frauds, signing was unnecessary. It is now, however, an 
 important act, and in most, if not all, of the United States, it 
 is absolutely necessary to the validity of the deed. 1 In dis- 
 cussing what constitutes a deed, its requirements will be 
 considered first, and then the component parts, in an orderly 
 arrangement. 
 
 551. Requisites, what they are. The following may be 
 stated as including all the essentials of a deed, viz. : ( 1 ) a 
 sufficient writing; (2) proper parties, grantor and grantee; 
 (3) a thing to be granted ; (4) a consideration ; (5) execution, 
 i. e., signing, sealing, attestation, and acknowledgment; (6) 
 delivery and acceptance; (7) registration. These will be 
 considered in their regular order. 
 
 552. A sufficient writing, what constitutes. Without 
 meeting with any positive adjudication, it seems to be the 
 accepted opinion of all the courts and treatise-writers that to 
 make a valid deed it must be written on parchment or paper, 
 it being supposed that these two materials are more durable, 
 
 13 Washburn on Real Prop. 239; Co. Lit. 171 b; Van Santwood v. 
 Sandford, 12 Johns. 198; Hutchins v. Byrnes, 9 Gray 367; Taylor v. 
 Morton, 5 Dana 365 ; Hammond i: Alexander, 1 Bibb 333. 
 784
 
 CH. XXIII.] REQUISITES OF A DEED. 553 
 
 and less capable of erasure or alteration. 2 This objection goes 
 more to the inadvisability of useing other materials, from the 
 individual standpoint of the parties, rather than to establish a 
 ground for holding the deed to be .otherwise invalid. There 
 can be no objection in principle to a deed written on cloth or 
 on unprepared skins of animals, as long as the writing remains 
 unobliterated. And the reason fails altogether if the writing 
 is carved on stone or engraved on metal. The writing must 
 clearly manifest the intention of the parties, and contain the 
 entire agreement. If any uncertainty, either as to the par- 
 ties or the subject-matter, appears on the face of the deed, 
 and cannot be explained away by a reference to other parts 
 of the same deed, or by some other deed expressly referred 
 to, parol evidence will not be admitted for that purpose, and 
 the deed will be void for the want of certainty. 3 But it is 
 not necessary to the validity of the deed that there should be 
 a strict observance of the rules of grammar or rhetoric; as 
 long as the intention and meaning of the parties can be 
 gathered from the instrument, the law does not require ac- 
 curacy or precision of language. 4 
 
 553. A sufficient writing, what constitutes Continued. 
 But in order that a deed may be valid as a conveyance, the 
 writing must be completed in all its essential parts before it 
 is delivered. Any alteration or filling up of blanks after 
 delivery will not give life to the deed. 5 But though there is 
 
 23 Washburn on Real Prop. 240; Co. Lit. 35 b; 2 Bla. Com. 297; 
 Warren v. Lynch, 5 Johns. 240. 
 
 33 Washburn on Real Prop. 266; Boardman f. Reed, 6 Pet. 345; 
 Deery v. Cray, 10 Wall. 270; Peck v. Mallams, 10 N. Y. 630; Andrews 
 v. Todd, 50 N. H. 565; Hill v. Mowry, 6 Gray 551; Fenwick v. Floyd, 
 1 Har. & G. 172; Thomas v. Turney, 76. 437. 
 
 3 Washburn on Real Prop. 240 ; Shrewsbury's Case, 9 Rep. 48 ; 
 Walters v. Bredin, 70 Pa. St. 237; Moorehead v. Scovill (Pa. 1904), 60 
 All. Rep. 13. 
 
 3 Washburn on Real Prop. 240; Burns v. Lynde, 6 Allen 305; Dun- 
 can ~v. Hodges, 4 McCord 239; Perminter v. McDaniel, 1 Hill (S. C.) 
 267. 
 
 60 785
 
 553 REQUISITES OF A DEED. [PART III. 
 
 110 variance among the decisions in respect to the correctness 
 of this position, that the deed must be completed before it is 
 delivered to the grantee in order to be valid, it is impossible 
 to reconcile the authorities upon the question, whether the 
 delivery after its completion may not be made by an agent 
 under a parol authority. In the early case of Texira v. 
 Evans, it was held that a bond which was signed by the 
 obligor, but in which the sum was left blank, and was after- 
 wards filled in by an agent and by him delivered to the 
 obligee according to the parol authority of his principal, was 
 good and binding upon the parties. This case has been often 
 commented upon, and in the cases, cited in the note below, 
 repudiated, and the contrary doctrine established that the 
 deed must be completed before it leaves the hands of the 
 grantor, or there must be a second delivery by him. An agent 
 cannot deliver it, unless he obtains his authority from a power 
 of attorney under seal. 7 On the other hand, the " principle 
 has been sustained by the courts of some of the States. 8 The 
 weight of authority in this country is certainly in favor of 
 the position that a second delivery is necessary, although the 
 better opinion would seem to be that the completion and 
 delivery of the deed may be done by an agent as effectively as 
 by the principal. This rule would give ample security to 
 the grantor against any fraudulent transactions, while it 
 would make the title of the grantee more secure. 
 
 e 1 Anstr. 228. 
 
 7 Hibblewhite v. McMorine, 6 Mees. & W. 200 ; Davidson V. Cooper, 
 11 M. & W. 794; Drury v. Foster, 2 Wall. 24; Basford V. Pearson, 9 
 Allen 388; Vose v. Dolan, 108 Mass. 159; Viser v. Rice, 33 Texas 130; 
 Cummings v. Cassily, 5 B. Mon. 74; Conover v. Porter, 14 Ohio 450; 
 Simms v. Harvey, 19 Iowa 290; People V. Organ, 27 111. 29; Upton V. 
 Archer, 41 Cal. 85; Hammerslough v. Cheatham, 84 Mo. 13; De Argu- 
 ello v. Bours, 67 Cal. 447; Vaca Val., etc., R. R. Co. v. Mansfield, 84 
 Cal. 560, 24 Pac. Rep. 145. See also, Bullin v. Hancock (N. C. 1905), 
 50 S. E. Rep. 621. 
 
 s Inhabitants, etc., v. Huntress, 53 Me. 90; McDonald v. Eggleston, 
 26 Vt. 161; Van Etta v. Evanson, 28 Wis. 33; Devin v. Himer, 29 
 Iowa 301 ; Phelps v. Sullivan, 140 Mass. 36, 54 Am. Rep. 442 ; State V. 
 786
 
 CH. XXIII. ]j REQUISITES OF A DEED. 554 
 
 554. Alterations and interlineations. It is also an im- 
 portant question how far alterations and interlineations may 
 be made in a deed without affecting its validity. Lord Coke 
 states that in ancient times an erasure or interlineation would 
 invalidate the deed at whatever time it was made. 9 But now, 
 as it was even in the days of Coke, erasures and interlinea- 
 tions do not invalidate the deed. But in order that the deed 
 may take effect as modified by the interlineation or erasure, 
 the alteration must have been made before the delivery of 
 the deed. 10 It has been held that it may be made after ac- 
 knowledgment ; but if the alteration enlarges the scope of the 
 conveyance there must be a new acknowledgment. 11 It is, 
 however, doubtful upon whom the burden lies, to prove that 
 the alteration was made before delivery. "Where the alteration 
 is in an unimportant part of the deed the question does not be- 
 come important. But if the change is made in an essential 
 part, some of the authorities treat the erasure or interlineation 
 as extremely suspicious, and throw the burden of proof upon 
 the grantee. The presumption of law, according to these au- 
 thorities, is that it was made after delivery. 12 The courts of 
 Massachusetts and other States deny that there is any 
 presumption of law in respect to the matter, but hold that 
 the burden of proof is thrown upon the party relying upon 
 the deed. 13 The following quotation from the court of Mis- 
 souri may, perhaps, furnish the correct rule: "As a general 
 rule, if any presumption at all is indulged, the law will 
 
 Matthews, 44 Kan. 596. See, as to delivery through third party, Black- 
 ford v. Almstead (Mich. 1905), 104 N. W. Rep. 47. 
 
 Co. Lit. 225 b. 
 
 103 Washburn on Real Prop. 244; Jordan v. Stevens, 51 Me. 78; Bas- 
 sett v. Bassett, 55 Me. 126; Gordon v. Sizer, 39 Miss. 818. 
 
 11 Webb. v. Mullins, 78 Ala. 111. 
 
 "United States v. Linn, 1 How. 104; Clifford v. Parker, 2 Mann. & 
 G. 909; Morris v. Venderen, 1 Dall. 67; 1 Greenl. on Ev., Sec. 564; 
 Galland f. Jackman, 26 Cal. 85. 
 
 is Ely v. Ely, 6 Gray 439; Wilde v. Armsby, 6 Cush. 314; Knight v. 
 Clements, 8 A. & E. 215; Jackson v. Osborn, 2 Wend. 555; Herrick v. 
 Malin, 22 Wend. 388; Comstock V. Smith, 26 Mich. 306. See, also ; 
 
 787
 
 555 REQUISITES OF A DEED. 
 
 presume that the alteration was made before, or at least con- 
 temporaneous with, the signing of the writing, unless peculiar 
 circumstances are patent upon its face; and even then the 
 whole question is one for the jury to settle upon the facts, 
 when and where, and with what intent, the alteration was 
 made." 14 The safer plan, and the one adopted by all careful 
 conveyancers, when alteration in the body of the deed are 
 necessary is to note the erasure or interlineation upon the in- 
 strument, and generally above the attestation clause, to show 
 that it was made before the delivery. But no subsequent 
 alteration of the deed, not even its destruction, can have any 
 effect upon the title which has been passed by the deed, 15 
 although it would be fatal to any action upon the covenants in 
 the deed if the deed is fraudulently destroyed or a material 
 alteration is made in the covenant. 10 But if a deed is 
 destroyed without the fault of the grantee, he may resort to 
 equity to compel the grantor to give him a new deed, 17 or 
 the contents may be proved by parol evidence, after the loss 
 of the deed has been established. 18 
 
 555. Proper parties The grantor. It needs only to be 
 stated, to receive immediate recognition, that to make a valid 
 
 Messi v. Frechede (La. 1904), 37 So. Rep. 600; Gaskins v. Allen (N. C. 
 1905), 49 S. E. Rep. 919. 
 
 14 McCormick v. Fitzmorris, 39 Mo. 34 ; Matthews v. Coalter, 9 Mo. 
 705. See, also, Gunkle V. Seiberth (Ky. 1905), 85 S. W. Rep. 733. 
 
 "Davis v. Cooper, 11 Mees. & W. 800; Bolton V. Carlisle, 2 H. Bl. 
 263; Roe r. York, 6 East 86; Chessman V. Whittemore, 23 Pick. 231; 
 Lewis r. Payne, 8 Cow. 71; Jackson v. Chase, 2 Johns. 84; Raynor r. 
 Wilson, 6 Hill 469; Rifener v. Bowman, 53 Pa. St. 318; Wood V. Hilder- 
 brand, 46 Mo. 284. 
 
 is Davidson r. Cooper, 11 Mees. & W. 800; Deem v. Phillips, 5 W. Va. 
 168; Woods v. Hilderbrand, 46 Mo. 284. As where the word "Trus- 
 tee," after the grantee's name, is erased. Flitcaft V. Title & Tr. Co. 
 (Pa. 1905), 211 Pa. 114, 60 Atl. Rep. 557. 
 
 " King v. Gilson, 32 111. 354. 
 
 is Wallace v, Harmstad, 44 Pa. St. 492; Shaumberg v. Wright, 39 
 Mo. 125. 
 
 788
 
 CH. XXIII.] REQUISITES OP A DEED. 556 
 
 deed there must be a competent grantor. He must own the 
 property, and have the capacity to convey. The number of 
 persons who are in this respect under disability is very small, 
 and may all be included in the classes known as infants, non 
 compotes mentis, and married women. The disabilities resting 
 upon these persons are not uniform in their extent, and vary 
 in reference to each class. In respect to some the deeds are 
 absolutely void, while as to others they are only voidable. 
 They will be discussed separately. 
 
 556. Infants and insane persons. As a general propo- 
 sition, it may be stated that the deeds of infants 19 and 
 lunatics 20 are placed in respect to their validity on the same 
 basis, and are held to be voidable and not void. But if 
 the insane person is under guardianship, the deed will be 
 absolutely void ; 21 while in New York and Pennsylvania 
 
 i Tucker f. Moreland, 10 Peters 58; Phillips r. Green, 3 Marsh. A. 
 K. 7, 13 A. M. Dec. 124; Roof v. Stafford, 7 Cowen 180; Moore v. 
 Abernathy, 7 Blackf. 442; Kendall v. Lawrence, 22 Pick. 540. 543; 
 Jenkins r. Jenkins, 12 Iowa 195, 198; Breckenridge V. Ormby, 1 Marsh. 
 J. J. 245, 19 Am. Dec. 71; Cook v. Toumbs, 36 Miss. 685; Slaughter v. 
 Cunningham, 24 Ala. 260, 60 Am. Dec. 463; Zouch v. Parsons, 3 Burr 
 1794, 1805; Boston Bank v. Chamberlin, 15 Mass. 211. 
 
 20 Riggan v. Green, 80 N. C. 236 ; Breckenridge v. Ormsby, 1 Marsh. 
 J. J. 236, 19 Am. Dec. 71; Freed f. Brown, 55 Ind. 310; Jackson V. 
 Gumaer, 2 Cowan 552; Desilver's Est., 5 Rawle 111, 28 Am. Dec. 
 645; Bensell f. Chancellor, 5 Whart. 376, 34 Am. Dec. 561; Seaver r. 
 Phelps, 11 Pick. 304, 22 Am. Dec. 372; Thomas V. Hatch, 3 Sum. 170; 
 Eaton v. Eaton, 8 Vroom. 103; Summers V. Pumphrey, 24 Ind. 231; 
 Tucker v. Moreland, 10 Peters 58. But see Van Dusen v. Sweet, 51 N. 
 Y. 378, 383. 
 
 21 Wait v. Maxwell, 5 Pick. 217; Griswold v. Butler, 3 Conn. 231; 
 Pearl r. McDowell, 3 J. J. Marsh. 658; Wait v. Maxwell, 5 Pick. 217, 
 16 Am. Dec. 391; Fitzhugh V. Wilcox, 12 Barb. 235; Mohr. v. Tulip, 40 
 Wis. 66; Hovey v. Hobsen, 53 Me. 451; Elston v. Jasper, 45 Texas 
 409; Van Dusen v. Sweet, 51 N. Y. 378; Nichol v. Thomas, 53 Ind. 42; 
 Leonard v. Leonard, 14 Pick. 280; Rogers v. Walker, 6 Pa. St. 371, 47 
 Am. Dec. 470. But see Hunt v. Hunt, 2 Beasl. 161. See Keely 0. 
 Moore, 196 U. S. 38, 49 L. Ed. 232. "A deed executed by a person 
 of unsound mind is voidable only." Logan f. Vanarsdall (Ky. 1905), 
 
 789
 
 556 REQUISITES OF A DEED. [PART HI. 
 
 the deed of an insane person seems under all circumstances 
 to be void. 22 But it is often difficult to determine what de- 
 gree of sanity is sufficient to enable a person to make a good 
 and valid deed. The question is no doubt one of fact, 
 whether the person has sufficient strength of mind to under- 
 stand the nature and consequences of the act of conveyance. 
 The fact that his mental powers have been impaired will not 
 invalidate the deed, provided they have not been so far af- 
 fected as to make him incapable to transact business, and to 
 protect his interests to a reasonable degree. 23 But deeds of 
 both infants and lunatics may be made valid by a subsequent 
 ratification; in the case of infants after coming of age, and 
 with lunatics after the mental disturbance has passed away. 
 The deed may be avoided only by the infant or lunatic, or by 
 his guardian, personal representative or heirs. 24 In order to 
 
 86 S. W. Rep. 981. See also, McPeck's Heirs v. Graham's Heirs (W. 
 Va. 1904), 49 S. E. Rep. 125. 
 
 22 Van Deusen v. Sweet, 51 N. Y. 384; Matter of Desilver, 5 Rawle 
 111. But see Roof v. Stafford, 7 Cow. 180; Bool V. Mix, 17 Wend. 119; 
 Ingraham v. Baldwin, 9 N. Y. 45. 
 
 23 Dennett v. Dennett, 44 N. H. 538 ; Doe v. Prettyman, 1 Houst. 339 ; 
 In re Barker, 2 Johns. Ch. 232; Dennett v. Dennett, 44 N. H. 531. See 
 Northwestern Mut. Fire Ins. Co. v. Blankenship, 94 Ind. 535, 48 Am. 
 Rep. 185. See Hovey v. Hobson, 55 Me. 256; Osmond v. Fitzroy, 3 P. 
 Wms. 129; Carpenter v. Carpenter, 8 Bush 283; Shelford on Lun. 37; 
 Titcomb v. Vantyle, 84 111. 371; Odell v. Buck, 21 Wend. 142; Jackson 
 v. King, 4 Cowen 207, 15 Am. Dec. 354; Sprague V. Duel, 1 Clarke 90, 
 11 Paige 480; Kennedy v. Marrast, 46 Ala. 161; Jackson V. King, 4 
 Cowen 216, 15 Am. Dec. 354; Allore v. Jewell, 94 U. S. (4 Otto) 506, 
 510; Harding v. Hardy, 11 Wheat. 125; Kemson V. Ashbee, 10 Ch. Cas. 
 15; Keeley v. Moore, 196 U. S. 38. 
 
 24 Arnold v. Townsend, 14 Phila. 216; Campbell V. Kuhn, 45 Mich. 
 513; Cates v. Woodson, 2 Dana 452; Brown V. Freed, 43 Ind. 253; 
 Judge of Probate v. Stone, 44 N. H. 593; Brown V. Caldwell, 10 Serg. 
 & R. 114, 13 Am. Dec. 660; Hartness V. Thompson, 5 Johns. 160; Night- 
 ingale v. Withington, 15 Mass. 272, 7 Am. Dec. 101; Person v. Chase, 
 37 Vt. 647; Bozeman v. Browning, 31 Ark. 364; Veal v. Forbson, 57 
 Texas 482; Jones v. Butler, 30 Barb. 641; Tillinghast v. Holbrook, 7 R. 
 I. 230; Vaughan v. Parr, 20 Ark. 600; Gaskins v. Allen (N. C. 1905), 
 49 S. E. Rep. 919. 
 
 790
 
 CH. XXIII.] REQUISITES OF A DEED. 557 
 
 avoid a deed made by an infant or insane person it has been 
 held not to be necessary to restore the consideration. 25 But 
 if the infant or lunatic has bought property, and still has it 
 when the minority or lunacy terminates, the property must be 
 restored before he can disaffirm. 20 An infant cannot avoid 
 his deed while he is an infant, and a second deed during in- 
 fancy is no disaffirmance of the first. 27 
 
 557. Ratification and disaffirmance. What constitutes a 
 ratification or a disaffirmance is, perhaps, not easy of solution. 
 It is not necessary that the act of ratification should be as 
 formal as the ordinary release of an outstanding claim of 
 
 25 Kent's Com. 236; Hovey v. Hobson, 53 Me. 453; Gibson V. Soper, 
 6 Gray 279; Cresinger V. Welch, 15 Ohio 156; Kilbee v. Myrick, 12 
 Fla. 419. But see Thomas v. Hatch, 3 Sum. 170; Edgerton V. Wolf, 6 
 Gray, 456; Mustard v. Wohlford, 15 Gratt 329, 343; Bedinger v. Whar- 
 ton, 27 Gratt 857; Chandler V. Simmons, 97 Mass. 508; Price v. Fur- 
 man, 27 Vt. 268, 65 Am. Dec. 194; Dill v. Bowen, 54 Ind. 204; Man- 
 ning v. Johnson, 26 Ala. 446; Walsh v. Young, 110 Mass. 396, 399; 
 Stout t\ Merrill, 35 Iowa 47; Kerr v. Bell, 44 Mo. 120; Hillyer v. 
 Bennett, 3 Edw. Ch. 222; Rusk V. Fenton, 14 Bush 490; Addison V. 
 Dawson, 2 Vern. 678. And see Davis Sewing Machine Co. v. Barnard, 
 43 Mich. 379; Fitzgerald v. Reed, 9 Smedes & M. 94; Scanlan v. Cobb, 
 85 111. 296; Niell v. Morley, 9 Ves. 478; Riggan v. Green, 80 N. C. 236; 
 Price f. Berrington, 3 Macn. & G. 486; Carr V. Holliday, 1 Dev. & B. 
 Eq. 344; Eaton v. Eaton, 8 Vroom 108; Millsap v. Estes (N. C. 1905), 
 50 S. E. Rep. 227. 
 
 2Womack v. Womack, 8 Texas 397, 58 Am. Dec. 119; Brantley v. 
 Wolf, 60 Miss. 420; Badger V. Phinney, 15 Mass. 359, 8 Am. Dec. 805; 
 Hillyer v. Bennett, 3 Edw. Ch. 222; Smith v. Evans, 5 Humph. 70; 
 Kitchen v. Lee, 11 Paige 107, 42 Am. Dec. 101; Roof v. Stafford, 7 
 Cowen 179; Locke v. Smith, 41 N. H. 346; 2 Kent. Com. 240; Gordon 
 v. Miller (Mo. App. 1905), 85 S. W. Rep. 943. 
 
 27 3 Washburn on Real Prop. 250; Bool v. Mix, 17 Wend. 119, 31 Am. 
 Dec. 285; McCormic v. Leggett, 8 Jones (N. C.) 425. In California 
 this is changed by the Code. Civ. Code, Sec. 335; Dunton v. Brown, 
 31 Mich. 182; Williams, C. J., in Shipman v. Horton, 17 Conn. 482. 
 See Pitcher v. Laycock, 7 Ind. 398; Slator v. Trimble, 14 I. R. C. L. 
 342; McGan v. Marshall, 7 Humph. 121; Jackson v. Carpenter, 11 
 Johns. 131; Cresinger v. Welch, 15 Ohio 156, 45 Am. Dec. 565. See 
 Gaskins r. Allen (N. C. 1905), 49 S. E. Rep. 919. 
 
 791
 
 557 REQUISITES OF A DEED. [PART III. 
 
 title; but, on the other hand, the act or acts, from which the 
 ratification may be inferred, must be a sufficiently strong ad- 
 mission of the title of the grantee to give rise to the pre- 
 sumption, that the quondam infant or lunatic intends to 
 ratify his deed. 28 The acceptance of a lease, an oral ac- 
 knowledgment of the validity of the conveyance, the subse- 
 quent acceptance of the consideration, provided these acts are 
 done intelligently, will be a sufficient ratification. 29 So, on the 
 other hand, an entry, the institution of a suit, a subsequent 
 conveyance, are sufficient acts of disaffirmance to avoid the 
 deed, and no subsequent ratification of the first deed can in- 
 validate the title of the grantee in the second conveyance, if 
 the second deed is recorded. 30 So far the courts are agreed. 
 But whether a mere silent acquiescence will operate as a ratifi- 
 cation is a disputed point. A number of the courts hold that, 
 in order to avoid a deed made under disability, it must be 
 disaffirmed within a reasonable time after the removal of the 
 disability, and that if the grantee is suffered to remain in 
 possession for a long time, particularly if he makes valuable 
 improvements upon the premises, the deed will be ratified, 
 and the grantee's title made good. 31 But the position is not 
 
 28 Howe l?. Howe, 99 Mass. 98. " A deed executed by a married 
 woman while a minor was not ratified by lapse of time with no dis- 
 affirmance for more than 20 years." Gaskins v. Allen (N. C. 1905), 49 
 S. E. Rep. 919. 
 
 2 Irvine v. Irvine, 9 Wall. 618 ; Bond v. Bond, 7 Allen_ 1 ; Tucker V. 
 Moreland, 10 Peters 64; Eaton v. Eaton, 8 Vroom. 108; Arnold v. 
 Richmond Iron Works, 1 Gray 434; Robbins v. Eaton, 10 N. H. 561; 
 Boody r. McKenney, 23 Me. 517; Tyler on Infancy and Coverture, Sec. 
 43; 2 Vent. 203; Houser v. Reynolds, 1 Hayw. (N. C.) 143, 1 Am. Dec. 
 551; Riggs V. Fisk, 8 Cent. L. J. 325; Hughes v. Watson, 10 Ohio 127; 
 Blankenship V. Stout, 25 111. 132; Howe v. Howe, 99 Mass. 98; Cole V. 
 Pennoyer, 14 111. 158. See Burton v. Anthony, 79 Pac. Rep. 185; 
 Southern Cotton Oil Co. V. Dukes (Ga. 1905), 49 S. E. Rep. 788. 
 
 so Tucker V. Moreland, 10 Pet. 75; Bond V. Bond, 7 Allen 1; Jack- 
 son C. Carpenter, 11 Johns. 541; Jackson v. Burchin, 14 Johns. 124; 
 Williams, C. J., in Shipman V. Horton, 17 Conn. 482; Dunton v. Brown, 
 31 Mich. 182. 
 
 3i Robins v. Eaton, 10 N. H. 561; Emmons v. Murray, 16 N. H. 385; 
 792
 
 CH. XXIII.] REQUISITES OP A DEED. 558 
 
 sustained by the other courts, which maintain that mere ac- 
 quiescence will not operate as a ratification, unless it has been 
 so long continued as to bar the right of action under the 
 Statute of Limitations. 32 
 
 558. Deeds of married women'. It may be stated as a 
 general proposition that the deeds of married women, unless 
 they are also executed by their husbands, or unless it is other- 
 wise provided by statute, are absolutely void ; and if, after be- 
 coming discovert, a second conveyance, or a second delivery of 
 the same deed, is made, the deed takes effect as a primary con- 
 veyance from the time of the second delivery, and not as a 
 secondary conveyance confirmatory of the prior conveyance 
 during coverture. 33 Reference is not made here to her sole 
 and separate property. This species of property is an equi- 
 table estate governed by the rules of the law of uses and trusts ; 
 this branch of the subject has been already discussed, and the 
 powers of married women in relation thereto explained. 34 
 But in a number of the United States statutes have been en- 
 Jackson v. Carpenter, 11 Johns. 539; Hartley v. Wharton, 11 Ad. & E. 
 934; Wallace r. Lewis, 4 Har. (Del.) 75; Jones v. Butler, 30 Barb. 641 ; 
 Flinn v. Powers, 36 How. Pr. 289; Jamison v. Smith, 35 La. An. 609; 
 Green V. Wilding, 59 Iowa 679, 44 Am. Rep. 696. 
 
 32 Irvine v. Irvine, 9 Wall. 618; Hovey r. Hobson, 53 Me. 453; 
 Prout v. Wiley, 26 Mich. 164; Thomas V. Pullis, 56 Mo. 211; Wallace 
 v. Latham, 52 Miss. 291; Stringer V. Northwestern Mut. Life Ins. Co., 
 82 Ind. 100; Tucker v. Moreland, 10 Peters 59; Huth f. Carondelet, 56 
 Mo. 202, 210, per Napton, J. See Urban v. Grimes, 2 Grant Cas. 96; 
 Gillespie v. Bailey, 12 W. Va. 70; Sims v. Everhardt, 22 Alb. L. J. 445; 
 Sims v. Bardoner, 86 Ind. 87, 44 Am. Rep. 263; Sims v. Smith, 86 Ind. 
 577; Shepley, J., in Boody v. McKenney, 23 Me. 517, 523; Jackson v. 
 Carpenter, 11 Johns. 539; Curtin v. Patten, 11 Serg. & R. 311. See 
 Gaskins v. Allen, 49 S. E. Rep. 919; Vincent v. Blanton (Ky. 1905), 85 
 8. W. Rep. 703. 
 
 33 Zouch v. Parsons, 3 Burr. 1805 ; Allen t. Hooper, 50 Me. 374 ; Hatch 
 v. Bates, 54 Me. 139; Concord Bank v. Bellis, 10 Cush t 277; Davis v. 
 Andrews, 30 Vt. 681; Perrine v. Perrine, 11 N. J. Eq. 144; Lefevre r. 
 Murdock, Wright 205; Bressler v. Kent, 61 111. 426; Cope v. Meeks, 3 
 Head 388; Goodright v. Straphan, Cowp. 201. 
 
 34 See ante, Sec. 348. 
 
 793
 
 558 REQUISITES OP A DEED. [PART TO. 
 
 acted abolishing the entire common law in relation to the 
 property rights of married women, and giving them the rights 
 and capacity of single women. 85 In Massachusetts the sepa- 
 rate deed of a married woman will be good for every other 
 purpose except to convey the husband's right of curtesy 
 therein. 86 And perhaps it may be doubtful in some of the 
 other States, where statutes of this character have been 
 passed, whether it is not still necessary for the husband to 
 join in the execution of the deed, in order to bar his right 
 of curtesy. In New York the husband's curtesy is barred by 
 the separate conveyance of the wife. 37 At common law the 
 only mode of conveying the wife's property was by levying 
 a fine. 38 Subsequently, by statute, 3 & 4 Wm. IV, ch. 74, a 
 joint conveyance of husband and wife, when properly ac- 
 knowledged, was made sufficient to convey her estate, thus do- 
 ing away with the necessity of the fine. 39 And still later, in 
 1874, by statute 37 & 38 Viet., ch. 78, when any estate shall 
 be vested in a married woman as a bare trustee, she may con- 
 vey it as freely as if she were a feme sole.* But in this coun- 
 try fines and recoveries were never recognized as modes of 
 conveying the interests of married women, and instead thereof 
 it has from the early colonial days become customary in the 
 United States for married women to convey their real estate 
 by deed, in which their husbands joined. This custom has 
 been generally recognized wherever the common-law disability 
 
 35 See ante, Sec. 74. 
 
 ssBeal v. Warren, 2 Gray 458; Willard v. Eastham, 15 Gray 334; 
 Campbell v. Bemis, 16 Gray 487. In Alabama, Connecticut, Idaho, Ken- 
 tucky, North Carolina and Pennsylvania, the husband must join in 
 the deed of his wife. Winestein v. Marks Co., 59 Atl. Rep. 496 ; Karlson 
 v. Sawmill Co., 78 Pac. Rep. 1080; Smith V. Burton, 49 S. E. Rep. 64; 
 Linton V. Moorhead, 209 Pa. 646, 59 Atl. Rep. 264; Collier v. Doe, 
 ex rel. Alexander, 38 So. Rep. 244; Furnish Admr. v. Lilly, 84 S. W. 
 Rep. 734. 
 
 87 Yale v. Dederer, 22 N. Y. 460; Hatfield v. Sneden, 54 N. Y. 287. 
 
 38 3 Washburn on Real Prop. 252 ; Williams on Real Prop. 229, 230. 
 
 8 Williams on Real Prop. 230. 
 
 40 Williams on Real Prop. 232. 
 794
 
 CH. XXIII.] REQUISITES OF A DEED. 558 
 
 still prevails, and has been adopted as law and incorporated 
 into the statutes of the different States. 41 In some of the 
 States certain forms of conveyance and modes of execution 
 are prescribed by statute, and in those States a strict com- 
 pliance with the requirements of the statute is necessary; if 
 it is not executed according to the statute the conveyance will 
 be void.* 2 In some of the States it is required that she be 
 examined privately by an officer authorized to take oaths, and 
 the deed acknowledged by her as her free act and deed, and 
 she is generally required to state further, that her husband 
 has not by any means of intimidation prevailed upon her to 
 execute it against her will. 43 In the New England States, and 
 in some others, a privy examination is not required, a simple 
 acknowledgment being sufficient, and in some of the States 
 the joint conveyance may be made by separate deeds. 44 It is 
 
 4i Fowler v. Shearer, 7 Mass. 14 ; Jackson v. Gilchrist, 15 Johns. 
 110; Lloyd's Lessees v. Taylor, 1 Dall. 17; 3 Washburn on Real Prop. 
 252; Williams on Real Prop. 231, Rawle's note; 4 Kent's Com. 152, 154; 
 Blythe v. Dargin, 68 Ala. 370; Holt v. Agnew, 07 Ala. 360; Call V. 
 Perkins, 65 Me. 439; Buchanan v. Hazzard, 05 Pa. St. 240; Concord 
 Bank v. Bellis, 10 Gush. 276; Powell v. The Monson & B. Manuf. Co., 
 3 Mason 347; Manchester v. Hough, 5 Mason 67. The deed of a mar- 
 ried woman to her land, in which her husband fails to join, is valid in 
 New York. Hardwick v. Selzi, 93 N. Y. S. 265. Also in Colorado. 
 Patrick v. Morrow, 81 Pac. Rep. 242. See Peter v. Byrne (Mo. 1903), 
 75 S. W. Rep. 433. 
 
 <2 Hepburn v. Dubois, 12 Pet. 375; Elwood v. Blackf. 13 Barb. 50; 
 Askew V. Daniel, 5 Ired. Eq. 321; Rumfelt f. Clements, 46 Pa. 455; 
 Thorndell V. Morrison, 25 Pa. 326; Millenberger . Croyle, 27 Pa. 170; 
 Richards v. McClelland, 29 Pa. St. 385; Roseburg's Exrs. v. Sterling's 
 Heirs, 27 Pa. 292. 
 
 48 Albany Fire Ins. Co. v. Pay, 4 N. Y. 9 ; Dundas v. Hitchcock, 12 
 How. 256; Elliott V. Pearce, 20 Ark. 508; Askew V. Daniel, 5 Ired. Eq. 
 321; Scott v. Purcell, 7 Blackf. 66; Holt v. Agnew, 67 Ala. 360; Call 
 v. Perkins, 65 Me. 439; Buchanan v. Hazzard, 95 Pa. St. 240; Sumner v. 
 Conant, 10 Vt. 20; Blythe v. Dargin, 68 Ala. 370; Evans v. Summerlin, 
 19 Fla. 858. This is still the law in Arkansas. Wade v. Brown, 87 
 S. W. Rep. 839. 
 
 <4 Greenl. Cruise, 19, note; 3 Washburn on Real Prop. 254, 255; 2 
 Kent's Com. 150-154; Strickland V. Bartlett, 51 Me. 355; Bean V. 
 Boothby, 57 Me. 295; Woodward v. Seaver, 38 N. H. 29; Frary V. 
 
 795
 
 558 REQUISITES OF A DEED. [PART III. 
 
 also generally necessary that the deed, in order to pass the 
 wife's property, must contain words of grant which expressly 
 or impliedly refer to her, and proceed from her. Merely 
 signing a deed, in which the husband is represented as con- 
 veying his right or interest in the property, will not make it 
 her deed. She must be joined with him in the operative words 
 of the deed. 45 But generally there will be a sufficient join- 
 ing of the husband in the deed if he signs it. It is not neces- 
 sary for him to be mentioned in the deed as one of the 
 grantors. 46 And where both are mentioned as grantors the 
 deed may be made to convey not only her property, but also 
 his independent interests in the same. 47 In several of the 
 States it is provided by statute that a married woman will 
 have the powers and capacity of single women, if her hus- 
 band has deserted her, or has been consigned to prison, or 
 has become incapable of executing deeds from any other 
 cause. 48 It is impossible to present within any narrow com- 
 pass the details of the law in respect to property rights of 
 married women, as it prevails in the different States. Ref- 
 erence must be had to the statutes and decisions of the State 
 in which the question arises. 
 
 Booth, 37 Vt. ^8. The joint acknowledgment of husband and wife is 
 all the Missouri law requires. Peter v. Byrne, 75 S. W. Rep. 433. 
 
 45 Agricultural Bank v. Rice, 4 How. 225 ; Dundas V. Hitchcock, 12 
 How. 256; Melvin V. Props, of Locks and Canals, 16 Pick. 137; Learned 
 V. Cutler, 18 Pick. 9; Purcell V. Goshorn, 17 Ohio 105; Cox v. Wells, 7 
 Blackf. 410; Stearns V. Swift, 8 Pick. 532. 
 
 <6 Hills v. Bearse, 9 Allen 406; Elliott V. Sleeper, 2 N. H. 525; Wood- 
 ward v. Seaver, 38 N. H. 29; Stone v. Montgomery, 35 Miss. 83; In- 
 goldsby v. Juan, 12 Cal. 564. See Collier v. Doe, ex rel. Alexander 
 (Ala. 19C5), 38 So. Rep. 244. 
 
 4" Needham v. Judson, 101 Mass. 161. 
 
 48Qreenl. Cruise, 19, 20; Gregory v. Pierce, 4 Mete. 478; Abbott 
 v. Bayley, 6 Pick. 89; Boyce v. Owena, 1 Hill (S. C.) 8. See Dum v. 
 Stawers (Va. 1905), 51 S. E. Rep. 366; Furnish Admr. v. Lilly (Ky. 
 1905), 84 S. W. Rep. 734; McDaniels v. Sommons (Ark. 1905), 86 S. 
 W. Rep. 997 ; Stephens v. Stephens, 85 S. W. Rep. 1093. The husband's 
 deed alone is color of title as against the wife. Rose r. Ware (Ky. 
 1903), 74 S. W. Rep. 188. But see, contra, McNeely v. Oil Co. (W. Va. 
 1903), 44 S. E. Rep. 508. 
 796
 
 CH. XXIII.]; REQUISITES OF A DEED. 559 
 
 559. A disseisee cannot convey. Another requisite under 
 the head of competent grantors is, that the grantor is seised 
 at the time of the conveyance. If the land is in the adverse 
 possession of another, disseisin leaving nothing in him but a 
 chose in action, the grantor is prohibited at common law from' 
 conveying this interest. This prohibition has been retained 
 in a number of the States, to which reference is made in the 
 cases cited below. 49 It has also been held that the disseisin of 
 a mortgagor will invalidate the mortgage and the assignment 
 of, it by the mortgagee. 50 But the deed is only void against 
 the parties in adverse possession at the time of the conveyance. 
 As against the rest of the world and between the parties to the 
 deed, it is good. 61 And although the legal title, as against 
 the disseisor, remains in the grantor unaffected by the grant, 
 the grantee acquires such an interest in the land as will en- 
 able him to claim the land against the grantor, and maintain 
 
 "Hathorne V. Haines, 1 Me. 238; FoXcroft V. Barnes, 29 Mich. 128; 
 Sohier v. Coffin, 101 Mass. 179; Park v. Pratt, 38 Vt. 563; Betsey v. 
 Torrance, 34 Miss. 132 ; Ewing f. Savary, 4 Bibb 424 ; Jackson V. 
 Ketchum, 8 Johns. 479 ; Jackson v. Andrews, 7 Wend. 152 ; Roberts V. 
 Cooper, 20 How. 467; Thurman v. Cameron, 24 Wend. 87; Burdick, 14 
 R. I. 574; Bernstein v. Humes, 75 Ala. 241; Stockton V. Williams, 1 
 Dougl. (Mich.) 546; Wade v. Lindsey, 6 Met. 407, 414; Harral V. Lev- 
 erty, 50 Conn. 46, 47 Am. Rep. 608; Burgett V. Taliaferro, 118 111. 503; 
 Johnson f. Prairie, 94 N. C. 773. 
 
 so Williams v. Baker, 49 Me. 428. See Deans v. Gay (N. C. 1903), 
 43 S. E. Rep. 643. 
 
 51 Wade r. Lindsey, 6 Mete. 407; Farmer v. Peterson, 111 Mass. 151; 
 White v. Fuller, 38 Vt. 204; Park v. Pratt, 38 Vt. 553; Livingston v. 
 Peru Iron Co., 9 Wend. 511; Betsey v. Torrance, 34 Miss. 138; Brinley 
 r. Whiting, 5 Pick. 348, 355; Loud v. Darling, 7 Allen 206; Sohier v. 
 Coffin, 101 Mass. 179; McMahan f. Bowe, 114 Mass. 140; Snow v. Or- 
 leans, 126 Mass. 453; Alexander V. Carew, 13 Allen 72; White V. Fuller, 
 38 Vt. 204; Betsey v. Torrance, 34 Miss. 138; Park v. Pratt, 38 Vt. 553. 
 But see Steeple v. Downing, 60 Ind. 484 ; Brinley V. Whiting, 5 Pick. 
 348; Tabb r. Baird, 3 Call. 475; Gibson v. Shearer, 1 Murph. 114. But 
 the deed of a disseisee, who has not held possession for the statutory 
 period will not pass title as against the holder thereof. United W. J. 
 Canal Co. v. Con. Fruit Jar Co., 55 Atl. Rep. 46; Zwerble r. Myers, 95 
 N. W. Rep. 597. 
 
 797
 
 560 REQUISITES OF A DEED. [PART III. 
 
 his action of ejectment against the disseisor in the name of 
 the grantor. 82 But it is always competent for the grantor to 
 make a good conveyance of lands in the adverse possession 
 of another by entering upon the land and delivering the deed 
 there. His entry restores the seisin to him for the time be- 
 ing, and interrupts the continuity of the adverse possession. 53 
 This doctrine does not apply to incorporeal hereditaments, nor 
 to such adverse possession of strips of land arising from a 
 mistake as to the boundaries. 54 And since a State cannot be 
 disseised, no adverse possession will invalidate its deed of con- 
 veyance. 65 These principles prevail generally in this coun- 
 try, but in some of the States the entire doctrine has been re- 
 pudiated, and it is there held that disseisin does not in any 
 way affect the capacity of the grantor to convey. 56 
 
 560. Fraud and duress. Not only must there be a 
 grantor capable of making a conveyance, but the deed must 
 be a free and voluntary act. If, therefore, he is induced by 
 fraud, or forced by threats of personal injury, to make a con- 
 veyance which he would not otherwise have made, the deed 
 is voidable. By restoring the consideration, he may, within 
 a reasonable time after the discovery of the fraud, or after 
 
 52Brinley v. Whiting, 5 Pick. 348; Sohier fl. Coffin, 101 Mass. 179; 
 Wade v. Lindsey, 6 Mete. 413; Jackson v. Leggett, 7 Wend. 380; Liv- 
 ingston V. Peru Iron Co., 9 Wend. 523; Betsey V. Torrance, 34 Miss. 
 138; Stockton V. Williams, 1 Dougl. (Mich.) 546; Shartall V. Hinck- 
 ley, 31 111. 219. 
 
 osFarwell v. Rogers, 99 Mass. 36; Warner v. Bull, 13 Mete. 4. 
 
 5* Corning v. Troy Iron Factory, 40 N. Y. 191; Cleveland v. Flagg, 4 
 Cush. 76; Sparhawk v. Bogg, 16 Gray 585. See Handouf v. Haes (Iowa 
 1903), 95 N. W. Rep. 226. 
 
 55 Ward f. Bartholomew, 6 Pick. 409 ; People v. Mayor, etc., 28 Barb. 
 240. See Doe v. Pugh (Ala. 1903), 34 So. Rep. 377. See also, El Paso 
 v. Bank, 74 S. W. Rep. 21. 
 
 seCresson v. Miller, 2 Watts 272; Poyas v. Wilkins, 12 Rich. 420; 
 Bennett V. Williams, 5 Ohio 461; Shortall V. Hinckley, 31 111. 219; 
 Fetrow . Merriweather, 53 111. 279; Stewart v. McSweeney, 14 Wis. 
 471: Crane v. Reeder, 21 Mich. 82; Crigler v. Mexico, 74 S. W. Rep. 
 384. 
 
 798
 
 CH. XXIII.] REQUISITES OF A DEED. 561 
 
 he is removed from the threatened danger, disaffirm the deed, 
 and recover the land. 57 What will constitute such a duress 
 as to avoid a deed made while under its influence, is a ques- 
 tion which is determined by the facts of each case. It must 
 be such a duress as will seriously interfere with, or take away, 
 the will power of the grantor. According to the United 
 States Court, "unlawful duress is a good defense if it in- 
 cludes such a degree of constraint or danger, either actually 
 inflicted or threatened and impending, as is sufficient in se- 
 verity or apprehension to overcome the mind and will of a 
 person of ordinary firmness. " 58 In New Hampshire it was 
 held necessary that the duress must raise the apprehension of 
 loss of life, limb or personal property ; 80 while it has been held 
 sufficient duress that a wife signed under threats of abandon- 
 ment by the husband, and in another case under a threat of 
 criminal prosecution against her husband. 60 Perhaps no 
 better rule can be laid down than that which is taken from 
 the United States Supreme Court, regard being had, in its 
 application to particular cases, to the age, condition and sex 
 of the parties. 
 
 561. Proper parties Grantees. All persons, as a gen- 
 eral rule, are able to take property as grantees, infants, per- 
 
 2 Bla. Com. 291; 3 Washburn on Real Prop. 260j Worcester V. 
 Eaton, 13 Mass. 371; Bassett v. Brown, 105 Mass. 551; Fisk v. Stubbs, 
 30 Ala. 335; Davis v. Fox, 59 Mo. 125; Cook v. Moore, 39 Texas 255; 
 Bacon's Abridgement, Tit. Duress, D. ; Worcester V. Eaton, 13 Mass. 
 377, 7 Am. Dec. 155. 
 
 58 United States v. Huckabee, 16 Wall. 423; Harmon v. Harmon, 61 
 Me. 227, 14 Am. Rep. 556; State v. Sluder, 70 N. C. 55; Bosley v. 
 Schanner, 26 Ark. 280; Beckwith v. Frisbie, 32 Vt. 559; Maxwell V. 
 Griswold, 10 How. 242. 
 
 B Evans v. Gale, 18 N. H. 401. A deed by parents, to prevent the 
 prosecution of their son by the grantee, will be set aside, in Texas. 
 Medaris v. Cranberry, 84 S. W. Rep. 1070. See also, McClelland v. 
 Bullis (Colo. 1905), 81 Pac. Rep. 771. 
 
 o Eddie v. Slimmons, 26 N. Y. 12; Topley v. Topley, 10 Minn .460. 
 See Medaris v. Cranberry (Texas 1905), 84 S. W. Rep. 1070. 
 
 799
 
 561 REQUISITES OF A DEED. [PART HI. 
 
 sons non compotes mentis, married women, corporations, etc. 61 
 But from the necessity of the case, if these conveyances are 
 coupled with a condition imposing duties upon the grantee, or 
 contain covenants of the grantee, the grantee under disability 
 cannot be compelled to perform them. And if in conse- 
 quence of his failure to perform, the conveyance may be 
 avoided, the grantor's only remedy is to recover the land. 
 But in respect to married women, it seems that the assent of 
 the husband is necessary at common law to make the con- 
 veyance to the wife valid. The deed is otherwise void. And 
 if he assents to the conveyance neither she nor her heirs can 
 disaffirm the deed after his death. 62 Lord Coke maintains 
 that the assent of the husband does not prevent a disclaimer 
 by the wife after his death. 63 The statutes of mortmain in 
 England prohibit corporations from taking lands by purchase, 
 unless specially authorized. But these statutes have never 
 prevailed in this country, except in Pennsylvania, and, there- 
 fore, corporations are free to purchase lands to any amount, 
 unless specially restrained by their charters, 64 or by the gen- 
 eral laws under which the incorporation was obtained. It is 
 customary, however, to limit the amount of real property 
 which a corporation may hold, and the State may confiscate 
 whatever lands it acquires above the limit. But if the land 
 exceeds the limit in consequence of the rise in value, it will 
 not be subject to forfeiture. 65 For the grant of an immedi- 
 
 i 3 Washburn on Real Prop. 267; Melvin v. Proprs., etc., 16 Pick. 
 167; Concord Bank r. Bellis, 10 Cush. 278; Spencer v. Carr, 45 N. Y. 
 410; Mitchell v. Ryan, 3 Ohio St. 387; Rivard v. Walker, 39 111. 413; 
 Cecil V. Beaver, 28 Iowa 241. 
 
 62 Co. Lit. 3 a ; Butler v. Baker, 3 Rep. 26 ; Whelpdale's Case, 5 Rep. 
 119; Melvin v. Proprs., etc., 16 Pick. 167; Foley v. Howard, 8 Clark 36. 
 
 63 Co. Lit. 3 a. 
 
 64 The acquisition of land by a corporation not specially authorized 
 by its charter to hold land, is not for that reason unlawful. Schneider 
 v. Sellers (Texas 1905), 84 S. VV. Rep. 417. 
 
 65 3 Washburn on Real Prop. 267 ; Bogardus v. Trinity Church, 1 
 Sandf. Ch. 633. In this case the property, when acquired by the cor- 
 poration, yielded an income of 30, and by the remarkable rise in the 
 
 800
 
 CH. XXIII.] REQUISITES OF A DEED. 562 
 
 ate estate in possession, it is necessary that the grantee be in 
 esse, and if it be shown that the grantee came into being after 
 the conveyance, it will avoid the deed. 66 But this is not nec- 
 essary in the grant of remainders and future contingent es- 
 tates. 67 
 
 562. Proper parties named in the deed. Not only must 
 there be proper parties, grantor and grantee, but they must 
 be named in the deed. Names are necessary to distinguish 
 the parties, and render certain who are the grantor and 
 grantee. The object, therefore, is attained if any name is 
 used, not necessarily the true name, provided means are pro- 
 vided in the deed for ascertaining the true parties. A man 
 may be described by his office or by his relation to a certain 
 person. 68 And a mistake in the Christian name or in the 
 
 value of real estate in the city of New York the income was increased 
 to $300,000. 
 
 Miller r. Chittenden, 2 Iowa 368; Barr r. Schroeder, 32 Cal. 610; 
 1 Wood on Conveyancing, 170, 172; Perkins, 53; 3 Washburn on Real 
 Prop. (4 ed.) 266. But see, Hall v. Wright (Ky. 1905), 87 S. W. Rep. 
 1129. 
 
 THall V. Leonard, 1 Pick. 27; Morris v. Stephens, 46 Pa. St. 200; 
 Huss v. Stephens, 51 Pa. St. 282; 3 Washburn on Real Prop. 266, 267; 
 Mellichamp r. Mellichamp, 28 S. C. 125. 
 
 8 A grant to the heirs of A., A. being dead, is good, for it is possi- 
 ble to ascertain who are the heirs of A. Hogan v. Page, 2 Wall. 607; 
 Ready v. Kearsley, 14 Mich. 225; Cook v. Sinnamon, 47 111. 214; Boone 
 v. Moore, 14 Mo. 420. A limitation by devise to the heirs of a living 
 person has been held to be a grant to the person and his heirs. White 
 f. Rukes, 37 Fed. Rep. 754. In Georgia a grant to heirs of a living 
 person was held to be a grant to his children born and living at the 
 time of the conveyance, and excluding children born subsequently. 
 Tharp v. Yarborough, 79 Ga. 382. See, also, Pivard V. Gisenhof, 35 Hun 
 247; Heath v. Hewitt (N. Y.), 27 N. E. Rep. 959; Crisswell v. Grumb- 
 ling, 107 Pa. St. 408. A grant to A. and his partners has also been 
 held good. Hoffman' V. Porter, 2 Brock. 156; Morse V. Carpenter, 19 Vt. 
 613. Contra, Arthur V. Weston, 22 Mo. 378. So likewise to a partner- 
 ship in the firm name. New Vienna Bank v. Johnson (Ohio), 24 N. E. 
 Rep. 503; Menage V. Burke, 43 Minn. 211. But see, contra, Ketchum 
 f?. Barber (Cal.), 12 Pac. Rep. 251, where it is held that a conveyance 
 to a firm, in the firm name, for example to Henry Stull & Co., passes 
 
 51 801
 
 562 REQUISITES OP A DEED. [PART III. 
 
 name of a corporation, or the use of different names in dif- 
 ferent parts of the deed is not fatal, provided the uncer- 
 tainty arising therefrom is not incurable. If the true party 
 can be ascertained, the deed will be good. 09 A deed to one 
 under an assumed name would be good, if the real grantee 
 can be ascertained. 70 But a deed to a fictitious person, or to 
 one by his surname only, without further means of identify- 
 ing the person intended, would be void for uncertainty. 71 It 
 has, however, been held that where the Christian name is left 
 blank, the grantee, being in possession of the deed, may show 
 by parol evidence that he was the person intended. 72 The 
 law knows only one Christian name. The omission of the 
 middle name is, therefore, not material ; neither is a mistake 
 in calling the party senior, when he is the junior of the 
 name. 78 In the same manner a mistake in the Christian name 
 
 title only to the persons whose names appear in the firm name. See, 
 also, generally. Dr. Ayray's Case, 11 Rep. 20; Sir Moyle Finch's Case, 
 6 Eep. 65 ; Shaw v. Loud, 12 Mass. 447. A grant to the survivor of 
 two persons named contains a proper designation of the grantee. Me- 
 Kee v. Marshall (Ky.), 5 S. W. Rep. 415. "A deed 'to the estate of 
 E., his heirs or assigns,' is not void for want of a grantee, but conveys 
 title to them entitled to take the estate of E." McKee V. Ellis (Tex. 
 Civ. App. 1904), 83 S. W. Rep. 880. 
 
 ssBoothroyd V. Engles, 23 Mich. 21; Middleton v. Findla, 25 Cal. 80; 
 Ashville Division v. Aston, 92 N. C. 578 ; Grand Tower, etc., Co. v. Gill, 
 111 111. 541; Spinker v. Haagsman, 99 Mo. 208, 12 S. W. Rep. 659; 
 McDuffie v. Clark, 9 N. Y. S. 826; Galveston, etc., R. R. Co., v. Stealy, 
 66 Texas 468, 1 S. W. Rep. 186 ; Gould v. Barnes, 3 Taunt. 505 ; Lind v. 
 Hook, Mod. Cas. cited Cro. Elix. 807 n, a; James v. Whitbread, 11 
 Com. B. 406; Reeves V. Slater, 7 Barn. & C. 489; Williams v. Bryant, 
 5 Mees. & W. 454. See Elliott v. Davis, 2 Bos. & P. 339. 
 
 TO Wilson v. White, 84 Cal. 239, 24 Pac. Rep. 114. 
 
 71 Fanshaw's Case, F. Moore, 229; Jackson v. Corey, 8 Johns. 388; 
 Hornbeck V. Westbrook, 9 Johns. 74; Muskingum Turnpike v. Ward, 13 
 Ohio 120. 
 
 72 Fletcher v. Mansur, 5 Ind. 269. See Morse v. Carpenter, 19 Vt. 
 615. 
 
 78 Games v. Stiles, 14 Pet. 322; Dunn v. Games, 1 McLean 321; 
 Franklin v. Tallmadge, 5 Johns. 84; Jackson v. Hart, 12 Johns. 77; 
 Jackson v. Miner, 15 Johns. 226; Jackson v. Cody, 9 Cowen 140; 
 802
 
 CH. XXIII.] REQUISITES OF A DEED. 563 
 
 may be explained by a reference to the other parts of the 
 deed. 74 There is the same necessity of naming in the deed 
 the person who is to take the equitable interest under it as 
 to name the grantee of the legal estate. 75 And if a grant is 
 made to trustees of an unincorporated corporation, the per- 
 sons named as trustees take individually and not as trustees. 76 
 And where there is a person named in the deed as the grantee 
 of the immediate estate, the remainder-man under the deed 
 need not be made a party to the deed, although he must be 
 named or sufficiently described. 77 Finally, in order that a 
 deed may be valid, there must be a definite deed, an ascer- 
 tained grantor and grantee, and if there is an incurable un- 
 certainty as to either, arising from the terms of the deed, it 
 will be void. 78 But if the intent of the grantor can be ascer- 
 tained, it will be given effect, although it renders nugatory 
 some clause of the deed. It has thus been held that the 
 grantee takes a life estate and her husband the remainder, 
 although in another part of the deed the estate was limited 
 to the wife and her heirs. 79 
 
 563. A thing to be granted. In order that there may be 
 a conveyance, there must be a thing to be conveyed, and this 
 must be sufficiently described in the deed, so as to be capable 
 
 Roosevelt v. Gardiner, 2 Cowen 643; Cobb v. Lucas, 15 Pick. 7; Com- 
 monw. v. Perkins, 1 Pick. 388; Banks v. Lee, 73 Ga. 25. 
 
 74 3 Washburn on Real Prop. 265. 
 
 "German Assn. v. Scholler, 10 Minn. 331. See ante, Sec. 331, and 
 post, Sees. 640, 641. 
 
 76 Austin v. Shaw, 10 Allen 552 ; Brown v. Combs, 29 N. J. L. 36 ; 
 Tower v. Hale, 46 Barb. 361; Den v. Hay, 21 N. J. L. 174. See post, 
 Sees. 640, 641, in reference to the devises to unincorporated bodies. 
 
 7T Hornbeck v. Westbrook, 9 Johns. 73; Hunter v. Watson, 12 Cal. 
 363. 
 
 78 Jackson v. Corey, 8 Johns. 388; Hornbeck v. Westbrook, 9 Johns. 
 74; Hardin v. Hardin (S. C.), 11 S. E. Rep. 102. 
 
 T Bean v. Kenmuir, 86 Mo. 666; Bodine's Admr. v. Arthur (Ky.), 
 14 S. W. Rep. 904. See, for rule in Missouri, in grant to woman and 
 her heirs, Miller v. Dum, 83 S. W. Rep. 436. See also, Schrecongost v. 
 West (Pa. 1904), 59 Atl. Rep. 269, 210 Pa. 7. 
 
 803
 
 563 REQUISITES OF A DEED. [PART III. 
 
 of easy identification. 80 It may now be stated as a general 
 rule, subject to a few exceptions to be mentioned hereafter, 
 that every freehold interest in, or issuing out of, lands must 
 and can only be conveyed by deed. 81 And whatever is cre- 
 ated by deed, can only be transferred by deed. 82 Not only 
 must estates in the land itself be conveyed by deed, but in- 
 corporeal hereditaments of a freehold character, easements, 
 profits a prendre, the mines and other deposits upon the land 
 apart from the soil, all require a deed to be granted. 83 It has 
 been a much debated question whether, to pass the title to 
 growing or standing trees, it is necessary that the sale should 
 be made by writing. Some authorities hold, notably the Eng- 
 lish courts, that if the sale contemplates the immediate re- 
 moval of the trees, it is not necessary that it should be done 
 by deed or other instrument in writing, since it can and ought 
 to be considered a sale of chattels rather than an interest in 
 the freehold. 84 On the other hand, the courts of this country 
 
 80 See post. Sees. 590, 605, for a discussion of the usual elements of a 
 description of the land, and for what is a sufficient description. 
 
 si 3 Washburn on Real Prop. 341. Mr. Washburn, on the page re- 
 ferred to, says that " since the Statute of Frauds (29 Charles II, Ch. 
 3), a deed has been required, in order to convey a freehold, in, to, or 
 out of any messuages, manors, lands, tenements, or hereditaments." 
 The Statute of Frauds only requires such conveyances to be put in 
 writing, and does not require a deed. When this section (563) was 
 written, the author had entertained the generally prevailing idea that 
 a deed, i. e., an instrument in writing under seal, was necessary to con- 
 vey all freehold interests in lands, and had not yet written Section 549, 
 in which the contrary position, with qualifications, has been assumed. 
 Inasmuch as a deed is necessary in the conveyance of very many free- 
 hold interests for example, incorporeal hereditaments the present 
 section has not been altered; but the statements made there and else- 
 where must be read in the light of Section 549. 
 
 82 3 Washburn on Real Prop. 341. 
 
 88 3 Washburn on Real Prop. 341. See ante, Sec. 549. For requisites 
 in grants of mineral, both with and apart from the surface of land, see, 
 White, Mines & Min. Rem., Chap. IV, et sub. 
 
 s* Smith V. Surman, 9 B. & C. 561; Evans v. Roberts, 5 B. & C. 829; 
 Marshall v. Green, 33 L. T. Rep. (N. s.) 404; Bostwick v. Leach, 3 
 Day 476. But in Rodwell v. Phillips, 9 Mees. & W. 505, contra, the 
 804
 
 CH. XXIII.] REQUISITES OF A DEED. 563 
 
 generally hold that standing trees are "a part of the inherit- 
 ance, and can only become personalty by actual severance, 
 or by severance in contemplation of law as the effect of a 
 proper instrument in writing. " 85 A sale of standing trees is a 
 twofold contract. It includes a sale of trees when severed 
 from the land, which must necessarily be executory in its 
 character, and a license to go upon the land and remove them. 
 Until a severance has been made, the only vested interest 
 which the vendee has is the license, and it being an interest in 
 land, it is revocable unless granted by a proper instrument of 
 conveyance. Where the license is of a definite duration, it 
 being then a leasehold interest in the land, a deed strictly so- 
 called will not be necessary. But if it is indefinite, it becomes 
 a freehold interest in lands, and requires a deed to grant it. 8 * 
 Standing trees and other things growing upon the land cer- 
 tainly pass with the conveyance of the freehold, unless ex- 
 pressly excepted. 87 If, therefore, a sale is made of standing 
 trees with a parol license to enter and cut them, it does not 
 prevent the title to the trees from passing to a subsequent 
 
 court say : " It must be admitted, taking the cases altogether, that no 
 general rule is laid down in any one of them that is not contradicted 
 by some other." See Ross v. Cook (Kan. 1905), 80 Pac. Rep. 38. 
 
 ssSlocum V. Seymour, 36 N. J. 139; Trull v. Fuller, 28 Me. 548; 
 Green V. Armstrong, 1 Denio 550; Giles V. Simonds, 15 Gray 441; De- 
 laney v. Root, 99 Mass. 548; Poor v. Oakman, 104 Mass. 316; White 
 r. Foster, 102 Mass. 378; Buck v. Pickwell, 27 Vt. 164. 
 
 s Clap v. Draper, 4 Mass. 266 ; Green V. Armstrong, 1 Denio 554 ; 
 Kingsley V. Holbrook, 45 N. H. 313; Howe v. Batchelder, 49 N. H. 208 r 
 Sterling v. Baldwin, 42 Vt. 308; Huff v. McCauley, 58 Pa. St. 210; 
 Pattison's Appeal, 61 Pa. St. 297. "While an oral contract to sell 
 standing timber is invalid as a contract, yet it is good as a license, 
 and timber cut before the revocation thereof becomes the property of 
 the licensee." Antrim Iron Co. v. Anderson (Mich. 1905), 104 N. W. 
 Rep. 319, 12 Detroit Leg. N. 314. 
 
 ST Bracket v. Goddard, 54 Me. 313; Noble v. Bosworth, 19 Pick. 314; 
 Cook V. Whiting, 16 111. 481. But Chancellor Kent maintains that 
 growing crops do not pass with the grant of the land. 4 Kent's Com. 
 468; Smith v. Johnston, 1 Pa. St. 471. See Foote v. Colvin, 3 Johns. 
 216; Turner v. Reynolds, 23 Pa. St. 199; Mcllvaine v. Harris, 20 Mo. 
 467. See also, Brinson & Co. v. Kirkla'nd (Ga. 1905), 50 S. E. Rep. 369. 
 
 805
 
 564 REQUISITES OF A DEED. [PART III. 
 
 grantee ; the license by such subsequent conveyance is revoked, 
 and the licensee is left to his remedy against his licensor for 
 the breach of his executory contract. 88 Some of the courts 
 are also inclined to treat the sale of annual crops as the sale 
 of chattels instead of an interest in lands. This is undoubt- 
 edly the correct theory, qualified, however, by the statement 
 that the sale must be evidenced by some writing, in order to 
 give to the vendee any vested interest during the growth of 
 the crop. But since the license is only for a year, or less than 
 a year, any writing will suffice. 89 
 
 564. A thing to be granted Continued A mere possi- 
 bility. A further qualification of the above stated general 
 rule is, that there cannot be a grant of a mere possibility, un- 
 less coupled with a vested interest. It must be a vested pres- 
 ent future estate. 90 But this rule is not now enforced so 
 rigidly as formerly. Thus, the deed of an heir apparent con- 
 veying his ancestor's estates has been held to attach in equity 
 to the estate upon the death of the ancestor. 91 Also a grant 
 by a soldier of bounty lands to be thereafterwards given to 
 him by the government. 92 So, also, can there be a grant of a 
 right of redemption from a mortgage or deed of trust. 93 And 
 a further modification is attained by the application of the 
 
 ss Whitmarsh v. Walker, 1 Mete. 313; Giles v. Simonds, 15 Gray 44i. 
 
 8 Crosby v. Wadsworth, 6 East 602; Waddington v. Bristow, 2 B. 
 & P. 452 ; Warwick v. Bruce, 2 M. & S. 205 ; Evans v. Roberts, 5 B. A 
 C. 836 ; Stewart V. Doughty, 9 Johns. 108 ; Austin v. Sawyer, 9 Cow. 40 ; 
 Powell v. Rich, 31 111. 469; Graff v. Fitch, 58 111. 377. See Ross v. 
 Cook, 80 Pac. Rep. 38. 
 
 o Fulwood's Case, 4 Rep. 66 ; Dart v. Dart, 7 Conn. 255 ; Baylor v. 
 Commonwealth, 40 Pa. St. 37 ; 3 Washburn on Real Prop. 348. 
 
 i Stover v. Eycleshimer, 46 Barb. 84; Trull v. Eastman, 3 Mete. 121. 
 But this is true only where the conveyance is a deed with covenant of 
 warranty. Gardner v. Pace (Ky.), 11 S. W. Rep. 779. See, also, ante, 
 Sees. 511, 512. And see as to a deed not to be delivered until the 
 grantor's death. Thompson v. Calhoun, 216 111. 161, 74 N. E. Rep. 775. 
 
 92 Jackson v. Wright, 14 Johns. 193. 
 
 Lindley V. Crombie, 31 JMinn. 232. 
 806
 
 CH. XXIII. ] REQUISITES OF A DEED. 565 
 
 doctrine of estoppel arising on a covenant of title in the 
 deed. 9 * 
 
 565. The consideration. It is sometimes stated as a gen- 
 eral proposition that a consideration, good or valuable, is 
 necessary to be acknowledged or proved, in order to pass the 
 title to real estate. Without qualification and explanation, 
 this is incorrect and misleading. All common-law convey- 
 ances, properly so-called, which operate by transmutation of 
 possession, or as grants, such as feoffments, releases, etc., and 
 modern statutory conveyances, where the statute does not pro- 
 vide otherwise, will be effectual to pass the legal estate of any 
 interest in lands, and, except in the case of the grant of a fee 
 by a common-law conveyance, the equitable estate also, with- 
 out resting upon any consideration whatever. 95 And where a 
 deed can operate both as a common-law conveyance and as a 
 conveyance under the Statute of Uses, the want of a con- 
 sideration will not prevent it from passing the legal title as 
 a common-law conveyance. 96 A common-law conveyance 
 passes the legal title without a consideration, but if the es- 
 tate granted is a fee simple, since it is presumed under the 
 doctrine of resulting uses, that a man will not part with the 
 beneficial interest in real property without receiving some con- 
 sideration therefor, the use or equitable interest therein re- 
 sults to the grantor, and the Statute of Uses draws the legal 
 seisin out of the grantee and revests it in the grantor. 97 But 
 this is merely a legal presumption, and may be rebutted by 
 other evidence appearing in the deed and showing a contrary 
 intention on the part of the grantor. 98 For this reason it is 
 
 04 See ante, Sees. 511, 512. 
 
 5 Green t?. Thomas, 11 Me. 318; Laberee v. Carlton, 53 Me. 212; 
 Boynton v. Rees, 8 Pick. 332; Winans v. Peebles, 31 Barb. 380; Taylor 
 v. King, 6 Munf. 358; Doe v. Hurd, 7 Blackf. 510; Pierson v, Arm- 
 strong, 1 Clark (Iowa) 282; Jackson v. Dillon, 2 Overt. 261. 
 
 Cheney v. Watkins, 1 Ear. & J. 527; Den v. Hanks, 5 Ired. 30; 
 Poe r. Domec, 48 Mo. 481. See ante, Sees. 544, 548. 
 
 f>" See ante, Sec. 329. 
 
 o" Sec ante, Sec. 329. 
 
 807
 
 565 REQUISITES OF A DEED. [PART III. 
 
 customary in Massachusetts, and, perhaps, in other States, in 
 the ordinary deed, to grant the premises to the grantee and 
 his heirs, to his and their use. The employment of the itali- 
 cised clause excludes the idea of a resulting use." Mr. Wil- 
 liams says: "All that was ultimately effected by the Statute 
 of Uses was to import into the rules of law some of the then 
 existing doctrines of the courts of equity, and to add three 
 words, to the use, to every conveyance." 1 It is, however, dif- 
 ferent with conveyances which operate under the Statute of 
 Uses, such as bargain and sale, covenant to stand seised, lease 
 and release. For reasons already explained, 2 in all three of 
 these conveyances a consideration is necessary, in order to 
 raise in the grantee the use which the statute is to execute. 
 In a bargain and sale, or lease and release, a valuable con- 
 sideration was necessary, while a good consideration was suffi- 
 cient to support a covenant to stand seised. 3 But the valu- 
 able consideration need not be substantial or adequate, in 
 order to pass title as between the parties.* In Missouri it 
 seems doubtful that a valuable consideration must be ac- 
 knowledged or proved in a bargain and sale. 5 And in Ten- 
 nessee it has been held unnecessary under their statute to 
 acknowledge a consideration in any deed. 6 But if there be a 
 good consideration between the parties, although the deed be 
 
 2 Washburn on Heal Prop. 440; Williams on Real Prop. 188; 2 
 Sand, on Uses, 64-69. 
 
 1 Williams on Real Prop. 159, 160. 
 
 2 See ante, Sees. 330, 539, 542. 
 
 3 Goodspeed v. Fuller, 46 Me. 141 ; Jackson v. Florence, 16 Johns. 47 ; 
 Okison V. Patterson, 1 Watts & S. 395; Boardman v. Dean, 34 Pa. St. 
 252 ; Cheney v. Watkins, 1 Harr. & J. 527 ; Kinnebrew v. Kinnebrew, 35 
 Ala. 636. 
 
 *Diefendorf v. Diefendorf, 8 N. Y. S. 617. "A conveyance of land 
 in consideration of love and affection is valid between the parties." 
 McKee V. West (Ala. 1904), 37 So. Rep. 740. 
 
 s Perry v. Price, 1 Mo. 553. That is because the same deed may 
 operate as a feoffment, since the delivery and registration of the -deed 
 are equivalent to livery of seisin. See also Poe v. Domec, 48 Mo. 441. 
 
 6 Jackson v. Dillon, 2 Overt. 261. See also Fetrow v. Merriweather, 
 53 111. 278. 
 
 808
 
 CH. XXni.JJ REQUISITES OF A DEED. 565 
 
 P 
 
 in form a bargain and sale, it will be treated as a covenant to 
 stand seised. 7 And although a consideration is generally nec- 
 essary to the validity of deeds under the Statute of Uses, it 
 is not necessary that the consideration should actually be 
 passed to the grantor if the receipt of a proper consideration 
 is acknowledged by him in the deed. But it must be ac- 
 knowledged in the deed, or proved aliunde to have actually 
 passed. 8 The acknowledgment of the consideration is only 
 prima facie evidence of the character and amount of the con- 
 sideration. And if one is expressed, another consideration 
 may be proved, if it be not inconsistent with or contradictory 
 of the one expressed. 9 But no parol evidence will be ad- 
 mitted to prove that the consideration acknowledged in the 
 deed was never paid, in order to invalidate the deed between 
 the grantor and grantee. 10 The amount acknowledged is pre- 
 sumed to be the true consideration agreed upon; but this is 
 not conclusive. In an action to enforce the payment of the 
 
 7 See ante, Sees. 540, 542, 548. 
 
 s Jackson v. Alexander, 3 Johns. 434 ; Jackson v. Pike, 9 Cow. 69 ; 
 Jackson v. Leek, 19 Wend. 339; Den v. Hanks, 5 Ired. 30; Toulmin v. 
 Austin, 5 Stew. & P. 470; Young v. Ringo, 1 B. Mon. 30. But see 
 Boardman v. Dean, 34 Pa. St. 252. The acknowledgment of a considera- 
 tion will be sufficient to raise a use only when it is under seal. In 
 ' order, therefore, that a bargain and sale may create a use and pass the 
 legal title by instrument in writing not under seal, in conformity with 
 the doctrine laid down in Sec. 549, a consideration must actually pass 
 from the grantee to the grantor. 
 
 Pierce v. Brew, 43 Vt. 295; Drury v. Tremont, etc., Co., 13 Allen 
 171; Miller v. Goodwin, 8 Gray 542; Morris Canal v. Ryerson, 27 N. J. 
 L. 467; Parker V. Foy, 43 Miss. 260; Rabsuhl v. Lack, 35 Mo. 316; Har- 
 per v. Perry, 28 Iowa 63. Time of payment of consideration is not 
 usually of such importance as to avoid a deed, in equity. Cosby r. 
 Honaker (W. Va. 1905), 50 S. E. Rep. 610. But see, where vendor 
 covenanted to convey land he did not own, Webb v. Honchon, 102 
 N. W. Rep. 1127. 
 
 10 Trafton v. Hawes, 102 Mass. 541 ; Wilkinson v. Scott, 17 Mass. 257 ; 
 Bassett v. Bassett, 55 Me. 127; Rockwell v. Brown, 54 N. Y. 213; Mur- 
 dock v, Gilchrist, 52 N. Y. 246; Mendenhall v. Parish, 8 Jones L. 108; 
 Lowe v. Weatherley, 4 Dev. & B. 212; Lake t;. Gray, 35 Iowa 462; 
 Coles v. Soulsby, 21 Cal. 47; Rhim v. Ellen, 36 Cal. 362. 
 
 809
 
 566 REQUISITES OF A DEED. [PART III. 
 
 consideration a different amount may be established by parol 
 evidence, and the acknowledgment of the receipt of the con- 
 sideration is no bar to its recovery. The recital of the con- 
 sideration in a deed is only conclusive as to the fact that there 
 was a consideration to the deed. 11 
 
 566. Voluntary and fraudulent conveyances. Although a 
 consideration may not be necessary to make a valid convey- 
 ance, as between the parties and their privies, the question 
 presents a different phase in respect to the creditors of the 
 grantor. Questions of this kind arise under the statutes 13 
 Eliz. ch. 5, and 27 Eliz. ch. 4, which have been substantially 
 re-enac.ted in all the States of this country. The statutes are 
 said to be affirmatory of the common law. Whether this be 
 so is a matter of very little importance. Under the statutes, 
 if a conveyance of lands is made without a substantial valu- 
 able consideration, while the grantor is in debt, under certain 
 circumstances at least, existing creditors can avoid the con- 
 veyance, and satisfy their demands by proceeding against the 
 land. If the conveyance is to any one except a child or wife, 
 or in other words, where there is not even a good consider- 
 ation passing between the parties, the conveyance is in any 
 case void as against existing creditors. 12 But in a voluntary 
 conveyance to a wife or child, if at the time of the convey- 
 ance sufficient was left in the hands of the grantor to amply 
 secure existing creditors, the conveyance will nevertheless be 
 
 "Goodspeed V. Fuller, 46 Me. 141; Bassett v. Bassett. 55 Me. 127; 
 Pierce v. Brew, 43 Vt. 295 ; Miller v. Goodwin, 8 Gray 542 ; Murdock v. 
 Gilchrist, 52 N. Y. 246; Grout v. Townsend, 2 Denio 335; Morris Canal 
 V. Ryerson, 27 N. J. L. 467; Parker v. Foy, 43 Miss. 260; Rabshul r. 
 Lack, 35 Mo. 316; Rhim v. Ellen, 36 Cal. 362; Gaze v. Hoyt, 58 Vt. 
 536; Mills v. Allen (Mills V. Dow's Admr.), 133 U. S. 423, 10 S. Ct. 
 413. See, for inadequate consideration, as a ground for avoidance of 
 deed, Stevens v. Osburn (Tenn. 1901), 1 Tenn. Ch. App. 213. 
 
 12 Sexton V. Wheaton, 8 Wheat. 229; Hinde's Lessee v. Lon^worth, 11 
 Wheat. 199; Lerow v. Wilmarth, 9 Allen 386; Washband v. Washband, 
 27 Conn. 424; Doe v. Hurd, 7 Blackf. 510; Mercer v. Mercer, 29 Iowa 
 557; Bullitt u. Taylor, 34 Miss. 708. 
 810
 
 CH. XXIII.] REQUISITES OP A DEED. CC3 
 
 good. But if the grantor is insolvent, then it may be avoided 
 by existing creditors. 13 Subsequent creditors have no interest 
 in such conveyances, and cannot avoid them unless they have 
 been made with an actual fraudulent intent, 14 and then they 
 may be avoided by subsequent as well as existing creditors. 15 
 And even where the consideration is valuable, if it is done 
 with a fraudulent intent, and the grantee participates in the 
 fraud, the deed can be avoided by creditors. But if the 
 grantee is an innocent purchaser for value, he acquires a 
 good title free from the claims of the creditors. 18 Voluntary 
 conveyances are those which do not rest upon a valuable con- 
 sideration. And under the term ' ' valuable consideration ' ' the 
 law includes everything possessing a pecuniary value and like- 
 wise a promise to marry, as well as actual marriage. Convey- 
 ances possessing any one of these considerations are not volun- 
 tary. 17 Although the valuable consideration must be sub- 
 stantial, it need not be adequate in order to make the con- 
 
 isLerow V. Wilmarth, 9 Allen 386; Pomeroy v. Bailey, 43 N. H. 118; 
 Van Wyck v. Seward, 6 Paige 62; Bridgford v. Riddel, 55 111. 261; 
 Pratt v. Myers, 56 111. 24 ; Stewart v. Rogers, 25 Iowa 395 ; Baldwin v. 
 Tuttle, 23 Iowa 74. 
 
 i*Thacher V. Phinney, 7 Allen 150; Beal V. Warren, 2 Gray 447; 
 Trafton v. Hawes, 102 Mass. 541; Lormore v. Campbell, 60 Barb. 62; 
 Stone V. Meyers, 9 Minn. 311. 
 
 IB Marston v. Marston, 56 Me. 476; Parkman v. Welch, 19 Pick. 231; 
 Coolidge V. Melvin, 42 N. H. 521; Redfield v. Buck, 35 Conn. 329; Paulk 
 v. Cooke, 39 Conn. 566; Williams v. Davis, 69 Pa. St. 21; Pratt v. 
 Myers, 56 HI. 24; Bridgeford V. Riddle, 55 111. 261; Bullitt V. Taylor, 
 34 Miss. 740; Herschefeldt v. George, 6 Mich. 466. "As to subsequent 
 debts, the creditor who assails a voluntary conveyance must show cir- 
 cumstances justifying the presumption that the intent of the conveyance 
 was fraudulent, before the land conveyed can be subjected to his debt." 
 Frazer v. Frisbie Furniture Co. (Ky. 1905), 86 S. W. Rep. 539, 27 Ky. 
 Law Rep. 688^ 
 
 ' Oriental Bank v. Haskins, 3 Mete. 340; Somes v. Brewer, 2 Pick. 
 184; Wadsworth V. Williams, 100 Mass. 131; Clapp v. Tirrell, 20 Pick. 
 247; Verplanck v. Sterry, 12 Johns. 552; Carpenter v. Murin, 42 Barb. 
 300; Wright v. Howe!!, 35 Iowa 292. 
 
 " Prodgers V. Langham, 1 Sid. 133; Smith v. Allen, 5 Allen 458; 
 Huston v. Cantril, 11 Leigh 176; Rockhill c. Spraggs, 9 Ind. 32. 
 
 811
 
 567 REQUISITES OF A DEED. [PART III. 
 
 veyance good against creditors. 18 It is further necessary, in 
 order that a conveyance may be avoided by creditors, that the 
 thing conveyed must be subject to levy and sale under exe- 
 cution. The conveyance of a homestead without consider- 
 ation cannot be avoided by creditors for being voluntary. 19 
 
 567. Operative words of conveyance. To make a com- 
 plete and valid conveyance, it is also necessary that the deed 
 should contain what are termed operative words of convey- 
 ance, i, e., words which clearly manifest the intent of the 
 grantor to part with his interest or estate in the land. It has 
 been shown more at length in a previous chapter what are the 
 technical operative words usually employed in the different 
 kinds of common-law and statutory conveyances, 20 and noth- 
 ing further in respect to them need be added here. The deed 
 in general use in all the States contains ordinarily the words 
 "give, grant, bargain, and sell," and this deed may be con- 
 strued to be a primary or secondary conveyance, a common- 
 law conveyance, or one under the Statute of Uses, according 
 as one or the other construction would best effectuate the in- 
 tention of the parties. 21 Not only is this the rule, but it is 
 not even necessary to use the technical operative words in any 
 
 is Washband v. Washband, 27 Conn. 424 ; Sexton v. Wheaton, 8 
 Wheat. 229; Hinde's Lessee v. Longworth, 11 Wheat. 199; Reade v. Liv- 
 ingston, 3 Johns. Ch. 500; Bullitt v. Taylor, 34 Miss. 708; Mercer v. 
 Mercer, 29 Iowa 557; Doe V. Hurd, 7 Blackf. 510. " Inadequacy of con- 
 sideration is generally held to be evidence of fraud, but not necessarily 
 conclusive." F. & M. Schaefer Brewing Co. v. Moebs (Mass. 1905), 
 73 N. E. Rep. 858, 187 Mass. 571. 
 
 iGassett v. Grout, 4 Mete. 490; Danforth v. Beattie, 43 Vt. 138; 
 W T ood v. Chambers, 20 Texas 254; 3 Washburn on Real Prop. 334. 
 But see contra, Sec. 126, note. A conveyance of the homestead cannot 
 be assailed in most of the States, by a creditor. Gibson t. Barrett 
 (Ark. 1905), 87 S. W. Rep. 435; Isbell v. Jones (Ark. 1905), 88 S. W. 
 Rep. 593; Glasser v. Crittenden (Mich.), 103 N. W. Rep. 601; Reed 
 Bros. v. Nicholson (Mo.)> 88 S. W. Rep. 71; Matador Co. v. Cooper 
 (Texas), 87 S. W. Rep. 235. 
 
 20 See ante, Ch. XXII, Sec. 3. 
 
 21 See ante, Sec. 548. 
 
 812
 
 CH. XXIII.] REQUISITES OF A DEED. 568 
 
 kind of conveyance, although it is advisable to do so to re- 
 move all doubt as to the validity of the conveyance. Any 
 words, although not recognized as formal or technical words 
 of conveyance, will be sufficient, if they establish clearly the 
 intention to transfer the estate. 22 Thus, where the grant was 
 to A. and his heirs, provided if A. died in his minority with- 
 out issue, then the property was to go to the issue of B., the 
 word go was held sufficient, in connection with the previous 
 grant, to pass the estate to the issue of B. 23 And the word 
 alien has been held sufficient to pass an estate in reversion, 
 where the conveyance would not operate as a bargain and sale, 
 for the want of enrollment. 24 On the other hand, a deed, in 
 which the only words of conveyance were "sign over," was 
 held to be invalid. 25 So, likewise, the word "reserve" was 
 held to be insufficient. 26 In like manner, it would not be fatal 
 to the validity of the deed if the operative words are in the 
 past, instead of the present tense, for example, "has given 
 and granted," instead of "do give and grant," but it is the 
 prevailing custom in most parts of this country to use both 
 tenses, viz. : have given and granted and do hereby give and 
 grant, althouerh the Dast tense is mere surplusage. 27 
 
 568. Execution, what constitutes. By the execution of 
 a deed is here meant the various formalities required by law 
 
 22 Roe v. Tranmarr, 2 Wils. 75 ; a. c. Smith's Ld. Cas. ; Ivory v. 
 Burns, 56 Pa. St. 300; Spencer v. Bobbins, 106 Ind. 580; Wilson V. 
 Albert, 89 Mo. 537, 1 S. W. Rep. 209; Wilcoxson v. Sprague, 51 CaL 
 640; 1 Wood on Conveyancing, 203; 2 Rolle. Abr. 789, pi. 30. See 
 Shep. Touch. 82, 222; Cornish on Purchase Deeds, 29; 3 Washburn 
 Real Prop. 379; Schmitt v. Giovanari, 43 Cal. 617; Rowe v. Beckett, 30 
 Ind. 154; and see Folk v. Varn, 9 Rich. Eq. 303; Patterson v. Carneal, 
 3 Marsh. A. K. 619. 
 
 2 Folk v. Varn, 9 Rich. Eq. 303. 
 
 2* Adams c. Steer, Cro. Jac. 210. 
 
 "McKhmey v. Settles, 31 Mo. 541; Webb v. Mullins, 78 Ala. 111. 
 
 28 Hall t?. Hall (Miss.), 5 So. Rep. 523; Davis v. McGrew, 82 Cal. 
 135 ("Waive and renounce"). 
 
 3 Washburn on Real Prop. 378 ; Pierson v. Armstrong. 1 Iowa 292. 
 
 813
 
 569 REQUISITES OF A DEED. [PART 111. 
 
 for the completion of it, which include signing, sealing, at- 
 testation and acknowledgment. And, according to a late 
 authority, delivery also. 28 A deed may be executed either by 
 the grantor himself, or by an agent duly authorized to act for 
 him. 
 
 569. Power of attorney. It requires, however, to enable 
 an agent to execute a deed for his principal, a power of at- 
 torney under seal, the rule of agency being that the power 
 must be of the same grade of instrument as that which the 
 agent is to execute. 29 This statement must be qualified by the 
 remark that, if it is executed by the agent in the presence 
 of the principal, it is constructively the manual act of the 
 principal, and needs no power of attorney under seal. 30 This 
 is not only the rule in regard to ordinary agencies, but it ap- 
 plies also to the general agency of partners in a partnership. 
 Without an express authority granted by a power of attorney 
 under seal, the conveyance by one partner of partnership 
 lands, although in the name of the partnership, will pass only 
 his interest or share in the property. And a subsequent rati- 
 fication, to be effective, must also be by an instrument under 
 
 28Colee v. Colee, 122 Ind. 109, 23 N. E. Rep. 687. See, Parken v. 
 Safford (Fla. 1904), 37 So. Rep. 567; Peters v. Berkemeier (Mo. 1904), 
 S. W. Rep. 747. 
 
 2 Livingston V. Peru Iron Co., 9 Wend. 522; Hanford v. McNair, 9 
 Wend. 54; Doe V. Blacker, 27 Ga. 418; Rhode V. Louthain, 8 Blackf. 
 413; Territory v. Klee (Wash.), 23 Pac. Rep. 417. See Skinner v. 
 Dayton, 19 Johns. 513, 5 Am. Dec. 286; Cady v. Shepherd, 11 Pick. 400, 
 22 Am. Dec. 379; Hanford t>. McNair, 9 Wend. 54, 19 Am. Dec. 529; 
 Blood v. Goodrich, 9 Wend. 68, 24 Am. Dec. 121; McNaughten V. Part- 
 ridge, 11 Ohio 223, 38 Am. Dec. 731; Gordon V. Bulkley, 14 Serg. & R. 
 331; Hunter V. Parker, 7 Mees. & W. 322. See, for acts in excess of 
 power, in sale of land, Rogers v. Tompkins (Texas 1905), 87 S. W. 
 Rep. 379. 
 
 so Ball v. Duntersville, 4 T. R. 313; King v. Longnor, 4 B. & Ad. 647; 
 McKay v. Bloodgood, 9 Johns. 285; Mutual, etc., Ins. Co., v. Brown, 30 
 N. J. Eq. 193; King v. Longnor, 4 Barn. & Adol. 647; Lovejoy V. Rich- 
 ardson, 68 Me. 386; Lord Lovelace's Case, Jones, W. 268. 
 
 814
 
 CH. XXIII.] REQUISITES OF A DEED. 569 
 
 seal. 31 In respect to the manner in which the deed must be 
 executed, when done by an agent, the law is extremely tech- 
 nical. In the execution, the act must appear to be that of 
 the principal, and the deed must show through whom the 
 principal acts. It must be the principal's deed; he must 
 grant and convey the land. If the premises of the deed are 
 in the name of the agent, although he signs the deed as agent, 
 and the deed contains a recital of his authority, it will not be 
 the deed of the principal, and hence inoperative. 32 However, 
 such a deed would be evidence of a sale having been made, and 
 would vest in the grantee an implied equitable title, which 
 could be converted into a legal title by an action for specific 
 performance or for reformation of the deed. 33 The proper 
 mode of signing is A. (principal) by B. (agent) ; and there 
 are some authorities which hold that no other signature will 
 be a good execution. But the rule has of late been some- 
 what relaxed, so that where the deed purports in terms to be 
 the act of the principal, and the signature is B. (agent) for A. 
 (principal), or B. as the attorney of A., and the like, it will 
 be a valid execution. 3 * But the deed must be in the name 
 of the principal and it must be sealed with his seal. 35 If 
 signed by the agent without affixing the principal's name, it 
 will be a defective execution; and so also, if the principal's 
 
 si Parsons on Part. 369 ; 3 Washburn on Real Prop. 262. In Iowa a 
 parol ratification is held to be sufficient to effectuate the conveyance 
 by one partner. Haynes v. Seacrest, 13 Iowa 455. But a ratification 
 must be made with full notice of all the facts. Quale v. Hazel (S. D. 
 1905), 104 N. W. Rep. 215. 
 
 32 3 Washburn on Real Prop. 277 ; Copeland V. Mercantile Ins. Co., 6 
 Pick. 198; Squier V. Morris, 1 Lans. 282; Townsend . Smith, 4 Hill 
 351; Martin V. Flowers, 8 Leigh 158; Briggs v. Partridge, 7 J. & Sp. 
 339. 
 
 33 Joseph v. Fisher, 122 Ind. 399. 
 
 84Wilkes v. Back, 2 East 142; Mussey v. Scott, 7 Gush. 216; Jones 
 v. Carter, 4 Hen. & M. 196; Hunter v. Miller, 6 B. Mon. 612; Martin v. 
 Almond, 25 Mo. 313; Wilkinson V. Getty, 13 Iowa 157. 
 
 35 Elwell v. Shaw, 16 Mass. 42 ; Townshend v. Corning, 23 Wend. 439 ; 
 Echols v. Cheney, 28 Cal. 160; Morrison v. Bowman, 29 Gal. 352. 
 
 815
 
 570 REQUISITES OF A DEED. [PART III. 
 
 name is signed without mentioning that it was done by at- 
 torney. 38 But it has been held that a recital in the deed, that 
 it was executed by the grantor by attorney, does away with 
 the necessity of the signature of the agent. 37 To be good the 
 principal must also be alive. A common-law power of at- 
 torney dies with the principal, and the deed by the attorney 
 after the death of the principal is absolutely void. 38 But the 
 reader must here bear in mind the important distinction al- 
 ready explained between powers of attorney, a common-law 
 authority, and powers of appointment, operating under the 
 Statute of Uses and the Statute of Wills. The latter vest 
 upon their creation an irrevocable equitable interest in the 
 donee, which survives the principal, and is executed in the 
 name of the donee. Authors very often speak of powers 
 coupled with an interest, as distinguishable from common-law 
 powers of attorney, in respect to the irrevocability of the 
 former. Except as a power of appointment under the Stat- 
 ute of Uses and the Statute of Wills, there is no such power 
 in the common-law of real property as one coupled with an 
 interest. 39 
 
 570. Power of attorney granted by married woman. It is 
 the settled law in a number of the States that a married 
 woman cannot make a valid power of attorney, authorizing 
 the conveyance of her lands, even though the power is exe- 
 cuted jointly with her husband, and acknowledged by her in 
 the manner pointed out by the statute for the acknowledg- 
 
 Elwell v. Shaw, 16 Mass. 42; Wood v. Goodridge, 6 Gush. 117; 
 Thurman v. Cameron, 24 Wend. 90. 
 
 ST Devinney v. Reynolds, 1 Watts & S. 328. 
 
 38 Harper v. Little, 2 Me. 14 ; Bergen v. Bennett, 1 Games' Gas. 15 ; 
 Hunt v. Rousmaniere, 2 Mason 248; Wilson v. Troup, 2 Cow. 236; 
 Mansfield v. Mansfield, 6 Conn. 562 ; Ferris v. Irving, 28 Cal. 648 ; Frink 
 V. Roe, 70 Cal. 296. Death does not revoke a power coupled with an 
 interest in the land. Fisher v. Southern L. & T. Co. (N. C. 1905), 50 
 8..E. Rep. 592. 
 
 3 See ante, Sec. 402. See, also, Norton v. Whitehead, 84 Cal. 263; 
 Fisher v. Southern L. & T. Co., 50 S. E. Rep. 592. 
 816
 
 CH. XXIII.]) REQUISITES OF A DEED. 571 
 
 merit of her deeds. 40 And a deed by the husband's attorney, 
 conveying lands of the wife, which is executed and ac- 
 knowledged by the wife, has also been held invalid. 41 But 
 it is difficult to discover any reason for not permitting her to 
 do by an agent what she is authorized to do herself, provided 
 the formalities. required by statute for the execution of deeds 
 by married women have been complied with in the execution 
 of the power of attorney. And such a power has been ex- 
 pressly recognized by statute in some of the States, while in 
 others it seems to be taken for granted that she may execute 
 a valid power of attorney. 42 ' It is, however, apparently well 
 settled that a power of attorney executed by a feme sole will 
 be revoked by her subsequent marriage. 43 
 
 571. Signing. At common law it was not necessary for 
 the parties to sign the deed, although under the Saxon laws 
 the deeds were subscribed with the sign of the cross, and were 
 not required to be sealed. After the Norman conquest sealing 
 was invariably required, but signing became unnecessary. 44 
 
 40 Allen 0. Hooper, 50 Me. 373; Holladay v. Daily, 19 Wall. 609; 
 Sumner v. Conant, 10 Vt. 9; Earle V. Earle, 1 Spen. 347; Kearney f. 
 Macomb, 16 N. J. Eq. 189; Lewis v. Coxe, 5 Harr. 401. See Dawson r. 
 Shirley, 6 Blackf. 531. 
 
 41 Toulmin v. Heidelberg, 32 Miss. 268. There is no presumption of 
 agency by the husband, from the fact of matrimony. McNemor v. 
 Cohn, 115 111. App. 31. 
 
 42 Roarty v. Mitchell, 7 Gray 243 ; Gridley v. Wynant, 23 How. 503 ; 
 Jones v. Bobbins, 74 Texas 615. In Hardenburg v. Larkin, 47 N. Y. 
 113, it was held that the common law did not permit a married woman 
 to execute a deed by attorney; but she is now authorized by statute to 
 do so. In Dawson v. Shirley, 6 Blackf. 531, it was held that a married 
 woman could not acknowledge her deed by attorney. " A married 
 woman, her husband joining therein, may make a valid power of attor- 
 ney to convey her lands." Linton v. Moorhead (Pa. 1904), 59 Atl. Rep. 
 264, 209 Pa. 646. 
 
 48 3 Washburn on Real Prop. 259 ; 2 Kent's Com. 645 ; Judson t?. 
 Sierra, 22 Texas 365. 
 
 4 3 Washburn on Real Prop. 270; Co. Lit. 171 b; Van Santwood v. 
 Sandford, 12 Johns. 198; Hammond v. Alexander, 1 Bibb 333; Taylor 
 v. Morton, 5 Dana 345; 2 Bla. Com. 309; Williams on Real Prop. 152. 
 
 62 817
 
 571 REQUISITES OF A DEED. [PART III. 
 
 It seems that in some of the States to a very late day a deed 
 is recognized as a valid conveyance without being signed by 
 the parties, but in most of them, if not all, signing is abso- 
 lutely required, and in all it is customary and advisable. 45 
 Sometimes the statute requires the deed to be subscribed. In 
 that case the parties must write their names at the bottom 
 of the instrument. But, generally, in the absence of such a 
 statute, the signature in any part of the deed would suffice; 
 and, although it is usual for the grantor to write the signature 
 himself, it is not always necessary. To enable an ignorant 
 person to execute a deed one may, at his request, and in his 
 presence, sign his name, and, by affixing a mark to the signa- 
 ture, the grantor adopts the signature as his own, and the 
 deed will be valid. 46 It is not even necessary that the grantor 
 should affix his mark in order to adopt the signature as his 
 own. If done in his presence, the signature by the author- 
 ized agent is theoretically the act of the principal, and the 
 deed is valid, though it is not shown that the grantor has been 
 disabled by any cause from signing himself. 47 And in one 
 case it was held that where a wife signed her husband's name 
 to a deed in his absence, and he afterwards acknowledged it as 
 his act and deed, and delivered it to the grantee, the subse- 
 quent acknowledgment and delivery constituted a ratification, 
 or rather an adoption, of the signature as his own, and that 
 the deed was properly executed. 48 This case was different 
 from the case where the entire execution of the deed was in- 
 
 Sicard v. Davis, 6 Pet. 124; Clark v. Graham, Wheat. 519; Hutch- 
 ins v. Byrnes, 9 Gray 367; Isham v. Benington, 19 Vt. 232; Elliott v. 
 Sleeper, 2 N. H. 529; McDill V. McDill, 1 Dall. 64; Plummer v. Russell, 
 2 Bibb 174; Chiles v. Conley, 2 Dana 21. In Alabama, a deed is valid, 
 when acknowledged, although not signed. Lloyd V. Cotes (1905), 38 
 So. Rep. 1022. 
 
 < Baker v. Dening, 8 Ad. & El. 94; Truman v. Lore, 14 Ohio St. 154. 
 
 IT Ball v. Duntersville, 4 T. R. 313; Frost V. Deering, 21 Me. 156; 
 Gardner v. Gardner, 5 Cush. 483; Wood v. Goodridge, 6 Cush. 117; 
 Burns v. Lynde, 6 Allen 309; McKay v. Bloodgood, 9 Johns. 285; Kime 
 T. Brooks, 9 Ired. 219; Videau v. Griffin, 21 Cal. 392. 
 
 48 Bartlett v. Drake, 100 Mass. 175. 
 818
 
 CH. XXIII.] REQUISITES OP A DEED. 572 
 
 trusted to another. Then, as has been explained in a pre* 
 ceding paragraph, a power of attorney under seal would have 
 been required. 
 
 572. Sealing. At common law sealing was an important 
 part of the execution, although, as has been stated, signing 
 was dispensed with. 49 This circumstance arose, no doubt, 
 from the fact that very few people in t the early days of the 
 common law could write and sign their names, and it became 
 customary to identify their solemn deed by attaching their 
 seals, which were peculiar and easily recognized. Although 
 it has now become a mere formality, it is still held to be in- 
 dispensable in most of the States, possibly in all except Cali- 
 fornia, Colorado, Kentucky, Iowa, Alabama, Kansas, Louisiana, 
 Missouri, and Texas, where by statute seals have been abolished 
 as a requisite of a deed. 00 The word "deed" means an in- 
 strument under seal, and, except in those States where seals 
 are by statute dispensed with, no instrument can be called a 
 deed without being sealed, whatever may be the intention of 
 the parties. 51 But there need be no reference in the attesta- 
 tion clause of the deed to the sealing, if the seal is actually 
 affixed, although it is usual to state that the party has set his 
 hand and seal thereto. 52 It is not necessary for the party to 
 affix the seal himself. It may be done by any one else, pro- 
 
 < 2 Bla Com. 309; 3 Washburn on Real Prop. 270, 271. Sealing is 
 held to be essential, in Florida. Parken v. Safford (1904), 37 So. Rep. 
 567. 
 
 83 Washburn on Real Prop. 271. See Shelton f. Armour, 13 Ala. 
 647; Smith V. Dall, 13 Cal. 510; Jones V. Crawford, 1 McMull373; Good- 
 lett V. Hensell, 56 Ala. 346; Simpson v. Mundee, 3 Kan. 172; Courand v. 
 Vollmer, 31 Texas 397. See also, Bower v. Chambers, 53 Miss. 259. 
 
 BI Warren f. Lynch, 5 Johns. 239; Jackson V. Wood, 12 Johns. 13; 
 Jackson v. Wendel, 12 Johns. 355; Alexander v. Polk, 39 Miss. 737; 
 Deming r. Bullitt, 1 Blackf. 241; McCabe v. Hunter, 7 Mo. 355; Davis 
 v. Judd, 6 Wis. 85; Parken v. Safford (Fla. 1904), 37 So. Rep. 567. 
 
 2 State v. Peck, 53 Me. 299; Bradford v. Randall, 5 Pick. 496; Mill 
 Dam Foundry v. Hovey, 21 Pick. 417; Taylor v. Glaser, 2 Serg. & R. 
 502. 
 
 819
 
 372 REQUISITES OF A DEED. [PART III. 
 
 vided he is authorized to do so, or the unauthorized act is 
 subsequently ratified and adopted by the acknowledgment and 
 delivery of the deed. 53 And one seal may be adopted as the 
 seal of all the parties to the deed. 54 In respect to what will 
 constitute a sufficient sealing the law is not uniform. At com- 
 mon law an impression upon wax or some tenacious substance 
 was required. Lord Coke says: "It is required that the 
 deed, charter, or writing, must be sealed, that is, have some 
 impression upon wax ; for sigillum est cera impressa, quia cera 
 sine impressione non est sigillum." 65 In the New England 
 States, and New Jersey, unless changed by recent legislation, 
 the common-law seal is required, although probably in no 
 place would it be necessary to use wax or substance of that 
 character, an impression of a seal upon paper being sufficient. 
 At least such is the opinion of the United States Supreme 
 Court. 58 But in* the majority of the States a simple scroll 
 with " L. S. " or the word ' ' seal ' ' written in it, is a sufficient 
 
 3Koehle*r v. Black River, etc., Co., 2 Black 715; Elwell v. Shaw, 16 
 Mass. 42 ; Co. Lit. 6 a ; 3 Washburn on Real Prop. 272. 
 
 54 Bradford r. Randall, 5 Pick. 496; Tasker v. Bartlett, 5 Gush. 309; 
 Atlantic Dock Co. V. Leavett, 54 N. Y. 35; Lunsford v. La Motte Lead 
 Co., 54 Mo. 426; Burnett v. McCluey, 78 Mo. 676; Carter v. Chaudron, 
 21 Ala. 72; Mackay v. Bloodgood, 9 Johns. 285; Flood v. Yanders, 1 
 Blackf. 102; Bank of Cumberland V. Bugbee, 19 Me. 27; Lambden v. 
 Sharp, 9 Humph. 224. "Under Rev. St. Wis. 1898, Sec. 1176, providing 
 for the execution of tax deeds under the seal of the county, the fact 
 that the seal used bore the words, ' the seal of the county clerk,' did not 
 render the deed invalid." Laughlin v. Kieper (Wis. 1905), 103 N. W. 
 Rep. 264. 
 
 553 Inst. 169. See Warren v. Lynch, 5 Johns. 239; Mill Dam Foun- 
 dry v. Hovey, 21 Pick. 417; Warren V. Lynch, 5 Johns. 239; 3 Caines, 
 362; Beardsley v. Knight, 4 Vt. 471; Tusker V. Bartlett, 5 Cush. 359, 
 364 ; Bradford v. Randall, 5 Pick. 496 ; 4 Kent's Com. 452. 
 
 se pillow v. Roberts, 13 How. 473; Bates v. B. & N. Y. Cent. R. R., 
 10 Allen 254; Pillow v. Roberts, 13 How. 473; s. c. 7 Eng. (12 Ark.) 
 822; Bradford v. Randall, 5 Pick. 495; Bates v. Boston, etc., R. R. Co., 
 10 Allen 251. " Under Laws N. Y. 1896, p. 593, c. 547, which provides 
 that a grant of real estate in fee shall be ' subscribed ' by the grantor, 
 such a deed is not required to be sealed." Fitzpatrick v. Graham (U. 
 S. C. C. A., N. Y., 1903), 122 Fed. Rep. 401. 
 820
 
 CH. XXIH.] REQUISITES OP A DEED. 573 
 
 sealing. 57 But it has been held that to make a scroll a good 
 sealing there must be a recital in the deed that the party has 
 affixed his seal. 58 On the other hand, the recital, without the 
 scroll or some other actual substitute for the common-law seal, 
 would not be a sufficient sealing. 59 
 
 573. Attestation. A further requisite is that the execu- 
 tion be done in the presence of one or more witnesses. At 
 common law this was not necessary, 60 and is still unnecessary 
 
 57 The scroll is a good seal in Arkansas, Colorado, Connecticut, Del- 
 aware, Florida, Michigan, Wisconsin, Minnesota, Oregon, Missouri, 
 Ohio, Texas, Illinois, Mississippi, Georgia, Indiana, Maryland, North 
 Carolina, Pennsylvania, and South Carolina. 3 Washburn on Real 
 Prop. 274, 275; United States v. Stephenson, 1 McLean 462; Relf V. 
 Gist, 4 McCord 267; Cummins V. Woodruff, 5 Ark. 116; Comerford V. 
 Cobb, 2 Fla. 418; Hastings V. Vaughan, 5 Cal. 315; Bradfield v. Mc- 
 Cormick, 3 Blackf. 161; Scruggs v. Brackin, 4 Yerg. 528; Parks V. 
 Hewlett, 9 Leigh 511; Carter V. Penn, 4 Ala. 140; Trasher v. Everhart, 
 3 Gill & J. 234; Commercial Bank v. Ulmann, 18 Miss. (10 Smed. & M.) 
 471 Underwood V. Dollins, 47 Mo. 259; Pratt v. Clemens, 4 W. Va. 443; 
 Taylor V. Morton, 5 Dana 365- Shortridge V. Catlett, 1 Marsh. A. K. 
 587. In Turner V. Field, 44 Mo. 382, the Supreme Court of Missouri 
 held that a piece of colored paper, attached to the deed by mucilage, 
 would be sufficient. By special act, in Missouri, the necessity for a seal 
 in all instruments executed by individuals is abolished. Sess. Laws, 
 Mo. 1891. 
 
 ss Cromwell v. Tate, 7 Leigh 301. But see Ashwell v. Avers, 4 Gratt. 
 283; Bell v. Keefe, 13 La. An. 524; Moore v. Lesseur, 18 Ala. 606; Dem- 
 ing 17. Bullitt, 1 Blackf. 241. See Jenkins v. Hart. 2 Rand. 446; contra, 
 Lewis V. Overby, 28 Gratt. 627; Hudson v. Poindexter, 42 Miss. 304. 
 But see Whitley v. Davis, 1 Swan. 333. See Wittington v. Clarke, 16 
 Miss. (8 Smedes & M.) 480; Hudson V. Poindexter, 42 Miss. 304; 
 Shackleford, C. J., McGuire v. McRann, 9 Smedes & M. 34; Whitting- 
 ton et al. V. Clarke, 8 Smedes & M. 480; Commercial Bank of Manches- 
 ter v. Ullmann, 10 Smedes & M. 411. But a mere scroll is held suffi- 
 cient, in Wisconsin, although the deed specifies a seal. Laughlin v. 
 Kieper, 103 N. W. Rep. 264. 
 
 Alexander 17. Polk, 39 Miss. 737; Taylor v. Glaser, 2 Serg. & R, 
 502, per Telghman, C. J. See also Warren v. Lynch, 5 Johns. 239; Dem- 
 ing V. Bullitt, 1 Blackf. 241; Davis v. Brandon, 1 How. (Miss.) 154. 
 And see also McCarley t?. Tappah County Supervisors, 58 Miss. 483, 749. 
 02 Bla. Com. 307; Dale v. Thurlow, 12 Mete. 157; Thatcher v. Phin- 
 
 821
 
 573 REQUISITES OF A DEED. [PART III. 
 
 in some of the States. 61 But generally, in the United States, 
 witnesses are required, the number varying with the statutory 
 regulation of each State. In some only one witness is re- 
 quired, but the usual number is two. 02 And if the number of 
 witnesses required by law is not obtained, the deed is gen- 
 erally held to be invalid as a legal conveyance, although in 
 New Hampshire, Georgia and Kentucky, the deed without 
 proper attestation is good between the parties, 83 and in Ver- 
 mont and Minnesota, where two witnesses are required, sub- 
 scription by one witness will enable the deed to be used in 
 equity to support an action for specific performance. 64 The 
 witnesses are required in making a proper attestation to sign 
 their names to the instrument, and to witness the execution 
 of it by the grantor. 65 But it is not necessary that it should 
 be executed by the parties in his presence. It is sufficient if 
 the witnesses are requested by the parties to subscribe to the 
 attestation clause, and the signatures on the deed are ac- 
 knowledged by the parties to be theirs. 66 Witnesses to deeds 
 are intended merely to attest the execution of the deed, and 
 
 ney, 7 Allen 149; Craig v. Pinson, Cheves 273; Meuley v. Zeigler, 23 
 Texas 88. 
 
 "Dale v. Thurlow, 12 Mete. 157; Long v. Ramsey, 1 Serg. & R. 73; 
 Wiswall v. Rosa, 4 Port. 321 ; Ingram v. Hall, 1 Hayw. 205. 
 
 2 Clark V. Graham, 6 Wheat. 577; Kingsley v. Holbrook, 45 N. H. 
 320; Wilkins v. Wells, 8 Smed. & M. 325; Shirley v. Fearne, 33 Miss. 
 653; Ross v. Worthington, 11 Minn. 443. "To render a deed affective 
 in conveying an estate, the signing and sealing in the presence of two 
 subscribing witnesses and its delivery are essential." Parken V. Saf- 
 ford (Fla. 1904), 37 So. Rep. 567. 
 
 as Stone v. Ashley, 13 N. H. 38; Hastings v. Cutler, 24 N. H. 481; 
 Kingsley V. Holbrook, 45 N. H. 320; Fitzhugh f. Croghan, 2 J. J. 
 Marsh. 429. See contra, Crane V. Reeder, 21 Mich. 24; Marable v. 
 Mayer, 78 Ga. 60; Loyd V. Ostes (Ala. 1905), 38 So. Rep. 1022. 
 
 *Day V. Adams, 42 Vt. 520; Ross v. Worthington, 11 Minn. 438. 
 
 6 Janea v. Penny, 76 Ga. 796. 
 
 Parke v. Mears, 2 B. & P. 217; Jackson v. Phillips, 9 Cow. 113; 
 Jones v. Robbins, 74 Texas 615; Poole v. Jackson, 66 Texas 380. 
 " Where a husband and wife acknowledge their signatures to a convey- 
 ance, it is valid, though neither actually signed their names." Loyd v. 
 Gates (Ala. 1905), 38 So. Rep. 1022. 
 822
 
 CH. XXIII.] REQUISITES OF A DEED. 574 
 
 cannot, like witnesses to wills, express opinions upon the men- 
 tal capacity of the parties to the deed. 67 Mr. Washburn cites 
 Mr. Barrington to the effect that anciently the witnesses were 
 a necessary part of the jury which was to try the validity of 
 the instrument, and a statute then dispensed with the neces- 
 sity of their presence, when after being duly summoned, they 
 fail to appear. 68 
 
 574. Acknowledgment or probate. As a general rule, it 
 is not required, to make the deed valid, that a certificate of 
 acknowledgment or probate be attached to it. 69 But in Ohio 
 the certificate is necessary to pass the title, and in New York 
 and Texas an unacknowledged deed is not good against sub- 
 sequent purchasers and incumbrancers. 70 And perhaps in all 
 the States the acknowledgment by a married woman is ab- 
 solutely required, and must conform strictly to the require- 
 ments of the statute, in order to bind her. 71 But in all the 
 States, except Colorado and Illinois, in order that a deed may 
 be recorded, and the record furnish constructive notice to sub- 
 sequent purchasers, it must be acknowledged and proved be- 
 fore some officer authorized to take such, acknowledgments, 
 
 67 Dean V. Fuller, 40 Pa. St. 474. 
 
 683 Washburn on Real Prop. 277, citing Barring. St. (4 ed.) 175. 
 
 6 Gibbs V. Swift, 12 Cush. 393 ; Blain V. Stewart, 2 Iowa 383 ; Lake 
 V. Gray, 30 Iowa 415; s. c. 35 Iowa 459; Doe V. Naylor, 2 Blackf. 32. 
 But see Gaskins V. Allen (Md. 1905), 49 S. E. Rep. 919. 
 
 TO Smith V. Hunt, 13 Ohio 260; Genter v. Morrison, 31 Barb. 155; 
 Raggen v. Avery, 63 Barb. 65 ; Morse V. Salisbury, 48 N. Y. 636 ; Meuley 
 v. Zeigler, 23 Texas 93. See Kimmarle V. Houston, etc., R. R. Co., 76 
 Texas 686, 12 S. W. Rep. 698; Trustees Catholic Church v. Manning 
 (Md.), 19 Atl. Rep. 599. As to necessity for acknowledgment of cor- 
 porate land in South Dakota, see, State v. Coughran, 103 N. W. Rep. 31. 
 And for necessity of acknowledgment of deed of individual, in Tenn- 
 essee, see, Robertson v. Newman (Tenn. 1902), 2 Tenn. Ch. App. 181. 
 
 "See Bruce V. Perry, 11 Rich. 121; McBride V. Wilkinson, 29 Ala. 
 662; Corey v. Moore (Va.), 11 S. E. "Rep. 114; Lineberger v. Tidwell, 
 104 N. C. 506, 10 S. E. Rep. 758 ; Coffey v. Hendricks, 66 Texas 676, 2 
 8. W. Rep. 47 ; Witt v. Harlan, 66 Texas 660, 2 S. W. Rep. 41. See, 
 also, Johnson v. Callaway (Texas 1905), 87 S. W. Rep. 178. 
 
 823
 
 574 REQUISITES OF A DEED. [PART III. 
 
 and the certificate of acknowledgment must be indorsed on the 
 deed. 72 And where the recording law, in express terms, re- 
 quires the "execution" of a deed to be acknowledged or 
 proved, the acknowledgment or probate must include proof 
 of delivery as well as of signing and sealing. 73 It must also 
 be signed by the party 'who is proving the execution of the 
 deed. An unsigned acknowledgment is ineffectual. 74 But 
 the deed need not be signed by grantor in presence of the offi- 
 cer. 75 An alteration in the deed enlarging its scope, when 
 made after the execution of an acknowledgment, necessitates 
 the taking of a new acknowledgment. It is different where 
 the alteration restricts the prior scope of the deed. 76 
 
 In some of the States the acknowledgment is required to be 
 made by the grantor, while in others the deed is probated by 
 the oath of one of the witnesses. But only one form of pro- 
 bate is required in any particular deed, in those States in 
 which both are permitted. 77 If the grantor and attesting wit- 
 nesses die before acknowledgment and probate of the deed, it 
 may be probated by proof of genuineness of the signature of 
 one of the attesting witnesses or of the grantor. 78 And if the 
 attesting witness is alive but cannot testify to the due execu- 
 tion of the deed, it may be probated by any one who saw its 
 execution. 79 
 
 The taking of the acknowledgment is a ministerial and not 
 
 723 Washburn on Real Prop. 314; Simpson v. Mundee, 3 Kan. 181; 
 Carpenter v. Dexter, 8 Wall. 582; Woolfolk V. Graniteville Mfg. Co., 22 
 S. C. 332; New England, etc., Co., v. Ober, 84 Ga. 294; Fisher V. 
 Cowles, 41 Kan. 418; Cox v. Wayt, 26 W. Va. 807; Shelton v. Aultman, 
 etc., Co., 82 Ala. 315. 
 
 73 Edwards v. Thorn, 25 Fla. 222. 
 
 74 Carlisle v. Carlisle, 78 Ala. 542; Clark v. Wilson, 27 111. App. 610; 
 s. c. 127 111. 449, 19 N. E. Rep. 860. 
 
 75 Brown v. Swift (Ky.), 1 S. W. Rep. 474. 
 
 76 Webb v. Mullins, 78 Ala. 111. See Gaskins v. Allen (N. C. 1905) , 
 49 S..E. Rep. 919. 
 
 77 Simmons v. Havens, 101 N. Y. 427. 
 
 78 Davis v. Higgins, 91 N. C. 382; Howell v. Ray, 92 N. C. 510. 
 7 Jones v. Hough, 77 Ala. 437. 
 
 824
 
 CH. XXIII.] REQUISITES OF A DEED. 574: 
 
 a judicial act. It is, therefore, no objection to the acknowl- 
 edgment that it was taken by an officer related to the parties, 
 although if he is interested in the conveyance the certificate 
 will be valueless. 80 And where the officer is only authorized 
 to perform his special duties within certain limits of terri- 
 tory, an acknowledgment taken by him without these limits, 
 would, of course, be void. 81 So, also, where the officer's com- 
 mission had expired by limitation, when he took the ac- 
 knowledgment or probate. 82 But the authority of a notary de 
 facto cannot be questioned in a collateral proceeding. 83 A 
 proper certificate should show that all the requirements of the 
 statute were substantially complied with. 84 But if the cer- 
 tificate of acknowledgment is erroneously prepared it may be 
 corrected and made to conform to the facts by the officer 
 
 soBeaman V. Whitney, 20 Me. 413; Withers V. Baird, 7 Watts 227; 
 Stevens V. Hampton, 46 Mo. 408; Bekeman V. Arnold (Mich.), 44 N. 
 W. Rep. 407; Bowden V. Parrish (Va.), 9 S. E. Rep. 616. But see 
 Stevenson v. Brasher (Ky. 1890), 13 S. W. Rep. 175; Corey v. Moore 
 (Va.), 11 S. E. Rep. 114. In one of the Western States a deed was 
 presented for registration, in which the acknowledgment of a married 
 woman, as grantor, was taken by her husband as notary public, and 
 he certified that she was examined separate and apart from her hus- 
 band. It is needless to remark that the deed was not a valid convey- 
 ance. " A deed of trust acknowledged before the grantee named therein 
 as notary public is void." Lance v. Tainter (N. C. 1904), 49 S. E. Rep. 
 111. 
 
 si Lynch v. Livingston, 8 Barb. 463 ; s. c. 6 N. Y. 422 ; Thurman 0. 
 Cameron, 24 Wend. 91; Mut. Life Ins. Co. v. Corey, 54 Hun 493, 7 N. 
 Y. S. 939. Contra,, Odiorne v. Mason, 9 N. H. 30. But in Massachu- 
 setts a magistrate for one county may take acknowledgments in another 
 county. Learned v. Riley, 14 Allen, 109. " In Michigan, under the 
 statute, a notary public of one county may take acknowledgments in 
 another." Lamb v. Lamb (Mich. 1905), 102 N. W. Rep. 645, 11 Detroit 
 Leg. N. 805. 
 
 82 Quimby v. Boyd, 8 Col. 194. 
 
 83 Bullene v. Garrison, 1 Wash. 587. 
 
 s* Chandler v. Spear, 22 Vt. 388; Wood t?. Cochrane, 39 Vt. 544: 
 Tully v. Davis, 30 111. 108; Jacoway v. Gault, 20 Ark. 190; Huff v. 
 Webb, 64 Texas 284; Butler v. Brown, 77 Texas 342, 14 S. W. 136; 
 Owen v. Baker (Mo.), 14 S. W. Rep. 175. 
 
 825
 
 575 REQUISITES OP A DEED. [PART III. 
 
 who took the acknowledgment. 85 In some of the States the 
 certificate is not conclusive evidence of the facts stated therein, 
 but it contains prima facie evidence of its own genuineness, as 
 well as of the facts therein stated. 86 And, no doubt, in all of 
 the States, as between the parties, the certificate may be im- 
 peached for fraud. 87 But in other States the certificate is 
 conclusive against subsequent purchasers as to the facts stated 
 therein. 88 It must be observed that the acknowledgment or 
 probate is intended to evidence the due execution of the deed, 
 and not to supply any of its deficiencies. If the deed is in 
 itself inoperative, on account of some serious deficiency, it 
 cannot be cured by any statements or admissions in the cer- 
 tificate. 89 
 
 575. Reading of the deed, when necessary. Although the 
 reading of the deed to the grantor and grantee can hardly be 
 
 ss Ralston v. Moore, 83 Ky. 571. See Wilson v. Braden (W. Va.), 49 
 S. E. Rep. 409. 
 
 86 Jackson V. Schoonmaker, 4 Johns. 161 ; Jackson V. Hoyner, 12 
 Johns. 472; Hall v. Patterson, 51 Pa. St. 289; Landers v. Bolton, 26 
 Cal. 406; Harrison v. Oakman, 56 Mich. 390; Farrior V. New England, 
 etc., Co., 88 Ala, 275; O'Neil t?. Webster, 150 Mass. 572, 23 N. E. Rep. 
 235. 
 
 87 Eyster V. Hathaway, 50 111. 522 ; Williams V. Baker, 71 Pa. St. 
 482; Graham V. Anderson, 42 111. 514; Bissett V. Bissett, 1 Har. & 
 McH. 211; Razor v. Dowan (Ky.), 3 S. W. Rep. 914. 
 
 ss Bissett V. Bissett, 1 Har. & McH. 211; McNeely V. Rucker, 6 
 Blackf. 391; Hester v. Glasgow, 79 Pa. St. 79, 21 Am. Rep. 461; 
 Singer Mfg. Co. v. Rook, 84 Pa. St. 442, 24 Am. Rep. 204. And this is 
 true, also, in respect to the certificate of acknowledgment by a married 
 woman. White V. Graves, 107 Mass. 325, 9 Am. Rep. 38; Kerr v. Rus- 
 sell, 69 111. 666, 18 Am. Rep. 634; Singer Mfg. Co. v. Rook, 84 Pa. St. 
 442, 24 Am. Rep. 204; Johnstone t?. Wallace, 53 Miss. 331, 24 Am. Rep. 
 699. And where the certificate in a married woman's deed is defective, 
 it cannot be subsequently amended, unless the defect or mistake relates 
 to an unimportant fact. Angier v. Schieifelin, 72 Pa. St. 106, 13 Am. 
 Rep. 659; Merritt V. Yates, 71 111. 636, 22 Am. Rep. 128. But see, Mas- 
 terson v. Harris (Texas 1904), 83 S. W. Rep. 428; Johnson V. Callaway 
 (Texas 1905), 87 S. W. Rep. 178. 
 
 8 White v. Connelly, 105 N. C. 65 ; Turner v. Connelly, 105 N. C. 72. 
 826
 
 CH. XXIII.] REQUISITES OF A DEED. 576 
 
 called a requisite of the deed, yet if the party is unable to 
 read, and requests the deed to be read to him, a failure to 
 comply with his request, or a false reading or statement of its 
 contents, would vitiate the deed. 90 The same rule applies 
 to those who cannot read the language in which the deed is 
 written. 91 But he must make the request. If he does not, he 
 comes under the general rule that a grantor is presumed to 
 know the contents of the deed, and cannot avoid it on the 
 plea of ignorance of its contents, unless the circumstances of 
 the transaction are sufficient to sustain the charge of fraud, 
 accident or mistake. 92 
 
 576. Delivery and acceptance. After the deed has been 
 signed, sealed and acknowledged, the next requisite is its de- 
 livery by the grantor and its acceptance by the grantee. 
 These acts are as essential to the validity of a deed as sign- 
 ing or sealing. 93 As long as it remains in the possession of 
 
 of Manser's Case, 2 Rep. 3; Henry Pigot's Case, 11 Rep. 27 b; Souver- 
 bye v. Arden, 1 Johns. Ch. 252; Jackson v. Hayner, 12 Johns. 460; 
 Withington V. Warren, 10 Mete. 434; Shofer v. Bonander (Mich.), 45 
 N. W. Rep. 487; Suffern v. Butler, 18 N. J. Eq. (3 Green, C. E.) 220; 
 Thoroughgood's Case, 2 Co. 9, a. b. ; Hallenbeck v. DeWitt, 2 Johns. 404. 
 See Withington v. Warren, 10 Met. 434; Rex v. Longnor, 1 Nev. & M. 
 576; Rossetter v. Simmons, 6 Serg. & R. 452; Lyons v. Van Riper, 26 
 N. J. Eq. (11 C. E. Green) 337; Morrison v. Morrison, 26 Gratt. 190. 
 
 i School Committee of Prov., etc., v. Kesler, 67 N. C. 443; Jackson f. 
 Cory, 12 Johns. 427. 
 
 92 Hartshorn v. Day, 19 How. 223 ; Truman v. Lore, 14 Ohio St. 155 ; 
 School Committee of Prov., etc., v. Kesler, 67 N. C. 443 ; Jackson v. 
 Cory, 12 Johns. 427; Rogers V. Place, 29 Ind. 577; Russell v. Branham, 
 8 Blackf. 277. See, Stevens V. Ozburn (Tenn. 1901), 1 Tenn. Ch. App. 
 213; Cor. Mem. Ch. Lat. Day Saints v. Watson (Utah 1902), 69 Pac. 
 Rep. 531. " It is not necessary that a person about to execute a deed 
 should have the ability to understand the legal effect of the words em- 
 ployed, if the effect of the instrument as a conveyance of property is 
 understood." Moorhead v. Scovel (Pa. 1904), 60 Atl. Rep. 13. 
 
 9sGoddard's Case, 2 Rep. 4b ; Younge v. Gilbeau, 3 Wall. 641; 
 Church v. Gilman, 15 Wend. 656; Fisher . Hall, 41 N. Y. 421; Johnson 
 v. Farley, 45 N. H. 510; Overman v. Kerr, 17 Iowa 486; Fisher v. 
 Beckwith, 30 Wis. 55, 11 Am. Rep. 546; 1 Dev. 222, n. 1. 
 
 827
 
 576 REQUISITES OF A DEED. 
 
 the grantor, and even where the deed has been stolen, and 
 the property passes into the hands of an innocent purchaser, 
 or where the deed falls into the possession of the grantee in 
 any other way than by the consent of the grantor and with 
 the intention to pass the. title, the title is still in the grantor, 
 and no one can acquire title from the grantee. 94 But if it is 
 once delivered, no subsequent act of the grantor can impair 
 the validity of the conveyance. The title is in the grantee, 
 and it cannot be recovered from him except in one of the 
 legal and formal ways recognized by the law for acquiring 
 property. 95 And though the delivery was made by the 
 grantor through the fraudulent misrepresentations of the 
 grantee, or through some mistake of fact or law, if the de- 
 livery was an intentional act, it passes the title, and can only 
 be divested by an equitable proceeding. If the property is 
 in the meantime conveyed to an innocent purchaser, he ac- 
 quires an indefeasible title. 98 The title also passes, notwith- 
 
 * Thoroughgood's Case, 9 Rep. 136 ; Chamberlain v. Staunton, 1 
 Leon. 140; Mills v. Gore, 20 Pick. 28; Black v. Lamb, 12 N. J. Eq. 108; 
 Fisher v. Beckwith, 30 Wis. 55, 11 Am. Rep. 546; Dwinell v. Bliss, 58 
 Vt. 353; Mitchell v. Shortt, 113 111. 251; Miller v. Murfield (Iowa), 44 
 N. W. Rep. 540; McElroy v. Hiner (111.), 24 N. E. Rep. 435; Martling 
 v. Martling (N. J.), 20 Atl. Rep. 41; Cline V. Jones, 111 111. 563; 
 Anderson V. Anderson (Ind.), 24 N. E. Rep. 1036; Stevens v. Stevens, 
 150 Mass. 557, 23 N. E. Rep. 357; 4 Kent. Com. 459; 5 Greenl. Cruise, 
 Tit. Deed 45, 46, 3 Am. Dec. 415; 1 Story's Eq. Juris., Sees. 75, 76; 
 Hoag v. Owen, 60 Barb. 34; Fisher v. Hall, 41 N. Y. 416; Crosby v. 
 Hillyer, 24 Wend. 280; Fonda v. Sage, 48 N. Y. 173; Gilbert v. 
 North American Fire Ins. Co., 23 Wend. 43, 35 Am. Dec. 543; Sut- 
 ton v. Gibson (Ky. 1904), 84 S. W. Rep. 335; Houston L. & T. 
 Co. v. Hubbard (Tex. 1904), 85 S. W. Rep. 474; Gardiner v. Gardi- 
 ner (Mich. 19^, 95 N. W. Rep. 973; Parken v. Safford (Fla. 1904), 
 37 So. Rep. 567; Joslin V. Goddard (Mass. 1905), 72 N. E. Rep. 
 948; Peters f. Bernheimer (Mo. 1904), 83 S. W. Rep. 747; Powers V. 
 Rude (Okla. 1904), 79 Pac. Rep. 89. 
 
 s Shelton's Case, Cro. Eliz. 7; Souverbye v. Arden, 1 Johns. Ch. 255; 
 Connelly v. Doe, 8 Blackf. 320; Hyne v. Osborn, 62 Mich. 235, 28 N. W. 
 Rep. 821; Denver & S. F. R. R. Co. v. School Dist. (Colo.), 23 Pac. 
 Rep. 978. 
 
 Berry v. Anderson, 22 Ind. 41. 
 
 828
 
 CH. XXIII. ]j REQUISITES OF A DEED. 576 
 
 standing both parties believed that the title will not pass by 
 delivery of the deed. 97 To make a good delivery, the deed 
 must be executed completely. 08 A delivery before its com- 
 pletion is of no effect. But, except in the case of a married, 
 woman's deed, a delivery before the acknowledgment of pro- 
 bate will be good, particularly in those States where the ac- 
 knowledgment is not a requisite to the validity of the deed; 
 although it seems that a delivery will not be presumed to have 
 been made before the date of acknowledgment." Usually the 
 deed contains the date of its execution and delivery, and al- 
 though a date is not necessary to the validity of the deed, 1 if 
 it contains a date, the deed will be presumed to have been 
 executed and delivered on that date. 2 But the deed only takes 
 effect from the actual time of delivery, and the actual date 
 of delivery will always control the date mentioned in the 
 deed. 3 It has, however, been held that the delivery will be 
 presumed from the date of acknowledgment. 4 The deed must 
 
 7 Henchliffe v. Hinman, 18 Wis. 138. 
 
 os Burns v. Lynde, 6 Allen 305 ; McKee v. Hicks, 2 Dev. 379. 
 People V. Snyder, 41 N. Y. 402; Blanchard v. Tyler, 12 Mich. 339. 
 See Fischen V. U. T. Co. (Mich. 1904), 101 N. W. Rep. 852. 
 
 1 Goddard's Case, 2 Rep. 4b; Jackson v. Schoonmaker, 2 Johns. 234; 
 Center v. Morrison, 31 Barb. 155; Banning v. Edes, 6 Minn. 402. 
 
 2 Kent, C. J., in Jackson v. Schoonmaker, 2 Johns. 230, 231; Meech 
 V. Fowler, 14 Ark. 29; Lyerly f. Wheeler, 12 Ired. 290, 53 Am. Dec. 
 414; Newlin V. Osborne, 4 Jones (N. c.) 157, 67 Am. Dec. 269; Costigan 
 V. Gould, 5 Denio 290; Ellsworth V. Central R. R. Co., 34 N. J. L. 93; 
 Sweetser v. Lowell, 33 Me. 446; Treadwell v. Reynolds, 47 Cal. 171; 
 Raines v. Walker, 77 Va. 92; Harman V. Oberdorfer, 33 Gratt. 497; 
 Ellsworth v. Central R. R. Co., 34 N. J. L. 93; 3 Washburn on Real 
 Prop. 286 ; Faulkner V. Adams, 126 Ind. 459. " A deed is presumed to 
 have been delivered on the day of its date." McBrayer v. Walker (Ga. 
 1905), 50 S. E. Rep. 95. Delivery is a question of fact. Chastek v. 
 Souba (Minn. 1904), 101 N. W. Rep. 618. 
 
 sXenos V. Wickham, 14 C. B. (N. s.) 469; Mitchell v.Bartlett, 51 N. 
 Y. 453; Smith v. Porter, 10 Gray 67; Lyon v. Mcllvain, 24 Iowa 15; 
 Walker v. Rand, 22 N. E. Rep. 1006 (111.). Mr. Justice Breese in 
 Blake V. Fash, 44 111. 302; Sweetser t^ Lowell, 33 Me. 446. 
 
 * Fontaine V. Boatmen's Savings Institution, 57 Mo. 552, 561; County 
 of Henry v. Bradshaw, 20 Iowa 355; Loomis v. Pingree, 43 Maine 299, 
 
 829
 
 576 REQUISITES OF A DEED. [PART III. 
 
 also be delivered during the life-time of the grantor. A de- 
 livery after his death will have no effect. 5 But there may be 
 an acceptance by the grantee after the grantor's death." Ac- 
 ceptance by the grantee is equally essential with delivery by 
 the grantor. And where no proof of acceptance is offered, 
 and the facts do not justify the legal presumption of accept- 
 ance, no title passes. 7 Until acceptance by the grantee, the 
 title is subject to the claims of creditors who have levied upon 
 the property after a tender of delivery. 8 So, also, if the 
 grantor tenders the deed and the grantee declines to accept, 
 the title remains unaffected in the grantor. 9 But the ac- 
 ceptance may precede the complete execution of the deed. 10 
 If there are several grantees in a deed, the deed may be de- 
 livered to them individually on separate days. But the 
 grantor may by express declaration make the delivery to one 
 
 308. " Where deeds are duly signed, acknowledged, and recorded, it is 
 presumed that they were properly delivered." Webb v. Webb ( Iowa 
 1905), 104 N. W. Rep. 438. 
 
 s Shoenberger v. Zook, 34 Pa. St. 24; Jackson v. Leek, 12 Wend. 107; 
 Jackson . Phipps, 12 Johns. 421; Woodbury v. Fisher, 20 Ind. 388; 
 Weisinger v. Cocke (Miss.), 7 So. Rep. 495; Peters v. Bernheimer 
 (Mo. 1904), 83 S. W. Rep. 747. 
 
 See post, Sec. 578. " A grantor who delivers a deed to a third 
 party, to be delivered to the grantee upon the grantor's death, cannot 
 change his purpose and revoke the conveyance." Tompkins v. Thompson 
 (N. Y. Sup. 1905), 93 N. Y. S. 1070. "The delivery of a deed in 
 escrow, to be delivered to the grantee on the grantor's death, immedi- 
 ately vests the title in the grantee, qualified only by the life estate of 
 the grantor." Wilhoit v. Salmon (Cal. 1905), 80 Pac. Rep. 705. 
 
 T Rogers v. Cary, 47 Mo. 232; Younge v. Guilbeau, 3 Wall. 636; Jack- 
 son v. Phipps, 12 Johns. 421; Wilsey v. Dennis, 44 Barb. 359; Fonda V. 
 Sage, 46 Barb. 123; Hatch V. Bates, 54 Me. 140; Baker v. Haskell, 47 
 N. H. 479; Kingsbury v. Burnside, 58 111. 310. "The acceptance of a 
 conveyance which is for the benefit of the grantees will be presumed." 
 Whitaker V. Whitaker (Mo. 1903), 74 S. W. Rep. 1029. 
 
 s Parmelee v. Simpson, 5 Wall. 86 ; Derry Bank v. Webster, 44 N. H. 
 268 ; Johnson v. Farley, 45 N. H. 509 ; Hibberd v. Smith, 67 Cal. 547. 
 
 Tompkins V. Wheeler, 16 Pet. 119; Derry Bank v. Webster, 44 N. 
 H. 268; Johnson v. Farley, 45 N. H. 509; Xenos v. Wickham, 14 C. B. 
 (N. s.) 474; Welsh v. Sackett, ft Wis. 243. 
 
 loDikeman v. Arnold (Mich.), 44 N. W. Rep. 407. 
 830
 
 CH. XXIII.] REQUISITES OF A DEED. 577 
 
 answer as a delivery to all, and in that case, the acceptance 
 by one is presumed to be a sufficient acceptance for all. 11 
 And where the deed conveys conditional limitations and re- 
 mainders, the delivery to the tenant of the particular estate 
 always constitutes a delivery to the tenants of the future or 
 expectant estate. 12 
 
 577. What constitutes a sufficient delivery. If the deed 
 is found in the possession of the grantee, a delivery and ac- 
 ceptance are presumed. 13 But, like other legal presumptions, 
 it is liable to be rebutted by proof that the possession of it 
 was obtained without the intention of the grantor to make a 
 delivery, or without his consent, and parol evidence is ad- 
 missible to establish this fact. 14 In determining what will 
 constitute a sufficient delivery, it is found that the intention 
 is the controlling element. 15 No particular formality need 
 
 "Hannah v. Swarner, 8 Watts 9; Tewksbury v. O'Connell, 20 Cal. 
 69; Shelden v. Erskine (Mich.), 44 N. W. Rep. 146. 
 
 izphelps v. Phelps, 17 Md. 134; Folk v. Varn, 9 Rich. Eq. 303. 
 " Delivery to the life tenant alone of a deed conveying a life estate, 
 with remainder to otfiers, is sufficient." Chapin V. Nott (111. 1903), 67 
 N. E. Rep. 833, 203 111. 341. 
 
 is Ward v. Lewis, 4 Pick. 518; Ward v. Ross, 1 Stew. (Ala.) 136; 
 Butrick v. Tilton, 141 Mass. 93; Simmons v. Simmons, 78 Ga. 365; 
 Sturtevant v. Sturtevant, 116 111. 340; Brown V. Danforth, 9 N. Y. S. 
 19; Strough V. Wilder, 119 N. Y. 530, 23 N. E. Rep. 1057; Faulkner 
 v. Adams, 126 Ind. 459. " In the absence of testimony that there was 
 no delivery, the law will presume a delivery from possession of the 
 deed by the grantee." Wilbur v. Grover (Mich. 1905), 103 N. W. Rep. 
 583, 12 Detroit Leg. N. 99. " In case of a voluntary settlement, the law 
 presumes much more in favor of the delivery of the deed, whereby the 
 settlement is created, than it does in ordinary cases of deeds of bargain 
 and sale." Baker V. Hall (111. 1905), 73 N. E. Rep. 351, 214 111. 364. 
 
 "Johnson V. Baker 4 B. & Aid. 440; Adams v. Frye, 3 Mete. 109; 
 Ford v. James, 2 Abb. Pr. 162; Black v. Shreve, 13 N. J. 457; Little v. 
 Gibson, 39 N. H. 505; Williams v. Sullivan, 10 Rich. Eq. 217; Morris v. 
 Henderson, 37 Miss. 501; Wolverton v. Collins, 34 Iowa 238; Major v. 
 Todd, 84 Mich. 85. 
 
 is Jordan v. Davis, 108 111. 336 ; Warren v. Swett, 31 N. H. 332 ; Ruck- 
 man V. Ruckman, 32 N. J. Eq. 259; Thompson v. Hammond, 1 Edw. Ch. 
 497; Dukes v. Spangler, 9 Cent. L. J. 398; Burkholder v. Casad, 47 
 
 831
 
 577 REQUISITES OF A DEED. [PART III. 
 
 be observed, and the intention to deliver the deed may be 
 manifested by acts, or by words, or by both. But one or the 
 other must be present to make a good delivery. The grantor 
 may direct the grantee to take the deed lying upon the table, 
 and if the latter does so, the delivery is complete. So also 
 if the deed is thrown down upon the table by the grantor, 
 with the intention that the grantee should take it, although 
 nothing should be said, it will be a good delivery. 10 But the 
 intention may be manifested by still more informal proceed- 
 ings. The deed need not be actually delivered if the grantor 
 intends the execution to have the effect of a delivery, and the 
 parties act upon the presumption. 17 Thus leaving the deed 
 to be recorded, if done with the knowledge of the grantee, and 
 more particularly when this is done with the evident or ex- 
 pressed intention that the title shall pass to the grantee, will 
 ordinarily be held a good delivery. 18 But the intention that 
 
 Ind. 418; Hastings V. Vaughn, 5 Cal. 315. And see Harris V. Harris, 
 59 Cal. 620. 
 
 is Souverby v. Arden, 1 Johns. Ch. 253; Scrugham V. Wood, 15 Wend. 
 545 ; Pennsylvania Co. v. Dovey, 67 Pa. St. 260 ; Ray v. Hallenbeck, 42 
 Fed. Rep. 381; Hubbard V. Cox, 76 Texas 239, 13 S. W T . Rep. 170; 
 Beiser v. Beiser, 8 N. Y. S. 55; Messelback v. Norman, 46 Hun 414; 
 Walker V. Walker, 42 111. 311; Cannon v. Cannon, 26 N. J. Eq. (11 
 Green, C. E.) 316; Whittaker v. Miller, 83 111. 381; Wood on Convey- 
 ancing, 193; 3 Washburn on Real Prop. 286; O'Neal v. Brown, 67 Ga. 
 707; Snow v. Orleans, 126 Mass. 453; Jones V. Loveless, 99 Ind. 327; 
 Davis v. Cross, 14 La. (Tenn.) 637, 52 Am. Rep. 177; Brown v. Brown, 
 66 Me. 316, 320; Turner v. Whidden, 22 Me. 121; Shep. Touch. 57, 58; 
 Chess V. Chess, 21 Am. Dec. 350; Hughes V. Easten, 4 Marsh. J. J. 572, 
 20 Am. Dec. 230; Warren V. Sweet, 31 N. H. (11 Frost.) 332; Eastman, 
 J. (p. 340). "To constitute delivery of a deed, it is not imperatively 
 necessary that there be an actual manual delivery of the instrument." 
 Chastek t?. Souba (Minn. 1904), 101 N. W. Rep. 618. 
 
 "Walker V. Walker, 42 111. 311; Rogers v. Carey, 47 Mo. 235. 
 
 isparmelee v. Simpson, 5 Wall. 86; Elmore V. Marks, 39 Vt. 538; 
 Pennsylvania Co. v. Dovey, 64 Pa. St. 260; Jackson V. Phipps, 12 Johns. 
 418; Stillwell V. Hubbard, 20 Wend. 44; Mills V. Gore, 20 Pick. 28; 
 Hawks v. Pike, 105 Mass. 560; Hatch v. Bates, 54 Me. 139; Cusack v. 
 Tweedy, 56 Hun 617; Greene V. Conant (Mass.), 24 N. E. Rep. 44: 
 Geissmann v. Wolf, 46 Hun 289; Gifford v. Corrigan, 117 N. Y. 257, 22 
 832
 
 CH. XXIII.] REQUISITES OF A DEED. 577 
 
 the registration is to operate as a delivery must be established, 
 if it is disputed or thrown into doubt. 19 The execution of a 
 deed before witnesses will be a fact from which delivery may 
 be presumed. 20 On the other hand, if after execution the 
 deed is retained by the grantor for any purpose which pre- 
 vyents the transaction from being complete, as where it is held 
 as security for the purchase-money, there will be no pre- 
 sumption of delivery. 21 In order that any acts may consti- 
 tute a sufficient delivery, except in the case of an escrow, the 
 grantor must part with all control of the deed. If he retains 
 the control in any manner, as where he makes the delivery 
 conditionally, the delivery will not be sufficient. 22 Where the 
 grantor is a corporation, nothing more is usually required to 
 make a good delivery than that the deed should be executed 
 and the common seal of the corporation affixed to the deed. 
 
 N. E. Rep. 756; Colee v. Colee, 122 Ind. 109, 23 N. E. Rep. 687; Ross 
 v. Campbell, 73 Ga. 309; Tobin v. Bass, 85 Mo. 654, 55 Am. Rep. 392; 
 Vaughn v. Godman, 109 Ind. 499; Messelback V. Norman, 46 Hun 414; 
 Collins V. Collins, 45 N. J. Eq. 813, 18 Atl. Rep. 860; Diefendorf v. 
 Diefendorf, 8 N. Y. S. 617; Reid v. Abernethy, 77 Iowa 438; Huse V." 
 Den, 85 Cal. 390. " The acknowledgment and recording of a deed af- 
 fords a presumption of a legal delivery by the grantor." Dayton r. 
 Stewart (Md. 1904), 59 Atl. Rep. 281. "The recording of a deed by 
 the grantor is not necessarily a delivery, but a circumstance which may 
 be looked to on that question." Johnson v. Johnson (Tex. Civ. App. 
 1905), 85 S. W. Rep. 1023. 
 
 i Maynard v. Maynard, 10 Mass. 456; Jackson V. Phipps, 12 Johns. 
 418; Elsey v. Metcalf, 1 Denio 326; Fennel V. Weyant, 2 Harr. 501; 
 Jones v. Bush, 4 Harr. 1; Stevens v. Castell, 63 Mich. Ill, 29 N. W. 
 Rep. 828. 
 
 20 Moore v. Hasleton, 9 Allen 106; Howe v. Howe, 99 Mass. 98; Loud 
 v. Brigham (Mass.), 28 N. E. Rep. 7. 
 
 21 Jackson v. Dunlap, 1 Johns. Cas. 114; Turner 0. Carpenter, 63 Mo, 
 333; Wainwright V. Low, 57 Hun 386. 
 
 22 Cook v. Brown, 34 N. H. 476 ; Phillips v. Houston, 5 Jones L. 302 ; 
 Somers r. Pumphrey, 24 Ind. 240; Rivard v. Walker, 39 111. 413. "A 
 valid delivery of a deed conveying land is not shown, when it appears 
 that it was the intent of the grantor that the delivery should relate 
 to the date of hia death." Schlicher v. Keleer (N. J. 1905), 61 Atl. 
 Rep. 434. 
 
 53 833
 
 578 REQUISITES OF A DEED. [PART III. 
 
 But if the corporation, in executing the deed, appoint an 
 agent to make a delivery, the formal delivery will be re- 
 quired.- 3 Where the grantee is a corporation, a delivery to 
 an authorized agent and acceptance by him are considered the 
 acts of the corporation, and, therefore, constitute a sufficient 
 delivery and acceptance. 2 * 
 
 578. Delivery to stranger, when assent of grantee pre- 
 sumed. Although some doubt was entertained at an early 
 day as to its validity, it seems now to be well settled that if 
 a deed is delivered to a stranger for the grantee, even though 
 the grantee has not authorized the third person to receive it, 
 if it is subsequently assented to by the grantee, it will con- 
 stitute a good delivery. 25 But the grantor must part with his 
 entire control over the deed. If the deed is handed to a 
 stranger to be delivered to the grantee when the grantor 
 should so direct, or the direction is to deliver it at a specified 
 time, unless the order is countermanded, if the circumstances 
 do not make the deed an escrow, the delivery to the stranger 
 will not be sufficient to pass the title. 26 And although the law 
 
 23 3 Washburn on Real Prop. 287, 288 ; Co. Lit. 22 n, 36 n. 
 
 24 Western R. R. v. Babcock, 6 Mete. 356. 
 
 25 Doe v. Knight, 5 B. & C. 671; Hatch v. Bates, 54 Me. 139; Rug- 
 gles v. Lawson, 13 Johns. 285; Church v. Oilman, 15 Wend. 656; 
 Stephens v. Rinehart, 72 Pa. St. 440; Kingsbury v. Burnside, 58 111. 
 310; Ray v. Hallenbeck, 42 Fed. Rep. 381; Brown V. Danforth, 9 N. Y. 
 S. 19; Ward V. Small's Admr. (Ky.), 13 S. W. Rep. 1070; Orr V. Clark 
 (Vt.), 19 Atl. Rep. 929; Diefendorf v. Diefendorf, 8 N. Y. S. 617; 
 
 Munoz V. Wilson, 111 N. Y. 295; Hatch V. Bates, 54 Me. 136; Stephens 
 v. Huss, 54 Pa. St. 20; Turner v. Whidden, 22 Me. 121; Cincinnati R. 
 R. Co. V. Ih'ff, 13 Ohio St. 235; Merrills V. Swift, 18 Conn. 257, 46 Am. 
 Dec. 315; Morrison V. Kelly, 22 111. 610, 74 Am. Dec. 169; Peavey f. 
 Tilton, 18 N. H. 151, 45 Am. Dec. 365; Ells v. Mo. Pac. Ry., 40 Mo. 
 App. 165. 
 
 26prestman v. Baker, 30 Wis. 644; Phila. W. & B. R. R. fl. Howard, 
 13 How. 334; Black v. Shreve, 13 N. J. 459; Cook v. Brown, 34 N. H. 
 476; Phillips v. Houston, 5 Jones L. 302; Millett V. Parker, 2 Mete. 
 (Ky.) 613; Shirley V. Ayres, 14 Ohio 310; Fitch v. Bunch, 30 Cal. 213; 
 Porter v. Woodhouse, 59 Conn. 568; Robertson v. Woodhouse, 76. "The 
 
 834
 
 CH. XXIII.] REQUISITES OF A DEED. 578 
 
 presumes that a delivery of a deed to the grantee personally 
 is done with the intention of passing the title, there is no 
 such presumption indulged in when the deed is handed to a 
 stranger. To make the delivery to a stranger effectual, the 
 intention with which the delivery was made must be expressed 
 at the time. There are, however, no formal words or dec- 
 larations required. 27 But where the deed was mailed at the 
 request of the grantee, the deposit in the post-office was held 
 to be a good delivery. 28 The knowledge and assent of the 
 grantee are just as necessary in this mode of delivery as in 
 the delivery or tender of the deed to the grantee himself, and 
 until acceptance, expressed or presumed, the delivery is in- 
 operative to pass the title. 29 It has been held that a deed is 
 revocable by the grantor after delivery until it is accepted 
 by the grantee. 30 Delivery and acceptance are " mutual and 
 concurrent acts," and unless the delivery is an open and con- 
 tinuing one an acceptance at a subsequent period will not give 
 validity to the deed. 31 But the subsequent assent will be 
 good, although the grantor may have died in the meantime. 33 
 
 delivery of a deed by the grantor to a third person, which was not 
 made with intention to part with the right to recall the deed, was in- 
 sufficient to pass title." Spacy v. Ritter (111. 1905), 73 N. E. Rep. 
 447, 214 111. 266. 
 
 27 Church r. Oilman, 15 Wend. 656; Tibbals v. Jacobs, 31 Conn. 428; 
 Folk v. Varn, 9 Rich. Eq. 303; Cecil V. Beaver, 28 Iowa 240. See Lutes 
 v. Reed, 138 Pa. St. 191. 
 
 28 McKinney V. Rhoades, 5 Watts 343. 
 
 2 Young v. Guilbeau, 3 Wall. 636; Jackson r. Bodle, 20 Johns. 184; 
 Wilsey V. Dennis, 44 Barb. 359; Bullitt V. Taylor, 34 Miss. 741; Derry 
 Bank v. Webster, 44 N. H. 268 ; Jackson V. Phipps, 12 Johns. 422 ; Dike 
 v. Miller, 24 Texas 417; Mitchell v. Ryan, 3 Ohio St. 386; Mills f. Gore, 
 20 Pick. 28; Stillwell v. Hubbard, 20 Wend. 44. 
 
 so Derry Bank v. Webster, 44 N. H. 268 ; Johnson V. Farley, 45 N. H. 
 509; Owings v. Tucker (Ky.), 13 S. W. Rep. 1078. But see, where deed 
 is for the grantee's benefit, as to presumption of his acceptance. Whit- 
 taker v. Whittaker (Mo. 1903), 74 S. W. Rep. 1029. 
 
 si Jackson v. Dunlap, 1 Johns. Cas. 114; Jackson v. Bodle, 20 Johns. 
 187; Church v. Oilman, 15 Wend. 656; Canning v. Pinkham, 1 N. H. 
 353; Buffum v. Green, 5 N. T. 71; Hulick v. Scovil, 9 111. 177. 
 
 32 Hatch v. Hatch, 5 N. H. 307; O'Kelly v. O*Kelly, 8 Mete. 439; 
 
 835
 
 578 REQUISITES OF A DEED. [PART III. 
 
 The assent of the grantee need not always be proved affirm- 
 atively and expressly. It may in certain cases be presumed 
 from the delivery. If the grantee was aware of the delivery 
 for his use, and the conveyance was beneficial to him, his as- 
 sent may be presumed from the time of delivery. 33 And if it 
 is questioned, it will be necessary to show affirmatively that 
 the grantee was in esse, in order to support the presumption 
 of acceptance. 34 But this presumption in reference to the 
 assent of the grantee is only prima facie. If the grantee ac- 
 tually dissents or refuses to receive the deed, of course no title 
 passes. 35 But where the grantee is under disabilities, as in 
 the case of infant grantees, and perhaps married women, the 
 presumption of assent to a beneficial conveyance becomes a 
 rule of law, and knowledge of the conveyance and delivery is 
 not essential. 36 The relation existing between the person re- 
 ceiving the deed and the grantee may often make the assent 
 and acceptance of the deed by the former sufficient to give 
 the title to the grantee. For example, an acceptance by the 
 father or mother of a deed to an infant child is a good ac- 
 
 Stephens V. Huss, 54 Pa. St. 26; Mather V. Corless, 103 Mass. 568; 
 McCalla V. Bayne, 45 Fed. Rep. 828. But see State Bank v. Evans, 3 
 Green 155; Diefendorf v. Diefendorf, 8 N. Y. S. 617. 
 
 33 Robinson V. Gould, 26 Iowa 93; Cecil V. Beaver, 28 Iowa 241; Gif- 
 ford v. Corrigan, 117 N. Y. 257, 22 N. E. Rep. 756; Munoz v. Wilson, 
 111 N. Y. 295. But an acceptance will not be presumed, as long as 
 the grantee is ignorant of the conveyance. Maynard v. Maynard, 10 
 Mass. 456; Prestman v. Baker, 30 Wis. 644; Baker v. Haskell, 47 N. 
 H. 479; Thompson v. Lloyd, 49 Pa. St. 128; Miller v. Murfield (Iowa), 
 44 N. W. Rep. 540; McElroy v. Hiner (111.), 24 N. E. Rep. 435. See 
 Whittaker v. Whittaker (Mo. 1903), 74 S. W. Rep. 1029. 
 
 3*Hulick v. Scovil, 9 111. 177; Walker v. Walker, 42 111. 311; Bensley 
 v. Atwill, 12 Cal. 231. 
 
 sspeavey v. Tilton, 18 N. H. 152; Townson v. Tickell, 3 B. & Aid. 
 
 36; Younge v. Guilbeau, 3 Wall. 641; Tompkins v. Wheeler, 16 Pet. 
 
 119; Read V. Robinson, 6 Watts & S. 329; Fonda v. Sage, 46 Barb. 109; 
 
 St. Louis I. M. & S. R. R. Co. v. Ruddell (Ark.), 13 S. W. Rep. 418; 
 
 Dikeman V. Arnold (Mich.), 44 N. W. Rep. 407. 
 
 se Baker v. Haskell, 47 N. H. 479; Spencer V. Carr, 45 N. Y. 410; 
 Gregory v. Walker, 38 Ala. 26; Rivard V. Walker, 39 111. 413; Cecil V. 
 Beaver, 28 Iowa 241; Diefendorf v, Diefendorf, 8 N. Y. S. 617. 
 836
 
 CH. XXIII.] REQUISITES OF A DEED/ 579 
 
 ceptance. 37 And on the same ground at common law, a con- 
 veyance to a married woman was void, if her husband dis- 
 sented. But his assent is binding upon her even after his 
 death. 38 
 
 579. Escrows. Although the delivery of the deed will 
 pass the title, if such is the intention of the grantor, and 
 such intention will be presumed in the absence of anything 
 to the contrary, yet there may be a conditional delivery, 
 conditioned that the deed shall only take effect upon the 
 happening of an event specified at the time of delivery. 
 Such a deed is called an escrow. In order that a deed may 
 be an escrow, it must be delivered to a stranger to hold until 
 the condition is performed, and then to be delivered to the 
 grantee. If the delivery is made to the grantee, it will be an 
 absolute delivery, whatever conditions may be annexed there- 
 to, and the title will immediately pass to the grantee. 30 But 
 if the delivery to the grantee is merely for the purpose of 
 having it delivered immediately to a third person to hold as 
 an escrow, the delivery to the grantee will not vest a title in 
 him, the intent, with which it was done, controlling its effect. 40 
 
 37 Baker V. Haskell, 47 N. H. 479 ; Souverbye V. Arden, 1 Johns. Clu 
 456; Jaqucs r. Methodist Church, 17 Johns. 577; Gregory v. Walker, 
 38 Ala. 27 ; Rogers V. Carey, 47 Mo. 236 ; Cloud v. Calhoun, 10 Rich. Eq. 
 362. 
 
 38 Butler & Baker's Case, 3 Rep. 26 ; Melvin r. Props., etc., 16 Pick. 
 167; Foley v. Howard, 8 Clarke (Iowa 36; Diefendorf v. Diefendorf, 8- 
 N. Y. S. 617. 
 
 3 Fairbanks v. Metcalf, 8 Mass. 230; Ward v. Lewis, 4 Pick. 520; 
 Gilbert r. N. A. F. Ins. Co., 23 Wend. 43 ; Black v. Shreve, 13 N. J. 458 ; 
 Foley v. Cowgill, 5 Blackf. 18; Jane V. Gregory, 42 111. 416; Herdman v.. 
 Bratten, 2 Harr. 396; Fireman's Ins. Co. v. McMillan, 29 Ala. 160. But 
 see Bibb r. Reid. 3 Ala. 88; Stevenson V. Crapnell, 114 111. 19. "A 
 delivery of a deed to one of several grantees, to hold the same for her- 
 self and the others, with the knowledge and consent of the latter, is a 
 delivery to all." Webb v. Webb (Iowa 1905), 104 N. W. Rep. 438. 
 See also, Kirkwood v. Smith, 212 111. 395, 72 N. E. Rep. 427. 
 
 <o Murray r. Stair, 2 B. & C. 82; Jackson v. Sheldon, 22 Me. 569; 
 Gilbert c. N. A. Fire Ins. Co., 23 Wend. 43 ; Simonton's Estate, 4 Watts 
 
 837
 
 579 ' REQUISITES OF A DEED. [PART III. 
 
 "Where the deed is delivered to a stranger for the grantee, 
 whether it shall operate as a present deed, or as an escrow, 
 depends upon the intention of the parties, as expressed at 
 the time of the delivery. If the deed is handed to the 
 stranger with the instruction that the delivery to the grantee 
 shall depend upon the happening of a condition, it is an 
 escrow; but if the delivery is made to the stranger, although 
 accompanied by instructions that it shall not be delivered 
 until the death of the grantor, it is a grant in prcesenti.* 1 - 
 The importance of distinguishing escrows from other deeds 
 like those above described lies in this fact : escrows can operate 
 only from the time that the condition is performed. A de- 
 livery before the performance of the condition will not have 
 the effect of passing the title to the grantee, not even against 
 innocent purchasers for value of the grantee. 42 But if the 
 deed is one operating immediately, even though the bailee of 
 the deed is instructed not to deliver it before the grantor's 
 death, it passes the title immediately, and a delivery before 
 the grantor's death will be good. Indeed, it does not seem 
 that any formal delivery to the grantee is required. 43 For 
 
 180; Den V. Partee, 2 Dev. & B. 530. But see Fairbanks v. Metcalf, 8 
 Mass. 239 ; Braman v. Bingham, 26 N. Y. 483. 
 
 41 Foster v. Mansfield, 3 Mete. 414; Cook v. Brown, 34 N. H. 465; 
 Tooley v. Dibble, 2 Hill 641; Braman v. Bingham, 26 N. Y. 483; 
 Hathaway v. Payne, 34 N. Y. 106; Price v. P., Ft. W. & C. R. R., 34 
 111. 13. 
 
 42 Fairbanks v. Metcalf, 8 Mass. 230; Hinman V. Booth, 21 Wend. 
 267; Black v. Shreve, 13 N. J. 458; Jackson v. Sheldon, 22 Me. 569; 
 Illinois Cent. R. R. V. McCullaugh, 59 111. 170; Chipman v. Tucker, 38 
 Wis. 43, 20 Am. Rep. 1; Chicago, etc., R. R. Land Co., v. Peck, 112 111. 
 400. In Rhodes V. Gardiner, 30 Me. 110, it was held that sufficient title 
 passed by such an authorized delivery to give a good title to an inno- 
 cent purchaser from the grantee. But see Houston L. & T. Co. v. Hub- 
 bard (Texas 1905), 85 S. W. Rep. 474; Sutton r. Gibson (Ky.), 84 
 S. W. Rep. 335; Wisconsin Ry. Co. v. McKenna (Mich. 1905), 102 N. 
 W. Rep. 281. 
 
 Murray v. Stair, 2 B. & C. 82; Shaw V. Hayward, 7 Gush. 175; 
 Mather f. Corless, 103 Mass. 568; Braman V. Bingham, 26 N. Y. 483; 
 Hathaway v. Payne, 34 N. Y. 106; Price v. P., Ft. W. & C. R. R., 34 
 838
 
 CH. XXIII.] REQUISITES OF A DEED. 579 
 
 this reason it is always necessary in delivering a deed as an 
 escrow to be explicit as to the intent with which the delivery 
 was made, and it would be much more prudent if the delivery 
 is accompanied by a memorandum in writing, explaining the 
 character of the delivery to the bailee, and the terms of the 
 condition upon which the delivery to the grantee depends. 
 No technical or formal language is required, provided the in- 
 tention is made clear by the use of any other language. 44 In 
 an escrow no title vests in the grantee until the second deliv- 
 ery. 45 But though the deed after the first delivery can only 
 be revoked by the grantor, for default in the performance of 
 the condition, 46 the premises so far continue to be the property 
 of the grantor that they can be levied upon by the grantor's 
 creditors, and their attachments will take precedence to the 
 title acquired by the grantee. 41 But notwithstanding the deed 
 does not take effect until the second delivery, yet for many 
 purposes, after the second delivery, the deed relates back to 
 the first delivery, and takes effect mine pro tune. This is the 
 case when the doctrine of relation is necessary on account of 
 some intervening obstacle which would otherwise invalidate 
 the deed, as where the grantor dies before the second de- 
 livery. 48 
 
 111. 13; Goodpaster v. Leathers (Ind.), 23 N. E. Rep. 1090. See Kirk- 
 wood v. Smith, 212 111. 395, 72 N. E. Rep. 427. 
 
 ** Jackson v. Catlin, 2 Johns. 248; Clark v. Gifford, 10 Wend. 310; 
 Gilbert v. N. A. Fire Ins. Co., 23 Wend. 43 ; State v. Peck, 53 Mo. 293 ; 
 White v. Bailey, 14 Conn. 271 ; Shoenberger v. Hackman, 37 Pa. St. 
 87; Millett v. Parker, 2 Mete. (Ky.) 616. 
 
 Frost V. Beekman, 1 Johns. Ch. 297 ; James V. Vanderheyden, 1 
 Paige 385; Everts v. Agnes, 4 Wis. 351. 
 
 46Worrall v. Munn, 6 N. Y. 229; Millet v. Parker, 2 Mete. (Ky.) 
 608; Wright v. Shelby R. R., 16 B. Mon. 4. 
 
 *i Frost V. Beekman, 1 Johns. Ch. 297; Jackson r. Catlin, 2 Johns. 
 248; Jackson v. Rowland, 6 Wend. 666. See Rutherford v. Carr (Texas 
 1905), 87 S. W. Rep. 815. 
 
 48 Ruggles i?. Lawson, 13 Johns. 285; Jackson f. Rowland. 6 Wend. 
 666; Evans r. Gibbs, 6 Humph. 405; Jackson v. Catlin, 2 Johns. 248; 
 Carr v. Hoxie, 5 Mason 60. 
 
 839
 
 581 REQUISITES OP A DEED. [PART III. 
 
 580. Registration of deeds and other instruments. Ex- 
 cept in respect to the enrollment of deeds of bargain and 
 sale, deeds were not required by the English law to be regis- 
 tered or recorded. And although a system of registration 
 has been in operation since the reign of Queen Anne in some 
 of the counties of England, no general registration law has 
 ever been in force there. 40 But in the United States, from 
 an early period, every State in the Union has had a general 
 registration law and officers appointed whose duty it was to 
 record all deeds of conveyance, and other written instruments 
 mentioned in the statute. The object of recording a deed is 
 to furnish a subsequent purchaser with reliable means of in- 
 vestigating titles. And hence it must be recorded in the 
 county in which the land lies. 50 The record simply furnishes 
 evidence of the conveyance, and the law provides that if a 
 deed is recorded, the record is constructive notice of the con- 
 veyance, and that an unrecorded deed shall not prevail against 
 subsequent purchasers without notice. 61 
 
 581. Requisites of a proper record. But in order that 
 the record may be constructive notice of the deed and its con- 
 tents, the deed must be a valid one, and possess all the requi- 
 sites of a valid deed. The record of a defective deed fur- 
 nishes no notice, except to one who has seen it. And the deed 
 or other instrument must further be one required or permitted 
 
 493 Washburn on Real Prop. 313; Williams on Real Prop. 466, 467. 
 
 BO Oberholtzer's Appeal, 124 Pa. St. 583. 
 
 "Earle v. Fiske, 103 Mass. 492; Trull v. Bigelow, 16 Mass. 406; 
 Stephens v. Morse, 47 N. H. 433; Murphy v. Nathans, 46 Pa. St. 512; 
 Van Rensselaer V. Clark, 17 Wend. 25; Jackson v. Leek, 19 Wend. 339; 
 Wells v. Morrow, 38 Ala. 125; Martin v. Quattlebaum, 3 McCord 205; 
 Burkhalter v. Ector, 25 Ga. 55; Lillard V. Rucker, 9 Yerg 64; Dixon v. 
 Doe, 1 Smed. & M. 70; Givan v. Doe, 7 Blackf. 210; Applegate v. Gracy, 
 9 Dana 224; Hopping v. Burnham, 2 Greene (Iowa) 39; Fitzhugh V. 
 Barnard, 12 Mich. 110. Registration laws are not intended to protect 
 c-reditors, but to give notice of conveyances of real estate to them, as 
 veil as subsequent grantees. Ilfeld v. DeBoca, 79 Pac. Rep. 723. 
 
 840
 
 CH. XXIII.] REQUISITES OP A DEED. 581 
 
 by law to be recorded. 52 A quit-claim deed is sufficient to 
 give the grantee priority over a prior unrecorded deed. 5a 
 And a subsequent grantee, who takes without notice of the 
 prior unrecorded deed, can claim priority over such prior 
 conveyance, although his own deed may be unrecorded. 54 
 
 If a deed has been properly recorded, in most of the States 
 it may be used in evidence without any other proof of its 
 execution. 55 And in some of them a certified copy of the 
 record is made original evidence in establishing the claim 
 of title from one grantor to another. 56 , But in other of the 
 
 52 De Witt v. Moulton, 17 Me. 418; Shaw v. Poor, 6 Pick. 88; Blood 
 V. Blood, 23 Pick. 80; McKeen v. Mitchell, 35 Pa. St. 269; Harper 
 V. Barsh, 10 Rich. Eq. 149; Harper v. Tapley, 35 Miss. 510; Pringle- 
 V. Dunn, 37 Wis. 449, 19 Am. Rep. 772; Sands V. Beardsley, 32 W- 
 Va. 594; Brown V. Lunt, 37 Me. 423; Stevens V. Morse, 47 N. H. 532; 
 Blood V. Blood, 23 Pick. 80; Hodgson V. Butts, 3 Cranch 140; Shults 
 V. Moore, McLean 521; Harper v. Reno, 1 Freem. Ch. 323; Parkist U- 
 Alexander, 1 Johns. Ch. 394; Green V. Drinker, 7 W. & S. 440; Heist- 
 ner v. Fortner, 2 Binn. 40; Strong v. Smith, 3 McLean 362; Cockey- 
 v. Milne, 16 Md. 200. In Musgrove V. Bouser (5 Oreg. 313, 20 Am. 
 Rep. 737), the Supreme Court of Oregon held that the record of a 
 deed, not properly admitted to record, furnishes constructive notice of 
 the contents of the deed to all who have actually seen the record. See,, 
 also, to same effect, Kerns V. Swope, 2 Watts 75; Hastings v. Cutler,. 
 4 Fost. 481. It is also a general rule that the record must be properly- 
 made, in order to raise constructive notice to subsequent purchasers ^ 
 and it has been held in Wisconsin, though denied in Missouri and 
 Pennsylvania, that a record without an index furnishes no notice. 
 Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772; Bishop v. Schneider,. 
 46 Mo. 472, 2/.m. Rep. 553; Schell v. Stein, 76 Pa. St. 398, 18 Am. 
 Rep. 416. 
 
 53 Cutler v. James, 64 Wis. 173, 54 Am. Rep. 603. 
 5* Edwards V. Thorn, 25 Fla. 222. 
 
 tssYounge V. Guilbeau, 3 Wall. 640; Houghton V. Jones, 1 Wall. 702 ? 
 Carpenter v. Dexter, 8 Wall. 532 ; Samuels v. Borrowscale, 104 Mass. 
 207; Young v. Ringo, 1 B. Mon. 30; Fell v. Young, 63 111. 106;. 
 Hinchliffe V. Hinman, 18 Wis. 135; Toulmin V. Austin, 5 Stew. & P. 
 410. 
 
 58 Scanlan V. Wright, Samuels V. Borrowscale, 104 Mass. 207 ; Farrar 
 v. Fessenden, 39 N. H. 268; Dixon v. Doe, 5 Blackf. 106; Bogan v_ 
 Frisby, 36 Miss. 178; Clague V. Washburn, 42 Minn. 371, 44 N. W. Rep_ 
 130. 
 
 841
 
 582 REQUISITES OP A DEED. [PAUT III. 
 
 States the deed must be proved as at common law, unless it 
 comes under the head of ancient deeds, i. e., deeds thirty 
 years old. 67 
 
 582. To whom is record constructive notice. This record 
 is constructive notice to only subsequent purchasers claiming 
 iinder the grantor, i. e., those who acquire an interest in the 
 property subsequently, and as privy to the grantor, whether 
 as grantee, mortgagee, or attaching creditor. 58 It is not no- 
 tice to those who claim independently of the grantor, 59 as, 
 for example, where a mortgagee assigns the mortgage. The 
 record of the assignment is not constructive notice to the 
 mortgagor or his assignees. 60 So, also, is the mortgagee or 
 his assignee not charged with constructive notice by the record 
 of the mortgagor's assignment. 61 The same rule applies in 
 general to those who acquire their interests from the grantor 
 
 ST See Woolfolk v. Graniteville Mfg. Co., 22 S. C. 332. 
 
 ssTilton l\ Hunter, 24 Me. 35; Shaw V. Poor, 6 Pick. 85; Bates r. 
 Norcross, 14 Pick. 224; Doe v. Beardsley, 2 McLean 412; Losey v. 
 Simpson, 3 Stockt. Ch. 246; Ely v. Wilcox, 20 Wis. 530; Traphagen f. 
 Irwin, 18 Neb. 195. See Ilfeld v. DeBoca, 79 Pac. Rep. 723. 
 
 so Blake v. Graham, 6 Ohio St. 480; Iglehart v. Crane, 42 111. 261; 
 Baker v. Griffin, 50 Miss. 158; Bates v. Norcross, 14 Pick. 224; George 
 V. Wood, 9 Allen 80; Murray v. Ballou, 1 Johns. Ch. 566; Page v. 
 Waring, 76 N. Y. 463; Lightner V. Mooney, 10 Watts 412; Losey v. 
 Simpson v. Stockt. Ch. 246; Farmers' L. & T. Co. v. Maltby, 8 Paige 
 361; Calder v. Chapman, 52 Pa. St. (2 P. F. Sm.) 359; Wood r. 
 Farmere, 7 Watts 282. 
 
 eo Jones V. Gibbons, 9 Ves. 410; Mitchell v. Burnham, 44 Me. 302; 
 James V. Johnson, 6 Johns. Ch. 417; Ely . Schofield, 35 Barb. 330; Bel- 
 den V. Meeker, 47 N. Y. 307; Titus v. Haynes, 9 N. Y. S. 742; Castle 
 P. Castle (Mich.), 44 N. W. Rep. 378. In some of the States, notably 
 California, Indiana, Kansas, Michigan, Minnesota, Nebraska, New 
 York, Oregon, Wisconsin and Maryland, the same rule is established by 
 statute. Jones on Mort., Sec. 473; 2 Washburn on Real Prop. 14S. 
 See Watson r. Dundee Mortgage, etc., Co., 12 Ore. 474. And see Sec. 
 579. 
 
 6i4 Kent's Com. 174; Stuyvesant v. Hall, 2 Barb. Ch. 158; Bell r. 
 Fleming, 12 N. J. Eq. 16; Blair v. Ward, 10 N. J. Eq. 126; Groesbeck 
 v. Mattison, 43 Minn. 547; Clark v. McNeal, 114 N. Y. 287; First Nat. 
 Bank t. Honeyman (Dakota), 42 N. W. Rep. 771. See Sec. 579. 
 842
 
 CH. XXIII.] REQUISITES OF A DEED. 582 
 
 by a prior deed. 62 It has also been held that the doctrine of 
 constructive notice from record of a deed does not apply 
 where A. 's deed to B. is unrecorded and B. then conveys to 
 C., who puts his deed upon record, without notice of the fact 
 that B., the grantor, has derived his title from A. It is held 
 that a subsequent purchaser is not charged with constructive 
 notice of the prior recorded deed from B. to C. 03 But it is 
 a doubtful question whether the registration of the prior deed, 
 before the title has been acquired by the grantor and re- 
 corded, would properly be considered constructive notice of 
 the estoppel, whereby the after-acquired title would inure to 
 the prior grantee even as against a subsequent purchaser 
 without actual notice. It is certainly in violation of the spirit 
 of the registration laws, which only require the investigator 
 to search the records for any incumbrance or conveyance 
 which occurs between the time when the grantor acquired the 
 title, and the time when he offers the title for conveyance. 64 
 
 It has been held by some of the courts that a purchaser 
 from the heir cannot claim precedence for his recorded deed 
 over the unrecorded deed of the ancestor, on the ground that 
 
 82 George V. Wood, 9 Allen 80; Losey v. Simpson, 3 Stockt. Ch. 246; 
 Holley v. Hawley, 39 Vt. 532; Boone v. Clark, 129 111. 466; 2 Pom. 
 Eq. n, 142. See Maul v. Rider, 59 Pa. St. (9 P. F. Sm.) 106, 171; 
 Birnie V. Main, 29 Ark. 591; Ward's Exr. v. Hague, 25 N. J. Eq. (10 
 C. E. Green) 397; Guion v. Knapp, 6 Paige 42; Hill v. McCarter, 27 
 N. J. Eq. 41; Doolittle v. Cook, 75 111. 355; Deuster v. McCamus, 14 
 Wis. 307; Halsteads v. Bk. of Ky., 4 J. J. Marsh. 558. "A vendee's 
 title is not divested by his failure to record his deeds." Gibson v. 
 Brown (111. 1905), 73 N. E. Rep. 578. 
 
 oaVeazie r. Parker, 53 Me. 170; Pierce v. Taylor, 23 Me. 246; Fel- 
 ton V. Pitman, 14 Ga. 530; Roberts V. Bourne, 23 Me. 165; Lightner V. 
 Mooney, 10 Watts 407; Calder v. Chapman, 52 Pa. St. 353; Chicago v. 
 Witt, 75 111. 211. 
 
 * Calder v. Chapman, 2 P. F. Smith 359; McCusker v. McEvey, 10 
 R. I. 606, the dissenting opinion of Judge Potter; Bright v. Bucliman, 
 39 Fed. Rep. 243; Pike v. Calvin, 29 Me. 183; Jarvis v. Aikens, 25 Vt. 
 635; White v. Patten, 24 Pick. 324; Tefft v. Munson, 57 N. Y. 97; 
 Doyle V. Peerless Pet. Co., 44 Barb. 239; Farmers L. & T. Co. 
 v. Maltby, 8 Paige 361. But see Wilson v. Smith, 52 Hun 171. 
 
 843
 
 582 REQUISITES OF A DEED. [PART III. 
 
 since the unrecorded deed was a good conveyance against the 
 heir, nothing descended to the heir which he could convey. 05 
 But the better opinion seems to be that the deed from the heir 
 in such a case would be entitled to priority, and would vest 
 the superior title in the grantee of the heir, for the reason that 
 the registry laws declare a deed void against all subsequent 
 purchasers without notice if it has not been recorded. 69 If 
 one has a recorded deed which has a priority over an ante- 
 cedent unrecorded deed, the holder of the recorded deed ac- 
 quires an absolute paramount title, which he can convey even 
 to those who have notice of the prior unrecorded deed, 67 with 
 the exception of his own grantor, who originally acquired title 
 with notice of the prior unrecorded deed. Such a person can- 
 not improve his title by conveying the land to an innocent 
 purchaser, and repurchasing it, relying upon the superior 
 title of the intermediate grantee. 68 And if the recorded deed 
 is to one who has notice of the prior deed, although in his 
 hands the recorded deed does not have precedence, 69 if he 
 conveys to one having no notice, his grantee acquires a good 
 title. But if the prior deed is recorded before the conveyance 
 by the first grantee who has had notice, the grantee of the 
 second conveyance is bound by the constructive notice. 70 But 
 no one can take advantage of the record for the purpose of 
 
 es Hill v. Meeker, 24 Conn. 211; Hancock v. Beverly, 6 B. Mon. 532; 
 Harlan v. Seaton, 18 B. Mon. 312. 
 
 GO Earle v. Fiske, 103 Mass. 491; Powers v. McFerron, 2 Serg. & R. 
 47; McCullough v. Endaly, 3 Yerg. 346; Youngblood v. Vastine, 46 Mo. 
 239; Kennedy v. Nortrup, 15 111. 148. 
 
 eiLowther v. Carlton, 2 Atk. 133; Trull v. Bigelow, 15 Mass. 406; 
 Bumpus v. Platner, 1 Johns. Ch. 219; Bell v. Twilight, 18 N. H. 159. 
 
 csciai-k v. McNeal, 114 N. Y. 287. 
 
 Cox V. Wayne, 26 W. Va. 807. 
 
 plynt f. Arnold, 2 Mete. 619; Trull v. Bigelow, 16 Mass. 406; 
 Adams V. Cuddy, 13 Pick. 460; Brackett v. Ridlon, 54 Me. 434; Hag- 
 thorpe v. Hook, 1 Gill & J. 270; Baylis v. Young, 51 111. 127. "An 
 unrecorded deed may be good as to the parties thereto and as to those 
 who have notice thereof." Licata v. De Corte (Fla. 1905), 39 So. 
 Rep. 58. 
 
 844
 
 CH. XXIII.] REQUISITES OP A DEED. 583 
 
 giving his deed priority over another unrecorded deed, who 
 has not paid a substantial valuable consideration therefor, 
 and he must show by extraneous evidence that it has been 
 paid. 71 
 
 583. Priority of unrecorded mortgages over judgment 
 creditors. It is also claimed by many of the authorities, that 
 an unrecorded mortgage or conveyance will have priority over 
 the subsequently docketed judgment, although the judgment 
 is obtained and docketed without notice of the prior convey- 
 ance or mortgage, on the ground that the lien of the judgment 
 on the property is acquired by the judgment creditor without 
 any consideration and that the assertion of the prior unre- 
 corded mortgage or conveyance against such subsequently 
 docketed judgment would not give to the judgment creditor 
 any claim of being injured, for he has parted with nothing 
 in securing the judgment lien in reliance upon the apparently 
 valid title of the judgment debtor. The equitable doctrine 
 then is that a judgment lien will cover only the actual interest 
 of the judgment debtor, and attaches to such interest subject 
 to all the prior equitable claims against such interest. 72 This 
 
 "Boone v. Chiles, 10 Pet. 211; Watkins v. Edwards, 23 Texas 447; 
 Parker v. Foy, 43 Miss. 260; Maupin v. Emmons, 47 Mo. 304; Bishop 
 v. Schneider, 46 Mo. 472, 2 Am. Eep. 533; Shotwell v. Harrison, 22 
 Mich. 410; Cox V. Voght, 26 W. Va. 807. 
 
 72Bartley, J., in White v. Denman, 1 Ohio St. 110, 112; Finney v. 
 Earl of Winchelsea, 1 P. Wins. 277; Legard v. Hodges, 1 Ves. 477; 
 Burn . Burn, 3 Ves. 573, 582; Lodge v. Tyseley, 4 Sim. 70; Beavan V. 
 Earl of Oxford, 6 De. M. & G. 507, 517, 518; Newlands v. Paynter, 
 4 My. & Cr. 408; Langton v. Horton, '1 Hare 549; Everett v Stone, 
 3 Story 446, 455 ; In re Howe, 1 Paige 125 ; Buchan v. Sumner, 2 Barb. 
 Ch. 165, 207; Hoagland V. Latourette, 1 Green's Ch. 254; Dunlap V. 
 Burnett, 5 Sm. & Mar. 702; Bank v. Campbell, 2 Rich. Eq. 179; Cover 
 v. Black, 1 Barr. 493; Shryock v. Waggoner, 4 Casey 430; Richeson 
 v. Richeson, 2 Gratt. 497; Bayley v. Greenleaf, 7 Wheat 46, 51; Stevens 
 V. Watson, Abb. App. Dec. 302; Wheeler v. Kirtland, 24 N. J. Eq. 
 (9 C. E. Green) 552; Wilder v. Butter field, 50 How. Pr. 385; Schroeder 
 . Gurney, 73 N. Y. 430; Wilcoxson v. Miller, 49 Cal. 193; First 
 Nat. Bk. v. Hayzlett, 40 Iowa 659; Kelly v. Mills, 41 Miss; 267; 
 
 845
 
 583 REQUISITES OF A DEED. [PART III. 
 
 rule, however, has been repudiated by the courts of many of 
 the States in which it is held, that the judgment creditor is 
 entitled to priority over other earlier equitable interests, on 
 the ground that he does suffer a damage of a legal character 
 in consequence of the recognition of the priority in the earlier 
 equities whenever he goes to the trouble and expense of pro- 
 curing the judgment lien, and is induced by the apparently 
 unincumbered condition of the debtor's title to rely upon such 
 judgment lien. In accordance with this principle it is held 
 in these States, that the judgment lien, docketed subsequently 
 to an unrecorded mortgage, or to the acquisition of some 
 equitable interest or lien, shall have precedence over such 
 prior equity or interest ; 73 but where the judgment lien is 
 given priority over the earlier equity, the claim for priority 
 depends upon the want of notice of the prior equity when the 
 lien was acquired. In other words, if when the judgment lien 
 was acquired and the judgment docketed, the judgment cred- 
 itor knows of the existence of the earlier equitable claim 
 against the property, he cannot claim for his judgment lien 
 any precedence over the prior equity. 74 Where, however, the 
 recording laws declare that a judgment lien shall have prece- 
 dence over the unrecorded mortgage, or a conveyance, the 
 statutory provision must prevail, giving to the judgment lien 
 
 Righter v. Forrester, 1 Bush. (Ky. ) 278; Morton v. Robards, 4 Dana 
 258; Orth v. Jennings, 8 Blackf. 420; Hempton v. Levy, 1 McCord Ch. 
 107, 111; Galway v. Mulchow, 7 Neb. 285; Van Thorniley v. Peters, 26 
 Ohio St. 471. 
 
 "Corpman v. Baccastow, 84 Pa. St. 363; King v. Portis, 77 N. C. 
 25; Vat Thorniley v. Peters, 26 Ohio St. 471; Guiteau v. Wisely, 47 
 III. 433; Barker V. Bell, 37 Ala. 354; Mainwaring v. Templeman, 41 
 Texas 266; Andrews V. Mathews, 59 Ga. 466; Anderson v. Nagle, 12 
 W. Va. 98. See London v. Bymm (N. C. 1904), 48 S. E. Rep. 764; 
 Owens v. Atlanta T. & B. Co. (Ga. 1905), 50 S. E. Rep. 379; Morris 
 Supply Co. v. McColgon (Md. 1905), 60 Atl. Rep. 608. 
 
 74 Priest v. Rice, 1 Pick. 164; Hart V. Farm. & Mech. Bk., 33 Vt. 
 252; O'Rourke v. O'Connor, 39 Cal. 442; Britton's Appeal, 9 Wright 
 172 ; Mellon's Appeal, 8 Casey 121 ; Lawrence v. Stratton, 6 Gush. 163, 
 167; Dixon V. Doe, 1 Sm. & Mar. 70; Ayres V. Duprey, 27 Texas 593; 
 Wyatfw. Stewart, 34 Ala. 716, 721; Garwood v. Garwood, 4 Halst. 193. 
 846
 
 CH. XXIII.] REQUISITES OP A DEED. 583 
 
 priority over the unrecorded mortgage, even though the judg- 
 ment creditor knew when the judgment was docketed that 
 such unrecorded mortgage existed. 75 But whether in any 
 particular State the judgment lien is held to have priority 
 over the prior equity or interest, or not, if the judgment lien 
 should be enforced by execution, and the property sold under 
 such execution to a bona fide purchaser, the legal title in such 
 a purchaser would be taken by him free from the priority of 
 the earlier equity, and such equities could not be enforced 
 against the lien in the hands of such a purchaser. 76 Where, 
 however, the purchaser under the execution of the judgment 
 takes the land with notice of the prior equity, and the judg- 
 ment creditor also loses his precedence, because of his knowl- 
 edge of the existence of the prior equity, or the question 
 arises in a State in which the judgment creditor is denied all 
 claim of priority over the' earlier equity, such a purchaser 
 cannot claim to take the legal title from the earlier equita- 
 ble claim. 77 But if the question arose in a State in which the 
 
 75 Guerrant v. Anderson, 4 Rand. 208 ; Davidson v. Cowan, 1 Dev. 
 Eq. 474; Davey v. Littlejohn, 2 Ired. Eq. 495; Mayham V. Coombs, 14 
 Ohio 428; Butler tJ. Maury, 10 Humph. 420; Lillard V. Ruckers, 9 
 Yerg. 64. See Koston t?. Storey (80 Pac. Rep. 217, Or. 1905) for pri- 
 ority of judgment over grantee's title from a mortgagor, after redemp- 
 tion from a prior mortgage. 
 
 0rth v. Jennings, 8 Blackf. 420; Rodgers v. Gibson, 4 Yeates 111; 
 Heister V. Fortner, 2 Binney 40; Jackson V. Town, 4 Cow. 599; Gov- 
 erneur v. Titus, 6 Paige 347; Den v. Richman, 1 Green 43; Mann's 
 Appeal, 1 Barr. 24; Wilson v. Shoneberger, 10 Casey 121; Ehle v. 
 Brown, 31 Wise 405, 414; Rogers V. Hussey, 36 Iowa 664; Ayres v. 
 Dubrey, 27 Texas 593, 605 ; Gower v. Doheney, 33 Iowa 36, 39 ; Wright 
 v. Douglass, 10 Barb. 97; Sargent v. Sturm, 23 Cal. 359; Orme v, Rob- 
 erts, 32 Texas 768. 
 
 ^T Ells v. Tousley, 1 Paige 280; Parks v. Jackson, 11 Wend. 442; 
 Siemon V. Schurck, 29 N. Y. 598; Bank v. Campbell, 2 Rich. Eq. 179; 
 Churchill v. Morse, 23 Iowa 229; O'Rourke V. O'Connor, 39 Cal. 442; 
 Byers v. Engles, 16 Ark. 543; Ogden v. Haven, 24 111. 57; Ayres v. Du- 
 prey, 27 Texas 593. " Where a mortgage is older than a judgment, a 
 sale under the power contained therein conveys to the purchaser a title 
 good against the judgment lien." Williams v. J. P. Williams Co. (Ga. 
 1905), 50 S. E. Rep. 52. 
 
 847
 
 584 REQUISITES OP A DEED. [PART III. 
 
 judgment creditor can claim for his lien, priority over the 
 equitable interest of the earlier date, because he does not 
 know of its existence when the judgment lien was secured, 
 then this priority recognized by the law in the judgment 
 creditor in favor of his lien passes to the purchaser, so that 
 the purchaser under the execution on the judgment can claim 
 priority in his character as assignee of the judgment cred- 
 itor, although when he takes the deed to the property he 
 knows of the existence of the prior equitable interest or 
 laim. 78 
 
 584. Of what is record constructive notice. Not only is 
 the record constructive notice of the recorded deed and its 
 contents, but it will also be notice of all other deeds and their 
 contents, to which reference is made in the recorded deed. 79 
 But it has been held that the record of a deed which describes 
 the subject of the grant in very general terms, as, for exam- 
 ple, "all the lands the grantor owns in Louisiana," does not 
 furnish constructive notice of any particular tract. 80 The 
 record is constructive notice of the contents of deeds only as 
 they appear upon the record. A mistake of the register in 
 the description of the property, or the amount of the mort- 
 gage, will fall upon the holder of the deed. 81 Such would also 
 
 78Jaques v. Weeks, 7 Watts 261, 270; Uhler V. Hutchinson, 23 Pa. 
 St. (11 Harris), 110; Calder v. Chapman, 52 Pa. St. (2 P. F. Sm.) 
 359, 362; Massey v. Westcott, 40 111. 160; Henderson V. Downing, 23 
 Miss. 105; Fash v. Ravesies, 32 Ala. 451; De Venbell V. Hamilton, 27 
 Id. 156; Pollard v. Cocke, 19 Id. 188; Smith v. Jordan, 25 Ga. 687. 
 
 "White V. Foster, 102 Mass. 375; Acer V. Westcott, 46 N. Y. 384; 
 Cambridge Valley Bank r. Delano, 48 N. Y. 326; Hamilton V. Nutt, 34 
 Conn. 501 ; Baker V. Matcher, 25 Mich. 53 ; Hetherington V. Clark, 30 
 Pa. St. 393; Morris v. Wadsworth, 17 Wend. 103; Humphreys v. New- 
 man, 51 Me. 40; Tripe v. Marcy, 39 N. H. 439; Leach V. Beattie, 33 
 Vt. 195; Buchanan V. International Bank, 78 111. 500; Montefiore V. 
 Browne, 7 H. L. Cos. 241; Viele v. Judson, 82 N. Y. 32. 
 
 so Greene v. Witherspoon, 37 La. An. 751. 
 
 si Frost V. Beekman, 1 Johns. Ch. 299 ; Beekman v. Frost, 18 Johns. 
 544. See ante, Sec. 338; Jennings v. Wood, 20 Ohio 261; Wyatt v. 
 848
 
 CH. XXIII.] REQUISITES OF A DEED. 584 
 
 be the case where a deed absolute on its face was recorded 
 without a defeasance and such deed was intended to operate 
 as a mortgage. A purchaser from such mortgagee would not 
 be charged with notice of any other title than that of an abso- 
 lute owner. 82 The same rule applies where an absolute con- 
 veyance is made to one who was intended to take title as trus- 
 tee for another. 83 And in some States a failure to index the 
 deed will deprive the record of the constructive notice. 84 But 
 the absence in the record of some material part of the deed is 
 not conclusive proof of the fact that the defect appears in 
 the original. 85 
 
 It is also a requisite of registration, in order to raise con- 
 structive notice to a purchaser, that the deed be recorded in 
 the county and State in which the land conveyed lies. 86 So 
 also will the record be defective where a mistake is made as to 
 the books in which the instrument is recorded, as where a 
 
 Barwell, 19 Ves. 439; Beekman V. Frost, 18 Johns. 544; Tarrell V. An- 
 drews Co., 44 Mo. 309; Jennings V. Wood, 20 Ohio 261. 
 
 sa Jacques v. Weeks, 7 Watts 261, 271; Orvis v. Newell, 17 Conn. 97; 
 Bailey V. Myrick, 50 Me. 171; Brown V. Dean, 3 Wend. 208; James v. 
 Morey, 2 Cow. 246; Dey V. Dunham, 2 Johns. Ch. 182; Freidley v. 
 Hamilton, 17 Serg. & R. 70; Jaques V. Weeks, 7 Watts 261, 287; Ed- 
 wards V. Trumbull, 1.4 Wright 509; Hendrickson's Appeal, 12 Harris 
 363; Cogan v. Cook, 22 Minn. 137. 
 
 ssFlynt v. Arnold, 2 Mete. 619; Mahoney v. Middleton, 41 Cal. 41, 
 50; Fallas V. Pierce, 30 Wis. 443; Sims v. Hammond, 33 Iowa 368; Van 
 Rensselaer v. Clark, 17 Wend. 25. See also post, Sec. 761 ; Crane v. 
 Turner, 6 Hun 357, 67 N. Y. 437 ; Digman v. McCollum, 47 Mo. 372, 
 375, 376; Farmer's Loan Co. v. Maltby, 8 Paige 361; Page v. Waring, 
 76 N. Y. 463, 407-469; Calder v. Chapman, 52 Pa. St. (2 P. F. Sm.) 
 359; Losey V. Simpson, 3 Stackt. Ch. 246. 
 
 84 Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772 ; Barney v. Mc- 
 Carty, 15 Iowa 522; Whatley v. Small, 25 Iowa 188. Contra, Bishop v. 
 Schneider, 46 Mo. 472, 2 Am. Rep. 533 ; Schncll v. Stein, 76 Pa. St. 398, 
 18 Am. Rep. 416; Lane v. Duchac, 73 Wis. 646. 
 
 ss Todd v. Union Dime Sav. Bank, 118 N. Y. 337, 23 N. E. Rep. 299. 
 
 se King v. Portis, 77 X. C. 25; Astor v. Wells, 4 Wheat. 466; Lewis 
 v. Baird, 3 McLean 56; Kerns v. Swope, 2 Watts 75; Hundley v. Mount, 
 8 Sm. & Mar. 387; St. John v. Conger, 40 111. 535; Stewart f. Mc- 
 Sweeney, 14 Wis. 468. 
 
 64 849
 
 585 REQUISITES OF A DEED. [PART III. 
 
 mortgage is recorded in the book for absolute conveyances 
 and vice versa. 81 
 
 585. From what time does priority take effect. As a gen- 
 eral proposition, in the absence of special rules, the priority 
 acquired by the registration takes effect from the date of the 
 record. 88 And the date of the record is taken at the time 
 when the deed was deposited for registration. 89 But in some 
 of the States the recording law provides that if a deed is re- 
 corded within the time allowed by law, it relates back to the 
 time of delivery of the deed, and has priority over a subse- 
 quently executed deed which has been previously recorded. 
 Statutory provisions of this character are to be found in Ohio, 
 Kentucky, Mississippi, Georgia, South Carolina, Pennsylvania, 
 Alabama, Indiana, Delaware, Tennessee, and Maryland. 90 
 The time allowed for recording varies with the different 
 States. If in these States a deed has been recorded after the 
 expiration of the time allowed by law, the record gives con- 
 
 87 Leech's Appeal, 8 Wright, 140; Calder v. Chapman, 52 Pa. St. (2 
 P. F. Sm.) 359; McLanahan v. Reeside, 9 Watts 508; Colomer v. Mor- 
 gan, 13 La. An. 202; Grimstone V. Carter, 3 Paige 421; Viele r. Jud- 
 son, 82 N. Y. 32; Mut. Life Ins. Co. v. Dake, 1 Abb. N. C. 381; Throck- 
 morton V. Price, 28 Texas 605; Green v. Garrington, 16 Ohio St. 548. 
 But see contra, Speer v. Evans, 47 Pa. St. 141, per Woodward. J. ; Prin- 
 gle v. Dunn, 37 Wis. 449, 460, 461; Van Throniley v. Peters, 26 Ohio 
 St. 471. 
 
 884 Kent's Com. 457; Gushing v. Hurd, 4 Pick. 252; Goodsell V. 
 Sullivan, 40 Conn. 83; Robinson v. Willoughby, 70 N. C. 658; Flem- 
 ing v. Burgin, 2 Ired. Eq. 584; Leggett v. Bullock, Busb. L. 283; Rood 
 v. Chapin, Walk. Ch. 79; Westbrook v. Gleason, 79 N. Y. 23, and cases 
 cited; Dickenson v. Glenney, 27 Conn. 104; Patten v. Moore, 22 N. H. 
 382, 384; Dacoway V. Gait, 20 Ark. 190; Senter v. Turner, 10 Iowa 
 517; Forepaugh V. Appoid, 17 Mon. 625, 631; Porter v. Sevey, 43 Me. 
 515. 
 
 89 Den V. Richmond, 1 Green (N. J.) 52; Gill V. Fauntleroy, 3 B. 
 Mon. 177; Lane v. Duchac, 73 Wis. 646; Kessler v. State, 24 Ind. 315; 
 Coffin V. Ray, 1 Mete. 212; Thomas V. Blackemore, 5 Yerg. 113, 124; 
 May v. McKeenon, 6 Humph. 209. 
 
 o3 Washburn on Real Prop. 320, 321; 2 Pomeroy Eq. Jur. 86; cases 
 of third and fourth class. 
 850
 
 CH. XXIH.] REQUISITES OP A DEED. 586 
 
 structive notice from the time of the record, but does not 
 relate back to the time of delivery. 91 
 
 586. What constitutes sufficient notice of title Posses- 
 sion. As has been already stated, not only is an unrecorded 
 deed good against the grantor, his heirs, devisees and subse- 
 quent voluntary grantees, but it is also good against sub- 
 sequent purchasers for value, if they are charged with notice 
 of the prior deed. In order to bind a subsequent purchaser 
 with notice, he must have actual notice of the deed, or knowl- 
 edge of such facts which would set a prudent man upon his 
 inquiry, and as a deduction from this rule, the law imputes 
 to a purchaser a knowledge of every fact which appears upon 
 the muniments of title, or which one should inquire after in 
 the investigation of the title. 92 Thus, a deed in the chain of 
 title discovered by the investigator is constructive notice of 
 all other deeds referred to in the deed which was discovered. 93 
 And the notice that the grantor had made a prior deed of the 
 
 i McRaven v. McGuire, 9 Smed. & M. 39 ; Ledger t. Doyle, 1 1 Rich. 
 L. 109; Anderson v. Dugas, 29 Ga. 440; Lightner v. Mooney, 10 Watts. 
 407; Belk v. Massey, 11 Rich. L. 614; Beem . Lockhart, 93 N. C. 191; 
 King v. Fraser, 23 S. C. 545; Fleschner v. Sumpter, 12 Or. 161; Hard- 
 away v. Semmes, 24 Ga. 305; Doe V. Bank of Cleveland, 3 McLean 
 140; Smith v. Smith, 13 Ohio St. 532; Williams V. Beard, 1 S. C. 309; 
 Strokes v. Hodges, 11 Rich. Eq. 135; Bank of State v. S. C. Man. Co., 
 3 Strobh. 190; Tact v. Crawford, 1 McCord 265; McClure v. Thistle's 
 Exrs., 2 Gratt. 182; Rearsoner v. Edmundson, 5 Ind. 393; Byles, r. 
 Tome, 39 Md. 461; Hoffman V. Strohecker, 7 Watts 90; Nice's Appeal, 
 54 Pa. St. 200; Britton's Appeal, 45 Pa. St. 172; Brooke's Appeal, 64 
 Pa. St. 127; Boggs v. Varner, 6 W. & S. 469; Epley v. Withrow, 7 
 Watts 167; Randall v. Silverthorn, 4 Barr. 173; Hetherington V. Clark, 
 6 Casey 393; Bellas v. McCarty, 10 Watts 13; Phillips v. Bank of 
 Lewistown, 6 Harris 394; Mott v. Clark, 9 Barr. 399; Lightner v. 
 Mooney, 10 Watts, 407 ; Huffman v. Strohecker, 7 Id. 86. 
 
 z Mills f. Smith, 3 Wall. 33; Jackson v. Livingston, 10 Johns. 374; 
 Maupin v. Emmons, 47 Mo. 306; Brush v. Ware, 15 Pet. 93; Jumel v. 
 Jumel, 7 Paige 591; Burch V. Carter, 44 Ala. 115; Baltimore, etc., V. 
 White, 2 Gill 444; Slattery v. Schwannecke, 118 N. Y. 543; Lee v. 
 Ogden, 83 Ga. 325, 10 S. E. Rep. 349. 
 
 Aeer v. Westcott, 46 N. Y. 384; Cambridge Valley Bank v. Delano, 
 
 851
 
 586 REQUISITES OP A DEED. [PART III. 
 
 same land is sufficient, although the purchaser knew nothing 
 of its contents. 9 * Notice to a general agent or trustee is no- 
 tice to the principal or cestui que trust, if it is given to such 
 agent or trustee while he is engaged in the performance of his 
 duties as such. It is not notice to the principal or cestui que 
 trust, if communicated at any other time. 95 It is also gen- 
 erally held in the United States that possession of the grantee 
 under a prior unrecorded deed is constructive notice of the 
 title under which he claims. 98 But in some of the States it is 
 held that such possession is not to be considered conclusive 
 evidence of notice. The second grantee may show in rebuttal 
 that he made a diligent but unsuccessful inquiry. 97 And in 
 order that possession may raise a constructive notice of title, 
 it must be open, notorious, and unequivocal. A joint posses- 
 sion with the grantor, or one which is rendered ambiguous 
 from any other cause, will not be sufficient. 98 
 
 48 N. Y. 326; Hamilton v. Nutt, 34 Conn. 501; Baker v. Matcher, 25 
 Mich. 53. 
 
 9*Galland v. Jackman, 26 Cal. 87. 
 
 5 Myers v. Ross, 3 Head 59; Slatten v. Schwannecke, 118 N. Y. 543; 
 Shoemaker v. Smith (Iowa), 45 N. W. Rep. 744; Connell v. Connell, 32 
 W. Va. 319; Bunker v. Gordon, 81 Me. 66; Constant v. University of 
 Rochester, 111 N. Y. 604; Constant V. Am. Baptist, etc., Society, 58 
 N. Y. Super. 170. 
 
 Lea v. Polk Co. Copper Co., 21 How. 493; Helms v. May, 29 Ga. 
 121; Maupin v. Emmons, 47 Mo. 307; Coleman v. Barklew, 3 Dutch. 
 357; Watrous V. Blair, 32 Iowa 63; Berg v. Shipley, 1 Grant's Cas. 
 429; Billington v. Welsh, 5 Binn. 129; McGlaughlin v. Holman (Wash.), 
 24 Pac. Rep. 439; Bassett v. Wood, 55 Hun 587; Toland v. Corey 
 Utah), 24 Pac. Rep. 190; Griffin V. Haskins, 22 111. App. 264; Phelan 
 v. Brady, 19 Abb. N. C. 289; s. c. I N. Y. S. 626; Smith v. Gibson, 25 
 Neb. 511; Bright v. Buckman, 39 Fed. Rep. 243. 
 
 97 Pomroy v. Stevens, 11 Mete. 244; Dooley v. Wolcott, 4 Allen 406; 
 Mara v. Pierce, 9 Gray 306 ; Nutting v. Herbert, 37 N. H. 346 ; Fair V. 
 Stevenot, 19 Cal. 490. 
 
 98 Billington v. Welsh, 5 Binn. 129; Patten v. Moore, 32 N. H. 384; 
 Truesdale v. Ford, 37 111. 210; Lindley v. Martindale, 78 Iowa 379; 
 Ellis v. Young, 31 S. C. 322; Matesky v. Feldman, 75 Wis. 103. For 
 validity of unrecorded deed or mortgage, as to all those with actual 
 notice, see LeCorta v. De Corte (Fla. 1905), 39 So. Rep. 58. 
 
 852
 
 SECTION II. 
 
 COMPONENT PARTS OF A DEED. 
 
 SECTION 587. Deeds-poll and of indenture. 
 
 588. Component parts of a deed. 
 
 589. The premises. 
 
 590. Description General statement. 
 
 591. Contemporanea Expositio est optima, et fortissimo, in lege. 
 
 592. Falsa demonstratio non nocet. 
 
 593. Description in conveyance of joint-estates. 
 
 594. The elements of description. 
 
 595. Monuments Natural and artificial. 
 
 596. Artificial monuments in United States Surveys. 
 
 597. Non-navigable streams. 
 
 598. Navigable streams. 
 
 599. What is a navigable stream. 
 
 600. Ponds and lakes. 
 
 601. Highways. 
 
 602. Walls, fences, trees, etc. 
 
 603. Courses and distances. 
 
 604. Quantity. 
 
 605. Reference to other deeds, maps, etc., for description. 
 
 606. Appurtenants. 
 
 607. Necessity of use controls grant of easement as appurte- 
 
 nant. 
 
 608. Exception and reservation. 
 
 609. Habendum. 
 
 610. Reddendum. 
 
 611. Conditions. 
 
 587. Deeds-poll and of indenture. After explaining the 
 requisites of a deed to convey land, it is necessary to present 
 the formal and component parts. But before proceeding to 
 the discussion of them in their regular order, reference must 
 be made to the two kinds of deeds known to the law, and 
 differing in form, viz. : deeds of indenture, and deeds-poll. 
 A deed of indenture is a deed consisting of as many parts as 
 
 853
 
 587 COMPONENT PARTS OF A DEED. [PART III. 
 
 there are parties. Originally, these parts, or copies, were 
 written on the same piece of paper or parchment, and for the 
 purpose of identifying the several parts, they were cut apart 
 in an irregular line, somewhat resembling the teeth of a saw, 
 instar dentium, some word having been written over the pro- 
 posed line of severance. It is from this quaint method of 
 execution that the name indenture is derived. But this prac- 
 tice is rarely, if ever, followed now, and a deed of indenture 
 means simply a deed executed by all the parties, and con- 
 sisting of as many parts or copies as there are parties. For- 
 merly, it was customary for each party to execute only one 
 and a different part, and the part executed by the grantor 
 was called the original, while that which was executed by the 
 grantee was called the counterpart. But now it is usual for 
 both parties to execute each part." A deed-poll is designed 
 simply to transfer the grantor's interest, and is executed by 
 him alone. 1 Deeds-poll are in the first person, while deeds 
 of indenture are in the third person. But this is a mere 
 formality, the non-observance of which will not invalidate the 
 deed ; and, although the deed is in form one of indenture, it 
 will be good as a deed-poll, if the grantor executes it alone. 2 
 Indeed, the distinction is of very little practical value. Al- 
 though it is said that a deed of indenture is a stronger deed 
 for raising an estoppel against the grantee, 3 yet a deed-poll 
 can and does raise all the estoppels necessary for the protec- 
 tion of the grantor's interests, and by accepting the deed-poll 
 the grantee takes the estate so granted, subject to all the con- 
 
 93 Washburn on Real Prop. 311; Co. Lit. 229 a, Butler's note 140; 
 Dyer v. Sandford, 9 Mete. 395; Dudley v. Sumner, 5 Mass. 438. 
 
 13 Washburn on Real Prop. 311; Dyer V. Sandford, 9 Mete. 395; 
 Giles v. Pratt, 2 Hill (S. C.) 439. 
 
 23 Washburn on Real Prop. 312; Hallett V. Collins, 10 How. 174; 
 Hipp v. Hackett, 4 Texas 20. 
 
 33 Washburn on Real Prop. 312; Finley V. Simpson, 2 N. J. 311. 
 " While only the parties to a deed of indenture can take a present in- 
 terest, yet persons not parties, such as after-born children, may take 
 an interest in futuro." Hall V. Wright (Ky. 1905), 87 S. W. Rep. 1129, 
 27 Ky. Law Rep. 1185. 
 854
 
 CH. XXm.]' COMPONENT PARTS OF A DEED. 588 
 
 ditions, exceptions, reservations, and conditions contained in 
 the deed. If the deed is to operate as a deed of exchange, 
 or one of partition, all parties must join in the execution of 
 the deed, and the deed must be an indenture, since in those 
 cases each party is, successively, and in respect to his estate 
 thus conveyed, a grantor. There is a technical difference 
 between deeds-poll and deeds of indenture still prevailing, 
 in respect to the form of action upon the grantee's covenants. 
 In some of the States, where the common-law pleading still 
 prevails, it is held that the action on the grantor's covenant 
 in a deed-poll must be assumpsit, since his agreement or con- 
 tract is not one under his seal. And no doubt this is the 
 correct view. 4 But in the so-called code States, viz., where 
 the common-law pleading has been supplanted by the New 
 York code of procedure, this distinction has passed away 
 with the abolition of all forms of actions. 5 
 
 588. Component parts of a deed. These parts have been 
 divided and named by Lord Coke as follows: the premises, 
 habendum, tenendum, reddendum, condition, warranty, and 
 covenants. And although it is advisable, ex abundante cau- 
 tela, to follow the form and order here prescribed, making 
 use of the technical and thoroughly adjudicated phraseology, 
 it is not absolutely necessary. If a deed contains all the requi- 
 sites hereinbefore explained, it will be a good and effective 
 deed, even though the various elements are presented in the 
 most irregular order, and in the most informal language. The 
 premises is the only essential part of a deed for the convey- 
 ance of an estate. 8 
 
 4 Goodwin v. Gilbert. 9 Mass. 510; Newell v. Hill, 2 Mete. 180; Hins- 
 dale v. Humphrey, 15 Conn. 431; Johnson v. Massy, 45 Vt. 419; Maule 
 v. Weaver, 7 Pa. St. 829. 
 
 5 Atlantic Dock Co. v. Leavett, 54 N. Y. 34. 
 
 3 Washburn on Real Prop. 365; Co. Lit. 6 a, 7 a; 4 Kent's Com. 
 461; Roe v. Tramnarr, Willes 682; Staton v. Mullis, 92 N. C. 623. 
 
 855
 
 590 COMPONENT PARTS OF A DEED. | 1'AKT III. 
 
 589. The premises. The term, premises, is given to all 
 that part of a deed which precedes the habendum clause, and 
 generally includes the names of the parties, the recitals which 
 may be necessary to an explanation of the deed and its opera- 
 tion, the consideration and receipt of the same, the operative 
 words of conveyance, description of the thing granted, and, 
 if it is a deed of indenture, the date. 7 But these may appear 
 in other parts of the deed, and will be equally effective. And 
 it has been held that where the premises do not contain the 
 name of the grantee, or even sufficient operative words of 
 conveyance, these may be supplied by the habendum. 8 This 
 is but an application of the general principle, already enun- 
 ciated, that a logical or systematic arrangement of the parts 
 is not essential. All the elements of the premises have been 
 already fully discussed, except the matter of description of 
 land granted, and nothing further need be said here concern- 
 ing them. We will, therefore, proceed to a discussion of the 
 description. 
 
 590. Description General statement. At first blush, it 
 would appear easy enough to describe specifically and clearly 
 what is granted, and if extreme caution was observed in every 
 case, in framing the description, there would be little need 
 of rules of construction. For a clearly written description 
 can never be controlled by parol evidence. 9 But at times so 
 little precaution is taken, and so many uncertainties and in- 
 consistencies creep in, that resort must be made to established 
 rules of construction in order to ascertain the intention of the 
 parties. And in construing a deed, very little attention, if 
 any, is paid to the punctuation of the description. 10 If a 
 
 7 3 Washburn on Real Prop. 366. 
 
 83 Washburn on Real Prop. 366; Staton v. Mullis, 92 N. C. 623; 
 Wallace v. Crow (Tex.), 1 S. W. Rep. 372; post, Sec. 609. See Thomp- 
 son v. Speck (Tenn 1905), 2 Tenn. Ch. App. 759. 
 
 Broom's Leg. Max. 477; Cole V. Lake Co., 54 N. H. 278; Hannum 
 v. West Chester, 70 Pa. St. 472. 
 
 103 Washburn on Real Prop. 397; Doe v. Martin, 4 T. R. 65; Ewing 
 v. Burnett, 11 Pet. 54; Bunn v. Wells, 94 N. C. 67. 
 856
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 590 
 
 description is hopelessly uncertain, so that the thing granted 
 cannot be ascertained from the deed with any reasonable de- 
 gree of certainty, the deed will be void. 11 But if it is pos- 
 sible to gather the intention from the description by any rea- 
 sonable rules of construction, it will be enforced, 12 it matters 
 not how general the description may be. 13 And in applying 
 these rules of construction on the assumption, particularly in 
 a deed-poll, that the deed is in the language of the grantor, 
 and he is in fault, if uncertainties or inconsistencies arise, the 
 deed is construed most favorably to the grantee. But this is 
 only done when all other rules fail to remove the doubt. 14 
 Another fundamental principle is that a rational intention 
 must be sought after. The construction must be reasonable 
 and consistent with common sense. 15 In order to ascertain 
 the intention, it is sometimes necessary that resort should be 
 
 11 Presbrey v. Presbrey, 13 Allen 283; Walters v. Breden, 70 Pa. St. 
 238; Wofford v. McKinna, 23 Texas 45; 3 Washburn on Real Prop. 381; 
 Harrell v. Butler, 92 N. C. 20; Tryon V. Huntoon/67 Cal. 325; Cun- 
 ningham v. Thornton, 28 111. App. 58; Coffey V. Hendricks, 66 Texas 
 676, 2 S. W. Rep. 47; Blow v. Vaughan, 105 N. C. 198, 19 S. K Rep. 
 891. See Kennedy v. Moness (N. C. 1905), 50 S. E. Rep. 450. 
 
 "Abbott V. Abbott, 51 Me. 582; Bond v. Fay, 12 Allen 88 ; Crafts 
 v. Hibbard, 4 Mete. 452; Smith V. Green, 41 Fed. Rep. 455; Westmore- 
 land v. Carson, 76 Texas 619; Smith v. Brown, 66 Texas 543, 1 S. W. 
 Rep. 273; Smith v. Greaves, 15 Lea 459; Coe V. Ritter, 86 Mo. 277; 
 Prior v. Scott, 87 Mo. 303; Wabash, etc., R. R. Co. v. McDougal, 113 111. 
 603; Mann v. State, 116 Ind. 383. 
 
 "Smith v. Westall, 76 Texas 509, 13 S. W. Rep. 540; Witt v. Har- 
 lan, 66 Texas 660, 2 S. W. Rep. 41; Galbraith v. Engleke (Tex.), 1 S. 
 W. Rep. 346. " A description of land as ' ten acres of land situated in 
 [a certain district], where I now reside,' is not too indefinite to be 
 made certain by parol evidence." Brice V. Sheffield (Ga. 1903), 44 S. E. 
 Rep. 843. 
 
 i* Worthington v. Hylyer, 4 Mass. 205; Clough v. Bowman, 15 N. H. 
 504; Sanborn v. Clough, 40 N. H. 339; Carroll v. Norwood, 5 Har. & 
 J. 155 ; Vance v. Fore, 24 Cal. 446. See Negaunee Iron Co. v. Iron 
 Cliffs Co. (Mich. 1903), 90 N. W. Rep. 468. 
 
 iBLyman v. Arnold, 5 Mason 198; Day v. Adams, 42 Vt. 510; Ma- 
 goon v. Harris, 46 Vt. 271. See Abercrombie v. Simmons (Kan. 1905), 
 81 Pac. Rep. 208. 
 
 857
 
 590 COMPONENT PARTS OF A DEED. [PART III. 
 
 had to parol evidence. But this can only be done when there 
 is some uncertainty arising outside of the deed. Then parol 
 evidence is admissible to explain the ambiguities arising in 
 this manner by showing the circumstances surrounding the 
 parties,* explaining words of art and by proof of any other 
 facts which will tend to render certain the intentions of the 
 parties. 16 Parol evidence, however, is inadmissible to ex- 
 plain away an ambiguity which appears upon the face of the 
 deed, as where the deed shows upon its face that the descrip- 
 tion applies equally to two lots. 17 . When the deed contains 
 everything necessary for a correct understanding of the in- 
 tention of the parties, and there is, therefore, no uncertainty 
 or ambiguity, parol evidence cannot control the construction 
 or add to the provisions of the deed. 18 Where the deed, upon 
 a reasonable construction, conveys other property, or imposes 
 other restrictions or conditions than were intended by the 
 parties, the courts, more particularly those of equity, are 
 authorized, either by statute or under the general equitable 
 jurisdiction, to reform it, so as to conform to the intention of 
 the parties. 10 But the reformation must be necessary to 
 effectuate the intention of the parties. It will not be ordered 
 
 is Shore V. Wilson, 9 Cl. & Fin. 556; Eaton v. Smith, 20 Pick. 150; 
 Putnam v. Bond, 100 Mass. 58; Charles v. Patch, 87 Mo. 450; Wabash, 
 etc., R. R. Co. v. McDougal, 113 111. 603; Mack V. Bensley, 63 Wis. 80; 
 Thompson v. S. Cal. M. R. Co., 82 Cal. 497, 23 Pac. Rep. 130; East- 
 man v. St. Anthony, etc., Co., 43 Minn. 60, 44 N. W. Rep. 882; West- 
 moreland v. Carson, 76 Texas 619; Bellinger Co. v. McDowell, 99 Mo. 
 632; McKinley V. Smith, 29 111. App. 106; Brice V. Sheffield (Ga. 1903), 
 44 S. E. Rep. 843. 
 
 " Brandon V. Leddy, 67 Cal. 43. 
 
 is Bond V. Fay, 12 Allen 88; Caldwell V. Fulton, 31 Pa. St. 489; Mor- 
 rison v. Wilson, 30 Cal. 347; Lippett v. Kelly, 46 Vt. 516; Gardt v. 
 Brown, 113 111. 475, 55 Am. Rep. 430; Matley V. Long, 71 Md. 585; Hoi- 
 comb V. Mooney, 13 Or. 513, 11 Pac. Rep. 274; Bradish v. Yocum, 130 
 111. 386, 23 N. E. Rep. 114. See Dorr v. Reynolds, 26 Pa. Super. Ct. 
 139. 
 
 iMetcalf v. Putnam, 9 Allen 97; Canedy v. Marcy, 14 Gray 373; 
 Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 317; Adams v. 
 Stevens, 49 Me. 362; Cramer v. Burton, 60 Barb. 225; Andrews V. 
 858
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 591 
 
 where the uncertainty may be removed by the application of 
 well-known rules of construction. 20 Nor will a deed be re- 
 formed because the parties have mistaken the legal operation 
 of the deed. 21 But reformation of instruments is a branch 
 of equity jurisprudence, and does not properly belong to a 
 work "on Real Property. Suffice it to say that, until it is 
 reformed, an absolutely defective deed conveys nothing. 
 
 591. Contemporanea exposito est optima et fortissima in 
 leg-e. In construing deeds, courts endeavor to place them- 
 selves in the position of the parties at the time of the convey- 
 ance, in order to ascertain what is intended to be conveyed. 
 For, in describing the property, parties are presumed to refer 
 to its condition at that time, and the meaning of their terms 
 of expression can only be properly understood by a knowledge 
 of their position and that of the property conveyed. 22 Thus, 
 where the channel of a stream running through a tract of 
 land, was changed by the proprietor, and he subsequently 
 sold it in parcels to different persons, so that the new channel 
 
 Gillespie, 47 N. Y. 487; Use v. Laimsheimer, 76 Texas 459; Stafford 
 t>. Giles (Pa.), 19 Atl. Rep. 1028; McShane V. Main, 62 N. H. 24. 
 
 20 White V. White, L. R. 15 Eq. 247; Andrews v. Spurr, 8 Allen 416; 
 Clement V. Youngman, 40 Pa. St. 344; Keene's Appeal, 64 Pa. St. 274; 
 Mills V. Lockwood, 42 III. 111. And .the mistake must have been 
 mutual. Kruse v. Koelzer (Wis. 1905), 102 N. W. Rep. 1072. "A 
 court of equity will not decree the correction of a mistake in a deed 
 of voluntary conveyance." Henry v. Henry ( 111. 1905 ) , 74 N. E. Rep. 
 126. 
 
 21 Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 317; Glass v. 
 Hulburt 102 Mass. 44; Canedy v. Marcy, 13 Gray 363; Hutchings v. 
 Huggins, 59 111. 32. 
 
 22 Dunklee v. Wilton R. R., 24 N. H. 489 ; Richardson v . Palmer, 38 
 N. H. 218; Connery v. Brooke, 73 Pa. St. 84; Commonwealth v. Rox- 
 berry, 9 Gray 493; Abbott v. Abbott, 51 Me. 581; Lane v. Thompson, 
 43 N. H. 324; Thompson v. Southern Cal. M. R. Co., 82 Cal. 497. 23 
 Pac. Rep. 130; Staples v. May (Cal.), 23 Pac. Rep. 710. "In con- 
 struing a doubtful description in a deed, the court will consider the 
 position of the contracting parties and circumstances, and interpret 
 the language in the light of the circumstances." Abercrombie v. Sim- 
 mons (Kan. 1905), 81 Pac. Rep. 208. 
 
 859
 
 592 COMPONENT PARTS OF A DEED. [PART III. 
 
 was completely within the boundaries of one parcel, the 
 grantee of this parcel could not, by restoring the stream to 
 its. old channel, inundate the other parcels. 23 And if at the 
 time of the conveyance by the government of land bounding 
 on a stream, the stream was declared by act of Congress to 
 be navigable, making the boundary line the low-water mark 
 on the shore, a subsequent repeal of the act of Congress can 
 have no effect on the location of the boundary line. 24 So, 
 also, if the grant was made of a farm, describing the same, 
 but not particularizing what parcels were included under the 
 general description, all parcels will pass by the deed which 
 weie at the time of the conveyance used and occupied to- 
 gether. 26 Where the description is susceptible of two con- 
 structions, the extent of the possession will control. 26 And 
 where, at the time of the conveyance, the grantor had, in addi- 
 tion to some lands, a right of entry upon the breach of a con- 
 dition, and the breach had not yet occurred, the land acquired 
 by a subsequent exercise of the right of entry was held not to 
 pass under a mortgage of all his rights and interests in lands 
 in C. 27 
 
 592. Falsa demonstratio nou nocet. It is a general rule 
 of construction that the deed should be so construed, that the 
 whole deed shall stand and be enforced. 28 If this is impos- 
 sible, and the description contains several elements of descrip- 
 tion, all of which are necessary to the identification of the 
 property intended to be conveyed, the deed will be void if no 
 property of the grantor can be found which will correspond 
 
 23 3 Washburn on Real Prop. 384 ; Roberts t;. Roberts, 55 N. Y. 275. 
 See, also, Buras v. O'Brien (L*u), 7 So. Rep. 632; St. Louis, etc., Ry. 
 Co. V. Ramsey (Ark.), 13 S. W. Rep. 931. 
 
 2* Serrin v. Grefe, 67 Iowa 196. 
 
 25 Bell v. Woodward, 46 N. H. 337. See Webb v. Walters (Tex. 
 1905), 87 S. W. Rep. 1051. 
 
 26 Booth v. Patte, L. R. 15 App. Cas. 188. 
 
 27 Richardson V. Cambridge, 2 Allen 118. 
 
 28 Walters v. Breden, 70 Pa. St. 238. See Hubbird v. Fain, 137 Fed, 
 Rep. 822. 
 
 860
 
 CH. XXin.] COMPONENT PARTS OF A DEED. 5C2 
 
 with every part of the description. 29 But if the intention, as 
 gathered from the deed, does not make it necessary to satisfy 
 all the elements of the description, or if parts of the descrip- 
 tion are inconsistent with other parts, and enough of them 
 are consistent to identify the property intended by the parties 
 to pass, whatever is repugnant is rejected, and the deed is 
 enforced under this construction. 30 Where two inconsistent 
 parts of the description are equally balanced, it has been held 
 that the grantee may choose that which is most favorable to 
 him. 31 The first part of the description will prevail over the 
 last, provided both appear in the granting portion of the deed ; 
 and if one part is written and the other is printed, the written 
 part will prevail. 32 A particular description prevails over 
 and limits the application of a general description. 33 If, 
 therefore, a deed defines with reasonable certainty what is 
 intended to be conveyed, the fact that a portion of the de- 
 scription is not satisfied by the specific property will not in- 
 validate the conveyance. 34 But if there are lands in the pos- 
 session of the grantor which comply with all the particulars 
 
 293 Washburn on Real Prop. 400; Brown V. Saltonstall, 3 Me. 423; 
 Warren v. Coggswell, 10 Gray 76. See Kennedy r. Moness (N. C. 1905) 
 50 S. E. Rep. 450. 
 
 soCorbin V. Healy, 20 Pick. 514; Bond V. Fay, 8 Allen 212; Presbrey 
 v. Presbrey, 13 Allen 283; Doane v. Wilcutt, 16 Gray 371; Scull v. 
 Preiden, 92 N. C. 168; Chadwick v. Carson, 78 Ala. 166; Holston V. 
 Needles, 115 111. 461; Irving v. Cunningham, 66 Cal. 15; Gerald r. 
 Gerald, 31 S. C. 171; Maguire V. Bissell, 119 Ind. 345; Cake v. Cake, 127 
 Pa. St. 400; Casler v. Byers, 129 111. 657; Arabs v. Chicago, etc., R. R. 
 Co., 44 Minn. 266. 
 
 si Esty t;. Baker, 50 Me. 331; Melvin r. Proprietors, etc., 8 Mete. 27. 
 See Brandon v. Leddy, 67 Cal. 43. " When there are two descriptions 
 in a deed, which are inconsistent with each other, the grantee is at lib- 
 erty to select that which is most favorable to him." McBride v. Burns 
 (Tex. Civ. App. 1905), 88 S. W. Rep. 394. 
 
 32 Webb v. Webb, 29 Ala. 606; McNear v. McComber, 18 Iowa 17; 
 Duffield v. Hue, 129 Pa. St. 94. 
 
 83 Johnson Co. v. Wood, 84 Mo. 489. 
 
 34 Parker v. Kane, 22 How. 1 ; Crosby v. Bradbury, 20 Me. 61 ; Parks 
 f. Loomis, 6 Gray 467 ; Presbrey v. Presbrey, 13 Allen 283 ; Jackson v. 
 Clark, 7 Johns. 223; Lush v. Druse, 4 Wend. 313; Spiller v. Scribner, 
 
 861
 
 593 COMPONENT PARTS OP A DEED. [PART III. 
 
 of the description, then only such lands will pass by the deed, 
 although it might appear from evidence that other parcels are 
 intended to pass also. 35 In determining what is the falsa 
 demonstratio, which may be rejected without invalidating the 
 deed, it must be remembered that a particular or special de- 
 scription will generally control a general or implied descrip- 
 tion, in whatever order they may come. 36 
 
 593. Description in conveyances of joint estates. A ten- 
 ant cannot, without the consent of his co-tenants, give an 
 absolute title to any part of the estate, described by metes 
 and bounds, equal in value to his undivided share in the joint 
 estate, which will be binding upon his co-tenants. 37 And some 
 of the courts deny the efficacy of such a conveyance for any 
 purpose, without the consent of the co-tenants. It conveys 
 to the grantee no interest whatsoever in the general estate. 38 
 
 36 Vt. 246; Johnson V. Simpson, 36 N. H. 91 ; Weeks v. Martin, 10 N. Y. 
 S. 656; Trentman V. Neff (Ind), 24 N. E. Rep. 895. 
 
 ss Brown v. Saltonstall, 3 Me. 423 ; Morr.ell v. Fisher, 4 Exch. 591 ; 
 Warren V. Coggswell, 10 Gray 76; Griffithes V. Penson, 1 H. & Colt. 
 862; Llewellyn v. Jersey, 11 Mees. & W. 183. See Owsley v. Johnson 
 (Minn. 1905), 103 N. W. Rep. 903. "A deed of 'ten acres of Vmd 
 where I now reside ' is sufficiently identified by evidence that at the 
 time of its execution the grantor was living in the district named in 
 the deed on land which contained just 10 acres." Brice V. Sheffield (Ga. 
 1903 ) , 44 S. E. Rep. 843. 
 
 sa Smith V. Strong, 14 Pick. 128 ; Whiting f. Dewey, 15 Pick. 428 ; 
 Winn t?. Cabot, 18 Pick. 553; Dana v. Middlesex Bank, 10 Mete. 250; 
 Howell v. Saule, 5 Mason 410. But see Moran v. Somes (Mass.), 28 
 N. E. Rep. 152, where it is held that, where a deed conveys " all my 
 right, title and interest," it passes the whole estate of the grantor, 
 which were four undivided fifths, although the deed described the inter- 
 est to be three undivided fifths. 
 
 37 Brown V. Bailey, 1 Mete. 254; Nichols V. Smith, 22 Pick. 316; Pea- 
 body v. Minot, 24 Pick. 329; Whilton v. Whilton, 38 N. H. 127; Jew- 
 ett's Lessee v. Stockton, 3 Yerg. 492; Good V. Combs, 28 Texas 51; Mc- 
 Key v. Welch, 22 Texas 390. 
 
 ssSoutter V. Porter, 17 Me. 405; Phillips V. Tudor, 10 Gray 82; 
 
 Johnson V. Stevens, 7 Gush. 431; Cripper V. Morse, 49 N. Y. 67; 3 
 
 Washburn on Real Prop. 261 Cox V. McMullin, 14 Gratt. 84. But 
 
 where the joint estate consists of several distinct parcels, there is no 
 
 862
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 594 
 
 But he more rational and equitable theory would seem to be. 
 that such a conveyance would pass whatever was the grantor's 
 proportionate share in that part of the joint estate, and make 
 the grantee a co-tenant in the general estate to the extent of 
 the interest so conveyed. Thus, if one of two equal co-ten- 
 ants conveys his share in one-half of the joint estate, described 
 by metes and bounds, his grantee would become a co-tenant 
 with the others in an undivided one-fourth of the whole 
 estate. 39 For it is undisputed that if the owner of lands 
 grants a specified number of acres in the estate without de- 
 scribing them, his grantee will become a tenant in common 
 with him, his share being covered by the ratio which his 
 number of acres bore to the whole estate. 40 The description 
 by metes and bounds may be treated as surplusage, except 
 for the purpose of determining the grantee's aliquot share 
 in the entire joint estate. If the property has been divided 
 up into town lots, it is clear and beyond dispute, that a co- 
 tenant may by metes and bounds convey his undivided inter- 
 est in one or more of the lots. 41 
 
 594. The elements of description A full and complete 
 description gives monuments, courses, and distances, and the 
 quantity of land conveyed. The relative value of them, in 
 
 objection to the reconveyance of one co-tenant's interest in one parcel. 
 Butler v. Roys, 25 Mich. 53, 12 Am. Rep. 218; Peabody v. Minot, 24 
 Pick. 329. See Costello V. Graham (Ariz. 1905), 80 Pac. Rep. 336. 
 
 3 Reinicker V. Smith, 2 Har. & J. 421 ; Campan v. Godfrey, 18 Mich. 
 39. See Newton v. Home and Drury, 29 Wis. 531, 9 Am. Rep. 610; 
 Boylston Ins. Co. v. Davis, 68 N. C. 17, 12 Am. Rep. 624; Holcomb r. 
 Coryell, 11 N. J. Eq. 548; Jewett v. Foster, 14 Gray 496; Gibbs r. 
 Swift, 12 Gush. 393; Jackson v. Livingston, 7 Wend. 136; Wilford v. 
 McKinna, 23 Texas 45; Furrh v. Winston, 66 Texas 521; Charleston C. 
 
 6 C. R. R. v. Leech (S. E.), 11 S. E. Rep. 631; Howse v. Dew (Ala.).. 
 
 7 So. Rep. 239. Contra, Shackleford v. Bailey, 35 111. 391. 
 
 40 Jewett v. Foster, 14 Gray 496 ; Gibbs v. Swift, 12 Cush. 393 ; Pres- 
 ton v. Robinson, 24 Vt. 593; Jackson v. Livingston, 7 Wend. 136; Wof- 
 ford v. McKinna, 23 Texas 45; Schenck v. Evoy, 24 Cal. 110. Contra, 
 Shackleford v. Bailey, 35 111. 391. 
 
 ! Shepherd v. Jernigan, 51 Ark. 275. 
 
 863
 
 595 COMPONENT PARTS OF A DEED. [PART III. 
 
 determining the boundaries, is in the order given. Monu- 
 ments control the courses and distances, and both control the 
 quantity of land. 42 The reason for this order of preference 
 lies in the rule of construction, that where there is an incon- 
 sistency in the description, that element of description will 
 be followed as to which there is the least likelihood of a mis- 
 take. 43 And, generally, the description contains data for the 
 location of all four sides of the tract of land. But where 
 three are given, and there is sufficient description as to their 
 courses and distances to establish the fourth by reasonable 
 intendment, the deed will not be void. 44 
 
 595. Monuments Natural and artificial. There are two 
 kinds of monuments, natural, or those objects which are per- 
 manentj and are found upon the land ; and artificial, or those 
 which are placed there for the very purpose of pointing out 
 the boundary. Among the natural objects which may serve 
 as monuments may be mentioned trees, streams, ponds, or 
 lakes, shores and highways ; 45 and where reference is made . 
 in a deed to artificial monuments which do not then exist, they 
 
 42 Brown V. Huger, 21 How. 305; Powell v. Clark, 5 Mass. 35.">; 
 Llewellyn V. Jersey, 11 Mees. & W. 183; Hall t?. Davis, 3G N. H. 569; 
 Jackson V. Diefendorf, 1 Caines 493; Mann V. Pearson, 2 Johns. 37; 
 Drew V. Swift, 46 N. Y. 207; Mackentile V. Savoy, 17 Serg. & R. 104; 
 Commissioners V. Thompson, 4 McCord 434 ; Miller V. Cherry, 3 Jones 
 Eq. 29; Colton V. Seavey, 22 Cal. 496; Coburn v. Coxeter, 51 N. H. 
 158; Wilder v. Davenport, 58 Vt. 642; Friend V. Friend, 64 Mel. 321. 
 See Person v. Champbliss' Admr. (Miss. 1905), 38 So. Rep. 286. 
 " Wherever a deed refers to monuments actually erected as boundaries 
 of the land, they must prevail, whatever mistakes the deed may con- 
 tain as to courses and distances." Leverett V. Bullard (Ga. 1904), 49 
 S. E. Rep. 591. 
 
 *3 Miller v. Cherry. 3 Jones Eq. 39; Melvin V. Proprietors, etc.. 5 
 Mete. 28; Esty v. Baker, 50 Me. 311; Ferris v. Coover. 10 Cal. 023. 
 
 4* Commonwealth v. Roxbury, 9 Gray 490. See Wall v. Club St. 
 Co. (Texas 1905), 88 S. W. Rep. 534. 
 
 4BFlagg V. Thurston, 13 Pick. 159; Bloch v. Pfaff, 101 Mass. 538; 
 Bates r. Tymanson, 13 Wend. 30P; Carroll V. Norwood, 5 Har. &, J, 
 163; Smith v. Murphy, 1 Tayl. 303. 
 
 864
 
 CH. XXIII. ] ( COMPONENT PARTS OF A DEED. 595 
 
 may be located subsequently by the parties. They will then 
 control the courses and distances, although it may be possible 
 to show by parol evidence that the artificial monuments as 
 erected do not show the true line. 48 Parol evidence is not 
 admissible to control the boundaries in a deed. 47 But if the 
 monuments are lost, or have been moved, or there is doubt 
 as to which of the two objects was intended to be the monu- 
 ment, parol evidence is admissible to determine the monument 
 or its location. 48 And the question, where the boundaries are 
 and what is the location of the monuments, is one of fact for 
 the jury. 49 Natural monuments are higher in value than 
 artificial ones, and are always given the preference in the case 
 of an inconsistency in the description arising from a refer- 
 once to both. 50 Where a line is described as running from 
 one monument to another, it is always a straight line between 
 those two points. And if three monuments are referred to as 
 points on the boundary, the line must be straight from one 
 
 4fi Kennebec Purchase v. Tiffany, 1 Me. 219; Knowles V. Toothacker, 
 58 Me. 175; Corning v. Troy Co., 40 N. Y. 208; Waterman v. John- 
 son, 13 Pick. 261; Cleveland v. Flagg, 4 Gush. 81; Claney V. Rice, 20 
 Pick. 62; Hathaway v. Evans, 108 Mass. 270; Rockwell V. Baldwin, 
 53 111. 22; Smith v. Hamilton, 20 Mich. 433; Leverett V. Bullard (Ga. 
 1905), 49 S. E. Rep. 591; Elsea V. Adkins (Ind. 1905), 74 N. E. Rep. 
 242. 
 
 Parker v. Kane, 22 How. 1; Dean v. Erskine, 18 N. H. 83; Frost 
 v. Spaulding, 19 Pick. 445; Spiller V. Scribner, 36 Vt. 247; Drew V. 
 Swift, 46 N. Y. 209; McCoy V. Galloway, 3 Ohio 283. See Dorr v. 
 Reynolds, 26 Pa. Super. Ct. 139. 
 
 48 Stone V. Clark, 1 Mete. 378; Frost V. Spaulding, 19 Pick. 445; 
 Gratz V. Bates, 45 Pa. St. 504; Middleton V. Perry, 2 Bay 539; Colton- 
 v. Seavey, 22 Cal. 496. 
 
 4 Abbott V. Abbott, 51 Me. 581; Opdyke V. Stephens, 28 N. J. L. 90. 
 " The application of the description in a deed to the land is for the 
 jury." Snooks v. Wingfield (W. Va. 1903), 44 S. E. Rep. 277; Cole 
 v. Mueller (Mo. 1905), 86 S. W. Rep. 193; Neumeister v. Goddard 
 (Wis. 1905), 103 N. W. Rep. 241. 
 
 so Bolton v. Lann, 16 Texas 96 ; Falwood v. Graham, 1 Rich. 497 ; 
 Beahan . Stapleton, 13 Gray 427; Brown v. Huger, 21 How. 305; 
 Mclver v. Walker, 4 Wheat. 444 ; Newson v. Pryor, 7 Wheat. 7 ; Duren 
 
 55 865
 
 596 COMPONENT PARTS OF A DEED. [PART III. 
 
 monument to another successively. 51 Furthermore, if a line 
 is described as running from a given point to a natural object, 
 like a highway or stream, unless the course or length of the 
 line is given, it must be the shortest line drawn from the point 
 to the object, and must, therefore, be at right angle with the 
 stream or highway. 52 Where the line is described as run- 
 ning "between" two objects, the objects, as well as the land 
 lying between them, are excluded from the grant. So, also 
 when the description is "from" one object, "to" another. 53 
 
 596. Artificial monuments in the United States' surveys. 
 The public lands of the Western Territories, which became 
 the property of the United States government upon the 
 foundation of the present Union, were by acts of Congress 
 surveyed and divided up into townships, sections, and subdi- 
 visions of sections, as has been already explained. 54 When 
 afterwards these lands were sold to private individuals, they 
 were always described by referring to the number of the town- 
 ship, section, and subdivision of the section. The boundaries 
 of these sections and of the quarter and half sections were 
 marked for the most part by artificial monuments, which con- 
 stituted the corners of these tracts of land. If, therefore, the 
 deed calls for a certain quarter section of a certain section in 
 a certain township, a reference to the maps and field notes 
 
 v. Presberry, 25 Texas 512. See Marshall v. Corbett (N. C. 1905), 50 
 S. E. Rep. 210. 
 
 si Allen v. Kingsbury, 16 Pick. 235; Jenks V. Morgan, 6 Gray 448; 
 Hovey v. Sawyer, 5 Allen 585; Nelson V. Hall, 1 McLean 519; Caraway 
 v. Chancy, 6 Jones L. 364; Baker v, Talbott, 6 B. Mon. 179; McCoy V. 
 Galloway, 3 Ohio 382. " Ordinarily, a boundary line marked part of 
 the way will be continued in the same direction for the full distance." 
 Seitz V. People's Sav. Bank (Mich. 1905), 103 N. W. Rep. 545. 
 
 52 Van Gorden v. Jackson, 5 Johns. 474; Bradley v. Wilson, 58 Me. 
 360; Craig V. Hawkins, 1 Bibb. 64; Hicks V. Coleman, 25 Cal. 142; 
 Caraway v. Chancy, 6 Jones L. 364. 
 
 ssBonney V. Merrill, 52 Me. 256; Hatch V. Dwight, 17 Mass. 289; 
 Carbrey v. Willis, 7 Allen 370; Millett v. Fowie, 8 Cush. 150; Wells t\. 
 Jackson Iron Co., 48 N. H. 491. 
 
 "See ante, Sec. 519. 
 866
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 596 
 
 of the survey will determine the location of the land, for 
 maps and surveys are generally proper evidence for the estab- 
 lishment of boundaries, 55 and the United States Statutes makes 
 the field notes and plats of the original surveyor the primary 
 and controlling evidence of boundary. 56 These field notes 
 and the plats call for artificial monuments to designate the 
 corners of the tract, and when they are found, since artificial 
 monuments control distances and courses in government sur- 
 veys as well as in ordinary cases, 57 no difficulty will be ex- 
 perienced in ascertaining the boundaries, except in two cases : 
 First, if the deed calls for natural monuments, and the land 
 is described in part by reference to them; and secondly, 
 where the description consists in a reference to the township 
 and section, and it is ascertained that one or more of the 
 corners have been lost. In the first case, the general rule that 
 natural monuments control in the matter of boundary both 
 the artificial monuments and the courses and distances, ap- 
 
 "Haring V. Van Houten, 22 N. J. L. 61; Alexander v. Lively, 5 B. 
 Mon. 159; Bruce v. Taylor, 2 J. J. Marsh. 160; Steele v. Taylor, 3 A. 
 K. Marsh. 226; Madison City v. Hildreth, 2 Ind. 274; Tate v. Gray, 1 
 Swan 73; Carmichael v. Trustees, 4 Miss. 84; McClintock v. Rogers, 11 
 111. 279. " Where lands are conveyed by a reference to a plat, the plat, 
 with its notes, lines, etc., is as controlling as if such description were 
 written in the deed." Neumeister v. Goddard (Wis. 1905), 103 N. W. 
 Rep. 241. " Where meander corners of a government survey are lost 
 or obliterated, they are to be restored in accordance with the circular 
 of the United States Land Office of March 14, 1901." Kleven v. Gun- 
 derson (Minn. 1905), 104 N. W. Rep. 4. 
 
 sa U. S. Rev. Stat., Sec. 2396. "The boundary lines actually run 
 and marked in the surveys returned by the Surveyor-General shall be 
 established as the proper boundary lines of the sections or subdivisions 
 for which they were intended." Bruce v: Taylor, 2 J. J. Marsh. 160; 
 Steele v. Taylor, 3 A. K. Marsh. 226; McClintock v. Rogers, 11 111. 279. 
 See Hogg v. Lusk (Ky. 1905), 86 S. W. Rep. 1128. See Washington 
 Rock Co. v. Young, 80 Pac. Rep. (Utah) 382. 
 
 " Robinson v. Moore, 4 McLean 279; Esmond v. Tarbox, 7 Me. 61; 
 Hall v. Davis, 36 N. H. 569; Hunt V. McHenry, Wright 599; Bayless 
 v. Rupert, Wright 634; Bruckner v. Lawrence, 1 Dougl. (Mich.) 19; 
 Climer t;. Wallace, 28 Mo. 556. See Washington Rock Co. v. Young 
 (Utah), 80 Pac. Rep. 382. 
 
 867
 
 596 COMPONENT PARTS OP A DEED. [PART IH. 
 
 plies here in its full force, although the plats and field notes 
 would indicate a different location. 58 The second case pre- 
 sents a greater difficulty. It is a general rule of construction 
 that where the natural and artificial monuments cannot be 
 ascertained by any proper evidence, the courses and distances 
 must govern the location of the boundary, and this is also 
 the rule in respect to the lost corners in the government sur- 
 veys. 58 But before the courses and distances can determine 
 the boundary, all means for ascertaining the location of the 
 lost monuments must first be exhausted. Parol evidence is 
 admissible to establish the location of monuments, and even 
 hearsay evidence and evidence of general reputation are ad- 
 missible in such cases. 60 But in the case of government or 
 public lands, as a general rule, the courts and the parties rely 
 chiefly upon the surveys and plats returned by the Surveyor- 
 General for the evidence of boundary, and where the corners 
 are lost and cannot be established by parol evidence, the sur- 
 veys and plats only give the courses and distances. If the 
 surveys were accurate and the courses and distances given in 
 the field notes corresponded exactly with the actual location of 
 corners, a resort to these courses and distances would do com- 
 plete justice to all the parties interested in the ascertainment 
 of the boundary. But, as a matter of fact, the chains used 
 
 ss Brown v. Hager, 21 How. 305; Mclver v. Walker, 4 Wheat. 444; 
 Newsom v. Pryor, 7 Wheat. 7; Duren v. Presberry, 25 Texas 512; East 
 Omaha Land Co. V. Jeffreys, 40 Fed. Rep. 386 ; s. c. 134 U. S. 178. 
 
 sHeaton V. Hodges, 14 Me. 66; Dudd v. Brooke, 2 Gill 198; Bruck- 
 ner v. Lawrence, 1 Dougl. (Mich.) 19; Calvert v. Fitzgerald, 6 Litt. 
 391. See Witt v. Middleton (Ky. 1905), 86 S. W. Rep. 968. " WK/e, 
 on- an issue as to the location of a government corner by the surveyors, 
 the actual location of the corner is shown, the actual location controls, 
 though it does not correspond fully with the calls in the field notes." 
 Tyler v. Haggart (S. D. 1905), 102 N. W. Rep. 682. 
 
 eoBoardman v. Reed, 6 Pet. 341; Jackson v. McCall, 10 Johns. 377; 
 Lay v. Neville, 25 Cal. 545; Smith v. Shackelford, 9 Dana 452; Nixon 
 v. Porter, 34 Miss. 697; Smith v. Prewitt, 1 A. K. Marsh. 158; Stroud 
 V. Springfield, 28 Texas 649; Yates v. Shaw, 24 111. 367. See, for com- 
 petency of evidence of chainbearer, Marshall v. Corbett (N. C.), 50 S. 
 E. Rep. 210. 
 868
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 596 
 
 in making the measurements were stretched by constant use, 
 so that they were in most cases much longer than the standard 
 chain, thus making the courses and distances call for less land 
 than was actually included within the established corners. 
 The Supreme Court of Missouri, relying upon the rule that 
 courses and distances control the boundary when the monu- 
 ments are lost, has held that where a corner is lost the sur- 
 veyor must measure from the known corner on the eastern 
 line of the township or section the distance called for by the 
 plat and field notes, and the corner must be established at that 
 distance, the surplus of land being given to the western sec- 
 tion or quarter section. 61 This is contrary to the provisions of 
 the United States Statutes, which must govern in all disputes 
 as to the boundaries of government lands. It "is provided by 
 statute that "all the corners marked in the surveys, returned 
 by the Surveyor-General, shall be established as the proper 
 corners of sections or subdivisions of sections, which they 
 would intend to designate; and the corners of half and 
 quarter sections not marked on the surveys shall be placed as 
 nearly as possible equi-distant from two corners which stand 
 on the same line." This statutory provision clearly makes the 
 field notes the proper and the best means of ascertaining lost 
 corners, and the interpretation of the field notes must be gov- 
 erned largely, if not exclusively, by the principles of civil 
 engineering. The object being to ascertain the exact location 
 of a lost corner, it is necessary and the United States Statutes 
 require it, that the errors in the measurements should be 
 noted. If, therefore, the courses and distances. fall below the 
 actual amount of land included in the two contiguous sections 
 or subdivisions of sections, between which the boundary is 
 to be ascertained, the surplus of land should be divided be- 
 
 i Knight v. Elliott, 57 Mo. 322; Vaughn v. Tate, 64 Mo. 491; Major 
 r. Watson, 73 Mo. 665. And this seems also to be the position of the 
 court of Virginia upon a parallel case. Overton v. Devisson, 1 Gratt. 
 211. See Hogg v. Lusk (Ky.), 86 S. W. Rep. 1128; Washington Rock 
 Co. t?. Young (Utah), 80 Pac. Rep. 382. 
 
 869
 
 5i)7 COMPONENT PARTS OF A DEED. [PART III. 
 
 tweeu the two tracts of land in proportion to the respective 
 lengths of their lines in the plats. 62 
 
 597. Non-navigable streams Generally, where land is 
 bounded by a stream which is not navigable, the boundary 
 line is the center line of the stream, the filum aquce; and the 
 line changes its course with the natural and gradual change 
 in the current. 63 But it does not always follow that the 
 thread of the stream will be the boundary line, because the 
 stream is referred to in the deed. If the stream is mentioned 
 as the boundary in general terms, or the land is described 
 as "bounding on" or "running along" a river, the stream 
 will be held to be the monument and the thread of the stream 
 is the boundary line. And this is true, although the deed 
 describes the line on the stream as extending from one object 
 to another, both of which are on the shore; as, for example, 
 "bounding on" the stream and "extending from" one tree 
 on the bank to another. The termini of the boundary line 
 are ascertained by drawing lines at right angles with the 
 shore from these objects to the center of the stream. 64 But 
 
 62 This rule is recognized and adopted in Jones v. Kimble, 19 Wis. 
 429, and constitutes one of the printed instructions to the United States 
 deputy and county surveyors; and these instructions are by statute 
 made a part of every contract for surveying land. Sec. 2399, U. S. 
 Rev. Stat. 
 
 es Morrison v. Keen, 3 Me. 474; Hatch v. Dwight, 17 Mass. 289; Peo- 
 ple V. Canal Appraisers, 13 Wend. 355; Commissioners v. Kempshall, 20 
 Wend. 404; People v. Platt, 17 Johns. 195; Morgan v. Reading, 3 Smed. 
 & M. 366; Browne V. Kennedy, 5 Har. & J. 195; Hayes v. Bowman, 1 
 Rand. 417; Lynch v. Allen, 4 Dev. & B. 62; State v. Gimlanton, 9 N. 
 H. 461; Love v. White, 20 Wis. 432. See, Whittaker V. McBride, 65 
 Neb. 137, 90 N. W. Rep. 966, 197 U. S. 510; Edwards v. Woodruff, 25 
 Pa. Super. Ct. 575. 
 
 <Lunt v. Holland, 14 Mass. 150; Cold Springs Iron Works V. Tol- 
 land, 9 Cush. 492; Newhall v. Ireson, 13 Gray 262; Railroad v. Schur- 
 meier, 7 Wall. 286; Luce V. Carley, 24 Wend. 451; Varick v. Smith, 9 
 Paige Ch. 547; Robinson V. White, 42 Me. 218; Cox v. Freedley, 33 Pa. 
 St. 129 ; Norcross v. Griffiths, 65 Wis. 599. See, Whittaker v. McBride, 
 197 U. S. 510. 
 870
 
 CH. XXIII. ]j COMPONENT PARTS OF A DEED. 598 
 
 if the land is described as bounding on the bank or shore of 
 the stream, then the low-water mark on the banks will be the 
 boundary. The particular reference to the bank excludes the 
 stream. 65 Where the stream or its bank is the boundary line, 
 it follows its meanderings so that if the distance is given it is 
 ascertained by reducing the irregular lines of the shore to a 
 straight line. 66 
 
 598. Navigable streams. Where land is bounded by a 
 navigable stream, strictly so-called, i. e., where the tide ebbs 
 and flows, the boundary line is the high-water mark on the 
 shore. 67 But in the States where the large rivers of this 
 country are held to be navigable, although having no tide- 
 water, the boundary line is held on those rivers to be at low- 
 water mark. 68 But in both cases the riparian owner has, as 
 appurtenant to his ownership, the right to erect and maintain 
 wharfs and piers, subject to the governmental control neces- 
 
 Bradford v. Cressey, 45 Me. 9; Child v. Starr. 4 Hill 369; Halsey 
 v. McCormick, 13 N. Y. 296; Babcock v. Utter, 1 Abb. Pr. 27; Martin 
 v. Nance, 3 Head 650; Watson v. Peters, 26 Mich. 516; Litchfield v. 
 Ferguson, 141 Mass. 97; Carter V. Chesapeake, etc., R. R. Co., 26 W. 
 Va. 644, 53 Am. Rep. 116. 
 
 Calk v. Stribling, 1 Bibb. 122; Hicka v. Coleman, 25 Cal. 142; 
 People V. Henderson, 40 Cal. 32. 
 
 67 Canal Commrs. V. The People, 5 Wend. 423 ; Wheeler r. Spinola, 54 
 N. Y. 377; Niles V. Patch, 13 Gray 254; Stewart v. Fitch, 30 N. J. L. 
 20; Middleton V. Pritchard, 4 111. 520. See, Edwards v. Woodruff, 25 
 Pa. Super. Ct. 575. " Where a devisor owns land under the waters of 
 a river, separate devises of land on the east and west banks thereof, 
 where there is no clause limiting them, carry title to the thread of the 
 stream, though the river is navigable and the tide ebbs and flows 
 therein." Judgment (1903) 81 N. Y. S. 231, 79 App. Div. 174, re- 
 versed. Smith v. Bartlett (N. Y. 1905), 73 N. E. Rep. 63, 180 N. Y. 
 360. 
 
 os Stover v. Jack, 60 Pa. St. 339; Wood v. Appal, 63 Pa. St. 221; 
 Wainwright v. McCullough, 63 Pa. St. 66; Martin v. Evansville, 32 
 Ind. 85 ; Ensminger v. People, 47 111. 384 ; People r. Canal Commrs. 33 
 N. Y. 461; Edder v. Burrus, 6 Humph. 367; Martin v. Nance, 3 Head 
 650. 
 
 871
 
 599 COMPONENT PARTS OF A DEED. [PART III. 
 
 sary for the protection of the public. 69 The same rule applies 
 to land bounded by the sea or by the arms of the sea. The 
 boundary line is the high-water mark, and what is called the 
 shore or beach is the property of the State. 70 In Massachu- 
 setts, by statute, the common law has been changed, and now 
 riparian owners on navigable rivers and arms of the sea own 
 up to the low-water mark, 71 unless the land is described as 
 bounding on the beach, when the high-water mark becomes the 
 boundary line. 72 In determining the exact location of either 
 the low or high-water mark, reference is always had to the 
 ordinary or medium rise and fall of the water. 73 
 
 599. What is a navigable stream. Perhaps there is not 
 a more difficult question to answer in the law of real prop- 
 erty. The English common-law rule was that all streams, in 
 which the tide ebbed and flowed, were navigable streams, and 
 all others were non-navigable. 74 In England that is not, as a 
 matter of fact, the arbitrary rule, which it would be if applied 
 without qualification to the streams of this country. With 
 the exception of the Thames, above tide-water, there are no 
 
 eEnsminger V. Davis, 47 111. 384; Ryan v. Brown, 18 Mich. 196; 
 Yates v. Milwaukee, 10 Wall. 497; Weber v. Harbor Commrs., 18 Wall. 
 64. For a discussion of what is a navigable stream, and for the distinc- 
 tion between public, navigable and non-navigable stream, see post, Sec. 
 599. 
 
 70 Storer v. Freeman, 6 Mass. 435 ; Commonwealth v. Roxbury, 9 
 Gray 492; Niles v. Patch, 13 Gray 254; Goodtitle V. Kibbe, 9 How. 
 477; Hodge V. Boothby, 48 Me. 71; Cortelyou v. Van Brundt, 2 Johns. 
 362; Ledyard V. Ten Eyck, 36 Barb. 125; Mather v. Chapman, 40 Conn. 
 382; Dana v. Jackson St. Wharf, 31 Cal. 120. 
 
 71 Boston V. Richardson, 105 Mass. 353; Paine v. Woods, 108 Mass. 
 168; Valentine V. Piper, 22 Pick. 94. See, also, Smith v. Bartlett, 180 
 N. Y. 360, 73 N. E. Rep. 63. 
 
 72 Litchfield v. Ferguson, 141 Mass. 97. 
 
 73 Stover V. Jack, 60 Pa. St. 339; Wood V. Appal, 63 Pa. St. 221; 
 Commonwealth v. Alger, 7 Cush. 63 ; Commonwealth v. Roxbury, 9 
 Gray 451; Martin v. O'Brien, 32 Miss. 21; City of Galveston v. Menard, 
 23 Texas 349; Nixon v. Walter, 41 N. J. Eq. 103. 
 
 743 Washburn on Real Prop. 413; People" r. Tibbetts, 19 N. Y. 523; 
 Commonwealth V. Chapin, 6 Pick. 199. 
 872
 
 CH. XXin.]j COMPONENT PARTS OF A DEED. 539 
 
 important streams in England which are practically and 
 actually navigable, except those in which the tide ebbs and 
 flows; and there are no tide-water streams of any importance 
 which are not actually navigable. But in the United States 
 the situation is altogether different. Here we have fresh- 
 water streams, which are navigable, and salt-water streams of 
 great value which are not navigable. The application of the 
 common-law rule to this country would, therefore, result in 
 nothing but absurd conclusions. The courts of this country 
 have been discussing the problem for many years and have 
 come to different conclusions on the various branches or subdi- 
 visions of the question. On only one point is there an abso- 
 lute agreement, viz. : that the common-law rule does not gov- 
 ern such questions in the United States, so far as the right of 
 the public to navigate the streams is concerned. That is, the 
 courts hold uniformly that where the streams are sufficiently 
 deep and wide to float boats, used in the interests of commerce 
 and agriculture, the public has a right to use them as high- 
 ways. 75 But in whom is the title of the soil of the river 's bed, 
 or in what rivers does the State own the title to the bed, is 
 differently decided in different courts. The courts are unani- 
 mous in holding that ordinarily, where the tide ebbs and flows, 
 the title to the bed of the stream is in the State. 76 But the 
 
 75 The Daniel Ball, 10 Wall. 557 ; The Montello, 20 Wall. 439 ; Brown 
 V. Chadbourne, 31 Me. 9; Ingraham v. Wilkinson, 4 Pick. 268; Com- 
 monwealth v. Alger, 7 Gush. 53; The Canal Commrs. v. People, 5 
 Wend. 423; People v. Platt, 17 Johns. 195; Palmer v. Mulligan, 3 
 Caines 315; Blanchard V. Porter, 11 Ohio 138; Home V. Richards, Call 
 441; Shrunk V. Schuylkill Co., 14 Serg. & R. 71; Commrs., etc., v. 
 Withers, 29 Miss. 29; Charleston S. Ry. Co. v. Johnson, 74 Ga. 306. 
 But a stream is non-navigable by the public in which logs can be 
 floated only at high water or during a freshet. Lewis v. Coffee Co., 77 
 Ala. 190, 54 Am. Rep. 55. 
 
 76 Commonwealth v. Chapin, 5 Pick. 199 ; Keyport Steamboat Co. v. 
 Farmers' Transp. Co., 18 N. J. Eq. 13; Cobb v. Davenport, 32 N. J. L. 
 369; Flanagan V. Philadelphia, 42 Pa. St. 219; State V. Pacific Guano 
 Co., 22 S. C. 50; State v. Pinckney, 22 S. C. 484. See, Whittaker v, 
 McBride, 197 U. S. 510; Smith v. Bartlett, 180 N. Y. 360, 73 N. E. Rep. 
 63. 
 
 873
 
 599 COMPONENT PARTS OF A DEED. [PART III. 
 
 State does not own the soil or bed of every creek in which the 
 tide ebbs and flows. In order that the title to the soil of such 
 creeks may be claimed by the State, the creeks must be practi- 
 cally navigable. 77 But in respect to the title to the beds of 
 fresh water navigable streams the courts are divided. A 
 number of the courts have held that the fresh water streams 
 are governed by the common-law rule, in respect to the title 
 to the soil under navigable streams, and that the title to the 
 beds of fresh water streams is in the State. 78 But the Su- 
 preme Court of Mississippi, in a very able and learned 
 opinion, drew a distinction between public and navigable 
 rivers. It was there asserted that the principle, that the title 
 to the soil of navigable rivers, i. e., rivers in which the tide 
 ebbs and flows, was in the State, was derived from interna- 
 tional law. Tidal waters are the highways of nations, and 
 very properly the title of the beds of such streams was vested 
 in the State. But where the navigable river is a fresh water 
 stream, although a sound policy would require a grant to the 
 public of a right of way over it, there is no reason why a dis- 
 tinction should be made between them and non-navigable 
 streams, in respect to the location of the title to the soil. It 
 was, therefore, held that the public have a right of way over, 
 fresh water streams which can be navigated, but that the title 
 to the bed is in the riparian owners, and the boundary line is 
 the filum aqucB of the stream. 79 It is so essential that there 
 
 "Rowe V. Granite Bridge Corp., 21 Pick. 344; Glover V. Powell, 10 
 N. J. Eq. 211. See, State V. Gilmanton, 14 N. H. 467; Wilson v. Forbes, 
 2 Dev. L. 30; Am. River, etc., Co., v. Amsden, 6 Cal. 443; Wilson v. 
 Welch, 12 Oreg. 353. 
 
 78 Barney v. Keokuk, 94 U. S. 324; Carson v. Blazer, 2 Binn. 475; 
 Shrunk V. Schuylkill Co., 14 Serg. & R. 71; Wainwright v. McCullough, 
 63 Pa. St. 66; Martin ?;. Evansville, 23 Ind. 85; People V. Canal Com- 
 mrs., 33 N. Y. 461; Martin v. Nance, 3 Head 650; Wilson v. Forbes, 2 
 Dev. L. 30; Goodwin v. Thompson, 15 Lea 209, 54 Am. Rep. 410. 
 
 7 Steamboat Magnolia v. Marshall, 39 Miss. 109. The rule that the 
 
 title to the beds of those rivers is in the riparian owners is supported 
 
 by the following authorities; Canal Appraisers v. People, 17 Wend. 
 
 595; Ingraham v. Wilkins, 4 Pick. 268; Commonwealth v. Alger, 7 
 
 874
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 600 
 
 should be uniformity in the adjudications on this subject that 
 the author is induced to offer the following suggestions, which 
 will probably point out a common meeting-ground for variant 
 courts, and which seems, also, to be consistent with reason and 
 the necessities of life. Only those streams will be navigable 
 streams which can be actually navigated, whether the tide 
 ebbs or flows in them or not. The Supreme Court of the 
 United States has held that those rivers which, from their 
 location, constitute the boundaries of States, and which are 
 used, or may be adopted for use, in interstate and foreign 
 commerce, are navigable streams of the United States. 80 Let 
 that be a controlling principle, and declare the title to the 
 bed of such streams to be in the riparian States, in conformity 
 with the decisions of the United States Supreme Court. 
 Those streams might very properly be classed among the high- 
 ways of nations, for the States in this connection are to be 
 considered as separate and independent bodies politic. But 
 the i?ira-territorial streams cannot be called international 
 highways, and, therefore, the title to the soil of such streams 
 should be vested in the riparian owners, subject to the pub- 
 lic easement of navigation. 
 
 600. Ponds and lakes. If the pond or lake is a natural 
 object, the boundary line is along the edge at low water 
 mark. 81 If the pond is artificial, the boundary is through its 
 center. 82 And if a natural pond or lake is raised by artificial 
 
 Gush. 53; People v. Platt, 17 Johns. 195; Palmer v. Mulligan, 3 Caines 
 315; Morgan V. Reading, 3 Smed. & M. 366; Rhodes v. Otis, 33 Ala. 
 578; Berry v. Snyder, 3 Bush 266; Walker v. Public Works, 16 Ohio 
 540; Ensminger v. People, 47 111. 384; Norcross v. Griffiths, 65 Wis. 
 599. See, Rowe v. Lumber Co. (N. C.), 50 S. E. Rep. 848. 
 
 so The Daniel Ball, 10 Wall. 557; The Montello, 11 Wall. 411. 
 
 si Waterman V. Johnson, 13 Pick. 261 ; West Roxbury v. Stoddard, 7 
 Allen 167; Manton v. Blake, 62 Me. 38; Canal Commrs. v. People, 5 
 Wend. 446; Wheeler v. Spinola, 54 N. Y. 377; Austin v. Rutland R. R., 
 45 Vt. 215; Primm V. Walker, 38 Mo. 99r 
 
 sz Bradley . Rice, 13 Me. 198; Waterman v. Johnson, 13 Pick. 261; 
 Phinney v. Watts, 9 Gray 269; Wheeler v. Spinola, 54 N. Y. 377. 
 
 875
 
 601 COMPONENT PARTS OP A DEED. [PART III. 
 
 means by a dam or trench, the boundary line will continue to 
 be at low water mark of the pond in its natural state, and the 
 land which was subsequently left bare by the removal of the 
 obstructions, would be the property of the adjoining riparian 
 owner. 83 The conversion of a fresh water pond into a salt 
 one by an artificial trench or channel from the sea will not 
 change the boundary. But the boundary changes with the 
 natural and ordinary changes of the low water mark. 84 
 
 601. Highways. Where land is bounded by a highway, 
 the same rules of construction apply, as in the case of non- 
 navigable streams. If the land is described as "bounding 
 on," "running along," the highway, and the lake, the bound- 
 ary line is the thread or center of the way, although the 
 dimensions of the last would exclude the highway. And when 
 there is any doubt as to the intention of the parties, the pre- 
 sumption is always strong in favor of the center of the way 
 being the boundary. 85 But if the land is described as bound- 
 ing by the side of the street, or the intention to exclude the 
 
 saHathorn V. Stinson, 12 Me. 183; Bradley V. Rice, 13 Me. 200; 
 Waterman v. Johnson, 13 Pick. 261. But later decisions in these States 
 have qualified the position assumed in the cases just cited to this ex- 
 tent: that unless there is something in the deed to support the pre- 
 sumption that the grantor had in mind the natural state of the pond, 
 when he was describing the land, the boundary line will be the low 
 water mark of *he pond at the time of the conveyance. Wood V. Kelley, 
 30 Me. 47; Paine v. Woods, 108 Mass. 170. 
 
 843 Washburn on Real Prop. 417; Wheeler V. Spinola, 54 N. Y. 377- 
 85 Berridge v. Ward, 10 C. B. (N. s.) 400; Johnson V. Anderson, 18 
 Me. 76; Cottle v. Young, 59 Me. 105; O'Linda V. Lathrop, 21 Pick. 298; 
 Parker v. Framingham, 8 Mete. 267; Fisher v. Smith, 9 Gray 441; Har- 
 ris V. Elliott, 10 Pet. 53; Banks V. Ogden, 2 Wall. 57; White V. Godfrey, 
 97 Mass. 47; Wallace V. Fee, 50 N. Y. 694; Jackson v. Hathaway. 15 
 Johns. 454; Sherman v. McKeon, 38 N. Y. 271; Child v. Starr, 4 Hill 
 369; Winter V. Peterson, 24 N. J. L. 527; Cox v. Freedley, 33 Pa. St. 
 124; Witter v. Harvey, 1 McCord 67; Trustees v. Louder, 8 Bush 680; 
 Weisbrod V. C. & N. W. R. R., 18 Wis. 43 ; Dubuque V. Maloney, 8 Iowa 
 458. " A conveyance of a lot bounded by a road vests the grantee with 
 the fee to the center of the road." Judgment (1904) 86 N. Y. S. 759, 
 42 Misc. Rep. 358, reversed. Mitchell V. Einstein, 94 N. Y. S. 210. 
 876
 
 CH. XXIII.]' COMPONENT PARTS OF A DEED. 601 
 
 street is clearly manifested in some other manner, then the 
 boundary line will be the nearest line of the street or high- 
 way. 86 The boundary will not extend to the center of the 
 highway, if the grantor only owns to the line of the way. 87 
 And likewise, if a proprietor lays out several lots, all front- 
 ing on a proposed park, the grantees of the several lots will 
 only own to the exterior line of the park, and not to the 
 center. 88 If the land is described as bounding on a public 
 street or highway or park, the right to have it kept open 
 passes to the grantee as an appurtenant easement. 89 But if 
 it is a private way, a right of way will be acquired by the 
 grantee only upon the adjoining lands of the grantor. 00 If 
 the grantor does not own the land, no covenant will be implied 
 from the reference to a street for the purpose of description. 91 
 Where a highway or street is referred to as the boundary line, 
 the actual line, as it is laid down, is to be taken as the line 
 of the street. 92 And although encroachments upon the high- 
 way by the adjoining owners are not legalized by the lapse 
 of time, yet if a fence has been standing for twenty years 
 
 se Salisbury v. G. N. Railway Co., 5 C. B. (N. s.) 174; Sibley V. 
 Holden, 10 Pick. 249; Smith v. Slocomb, 9 Gray 36; Brainard V. Bos- 
 ton, etc., R. R., 12 Gray 410; Morrow V. Willard, 30 Vt. 118; Hoboken 
 Land Co. V. Kerrigan, 30 N. J. L. 16; Hamlin V. Pairpoint Mfg. Co., 
 141 Mass. 51. 
 
 87 Brainard v. Boston, etc., R. R., 12 Gray 410; Church v. Meeker, 34 
 Conn. 426; Dunham V. Williams, 37 N. Y. 251; Vail v. Long Island R. 
 Co. (N. Y.), 12 N. E. Rep. 607. ' , 
 
 ss Perrin v. N. Y. Cent. R. R., 40 Barb. 65 ; Hanson V. Campbell, 20 
 Md. 223. See, Mitchell v. Einstein, 94 N. Y. S. 210. 
 
 8 Cox V. James, 59 Barb. 144; 3 Washburn on Real Prop. 422, 423; 
 Lennig V. Ocean City Assn., 41 N. J. Eq. 606; Re Pearl St., Ill Pa. St. 
 565; Presbyterian Church v. Kellar, 39 Mo. App. 441. 
 
 o Smith v. Howdon, 14 C. B. (N. s.) 398; Fisher v. Smith, 9 Gray 
 444; Winslow v. King, 14 Gray 323; White v. Godfrey, 97 Mass. 472; 
 Stark v. Coffin, 105 Mass. 330; Lewis v. Beattie, 105 Mass. 410; Falls 
 v. Reis, 74 Pa. St. 439. 
 
 i Roberts v. Karr, 1 Taunt. 495; Howe v. Alger, 4 Allen 200; Brain- 
 ard v. Boston, etc., R. R., 12 Gray 410; Hanson v, Campbell, 20 Md. 
 232. 
 
 2 Bradstreet v. Dunham, 65 Iowa 248. 
 
 877
 
 603 COMPONENT PARTS OF A DEED. [PART III. 
 
 upon the highway as it was originally laid out, the fence will 
 be considered the true line, if the real boundary cannot be 
 ascertained by record. 93 And if the road or street is subse- 
 quently abandoned, the adjoining owners will then hold the 
 land over which the highway extended, free from the public 
 easement. 94 
 
 602. Walls, fences, trees, etc. When walls, fences, trees, 
 and the like, are referred to as monuments, if they are of 
 considerable thickness or width, the boundary line is always 
 in the center of the monument, as has been seen to be the 
 case with streams and highways. 95 
 
 603. Courses and distances. The next element of de- 
 scription in the order of preference is the admeasurement of 
 distances and the given courses of the boundary lines. "Where 
 courses and distances are given in a deed, conveying a city lot 
 of comparatively small dimensions, they are greatly relied 
 upon in determining the boundaries. And where there are 
 no monuments, parol evidence will not be permitted to vary 
 them. Nothing but monuments can control courses and lis- 
 tances. 96 The courses and distances will be the absolutely 
 
 93Hallenbeck V. Rowley, 8 Allen 475; Fisher v. Smith, 9 Gray 441; 
 Lozier v. N. Y. Cent. R. R., 42 Barb. 468 ; Bissell v. N. Y. Cent. R. R., 
 23 N. Y. 61; Cross v. Morristown, 18 N. J. Eq. 305. 
 
 94 Banks V. Ogden 4 2 Wall. 57; People v. Laws, 22 How. Pr. 115; 
 Wallace v. Fee, 50 N. Y. 694; Weisbrod & C. N. W. R. R., 18 Wis. 43; 
 Presbyterian Church v. Kellar, 39 Mo. App. 441; Matt v. Eno, 90 N. 
 Y. S. 608, 97 App. Div. 580. See, Mitchell v. Einstein, 94 N. Y. S. 210. 
 
 5 Bradford v. Cressey, 45 Me. 9; Boston V. Richardson, 13 Allen 154; 
 Child v. Starr, 4 Hill 369. " A spreading hedge, not trimmed every 
 year, is a poor boundary line." Bright v. New Orleans Ry. Co. (La. 
 1905), 38 So. Rep. 494. 
 
 6 Drew v. Swift, 46 N. Y. 209; Chadbourne V. Mason, 48 Me. 391; 
 Bagley V. Morrill, 46 Vt. 94; Friend V. Friend, 64 Md. 321; Breneiser v. 
 Davis (Pa.), 19 Atl. Rep. 433. "Where calls for boundary lines are 
 irreconcilably inconsistent, they are to be given effect in the following 
 order: (1) Natural objects; (2) artificial marks; (3) courses and 
 distances." Kleven v. Gunderson (Minn. 1905), 104 N. W. Rep. 4. 
 878
 
 CH. XXIII. ]j COMPONENT PARTS OF A DEED. 604 
 
 determining element in the absence of monuments, although 
 the admeasurements are given as so many feet, "more or 
 lessr" 97 But a survey is so liable to be erroneous through 
 some defect in the instrument, or the carelessness of the sur- 
 veyor, that whenever monuments are given, the monuments 
 control the courses and distances, although the monuments 
 would take in more land than what is called for by the sur- 
 vey. 98 And where the land is described by another's land, 
 the latter tract of land is a monument of description, and the 
 true line of his land will control the courses and distances 
 given in the deed." But the thing or object referred to must, 
 in order to serve as a monument of description, be referred 
 to in the deed as such. The reservation of the use of a well 
 which is described as being "on the west line of the land," 
 does not make the well a monument for locating the bound- 
 ary. 1 When the course is described as "northerly," "south- 
 erly," etc., the line is always understood as "due" north, or 
 south. But reference is always made to the magnetic merid- 
 ian in determining the direction of the boundary lines. 2 
 
 604. Quantity. The quantity of land conveyed is some- 
 times given; but where there is no covenant as to quantity 
 
 7Flagg V. Thurston, 13 Pick. 145; Blaney v. Rice, 20 Pick. 62; 
 Block v. Pfaff, 101 Mass. 538; Cherry V. Slade, 3 Murph. 82; Welch V. 
 Phillips, 1 McCord 215. 
 
 8 White V. Williams, 48 N. Y. 344; Drew v. Swift, 46 N. Y. 207; 
 Cronin V. Richardson, 8 Allen 423; Brown V. Huger, 21 How. 305; 
 Haynes V. Jackson, 59 Me. 386; Lodge V. Barnett, 46 Pa. St. 484; 
 Colton v. Seavey, 22 Cal. 496; Miller V. Cherry, 3 Jones 29; Frost V. 
 Spaulding, 19 Pick. 445; Evansville v. Page, 23 Ind. 527. But see 
 contra, Danzien v. Boyd, 53 N. Y. Super. Ct. 398. See, also, Mays v. 
 Hinchman (W. Va. 1905), 50 S. E. Rep. 823. 
 
 Peaslee v. Gee, 19 N. Y. 273; Bailey v. White, 41 N. H. 343; Park 
 v. Pratt, 38 Vt. 552. See, Mays v. Hinchman (W. Va.), 50 S. E. Rep. 
 823. 
 
 1 Maguire v. Sturtevant, 140 Mass. 258. 
 
 2 Brandt v. Ogden, 1 Johns. Gas. 158 ; Gordon v. Jackson, 5 Johns. 
 473; Jackson v. Reeves, 3 Caines 295; Wells v. Company, 47 N. H. 235; 
 Bos worth v. Danzien, 25 Cal. 296. 
 
 879
 
 605 COMPONENT PARTS OP A DEED. [PART III. 
 
 * 
 
 this element of description is seldom resorted to in determin- 
 ing the boundaries, and is under no circumstances permitted 
 to control the courses and distances or the monuments, 3 unless 
 these other elements of description lose in any case their 
 superior value through ambiguities and uncertainties, when 
 the quantity is referred to in order to give certainty to the 
 description. 4 One-half a certain tract of land, means one- 
 half of a quantity of land and cannot be considered as a 
 description by courses and distances. 6 
 
 605. Reference to other deeds, maps, etc., for description. 
 If, instead of containing the description of the land conveyed, 
 the deed refers to other deeds, the description of the latter 
 deed will by such reference become a part of the former, and 
 has the same effect as if it had been inserted in the sub- 
 sequent deed. 6 It is not necessary that the deed referred to 
 be recorded^ although if the deed referred to is described 
 as being recorded, no unrecorded deed will answer to 
 supply the description of the premises. 7 But the reference 
 to another deed will not be permitted to control the descrip- 
 
 3 Mann V. Pearson, 2 Johns. 37 ; Jackson v. Defendorff , 1 Caines 493 ; 
 Snow v. Chapman, 1 Root 528 ; Commrs. v. Thompson, 4 McCord 434 ; 
 Miller v. Bentley, 5 Sneed 671; Wright V. Wright, 34 Ala. 194; Button 
 v. Rust, 22 Texas, 133; Ufford V. Wilkins, 33 Iowa 113; Ward v. 
 Crotty, 4 Mete. (Ky.) 103; Llewellyn v. Jersey, 11 Mees. & W. 183; 
 Hodges V. Rowing, 58 Conn. 12, 18 Atl. Rep. 979; Clute V. N. Y., etc., 
 R. R. Co., 120 N. Y. 267, 24 N. E. Rep. 317. 
 
 * Moran V. Lezotte, 54 Mich. 83 ; Hall V. Shotwell, 66 Cal. 379 ; Jones 
 v. Pashby, 62 Mich. 614, 29 N. W. Rep. 374; Jones v. Motley (Ky.), 13 
 S. W. Rep. 432; Davis v. Hess (Mo.), 15 S. W. Rep. 324. See, Whit- 
 taker v. Whittaker (Mo. 1903), 74 S. W. Rep. 1029. 
 
 s Hartford Iron Mine .Co. v. Cambria Min. Co. (Mich.), 45 N. W. 
 Rep. 351. See, Costello v. Graham (Ariz.), 80 Pac. Rep. 336. 
 
 Knight v. Dyer, 57 Me. 176; Allen v. Bates, 6 Pick. 460; Foss v. 
 Crisp, 20 Pick. 121; Allen V. Taft, 6 Gray 552; Perry v. Binney, 103 
 Mass. 158 ; Lippitt v. Kelly, 46 Vt. 523 ; Rodriguez v. Hayes, 76 Texas 
 225; O'Herrin V. Brooks (Miss.), 6 So. Rep. 844; Miller v. Topeka 
 Land Co. (Kan.), 24 Pac. Rep. 420; McAfee v. Arline, 83 Ga. 645, 10 
 S. E. Rep. 441. 
 
 i Simmons v. Johnson, 14 Wis. 526; Caldwell v. Center, 30 Cal. 543. 
 880
 
 CH. XXin.]j COMPONENT PAKTS OF A DEED. 606 
 
 tion actually contained in the subsequent deed, so as to ex- 
 clude a lot or parcel of land described as a part of the subject 
 of conveyance, and not mentioned in the deed referred to. 8 
 In the same manner, where a reference in the deed is made to 
 plans, maps, and the like, for the monuments, courses and 
 distances, the maps and plans become a part of the deed of 
 conveyance, and supply the description omitted in the deed. 9 
 And one map may be supplemented by a reference to some 
 prior map, to which the latter map constitutes an addition. 
 In determining the location of the land, both maps may be 
 resorted to. 10 But if the boundaries can be ascertained with- 
 out reference to the maps or plans, they need not be produced 
 in evidence. The boundary may be established by any other 
 competent evidence. 11 
 
 606. Appurtenants. "Whatsoever belongs to the thing 
 granted as a parcel thereof will pass with it, though it is not 
 specifically referred to. Thus, houses, window-blinds, doors, 
 mines, crops, and whatever else constitutes a part of the 
 realty, will pass with the grant of the land, unless expressly 
 reserved. 12 It is also the general rule, with very little qualifi- 
 
 s Whitney v. Dewey, 15 Pick. 434; Needham v. Judson, 101 Mass. 161. 
 
 Ke'nnebec Purchase V. Tiffany, 1 Me. 219; Shirras v. Caig, 7 Cranch 
 48; Farnsworth v. Taylor, 9 Gray 162; Stetson v. Daw, 16 Gray 374; 
 Chamberlain v. Bradley, 101 Mass. 191; Fox V. Union Sugar Co., 109 
 Mass. 292; McCausland v. Fleming, 63 Pa. St. 36; Spiller v. Scribner, 
 36 Vt. 247; Heffernan v. Otsego Water Power Co. (Mich.), 43 N. W. 
 Rep. 1096; s. c. 44 N. W. Rep. 1151; O'Herrin v. Brooks (Miss.), 6 So. 
 Rep. 844; Cullen v. Sprigg (Cal.), 23 Pac. Rep. 222; Marvin v. Elliot, 
 99 Mo. 616, 12 S. W. Rep. 899; Chapman f. Polack, 70 Cal. 487; Redd 
 V. Murry (Cal.), 24 Pac. Rep. 841; Bohier v. Lange, 44 Minn. 281. 
 See, Neumeister v. Goddard (Wis. 1905), 103 N. W. Rep. 241; Snooks 
 v. Merryfield, 44 S. E. Rep. 277. 
 
 10 Slate v. Schwin, 65 Wis. 207. 
 
 11 Deery v. Cray, 10 Wall. 263. 
 
 "Farrar v. Stackpole, 6 Me. 154; Bracket v. Goddard, 54 Me. 313; 
 Goodrich v. Jones, 2 Hill 142; Powell v. Rich, 41 111. 466; Noble v. 
 Bosworth, 19 Pick. 314; Daniels v. Pond, 31 Pick. 367; Foote v. Colvin, 
 3 Johns. 216; Austin v. Sawyer, 9 Cow. 40; Bond v. Coke, 71 N. C. 97; 
 
 56 881
 
 606 COMPONENT PARTS OP A DEED. [PART III. 
 
 cation, that whatever is appendant or appurtenant to the thing 
 granted will pass with it to the grantee as an appurtenant. 
 All easements attached to the land granted as the dominant 
 estate are appurtenant. 13 And whether a certain right is ap- 
 purtenant depends upon the condition of the property at the 
 time of the conveyance, and how far the right is necessary to 
 the complete enjoyment of the property. If, therefore, cer- 
 tain easements or servitudes are enjoyed by the grantor in con- 
 nection with the use of the land, those easements will pass to 
 the grantee. And even where the servient estate is also his 
 property, the equitable easement arising from the subservience 
 of one piece of land to the other will pass to the grantee of the 
 latter, if it is essential to his full enjoyment of the land 
 granted. 14 Although land cannot be said to pass as appur- 
 tenant to land, if the land, expressly granted, does not admit 
 of a reasonable enjoyment without some adjacent land, which 
 has been used constantly with the land granted, it will pass as 
 parcel. 15 But where an easement over the adjacent land 
 
 Ring v. Billings, 51 111. 475; Lewis v. Lyman, 22 Pick. 436; Fay v. 
 Muzzey, 13 Gray 53; Brookhaver v. Smith, 118 N. Y. 564; 23 N. E. 
 Rep. 1002; Patterson V. Harlan, 124 Pa. St. 67. 
 
 "Plant v. James, 5 B. & Ad. 791; Harris v. Elliott, 10 Pet. 25; 
 Philbrick v. Ewing, 97 Mass. 133 ; Kent v. Wait, 10 Pick. 138 ; ,Pope V. 
 O'Hara, 48 N. Y. 455; Jackson V. Hathaway, 15 Johns. 447; Pickering 
 . Stapler, 5 Serg. & R. 107; Whalley v. Tompson, 1 Bos. & P. 371: 
 Grubb v. Grubb, 101 Pa. St. 11. 
 
 i* Brigham v. Smith, 4 Gray 297 ; Richardson V. Bigelow, 15 Gray 
 156; James v. Plant, 5 A. & E. 749; Prestcott v. Whit, 21 Pick. 343; 
 Hapgood v. Brown, 102 Mass. 453; Woodman v. Smith, 53 Me. 81; 
 Thompson v. Banks, 43 N. H. 540 ; Voorhies V. Burshard, 55 N. Y. 102 ; 
 Bliss v. Kennedy, 43 111. 71; White v. Barlow, 72 Ga. 887. See ante, 
 Sec. 432. 
 
 "Woodman v. Smith, 53 Me. 81; Allen v. Scott, 21 Pick. 25; Esty 
 T. Currier, 98 Mass. 501; Webster V. Potter, 105 Mass. 414; Whitney f. 
 Olney, 3 Mason 282 ; Davis v. Handy, 37 N. H. 65 ; Thompson v. Banks, 
 43 N. H. 540; Voorhies v. Burshard, 55 N. Y. 102; Avon Co. v. An- 
 drews, 30 Conn. 476; Bacon v. Bowdoin, 22 Pick. 401; Jackson v. Hatha- 
 way, 15 Johns. 447; Riddle v. Littlefield, 53 N. H. 508; Kimbell v. 
 Rodgers (Ala.), 7 So. Rep. 241. See contra, Hodgens v. Powell (Ark.), 
 11 S. W. Rep. 574. 
 882
 
 CH. XXIII.] COMPONENT PARTS OP A DEED. 607 
 
 would provide for the grantee a reasonably satisfactory en- 
 joyment of the land granted, the freehold in the soil will not 
 pass. The grantee would only acquire an easement therein. 16 
 But a claim for damages for the closing of a road does not 
 pass as appurtenant to the grantee, simply because the claim 
 was not awarded before the transfer of the property. 17 
 
 607. Necessity of use controls grant of easements, as ap- 
 purtenant. Somewhat at variance with the doctrine of the 
 preceding section, as to the conveyance of easements, as 
 "appurtenant" to a conveyance of the realty, without an ex- 
 press reservation thereof, is the well considered case of Ogden 
 v. Jennings, 18 where the Court of Appeals, of New York. 
 observed : 
 
 "Easements exist as appurtenant to a grant of lands, and 
 as arising by implication, only by reason of a necessity to the 
 full enjoyment of the property granted. Nothing passes by 
 implication or as incident appurtenant to the lands granted, 
 except such rights, privileges and easements as are directly 
 necessary to the proper enjoyment of the granted estate. A 
 mere convenience is not sufficient to create or convey a right 
 or easement, or impose burdens on lands other than those 
 granted, as incident to the grant. In all cases, the question of 
 necessity controls." >1 
 
 This language is adopted with approval, by the Supreme 
 Court of Missouri, in a well considered case, 19 where water 
 pipes and mains, laid under a license from a city, into and 
 under lots adjoining the water main, in a street were held 
 
 i Stetson v. Daw, 16 Gray 373; Munn v. Worrall, 53 N. Y. 46; 
 Jamaica Pond v. Chandler, 9 Allen 164 ; Graves v. Amoskeag Co., 44 N. 
 H. 464; Owen v. Field, 102 Mass. 104; Curtis v. Norton, 58 Mich. 411; 
 Cluett r. Sheppard (111.), 23 N. E. Rep. 589. 
 
 "King v. St. Patrick's Cathedral, 50 N. Y. Supr. 406. 
 
 1862 N. Y. 526; cited and approved in Barrett v. Bell, 82 Mo. 114. 
 
 iMulrooney v. Obear, 171 Mo. 613, 71 S. W. Rep. 1019. See, also, 
 Dodge City Water & Light Co. v. Alfafa Irr. & Land Co. (Kan. 1902), 
 67 Pac. Rep. 462. 
 
 883
 
 $ G08 COMPONENT PARTS OF A DEED. [PART III. 
 
 not to pass, as appurtenant to a conveyance of the realty, by 
 the vendor, in a sale of the property, but were the subject of a 
 separate transfer, under bill of sale by the owner to a third 
 person. 
 
 608. Exception and reservation. An exception to a grant 
 withdraws from the operation of the conveyance some part 
 or parcel of a thing which is granted, and which but for the 
 exception would have passed to the grantee under the general 
 description. The part excepted is already in existence, and 
 is said to remain in the grantor. The grant has no effect 
 upon it. A reservation is the creation, in behalf of the 
 grantor, of some new right issuing out of the thing granted, 
 usually an incorporeal hereditament, something which did 
 not exist, as an independent right, before the grant. 20 Some- 
 times the terms exception and reservation are used synony- 
 mously, but the distinction above given is proper and essential. 
 A reservation is in the nature of a grant to the grantor, and 
 therefore requires the same words of limitation as in the 
 direct grant to the grantee. But an exception requires no 
 words of limitation. 21 Both reservations and exceptions 
 
 zoGreenleaf v. Birth, 6 Pet. 302; Pettee v. Hawes, 13 Pick. 323; 
 Dyer v. Santford, 9 Mete. 395; Stockbridge Iron Co. V. Hudson Iron 
 Co., 107 Mass. 321; Dennis V. Wilson, 107 Mass. 591; Emerson f. 
 Mooney, 50 N. H. 316; Munn V. Worrall, 53 N. Y. 46; Whitaker V. 
 Brown, 46 Pa. St. 197; Bray v. Hussey, 83 Me. 329; Behymer V. Odell, 
 31 111. App. 350; Wood v. Boyd (Mass.), 13 N. E. Rep. 476; Weekland 
 V. Cunningham (Pa.), 7 Atl. Rep. 148; Kincaid v. McGowan (Ky.), 
 4 S. W. Rep. 802 ; King v. Wells, 94 N. C. 344 ; Coal Creek Mining Co. 
 v. Heck, 15 Lea 497; Jones V. Delassus, 84 Mo. 541; Truett v. Adams, 
 66 Cal. 218; Bradley v. Tittabawassee Boom Co. (Mich.), 46 N. W. 
 Rep. 24; Mayo V. Newhoff (N. J.), 19 Atl. Rep. 837; Gould V. Howe 
 (111.), 23 N. E. Rep. 602; Atkinson v. Sinnott (Miss.), 7 So. Rep. 289; 
 Grand Tower, etc., Co. v. Gill, 11 111. 541; City of New York v. Law, 
 125 N. Y. 380; Culter v. Tuft, 3 Pick. 272, 278; Doe v. Lock, 4 Nev. 
 & M. 807; Pettee v. Hawes, 13 Pick. 323, 326; Hurd V. Curtis, 7 Met. 
 110; 3 Washburn on Real Prop. (4 ed.) 440; Shep. Touch. 80; Moulton 
 V. Trafton, 64 Me. 218. For reservation of homestead in granted prem- 
 ises, see, Helm v. Kaddetz, 107 111. App. 413. 
 
 21 Seymour v. Courtenay, 5 Burr. 2814; Jamaica Pond v. Chandler, 9 
 884
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 608 
 
 are to be distinguished from conditions, which limit 
 the grantee's use of the land. Such a condition does 
 not give to the grantor any right which he may assign 
 to another. 22 A reservation can only be made to the 
 grantor, and must issue out of the land granted. It can- 
 not be reserved to a stranger or out of another estate, 
 although an attempted reservation out of another's estate may 
 operate as an independent grant to the grantor in a deed of 
 indenture executed by both parties. 23 The reservation 
 properly appears in the reddendum clause of the deed, 
 while the exception is properly incorporated in the prem- 
 ises, and constitutes a part of the description. But this 
 is a mere matter of form, and is not essential or important in 
 determining whether a clause creates an exception or a reser- 
 vation. 24 If an exception is repugnant to the original grant, 
 it is void. Thus, if there be a specific grant of twenty acres 
 of land, the exception of one acre will be repugnant and 
 
 Allen 170; Putnam v. Tuttle, 10 Gray 48; Curtis v. Gardner, 13 Mete. 
 461 ; White v. Foster, 102 Mass. 378; Stockbridge Iron Co. v. Hudson 
 Iron Co., 107 Mass. 321; Keeler v. Wood, 30 Vt. 242; Emerson v. 
 Mooney, 50 N. H. 316; Hornbeck v. Westbrook, 9 Johns. 73; Wheeler 
 r. Brown, 47 Pa. St. 197; Smith v. Ladd, 41 Me. 314; Randall v. Ran- 
 dall, 59 Me. 339 ; Bean v. French, 140 Mass. 229. 
 
 22 Westmoreland, etc., Nat. Gas Co. v. De Witt, 130 Pa. St. 235. See 
 Bray v. Hussey, 83 Me. 329; Stillwell v. St. L., etc., Ry. Co., 39 Mo. 
 App. 221. 
 
 23Dand v. Kingscote, 6 Mees. & W. 174; Pettee v. Hawes, 13 Pick. 
 322; Dyer V. Sanford, 9 Mete. 395; Bridger v. Pierson, 45 N. Y. 601; 
 Hill V. Lord, 48 Me. 95; Hall v. Hall (Miss.), 5 So. Rep. 523; Wetmore 
 r. Fiske, 15 R. I. 354, 5 Atl. Rep. 375 ; Herbert v. Pue (Md.), 20 Atl. 
 Rep. 182; Fisher v. Laack (Wis.), 45 N. W. Rep. 104; Dyer v. San- 
 ford, 9 Met. 395; Hornbeck v. Westbrook, 9 Johns. 74; Petition of 
 Young, 11 R. I. 636; Bridger v. Pierson, 1 Lans. 481; Illinois R. R. 
 Co. t?. Indiana R. R. Co., 85 111. 211; West Point Iron Co. v. Reymert, 
 45 N. Y. 703. And see Bridger v. Pierson, 45 N. Y. 601; Brossart v. 
 Corlett, 27 Iowa 288. 
 
 2* Gage v. Barnes (N. H.), 9 Atl. Rep. 545. "The words of a deed, 
 ' The grantor hereby reserves the ownership of the well on or near the 
 east line of the lot hereby conveyed,' will be treated as an exception." 
 Elsea r. Adkins (Ind. 1905), 74 N. E. Rep. 242. 
 
 885
 
 609 COMPONENT PARTS OF A DEED. [PART III. 
 
 therefore void. But if the grant is of a tract of land and the 
 quantity is mentioned only incidentally, an exception of one 
 or two acres is not repugnant, since the two elements of the 
 description can be reconciled so that both can take effect. 25 
 And where a part or parcel of the land granted is excepted 
 from the grant or right reserved to the grantor, not only 
 that specific right or estate remains in the grantor, but every 
 other right which is appurtenant thereto, and which is neces- 
 sary to the reasonable enjoyment of the same. 26 But where it 
 is shown that the grantor in excepting a part of the land only 
 intended to except an easement, such as a right of way over 
 the excepted parcel, the title to the soil of the excepted parcel 
 is held to pass to the grantee, subject only to the easement. 27 
 And if the grantor's estate in the land excepted is a reversion 
 or remainder, such reversion or remainder will be excluded 
 from the grant, to the same extent as if it had been an estate 
 in possession. 28 It is also possible to except different interests 
 in the same property from the operation of the grant, when 
 such intention is made plain. 29 
 
 609. Habendum. The habehdum is the clause which in 
 a deed follows the words "to have and to hold," and which 
 defines the quantity of interest or the estate which the grantee 
 is to have in the property granted. What are the words of 
 limitation usually employed in limiting estates, have been 
 already given in the preceding chapters on the different 
 estates, and need not be repeated here. The habendum, al- 
 
 25 Shep. Touch. 79 ; Cutler v. Tufts, 3 Pick. 272 ; Sprague V. Snow, 4 
 Pick. 54; McAfee v. Arline, 83 Ga. 645, 10 S. E. Rep. 602; Koenigheim 
 v. Miles, 67 Texas 113, 2 S. W. Rep. 81; Brown v. Rickard, 107 N. C. 
 639. 
 
 2Dand v. Kingscote, 6 Mees. & W. 174; Sanborn v. Hoyt, 24 Me. 
 118; Pettee V. Hawes, 13 Pick. 322; Allen V. Scott, 21 Pick. 25; Noble 
 V. 111. Cent. R. R. Co., Ill 111. 437; McBrown V. Dalton, 70 Cal. 89, 11 
 Pac. Rep. 583. 
 
 27 Winston V. Johnson, 42 Minn. 398, 45 N. W. Rep. 958. 
 
 asKimball v. Withington, 141 Mass. 376. 
 
 2Burwell v. Snow, 107 N. C. 82; Price v. King, 44 Kan. 639. 
 886
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 609 
 
 though properly constituting an independent clause in a deed, 
 is not absolutely necessary. The estate granted may be limit- 
 ed in the premises, and the habendum altogether omitted. 30 
 And so unimportant is the habendum, that if it is repugnant 
 to the limitations appearing in the premises it will have no 
 effect; an absolutely repugnant habendum always yields to 
 the terms of the premises. 31 But if by any fair and reason- 
 able construction the premises and habendum may be recon- 
 ciled so that both can stand, then effect will be given to both. 
 If, therefore, the limitation in the premises is in general terms, 
 as to A. and his heirs generally, and the habendum limits the 
 estate to A. and the heirs of his body, since the habendum is 
 not necessarily contradictory of the premises, it will have its 
 proper effect, and the estate granted will be an estate-tail. 38 
 But if the premises contain a specific limitation, and is fol- 
 lowed by a more general limitation in the habendum, the latter 
 limitation cannot enlarge the estate granted by the premises. 38 
 It has however been held that a fee simple has been con- 
 veyed, where the premises granted the land to A. and her 
 children and assigns forever, and the habendum read " to A. 
 
 so 3 Washburn on Real Prop. 366, 367, 436 ; Co. Lit. 6 a ; Kenworthy 
 f. Tullis, 3 Ind. 96. 
 
 si Flagg f. Eames, 40 Vt. 23; Nightingale V. Hidden, 7 R. I. 118; 
 Tyler v. Moore, 42 Pa. St. 376 ; Walters v. Breden, 70 Pa. St. 237 ; Rat- 
 liffe V. Marrs, 87 Ky. 26; Smith V. Smith (Mich.), 40 N. W. Rep. 21; 
 Nightingale v. Hidden, 7 R. I. 118; Walters v. Breden, 70 Pa. St. 237; 
 4 Cruise, 272; Riggin v. Love, 72 111. 553; Carson v. McCaslin, 60 Ind. 
 337. 
 
 32 Berry V. Billings, 44 Me. 423 ; Jamaica Pond v. Chandler, 9 Allen 
 168; Ford V. Flint, 40 Vt. 382; Moss V. Sheldon, 3 Watts & S. 162; 
 Montgomery V. Sturdivant, 41 Cal. 290; Jamaica Pond v. Chandler, 9 
 Allen 168 ; Co. Lit. 6 a ; 1 Wood on Conveyancing, 224 ; Lee v. Tucker, 
 55 Ga. 9; Riggin v. Love, 72 111. 553; 3 Prest. Abst. Tit. 43. See 
 Carson v. McCaslin, 60 Ind. 334; Jackson v. Ireland, 3 Wend. 99; Cor- 
 bin v. Healey, 20 Pick. 514. See Utter v. Sidman, 172 Mo. 229. 
 
 as Shep. Touch. 76 ; Nightingale v. Hidden, 7 R. I. 1 18 ; Walters v. 
 Breden, 70 Pa. St. 237; 3 Washburn on Real Prop. 439; Whitby v. 
 Duffy (Pa.), 19 Atl. Rep. 1065. See, Hall v. Wright (Ky.), 87 8. W. 
 Rep. 1129. 
 
 887
 
 610 COMPONENT PARTS OP A DEED. | PART III. 
 
 and her heirs and assigns forever." 84 The habendum cannot 
 serve to pass any other parcels of land than those which are 
 described in the premises, nor to change the grantees, or their 
 interests, so as to make them tenants in severalty, where by 
 the premises they were tenants in common, 35 although it is 
 probable that the habendum may serve to change the char- 
 acter of a joint estate from a joint-tenancy to a tenancy in 
 common, and to name the grantees, where their names were 
 omitted from the premises. 36 The habendum may also be 
 made to qualify and limit the operation of the premises to the 
 intended operation of the habendum." The habendum also 
 contains generally the declarations of the uses and trusts, 
 subject to which the grantee is to hold the estate conveyed. 
 But the declaration may appear in any other part of the deed 
 and be equally effective. 88 
 
 610. Reddendum. This is the clause which contains the 
 reservations and follows the habendum. The subject of reser- 
 vations, and their points of difference from exceptions, have 
 already been discussed. The reservation may be of rent, or 
 of any other easement, or other interest, or estate in land. 3 " 
 
 34 Rines v. Mansfield, 96 Mo. 399. 
 
 354 Cruise Dig. 265; Co. Lit. 26 b, Butler's note, 154; Greenwood r. 
 Tyler, Cro. Jac. 564; Hafner v. Irwin, 3 Dev. & B. 434. See Den r. 
 Helmes, 3 N. J. L. 1050; Swazey V. Brooks, 34 Vt. 451; MeCurdy V. 
 Alpha Mining Co., 3 Nev. 27. " Where the granting clause and the 
 habendum of a deed are irreconcilable, and it is not apparent from 
 the other parts of the deed which the grantee intended should control, 
 the granting clause will prevail." Hall v. Wright (Ky. 1905), 87 S. 
 W. Rep. 1129, 27 Ky. Law Rep. 1185. 
 
 se Tyler V. Moore, 42 Pa. St. 388; Irwin V. Longworth, 20 Ohio 581; 
 Spyve v. Tonham, 3 East 115; 1 Wood on Conveyancing, 206, 212; 3 
 Wash burn on Real Prop. (4 ed.) 438. Contra, Bustard v. Coulter, Cro. 
 Eliz. 902, 903; Berry V. Billings, 44 Me. 424; Sumner v. Williams, 8 
 Mast. 174. 
 
 37 Moss v. Sheldon, 3 Watts & S. 162; Tyler v. Moore, 42 Pa. St. 374. 
 But it can never extend the subject-matter beyond the limitation in the 
 premises. Manning v. Smith, 6 Conn. 232. 
 
 ss Nightingale v. Hidden, 7 R. I. 1 18 ; 3 Washburn on Real Prop. 440. 
 
 se See ante, Sec. 606.
 
 CH. XXIII.] COMPONENT PARTS OF A DEED. 611 
 
 611. Conditions. The reddendum in an orderly deed is 
 followed by the condition, if one is annexed to the estate 
 granted. What are valid conditions, and what is their legiti- 
 mate effect upon the estates, to which they are attached, have 
 been already explained. 40 It needs only to be added, that 
 mere recitals of the object of the grant do not constitute con- 
 ditions. 41 
 
 *o See ante, Sees. 200, 209. 
 
 4i Kelley v. McBlain, 42 Kan. 764, 22 Pac. Rep. 994 ; Miller v. Board 
 of Supervisors (Miss.), 7 So. Rep. 429. 
 
 889
 
 SECTION III. 
 
 COVENANTS IN DEEDS. 
 
 SECTION 612. General statement. 
 
 613. Covenant enlarging the estate. 
 
 614. Covenant of seisin and right to convey. 
 
 615. What facts constitute a breach. 
 
 616. Covenant against incumbrances. 
 
 617. What circumstances constitute a breach of covenant 
 
 against incumbrances. 
 
 618. Covenant for quiet enjoyment. 
 
 619. Covenant of warranty. 
 
 620. The character of the covenant of warranty. 
 
 621. The feudal warranty. 
 
 622. Special limited covenants of title Exceptions to opera- 
 
 tion of covenants. 
 
 623. Implied covenants. 
 
 624. Who may maintain actions on covenants of warranty. 
 
 625. Damages, what may be recovered. 
 
 626. What covenants run with the land. 
 
 627. When breach of covenant works a forfeiture of estate. 
 
 612. General statement. After the parts of a deed, al- 
 ready explained, are usually inserted the covenants, including 
 covenants of title. 42 As a general proposition, subject to the 
 qualification to be hereafter mentioned, if the deed contained 
 no express covenants of title there is no implied warranty of 
 title, and the grantee is without remedy against the grantor 
 if the title should fail. 43 Covenants of title are, therefore, 
 generally used, and a warranty deed is generally demanded. 
 In order that a covenant may be valid, the deed in which it 
 is contained must be valid. 44 There are five principal cove- 
 
 42 See post, Sec. 623. 
 
 43 3 Washburn on Real Prop. 447 ; Williams on Real Prop. 443, 447. 
 Co. Lit. 386 a ; 3 Washburn on Real Prop. 447; Scott v. Scott, 70 
 
 Pa. St. 248. 
 890
 
 CH. XXIII.] COVENANTS IN DEEDS. 614 
 
 nants, usually found in modern conveyances, viz. : covenants 
 of seisin, right to convey, against incumbrances, for quiet 
 enjoyment, and warranty. In the Western and Southern 
 States the last covenant is generally the only one employed. 
 But the others are recognized in all the States, and in the 
 Northern and Middle States, except Pennsylvania, it is cus- 
 tomary to employ most, if not all, of the covenants above 
 enumerated. 45 Covenants of seisin and the fight to convey 
 are held to be practically synonymous, and may be discussed 
 together. 48 
 
 613. Covenant enlarging the estate. Where the deed 
 shows specifically what is the quantity of estate granted, the 
 covenants cannot, by variation in the description of the estate, 
 enlarge it. But if there is a general grant without special 
 words of limitation, a general covenant of warranty to the 
 grantee and his heirs may act as an estoppel in passing the 
 inheritance to the grantee, although words of limitation are 
 required in the creation of a fee, and there are none in the 
 premises or the habendum* 7 
 
 614. Covenants of seisin and right to convey. This is a 
 general covenant that the grantor is lawfully seised, and had 
 a right to convey at the time of the conveyance. If the 
 grantor is not then possessed of the legal title, and is not in 
 possession of the premises, the covenant is broken as soon as 
 made, and the grantee, and no one else, may at once bring an 
 
 Williams on Real Prop. 447, Rawle's note ; Colby v. Osgood, 29 
 Barb. 339; Foote v. Burnett, 10 Ohio 317; Van Wagner v. Van Nostrand, 
 19 Iowa 462; Armstrong v. Darby, 26 Mo. 517. 
 
 * Slater v. Rawson, 1 Mete. 455 ; Raymond v. Raymond, 10 Gush. 
 134; Brandt v. Foster, 5 Iowa 294. Contra, Richardson v. Dorr, 5 Vt. 
 21. See, for covenants under N. Y. Statute, Cassada v. Stable, 90 N. 
 Y. S. 533. 
 
 4* Ferrett v. Taylor, 9 Cranch 53 ; Blanchard v. Brooks, 12 Pick. 67 ; 
 Mills v. Catlin, 22 Vt. 104; Adams v. Ross, 30 N. J. L. 509; Winborne 
 v. Downing, 105 N. C. 20; Ricks v. Pulliam, 94 N. C. 225. But see, 
 Carrough v. Hamell (Mo. App. 1904), 84 S. W. Rep. 96. 
 
 891
 
 614 COVENANTS IN DEEDS. [PART III. 
 
 action for the breach. 48 If the grantor has possession at the 
 time, but holds adversely to the owner of the paramount title, 
 it has generally been held that the mere existence of an out- 
 standing title does not constitute a breach of the covenant 
 But whether such adverse possession and defeasible seisin are 
 a sufficient compliance with the obligation of the covenant, 
 has met with a different construction by the different courts. 
 It has been held in some, perhaps most of the States, that the 
 covenant of lawful seisin is satisfied by the possession of 
 actual seisin though it is tortiously acquired, and that a sub- 
 sequent eviction of the tenant constitutes no breach of the 
 covenant of seisin. 40 If this be the proper construction, then 
 a covenant of seisin, or of lawful seisin, is broken, if at all, 
 as soon as it is made, and, in conformity with the general 
 common-law rule in respect to the non-assignability of broken 
 covenants, cannot pass to the assignees of the grantee. If the 
 covenant is broken, the grantee has nothing which he can 
 convey. 50 But it is maintained by the courts of England, and 
 some of the United States, that a covenant of lawful seisin 
 is both present and future in its operation ; that if the grantor 
 has the actual seisin it is not immediately broken, but is sub- 
 sequently broken if the grantee or his assigns are evicted by 
 the assertion of the paramount title. Being future in its 
 
 48 Pollard r. Dwight, 4 Cranch 430 ; Bartholomew V. Candee, 14 Pick. 
 170; Greenby v. Wilcocks, 2 Johns. 1; Dickinson v. Hoomes, 8 Gratt. 
 397; Devore V. Sunderland, 17 Ohio 60. 
 
 4 Greenby V. Wilcox, 2 Johns. 1; Withy v. Munford, 5 Cow. 137; 
 Beddoe V. Wadsworth, 21 Wend. 124; Raymond v. Raymond, 10 Gush. 
 134; Wilson V. Widenham, 51 Me. 567; Wilson V. Cochrane, 46 Pa. St. 
 229; Birney V. Hann, 3 A. K. Marsh. 324; Wheaton v. East, 5 Yerg. 41; 
 Richard v. Brent, 59 111. 45, 14 Am. Rep. 1 ; Salmon v. Vallejo, 41 Gal. 
 481; Wait v. Maxwell, 5 Pick. 217, 16 Am. Dec. 391; Griffin v. Fair- 
 brother, 1 Fairf . 59 ; Wheeler v. Hatch, 3 Fairf . 389 ; Boothby v. Hatha- 
 way, 20 Me. 255; Cushman v. Blanchard, 2 Greenl. 268, 11 Am. Dec. 
 76; Wilson V. Widenham, 51 Me. 567; Ballard V. Child, 34 Me. 355; 
 Backus v. McCoy, 3 Ohio 211, 17 Am. Dec. 585; Kirkendall v. Mitchell, 
 3 McLean, 145. 
 
 BoRedwine v. Brown, 10 Ga. 311; Ross v. Turner, 7 Ark. 132. 
 892
 
 CH. XXIII.] COVENANTS IN DEEDS. 614 
 
 operation, it is held in those States to pass to the assignee with 
 a grant of the estate. 51 The failure to distinguish between a 
 covenant of lawful seisin and of indefeasible seisin in the 
 earlier cases no doubt gave rise to this variance of judicial 
 opinion. The better, and what is deemed to be the American, 
 doctrine is that the covenant of lawful seisin does not cove- 
 nant for the conveyance of an indefeasible estate, and is, 
 therefore, not broken by a subsequent eviction of the grantee. 
 To hold that the covenant of seisin means an indefeasible 
 seisin would give to that covenant the same extensive opera- 
 tion as the covenant of warranty. Everywhere in the United 
 States, if the grantor expressly or impliedly covenants that 
 he is seised of an indefeasible estate, it is a future covenant 
 and runs with the land. Any one who holds under the cove- 
 nantee may sue on the covenant, whenever he has been evicted 
 by the paramount title. 62 
 
 6i Kingdon v. Nottle, 1 Maule & S. 355 ; Martin v. Baker, 5 Blackf . 
 232; Coleman V. Lyman, 42 Ind. 289; Great Western, etc., Co., v. Saas, 
 24 Ohio St. 542; Schofield v. Homestead Co., 32 Iowa 317, 7 Am. Rep. 
 197; Mills v. Catlin, 22 Vt. 106; Kincaid v. Brittain, 5 Sneed 119; Pol- 
 lard V. Dwight, 4 Cranch 430; McCarty v. Leggett, 3 Hill 134; Greenby 
 V. Wilcocka, 2 Johns. 1, 3 Am. Dec. 379; Brandt v. Foster, 5 Clarke 
 287; Abbott t>. Allen, 14 Johns. 248; Fitch V. Baldwin, 17 Johns. 161; 
 Fitzhugh .v. Coghan, 2 Marsh. J. J. 430, 19 Am. Dec. 140; Coit V. Mc- 
 Reynolds, 2 Rob. (N. Y.) 655; Martin v. Baker, 5 Blackf>232 ; Thomas 
 v. Perry, 1 Peters C. C. 57; Woods v. North, 6 Humph. 409, 44 Am. 
 Dec. 312. See Lindsey v. Veasy, 62 Ala. 421 ; Matteson v. Vaughn, 38 
 Mich. 373. " At common law an assignee of the covenantee could not 
 maintain an action of covenant, as privity of contract does not exist, 
 and privity of estate alone is not sufficient to sustain the action. This 
 rule was changed in England by St. 32 Henry VIII, c. 10, and in Ohio, 
 while the statute of Henry VIII has not been adopted, yet the same 
 object is accomplished by the Code of Civil Procedure, which authorizes 
 suit by the party beneficially interested, and hence empowers the as- 
 signee of a covenant to sue in his own name." Broadwell v. Banks 
 (U. S. C. C., Mo., 1905), 134 Fed. Rep. 470. 
 
 oaGarfield v. Williams, 2 Vt. 328; Smith v. Strong, 14 Pick. 123; 
 Raymond v. Raymond, 10 Gush. 134; Abbott v. Allen, 14 Johns. 248; 
 Stanard V. Eldridge, 16 Johns. 254; Wilson V. Forbes, 2 Dev. 30; Kin- 
 caid v. Brittain, 5 Sneed 123; Allen v. Kennedy, 91 Mo. 324, 2 S. W. 
 Uep. 142. See, also, Broadwell v. Banks, 134 Fed. Rep. 470. 
 
 8P3
 
 615 COVENANTS IN DEEDS. [PART III. 
 
 615. What facts constitute a breach. The covenant of 
 seisin is defined to be an assurance that he has the very estate, 
 both in quantity and quality, which he professes to convey. 53 
 So if the grantor expressly conveys only the lands, "whereof 
 he was seised on" a certain day, the covenant of seisin is 
 not broken if other lands fall under the general description, 
 of which he did not have the seisin. 84 Therefore, any out- 
 standing right or title which diminishes the quality or quan- 
 tity of the technical seisin will be a breach of the covenant. 
 It will be broken if the estate is less in duration or quantity 
 than what is described. 55 So, also, if the estate described is 
 not, to any extent, the property of the grantor. 56 The cove- 
 nant is also broken where the land conveyed has upon it 
 fences, buildings, and other erections belonging to other per- 
 sons, if there is no restraining clause in the deed. 67 But, on 
 the other hand, easements, the exercise of which do not affect 
 the technical seisin of the grantee, such as a right of way, a 
 public highway, or railroad, will not constitute a breach of the 
 covenant. 58 An outstanding judgment, mortgage, or right of 
 
 v. Richards, 11 East 641; Pecarev. Chouteau, 13 Mo. 527. 
 
 " Thomas v. Perry, Pet C. Ct. 49. 
 
 05 Downer V. Smith, 38 Vt. 468; Lindley v. Dakin, 13 Ind. 388; Phipps 
 v. Tarpley, 24 Miss. 597; Kellogg v. Malin, 50 Mo. 496; Wilson v. 
 Forbes, 2 Dev*. 35; Wilder v. Ireland, 8 Jones L. 90; Sedgwick v. Hol- 
 lenback, 7 Johns. 376; Wheeler v. Hatch, 12 Me. 389; Comstock v. 
 Comstock, 23 Conn. 352. See, Chenault v. Thomas (Ky. 1904), 83 S. 
 W. Rep. 109. 
 
 eo Wheelcock v. Thayer, 16 Pick. 68 ; Basford r. Pearson, 9 Allen 
 389; Bacon v. Lincoln, 4 Cush. 210; Morrison v. McArthur, 43 Me. 567; 
 Koepke v. Winterfield (Wis. 1902), 92 N. W. Rep. 437. 
 
 "Mott t'. Palmer, 1 N. Y. 564; Tifft V. Horton, 53 N. Y. 377; Powers 
 f. Dennison, 30 Vt. 752; Van Wagner v. Van Nostrand, 19 Iowa 427. 
 See, Righter V. Winters (N. J. Ch. 1905), 59 Atl. Rep. 770. 
 
 ss Whitbeck v. Cook, 15 Johns. 483 ; Mills V. Catlin, 22 Vt. 98 ; Lewis 
 v. Jones, 1 Pa. St. 336; Fitzhugh v. Croghan, 2 J. J. Marsh. 429; Kel- 
 logg r. Malin, 50 Mo. 496, 11 Am. Rep. 426. But it has been held to be 
 broken by an outstanding right to use the water of a spring. Lamb v. 
 Danforth, 59 Me. 324 ; Clark v. Sonroe, 38 Vt. 469. And by a right to 
 restrain the damming of water. Traster v. Nelson, 29 Ind. 96; Hall f. 
 Gale, 14 Wis. 55. 
 894
 
 CH. XXIII.] COVENANTS IN DEEDS. 5 
 
 dower, does not constitute a "breach of the covenant, an.! i.i 
 the case of a mortgage, it does not matter whether the mort- 
 gage is construed to be a conveyance or only a lien. 59 But 
 if the grantee is himself seised, he will be estopped from 
 setting up his seisin in an action for the breach of the cove- 
 nant of seisin. 60 
 
 616. Covenants against incnmb'rances. This covenant is 
 intended to provide security against the assertion of "every 
 right to, or interest in the land, which may subsist in third 
 persons, not consistent with the passing of the fee by the con- 
 veyance. " 61 The same contrariety of opinion exists as to the 
 character of covenants against incumbrances as was discov- 
 ered in regard to the character of covenants of seisin, viz.: 
 whether the covenant is one in prcesenti, broken, if at all, as 
 soon as it is made, and, therefore, does not pass to the grantee's 
 assigns; or whether it is a future covenant, and, therefore, 
 enforcible by whoever is injured by the incumbrance. The 
 generally prevailing doctrine in this country is, that it is a 
 covenant in prcesenti, and does not run with the land. 62 But 
 in some of the States of this country it is held to be a cove- 
 rs Sedjrwick v. Hollenback, 7 Johns. 376; Stanard V. Eldridge, 16 
 Johns. 254 ; Lewis v. Lewis, 5 Rich. L. 12 ; Massey V. Craine, 1 Mc- 
 Cord 489; Reasoner v. Edmundson, 5 Ind. 394. But see Voorhis v. For- 
 -ytlic. 4 Biss. 409. 
 
 no Fitch v. Baldwin, 17 Johns. 161; Furness v. Williams. 11 111. 229. 
 i 2 Greenl. on Ev., Sec. 242 ; Gary v. Daniels, 8 Mete. 482 ; Bronson 
 r. Coffin, 108 Mass. 175; Mitchell r. Warner, 5 Conn. 527. "A cove- 
 nant against incumbrances is broken when made, if incumbrances exist 
 when the deed is delivered." Dahl v. Stakke (N. D. 1903), 96 N. W. 
 Rep. 353. 
 
 62 Clark V. Swift, 3 Mete. 392; Thayer v. Clemence, 22 Pick. 490; 
 Whitney V. Dinmore, 6 Cush. 127 ; Runnels f. Webster, 59 Me. 488 ; Russ 
 v. Perry, 49 N. H. 547; Garrison v. Sanford, 12 N. J. L. 261; Funk r, 
 Voneida, 11 Serg. & R. 109; Frink v. Bellis, 33 Ind. 135; Guerin v. 
 Smith, 62 Mich. 369, 28 N. W. Rep. 906. See Richard v. Bent, 59 111. 
 38, 14 Am. Rep. 1. " A covenant against incumbrances in a deed does 
 not run with the land." Brass v. Vandecar (Neb. 1903), 96 N. W. 
 Rep. 1035. See, Dahl v. Stakke (N. D.), 96 N. W. Rep. 353. 
 
 893
 
 616 COVENANTS IN DEEDS. [PART III. 
 
 nant in futuro, and, therefore, one running with the laud. 
 The covenant is broken when the outstanding right is en- 
 forced. 63 Probably this variance of opinion, as in the case 
 of covenants of seisin, originated in a failure to note care- 
 fully the distinction between a covenant that the estate is free 
 from incumbrances, and a covenant that the grantee shall 
 enjoy the estate free from incumbrances. The latter is prac- 
 tically a covenant for quiet enjoyment, and being future in 
 character, passes with the land to the grantee's assigns. 04 
 The grantee or his assignee may recover whatever loss he may 
 have sustained by the enforcement of the incumbrance, and 
 where the covenant takes the form of an obligation to dis- 
 charge incumbrances, the right of action accrues immediately 
 upon the covenantor's failure to perform. 05 If it be an 
 ordinary covenant against incumbrances, the grantee can only 
 obtain nominal damages, unless he can show that he has suf- 
 fered an actual loss. If the incumbrance be a mortgage or 
 other future claim, the damages will be nominal, unless the 
 mortgage or other lien is enforced before the action on the 
 covenant is instituted. But if the incumbrance is a pre- 
 existing easement, substantial damages may be recovered at 
 any time. 66 
 
 ss Foote r. Burnett, 10 Ohio 317. See Sprague v. Baker, 17 Mass. 
 586; McCrady v. Brisbane, 1 Nott. & M. 104. In some of the States, 
 although the courts take the position that the covenant against incum- 
 brance is a covenant in prcesenti, they hold that it runs with the land, 
 and will support an action by the second or third grantee under the 
 covenantee. Kradler V. Sharp, 36 111. 236; Richard v. Bent, 59 111. 38, 
 14 Am. Rep. 1; Winningham v. Pennock, 36 Mo. App. 688. 
 
 64Rawle Cov. 92; Lethbridge v. Mytton, 2 B. & Ad. 772; Hall v. 
 Deane, 13 Johns. 105; Greene V. Creighton, 7 R. I. 1 ; Hutchins v. 
 Moody, 30 Vt. 658; Carter v. Denman, 23 N. J. L. 273; Grice v. Scar- 
 borough, 2 Spears 649; Anderson v. Knox, 20 Ala. 156. See, Sibley v. 
 Hutchinson (X. H. 1903), 55 Atl. Rep. 547. 
 
 es 3 Washburn on Real Prop. 464 ; Gardner v. Niles, 16 Me. 280 ; Jen- 
 nings v. Morton, 35 Me. 309; Booth r. Starr, 1 Conn. 24!); Lathrop v. 
 Atwood, 21 Conn. 123; Hogan's Exrs. v. Calvert, 21 Ala. 1!)9. 
 
 Whitney v. Dinsmore, 6 Cush. 124; Churchill v. Hunt, 3 Denio 321; 
 Ardesco Oil Co. V. N. A. Mining Co., 66 Pa. St. 375; Richard v. Bent, 
 896
 
 CH. XXIII.] COVENANTS IN DEEDS. 617 
 
 617. What circumstances constitute a breach of covenant 
 against incumbrances. The following may be mentioned as 
 the more prominent examples of incumbrances, the existence 
 of which will constitute a breach of the covenant, supplement- 
 ing then} by the statement that there are others, and that 
 every outstanding right which comes under the definition of an 
 incumbrance above given would be a breach of the covenant : 
 An inchoate right of dower ; G7 a judgment lien ; 68 an out- 
 standing mortgage ; 69 taxes and assessments, when ascertained 
 and determined ; 70 an outstanding lease in possession ; 71 con- 
 ditions and covenants, restricting the use of premises. 72 And 
 
 59 Til. 38, 14 Am. Rep. 1. "A purchaser of property cannot recover as 
 for breach of warranty as to the amount due on a mortgage thereon, 
 foreclosure not having been attempted, and he not having been dis- 
 turbed in his possession." Inderlied r. Honeywell, 84 N. Y. S. 333. 
 
 67 Shearer v. Ranger, 22 Pick. 447; Jenks v. Ward, 4 Mete. 412; 
 Fletcher v. State Bank, 37 N. H. 397; McAlpine v. Woodruff. 11 Ohio 
 St. 120. But see Bigelow v. Hubbard, 97 Mass. 198; Bostwick V. Wil- 
 liams, 36 111. 69. 
 
 os Jenkins v. Hopkins, 8 Pick. 346; Hall r. Dean, 13 Johns. 105. See, 
 Revenel v. Ingram (N. C. 1902), 42 S. E Rep. 967. 
 
 c 9 Bean r. Mayo, 5 Me. 94; Freeman v. Foster. 55 Me. 508; Brooks v. 
 Moody, 25 Ark. 452; Lively v. Rice, 150 Mass. 171, 22 N. E. Rep. 888; 
 Gow v. Allen (Mo. 1905). 87 S. W. Rep. 590. See, also, Harr v. 
 Shafer (W. Va. 1903), 43 S. E. Rep. 89. 
 
 70Rundell f. Lakey, 40 N. Y. 514; Barlow v. St. Nicholas Bank, 63 
 N. Y. 399; Cochrane V. Guild, 106 Mass. 29; Hill v. Bacon, 110 Mass. 
 C83; Pierce r. Brew, 43 Vt. 292; Long v. Moler, 5 Ohio St. 271; Almy 
 r. Hunt, 48 111. 45; Cadmus v. Fagan, 47 N. J. L. 549; People v. Gilon, 
 24 Abb. N. C. 125; 9 N. Y. S. 563; Hartshorn . Cleveland (N. J.), 9 
 Atl. Rep. 974; Harper V. Dowdney, 47 Hun 227. But see Hartshorn 
 r. Cleveland, supra; Cemowsky v. Fitch (Iowa 1903). 96 N. W. Rep. 
 7.">4; Patterson v. Cappan (Wis. 1905), 102 N. W. Rep. 1083; Cain v. 
 Fisher (W. Va.), 50 S. E. Rep. 752. 
 
 '7i Gale v. Edwards, 52 Me. 360; Batchelder v. Sturgis, 3 Cush. 201; 
 Weld v. Traip, 14 Gray 330; Porter v. Bradley, 7 R. I. 538; Cross v. 
 Noble, 67 Pa. St. 77; Grice v. Scarborough, 2 Spears 649. "An unex- 
 pired term or lease, which prevents the grantee in a deed from recover- 
 ing possession of the land described therein, is an incumbrance." Brass 
 v. Vandecar (Neb. 1903), 96 N. W. Rep. 1035. 
 
 72 Plymouth v. Carver, 16 Pick. 183; Parish v. Whitney, 3 Gray 516; 
 
 57 897
 
 618 COVENANTS IN DEEDS. [PART III, 
 
 it may be stated that pre-existing easements upon the land 
 will constitute breaches of the covenant against incumbrances. 
 Among them may be mentioned railroads, private rights of 
 way, rights to artificial water-courses, to cut trees, to mine, 
 to maintain dams and aqueducts, etc. 73 Although it has been 
 denied in New York, Pennsylvania and! Wisconsin, 7 * the pre- 
 vailing doctrine is that the existence of a public highway over 
 the land is a breach of the covenant, even, though the grantee 
 knew of its existence. 75 Any one of these circumstances will 
 constitute a breach of the covenant, even though the grantee 
 is aware of its existence when he took the deed and paid the 
 consideration. 76 
 
 618. Covenant for quiet enjoyment. This covenant is 
 "an assurance against the consequences of a defective title, 
 and of any disturbances thereupon." 77 The covenant for 
 quiet enjoyment is in common use in England, and in the 
 United States it is commonly met with in leases. But in the 
 ordinary conveyance of freeholds it is almost altogether super- 
 
 Bronson r. Coffin. 108 Mass. 175; Burbank r. Pillsbury, 48 N. H. 475 r 
 Foster f. Foster, 62 N. H. 46. 
 
 TsSpurr v. Andrews, 6 Allen 420; Prescott v. White, 21 Pick. 341; 
 Lamb v. Danforth, 59 Me. 322, 8 Am. Rep. 426; Brooks v. Curtis, 50 N. 
 Y. 639, 10 Am. Rep. 545; Smith v. Sprague, 40 Vt. 310; Wilson i>. 
 Cochrane, 46 Pa. St. 233; Kutz v. McCune, 22 Wis. 628; Burk v. Hill, 
 
 48 Ind. 52, 17 Am. Rep. 731; Barlow v. McKinley, 24 Iowa 70; Beach 
 v. Miller, 51 111. 206, 2 Am. Rep. 290; Kellogg v. Malin, 50 Mo. 496, 
 11 Am. Rep. 426. 
 
 Whitbeck v. Cook, 15 Johns. 483; Patterson . Arthur, 9 Watts 
 152; Wilson V. Cochrane, 46 Pa. St. 229; Kutz v. McCune, 22 Wis. 628. 
 
 ' Haynes v. Young, 36 Me. 557 ; Lamb v. Danforth, 59 Me. 322, 8 Am. 
 Rep. 426; Parish v. W 7 hitney, 3 Gray 516; Burk v. Hill, 48 Ind. 52, 17 
 Am. Rep. 731; Beach v. Miller, 51 111. 206, 2 Am. Rep. 290; Kellogg v. 
 Malin, 50 Mo. 496, 11 Am. Rep. 426. 
 
 TeHoovey V. Newton, 7 Pick. 29; Harlow V. Thomas, 15 Pick. 68; 
 Funk v. Voneida, 11 Serg. & R. 112; Snyder v. Lane, 10 Ind. 424; Beach 
 r. Miller, 51 111. 206, 2 Am. Rep. 290; Kincaid v. Brittain, 5 Sneed 119. 
 Contra, Hutz v. McCune, 22 Wis. 628. See, Allen v. Taylor (Ga. 1905), 
 
 49 S. E. Rep. 799. 
 
 "Howells v. Richards, 11 East 633. 
 898
 
 CH. XXIII.] COVENANTS IN DEEDS. 619 
 
 ceded by the covenant of warranty, from which it cannot be 
 materially distinguished. 78 The operation of the two cove- 
 nants being almost identical, an exhaustive statement will not 
 be needed here. It suffices to say, that nothing but actual or 
 constructive eviction, by the assertion of the paramount title, 
 will constitute a breach of this covenant. 79 
 
 619. Covenant of warranty. As has been stated in the 
 preceding paragraph, covenants for quiet enjoyment and of 
 warranty are practically identical in their operation. An 
 attempt has been made to distinguish them by the statement 
 that the former relates to the possession and the covenant 
 is broken by an eviction of laivful right; while the covenant 
 of warranty relates to the title, and requires the eviction to 
 be b'y paramount title as well as by lawful right, in order to 
 constitute a breach. 80 But since an eviction can be lawful 
 only under a paramount title, it is difficult to see in what this 
 supposed difference lies. The same acts which will constitute 
 a breach of one covenant will be a breach of the other also. 
 In order that the covenants may be broken, there must be an 
 actual or constructive eviction of the whole or a part of the 
 premises. 81 But the grantee need not resist the claim of the 
 
 "Rawle Cov. 125. 
 
 79 Smith v. Shepard, 15 Pick. 147; Russ v. Steele, 40 Vt. 315; Cow- 
 drey V. Coit, 44 N. Y. 382, 4 Am. Rep. 690 ; Ross v. Dysart, 33 Pa. St. 
 452; Hand v. Armstrong, 34 Ga. 232; Murphy v. Price, 48 Mo. 250; 
 Johnson v. Nyce, 17 Ohio 66; Clark v. Lineberger, 44 Ind. 223; Pence 
 v. Duval, 9 B. Mon. 49; Thomas v. Stickle, 32 Iowa 76; McGary v. 
 Hastings, 39 Cal. 360, 2 Am. Rep. 456; Scrivner V. Smith, 100 N. Y. 471 ; 
 53 Am. Rep. 224 ; Hayes v. Ferguson, 15 Lea 1 ; Morgan v. Henderson, 
 2 Wash. 367; McAlester v. Landers, 70 Cal. 79, 11 Pac. Rep. 505. See 
 ante, Sees. 144, 152, 153. 
 
 so Fowler v. Poling, 6 Barb. 165; Wheeler v. Wayne Co. (111.), 24 
 N. E. Rep. 625. "A judgment against a grantee of land for possession 
 thereof is not sufficient to constitute a breach of a covenant of warranty; 
 an actual ouster, or a disturbance of possession equivalent to an ouster, 
 being necessary/' Ravenel v. Ingram (N. C. 1902), 42 S. E. Rep. 967. 
 
 i West r. Stewart, 7 Pa. St. 122; Bostwick v. Williams, 36 111. 69; 
 Bayer v. Schultze, 54 N. Y. Super. Ct. 212; Barry v. Guild, 28 111. App. 
 
 899
 
 619 COVENANTS IN DEEDS. [PART III. 
 
 contestant until he has been evicted by process of law. He 
 may voluntarily yield the possession upon demand of the 
 owner of the paramount title, 82 or purchase the outstanding 
 title from the adverse claimant. 83 But he does this at his 
 peril, and the burden of proof in a subsequent action on the 
 covenant lies on him to show, that the title to which he yielded 
 possession was really the paramount title. 84 A judgment in 
 ejectment is a breach of the covenant, and the grantee need 
 not wait to be actually evicted. 85 But in all these cases the 
 covenant is not broken by eviction, unless under a lawful and 
 paramount title. 86 And there will be no breach of the cove- 
 nant, if land is confiscated in the exercise of the right of emi- 
 nent domain. 87 It matters not what may be the nature of the 
 paramount claim. If it is paramount, and the enforcement 
 
 39. In South Carolina and elsewhere the existence of a paramount 
 title in a third person is sufficient, without eviction, to constitute a 
 breach of the covenant. Biggus t?. Bradley, 1 McCord 500; Mackey v. 
 Collins, 2 Nott & M. 186; Clapp v. Herdman, 25 111. App. 509. 
 
 82 Knepper v. Kurtz, 58 Pa. St. 484; Clarke v. McAnulty, 3 Serg. & R. 
 364; Oilman v. Haven, 11 Gush. 330; Greenvault v. Davis, 4 Hill 643; 
 Kellogg v. Plait, 33 N. J. 828; Claycomb v. Munger, 51 111. 376; Mc- 
 Gary v. Hastings, 39 Cal. 360, 2 Am. Rep. 456; Lambert V. Estes, 99 
 Mo. 604, 13 S. W. Rep. 284; Holliday v. Menifee, 30 Mo. App. 207. 
 Contra, Ferris V. Harshea, Mart. & Y. 52. 
 
 ssEversole V. Early (Iowa), 44 N. W. Rep. 897; Petrie V. Folz, 54 N. 
 Y. Super. 223. 
 
 s* Stone v. Hooker, 9 Cow. 154; Smith v. Shepard, 15 Pick. 147; 
 Clark v. McAnulty, 3 Serg. & R. 364; Crance v. Collenbaugh, 47 Ind. 
 256; Lambert v. Estes, 99 Mo. 604, 13 S. W. Rep. 284. 
 
 85 Loughran V. Ross, 45 N. Y. 792 ; Cowdrey v. Coit, 44 N. Y. 382, 
 4 Am. Rep. 690; Noonan v. Lee, 2 Black 499; Gleason v. Smith, 41 Vt. 
 293; Kincaid V. Brittain, 5 Sneed 124; Hale v. New Orleans, 13 La. An. 
 499; Collier v. Cowger, 52 Ark. 322/12 S. W. Rep. 702; Brown v. 
 Allen, 10 N. Y. S. 714. " A judgment establishing a paramount title 
 is the legal equivalent of an eviction, and a satisfaction thereof perfects 
 the cause of action against the warrantor of the title." McCrillis v. 
 Thomas (Mo. App. 1905), 85 S. W. Rep. 673. 
 
 se Gleason v. Smith, 41 Vt. 296. See Memmert v. McKean, 112 Pa. St. 
 315. 
 
 87 Brown v. Jackson, 3 Wheat. 452 ; Blanchard v. Brooks, 12 Pick. 
 47; Sweet v. Brown, 12 Mete. 175; Raymond v. Raymond, 10 Cush. 132; 
 900
 
 CH. XXIII.] COVENANTS IN DEEDS. 620 
 
 of it will take a portion, or the whole of the land conveyed, 
 or will diminish the value of it by restricting the enjoyment 
 of it, the assertion of the claim will be a breach of the cove- 
 nant. Therefore, an outstanding right to an easement, con- 
 ditions restraining the use of the land, a mortgage or other 
 lien, a wife's or widow's dower, and the like, will constitute 
 a breach of the covenant of warranty, when they are en- 
 forced. 88 But if the covenant is signed by two or three joint 
 tenants or tenants in common, it is not broken by the assertion 
 of a paramount title to an undivided third by the purchaser 
 from the third co-tenant, where the third co-tenant had been 
 expected to join in the conveyance but had refused. 89 The 
 covenant of each covenantor is held in such case to be several. 
 
 620. The character of the covenant of warranty. The 
 covenant of warranty in its present character is a mod- 
 ern covenant of title, and is an adaptation of an old English 
 covenant to American wants. It is now the most common 
 covenant of title, and the only one in general use. This is a 
 personal obligation, binding the warrantor and his personal 
 representatives, to warrant and defend the title of the cove- 
 nantee against adverse claims, and binds his heirs and "devisees 
 only when they are expressly mentioned, and then only to the 
 
 Peck r. Jones, 70 Pa. St. 83; Adams v. Ross, 30 N. J. L. 510; Doe v. 
 Dowdall, 3 Houst. 380; Kimball v. Temple, 25 Cal. 452. 
 
 ss Lamb r. Danforth, 59 Me. 324, 8 Am. Rep. 426; Haynes v. Young, 
 
 36 Me. 561; Day v. Adams, 42 Vt. 510; Harlow v. Thomas, 15 Pick. 66; 
 White tv-Whitney, 3 Mete. 81; Estabrook v. Smith, 6 Gray 572; Cow- 
 dry v. Coit, 44 N. Y. 382, 4 Am. Rep. 690. But see Hendricks v. Stark, 
 
 37 N. Y. 106; Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300; Hill v. 
 Bacon, 110 Mass. 388; Flynn v. Williams, 1 Ired. L. 509; Southerland 
 v. Stout, 68 N. C. 446; Moore v. Vail, 17 111. 185. But see Memmert 
 V. McKeen, 112 Pa. St. 315. But an incumbrance, which the grantee 
 undertakes to pay, will not work a breach of the covenant. Stebbins 
 c. Hall, 29 Barb. 524; Belmont v. Coman, 2 N. Y. 438; Gage v. Brew- 
 ster, 31 N. Y. 221 ; Trotter v. Hughes, 2 Vt. 74 ; Allen v. Lee, 1 Ind. 
 58; Pitman r. Conner, 27 Ind. 337. See, Sears v. Broody (Neb. 1902), 
 02 X. W. Rep. 21 *. 
 
 so Redding r. T.nn-b (Mich.), 45 N. W. Rep. 997. 
 
 901
 
 621 COVENANTS IN DEEDS. [PART III. 
 
 extent of the assets received by them from the warrantor. 
 And as a personal covenant, it may be barred by the Statute 
 of Limitations. 00 The right of action is not affected by a 
 failure to record the conveyance and covenant/' 1 If the cove- 
 nant is broken, as will be more fully explained in a subse- 
 quent paragraph, the covenantee is entitled to an action for 
 damages against the covenantor. 02 But a different remedy 
 was provided in the case of 
 
 621. The feudal warranty. Of which the modern war- 
 ranty is a descendant. The feudal warranty grew out of the 
 relation of lord and vassal. Upon receiving the homage of the 
 vassal the lord pledged himself to warrant and defend the 
 title to the vassal's lands, and provide him with others of 
 equal value if he were ousted of his lands by a paramount 
 title. If the vassal or tenant was evicted he could call upon 
 the lord for some more lands, as compensation for those 
 which he had lost. But there was no action for damages. 93 
 The ancient feudal warranty has long since become obsolete, 
 and has been replaced by the personal covenant above de- 
 scribed. 94 In only one respect does the modern covenant bear 
 any very close and striking resemblance to the feudal war- 
 ranty; and that is, in its operation as an estoppel, to bind an 
 after-acquired title in the hands of the warrantor and privies, 
 and prevent its enforcement against the grantee. Wherever 
 a grantor undertakes to convey an estate to which he has no 
 title, if the deed contains a covenant of warranty, he is es- 
 topped from setting up an adverse title which he has subse- 
 
 o Cole v. Raymond, 9 Gray 17; Holden v. Fletcher, 6 Curtis 235; 
 Townsend v. Morris, 6 Cow. 126; Athens v. Nale, 25 111. 198; Bostwick 
 v. Williams, 36 111. 70; Wheeler v. Wayne Co. (111.), 24 N. E. Rep. 
 625; Sine v. Fox, 33 W. Va. 521, 11 S. E. Rep. 218. 
 
 si Boyer v. Amet, 41 L. An. 721, 6 So. Rep. 734. 
 
 82 See post, Sec. 625. 
 
 os 3 Washburn on Real Prop. 468. 
 
 8* Co. Lit. 384 a, Butler's note 332; Townsend v. Morris, 6 Cow. 126; 
 Caldwell v. Kirkpatrick, 6 Ala. 60; 4 Kent's Com. 472; 3 Washburn on 
 Real Prop. 468. 469. 
 902
 
 CH. XXni.] COVENANTS IN DEEDS. 622 
 
 q'uently acquired. And this is the case, even though the 
 grantee has by his deed acquired neither title nor possession. 
 The grantee may maintain ejectment against the grantor so 
 soon as he has acquired the title and possession. Or, if the 
 grantor has only acquired the title and the land is in posses- 
 sion of a third person, he may maintain an equitable suit for 
 a conveyance of the newly acquired title. 05 The heirs are 
 bound by the covenant of warranty as an estoppel, in respect 
 to the lands acquired by descent from the ancestor who war- 
 ranted, but are not estopped from setting up an adverse title 
 acquired by purchase, although they will be liable in an action 
 on the covenant to the extent of the property received by them 
 from the ancestor. 90 
 
 ~ 622. Special and limited covenants of title Exceptions to 
 operation of covenant. So far only general covenants of 
 warranty have been referred to; that is, covenants in which 
 the grantor covenants to warrant and defend the title against 
 the lawful adverse claims of all persons whomsoever. But 
 the covenant need not always be general. It may be specially 
 limited to the actions and claims of certain persons. Thus, a 
 covenant against all persons claiming by, through, or under 
 the grantor is a special covenant, and a paramount title 
 against the grantor, not created by himself, is no breach of 
 the covenant. And if the grantor, after conveying with 
 special warranty, in which he only covenants against any de- 
 fects in the title resulting from his past transactions, acquires 
 the paramount title, he may set it up against his grantees and 
 assigns. He is not estopped by this special warranty. 07 In 
 
 osTerrett v. Taylor, 9 Cranch 53; White v. Patten, 24 Pick. 324; 
 Jackson v. Murray, 12 Johns. 201; Jackson v. Stevens, 13 Johns. 316; 
 Baxter v. Bradbury, 20 Me. 260; Cotton v. Ward, 3 B. Mon. 304; King 
 T. Gilson, 32 111. 353; Hope 17. Stone, 10 Minn. 141. See, also, ante, 
 Sees. 511, 515. 
 
 Oliver v. Piatt, 3 How. 412; Bates v. Norcross, 17 Pick. 14; Cole 
 r. Raymond, 9 Gray 217; Torrey v. Minor, 1 Smed. & M. Ch. 489. 
 
 T Davenport v. Lamb, 13 Wall. 418; Jackaon f. Peck, 4 Wend. 300; 
 
 903
 
 622 COVENANTS IN DEEDS. [PART III. 
 
 the same manner the operation of the covenant of warranty 
 may be limited by the description of the subject-matter of the 
 conveyance. Thus, if a deed purports to convey in terms the 
 right, title and interest of the grantor to the land described, 
 instead of conveying in terms the land itself, a general cov- 
 enant of warranty will be limited to that right or interest, 
 and will not be broken by the enforcement of a paramount 
 title outstanding against the grantor at the time of the con- 
 veyance. 98 But this position is assailed, and not without 
 good grounds, by other authorities." Mr. Washburn says:- 
 " Nor is it easy to see what the office or purpose of a covenant 
 of warranty can be when whatever is granted infallibly passes, 
 and can never be lawfully diverted by any future lawful act 
 or right of any one. The grantor cannot reclaim or disturb 
 what he has expressly granted ; nor could any one acquire any 
 right to disturb his grantee by any deed which the grantor 
 might subsequently make. ' ' 1 Exceptions can be and are 
 often made to the operation of the other covenants, of seisin 
 and against incumbrances. 2 Another important question con- 
 nected with the present subject, and one involving at times 
 considerable doubt, is whether an exception in the operation 
 of one of two or more covenants in a deed will be extended to 
 
 Jackson v. Winslow, 9 Cow. 13; Comstock t. Smith, 13 Pick. 116; 
 Trull t>. Eastman, 3 Mete. 124. 
 
 98 Brown v. Jackson, 3 Wheat. 452; Van Rensselaer V. Kearney, 11 
 How. 325; Sweet V. Brown, 12 Mete. 175; Raymond V. Raymond, 10 
 Cush. 132; Hoxie V. Finney, 16 Gray 332; Blodgett V. Hildreth, 103 
 Mass. 488 ; Bates v. Foster, 59 Me. 155 ; Freeman v. Foster, 55 Me. 508 ; 
 Williamson v. Test, 24 Iowa, 139; White u. Brocaw, 14 Ohio St. 344; 
 Adams v. Ross, 30 N. J. L. 510. 
 
 99Loomis v. Bedel, 11 N. H. 74; Mills u. Catlin, 22 Vt. 104; Rowe v. 
 Heath, 23 Texas 614. The statutory general covenant arising from the 
 use of the words " grant, bargain and sell," is held to be limited, in 
 Missouri, by the special covenant " against the lawful claims and de- 
 mands of the grantor and those under whom he claims." Miller v. 
 Bayless, 74 S. W. Rep. 648. 
 
 1 3 Washburn on Real Prop. 477. 
 
 2 Lively v. Rice, 150 Mass. 171, 22 N. E. 888; Keller v. Ashford, 133 
 U. S. 610; King v. Kilbride, 58 Conn. 109, 19 Atl. Rep. 519. 
 
 904
 
 CH. XXIII.] COVENANTS IN DEEDS. G_ j 
 
 others, so as to restrict their operation. Thus, if a deed con- 
 tains a covenant against incumbrances, except as to a certain 
 mortgage, followed by a general covenant of warranty, will 
 that exception apply to the warranty, so that foreclosure under 
 that mortgage will not constitute a breach of the covenant of 
 warranty? This question is always determined by ascertain- 
 ing the declared or implied intention of the grantor. If the 
 two covenants are given in the same connection, and from 
 that close connection it can be implied that the parties in- 
 tended the exception to apply to both covenants, both will be 
 treated as special covenants. While, on the contrary, the 
 latter covenant will be general and unaffected by the excep- 
 tion, if there does not appear in the deed to be any intimate 
 connection between the two covenants and the exception. In 
 Ho wells v. Richards the court say: " He (the grantor) might 
 from motives of prudence, be unwilling to subject himself to 
 a suit for the existence of an incumbrance, which he is willing 
 to covenant shall never be suffered to disturb -his grantee." 
 Where the exception expressly refers to the covenant of seisin 
 or against incumbrances, the presumption is very strong that 
 it does not apply to the covenants for quiet enjoyment or of 
 warranty. 3 
 
 623. Implied covenants. At common law the operative 
 word "give" in a deed of feoffment raised by implication 
 of law a covenant of warranty during the life of the grantor. 4 
 And so also there is an implied warranty in the old technical 
 conveyance of exchange? So also are there implied covenants 
 
 sHowells v. Richards, 11 East 634; Smith f. Compton, 3 B. & Ad. 
 198; Estabrook v. Smith, 6 Gray 572; Cornell v. Jackson, 3 Cush. 506; 
 Funk v. Voneida, 11 Serg. & R. 109; Rowe V. Heath, 23 Texas 614; 
 King v. Kilbride, 58 Conn. 109, 19 Atl. Rep. 519. 
 
 Kent v. Welch, 7 Johns. 258; Frost v. Raymond, 2 Caines 188. 
 
 s Dean v. Shelly, 57 Pa. St. 427 ; Bixler v. Sayler, 68 Pa. St. 148. But 
 this was the case only with the technical conveyance, called exchange. 
 There was no implied covenant of title, if the exchange was effected by 
 means of mutual deeds of bargain and sale. Gamble v. McClure, 69 
 Pa. St. 284. 
 
 905
 
 623 COVENANTS IN DEEDS. [PART III. 
 
 in leases. 6 But, as a general rule, in the conveyance of free- 
 hold estates in this country there are no implied covenants, 
 since the deeds in common use are those which operate under 
 the Statute of Uses, and they do not raise covenants by im- 
 plication. 7 But in a number of the States, notably Alabama, 
 Arkansas, California, Delaware, Illinois, Iowa, Mississippi, 
 Missouri, Pennsylvania and Texas, statutes have been enacted 
 whereby the "operative words," "grant, bargain and sell," 
 imply general covenants of seisin, against incumbrances, and 
 of warranty or quiet enjoyment. The statutes vary some- 
 what as to details, but are similar in general effect. 8 Whether 
 these statutory covenants are restrained in their operation by 
 the assertion of a special express covenant, is not clearly de- 
 termined. There can, of course, be in a deed both express 
 and implied covenants, and both can stand if they are con- 
 sistent. But if they are inconsistent, the natural rale would 
 be that the implied covenant would yield to the express cove- 
 nant. 9 And although this rule seems to be supported by the 
 authorities in the abstract, it is difficult at times to reconcile 
 their decisions in the particular case with the rule above 
 stated. 10 The safest course, in making a conveyance with 
 
 See ante, Sees. 144, 147. 
 
 7 Allen V. Sayward, 5 Me. 227 ; Bates v. Foster, 59 Me. 157 ; Sanford 
 1?. Travers, 40 N. Y. 140; Ricket v. Dickens, 1 Murph. 343; De Wolf f. 
 Hayden, 24 111. 529; Walk. Am. Law, 381; 3 Washburn on Real Prop. 
 489. 
 
 84 Kent's Com. 473; 3 Washburn on Real Prop. 489, 490; Gratz f. 
 Ewalt, 2 Binn. 95; Funk v. Voneida, 11 Serg. & R. 109; Latnam f. 
 Morgan, 1 Smed. & M. Ch. 611; Chambers V. Smith, 23 Mo. 174; Brown 
 v. Tomlinson, 2 Greene (Iowa) 527; King v. Gilson, 32 111. 353. See, 
 Miller v. Bayless (Mo. 1903), 74 S. W. Rep. 648; Bullitt v. Caryell 
 (Texas 1905), 85 S. W. Rep. 482. 
 
 Frontin V. Small, 2 Ld. Raym. 419; Merrill v. Frame, 4 Taunt. 329; 
 Line v. Stevenson, 5 Bing. N. C. 183; Schlencker V. Moxsy, 3 B. & C. 
 792; Dennett V. Atherton, L. R. 7 Q. B. 316. See, Miller v. Bayless, 74 
 S. W. Rep. 648. 
 
 10 See, Hawk v. McCullough, 21 111. 221; Alexander v. Schreiber, 10 
 Mo. 460; Funk V. Voneida, 11 Serg. & R. 109; Brown v. Tomlinson, 2 
 Greene (Iowa), which seems to oppose the doctrine that the express 
 906
 
 CH. XXIII. ]j COVENANTS IN DEEDS. 624 
 
 special covenants, is to use different operative words from 
 those which by statute imply covenants of title. Thus, it has 
 been held under the Missouri statute that covenants are not 
 implied in a deed where the grantor "bargains, sells, re- 
 leases, quitclaims, and conve"ys. ' ' u 
 
 624. Who may maintain actions on covenants of war- 
 ranty. Like covenants of quiet enjoyment, until a breach 
 has been committed, a covenant of warranty runs with the 
 land into the hands of the assignee and heirs, and may be 
 sued upon by the assignee or heir who is in possession when 
 the breach occurs, whether the alienation is voluntary or in- 
 voluntary. After a breach there can be no assignment at 
 common law, and it is still universally true that the covenant 
 then ceases to run with the land. 12 But in order that a cove- 
 nant may run with the land to assignees, the grantee must 
 by the conveyance acquire the actual or constructive seisin. 
 If at the time of the conveyance the grantor had neither title 
 nor seisin, nothing passes by the deed, and the covenant re- 
 mains in the grantee, and cannot be enforced by an assignee. 13 
 
 covenant will exclude the implied covenant, while Weems v. McCaughan, 
 7 Smed. & M. 422, supports the rule. 
 
 11 Gibson v. Chouteau, 39 Mo. 566; Valle r. Clemens, 18 Mo. 486. 
 
 isHurd V. Curtis, 19 Pick. 459; Slater f. Rawson, 1 Mete. 450; 
 White v. Whitney, Mete. 81; Withy v. Mumford, 5 Cow. 137; Ford v. 
 Walsworth, 19 Wend. 334; Moore v. Merrill, 17 N. H. 81; Dickinson v. 
 Hoomes, 8 Gratt. 353 ; Lawrence v. Senter, 4 Sneed 52 ; Brown v. Metz, 
 33 111. 339; Devin v. Hendershott, 32 Iowa 192; Preiss v. LePoidevin, 
 19 Abb. N. C. 123; Allen v. Kennedy, 91 Mo. 324, 2 S. W. Rep. 142. 
 " A covenant in a deed ' that they are free from all incumbrances ' does 
 not run with the land, so as to invest a remote grantee thereof with a 
 right of action against the assignor." Waters' Estate v. Bagley (Neb. 
 1902), 92 N. W. Rep. 637. 
 
 is Slater v. Rawson, 1 Mete. 450; Bartholomew v. Candee, 14 Pick. 
 167; Beddoe v. Wadsworth, 21 Wend. 120; Overfield v. Christie, 7 Serg. 
 & R. 177; Dickinson v. Hoomes, 8 Gratt. 353; Fitzhugh v. Croghan, 2 
 J. J. Marsh. 429. But see Wead v. Larkin, 54 111. 489; Van Court 
 v. Moore, 26 Mo. 92; Allen v. Kennedy. 91 Mo. 324, 2 S. W. Rep. 142. 
 See, Miller r. Baylesg (Mo. 1903), 74 S. W. Rep. 648. 
 
 907
 
 624 COVENANTS IN DEEDS. [PART III. 
 
 For actual adverse possession under a paramount title at 
 time of conveyance is itself a breach of the covenant. 14 This 
 lack of seisin does not prevent the covenant from operating 
 as an estoppel upon the subsequently acquired title. 15 The 
 covenant of warranty can be and is impliedly apportioned 
 between the assignees by a conveyance of parts or portions of 
 the land, to which the covenant is attached, to different 
 grantees. They each have a several and independent action 
 upon the covenant in respect to their portion of the land. 16 
 The assignee in possession at the time of the breach is gen- 
 erally the only person who can maintain an action upon the 
 covenant. 17 When his immediate grantor also warranted the 
 land to him, the assignee may bring suit on either or both of 
 the covenants, but of course can have but one recovery. 18 But 
 where there are successive covenants of warranty, given by 
 successive grantors, under certain circumstances an exception 
 arises to the general rule just stated, that the assignee in pos- 
 session is the only person who can maintain an action for the 
 breach of the covenant. Thus, if the assignee brings suit, as 
 he may, against any one of the covenantors but the first or 
 earliest, and recovers of him, this covenantor is remitted to 
 his right to be indemnified by the prior covenantors, and may 
 maintain action upon their covenants. But such cove- 
 nantor can only establish his right to institute the suit by 
 showing that the claims of the subsequent assignees have 
 been satisfied in full. 19 And in order that the prior cove- 
 
 i* Moore r. Vail, 17 111. 185. 
 
 isMcCasker V. McEvery, 9 R. I. 528; Wead r. Larkin, 54 111. 489; 
 Van Court v. Moore, 26 Mo. 92. 
 
 i 3 Washburn on Real Prop. 470 ; Kane V. Sanger, 14 Johns. 89 ; 
 Dickinson r. Hoomes, 8 Gratt. 353. 
 
 "Bickford v. Page, 2 Mass. 455; Wheeler v. Sohier, 3 Gush. 219; 
 Kane r. Sanger, 4 Johns. 89; Ford V. Walsworth, 19 Wend. 334; 
 Thompson r. Sanders, 5 B. Mon. 357; Libby v. Hutchinson (N. H. 
 1903), 56 Atl. Rep. 547. 
 
 is Withy v. Mumford, 5 Cow. 137; Markland t;. Crump, 1 Dev. & B. 
 95. 
 
 i Withy v. Mumford, 5 Cow. 137; Suydam V. Jones, 10 Wend. 185; 
 908
 
 CH. XXIII.] COVENANTS IN DEEDS. 625 
 
 nantor may be bound by the judgment against the interme- 
 diate covenantor, it is now generally recognized that the latter 
 may vouch in his prior covenantors, and if they fail to defend 
 the title and eviction follows, they cannot in the subsequent 
 suit against themselves set up the defense that the eviction 
 was not under a paramount title. 20 The notice of the pend- 
 ency of the suit, in order to be effectual in binding the prior 
 covenantors, must be certain and unequivocal. But it need 
 not be made a matter of record. A verbal or written notice 
 dehors the court, or the voluntary appearance of the prior 
 covenantor in the suit will be sufficient. 21 
 
 625. Damages, what, may be recovered. If the action is 
 on the covenant of seisin, and the covenant is satisfied by the 
 transfer of the actual, though tortious, seisin, and broken, if 
 at all, by the want of seisin at the time of conveyance, the 
 measure of damages is the consideration paid, if the con- 
 sideration can be ascertained, and if not, the value of the land 
 at the time of conveyance. And in determining the consider- 
 ation, parol evidence is admissible to contradict and control 
 the statement of consideration in the deed. 22 If the grantor 
 
 Thompson V. Shattuck, 2 Mete. 618; Wheeler v. Sohier, 3 Cush. 222; 
 Markland v. Crump, 1 Dev. & B. 94; Thompson v. Sanders, 5 B. Mon. 
 357. 
 
 20 Chamberlain v. Preble, 11 Allen 373; Boston v. Worthington, 10 
 Gray 498; Merritt v. Morse, 108 Mass. 276; Andrews v. Gillespie, 47 
 N. Y. 487; Cooper v. Watson, 10 Wend. 205; Littleton v. Richardson, 
 34 N. H. 187; Smith v. Sprague, 40 Vt. 43; Hines v. Allen, 34 Conn. 
 195 ; Chapman v. Holmes, 10 N. J. L. 20 ; Paul v. Witman, 3 Watts & 
 S. 409; Martin v. Cowles, 2 Dev. & B. 101; Gregg 17. Richardson, 25 
 Ga. 570; St. Louis v. Bissell, 46 Mo. 157; McConnell v. Downs, 48 111. 
 271; Claycomb v. Munger, 51 111. 377; Somers v. Schmidt, 24 Wis. 417, 
 1 Am. Rep. 191. 
 
 21 Chamberlain v. Preble, 11 Allen 373; Littleton v. Richardson, 34 
 N. H. 187; Miner v. Clark, 15 Wend. 427; Andrews v. Gillespie, 47 N. 
 Y. 487; Paul v. Witman, 3 Watts & S. 410; Crisfield 0. Storr, 36 Md. 
 129; Somers v. Schmidt, 24 Wis. 417, 1 Am. Rep. 191. 
 
 22 Bingham v. Weiderwax, 1 N. Y. 514 ; Morris v. Phelps, 5 Johns. 49 ; 
 Tucker v. Clarke, 2 Sandf. Ch. 96; Smith v. Strong, 14 Pick. 128; 
 
 909
 
 625 COVENANTS IN DEEDS. [PAKT IK. 
 
 subsequently acquires the paramount title before his grantcv 
 has been evicted by the adverse holder of the title, inasmuch 
 as the grantee acquires in certain cases the benefit of that title 
 under the doctrine of estoppel, the grantee can then obtain 
 only nominal damages. But full damages are recoverable, if 
 eviction has taken place before the grantor's acquisition of 
 the superior title. 23 And so also, if the covenant of seisin be 
 construed as covenanting for an indefeasible seisin, and the 
 grantor at the time of the conveyance has a tortious seisin, 
 only nominal damages may be recovered, unless the grantee 
 has been actually evicted, or has incurred expense in pur- 
 chasing the paramount title, when in one case the considera- 
 tion, and in the second case the expenses, will be the measure 
 of damages, as in suits on the covenant against incum- 
 brances. 24 In the action on the covenant against incum- 
 brances the measure of damages varies with circumstances. 
 If the covenant is merely broken by the existence of the in- 
 cumbrances, and the grantee remains undisturbed in his pos- 
 session, as would be the case with an outstanding mortgage, 
 nominal damages can alone be recovered. 25 But if the in- 
 cumbrance is of a permanent nature, as an existing easement, 
 and the enjoyment of the land is diminished by the exercise 
 of the easement, the measure of damages will be the loss in 
 
 Hodges v. Thayer, 110 Mass. 286; Cornell v. Jackson, 3 Gush. 506; 
 Lee v. Dean, 3 Whart. 331; Farmers' Bank v. Glenn, 68 N. C. 35; Cox 
 v. Strode, 2 Bibb 277; Lacey v. Marnan, 37 Ind. 168; Kincaid V. Brit- 
 tain, 5 Sneed 123; Rich v. Johnson, 2 Pinney 88; Lambert V. Estes, 99 
 Mo. 604, 13 S. W. Rep. 284. 
 
 23 Baxter v. Bradbury, 20 Me. 260 ; Blanchard f. Ellis, 1 Gray 195 ; 
 King v. Gilson, 32 111. 356. " The measure of damages for a breach of 
 a covenant of warranty of title is the consideration money lost to the 
 buyer, and not the value of the property, less any unpaid considera- 
 tion." West Coast Mfg. Inv. Co. v. West Coast Imp. Co. (Wash. 
 1903), 72 Pac. Rep. 455. 
 
 2* Whiting v. Dewey, 15 Pick. 428 ; Norman v. Winch, 65 Iowa 263 ; 
 Conrad V. Druids Grand Grove, 60 Wis. 258; Holladay V. Menefee, 30 
 Mo. App. 207. See, Newbury v. Lucas (Iowa), 101 N. W. Rep. 730. 
 
 2Wyman v. Ballard, 12 Mass. 304; Tufts v. Adams, 8 Pick. 547; 
 Funk v. Voneida, 11 Serg. & R. 112. 
 910
 
 CH. XXIII.] COVENANTS IN DEEDS. 623 
 
 the value of the property, which is occasioned by the enforce- 
 ment and exercise of the easement. 26 If the incumbrance be 
 an outstanding mortgage, or an attachment or execution or 
 municipal assessment, the purchaser need not wait for the 
 enforcement of these liens; he may proceed at once to satisfy 
 them, and then recover of the grantor on his covenant against 
 incumbrances the expenses incurred in extinguishing the 
 mortgage or removing the attachment, 27 provided the sum so 
 paid does not exceed the purchase price of the land : or if he 
 is evicted before suit is brought on the covenant, he may re- 
 cover the consideration paid with interest. 28 And where dam- 
 ages are recovered in satisfaction of the breach of the cove- 
 nant of seisin, or against incumbrances, by an actual eviction, 
 the grantor is remitted to his title to the land, and the grantee 
 is estopped from claiming any rights in the same under his 
 deed. 29 The courts, although uniform in their decisions as 
 to the measure of damages in actions upon the covenants of 
 seisin and against incumbrances, are divided as to the proper 
 rule to be applied to the covenants for quiet enjoyment and 
 of warranty. The majority of the courts, following the prin- 
 ciple of the ancient feudal warranty, hold that the true 
 measure of damages is the consideration paid, and interest to 
 date of eviction or of the judgment. Such is the rule in 
 
 v 
 
 2 Haynes- v. Young, 36 Me. 557 ; Lamb r. Danforth, 59 Me. 322, 8 
 Am. Rep. 426 ; Harlow v. Thomas, 15 Pick. 66 ; Batchelder v. Sturgis, 3 
 Cush. 301; Foster v. Foster, 62 N. H. 46; Smith v. Davis (Kan.), 24 
 Pac. Rep. 428. See, McBride v. Burns (Texas), 88 S. W. Rep. 394. 
 
 27 Delavergne v. Morris, 7 Johns. 358 ; Estabrook v. Smith, 6 Gray 
 572; Johnson v. Collins, 115 Mass. 892; Funk v. Voneida. 11 Serg. & 
 R. 113; Stambaugh V, Smith, 23 Ohio St. 584; Richard v. Bent, 59 111. 
 38, 14 Am. Rep. 1 ; Eaton v. Lyman, 30 Wis. 41 ; PetrLe v. Folz, 54 N. 
 Y. Super. 223; Hartshorn v. Cleveland (N. J.), 19 Atl. Rep. 974; Col- 
 lier v. Cowger, 52 Ark. 322, 12 S. W. Rep. 702; Bradshaw v. Crosby 
 (Mass.), 24 N. E. Rep. 47. See McCrillis v. Thomas (Mo. 1905), 85 
 S. W. Rep. 673. 
 
 28 Chapel v. Bull, 17 Mass. 213; Blanchard v. Ellis, 1 Gray 195; 
 Lambert v. Estes, 99 Mo. 604, 13 8. W. Rep. 284. 
 
 29 Porter v. Hill, 9 Mass. 34; Blanchard v. Ellis, 1 Gray 195; Kin- 
 caid v. Brittain, 5 Sneed 124. 
 
 911
 
 626 COVENANTS IN DEEDS. [PART III. 
 
 England, the United States courts, and in Arkansas, Cali- 
 fornia, Georgia, Indiana, Iowa, Kentucky, Missouri, Mary- 
 land, Nevada, New Hampshire, New Jersey, New York, North 
 Carolina, Ohio, Pennsylvania, Tennessee, Virginia and Wis- 
 consin. 30 But in Connecticut, Vermont, Maine and Massa- 
 chusetts the covenant is treated as one of indemnity, and the 
 measure of damages is taken to be the value of the land at 
 the time of eviction. 31 If the outstanding title is bought in, 
 the price paid for the same is the true measure of damages 
 for the breach of the warranty. 32 In the case of breach of 
 any one of the covenants of title, the covenantee can recover 
 as damages all costs which are assessed against the covenantee 
 as defendant of the title to the land. 33 But he cannot re- 
 cover the costs of a suit which resulted in his favor. 34 
 
 626. What covenants run with the land. In order that a 
 covenant may run with the land, and bind the assignees, it 
 must bear an intimate relation with and concern the estates or 
 lands conveyed. It runs with the land, so as to bind the cove- 
 nantor's assignees, when the performance of it is expressly 
 
 so Foster v. Thompson, 41 N. H. 379; Lewis V. Campbell, 8 Taunt. 
 715; Mack v. Patching 42 N. Y. 167, 1 Am. Rep. 506; McGarry v. 
 Hastings, 39 Cal. 360; Crisfield V. Storr, 36 Md. 150; Terry v. Diaben- 
 statt, 68 Pa. St. 400; Hopkins V. Lee, 4 Wheat. 118; Williams r. Beek- 
 man, 2 Dev. 483; Penne v. Duval, 9 B. Mon. 49; Lambert ' V. Estes, 99 
 Mo. 604, 13 S. W. Rep. 384 ; Boyer v. Amet, 41 La. An. 721, 6 So. Rep. 
 734; Collier v. Cowger 52 Ark. 322, 12 S. W. Rep. 702; McGuffey v. 
 Humes, 85 Tenn. 26, 1 -S. W. Rep. 506. Interest is not recoverable if 
 a judgment for mesne profits has not been recovered of the covenantee. 
 Collier v. Cowgill, 52 Ark. 322, 12 S. W. Rep. 702. 
 
 si Lamb V. Danforth, 5P Me. 322, 8 Am. Rep. 426 ; Downer V. Smith, 
 38 Vt. 464; Horsford v. Wright, Kirby 3; Smith V. Strong, 14 Pick. 
 128; Bledsoe v. Beiler, 66 Texas 437, 1 S. W. Rep. 164. 
 
 32 Petrie v. Folz, 544 N. V. Super. Ct. 223 ; Clapp V. Herdman, 25 111. 
 App. 509. 
 
 ssMcAlester v. Landers, 74 Cal. 79, 11 Pac. Rep. 505. 
 
 S* Smith v. Parsons, 33 W. Va. 644, 11 S. E. Rep. 68. "Attorney's 
 fees paid in defense of the title cannot be recovered as a part of the 
 damages in an action for biwch of warranty." Gates v. Field (Tex. 
 Civ. App. 1905), 85 S. W. Rej- 52. 
 912
 
 CH. XXin.] COVENANTS IN DEEDS. 626 
 
 or by implication made a charge upon the land. 35 On the 
 other hand, the covenants will run with the land so as to be 
 enforceable by the successive assignees of the land, when the 
 performance of the covenant affects the value of the land. 
 Thus, covenants for quiet enjoyment, and of warranty, run 
 with the land. 36 So also a covenant that the grantor shall 
 not erect and maintain structures upon an adjoining lot, or 
 erect another mill-site on some stream. 37 In order that a 
 covenant may run with the land there must be a privity of 
 
 as Thus, for example, covenants of rent, or for the payment of any 
 other sum which is made a charge upon the land. Hurst v. Rodney, 
 1 Wash. 375; Sandwith r. De Silver, 1 Browne (Pa.) 221; Astor V. 
 Miller, 2 Paige 68; Van Rensselaer v. Dennison, 35 N. Y. 393; Worth- 
 ington v. Hewes, 19 Ohio St. 67; Thomas v. Von Kapff, 6 Gill & J. 
 372; Conduit t'. Ross, 102 Ind. 166; Martin r. Martin (Kan.), 24 Pac. 
 Rep. 418. See ante, Sec. 147. Covenants, not to use the land, or only 
 to use it, in the specified manner. Barron i\ Richards, 3 Edw. Ch. 
 96; s. c. 8 Paige 351; St. Andrews Church Appeal, 67 Pa. St. 512; Win- 
 field v. Henning, 21 N. J. L. 188; Jeter V. Glenn, 9 Rich. L. 374; 
 Thomas v. Poole, 7 Gray 83; Clement v. Burtis (N. Y.), 24 N. E. Rep. 
 1013; Graves v. Deterling, 120 N. Y. 447, 24 N. E. 655. See ante, Sec. 
 433. A covenant to maintain fences, or other structures, or to permit 
 the enjoyment of any other easement. Bronson v. Coffin, 108 Mass. 
 175; Duffy V. N. Y., etc., R. R., 2 Hill 496; Brewer v. Marshall, 18 N. 
 J. Eq. 337 ; Norfleet v. Cromwell, 64 N. C. 1 ; Walsh r. Barton, 24 Ohio 
 St. 28 ; Nye v. Hoyle, 120 N. Y. 195, 24 N. E. Rep. 1 ; Pittsburg, etc., 
 R. R. Co. v. Reno, 22 111. App. 470; s. c. 123 111. 273, 14 N. E. Rep. 195; 
 Midland Ry. Co. v. Fisher (Ind.), 24 N. E. Rep. 756, 758; Avery v. 
 N. Y. Cent., etc., R. R. Co. (N. Y.), 24 N. E. Rep. 20, 24. Covenant 
 for improvements. Bailey v. Richardson, 66 Cal. 416. But an execu- 
 tory covenant to erect a party-wall will not run with the land, so as 
 to hind the assignees of the covenantor. Cole r. Hughes, 54 N. Y. 444, 
 13 Am. Rep. 611. See Miller v. Noonan, 83 Mo. 343. 
 
 3 Wilder v. Davenport, 58 Vt. 642. But see, Cemousky v. Fitch 
 (Iowa 1903), 96 N. W. Rep. 754. 
 
 37 Trustees of Watertown v. Cowen, 4 Paige 510; Norman v. Wells, 
 17 Wend. 136; Dailey v. Beck, Bright 107; Brew r. Van Denman, 6 
 Heiak. 433. To the same effect see Norcross v, James, 140 Mass. 188 ; 
 Maxon v. Lane, 102 Ind. 364; Lewis v. Ely, 92 N. Y. S. 705, 100 App. 
 Div. 252. 
 
 58 913
 
 627 COVENANTS IN DEEDS. [PART III. 
 
 estate between the covenantor and covenantee. 38 And it can 
 only be assigned with the land. 39 Where the land consists of 
 several parcels, or the land is divided up into parcels, and 
 they are conveyed to different grantees, the covenant is di- 
 vided up among them, and each may sue or be sued on his 
 portion of the covenant. 40 
 
 627. When breach of covenant works a forfeiture of estate. 
 - The breach of a covenant running with the land will not of 
 itself work a forfeiture of the estate, to which it is annexed. 
 The breach only gives rise to a personal action for damages on 
 the covenant, or an equitable action for its enforcement. 
 But it may by express limitation be made to operate as a con- 
 dition as well as a covenant. In such a case, the breach of the 
 covenant is a breach of a condition subsequent, and the 
 grantor may re-enter. Where the forms of expression usual 
 in the creation of a condition, such as "on condition," "pro- 
 vided always," and the like, are employed, nothing further is 
 needed to give the covenant the character and force of a con- 
 dition. But generally, if other words are used, it is neces- 
 sary that the covenant should contain a clause of forfeiture, 
 or the reservation of a right of entry upon the breach of the 
 covenant, in order that the breach may work a forfeiture of 
 the estate. 41 
 
 as Morse v. Aldrich, 19 Pick. 449; Cole v. Hughes, 54 N. Y. 444, 13 
 Am. Rep. 61 1 ; Kirkpatrick V. Peshine, 24 N. J. Eq. 206. 
 
 3 Wilson v. Wiedenham, 51 Me. 566; Randolph V. Kinney, 3 Rand. 
 394 ; Nesbit V. Brown, 1 Dev. Eq. 30 ; Martin v. Gordon, 24 Ga. 533. 
 
 >Astor v. Miller, 2 Paige 68; Johnson v. Blydenburg, 31 N. Y. 427. 
 
 " Rawson v. Uxbridge, 7 Allen 125; Chapin v. Harris, 8 Allen 594; 
 Ayer V. Emery, 14 Allen 69; Packard v. Ames, 10 Gray 325; Moore V. 
 Pitts, 53 N. Y. 85 ; Walters v. Breden, 70 Pa. St. 235 ; Supervisors, etc., 
 v. Patterson, 56 111. 119; Board, etc., v. Trustees, etc., 63 111. 204. See 
 Parsons v. Miller, 18 Wend. 564; Emerson v. Simpson, 43 N. H. 475; 
 Sharon Iron Co. V. Erie, 41 Pa. St. 341; Gadberry v. Sheppard, 27 Miss. 
 203. See, also, ante, Sec. 201, n. For conditional grant of public lands, 
 by Congress for railroad purposes, see, Oregon R. R. v. Quigley ( Idaho 
 1905), 80 Pac. Rep. 401. 
 914
 
 CHAPTER XXIV. 
 
 TITLE BY DEVISE. 
 
 SECTION 628. Definition and historical outline. 
 
 629. By what law are devises governed. 
 
 630. The requisites of a valid will. 
 
 631. A sufficient writing. 
 
 632. What signing is necessary. 
 
 633. Proper attestation, what is. 
 
 634. Who are competent witnesses. 
 
 635. Who may prepare the will Holographs. 
 
 636. What property may be devised. 
 
 637. A competent testator, who is. 
 
 638. Who may be devisees What assent necessary. 
 
 639. Devisee incapacitated by murder of testator. 
 
 640. Devisee and devise must be clearly denned Parol evi- 
 
 dence. 
 
 641. Devisees of charitable uses. 
 
 642. Lapsed devises What becomes of them. 
 
 643. Revocation of wills. 
 
 644. Joint or mutual wills. 
 
 645. Revocation by destruction of will. 
 
 646. Effect of alterations of will after execution. 
 
 647. Revocation by marriage and issue. 
 
 648. Revocation by alteration or exchange of property. 
 
 649. Revocation' by subsequent will or codicil. 
 
 650. Defective will confirmed by codicil. 
 
 651. Contingent wills. 
 
 652. Probate of will. 
 
 653. Agreements as to testamentary disposition of property. 
 
 628. Definition and historical outline. A title by devise 
 is that title to lands which is created by will. The term 
 "devise" is properly applicable only to real estate. The 
 transfer by will of personal property, or of chattel interests, 
 in real property, is called a bequest. A will is an instrument 
 of conveyance, by which the testator undertakes to direct 
 
 915
 
 C28 TITLE BY DEVISE. [PART III. 
 
 the disposition of his property after his death. 1 It has al- 
 ways been possible at common law to make a testamentary dis- 
 position of personal property. Under the Saxon laws lands 
 were devisable as freely as they were alienable ; but upon the 
 Conquest of England by the Normans, the same policy which 
 dictated the deprivation of the right of alienation called for 
 the abolition of the right to dispose of lands by will. Ac- 
 cordingly, lands could not, after the Norman Conquest, be 
 devised. But upon the introduction of the "doctrine of uses 
 means were discovered, whereby such a disposition could be 
 made It will be remembered that, in formulating the law of 
 use&, courts of equity only adopted those rules governing 
 legal estates which were conformable to the policy of the 
 court in respect to uses. Hence they declared that uses were 
 devisable, although the legal estates which supported them 
 were not. When the Statute of Uses was passed, the use be- 
 came United to the legal estate, and this mode of devising 
 lands was taken away. But in connection with uses there 
 had been developed the doctrine of powers, whereby one could 
 convey lands to the use of whomever the grantor should ap- 
 point by will. The appointee would take, not by force of 
 the will, but under the deed of conveyance. 2 And after the 
 passage of the Statute of Uses, as soon as he was appointed 
 by the will of the grantor, the use thereby created and vest- 
 ing in him was immediately executed by the statute, and he 
 acquired the legal estate as effectually as if the lands could 
 have been devised directly to him. Mr. Washburn states that 
 the effect of the Statute of Uses "was to destroy the power 
 of devising lands by the way of uses; and they accordingly 
 became undevisable, and remained so until the Statute of 
 Wills. ' ' 3 This is true, so far as the power to devise a vested 
 use is concerned. But a power of appointment by will was 
 
 1 Bunyan v. Bigelow (Conn. 1905), 60 Atl. Rep. 266; In re Davis 
 Will, 92 N. Y. S. 968, 45 Misc. 554. 
 
 2 See ante, Sec. 403. 
 
 33 Washburn on Real Prop. 501, 502. 
 916
 
 CH. XXIV.] TITLE BY DEVISE. 629 
 
 not affected by the statute. The use created by the exercise 
 of the power is contingent until the power is exercised, and 
 hence the statute could not operate upon it, so as to destroy 
 the power to make a devise in this way. At any rate, such a 
 disposition could be made before the Statute of Uses, and it 
 has universally been recognized as an effective mode of dispo- 
 sition since the Statute of Wills, and independent of the 
 latter statute. Furthermore, no reason has been, or can be, 
 assigned why it was not just as effective between the enact- 
 ments of the Statute of Uses and the Statute of -Wills, which 
 was enacted in the 32 and 34 Hen. VIII, which expressly en- 
 abled the proprietors of lands to dispose of their legal estates, 
 without resorting to the indirect mode of creating a power of 
 appointment. The effect of the Statute of Wills, and of 
 similar ones passed in the different States of the American 
 Union, constitutes the subject of this chapter. 
 
 629. By what law are devises governed. Like all other 
 legal questions arising in respect to the rights in, or issuing 
 out of, lands, the legality and effect of devises are governed 
 by the law of the place where the land is situated, the lex loci 
 rei sitce. In determining, therefore, the validity of a will of 
 real property, the place where the will happens to be made 
 is of no importance. The provisions of the lex loci rei alone 
 govern.* And if an invalid will is executed before the enact- 
 ment of a law which makes such wills valid, and the testator 
 dies subsequent to such enactment, the latest enactment will 
 
 < Story Confl. Laws, Sec. 474; 4 Kent's Com. 513; 1 Redf. on Wills 
 387; Kerr v. Moon, 9 Wheat. 565; U. S. v. Crosby, 7 Cranch 115; 
 Bascom v. Albertson, 34 N. Y. 584; Morrison v. Campbell, 2 Rand. 200; 
 Halman v. Hopkins, 27 Texas 38; Swearingen v. Morris, 14 Ohio St. 
 424; Johnson v. Copeland, 35 Ala. 521; Richards v. Miller, 62 111. 
 417; Cornplison f. Browning, 10 B. Mon. 425; Morris f. Harris, 15 
 Cal. 226; Castens v. Murray (Ga. 1905), 50 S. E. Rep. 131; Succession 
 of Haslintz (La.), 38 So. Rep. 174; Coy v. Goze (Tex.), 84 S. W. Rep. 
 441; Haggart v. Ranney (Ark.), 84 S. W. Rep. 703. 
 
 917
 
 631 TITLi: BY DEVISE. [PART III. 
 
 govern the validity of the will. 5 But in respect to the inter- 
 pretation of a will, since the object of all efforts at interpre- 
 tation is to ascertain the intention of the testator, it seems to 
 be the established^ rule that the law of the domicile in force 
 at the making of the will will govern, unless the testator ap- 
 pears to have had the provisions of the lex loci in mind. 6 
 The lex loci rei sitce governs chattel interests in lands as well 
 as in real estate. Leaseholds are, therefore, governed by that 
 law. 7 
 
 630. The requisites of a valid will. The following may 
 be mentioned as the principal requisites of a will: A suf- 
 ficient writing, proper attestation, subject-matter, a compe- 
 tent testator, a competent devisee. 
 
 631. A sufficient writing. The statute 32 Hen. VIII 
 empowers the holders of lands to dispose of them by their last 
 will and testament in writing. No particular form of instru- 
 ment is prescribed, and none is required, provided the words 
 and forms of expression used sufficiently indicate the inten- 
 tion to make a will, and describe clearly the property upon 
 which the will is to operate and the person to whom it shall 
 go. 8 A will is valid, if properly signed and attested, al- 
 though it is written in a language which the testator did not 
 understand. 9 Words of transfer are of course needed in 
 
 sLearned's Estate, 70 Cal. 140, 11 Pac. Rep. 587; Yocum v. Porter, 
 134 Fed. Rep. 205. 
 
 2 Greenl. on Ev., Sec. 671; Story on Confl., Sec. 479 h. But see, 
 Brigham V. Bert Hospital (Mass. 1904), 134 Fed Rep. 513. 
 
 T Thompson v. Adv.-Gen., 12 Cl. & Fin. (H. L. Cas. 1) ; Freke v. Car- 
 berry, L. R. 16 Eq. 461. 
 
 sKnox's Appeal, 131 Pa. St. 220, 18 Atl. Rep. 1021; Fellman's Admr. 
 v. Landis, 131 Pa. St. 573, 18 Atl. Rep. 941. "The form of the at- 
 testing clause of a will is not material; the signature of the witnesses 
 being all that is necessary under Burns' Ann. St. Ind. 1901, Sec. 2746." 
 Barricklow V. Stewart (Ind. 1904), 72 N. E. Rep. 128. 
 
 Walter's Will, 64 Wis. 487, 54 Am. Rep. 640. In re Graham's Will, 
 109 N. Y. S. 122. It is not essential that the witnesses should under- 
 918
 
 CH. XXIV. j TITLE BY DEVISE. 631 
 
 order to indicate the intention of disposing of the property. 
 But while it is proper and customary to employ the verbs 
 1 'devise," in the case of real property, "bequeath" in the 
 case of personal property, and "give" in the case of either 
 kind of property, yet these words have no technical signifi- 
 cation, and any other words of transfer, such as that the 
 property shall "go" or "be divided among," certain persons 
 will be equally effective. 10 And it has been held to be a good 
 devise by implication, in the absence of any words of direct 
 transfer or gift, where the will makes no other disposition of 
 the property, and provides by a codicil for a limitation over, 
 on failure of issue of his children, of the estate "above de- 
 vised to them." 11 Indeed, an instrument in the form of a 
 deed, has been held to operate as a will. 12 The same instru- 
 ment may be held to be partly a deed and in other respects a 
 will. 13 The presumption, however, is against an instrument, 
 in form a deed, operating as a will. Where it appears to 
 have been the intention that the instrument shall operate as 
 a deed, it cannot take effect as a will, although it may be ab- 
 solutely void as a deed. And it is incumbent upon the party 
 claiming under the instrument to show that it was executed 
 animo testandi. 1 * The intention may be ascertained either, 
 
 stand the contents of the will. Roche t>. Nason, 93 N. Y. S. 565. For 
 will of a German, written in English, see, Gerbrich V. Freitag, 213 111. 
 552, 73 N. E. Rep. 338. 
 
 lOKeaney v. Keaney (Md.), 18 Atl. Rep. 1105. 
 
 "Ferguson f. Thomasson (Ky.), 9 S. W. Rep. 714. 
 
 12 Manly V. Lakin, 1 Hagg. 130; Henderson v. Farbridge, 1 Russ. 479; 
 Frederick's Appeal, 52 Pa. St. 338; Wagner v. McDonald, 2 Harr. & 
 J. 346; Ingram v. Porter, 4 McCord 198; Wheeler v. Durant, 3 Rich. 
 Eq. 452; Hall v. Bragg, 28 Ga. 330; Gillham v. Mustin, 42 Ala. 365; 
 Wall v. Wall, 30 Miss. 91; Allison v. Allison, 4 Hawks 141; Stevenson 
 V. Huddlestone, 13 B. Mon. 299; Millican v. Millican, 24 Texas 426; 
 Burlington University v. Barrett, 22 Iowa 60; In re Lantenschloger's 
 Estate (Mich.), 45 N. W. Rep. 147. 
 
 is Jacks v. Henderson, 1 Desau. 543; Watkins v. Dean, 10 Yerg. 321; 
 Taylor v. Kelly, 31 Ala. 59. 
 
 "Combs V. Jolly, 3 N. J. Eq. 025; Collins r. Townley, 21 N. J. Eq. 
 353; Rohrer v. Stehman, 1 Y.V.li; <:2j To.'d's Will, 2 Watts & S. 
 
 919
 
 (531 TITLE BY DEVISE. [PART III. 
 
 when it is expressed on the face of the instrument, from 
 the undertaking to dispose of property, after death, in such 
 a manner that the instrument cannot take effect as a deed, or 
 by parol evidence, where there is no* expression of intent, and 
 it is doubtful on the face of the instrument in what manner 
 the donor intended the instrument to operate. The admissi- 
 bility of parol evidence may be a disputed point; and, cer- 
 tainly where it is possible, the intention must be gathered 
 from the contents of the whole instrument. 15 It is not neces- 
 sary that the will or any part of it should be actually writ- 
 ten. Printing, engraving and lithographing are held to be 
 equivalent to writing, and to satisfy the requirement of the 
 Statute of Frauds. 16 It is, likewise, not necessary that the 
 will be w r ritten in ink. A valid will may be written in pen- 
 cil. 17 But where the will is written partly in ink, partly in 
 pencil, and partly printed, and the writing in ink made sense 
 with the printed matter, and appeared to be a complete will 
 
 145; Frew v. Clark, 80 Pa. St. 170; Fort v. Fort, 3 Dev. L. 19; Luke v. 
 Dyches, 2 Strobh. Eq. 353; Brunson v. King, 2 Hill (S. C.) Ch. 483; 
 Allison v. Allison, 4 Hawks 141; Phipps v. Hope, 16 Ohio St. 580. See 
 Beebe v. McKenzie (Oreg.), 24 Pac. Rep. 236; White v. Hopkins, 80 
 Ga. 154; Anderson V. Brown, 72 Ga. 713; Peake v. Jenkins, 80 Va. 
 293; Seals r. Pierce, 83 Ga. 787, 10 S. E. Hep. 589; Diefendorf v. 
 Diefendorf, 8 N. Y. S. 617; Chavez v. Chavez (Texas), 13 S. W. Rep. 
 1018. '' The primary distinction between wills and declarations of 
 trust is that a will takes effect in the future, while the declaration of 
 trust takes effect in prcesenti, during the life of the settlor." Robb v. 
 Washington and Jefferson College, 93 N. Y. S. 92. 
 
 is See McGee v. McCants, 1 McCord 517; Tappan f. Diblois, 45 Me. 
 122; Wright v. Barrett, 13 Pick. 41; Lythe -f. Beveridge, 58 N. Y. 
 592; Provost f. Provost, 27 N. J. Eq. 296; Barker's Appeal, 72 Pa. St. 
 420 ; Bowly v. Lamont, 3 Harr. & J. 4 ; Paiker r. Wasley, 9 Gratt. 477 ; 
 Gillis f.. Harris, 6 Jones Eq. 267; Sorsby r. Vance, 36 Miss. 564; Jack- 
 son V. Hoover, 26 Ind. 511; Johnson r. M. E. Church, 4 Iowa 180. See 
 McLain v. Garrison (Tex. 1905), 88 S. W. Rep. 484. 
 
 iCrenshaw r. Foster, 9 Pick. 312; Temple f. Mead, 4 Vt. 535. 
 
 "Kell V. Charmer, 23 Beav. 195; Lucas v, James, 7 Hare 419; Myers 
 v. Vanderbilt, 84 Pa. St. 510; Philbrick r. Spangler, 15 La. An. 46: 
 Itnox's Appeal, 131 Pa. St. 220, 18 Atl. Rep. 1020. 
 
 920
 
 CH. XXIV.] TITLE BY DEVISE. 632 
 
 / 
 
 without the aid of the pencil writing, it was held that the 
 writing in pencil constituted no part of the will. 18 
 
 632. What signing is necessary. The English Statute of 
 Wills only required that the will should be in writing, and 
 did not make it necessary for the testator to sign or to sea 1 
 the instrument. And, although it may be customary in some 
 localities to seal a will, it has never been considered a requisite 
 to the validity of the will, and is not necessary except in Ver- 
 mont and New Hampshire. 10 But the Statute of Frauds of 
 Chas. II, and the American Statutes of Wills generally, pro- 
 vide that the will shall be signed or subscribed by the testa- 
 tor. If the statute requires it to be signed, the signature of 
 the testator in any part of the instrument will be a sufficient 
 signing. But if the statute requires it to be subscribed, the 
 testator must sign his name at the bottom or end of the will. 2 " 
 If the testator is unable to write he may make his mark, and 
 this mark alone will be a proper signing of the will, although 
 it is customary for some one, usually an attesting witness, to 
 write his name around or about the mark. 21 In Missouri, if 
 the name is written by some one, it must be an attesting wit- 
 ness, and the attestation clause must contain a statement that 
 the testator's name was signed at his request. 22 In the same 
 manner some one may guide his hand in writing his name 
 
 i" In re Adams, L. R. 2 P. & D. 367. See, also, Bryan v. Bigelow 
 (Conn.), 60 All. Rep. 266. 
 
 i 3 Washburn on Real Prop. 507. See Piatt v. McCullough, 1 Mc- 
 Lean 69; Williams V. Burnett, Wright 53; Padfield v. Padfield, 72 111. 
 322. For abolition of necessity of private seals in Missouri, see Sess. 
 Laws, 1891, p. 248. 
 
 20 Warwick V. Warwick (Va.), 10 S. E. Rep. 843; In re Bugler's 
 Will, 47 Hun 127; Frazier's Estate, 8 Pa. Co. Ct. 306. See, In re 
 Seaman's Est. (Cal. 1905), 80 Pac. Rep. 700; Irwin v. Jackes (Ohio), 
 73 N. E. Rep. 683. 
 
 21 Taylor v. Dening, 3 Nev. & P. 228; 8. c. nom. Baker v. Dening, 8 
 Ad. Ell. 94 ; Stevens v. Van Cleve, 4 Wash. C. Ct. 262 ; Van Hanswyck 
 v. Wiese, 44 Barb. 494; Jackson v. Jackson, 39 N. Y. 153; Maine v. 
 Ryder, 84 Pa. St. 217; St. Louis Hospital V. Williams, 19 Mo. 609. 
 
 v. Porter, 14 Mo. 611; Northcutt v. Northcutt, 20 Mo. 266. 
 
 921
 
 633 TITLE BY DEVISE. [PART III. 
 
 or making his mark, when he is too weak from disease to 
 write without assistance, and he requests such assistance. 23 
 The courts go still further and hold that where the testator, 
 through his feebleness, is unable to handle the pen, he may 
 request another to sign his name for him, and such signature 
 will be a good signing of the will, without any mark by the 
 testator. 24 
 
 633. Proper attestation, what is. The English Statute of 
 Frauds required the execution of the will to be attested and 
 subscribed by three or four competent and credible witnesses. 
 This general provision is adopted in all the States, but the 
 number of witnesses required varies. In Connecticut, Dis- 
 trict of Columbia, Florida, Georgia, Maine, Maryland, Massa- 
 chusetts, Mississippi, New Hampshire, New Mexico, South 
 Carolina and Vermont, three witnesses are required ; while two 
 are sufficient in Alabama, Arkansas, California, Colorado, 
 Daltota, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, 
 Kentucky, Michigan, Minnesota, Missouri, Montana, Ne- 
 braska, Nevada, New Jersey, New York, North Carolina, 
 Ohio, Oregon, Rhode Island, Tennessee, Texas, Utah, Vir- 
 ginia, "West Virginia, and Wisconsin. 25 Witnesses to a will 
 are required to do more than witnesses to a deed. The latter 
 
 23 Wilson V. Beddard, 12 Sim. 28 ; Sprague v. Luther, 8 R. I. 252 ; 
 Nickerson v. Buck, 12 Gush. 332; Jackson v. Van Duysen, 5 Johns. 144; 
 Chaffee v. Baptist M. C., 10 Paige Ch. 85; Cozzen's Will, 61 Pa. St. 196; 
 Ray v. Hill, 3 Strobh. 297; Upchurch v. Upchurch, 16 B. Mon. 102. 
 " The validity of a will duly signed at its close is not affected by the 
 fact that a codicil thereto is not signed." Ward . Putnam (Ky. 1905), 
 85 S. W. Rep. 179, 27 Ky. Law Rep. 367. 
 
 a* Assay v. Hoover, 5 Pa. St. 21; Main v. Ryder, 34 Pa. St. 217; 
 Robins v. Coryell, 27 Barb. 550; Rosser v. Franklin, 6 Gratt. 2; Arm- 
 strong v. Armstrong, 29 Ala. 538; Simpson V. Simpson, 27 Mo. 288; 
 Will of Jenkins, 43 Wis. 610; Poole v. Buffum, 3 Oreg. 438. 
 
 251 Jarm. Wills (5 Am. ed.) 198, Am. note. "A will with only 
 two witnesses is absolutely void as a muniment of title to realty in 
 this State, and a judgment of probate cannot give it any validity." 
 Janes v. Dougherty (Ga. 1905), 50 S. E. Rep. 954. See also McLain v. 
 Garrison, 88 S. W. Rep. 414. 
 922
 
 CH. XXIV.] TITLE BY DEVISE. 633 
 
 are only called upon to witness the execution of the deed. 
 But witnesses to a will are made judges of the competency 
 of the testator, and in any subsequent litigation over the will, 
 involving the question of the capacity of the testator, they 
 are in effect expert witnesses, and can give their opinion of 
 the testator's mental capacity. 26 It is, therefore, generally 
 held that the testator must publish his will, i. e., declare to 
 the witnesses that the instrument before them is his last will 
 and testament, and without some such declaration the will 
 will be void. 27 To make a valid publication, the will must at 
 the time be complete in all its parts. 28 Although the testator 
 need not sign in the presence of the witnesses, 29 they must 
 
 20 1 Greenl. on Ev., Sec. 440; Field's Appeal, 36 Coftn. 277; White- 
 nack v. Stryker, 2 N. J. Eq. 9; Heyward v. Hazard, 1 Bay 335; Roche 
 v. Nason, 93 N. Y. S. 365; Gessell v. Bougher (Md. 1905), 60 Atl. Rep. 
 481. " In a will contest on the ground of want of testamentary ca- 
 pacity, opinions as to testator's capacity at a time prior to the execu- 
 tion of the will are competent." In re Glass' Estate (Iowa 1905), 103 
 N. W. Rep. 1013; Glass v. Glass, Id. 
 
 27 See Cilley v. Cilley, 34 Me. 162; Ela V. Edwards, 16 Gray 91; 
 Brinckerhoff r. Remsen, 26 Wend. 325 ; Rutherford v. Rutherford, 1 
 Denio 33; Gilbert r. Knox, 52 N. Y. 125; Transue v. Brown, 31 Pa. St. 
 92; Compton r. Mitton, 12 N. J. L. 70; Sutton V. Sutton, 5 Harr. 459; 
 Beane V. Yerby, 12 Gratt. 239; Verdier V. Verdier, 8 Rich. 135; Up- 
 church v. Upchurch, 16 B. Mon. 102; Brown r. McAllister, 34 Ind. 
 375; Dickie 17. Carter, 42 III. 376; Buntin V. Johnson, 28 La. An. 796; 
 Porteus v. Holm, 4 Dem. 14; In re Daje's Will, 56 Hun 169, 9 N. Y. S. 
 396; Luper v. Wertz (Or.), 23 Pac. Rep. 850. In Georgia and Penn- 
 sylvania there seems to be no necessity of a publication. Webb v. 
 Fleming, 30 Ga. 808; Loy v. Kennedy, 1 Watts & S. 396. But see Tran- 
 sue f. Brown, supra. 
 
 28 Barnes v. Syester, 14 Md. 507; Waller v. Waller, 1 Gratt. 454; 
 Jones v. Jones, 3 Mete. (Ky.) 266; Chisholm's Heirs v. Ben, 7 B. 
 Mon. 408. 
 
 29 Provided he acknowledges his signature and requests them to at- 
 test it. Smith v. Codron, 2 Ves. 455; Tilden v. Tilden, 13 Gray 103; 
 Mickerson V. Buck, 12 Cush. 332; Adams V. Field, 21 Vt. 256; Tarrant 
 V. Ware, 25 N. Y. 425; Baskin v. Baskin, 36 N. Y. 416; Will of Als- 
 paugh, 23 N. J. Eq. 507; Rosser v. Franklin, 6 Gratt. 1; Tucker v. 
 Oxner, 12 Rich. L. 141; Thompson v. Davitte, 59 Ga. 472; Upchurch 
 17. Upchurch, 16 B. Mon. 102; Allison v. Allison, 46 111. 61; Welch v. 
 
 923
 
 633 TITLE BY DEVISE. [PART III. 
 
 sign in his presence. 80 What is a sufficient "presence" is 
 governed largely by the circumstances. In determining this 
 question, there are only two elements to be considered : 
 First, were the witnesses at the time of signing so situated 
 that the testator could see them; and secondly, was he in a 
 conscious state. It is not necessary that the testator should 
 actually see the signing, if he was in a position to see it if 
 he wanted to. 31 Not only is this true, but if the testator is 
 blind, the will will be properly attested if the witnesses when 
 signing were in such a position, that the testator could have 
 seen them if he had had his sight. 32 And it is not even nec- 
 essary that the testator should be in the same room with the 
 witnesses. Attestation in a different room, although pre- 
 sumptively bad, will be good if the testator could see the per- 
 formance of the act of attestation. 33 And in some of the 
 
 Adams, 63 N. H. 344 ; In re Van Geison's Will, 47 Hun 5 ; In re Sim- 
 mons' Will, 7 N. Y. S. 352. The fact that testator does not see the 
 witnesses will not avoid the will. Healey v. Bartlett (N. H. 1904), 
 59 Atl. Rep. 617. 
 
 so Roberts r. Welch, 46 Vt. 164; Tappan r. Davidson, 27 N. J. Eq. 
 459; Parramore v. Taylor, 11 Gratt. 220; Watson f. Hipes, 32 Miss. 
 451; Cravens v. Falconer, 28 Mo. 19. Contra, Lyon v. Smith, 11 Barb. 
 124; Carroll V. Norton, 3 Bradf. 291; Abraham v. Wilkins, 17 Ark. 292. 
 " A paper not attested by two witnesses in the presence of the testa- 
 trix is not a will." Stanley v. Moss, 114 111. App. 612. 
 
 si Boldry v. Parris, 2 Cush. 433 ; Edelen v. Hardy, 7 Harr. & J. 1 ; 
 Nock c. Nock, 10 Gratt. 106; Bynum v. Bynum, 11 Ired. L. 632; 
 Reynolds v. Reynolds, 1 Speers 253; Wright v. Lewis, 5 Rich. 212; 
 Lamb v. Girtman, 33 Ga. 289; Rucker v. Lambdin, 12 Smed. & M. 230; 
 Watson v. Pipes, 32 Miss. 451; Howard's Will, 5 B. Mon. 199; Ambree 
 v. Weishaas, 74 111. 109; Walker v. Walker (Miss.), 7 So. Rep. 491. 
 See Healey v. Bartlett (N. H. 1904), 59 Atl. Rep. 617. 
 
 32 In re Piercy, 1 Robt. 278 ; Lewis V. Lewis, 6 Serg. & R. 489 ; Weir 
 V. Fitzgerald, 2 Bradf. 42 ; Reynolds V. Reynolds, 1 Speers 253. 
 
 33 Newton v. Clarke, 3 Curt. 320; Lamb v. Girtman, 33 Ga. 289. See 
 also Sprague V. Luther, 8 R. I. 252; Neil V. Neil, 1 Leigh 6; Russell 
 v. Falls, 3 Harr. and McH. 457; Graham v. Graham, 10 Ired. L. 219; 
 Howard's Will, 5 B. Mon. 199; Ambree v. Weishaar, 74 111. 109; Galla- 
 gher v. Kilkeary, 29 111. App. 415. In one case attestation in a differ- 
 ent house was held to be sufficient, the testator being in a position to 
 
 924
 
 CH. XXIV.] TITLE BY DEVISE. 633 
 
 States it is also required that the witnesses shall sign in the 
 presence of each other. 34 But the general rule is that they 
 may sign at different times, and not in the presence of each 
 other, provided they all sign in the presence of the testator. 35 
 It is usual for the will to contain an attestation clause, con- 
 taining a declaration of all the acts done in compliance with 
 the statute, and which are necessary to the valid execution of 
 a will. No particular form, expression or words are necessary 
 to constitute an attestation, and even if the attestation clause 
 is omitted altogether the will will be good, for the meaning 
 of the witnesses' signatures may be established by parol evi- 
 dence. 36 But it is always advisable to insert a full and com- 
 plete attestation clause, for the declarations in the clause as 
 to the proper execution of the will raise a presumption that 
 the will was properly executed, and throws the burden of 
 proof to the contrary upon the party contesting the will. 37 
 Generally the witnesses must sign below the attestation clause 
 at the end of the will, and in New York and Kentucky this 
 is required by statute. 38 But the common law does not re- 
 quire the witnesses to sign in any particular place. 39 If the 
 
 see the act. Casson v. Code, 1 Bro. C. C. 99. See Cook V. Winchester 
 (Mich.), 46 N. W. Rep. 106. 
 
 s* Blanchard V. Blanchard, 32 Vt. 62. 
 
 ssQaylor's Appeal, 43 Conn. 82; Flinn v. Owen, 58 111. Ill; Hoff- 
 man v. Hoffman, 26 Ala. 535; Welch v. Adams, 63 N. H. 344; John- 
 son V. Johnson, 106 Ind. 475, 55 Am. Rep. 762; Grubbs v. Marshall 
 (Ky.), 13 S. W. Rep. 447; Powtucket v. Ballou, 15 R. I. 58. See 
 Roche v. Nason, 93 N. Y. S. 565; Standley v. Moss, 114 111. App. 612. 
 
 3 Hands t?. James, Comyn 531 ; Brice v. Smith, Willes 1 ; Hitch v. 
 Wells, 10 Beav. 84; Fry's Will, 2 R. I. 88; Cla v. Edwards, 16 Gray 
 91; Chaffee v. Baptist M. C., 10 Paige 85; Leaycraft v. Simmons, 3 
 Bradf. 35. See contra, Griffith v. Griffith, 5 B. Mon. 511. And see, gen- 
 erally, Osborn v. Cook, 11 Cush. 352; Jackson v. Jackson, 39 N. Y. 153; 
 Fatheree v. Lawrence, 33 Miss. 585. See Bannicklow v. Stewart (Ind. 
 1904), 72 N. E. Rep. 128. 
 
 3T Tappen v. Davidson, 27 N. J. Eq. 459. See Roche v. Nason, 93 N. 
 Y. S. 565. 
 
 B * Coffin v. Coffin, 23 N. Y. 9 ; Peck v. Gary, 27 N. Y. 9. 
 " In re Chamney, 1 Robt. 757; Roberts v. Phillips, 4 Ell. & Bl. 
 
 925
 
 634 TITLE BY DEVISE. [PART III. 
 
 will has not been properly attested it is, of course, inoper- 
 ative. But where a codicil is subsequently executed, properly 
 attested, confirming the prior defective will expressly or by 
 implication, it will cure the defect, and make the will oper- 
 ative from the date of the codicil. 40 
 
 634. Who are competent witnesses. Some of the State 
 statutes require the witnesses to be credible, and the others 
 that they shall be competent. But the two words in this con- 
 nection are used synonymously, and the same general rules 
 govern in all the States. 41 The meaning of this requirement 
 is that the witnesses must be circumstanced, that their testi- 
 mony in a court of justice will be competent to establish the 
 validity of the will. The three principal causes of incompe- 
 tency are mental imbecility, arising either from insanity or 
 tender age, the commission of crime, and the possession of an 
 interest in the operation of the will. The first two causes are 
 governed by the general rules of evidence, and are explained 
 in all treatises upon the law of evidence, and will need no 
 special elucidation here. The most common cause of in- 
 competency in respect to wills is that of interest. The com- 
 mon-law or old English statutory rule is that if a witness 
 to the will is interested in it as a legatee or devisee, the will 
 is void. 42 But now in most of the States it is provided by 
 statute that in such cases the will will be good, but the devise 
 or legacy to the witness will be void. In some of the States 
 the devise is declared absolutely void, 43 but generally the de- 
 
 450; Murray v. Murphy, 39 Miss. 214. Franks V. Chapman, 64 Texas 
 159. 
 
 40 Anderson V. Anderson, L. R. 13 Eq. 381; Mooers v. White, 6 Johns. 
 Ch. 360; Van Cortlandt v. Kip, 1 Hill 590; Harvey V. Chouteau, 14 Mo. 
 587. See post, Sec. 649. And see, Ward v. Putnam (Ky. 1905), 85 S. 
 W. Rep. 179. 
 
 41 In re Noble's Estate, 22 111. App. 535; Standley v. Moss, 114 111. 
 App. 612. 
 
 Giddings V. Turgeon, 58 Vt, 706; Elliott V. Brent, 6 Mackey 98. 
 Such is the law in Rhode Island, New York, New Jersey, North 
 926
 
 CH. XXIV.] - TITLE BY DEVISE. 631 
 
 vise is void only when there is not a sufficient number of wit- 
 nesses without the disqualified witness. 44 In others of the 
 States there is this further qualification, that where the 
 devisee receives no more by the will than he would have 
 been entitled to as heir if the testator had died intestate, he 
 is a competent witness. This rule is either laid down by stat- 
 ute, or is a consequence of the rule that where a devisee is 
 heir at law of the testator, and is not benefited by the will, 
 he takes as heir and not as devisee. 45 It is held in some of 
 the States that a witness, incompetent on account of interest, 
 may become competent by making an assignment or release of 
 his interest. 46 Not only is the witness incompetent where he 
 is himself a devisee, but he or she is likewise incompetent 
 where his wife or her husband, respectively, is a devisee. 41 " 
 But, although a different rule is 'observed in some of the 
 States, 48 it is generally held that an executor or trustee is not 
 
 Carolina, South Carolina, Georgia, Indiana, Ohio and Oregon. 1 Jar. 
 on Wills (5 Am. ed.), 189 Am. note. 
 
 4* This is the rule in Massachusetts, Michigan, Missouri, Minnesota, 
 New Hampshire, Nebraska, Virginia, Vermont, Wisconsin, Kentucky, 
 Kansas, Iowa, Illinois, Dakota, Connecticut, Colorado, California, West 
 Virginia and Arkansas. 1 Jar. on Wills (5 Am. ed.) 189, Am. note. 
 In New York the same rule has been adopted by the courts. Crom- 
 well V. Woolly, 1 Abb. Pr. 442. See O'Brien V. Banfield, 213 111. 428, 
 72 N. E. Rep. 1090. A witness to a will is not disqualified merely by 
 reason of the fact that such will appoints him as executor thereof. 
 Standley v. Moss, 114 111. App. 612. 
 
 *5 Jackson v. Denniston, 4 Johns. 311; Starr v. Starr, 2 Root 363; 
 Fortune v. Buck, 23 Conn. 1 ; Ackless v. Seekright, Breese 76 ; Croft V. 
 Croft, 4 Gratt. 103; Cannon V. Setzler, 6 Rich. 471; Rucker v. Lamb- 
 din, 12 Smed. & M. 230. 
 
 46 Kern v. Soxman, 16 Serg. & R. 315; Hans v. Palmer, 21 Pa. St. 
 296; Deakin v. Hollis, 7 Gill & J. 311; Shaffer v. Corbett, 3 Harr. & 
 McH. 513; Mixon v. Armstrong, 38 Texas 296. Contra, Allison v. Alli- 
 son, 4 Hawks. 141. 
 
 4TWinslow v. Kimball, 25 Me. 493; Sullivan v. Sullivan, 106 Mass. 
 474; Jackson v. Woods, 1 Johns. 163; Huie v. Gunter, 3 Jones L. 441; 
 Brayfield v. Brayfield, 3 Harr. & J. 208. 
 
 48 Gilbert v. Gilbert, 23 Ala. 529 ; Davis V. Rogers, .1 Houst. 44. But 
 see Hawley v. Brown, 1 Root 494 ; Vansant V. Boileau, I Binn. 444 ; 
 Gunter c. Gunter. 3 Jones L. 441; Filson v. Filson, 3 Strobh. 288. 
 
 U27
 
 635 TITLE BY DEVISE. 
 
 thereby incapacitated from acting as a witness to the will 
 which appoints him. 49 If the witness is competent at the 
 time of the attestation, it will not invalidate the attestation if 
 he subsequently becomes incompetent from any cause. He is 
 only required to be competent when he attests the will. 50 A 
 codicil, being nothing more than a supplementary will, in 
 order to be valid, requires the same formality of attestation. 51 
 
 635. Who may prepare the will Holographs. As a 
 general proposition, there is no restriction as to the person 
 who may prepare and write the will, and the same may be 
 written either by the testator or some other person at his 
 request. When the will is in the testator's own hand- 
 writing it is called a holograph, and in Arkansas, Ken- 
 tucky, Tennessee, Texas^ Virginia, North Carolina, Missis- 
 sippi and Louisiana it is provided by statute that no 
 witnesses are required to attest such wills. 62 A will drawn 
 up by the devisee will, nevertheless, be good. But a suspicion 
 is cast upon the validity of the will, and it requires stronger 
 evidence in such cases to rebut the charge of undue influence. 
 If the testator is of feeble mind at the time, and is notoriously 
 under the influence of this devisee, the will would in ordinary 
 
 "Milay V. Wiley, 46 Me. 230; Wyman V. Symmes, 10 Allen 153; 
 Richardson V. Eichardson, 35 Vt. 238; Stewart v. Harriman, 56 N. H. 
 25; Frew V. Clark, 80 Pa. St. 170; Overton V. Overton, 4 Dev. & B. 197; 
 Noble V. Burnett, 10 Rich. 505; Kelly V. Miller, 39 Miss. 17; Orndoff 
 f. Hummer, 12 B. Mon. 619. See Standley v. Moss, 114 111. App. 612. 
 
 so Patten V. Tallman, 27 Me. 17; Amory V. Fellowes, 5 Mass. 219; 
 McLean V. Barnard, 1 Root 462; Higgins v. Carlton, 28 Md. 115; 
 Deakins V. Hollis, 7 Gill & J. 311; Gill's Will, 2 Dana 447; Rucker V. 
 Lambdin, 12 Smed. & M. 230; Mixon v. Armstrong, 38 Texas 296. 
 
 si Garcia y Perea v. Barela (N. M.), 23 Pac. Rep. 766. 
 
 52 1 Jar. on Wills (5 Am. ed) 200, Am. note. See Harrison V. Bur- 
 gess, 1 Hawks 384; Brown V. Beaver, 3 Jones L. 516; Succession of 
 Ehrenberg, 21 La. An. 280; Hannah v. Peak, 2 B. Mon. 133; Hocker v. 
 Hocker, 4 Gratt. 277; Crutcher v. Crutcher, 11 Humph. 377; Anderson 
 V. Pryor, 10 Smed. & M. 620; Brown V. Eaton, 91 N. C. 26; Skerrett's 
 Estate, 67 Cal. 58. See McLain v. Garrison (Texas 1905), 88 S. W. 
 Ret>. 484. 
 928
 
 CH. XXIV.] TITLE BY DEVISE. 636 
 
 cases be overthrown, unless the strongest proof of fair deal- 
 ing was established in support of the will." 
 
 636. What property may be devised. It may be stated as 
 a general proposition that every interest in lands, except a 
 mere possibility, may be the subject of devise. This would 
 include incorporeal as well as corporeal hereditaments, estates 
 in expectancy, contingent remainders, where the contingency 
 does not rest upon the uncertainty of the remainder-man, and 
 possibilities coupled with an interest, such as a right of entry 
 to defeat an estate upon condition, where it is attached to 
 some reversionary interest. 54 In Massachusetts a right of 
 entry in an estate upon condition may be devised, whether 
 the grantor has a reversionary interest or not. And the right 
 will sometimes pass to the devisee under a residuary devise 
 without special mention. 55 It was once the English law, and 
 at an early day the law in this country, that the will could 
 only convey the real property owned by the testator at the 
 time when the will was executed. But now in England and 
 in most of the States this rule has been changed by statute, so 
 
 v. Buttin, 1 Curt. 637; Ingraham v. Wyatt, 1 Hagg. 388; 
 Taylor v. Gardiner, 35 N. Y. 559 ; Day v. Day, 3 N. J. Eq. 549 ; Harvey 
 v. Sullens, 46 Mo. 147; Sterling V. Sterling, 64 Md. 138. "An olo- 
 graphic will was merely a memorandum of testator's property, dated 
 at the top, and followed by a clause disposing of the same. Held, 
 that it was immaterial whether the date at the top was the date of 
 the will, or the date on which testator was the owner of the specified 
 property." In re Clisby's Estate (Cal. 1904), 78 Pac. Rep. 964. 
 
 64 2 Washburn on Real Prop. 562; 3 Washburn on Real Prop. 522, 
 523; 4 Kent's Com. 511, 513; Hayden v. Stoughton, 5 Pick. 528; Aus- 
 tin v. Cambridgeport Parish, 21 Pick. 215; Steele v. Cook, 1 Mete. 281; 
 Den v. Manners, 20 N. J. L. 142; Southard v. Central R. R. Co., 26 N. 
 J. L. 13; Kean v. Roe, 2 Harr. 112. For devise of rents not in exist- 
 ence at date of will, as a specific legacy, see Manlove v. Gant, 2 Tenn. 
 Ch. App. 410. 
 
 BB Hayden r. Stoughton, 5 Pick. 528 ; Austin v. Cambridgeport Parish, 
 21 Pick. 215. 
 
 59 929
 
 637 TITLE BY DEVISE. [PART III. 
 
 that a residuary or general devise will convey whatever prop- 
 erty the testator owned at the time of his death. 68 
 
 637. A competent testator, who is. All persons are com- 
 petent to dispose of their property by will who do not come 
 under one of the three classes of persons under disability. 
 The three classes are infants, femes covert, and persons of in- 
 sane mind. These persons are expressly excluded by the old 
 English Statute of Wills, and they are either expressly ex- 
 cluded by the American Statutes, or by implication, unless 
 the statutes expressly direct otherwise. The general rule in 
 regard to infants is that they cannot make a devise of real 
 property until they are twenty-one years of age. But, in 
 some of the States, females of the age of eighteen are by stat- 
 ute declared to be competent to make a will. 57 Although, 
 under the English Statute of Wills and the earlier American 
 statutes, a married woman was not allowed to make a will of 
 her property, yet her property could be settled to her use and 
 to the use of her appointee by will. Her appointee would 
 take the legal estate by the operation of the Statute of Uses 
 upon her appointment. In England, and in all the States, 
 she could make a will of equitable estates if the power was 
 expressly reserved to her, and in some of the States, as well as 
 in England, it was not necessary to reserve the power. She 
 possessed it as a natural incident of her separate estate. 58 In 
 the United States the later tendency of legislation is to free 
 married women from all disability in respect to the manage- 
 ment of their property. In some States there is the broad 
 
 M 3 Washburn on Real Prop. 509. This is the statute law in Ala- 
 bama, California, Colorado, Connecticut, Delaware, Georgia, Illinois, 
 Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, 
 Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New Hamp- 
 shire, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, 
 South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia and 
 Wisconsin. 1 Jar. on Wills (5 Am. ed.) 602, 603, Am. note. Hopper'* 
 Estate, 66 Cal. 80. 
 
 67 Washburn on Real Prop. 510; Wells, v. Seely, 47 Hun. 109. 
 
 s See ante, Sec. 348, note. 
 930
 
 CH. XXIV.] TITLE BY DEVISE. 637 
 
 rule of law established, that a married woman shall have in 
 respect to her property all the powers of disposition and man- 
 agement of a single woman. Of course, in those States, she 
 can make a will of her legal as well as her equitable estates, 
 and bar whatever contingent interests her husband may have 
 in her property, including his tenancy by the curtesy. 69 But 
 in some of those States where she has not an absolute estate 
 in her real property she cannot make a will which will bar 
 her husband's curtesy, but in every other way her will will 
 convey a good title to the devisee. 60 In respect to what degree 
 of sanity is necessary to make a competent testator, it is diffi- 
 cult to make any concise and comprehensive statement which 
 will apply to every case which may arise; and a detailed 
 presentation of the law would require more space than could 
 be given on the subject in an elementary treatise on real 
 property. The ipquiry in all such cases, is : Had the testa- 
 tor at the time of the execution of the will sufficient mental 
 capacity to make a will, not whether he was sane or insane. 01 
 "He must, undoubtedly, retain sufficient active, memory to 
 collect in his mind, without prompting, particulars or ele- 
 ments of the business to be transacted, and to hold them in 
 his mind a sufficent length of time to perceive at least their 
 more obvious relations to each other, and to be able to form 
 some rational judgment in relation to these." 62 If a man 
 
 0Washburn on Real Prop. 510. See Van Wert v. Benedict, I 
 Bradf. 114; Dickinson V. Dickinson, 61 Pa.. St. 401; Johnson V. Sharp, 
 4 Coldw. 45; Mosser V. Mosser's Exrs., 32 Ala. 551; In re Fuller,, 79 
 111. 99. But see Cooke's Appeal, 132 Pa. St. 533, 19 Atl. Rep. 274. See 
 Patrick v. Morrow (Colo. 1905), 81 Pac. Rep. 242; Dunn v. Stoners 
 (W. Va.), 51 S. E. Rep. 366; McWhorter v. O'Neal (Ga. 1905), 49 S. E. 
 Rep. 592. 
 
 oSilsby v. Bullock, 10 Allen 94; Burroughs . Nutting, 105 Mass. 
 228; Vreeland v. Ryno, 26 N. J. Eq. 160; Beals v. Storm, 26 N. J. Eq. 
 372. 
 
 i v Fonnan's Will, 54 Barb. 274; Hopper's Will, 33 N. Y. 619; Parish 
 Will Case, 25 N. Y. 9 ; Brown v. Mitchell, 75 Texas 9, 12 S. W. Rep. 606 ; 
 In re Voorhis, 9 N. Y. S. 201. 
 
 zCh. J. Redfield in Converse t>. Converse, 21 Vt. 170; Jackson v. 
 
 931
 
 637 TITLE BY DEVISE. [PART III. 
 
 has sufficient mental capacity to manage his business, he is 
 presumably competent to make a will. But this is not a sure 
 and invariably reliable test. A man may be perfectly sane 
 in every respect except one point; yet if his mental capacity 
 to make that particular will is affected by the monomania, 
 the will will be void. 68 Or, on the other hand, one may be in- 
 sane on every other matter, and rational enough to make a 
 will ; and although it would be difficult in such cases to estab- 
 lish the sanity of the testator, yet if it was proven, the va- 
 lidity would not be affected by the testator's insanity on other 
 subjects. 64 And so, if the testator is only suffering from a 
 monomania which has no bearing upon his judgment and ca- 
 pacity to make the will, the validity will not be affected 
 thereby. 65 Thus, the subsequent suicide of the testator raises 
 
 Hardin, 83 Mo. 175; Rule V. Maupin, 84 Mo. 587; Delany v. Salina, 34 
 Kan. 532; Bosley v. McGough, 115 111. 11; Shaver v. McCarthy, 110 Pa. 
 St. 339, 5 Atl. Rep. 614; Prather v. McClelland, 76 Texas 574, 13 S. W. 
 Rep. 543. 
 
 ess Washburn on Real Prop. 512; Hopper's Will, 33 N. Y. 619; 
 Alexander's Will, 27 N. J. Eq. 463; Townshend V. Townshend, 7 Gill 
 10; Denson V. Beazley, 34 Texas 191; Morse v. Scott, 4 Dem. 507; 
 Prather v. McClelland, 76 Texas 574, 13 S. W. Rep. 543; In re White's 
 Will (N. Y.), 24 N. E. Rep. 935; Williams' Exr. v. William (Ky.), 13 
 S. W. Rep. 250. See Roche v. Nason, 93 N. Y. S. 565; In re Clap- 
 ham's Est. (Neb. 1905), 103 N. W. Rep. 61; In re Cowdry's Will 
 (Vt.), 60 Atl. Rep. 141; Johnson V. Farrell, 215 111. 542, 74 N. E. Rep. 
 760; In re Hawley's Will, 91 N. Y. S. 1097. " A person may have de- 
 lusions in believing that he has communications with the spirits of 
 deceased persons, but unless such communications control the disposi- 
 tion of his property, the believer in them is not incompetent to make a 
 will." In re Randall, 59 Atl. Rep. 552, 99 Me. 396. 
 
 * A most remarkable case is that of Cartwright v. Cartwright, I 
 Phill. 90, where the testatrix, having been violently insane for some 
 time, was permitted to write a will, and her hands were untied for that 
 purpose. The will was so extremely rational in its terms and provi- 
 sions that the court held it to have been made in a lucid interval. See 
 Bitner V. Bitner, 65 Pa. St. 347; Lamb t?. Lamb, 105 Ind. 456; In re 
 Voorhis, 9 N. Y. S. 201; In re Lockwood, 8 N. Y. S. 345. 
 
 5 Coghlan v. Coghlan, 1 Phill. 120 ; Weir's Will, 9 Dana 434. " An 
 undue prejudice by testator based on some reason is not an insane de- 
 932
 
 CH. XXIV.] TITLE BY DEVISE. 638 
 
 no presumption against the validity of the will. 88 Where the 
 will is properly executed and probated, the burden of proof 
 of the testator's mental condition is on the contestant who 
 must rebut the presumption in favor of the testator's sanity. 07 
 Somewhat similar to the effect of insanity of testator on the 
 validity of the will, is that of the exertion of undue influence 
 over the testator in the construction of his will. The influ- 
 ence must be something more than powerful or overruling 
 through the force of argument. In order to invalidate the 
 will, it must either rest upon fraudulent misrepresentations 
 or it must amount to duress.* 8 
 
 638. Who may be devisees What assent necessary. 
 Any person may be a devisee, including married women, in- 
 fants, and corporations, which are not prohibited from taking 
 real estate by devise. Except in Pennsylvania, the Statute 
 of Mortmain has never been recognized in this country as the 
 common law. But in New York, and perhaps in other States, 
 corporations can take by devise only within the limits pre- 
 
 lusion." In re Clapham's Estate (Neb. 1905), 103 N. W. Rep. 61; In re 
 Randall, 99 Me. 396, 59 Atl. Rep. 552. 
 
 6 Burrows t?. Burrough, 1 Hagg. 109; Brooks V. Barrett, 7 Pick. 94; 
 Duffield v. Morrows, 2 Harr. 375; Roche V. Nason, 93 N. Y. S. 565. 
 
 T Fee V. Taylor, 83 Ky. 259; Pendlay v. Eaton, 130 111. 69, 22 N. E. 
 Rep. 853. But see contra, Jones v. Roberts, 37 Mo. App. 163. 
 
 8 See Re Pemberton, 40 N. J. Eq. 520; Stirling v. Stirling, 64 Md. 
 138; Sunderland v. Hood, 84 Mo. 293; Bridwell v. Swank, 84 Mo. 455; 
 Bush v. Bush, 87 Mo. 480; In re Moon's Will, 8 N. Y. S. 86; Bonse's 
 Will, 18 111. App. 433; Parsons v. Parsons, 66 Iowa 754; Schofield v. 
 Walker, 58 Mich. 96; Armstrong v. Armstrong, 63 Wis. 162; In re 
 Mitchell's Estate, 43 Minn. 73, 44 N. W. Rep. 885; Bledsoe's Exr. r. 
 Bledsoe (Ky.), 1 S. W. Rep. 10; Jones v. Roberts, 37 Mo. App. 163;. 
 Dumont v. Dumont, 46 N. J. Eq. 223, 19 Atl. Rep. 467; Zn re White's 
 Will (N. Y.), 24 N. E. Rep. 935; Kaul V. Brown (R. I.), 20 Atl. 
 Rep. 10; Grove v. Spiker (Md.), 20 Atl. Rep. 144; In re Bishop's Will, 
 10 N. Y. S. 217; Hartman v. Strickler, 82 Va. 225; In re De Baun's 
 Est., 9 N. Y. S. 807; Struth v. Decker (Md.), 59 Atl. Rep. 727; Suc- 
 K ion of Morere (La.), 38 So. Rep. 436; In re Owen's Est. (Neb.), 
 103 N. W. Rep. 675. 
 
 933
 
 638 TITLE BY DEVISE. [PART III. 
 
 scribed by statute. 89 A devise in prcesenti takes effect imme- 
 diately after the death of the testator. It is necessary that 
 the devisee should then be in esse, in order that he may take at 
 all. This is the general rule, but two notable exceptions are 
 now very generally recognized. It is now generally held 
 that a devise to an unborn child en ventra sa mere will be 
 good, and the vesting will be postponed until its birth. 71 A 
 devise to an unincorporated society, if for a charitable use, 
 will be good and vest in the society when it is subsequently 
 incorporated. 72 But no one can be made a devisee against 
 his will. The title only vests in him when he assents to it. 
 The law, however," presumes an acceptance in ordinary cases 
 where the devise is a beneficial one. And it seems doubtful 
 that any disclaimer, short of a deed of renunciation, will be 
 sufficient to vest the title in the heir to the exclusion of a sub- 
 sequent claim of the devisee. 73 But this presumptive accept- 
 ance of the devisee will not be sufficient to bind the devisee 
 by the charges and conditions upon the estate. Generally 
 some affirmative act, such as entry into possession, will be re- 
 
 3 Washburn on Real Prop. 512, 513. 
 
 702 Washburn on Real Prop. 685; 3 Washburn on Real Prop. 530; 
 Ex parte Fuller v. Story, 327; Ives v. Allen, 13 Vt. 629; Lofton v. 
 Murchison (Ga.), 7 S. E. Rep. 322. But very often a devise to a per- 
 son not in esse will be construed as an executory devise, if such a con- 
 struction does not appear to be contrary to the intention of the testator. 
 See ante, Sec. 388. 
 
 71 Burdett v. Hopegood, 1 P. Wm. 486 ; Mogg v. Mogg, 1 Meriv. 654 ; 
 Pratt V. Flamer, 5 Harr. & J. 10. See Amyat v. Dwarris (Eng.) 73 
 Law J. P. C. 40, 90 Law T. 102, 20 L. T. Rep. 268. 
 
 72 Bartlett V. King, 12 Mass. 536 ; Zimmerman v. Anders, 6 Watts 
 &, S. 218; Zeisweiss v. James, 63 Pa. St. 465; Am. Tract Soc. v. At- 
 water, 30 Ohio St. 77; Estate of Ticknor, 13 Mich. 44. Contra, White 
 V. Howard, 46 N. Y. 144. And see State v. Warren, 28 Md. 338; Craig 
 V. Secrist, 54 Ind. 419; White v. Hale, 2 Coldw. 77; Tilden v. Green, 
 2 N. Y. S. 584. See also post, Sec. 641. See Colbert v. Speer (D. C. 
 1904), 24 App. D. C. 187; Mosher v. Whlltesy, Id.; Speer v. Speer, Id. 
 
 78 Co. Lit. Ill a; 4 Kent's Com. 533; Doe v. Smyth, 6 B. & C. 112; 
 Wilkinson V. Leland, 2 Pet. 627; Webster v. Gilman, 1 Story 499; Etff 
 parte Fuller, 2 Story 327; Tole v. Hardy, 6 Cow. 340; Bryan v. Hyre, 1 
 Rob. (Va.) 94. 
 934
 
 CH. XXIV.] J TITLE BY DEVISE. 640 
 
 quired to make him liable. But if he enters into possession 
 of the estate, he takes it subject to all the conditions and bur- 
 dens imposed by the testator. 7 * 
 
 639. Devisee incapacitated by murder of the testator. 
 In a late case of the New York Court of Appeals, it has been 
 held that a devisee or legatee will be restrained from partici- 
 pating in the provisions of the will where he is guilty of the 
 murder of the testator. The loss of such legacy or devise is 
 declared to be a penalty or forfeiture imposed by the law 
 by implication for the crime of murder, on the general 
 ground that it could not have been the intention of the law, 
 and it is certainly against good morals, to permit such a bene- 
 ficiary to profit by his crime. "What could be more unrea- 
 sonable than to suppose that it was the legislative intention 
 in the general law passed for the orderly, peaceable and just 
 devolution of property that they should have operation in 
 favor of one who murdered his ancestor that he might speed- 
 ily come into the possession of his estate? Such an inten- 
 tion is inconceivable. We need not, therfore, be much 
 troubled by the general language contained in the laws. ' ' 75 
 Whatever may be thought, as a question of morality or as a 
 proposition for future legislation, of the justice of depriving 
 such a beneficiary from all benefit under the will as a pun- 
 ishment for the murder of the testator, it is certainly a very 
 remarkable case of judicial legislation for the court to im- 
 pose such a penalty, when the criminal law or the law of wills 
 does not contain any express provision to that effect. 
 
 640. Devisee and devise must be clearly defined Parol 
 evidence. No particular formality is required to be observed 
 in defining the subject-matter of a devise, the only general 
 rule being, that the matter must be stated in language suffi- 
 ciently clear to enable the courts to ascertain the person and 
 
 7 Perry v. Hale, 44 N. H. 65. 
 
 76 Opinion by J. Earl, Rigg v. Palmer, 115 N. Y. 506. 
 
 935
 
 640 TITLE BY DEVISE. [PART III. 
 
 property intended. The devise will not be void from un- 
 certainty, as long as the property devised and the person of 
 the devisee can be identified by the description in the will. 76 
 A devise of the income of certain lands operates as a devise 
 of the land, and vests in the devisee a perfect legal title 
 thereto. 77 Where a devise is made to the "children" of one, 
 the ordinary construction, in the absence of circumstances 
 pointing to a different intention, is that only the immediate 
 offspring of the person are included in the devise, and that 
 the child of a deceased child cannot take under it. 78 But 
 where there are statutes which provide that the devise upon 
 the death of the devisee shall not lapse but shall vest in such 
 devisee's children, this rule of construction must give way. 79 
 And the same result is reached where the context shows that 
 the word "children" is used in the sense of issue. 80 The 
 devise may be limited to the survivors of two or more. 81 And 
 
 7e Trustees, etc., v. Hart, 4 Wheat. 1; Smith v. Smith, 4 Paige 271; 
 Hoge v. Hoge, 1 Watts 214; NewelPs Appeal, 24 Pa. St. 197; Baldwin 
 v. Baldwin, 7 N. J. Eq. 211; Calhoun v. Furgeson, 3 Rich. Eq. 160; Ala- 
 bama Conference V. Price, 42 Ala. 39. 
 
 77 Ryan v. Allen, 120 111. 648; Seiber's Appeal (Pa.) 9 Atl. Rep. 863; 
 King v. Grat, 55 Conn. 166; Bell V. Fowler, 55 Conn. 364; Davidson t'. 
 Bates, 111 Ind. 391; Davidson v. Hutchins (Ind.), 13 N. E. Rep. 106; 
 Dodd v. Winship, 144 Mass. 461; Davis V. Williams, 1 Pickle 646; Post 
 T. Rivers, 40 N. J. Eq. 21; Williams v. McKinney, 34 Kan. 514. 
 
 78 In re Goble's Will, 10 N. Y. S. Rep. 692; Demill v. Reid, 71 Md. 
 175; Hunt's Appeal, 25 N. W. C. 450; Wood's Appeal, 25 W. N. C. 464; 
 Hayne v. Irvine, 25 S. C. 289; Campbell v. Clark, 64 N. H. 328; Pugh 
 v. Pugh, 105 Ind. 552. So a devise to " heirs at law " is held to mean 
 the heirs living at the time of the authorized distribution. Hostetter v. 
 State (Ohio 1904), 26 Ohio Cir. Ct. R. 702. 
 
 7Wooley v. Paxton, 46 Ohio St. 307; Pond v. Allen, 15 R. I. 171; 
 Stockbridge V. Stockbridge, 145 Mass. 517; Patchen V. Patchen, 49 Hun 
 270; Chenault's Guardian v. Chenault's Estate (Ky.), 9 S. W. Rep. 775; 
 Outcalt v. Outcalt, 42 N. J. Eq. 500. 
 
 so Miller v. Carlisle (Ky.), 14 S. W. Rep. 75; Cody v. Bunn's Exr., 
 46 N. J. Eq. 131; Schedel, In re, 73 Cal. 594; Hall v. Hall, 140 Mass. 
 267. 
 
 8i Davis v. Davis, 118 N. Y. 411; Eldridge v. Eldridge, 41 N. J. Eq. 
 414. 
 
 936
 
 CH. XXIV.] TITLE BY DEVISE. 640 
 
 while the "children" may be construed to mean "heirs," 
 where such appears to be the intention of the testator giving 
 the first taker an estate in fee, instead of a life estate, 82 yet the 
 presumption is always against such a construction, and in 
 favor of holding the words to be one of purchase instead of 
 limitation, giving to the children a remainder, and the parent 
 a life estate, 83 or permitting them to take jointly with their 
 parents. 84 The courts always endeavor to ascertain the inten- 
 tion of the testator, if possible, and for that purpose give the 
 widest latitude possible to the construction of wills, so that 
 any misconception of the force and meaning of words will not 
 prevent the will from taking effect or give it a wrong appli- 
 cation. Thus, it is often necessary to substitute one word for 
 another in a will, in order to carry out the intention of the 
 testator. It is very common to substitute "and" for "or," 
 and vice versa, "all" for "any," and the like. But this can 
 only be done where the intention is clearly shown on the 
 face of the will to be contrary to the ordinary meaning of 
 the words used. 85 It has also been held proper to construe 
 "heirs" to mean children, when the context shows that the 
 word was used by the testator in that sense. 88 So, also, it 
 has been held that a devise to S. 's family and M. may be con- 
 
 szLockwood's Appeal, 55 Conn. 157; Smith v. Fox's Admr., 82 Va. 
 763; Mason v. Ammon, 117 Pa. St. 127. See ante, Sec. 322. 
 
 3 Foster . McKenna (Pa.), 11 Atl. Rep. 674; McDonald v. Dunbar 
 (Pa.), 12 Atl. Rep. 553; Jones v. Cable, 114 Pa. St. 586; Affolter v. 
 May, 115 Pa. St. 54. 
 
 84 Proctor v. Proctor, 141 Mass. 165. 
 
 SB Story Eq. Jur., Sec. 179; Johnson v. Simcock, 7 H. &. Norm. 344; 
 Jackson V. Blanchan, 6 Johns. 54 ; Jackson v. Topping, 1 Wend. 396 ; 
 Holcombe v. Luke, 25 N. J. L. 605; Roe v. Vengut, 117 N. Y. 204; Gray 
 r. Missionary Society (N. Y.), 2 N. Y. S. 878; Massay v. Davenport, 23 
 S. C. 453. 
 
 8 Barton v. Tuttle, 62 N. H. 558 ; In re Session's Estate, 70 Mich. 
 297; Wiggins v. Perkins, 64 N. H. 36; Lockwood's Appeal, 55 Conn. 
 157; Anthony v. Anthony, 55 Conn. 256; Ballentine v. Wood, 42 N. J. 
 Eq. 552; Myrick V. Heard, 31 Fed. Rep. 241; Eldridge v. Eldridge, 41 
 N. J. Eq. 414. But see Reniston v. Adams, 80 Me. 290; Fabens ?. 
 Fabens, 141 Mass. 395; Randolph v. Randolph, 40 N. J. Eq. 75. 
 
 937
 
 640 TITLE BY DEVISE. [PART III. 
 
 strued to give one-half of the property to M. and the residue 
 only to the children of S., instead of making M. share alike 
 with the children of S. 8T But if the words "share and share 
 alike" had been inserted in the clause of the will, this con- 
 struction would not have been sustained. 88 The word "fam 
 ily" is generally construed to mean the children of the person 
 named and his wife, if there be one. 89 "Personal representa- 
 tives" can be construed to mean "next of kin." 90 And 
 many such examples of elastic construction may be referred 
 to. 91 It is the general rule, subject to exceptions to be men- 
 
 87 Silsby v. Sawyer, 64 N. H. 580. 
 
 ss In re Swinburne (R. I.), 14 Atl. Rep. 850. 
 
 so Langmaid v. Hurd, 64 N. H. 526 ; Silsby V. Sawyer, 64 N. H. 580. 
 
 90 Da vies v. Da vies, 55 Conn. 319. 
 
 91 Jenkins v. Jenkins, 64 N. H. 407, " issue " means legitimate off- 
 spring; Dexter v. Inches (Mass.), 17 N. E. Rep. 551; "issue" including 
 grandchildren ; Russell v. Russell, 84 Ala. 48 ; " my children " does not 
 include a child legally adopted ; to same effect, see Session's Estate 
 (Mich.), 38 N. W. Rep. 249; Reinders v. Koppelman, 94 Mo. 338; God- 
 dard v. Amory (Mass.), 16 N. E. Rep. 725, "my nephews and nieces" 
 does not include the wives of the nephews of the testator ; Lockman v. 
 Hobbs, 98 N. C. 541; "heirs" held to mean children and to exclude 
 grandchildren; Locke V. Locke (N. J.), 16 Atl. Rep. 49; "nearest rela- 
 tions" means brothers, to exclusion of nephews and nieces; Mayer r. 
 Hover (Ga.), 7 S. E. Rep. 562, "children of H. & M." held to take 
 per stirpes and not per capita; to same effect, see Shepard's Heirs r. 
 Shepard's Estate (Vt.), 14 Atl. Rep. 536; Eyer v. Beck (Mich.), .IS 
 N. W. Rep. 20; Frazer v. Dieton, 78 Ga. 474; Lockwood's Appeal, f>"> 
 Conn. 157; Alston's Appeal (Pa.), 11 Atl. Rep. 366; Woodward r. 
 James, 14 Abb. N. C. 246; Swinburne, In re (R. I.), 14 Atl. Rep. 850; 
 Cumming's Exr. v. Cummings (Mass.), 16 N. E. Rep. 401. Contra, 
 Campbell v. Clark, 64 N. H. 328; Dole v. Keyes, 143 Mason 237; Hug- 
 gins v. Huggins, 72 Ga. 825; Kindro v. Johnston, 15 Lea 78; McKel- 
 vey V. McKelvey, 43 Ohio St. 213; De Laurencel v. De Broom, 67 Cal. 
 362; Avery v. Everett, 110 N. Y. 317; imprisonment for life does not 
 amount to death, in a limitation over on the death of first taker ; 
 Simon's Will; In re, 55 Conn. 239; "family" construed to include wife 
 and daughter, but exclude an adult son; Weeks v. Cornwell, 104 N. Y. 
 325; "legatees" construed to mean "devisees;" Wilcox's Appeal, 54 
 Conn. 320; limiting the meaning "the above named devisees; " to the 
 same effect, Brabham V. Crosland, 25 S. C. 525; Wyeth v. Stone, 144 
 Mass. 441 ; devise of one's " farm " held to include outlying tracts of 
 
 938
 
 CH. XXIV.] TITLE BY DEVISE. 640 
 
 tioned hereafter, that parol evidence is not admissible to 
 prove the intention of the testator. 92 The explanatory rule, 
 which has been recognized as the prevailing test since the days 
 of Bacon, is that parol evidence is not admissible to explain 
 away a patent ambiguity, while it may control and remove a 
 latent ambiguity. The ambiguity may concern the person 
 intended to take or the thing devised. The distinction be- 
 tween latent and patent ambiguity, in respect to the admissi- 
 bility of parol evidence, lies in a rule already given, that the 
 intention must be gathered from the will itself. If it is a 
 patent ambiguity the will does not express any certain in- 
 tention, and it is, therefore, void from uncertainty. But if 
 the ambiguity is latent, i. e., discovered dehors the will, there 
 would be no ambiguity as to the intention of the testator if 
 the investigation was confined to the will itself. The am- 
 biguity, arising from extraneous facts, may in like manner be 
 
 land, commonly known as a part of it; West V. Randle (Ga. ), 3 S. E. 
 Rep. 454, "all the property" limited in its meaning by the context; 
 Stewart's Estate, 74 Cal. 98, devise of " one-half of all my estate " to 
 the wife, held to pass to her only the one-half of the community prop- 
 erty, which if wife excluded she could claim without a devise. "Grand- 
 children cannot take under bequest in a will to children as a class, un- 
 less there is something in the will to indicate such an intention." 
 Lyon v. Baker (Ga. 1905), 50 S. E. Rep. 44. "The use in a will of 
 the word " lawful," qualifying the word " heirs," is not sufficient of 
 itself to show an intention not to use the word " heirs " in its ordinary 
 legal sense, as a word of inheritance or of limitation." Wool V. Fleet- 
 wood (N. C. 1904), 48 S. E. Rep. 785. 
 
 2 Farrar V. Ayres, 5 Pick. 407 ; Barrett V. Wright, 13 Pick. 405 ; 
 Jackson v. Lill, 11 Johns. 201; White v. Hicks, 33 N. Y. 383; Dey v. 
 Dey, 19 N. J. Eq. 137; Kelly v. Kelly, 25 Pa. St. 460; Mordecai 17. Jones, 
 6 Jones Eq. 365 ; Coffin v. Elliott, 9 Rich. Eq. 244 ; Willis v. Jenkins, 30 
 Ga. 169; Mitchell v. Walker, 17 B. Mon. 61; Fitzpatrick v. Fitzpatrick, 
 36 Iowa 674; Robinson v. Bishop, 23 Ark. 378; Love V. Buchanan, 40 
 Miss. 758. This holds true as to fatal misdescriptions of the land ; 
 parol evidence cannot supply the true description. Ehrmann v. Hoskins, 
 6 So. Rep. 776 (Miss.); Sturgis v. Work, 122 Ind. 134; Morelock v. 
 Barnard (Tenn.), 2 S. W. Rep. 32; Whitesides V. Whiteaides (S. C.), 
 5 S. E. Rep. 816; Christy v. Badger, 72 Iowa 581; Bowen v. Allen, 
 113 111. 53; s. c. 55 Am. Rep. 398. 
 
 939
 
 641 TITLE BY DEVISE. [PART III. 
 
 explained away without violating the rule of evidence, that 
 parol evidence is not admissible to contradict a writing. 93 It 
 is always admissible to show by extraneous evidence that cer- 
 tain rights are appurtenant to the land devised, and hence 
 they too pass to the devisee, although not specially named in 
 the will. 64 
 
 641. Devises to charitable uses. A notable exception to 
 the rule, requiring the devisee to be definitely ascertained, oc- 
 curs in the case of devises to charitable uses. It will be im- 
 possible to do more than give a general outline of this most 
 interesting and difficult subject. The subject has been dis- 
 cussed and treated by many of America's most eminent 
 jurists, and yet it does not seem to be definitely settled in all 
 its details, no uniform rule having been adopted or discovered 
 which would be reliable and applicable in all the States. 96 It 
 is here laid down that gifts to charitable uses will be sus- 
 tained, although there are no trustees and no definite bene- 
 ficiaries, provided the general intent of the testator can be 
 ascertained. It has already been explained 9<s that courts of 
 equity will never suffer a trust to fail for the want of a trus- 
 tee. But in ordinary trusts the cestui que trust must be 
 definite and ascertained. The statute of 43 Eliz. ch. 4, en- 
 acted that where a devise was made to a charitable use, and 
 
 3 Miller v. Travers, 8 Bing. 244; The Lady Franklin, 8 Wall. 325; 
 Shaw v. Shaw, 50 Me. 94; Billings v. Billings, 10 Cush. 178; Cabot f. 
 Windsor, 11 Allen, 346; Pickering v. Pickering, 50 N. H. 349; Spencer 
 v. Higgins, 22 Conn. 521; Mann V. Mann, 14 Johns. 1; Hinneman v. 
 Rosenbeck, 39 N. Y. 98 ; Nicholls V. Williams, 22 N. J. Eq. 63 ; Love v. 
 Buchanan, 40 Miss. 758; Stephens V. Walker, 8 B. Mon. 600; Grimes v. 
 Harmon, 35 Ind. 246; Fitzpatrick V. Fitzpatrick, 36 Iowa, 674. See 
 Smith v. Kimball, 62 N. H. 606. 
 
 *Nye V. Hoyle, 120 N. Y. 195. 
 
 s The subject constitutes more properly a part of the general sub- 
 jects of Equity Jurisprudence and Uses and Trusts, and to standard 
 works on these subjects, together with Prof. Theo. W. Dwight's argu- 
 ment in the Rose Will Case, published in book form, the reader is re- 
 ferred for a full and comprehensive discussion of it. 
 
 See ante, Sec. 375. 
 940
 
 CH. XXIV. J TITLE BY DEVISE. 641 
 
 no trustee was appointed, the court of chancery shall have 
 the power to appoint trustees, who shall administer the trust 
 in conformity with the testator's wishes, if they could be 
 definitely ascertained and carried out, and if not, then as 
 nearly as possible, the latter provision being known as the 
 cy pres doctrine. It has always been a matter of consider- 
 able doubt whether the provisions of this statute constituted 
 a part of the American jurisprudence, but the general impor- 
 tance of this question has been dissipated by the almost 
 unanimous conclusion of the courts, that the statute was 
 only remedial and confirmatory of the power which the court 
 of chancery had previously possessed and exercised. 97 The 
 uncertainty which in private trusts would invalidate the de- 
 vise, but which could be cured under the doctrine of char- 
 itable uses, may refer either to the trustee, to the beneficiary, 
 or to the object of the devise. In all charitable uses the bene- 
 ficiaries are indefinite and uncertain, usually consisting of a 
 class, the individuals of which are constantly changing. 
 Thus, where a devise is made to a university, or to found 
 one, the beneficiaries are the students who from time to time 
 enter its halls. But it is a general rule that the object of 
 charity, and the class of persons who are to be benefitted by 
 it, should be sufficiently described as to be capable of identifi- 
 
 *Vidal v. Gerard, 2 How. 127; Going v. Emery, 16 Pick. 107; Bap- 
 tist Ass. v. Hart, 4 Wheat. 1; Witman v. Lex, 17 Serg. & R. 88; Jack- 
 son v. Phillips, 14 Allen 577 ; Burbank v. Whitney, 24 Pick. 152 ; Potter 
 v. Thornton, 7 R. I. 263; Bell Co. v. Alexander, 22 Texas 362; Inglis 
 v. Trustees of Sailors' Snug Harbor, 3 Pet. 140. Contra, Bascom v. 
 Albertson, 34 N. Y. 618. But whether the Court of Chancery had 
 original jurisdiction, or it was conferred upon it by the statute of 
 Elizabeth, the doctrine of Charitable Uses is generally recognized 
 throughout the United States. See Tappan v. Deblois, 45 Me. 122; 
 Drew v. Wakefield, 54 Me. 295; Atty.-Gen. v. Moore, 19 N. J. Eq. 503; 
 Trustees, etc., v. Zanesville C. & M. Co., 9 Ohio 203; Gals v. Wilhite, 
 2 Dana 170; Griffin v. Graham, 1 Hawks 96; Miller v. Chittenden, 2 
 Iowa 315. See, also, Bingham v. Peter Bent Bingham Hospital, 134 
 Fed. Rep. 513; Cadman v. Bingham (Mass. 1905), 72 N. E. Rep. 1008. 
 
 941
 
 641 TITLE BY DEVISE. [PAKT III. 
 
 cation. 98 Where there is a trustee or board of trustees ap- 
 pointed by the will to administer the trust, it seems to be 
 the universal rule, adopted alike in all the States, that such a 
 charitable trust will be sustained if the class of beneficiaries 
 is definitely described. And I apprehend that a greater un- 
 certainty is permissible in such cases than in those in which 
 no trustee has been appointed." And where the trustees are 
 authorized by the will to exercise their discretion in the selec- 
 tion of the beneficiaries, the devise has in many cases been 
 declared definite and valid, while it would probably be in- 
 valid, if the trustees were not appointed by the will. Id cer- 
 ium est, quod cerium reddi potest. 1 It is also the rule, in 
 perhaps all the States except New York, that where the ob- 
 ject of the devise is certain and ascertainable, it will be sus- 
 tained, although there are no ascertained trustees or bene- 
 ficiaries. The courts of equity have the power in such cases 
 to appoint trustees to carry out the will and administer the 
 trust. 2 Whether the English doctrine of cy pres is applica- 
 
 os Wheeler v. Smith, 2 How. 55; Perin v. Carey, 24 How. 465; Loring 
 V. Marsh, 6 Wall. 337; Atty.-Gen. V. Trinity Church, 9 Allen 422; 
 Treat's Appeal, 30 Con. 113; State v. Griffith, 2 Del. Ch. 392; Newson v. 
 Clark, 46 Ga. 88; Wade V. Am. Col. Soc., 7 Smed. & M. 695; More & 
 Moore, 4 Dana 354; Miller v. Teachout, 24 Ohio St. 525; DeBruler V. 
 Ferguson, 54 Ind. 549; Heuser V. Allen, 42 111. 425; Elnell V. Univer- 
 salist Gen. Convention, 76 Texas 514. 
 
 Perry on Tr., Sec. 732 ; Downing v. Marshall, 23 N. Y. 366 ; Going 
 v. Emery, 16 Pick. 107; Treat's Appeal, 30 Conn. 113; Schultz's Ap- 
 peal, 80 Pa. St. 396; State V. Griffith, 2 Del. Ch. 392; Needles V. Mar- 
 tin, 33 Md. 609; DeBruler v. Furguson, 54 Ind. 549; Schmucker V. Reel, 
 61 Mo. 592; Miller v. Chittenden, 2 Iowa 315. 
 
 1 Treat's Appeal, 30 Conn. 113; Witman V. Lex, 17 Serg. & R. 88; 
 Atty.-Gen. V. Jolly, 1 Rich. Eq. 99. But there must be some definite 
 description of the class of persons from which the trustees are to select. 
 Wheeler V. Smith, 9 How. 55; Fontain V. Ravenel, 17 How. 369; Levy 
 v. Levy, 33 N. Y. 97; Gallego v. Atty.-Gen., 3 Leigh 450; Miller v. 
 Atkinson, 63 N. C. 537. See, Cadman V. Bingham (Mass.), 72 N. E. 
 Rep. 1008; Jenkins V. Berry (Ky.), 83 S. W. Rep. 594; Smith v. 
 Havens Relief Fund Soc., 90 N. Y. S. 168; Worcester City Mission Soc. 
 V. Mem. Ch., 186 Mass. 531, 72 N. E. Rep. 71. 
 
 2 Preachers' Aid Soc. V. Rich, 45 Me. 552; Bliss v. Am. Bible Soc., 2 
 
 942
 
 CH. XXIV.] TITLE BY DEVISE. 642 
 
 ble in this country to a devise to a charitable use, where no 
 trustee is appointed, is a matter of some doubt. It is cer- 
 tain, however, that the courts would not, in following the 
 tendency of the English courts, go so far as to authorize 
 funds, bequeathed to found a Jews' synagogue, to be trans- 
 ferred to a foundling hospital, as was done in one case by an 
 English court. 3 And if the doctrine is recognized, it is ap- 
 plied in subordination to the general rule, that the courts 
 cannot supply the intention of the testator by conjecture, 
 but must act in strict compliance with a general intent, ap- 
 pearing on the face of the will, and then only when the special 
 intent cannot be carried out. 4 Finally the doctrine of perpe- 
 tuity does not apply to charitable uses. 5 
 
 642. Lapsed devises What becomes of them. A will 
 speaks from the death of the testator, and all the elements 
 requisite to the validity of the devise must be present and 
 existing then, in order that the devise may take effect. If 
 any one is wanting, as, for example, if the devisee has died 
 before the testator, the devise lapses. And this is the case, 
 although the devise is expressly limited to the devisee and 
 
 Allen 334; Sanderson v. White, 18 Pick. 328; McAllister v. McAllister, 
 46 Vt. 272; Zeisweiss v. James, 63 Pa. St. 465; Dashiell v. Atty.-Gcn., 
 5 Har. & J. 392; Walker v. Walker, 25 Ga. 420; Mason v. M. E. Church, 
 27 N. J. Eq. 47; Williams v. Pearson, 38 Ala. 299; Griffin v. Graham, 
 1 Hawks 96. Contra, Levy V. Levy, 33 N. Y. 97; Bascom v. Albertson, 
 34 Iowa 584; Downing v. Marshall, 23 N. Y. 366. But see Tilden v. 
 Green, 2 N. Y. S. 584. See, Smith V. Relief Fund Soc., 90 N. Y. S. 168. 
 
 83 Washburn on Real Prop. 521; Story on Eq. Jur., Sec. 1169. 
 
 *Fontain t?. Ravenel, 17 How. 389; Loring v. Marsh, 6 Wall. 337; 
 Harvard College v. Society, etc., 3 Gray 283; Saunderson v. White, 18 
 Pick. 333 ; Brown v. Concord, 33 N. H. 285 ; Holmes v. Mead, 52 N. Y. 
 344; Philadelphia v. Girard, etc., 45 Pa. St. 28; Methodist Church v. 
 Remington, 1 Watts 226; Cromie's Heirs v. Louisville Home Soc., 3 
 Bush. 375. The oy pres doctrine was applied in Massachusetts in Cad- 
 man v. Bingham, 72 N. E. Rep. 1008. 
 
 5 Jackson V. Phillips, 14 Allen 550; Odell v. Odell, 10 Allen 8; Gass 
 v. Wilhite, 2 Dana 183; Miller V. Chittenden, 2 Iowa 362. Contra, Levy 
 v. Levy, 33 N. Y. 130; Bascom v. Albertson, 34 N. Y. 598. 
 
 943
 
 642 TITLE BY DEVISE. [PART III. 
 
 his heirs. The word "heirs" in this connection is construed 
 as a word of limitation, and the heirs cannot take as pur- 
 chasers, unless it is the plain intent of the testator to give 
 them the devise, as a limitation over in case of the death of 
 their ancestor. 8 But unless there is an explicit declaration 
 of the person or persons who are to take the devise in the 
 place of the deceased devisee, no declaration that the devise 
 shall not lapse upon the death of the devisee will prevent it 
 lapsing. 7 A devise to two or more as joint tenants will not 
 lapse upon the death of one, not even as to his share. The 
 survivors will take the entire estate. 8 But the share of one 
 co-tenant in a devise to several as tenants in common lapses, 
 the difference in the rule arising out of the distinction be- 
 tween the two kinds of joint estates. 9 If the devise is to a 
 class, the individuals of which are changing, such as, for ex- 
 ample, a devise to my "children," not naming them or indi- 
 cating in any other way that certain definite individuals were 
 intended, those individuals of the class who survive the testa- 
 tor take the entire devise, and there can be no lapse of such 
 a devise unless all the persons, who could be included in the 
 
 Long v. Watson, 17 Beav. 471; Hinchliffe v. Westwood, 2 De G. 
 & S. 216; Kimball v. Story, 108 Mass. 382; Armstrong v. Moran, 1 
 Bradf. 314; Hawn V. Banks, 4 Edw. Ch. 664; Weishaupt V. Brehman, 5 
 Binn. 115; Comfort v. Mather, 2 Watts & S. 450; Dickinson v. Parvis, 
 8 Serg. & R. 71; Hand v. Marcy, 28 N. J. Eq. 59; Davis v. Taul, 6 
 Dana 52. See, Nelson v. Nelson (Ind. 1904), 72 N. E. Rep. 482. 
 
 7 Williams on Ex. 1306; 2 Redf. on Wills, 163; Aspinwall v. Duck- 
 worth, 45 Beav. 307; Hutchinson's Appeal, 34 Conn. 300; Craighead v. 
 Given, 10 Serg. & R. 351. For lapsed devise, in such a case, under 
 Statute of Kentucky, see, Schroeder v. Bohlsen, 84 S. W. Rep. 535. 
 
 Anderson v. Parsons, 4 Me. 486 ; Doyle v . Doyle, 103 Mass. 489 ; De 
 Camp v. Hall, 42 Vt. 483; Bolles V. Smith, 39 Conn. 219; Putnam V. 
 Putnam, 4 Bradf. -308; Stephens V, Miller, 24 N. J. Eq. 358; Craycroft 
 V. Craycroft, 6 Har. & J. 54; Luke V. Marshall, 5 J. J. Marsh. 357. 
 
 Upham v. Emerson, 119 Mass. 509; Cummings v. Bramhall, 120 
 Mass. 552; Allison v. Kurtz, 2 Watts 185; Mason v. Trustees Methodist 
 Church, 27 N. J. Eq. 47 ; Mebane v. Womack, 2 Jones Eq. 293 ; Gray v. 
 Bailey, 42 Ind. 349; Appeal of Ryon, 124 Pa. St. 528. 
 
 944
 
 CH. XXIV.] TITLE BY DEVISE. g 642 
 
 class described, have predeceased the testator. 10 And even 
 where the members of the class are given, it has been held that 
 there will be no lapse of the devise, if there is nothing else 
 in the will to rebute the presumption that the persons named 
 are to take as a class. 11 It is now also provided in a number 
 of the States that upon the death of the devisee before the tes- 
 tator, if he be a son or other relative of the testator, his lineal 
 heirs will take the estate in his place. The statutes vary in 
 detail, some confining the provisions to the lineal heirs of a 
 deceased son or grandson, others extending the benefit to the 
 general heirs of any relative who is named as a devisee, while 
 others go to the length of declaring the heirs of all devisees 
 capable of taking in their ancestor's place, thus abolishing 
 altogether the doctrine of lapse in case of the death of the 
 devisee. 12 After determining that in a given case a devise 
 has lapsed, there is the further question, in whom does it vest. 
 And it may be stated as a general rule everywhere, in the 
 absence of statutory provisions to the contrary, that although 
 lapsed legacies and bequests go to the residuary legatee, 
 lapsed devises vest in the heir at law. 13 A distinction is made 
 
 102 Redf. on Wills, 170; 1 Jar. on Wills (5 Am. ed.) 623; Dimond V. 
 Bostick, L. R. 10 Ch. 358; Schaffer f. Kettell, 14 Allen 528; Downing 
 v. Marshall, 23 N. Y. 366; Young v. Robinson, 11 Gill & J. 328; Yeates 
 V. Gill, 9 B. Mon. 206. See, Langley v. Trust Co. (N. Y. 1905), 73 N. 
 E. Rep. 44. 
 
 11 Schaffer v. Kettell, 14 Allen 528; Stedman v. Priest, 103 Mass. 293; 
 Warner's Appeal, 39 Conn. 253 ; Magaw v. Field, 48 N. Y. 668 ; Hoppock 
 v. Tucker, 59 N. Y. 202; Springer v. Congleton, 30 Ga. 977. Contra, 
 Williams V. Neff, 52 Pa. St. 333; Frazier v. Frazier, 2 Leigh 642. See, 
 also, Morse v. Morse, 11 Allen 36; Todd v. Tott, 64 N. C. 280; Starling 
 v. Price, 16 Ohio St. 32. See, Fiske v. Fiske's Heirs, 26 R. I. 509, 59 
 Atl. Rep. 740; In re Smith's Estate, 210 Pa. 604, 60 Atl. Rep. 255. 
 
 123 Washburn on Real Prop. 523; 1 Jar. on Wills (5 Am. ed.) 638, 
 Am. note; Moore t>. Dimond, 5 R. I. 121; Sheets v. Grubb, 4 Mete. 
 (Ky.) 340. 
 
 is Doe v. Underdown, Willes 293; Doe v. Scott, 3 Maule & S. 300; 
 Hayden v. Stoughton, 5 Pick. 528; Austin v. Cambridgeport Parish, 21 
 Pick. 224 ; Remington . Am. Bible Soc., 44 Conn. 672 ; James v. James, 
 4 Paige 115; Van Cortlandt v. Kip, 7 Hill 346; Gill r. Brouwer, 37 N. 
 
 60 945
 
 643 TITLE BY DEVISE. [PART III. 
 
 in the English law, in this connection, between those devises 
 which lapse from the death of the devisee after the execution 
 of the will, and those which are void ab initio for some cause, 
 such as the death of the devisee before the execution of the 
 will. In the latter case it is held, that the lapsed devise goes 
 to the residuary devisee, on the ground that since the testator 
 intends the residuary devisee to take all the property not pre- 
 viously disposed of, the testator intends him to take this void 
 devise, for a void devise does not dispose of the property. 14 
 But the weight of authority, in fact all the authorities except 
 the case just cited, reject this distinction, holding that the 
 attempt to make a specific devise indicates the intention at 
 the time that the residuary devisee is not to take, and by the 
 common law the residuary devisee only takes what was in- 
 tended for him at the time of making the will. 15 The exist- 
 ence of the will is not at all affected by the lapse of devises. 
 Even though all the devisees and legatees should die before 
 the testator, the will would nevertheless remain operative out- 
 side of the devises and bequests. 16 
 
 643. Revocation of wills. Until the death of the testator 
 the will is ambulatory and can be revoked at the pleasure of 
 the testator. But in order that it may be revoked, something 
 more must be done than a declaration to that effect. Revoca- 
 tion may be express or implied. An express revocation re- 
 sults from an affirmative act of the testator, animo revocandi. 
 A revocation is implied from some act of the testator incon- 
 
 Y. 549; Lingan v. Carroll, 3 Har. & McH. 333; Starkweather v. Am. 
 Bible Soc., 72 111. 50; Wilson v. Odell, 58 Mich. 533. 
 
 n Doe v. Sheffield, 13 East 526; Ferguson V. Hedges, 1 Harr. 524. 
 See, also, O'Connor v. Murphy (Cal. 1905), 81 Pac. Rep. 406. 
 
 IB Van Kleek V. Dutch Church, 20 Wend. 427; Green V. Dennis, 6 
 Conn. 292; State v. Whitbank, 2 Harr. 18; Lingan v. Carroll, 3 Har. & 
 McH. 333. See, also, Colville v. Kinsman (N. J. Ch. 1905), 60 Atl. Rep. 
 959; .Varick V. Smith (N. J. Ch.), 61 Atl. Rep. 159; Duckworth v. 
 Jordan (N. C.), 57 S. E. Rep. 109; Lacey v. Floyd (Texas), 87 S. W. 
 Rep. 665. 
 
 i Hoitt V. Hoitt, 63 N. H. 475, 56 Am. Rep. 530. 
 946
 
 CH. XXIV.] TITLE BY DEVISE. 644 
 
 sistent with the continued existence of the will, but not ex- 
 pressly intended to revoke the will, or from some subsequently 
 occurring circumstances which the law has declared incom- 
 patible with the will, and which in consequence works a revo- 
 cation. These various modes of revocation will be discussed 
 in tue succeeding paragraphs. 
 
 644. Joint or mutual wills. The only exception to the 
 general revocability of wills occurs in the case of joint or 
 mutual wills. Although these wills were at first looked upon 
 as suspicious and doubtful instruments, they are now recog- 
 nized as valid. Until the death of either party, the will is 
 revocable by either, although such revocation may work a 
 breach of a valid and effective compact. 17 But after the 
 death of one of the testators, the vesting of his part of the will 
 is considered as being so far the part performance of an ex- 
 ecutory contract, as to prevent the revocation of the will by 
 the survivor. 18 
 
 Gould v. Mansfield, 103 Mass. 403 ; Clayton v. Livennan, 2 Dev. & 
 B. 558; Evans v. Smith, 28 Ga. 98; Schumacher v. Schmidt, 44 Ala. 
 454. In Breathitt v. Whittaker, 8 B. Mon. 530, it was held that a joint 
 will could not be revoked at all. 
 
 is Dufour v. Pereira, 1 Dick. 419; Ex parte Day, 1 Bradf. 478; Izard 
 f. Middleton, 1 Desau. 115; Schumacher t'. Schmidt, 44 Ala. 454. By 
 statute, in Iowa, a will can only be revoked by being cancelled or de- 
 stroyed, or by the execution of a subsequent will. Richardson v. Bond, 
 102 N. W. Rep. 128. See, for presentation of a claim due to the 
 devisee, amounting to a revocation, In re Stevens' Will, 94 N. Y. S. 588. 
 " Where a husband and wife adopt an instrument as their will which 
 disposes of the separate but not of the joint property, either may revoke 
 it, in the absence of a valuable consideration to support a contract to 
 dispose of the property in the manner set forth in the will." Buchanan 
 v. Anderson (S. C. 1905), 50 S. E. Rep. 12, 70 S. C. 454. "A will de- 
 vising land in fee is not revoked by a subsequent conveyance of the land 
 to the devisee." Woodward v. Woodward (Colo. 1905), 81 Pac. Rep. 
 322. " Under Civ. Code Ga. 1895, Sees. 3341, 3342, in order to revoke 
 a will executed in Georgia, the revocation must be executed with the 
 same formality and attested by the same number of witnesses as are 
 requisite for the execution of the will." Caatens v. Murray (Ga. 1905), 
 50 S. E. Rep. 131. 
 
 947
 
 G45 TITLE BY DEVISE. [PACT II!. 
 
 645. Revocation by destruction of will. Any burning, 
 cancellation, or other destruction of the instrument, although 
 such destruction be only partial, will be sufficient to revoke a 
 will. All that is necessary is some act conclusive of an inten- 
 tion to destroy it. 19 But the act of destruction must have 
 been done animo revocandi, and it requires just as much ca- 
 pacity of mind to revoke a will as it does to make one. 20 Loss 
 or unintentional destruction of the will or its destruction by 
 a third person without the consent or explicit ratification of 
 the testator, will have no effect upon the force and validity 
 of the will. Provision is always made for the proof by com- 
 petent witnesses of contents of such wills. 21 Not only is the 
 intention to revoke necessary to give to an act of destruction 
 the effect of a revocation, but the act is also necessary. A 
 mere intention to revoke, without doing some act required by 
 law to evince that intention, will not work a revocation; and 
 this is also true, although the execution of the intention to 
 destroy the will has been frustrated by the fraudulent or 
 other interference of a third person. 22 But if the will is 
 proven to have been in the possession of the testator, and 
 there is no evidence to show that he ever gave it into another 's 
 
 i Goods of Frazer, L. R. 2 P. & D. 40; Sweet v. Sweet, 2 Redf. 451; 
 Evan's Appeal, 58 Pa. St. 244; Johnson v. Brailsford, 2 Nott & M. 272; 
 Bohannon v. Wolcot, 1 How. (Miss.) 336; Richardson V. Baird (Iowa), 
 102 N. W. Rep. 128. 
 
 20 Laughton V. Atkins, 1 Pick. 535 ; Smith v. Wait, 4 Barb. 23 ; For- 
 man's Will, 54 Barb. 274; Idley V. Bowen, 11 Wend. 227; Burns v. 
 Burns, 4 Serg. & R. 295; Smock v. Smock, 11 N. J. Eq. 156; Dowler V. 
 Rodes' Admr. (Ky.), 83 S. W. Rep. 115. 
 
 21 Mills v. Millward, 15 Prob. Div. 20; Todd V. Rennick, 13 Colo. 546, 
 22 Pac. Rep. 898; De Groot's Will, 9 N. Y. S. 471. 
 
 22 Clark V. Smith, 34 Barb. 340; Delafield V. Parrish, 25 N. Y. 9; 
 Clingan t>. Mitcheltree, 31 Pa. St. 25; Dunlop v. Dunlop, 10 Watts 153; 
 Mundy v. Mundy, 15 N. J. Eq. 290. See Card v. Grinman, 5 Conn. 
 164; Blanchard v. Blanchard, 32 Vt. 62; Runkle v. Gates, 11 Ind. 95; 
 Smiley v. Gambill, 2 Head 164; Rife's Appeal, 110 Pa. St. 232, 1 Atl. 
 Rep. 226. 
 
 948
 
 CH. XXIV.] TITLE BY DEVISE. 647 
 
 keeping, the fact that it cannot be found raises the presump- 
 tion that the testator destroyed it. 28 
 
 646. Effect of alterations of will after execution. Unless 
 the will is republished and attested again, an alteration in the 
 terms of the will, will not affect the operation of the original 
 provisions ; and if the original terms have not been hopelessly 
 obliterated by the attempted change, the will takes effect as if 
 there had been no alteration. Unless the alteration has been 
 made valid by a re-execution of the will, it cannot have the 
 effect of a partial revocation of the original will. 24 
 
 647. Revocation by marriage and issue. As has already 
 been explained, a single woman could at common law make a 
 will, but a married woman could not. In consequence of this 
 disability upon the married woman, it was held that the will 
 of a single woman was revoked by her subsequent marriage. 25 
 In some of the States married women are permitted to make 
 wills, but in the same States it is generally provided that the 
 husband shall be heir of an intestate wife. It is, therefore, 
 still generally enacted by statute in those States that the sub- 
 sequent marriage of a testatrix will work an absolute revoca- 
 tion of the will. 26 The rule is, however, different in other 
 States, the marriage being held to have no effect on their 
 ante-nuptial wills. 27 But the marriage of a man does not at 
 
 23 Kerrigan v. Hart, 40 Hun 389 ; Bauskett v. Keitt, 22 S. C. 187. 
 
 2* Gardiner v. Gardiner (N. H.), 19 Atl. Rep. 651; Tomlinson's Ap- 
 peal, 25 W. M. C. 447 (Pa.), 19 Atl. Rep. 482. See, In re Hay (Eng. 
 1904), 73 Law J. Ch. 33, 1 Ch. 317. 
 
 25 3 Washburn on Real Prop. 539 ; 4 Kent's Com. 527 ; Forse v. Hem- 
 bling, 4 Rep. 61; Cotter v. Layer, 2 P. Wms. 624; Morton v. Onion, 45 
 Vt. 145; Blodgett v. Moore, 141 Mass. 75. 
 
 20 Statutes of this character are to be found in Alabama, Arkansas. 
 California, Indiana, Missouri, New York and Oregon. 1 Jar. on Wills 
 (5 Am. ed.) 269, Am. note. 
 
 ZTNoyes v. Southworth, 55 Mich. 173, 54 Am. Rep. 359. See, In re 
 Goods of Groos (Eng. 1904), 73 Law J. Prob. 82, 91 Law T. 322. 
 " Where a married woman made a will and the husband died and she 
 
 949
 
 647 TITLE BY DEVISE. [PART III. 
 
 common law revoke his prior will, unless he has issue. The 
 wife. at common law could not be the heir of her husband, 
 and she was considered amply provided for in her dower. 
 There was, therefore, no change effected in the man's circum- 
 stances by his marriage, which would call for a revocation of 
 his will, until issue was born to him. 28 But in a great many 
 of the States the widow is now by statute made an heir to the 
 husband, and, although there are statutes in some of these 
 States expressly declaring a man's will revoked by his sub- 
 sequent marriage, his marriage would revoke the will with- 
 out any express enactment. 29 But the subsequent marriage 
 and having of issue will only work a revocation, as a gen- 
 eral rule, where the testator has not provided in his will for 
 the contingency of his marriage. If he has made provisions 
 for his future wife and children, the will will stand. 30 If a 
 child has been unintentionally omitted from the provisions 
 of a will, it is generally provided by statute that the will will 
 be revoked pro tanto, and the share which this child would 
 have received of his father's estate, had he died intestate, will 
 be given to it. 31 But a testator may disinherit a child if he 
 wishes, and it may be shown by parol that the omission of his 
 name was intentional. 32 But in some of the States it is held 
 that the intention to disinherit cannot be shown by parol evi- 
 
 subsequently remarried, the will was revoked under Civ. Code Ga. 1895, 
 Sec. 3347." McWhorter v. O'Neal (Ga. 1904), 49 S. E. Rep. 592. 
 
 28 Warner v. Beach, 4 Gray 162; Havens v. Van den Burgh, 1 Denio 
 27; Tomlinson V. Tomlinson, 1 Ashm. 224; McCullum v. McKenzie, 26 
 Iowa 510; Carey v. Baughn, 36 Iowa 542. 
 
 28 See Walker v. Hall, 34 Pa. St. 483 ; Am. Board v. Nelson, 72 111. 
 564. 
 
 so Wheeler v. Wheeler, 1 R. I. 364; Miller v. Phillips, 9 R. I. 141; 
 Warner v. Beach, 4 Gray 162; Bush v. Wilkins, 4 Johns. Ch. 506; Ha- 
 vens v. Van den Burgh, 1 Denio 27; Deupree v. Deupree, 45 Ga. 415; 
 Yerby v. Yerby, 3 Call 334. 
 
 si In re Grider's Estate, 81 Cal. 571, 22 Pac. Rep. 908. 
 
 32Doane v. Lake, 32 Me. 268; Wilson v. Fosket, 6 Mete. 400; Ban- 
 croft v. Ives, 3 Gray 367; Ramsdill v. Wentworth, 101 Mass. 122; 
 Buckley v. Gerard, 123 Mass. 8; Conlam v. Doull, 4 Utah 267, 9 Pac. 
 Rep. 568, 133 U. S. 216. 
 950
 
 CH. XXIV. ]j TITLE BY DEVISE. 648 
 
 dence, and that the intention must be gathered from the will. 33 
 There are similar statutory rules in most of the States, pro- 
 viding for a partial revocation of a will in favor of posthu- 
 mous children. But if the testator manifests an intention to 
 disinherit posthumous children, as well as others, they cannot 
 make any claim to a revocation of the will under these stat- 
 utes. 34 But in all the cases of revocation by marriage and 
 birth of issue the rule only applies to wills, which dispose of 
 the testator's own property. It does not apply to wills exe- 
 cuted under a power of appointment, disposing of property 
 which the wife or children of the testator could under no 
 circumstances inherit. 35 
 
 648. Revocation by alteration or exchange of property. 
 If the testator disposes of the property devised by alienation 
 inter vivos, it will, of course, revoke the devise. 38 And this 
 is also the rule in equity, where the testator has contracted to 
 sell, but has made no conveyance ; that is, if specific perform- 
 ance of the contract is asked for and granted : but subject to 
 the vendee's right to specific performance, the devise will 
 nevertheless take effect. 37 But although, under the old Eng- 
 
 33 Chace v . Chace, 6 R. I. 407 ; Pounds v. Dale, 48 Mo. 270 ; Estate 
 of Garrand, 34 Cal. 336; In re Steven's Estate, 83 Cal. 322, 23 Pac. 
 Rep. 379. See, Olcott v. Tope, 115 111. App. 121, 213 111. 124, 72 N. E. 
 Rep. 750. 
 
 34Osborn v. Jefferson Bank, 116 111. 130. 
 
 asLoring v. Marsh, 6 Wall. 337; Blagge V. Miles, 1 Story 426; Wilder 
 v. Thayer, 97 Mass. 439; Brush v. Wilkins, 4 Johns. Ch. 506; Havens 
 v. Van den Burgh, 1 Denio 27; Burch v. Brown, 46 Mo. 441; Schneider 
 v. Koester, 54 Mo. 500 ; Bresee V. Stilas, 22 Wis. 120 ; Estate of Utz, 43 
 Cal. 200. 
 
 3Bosley V. Bosley, 14 How. 390; Brown v. Thorndike, 15 Pick. 388; 
 In re Van Mickel, 14 Johns. 324; McNaughton v. McNaughton, 34 N. 
 Y. 201; .Brush v. Brush, 11 Ohio 287; Floyd v. Floyd, 7 B. Mon. 290; 
 Wells v. Wells, 35 Miss. 638. See contra, Woodward v. Woodward 
 (Colo. 1905), 81 Pac. Rep. 322. 
 
 " 4 Kent's Com. 527 ; Darley v. Darley, Wils. 36 ; Walton v. Walton, 
 7 Johns. Ch. 258; Kean'a Case, 9 Dana 25; Chadwick v. Tatem (Mont.), 
 23 Pac. Rep. 729. 
 
 951
 
 649 TITLE BY DEVISE. [PART III. 
 
 lish rule concerning after-acquired property, the rule might 
 be different, it is now held that the subsequent conveyance 
 of the land to the testator will revive the devise without any 
 formal republication. 38 Not only does the actual conveyance 
 of the land revoke a devise, but it has also been held that an 
 unsuccessful or void conveyance will have the same effect as 
 indicating an intention to revoke the devise. 39 
 
 This rule would hardly be followed at the present day. 
 The revocation by exchange or sale of the property devised 
 is only implied from the act of sale ; and implications are never 
 permitted to operate beyond what is made necessary by the 
 act, which gives rise to the implication. If, therefore, an at- 
 tempted conveyance fails, it should not operate as a revoca- 
 tion of the devise. 40 But these acts will not in any case con- 
 stitute a revocation of the will itself ; their only effect will be 
 upon the particular devise. 41 
 
 649. Revocation by subsequent will or codicil. A will 
 may also be revoked by a subsequent will or codicil. A codi- 
 cil is nothing more than a supplementary will, and only re- 
 vokes the will pro tanto. A subsequent will or codicil may 
 revoke the prior will by implication, where the two are incon- 
 sistent and cannot stand together; or the testator may in his 
 subsequent will expressly declare the prior will revoked. And 
 in the absence of an express revocation the prior will will be 
 revoked only as to those provisions, which are inconsistent 
 with the dispositions made in the subsequent will or codicil. 42 
 
 38 Brown V. Brown, 16 Barb. 569; Woolery v. Woolery, 48 Ind. 523. 
 
 39 3 Washburn on Real Prop. 538, 539; 4 Kent's Com. 529. 
 
 40 Morey v. Sohier, 63 N. H. 507, 56 Am. Rep. 538. 
 
 41 Hoitt v. Hoitt, 63 N. H. 475, 50 Am. Rep. 530. 
 
 <2 Pickering v. Langdon, 22 Me. 413; Brant v. Wilson, 8 Cow. 56 ; 
 Van Vechten v. Keator, 63 N. Y. 52; Smith v. McChesney, 15 N. J. 
 Eq. 359; Bartholomew's Appeal, 75 Pa. St. 169; Boudinot V. Bradford, 
 2 Ball. 266; Petters v. Fetters, 4 McCord 151; Brownfield v. Wilson, 78 
 111. 467; Bobb's Succession (La.), 7 So. Rep. 60; Sturgis v. Work, 122 
 Ind. 134, 22 N. E. Rep. 996. See, In re Stratum's Will, 94 N. Y. S. 
 952
 
 CH. XXIV.] TITLE BY DEVISE. 650 
 
 And the burden is upon the one opposing the earlier will to 
 show that the testator intended to revoke it. 43 Of course, an 
 instrument which is strictly a codicil, could only revoke ex- 
 pressly or by implication some provision of the will to which 
 it is annexed. There could not be an express revocation of 
 the entire will, for such a provision would make such a 
 "codicil" an independent will. 44 Where the prior will is 
 only revoked by the subsequent will by implication from the 
 inconsistency of its clauses, revocation by destruction of the 
 second will will revive the prior will without any former re- 
 publication. 46 But if the prior will has been cancelled, or is 
 revoked by express declaration, a republication as formal as 
 the original execution is generally necessary to revive it. 4 * 
 But it has been generally held that the execution of a codicil, 
 containing an express reference to the prior will, is a suffi- 
 cient republication to bring the prior will into active opera- 
 tion again from the time, when the codicil was executed. 47 
 
 650. Defective will confirmed by codicil. Where the codi- 
 cil refers to and recognizes the existence of a will which has 
 
 588; Woodward v. Woodward (Colo.), 81 Pac. Rep. 322; Castens v. 
 Murray (Ga.), 50 S. E. Rep. 131. 
 
 < s Richards v. Queen's Proctor, 18 Jur. 540; Leslie V. Leslie, 6 Ired. 
 Eq. 332. 
 
 "Gelbke V. Gelbke, 88 Ala. 427, 6 So. Rep. 834. 
 
 45 4 Kent's Com. 528 ; 3 Washburn on Real Prop. 540 ; Brown v. 
 Brown, 8 E. & B. 876; Wood V. Wood, L. R. I. P. & D. 309; Bobannon 
 1?. Walcot, 1 How. (Miss.) 336. In New York, Obio, Indiana, Missouri 
 and Arkansas the prior will can only be revived by republication in any 
 case. 3 Washburn on Real Prop. 542, note. 
 
 46 James v. Marvin, 3 Conn. 576; Rudisiles v. Rodes, 29 Gratt. 147; 
 Bohannon v. Walcot, 1 How. (Miss.) 336; Beaumont v. Keim, 50 Mo. 
 28. Contra, Lawson v. Morrison, 2 Dall. 286. See, Taylor v. Taylor, 2 
 Nott & M. 482. 
 
 47 Havens v. Foster, 14 Pick. 534; Mooers v. White, 6 Johns. Ch. 
 375; Van Cortlandt v. Kip, 1 Hill 590; Jones v. Jones, 1 Gill 395; 
 Rose v. Drayton, 4 Rich. Eq. 260; Jones v. Shewmake, 35 Ga. 151; 
 Stover v. Kendall, 1 Coldw. 557; Barker v. Bell, 46 Ala. 216; Armstrong 
 v. Armstrong, 14 B. Mon. 333. 
 
 953
 
 652 TITLE BY DEVISE. [PART m. 
 
 been defectively executed, or which has been altered after its 
 execution, it has been held that such adoption of the will by 
 the codicil renders it a valid testament as it stood on the date 
 of the execution of the codicil. 48 
 
 But it has been held that the will must have been signed or 
 acknowledged by the testator in order that it may be validated 
 by a codicil. The mere reference to a written instrument by 
 what purports to be a codicil will not make it a valid will, if 
 it is not signed or acknowledged by the supposed testator or 
 written by him. 49 
 
 651. Contingent wills. In connection with the subject of 
 revocation, it may be well to state something concerning con- 
 tingent wills. A will can be made to take effect or to fail 
 upon the happening of the contingency. A common case is a 
 will made expressly, to take effect only upon the death of the 
 testator away from home or while on a journey. If the tes- 
 tator survives the contingency, the will cannot be admitted to 
 probate. 50 
 
 652. Probate of will. In the States of this country, 
 different from the old English law, it is provided that wills 
 of real property shall be admitted to general probate, and 
 when they have been admitted, and placed on record, the 
 probated will becomes conclusive evidence of its own proper 
 execution in any case arising collaterally in another court. 51 
 
 Burge v, Hamilton, 12 Ga. 568; Anderson v. Anderson, L. R, 13 
 Eq. 381; Mooera v. White, 6 Johns. Ch. 360; Van Cortlandt v. Kip, 1 
 Hill 590. 
 
 4 Sharp v. Wallace, 83 Ky. 584. 
 
 so In re Porter, L. R. 2 P. & D. 22 ; Lindsay v. Lindsay, L. R. 2 P. & 
 D. 459; Tarver v. Tarver, 9 Pet. 174; Ritter's Appeal, 59 Pa. St. 9; 
 Wagner v. McDonald, 2 Har. & J. 346; Jacks v. Henderson, 1 Desau. 
 543; Maxwell, 3 Mete. (Ky.) 101. But see contra, Damon v. Damon, 8 
 Allen 192. 
 
 "3 Washburn on Real Prop. 508; 1 Greenl. on Ev., Sec. 518. See, 
 In re Goods of Schenley (Eng. 1904), 20 Law T. R. 127; Vernon v. 
 Vernon (N. J. 1905), 61 Atl. Rep. 409. "A proceeding in the probate 
 954
 
 CH. XXIV.] TITLE BY DEVISE. 653 
 
 It is also provided by the Statutes of Probate that a copy 
 of the will certified by the judge of probate or his clerk is 
 competent evidence of its contents. The old English law only 
 provided for the probate of wills of personal property. 
 
 653. Agreements as to testamentary disposition of property. 
 Very often agreements are made by the owners of property 
 with others, to the effect that, if the latter perform certain 
 duties or render certain services to them, they will make some 
 testamentary provision in behalf of the person who agrees to 
 render the service. If the services are rendered, the agree- 
 ment will be enforced by the courts after the testator's death 
 against his estate if he has refused or failed to make the tes- 
 tamentary provision. 52 But the agreement must fee clearly 
 proven, and be a valid contract, in order that it may be en- 
 forced by the courts in opposition to the will. 53 
 
 court to establish a will does not come within the category of a civil 
 action, but is a special proceeding, though the latter is not defined in 
 the statute." Lanning v. Gay (Kan. 1904), 78 Pac. Rep. 810. 
 
 52 Lee's Appeal, 53 Conn. 363; Schutt v. Meth. Epis. Missionary Soc., 
 41 N. J. Eq. 115; McKeegan v. O'Neill, 22 S. C. 454; Whetstine v. Wil- 
 son, 104 N. C. 385, 10 S. E. Rep. 471; Andrews V. Brewster, 9 N. Y. S. 
 114. In re Lewallen's Est., 27 Pa. Sup. Ct. 320. 
 
 Davis v. Hendricks, 99 Mo. 478, 12 S. W. Rep. 887 ; Snyder v. 
 Snyder (Wis.), 45 N. W. Rep. 818. "A man or a woman may enter 
 into a binding contract to dispose by will in a particular manner of 
 the whole or any part of his or her property, real or personal. Such 
 a contract must, of course, be based on sufficient consideration." In re 
 Lewallen's Estate, 27 Pa. Super. Ct. 320. " Oral and written state- 
 ments made by an owner that he intended his farm for his sister, and 
 that he would will the same to her, 'merely show an intention to make 
 a gift, unenforceable after his death." Mitchell v. Pirie (Wash. 1905), 
 80 Pac. Rep. 774. " A bequest of property in trust is not a substantial 
 compliance with a contract to bequeath it absolutely." Earnhardt v. 
 Clement (N. C. 1904), 49 S. E. Rep. 49. "An agreement whereby a 
 father was to convey a farm to his son in consideration of the latter's 
 remaining at home and managing the farm was broken by the conduct 
 of the son in leaving the farm and removing to another locality." 
 Eastwood v. Crane (Iowa 1904), 101 N. W. Rep. 481. 
 
 955
 
 CHAPTER XXV. 
 
 
 
 REGISTRATION OF TITLES. 
 
 SECTION 654. History of legislation regarding. 
 
 655. Object of statutes providing for. 
 
 656. Constitutionality of statutes concerning. 
 
 657. Registrars and examiners provided. 
 
 658. How land is brought under statute. 
 
 659. Proceedings before examiner. 
 
 660. Jurisdiction and power of the court. 
 
 661. Effect of registration. 
 
 662. Conveyances under the Torrens law. 
 
 663. Death of owner Transmission of land. 
 
 664. Judgments, liens and assessments against land. 
 
 665. Relief against arbitrary power of registrar. 
 
 666. Indemnity and procedure to recover. 
 
 667. Advantages and objections to title registration. 
 
 654. History of legislation regarding. The registration 
 of titles to real estate, carried out by legislative acts, pro- 
 viding either for the optional or compulsory examination of 
 the title and recording of the examiner's certificate, or the 
 adjudication as to the title, if same is determined by judicial 
 inquiry, together with all subsequent transfers or claims, 
 effecting the title, has been in vogue, in one form or another, 
 in some of the European countries for several centuries. 1 The 
 system of registration of land titles, in English-speaking 
 countries, is generally known as the "Torrens System," so 
 called from Sir Robert Torrens, who, in 1858, prepared the 
 
 i " In Austria-Hungary registration dates from the twelfth century. 
 In Baden, the system dates from 1809 ; in Saxony, from 1843." " Reg- 
 istration of title was made universal in Austria, in 1811; in Hungary, in 
 1849, and in Prussia, in 1872." Sheldon's Land Registration, p. 112, 
 Report, Fortescue to British Gov. on Land Registration in Germany 
 and Austria-Hungary, 31 Am. Law Review 827. 
 956
 
 CH. XXV.] REGISTRATION OF TITLES. 655 
 
 first law enacted in Australia. 2 The success of the Torrens 
 System, in Australia, was so pronounced, that in the next 
 succeeding years, up to and including 1885, most of the Eng- 
 lish colonies adopted similar or dissimilar legislation, pro- 
 viding for the registration of land titles. 3 As originally 
 adopted in England, the registration of titles to real estate 
 was optional with the owner, 4 but this law met with such op- 
 position from the legal profession and the citizens generally 
 that in 1897 the present Land Transfer Act was passed, 
 which, with the successive acts, established compulsory regis- 
 tration of land titles, in England. Illinois was the first of 
 the United States to adopt a title registration law, 5 but the 
 adoption of such a system was agitated in Massachusetts even 
 before the law was passed in Illinois, 6 and laws providing for 
 the registration of titles to land have since been adopted in 
 California, 7 Masachusetts, 8 Minnesota 9 and Ohio. 10 
 
 655. Object of statutes providing for. It cannot well be 
 doubted, by any one familiar with the examination of titles, 
 that there are obstacles to be encountered from a perusal of 
 the records of the successive deeds and muniments pf title, 
 by the paid examiner of the title to be passed on the occasion 
 of each transfer, not only because of the liability to overlook 
 some record essential to the title, but also because the validity 
 
 231 Am. Law Rev. 827, Sheldon Land Reg., p. 114. 
 
 s Queensland 1861, New South Wales 1862, New Zealand 1870, West 
 Australia 1874, British Columbia 1870, Manitoba and Ontario 1885, 
 Sheldon Land Reg., p. 114. 
 
 Westbury Act 1862, Cairns Act 1875. 
 
 s Originally passed as " An act concerning land titles," June 13, 1895 ; 
 re-enacted and amended May 1, 1897. 
 
 In his inaugural address and message to the legislature, in 1891, 
 Gov. Russell recommended the law providing for registration of titles, 
 in Massachusetts. 
 
 T The law was passed in California in 1897. 
 
 s Finally adopted in Massachusetts in 1898. 
 
 Gen. Laws Minn. 1901, p. 348, c. 237. 
 
 10 Adopted in Ohio in 1896, but held invalid by Supreme Court, in 
 State v. Guilbert, 56 Ohio St. 575. 
 
 957
 
 656 REGISTRATION OF TITLES. [PART III. 
 
 of the title so often depends upon facts or proceedings not 
 shown by the records at all. This insecurity to the land- 
 owner, resulting from the practical inability of the title ex- 
 aminer, where records of conveyances and facts, not of record, 
 determines the validity of the ownership, to vouchsafe a mar- 
 ketable title, in all cases, and the expense and delay incident 
 to the re-examination of the deeds, records, abstracts or muni- 
 ments of title, with every recurring conveyance or incum- 
 brance of the land, are some of the reasons which gave rise 
 to the legislation providing for registration of titles, com- 
 monly known as the Torrens System. Under this and similar 
 laws for the registration of land titles, the official examina- 
 tion of the title, substituted for the unofficial examination 
 otherwise obtaining, is given conclusive effect, in favor of the 
 owner ; his title is given the permanent character of an official 
 determination, equivalent to a decree of court. All known 
 and unknown adverse interests, under proper legal notice, are 
 determined and, as all subsequent proceedings, acts and con- 
 veyances effecting the title are noted by the registrar, upon 
 the certificate of record, the condition of the title can be more 
 speedily' ascertained and the indefeasible character of the 
 certificate of title issued by the States, guarantees the land- 
 owner greater security, at a less cost, than under the system 
 of registering only deeds, and other evidences of title or 
 claim, regardless of other objections that may be urged 
 against a system of title registration. 11 
 
 656. Constitutionality of Statutes concerning. Since the 
 determination of the title, on the part of the examining officer, 
 under the Torrens Act, to carry any peculiar benefits as a 
 result of the investigation, must be given the character of 
 indefeasibility, it may well be doubted if such power, in the 
 determination of adverse claims end property rights, under 
 
 ii Record of Title to Land, by H. W. Chaplin, 6 Harv. L. Rev. 302 
 reply to criticism of Torrens' System, 7 Harv. L. Rev. 24; Australian 
 System of Land Transfers, 32 Cent., L. J. 160. 
 958
 
 CH. XXV.] REGISTRATION OF TITLES. 6C3 
 
 the system of organic law such as obtains generally in the 
 United States, can be legally exercised by other than a regu- 
 larly constituted court, acting in pursuance of "due process 
 of law. ' ' To give such power to other than a judicial officer, 
 clothed with the power of the judgment seat, would seem to 
 be counter to the direct mandate of the United States Con- 
 stitution and the constitutions of the different States. 12 
 
 This identical question was passed upon by the Supreme 
 Court of Illinois, and the first Title Registration Act of that 
 State was held unconstitutional because it conferred judicial 
 powers upon the registrar. 13 This difficulty was obviated in 
 the second act, passed the year following, by a provision for 
 the determination of the title by a decree in equity, by a 
 legally constituted court, after legal notice, which decree, 
 instead of the non-judicial finding of the registrar, was made 
 the basis of the initial registration. The act last referred to 
 is the present "Torrens Law" in effect in Illinois, and the 
 Supreme Court of the State has upheld its constitutionality, 14 
 as did the Supreme Court of Massachusetts, in the considera- 
 tion of a similar act. 15 As before observed, 16 the power of the 
 
 12 " Chapter 237, Laws Minn. 1901, providing for the Torrens System 
 of registering land titles, is not unconstitutional in that it is special 
 legislation; nor in that it deprives the owner of his interest in land 
 without due process of law; nor in that it violates article 3 of the con- 
 stitution, vesting the powers of government in three distinct depart- 
 ments; nor in that examiners of title provided for by the act are ap- 
 pointed by the court, and not elected as county officers are required to be 
 by Sec. 4, Art. 11, Const." State v. Westfall (1902), 89 N. W. Rep. 175. 
 
 is People V. Chase, 165 111. 526. See, also, for opinion holding Ohio 
 Act invalid, State v. Guilbert, 56 Ohio St. 575. 
 
 i* People v. Simon, 176 111. 165, Sheldon Land Reg., p. 2. 
 
 18 Tyler v. Judges, 175 Mass. 71. 
 
 i Ante, Sec. 19. " In the case of State v. Guilbert, 56 Ohio St. 575, 
 47 N. E. Rep. 551, 60 Am. St. Rep. 756, the attempt at transplanting 
 the Torrens System into Ohio soil was rudely nipped in the bud, the 
 court assigning as its principal grounds of objection that the act failed 
 to provide for proper service upon adverse claimants residing within 
 the jurisdiction, and that it attempted to confer judicial power upon a 
 county recorder, a purely ministerial officer. It seems from the view 
 
 959
 
 656 REGISTRATION OF TITLES. [PART III. 
 
 State to regulate the terms upon which real property within 
 its borders shall be held, as well as the means of acquisition 
 and transfer, is undoubted, 17 and hence it has been argued 
 that no constitutional objection could be urged in the United 
 States against compulsory registration of titles, before per- 
 mitting a sale or transmission by devise or descent. 18 But 
 any limitation upon the power of alienation would certainly 
 be counter to the settled legislative policy in the United 
 States and the spirit of the age, which brooks no restraint 
 upon the power of the citizen to alienate his property, and 
 although perhaps not opposed to the strict letter of any con- 
 stitutional provision, it is doubtful if such an enlargement of 
 
 which the court takes of the provision for notice, only those parties 
 named by the applicant as adverse were to be served, and these, if they 
 lived without the county, were to be served by mail. The court said on 
 this point : ' One known to claim the title in fee-simple adversely to 
 the applicant need not be named, though his place of residence may 
 be within the county and known. ... Is this such notice as the 
 law of the land requires to be given to persons claiming interests in 
 property of the pendency of a judicial proceeding, in which such inter- 
 ests are to be the subject of adjudication, and in which, unless they ap- 
 pear, a decree will be entered precluding their further assertion.' The 
 court holds in this connection that the proceeding for initial regiBtra- 
 tion partakes much of a bill to quiet title, but that it is in no sense 
 an action in rem, giving the legislature the right to prescribe such no- 
 tice as is appropriate to such proceedings. After considering the act 
 in these particulars the court launches into a general diatribe of its 
 other provisions. The provision for an assurance fund is handled very 
 gingerly. ' It is not likely,' the court says, ' that the legislature has 
 thought itself authorized to provide for making whole those who have 
 been defeated in judicial proceedings of an adversary character, involv- 
 ing only private rights, and conducted according to the law of the land. 
 The terms of these sections of the act show that the fund is to be 
 raised to indemnify those whose lands have been wrongfully wrested 
 from them without due process of law. When the provisions of the 
 Constitution are applied to this penitential scheme, it at once becomes 
 apparent that it is both inadequate and forbidden.' " 54 Cent. L. J. 
 294. 
 
 IT This observation is quoted from the text by the Sup. Ct. of Illinois, 
 in People v. Simon, 176 111. 176. 
 
 is Sheldon Land. Reg., p. 82. 
 960
 
 CH. XXV. J REGISTRATION OF TITLES. 658 
 
 the title registration law, in the United States, would popu- 
 larize the legislation. 19 
 
 657. Registrars and examiners provided. Under the Illi- 
 nois and similar title registration acts, the county recorders, 
 or other custodians of the records, are made ex-officio regis- 
 trars of land titles, on account of their free access to the 
 records of conveyances and, generally, such officers are not 
 permitted to sell or otherwise dispose of their official informa- 
 tion as to land titles, coming under their observation. They 
 are generally. required to give bond for the faithful discharge 
 of their own and their deputies' duties, as registrars of titles 
 and are disqualified from practicing law, or from being di- 
 rectly or indirectly associated with a practicing lawyer, while 
 acting as registrar of land titles. 20 The appointment, by the 
 registrar or other authority, of one or more competent law- 
 yers, as title examiners, is provided for, who, like the regis- 
 trar, is also a bonded officer and, on grounds of public policy, 
 is prevented by law from practicing his profession or profit- 
 ing in any manner from his official information. 21 
 
 658. How land is brought under statutes. Generally the 
 owner of any estate or interest in land, whether legal or 
 equitable, may apply under the Torrens System for the regis- 
 tration of title to any land situated in the county, where the 
 application is made. The application may be made either in 
 person or by counsel, a corporation applying by its agent and 
 an infant or other person under disability, by his guardian. 
 
 10 Although such an encroachment might run the gamut of the courts, 
 it might condemn an otherwise beneficent law in framing of public 
 opinion. The only legal way to meet the just constitutional objection 
 urged to the Ohio and first Illinois statutes, against conferring judicial 
 functions on non-judicial officers, is to establish a regular court of land 
 registration, such as is provided in the M n ssachusetts act. 
 
 20 Kurd's Rev. St. 111. Ch. 115, Sees. 21, 25; Gen. Laws Minn. 1901, 
 p. 348, c. 237. 
 
 21 Ante, idem. 
 
 61 901
 
 658 REGISTRATION OP TITLES. [PART III. 
 
 Usually, the fee-simple title is first required to be registered 
 It is no objection to the registration of the fee that a lesser 
 title or estate may be outstanding, if admitted by the owner, 
 but the fact is only noted on the certificate of title. But if 
 there are adverse claims or interests, disputed by the applicant, 
 these 1 are required to be contested and the parties brought in 
 and the claims adjudicated before initial registration is had. 22 
 No title based on a tax deed or similar assessment is admitted 
 to registration without bringing in the holder of the patent 
 title or those claiming under him, and no tax title is entitled 
 to be registered until an adjudication that it is superior to 
 the patent title, by adverse possession for the statutory period, 
 or other facts showing a superior title in the claimant. 23 The 
 
 22Hurd's Rev.' St. 111. Ch. 115, Sec. 9; Sheldon Land Reg., p. 2L 
 " It is not the duty of the court, when making an order for the issu- 
 ance of summons in proceedings under the Torrens act (Laws Minn. 
 1901, p. 348, c. 237), to investigate and name defendants, or prescribe 
 who shall be named as defendants." Dewey V. Kimball, 95 N. W. Rep. 
 317, rehearing in part granted. Id. (Minn. 1903), 895. "In proceed- 
 ings under the Torrens act (Laws Minn. 1901, p. 348, c. 237), the 
 applicant cannot, in taking the steps provided for by Sections 18, 19, 
 relating to the issuance of summons and the necessary parties defend- 
 ant, ignore the report and advice of the examiner as to what parties or 
 persons should be made defendants." Dewey v. Kimball, 95 N. W. Rep. 
 317. "The provision in Torrens act (Laws Minn. 1901, p. 353, c. 237), 
 Sec. 10, in respect to who shall be defendants in the procedure, is 
 mandatory and a failure to follow the advice and report of the exam- 
 iner amounts to a failure to observe this provision, and renders any 
 judgment thereafter entered invalid and void for want of jurisdiction 
 over the person or party named." Ante, idem. 
 
 23 " In a proceeding for the registration of title, the burden is on 
 defendant to show the validity of tax deeds under which defendant 
 claimed an interest in the property." Glos. v. Talcott (111. 1904), 72 
 N. E. Rep. 707, 213 111. 81. " Evidence that plaintiff went into actual 
 possession of premises, the title to which she sought to register, under 
 claim and color of title, made in good faith, in the year 1891, and con- 
 tinued in possession to the filing of her application on June 3, 1901, with 
 proof of the payment of taxes for each year from 1891 to 1901, in the 
 absence of other evidence, was .sufficient proof of title in fee." Glos V. 
 Mickow (111. 1904), 71 N. E. Rep. 830, 211 111. 117. "Where, in a pro- 
 ceeding for the registration of plaintiff's title to certain real estate, 
 962
 
 CH. XXV.] REGISTRATION OF TITLES. 659 
 
 form and contents of the application for registration differs, 
 under the various statutes, which should be consulted in each 
 instance in the preparation of an application for registration. 
 It is essential, however, that the application should contain 
 the names of all parties claiming adverse interests or claims, 
 desired to be extinguished in the initial registration, for all 
 such to be legally effected by the decree effecting their inter- 
 ests, must be duly notified, as in the service of other character 
 of legal process. 24 
 
 659. Proceedings before examiner. Upon the filing of the 
 application for registration the same is usually referred to 
 the examiner, who proceeds to examine into the title and to 
 investigate the truth of the facts alleged in the application. 
 If the land is occupied, the nature and right to the possession 
 is inquired into and a full report of his proceeding is trans- 
 mitted to the court. 25 He is usually given power to compel 
 the attendance of witnesses, and to administer oaths and ex- 
 amine witnesses; his duties are similar to those of a referee 
 in chancery and the proceedings before the examiner, in 
 Illinois, are so far held to be under the direction pf the court 
 
 plaintiff produced evidence establishing title in him, the burden was on 
 a party claiming title under a tax deed to establish the validity of 
 such deed." Glos v. Hoban, 72 N. E. Rep. 1, 212 111. 222. 
 
 24 " Act May 1, 1897, establishing the Torrens System of land titles, 
 at Section 13, prescribes the form in which an application for the regis- 
 tration of a fee simple title shall set out the interest to adverse claim- 
 ants. Section 15 Provides that the court may quiet titles in such pro- 
 ceedings. Held, that an application in the prescribed form was a suffi- 
 cient pleading to put in issue the validity of an adverse tax title." Gage 
 v. Consumers' Electric Light Co., 64 N. E. Rep. 653, 194 111. 30. " In 
 publishing the summons provided for in Laws Minn. 1901, p. 384, c. 
 237, known as the ' Torrens Act,' a compliance with the provisions of 
 Sec. 20, p. 353, of such act, providing that summons shall be served 
 upon nonresidents and unknown defendants by publication in the news- 
 papers, is sufficient, without following the provisions of Gen. St. 1894, 
 Sec. 5204." Dewey v. Kimball (Minn. 1903), 96 N. W. Rep. 704; Same 
 v. National Bond & Security Co., Id. 
 
 25 Kurd's Rev. St. 111. Ch. 115, Sec. 18. 
 
 963
 
 6GO REGISTRATION OF TITLES. [PART HI. 
 
 as to be, in fact, proceedings in chancery. 26 The same rules 
 and principles of law that obtain in the trial of civil cases, so 
 far as appropriate, apply to proceedings in determining titles 
 under the Torrens Act. 27 The examiner investigates each 
 title independently of the evidence submitted by the appli- 
 cant, both as to record matters and facts outside the record. 
 If the title is unfit for registration the application is dis- 
 missed without prejudice, but if the examiner finds a mar- 
 ketable title in the applicant, his report to the court so states 
 and a decree is accordingly rendered, establishing, for all 
 time, the title of the applicant. 28 
 
 660. Jurisdiction and power of the court. To carry out 
 the objects of the law it is essential that the court should have 
 power to inquire into the condition of the title and of any 
 interest in the land, or any lien or incumbrance thereon and to 
 make all such orders and judgments as may be necessary to 
 determine, establish and declare the title or interest, whether 
 legal or equitable, as against all persons, and to consider all 
 liens and incumbrances and to declare the order of same and 
 to remove clouds from title and perform such other chancery 
 powers as are essential to the full consideration and determi- 
 nation of the title submitted to it for adjudication. 29 The 
 court is generally authorized to find and decree in whom 
 
 ze People v. Simon, 176 111. 165; Rogers T. Taylor, 144 111. 652; Shel- 
 don Lang Reg., p. 27. 
 
 27 " In proceedings under Torrens act for land transferred, all rules 
 and principles of law applicable to rights in real property and rules of 
 practice with reference to the trial of civil actions in so far as appro- 
 priate, or not provided for, should be followed." Owsley V. Johnson 
 
 (Minn. 1905), 103 N. W. Rep. 903. "Objections to the admission of 
 evidence on a hearing before an examiner of titles for registration can- 
 not be reviewed on appeal unless incorporated in exceptions to the mas- 
 ter's report and renewed in the trial court." Glos v. Hoban (111. 1904), 
 72 N. E. Rep. 1, 212 111. 222. 
 
 28 People v. Simon, 176 111. 165 ; Sheldon Land Reg., pp. 27, 28. 
 
 2 See Kurd's Rev. St. 111. Ch. 115, Sec. 15. "Gen. Laws Minn. 1901, 
 p. 348, c. 237, known as the 'Torrens Act,' was intended to provide a 
 
 964
 
 CH. XXV.] REGISTRATION OF TITLES. 661 
 
 the title to or any interest in the land is vested; to remove 
 clouds from the title and to determine the validity and order 
 of incumbrances ; to order the registrar to record such title 
 or interest and the liens or claims to which it is subject and 
 to make such further orders, as may be according to the 
 equities of the parties and the condition of the record shall 
 justify. 30 This decree is the basis of the initial registration 
 of title, and all persons holding adverse claims or interests 
 are barred, after a given tinie, under most statutes, if they 
 fail to give notice or assert their claims. 31 
 
 661. Effect of registration. As a general rule, to give 
 proper force to the registration of a title, under the Torrens 
 Law, the certificate of title relates back to and takes effect as 
 of the date of the decree ; 32 all subsequent liens are entered 
 subject to the decree and before the expiration of the period 
 for contest of the adverse title the certificate of registration is 
 taken as prima facie evidence of a full compliance with the 
 law and that the title of the owner is as certified to and after 
 
 speedy method of determining rights in real property, and to authorize 
 the court to determine controversies respecting title, and by decree de- 
 clare the title, rights, and interests of interested parties." Reed r. 
 Siddall, 102 N. W. Rep. 453. "Under Gen. Laws Minn. 1901. p. 348, 
 c. 237, known as the ' Torrens Act,' the court has no power to foreclose 
 mechanics' liens, but only to determine the existence and validity 
 thereof." Reed v. Siddall (Minn. 1905), 102 N. W. Rep. 453. "In 
 proceedings under the Torrens act (Gen. Laws. 1901, p. 348, c. 237), to 
 register title, the burden of proof is on the party asserting a mechanics* 
 lien to prove that at the time of the trial the lien was a valid one.'* 
 Reed v. Siddall (Minn. 1905), 102 N. W. Rep. 453. 
 
 aoRurd's Rev. St. 111. Ch. 115, Sec. 25; Sheldon Land Reg., p. 32; 
 Reed v. Siddall (Minn. 1905), 102 N. W. Rep. 453. 
 
 si Kurd's Rev. St. 111. Ch. 115, Sees. 27, 28. "Where the examiner 
 in a petition under the Torrens Law suggests that a certain parly 
 named be made a defendant, but the suggestion is not observed, the 
 judgment thereupon entered is invalid and void as against such party, 
 and all persons in privity with him, not defendants in the proceeding.'* 
 Judgment, 95 N. W. Rep. 317, affirmed on rehearing. Dewcy v. Kimball, 
 96 N. W. Rep. 704; Same v. National Bond & Security Co., Id. 
 
 szHurd's Rev. St. 111. Ch. 115, Sec. 38. 
 
 965
 
 G62 REGISTRATION OF TITLES. [PART III. 
 
 the expiration of such period the registrar's certificate is con- 
 clusive evidence of these facts. 88 
 
 The owner holds his title subject to the liens, estates or 
 incumbrances noted in the certificate of title and subject to 
 other possessions, private and public easements, tax assess- 
 ments and contests as may be filed within the period limited 
 for such claims, 34 but otherwise the certificate of registra- 
 tion is free from other claims. 
 
 After registration of a title no possession, for however long 
 a period, unless noted on the certificate of title, can ripen 
 into an adverse claim, 35 and all unregistered trusts, claims 
 or liens are absolutely, void as against a subsequent purchaser 
 of the land, 36 and thus the principle of immunity is afforded 
 the owner and purchaser, perhaps to a fuller extent than by 
 any other method known to the law. The registration im- 
 plies an agreement or covenant running with the land, that 
 the same shall be subject to the terms of the law, in every 
 respect, and* all subsequent dealings with the land are im- 
 pliedly subject to its terms and thus full effect is given to the 
 inviolability of the title, under the law. 
 
 662. Conveyances under the Torrens law. Upon the con- 
 veyance, in regular form, of any estate, interest or portion 
 of a registered tract of land, by the owner, his duplicate cer- 
 tificate is surrendered to the registrar, who proceeds to cancel 
 it and to issue to the grantee of the tract a new certificate in 
 proper form, with any additions to the title or chain of con- 
 veyances or incumbrances noted thereon. 37 If only a part 
 of his land is conveyed by the owner, a new certificate is 
 
 33 Ante, Idem, Sec. 39. 
 
 34/dem, Sec. 40. 
 
 ssHurd's Rev. St. 111. Ch. 115, Sec. 41. 
 
 WAnte, Idem, Sec. 42; Sheldon Land Reg., p. 41; Sheldon Land Reg., 
 p. 42. The registration of the owner's title is, in effect, a summary 
 proceeding to quiet title. 2 Tiffany Real Prop. Sec. 489, p. 1103, 54 
 Cent. L. J. 293. 
 
 37 Kurd's Rev. St. 111. Ch. 115, Sec. 47. 
 966
 
 CH. XXV.] REGISTRATION OF TITLES. 662 
 
 given him by the registrar for such portion not conveyed. 38 
 The new certificates are but a continuation of the original 
 registration and from the date of delivery to him of his regis- 
 tration certificate, the purchaser has all the muniments of 
 title for the land granted to him that the original registered 
 owner had and hence the same kind of a title. 39 The con- 
 veyance in common form is generally the only authority of 
 the registrar to make a transfer of a title, or a new certifi- 
 cate to a purchaser; all conveyances affecting the title are 
 noted filed as of the exact time received and same are re- 
 tained in the office of the registrar together with the address 
 of all persons named therein, for future reference. 40 Gen- 
 erally, however, no transfer of the title, or of any estate 
 therein will be made until the registrar shall be satisfied that 
 no tax assessment, lien or other claim by the State or munici- 
 pality exists, and that the dower right or homestead, if the 
 tract is subject to such claims, have been released. 41 And 
 practically the same rules as obtain in the notation of convey- 
 ances of the fee are followed in the registration of mortgages 
 
 38 Ante, idem, Sec. 48. 
 
 39 Sheldon's Land Reg., p. 43. 
 
 >Hurd's Rev. St. 111. Ch. 115, Sees. 50, 51, 52, 53, 54. 
 
 41 Ante, idem, Sec. 55. " Tax liens held by the State are not interests 
 in and claims upon the land upon which they are a lien, within Minne- 
 sota Laws 1903, p. 341, c. 234, Sec. 6, relating to the registration of 
 title under the Torrens act, and providing that whenever the State of 
 Minnesota has any interest, in the opinion of the examiner, he shall 
 state the interest in his report, and where he reports that the State has 
 some interest it shall be joined as a party." National Bond & Security 
 Co. v. Daskam (Minn. 1903), 97 N. W. Rep. 458. "Under Rev. Laws 
 Mass., c. 128, Sec. 31, relative to proceedings for the registration of 
 land titles, providing that if the land borders on a river or an arm of 
 the sea, or if it otherwise appears that the commonwealth has a claim 
 adverse to that of the applicant, notice shall be given to the Attorney 
 General, the commonwealth is a proper party in proceedings to register 
 the title to land over which there is claimed to be a public landing 
 place, and, under Section 13 of the act, it may appeal to the superior 
 court from an adverse decision." McQuesten v. Attorney General 
 (Mass. 1905), 72 N. E. Rep. 965. 
 
 967
 
 663 REGISTRATION OF TITLES. [PART III. 
 
 or other charges, except that the grantor's certificate is not 
 cancelled; assignments or releases or satisfactions are also 
 noted by the registrar in the same way and incumbrances are 
 enforced or mortgages foreclosed in all respects upon regis- 
 tered land the same as Upon land not brought under the 
 registration law. 42 
 
 If the conveyance is one in trust, or upon a condition or 
 limitation, this is noted by the registrar and no subsequent 
 conveyance will be noted, unless on the decree of a court, or 
 the opinion of an examiner that the conveyance is in further- 
 ance of the trust, condition or limitation, a safeguard which 
 it is claimed places cestui que trusts in a better position than 
 they occupy under the ordinary systems. 43 
 
 663. Death of owner Transmission of land. Upon the 
 death of the owner of land, registered under the Torrens Law, 
 the land, or any estate or interest therein belonging to the 
 deceased, at his death, goes to his personal representatives, in 
 like manner as personal estate, whether the owner dies intes- 
 tate or leaves a will. The land is divided in the same manner 
 as may be provided by law for the descent of real estate, or as 
 may be provided by will, but it is otherwise subject to the same 
 rules of administration as if it were personal property. 44 
 Proof of heirship is made in the court of probate jurisdiction ; 
 the executor or administrator is ordered to make conveyances 
 according to the respective interests of the several heirs; the 
 decedent's certificate is cancelled, all questions concerning the 
 division and descent of the land are speedily settled and new 
 certificates are issued to the parties found to be entitled 
 thereto. 45 Before distribution of undevised registered land, 
 the administrator is required to file with the registrar a certi- 
 
 2 Kurd's Rev. St. 111. Ch. 115, Sees. 63, 64, 65, 66; Sheldon Land Reg. 
 pp. 48, 49. 
 
 Reg. of Title (British Col.) Blue Book 1881; Prussian Legislation 
 on Reg. of Title, Dr. Fischer, 1892; Sheldon Land Reg. p. 51. 
 
 "Kurd's Rev. St. 111. Ch. 115, Sec. 70, et sub. 
 
 Sheldon Land Reg. p. 52. 
 968
 
 CH. XXV.] REGISTRATION OP TITLES. 665 
 
 fied copy of the proof of heirship made in the court exercising- 
 probate jurisdiction and this proof is afterwards taken as 
 conclusive evidence that the persons named in the certificate 
 are the only heirs of the deceased owner. 46 The administrator 
 is subject to the same law in the administration of the estate 
 as may be provided in the administration of personal estates, 
 in the State or county where the deceased resided ; the land 
 may be ordered sold before distribution, partitioned in kind, 
 or other division or settlement had, as will best subserve the 
 interests of the estate, under the orders of the court. 47 
 
 664. Judgments, liens and assessments against land. All 
 judgments, liens, attachments and assessments against regis- 
 tered land, under the Torrens Law, are required to be noted 
 on the certificate, by copies filed with the registrar and until 
 such charges are filed or noted on the certificate, they are held 
 not to affect the title to the land. 43 
 
 All assignees, receivers or masters in chancery, before tak- 
 ing possession of registered land, are required to furnish a 
 certified copy of their authority to the registrar. 49 Tax as- 
 sessments and the certificates of foreclosure of the lien, as 
 well as lis pendens, judgments, decrees and sheriff's sales are 
 all required to be noted on the certificate of title, in order to 
 affect the land, and all such liens and charges, as well as ad- 
 verse claims and proceedings, unless so noted, are held not to 
 affect/ the title. 50 
 
 665. Relief against arbitrary power of registrar. Under 
 the Torrens Law of Illinois the citizen and landowner is safe- 
 guarded against the arbitrary power of the registrar, by a 
 provision that for a failure of the registrar or his deputy to 
 perform any duty enjoined upon him by law, a court of equity 
 
 4 Kurd's Rev. St. 111. Ch. 115, Sec. 76. 
 47 Ante, idem, Sees. 77, 78, 79. 
 "Kurd's Rev. St. 111. Ch. 115, Sec. 84. 
 4 Kurd's Rev. St. 111. Ch. 115, Sec. 80. 
 to Ante, idem, Sees. 82, 83.
 
 666 REGISTRATION OF TITLES. [PART III. 
 
 is authorized, by summary proceeding, to investigate and 
 make the proper orders in the premises and on the filing of 
 such order, or a certified copy, with the registrar, he is re- 
 quired to conform the certificate to the order of the court. 51 
 This is a very important provision, which ought to be incor- 
 porated in all land registration acts, for it would prevent an 
 abuse of power or omission of duty by an officer entrusted 
 with important functions and answer the criticisms frequent- 
 ly urged against such legislation. 
 
 666. Indemnity and procedure to recover. Under some 
 of the statutes providing for title registration, an indemnity 
 fund, arising from a small per cent, of the value of the land, 
 at the time of initial registration, and again on the entry of 
 a new certificate, on the death of the owner, is provided for, 
 as a protection to the owner, against the acts of the registrars 
 or examiners or for any loss occasioned by bringing his land 
 under the act, in cases where his land is lost to him, without 
 his own fault or neglect. 52 
 
 Under the Illinois statute, if the loss results from the neg- 
 lect or wrongful act of the registrar or examiner alone, the 
 custodian of the fund is alone the proper party defendant; 
 but if the loss is occasioned by the act of some third person 
 he must also be joined as defendant and an effort first made 
 to realize the loss sustained from such wrongdoer before re- 
 course to the indemnity fund. 53 
 
 The time for proceedings to recover for loss sustained to a 
 registered title, however, is limited, under the Illinois stat- 
 ute, and severe penalties are provided for the protection of the 
 indemnity fund from fraudulent claims and for fraudulent 
 acts, under the statute. 84 
 
 si Kurd's Rev. St. 111. Ch. 115, Sec. 93. 
 
 52 This is the Illinois statute, Kurd's Rev. St. 111. Ch. 115, Sees, 99, 
 100. 
 
 53 Ante, idem, Sees. 101, 102. 
 
 54 Kurd's Rev. St. 111. Ch. 115, Sees. 103, 104. 
 
 970
 
 CH. XXV.] REGISTRATION OF TITLES. 667 
 
 667. Advantages and objections to title registration. As 
 the legislature, in the enactment of laws that are not prohib- 
 ited by organic law, as an independent branch of Govern- 
 ment, in theory at least, is beyond the power of courts or 
 text-writers, it is doubtful if any material advantage can be 
 derived from a discussion of such legislation. However, as 
 the more scientific legislation should be encouraged than the 
 contrary, there is perhaps some benefit to be- derived from 
 every discussion of such subjects. Unquestionably the Tor- 
 rens Law is the most systematic and scientific piece of legis- 
 lation for the protection of the rights of the landowner that 
 English law has known for many generations. The system, 
 in all its provisions, may not harmonize with American in- 
 stitutions or constitutions, and modifications may be neces- 
 sary to meet the conditions in this country. Under our con- 
 stitutions no arbitrary judicial functions could be recognized 
 in any officer qualified to divest rights without "due process 
 of law." It remains to be seen if the spirit of American citi- 
 zenship would not rebel against compulsory registration, 
 guaranteed, as it is, by organic law, even in the freedom of 
 religious worship. 55 The disturbance of the settled order of 
 
 55 The Illinois legislature, in 1905, passed a law making title regis- 
 tration compulsory, on the death of the owner. The constitutionality 
 of this act has not yet been passed upon by the supreme court of the 
 State. " The one apparent defect in American legislation on the Tor- 
 rens System is the absence of some kind of provision for compulsory 
 registration. Under acts making registration optional a long period 
 necessarily intervenes before the system can be brought well under 
 way. If the system is worth having at all it should be compulsory. 
 Such is the law in England and the German Empire. Under the Eng- 
 lish act registration of land in any county can be made compulsory, by 
 order in council, in which case no title to land in that county can pass 
 until the buyer is registered as the proprietor of the land. Another 
 method, however, is to require the registration of land by executors or 
 administrators, before land can legally pass from the estate of a de- 
 ceased person either by devise or descent. It is thought that in popu- 
 lous communities this latter provision is to be preferred for the reason 
 that to compel registration of all land at one time would unreasonably 
 clog the registration office and interfere with alienation. Under the 
 
 971
 
 667 REGISTRATION OF TITLES. [PART III. 
 
 things, the length of time necessary to perfect the title, by 
 registration, and the invasion of customs long enjoyed as 
 vested rights, are among the objections to the adoption of the 
 Torrens System generally. But as all reforms, when adopted, 
 are revolutionary in their tendency, an otherwise beneficial 
 law should not be alone condemned because it is new. If 
 such policy were generally to prevail all progress would 
 inevitably succumb to such argument. The advantages of 
 the Torrens System have commended it in the States and 
 countries that have tried it, and they are perhaps the best 
 qualified to judge of the relative merits and demerits of the 
 system, of which it was intended to give but a general outline 
 in this chapter. 
 
 latter method, however, the land of a county would gradually pass from 
 the old system to the new, with the expense borne by those upon whom 
 the burden would be the lightest." 54 Cent. Law Jour. 296. 
 
 972
 
 INDEX 
 
 [Tfce references are 1o sections,} 
 
 ABANDONMENT OF TITLE, 510, 518. 
 general discussion, 516. 
 
 of title by adverse possession, 517. 
 by surrender of deed, 518. 
 
 ACCEPTANCE, 
 
 of deed, when presumed, 576. 
 
 dedication to public, 441. 
 
 trust necessary, 378. 
 
 rent creates a tenancy from year to year, 166. 
 
 ACCOUNTING, 
 
 between mortgagor and mortgagee, 267. 
 
 ACCRETION AND ALLUVION, 
 
 definition < r, 487, 488. 
 
 in whom is the title to, 487, 488. 
 
 ACCUMULATION OF PROFITS, 
 how far permissible, 399. 
 
 ACKNOWLEDGMENT OF DEEDS, 
 when required, 574. 
 requisites, certificate of, 574. 
 certificate, conclusive of what, 574. 
 by married women, 574. 
 
 ACQUISITION, 
 
 title by original, 484, 518. 
 
 ACT OF GOD, 
 
 when rent is discharged by, 55. 
 
 when performance of condition excused by. 203. 
 
 when waste by, excusable, 55. 
 
 ADULTERY. 
 
 of husband, effect upon curtesy, 84 
 of wife, effect upon dower, 98. 
 
 P73
 
 INDEX. 
 
 [The references are to sections.] 
 
 ADVANCEMENT, 
 
 defined, 480. 
 
 intention of donor controls, 480. 
 
 how manifested and proved, 480. 
 
 ADVERSE POSSESSION, 
 defined, 491. 
 effect upon title, 491. 
 dispossession distinguished from, 492. 
 essentials of, 493, 496. 
 must be visible or notorious, 494, 495. 
 
 distinct and exclusive, 496. 
 
 hostile and adverse, 497. 
 when entry was lawful, 498. 
 title by, how defeated, 501. 
 
 how made absolute, 502. 
 nature of title by, 491. 
 when it begins, 491. 
 
 AFFINITY, 
 
 relation of, 473. 
 
 AGENT. See ATTOBNET. 
 
 ALIEN, 
 
 capacity of, to acquire real property by descent, 483. 
 by purchase, 561. 
 
 ALIENATION, 
 
 power of, historical outline, 22, 24. 
 invariable incident to a fee, 33, 204. 
 in respect to estate for life, 204. 
 
 estate for years, 139. 
 
 estate from year to year, 164. 
 
 tenancy at will, 164. 
 
 mortgages, see assignment. 
 
 trust estates, 334, 373. 
 effect of, by husband upon dower, 97. 
 when wife is capable of making, 558. 
 effect of, by wife upon curtesy, 84, 558. 
 of joint-estates, 189. 593. 
 
 ALTERATIONS IN DEEDS, 
 effect of, 554. 
 
 legal presumptions as to time when made, 554. 
 how they may be noted, 554. 
 974
 
 INDEX. 
 
 [The references are to sections.'} 
 APPOINTMENT, 
 
 See Powers of Appointment. 
 
 APPURTENANT, 
 defined, 606. 
 what things pass as, 606. 
 
 ASSIGNMENT, 
 
 ' of dower, 104, 107, 114, 115. 
 executory devise, 385. 
 lease, 139. 
 mortgage, 249, 251. 
 rent, with and without reversion, 461. 
 reversion, 292. 
 vendor's lien, 219. 
 
 ATTESTATION, 
 
 of deeds, when necessary, 573. 
 
 requisites of, 573. 
 of wills, 633, 634. 
 
 ATTORNEY, 
 
 power of, to make deed, 569. 
 by married women, 570. 
 (See Powers.) 
 
 BARGAIN AND SALE, 542, 543. 
 BASE FEE, 36. 
 
 BASTARDS, 
 
 cannot inherit at common law, 482. 
 statutory changes in common law, 482. 
 
 BETTERMENTS, 500. 
 
 BOUNDARIES, 
 
 elements of, 594. 
 
 monuments, natural and artificial, 595. 
 
 artificial monuments in United States surveys, 596. 
 
 non-navigable streams, 597. 
 
 navigable streams, 598. 
 
 ponds and lakes, 600. 
 
 highways, 601. 
 
 walls, trees, fences, etc., 602. 
 
 BRIDGES. See FRANCHISES. 
 
 BUILDINGS, 
 
 included in lands, 2. 
 
 975
 
 INDEX. 
 
 [The references are to sections.] 
 
 CANCELLATION, 
 of deed, 518. 
 of will, 645. 
 
 CHARITABLE USES, 
 when valid, 641. 
 devise to, when valid, 641. 
 
 CHILD, 
 
 birth of, requisite to curtesy, 95. 
 illegitimate, cannot inherit, when, 482. 
 in Centre sa mdre, when considered as born, 481. 
 posthumous, can now inherit, 481. 
 
 CODICIL. See DEVISE. 
 
 COMMON, 
 
 rights of, 424, 426. 
 
 CONDITION, 
 
 in conveyances, 611, 627. 
 
 in leases, 148. 
 
 in devises, 651. 
 
 estate upon, 201, 211. 
 
 express or implied, 201. 
 
 precedent or subsequent, 201, 203. 
 
 ffect of condition upon estate, 201. 
 
 how estate affected by breach of, 203, 207. 
 
 -when void, 204, 205. 
 
 impossibility of performance, 204. 
 
 illegality of performance, 205. 
 
 flow estate affected by void, 204. 
 
 "time of performance, 206. 
 
 estate upon, distinguished from trusts, 210. 
 
 Avhen performance excused, 204, 205, 208. 
 
 "when forfeiture is relieved by courts, 209. 
 
 who can enforce forfeiture, 207. 
 
 -effect of waiver of performance upon the, 208. 
 
 what acts constitute a waiver, 208. 
 
 in- an escrow, 576. 
 
 CONDITIONAL LIMITATIONS, 
 defined, 211. 
 distinguished from condition and limitation, 211. 
 
 CONFIRMATION, 
 
 a common law conveyance, 535. 
 076
 
 INDEX. 
 
 [The references are to sections.] 
 CONSANGUINITY, 
 relation by, 473. 
 kinds of, 474, 475, 476. 
 how degrees of relation are computed, 477. 
 by what law is it governed, 472. 
 
 CONSIDERATION, 
 
 when requisite to deeds, 565. 
 
 when requisite to create a use, 330, 549. 
 
 acknowledged under seal, an estoppel, 330, 549. 
 
 CONTRIBUTION, 
 
 between parties to mortgage, 284, 288. 
 
 COPARCENARY, 
 estates in, 180. 
 
 CORPORATIONS, 
 
 can take real property by deed, when, 561. 
 can take real property by devise, when, 638. 
 
 COVENANTS, 
 
 defined and classified, 142, 612. 
 
 enlarging estate, 613. 
 
 of seisin and right to convey, 614. 
 
 breach of covenant of seisin, 615. 
 
 against incumbrances, 616. 
 
 breach of the same, 617. 
 
 for quiet enjoyment, 144, 618. 
 
 of warranty, 619, 620. 
 
 the feudal warranty, 621. 
 
 special covenants of warranty, 622. 
 
 exceptions to operation of covenant, 622. 
 
 implied, 143, 146, 623. 
 
 actions on covenants of warranty, 624, 625. 
 
 running with the land, 147, 626. 
 
 when breach of covenant works forfeiture, 627. 
 
 COVERTURE, 
 
 estate during, 70. 
 
 how husband's rights in wife's lands may be barred, 71. 
 
 how prevented from attaching, 72. 
 
 restrictions upon alienation of wife's property, 73. 
 
 statutory changes in estate during, 74. 
 
 CURTESY, 
 
 defined, essentials of, 75. 
 marriage, 76. 
 
 62 977
 
 INDEX. 
 
 [The references are to sections.} 
 CURTESY Continued. 
 
 estate of inheritance in wife, 77. 
 
 in fees determinate, 78. 
 
 in equitable estates, 79. 
 
 seisin in wife during coverture, 80. 
 
 in reversion, 81. 
 
 necessity of issue, 82. 
 
 liability for debts of husband, 83. 
 
 how estate may be defeated, 84. 
 
 CUSTOM, 
 
 easement created in favor of public by, 441. 
 
 DATE, 
 
 in deed, 576. 
 
 DEED, 
 
 defined, 550. 
 
 what are requisites of, 551, 586. 
 
 a sufficient writing, what constitutes, 551, 553. 
 
 alterations and interlineations, 554. 
 
 proper parties, the grantor, 555. 
 
 infants and insane grantors, 556. 
 
 ratification and disaffirmance, 557. 
 
 deeds by married women, 558. 
 
 a disseisee cannot convey, 559. 
 
 effect of fraud and duress upon, 560. 
 
 proper grantees, 561. 
 
 proper parties named in the deed, 562. 
 
 a thing to be granted, 563. 
 
 what can be conveyed by, 563, 564. 
 
 consideration, when requisite to, 565. 
 
 voluntary and fraudulent conveyances by, what are, 566. 
 
 operative words of conveyance, 567. 
 
 execution of, what constitutes, 568. 
 
 power of attorney to execute, 569. 
 
 power of attorney by married women, 570. 
 
 signing, 571. 
 
 sealing, 572. 
 
 attestation, 573. 
 
 acknowledgment or probate, 574. 
 
 reading of, when necessary, 575. 
 
 delivery and acceptance of, 576. 
 
 what constitutes a sufficient delivery, 577. 
 
 delivery to stranger, when assent of grantee presumed. 578. 
 
 978
 
 INDEX. 
 
 [The references are to sections.] 
 DEED Continued. 
 escrows, 579. 
 
 registration or record of, 580. 
 requisites of proper record, 581. 
 to whom is record constructive notice, 582. 
 priority of unrecorded mortgages over judgment creditors, 583. 
 of what is record constructive notice, 584. 
 from what time does priority take effect, 585. 
 what constitutes sufficient notice of title possession, 586. 
 poll and of indenture, 587. 
 component parts of a, 587, 611. 
 the premises, 589. 
 
 description general statement, 590. 
 contemporaneous exposition, 591. 
 falsa demonstratio non nocet, 592. 
 description in conveyance of joint-estates, 593. 
 elements of description, 594. 
 monuments, natural and artificial, 595. 
 artificial monuments in United States surveys, 596. 
 non-navigable streams, 597. 
 navigable streams, 598. 
 what is a navigable stream, 599. 
 ponds and lakes, 600. 
 highways, 601. 
 
 walls, trees, fences, etc., 602. 
 courses and distances, 603. 
 quantity, 604. 
 
 reference to other deeds, maps, etc., for description, 605. 
 appurtenances, 606. 
 grant of easements, 607. 
 exception and reservation, 608. 
 habendum, 609. 
 reddendum, 610. 
 conditions, 611. 
 covenants in, 612, 627. 
 covenants defined, 612. 
 'classes of covenants, 612. 
 covenants enlarging the estate, 613. 
 covenants of seisin and right to convey, 614. 
 breach of covenant of seisin, 615. 
 covenant against incumbrances, 616. 
 breach of covenant against incumbrances, 617. 
 covenant of quiet enjoyment, 618. 
 covenant of warranty, 619. 
 
 979
 
 INDEX. 
 
 [The references are to section*.] 
 
 DEED Continued. 
 
 character of covenant of warranty, 620. 
 
 the feudal warranty, 621. 
 
 special covenants of warranty, 622. 
 
 implied covenants, 623. 
 
 who may maintain actions on covenants of warranty, 624. 
 
 what damages may be recovered on covenants of warranty, 625, 
 
 what covenants run with land, 626. 
 
 when breach of covenant works forfeiture, 627. 
 
 DEDICATION, 
 
 of lands for public highways, 441. 
 acceptance by public, 441. 
 rights acquired by public, 441. 
 
 DELIVERY, 
 
 of deed, 576, 578. 
 what constitutes, 576. 
 absolute and conditional, 577. 
 escrow, 578. 
 
 DESCENT, 
 
 title by, 471, 483. 
 
 definition of title by, 471. 
 
 what law governs, 472. 
 
 consanguinity and affinity, 473. 
 
 how lineal heirs take, 474, 475. 
 
 collateral heirs, 476. 
 
 how degree of collateral relationship is computed, 477. 
 
 ancestral property, 478. 
 
 kindred of the whole and half blood, 479. 
 
 advancement hotchpot, 480. 
 
 posthumous children, 481. 
 
 illegitimate children, 482. 
 
 alienage, a bar -to inheritance, 483. 
 
 DESCRIPTION. See DEED AND DEVISE. 
 
 DEVISE, 
 
 title by, 628, 653. 
 
 definition and historical outline, 628. 
 by what law governed, 629. 
 requisites of a valid will, 630. 
 a sufficient writing, 631. 
 what signing is necessary, 632. 
 proper attestation, 633. 
 who are competent witnesses, 634. 
 980
 
 INDEX. 
 
 [The references are 1o sections.] 
 
 DEVISE Continued. 
 
 who may prepare the will, holographs, 635. 
 
 what property may be devised, 636. 
 
 a competent testator, who is, 637. 
 
 who may be devisees, what assent necessary, 638. 
 
 devisee incapacitated by murder of testator, 639. 
 
 devisee and devise must be clearly defined parol evidence, 640. 
 
 devise to charitable uses, 641. 
 
 lapsed devise, what becomes of, 642. 
 
 revocation of will, 643. 
 
 joint or mutual wills, 644. 
 
 revocation of will by destruction, 645. 
 
 effect of .alterations of will after execution, 646. 
 
 revocation of will by marriage and issue, 647. 
 
 revocation of will by alteration or exchange of property, 648. 
 
 revocation of will by subsequent will or codicil, 649. 
 
 defective will confirmed by codicil, 650. 
 
 probate of will, 651. 
 
 agreements as to testamentary disposition of property, 653. 
 
 DISSEISEE, 
 
 cannot convey, 559. 
 
 DISSEISIN, 
 
 defined, 491. 
 
 distinguished from dispossession, 492. 
 
 what title gained by, 491. 
 
 DIVORCE, 
 
 effect upon curtesy, 84. 
 
 effect upon dower, 98. 
 
 effect upon husband's estate during coverture, 71. 
 
 DOWER, 85, 119. 
 
 defined and explained, 85. 
 
 in what estates, 86. 
 
 in equitable estates, 87. 
 
 in lands of trustee, 88. 
 
 in mortgage, 89. 
 
 in proceeds of sale, 90. 
 
 seisin in husband during coverture, 91. 
 
 defeasible and determinable seisin, 92. 
 
 duration of the seisin, 93. 
 
 instantaneous seisin, 94. 
 
 legal marriage, 95. 
 
 lost or barred by act of husband, 96. 
 
 981
 
 INDEX. 
 
 [The references are to section*.] 
 DOWER Continued. 
 
 lost or barred by wife's release during coverture, 97. 
 
 lost or barred by elopement and divorce, 98. 
 
 lost or barred by loss of husband's seisin, 99. 
 
 lost or barred by estoppel in pen's, 100. 
 
 lost or barred by statute of limitations, 101. 
 
 lost or barred by exercise of eminent domain, 102. 
 
 widow's quarantine, 103. 
 
 assignment two modes, 104. 
 
 assignment of common right, 105. 
 
 assignment against common right, 106. 
 
 by whom may dower be assigned, 107. 
 
 remedies for recovery of, 108. 
 
 demand necessary, 109. 
 
 against whom and where action instituted, 110. 
 
 action abated by death of widow, 111. 
 
 judgment, what it contains, 112. 
 
 damages, when recoverable, 113. 
 
 assignment after judgment, 114. 
 
 assignment, where two or more widows claim, 115. 
 
 decree of sum of money in lieu of, 1 16. 
 
 barred by jointure, 117. 
 
 barred by testamentary provision, 118. 
 
 barred by statute, 119. 
 
 DURESS, 
 
 effect of, on validity of deed, 560. 
 
 EASEMENTS, 427-452. 
 
 defined and explained, 427. 
 when merger takes effect, 428. 
 how acquired, 429. 
 by express grant, 430. 
 by implied grant, 431. 
 equitable easement, 432. 
 implied from covenant, 433. 
 rights of action in defense of, 434. 
 lost or extinguished, how, 435. 
 kinds of, 436. 
 right of way, 437. 
 private way, 438. 
 ways of necessity, 439. 
 who must repair the way, 440. 
 public or highways, 441. 
 in light and air, 442. 
 982
 
 INDEX. 
 
 (The references are to sections.] 
 
 EASEMENTS Continued. 
 
 in light and air, how acquired, 443. 
 
 in right to water, 444. 
 
 percolations and swamps, 445. 
 
 in artificial water courses, 446. 
 
 in water courses, generally, 447. 
 
 right of lateral and subjacent support, 448. 
 
 implied grant of lateral support, 449. 
 
 party walls, 450. 
 
 separate ownership in building subjacent support, 451. 
 
 legalized nuisances, 452. 
 
 ELOPEMENT, 
 
 of wife, bar to dower, 98. 
 
 EMBLEMENTS, 
 what are, 7, 58. 
 who may claim, 59. 
 
 EMINENT DOMAIN, 
 defined, 525. 
 nature of title acquired by, 525. 
 
 ENCUMBRANCES, 
 
 by whom paid off, 54. 
 interest on, by whom paid, 54. 
 if paid by tenant, what effect, 54. 
 
 ENTIRETY, 
 
 estates in, 181-183. 
 
 doctrine of survivorship, 181. 
 
 estates in, in a joint-tenancy, 182. 
 
 how affected by statutes in United States, 183. 
 
 EQUITABLE ESTATES, 
 what are, 323-327. 
 history and origin of, 324. 
 dower in, 87. 
 curtesy in, 79. 
 
 EQUITY OF REDEMPTION, 
 defined, 225. 
 
 invariable incident to mortgage, 225, 234. 
 how affected by contemporaneous agreements, 234. 
 how affected by subsequent agreements, 235. 
 
 EQUITABLE MORTAGE, 
 what is, 213. 
 by deposit of title deeds, 213-226. 
 
 983
 
 INDEX. 
 
 [The references are to sections.] 
 
 EQUITABLE MORTGAGE Continued. 
 vendor's lien, 217-219. 
 vendee's lien, 220. 
 
 ESCROW, 
 
 defined and explained, 579. 
 
 ESTATE, 
 
 what is an, 26. 
 kinds and classes, 26. 
 in fee simple, 29-35. 
 tail, 36-45. 
 for life, 46-68. 
 per outer vie, 47. 
 joint estates, 174-185. 
 during coverture, 69-74. 
 curtesy, 75-84. 
 dower, 85-119. 
 homestead. 120-127. 
 upon condition, 134-143. 
 upon limitation, 143. 
 equitable, 323-327. 
 in reversion, 291-295. 
 in remainder, 296-322. 
 contingent use, 354. 
 springing use, 355. 
 shifting use, 356. 
 executory devise, 385-401. 
 conditional limitations, 211. 
 for years, 128-161. 
 at will, 162-169. 
 at sufferance, 170-173. 
 
 ESTATE IN FEE SIMPLE, 29-35. 
 defined and explained, 29. 
 words of limitation necessary, 30. 
 statutes abolishing, 31. 
 alienation of, 32. 
 
 absolute power of, an incident to a fee, 33. 
 attempted limitation of, 34. 
 liability of, for debts, 35. 
 
 ESTATES TAIL, 36-45. 
 
 base or qualified fees, 36. 
 fee conditional at common law, 37. 
 estate tail explained, 38. 
 984
 
 INDEX. 
 
 [The references are to sections.] 
 
 ESTATES TAIL Continued. 
 
 necessary words of limitation in, 39. 
 
 created by implication, 40. . 
 
 classes of, 41. 
 
 how barred, 42. 
 
 merger of, 43. 
 
 after possibility of issue extinct, 44. 
 
 in the United States, 45. 
 
 ESTATES FOR LIFE, 46-68. 
 definition and classes, 46. 
 peculiarities of estates per auter vie, 47. 
 words of limitation in, 48. 
 tail converted into, by statute, 49. 
 merger of, 50. 
 alienation of, 51. 
 
 life tenant's power to alien the fee, 52. 
 tenure between tenant for life and revisioner, 53. 
 apportionment between life tenant and reversioner of 
 
 brances, 54. 
 same of rent, 55. 
 
 claim of tenant for improvements, 56. 
 estovers, 57. 
 emblements, 58. 
 
 who may claim emblements, 59. 
 waste, definition and history of, 60. 
 what acts constitute waste, 61. 
 waste, in respect to trees, 62. 
 
 continued in respect to mineral and other deposits, 64. 
 continued management and culture of land, 65. 
 continued in respect to buildings, 66. 
 continued by acts of strangers, 66. 
 continued by destruction of buildings by fire, 67. 
 exemption from liability for waste, 67. 
 remedies for waste, 68. 
 property in timber unlawfully cut by life tenant, 63. 
 
 ESTATES FOR YEARS, 128-161. 
 history of, 128. 
 definition of, 129. 
 tenure defined, 130. 
 interesse termini, 131. 
 terms commencing in futuro, 132. 
 the rights of lessee for years, 133. 
 how created, 134. 
 
 985
 
 INDEX. 
 
 [The references are to sections.] 
 ESTATES FOR YEARS Continued. 
 form of a lease, 135. 
 
 present lease distinguished from contract for future one, 136. 
 acceptance of lease necessary, 137. 
 relation of landlord and tenant, 138. 
 assignment and subletting, 139. 
 involuntary alienation, 140. 
 
 disposition of terms after death of tenant, 141. 
 covenants in a lease, in general, 142. 
 covenants, express and implied, 143. 
 implied covenants for quiet enjoyment, 144. 
 implied covenant for rent, 145. 
 implied covenant against waste, 146. 
 covenants running with the land, 147. 
 conditions in leases, 148. 
 rent reserved, 149. 
 
 rent reserved, condition of forfeiture, 150. 
 how relation of landlord and tenant may be determined, 151. 
 what constitutes eviction, 152. 
 constructive eviction, 153. 
 surrender and merger, 154. 
 how surrender may be affected, 155. 
 right of lessee to deny landlord's title, 156. 
 effect of disclaimer of lessor's title, 157. 
 options of purchase and for renewal, 158. 
 letting land upon shares, 160. 
 actions between landlords and tenants, 161. 
 
 ESTATES AT WILL AND FROM YEAR TO YEAR, 162-169. 
 what are estates at will, 162. 
 how estates at will are determined, 163. 
 estates at will and from year to year distinguished, 164. 
 what now included under estates at will, 165. 
 estates at will, arising by implication of law, 166. 
 qualities of tenancies from year to year, 167. 
 what notice required to determine tenancy from year to year, 168. 
 how notice may be waived, 169. 
 
 ESTATES AT SUFFERANCE, 170-173. 
 what are, 170. 
 incidents of, 171. 
 
 how tenancy at sufferance may be determined, 172. 
 effect of forcible entry, 173. 
 
 ESTATES UPON CONDITION, 200-211. 
 definition of, 200. 
 986
 
 . 
 INDEX. 
 
 [The references are to sections.] 
 ESTATES UPON CONDITION Continued. 
 words necessary to creation of, 201. 
 conditions precedent and subsequent, 202, 204. 
 invalid conditions impossibility of performance, 203. 
 invalid conditions because of illegality, 204. 
 building restrictions in deeds, 205. 
 time of performance, 206. 
 effect of breach of condition upon, 207. 
 waiver of performance, 208. 
 equitable relief against forfeiture, 209. 
 distinguished from trusts, 210. 
 
 distinguished from estates upon limitation and conditional limita- 
 tions, 211. 
 
 ESTATES UPON LIMITATION, 211. 
 
 ESTOPPEL, 508-515. 
 defined, 508. 
 in pais, 509. 
 
 perfection of title by the operation of, 510. 
 
 is fraud necessary to, 511. 
 
 by deed, in its relation to title by adverse possession, 512, 513. 
 effect of estoppel upon the title, 514. 
 binding upon whom, 515. 
 
 ESTOVERS, 
 
 defined and explained, 57. 
 
 EVICTION OF TENANT, 
 
 actual and constructive, 152-153. 
 effect of, 151. 
 
 EXCEPTION 
 
 and reservation distinguished, 608. 
 
 EXCHANGE, 
 
 technical conveyance at common law, 535. 
 rule as to dower in technical cases of, 115. 
 
 EXECUTION, 
 
 title acquired by sale under, 529. 
 of mortgages, 228-229. 
 of deeds, 568-573. 
 of devises, 630-635. 
 
 EXECUTORY DEVISES, 385-401. 
 nature and origin of, 385. 
 vested and contingent, 386. 
 
 987
 
 INDEX. 
 
 [The references are to sections.] 
 EXECUTORY DEVISES Continued. 
 classes of, 387. 
 
 distinguished from devises in prcesenti, 388. 
 reversion of estate undisposed of, what becomes of, 389. 
 distinguished from uses, 390. 
 distinguished from remainders, 391-395. 
 may be limitation after a fee, 392. 
 limitation after estate tail, a remainder and not an executory devise, 
 
 393. 
 
 arising by lapse of prior limitation, 394. 
 remainder may be limited after, 395. 
 indestructibility of, 396. 
 limited upon failure of issue, 397. 
 use limited upon failure of issue in deed, 398. 
 how affected by rule against perpetuity, 399. 
 rule against accumulation of profits, 400. 
 of chattel interests, 401. 
 
 FEE, 
 
 meaning of term under feudal system, 21. 
 words of limitation in creation of a, 39. 
 base or qualified, C 3, 200-211. 
 conditional at common law, 37. 
 
 FEE SIMPLE, 29-35. 
 defined, 29. 
 
 words of limitation in a, 30. 
 statutes abolishing, 31. 
 alienation of, 32. 
 liability for debts, 35. 
 
 absolute power of sale, an incident of, 33. 
 attempted limitation after, 34. 
 
 FEE TAIL, 38-44. See ESTATES TAIL. 
 
 FEOFFMENT, 
 
 explained and defined, 24, 536. 
 
 when it will operate tortiously, 536. 
 
 FERRIES. See FRANCHISES. 
 
 FEUDAL SYSTEM, 
 
 principles of the, 19-28. 
 what is tenure, 19. 
 feudal tenure, 20. 
 feud or fief, 21. 
 subinfeudation, 22. 
 988
 
 INDEX. 
 
 [The references are to sections.] 
 
 FEUDAL SYSTEM Con tinued. 
 the feudal manor, 23. 
 feoffment and livery of seisin, 24. 
 tenure in the United States,. 25. 
 classes of estates, 26. 
 estates in possession and expectancy, 27. 
 joint and several, 28. 
 
 FIDEI COMMISSUM, 
 resembles use, 324. 
 
 FILUM AQUAE, 489. 
 
 FINE, 
 
 and common recoveries, 41. 
 
 FIXTURES, 9-18. 
 
 general doctrine of, 9. 
 
 defined, 10. 
 
 tests for determining, 11. 
 
 identity and use of chattel, 12. 
 
 who may claim, 13. 
 
 what constitutes constructive annexation, 14. 
 
 temporary annexation, 15. 
 
 between landlord and tenant, 16. 
 
 erected by licensee, 17. 
 
 time for removal of, 18. 
 
 FLOWING LANDS, 
 
 when permitted by upper land-owner, 447. 
 
 FORECLOSURE, 272-282. 
 
 FRANCHISES, 453-456. 
 defined, 453. 
 kinds of, 454. 
 
 mutual obligations arising out of, 455. 
 
 conflicting franchises constitutional prohibition against legisla- 
 tive avoidance of, 456. 
 
 FRAUDULENT CONVEYANCES, 
 what are, 566. 
 
 FRAUDS, STATUTE OF, 
 in respect to leases, 135. 
 in respect to uses and trusts, 374. 
 in respect to conveyances generally, 549. 
 does not require a sealed instrument, 549. 
 in respect to mortgages, 229-233. 
 
 989
 
 INDEX. 
 
 [The references are to sections.} 
 FREEHOLD, 
 
 defined, 23, 26. 
 
 classes of, 26. 
 
 distinguished from leasehold. 129. 
 
 seisin applicable only to, 24. 
 
 cannot be created to commence in futuro, 292-296. 
 
 descends to heir, 471-483. 
 
 FUTURE USES, 350-359. 
 
 GIFT, 
 
 originally a feoffment in tail, 535. 
 
 GRANT, 519-549. 
 
 title by public grant, 519-522. 
 
 title by involuntary alienation, 523-533. 
 
 title by private grant, 534-549. 
 
 GRANT, TITLE BY PUBLIC, 519-522. 
 of public lands, 519. 
 forms of public, 520. 
 
 relative value of patent and certificate of entry, 521. 
 pre-emption, 522. 
 
 GRANT, TITLE BY INVOLUNTARY, 523-533. 
 defined, 523. 
 
 scope of legislative authority, 524. 
 eminent domain, 525. 
 from persons under disability, 526. 
 confirming defective titles, 527. 
 sales by administrators and executors, 528. 
 sales under execution, 529. 
 sales by decree of chancery, 530. 
 tax-titles, 531. 
 validity of tax-title, 532. 
 judicial sales for delinquent taxes, 533. 
 
 GRANT, TITLE BY PRIVATE, 534-549. 
 defined and explained, 534. 
 
 principal features and classes of common-law conveyances, 535. 
 feoffment, 536. 
 common-law grant, 537. 
 lease, 538. 
 release, 539. 
 confirmation, 539. 
 surrender, 539. 
 
 conveyances under the Statute of Uses, 540-544. 
 990
 
 INDEX. 
 
 [The references are to sections.] 
 
 GRANT, TITLE BY PRIVATE Continued. 
 retrospection, 540. 
 covenant to stand seised, 541. 
 bargain and sale, 542. 
 
 future estates of freehold in bargain and sale, 543. 
 lease and release, 544. 
 
 what conveyances now judicially recognized, 545. 
 statutory forms of conveyance, 546. 
 quit-claim deed, 547. 
 
 dual character of common conveyances, 548. 
 is a deed necessary to convey a freehold, 549. 
 
 GROWING CROPS, 
 
 when part of the realty, 2, 563. 
 
 GUARDIANS, 
 
 may sell lands of ward upon order of court, 526. 
 holding over are not tenants at sufferance, 170. 
 
 HABENDUM, 
 
 its use and necessity in deeds, 609. 
 
 HAY-BOTE OR HEDGE-BOTE. See ESTOVEBS. 
 
 HEIR, 
 
 defined, 471. 
 
 apparent and presumptive distinguished, 471. 
 
 a parent's deed operates by estoppel, 564. 
 
 HEIRS, 
 
 as a word of limitation, 30, 39. 
 
 HEIRS OF THE BODY, 
 who are, 39. 
 
 HEREDITAMENTS, 
 term defined, 6. 
 two classes of, 6. 
 (see incorporeal hereditaments.) 
 
 HIGHWAYS, 
 
 as a monument of description, 601. 
 right of the public in, how acquired, 441. 
 
 HOLDING OVER, 
 
 by tenant makes him tenant at sufferance, 170. 
 
 by guardian, and trustees makes them trespassers, 170. 
 
 HOLOGRAPHS, 635. 
 
 991
 
 INDEX. 
 
 [The references are to sections.] 
 
 HOMESTEADS, THE LAW OF, 120-127. 
 history and origin, 120. 
 nature of the estate, 121. 
 who may claim. 122. 
 what may be claimed, 123. 
 proceedings for allotment of, 124. 
 exemption from debt, 125. 
 how lost by alienation, 126. 
 lost by abandonment, 127. 
 
 HOUSES, 
 
 generally part of the land, 2, 563. 
 (see fixtures.) 
 
 HOUSEBOTE. See ESTOVERS. 
 
 HUSBAND AND WIFE. 
 
 when tenants by entirety, 181-182. 
 when tenants in common, 183. 
 rights of property in each other's lands, 69-127. 
 cannot convey directly to each other, may make joint conveyance 
 of wife's property, 558. 
 
 IMPEACHMENT FOR WASTE, 
 exemptions from, 67. 
 
 IMPLIED, 
 
 conditions, 148, 150, 200. 
 covenants in deeds, 623. 
 in leases, 143-146. 
 trusts, 365. 
 
 INCORPOREAL HEREDITAMENTS, 422-466. 
 rights of common, 422-425. 
 easements, 427-452. 
 rents, 461-466. 
 franchises, 453-456. 
 
 INCUMBRANCES, 
 
 covenant against, 616-617. 
 
 when tenant must pay off and how payment apportioned, 54. 
 
 INDENTURE, 
 
 what is deed of, 587. 
 
 INFANT, 
 
 deed of, whether void or voidable, 556. 
 not bound by estoppel, 515. 
 992
 
 INDEX. 
 
 [The references are to sections.] 
 INFANT Continued. 
 
 cannot avoid deed during infancy, 556-557. 
 confirmation validates the deed, 556-557. 
 
 INHERITANCE, 
 estates of, 26. 
 words of, 30, 39. 
 
 INSANE PERSON, 
 
 deed of, whether void or voidable, 556. 
 
 effect of disaffirmance and ratification, 556, 557. 
 
 INSOLVENT, 
 
 assignee of, when bound by covenants in assignor's lease, 140. 
 
 INSURANCE, 
 
 mortgagor and mortgagee's right to effect, 248. 
 rules for applying insurance money, 248. 
 double insurance, 248. 
 company's right of subrogation, 248. 
 
 INSTANTANEOUS SEISIN, 
 
 in respect to attaching dower right, 91. 
 
 INTERESSE TERMINI, 131. 
 
 IRRIGATION, 
 
 right of riparian owners to water for, 444-447. 
 
 ISLANDS, 
 
 forming, in whom is right of property, 489. 
 
 JOINT ESTATES, 174-185. 
 
 distinguished from several, 174. 
 
 what are, 175. 
 
 classes of, 176. 
 
 joint-tenancy, 177. 
 
 incidents of joint-tenancy, 177. 
 
 doctrine of survivorship, how destroyed, 177. 
 
 tenancy in common, 178. 
 
 when tenancies in common, 179. 
 
 tenancy in coparcenary, 180. 
 
 estates in entirety, 181-183. 
 
 tenancy in common between husband and wife, 183. 
 
 estates in partnership, 184. 
 
 several interests of partners, 185. 
 
 disseisin by one co-tenant, 186. 
 
 adverse title acquired by one co-tenant, 187. 
 
 alienation of, 188, 593. 
 
 63 993
 
 INDEX. 
 
 [The references are to sections.} 
 
 JOINT ESTATES Continued. 
 waste by co-tenant, 189. 
 
 liability of one co-tenant for rents and profits, 190. 
 definition of partition, 192. 
 voluntary partition, 193. 
 involuntary or compulsory partition, 194. 
 who can maintain action for waste, 195. 
 partial partition, 196. 
 manner of allotment, 197. 
 relief incident to, 198. 
 effect of partition, 199. 
 
 JOINT-TENANCY. See JOINT ESTATES. 
 
 JOINTURE, 
 
 explained, a bar to dower, 117. 
 
 JUDGMENT-LIEN, 
 
 when takes precedence to mortgage, 260, 583. 
 when created by docket of judgment, 529. 
 
 LAKES, 
 
 as monuments of description, 600. 
 
 LAND, 
 
 what is, 2-5. 
 
 what included in conveyance of, 2, 563-564. 
 
 never appurtenant to land, 606. 
 
 LANDS, 
 
 tenements and hereditaments, distinguished, 6. 
 
 LAND WARRANTS, 
 
 to what extent legal title, 521. 
 
 LANDLORD AND TENANT, 
 
 what constitutes relation of, 138. 
 (see estates for years.) 
 
 LEASE, 
 
 form and requisites of, 135, 538. 
 
 distinguished from contract for future lease, 136. 
 
 (see estates for years.) 
 
 LEASE AND RELEASE, 
 
 defined and explained, 544. 
 
 LEGISLATURE, 
 
 may create franchises, 453. 
 power of, over franchises, 455-456. 
 994
 
 INDEX. 
 
 [The references are to sections.] 
 
 LEGISLATURE Continued. 
 
 validity of sales of private property by, 524. 
 exercise of eminent domain by, 525. 
 
 LEGAL ESTATES, 
 
 distinguished from equitable, 26. 
 
 LESSEE. See ESTATES FOB YEARS. 
 LESSOR. See ESTATES FOB YEARS. 
 LETTING LAND UPON SHARES, 160. 
 
 LICENSE, 465-468. 
 
 defined and explained, 465. 
 how and when revoked, 466, 467. 
 how created, 468. 
 fixtures erected under, 17. 
 
 LIEN, 
 
 of vendor, 217-220. 
 
 of vendee, 220. 
 
 by deposit of title deeds, 213-215. 
 
 by judgment, when takes precedence to mortgage, 260. 
 
 when created by docket of judgment, 529. 
 
 LIFE ESTATE. See ESTATES FOB LIFE. 
 
 LIGHT AND AIR, 
 easement in, 442. 
 how created, 443. 
 
 LIMITATIONS, 
 
 statute of, 503, 507. 
 
 what statute enacts, 503. 
 
 requires continuous and uninterrupted possession, 504. 
 
 runs against whom, 505. 
 
 how and when statute operates, 500. 
 
 effect of, 507. 
 
 LINEAL AND COLLATERAL WARRANTY, 621. 
 LIVERY OF SEISIN, 24. 
 
 LUNATIC, 
 
 capacity as a grantor, 556-557. 
 capacity as a devisor, 637. 
 
 MACHINERY, 
 
 when passes as realty, 2. 
 
 995
 
 INDEX. 
 
 [The references arc to sections.] 
 
 MAGNA CHARTA, 
 
 provisions of, in respect to alienation, 22. 
 
 MANURE, 
 
 when part of realty, 2. 
 
 MAP, 
 
 may be made by reference part of description, 605. 
 
 MARITAL RELATION, 
 
 estates arising out of the, 69-127. 
 
 estate of husband during coverture, 69-74. 
 
 estate by curtesy, 75-84.- 
 
 dower, 85-119. 
 
 homestead estates, 120-127. 
 
 MARRIED WOMEN, 
 
 Have dower in husband's estate, 85-1 19. 
 how far able to convey legal estates, 557. 
 rights to convey equitable estates, 348. 
 
 MARSHALLING OF ASSETS, 
 
 between successive mortgages, 290. 
 
 MERGER, 
 
 of estate for life, 50. 
 
 of estate for years, 155. 
 
 of estate per outer vie, 47. 
 
 of estate tail, 42. 
 
 of mortgage, 242. 
 
 of equitable estate, 337, 343. 
 
 MINES, 
 
 included in term land, 2. 
 
 opening of, when waste by tenant, 64. 
 
 widow has dower in, 86. 
 
 MONUMENTS, 
 
 element of description of boundary, 594. 
 
 natural and artificial, 595. 
 
 artificial monuments in United States surveys, 596. 
 
 non-navigable streams, 597. 
 
 navigable streams, 598. 
 
 ponds and lakes, 599. 
 
 highways, 600. 
 
 walls, trees, fences, etc., 601. 
 
 MORTGAGE, 212-290. 
 denned, 212. 
 996
 
 INDEX. 
 
 [The references are to sections.'] 
 MORTGAGE Continued. 
 
 by deposit of title deeds, 213-216. 
 
 notice to subsequent purchasers, 214. 
 
 their recognition in this country, 215. 
 
 foreclosure of mortgage by deposit of title deeds, 216- 
 
 vendor's lien, 217-219. 
 
 whom does it bind, 217. 
 
 what constitutes notice of vendor's lien, 217. 
 
 lien how discharged, 218. 
 
 in whose favor raised, 219. 
 
 vendee's lien, 220. 
 
 foreclosure of vendor's and vendee's liens, 220. 
 
 at common law, 221. 
 
 vivum vadium, 222. 
 
 Welsh mortgage, 224. 
 
 equity of redemption, 225. 
 
 in equity, 226. 
 
 influence of equity upon law in respect to the, 227. 
 
 what constitutes a, 228. 
 
 execution of the defeasance, 229. 
 
 form of defeasance, 230. 
 
 defeasance distinguished from agreements to repurchase, 231. 
 
 defeasance clause in equity, 232. 
 
 admissibility of parol evidence to convert deed into a, 233. 
 
 how affected by contemporaneous agreements, 234. 
 
 how affected by subsequent agreements, 235. 
 
 debt necessary to a mortgage, 236. 
 
 for support of mortgagee, 237. 
 
 what may be mortgaged, 238. 
 
 mortgagor's interest, 239. 
 
 mortgagee's interest, 240. 
 
 may be devised, 241. 
 
 merger, 242. 
 
 possession of mortgaged premises, 243. 
 
 special agreements in respect to possession, 244. 
 
 rents and profits, 245. 
 
 mortgagee's liability for rents received, 246. 
 
 tenure between mortgagor and mortgagee, 247. 
 
 insurance of the mortgaged premises, 248. 
 
 assignment, 249. 
 
 common law assignment, 250. 
 
 alignment under lien theory, 251. 
 
 assignment of mortgagor's interest, 252. 
 
 rights and liabilities of assignees, 253. 
 
 997
 
 INDEX. 
 
 [The references are to sections.] 
 MORTGAGE Continued. 
 
 effect of payment or tender of payment, 254. 
 
 who may redeem, 255. 
 
 what acts extinguish the mortgage, 256. 
 
 effect of a discharge, 257. 
 
 when payment will work an assignment, 258. 
 
 registry of mortgages, and herein of priority, 259. 
 
 rule of priority from registry, its force and effect, 260. 
 
 registry of assignments of mortgages and equities of redemption, 
 
 261. 
 
 tacking of mortgages, 262. 
 priority in mortgages for future advances, 263. 
 actions for waste, 264. 
 process to redeem, 265. 
 accounting by the mortgagee, 266. 
 continued what are lawful debits, 267. 
 continued what are lawful credits, 268. 
 making rests, 269. 
 balance due, 270. 
 
 foreclosure nature and kinds of, 271. 
 continued who should be made parties, 273-274. 
 effect of decree in foreclosure upon the land, 275. 
 effect of foreclosure upon the debt, 276. 
 with power of sale, 277. 
 
 character of mortgagee in relation to the power, 278. 
 purchase by mortgagee at his own sale, 279. 
 extinguishment of the power, 280. 
 application of purchase-money, 281. 
 deeds of trust, 282. 
 
 contribution to redeem general statement, 283. 
 contribution between mortgagor and his assignee, 284. 
 
 between assignees of mortgagor, 285. 
 
 between surety and mortgagor, 286. 
 
 between heirs, widows and devisees of mortgagor, 287. 
 
 between mortgaged property and mortgagor's personal estate, 
 
 288. 
 
 special agreements affecting the rights of contribution and exonera- 
 tion, 289. 
 
 marshalling of assets between successive mortgages, 290. 
 satisfaction of mortgages on the record, 264. 
 
 NAKED POWER, 
 what is, 404. 
 
 008
 
 INDEX. 
 
 [The references are to sections.'] 
 NAMES, 
 
 of parties to deed, essential for description, 562. 
 when deed is void for uncertainty of, 562. 
 of devisees must be plainly given, 640. 
 
 NAVIGABLE STREAM, 
 what is, 599. 
 as a monument of description, 598. 
 
 NECESSITY, 
 way of, 639. 
 
 NEMO EST H^RES VIVENTIS, 471. 
 
 NON COMPOS MENTIS, 
 
 power to make deeds, 556. 
 power to make will, 637. 
 
 NON-NAVIGABLE STREAMS, 
 
 as a monument of description, 597. 
 
 NON-USER, 
 
 its effect upon easement, 635. 
 
 NOTICE TO QUIT, 
 
 necessary to terminate tenancy from year to year, 164, 167, 169. 
 length of notice required, 169. 
 
 NOTICE, 
 
 actual and constructive, 580-583. 
 
 constructive from registry of deed, 580-582. 
 
 what actual notice puts purchaser upon inquiry, 583. 
 
 OBSTRUCTION, 
 
 of water course, bow far lawful, 444-447. 
 
 right of water, 444. 
 
 of percolations and swamps, 445. 
 
 of artificial water courses, 446. 
 
 of water courses generally, 447. 
 
 OCCUPANCY, TITLE BY, 484-486. 
 defined and explained, 484. 
 in estates per outer vie, 486. 
 condition -of public lands in United States, 485. 
 
 OUSTER, 
 
 of tenant, effect upon covenant for rent, 151-153. 
 
 OUTSTANDING TERM, 
 
 to attend inheritance, 154. 
 
 ono
 
 INDEX. 
 
 [The references are to sections.] 
 OWELTY OF PARTITION, 197. 
 
 OWNERSHIP, 
 
 double, in lands, 4, 5. 
 
 PAROL EVIDENCE, 
 
 admissible to show a deed to be a mortgage, 233. 
 may establish amount of consideration of a deed, 565. 
 may prove location of monuments in a deed, 591-596, 
 
 PAROL LEASES, 
 
 how far binding, 134, 166. 
 
 PAROL LICENSE, 
 
 nature of interest created by, 465. 
 how far and when revocable, 466, 467. 
 
 PARTICULAR ESTATE, 
 what is a. 296. 
 
 PARTIES, 
 
 to deeds, who are competent, 555, 556, 558, 560. 
 to foreclosure of mortgage, 273-274. 
 redemption of mortgage, 255-256. 
 
 PARTITION, 192-199. 
 
 denned and explained, 192. 
 
 voluntary partition, 193. 
 
 involuntary or compulsory partition, 194. 
 
 who can maintain action for, 195. 
 
 partial partition, 196. 
 
 mode of allotment in, 197. 
 
 relief incidental to, 198.. 
 
 effect of, 199. 
 
 PARTNERSHIP, 
 estate in, 184. 
 several interests of partners in estate in, 185. 
 
 PARTY WALLS, 
 
 as an easement, 450. 
 
 PATENT OF LAND, 
 
 from the State or United States, 520. 
 
 its value compared with certificate of entry, 521. 
 
 PAYMENT, 
 
 of mortgage, effect of, 254, 256. 
 
 when it works an assignment, 258. 
 
 1000
 
 INDEX. 
 
 [The references are to sections.] 
 PERCOLATIONS, 
 
 rights in and to, 445. 
 
 PER MY ET PER TOUT, 177. 
 
 PERPETUITY, 
 
 rule against, 398. 
 
 in its relation to powers, 419. 
 does not apply to remainders, 312. 
 
 PERSONAL PROPERTY, 
 
 when it becomes part of realty, 9-18. 
 
 estates for years are, 128-129. 
 
 when liable to contribution towards payment of mortgage, 288. 
 
 PONDS, 
 
 as monuments of description, 600. 
 
 POSSESSION, 
 
 constructive notice of deed, 586. 
 
 title by adverse, 490-502. 
 
 effect of naked possession, 490. 
 
 seisin and disseisin explained, 491. 
 
 disseisin and dispossession distinguished, 492.* 
 
 actual or constructive possession necessary, 493. 
 
 what acts constitute actual possession, visible or notorious, 494, 495. 
 
 must be distinct and exclusive, 496. 
 
 must be hostile and adverse, 497. 
 
 when adverse after lawful entry, 498. 
 
 disseisor's power to alien, 499. 
 
 title by adverse, how defeated, 500. 
 
 how made absolute, 501. 
 
 betterments, 502. 
 
 POSSIBILITY OF ISSUE EXTINCT, 
 estate tail after, 44. 
 
 POSTHUMOUS CHILDREN, 
 right to inherit, 481. 
 how affected by will of parent, 481. 
 
 POWERS, 402-421. 
 
 of the nature of powers in general, 402. 
 classes of, 402. 
 
 POWERS OF APPOINTMENT, 403-421. 
 kinds of, 404. 
 
 suspension or destruction of, 405. 
 how created, 406. 
 
 1001
 
 INDEX. 
 
 [The references are to sections.] 
 
 POWERS OF APPOINTMENT Continued. 
 distinguished from estates, 407. 
 enlarging estate to which they are coupled, 408. 
 who may be donee, 409. 
 executed by whom, 410. 
 mode of execution, 411. 
 who may be appointees, 412. 
 execution by implication, 413. 
 excessive execution, 414. 
 successive execution, 415. 
 revocation of appointment, 416. 
 cy pres doctrine applied to, 417. 
 defective execution, 417. 
 non-execution, 418. 
 
 rules against perpetuity applied to, 419. 
 rights of donee's creditors in the power, 420. 
 rights of creditors of beneficiaries, 421. 
 
 POWERS OF ATTORNEY, 
 to execute deed, 569. 
 by married women, 570. 
 
 POWER OF SALE, 
 
 in a mortgage, 277-282. 
 
 explained, 277. 
 
 character of mortgagee in relation to, 278. 
 when extinguished, 279. 
 purchase by mortgagee at sale under, 280. 
 application of purchase-money, 281. 
 in deeds of trust, 282. 
 
 PRE-EMPTION, 522. 
 
 PREMISES OF A DEED, 589-608. 
 what contained in, 589. 
 description of land, general statements, 590. 
 contemporaneous exposition, 591. 
 falsa demonstratio non nocet, 592. 
 elements of description, 593. 
 monuments, natural and artificial, 594. 
 artificial monuments in United States surveys, 595. 
 non-navigable streams, 596. 
 navigable streams, 597. 
 what is a navigable stream, 598. 
 ponds and lakes, 599. 
 highways, 600. 
 1002
 
 INDEX. 
 
 [The references are to sections.] 
 PREMISES OF A DEED Continued. 
 walls, fencea, trees, etc., 601. 
 courses and distances, 602. 
 quantity of land, 603. 
 
 reference to other deeds, maps, etc., for description, 604. 
 appurtenances, 605. 
 exception and reservation, 608. 
 
 PRESCRIPTION, 
 
 applies only to incorporeal hereditaments, 429. 
 distinguished from limitation, 429. 
 
 PRIMOGENITURE, 474. 
 PRIORITY, 
 
 in extraordinary use of water course, 447. 
 
 of title by registration of deeds, 580-582. 
 
 of mortgage from recording, 259-273. 
 
 in registry of assignments of mortgage, 261. 
 
 in mortgages for future advances, 263. 
 
 PRIVATE GRANT, TITLE BY, 534. 
 defined and explained, 534. 
 
 principal features and classes of common-law conveyances, 535. 
 feoffment, 536. 
 common-law grant, 537. 
 lease, 538. 
 release, 539. 
 confirmation, 540. 
 surrender, 540. 
 
 conveyances under statute of uses, 541-544. 
 retrospection, 541. s. 
 
 covenant to stand seised, 542. 
 bargain and sale, 543. 
 
 future estates of freehold in bargain and sale, 544. 
 lease and release, 548. 
 
 what conveyances now judicially recognized, 546. 
 statutory forms of conveyances, 547. 
 quit-claim deed, 548. 
 
 dual character of common conveyances, 548. 
 is a deed necessary to convey freeholds, 549. 
 
 PRIVITY, 
 
 of contract between lessor and lessee, 139. 
 
 of estate between reversioner and particular tenant, 138, 157. 
 PROFITS A PRENDRE, 
 
 rights of common appurtenant and in gross, 424, 425. 
 
 1003
 
 INDEX. 
 
 [The references arc to sections.] 
 PROPERTY, 
 
 divided into real and personal, 1. 
 
 PUBLIC, 
 
 rights of, in highways acquired by custom, 441. 
 
 PUBLIC GRANT, TITLE BY, 519-522. 
 of public lands, 519. 
 forms of public grant, 520. 
 
 relative value of patent and certificate of entry, 521. 
 pre-emption, 522. 
 
 PUBLIC LANDS, 
 
 in United States, 485. See PUBLIC GRANT. 
 
 PURCHASE, 
 
 what is title by, 469. 
 
 QUALIFIED FEE, 
 
 what is, 36, 200-210. 
 
 QUANTITY, 
 
 of land, as an element of description, 604. 
 
 QUARANTINE, 
 
 widow's right of, 103. 
 
 QUIA EMPTORES, 
 
 statute of, granted right of alienation of freeholds, 22-31. 
 forbids restraint of alienation of fees, 204. 
 
 RAILROAD, 
 
 rolling stock of, whether real estate, 2. 
 franchise of. See FRANCHISES. 
 
 RATIFICATION 
 
 of deed by infant or insane person, 557. 
 
 REAL ESTATE 
 
 distinguished from real property, 1-128. 
 
 REAL PROPERTY, 
 defined, 1. 
 
 what included in, 2. 
 fixtures as a part of, 9-18. 
 t-mblements, 7, 58-59. 
 trees, a part of, 8. 
 double ownership in, 4, 5. 
 
 includes lands, tenements, and hereditaments, 6. 
 1004
 
 INDEX. 
 
 [The references are to sections.] 
 RECEIVER, 
 
 to mortgaged property, when appointed, 245. 
 to life estate when appointed, 54 n. 
 
 RECITALS, 
 
 how far estoppel arise from, 511. 
 
 RECORD. See REGISTRATION. 
 
 RECOVERY, 
 
 as a mode of conveying lands, 42. 
 
 REDEMPTION, 
 
 equity of. See EQUITY OF REDEMPTION. 
 right of. See MOBTGAOES. 
 
 REFORMATION OF DEEDS, 591. 
 
 REGISTRATION OF DEEDS, 580-585. 
 
 constructive notice, 582. 
 
 rule of priority from, 583. 
 of mortgages, 259, 260, 263. 
 
 their satisfaction of record, 264. 
 of assignments of mortgage, 261. 
 
 REGISTRATION OF TITLES, 654-667. 
 history of legislation regarding, 654. 
 object of statutes, 655. 
 constitutionality of statutes, 656. 
 registrars and examiners, 657. 
 how land is brought under, 658. 
 proceedings before examiner, 659. 
 jurisdiction and power of the court, 660. 
 effect of registration, 661. 
 conveyances under Torrens law, 662. 
 death of owner transmission of land, 663 
 judgments and liens, under, 664. 
 assessments under, 664. 
 relief against power of registrar, 665. 
 indemnity and recovery of, 666. 
 advantages and objections to, 667. 
 
 RELEASE, 
 
 roiiiinon-law conveyance, 539. 
 lease and, 544. 
 
 REMAINDERS, 296-322. 
 
 nature and definition of, 296. 
 kinds of, 299-301. 
 
 1005
 
 INDEX. 
 
 [The references are to section.] 
 REMAINDERS Continued. 
 
 successive remainders, 300. 
 
 disposition of vested, 299. 
 
 relation of tenant and remainderman, 300. 
 
 vested and contingent, further distinguished, 301. 
 
 uncertainty of enjoyment, 301. 
 
 to a class, 302. 
 
 after happening of contingency, 303. 
 
 cross remainders, 304. 
 
 nature and origin of contingent remainder, 305. 
 
 classes of contingent remainders, 306. 
 
 alienation of, 307. 
 
 vested remainder after contingent, 308, 309. 
 
 alternate remainders in fee, 310. 
 
 restrictions upon nature of contingency legality, 311. 
 same remoteness, 312. 
 
 contingency must not abridge particular estate, 313. 
 
 how contingent remainder may be defeated, 314. 
 
 defeated by disseisin of particular tenant, 315. 
 
 defeated by merger of particular estate, 316. 
 
 defeated by feoffment by tenant, 317. 
 
 defeated by entry for condition broken, 318. 
 
 trustees to preserve, 319. 
 
 actions by remaindermen, 320. 
 
 origin and nature of rule in Shelley's case, 321. 
 
 requisites of the rule, 322. 
 RENT, 
 
 covenant of. See ESTATES FOB YEARS. 
 
 RENTS, 457-463. 
 defined, 457. 
 service, 458. 
 charge and seek, 459. 
 fee-farm rent, 460. 
 how created, 461. 
 
 how extinguished or apportioned, 462. 
 remedies for recovery of, 463. 
 
 REPAIRS, 
 
 liability for, in estates for life, 66. 
 in estates for years, 66, 146. 
 in mortgaged property, 265, 269. 
 in double ownership of house, 451. 
 
 REPURCHASE, 
 
 right to, distinguished from mortgage, 231. 
 1006
 
 INDEX. 
 
 [The references are to sections.] 
 RESERVATION, 
 
 distinguished from exception, 608. 
 
 RESULTING TRUSTS, 366, 367. 
 RESULTING USES, 443. 
 
 REVERSION, 291-295. 
 
 denned and explained. 291. 
 assignment and devise of, 292. 
 descendible to whom, 293. 
 dower and curtesy in, 294. 
 rights and powers incident to, 295. 
 
 REVOCATION 
 
 of appointment under a power, 416. 
 of a will general statement, 645. 
 
 by destruction of will. 646. 
 
 by marriage and birth of issue, 647. 
 
 by alteration or exchange of property, 648. 
 
 by subsequent will or codicil, 649. 
 
 by happening of expressed contingency, 650. 
 
 RIPARIAN PROPRIETORS. 
 
 right to alluvion and accretion, 487, 488. 
 right to use of water, 444-447. 
 boundary of land of, 597-600. 
 
 RIVERS, 
 
 what are navigable, 599. 
 
 as boundaries to land, 597, 598. 
 
 title to islands forming in, 488. 
 
 ROLLING STOCK 
 
 of railroads, whether real estate, 2. 
 
 RULE IN SHELLEY'S CASE, 
 nature and origin of, 321. 
 requisites of the rule, 322. 
 
 SALE OF LAND 
 
 by legislative acts under eminent domain, 525. 
 
 of persons under disability, 526. 
 by administrators and executors, 528. 
 under execution, 529. 
 for delinquent taxes, 531-533. 
 by decree of chancery, 530. 
 
 SCINTILLA JURIS, 352, 353. 
 
 1007
 
 INDEX. 
 
 [The references are to sections.] 
 SEAL, 
 
 necessary to a deed, 570-572. 
 
 not necessary to will, 631. 
 
 not necessary to a leasehold, 134. 
 
 SEALED INSTRUMENT, 
 
 when necessary to convey freehold, 549. 
 
 SEISIN, 
 
 what is, 24, 296, 297, 300, 336. 
 and disseisin explained, 491. 
 
 SERVIENT ESTATE, 427. 
 
 SEVERALTY, 
 
 estates in, 26, 174. 
 
 SHARES, 
 
 letting land upon, 160. 
 
 SHELLEY'S CASE, 
 rule in, 321-322. 
 
 SIGNING, 
 
 essential to deed, 570. 
 essential to will, 632. 
 
 SOCAGE TENURE, 23. 
 
 SPRINGS OF WATER, 
 rights in and to, 445. 
 
 STIRPES, 
 
 inheritance per, 474, 477. 
 
 STREET 
 
 or highway, as a boundary, 601. 
 
 STREAMS, 
 
 what are navigable, 599. 
 as boundaries, 596, 598. 
 
 SUBINFEUDATION, 22. 
 
 SUBLETTING, 
 
 distinguished from assignment, 139. 
 
 SUBPCENA, WRIT OF, 
 origin of, 326. 
 
 SUBROGATION 
 
 of insurance company to mortgagee, 248. 
 
 of mortgagee to mortgagor's rights against assignee or mortgagor 
 253. 
 1008
 
 INDEX. 
 
 [The references are to sections.] 
 SUCCESSORS, 
 
 a word of limitation in conveyance to corporations, when neces- 
 sary, 30. 
 in privity, acquire title by adverse possession, 499. 
 
 SUFFERANCE, TENANCY AT, 170-173. 
 denned and explained, 170. 
 incidents of the tenancy, 171. 
 how determined, 172. 
 effect of forcible entry, 173. 
 
 SUPPORT, 
 
 lateral and subjacent, 448. 
 
 SURRENDER, 
 
 a common law conveyance, 539. 
 
 SURETY, 
 
 when subrogated to rights of mortgagee, 286. 
 
 SURVIVORSHIP, RIGHT OF 
 
 in estates in entirety, 181-183. 
 in joint-tenancies, 177, 178. 
 
 TABLES OF CHANCES OF LIFE, 54, 116. 
 
 TACKING OF MORTGAGES, 262. 
 
 TAIL, ESTATES, 36-45. See ESTATES TAIL. 
 
 TAX-TITLE, 531. 
 
 its validity, 532. 
 
 judicial sales for delinquent taxes, 533. 
 
 TENANCY IN COMMON. See JOINT ESTATES. 
 
 TENANCY AT SUFFERANCE, 170-173. 
 denned and explained, 170. 
 incidents of, 171. 
 how determined, 172. 
 effect of forcible entry, 173. 
 
 TENANCY IN ENTIRETY. See JOINT ESTATES. 
 TENANCY IN PARTNERSHIP. See JOINT ESTATES. 
 
 TENANCY AT WILL AND FROM YEAR TOYEAR, 162-169. 
 what is a tenancy at will, 162. 
 how is tenancy at will determined, 163. 
 tenancy at will and from year to year distinguished, 164. 
 what now included under tenancies at will, 165. 
 tenancy at will arising by implication of law, 166. 
 
 64 100!)
 
 INDEX. 
 
 [The references are to sections.] 
 
 TENANCY AT WILL AND FROM YEAR TO YEAR Con f.r> tied. 
 qualities of tenancies from year to year, 167. 
 
 what notice required to determine tenancy from year to year, 168. 
 how notice may be waived, 1(59. 
 
 TENANCY FOR YEARS, 128-161. See ESTATES FOB YEARS. 
 
 TENDER, 
 
 of mortgage debt, effect upon mortgage, 254. 
 
 TENEMENTS, 
 
 meaning of term, 6. 
 
 TENENDUM, 
 
 a component part of deed, 587-609. 
 
 TENURE, 
 
 what is, 19. 
 
 under the feudal system, 20. 
 
 in the United States, 25. 
 
 between landlord and tenant, 130. 
 
 between tenant of particular estate and reversioner, 170-53, 295. 
 
 between mortgagor and mortgagee, 247. 
 
 between remainderman and particular tenant, 300. 
 
 TERMS FOR YEARS. See ESTATES FOR YEARS. 
 
 TESTAMENTARY PROVISION, 
 in lieu of dower, 116-118. 
 
 THREAD OF THE STREAM, 489. See FILUM AQU.E. 
 
 TIDE-WATER. 
 
 boundary line in, 598-600. 
 
 TITLE, 
 
 general classification, 469-470. 
 by purchase and by descent, 469. 
 original and derivative, 470. 
 
 TITLE BY ACCRETION, 487-489. 
 defined and explained, 487. 
 alluvion, 488. 
 filum aquce, 489. 
 
 TITLE BY ADVERSE POSSESSION, 490-502. 
 effect of naked possession, 490. 
 seisin and disseisin explained, 491. 
 disseisin and dispossession distinguished, 492. 
 actual or constructive possession, 493. 
 1010
 
 INDEX. 
 
 [The references are to sections.] 
 TITLE BY ADVERSE POSSESSION Continued. 
 
 what constitutes actual possession must be visible or notorious, 
 
 494, 495. 
 must be distinct and exclusive, 496. 
 
 hostile and adverse, 497. 
 
 when lawful entry is converted into adverse possession, 498. 
 disseisor's power to alien, 499. 
 when and how defeated, 500. 
 when and how made absolute, 501. 
 betterments, 502. 
 
 TITLE BY DESCENT, 471-483. 
 defined and explained, 471. 
 what law governs, 472. 
 consanguinity and affinity, 473. 
 lineal heirs, 474. 
 
 how degree of collateral relationship is computed, 475. 
 ancestral property, 476. 
 kindred of the whole and half blood, 477. 
 advancement hotchpot, 478. 
 posthumous children, 479. 
 illegitimate children, 480. 
 alienage, as a bar to inheritance, 481. 
 
 TITLE BY DEVISE, 628-653. 
 
 definition and historical outline, 628. 
 
 by what law governed, 629. 
 
 requisites of a valid will, 630. 
 
 a sufficient writing, 631. 
 
 what signing is necessary, 632. 
 
 proper attestation, 633. 
 
 who are competent witnesses, 634. 
 
 who may prepare the will holographs, 635. 
 
 what property may be devised, 636. 
 
 a competent testator, 637. 
 
 who may be devisees what assent necessary, 638. 
 
 devisee, incapacitated by murder of testator, 639. 
 
 devise and devisee clearly defined parol evidence, 640. 
 
 devises to charitable uses, 641. 
 
 lapsed devises, 642. 
 
 revocation of will, 643. 
 
 joint or mutual wills, 644. 
 
 by destruction, 645. 
 effect of alterations of will after execution, 646. 
 
 by marriage and birth of issue, 647. 
 
 1011
 
 INDEX. 
 
 [The references are to sections.] 
 TITLE BY DEVISE Continued. 
 
 by alteration or exchange of property, 648. 
 by subsequent will or codicil, 649. 
 defective will confirmed by codicil, 650. 
 probate of will, 651. 
 agreements as to testamentary disposition of property, 652. 
 
 TITLE BY EXECUTION, 529. 
 TITLE BY GRANT, 510-549. 
 
 title by public grant, 519-522. 
 
 title by involuntary grant, 523-533. 
 
 title by private grant, 534-549. 
 
 TITLE BY INVOLUNTARY GRANT, 523-533. 
 denned and explained, 523. 
 scope of legislative authority, 524. 
 eminent domain, 525. 
 from persons under disability, 526. 
 confirming defective titles, 527. 
 sales by administrators and executors, 528. 
 sales under execution, 529. 
 sales by decree of chancery, 530. 
 tax titles, 531. 
 validity of tax title, 532. 
 judicial sales for delinquent taxes, 533. 
 
 TITLE BY PRIVATE GRANT, 534-549. 
 defined and explained, 534. 
 
 principal features and classes of common law conveyances, 535. 
 feoffment, 536. 
 common law grant, 537. 
 lease, 538. 
 release, 539. 
 confirmation, 539. 
 surrender, 539. 
 
 conveyances under statute of uses, 540-544. 
 retrospection, 540. 
 covenant to stand seised, 541. 
 bargain and sale, 542. 
 
 future estates of freehold in bargain and sale, 543. 
 lease and release, 544. 
 
 what conveyances now judicially recognized, 545. 
 statutory forms of conveyance, 546. 
 quit-claim deed, 547. 
 
 dual character of common conveyances, 548. 
 is a deed necessary to convey a freehold, 549. 
 1012
 
 INDEX. 
 
 [The references are to sections.] 
 TITLE BY PUBLIC GRANT, 519-522. 
 of public lands, 519. 
 forms of public grant, 520. 
 
 relative value of patent and certificate of entry, 521. 
 pre-emption, 522. 
 
 TITLE BY OCCUPANCY, 484^86. 
 defined and explained, 484. 
 
 condition of public lands in United States, 485. 
 in estates per outer vie, 486. 
 
 TITLE BY ORIGINAL ACQUISITION, 484-518. 
 title by occupancy, 484-486. 
 title by accretion, 487-489. 
 title by adverse possession, 490-502. 
 statute of limitations, 503-507. 
 estoppel, 508-515. 
 abandonment, 516-518. 
 
 TORRENS LAW. See REGISTRATION OF TITLES. 
 
 TREES, 
 
 a part of land, 2, 8. 
 
 in whom is title to, when on boundary-line, 8. 
 
 rights of adjoining owners therein, 8. 
 
 TRUSTS. SEE USES AND TRUSTS, 360-384. 
 defined and explained, 360. 
 active and passive, 361. 
 executed and executory, 362. 
 express, 363. 
 
 implied, resulting and constructive, 364. 
 implied, 365. 
 
 resulting, in general, 366. 
 resulting from payment of consideration, 367. 
 constructive, 368. 
 interest of cestui que trust, 369. 
 liability for debts of cestui que trust, 370. 
 words of limitation, 371. 
 remainders in, their destructibilily, 372. 
 how created and transferred. 373. 
 statute of frauds in relation to, 374. 
 how affected by want of a trustee. 375. 
 removal of trustees, 376. 
 refusal of trustee to serve, 377. 
 survivorship in joint trustees, 378. 
 merger of interests, 379. 
 
 1013
 
 INDEX. 
 
 [The references are to sections.} 
 
 TRUSTS Continued. 
 
 rights and powers of trustees, 380. 
 
 powers and duties of cestuis que trust, 381. 
 
 alienation of trust estate, 382. 
 
 liability of third persons for performance of trust, 383. 
 
 compensation of trustee, 384. 
 
 UNDERLETTING, 
 
 distinguished from assignment, 139. 
 (see subletting.) 
 
 USER, 
 
 a mode of acquiring an easement, 429. 
 (see prescription.) 
 
 USES AND TRUSTS, 
 
 I. Uses before the statute of uses, 325-337. 
 
 pre-statement, 323. 
 origin and history of uses, 324. 
 use defined, 325. 
 enforcement of the use, 326. 
 distinction between uses and trusts, 327. 
 how uses may be created, 328. 
 same resulting use, 329. 
 same by simple declarations, 330. 
 who might be feoffees to use and cestuis que use, 331. 
 incidents of uses, 332. 
 
 what might be conveyed to uses, 333. 
 
 alienation of uses, 334. 
 
 estates capable of being created in uses, 335. 
 disposition of uses by will, 336. 
 how uses may be lost or defeated, 337. 
 
 II. Uses under the statute of uses. 338-349. 
 history of the statute of uses, 338. 
 when statute will operate, 339. 
 
 a person seised to use and in esse, 340. 
 
 freehold necessary, 341. 
 
 use upon a use, 342. 
 
 feoffee and cestui que use, same person, 343. 
 
 a use in esse, 344. 
 
 cestui que use in esse, 345. 
 
 words of creation and limitntio". H-lfi. 
 
 active and passive uses and trusts, 347. 
 
 uses to married women, 348. 
 
 cases in which the statute will operate, 349. 
 
 1014
 
 INDEX. 
 
 [The references are to sections.] 
 
 USES AND TRUSTS Continued. 
 
 III. Contingent, springing and shifting uses, 350-359. 
 future uses, 350. 
 
 contingent future uses, how supported, 351. 
 importance of the question, 352. 
 solution of the question, 353. 
 contingent uses, 354. 
 springing uses, 355. 
 shifting uses, 356. 
 
 future uses in chattel interests, 357. 
 shifting and springing uses, how defeated, 358. 
 incidents of springing and shifting uses, 359. 
 IV. Trusts, 360-384. 
 
 defined and explained, 360. 
 
 active and passive, 361. 
 
 executed and executory, 362. 
 
 express, 363. 
 
 implied, resulting and constructive, 364. 
 
 implied, 365. 
 
 resulting, in general, 366. 
 
 resulting from payment of consideration, 367. 
 
 constructive, 368. 
 
 interest of cestui que trust, 369. 
 
 liability for debts of cestui que trust, 370. 
 
 words of limitation, 371. 
 
 remainders in, their destructibility, 372. 
 
 how created and transferred, 373. 
 
 statute of frauds in relation to, 374. 
 
 how affected by want of a trustee, 375. 
 
 removal of trustees, 376. 
 
 refusal of trustee to serve, 377. 
 
 survivorship in joint trustees, 378. 
 
 merger of interests, 379. 
 
 rights and powers of trustees, 380. 
 
 rights and duties of cestuis que trust, 381. 
 
 alienation of trust estate, 382. 
 
 liability of third persons for performance of trust, 383. 
 
 compensation of trustee, 384. 
 
 VENDEE, 
 
 when occupying land under contract of sale, is tenant at will, 166. 
 
 VENDOR'S LIEN, 217-219. 
 
 1015
 
 INDEX. 
 
 [The references are to sections.] 
 
 VENTRE SA MERE, 
 
 child in, can inherit, 673. 
 
 VESTED ESTATES, 26. 
 
 VILLEINS, 23. 
 
 VOLUNTARY CONVEYANCES, 566. 
 
 WAIVER, 
 
 of notice by tenant from year to year, 169. 
 
 WARRANTY, 
 
 covenant of, 619-620. 
 
 the feudal, 621. 
 
 special covenants of, 622. 
 
 implied, 623. 
 
 actions on covenants of, 624, 147-626. 
 
 runs with the land, 625, 626. 
 
 WASTE, 
 
 definition and history of, 60. 
 
 what acts constitute, 61. 
 
 in respect to trees, 62. 
 
 in respect to mineral and other deposits, 63. 
 
 in management and culture of land, 64. 
 
 in respect to buildings, 65. 
 
 by acts of strangers, 66. 
 
 by destruction of buildings by fire, 67. 
 
 exemption from liability for, 68. 
 
 remedies for, 69. 
 
 between mortgagor and mortgagee, 264. 
 
 WATER COURSES, 
 
 artificial and natural, rights in, 446, 447. 
 
 WATER, 
 
 casements in the use of, 445. 
 what right of property in, 2. 
 
 WAY, 
 
 right of, 437. 
 
 private, 438. 
 
 of necessity, 439. 
 
 \vlio must repair the, 439. 
 
 public or high, 440. 
 
 WIFE'S SEPARATE ESTATE, 71, 348. 
 
 (see estates arising out of marital relation.) 
 1016
 
 INDEX. 
 
 [The references are to we/ ions.] 
 WILD LANDS, 
 dower in, 86. 
 
 WILLS. See DEVISE, or TITLE BY DEVISE. 628-654. 
 
 WITNESSES, 
 
 to deeds, 573. 
 to wills, 633. 
 
 YEAR TO YEAR, 
 
 tenancy from, 162-169. 
 
 See ESTATES AT WILL and FBOM YEAR TO YEAR. 
 
 1017
 
 A '"in in if in in [| (mi 111 jj i