f- K "... 25 31 Hen. VIII, C. 1, §§ 2, 3 (1539), Partition 455 32 Hen. VIII, C. 9 (1540), Purchase of Pretended Titles 67n 32 Hen. VIII, C.'37, § 1 (1540), Distress by Executor 270 21 Jac. I, C. 16, §§ 1, 2 (1623), Limitation 26 29 Car. II, C. 3, §§ 1-3 (1677), Statute of Frauds 148 4 & 5 Anne, C. 16, §§ 9, 10 (1705), Attornment 289 4 & 5 Anne, C. 16, § 27 (1705), Account by Co-Tenant 436 7 Anne, C. 20 (1708), Registration 666 8 Anne, C. 14, §§ 4, 6, 7 (1710), Debt for Rent 278 11 Geo. II, C. 19, § 14 (1738), Use and Occupation 295 2 & 3 W. IV, C. 71, §§ 2, 3 (1832), Prescription 114n 3 & 4 W. IV, C. 27, §§ 2, 7 (1833), Limitation 81n United States (D. C), 19 Stat. 202 (1876), Partition 456n 111. Annot. Stats. (1913), C. 83, §§ 1-11, Limitation 26 111. Annot. Stats. (1913), §§ 2260, 2262, 2263, Registration 667 Mass. Gen. Laws (1921), C. 183, §§ 4, 29, Registration 667 Mass. Gen. Laws (1921), C. 186, § 12, Estates at Will . 225 N. Y. Consol. Laws (1909), Real Property Law, §§ 291, 292, 315, 320, Regis- tration 667 N. Y. Laws (1920), C. 925, Art. 2, §§ 34-43, Limitation 30 Penn. St. (1920), §§ 8822, 8842, 8845, Registration 668 1 Professor Williston's summary of the statutes of the several states in regard to seals is to be found on page 607. SELECT CASES AND OTHER AUTHORITIES ON THE LAW OF CONVEYANCES AND RELATED SUBJECTS CHAPTER I ACCRETION GIFFORD V. YARBOROUGH 5 Bing. 165. 1828. Best, C J. ^ My Lords, tlie questions Avhich your Lordships have proposed for the opinion of the Judges is as follows : "A. is seised in his demesne as of fee of the manor of 1^., and of the demesne lands thereof, which said demesne lands were formerly bounded on one side by the sea. A certain piece of land, consisting of about 450 acres, by the slow, gradual, and imperceptible projection, allu- vion, subsidence, and accretion of ooze, soil, sand, and matter slowly, gradually, and imperceptibly, and by imperceptible increase in long time cast up, deposited, and settled by and from flux and reflux of the tide, and waves of the sea in, upon, and against the outside and extremity of the said demesne lands hath been formed, and hath settled, grown, and accrued upon, and against, and unto the said demesne lands. Does such piece of land so formed, settled, grown, and accrued as aforesaid, belong to the Crown or to A., the owner of the said demesne lands? There is no local custom on the subject." The Judges have desired me to say to your Lordships that land gradually and imperceptibly added to the demesne lands of a manor, as stated in the introduction to your Lordships' question, does not belong to the Crown, but to the owner of the demesne land. All the Avriters on the law of England agree in this : that as the king is lord of the sea that flows around our coasts, and also owner of all the land to, which no individual has acquired a right by occu- pation and improvement, tlie soil that was once covered by the sea belongs to him. But this right of the sovereign might, in particular places, or, under circumstances, in all places near the sea, be transferred to ^ In this report in Bingham, only the opinions of the Judges and of the Law Lords are given. Siih nom. The Kinq v. Yarhornnqh the case is fully reported in the King's Bench, 3 B. & C. 91 ; and in the House of Lords, 2 Bligh N. S. 147. 1 2 GIFFORI) ?'. YARROKOUGH [CHAP I certain of liis sul)j(utts by law. A law giving sucli riglits may be presumed from either a local or general custom, such custom heing reasonable, aud proved to have existed from time immemorial. Such as claim under the former must plead it and establish their pleas by proof of the existence of such a custom from time immemorial. General customs were in ancient times stated in the pleadings of those who claimed under them; as the custom of merchants, the cus- toms of the realm with reference to innkeepers and carriers, and others of the same description. But it has not been usual for a long time to allude to such customs in the pleadings, because no proof is required of their existence; they are considered as adopted into the common law, and as such are recognized by the Judges w^ithout any evidence. These are called " customs " because they only apply to particular descriptions of persons, and do not affect all the subjects of the realm ; but if they govern all persons belonging to the classes to which they relate, they are to be considered as public laws; as an Act of Parliament applicable to all merchants, or to the whole body of the clergy, is to be regarded by the Judges as a public Act. If there is a custom regulating the right of the owners of all lands bordering on the sea, it is so general a custom as need not be set out in the pleadings, or proved by evidence, but will be taken notice of by the Judges as part of the common law. We think there is a custom by which land from which the sea is gradually and im- perceptibly removed by the alluvion of soil, becomes the property of the person to whose land it is attached, although it has been the fundus maris, and as such the property of the king. Such a custom is reasonable as regards the rights of the king, and the subjects claiming under it ; beneficial to the public ; and its existence is established by satisfactory legal evidence. There is a great difference between land formed by alluvion, and derelict land. Land formed by alluvion must become useful soil by degrees too slow to be perceived : little of what is deposited by one tide will be so permanent as not to be removed by the next. An em- bankment of a sufficient consistency and height to keep out the sea must be formed imperceptibly. But the sea frequently retires sud- denly, and leaves a large space of land uncovered. When the authorities relative to these subjects are considered, this difference will be found to make a material distinction in the law that applies to derelict lands, and to such as are formed by alluvion. Unless trodden by cattle, many years must pass away before lands formed by alluvion would be hard enough or sufficiently wide to be used beneficially by any one but the owner of the lands adjoining. As soon as alluvion lands rise above the water, the cattle from the adjoining lands will give them consistency by treading on them; and prepare them for grass or agriculture by the manure which they will drop on them. When they are but a yard wide the owner of the adjoining lands may render them productive. Thus CHAP. l] GIFFORD V. YARBOROUGH 3 lands which are of no use to the king will be useful to the owner of the adjoining lands, and he will acquire a title to them on the same principle that all titles to lands have been acquired by individuals, viz. by occupation and improvement. Locke in a passage in his Treatise on Government, in which he describes the grounds of the exclusive right of property, says: ''God and man's reason commanded him to subdue the earth; that is, im- prove it for the benefit of life, and therein lay out something upon it that was his own, his labor. He that in obedience to that command subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property w^hich another had no title to, nor could without injury take from him." This passage proves the reasonableness of the custom that assigns lands gained by alluvion to the owner of the lands adjoining. The reasonableness is further proved by this, that the land so gained is a compensation for the expense of embankment, and for losses which frequently happen from inundation to the owners of lands near the sea. This custom is beneficial to the public. Much land which would remain for years, perhaps forever, barren, is in consequence of this custom' rendered productive as soon as it is formed. Although the sea is gradually and imperceptibly forced back, the land formed by alluvion will become of a size proper for cultivation and use; but in the mean time the owner of the adjoining lands will have acquired a title to it by improving it. The original deposit constitutes not a tenth part of its value; the other nine tenths are created by the labor of the person Avho has occupied it; and, in the words of Locke, the fruits of his labor cannot, without injury, be taken from him. The existence of this custom is established by legal evidence. In Bracton, book 2, cap. 2, there is this passage: "Item, quod per alluvionem agro tuo flumen adjecit, jure gentium tibi acquiritur. Est autem alluvio latens incrementum ; et per alluvionem adjeci dicitur quod ita paulatim adjicitur quod intelligere non possis quo momento temporis adjiciatur. Si autem non sit latens incrementum, contrarium erit." In a treatise which is published as the work of Lord Hale, treat- ing of this passage, it is said : " that Bracton follows in this the civil law writers; and yet even according to this the common law doth regularly hold between parties. But it is doubtful in case of an arm of the sea." Hale de Jure Maris, p. 28. It is true that Bracton follows the civil law, for the passage above quoted is to be found in the same words in the Institute, lib. 2, tit. 1, § 20. But Bracton, by inserting this passage in his book on the laws and customs of England, presents it to us as part of those laws and customs. Lord Hale admits tliat it is the law of England in oases between subject and bject; and it wouhl be difficult to find a reason why the same 4 GIFFORD V. YARBOROUGH [CHAP I question between the Crown and a subject should not be decided by the same rule. Bracton wrote on the law of England, and the situ- ation which he filled, namely, that of Chief Justice in the reign of Henry the Third, gives great authority to his writings. Lord Hale, in his History of the Common law (cap. 7), says, that it was much improved in the time of Bracton. This improvement was made by incorporating much of the civil law with the common law. We know that many of the maxims of the common law are bor- rowed from the civil law, and are still quoted in the language of the civil law. Notwithstanding the clamor raised by our ancestors for the restoration of the laws of Edward the Confessor, I believe that these and all the IsTorman customs which followed would not have been sufficient to form a system of law sufficient for the state of society in the times of Henry the Third. Both courts of justice and law writers were obliged to adopt such of the rules of the Digest as were not inconsistent with our principles of jurispru- dence. Wherever Bracton got his law from, Lord Chief Baron Parker, in Fortesque, 408, says, " As to the authority of Bracton, to be sure many things are now altered, but there is no color to say it was not law at that time. There are many things that have never been altered, and are now law." The laws must change with the state of things to which they relate; but, according to Chief Baron Parker, the rules to be found in Bracton are good now in all cases to which those rules are applicable. But the authority of Bracton has been confirmed by modern writers and by all the decided cases that are to be found in the books. The same doctrine that Bracton lays down is to be found in 2 Rolle's Abr. 170; in Com. Dig., tit. Prerogative (D. 61); in Callis (Broderip's edition), p. 51; and in 2 Bl. Com. 261. In the Case of the Abbot of Peterborough, Hale de Jure Maris, p. 29, it was holden : " Quod, secundum consuetudinem patriag, dom- ini maneriorum prope mare adjacentium, habebunt marettum et sabulonem per fluxus et refluxus maris per temporis incrementum ad terras suas costerae maris adjacentes projecta." In the treatise of Lord Hale it is said, " Here is custom laid, and he relies not barely on the case -without it." But it is a general, and not a local custom, applicable to all lands near the sea, and not to lands within any particular district. The pleadings do not state the lands to be wathin any district, and such a statement would have been neces- sary if the custom pleaded were local. The consuetudo patrice means the custom of all parts of the country to which it can be applied; that is, in the present case, all such parts as adjoin the sea. The case of The King v. Oldsworth, Hale de Jure Maris, p. 14, confirms that of the Abbot of Peterborough as to the right of the owner of the adjoining lands to such lands as were " secundum majus et minus prope tenementa sua projecta" (p. 29). That case was CHAP. l] GIFFORD V. YARBOROUGH 5 decided against the owner, because lie also claimed derelict lands against the Crown. Here it will be observed that there is a distinction made between lands derelict and lands formed by alluvion; which distinction, I think, is founded on the principle that I have ventured to lay down, namely, that alluvion must be gradual and imperceptible; but the dereliction of land by the sea is frequently sudden, leaving at once large tracts of its bottom uncovered, dry, and fit for the ordinary purposes for which land is used. But still what Avas decided in this case is directly applicable to the question proposed to us. The Judges are, therefore, warranted by justice, by public policy, by the opinions of learned writers, and the authority of decided cases, in giving to your Lordships' question the answer which they have directed me to give. My Lords, the answer to your Lordships' question is the unani- mous opinion of all the Judges who heard the arguments at your Lordships' bar. For the reasons given in support of that opinion I alone am responsible. Most of my learned brothers were obliged to leave town for their respective circuits before I could write what I have now^ read to your Lordships. I should have spared your Lord- ships some trouble if I had had time to compress my thoughts; but I am now in the midst of a very heavy Xisi Prius sittings, and am obliged to take from the hours necessary for repose the time that 1 have employed in preparing this opinion. If it wants that clear- ness of expression which is proper for an 0[)iiiion to be delivered by a Judge to this House, I hope that your Lordships will consider what I have stated as a sufficient apology for this defect. The Lokd Chancellok. My Lords, I beg to express my thanks to the learned Chief Justice, and to the Judges, for the attention they have paid to this subject ; and I have only to add that I entirely concur in the conclusion at which they have arrived; and I would recommend to your Lordships, as a necessary consequence of the opinion which has been expressed, that the judgment of the Court of King's Bench upon the matter should be affirmed. Earl of Eldon. My Lords. I heard only part of the argument, and therefore, I have some difficulty in stating my opinion in this case; but having had my attention called to subjects of the same nature on former occasions, it docs appear to me, I confess, after reading the finding of the jury, that the opinion of the Judges must be that which the learned Chief Justice has now expressed. I there- fore concur in the opinion the Lord Chief Justice has expressed. Judgment affirmed.^ 1 See Barney v. Keokuk, 94 U. S. 324; N,hro^kn v. Iowa, 143 U. S. 359; In the Matter of City of Buffalo, 206 .V. Y. 319; In the Matter of The Hull and Selby Ry. 5 M. & W. 327. In Steers v. City of Brooklyn, 101 N. Y. 51 (1885). Earl, J., said, p. 56: " When soil is by natural causes gradually deposited in the water opposite upland, and thu.s the water-line is carried further o>it into the ocean or other 6 GIFFORD V. YARBOROUGH [CHAP I public water, it becomes attacluMi to the upland, and the title of the upland owner is still extended to the water-line, and the accretion thus becomes his property. Natural justice requires that such accretion should belong to the upland owner so that he will not be shut off from the water, and thus converted into an inland rather than a littoral owner." In Attorney-General v. Chamber.';, 4 De G. & J. 55, 67-69 (1859), Lord Chelmsford said: "There is nothing, however, in any of the cases, or in the few te.xt .writers upon the subject, which hints at the distinction now sought by the Crown to be established between effects produced by natural and by artificial causes. In order to determine whether there is any ground for this distinction, it is essential to discover, if possible, the principle upon which the right to maritima incremcnta depends. " The law is stated very succinctly by Blackstone, vol. 2, p. 262, in these words: ' As to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma, or by dereliction, as when the sea shrinks back below the usual water-mark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimis non curat lex; and besides these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is, therefore, reciprocal consideration for such possible charge or loss; but if the alluvion or dereliction be sudden and considerable, in this case it belongs to the King, for as the King is lord of the sea. and as owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry.' " I am not quite satisfied that the principle de minimis non curat lex is the correct explanation of the rule on this subject; because, although the additions may be small and insignificant in their progress, yet, after a lapse of time, by little and little, a very large increase may have taken place which it would not be beneath the law to notice, and of which the party who has the right to it can clearly show that it formerly belonged to him, he ought not to be deprived. I am rather disposed to adopt the reason assigned for the rule by Baron Alderson. in the case of The Hull and Selby Railway Company, 5 M. & W. 327. viz., ' That which cannot be perceived in its progress is taken to be as if it never had existed at all.' And as Lord Abinger said in the same case. ' The principle' as to gradual accretion ' is founded on the necessity which exists for some such rule of law for the permanent protection and adjustment of property.' It must always be borne in mind that the owner of lands does not derive benefit alone, but may suffer loss from the operation of this rule; for if the sea gradually steals upon the land, he loses so much of his property, which is thus silently transferred by the law to the proprietor of the sea-shore. If this be the true ground of the rule, it seems difficult to understand why similar effects, produced by a party's lawful use of his own land, should be subject to a different law, and still more so if these effects are the result of operations upon neighboring lands of another proprietor. Whatever may be the nature and character of these operations, they ought not to affect a rule whicJi applies to a result and not to the manner of its production. " Of course an exception must always be made of cases where the oper- ations upon the party's own land are not only calculated, but can be shown to have been intended, to produce this gradual acquisition of the sea-shore, however difficult such proof of intention may be." See Kansas v. Meri- wether, 182 F. R. 457; Saunders v. N. Y. C. & H. Rd. Co., 144 N. Y. 75. It was held in Lovingston v. St. Clair County, 64 111. 56, affirmed 23 Wall. (U. S.) 46, that title to land made gradually by alluvion, passed to the riparian owner, although the accretion was aided by artificial structures on the land of other persons. Brundage v. Knox, 279 111. 450; Adams v. Roberson, 97 Kan. 198; Tatum v. St. Louis, 125 Mo. 647, accord. CHAP. l] FOSTER V. WRIGHT 7 FOSTER V. WRIGHT L. R. 4 C. P. D. 438. 1878. Motion for judgment.^ Action to try the right of fishing in part of tlif River Liine. The claim alleged that the plaintiff was the owner of the Camp House Farm, abutting on the river, and of the whole bed of the river abutting on the farm; that he also claimed in the alternative a several fishery, and likewise in the alternative a free fishery in that part of the river; that he also claimed the bed of the river and the said rights of fishing as lord of the honor and manor of Hornby, which comprised the river and the bed thereof ; and that the defendant had committed divers trespasses by entering upon the bed of the river and fishing therein, and preventing the plaintiff from fishing therein. The defence alleged (inter alia) that the defendant and those whose estate he had, were the owners of the Snabhousc estate, abutting on the river, and that the grievances complained of con- sisted of acts of fishery and other acts done by the defendant in that part of the river lying between its shore on the Snabliouse estate (opposite the Camp House Farm), and the middle of the bed of the river along the same part of the Snabliouse estate; the defend- ant denied that the plaintiff was OAvner or possessed of that part of the bed of the river. Issue. At the trial before Brett, L. J., at the Lancashire Spring Assizes, 1878, it appeared that no facts were substantially disputed except as to a question of boundary, viz., the extent to which the River Lune had encroached upon the land of the defendant. Some en- croachment was admitted, and the parties arranged that the ({ues- tion of boundary should thereafter be settled between them, and that the plaintiff should move for judgment upon the facts proved and admitted, of which those material were as follow. The river Lune, which is neither tidal nor navigable, flows through the manor or honor of Hornby, in Yorkshire. From an inquisi- tion post mortem taken in the thirteenth year of Edw. I., it appears that one Sir Geoffrey de Seville held the manor with the appur- tenances, and that he " also held the fishery of all the waters of Hornby." The manor passed down into the possession of George Earl of Cardigan, who in 1711 enfranchised some land in the town- ship of Grassingham within the manor. This land, called Wood's Ayre, did not then abut on tlie river. By the deed of enfranchisement the lord excepted and reserved from the grant of the premises his seignioral rights and services, 1 This report was postponed pending an aitpeal. The case came before the Court of Appeal dunn}i the last sittinjis, but was there settled by the parties. 8 FOSTER V. WRIGHT [CHAP. I tithes and compositions, and also all manner of free warrens. . . . Together also with free liberty of hunting, hawking, fishing, and fowling in and upon the premises or any part thereof, at seasonable and convenient times of the year. In 1780 the manor was for- feited on the attainder of its lord. Colonel Charteris, but was re- granted, with free liberty of fishing in all the waters of the manor, and in 1783 came into the hands, of Mr. John Marsden. His heir- at-law, after establishing his right to it in the action of Tatham v. Wright, 2 Kuss. & My. 1 ; 1 A. & E. (Ex. Ch.) 3, sold it, and the purchaser afterwards sold it to the plaintiff, who is now the lord of the manor. The enfranchised land, Wood's Ayre, in the township of Grass- ingham, came into possession of the defendant. It is adjacent to the part of the manor lands belonging to the plaintiff and in the township of Tarleton. The boundary of the townships was also the boundary between the two properties. Prior to 1838 the River Lune flowed wholly within these Tarleton lands of the plaintiff. It ran parallel to the defendant's land, but land belonging to the plaintiff was between the river and the boundary of the defendant's land. From observations made and noted on a map by a steward of the defendant's predecessor in title, it appeared that between 1838 and June, 1843, the river had by invisible progress moved sideways towards the defendant's land and was wearing away the plaintiff's land which intervened. By November, 1843, it had moved further in the same direction, and it continued to do so until it encroached to some extent upon the land of the defendant, who, in 1853, stopped further encroachment by making an embankment. As a strip of his land now formed part of the river bed, he claimed a right to go upon that part to catch salmon which came there, and in asser- tion of such right he committed the acts alleged by the plaintiff to be trespasses. Cur. adv. vult. July 3. LiNDLEY, J. The plaintiff in this case is lord of the manor of Hornby, and claims the exclusive right to fish in the River Lune between two points where that river is neither tidal nor navigable; and before the enfranchisement hereafter mentioned, the river between those points was locally situate within the manor of Hornby. This manor formerly belonged to the Crown. In the reign of Edward I. it was granted, with the right to fish in all the waters of the manor; and it remained in private hands for several centu- ries. In the year 1711 certain lands held of the manor, but not abutting on the river, were enfranchised, and these lands now be- long to the defendant. After this enfranchisement the manor be- came forfeited to the Crown; but it was re-granted, with the free liberty of fishing in all its waters, to the predecessors in title of the plaintiff". CHAP. l] FOSTER V. WRIGHT 9 From the earliest times, the lands adjoining the river on both sides of it belonged to the lord; and such was the case both when the defendant's lands were enfranchised, and when the manor was re-granted by the Crown as above mentioned. In other words, until comparatively modern times, the river did not abut on the lands of the defendant. Neither when the defendant's lands were enfranchised, nor when the manor was re-granted out, did any part of the river either abut on or flow through the defendant's lands. Under these circumstances I am unable to see that the deed of enfranchisement has any bearing on the case. That deed re- served to the lord whatever rights of fishing he had in any water flowing through or bounding the lands enfranchised; but it did no more, and at the date of the enfranchisement the Lune was not one of such waters; neither did the re-grant from the Crowm con- fer upon the grantee of the manor any right to fish in the river as distinguished from any other waters of the manor. The counsel for the defendant suggested that the terms of the new grant did not confer on the grantee any right of fishery, except as incidental to the ownership of the land on the banks and under the river; but it was conceded that as the river was then situate, the grantee from the Crown acquired such ownership; and, in the view which I take of this case, it is not material to determine whether the grantee acquired his exclusive right to fish in the river as an incident to the ownership of the bed of the river, or whether he acquired an exclusive right to fish independently of such ownership. Since the re-grant of the manor, the course of the river between the points above referred to has gradually changed; its bed has gradually approached nearer and nearer to the defendant's land; and now some portion of that land has become part of the river bed. This part can still be identified, and its boundary can be ascertained. The question we have to determine is, whether the plaintiff's ex- clusive right of fishing extends over so much of the water as flows over land which can be identified as formerly part of the defend- ant's property. I am of opinion that it does. The change of the bed of the river has been gradual; and although the river-bed is not now where it was, the shifting of tbe bed has not been perceptible from hour to hour, from day to day, from week to week, nor in fact at all, except by comparing its position of late years with its position many years before. Under these circumstances, I am of opinion that, for all purposes material to the present case, the river has never lost its identity, nor its bed its legal owner. Gradual accretions of land from water belong to the owner of the land gradually added to: Rr.r v. Yarhoronqh. 3 "R. tS: C. 91; .') Bing. 163; and, conversely, liuid gradually encroiidicd n|)oii by water ceases to belong to the former owner: //; rr IIiilJ and Selhi/ Ry. Co., 5 M. k W. 327. The law on tliis subject is based upon the 10 FOSTER V. WRIGHT [CHAP. I impossibility of identifying from day to day small additions to or subtractions from land caused by the constant action of running water. The history of the law shows this to be the case. Our own law may be traced back through Blackstone (vol. ii. c. 16, pp. 261, 262), Hale (De Jure Maris, cc. 1, 6), Britton (book ii. c. 2), Fleta (book iii. c. 2, § § 6, &c.), and Bracton (book ii. c. 2), to the Institutes of Justinian (Inst. ii. 1, 20), from which Bracton evidently took his exposition of the subject. Indeed, the general doctrine, and its application to non-tidal and non-navigable rivers in cases where the old boundaries are not known, was scarcely contested by the counsel for the defendant, and is well settled. See the authorities above cited. But it was contended that the doctrine does not apply to such rivers where the boundaries are not lost; and passages in Britton (ubi supra), in the Year-Books (22 Ass. p. 106, pi. 93), and in Hale, De Jure Maris (book i. c. 1, citing 22 Ass. pi. 93), were referred to in support of this vicAv : Foirl v. Lacy, 7 H. & IST. 151, was also relied upon in support of this distinction. Britton lays down as a general rule that gradual encroachments of a river inure to the benefit of the owner of the bed of the river; but he qualifies this doctrine by adding, " If certain boundaries are not found." The same quali- fication is found in 22 Ass. pi. 93, which case is referred to in Hale, ubi supra. But, curiously enough, this qualification is omitted by Callis in his statement of the same case : see Callis, p. 51 ; and on its being brought to the attention of the court in In re Hull and Selby Ry. Co., the court declined to recognize it, and treated it as incon- sistent with the principle on which the law of accretion rests. Lord Tenterden's observations in Rex v. Yarborough, 3 B. &■ C. 106, are also in accordance with this view; and although Lord Chelmsford in Attorney-General v. Chambers, 4 De G. & J. 69-71, doubted whether, where the old boundaries could be ascertained, the doctrine of accretion could be applied, he did not overrule the decision of In re Hull and Selby Ry. Co., which decided the point so far as encroachments by the sea are concerned. Upon such a question as this I am wholly unable to see any differ- ence between tidal and non-tidal or navigable or non-navigable rivers; and Lord Hale himself says there is no difference in this respect between the sea and its arms and other waters : De Jure Maris, p. 6. The question does not depend on any doctrine peculiar to the royal prerogative, but on the more general reasons to which I have alluded above. In Ford v. Lacy the ownership of the land in dispute was determined rather by the evidence of continuous acts of OAvnership since the bed of the river had changed, than by reference to the doctrine of gradual accretion; and I do not regard that case as throwing any real light on the question I am considering. Supposing, therefore, that the plaintiff's right to fish in the Lune depends on his ownership of the soil of the river-bed, I am of opinion that the plaintiff hns that right; for if he was the owner of the old CHAP. I FOSTER V. WRIGHT 11 bed of the river, he has day l)y day and week by week becouie the owner of that whieli has gradually and iiiipereeptibly become its present bed; and the title so gradually and im percept ibl}' acquired cannot be defeated by proof that a portion of the bed now capable of identification was formerly land belonging to the defendant or his predecessors in title. But, supposing the plaintiff's right of fishing not to have been the consequence of his ownership of the soil, — supposing his to have had only a right to fish in the Lune, — I am of opinion that he has the same right of fishing in the river in its present bed as he had of fishing in the river in its old bed. I am wholly unable to see upon Avhat principle a change in the course of a river, so gradual that it cannot be perceived until after the lapse of a long interval of time, can affect the rights of those entitled to use it, whether for fishing or any other purpose; nor is there any authority for holding them to be affected thereby. The Mayor of Carlisle v. Graham, Law Rep. 4 Ex. 361, is no such authority; for in that case the old and the new beds of the river existed as two distinct beds; the new bed was not, as here, formed by the old one gradually shifting its place: then, the Avater gradually left the old bed, and followed an entirely new course always distinguishable from the old ; whilst here, there has been and is only one bed, and its change of place has only become perceptible after the lapse of years. The physical changes are totally different in the two cases. Whether, therefore, the exclusive right of the plaintiff to fish in the river in question is an incident to his ownership of the soil or is independent thereof, I am of opinion that he is still entitled to such exclusive right in the river as it now exists, and as it will exist if it continues gradually to change its course; and consequently I am of opinion that judgment ought to be entered for the plaintiff. Lord Coleridge, C. J. I have had the advantage of reading the judgment prepared by my Brother Lindley, and I entirely concur in the result at which he has just arrived. ]^or should I add any- thing, but that I am not quite satisfied to base my conclusion so much as he does upon the proposition that the grant of the fishery, in such terms as are used in the two grants in this case, carries with it the right of the soil, and that the soil therefore of the River Lune as it varies gradually from time to time passes irrespective of the medium fihim to the plaintiff. I do not say that it does not, hut I am not satisfied that it does. If the whole soil over Avhich the River Lune flowed passed by the first grant, and, after the death of Colonel Charteris, by the second to the predecessor in title of the plaintiff. I think the consequence as to gradual accretion, which my Brother Lindley draws from that premise, does in legal reasoning follow from it. But I confess I somewhat doubt the premise. The safer ground appears to me to he that the language as to the fishery in both the earlier and the later grants conveys what it expresses, — a right to 12 FOSTER V. WRIGHT [CHAP. I take fish, and to take it irrespective of the ownership of the soil over which the water flows and the fish swim. The words appear to me to be apt to create a several fishery, /. c, as I understand the phrase, a right to take fish in alieno solo, and to exclude the owner of the soil from the right of taking fish himself; and such a fishery I think ■would follow the slow and gradual changes of a river, such as the changes of the Lune in this case are proved or admitted to have been. I agree, for the reasons given by my Brother Lindley, that the case of Mayor of Carlisle v. Graham is distinguishable from the case before us; and upon these grounds, I concur in thinking that our judgment should be made for the plaintiff. Judgment for the plaintiff} 1 Compare Randolph v. Hinck, 277 111. 11. In Hindson v. Ashby, L. R. [1896] 2 Ch. 1, plaintiff's predecessors ac- quired a piece of land bounded on one side by the river Thames. The land ended in an almost pei-pendicular bank five or six feet high, to which the water reached. The water later receded, and a deposit took place at the foot of the bank. The court did not consider it necessary to decide whether the plaintiffs were entitled to this deposit as an accretion, but it inti- mated that they were not. Lindley, L. J., said, page 13: "Whether, apart from the statute of limitations, the accretions, or the land left by the water, can become the property of the plaintiffs or cease to be the property of the defendant, is a question of considerable difficulty, and one which, in my view of the facts, it is not now necessary to decide. Passages were cited from Bracton, Britton, Fleta, and Hale, De Jure Maris, c. i. and vi., and the Year-Book, 22 Ass. fo. 106, pi. 93, to shew that the doctrine of accretion does not apply where boundaries are well defined and knowTi. This may be if the boundary on the waterside is a wall, or something so clear and visible that it is easy to see whether the accretions, as they become percep- tible, are on one side of the boundary or on the other. But I am not sat- isfied that the authorities referred to are applicable to cases of land having no boundary next flowing water, except the water itself. The cases of Rex v. Lord Yarborough, affirmed by the House of Lords in Gifford v. Lord Yar- boroiigh and /?? re Hull and Selby Ry. Co., seem opposed to those authorities, if applied to fluctuating water boundaries. The judgments in Scratton v. Brown point in the same direction. On the other hand, Attorney-General V. Cha7)ibers seems the other way. But it is unnecessary to dwell more on this question, and I leave it for reconsideration and decision when it shall arise." A. L. Smith, L. J. said, p. 27: "I must add that I very much doubt if the plaintiffs can invoke the doctrine of accretion as applying to a case where, as here, the old fine of demarcation between the plaintiffs' land and the river has always been in existence and still remains patent for all to see. I allude to the old 6 ft. bank. " It cannot be denied that authority is to be found in the books, for m- stance, in Hale de Jure Maris, Britton, Fleta, Bracton, the Institutes of Justinian, and the Year-Books. all of which will be found referred to by Lindley, L. J., when Lindley, J., in his judgment in Foster v. Wnght, and also in the judgment of Chelmsford, L. C. in Attorney-General v. Chambers, Rex V. Lord Yarborough, and in other cases, which would lead to the con- clusion, that in a case with such metes and bounds ever existing as in the present, the doctrine of accretion would not apply. " The case upon which the counsel for the plaintiffs relied to shew that al- CHAP. l] DEERFIELD V. ARMS 13 DEERFIELD v. ARMS 17 Pick. (Mass.) 41. 1835. Writ of entry to recover a parcel of land containing about five acres, recently formed by alluvial deposits on the margin and bed of Deerfield River. The land lies and has been formed in a bend of the river curving southerly and easterly from the river. The case was tried before Shaw, C. J. 'The demandants claimed the land in question as owners of the land on the east bank of the river at the time of the accretion. The tenant claimed to hold it as an accretion to his own land lying higher up on the southerly and easterly side of the bend on the river. though there might be metes and bounds, yet the doctrine of accretion did apply, was that of Foster v. Wright. In that case, in which the question was as to whether the owner of a fishery in u river could follow his fishery when the river gradually and imperceptibly changed its course and ate into the soil of another, although after many years the encroachment upon that other's soil could be identified, Lindley, J., held that it could be followed; and, if I may be permitted to say so, I agree with him ; but that learned judge said : ' The change of the bed of the river has been gradual ; and, although the river bed is not now where it was, the shifting of the bed has not been perceptible from hour to hour, from day to day, from week to week, nor in fact at all, except by comparing its position of late years with its position many years before.' This, I would point out, is not so in the present case; for, as before stated, the old 6 ft. bank has been ever standing where it is. There .stands the old line of demarcation of the plaintiffs' land, and there it has stood clearly defined whenever the deposit of alluvium by reason of the silting up of sand became such as to be in itself apparent, and then and at that very moment, when the first, and indeed every subsequent accretion, became apparent, so also at the same identical time it became perceptible to the ordinary observer that the accretion so formed was no part of the plaintiffs' land. ■' This certainly differentiates this case from Foster v. Wright in an essen- tial particular; and, as at present advised, I doubt extremely whether the doctrine of accretion applies at all to the present case. •' The whole doctrine of accretion is based upon the theory that from day to day, week to week, and month to month a man cannot sec where his old line of boundary was by reason of the gradual and imperceptible accre- tion of alluvium to his land. How can this apply to a case like the present, when the whole thing is at once patent?" In Widdecovibe v. Chiles, 173 Mo. 195, lot A, owned by the defendant, had originally been separated from the Missouri River by lot B. The river gradually wa.shed away all of lot B and a part of lot A, anil later grad- ually restored all of both lots and added land to what had originally been lot B. The original bounds of lot A were known. Held, that, when the intervening lot B had b{>en washed away, lot A became riparian land, and the defendant was entitled to all the land so restored and added. Accord, Welles V. Bailey, 55 Conn. 292; Peuker v. Canter, 62 Kan. 363; Yearsley v. Gripple, 104 Neb. 88. Contra, Ocean City Association v. Shriver, 64 N. J. L. 550; Allard v. Curran, 41 S. D. 73. See Biu^h v. Alexander, 134 Ark. 307; Belle fontame Co. v. Niedringhaus, 181 III. 426; Gradi/ v. Royar, 181 S. W. (Mo.) 428, 14 DEERFIELD V. ARMS [CHAP. I One question, reserved for the opinion of the whole court, was whetlier the demandants had proved their title to the laud ou the east bank of the river in virtue of which title alone they could claim the accretion. This depended almost exclusively on the early records of the proprietors of the township of Deerfield, and the town and the parish surveys, grants, and other documents. The tenant contended, that supposing the demandants' title to the land on the east bank to be established, still it would not entitle them to any part of the alluvial formation, because he maintained that he and those under whom he claimed had been in possession of some part of the alluvial formation for near sixty years; and that as it commenced making on the southwesterly side, it had never reached the east bank of the river, and therefore it could not be said to be an accretion to it. It was testified that between the eastern bank of the river, and the alluvial land in controversy, there is a low place into which a small brook falls; and that often there is water in it, but that sometimes it is dry. If the court should be of opinion that the demandants were entitled to recover any part of the land in controversy, the amount and proportion to which they were entitled was to be determined by an assessor or commissioners, conformably to such rules as the court should establish. Shaw, C. J., delivered the opinion of the court. There are sev- eral points in this cause to which it seems proper to allude in the outset, and upon which we entertain no doubt. In the first place it seems very clearly settled that, upon all rivers not navigable (and all rivers are to be deemed not navigable above where the sea ebbs and floAvs), the owner of land adjoining the river is prima facie owner of the soil to the central line, or thread of the river, subject to an easement for the public to pass along and over it with boats, rafts, and river craft. This presumption will prevail in all cases, in favor of the riparian proprietor, unless controlled by some express words of description which exclude the bed of the river, and bound the grantee on the bank or margin of the river. In all cases, therefore, where the river itself is used as a boundary, the law will expound the grant as extending ad filum medium aquce. We also consider it as a well-settled principle of law, resulting in part from the former, that where land is formed by alluvion, in a river not navigable, by slow and imperceptible accretion, it is the property of the owner of the adjoining land, who for convenience, and by a single term, may be called the riparian proprietor. And in applying this principle, it is quite immaterial whether this allu- vion forms at or against the shore, so as to cause an extension of the shore or bank of the river, or whether it forms in the bed of the river and becomes an island. And where an island is so formed in the bed of a river as to divide the channel and form partly on each side of the thread of the river, if the land on the opposite sides CHAP. I J DEERFIELD V. ARMS 15 of tliL' river belong to different [iroprietors, the island will l»e divided, according to the original thread of the river, between the i-ival proprietors. This view of the subject disposes of one of thi' (questions of fact, in relation to which some evidence was given; namely, whether the alluvial formation in controversy was separated by water from the eastern bank of the river, claimed by the demandants as ripa- rian proprietors, or whether the newly formed land, at that point, extends quite to the eastern bank. We think this fact entirely immaterial to the rights in controversy between these parties. But by far the most difficult question in this cause, is, whether the demandants have established a title to the land lying on the east- erly bank of the river at the place in question, so as to constitute them riparian proprietors, in which character alone they can main- tain the claim which they assert in this action. It is true that the title to the land on the easterly side of the river is not claimed by the defendant; still, the demandants must recover by the strength of their own title and not by the weakness of the defendant's, and as the demandants aver that they are seised of this land, and this aver- ment is material to their title, and is traversed and put in issue by the defendant, it is a fact to be proved. As, however, no counter title is set up by the defeudanV, it is obvious that a prima fario title will be sufficient. [The Chief Justice here went into an examination of the evidence of the demandants' title to the land on the eastern side of the river at the place in question, drawing the conclusion that they were seised of the same. He then proceeded :] Considering that the town have esta])lished their title as riparian proprietors to a certain portion of the alluvial formation in question, it only remains to inquire how it shall be divided. This is a curious, and in many aspects in which it may be presented would be a very difficult, subject, as well as the analogous one of the division of flats, or land bounding on salt water, over which the tide ebbs and flows, among coterminous riparian proprietors, were it necessary to pre- scribe a general rule applicable to all supposable cases. But 1 do not think it necessary to discuss this subject at large, because the circumstances of the present case do not require it. As neither of the riparian proprietors can establish any claim supe- rior to the other, it is manifest that the newly acquired land must be divided equally between the parties, in pro])ortiou to the land which they respectively hold as riparian proprietors, and in virtue of which the law attributes to them this acquisition. The facts of the present case show, and it appears by the plan, which is made part of the case, that the alluvion is formed in a bend of the river, extending along in front of \\\o lands of several different owners. The object is, to estaldish a rule of division among tlies<' pro- 16 DEERFIELD V. ARMS [CHAP. I prietora, which will do justice to each, where no positive rule is prescribed, and where we have no direct judicial decisions to guide us. The case most analogous to the present, which has occurred in this Commonwealth, is that of the division of flats ground, among coterminous proprietors, conformably to the general principle laid down in the Colony ordinance, giving to the proprietors of lands bounding on salt water, where the tide ebbs and flows, propriety to low-water mark, with some qualifications. Rust v. Boston Mill Corp., 6 Pick. 158; Emerson v. Taylor, 9 Greenl. 44, In both cases we think two objects are to be kept in view in making such an equitable distribution; one is, that the parties shall have an equal share in proiDortion to their lands, of the area of the newly formed land, regarding it as land useful for the purposes of cultivation or otherwise, in which the value will be in proportion to the quantity; the other is, to secure to each an access to the w^ater, and an equal share of the river-line in proportion to his share of the original line of the water, regarding such water-line in many situations as principally useful for forming landing-places, docks, quays, and other accommodations with a view to the benefits of navigation, and as such constituting an important ingredient in the value of the land. Without attempting to establish a rule of general application, we think that the one which shall most nearly, in general, accomplish these two conditions, will come nearest to doing justice. A rule which appears to us to be applicable to the present case and meets the required conditions, is found in a work of the civil law, cited by the learned counsel who opened the case for the de- mandants, entitled " A Collection of Xew Decisions," by Denisart, published in France in 1783. It is in the form of a dictionary, and this subject is discussed under the title, Atterissement. The rule suggested in this work is founded upon the obvious con- sideration already alluded to, that in many cases lands which border upon navigable rivers derive a great part of their actual value from that circumstance, aiid from the benefit of the public easement thereby annexed to such lands; and that being wholly deprived of the benefit of that situation would operate as a great hardship and do real injustice to a riparian proprietor, although he should obtain his full proportion of the land measured by the surface. This injustice will be avoided by the proposed rule, in con- formity with which each proprietor will take a larger or smaller proportion of the alluvial formation, and of the newly formed river or shore line, according to the extent of his original line on the shore of the river. The rule is, 1. To measure the w'hole extent of the ancient bank or line of the river, and compute how many rods, yards, or feet each riparian proprietor owned on the river line. 2. The next step is, supposing the former line, for instance, to amount to 200 rods, to divide the newly formed bank or river line into 200 equal parts, CHAP. I J DEERFIELD V. ARMS 17 jiud appropriate to each pi-o|)ri<^t("tr :is many i)ortions of this new river line as he ownod rods on the old. i'licn, to coniplcto the divi- sion, lines arc to 1k^ drawn from the points at which the proprietors respectively bounded on the old, to the points thus determined as the points of division on the newly formed shore. The new lines, thus formed, it is obvious, will be either parallel, or divergent, or convergent, according as the new shore line of the river equals or exceeds or falls short of the old. This mode of distribution secures to each riparian proprietor the benefit of continuing to hold to the river shore, whatever changes may take place in the condition of the river by accretion; and the rule is obviously founded in that principle of equit}^ upon which the distribution ought to be made. It may require modification, perhaps, under particular circumstances. For instance, in applying the rule to the ancient margin of the river, to ascertain the extent of each proprietor's title on that margin, the general line ought to be taken, and not the actual length of the line on that margin if it happens to be elongated by deep indentations or sharp projections. In such case it should be reduced, by an equitable and judicious estimate, to the general available line of the land upon the river. We are not aware that in the present case any such modification will be necessary, and therefore the general rule may be applied, and will do justice between the parties.^ 1 Malone v. Mohbs, 102 Ark. 542; Reeves v. Muore, 105 Ark. 598; Peoria V. Central Bank, 224 111. 43 (but see Kehr v. Snyder, 114 111. 313); Berry v. Hoogendoorn, 133 Iowa, 437; DeLassus v. Faherty, 164 Mo. 361; Miller v. Lloyd, 275 Mo. 35; Batchelder v. Keniston, 51 N. H. 496; Hathaway v. Milwaukee, 132 Wis. 249, accord. See Jones v. Johufiton, 18 How. (U. S.) 150; Johnftton v. Jones, 1 Black (U. S.) 209; Nirdlinger v. Steren.% 262 F. R. 591; Dclord v. New Orleans, 11 La. Ann. 699; Smith v. Leavenworth, 101 ]\ri.-^s. 238; Benne v. Miller, 149 Mo. 228; Gorton v. Rice, 153 Mo. 676. The rules on the cognate subject of dividing flats are given in a note by the reporter to the case of Commonwealth v. Roxbury, 9 Gray (Mass.) 451, 521-523. See Trustees of Hopkins Academy v. Dickinson, 9 Cush. (Mass.) 544, where it is said, p. 552 : " In asc-ertaining the thread of the river, it will be proper to take the middle line between the shores upon each side, without regard to the channel, or lowest and deepest part of the stream." An accretion to islands, see Wilson v. Watson, 144 Ky. 352; Archer v. Southern Ry. Co., 114 Miss. 403. On division between island and mainland proprietors, see Menominee Co. v. Scidl, 149 Wis. 316; Ann. Cas. 1914 A 483; Ann. Cas, 1918 E 1000. I.>^lands attached to shore by accretion, 6 L. R. A. N. s. 194. Islands ncwlv formed, 35 L. R. A. N. s. 229; Bracton Lib. II. c. 2 Fol. 9 A; De Jure Maiis, 17. 18 MILLER V. HEPBURN [chap. I MILLEK /;. HEPBURN 8 Bush. (Ky.) 326. 1871 Judge Hardin delivered tlie opinion of the court. The appellees, claiming title as the children and representatives of "William Preston, deceased, to some lots of ground in the city of Louisville, situated near the foot of Jackson Street, and between Fulton Street and the Ohio River, instituted their actions against the appellants in June, 1867, for the recovery of parts of the lots then in the defendants' possession, they owning and occupying an A/£S. /TfVER LINE G- H. m4. 1830. J. A \ K. RIVER LINE 1867. OHIO RIVER. adjacent lot, which, with those of the plaintiffs and the interference in controversy, is shown by the diagram here inserted; the plaintiils owning in the largest lot, 'No. 4, the lots in controversy, which when laid off in 1830 abutted on the Ihen line of the river at the letter G, but noAv, as contended by the appellees, are in consequence of an alluvion formed in front of them, and the consequent recession of the river, prolonged to the present water-line at the letter H; while the defendants, who own the lot No. 5, claim that as the accretion was formed and the river receded, their west line, which CHAP. I.J MILLER V. HEPBURN 19 terminated originally at the letter G, was graduall}^ extended till it reached the present water-line at the letter K, crossing each of the plaintiffs' lots extended, as claimed by them, so that the ground in dispute is that indicated by the letters G, H, I, J. The defences involved both a denial of the alleged title of the plaintiffs and an assertion of right in the defendants for substan- tially the following reasons: F'n'st, that the law continued the natu- ral course of their side-line from the point G towards K as the river receded; second, that as the accretion was formed, said line was extended and adopted by the concurrence and acquiescence of the owners and tenants in possession of the adjacent lots; third, that the plaintiffs were barred by continued adverse possession of the ground in controversy. The court was of the opinion that plaintiffs, as riparian ])fopri('tors of their lots originally fronting on the river, were entitled to the land added thereto by accretion, to be ascertained by extending tne original river frontage of the respective lots, as nearly as practicable, at right angles with the course of the river to the thread of the stream, and rendered judgments in accordance with that conclusion; and these appeals are prosecuted for the reversal of those judgments. The first question to be decided is, \vhether the rule adopted by the court for determining the extent of the plaintiffs' recovery, if they were entitled to recover at all, was correct. In the very able and ingenious argument of the counsel for the appellants in this court, the general principle is not questioned that in ascertaining the rights of a riparian proprietor no importance should be given to the quantity or figure of his entire tract, nor the course of its side- lines; and we presume it unnecessary to resort to authority or illus- tration to prove that the appellants could not acquire title to the ground in controversy merely because of the oblique direction of the western side-line of their lot with reference to the general course of the river. But it is insisted for the appellants, in sub- stance, that the court erred in adopting an arbitrary method of determining the relative rights of the parties by extending the side- lines of the plaintiffs' lots from their respective original ievmini on the shore as nearly as i)Ossible at right angles with the course of the river to the centre of the stream, instead of so drawing the lines as to give to each riparian proprietor such a proportion of the alluvial soil as the total extent of his front-line bears to the total quantity of the alluvial soil to be divided, without regard to the general course of the river or the centre of the stream; and we are referred to the cases of Deerfleld v. Arms, 17 Pickering, 41; Jones et al. v. Johnston. 18 Howard, 150; Johnston v. Jones et al., 1 Black, 209, as authority for this method of equitable apportion- ment. In the first cited case it does not distinctly ap])onr whether Deer- field River, on which the alluvion was formed, was tci-linically and 20 MILLER V. HEPBURN [CHAP. I according to the common law a navigable stream; all rivers Lcing thereby deemed not navigable " above where the sea ebbs and flows." But it is apparent from the reasoning of the court in that case, as well as the other two cases cited, that the rules intended to be ap- plied were those usually adopted for determining the relative rights of riparian owners of the banks of navigable rivers and lakes, and the division of flats on the sea-shore, or on coves in which the tide ebbs and flows. And as is properly said in the able and lucid opin- ion delivered by the special judge who decided these cases in the court below : " The rules thus laid down may be eminently proper in the division of the accretion upon the shores of navigable streams where the tide ebbs and flows, because the proprietor adjoining the edge of such river only owns to the water's edge, and low water is the end of the line; and hence, as the shore changes, the respec- tive lines on such shore must change ; but in a river not navigable — that is, where the tide does not ebb and flow — the proprietor does not stop at low water, but by permission and sufferance of the State he goes to the middle of the stream, and must have his shore-front to the middle ; and it is a matter of little consequence whether islands are formed, or whether there is an accretion on the shore, or whether the water remains as it w^as when he received his grant; he is en- titled to his front to the centre of the stream." With reference to the distinction here taken, we are aware that jurists have differed in opinion w-hether in this country, as in Eng- land, the existence of tide water should be the test of navigability, so far as riparian rights may be involved, the Ohio and many other fresh-water streams being practically navigable, subservient to com- merce, and subject to maritime jurisdiction, though above and un- affected by the tide. But whateA^er contrariety of authority there may be on that question, it may be regarded as settled in this State in favor of the common law rule since the decision of the case of Berry v. Snyder, £c., 3 Bush, 266. With a proper application of that rule in this case the solution of the question under consideration cannot be difficult. It does not appear that the general course and central thread of the river oppo- site to the ground in dispute cannot be ascertained under the judg- ment in these cases with sufficient certainty for practicable purposes ; and if it be true, as in effect adjudged by the lower court, that the several owners of the river-bank at which the accretion was formed were entitled to an extension of the original river-fronts of their lots across the accretion, upon lines drawn as nearly as practicable at right angles with the centre of the river, the only difficulty would seem to be in determining the course on which these lines should be drawn with reference to each other and the thread of the river at the terminus of each of the lines, which would be necessarily parallel or convergent or divergent, as the relative lengths and courses of the original shore-line and central line of the river might differ. CHAP. I.J MILLER V. HEPBURX 21 The principle of equitable apportionment contended for by the counsel for the appellants is manifestly right when applied in the division between conterminous i)roprietors of an alluvion on a lake or sea-shore, or even on the bank of a river below tide-water, where the titles of the riparian owners are limited by the water's edge, and the law indicates no particular course for the extension or enlargement of their boundaries over the alluvial soil; but it is clearly inconsistent wdth the right of each owner of the bank of a river above tide-water to carry his title to the middle of the stream. The conclusion of the Court of Common Pleas on this point is not, in our opinion, inconsistent with the adjudged cases cited as authority against it w^hen properly applied, and it is moreover sub- stantially sustained by several decisions, among which may be cited the cases of Knight v. Wilder, 2 Cush. 199; Larrlmer v. Benson, 8 Mich. 18; and Rice v. Ruddeman, 10 Mich. 125. But it is further contended for the appellants that Avhatever may have been the legal right of themselves and those under whom they claimed to prolong their western line over the accretion as it w'as formed, it \ras so prolonged according to its original course, and recognized and established as the true line by the adjacent owners and their tenants. It appears that Jesse Vansicles, under whom the appellants claim as remote vendees, took possession of the large lot, No. 5, in 1849 or 1850, and that he did at one time undertake to extend the line as it is now claimed by the appellants; but his right to do so was disputed by the tenants of the appellees, and the attempt was not persisted in, although then and afterward a path or roadway extended to the river near where the line would be as claimed by the appellants. We are not satisfied from the evidence that the supposed contin- uation of the line was at any time sanctioned or agreed to by the appellees; but if it was, the agreement, whether express or implied, existing in parol only, did not divest the plaintiffs of their title. Robinson, &c. v. Conn. 2 Bibb, 124; Smith v. Dudley, 1 Littell, 66. As to the question of limitation, it is sufficient to say that it does not appear that the appellants were in the adverse possession of the ground in controversy at an earlier period than 1860 or 1861, and the action w^as not therefore barred. Wherefore, no error being perceived in the judgments, the same are affirmed.^ 1 See Calkins v. Hart, 219 N. Y. 145. Compare Smith v. JoJinson, 71 F. R. f)47; Stark v. Meriwether, 98 Kan. 10, 99 Kan. 650; NeiHon v. Eddy, 23 Vt. 319; Hubbard v. Manwell, 60 Vt. 235. 22 COOK V. m'^clure [chap. I COOK V. McCLUKE 58 N. Y. 437. 1874. Appeal from a judgment of the General Term of the Supreme Court in the Fourth Judicial Department, affirming a judgment in favor of defendant entered upon a verdict. Reported below, 2 K Y. S. C. (T. & C.) 434. This was an action of ejectment, brought to recover a small strip of land in Springville, Cattaraugus County, in the possession of the defendant, and upon which he had erected and maintained for some years a building, used for a storehouse. The claim of the plaintiff was that the strip of land was formerly covered with the water of a n^illpond, caused by the backflow of the water of Spring Creek, by reason of the erection and mainte- nance of a milldam across said creek, erected and maintained for many years for the supply of a mill owned and operated by the plaintiff and those under whom she claimed. The plaintiff and defendant claimed under the same title and the same grantors. The premises owned by plaintiff were first deeded; the deed included the land covered by the pond. The boundary lines between the lands deeded and those subsequently conveyed and owned by defend- ant are given in the deed as follows : " Thence southerly along said line (i. e., of land owned by the late Jarvis Bloomfield) to the corner- store standing in the southwest corner of said Bloomfield's land; thence south fifty-five degrees east to a stake near the high-water mark of the pond of the grist-mill; thence northeasterly along the high-water mark of said pond to the upper end of said pond, or to the north line of said lot number nine." Evidence was given, on the part of plaintiif, tending to show that the place where the defendant's store stood was covered at times, before he took title, by the waters of said pond, and that the ground was made in whole or in part by accretions of land and the subsidence of the Avaters of the pond, or the changes of the same, subsequent to the conveyance under which plaintiff claimed. The court, among other things, charged the jury : " That where a man's boundary line is a stream of water, if natural causes added to the soil by accretion, the soil thus added belonged to the owner of the bank or shore." Also, " that if such natural accretion took place when the boundary line was a pond, such accretion belonged to the adjacent owner where the accretion was deposited." To which the counsel for the plaintiff duly excepted. Grover, J. The only questions in this case were upon the two exceptions taken by the appellant to the charge to the jury. The judge charged, that where a man's line is a stream of water, if natural causes added to the soil by accretion, the soil thus added belonged to the owner of the bank or shore. To this the appellant CHAP. I J COOK V. M^CLURE 23 excepted. He further charged, that if such natural accretion took place where the boundary line was a pond, such accretion belonged to the adjacent owner when the accretion was deposited. The first proposition charged it is scarcely necessary to discuss, as the question involved in the case is more distinctly presented by the exceptions taken to the second. That question is, whether, under the facts of this case, the boundary in the deed under which the plaintiff, by several mesne conveyances, makes title, establishes a fixed and permanent line, or whether such line would follow a change in the water of the pond if produced by natural causes. The proof shows that at the time of the conveyance the grantor owned all the lands claimed by both parties. He conveyed the land claimed by the plaintiff, describing the disputed boundary as follows: Commencing (for this purpose) at a store lately owned by Jarvis Bloomfield, standing in the southwest corner of his lot, thence south fifty-five degrees east one chain and seventy-nine links to a stake near the high-water mark of the pond of the grist mill, thence northeasterly along the high-water mark of said pond to the upper end of said pond, or to the nortli line of said lot number nine. The question is as to this last boundary. The pond was an artificial one, raised by a dam across a running stream, for the purpose of creating power to propel the machinery of mills then owned by the grantor and included in the deed. The proposition where the boundary is upon a stream is correct, with the qualifi- cation that such accretion of alluvium, to inure to the riparian owner, must be imperceptible ; that the amount added in any moment could not be perceived. Hahey v. McCormick, 18 iN". Y. 147; 3 Kent, 428; Angell on Watercourses, § 53 and note. I do not think that there is any distinction in this respect between a boundary upon a running stream of water and a pond. Failing to make this qualification may not have prejudiced the appellant. If his counsel thought it would, he should have called attention to it, and requested a modification of the charge in this respect. But this does not reach the real question in the case; that is, whether the boundary was not made by the deed fixed and perma- nent, so that if the water from natural causes encroached, upon the land beyond high-water mark, as it was at the time of the giving the deed covering a portion of such land, the land so covered would not have remained the property of the grantor; and whether, on the other hand, if the water of the pond, from such causes, had receded so as to leave dry land below the then high-water mark, such land would not be tlir ])roperty of the grantee, or whether the line would continue to be the high-water mark of the pond as changed by such causes. It maj be remarked that tlie reason given in the cases where tlie boundary is upon the l);niks of the stream that it should go to low-water mark, and in some castas for giving the allu- vium insensibly formed to tlie rii)arian owner, — that the party should 24 COOK V. M'CLURE [CHAP. I not be cut off from, but continue to have access to the water for . use, — has no application to the case. The line was fixed at the high-water mark of the pond. Hence the grantor reserved to himself no interest whatever in the water or the land covered by it. He could not, without trespassing, reach the water at all, only when at high-water mark, and then he had no right to or in it for any pur- pose. The land between high and low water mark clearly passed to the grantee under the deed. Again, the grantor was under no obligation to keep up the dam or pond. He could cut down the dam. and use the land for any purpose he chose. Should the pond from any cause fill up along the disputed boundary, he had the right of clearing it out up to the line. Had the bank been partially washed away by the action of the water, the grantor had the right of filling in to the line. But these rights would not exist, should the line be held to continue at high-water mark, as that might from time to time be changed by the action of the water from natural causes. This right, claimed by the defendant, of acquiring title by accretion, if it existed, could be terminated by the plaintiff by a removal of the dam. I think the language of the deed indicates a clear intention to establish a fixed and permanent line, and not one changeable by the changes in the high-water mark of the water in the pond. It follows that the charge, when applied to the facts in this case, was erroneous. The boundary between the parties was the high-water mark at the time of the deed *to Bradley, and the jury should have been so charged. Whether alluvium had been formed had nothing to do with the case. The evidence was such that the jury may have found that the land in dispute was allu- vium, formed by the natural action of the water below this line; and if so, under the charge they would have found it was the defendant's; while if the fact was so, the title was in the plaintiff. The judgment appealed from must be reversed, and a new trial ordered, costs to abide event. All concur, except Church, C. J., not voting. Judgment reversed.^ 1 See Eddy v. St. Mars, 53 Vt. 462. Boundaries on navigable lakes or ponds. Brundage v. Knox, 279 111. 450; State v. Gilmanton, 9 N. H. 461; Austin v. Rutland Rd. Co., 45 Vt. 215. Boundaries on non-navigable lakes or ponds. Hardin v. Jordan, 140 U. S. 371; Lamprey v. Minnesota, 52 Minn. 181; Tucker v. Mortenson, 126 Minn. 214; Brignall v. Hannah, 34 N. D. 174; Conneaut Lake Ice Co. v. Quiglcy, 225 Pa. 605. In Boorman v. Su7inachs, 42 Wis. 233, it was said that an abutter on a natural pond, the soil of which is in the state or the United States, acquires title to land left by imperceptible reliction. Fuller v. Shedd, 161 111. 462; French Live Stock Co. v. Sprii^gcr, 35 Or. 312% accord. In Hodges v. Williams, 95 k. C. 331, it wa,s held that if the bed of a natural pond had been granted by the state, an abutter on the pond would not acquire title to land left by gradual reliction; and it was said that the same would be true in the case of imnavigable streams. CHAPTER II LAPSE OF TIME SECTIOI^ I STATUTES OF LIMITATION A. Statutes ENGLAND 3 Edw. I, c. 39 (1275). — And forasmuch as it is long time passed since the writs undernamed were limited; it is provided, That in conveying a descent in a writ of right, none shall presume to declare of the seisin of his ancestor further, or heyond the time of King Richard, uncle to King Henry, father to the King that now is; and that a writ of Novel disseisin, of Partition, which is called Nuper ohiit, have their limitation since the first voyage of King Henry, father to the King that now is, into Gascoin. And that writs of Mortdancestor, of Cosinage, of Aiel, of Entry, and of Nativis, have their limitation from the coronation clause of the same King Henry, and not before. Nevertheless all writs purchased now by themselves, or to be purchased between this and the feast of St. John, for one year complete, shall be pleaded from as long time, as heretofore may have been used to be pleaded. 21 Jac. I, c. 16, §§ 1, 2 (1623). — For quieting of men's estates, and avoiding of suits, be it enacted by the King's most excellent majesty, the lords spiritual and temporal, and commons, in this present Parliament assembled, That all writs of formedon in de- scender, formedon in remainder, and formedon in reverter, at any time hereafter to be sued or bought, of or for any manors, lands, tenements or hereditaments, whereunto any person or persons now hath or have any title, or cause to have or pursue any such writ, shall be sued and taken within twenty years next after the end of this present session of Parliament : and after the said twenty years expired, no such person or persons, or any of their heirs, shall have or maintain any such writ, of or for any of the said manors, lands, tenements or hereditaments; (2) and that all writs of formedon in descender, formedon in remainder and formedon in reverter, of any manors, lands, tenements, or other hereditaments Avhatsoever, at any time hereafter to be sued or brought by occasion or means of any title or cause hereafter happening, shall be sued and taken within twenty years next after the title and cause of action first 25 26 STATUTES OF LIMITATION [CHAP. II descended or fallen, and at no time after the said twenty years ;^ (3) and that no person or persons that now hath any right or title of entry into any manors, lands, tenements or hereditaments now held from him or them, shall thereinto enter, but within twenty years next after the end of this present session of Parliament, or within twenty years next after any other title of entry accrued; (4) and that no person or persons shall at any time hereafter make any entry into any lands, tenements or hereditaments, but within twenty years next after his or their right or title which shall here- after first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly ex- cluded and disabled from such entry after to be made; any former law or Statute to the contrary notwithstanding. II. Provided nevertheless, That if any person or persons, that is or shall be entitled to such writ or writs, or that hath or shall have such right or title of entry, be or shall be at the time of the said right or title first descended, accrued, come or fallen, within the age of one and twenty years, feme covert, non compos m.entis, im- prisoned or beyond the seas, that then such person or persons, and his or their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action, or make his entry, as he might have done before this Act; (2) so as such person and persons, or his or their heir and heirs, shall within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue forth the same, and at no time after the said ten years.^ ILLINOIS Annot. Stats. (1913) Chap. 83 § 1. No person shall commence an action for the recovery of lands, nor make an entry thereon, unless within twenty years after the right to bring such action or make such entry first accrued, or within twenty years after he or those from, by, or under whom he claims, have been seized or possessed of the premises, except as hereinafter provided. § 2. If such right or title first accrued to an ancestor or prede- cessor of the person who brings the action or makes the entry, or to any person from, by, or under whom he claims, the twenty years shall be computed from the time when the right or title so first accrued. § ?i.^ The right to make an entrv or bring an action to recover 1 See Dow v. Warnn. 6 Mass. 328; Tohon v. Kaye, 3 Bred. & B. 217. 2 See Stat. 3 & 4 Will. 4 c. 27; Stat. 37 & 38 Vict. c. 57; 34 Law Quar. Rev. 253; Ticlihornc v. Weir. 67 L. T. x. s. 735; O'Cniinor v. Foley, [1905] 1 I. R. 1. ^ Compare Hawaii. Rev. Laws (1915), § 26.53; Michigan, Comp. Laws (1915), § 12313; Massachusetts, Gen. Laws (1920), c. 260, § 23. SECT. l] STATUTES OF LIMITATION 27 land sliull be deoined to luive first accrued at flu- times respectively hereinafter mentioned, that is to say: First — When any person is disseized, his riglit of i-iitry or of action shall be deemed to have accrued at the time of such disseizin. Second — When he claims as heir or devisee of one who died seized, his right shall be deemed to have accrued at the time of such death, unless there is a tenancy by the curtesy or other estate intervening after the death of such ancestor or devisor; in which case his right shall be deemed to accrue when such intermediate estate ex- pires, or when it would have expired by its own limitations. Third — When there is such an intermediate estate, and in all other cases when the party claims by force of any remainder or reversion, his right, so far as it is affected by the limitation herein prescribed, shall be deemed to accrue wdien the intermediate or precedent estate would have expired by its own limitation, notwith- standing any forfeiture thereof for which he might have entered at an earlier time. Fourth — The preceding clause shall not prevent a person from entering when entitled to do so by reason of any forfeiture or breach of condition; but if he claims under such a title, his right shall be deemed to have accrued wlicn the forfeiture was incurred or the condition was broken. Fifth — In all cases not otherwise specially provided for, the right shall be deemed to have accrued when the claimant, or the person under whom he claims, first became entitled to the possession of the premises under the title upon which the entry or the action is founded. §4.^ Actions brought for the recovery of any land, tenements or hereditaments of which any person may be possessed by actual resi- dence thereon for seven successive years, having a connected title in law or equity, deductible of record, from this State or the United States, or from any public officer or other person authorized by the laws of this State to sell such land for the non-payment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution, or under any order, judgment or decree of any court ot record, shall be brought within seven years next after possession being taken, as aforesaid ; but when the possessor shall acquire such title after taking such possession, the limitation shall begin to run from the time of acquiring title. § 5. The heirs, devisees and assigns of the person having such title and possession, sliall luive the same benefit of the ])receding section as the person from wliom the possession is derived. § 6.- Every person in the actual possession (^f hind or tenements, 1 See Arkansas, Dig. Stats. (1921). §6947; K.Mitiuky. St;fts. (19ir)). §2513; Washington. Code. (1919), § T.WCi. - See Arizona. Rev. Stats. (1913), § 697; South Dakota Comp. Laws (1915), Code Civ. Proc. §.54; Washington. Code (1919). §7.538. 28 STATUTES OF LIMITATION [CHAP. II under claim and color of title, made in good faith, and who shall, for stn-en successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenem(nits, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession, and continue to pay the taxes as aforesaid, so as to complete the possession and pay- ment of taxes for the term aforesaid, shall be entitled to the benefit of this section. § 7.^ Whenever a person having color of title, made in good faith to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of saiJ vacant and unoccupied land, to the extent and according to the purport of his or her paper title. All persons holding under such tax-payer, by purchase, devise or descent, before said seven years shall have expired, and who shall continue to pay the taxes, as aforesaid, so as to complete the pay- ment of taxes for the term aforesaid, shall be entitled to the benefit of this section: Provided, however, if any person, having a better paper title to said vacant and unoccupied land, shall, during the said term of seven years, pay the taxes assessed on said lands for any one or more years of the said term of seven years, then and in that case such tax-payer, his heirs and assigns, shall not be entitled to the benefit of this section. § 8.^ The two preceding sections shall not extend to lands or tenements owned by the United States or of this State, nor to school and seminary lands, nor to lands held for the use of religious societies, nor to lands held for any public purpose. Nor shall they extend to lands or tenements when there shall be an adverse title to such lands or tenements, and the holder of such adverse title is under the age of twenty-one years, insane, imprisoned, feme covert, out of the limits of the United States, and in the employment of the United States or of this State: Provided, such person shall commence an action to recover such lands or tenements so possessed, as aforesaid, within three years after the several disabilities herein enumerated shall cease to exist, and shall prosecute such action to judgment, or in case of vacant and unoccupied land, shall within the time last aforesaid, pay to the person or persons who have paid the same, all the taxes, with interest thereon, at the rate of twelve per cent per annum, that have been paid on said vacant and unimproved land. § 9. If, at any time when such right of entry or of action upon or 1 See Arkansas, Dig. (1921). §6943; South Dakota. Comp. Laws (1915), Code Civ. Proc, §55; Washington, Code (1919). §7539. 2 See South Dakota, Comp. Laws (1913), Code Civ. Proc, § 56; Wash- mgton. Code (1919), §7540. SECT, ij STATUTES OF LIMITATION 29 for land first accrues, the person entitled to such entry or action is within the age of twenty-one years, or if a female, of the age of eighteen years, or insane, imprisoned or absent from the United States in the service of the United States or of this State, such person or any one claiming from, by or under him or her, may make the entry or bring the action at any time within two years after such disability is removed, notwithstanding the time before limited in that behalf has expired. § 10. If the person first entitled to make entry or bring such action, dies during the continuance of any of the disabilities mentioned in the preceding section, and no determination or judgment has been had of or upon the title, right or action which accrued to him, the entry may be made or the action brought by his heirs or any person claiming from, by or under him at any time wdthin two years after his death, notwithstanding the time before limited in that behalf has expired. § 11. No person shall commence an action or make a sale to fore- close any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrues.^ 1 See lUinois, Laws (1915), p. 495. The statutory provisions in Colorado are similar to those in Illinois. Colorado, Annot. Stats. (1915), §§4650-4659. In the following jurisdictions, if the adverse possessor holds under color of title, a shorter period is available for him. In some of them, good faith, or payment of taxes, or both, are also necessary to securing the benefit of the shorter term. Alaska, Annot. Code (1907), Code Civ. Proc, §1042; Arizona, Rev. Stats. (1913), §§695, 697; Colorado, Annot. Stats. (1915), §4655; Georgia, Annot Code (1914), §4169; Illinois. Annot. Stats. (1913), c. 83, § 6 ante, p. 27, and states in note 2 p. 27; North Carolina, Stats. (1919), §428; Texas, Civ. Stats. (1913), §§5672, 5674. Compare North Dakota, Comp. Laws (1913), § 5471; Uhanrr v. Uhanrc, 174 N. W. (N. D.) 880. Simple statutory provisions providing for the barring of entry or action or both for the recovery of real estate after a certain period, and for dis- abilities are to be found in the following jurisdictions: Arkansas. Dig. Stats. (1921). §6942 (seven years); Connecticut, Revision (1918), §6152 (fifteen); Delaware, Rev. Code (1915), §§4662-4665 (twenty); District of Columbia, Annot. Code (1919), §1265 (fifteen); Hawaii, Rev. Laws (1915), §§2651- 2658 (ten); Indiana, Annot. Stats. (1914), §§ 295, 298 (twenty); Iowa, Code (1913), §§3447, 3453 (ten); Kansas, Gen. Stats. (1915). §§6905. 6906 (fif- teen); Kentucky, Stats. (1915), §§2505-2508 (fifteen); Maine, Rev. Stats. (1916), c. 110 (twenty); Massachu.-^ett<, Gen. Laws (1920), c. 260 (twenty); Michigan, Comp. Laws (1915); §§12311-12317 (fifteen); Minnesota. Gen. Stats. (1913), §§7696-7710 (fifteen); Missouri, Rev. Stats. (1919), §§1305- 1314 (ten); Nebraska, Rev. Stats. (1913). §§ 7564. 7575 (ten); New Hamp- shire, Pub. Stats. (1901). c. 217 (twenty); New Mexico. Stats. (1915). § 3365 (ten); Ohio. Annot. Gen. Code (1912), § 11219 (twenty-one); Oklahoma, Rev. Laws (1910), §§46.5.5-46.56 (fifteen); Oregon. Laws (1920). §§4. 17 (ten); Pennsylvania, Purdon's Digest (1905), pp. 2268-2275 (twenty-one); Vermont, Pub. Stat< (1906), c. 78 (fifteen): Virginia. Annot. Code (1004), §§5805- 5808 (fifteen); West Virginia, Annot. Code (1913), §§4414-4417 (ten); 30 STATUTES Ol' LIMITATION [CHAP. II NEW YORK 1920, Chap. 925, Art. 2. § 34. An action ^ to recover real property or the possession thereof cannot be maintained by a party other than the people,^ unless the plaintiff, his ancestor, predecessor or grantor, was seized or pos- sessed of the premises in question within twenty years before the commencement of the action. A defense or counterclaim founded upon the title to real property, or to rents or services out of the same, is not effectual unless the person making it, or under whose title it is made, or his ancestor, predecessor or grantor, was seized or possessed of the premises in question within twenty years before the committing of the act with respect to which it is made. § 35. In an action to recover real property or the possession there- of, the person who established a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another jierson is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for twenty years before the commencement of the action. § 36. An entry upon real property is not sufficient or valid as a claim unless an action is commenced thereupon within one year after the making thereof and within twenty years after the time when the right to make it descended or accrued. § 37. Where the oeeiipant or those under whom he claims entered into the possession of the premises under claim of title, exclusive of any other right, founding the claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and there has been a continued occupation and possession of the premises included in the instrument, decree or judgment, or of some part thereof, for twenty years, under Wyoming, Comp. Stats. (1910), §§4295, 4296 (ten). And see, Alabama, Code (1907), §4834 (ten); Alaska, Code (1907) Code Civ. Proc, §§4, 1042 (ten); Tennessee, Annot. Code (1917), §§4448-4465 (seven). In some states the statute expressly vests title in the adverse possessor after the period of limitation. Georgia, Annot. Code (1914), § 4168 (twenty); Mississippi, Annot. Code (1917). § 2458 (ten); North Carolina, Stats. (1919), § 430 (twentv); Rhode Island, Gen. Laws (1909), c. 256, § 2 (ten); Texas, Civ. Stats. (i913), §5679 (three, five. ten). See Alaska, Code (1907), Code Civ. Proc, § 1042 (seven); New Jersey, Comp. Stats. (1913), vol. 3, p. 3172 (sixty, thirty); North Dakota, Comp. Laws (1913). §5471 (ten) [see §7362 (twenty)]; Tennessee. Annot. Code (1917), § 4456 (seven). Compare Tich- bome V. Weir, 67 L. T. n. s. 735; OTnnncr v. Fohy, [1905] 1. I. R. 1. 1 See Humbert v. Trinity Church, 24 Wend. 587. 2 Sees. 31-33 deal with actions by the people or by a patentee or grantee of the people. SECT. I J STATUTES OF LIMITATION 31 the same claim, the premises so included are deemed to have been held adversely; excejjt that wliere they consist of a tract divided into lots the possession of one lot is not deemed a possession of any other lot. § 38. For the purpose of constituting an adverse possession, by a person claiming a title founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases : 1. Where it has been usually cultivated or imi)roved. 2. Where it has been protected by a substantial inclosure. 3. Where, although not inclosed, it has been used for the supjdy of fuel or of fencing timber, either for the purposes of husbandry or for the ordinary use of the occupant. Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared or not inclosed, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length of time as the part improved and cultivated. § 39. Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely. § 40. For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others: 1. Where it has been protected by a substantial enclosure. 2. Where it has been usually cultivated or improved.^ § 41. Where the relation of landlord and tenant has existed be- tween any persons the possession of the tenant is deemed the pos- session of the landlord until the expiration of twenty years after the termination of the tenancy ; or, Avhere there has been no written lease, until the expiration of twenty years after the last payment of rent; notwithstanding that the tenant has acquired another title or has claimed to hold adversely to his landlord. But this presumption shall not be made after the periods prescribed in this section. § 42. The right of a person to the possession of real property is not impaired or aifected by a descent being cast in consequence of the death of a person in possession of the property. § 43. If a person who might maintain an action to recover real property or the possession thereof, or make an entry, or interpose a defense or counterclaim founded on the title to real ])ro])erty or to rents or services out of the same, is when his title first descends or his cause of action or i-iglit of entry first accrues, either: T- See CJnrk v. Corhrnn. S.') So. fFl;i.) 250. 32 SCHOOL DISTRICT NO. 4 V. BENSON ET AL. [CHAP. II J. Within tlic age of twcnty-oiic yt'ar,s; or 2. J iisaiio ; or 3. Iniprisoiio(l on a criininal charge, or in execution upon con- viction of a criminal offense, for a term less than life; the time of such a disability is not a part of the time limited in this article for commencing the action or making the entry or interposing the de- fense or counterclaim ; except that the time so limited cannot be extended more than ten years after the disability ceases or after the death of the person so disabled.^ B. Operation of the Statute STOKES V. BEERY 2 Salk. 421. 1699. If A. has had possession of lands for twenty years without inter- ruption, and then B. gets possession, upon which A. is put to his ejectment, though A. is plaintiff, yet the possession of twenty years shall be a good title in him, as if he had still been in possession, Kuled i)er Holt, C. J. The same point was ruled by Holt, C. J., at Lent Assizes for Bucks, 12 W. 3, because a possession for twenty years is like a descent, which tolls entry, and gives a right of pos- session, which is sufficient to maintain an ejectment.^ SCHOOL DISTRICT NO. 4 IN WINTHROP v. BENSON ET ALS. 31 Me. 381. 1850. Writ of Entry. There was evidence tending to prove that tte land formerly belonged to the ancestor of the defendants; and that the plaintiffs had occupied a portion, or the whole of it, for more than forty years, for a school-house, woodshed, and woodyard. 1 The following states have modelled their acts on the New York statute: California, Code Civ. Proc. (1915), §§318-328 (five years); Florida Comp. Laws (1914), §§1718-1724 (seven); Idaho, Comp. Stats. (1919), §§ 6596-6606 (five); Montana, Rev. Codes (1907), §§6432-6442 (ten); Nevada Rev. Laws (1912), §§4952-4956 (five); North Dakota, Comp. Laws (1913), §§ 7362-7372 (twenty), see § 5471 (ten); South Dakota, Comp. Laws (1913), Code Civ. Proc, §§ 43-56 (twenty); Utah. Comp. Laws (1917), §§ 6449-6463 (seven); Wisconsin, Stats. (1915), §§4207-4218 (twenty). 2 See Armstrong v. Ristcau, 5 Md. 256. If A is in possession and is ousted by B, B cannot show title in a third person as a defence to ejectment. Christy v. Scott, 14 How. (U. S.) 282; Bradshaw v. Ashley, 14 App. Cas. (D. C.) 485; Casey v. Kimviel, 181 III. 154; Adams v. Tiernan, 5 Dana (Ky.) 394; Cook v. Bertram, 86 Mich. 356; Jackson d. Duncan v. Harder, 4 Johns. (N. Y) 202; Asher v. Whitlock. L. R. 1 Q. B. 1; Perry v. Clusold, [19071 A. C. 73; Waata v. Grice, 2 N. Z. L. R. 95, 117; 3 Harv. L. Rev. 323-326. SECT. l] SCHOOL DISTRICT NO. 4 V. BENSON ET AL. 33 It was proved that a avoocUmi st'liool-housc was orcctcd there hy the plaintiffs in 1802; it was taken down and a hriek school-house was built in 1818 on the lot, near the site of the woodcni one. A wood- shed was placed near the brick school-house in 1824. lu 1847 one Samuel Wood was the school agent. He -was called by the defend- ants as a witness, and testified that he procured the woodshed to be removed in the spring of 1847 from the northwesterly end of the school-house to the back side of the school-house at the other end; that he found the building must be removed; that it had been on another man's land on sufferance; that the defendants asserted a title, and showed it to him, and required the building to be removed; that he became satisfied the district had no title to the land, and that he removed the building for that reason. That the expense of removing it was $25, which was paid by the town, out of the money assigned to that district. The plaintiffs objected to said Wood's testimony, as not legally admissible, but the objection was overruled. It appeared, from the records of the district, that in June, 1847, soon after the re- moval of the shed, they had a meeting and took action for sustaining whatever claim they had to the land. The defendants in their argument contended that if, in 1847, the agent of the school district, at the request of the defendants, re- moved the woodhouse to its present location, intending to relinquish and give up the land, and the district had subsequently ratified his acts by their conduct or otherwise, of which they were the judges ; then such abandonment, notwithstanding the district might before that time have had an open, adverse, exclusive and notorious pos- session of the land, or some part of it, for more than twenty years, would operate an abandonment of their possession and a surrender of their claim to the former owners thereof, and the plaintiffs could not recover in this suit. The court, in opposition to the argument of the plaintiffs' counsel, gave such instructions. The verdict was for the defendants, and the plaintiffs excepted. Wells, J. The jury were instructed that if, in 1847, the agent of the school district, at the request of the defendants, removed said woodhouse where it now is, intending to relinquish and give up the land, and the district had subsequently ratified his acts hy their conduct or otherwise, of which they were the judges, then such abandonment, notwithstanding the district might before that time have had an open, adverse, exclusive and notorious possessioji of the land, or some part of it, for more than twenty years, would operate an abandonment of their possession, and a surrender of their claim to the former owners thereof, and the plaintiffs could not recover the said land in this suit. It is true, that a mere possession of land of itself does not nec- essarily imply a claim of right. The tenant may hold in subjection to the lawful owner, not intending to deny his right or to assert 34 SCHOOL DISTRICT NO. 4 V. BENSON ET AL. [CHAP. II ;i (loniiuion over the fee. But the terms open, notorious, adverse and exclusive, when applied to the mode in which one holds lands, must be understood as indicating a claim of right. They constitute an appropriate defiuition of a disseisin, and the acts which they describe will have that effect if not controlled or explained by other testimony. Little v. Lihhey, 2 Greenl. 242; The Pr-oprietors of Kennebec Purchase v. John Springer, 4 Mass. 416. An adverse possession entirely excludes the idea of a holding by consent. If the plaintiffs have held the premises by a continued disseisin for twenty years, the right of entry by the defendants is taken away, and any action by them to recover the same is barred by limitation. Stat. c. 147, § 1. A legal title is equally valid when once acquired, whether it be by a disseisin or by deed; it vests the fee-simple, although the modes of proof when adduced to establish it may differ. Nor is a judgment at law necessary to perfect a title by disseisin any more than one by deed. In either case, when the title is in controversy, it is to be shown by legal proof; and a continued disseisin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by the exhibition of them in evidence. An open, notorious, exclusive, and adverse possession for twenty years wovild operate to convey a complete title to the plaintiffs, as much so as any w-ritten conveyance. And such title is not only an interest in the land, but it is one of the highest character, the ab- solute dominion over it; and the appropriate mode of conveying it is by deed. 1^0 doubt a disseisor may abandon the land, or surrender his possession by parol, to the disseisee, at any time before his disseisin has ripened into a title, and thus put an entire end to his claim. His declarations are admissible in evidence to show the character of his seisin, whether he holds adversely or in subordination to the legal title. But the title, obtained by a disseisin so long continued as to take away the right of entry, and bar an action for the land by limitation, cannot be conveyed by a parol abandonment or re- linquishment, it must be transferred by deed. One having such title may go out of possession, declaring he abandons it to the former owner, and intending never again to make any claim to the land, and so may the person who holds an undisputed title by deed; but the law does not preclude them from reclaiming what they have abandoned in a manner not legally binding upon them. A parol conveyance of lands creates nothing more than an estate or lease at will. Stat. c. 91, § 30. The excepfio7is are sustained and a new trial granted.^ 1 See Font v. Williams, 118 Miss. 428. On the nature of the adverse possessor's title, see Toltec Ranch Co. v. Cook, 191 U. S. 532, 542; Price v. Lijon, 14 Conn. 279, SECT. I J HUGHES V. GRAVES 35 HUGHES V. GRAVES. 39 Vt. 359. 1867. This cause was an act of trespass quare clausum f regit, with counts in trespass on the case joined agreeably to the Statute. The action, by the agreement of the parties, was referred, to be decided according to law, and the defendant filed exceptions to the report of the referees. On the hearing upon the said report and exceptions at the March Term, 1866, Kellogg, J., presiding, the court, pro forma, decided that the plaintiff was entitled to recover of the defendant the sum of ten dollars for his damages, as stated in the report, and rendered judgment in favor of the plaintiff on the report accordingly. To this decision and judgment the defendant excepted. The referees reported as follows : " The plaintiff and defendant are severally the owners and occupiers of adjacent lots of land in the village of Fairhaven, both lots being originally parcels of an entire lot and each party deriving title to his lot from a common source. The west line of the plaintiff's lot, as shown by his title- deeds, runs from the northwest corner of his dwelling-house, south- erly to the northwest corner of the Whipple lot. This line formed the eastern boundary of an ancient highway, discontinued more than fifty years since, running over the lot of the defendant. Joshua Quenton, an intermediate grantor of the plaintiff, obtained his title to the lot in 1806, and he and his heirs owned and occupied it until May, 1847. During this period the Quentons enclosed with a fence a strip of land about ten feet wide at the north end, which extended southerly and adjoining the plaintiff's west line from the said northwest corner of the plaintiff's dwelling-house, to and beyond the south line of the defendant's lot taken from said ancient high- way, making a portion of their dooryard, and continued to occupy peaceably and adversely claiming it as their own for more than fifteen years. In the fall of 1847 an intermediate grantor of the defendant claims this strip of land, sawed the fence in two where the south line of the defendant's lot would strike it. But the fence after two or three months was rebuilt by the plaintiff's grantor, and the occupation in them continued till March, 1861, as the fence Avas 290; Field v. Pccples, 180 111. 376, 383; LaSallc Cnal Co. v. Scinl- tary Dist., 260 111. 423. 429; Cndwdadcr v. Price, 111 Md. 310. 319, 320; Mortgage Co. v. Butler. 99 Mi8s. .56. 70; Armijo v. Armijo. 4 N. M. 133; Craffins v. Tottenham, 1 W. Si S. (Pa.) 488; .Jordan v. Chamber.'^, 226 Pa. 573; Coal Creek Co. v. Eaf^t Tennessee Co., 105 Tenn. 563. .574; Earnest v. Little River Co.. 109 Tenn. 427; Doe v. Sumner. 14 M. & W. 39; Srott v. Nixon, 3 Dr. : Tichhornr V. Wrir. 67 L. T. x. s. 73.5: In re Jollv. FlOOOl 1 Ch. 292. flOOOl 2 Ch. 616; Ni' unfler this tortious feoffment become a disseisor and therefore a good tenant to the praecipe f Lord Mansfield was of opinion that such entr>' was a disseisin only at the election of the persons whose estates would be preju- diced by the recovery. This was, in effect, to hold that acts which, under the older authorities, had amounted to an actual disseisin did so no longer. See Butler's Note to Co. Lit. 330 b, and 4 Kent Com. 483-490. By 8 & 9 Vict. c. 106 (1845), it was provided that a feoffment made after a date therein specified should not have any tortious operation." 3 Gray. Cas. on Prop., 2(1 ed. p. 34. 42 BLUNDEN V. BAUGH [CHAP. II years made, and the lessee's entering and paying the rent unto him, and he accepting thereof, he is in as lessee, and the lessor is the disseisor, and hath the reversion expectant upon this lease; and this lease betwixt them is an interest derived out of the inheritance gained by this disseisin : for if a lessee for years makes a feoffment, although it be a disseisin to the lessor, yet it is a good feoffment betwixt them de facto, though not de jure, and the feoffee is in the per; as 4 Edw. 2, Brev. 403 ; 19 Edw. 2, Brev. 770; 15 Hen. 3, Brev. 878; F. N. B. 201; 8 Hen. 7. 6, per fineux temp. Edw. 1, Counterplee de Voucher, 126; and Co. Lit. 367 a. And warranty may be annexed to such an estate, upon which he may vouch, as 50 Edw. 3, 12. And if such lessee for years, or at will, makes a gift in tail, or a lease for life, that creates a good lease or a good gift in tail amongst themselves and all others, besides the first lessor; and as to him they are both disseisors, as it appears by the books 14 Edw. 4, 6; 18 Edw. 3, Issue, 36; 7 Edw. 3, Issue, 7; 14 Edw. 3, Feoffments et Fayts, 67. So it is where a lessee at will makes a lease for years, especially by indenture, it is a good lease between them, and debt lies for the rent; and the lessee shall not avoid it but by an ouster by the first lessor, as 22 Hen. 7, 26, is. And Jones cited Spark v. Spark, Cro. Eliz. 676, where lessee at will made a lease for years, and he, being ousted by a stranger, brought an ejectment and recovered; and betwixt Streat and Virrall, ut supra. And so it was resolved in this court, 28 Eliz. that an ejectione flrmxe lies upon a lease made by a copyholder not warranted by custom against any stranger; and the Year-Book of 12 Edw. 4, 13, is directly to the point: so here, when lessee for years enters according to the lease and pays his rent, the freehold betwixt them shall be in William Lord Effingham, who made the lease, and not in Humphrys, who is only lessee ; and then the fine levied by the Earl of iS^ottingham and his son conveys well the freehold, and the uses are well raised upon this fine, and the jointure well settled; and then during her life the Earl of Nottingham hath no title to make a lease: wherefore the judgment ought to be reversed; and so much the rather for the great mischief which would ensue, if one who hath a tenant at will, who makes a lease for a small time, and the first lessor, not knowing thereof, levies a fine for a jointure for his wife, or to perform his will, or to other uses, (Src. if he should be adjudged disseised, and as a disseisee to levy a fine which should tend to the benefit of the lessee for years, and be adjudged a disseisor against his intent or knowledge, as in this case is pretended, many should lose their inheritances. In many manors are divers tenants at will, where the father is tenant at will, and after him the son enters and occupies at the will of the lord, and is so reputed, and the lord allows them, and never accounted them as disseisors; if such tenants at will make under-leases for a year, or for half a year, if the lords of those manors levy fines of tliose manors, and this SECT. l] BLUNDEN V. BAUGH 43 should tend to the benefit of the under-lessees, who should be reputed to be disseisors without the intent of any of the parties, many lords should hereby be disinherited; whereupon they concluded, that Hum- phrys the lessee was neither disseisor nor tenant, but only William Lord Effingham, and he is the disseisor and tenant; and the fine levied by Charles Earl of Nottingham, and William Lord Effingham his son, is a good fine, and the uses well raised, whereby Elizabeth the wife of the said William Lord Effingham hath good title, and the defendant under her. Wherefore the judgment ought to be re- versed. But Richardson, Chief Justice, argued to t\\v contrary, and con- tinued his former opinion, that Humphrys is the desseisor, and was tenant of the freehold at the time of the fine levied : and then the fine by the Earl of Nottingham (being a disseisee, and his son William Lord Effingham adjutor to the dissesin) shall inure to bar the right of the Earl of JSTottingham, and for the benefit of the said Humphrys, according to the opinion in 2 Co. 56, BucMer's Case; and that he is a disseisor to the Earl of Nottingham, not at his pleasure, but de ne- cessario; for a disseisin is a tortious ousting of any one from his seisin : and here this taking of the lease by Humphrys from Lord Effingham tenant at will, and his entering by color of the said lease, is a disseisin. And here is an entry usurpando jus (illeiitnn without consent of the Earl of Nottingham: and as tenant at will may not grant his estate, as 27 Hen. 6, pi. 3, is, no more may he make an estate; and the Earl of Nottingham hath no election to say it is no disseisin. But he agreed to the case, where an infant makes a lease for years, reserving rent, and the lessee enters, the infant hath election to allow him to be his tenant, or to be a disseisor, which is most for his advantage : so where one enters and claims as guardian and occupies, the infant may allow him either disseisor or accomp- tant, which shall be for his best advantage. Secondly, he held, that Humphrys is the sole disseisor and tenant of the freehold; for he, by his entry, did the sole act which made the disseisin: for the lease for years is merely a void contract; and when one enters by color of a void conveyance, he is the disseisor, as in Crofts v. Iloivels, Plow. 530, where a guardian assigned dower to a feme who is not dowable, and she enters, by her entry she is a disseiseress, 24 Edw. 3, pi. 43. If one enters by color of a void extent, it is at the peril of him who enters and takes the ])rofits, to see by what right he enters. And he denied that the making of a lease for years, is either an express or implied command to enter or make a disseisin. And he denied that the making of a lease for years had gained the reversion to the lessor; but if lessee for year-?, or at will, makes a lease for life, or a gift in tail, he, by making livery, transfers the freehold, and gains to himself the inheritance, but by a nude and void contract lie cannot gain the reversion. Where- upon he concluded, that Humphrys is the disseisor and tenant, 44 BOND V. o'gARA [chap. II and tliat the fiue inures to the benefit of Humphrys, and not to the limitation of the uses in the indenture, because none of the parties had anything in the land at the time of the fine levied; aad that the judgment ought to be affirmed. But afterwards, for the reasons of us three, the judgment was re- versed. JSTote, Sir Robert Heath, Chief Justice of the Common Pleas, Crawley, Justice, Baroim Den ham, and Baron Trevor, agreed with this judgment in the King's Bench; and conceived, that it would be very mischievous if it should be adjudged otherwise. But Sir Humphry Davenport seemed to doubt whether the lessee for years ought not strictly to be taken for the disseisor and tenant.^ BOND V. O'GARA 177 Mass. 139. 1900. Writ of entry, to recover a tract of land situated in Leicester. Plea, general issue. Trial in the Superior Court, before Gashill, J., who allowed a bill of exceptions, in substance as follows. The demandant claimed title through a deed to him on the prem- ises by one Lanphear, dated March 11, 1899. Lanphear's title came from a deed dated January 5, 1899, also delivered on the land, to him, by Kate Hanlon and her children, being the children and heirs of her deceased husband, John Hanlon. The tenant claimed title through a lease from the heirs of one Olney, deceased, dated December 9, 1898. The paper title was shown to be in the heirs of Olney by a series of conveyances beginning with the deed of one Burr to Buchanan, June 4, 1863. The demandant claimed that John Hanlon or his widow, Kate Hanlon, or his heirs who signed the deed to Lanphear, had acquired a title to the premises by pos- session for twenty years. There was evidence tending to show that John Hanlon entered upon the premises about the year 1864, cut the wood and timber, and thereafter occupied the same for a garden and for pasturing his cow and for other purposes, the evidence tending to show that this occupation was exclusive and continuous. There was evidence tending to show that John Hanlon entered upon the premises either in pursuance of a verbal gift of the land to him by Samuel L. Hodges, or by a permission to occupy the same granted to him by Hodges, who became owner of the premises by a deed from Pat- 1 In Mayor and Commonaltv oj Norwich v. Johnson, 3 Lev. 35, the court said : " The Claim of the Tortfeasor cannot create a particular Estate, and so apportion his own Wrong:, but of Necessity he is a Disseisor in Fee; because there is no particular or other Estate in esse." SECT. l] BOND V. o'gARA 45 riek Hanover, dated October 30, 1865, and Hodges conveyed the same to one Gilbert and others on October 19, 1866. John Hanlon died in 1873, and thereupon his widow continued to occupy the premises in the way in which her husband had done, and in the way in which she occupied the adjoining farm, the title to which was in John Hanlon at the time of his death. Some of her children, the heirs of John Hanlon, lived with her and worked on the prem- ises in question. The evidence tended to show that this occupation of John Hanlon during his life and that of Kate Hanlon was open and continuous and exclusive, and the principal question in con- troversy was whether the occupation was under a claim of right or under a license or permission from Hodges. Kate Hanlon testi- fied, and some of her children testified, and there was evidence tending to show that the occupation was under the claim that Samuel L. Hodges had given the land to John Hanlon, and that Kate claimed to occupy it as her own because Hodges had given it to her husband. This evidence was controverted by the tenant, who put in evidence that said Kate Hanlon had stated that Hodges had given to her husband and herself the right to occupy the premises and the right to cut the grass, etc. The deeds from Burr to Buchanan, from Bu- chanan to Hanover, and from Hanover to Hodges, reserved a right to the Leicester Reservoir Company, whose pond bordered on the premises, to take material for its dam from the premises; and there was evidence that an employee of the Leicester Reservoir Company had crossed the premises and had torn down a fence within twenty years, which had been put up by Kate Hanlon, and that thereupon Kate Hanlon had restored the fence. After the employee had torn it down the second time she left an opening where he could go through, and thereafter the fence was left undisturbed. There was no evidence, except such as may be inferred from the evidence herein stated, that any of the owners of the paper title of the land, except Hodges, had ever given any license or permission, or had any knowledge of any license or permission, to John Hanlon or Kate Hanlon, or the heirs of John Hanlon, to occupy the prem- ises. The demandant asked the judge to instruct the jury as follows: 1. If the owner of the land verbally gave the land to John Han- lon, and thereupon Hanlon entered on the premises and occupied them continuously till his death, claiming to own them, and Avas not interfered with in said occupation, and immediately upon his death his widow continued to occupy the same continuously in the same way, and the whole period of such continuous occuj)ation amounted to twenty years, the jury would be authorized to find that the title was in Mrs. Hanlon, or in her and the heirs at law of said John Han- lon, and that the title passed to the demandant by virtue of deeds which were annexed as exhibits A and B. 2. If the occupation of Mrs. Hanlon has been sufficient to give a title, under the rules of 46 BOND V. o'gaua [chap. II law given you, but for some license or permission which might qual- ify such ocupation, then the said license or permission must appear to be a license or permission granted by the owner before or at the time the occupation is going on, or in force during the time of such occupation. 3. Any license or permission given by Hodges during his ownership is, in itself, of no legal importance, as affecting occupancy by Mrs. Hanlon subsequent to the date when he parted with his title, and it could have no force in this case, unless there is evidence that the grantees of Hodges, while owners, renewed or adopted, or in some way intentionally continued or revived, sucli license or permission. 4. If the occupation of Mrs. Hanlon of _ the premises in question for twenty years was such that the real owner of the premises could have sued her for trespass for such occupation, then said occupation was adverse within the meaning of the law. 5. On the evidence in the present case the occupation by Mrs. Hanlon of the premises in question, cultivating the same, cut- ting the hay and grass on the same, and pasturing her cow thereon, was such occupation as would support an action of trespass on the part of the OAvner of the estate, in the absence of any license or permission given by the person who OAvned the premises at the time of said occupation. The judge refused to give the instructions in the form requested, but after general instructions as to adverse possession instructed the jury, in substance, that if Hanlon's occupancy was not by gift, but by permission only, he did not acquire any right against the owner of the land; that the right of Hodges to continue that permission 'ceased, as matter of law, with the deed given by him on October 19, 1866; that if Hanlon, wife or children, continued to 7 occupy on the belief that the permission continued, no right could be acquired, but that if the occupancy Avas on the belief that the land was theirs, and continued twenty years uninterruptedly, being ad- verse and open, a title would be acquired. He further instructed them that, if the first occupation by the father Avas adverse and the children continued their occupation, they could add the time of their occupation, if they claimed title, to that of their father, but, if not, then, if the mother's belief Avas that Hodges had giA^en the land to her husband, her uninterrupted occupation for tAventy years, if adverse and open, would giA^e a good title; and that if the occupation by Mrs. Hanlon or the heirs was exclusive, except as to the right re- served to the Leicester Reservoir Company, it was sufficient, because that right was reserved by the deed and exercised thereunder. The demandant excepted to the refusal to giA'e the instructions prayed for, and to the actual instructions given so far as they dif- fered from the instructions prayed for. The jury returned a verdict for the tenant; and the demandant alleged exceptions. Holmes, C. J. This is a Avrit of entrj-. The demandant claims SECT. l] BOND V. o'gARA 47 title under a deed from the widow and lieirs of one Joliii Haiiloii, setting up a title in tlieni by tiie running of the statute of limitations. There was evidence that the holding of John Hanlon and Iiis widow and heirs had been under a claim of right adverse to all the world. There was also evidence that their occupancy had been under a license from one Hodges, who ow^ned the land after October, 1865, and conveyed it in October, 1866. The question raised by the de- mandant's bill of exceptions is whether the fact that the license was ended in 1866 by the conveyance of Hodges necessarily made the occupation by the Hanlons adverse, if they supposed the license still to be in operation and purported to occupy under it, but were in such relations to the land that they would have been liable to an action of trespass, or, better to test the matter, to a writ of entry at the election of the true owner. The answer is plain. " If a man enter into possession, under a supposition of a lawful limited right, as under a lease, which turns out to be void, ... if he be a disseisor at all, it is only at the elec- tion of the disseisee. ... If the party claim only a limited estate, and not a fee, the law will not, contrary to his intentions, enlarge it to a fee." Ricard v. WiUiams, 7 Wheat. 59, 107, 108; Blunden v. Baugh. Cro. Car. 302, 303. Stearns, Heal Actions, (2d ed.) 6, 17. It is true, of course, that a man's belief may be immaterial as such. Probably, although the courts have not been unanimous upon the point, he will not be the less a disseisor or be prevented from acquiring a title by lapse of time because his occupation of a strip of land is under the belief that it is embraced in his deed. His claim is not limited by his belief. Or, to put it in another way, the direction of the claim to an object identified by the senses as the thing claimed overrides the inconsistent attempt to direct it also in conformity to the deed, just as a similar identification Avhen a pistol shot is fired or a conveyance is made overrides the incon- sistent belief that the person aimed at or the grantee is some one else. naflwiray v. Evans, 108 Mass. 267; Bed-man v. Davidson, 162 Mass. 347, 350.' See Sedgwick & Wait, Trial of Title to Land, (2d ed.) § 757. So, knowledge that a man's title is bad will not prevent his getting a good one in twenty years. Warren v. Bowdran, 156 Mass. 280, 282. In the cases supposed the mistaken belief does not interfere with the claim of a fee. But when the belief carries with it a corre- sponding limitation of claim the statute cannot run, because there is no disseisin except the fictitious one which the owner may be entitled to force upon the occupant for the sake of a remedy. Hohan V. CahU, 102 Mich. 206, 213. Liability to a writ of entry and dis- seisin are not convertible terms in any other sense. It is elementary law that adverse possession which will ripen into a title must be under a claim of right, (Harvey v. Tyler, 2 Wall. 328, 349,) or, as it has been thought more accurate to say, " with an intention 48 DALTON V. FITZGERALD [CHAP. II to appropriate and hold the same as owner, and to the exclusion, rightfully or wrongfully, of every one else."^ Sedgwick & Wait, Trial of Title to Land, (2d ed.) § 576. "As Co. Lit. 153 h defines, 'a disseisin is when one enters, intending to usurp the possession, and to oust another of his freehold ' ; and therefore qucBrendum est a judice, quo animo hoc fecerit, why he entered and intruded." Blunden v. Baugk, Cro. Car. 302, 303. The other matters apparent on the bill of exceptions were suffi- ciently dealt with by the judge. Exceptions overruled.^ DALTON V. FITZGERALD [1897] 1 Ch. 440. 1897. This ^ was an action to establish the plaintiff's title to certain lands. In 1828 John Dalton, owner of these lands in the township 1 True owner allowed to maintain ejectment or equivalent action al- though defendant was in possession for the statutory period. Collins V. Johnson, 57 Ala. 304; Newton v. L. N. Rd. Co., 110 Ala. 474; Pulaski County v. State, 42 Ark. 118; McCracken v. San Francisco, 16 Cal. 591, 636 (semble); Hanchett v. King, 4 Day (Conn.) 360; Gay v. Mitchell, 35 Ga. 139; Russell v. Davis, 38 Conn. 562 (semble;) Wright v. Keithler, 7 Iowa 92; Donahue v. Lannan, 70 Iowa 73; Bell v. Fry, 5 Dana (Ky.) 341; Worcester v. Lord, 56 Me. 265; Wayzata v. Great Northern Ry. Co., 50 Minn. 438; Johnson v. Prewitt, 32 Mo. 553; Burke v. Adams, 80 Mo. 504; Colvin V. Republican Land Assn., 23 Neb. 75; Doherty v. Matsell, 119 N. Y. 646; Flanagan v. Boggess, 46 Tex. 330; Nowlin v. Reynolds, 25 Gratt. (Va). 137. 2 On the extent of the title that must be claimed, see Ricard v. Williams, 7 Wheat. (U. S.) 59, 107, 108; La Crosse v. Cameron, 80 F. R. 264, 272; Harden v. Watson, 104 Ark. 641; 148 S. W. (Ark.) 506; lona v. Uu, 16 Hawaii 432; Warren County v. Lamkin, 93 Miss. 123; De Bemardi v. McElroy, 110 Mo. 650, 659; Bedell v. Shaw, 59 N. Y. 46; King v. Toumshend, 141 N. Y. 358. 364; Long Island R. R. Co. v. Mulry, 212 N. Y. 108; McLain V. Bird, 120 N. Y. Supp. 1032, 1034; Tichborne v. Weir, 67 L. T. n. s. 735; O'Conner v. Foley, [19051 1 I. R. 1. In Maas v. Burdetzke, 93 Minn. 295. it was held, that if A acquires title from the United States and thereafter B, without knowledge of such fact, enters and occupies the land with recognition of the supposed title of the United States, and with intention to acquire such title, and continues in such occupation for the statutory period, he acquires the title as against A. Iowa R. R. Land Co. v. Blumer, 206, U. S. 482; Boe v. Arnold, 54 Oreg. 52 (overruling Altschul v. O'Neill, 35 Oreg 202; and Altschul v. Clark. 39 Oreg. 315) ; Spath v. iSa?e.s, 70 Oreg. 269 accord. And see Hayes v. Martin, 45 Cal. 559; McManus v. 0' Sullivan, 48 Cal. 7; Portis v. Hill, 14 Tex. 69; Smith V. Jones, 103 Tex. 632. Contra. Hunnewell v. Burchctt, 152 Mo. 611, (cf. Houghton v. Pierce, 203 Mo. 723; Mather v. Walsh, 107 Mo. 121); M cN aught-'C ollins Imp. Co. V. May, 52 Wash. 632. And see Doe v. Beck, 108 Ala. 71; Skayisi v. Norack, 84 Wash. 39. ■^ The following statement of facts is substituted for that in the report. Ed. SECT. l] DALTOX V. FITZGERALD 49 of Bulk, devised other lands to trustees upon trust to settle in a cer- tain manner. John Dalton died in 1837 leaving two daughters as co-heiresses to whom the Bulk estate descended. By deed of July 30, 1842, the trustees settled the property devised to them upon trust in accordance with the will, but through error included the Bulk estate. The testator's daughters were parties to the deed and executed it, but neither purported to grant the property therein and the married daughter did not acknowledge the instrument. The limitations were, in part, to the daughters for life, remainder to James Fitzgerald for life, remainder to Gerald Fitzgerald for life, remainder to the plain- tiff for life, remainders over. The daughters and James died, and thereupon in 1867 Gerald Fitzgerald entered into possession of the estates comprised in the settlement. On succeeding to the estates he passed a succession duty account, which was rendered as an account on the succssion of real estate under the will of John Dalton and a settlement in pursuance thereof, and included the lands in Bulk. In 1868 by an indenture, reciting the settlement of 1842, he charged the estates including those in Bulk with a jointure for his widow and portions for her younger children in exercise of powers conferred by the instruments of 1842, In January, 1894, however, he procured himself to be registered in the land registry as proprietor of the fee simple of the lands in Bulk, and devised them to the defendants. He died in February, 1894, without issue. The defendants then entered, and the present action was brought to establish the title of the plaintiff as tenant for life under the settlement. Stirling J. For the purpose of the present judgment I assume in favour of the defendants that on the true construction of the will and codicils of John Dalton, the father, the lands and hereditaments in Bulk, to which I shall hereafter refer as the land in Bulk, which are now claimed by the defendants, did not pass by his will and codi- cils, but on the death of the testator devolved to his co-heiresses-at- law. By the deed of July 30, 1842, to which those co-heiresses w^ere parties, the trustees of the will with their privity purported to bar- gain, sell, or release these lands in Bulk by a sufficient description to legal uses in favour of the same persons as would have been en- titled to have legal uses created in their favour if these lands in Bulk had passed by the will and codicils of John Dalton. Xow of this deed Sir Gerald Fitzgerald took the benefit in respect of these very lands in Bulk. This appears to me to be established, first, by the succession duty account passed by him, and, secondly, by the jointure deed executed by him, and dated September 9, 1868. [His Lord- ship referred to those documents, and continued : — ] Upon this evidence I come to the conclusion of fact that Sir Gerald Fitzgerald entered into possession of the lands in Bulk under the set- tlement of 1842. The question is. whether, having so done, he is not estopped from denying the validity of that deed. 50 DALTON ?'. FITZGERALD [CHAP. II Siinibtr questions liavc rcpcafcdly arisen iindci- wills. Those cases {ipi)ear (o divide themselves iiito^two classes. The first is, where a testator having either no title or an imperfect title to land devises it by specific description to or upon trust for a person for life with re- mainders over. Examples of this class are to be found in Hawhshee V. Hmvhshee, 11 Hare, 230, and Board v. Board, L. E. 9 Q. B. 48. I refer particularly to the latter case, as tbe judgment is more elaborate and expresses the grounds of decision more fully than in Hawhshee v. Hawhshee, 11 Hare, 230. In Board v. Board, L. E. 9 Q. B. 48 the testator was simply tenant by the curtesy of certain premises. He devised them to trustees for his daughter Eebecca for life, with remainder to his grandson William. Then, upon the testa- tor's death, Eebecca entered into possession of the property, and paid the annuities charged upon the land, and was suffered by the heir-at- law to remain in possession undisturbed for more than twenty years. Then "William conveyed his remainder to the plaintiff. Eebecca, after she had been in possession more than twenty years, conveyed the premises in fee to the defendant, who, upon his [her] death, took possession. The plaintiff, the assignee of William, the remainder- man, having brought ejectment, it was held that, Eebecca having entered under the will, the defendant claiming through her was estopped as against all those in remainder from disputing the validity of the will, and that the plaintiff was entitled to recover. In giving judgment Blackburn J. says, L. E. 9. Q. B. 53 : '' The case is like that of a tenant coming in under a landlord : he is estopped from denying his landlord's title. As to the point that Eobert, being only a tenant by the curtesy, had nothing to devise, it may be said that in many instances the landlord has only an equitable title, and yet the tenant is estopped from disputing such title. I think if the law were otherwise the consequences would be disastrous, for how unjust it would be if a person who comes in under a will as tenant for life, and continues in possession until twenty years have elapsed, could say there was a latent defect in the title of his predecessor, and the estate devised really belonged to the heir-at-law, and his title being barred, he, the tenant for life, is entitled to the property in fee simple. It is _(: contrary to the law of estoppel that he who has obtained possession under and in furtherance of the title of a devisor should, say that such title is defective. My brother Martin, in Anstee v. Nehns, 1 H. & K 232; 26 L. J. (Ex.) 8 says that the Statute of Limitations can never be so construed that a person claiming a life estate under a will shall enter and then say that such possession was unlawful, so as to give his heir a right against a remainderman. That seems directly in point. It is good sense and good laAV. All we have to decide here is that Eebecca, having entered under the will, William, the remainderman under the same will, has a right to say that she and all those claiming through he;* are estopped from denying that the will was valid." Mellor J. says : ''A person cannot say that a SECT. l] DALTON V. FITZCIEKALD 51 will is valid to enable liini to take a benefit under it, but invalid so far as regards the interests of those in remainder who claim under the same will." Quain J. says : " I decide this case on the simple point that a person who takes under a will, and acts on the will in paying the legacies and annuities given under it, cannot afterwards turn around and place himself in a different position, and maintain that he is in a position adversely to those who take under the same will." No doubt has ever been thrown upon that class of cases; but there is a second class as to which there is a conflict of opinion, namely, where a testator, having a good title to property, has not effectually devised it, and the tenant for life of the property effectually devised by the will has entered, just as if it had been included in a valid de- vise, and acquired by possession a title against the heir. The case which has most frequently happened is under the law as it stood prior to the Wills Act, when a testator was incom.petent to devise land acquired subsequently to his will. Of this class of cases Paine V. Jones, L. R. 18 Eq. 320, is a leading example. There a testator by his will, dated in 1824, devised all his real and personal estate, and also all other his estate and effects of which he might be possessed at the time of his decease, to his wife and another trustee, in trust to pay the rents to his wife for life, with remainders over. The testator purchased a freehold estate after the date of his will. On his death his widow (the other trustee having disclaimed) became sole trustee of his will, and entered into possession of the after-acquired property as well as the devised estate, believing that all the propert}^ passed by the will. She continued in possession for more than twenty years, and then, being informed that she had acquired a title by adA^erse possession, she sold the estate to a purchaser for value. It was held, upon a bill filed by the remainderman un(h'r the will to oust the pur- chaser, that the tenant for life had acquired a good title by adverse possession against the remainderman, and tlie hill was dismissed. Malins, V.-C, who decided the case, goes through all the prior cases, including Board v. Board, L. K. 9 Q. B. 4S, and llairkshcc v. Tlaw'ks- bee, 11 Hare, 230, and he expresses his coiicurrcnce with those cases, but he distinguishes them. Referring to thcni, he says, L. R. 18 Eq. 328 : " All these cases proceed on the principle that if parties have no other title than the will, they are estopped from denying the title of persons under the same will. Under this will the widow had no title whatever. The defendants had a title under the will." That is apparently a misprint for " widow." The Vice-Chancellor then goes on : " I think this is a distinct case of adverse possession, and the defendants claiming under the widow have acquired a title as against those persons whose title is oidy under the will." In a sub- sequent case of In re Stringe/s Estate, 6 Ch. D. 1, Sir George Jessel held that if a testator nuuh^ an invalid devise of ])ro])erty, to which he himself had a good title, to A. for life with remainders over, and 52 DALTON V. FITZGERALD [CHAP. II A. acquired a good title by possession against the heir-at-law, A. was not estopped from saying, as against the remainderman, that the de- vise was invalid. Upon appeal the devise which the late Master of the Kolls had held to be invalid was held to be valid, and no opinion was expressed on the decision of the Master of the Rolls on the point in question ; but it appears to me that when his judgment is examined the Master of the Rolls did not intend to throw any doubt upon the class of cases of which Board v. Board, L. R. 9 Q. B. 48, is an ex- ample. At page 10 of the report he says : " A man is in possession of land with a defective title, but he has possession. In fact, under the old law, he could not have devised without, except in the case of certain reversions. He devises to a man for life with remainder over. The devisee, having no title except under the will, enters under the will. It has been held that he cannot deny that the testator had a right to devise in the way he has devised; that is, that the testator had a sufficient title to support the devise as far as the devisee is con- cerned — not to make the devises valid which were invalid, because the devises were invalid per se if the testator had insufficient title. Therefore the whole of the estoppel is this : you have entered under the will of a man who had possession as far as you are concerned : possession is the fee: you cannot say, you having no title, that he had less than the fee which he purported to devise. You are estopped from denying his title to dispose of that fee, though you may have found out afterwards that he was only tenant for years, or tenant from year to year, or tenant for life, or anything else. You have got possession under that will, and possession in law, as far as you are concerned, of the fee. All that I understand. That is a little extension of the doctrine of estoppel by contract, but it follows on the same principle." On the other hand, in Anstee v. Nelms, 1 H. & ]^. 230, 232, Pollock C. B. and Martin B. appear to have been of opinion that the principle laid downi in Board v. Board, L. R. 9 Q. B. 48, was applicable to a case similar to that of Paine v. Jones, L. R. 18 Eq. 320, and in the case of Kenraghan v. M'Nally, 12 Ir. Ch. Rep. 89, the Lord Chancellor and the Court of Appeal in Ireland appear to have given a decision which was not in accordance with that of Malins Y.-C. It is contended that the present case is governed by the decisions in Paine v. Jones, L. R. 18 Eq. 320, and In re Stringer's Estate, 6 Ch. D. 1. In my judgment that is not so. The question is not whether Sir Gerald Eitzgerald is estopped from denying that John Dalton devised the lands in Bulk, but whether he is estopped from denying the validity of the settlement of July 30, 1842. It appears to me that the reasoning in Board v. Board, L, R. 9 Q. B. 48, applies with as much force to a deed as to a will, and I see no reason why, if a grantor who has no title or an imperfect title to a particular piece of land purports to grant it by deed to A. for life with re- mainders over, and A. enters under the deed and acquires a good title SECT. l] DOE d. GRAVES V. WELLS 53 against the true owner, he shouhl not be held to be estopped as against those in remainder from disputing the validity of the deed. It is to be observed that in this case the true owners were parties to and executed the deed, and though they did not grant, or purport to grant, the lands in Bulk, still they, by executing the deed, assented to the act of the trustees, and shewed that they treated the deed as a proper settlement in pursuance of the directions in the testator's will. It was said, however, that there could be no estoppel, as the truth appeared on the face of the settlement of July 30, 1842. But, in my judgment, it does not appear on the face of that deed either that the manor of Bulk was only a reputed manor, so that the lands in Bulk belonging to the testator did not pass under a devise of that manor, or that upon the true construction of the testator's will there was an intestacy as regards the lands in Bulk. It is also urged that the settlement of July 30, 1842, was only machinery for giving effect to the dispositions made by the testator, and gave no further or better title than the will itself. This seems to me to give too little weight to the deed, which confers a legal title on the beneficiaries under the will, and defines many rights conferred upon them by the will and codicils (as, for example, that of creating jointures and charging portions for younger children), of which the beneficiaries have availed themselves. The conclusion, therefore, to which I come is that the doctrine of estoppel applies to this case, and that the defend- ants are precluded from denying that the deed of 1842 was an effectual settlement, and consequently that the plaintiff is entitled to judgment.^ DOE d. GRAVES v. WELLS 10 A. & E. 427. 1839. Ejectment [against Wells and Trowbridge] for lands in Wilt- shire. The several demises were alleged in the declaration to have been made on l7th October, 1836, habendum for seven years, from 15th October, 1836. After pleas pleaded, Wells compromised with the lessors of the plaintiff, but Trowbridge continued to defend. On the trial before Patteson, J., at the Wiltshire Summer Assizes, 1837, it was proved, on the part of the plaintiff, that (iraves, the lessor of 1 Affirmed. [18971 2 Ch. 86. Sec Reynolds v. Trawick, 78 So. (Ala.) 827; Wright v. Slice, 173 111. 571; Roberts v. Coi, 259 111. 232; Hanson v. Johnson, 62 Md. 25; Hayncs v. Boardman, 119 Mass. 414; Charles v. Fickeiis. 214 Mo. 212; Brittain v. Daniels, 94 N. C. 781; Anderson v. Rhodns, 12 Rich. Eq. (S. C.) 104, 109; Stevens v. Bomar. 9 Humph. (Tenn.) 546; Broivn v. Brovm, 14 Lea (Tenn.) 253; Austin v. Rutland R. R. Co., 45 Vt. 215. 236; Molony v. Molony, [1894] 2 I. I. R. 1, 6; Estate of Tennent, [19131 1 I. R. 280; Smith V. Smith, 5 Ont. Rep. 690; Connors v. Myatl, 24 Dom. L. Rep. 537; In re Anderson, [1905] 2 Ch. 70; English cases cited in Dalton v. Fitzgerald; Pro- fessor H W. Ballantine, 28 Yale L. J. 224-235. 54 DOE d. GRAVES ?'. WELLS [CHAP. II the plaiiitifT, was entitled to the reversion upon a lease under which Trowhridge held, whi(di lease was for ninety-nine years, to end in 1888, determinable on certain lives not yet expired, at a rent. It was further proved that, on 17th October, 1836, Graves's agent, in a conversation with Trowbridge, who was then in possession, de- manded the rent of him, but Trowbridge then refused to pay it, and asserted that the fee was in himself. The counsel for the plain- tiff contended that this was a disclaimer, working a forfeiture of Trowbridge's term; the defendant's counsel disputed this, and con- tended further that, even supposing this to be a forfeiture, the demise was laid too eavlj, being on the very day of the supposed forfeiture. The learned judge directed the jury to find for the plaintiff, if they were of opinion that the words used by Trowbridge were not mere idle language, but a serious claim of the fee. The jury having found for the plaintiff, the learned judge reserved leave to the defendant's counsel to move to enter a verdict for the defendant. In Michael- mas Term, 1837, Crowder obtained a rule accordingly. Lord Denman, C. J. I think Doe dcm. Ellerhroch v. FJynn, 1 Or. M, k R. 137; s. e. 4 Tyrwh. 619, is distinguishable from the present case. There it was thought that the tenant had betrayed his land- lord's interest by an act that might place him in a worse condition : if the case went farther than that, I should not think it maintainable. The other instances are cases either of disclaimer upon record, which admit of no doubt as to the nature of what is done, or of leases from year to year, in speaking of which the nature of the tenancy has been sometimes lost sight of, and the words " forfeiture " and " dis- claimer " have been improperly applied. It may be fairly said, when a landlord brings an action to recover the possession from a defendant who has been his tenant from year to year, that evidence of a disclaimer of the landlord's title by the tenant is evidence of the determination of th-e will of both parties, by which the duration of the tenancy, from its particular nature, was limited. But no case, I think, goes so far as the present and I feel the danger of allowing an interest in law to be put an end to by mere words. LiTTLEDALE, J. We should uot, indeed, be justified in putting an end to a state of law on account of its danger; for we must give parties whatever the law entitles them to : but here the law leads to no such consequence. The case is not like that of a tenancy from year to year, which last only as long as the parties please, and where what has been called a disclaimer is evidence of the cessation of the will. Here property is claimed on the ground of forfeiture. !N^ow, assume the jury to have been right in their verdict : still the facts do not go far enough for a forfeiture. In Oomyns's Digest, tit. Forfeiture, and in Viner's Abridgment, tit. Estate (see 10 Vin. Abr. 370, sqq. Forfeiture (0. b), &c.), a very great number of instances of for- feiture are given : but there is no allusion to any case of this kind ; the instances are either of matters of record, or of acts in pais quite SECT. l] DOE d. GRAVES V. WELLS 55 different from what is here insisted upon. In an Anonymous Case in Godbolt, 105, pi. 124, the tenant claimed the fee on the record, in an action of debt; and yet it was held to be no forfeiture. Doe dem. Ellerhrocl' v. Flynn has been satisfactorily distinguished by My Lord. Pattesox, J. Xo case has been cited where a lease for a definite term has been forfeited by mere words. We know that mere Mords cannot work a disseisin, although some acts have been held to work a disseisin at the election of the party disseised, which, as against him, Avould not work a disseisin. An attornment again is an act. Here there is no act; and, if we held that there was a forfeiture, we should be going much beyond any previous decision. It is sometimes said that a tenancy from year to year is forfeited by disclaimer: but it would be more correct to say that a disclaimer furnishes evidence in answer to the disclaiming party's assertion that he has had no notice to quit; inasmuch as it would be idle to prove such a notice whor(> the tenant has asserted that there is no longer any tenancy. Williams, J., concurred. Rule absolute} 1 DeLancey v. Gonong, 9 N. Y. 9, accord. " Till within a comparatively recent period it was considered that a tenant could not in any sense, repudiate his tenancy-, even where it existed bj" parol merely, or from year to year; or that he could not do this without surrender- ing or abandoning the premises. But it is now settled otherwise in this State, and in the United States Supreme Court. The tenant. b>' distinct notice to his landlord that he will no longer hold the premises under him, has been regarded here as commiting an absolute disseisin, and after that, "as holding adverse to the landlord, and imless evicted before the term of the Statute of Limitations expires, he will, by such advense possession, acquire title in his own right. In WiUison v. Watkin.-;, 3 Peters U. S. 48, Mr. Justice Baldwin says: ' Had there been a formal lease for a term not then expired, the lessee forfeited it by this act of hostility; had it been a lease at will, from year to year, he was entitled to no notice to c^uit before an ejectment. The landlord's action would be as against a trespasser, as nuu-h so as if no relation had ever existed between them.' This case was professedly followed in two cases in this State: Greene v. Munnon, 9 Vt. 37; Hall v. Dewey, 10 Vt. 593; and has been recognized in many others. It is undoubtedly a new doctrine, and adopted here from a regard to the difference in our land tenures, and in our civil and social relations and institutions in many respects, from those in England." Per Redfield, C. J., in Sherman v. Champlain Transportation Co., 31 Vt. 162, 177. See 2 Taylor, Landl. and Ten., 9th ed., § 522; 2 Tiffany, Landl. and Ten., § 192. The landlord must have notice. Bedluu v. .V. }'. Dry Dock Co., 112 N. Y. 263. But compare lUinois Steel Co. v. Budzisz. 139 Wis. 281. On the adverse possession of land encroached on by a tenant for years, see Wilhebn v. Herron, 178 N. W. (Mich.) 769; Phark v. Jones, 122 Mo. 125; Dempsey v. Kipp, 61 N. Y. 462. 470; Read v. Allen, 63 Tex. 154; Doe d. Lloyd V. .lones, 15 M. & W. 580; Andreios v. Haile.^, 2 E. & B. 349; Doe d. Crojt V. Tidbury, 14 C. B. 304; KingHmill v. Millard. 11 Exch. 313; Tabor v. Godfrey, 64 L. J. Q. B. 245; 18 Halsbury, Laws of England, §§ 1079-1081. 56 MIXTEK V. WOODCOCK [CHAP. II MIXTER V. WOODCOCK 154 Mass. 535. 1891. Writ of entry, dated December 7, 1886, to recover a parcel of land on Fruit Street in Worcester. After the former decision, re- ported in 147 Mass. 613, the action at law was changed in the Supe- rior Court to a suit in equity. 'At the hearing, before Blodgett, J., it appeared in evidence that John E. Luther, who died in June, 1856, leaving a widow but no issue, was seised in fee of the parcel in ques- tion; that by his will his widow, under the former decision, took a life estate only in the premises, but remained in possession from the death of the testator until her death in 1886, believing that she took an estate in fee under the will ; and that she occupied them openly in all respects as her own, claiming title in fee thereto. On three several occasions, in 1862, 1876, and 1885, she gave mortgages there- of in the usual form, all of which were recorded, and all but the last of which were discharged. The plaintiff, who was the demandant in the writ of entry, was the mortgagee named in the last of these mortgages, and believed that the widow had a title in fee at the time he took his mortgage. The condition of the mortgage having been, broken, he duly foreclosed, under a power of sale contained therein, and a conveyance was afterwards made to him. In August, 1886, he entered upon the premises for the purposes of foreclosure, but never had any other possession thereof. The defendant, who was a tenant in the writ of entry, made no claim of title, but was in possession at the time the writ of entry was brought, and continued in possession of the demanded premises at the time of the hearing. The judge ruled that, as matter of law, it having been decided that the widow of John E. Luther took a life estate only under the will, she could not acquire a title in fee to the premises by adverse possession, and that the plaintiif took no title by his mortgage and its foreclosure which would enable him to maintain this suit in equity, or an action at law, against the defendant for the recovery of the land and dismissed the bill, and reported the case for the de- termination of this court. Morton, J. Without vmdertaking to say that in no case could the occupation of a life tenant be so long continued and of such a character as to vest in him a title in fee by adverse possession, and without intending to intimate that it could, we think that the ruling of the judge who heard this case was correct. Under the decision in the case of Mixter v. Woodcock, 147 Mass. 613, the only estate which the widow had was a life tenancy. She was in possession of the premises as a life tenant. Her belief that she owned the prop- erty absolutely did not give her any additional rights, nor did the like belief on the plaintiff's part help matters. That simply made the mistake a common one. The widow Avas not in possession under SECT, ij MIXTER V. WOODCOCK 57 ji deed or itistnuueiit whicli i)urported to give her a fee, but in fact only gave lier a life estate, and whicli might have afforded some color for her belief that she owned the fee and for her acts; she was in possession under the will of her husband, which did not purport to give, and did not in fact give, her anything except a life estate. If the mortgages executed by her may be regarded as acts of dis- seisin, so that the reversioner could have entered, he was not obliged to do so, but could wait until his right of entry accrued upon her death; and neither the widow nor those who claim under her would acquire any rights against him, or title to the property, by virtue of her or their occupation in the mean time. Wells v. Prince, 9 Mass. 508; Wallingford v. Hearl, 15 Mass. 471; Tilson v. Thomp- son, 10 Pick. 359; Miller v. Ewing, 6 Cush. 34. The demandant must recover on the strength of his own title. Failing to show title, he must at least show a better right to possession than the tenant. This he does not do. The decree dismissing the bill must therefore be Affirmed.^ 1 See Pooler v. Hyne, 213 F. R. 154; Mettler v. Miller, 129 111. 630, 642; Maring v. Meeker, 263 111. 136; Keith v. Keith, 80 Mo. 125; Anderson v. Miller, 103 Neb. 549. Adverse Possession against reversioners and remaindermen. Where there is a reversion or the remainder is vested. Gregg v. Tesson, 1 Black (U. S.) 150; Woodstock Iron Co. v. Fullenwidcr, 87 Ala. 584; Sloss- Sheffield Co. v. Yancey, 202 Ala. 458; Franke v. Bcrkncr, 67 Ga. 264; Higgins V. Crosby, 40 111. 260; Kibbie v. Williams, 58 111. 30; Castner v. Wolrod, 83 111. 171; Field v. Peoples, 180 111. 376; Cassem v. Prindle, 258 111. 11; AlU.^on V. White, 285 111. 311; Gibbs v. Gerdes, 291 111. 490; Marray v. Quigley, 119 Iowa, 6; Nevelier v. Foster, 186 Iowa 1307; Bates v. Adams, 182 Ky. 100; May V. Chesapeake & O. Ry. Co., 184 Ky. 493; McCoy v. Poor, 56 j\Id. 197; Wells v. Prince, 9 Ma.«^s. 508; Wallingford v. Hearl, 15 Mass. 471; Stevens v. Wi^iship, 1 Pick. (Mass.) 317; Tilson v. Thompson, 10 Pick. (Mass.) 359; Whitaker v. Whitaker, 157 Mo. 342; Bohrer v. Davis, 94 Neb. 367; Criswell v. Criswell, 101 Neb. 349; Foster v. Marshall, 22 N. H. 491; Jackson v. Mancius, 2 Wend. (N. Y.) 357; Baker v. Oakwood, 123 N. Y. 16; Thompson's Heirs v. Green, 4 Ohio St. 216; Moore v. Luce, 29 Pa. 260; Jeffcoat V. Wingard, 110 S. C. 482; Central Land Co. v. Laidley, 32 W. Va. 134. Where the remainder is contingent. Graft v. Rankin, 250 Fed. 150; Brian v. Melton, 125 III. 647; Miller v. Pence, 132 111. 149; McFall v. Kirk- patrick, 236 111. 281; ///// v. Hill, 264 111. 219; Fearne, C. Rem. 287. See Lewis v. Barnhart, 145 U. S. 56; Dugan v. Follett, 100 III. 581; Le-wis V. Pleasants, 143 III. 271; Weigel v. Green, 218 111. 227; Kales, 14 111. L. Rev. 124; Kales, Estates and Future Interests, 2d ed., §§ 383-397. Adverse Possession as a bar to dower. Willia77is v. Williams, 89 Ky. 381 ; Putney v. Vinton, 145 Mich. 219, 9 Ann. Gas. 149 note; Winters v. De Turk, 133 Pa. 359. Gurte.^y. Shorlall v. Hinklcy, 31 111. 219; Calvert v. Murphy, 73 W. Va. 731, 52 L. R. A. n. s. 535 note. 58 DOE (I. SOUTEU V. HULL ET AL. [CHAP. II DOE d. SOUTEK v. HULL ET AL. 2 Dovvl. & R. 38. 1822. Ejectment [on the several demises of John Souter and George Chatfield and Elizabeth his wife] to recover the possession of certain freehold lands and premises situate at Midhurst, in Sussex. At the trial before Park, J., at the last assizes for the County of Sussex, the case was this : Henry Souter, the father of the lessor of the plaintiff John Souter, being seised in fee of the premises in question, made his will, bearing date the 12th of June, 1788, by which he gave the same to his wife in these words, " I give to my loving wife Mary Souter all my household goods and chattels, and I give to her a barn and piece of free land at Midhurst, in Sussex." On the 7th of October, 1790, the testator died seised, leaving John Souter, who claimed to be his eldest sou and heir-at-law, and his said wife, him surviving. On the 9th of October, 1794, the widow and John Souter jointly conveyed the premises to Christopher Hull, the father of the defendants, by deed of bargain and sale, who took possession and remained undisturbed therein till July, 1814, when he died, leaving his will, whereby he demised the premises to the defendants, in equal moieties. Whicher Souter Avas, in fact, the eldest son and heir-at-law of the testator Henry Souter, whom he survived, but he did not join in the conveyance to Mr. Hull. On the 6th of J^Tovem- ber, 1810, Whicher Souter made his will, by which he bequeathed all his real estate to his wife Elizabeth Souter, and his brother John Souter (the party who joined in the conveyance to Mr. Hull), upon trust to make an inventory thereof, and first, by sale of part, to pay his debts, &c., the residue to his wife for life, or while she continued his widow, and upon her death, or marriage, to his children, share and share alike. Whicher Souter died shortly after making this Avill, and in 1803 his widoAV married the lessor of the plaintiff, George Chatfield. Upon this case it w^as contended, that the lessors of the plaintiff were entitled to recover the premises, as devisees in trust under the Avill of Whicher Souter, the heir-at-laAv of Henry Souter, the original testator, and that the defendants must resort to their action against John Souter, the party to the conveyance to Mr. Hull, upon the deed. For the defendants three objections were taken. First, that as Whicher Souter was not in possession when he made his Avill, he could not devise a right of entry; second, that the realty did not pass under his Avill, the language of it being clearly referable to personal property only, and third, that as Mr. Hull had maintained an adverse possession for twenty-two years, and had died so ad^^ersely possessed, and had bequeathed the estate to his children, a descent was cast. The learned judge, hoAvever, was of opinion that the lessors of the plaintiff had shoAvn a good title, and directed the jury to find a verdict for tlie plaintiff, reserving the SECT, l] DOE d. SOUTER V. HULL ET AL. 59 })()iiits of hiw raised i'nv the (lot'eudants, with lilicrty to them to laove to enter a nonsuit, if the court should he of opinion tliat the objections were well founded. Abbott, C J. I am of opinion that then; is no foundation for either of the objections presented for our consideration. With re- spect to the first, I think there is no ground for saying, that the adverse possession of Mr. Hull has operated as a disseisin of Whicher Souter. Mr. Hull did not take possession wrongfully, he only wrongfully continued possession. He came in under right and title, which remained good during the life estate of Henry Souter's widow, but ceased at her death, and from that period he continued in pos- session wrongftilly. Btit what is the effect of that? No more than that he is tenant by sufferance to Whicher Souter, who permitted him for a period to remain in possession. It lias been held in a recent case in this court, that a mortgagor in actual possession of mortgaged premises is tenant by sufferance to the mortgagee, and this is a still stronger case than that. I know of no authority which says, that a mere wrongful possession divests the estate of the party against whom the possession is adversely held. If tlie argument is to be carried to that extent, a mere adverse possession might be made equivalent to a fine and feoffment. Then, as to the second objection, I am decidedly of opinion, tliat no descent has been cast in this case. To allow the argument on this point would be to allow, that wherever a wrongful possessor dies in possession, and his heir enters, the real heir-at-law cannot siipport ejectment. That would be a monstrous proposition generally, but especially in this case, where the heir-at-law was never disseised, and the defendants in the action were never seised at all. The language of " descent cast " imports that the ancestor is seised and the question is begged, if it is assumed that in this case Hull, the ancestor of the defendants, was seised. Bayley, J. I am of the same opinion. In order to bar the power of devising a right of entry, there must be an actual disseisin of the devisor a mere adverse possession Avill not suffice ; he must be com- pletely ousted of the freehold. The question, then, is whether Whicher Souter, the devisor und(>r whose will the lessors of the plaintiff' claim, was ever divested of the freehold; and T am of o])inioii that he never was. The relation of Mr. Hull to Whicher Souter is that of land- lord and tenant; the former was tenant by sufferance to the latter from the moment of Mrs. Souter's decease. This point was laid down in this court in the recent case cited by My Lord, and is founded tipon the doctrine in Lord Coke. Co. Lit. 240 b. The lessors of the plaintiff have shown a clear title in Whicher Souter, and if he had an estate in the premises, he was competent to devise it ; he does devise it, and it vests in the lessors of the plaintiff as de- visees in trust under his will. To support a descent cast, it must be shown that the ancestor was seised. Here, there was no seisin of 60 DOE (1. PARKER V. GREGORY [CHAP. II Mr. Hull, tlio ancestor. In ii case whicli I rcmeniLcr came from Warwick some time since, the counsel relied upon a descent cast. It appeared in evidence that the party originally came into possession rightfully, and his possession was lawful, until a particular person died. After the death of that person, the party held over, and levied a fine, and when he died an ejectment was brought against his heir. On behalf of the heir it was insisted, that there had been a descent cast. 'No, said the court ; for upon the death of the particular per- son alluded to, the ancestor became tenant by sufferance only; and therefore there could not be a descent cast, because there was no seisin. The definition which Lord Coke gives of a tenant by suffer- ance, is he who originally comes in by right, but continues in posses- sion by wrong. Now, that is exactly the description of Mr. Hull, under whom the defendants claim, and therefore I think the lessors of the plaintiff are entitled to recover. It is said, that there has been an adverse possession for twenty-two years in this case. I know of no case in which it has been held, that a mere adverse possession (if this case is so put), can operate as a disseisin, to prevent the owner of the freehold from devising it by will. Mr. Hull was only a dis- seisor in one way, namely, at the election of Whicher Souter. There are many authorities which say, that this would only be a disseisin at the election of the owner of the freehold of inheritance; and if Whicher Souter had thought fit to treat it as a disseisin, he would be warranted in doing so; but he was not bound to do so. Doe d. Athyns v. Horde, Cowp. 689. On these grounds, I am of opinion that the lessors of the plaintiff are entitled to recover. HoLDROYD, J., and Best, J., concurred. Rule refused} DOE d. PARKEE v. GREGORY 2 A. & E. 14. 1834. Ejectment for lands in Gloucestershire. On the trial before Alderson, B., at the last Gloucester Summer Assizes, the following facts were proved. Thomas Rogers, being siesed in fee of the lands in question, devised them to his son Thomas Rogers for life, re- mainder to William Rogers in tail male, remainder to the devisor's right heirs in fee. The will gave a power to the tenant for life to settle a certain portion of the lands upon his wife for life, by way of jointure. After the death of the devisor, the son Thomas Rogers, being then tenant for life, settled the lands in question, being not more than the portion defined, upon his wife for life. He died in 1879, leaving his wife surviving, who afterwards married a person of the name of Vale. In 1810, Mr, and Mrs. Yale levied a fine of the lands to their own use in fee. In 1812, Mrs. Yale died, more 1 See Sndth d. Teller v. Burtis, 6 Johns. (N. Y.) 197. SECT, l] DOE d. PARKER V. GREGORY 61 than twenty years before the commencement of this action. Mr. and Mrs. Vale had continued in possession of the lands until Mrs. Vale's death, and Mr. Vale from thenceforward continued in possession till his own death, which occurred in 1832. William Rogers died, leav- ing several children, all of whom died before Mrs. Vale; and of whom none left issue, except one daughter, who died one month before Mrs. Vale, leaving issue a son, who died without issue in 1814, within twenty years of the bringing of the action. The lessor of the plain- tiff was heir at law to the devisor, Thomas Rogers. It did not appear how the defendant got into possession. On these facts, the learned judge nonsuited the plaintiff, on the ground that the right of entry was barred by the Statute of Limitations, but he reserved leave to move to set the nonsuit aside, and enter a verdict for the plaintiff. Per Curiam (Lord Denman, C J., Taunton, Patteson, and Wil- liams, JJ.) The fine will make no difference; ^ but, as to the ques- tion of the husband's adverse possession, we will take time to consider. On a subsequent day Lord Denman, C. J., delivered the judgment of the court. The other points moved by my Brother Talfourd were disposed of by the court, but we wished to consider whether he Avas entitled to a rule on the ground that there had been no adverse possession for twenty years. The fact was, that the defendant had been in posses- sion for a longer period, from his wife's death, but he came in origin- ally in her right, and had not directly ousted the rightful owner, but merely continued where he was, to his exclusion. A case of Reading V. Raivsterne, reported by Lord Raymond and Salkeld, 2 Ld. Raym. 830 s. c. 2 Salk. 423, was mentioned but in that case, though an actual disseisin is declared necessary, those words must be taken with reference to the subject-matter, and are there contra-distinguished from the mere perception of rents and profits, in the case of joint- tenants. But in Doe dem. Burrell v. Perkins, 3 M. & S. 271, the court was of opinion that a fine levied by a person who was in pos- session under the same circumstances as the defendant here, operated nothing, because he came in by title, and had no freehold by dis- seisin ; and it was argued, that the defendant here was also to be con- sidered as having entered rightfully, and committed no disseisin. We are, however, of opinion, that though this may be so for the pur- pose of avoiding a fine, it cannot prevent the defendant's possession from being wrongful, from the very hour when his interest expired by his wife's death. It is clear that he might have been immediately turned out by ejectment. We think, therefore, that his continuing the same possession for twenty years entitles him to the protection of the Statute of Limitations, and that this action has been brought too late. Rule refused.'^ 1 Stat. 11 Hen. VII. c. 20; Stat. 32 Hen. VIII, c. 36, §2. 2 2 Smith, L. C, 11th ed., 652-655. 62 SUMNEK V. STEVENS [CHAP. H SUMNER V. STEVENS 6 Met. (Mass.) 337. 1843. Writ of entry. The demandant claimed title to the demanded premises under a deed of warranty from Stephen Stevens, her father, who was also father of the tenant. At the trial, before Wilde, J., the tenant rested his defence upon a title by disseisin of said Stephen, and offered evidence tending to show, that more than 20 years before the date of the demandant's M^rit, and before said Stephen's deed to the demandant, said Stephen made a gift to him, by parol, of the de- manded premises, and that he afterwards went into possession thereof, and continued in exclusive possession upwards of 20 years. Upon this evidence, the jury were instructed, that if they believed it, and also believed that the tenant entered and continued his pos- session, claiming title, this would constitute a title by disseisin, and that they should return a verdict for the tenant. The jury found a verdict for the tenant, which is to be set aside, if the foregoing in- struction was incorrect. Shaw% C. J. The case shows that the tenant entered, more than twenty years before the commencement of this action, under a parol gift from his father, and has had the sole and exclusive possession ever since. Had the tenant simply shown an adverse and exclusive possession twenty years, he would have shown that the owner had no right of entry, and that would have been a good defence to this action. Is it less so, that the tenant entered under color of title? A grant, sale or gift of land by parol is A'oid by the Statute. But when accompanied by an actual entry and possession, it manifests the intent of the donee to enter and take as owner, and not as tenant ; and it equally proves an admission on the part of the donor, that the possession is so taken. Such a possession is adverse. It would be the same if the grantee should enter under a deed not executed con- formably to the Statute, but which the parties, by mistake, believe good. The possession of such grantee or donee cannot, in strictness, be said to be held in subordination to the title of the legal owner; but the possession is taken by the donee, as owner, and because he claims to be owner; and the grantor or donor admits that he is owner, and yields the possession because he is owner. He may re- claim and reassert his title, because he has not conveyed his estate according to law, and thus regain the possession ; but until he does this, by entry or action, the possession is adverse. Such adverse possession, continued twenty years, takes away the owner's right of entry. Barker- v. Salmon, 2 Met. 32; Parker v. Proprietors of Locks and Canals, 3 Met. 91; Brown v. King, 5 Met. 173; Clapp V. Bromagham, 9 Cow. 530. We have not used the term " dis- seised," because the accurate definition and description of disseisin has been the subject of much discussion. The term is somewhat SECT. l] GRUBE V. WELLS 63 equivocal, and tlic same facts may prove a disseisin, for some pur- poses and in some aspects, and not in otliei's. It is enough for the decision of this case, that the tenant had the actual, exclusive and adverse possession of the estate more than twenty years, by which the owner, and all persons claiming under him, were barred of their entry and right of action. Kev. Sts. c. 119, § 1. Judgment on the verdict.^ GRUBE V. WELLS 34 Iowa, 148. 1871. Appeal from Des Moines District Court. Action to recover the possession of a part of lot 260, in the north- ern addition to the city of Burlington, being a strip of about the width of fifteen feet, of the south end of said lot. Trial to the court without a jury, and judgment for plaintiff. Defendant appeals. Beck, C. J. The District Court found the following facts, and thereupon rendered judgment for plaintiff: The plaintiff is the owner of lot 260, in the northern addition to the city of Burlington, and the defendant owns lot 1, in Wood's subdivision, which adjoins plaintiff's lot on the south. About twenty-five years ago defend- ant's grantor enclosed lot 1, and made other improvements upon it. The fence on the north was set about fifteen feet over the line upon lot 260, which was unenclosed, and remained in that condition until within the last four or five years. Defendant and her grantor have had actual possession and exercised rights of ownership over the strip of land in controversy since it was enclosed, but have never had any other right or color of title than such as result from the possession stated. Tliey have lield tlie land un(h'r tlie belief that it was covered by the deeds conveying to them lot 1, and were not in- formed otherwise until within about one year, when, upon an accurate survey, the true line was established. There is no dispute about the other boundaries of lot 1, and defendant's title and posses- sion to the whole of it have never been questioned. Defendant has paid taxes continuously on lot 1, and plaintiff on lot 260. The question presented by the foregoing facts, as found by the Dis- trict Court for determination, is this: Is defendant protected in lier possession of the land in dispute by the Statute of Limitation? I. The Statute of Limitation is not available as a defence, unless the defendant holds the land under color of title, or has had actual adverse possession for the full time limited by the Statute for the ^ Reader v. WiUlamt^. 216 S. W. (j\Io.) 738, areord. Contra. Clark v. McClure, 10 Grat. (Va.) 305. Compare Urbanec v. Urbancc, 174 X. W. (N. D.) 880. 64 GRUBE V. WELLS [CHAP. II commencement of the action. Right v. Keithler, 7 Iowa, 92; Jones V. Hockman, 12 Id. 101 ; s. c. 16 Id. 487. It is not claimed that in the case befoi'e us defendant holds color of title to the land, but re- covery is resisted on the ground that she and her grantor have been in the adverse possession of the property for the time which, under the Statute, will bar the action. We are required to determine whether the possession relied .upon is of that character which is deemed by the law adverse. An essential ingredient of adverse possession is a daim of right hostile to the true owner. So, if one enter upon the land of another, without any color of title, or claim of right, the possession thus ac- quired is not adverse, but the possessor will be deemed by the law to hold under the legal owner. In such a case no length of possession will make it adverse. Jones v. Hockman, supra; Bradstreet v. Hunt- ington, 5 Pet. 402 (440) ; Ricard v. Williams, 7 Wheat. 59; Comegys V. Corley, 3 Watts, 280; Gray v. McCreary, 4 Yates, 494; Brandt ex dem. Walton v. Ogden, 1 Johns. 156; Jackson ex dem. Bonnell et at. V. Sharp, 9 Id. 163. II. The quo animo in which the possession was taken and held is a test of its adverse character. The inquiry, therefore, as to the in- tention of the possessor, is essential in order to determine the nature of his possession, and, before his possession may be pronounced ad- verse, it must be found that he intended to hold in hostility to the true owner. McNamee v. Moreland, 26 Iowa, 97. See also Brad- street V. Huntington, supra, and the other authorities last cited. III. The facts relied upon to constitute adverse possession must be strictly proved ; they cannot be presumed. The law presumes that the possession of land is always under the regular title, and will not permit this presumption to be overcome by another presumption. There can be no such thing as conflicting legal presumptions. McNamee v. Moreland, supra; Fele v. Doe, 1 Blackf. 129. IV. The defendant's grantor, when he entered upon the land in dispute, did not claim title thereto. He claimed title to lot 1, but to no part of lot 260. It is very plain that, under the authorities above cited, the claim of right must be as broad as the possession. De- fendant's claim was limited to lot 1 — his possession covered that lot, and a part of lot 260; he took possession of more land than he claimed. But, is the fact, that the belief of defendant and her grantor, that lot 1 extended to the line of their possession, equivalent in law to a claim of title to the land in dispute? The term belief implies an assent of the mind to the alleged fact, and is not supported by knowledge. One may believe a proposition without making it known, or without possessing any knowledge upon the subject. It is, or may be, a passive condition of the mind, prompting in neither action nor declaration. The term claim implies an active assertion of right, — the demand for its recognition. This assertion and de- mand need not be made in words; the party may speak by his acts SECT, ij GRUBE V. WELLS 65 in their support, as by the payment of taxes, erection of improve- ments, etc. One may believe that he has a right to land Avithout asserting or demanding it. But it is said the right is asserted by the possession. This cannot be admitted, for the possession, to be sup- ported by the law, must be under claim of right. The argument is this : The lawful possession is proved by the claim of right, which, in turn, is established by the possession. The reasoning is within a very narrow circle. But there is another objection to it upon a prin- ciple above stated. The adverse character of the possession must be strictly proved, and, in the argument just noticed, it is inferred from an alleged condition of mind. As we have seen, the intention, the quo animo of the possessor, must be shown. This cannot be done by mere proof of possession : it must be shown to exist under certain conditions, to be qualified by the existence of a claim of right ; for the adjective characteristics of a thing cannot be shown by proof of the mere existence of the thing itself. In this case we have the possession admitted. As we have seen, it must be shown to be adverse under a claim of right. Simple belief on the part of defendant of her right to the land, we have pointed out, is not equivalent to, nor will it supply the place of, the claim required by the law, and, as we have shown, possession will not estab- lish the quo animo. There is, then, in the case, absolutely no evi- dence of the adverse holding of defendant. The conclusion we have announced is supported by decisions of this court, and by other authority. McXame v. Moreland, 26 Iowa, 97; Brown v, Cockerell, 33 xVla. 45; Hamilton v. Wright, 30 Iowa, 480; Burnell, Adm'r of Russell, v. Maloney, 39 Vt. 579; St. Louis University v. McCune, 28 Mo. 481 ; Riley v. Griffin et al., 16 Ga. 141 ; Brown v. Gay, 3 Greenl. 126; Ross v. Gould, 5 Id. 204; Lincoln v. Edgecomh, 31 Me. 345; Gilchrist v. McLaughlin, 7 Ired. 310. Y. The following cases are cited by defendant's counsel, in sup- port of views contrary to the doctrines we have just announced. We will briefly notice them. Burdich v. Ueivly, 23 Iowa, 511, is not in conflict with the fore- going views. In that case, there was a claim of right distinctly shown, if not an agreement of the parties to the effect, that the dis- puted line was in fact the true boundary of the lands. In Close v. Samm, 27 Iowa, 503, the right in question related to the flowing back of water upon the mill of plaintiff, by a dam built by the other party. That right was sustained upon evidence of prescription, and it was claimed to the extent exercised by defeii(hiiit. Here was an express claim of right. In illustration of t\\v ruling made by the court, Mr. Justice Cole supposes the case of conflicting claims to land adjacent to a boundary line. But the case he puts expressly supposes the party availing himself of the Statute of Limitation to claim the lands, and to set up an adverse possession under color of title. In 66 GRUBE V. WELLS [CHAP. II Brown v. Bridges, 31 Iowa, 138, the right of plaintiff to recover is based upon prescription, and it clearly appears that he had claimed and held possession of the land in dispute, and upon that ground set up his prescriptive title. In Stuyvesant v. Tomkins, 9 Johns, 61, the point decided is, that trespass, quaere clausum fregit, will not lie on behalf of one not in possession of lands. Whatever appears in that case, relating to the point under consideration, was said arguendo. In Lawrence v. Hunt, 9 Watts, 64, the claim under the Statute was based upoii an actual survey, and in Brown v. Mc- Kenney, Id. 565, it is lield that the party setting up adverse posses- sion is protected therein, as it is expressly said by the court, under a claim of title to tbe land. In these authorities, there is to be found nothing in conflict with tbe conclusions we have reached in this case. In our opinion, the ruling of the District Court upon the facts found is correct. Affirmed} 1 The doctrine of this case seems to have had its origin in Brown v. Gay, 3 Greenl. (Me.) 126, and Gilchrist v. McLaughlin, 7 Ired. (N. C.) 310. It has prevailed to a considerable extent in the United States. Brown v. Cockerell, 33 Ala. 38; Harris v. Byrd, 202 Ala. 78; Winn v. Abeles, 35 Kan. 85; St. Louis University v. McCunc, 28 Mo. 481 ; Ouzts v. McKnight, 114 S. C. 303. Its force has, however, been diminished by later authorities. In Taylor v. Fomhy, 11& Ala. 621, 626, the court said: " It is also well settled, that if one of two adjacent land owners extend his fence so as to embrace within his in- closure lands belonging to his neighbor, in ignorance of the true boundary line between them, and with no intention of claiming such extended area, but intending to claim adversely only to the real and true boundary line, wherever it may be, such possession will not be ad\'erse or hostile to the true owner. But if the fence is believed to be the true line, and the claim of ownership is to the fence, even though the established division is erroneous, a different rule will apply, as has been held; for, in such case, there is a clear intention to claim to the fence as the true line, and the possession does not originate in an admitted possibility of a mi.stake.'' To the same effect are Miller v. Mills Coimty, 111 Iowa 654, 658; Edwards v. Fleming, 83 Ivan. 653; Richard- son V. Watts, 94 Me. 476, 487; Shotwell v. Gordon, 121 Mo. 482, 484; Schau- buch V. Dillemuth, 108 Va. 86, 89; Skanzi v. Novak, 84 Wash. 38. 45. See Evert V. Turner, 184 Iowa 1253; Bradstreet v. Winter, 109 Atl. (Me.) 482; 2 Tiffany, Real Prop., 2d ed., §505. The following cases are contrary to Grube v. Wells: Wagner v. Meinzer, 177 Pac. (Cal.) 293; French v. Pearce, 8 Conn. 439; Daily v. Boudreau, 231 III. 228; Cassidy v. Lenahan, 294 111. 503; Carpenter v. Rose, 186 Ky. 686; Crowder v. Neal, 100 Miss. 730; Orig v. Morrison, 142 Wis. 243. See Hein- richs V. Polking, 215 S. W. (Ky.) 179; Erck v. Church and notes, post, p. 86. The decisions are collected in 33 L. R. A. n. s. 923 note. <5 Note — Adverse possession, in order to be the foundation of title, must be actual, open, exclusive and continuous. See Ward v. Cochran, 150 U. S. 597, 606-610. As to what constitutes actual and open possession, see Baugher V. Boley, 63 Fla. 75 (statute) ; St. Louis A. & T. R. R. Co. v. Nugent, 152 111. 119; Jackson v. Schoonmakcr, 2 Johns. (N. Y.) 230; Bensdorff v. Uihlein, 132 Tenn. 193; and compare cases on constructive possession, post, p. 67 et seq. As to the burden of proof that the possession is adverse, see 2 Tiff. Real Prop., 2d ed., § 503, where many cases are collected. See New York, Laws SECT, l] CONVEYANCE OF LANDS OF ANOTHER 67 1920 Chap. 925., Art. 2, § 35, ante p. 30. The following states have similar legislation: California, Code Civ. Proc, (1915). §321; Florida, Comp. Laws (1914), §1720; Idaho, Comp. Stats. (1919), §6599; Montana, Rev. Code (1907), §6435; North Dakota, Comp. Laws (1913), §7365; South Dakota, Comp. Laws (1913), Code Civ. Proc, §46; Utah. Comp. Laws (1917), §6451; Wisconsin, Stats. (1915), §4210. Compare, Michigan, Comp. Laws (1915), §12314; Nevada, Rev. Laws (1912), §4955. As to exclusive possesson, see Tracy v. N. & W. R. R. Co., 39 Conn. 382; Bloodsworth v. Murray, 114 Atl. (Md.) 575; Bailey v. Carleton, 12 N. H. 9, post, p. 71; Weeks v. Dominy, 161 App. Div. 414, 212 N. Y. 563. As to continuous possession, see Kentucky Coal Co. v. Wilder, 165 Ky. 293; Britt v. Houser, 171 Ky. 494; Meek v. Davis, 189 Ky. 64; Nelson v. Johnson, 189 Ky. 815, 827, 828; Stewart v. Small, 119 Me. 269; Bowen v. Guild, 130 Mass. 121; Dean v. Goddard, 55 Minn. 290; Ovig v. Morrison, 142 Wis. 243; and compare cases on tacking, post, p. 80 ct scq. As to whether by adverse possession a public right of way, which has been dedicated, or taken by a municipality, can be extinguished, the cases are m conflict. 3 Dillon, Mun. Corp., 5th cd., §§ 1187-1194; 2 Tiffany, Real Prop.. 2d ed., § 417, p. 1536. NOTE CONVEY.ANCE BY THE OWNER OF LANDS WHICH .\RE IN THE ADN'BRSE POS- SESSION OF ANOTHER. " The Statute of 32 Hen. VIIL c. 9 (1540) enacted that no person should buy or obtain ' any pretended rights or titles ' to any lanils, tenements or hereditaments, upon pain that the buyer and seller should each forfeit the value. This Statute not only imposes a penalty but avoids the convej'ance. Doe d. Williams v. Evans, 1 C. B. 717 (1845). It is said to have been in affirmance of the common law. lb. See Hathorne v. Haines, 1 Greenl. 238, 247 (Me. 1821). [Faton v. RabiHson. 81 Conn. 547. 551. 552; Powers V. Vaii Dyke, 27 Okla. 27.] , " In many States b.y statute this rule has now been abolislied and the con- veyance by the owner is good even against the person in possession. See Stimson. Am. St. Law, § 1401 ; Ma.ss. Rev. Laws, c. 127, § 6. And in some States, the same result has been reached without the aid of statutes. Crcsson V. Miller, 2 Watts, 272 (Pa. 1834) ; Hall v. Ashby, 9 Ohio. 96 (1839) : Poyas v. Wilkins, 12 Rich. 420 (So. Car. 1860); Bentinck v. Franklin, 38 Tex. 458 (1873). [Booth V. Young, 149 Ga. 276; Gurule v. Duran, 20 N. M. 348.] "As there is no seisin of easements the rule against champertous convey- ances has no application to them. See Randall v. Chase, 133 Mass. 210. 214 (1882); Corning v. Troy Iron Factory, 40 N. Y. 191, 204 (1869). And it has been held not to apply to a conveyance to a purchaser at a sale on execu- tion or otherwise by order of court. See McGill v. Doe d. McCall, 9 Ind. 306 (1857). It was further held, in Webb v. Thompson, 23 Ind. 428 (1864), that the deed by a purchaser at an execution sale was good, although the land con- tinued in the adverse possession of the judgment debtor. But the contrary w-as held in Bernstein v. Humes, 60 Ala. 582 (1877). See also Viohtt v. Violett, 2 Dana, 323 (Ky. 1834). [Etchen v. Cheney, 235 F. R. 104; Vary v. Sensabaugh, 156 Ala. 459; Hicks v. Burge. claims, to make an entry or distress or bring an action to recover such land or rent, shall be deemed to have first accrued, either at the determination of such tenancy or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined; provided always, that no mortgagor or cestui que triifit shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee." 82 FANNING V. WILLCOX [CHAP. II tiff showed only one year's possession, and yet Lord Tcntcirden said, " That does not signify; tliere is ample proof; the plaintiff is in pos- session, and you come and turn him out: you must show your title." See also Doe dem. Humphrey v. Martin, Car. & Marsh. 32. These cases would have warranted us in saying that the lessor of the plaintiff had established her case, if she had shown nothing but her own possession for thirteen yeajs. The ground, however, of so say- ing, would not be that possession alone is sufficient in ejectment (as it is in trespass) to maintain the action, but that such possession is prima facie evidence of title, and, no other interest appearing in proof, evidence of seisin in fee. Here, however, the lessor of the plaintiff did more, for she proved the possession of her husband be- fore her for eighteen years, which was prima facie evidence of his seisin in fee; and, as he died in possession and left children, it was prima facie evidence of the title of his heir, against which the lessor , of the plaintiff's possession for thirteen years could not prevail ; and therefore she has by her own showing proved the title to be in another, of which the defendant is entitled to take advantage. On this ground we think that the rule for a nonsuit must be made absolute. Rule absolute for a nonsuits FANNING V. WILLCOX 3 Day (Conn.) 258. 1808. Motion for a new trial. This was an action of ejectment, to which the general issue was pleaded. On the trial, the plaintiff claimed the land in question as devisee under the will of Thomas Fanning, deceased, to whom it had been appraised and set off under an execution against Joseph Noyes. It was admitted that the plaintiff had a good and legal title, unless barred by the Statute of Limitations. The defendants were in possession as tenants under Nathaniel Palmer. It appeared that after the levy of Thomas Fanning's exe- cution," Noyes continued in possession until within fifteen years of the time of bringing this action, but had gained no title. Nathaniel Palmer, having no title, then commenced an action of ejectment against Noyes for the land. Noyes suffered judgment to pass against 1 See Peek v. Chever, 8 All. (Mass.) 89; Dixon v. Gayjcre, 17 Beav. 421, 430; Asher v. Whitlock, L. R. 1 Q. B. 1 ; Willis v. Earl Howe, [18931 2 Ch. 545. 553; Perry v. Clissold, [19071 A. C. 73; Groom v. Blake, 6 Ir. Com. L. Rep. 400, 410; Professor J. B. Ames in 3 Harv. L Rev. 323^325. - It is not expressly stated in the motion that the levy of Fanning's execu- tion took place, and the adverse possession of Noyes connnenced, more than fifteen years before the plaintiff brought his action; but this was the fact, and the case proceeds entirely upon the supposition of its existence. — Rep. SECT, l] FANNING V. WILLCOX 83 him by default, and abandoned the land: upon which Palmer took possession, without the levy of an execution. The court, in their charge to the jury, instructed them that if they should find that the plaintiff's record title was complete, and the defendants, or those under whom they claim, had no title of record, yet the law was so that if any other person had been in pos- session of the land, claiming adversely to the plaintiff's title, and the possession of such person, together with the possession of the de- fendants, and those under whom they claim, amounted to a period of more than fifteen years previous to the commencement of this action, during which the plaintiff was ousted of the possession, he was not entitled to recover. The jury found for the defendants; and the plaintiff moved for a new trial, which motion was reserved for the opinion of the nine judges. By the Cotirt.^ Actual ouster and adverse possession of any lands, tenements, or hereditaments, for fifeeen years after the title, or cause of action accrued, and before suit brought, bars the plaintiff of his right of entry thereafter, whether the ouster and adverse pos- session be by the same person or persons, for the whole term of fifteen years, or by different persons for different periods, making <^ fifteen years in the whole; provided the disseisin and adverse pos- session have been continued and uninterrupted; and provided that the plaintiff does not come within any of the exceptions mentioned in the provisos of the Statute, extending the term of time, in which entry may be made. New trial not to he granted.^ 1 Brainerd and Griswold, JJ., having been concerned as counsel in this cause, did not sit. - '' The only other question presented by the case is, whether the statute of limitation was a bar to the plaintiff's reco\-ery. It appears that there was a continual adverse possession for more than twenty years, but that Hugh Shannon, who first took the possession of the land in controversy, before he had remained in possession twenty years surrendered the possession to the defendants or those under whom they held, in pursuance of a decree entered upon an award giving them the land in virtue of an adverse claim, and that they had not had the land in possession twenty j-ears prior to the commence- ment of this suit. " This circumstance, it is urged on the part of the plaintiff, prevents the statute from operating as a bar to his recovery. But we cannot perceive any principle upon which it can have such an effect. According to the literal import of the statute, the plaintiff could only enter upon the land within twenty years after his right of entry accrued, and, consequently, an ad- verse possession for that length of time will toll his right. Nor can it, in the reason and nature of the thing, produce any difference, whether the pos- session be held uniformly under one title or at different times under different titles, provided the claim of title be always adverse to that of the plaintiff, nor whether the possession be held by the same or a succession of individuals, o provided the possession be a continued and uninterrupted one." — Slinnnon v. Kinny, 1 A. K. Marsh. (Ky.) 3, 4 (but see Winn v. Wilhite, 5 J. J. Mar.^h. (Ky.) 521, .524; Miniard v. Napier, 167 Ky. 208). And see Davis v. Mc- Arthur, 78 N. C. 357 (changed by statute. North Carolina. Stats. (1919), § 430; May v. Mjg. Co., 164 N.C. 262, 265); Scales v. Cuckrill, 3 Head 84 OVERFIELD V. CHRISTIE [CHAP. II OVERFIELD v. CHRISTIE 7 S. & R. (Pa.) 173. 1821. Error to the Court of Common Pleas of Luzerne County, in an ejectment brought by Jacob Overfield against Jerusha Christie and Hugh Osterhout, in which there^was a verdict and judgment for the defendants.^ (Tenn.) 432; Kipp v. Sy7iod of Toronto, 33 U. C. Q. B. 220; Robinson v. Osborne, 27 Ont. L. Rep. 248; 8 Dom. L. Rep. 1014 (but see Ryerse v. Teeter, 44 U. C. Q. B. 8; Simmons v. Shipman, 15 Ont. Rep. 301; Hamel v. Ross, 3 Dom. L. Rep. 860) ; Salter v. Clarke, 4 N. S. W. 280; 10 Col. L. Rev. 761; 3 Harv. L. Rev. 323-326. Compare Riopelle v. Gilman, 23 Mich. 33. " No privity of estate was shown, and if that was necessary, the evidence was improperly admitted. But it was not nece.ssary. It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years, whether by one of more persons. This was settled in Fanning v. Willcox, 3 Day, 258. Doubtless the possessions must be connected and continuous, so that the possession of the true owner shall not constructively intervene between them ; but such continuity and connection may be effected by any conveyance, agreement, or understanding which has for its object a transfer of the rights of the possessor, or of his possession, and is accompanied by a transfer of possession in fact. Such an agreement to sell and transfer of possession as were set up in this case, if proved, were sufficient." Smith v. Chapin, 31 Conn. 530, 531. See Ferriday v. Grosvenor, 86 Conn. 698. In Sawyer v. Kendall, 10 (IJush. (Mass.) 241, the court said: "The. general rules of law respecting successive disseisins are well settled. To make a dis- seisin effectual to give title under it to a second disseisor, it must appear that the latter holds the estate under the first disseisor, so that the disseisin of one may be connected with that of the other. Separate successive disseisins do not aid one another, where several persons successively enter on land as disseisors, without any conveyance from one to another, or any privity of estate between them, other than that derived from the mere possession of the estate; their several consecutive possessions cannot be tacked, so as to make a continuity of disseisin, of sufficient length of time to bar the true owners of their right of entry. To sustain separate successive disseisins as constituting a continuous possession, and conferring a title upon the last disseisor, there must have been a privity of estate between the several successive disseisors. To create such privity,- there must have g existed, as between the different disseisors, in regard to the estate of which a title by disseisin is claimed, some such relation as that of ancestor and heir, grantor and grantee, or devisor and devisee. In such cases, the title acquired b}' disseisin passes by descent, deed, or devise. But if there is no such privity, upon the determination of the possession of each disseisor, the seisin of the true owner revives and is revested, and a new distinct dis- seisin is made by each successive chsseisor." Doswell v. De La Lanza, 20 How. (U. S.) 29, 32; Robinson v. Allison, 124 Ala. 325; San Francisco v. Fulde, 37 Cal. 349; Ely v. Brown, 183 111. 575; Doe v. Brown, 4 Ind. 143; Schrack v. Zubler, 34 Pa. 38; Jackson v. Leonard, 9 Cow. (N. Y.) 653; Ryan V. Schwartz, 94 Wis. 403, accord. See Georgia Annot. Code (1914), §§ 4176- 4178; Sherin v. Brackett, 36 Minn. 152; Vermont Marble Co. v. Eastman, 91 Vt. 425, 452; Illi7iois Steel Co. v. Budzisz, 106 Wis. 499, 507, 514; Illinois Steel Co. V. Paczocha, 139 Wis. 23, 28, 35. ^ The statement of facts is abbreviated and the opinion on one point only is given. SECT. l] OVERFIELD V. CHRISTIE 85 The plaintiff gave in evidence an ai^plication in the name of Samuel Lefevre, dated the 3d April, 1769, on which a survey -was made 4th October, 1773, and a patent issued to Joseph Wharton, 17th August, 1784. On the 7th June, 1813, Joseph Wharton con- veyed to the plaintiff, in consideration of 122 dollars, ."^0 cents. The defendants claimed under Nathan Abbott, who made a settle- ment and improvement in 1788. Abbott sold his improvement to Lazarus Ellis, who sold to Peter Osterhout, deceased, his son-in-law, the husband of Jerusha Christie (daughter of p]llis), one of the de- fendants, and father of the other defendant, Hugh Osterhout. The defendants rested their defence on the Act of Limitations. . . . The judge's charge, which was excepted to by the plaintiff, was placed on the record, and the objections to it were now reduced to three points. . . . 3. That he ought to have charged that Nathan Abbott, having entered without title, was a trespasser, and so were all those avIio came after him; and consequently no continuity of possession, which is essential where one defends himself solely by the Act of Limitations. The opinion of the Court was delivered by TiLGHMAN, C. J. ... 3. As to privity between trespassers. If one enters and commits a trespass, and then goes off, and another comes after him, and commits a trespass, I grant that there is no privity between these persons, nor can the possession be said to be transferred and continued from one to the other. ^ But I cannot see that the present case falls within that principle. Here has been a possession of four or five and twenty years, transferred in the two first instances for a valuable consideration, and finally transferred from father to son. Each new possessor has been substantially connected with his predecessor. The law pays great regard to a possession transmitted from father to son; so great, indeed, that where there was a disseisin and a descent to the heir of the disseisor, the entry of the disseisee was at common law taken away. Lord Mansfield has told us that of seisin and disseisin very little was known in his time hut the name. In Pennsylvania we certainly have not been in the habit of going deeply into that antiquated subject; nor is it material to inquire whether Abbott or those who came after him acquired a seisin according to the strict import of the term. Our law permits all persons, whether in or out of seisin or possession, to transfer their claim, such as it is, good or bad, by deed or will. And I have no manner of doubt that one who enters as a trespasser, clears land, builds a house, and lives in it, acquires something which he may transfer to another; and if the possession of the two added together, amounts to twenty-one years, and was adverse to him who had the legal title, the Act of Limitations will be a bar to his re- ^ Pittsburgh Ry. v. Pcct, 152 Pa. 488; Agency Co. v. Short, 13 An. Cas. 793. 86 ERCK V. CHURCH [CHAP. II covery. It would be extraordinary indeed if a possession acquired without force could not be transferred, when we hold that j^'^ior possessio)i alone is r/ood tille to recover in ejectment against all but him who shows better title. But when possession has been con- tinued for a number of years, and has passed from hand to hand for valuable consideration, or by descent from parent to child, it has something respectable in it. The argument of the plaintiff leads plainly to this consequence, — that the Act of Limitations can never take effect in favor of a defective title, unless one man lives twenty- one years; because every one who enters under a defective title is a trespasser, and being a trespasser, he cannot, according to the doc- trine contended for, transfer his possession to another, or even transmit it by descent to his heir, so as to make a connected continued possession. If that be the case, there is little use in the Act of Limitations. But I am decidedly of opinion that the law is not so, and that it was well laid down in the charge of the Court of Common Pleas. The judgment should therefore be affirmed. Judgment affirmed.^ ERCK V. CHURCH 87 Tenn. 575. 1889. Appeal from Chancei-y Court of Shelby County. B. M. Estes, Ch. Ejectment bill. Decree for complainant. Defendant appealed. , J. M. Dickinson, Sp. J. Complainant filed this bill September 25, 1886, to recover possession of a parcel of land in Memphis, front- ing three feet and ten inches on Lauderdale Street, and five feet seven and one-half inches on Humphries Street, being three hundred and nine feet in length. 1 See Ryan v. Bank, 219 S. W. (Mo.) 652; Haynes v. Boardman, 119 Mass. 414; Streeter v. Fredrickson, 11 N. D. 300; North Dakota, Comp. Laws (1913), § 5471. Widow in possession of land held adversely by her husband. Robinson v. Allison, 124 Ala. 325; Johnson v. Johnson, 106 Ark. 9; Sawyer v. Kendall, 10 Cush. (Mass.) 241; Jacobs v. WiUia?ns, 173 N. C. 276; Doe v. Barnard, ante, p. 80. Compare Peoples Water Co. v. Anderson, 170 Cal. 683; Tuggle v. Southern Ry. Co., 140 Tenn. 275. Tacking of possessions of decedent and personal representative. Cannon V. Prude, 181 Ala. 629; Vanderbilt v. Chapman, 172 N. C. 809; Ea.st Tennessee Iron Co. v. Ferguson, 35 S. W. (Tenn.) 900. Tacking of oral transfers. Oliver v. Williams, 163 Ala. 376; Wilhelm v. Herron, 178 N. W. (Mich.) 769; McNeely v. Lartgan, 22 Ohio St. 32; Vance v. Wood, 22 Oreg. 77; Cunningham, v. Patton, 6 Pa. 355, 357; Illinois Steel Co. V. Paczocha. 139 Wis. 23; see Erck v. Church. In South Carolina it has been held that an heir can tack to his possession that of his ancestor. Williams v. McAliley, Chev. (S. C.) 200; Epperson v. Stansill, 64 S. C. 485; Goings v. Mitchell, 96 S. E. (S. C.) 612; but a pur- chaser cannot tack the possession of his vendor. King v. Smith, Rice Law (S. C.) 10. SECT, l] ERCK V. CHURCH 87 It is admitted that coinpiaiuaiil has a good legal title, and that he has a right to recover, unless it has heen defeated by the operation of the statute of limitations. Mackall sold and deeded to Warner a lot contiguous to the parcel in dispute, fronting fifty feet on Lauderdale Street, and the same width on Humphries Street, bounded by parallel lines. In taking possession Warner did not measure his fifty feet. Mackall, at the time Warner purchased, pointed to a group of trees, and designated one as being on the south boundary line of the lot sold. Warner fenced in his purchase, and placed his south fence along the line indicated, believing that he was inclosing the parcel purchased of Mackall and no more. He, in fact, inclosed with his fifty foot lot the parcel in dispute, and from that time continued to hold as his own the entire tract included by his fences. Warner sold to defendant Church by deed, following the descrip- tion in the deed from Mackall to him, which embraced the fifty feet, but not the parcel in dispute, and Church took possession of the whole tract as inclosed by Warner, and held it as his own. It is admitted that Church has not held seven years, but that Warner and Church together have held more than seven years. Complainant contends that the statute of limitation has not operated for these reasons : First. That Warner did not intend to inclose any ground but the fifty feet he purchased; that he took possession of and held the dis- puted parcel by mistake, and that, therefore, the statute was not set in motion because an essential requisite, namely, an intention to hold adversely, did not exist. Second. That the periods of possession by Warner and Church cannot be connected, because they are both wrong-doers, and there is no privity between them.^ A leading case in this State, and one frequently cited by jndges and text-writers, is Marr v. Oilliam, 1 Cold. 491. The point, actually decided, was that the possession of one who had entered lawfully upon land by deed as a tenant in common, but who subse- quently began to hold adversely to the other tenants in common, might be connected with that of his heirs so as to make out the period of the statute, because there is a privity of estate between ancestor and heir, but that the wife of such first possessor could not connect her possession with his because there was no such privity between husband and wife. Judge Wright (page 504) thus states the law, " Separate successive disseizins do not aid one another, where s(>v(M'al persons successiv(dy ent(>r on land as disseizors, with- 1 The opinion of the court on the first question is oniittod. It followed French v. Pearce, 8 Conn. 49. Only a portion of the opinion on the second que.stion is given. 88 ERCK V. CHURCH [CHAP. II out any conveyance from one to another, or any privity of estate between them, other than that derived from the mere possession of the estate. Their several consecutive possessions cannot be tacked, so as to make a continuity of disseizins of sufficient length of time to bar the true ovi^ners of their right of entry." On pages 509-10 Judge Wright discusses the cases of Wallace v. Hanniim, 1 Hum. 443 ; Nory-is v. Ellis, 7 Hum. 463, and Crutinger v. Catron, 10 Hum. 24, and criticises as dicta the statements in those opinions, that a trespasser by mere possession, without color of titles, acquires no right that is either alienable or descendible. As pre- viously stated, Judge Nicholson, in Baker v. Hale, 6 Baxt. 48, says: " It is settled by repeated adjudications in this State that the succes- sive possessions of trespassers cannot be so connected as to make up the bar of seven years under the second section of the Act of 1819, and for the reason that there can be no privity between wrong-doers." In this case he reviews Marr v. Gilliam. On page 51 he apparently approves the statement of the law as made by Judge Wright, to the effect that successive possessions of trespassers may be tacked together where the successive possessors hold the land as their own, and there is a privity of estate between them. On the next page, however, he says that the possessory right of a naked trespasser is not descendible or alienable. This is clearly in conflict with the position of Judge Wright. In neither case, however, was the law, as stated, called for. Thus we have conflicting declarations of the law from eminent judges, but none of them are stamped with the authority of an ad- judged case. In Wait's Action and Defences the following is stated to be the law : " When there are several successive adverse occupants of real property, the last one may tack the possession of his predecessor to his so as to make a continuous adverse possession for the time re- quired by the statute, provided there is a privity of possession be- tween such occupants; and in case of an actual adverse possession, such privity arises from a parol bargain and sale of the possession of the premises followed by delivery thereof, as well as by a formal con- veyance from one occupant to the other." Vol. 6, p. 455, and the cases there cited. In Weber v. Anderson, 73 111. 439, the facts presented a case in- volving almost every essential element embodied in the case under consideration. The instruction in the lower court to the jury was that the rights acquired by the first possessor could not be trans- mitted except by deed. The case was reversed, the superior court saying that there was " parol proof " showing the Plank Eoad Com- pany transferred "their possessions over to him" (the defendant). It was held that parol proof was sufficient to show the transfer of possession, and that it could be tacked to the subsequent holding. It does not clearly appear in that case whether or not there was an actual transfer of a possessory right by parol. The language of the SECT. l] ERCK V. CHURCH 89 Court would admit of this construction. If, however, the possession merely passed as in the case under consideration, sub silentio, Avith- out any knowledge by either party that there was such a possessory right, and that it was being transferred, then the case is an extreme one. The opposite conclusion was reached under a similar state of facts by the Supreme Court of Wisconsin in Graeven v. Devies, 31 K W. E. 914. In Fanning v. Wilcox, 3 Day (Conn.), 258, the rule (as quoted by Wood on Limitations, p. 582, note) is thus stated ■} " Doubtless the possessions must be connected and continuous, so that the posses- sion of the true owner shall not constructively intervene between them; but such continuity and connection may be effected by any conveyance, agreement, or understanding which has for its object a transfer of the rights of the possessor, or of his possession, and is accompanied by a transfer of possession in fact." This is in substantial accord with the doctrine as stated by Judge Wright in Marr v. Gilliam, which is approved by us. There must be a privity of estate connecting the successive possessions, and a transfer of the possessory right, by grant, inheritance, devise, or con- tract, verbal or written. The mere fact of successive possessions appearing, and nothing more, will not constitute such privity. If the contrary rule were adopted, then any independent trespasser entering upon land simultaneously with the abandonment of it by a prior trespasser could connect the two possessions, without any pretence of a privity of estate, by merely showing that there had been no actual hiatus between the possessions. The deed to Church does not embrace the land in dispute, and there is no evidence that Warner undertook to transfer to Church his possessory right to it. On the contrary, it is shown that he was ignorant of having such right. There is no privity of estate between them in respect to this land. Warner both acquired and aban- doned his possessory right in ignorance of its existence. The entry by Church was a new disseizin, and a new period of limitation began. The decree of the Chancellor is affirmed.^ 1 This quotation is not from Fanning v. Willcox, but from Smith v. Chapin, 31 Conn. 530, 531, ante, p. 84 note. ^ Mcsscr V. Ilibernia Sor., 149 Cal. 122; Evans v. Welch, 19 Colo. 355, accord. Compare Sheldon v. Michigan Central R. R. Co., 161 Mich. 503; Gildea v. Warren, 173 Mich. 28; Lake Shore Ry.Co. v. Sterling, 1S9 Mich. 366; Robertson v. Boylon, 181 N. W. (Mich.) 989; Moore v. Ilelrcy. 235 Mo. 443; Rembert v. Edmondson. 99 Tcnn. 15; Fergusuii v. Prince, 136 Tenn. 543, 554-558. Contra, St. Louis S. W. Ry. Co. v. Midkey, 100 Ark. 71; Rich v. Xaff- ziger, 255 III. 98; Wishart v. McKnight. 178 Mass. 356; Crowder v. Xeal. 100 Mi.ss. 730; Belotti v. Bickhardt, 228 X. Y. 296; Xaher v. Farmer. 60 Wash. 600; CUthero v. Fenner, 122 Wi.^. 3.56. Spo Vikhui C„. v. Crawford. 84 Kan. 203; 29 Ilarv. L. Rev. 790. 90 GKLSWULD V. liUTLEU [CHAP. 11 F. Disabilities. GRISWOLD V. BUTLER 3 Conn. 227. 1820. Bristol, J.^ . . . Let it, then, be assumed, that Hezekiah Griswold was disseised in 1793; that he was then non compos mentis, and so continued till his death in 1802; that Mercy Weller, on whom the descent was cast, was also non compos mentis, and so continued until her death in 1817; and that this action was brought, by Elijah Gris- wold, her heir, within five years after her death ; the plaintiff is still barred of a recovery. To raise this question we must assume the fact, that Hezekiah Griswold was disseised in 1792; and that the possession of the defendant and others, since that time, has been ad- verse to the title of Hezekiah Griswold and his heirs; for if the pos- session has not been adverse, but held under Hezekiah Griswold, without any claim or title in the occupants, no possession, however long, will acquire a title. It has been urged, that the disability of Hezekiah Griswold and his heir was one continued disability ; that the circumstance of Hezekiah Griswold's death makes no difference; but the case stands on the same ground as if Hezekiah Griswold had lived until 1817, when his heir would have an undoubted right of entry for five years ; that the case does not compare with one where there occur two different dis- abilities in the same person, which cannot be tacked; but that this is the farthest to which any adjudged case has extended; that the statute was intended to punish the negligent owner, by a forfeiture of his title^ and it would be an extremely harsh construction to apply the statute in a case, where, during the whole time of the disseisin, the true owners had never been competent for a single moment, to assert their title. In reply to this reasoning, let it be remarked, that the question depends on the true meaning of the statute; and the best mode of ascertaining that meaning, is, to examine the language made use of, and derive the meaning from the language, instead of arbitrarily fixing that meaning, in the first place, and then endeavoring so to construe the language as to make it conform to the standard pre- viously set up. It is unfortunate that certain phraseology, in fre- quent use on this subject, was ever adopted ; such as, " that the stat- ute never operates, where there has been no laches," that " it never runs against persons who are under a disability;" &c., &c. This language, without conveying any definite ideas, had nearly frittered away a most useful statute, until Judge Smith, in the case of Bush 1 The statement of facts is omitted, and only a portion of the opinion of one of the judges is given. SECT. l] GRISWOLD V. BUTLER . 91 V. Bradley, 4 Day, 298, instead of adopting this legal jargon, re- called our attention to the language of the act, and endeavored to ascertain its meaning, not by attributing certain motives to the legis- lature, and then twisting the language so as to make it conform, but by learning the meaning and intention of the legislature from the language made use of; which is the only safe mode of detorniining what the legislature intended. The accuracy of this language is also denied, by Judge Swift, in the case of Biince & al. v. Wolcoti, 2 Conn. Rep. 27. " Xor," says he " is the proposition correct, that the statute ncA^er begins to run, against a person under a disability. Suppose that the party claiming is an infant, when the title accrues; if fifteen years run during his infancy, he has but five years, after he comes of full age, to make his entry. This clearly shows, that the statute operates against him during the disability. Indeed, the statute always begins to run against a man, the moment he is dis- seised, whether he is under a disability, or not." We may now take it for granted, in conformity to the language of the statute, and the unanimous opinion of the court of errors, in the case of Bunce & al. v. Wolcoii, that the statute began to run, the moment Hezekiah Griswold was disseised, whether under dis- ability, or not; and more than fifteen years having elapsed since that disseisin, the rights of his heirs are lost, unless those rights are saved by the proviso : for it is too clear to admit of argument, that, had the statute contained no prorifio, the interest of all persons whether under disability, or not, would be destroyed, by an adverse possession of fifteen years. Docs the proviso, then, save the right of the present plaintiff, and permit him to assert it, at any time, Avithin five years, not from the death of Hezekiah Griswold, to whom the right of entry first ac- crued, but from the death of Mercy Weller ? If the present plaintiff can enter within five years, after her death, if he should be under a disability during his life, his heijs will have the same right to enter w'ithin five years from liis death; and so different successive disabil- ities might be extended to an indefinite period. Such was not the intention of the legislature. The saving of the statute relates solely , to disabilities existing at the time when the right of entry first accrued. Bush the question whether, in such case, the presumption arising from the length of pos- session is a presumption of law, or one of fact, and all the cases on the subject have been industriously brought to our attention in the argument of this case. The counsel for the plaintiff say that this presumption of a grant from such long possession is a presumption of fact, to be found by a jury from such possession, unless rebutted, and that therefore any evidence which tends to show that no such grant was nuule, or could have been made, is admissible, and should be submitted to the jury. If it were true that such was the real ground upon which these rights are sustained, the view of the counsel would be unanswerable. But the counsel themselves do not claim that this grnni wliich is presumed is anything but mere fiction. The true view of the subject is well stated by Wilde, J., in CooVidge v. Learned, 8 Pick. 504. He 134 TRACY V. ATHERTON [CHAP. II says : " It has long been settled, that the undisturbed enjoyment of an incorporeal right aflFecting the lands of another for twenty years, the possession being adverse and unrebntted, imposes on the jury a duty to presume a grant, and in all cases juries are so instructed by the court. Not, however, because either the court or jury believe the presumed grant to have been actually made, but because public policy and convenience require that long-continued possession should not be disturbed." It is said in many of the cases that this length of possession is only evidence to be submitted to the jury. If by this is meant, that where it is conceded or proved that there has been an uninterrupted posses- sion under claim of right for the requisite time, and this is not en- countered by any evidence to rebut the legal effect of it, that it is a proper question to be submitted to the jury to say whether this gives a right, or not, it is not in our opinion correct. If there be any conflict of evidence as to the length, or character of the case, or any evidence proper to rebut the acquiring the right, it then becomes proper to submit it to the jury. But where it stands solely upon the conceded or proved possession under claim of right for the requisite time, it is never submitted to a jury to find the right established or not, according to their judgments. And whether it is more proper for the court to tell the jury that it is their duty from this to presume a grant, or to tell the jury that from this the law presumes a grant, is mere idle speculation. In fact, and in sub- stance, it is a verdict directed by the court, as a matter of law. And if it were submitted to the jury, and they were to return a verdict against the right, no court would ever accept the verdict. Mr. Washburn, who reviews all the decisions on the question whether the presumption to be drawn from possession or use of an easement for the required time, is one of law, or one of fact, and who gives the weight of his opinion in favor of its being a presumption of fact for the jury, after all, says, " It may, therefore, be stated as a general proposition of law, that if there has been an uninter- rupted user and enjoyment of an easement, a stream of water, for instance, in a particular way, for more than twenty-one, or twenty, or such other period of years as answers to the local period of limi- tation, it affords conclusive presumption of right in the party who shall have enjoyed it, provided such use and enjoyment be not by authority of law, or by or under some agreement between the owner of the inheritance and the party who shall have enjoyed it." Wash, on Eas. &c. 70. In the case of Townsend v. Dowtier, 32 Yt. 183, Aldis, J., in giving the judgment of the court, says : " When from long posses- sion, with or without auxiliary circumstances, a grant is presumed as matter of law, and without regard to the fact whether such a grant was really made or not, then it may with the strictest propriety be said that the law presumes a grant. In such a case, under the prac- SECT. II ] TRACY V. ATHERTON 135 tice in this State, it would be the duty of the court to direct a verdict." He then proceeds to speak of the class of cases where lapse of time and long possession is relied on with other circumstances, as evi- dence to establish that a grant has been made in fact. The opinion then proceeds : " We do not understand that there is still a third class of cases in which, although the grant is not presumed by the court as pure matter of law, and is not found by the jury as a fact, still the court may direct the jury to presume a grant, and thus by the intervention of the jury, but without the exercise of their judg- ment upon the evidence, establish the grant as if it were a mere in- ference of the law. Language may be found in some books and de- cisions favoring such a view, but the doctrine is clearly against the whole current of English and American decisions, and tends to con- found the proper and separate jurisdictions of court and jury. This erroneous view, we think, has arisen from the want of precision in language, when treating of presumptive evidence and the grants proved by or presumed from it." We think therefore, that in substance the presumption arising from such long-continued possession, unrebutted, is a presumption of law, and that it is conclusive evidence, or sufficient evidence to -warrant the court in holding that it confers a right on the possessor to the extent of his use. But it does not in our opinion go very far in determining the question in this case, whether the presumption arising from the length of possession is one of law, or one of fact, for wdiichever it may be it is liable to be rebutted in various ways. It may be shown to have originated or continued by leave of the owaier; that it has not been under a claim of right, or not continuous; or that it has been interrupted by the owner of the land, and whenever any evi- dence is introduced tending to invalidate the right claimed, on any of these grounds, that the case becomes a proper one to submit to the jury. But all authorities concur in saying that this doctrine has been adopted and rests upon its analogy to the Statute of Limitations applicable to lands, and both parties in the present case agree that the effect of the plaintiff's disability upon the right claimed by the defendants, is precisely the same that it would be upon lands of the plaintiff holden adversely by the defendants, and their predecessors in title, during the same period. And in our judgment rights to ease- ments acquired by long possession ought to stand on the same ground as rights by possession in lands. The real principle underlying the right, is the same precisely on which the Statute of Limitations stands. In the first place, it is })resunied that one man would not quietly submit to have anotlier use and ctijoy his property for so great a length of time unl(>ss tlicrc existed some good ro;isoji for his doing so, and that after allowing it for so long, lie sIkiuM not ciill 136 TRACY V. ATHERTON [CHAP. II upon liim to show liis right or title, when it may not be in his power to do so; and in the second place, it is a rule of policy, adopted in support of long and uninterrupted possession. It is important too in another view, that the doctrine of the law in the two cases should harmonize, that the people may not be misled and perplexed by hav- ing the law different ways upon subjects which in reason and upon principle should be the same. The requisites of a possession' by which an easement is acquired, as generally laid down in the books are, that it should be adverse, under a claim of right, exclusive, continuous and uninterrupted. These are exactly the requisites of a possession of lands to give a title under the Statute of Limitations against the proprietor. But it is sometimes said that the possession must be with the acquiescence of the owner. But this is the same as saying that the possession must be uninter- rupted. If the owner does not interrupt the possession in any way, he does acquiesce as far as is needful in order to make the possession effectual against him. In the case of lands which are wholly in the possession of a disseisor, in order to make an effectual interruption of the possession, the owner must actually make an entry on the land for that purpose. In Powell v. Bragg, 8 Gray, 441, it Avas decided, that where the owner of the land, over which another had laid an aqueduct, and claimed to have acquired a right by possession upon the land, forbid the owner of the aqueduct from entering upon the land to use the aqueduct, this was such an interruption of the use as prevented the acquirement of an easement right. The owner of the land, being already in possession, could not make an entry to stop the effect of the user, or possession, and his act on the land, of for- bidding the other to enter and use the aqueduct, was all he could do to prevent him unless he resorted to force, and ordinarily the law does not require one to use force to assert his rights. In the case of an entry on land to interrupt the acquiring a right by a disseisoi*, the owner is not required to use force in order to give legal effect to his entry. It is not necessary to determine whether such an interruption as was shown in Powell v. Bragg would be sufficient to stop the effect of a previous use toward acquiring a right by prescription, but the de- cision is founded apparently on a sound distinction between an actual adverse possession of lands, and a mere easement upon* lands, of which the owner himself is in the actual possession. Under the English Statute of Limitations, passed as early as the reign of James I., it was uniformly held that disabilities, in order to prevent the operation of the Statute, must exist at the time the right first accrued. This Statute of James has been the foundation of similar Statutes in this country generally, and though its ]>recise language has hardly ever been adopted, still, the same construction has been generally fol- lowed by America 11 courts. The only instance of so wide a departure SECT. II ] TRACY V. ATHERTON 137 from the English Statute as to induce a different construction in this respect is in the State of Kentucky. But the saving in the Kentucky Statute is in favor of those " who are or shall be infants, (fcc, at the time when the said right or title accrues or comes to them." The counsel for the plaintiff claim that our Statute of Limitations of 1797 varies so widely from the English as to require a different con- struction in this respect, and one similar to that given by the Ken- tucky courts to theirs. The Act of 1797 limits rights of entry into lands, and actions for the recovery of lands, to fifteen years next after the right shall accrue to the plaintiff or those under whom he claims. Sect. 10 provides, generally, that it shall not apply to infants, etc., but they shall be allowed to sue within fifteen years after the removal of the disability. It does not say, in terms, that the rights of those disabled Avhen the right first accrued shall be saved, as does the English Statute. !N"either does it, in terms, save the rights of those Avho shall be in- fants, &c., when the right accrues or comes to them. But the question cannot be regarded as an open one in this State. In McFarland, Adm'r of Burdick, v. Stone, 17 Vt. 174, the iiues- tion came before the court. The action was ejectment to recover lands of which Burdick died seised. The defendant had been in pos- session more than fifteen years before suit brought claiming title. The plaintiff claimed to avoid the Statute on the ground of the dis- ability of the heirs. Two of the heirs were infants at the decease of their father, and fifteen years had not elapsed after they became of age before the suit was brought, and the plaintiff was allowed to re- cover for their shares of the land. Two other female heirs were in- fants when the defendant entered upon the land, and before they became of age were married, and so continued till suit brought, so that they had been constantly under disability during the Avhole period of defendant's possession. The Statute had not run in favor of defendant when the disability of coverture intervened, but more than fifteen years had run after they became of age, before suit brought. It was decided that their rights were bound by the Statute, and the court held that our Statute should have the same construction as the English, and that no disabilities could be regarded as within the saving, except such as existed at the time the right first accrued. If the plaintiff's claim is well founded, tlmt the intervening of a dis- ability, before the Statute has run, arrests it, and entitles the party to fifteen years longer after the disability is removed to sue, then the plaintiff should liave recovered the shares of the two female heirs. They could not be in a worse condition nft(M- the disability of coverture arose, in consequence of liaving licni all the ])n'vious time under the disability of infancy, than tlu-y would liavr been, if before tluf coverture they had been Icgiilly coinixtcnt to sue, or the right had been in some one else who was (•(niipctciit. Tlic real point 138 TRACY V. ATHERTON [CHAP. H in the case was the same made here, viz. : Must disabilities, in order to be within the saving of the Statute, exist when the right first accrues ? — and was fully decided. It was stated in argument by Judge Bennett, that the Statute of 1797 was always understood by the courts, and men of eminence in the legal profession in the State, to be diflferent from the Statute of James in this respect. Judge Bennett's long experience at the bar and upon the bench, entitles his statement to great consideration, but the strictest search has not enabled us to find any trace of such an opinion in our reports, and the case of McFarland v. Stone, where the contrary was decided, was tried by Judge Bennett, and his ruling was affirmed in the Supreme Court. So far as we have any knowledge of professional tradition on the subject, the general understanding has been that wlien the Statute of Limitations once began to run, no subsequent intervening disability would arrest it. Our present Statute of Limitations is made to conform exactly to the English, by confining the saving of disabilities to such as exist at the time the cause of action accrues, but no one has ever supposed that the law in this respect was changed from wdiat it was under the Act of 1797. Indeed the change of phraseology has been made by revisers, and for the purpose of making the language more exactly express the meaning as judicially determined. The decisions in relation to the Statute applying to personal actions are all in the same direction. HiU v. Jackson, 12 Vt. We are satisfied therefore, that by the settled construction of the Statute of Limitations, a disability in order to prevent the operation of the Statute must exist when the right first accrues, and if the analogy of the Statute in this respect is to be followed, it must govern this case. And we see no reason why it should not be in this particular, if in any, as it stands upon the same reason and is governed by the same policy. The cases that have been cited bearing upon this particular point are contradictory, and no uniform principle seems to have been fol- lowed in deciding them. Melvln v. Whiting, 13 Pick. 134, is cited by the plaintiff. It was an action for disturbing the plaintiff's fishery. The plaintiff claimed a right to the fishing by long-con- tinued use or prescrijDtion. It appeared that after plaintiff's pos- session commenced, the title i;nder Avhich defendant claimed, became vested in some infant heirs. It was held that the period of minority should be deducted, but as the plaintiff's possession, before the commencement, and after the expiration of the disabilit}^ added together, made the requisite length, according to the Statute of Massachusetts, the plaintiff's right was held to be established, and he was allowed to recover. The case seems to have been very little examined by court or counsel, no reasons are given, or authorities cited. Watlmis V. Peel- et ah, 13 X. H. 360, is also cited by plaintiff. SECT. II ] TRACY V. ATHERTON 139 This was a case in chancery, involving in controversy the right to draw water by aqueduct from a spring. In this case also, during the use from Avhich the right was claimed, the title had descended to minor heirs, and it was held that this interrupted the prescription. Judge Parker, who gave the opinion, says that such a right by long possession rests upon the presumption of a lost grant, and that it would be absurd to presume a grant, where it was clear that no such grant could have existed. It would almost seem that the distinction between the class of cases where the question is whether there has been a grant or deed in fact, and those where this presumption is a mere legal fiction, was not perfectly clear to so eminent a judge as Judge Parker. Lamb v. Crosland, 4 Rich. S. C. iy^^Q, is also cited by Prof. Wash- burn, as supporting the same doctrine, but I have not seen the case. On the other hand the case of Reimer v. Stuber, 20 Penn. St. 458, where a right of way was claimed by prescription, and sought to be avoided on the ground of disability, the use began during the minority of the owner of the land, and who before she became of age was married, it was held that the time began to run when she became of age, notwithstanding the subsequent disability of coverture. If the case stood really upon the ground of a presumed grant, and it could not be presumed because the owner was under a disability, and could not make a grant, it must extend through both disabilities. The case can stand only upon the analogy of the Statute. In that view it is clearly correct. Mihane v. Fafricl-, 1 Jones JST. C. 23, was a claim by the plaintiff that he had acquired a right of Avay by use. After the use began the owner of the servient estate became insane. It was decided that as the disability did not exist at the time of the commencement of the plaintiff's adverse use, it did not prevent the use ripening into a right. The court say, " Such being the law as to the Statute of Limitations, it follows it must be so, in regard to prescriptions also." The language of Judge Story in Tyler v. Wilhinson, 4 Mason, 402, in this respect goes even beyond Avliat we are disposed to hold, indeed disabilities coming clearly within the saving of the Statute, would not avoid a prescription, according to the most general interpretation of his language. But doubtless it was not intended by him to bear so broad a meaning. Prof. Washburn in his treatise on Klasements ■ says, " Perhaps the difference in the provisions of the Statutes of Limitations in the different States, nuiy account for the discrepancy in the decided cases." But they can hardly be reconciled on such a basis. In both Massachusetts and New Hampshire, it is fully set- tled, that under their Statutes of Limitations no disability avoids their operation, unless it exist at the time the right first accrues. The decisions in those States must have been iikuIc in entire disregard of the analogy of the Statute in this respect, and we think they were made in giving undue importance to the fictitious theory of a lost grant. 140 TRACY V. ATHERTON [CHAP. II The eases opposed to them are in our jtulgment foniulcd upon niucli sounder legal reason, and we are disposed to follow the Penn- sylvania and North (Carolina eases, rather than those nearer home. This disposes of the principal questions made in the case. The plaintiff claims there was error in the charge in another respect; that if they found the right of way claimed by the defendants fully established by the evidence as to the length and character of the use, any subsequent application for, and obtaining license to use it from the plaintiff, would not divest them of the right. Such sub- sequent application for license would be very powerful evidence to show that the previous use was not under a claim of right, so as to give a title, but no claim is made but that as evidence, it was given all the force it was entitled to. But the plaintiff claims that it should have the effect of an es- toppel, and prevent the defendants from setting up the right of way they had obtained by the previous use. The claim is put upon the same ground as that of a tenancy, where if a tenant has been ad- mitted into possession by the landlord, he is estopped to deny his title. But we fail to see the analogy, or any good ground upon which an estoppel could be founded. The charge proceeded on the basis that the jury had already found the right of way completely established. The right of the defendants then was the same as if they actually held a conveyance of the right from the plaintiff. In such case it would seem singular that a parol admission of the plaintiff's right, or whether the defendants' want of right, should operate really as a reconveyance of a vested legal right in realty, which cannot be conveyed by parol. We think it can be regarded merely as an admission to be weighed against the defendants and as such the defendants had the full benefit of it. The only remaining point is the instructions as to the Penniman letter. The letter appears to have been introduced merely as an admission by Penniman of the title of the plaintiff, and his own want of title to any way over the plaintiff's land, by his asking permission to cross. If the letter referred to the way in question, it would be important evidence against his right. If it had reference to another place, and not to this, then it was no admission at all against his right to use this way. If the jury found that the letter referred to the way in question, it does not appear that the plaintiff did not have all the advantage he was entitled to from it, and if they found it referred to another place, and not this, then it was entitled to no force at all as an admission. It does not appear to us material how Mrs. Tracy understood the letter, considered in this light. If it was claimed that by her misunderstanding of the letter, and suppo- sition that it referred to this way, she had conducted differently, and had allowed Penniman to use this way, supposing he was acting under the license obtained in answer to the letter, or omitted to put a stop to his use of it, supposing he acknowledged her right, or SECT. II J CARMODY V. MULROONEY 141 that of her son, then her misunderstanding of the letter might be important as explaining her own action. But nothing of this kind appears in the case. The letter was used to show that Penniman asked leave of Mrs. Tracy to use this way, thus acknowledging her right, and his own want of right. If he was speaking in the letter of another place, it was no acknowledgment at all as to this way, even if Mrs. Tracy by mistake supposed it was. We find no error, and the judgment is affirmed.^ CARMODY V. MULROOXEY 87 Wis. 552. 1894. Appeal from the Circuit Court for Grant County. The action was brought to establish an easement of right of way in the plaintiff over the defendant's lands. The plaintiff claimed a right of way over the defendant's lands by adverse user for more than twenty years. The defendant admitted the user, but denied that it was adverse. There is no conflict in the evidence on the ques- tion. The defendant and his grantor for more than twenty years maintained a private Avay from the residence upon the premises out to the highway, upon their own lands. The plaintiff and the defendant's grantor are relatives, — brothers-in-law. Their lands adjoined. The plaintiff used the same way out to the highway for more than twenty years. Both worked upon the construction and repair of the w^ay. The line of way was changed, in places, several times. JNTothing was ever said by either to the other as to the right of the plaintiff to use the way. There was neither express permis- sion nor express claim of right. There was a finding and judgment for the plaintiff, from which the defendant appeals. Newman, J. One may acquire an easement of right of way over the lands of another by adverse user for a period of twenty years. To have this result, such user must be adverse to the owner of the land, under claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the estate over which the easement is claimed. "Washb. Easem. (4th ed.), 150, par. 26. Such a right can never grow out of a mere tolerated or permis- sive use. Id. 152. Such adverse user, when continued for twenty years, constitutes a perfect title, as conclusive as a deed or grant. Godd. Easem. (Bennett's ed.), 136. The burden of proving the user to have been adverse is upon the party claiming the easement. Washb. Easem. 150, par. 36a; 2 Greenl. Ev. § 539; Aynerican Co. V. Bradford, 27 Cal. 360-367. Whether the use has been adverse is 1 Ballard v. Demmon, 156 Mass. 449; Wallace v. Fletcher. 30 N. H. 434, accord. The cases are collected in 2 Tiffany, Real Prop., 2d ed., §§ 514, 515. See Edson v. Mumell, 10 All. (Mass.) 557. 142 CARMODY V. MULROONEY [CHAP. II a question for the jury, or for the court when the trial is by the court. 19 Am. & Eng. Ency. of Law, note on page 14, and cases there cited. When it is shown that there has been the use of an ease- ment for twenty years, unexplained, it will be presumed to have been under a claim of right and adverse, and will be sufficient to establish a right by prescription, and to authorize the presumption of a grant, unless contradicted or explained. In such a case the owner of the land has the burden of proving that the use of the ease- ment was under some license, indulgence, or special contract incon- sistent with the claim of right by the other party. Washb. Easem. 156, par. 31, and cases cited in note 5; Garrett v. Jackson, 20 Pa. St. 331. The finding and judgment of the circuit court are sup- ported by this presumption, and so are in accord with the weight of evidence. By the Court. — The judgment of the circuit court is affirmed.^ 1 Polly v. McCall, 37 Ala. 20, 31; Fleming v. Howard, 150 Cal. 28 (see Clarke v. Clarke, 133 Cal. 667, 670); Mitchell v. Bain, 142 Ind. 604; Stewart V. Brumley, 119 S. W. (Ky.) 798; Brookshire v. Heap, 186 Ky. 217; Barnes v. Haynes, 13 Gray (Mass.) 188; Novinger v. Shoop, 201 S. W. (Mo.) 64; Moll V. Hagerbaumcr, 98 Neb. 555; Smith v. Putnam, 62 N. H. 369; Ham- mond v. Zehner, 21 N. Y. 118 (compare American Co. v. A''. }'. El. Ry. Co., 129 N. Y. 252); Pavcij v. Vance, 56 Ohio St. 162; Steffy v. Carpenter, 37 Pa. 41; Slater v. Price, 96 S. C. 245; Muncy v. Updyke, 119 Va. 636; Hawkins v. Conner, 75 W. Va. 220; Roberts v. Ward, 85 W. Va. 474, accord. And see Rollins V. Blackden, 112 Me. 459. Contra, Shea v. Gavitt, 89 Conn. 359; C. B. & Q. R. R. Co. v. Ives, 202 111. 69; Bontz v. Stear, 285 111. 579. Compare Davidson v. Nnntz, 177 Ky. 50; Thompson v. Bowes, 115 Me. 6; Kilburn v. Adams, 7 Met. (Mass.) 33; Worrall v. Rhoads, 2 Wharton (Pa.) 427 (see Purdon's Dig. Stats. (1910), p. 5069); Hutto v. Tindall, 6 Rich. L. (S. C.) 396; O'Neil v. Blodgett, 53 Vt. 213; Walton v. Knight, 62 W. Va. 223. " Protests and mere denials of right are evidence that the right is in dispute, as distinguished from a contested right. If such protests and denials, unaccompanied by an act which in law amounts to a disturbance and is actionable as such, be permitted to put the right in abeyance, the policy of the law will be defeated, and prescriptive rights be placed upon the most imstable of foundations. Suppose an easement is enjoyed, say, for thirty years. If after such continuance of enjoyment the right may be overthrown by proofs of protests and mere denials of the right, uttered at some remote but serviceable time during that period, it is manifest that a right held by so uncertain a tenure will be of little value. If the easement has been inter- rupted by any act which places the owner of it in a position to sue and settle his right, if he chooses to postpone its vindication until witnesses are dead or the facts have faded from recollection, he has his own folly and supine- ness to which to lay the blame. But if by mere protests and denials by his adversary, his right might be defeated, he would be placed at an un- conscionable disadvantage. He could neither sue and establish his right, nor could he have the advantage usually derived from long enjoyment in quieting titles. Protests and remonstrances by the owTier of the servient tenement against the use of the easement, rather add to the strengh of the claim of a prescriptive right; for a holding m defiance of such expostulations is demon- strative proof that the enjoyment is under a claim of right, hostile and SECT. II ] CARMODY V. MULROONEY 143 adverse; and if they be not accompanied by acts aniovinting to a disturbance of the right in a legal sense, they arc no interrujjtions or obstructions or the enjoyment." — Per Depue, J., in Lfhigh Valley R. R. Co. v. McFarlan, 43 N. J. L. 605, 629-631. Connor v. Sullivan, 40 Conn. 26; Okcsun v. Patterson. 29 Pa. 22; Dcmuth v. Ai7iiveg, 90 Pa. 181; Junlan v. Lany, 22 So. Car. 159, accord. Contra, Chicago & N. W. R. R. Co. v. Hoag, 90 III. 339. Many authorities are collected in 2 Tiffany, Real Prop., 2d ed.. § 528. On interruption of user, see 2 Tiffany, Real Prop., 2d ed., § 527; Connecti- cut, Gen. Stats. (1918), §§ 6115-6118; Indiana, Annot. Stat«. (1914), §§ 6179- 6181; Iowa, Annot. Code (1897), §§ 3007-3008; Maine, Rev. States. (1916), c. 110, §§ 12-15; Massachasetts, Gen. Laws. (1920), c. 187; Rhode Island, Gen. Laws (1909), c. 256. §§ 6-7. As to the e.xtent of the right accjuired by prescription where the user has been under color of title, see Hoag v. Place, 93 Mich. 450, 459. As to whether actual knowledge by the owner of the servient tenement is necessary, see Ward V. Warren, 82 N. Y. 265; Ludlow v. Indian Orchard Co., 177 Mass. 61; Spencer v. Jennings, 115 Atl. (Vt.) 270. As to the exclusive user, see St. Cecilia Soc. v. Universal Car Co., 182 N. W. (Mich.) 161; Reid v. Garnett, 101 Va. 47. As to tacking, see Leonard v. Leonard, 7 All. (Mass.) 277. See 2 Tiffany, Real Prop., 2d ed., §§ 521, 522, 529. CHAPTER III THE FORM OF CONVEYANCES Note. — On Seisin and Conveyance, see 1 Gray, Cas. on Prop., 2d ed., Bk. Ill, c. 3, p. 348; Warren, Cas. on Prop., pp. 504-515; 524-547. The modes of conveying Real Property at common law are: (1) By Livery of Seisin; (2) By Deed; (3) By Parol, or by Parol and Entry; (4) By Record; (5) By Special Custom. The first three are dealt with in the refer- ences above, in the present chapter, and in chapter VI. CONVEYANCES BY RECORD. " A. Fines and Recoveries are very ancient collusive suits brought by the person to whom the land is to be conveyed against the per-son who is to convey it, and resulting in an acknowledgment that the land is the property of the complainant or demandant. " The clearest account of their mode of operation will be found in 2 Bl. Com. 348-364. They are dealt with more in detail in Smith's Real and Per- sonal Property (5th ed.), 955-1055. Cf. also Challis, Real Property, c. 27. The forms of fines and recoveries are given in the appendix to 2 Bl. Com. "Although fines and recoveries were most commonly used to bar estates tail, they were by no means confined to this. A fine, for instance, was the means ordinarily employed to pass a married woman's interest. "I. (1) A tenant in fee simple in possession could convey by fine or re- covery. Although the seisin was tortious, yet under the St. 4. Hen. VII. (1489) c. 24, after a fine with proclamations had been levied, the claims of all persons, not imder disability, were barred at the end of five years fiftef the fine, or, if their claims arose after the fine, then five years from the time ""hey arose. This was in effect substituting a period of five years only for the time required by the Statute of Limitations. This result was not worked by a fine without proclamations nor by a recovery. (2) A fine by one seised in remainder in fee passed his interest; so although a recovery could not properly be sufTered unless there was a tenant to the prcvcipe, that is, some one seised of an estate of freehold in possession, who would join in recoverv, yet if a recovery was suffered by a tenant in fee in remainder, without a proper tenant to the prcecipe, he was bound by estoppel. A fine with procla- mations under the St. Hen. VII., levied by one seised in fee in remainder or reversion, would, after five years, bar all interests (except the preceding estate which supported the remainder), although the particular estates and the remainders or reversion had been created by a tortious conveyance. Co. Lit. 298 a. "II. The Statute de Bonis, 13 Edw. I. (1285) c. 1, which is given in the 1st vol. of the Cases, p. 335, provided that an estate tail could not be barred by a fine. By Taltarum's Case, Y. B. 12 Edw. IV. 19 (1473), the validity of a common recovery to bar an estate tail was recognized. (1) By Sts. 4 Hen. VII. c. 24 (1489), and 32 Hen. VIII c. 36 (1540), a tenant in tail in possession by a fine levied with proclamations barred the heirs in tail of the tenant immediately, and, in five years after their respective rights accrued, all re- maindermen and reversioners and other persons except the Crow^n. A re- covery, properly suffered, barred immediately all persons except the Crown. (2) A tenant in tail in remainder could under the Statutes above cited, by a fine with proclamations and non-claim, bar the heirs in tail and outside per- sons, but not subsequent remaindermen or the reversioner. A tenant in tail 144 CHAP. Ill J CONVEYANCE BY SPECIAL CUSTOM 145 in remainder could, by a rcrovinj, Ikii- ilic subsequent estates, provided the immediate tenant of the frceiiold would join in the recovery; but if he did not join, then, for want of a good tenant to the proecipc, the recovery barred neither the issue in tail nor the remaindermen, nor reversioner. This was partially altered by St. 14 Geo. II. c. 20, § 1 (1740). " III. (1) A fiiie or recovery by a tenant for life in possession worked a for- feiture of his estate, and was no bar to vested estates in remainder or to the reversion, but it destroyed contingent remainders. Doe d. Dairies v. Gatacre, 5 Bing. N. C. 609 (1839). Under tlie Statute 4 Hen. VII. c. 24, however, a fine by tenant for life with proclamations and five years' non-claim barred all persons. (2) A fine or recovery by a tenant for life in remainder had no effect except to pass his interest; a fine by him with proclamations under the Statute did not bar any subsequent estates in remainder or reversion, but did probably bar, after the period of non-claim, all outside claims. " IV. If a fine was levied, with or without proclamations, or a recovery suffered by a tenant for years, he forfeited his estate, but no bar was created. If a tenant for years inade a tortious feoffment in fee. and the feofTee levied a fine with proclamations, then after the period of non-claim he got a good title. " V. If one who had no estate in the land, levied a fine or suffered a re- covery, it had no effect on third persons, but he was himself estopped, if he afterwards became entitled to the land. " The effect of a fine with proclamations under the Statute of 4 Hen. VII. and non-claim, was to pass the title, and not merely to bar the remedy. A fine of an incorporeal hereditament levied by a life tenant, passed no more than the cognizor's interest ; .yet such fine was a forfeiture, as it was in case of a corporeal hereditament. Lit., § 618. " The fine spoken of in this note is the ordinary fine sur cognizance de droit, come ceo que il ad de son done; the fines sur cognizance de droit tantum and sur concessit had more limited effects. "By the St. 3 & 4 Wm. IV, c. 74, § 2 (1833), fines and recoveries were abolished. " Fines and recoveries are generally done away with or are obsolete in the United States. " B. Public Grants. These are sometimes made by Act of the Legislature, sometimes bv the Crown, or other executive power. "See 2 BI. Com. 344-348; 3 Wash. R. P., book iii, c. 3, § 1. CONVEYANCE BY SPECIAL CUSTOM. " On the mode of alienating copyholds, .see 1 Gray, Cas. on Prop. (2d ed.) p. 364; 2 Bl. Com. 365. " The peculiar tenure known as tenant right is copyhold, although title is passed by deed and admittance, instead of surrender and admittance. See Scriven, Copyholds (6th ed.), 14-17. But see Bingham v. Woodgate, 1 Ru.ss. 6 Myl. 32 (1829). " Limitations of copyholds are construed in the same manner as limitations of freeholds and the Rule in Shelley's Case applies to copyholds. Scriv. 95, 96. "The Statute Dr Donis did not applj' to copyholds; and therefore if. in a manor, a copyhold can be entailed (as is sometimes the case), it must be by virtue of a special cu.stom; but where there is no custom to entail, a grant of copyhold land to A. and the heirs of his body will generally give him a fee simple conditional. Challis, Real Prop., 3d ed., 300. Where an entail of a copyhold cannot be barred by the custom in any other way, it is barred by a siuTender. Scriv. 40-46. A copyholder may lease land for a year, by the general custom of the realm, without his lord's license. Scriv. 192. Admit- tance is compelled by manda^nus or bill in equity. Scriv. 366-368, 376." 3 Gray, Cas. on Prop., 2d ed., pp. 191, 192. 146 CONVEYANCES TO STRANGERS [CHAP. Ill SECTION I. CONVEYANCES TO STKANGERS. Note. — At common law estates of freehold in land could be created by livery of seisin. Estates of less than freehold could be created by parol agreement and entry. Present estates of freehold could be transferred by livery of seisin. Present estates of less than freehold could be transferred by parol agreement and entry. Reversions and vested remainders could be transferred by deed. See 1 Gray, Cas. on Prop., 2d ed., pp. 341, 342, 348- 355, 357-363. Warren, Cas. on Prop., pp. 510-512. Conveyances by livery of seisin might have a tortious operation; convey- ances b}^ deed or parol and entiy were innocent. Some sections from Little- ton are given below to bring out more clearly the distinction between tortious and innocent conveyances. Rights in land, such as easements and profits, could be created and trans- ferred by deed, but not by parol, even though they were for years only. 2 BI. Com. 317; Somerset v. Fogwell, 5 B. & C. 875; Bird v. Higginson, 2 A. & E. 696. The Statute of Uses, 27 Hen. VIII, c. 10 (1536), made possible new methods of conveyancing. A use, both before and after the Statute, could be raised for a pecuniaiy consideration, called a bargain and sale; or, after the Statute, by a covenant for a consideration of blood or marriage, called a covenant to stand seised. The use, or equitable interest, so raised was, by operation of the Statute, converted into a corresponding legal estate. See 1 Gray, Cas, on Prop., (2d ed.), pp. 368-416; Warren, Cas. on Prop., pp. 524-528. The Statute of Enrolments, 27 Hen. VIII, c. 16 (1536), required that all bargains and sales of estates of freehold should be enrolled. This statute has not been adopted as part of the law of this country. It is given in 1 Gray, Cas. on Prop., 2d ed., p. 382; and in Warren, Cas. on Prop., p. 525. The requirements of the Statute of Frands, 29 Car. II, c. 3, §§ 1-3 (1677), are given in full below. It was held in Jackson d. Gourh v. Wood, 12 Johns. (N. Y.) 73 (1815), that a bargain and sale of a freehold estate must be under seal. But see Kales, Estates and Future Interests, 2d ed., §§ 64, 456. The same result has been reached by statute in a number of states. As to statutoiy provisions regard- ing the use of seals, see Stimson, Am. Stat. Law., § 1564, and statutes post P- Lit. § 609. For if I let land to a man for term of his life, &c., and tlie tenant for life lettetli the same land to another for term of years, &c., and after my tenant for life grant the reversion to another in fee, and the tenant for years attorn, in this case the grantee hath in the freehold but an estate for term of the life of his grantor, &c., and I which am in the reversion of the fee simple may not enter hy force of this grant of the reversion made hy my tenant for life, for that by such grant my reversion is not discontinued, but always re- mains unto me, as it was before, notwithstanding such grant of the reversion made to the grantee, to him and to his heirs, &c., because nothing passed by force of such grant, but the estate which the grantor hath, &c. Lit. § 610. In the same manner is it, if tenant for term of life by his deed confirm the estate of his lessee for years, to have and to SECT. l] CONVEYANCES TO STRANGERS 147 hold to liim aud his heirs, or release to his lessee and his heirs, yet the lessee for years hath an estate but for term of the life of the tenant for life, &c. Lit. § 611. But otherwise it is when tenant fOr life maketh a feoffment in fee, for by such a feoffment the fee simple passeth. For tenant for years may make a feoffment in fee, and by his feoffment the fee simple shall pass, and yet he had at the time of the feoffment made but an estate for term of years, kc. Lit. § 613. Also, if tenant in tail by his deed grant to another all his estate which he hath in the tenements to him entailed, to have and to hold all his estate to the other, and to his heirs forever, and deliver to him seisin accordingly ; in this case the tenant to whom the alienation was made hath no other estate but for term of the life of tenant in tail. And so it may be well proved that tenant in tail cannot grant nor alien, nor make any rightful estate of freehold to another person, but foj" term of his own life only, &:c. Lit. § 615. Also, if land be let to a man for term of his life, the remainder to another in tail, if he in the remainder will grant his remainder to another in fee by his deed, and the tenant for life attorn, this is no discontinuance of the remainder. Lit. § 617. x\lso, if a man be tenant in tail of an advowson in gross, or of a common in gross, if he by his deed will grant the ad- vowson or common to another in fee, this is no discontinuance; for in such cases the grantees have no estate but for term of the life of tenant in tail that made the grant, &c. Lit. § 618. And note, that of such things as pass by way of grant, by deed made in the country, and without livery, there such grant maketh no discontinuance, as in the cases aforesaid, and in other like cases, &c. And albeit such things be granted in fee, by fine levied in the king's court, &c., yet this maketh not a discontinu- ance, &c. Lit. § 619. [Note, if I give land to another in tail, and he letteth the same land to another for term of years, and after the lessor granteth the reversion to another in fee, and the tenant for years at- torn to the grantee, and th(^ term expireth during the life of the tenant in tail, by which the grantee enter, and after the tenant in tail hath issue and die; in this ease this is no discontinuance, notwithstanding the grant be executed in the life of the tenant in tail, for that at the time of the lease made for years, no new fee simi:)le was reserved in the lessor, but the reversion remained to him in tail, as it Avas before the lease made.]^ Lit. § 620. But if the tenant in tail make a lease for term of the life of the lessee, &c., in this case the tenant in tail hath made a new reversion of the fee simple in him; because when he made the lease for life, &c., he discontiinicd the tail, (Src, by force of the same lease, and also he discontinued my reversion, (Src. And it behooveth that 1 Lord Coke says this is not in the original, but 3'ct is good law. 148 CONVEYANCES TO STRANGERS [CHAP, III tlic reversion of the fee simple be in some person in such case : and it cannot be in me which am the donor, inasmuch as my reversion is discontinued; ergo, the reversion of the fee ought to be in the tenant in tail, who discontinued my reversion by lease, &c. And if in this case the tenant in tail grant by his deed this reversion in fee to another, and the tenant for life attorn, &c., and after the tenant for life dieth, living the tenant in tail, and the grantee of the reversion enter, &c., in the life of the tenant in tail, then this is a discontinu- ance in fee; and if after the tenant in tail dieth, his issue may not enter, but is put to his writ of fonnedon. And the cause is, for that he which hath the grant of such reversion in fee simple, hath the seisin and execution of the same land and tenements, to have to him and to his heirs in his demesne as of fee, in the life of the tenant in tail. And this is by force of the grant of the said tenant in tail. Lit. § 622. But in this case, if tenant in tail that grants the re- version, &c., dieth, living the tenant for life, and after the tenant for life dieth, and after he to whom the reversion was granted enter, &c., then this is no discontinuance, but that the issue of the tenant in tail may well enter upon the grantee of the reversion; because the reversion which the grantee had, &c., was not executed, &c., in the life of the tenant in tail, &c. And so there is a great diversity when tenant in tail maketh a lease for years, and where he maketh a lease for life; for in the one case he hath a reversion in tail, and in the other case he hath a reversion in fee. Lit. § 623. For if land be given to a man and to his heirs males of his body engendered, who hath issue two sons, and the eldest son hath issue a daughter and dieth, and the tenant in tail maketh a lease for years and die, now the reversion descendeth to the younger son, for that the reversion was but in the tail, and the youngest son is heir male, &c. But if the tenant had made a lease for life, &;c., and after died, now the reversion descendeth to the daughter of the elder brother, for that the reversion is in the fee simple, and the daughter is heir general, &c. Lit. § 631. But where the tenant in tail maketh a lease for years or for life, the remainder to another in fee, and delivereth livery of seisin accordingly, this is a discontinuance in fee, for that the fee simple passeth by force of the livery of seisin, &c.^ 29 Car. II. c. 3, §§ 1-3. For prevention of many fraudulent practices, wdiich are commonly endeavored to be upheld by perjury and subornation of perjury; (2) be it enacted by the King's most ex- 1 "An Act of 8 & 9 Victoria, chapter 106, section 4, abolished all tortious operation of jeoffmcnts. In this country the common-law doctrine of dw- seizin and tortious conveyance was in force to some extent in the colonies and States on the Atlantic seaboard, but the tortious effect of such convey- ances has been abolished directl.y by statute, or ceased because the convers- ance by livery has itself fallen into disuse." Kales, Estates and Future In- terests, 2d ed., § 46. SECT. l] CONVEYANCES TO STRANGERS 149 celleut majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and the Commons, in this present Parlia- ment assembled, and by the authority of the same. That from and after the four and twentieth day of June, which shall be in the year of our Lord one thousand six hundred seventy and seven, all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect; any consideration for making any such parol leases or estates, or any former law or usage, to the contrary notwithstanding. II. Except nevertheless all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts at the least of the full improved value of the thing demised, III. And moreover, That no leases, estates, or interests, either of freehold, or terms of years, or any uncertain interest, not being copyhold or customary interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall at any time after the said four and twentieth day of June be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and opera- tion of law. 150 RELEASES [CHAP. Ill SECTION 11. KELEASES. Lit. § 444. Releases are in divers manners, viz., releases of all the .right which a man hath in lands or tenements, and releases of actions personals and reals, and other things. Releases of all the right which men have in lands and tenements, &c., are commonly made in this form, or of this effect : — Lit. § 445. Know all men by these presents, that I, A. of B., have remised, released, and altogether from me and my heirs quit- claimed (me A. de B. remisisse, relaxasse, et oinnino de me et hceredi- hus me'is quletum clamasse) : or thus, for me and my heirs quit- claimed to C. of D. all the right, title, and claim (totum jus, titulum, et clameum) which I have, or by any means may have, of and in one messuage with the appurtenances in F., &c. And it is to be under- stood, that these words, remisisse et quietum clamasse, are of the same effect as these words, 7'elaxasse. Lit. § 447. Also, in releases of all the right which a man hath in certain lands, &c., it behooveth him to whom the release is made in any case, that he hath the freehold in the lands in deed, or in law, at the time of the release made, &c. For in every case where he to whom the release is made hath the freehold in deed, or in law, at the time of the release, &c., there the release is good. Lit. § 449. Also, in some cases of releases of all the right, albeit that he to whom the release is made hath nothing in the freehold in deed nor in law, yet the release is good enough. As if the disseisor letteth the land which he hath by disseisin to another for term of his life, saving the reversion to him, if the disseisee or his heir release to the disseisor all the right, &c., this release is good, because he to whom the release is made, had in laAv a reversion at the time of the release made. Lit. § 450. In the same manner it is, where a lease is made to a man for term of life, the remainder to another for term of another man's life, the remainder to the third in tail, the remainder to the fourth in fee, if a stranger which hath right to the land releaseth all his right to any of them in the remainder, such release is good, because every of them hath a remainder in deed vested in him. Lit. § 451. But if the tenant for term of life be disseised, and afterwards he that hath right (the possession being in the disseisor) releaseth to one of them to whom the remainder was made all his right, this release is void, because he had not a remainder in deed at the time of the release made, but only a right of a remainder. Lit. § 459. Also, if a man letteth to another his land for term of years, if the lessor release to the lessee all his right, &g., before SECT. II J RELEASES 151 that the lessee had eutered into the same laud by force of the same lease, such release is void, for that the lessee had not possession in the land at the time of the release made, but only a right to have the same land by force of the lease. But if the lessee enter into the land and hath possession of it by force of the said lease, then such release made to him by the feoffor, or by his heir, is sufficient to him by reason of the privity which by force of the lease is between them, &c. Lit. § 460. In the same manner it is, as it seemeth, where a lease is made to a man to hold of the lessor at his will, by force of which lease the lessee hath possession : if the lessor in this case make a release to the lessee of all his right, &c., this release is good enough for the privity which is between them; for it shall be in vain to make an estate by a livery of seisin to another, where he hath posses- sion of the same land by the lease of the same man before, kc. But the contrary is holden, Pasch. 2 E. 4, by all the justices.^ Lit. § 461. But where a man of his own head occupieth lands or tenements at the will of him which hath the freehold, and such occupier claimeth nothing but at will, &c., if he which hath the free- hold will release all his right to the occupier, &c., this release is void, because there is no privity between them by the lease made to the occupier, nor by other manner, &c. Lit. § 465. Also, releases according to the matter in fact, some- times have their effect by force to enlarge the state of him to whom the release is mJkle. As if I let certain land to one for term of years, by force whereof he is in possession, and after I release to him all the right which I have in the land without putting more words in the deed, and deliver to him the deed, then hath he an estate but for term of his life. And the reason is, for that when the reversion or remainder is in a man who will by his release enlarge the estate of the tenant, (Src, he shall have no greater estate, but in such manner and form as if such lessor were seised in fee, and by his deed will make an estate to one in a certain form, and deliver to him seisin by force of the same deed; if in such deed of feoffment there be not any word of inheritance, then he hath but an estate for life; and so it is in such releases made by those in the reversion or in the re- mainder. For if I let land to a man for term of his life, and after I release to him all my right without more saying in the release, his estate is not enlarged. But if I release to him and to his heirs, then 1 " By these two sections is to be observed a diversity between a tenant at will, and a tenant at sufferance; for a release to a tenant at will is good, because between them there is a possession with a privity; but a release to a tenant at sufferance is void, bcause he hath a possession without privity. As if lessee for years hold over his term. Sec, a release to him is void, for that there is no privity betwoen them; and so are the books that speak of this matter to be understood. " ' But the contrary is holden,' &c. This is of a new addition, and the book here cited ill understood, for it is to be understood of a tenant at suffer- ance." Co. Lit. 270 b. 152 RELEASES [CHAP. Ill Le hath a fee simple; and it" 1 release to him and to his heirs of his body begotten, then he hath a fee tail, &c. And so it behooveth to specify in the deed what estate he to whom the release is made shall have. Lit. § 466. Also, sometimes releases shall inure de mitter, and vest the right of him which makes the release to him to whom the release is made. As if a man be disseised, and he releaseth to his disseisor all his right, in this case the disseisor hath his right, so as where before his state was wrongful, now by this release it is made lawful and right. Lit. § 467. But here note, that when a man is seised in fee simple of any lands or tenements, and another will release to him all the right which he hath in the same tenements, he needeth not to speak of the heirs of him to whom the release is made, for that he hath a fee simple at the time of the release made. For if the re- lease was made to him for a day, or an hour, this shall be as strong to him in law as if he had released to him and his heirs. For when his right was once gone from him by his release without any condi- tion, &c., to him that hath the fee simple it is gone forever. Lit. § 468. But where a man hath a reversion in fee simple, or a remainder in fee simj)le, at the time of the release made, there if he will release to the tenant for years, or for life, or to the tenant in tail, he ought to determine the estate which he to whom the release is made shall have by force of the same release, for that such release shall inure to enlarge the estate of him to whom the release is made. Lit. § 469. But otherwise it is where a man hath but a right to the land, and hath nothing in the reversion nor in the remainder in deed. For if such a man release all his right to one which is tenant in the freehold, all his right is gone, albeit no mention be made of the heirs of him to whom the release is made. For if I let lands to one for term of his life, if I after release to him to enlarge his estate, it behooveth that I release to him and to his heirs of his body en- gendered, or to him and his heirs, or by these words, To have and to hold to him and to his heirs of his body engendered, or to the heirs male of his body engendered, or such like estates, or otherwise he hath no greater estate than he had before. Lit. § 470. But if my tenant for life letteth the same land over to another for term of the life of his lessee, the remainder to another in fee, now if I release to him to whom my tenant made a lease for term of life, I shall be barred forever, albeit that no mention be made of his heirs, for that at the time of the release made I had no rever- sion, but only a right to have the reversion. For by such a release, and the remainder over, which my tenant made in this case, my rever- sion was discontinued, &c., and this release shall inure to him in the remainder, to have advantage of it, as well as to the tenant for term of life. Lit. 5 471. For to this intent the tenant for term of life and he SECT. II ] RELEASES 153 in the remainder are as one tenant in law, and are as if one tenant were sole seised in his demesne as of fee at the time of such release made unto him, &e. Lit. § 479. But releases which inure by way of extinguishment against all persons, are where he to whom the release is made cannot have that which to him is released. As if there be lord and tenant, and the lord release to the tenant all the right which he hath in the seigniory, or all the right which he hath in the land, kc, this release goeth by wa^^ of extinguishment against all persons, because that the tenant cannot have service to receive of himself. Lit. § 480. In the same manner is it of a release made to the tenant of the land of a rent-charge or common of pasture, &c., be- cause the tenant cannot have that which to him is released, &c., so such releases shall inure by way of extinguishment in all ways.^ 1 A release inuring by way of nutter Uestate is " where two persons come in by the same feudal contract, as joint-tenants or coparceners, and one of them releases to the other the benefit of it. In releases which operate by this last mode, the releasee being supposed to be already seised of the inheritance by virtue of the former feudal contract, and the release only operating as a discharge from the right or pretension of another seised under the same contract, words of inheritance in the release are useless; but where the re- lease operates by enlargement, the releasee having no such previous inheri- tance, and fiefs being either for life or in fee, as they are originally granted, the release gives the estate to the releasee for his life only, unless it be ex- pressly made to him and his heirs." Butler's note to Co. Lit. 273 b. 154 SUltRENDEIiS [chap. Ill SECTIOAT III SURRENDERS Co. Lit. 337 b. " Surrender," sursum redditio, properly is a yielding up an estate for life or years to him that hath an immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them. Co. Lit. 338 a. A surrender properly taken is of two sorts, viz. a surrender in deed, or by express words, (whereof Littleton here putteth an example,) and a surrender in law wrought by consequent by operation of law. Littleton here putteth his case of a surrender of an estate in possession, for a right cannot be surrendered. And it is to be noted, that a surrender in law is in some cases of greater force than a surrender in deed. As if a man make a lease for years to begin at Michaelmas next, this future interest cannot be sur- rendered, because there is no reversion wherein it may drown; but by a surrender in law it may be drowned. As if the lessee before Michaelmas take a new lease for years either to begin presently, or at Michaelmas, this is a surrender in law of the former lease. Fortior et cequior est dispositio legis quam hominis. Also there is a surrender without deed, whereof Littleton putteth here an example of an estate for life of lands, which may be sur- rendered without deed, and without livery of seisin; because it is but a yielding, or a restoring of, the state again to him in the imme- diate reversion or remainder, which are always favored in law. And there is also a surrender by deed; and that is of things that lie in grant, whereof a particular estate cannot commence without deed, and by consequent the estate cannot be surrendered without deed. But in the example that Littleton here putteth, the estate might commence without deed, and therefore might be surrendered Avith- oiit deed. ' And albeit a particular estate be made of lands by deed, yet may it be surrendered without deed, in respect of the nature and quality of the thing demised, because the particular estate might have been made Avithout deed ; and so on the other side. If a man be tenant by the curtesy, or tenant in dower of an advowson, rent, or other thing that lies in grant; albeit there the estate begin without deed, yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendered without deed. And so if a lease for life be made of lands, the remainder for life ; albeit the remainder for life began without deed, yet because remainders and reversions, though they be of lands, are things that lie in grant, they cannot be surrendered without deed. See in my Reports plentiful matter of surrenders.^ 1 See St. 29 Car. II, c. 3. § 3 (1677) given ante. p. 148. Surrenders of estates for years are dealt with further in chapter VI. on Landlord and Tenant, po^^t, p. SECT. Ill] EXCHANGE 155 NOTE. Exchange. Lit. § 62. And in some case a man shall have by the grant of another a fee simple, fee tail, or freehold without livery of seisin. As if there be two men, and each of them is seised of one quantity of land in one county, and the one granteth his land to the other in exchange for the land which the other hath, and in like manner the other granteth his land to the first grantor in exchange for the land which the first grantor hath; in this case each may enter into the other's land, so put in exchange, without any livery of seisin; and such exchange made by parol of tenements within the same county without writing is good enough. Lit. § 63. And if the lands or tenements be in divers counties, viz., that which the one hath in one county, and that which the other hath in another county, there it behooveth to have a deed indented made between them of this exchange. Lit. § 64. And note, that in exchanges it behooveth, that the estates which both parties have in the lands so exchanged, be equal; for if the one willeth and grant that the other shall have his land in fee tail for the land which he hath of the grant of the other in fee simple, although that the other agree to this, yet this exchange is void, because the estates be not equal. Lit. § 65. In the same manner it is, where it is granted and agreed be- tween them, that the one shall have in the one land fee tail, and the other in the other land but for term of life; or if the one .shall have in the one land fee tail general, and the other in the other land fee tail especial, etc. So always it behooveth that in exchange the estates of both parties be equal, viz., if the one hath a fee simple in the one land, that the other shall have like estate in the other land; and if the one hath fee tail in the one land, the other ought to have the like estate in the other land, &c., and so of other estates. But it is nothing to charge of the equal value of the lands; for albeit that the land of the one be of a far greater value than the land of the other, this is nothing to the purpose, so as the estates made by the exchange lae equal. And so in an exchange there be two grants, for each party granteth his land to the other in exchange, &c. and in each of their grants mention shall be made of the exchange. Co. Lit. 5L b. To shut up this point, there be five things necessary to theV perfection of an exchange. L That the estates given be equal. 2. That this word (excambium, exchange) be used, which is so individually requisite, as it cannot be supplied by any other word, or described by any circumlocution: and herewith agreeth Littleton afterwards in this section. In the book of Domesday I find, " Hanc terram cambiavit Hugo Briccuino quod modo tenet comes Meriton, et ipsum scambium valet duplum." " Hugo de Belcamp pro escambio de Warres." 3. That there be an execution by entry or claim in the life of the parties, as hath been said. 4. That if it be of things that lie in grant, it must be by deed. 5. If the lands be in several counties, there ought to be a deed in- dented, or if the thing lie in grant, albeit they be in one county. Perk. § 265. If an exchange be made between me and T. K., viz., that after the feast of Christmas, he shall have my manor of Dale, in exchange for for his manor of Sale, ifec, it is a good exchange;, and each of us may enter into the other's manor, after Christmas, &c. See Statute of Frauds, St. 29 Car. II, c. 3 (1677), St. 8 ct 9 Vict., c. 106, § 3 (1845), and Wind.wr v. Cnllimon, 32 Orcg. 297. Partition. See Joint Ownership, post, p. Form of Conveyance. Lit. § 370. And for that such conditions are most commonly put and specified in deeds indented, somewhat shall be here 156 FORM OF CONVEYANCE [CHAP. Ill said (to thee, my son) of an indenture and of a deed poll concerning condi- tions. And it is to be understood, that if the indenture be bipartite, or tri- partite, or quadripartite, all the parts of the indenture are but one deed in law, and every part of the indenture is of as great force and effect us all the parts together be. Co. Lit. 229 a. " In deeds indented." Those are called by several names, as scriptum indentatum, carta indentata, ncriptura indcntata, indcntura, literce indeniatce. An indenture is a writing containing a conveyance, bar- gain, contract, covenants, or agreements between two or more, and is indented in the top or side answerable to another that likewise comprehendeth the self- same matter, and is called an indenture, for that it is so indented, and is called in Greek aiyypa(pov If a deed beginneth, hcec indcntura, etc., and in troth the parchment or paper is not indented, this is no indenture, because words cannot make it indented. But if the deed be actually indented, and there be no words of indenture in the deed, yet it is an indenture in law; for it may be an in- denture without words, but not by words without indenting. " In deeds indented." And here it is to be understood, that it ought to be in parchment or in paper. For if a writing be made upon a piece of wood, or upon a piece of linen, or in the bark of a tree, or on a stone, or the like, &c., and the same be sealed or delivered, yet it is no deed, for a deed must be written either in parchment or paper, as before is said, for the writing upon these is least subject to alteration or corruption. " If the indenture be bipartite, or tripartite, or quadripartite, &c." " Bi- partite " is, when there be two parts and two parties to the deed. " Tri- partite," when there are three parts and three parties ; and so of " quadripar- tite," " quinquepartite," &c. "And of a deed poll." A deed poll is that which is plain without any in- denting, so called because it is cut even, or polled. Every deed that is pleaded shall be intended to be a deed poll, unless it be alleged to be indented. "All the parts of the indenture are but one deed in law." If a man by deed indented make a gift in tail, and the donee dieth without issue, that part of the indenture which belonged to the donee doth now belong to the donor, for both parts do make but one deed in law. ''And every part of the indenture is of as great force, &c." This is mani- fest of itself, and is proved by the books aforesaid. It is to be observed, that if the feoffer, donor, or lessor seal the part of the indenture belonging to the feoffee, &c., the indenture is good, albeit the feoffee never sealeth the counterpart belonging to the feoffer, &c. See also Butler's note (138) ad loc. On the reason why deeds are required to be on paper or parchment, see Pollock, Contracts, 2d ed., p. 129. In Burchell v. Clark, 1 C. P. D. 602; s. c. 2 C. P. D. 88 (1876), the habendum of a lease stated the term as ninety-four and one quarter years, the reddendum stated it as ninety-one and one quarter years, and in the counterpart the habendum and reddendum both stated the term as ninety- one and one quarter years. The Common Pleas Division {Brett and Archi- bald, JJ.) held, that the statement of the habendum must prevail. But the Court of Appeal (Cockbum, C. J., and Bramwcll and Amplett. JJ.; Kelly, C. B., dissenting) reversed the judgment of the Common Pleas Division. Recital of Consideration. " It is at least well settled that the recital of consideration in a deed of conveyance estops the grantor to deny the exist- ence of that consideration for the purpose of impeaching the validity of the SECT. Ill] RECITAL OF CONSIDERATION 157 deed, as a deed of bargain and sale. 3 Washburn on Real Property (6th ed.) § 2283; Stannard v. Aurora, etc. R. R. Co., 220 111. 469. Lord Hardwicke was of the opinion that for whatever purpose such evidence was offered, proof could not be given that the consideration stated in a deed was in fact not the whole consideration, unless such words ' and other considerations ' followed the statement of specific consideration. Peacock v. Monk, 1 Ves. Sr. 127, 128. But so strict a rule is no longer applied either in England or America. By a relaxation originating in equity and extending to courts of law, additional consideration may be shown which is not repugnant to the consideration named. And, generally, at the present time, even though the consideration in fact was entirely different from the consideration named in the fleed, and not merely additional to it, the truth may be shown for any purpose except the impeachment of the validity of the deed for lack of consideration, unless the stated consideration is promissory in character and not merely a recital of fact." Williston, Contracts, § 115a. See Trajion v. Howes, 102 Mass. 533, 541; Clifford v. Turrill, 9 Jur. 633; Kales, Estates and Future Interests, 2d ed., § 62. " If owing to some rule of law, a deed fail to take effect in the manner intended, it will, if possible, be construed so as to take effect in some other manner which will carry the expressed general intention of the parties into effect." — Elphinstone, Deeds, 40. A case illustrating this important rule is Roe v. Tranmer, 2 Wils. 75. See also cases in Elphinstone; Rogers V. Sisters of Charity, 97 Md. 550; Carr v. Richardson, 157 Mass. 576; Eckman V. Eckman, 68 Pa. 460, 470; Kales, Estates and Future Interests, 2d ed., § 456. CHAPTER IV DESCRIPTION OF PROPERTY GRANTED SECTION I LAND NOT APPURTENANT TO LAND. ARCHER V. BEI^[NETT 1 Lev. 131. 1664. Ejectment, and upon I^ot guilty, a special verdict : A man seised of a close, on one part whereof was a house, and on another part thereof was a kiln; and also of two mills adjoining to the close; and used and occupied them all together till 1655, when he divided them, and sold the house and a part of the close, and reserved the other part and the kiln, and used them with the mills (and in truth the kiln was a kiln for the drying of oats, and the mills were for the making of oat-meal, hut this was not found by the verdict). And afterwards he sold the mills cum pertinentiis to the plaintiif : and whether the kiln, and the parts of the close on which they stood, should pass to the plaintiff, was the question. And it was held clearly by the court, that they did not pass; for by the grant of a messuage or lands cum perilnentils, any other land or thing cannot pass, though by the words cum, terris perUnentibus it would: and gave judgment for the defendant. But by Wyndham, Justice, if all the matter had been found, and that the kiln was necessary for the use of the mills, and without which they were not useful, the kiln had passed as part of the mills, though not as appurtenances. As by the grant of a messuage, the conduits and AvaterpijDCS shall pass as parcel, though they are remote; to which no answer was given.^ 1 In Hill v. Grange, 1 Plowd. 164 (1557), the question was what passed by a demise of a messuage, with all the lands to the same messuage appertain- ing. The judges " all argued to the same intent, and agreed unanimously that land could not be appurtenant to a messuage in the true sense of the word appertaining. For a messuage consists of two things, viz., the land and the edifice; and before it was built upon it was but land, and then land cannot be appurtenant to land. For a thing of one substance cannot be appurtenant to a thing of the same substance, and when it is built upon then it is a messuage, and consists in a great measure of the same substance that it did before. But the name is changed entirely, so that if the building afterwards falls to decay, yet it shall not have the name of land, although there be nothing in substance left but the land, but it shall be called a tojt, which is a name superior to land, and inferior to messuage; and this name it shall have in respect of the dignity which it once bore. But the chief substance of a messuage is the soil, although the superstructure and the 158 SECT. l] ARCHER V. BENNETT 159 soil are one efltire thing; and tlien nothing can be appurtenant to another but where it is of another nature and substance. And therefore it was said, there is hcereditaa corporata and hceredita.'i incorporata. Ha:rcditas corporata is such as messuage, land, meadow, pasture, rents, and the like, which have substance in them, and may continue always. But hcereditas incorporata is such as advowsons, villains, ways, commons, courts, piscaries, and the like, which are or may be appendant or appurtenant to inheritances corporate; and such things are and may be termed appurtenances. And Bracton calls the things which are inheritances corporate things corporeal ; and after he has treated of corporeal things, he has a chapter concerning appurtenances, wherein he treats of such things corporeal, ut supra, which are belonging, appendant, or appurtenant to things incorporeal. But a gross name may contain divers things corporeal, as a manor, monastery, rectory, castle, honor, and the like, are things compound, and may contain altogether messuages, lands, meadows, wood, and such like, and a thing corporeal may be parcel of a gross name, and of a thing compound, but one simple thing corporeal cannot be a parcel of or appurtenant to another simple thing corporeal. As land cannot be parcel of or appurtenant to meadow, nor meadow parcel of or appurtenant to pasture, nor pasture parcel of or appurtenant to wood, nor can land be parcel of or appurtenant to a messuage, nor to any other thing corporeal, for these things are but simple things, which of themselves cannot receive or include other things coiporeal. But an advowson, way, estovers, and such like things incorporeal may well enough be appurtenant to a messuage, and so is the difference. And although it is here pleaded that the land had been appurtenant to the messuage from time immemorial, this pleading or averment is to no purpose or effect. For a man cannot aver that to be appurtenant which the law will not suffer to be appurtenant, though usage and continuance may make a law in such things as stand with and are consonant to reason. But in things which are against law and reason, there usage and continuance is to no purpose, as here the pleading or averment that the land has been always appurtenant to the messuage, is an averment that that is law which is not law. And all the four justices agreed unanimously that the averment or pleading that the land has been always appurtenant to the messuage is not good here, and also they agreed that land might not be appurtenant to a messuage in the true and proper definition of an appurtenance. But yet all of them (except Brown, Justice, who did not speak to this point) agreed that the word (appertaining to the messuage) shall be here taken in the sense of ufiually occupied with the messuage, or lying to the messuage, for when appertaining is placed with the said other words, it cannot have its proper signification, as it is said before, and there- fore it shall have such signification as was intended between the parties, or else it shall be void, which it must not be by any means, for it is commonly used in the sense of occupied with, or lying to. ut supra, and being placed with the said other words it cannot be taken in any other sense, nor can it have any other meaning than is agreeable with law, and forasmuch as it is commonly used in that sense, it is the office of judges to take and expound the words, which common people use to express their meaning, according to their meaning, and therefore it shall be here taken not according to the true definition of it, because that does no stand with the matter, but in such sense as the party intended it. As where a lease was made for life, and after his death that the lands redibunt to a stranger, it was taken as remanehunt, for to that purpose the party here used it, and therefore, by 18 Ed. 3. it shall be taken by way of a remainder. And so a lease for life, the reversion to a stranger, shall be taken for a remainder, caiisa qua supra. And many other cases were put where a word shall be taken out of its natural sense, according to the sense intended by the party. So the word (appertaining) shall be here taken as occupied, used, or lying with, or to the messuage, and in such sense the averment may serve to declare that the land has been 160 ARCHER V. BENNETT [CHAP. IV always occupied with, or has hiin to tlH> messuage, and tlic deniise shall serve to convey the same to the defendant, and so the bar is good, nothwithstanding the said exception. And that was the opinion of the said three justices. And afterwards it was adjudged accordingly, as appears hereafter by the judgment. And in this argument Brown and Saundeks, Justices, held, that a garden and curtilage are parcels of a messuage: and Saunders said that a dove-house, a mill, and shops may be parcel of a messuage, and shall pass by the name of a messuage" (pp. 170, 171). In Hanbury v. Jenkins, L. R. T1901] 2 Ch. 401, 421, 422, the court was of opinion that one incorporeal hereditament (a way) could be appurtenant to another incorporeal hereditament (a fishery). SECT. Il] PERNAM V. WEED 161 SECTION II B O U N D A K I E S ^ A. In (jeneral. PERXAM v. WEED 6 Mass. 131. 1809, In a writ of entry sur disseisin, tLe demandant declared on his own seisin, and on a disseisin by the tenant. The tenant claimed under a levy of an execution extended upon the demandant's land, issued upon a judgment recovered against him by one Edmund Sawyer. On the trial, which Avas had before Sewall, J., at the sittings here after the last November Term, upon the general issue, the only question in dispute was, whether the land, which the tenant claimed to hold, was included within the bounds of the land, on which the execution was extended. Upon the evidence, the judge was of opinion with the tenant, and so directed the jury; but they found a verdict for the demandant. The tenant thereupon moved for a new trial, because the verdict was against evidence. Erom the report of the judge, it appears that the land on which the execution of Sawyer was extended, was bounded south-westwardly l)y Drury Lane, thirty-five feet ; north-eastwardly by the land of San- born and Collins, ninety-nine feet; north-westwardly by other land of the demandant, about thirty-fi,ve feet, by a line parallel to Drury Lane; and south-westwardly by land of Fletchei-, ninety-nine feet; and this parcel is said to contain thirteen rods. From a plan which had been taken under an order of the court, the line on Drury Lane, extending from the land of Sanborn and Collins to the land of Fletcher, appears to be thirty-five feet three inches and a half; and by the same plan, the line on the demandant's other land appears to be forty-two feet nine and a half inches; and this last extent of line is preserved for twenty-eight feet six inches from the said other land of the demandant towards Drury Lane, where the length of the line is thirty-seven feet three and a half inches. The demandant insisted that, as there was an over-measure of three and a half inches on one side, he ought to recover ou that side a strip of that width the Avhole length of the parcel exteuchxl upon; and as, on the other side, there was an over-measure of five feet six inches, extending twenty-eight six inches, in the form of a parallelo- gram, he ought also to recover that parallelogram. But it was agreed 1 The topic of Boundaries has been selected as that which furnishes most opportunity for the development of general rules. 162 PERNAM V. WEED [CHAP. IV that Drury Lane, the land of Sanborn and Collins on one side, and the land of Fletcher on the other side, are all fixed, known moiui- ments, about which there was no disputes; and that there was no question between the parties as to the other land of the demandant's parallel to Drury Lane. The demandant relied not only on the admeasurement, but also on the contents, which gives the tenant thirteen rods and two fifths, instead of thirteen rods, the contents stated in the extent of Sawyer's execution. There was no argument, and the opinion of the court was delivered to the following effect by Parsons, C. J. Upon considering the facts in this case, we have no doubt as to the motion. It must prevail, and a new trial be granted. When the facts were agreed by the parties, or proved at the trial, the result was a mere conclusion of law. And on these points the law has been long settled. When the boundaries of land are fixed, known, and unquestionable monuments, although neither courses, nor distances, nor the com- puted contents, correspond, the monuments must govern. With respect to courses, from errors in surveying instruments, variation of the needle, and other causes, different surveyors often disagree. The same observations apply to distances, arising from the inaccu- racy of measures, or of the party measuring; and computations are often erroneous. But fixed monuments remain : about them there is no dispute or uncertainty; and Avhat may be uncertain must be governed by monuments, about which there is no dispute. In the present case, Sanborn and Collins's land on one side, and Fletcher's on the other, are fixed monuments. The land is bounded on them, and must extend in width from one to the other. If the contents had proved less than thirteen rods, yet the tenant could claim only to those monuments; and where the contents are found to be greater, he still shall hold to the same monuments. The jury therefore mistook the law; and the cause must be sent to another jury to correct the mistake. New trial ordered.^ 1 In White v. Luning, 93 U. S. 514, 524, the court said, " It is true, that, as a general rule, monuments, natural or artificial, referred to in a deed con- trol, on its construction, rather than courses and distances; but this rule is not inflexible. It yields whenever, taking all the particulars of the deed to- gether, it would be absurd to apply it. For instance, if the rejection of a call for a monument would reconcile other parts of the description, and leave enough to identify and render certain the land which the sheriff intended to convey, it would certainly be absurd to retain the false call and thus defeat the conveyance." See Barrataria Co. v. Louisiana Co., 146 La. 1001 ; Meyer v. Comegys, 147 La. 851. In Kendall v. Green, 67 N. H. 557, it was held that the measurement of land de'scribed in a deed as beginning a certain distance from a house was to be made from the side of the house and not from the edge of the eaves. Centre Street Church v. Machias Hotel Co., 51 Me. 413, accord. Millett V. Fowle, 8 Cush. (Mass.) 150, contra. Compare Meeks v. Willard, 57 N. J. L. 22. SECT, lij LERNED I'. .MORRILL 163 LEERED V. MOREILL 2 N, H. 197. 1820. This was a writ of entry, in which the demandant counted upon his own seisin within twenty years and upon a disseisin by the tenant. The cause was tried here at April Term, 1819, upon the general issue, when a verdict was taken for the demandant, subject to the opinion of the court, upon the following facts. The tenant, by deed dated March 8, 1806, conveyed to the demand- ant a tract of land described in the deed as follows: " being the west- erly part of lot No. 2, and containing 80 acres, beginning at the northwest corner on Boscawen line; then south by Lerned's land to Contoocook river to a poplar tree, thence by said river to a stake and stones, thence northwardly a parallel line with the side line of said lot to a stake and stones on Boscawen line, thence on said Bos- cawen line to the bound first mentioned." The stakes and stones mentioned in the deed were not erected at the time of making the deed; but about eighteen months afterAvards, the parties Avent upon the premises with a surveyor and chain-men to run out and locate the land, and they erected the stakes and stones at the north-east and south-east corners of the premises. The parties first measured the whole lot, divided it in the middle, and then measured off ten acres from the east half and adjoining the west half, and set up stakes and stones at the north-east and south-east corners of the land so measured off, and ran the line from one stake and stones to the other, and set up stakes and stones at every tally. The tenant imme- diately cleared his land up to the line and built a fence upon it. The demandant also built a board fence on the line, and the parties occupied and improved the land on each side of that line till 1817. It was proved that the tenant said the demandant bought ten acres more than half the lot. In the fall of 1817, the defendant surveyed the lot, and finding that the demandant had more than eighty acres, removed the fence, and went in to possession of all but eighty acres, and this action is brought to recover the land, of which tlie tenant thus took possession. Per Curiam. The question presented to us in this case for deci- sion, has long been settled, and must now be considered as entirely at rest. Where land has been conveyed by deed, and the description of the land in the deed has reference to monuments, not actually in existence at the time, but to be erected by the parties at a subsequent period: when the parties have once been upon the land and deliber- ately erected the monuments, they will be as much bound by them, as if they had been erected before the deed was made. In this case, there was a reference in the deed to monuments not actually exist- ing at the time, but the parties soon after went upon the land with 164 KNOWLES V. TOOTH AKER [CHAP. IV a surveyor, ran it out, erected monuments, and built tlieir fences accordingly; and this is not all. They respectively occupied the land according to the line thus established, for nearly ten years. And there is now no evidence in this case of any mistake or mis- apprehension in establishing the line. There is no pretence that the tenant could lawfully remove monuments thus deliberately erected and so long acquiesced in. His claim to the demanded premises, for ought that appears in this case, is without any foundation what- ever, and there must be Judgment for the demandant.^ KNOWLES V. TOOTHAKEE 58 Maine 172. 1870. On report. Writ of entry. Case is fully stated in the opinion. DicKERsoN, J. Writ of entry. Both parties claim title through the same grantor, Henry Smith, who, in the first instance, conveyed " parts of lots numbered 9 and 10, on the east side of Sandy Eiver," to the defendant. After reciting the other boundaries, the descrip- tion in the deed continues as follows : " thence easterly by a line parallel with the north line of lot No. 9 to the county road," the grantee taking the land north of the line now in dispute, and the grantor retaining the land south of it. The line was run and marked by a surveyor immediately after the conveyance, and the parties then built a fence on it, intending it for a division fence. Smith occupying to the fence on the south, and the defendant on the north side of the fence, for some six years, when Smith conveyed his re- maining parcel to the plaintiff's grantor, describing the line in con- troversy as follows, " to land supposed to be owned by George Tooth- aker, thence easterly on said Toothaker's south line to the county road." About eight months afterwards, the grantee conveyed the last named premises to the plaintiff, describing it as " the same she purchased of Henry Smith." The plaintiff claims to hold to the line described as running " easterly by a line parallel with the north line of said lot No. 9 to the county road," in Smith's deed to the defendant, which is several rods northerly of the fence, and the defendant claims to hold to the divisional line made by the fence; and the question is, which is the true line between the parties? The presiding judge ruled that the words, " on said Toothaker's south line," would limit the plaintiff's land to the line established by Toothaker and Smith, on which the division fence was built, and that she could not hold beyond this line, even if she could satisfy the jury that it did not conform to the original lot line; thereupon the parties agreed to submit the question to the law court, judgment 1 Mistake in locating boundary line, see Kinne v. Waggoiwr, 197 Pac. (Kan.) 195; Ouzts v. McKnight, 114 S. C. 303. SECT. II ] KNOWLES V. TOOTHAKER 165 to be rendered for the defendant if the rulijig is correct; if not, the action is to stand for trial. But for the acts of the parties in interest, in running, marking, and locating the line, building a fence upon it immediately after the conveyance, and occupying up to it down to the commencement of this suit, the line on the course described in the deed, if it could be ascertained, would be the line between the two parcels. Did these acts fix and establish the divisional line as the true line? It was early held that where a deed refers to a monument, not actually existing at the time, but which is subsequently placed there by the parties for the purpose of conforming to the deed, the monu- ment so placed will govern the extent of the land, though it does not entirely coincide with the line described in the deed. Makepeace V. Bancroft, 12 Mass. 469 (1815); Kennebec Purchase v. Tiffany, 1 Greenl. 211 (1821); Lerned v. Morrill, 2 K H. 197 (1820). Again it was held in Moody v. Nichols, 16 Maine, 23 (1839), that when jDarties agree upon a boundary line, and hold possession in accordance with it, so as to give title by disseisin, such boundary will not be disturbed, although found to have been erroneously established. In that case the call in the deed was " a line extended west, so as to include " a certain number of acres, the boundaries upon the other three sides having been accurately described. The parties to the deed agreed upon and marked that line, erected a fence upon it, and held possession according to it for thirty years. The same doctrine was held by the Supreme Court of the United States, in giving construction to a line described in the deed as " run- ning a due east course " from a given point. Missouri v. Torva, 6 How. 660. So the court in Massachusetts, in giving effect to a deed, describ- ing a line as " running a due west course " from a given point, held that the line located, laid out, assented to, and adopted by the parties was the true line, though it varied several degrees from " a due west course." Kellogg v. Smith, 1 Cush. 382 (1851). In Emery v. Fowler, 38 Maine, 102 (1854), the call in the deed was a line from a given point, " on such a course ... as shall con- tain exactly one and a half acres." The lots to be conveyed were located upon the face of the earth by fixed monuments, erected by referees mutually agreed upon; and the parties to the several con- veyances assented to and adopted the location before the deeds were given. Deeds intended to conform to the location thus made Avere then executed by the parties. The respective grantees entered under the deeds, built fences, and occupied in conformity with the location for fifteen years, Avhen, it being found that more land was contained within the limits of the actual location upon the face of the earth than was embraced within the calls of the deed, a dispute arose. The court held that the monuments thus erected before the deed was given, must control, thus extending the rule adopted in Moody 166 KNOWLES V. TOOTH AKER [CHAP. IV V. Nichols to cases where the possession had not been long enough to give title by disseisin. That decision also makes the rule of con- struction the same, whether the location is first marked and estab- lished, and the deed is subsequently executed,^ intended to conform to such location, or whether monuments, not existing at the time, but referred to in the deed, are subsequently erected by the parties with like intention. In construing a deed, the first inquiry is. What Avas the intention of the parties? This is to be ascertained primarily from the lan- guage of the deed. If the description is so clear, unambiguous, and certain, that it may be readily traced upon the face of the earth from the monuments mentioned, it must govern ; but when, from the courses, distances, or quantity of land given in a deed, it is uncertain precisely Avhere a particular line is located upon the face of the earth, the contemporaneous acts of the parties in anticipation of a deed to be made in conformity therewith, or in delineating and establishing a line given in a deed, are admissible to show what land was intended to be embraced in the deed. It is the tendency of recent decisions to give increased weight to such acts, both on the ground, that they are the direct index of the intention of the parties in such cases, and, on the score of public policy, to quiet titles. The ordinary variation of the compass, local attraction, imperfection of the instruments used in surA'eying, or unskillfulness in their use, inequalities of surface, and various other causes, oftentimes render it impracticable to trace the course in a deed -with entire accuracy. If to these considerations we add, what is too often apparent, the ignorance or carelessness of the scrivener in expressing the meaning of the parties, we shall find that the acts of the parties in running, marking, and locating a line, building a fence upon it, and occupy- ing up to it, are more likely to disclose their intention as to where the line was intended to be, when the deed was given, than the course put down on paper, if there is a conflict betAveen the tAvo. Hence the rule of law now is, that Avhen, in a deed or grant, a line is described as running from a given point, and this line is after- wards run out and located, and marked upon the face of the earth by the parties in interest, and is afterwards recognized and acted on as the true line, the line thus actually marked out and acted on is conclusive, and must be adhered to, though it may be subsequently ascertained that it varies from the course given in the deed or grant. The acts of the defendant and Smith, through AA-hom the plaintiff claims, in surveying and marking the line in dispute upon the face of the earth by stakes and stones and spotted trees, building a fence thereon, intending it to be the line betAA-een them, and occupying up to it, make and establish such line as the divisional line betAveen the two lots. 1 Compare McKinney v. Doane, 155 Mo. 287; Ncgbaiier v. Smith, 44 N. J. L. 672. SECT. II ] KNOWLES V. TOOTH AKER 167 The ruling of the presiding judge was in accordance with this con- struction of the deeds, and there must be Judgment for defendant.^ Appleton, C. J., Cutting, Kent, Barrows, and Danforth, JJ., concurred. 1 Compare Reynolds v. Boston Rubber Co., 160 Mass. 240; Allison v. Kcnion, 163 N. C. 582; Talbot v. Smith, 56 Oreg. 117; Crandall v. Mary, 67 Oreg. 18; Savill Bros. v. BetchcU, [1902 J 2 Ch. 523. An agreement to settle an honestly disputed boundary is valid between the parties. Many of the decisions state that the agreement must be acted on. Jenkins v. Trager, 40 F. R. 726; Payne v. McBridc, 96 Ark. 168; Malone v. Mobbs, 102 Ark. 542; Grants Pass Co. v. Brown, 168 Cal. 456; Watrous v. Morrison, 33 Fla. 261; Farr v. Wooljolk, 150 Ga. 289; Adams v. Betz, 167 Ind. 161; St. Bcde College v. Wejer, 168 111. 324; Purtle v. Bell, 225 111. 523; Warden v. Addington, 131 Ky. 296; Garvin v. Threlkeld, 173 Ky. 262; Turner v. Boiocns, 180 Ky. 755; Jones v. Pashby, 67 Mich. 459; Pittsburgh Iron Co. v. Lake Superior Iron Co.. 118 Mich. 109; Archer v. Helm, 69 Miss. 730; Turner v. Baker, 64 Mo. 218; Atchison v. Pease, 96 Mo. 566; Barnes v. Allison, 166 Mo. 96; Hitchcock v. Libby, 70 N. H. 399; Wfjod V. Bapp. 169 N. W. (N. D.) 518; Bobo v. Richmond, 25 Ohio St. 115; Hagey v. Detweilcr, 35 Pa. 409; Cooper v. Austin, 58 Tex. 494; Ham v. Smith, 79 Tex. 310; Levy v. .Vac/c/ox, 81 Tex. 210; Gwynn v. Schwartz, 32 W. Va. 487; Le Comte v. Freshwater, 56 W. Va. 336. Contra, Liverpool Wharf Co. v. Prescott, 4 All. (Mass.) 494. Compare Raymond v. A^ash, 57 Conn. 447; Fredericksen v. Bierent. 154 Iowa 34; Hooper v. Herald, 154 Mich. 529; Stone v. Clark, 1 Met. (Mass.) 378; Jackson v. Dysling, 1 (Taines (N. Y.) 198; Messer v. Oestreich, 52 Wis. 684. For the effect of such agreement on purchasers from the original parties thereto, see Idaho Land Co. v. Parson.-^, 3 Idaho 450; Osteen v. Wynyi, 131 Ga. 209; Keen v. Osborne, 185 Ky. 647; Iverson v. /Su««», 169 Mass. 582; Tanner v. Stratton, 44 Utah 253; Tumrr v. Creech, 58 Wash 439. In McKinney v. Doane, 155 Mo. 287 (1899), a tract of land had been surveyed and stakes set at the corners of the lots. A plat of the tract was recorded and lots were sold by reference to this recorded plat. The plat contained no reference to the stakes. The owner of the tract, A, sold two lots to B and subsequently sold an adjoining lot to C. The court held that if, at the time of the sale to B, A pointed out the stakes to B and B took possession of the lots, made improvements and built fences thereon in ac- cordance with the stakes, then, as between A and B and any subsequent grantees having knowledge of the facts, B became the owner of the lots as bounded by the stakes even though the lots as so bounded may not have agreed with the lots as .shown on the recorded plat; but that subsequent' grantees without knowledge of the facts were not affected. " One who pur- chases a surveyed lot, or tract of land, without notice of the actual boundary, or corners, has a right to rely upon what appears from the original survey, or plat thereof, and is not bound by monuments which do not appear there- from to have been placed upon the land." On the effect of acquiescence of adjoining proprietors in the location of a boundary line, see Long v Cumming.^. 156 Ala. 577; Price v. De Reyes, 161 Cal. 484; Lowndes v. Wicks, 69 Conn. 15; Clayton v. Feig, 179 111. 534; Keller v. Harrison, 139 Iowa 383: Dwigbt v. Des Moines. 174 Iowa 178; Brummell v. Hams, 148 Mo. 430; Martin v. Hays. 228 S. W. (Mo.) 741; Den d. Haring v. Van Houton, 22 N. J. I.. 61 ; Dibble v. Roger.renie Court for a new trial. This motion was denied, and the ca.se was then brought by writ of error before the Court for the Correction of Errors. Only the opinion of Walworth, C, is given. 176 STARR V. CHILD [CHAP. IV had the boundary line been a stone wall, six feet in width at the bottom, the grant would have extended to the centre of it," (See also 3 Kent's Com. 432.) Although this principle exists as to the construction of grants which are unrestricted in their terms, and also as to the legal pre- sumption of ownership by the riparian proprietor where from lapse of time or otherwise the terms of his grant from the former or original proprietors cannot be ascertained, there can be no doubt of the right of the general owner of the bed of the river, as well as of the land upon its banks, so to limit or restrict his conveyance of the one as not to divest himself of his property in the other. Lord Chief Justice Hale, in his learned treatise De Jure Maris, &c., ad- mits that the prima facie presumption of ownership of the bed of the stream by the riparian proprietor may be rebutted by evidence that the contrary is the fact. He says, " one man may have the river" and others the soil adjacent, or one may have the river and soil thereof, and another the free or several fishing in that river." (See Harg. Law Tr. 5.) And the learned and venerable commentator upon the American law says, it is competent for the riparian pro- prietor to sell his upland to the top or edge of the bank of a river, and to reserve the stream or the flats below high water-mark, if he does it b}'^ clear and specific boundaries. (3 Kent's Com. 434.) This was also expressly decided by Mr. Justice Washington in the Circuit Court of the United States for the Third Circuit, in the case of Den v. Wright, Peter's C. C. Rep. 64, where the owner of the alveus or bed of the creek, and also of the adjacent land upon the south bank thereof, had conveyed 29 acres in the bed of the creek, bounded by the sides of the same, without any of the land upon either of the adjacent banks. In the case of DunJap v. Stetson, 4 Mason's Rep. 349, in the Circuit Court of the United States for the First Circuit, where the lands granted, instead of being bounded on the Penobscot River generally, were described as commencing at a stake and stones on its west bank, and after running on the other sides of the lot certain courses and distances to another stake and stones on the same bank of that river, and thence vp07i the hanh at high water-marh, to the place of beginning, Judge Story decided, that the flats between high and low water-mark were not conveyed by the deed; although by a colonial ordinance, which was recognized as the existing law of the State, grants bounded generally upon tide waters carried the grantee to low water-mark. A similar decision was made by the Supreme Court of Massachusetts in the case of Stover V. Freeman, 6 Mass. 435. In that case one of the conveyances de- scribed the lines as running to the shore of Gamaliel's N'eek, and thence by the shore, ^e v." Maginnis, 44 L. Ann. 1043; Bris- bane V. St. Paul d- S. C. Rd. Co., 23 Minn. 114; Ocean City Hotel Co. v. Sooy, 77 N. J. L. 527; Johnson v. Grenell, 188 N Y. 407; Gcddes Salt Co. v. Niagara Power Co., 207 N. Y. 500; Giilord v. Horton, 54 Wash. 595. CHAPTER V ESTATES CREATED SECTION I ESTATES IN FEE SIMPLE Lit. § 1. Tenant in fee simple is lie which hath lands or tene- ments to hold to him and his heirs forever. And it is called in Latin, feodum simplex, for feodum is the same that inheritance is, and simplex is as much as to say, lawful or pure. And so feodum simplex signifies a lawful or pure inheritance. Quia feodum idem est quo kcereditas, et simplex idem est quod legitimum vel purum. Et sic feodum simplex idem est quod hcereditas legitima, vel hcereditas pur a. For if a man would purchase lands or tenements in fee simple, it behooveth him to have these words in his purchase. To have and to hold to him and to his heirs: for these words (his heirs) make the estate of inheritance. Eor if a man purchase lands by these words, To have and to hold to him forever : or by these words. To have and to hold to him and his assigns forever : in these two cases he hath but an estate for term of life, for that there lack these words (his heirs), which words only make an estate of inheritance in all feoff- ments and grants. Co. Lit. 8 b. And it is to be observed, that every word of Littleton is worthy of observation. First (heirs) in the plural number; for if a man give land to a man and to his heir in the singular number, he hath but an estate for life, for his heir cannot take a fee simple by descent, because he is but one, and therefore in that case his heir shall take nothing.^ Also observable is this conjunctive {et). For if a man give lauds to one, To have and to hold to him or his heirs, he hath but an estate for life, for the uncer- tainty.-^ . . . Here Littleton treateth of purchases by natural per- sons, and not of bodies politic or corporate ; for if lands be given to a sole body politic or corporate (as to a bishop, parson, vicar, master of an hospital, &c.), there to give him an estate of inheritance in his politic or corporate capacity, he must have these words, To have and to hold to him and his successors ; for without these words successors, in those cases there passeth no inheritance; for as the heir doth 1 See Harg., note ad lac; Elphinstone, Deeds. Eule 67, Obs. 2 '■ As to the construction contended for, although it is supported by a dictum of Lord Coke's, it is a strictness not to be tolerated at the pre.sent day." Per Sewall. J., in White v. Crawford, 10 Mass. 183, 188 (1813). 182 SECT. l] ESTATES IN FEE SIMPLE 183 inherit to the ancestor, so the successor doth succeed to the predeces- sor, and the executor to the testator. But it appeareth here by Little- ton, that if a man at this day give lands to I. S; and his successors, this createth no fee simple in him ; for Littleton speaking of natural persons saith that these words (his heirs) make an estate of inheri- tance in all feoffments and grants, whereby he excludeth these words (his successors). Co. Lit. 9 b, 10 a. And here it is to be observed (that I may speak once for all) that every period of our author in all his three books contains matter of excellent learning, necessarily to be col- lected by implication, or consequence. For example he saith here, that these words (his heirs) make an estate of inheritance in all feoifments and grants. He expressing feoffments and grants, neces- sarily implieth, that this rule extendeth not, — First, to last ivills and tesfaments; for thereby, as he himself after saith, an estate of inheritance may pass without these words (his heirs). As if a man devise twenty acres to another, and that he shall pay to his executors for the same ten pound, hereby the de- visee hath a fee simple by the intent of the devisor, albeit it be not to the value of the land. So it is if a man devise lands to a man in perpetuiim, or to give and to sell, or in feodo simplici, or to him and to his assigns forever. In these cases a fee simple doth pass by the intent of the devisor. But if the devise be to a man and his assigns Avithout saying (forever), the devisee hath but an estate for life. If a man devise land to a man et sanguini suo, that is a fee simple; but if it be semini suo, it is an estate tail. Secondly, that it extendeth not to a fine sur comisans de droit come ceo que il ad de son done, by which a fee also may pass without this word (heirs) in respect of the height of that fine, and that thereby is implied that there was a precedent gift in fee. Thirdly, nor to certain releases, and that three manner of waj^s. First, when an estate of inheritance passeth and continueth; as if there be three coparceners or joint tenants, and one of them release to the other two, or to one of them generally without this word (heirs), by Littleton's own ojjinion they have a fee simple, as a])pear- eth hereafter. 2. By release, when an estate of inheritance passeth and continueth not, but is extinguished; as where the lord releaseth to the tenant, or the grantee of a rent, (Sic, release to the tenant of the land generally all his right, kc, hereby the seigniory, rent, dicta cum pert in.; yet B. recovereth a fee 184 ESTATES IN FEE SIMPLE [CHAP. V simple without this word (heirs) ; for regularly every recoverer re- covereth a fee simple. 5. Nor to a creation of nobility by writ; for when a man is called to the Upper House of Parliament by writ, he is a baron, and hath inheritance therein without the word (heirs). ... But out of this rule of our author the law doth make divers excep- tions (ct excepfio probat regulam) ; for sometime by a feoffment a fee simple shall pass without these words (his heirs). For example, first, if the father enfeoff the son, to have and to hold to him and to his heirs, and the son enfeoffeth the father as fully as the father en- feoffed him, by this the father hath a fee simple, quia verba relata hoc maxime operaniur per referent lam ut in esse videntur. Secondly, in respect of the consideration, a fee simple had passed at the common law, without this word (heirs), and at this day an estate of inheritance [in] tail. As if a man had given land to a man with his daughter in frankmarriage generally, a fee simple had passed without this word (heirs) ; for there is no consideration so much respected in law as the consideration of marriage, in respect of alli- ance and posterity. Thirdly, if a feoffment or grant be made by deed to a mayor or commonalty, or any other corporation aggregate of many persons capable, they have a fee simple Avithout the word (successors) ; because in judgment of the law they never die.^ Fourthly, in case of a sole corporation a fee simple shall sometime pass without this word (successors). As if a feoffment in fee be made of land to a bishop, to have and to hold to him in libera elee- mosina, a fee simple doth pass without this word (successors). And so if a man give lands to the king by deed enrolled, a fee simple doth pass without these words (successors or heirs) ; because in judg- ment of* law the king never dieth. Fifthly, in grants sometimes an inheritance shall pass without this word (heirs). As if partition be made between coparceners of lands in fee simple, and for owelty of partition the one grant a rent to the other generally, the grantee shall have a fee simple without this w^ord (heirs) ; because the grantor hath a fee simple, in consideration whereof he granted the rent : Ipsoe etenim leges cupiunt ut jure regantur. Sixthly, by the forest law if an assart be granted by the king at a justice seat (which may be done without charter) to another, habendum et tenendum sibi in perpetuum, he hath a fee simple without this word (heirs) ; for there is a special law of the forest, as there is a law martial for M^ars, and a marine law for the seas. And this rule of our author extendeth to the passing of estates of inheritances in exchanges, releases, or confirmations that inure by way of enlargement of estates, w^arranties, bargains and sales - by deed indented and enrolled, and the like, in which this word (heirs) is also necessary, for they do tantamount to a feoffment or grant, or 1 See Georgia v. Cincinnati So. Ry.. 248 U. S. 26. 2 But see Challis, Real Prop., 3(1 ed., 223. SECT. l] ESTATES IN FEE SIMPLE 185 stand upon the same reason that a feoffment or grant doth; for like reason doth make like law, ubi eadem ratio, ihi idem jus. And this is to be observed throughout all these three books, that where other cases fall within the same reason, our author doth put his case but for example; for so our author himself in another place explaineth it, saying, " and memorandum, that in all other [such] like cases, although it be not here expressly moved or specified, if thoy be in like reason, they are in the like law." And here our author is to be understood to speak of heirs when they are inheritable by descent, for they are capable of land also by purchase, and then the course of descent is sometimes altered. As if lands of the nature of gavel- kind be given to B. and his heirs, having issue divers sons, all his sons after his decease shall inherit ; but if a lease for life be made, the remainder to the right heirs of B., and B. dieth, his eldest son only shall inherit, for he only to take by purchase is right heir by the common law. So note a diversity between a purchase and a descent. But where the remainder is limited to the right heirs of B., it need not be said, and to their heirs; for being plurally limited it includeth a fee simple, and yet it resteth but in one by purchase.^ 1 See Anderson v. Logan, 105 N. C. 266 (1890). Cf. Cole v. Lake Com- pany, 54 N. H. 242. 279-290 (1874). As to determinable fees, see First Universalist Society v. Boland, 155 Mass. 171 (1892); Gray, Perp. (3d ed.) §§ 31^2. In Lewis v. Rees, 3 K. & J. 132 (1856) land was conveyed by deed to A for life, then to B for life, then to C and D, and their heirs, in trust to preserve contingent interests, then over. It was argued that the trust was in- tended to continue only during the lives of A and B, that upon the deaths of A and B the trustees ceased to have any legal estate and that the persons entitled under the limitations over took legal states. The court held, that the trustees took a fee, that their estate could not be restricted to such estate as was necessary for the purposes of the trust, and that therefore the persons entitled under the limitations over took ordy equitable estates. Cooper v. Kynock, L. R. 7 Ch. App. 398 (1872) accord But in Newhall v. Wheeler, 7 Mass. 189 (1810), where land had been con- veyed to A, B, and C, selectmen of a towTi, and their " successors," in trust for D and his heirs, the court held, that the trustees took a fee. " The legal estate of the trustees shall be commensurate with the equitable estate of the cestui que trust, which in this case is a fee simple." The court gave no authorities or reasoning in .support of this conclusion. The doctrine of Newhall v. Wheeler has, however, been generally followed in the United States. See Angell v. Rosenbury, 12 Mich. 241, 266 (1864); Kales, Estates and Future Interests, 2d ed., §§ 183-193. 186 ESTATES TAIL [CHAP. V SECTIO]^ II ESTATES TAIL Co. Lit. 20 a, b. In gifts in tail these words (heirs) are as necessary, as in feoffments and grants; for seeing every estate tail was a fee simple at the common law, and at the common law no fee simple could be in feoffments and grants without these words (heirs), and that an estate in fee tail is but a cut or restrained fee, it follow- eth, that in gifts in a man's life-time no estate can be created with- out these words (heirs), unless it be in case of frankmarriage, as here- after shall be showed. And where Littleton saith (heirs), yet (heir) in the singular number in a special case may create an estate tail, as appeareth by 39 Ass. p. 20, hereafter mentioned. And yet if a man give lands to A. et hceredihus de cor pore suo, the remainder to B. in forma pnvdicta, this is a good estate tail to B. for that in forma prcedicta do include the other. If a man letteth lands to A. for life, the remainder to B. in tail, the remainder to C. in forma prcedicta, this remainder is void for the uncertainty. But if the re- mainder had been, the remainder to C. in eadem forma, this had been a good estate tail; for ide7n semper proximo anfecedenti referiur. If a man give lands or tenements to a man, et semini suo or exitihus vel prolihtis de cor pore suo, to a man, and to his seed, or to the issues or children of his body, he hath but an estate for life; for albeit that the Statute provideth, that voluntas donatoris secundum for- mam in charta doni sui manifeste expressam de caetero ohservetur, yet that will and intent must agree with the rules of law. And of this opinion was our author himself, as it appeared in his learned reading afore-mentioned upon this Statute, where he holdeth, if a man giveth land to a man et exitihus de corpore suo legitime pro- creatis, or semini suo, he hath but an estate for life, for that there wanteth words of inheritance. These words [of his body] are not so strictly required but that they may be expressed by words that amount to as much : for the example that the Statute of W. 2 putteth hath not these words (de corpore) but these words (hceredihus) viz. Cum aliquis dat terram- suam alicui viro et ejus uxori et hceredihus de ipsis viro et muliere procrea- tis. If lands be given to B. et hceredihus quos idem B. de prima uxore sua legitime procrearet, this is a good estate in especial tail (albeit he hath no wife at that time) without these words (de cor- pore). So it is if lands be given to a man, and to his heirs which he shall beget of his wife, or to a man et hceredihus de came sua, or to a man et hceredihus de se. In all these cases these be good estates in tail, and yet these words de corpore are omitted.^ 1 See Stimson, Am. St Law. § 1313: Kales, Estates and Future Interests. 2d ed., §§ 194-200; 402-411. SECT. II ] ESTATES TAIL 187 Co. Lit. 26 b. John de Mandeville by his wife Roberge had issue Robert and Mawde. Michael de Morevill gave certain lands to Roberge and to the heirs of John Mandeville her late husband on her body begotten, and it was adjudged that Roberge had an estate but for life, and the fee tail vested in Robert (heirs of the body of his father being a good name of purchase), and that when he died without issue. Mawde the daughter was tenant in tail as heir of the body of the father, per for mam doni, and the formedon Avhich she brought supposed, " quod post mortem pra'fatse Robergiae et Robert i filii et hseredis ipsius Johannis Mandeville et hsered ' ipsius Johannis de praefatse Robergise per prsefatum Johannem procreat' prsefat' Matilda filife prsedict' Johannis de praefata Robergia per prsefatum Johannem procreatse sorori et hseredi prsedicti Roberti descendere debet per f ormam donationis prsedict '." And yet in truth the land did not descend unto her from Robert, but because she could have no other wn-it it was adjudged to be good. In which case it is to be observed, that albeit Robert being heir took an estate tail by pur- chase, and the daughter was no heir of his body at the time of the gift, yet she recovered the land, per f ormam doni, by the name of heir of the body of her father, which notwithstanding her brother was, and he was capable at the time of the gift; and therefore when the gift was made she took nothing but in expectancy, when she became heir per farmam doni. 188 ESTATES FOR LIFE [CHAP. V ( SECTION III ESTATES FOR LIFE Co. Lit. 42 a, b. If a man grant an estate to a woman dum sola fuit, or durante viduitate, or qilam diu se bene gesserit, or to a man and a woman during the coverture, or as long as the grantee dwell in such a house, or so long as he pay x I. &c., or until the grantee be promoted to a benefice, or for any like uncertain time, which time, as Bracton saith, is tempus indeterminatum: in all these cases, if it be of lands or tenements, the lessee hath in judgment of laAv an estate for life determinable, if livery be made ; and if it be of rents, advowsons, or any other thing that lie in grant, he hath a like estate for life by the delivery of the deed, and in count or plead- ing he shall allege the lease, and conclude, that by force thereof he was seised generally for term of his life. If a man make lease of a manor, that at the time of the lease made is worth XX /. per annum, to another until c /. be paid, in this case because the annual profits of the manor are uncertain, he hath an estate for life, if livery be made determinable upon the leA^ying of the c /. But if a man grant a rent of xx I. per annum until c I. be paid, there he hath an estate for five years, for there it is certain, and depends upon no uncertainty. And yet in some cases a man shall have an uncertain interest in lands or tenements, and yet neither an estate for life, for years, or at will. As if a man by his will in writ- ing devise his lands to his executors for payment of debts, and until his debts be paid; in this case the executors have but a chattel, and an uncertain interest in the land until his debts be paid; for if they should have it for their lives, then by their death their estate should cease, and the debts unpaid; but being a chattel, it shall go to the executors of executors for the payment of his debts : and so note a diversity between a devise and a conveyance at the common law in his lifetime. And tenant by statute merchant, by statute staple, and by elegit, have uncertain interests in lands or tenements, and yet they have but chattels, and no freehold, whose estates are created by divers Acts of Parliament, whereof more shall be said hereafter. And so have guardians in chivalry which hold over for single or double A'alue uncertain interests, and yet but chattels. If one grant lands or tenements, reversions, remainders, rents, ad- vowsons, commons, or the like, and express or limit no estate, the lessee or grantee (due ceremonies requisite by law being performed) hath an estate for life. The same law is of a declaration of a use. A man may have an estate for term of life determinable at will; as if the king doth grant an office to one at will, and grant a rent to him for the exercise of his office for term of his life, this is determin- able upon the determination of the office. SECT. Ill] rosse's case 189 A. tenant in fee simple, makes a lease of lands to B. to have and to hold to B. for term of life, without mentioning for whose life it shall be, it shall be deemed for term of the life of the lessee, for it shall be taken most strongly against the lessor, and as hath been said an estate for a man's own life is higher than for the life of another. But if tenant in tail make such, a lease without expressing for whose life, this shall be taken but for the life of the lessor, for two reasons. First, when the construction of any act is left to the law, the law, which abhorreth injury and wrong, will never so construe it as it shall work a wrong: and in this case, if by construction it should be for the life of the lessee, then should the estate tail be discontinued, and a new reversion gained by wrong : but if it be construed for the life of the tenant in tail, then no wrong is wrought. And it is a gen- eral rule, that whensoever the words of a deed, or of the parties without deed, may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken. Secondly, the law more respecteth a lesser estate by right, than a larger estate by Avrong; as if tenant for life in remainder disseise tenant for life, now he hath a fee simple, but if tenant for life die. now is his wrongful estate in fee by judgment in law changed to a rightful estate for life. EOSSE'S CASE 5 Co. 13 a. 1598. Between Peter Rosse and Aldwick in an Ejectione firmce, which began Pasch. 37 Eliz. Kot. 499, the case was such ; a lease is made to A. and his assigns, habendum to him during his life, and the lives of B. and C* and if this limitation during the life of B. and C were void or not, was the question. And it was adjudged, that the limita- tion was good ; for where it was objected that when a man hath two estates in him, the greater shall drown the less, and that an estate for his own life is higher than for the life of another ; and therefore an estate for his own life, and for the lives of others, cannot stand together, — to that it was answered and resolved, that in the case at bar, the lessee had but one estate, which hath this limitation, sril. during his life, and the lives of two others, and he hath but one free- hold, and therefore there cannot be any drowning of estates in the case, but he hath an estate of freehold to continue during these three lives, and the survivor of them.^ 1 See St. 29 Cnr. II, c. 3, § 12 (1677); Stimson, Am. St. Law, § 1335; Warren, Cas. on Wills, p. 457. 190 BEESON V. BURTON [chap. V BEESON V. BURTON 12 C. B. 647. 1852. The names of John Burton and twenty-eight other persons claim- ing under similar circumstances, appeared on the list of persons claiming to be entitled to vote in the election of any knight of the shire for the southern division -of the county of Leicester, and were all duly objected to by the appellant. The said John Burton appeared on the list of claimants, as follows : — Name of voter. Place of abode. Nature of qualification. Street, &c., where the property is situate, &c. Burton, John. 3, Haymarket. Freehold interest in building and land. On road, T. Freeman's Common. John Burton is a resident freeman of the borough of Leicester, and possessed of an allotment of land under the provisions of a private Act of Parliament, 8 and 9 Vict. c. 6, intituled ''An Act to repeal so much of an. Act for enclosing lands in or near the borough of Leicester, as relates to the regulation and management of the free- men's allotments, and to make other provisions in lieu thereof." By this Act, which was annexed to and formed part of the case, the resi- dent freemen are empowered to elect from their own body a certain number of deputies to act for them in the regulation and general management of the freemen's allotments. The 8th section empowers the deputies to take possession of the lands comprised in the first schedule of the Act (of which lands the allotment of the present claimant forms a part), and break up the whole or such parts thereof as to them shall seem expedient, and apportion and divide the same when so broken up into small allot- ments, not exceeding five hundred yards each, among the resident freemen desiring to become occupiers thereof, at an annual rent to be fixed at the discretion of the deputies, but not exceeding one farthing for every square yard, nor less than one shilling for every hundred yards; the allotments to be held respectively by each resi- dent freeman desiring to become the occupier, and obtaining posses- sion thereof, so long as he shall be willing to hold the same, and shall pay the annual rent, and conform to the orders and regulations to be made from time to time by the said deputies. By the 15th section, all the lands comprised in the two schedules of the Act, are vested absolutely in the deputies for the time being, in trust for the resident freemen. By the 17th section, the deputies have power to dispose, by absolute sale, or all or any part of the allotment comprised in the first SECT. Ill] BEESON V. BURTON 191 schedule of the Act, freed aud discharged from all right, claim, and interest of the resident freemen, but, by the 22d section, no sale is to be effected under the powers of the Act, without the consent of the major part of the freemen assembled at a public meeting, to be con- vened and conducted in the manner directed by this section. By the 32d section in case any freeman shall be in arrear of rent for his allotment, for the space of fourteen days, or shall not con- form to the provisions of the Act, or the orders, rules, and regula- tions to be made by the deputies, the said deputies may re-enter such allotment, and by force evict and dispossess such freeman. The claimant has erected buildings on the land allotted to him, which land and buildings are above the value of 40s. above all charges. It was contended, on the part of the appellant, that the claimant had no freehold interest in his allotment; but the revising-barrister decided that he had, and inserted his name accordingly on the list of voters for the parish of St. Mary, Leicester. The cases of Thomas Archer, and twenty-seven other persons whose claims depended on the same point, were consolidated with the prin- cipal case. Jervis, C J. It seems to me that the view taken by the revising- barrister in this case was correct, and that his decision must be affirmed, — the claimant having a freehold interest which entitled him to vote. It was admitted by the appellant's counsel, that the possession of a freehold interest of an uncertain duration, would entitle the party to a vote : but it was insisted that the estate which each allottee under this Act has, is not an estate of an uncertain duration, within the rule laid down in Co. Lit. 42 a, because it was determinable by the deputies; and therefore that the case must be governed by that of Davis, app. Waddington, resp., 7 M. & G. 37; 8 Scott N. R. 807. But, upon looking at the 8th section of the 8 & 9 Vict. c. 6, I find that each allottee is to hold his allotment " so long as he shall be willing to hold the same, and shall pay the annual rent, and conform to the orders and regulations to be made from time to time by the said deputies." This provision is sufficient per se to create a freehold interest. But it is said that the whole scope of the Act, and especially the power vested in the deputies, by § 17, to sell the land, with the consent of the major part of the freemen, shows that it was not intended to give the allottees a freehold. If this is not a freehold, what estate is it? It clearly is not an estate for years: nor is it an estate at the absolute and uncontrolled will of the lessors. It is suggested that it is a sort of parliamentary estate, floating between an estate of freehold and an estate at will. It would manifestly be very inconvenient so to hold; and I do not see how we can consistently with the rules of law hold this to be any other than an estate of freehold. It is plain, according to the case of Davis, app., Waddinf/fnn. resp., that, if the deputies had 192 BEESON V. BURTON [CHAP. V the power at any moment to turn out the allottees, their estate would have been a mere estate at will, and would not have conferred a vote. But this is not an estate held at the uncontrolled will of the grantors, but at the will of strangers, or subject to the consent of the deputies and the majority of the freemen, of whom the allottee is one. The estate, therefore, is held upon an uncertain event, for, it is uncertain whether the majority will consent to a sale or exchange; and there- fore the case falls within the definition of an estate for life in Co. •' Lit. 42 a. Consequently the claimant had a freehold interest, in respect of which he was entitled to be registered. Maule, J. I also am of opinion that the claimant in this case was rightly held by the revising barrister to be entitled to a freehold in- terest in his allotment. It is well established that an estate which may last for a man's life is, ordinarily, a freehold. An estate for ^life, determinable on an event which is not in the power of the lord from whom it is held, is a freehold. An estate determinable on a condition, which condition cannot arise at the absolute will of the lord, is a freehold. Here, the duration of the estate depends upon the will of the tenant, which will not prevent its being an estate of freehold : but the estate is capable of being determined upon an event of a very special kind happening, — on the resolution of the deputies to sell or exchange the land, and the concurrence of the majority of the freemen. That is an event which is not dependent on the will of the lord. There is not that arbitrary power of re- moval which will prevent the estate from being a freehold. It is as much out of the power of the lord to determine the estate, as if his concurrence were not necessary at all. His concurrence being neces- sary, does not make the concurrence of the others less independent of him. An estate which may last for the life of the grantor, though determinable under circumstances like those of this case, is clearly such an estate as according to the older authorities is an estate of freehold. The case of Davis, app., Waddington, resp., appears to have been well decided. The party claiming to vote there, was appointed by the trustees to be an inmate of the almshouses, so long as they should think fit to allow him to continue there. It was held, quite conformably wdth the general law, that that did not constitute a freehold interest : and it is equally clear that the interest the party in this case has is a freehold. Williams, J. 1 am of the same opinion. This is clearly an estate of freehold, inasmuch as it is for an uncertain interest, which may last for the life of the party, and is not confined to the will of ^ the grantors. It comes, therefore, within the examples given in some of the older cases. TALForRD, J., concurred. Decision affirmed, uriih costs} ^ See Gilmore v. Hamilton, 83 Ind. 196; Western Transp. Co. of Buffalo V. Lanstng. 49 N Y. 499; Warner v. Tanner, 38 Ohio St. 118; Serjeant Mann- ing's note to Davis v. Waddington, 7 M. & G. 37. 45-49; Fernie v. Scott, L. R 7 C P. 202. SECT. IV] ESTATES FOR YEARS AND AT WILL 193 SECTION IV ESTATES FOR YEAES AND AT WILL ^ Lit. § 70. Also, if a man make a deed of feoffment to another of certain lands, and delivereth to him the deed, but not livery of seisin; in this case he, to whom the deed is made, may enter into the land, and hold and occupy it at the will of him which made the deed, because it is proved by the words of the deed, that it is his will that the other should have the land; but he which made the deed may put him out when it pleaseth him. Lit. § 740. But where such lease or grant is made to a man and to his heirs for term of years, in this case the heir of the lessee or the grantee shall not after the death of the lessee or the grantee have that which is so let or granted, because it is a chattel real, and chat- tels reals by the common law shall come to the executors of the grantee, or of the lessee, and not to the heir.^ Co. Lit. § 45b. Words to make a lease be, demise, grant, to farm let, betake; and whatsoever word amounteth to a grant may serve to make a lease. In the king's case this word Committo doth amount sometime to a grant, as when he saith Commissimus W. de B. officium seneschalsioe, &c., quamdiu nobis placuerit, and by that word also he may make a lease: and therefore a fortiori a common. person by that word may do the same. " Of certain years." For regularly in every lease for years, the term must have a certain beginning and a certain end; and herewith agreeth Bracton, terminus annorum certus debet esse et determinatus. And Littleton is here to be understood, first, that the years must be certain when the lease is to take effect in interest or possession. For before it takes effect in possession or interest, it may depend upon an uncertainty, viz. upon a possible contingent before it begin in pos- session or interest, or upon a limitation or condition subsequent. Secondly, albeit there appear no certainty of years in the lease, yet if by reference to a certainty it may be made certain it sufficeth, Quia id cerium est quod certum reddi p&test. For example of the first. If A., seised of lands in fee, grant to B. that Avhen B. pays to A. XX shillings, that from thenceforth he shall liave and occupy the land for 21 years, and after B. pays the xx. shillings, this is a good lease for 21 years from thenceforth. For the second, if A. leaseth his land to B. for so many years as B. hath in the manor of Dale, and B. hath then a term in the manor of Dale for 10 years, this is a ^ For additional authorities on these subjects and on estates from year to year, see the followinfi chapter. - On the limitation of a term to one and the heirs of his bodv, see Feame, C. R. 460-463. 194 ESTATES FOR YEARS AND AT WILL [CHAP. V good lease by A. I© H. of the land of A. for 10 years. If the parson of D. make a lease of his glebe for so many years as he shall be par- son there, this cannot be made certain by any means, for nothing is more uncertain than the time of death, Terminus vitce est incertus, et licet nihil certius sit morte, nihil tamen incertius est hora mortis. But if he make a lease for three years, and so from three years to three years, so long as he shall .be parson, this is a good lease for six years, if he continue parson so long, first for three years, and after that for three years; and for the residue uncertain. If a man maketh a lease to I. S. for so many years as I. ]^. shall name, this at the beginning is uncertain ; but when I. N. hath namied the years, then it is a good lease for so many years. A man maketh a lease for 21 years if I. S. live so long; this is a good lease for years, and yet is certain in uncertainty, for the life of I. S. is uncertain. See many excellent cases concerning this matter put in the said Case of the Bishop of Bath ayid Wells. By the ancient law of England, for many respects a man could not have made a lease above 40 years at the most, for then it was said that by long leases many were prejudiced, and many times m.en dis- inherited, but that ancient law is antiquated.^ Co. Lit. 55a. It is regularly true, that every lease at will must in law be at the will of both parties, and therefore when the lease is made, to have and to hold at the will of the lessor, the law implieth it to be at the will of the lessee also ; for it cannot be only at the will of the lessor, but it must be at the will of the lessee also. And so it is when the lease is made to have and to hold at the Avill of the lessee, this must be also at the will of the lessor;- and so are all the books that seem prima facie to differ, clearly reconciled There is an express ouster, and implied ouster; an express, as when the lessor cometh upon the land, and expressly forewarneth the lessee to occupy the ground no longer; an implied, as if the lessor without the consent of the lessee enter into the land and cut down a tree, this is a determination of the will; for that it should otherwise be a wrong in him, unless the trees were excepted, and then it is no determination of the will, for then the act is lawful, albeit the will doth continue. If a man leaseth a manor at will whereunto a com- mon is appendant, if the lessor put in his beasts to use the common, this is a determinat4on of the will. The lessor may by actual entry into the 'ground determine his will in the absence of the lessee, but by words spoken from the ground the will is not determined until the lessee hath notice. No more than the discharge of a factor, attorney, or such like, in their absence, is sufficient in law until they have notice thereof.^ 1 See Stimson. Am. St. Law. § 1341. 2 But see 1 Tiffanv. Real Prop.. 2d ed., § 61c. 2 2 Bl. Com. 160, 161. "A fourth species of estates, defeasible on condi- tion subsequent, are those held by statute merchant, and statute staple; which SECT. IV] ESTATES FOR YEARS AND AT WILL 195 are very nearly related to the vivum vadium before mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained. For both the statute merchant and statute staple are securities for money; the one entered into before the chief magistrate of some trading town, pursuant to the Statute 13 Edvv. I De Mercatoribus, and thence called a statute merchant ; the other pursuant to the Statute 27 Edw. III. c. 9^ before the mayor of the staple, that is to sa.y, the grand mart for the principal commodities or manu- factures of the kingdom, formerly held by Act of Parliament in certain trad- ing towns, from whence this security is called a statute staple. They are both, I say, .securities for debts acknowledged to be due; and originally per- mitted only among traders, for the benefit of commerce; whereby not only the body of the debtor may be imprisoned, and his goods .seized in satisfac- tion of the debt, but also his lands may be delivered to the creditor, till out of the rents and profits of them the debt may be satisfied; and, during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of a statute staple, acknowledged before either of the chief justices, or (out of term) before their substitutes, the mayor of the staple at West- minster and the recorder of London; whereby the benefit of this mercantile transaction is e.xtended to all the king's subjects in general, by virtue of the Statute 23 Hen. VIII. c. 6, amended by 8 Geo. I. c. 25, which directs such recognizances to be enrolled and certified into chancery. But these by the Statute of Frauds, 29 Car. II. c. 3. are only binding upon the lands in the hands of bona fide purchasers, from the day of their enrolment, which is ordered to be marked on the record. "Another similar conditional estate, created by operation of law, for secur- ity and satisfaction of debts, is called, an estate by elegit. What an elegit is, and why so called, will be explained in the Third Part of these Commen- taries. At present I need only mention that it is the name of a writ, founded on the Statute of Westm. 2 (13 Edw. I c. 18,) by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one half of the defendant's land and tenements, to be occupied and enjoyed until his debt and damages are fully paid; and during the time he so holds them, he is called tenant by elegit. It is easy to ob.serve, that this is also a mere conditional estate, defeasible as soon as the debt is levied. But it is remarkable that the feudal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the Statute of Quia Emptores (18 Edw. I.), it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the Statute, therefore, of Westm. 2, permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the Statute De Mercatoribus (13 Edw. I.), passed the same year, the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though one halj of them was liable to be taken in execution for any other debt of the owner. " I shall conclude what I had to remark of the.^e estates by statute mer- chant, statute staple, and elegit, with the observ^ation of Sir Edward Coke (1 Inst. 42. 43): 'These tenants have uncertain interest.s in lands and tene- ments, and yet they have but chattels and no freeholds; ' (which makes them an exception to the general rule) ' because though they may hold an estate of inheritance, or for life, rit liberum tenemcntum, imtil their debt be paid; yet it shall go to their executors: for ut is similitudinary ; and though to re- cover their estates, they shall have the same remedy (by assize) a.s^ a t(m- ant of the freehold shall have, yet it is but the similitude of a freehold, and nullum simile est idem.' This indeed only proves them to be chattel interests, 196 ESTATES FOR YEARS AND AT WILL [CPIAP. V becauti v. Larrnbee, 48 Me. 570; Estey v. Baker, 50 Me. 325; Seavey v. Cloiidman, 90 Me. 536. 224 CURTIS V. GALVIN [CHAP. VI CURTIS V. GALVIN 1 All. (Mass.) 215. 1861. ToET for entering the plaintiff's dwelling-house, and removing his furniture and ejecting his family therefrom. The defendants proved, in justification, that the defendant Galvin, being the owner of the premises, conveyed them by deed to the other defendant Carney, and that, eight days before the acts complained of, Carney informed the plaintiff' thereof, and gave him notice to quit. At the trial in the Superior Court, Rockwell, J., directed a nonsuit, and the plaintiff alleged exceptions. The facts appear more fully in the opinion. BiGELOw, C. J. It appears by the testimony of the plaintiff that, in October, 1858, prior to the alleged trespass, the premises from which he was ejected belonged to Galvin. Inasmuch as he offered no evidence of any right to their occupation created by an instrument in writing, he could have no greater title or interest therein than an estate at will. Rev. Sts. c. 59, § 29. On the facts stated in the ex- ceptions, this is the most favorable vievv which can be taken of his right to the possession and enjoyment of the premises, prior to the conveyance to the defendant Carney. But, on a familiar and well- settled rule of law, this tenancy at will was determined, and the plaintiff became a tenant by sufferance only by the conveyance from Galvin to Carney, the other defendant, on the 9th of said October. Howard v. Merriam, 5 Cush. 563, 574; McFarland v. Chase, 7 Gray, 462. The evidence offered by the plaintiff to impeach this conveyance, and to show that it was colorable, and was in fact made for the pur- pose of enabling the said Galvin to eject the plaintiff from the prem- ises, was rightly rejected. The deed was a valid one as between the parties. It passed the title to the premises. The grantor had no power to compel the grantee to surrender the estate conveyed to him. It violated the legal rights of no person. It is true that a creditor of the grantor, who could show that he was thereby hindered, delayed and defrauded of the collection of his debt, or a subsequent pur- chaser without notice, who could prove that the deed was made with intent to defraud him, might impeach the conveyance, and set it aside on the well-settled principles of the common law as declared in Sts. 13 Eliz. c. 5, § 2, and 27 Eliz. c. 4, § 2. But in such case the deed is valid between the parties; and, with this exception, we know of no rule of law which restrains the owner in fee from the free and unfettered alienation of his estate. It is only an exercise of a legal right, which works no injury to any one, least of all to a person who holds under the grantor. He took his estate or interest in the premises subject to all the legal rights of the owner therein, and must be presumed to have known them, and to have assented SECT. l] PERRY V. ROCKLAND, ROCKPORT LIME CO. 225 thereto. To him, therefore, the maxim volcnfi nonfii injuria is appli- cable. Tlu^ determination of an estate at will, by an alienation by the owner of tin; reversion, is one of tlie legal incidents of such an estate, to which the right of the lessee therein is subject, and by which it may be as effectually terminated as by a notice to quit given according to the requisitions of the Statute. Indeed it is difficult to see upon what ground a deed can be held void, as being colorable or fraudulent, which is made in the exercise of a legal right, and which has no effect on the rights of a third party, who seeks to set it aside, other than that which was necessarily incident to the estate which he held in the premises. The dictum of the court in Howard v. Merriam, uhi supra, cited by the counsel for the plaintiff, was not essential to the decision of that case, and cannot be supported on principle or authority. It follows that, after the conveyance of the demised premises, the plaintiff became tenant by sufferance only, and could not maintain this action of tort in the nature of trespass quare clausam against the defendant Carney, who was the grantee in the deed ; nor against the other defendant, who acted under his authority in attempting to eject the plaintiff from the premises. At the time of action brought, it was not the plaintiff's close. A tenant by sufferance holds pos- session wrongfully. Co. Lit. 57 b, 271 a. The defendants had a full right of entry. Meader v. Stone, 7 Met. 147. Exceptions overruled.^ PEREY AND OTHERS v. ROCKLAND AND ROCKPORT LIME CO. 94 Me. 325. 1900. On Report. This was a bill in equity, heard on bill, answer and proofs to compel the defendant, who is the present owner of a lime quarry, known as the Blackington farm and quarries, in Thomaston, to 1 " Estates at will may be determined by either party by three months' notice in writing for that purpose given to the other party; and if the rent reserved is payable at periods of less than three months, the time of such notice shall be sufficient if it is equal to the interval between the days of payment; and in case of neglect or refusal to pay the rent due from a tenant at will, fourteen days' notice to quit, given in writing by the land- lord to the tenant, shall be sufficient to determine the tenancy." Massa- chusetts. Gen. Laws (1920). C..186, § 12. modelled on Acts 1825. c. 89, § 4. For temporary relief to tenants, see Acts 1919, c. 257; Acts 1920, cc. 538, 554; 555; 577; 578. See Pratt v. Farrar, 10 All. (Mass.) 519; DeWoIfe v. Roberts, 229 Mass. 410; Gavin v. Durdc', Co., 229 Mass. 576; Newman v. Su.ssma7i, 131 N. E. (Mass.) 926. Note — As to tenancies for periods of less than a year, see Steffens v. Earl 40 N. J. L. 128; Bowcn v. Andcrsun, [18911 1 Q. B.164; 1 Tavlor Landl. and Ten., 9th ed., § 57; 1 Tiffany, Landl. and Ten., pp. 132-138. 226 PERRY V. ROCKLAND, ROCKPORT LIME CO. [CHAP. VI make, execute, acknowledge and deliver to tlic pliiintiff.s a lease of the same for the term ending April 16, 1906. The facts appear in the opinion. Sitting : Wiswell, C. J., Emery, Haskell, Whitehouse, Strout, Fooler, JJ. Strout, J. On April 16th, 1898, the then owners of a lime- rock quarry, leased a portion "of it to the plaintiffs for the term of one year from that date. The rights of the parties to this suit depend upon the clause in the lease, which reads : — " The term of this lease shall be one year from the sixteenth day of April, A. D. 1898, with the privilege to the said Perry Brothers of renewing the same on the same terms for one, two, three, four, five, six, or seven years additional." Neither during the term of one year, nor at its termination, did the plaintiffs give any notice to the lessors of an intention to renew, or continue occupancy of the quarry, for either of the periods as to which they had an election. But they did in fact remain in posses- sion thereafter, to which the lessors made no objection. Shortly before the expiration of the year's term, plaintiffs removed to this quarry and set up a boiler in place of one before used. The rent reserved was four cents net stumpage per cask for all good stock quarried, and was payable on the first day of January each year. Kent has been paid to the first day of January, 1900, to the then owners. In May, 1899, the title to three-fourths of the quarry became vested in William T. Cobb, trustee, who by his deeds of June 7th and June 26th, 1899, conveyed it by quitclaim to the Penobscot Bay Manufacturing Company, which company conveyed it by warranty deed to the defendant on January 18th, 1900. And on the fifth day of March, 1900, the remaining one-fourth was con- veyed to the defendant. The deeds to Cobb contained the provision : " This conveyance is subject to a lease of a portion of said quarry and real estate from this grantor to Perry Brothers, dated April 16th, 1898, and all right, title and interest in and to said lease, together with the rentals therefrom accruing after June 1, 1899, are hereby assigned and transferred to the said Cobb, as trustee." A similar provision is contained in the deeds from Cobb to the Penobscot Bay Manu- facturing Company. In the deed from that company to the de- fendant is the clause : — "And also subject to any existing rights under a writing or lease to Perry Brothers, dated April 16, 1898, and all right, title and interest of the said Penobscot Bay Manu- facturing Company in, to, or under and by virtue of said writing or lease, together with the rentals hereafter accruing therefrom, are hereby assigned, set over, transferred and conveyed to the grantee." No similar provision was contained in the deed of one-fourth from Frohock and others. SECT, ij PERRY V. ROCKLAND, ROCKPORT LIME CO. 227 The defendants therefore must be regarded as taking title with notice of whatever rights, if any, plaintiffs then had, but their rights were not thereby enlarged. Under the lease, plaintiffs had the right to renew or extend the lease for one, two, three, four, five, six or seven years at their option. They had one right of election and only one, to be exercised by the will of the plaintiffs communicated to the lessors or the then owners of the reversion. Cunningham v. Fattee, 99 Mass. 252. Good faith, fair dealing, as well as the law, required that the elec- tion should be made during the original term of the lease, or at its expiration. Renaud v. Daskam, 34 Conn. 512; Thiehaud v. First Nat. Banl, 42 Ind. 222; Darling v. Hohan, 53 Mich. 599; Shamp V. White, 106 Cal. 221. Notwithstanding the fact that, shoi'tly before the expiration of the specific term of the lease, plaintiffs placed in the quarry another boiler, the evidence satisfies us that neither at that time, nor at the expiration of the year, had the plaintiffs arrived at the conclu- sion to have their term extended for any definite time. . . . Nine months after the expiration of the year's term in the lease, plaintiffs notified defendant in writing that they had elected to continue the lease, but not specifying for what term. Enclosed with this notice was draft of a lease for seven years, which plain- tiffs asked to have executed. Defendant declined to execute the proposed lease, and distinctly claimed that plaintiffs' option termi- nated at the end of the first year; and that plaintiffs having failed to exercise their option, their right had expired, and claimed posses- sion of the mine on April 16th, 1900. This notice of the exercise of plaintiffs' option was too late. The term of the lease had ex- pired. Plaintiffs had failed to exercise seasonably their option, and the right to do so had terminated, yet plaintiffs remained in possession and were not ejected by the then owners, as they might have been, and rent was paid to the then owners and accepted by them until January 1st, 1900. No rent has been paid to or accepted by defendant. It is strenuously argued that by thus holding over by consent of the reversioner, the plaintiffs had exercised their election and per- fected their right to an extended term for the extreme period of seven years. The cases cited do not sustain such broad claim. In • Kramer v. Cool-, 7 Gray 550, the lease gave an election to lessee to extend for a further definite term at an increased rental. The tenant held over and paid two quarters rent at the increased rate. This was rightly held to justify the inference of election. In Iler- sey V. Gihlett, 18 Beavan, 174, Hughes agreed to let and Hersey to take a house " as a yearly tenant," and " should Hersey wish for a lease of the premises, Hughes will grant the same for seven, four- teen or twenty-one years." Hersey occupied for seven years, and then called for a lease, and filed a bill for specific performance. It 228 PERRY V. ROCKLAND, ROCKPORT LIME CO. [CHAP. VI was held that the contract created a tenancy from year to year, Avith an option to the lessee to ask for a lease from the beginning for twenty-one years, determinable at his option for seven or fourteen. In some jurisdictions it is held that, where the lease authorized a renewal or extension for a definite term, holding over by consent amounts to an election to hold for the extended term. So held in Terstegge v. First German Ben. Society, 92 Ind. 82; Delashman v. Berry, 20 Mich. 292; Insurance & Law Building Co. v. Missouri BanJc, 71 Mo. 58; McBrier v. Marshall, 126 Pa. St. 390. But the Indiana court held in Whetstone v. Davis, 34 Ind. 510, and Folley V. Giles, 29 Ind. 114, that where the lease provided for a term of one year, with the privilege of the premises for two or three years, holding over after the first year operated only as an election to hold for one year. In Buckland v. Fapillon, 2 Law Reports, Chancery Appeals, 67, there was an agreement to let cer- tain premises for three years, and also when called upon by the tenant to grant him a lease for three years, seven years or the whole term. Under that agreement it was held that the option was not gone at the end of the three years. It could hardly have been held otherwise. Numerous cases are cited by counsel, to which we do not specifically refer, as they afford no additional aid in the solution of the question involved here. The insuperable difficulty in this case is, that the option to extend the lease was not for a definite period, but for any number of years not exceeding seven which the plaintiff should desire. If the holding over was evidence of an election, for how long a term was it? Sup- pose within the second year the tenant had vacated, could the land- lord recover rent for the seven years? Or would the tenant be allowed to say he elected to hold for one year only? Some courts make a distinction between a right to renew a lease, and the privilege of extension — treating the former as a covenant, requiring a new lease, and the latter, if the option is exercised, as a holding under the original demise.^ In this state, such distinction is not regarded; in either case, the additional term is treated as arising from the original demise. Willoughhy v. Atkinson Co., 93 Maine, 186.^ 1 See Renoud v. Daskam, 34 Conn. 512; City Coal Co. v. Marcus, HI Atl. (Conn.) 857; Hamby v. Georgia Iron Co., 127 Ga. 792; Vincent v. Laurent, 165 111. App. 397; Thiebaud v. Bank, 42 Ind. 212; Andrews v. Marshall Co., 118 Iowa 595; Grant v. Collins, 157 Ky. 36; Miller v. Albany Lodge, 168 Ky. 755; Lcavitt v. Maykel, 203 Mass. 506; Kuhlman v. Lemp Co., 87 Neb. 72. 88 Neb. 1; Huger v. Dibble, 8 Rich. L. (S. C.) 222; Whalen v. Manley, 68 W. Va. 328. 2 See Caley v. Thomquist, 89 Minn. 348; Insurance Co. v.' Bank, 71 Mo. 58; Kelso v. Kelly, 1 Daly (N. Y.) 419; Harding v. Seeley, 148 Pa. 20; Henry v. Bruhn, 110 Wash. 321. Authorities are collected in 29 L. R. A. N. S. 174 note; L. R. A. 1916 E. 1232 note, 1237 note. SECT. l] PERRY V. ROCKLAND, ROCKPORT LIME CO. 229 At common law under a lease for a year or a term of years, hold- ing over by the tenant, by consent of landlord, created a tenancy from year to year, and mere holding over without consent, a ten- ancy at sufferance. But under our statutes, holding over after expiration of the term creates a tenancy at will. Franklin Land Co. V. Card, 84 Maine, 532. Kendall v. Moore, 30 Maine, 330, was a case where under a lease for a year, the tenant held over about six months and paid one quarter's rent. The landlord claimed rent for the entire year, but the court held that the lessee was tenant at will, and not liable for rent beyond the time of his occupancy. The plaintiffs in this case failed to make seasonably an election to have the lease extended, and the term therefore ended on April 16th, 1899. Thereafterward they held the premises as tenant at will to the then owners. The conveyances of title to the defend- ant in January and March, 1900, terminated their tenancy and all right of possession. Seavey v. Cloudman, 90 Maine, 536. Defendant has never recognized the plaintiffs as its tenant. Their holding therefore is without right. Bill dismissed with costs.^ ^ But see Anderson v. Dodsworth, 292 111. 335; Falley v. Giles, 29 Ind. 114; Trustees oj Orphan House v. Hoyle, 79 Misc. (N. Y.) 301. Note. — On the constitutionality of recent statutes passed to ameliorate housing conditions, see BlocI: v. Hirsh, 256 U. S. ; Marcus Brown Hold- ing Co. v. Feldman, 256 U. S. ; 11 A. L. R. 1252 note. 230 HART V. WINDSOR [CHAP. VI sectio:n' II COVENANTS. AND HEREIN OF PERMISSIVE WASTE HARt\;. WINDSOR 12 M. & W. 68. 1843. Debt. — The declaration alleged, that whereas theretofore, to wit, on the 23d June, 1843, by a certain memorandum of agreement made and entered into between the plaintiff of the one part, and the defendant of the other part, the plaintiff agreed to let, and the de- fendant agreed to hire and take of the plaintiff, a certain messuage or tenevient and garden ground, in the said memorandum of agree- ment particularly mentioned and described, with the use of several fixtures and things therein, for the term of three years from the 24th of June then instant, at the yearly rent of £50, payable quar- terly, on the 29th of September, the 25th of December, the 25th of March, and the 24th of June, in each year of the said term, free from all deductions whatsoever ; the first payment thereof to be made on the 29th of September then next ensuing, the plaintiff paying all rates and taxes in respect of the said premises, and the defend- ant paying all personal rates and taxes; and the defendant, amongst other things, agreed to preserve the said messuage or tenement and premises in good and tenantable repair and condition, and to de- liver up the said messuage or tenement and premises in like repair and condition, together with all the keys, fixtures, and other things thereupon or belonging thereto, (reasonable wear and tear and damage by fire only excepted), at the end or other sooner deter- mination of the said term of three years, as by the agreement fully appears; by virtue of which said agreement the defendant then en- tered into and became possessed of the said messuage or tenement and premises, and was and continued possessed thereof from the said 24th of June, 1843, until and upon the 29th of September in the same year, when a large sum of money, to wit, 12/. lOs. of the rent aforesaid, for one quarter of a year of the said term, ending on the day and year last aforesaid, and then last elapsed, became and was due and payable from the defendant to the plaintiff, under and by virtue of the said agreement, and still is in arrear and unpaid to the plaintiff, whereby, &rc. Pleas: first, a traverse of the agreement stated in the declaration; secondly, that the said messuage or tenement was so demised and let to the defendant for the purpose of his inhabiting the same, and dwelling therein during the said term : and that before and at the SECT. II.] HART V. WINDSOR 231 time of making the said agreement, and also at the time when the defendant entered into and became possessed of the messuage or tenement and premises, as in the declaration alleged, and from thence until and at the time of the defendant's quitting, vacating, and abandoning the possession of the same, as hereinafter mentioned, the said messuage or tenement was not in a reasonable, fit, and proper state or condition for habitation or dwelling therein; and the same was then, and during all the time aforesaid, in that state and condition that the defendant could not reasonably inhabit or dwell therein, or have any beneficial use or occupation of the same, for and by reason of the same being greatly infested, swarmed, and overrun with noxious, stinking, and nasty insects, called bugs, and not for or by reason of any act, default, or omission of the defendant; and the defendant, before or at the time of his making the said agree- ment, had no notice or knowledge thereof ; and the defendant after- wards, and after he so entered and became possessed of the said mes- suage or tenement, and before the said sum of 121. 10 s., or any part thereof, became due or payable, to wit, on the 25th of June, 1843, discovered and first had notice of the said state and condition of the said messuage or tenement, and of the same being so infested, swarmed, and overrun Avith bugs as aforesaid; and thereupon the de- fendant upon such discovery and notice, and before the said sum of 12/. 10s., or any part thereof, became due or payable, to Avit, on the day and year last aforesaid, quitted, vacated, and abandoned the possession, and wholly ceased and abstained from all further occu- pation or possession of the said messuage or tenement and premises so demised as aforesaid, and then gave notice of the premises to the plaintiff of the defendant's having so quitted, vacated, and abandoned the possession of the said messuage or tenement and premises, and suffered and permitted him to take and have and retain, and he could and might have taken and retained, possession of the said messuage or tenement and premises; and the defendant from thence hitherto hath ceased all further possession, use, or occupation of the said messuage or tenement and premises, and not derived any benefit therefrom; and that at and from the time of the commencement of the said term, until the time of his so quitting, vacating, and aban- doning possession of the said messuage or tenement and premises, and ceasing all further occupation thereof, he had no beneficial use or occupation whatever of the same. Verification. Thirdly, that he was induced and persuaded to make, and did make and enter into, the said agreement and promise in the said declaration mentioned, by the fraud, covin, and misrepresentation of the idaintiff and others in collusion with him. Verification. Replication to the second plea, dc injuria: and to the third, that the defendant was not induced to make, and did not make or enter into the said agreement by the fraud, covin, or misrepresentation in the plea mentioned. 232 HART V. WINDSOR [CHAP. VI Tlie cause was tried before Rolfc, B., at the sittings in Hilary Term, 1844, wheu the facts alleged in the second plea having been fully proved, a verdict was found for the defendant on the issue raised by that plea. C. G. Addison, on a subsequent day in the same term, obtained a rule for judgment non obstante veredicto, on the ground that the facts stated in the plea were no answer to the action. The judgment of the Court was now delivered by Parke, B. — This was a case very fully and ably argued a few days ago, upon shewing cause against a rule for judgment non obstante veredicto. The declaration is not for use and occupation, but on an agreement in the nature of a lease. [His Lordship here read the declaration and the second plea.] The question is, whether the plea contains substantially a good answer to the plaintiff's claim for a quarter's rent, becoming due after the defendant quitted. On the part of the plaintiff, it was insisted that it did not, for several reasons ; the principal one being, that where there is an actual demise of the unfurnished fabric of a specific messuage for a term, there is no contract implied by law on the part of the lessor, that the messuage was at the time of the demise, or should be at the com- mencement of the term, in a reasonably fit and proper state and con- dition for habitation (that is, so far as concerned the fabric), though it w'as demised and let for the purpose of immediate habita- tion. As we are all of opinion in favour of the plaintiff upon this objection, it is unnecessary to observe upon the others in detail; but it may not be useless to remark, that two of them are very impor- tant, and have not been satisfactorily answered; viz., that if such a contract is implied by law, it would be no defence, Avhere the tenant has actually occupied; his remedy would be by a cross action ; and to constitute a valid defence on the ground of the breach of this contract, the law must give also a right to abandon the lease upon the breach of it; that is, to make a defence, the law must imply, not merely a contract, but a condition that the lease should be void if the house was unfit for occupation. The cases cited from Brooke's Abr. " Dette," 18 and 72, are decisive, that where the lessor is bound by the custom of London, or by covenant, to repair, and does not, the tenant cannot quit. The other objection, which we think right to notice, is, that in this case the house and some garden ground are both demised; and to make the plea good, it must be held, that, if a messuage be taken for habitation, and land for occu- pation, by the same lease, there is such an implied contract for the fitness of the house for habitation, as that its breach would author- ize the tenant to give up both. Whether, if there were such a con- tract or condition implied by law, generally, it would be implied in this case, w^here the defendant agrees to preserve \\\ tenantable con- dition, is a question on which it is quite unnecessary to enter. The point to be considered, then, is, whether the law implies any contract as to the condition of the property demised, where there SECT. II.] HART V. WINDSOR 233 is a lease of a certain ascertained subject, being real property, and that lease is made for a particular object. The question relates to a case of actual demise of a specific tene- ment, and we have not to inquire what the obligations of a party would be under an executory agreement, to procure a lease of some house for the habitation of another ; nor whether the defendant would not be exonerated on the ground of fraud in the plaintiff, if the plain- tiff knew of the defect in the house himself, and that the defendant would not have taken the house if he knew it; nor have we to consider whether the defendant would be responsible, if at the time of the demise there was no house at all - — he may be, by reason of the implied contract for title to a house, not the land merely: which imports that the subject of the contract exists. The simple question is, what is the implied obligation on the part of the landlord to his tenant, under a lease of a house for years. Considering this case without reference to the modern authorities, which are said to be at variance, it is clear that from the word " de- mise," in a lease under seal, the law implies a covenant, in a lease not under seal, a contract, for title to the estate merely, that is, for quiet enjoj'ment against the lessor and all that come in under him by title, and against others claiming by title paramount during the term; and the word "let," or any equivalent words, (Shepp. Touch 272), which constitute a lease, have, no doubt, the same effect, but not more. Shepp. Touch. 165, 167. There is no author- ity for saying that these words imply a contract for any particular state of the property at the time of the demise; and there arc many, which clearly shew that there is no implied contract that the property shall confinue fit for the purpose for which it is demised; as the tenant can neither maintain an action, nor is he exonerated from the payment of rent, if the house demised is blown down, or destroyed by fire, Monk v. Cooper, 2 Stra. 763, Balfour v. Weston, 1 T. R. 310, and Ainsley v. Rutfer there cited; or gained upon by the sea, Taverner's case, Dyer, 56 a ; or the occupation rendered impracticable by the king's enemies, Paradine v. Jane, Alleyn, 26; or where a wharf demised was swept away by the Thames,' Carter V. Cummings, cited in 1 Chanc. Ca. 84. In all these cases, the estate of the lessor continues, and that is all the lessor imi)liodly warrants. It appears, therefore, to us to be clear upon the old authorities, that there is no implied warranty on a lease of a house, or of land, that it is, or shall be, reasonably fit for habitation or cultivation. The implied contract relates only to the estate, not to the condi- tion of the property. But the defendant's counsel rely upon some niodcni decisions in support of the positions wliicli they are to maintain. It is not neces- sary to refer to the cases on tlu' im])lied warranty of cliattels. further than to say that the rule of tlie common law, wliicli prevails in gen- 234 HART V. WINDSOR [CHAP. VI eral Co. Lit. 102 a., that there is no implied warranty on the sale of specific goods, has had exceptions engrafted upon it, where the goods are ordered from a manufacturer, or tradesman, who impliedly engages to use a proper degree of skill and care, in constructing or supplying them. Such are the cases of Brown v. Edgington, 2 Man. & Gr. 279; 2 Scott K E. 496, Shepherd v. Pyhus, 3 Man. & Gr. 868 ; 4 Scott N. K. 434, and others. These have no bearing on the present case. But the defendant chiefly rests his case upon the decision of Smith V. Marrahle, 11 M. & W. 5. My judgment in that case cer- tainly proceeded upon the authority of two previous decisions, which, though they contained a novel doctrine, had not been questioned in "Westminster Hall, and had received, to a certain degree, the sanction of the Lord Chief Justice Tindal, in a subsequent case. Those cases were Edwards v. Etherington, before Lord Tenterden, and afterwards the Court of King's Bench, Ry. & M. 268, and 7 D. & R. 117, and CoUins V. Barrow, 1 M. & Rob. 112; and the last, that before Lord Chief Justice Tindal, Avas Salisbury v. Marshall, 4 Car. & P. 65; and I thought they established the doctrine, not merely that there was an implied contract on the part of the lessor, that the house demised should be habitable, but an implied condition, that the lease should be void if it w^ere not, and the tenant chose to quit. From the full discussion which those cases have now undergone, on the present argument, and that in the recent case of Sutton v. Temple, I feel satisfied they cannot be supported, if the reports of them are correct ; and we all concur in opinion that they are not law, — an opinion strongly intimated, in the case of Sutton v. Temple, in which this Court decided, that there was no implied war- ranty of condition or fitness for a particular purpose on a lease of aftermath. We are under no necessity of deciding in the present case, whether that of Smith v. Marrahle be law or not. It is distinguishable from the present v^ase on the ground on which it was put by Lord Abinger, both on the argument of the case itself, but more fully in that of Sutton- V. Temple; for it was the case of a demise of a ready- furnished house for a temporary residence at a watering-place. It was not a lease of real estate merely. But that case certainly can- not be supported on the ground on which I rested my judgment. We are all of opinion, for these reasons, that there is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let. The princi- ples of the common law do not warrant such a position; and though, in the case of a dwelling-house taken for habitation, there is no apparent injustice in inferring a contract of this nature, the same rule must apply to land taken for other purposes — for building upon, or for cultivation; and there would be no limit to the incon- venience which would ensue. It is much better to leave the parties SECT. II] GOTT AND FARQUHARSON V. GANDY 235 in every case to protect their interests themselves, hy proper stipu- lations, and if they really mean a lease to be void by reason of any unfitness in the subject for the purpose intended, they should ex- press that meaning. Judgment for the plaintiffs GOTT A^D FAKQUHARSON v. GAXDY 2 E. & B. 845. 1853. Count : that plaintiffs were tenants to defendant of certain work- shops, buildings and premises from year to year; and, during the tenancy, and whilst plaintiffs were in the occupation of the premises as such tenants to defendant, " a certain chimney, parcel of the said premises, without any neglect or default on the part of the plain- tiffs, became and was in an insecure state and condition, and in danger of falling from want of substantial repairs in that behalf; of all which the plaintiffs then and long before the day herein- after mentioned gave notice to the defendant. Yet the defendant, not regarding his duty in that behalf, did not nor would at the time of such notice, or in a reasonable time thereafter, or at any time," repair the chimney, which afterwards, and during the tenancy, on 27th Decemher. 1852, fell, and damaged j^laintiff's goods. Demurrer. Joinder. Lord Cambell,- C. J. I am of opinion that this declaration is bad in substance. Unless the declaration shews a state of things from which the law implies a duty to do those things, which the de- fendant has not done, the general allegation " the defendant, not re- garding his duty " &c., goes for nothing. Now let us see what are the facts alleged. They are these : the defendant was landlord of premises which were let to the plaintiffs f I'om year to year : during the tenancy the premises were in a dangerous state for want of sub- stantial repairs : the defendant had notice from the plaintiffs, and was requested to repair them, and did not do so. Whence does the legal duty to repair these premises on request arise? There is no allegation of any contract to do substantial repairs. It lies therefore on the counsel of the plaintiffs, who are actors, to estab- lish, on authority or on principle, that this obligation results from the relation of landlord and tenant. Mr. Russell can produce no 1 Rochr!^ V. Timmons, 28 Ind. App. 578; Rowr v. H unking, 135 Mass. 380; Daly V. Wij^e, 132 N. Y. 306: Wood v. Car.^on. 257 Pa. 522; St. George Man- sion.H V. Hetherington, 42 Ont. L. Rep. 10. 4 A. L. R. 1453 note, aceord. Compare Gatcly v. Campbell, 124 Cal. 520; Pratt v. Graftnn Eleetrie Co., 182 Mass. 180; Gri'jfjn v. Freeborn. 181 Mo. App. 203; Clark v. Sharpe, 76 N. H. 446; Keate.^ v. Cadogan, 10 C. B. 591; Stanton v. Soutkwiek, [19201 2 K. B. 642; Stat. 9 Edw. 7, c. 44. §§ 14, 15; 21 Col. L. Rev. 261. Contra. Louisiana Civil Code, §§ 2692-2095. 2 The concurring opinions of Coi.ehidce and Erle. JJ.. are omitted. 236 INGALLS AND ANOTHER V. HOBBS [CHAP. VI authority in bis favour, not even a dictum. Aiul I have heard no leo'al principle from which it would follow that the landlord was bound to repair the premises. It is clear to my mind that, though, in the absence of an express contract, a tenant from year to year is not bound to do substantial repairs, yet, in the absence of an express contract, he has no right to compel his landlord to do them. Judgment for defendant} INGALLS AND ANOTHER v. HOBBS 156 Mass. 348. 1892, Contract, to recover five hundred dollars for use and occupation, during the summer of 1890, of a house in Swampscott. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed statement of evidence. Knowlton, J. This is an action to recover five hundred dollars for the use and occupation of a furnished dAvelling-house at Swamp- scott, during the summer of 1890. It was submitted to the Superior Court on what is entitled an " agreed statement of evidence," by which it appears that the defendant hired the premises of the plain- tiffs for the season, as a furnished house, provided with beds, mat- tresses, matting, curtains, chairs, tables, kitchen utensils, and other articles, which were apparently in good condition ; and that when the defendant took possession it was found to be more or less infested with bugs, so that the defendant contended that it was unfit for habitation, and for that reason gave it up and declined to occupy it. The agreed statement concludes as follows : " If, under the above circumstances, said house was not fit for occupation as a furnished house, and, being let as such, there Avas an implied agreement or warranty that the said house and furniture therein should be fit for use and occupation, judgment is to be for the defendant, with costs; if, however, under said circumstances, said house was fit for occupa- tion as a furnished house, or there was no such implied agreement or warranty, judgment is to be for the plaintiffs, in the sum of five hundred dollars ($500), with interest from date of writ, and costs." Judgment was ordered for the defendant, and the plaintiffs appealed to this court. The agreement of record shows that the facts were to be treated 1 Little Rock Ice Co. v. Consumers Ice. Co., 114 Ark. 532; Milk v. Swanton, 222 Mass. 557; Conahan v. Fisher, 233 Mass. 234: Petz v. Voigt Brewing Co., 116 Mich; 418; Rheims v. DoUey, 93 Misc. (N. Y.) 500; Smith- field Co. V. Coley-Bardin, 156 N. C. 255, accord. Compare Doyle v. Union Pac. Ry. Co., 147 U. S. 413; Valin v. .Jewell. 88 Conn. 151; Me.serole v. Hoyt, 161 N. Y. 59; May v. Gillis, 169 N. Y. 330; Floi/d-Jones v. Schaan. 129 App. Div. (N. Y.) 82; Horton v. Early, 39 Okl. 99; Auer v. Vahl, 129 Wis. 635. Contra, Louisiana, Civil Code. §§ 2692-2695. SECT. II ] INGALLS AND ANOTHER V. HOBBS 237 by the Superior Court as evidence from whieli inferences of fact miglit be drawn. The only ^' matter of law apparent on the record," which can be considered on an appeal in a case of this kind, is the question whether the judgment is warranted by the evidence. Pub. Sts. c. 152, § 10. Charlton v. Donnell, 100 Mass. 229. Fitzsimmons V. Carroll, 128 Mass. 401. Old Colony Railroad v. Wilder, 137 Mass. 536. Mayhem v. Durfee, 138 Mass. 584. Eecht v. Batcheller, 147 Mass. 335. Rand v. Hanson, 154 Mass. 87. The facts agreed warrant a finding that the house was unfit for habitation when it was hired, and we are therefore brought directly to the question whether there was an implied agreement on the part of the plaintiffs that it was in a proper condition for immediate use as a dwelling-house. It is well settled, both in this Commonwealth and in England, that one who lets an unfurnished building to be occupied as a dwelling-house does not impliedly agree that it is fit for habitation. Button v. Gerrish, 9 Cush. 89. Foster v. Peyser, 9 Cush. 242. Stevens v. Pierce, 151 Mass. 207. Sutton v. Temple, 12 M. & W. 52. Hart v. Windsor, 12 M. & W. 68. In the absence of fraud or a covenant, the purchaser of real estate, or the hirer of it, for a term however short, takes it as it is, and determines for him- self whether it will serve the purpose for which he wants it. He may, and often does, contemplate luaking extensive repairs upon it to adapt it to his wants. But there are good reasons why a different rule should apply to one who hires a furnished room or a furnished house for a few days or a few weeks or months. Its fitness for imme- diate use of a particular kind, as indicated by its appointments, is a far more important element entering into the contract than when there is a mere lease of real estate. One who lets for a short term a house provided with all furnishings and appointments for imme- diate residence may be supposed to contract in reference to a well understood purpose of the hirer to use it as a habitation. An im- portant part of what the hirer pays for is the opportunity to enjoy it without delay, and without the expense of pre])aring it for use. It is very difiicult, and often iiupossible, for one to determine on in- spection whether the house and its appointments are fit for the use for which they are immediately wanted, and the doctrine caveat emptor, which is ordinarily applicable to a lessee of real estate, would often work injustice if applied to cases of this kind. It would be unreasonable to hold, under such circumstances, that the landlord does not impliedly agree that what he is letting is a house suitable for occtipation in its condition at the time. This distinction between furnished and unfurnished houses, in reference to the construction of contracts for letting them, when there are no express agreements about their condition, has long been recognized in England, where it is held that there is an implied contract that a furnished house, let for a short time, is in ])roper condition for immediate occupa- tion as a dwelling. Smith v. Marrahle, 11 M. & W. 5. Wilson v. 238 MOOHE V. TOWNSHEND [CHAP. VI Finch Uation, 2 Ex. D. 336. Mancliesier Bonded Warehouse Co. V. Carr, 5 C. P. D. 507. Sutton v. Tempte, ubi supra. Hart v. Windsor, ubi supra. Bird v. Lord Greville, 1 C. & E. 317. Charsley V. Jones, 53 J. P. 280. In Button v. Gerrish, 9 Cush. 89, Chief Justice Shaw recognizes the doctrine as applicable to furnished houses; and in Edwards v. McLean, 122 N. Y. 302, Smith v. Marrahle and Wilson v. Finch Hatton, cited above, are referred to with approval, although held inapplicable to the question then before the court. See Cleves v. Willoughhy, 7 Hill, (N. Y.) 83; Franklin v. Brown, 118 N. Y. 110. We are of opinion that in a lease of a completely furnished dwell- ing-house for a single season, at a summer watering-place, there is an implied agreement that the house is fit for habitation, without greater preparation than one hiring it for a short time might reasonably be expected to make in appropriating it to the use for which it was designed. Judgment affirmed.^ MOORE V. TOWNSHEJsTD 33 N. J. L. 284. 1869. This was an action on the case in the nature of waste, to recover damages for permissive waste, tried at the Cumberland Cii'cuit. The plaintiff, on the 5th of November, 1853, by a lease, under seal, demised to the defendant the premises known as The Eagle Glass Works, in the county of Cumberland, together with one hundred and fifty moulds, and all the tools of every description connected 1 Smith v. Marrahle, 11 M. & W. 5; Wilson v. Hatton, 2 Ex. Div. 336, accord. Contra, Fisher v. Lighthall, 4 Mackey (D. C.) 82; Murray v. Albcrtson, 50 N. J. L. 167. And see Edwards v. McLean, 122 N. Y. .302. Compare Sarson v. Roberts, [1895] 2 Q. B. 395; 4 A. L. R. 1456, 1475 note. " The first question which arises is whether any warranty is imphed by law that when a person takes furnished rooms the proposed tenant is fit to occupy them — in other words, that he is not suffering from an infectious disease. It is admitted that there is no case in the books to support the proposition that there is any such warranty. No doubt when persons let rooms a warranty is implied that the premises are fit for immediate occupa- tion; that is the result of the decisions in Smith v. Marrahle, 11 M. & W. 5. and Wilson v. Finch Hatton, 2 Ex. D. 336. But that is a long; way from the proposition suggested for our acceptance, and I am clearly of opinion that there is no foundation in law for the argument that a warranty ought to be implied from the intending tenant. If such a warranty is to be imposed, it must be imposed by statute. I agree with the view taken by Darling, J., and think that this appeal must be dismissed. [His Lordship then dealt with the evidence as to concealment and misrepresentation, and came to the conclusion that there was no evidence of concealment agamst Miss Miller, nor of misrepresentation agamst Dr. Harboard.] ' — Per Swinfen Eady, L. J., in Humphreys v. Miller, [1917] 2 K. B. 122, 124. SECT. II ] MOORE V. TOWNSHEND 239 with the glass manufactory hiisiiiess at that niamifaetory ; to hohj for the term of two years and eight months, at a yearly rent of one thousand dollars. The lease contained a covenant, by the tenant, for the re-delivery of the moulds and tools, to the lessor, at the ex- piration of the term, in as good condition as they were in at the time of the demise, reasonable wear and tear and fire excepted. It also contained the following clause : " It jaeing understood and agreed between the said parties that said Moore has the privilege of laying out one hundred doUai's per year in repairs on said property, and deducting the same from the rent." There was no other covenant in the lease on the subject of repairs. It was shown, at the trial, that twenty-one dollars and fifty cents had been expended in repairs during the continuance of the lease, of which sum six dollars and ninety-five cents had been deducted from the rent, the balance of which had been paid. The jury found a verdict for the plaintiff, and assessed his damages at five hundred and fifty dollars. A rule to show cause why a new trial should not be granted, was allowed; and the following reasons were assigned for setting aside the verdict. 1. Because an action on the case will not lie against a tenant for years for permissive waste. 2. Because the lease be- tween the parties measures and limits the liability of the tenant, in the matter of repairs. Depue, J. The action on the case, in the nature of waste, has almost entirely superseded the common law action of waste, as well for permissive as for voluntary waste, as furnishing a more easy and expeditious remedy than a writ of waste. It is also an action encouraged by the courts, the recovery being confined to single damages, and not being accompanied by a forfeiture of the place w^asted. At common law, waste lay against a tenant in dower, tenant by the curtesy and guardian in chivalry, but not against lessees for life or years. 2 Inst. 299, 305; Co. Lift. 54. The reason of this diversity was, that the estates and interests of the former were created by the law, and therefore the law gave a remedy against them, but the latter came in by the act of the owner who might have provided in his demise against the doing of waste by his lessee, and if he did not, it was his negligence and default. 2 Inst. 299 ; Doct. & Shi. ch. 1, p. 102. This doctrine was found extremely inconvenient as tenants took advantage of the ignorance of their landlords, and committed acts of waste with impunity. To remedy this inconvenience the statute of Marlbridge (52 Hen. 3, ch. 23) was passed. But as the recompense given by this statute was frequently inadequate to the loss sustained, the statute of Gloucester (6 Edw. 1, ch. 5,) increased the nunishment by enacting that the place wasted should be recovered, together with treble damages. 1 (^iiiisr Dif/. 119, § 25, 26; Sarl-rtf V. Sackett, 8 Pich., p. 313, per Parker, C. J. The statute of Marl- 240 MOORE V. TOWNSHEND [CHAP. VI bridge is in the following words: "Also fcrniors^ during their terms, shall not make, waste, sale, nor exile of house, woods, and men, nor of anything belonging to the tenements that they have to form, without special license had by writing of covenant, making mention that they may do it ; which thing, if they do and thereof be convict, they shall yield full damage, and shall be punished by amercement grievously." 2 Inst. 145. The word fermer (firmarii) in this statute comprehended all such as held by lease for life or lives, or for years, by deed or without deed. 2 Inst. 145, note 1, and also devisees for life or years. 2 Roll. Abr. 826, I. 35. By the statute of Gloucester, " it is provided, also, that a man, from henceforth, shall have a writ of waste, in the Chancery, against him that holdeth by law of England or otherwise, for term of life, or for term of years, or a woman in dower. And he which shall be attainted of waste, shall leese the thing that he hath wasted, and, moreover, shall recompence thrice so much as the waste shall be taxed at. And for waste made in the time of wardship, it shall be done as is contained in the great charter." 2 Inst. 299. At the common law, a tenant at will was punishable for voluntary waste, but not for permissive waste. Countess of Salop v. Crompton, Cro. Eliz. Ill, 784. The Countess of Shrewsbury's case, 5 Rep. 14; Harnett and ^¥ife v. Maitland, 16 M. & W. 258. Tenants in dower, by the curtesy, for life or lives, and for years, were included in the statute of Gloucester. Tenants at will were always considered as omitted from the statute of Marl- bridge as well as from the statute of Gloucester, and, therefore, con- tinued to be dispunishable for mere permissive waste, and punish- able for voluntary waste by action of trespass as at common law. The reason of this exemption of tenants at will from liability for permissive Avaste, was the uncertain nature of their tenure Avhich would make it a hardship to compel them to go to any expense for repairs. Their exemption from the highly remedial process of waste provided by the statute of Gloucester, is attributable to the fact that the owner of the inheritance might at any time, by entry, determine the estate of the tenant, and thus protect the inheritance from spoil or destruction. The language of the statute of Marlbridge is, " shall not make {non facient) waste," and in the statute of Gloucester, in speaking of guardians, the words used are, "he which did waste" (que acera fait waste). The settled construction of these statutes in the English law until a comparatively recent period was, that ,they included permissive wastes as well as voluntary waste. In a note in expo- sition of the statute of Marlbridge, Lord Coke, in commenting on the words " non facient," says : " To do or make waste, in legal under- standing in this place, includes as well permissive waste, which is waste by reason of omission or not doing as for want of repara- tion, as waste by reason of commission, as to cwX down timber, trees, or prostrate houses, or the like; and the same word hath the statute SECT. II ] MOORE V. TOWNSHEND 241 of Gloucester, eh. 5, qioe aver fait waste, aud yet is understood a& well as of passive as active waste, for he that sutfereth a house to decay which he ought to repair, doth the waste." 2 Inst. 145; 7 Dae. Ahr. 250; 3 Bl. Com. 225; 2 Saund. 252; 4 Kent 76. So under the prohibition to do waste, the tenant is held to be bounden for the waste of a stranger, though he assented not to the doing of waste. Dod. & Stu., ch. 4, p. 113; 2 Inst. 303; Fay v. Brewer, 3 Pick. 203; 1 Washhurn R. Prop. 116. It is common learning that every lessee of land, whether for life or years, is liable in an action of waste to his lessor, for all waste done on the land in an action of w^aste to his his lessor, for all waste done on the land in lease by whomsoever it may be committed, per Heath, J., in AttersoU v. Stevens, 1 Taunt. 198; with the exception of the acts of God, public enemies, and the acts of the lessor himself. White v. Wagner, 4 Harr. & Johns. 373; 4 Kent 77; Heydon and Smith's Case, 13 Coke 69. The in- stances in the earlier reports in which lessees for life or years, were held liable for permissive waste, which consisted in injuries resulting from acts of negligence or omission, are quite frequent; and their liability is grounded, not on the covenants or agreements in the in- struments of demise, but on the statute, which subjected them to the action of -waste. Griffith's Case, Moore 69, No. 187; Ih. 62, No. 173; Ih. 73, No. 200; Keilway 206; Darcy v. Askwith, Hohart 234; Glover v. Pipe, Given 92; SDyer 281; 2 Roll. Abr. 816 1, 40; 22 Vin. Ahr. Waste " c" and " d," p. 436-440, 443; Co. Litt. 52 a, 53 h; 5 Com. Dig. Waste, d 2, d 4; Bisselt on Estates, 299, 300'. So uniformly had the courts determined that lessees for life or years, had committed waste by the application of the common law rules, with respect to waste, whether of omission or commission, that the learned commentator on English law says, " that for above five hun- dred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as some- times they are, Avithout impeachment of waste." 2 Bl. Com. 283. This construction of the statutes of Marlbridge and Gloucester con- tinued to be received without dissent until the decision of the case of Gibson v. Welts, 4 B. & P. 290, in the year 1805 which was followed by the case of Heme v. Bembow, 4 Taunt. 764 (1813). These cases it is insisted have settled the construction against the liability of a tenant for years for permissive waste. Gibson v. Wells, is not an authority for this position. The tenant against whom the action there was brought was a tenant at will, who is not included witliin the statutes, and who, at common law, was punishable for voluntary, but not for permissive waste. In Heme v. Bemhovj, it does not clearly appear that the lease was for a term. It is certain that tlie opinion of the Court, proceeded upon principles applicable to tenants at will. As the case is reported in Taunton, it appears to have l)een decided, without argument or consideration. The opinion is a per curiam 242 MOORE V. TOWNSHEND [CHAP. VI opinion, and the only case cited is the Countess of SJirewshury's Case, 5 Co. 14, which was a case of a tenancy at will. The only subsequent case which sustains these cases is Torriano v. Young, 6 C. & P. 8 ; a case at nisi prius. In other cases where Heme V. Bembow was cited, the English Courts show no disposition to follow it. In Jones v. Hill, 7 Taunt. 392, Gibbs, C. J., expressly guards him- self against being supposed to ^concur in the position that an action will not lie against a lessee for years for permissive waste. In Martin v. Gilham, 7 ^4. & E. 540, and in Beale x. Sanders, 3 Bing. N. C. 850, a decision of that question is avoided; and in Harnett v. Maitland, 16 M. & W. 256, 261, Parke, B., on Gibson v. Wells, Heme v. Bemhoiv, and Torriano v. Young being cited, intimates an opinion against those cases as necessarily involving the result that a tenant for life is also dispunishable for permissive waste. Text writers of acknowledged authority have not recognized these cases as settling the law against the older cases and the opinions of Coke and Blackstone, but have regarded them as merely throwing a doubt upon a principle that had previously been set at rest. 2 Saund. 252 b, note i; Arch. L. & T. 196, 7; Smith on L. & T. 196; Comyn on L. & T. 495; and note e; 2 Bouvier's Law Did. 645, \Yaste, § 14; 1 Wash- burn on R. Prop. 124, and note 1. By other legal writers they are doubted or condemned as unsound in principle. Roscoe on Real Actions 385; Ferrard on Fixtures 278, 281, note; 1 Evans Statutes 193, note; Broom on Parties 257; 4 Kent 76, 79; Elmes on Dilapida- tions 257. Independent of authority, the true construction of the statute of Gloucester, leads to the conclusion that tenant for life or years, was made liable for permissive as well as voluntary waste. Before either this act or the statute of Marlbridge was passed, waste was recognized in the law, as an injury to the inheritance, resulting either from acts of commission or of omission. Neither of these statutes created new kinds of waste, but gave a new remedy for old wastes, leaving what was waste, and what not, to be determined by the common law. 2 Inst. 300; and by the statute of Gloucester the writ of waste w^as suable out of Chancery as well against lessee for life or years, as against tenant by the curtesy, or in dower, putting the former, as to the newly created remedy, on the same footing as the latter. '' It hath been used as an ancient maxim in the law, that tenant by the cur- tesy, and the tenant in dower, should take the land with this charge, that is to say, that they should do no waste themselves, nor suffer none to be done ; and when an action of waste was given after, against a tenant for term of life, then he was taken to be in the same case, as to the point of waste as tenant by the curtesy, and tenant in dower was, that is to say, that he should do no waste, nor suffer none to be done." Doct. £ Stu., ch. 4, p. 113. No distinction can be made between lessee for life and lessee for years. Both are mentioned in the statute cojointly ; and each derives his interest in the premises from the act of the owner of the inheritance. SECT. II] MOORE V. TOWNSHEND 243 The second section of the act for the prevention of waste, which is in force in this state (Nix. Dig., Uh ed., 1022,) provides that no tenant for life or years, or for any other term, shall during the term make or suffer any waste, sale or destruction of houses, gardens, orchards, lands, or woods, or anything belonging to the tenements de- mised, without special license in writing, making mention that he may do it. The third section is in substance the same as the statute of Gloucester. The act was passed in 1795. The use of the words " make or suffer," in the second section, which are equivalent to Coke's interpretation of facient in the statute of Marlbridge, mani- fests an intent to adopt as the law of this state, the doctrine of the English courts, as to the liability of tenants for life or years for per- missive waste, which Avas universally received at the time of the passage of the act. The second reason assigned involves the effect of the lease in this action. Premising that the act or omission, to constitute waste must be either an invasion of the lord's property, or at least be some act or neglect which tends, materially, to deteriorate the tenement, or to destroy the evidence of its identity; (Burton's Comp. R. Prop. 411; Doe ex clem. Gruhh v. Earl of Burlington, 5 B. <& Ad. 507 ; 2 Saund. 259 a, note o; 1 Pynchon v. Stearns, 11 Met. 304; 1 ^^'asllhurn R. Prop. 108;) and that the action is founded partly upon the common law and partly upon the statute, and does not depend for its support on any covenants of the tenant; (22 Viner Abr. 457, Waste M. 4; 3 Bl. Com. 227; KinJyside v. Thornion, 2 W. Black 1111; Marker v. Kenrick, 13 C. B. 188;) it is obvious that we must resort to the statute for the conditions on which the tenant is excusable for the waste done. There is a class of cases in which tenants have been held not to be liable for waste resulting from non-repair where the lessor has entered into a covenant to make the repairs for the want of which the injury has happened. These cases go upon the ground that the injury was caused by the lessor's own default, on which he can base no right to recover. There is no such covenant in the lease now under con- sideration. The statute forbids waste by the tenant " without special license, in writing, making mention that he may do it." The consent of the landlord by parol will not be sufficient authority. McGregor v. Brown, 6 Seld. 114. The words usually employed for this purpose are " without impeachment of waste," but any words of equivalent import will be sufficient, provided they amount to a license to do the acts. The defendant, to hring himself within tlie statnte, relics on that part of the lease wliich rehites to the re-deliverv of the personal property leased, in (•oiinection with ilic sii|)nhilion giving the defendant tlie privilege of expending a ))ortion ot thi- rent in each year for repairs. The covenant as to the personal property is entirely 244 THE COUNTESS OF SHREWSBURY'S CASE [CHAP. VI distinct from the obligations of the tenant, with respect to the real estate. The privilege of expending a portion of the rent reserved in repairs, is not a license to the tenant to omit a duty put upon him by the statute, growing out of the relations between the parties. To construe a privilege given by the landlord to expend his money in the reparation of the demised premises, as a license to the tenant to omit his duty, to the spoil or destruction of the inheritance, would be an entire subversion of the obvious intent of the landlord. If it falls short of a license for the act complained of, it does qualify or abridge the obligations of the tenant which exist independent of the provisions of the lease. It was further insisted that if any action lies, it should be an action ex' contractu, and not in tort. As already observed the grava- men of the action is the breach of a statutory duty. An action on the case founded in tort will lie for the breach of a duty though it be such as that the law will imply a promise on which an action ex contractu may be maintained. Brunnell v. Lynch, 5 B. & C. 589. To the same effect are the cases of K inly side v. Thornton and Marher V. KenricJc; already cited, in which it Avas held that an action on the case in the nature of waste, will lie, although the act complained of might also be the subject of an action for the breach of an express covenant. Rule discharged. Beasley, Chief Justice, and Justice Dalbimple, concurred.^ THE COUNTESS OF SHEEWSBURY'S CASE 5 Co. 13a. 1600. The Countess of Shrewsbury brought an action on the case against Richard Crompton a lawyer of the Temple, and declared, that she leased to him a house at will, <& quod ille tarn negligenter & improvide custodivit ignem suum, quod, dotnus ilia comhusta fuit: to which the defendant pleaded not guilty, and was found guilty, <&:c. And it was adjudged that for this permissive waste no action lay, against the opinion of Brook in the abridgement of the case of 48 E. 3. 25. Wast. 52. And the reason of the judgment was, because at the com- mon law no remedy lay for waste, either volunary or permissive against lessee for life or years, because the lessee had interest in 1 Suydam v. Jackson 54 N. Y. 450; Harnett v. Maitland, 16 M. & W. 257; Davies v. Davies, 38 Ch. D. 499, accord. In the following cases the court said that a tenant for life is liable for permissive waste. Miller v. Stiields, 55 Ind. 71. 77; Stevens v. Rose, 69 Mich. 259; Wilson v. Edmonds, 24 N. H. 517, 545; Schulting v. Sctiulting, 41 N. J. Eq. 130. 132; Spernll v. Connor, 107 N. C. 630. 636; Harvey v. Harvey, 41 Vt 373. Contra, In re Cartwright, 41 Ch. D. 532. A tenant from year to year is liable for permissive waste. Neivbold v Brown, 44 N. J. L. 266. See Long v. Fitzimmons, 1 W. & S. (Pa.") 530; Wedd V. Porter, [1916] 2 K. B. 91. SECT. II ] EARLE V. ARBOGAST AND BASTIAN 245 the land by the act of the lessor, and it was his folly to make snch lease, and not restrain him by covenant, condition, or otherwise, that he should not do waste. So and for the same reason, a tenant at will shall not be punished for permissive Avaste. But the opinion of Littleton is good law, fol. (15) 152. If lessee at will commits volun- tary waste, scil. in abatement of the houses, or in cutting of the woods, there a general action of trespass lies against him. For as it is said in 2 and 3 Phil. & Mar. Dyer 122. b. when tenant at will takes upon him to do such things which none can do but the owner of the land, these amount to the determination of the will, and of his possession, and the lessor shall have a general action of trespass without any entry: and there 15 E. 4. 20. b. is cited, that if a bailee of goods as of a horse, &c. kill them, the bailor shall have a general action of trespass, for by the killing the privity was determined. But it was agreed that in some cases, when there is a confidence reposed in the party, the action upon the case will lie for negligence, although the defendant comes to the possession by the act of the plaintiff. As 12 E. 4. 13. a. b. where a man delivers a horse to another to keep safe, the defendant equum ilium tarn negligenter custodivit, quod oh de- fectum honce custodice interiif; the action on the case lies for this breach of the trust. So 2 H. 7. 11. if my shepherd, whom I trust with my sheep, and by his negligence they be drowned, or otherwise perish, an action upon the case lies : but in the case at bar it was a lease at will made to the defendant, and no confidence reposed in him ; wherefore it was awarded, that the plaintiff take nothing by her bill.^ EAELE V. AEBOGAST AND BASTIAN 180 Pa. 409. 1897. At the trial it appeared that the premises in question had been leased by the plaintiff to the defendants by parol for one year, with no agreement to repair or to deliver the premises in good order and condition at the end of the term. The property had been used by the lessor as a soap factory, and this use was continued by the defendants. The only new appliance which the defendants used was a rendering tank which exploded and caused the injuries for which suit was brought. It was claimed by the plaintiff that the explosion Avas caused by the vent pipe of the tank becoming clogged. It was also averred by him that the tank was not strong enough to withstand the pressure of steam that was put upon it.- OriNioN BY Mr. Justice Fell, March 22, 1S97: Generally in the absence of an express covenant on the subject the 1 Lothrop v. Thayer, 138 Mass. 466, accord. See Means v. Cotton, 225 Mass. 313, 319. 2 The report of the charge of the lower court is omitted. 246 EARLE V. ARBOGAST AND BASTIAN [CHAP. VI law implies a covenant on the part of the lessee so to tr(;at the de- mised |)remises that they may revert to the lessor unimpaired except by usual wear and tear, and uninjured by any wilful or negligent act of the lessee. The implied covenant does not however extend to the loss of buildings by fire, flood or tempest, or enemies, which it was not in the power of the lessee to prevent, and there is no implied covenant that the lessee shall restore buildings which have been destroyed by accident without 7ault on his part: Jackson and Gross' Landlord and Tenant, in Pennsylvania, sec. 964, 965 ; Taylor's Land- lord and Tenant, sec. 343; Cooley on Torts, p. 335; Long v. Fitz- immons, 1 W. & S. 530; United States v. Bostwick, 94 U. S. 53. Tenants by the curtesy and in dower were responsible at common law, and tenants for life and for years whose estates were created by the acts of the parties, were responsible under statute as for per- missive waste until relieved by the statute of 6 Anne, chap. 31, where the property was destroyed by unavoidable accident, not the act of God or the public enemy. The statute of 6 Anne, chap. 31, which re- lieved the tenant from liability for the consequences of accidental fires has never been in force in this state, and it has been formally adopted by feAv if any of the other states, except JSTew Jersey. Chan- cellor Kent, 4 Kent's Com. 82 says : " Perhaps the universal silence of our courts upon the subject of any such responsibility of the ten- ant for accidental fires is presumptive evidence that the doctrine of permissive waste has never been introduced and carried to that extent in the common law jurisprudence of the United States." In U. S. V. Bostwick, supra, it was held that the implied covenant of the tenant is not to repair generally, but so to use the property as to make repairs unnecessary as far as possible, and that it is a covenant against voluntary waste only. It is said in the opinion by Waite, C. J. : " It has never been so construed as to make a tenant answ^er- able for accidental damages nor to bind him to rebuild if the buildings are burned down or otherwise destroyed by accident." The statement in the opinion in Long v. Fitzimmons, supra, that a tenant, where there is no covenant to that effect, is not bound to re- store buildings that have been burned down or become ruinous by other accident without default on his part may be a dictum only, but it is in harmony with the trend of decisions of the courts of other states and of the federal courts, and it has been accepted and acted upon by the courts of this state, and it is a correct statement of the law. There could be no recovery without proof of the defendants' negli- gence, and the burden of proof rested upon the plaintiff. The lease was in parol, for one year, with no agreement to repair or to deliver the premises in good order and condition at the end of the term. No new or different use was made of the building by the tenants. It w^as used by them for the purpose for which it had been leased, and for which it had been fitted with machinery and used by the lessor. The SECT. II ] WHITE V. WAGNER 247 only new appliance used was the rendering tank which exploded. In the use of the property leased the defendants were under an implied duty not to negligently injure it. The standard of their duty was reasonable care. The mere fact of the explosion did not throw upon them the burden of proving that they were not negligent. The burden of proof was with the plaintiff throughout' the trial. He was not bound in the first instance to prove more than enough to raise a presumption of negligence on the part of the defendants. Proof of the explosion and of the attendant circumstances might have fur- nished sufHcient ground for a reasonable inference of negligence to have made out a prima facie case, but he could not rest his case upon a bare presumption based only upon the fact that the explosion occurred. The answers to the third, fourth and fifth points affirmed these propositions and are free from error. The assignments which complain of the charge cannot be sustained. An inadequate presentation of the case, when the omission to charge leaves the jury without direction on important questions involved, or plainly tends to mislead them, is ground for reversal. In this case the charge was clear and full. The omission now complained of was in not calling the attention of the jury to some features of the case which counsel at the time did not deem of sufficient importance to mention, and which may have been discovered only by a critical analysis of the charge made since the trial. The judgment is affirmed.^ WHITE V. WAGNER 4 Har. & J. (Md.) 373. 1818. This was an action of trespass on the case, in the nature of waste. - 1. At the trial it was admitted that the defendant was tenant of the premises in question, as a dwelling-house under the plaintiff, for a year, at the rent of $350, and that no covenants or agreement were entered into by the parties relative to repairs of the premises, or other matters relating thereto, other than such as are implied by law, except merely the agreement to let the premises by the plaintiff to the defendant for a year, and by the defendant to pay the said rent. That the defendant entered into possession sometime in the month of May, 1812, and continued therein until the 27th of June of the same year, when a large armed multitude of unknown persons, being residents of the city of HaUimore. or of this state, assembled ' Tenant's liability for accidental fires not due to his negligence. United States V. Bostwirk, 94 IT. S. 53; Wainscutt v. Silvers, 13 Ind. 497; Levey v. Dyess, 51 Miss. 501; Sninpsnn v. Grogan, 21 R. I. 174; Maggort v. Hans- barger, 8 Leigh (Va.) 532. Sec Mnrhrn v. Hooper, 73 Md. 342. - The pleadings which follow aie omitted. 248 WHITE V. WAGNER [CHAP. VI and combined themselves together in the said city for the purpose of pulling down the said house, and compelling the defendant to de- sist from the distribution of a newspaper called The Federal Repub- lican, and to drive the defendant from the said city. That the mayor of the city, the judges of the court of oyer and terminer and gaol delivery for BalUmore county, and other civil officers of the said city and county, being informed of this combination and assemblage of an armed multitlide, and the purposes for which they were so assembled, did, by all such ways and means as they deemed best calculated, from the powers they possessed, endeavour to pre- vent and hinder the said multitude from perpetrating their unlav/ful and outrageous purposes as aforesaid; but in spite of all the efforts of the said civil officers, and by a power wholly incontrollable and irresistible by the said officers, or by the defendant, the said armed multitude did compel the defendant, and his family, for the safety of their lives, to fly from and abandon said house and prem- ises, and from, the said city, and did ruin, spoil, and destroy said house, in the manner as stated in the declaration. The plaintiff then offered evidence to prove, that after the defendant took possession of the said house, he used it for the purpose of receiving therein a newspaper called The Federal Republican, which was printed in George Town, in the District of Columbia, of which the defendant was an editor and proprietor, and from thence to distribute the same to the subscribers to the said paper, who resided in the city of Balti- more; and having reason to believe that the said house would be attacked by a lawless armed and unknown multitude, if the said paper was received and distributed therefrom, he collected, in a peaceable and lawful manner, a number of armed men for the purpose of de- fending the said house against any attack which might be made there- on by the said unknown multitude as aforesaid ; and that it Avas after the introduction of the said armed men to defend the house, and the commencement of the distribution aforesaid therefrom, that the said armed multitude, as herein before stated, attacked, ruined and spoiled the house. To the admission of which said evidence, under the pres- ent declaration, the defendant objected. But the Court, [Bland and Hanson, A. J.] overruled the objection, and permitted the whole of said testimony to be given to the jury. The defendant excepted. 2. The defendant then moved the court to direct the jury, that if they believed the facts so admitted and given in evidence, that then the plaintiff was not entitled to recover. "Which opinion and direc- tion the Court [Dorsey, Ch. J.] gave to the jury. The plaintiff ex- cepted ; and the verdict and judgment being against her, she appealed to this court. Johnson, J. The action in this case was brought in Baltimore county court, to recover damages for a dwelling-house on Charles street, in the city of Baltimore, which was materially injured during the time it was let by the plaintiff to the defendant. SECT, II ] WHITE V. WAGNER 249 The facts as they present themselves on the bill of exceptions are: (He here stated the case.) The declaration contains two counts, the one an action on the case in the nature of waste, the other on an implied undertaking to re- store the property in good tenantable repair, alleging as the breach the destruction of the property by the defendant. Actions of the present nature have been seldom if ever brought in this state; indeed a transaction similar to the present never before, and it is greatly to be deplored ever did, and it is hoped never will arise again, in which private property has been by force destroyed against the exertions of the civil authority, collected on the spur of the occasion for its preservation. But as the property has been de- stroyed, as between the landlord and tenant, the question is who must bear the burden of the loss? In forming an opinion on the present subject it is not necessary to trace the law of waste, as it existed at common law, or as changed by the statutes of Marlbridge and of Gloucester; it is sufficient to ob- serve, that those statutes make a lessee for years liable to the action of waste, in which when determined against the tenant, he forfeited the place wasted, and was compelled to pay treble damages. Waste, va^tum, is a spoil or destruction in houses, &c. to the dis- herison of him that hath the remainder or reversion in fee simple or fee tail. The removing wainscot floors, or other things once fixed to the freehold, is waste. Co. Litt. 53. 4 Rep. 64. 2. Blh, 281. Waste is voluntary, a crime of commission, as pulling doAvn a house; or permissive, which is matter of omission only, as by suffer- ing it to fall for necessary repairs. If the property in question had been destroyed, as set forth in the plaintiff's claim, by the defendant himself, or by others at his instance, it is clear he made himself liable to an action of waste; wherein not only would have been recovered the house let, (supposing the lease not expired,) but treble damages. The injury done to the property would have assumed the denomination of wilful waste. But as the destruc- tion was not, in the common acceptation of the term, made by him- self, or by others at his instance, is he liable ? It is not novel in the law to make persons, morally innocent, respon- sible for the acts of those over whom thoy had no control. In vari- ous instances, where the property of the owner is placed in the care of another, such person is liable to the owner for its loss, or for in- juries done to it, which the possessor could not restrain. The common carrier, the inn-keeper, the sheriff, and others not thought material to enumerate, are responsible for losses which they could not prevent. They stand liable to the owner for all losses, whether sustained by highway robbers, or otliers, no matter how in- controllahle and irresistihle may be the force with Avhich they are assailed. The act of God, and of the public enemies, will only free them from the demand, when the loss proceeded from such act or such enemies, and then only when they nvc free from every exception. 250 WHITE V. WAGNER [CHAP. VI If the law was otherwise, by conniving with the robbers and thieves, no property could be safe in their custody, it would scarcely ever be in the owner's power to ascertain whether the loss was the result of concert, or of force — whether the alleged attack might or might not have been resisted. To free them from all temptation to swerve from their duty, and to secure an eifectual remed}^ to those who in- trust them with their property, all excuses of the kind spoken of are precluded; for it is better that, occasionally, the loss should fall on an innocent person, than to relax, and in effect, to defeat all liability. At the common law all such as were liable to the action of waste, no matter what might be their situation, no matter w^hat might be the power to repel the waste from being done, if it was committed, they were bound to respond. The infant age of the tenant would not free him from the responsibility. Under the statutes of Marlhridge and Gloucester, the same liabilities are cast on the tenant for years. The defendant, in the case before the court, comes within the pur- view of those statutes, and must therefore be responsible, unless the overwhelming force, by which the injury was done, exonerates him. As the property of the landlord is placed in the tenant's possession, who has the legal power to prevent all waste from being done to it, and to recover for it, when committed, as in most instances it would be impossible for the landlord to ascertain in time, or come at the wrongdoer, it appears to have been the policy of the law, to cast the liability on the part of the tenant for all waste committed on the property, except when caused by the act of God, or of the king's enemies. But let it, for argument's sake, be conceded, that if the defendant had continued to use the house for the purpose it was let to him, and that whilst so used, the lawless multitude attacked and destroyed it, that he would not have been liable, a point not neces- sary to he determined in this case; yet as he did of his own authority, without the consent of the plaintiif, divert the house to a wholly differ- ent and much more dangerous purpose, well aware of the risk which the property would thereby have to encounter, on principles of law and justice, as between him and the plaintiff, he becomes responsible for the consequences. If the common carrier, who puts to sea during a storm, or on its approaching, cannot exonerate himself from the loss the storm may produce, which he attempted to buffet, so it appears equally just that a tenant, who applies the property to a different purpose than it was let to him, aware of the great increase of risk, in consequence of such diversion, 7nust hear, and not cast the responsibility on the landlord. My opinion, therefore, is, that on principles of law and justice, the merits of the case are with the plaintiff. The action of waste appears to have given way to, or been super- seded by, the action on the case in nature of waste, which is the first count in the present declaration. Two grounds have been relied on against the first count : SECT. II ] WHITE V. WAGNER 251 1st. That the evidence does not support the count ; and 2d. That if the defendant was liable, yet as the ivaste was per- missive, and not voluntary, an action on the case, in the nature of waste, will not lie. The declaration, it is true, states the destruction of the property to have been made by the defendant, and by those taken into the house by him. In common parlance a person cannot be said to have done an act which was done by another; nor can he be charged with causing a destruction to take place when every exertion in his power was used to prevent it. But in the legal acceptance of the charge, he who does certain acts, by others, is said to have done them himself. Qui facit per aliuin facit per se. If the tenant is generally responsible for all waste committed by strangers, no matter how overwhelming the power, how much more strong is the case before the court, when the property in question was applied to a different object that that for which it was let ;• the defendant having reason to believe that in con- sequence of such application " the house would be attacked by a law- less armed and unknown multitude " — As, between the plaintiff and defendant, the acts of the multitude produced by the acts of the de- fendant and those in concert with him, must be imputable to the de- fendant himself, and of course the charge, as contained in the count, is correct. The second objection to the count by the preceding reasoning is also removed; for, if the defendant is to be liable as of himself, for the waste committed by the lawless multitude, then it follows that the destruction to the property in question, conies strictly under the de- nomination of voluntary waste, for which, no doubt is entertained but that the present action is applicable. It would then appear that there is no need to form an opinion, whether the action on the case, in the nature of waste, will, or will not lie for permissive waste; but the inclination of my mind is, that that action will be sustained as well for the one as for the other description of waste. It is a form of action, long since introduced, to recover for such injuries; it is an equitable action, and ought not to be discountenanced ; it confines the recovery to the real loss sustained ; and I see no reason to say that it will not lie in all cases, and against all persons, who are at common law, or under the statutes of Marlhridge and Gloucester, made liable to the action of ivaste. As the case is covered by the first count in the declaration, I deem it totally unnecessary to add whether the evidence sustains the second. The opinion of the court below, as pronounced on the second bill of exceptions is erroneous, and the judgment obtained in consequence thereof is reversed. Martin, J., dissented. Judgment reversed, and procedendo awarded. 252 CODMAN V. AMERICAN PIANO CO. [CHAP. VI FAY V. BREWER 3 Pick. (Mass.) 203. 1825. Action on the case in the nature of waste, for cutting down trees. ^ The defendant offered to prove that the trees were cut down by other persons, mere trespassers,' without his consent or knowledge. Per Curiam. It is clear that a tenant for life is bound to see that trespassers do not injure the state, and for this purj)ose the law gives him an action of trespass. So that whether waste is com- mitted by himself or by a stranger, he is alike answerable to the reversioner.^ CODMAN AKD OTHERS v. AMERICAN PIANO CO. 229 Mass. 285. 1918. Contract by the trustees of the Municipal Real Estate Trust, a voluntary association, as the lessors under a lease in writing dated May 24, 1912, of certain real estate numbered 169 on Tremont Street in Boston against the lessee thereunder to recover $266.67 wath in- terest thereon, as being the amount of federal income taxes taxes paid by the plaintiffs upon the rent received by them as income from the leased premises and alleged to be payable by the defendant as lessee under the terms of the covenant to pay taxes, which is quoted in the opinion. Writ dated July 31, 1917. In the Superior Court the case was submitted to Brown, J., as a case stated by agreement. At the request of the parties the judge, without making any decision, reported the case for determination by this court upon the pleadings and the case stated. Crosby, J. Upon the case stated it appears that the defendant in 1912 entered into a written indenture of lease with Paul M. Hamlen and Miriam P. Loring as lessors whereby they demised certain prem- ises to the defendant for a long time at a rental therein recited. The plaintiffs are trustees of a voluntary association which succeeded to the rights of the original lessors under the lease. The lease contains the following covenant : (b) "And the lessee further covenants and agrees with the lessors to pay punctually within fourteen (14) days from the times when they become due and payable all taxes and assessments whatsoever which may be payable for or in respect of 1 The statement of facts and the opinion are abbreviated. 2 Parrott v. Barney, Fed. Cas. 10773a; Cargill v. Sewall, 19 Me. 288. 291; Wood V. Griffin, 46 N. H. 230; Dix v. Jacquay, 94 N. Y. App. Div. 554; Regan V. Luthy, 16 Daly (N. Y.) 413; Powell v. Dayton R. R Co., 16 Oreg. 33. accord. Compare Foot v. Dickinson, 3 Met. (Mass.) 611; Rogers v. Atlantic, G. & P. Co., 213 N. Y. 246; Winfree v. Jones, 104 Va. 39. SECT. II ] CODMAN V. AMERICAN PIANO CO. 253 the leased premises during the term thereof, except assessments for betterments hereinafter arranged for." Under the terms of the federal income tax enacted October 3, 1913, entitled "An Act to reduce tariff duties and to provide revenue for the Government, and for other purposes," the association under § 2, paragraph G (a) was subject in each of the years 1914, 1915, and 1916 to a tax of one per cent upon its entire income arising or accru- ing from all sources during the preceding calendar year. In each of the years above referred to a tax at the rate of one per cent was duly assessed upon the association's entire net income^ which assessments have been paid by the association in accordance with the terms of the act. The plaintiffs seek in this action to recover the amount of the taxes so paid upon the amount of the rent reserved in the lease and paid by the defendant to the association. The income tax act, under which the taxes were levied and paid, contains the following provisions : "A. Subdivision 1. There shall be levied, assessed, collected and paid annually upon the entire net income arising or accruing from all sources in the preceding calendar year to every citizen of the United States, whether residing at home or abroad, and to every person residing in the United States, though not a citizen thereof, a tax of 1 per centum per annum upon such income . . ." "E. . . " The provisions of this section relating to the deduction and payment of the tax at the source of income shall only apply to the normal tax hereinbefore imposed upon individuals." " G. (a) The normal tax hereinbefore imposed upon individuals likewise shall be levied, assessed, and paid annually upon the entire net income arising or accruing from all sources during the preceding calendar year to every corporation, joint-stock company or associa- tion, and every insurance company, organized in the United States, no matter how created or organized, not including partnerships; . . ." It is agreed that the plaintiffs are an " association " as that word is used in paragraph G (a), and that the defendant paid to the association the full rent in the amounts and at the times specified by the lease, and did not withhold the federal income tax of one per cent. The question then is whether the defendant is liable to indemnify and pay to the plaintiff's the amount of the taxes upon the rents so paid by the plaintiffs to the federal government. It is the contention of the plaintiffs that the defendant is liable under the covenant in the lease above quoted, and that the case is governed by Siiter v. Jordan Marsh Co. 225 Mass. 34, and bv Pollock v. Farmers' Loan & Trust Co. 157 U. S. 429; S. C. 158 U. S. 601. This contention requires us to consider what these cases actually 254 CODMAN V. AMERICAN PIANO CO. [CHAP. VI decided so far as they have any bearing upon the issue presented in the case at bar. The case of Suter v. Jordan Marah Co. decided that where the de- fendant was required to withhold and pay and did so withhold and pay to the United States, under the federal income tax law, para- graph E of § 2 above referred to, the " normal " income tax on certain rents reserved in a lease given by it to the plaintiffs, the defendant could not deduct the amount of such payment from the amount of the rent which it paid to the lessors. The lease in that case contained a covenant that the lessee should pay " all taxes and assessments whatsoever, except betterment taxes, which may be levied for or in respect of the said leased premises, or any part thereof, or upon or in respect of the rent payable hereunder by the Lessee how- soever and to whomsoever assessed." It is to be noted that the cove- nant required the lessee to pay the taxes not only for or in respect to the premises leased, but also " upon or in respect of the rent pay- able " under the lease. Accordingly it was said by this court that " by the terms of the lease, the defendant has obligated itself to pay ' all taxes and assessments . . . upon or in respect of the rent . . . howsoever and to whomsoever assessed.' The setting forth of the de- fence shows that it cannot prevail." In other words, the agree- ment of the parties as expressed in the lease is to govern and control their respective rights in view^ of the language employed. In the case at bar the covenant in the lease contains no agreement that the lessee will pay taxes assessed upon or in respect of rent pay- able under the lease, and so is clearly distinguishable from the case of Suter v. Jordan Marsh Co. supra. The case of Pollock v. Farmers Loan & Trust Co. 157 U. S. 429, dealt with the federal income tax law of 1894, and decided that a tax levied upon rents or income received from real estate was a direct tax and was unconstitutional because not levied in accordance with the constitutional rule of apportionment. In coming to the conclu- sion that a tax upon the rents or the income from real estate was a direct tax, the court said at page 581, ''An annual tax upon the annual value or annual user of real estate appears to us the same in substance as an annual tax on the real estate, which would be paid out of the rent or income." Accordingly it was held that a tax upon such rents was as much a direct tax as a tax upon the land itself. When the case was heard in re-argument, 158 U. S. 601, the previous decision on this point was reaffirmed in the following language at page 637 : " We adhere to the opinion already an- nounced, that, taxes on real estate being indisputably direct taxes, taxes on the rents or incomes of real estate are equally direct taxes." The decision in the Pollock case that a tax on rents of real estate is a direct tax, and that therefore the federal income law which pro- vided for a tax upon such rents was unconstitutional, related only' SECT. II ] CODMAN V. AMERICAN PIANO CO. 255 to the constitutional power of Congress to tax incomes. The court did not consider or decide that a tax on rent was a tax for or in respect to the premises from which the rent was derived. That is a wholly different question. On rehearing of the Pollock case the court at page 61S expressly- limited its judgment in the following words : " Our previous de- cision was confined to the consideration of the validity of the tax on the income from real estate, and on the income from municipal bonds. The question thus limited was whether such taxation was direct or not, in the meaning of the Constitution ; and the court went no further, as to the tax on the income from real estate, than to hold that it fell within the same class as the source Avhence the income was derived, that is, that a tax upon the realty and a tax upon the receipts therefrom were alike direct." Neither the Suter case nor the Pollock case decides the question presented in the present case, and therefore do not support the plaintiffs' contention. When rent from land has become due, it is personal property; it is a chose in action and does not pass by a conveyance of "the land. Burden v. Thayer, 3 Met. 76. If a lessor dies during the term, the rents accrued during his lifetime are personal property and pass to his administrator, while rents that accrue after his death go to his heirs, or to whoever may be entitled to the real estate subject to the demise. ClarJc v. Seagraves, 186 Mass. 430, 439. So rent from real estate which has accrued is held to be taxable at the domicil of the lessor, Old Dominion Steamship Co. v. Virginia, 198 U. S. 299, while the real estate from which rent is derived is taxable at its situs. Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194. In this Commonwealth taxes upon real estate are assessed to the owner or person who is in possession on the first day of April. St. 1909, c. 490, Part I, § 15. St. 1914, c. 198, § 2. St. 1915, c. 237, § 23. In determining whether the language of the covenant in the lease in question is sufficiently comprehensive to impose upon the lessee the obligation to indemnify the lessors who have paid the taxes under tlie tariff act of 1913 depends upon the construction of the phrase " for or in respect of the said leased premises." These words are to be interpreted in accordance with their natural and ordinary meaning. Manifestly taxes upon the real estate come within the terms of the covenant. It is equally clear that taxes for betterment assessments under such a covenant would have to be paid by the lessee unless otherwise stipulated in the lease. On the other hand, we cannot construe the phrase in question as including within its terms a tax assessed by the federal government to the lessor upon the rents reserved under the lease. Such an assessment is upon aii entirely distinct kind of property than 256 CODMAN V. AMERICAN PIANO CO. [CHAP. VI is the assessment upon the real estate. While under tlie federal in- come tax law a tax on rent is a tax on land and so a direct tax, yet a tax on land is not a tax on rent; the defendant did not cove- nant to pay taxes for or in respect of the rent ; his undertaking is to pay the taxes for or in respect of the premises. The covenant obligated the lessee to pay the taxes upon the real estate but not upon the income in the form of rent wliich arose therefrom. In construing the covenant, it is plain that taxation upon real estate means one thing, and taxation upon income means another. Under a covenant in a lease substantially like that under con- sideration, it was held that it did not include a tax upon the rent reserved. Van Rensselaer v. Dennison, 8 Barb. 23. In Woodruff v. Oswego Starch Factory, 70 App. Div. (N. Y.) 481, affirmed in 177 N. Y. 23, it was held that it would not be a natural or reasonable construction of a similar covenant to inter- pret it as including a tax upon the rents reserved under the lease. In that case, the court uses this language : " Plaintiffs would be assessed in respect of the demised premises, and it would become the duty of the defendant to protect them and the premises against such assessment by paying the tax thereon. But when we pass beyond this class of assessments and assume one made against the lessor upon his income or rents received under a lease, and otherwise in no manner based upon or measured by the lands leased, their value, character or condition, it seems to us that it would be a strained construction to say that such tax was on account of, re- lating to, or ' in respect ' of, the demised premises, within the mean- ing of the covenant." Codman v. Johnson, 104 Mass. 491. Twycross V. Fitchhurg Railroad, 10 Gray, 293. The argument that the lessors, under the covenant in the lease, intended that the amount of rent reserved should be the net income to be received by them from the property demised cannot prevail unless such intention appears from the language which the parties saw fit to employ. It would seem to us, as was said in Woodruff v. Oswego Starch Factory, supra, to be " a strained construction to say that such tax was . . . within the meaning of the covenant." Robinson v. Alleghany County, 7 Barr, 161, 163. Cafaivissa Rail- road V. Philadelphia & Reading Railway, 255 Penn. St. 269, 271. Northern Trust Co. v. Bud: & Raynor, 263 111. 222. We have examined all the cases cited in the elaborate brief filed by the counsel for the plaintiffs. The early English cases so cited must be held to stand upon the facts peculiar to each which dis- tinguish them from the case at bar. For instance, those cases which relate to church rates, poor rates, tithes and subsidies are all decided upon the language of the covenants with which they respectively deal, and do not seem to us to be in conflict with the conclusion which we have reached, nor do we find anything in the reasoning of any of the cases cited and relied on by the plaintiffs to the contrary. SECT. Il] UNIVERSITY CLUB, CHICAGO V. DEAKIN 257 It may readily be conceded that a tax " on " or " for " or " in respect of " least^d premises means tlie same thing, and that no sound distinction exists between them. What is meant by taxes for or " in respect of " the leased prem- ises ? The legal signification clearly is that the taxes are those which relate directly to the premises themselves and not to the rent re- served which, when due, is a separate and independent estate. The fundamental fact on which the rights of the parties depend is that the defendant never agreed to pay the taxes on the rent. In Cata- wissa Railroad v. Philadelphia & Reading Railway, 255 Penn. St. 269, it was said, " The income tax was not imposed by the govern- ment upon ' the demised premises or any part thereof.' ... It was imposed upon rental received by the lessor from the lessee." The words chosen by the parties cannot fairly be extended by us beyond their natural or ordinary meaning, and therefore the defendant can- not be held liable for taxes which the covenant neither by express words nor reasonable implication obliged him to pay. Smith v. Ahington Savings Bank, 165 Mass. 285. Millard v. Monk, 179 Mass. 22. Van Rensselaer v. Dennison, 8 Barb. 2;?. Woodruff v. Osivego Starch Factory, 177 N. Y. 23. Williams v. Delairare, Lacl-a- wanna & Western Railroad, 240 Penn. St. 234. Tennant v. Smith, [1892] A. C. 150. In accordance with the terms of the report, the entry must be Judgment for the defendant.'^ THE UNIVERSITY CLUB OF CHICAGO v. DEAKIN" 265 111. 257. 1914. Mr. Justice Cooke delivered the opinion of the court : Defendant in error, the University Club of Chicago, brought suit in the municipal court of Chicago against Earl H. Deakin, the plaintiff in error, to recover rent alleged to be due under a lease. A trial was had before the court without a' jury and resulted in a judgment for $2007.66. Deakin prosecuted an appeal to the A])pel- late Court for the First District, where the judgment of the munici- pal court was affirmed. A writ of certiorari having been granted by this court, the record has been brought here for review. On March 31, 1909, defendant in error leased to plaintiff in error, for a term of one year, a store room in its building at the corner of Michigan avenue and Monroe street, in the city of Chicago, at a rental of $5000 for the year. The lease provided that plaintiff in error should use the room for a jewelry and art shop and for no 1 Compare Northern Trust Co. v. Buck, 263 111. 222; Des Moines Ry. Co. V. Chicago Ry. Co., 188 Iowa 1019; Kimball v. Cotting, 229 Mass. 541; Park Building Co. v. Yost Fur Co., 208 Mich. 349. 258 UNIVERSITY CLUB, CHICAGO V. DEAKIN [CHAP. VI other purpose. It also contained the following clause, numbered 12: " Lessor hereby agrees during the term of this lease not to rent any other store in said University Club building to any tenant mak- ing a specialty of the sale of Japanese or Chinese goods or pearls." Shortly after this lease was made defendant in error leased to one Sandberg, for one year, a room in the University Club building, two doors from the corner, at a rental of $2500. The following pro- vision was inserted in the Sandberg lease : " It is further distinctly understood and agreed by and between the parties hereto that at no time during the term of this lease will the lessee herein use the demised premises for a collateral loan or pawnshop or make a spe- cialty therein of the sale of pearls." On May 1, 1909, being the first day of the term of the lease, plaintiff in error took possession of the premises and thereafter paid the rent, in monthly installments, for May and June. During the latter part of June plaintiff in error, through his attorney, sought to obtain from defendant in error a cancellation of his lease on the ground that by leasing a room in the University Club building to Sandberg and permitting him to display and sell pearls therein defendant in error had violated the provision of plaintiff in error's lease above quoted, and that for such violation plaintiff in error was entitled the terminate the lease. Defendant in error refused to cancel the lease, and on June 30 plaintiff in error vacated the premises-, surrendered the keys and refused to pay any further installments of rent. This suit was brought to enforce payment of subsequent installments of rent accru- ing under the lease for the time the jiremises remained unoccupied after June 30. The evidence offered by plaintiff in error tended to show that Sandberg made a specialty of the sale of pearls in connection with the conduct of his general jewelry business ever since he took pos- session of the room leased to him, and that plaintiff in error vacated the premises and surrendered possession because of the failure of defendant in error to enforce the twelfth clause of his lease. The evidence offered by defendant in error tended to prove that Sand- berg had not made a specialty of the sale of pearls, and that when plaintiff in error first made known his desire to assign or cancel his lease he gave as his only reason that his health was failing and that he had been advised by his physician to leave the city of Chicago. Propositions were submitted to the court by both parties to be held as the law of the case. The court held, at the request of plain- i?' tiff in error, that the lease sued upon was a bi-lateral contract, and upon a breach of an essential covenant thereof by the lessor the lessee had a right to refuse further to be bound by its terms and to surrender possession of the premises, and that a breach of the twelfth clause of the lease would be a good defense to an action for rent if the tenant surrendered possession of the premises :^7lK- SECT. Il] UNIVERSITY CLUB, CHICAGO V. DEAKIN 259 witLin a reasonable time after discovery of the breach. The court refused to hold as law propositions submitted by defendant in error stating the converse of the propositions so held at the request of plaintiff in error. The court properly held that the lease in ques- tion was a bi-lateral contract. It was executed by both parties and contained covenants to be performed by each of them. The propo- sitions so held with reference to the effect of a breach of the twelfth clause of the lease also correctly stated the law. By holding these propositions the court })roperly construed the twelfth clause as a vital provision of the lease and held that a breach of that provision by the lessor would entitle the lessee to rescind. Where there is a failure to comply with a particular provision of a contract and there is no agreement that the breach of that term shall operate as a discharge, it is always a question for the courts to determine whether or not the default is in a matter which is vital to the contract. {City of Belleville v. Citizens' llorse Raihvaij Co. 152 111. 171; People v. Central Union Telephone Co. 232 id. 260.) While there was no provision in this contract that plaintiff in error should have the option to terminate it if the terms of the twelfth clause were not observed, it is apparent that it was the intention of the parties to constitute this one of the vital provisions of the lease. It was con- cerning a matter in reference to which the parties had a perfect right to contract, and it will be presumed that plaintiff in error would not have entered into the contract if this clause had not been made a part of it. It is such an essential provision of the contract lliat a .breach of it would warrant plaintiff in error in rescinding the contract and surrendering ])ossession of the premises.^ The court was not asked to make any finding of fact, and there is nothing in the record to indicate that the judgment is based u])on any finding of fact. Whether Sandberg had, in fact, made a specialty of the sale of pearls was one of the controverted questions in the case. One of the propositions submitted by defendant in error and held by the court, stated that the conduct of a general jewelry business was not "making a specialty of the sale of pearls," within the meaning of the words quoted as they were used in the twelfth clause of plaintiff in error's lease. This can not be construed as a holding that Sandberg did not, in fact, in addition to his conduct of a general jewelry business, make a specialty of the sale of ])('avls. The following proposition was submitted by defendant in error and held by the court as the law of the case: " That [)laintiff performed all the ol)ligations imposed upon it liy its covenant that it would not i-ent any other store in its building to a tenant making a specialty of the sale of pearls, by incorporating in its lease to the second tenant that said second tenant should not make a specialty of the sale of pearls in the demised premises." ^ Berman v. Shelby, 93 Ark. 472. accord. See In re }fulUngs Clothing Co., 238 F. R. 58. Compare Rulun.'^ v. flill, 213 111. 523. 260 UNIVERSITY CLUB, CHICAGO V. DEAKIN [CHAP. VI From a consideratiou of all the propositions of law lield and re- fused, it appears that the judgment of the trial court was reached from the application of the proposition just quoted to the facts in the case. The court erred in holding this proposition as the law. By covenanting with plaintiff in error not to rent any other store in this building, during the term of plaintiff in error's lease, to any tenant making a specialty of the sale of pearls, defendant in error asumed an obligation which could not be discharged by simply inserting in the contract with the second tenant a covenant that such tenant should not make a specialty of the sale of pearls. It was in- cumbent upon it to do more than to insert this provision in the second lease. By the terms of its contract w4th plaintiff in error it agreed that no other portion of its premises should be leased to any one engaged in the prohibited line of business, and if it failed to prevent any subsequent tenant from engaging in the busi- ness of making a specialty of the sale of pearls, it did so at the risk of plaintiff in error terminating his lease and surrendering posses- sion of the premises. This precise question has never been passed upon by this court, so far as we are able to ascertain. Defendant in error cites and relies upon Lucente v. Davis, 101 Md. 526, which supports its theory. We cannot yield our assent to the doctrine there announced. Defendant in error cannot escape its obligation by the mere inser- tion of a clause in the lease with the second tenant prohibiting him from engaging in the line of business named. Plaintiff in error contracted for the exclusive right to engage in this particular busi- ness in that building. There was no privity between him and Sand- berg, and he was powerless to enforce the provisions of the contract between defendant in error and Sandberg. It is idle to say that an action for damages for a breach of contract would afford him ample remedy. He contracted with defendant in error for the sole right to engage in this specialty in its building, and if defendant in error saw fit to ignore that provision of the contract and suffer a breach of the same, plaintiff in error had the right to terminate his lease, surrender possession of the premises and refuse to further perform on his part the provisions of the contract. Tor the errors indicated the judgment of the Appellate Court and the judgment of the municipal court are reversed and the cause is remanded to the municipal court for a new trial. Reversed and remanded. SECT. Il] LEAVITT V. FLETCHER 261 LEAVITT V. FLETCHER 10 All. (Mass.) 119. 1865. Contract brought by a lessee against a lessor to recover damages for a breach of the covenant to repair. The material portions of the lease and the agreed facts upon which the case was submitted to the determination of the whole court are stated in the opinion. Gray, J. By the indenture upon which this action is brought the defendant " does lease, demise and let " to the plaintiff a brick stable standing on the lessor's own land, and a wooden carriage- house standing on land held by him under a lease from others with a provision that if they shall require the termination of that lease and the removal of the carriage-house, the plaintiff may terminate this lease. The lessor " agrees to make all necessary re- pairs on the outside of said building." The lessee agrees to pay a certain rent monthly, and to quit and deliver up the premises to the lessor at the end of the term " in as good order and condition, reason- able use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are or may be put into by the said lessor; " not to make or suffer any waste thereof; and "that the les.sor may enter to view and make improvements, and to expel the lessee, if he shall fail to pay the rent as aforesaid, or make or suffer any strip or waste thereof. And said lessee is to make all necessary repairs on the inside of the building at his own expense." The brick stable is the building mentioned in the lease next before the lessor's covenant to make outside repairs; but we have no doubt that this covenant includes all the premises leased by the defendant to the plaintiff, the carriage-house as well as the stable. Indeed in the duplicate indenture in the hands of the defendant the plural word "buildings" is substituted for "building" in this covenant. The facts agreed by the parties are as follows : Tlie carriage- house was a frame covered with matched boards, had a shingled roof and a plank floor, and on the inside was left uncovered by lath or plaster. "While the plaintiff was occupying the premises under the lease, a quantity of snow accumulated upon the roof of the carriage-house, until, at the close of a heavy snow storm, the carriage-house fell from the weight of snoAV, crushing and injur- ing the ])laintiff's carriages kept therein. The plaintiff afterwards demanded of tlie defendant tlint he sliould restore and rebuild the carriage-house, but the defendant refused to do so. There is nothing in the case to show that any negligence of either party contributed to the accident. For five months succeeding the fall of the carriage-house, the plaintiff paid to the defendant, under protest, the rent reserved in the lease; and then, ceasing to pay rent, was ejected by the defendant. The lessee's covenant to pay rent was not affected 2G2 LEAVITT V. FLETCHER [CHAP. VI by the injury to the premises, nor limited by the exception of un- avoidable casualty in his subsequent covenant, and is independent of the lessor's covenant to make outside repairs. Belfour v. Weston, 1 T. R. 310. Hare v. Groves, 3 Anstr. 687. Kramer v. CooTc, 7 Gray, 550, and cases cited. And it is not now denied that the lessee was rightly required to pay rent, and lawfully ejected for failing to pay.^ The lessee in this action claims damages, 1st. for the injury occasioned by the fall of the carriage-house; 2dly, for the failure of the lessor to rebuild it, after being expressly requested so to do. It is well settled that in a lease of real estate no covenant is implied that the lessor shall keep the premises in repair or other- wise fit for occupation. Didton v. Gey^rish, 9 Cush. 89. Foster v, Peyser, lb. 242, and cases cited. Welles v. Castles, 3 Gray, 326. The express covenant of the defendant in this case is only " to make all necessary repairs on the outside of the building." He does not covenant that the outside shall not give way, but that, if it does, he will repair it. He cannot therefore be held liable for the damages occasioned by the fall of the building. But it has been the established rule of the common law for ages that an express covenant to repair binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger. Year- book 40 Ed. III. 6. Dyer, 33 a. Paradine v. Jane, Aleyn, 27; ;S'. C. Style, 47. Compton v. Allen, Style, 162. Bulloch v. Dommitt, 6 T. R. 650. Green v. Bales, 2 Q. B. 225 ; S. C. 1 Gale & Dav. 468. Phillips V. Stevens, 16 Mass. 238. Bigelow v. Collamore, 5 Cush. 231. Allen v. Culver, 3 Denio, 294. Dermott v. Jones, 2 Wallace, 7, 8. The defendant's covenant contains no exceptions of natural causes or inevitable accident. " The outside of the building " in- cludes the whole outer shell of the building, or external inclosure 1 Decisions that covenants in leases are independent are numerous. See Chipman v. Emeric, 3 Cal. 273; Arnold v. Krigbaum, 169 Cal. 143; Rubens V. Hill, 213 III. 523; Brown v. Bragg, 22 Ind. 122; Dennison v. Read, 3 Dana (Ky.) 586; Taylor v. Finnigan, 189 Mass. 568; Meredith Assoc, v. American Drill Co., 67 N. H. 450; Stewart v. Childs Co., 86 N. J. L. 648; Lutz v. Goldfine, 72 Misc. (N. Y.) 25; Thomson-Houston Co. v. Durant Land Co., 144 N. Y. 34; Prescott v. Otterstatter, 85 Pa. 534; Johnson v. Gurley, 52 Tex. 222; Powell v. Merrill, 103 Atl. (Vt.) 259, 261; Dawson v. Dyer, 5 B. & Ad. 584; Supplice v. Famsworth, 7 M. & G. 576; Edge v. Boileau, 16 Q. B. D. 117. Compare Tedstrom v. Puddephat, 99 Ark. 193. A landlord, on abandonment of the premises by the tenant, is under no obligation to relet them; he may remain inactive and sue the tenant for rent as it matures. Merrill v. Willis, 51 Neb. 162; Milling v. Becker, 69 Pa. 182; Goldman v. Broyles, 141 S. W. (Tex. Civ. App.) 283; California Bldg. Co. v. Drury, 103 Wash. 577. And see Rice v. Dudley, 65 Ala. 68; Respini V. Porta, 89 Cal. 464. , Contra. Hinde v. Madansky, 161 111. App. 216 {semhle.) SECT. II ] MCa\RDELL V. WILLIAMS 263 of roof and sides. Green v. Bales, above cited. " The necessary repairs on the outside " are those which will make the building out- wardly complete. When those are made, then, and not before, the lessee will be bound by his covenant " to make all necessary repairs on the inside." The fact that rebuilding the outside will so far replace the whole building as to leave very little to be done on the inside, and thus make the performance of the lessee's covenant very easy, does not in any degree excuse the lessor from first performing his cove- nant. The defendant is therefore responsible for the damages suffered by the plaintiff by reason of the defendant's refusal to re- build, from the time of that refusal until the ejectment of the plain- tiff for not paying his rent ; and according to the agreement of the parties the case must stand for the assessment of those damages. Judgment for the plaintiff accordingly.^ McCAEDELL y. WILLIAMS 19 R. I. 701. 1897. Matteson. C. J. The plaintiff brings this action in assumpsit, notwithstanding the fact that the lease is a sealed instrument, his theory being that it was void as a lease except as between the imme- diate parties to it, because it was not recorded. The case shows, however, that the plaintiff, when he purchased the reversion, took also a formal transfer of the lease to himself. Having had notice of the lease prior to his purchase of the estate, the statute in regard to recording has no application. We are of the opinion that the action should have been debt or covenant. As it is probable that another suit may be brought, it may perhaps be well for us to give our opinion upon other questions which have been made. The lease contains a covenant that the lessor, Wright, should keep the exterior of the leasehold premises in good repair. Tlie plaintiff, as assignee of the reversion, took the interest in the leasehold prem- ises subject to the burden of this covenant. 2 Tayl. Land. rm shall amount unto two-thirds part at the least of the full improved value of the thing demised." Therefore in leases by parol within the exception rent service may be reserved, as in a lease at common law. — If a lessee for a term of years makes an underlease for a less term leaving a reversion, however small, and reserving a rent, it is a rent service at common law with a right of distress. And a tenant from year to year, underletting for a term of years, has a reversion with a righ't of distress. But upon an assignment of a term of years, leaving no reversion in the assignor, but reserving a rent, there is no tenure and consequently no rent service strictly so called, nor any right of distress at com- mon law; and an underlease for the Avhole term is equivalent to an assignment in this, respect. Rent may be reserved on a tenancy at will and the lessor may distrain for arrears; but it is not rent service strictly so called, because there is no tenure. — Leake, Uses and Profits of Land, pp. 373-377.2 1 Lit, § 216. 2 See Lit.. §§ 213-228: 233-240. 346. 565; Harrison. Chief Rents, pp. 2-6. As to whirli of the United State.s ha\e preserved the law of distress, see 2 Taylor, Landl. and Ten., 9th ed., §§ 558, 559. 270 PRESCOTT V. BOUCHER [CHAP. VI PRESCOTT V. BOUCHER ^ 3 B. & Ad. 849. 1832. Replevin. Avowry by the defendant as executor of the last will and testament of William Boucher, deceased, stated that the plaintiif from the 25th of March, 1829, until and after the 25th of March, 1830, and from thenc'e until and at the time of the death of the said W. Boucher, held and enjoyed the premises mentioned in the declaration, &c., as tenant to W. Boucher by virtue of a demise thereof to him the defendant theretofore made at the yearly rent of £70, and because £70 of the rent for the space of one year ending on the 26th of March, 1830, was due, and unpaid until and at the time of the death of W. Boucher, and from thence until and at the said time when, &c., continued in arrear from the plaintiff to the defendant, as such executor, he the defendant as such executor avowed, &c. Plea in bar by the plaintiif, that the said W. Boucher at the time of the making of the said demise in the avowry men- tioned, and from thence until and at the time of his death, was seised in his demesne as of fee of and in the said premises, in which, &c., and that the said demise under which the plaintiff held and enjoyed the same, &c., at the yearly rent in the avowry mentioned, was a certain demise thereof, heretofore, to wit on the 25th of March, 1825, made by the said W. Boucher, in his lifetime to the plaintiff for a term of years still unexpired, to wit, the term of seven years. General demurrer and joinder. This case was argued in last Easter Term.^ Cur. adv. vuU. Lord Tenterden, C. J., in the course of this [Trinity] term de- livered the judgment of the court. The question raised upon this record is this, Whether the executor of a person who was seised in fee of land and demised it for a term of years, reserving a rent, can distrain for the arrears of such rent, accrued in the lifetime of the testator At common law it is clear that he could not so distrain, and his power to do so, if he has any, must be derived from the provisions of the Statute 32 H. 8, r. 37, §1. The preamble of that Statute is material because the enacting part of the first section has no words distinctly describing the persons whose executors are empowered to distrain; but refers to the pre- amble by the word " such." The preamble and first section of the Act are as follows : " Foras- much as by the order of the common law, the executors, or adminis- trators of tenants in fee simple, tenants in fee tail, and tenants for term of lives, or rents services, rent charges, rents seeks, and fee farms, have no remedy to recover such arrearages of the said rents 1 Before Lord Tenterden, C. J., Littledale, Parke, and Patteson, JJ. SECT. Ill] PRESCOTT V. BOUCHER 271 or fee farms, as were due unto the testators in their lives, nor yet the heirs of such testator, nor any person having the reversion of his estate after his decease, may distrain, or have any lawful action to levy any such arrearages of rents or fee farms, due unto him in his life as is aforesaid; by reason whereof, the tenants of the de- mesne of such lands, tenements or hereditaments, out of the Avhich such rents were due and payable, who of right ought to pay their rents and farms at such days and terms as they were due, do many times keep, hold, and retain such arrearages in their own hands, so that the executors and administrators of the persons to whom such rents or fee farms are due, cannot have or come hy the said arrearages of the same, towards the payment of the debts and performance of the will of the said testators : for remedy whereof be it enacted, &c., that the executors and administrators of every ■' W. Loringe's Case, cited in Ognel's Case, 4 Co. Eep. at f . 49 b, thus : "A man was grantee for life of a rent out of a moiety of a manor, of which moiety a man was seised in right of his wife; the rent was in arrear when the grantee died, and the exe- cutors brought an action of debt against the husband only for the arrears. It was resolved: 1. That by the death of the grantee for life, the grant for life was turned into nature of debt. 2. Foras- much as the husband took the profits of the land charged with the rent when it was arrear, he only, without his wife, should be charged with an action of debt." The action was against the person who is called the pernor of the land, provided he had the same estate as the grantor. I apprehend that the reason is that the land is the debtor, as is stated by "Wilson, J., in Mills v. Auriol, 1 H. Bl. at p. 445. If a man comes into possession of land as tenant in fee, he is the pernor of the profits of the land, and was liable to a real action for the non-payment of a rent-charge created by a former 278 THOMAS V. SYLVESTER [CHAP. VI tenant in fee ; if tliis be so, since real actions are abolished, an action of debt will lie. I agree it is not necessary to go into the question whether the covenant runs with the land. Archibald, J. I also agree in thinking there is no necessity to consider the question in what cases covenants run with the land. It seems to me to be a question of remedy. When we enter into the reasons why debt would not lie for the recovery of the arrears of a freehold rent-charge, it is clear that there was no oversight in abol- ishing real actions without providing for cases of this kind. The reason why debt did not lie was that the law did not suffer the right injured to be amended by an action merely personal. It is clear from Leving's Case that where no real action could be brought, debt would lie; and inasmuch as the abolishing of real actions has removed that remedy, I quite agree with my Brothers Blackburn and Quain that in the present case the action of debt is maintain- able, and therefore our judgment must be for the plaintiff. Judgment for the plaintiff.^ St. 8 Anne, c. 14, § 4. And whereas no action of debt lies against a tenant for life or lives, for any arrears of rent, during the continuance of such estate for life or lives, be it enacted by the authority aforesaid, That from and after the said first day of May, it shall and may be lawful for any person or persons, having any rent in arrear or due upon any lease or demise for life or lives, to bring an action or actions of debt for such arrears of rent, in the same manner as they might have done, in case such rent were due and reserved upon a lease for years. § 6. And whereas tenants pvr aider vie and lessees for years, or at will, frequently hold over the tenements to them demised, after the determination of such leases : and whereas after the determina- tion of such, or any other leases, no distress can by law be made for any arrears of rent that grew due on such respective leases be- fore the determination thereof; it is hereby further enacted by the authority aforesaid, That from and after the said first day of May, one thousand seven hundred and ten, it shall and may be lawful, for any person or persons, having any rent in arrear or due upon 1 See 13 Law Quar. Rev. 288. In England at common law apparently neither the benefit nor the burden of a covenant to pay a fee-farm rent ran. Brewufpr v. Kidnill. 12 Mod. 116; Milnes v. Branch, 5 M. & S. 411; Randall v. Bigbu, 4 M. Sz W. ISn 135. See 1 Smith L. C, 9th ed., 91; Sugden. Vendor and Purch., 14th ed.. 593-596. The contrary, however, has been decided in the United States. Scott V. Lunt, 7 Pet. (U. S.^ 596; Van Renssalaer v. Read, 26 N. Y. 5.58; Tyler v. Heidom, 46 Barb. (N. Y.) 439; Strcaper v. Fisher. 1 Rawle (Pa.) 155; Herbaugh v. Zentmyer, 2 Rawle, (Pa.) 159; Hannen v. Ewalt, 18 Pa. 9; Cook V. Brightley, 46 Pa. 439. But see Van Rensselaer v. Platner, 2 Johns. Cas. (N. Y.) 24. SECT. Ill] WEBB V. JIGGS 279 any lease for life or lives, or for years, or at will, ended or de- termined, to distrain for such arrears, after the determination of the said respective leases, in the same manner as they might have done, if such lease or leases had not been ended or determined. § 7. Provided, That such distress be made within the space of six calendar months after the determination of such lease and during the continuance of such landlord's title or interest, and dur- ing the • possession of the tenant from whom such arrears became due.^ WEBB V. JIGGS 4 M. & S. 113. 1815. Debt. The plaintiff declares that one J. Webb was seised in fee of certain lands at Iver, in Buckinghamshire, and being so seised, by his will, duly executed according to the Statute, gave and be- queathed to the plaintiff an annuity or yearly rent of £10 to be issuing and payable yearly and every year during the life of the de- fendant Martha out of the said lands, and also gave and bequeathed the said lands to the said Martha and her assigns for her life, she paying thereout in manner aforesaid to the plaintiff the said an- nuity or yearly rent, and afterwards the said J. Webb died, and his will was duly proved, whereupon the said Martha became seised as of a freehold for her life of the said lands, and the plaintiff be- came entitled to the said annuity or yearly rent, and afterwards the said Martha married the other defendant Jiggs, whereby they became seised of the lands as of freehold in right of the said; Martha for her life, and so the plaintiff avers that while they were so seised, and were the pernors of the profits thereof, £75 of the said annuity or yearly rent, for seven years and a half, ending on the 25th of March 1814, became due from the defendants as the pernors, and still is in arrear and unpaid, whereby actio accrevit, &c. Demurrer. Joinder. Cur. adiK vult. LoRn ELLENBOROT^riir, C. J., on this day delivered the judgment of the court. After stating the pleadings, His Lordship said : This demurrer was argued at our sittings before Hilary Term in Serjeants' Inn Hall, when it was contended on the part of the defendants, in support of the demurrer, that at the common law an action of debt will not lie for n rent or annuity in fee, in tail, or for life, Avhile it continues a freehold interest. And this position was not denied on the other side, but it was contended that it applied only to legal common law estates, and not to devises by will; and what appears to have been said by Holt, C. J., in Eircr v. Jones, reported in 2 Ld. ^ For IpRisliition in the United States, see 2 Tiffany, Landl. and Ten., p. 1819, note 7. 280 walker's case [chap, vi Ray. 937, Salk. 415, and 6 Mod. 26, 27, was relied on; viz., "That a devisee may maintain an action at common law against the terre- tenant for a legacy devised payable out of land. For where a Stat- ute, as the Statute of Wills, 32 & 34 H. 8, gives a man a right, he shall have an action to recover it of consequence; because his right is created by Act of Parliament." But what Lord Holt is there stated to have said does not reach this objection; it is said only generally of a legacy or sum of money, not of an annuity or rent for life, in tail, or in fee; and it is to be observed, that in the case of a legacy payable out of land, unless the legatee had his remedy by action of debt, founded on the Statute, he would be wholly without remedy in the courts of common law; whereas the annuitant would not be remediless, but would have an assise to recover his annuity. And no authority has been stated where the general rule of law, which excludes the action of debt as a remedy for rent or annuity in fee, in tail, or for life, has been confined to annuities or rents created by common law conveyances, as contradistinguished from annuity or rents created by devise, nor does there seem any reason for making the distinction. It was next contended on behalf of the plaintiff, that this case was within the provisions of the 4th section of Stat. 8 Ann. c. 14, " for the better security of rents, and to pre- vent frauds by tenants ; " but the language both of the title of the Act, and of the enacting clause, shows that the Legislature contem- plated only the case of rent due from a tenant, holding by lease or demise under his landlord, — which is not this case; this being the case of two distinct and independent devises, of the land to one person for life, and to another of an annuity issuing out of the same for the life of the devisee of the land, created by the will of one and the same devisor, and without any such original privity between the devisee of the land charged with the annuity, and the devisee of the annuity charged thereupon, as subsists between a lessor and his lessee. We are therefore of opinion that the action of debt is not maintainable on the ground of this Stat, of x\nn. c. 14, any more than it is upon the other ground already considered. WALKER'S CASE " 3 Co. 22a. 1587. The case was in effect : ^ Walker leased certain lands to Harris for years, the lessee assigned all his interest to another. Walker brought an action of debt against Harris for rent behind, after the assign- ment, and whether the action were maintainable or not, was the question. . . . On great deliberation and conference with others, it was adjudged by Wkay, L. C. J., Sir Thomas Gawdy, and the 1 Part of the case is omitted. SECT. Ill] walker's case 281 whole Court of King's Bench, that the action would lie (after such assignment). And first for the apprehending of the ti'ue reason of this case, and of all the other cases, which have been urged on the other side, for the law always, and in all cases, is consonant to itself), it is to be known, that as to the matter now in question there are three man- ner of privities, sail, privity in respect of estate only, privity in re- spect of contract only, and privity in respect of estate and contract together : privity of estate only ; as if the lessor grants over his rever- sion (or if the reversion escheat) between the grantee (or the lord by escheat) and the lessee is privity in estate only, so between the lessor and the assignee of the lessee, for no contract was made between them. Privity of contract only, is personal privity, and extends only to the person of the lessor and to the person of the lessee, as in the case at bar, when the lessee assigned over his in- terest, notwithstanding his assignment the privity of contract re- mained between them, although the privity of estate be removed by the act of the lessee himself ; and the reason thereof is, — First, because the lesse.e himself shall not prevent by his own act such remedy which the lessor hath against him by his own contract, but when the lessor grants over his reversion, there, against his own grant, he cannot have remedy, because he hath granted the reversion to another, to which the rent is incident. Secondly, the lessee may grant the term to a poor man, who shall not be able to manure the land, and who will, for need or for malice, suffer the land to lie fresh, and then the lessor will be without remedy either by distress or by action of debt, which would be inconvenient, and in effect concerns every man, (for, for the most part, every man is a lessor or a lessee) ; and for these two reasons, all the cases of entry by wrong eviction, suspension and apportionment of rent are answered : for in such cases either it is the act of the lessor himself, or the act of a stranger; and in none of the said cases the sole act of the lessee himself shall prevent the lessor of his remedy, and intro- duce such inconveniences, as hath been said. The third privity is of contract and estate together, as between the lessor and the lessee himself; and Wray, Chief Justice, and Sir Tho. Gawdy said, that as he who is a bastard born hath no cousin, " so every case imports suspicion of its legitimation, unless it has another case which shall be as a cousin-german, to support and prove it." And therefore it was agreed by the whole court, that if there be lord and tenant, and the tenant makes a feoffment in fee, in this case betwixt them for the arrearages due as well before the feoffment as after, till notice, &e., it is only ])rivity as to avowry, and not any privity in estate or in temire, whicli ])rivity shall not go with the estate, and yet it is more in the realty tlum the case at bar; a fortiori in the case at bar, when the lessee assigns his interest, yet privity of contract between the lessor and lessee, as to the action of debt, 282 walker's case [chap, vi remains. And at the common law, before the Statute of Quia Emp- tores terrarum, if the tenant made a feoffment in fee to hold of the the chief lord, the feoffee could not by any tender that he could make, compel the lord to avow on him, but the lord always might avow on the feoffor, as appears in 33 E. 3, Avowry, 255. For by his own act he cannot change the avowry of his lord; which is a stronger case than the case at bar : and in the same case, if the lord granted oVer his seigniory, or if the feoffor died, there the privity, as to avowry, is destroyed ; for it is personal, and holds only between the lord him- self and the feoffee himself : so, if after the assignment of the lease, the lessor grants over his reversion, the grantee shall not have an action of debt against the lessee, for the privity of contract, as to the action of debt, holds only betwixt the lessor himself and the lessee himself: so in such case, if the lessee dies, the lessor shall not have an action of debt against his executors ; for the privity con- sists only between the lessor and the lessee. See for the case of avowry, Litt. Chap. Releases, 106, 107; 4 E. 3, 22; 2 E. 4, 6; 34 H. 6, 46; 37 H. 6, 33; 7 E. 4, 28; 24 H. 8, Dy. 4; 29 H. 8, tit. Avow. Br. 111. So if tenant in dower, or tenant by the curtesy, grants over their estate, yet the privity of action remains between the heir and them, and he shall have an action of waste against them for waste com- mitted after the assignment : but if the heir grants over the reversion, then the privity of the action is destroyed, and the grantee cannot have any action of waste, but only against the assignee; for between them is privity in estate, and between the grantee and the tenant in dower, or tenant by the curtesy, is no privity at all. See E. ^. B. 56, f. temp. E. 1, Waste, 122;'l8 E. 3, 3; 30 E. 3, 16; 36 or 38 E. 3, 23; 11 H. 4, 18. And it was agreed, that if the lessor enters for condition broken, or if the lessee surrenders to the lessor, now the estate and term is determined, and yet the lessor shall have an action of debt for the arrearages due before the condition broken, or the surrender made, as it appears by F. X. B. 120; 30 E. 3, 7; 6 H. 7, 3 b; F. N". B. 122 (against the book of 32 E. 3 Bar. 262, which is not law), and that in respect of the contract between the lessor and the lessee. Note, reader, so great was the authority and consequence of this judgment, that after this time, not only the point adjudged hath been always affirmed, but also all the differences in this case taken by Wray, C. J., and the court have been adjuda;ed, as you may learn by the cases following Hil. 36 Eliz. in the K.'s B. Rot. 420, between Ungle and Glover it was adjudged, that if the lessee for years assigns over his interest and the lessor by deed indented and enrolled according to the Statute, bargains and sells the reversion to another, that the bargainee shall not have an action of debt against the lessee, for there is no privity betwixt them.'^ But it was unanimously agreed by Popham, Chief Justice, Clench, Gawdy, 1 But see Rowland v. Coffin, post, p. 284. SECT. Ill] walker's case 283 and FEX^•ER, Justices, that after the assignment the lessor himself might have an action of debt against the lessee for rent due after the assignment.^ Trin. 37 Eliz. in the King's Bench, Rot. 1042, between Overton and Sydhall, two points were resolved by Popham, C. J., and the whole court. 1. That if the executor of a lessee for years assigns over his in- terest, that an action of debt doth not lie against him for rent due after the assignment. 2. If the lessee for years assigns over his interest, and dies, the executor shall not be charged for rent due after his death; for, by the death of the lessee, the personal privity of contract, as to the action of debt in both cases, was determined. And Mich. 40 & 41 Eliz. between George Brome, Esq., plaintiff, and Hore, defendant, the case in effect was such : A. leased to C. 3 acres of land for years rendering rent, the said C. assigned all his estate in one acre to another, A. suifered a common recovery to the use of B. in fee, who brought an action of debt against the first lessee, and it was adjudged by Popham, C. J., and the whole court, that the action did lie; for inasmuch as the lessee had assigned his interest but in part, and remained possessed of the residue, that not only the lessor, but also his assignee, or he who claimeth under him shall have an action of debt for the whole rent against the lessee, for there was not privity of contract only, but also privity in estate and contract together; and therefore the action in this case shall go with the estate; as at common law, if before the Statute of Quia Emptorcs terrarum the tenant had made a feoffment in fee of part of the tenancy, there was not any apportionment, but the lord, or his grantee, should avow on the feoffor for as much as he remained tenant in respect of the residue: but if he had made a feoffment of the whole, then the grantee of the lord should not avow on him, as it hath been said before. See 22 Ass. 52; 24 H. 8, 4 b; 32 H. 8, Br. Accept, for this matter. And Popham, C. J., in this case said, that in case when rent reserved on a lease for years shall be appor- tioned, if in an action of debt the lessor demands more quam oportet; yet on nihil debet the lessor shall recover as much as shall be appor- tioned and assessed by the jury, and shall be barred for the residue. And Pasch. 41 Eliz. Rot. 2485, in the Common Pleas, Samuel Mar- row brought an action of debt against Francis Turpin and IF., Turpin, administrators of Geo. Turpin, and declared on a demise made by the plaintiff by deed indented of certain land to the intestate for years rendering rent, and for rent behind after the death of the intestate, the action was brought; the defendants pleaded, that before the rent behind, one of the defendants had assigned all his interest to Thomas Boorde, of which assignment the plaintiff had notice, and accepted the rent by the hands of the assignee, duo at 1 And see HnzeUon v. Chafin. 197 Par. (Kan.) 870. 871; Knnnwha-Gaulcy Coal Co. V. Sharp, 73 W. Va. 427, 430; 52 L. R. A. N. S. 968 note. 284 HOWLAND V. COFFIN [CHAP. VI a day after the assignment, and before tlie day on wliieh the rent was due which is now demanded, upon which the plaintiff did demur. And it was adjudged against the plaintiff, because the privity of the contract, as to the action of debt, was determined by the death of the lessee; and therefore, after assignment made by the adminis- trator, debt did not lie against the administrator for rent due after the assignment, according to the judgment given in Overton and SydhaU's Case before. Also it was said, if the lessee assigns over his term, the lessor may charge the lessee or his assignee at his election ; ^ and therefore if the lessor accepts the rent of the assignee, he hath determined his election, and shall not have an action against the lessee afterwards for rent due after the assignment,- no more than if the lord once accepts the rent of the feoffee, he shall not avow on the feoffor; and by these judgments and resolutions you will the better understand your books; betwixt which prima facie seems to be some diversity of opinions. Vide 44 E. 3, 5, & 44 Ass. 18; 9 H. 6, 52, by Paston, which agree with the judgment of Sir Christopher Wray. See 8 Eliz. Dyer, 247, and the qucere there made is now well resolved. HOWLAND ET AL. v. corri:^^ 12 Pick. (Mass.) 125. 1831. This was an action of debt for rent from June 3, 1823, to Decem- ber 3, 1824, and from June 3, 1825, to December 3, 1829, at $75 a year. It was agreed that the premises for which the rent was claimed, were, on May 6, 1822, the property of Uriah Brownell, who, on that day, by an instrument under seal, demised the same to one John Randolph for the term of twelve years from that date, Randolph yielding rent therefor at the rate of $75 a year, payable semi-annually. The defendant purchased all the right which Ran- dolph had in the premises, and afterwards the plaintiffs purchased all the right which Brownell had therein. If the defendant was bound to pay the amount of rent reserved in the indenture of lease, he was to be defaulted and damages to be assessed accordingly; but if he had a right to show that the 1 Lessor may sue assignee of lessee in debt, McKeon v. Whitney, 3 Den. (N. Y.) 452. - Marsh v. Brace, Cro. Jas. 334, accord. See Harmony Lodge v. White, 30 Ohio St. 569. Compare Manley v. Dupuy, 2 Whart. (Pa.) 162; Adams v. Burke, 21 R. I. 126, post, p. 389 ; 52 L. R. A. N. S. 973 note. Whether an assignee of a lease is liable for rent acciiiing after he has reassigned the premises, see Johnson v. Sherman, 15 Cal. 287; Hartman v. Thompson, 104 Md. 389; Harmon Co. v. Star Breimng Co., 232 Mass. 566; Meyer v. Alliance Co., 86 N. J. L. 694, affirming 84 N. J. L. 450; Durand v. Curtis, 57 N. Y. 7. SECT. Ill] HOWLAND V. COFFIN 285 premises were not of that annual A-alue, a new trial was to be granted and damages to be assessed by the jury. "Wilde J. delivered the opinion of the Court. We entertain no doubt, notwithstanding the dictum in Walker's case, 3 Co. Rep. 22, that this action is w^ell maintained. The only point of defence now made was recently decided by this Court in an action between the same parties, and we have heard nothing since to change the opinion Ave then formed. The action is founded on a privity of estate between the parties. The defendant took the term subject to all the advantages and disadvantages attached to it by the terms of the lease. The covenant for the payment of rent ran with the land and by the assignment of the term became binding on the de- fendant. So by the assignment of the reversion the plaintiffs became entitled to all the rights of the lessor. It is said in note 6, 1 Wms's Saund. '241, that at common law an action of debt lay for the assignee of the reversion, for the recovery of rent, which is incident to the reversion. And if this were not so at common law, it is clearly so by the statute of 32 Hen. 8, c. 34, which seems to have been overlooked in Walher's ca.'tp. The law there laid down on the point in question, is not supported by the subsequent authorities, and cannot be sustained on principle or any reasonable construction of the statute. Walker's case, though decided right as to the question on Avhicli the case turned, has since been questioned as to other points not now under consideration, and which therefore it is not necessary now to discuss. Vide Hammond on Parties to Actions, 116 to 133. According to the agreement of the parties, the defendant is to be defaulted.'^ 1 See Collins v. Pratt, 181 Mass. 345; Tnylor v. Kennedy, 228 Mass. 390; Reidy v. Kennedy, 233 Mass. 514. In Thursby v. Plant, 1 Lev. 259, a les.see who covenanted to pay rent was held liable in covenant to the assignee of the lessor. And in debt in Outtoun v. DuKn, 72 Md. 536. Compare English v. Key, 39 Ala. 113; Daviren v. American Power Co., 91 Me. 334, 337. " Where a lessee for a term of years parts with his whole term to a third party, it is called an assignment, and the assignee thereby becomes the tenant of the original lessor and subject to all the covenants in the lease, which run with the land, just as the lessee was. The privity of estate and privity of contract still subsist between the lessor and assignee, as it did between the les.sor and lessee. Taylor's Landlord and Tenant, §§ 436-37. But when a tenant makes a lease for a less niunber of j'ears than his own term, it is not an assignment, but is called an underlease; and it is well settled that as between the original lessor and the undertenant there is neither privity of estate nor contract, so that between these parties no advantage can be taken of the covenants in the lease, and therefore the lessor can not sue an undertenant upon the lessee's covenant to pay rent, nor can he maintain an action for use and occupation against the undertenant unless under an agreement, as the relation of landlord and tenant does not subsist between them. Holjord v. Hatch, Doug. 183; Cnuwe v. Bughy, 3 Wils., 234; Strange 405; Style, 483; Taylor's L. & T., §§ 108, 448, and note, 286 WINNISIMMET TRUST CO. V. LIBBY [CHAP. VI WIlSrNISIMMET TKUST CO. 7;. LIBBY ET AL. 232 Mass. 491. 1919. Contract for rent alleged to be due to the plaintiff upon Decem- ber 2, 1916, and January 2 and February 2, 1917, as assignee of the rent from the lessor of premises known as the "Dream Theatre" in that part of Saugus known as Cliftondale, of which the defendants were lessees. "Writ in the Municipal Court of the City of Boston dated February 10, 1917. At the trial in the Municipal Court it appeared that on March 2, 1916, the original owner of the premises, James S. Duval, let the premises by an instrument in writing to the defendants for the term of three years; that on April 27, 1916, Duval executed and delivered to the plaintiff an assignment under seal of rents to fall due under the lease (excepting the rent for the last three months) as security for a debt; that on October 16, 1916, Duval conveyed the premises by quitclaim deed to one George W. Green; that this deed was recorded on October 17, 1916; that Duval did not notify the defendants or Green of the assignment to the plaintiff; that on November 1, 1916, Green, and on jSTovember 2, 1916, Duval, by notices in writing directed the defendants to pay rent to Green, the purchaser; that on N'ovember 28, 1916, for the first time, the plain- tiff notified the defendants of its assignment and requested payment of rents described therein to it, and that the defendants paid to Green the rent falling due on N^ov ember 2 and December 2, 1916, and January 2, 1917. By various requests for rulings which were refused by the judge, the defendants raised the question stated in the opinion. The judge found for the plaintiff in the sum of $153.75 and, at the re- quest of the defendants, reported the case to the Appellate Division. The report was dismissed, and the defendants appealed. Pierce, J. This is an action of contract brought to recover certain rents reserved under a written lease given by the plaintiff's assignor to the defendants. The defendants' requests for rulings raise the question whether an assignment under seal, of rent to become due under a written lease for a term less than seven years after notice to the lessee, is effectual as against a subsequent pur- chaser of the lessor's reversion without notice of the prior assignment. When rent is reserved, it is incident, though not inseparably so, to the reversion. Co. Litt. 143 a, 151 b. The rent may be granted away reserving the reversion; and the reversion may be granted away reserving the rent by special words.^ By a general grant Com., Dig., cov. (e. 3.) Kennedy v. Cope, Doug. 56." — Per Bynum, J., in Krider v. Rammy, 79 N. C. 354, 357. See Girard Trust Co. v. Cosgrove. 113 Atl. (Pa.) 741; 1 Tiffany, Land), and Ten., § 151. 1 See Crosby v. Loop, 13 111. 625; Brownson v. Roy, 133 Mich. 617; Moffat v. Smith, 4 N. Y. 126. SECT. Ill] WINNISIMMET TRUST CO. V. LIBBY 287 of the reversion the rent will pass Avith it as an incident to it; but by a general grant of the rent the reversion will not pass. Demarest v. WUlard, 8 Cowen, 206. Burden v. Thayer, 3 Met. 76. Beal v. Boston Car Spring Co. 125 Mass. 157. Rent, that is the right to recover future instalments of rent as they become due under the lessee's covenant to pay rent in the future, is not a chose in action, but is an incorporeal interest in land which can be assigned only by an instrument under seal. "When assigned, the assignee holds the interest in his own right and may sue for it in his own name. Patten v. Deshon, 1 Gray, 325, 327. Bridgham v. Tileston, 5 Allen, 371. In this Commonwealth a lease for less than seven years from the making thereof is valid against hona -fide purchasers without actual notice. R. L. c. 127, § 4. Toupin v. Peahody, 162 Mass. 473, 477. A like exemption from the operation of the recording acts necessarily attaches to that incorporeal interest in real estate denominated rent when severed from the reversion to which it is an incident. A similar rule is applied to existing uiirecorded easements. Shaughnessey \. Leary, 162 Mass. 108, 112. The request of the defendants for a ruling that "A deed of the leased premises, accompanied by a written direction from the lessor to the lessees to make the payments due under the lease to the new owner, gives the new owner rights which are superior to an assignee of the rents where no notice of the assignment is given, either to the lessee or to the grantee of the premises until after the deed of the premises has been delivered," could not have been given, because the lessor was not the owner of the rent when he directed the lessee to make payment of the rents to the pur- chaser of the reversion, and because a man cannot grant nor charge that which he has not. Jones v. Richardson, 10 Met. 481. Moody V. Wright, 13 Met. 17. Codman v. Freeman, 3 Cush. 306. The assignment of rent is governed by the rule of caveat emptor. Stone V. Patterson, 19 Pick. 476. Taylor v. Kennedy, 228 Mass. 390, relied on by the defendants, does not support their contention, because in that case the plaintiffs claimed to recover in their own name the rent " under a contemporaneous parol agreement . . . that the plaintiffs should collect the rent for the remainder of the term and pay it to the grantee." It is plain that that action could not be maintained by the plaintiff as assignee of the rent or under an equitable assignment of the right to collect rent. Bridgham v. Tileston, supra. It follows that the order of the Municipal Court, "Report dis- missed," is affirmed. So ordered.'- ^ A lessee for years who has as.«igned his whole term rendering rent may recover in an action of debt rent from such assignee. Nrrrromb v. Harvey, Carth. 161. See Patten v. Deshon, 1 Gray (Mass.) 325; Williams v. Hayward, 1 E. & E. 1040. 288 HORN V. BEARD [CHAP. VI HORN V. BEARD [1912] 3 K. B. 181. 1912. Appeal from the "Westminster County Court. The facts are stated at length in the judgment of the Court de- livered by Lush J. The following is a short statement sufficient to indicate the point decided. The defendant was tenant of a flat in Jermyn Street for a term of three years from Midsummer, 1908, at a yearly rent of 160/. His lessors were Messrs. Adams and Biggs, who were the free- holders. The defendant regularly paid his rent to a firm of solici- tors, Messrs. Le Brasseur & Oakley, who acted as agents for Adams and Biggs, the lessors. Adams and Biggs mortgaged their reversion to the Yorkshire Penny Bank, who went into possession and made a lease for twenty-one years to the plaintiff to take effect in prsesenti. The defendant knew nothing of the mortgage to the bank or of the lease by the bank to the plaintiff. When the defendant took his lease the plaintiff was manager of the flats and was known to the defendant in that and in no other capacity. When the plaintiff became lessee to the Yorkshire Penny Bank, Le Brasseur & Oakley acted as agents for him and continued to receive the rent paid by the defendant. In October, 1910, certain building operations were being carried on in adjoining premises. The defendant complained that they constituted a nuisance and made his flat uninhabitable. He wrote to Messrs. Le Brasseur & Oakley saying that he would not pay the rent due on December 25, 1910. In November, 1910, the plaintiff offered to pay the defendant 40Z., 20?. down and 201. at the end of the defendant's lease, for the right to let the flat if he could find another tenant. The defendant, supposing, as he said, that the plaintiff was still acting as manager of the flats, accepted the offer. Soon after Midsummer, 1911, when his lease terminated, the defendant claimed the 201. payable under the agreement. The plaintiff then brought an action in the county court for 40/., being rent for the quarter ending December 25, 1910, which had not been paid, and giving credit for the 20/. due under the agreement. The defendant denied that the plaintiff was his landlord and on that footing counter-claimed for that 20/. In that alternative, if it should be held that the plaintiff was his landlord, he claimed damages for eviction and disturbance. The county court judge gave judgment for the plaintiff on the claim and counter-claim. As to the claim he held that there had been an attornment by the defendant to the plaintiff and that the rent was therefore due. As to the counter-claim he held on the facts that the agreement of November, 1910, by the plaintiff to pay the 40/. SECT. Ill] HORN V. BEARD 289 was partly in consideration of the inconvenience wMcli the de- fendant had suffered through the building operations. The defendant appealed. As appears from the judgment below, the Court, differing from the county court judge, held that there was no evidence of any attornment by the defendant to the plaintiff. As to the counter- claim they found no evidence that the agreement of November, 1910, had any reference to the disturbance or eviction of the defendant. The only point of law argued was whether in order to entitle the plaintiff to recover the rent due on December 25, 1910, an attornment by the defendant was necessary; Lush J.^ On these facts the plaintiff contended before the learned county court judge that the defendant had attorned and become his tenant. This the defendant denied. The learned judge held that the defendant had negotiated with the plaintiff as his landlord in respect of the building operations, and that the correspondence with the plaintiff as his landlord amounted to an attornment en- titling the plaintiff to sue for the rent. We do not think that on the correspondence there is any sufficient evidence of aji attorn- ment. It appears to us that the correspondence shews the contrary. The defendant more than once asked for information as to what the plaintiff's interest in the premises was, and never could obtain an answer until after the tenancy had come to an end, and the plaintiff, in our opinion, failed to establish an attornment. Before us, however, Mr. Carthew, on behalf of the plaintiff, con- tended that by reason of the statute 4 & 5 Ann. c. 3 ^ no attorn- ment was necessary. He contended that the lease from the mort- gagees to the plaintiff was the grant of a reversion within the meaning of the statute, and that therefore the necessity of an attornment was dispensed with. We are of opinion that this contention is well founded. The statute says that " all grants or conveyances there- after to be made by fine or otherwise of any manors or rents or of the reversion or remainder of any messuages or lands shall be good and effectual to all intents and purposes without any attorn- ment of the tenants .... as if their attornment had been had and made." It is not possible now, having regard to the authorities, to contend that a lease for years is not the grant of a reversion expectant on the determination of an existing shorter term if the lease is made to take effect in prcesenti. In Piatt on Leases, vol. 2, pp. 57 and 58, the following passage occurs: "When, during a 1 The court's statement of the facts and its opinion on the counterclaim are omitted. 2 Stat. 4 ation of what was so held or enjoyed ; and if in evidence on the trial of such action any parol demise or any agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff in 1 See 1 Tiffany, Landl. and Ten., pp. 1069. 1127. whore actions by partial assignees of the reversion and actions again.-^t partial assignees of the lease- hold are discu.'j.'jrd. Bancroft v. Vizard, 202 Ala. 618; Rosenberg v. Taft, 111 Atl. (Vt.) 583, 586. 296 ARDS V. WATKIN * [CHAP. VI sucli action shall not therefore be nonsuited, hut may make use thereof as an evidence of the quantum of the damages to be recovered.^ 1 " The ' difficulties ' here referred to would seem to be two. If, before this statute, the plaintiff counted upon a quantum meruit, and the evidence disclosed a demise for a sum certain, he would be non-suited for a variance. Secondly, if he declared for a sum certain, he must, as we have seen, prove an express promise at the time of t^e demise. The statute accomplished its purpose in both respects. But it is in the removal of the second of the difficulties mentioned that we find its chief significance. Thereby indebitatus assumpsit became concurrent with debt upon all parol demises. In other words, the statute gave to the landlord, in 1738, what Slade's case gave to the seller of goods, the lender of money, or the employee, in 1602; namely, the right to sue in assumpsit as well as in debt, without proof of an inde- pendent express promise. " The other counts in indchitatus assumpsit being the creation of the courts, the judges found no great difficulty in gradually enlarging their scope, so as to include quasj-contracts, where the promise declared upon was a pure fiction. Thus, one who took another's money, by fraud or tres- pass, was liable upon a count for money had and received. Thomas v. Whip, Bull. N. P. 130; Tryon v. Baker, 7 Lans. 511, 514; one who wrongfully com- pelled the plaintiff's servant to labor for him, was chargeable in assumpsit for work and labor, Stockell v. Watkiiis, 2 Gill & J. 326; and one who con- verted the plaintiff's goods, must pay their value in an action for goods sold and delivered. " But, indebitatus assumpsit for rent being of statutory origin, the courts could not, without too palpable a usurpation, extend the count to cases not within the act of Parliament. The statute was plainly confined to cases where, by mutual agreement, the occupier of land was to pay either a de- fined or a reasonable compensation to the owner. Hence the impossibility of charging a trespasser in assumpsit for use and occupation." Ames, Lectures on Legal Histor>% pp. 170-171. See Gibson v. Kirk, 1 Q. B. 850. Occasionally Stat. 11 Geo. II, c. 19 § 14 is regarded as in force in this country. Kline v. Jacobs, 68 Pa. 57. Similar statutes have been enacted in some states. See 2 Tiffany, Landl. and Ten., p. 1856. In others it has been said that the action for use and occupation of real estate exists independently of statute. Gunn v. Scoril, 4 Day (Conn.) 228; Lockivood v. Lockwood, 22 Conn. 425; Crouch v. Brilcs, 7 J. J. Marsh. (Ky.) 255; Gould v. Thompson, 4 Met. (Mass.) 224; Dwight v. Cutler, 3 Mich. 566; Hoggsett v. Ellis, 17 Mich. 351; Eppes v. Cole, 4 Hen. & M. (Va.) 161. But see Long v. Bonner, 11 Ired. Law (N. C.) 27. As to the liability for use and occupation of a purchaser of land who enters under a contract before the conveyance is executed, see Carpenter v. United States, 17 Wall. (U. S.) 489; Gould v. Thompson, 4 Met. (Mass.) 224; Winterbottom v. Ingham, 7 Q. B. 611. "Assumpsit for rent. No express promise is shown, and the law does not imply one from the facts. The defendant was tenant of the plaintiff's father. He died, and the tenant denies the title of the plaintiff, who claims to hold as heir. As to him, the tenant has become a disseizor. There was no relation of landlord and tenant between them from which the law implies assumpsit for rent or use and occupation. Rogers v. Libhey, 35 Maine, 200; Howe V. Fu-ssell, 41 Maine, 446; Emery v. Emery, 87 Maine. 281. Title to land should not be tried in assumpsit " — Opinion of the Court in Burdin v. Ordway, 88 Me. 374. That a trespasser to real estate is not liable in assumpsit for use and SECT. Ill] NEWMAN V. ANDERTON 297 NEWMAN V. ANDERTON 2 B. & P. N. S. 224. 1806. Replevin. The plaintiff in his declaration complained that the defendant took certain goods and chattels of the plaintiff in a bed- room and shop, and unjustly detained them, against sureties and pledges. The defendant avowed the taking in the bedroom, because " the plaintiff, for the space of sixteen weeks and more next before, aijd ending, ^c, enjoyed the said bedroom in which, &c., together with a certain other room and apartment, also being in and part and parcel of the said dwelling-house in the declaration mentioned, with certain furniture and effects with which the said bedroom in which, &c., and the other said room and apartment, with the appur- tenants, were furnished under a demise thereof theretofore made by the defendant to the plaintiff, at the weekly rent of 13s. of lawful money of Great Britain payable weekly on the Thursday in every week, and during all that time held the same of the defendant by virtue of the said demise, as his tenant thereof." And because £12 were in arrear, avowed the taking and prayed a return. The plaintiff took judgment for so much as related to the shop; and as to the avowry, pleaded that he did not hold the said bedroom together with the said other room and apartment in the said declara- tion mentioned, and certain furniture and effects with which the said other room and apartment were furnished under a demise there- of theretofore made by the defendant to the plaintiff, at the weekly rent of 13s. payable on the Thursday in every week in manner and form, &c. On this plea issue was joined. At the trial before Sir James Mansfield, C J., at the Westminster Sittings after last Hilary Term, a verdict was found for the de- fendant. A rule having been obtained, calling upon the defendant to show cause why this verdict should not be set aside, upon the ground that the defendant could not be entitled to distrain for the rent of ready furnished lodgings. Sir James Maxspielh, C J. Cases like this must have very often occurred, and yet it does not appear that the right of distress has ever before been called in question. The difficulty of the case consists in this, that in London and other towns it scarcely ever happens that any house is let without some goods being let with it. occupation, ser Lluyd v. Ilnugh, 1 How. (U. S.). 153. 159; Hurley v. Lamoureaux. 29 Minn. 138; Cnthrnrt v. Malthm.-i. 105 S. C. 329. Compare Watson V. United States. 263 F. R. 700; Jonrs v. DonmUy. 231 Mass. 213: Cavanaugh v. Cook. 38 R. I. 25; Roukou.'^ v. DrOraft. 99 Atl. (R. I.) 821; Phillips v. Homfray, 24 Ch. D. 439; 23 Central L. J. 387. 298 NEWTON V. SPEARE LAUNDERING CO. [CHAP. VI and yet one rent is always reserved. In the case of a brewhoiise it is common to let the utensils with it, and yet I never heard it doubted that the landlord might distrain for rent. Whether the goods be worth five shillings or five hundred pounds, the case must be the same. We will inquire into the matter, and give our opinion in a few days. Cur. adv. vult. On this day Sir James Mansfield, C. J., said: Upon this ques- tion no authorities have been cited either on the one side, or the other. But it must occur constantly that the value of demised premises is increased by the goods upon the premises, and yet the rent re- served still continues to issue out of the house or land, and not out of the goods; for rent cannot issue out of goods. In Spencer's Case, 5 Co. 17, it is resolved that if a man lease sheep or other stock of cattle, 'or any other personal goods, for any time, and the lessee covenants for him and his assigns at the end of the time to deliver the like cattle or goods as good as the things letten were, or such price for them, and the lessee assigns the sheep over, this covenant shall not bind the assignee; for it is but a personal con- tract ; and it is added " the same law, if a man demises a house and land for years with a stock or sum of money, rendering rent, and the lessee covenants for him, his executors, administrators, and assigns, to deliver the stock or sum of money at the end of the term, yet the assignee shall not be charged with this covenant, for al- though the rent reserved was increased in respect of the stock or sum, yet the rent did not issue out of the stock or sum, but out of the land only." The material words in that resolution ai'e those which declare that where land is leased with stock upon it, the rent still continues to issue out of the land only. In that case, therefore, as well as any other, the person to whom the rent is due may dis- train for the same; and consequently the landlord here, who was not paid his rent, has pursued his legal remedy of distress, though the rent issued out of ready furnished lodgings. , Rule discharged.^ NEWTON V. SPEARE LAUNDERING CO. 19 R. I. 546. 1896. Defendants' petition for a new trial. Stiness, J. The defendants hired of the Newport Laundry Co. a laundry plant, comprising both real and personal estate. May 14, 1894, at $125 a month. TJie testimony shows that a lease \yas 1 Armstrong v. Cummings, 58 How. Pr. (N. Y.) 331 ; Stein v. SteJy, 32 S. W. (Tex. Civ. App.) 782; Fareivell v. Dickenson, 6 B. & C. 251. accord. See Lathrop v. Cleiris, 63 Ga. 282; Mickle v. Miles, 31 Pa. 20; ¥6116/8 Appeal, 99 Pa. 52. Compare Emott v. Cole, Cro. Eliz. 255. SECT. Ill] NEWTON V. SPEARE LAUNDERING CO. 299 talked about and drawn np, but it was not signed by all of the lessors nor by the defendants, and the only defendant who testified denied that it Avas agreed to. The judge who tried the case treated the hiring as one from month to month, and we think he was correct. The real estate was subject to a mortgage, under which it was sold at auction September 8, 1894; and the plaintiff, being the pur- chaser, brings this action to recover the rent due from September 14, 1894, to May 14, 1895, the time when he took possession of the property. Upon these facts the judge directed a verdict for the plaintiff for the amount claimed, and the defendants ask for a new trial upon exceptions to such ruling. We think that the direction was erroneous. The defendants' agreement to pay $125 per month was for the use of the real estate, together with the machinery and other per- sonal property needed in the business. The testimony does not show an attornment by them to the plaintiff, nor an agreement with him as to the amount which he should receive for the real estate alone. According to the record and the ruling of the judge, the personal property remained the property of the Newport Laundry Co. after the foreclosure of the mortgage. Taking the case as it is presented, the most that the plaintiff can demand is what the use of the real estate was worth, distinct from what the use of the machinery was worth. The previous agreement, as an entirety, came to an end when the mortgage was foreclosed. It is for the jury to assess this sum according to the proof, as in ordinary cases, for use and occupa- tion. Buffum V. Deane, 4 Gray, 385. The ruling of the court seenns to have rested upon two points: First, that the defendants had acknowledged that they were liable at the rate of $125 per month; and, second, that if Mr. Horgan, one of the original lessors, sat by and saw the plaintiff claim the rent, he could not collect it again. As to the first point, it appears that the plaintiff did so state; but from his whole testimony it is clear that he meant only to say that they admitted that the rent was so much per month, but denied that they were liable to him, and some of these statements were in the course of an attempt to compromise. An admission that the rent was originally $125 per month is not an admission that the defendants wore liable to the plaintiff for that sum for the real estate alone. As to the second point, whether the original lessors would be estopped or not by the plaintiff's recovery of the full amount then agreed upon, it is also clear that the plaintiff had no right, against the objection of the defendants, to recover more than the use of the land was worth, and that tliev had the right to have his judgment limited to that sum. Tbe assessment of the plaintiff's claim slionld have been left to the jury, and therefore a new trial must be granted. 300 PAXTON V. KENNEDY [CHAP. VI Another question is made, whieh should be disposed of for the purposes of another trial. The defendants claim to have aban- doned the property February 14, 1895; to have sent the key to the plaintiff, and that they are not liable for the rent after that time. The plaintiff admits that the key was sent to his office, but he denies that he took any possession of the property until May 14, 1895. The judge correctly ruled that, if the defendants were tenants from month to month, they were liable for the rent until they terminated the tenancy by proper notice, or until a surrender and acceptance of the premises by the owner. Sending a key to the owner, without m.ore, is not such a surrender and acceptance as will discharge a tenant's liability for rent. Townsend v. Albers, 3 E. D. Smith (K Y.) 560; Withers v. Larrabee, 48 Me. 570; Pier v. Carr, 69 Pa. St. 326.^ PAXTOTi V. KENNEDY 70 Miss. 865. 1893. Cooper, J.,^ delivered the opinion of the court. The appellee, being indebted to appellant several hundred dol- lars, leased from him for a term of years a tract of land, at a fixed rent of one hundred dollars per annum, and, at the same time and by the same writing, promised to pay to appellant, in five equal annual payments, the sum of his past indebtedness as rent, and also agreed to execute his notes for the agreed rent and for the ante- cedent debt, the exact amount of which was not then known, by which notes the said debt was to be stipulated to be paid as rent. The appellee was let into possession of the leased premises, but refused to execute the notes stipulated for in his contract. The appellant sued out an attachment for rent, including in his demand the sum of one hundred dollars, and also one-fifth of the sum of the antecedent debt. The tenant brought replevin for the property seized, and the landlord avowed, justifying the distress. On the trial, the appellant offered to prove that at the expiration of the first year the appellee paid, under his contract and according to its terms, both 1 Part of the case is omitted. Buffum v. Deane, 4 Gray (Mass.) 385; Salmon v. Matthews. 8 M. <^- W. 827, accord. Fay v. Holloran, 35 Barb. (N. Y.) 295, contra. See Whitaker V. Hawley, 25 Kan. 674; Newton v. WiUon, 3 Hen. & M. (Va.) 470; Le Tavener's Ca.se, Dyer 56 a; Read v. Laumae, Dyer 212 b. Compare Jordan v. Indianapolis Water Co., 159 Ind. 337; Jones v. Smith, 14 Ohio 606. As to whether rent issues out of licenses or easements, see Buszard v. Capel, 8 B. & C. 141; Williams v. Hayivard, 1 E. & E. 1040; Hancock v. Austin, 14 C. B. N. S. 634; Selhy v. Graves. L. R. 3 C. P. 594. Compare McMorran Milling Co. v. Little Co., 201 Mich. 301. 2 Only the opinion is given. SECT. Ill] HOBY V. ROEBUCK AND PALMER 301 the sum of one hundred dollars and one-fifth of the antecedent debt, which evidence, upon objection of the plaintiff, was excluded. Verdict was had and judgment rendered for the landlord for the fixed sum of one hundred dollars, from which he appeals and in- sists upon his right to recover by distress the aliquot of the ante- cedent debt, according to the contract of lease. The claim of appellant cannot be maintained. The right and the remedy of the landlord are established and fixed by the law, and rest upon the existence of the relation of landlord and tenant, and it is essential that the demand of the landlord shall be for the rent of the land. The agreement of the tenant to pay an antecedent debt as rent does not and cannot change its nature or bring it within the protection of the statute. A past-due debt is not rent, and calling it such, or agreeing that it shall be .so treated and considered, cannot entitle the creditor to resort to the summary remedy for its collection. The contract of the debtor is but an ordinary promise to pay, and for its breach the creditor must resort to the usual remedies. Juchjmcnt affirmed.^ HOBY V. EOEBUCK AND PALMEK 7 Taunt. 157. 1816. Thls was an action of assumpsit. Upon the trial of the cause before Gibhs C. J. at the sittings after Trinity term, 1816, it appeared that the Plaintiff had leased for twenty-one years to Roebuck, who afterwards took Palmer into partnership in his trade, for the pur- poses of which the demised premises were used, but Avere not sufficiently large; Avherefore the Defendants jointly agreed by parol with the Plaintiff, that if he would erect an additional story over the house, they would pay him, during the residue of the demised term, besides the former rent, 10 per cent, on the cost. The build- ing was erected, and after they had paid the increased rent for some years, Palmer, before the debt accrued for which this action was brought, quitted the partnor.ship and the premises. Lens and Vaiif/han Serjts. contended that Palmer was not liable in this action, for that this contract for an additional rent was a demise of the new biiildings, and ought, according to the statute of frauds, to have been in writing. Gihhs C. J. thought otherwise, for that Avhat.soever was built, instantly became parcel of the premi.ses already demised; and that this Avas a collateral contract, to Avhich Palmer, no less than Koebuck, was chargeable during the residue of the term ; and the jury found a verdict for the Plaintiff. 1 See First Bank v. Flynn. 117 Iowa 493; Miners' Bank v. Hcilncr, 47 Pa. 452; Smith v. Maplcback, 1 T. R. 441. 302 HOBY V. ROEBUCK AND PALMER [CHAP. VI Vauyhan now moved for a new trial : he urged that the increased payment might be recovered by distress on the premises, as rent; Palmer's interest, in respect of which he was liable, was only co- extensive with his partnership with Roebuck. The Court held, that the original lease still existed: the new contract was, therefore, no demise of the premises. Only the original rent could be distrained for, and this was merely a collateral agreement to pay so much more money during the residue of the term, if the lessor would make the desired expenditure. Rule refused} 1 Donellan v. Read, 3 B. & Ad. 899, accord. " Distress is a remedy that can be employed only for the recovery of what is properly rent and is reserved as such. It may be sustained where the sum originally stipulated for has been increased by agreement, as in Brisben v. Wilson, 60 Pa. 452, where the tenant agreed to pay the additional sum in consideration of the landlord's acceptance of the surrender of the lease; or where the lease provides for an increase if improvements are made to the property demised, as in Detwiler v. Cox, 75 Pa. 200; or where the lessee agrees to pay a fixed sum for gas furnished by the landlord and used on the premises, as in Fernwood Masonic Hall Assn. v. Jones, 102 Pa. 307. In these cases the additional payments were to be made to the lessor as rent, and were certain in amount or certain in the sense that they could be made certain. Id certum est quod cerium reddi potest. But covenants that re- late to the use of the premises, but not to the payment to the lessor for the use, do not give the right to distrain. In Latimer v. Groctzinger, 139 Pa. 207, it was held that a covenant not to engage in another business on the premises under penalty to be paid in the n&ture of rent in monthly in- stallments was a mere personal covenant for the payment, not of rent but of a penalty, and that the incident of distress did not attach to it. Fern- wood Masonic Hall Assn. v. Jones, supra, relied on by the appellant, is not an authority in his favour. In that case the gas to be paid for by the tenant was manufactured on the premises and furnished by the lessor, and the payment was to be made to him. This appears in the report of the case and more fully in the paper-books. We do not decide that the rent might not be resen-ed in such a manner as to include the water rent and give the right to distrain for it. But in this case there was no such stipulation. Standing alone a covenant to pay water rent is a covenant to pay to the party entitled, in this case the municipality, and it cannot be enforced by distress." — Per Fell, J., in Evans v. Lincoln Co., 204 Pa. 448, 452. " It will appear from an examination of the decisions of the Supreme Court of Pennsylvania, that definite sums, or sums capable of being made definite, chargeable on the demised premises by way of taxes, or for gas and water, or for improvements and betterments and such like, will be con- sidered as rent or included therein when the intention to so consider them is made clear in the contract between the lessor and lessee. Sums thus made part of the rent may be distrained for by the landlord and are en- titled to the preference given by the laws of Pennsylvania to rent for one year over liens by execution or otherwise. Morgans Estate, 30 Wkly. Notes- Cas. (Pa.) 509; Deticiler v. Cox, et al., 75 Pa. 200; Fernwood Masonic Hall Ass'n V. Jones, 102 Pa. 307; Erans v. Lincoln, 204 Pa. 448, 54 Atl. 321; Latimer v. Groetzinger et al, 139 Pa. 207, 21 Atl. 22. " In some of the cases it was held that the sums claimed as rent had not been clearly reserved as such by the contract between the parties, and SECT. Ill] MARSHALL V. MOSELEY 303 B. Apportionment, Suspension, and Extinguishment M.VK«11ALL ET XL. v. MOSELEY 21 N. Y. 280. 1860. CoMSTOCK, Ch. J.^ Mrs. Coe, by virtue of her husband's will had a life estate in the premises, out of which the rents in ques- tion accrued, and the plaintiffs owned' the remainder in fee. She died April 5, 1855, the leases being then unexpired.^ On the 1st of May following, the rents became due for the preceding quarter of a year. The defendant is the executor and residuary legatee of Mrs. Coe, and having collected the rents, for the whole quarter, the principal question in the case is, whether he is entitled to apportion them by dividing the quarter into two periods of time, one before and the other after her death, and by retaining in his own hands the portion which accrued before that event. As rent follows the reversionary estate, the law allows it to be apportioned where that estate becomes divided amongst different owners. This is according to the maxim, " accessorium sequitur natwram sui principalis." Thus if a reversion descend on the death of the ancestor who gave the lease, and the coparceners or heirs make a partition, the rent will be apportioned in favor of each of them. So if the reversion be severed by will or even by conveyance of the owner, the same result will take place. (2 Piatt on Leases, 131, 132, and cases cited.) But the same reasons never existed for apportioning rent on the principle of time where the tenant was bound to pay it at stated periods. The sum accruing between each of the times of payment was a single entire debt, and was due only on the condition precedent of the tenant being en- titled to enjoy the premises for the time in respect to which it was payable. If, therefore, a person having a life estate, with no power to make a lease to continue longer than during his life, should make a lease for years reserving rent half yearly, and should die in the middle of a half year, the rent, according to the principles the distinction is drawn between mere personal covenants on the part of the lessee to pay certain sums and a reservation of the same by the lessor as rent. In none of them, however, is it decided that the rent might not be reserved in such a manner as to include such smns as are above de.scribed." — Per Gray, J., in McCann v. Evans, 185 F. R. 93, 95. An agreement to pay taxes was held an agreement to pay rent in Neagle V. Kelly, 146 111. 460; Gedge v. Shoenherger, 83 Ky. 91; Roberts v. Sims, 64 Miss. 597; Knight v. Orchard, 92 Mo. App. 466. But not in Ffndgkins V. Prioe, 137 Mass. 13; People v. Swayze, 15 Abb. Pr. (N. Y.) 432. See Garner v. Hannah, 6 Ducr (N. Y.) 262. 266; L. R. A. 1915 A. 355 note. ^ Tho statement of facts, part of the opinion, and the dissenting opinion of Ci>E[{KE, J., are omitted. - These leases were created by the testator under whose will Mrs. Coe and the plaintifYs claimed. 304 MARSHALL V. MOSELEY [CHAP. VI of the common law, would be lost for the half of a year. The ex- ecutor or representative of the lessor could not recover it because by the nature of the contract the lessor was not entitled to it except in the sums and at the times specified in the lease. His successor in the reversionary estate could not claim it for the addi- tional reason that the reversion was not his until the lease itself was terminated by the death of the life tenant who gave it. If the lessee continues to hold afterwards, such holding is necessarily under some new contract with the party on whom the estate has devolved. (Woodf all's Land, and Ten., 248 ; 1 Salk., 65 ; 1 P. Wm., 392; 2 Id., 501, 502; 1 Man. & Gr., 589, 13 N. H., 343; 11 Mass., 493.) If, however, the lease continues, although intermediate the days of payment the reversion passes wholly into new hands, the obliga- tion of the lessee to pay rent continues also. Thus in the middle of a quarter the lessor may convey the whole estate which is under the lease, or it may be sold under execution or mortgage, or he may die leaving it to descend to his heirs, or he may dispose of it by will. The lease itself is unaffected by these events, and the rent is therefore payable as though they did not occur; but it is pay- able only in the sums and at times specified in the demise. The reversion may be transmitted to a new owner during a period be- tween the days of payment, but such an event does not divide the obligation of the tenant. The accruing rent follows the reversion wheresoever that goes, and neither the former owner nor his repre- sentative can recover any portion of it. Being recoverable only in a single sum and not until the prescribed day of payment, the common law gives it to him who is the reversioner at that time, and no case can be found where a court of equity has adopted a different rule. Says Mr. Woodf all (Law of Landlord and Tenant, 248), "at common law rent cannot be apportioned, but the reversioner becomes entitled to the accruing rent from the rent day antecedent to the decease of the tenant for life, whose representative was entitled to the arrearages due at some rent day before the de'ath of the testator, or the intestate; for the law does not apportion rent in point of time nor does equity." (See also 2 Greenleaf's Cruise, p. 116, §§ 44, 45, 46, Ex parte Smith, 1 Swanst., 337, and note, and other cases cited, supra.) It is true there are in the English books some cases of a peculiar kind, where on the death of a tenant for life before the day of paying rent for the current quarter or other period, the rent has been divided between his representative and the remainderman; but these are all cases in which the lease terminated on the decease of the life tenant; either because he had no power to lease so as to affect the remainderman, or because if such a power was given to him it had been defectively executed, and the lessee, holding the premises until the rent day, voluntarily paid the whole to the person who succeeded to the estate. In all SECT. Ill] MARSHALL V. MOSELEY 305 the cases of this kind the lessee was not at common law bound to pay at all for so much of the time since the last rent day, as had elapsed before the (h'ath of tlie tenant for life, but having con- scientiously paid for the whole time, the person who took the estate in remainder Avas held by the courts of equity to have received for the use of the executor, or his life tenant, so much of the rent as accrued beyond his decease. (Ex 'parte, Smyth, supra; Paget v. Gee, 1 Ambler, 199.) In these instances the rent actually paid was apportioned or divided on the principle of time; but cases of this kind have no tendency to show that such an apportionment can be made when the lease remains as before, notwithstanding a change of parties entitled to the rents takes place intermediate the rent days. The lessee in that case is bound to pay for the whole time, and the reversioner, or remainderman, takes the rent as an entire sum due to him by the term's of the contract. The well ascertained rules of the common law are, therefore, opposed to the claim of the defendant to retain any portion of the rents received by him for the quarter during which his testator, the life tenant, died. The leases were not determined by that event, and the plaintiffs, who as remaindermen succeeded to the reversion, were entitled to the whole of those rents. It has also been observed that the courts of equity have never departed from the rule of law on this subject. It seems hardly necessary to say now that there is no legislation of this State which the defendant can invoke in support of his claim. In England, one of the rules of law in regard to apportionment of rent was abrogated by an act of Parliament, passed in the reign of George II. That statute (2 Geo. II, c. 19), after notic- ing that by the existing rule rents were frequently lost, where a lessor having only a life estate died before or on the day when it would be payable, declared that when any tenant for life should happen so to die, his executor or administrator might recover the whole rent in arrear, in case such death took place on the day fixed for payment, or if it happened before that day, then a proportion, according to time, making all just allowances, S:c. That legislation, with some change in phraseology, has been followed in this State. ^ Our statute (1 R. L., 438; 1 R.' S., 747, § 22) provides that when a tenant for life, who shall have demised lands, shall die before the day when any rent is to become due, his executors may recover " the proportion of rent which accrued before his death." In the case provided for, therefore, rent can be apportioned in opposi- tion to the rule of the common law, and a recovery had, where, but for the statute, the rent would be lost. But the statute does not include the present case. The leases in question were not given by a tenant for life, but by the owner of the fee, and tlic 1 See New York. Civil Code of Procedure (1920). § 2674; Matter of Weeks, 5 Dem. (N. Y.) 194; Miller v. Crawjord, 26 Abb. N. C. (N. Y.) 376. 306 MARSHALL V. MOSELEY [CHAP. VI disputed rent was not liable to be lost, because the plaintiffs, suc- ceeding to the reversion, could recover the whole of it by action founded on the very leases themselves. The English statute, like ours, was enacted to remedy the apparent injustice of the rule which absolved a lessee from paying any rent, where his interest was de- termined between the rent days by the expiration of a life estate on which the lease depended. More recent legislation in England has gone still further. The statute of 4 W. IV, c. 22, after reciting that by law rents due at fixed periods were not apportionable, and after reciting the inconvenience of that rule, proceeds to declare that all rents made payable at such periods under any instrument executed after the passing of the act, should be apportioned so that on the termination, by death or any other means, of the estate of the person entitled to the rents, such person, or his representative, should have a portion of such rents, according to the time elapsed since the last period of payment. By a further provision, the entire rent is to be received and recovered from the tenant, by the person who would be entitled to recover it if the act had not been passed, and is to be held by him subject to apportionment, which can be enforced against him by suit at law, or in equity. It will be seen that this statute recognizes the old rule, while it declares a new one for future leases, and that it also carefully protects the tenant against more than one action for the entire rent. We have no such legislation in this State. If we should adopt the principle of that statute, in regard to apportionment, without legis- lative interference, we should not only change the existing law, but the change must be made without the protection to tenants which the English statutes secures. If we declare rent to be apportionable in cases like the present, it will follow, according to our rules of pleading and practice, that each party entitled to a share may sue the tenant to recover it. To illustrate, if the defendant has no interest in the rents now in question, then he cannot retain the portion in his hands. If he has an interest, then to that extent he could, under our practice, recover so much as belonged to him, by suit against the tenants, if they had not paid these rents. And I think that even a notice to the tenants of his claim to a share, would take away from them their right to pay the entire sum to the persons who, as remaindermen, would be entitled to the other share. To conclude on this point, Ave find that the rule of law denying apportionment in a case like this, has never been shaken; and whatever may be the arguments, founded in justice or expedi- ency, in favor of a different rnle, we think those arguments should be addressed to the legislature, rather than to the courts. We are, therefore, of opinion that the judgment must be affirmed. Denio, Selden, Weight and Welles, J*s., concurred.^ 1 Clerke, Davies, and Bacon, Js.. dissented. See BloodworUi v. Stevens, 51 Miss. 475; Allen v. Van Houton, 4 Harr. SECT. Ill] MORSE V. GODDARD 30'i MORSE V. GODDARD 13 Met. (Mass.) 177. 1847. This was an action of debt, brought to recover five dollars, the amount of one month's rent of a tenement. At the trial in the court of common pleas, before Washburn, J. on ajipeal from a justice of the peace, the plaintiff put into the case a lease, made by him to the defendant, dated January 6th, 1846, of a certain tenement, for one year, reserving rent in monthly payments, and stated that the action was brought for the rent of the month ending April 6th, 1846. The defendant admitted that he entered into the tenement, under the lease, and that he was still in possession. But he proposed to show, in defence, that in February 1846, W. M. Benedict and P. Merrick, being the owners of the tenement, entered into the same, and required the defendant to pay rent to them, and that he, in order to prevent being expelled therefrom, agreed to pay rent to them, after that time. The plaintiff objected to the com- petency of such evidence; but the court ruled that it was admissible. Thereupon the defendant introduced evidence tending to show that, on the 21st of February 1846, the attorney of said Benedict and Merrick (in company with two witnesses) met the plaintiff in the street, and informed him that he was going to take possession of that part of the house in which the defendant lived; that said attorney and two witnesses went to the house, and went into the part occupied by the defendant, and told him they had come to turn him out unless he would agree to attorn, and become the tenant of said Benedict and Merrick, and pay rent to them; that the de- fendant yielded, and agreed so to pay rent; that they went from the house, and found the plaintiff, and told him what had been done, and what the defendant had agreed to do. It did not appear that any evidence was shown to the defendant, at that time, of any title in Benedict and Merrick. In order to prove their title at the trial, the defendant introduced sundry deeds, and other evidence. [See Bnirdicf v. Mnrsp, 10 Met. 223.] The judge instructed the jury, that if the defendant hona fide yielded possession of the premises to Benedict and Merrick, to pre- vent being actually expelled, and the plaintiff then had notice of this; and if the defendant had satisfactorily proved that Benedict (N. J.) 47; Bank of Pfnmi/Jvnnio v. Wuc. 3 Watts (Pa.) 394; Cbm v. Fi.'^ Ann! ^(^. 1913. the lessor elected to terminate the lease and notified the plaintiffs to that effect. There was evidence to show that the leased premises were used 1 See Posit v. Brown, 142 Tenn. 304. The authorities are collected in 6 Harv. Law Rev. 12.'i-130: 2 Tiffanv. Real Prop.. 2d ed., pp. 1497-1499; 2 Williston. Contracts, §§ 944, 945. For statutes, see 1 Tiffany, Landl. and Ten., pp. 1211 et sea. On recovery of rent payable in advance for premises subspquentlv de- stroyed by accident, see Harvey v. Weisbanyn, 159 Cal. 265: Carlnn Elevator Co. V. Klahn, 43 S. D. 76; Porter v. Tull, 6 Wash. 408; 33 L. R. A. N. S. 540 note. SECT. Ill] WARE V. HOBBS 327 by the lessees as a summer hotel; that the hotel had no heating system therein, and that the buildings could not be used as a hotel during the winter months. The judge of the Superior Com't, Fox, J., before whom the case was tried, ordered a verdict for the defendant subject to the plaintiffs' exceptions, and reported the case with the stipulation that, if "upon the competent and admis- sible evidence, and upon the admitted facts . . . the plaintiffs had a right to go to the jury, then judgment is to be entered forthwith for the plaintiffs for six hundred dollars ($600) and interest from the date of the writ; otherwise judgment for the defendant is to be entered upon the verdict." At common law a lessee of premises which are accidentally de- stroyed after the making of the lease cannot be relieved against an express covenant to pay rent in the absence of a stipulation to that effect. Kramer v. Cook, 7 Gray, 550. In some States this rule has been modified by statute so that the tenant is relieved from the payment of rent or is allowed a reduction thereof when the premises are accidentally destroyed without his fault. ^ The lease in the case at bar contains the usual proviso that if the buildings on the prem- ises or any part thereof shall be damaged by fire or other unavoid- able casualty so as to be unfit for use and occupation, then " the rent hereinbefore reserved, or a just and proportional part thereof, according to the nature and extent of the injury sustained, shall be abated until the said premises shall have been duly repaired and restored by the lessor," or, in case the biuldings are destroyed, then at liis election the lessor may terminate the lease. The nuestion is : In what manner is " a just and proportional part " of the rent reserved to be abated in accordance with this pro- vision of the lease? The plaintiffs contend that the payment due December 1 and made on March 14 Avas so made before they had had any valuable use of the premises and was in effect a payment in advance of the summer season and before the hotel would yield any income to the lessees ; and that the words " a just and propor- tional part thereof" do not refer to the portion of the term which had exnired before the buildings were destroyed, but that in de- termininc: what is a just and proportional part of the rent to be abated the fnct that the lessees could receive no income or benefit from the hotel except during the summer months is to be considered, and for that reason the payment of the rent due in December is to be treated in substance as an advance payment. It is settled that under such a provision in a lease a just and proportional part of a payment made in advance may be recovered back in case of the destruction of the premises during the term. In Blcli v. Smith, 121 Mass. 82S. the tenant, for throe years in advance, had paid the rent for a building leased by him ; tlio lease contained a provision similar to that in the case at bar; the building was destroyed by 1 See note to preceding case. 328 WARE V. HOBBS [CHAP. VI fire before the term had expired; and the lessor elected not to re- build. It was held that the lessee was entitled to recover back a proportional part of the rent so paid in advance. We are of opinion that the words " just and proportional " refer to the period of occupancy and not to the value of the use to the tenant, and that the rent to be abated is to be ascertained according to the portion of the period of .possession which has expired; and the fact that the lessees could not have carried on the business of keeping a summer hotel when the December instalment of rent became due and was paid is an immaterial circumstance. The proper interpretation of the contract is that when the lessor exercises his election to terminate the lease, then there is- to be a just and pro- portional abatement of rent for the unexpired term because of the inability of the tenant longer to occupy the premises. See R. L. c. 129, §§ 8, 9; Weston v. Weston, 102 Mass. 514; Faxon v. Jo7ies, 176 Mass. 138. When the fire occurred on April 3, 1913, the first five months of the third year under the lease had expired, and when the instal- ment of rent of $600 due on December 1, 1912, was paid on March 14, 1913, the lessees had been in possession and occupancy of the premises under the third year of the lease from November 2, 1912, and continued in such possession until April 3, 1913, a period of five months, which, at a rental at the rate of $2,400 a year as provided by the terms of the lease, would equal $200 a -month and would amoimt to $1,000 for the time actually occupied by them during the last year of the term. In view of these facts it cannot be found that the rent paid on March 14, 1913, was paid in advance, but it is to be considered as having been paid under the terms of the lease on account of the occupancy of the premises from November 2, 1912, to the date of the fire. The rent under the lease was not made payable at regular intervals, but, with the exception of the December payment, be- came due on the first days of June, July and August. Still this circumstance cannot affect the interpretation which we have put upon the language of the lease. The dates fixed upon for the payment of the rent during the summer months apparently were for the con- venience of the lessees who would be expected to have an income from the hotel business during those months. In accordance with the terms of the report the entry must be Judgment for the defendant on the verdict} ^ See Cary v. Whiting, 118 Mass. 363; Richmond Ice Co. v. Crystal Ice Co., 103 Va. 465. SECT. Ill] CIBEL AND HILL's CASE 329 CIBEL AND HILL'S CASE 1 Leon. 110. 1588. A LEASE was made of a certain house and land rendering rent, and another sum, Nomine pamce; and for the Nomine poence the lessor brought an action of debt. The lessee pleaded, that the lessor had entered into parcel of the land demised, upon which they were at issue, and found for the plaintiff; and now the lessor brought debt for the rent reserved upon the same lease; to Avhich the de- fendant pleaded, ut supra, soil, an entry into parcel of the land de- mised : And issue was joined upon it ; And one of the jury was challenged, and withdrawn, because he was one of the former jury : And the issue now was, whether the said Cibel, the lessor, expulit et amovit et adhuc extra tenet, the said Hills. And to prove the same, it was given in evidence on the defendant's part, that upon the land demised there was a brick-kiln, and thereupon a little small cottage, and that the lessor entered, and went to the said cottage and took some of the bricks and untiled the said cottage : But of the other it was said, that the lessor had reserved to himself the bricks and tiles aforesaid which in truth were there ready made at the time of the lease made, and that he did not untile the brick-kiln liouse, but that it fell by tempest, and so -the plaintiff did nothing but came upon the land to carry away his own goods : And also he had used the said bricks and tiles upon the reparation of the house. And as to the extra tenet, which is parcel of the issue, the lessor did not continue upon the land, but went off it, and relinquished the possession : But as to this last point, it seemed to the court, that it is not material if the plaintiff continued his possession there or not, for if he once doth anything which amounts to an entry, al- though that he depart presently, yet the possession is in him suffi- cient to suspend the rent, and he shall be said, extra tenere the defendant the lessee, until he hath done an act which doth amount to a re-entry. And afterwards to prove a re-entry, it was given in evidence on the plaintiff's part, that the defendant put in his cattle in the field where the brick-kiln was, and that the cattle did estray into the place where the defendant had supposed that the plaintiff had entered. And by Anderson, Justice the same is not any re-entry to revive the rent, because they were not put into the same place by the lessee himself, but went there of their own accord. And such also was the opinion of Justice Periam.^ 1 The landlord is entitled to rent payable in advance even though he later evicts. Hunter v. Reilci/, 43 N. J. L. 480. See Gilcfi v Comstock, 4 N. Y. 270; auqd v. Imna^, 21 App. Div. (N. Y.) rm, afT'd. in 162 N, Y. 636. Contra. The Richmond v. Cake, 1 App. D. C. 447; .S/o.^^<; v. Brock wan, 171 111. App. 465; Noycs v. Anden^on. 1 Ducr. (N. Y .) 342. Compare Hall v. Middleby, 197 Mass. 485; St. Louts Co. v. Stanto7i, 172 Mo. App. 40. 330 HUNT V. COPE [chap. VI HUNT V. COPE Cowp. 242. 1775. Error from a judgment of the court of King's Bench, in Ireland, in an action of replevin, brought by the plaintiff, now defendant in error, for taking certain goods of the said Henry Cope, out of his dwelling-house, and detaining them, «fec. The defendant, the now plaintiff in error, avowed the taking for rent arrear due by the said Hunt to the said defendant, for certain premises in the avowry mentioned. The plaintiff pleaded 1st, That there was not any rent due to the defendant out of the premises, at the time of the taking, &c. upon which issue was joined. 2dly, That long before the taking of the goods, to wit on the 1st of April 1770, the defendant with force and arms unjustly and unlawfully entered upon the garden part of the messuage or tenement in the plaintiff's possession, and did then and there with like force and arms unjustly and unlawfully hreah and pull down the roof and ceiling of a summer-house, part of the said premises, and tore up the benches therein, by means whereof the plaintiff had been deprived of the use of the summer- house, from the said 1st of April, 1770, until the day of taking of the said goods, iu1ants, at an annual rent of $1500, payable quarterly; that at tlie making of the contract, 364 MCCLURG V. PRICE & SIMS [CHAP. VI he delivered to them possession of the tliree lower stories, and agreed to give them 'possession of the cellar and of the fourth and fifth stories, on demand; that he refused to deliver possession thereof, although repeatedly requested; and that the defendants were finally compelled, for want of room, to abandon the premises and to rent another house for the transaction of their business. Notwithstanding the plaintiff's deliberate and persistent refusal to perform his contract, he claims the right to recover compensation for the use and occupation of the portion of the demised premises actually enjoyed by the defendants, on the ground that they had the right to treat his goods as they would those of a stranger, and to remove them at his expense. But if the right be conceded, it does not follow that the defendants were bound to exercise it to the exclusion of all other remedies which the law gave them for the redress of the plaintiff's breach of his contract, or that their failure to exercise it will prevent them from setting up any defence to his claim for rent which they might otherwise make. But the defend- ants had no right to remove the plaintiff's goods. The law gave them no such remedy for his refusal to perform his contract. The evidence not only shows that his goods were in the portion of the demised premises which he withheld from the defendants, but that he was in the daily occupancy thereof for the purpose of selling his goods, and that he made sales from time to time, although part of the consideration of the stipulated rent was the good-will of his business. If the defendants '^ed ejected the plaintiff and turned his goods into the street, or removed them elsewhere, they would have been guilty of a trespass for which his breach of the contract would have afforded them no justification. Nor was their continuance " in the enjoyment of the larger and more valuable portion of the build- ing," after their demand for possession of the residue and its re- fusal by the plaintiff, a waiver of any of their rights under the con- tract, or of any defence they might have to the plaintiff's demand for rent, arising from his breach of the contract. The jury have found that when the defendants demanded pos- session of the residue of the demised premises, the plaintiff gave them no definite answer, but put them off from time to time, without any positive refusal, leaving them to infer that he would comply vnth their request. And if the jury had not so found, the plaintiff was bound to perform his contract, and is answerable for all the legal consequences of its breach, unless its performance was actually waived by the defendants. Their continuance in the possession of the three lower stories, after the plaintiff's refusal to deliver pos- session of the residue of the building, did not in itself amount to a waiver of their right to insist upon a strict performance of the contract. They had the undoubted right to retain possession of the three lower stories, and to hold the plaintiff responsible for his failure to deliver possession of the cellar and of the fourth and SECT. Ill] THRE'r V. BARTON 365 fifth stories, as required by his contract. The only question, then, under the facts of this case, is : Was the plaintiff entitled to recover any portion of the stipulated rent under the count for use and occu- pation? He leased his warehouse to the defendants for an entire consideration, and his contract must therefore be regarded as an en- tirety. If the consideration is single, the contract is entire, what- ever the number or variety of the items embraced in its subject". The principle is too well settled to admit of doubt, and too familiar to require the citation of authorities in its support, for that the part performance of an entire contract there can be no recovery, unless complete performance has been prevented or waived by the party entitled to demand it. If the plaintiff had performed his contract he might have re- covered on the count for use and occupation, under the statute of 11 Geo. II. ch. 19, which is in force in this state (Rob. Dig. 237), but having failed to perform it he was not entitled to recover, either upon a count on the contract of lease, or upon the statutory count for use and occupation The learned President Judge of the District Court was therefore clearly right in instructing the jury that, if they found the facts to be as stated in the charge, the plaintiff was not entitled to re- cover in this action for use and occupation for the time the de- fendants occupied a portion of the building, and their verdict must be for the defendants. Judgment affirmed.^ THRE'R V. BARTON Moore 94, pi. 232. 1570. A MAN made a lease for a hundred years, and the lessee made a lease for twenty years, rendering rent, with a clause of re-entry; and afterwards the first lessor granted the reversion in fee, and attorn- ment was had accordingly. The grantee purchases the reversion of the term; lie will have neither the rent nor the rc^-cntry, for the reversion of the term, to which it was incident, is extinct in the re- version in fee. And this was adjudged at the Assizes between Lord Thre'r and Barton who was lessee, as SfepJirns relates. And Plnir- dcn and others agreed to it; but Popham took this diversity: If a man makes a lease for life, rendering rent, and the lessee for life makes a lease for years rendering rent, and afterwards the lessee ■> Afoorc V. Mnnsfidd. 182 Ma.-^.-^. 302, accord. And see Rccd v. Rcimoldi^, 37 Conn. 469; Spcvcer v. Burton. .5 Blnckf. dnd.") .')7; Afoorr v. Giinrdian Trmt Co., 173 Mo. 218; Ethcridgc v. Ofihom. 12 Wend. (N. Y.) .529; Prtmy V. FrUnrr, 6 Okln. 386. Contra. Knox v. Jlcrtcr. 42 X. Y. Super. C\. 8. Com- pare, Lawrence v. French, 25 Wend. (N. Y.) 443. 447; Friend v. Oil Well Supply Co., 179 Pa. 290; Tunis v. Gandy, 22 Gratt. (Va.) 109. 366 BEAL V. BOSTON CAR SPRING CO. [CHAP. VI for life surrenders to him in the reversion in fee, he will not have the rent of the lessee for years, nor an action of waste, because the tenant for life who surrendered could not punish the waste in this case. So if the tenant purchases the reversion in fee, he will not have an action of waste during his own life. But otherwise is it if a man makes a lease for years rendering rent, and afterwards grants the reversion for life, or for years, and he in reversion surrenders to him, he will have the rent or waste, because it was once a rent incident to the reversion, and so it was not in the other. But Plow- den and Ipseley said that all is one as to the action of waste.^ BEAL V. BOSTON CAK SPRING CO. 125 Mass. 157. 1878. Contract for rent due under a written lease made by Heyer Brothers to the defendant for the term of five years from April 1, 1874, and by Heyer Brothers assigned to the plaintiff. At the trial in the Superior Court, before Allen, J., it appeared in evidence that the premises described in the lease of Heyer Brothers to the defendant constituted a part of the same premises which Heyer Brothers held under and by virtue of a lease to them for a term of ten years from April 1, 1874, made by the plaintiff, who was the owner of the premises; that on February 7, 1877, when the plaintiff received the assignment from Heyer Brothers of their lease to the defendant, he executed upon the back of the original lease from himself to Heyer Brothers the f ollomng instrument : "Boston, February 7, 1877. The within-named lessor, in considera- tion of the assignment to him of certain underleases made by the within-named lessees of parts of the premises demised in the within lease, and of one dollar to him paid by the within-named lessees, doth hereby release and forever discharge the said lessees, their heirs, executors, and administrators, of and from all claims, demands, and causes of action of and concerning the within lease, and especially all claims by him for rent thereunder; and said lessees do hereby surrender and yield up the said lease and the premises within described to said lessor, and such surrender is hereby accepted by him, but without prejudice to the leases of parts of the premises assigned to him as above mentioned." It further appeared that the terms of this instrument were carried out, and that Heyer Brothers ceased to occupy the premises. 1 See Bailey v. Richardson, 66 Cal. 416; Buftnn- v. Kasser, 19 Cal. App. 755: Krider v. Rammy, 79 N. C. 354, 358; Webb v. Rtu^srll, 3 T. R. 393; 13 Col. L. Rev. 245. Compare Grundin v. Carter, 99 Mass. 15; Pratt v. Richards Co., 69 Pa. 53; Hessel v. Johnson, 129 Pa. 173, 178-179; 7 L. R. A. N. s. 221 note. SECT. Ill] BEAL V. BOSTON CAR SPRING CO. 367 The defendant offered to show that it had not been in the occu- pation of the premises since February 7. This evidence was objected to as being immaterial and was excluded. The defendant contended and asked the judge to rule that if, by the arrangement entered into between the plaintiff and Heyer Brothers, the original lease was on February 7, 1877, given up, dis- charged or vacated, and the tenancy of Heyer Brothers thereupon ceased, and the plaintiff resumed control of the premises, and Heyer Brothers at the same time assigned and transferred to the plaintiff the underlease before then held by the defendant from them; and if the defendant, when informed of this, ceased to have anything further to do with the premises, and refused to recognize as longer subsisting or continuing in force the underlease given to them by Heyer Brothers, or to become liable to the plaintiff as assignee thereof in any way, the plaintiff could not maintain his action. The judge refused so to rule, but ruled that the plaintiff was entitled to recover; and directed the jury to return a verdict for the plaintiff. The defendant alleged exceptions. Endicott, J. The plaintiff, being the owner of the estate, leased the same for the term of ten years to Heyer Brothers; and they, on the same day, leased a part of the premises to the defendant for a term of five years. It is to be inferred from the subsequent agree- ment between the plaintiff and Heyer Brothers that other underleases were made. Before the expiration of the underlease to the defend- ant, Heyer Brothers assigned it to the plaintiff; who at the same time indorsed on the original lease to Heyer Brothers an agree- ment releasing them from rent and accepting the surrender of their lease and the premises, " but without prejudice to the leases of parts of the premises assigned to him." This agre(*nent was made in consideration of the assignment to the plaintiff of the under- leases by Heyer Brothers. The intention of the parties is plain. Heyer Brothers having made underleases of parts of the premises which the plaintiff was willing to take, and desiring also to surrender the reversion in these leases to the plaintiff, which he was willing to accept, the under- leases were assigned, including the defendant's, and the surrender of the original lease accepted without prejudice to the underleases. They evidently did not intend that the rights of the plaintiff under- the assignment, or the estates of the sub-lessees, should be destroyed by the surrender, for the language of the acceptance carefully pro- vides for both. The purpose was to put the plaintiff precisely in the position of Heyer Brothers. This intention, as expressed in the papers they have executed, will be carried out, if consistent with the rules of law, and we are of opinion that it is. The plaintiff brings this action, as assignee of the lease, to re- cover upon the defendant's covenant to pay rent; and it is well 368 SEAL V. BOSTON CAR SPRING CO. [CHAP. VI settled tluit when n lease is assigned without the reversion, the privity of contract is transferred, and the assifj;n(^e may sue in his own name for the rent accruing after the assignnicMit. Kendall, v. Carland, 5 Cush. 74; Hunt v. Thompson,, 2 Allen, 341. The only objection suggested to the plaintiff's right to recover is the surrender of the lease of Heyer Brothers to the plaintiff; and the claim is, that the rent due from the defendant is an incident of the reversion in Heyer Brothers, and, the reversion having been extinguished by the sur- render, all remedies incident to it are taken away. But rent is not necessarily an incident to the reversion, so that it cannot by the acts or agreements of the parties be separated from it. In a general grant of the reversion, the rent will pass as incident to it. Burden v. Thayer, 3 Met. 76. But the reversion may be granted and the rent reserved, or the rent may be assigned, reserving the reversion, if such is the intention of the parties as expressed in the vt^ords they use. Lord Coke says that fealty is an incident inseparably annexed to the reversion, and the donor or lessor cannot grant the reversion and save to himself the fealty ; but the rent he may except, because the rent, though it be an incident, yet is not inseparably incident. Co. Lit. 143 a, 151 b; 3 Cruise Dig. 337; Demarest v. Willard, 8 Cow. 206. Heyer Brothers therefore could have granted their reversion, or surrendered it to the plaintiff and reserved the rent accruing upon the underleases. In such a case, their relations to the sub-lessees vi^ould not be changed by the grant or surrender of the reversion, and they could have recovered rent of this defend- ant upon the covenants of its lease. Having that estate reserved in the premises, they could have assigned it to a third party or to the plaintiff, and the assignment would have been good, and the defend- ant Avould have been bound to pay to the assignee rent for the estate held under its lease. This form of proceeding was not adopted by the parties, but the same result was accomplished. As the assign- ments were simultaneous with the surrender, Heyer Brothers did not in terms reserve the rent to themselves, but the plaintiff accepted the surrender in consideration of the assignment, with the express stipulation that it should not prejudice the underleases assigned to him; that is, should not invalidate the assignment, or affect the rights of the parties holding the leases. The case is not presented, what would be the rights of Heyer Brothers against this, defendant ; or what would be the rights of the plaintiff, if he had not taken an assignment of the underleases, and had accepted a surrender without qualification. The two cases of Grundin v. Carter, 99 Mass. 15, and Wehh v. Russell, 3 T. K. 393, relied on in support of the proposition of the defendant, have no application to the facts here presented. Exceptions overruled} 1 Compare Appleton v. Ames, 150 Mass. 34; Williams v. Michigan Cen- tral R. Co., 133 Mich. 448; McDonald v. May, 96 Mo. App. 236; Hessel v. Johnson, 129 Pa. 173. SECT. Ill] m'mURPHY V. MINOT 369 M'MURPHY V. MINOT 4 N. H. 251. 1827. This was an action of covenant broken on an indenture made the 12th July, 1811, by which the plaintiff demised to Seth Daniels, a certain tract of land to hold during her natural life, and the said Daniels covenanted with the plaintiff to pay her, on the first day of May, annually, a rent of $30. The action was brought against the defendant, as assignee of Daniels, for the said rent from 1st May, 1817, to the 1st May, 1825, and was submitted to the decision of the court upon the following statement of facts. The indenture was made as stated in the declaration, and Daniels having entered under it, afterwards conveyed all his estate to one Oilman Dudley, who, on the 3d April, 1822, conveyed the land to the defendant in fee and in mortgage. Dudley remained in posses- sion and took the profits until his death in October, 1822, and after his decease his administratrix remained in possession, taking the profits until April, 1824, On the 16th April, 1824, a tenant entered upon part of the land under an agreement with the defendant to pay rent to him in ease the land was not redeemed. On the 23d April, 1825, the administratrix of Oilman Dudley conveyed to the defendant the right in equity to redeem the land mortgaged as aforesaid, and the defendant's said tenant has been in possession of the whole tract from that time to the commencement of this action, on the 22d March, 1826. All the interest which the plaintiff ever had in the land was an estate for her own life, and the reversion was in Daniels. Richardson, C. J. It has been urged in behalf of the defendant in this case that the plaintiff is not entitled to recover anything, be- cause the rent was never demanded of Minot. The law on this point is well settled. When a lessor proceeds for a forfeiture or to enforce a penalty he must show a demand of a rent on the very day it was payable. But in an action of covenant no demand is necessary. 18 Johns. 447, Remson v. Conklin; Com. Dig. Rent, D. 4; 2 N. H. Rep. ] 63, Coon v. Brickett. We are therefore of opinion that this objection to the action cannot prevail. It has also been urged that this action cannot be maintained, be- cause the particular estate and the reversion having become united in the same person, the particular estate is merged and the rent extinguished. Had the rent in this case been incident to the re- version, it is clear that this action could not be maintained. 2 IST. H. Rep. 454, York v. Jones. But it is well settled that the rent is not inseparably incident to a reversion. Co. Lit. 143 and 47 a; 2 Bl. Com. 176. 370 m'murphy v. minot [chap, vi Eent may be reserved upon a grant of a man's whole estate, in which case there can be no reversion. The case of Webb v. Russell, 7 D. & E. 393, which has been cited by the defendant's' counsel does [not] apply in this case. It was there held that where rent is incident to a particular reversion, when that particular reversion is merged, the rent is extinguished. But in this case the rent was never incident to the reversion. The plaintiff granted her whole estate reserving a rent, and she had no reversion to which it could be incident. In order to maintain this ground it must be shown that when he who has a reversion takes a lease of the particular estate and cove- nants to pay rent, such rent is extinguished by the union of the particular estate and the reversion. But this proposition cannot be sustained by any reason or authority, and we are of opinion that this ground of defence fails altogether. But it is further contended on the part of the defendant that being only a mortgagee he cannot in any event be held liable for the rent until he took possession under the mortgage, and the case of Eaton V. Jaques, Doug. 438, is cited as an authority. But that decision has been long questioned, 7 D. & E. 312, and in 1819 the question came before all the judges of England, and a great majority were of opinion that when a party takes an assignment of a lease by way of mortgage as a security for money lent, the whole interest passes to him and he becomes liable on the covenant for the payment of rent, though he has never occupied or become possessed in fact. 1 Brod. & Bing. 72, Williams v. Bosanquet et a. In this State it has been repeatedly decided that a mortgage in fee vests in the mortgagee the whole legal estate ; the necessary conse- quence of which seems to be that such a mortgagee miist be liable for the performance of covenants running wath the land. And we think in this case the defendant is liable for any rent that be- came due after his mortgage was executed. In considering this case, the question occurred to us whether the liability of the defendant could be affected by the circumstance that the rent was reserved upon a grant of the freehold, while the conveyance to him was in fee. But we find that it has been decided that covenant will lie against the assignee of part of an estate for not repairing his part, for it is devisable [divisible], and follows the land. Cro. Car. 222, Congham v. King; 2 East, 580. And we are not able to discover any reason why he who takes a larger estate should not be bound by a covenant running with a less estate which is parcel of the larger. On behalf of the plaintiff it has been argued that the defendant is liable in this action, not only for the rent which has become due since he became owner of the land, but the rent which became due before that time. The cases which have been cited by the defendant's counsel seem to show that the law is not so. SECT. Ill] HUGHES V. ROBOTHAM 371 It is another argument in favor of tlie defendant, that when the action is against an assignee, it is usual to allege in assigning the breach of the covenant, that the breach happened after the assign- ment. 2 Chitty's PI. 191; Lilly, 134; 6 Johns. 105, Dubois v. Van Ordenj Carthew, 177; 2 Ventris, 231. It is said in Woodfall, 274 and 338, that an assignee is liable for arrearages of rent incurred before, as well as during his enjoyment; but he cites no case in which it has been so decided, and offers no argument in support of the propositions, and we are of opinion that this is not law, and there must be judgment for the plaintiff for the rent which has become due since the 3d of April, 1822, Judgment for the plaintiff. HUGHES V. ROBOTHAM, EXECUTOR Cro. Eliz. 302. 1593. Assumpsit. That whereas the 14th April, &c. the plaintiff was possessed of a lease for years, and the testator was possessed of the 'reversion for years, the testator, in consideration the plaintiff would surrender to him all his estate, promised to give him thirty pounds; and alledges in facto, that 20th April, &c. he surrenders, kc. Upon non assumpsit it was found for the plaintiff. Foster moved in arrest of judgment, Eirst, It was not alledged that he was possessed of the entire term at the time of the surrender; and it may be he had assigned part of it before to another. Secondly, Both parties are termors; one in possession, and the other in reversion : and a termor cannot surrender to a termor, for one estate cannot drown in the other. As to the first, all the CorRx held clearly that the declaration is good; for it shall not be otherwise intended, but that the estate did continue; and it being but an inducement, it need not be so pre- cisely alledged. To the second, Popham said, it is clear that he who hath an estate for ten years, may surrender to him that hath an estate for twelve years; and the estate is drowned, and the other shall come in possession; and there is no doubt but a surrender to him that hath a greater estate for years is good, as to him that hath an estate for life, which Gawdy did expressly affirm; and here it standeth in- different, if the reversioner had a greater estate for years or not: but if one be lessee for twenty years, and he let the land for ten y(>ars, and he surrenders to him that hath the residue of the term, this is good to convey his interest, but not to drown the estate, but he shall have the twenty years as before: otherwise it is of a surrender to another man that hath the reversion for years. And PoPHAM conceived, that if the testator had the reversion for 372 WHITLEY V. GOUGH LCHAP. VI a less number of years, yet the surrender is good, and the estate shall drowu in it. And if a man be lessee for twenty years, and the reversion is granted for one year to another, who grants it to the lessee for twenty years, this is a surrender of the first lease for twenty years, and is as if he had taken a new lease for a year of his lessor. Quod Fenner, Justice, affirmed; and said the surrender was good, although the reversion was for a less term for years; for here are several terms out of the reversion, and one cannot stand with the other; but coming together, one shall drown the other: and the number of years is not material; for as he may surrender to him who hath the reversion in fee, so he may to him that hath the re- version for a lesser term : but when lessee for twenty years, maketh a lease for ten years, who surrenders; this cannot drown in the other, because it was not to commence until the term expired. — And it was adjudged accordingly for the plaintiff.^ SECTION IV TERMINATION OF THE RELATION WHITLEY V. GOUGH Dyer 140 b. 1557. In trespass between Whitley, widow, and Gough, there was a de- murrer in law upon the evidence, where the husband of the plaintiff made a lease by indenture to the defendant for a term of ninety years, and afterwards enfeoffed certain persons, and took back an estate to himself and his said wife in tail ; and afterwards the termor took a new lease of the husband for eighteen years only, to commence immediately, by parol; and afterwards the husband died, and his wife ousted the termor. x\nd by the opinion of the judges she may well do this, for the first lease was surrendered and merged in law by the acceptance of the second, Szc. See E. 3 Eliz. fol. 200, pi. 62." 1 See Pory v. Allen, 1 Leon. 303; Willcs v. Whitcwood, 1 Leon. 322; Dighton v. Greenvil, 2 Vent. 321; Stephens v. Bridges, 6 Mad. 66; 3 Preston, Convevancing, 177-219. ^ Otis V. McMillan, 70 Ala. 46; Edwards v. Hale, 37 W. Va. 193. Com- pare Evans v. McKanna, 89 Iowa 362; Oldewurtel v. Wiesenfeld, 97 Md. 165; Bowman v. Wright, 65 Neb. 661; Donellan v. Read, 3 B. & Ad. 899. If a lease is void, its acceptance is not a syrrender of a former lease. Watt V. Maydewell, Hutt. 104; Davison v. Stanley, 4 Burr. 2210; Doe d. Egremont v. Courtenay, 11 Q. B 702; Doe d. Biddulph v. Poole, 11 Q. B. 713; Zick v. Tramways, [1908] 2 K. B. 126. If Melloios v. May, 2 Cro. Eliz. 874, is correctly reported, it mu.st be considered as oveiTuled. Compare Chamberlain v. Dunlop, 126 N. Y. 45. "All the old cases will be found to depend on the principle to which we have adverted, namely, an act done by or to the owner of a particular estate, the validity of which he is estopped from disputing, and which could SECT. IV] HAMERTON V. STEAD 373 HAMERTON v. STEAD 3 B. & C. 478. 1824. Trespass for breaking and entering a mill, dwelling-house, and close of plaintiff, ejecting him therefrom, and keeping him out of possession for a long space of time. Plea, Uberum ienementuin. Replication, that before the said time when, &c., to wit, on, &c., defendant demised the premises to plaintiff, as tenant from year to year, by virtue of which demise plaintiff entered, and was possessed of the premises, and continued so possessed until and at the said time when, &c. Rejoinder, that after the making of the said demise in the replication mentioned, and before the said time when, (Src, the said tenancy, and the estate and interest of the plaintiff in the demised premises, in which, &c., wholly ended and determined. Surrejoinder, that the tenancy, (Src, did not end and determine in manner and form alleged in the rejoinder. At the trial, before Garrow, B., at the last S])ring Assizes for Salop, it appeared that on the 1st of May 1810, the premises in question were demised by the defendant to the plaintiff, as tenant from year to year, and he continued so to hold them until the 25th of September 1815, when notice was given to him to quit on the 1st of May then next. On the 10th of October 1815, by an agreement in writing, made between the defendant of the one part, and the plaintiff and one Moore of the other part, defendant agreed to let and demise unto plaintiff and Moore the premises in question, to hold them unto plaintiff and Moore from the 1st of November then next, for seven years thence next ensuing, at a yearly rent of £159, payable half yearly on the 1st of May and 1st of November. Plaintiff and Moore thereby agreed to pay the rent and all taxes, except the landlord's property tax; and defendant agreed to put all the premises in ten- antable repair as soon as conveniency would permit. And the plain- not have been done if the particular estate continued to exist. The law there says that the act itself amounts to a surrender. In such case it will be observed there can be no question of intention. The surrender is not the re.sult of intention. It takes place independently, and even in spite of intention." Per Parkej, R., in Lyon v. Reed, 13 M. & W. 285, 306. See Brown v. Cairns, 107 Iowa 727, 737; Brotvn v. Linn Woolen Co., 114 Me. 266; Flagq v. Dow, 99 Mass. 18, 21; Thomas v. Zumbalen, 43 Mo. 471. 477; Enyrart v. Davii^, 17 Neb. 228, 236: O'Neil v. Peari (liat the effect of the agr(>enieiit in December was that tlie defenthint accepted a new tenancy for six 378 FENNER V. BLAKE [CHAP. VI months terminable in June in lieu of the existing tenancy. And if so, then all the authorities agree that the acceptance of a new ten- ancy works a surrender of the old tenancy by operation of law. On that ground I am of opinion that the plaintiff was entitled to main- tain his action. But there is also another ground which I think is equally applic- able, and which I think is not displaced by Lyon v. Reed, 13 M, & W. 285, one of the cases on which Mr. Chitty relied. It seems to me that in this case the facts raise an ordinary case of estoppel. The defendant, having agreed to give up possession of the premises in June, assented to the landlord selling the premises with a right of the purchaser to possession in June. The landlord accordingly sold to a purchaser with a right to possession at that date, and thereby rendered himself liable to an action at the suit of the pur- chaser if he was unable to give him possession at that date. Under those circumstances it seems clear that the tenant is estopped from saying that his tenancy, whatever it was in fact, was not a tenancy ending in June. It is an invariable practice, when a reversion is put up to auction, for the vendor to state what the terms of the tenancy are and when it expires; and if the tenant is communicated with before the sale and agrees that his tenancy is of such and such a character, and thereupon it is so described, and the sale takes place upon that footing, it is impossible to say that the tenant is not estopped from saying that the tenancy is other than that upon the footing of which he allowed the property to be sold to the pur- chaser. On this ground of estoppel also I think that the judgment of the county court judge may be supported. BucKNiLL, J. I am of the same opinion. The effect of the evi- dence stated in the judge's notes seems to be this — that the de- fendant asked to be released from his tenancy, and the landlord consented, and they then and there agreed that there should be a new tenancy for six months terminating in June. If that is the effect of it, then the acceptance of the new tenancy amounted to a surrender by operation of law. I also entirely agree with what my brother Channell has said upon the point as to estoppel. Upon both those grounds I think the judgment of the county court judge was right. The appeal must, therefore, be dismissed. Appeal dismissed. Leave to appeal refused.^ 1 See Warren v. Lyons, 152 Mass. 310; Mundy v. Warner, 61 N. J. L. 395; Allen v. Jaqiiish, 21 Wend. (N. Y.) 628. SECT. IV] NICKELLS V. ATHERSTONE 379 NICKELLS V. ATHERSTONE 10 Q. B. 944. 1847. Debt on a demise of rooms &c., by plaintiff to defendant for three years from March 1st, 1844, at the yearly rent of £100, payable quarterly in advance; averment, that defendant entered, and was possessed until 1st September, 1845. Pleas. 1. Traversing the demise. 2. Eviction by plaintiff. 3. Surrender. Traverses of pleas two and three. On the trial, before WigJittnan, J., at the London sittings after Easter Term, 1846, the following appeared to be the material facts. The rooms were let by plaintiff to defendant under a memorandum of agreement dated 26th February, 1844, on the terms specified in the declaration. The defendant entered, and paid rent for the first two quarters, beginning respectively March 1st and June 1st, 1844. In August, 1844, the defendant removed his property from the rooms and left them, and applied to the plaintiff to take them off his hands. The plaintiff refused. The defendant then asked the plaintiff to let the rooms for him; and the plaintiff said he would try to do so. On 3d September, 1844, the defendant being then absent, the plaintiff applied to his daughter for the rent due on 1st September. In reply, the following letter was written by the defend- ant to the plaintiff. Edinbt^rgh, 11th September, 1844. Sir, — I heard from my daughter that you expressed your inten- tion to take legal measures against me unless the ensuing quarter rent were paid on the very day commencing the quarter. I consider such a step would be harsh; and under present circumstances it would be utterly useless. It will probably be six months before I can finally leave Scotland, as the greater part of my business con- nexion lies in this country. I trust, however, that you may be able to let the rooms to some other person, and on better terms. E. Atheestone. On 29th September, 1844, the plaintiff, without any further com- munication with the defendant, let the room in question, together with some others, to a Mr. Bullock, for three years from that date, at £120 a year, payable quarterly in advance. Mr. Bullock paid the first two quarters, but subsequently became insolvent. The present action was then brought, claiming from the defendant the four quarters' rent from September 1st, 1844, to September 1st, 1845, under the agreement of February, 1844; but credit was given to the defendant for the first two quarters' rent, which the plaintiff had received from Bullock. 380 NICKELLS V. ATHERSTONE [CHAP. VI Wightman J., left it to the jury to say whether the plaintiff agreed to the terms offered by the defendant in his letter of 11th September, and accepted Bullock as his tenant in substitution and discharge of the defendant. The jury found that the plaintiff did accept Bullock as his tenant in discharge of the defendant. Verdict for the plaintiff, under the direction of the learned judge, on the first issue, for the defendant on the other issues, with leave to the plaintiff to move to enter a verdict for himself for £50, on either or both the other issues. A rule nisi having been accordingly obtained,^ Lord Denman, C. J., now delivered judgment. In this case, the defendant being the lessee in possession of the premises, the plaintiff, his landlord, with his consent, let them to a new tenant, and put him in possession, and discharged the defendant from his liability as tenant. The judge who tried the case held that these facts constituted a surrender by operation of law, and, therefore, a defence against the plaintiff's claim for rent. The correctness of that holding has been brought into question before us in consequence of the opinion expressed by the Court of Exchequer in Lyon v. Reed, 13 M. & W. 285, 305-310; but we are of opinion that it is correct. If the ex- pression " surrender by operation of law " be properly " applied to cases where the owner of a particular estate has been party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued," it appears to us to be properly applied to the pres- ent. As far as the plaintiff, the landlord, is concerned, he has created an estate in the new tenant which he is estopped from dis- puting with him, and which is inconsistent with the continuance of the defendant's term. As far as the new tenant is concerned, the same is true. As far as the defendant, the owner of the particular estate in question, is concerned, he has been an active party in this transaction, not merely by consenting to the creation of the new relation between the landlord and the new tenant, but by giving up possession, and so enabling the new tenant to enter. If the defendant cannot technically be said to be estopped from dis- puting the validity of the estate of the new tenant, still, according to the doctrine of Pichard v. Sears, 6 A. & E. 469, he would be pre- cluded from denying it with effect; and the result is nearly the same as an estoppel. If an act which anciently really was, in contemplation of law, and has always continued to be, an act of " notoriety, not less formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate, and the like " (Lyon V. Reed, 13 M. & W. 309), be required as requisite for a surrender by operation of law, and if the acts of the three parties are re- 1 Argued before Lord Denman, C. J., Patteson, Wightman, and Erle, JJ. SECT. IV J NICKELLS V. ATHERSTONE 381 garded together, this requisite is here found. Indeed the notoriety is essentially greater than that which accompanies a parol re- demise between the same landlord and tenant, which is a clear sur- render by operation of law. In the present case three are con- cerned, and there is an actual change of possession; in the other, two are concerned, and there is no change of possession. This sur- render by operation of law has been judicially recognized in each of the superior courts: Matthews v. Sawell, 8 Taunt. 270; Thomas V. Cooh, 2 B. & Aid. 119; Walker v. Richardson, 2 M. & W. 882; Bees V. Williams, 2 C. M. k R. 581, s. c. Tyr. & G. 23; and held valid at Nisi Prius in Stone v. Whiting, 2 Stark. N. P. C. 235, and many subsequent cases. When the decisions on a point are numer- ous and uniform, and carry into effect the lawful intentions of the parties according to the truth, and are opposed by no principle, the law on the point ought not to be considered doubtful because the reported decisions are only of modern date, as the fact that the reports on the point do not begin till lately may arise from there being no question on the point in earlier times. Indeed, in 1809, it seems probable that a restoration of the possession to the land- lord and a discharge of the tenant by him was considered a sur- render by operation of law. The defence in Mollett v. Brayne, 2 Campb. 103, was shaped on that principle; but, as the evidence failed to show a change of possession by mutual consent of landlord and tenant, the defence failed. In Whitehead v. Clijford, 5 Taunt. 518, where there was such change of possession by mutual consent, the defence to a claim for use and occupation succeeded ; and the court distinguished the case fi-om Mollett v. Brayne, for that reason. Where there is an agreement to surrender a particular estate, and the possession is changed accordingly, it is more probable that the legislature intended to give effect to an agreement so proved, as a surrender by operation of law, than to allow either party to defeat the agreement by alleging the absence of written evidence. Al- though we do not assent to the observations upon the line of cases, from Thom])Hr('nt ; and the facts stated lead to the conclusion that Ord and Planta did not know of the demise to Osborn and Burt ; but the probability is, that the term 382 NICKELLS V. ATHERSTONE [CHAP. VI in them as trustees had been forgotten at the time when their con- currence was requisite for the new lease. As the defendant is entitled to our judgment on this point, it is not necessary to consider the effect of his letter as evidence of a surrender. Bule discharged.^ 1 Tricst & Co. V. Goldstone, 173 Cal. 240, accord. See Kinsey v. Minnick, 43 Md. 112; Davison v. Gent, 1 H. & N. 744. In Wallis v. Hands, L. R. [1893] 2 Ch. 75, N. had in 1884 leased certain land to P. and others. In 1887 N. leased the same and other lands to plain- tiff. This was done with the oral assent of the lessees under the lease of 1884. The plaintiff did not enter into possession of the premises covered by the lease of 1884. Chitty, J., said, page 81:— "The plaintiff (as already stated) has never been in possession of the property demised by the lease of 1887; consequently, as between the lessees of 1884 and those claiming under them on the one hand, and the plaintiff on the other, there has been no change of possession. In these circumstances it is contended for the plain- tiff, as a proposition of law, that the grant of a new lease in possession, with the oral assent merely of a person in possession under a prior subsisting lease, operates as a surrender in law of the prior lease; and, consequently, that such grant and mere oral assent are sufficient to take the case out of the operation of the 3rd section of the Statute of Frauds, which enacts that no leases shall be surrendered unless by deed or note in writing, or by act and operation of law. . . . The question again raises the controversy which sub- sisted at one time between the Courts of King's Bench and the Exchequer, illustrated by Thomas v. Cook, 2 B. & Al. 119, and Lijon v. Reed, 13 M. & W. 285, and discussed at length in Smith's Leading Cases, 8th ed. vol. ii. p. 884 et seq. But it appears to me that this controversy was, so far as con- cerns the question before me, set at rest by the judgment of the Court of Exchequer in Davison v. Gent, 1 H. & N. 744. In Thomas v. Cook there was in fact a change of possession, the old tenant Cook having gone out of pos- session when the plaintiff accepted Perkes as his tenant. (See the observ^a- tions of Lord St. Leonards in Creagh v. Blood, 3 J. & Lat. 160). In his judgment in Davison v. Gent Chief Baron Pollock states the law thus, (1 H. & N. 749) : ' It must therefore be taken to be established that where a lessee assents to a lease being granted to another, and gives up his own possession to the new lessee, that is a surrender by operation of law.' This statement appears to me not to be qualified by any subsequent expressions in the same judgment. It substantially reconciles Thomas v. Cook, 2 B. & Al. 119, with the principles enunciated by Baron Parke in Lyon v. Reed, 13 M. & W. 285, so far as relates to leases in possession. It is not. perhaps, .of any great practical importance in which of the two following ways the proposition of law is stated: (1) there is no surrender by operation of law unless the old tenant gives up possession to the new tenant at or about the time of the grant of the new lease to which he assents; or (2) the change of possession is a necessary part of the consent. I prefer, however, the first, as being the more correct form. To hold that mere oral assent to the new lease operates as a surrender in law would be a most dangerous doctrine: it would practically amount to a repeal of the Statute of Frauds, and let in all the mischief against which the statute intended to guard; the policy of that statute is carried still fin-ther by the statute 8 & 9 Vict. c. 106, s. 3, which requires a deed in cases where formerlv a mere writing would have sufficed. The foundation of the doctrine that the acceptance of a new lease by an existing tenant operates as a surrender in law is estoppel by act in pais, the law attributing the force of estoppel to certain acts of notoriety, such as livery of seisin, entry, acceptance of an estate, and the SECT. IV] SCHIEFFELIN V. CARPENTER 383 SCHIEFFELIN v. CARPENTER AND OTHERS 15 Wend. (N. Y.) 400. 1836. This was an action of covenant, tried at the New York Circuit in April, 1834, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiff declared on a lease under seal, made by him to Edmund T. Carpenter, bearing date 1st April, 1829, demising a dwelling-house and a lot of ground of oVii acres, situate in the twelfth ward of the city of New York, for the term of six years, subject to an annual rent of $325, to be paid quarterly. The lease was a tri- partite indenture, Daniel S. Hawkhurst and Daniel Carpenter being parties thereto, and uniting with the tenant in the covenants to be performed on his part; and they were joined as defendants in the suit with the tenant. The defendants, amongst other things, cove- nanted for the payment of the rent; that the tenant should, during the term, keep the dwelling-houses, fences and every part of the de- mised premises in good condition and repair, and, at the expiration of the term, yield them up in like good repair; that he would not remove, injure or destroy any root, plant, bush or tree growing on the premises, or suffer the same to be done; that he would not underlet or assign the premises, either directly or by operation of law, with- out the written consent of the landlord; and that during the term, the dwelling-house should not be occupied as a public house, inn or tavern, without the like written consent. The plaintiff assigned, as breaches of the covenants: 1. That on the 1st July, 1833, there was one year's rent in arrear and unpaid ; 2. That on the 1st Jan- uary, 1831, the tenant permitted the dwelling-house and fences, &c., to fall into bad condition, and to become ruinous and to decay for the want of necessary repairs, and so permitted them to remain until the commencement of the suit; 3. That on the 1st January, 1831, he suffered fruit trees, gooseberry bushes, asparagus roots, and orna- mental flowering plants growing on the premises to be lopped, up- rooted, removed and destroyed by persons and animals; 4. That from 1st November, 1832, until 1st June, 1833, the dwelling-house was used and occupied as a puhlic house, without the consent of the plaintiff. The defendants pleaded the general issue, and gave notice of various matters to be proved on the trial. On the trial of the cause, the plaintiff claimed to recover the rent of a quarter of a year, ending 1st July, 1833, and damages for breaches of the covenants to keep the premises in repair, and not to injure them, &c. The plaintiff proved that the premises were in like; and the grant of a new lefase to a stranger, with the tenant'.^ assent, and change of possession preceding or following the lease, bring such a ca.se within the scope of the same doctrine, which mere oral assent would not ilo. 384 SCHIEFFELIN V. CARPENTER [CHAP. VI good repair at the date of the lease, and when the tenant went in possession; and that in February, 1833, the dwelling-house was in a ruinous state, the fences prostrated, and the garden wholly destroyed, and that the expense of putting the premises in repair would be between $400 and $500. He also proved that the premises had been occupied for a year by two men of the name of Wood and Mat- thews, who were railroad contractors, and had many persons in their employ who resided on the premises. The defendant offered to prove that the plaintiff held the demised premises only in right of his vufe, and insisted that inasmuch as an action of waste might be brought in the name of the husband and wife in the character of reversioners, the claim of damages for injury to the demised prem- ises ought not to be sustained in the present suit : the evidence was rejected by the judge. The defendants also offered to prove that in the autumn of 1831, an agreement was entered into between the plaintiff, the defendant Edmund T. Carpenter and two persons of the names of Mills and Owen, that Carpenter should quit and sur- render up the premises to the plaintiff, that the lease declared on should be delivered up and cancelled, and a new lease of the prem- ises should be executed by the plaintiff to Mills and Owens for the term of eight or ten years. That in pursuance of such agreement, Carpenter, in the autumn of 1831, surrendered up the premises to the plaintiff, and paid all the rent then due to the plaintiff, and Mills and Owen took possession of the premises and occupied the same pursuant to such agreement as tenants to the plaintiff, who accepted them as such, and received rent from them. That Mills and Owen occupied the premises until the autumn of 1832, when they left, and were succeeded in the possession by Wood and Mat- thews, to whom also the premises were let by the plaintiff, and from whom he also received rent : these facts the defendants offered to establish by parol proof. The counsel for the plaintiff objected that parol evidence of the alledged agreement or surrender of the lease was inadmissible; and also that the evidence, if intended to be urged in discharge of the covenants, ought not to be received, for the reason that a covenant cannot be discharged by parol before breach. The judge sustained the objection. The defendants then proved that Mills and Owen went into possession of the premises on the 1st November, 1831, and that previous to their entry, Edmund T. Carpenter (the tenant) put the premises in as good repair as they were in when he entered; they were thus repaired, because Mills and Owen were to take possession. The plaintiff, on being spoken to on the subject, said that he was satisfied with the repairs, if Mills and Owen were satisfied. It was also proved, that after Mills and Owen quit the premises, they w-ere occupied by Wood and Matthews, who had a large number of men in their employment as laborers on a railroad and housed on the premises. Wood and Matthews were in possession six months, and paid rent to the .plaintiff. SECT. IV] SCHIEFFELIN V. CARPENTER 385 The counsel for the defendants insisted that the plaintiff was not entitled to recover in this action more than nominal damages for the breach of the covenant to keep the premises in repair^ and for the injuries done to the premises, as the tenant might put the premises in complete repair before the end of the term, and if he did so the plaintiff would have no cause of complaint ; if he did not do so, then the plaintiff" would be entitled to bring his action, and to recover damages, and requested the judge so to charge the jury. The judge declined to do so, and, on the contrary, charged the jury that the plai^itiff was entitled to his verdict for one quarter's rent, (which was admitted to be all that was due at the bringing of the suit;) and, further, that they were not bound to limit their verdict on the cove- nant of repairs to nominal damages, but might give such sums as, under all the circumstances, they should consider the plaintiff en- titled to recover, provided they were satisfied that the defendants had violated their covenants. The jury found a verdict for the plaintiff with $481.25 damages. The defendants ask for a new trial. The cause was submitted on written arguments. By the Court. (Nelson, J.) This case has already been elabo- rately argued upon paper by the respective counsel, and all the authorities and principles bearing upon the points disputed, have been referred to and examined; and were it not for some recent cases in the English courts, that are very confidently urged by the defendant's counsel, it seems to me there would be but little difficulty in disposing of the case. A surrender is defined to be a yielding up of an estate for life or years to him who hath the immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement. Comyn's Landlord and Tenant, 337; 2 Co. Lit. 551 ; 4 Cruise, 155; 4 Bacon's Abr. 209 ; Shep. Touch. 300, 307. Before the Statute of Frauds and Perjuries, any form of words without writing, whereby an intention appeared to surrender up the possession of the premises to the lessor or reversioner, was sufficient for that purpose. This was called a surrender in fact. There was also a surrender in lau\ It Avas effected by the acceptance of a new lease of the premises from the lessor, for the whole or a part of the time embraced in the former one, because it necessarily im- plied a determination and surrender of that lease; otherwise the lessor would be unable to make the second, or the lessee to enjoy it, and it was therefore but reasonable to presume both parties in- tended to waive and relinquish the benefit of the first one. The second lease, before the Statute referred to, of course need not have been in writing to operate an effectual surrender of the first one. The Statute of 20 Car. enacted " that all leases, estates, interests of freehold or terms of years, or any uncertain interests of, in, to or out of any lands, (Src, made or created by livery and sei/in only, or by parol, and not put in writing, tSrc, shall have the force and effect of leases or estates at will only," &c., excepting leases not 386 SCHIEFFELIN V. CARPENTER [CHAP. VI exceeding the term of three years from the making thereof. And also, " no leases, estates or interest either of freehold or term of years, or any uncertain interest, &c., of, in, to or out of any mes- suages, &c., shall he assigned, granted or surrendered, unless by deed or note, in writing, or operation of law." Our Statute (2 R. S. 134, § 6) provides that " no estate or interest in lands, other than leases for a term not exceeding one year, &c., shall hereafter he created, granted, assigned, surrendered, &c., unless hy act or opera- tion of law, or by deed or conveyance in writing," &c., § 8. " Every contract for the leasing for a longer period than one year, &c., shall be void," unless in writing. Since these Statutes, a parol lease in England for more than three years, and in this State for more than one, is entirely void; though if the tenant enters into possession, he shall be deemed a tenant at will, and for the purpose of notice to quit, from year to year, and notwithstanding the lease be void, it may regulate the terms of holding as to rent, time to quit, &c. 5 T. R. 471; Comyn's L. & T. 8; Woodf. 14, 15; 4 Cow. 350; 7 Id. 751. But as a lease for the purposes for which it was given, it is considered wholly void. It is, however, conclusively settled by authority, that the second lease must be a valid one, so as to convey, the interest it professes to convey, to the lessee, and also to bind him to the performance of the covenant or agreement in favor of the lessor, in order to operate as an effectual surrender of the first one. 3 Burr. 1807; 4 Id. 1980, 2210; 6 East, 86; Comyn's Dig. tit. Estate, G. 13; 4 Bac. Abr. 215. Without this, the reason before given for the implied surrender would fail, and the intent of the parties be altogether defeated. Instead of being but a surrender of the first lease, it would be a surrender of the whole estate and interest in the premises, and a virtual determination of the existence of any tenancy. ISTow the ground upon which the surrender in this case is mainly argued is, not that a new lease was given to the original lessee, but that it was given to Mills and Owen with his consent, for the period of eight or ten years. Assuming this, amounts to the same as if given to Carpenter; it is impossible to maintain that any valid lease has been proved in the case, or any lease whatever for a definite period. The most that was offered to be proved was, that Mills and Owen went into possession with the consent of the defend- ants, under a parol agreement for a lease for eight or ten years; and if it be viewed as an agreement for a lease, or as a virtual lease for that time, it is void under the Statute, and could not be enforced by either of the parties. An implied tenancy at will only was created, which enabled Mills and Owen to hold from year to year, for the purpose of notice to quit, but which they could terminate at any moment they pleased. The agreement and entry in pursuance of it conferred no rights upon the plaintiff, further than to recover his rent while they continued to occupy, and perhaps a quarter's rent, if they abandoned the ocupation after the commencement of a quarter and before its termination. SECT. IV] SCHIEFFELIN V. CARPENTER 387 Suppose this agreement had been made with the original tenant, and the defendants can claim no more from it as offered to be proved, could it be contended that it operated as a virtual surrender of the lease for six years, and that the plaintiff could dispossess the tenant on giving six months' notice to quit ? This would be the consequence of the doctrine urged in the defence. The tenant would become a mere tenant at will. The authorities already referred to clearly establish that the second lease, to have the effect claimed, must pass the interest in the premises according to the contract, or in other words, carry i^nto legal effect the intent of the parties exe- cuting it. 3 Burr. 1807; 4 Id. 1980, 2210; Comyn's Dig. tit. Estate, 9, 12; 6 East, 661; 6 "Wendell, 569; 1 Saund. 236, b. n. It is stated by Baron Gilbert, 4 Bacon's Abr. 210, that since the Statute of Frauds the new lease must be in writing in order to operate as an implied surrender of the old one, for it is then of equal notoriety with a surrender in writing. This position is also adopted by Serjeant Williams, in his notes upon the case of Tliurshy v. Plant, 1 Saund. 236, n. b. But as surrenders by operation of law are expressly excepted out of the Statute, as a necessary consequence they are left as at common law; and there it is clear it need not be in writing to have the effect to surrender the old one, even if by deed. 2 Starkie's Ev. 342 ; 20 Viner, 143, L. pi. 1, n. ; 1 Saunders, 236, n. c. I am inclined therefore to think that a valid parol lease, since the Statute, might produce a surrender in law within the reason and principle upon which this doctrine is founded. The true rule seems to be that laid down by Mr. Starkie, 2 Starkie's P]v. 342, as follows: the taking a new lease by parol is by operation of law a surrender of the old one, although it be by deed, provided it be a good one, and pass an interest according to the contract and intention of the parties; for otherwise the acceptance of it is no implied surrender of the old one. If the first lease in this case has not been surrendered, then there is no ground of defence against the action upon the express cove- nants contained in it, even if we should concede a legal assignment from the tenant to Mills and Owen, and the acceptance of them expressly or impliedly by the plaintiff. 4 T. K. 98, 100; 1 Saund. 241, n. 5; Woodf. 278; Cro. Car. 188; Comyns's Land, and Tenant, 275, and cases there cited. But the plaintiff stipulated against assignment or underletting unless permission was given in writing, and a parol license is therefore inoperative. 2 T. R. 425; 3 Id. 590; 3 Madd. 218; Piatt on Gov. 427. This clause in a lease would be nugatory, if courts should allow parol evidence to control in the matter. Besides, a parol asmignmenf is void under the Statute of Frauds. The casn of Thomas v. Cnnl-. 2 Starkie's B. 408, is supposed to have a strong benring upon this one. In tliMt onso there Avas a pa.rn] Jrasp from yrar In year to Cook, who underlet to Pnrkcs. The rent being in arrear, Thomas distrained upon him, and he ]iaid :t 388 SCHIEFFELIN V. CARPENTER [CHAP. VI by a bill of exchange; on receiving which he declared he would have nothing more to do with Cook. Afterwards, however, he brought his action against him for rent then due. For the plaintiff, it veas insisted that there was no surrender within the Statute of Frauds. Abbott, C. J., left it to the jury to say, whether the plaintiff had not accepted Parkes as his tenant, with the assent of Cook ; and the jury finding in the affirmative, the plaintiff was nonsuited. The court at the ensuing term, when the case was moved, were of opinion there was a surrender by operation of law. They say if a lessee assign and the lessor accept the assignee of the lessee as his tenant, that in point of law puts an end to the privity of estate, and an action of debt cannot be brought to recover the rent. That I admit to be true, but if the lease had been in writing, according to the cases above cited, a suit might still be maintained upon the express cove- nant in it, though the privity of estate was gone. Besides, the assign- ment was void as such under the Statute of Frauds. 1 Campb. 318; 5 Bing. 25 ; Comyn's Land. & Ten. 55, and cases there cited : Woodf . 277. Again, the court say it is a rule of law, that the acceptance of a subsequent lease by parol operates as a surrender of a former lease by deed. That is true under the circumstances we have before endeavored to explain, and is undoubtedly the legal ground upon which that case may be maintained. The case sufficiently shows that the implied parol demise to Parkes was a valid one to the extent intended by both parties : the one to Cook was a lease from year to year, and the acceptance of Parkes, as tenant in his place, impliedly gave him the same tenure and term ; no writing was neces- cary for that purpose. This is the ground upon which the case is said to stand by the court, in commenting upon it in a subsequent term. 4 Barn. & Cres. 922. In the case of Grimman v. Legge, 8 Barn. & Cres. 324, the lease was by parol for one year, for the first and second floor of a house; a dispute having arisen before the end of the year, the tenant said she would quit. The landlord said he would be glad to get rid of her. She accordingly left the premises, and possession was taken hy him. The facts were submitted to the jury, to presume a rescind- ment of the original contract between the parties. The case of Stone v. Whiting, 2 Starkie, 235, is precisely like the case of Thomas V. CooTc, and stands upon the same principle. In the case of White- head V. Clifford, 5 Taunt. 518. the lease was by parol from year to year, and stands upon the footing of Grimman v. Legge. In the case of Hamerton v. Stead, 3 Barn. & Cres. 478, a tenant from year to year entered into an agreement in writing for a lease to him and another, and from that time both occupied. It was held that the new agreement, coupled with the joint occupation, determined the former tenancy, and operated as a surrender in law, though the lease contracted for was never granted. If the new agreement and occupation were viewed as a tenancy from year to year, which was SECT. IV] ADAMS V. BURKE 389 of equal tenure with the first lease, there was at least no hardship in this decision. The judges obviously were somewhat embarrassed in their endeavors to place the case upon principle, and some of their observations conflict with the case in 6 East, 86, which they admitted to be good law. The first case was by parol from year to year, and might well have been put upon the footing of the cases to which I have referred, where the facts were submitted to the jury to find the first contract rescinded. The law seems to be well settled, that under a covenant to repair like the one in question, the landlord need not wait till the expira- tion of the term before bringing an action for the breach, under an idea that the tenant may, before he leaves the premises, put them in good condition. 1 Barn. & Aid. 584; 2 Ld. Raym. 803, 1125; 1 Salk. 141; Piatt on Gov. 289; Comyn's Land. & Ten. 210. If the covenant was only to leave the premises in as good a condition as the tenant found them, it seems an action would not lie till the end of the term. Shep. Touch. 173; Piatt on Gov. 289. The defendants cannot question, in^ this action, the title of the landlord. The action is upon an express covenant between the parties, and the suit, if sustained at all, must be by the plaintiff alone. New trial denied. ADAMS V. BURKE 21 R. I. 126. 1898. Covenant by lessor against lessee for rent due under a written lease which had been assigned by the lessee, the lessor having ac- cepted certain of the rent from the assignee. Heard on defendant's petition for a new trial. Per Guriam. The testimony fails to show, as claimed by the de- fendant, that the plaintiff was notified of the assignment of the lease and accepted the assignee as lessee in place of the defendant. The law is well settled that a mere assignment of a lease and an accept- ance of rent by the lessor from the lessee do not preclude the lessor from maintaining an action of covenant against the lessee on his covenant for the payment of rent. Almy v. Greene. 13 R. T. 350; FJefrher v. McFarlane, 12 Mass. 43; Wall v. Einds, 4 Gray, 256; Anriol v. Mills, 4 Durn. & E. (Term Rep.) 94. The direction of the Common Pleas Division to return a verdict for the plaintiff was correct. Defendant's petition for new trial denied and dismissed, and case remitted to the Common Pleas Division with direction to enter judgment on the verdict.^ ^ MrKpe Caah Store v. Otero, 19 Ariz. 418: Bonnrtti v. Treat. 91 Cal. 223: Cue.<^ v. Larrabcc, 48 Me. 570; Newton v. Spearc Co., 19 R. I. 546, ante p. 298. Compare Led.vngrr v. Burke, 113 Ga. 74; Reeves v. MrComcfkcy, 168 Pa. 571; Phcne v. PopplcwcU, 12 C. B. N. S. 334; Oastlcr v. Henderson, 2 Q. B. D. 575. 394 PEOPLES EXPRESS CO. V. QUINN [CHAP. VI PEOPLES EXPRESS CO., INC., v. QUINN AND OTHERS 235 Mass. 156. 1920. Bill in Eqttity, filed in the Superior Court on Marcli 31, 1919, to enjoin the defendants, owners and lessors of a building occupied in part by the plaintiff as lessee, from tearing down the leased premises. In the Superior Court, the suit was heard by Jenny, J., a com- missioner having been appointed under Equity Rule 35 to take the evidence. Material facts found by the judge are described in the opinion. By order of the judge, a decree was entered dismissing the bill with costs. The plaintiff appealed. De Cotjrcy, J. The plaintiff, as lessee, seeks by this bill in equity to restrain the defendants, who are the lessors and owners, from doing certain acts in the process of tearing down a building in which the leased premises are situated. The following material facts were found by the trial judge. The defendants, copartners under the name of Amesbury Asso- ciates, executed and delivered to the plaintiff a lease of a store and room overhead, a portion of a building numbered 4 Market Square in Amesbury, for five years from October 1, 1918. The plaintiff sublet a portion of the premises to one Sam Levine, with the consent of the defendants. In March, 1919, the associates desired to erect a new brick building on the site of the leased premises and of adjoining land owned by them, and had plans prepared for that pur- pose. They had interviews with Levine and one McCarthy (who was duly authorized to act for the plaintiff) ; and it was orally agreed by all the parties, in substance, as follows : The plaintiff and Levine should surrender possession of the leased premises; the defendants should provide for them, free of rent, until the new building was ready for occupation, a store in which to carry on their business, and bear all the expense of moving their goods and effects to the new location; and they should give the plaintiff and Levine a lease of a store in the contemplated building for a time as long as the remainder of their present term, and at the same rental. McCarthy and Levine visited the store which was to be provided for their iise during the construction of the new building, and agreed to accept the same. After said oral agreement was made, and in reliance thereon, the defendants hired the store for the temporary occupancy of the plaintiff and Levine; entered into a contract wnth one Watkins in the sum of $4,450 for the excavation and mason work required for the new structure; and executed a lease to the F. "W. Woolworth Company of premises constituting part of the building to be erected and comprising a portion of the location described in the present SECT. IV] PEOPLES EXPRESS CO. V. QUINN 395 lease of the plaintiff. They advertised the old houses for sale and sold them for $25 each. Watkins, under his contract, began exca- vating in the rear of the leased building and tearing down the adjoining one, when the plaintiff forbade the defendants from entering upon the leased premises and brought this suit. No objec- tion was made by Levine. He stood by his oral agreement, although according to his testimony, McCarthy urged him to repudiate it as not being binding because not in writing. A decree was entered dismissing the plaintiff's bill. It is argued by the defendants, besides other matters, that the decree was warranted on the ground that there was a surrender of the plain- tiff's estate in the premises by operation of law within the moaning of R. L. c. 127, § 3. The trial judge did not make a finding that there was a surrender, and we are not prepared to say that the facts establish one. Even if we assume that the acts of the defend- ants were equivalent to taking possession of the leased premises, it does not appear that the plaintiff had abandoned its possession. Amorij v. Kannojfsl-ij, 117 Mass. 351. Talbot v. Whipple, 14 Allen,' 177.1 But the judge was Avell warranted in denying an injunction to the plaintiff in the circumstances here disclosed. McCarthy, who was its treasurer, manager, and owner of substantially all its capital stock, and who, the judge found, was duly authorized to act in its behalf, made a fair agreement with the defendants which he now repudiates, apparently because it was not in writing. There was evidence that when it was proposed to embody in writing the agree- ment between the plaintiff and Levine, McCarthy said " There is no need of signing this paper, because I will see my lawyer and get him to fix up a paper for Sam to sign, and then there wont be any chance for any law suit between Sam and I;" that he said nothing about any paper between his company and the defendants; and that he told them it was all right, and they might go ahead and make their contracts to erect the building. In reliance on his oral agreement and assurances the defendants in good faith proceeded 1 In the following cases abandonmont of the premises by the tenant and re-entry thereon by the landlord were held under the circumstances to create a surrender. Sluihan v. Herzherg, 73 Ala. 59; Armour Co. v. Des Mnincf! Co., 116 Iowa 725; Wil}iam.s v. Jones, 1 Bush. (Ky.) 621; McCann V. Bns.^, 117 Me. 548; Lamar v. McNamce, 10 Gill & J. (Md.) 116; Talbot v. Whipple, 14 All. (Mass.) 177; Elliott v. Aiken. 45 N. H. 30; ^filler v. Dcn- 7?i.9, 68 N. J. L. 320; Hargrove v. Bourne, 47 Okla. 484; Hart v. Pratt, 19 Wash. .560; Kneeland v. Schmidt, 78 Wis. 345; Boi/d v. Gore, 143 Wis. 531. See Okie v. Peraon. 23 App. D. C. 170. 183; Smith v. PendergaM. 26 Minn. 318; Frankel v. Steman, 92 Ohio St. 197; 4 A. L. R. 672 note. But re-entri' by the lanihiU. 89 Pa. 58; Milling v. Becker, 96 Pa. 182; Smith v. Hunt. 32 R. I. 326; Chandler v. Hinds, 135 Wis. 43. 396 THOMAS V. COOK [CHAP. VI with their plans. As the trial jutlgc found, " if prevented from tearing down the old building described in the lease to the plaintiff, and constructing a new building on said premises, they would be subject to serious expense, and possibly to considerable litigation." There is some evidence from which it might be inferred that, while giving the defendants the impression that he would make no trouble for them, McCarthy intentionally refrained from putting the agree- ment into writing with a purpose to take advantage of that fact later. The judge well may have concluded that the plaintiif had estopped itself from setting lap as a basis for equitable relief, the fact that its agreement was not in writing. As was said in Davis V. Downer, 210 Mass. 573, 576, " Where a person has been induced to make expenditures upon land, to construct improvements thereon or to change his situation materially in reliance upon the perform- ance of the oral agreement and in expectation of the rights to be acquired thereby, refusal to carry out the agreement is not merely deprivation of the rights it was intended to confer, which alone is within the statute of frauds, but is in addition ' an infliction of an unjust and unconscientious injury and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the statute of frauds.' " Williams v. Carthy, 205 Mass. 396. Banaghan V. Malaney, 200 Mass. 46. Fenner v. Blake, [1900] 1 Q. B. 426. And presumably the trial judge took into consideration the addi- tional fact that the granting of an injunction would operate in- equitably to the defendants and subject them to a loss out of all proportion to the actual injury, if any, suffered by the plaintiff. Levi V. Worcester Consolidated Street Railway, 193 Mass. 116. Decree affirmed, with costs. THOMAS V. COOK 2 B. & Aid. 119. 1818. Action for use and occupation. At the trial of this cause at the London sittings after Trinity Term before Ahhott, J., it appeared that the plaintiff had originally let the premises, consisting of a house in Long Lane, to the defendant as tenant from year to year. After he had resided there for some time, the defendant underlet them to one Perkes, commencing at Christmas 1816. At Lady-day 1817, defendant distrained Perkes's goods for rent in arrear. Pent being then due from the defendant to Thomas, the latter gave notice to Perkes not to pay the rent to the defendant, but to him; and upon Cook's refusing to take Perkes's bill for the amount then due, the plaintiff agreed to take it himself in payment of the rent due from Cook to him, saying that he would not have anything further SECT. IV] THOMAS V. COOK 397 to do witli Cook. And afterwards, in October 1817, the plaintiff himself distrained the goods of Perkes for rent in arrear. The jury found, by the direction of the learned judge, a verdict for the de- fendant, on the ground that Thomas had, with the assent of Cook, accepted Perkes as his tenant of the premises. And now Topping moved for a new trial. Abbott, C. J, By the third section of the Statute of Frauds, it is enacted " that no leases, estates, or interests, either of freehold, terms of years, or any other uncertain interest in any messuages, manors, lands, tenements, or hereditaments shall be surrendered, unless by deed or note in writing or by act and operation of law." And the question in this case is, whether what has been done will amount to a surrender by act and operation of law. I^ow the facts of the case are these. The plaintiff Thomas had let the premises in question to the defendant as tenant from year to year, and the de- fendant underlet them to Perkes. The rent being in arrear, the de- fendant, on Lady-day 1817, distrained the goods of Perkes, who having tendered a bill in payment of the rent which the defendant had refused to receive, the plaintiff then interposed, took the bill in payment, and accepted Perkes as his tenant : and afterwards in October 1817, himself distrained the goods of Perkes for rent then in arrear. I left it to the jury to say whether under these circum- stances the plaintiff had not, with the assent of Cook, accepted Perkes as his tenant of the premises, and the jury found that fact in the affirmative. I think, therefore, this amounted to a valid sur- render of Cook's interest in the premises, being a surrender by act and operation of law. The consequence is that the plaintiff can have no claim for rent against the present defendant, and that the verdict therefore was right. Bayley, J. If a lessee assigns over his interest, and the lessor accepts the assignee as his tenant, the privity of estate is tliereby destroyed, and on that ground it is not competent for the lessor to bring debt against the lessee. Where, indeed, the contract is by deed, there he may bring covenant by the Statute o:^ H. 8. In this case, the landlord has accepted Perkes as his tenant, and must be con- sidered to have made his election between Perkes and Cook. And the case of Phipps v. Smith orpe, 1 Barn. e Warren, Cas. on Prop., pp. 478-486. 421 422 BARTLET V. HARLOW [CHAP. VII extended on the " real estate held as aforesaid, or part thereof, de- scribing the same with as much precision as the nature and situa- tion thereof will admit." It is contended by the counsel for the petitioner, that the officer and the appraisers, in pursuance of this Statute, may set off all the debtor's interest and estate in a part of the land held in common ; and that, although a levy on a part of his interest in the whole land would be good, yet they are not -confined to this mode. On the other side it is contended, that the Statute speaks of levy- ing in such a case on part of the estate, and not on pai-t of the land; and that any construction, contrary to the plain import of the words, would be highly injurious to the other co-tenants. — To this it may be added, that in the following section of the same Statute, it is said that " when the real estate extended upon cannot be divided and set out by metes and bounds as before described, or by the description before mentioned, then execution shall be extended upon the rents of such real estate ; " making a plain distinction between the two modes of levying before mentioned, and showing that the description contemplated in case of a jointenancy, . And in another place he says: " If there be two joint tenants of a wood or arable land, the one has 448 CALVERT V. ALDRICH [CHAP. VII no remedy against the other to make inclosure or reparations for safeguard of the wood or corn," but if there be two joint tenants of a house, the one shall have his writ dr reparatione facicndd against the other. This is said to be because of " the preeminence and privilege which the law gives to houses which are for men's habi- tation." Bowles's case, 11 Co. 82. In Carver v. Miller, 4 Mass. 561, it was doubted by Chief Justice Parsons whether these maxims, of the common law, as applied to mills, are in force here, especially since the provincial statute of 7 Anne, c. 1, revised by St. 1795, c. 74. In Loring v. Bacon, 4 Mass. 575, the plaintiff was seised in fee of a room and the cellar under it, and the defendant of the chamber overhead and of the remainder of the house; the roof was out of repair; the defendant, being seasonably requested, refused to join in repairing it; and thereupon the plaintiff made the necessary repairs, and brought assumpsit to recover from the defendant his proportion of their cost. This, it will be observed, was not a case of tenancy in common, but of distinct dwelling-houses, one over the other. Chief Justice Parsons said : " If there is a legal obligation to contribute to these repairs, the law will imply a promise. We have no statute nor any usage on the subject, and must apply to the common law to guide us." " Upon a very full research into the principles and maxims of the common law, we cannot find that any remedy is provided for the plaintiff." It was not absolutely decided that an action on the case would not lie, but the intima- tions of the court on the subject were such that no further attempt appears to have been made. The relations between tenants in common were not actually involved in this case, and the remarks touching the writ de reparatione were only incidental and by way of illustration. Doane v. Badger, 12 Mass. 65, was an action on the case. The plaintiff had a right to use a well and pump on the defendant's land; and the defendant had removed the pump and built over the well, thereby depriving the plaintiff of the use of the water. The judge before whom the case was tried had instructed the jury that the defendant, by the terms of a deed under which he claimed, was bound to keep the well and pump in repair, although they were out of repair when he purchased, and, without any previous notice or request, was liable in damages for the injury the plaintiff had sustained by his neglect to make repairs. The court held that no such evidence was admissible under the declaration, the cause of action stated being a misfeasance, and the proof offered being of a nonfeasance only; also, that a notice and request were indispensable before any action could be maintained. Mr. Justice Jackson in delivering the opinion made some general observations, unnecessary to the decision of the cause, the correctness of which requires a par- ticular examination. He said that the action on the case seems CALVERT V. ALDRICH 449 to be a substitute for tbe old writ cle rcparaiione faciendd'^ between tenants in common, and oould not be brought until after a request and refusal to join in nuiking the repairs. He added: "From the form of the writ in tlie register, it seems that the plaintiff, before bringing the action, had repaii'ed the house, and was to recover the defendant's proportion of the expense of those repairs. The writ concludes, ' in ipsius dispendium non modicum et gravamen.' It is clear until he have made the repairs he cannot in any form of action recover anything more than for his loss as of rent, &c., while the house remains in decay. For if he should recover the sum necessary to make the repairs, there would be no certatnty that he would apply the money to that purpose." Mumford v. Brown, 6 Cowen 475, a per curiam opinion of the supreme court of jS^ew York, and Cojjin v. Heath, 6 Met. 80, both contain obiter dicta to the same effect, apparently founded upon Doane v. Badger, with- out further research into the ancient law. If it were true that the writ de reparatione was brought by one co-tenant, after he had made repairs, to recover of his co-tenant a due proportion of the expense thereof, there would certainly be much reason for holding an action on the case to be a modern substitute for the obsolete writ de reparatione. But all the Latin forms of the writ in the Register, 153, show that it was brought before the repairs were made, to compel them to be made under the order of court. Indeed, this is implied in the very style by wdiich the writ is entitled, de reparatione faciendd, viz: of repairs to be made; the future par- ticiple faciendd being incapable of any other meaning. This also appears in Fitzherbert, N. B. 127, where the writ between cotenants of a mill is translated ; the words, m ipsius dispendium non modicum et gravamen, (quoted by Judge Jackson,) being correctly rendered, " to the great damage and grievance of him," the said plaintiff. Fitzherbert says : " The writ lieth in divers cases ; one is, where there are three tenants in common or joint or pro indiviso of a mill or a house, kc, which falls to deca}', and one will repair but the other will not repair the same; he shall have this writ against them." In the case of a ruinous house which endangers the plaintiff's ad- joining house, and in that of a bridge over which the plaintiff has a passage, which the defendant ought to repair, but which he suffers to fall to decay, the words of the precept are, " Command A. that," &e., " he, together with B. and C, his partners, cause to he repaired." The cases in the Year Books referred to in the margin of Fitzherbert confirm the construction which w^e regard as the only one of which the forms in that author are susceptible, namely, that the writ de reparatione was a process to compel repairs to be made under the order of court. There is nothing in them to indicate that an action for damages is maintainable by one tenant in common against an- 1 See Ward v. Ward, 40 W. Va. 611, 617; 52 Am. St. Rep. 934 note. 450 CALVERT V. ALDRICH [CHAP. VII Other because the defendant will not join with the plaintiff in re- ]>airiug the common property. In a note to the form in the case of a bridge, it is said in Fitzherbert: " In this writ the party recovers his damages, and it shall be awarded that the defendant repair, and that he be distrained to do it. So in this writ he shall have the view contra, if it be but an action on the case for not repair- ing, for there he shall recover but damages." There is no doubt that an action on the case is piaintainable to recover damages in cases where the defendant is alone bound to make repairs for the benefit of the plaintiff without contribution on the part of the latter, and has neglected and refused to do so. See Tenant v. Goldivin, 6 Mod. 311; S. C. 2 Ld. Haym. 1089; 1 Salk. 21, 360. The difficulty in the way of awarding damages in favor of one tenant in common against his cotenant for neglecting to repair is, that both parties are equally bound to make the repairs, and neither is more in default than the other for a failure to do so. Upon a review of all the authorities, we can find no instance in England or this country in which, between cotenants, an action at law of any kind has been sustained, either for contribution or damages, after one has made needful repairs in which the other refused to join. We are satisfied that the law was correctly stated in Converse v. Ferre, 11 Mass. 325, by Chief Justice Parker, w^ho said : " At common law no action lies by one tenant in common, who has ex- pended more than his share in repairing the common property, against the deficient tenants, and for this reason our legislature has provided a remedy applicable to mills." The writ de re-paratione faciendd brought before the court the question of the reasonableness of the repairs proposed, before the expenditures were incurred. It seems to have been seldom resorted to ; perhaps because a division of the common estate would usually be obtained where the owners were unable to agree as to the necessity or expediency of repairs. Between tenants in common, partition is the natural and usually the adequate remedy in every case of controversy. This is the probable explanation of the few authorities in the books, and of the obscurity in which we have found the whole subject involved. But if we have fallen into any error in our examination of the original doctrines of the common law of England, it is at least safe to con- clude that no action between tenants in common for neglecting or refusing to repair the common property, or to recover contribution for repairs made thereon by one without the consent of the other, has been adopted among the common law remedies in Massachusetts. This result is in accordance with the rulings at the trial. Exceptions overruled.^ 1 Merchants Bank oj Florence v. Foster, 124 Ala. 696; Leigh v. Dickeson, 12 Q. B. D. 194, accord. But see Fowler v. Fowler, 50 Conn. 256; Cooper v. Brown, 143 Iowa 482; Manhattan Co. v. White. 48 Mont. 565; Mumford v. Brown. 6 Cow. (N. Y.) 475; Bcaty v. Bordwell, 91 Pa. 438; Duplcs.^e v. Haskell, 89 Vt. 166. PICKERING V. PICKERING 451 PICKERING V. PICKERING 63 N. H. 468. 1885. Bill in equity, for an accounting between tenants in common. The defendant claimed to be allowed for necessary repairs made by him upon the premises without notice to the plaintiff. BiN(}HAM, J. The plaintiff seeks for an accounting, and to charge the defendant for the rents and income of lands and buildings there- on. The parties are tenants in common. The defendant has had the possession and income of the property since December 27, 1883, and has in that time expended $370 in necessary repairs that mate- rially increased the value of the buildings and the income, and claims to be allowed for the same in the accounting. The plaintiff had no notice of the repairs, and was not requested to join in making them. If we are to consider it settled at common law that one tenant in common cannot recover of his co-tenant a contribution for necessary repairs, where there is no agreement or request or notice to join in making them, or excuse for a notice not being given to join (Stevens V. Thompson, 17 N. H. 103, 111; Wigging v. Wiggin, 43 N". H. 561, 568), because both parties, until this is done, are equally in fault, one having as much reason to complain as the other (Mum ford v. Brown, 6 Cow. 475-477; Kidder v. Rixford, 16 Vt. 169-172; 4 Kent Com. 371; Doane v. Badger, 12 Mass. 65-70; Calvert v. Aldrich, 99 Mass. 78), it does not follow that in this proceeding for an equi- table accounting for the income, a part of which i's produced by the repairs, the defendant may not be allowed for them. There is a wide difference between a right of action at common law to recover a contribution for repairs, and a right to have them allowed out of the income, which exists in part through their having been made. In the first case, the party makes them at his will on the common property without the consent or knowledge of his co-tenant, while in the last the co-tenant recognizes the existence of the repairs, that they have materially increased the income, but demands the increase and refuses to allow for the repairs. The objection, that no privity, no joint knowledge, no authority existed, is in equity and good conscience waived when tlie entire income is demanded. It is not unlike the ratification of the acts of an assumed agent: it relates biU'k to the time of making the repairs, nd makes the plaintiff a privy from tlic beginning. He cannot cdaini the repairs and the income, and ('quital)ly ignore the expense of making them. In Monro v. Cable, 1 Johns. Ch. 385, a bill for the redemption of a mortgag(\ it was decided that the mortgagee should not be charged for rents and j^rofits arising exclusively from repairs made by him. In Jacl-son v. Looinis, 4 Cow. 168, an action of tres])ass for mesne profits against a bona fide purchaser, it was held that he should be allowed against the plaintiff, in mitigation of damages, the value of 452 PICKERING V. PICKERING [CHAP. VII permanent improvements, made in good faith, to the extent of the rents and profits claimed by the plaintiff. Green v. Biddle, 8 Wheat 1. In Rathhun v. Colton, 15 Pick. 472, 485, it was decided that when the rent of a trust estate is increased in consequence of improvements made by the trustee, the beneficiary may be put to his election, either to allow the trustee the expense of such improvements, or be deprived of the increase of rent obtained by means thereof; that the question was not whether the trustee has a right to make a charge for the improvements, but whether the plaintiifs were entitled to receive any benefit for them, they refusing to contribute their share towards the expense. It seems, however, that courts of equity have not confined the doc- trine of compensation for repairs and improvements to cases of agree- ment or of joint purchases, but have extended it to other cases where the party making the repairs and improvements has acted in good faith, innocently, and there has been a substantial benefit conferred on the owner, so that in equity and right he ought to pay for the same. 2 Story Eq. Jur. §§ 1236, 1237, 799 b; Coffin v. Heath, 6 Met. 76, 80. And in 2 Story Eq. PI. § 799 b, n. 1, it is said, — " In cases where the true owner of an estate, after a recovery thereof at law from a bona fide possessor for a valuable consideration, with- out notice seeks an account in equity as plaintiff against such pos- sessor for the rents and profits, it is the constant habit of courts of equity to allow such possessor (as defendant) to deduct therefrom the full amount of all meliorations and improvements which he has beneficially made upon the estate, and thus to recoup them from the rents and profits. . . . So, if the true owner of an estate holds only an equitable title thereto, and seeks the aid of a court of equity to enforce that title, the court will administer that aid only upon the terms of making compensation to such bona fide possessor for the amount of his meliorations and improvements of the estate beneficial to the owner." This is on the old, established maxim in equity juris- prudence, that he who seeks equity must do equity. Han nan v. Osborn, 4 Paige Ch. 336; Deck's Appeal, 57 Penn. Gt. 468, 472; Pey- ton V. Smith, 2 Dev. & Bat. Eq. 325, 349 ; Hibbert v. Cool-e, 1 Sim. v^ S. 552. The sum of $370 for the repairs may be deducted from the income, if it amounts to that sum : if not, then to cancel the income, whatever it may be. The claim for insurance should be disallowed. It does not appear that it was procured for the plaintiff, or in her interest, or with her knowledge, or that she has ever received or accepted any benefit arising from it. Case discharged. Blodgett, J., did not sit ; the others concurred.^ 1 Compare Alexander v. Ellison, 79 Ky. 148; Hotopp v. Morrison Lodge, no Ky. 987. PARTITION 453 Lit. § 247. Also, tliore is another partition. As if there be four parceners, and they will not agree to a partition to be made between them, then the one may have a writ of partitione facienda against the other three, or two of them may have a writ of partitione facienda against the other two, or three of them may have a writ of parti- tione facienda against the fourth, at their election. Lit. § 250. And note, that partition by agreement between par- ceners may be made by law between them, as well as by parol with- out deed, as by deed. Co. Lit. 169 a. Here it appeareth, that not only lands and other things that may pass by livery without deed, but things also that do lie in grant, as rents, commons, advowsons and the like, that cannot pass by grant without deed, whether they be in one county or in several counties, may be parted and divided by parol without deed. But a partition between jointenants is not good without deed, albeit it be of lands, and that they be compellable to make partition by the Statutes of 31 H. 8, cap. 10, and 32 H. 8, cap. 32, because they must pursue that act by writ de partitione facienda; and a partition between jointenants without writ remains at the common law, which could not be done by parol. And so it is and for the same reason of tenants in common. But if two tenants in common be, and they make partition by parol, and execute the same in severalty by livery, this is good, and sufficient in law. And therefore where books say, the jointenants made partition without deed, it must be intended of tenants in common and executed by livery.^ Lit. § 262. Also, if a man be seised in fee of a carve of land by just title, and he disseise an infant wuthin age of another carve, and hath issue two daughters, and dieth seised of both carves, the On allowance in a partition suit for repairs by a cotenant, see Drennen V. Walker, 21 Ark. 539; McDcarman v. McClurr, 31 Ark. 559; Ilogan v. MrMahon, 115 Md. 195; Ford v. Knapp, 102 N. Y. 135; Fa.<:sitt v. Seip, 249 Pa. 576. Compare Ward v. Ward, 40 W. Va. 611. 1 See Freeman, Cotenancy, § 396. Since the Statute of Frauds parol partition, followed by possession by each co-tenant of the portion allotted to him. hixs been upheld. Belts v. Ward. 196 Ala. 248; Vaughn v. Harper, 106 S. E. (Ga.) 100; Duffi/ v. Duffy, 243 III. 476; Breaux v. Hanson Lumber Co., 125 La. 421; Wddey v. Bonney, 31 Mi.< v. Hair, 80 S. C. 460; Meaeham v. Meaeham, 91 Tenn. 532. And see Sunjt v. Swijt. 121 Ark. 197; Piatt V. Hubbell, 5 Ohio 243; Eaton v. Tallmadge, 24 Wis. 217; 3 L. R. A. N. s. 806 note. But see Duncan v. Syli'c^tcr, 16 Me. 388; Porter v. Hill, 9 Mass. 34; Ballon V. Hale, 47 N. H. 347; WiUiaynson v. Wayland Od Co., 79 W. Va. 754; Johnson v. Wihon, Willes 248. As to the nature of a partition drod son Bornsfein v. Dnh'-rti/. 204 Mass. 280, 283; Harrington v. RaivLs, 131 N. C. 39; Cottrell v. Criffiths, 108 Tenn. 191 ; 57 L. R. A. 332 note. 454 PARTITION [chap. VII infant being then within age, and the daughters enter and make partition, so as the one earve is allot tc^d for the part of the one, as per case to the youngest in allowance of the other carve which is allotted to the purparty of the other, if afterward the infant enter into the carve whereof he was disseised upon the possession of the parcener which hath the same carve, then the same parcener may enter into the other carve which her sister hath, and hold in par- cenary with her. But if the youngest alien the same carve to an- other in fee before the entry of the infant, and after the infant enter upon the possession of the alienee, then she cannot enter into the other carve; because by her alienation she hath altogether dis- missed herself to have any part of the tenements as parcener. But if the youngest before the entry of the infant make a lease of this for term of years, or for term of life, or in fee tail saving the rever- sion to her, and after the infant enter, there peradventure other- wise it is; because she hath not dismissed herself of all which was in her, but hath reserved to her the reversion and the fee, &c. Co. Lit. 173 b, 174 a. What if the whole estate in part of the purparty of one parcener be evicted by a title paramount; whether is the whole partition avoided, for that Littleton here putteth the case that the whole purparty of the one is defeated? The second question is, whether if but part of the state of one coparcener be evicted, as an estate in tail, or for life, leaving a reversion in the coparcener, whether that shall avoid the partition in the whole? To the first it is answered, that if the whole estate in part of the purparty be evicted, that shall avoid the partition in the whole, be it of a manor, that is entire, or of acres of ground, or the like that be several; for the partition in that case implieth for this purpose both a warranty and a condition in law, and either of them is entire, and giveth an entry in this case into the whole. And so hath it been lately resolved both in the case of exchange and of the partition. To the second, if any estate of freehold be evicted from the co- parcener in all or part of her purparty, it shall be avoided in the whole. As if A. be seised in fee of one acre of land in possession, and of the reversion of another expectant upon an estate for life, and he disseise the lessee for life who makes continual claim; A. dieth seised of both acres, and hath issue two daughters; partition is made, so as the one acre is allotted to the one, and the other acre to the other ; the lessees enter : the partition is avoided for the whole, and so likewise hath it been lately resolved. Yet there is a diversity between the warranty, and the condition which the law createth upon the partition. Where one coparcener taketh benefit of the condition in laAv, she defeateth the partition in the whole. But when she voucheth by force of the warranty in law for part, the partition shall not be defeated in the whole, PARTITION 455 but she shall recover recompense for that part. And therein also there is another diversity between a recovery in value by force of the warranty upon the exchange and upon the partition. For upon the exchange, he shall recover a full recompense for all that he loseth. But upon the partition she shall recover but the moiety, or half of that which is lost, to the end that the loss may be equal. ^ Lit, § 290. Also, jointenants (if they will) may make partition between them, and the partition is good enough; but they shall not be compelled to do this by the law; but if they will make partition of their own will and agreement, the partition shall stand in force. Lit. § 318. Also, tenants in common may well rnake partition between them if they will, but they shall not be compelled to make partition by the law; but if they make partition between themselves by their agreement and consent, such partition is good enough, as is adjudged in the book of assizes. St. 31 Hen. VIII. c. 1." II. Be it therefore enacted by the King our most dread sovereign lord, and by the assent of the Lords spiritual and temporal, and by the Commons, in this present Parlia- ment assembled, that all joint tenants and tenants in common, that now be, or hereafter shall be, of any estate or estates of inheritance in their own rights, or in the right of their wives, of any manors, lands, tenements or hereditaments within this realm of England, Wales, or the marches of the same, shall and may be coacted and compelled, by virtue of this present Act, to make partition between them of all such manors, lands, tenements and hereditaments, as they now hold, or hereafter shall hold as joint tenants or tenants in common, by writ de jmrticipatione facienda, in that case to be devised in the King our sovereign lord's Court of Chancery, in like manner and form as coparceners by the common laws of the realm have been and are compellable to do, and the same writ to be pursued at the common law. III. Provided alway, and be it enacted, that every of the said joint tenants or tenants in common, and their heirs, after such partition made, shall and may have aid of the other or of tlpieir heirs, to the intent to dereign the Avarranty paramount, and to re- cover for the rate, as is used between coparceners after partition made by the order of the common law; anything in this Act con- tained to the contrary notwithstanding. 1 See Rawle, Gov. for Title, 5th ed., §§ 277-279; Jones v. BigstajJ. 95 Ky. 395; Bcale v. Stroud, 191 Ky. 755; Brown v. TmrhofJ. 235 Mo. 449; Walker v. Hall, 15 Ohio St. 355; Weiser v. Weiser, 5 Watts (Pa.) 279; Patterson v. Lanning, 10 Watts (Pa.) 135. 2 The preamble is omitted. 456 WILLARD V. WILLAKD [CHAP. VII WILLARD V. WILLARD 145 U. S. 116. 1892. This was a bill in equity filed January 3, 1888, by Henry K. Willard against Joseph C. Willard, under the act of August 15, 1876, c. 297, (which is copied in the margin,^) for partition of land in the city of Washington, bounded on Pennsylvania Avenue on the south, Fourteenth street on the east, and F street on the north, containing more than 33,000 square feet, and with the building thereon known as Willard's Hotel. The allegations of the bill were that the plaintiff and the defend- ant were the owners of the land in fee simple, as tenants in common, and each the owner of an undivided half that the plaintiff became and was the owner of his haK under a deed from Henry A. Willard, dated December 1, 1887, and duly recorded; and that the plaintiff desired to have partition of the land, and to have his share thereof set apart to him in severalty; or, if in the opinion of the court the land could not be specifically divided between the parties without loss and injury to them and to the purposes for Avhich the land was used, that for the purposes of partition it might be sold, and the proceeds divided between him and the defendant ; and he praj^ed for partition accordingly. The ausw^er, filed March 6, 1888, alleged that the plaintiff's father, Henry A. Willard, and the defendant were the owners in fee simple, as tenants in common, of the land; and that it was of great value, and for the past twenty-five years and upwards had been leased by Henry A. Willard and the defendant to different persons for hotel 1 An act relating to partition of real estate in the District of Columbia. Sec. 1. All tenants in common and coparceners of any estate in lands, tenements or hereditaments, equitable as well as legal, within the District of Columbia, may, in the discretion of the court, be compelled in any court of competent jurisdiction to make or suffer partition of such estate or estates. In proceedings for partition all persons in interest shall be made parties in the same manner as in cases of equity jurisdiction. And in pro- ceedings for partition under this act, the court may, in addition to the powers herein conferred, exercise such powers as are or may be conferred by virtue of the general equity jurisdiction of the court. Sec. 2. The court, in all cases, in decreeing partition, may, if it satis- factorily appears that said lands and tenements, or any estate or interest therein, cannot be divided without loss or injury to the parties interested, decree a sale thereof, and a division of the money arising from such sale among the parties, according to their respective rights and interests. Sec. 3. In all such sales, unless the court shall by special order direct or require, on good cause shown, that the sale be made for cash, the purchase money shall be payable one third on day of sale, one third in one year, and one third in two years thereafter, with interest, the deferred payment.? to be secured to the parties, according to their respective interests, by good and sufficient mortgage upon the premises so sold, which shall be subject to the approval of the court. 19 Stat. 202. WILLARD V. WILLARD 457 purposes, and was now under lease and used as a hotel at a remunera- tive rental; that the defendant had no knowledge of the conveyance to the plaintiff, and required proof thereof; and denied that the de- fendant should be compelled to make or suffer partition of the land, or that it was within the power of the court to deprive him, against his will and without his consent, of his interest and estate in the whole land, either by a partition in severalty or by a sale thereof. A general replication was filed, and proofs taken, which showed the following facts: The defendant and Henry A. Willard made a lease of the land for five years and four months from January 1, 3884, at an annual rent of $20,500, to Phoebe D. Cook, which was afterwards assigned, with the lessors' consent, to Orrin G. Staples. On December 1, 1887, Henry A. Willard conveyed to the plaintiff an undivided half of the land, in foe simple, by deed duly recorded. The property was peculiarly adapted to hotel purposes, and was worth in its present condition more than $600,000, and could not be divided without serious loss. The court in special term, on July 7, 1888, ordered a sale in accord- ance with the provisions of the act of Congress, and appointed trus- tees to make a sale and conveyance, and to pay the proceeds into court. The decree was affirmed in general term, on October 22, 1888. 6 Mackey, 559. The defendant appealed to this court, and assigned the following errors in the decree: " 1st. The property was under lease for a term of years at the time the bill was filed, and the plaintiff not entitled to possession. "2d. Under the act of Congress of August 15, 1876, a tenant in common has not an absolute right to partition, but it is dis- cretionary with the court, and something besides the existence of the tenancy must be averred and shown in order to call such discretion into exercise, which was not done in this case." Mr. Justice Gray, after stating the case as above, delivered the opinion of the court. In a court having general jurisdiction in equity to grant parti- tion, as in a court of law, a tenant in common, whose title in an undivided share of the land is clear, is entitled to partition, as a matter of right, so that he may hold and enjoy his property in severalty. Story Eq. Jur. §§ 653, 656; Parker v. Gerard, Ambler, 236; Calmady v. Calmady, 2 Ves. Jr. 568; Wisely v. Findlay, 3 Rand. 361; Smiih v. l:^mitli, Hoffman Ch. 506, and 10 Paige, 470; Donnell v. Mateer, 7 Iredell Eq. 94; Camphell v. Lowe, 9 Marvland, 500. Under the English stntutes of 31 H. VTIT, c. 1, and 32 II. VIIT, c. 32, in force in the State of Maryland before ISOl, and therefore in the District of Columbia, any tenant in common in fee might compel partition at bnv by division of the estate held in common. Alexander's British Statutes in Maryland, 311, 312, 332; Lloyd v. 458 WILLARD V. WILLAUD [CHAP. VII Gordon, 2 Har. & McH. 254; Rev. Stat. D. C. § 92. It is unneces- sary to consider how far the Supreme Court of the District of Columbia had equity jurisdiction in cases of partition before the act of Congress of August 15, 1876, c. 297, because this act expressly empowers the court, exercising general jurisdiction in equity, in its discretion, to compel all tenants in common of any estate, legal or equitable, to make or suffer partition, either by division of the estate, or, if it satisfactorily appears- that the estate cannot be divided without loss or injury to the parties interested, then by sale of the estate and division of the proceeds among the parties, according to their respective rights and interests. 19 Stat. 202. This statute, while it authorizes the court to compel a partition by division or by sale, at its discretion, as the facts appearing at the hearing may require, does not affect the general rule, governing every court of law or equity having jurisdiction to grant partition, that parti- tion is of right, and not to be defeated by the mere unwillingness of one party to have each enjoy his owm in severalty. In equity, as at law, a pending lease for years is no obstacle to partition between owners of the fee. Co. Lit. 46a, 167a ; Com. Dig. Parcener, C. 6; Wilhinson v. Joherns, L. K. 16 Eq. 14; Hunt V. Hazelton, 5 N. H. 216; Woodworth-y. Campbell, 5 Paige, 518; Thruston v. Minhe, 32 Maryland, 571; 0001: v. Wehh, 19 Minne- sota, 167. The decision in Hunnewell v. Taylor, 6 Cush. 472, cited by the appellant, was governed by an express statute of Massachu- setts authorizing a petition for partition " by any person who has an estate in possession, but not by one who has only a remainder or reversion," which was presently modified by an enactment that partition might be had notAvithstanding the existence of a lease of a whole or part of the estate. Mass. Stat. 1853, c. 410, § 1; Gen. Stat. c. 136, §§ 3, 67; Pub. Stat. c. 178, §§ 3, 68. In Moore v. Shannon, 6 Mackey, 157, there was an outstanding life estate, so that the plaintiff was not in possession of the freehold, and was therefore denied partition. See Co. Lit. and Com. Dig. uhi supra; Evans v. Bagshaw, L. R. 8 Eq. 469, and L. E. 5 Ch. 340; Brown V. Brown, 8 I'l'. H. 93. The present bill, after setting forth the titles in fee of the parties, alleges that the plaintiff desires to have partition of the land and his share set apart to him in severalty, or, if in the opinion of the court this cannot be done without injury to the parties and to the purposes for which the land is used, then by sale of the land and division of the proceeds, and prays for partition accordingly. The bill, following the statute, and seeking partition in either inode, as the court in its discretion might think fit, is in proper and sufficient form. Any allegation of special reasons for partition, or for having it made in one way or in the other, would have been unusual and superfluous. The decisions in Maryland, cited by the appellant, were made under statutes authorizing partition only HALL V. PIDDOCK 459 t wlien it would be for the interest and advantage of the parties that the land should be sold, and therefore held that it must be so alleged in the petition. Tomlinson v. McKaig, 5 Gill, 256; Mew- shaiu V. Meivshaw, 2 Maryland Cb, 12. This disposes of the only errors assigned or argued. It is not denied, and could not be, upon the proofs, that, if the plaintiff was entitled to partition, it was rightly ordered to be made by sale, and not by division of the estate. Decree affirmed?- Mr. Justice Brewer was not present at the argument, and took no part in the decision. HALL /;. PIDDOCK AND OTHERS 21 N. J. Eq. 311. 1871. The argument of this cause was had upon the bill, answer and proofs. The Chancellor. [Hon. Abraham O. Zabriskie.] The object of the bill in this case is to restrain partition proceedings com- menced at law, and for an equitable partition in this court. Courts of law have jurisdiction of partition, as well as courts of equity, and when proceedings have been commenced at law the tribunal must retain the jurisdiction, and a court of equity will not inter- fere with it, unless such interference becomes necessary to protect .some party thereto from fraud or wrong, or to secure to him some clear right which the law tribunal, from the manner of proceeding before it, cannot secure. For such purpose courts of equity, in exercising one of their principal functions, which is to remedy in- justice occasioned by the strict rules of the law and the manner of proceeding in courts of law, will interfere to prevent a failure of justice and loss of rights. In this case the complainant is tenant in common with the defend- ant, of an acre of land partly covered with buildings, situate in the county of Hunterdon, of which he owns three-fourths, and the de- fendant one-fourth. He claims that the buildings on the land were erected by those under whom he derives his title to the three- 1 Soo Wheat v. Wheat, 190 Ala. 461; Culver v. Culver, 2 Root (Conn.) 278; Drake v. Merkle, 153 111. 318; Richarchon v. VanCimdy, 271 111. 47G; Hill V. Sangamon Co., 295 111. 619; Calvert v. Calvert, 297 111. 22, 28; Dustin V. Broum, 297 111. 499; Tower v. Tower, 141 Ind. 223; Carson v. Heche, 222 S. W. (Mo.) 850; Chiekamauga Trmt Co. v. Lonas, 139 Tcnn. 228; 28 L. R. A. N. s. 125 note; L. R. A. 1918 D 4.54 note; 12 A. L. R. 644 note. Partition cannot be obtained by a plaintiff having legal title but not actual possession where the property is held by one claiming adversely to him. Ilarrifion v. International Silver Co., 78 Conn. 417; Channeey v. Wollenberg, 115 Pac. (Oreg.) 419; Freeman, Cotenancy, 2d ed., §§ 446. 447. But see Trainor v. Greenovgh, 145 111. 543. 460 HALL V. PIDDOCK [CHAP. VII fourtlis, and that no part were erected by tlie defendants, or those under Avhom they obtained title. The land belonged to Abraham Van Horn, who died in 1813. He devised it to his wife for life, and then to trustees for his son Matthew for his life, and at the death of Matthew to his four sons. The widow, Matthew, and three of his sons, conveyed the land to Abraham L. Voorhis, covenanting that the fourth son, George, should convey, when of age. Abraham L. Voorhis conveyed to D. Sanderson, who supposed that the title was perfect, and erected some buildings; Sanderson conveyed to John Hall, who supposed the title good, erected other buildings at considerable expense, and kept a • hotel in the mansion-house built by him on the premises. There were no improvements on the premises when conveyed to Abraham L. Voorhis. In 1865 Matthew died, and on the 1st of April of that year his son George conveyed his fourth to the defendants. Hall, believing his title good, denied their right, which they estab- lished by bringing an ejectment. The defendants then applied to the Chief Justice for the appointment of commissioners to divide, under the Statute for the more easy partitioii of lands; and such proceedings were had on that application, that an order for sale was made before the complainant had any knowledge of the proceed- ings. The regularity and legality of these proceedings are not denied. These facts stated in the bill are all admitted by the answer, ex- cept the allegation of the complainant, that he and those under whom he claims supposed that they had good title to the whole of the premises. Upon this point much evidence has been taken. But as this question, in the view I take of the matter, is not material to the decision, I shall not review this evidence. The rule that a tenant in common, who has made improvements on the land held in common, is entitled to an equitable partition, is well established, and is hardly disputed by counsel. The only good faith required in such improvements is that they should be made honestly for the purpose of improving the property, and not for embarrassing his co-tenants, or encumbering their estate, or hinder- ing partition. And the fact that the tenant making such improve- ments knows that an undivided share in the land is held by another, is no bar to equitable partition. 'No other want of good faith is alleged or contended for by the defendants in this cause. The peculiarities of an equitable partition are: that such part of the land as may be more advantageous to any party on account of its proximity to his other land, or for any other reason, will be directed to be set off to him if it can be done without injury to the others; that when the lands are in several parcels each joint owner is not entitled to a share of each parcel, but only to his equal share in the whole; that where a partition exactly equal cannot be made without injury, a gross sum or yearly rent may be directed to be HALL V. PIDDOCK 461 paid for owelty or equality of partition, by one whose share is too large, to others whose shares are too small; and that where one joint owner has put improvements on the property, he shall receive com- pensation for his improvements, either by having the part upon which the improvements are, assigned to him at the value of the land without the improvements, or by compensation directed to be made for them. The doctrine as to allowance for improvements is laid down by Justice Story in 1 Eq. Jur. § 655. It was recognized and acted on by the English Court of Exchequer in equity, in Swan v. Swan, 8 Price, 518; by the courts of New York, in Town v. Needham, 3 Paige, 553 ; St. Felix v. Ranhin, 3 Edw. Ch. 323 ; Conklin v. Conklin, 3 Sandf. Ch. 65, and Green v. Putnam, 1 Bai'b. S. C. 500; and by this court, in Broohfield v. Williams, 1 Green's Ch. 341; Ohert v. Obert, 1 Halst. Ch. 397, and Doughaday v. Crowell, 3 Stockt. 201. In Green v. Putnam and Broohfield v. Williams, as in this case, the improvements were made by tenants in common in reversion during the previous life estate, which was held no bar to the allow- ance. And in St. Felix v. Rankin, Conklin v. Conklin, Doughaday V. Crowell, Town v. Needham, and Brookfield v. Williams, the com- plainants were the parties claiming the allowance; and the allowance in these cases was not made, on the principle that a party asking relief in equity must first do what is equitable himself. In making the partition in this case, if any can be made without great injury, the share or one-fourth to be allotted to the defend- ants must, "if practicable, be set off from such part of the premises as has no improvements upon it or improvements of small value, and must be equal in value, without improvements, to one-fourth of what would be the value of the whole tract if it had no improve- ments upon it. I am not satisfied from the evidence that this tract cannot be partitioned in this manner without great injury. The report of the commissioners appointed by the Chief Justice, and his action in confirming it, do not affect the question as res ad judicata. There the direction was to divide the whole premises, including the build- ings, into four equal shares, and to assign one share by lot to each of the original tenants in common. I am satisfied that the premises could not be divided in that manner without great prejudice to the owners. In examining the map annexed to the answer, I see that the northeast side fronts on a public road, and that on the northwest side of the tract a lot of ninety feet in front, with a depth which might be extended to two hundred and forty-five feet, being nearly one-half of the whole tract, has upon it only a granary and a shed. If these are of small value, their value might be disregarded by consent of the complainant; or if they are, as seems probable, build- 462 HALL V. PIDDOCK [CHAP. VII ings that can be removed without much loss, the right to remove them within a reasonable time might be reserved to the complainant. Coupled with the right in equity to allow a proper amount as owelty to equalize the partition, the evidence, which consists mainly of the opinions of witnesses without regard to these matters, does not convince me that a partition cannot be made without great injury. It must, therefore, be referred to a master, to inquire into and report what would be the value of the whole tract if no improve- ments had been made upon it, and whether some part of the tract upon which no improvements have been made, or only improve- ments of small value, or that can be removed Avithout material loss, cannot be set off, Avliich will be, without improvements, equal in value to one-fourth of the value of the whole tract so ascertained ; or whether such part cannot be set off in that manner by allow- ing or charging a reasonable sum for owelty; and whether such partition can be made without great prejudice to the owners of the property. And further to inquire into and report what is the present value of the premises with the improvements now stand- ing on them, and also what has been the yearly net value of the premises from April 1st, 1865, when the defendants acquired their title to the one-fourth of it. The defendants are entitled to such portion of the fourth of the net proceeds of the premises as belongs to the land. The proper way to ascertain and apportion that, is to give to the land such proportion of the whole net yearly value, as the value of the land bears to the value of the whole premises, and to award one-fourth of it tp the defendants. If it shall appear that the premises cannot be divided in the manner directed, a sale must be ordered, and out of the proceeds of the sale a proper allowance made for the value of the improve- ments put upon the premises. The part of the proceeds to be allowed for the improvements must be such proportion as the value of the improvements, that is the excess of the value of the whole over the value of the land, bears to the value of the whole premises. The cases of ConM'in v. Conl'Jin and Green v. Putnam, are author- ity for such allowance out of the proceeds of the sale. In the last case, Justice Paige says : " Where one tenant in common lays out money in improvements on the estate, a court of equity will not grant a partition without first directing an account and suitable compensation, or else in the partition it will assign to such tenant in common that part of the premises on which the improvements have been made." And he directs a reference to inquire into the value of the buildings, and by whom paid for, and the amount of rents and profits, and by whom received, so that in case a sale should be ordered the proper allowance might be made. The costs and expenses incurred by the defendants in the pro- ceedings for partition begun by them, must be allowed out of the EMSON V. POLHEMUS 463 proceeds of sale; those proceedings were authorized by Statute, and were arrested by this court in order that more full equity might be done between the parties than could be done at law.^ EMSON V. POLHEMUS 28 N. J. Eq. 439. 1877. The respondent, Polhemus, and one Hodson were tenants in common of a tract of woodland, of which they made a voluntary partition, by deeds dated August 21st, 1865. These deeds were duly recorded. Before this parting of the property, the appellant, Emson, had recovered a judgment against Hodson, which became a lien on the premises in question; on which judgment, and long subsequent to the partition, that is, on the Sth of August, 1871, a writ of fieri facias was issued, and by force of which the sheriff sold and conveyed to Emson the undivided interests of Hodson in the tract. Having obtained a sheriff's deed, Emson took proceedings, under the Act " For the more easy partition of lands held by co- parceners, joint-tenants, and tenants in common," for the partition of the premises between himself and the respondent. The latter thereupon filed the bill in this suit to restrain such proceedings; on the final hearing this injunction was made perpetual. The Chief Justice. [Hon. Mercer Beasley.] In order to affirm the decree in this case it is necessary to maintain the general proposition, that after a judgment has become a lien on the un- divided share of a tenant in common in land, such tenant in common, in concert with those who share the estate with him, can make a voluntary partition that will, if fairly made, be valid with respect to the lien of such judgment. I have carefully examined the cases which have been cited in support of the proposition thus stated, and I do not find that any of them can be regarded as a precedent in its favor. The nearest approach to adjudications upon the point are those holding that by 1 See Porter v. Henderson, 203 Ala. 312; Warner v. Logue Realty Co., 107 Atl. (Del.) 449; Mantcmach v. Studt, 240 111. 464; Bayley v. Nichols, 263 111. 116, 121; Berry v. Donald, 168 Iowa 744; Ratterman v. Appcrson, 141 Ky. 821; Kirk v. Crutcher, 145 Ky. 52; Hunt v. Meeker County Co., 135 Minn. 134; Warner v. Eaton, 78 N. H. 515. Compare Hall v. Collier, 146 Ga. 815; McKclvey v. McKclvey, 83 Kan. 246; Husband v. Aldrich, 135 Mass. 317; Scott v. Guernsey, 48 N. Y. 106; Daniel v. Dixon, 163 N. C. 137; St. Martin v. Hcndcrshott, 82 Oreg. 58. Reimbursement of one co-tenant by another for money spent in the discharge of oblifiations affecting the land is allowed in partition. Win.'^ett V. Win.'^ett, 203 Ala. 373; Willmon v. Koyer, 168 Cal. 369; Price v. Ewell, 169 Iowa 206; Hogan v. McMahon, 115 Md. 195; Grogan v. Groqan, 177 S. W. (Mo.) 649. Compare Maupin v. Gaines, 125 Ark. 181 ; Xott v. Gundick, ISO N. W. (Mich.) 376; Clute v. Clute, 197 N. Y. 439. 464 EMSON V. POLHEMUS [CHAP. VII force of a voluntary partition made by the husband, the right of dower of the wife will be contracted to the parcel of land so set off to him. But these decisions rest, as it seems to me, on grounds peculiar to themselves. In this particular it is not easy to sepa- rate the interests of tlu; husband and wife, they are so nearly identical. If the husband acquires by the partition an advantageous allotment, both he and his wife are equally gainers, and thpre is a parity of loss to each, if the share set off to the husband be less than his due. The right of the wife is inchoate and contingent, so that the husband cannot prejudice, either from his folly or his fraud, her interest, without, to a greater degree, sacrificing his own. It is not to be wondered at, therefore, that courts have maintained that the act of the husbaiid, in taking to himself his share of un- divided land, shall bind the wife so as to attach her dower exclu- sively to the part so taken. The right of partition is paramount to the right to dower; and when the husband settles the extent of his own right, there seems nothing inconsistent with principle or justice in permitting him to settle, by the same act, the extent of the right of his wife. The judgment, therefore, in Totten v. Stuyvesant, 3 Edw. Ch. 500, which maintains this doctrine, is, I think, founded on correct principles. But I also think that it was held with equal propriety, in Banh v. Hanna, 6 Ind. 20, that where a husband, being a co-tenant, conveyed his estate by a deed in which the wife did not join, and the grantee, with the other co- tenants, made a voluntary partition, such distribution of the land did not bind the wife after the death of her husband. But the relation of debtor and creditor is not, in a matter of this kind, to be likened to that of husband and wife, for while the in- terests of the latter are concurrent, those of the former are adverse; and to give to the debtor the status of the husband in this respect, so that he can affect his creditors, would be both unscientific and impolitic. A creditor by his judgment, and a mortgagee by his deed, gets a lien on an undivided interest in the land of his debtor, which gives him a fixed and immediate interest, and which is in all respects paramount, as far as it extends, to the right of the debtor in the property. It is obviously undeniable that these lienholders will be materially affected by the allotment of the particular part of such property to which their lien is to be affixed by the law. If the ascertainment of such part be made by an appeal to the judicial power, such creditors have satisfactory guarantees that the division of the land will be fair and just; and hence the propriety of the provision of the Statute of this State, that if, at the time of making partition, a lien exists " upon the undivided estate of any owner, by judgment, decree, mortgage or otherwise, such lien shall there- after be a lien only on the share assigned or allotted to such owner." Rev. p. 804, § 36. And it should be remarked, in passing, that EMSON V. POLHEMUS 465 the presence in the Statute of a direction of this kind, appears to intimate that an express statutory declaration was necessary to affect the claims of the lienholders, even by a judicial division of the land among the owners. And the question, therefore, is forcibly presented, why should this same force be imparted to the self -directed act of the debtor? In such case what assurance has the creditor that his rights will be adequately protected? The general rule is, as was said in Agar v. Fairfax, 17 Ves. 543, that partition never affects the rights of third parties; and the more I have reflected on this subject, the less I have seen in favor of the proposal to affect the mortgagee or judgment creditor by the volun- tary partition of the debtor. I can yield no force at all to the sug- gestion that " the fact that the parties to the partition may be compelled to partition by legal proceedings, is a sufficient ground for upholding such a voluntary partition as would have been made at law." Such a rule, and the reasoning that supports it, would validate a partition, if a fair one, which should be made by a single tenant in common as against his co-tenants. Nor can I perceive why, because an infant to a certain extent, and retaining a qualified power when of age of repudiating the act, may bind his own inter- est by joining in a partition, a tenant in common should be permitted by his act, not only to affect his own interest, but likewise the in- terest of his non-assenting creditors. The terms of these several propositions appear to my mind to have nothing in common, and consequently the legitimate deduction that may be made from the one is no warrant for drawing a similar conclusion from the other. The principal argument, however, which is urged to uphold the power of the debtor to make a partition by his private action that will be obligatory on his creditor who holds a lien on the land is, that if the partition thus made, is not fair, it can be set aside. But this contention will, upon examination, be found to be desti- tute of all real force. It substitutes a remedy for a wrong com- mitted, in the place of a remedy against the commission of such wrong. The safeguard against an unfair separation of the rights of the co-tenants which in a judicial procedure is provided, is the substitution of the judgment of discreet and unprejudiced men, instead of the notions of the owners of the property. Tlie proposed rule would take away from the creditor this safeguard, and in lieu of it place in his hands the cumbersome privilege of overhauling, if he can show unfairness, the act of the co-tenants. All persons will see that by such substitution, the creditor is placed at dis- advantage, and has, in reality, lost a valuable right. The fact is, the creditor should have both rights, viz. : the right to a partition by unprejudiced persons, and the right to litigate an unfair parti- tion, even if made by such persons. But the contention in question deprives him of the former of such rights, and gives him no equiva- lent. 466 EMSON V. POLHEMUS [CHAP. VII Tliere is a furtlicr objection of magnitude. The rule proposed would leave the lienholder subject to the caprice or folly of his debtor in the act of agreeing to i)artition. When a tenant in common is competent to contract, his agreements with his co-tenants respect- ing the partition of his land are as binding upon him as are his contracts on any other subject. In the absence of fraud, an un- equal partition assented to by such tenant is not, in legal estimation, an unfair one that will be set aside. If, by the exercise of a superior judgment, certain of the tenants in common gain an advantage, the proceeding, on that account, is not invalid. " If coparceners, joint-tenants, or tenants in common, seised in fee simple, make partition, it is good forever, though the value of the different shares taken in severalty be unequal." Such is the rule as propounded by Allnatt, p. 30. The consequence is, that the lienholder, if the rule contended for is to prevail, will, in place of the discretion of men selected judicially, be thrown on the judgment of the debtor, and will be bound by the exercise of such judgment, in the absence of actual fraud, whether such debtor be a frivolous person or a man of sense. In the absence of controlling authority it is not conceived why the judgment creditor should be placed in a position so unfavorable. There are many other objections which, on reflection, will present themselves. A partition would often be of a kind which, while it would be perfectly fair and just between the parties, and which, therefore, could not consistently with established rules be set aside, yet would be quite ruinous to the interests of the creditor. For example, in a case where the co-tenants agree to divide between themselves the rooms of a house: such distribution is entirely legal, and if the power to make a voluntary partition exists at all, could not be impeached; and yet such an interest, regarded as a salable article under an execution, might be of little value. Conceding to the judgment debtor the capacity to make voluntary partition, what is to be done with arrangements of this nature? It is obvious they would be valid in law, and they would have to be sustained against the judgment creditor or mortgagee. So, I think, this power of partition, if it existed, would often be turned to purposes of fraud and vexation. Suppose a creditor has advertised for sale, by force of his judgment and execution, the undivided interest of his debtor in certain lands, and on the eve of such sale he should ascertain that his debtor has made a division of such lands with the co-tenants, which he deems unfair — what is his remedy? Certainly a most oppressive and inefficient one. All that he could do would be to stop his proceedings under his execu- tion, and file his bill in equity to test the fairness of such partition. All persons can see that such a remedy would not often be resorted to unless where the unfairness was very gross and the consequent loss to the creditor of magnitude. By such a practice ordinary MARKS V. SEWALL 467 frauds could be perpetrated with absolute impunity. I have little doubt that if it Avere known that debtors have the power which is claimed by the respondents, that these partitions, unfair upon their very face, would oftentimes be made in order to procure a virtual stay of execution, by driving creditors, who were about selling under their judgments, into a court of equity to obtain a redivision of the property before exposing it for sale. All these evils and iniquities will be avoided by holding that the debtor, after mortgage or judgment, cannot make a voluntary par- tition which will bind such lienholders. Such a doctrine imposes no hardship on the debtor and his co-tenants. If they desire a separation of their interests they can pursue the legal formulary; that method is simple, expeditious, and inexpensive, and by its use the interest of all parties, those of mortgagees and judgment creditors, will be protected. It seems to me of importance to establish this as the legal course of practice in this State; and I shall, consequently, vote to reverse the decree in the present case.^ For reversal — Beasley, C. J., Dalrimple, Depue, Scudder, Van Syckel, Woodhull, Lathrop — 7. For affirmance — Dixon, Knapp, Clement, Lilly — 4. MAEKS V. SEWALL AXD OTHEKS 120 Mass. 174. 1876. Appeal by David L. Marks from the decree of the Probate Court accepting the report of the commissioners appointed to make parti- tion of the real estate of Moses B. Sewall, deceased, and confirming and establishing the partition. At the hearing before Morton, J., it appeared that Moses B. Sewall died in March, 3 872, seised of the following among other parcels of real estate: A lot of vacant land on High Street, Boston, containing 4875 square feet valued at $97,500, and a lot of land with buildings thereon on Monument Avenue, Charlestown, containing 3177 square feet, valued at $12,500. 1 And see Simmons v. Gordon, 98 Miss. 316. Contra. Williamn College v. Mallett, 12 Me. 398; Bavington v. Clarke, 2 Pen. & W. (Pa.) 115; Long's Appeal, 77 Pa. 151; Port v. Parfit, 4 Wash. 369. Sec Staples v. Bradley. 23 Conn. 167; Manley v. Petlee, 38 111. 128; Torrey v. Cook, 116 Mass. 163. ^ Compare cases on compulsory partition. Beits v. \yard. 196 Ala. 248, 257 (statute); Loomis v. Riley, 24 111. 307; IIawe.-< v. Na.wn, HI Me. 193 (.statute); Thrmton v. Minke, 32 Md. 571. 574; Colton v. Smith, 11 Pick. (Mass.) 311; Hunt v. Meeker County Co., 135 Minn. 134; Jack.^on v. Pierce, 10 Johns. (N. Y.) 415; Hanvood v. Kirby, 1 Paige (N. Y.) 469; Ukase Inv. Co. v. Smith, 92 Oreg. 337; Wright v. Strothcr, 76 Va. 857; Sinclair v. Jatms, [1894] 3 Ch. 554. 468 MARKS V. SEWALL [CHAP. VII Sewall left as his heirs four daughters, Mary F. Wales, wife of T. C. Wales, Annie L. Sewall, Linnie P. Sewall and Lilla M. Sewall, and two sons, Charles H. Sewall and George P. Sewall. Charles- town became a part of Boston, by annexation, on January 1, 1874. Charles H. Sewall, on February 1, 1873, mortgaged to David L. Marks an undivided sixth part of the estate on High Street, Boston, the same being described by metes and bounds, as security for the payment of his note for $10,000, payable in five years from date, with interest quarterly, at the rate of seven per cent, per annum, and on the same date Marks executed an instrument recorded with the mortgage, wherein he recited the mortgage and declared that the note and mortgage were held by him in trust that Charles H. Sewall should pay him for the support and maintenance of Ellen M. Sewall, wife of Charles H., and daughter of said Marks, and for the support and maintenance of the infant daughter of Charles H. and Ellen M. Sewall, during their lives or the life of either of them, the sum of $700 per annum, in quarterly payments, and to secure to Mrs. Sewall the care and custody of their child. On April 22, 1874, the Probate Court appointed commissioners to make partition of all the real estate of Moses B. Sewall, which any party interested should require to have included in the partition among the heirs aforesaid, and they reported as follows : " Whereas the said lot of land, situated on High Street in the city of Boston, is of greater value than the share of either party, and cannot in our judgment be divided without damage to the owners, and whereas George P. Sewall, Mary F. Wales, Annie L. Sewall, Linnie P. Sewall and Lilla M. Sewall are willing to have said lot of land set off to them together, and to pay to Charles H. Sewall such sum of money as may be awarded : we have set off and assigned to the said George P. Sewall, Mary F. Wales, Annie L. Sewall, Linnie P. Sewall and Lilla M, Sewall, the said lot of land situated on High Street, in said city of Boston, to be held by them in common, but separate from the share of Charles H. Sewall, and we have awarded that they shall pay to the said Charles H. Sewall the sum of $5833.33 to make the parti- tion just and equal. And we have set off and assigned to the said Charles H. Sewall said lot of land, situated in that part of said city of Boston which was recently the city of Charlestown, Charles H. Sewall to receive from the said George P. Sewall, Mary F. Wales, Annie L. Sewall, Linnie P. Sewall and Lilla M. Sewall, the sum of $5833.33, to make the partition just and equal." Their report was accepted, November 11, 1874, and the partition confirmed and estab- lished. From this decree David L. Marks appealed, and assigned the following reasons : " Because the decree did not set off to said Marks his interest in the High Street estate, or award payment in money therefor; and because the money awarded by the commissioners had not been paid to said Marks, he being entitled thereto, or secured to his satisfaction, or to the satisfaction of the Probate Court." MARKS V. SEW ALL 469 It appeared that the heirs to whom the High Street estate was set off were able to pay the value of Charles H. Sewall's interest therein, in case partition of that estate by itself should be made, the entire estate set off to them, and it should be awarded that the value of Charles H. Sewall's interest should be paid in money. Further it appeared that Charles H. Sewall had refused and still refused to agree to the substitution of any other security on the note given by him to Marks. Upon these facts the judge afhrmed the decree of the Probate Court, and upon request of Marks, reported the case for the con- sideration of the full court. Devens, J. It is conceded, as a general proposition, that a tenant in common, as against his co-tenants, cannot convey his interest in a specified parcel of the lands held in common. Adam v. Briggs Iron Co., 7 Cush. 361, and authorities cited. It is, however, argued that, as Avhen the conveyance was made by Charles H. Sewall, it purported to convey his interest in the High Street estate, which was all the land then lying in the county of Suffolk, and that as it was then in the power of the judge of probate to have issued a separate warrant and caused a separate partition to have been made of the lands lying in that county, (Gen. Sts. c. 136, § 50.) the conveyance may here be treated as valid against the co-tenants. But it was in the power of the Probate Court then, by one commission, to have made partition of all the real estate lying within the state, (Gen. Sts. c. 136, § 48,) and at the time when the coimnission was actually issued, both parcels which were to be divided had, by the annexation of territory of Charlestown, become a part of the county of Suffolk. The mere fact that, but for the occurrence of this latter contingency, the Probate Court could have divided the lands of the deceased by separate commissions, does not entitle the appellant to claim that he would then have had, or that he now has, a right to have the High Street estate separately divided. If, as against the co-tenants, the mortgage made by Charles H. Sewall is invalid, the court should not refuse to confirm the decree for partition. While the court may, for sufficient reason, set aside the return of the commissioners and recommit the case, (Gen. Sts. c. 136, § 74,) yet the reason for so doing should be because there is some objection to the return as made, and not because one might be made which would facilitate other proceedings before another tri- bunal by the appellant against Sewall. If, treating the mortgage as invalid, the partition is a fair and just one, it should be confirmed. Nor, if the partition is thus confirmed, is the appellant entitled to have the sum of $5833.33 (which is the amount in money to be paid to Charles H. Sewall) first paid or secured to him. It is a part indeed of the proceeds of that portion of his inheritance which Sewall assumed to convey to the appellant ; but if the mortgage be invalid as to them, the co-tenants have the right here to have the 470 MARKS V. SEWALL [CHAP. VII partition confirmed witlxovit regard to any relations wliicli may exist between Sewall and the appellant. Decree affirmed.^ "Joint Ownership in Peksonal Pkoperty. — Personal property may be held jointly or in common. There is of course no interest corresponding to coparcenary in real estate. A conveyance of personal property to two or more simply makes them joint owners; but there are special rules as to partners and the owners of ships. The modern Statutes which declare that a conveyance to two or more shall presumptively be taken to create a ten- ancy in common, have sometimes no application to personal property. " Each joint owner or owner in common of a chattel personal has a right to the possession, and no action of trespass or trover lies against him at the suit of his co-owner for taking or keeping possession of it. [Hamby v. Wall, 48 Ark. 135; Doyle v. Bush, 86 S. E. (N. C.) 165.] " But I. It seems that trespass will lie by an o\vner in common of a chattel personal against his co-tenant for the destruction of the chattel. See Co. Lit. 200 a. " II. Trover lies at the suit of an owner in common of a chattel per- sonal against his co-owner for so dealing with the chattel as to render any future use of the chattel by the plaintiff impossible. See, for example, Needham v. Hill, 127 Mass. 133 (1879). The cases are collected Freem. Co-ten. §§ 306, 307, 312-318. [Hcnnes v. Hehard, 169 Mich. 670.1 " III. Whether a sale of a chattel personal by an owner in common, who represents himself as the sole owner and professes to pass the title to the whole chattel, be a conversion, is a question which has been much mooted. The weight of authority in the United States is in the affirmative. See the cases collected in Freem. §§ 308-311. [Johnson v. McFry, 68 So. (Ala.) 716; Howton V. Mathias, 73 So. (Ala.) 92; Merrill v, Mason, 159 Mo. App. 605; Goodrich v. Chappell,j^O Vt. 263.1 " IV. If there are owners in common of chattels of the same quality and readily divisible, such as grain, it is commonly held in America that one of them may claim the right to take his share, and if he is refused, may main- tain trover, — see 2 Kent Com. (12th ed.) 365, note 1; Freem. § 252; Lob- dell V. Stowell, 51 N. Y. 70 (1872), — or even replevin. Young v. Miles, 20 Wis. 615 (1866) ; Piazzek v. White, 23 Kans. 621 (1880). [Halsey v. Simmons, 85 Oreg. 324 ; 37 L. R. A. n. s. 267 note.] " There is no mode of obtaining partition of chattels personal at law, unless replevin of grain, &c. (see IV. supra), be so considered. A bill in equity for partition of personal chattels is allowed at the present day in many of the States; the fir.st time such a bill was sustained seems to have been Smith v. Smith, 4 Rand. 95 (1826). See Freem. § 426." [Muldrow v. Mixon, 89 S. C. 551; 27 L. R. A. n. s. 618 note.]— 6 Gray, Cas. on Prop., 2d ed., p. 580. [The citations in brackets are by the editor.] 1 So Stewart v. Allegheny National Bank, 101 Pa. 342. But see Whitton V. Whitton, 38 N. H. 127; Green v. Arnold, 11 R. I. 364. Compare Huffman V. Darling, 153 Ind. 22; King v. King, 182 Ky. 665; Jordan v. Faulkner, 168 N. C. 466; Holley v. White, 172 N. C. 77; Kennedy v. Boykin, 35 S. C. 61; Ea^ly v. Easly, 78 Wash. 505; Helmick v. Kraft, 84 W. Va. 159; note, ante, p. 427. CHAPTEE YIII CREATION OF EASEMENTS AND PROFITS i SECTION I BY IMPLICATION SAUNDEYS r. OLIFF Moore 467. 1597. Trespass. The defendant prescribes for connnoii, and counts that one Verny, Knight, was seised in fee of the messuage and place where &c. and that he granted the messuage with all the commons appurte- nant; and avers that all the tenants of the messuage have used to have common in the place where &c. And it is adjudged against him who so prescribed, because there appears to have been unity of possession of the messuage and of the Lower Cow Pasture, (being the place where &c.,) in Verny, in which case the common is extinct, and then cannot pass by words of common appurtenant and regard- ing the messuage.- But " all commons usually occupied with the messuage " would have passed such common as the first was. NICHOLAS V. CHAMBEELAIN Cro. Jac. 121. 1606. Trespass. It was held by all the court upon demurrer. That if one erect a house, and build a conduit thereto in another part of his land, and convey water by pi])es to the house, and afterward sell the house with the appurtenances, excepting the land, or sell the laud to another, reserving to himself the house, the conduit and pipes pass with the house; because it is necessary, et quasi appendant thereto; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require. So it is, if a lessee for years of a house and land erect a conduit upon the land, and, after the term determines, the lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one, and the land to another, the vendee shall have the conduit nnd the pipes, and liberty to amend them. 1 See Warrrn, Cas. on Prop., pp. 751-787. 2 But spp Thnmns v. Owen, 20 Q. B. D. 225, 231-232; Hansford v. J ago, [1921] 1 Ch. 322-331. 471 472 PACKER V. WELSTED [CHAP. VIII But by PoPHAM, Chief Justice, if the lessee erect such a conduit, and afterward the lessor, during the lease, sell the house to one, and the land wherein the conduit is to another, and after the lease de- termines; he who hath the land wherein the conduit is, may disturb the other in the using thereof, and may break it; because it was not erected by one who had a permanent estate or inheritance, nor made one by the occupation and usage of them together by him who had the inheritance. So it is, if a* disseisor of an house and land erect such a conduit, and the disseisee re-enter, not taking conusance of any such erection, nor using it, but presently after his re-entry sells the house to one, and the land to another; he who hath the land, is not compellable to suffer the other to enjoy the conduit. — But in the principal case, by reason of the mispleading therein, there was not any judgment given. CLAEK V. COGGE Cro. Jac. 170. 1607. Trespass. Upon demurrer the case was. The one sells land, and afterwards the vendee, by reason thereof, claims a way over part of the plaintiff's land, there being no other convenient way adjoining: and, Whether this were a lawful claim? was the question. And it was resolved without argument, that the way remained, and that he might well justify the using thereof, because it is a thing of necessity ; for otherwise he could not have any profit of his land : et e converso, if a man hath four closes lying together, and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold, although he reserved not any way, yet he shall have it, as reserved unto him by the law; and there is not any extinguishment of a way by having both lands. Where- fore it was adjudged accordingly for the defendant.^ PACKEE V. WELSTED 2 Sid. 39, 111. 1658. Special verdict. There are three parcels of land, and the necessary and private way is out of the first parcel to the second, and out of the first two parcels to the third parcel. J. S. purchases all these parcels, and then aliens the first two of these parcels to J. 'N., and the ques- tion was, if he shall have a way over the first two parcels to his third parcel. The jurors also found that the alienation was by feoff- 1 See Howton v. Frearson, 8 T. R. 50; 1 Wms. Saunders 323, note 6. SECT. l] PALMER V. FLETCHER 473 merit, and that there was no other way to come to the land not aliened but by the other land. Glyn, C. J. If one has a highway on his land and makes a feoff- ment of the land, yet can he, as subject of the King, use the way. But our case is of a private way, which, as the case is, cannot be called a way properly, because it was to be taken on his own land. But the jurors having found it to be of necessity, it seems to me that the way remains, for it is not only a private inconvenience, but it is also to the prejudice of the public weal, that land should lie fresh and unoccupied; and so has been the opinion of the Lord Rolles, as I hear on the circuit at Winchester. And the defendant can take a convenient way without the leave of the plaintiff and the law can then adjudge if it is convenient and sufficient [vel pluis ou nemy] and by all the court judgment was given for the defendant that the unity had not destroyed the way, but that the way continues. PALMER V. FLETCHER 1 Lev. 122. 1663. Case was brought for stopping of his lights. The case was, A man erected a house on his own lands, and after sells the house to one, and the lands adjoining to another, who by putting piles of timber on the land, obstructed the lights of the house : And 'twas resolved. That although it be a new messuage, yet no person who claims the land by purchase under the builder, can obstruct the lights any more than the builder himself could, who cannot derogate from his own grant, by Twysden and Wyndham, Justices, Hyde being absent, and Kelynge doubting. For the lights are a neces- sary and essential part of the house. And Kelyn(;e said. Suppose the land had been sold first, and the house after, the vendee of the land might stop the lights. Twysden to the contrary said, Wliether the land be sold first or afterward, the vendee of the land cannot stop the lights of the house in the hands of the vendor or his as- signees; and cited a case to be so adjudged; but all agreed, that a stranger having lands adjoining to a messuage newly erected, may stop the lights; for the building of any man on his lands, cannot hinder his neighbor from doing what he will with his own lands; otherwise if the messuage be ancient, so that he has gained a right in the lights by prescription. And afterwards in Mich. 16 Car. 2, B. R. a like judgment was given between the same parties, for erect- ing a building on another part of the lands jnirchased, whereby the lights of another new messuage were obstructed.* * s. c. sub nom. Palmer v. Fleshees, 1 Sid. 167. See Compton v. Richard,-^, 1 Price 27; Righy v. Bennett, 21 Ch. D. 559; Birmingham, etc. Banking Co., v. Ross. 38 Ch. D. 295. 474 PINNINGTON V. GALLAND [CHAP. VIII PINNINGTON V. GALLAI^D 9 Ex. 1. 1853. Martin, B.'^ This is a special case, wliicli was argued before us during the last term; and the question is, whether the plaintiff, aa occupier of two closes called the Rye Holme closes, is entitled to a right of way over certain lands of the defendant. The material circumstances are these: In the year 1839 a prop- perty consisting of five closes belonged to a Mr. Dickinson. Two of them were the Rye Holme closes, and they were separated by two of the others from the only available highway, the Town-street of Sutton-upon-Trent. From the year 1823 the road over which the plaintiff now claims the right of way was that which was used by Mr. Dickinson's tenant for the occupation of the Rye Holme closes. From a plan, which forms part of the case, the road appears to be the shortest and most direct access from the highway to the closes; and it having been used for so many years by the tenant who occu- pied the entire property, we think we may safely conclude that it was, and is, the most convenient road. In 1839 the property was sold by Mr. Dickinson in three lots. A Mr. Moss purchased the Rye Holme closes, a Mr. Newboult pur- chased one of the other closes, and a Mr. Dearie purchased the re- mainder of the property, which includes that now belonging to the defendant, and over which the way in question goes. The deeds of conveyance to the three purchasers, although bearing different dates, were all executed on the same day, the 8th of April, 1840, and it cannot now be ascertained in what order of priority they were executed. No special grant or reservation of any particular way is contained in any of them; but in the conveyance to Mr. Moss, whose tenant the plaintiff is, there is comprised the usual words, " together with {infer alia) all ways, roads, paths, passages, rights, easements, advantages, and appurtenances whatsoever to the said closes belong- ing, or in any way appertaining." Mr. Dearie executed the deed of conveyance to him. For several years after the execution of the conveyances, the occu- pier of the Rye Holme closes continued to use the road in question; but in 1843 the defendant, who had purchased from Mr. Dearie part of the land conveyed thus by Mr. Dickinson, and over which the Avay in question goes, disputed the plaintiff's right to use it. Attempts were made for arrangement, which failed, and we are now required to decide the point ; and we are of opinion that the plaintiff, as occu- pier of the Rye Holme closes, is entitled to the right of way claimed. It is impossible to ascertain the priority of the execution of the two conveyances (that to the third purchaser may be put out of con- sideration), and the plaintiff, having to establish his right, is bound ^ Only the opinion is here given. SECT. l] PINNINGTON V. GALLAND 475 to show that, whichever was the first executed, he nevertheless is entitled to the right of way. First, assume that the conveyance to Mr. Moss was executed he- fore that of Mr. Dearie. In this ease there would clearly be the right of way. It is the very case put by Mr. Serjt. Williams in his note to Pomfret v. Ricroft, 1 "Wms. Saund. 323, viz., " where a man hav- ing a close surrounded with his land, grants the close to another in fee^ for life, or for years, the grantee shall have a way over the grantor's land, as incident to the grant, for without it he cannot have any benefit from the grant," and the way would be the most direct and convenient, which we think we may properly assume the one in question in the present case to be. This is founded upon the legal maxim, " Quando aliquis aliquid concedit, concedere videtur et id sine quo res concessa uti non potest," which, thougli it be clearly bad Latin, is, we think, good law. Secondly, assume that the conveyance to Mr. Dearie was executed the first. In this case the Rye Holme closes were for a short period of time the property of Mr. Dickinson, after the property in the land conveyed to Mr. Dearie had passed out of him. There is no doubt, apparently, a greater difficulty in holding the right of way to exist in this case than in the other; but according to the same very great authority, the law is the same, for the note proceeds thus : " So it is when he grants the land and reserves the close to himself ; " and he cites several authorites which fully bear him out : ClarJc v. Cogge, Cro. Jac. 170; Staple v. Heydon, 6 Mod. 1; Chichester v, Lethhridge, "Willes, 72, note. It no doubt seems extraordinary that a man should hav<3 a right which certainly derogates from his own grant; but the law is distinctly laid down to be so, and probably for the reason given in Dutton v. Taylor, 2 Lutw. 1487, that it was for the public good, as otherwise the close surrounded would not be capable of cultivation. According to this law, therefore, the right of Avay would accrue to Mr. Dickinson upon the execution of the conveyance to Mr. Dearie, and it would clearly pass to Mr. Moss under his conveyance, for it would be a way appurtenant to the Eye Holme closes, and would pass under the words "all ways to the closes belonging or appertain- ing," and, indeed, probably without them. The plaintiff has vested in him, as Mr. Moss's tenant, all his rights of way; and, for the above reason, we think that he is entitled to the judgment of the court. There is a statement in the case respecting another road described in the plan as from C to D, which the defendant contends was the plaintiff's proper way. But it is perfectly clear, that, whatever may be the rights of the occupiers or owners of the two closes further to the east, called Maples and Catliffe closes, and which were sold and conveyed by Mr. Dickinson before the sales to Mr. Moss and Mr. Dearie, Mr. Moss or the plaintiff his tenant, upon the statement in the present case, has no right to the use of it; and, except by one or 47G HILDRETH V. GOOGINS [CHAP. VIII other of the roads, the case states that the plaintiff could not get to the Rye Holme closes without being a trespasser upon land other than Mr. Dickinson's. Judgment for the plaintiff.^ HILDRETH v. GOOGINS 91 Me. 227. 1898. On motion and exceptions by defendant. The case appears in the opinion, Strout, J. The controversy in this case, is whether there is a right of way from the lot of land occupied by the defendant at Old Orchard as tenant of the heirs of 'William Emery, over and across the plaintiff's land to the street, as appurtenant to defendant's lot. At the trial below the right of way was claimed first by deed, second by prescription, and third by necessity. The evidence failed to sus- tain either of the first two claims and they are abandoned here. But it is strenuously contended that a way of necessity exists from defend- ant's lot, across that of plaintiff. Lawrence Barnes on June 15, 1871, owned in one tract the land, part of which is now owned by the plaintiff, and part by the heirs of William Emery. On that day he conveyed to one Seavey that part of the land now occupied by defendant. William Emery derived 1 See Ellis v. Bliie Mt. Forest Assn, 69 N. H. 385; Valley Falls Co. v. Dolan, 9 R. I. 489; Dacics v. Sear, L. R. 7 Eq. 427; 8 L. R. A. n. s. 327 note. As to the location of a way of necessity, see Ritchey v. Welsh, 149 Ind. 214; Herrin v. Sieben, 46 Mont. 226; Fritz v. Tompkins, 168 N. Y. 524, 532. A right of a way of necessity does not arise when the land is acquired by escheat, Proctor v. Hodgson, 10 Ex. 824. Nor when it is taken by con- demnation proceedings, Banks v. School Directors, 194 111. 247; but see ^ Cleveland Ry. Co. v. Smith, 177 Ind. 524. On creation or reservation of way of necessity when land is taken on execution, see Damron v. Damron, 119 Ky. 806; Fernam v. Wead, 2 Mass. 203; Rmsell v. Jackson, 2 Pick. (Mass.) 574; -Schmidt v. Quinn, 136 Mass. 575. Compare Assets Inv. Co. v. Hollingshcad, 200 Fed. Rep. 551; Bean V. Bean, 163 Mich. 379; Kiefjer v. Imhoff, 20 Pa. 438; Proud joot v. Saffle, 62 W. Va. 51; 12 L. R. A. n. s. 482 note. On grant by the government, see United States v. Rindge, 208 F. R. 611; Herrin v. Sieben, 46 Mont. 226; Fame v. Coal Creek Co., 90 Tenn. 619. A grantor is not debarred from having a way of necessity because his <^ deed has a covenant for warranty. Jay v. Michael, 92 Md. 198; Brigham V. Smith, 4 Gray (Mass.) 297; A^. Y. & N. E. R. R. v. Railroad Commis- sioners, 162 Mass. 81. Compare Reed v. Blum, 215 Mich. 247; Bennett v. Booth, 70 W. Va. 264. As to what evidence is admissible to rebut the implication of a way of necessity, see Greenwood v. West, 171 Ala. 463; Seeley v. Bishop, 19 Conn. 128; Leeb7is v. Boston, 21 Ky. Law Rep. 411; Doten v. Bartlett, 107 Me. 351; Orpin v. Morrison, 230 Mass. 529; Ewert v. Burtis, 12 Atl. (N. J.) 893; Bascom v. Cannon, 158 Pa. 225. SECT. l] HILDRETH V. GOOGINS 477 title under tliis deed tlirougli mesne conveyances. Barnes' deed to Seavey did not contain any grant of a right of way across Barnes' remaining land. Plaintiff derives his title through deed from Barnes to Francis Milliken, dated October 16, 1879, and mesne conveyances. The land owned by the Emery heirs is bounded on one side by the ocean, ^o access to it from the street can be had, except by the ocean or crossing land of other owners. Under these circumstances it is claimed that the conveyance by Barnes to Seavey implied a grant of a way over and across the plaintiff's lot, then owned by Barnes, as appurtenant to defendant's lot. " Implied grants of this character are looked upon with jealousy, construed with strictness, and are not favored, except in cases of strict necessity, and not from mere convenience." Kingsley v. Land Improvement Co., 86 Maine, 280. In that case it was held by this court, that as free access to the land over public navigable waters existed, a way by necessity over the grantor's land could not be implied. The same rule applies here. Defendant's land borders on the ocean, a public highway, over which access to her land from the street can be had. It may not be as convenient as a passage by land, but necessity and not convenience is the test. Warren v. Blake, 54 Maine, 276; DoJUjf v. B. & M. R. R., 68 Maine, 176; Stevens v. Orr, 69 Maine, 324. There is no evidence in the case that the water way is unavailable. The court instructed the jury that the ocean was a public highway, and to a question by a juror, " whether the ocean was a public highway, if it was not available, and whether it was for the jury to decide whether it is available in the present ease," the court replied, " that if there was any evidence as to avail- ability it was for them to decide; but if there was.no evidence, they must assume that it was available." They were further instructed " that cases must be decided upon the evidence introduced, and not with reference to any individual knowledge that any juror may have, and I give now the general instruction that, nothing appearing to the contrary, the ocean is a highway." Exception is taken to these instructions. But they are so clearly in consonance with well-established principles, and the decisions of this court, that it is unnecessary to discuss them. Kingsley v. La)id lm,proveinent Co., supra; Rolfe v. Rumford, 66 Maine, 564. We perceive no reason for disturbing the verdict, upon the motion. Motion and exceptions overruled.^ 1 " The instruction on this subject was, ' that the deed under which the plaintiff claimed conveyed whatever was necessary to the beneficial enjoy- ment of the estate granted, and in the power of the grantor to convey; that it was not enough for the plaintiff to prove that the way claimed would be convenient and beneficial, but she must also prove that no other way could be conveniently made from the highway to her intestate's house, with- out unreasonable labor and expense ; that unreasonable labor and expense means excessive and disproportionate to the value of the property pur- 478 RICHARDS V. ROSE [CHAP. VIII KICHARDS V. ROSE 9 Ex. 218. 1853. The first count of the declaration stated, that the plaintiff was the owner of a certain messuage and dwelling-house, and Avas entitled to have the same supported by certain land and premises of the de- fendant adjoining thereto; yet that the defendant wrongfully and unlaAvfully dug, excavated, and made a drain-hole and tunnel, and removed and took away part of the said land of the defendant, and thereby deprived the said messuage and dwelling-house of the plain- tiff of the said support to which she was lawfully entitled, whereby the walls, and parts of the said house cracked, gave way, and were damaged. The second count charged the defendant with having negligently, &e., dug the drain, whereby the walls of the said dwelling-house were undermined, cracked, and damaged. The defendant pleaded, first, Not guilty to the whole declaration; and secondly, to the first count, that the plaintiff Avas not entitled to haA^e her said messuage or dAvelling-house supported by the said land and premises of the defendant adjoining thereto. Upon Avhich pleas issues were joined. At the trial, before PoJIock, C. B., at the Middlesex Sittings after last term, it appeared that the plaintiff's and defendant's houses ad- chased; and that it was a question for the jury, on all the evidence, Avhether such new way could be made without such unreasonable labor and expense.' " The court are of opinion that this instruction was correct. The word ' necessaiy ' cannot reasonably be held to be limited to absolute physical necessity. If it were so, the way in question would not pass with the land, if another way could be made by any amount of labor and expense, or by any possibility. If, for example, the property conveyed were worth but one thousand dollars, it would follow from this construction that the plaintiff's intestate Avould not haA-e the right of way over the triangular piece as appurtenant to the land, provided he could have made another way at an expense of one hundred thousand dollars. If the word ' necessary ' is to have a more liberal and reasonable interpretation than this, the one adopted by the judge must be regarded as correct. Its effect was, to require proof that the way over this triangular piece was reasonably necessar>' to the enjoyment of the dwelling-house granted. See Ewart v. Cochrane, 7 Jur. N. S. 925; Leonard v. Leonard, 2 Allen, 543; Carhrey v. Willis, 7 Allen, 364. "As the facts were properly submitted to the jury, and evidence was ad- missible as to the consideration paid for the land and the cost of making a way, it was proper that the jurA^ should compare the facts together and make such inferences as they should think reasonable. The instruction on this point was correct." — Pet tingill v. Porter, 8 All. (Mass.) 1. 6, 7. And see Greenwood v West, 171 Ala. 463; Brookshire v. Harp, 186 Ky. 217, 222; Watson V. French, 112 Me. 371; Nichols v. Luce, 24 Pick. (Mass.) 102; Cornell-Andrews Co. v. Boston & P. R. Co., 202 Mass. 585; Hart v. Deering, 222 Mass. 407; Palmer v. Palmer, 150 N. Y. 139; Crotty v. New River Coal Co., 72 W. Va. 68; Miller v. Skaggs, 79 W. Va. 645. SECT. l] RICHARDS V. ROSE 479 joined each other, being nunihers five and six in the same street; and that the action was brought to recover compensation for damage done to the plaintiff's house by the disturbance of its foundations. The houses had been originally the property of the same person; and in August, 1847, he demised them both to one Watmough, by separate instruments, for ninety-nine years. Watmough mortgaged them to one Brown, and he assigned his interest in the mortgage to one Halliday, who, under a power contained in the deed of mortgage, sold one of the houses to the plaintiff in July, 1849, and the other house to the defendant in the following month of September. At the time the houses were built, there was no public sewer, but the ground landlord, under the supervision of the Commissioners of Sewers, made a sewer through the public street for the convenience of the tenants; and the defendant, by the consent of the Commis- sioners, formed a drain in connection Avith the public sewer through his own house. In making this drain, the damage was occasioned for which the present action was brought. On the part of the defendant, it was objected that, under this state of circumstances, the action could not be maintained, inasmuch as the plaintiff had not established her right to the support she claimed. The Lord Chief Baron left the case to the jury, Avho found a verdict for the plaintiff with £25 damages, leave being reserved to the de- fendant to move to set that verdict aside, and to enter a verdict for him. Lush moved accordingly. The court then intimated that the learned counsel might take a rule nisi upon the latter point, on payment of costs; but this he de- clined to do. Cur. adv. vuJt. Pollock, C. B. now said — In this case Mr. Lush moved for a rule nisi to set aside the verdict found for the plaintiff' with £25 damages, and to enter a verdict for the defendant. We are all of opinion that there ought to be no rule. It seems to be clear that, where a number of houses are built upon a plot of ground, all the houses belonging to the same person, being all built together, and each obviously requiring the mutual support of its neighbors for their common protection and security, such right of mutual support equally exists, whether the owner parts first with one house, and th(>n with another, or with two together, the ownership of the latter be- ing afterwards divided, either by sale, mortgage, devise, or by any other means. The right does not depend upon the determination of the fact whether the houses are parted with at one or at separate times. That fact cannot aftVct the result where the houses are originally built, depending upon each other, and requiring their mutual support. It seems to be purely a matter of common sense, that the possessors are not to be deprived of that mutual support, and that a person in possession of one of the houses shall not be ])er- mitted to say to his neighbors, " You are not entitled to the protec- 480 PYER V. CARTER [CHAP. VIII tion of my house : I will pull it down to the ground, and will let the houses upon each side of it collapse and fall into the ruins." The case of Pinnington v. (talland, 9 Ex. 1, which is a recent decision of this court, seems to involve the same principle. That, however, was in respect of a right of way, and not of a right of support. But we are all of opinion that, where houses have been erected in common by the same owner upon a plot of ground, and therefore necessarily requiring mutual support, there is, either by a presumed grant or by a presumed reservation, a right to such mutual support; so that the owner who sells one of the houses, as against himself grants such right, and on his own part also reserves the right; and consequently the same mutual dependence of one house upon its neighbors still remains. Upon the point reserved, therefore, there will be no rule. The learned counsel seems also to have objected, that the finding of the jury must have been based upon something in the nature of a compromise, inasmuch as the damages, if any, should have been much greater in amount, and consequently that the verdict requires revision. It appears, however, to us that although there are cases in which such an argument might prevail, the present case does not fall within such principle. In the case of an action on a bill of exchange, to which the defendant pleads only that the bill is forged, and the jury find a verdict for the plaintiff, with damages one farthing, thereby compromising the matter by finding that the bill is not forged, and yet giving the plaintiff nominal damages only, the court would clearly see that the verdict is inconsistent, and that the jury had failed to discharge their duty. That principle does not apply where the damages are large. And, moreover, in this case there was evidence to show that the foundation of the plaintiff's house was not very secure, and consequently there was some color for the view which the jury took of the amount of damage occa- sioned by the defendant's act. The court are of opinion that the defendant is not entitled to a rule for a new trial upon this point, except upon payment of costs; and the learned counsel has declined to accept the rule upon that condition. Rule refused.^ PYEE V. CxiRTER 1 H. & N. 916. 1857. The declaration stated, that before and at the time oi committing the grievances, &c., the plaintiff was lawfully possessed of a mes- suage and premises with the appurtenances, situate in St. Anne Street, Liverpool, and by reason thereof was entitled to a drain or 1 See Goldschmid v. Starring, 5 Mackey (D. C.) 582; Morrison v. King, 62 111. 30; Teachout v. Duff us, 141 Iowa 466; Adams v. Marshall, 138 Mass. 228; Curtiss v. Ayrault, 47 N. Y. 73; Rogers v. Sinsheimer, 50 N. Y. 646. SECT. l] PYER V. CARTER 481 sewer, and passage for water, leading from the said messuage and premises, in, through, and under certain adjoining land at Liverpool aforesaid, through which the rain and water from the plaintiff's said messuage and premises of right had flowed, and still of right ought to flow, away from the plaintiff's said messuage and premises : yet the defendant wrongfully stopped up the said drain and sewer, whereby divers large quantities of rain and water which of right ought to have flowed, and otherwise would have flowed, through the same drain, sewer and passage for water, were prevented from flow- ing from the plaintiff's said messuage and premises, and flooded, soaked into and injured the same, &c. Pleas. — First : Not guilty. Secondly : that the plaintiff Avas not entitled to the said drain, sewer, and passage for water; nor did the rain and water from the plaintiff's said messuage and premises of right flow, nor ought to flow, away from the plaintiff's said messuage and premises through the said drain, sewer and passage for water as alleged. — Issues thereon. At the trial, before BramwelJ, B., at the last Lancashire Summer Assizes, it appeared that the plaintiff and defendant were owners of adjoining houses situate in St. Anne Street, Liverpool. These houses had been formerly one house, and had belonged to a person of the name of Williams, who converted them into two houses. In July, 1853, Williams conveyed the defendant's house to him in fee. This conveyance contained no reservation of any easement. In September, 1853, Williams conveyed the plaintiff's house to him in fee. At the time of these conveyances a drain or sewer ran under the plaintiff's house and thence under the defendant's house and discharged itself into the common sewer in St. Anne Street. Water from the eaves of the defendant's house fell on the plaintiff's house, and from thence flowed down a spout into the drain on the plaintiff's premises, and so into the common sewer. The defendant blocked up the drain where it entered his house, and in consequence, whenever it rained, the plaintiff's house was flooded. The defend- ant stated that he was not aware of the drain at the time of the conveyance to him. It was proved that the plaintiff might con- struct a drain directly from his own house into the common sewer at a cost of about six pounds. It was submitted on the part of the defendant, that the plaintiff had no right to the use of the drain under the defendant's house. The learned judge directed a verdict for the plaintiff, reserving leave to the defendant to move to enter a verdict for him. Cur. adv. vult. The judgment of the court was now delivered by Watson, B. This was an action for stopping a drain that ran under both the plaintiff's and defendant's houses, taking the water from both. The cause was tried at Liverpool, before Baron Bram- 482 PYER V. CARTER [CHAP. VIII ivell, when a verdict was entered for the plaintiff, and a motion was made to enter a verdict for defendant in pursuance of leave reserved at the trial. The plaintiff's and defendant's houses adjoined each other. They had formerly been one house, and were converted into two houses by the owner of the whole property. Subsequently the defendant's house was conveyed to him, and after that conveyance the plaintiff took a conveyance of his house.. At the time of the respective con- veyances the drain ran under the plaintiff's house and then under the defendant's house, and discharged itself into the common sewer. Water from the eaves of the defendant's house fell on the plaintiff's house, and then ran into the drain on plaintiff's premises, and thence through the drain into the common sewer. The plaintiff's house was drained through this drain. It was proved that, by the ex- penditure of six pounds, the plaintiff might stop the drain and drain directly from his own land into the common server. It was not proved that the defendant, at the time of his purchase, knew of the position of the drains. Under these circumstances we are of opinion, upon reason and upon authority, that the plaintiff is entitled to our judgment. We think that the owners of the plaintiff's house are, by implied grant, entitled to have the use of this drain for the purpose of conveying the w^ater from his house, as it ^vas used at the time of the defend- ant's purchase. It seems in accordance with reason, that where the owner of two or more adjoining houses sells and conveys one of the houses to a purchaser, that such house in his hands should be entitled to the benefit of all the drains from his house, and sub- ject to all the drains then necessarily used for the enjoyment of the adjoining house, and that without express reservation or grant, inasmuch as he purchases the house such as it is. If that w^ere not so, the inconveniences and nuisances in towms would be very great. Where the owner of several adjoining houses conveyed them sepa- rately, it w^ould enable the A'endee of any one house to stop up the system of drainage made for the benefit and necessary occupation of the whole. The authorities are strong on this subject. In Nicholas v. Chamberlain, Cro. Jac. 121, it was held by all the court that, " if one erects a house and builds a conduit thereto in another part of his land, and conveys water by pipes to his house, and after- wards sells the house with the appurtenances, excepting the land, or sells the land to another, reserving to himself the house, the conduit and pipes pass with the house, hecause it is necessary and quasi appendant thereto, and he shall have liberty by law to dig in the land for amending the pipes or making .them new^ as the case requires. So if a lessee for years of a house and land erect a conduit upon the land, and after the term the lessor occupies them together for a time, and afterwards sells the house with the appurtenances, to one, and the land to another, the vendee shall have the conduit SECT. l] SUFFIELD V. BROWN 483 and the pipes, and liberty to amend tlieni." Shury v. Pigoft, Pop- ham, 166; s. c. 3 Bulst. 339; and the ease of Coppy v. /. de B., ]1 Hen. 7, 25, pi. 6. support this view of the case, that where a gutter exists at the time of the unity of seisin of adjoining houses it remains when they are aliened by separate conveyances, as an easement of necessity. It was contended, on the part of the defendant, that this pipe was not of necessity, as the plaintiff might have obtained another outlet for the drainage of his house at the expense of six pounds. We think that the amount to be expended in the alteration of the drainage, or in the constructing a new system of drainage, is not to be taken into consideration, for the meaning of the word "necessity" in the cases above cited, and in Pinninglon v. GaJland, 9 Exch. 1, is to be understood the necessity at the time of the con- veyance, and as matters then stood without alteration; and whether or not at the time of the conveyance there was any other outlet for the drainage water, and matters as they then stood, must be looked at for the necessity of the drainage. It was urged that there could be no implied agreement unless the easement was apparent and continuous. The defendant stated he was not aware of this drain at the time of the conveyance to him ; but it is clear that he must have known or ought to have known that some drainage then existed, and if he had inquired he Avould have known of this drain ; therefore it cannot be said that such a drain could not have been supposed to have existed; and we agree with the observation of Mr. Gale (Gale on Easements, p. 53, 2d ed.) that by " apparent signs " must be understood not only those which must necessarily be seen, but those Avhich may be seen or known on a careful inspection by a person ordinarily conversant with the subject. We think that it was the defendant's own fault tliat he did not ascertain what easements the owner of the adjoining house exercised at the time of his purchase; and therefore we think the rule must be discharged. Rule discharged. SUFFIELD r. BKOWN 4 DeG. J. &. S. 185. 1863. This was an appeal by the (IcfcMuhuit from a decree of the blaster of the Rolls, whereby his Honor granted without costs a perpetual injunction restraining' the appellant from preventing or interfering with the full use and enjoyment of the dock, hereinafter referred to, by the ])laintiffs in the manner the same had theretofore been used, by allowing the bowsprit of any vessel in the plaintiff's dock to overlie or overhang a certain specified portion, to be marked out 484 SUFFIELD V. BROWN [CHAP. VIII by metes and bounds, of the appellant's wharf, also hereinafter referred to, with liberty to apply. The plaintiffs were respectively the owners in fee and lessees of a dock situate on the Thames at Bermondsey, and used for re- pairing ships, principally sailing vessels. The appellant was the owner in fee of a strip of land and coal wharf adjoining the dock, on which he had begun to build a ware- house. The plaintiffs filed the bill in this suit for an injunction to re- strain such building, on the ground that w^hen their dock was occupied by a vessel of large size, her bowsprit must project over the boundary fence of the dock, across the appellant's premises, which it could not do if the appellant's building should be erected, and that they had a right to restrain such building, because it would deprive them of an easement or privilege which they were entitled to use or exercise over the land of the appellant. The plaintiffs put their case upon possession and enjoyment of the privilege claimed by them of sufficient duration to create a legal title. The Master of the Rolls decided, and in the judgment of the Lord Chancellor (from whose judgment the present statement of the facts is in the main taken) correctly, that the plaintiffs had not proved a possession or enjoyment sufficient to create a legal title to an easement ; but his Honor nevertheless granted an injunction in the terms above stated. Shortly stated, the facts of the case were as follows : — From the year 1841 until the month of June, 1845, a person named Knox was the owner in fee, and also the occupier, both of the dock and of the adjoining strip of land and coal wharf; and the evidence proved that during such period whenever a ship of any size was taken into the dock to be repaired, her standing bowsprit projected over and across the adjoining strip of land. In the month of June, 1845, the two properties, the dock and the strip of land and coal wharf, were put up for sale by Knox by public auction. In the description given in the particulars of sale, it was stated that the dock was capable of holding two vessels of large size, and that at low water several vessels, or a steamer of the largest class, could safely lie on " the ways " for repairs. The strip of land described and sold as a " freehold coal wharf " was stated to be capable of being rendered worth a very large rental by a comparatively small outlay. It was represented, therefore, as an improvable property, and nothing was stated to show that the dock or its owners either then had, or were intended to have, any right or privilege over the adjoining premises. At the auction, the strip of land and coal wharf were sold to one Gibson, and by the conveyance, which was dated in July, 1845, the vendor (who, at the execution of the deeds, still remained owner SECT. l] SUFFIELD V. BROWN 485 of the dock), conveyed the strip of laud and coal wharf to the pur- chaser, under whom the appellant claimed, in the most unqualified manner in fee simple, " together with all privileges, easements and appurtenances to the premises belonging, and all the estate, right, title, interest, property, claim and demand whatsoever, both at law and in equity, of the vendor, in, to, or out of the same hereditaments and premises, and every part thereof." The dock was afterwards sold and conveyed to other persons, under whom the plaintiffs claimed. At the conclusion of the arguments, the Lord Chancellor reserved his judgment. The Lord Chancellor [Lord Westbury], after stating the nature and the facts of the case to the effect of the statement hereinbefore contained, proceeded as follows : — The conveyance of the coal wharf, therefore, is tlie grant of a person who was at that time absolute owner of the dock, in respect of the ownership of which the present right is now claimed by his grantees against the coal wharf, and it is very difficult to under- stand how any interest, right or claim in, over or upon any part of the coal wharf could remain in the grantor, or be granted bv him to a third person, consistently with the prior, absolute and un- qualified grant that was so made of the coal wharf premises to the purchaser. Assuming that the vendor had been in the habit, during his joint occupation of both properties, of making the coal wharf subservient in any way to the purposes of the dock, one would suppose that the right to do so was cut off and released by the necessary operation of an unqualified sale and conveyance of the subservient property. It seems to me more reasonable and just to hold that if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, rather than to limit and cut down the operation of a plain grant (which is not pretended to be otherwise than in conformity with the contract between the parties), by the fiction of an implied reservation. If this plain rule be adhered to, men will know what they have to trust, and will place confidence in the language of their contracts and assurances. But this view of the case is not that taken by his Honor the Master of the Rolls. In the note which has been furnished me of his Honor's judg- ment, his Honor is represented as saying: — "The ground on which I think he (the defendant) cannot contest this right in the plaintiff is because I think that such projection of the bowsprit from the vessel in the dock is essential to the full and complete enjoyment of the dock as it stood at the time when he, or rather Gibson under whom he claims, ])urchased the wharf, and that Gibson and he had distinct notice of this fact, not merely from the description contained in the particulars of sale under which he bought, but also because 486 SUFFIELD V. BROWN [CHAP. VIII the fact was patent and obvious to any one, on the ground that if the dock admitted the largest vessel capable of being contained in it, the bowsprit must project over that portion of the wharf which I have pointed out." And again, " If, therefore, it be true that the dock can still be used, it is equally true that it cannot be used exactly as it has been heretofore, and my opinion is that this projection of the bowsprit is necessary for the due enjoyment of the dock in the ordinary sense of that term." The eifect of this is, that if I purchase from the owner of two adjoining freehold tenements the fee simple of one of those tene- ments and have it conveyed to me in the most ample and unqualified form, I am bound to take notice of the manner in which the adjoin- ing tenement is used or enjoyed by my vendor, and to permit all such constant or occasional invasions of the property conveyed as may be requisite for the enjoyment of the remaining tenement in as full and ample a manner as it was used and enjoyed by the vendor at the time of such sale and conveyance. This is a very serious and alarming doctrine ; I believe it to be of very recent introduction ; and it is in my judgment unsupported by any reason or principle, when applied to grants for valuable consideration. That the purchaser had notice of the manner in which the tene- ment sold to him was used by his vendor for the convenience of the adjoining tenement is wholly immaterial, if he buys the fee simple of his tenement, and has it conveyed to him -without any reservation. To limit the vendor's contract and deed of conveyance by the vendor's previous mode of using the property sold and con- veyed is inconsistent with the first principles of law, as to the effect of sales and conveyances. Suppose the owner of a manufactory to be also the owner of a strip of land adjoining it on which he has been for years in the habit of throAving out the cinders, dust and refuse of his workshops which would be an easement necessary (in the sense in which that word is used by the Master of the Eolls) for the full enjoyment of the manufactory; and suppose that I, being desirous of extend- ing my garden, purchase this piece of land and have it conveyed to me in fee simple; and the owner of the manufactory afterwards sells the manufactory to another person; am I to hold my piece of land subject to the right of the grantee of the manufactory to throw out rubbish on it? According to the doctrine of the judgment before me, I certainly am so subject; for the case falls strictly within the rules laid down by his Honor, and it reduces them to an absurd conclusion. The first introduction of this extraordinary doctrine appears to have been made in the following manner : — A learned and ingenious author, the late Mr. Gale, published, in the year 1839, a work of great merit on this subject of easements, in which he derived from the doctrine of the French Code Civil ^ 1 See French Civil Code, Arts. 688-694; 65 U. P. L. Rev. 77. SECT. l] SUFFIELD V. BROWN 487 certain rules with which he conceived that the law of England agreed, and inasmuch as these conclusions have been cited with approbation in some recent cases at common law, and as they form the principal support of the plaintiff's argument, it is right to state and examine them. Mr. Gale, in the opening of his 4th chapter (page 81, ed. 3), says : " The implication of the grant of an easement may arise in two ways: 1st, upon the severance of an heritage by its owner into two or more parts; and 2dly, by prescription. Upon the severance of an heritage a grant will be implied, 1st, of all those continuous and apparent easements which have in fact been used by the owner during the unity, and which are necessary for the use of the tenement conveyed, though they have had no legal existence as easements; and, 2dly, of all those easements without which the enjoyment of the severed portions could not be had at all." It will be observed that the learned author is not here speaking of easements which are already legally existing before the unity of possession, but of those which he supposes to arise for the first time by implication from the grant. If nothing more be intended by this passage than to state, that on the grant by the owner of an entire heritage of part of that heritage, as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements which have been and are at the time of the grant used by the owner of the en- tirety for the benefit of the parcel granted, there can be little doubt of its correctness; but it seems clear that the learned writer uses the word " grant " in the sense of reservation or mutual grant, and intends to state, that where the ownier of the entirety sells and grants a part of it in the fullest manner, there will still be reserved to such owner all such continuous and apparent or necessary ease- ments out of or upon the thing granted as have been used by the owner for the benefit of the unsold part of the heritage during the unity of possession. This is clearly shown by what is subse- quently laid down, that it is immaterial which of the two tenements is first granted, whether it be the quasi dominant or quasi servient tenement. But I cannot agree that the grantor can derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of him the grantor. Consider the easements as if they were rights, members or aj^purte- nances of the adjoining tenenu'iit; they still admit of being aliened or released, and the absolute sale and grant of the land on or over which they are claimed is inconsistent Avith the continuance of any- thing abridging the complete enjoyment of the thing granted which is separable from the tenement retained, and can be aliened or released by the owner. 488 SUFFIELD V. BROWN [CHAP. VIII Many rules of law are derived from fictions, and llie rules of the French Code, which Mr. Gale has copied, are derived from the fiction of the owner of the entire heritage, which is afterwards severed, standing in the relation of pere de famille, and impressing upon the different portions of his estate mutual services and obliga- tions which accompany such portions when divided among them, or even, as it is used in French law, when aliened to strangers. But this comparison of the disposition of the owner of two tene- ments to the destination du pere de famille is a mere fanciful analogy, from which rules of law ought not to be derived. And the analogy, if it be worth grave attention, fails in the case to be decided, for when the owner of two tenements sells and conveys one for an absolute estate therein, he puts an end, by contract, to the relation which he had himself created between the tenement sold and the adjoining tenement; and discharges the tenement so sold from any burden imposed upon it during his joint occupation; and the con- dition of such tenement is thenceforth determined by the contract of alienation and not by the previous user of the vendor during such joint ownership. And this observation leads me to notice the fallacy in the judgment of the Court of Exchequer in the case of Pyer v. Carter, 1 H. & IST. 916, one of the two cases on which the Master of the Rolls relies. In Pyer v. Carter the owner of two houses sold and conveyed one of them to a purchaser absolutely, and without reservation, and he subsequently sold and conveyed the remaining house to another person. It appeared that the second house was drained by a drain that ran under the foundation of the house first sold; and it was held that the second purchaser was entitled to the ownership of the drain, that is, to a right over the freehold of the first purchaser, because, said the learned judges, the first purchaser takes the house " such as it is." But with great respect, the expression is erroneous, and shows the mistaken view of the matter; for in a question, as this was, between the purchaser and the subsequent grantee of his vendor, the purchaser takes the house not " such as it is," but such as it is described and sold and conveyed to him in and by his deed of conveyance; and the terms of the conveyance in Pyer v. Carter were quite inconsistent with the notion of any right or in- terest remaining in the vendor. It was said by the court that the easement was " apparent," because the purchaser might have found it out by inquiry ; but the previous question is whether he was under any obligation to make inquiry, or would be affected by the result of it; which, having regard to his contract and conveyance, he certainly was not. Under the circumstances of the case of Pyer v. Carter the true conclusion was, that as between the purchaser and the vendor the former had a right to stop and block up the drain where it entered his premises, and that he had the same right against the vendor's grantee. I cannot look upon the case as rightly de- cided, and must wholly refuse to accept it as any authority. SECT. l] SUFFIELD V. BROWN 489 But to the earlier cases cited by the court in Pyer v. Carter as authorities for its decision there can be no objection. In Nicholas v. Chamberlain, Cro. Jac. 121, it was decided that if the owner of a house, being also owner of the land surrounding it, make a conduit through part of the land to the house, and then sells the house with its appurtenances, the right to the conduit passes; that is to say, the court held that the conduit was a thing appertaining to the house, and as such passed under the conveyance; and in the same case it was also decided, that if the owner sell the land, reserving the house, the right to the conduit is reserved, — a decision which merely amounts to this, that the reservation, like the grant of a house, is the reservation or grant of it with its appurtenances. To this case and to the case in the Year Book of the 11th of Henry VII., 25 PI. 6, Coppy v. /. de B., or the case of Sury v. Pigott, Palmer, 444, there can be no objection ; but they do not give any support to the decision in Pyer v. Carter. The other case relied on by his Honor, namely, Hinchcliffe v. The Earl of Kinnoul, 5 Bing. N". C. 1, is of a different character, and does not apply to the question of easements reserved by implica- tion or the grant of the quasi servient tenement. In that case, there being two adjoining houses, belonging to the same lessor, it appeared that the coal cellar under one house was supplied through a shoot, the mouth of which opened in the yard of the adjoining house; and it was held that a demise by the owner of both houses, of the first .house with its appurtenances, carried with it the right to use the coal shoot, and also a right of way to the coal shoot through the premises of the adjoining house, such way being necessary for the enjoyment of the coal shoot, — a decision which rests upon the ordinary principle of law, that if I grant a tenement for valuable consideration I also grant a right of way to it through my land, if such way be absolutely necessary for the enjoyment of the thing granted. This case might have had some application to the present if the dock had been the property first sold, and had been conveyed Avith all privileges, easements, rights, and appurtenances as then used and enjoyed by the vendor, he being still the owner of the adjoining strip of land and coal wharf; but it is plain that no easements can arise by the necessary operation of a grant, unless it be in the power of the grantor to give such easements. It is true that there may be two tenements, as, for example, two adjoining houses, so constructed as to be mutually subservient to and dependent on each other, neither being ('ai)able of standing or being enjoyed without the support it derives from its neighbor; in which case the alienation of one house by the owner of both would not estop him from claiming, in respect of the house he retains, that support from the house sold, which is at the same time afforded 490 SUFFIELD V. BROWN [CHAP. VIII in return by the former to the latter tenement (which was the case of Richards v. Bose, 9 Exch. 218) ; but where the right claimed in respect of the tenement retained by the joint owner against the tenement granted by him is separable from the former tenement, it is severed, and either passed or extinguished by the grant. It must always be recollected that I have been speaking through- out of cases where (as in the present case) the easement claimed had no legal existence anterit)r to the unity of possession, but is claimed as arising by implied grant or reservation upon the dis- position of one of two adjoining tenements by the owner of both, — which is in my opinion an ingenious but fanciful theory, which is, as to part, not required by, and is as to the other part wholly in- consistent with, the plain and simple principles of English law that regulate the effect and operation of grants of real property. There is in my judgment no possible legal ground for holding that the owner of the dock retained or had in respect of that tenement any right or easement over the adjoining tenement of the strip of land and coal wharf after the sale and alienation of the latter in the year 1845. I must entirely dissent from the doctrine on which his Honor's decree is founded, that the purchaser and grantee of the coal wharf must have known, at the time of his purchase, that the use of the dock would require that the bowsprits of large vessels received in it should project over the land he bought, and that he must be considered, therefore, to have bought with notice of this necessary use of the dock, and that the absolute sale and conveyance to him must be cut down and reduced accordingly. I feel bound, with great respect, to say that in my judgment such is not the law. But if any part of this theory were consistent with law, it would not support the decree appealed from, for the easement claimed by the plaintiff is not " continuous," for that means something the use of which is constant and uninterrupted ; neither is it " an apparent easement," for except when a ship is actually in the dock with her bowsprit projecting beyond its limits, there is no sign of its existence; neither is it a "necessary easement," for that means something without w^hich (in the language of the treatise cited) the enjoyment of the dock could not be had at all. But this is irrelevant to my decision, which is founded on the plain and simple rule that the grantor, or any person claiming under him, shall not derogate from the absolute sale and grant which he has made. Therefore I must reverse the decree of the Master of the Eolls, and dissolve the injunction he has granted, and dismiss the plaintiff's bill, with costs. 5ECT. l] UNION LIGHTERAGE V. LON. GRAVING DOCK 491 UNION LIGHTERAGE CO. v. LONDON GRAVING DOCK CO. [1902] 2 Ch. 557. 1902. Appeal from the decision of Cozeiis-IIardy, J., [1901] 2 Ch. 300. In 1860 Henry Green was the owner in fee simple of some river- side property at Blackwell. The western part was used as a wharf and shipbnihling yard, and was in the occupation of Messrs. Free- man as tenants. The eastern part was in the occupation of Green himself. In the same year he employed contractors to construct a graving dock on his own premises. It was constructed with timber sides, the underground sui)ports or ties being placed on the eastern side of tlie boundary fence dividing the two portions of the property. Signs of weakness soon appeared, and, in order to make the dock secure. Green, in or about 1861, under some arrangement with his tenants, Messrs. Freeman, carried rods or ties through the boundary fence under the wharf to a distance of about 15 ft. 6 in., piles being placed there, and the rods or ties being fastened to the piles by nuts. The rods or ties were not visible under the wharf, nor, except to the extent which will he mentioned presently, Avere the piles or the nuts visible. In 1877, Green having died, and both the properties being in hand, the devisees under his will conveyed the wharf premises to the plaintiffs, who carried on business there up to the commence- ment of the present action. The conveyance was in the ordinary form, ai'd contained no express reservation of any right of support to the dock. In 1886 Green's devisees sold the dock premises to a company, which subsequently sold those premises to the defendants, who carried on business there up to the commencement of the action. This conveyance also was in common form, and was silent as to support. In 1892 the defendants concreted the bottom and a small part of the side of their dock; but with this exception the timber remained as before. In 1900 the plaintiffs, in the course of excava- tions with a view to improving their property, came across a number of rods and ties, which were those which had been placed there in 1861. The question in the action was whether the defendants were entitled, as against the plaintiffs, to have their dock supported by means of the rods and ties. The result of the evidence was thus stated by Cozens-Hardy, J., in his judgment : — " Evidence has been adduced which satisfies me on several points. (1.) For a timber dock of this nature it was reasonably necessary to have underground rods and ties extending beyond the division fence between the two properties. This was proved by actual ex- 492 UNION LIGHTERAGE 1). LON. GRAVING DOCK [CHAP. VIlI perieuce in 1860, and Mr. Jt^ft'eroy, whose testimony was in no way shaken, states that the proper distance for safety, though it might vary slightly having regard to the nature of the soil, is for a dock of this depth thirty-three feet from the side, and this is about the distance adopted in 1861. (2.) If instead of a timber dock a con- crete wall had been placed on the western side of the dock, it would not have been necessary to go beyond the boundary fence. (3.) The plaintiffs, when they purchased in 1877, in fact had no knowledge of the existence of the rods or ties under their land, and they were not aware of their existence until 1900. In saying this I refer to the directors and managers of the plaintiff company. (4.) There are now visible on the western side of the camp-sheathing, (See note [1901] 2 Ch. at p. 302), which holds up the side of the wharf, and a few inches above the slip, two nuts on the outside of piles. These are nuts and piles placed there in 1861. These nuts are not always visible, and are not of such a nature as to attract atten- tion. In fact, the directors and the present manager had not noticed them until 1900. (5.) Although a skilled expert informed of the nature of the dock might have concluded that these nuts had to do with the support of the dock, no ordinary person conversant with riverside property would necessarily have arrived at this conclusion, for they might very probably have served to support the camp- sheathing and the wharf behind it. (6.) If the plaintiffs remove the ties it is probable that the dock side will give way." The accuracy of this statement was not disputed. Cozens-Hardy, J. held that when the wharf was conveyed to the plaintiff's there was no implied reservation of a right to support to the dock ; that the support had been enjoyed clam, and th'at there- fore no easement had been acquired by enjoyment ; and that the plain- tiffs were entitled to remove the rods and ties, although the result might be to cause the defendant's dock to collapse. The defendants appealed. Vaughan Williams, L. J. read the following judgment:^ The question is, w^hether there has been gained, in respect of the dry dock of the defendants, the right to retain in or under the land of the plaintiffs certain rods or ties for the purpose of supporting or upholding the dry dock. The defendants claim the right in two ways: first, by way of implied reservation; secondly, by way of prescriptive easement. It is necessary, in order to judge of these claims, to state the history of the case. [His Lordship stated the facts, and continued : — ] I will now deal with the two legal questions in succession. First, was there, under these circumstances, any reservation by Green of the right of support by these tie-rods? Secondly, have Green or his 1 Those portions of the opinion which deal with the question of prescrip- tion are omitted. SECT. l] UNION LIGHTERAGE V. LON. GRAVING DOCK 493 succesyors, by enjoyment since 1877, acquired, by prescription or presumed lost grant, any right to this support? Xow, as to the question of reservation, Wheeldon v. Burrows, 12 Ch. D. 31, puts beyond doubt the general rule, that, if a grantor upon a conveyance of part of his property intends to reserve any right over the tene- ment granted, he must do so by an express reservation in the grant. So far Wheeldon v. Burrows, 12 Ch. D. 31, is a mere affirmation of the law as laid down by Lord Westbury in Suffield v. Brown, 4 D. J. & S. 185, 194, where he says : " But I cannot agree that the grantor can derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of him the grantor. Consider the easements as if they were rights, members, or appurtenances of the adjoining tenement; they still admit of being aliened or released, and the absolute sale and grant of the land on or over which they are claimed is inconsistent with the contiiuiance of anything abridg- ing the complete enjoyment of the thing granted which is separable from the tenement retained, and can be aliened or released by the owner." But both Thesiger, L. J., in Wheeldon v. Burrows, 12 Ch. D. 31, and Lord Westbury in Suffield v. Brown, 4 D. J. & S. 185, 194, recognize that there are some exceptions to this general rule. One exception is the case of necessity'', of Avhich a way of necessity is the most familiar instance. Another case of exception is the case of reciprocity, in which houses or other buildings are so constructed as to be mutually subservient to and dependent on each other, neither being ca])able of standing or being enjoyed without the support it derives from its neighbor. This exception is recognized by Lord Westbury, 4 D. J. «& S. 198, and by Thesiger, L. J., in Wheeldon v. Burrows, 12 Ch. D. 31, the judgment of Pollock, C. B., in Bichards V. Rose, 9 Ex. 218, being generally the authority quoted for this exception of reciprocal or mutual easements. A third exception is where that which is claimed to be reserved is not an incorporeal easement, but part and parcel of a house or other building belonging to the conveying party, but not included in the conveyance. This exception is clearly recognized by James, L. J., in a short supple- mentary judgment which he delivered in Wheeldon v. Burrows, 12 Ch. D. 31. He said : " I only want to say something in addition, that in the case of Nicholas v. Chmnherlain, Cro. Jac. 121, the Court seems to have really proceeded on the ground that it was not an incorporeal easement, but that the Avhole of the conduit through which the water ran was a corporeal part of the house, just as in any old city there are cellars projecting under other houses. They thought it was not merely the right to the passage of water, but that the conduit itself passed as part of the house, just like a flue passing through another man's house." Thesiger, L. J., also recog- nizes the same exception, but put Nicholas v. Chamberlain, Cro. Jac. 494 UNION LIGHTERAGE V. LON. GRAVING DOCK [CHAP. VIII 121, as ail instance of an easement of necessity. Lord Westbury seems also to recognize this exception, for, speaking of Nicholas v. Chamberlain, Cro. Jac. 121, he said, (4 D. J. & S. 197) : it is "a decision which merely amounts to this, that the reservation, like the grant of a house, is the reservation or grant of it Avith its appurtenances." The present case is on the border line, but there is a great deal to be said in favor of the contention of the defendants, that these tie-rods fastened to"" the piles constitute a corporeal part of the dry dock, which was reserved, and, being essential to the maintenance of the dry dock, as it stood before and at the time of the conveyance, fall within Thesiger, L. J.'s view of this, which I have called the third exception, by being easements of necessity. On the whole, I think that the defendants are entitled to keep these tie-rods in the position in which they were originally placed, and always have been maintained, for the necessary purpose of the maintenance of the dry dock as built with its wooden sides. The tie-rods, in my opinion, are a corporeal part of the dry dock, just like the conduit or the cellar, or the flue mentioned by James, L. J. The tie-rods were, I think, reserved with the dry dock as appurte- nances thereof, as Lord Westbury expresses it. I have only to add that I do not assert that the authorities uniformly recognize the exceptions which 1 have specified to the general rule laid down by Lord Westbury in Suffield v. Brown, 4 D. J. & S. 185, 194, namely, the rule that it seems more reasonable and just to hold that, if the grantor intends to reserve any right over property granted, it is his duty to reserve it expressly in the grant, rather than to limit and cut down the operation of a plain grant (which is not pretended to be otherwise than in conformity with the contract between the parties) by a fiction of an implied reservation. For instance, there is this statement made by Lord Chelmsford, L. C, in Cross! ey & Sons v. Lightowhr, L. R. 2 Ch. 478, 486 : " It appears to me to be an immaterial circumstance that the easement should be apparent and continuous, for non constat that the grantor does not intend to relinquish it unless he shows the contrary by expressly reserving it." But against this dictum one has to put all those cases in which a reservation is implied for a right of support by way of reservation in favor of the grantor. These cases will be found set out in the judgment of Wood, V.-C, in the note to Taylor v. Shaffo, [1867] 8 B. 8z S. 228, 252, which show generally that the implication in favor of an existing support is easily made on the ground of necessity. It cannot, as it seems to me, be said that the result of the judgments in either Wheeldon v. Burrows, 12 Ch. D. 31, or Suifield y'. Brown, 4 D. J. & S. 185, is that it is impossible to presume a reservation from the state of things existing at the moment of severance of ownership of adjoining houses originally belonging to one owner. Richards v. Rose, 9 Ex. 218, was the case of two houses originally built together and belonging SECT. l] UNION LIGHTERAGE V. LON. GRAVING DOCK 495 to the same owner, and there the Court presumed that, upon sever- ance of ownership, there was a grant and reservation of a reciprocal right of support. It is, of course, true that the reciprocity is an important consideration in the infei-ence, but the inference is not from user; it is based upon the fact of the state of things existing at the moment of severance. It may be that the presumption will more readily arise where there is reciprocity than where there is no reciprocity, but the principle is the same in either case. In each case there is an exception from the rule that a man shall not dero- gate from his own express grant. The grantor is allowed by impli- cation to derogate from his own express grant. Why? Because of the state of things at the moment of severance. RoMER, L. J. read the following judgment : In my opinion this appeal fails. In the first place, I think that when the vendors, through whom the defendants claim, conveyed the plaintiffs' land to the plaintiffs, no reservation can be implied in favor of the vendors of a right of support in respect of the defendants' dock. When the conveyance is looked at, it appears to me that the ties supporting the dock, so far as they are on the plaintiffs' land, cannot be treated as part of the dock, and as not being conveyed. The land conveyed is clearly described, and, in my opinion, must cover the place occu- pied by the ties. Nor is this one of those cases of difficulty, referred to in WheeJdon v. Burrows, 12 Ch. D. 31, and other authorities, where at the date of conveyance reciprocal rights as between the property conveyed on the one hand and the property retained by the vendors on the other might be inferred. That being so, then, follow- ing Wheeldon v. Burrows, 12 Ch. D. 31, by which we are hound, it is clear that a reservation of a right of support in the present case could only be implied if it were one of necessity. Now, all I need say on this part of the case is that the facts do not lead me to the conclusion that there was any such necessity proved, or to be inferred, as would require, or would justify the Court in holding, that the reservation should be implied. Stirling, L. J. read his judgment as follows : The first point de- cided by Cozens-Hardy, J., was that, on the conveyance to the plain- tiffs of the wharf in 1877, there was no implied reservation to the vendor of the easement now claimed by the def(Midnnts. On this point the governing authority is Wheeldon. v. Burrows, ]2 Ch. 1). 31, decided by James, Baggallay, and Thesiger, L. JJ., by the last of whom the judgment of the Court was delivered. In it two rules are laid down in the following terms (12 Ch. D. 49) : " The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and a])parent easements (hy which, of course, I mean quasi-easemei\tii) , or, in other words, all those easements which are necessary to the reasoiuible enjoyment of the property granted, and which have been and are 496 UNION LIGHTERAGE V. LON. GRAVING DOCK [CHAP. VIII at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second ... is, that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well- known exception which attaches to cases of what are called ways of necessity." After reviewing various cases, the learned judge said (12 Ch. D. 58) : " These cases in no way support the proposi- tion for which the appellant in this case contends; but, on the contrary, support the propositions that in the case of a grant you may imply a grant of such continuous and apparent easements or such easements as are necessary to the reasonable enjoyment of the property conveyed, and have in fact been enjoyed during the unity of ownership, but that, with the exception which I have referred to of easements of necessity, you cannot imply a similar reservation in favor of the grantor of land." The appellants did not dispute that there is no express reservation in the conveyance to the plaintiffs, but they contended that the ease- ment claimed by the defendants is an " easement of necessity " within the recognized exception to the second rule. Now, in the passages cited the expressions " ways of necessity " and " easements of neces- sity " are used in contrast with the other expressions, " easements which are necessary to the reasonable enjoyment of the property granted " and " easements . . . necessary to the reasonable enjoy- ment of the property conveyed," and the word " necessity " in the former expressions has plainly a narrower meaning than the word " necessary " in the latter. In my opinion an easement of necessity, such as is referred to, means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoy- ment of that property. In Wheeldon v. Burrows, 12 Ch. D. 31, the lights which were the subject of decision were certainly reasonably necessary to the enjoyment of the property retained, which was a workshop, yet there was held to be no reservation of it. So here it may be that the tie-rods which pass through the plaintiffs' property are reasonably necessary to the enjoyment of the defendants' dock in its present condition ; but the dock is capable of use without them, and I think that there cannot be implied any reservation in respect of them. Some other exceptions to the general rule are mentioned in Wheeldon v. Burrows, 12 Ch. D. 31, and in particular reciprocal easements, but it was not contended, and it does not appear to me that this case falls within any of them. Nor do I think that the tie-rods here form part of the corporeal structure of the dock which can be held not to have passed by the conveyance of the adjoining property.^ 1 See Wheeldon v. Burrows, L. R. 12 Ch. D. 31. SECT. l] CARBREY V. WILLIS 497 CARBREY V. WILLIS 7 All. (Mass.) 364. 1863. CoNTKACT to recover damages for the breach of the covenants of warranty and against encumbrances in a deed of land on Atkinson Street, in Boston, bounded in part as follows : " Southerly on land now or late of Benjamin Gould, there measuring sixteen feet and six inches; westerly again on the same, there measuring sixteen feet; and southerly on land now or late of the heirs of Cowell, there measuring forty-eight feet, more or less, to said Atkinson Street, or however otherwise bounded or described." The declaration alleged that the premises conveyed Avere subject to a right of drainage across the same, and also to the right to have the eaves on the estate on the southerly side thereof overhang said land, and the water drip therefrom. At the trial in the Superior Court, before Ames. J., the execution of the deed by the defendant, which was dated May 1, 1848, was ad- mitted. It appeared in evidence that in 1812, and for many years before that time, the granted premises, and also an estate on High Street, in favor of which the alleged right of drainage was claimed, belonged to George Blanchard; and that in 1812 Blanchard conveyed to Rebecca Richardson the estate described in said deed, by a deed of mortgage in the common form, with general covenants of war- ranty and freedom from encumbrance, to secure the payment of $5000 in two years with interest. The title under this mortgage and also the equity of redemption, which was taken on execution, became vested in the defendant as early as 1821. The title to the estate on High Street passed from Blanchard in 1815, and is now held by devisees of William Phillips, who acquired the title thereto in 1823. The plaintiff introduced evidence tending to show that there was no trouble with the drain from the estate on High Street until 1857, when it became choked up, and flooded the cellar of .the house from which it led, and a mason was employed to make examinations, and it was found that it passed through the plaintiff's land; and that the house upon the estate on High Street was an old house prior to the year 1812. The plaintiff testified that he had no knowledge of the existence of the drain until it was opened by the mason. There was no evidence when or under what circumstances the drain was origi- nally constructed, except that the mason testified that it a])peared as if it was built when the house drained by it was built. There was some conflict of testimony as to the practicability of draining from the cellar of the High Street estate into the High Street sewer. " The judge ruled that, there being no evidence as to the precise tim(? when the drain was constructed, and it being assumed that it was an ancient one, the burden was upon the plaintiff to show that the owners of the High Street estate had acquired a right to use it, 498 CARBREY V. WILLIS [CHAP. VIII and that, so long as both estates were owned in the same right by the same person, the nse of the drain had nothing of the nature or character of an easement; that, after the ownership was severed and the two estates had passed into different hands, the fact that the High Street estate continued to be drained across the plaintiff's estate without any evidence that the plaintiff or those under whom he claims had any knowledge or notice whatsoever of the fact, would not amount to such an adverse use or such a claim of right as by mere use and lapse of time to create a right of easement, and that such use, not being open and notorious, would not establish the right, unless shown expressly to have come to the knowledge of the owners of the plaintiff's estate. " The judge also ruled that, although a drain attached to and used by the High Street estate would generally be held to be appurtenant thereto and to pass by any deed or conveyance thereof, independently of any prescriptive title or right acquired by adverse use, yet under the circumstances of this case, the drain being assumed by both parties to have been in use previously to the year 1812, and the owner at that time, Blanchard, having conveyed by mortgage the alleged servient estate to Richardson, with general covenants of warranty and freedom from encumbrances, the defendant, under the title deeds put in by him, making his title in part under the con- veyance to said Richardson, held his estate in 1821 and afterwards relieved of this encumbrance ; and that the owners of the High Street estate, claiming under said Blanchard, are estopped and barred, by the previous deed from said Blanchard of the other estate^ from claiming the drain in controversy as appurtenant to their estate." A verdict was rendered for the defendant, by the direction of the judge, and the facts and evidence were reported for the revision of this court. Hoar, J. The first ruling made by the judge who presided at the trial was entirely correct. While both estates were owned by Blanch- ard, no easement could be created by any use of the drain for the benefit of one of them. And after the ownership was severed, the continuance of the drain would have no tendency to prove the ac- quisition of an easement by adverse enjoyment, because the use was not open or visible, or known to the owners of the estate upon which it Avould be imposed. In the next place, it is clear that the conveyance by the mortgage to Rebecca Richardson in 1812, with full covenants of warranty, would estop the grantor and those claiming under a title subsequently derived from him, from claiming any interest in the mortgaged prem- ises. Wlien the mortgage was foreclosed or merged in the equity of redemption, the title of the mortgagee became absolute and inde- feasible to all the premises included in the mortgage deed at the time of its execution. The only question, then, which arises on this part of the case is, SECT. l] CARBREY V. WILLIS 490 Avliether anything was oxccptcd from the grant to Kichardson, as forming a part of the High Street estate which was retained by the grantor. The whole doctrine on this subject was reviewed and care- fully stated in the case of Johnson v. Jordan, 2 Met. 234. The court in that case intimate the opinion " that if a man, owning two tene- ments, has built a house on one, and annexed thereto a drain pass- ing through the other, if he sell and convey the house with the ap- purtenances, such a drain may be construed to be de facto annexed as an appurtenance, and pass with it; and because such construction would be most beneficial to the grantee; whereas, if he were to sell and convey the lower tenement, still owning the u])per, it might reasonably be considered that as the right of drainage Avas not reserved in terms, when it naturally M'ould be if so intended, it could not be claimed by the grantor. The grantee of the lower tenement, taking the language of the deed most strongly in his own favor and against the grantor, might reasonably claim to hold his granted estate free of the encumbrance." The grants were in that case simul- taneous. But Avherc, as in the case at bar, the grant of the lower estate precedes that of the other, Ave think the true rule of construc- tion is this : that no easement can be taken as reserved by implica- tion, unless it is de facto annexed and in use at the time of the grant, and is necessary to the enjoyment of the estate Avhich the grantor retains. And this necessity cannot be deemed to exist, if a similar privilege can be secured by reasonable trouble and expense. The rule in respect to easements wtich pass by implication has been held with some strictness in this Commonwealth, even in the case where a grantee claims them as against his grantor, or where the question arises between grantees under conveyances made at the same time, or in cases of partition. Thus in Grant v. Chase. 17 ^lass. 443, it Avas said that easements Avhich are not named Avould not pass by a grant, " unless they Avere either parcel of the premises that Avere expressly conveyed, or necessarily annexed and appendant to them." In Nichols v. Luce, 24 Pick. 102, it was held that " convenience, even great conA'enience, is not sufficient " to make a right of Avay pass as appurtenant. To the same effect is Gajietty v. Bethnne, 14 Mass. 49; and a similar conclusion is reached upon full discussion, by Mr. Justice Fletcher, in Thayer \. Payne, 2 Cush. 327. In some recent cases in England a different doctrine seems to have prevailed; and CA^en in the case of a grant of a part of an estate, an easement has been held to be reserved to the grantor as parcel of the remainder, Avithout an express reservation, if it Avere de facto used in connection Avith it at the time of the grant, and Avere necessary to its enjoyment in the condition in which the estate then AA-as. Pi/er V. Carter. 1 ITurlst. & Xorm. 016; Ewart v. Cochrane. 7 Jur. X' g^ 925; Halt v. Lund. Law Journ. Rep. May, lSfi3. page 113. In Pi/er V. Carter it Avas held that it Avould make no difference in the applica- tion of the principle, if a ucav drain could be coustructed on the 500 BROWN V. ALABASTER [CHAP. VIII plaintiff's own land at a trifling expense. The terms of the deed are not given in the report of the case, and the decision may perhaps be supported on the ground that the conveyance was of part of a house, having obvious existing relations to and dependencies upon the other part of the building. Thus it is a familiar principle that in a grant of a messuage, a farm, a manor, or a mill, many things will pass which have been used with the principal thing, as parcel of the granted premises, which 'would not pass under the grant of a piece of land by metes and bounds. In such cases it is only a ques- tion of the construction of terms of description. But where there is a grant of land by metes and bounds, without express reservation, and with full covenants of warranty against encumbrances, we think there is no just reason for holding that there can be any reservation by implication, unless the easement is strictly one of necessity. Where the easement is only one of existing use and great convenience, but for which a substitute can be furnished by reasonable labor and expense, the grantor may certainly cut him- self off from it by his deed, if such is the intention of the parties. And it is difficult to see how such an intention could be more clearly and distinctly intimated than by such a deed and warranty. The presiding judge ruled, as a matter of law, that no right of drainage was reserved under the deed to Richardson in 1812, and we have some doubt whether the evidence reported would have sup- ported a verdict to the contrary. But as the case must go to a new trial upon another ground, and there was some evidence of the necessity of the drain, and the nature and extent of the necessity do not appear to have been distinctly presented as a subject of ruling by the court, it will be proper that it should be submitted to the jury under suitable instructions upon this point.^ BROWN V. xVLABASTER 37 Ch. D. 490. 1887. By a lease, dated the 5th of October, 1877, a plot or piece of build- ing land at the corner of Augusta Road and Park Road, at Moseley, Worcestershire, and indicated on a plan in the margin of the lease, 1 And see Walker v. Clifford, 128 Ala. 67; Preble v. Reed, 17 Maine 169, 175; Bums v. Gallagher, 62 Md. 462; Broim v. Fuller, 165 Mich. 162; Dab- ney v. Child, 95 Miss. 585; Burr v. Mills, 21 Wend. (N. Y.) 290; Wells v. Garbutt, 132 N. Y. 430; Crosland v. Rogers, 32 S. C. 130; Howley v. Cha^ee, 88 Vt. 468; Shaver v. Edgell, 48 W. Va. 502. 508; Attrill v. Piatt, 10 Can. Sup. Ct. 425. But compare Cheda v. Bodkin. 173 Cal. 7, 14; Znamaneck v. Jelinek, 69 Neb. 110; Dunklee v. Wilton R. Co., 24 N. H. 489; Toothe v. Bryce, 50 N. J. Eq. 589; Taylor v. Wright. 76 N. J. Eq. 121; Lampman v. Milk.-^. 21 N. Y. 505; Seibert v. Levan, 8 Pa. 383; Sharpe v. Scheible, 162 Pa. 341; Harwood v. Benton, 32 Vt. 724; Miller v. Skaggs, 79 W. Va. 645, 648. SECT. I] BROWN V. ALABASTER 501 was demised by the lessors to William Letts, without any general words, for the term of ninety-nine years at the rent thereby reserved, a right being granted to Letts of erecting a party-wall on the north- east boundary of the land. By another lease of the same date a larger plot or piece of building land immediately adjoining, and indicated on a plan in the margin of the lease, was demised by the same lessors to Letts, " together with all ways, rights, easements, and appurtenances belonging thereto," for the term of ninety-nine years at the rent thereby reserved, a right being granted to Letts of erecting a party-wall on the north-east boundary of the land. Shortly after the date of the leases Letts built a boundary or party- wall along the north-east side of both plots, and on part of the first plot he built a house called " Normanhurst." The second or larger plot he divided into two, and on part of the half plot next " Xornian- hurst " built a house called " Cottisbrook," and on part of the other half plot a house called " "Westbourne." All three houses fronted towards, and had entrances into, Park Road, the ground behind each being enclosed and laid out as a garden. The garden of " Westbourne " extended right up to the above- mentioned party-wall, but the gardens of " Cottisbrook " and " Nor- manhurst " stopped about four feet short of it, a strip of land thus being left between the party-wall and those two gardens. This strip of land thus divided off and separated from the other land comprised in the two leases, Letts laid out as a back private way from Augusta Road to the gardens of " Cottisbrook " and *' Westbourne," this backway being inclosed throughoixt its length on the one side by the party-wall and on the other by the garden walls of " Norman- hurst " and " Cottisbrook." " Cottisbrook " and " Westbourne " each had a gate in its garden wall opening into the back-way, but " Nor- manhurst " had none, as it had a side entrance directly into Augusta Road. The entrance from the back-way into Augusta Road, Avhich was a public road, was closed by a gate which was usually kept locked, and of which, until the assignment to the defendant here- after stated, Letts or his agent had the key. A plan of the properties appears on the next page. The back-way having thus been formed and used as a mode of access to the gardens of " Cottisbrook " and " Westbourne," by an indenture, dated the 29th of June, 1878 — after reciting the second lease and the erection of the two houses " Cottisbrook " and '* West- bourne " — Letts assigned to John Aston and George Lyttelton Aston, "All and singular the said piece of land and premises com- prised in and demised by the hereinbefore recited indenture of lease or expressed so to be, and also all those the said two messuages erected on the said piece of land, together witli their and every of their rights, members and appurtenances," for the residue of the said term of ninety-nine years granted by such lease, by way of mortgage for 502 BROWN V. ALABASTER [chap. VIII securing £950 and interest. The terms of that assignment thus in- cluded the site of so much of the back-way as was conterminous with " Cottisbrook." By an indenture of the 2d of July, 1878, Letts assigned the plot of land demised by the first lease, and also the house thereon, calleart, parcel or member thereof." The vendor had many years previously made a private road from the highway into the stable over his own land for his own convenience, and had used it ever since. The soil of the road was not conveyed to the company, and no express mention of it was made in the conveyance, and it was held that, notwithstanding the unity of possession of the stable and private house, the right of Avay passed to the company under the general words of the conveyance. In that case Lord Justice Bowen says this, 26 Ch. D. 453 : " This particular case is not a case of a way of necessity, though I dct of the rights Avliich each should have in the other, and the duties to which each should be subject in favor of the other. If it was intended that one should have a per- petual right of drainage through the other, with a right of entry at all times to repair and relay such drain, especially where it is found not to be necessary to the enjoyment of the estate granted, it seems reasonable to suppose that it would have been expressed. As no such right was expressed, we are of opinion that it was not in- tended to be granted; and as it Avas not necessary to the enjoyment 516 ANDERSON V. BLOOMHEART [CHAP. VIII of the estate, and had not been de facto annexed, so as to pass by general words as parcel of the estate, it did not pass to the defend- ant's grantor by' force of the deed. As about ten years only elapsed after these conveyances, and the consequent division of the two tenements between different proprietors, before the grievance com- plained of, it is very clear that the defendant derived no right to the easement by actual use and enjoyment. Such a right in the estate of another can be created by actual use, only when such use has been adverse, peaceable, and uninterrupted, and continued for a period of twenty years. Judgment on the verdict for the plaintiff } ANDEKSON V. BLOOMHEART ET AL. 101 Kan. 691. 1917. Appeal from Lincoln district court; Dallas Grover, judge. Opinion filed November 10, 1917. Affirmed. The opinion of the court was delivered by Mason, J. : The defendants are the owners of two adjoining city lots, one vacant and the other occupied by a two-story building. They rented the building (excepting the second story) to the plaintiff by a five-year lease containing a covenant for quiet, enjoyment. A year later they were about to erect upon the vacant lot a structure which would cut off the light and air from the basement windows of the building occupied by the plaintiff. He brought an action seeking to enjoin such obstruction on the ground that it would render the basement practically useless to him. A demurrer to his peti- tion was sustained, and he appeals. By the English common law a conveyance of a part of a tract of land owned by the grantor carried with it by implication the right to the free passage of air and light to the portion conveyed over the remainder, in the absence of any express reference to the 1 On simultaneous conveyances by grant for value, see Warren v. Blake, 54 Me. 276; Mitchell v. Seipel, 53 Md. 251 ; Collier v. Pierce, 7 Gray (Mass.) 18; Randall v. McLaughlin, 10 All. (Mass.) 366; Briss v. Dyer, 125 Mass. 287; Larsen v. Peterson, 53 N. J. Eq. 88, post, p. 521 ; Rogers v. Sinsheimer, 50 N. Y. 646; Whyte v. Builders' League, 164 N. Y. 429; Swansborough v. Coven- try, 3 Bing. 305; Allen v. Taylor, 16 Ch. D. 355; Hansford v.Jago, [1921] 1 Ch. 322. By devise or by partition, see Jones v. Sanders, 138 Cal. 405; Cheda v. Bodkin, 173 Cal. 7; Conover v. Cade, 184 Ind. 604; O'Daniel v. Baxter, 112 Ky. 334; Mclntire v. Lauckner, 108 Me. 443; Clark v. Debauch. 67 Md. 430; Gorton-Pew Co. v. Tolman, 210 Mass. 402; Palmer v. Palmer, 150 N. Y. 139; Goodell v. Godfrey, 53 Vt. 219; Burwell v. Hobson, 12 Grat. (Va.) 322; Muse v. Cash, 114 Va. 90; Phillips v. Low, [18921 1 Ch. 47; Schunnn v. Cotton, [19161 2 Ch. 459. See Baker v. Rice, 56 Ohio St. 463; Rightsell v. Hale, 90 Tenn. 556. SECT. l] ANDERSON V. BLOOMHEART 517 subject. This rule at one time obtained some recognition in this country, but is now generally repudiated, although it survives in a modified form in some states. (1 C. J. 1227, 1228; 1 R. C. L. 398; 16 R. C. L. 716.) It has long been settled that the doctrine of " ancient lights " has no place in the law of Kansas. (Lapere v. Lackey, 23 Kan. 534.) "We accept as consistent both with reason and authority these expressions of American courts with respect to the matter of implied covenants: " The use and enjoyment of the adjoining lands are certainly no more subordinate to those of the house where both are owned by one man, than where the owners are different. The reasons, upon Avhich it has been held that no grant of a right to air and light can be implied from any length of continuous enjoyment, are equally strong against implying a grant of such a right from the mere conveyance of a house with windows overlooking the land of the grantor. To imply the grant of such a right in either case, without express words, Avould greatly embarrass the improvement of estates, and, by reason of the very indefinite character of the right asserted, promote litiga- tion. The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ow^nership and the use of the lands, is that no right of this character can be acquired without express grant of an interest in, or covenant re- lating to, the lands over which the right is claimed." (Keats v. Hugo, 115 Mass. 204, 215.) " It seems to us that this doctrine of easements in light and air, founded upon sheer necessity and convenience, like the kindred doctrine of ' ancient windows,' or prescriptive right to light and air by long user, is wholly unsuited to our condition, and is not in accordance with the common understanding of the community. Both doctrines are based upon similar reasons and considerations, and both should stand or fall together. They are unsuited to a country like ours, where real estate is constantly and rapidly appreciating, and being subjected to new and more costly forms of improvement, and where it so frequently changes owners as almost to become a mat- ter of merchandise. In cases of cheap and temporary buildings, tlie application of the doctrine would be attended with great un- certainty, and be a fruitful source of litigation. It would, moi'eover, in many cases, be a perpetual incumbrance upon the servient estate, and operate as a veto upon improvements in our towns and cities. It will be safer, we think, and more likely to subserve the ends of justice and public good, to leave the parties, on questions of light and air, to the boundary lines they name, and the terms they ex- press in their deeds and contracts." (Mullen v. Stricl'ler. 19 Oliio St. 135, 143.)' 1 That there can be no implied grant of an easement of light and air on a conveyance of the fee in the United States, see Kctmcdi/ v. Burnap, 120 Cal. 488; Ray v. Sweeney, 14 Bush. (Ky). 1; Keipcr v. Khin, 51 Ind. 518 ANDERSON V. BLOOMHEART [CHAP. VIII The precise question here presented, however, is whether an easement for light and air may be implied in a lease of one tract by the owner of that adjoining it. In a recent note it is said that the decisions slightly predominate in favor of an affirmative answer. (13 L. R. A., n. s., 333.) In the case there annotated {Darnell v. Columhiis Show-Case Co., 129 Ga. 62) that view of the question was adopted by an extension of the rule, which had already been confirmed by statute, that — " When one sells a house, the light necessary for the reasonable enjoyment whereof is derived from and across adjoining land then belonging to the same owner, the easement of light and air over such vacant lot passes as an incident to the house sold, because necessary to the enjoyment thereof." (p. 336.) In the opinion it was said that the principle was equally applic- able to a lease, and that the reason for it was more cogent in that case because of the tenant's restricted control of the premises. This decision is the less persuasive here because made in a jurisdiction where the English rather than the American rule is followed with respect to the eifect of conveyances by adjoining owners. This is true also of the first case cited in the note. ( Ware v. Chew, 43 N. J. Eq. 493.) The second case cited (Case v. Minot, 158 Mass. 577) affirmed the right of the tenant of a room in an office building to damages by reason of the obstruction of a light-and-air shaft or well by the building of a chimney by another tenant — a situation not entirely analogous to that here presented. The third case (Doyle et al. v. Lord et al., 64 N. Y. 432) was qualified by this statement : "If the yard [in which the ownier was about to erect a structure which would cut off the light and air from premises occupied by its tenants] had not been part of the lot upon which the building was standing and if it had not been appropriated to use with the build- ing so as to pass as appurtenant thereto, so far as to give easements therein to the tenants of the building, the plaintiffs could not have complained of the acts of the defendants." (p. 439.) In the only other American case cited in the note referred to on this side of the question (Eazlctt v. Powell, 30 Pa. 293) the part of the opinion bearing upon the matter was a rather casual dictum, apparently made upon the strength of two decisions arising out of sales, not leases. It is clear, therefore, that there is little in the American decisions tending to induce a court which holds that no covenant as to light and air is to be implied in a deed to take a differ- 316; Keats v. Hugo, 115 Mass. 204; Mullen v. Strieker, 19 Ohio St. 135; Bailey v. Gray, 53 S. C. 503. Contra, Janes v. Jenkins, 34 Md. 1 ; Geer v. Van Meter, 54 N. J. Eq. 270. Compare Rennyson's Appeal, 94 Pa. 147, 153, where it is said that an ease- ment of light may be raised by actual necessity; and see also Robinson v. Clapp, 65 Conn. 365. 385; Georgia, Code (1914), § 3618. SECT, l] RODGERS V. PARKER 519 ent view ia the case of a lease; although it is also true that the specific decisions of a contrary tendency are not numerous. While it is of course possible to make a distinction based upon the difference between a deed and a lease, we think the reasons for repudiating the doctrine of ancient lights and the rule by which a covenant as to light and air is implied in a deed apply with sufficient force to the present situation to require us to hold that no right Avith respect to light and air was created by implication under the facts alleged in the petition, and the demurrer was properly sustained. The judgment is affirmed.^ EODGEES V. PARKER 9 Gray (Mass.) 445. 1857. Action of tokt for breaking and entering the plaintiff's close in Quincy, and breaking down the plaintiff's fence. The parties submitted the question whether the action could he maintained to the decision of the court upon the following facts : On the 24th of April 1855 William P. Apthorp offered for sale by public auction house lots on the Apthorp estate in Quincy. The auctioneer exhibited a plan at the sale, (the material part of which is printed in the margin,*) and distributed copies thereof Hancock '. Avenue. among the persons who attended. Lot 7 was bid off by the defend- ant; lot 1 by the plaintiff; and lots 2, 3 and 8 by other persons. Deeds were soon afterwards made by Apthorp to the purchasers, and recorded, describing each lot by its number on this plan, (de- clared therein to be " recorded with the deed of lot numbered one on said plan,") and as bounded "on a passage called llaneoek Avenue on said plan." That avenue was staked out at tlie time of the auction. After this sale, and before thes(^ deeds wcr(> made, A]itliorp sold 1 The plaintiff petitioned for a rehearing on the ground the court had overlooked the defendant*' covenant for quiet enjoyment, but a rehearing was denied. The opinion on this petition is omitted. 520 RODGERS V. PARKER [CHAP. VIII and conveyed lots 4, 5 and 6, together with that part of Hancock Avenue lying west of a straight line drawn from the southeast corner of lot 6 to the northeast corner of lot 4, to the plaintiff, who afterwards erected a fence across the avenue at the dotted line on the plan. The defendant, some days after requesting the plaintiff to remove the fence, removed it himself, without injuring the materials, and left them by the side of the avenue. Dewey, J. As to the right- of the defendant to have an open avenue or way, coextensive with the extent of the lot purchased by him, there can be no question. The sale to the defendant was made by one having the entire estate, and was a sale by public auction of house lots laid out and numbered on a plan then ex- hibited; said lots being bounded by Hancock Avenue, which was also delineated on the plan, which plan was afterwards recorded in the office of registry of deeds. In this state of the facts, the grantor and those who succeed to his title to the remaining land are estopped from denying that there is such a way. Treating the right of the defendant to be of the more restricted character, of a way coextensive with his house lot, this right was violated in the erection of the fence in the line in which it was placed, the same not being at right angles with the avenue. But the farther ground of defence that the defendant, as purchaser of lot No. 7, may require that the entire avenue as staked out at the time of the auction sale and delineated on the plan shall be kept open as an avenue, having been also urged at the argument, we have also considered that question. This subject has recently been before us for our consideration in the case of Thomas v. Poole, 7 Gray, 83, under facts somewhat similar — a way staked out and to be opened by the grantor, the lot sold described as bounded in such way, but having more distinctly stated by words in the recital the extent of the new way. In the present case, the extent of the avenue is clearly marked upon the plan, and is as readily ascertained thereby as it would have been by a recital in words. In the case of Thomas v. Poole, the court held that the way thus staked out and upon a part of which the lot sold was bounded, was to be kept open for its entire distance as thus staked out and ex- hibited to purchasers, and that the right to have the same kept open was not limited to the extent of the land conveyed to any particular purchaser of one lot. It seems to us that the same principle is applicable to the present case, and that the entire avenue, as staked out and delineated on the plan exhibited at the sale and afterwards recorded, was as respects the plaintiff to be kept open as an avenue. In either aspect of the question the defence is well maintained. Judgement for the defendant} 1 And see Highland Realty Co. v. Avondale Land Co., 174 Ala. 326; Rogers v. Bollinger, 59 Ark. 12; Danielson v. Sykes, 157 Cal. 686; Pierce v. SECT. l] LARSEN V. PETERSON 621 LARSEN" V. PETERSON 53 N. J. Eq. 88. 1894. Heard on pleadings and proofs. Pitney, V. C. The object of this bill is to establish and protect complainant's right in, and enjoyment of, an easement. The circumstances, which are not open to serious dispute, are peculiar. For some years prior to and on the 1st day of June, 1893, Mrs. Elizabeth Mabey, of Montclair, Essex county, Avas the owner of a lot of land fronting on Elmwood avenue, in that city, upon which was a double frame dwelling, comprising, under one roof, two com- plete dwellings, separated only by an ordinary lath and plaster par- tition, without any openings. Some years before that date she had procured a well to be drilled in the earth and underlying water- bearing rock in the rear of this building, and had laid therefrom two independent waterpipes placed in the earth, leading to the dwelling, one into the sink of eacli kitchen. Each dwelling was supplied with an ordinary handpump, and in this manner, and in no other, each of the separate dwellings was supplied with water. There was nothing visible on the ground in the rear of the house to indicate the existence of a well or its connection with the dAvelling, and* there was no water- main in the street. This being the situation, Mrs. Mabey, in the spring of 1893, was minded to sell this property, but was unwilling to sell a part without the whole. At the same time, both complainant and defendant were desirous of purchasing houses for their individual use, and, hearing of this property, called together on Mrs. Mabey — that is, com- plainant and John Peterson, acting as agent for his wife — and looked at the property. They looked at only one of the dwellings — that in the actual occupation of Mrs. Mabey, the other being in the occupation of a tenant — and were informed, and truly, by Mrs. Mabey, that the two dwellings were precisely alike in all respects, and, indeed, this was plainly indicated by their exterior appearance. In the kitchen of the part occupied by Mrs. Mabey, both complainant Roberts, 57 Conn. 31; Smith v. Yuung, 160 111. 163; Cleaver v. Mahanke, 120 Iowa 77; Riley v. Stein, 50 Kan. 591; Rowan v. Portland, 8 B. Men. (Ky.) 232; Iseringhamen v. Larcade, 147 La. 515; Yotmg v. Braman, 105 Me. 494; Adams v. Produce Exchange, 115 Atl. (Md.) 106; Fox v. Union Sugar Re- ■ finery, 109 ]Ma,-^s. 292; Lindsay v. Jones, 21 Nev. 72; White v. Tidewater Oil Co.. 50 N. J. Eq. 1; Weeks v. Neiv York Ru. Co., 207 N. Y. 190; Collins v. Asheville Land Co., 128 N. C. 563; Chapin v. Brown, 15 R. I. 579; State v. Hamilton, 109 Tenn. 276: Wolje v. Bross. 72 Tox. 133; Ci.'^h v. Roanoke, 119 Va. 519; Cook v. Totten. 49 W. Va. 177; E.^yUi/ v. Wilkes, L. R. 7 Ex. 298. Compare Marshall v. Li/vh, 2.')6 111. .522; Dnnnan v. Bates Mfg. Co., 82 Me. 438; Hoive v. Alger. 4 All. (Mas,<) 206; Williams v. Bo.-^ton Water Power Co., 134 Mass. 406; Ralph v. Clifford. 224 Mass. 58; Quicksalt v. Lee, 177 Pa. 301; Lins v. Seefeld, 126 Wis. 610. 522 LARSEN V. PETERSON [CHAP. VIII and Peterson saw and particularly noticed the pump in the sink and tasted the water from it, and were informed that it came from a drilled well in the back yard, and that both dwellings were supplied in the same way and from the one well. The precise location of the well was not pointed out, and was not known either to Mrs. Mabey or to either of the parties until after the conveyances presently to be mentioned. Both complainant and defendant knew that there was no water-main in the street. • On that occasion complainant and John Peterson agreed together, and with Mrs. Mabey, to purchase the property at a price named, and agreed that it should be equally divided between them, and that the title should be made to each in severalty according to a dividing line to be agreed upon between them and actually run on the ground by a surveyor in such a manner that it should run through the partition separating the two dwellings, and then divide the land as nearly equally as practicable. Peterson at the same time gave $10 for the choice of the houses, and then and there chose the house in which Mrs. Mabey was living; but such choice had no reference to the location or control of the well, and was influenced entirely by the circumstance that the house so chosen had, owing to the shape of the lot, more light and air in its front and side than the other. The survey was had accordingly, and a description of the dividing line given, and deeds of conveyance in accordance with it, dated June 1st, 1893, were executed by Mrs. Mabey on June 5th, and duly delivered at the same moment, one to complainant and the other to Mrs. Peterson, the wife of John. Both parties took possession. Subsequently Peterson discovered that the well was on his land, and then cut the pipe leading to complainant's kitchen, who thereupon attempted to repair it and was prevented by the defendant; whereupon he filed this bill asking that his rights in the premises may be established, and the defendant enjoined from preventing him from renewing the water-pipe connection with the well. Upon the filing of the bill an injunction was granted accord- ingly, and the complainant took advantage of it to restore the con- nection between his pump and the well to its former condition. At the hearing there was no contention that the well did not sup- ply water enough for both families, or that complainant had made an unreasonable use of it. The above are the facts as I have found them. Peterson does, indeed, deny that he was told on the occasion in question that the other dwelling had a pump like the one they inspected, or that there was but one well for both houses. But the contrary is sup- ported not only by the evidence of complainant, but also by that of Mrs. Mabey and her daughter, both disinterested witnesses — or rather, if they have any interest, it is against complainant, since Mrs. Mabey gave Mr. Peterson a warranty deed — who gave their evidence in a way to command the belief of the court. Besides, Peterson does not deny that he saw the pump and heard that it was SECT. I J LARSEN V. PETERSON 523 supplied with water from a well, but does deny that he was told that the other dwelling was similarly supplied. But he knew that both dwellings were a part of one building, and that in external appear- ance they were precisely alike; that the other dwelling was occu- pied ; he fixed the value of the choice between the two houses at only $10, which was due, as he admits, to a difference in the size of the front yard, which would necessarily result, as shown by the plot, from a division of it in the way proposed and agreed upon. He does not contend that his choice was due to any supposed difference in the interior of the houses, or to the presence of water in one and its ab- sence in the other, or that he supposed that each house had an in- dependent supply of water. These circumstances render it highly improbable that he did not, in some way, learn that both dwellings were supplied with water in the same way and from the same source. It was, to say the least, not probable that the proprietor of such a lot and building would incur the expense of an independent water- supply to each dwelling. Upon this case, the complainant, in his able brief, makes two points which support each other, and either of which, standing alone, he contends, entitles him to relief. First. That the well and aque- duct running therefrom to complainant's house constitute a change of a permanent nature in the structure of the defendant's tenement, made for the benefit of complainant's tenement by the owner of both, of which defendant had actual notice through her agent before she purchased, and which was of such a nature as to be discovered on an examination, and hence became an apparent and continuous ease- ment in favor of complainant's tenement upon the defendant's tene- ment. Second. That the effect- of the transaction between com- plainant, defendant and Mrs. Mabey, was a purchase by the two jointly from Mrs. Mabey, with an agreement between the two that the property should be divided in the manner stated, and that the arrangement for the supply of water for each house should rcnuiin as it was. It seems to me that the controlling question is, whether the ar- rangement for the supply of water to coni])laiuant's house constituted what is known to jurists as a " continuous and apparent " easement, which was " necessary " in the sense in which that word is used in that connection, for the comfortable use and occupation of the com- plainant's premises. As to the quality of its being " apparent," the fact that it was, in part, hidden in the earth, and so not physically apparent to the eye, is not conclusive. The part on complainant's land — the pump — was visible, and the water must have come either from the land actually conveyed to him or from that conveyed to Peterson. Independent of the actual notice, I am of opinion that Mrs. Peterson, under the peculiar circumstances of this case, is chargeable with notice that there was such a pump on the complainant's tenement, and that it 524 LARSEN V. PETERSON [CHAP. VIII might connect with the well or cistern on the part that was conveyed to her. It seems to be well settled that the mere fact that a drain or aque- duct, as the case may be, is concealed from casual vision, does not prevent it from being " apparent " in the sense in which that word is used in that connection. The aqueduct, in Nicholas v. Chamber- lain, 2 Cro. 121; the drain, in Pyer v. Carter, 1 Hurlst. & N. 916; the aqueduct, in Watts v. Kelson, L. R. 6 Ch. 166; in Brakeley v. Sharp, 1 Stock. 9 and 2 Stock. 207; in Seymour v. Lewis, 2 Beas. 439, and in Toothe v. Bryce, 5 Dick. Ch. Rep. 589, were all buried beneath the surface and not visible to the casual observer, and yet the easement in each case was upheld. The point of actual appear- ance to the eye was distinctly raised in Pyer v. Carter, and over- ruled. There, as here, the two dwellings were under one roof, and once had a common owner, and had a drain in common for the use of both, which was not visible. Baron Watson, in his considered judgment, used this language: "We think it was the defendant's own fault that he did not ascertain what easements [the drain] the owner of the adjoining house exercised at the time of the purchase." Although this case has been severely criticised as to the main ground upon which it was decided, the part of it just quoted has not been questioned, and the general result was undoubtedly right. See Toothe V. Bryce, 5 Dick. Ch. Rep. 599. It is true that, in each of the cases of aqueducts above cited, both ends of the pipe — as well that from which the flow of water came as that to which it was carried — were probably visible, while here only that end was visible which was on the dominant tenement; but I am of the opinion that where, as here, and in Toothe v. Bryce, the dominant tenement is conveyed and the servient tenement is reserved, the controlling fact is that the existence of the gimsi-easement is shown by something in sight upon the dominant tenement. That is the point toi which the attention of the purchaser is naturally directed; and the principle upon which the cases go is that he is entitled to the tenement he buys in its then present condition, and the use of all such easements as are apparent and continuous. Now, the easement which he sees on the tenement which he buys must be held to be apparent. It seems to me that, in Toothe v. Bryce, the result must have been the same if the ram which drove up the water to the tenement con- veyed to the complainant, had been entirely invisible. In the case in hand the controlling fact is that the pump was there visible and in use, and by its connection with the invisible pipe lead- ing to some fountain the house conveyed to complainant was sup- plied with water. This view must hold if the defendant's tenement had been retained by Mrs. Mabey and the action were against her instead of Mrs. Peterson; and, according to the well-settled rule in this court, the SECT. l] LARSEN V. PETERSON 525 result would be the same if Mrs. Mabey had conveyed to Mrs. Peter- son and retained the lot conveyed to complainant, provided Mrs. Peterson had notice of the actual fact that the pump on the lot retained was supplied by water from a well which might prove to be on the lot conve^^ed (see the cases on this point in 7'oolhe v. Bryce) ; and provided, of course, the easement had the other elements requi- site, viz., that of being continuous and necessary in the qualified sense in which that word is used in that connection. In short, in my opinion all that is meant by " apparent," in that connection, is that the parties should have either actual knowledge of the quasi- easement or knowledge of such facts as to put them upon inquiry. iN'ext, as to the quality of being " continuous." Mr. Gale, in the later editions of his book — §§ 50, 52 (4th £ng. ed., 1868, pp. 87, 89) — comes to the conclusion that the test of continuousness is that there should be an alteration in the quality — or " disposition " — of the tenement, which is intended to be, and is, in its nature, permanent, and gives the tenement peculiar qualities, and results in making one part dependent, in a measure, upon the other. It is not of the essence of this test, as applied to a watercourse, that the water should flow of itself continuously, but the test is that the arti- ficial apparatus by which its flow its produced is of a permanent nature. It is with a view of bringing out this quality of permanence that the learned author contrasts this class of easements with a right of way, " the enjoyment of which depends upon an actual inter- ference of man at each time of enjoyment." Noav, what is meant by that sentence is that the burthen of the easement in the case of a right of way is not felt by the servient tenement except at the moment of each enjoyment of it. A permanent structure upon, or alteration of, the servient tenement is not a necessary element of such an ease- ment. And by the expression " interference of man at each time of enjoyment " is meant no more than an interference with the servient tenement by an entry upon it, as illustrated not only by ordinary rights of way, but also by rights of way with a right to take something from the servient tenement, as in Pohlen v. Bastard, 4 Best & S. 257; L. K. 1 J. B. 156. I stop here to say that the distinction between a watercourse and a formed and metaled road constructed for permanent use is quite thin, and there have been ex])ressions of judges in modern times intimating an inclination to hold that where a dwelling or other such tenement is conveyed with an artificially-formed road leading to it over other lands of the grantor which are reserved, a right of way ought to be held to pass. The true distinction between a continuous and a non-continuous easement is again illustrated by the case of tlic rain-water drain in Pyer v. Carter, through which the water actually ran only when it rained, and yet it was held continuous ])ecause it was permanent and constituted a permanent alteration in the structure of the teue- 526 HIGBEE CLUB V. ATLANTIC CITY CO. [CHAP. VIII ment. Suppose that in that case it had been necessary for the plain- tiff on each occasion of a rain lo pump the rain-water from a pit in his cellar into the drain, would it have been, by reason of that arrangement, any the less continuous? I think not. In short, I conclude that the word " continuous " in this connection means no more than this — that the structure which produces the change in the tenement shall be of a permanent character, and ready for use at the pleasure of the owner of the dominant tenement without mak- ing an entry on the servient tenement. In Seymour v. Lewis, supra, although the Avater did run by gravity, the head was so small that a sufficient supply could not be procured without the use of a pump, and a pump was in actual use; and yet that did not destroy the con- tinuous character of the easement. For these reasons I conclude that the easement here in question is both apparent and continuous. That it was " necessary " in the sense in which that word is used in this connection is undeniable. In this case there is no room for the application of the distinc- tion, even if that distinction were recognized by this court, between the reservation and the grant of an easement of this character upon the severance of the tenement. The conveyances from the original proprietor, which produced the severance, w^ere simultanous, and amounted, under the circumstances, to a voluntary partition between complainant and defendant. In such a case, as shown by Chancellor Williamson, in Brakeley v. Sharp, 2 Stock. 207, the rule that a man cannot derogate from his own grant does not apply. I conclude that the complainant is entitled to the relief prayed for, and will so advise. HIGBEE FISHING CLUB v. ATLANTIC CITY ELECTRIC COMPANY 78 N. J. Eq. 434. 1911. On final hearing on bill, pleadings and proof. Complainant is the 0A\nier of a rectangular lot of land the dimen- sions of which are sixty feet by one hundred feet. The land is not adjacent to a highway and no means exists for travel to or from complainant's lot without the necessity of passing over the land of others. The bill seeks to establish a way of necessity across the land of defendant. Complainant purchased the lot referred to in the year 1897 from the executors of Jonas Higbee, deceased. The deed to com- plainant conveys the lot by metes and bounds, together with the " tenements, hereditaments and appurtenances thereto belonging or in any wise appertfrining," but makes no express provision touching any easement of way over any adjoining land. The lot of land when SECT. l] HIGBEE CLUB V. ATLANTIC CITY CO. 627 purchased was vaeuiit salt meadow; a clubhouse has since been erected on it. At the date of the sale the vendors owned the land adjacent to the lot sold on three sides thci'cof; the West Jersey and Seashore Railroad Company owned the adjacent land on the fourth side. In the year 1910 the same grantors who sold to complainant conveyed the land which has been referred to as adjacent to complainant's lot on the three sides thereof, to defendant. Leaking, V. C. 1. It is well settled that a right of way over a grantor's land arises when such grantor sells land Mdiolly surrounded by other land which he retains, or when the part sold is surrounded in part by the land retained and in part by that of a stranger, over which there is no right of access. In such eases the way is a neces- sary incident to the grant, for without it the grant would be useless; the grant is necessarily for the beneficial use of the grantee and the way is necessary to the use. Stuyvesant v. Woodruff, 21 X. J. Law (1 Zab.) 133, 155; Lore v. Stiles, 25 N. J. Eq. (10 C. E. Gr.) 381, 383; French v. Smith, 40 N. J. Eq. (13 Stew.) 361, 362; 3 Kent. Com. *420; 14 Cyc. 1174 note 33. By the grant to complainant a way of necessity over the remaining lands of grantor was un- doubtedly created in favor of complainant. 2. I think it also clear that the sale of the remaining land from complainant's grantor to defendant was not operative to extinguish complainant's rights. Defendant does not occupy the position of an innocent purchaser without notice of complainant's right. An ex- amination of the record title of defendant's grantors would have disclosed not only the conveyance to complainant but also the prior conveyance to the railroad company. The physical conditions then apparent disclosed complainant's isolated lot with no highway as a means of access to it. Not only were these conditions reasonably apparent but defendant, before purchasing, had a survey of the entire premises made and the four corners of complainant's property were staked by defendant as well as the several corners of the tract which defendant was about to purchase. These physical conditions thus actvuilly ascertained by defendant, in connection with the in- formation disclosed by the record, were clearly operative to charge defendant with notice of complainant's rights. 3. The jurisdiction of this court to determine complainant's rights and to locate the part of defondant's land over which said rights nuiy be exercised has been recognized and acted upon in Camp v. Wliihnan, 51 N. J. Eq. (6 Dick.) 467. See, also, Pearne v. Coal Creek Co., (Tennessee), 18 S. W. Rep. 402. 4. In Camp v. Whitman, supra, it was found as a fact that at the time of the grant the parties actually contemplated a use of the prem- ises granted which required a way for vehicles, and accordingly it was there held that the way should be suitable for such use. In the present case, however, no evidence of that nature exists. On the con- trary, the physical conditions surrounding complainant's lot were 528 WORTHINGTON V. GIMSON [CHAP. VIII of such a nature that a way for vehicles couhl not well be deemed to have been contemplated by the parties at the time of the grant, and indeed such a way does not seem to have become at any time neces- sary to the use to which the lot has been devoted. In view of the prin- ciples defined in London v. Rlggs (1880), L. R. 13 Ch. Div. 798, I am unable to find justification for a right of way of necessity in ex- tent more than a footway. 5. The claim on behalf of defendant tliat complainant is entitled to use the property of the railroad company for access to his lot is clearly untenable. A right of that nature could only be acquired by grant or adverse user for twenty years. If the parties can agree upon the route of a footway I will advise a decree accordingly, otherwise there may be a reference to a master to determine it.^ SECTION" II BY REFERENCE TO PREVIOUS USE SAUNDEYS V. OLIFF Moore, 467. 1597. [See this case given on p. 471, ante.] WORTHINGTON V. GIMSON 2 E. & E. 618. 1860. The declaration stated that plaintiff was possessed of a messuage, farm, buildings, garden, and land, with the appurtenances, and by reason thereof was entitled to a way from the said messuage, (Src, unto, into, through, over, and along certain land of defendant, for plaintiff and his servants, &c., yet defendant obstructed the said way. Pleas. 1. Not guilty. 2. That plaintiff Avas not by reason of his possession of the said messuage, farm, buildings, garden, and land, with the appurtenances, entitled to the alleged way in the declara- tion mentioned, in manner and form as alleged. Issues thereon respectively. At the trial before WilUams, J., at the Leicestershire Summer Assizes, 1859, it appeared that the plaintiff was the occupier of a farm and house at Naneby, a hamlet of Market Bosworth, in the county of Leicester; and that he also occupied therewith two closes in the adjoining parish of Newbold Vernon. These two closes ad- ^ As to whether the servient tenement continues bound in the hands of a subsequent purchaser by an easement created by implication, see Rubio Canon Ass'n v. Everett, 154 Cal. 29; Robinson v. Clapp, 65 Conn. 365; Ingals V. Planwndon, 75 III. 118; Edwards v. Haegcr, 180 111. 99; Muir v. Cox, 110 Ky. 560; Zimmerman v. Cockey, 118 Md. 491. 497; Smith v. Lockwood, 100 Minn. 221; Schwann v. Cottori, [1916] 2 Ch. 459. SECT. II ] WORTHINOTON V. GIMSON 620 joiiipfl part of a farm occupied by the defendant under Sir W. Hartopp, and situated in Newbold Vernon. The way mentioned in the pleadings passed from the plaintiff's farm buildings across one of his said closes in Newbold Vernon, and then across the farm of the defendant. It was proved that the way had been used by the plaintiff and his father, who occupied the farm before him, for more than forty years, and that it had been rendered impassable by an obstruction caused by the defendant in January, 1859. It appeared that, since the date of the partition deed hereafter mentioned, the owner of the farm occupied by the defendant had been only a tenant for life. For many years prior to January, 1820, the owners of the two farms had been jointly interested in them, the late Sir E. C. Hartopp being seised of one undivided moiety, and the late Mr. John Pares of the other. In January, 1820, a partition deed was entered into between Sir E. C. Hartopj) and Mr. John Pares, whereby the Newbold Vernon portion of the land, with the exception of the two closes before referred to, were conveyed to the use of the Hartopp family, and the Naneby portion, together with the said two closes, were conveyed to Mr. John Pares absolutely. The last-mentioned estate came by sale into the possession of one Harris, who was the owner of it at the time this action was brought. The way had existed and had been used for many years by the occupiers of either farm; but there was no express reservation in that part of the parti- tion deed by which Mr. Pares granted his undivided moiety. The grant by the same deed, by Sir E. C. Hartopp, of his undivided moiety in the Naneby estate to Mr. Pares, conveyed, Avith other farms, that occupied by the plaintiff, '' with their and every of their rights, members, easements, and appurtenances." The jury found ^at the occupiers of the Naneby farm had enjoyed the way as of fact up to and before the deed of partition, and also that the way had been enjoyed for twenty years since the partition deed up to the time of the obstruction. The learned judge notwithstanding this finding, nonsuited the plaintiff, reserving to him leave to rule that the verdict should be set aside, and a verdict with nominal danuiges entered for him instead thereof. Crompton, J. I am of opinion that my Brother Williams was quite right at the trial, and that we cannot enter the verdict for the plaintiff upon th(> findings of the jury. We are asked to do so upon the finding that tlierc had been an actual use of the way, up to the time of the partition; nltliough it is not found that the Avay was used of necessity. Mr. (iale, in his work on Easements, states very clearly the class of easements which pass by implication. At page 76 (Sd ed.,) he says, "Where such easements are in their nature continuous and apparent, they pass upon a severance of the tenements by implication of law, without any words of new grant or convey- ance. Indeed properly speaking, such easements are not revived, 530 WORTHINGTON V. GIMSON [CHAP. VIII but newly created, by an impliod grant." " The same observation applies to easements, commonly called ' of necessity.' " He adds : " Other easements, such as ordinary rights of way, will not pass upon a severance of the tenements, unless the owner ' uses language to show that he intended to create the easement de novo.' " The last words of this passage are those of Bayley, B., in Barlow v. Rhodes, 1 C. & M. 448; in which case a question was raised, which does not here arise, whether parol evidence was admissible in explanation of the terms of a deed of grant. We are also asked to say that the way in dispute in the present case passed under the word " appurtenances " in the deed of January, 1820. But in James v. Plant, 4 A. & E. 749, which is relied upon in support of that contention, language was used in the deed of partition which showed that the intention of the parties was that the way should pass, and the court held that the subsequent general word " appurtenances " might be properly con- strued in a sense wide enough to give effect to that intention. In the present case the parties have not used apt words in the deed to express an intention to pass the way in dispute, and the general words which follow the description of the property intended to be conveyed do not add to or alter the previous words of conveyance. It is said that this way passed, as being an apparent and continuous easement. There may be a class of easements of that kind, such as the use of drains or sewers, the right to "which must pass, when the property is severed, as part of the necessary enjoyment of the severed property. But this way is not such an easement. It would be a dangerous innovation if the jury were allowed to be asked to say, from the nature of a road, whether the parties intended the right of using it to pass. It may, besides, be very naturally supposed to have been the intention of the parties that, on the partition of the prog,- erty, all ways not incident to the separate enjoyment of each of the severed portions should cease. Hill, J. I am of the same opinion. I found my judgment upon this, that there is nothing in the deed to indicate that the parties intended to use the word " appurtenances " in any other than the strict legal sense of the word; and that the right of way claimed by the plaintiff is not within that sense. Rule discharged} 1 The opinion of Wightman, J., is omitted. See Stevens v. On, 69 Me. 323; Oliver v. Hook, 47 Md. 301; Duval v. Ridout, 124 Md. 193; Morgan v. Meuth, 60 Mich. 238; Bonnelli v. Blakemore, 66 Miss. 136; Spaidding v. Abbott, 55 N. H. 423; Stuyvesant v. WoodruiJ, 21 N. J. L. 133; Michelet v. Cole, 20 N. M. 357; Parsons v. Johnson, 68 N. Y. 62; Morris v. Blunt, 49 Utah, 243; Swazey v. Brooks, 34 Vt. 451; Grymes v. Peacock, 1 Bulst. 17; Clements v. Lambert, 1 Taunt. 205; Whalley v. Tomp- son, 1 B. & P. 371; Polden v. Bastard, 4 B. & S. 258, L. R. 1 Q. B. 156; Hall V. Byron. L. R. 4 Ch. D. 667. Compare Thomas v. Wiggcrs, 41 111. 470; Atkins v. Bordman, 2 Met. (Mass.) 457 (but see Grant v. Chase, 17 Mass. 443) ; Eliott v. Sallee, 14 Ohio St. 10; Thomas v. Oiven, 20 Q. B. D. 225; Hansford v. J ago, [1921] 1 Ch. 322, 331. SECT. II ] KAY V. OXLEY 531 KAY V. OXLEY L. R. 10 Q. B. 360. 1875. Case stated by an arbitrator, after verdict, taken by consent, for the plaintiff. The action was brought to try the right of the defendant to ob- struct a way which the plaintiff claims a right to use over defend- ant's land for certain purposes. The following are the material parts of the case: — On and previous to the 1st of May, 1860, the defendant was the owner in fee of a dwelling-house, together with the cottage, stable, outbuildings, and garden thereto belonging, now the property of the plaintiff, and called " Koseville," situate at Roundhay, in the parish of Barwick in Elmet, in the county of York, abutting upon a public highway called Horse Shoe Lane, leading from Leeds to Seacroft; and defendant was also the owner in fee of an adjoining farmstead and farm called Rose Cottage Farm, abutting also upon the same highway, and having a private farm road leading from it to the farm buildings, stack-yard, and other premises connected therewith, and to a field adjoining them. By an indenture of lease, dated the 1st of May, 1860, defendant demised Roseville to R. J. Hudson for a term of ten years from that date, together with " all and singular the rights, privileges, ease- ments, advantages, and appurtenances whatsoever to the said mes- suage and premises thereby demised, belonging, or in anywise apper- taining or therewith used or enjoyed." At the time of the demise the stable had no upper story, and was of the same height as the adjoining cottage demised with it. Hudson entered at once into possession, and in the same year built at his expense a hay chamber or upper room over the stable, with two square openings in the east wall of the chamber, of the respective dimensions of 4 ft. 7 in. by 2 ft. 1 in., and 2 ft. 10 in. by 2 ft. 10 in., for the purpose of getting his corn, hay, and straw into his hay cham- ber, and for which purpose they were adapted. Both openings were fitted with shutters, and the shutters to one of them opened outwards There were no other means for the admission of light and air into the chamber except a man-hole, 2 ft. 6 in. by 2 ft. 1 in. square, cut through the south-east corner of the floor. The east wall and the openings abutted upon and looked into the stack-yard and adjoining premises of Rose Cottage Farm; and there was no access to them with carts and wagons out of any part of the premises demised to Hudson, and the only way by which carts and wagons could be brought up to them was by taking them along the private farm road to Rose Cottage Farm. Before making these alterations, Hndson consulted the defendant and Robert Barber, who was then the defendant's tenant of Rose 532 KAY V. OXLEY [CHAP. VIII Cottage Farm, upon them, and obtained their consent to them, and, at the same time, their permission to use Rose Cottage Farm private road to get to the hay chamber, when comph;ted, witli bis cart and wagon loads of hay, corn, and straw. No openings were made in the opposite or west wall of tbe hay chamber. The lessee Hudson remained in occupation of Roseville and prem- ises until about March, 1863, when he sublet them to a Mrs. Fletcher, who remained in occupation twelve months; and on her quitting, them, Hudson sublet them to Richard Green, who remained in occu- pation up to the expiration of the aforesaid lease of 1860, and was in actual occupation and using the defendant's farm road, as Hudson had done, to get hay and corn into the hay chamber, at the time when the plaintiff purchased from the defendant, as hereinafter mentioned. In 1868, the defendant entered into the occupation of Rose Cottage I arm himself, and has continued to occupy it to the present time, having a bailiff residing in the farmstead ; and he has been all along and still is the owner of it. All the time Hudson and his under-tenants were in occupation of Roseville they respectively used the defendant's private farm road with their carts and wagons to get their hay, corn, and straw into the hay chamber, and were never interrupted or interfered with by the defendant or his tenants or servants. The permission which the defendant gave to his lessee Hudson before building the hay chamber was never withdrawn, but on a few occasions the servants of Hudson and Green asked permission of the defendant's tenant and bailiff to use the road. In May, 1870, the plaintiff agreed with the defendant to purchase Roseville; and by a conveyance dated the 2d of August, 1870, de- fendant conveyed to plaintiff in fee " all that messuage or dwelling- house, with the outbuildings, conservatory, gardens, and pleasure grounds thereto belonging, called Roseville, situate at Roundhay, in the parish of Barwick in Elmet, in the county of York, and abutting upon Horse Shoe Lane, leading from Leeds to Seacrof t ; And all that cottage, stable-yards, outbuildings, and close of- land adjoining the said messuage or dwelling-house; Together with all buildings, erec- tions, fixtures, commons, hedges, ditches, fences, ways, and rights of way, waters, watercourses, drains, cisterns, lights and rights of light, liberties, privileges, easements, advantages, and appurtenances what- soever to the said messuage or dwelling-house, cottage, land, and hereditaments, or any of them, appertaining, or with the same or any of them now or heretofore demised, occupied, or enjoyed, or reputed as part or parcel of them, or any of them, or appurtenant thereto." At the time of the conveyance the hay chamber, with the two open- ings in the east side, stood precisely as it had been erected by Hudson, The plaintiff entered into possession, and began at once to use SECT. II ] KAY V. OXLEY 533 the defendant's farm road to bring his carts and wagons np to the openings in the hay chamber, and so to get his hay and straw into the chamber, and continued to do so without interruption up to May, 1873, when, and ever since, he has been refused the use of the road by the defendant. As things were at the time of the purchase by the plaintiff and now are, the plaintiff had not, nor has he now, any way of putting hay, corn, and straw into his chamber except by using the defendant's farm road, or incurring expense in the necessary alteration of his buildings and premises which he purchased from the defendant. The question for the court was, whether the plaintiff has a right of way over the defendant's private farm road to and for the use of his hay chamber for the purposes mentioned or any or either of them, either by virtue of or ancillary to the conveyance of 1870. Blackburn, J. I think when we come to understand this case that the plaintiff is entitled to the right of way. The facts are these : the plaintiff purchased Roseville of the defendant, and the defendant by the deed conveyed to the plaintiff the lands and hereditaments, to- gether with all, &c. [The learned judge read the clause.] It is not disputed that if the conveyance had stopped at the word, '' appertain- ing " the plaintiff's case might not have been sustainable, but it goes on to add the words : " or with the same or any of them now or here- tofore demised, occupied, or enjoyed, or reputed as part or parcel of them, or any of them, or appurtenant thereto." We have now to look at the facts in order to see whether the particular right of way in question was in fact occupied or enjoyed or reputed as appurtenant to Roseville. Mr. Herschell says that, where a man is occupier of two adjoining pieces of land, and uses both for the convenience of liimself as the actual occupier of both, anything that he may do on the one is prima facie not a right appurtenant to the other, and would not pass as appurtenant; and that when he passes across the one close to the other, he exercises the right of going from one to the other merely for his convenience as occupier of the two, and tliat he does not prima facie enjoy or occupy the way as appurtenant to the other, and that the way would not pass as a right enjoyed or as appurtenant. But though that may prima facie appear to be the case; yet if there be acts of ownership and user of a road by a man across land for the enjoyment and exclusive convenience of himself as occupier of tlie adjoining lands, notwithstanding the cases cited, I do not til ink, in point of law, we can say that the fact of a road having been so enjoyed and occupied oidy during the time lie had unity of ])ossession or unity of seisin prevents it being enjoyed as appurtenant. The first case relied on for the defendant is Tliomson v. W^aterloxc, Law Rep. 6 Eq. 36, 41, before the late Master of the Rolls; and I cannot help thinking that he must have been misutiderstood. lie is reported to have said: "There is, as it appears to me, a distinction 534 ' KAY V. OXLEY [CHAP. VIII between the user of a way which has been made by the owner of ad- joining closes, and a right of way which, previously to such unity of possession, existed from one close to the other, and which has become merged by the fact of the same person having become the owner of both properties." I quite agree that there is a distinction. The way which had existed previously to the unity of possession, and which still continued to exist, is obviously one to be used and enjoyed as appertaining to the other premises. In the case of the other way it would require to be seen whether it had been so used and enjoyed. Then the Master of the Rolls continues : " I do not think that the judges in James v. Plant, 4 Ad. & E. 749, intended to lay down that such words of conveyance as were used in that case and in the present would constitute the grant of a right of way, where the user had sprung solely from the convenience of the person who held both tenements, which convenience ceased to exist when the severance be- tween the closes took place." Taking that as the rule to be applied as to matter of fact, I think it is a sound one. I think whenever it appears that an alleged right of way had been used for the con- venience of the person who held both tenements, which convenience ceased to exist when a severance took place, it is a good rule to adopt to say that the Avay was not used or enjoyed as appurtenant to the premises — it was used for the convenience of the man who was the occupier of the two, and when he ceases to be the occupier of the two, I think it is no longer appurtenant. That, I think, is a sound rule. And though the facts of the case before the late Master of the Rolls are not set out, I presume they were such as to show that the right of way said to pass was for the convenience of the person so long as he was the occupier of the whole premises to which and over which the way went. Looking at it in that view, it would seem to have been a sound enough decision. In Langley v. Hamynond, Law Rep. 3 Ex. 168, the Lord Chief Baron is reported to have laid it down as matter of law : "' Since it does not appear here that at any antecedent time," that is, before the unity of possession, " there existed a right over one of these pieces of land attached to the other piece of land, the effect of these words " (together with all ways used or enjoyed therewith) " cannot make or revive a right of way that never before existed." And then he goes on to cite what I have read from the judgment of the Master of the Rolls in Thomson v. Waterlow, Law Rep. 6 Eq. 41. ISTo doubt the Lord Chief Baron so lays down the law, and if that had been the decision of the Court of Exchequer, we should have been bound by it, and we must have left the question whether it was right or no for the Court of Error. But I cannot agree that, upon the construction of words like those in the conveyance here in question, they cannot as a matter of law create a right of way that did not previously exist as a right. If the words, as my Brother Lush suggested in the course of SECT. II J KAY V. OXLEY 535 the argument, had been " together with the right of way which Green de facto has enjoyed of passing over the private farm road," supposing that had been a right of way never enjoyed as of right, but merely a way de facto used, still I think the words would have clearly enough created a right of way. I quite agree, where there is a track across the middle of a stack-yard, and the owner sold one side of the stack-yard to enable the purchaser to throw it into his pleasure-grounds, that track across the middle of the stack-yard would not, to use the words of the Master of the Rolls, be a right of Avay appurtenant to every portion of the stack-yard, but a right of Avay solely for the convenience of the person who held the whole stack- yard, and which convenience ceased to exist when he severed one part of the stack-yard from the other. That is a good and sound distinc- tion, and taking it in that way, which is the point Martin, B., went upon, I think the decision is perfectly good and right. As to the Lord Chief Baron's dictum, I do not think that what the Master of the Rolls said amounted to so much ; but if it did, we have the dicta of the Lords Justices James and Mellish in Watts v. Kelson, Law Rep. 6 Ch. Ap. 172, 174, showing that they do not agree in the doctrine. It cannot make any difference in law, whether the right of way was only de facto used and enjoyed, or whether it was originally created before the unity of possession, and then ceased to exist as a matter of right, so that in the one case it would be created as a right de novo, in the other merely revived. But it makes a great difference, as matter of evidence on the question, wliothcr the way was used and enjoyed as appurtenant. We have now to apply this to the facts of the present case. As a matter of evidenc(> we find it stated in the case that Hudson, the then tenant of Roseville, wlio held on a lease for ten years, made a hay- loft, with two large openings to admit the hay, which could not be used except by bringing the hay in carts below them along the farm road, and these openings, though not absolutely essential to the use of tlie hay-loft, were extremely important and material for the use of it. Before Hudson built the loft and made these openings, he applied to the defendant, the freeholder of the farm and landlord of Roseville, and obtained his consent to the alterations being made; and at the same time Hudson asked and obtained leave to use the private farm road in question to get the hay and straw in carts to his hay chamber. Hudson remained in occupation of Roseville until March, 1863, when he sublet to Mrs. Fletcher, who remained in occu- pation twelve months; and on her quitting, Hudson sublet to Green, who remained in occupation up to the expiration of the lease, and was in actual occupation and using the defendant's farm road as Hudson had done, to get hay, straw, and corn into the loft, at the time when the plaintiff purchased Roseville from the defendant. I do not think it necessary to consider whether or not that parol license, 536 KAY V. OXLEY [CHAP. VIII whicli was given by tlic defendant to use the road, was revocable; or whether an action might not have been maintained for obstructing the tenant in doing that which he had a parol license to do; or whether an action of trespass could have been brought against the tenant for using that road. I do not think it material to decide that. The license was not in fact revoked. The tenant for the time being of Roseville continued to use the road as appurtenant to it, and had the apparent necessity of using it for the purpose of getting to the two large openings in the loft, exactly in the same way as if the con- sent of the defendant had been in Avriting, and a wafer stuck on it. There would not have been the slightest difference in the use and enjoyment of the road. In the one case it would have become appurtenant, and in the other case it would only have been enjoyed as if it were appurtenant. I think in considering the words, we should see what they really mean, and apply them to the state of circumstances existing at the time of the conveyance; and I think this right to carry hay and straw to these two openings was in point of fact then occupied, and enjoyed, and reputed as appurtenant to these premises; and therefore that the plaintiff is entitled to judg- ment. Lush, J. I am of the same opinion. The only question is whether the words of this conveyance manifest an intention that the mode of access which had been used by the tenant of Roseville to the hay loft for the purpose of conveying fodder there, should pass to the plaintiff under that conveyance as a right of way. It is beyond doubt, as a fact, that during the subsistence of the lease, the tenant and his successors had used this way for the purpose of conveying hay and straw, &c., to the hay loft. It was the only mode of access to these openings, and it existed up to the time when the purchase was made by the plaintiff. The conveyance of the house and stable, together with the other premises, has these words, " Together — " [The learned judge read the clause]. The latter words were clearly intended to pass, if there were any such thing enjoyed, something not strictly appurtenant to the premises, which could not have been claimed as a matter of right Mdthout these larger words. Applying that to the facts as they existed at the time of the conveyance, there was a way which had been used by the tenant for the time being as a mode of access to a part of the premises, namely, the hay loft, and which had been used and enjoyed as if that way had been appurte- nant to it, and the language used, I think, expresses, when you come to apply it to the facts, the intention to pass this right of way as specifically as if the conveyance had said " including all the ways and easements to the hay loft as the same have been heretofore enjoyed by Green." That undoubtedly would have passed this way. I cer- tainly was struck with the observation of Mr. Herschell, that in none of the reported cases does it appear that the way claimed and held SECT. II ] KAY V. OXLEY 537 to pass had been newly created as a right by the deed in question. Mr. Herschell says that in all the cases it appears (and certainly the note in 2 "Wms. Notes to Saund. p. 809 n. (c) does justify that position) that there had been originally a right of way appurtenant to the premises which had been suspended, but not extinguished by unity of possession ; and the question in all the cases was whether the general words used in the conveyance were intended to revive the right. I certainly was struck with that observation, because I have an impression even now, that there are cases to be found in which rights of way have been thus created by deed. But however that may be, I cannot see anything to prevent the acquisition of such a right by the words used in the present instance. I do not think that we are at all acting in conflict with the decision of the late Master of the Rolls in Thomson v. Waterloir, Law Rep. 6 Eq. 36. That case is obscurely stated, but I collect from the terms of the judgment that there had been no specific defined portion of the soil appropriated by the owner as a roadway to the severed property as appurtenant to it, but that he had been used to ride across one field in any direc- tion he thought proper in order to get to another field. As to the case in the Exchequer of Langlcy v. Hammond, Law Rep. 3 Ex. 161, 168, 170, I thiidv that case is rightly decided, although not on the ground put by the Lord Chief Baron. I prefer the ground on Avhich my Brother Bramwell puts it. Looking, therefore, at the language used, I think it was intended to grant this right of way or access to the hay loft, just as if it had been expressed in terms that it was in- tended to pass the use of the road as the access to the hay loft, as it had been enjoyed by Green, wiio lield the premises up to tlic time of the conveyance. Blackburn, eT. With regard to the observation on the older cases, 1 may add that in Kooystra v. Lucas, 5 B. (S: Al. 830, page 833, it does not appear affirmatively whether the right of way claimed had or had not been created before. The judges make no mention one way or the other; but the Chief Justice's direction was that the plain- tiff" was entitled to the right of way claimed for his cattle to the spot of ground on wliicli he had built his stable and coach-house, "that being a part of the demised premises to which such a way had been used previously to 1814," the date of the conveyance. It might have been that the right of way existed before tlir unity of possession, l)ut that is certainly not stated affirmatively. Judgment for the plainfiff.^ 1 See Bradshaw v. Ei/rr. do. El. 570; Worhdg v. Kingmrl, Cro. El. 794; Barkshirc v. Crnibh. 18 Cli. D. 610; Bai/iry v. (it. Western Ry. Co., 26 Ch. D. 434; Bariyjg v. Abingdon, [1S921 2 Ch. 374, 389. 538 WICKHAM V. HAWKER [CHAP. VIII SECTION III BY WORDS OF RESERVATION OR EXCEPTION. WICKHAM V. HAWKER AND OTHERS 7 M. & W. 63. 1840. Parke, B.^ This case was tried before my Brother Coleridge, at the last Summer Assizes at Winchester, when several points were re- served, which were fully argued before my Brothers Alderson, Gurney, and myself, at the sittings after Hilary Term. It was an action of trespass qu.d. jr. against the defendant Hawker and two others, for entering the plaintiff's closes, and hunting and searching for and killing game. The special pleas were, first, that Vidler and Cox were seised of the manor of Bullington, in trust for Widmore, and that Widmore, Vidler, and Cox, by an indenture, in 1712, between them and Wade, and sealed by Wade, released parcel of the demesne lands of the manor of Bullington, comprising the locals in quo, to Wade, " except- ing and always reserving to Widmore, Vidler, and Cox, their heirs Q and assigns, liberty, with servants or otherwise, to come upon the lands so conveyed, and there to hawk, hunt, fish, and fowl at any time thereafter, at their will and pleasure : and the said John Wade did ro thereby grant to Widmore, Vidler, and Cox, their heirs and assigns, the said liberty so excepted and reserved." The plea then states a release and conveyance from Vidler and Cox to Widmore of the manor and liberty, and deduces from him a title to both to the de- fendant Hawker, and he and the others, as his servants and in his company, justify the trespasses by virtue of the liberty. The second special plea states, that the occupiers of the manor had used and enjoyed, and Hawker as such occupier was entitled to use and enjoy, the right of hunting, hawking, and fowling, for sixty years, by .themselves and with servants. The replication to the first plea takes issue on the allegation of a grant. That to the second denies the user and enjoyment. There was a new assignment of the trespasses committed by the two other de- fendants, by command of Hawker in his absence, in hunting, &c. ; and pleas to the new assignment, — first, a reservation and grant of a liberty, in the like terms and by a similar deed to that in the second plea, to hunt, kc. hy servants; secondly, a similar plea to the third, of sixty years' user, by the occupier and hy servants. The replication to the first plea to the new assignment denied the grant; to the second, denied the user and enjoyment. The principal questions in the case were, how the issues raised by the replication to the first special plea to the declaration, and the 1 The statement of facts is omitted, and part only of the opinion is given. SECT. Ill] WICKHAM V. HAWKER 539 first plea to the new assignment, ought to be found; and that de- pends upon the legal effect of the deed of 1712. The liberty " of hawking, hunting, fishing, and fowling," is, by the terms of that deed, " excepted and reserved to "Widmore, Vidler, and Cox ; " but so far as related to Widmore it could not be a good exception or reservation, because he was not a conveying party to the deed; nor is such a liberty, whether it be a mere easement or a profit a prendre, properly and in correct legal language, either an exception or a reservation. This point was expressly decided in the case of Doe d. Douglas v. Lock, 2 Ad. & Ell. 743, where most of the authorities were cited and fully considered. Lord Denman^ in deliver- ing the judgment of the court, says, " that the privilege of hawking, hunting, fishing, and fowling is not either a reservation or an ex- ception in point of law; it is only a privilege or righi granted to the lessor, though words of reservation and exception are used." As the indenture was executed by Wade, the words of reservation and excep- tion operated as a grant by him to the three — Widmore, Vidler, and Cox, and the plea properly stated the legal effect of those words as a grant by him. Consequently this issue ought to have been found for the defendant, and the verdict must be entered accordingly.^ 1 " The rent, heriots, suit of mill, and suit of court, arc the only things which, according to the legal sense and meaning of the word, are reservations. For we are of opinion, that what relates to the privileges of hawking, hunt- ing, fishing, and fowling, is not either a resei-vation or an exception in point of law; and it is only a privilege or right granted to the lessor, though words of reservation and exception are used. And we think, that what relates to the wood and the underground produce is not a reservation, but an excep- tion. Lord Coke, in his Commentary on Littleton, ' 47 a, says, 'Note a diversity between an exception (which is ever of part of the thing granted, and of a thing in esse), for which, exceptis, salvo, proeter, and the like, be apt words; and a reservation which is always of a thing not in esse, but newly created or reserved out of the land or tenement demised.' In Shep- pard's Touchstone, p. 80, 'A reservation is a clause of a deed whereby the feoffor, donor, lessor, grantor, &c., doth reserve some new thing to himself out of that which he granted before : ' and, afterwards, ' This doth differ from an exception, which is ever of part of the thing granted, and of a thing in esse at the time; but this is of a thing newly created or reserved out of a thing demised that was not in esse before; so that this doth always reserve that which was not before, or abridge the tenure of that which was before.' And afterwards, ' It must be of some other thing i.ssuing, or coming out of the thing granted, and not a part of the thing itself, nor of something is.suing out of another thing.' And afterwards, ' If one grant land, yielding for rent, money, corn, a horse, spurs, a rose, or any such like thing; this is a good resen'ation : but if the reservation be of the grass, or of the vesture of the land or of a common, or other profit to be taken out of the land; these reservations are void.' In Brooke's Abridgment, title Reservation, pi. 46, it is said, that if a man leases land, reserving common out of it* or the herbage, grass, or profits of the land demised, this is a void reservation, for it is parcel of the thing granted, and is not like where a man leases his manor and the like, except White Acre, for there the acre is not leased; but here the land is leased; therefore the reservation of the herbage, vesture, or the like, is void. It must be obsen-ed. however, that, though in Co. Lit. 47 a, the distinction between a reservation and an exception is pointed out, 540 WICKHAM V. HAWKER [CHAP. VIII yet in p. 143 a, speaking of the word rencrvalion, Lord Coke says, ' Sometime it hath the force of saving or excepting. So as sometime it serveth to reserve a new thing, viz., a rent, and sometime to except part of the thing in esse that is granted.' He does not, however, go on to illustrate that position; and as, only two pages before, in 142 a, he had said to the same effect as he had done in the former reference in 47 a, that ' a man upon his feoffment or conveyance cannot reserve to him parcel of the annual profits themselves, as to reserve the vesture or herbage of the land or the like, for that should be repugnant to the gi-ant,' we cannot take this language of Lord Coke in 143 a, as identifying an exception and a' reservation. " There are, however, some cases reported, where, in the language of the court, the word ' reserve ' is treated as meaning ' exception.' as in Dyer, 19 a, PI. 110. That, however, is only general language; and it does not make them the same in point of law. In the veiy late case of Fancy v. Scott, 2 Man. & Ry. 335, the defendant pleaded that the plaintiff was tenant to the defendant of the close in which, &c., subject to a reservation to defendant of all pits in the close, with liberty to carry away the produce of the pits; and Mr. Justice Bayley said it was not a reservation, but an exception, and held the plea bad; and the counsel for the defendant did not further press the argument. " It may be said, however, that, if the person who creates the power u.ses the word ' reserving ' in such a way as to make an exception a reservation, it must be so taken; but we think not necessaril3\ Powers in many respects are construed so very strictlj', that they must be so throughout. " But, besides, it is not necessarily to be taken that what relates to the wood and underground produce is a reservation ; there are other legal reserva- tions, besides rent, to satisfy the words 'rent and reservations; ' and when the testator, in the lease of 1756 mentions wood and underground produce, he says except and always reserved out oj this present demise and grant, all. &c.; and therefore if, in point of law, the matters are the subject of excep- tion, they must be applied to the legal term used. And in The Earl of Cardigan v. Armitage, 2 B. & C. 197, where Sir Thomas Danby enfeoffed the Earl of Sussex of certain closes, except and always reserved out of the said feoffment to the said Sir Thomas all the coals in all or any of the said lands, together with free liberty to sink and dig pits, &c., Mr. Justice Bayley, in delivering the judgment of the court upon the pleadings, says, this con- stituted an exception; and he states the distinction between an exception and a reservation, and then he goes on to point out the effect of an excep- tion upon the statement in the pleadings. " Upon all these authorities, we are of opinion that what is said as to the wood and underground produce is not a reservation, but an exception." — Per Lord Denmax, C. J., in Doe d. Douglas v. Lock, 2 A. & E. 705, 743-746 (1835). " It is to be observed that a right of way cannot, in strictness, be made the subject either of exception or reservation. It is neither parcel of the thing granted, nor is it issuing out of the thing granted, the former being essential to an exception, and the latter to a reservation. A right of way reserved (using that word in a somewhat popular sense) to a lessor, as in the present case, is, in strictness of law, an easement newly created by way of a grant from the grantee or lessee, in the same manner as a right of sport- ing or fishing, which has been lately much considered in the cases of Doe d. Douglas v. Lock, 2 A. & E. 705, and Wickham v. Hawker, 7 M. & W. 63. It is not indeed .stated in this case that the lease was executed by the les.see. which would be essential in order to establish the easement claimed by the lessors as in the nature of a grant from the lessee; but we presume that in fact the deed was, according to the ordinary practice, executed by both parties, lessee as well as lessors." — Per Tindal, C. J., in Durham R. R. Co. V. Walker, 2 Q. B. 940. 967. See Dawson v. Western Rd. Co., 107 Md. 70, 93. SECT. Ill] ASHCROFT V. EASTERN R. R. CO. 541 ASHCROFT V. EASTERN R. R. CO. 126 Mass. 196. 1879. Bill in equity, filed June 13, 1878, alleging that, on October 26, 1837, John Lovejoj conveyed to the defendant a parcel of land in Lynn, over which its railroad has been located, consisting of a strip twenty-eight feet in width; that said parcel has ever since been owned and used by the defendant ; that, by the terms of the deed, Lovejoy created and reserved, for the benefit of his adjoining land, an ease- ment in the land, namely, the right to receive water from a spring by aqueduct logs, through a culvert across the land conveyed to the defendant, on to the adjoining land which was then owned by Love- joy; that the plaintiff by mesne conveyances, had become the owner of said adjoining laud and buildings of Lovejoy, for the benefit of which the easement was reserved, which easement was conveyed with the land; that Lovejoy and his grantees, including the plaintiff, have used, without interruption or objection on the part of the de- fendant, the culvert and aqueduct for more than twenty years prior to the acts of the defendant hereinafter complained of; that the premises belonging to the plaintiff have been used for many years for morocco and tanning business, requiring a large supply of pure water, which, prior to the acts hereinafter complained of, has always been supplied by the aqueduct running through the culvert under the railroad; that in August, 1870, the defendant caused the culvert, under which the aqueduct logs were laid, to be filled with rocks and other obstructions, the weight and force of which crushed the logs, so that the water, which should have been conducted by them into and upon the premises of the plaintiff, overflowed, wasted and flooded said premises, and caused the tenant thereof to leave; that this over- flow of water was adjudged by the Board of Health of Lynn to be a public nuisance, in consequence of which the plaintiff was obliged to lay a drain to conduct away the water at great expense; that while these obstructions were being put in, and since then, the plaintiff frequently protested to the defendant against its action, and has repeatedly notified the defendant of the interference with his ease- ment and injury to his land, and has constantly demanded of it the restoration of his rights; but it has wholly neglected and refused to remove the obstructions and restore his rights ; that, in consequence of these acts of the defendant, the plaintiff is wholly deprived of the use and enjoyment of the aqueduct and the water therefrom, and has been prevented from carrying on his business; that the defendant is insolvent and unable to pay its debts in full, and all of its property is mortgaged to creditors for a much larger sum than its value, although the defendant is still in the legal possession of the property, and it has no property which can be come at to be attached or taken on exe- 542 ASHCROFT V. EASTERN R. R. CO. [CHAP. VIII cution in an action at law; that the acts of the defendant are an appropriation of a privilege, right and easement appurtenant to the plaintiff's land, of a continnons and permanent nature; and that the plaintiff has not a plain, adequate, and complete remedy at law. The prayer of the bill was that the defendant might be ordered to remove the obstructions, and to restore the aqueduct to its usual and former condition; that it might be decreed to pay to the plaintiff a sum of money sufficient to compensate him for the damage done ; that it might be perpetually restrained from obstructing or in any way interfering with the plaintiff's aqueduct; and for further relief. The defendant filed a plea alleging that the reservation in the deed of John Lovejoy to the defendant, dated October 26, 1837, w^as in the words following, and not otherwise : " Reserving to myself the right of passing and repassing, and repairing my aqueduct logs forever, through a culvert six feet wide and rising in height to the superstruc- ture of the railroad, to be built and kept in repair by said company; Avhich culvert shall cross the railroad at right angles with the south- easterly line of John Alley, 3d's land, seventy-four feet west of the northeasterly line of my land, measuring on the centre of the rail- road;" and also alleging that John Lovejoy died on September 12, 1876. Hearing before Ames, J., upon the bill and plea, who reserved the question of the sufficiency of the plea for the determination of the full court. Morton, J. The plaintiff's right to maintain this suit depends upon the construction of the clause in the deed recited in the de- fendant's plea. "We are of opinion that this clause must operate as a reservation, or by way of implied grant. The operation of an exception in a deed is to retain in the grantor some portion of his former estate, which by the exception is taken out of or excluded from the grant; and whatever is thus excluded remains in him as of his former right or title, because it is not granted. A reservation or implied grant vests in the grantor in the deed some new right or interest not before exist- ing in him. Shep. Touchst. 80. Stocl'hridge Iron Co. v. Hudson Iron Co., 107 Mass. 290. The clause we are considering does not merely reserve to Lovejoy a right of way and of maintaining aqueduct logs through the land granted. The privilege which the parties intended should vest in him was the right of passing and repassing, and of maintaining his aque- duct logs through a culvert to be built and kept in repair by the grantee. The provision that the grantee shall build and keep in re- pair the culvert is an essential part of the grant, and clearly indicates that the intention of the parties was to confer upon the grantor a new right not previously vested in him, and which, therefore, could not be the subject of an exception. SECT. Ill] DEE V. KING 543 It is well settled that, generally, tlie same rules of construction apply to a reservation or implied grant as to an express grant. In this case, the words used were, '' reserving to myself the right of pass- ing and repassing, and repairing my aqueduct logs forever through a culvert." This gave only an estate for life to Lovejoy. To create an estate of inheritance by deed to an individual, the land must be conveyed to the grantee and his heirs, and these necessary words of limitation cannot be supplied by other words of perpetuity. As stated by Wilde, J., in Curtis v. Gardner, 13 Met. 457, " a grant to a man to have and to hold to him forever, or to have and to hold to him and to his assigns forever, will convey only an estate for life." See also Dennis v. Wilson, 107 Mass. 591. It is not necessary to decide whether the easement created by the reservation was appurtenant to the remaining land of Lovejoy. As- suming it to have been so, this could not have the effect to extend its duration. Lovejoy might assign it, if appurtenant, by a deed of the remaining land, but it would expire with his life, whether assigned or retained by him. It follows from these considerations, that this bill cannot be main- tained. Lovejoy having died before this suit was commenced, the easement had ceased to exist, and the plaintiff" is not entitled to the relief prayed for in the bill. The defendant's plea, therefore, is sufficient. Bill dismissed.^ DEE V. KING 77 Vt. 230. 1905. Appeat. in Chancery. Heard on master's report and exceptions thereto at the March Term, 1904, Franklin County, Start, Chancel- lor. Decree dismissing bill. The orator appealed. This case has been once before in the Supreme Court, and the de- cree was reversed pro forma for the reason stated in the opinion in tliis case. See 73 Vt. 375, for further statement of the facts involved. Watson, J. When this case was here before (73 Vt. 375) the de- cree was reversed pro forma and the cause remanded for additional ' And see Kister v. Reexer, 98 Pa. 1. If the statute allows a fee simple to be created without the use of the word " heirs," a perpetual ea.^ement may be " reserved " without employing it. Ruhnke v. Aubert, 58 Oreg. 6; Forde v. Libbey, 22 Wyo. 464. See Kar- rmdler v. Krotz, 18 Iowa 352. Contra, Ross v. McGec, 98 Md. 389. The Massachusetts decisions are: Bowcn v. Conner. 6 Cn^h. 132; Dennis V. WUson, 107 Mass. 591; Bean v. French, 140 Mass. 229; White v. A'. F. & N. E. Rd. Co.. 156 Mus8. 181; Clatlin v. B. A- A. Rd. Co., 157 Mass. 489; Hamlin v. N. Y. t£- N. E. Rd. Co., 160 Mass. 459; Baileii v. Agaivam Bantc, 190 Mass. 20; Foster v. Smith, 211 Mass. 497; Childs v. B. & M. Rd. Co., 213 Mass. 91. 544 DEE V. KING [chap. VIII findings of fact by the special master, as to tlie time wlien, with reference to March 16, 1882, Jared Dee asked and obtained permis- sion of the defendant to cross his three-acre piece of hind on the east side of the Central Vermont Railroad. On the hearing before the master for this purpose, the orator introduced no further evidence. The defendant testified in his own behalf, and from his testimony the fact is found that Jared Dee first asked and obtained of the de- fendant permission to cross that land in January, 1882. The orator seasonably objected and excepted to the defendant's testifying to any conversation between him and Jared Dee on this point, because Jared Dee was dead. The defendant was called and used as a witness by the orator at the first hearing, upon the question, among other things, whether Jared Dee passed through and over the three-acre piece, his habit and custom in so doing, to what extent, under what circumstances, and for what purpose. The orator made the defendant a general witness upon that question, and he thereby waived the statutory incompe- tency of the defendant as a witness, — Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042; Ainsivorth v. Stone, 73 Vt. 101, 50 Atl. 805, — and he could not afterwards complain because the defendant gave testi- mony in his own behalf more fully upon the same subject matter. Jared Dee having obtained permission of the defendant to cross the three-acre piece within fifteen years next after March 16, 1867, the orator can have no prescriptive way over it. A right of way over this land is neither set forth nor claimed by the orator in his bill; yet in one aspect of the case whether he has such a way is material. The only right of way claimed by the orator over the defendant's land so far as appears by the bill, is over the one-half-acre piece on the west side of the Central Vermont Railroad, as reserved by Jared Dee in his deed dated October 7, 1862, conveying that land to Wil- liam W. Pettingill. In that deed immediately following the descrip- tion of the land conveyed is the clause " reserving the privilege of a pass from the highway past the house to the railroad in my usual place of crossing." The defendant contends that these words are only a reservation of a personal privilege to Jared Dee which could not pass to his heirs or assigns because no words of inheritance or assign- ment were used in connection therewith; while the orator contends that the clause has the force of an exception, and that the servient estate thereby created passed to the subsequent owners of the domi- nant estate without such words of limitation being used. Much de- pends upon the construction given in this regard, in the disposition of the case. Lord Coke says that " reserving " sometimes has the force of saving or excepting, " so as sometime it serveth to reserve a new thing, viz. a rent, and sometime to except part of the thing in esse that is granted." Co. Litt. 143 a. Sheppard says that " a reser- vation is a clause of a deed whereby the feoffor, donor, lessor, grantor. SECT. Ill] DEE V. KING 545 etc., doth reserve some new thing to himself out of that which he granted before. And this doth, most commonly, and properly, suc- ceed the tenendum, . . . This part of the deed doth differ from an exception, which is ever of part of the thing granted, and of a thing in esse at the time, but this is of a thing newly created or reserved out of a thing demised that was not in esse before, so that this clause doth always reserve that which was not before, or abridge the tenure of that which was before." Shepp. Toucli. 80. Again the same author says, that an exception clause most commonly and properly succeeds the setting down of the things granted; that the thing ex- cepted is exempted and does not pass by the grant, p. 77. The same principles were largely laid down by this Court in Roberts v. Robert- son, 53 Yt. 690. There the deed given by the plaintiff contained a specific description of the land conveyed, and a clause " reserving lots . . . 32, 33," etc. Under this clause the plaintiff claimed title to the two lots above named. The court, after stating the offices of an exception and of a reservation the same as above, said these terms, as used in deeds, are often treated as synonymous and that words creating an exception are to have that effect, although the word reservation is used. It was held that the clause should be construed as an exception. In England it has been held that a right of way cannot in strictness be made the subject of either an exception or a reservation; for it is neither parcel of the thing granted, an essential to an exception, nor is it issuing out of the thing granted, an essential to a reservation. Doe V. Lock, 2 Ad. & E. 705; Durham, Etc. R. R. Co. v. Walker, 2 Q. B. 945. But there, as in this country, (/j/a^Z-easements are recog- nized in law, such as a visible and reasonably necessary drain or way used by the owner of land over one portion of it to the convenient enjoyment of another portion, and there has never been any separate ownership of the qua^ i-dominant and the gua^j-servient tenements. As such easement, a drain is classed as continuous, because it may be used continuously without the intervention of man; and a right of way as non-continuous because to its use the act of man is essential at each time of enjoyment. In Barnes v. Loach (1879), 4 Q. B. D. 494, it was said regarding such easements of an apparent and con- tinuous character, that if the owner aliens the quasi-dominsint part to one person and the r/i/a., but the liability extends only to him and cannot, through him, extend to prior parties. The plaintiff is under the same disability as his grantor, since he is in privity with him. For these reasons the order should be affirmed and judgment abso- lute ordered for defendants on the stipulation, with costs. Parker, Ch. J., ITaioht, Landon, Cullen and Werxer, JJ., concur; Gray, J., concurs in result. Ordered accordingly. 586 NOKE V. AWDER [CHAP. IX C. Covenants hy Strangers to the Title. I^OKE V. AWDEE Cro. El. 373, 436. 1595. Covenant. "Wherein he shows that one John King made a lease for years to A. the defendant, who by deed granted it to Abel, and cove- nanted with him, that he and his assignees should peaceably enjoy it without interruption. Abel grants it to J. S., who grants the term to the plaintiff, who being ousted by a stranger, brings this action ; and after issue joined upon a collateral matter, and after verdict for the plaintiff, it was alleged in arrest of judgment, that this action lay not for the second assignee, unless he could show the deed of the first covenant, and of the assignment, and of every mean assignment ; for without deed none can be assignee to take advantage of any covenant, which cannot commence without deed ; and to that purj)Ose cited Old Act, 102; and 19 Edw. 2; Covenant, 25. And if one be enfeoffed with warranty to him his heirs and assignees, and the feoffee makes a feoffment over without deed, the assignee shall not take advantage of this warranty, because he hath not any deed of assignment. But if he had the deed, it should be otherwise; and to that purpose vide 13 Edw. 3, Vouch. 17; 3 Edw. 3, Monstrans de Fayts, 37; 11 Edw. 4, Ibid. 164; 15 Edw. 2, Ibid. 44; 13 Hen. 7, 13 and 14, 22 Ass. plea, 88. But PoPHAM held, that he shall have advantage without the deed of assignment; for there is a difference where a covenant is annexed to a thing, which of its nature cannot pass at the first with- out deed, and where not. For in the first case, the assignee ought to be in by deed, otherwise he shall not have advantage of the covenant ; and therefore he denied the case of the feoffee with warranty; for the second feoffee shall have benefit of the warranty, although he doth not show the deed of assignment, but shows the deed of the war- ranty ; and so is the better opinion of the books. And to that opinion the other Justices inclined. Sed adjournatur. Vide 3 Co. 63. It was now moved again. And all the Justices agreed, that the assignee shall have an action of covenant without showing any deed of the assignment ; for it is a covenant which runs with the estate ; and the estate being passed without deed, the assignee shall have the benefit of the covenant also: and the executor of the baron, who is assignee in law, who comes in without deed, shall have the benefit of such a covenant, as appears 30 Edw. 3, in SymTcins Simonds' Case. And PoPHAM and Fenner held, that a feoffee shall vouch by a war- ranty made to his feoffor, without showing any deed of assignment : for the deed of assignment is not requisite, nor it is to any purpose to show it; for it appears by the books, that being shown, it is not traversable by the vouchee. And as a warranty or covenant is not grantable, nor to be assigned over without the estate; so when the NOKE V. AWDER 587 estate passeth, althougli it be by parol, the warranty and covenant ensue it ; and the assignee of the estate shall have the benefit thereof. Coke, Attorney-General (who was of counsel with the defendant), said, that the law was clear as you have taken it, yet the declaration is ill; for he declares, quod cum Johannes King, 10 Eliz., let that to the defendant for years, virtute cujus he was possessed, and granted it to Abel by indenture with the covenant, who in 15 Eliz. assigned it to the plaintiff: and further allegeth, that long time before that the said J. K. had anything, one Robert King was seised in fee, viz., 7 Eliz., and so seised, died seised in 15 Eliz. and it descended to Thomas King, who entered upon the plaintiff and ousted him : so he doth not show that John King who made the lease had anything; for Kobert King was thereof then seised. And then when John King let to the defendant, and he granted his term by indenture, nothing passed but by estoppel; then the lessee by estoppel cannot assign anything over, and then the plaintiff is not an assignee to maintain this action. But admitting that J. K. had at the time of the lease made by him, a lease for a greater number of years, and that Robert King had the freehold, and thereof died seised, and so all might be true which is pleaded ; then the entry of Thomas King upon the defendant is not lawful. So quacunque via daia, this action cannot be maintained. And this point for the case of estoppel was adjudged in this court, in the case of Armiger v. Purcas, in a writ of error. And all the Cot^rt held here, that it was clear upon the matter shown, that the action lay not ; for the plaintiff ought to have shown an estate by descent in J. King, at the time of the lease and assign- ment made, or an estate whereby he might make a lease, and that this was afterwards determined ; and so confess and avoid the estate in the lessor, otherwise this action of covenant lieth not ; and it never lies upon the assignment of an estate by estoppel. Wherefore they were of opinion to have then given judgment against the plaintiff; but afterward they would advise until the next Term. — Note. This was continued until Trin. 41 Eliz., and then being moved again, all the Justices resolved, that the assignee of a lease by estoppel, shall not take advantage of any covenant; but that it shall not be intended a lease by estoppel, but a lawful lease. But no sufficient title being shown to avoid it, it is then as an entry by a stranger Avithout title, which is not any breach. Wherefore it was adjudged for the defendant.^ 1 See Rawle, Covenants for Title, 5th cd., §§ 232-236; 1 Smith, L. C, 11th ed., 95 et seq. 588 beddoe's executor v. wads worth [chap, ix ANDREW V. PEARCE, Executor of BEST 1 B. & P. N. R. 158. 1805. Sir James Mansfield, C. J.^ This is an action of covenant, and the declaration states that Peter Best in 1764 demised the premises in question for 99 years to John Garland, and covenanted that he had good right to make such demise, and that Garland should quietly enjoy the premises during the said term; that Garland in 1791 assigned to Bennett, and Bennett in 1801 assigned to the plaintiff, who was ejected by Thomas Pearce under a title superior to that of Peter Best. The plea states that Peter Best, at the time of the de- mise, was seised of the premises in tail male, and, before the assign- ment by Bennett to the plaintiff, died so seised without heirs male of his body, whereupon the term of years ceased and determined. Upon these pleadings, it is clear that Peter Best had no power to make a demise of these premises to continue for 99 years if he should die without issue male ; but that it was a good lease so long as he should live, and he might have lived till the end of 99 years. On this de- murrer every fact is admitted. It is clear, therefore, that at the time when Bennett assigned to Andrew, Bennett had no interest in the premises; the lease is stated to have become absolutely void by the death of Peter Best without heir male. The lease then having be- come absolutely void, what could be the operation of the assignment by Bennett to Andrew? He could neither assign the lease nor any interest under it, because the lease was gone. "What right of any sort had Bennett? If anything, it could only be a right of action on the covenant, and that could not be assigned by law. As the person who made the assignment had no interest in the premises, the assignment itself could have no operation. Consequently there IS no ground upon which the present action can be maintained, and therefore judgment must be given for the defendant. Judgment for the defendant.^ BEDDOE'S Executor v. WADSWORTH 21 Wend. (N. Y.) 120. 1839. Demurrer to declaration. This was an action on covenants of warranty and for quiet enjoyment, contained in a deed of land, dated July 7th, 1797, executed by the defendant to John Johnston. Each count (there being six in all) averred that afterwards, viz., on the same day, the defendant by Johnston's direction, and with his con- 1 Only the opinion is given. •^ Compare Cuthbertson v. Irving, 4 H. & N. 742. beddoe's executor v. wadsworth 589 sent, surrendered ^possession of the land to the testator, John Beddoe, who continued in possession until Johnston, on the 16th August, 1802, by indenture, in consideration of one dollar, therein expressed as in hand paid by Beddoe, did " reraise, release, and forever quit- claim unto the said John Beddoe, his heirs and assigns forever, all the right, title, interest, claim or demand, which the said John John- ston, &c., had in or to the said tract, &c., to have and to hold the said tract, &c., unto the said John Beddoe, his heirs and assigns forever, to his and their own proper use, benefit and behoof, &c." Each count stated an eviction from part of the premises, while in possession of persons claiming under John Beddoe, the plaintiff's testator, and during the lifetime of the testator. The eviction was alleged to have been in virtue of a title in one Rachel Malin. All the counts except the sixth stated this title to be paramount to the defendant's; and all except the fifth averred that the plaintiff, as executor, had thereby incurred damages and costs. The fifth count averred that the testa- tor in his lifetime, and the plaintiff since his death, had been obliged to pay them. The first and second counts averred that the defendant's deed to Johnston was given to and received by Johnston for and in behalf of Beddoe, the testator, and for his benefit. All the counts except the third, concluded as for a breach of the covenant for quiet enjoyment only; the third was for a breach of the covenant of warranty only. But the deed as set forth in each count in fact contained covenants of seisin, of warranty, for quiet enjoy- ment, and further assurance. The defendant demurred to each count. By the Court. (Cowen, J.) If the covenants of w^arranty and for quiet enjoyment passed by the quitclaim deed from Johnston to the plaintiff's testator, the right of action sought to be shown by the declaration seems to be clear in all the counts except the sixth. This count is defective in not averring that the eviction was by a title paramount to that of the defendant. Wehh v. Alexander, 7 Wendell, 281; Luddington v. Pulver, 6 Id. 404 to 406; Greenhy v. Wilcocks, 2 Johns. R. 395; Ellis v. Welch, 6 Mass. Rep. 246; per Savage, C. J., in Richert v. Snyder, WcmhU'II, 421, 422; 4 Kent's Com. 479, 3d ed. Non constat but Rachel Malin may have proceeded to eviction upon a right derived from Johnston or the testator himself. In the other five counts, however, there is enough to show that during the lifetime of Beddoe the testator, he either became personally liable on cove- nants to his grantees as to a part of the premises from which they were evicted by a title superior to the defendant's, or suffered an injury in an eviction of his tenant by a like superior title. Then it is averred either that the plaintiff was compelled to pay damages and costs as executor, or, according to the fifth count, the testator in his lifetime was obliged to pay a part, and the plaintiff another part after his death. In either case, the right of action pertained to the testator personally. The covenant was broken by the eviction, and 590 beddoe's executor v. wadsworth [chap. IX the whole damnges were due (Ilosmer, C. J., in Mitchell v. Warner, 5 Conn. R. ,504 to 506), the right to which passed on his death, not to his heir, but to his personal representative. Hamilton v. Wilson, 4 Johns. R. 72. A covenant real ceases to be such when broken, and no longer runs with the land. It would not go to the heir by death, for the same reason that it could no longer follow the land into the hands of a devisee or grantee. See Marhland v. Crump, 1 Dev. & Bat. 94, 101 ; Kingdon v. Nottle, 1 Maule & SeL 355 ; s. c. 4 Id. 53. This view of the case disposes of all the minor objections raised by the demurrers. There must be judgment for the defendant on the sixth count, and for the plaintiff on all the others, unless either the first or second point taken by the defendant's counsel is sustainable. These are each applicable to the remaining five counts. The first point is, that it appears from five of the counts, that when the defendant conveyed to Johnston, he, the defendant, had no title; and as no estate therefore passed to the plaintiff's testator, the cove- nants were not assigned; that covenants pass only as incidents to an estate; and if there be none, the covenants cannot be said to be annexed to an estate, much less to pass with it. The point seems to suppose that these covenants can never be transferred where there is a total want of right in the original covenantor, though his deed transfer the actual possession. It seizes on the phrase in 4 Kent's Com. 471, note b, 3d ed., and other books, " that they cannot be sepa- rated from the land and transferred without, but they go with the land as being annexed to the estate, and bind the parties in respect to privity of estate." N"o ISTew York case was produced which denies that they pass where the possession merely goes from one to another by deed, and there is afterwards a total failure of title ; but there are several to the contrary. Withy v. Mumford, 5 Cowen, 137 ; Garloch V. Closs, 5 Id. 143, n. And see Marhland v. Crump, 1 Dev. & Bat. 94; Booth v. Starr, 1 Conn. R. 244, 248. Nor, when we take the word estate in its most comprehensive meaning, can it be said there IS none in such a case to which the covenant may attach. It is said by Blackstone to signify the condition or circumstance in which the owner stands with respect to his property (2 Black. Com. 103), and a mere naked possession is an imperfect degree of title, which may ripen into a fee by neglect of the real owner Id. 195, 6. It is, in short, an inchoate ownership or estate with which the cove- nants run to secure it against a title paramount; and in that sense IS assignable within the restriction insisted upon. It is said in sev- eral cases that the covenants of warranty and quiet enjoyment refer emphatically to the possession and not to the title. Waldron v. M'Carthy, 3 Johns. R. 471, 3, per Spencer, J.; Kortz v. Carpenter, 5 Id. 120. The meaning is, that however defective the title may be, these covenants are not broken till the possession is disturbed. When the latter event transpires, an action lies to recover damages for the failure both of possession and title according to the extent of such failure. beddoe's executor v. wadsworth 591 The case of Bartholometv v. Candec, 4 Pick. 167, was mainly re- lied upon in support of the ground taken by the first point. All that ease decides is, that a covenant no longer runs with the land after it is broken. The declaration was by the grantee of one Thorp, to whom the defendant had conveyed in fee with covenants of seisin and warranty, and breaches were assigned upon both. The defendant pleaded and the jury found, that before the defendant conveyed to Thorp, he had conveyed to one Sparks, who entered and died actually seised, leaving the land to his children, who were still actually seised when the defendant conveyed to Thorp. Mr. Justice Wilde arrives at the conclusion that the covenant of seisin was broken before the deed from Thorp to the plaintiff; and adds: " This point being estab- lished, it is perfectly well settled that no action will lie on this con- tract in the name of the assignee. By the breach of the covenant of seisin, an action accrued to the grantee, Avhich, being a mere chose in action, was not assignable." lie does not notice the covenant of warranty, but seems to consider the claim under that as standing on the same ground; which I think might well lie under the pleas as found by the jury. The fair import of these was, that neither Thorp nor the plaintiff ever had possession; so that, according to some cases, the covenant of warranty was also immediately broken ; Duvall V. Craig, 2 Wheat 45, 61, 62; Randolph v. Meal, Mart. & Yerg. 58; and according to our own it never could have any effect. Xo posses- sion ever having been taken under the deed, there could be no actual eviction, which is said to be essential to a recovery upon a covenant of warranty. We])h v. Alexander, 7 Wendell, 281 to 284, and the cases there cited; Jacl'son ex dem. Montressor v. Rice, 3 Wendell, 180, 182, per Savage, C. J.; Vanderl-arr v. Vanderl-arr, 11 Johns. R. 122. See a very full collection and consideration of the cases to this point, both as it respects the covenant of warranty and for quiet enjoy- ment, by Hosmer, C. J., in Mitchell v. ]Varner, 5 Conn. R. 521 to 527. That an unbroken covenant of warranty shall run with the posses- sion of the land, was not questioned by counsel or court in Bartholo- mew V. Candee, nor was it in a subsequent and similar case, Wheeloch V. Thayer, 16 Pick. 68, also relied upon. T have looked through the other cases cited by the counsel for the defendant, and they all go to tlie i)oiiit, either that a covenant broken ceases to be assignable, or that covenants in gross are not so. These positions are indisputably settled; and we have adopted the first, in order to show that this action was properly brouglit by Jolm Beddoe's executor instead of his heir. I do not except from this remark the case of Andrew v. Pearce, 4 Bos. & Pull. 158. It is true that was an action on cove- nants both that the defendant had authority to demise and for quiet enjoyment. The title failed before the plaintiff took an assign- ment; he entered and was ousted; and it was held that he could not recover, because the mere failure of the title broke the covenants. Mansfield, C. J., said expressly, the assignor had only a right of 592 beddoe's executor v. wadsworth [chap, ix action loft, which he could not assign. It would seem by this case that in England a similar failure of title, without eviction, would be a breach of the covenant for quiet enjoyment. "With us the doctrine is clearly otherwise. Kortz v. Carpenter, 5 Johns. R. 120; Norman V. Wells, 17 Wendell, 160, and the cases there cited; and see Mitchell V. Warner, 5 Conn. R. 497, 522, and the very full reference there to the New York cases. In Andrew v. Pearce, the lease was treated as totally gone, by a failure of the title; whereas there was still a continuing possession, till the plaintiff was ousted, and then and not till then, according to our cases, was the covenant for quiet enjoy- ment broken. There is a difference in more respects than one between our own and the English cases as to what shall constitute a breach of the covenants of title, so as to take away their assignable quality. Even a covenant of seisin, made and broken in the same breath, is there held to run with the land, till actual damages are sustained by the breach. Kingdon v. Noftle, 1 Maule & Sel. 355; 4 Id. 53. Kent's Com. 471, 2, 3d ed., says the reason assigned for the decision is too refined to be sound. The case is followed by Backus' Admr. v. McCoy, 3 Ham. Ohio K. 211; but severely critised in Mitchell v. Warner, 5 Conn. R. 497 to 505. Kent's Com. ut supra, note a. But secondly, if the covenant be in its own nature available to the assignee as a protection against the total failure of the defendant's title, and if it be assignable by a grant of the land, it is insisted that none of the counts in the declaration show that such a grant was made from Johnston to the plaintiff's testator. All the counts stop with averring that Johnston, for the consideration of one dollar, remised, released and forever quitclaimed to the testator in fee. Technically, these are but words of release ; and as no previous lease from Johnston to the testator is shown, it is supposed that the grant- ing words are inoperative. This objection supposes that the words used cannot carry the estate except as part of a conveyance by lease and release; and that, in order to give them effect, a lease should be shown, either by its production and proof, in the usual way, or its recital in the release; and this formal strictness would seem still to prevail in Engknd. Doe ex dem. Pemher v. Wagstaff, 1 Carr. & Payne, 477. In Bennett v. Irwin, 3 Johns. R. 365, 366, Van Ness, J., said, a mere release or quitclaim, unless the releasee is in posses- sion, is void. But the declaration, in the case at bar, shows that the grantee was in possession. Even this strictness was, however, totally exploded, by the case of Jackson ex dem. Salishury v. Fish, 10 Johns. R. 456, the operative words as set forth in the declaration being held of themselves sufficient to raise and execute a use under the Statute. The conveyance was there held good as a bargain and sale. Had that case occurred to counsel, we should doubtless have been saved the examination of this objection; for we do not remember its being denied on the argument that words which are sufficient to pass a fee in conveyancing are equally sufficient in pleading by way of averment. SLATER V. RAWSON 593 The demurrers are overruled as to all the counts except the sixth, and judgment must be given for the plaintiff. The demurrer to the sixth count is well taken, and judgment must be given for the defendant as to that count, with leave to both parties to amend. SLATER AND Another v. EAWSON" 1 Met. (Mass.) 450. 1840. Dewey, J.^ This is an action to recover damages for the breach of certain covenants in a conveyance of land made by the defendant to Samuel Slater and John Tyson, through whom, by sundry con- veyances, the plaintiffs derive their title as assignees and subsequent purchasers. The covenants in the deed of the defendant are in the usual form, embracing the covenants of seisin and right to convey, a covenant against encumbrances, and also a covenant of warranty. The breach alleged in the declaration is, that one Elisha Jacobs, having an elder and better title than that of the defendant, entered upon the land, claiming title thereto, and that the plaintiffs, admit- ting his superior title, voluntarily surrendered the possession to him. To establish the title of Jacobs, the plaintiffs offered in evidence a deed from one John Rawson to William Sears, dated May 6th, 1782, and sundry other deeds conveying this title, as derived from Sears, and vesting it in Jacobs. The defendant admitted that the deed from John Rawson was' prior in time, to that under which he claimed to have acquired title; but he contended that the deed of Rawson to Sears did not include the land which the plaintiffs had thus volun- tarily surrendered to Jacobs. This presented a question of boundary, and much evidence thereon was submitted to the jury.- The only other question, upon which any opinion in matter of law was given at the trial before the jury, was upon the subject of damages. The jury were directed, if they should find for the plain- tiffs, to assess the damages at the value of the land at the time of the voluntary surrender of it by the plaintiffs upon the entry by Jacobs, with interest from that time; and this, as we understand, is not dcMiied by the defendant's counsel to be the correct rule for assess- ing the damages, if tlie plaintiffs can maintain their action. But upon the argument before us, upon the case as stated by the ])artits, the defendant insists, that as he was not seised of the land, which is now the subject of controversy, at the time he executed the deed to Slater and Tyson, and so nothing passed by his deed to his immedi- ate grantees, and they therefore could pass no estate, nor any cove- nants, to an assignee, which would authorize an action in his own name, he is not liable to the plaintiffs, to any extent, on his covenants. 1 The opinion only is given. 2 The part of the opinion relating to the question of bovmciaiy is omitted. 594 SLATER ?;. RAWSON [CHAP. IX Tlio (listiiK'tion as to tlie legal oiToct of the different covenants usually introduced into our conveyances, however little it may have been understood or regarded prior to the cases of Marston v. Hobhs, 2 Mass. 433, and Bickfoi'd v. Page, 2 Mass. 455, is now very well settled. The covenants of seisin and right to convey are to all practical purposes synonymous covenants; the same fact, viz. the seisin in fact of the grantor, claiming the right to the premises, will authorize both covenants, and- the want of it is a breach of both. But upon these covenants no action can be maintained in the name of an assignee or subsequent purchaser; for if broken at all, they are necessarily broken at the moment of the execution of the deed; and not running with the land, they do not pass by a subsequent conveyance of the land. The covenant of warranty, on the other hand, is a covenant running with the land, and may be made avail- able to a subsequent purchaser, however remote, if the conveyances are taken with proper words to pass the covenant. But to support an action by an assignee, on the covenant of warranty, it is neces- sary that the warrantor should have been seised of the land ; for, by a conveyance without such seisin, the grantee acquires no estate, and has no power to transfer to a subsequent purchaser the covenants in his deed ; because, as no estate passes, there is no land to which the cove- nants can attach. If therefore the defendant, at the time of the making of his deed to Slater and Tyson, was not seised, then the covenant of warranty did not pass to the plaintiffs as assignees, and the only liability of the defendant is upon his covenant of seisin, which covenant, for the reasons already stated, is wholly unavailable to the plaintiffs. It is to be taken as established by the finding of the jury, and is also in accordance with the pleadings on the part of the plaintiff, that the defendant, at the time of making his conveyance, had no legal title to the twenty-two acres of land, which the plaintiff has yielded up to the claim of Jacobs; but that the title to the same was then, and had been for a long period previously, in William Sears and those claiming under him. The further inquiry then is, whether the defendant was seised in fact of these premises, claiming right thereto, at the time of executing his deed to Slater and Tyson. The case, as stated by the parties, in the report, finds that the premises, which are the subject of this controversy, were a part of a large tract of woodland unenclosed by fences, and of which there had been no actual occupation by any of the parties. Taking these facts to be correctly stated, there was clearly no seisin in fact, in the defendant, acquired by an entry and adverse possession. The rule, as to laiids that are vacant and unoccupied, that the legal seisin fol- lows the title, seems to be applicable here; and having ascertained in whom is the legal title, that also determines in whom the seisin is. But the plaintiffs have alleged in their declaration, and established by their evidence, the fact that the legal title to the land surrendered SLATER V. RAWSON 595 was not in tlie defendant at the time of the execution of the deed by him but was in those who cLaim under William Sears. It being thus shown that there was no seisin in fact, nor any legal title to the prem- ises in the defendant, it necessarily follows that the covenants of seisin and right to convey were broken, and that nothing passed to Slater and Tyson, which they could transfer to the plaintiffs as the foundation of an action in their own name. The covenant of seisin was broken at the moment of the execution of the deed, and became a mere chose in action not transferable; and the covenant of war- ranty is wholly ineffectual, as no land passed to Avhich it could be annexed; and the result, therefore, from this view of the case, is that the plaintiff cannot maintain his action. It was said in the argument, that the defendant should be estopped to deny his seisin, and thus avoid the covenant of warranty, because by his own deed he has affirmed it, and that should be conclusive against him. Without deciding whether such estoppel might or might not, under any circumstances, be interposed where there are various covenants in a deed, and the party be thus subjected, at the election of the covenantee, to damages different from those which the law has prescribed for the covenant which is actually broken ; or, in the case of an assignee, to allow him to recover for the breach of a covenant which is shown in fact never to have passed to him ; it seems to us clear, that in the present case no such objection can avail, as the plaintiff, in his declaration, and by his own showing, has estab- lished the fact that the defendant had neither the seisin nor the legal title to the land conveyed. It was further suggested, upon the argument, that the ground of defence now principally relied on, that the covenant of warranty did not pass to the plaintiffs, in consequence of the want of seisin in the defendant, is not open to the party; not having been presented in this form at the trial before the jury. As a general rule, questions must be raised at the trial, or they will not be open here; and for the very obvious reason, that the opposite party may have the proper oppor- tunity to supply any defects in his proof upon the points excepted to. But as, in the present case, the facts, as stated in the report, and as they appear to be conceded by both parties, show the objection, now urged and relied upon in defence, to be one that could not be obviated by any further proof on the part of the plaintiff, the court have felt themselves autliovized to consider that point as open, and have disposed of it in the manner already stated. The result is, thei'efore, that upon the case as now stated, the plaintiff cannot maintain his action. New trial ordered.^ 1 On the new trial, the case was saved for the consideration of the full court, and it was hchi that, the defendant being proved to hnve been in pos- session of the land at the time of his deed to Samuel Slater and John Tyson, his covenant ran with the land to their assignees, s. c. 6 Met. (Mass.) 439. See Libby v. Hutchinson. 72 N, H. 190. 596 WEAD V. LARKIN [CHAP. IX WEAD V. LARKIN et Al. 54 111. 489. 1870. Appeal from the Circuit Court of Cook County; the TZon. E. 8. Williams, Judge, presiding. This was an action of covenant, brought by Joshua Larkin and others against George F. Handing and Hezekiah M. Wead. The declaration alleges the breach of a covenant of warranty contained in a deed of conveyance, executed by the defendants to Curtis Worden and Albert Worden, and that the father of the plaintiffs, by con- veyance from those grantees, became the assignee of their title, and of the covenant of warranty, and that the plaintiffs succeeded to the same rights by the death of their father. The form of the covenant counted on is as follows : "And we, the said George F, Harding and H. M. Wead, for ourselves and our heirs, do covenant to and with the said Curtis Worden and Albert Worden, their heirs and assigns, that we will forever warrant and defend the title to said tract of land against all patent titles what- ever, and against none other." A trial resulted in a finding and judgment in favor of the plaintiffs. The case is brought to this court by appeal. The appellant contends that the action will not lie, because, at the time they executed the deed containing the covenant sued upon, the covenantors were not in actual possession of the land, and had no estate in it of any kind, and therefore the covenant did not run with the land, and the grantee of the immediate covenantee cannot sue. Mr. Chief Justice Lawrence delivered the opinion of the court : This case has been twice before this court, and will be found re- ported in 41 111. 415, and 49 111. 99. The facts are set forth in the opinion in 41 111. and it is unnecessary to repeat them here. After a third verdict and judgment against the defendants in the Circuit Court, they again bring the record here and submit it upon a ques- tion which has not hitherto been raised. It is now for the first time claimed, that the action will not lie, because the defendants, at the time they executed the deed containing the covenant upon which they are now sued, were not in actual possession of the land, and had no estate in it of any kind. It is contended, in such cases, the covenants in a deed do not run with the land, because there is no estate to which they can attach, and, therefore, the grantee of the immediate convenantee cannot sue. It is true, it has been held by the current of authorities, that the covenants of seisin, of a right to convey, and that the land is free from encumbrances, being in presenfi, if broken at all, are broken as soon as made, and becoming at once mere choses in action, do not run with the land, or, in other words, do not pass to the grantee of the immediate covenantee. But, even on this point, there is some WEAD V. LARKIN 597 contradiction in the authorities, the King's Bench having held, in Kiiigdon v. Nottle, 1 Maule & S. 355, and 4 lb. 53, that the assignee might sue, on the ground that the want of seisin is a continuing breach. So, too, it was held in Admr. of Backus v. McCoy, 3 Ohio, 211, that the covenant of seisin runs with the land, so long as the purchaser and the successive grantees under him remain in posses- sion, and the rule is enforced by the court with very cogent reasoning. But if it be true that these covenants in presenti cannot be made the basis of an action by the assignee, it is not denied that the cove- nant of warranty, which is the covenant in the case at bar, runs with the land and protects the grantee of the covenantee. This Avas settled in Spencer's Case, 5 Coke, and has probably never since been denied. It is claimed, however, in behalf of appellant in the present case, that, although this covenant runs Avith the land, yet, if the covenantor has neither actual possession nor legal title, there is no estate to which it can attach, and it does not pass to the grantee of the covenantee. In support of this position, counsel cite the case of Slater v. Raiv- son, 1 Mete. 456, and it must be admitted, this doctrine is there announced. The court say : " To support an action by an assignee, on the covenant of warranty, it is necessary that the warrantor should have been seised of the land, for by a conveyance without such seisin, the grantee acquires no estate, and has no power to transfer to a subsequent purchaser the covenants in his deed; because, as no estate passes, there is no land to which the covenants can attach." It is, however, admitted by the court, that if the covenantor is seised in fact, though without title, the covenant does attach and pass to the assignee, and when the same case came again before the court, at a subsequent term, as reported in 6 Mete. 442, the plaintiff was allowed to recover, on the ground, that the covenantor had cut timber and hoop poles from the land, and thus had such a seisin as caused his covenants to attach to the land and pass to the grantee of the cove- nantee. Notwithstanding our great respect for that court, this seems to us a very striking instance of the sacrifice of substance to shadow — the true meaning and spirit of a rule, to the mere form of words in which it has been found convenient to express it. A reason at least technically sound, whether in fact satisfactory or not, can bo given why covenants in presenti do not pass to the assignee. Tlie reason assigned for this rule by the courts which main- . tain it, is, as already stated, that these covenants, if broken at all, are broken as soon as made, and the covenantee thus acquires a mere chose in action, which, under the rules of the common law, cannot pass to an assignee by a conveyance of the land. But not so with the covenant of warranty. That operates only in fiituro, and is only broken by eviction. It is admitted that it attaches to the land and passes to the assignee, if the covenantor has a seisin in fact, though a wrongful seisin. Why, then, should it not pass to the 598 WEAD V. LAllKIN [CHAP. IX assignee of the covenantee, if tlie land is vacant at the time the covenant is made, and the covenantee, as in the present case, enters under his deed and then conveys? If the land were adversely held at the time of the first conveyance, and if the common law, render- ing such a conveyance void, were still in force, it might be said, the covenants were void. as to the covenantee. But it is admitted in the case at bar, as it was in the Massachusetts case, that the cove- nant was a valid covenant to ihe covenantee, even though the cove- nantor was not in possession of the land. But, it was said it did not pass to the assignee, because it attached to the estate, and the assignee took no estate. Yet, if a wrongful seisin on the part of the assignor would cause it to attach to the estate, and pass to remote grantees, and if, in the absence of seisin by the covenantor, the cove- nant was valid to the covenantee, as is admitted, we should like to inquire why, as soon as the covenantee took possession of the vacant land, the covenant did not then at once attach to the land, and pass with the conveyance of the covenantee? If the question of posses- sion is at all important in reference to the passing of this cove- nant to an assignee, it is not the possession of the covenantor that is material, but that of the covenantee when he makes his conveyance. Then is the first time that the covenant passes as attached to the estate. When first made, it is made to the covenantee directly and in person, and he takes its benefit by virtue of his contract, and not as an incident to the estate. It can certainly never be held, that if he takes possession and is evicted by paramount title, he cannot re- cover, because the land was vacant when the deed was made to him. Even then, if we concede that he must take possession before he can pass the covenant to his grantee, as attached to the land, we are wholly unable to see why it does not pass if he has taken possession, or what the possession or non-possession of the covenantor, when the covenant was made, has to do with its passing to the grantee of the covenantee. The cases of Moore v. Merrill, 17 N. H. 81; Beddoe's Exrs. V. Wadsworth, 21 Wend. 120, and Fowler v. Poling, 6 Barb. 166, cited by counsel for appellant, so far from being inconsistent with the position we have here taken, seem rather to support it. The last case was first heard at special term before a single judge, and is reported in 2 Barb. 306. It was held, as in the Massachusetts case, that as the covenantor had no possession, the covenant did not pass to the assignee. An appeal was taken to the General Term, and it was there held, the conveyance by the covenantee in possession passed the covenant to the assignee. The case of Neshift v. NeshiU, 1 Taylor N. C. Rep., also cited by counsel for appellant, was one in which the grantors, by the face of their deed, did not purport to convey their own land, but that of their daughter, and covenanted that she should make good the title on her coming of age. The court held the covenants were collateral to the title, and did not pass to the assignee. The decision is based on WEAD V. LARKIN 599 the peculiar character of the deed and covenants. The question was, whether the covenants in the peculiar deed before the court could pass to an assignee, and did not turn upon the question of possession. Our conclusion is, that where the covenantee takes possession and conveys, the covenant of warranty in the deed to him will pass to his grantee, although the covenantor may not have been in possession at the time of his conveyance. This is the case at bar. It is not, however, to be supposed, because we do not now lay down a broader rule than is required by the case before us, that we hold, by implication, the covenants would not pass if the immediate cove- nantee should convey before taking possession. On the contrary, it would much better comport with the interests of this State, where vacant lands are so largely an article of commerce, to hold that the covenantor, whether sued by an immediate or remote grantee, is estopped by his deed from denying that he had an estate in the lands to which his covenants would attach, and which would pass by deed. The covenant, it is true, passes to the assignee as appendant to the land, but this does not mean the actual title to the land, for, in such cases no covenants would be needed. They are intended as a protec- tion to the covenantee and his assignees, in case the covenantor has no title, and it is a very extraordinary mode of reasoning which leads to the conclusion, that, if the covenantor's want of title is also accompanied by a want of possession, for that reason he should be excused from liability to the remote grantee. We should be inclined rather to say, tliat although the covenant of warranty is attached to the land, and for tjuit reason is said, in the books, to pass to the assignee, yet this certainly does not mean that it is attached to the paramount title, nor does it mean that it is attached to an imperfect title, or to possession, and only passes with that, but it means, simply, that it passes by virtue of the privity of estate, created by the suc- cessive deeds, each grantor being estopped by his own deed from denying that he has conveyed an estate to which the covenant would attach. In the case at bar, the defendants conveyed to the Wordens, and in their deed covenanted with them, their heirs and assigns, that they would forever warrant and defend the premisesv against patent titles. The land was then vacant. The Wordens took possession under their deed, and subsequently sold and conveyed to Larkin, and delivered to him the possession. An action of ejectment was brought against ■ him, pending which he died, and his heirs, the present plaintiffs, hav- ing been made parties, judgment passed against them, and they were evicted by a paramount patent title. The covenant of warranty in defendant's deed was never broken until then. It was never a mere chose in action in the hands of the immediate covenantees. No one but these plaintiffs has ever had, or can have, a right of action on this covenant. If they cannot have it, the covenant which was in- serted in the* deeds of defendants, in order to give perpetual security 600 WEAD V. LARKIN [CHAP. IX to both immediate and remote grantees, has become a dead letter. And why? Tlie only reason that can be given is, because the cove- nantors, instead of having a partial title or a tortious possession, had no title nor possession of any sort. Their security is to be found in the completeness with which their covenant has been broken. The reasoning does not commend itself to our judgment. Judgment affirmed} 1 TiJlolson V. Pritchard, 60 Vt. 94, accord. See Wallace v. Pereles, 109 Wis. 316. CHAPTEK X EXECUTION OF DEEDS SECTIOIs^ I SIGNING AND SEALING COOCH AND Another v. GOODMAIT 2 Q. B. 580, 596-598. 1842. Lord Denman, C. J. said : " The first question is, -whether it is necessary by the Statute of Frauds that a lease under seal should also be signed. The words of the first section are, ' all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages,' &c., ' made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at Avill only.' " The plea in this case is framed in the very words of the plea in the case of Cardwell v. Lucas, 2 M. & W. Ill, in which it does not seem to have occurred to the court or the counsel that the words ' signed by the parties' &c., might apply only to instruments not under seal. It is now argiied, that inasmuch as the previous words are ' made or created by livery and seisin only, or by parol,' the dis- tinction apparently intended to be established by the Statute of Frauds was between estates or interests created by a formal instru- ment, and those created by mere matter in pais, which must be estab- lished by the fallible recollection of witnesses. Mr. Justice Black- stone, in his Commentaries, vol. ii. p. 306, lays it down that the Statute of Frauds has restored the old Saxon form of signing, and superadded it to sealing and delivery in a case of a deed. Mr. Pres- ton, on the other hand, in his edition of Sheppard's Touchstone, p. 56, note 24, treats this passage in Blackstone as a mistake from not attending to the words of the Statute, and holds it clear that no signature is necessary in the case of a deed. It is curious that the question should now for the first time have arisen in a court of law, and perhaps as curious that it is not necessary now to determine it; for although the plea negatives signature only, and not sealing or delivery, by the plaintiffs and the deceased, yet it appears by the indenture, as set out on oyer, and thereby become part of the declara- tion, that it was not sealed by the plaintiffs." ^ 1 See Cherry v. Heming, 4 Exch. 631, 636; 1 Williston, Contracts, § 206. 601 602 LORD SAY AND SEAL's CASE [CHAP. X LORD SAY AND SEAL'S CASE 10 Mod. 40. 1711. Upon a trial at bar in tlie Court of Queen's Bench, in an ejectment brought by the heirs at law against the Lord Say and Seal, who claimed as heir in tail; The single question was, Whether or no a common recovery that was suffered in order to dock the entail, was good or not ? The objection to the recovery was, that there was no tenant to the prcecipe. To prove the recovery good, a deed bearing date of the twenty-third of October, 1701, directing the uses of the recovery, and the fine, viz. the chirograph of the fine, and common recovery, were produced. [The court held that the fine had created a good tenant to the prcecipe. This part of the case is omitted.] After this, there was a deed of bargain and sale enrolled produced, which would have made a good tenant to the prcecipe had the opinion of the court been against the plaintiffs, as it was for them. But to this deed this objection was made, that it was a tripartite deed, and ran to this effect : " This indenture, made the day of , between of the one part, and of the second part, and of the third part, witnesseth, That for and in consideration of the sum of five shillings, to him in hand paid, hath given and granted, 6:c." N^ow here they said the person granting is wanting, " hath granted," without saying who hath granted, and consequently this deed passes nothing, and can therefore make no tenant to the prcecipe. The court was of opinion, that the deed was good. Had this been a tripartite deed, without this slip, there had been no doubt at all in the case; but the deed is tripartite, and "hath" in the singular number, and therefore all the doubt is to whom the " hath " refers. Deeds are to be interpreted, as much as possible, according to the intention of the parties. The case of Has! e wood v. Mansfield, 2 Vent. ]96, was a case upon pleading, where greater strictness is required, and therefore does not come up to the case in point. .The case of Tretheivy v. Ellesdon, 2 Vent. 141, does. Many are the instances where the penalties of bonds are put into very strange and even false Latin, and yet held good. See 1 Salk. 462 ; 3 Salk. 74. The case in question is the case of a bargain and sale, and therefore to be interpreted more favorably than a deed. By the common law, nothing passed by deed of bargain and sale but the use, and the remedy was only in chancery; but now Statute-law has passed the estate to the use. The intention of the deed is plain, if this deed do not make Lord Say grantor, as to him it would have no effect at all, who yet sealed it. According to the common rules of in- SECT. l] CATLIN V. WARE 603 denture, the words of the deed are the words of all the parties, but Lord Say is a party, therefore he has granted. The truth of the matter was, that it being feared this slip in the deed would be fatal to the recovery, this other contrivance of the fine was judged to be the best way of supporting it. Though the opinion of the court was clear and plain for the plain- tiffs in both points, yet the Lord Say and Seal prayed a bill of exceptions.^ CATLIX V. AVAKE 2 9 Mass. 218. 1812. This was a Avrit of dower, to which the tenant pleaded in bar: — 1st That the demandant's husband Joseph Catlin v>'as never seised kc. on which issue was joined. 2d That the said Joseph, being seised in his demesne as of fee, on the 28th day of March, 1793, by his deed of that date duly acknowledged, (Src, for a valuable consideration, bargained and sold the same land, in which the demandant claims her dower, to one David Horton in fee simple; and that the said Abigail, by the consent of her husband, for the consideration in the said deed expressed, and also of one dollar paid her by the said David, assented and agreed to the same deed of the said Joseph, and then and there by her act and consent, signified by her affixing her seal to the said deed, and subscribing her mark thereto, she being unable to write her name, barred herself of all right of dower in the same premises and every part thereof; by virtue whereof the said David became seised in fee of the same premises, free and exemi^t from all claim demand or right of dower of the said Abigail therein. The demandant replied, that she did not by her act and consent signified, kc, bar herself, kc, and tendered an issue to the country, which was joined by the tenant. The several issues thus joined were tried at the last April Tin-m of this court in this county, before Sedgiricl-, J., from whose report it appears, that the seisin of the demandant's husband and her cover- ture were agreed, as alleged in the writ. The tenant produced the deed of Joseph Catlin to David Horton, mentioned in tli(> pleadings. It purported a conveyance in fee of the land, in wliicli doAver is demanded, and to it, after the name and seal of her husband, were set the demandant's seal and mark. But her name was not otherwise mentioned in the deed, nor were there any words therein purporting or implying a release of her right of dower. The deed was acknowledged by the husband, and recorded; but there Avas no acknowledgment by tlie wife 1 See Dnrf v. Clnyfnv. 4 Now R. 221. 2 Part of the case is omitted. 604 AGRICULTURAL BANK OF MISSISSIPPI V. RICE [CHAP. X On the part of the tenant it was insisted at the trial, that the latter issue was proved on his behalf. But the judge directed a verdict on both issues in favor of the demandant; referring to the decision of the court, the question whether that direction was right. Curia. Two objections, made to the deed read in evidence at the trial of this cause, have been replied to by the counsel for the tenant. As to the second, the want of an acknowledgment by the wife we think an acknowledgment unnecessary in the case. One party to a deed acknowledging it gives notoriety to it, and that is the whole that is necessary. Though a deed be acknowledged and recorded, yet on the issue of 7ion est fad urn the execution of the deed is still to be proved, as if it had not been acknowledged. Inhabitants of Worcester v. Eaton, 11 Mass. K. 379; 13 Mass. Eep. 371. Neither was an acknowdedgment by the wife necessary in order to make the deed binding on her. She must know her own acts, and is bound by such, as the law authorizes her to execute. The other objection to this deed has much more weight in it, and is indeed fatal to the defence of the action. A deed cannot bind a party sealing it, unless it contains words expressive of an intention to be bound. In this case, whatever may be conceived of the inten- tion of the demandant in signing and sealing the deed, there are no words implying her intention to release her claim of dower in the lands conveyed which must have been, to give it that operation. It was merely the deed of the husband, and the wife is not by it barred of her right to dower.^ THE AGRICULTURAL BANK OF MISSISSIPPI and Others v. RICE and Others 4 How. (U. S.) 225. 1846.2 Error to the Circuit Court of the United States for the Southern District of Mississippi. The opinion of the court presents the neces- sary facts and the questions decided. Taney, C. J., delivered the opinion of the court. This being an action of ejectment, the only question between the parties is upon the legal title. It is admitted in the exception, that Mary Rice and Martha Phipps, lessors of the plaintiff, were each of them, as heirs at law of Adam Bower, entitled to an undivided third part of the premises mentioned in the declaration, in fee-simple. In order to show title out of them, 1 Contra, reluctantlv, on the ground of established custom in New Hamp- shire, Burgc v. Smith, 27 N. H. 332; and see Woodward v. Seaver, 38 N. H. 29. Compare Dinkins v. Latham. 154 Ala., 90; Isler v. Isler, 110 Miss. 419. 2 This case is printed from Mr. Justice Curtis's edition of the Reports of Decisions in the Supreme Court of the United States. SECT. l] AGRICULTURAL BANK OF MISSISSIPPI V. RICE 605 the plaintiffs in error relied upon the bond of conveyance and deed, mentioned in the statement of the case, both of which were signed and sealed by these lessors of the plaintiff, but were executed while they were femes covert. As regards the bond, it would not have transferred the legal title, even if all the parties had been capable of entering into a valid and binding agreement. But as to the femes covert who signed it, it was merely void, and conferred no right, legal or equitable, upon the obligees. The deed, also, is inoperative as to their title to the land. In the premises of this instrument, it is stated to be tlie indenture of their respective husbands in right of their wive§, of the one part, and of the grantees, of the other part, — the husbands and the grantees being specifically named; and the parties of the first part there grant and convey to the parties of the second part. The lessors of the plaintiff are not described as grantors; and they use no words to con- vey their interest. It is altogether the act of the husbands, and they alone convey. Now, in order to convey by grant, the party pos- sessing the right must be the grantor, and use apt and proper words to convey to the grantee, and merely signing and sealing and ac- knowledging an instrument, in which another person is grantor, is not sufficient. The deed in question conveyed the marital interest of the husbands in these lands, but nothing more. It is unnecessary to inquire whether the acknowledgment of the femes covert is or is not in conformity with the Statute of Missis- sippi. For, assuming it to be entirely regular, it would not give effect to the conveyance of their interests made by the husbands alone, i^nd as to the receipt of the money mentioned in the testimony, after they became sole, it certainly could not operate as a legal convey- ance, passing the estate to the grantee, nor give effect to a deed which as to them was utterly void. The judgment of the Circuit Court is therefore affirmed.^ 1 And so Fitc Porter & Co. v. Kennamcr, 90 Ala. 470; Pcabody v. Hewett, 52 Me. 33, 49, 50; Jcuinn v. Johnson, 74 N. J. L. 529. And compare Flagg v. Bean, 25 N. H. 49, 62, 63. But see Sterling v. Park, 129 Ga. 309; Hrouska v. Janke, 66 Wis. 252. A deed purporting to be a conveyance of land by Edward Jones, and ac- knowledged by him to be his deed, passes his intere.'^t in the land, although the signature thereto reads " Edmund Jones." So said by the Supreme Court of California in Middlvton v. Findla, 25 Cal. 76 (1864). But in Boothroijd v. Engles, 23 Mich. 19 (1871), the iilainfiff in ejectment., to prove the transfer of the title to the /onw from Hiram Sherman, a former holder, to one Rawles, under whom the plaintiff claimed, offered in evidence an office copy of a deed which purported to be a conveyance of the land from Hiram Sherman to said Rawles, and which Hiram Sherman had acknowledged to be his deed, but the signature to which read " Harmon Sherman." The court rejected the deed, and the plaintiff .alleged exceptions, which were over- ruled by the Supreme Court of Michigan, the court holding that the deed was not admissible, at least until some " foundation had been laid to connect the two variant names." 606 SEALS [chap. X WILLISTON, CONTRACTS, §§ 207-209; pages 413 to 420, including the footnotes. It is said by Lord Coke that a seal is wax on which an impression has been made, and that the wax without the impression wouhl not constitute a seal.^ But the common law has everywhere in recent times much relaxed this rule. Everywhere to-day any substance as, for instance, a wafer - attached as a seal to a document would be held sufficient. So an impression made upon the paper as in the case of the seals ordinarily used by notaries and corporations would be sufficient.^ It seems logically difficult starting from these recog- nized extensions of the early rule to deny validity to any written or printed addition to a document which was in fact intended as a seal, since ink is superimposed on the paper and an impression is also made on it; and many courts seem prepared to accept this conse- quence. Thus a scroll or scrawl has been held enough.* So the word " seal,"^ or the letters L. S. (standing for locus sigilU).^ Perhaps the extreme limit was reached in a Pennsylvania case '^ where it was held that a horizontal dash less than an eight of an inch 1 Institutes, Book III, 169. - Tasker v. Bartlett, 5 Cush. 359. Apparently the relaxation was first brought about by presuming from the recitals in the deed that an impression with the finger was made on the wafer. 3 In re Sandilands, L. R. 6 C. P. 411, 412; National Provincial Bank v. Jackson, 33 Ch. D. 1, 11; Hendee v. Pinkcrton, 14 Allen, 381; Royal Bank v. Grand Junction Co., 100 Mass. 444, 97 Am. Dec. 115; Beardsley v. I\.night, 4 Vt. 471, 479. 4 United Stxites v. Stephenson s Exec, 1 McLean 462; Anderson v. Wil- burn, 8 Ark. 155; Williams v. Greer, 12 Ga. 459; Harden v. Webster, 29 Ga. 427, 429; Eames v. Preston, 20 111. 389; Trasher v. Everhart, 3 G. & J. 234; Line v. lAne, 119 Md. 403, 86 Atl. 1032; Thompson v. Poe, 104 Miss. 586, 61 So. 656; Michenor v. Kinney. Wright, 459; Parks v. Duke, 2 McCord 380; Whitley v. Davis' Lessee, 1 Swan. 333, 335; Jones v. Logwood, 1 Wash. (Va.) 56. But see Adam v. Kerr, 1 B. & P. 360. 5 Jackson v. Security Mut. Lije Ins. Co., 233 III. 161, 84 N. E. 198; Quincy Horse Ry. Co. v. Omer, 109 111. App. 238; Jeff cry v. Underwood, 1 Ark. 108; Comerford v. Cobb, 2 Fla. 418; Bacon v. Green, 36 Fla. 325, 18 So. 870; Pierce v. Lacy, 23 Miss. 193; Groner v. Smith, 49 Mo. 318; Lorah v. Nissley, 156 Pa. St. 329, 27 Atl. 242; McClamroch. etc., Co. v. Bristow, 94 S. C. 252, 77 S. E. 923; Philip v. Steams, 20 S. D. 220, 105 N. W. 467; Whitley v. Davis' Lessee, 1 Swan, 333; English v. Helms, 4 Tex. 228; Connor v. Autrey, 18 Tex. 427. fi Jacksonville, etc., Nav. Co., v. Hooper, 160 U. S. 514, 40 L. Ed. 515, 16 S. Ct. 379; G. V. B. Min. Co. v. First Nat. Bank, 95 Fed. 23, 36 C. C. A. 633; Bertrand v. Byrd, 4 Ark. 195; Hastings v. Vaughn, 5 Cal. 315; Langley V. Owens, 52 Fla. 302. 42 So. 457; Stansell v. Corley, 81 Ga. 453, 8 S. E. 868; Ankeny v. McMahon, 4 III. 12; Lorah v. Nissley, 156 Pa. St. 329, 27 Atl. 242; Osbom v. K:istlcr, 35 Ohio St. 99; McKain v. Miller, 1 McMuJl. (S. C.) 313; Buckner v. Mackay. 2 Leigh, 488. But see Woodbury v. United States Casualty Co., 2S4 111. 227, 120 N. E. 8. 7 Hacke/s Appeal, 121 Pa. 192, 15 Atl. 500, 1 L. R. A. 861. SECT. l] SEALS 607 long was a sufficient seal. A few courts, however, still maintain a stricter rule; and while not denying the sufficiency of wafers or of such impressions on paper as are made by notaries' seals, decline to accept as seals a mere written or printed word or device.^ In many States statutes have declared that written or printed additions to the paper are sufficient.'-* Under statutes which allow the use of a scroll or scrawl for a seal, all kinds of informal written or printed substitutes for sealing are permissible; as, for instance, the written or printed word seal.^" 8 Woodbury v. I'mtcd States Casualty Co., 2M 111. 227, 120 X. E. 8 (letters [L. S.] held insufficient at common law and therefore in another State where the instrument was executed the law of which was not proved) ; McLaughlin v. Randall, 66 Me. 266 (scroll msufficient) ; Manning v. Perkim, 86 Me. 419, 29 At. 1114 (printed word [seal] insuflicient) ; Bates v. New York Central R. Co., 10 Allen, 251 {jacsimile of corporate seal printed on document insufficient. This was held sufiicient in Woodman v. York, etc., R. Co., 50 Me. 549) ; Bh^hop v. Globe Co., 135 Ma;ss. 132 (printed word [seal] insufficient); Providence, etc., Co. v. Crahan Engravinq Co., 24 R. I. 175, 52 Atl. 804 (written scroll containing the word seal, insufficient) ; Beard- sley V. Knight, 4 Vt. 471 (written word seal insufficient.) " Alabama, Code (1907), § 3363. An instrument piu-porting to be imder seal has the .siime effect as if a seal were affixed. California, Civ. Code, § 193. A scroll or the word seal after the signature is sufficient. Colorado, Mills Stat. (1912), § 824. A scroll is enough. Connecticut, Gen. Stat. (1918), § 5742. The word seal or the letters L. S. are sufficient. Florida, Comp. Laws (1914), § 24M. A scrawl or scroll written or printed is sufficient. Georgia, Code, § 5. A scrawl or any other mark intended as a seal shall be held as such. Idaho, Rev. Stat. (1908), §§ 13, 5989. Impression on the paper is enough, or a scroll, or the word seal. Illinois, Jones & Addington's Stat. (1913), § 2223. A scrawl, affixed by way of a seal, has the same effect as a seal. Michigan, Comp. Laws (1916), § 11740. A scroll or device used as a seal has the same effect as a seal. New Jersey, Comp. Stat. (1911), pp. 1540, 3776. A scroll or other device is sufficient. New Mexico, Comp. Laws (1897), § 3932. A scroll is sufficient. New York, Gen. Const. Law, § 44. A seal shall consist of a wafer, wax, or other similar adhesive substance or of paper or other similar substance, affixed thereto by mucilage or other adhesive substance, or of the word seal or the letters L. S. opppo.^ite the signature. Oregon, Lord's Oreg. Laws (1910), § 775. Impression, wafer, wax. paper, scroll, or other .sign made with a pen, constitutes a seal. Rhode Island, General Laws (1909), c. 32, § 14. An impression is sufficient. South Dakota, Comp. Laws (1913), § 2473. Like Rhode Island. Utah, Comp. Laws (1917). §§ 5726, 7105. A scroll, printed or written, or the word seal is sufficient. Virginia, Code (1904), §§ 5 (12). 2841. A -scroll is sufficient. West Virginia, Code (1913), § 344. A scroll written or printed is sufficient. Wisconsin, Stat. (1915), § 2215. A scroll or device as a seal is sufficient. 10 Bertrand v. Byrd, 4 Ark. 195: .lack.son v. Security Mut. L. I. Co., 233 III. 161, 84 N. E. 198; Whittington v. Clarke, 16 Miss. 4S0; Buckner v. Mac- 608 SEALS [chap. X As long as the question whether an instrumen't was under seal de- pended on whether a piece of wax impressed with the obligor's seal was attached, intention played no part in the determination of the question; but it will be observed that the extensions of the common law result in making the intention of the obligor of vital importance, for when almost anything may serve as a seal whether or not it is in fact a seal depends upon whether it was affixed or adopted as such, that is, upon whether it was intended to be a seal.^^ If, however, a Avafer or something appropriate for a seal was on the paper at the time of execution or was subsequently attached thereto by the signer in the place customary for a seal there is at least prima facie proof of the requisite intention.'^' It was early established that the maker of a deed need not him- self attach the seal.^^ And one seal may serve for several persons. It was formerly thought necessary that each should make an impres- sion upon the seal,^* but this was ultimately held unnecessary. If, kay, 2 Leigh, 488; Lewis v. Overby, 28 Gratt. 627; Osborn v. Kistler, 35 Ohio St. 99. 11 Thus a piece of ribbon attached to parchment for the purpose of keep- ing the wax of a seal on the parchment was held insufficient, there being no trace of wax having actually been attached. But Cotton, L. J., said: " It is true that if the finger be pressed on the ribbon, that may amount to sealing, but no such inference can be drawn here." National Provincial Bank v. Jackson, 33 Ch. D. 1, 11. Such a ribbon was similarly held insufficient in Duncan v. Duncan, 1 Watts, 322. Similarly though a scrawl or flourish may be a seal in Pennsylvania, in Taylor v. Glaser, 2 S. & R. 502, it was held a flourish was not a seal because put under the signature, and apparently intended merely as part of it. 12 In Langley v. Owens, 52 Fla. 302, 309, 310, 42 So. 457, the court said: " It is not contended that the defendant did not in fact adopt and use the character or device (L. S.) as it appears to the right of his signature in the notes, but that he did not adopt and intend it as a seal. Where there is no dispute as to the character or device u.sed in the execution of a written instrument it is for the court to determine whether the device as used con- stitutes a seal. See Beardsley v. Knight, 4 Vt. 471 ; Jacksonville M. P. Ry. & Nav. Co. V. Hooper, 160 U. S. 514, 16 S. Ct. 379, 40 L. Ed. 515. "Under this statute [Acts of 1893, c. 4148], a .scrawl or scroll, affixed as a seal, to the signature of the maker of a promissory note is as effectual as a seal, and when such scrawl or scroll, printed or written, appears affixed to the maker's signature in the place usually occupied by the seal it is, in the absence of fraud, sufficient to give it effect as a seal. See Hudson v. Poindexter, 42 Miss. 304; Barnard v. Gantz, 140 N. Y. 249, 35 N. E. 430; Hacker's Appeal, 121 Pa. St. 192, 15 Atl. 500, 1 L. R. A. 861." 13 Perkins's Profitable Book, § 130, " But it is nothing to charge, whether it be sealed with the seal of the grantor or not, or by a stranger, or by the grantor, if the grantor deliver the writing, &c. as his deed." See also Ankeny V. McMahon, 4 111. 12; Line v. Line, 119 Md. 403, 86 Atl. 1032; Underwood V. Dollins, 47 Mo. 259; Osborn v. Kistler, 35 Oh. St. 99; Lorah v. Nissley, 156 Pa. 329, 27 Atl. 242; McKain v. Miller, 1 McMull, 313. 11 Shepard's Touchstone, 57. "And if there be twenty to seal one deed, and they seal all upon one piece of wax and with one seal, yet if they make distinct and several prints; this is a very sufficient sealing, and the deed is good enough." SECT. l] SEALS 609 therefore, an instrument signed by several persons has seals opposite less than all the signatures, it may, nevertheless, be the sealed in- strument of all; and if there is a general recital of sealing, it will be presumed that those who signed without affixing an individual seal adopted any seal which was already upon the instrument •,^^ though parol evidence to the contrary is admissible/*^ If the in- strument contains no recital or other statement tending to show that all the signers executed it under seal, it has been held that" the mere fact that the signature to which no seal is affixed follows a signature which is followed by a seal is no evidence that the subsequent signers adopted the seal of the prior signer; ^^ but parol evidence might show such adoption.'* It has been said that if " the first sign without a seal, and the others add seals to their names, without the direction or consent of the first, then he cannot be presumed to adopt their seals as his, and it continues, as to him, a simple instrument, as it was when he first executed it." ^^ It is to be observed, however, that the question is whether the instrument was sealed when it was delivered. If the first signer, therefore, delivered the instrument or authorized its de- livery after a seal had to his knowledge been attached by subse- quent parties, there seems as much reason to infer an adoption of the seal from recitals in the instrument as if tin- unsealed signature were the last on the instrument. A corporation as well as an actual person ma}^ adopt as its seal to a document anything which is capable of being adopted as a seal by a natural person, even though the corporation have a special seal which it ordinarily uses,-" It is usual at the close of a deed to state that it has been " signed, sealed and delivered," or that " in witness whereof the maker here- unto sets his hand and seal," or similar words. Such a recital, how- ever, though desirable as evidence of the signer's intent, is not essen- tial to the validity of the instrument as a covenant. Under the 15 Bacon v. Green, 36 Fla. 325, 18 So. 870; Davis v. Burton, 4 111. 41. 36 Am. Dec. 511; McLean v. Wihon, 4 111. 50; Rj/an v. Cooke, 172 111. 302, 50 N. E. 213; Tasker v. Bartlctt, 5 Cush. 359; Lunxjord v. LaMotte Lead Co. 54 Mo. 426; Burnett v. McClucy, 78 Mo. 676, 688; Pequaiokett Bridge v. Mathes, 7 N. H. 230, 26 Am. Dec. 737; Bowman v. Robb, 6 Pa. 302. But .see contra Stabler v. Coivman, 7 G. & J. 284; State v. Humbird, 54 Md. 327. which held general recitals of sealing no evidence of adoption. i« Yarborough v. Monday, 3 Dev. 420; HoIUh v. Pond, 7 Humph. 222; Lambdcn v. Sharp, 9 Humph. 224. 17 Cooch V. Goodman, 2 Q. B. 580, 598; //c.s.s's Estate, 150 Pa. 346, 24 Atl. 676. But see apparently contrary statements in Fames v. Preston, 20 111. 389; Muckleroy v. Bethany, 23 Tex. 163. 18 Ball V. Dunsteriille, 4 T. R. 313; and see cases cited in the preceding two notes. 19 Eames v. Preston, 20 111. 389; Rankin v. Rohr. 8 Gratt. 63. 20 G. V. B. Mining Co. v. First Nat. Bank, 95 Fed. 23, 33, 36 C. C. A. 633, and cases cited. 610 SEALS [chap. X earliest common-law view an instrument necessarily showed whether it was sealed with the obligor's seal, and if such an instrument so sealed were outstanding, the obligor was liable. And even after some actual delivery by the obligor had become necessary^ and also after it may be supposed to have become necessary that the seal should be actually affixed or adopted by the obligor, it was still true in the main that it could be determined on inspection whether a document was sealed or not without reference to any recitals. Such recitals accord- ingly were held unnecessai'y.-^ In Virginia and a few other States, however, a different rule pre- vails, and whether the seal attached to the instrument is one which would have been regarded as such by the early common law or not, a recital that the instrument is sealed must be made.-- Under the extension of the common-law definition of what con- stitutes a seal, -^ a distinction is taken in some jurisdictions. It is held that to give a scroll or similar modern substitute for a seal the effect of one, requires a recital, but that a real or unmistakable seal is effectual without a recital.-* But no such requirement is -1 Anonymous, 1 Dyer, 19 a, pi. 113; Goddard's Case, 2 Coke, 4 b. 5 a; Bedow's Case. 1 Leon. 25; Peters v. Field, Hetly, 75; Thompson v, Butcher, 3 Bulstr. 300, 302 (but see Clement v. Gunhouse, 5 Esp. 83) ; Burton v. LeRoy, 5 Sawy. 510; Jeffery v. Underwood, 1 Ark. 108; Bertrand v. Byrd, 4 Ark 195; Cummins v. Woodruff, 5 Ark. 116; Conine v. Junction, etc., R., Co., 3 Houst. 288; Fames v. Preston, 20 111. 389; Jackson v. Security Mutual Life Ins. Co., 233 111. 161, 84 N. E. 198; Hubbard v. Beckmth, 1 Bibb., 492; Wing v. Chase, 35 Me. 260; Trasher v. Everhart, 3 G. & J. 234, 246; Mill Dam Foundry V. Hovey, 21 Pick. 417, 428; Brown v. Jordhal, 32 Minn. 135, 19 N. W. 650; Stioknoth's Estate, 7 Nev. 223, 234; Ingram v. Hall, 1 Hayw. 193, 209; Osbom V. Kistler, 35 Ohio St. 99 ; Osborne v. Hubbard, 20 Oreg. 318, 25 Pac. 1021, 11 L. R. A. 833; Taylor v. Glaser, 2 S. & R. 502; Prevail v. Fitch, 5 Whart.. 325, 34 Ann. Dec. 558; Biery v. Haines, 5 Whart. 563; Hopkins v. Cumberland R. Co., 3 W & S. 410; Lorah v. Nissley, 156 Pa. 329, 27 Atl. 242; Relph v. Gist. 4 McCord, 267; McKain v. Miller, 1 McMuU. 313; Scruggs v. Brackin, 4 Yerg. 528. See also McRauen v. McGuire, 17 Miss. 34; Hudson v. Poindexter, 42 Miss. 304. 2 2 Bradley Salt Co. v. Norfolk Importing Co., 95 Va. 461, 28 S. E. 567. Also Lee v. Adkins, Minor, 187; Carter v. Penn, 4 Ala. 140; Moore v. Lcseur, 18 Ala. 606; Blackwell v. Hamilton, 47 Ala. 470; Breitling v. Marx, 123 Ala. 222, 26 So. 203; McDonald v. Bear River, etc., Mining Co., 13 Cal. 220; Echoh V. Phillips, 112 Ga. 700, 37 S. E. 977; Barnes v. Walker, 115 Ga. 108, 41 S. E. 243; Boharmon v. Hough, 1 Miss. 461 (but see McRaven v. McGuire, 17 Miss. 34) ; Austins Adm. v. Whitlock's Ex'rs. 1 Munf. 487, 4 Am. Dec. 550; Keller's Adm'r v. McHufjman, 15 W. Va. 64, 85. See also Buckingham v. Orr, 6 Col. 587. 2 3 See supra, § 207. ^* Alt v. Stoker, 127 Mo. 466, 30 S. W. 132, and cases cited; Winter v. Kansas City Ry. Co., 160 Mo. 159, 61 S. W. 606 ; Newbold v. Lamb, 2 South. (N. J.) 449; Corlies v. Van Note, 1 Harr. (N. J.) 324; Flemming v. Powell, 2 Tex. 225 (compare English v. Helms, 4 Tex. 228; Muckelroy v. Bethany, 23 Tex. 163). See also Brown v. Jordhal., 32 Minn. 135. 19 N. W. 650, 50 Am. Rep. 560; Merritt v. Cornell, 1 E. D. Smith, 335; Osborne v. Hubbard, 20 Oreg. 318, 25 Pac. 1021. In Missouri and Texas seals are now abolished altogether. See infra, § 218. In some jurisdictions at least the mere presence SECT. I] SEALS 611 generally made.-^ It seems, therefore, that in most jurisdictions whether an instrument is under seal or not must frequently be open to determination by extrinsic parol evidence of the intention with which some scroll or dash was affixed to the signature of the maker.-* Though if statements or recitals are made in an instrument to which is affixed something capable of being a seal if intended as such, that it is sealed, such statements are doubtless e\ndence and perhaps con- clusive evidence of the obligor's intent.-^ of a seal is not sufficient evidence that the instrument is sealed. There must be either a recital or extrinsic evidence of sealing by the obligor. In re Pirie, 198 N. Y. 209, 91 X. E. 587; Taylor v. Glaser, 2 Serg. & R. 502; Smith v. Henning, 10 W. Va. 596, 631, cj. Jackson v. Security L. Ins. Co., 233 111. 161, 84 N. E. 198. 25 See cases cited, supra, p. 610 n . 26 It is indeed said in Jacksonville, etc., Nav. Co. v. Hooper, 160 U. S. 514. 519, 40 L. Ed. 515, 16 S. Ct. 379, " Whether an instrument is under seal or not is a question for the court upon inspection; whether a mark or character shall be held to be a seal depends upon the intention of the execu- tant, as shown bv the paper" citing Hackers Appeal, 121 Penn. St. 192, 15 At.l. 500, 1 L. R. "a. 861 ; Pillow v. Roberts, 13 How. 472, 474, 14 L. Ed. 228. But it is hard to see, if recitals are unnecessaiy, and anything may serve for a seal which is so intended, how " the intention of the executant, as shown by the paper " can be decisive. Non constat that any intention appears from the paper. In Jeffery v. Underwood, 1 Ark. 108, 111, the court said: "The scrawl must appear on the face of the instrument ; the proof that it was placed there by way of seal may be by evidence dehors the instrument." In National Provincial Bank v. Jackson, 33 Ch. D. 1, 11, the court referred as important, to evidence of an attesting witness as to whether the finger of the maker was pressed upon the ribbon attached to the document, or anything of the sort. And see cases at the end of the preceding note. 27 In Metropolitan Life Ins. Co. v. McCoy, 124 N. Y. 47, 26 N. E. 345, 11 L. R. A. 708, a penal bond was signed which recited that it was sealed, but which in fact was not sealed at the time when one of the obligors signed it, seals being afterwards affixed by the other obligor. It was held that the first obligor was estopped to deny the validity of the sealing. In State v. Humbird, 54 Md. 327, and Taylor v. Gla.-iPr, 2 S. & R. 502, it was held that a recital of sealing does not estop the maker of a penal bond delivered with- out seals from, denying that it is sealed. See also Hudson v. Webber, 104 Me. 429, 72 Atl. IM. In Barnet v. Abbot, 53 Vt. 120, it was held that a recital in a bond that it was sealed is evidence that it was sealed when de- livered but not conclusive proof. See further as to the general conclusiveness of recitals, supra, § 115. In Broivn v. Jordhal, 32 Minn. 135, 19 N. W. 650, 50 Am. Rop. 560, the court said: "Such words in the testimonium clause as ' witness my hand and seal.' or ' sealed with my seal,' would establish that the scroll or device was used as a seal. ... It would be difficult to conceive how the party could express that the device was intended for a seal more clearly than by the word ' seal ' placed within and made a part of it." To the same effect is Osborne v. Hubbard, 20 Oreg. 318. 25 Pac. 1021. In Whittiugton V. Clarke, 16 Miss. 480. 485. Thatcher. J., said, " Whenever it is manifest that a scroll is intended to be used * by way of seal.' it must have that effect, whether it appears from the boilv of the instrument, or from the scroll itself." 612 whyddon's case [chap, x SECTION II DELIVERY WHYDDOX'S CASE Cro. Eliz. 520. 1596. Annvity. The defendant saitli, that he delivered the deed of an- nuity to the plaintiff as an escrow, to be his deed upon a certain condition to be performed, otherwise not : and that the condition was not yet performed. The plaintiff demurred ; and, without argument, adjudged for the plaintiff : for the delivery of a deed cannot be averred to be to the party himself as an escrow. Vide 19 Hen. 8, pi. 8 ; 29 Hen. 8 ; and Morice's Case, Dyer, 23 b, 25 a, in margin.^ 1 Whitney v. Dewey, 10 Idalio 633; Ryan v. Cooke, 172 111. 302; City Bank v. Anderson, 189 Ky. 487; Reed v. Reed, 117 Me. 281; Braman v. Bing- ham, 26 N. Y. 483; Hamlin v. Hamlin, 192 N. Y. 164; Weisenberger v. Hueb- ner, 264 Pa. 316; Gafjney v. Stowers, 73 W. Ya. 420; Williarjis v. Green, Cro. El. 884; s. c. Moore 642; Thoroughgood's Case, 9 Co. 136 b; Bushell v. Pasmore, 6 Mod. 217, 218, accord. Contra. Lee v. Richmond, 90 Iowa 695. Compai-e Stanley v. White, 160 111. 605; Sample v. Greathard, 281 111. 79; Mitchell v. Clem, 295 111. 150; Troupe v. Hunter, 133 N. E. (111.) 56; Bremyer v. School Ass'n, 86 Kan. 644; Fairbanks v. Metcalj, 8 Mass. 230; Bleidtt v. Boorum, 142 N. Y. 357; Gaylord v. Gaylord, 150 N. C. 222; Whit- aker v. Lane, 128 Va. 317; Curry v. Colburn, 99 Wis. 319; Zoerb v. Paetz, 137 Wis. 59; Hawksland v. Gatchel, Cro. El. 835; Murray v. Stair, 2 B. & C. 82; Hudson v. Revett, 5 Bing. 368. 388. Authorities are collected in 16 L. R. A. n. s. 941 note; 5 Minn. L. Rev. 287; Williston, Contracts. § 212. In London Freehold Co. v. Baron Suffield, [1897] 2 Ch. (C. A.) 608, one Wynne was solicitor of the plaintiff Company and was also one of four trustees under a settlement. A mortgage by the plaintiff Company to the trustees w^as signed and sealed and placed in the hands of W3'nne. The Company urged that the delivery was in escrow, but the court found otherwise. In disposing of this point the court said, p. 621 : " We are not prepared to go so far as to say that, as Wynne was himself one of the mortgagees and a party to the deed, it could not in point of law be an escrow in his hands. Counsel for the defendants contended that the mere fact that Wynne was himself one of the mortgagees was fatal to the deed being an escrow. They contended that to be an escrow the deed must be delivered to some person not a party taking under it; in short, to a stranger. In support of this con- tention reliance was placed on Co. Litt. 36 a; Sheppard's Touchstone, 7th ed. pp. 58, 59; and Whyddon's Case, Cro. Eliz. 520. No doubt the language used in the authorities referred to and reproduced in other works on real property and conveyancing is in favour of this contention. But the language is veiy general, and we are not at all satisfied that the law is so rigid as to compel the Court to decide that where there are several grantees and one of them is also solicitor of the grantor and of the other grantees, and the deed is de- livered to him. evidence is not admissible to shew the character in which and the terms upon which the deed was so delivered. To exclude such evidence appears to us unreasonable; and we do not think we are compelled by author- SECT. II ] DELIVERY 613 Co. Lit. 36 a. If a man deliver a writing sealed, to the party to whom it is made, as an escrow to be his deed upon certain conditions, (fcc, this is an absolute delivery of the deed, being made to the party himself, for the delivery is sufficient without speaking of any words (otherwise a man that is mute could not deliver a deed), and tradi- tion is only requisite, and then when the words are contrary to the act which is the delivery, the words arc of none effect, non quod dictum est, sed quod factum est inspicitur. And hereof though there hath been variety of opinions, yet is the law now settled agreeable to judgments in former times, and so was it. resolved by the whole Court of Common Pleas. But it may be delivered to a stranger, as an escrow, kc, because the bare act of delivery to him without words worketh nothing. And this is the ancient diversity in our books, the record whereof I have seen agreeable with the reason of our old books. And as a deed may be delivered to the party without words, so may a deed be delivered by words without any act of delivery, as if the writing sealed lietli upon the table, and the feoffor or obligor saith to the feoffee or obligee. Go and take up the said writ- ing, it is sufficient for you, or it will serve the turn : or, Take it as my deed, or the like words, it is a sufficient delivery. Shep. Touch., 58, 59. The delivery of a deed as an escrow is said to be where one doth make and seal a deed, and deliver it unto a stranger until certain conditions be performed, and then to be de- livered to him to whom the deed is made, to take effect as his deed. And so a man may deliver a deed, and such a delivery is good. But in this case two cautions must be heeded. 1. That the form of words used in the delivery of a deed in this manner be apt and proper. 2. That the deed be delivered to one that is a stranger to it, and not to the party himself to whom it is made. — The words therefore that are used in the delivery must be after this manner : I deliver this to you as an escrow, to deliver to the party as my deed, upon condition that he do deliver to you £20 for me, or upon condition that he de- liver up the old bond he hath of mine for the same money, or as the case is. Or else it must be thus : I deliver this as an escrow to you, to keep until such a day, &c. upon condition that if before that day he to whom the escrow is made shall pay to me £10, or give to me ity to exclude) it. We hold such evidence to be admissible, and in so doing we believe we are acting in accordance with modem authorities, beginning with Murray v. Earl nf Stair, 2 B. Sc C. 82, and ending with Watkins v. Na.'ih, L. R. 20 Eq. 262. Upon the evidence, however, to which we have already referred, we come to the conclusion that the mortgage was executed as a complete deed." Cases on conditional delivery to agent of grantee. A.fhford v. Premtt, 102 Ala. 264; Alabama Coke & Coal Co. v. Gulf Coke d- Coal Co., 165 Ala. 304; Roach v. A. D. Malone Co., 135 Ark. 69; Bond v. Wihon, 129 N. C. 325; Cincinnati Rd. Co. v. lliff, 13 Ohio St. 235; Watkins v. Nash, L. R. 20 Eq. 262. 614 DELIVERY [chap. X a horse, or enfeoff me of the manor of Dale, or perform any other condition ; that then you shall deliver this escrow to him as my deed. For if when I shall deliver the deed to the stranger, I shall use these or the like words; I deliver this to you as my deed, and that you shall deliver it to the party upon certain conditions; or, I deliver this to you as my deed to deliver to him to whom it is made when he comes to London; in these cases the deed doth take effect preo- ently, and the party is not bound to perform any of the conditions.^ So it must be delivered to a stranger; for if I seal my deed and de- liver it to the party himself to whom it is made as an escrow upon certain conditions, &c. in this case let the form of the words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently, and the party is not bound to perform the conditions ; for. In traditionihiis chartarum, non quod dictum, sed quod factum est, inspicitur. But in the first cases before, where the deed is de- livered to a stranger, and apt words are used in the delivery thereof, it is of no more force until the conditions be performed, than if I had made it, and laid it by me, and not delivered it at all; and therefore in that case albeit the party get it into his hands before the conditions be performed, yet he can make no use of it at all, neither will it do him any good. But when the conditions are performed, and the deed is delivered over,- then the deed shall take as much effect as if it were delivered immediately to the party to whom it is made, and no act of God or man can hinder or prevent this effect then, if the party that doth make it be not at the time of making thereof disabled to make it. He therefore, that is trusted with the keeping and de- livering of such a writing, ought not to deliver it before the con- ditions be performed; and when the conditions be performed, he ought not to keep it, but to deliver it to the party. For it may be made a question, whether the deed be perfect, before he hath de- livered it over to the party according to the authority given him. Howbeit it seems the delivery is good, for it is said in this case, that if either of the parties to the deed die before the conditions be per- formed, and the conditions be after performed, that the deed is good; for there was traditio inchoata in the life-time of the parties; et postea consummata existens by the performance of the conditio'ns, it taketh its effect by the first delivery, without any new or second delivery; and the second delivery is but the execution and consumma- tion of the first delivery. And therefore if an infant, or woman covert, deliver a deed as an escrow to a stranger, and before the con- ditons are performed, the infant is become of full age, or the woman 1 But see State Bank v. Evans, 3 Green (N. J. L.) 155. 2 See Bradbury v. Davenport, 120 Cal. 152; Hughes v. Thistlewood, 40 Kan. 232; Regan v. Howe, 121 Mass. 424; Francis v. Francis, 143 Mich. 300; Craddock v. Barnes, 142 N. C. 89; Farley v. Palmer, 20 Ohio St. 223; Pruts- man v. Baker, 30 Wis. 644, 649. Compare Tombler v. Sumpter, 97 Ark. 480; Guild v. Althouse, 71 Kan. 604; Knopf v. Hansen, 37 Minn. 215; Hooper v. Ramsbottom, 6 Taunt. 12. SECT. II ] CHAUDOIR V. WITT 615 is become sole, yet the deed in these cases is not become good. And yet if a disseisee make a deed purporting a lease for years, and de- liver it to a stranger out of the land as an escrow, and bid him enter into the land, and deliver it as his deed, and he do so, this is a good deed, and a good lease, so that to some purposes it hath relation to the time of the first delivery, and to some purposes not. CHAUDOIR V. WITT a>d Others 170 Wis. 556, 562. 1920. WiNSLOw, C. J.^ The reargument has convinced us that we were in error in reversing the judgment in this case, and the former opinion must be considered as withdrawn and the judgment of re- versal set aside. The trial court's findings were that both deeds Avere delivered with the intention of conveying the property, but this court held that these findings were contrary to the clear preponderance of the evidence and that the evidence demonstrated that the deeds were understood by all parties to be testamentary documents only and were never delivered with intent that they should take effect as deeds. We now think that this was an erroneous holding. The only direct testimony as to what was done with the deeds after their ex- ecution was the testimony of Frank Suelflow, the real-estate man, the grantee named in the first deed. He testified directly that Mr. Witt executed the first deed running to him (Suelflow) and gave it to him, and that he then had another deed made out signed and executed by himself and wife, and that he (Suelflow) gave both deeds to Mrs. Witt for the purpose of conveying the property to her. No witness details the conversation which occurred on either occasion, but Suelflow says, and in this testimony is sustained by Damkoehler, that Witt wanted to deed his property to his wife be- cause he was sick and he might die, and in case he died the properry would be assigned to his wife, and that the deeds were not to be recorded until after his death. The appellant's proposition is in brief that this evidence last referred to overcomes the inference of delivery naturally' to be drawn from the manual tradition of the deeds. Mature consideration convinces us to the contrary. The con- clusion rather is that the deeds were intended to be legally effective at once (in the sense of not being subject to revocation), but were expected not to pass the title until the happening of an outside event, namely, the death of the grantor; in other words, the grants were upon condition. 1 The proceedings prior to the opinion on rehearing arc omitted. 616 CHAUDOIR V. WITT [CHAP. X No court has more positively or consistently held that there cannot be a conditional delivery of a deed to the grantee himself than this court. In Hinchliff v. Hinman, 18 Wis. 130, it was held that if a deed is executed and delivered with intent to pass the estate to the grantee it must so operate though both parties supposed that it would not take effect until recorded and also supposed that while unrecorded the grantor might control or revoke it. In Lowher v. Connit, 36 Wis. 176, it was said that if a grantor of land does not intend his deed to take effect "until some condition is performed he must keep it to himself or leave it in escrow with a stranger and not deliver it to the grantee. In Prutsman v. Baker, 30 Wis. 644, the subject of conditional delivery of a deed was discussed by Chief Justice Dixon, who said : "A conditional delivery is and can only be made by placing the deed in the hands of a third person, to be kept by him until the performance of some condition or conditions by the grantee or some one else, or until the happening of some event " when it is to be delivered by the depositary to the grantee. These cases were followed in Rogers v. Rogers, 53 Wis. 36, 10 N. W. 2, in which it was held that if a grantor did not wish his deed to go into effect at once he should keep it himself or place it in the hands of a stranger and not deliver it to the grantee. And these cases are in accord with the general current of authority to the effect that a delivery in escroAV or upon conditions cannot be made to the grantee himself, and that such a delivery at once be- comes absolute and the supposed conditions are of no effect. 18 Corp. Jur. p. 211; 16 Cyc. 571; 1 Warvelle, Vendors, p. 517; Worrall v. Munn, 5 N. Y. 229 ; Braman v. Bingham, 26 N. Y. 483 ; Wallace v. Berdell, 97 N". Y. 13; Bleivitt v. Boorem, 142 N. Y. 357, 37 :N'. E. 119; Hamlin v. Eamlin, 192 N. Y. 164, 84 N. E'. 805; Hovey v. Ho^ey, 170 N. Y. Supp. 822, affirmed 183 App. Div. 184; Beers v. Beers, 22 Mich. 42; Wipfler v. Wipfler, 153 Mich. 18, 116 N. W. 544; Fairhanhs v. Metcalf, 8 Mass. 230; Fletcher v. Shepherd, 174 111. 262, 51 K E. 212; Blake v. Ogden, 223 111. 204, 79 K E. 68. The reason of the rule is quite obvious. If it were possible to prove in every case that parol conditions were attached to the formal delivery of a deed there would be no safety in accepting a deed. Titles would be open to attack at all times, and the prac- tical result Avould be to defeat the solemn provisions of a duly ex- ecuted and formally delivered deed by parol testimony. There were circumstances in the present case tending quite persuasively to show that both Mr. and Mrs. Witt supposed that the title remained in Mr. Witt during his life, but of course their erroneous impression as to the legal effect of the transaction could not control that effect. If the law is, as we now hold, that such conditional delivery made to the grantee at once becomes an absolute delivery freed of the supposed conditions, then the controversy here is closed, because SECT. Il] DOE d. GARNONS V. KNIGHT 617 the title at once passed in spite of the idea of the parties that it was not to i)ass until after Mr. Witt's death. There are authorities justifying more or less satisfactorily our former holding, some of which will be found cited in the former opinion. It will be found, however, on close examination of most of these cases that they are cases where, although the grantee had manual possession of the deed, it affirmatively appeared that the grantor retained control over it. Conceding in the present case that there is some testimony tending to show that the grantor expected to retain control over the deeds, it certainly cannot be said to be sufficient to overturn the findings of the trial court that the deeds were delivered with intent to convey the property. These findines are founded on sufficient affirmative evidence, are not against the clear preponderance of the evidence, and hence must stand. By the Court. Judgment affirmed. SiEBECKER and ViN.TE, JJ., disscut. A motion by appellant for a r('hearing and for a modification of the mandate as to costs, made December 31, 1919, was denied, with $25 costs, on February 10, 1920.^ DOE d. GAKNONS V. KNIGHT 5 B. & C. 671. 1826. This was an ejectment brought to recover possession of certain messuages and lands in the County of Flint. The lessor of the plain- tiff claimed the property as mortgagee under a deed purporting to be executed by W. Wynne, deceased. At the trial before Garroiv, B., at the Summer Assizes for the County of Stafford, 1825, the prin- cipal question turned on the validity of that deed; and the following appeared to be the facts of the case : Wynne was an attorney resid- ing at Mold in Flintshire, and had acted in that character for Garnons, the lessor of the ])laintift', who resided at a distance of about three miles from Mold. Wynne's sister and niece lived in a house adjoining to his own at Mold. On the 12th of April, 1820, about six o'clock in the evening, Wynne called at his sister's house, his niece then being the only person at home, and asked her to witness or sign some parchment. He produced the parchment, placed it on the table, signed his name, and then said, '' I deliver this as my act and deed," putting his finger at the same time on the seal; the niece signed her name, and he took it away Avitli him. The deed remained 1 Mowry v. Hency, 86 Cal. 471; Hammond v. MvCollouqh, 159 Cal. 639; Bias V. Rccd, 169 Cal. 33; Baker v. Baker, 159 111. 394; Wiplcr v. Wipler, 153 Mich. 18, accord. But compare Kcnncy v. Park^, 125 Cal. 146; Cox v. Schnerr, 172 Cal. 371; FAlioli v. Murray, 225 111. 107; Tricksbury v. Tewksbury, 222 Mass. 595; Smith v. Thayer, 125 N. E. (Mass.) 171. 618 DOE d. GARNONS V. KNIGHT [CHAP. X on the table until he took it away. He did not mention to his niece the contents of the deed, or the name of Mr. Garnons. The niece had no authority from Mr. Garnons to receive anything for him. It was proved by Miss Elizabeth Wynne, the sister of Wynne, that in April, 1820 (but whether before or after the execution of the deed as above mentioned did not distinctly appear), he brought her a brown paper parcel, and said, " Here, Bess, keep this : it belongs to Mr. Garnons." Nothing further passed at this time ; but a few days after he came again, and asked for the parcel, and she gave it to him: he returned it back to her again on the 14th, 15th, or 16th of April, saying, " Here, put this by." When she received it the second time, it was less in bulk than before. Wynne died in August, 1820. After his funeral, she delivered this parcel to one Barker in the same state in which she received it from her brother. Barker, who was an intimate friend of Wynne, stated, that the latter in July, 1814, sent for him, and told him that he had received upwards of £26,000 upon Mr. Garnons' account; and after taking credit for sums he had paid, and placed out for Mr. Garnons, he was still in- debted to him in more than £13,000. He then asked the witness, if he, as his (Wynne's) friend, would see Mr. Garnons to explain the circumstances. The witness consented, and Wynne then made a statement of his property, by which it appeared that after payment of his debts, including the £13,000, he would have a surplus for him- self and family of £8,000 at the least. He desired the witness to tell Garnons that, although he could not pay him at that time, he would taJce care to make him perfectly secure for all the moneys due from him. Upon this being communicated to Garnons he desired Barker to assure Wynne, that he would not then distress him, or ex- pose his circumstances, but he expected that he would provide him securities for the money he, Wynne, owed him. This was com- municated to Wynne, who expressed great gratitude to Garnons, and said he wovild take care to make him perfectly secure. After the funeral of Wynne, his will was produced, and with it was a paper in his own handwriting, containing a statement of his property, and a list of various debts secured by mortgage or bond, and among others, under the title " mortgage/' there was stated to be a debt to Mr. Garnons for £10,000. Miss Wynne soon after delivered to the witness, Barker, a brown paper parcel sealed, but not directed. Upon this being opened, there was enclosed in it another white paper parcel, directed, in the handwriting of Wynne, " Eichard Garnons, Esq." Within it was a mortgage deed (the same that was witnessed by Wynne's niece, as before stated), from Wynne to Garnons for £10,000. There was also within the white parcel, a paper folded in the form of a letter directed in the handwriting of Wynne to Mr. Garnons. That contained a statement of the account between Wynne and Garnons, and £10,000; part of the balance due from Wynne to Garnons, was stated to be secured upon Wynne's property. The SECT. II ] DOE d. GARNONS V. KNIGHT 619 mortgage deed found in \\n\ parcel was tlieii delivered to Garnons. It was a mortgage of all Wynne's real estates. It was contended on the part of the defendant that nothing passed by the deed, inasmuch as there had been no sufficient delivery of it to the mortgagee, or to any person on his behalf, to make it valid; and, secondly, because it was fraudulent and void against the creditors of the grantor under the Statute 13 Eliz. c. 5. The learned judge overruled the objec- tions, and the defendant then proved that Mr. Wynne, in May, 1820, had delivered to him a bond and mortgage of his real estates, to secure money due from Wynne to him; and that by his will he de- vised all his estates to the defendant. Knight, in trust to sell and pay his debts. It was further proved, that about the 5th of April a skin of parchment with a £12 stamp was prepared by Wynne's order, and for a few days he remained in his private room, with the door shut. A clerk entered the room and found him writing upon a parchment : he afterwards locked the door. There was no draft of the mortgage in the office, and he never mentioned it. The whole of the deed was in Wynne's own handwriting. He had three clerks, and deeds were in the usual course of business executed in the office, and witnessed by himself and his clerks. The learned judge told the jury, that the first question for their consideration was, whether the mortgage to the lessor of the plaintiff was duly executed by Wynne the deceased; but that if they thought it was originally well executed, the question for their consideration would be, whether the delivery to Mrs. Elizabeth Wynne was a good delivery; and he told them he was of opinion, that if, after it was formally executed, Mr. Wynne had delivered it to a friend of Mr. Garnons, or to his banker for his use, such delivery would have been sufficient to vest in Mr. Garnons the interest intended to be conveyed to him under it; and the question for them to decide was, whether the delivery to Miss Wynne was, under all the circumstances of the case, a depart- ing with the possession of the deed, and of the power and control over it, for the benefit of Mr. Garnons, and to be delivered to him either in Mr. Wynne's lifetime or after his death; or whether it was delivered to Miss Wynne merely for safe custody as the depository, and subject to his future control and disposition. If they were of opinion that it was delivered merely for the latter purpose, they should find for the defendant, otherwise for the })laintiff. A ver- dict having been found for the plaintiff, CampheU in last Michaelmas Term obtained a rule nisi for a new trial. Bayley, J., now delivered the judgment of the court. There were two points in this case. One, whether there was an effectual delivery of a mortgage deed, under which the lessor of the plaintiff claimed, so as to make the mortgage operate. The other, whether such mortgage was or was not void against creditors or a subsequent mortgagee. Upon the first point the facts were shortly 620 DOE d. GAR-NONS V. KNIGHT [CHAP. X these. In July, 1814, Mr. Wynne, iui attorney, who was seised in fee of the premises in question, made a communication through a friend to the lessor of the plaintiff, who was a client, that he (Wynne) had misapplied above £10,000 of his (Garnons') money. Garnons an- swered, he relied and expected that Wynne would provide him securi- ties for his money ; and Wynne said he would make him perfectly secure, and he should be no loser. On the 12th of April, 1820, Wynne went to his sister's, who, with her niece, lived next door to him, and produced the mortgage in question, ready sealed. He then signed it in the presence of the niece, and used the words " I deliver this as my act and deed." The niece, by his desire, attested the execu- tion, and then Mr. Wynne took it away. The niece knew not what the deed was, nor was Mr. Garnons' name mentioned. In the same month of April he delivered a brown paper parcel to his sister, say- ing, " Here, Bess, keep this ; it belongs to Mr. Garnons." He came for it again in a few days, and she gave it to him; and he returned it on the 14th, 15th, or 16th of April, saying, " Here, put this by." It was then less in bulk than before, and contained the mortgage in question. Mr. Wynne died the 10th of August following, and after his death the parcel was opened, and the mortgage found. Mr. Garnons knew nothing of the mortgage until after it was so found. My Brother Garrow, who tried the cause, left two questions to the jury: one, w^hether the mortgage was duly executed; the other, whether the delivery to the sister was a good delivery; and he ex- plained to them, that if the delivery was a departing with the pos- session, and of the power and control over the deed for the benefit of Mr. Garnons, in order that it might be delivered to him either in Mr. Wynne's lifetime, or after his death, the delivery would be .j?ood • but if it was delivered to the sister for safe custody only for Mr. Wynne, and to be subject to his future control and disposition, it was not a good delivery, and they ought to find for the defendant. The jury found for the plaintiff. Their opinion, therefore, was, that Mr. Wynne parted with the possession and all power and control over the deed, and that the sister held it for Mr. Garnons, free from the control and disposition of the brother. It w^as urged upon the argument, that there was no evidence to warrant this finding, and that the conclusion which the jury drew had no premises upon which it can be supported. Is this objection, however, valid? Why did Mr. Wynne part Avith the possession to his sister, except to put it out of iiis own control? Why did he say when he delivered the first parcel, " It belongs to Mr. Garnons," if he did not mean her to understand, that it was to be held for Mr. Garnons' use ? And though the sister did return it to her brother when he asked for it, Avould she not have been justified had she refused? Might she not have said, "You told me it belonged to Mr. Garnons, and I will part with it to no one but wdth his concurrence." The finding, therefore, SECT. II] DOE cl. GARNONS V. KNIGHT 621 of the jury, if this be a material point, appears to me well warranted by the evidence, and then there will be two questions upon the first point : one, Avhether when a deed is flnly signed and sealed, and formally delivered with apt words of delivery, but is retained by the party executing it, that retention will obstruct the operation of the deed; the other, whether if delivery from such party be essential, a delivery to a third person will be sufficient, if such delivery puts the instrument out of the power and control of the party who executed it, though such third person does not pass the deed to the person who is to be benefited by it, until after the death of the party by whom it was executed. Upon the first question, whether a deed will operate as a deed though it is never parted with by the person who executed it, there are many authorities to show that it will. In Barlow v. Heneage, Prec. Cha. 211, George Heneage executed a deed purporting to conve}^ an estate to trustees, that they might receive the profits, and put them out for the benefit of his two daughters, and gave bond to the same trustees conditioned to pay to them £1,000 at a certain day, in trust for his daughters; but he kept both deed and bond in his own power, and received the profits of the estate till he died : he noticed the bond by his will, and gave legacies to his daughters in full satisfaction of it, but the daughters elected to have the benefit of the deed and bond, and filed a bill in equity ac- cordingly. It was urged, that the deed and bond being voluntary, and always kept by the father in his own hands, Avere to be taken as a cautionary provision only. Lord Keeper Wright said, these were the father's deeds, and he could not derogate from them; and the parties having agreed to set the maintenance of the daughters against the profits received by the father from the estate, he decreed upon the bond only; but that decree was, that interest should be paid upon the bond from the time when the condition made the money payable. In Clavering v. Clavering (Prec. Cha. 235; 2 Yern. 473; 1 Bro. Pari. Cas. 122), Sir James Clavering settled an estate upon one son in 1684, and in 1690 made a settlement of the same estate upon another son: he never delivered out or published the settle- ment of 1684, but had it in his own power, and it was found after his death amongst his waste papers. See 2 Yern. 474, 475. A bill was filed under the settlement of 1690, for relief against the settle- ment of 1684; but Lord Keeper Wright held, the relief could not be granted, and observed, that though the settlement of 1684 was always in the custody or poAver of Sir James, that did not give him a power to resume the estate, and he dismissed the bill. In Lady Hudson's Case, cited by Lord Keeper Wright, a father, being dis- pleased Avith his son, executed a deed giving his wife £100 per annum in augmentation of her jointure; he kept the setthmient in his own power, and on being reconciled to his son, cancelled it. The wife louud the deed after his death, and on a trial at \i\\\, the deed being 622 DOE d. GARNONS V. KNIGHT [CHAP. X proved to have been executed, was adjudged good, though cancelled, and the son having filed a bill in equity to be relieved against the deed, Lord Somers dismissed the bill. In Naldred v. Gilham, 1 Pr. Wms. 577, Mrs. ISTaldred in 1707 executed a deed, by which she cove- nanted to stand seised to the use of herself, remainder to a child of three years old, a nephew, in fee. She kept this deed in her posses- sion, and afterw^ards burnt it and made a new settlement; a copy of this deed having been surreptitiously obtained before the deed was burnt, a bill was filed to establish this copy, and to have the second settlement delivered up ; and Sir Joseph Jekyl determined, with great clearness, for the plaintiff, and granted a perpetual injunction against the defendant, who claimed under the second settlement. It is true, Lord Chancellor Parker reversed this decree; but it was not on the ground that the deed was not well executed, or that it was not bind- ing because Mrs. Naldred had kept it in her possession, but because it was plain that she intended to keep the estate in her own power; that she designed that there should have been a power of revocation in the settlement; that she thought while she had the deed in her custody, she had also the estate at her command; that, in fact, she had been imposed upon, by the deed's being made an absolute con- veyance, which was unreasonable, when it ought to have had a power of revocation, and because the plaintiff, if he had any title, had a title at law, and had, therefore, no business in a court of equity. Lord Parker's decision, therefore, is consisteiit with the position that a deed, in general, may be valid, though it remains under the control of the party who executes it, not at variance with it ; and so it is clearly considered in Bough ton v. Boughton, 1 Atkyns, 625. In that case, a voluntary deed had been made, without power of revoca- tion, and the maker kept it by him. Lord Hardwicke considered it as valid, and acted upon it; and he distinguished it from Naldred V. Gilham, which he said was not applicable to every case, but de- pended upon particular circumstances; and he described Lord Mac- clesfield as having stated, as the ground of his decree, that he would not establish a copy surreptitiously obtained, but would leave the party to his remedy at law, and that the keeping the deed (of which there were two parts) implied an intention of revoking (or rather of reserving a power to revoke). Upon these authorities, it seems to me, that where an Instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping the deed in the hands of the executing party, nothing to show he did not in- tend it to operate immediately, that it is a valid and effectual deed, and that delivery to the party who is to take by it, or to any person for his use, is not essential. I do not rely on Doe v. Roberts, 2 Barn. & A. 367, because there the brother who executed the deed, though he retained the title deeds, parted with the deed which he executed. But if this point were doubtful, can there be any question but SECT. Il] DOE d. GARNONS V. KNIGHT 623 that delivery to a third person, for the use of the party in whose favor a deed is made, where the grantor parts with all control over the deed, makes the deed effectual from the instant of such delivery? The law will presume, if nothing appear to the contrary, that a man will accept what is for his benefit (11 East, 623, per Lord Ellen- borough) ; and there is the strongest ground here for presuming Mr. Garnons' assent, because of his declaration that he relied and ex- pected Mr. Wynne would provide him security for his money, and Wynne had given an answer importing that he would. Sheppard, who is particularly strict in requiring that the deed should pass from the possession of the grantor (and more strict than the cases I have stated imply to be necessary), lays it down that delivery to the grantee will be sufficient, or delivery to anyone he has authorized to receive it, or delivery to a stranger for his use and on his behalf (Shep. 57). And 2 Eoll. Abr. (K.) 24, pi. 7; Taw v. Bury, Dyer, 167 b; 1 Anders. 4; and Alford v. Lea, 2 Leon. Ill; Cro. Eliz. 54; and 3 Co. 27, are clear authorities, that, on a delivery to a stranger for the use and on the behalf of the grantee, the deed will operate in-stanter, and its operation will not be postponed till it is delivered over to or ac- cepted by the grantee. The passage in Kolle's Abridgment is this: " If a man make an obligation to I., and deliver it to B., if I. get the obligation, he shall have action upon it, for it shall be intended that B. took the deed for him as his servant (3 H. 6, 27)." The point is put arguendo by Paston, Sergt., in 3 II. 6, who adds, " for a servant may do what is for his master's advantage, what is to his disadvantage not." In Taw v. Bury an executor sued upon a bond : the defendant pleaded, that he caused the bond to be written and sealed, and delivered it to Calmady to deliver to the testator as de- fendant's deed; that Calmady offered to deliver it to testator as defendant's deed, and the testator refused to accept it as such; wherefore Calmady left it with testator as a schedule, and not as defendant's deed, and so non est factum. On demurrer on this and another ground. Sir Henry Brown and Dyer, Justices, held that, first by the delivery of it to Calmady, without speaking of it as the defendant's deed, the deed was good, and was in law the deed of defendant before any delivery over to the testator, and then testa- tor's refusal could not undo it as defendant's deed from the beginning, and they gave judgment for the plaintiff, very much against the opinion of the Chief Justice, Sir Anthony Brown; but others of the King's Bench, says Dyer, agreed to that judgment. It was afterwards reversed, however, for a discontinuance in the pleadings. Sir A. Brown's doubt might possibly be grounded on this, that the delivery to Calmady was conditional, if the testator would accept it; and if so, it would not invalidate the position, which alone is nuiterial here, that an unconditional delivery to a stranger for the benefit of the grantee will inure immediately to the benefit of the grantee, and will 624 DOE cl. GARNONS V. KNIGHT [CHAP. X make the deed a perfect deed, without any concurrence by the grantee. And this is further proved by Alford v. Lea, 2 Leon. 110; Cro. Eliz. 54. That was debt upon an arbitration bond; the award directed, that before the feast of Saint Peter both parties should release to each other all actions. Defendant executed a release on the eve of the feast, and delivered it to Prim to the use of the plaintiff, but the plaintiff did not know of it until after the feast, and then he dis- agreed to it, and whether this- was a performance of the condition was the question. It was urged that it was not, for the release took no effect till agreement of the releasee. It was answered, it was immediately a release, and defendant could not plead non est factum, or countermand it, and plaintiff might agree to it when he pleased. And it was adjudged to be a good performance of the condition, no place being appointed for delivering it, and the defendant might not be able to find the plaintiff, and they relied on Taiv's Case. This, therefore, was a confirmation, at a distance of twenty-eight years, of Taw v. Bury; and at a still later period (33 Eliz.), it was again con- firmed in the great case of Butler v. Baker, 3 Co. 26 b. Lord Coke explains this point very satisfactorily. " If A. make an obligation to B., and deliver it to C. to the use of B., this is the deed of A. pres- ently. But if C. offer it to B., there B. may refuse it in 'pais, and thereby the obligation will lose its force (but, perhaps, in such case, A. in an action brought on this obligation cannot plead non est factum, because it was once his deed) ; and therewith agrees Hil. 1 Eliz., Ta^ve's Case, s. p. Bro. Ab. Donee, pi. 29; 8 Vin. 488. The same law of a gift of goods and chattels, if the deed be delivered to the use of the donee, the goods and chattels are in the donee pres- ently, before notice or agreement; but the donee may make refusal in pais, and by that the property and interest will be divested, and such disagreement need not be in a court of record. ISTote, reader, by this resolution you will not be led into error by certain opinions delivered by the way and without premeditation, in 7 Ed. 4, 7, &c., and other books obiter." LTpon these authorities we are of opinion that the delivery of this deed by Wynne, and putting it into the pos- session of his sister, made it a good and valid deed at least from the time it was put into the sister's possession. The remaining question then is this, whether this deed is void as against creditors under the 13 Eliz. c. 5, or as against defendant as a purchaser under 27 Eliz. c. 4? As to creditors, there was no proof of outstanding debts at the time of the trial, nor any proof of there being any creditor except the defendant, and he may be considered in the double character of creditor and purchaser. The facts in evi- dence as to him are merely these: that in May or June, 1820, Mr. Wynne delivered to his son a bond and mortgage for defendant and title deeds, and the mortgage and title deeds related to the same premises as Mr. Garnons' mortgage. What was the nature of the SECT. Il] HALL V. HAERIS 625 defendant's debt did not appear, or what was the consideration for the bond and mortgage. Whether any money was advanced when such bond and mortgage was given, or whether it was for a pre-exist- ing debt, whether it was obtained by pressure from the defendant, or given voluntarily and of his own motion by Mr. Wynne, and whether the defendant knew of it or not, are points upon which there was no proof, and under these circumstances we cannot say the defendant made out a case to entitle him to treat Mr. Garnons' deed as void under either of the Statutes of Elizabeth. Should he be able hereafter to show that his mortgage is entitled to a preference, the present verdict will be no bar to his claim. For these reasons we are of opinion that the rule for a new trial must be discharged. Rule discharged. HALL V. HAKRIS et Al. 5 Ired. Eq. (N. C.) 303. 1848. Cause removed from the Court of Equity of Montgomery County, at the Spring Term, 1848. The facts in this case are fully stated in a case between the same parties, HaU v. Harris, 3 Ired. Equity, 289, and so much of them as is necessary to the understanding of the decision now made is set forth in the opinion of the court here delivered. Pearson, J. When this case was before this court at June Term, 1844, it was decided, that an execution does not bind equitable inter- ests and rights of redemption from its teste, as in ordinary cases, but from the time of " execution served ; " and it was- declared that the plaintiff would be entitled to a decree, pro^nded the deed, under which he claimed, took effect before the execution, under which the defendant Harris claimed, was issued. 3 Ired. Eq. 289. We are satisfied, that the view then taken of the case was correct. The rights of the parties depend upon that single question. The execution issued on the 7th of March, 1840. The plaintiff alleges, that the deed took effect on the 2d of March, 1840. The facts are, that on the 2d of March the plaintiff and the defendant Morgan made an agreement, by which the plaintiff was to give Morgan $725, for the land, to be paid, a part in cash, and the balance in notes and specific articles, as soon as the plaintiff was able, which he expected would be in a few days, and Morgan was to make a deed to the plain- tiff, and hand it to Col. Hardy Morgan, to be by him handed to the ])laintiff, when he paid the price. Accordingly on that day the plain- tiff paid to Morgan a wagon and some leather, which was taken at the price of $.57.50 and Morgan signed and sealed the deed, and handed it to Col. Morgan to be handed to the plaintiff, when he paid the balance of the price. The deed was witnessed by Col. Morgan and one Sanders, and is dated on the 2d of March. Afterwards on the 626 HALL V. HARRIS [CHAP. X tenth of March, the plaintiflf paid to Morgan the balance of the $725, with the exception of $152, for which Morgan accepted his note, and the deed was then handed to the plaintiff by Col. Morgan. The question upon these facts is, whether the deed take effect from the 2d or from the 10th of March ? We are of opinion, that it takes effect from the 2d, at which time, according to the agreement, it Avas signed, sealed, and delivered to Col. Morgan, to be delivered to the plaintiff, when he should pay ^;he price. The effect of the agreement was to give the plaintiff the equitable estate in the land, and to give Morgan a right to the price. The purpose, for which the deed was delivered to a third person, instead of being delivered directly to the plaintiff, was merely to secure the payment of the price. When that was paid, the plaintiff had a right to the deed. The purpose, for which it was put into the hands of a third person, being accomplished, the plaintiff then held it in the same manner, as he would have held it, if it had been delivered to him in the first instance. This was the intention, and we can see no good reason why the parties should not be allowed to effect their end in this way. It is true, the plaintiff was not absolutely bound to pay the balance of the price. Perhaps, he had it in his power to avail himself of the Statute of Frauds, and it would seem from the testimony, that, at one time, he contemplated doing so, on account of some doubt as to the title; but he comjilied with the condition and paid the price. His rights cannot be affected by the fact, that he might have avoided it. If the vendor had died, after the delivery to the third person, and before the payment, the vendee upon making the payment, would have been entitled to the deed ; and it must have taken effect from the first delivery ; otherwise, it could not take effect at all. The intention was, that it should be the deed of the vendor from the time it was delivered to the third person, provided the condition was complied with. If this intention is hona fide and not a contrivance to interfere with the right of creditors, of which there is no allegation in this case, it must be allowed to take effect. A distinction is taken in the old books, between a case, when a paper, being signed and sealed, is handed to a third person, with these words : " Take this paper and hand it to A. B. as my deed upon condition," &c., and a case where these words are used, take " This deed and hand it to A. B. upon condition," Compare Wittenhrock v. Cass, 110 Cal. 1 ; Stewart v. Stewart, 5 Conn. 317; Gnlley v. Atkins, 78 Conn. 380; Owen v. Williams, 114 Ind. 179; Smileu v. Smiley, 114 Ind. 258; Brnum v. Austen, 35 Barb. (N. Y.) 341; Rathmell v. Shirey, 60 Ohio St. 187; Ladd v. Ladd, 14 Vt. 185; Schrcckhise v. Wiseman, 106 Va. 9. 638 NOLAN V. OTNEY [CHAP. X the delivery was made. The heirs brought a suit against Otney to have the deed set aside. The court sustained a demurrer to their evidence, and they prosecute error. Some months before his death Dolan handed the deed to one John Grimes, -with, directions after his death to give it to Otney. On the same occasion, however, Dolan said to Grimes : " Of course, if I ask you for the deed you would give it to me." Grimes answered that he certainly would, and Dolan. responded : " Martin will never ask for it." The day before he died, however, he gave Grimes instruc- tions in the presence of Otney to deliver the deed after his death, pro- vided Otney should haul some corn, pay a sum of money, and give a note for $100. These conditions were fully complied with, and, after the death of Dolan, Grimes handed the deed to Otney. The question which has been discussed by counsel, is w^hether the language of the deed, in connection with the circumstances attend- ing its delivery, shows the grantor to have intended that no title should pass until his death, in which case it would be testamentary in its character and therefore inoperative. [The court then considered Diirand v. Hlggins, 67 Kan. 110; Uhl v. Railroad Co., 51 "W. Ya. 106, 114; Love v. Blauw, 61 Kan. 496, 501; West v. Wright, 115 Ga. 277; Hunt v. Hunt, 82 S. W. (Ky.) 998; and continued as follows:] Applying the reasoning of these cases to the facts here presented, we are convinced that the real purpose of Dolan, so far as disclosed by the language of the deed now under consideration, notwithstand- ing his failure to express it in correct terms, was to vest a title im- mediately in Otney, reserving only a life-interest in himself; that is to say, the deed should be taken to mean this in the same sense and for the same reasons that such meaning is imputed in the case of the deposit of an ordinary deed under the same circumstances — the words relied upon to change the usual rule do not have that effect. (See as to the general rule Young v. McWilliams, ante, p. 243.) A further question arises with respect to the paragraph of the deed relating to the obligation of the grantee to care for and maintain the grantor during the remainder of his life. A very similar provision was held, in Culy v. Upham, 135 Mich. 131, 97 N". W. 405, 106 Am. St. Rep. 388, to make the instrument testamentary in character, and therefore invalid. [The court then discussed Only v. Upham, and continued as follows :] In the present case, although a part of the consideration of the deed was that the grantee should care for the grantor, the delivery to him was nowhere made to depend upon his doing so. The argument of the Michigan case has therefore no application to the provision referred to, and no reason appears for regarding such provision as fatal to the validity of the deed. Nevertheless the effect of imposing a condition upon the delivery by the custodian is here involved, for the last instructions given to Grimes included a direction to hold the deed until Otney should SECT, II] NOLAN V. OTNEY 639 perform certain acts, including the giving of a note. Probably the question Avhether there was a valid delivery must be determined by what took place at that time, for during the first conversation on the subject the understanding seemed to be that Dolan had not relinquished control, and such understanding was inconsistent with an effectual present delivery. (Coh v. Cole, [Mich.], 108 X. W. 101.) In Taft Y. Taft, 59 Mich. 185, 26 X. W. 426, 60 Am. Rep. 291, after an elaborate review of the authorities, the conclusion was reached that no valid delivery can be accomplished by the deposit of a deed with a custodian who is directed to hold it not only until the grantor dies but until the grantee does something on his part, and then deliver it — at least that such is the rule unless the re- quired act is one intended to be performed, or at all events capable of performance, while the grantor is yet alive. Otney did all the acts necessary to entitle him to the deed. Whether or not he in fact performed them before Dolan died, he might have done so, and his doing so may have been within the contemplation of the parties. But we do not care to rely upon this distinction. The vicAv that no effect can be given a deed placed by the grantor in the hands of a third person to be delivered upon his death, if the performance of some act by the grantee is made a condition of such delivery, is supported only by artificial reasoning. It proceeds upon substan- tially this argument : A deed entrusted to a stranger for delivery at the grantor's death can be upheld only upon the theory that it is not an escrow, but that the title passes when such deposit is made; and where the delivery to .the grantee is made to depend upon some act of his, the instrument is an escrow, and conveys no title until finally delivered, or at any rate until such act is performed. But while it is true that ordinarily title is not changed by an escrow until it is rightfully delivered — or until conditions have arisen such that it of right ought to be delivered — to the grantee, it is often held that such delivery when made Avill be deemed to operate by rela- tion as of the time the deposit was made. This is uniformly done when, as in Davis v. Clark, 58 Kan. 100, 48 Pac. 563, the death of the grantor makes an effective delivery thereafter theoretically impossible. (16 Cyc. 588; 11 A. & E. Encycl. of L. 346.) The fic- tion of an earlier delivery by relation is adopted in such cases to pre- vent a manifest hardship and Avrong. No reason is apparent why it may not be invoked in such a case as the present to effectuate the lawful intentions of the parties. The very conception that a deed deposited with a stranger to be delivered at the grantor's death operates as a present conveyance is a fiction of like charac- ter adopted for a like purpose. (16 Cyc. 566.) [The court then quoted from Craddoch v. Barnes, 142 X. C. 89, 96, 97.] It is true that in the case of an ordinary escrow it is the expec- tation of the parties that the matter shall be fully closed up before 640 ■ NOLAN V. OTNEY [CHAP. X any of them die, and where the death of one of them intervenes it occasions a situation that was never in their contemplation, while here an arrangement was deliberately made that the practical operation of the deed should begin after the death of the grantor, and after the fulfilment of the stated conditions. But we do ,,vO perceive in this fact any reason for resorting to a fiction to sup- port one transaction rather than the other. To call the requirement imposed on the grantee a condition prece- dent to the vesting of title is to beg the question; if the title is re- garded as passing with the delivery of the instrument to the cus- todian it is a condition subsequent, upon the non-performance of which the title will revert. So far as the grantor and his heirs are concerned there is no possible hardship in considering that when he has placed the deed beyond his recall — when in spite of anything he can do it must ultimately become fully effective — it becomes operative in contemplation of law at once. ISTo difficulty is presented with respect to the intervening rights of creditors, because as against them no resort could be had to the fiction. The situation in this respect is not affected by the conditions attached to the final delivery, for the same distinction is made where none is imposed. Such a case was presented in Rathmell, Exr., v. Shirey et al, 60 Ohio St. 187, 53 N. E. 1098, although the instrument is there spoken of and treated as an escrow. The syllabus reads : "An instrument for the conveyance of lands without substantial valuable consideration, deposited with a third person as an escrow to be by him delivered to the grantee on the death of the grantor, does not, by relation, vest the title in the grantee at the date of the first delivery to the prejudice of persons who thereafter, without knowledge of the instrument, extend credit to the grantor." In the opinion it was said : " Whatever terms may be employed in stating the exception, the relation back to the first delivery is always to accomplish, and never to defeat, justice. Bearing in mind the purpose of this ex- ception, and the fact that the deed before us was without any sub- stantial consideration, it is quite apparent that the conclusion of the circuit court that the relation back should be allowed to cut off the claims of those who gave credit to the testator between the first and second deliveries, and without knowledge of the instrument is erroneous. That conclusion derives no support from CrooJcs v. Crooks, 34 Ohio St. 610, or Ball v. Foreman, 37 Ohio St. 132, where the title was held to pass as of the date of the first delivery for pur- poses clearly within the exception as above stated." (Page 198.) The theoretical difficulties regarding the location of the title prior to the performance of the conditions, if the principle of relation is applied in this case, are really no greater than in any other where tesort to the fiction is had; for instance, in those cases where there is uo actual acceptance until after the grantor's death. Ac- SECT. II ] COOK V. BROWN 641 ceptance is of course essential to the validity of any deed, yet it is common for deeds to be upheld of the existence of which the grantee never heard in the lifetime of the grantor, his acceptance being permitted to be operative by relation as to the time the grantor surrendered control. Where its terms are purely beneficial to the grantee his acceptance is presumed, but this is only a matter of evidence. "As stated by Justice Ventris in Thomson v. Leach, 2 Vent. 198, a man * cannot have an estate put into him in spite of his teeth.' But the presumption that a person will accept a pure, unqualified gift is so strong that the courts have quite generally manifested a disposition to act upon such presumption in the interim as a working rule for the operation of conveyances." (Emmons v. Hard- ing, 162 Ind. 154, 159, 70 N". E. 142.) If under such circumstances the beneficiary should finally from any whim or caprice refuse to accept the deed, when after the death of the grantor he learns of its existence, the situation would not be greatly different from that presented by his failure to perform an affirmative act where one is required of him as a condition for its final delivery. The question is not free from doubt, but our conclusion is that the deed here involved may be upheld upon the theory suggested. By such research as has been practicable in the time available for the purpose we have found but two modern cases other than those already cited in which the grantor placed a deed with a third per- son for delivery after his death upon conditions to be performed by the grantee. They are Gammon v. Bunnell, 22 Utah, 421, 64 Pac. 958, and McCurry v. McCurry, [Tex. Civ. App.], 95 S. W. 35. In each of these the deed was upheld, but in neither was there any ex- tended discussion of the effect of the conditions. The judgment is affirmed. Greene, Burch, Smith, Porter, Graves, JJ., concurring. Johnston, C. J., concurs in the judgment, but not in all said in the opinion.^ COOK r. BllOWN 34 N. H. 460. 1857. Writ of Entry.- Eastman, J. The question which was found for the plaintiff, and upon which the verdict was rendered, was the delivery of the 1 Compare Prcwiit v. Ashford, 90 Ala. 294; Hunter v. Hunter, 17 Barb (N. Y.) 25; DeBow v. Wolhyibcrg, 52 Oreg. 404; Daris v. Brigham. 56 Orep. 41; Campbell v. Thomas, 42 Wi.s. 437; Graham v. Graham, 1 Ves. Jr. 272; Pro- fcs.sor Ralpli W. Aigler in 16 Midi. L. Rev. 569. - Onl.v the opinion, and only that part of the opinion which relates to the question of deliverj-, is given. 642 COOK V. BROWN [chap. X deed by Mrs. Brown, the defendant's husband, to liichard F. Fifield. If this deed was not delivered, the demandant was entitled to recover ; and the jury, under the rulings and instructions of the court, have found that it was not. But were the instructions of the court correct in regard to the delivery of the deed? This is the important question of the case. The court instructed the jury that if the deed was in the hands of the depositary, to be delivered to. the grantee, either before or after the death of the grantor, without the grantor's reserving a control over it, then there was a good delivery. But if the grantor reserved such a full control over the deed during her life, and to the last moment of her life, there was no delivery. If she always had the right to control the destination of the deed, there was not a delivery, but if she at any time relinquished her right in favor of the grantee, there was a delivery; that the question was, whether she always, until her death, continued to have the right to recall the deed, if she pleased, and not whether she did in fact recall it. The court were requested to instruct the jury, that if the deed was to remain in the hands of the depositary during the life of the grantor, sub- ject, however, during that time to be revoked by the grantor, and if not revoked then to be recorded, the deed might be regarded as the deed of the grantor from the time of the delivery to the dej)ositary, if it was not subsequently revoked. These instructions the court declined to give, and gave those which we have stated. The point of difference between the two was this : The court held that in order to make the delivery good, it was essential that the grantor should part with her dominion over the deed. That the time when the grantee was to receive it was not material, whether at or before the decease of the grantor, but that the delivery to the depositary must be without the power of recall in the grantor ; while the defend- ant contended that if the deed was in fact delivered in pursuance of the directions of the grantor, it made no difference that the grantor had reserved the right of recalling the deed at any time. In Shed v. Shed et al., 3 ]^. II. 432, where A. made an instrument purporting to convey to his two sons, B. and C, certain tracts of land, with a reservation of the use of the land to himself during his life, and delivered the instrument to D. to be delivered to B. and C. as his deed, after his decease, in case he should not otherwise direct; and A. died without giving any further directions — it was held, that the instrument was to be considered as the deed of A. from the first delivery, and that it might operate as a covenant by A. to stand seised of the land to his own use during life, remainder to B. and C. in fee. Richardson, C. J., in delivering the opinion, says : '' In the case now before us, the writing was intended to effect a mere volun- tary disposition of the land ; and why the grantor might not reserve to himself a right to revoke the writing if he saw fit, does not readily occur to our minds. If he might legally deliver the writing abso- SECT. Il] COOK V. BROWN 643 lutely, to take effect on his decease, we do not see why he might not deliver it condit,ionally, as an escrow, to take effect upon his de- cease, in case he did not change his mind and revoke it. Being the absohite owner of the estate, it seems to us that he had an in- contestable right to deliver the instrument, absolutely or condition- ally, according to his will and pleasure." The decision in that case would appear to be in point for the de- fendant, but we do not find any other case in our own Reports, and but one or two in' others, which go to that extent. On the other hand, there are many authorities which seem to us to establish a somewhat different rule. In Farher v. Bust in, 2 Foster, 424, a grantor executed a deed and delivered it to a third person, with instructions to deliver it to the grantee upon the grantor's death. He afterwards told the grantee that he had given him the land, and directed him to take possession of it, which the grantee did, and afterwards remained in possession; and it was held, that it was a question of fact for the jury, upon the evidence, whether the grantor deposited the deed with the third person, to be delivered at his decease, without reserving any con- trol over it during his life; and that the deed should be considered as delivered or not, as the finding of the jury might be on the ques- tion of his intention. That is to say, if he intended to reserve a control over the deed, it was no delivery; but if he did not so in- tend, it was a delivery. In Doe V. KnigM, 5 Barn. & Ores. 671, the court told the jury that the question was for them to decide whether the delivery to the depositary was, under all the circumstances of the case, a departing with the possession of the deed and of the power and control over it for the benefit of the grantee, and to be delivered to him, either in the lifetime of the grantor or after his death; or whether it was delivered to the depositary, subject to the future control and dis- position of the grantor. If for the latter purpose, they should find for the defendant. The point in that case was distinctly put ; the defendant was seeking to defeat the deed, and the court luld tlic validity of the deed to depend upon the question, whether tlic (h'- livcry to the depositary was or not subject to the future control of the grantor. In Commercial Bank v. Reel-less, 1 Halstead's Ch. 430, it was held that, to constitute the delivery of a deed, the grantor must part, not only with the possession l)Ut with the control of it, and de- prive himself of the right to recall it. In Baldwin v. MauUshy, 5 Iredell 505, it was held thnt whore there had been no delivery in the lifetime of the grantor, a delivery after his death, though at his request, is void. In Maynard v. Maynard, 10 Mass. 456, the court, in speaking of the deed which was in controversy in that case, and of the grantor, say : " He probably chose to consider it as revocable at all times by 644 COOK V. BROWN [chap. X himself, in case of any important change in his family or estate. Whatever may have been his views, however, he retained an authority over it." It is tlie retaining of the authority over it that shows the delivery to be incomplete. Jackson v. Fhvpps, 12 Johns. 421; Jack- son V. Dunlap, 1 Johns. Cas. 114; 1 Devereux Eq. 14; C. W Dudley's Eq. 14; Hooper v. Ramshottom, 6 Taunton, 12; Ilabergham v. V in- rent, 2 Ves. Jr. 231. All of these authorities differ essentially from that of Shed v. Shed, and it appears to us that they are founded upon sounder principles. The delivery of a deed is either absolute or conditional; absolute when it is to the grantee himself or to some person for him; when the grantor parts with all control over it, and has no power to re- voke or recall it ; conditional, wdien the delivery is to a third person, to be kept by him luitil some conditions are to be performed by the grantee. When the delivery is absolute, the estate passes at once to the grantee; hut when conditional, the estate remains in the grantor until the condition is performed and the deed delivered over to the grantee. Strictly speaking, a conditional deed is not a deed, but an escrow, a mere writing, the effect of which is to de- pend upon the performance of the conditions by the grantee. If they are performed it becomes a deed, otherwise it is a mere nullity. Co. Lit. 36; Cruise, title 32, ch. 2; 2 Black. Com. 307; 4 Kent's Com. 454; Jaclson v. Caflin, 2 Johns. 248; Carr v. Hoxie, 5 Mason, 60; Shep. Touch. 57, 58. By fiction of law an escrow is sometimes made to take effect from the first delivery. The relation back to the first delivery, however, is allowed only in cases of necessity, to avoid injury to the operation of the deed from events happening between the first and second delivery. 4 Kent's Com. 454; Perkins on Conveyancing, § 138; 3 Coke, 30; 3 Black. Com. 43; Frost v. Bechman, 1 Johns. Ch. 297; 5 Co. 84 b. A deed which is put into the hands of a third person, to be delivered to the grantee on the happening of some future event, but where no conditions are to be performed, is not an escrow or conditional deed. Its delivery is not dependent upon any condition to be performed, but it is a valid deed from the beginning, and the holder is but a trustee or agent for the grantee. In such a case the grantor has parted with all control over the deed. Perkins, §§ 143, 144; 6 Mod. 217; Foster v. Mansfield, 3 Met. 412; 4 Kent's Com. 455; Stilhuell V. Huhhard, 20 Wendell, 44. But so long as a deed is within the control and subject to the authority of the grantor, there is no delivery. And whether in the hands of a third person or in the desk of the grantor, is immaterial, since in either case he can destroy it at his pleasure. To make the delivery good and effectual, the power of dominion over the deed must be parted with. Until then the instrument passes nothing; it is SECT. Ilj COOK V. BROWN 645 merely ambulatory, and gives no title. It is nothing more tlian a Avill defectively executed, and is void under the statute. Rev. Stat, chap. 156, § 6; Hahergham v. Vincent, 2 Ves. Jr. 231; Powell on Dev. 13 ; 1 Rob. on Wills, 59 ; 4 Bro. Ch. 353 ; Rob. on Frauds, 337. The case of Hahergham v. Vincent was that of a deed, to take effect by way of appointment, after the death of the party. The subject Avas elaborately discussed and fully considered by the Chan- cellor and Justices Wilson and Buller. In the course of the dis- cussion, Buller says : " A deed must take place upon its execution or not at all. It is not necessary for a deed to convey an immediate interest in possession, but it must take place as passing that interest, to be conveyed at the execution, but a will is quite the reverse." And, after examining the various authorities upon the point, he adds: "These cases have established that an instrument in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will. The cases for that are both at law and in equity, and in one of them there were express words of immediate grant, and a consideration to support it as a grant; hut as upon the whole the intention was that it should have a future operation after death, it was considered as a will." And the court all hold, tluit the instru- ment then under consideration, though called a deed, though in form a deed, was in its nature testamentary, and being attested by only two witnesses, could not pass the freehold estate contrary to the provisions of the Statute. Again, delivery of a deed is as essential to pass an estate as the signing, and so long as the grantor retains the legal control of the instrument, the title cannot pass any more than if he had not signed the deed. A deed may be signed by a third person by virtue of a power-of-attorney, duly executed, and so may it be delivered to a third person, to be delivered to the grantee. But the authority in such cases must be executed during the life of the grantor, otherwise it " availeth nothing," for no man can create an authority which shall survive him. After his decease the right " is forthwith in the heir." Lit. § 66; Willes, 105; Co. Lit. 52 b. There must be a time when the grantor parts with his dominion over the deed, else it can never have been delivered. So long as it is in the hands of a depositary, subject to be recalled by the grantor at any time, the grantee has no right to it, and can acquire none; and if the grantor dies without parting with his control over the deed, it has not been delivered during his life, and after his decease no one can have the power to deliver it. The depositary must have had such a dominion over the deed during the lifetime of the grantor as the latter could not interfere with, in order to have any control over it after his decease. We think the instructions of the c.ourt below were correct; and that if the grantor, until her death, reserved the right to recall the deed from the hands of the depositary, there was no delivery. 646 COOK V. BROWN [chap. X The law of the case is not changed by treating this instrument as a deed of bargain and sale, or by way of covenant to stand seised for uses, as contended by the defendant's counsel. The Statute of Uses, 27 Henry VIII., has been adopted in this State, and a freehold estate in futuro may be thus conveyed. French v. French, 3 jNT. H. 234; Bell v. Scammon, 15 N". H. 381. This instrument may perhaps be regarded either as a deed of bargain and sale, or as a covenant to stand seised for uses. A bargain and sale requires a pecuniary con- sideration. 4 Cruise, 110; Jackson v. Fishe, 10 Johns. 456; and a conveyance to stand seised for uses requires the consideration of blood or marriage. 4 Cruise 120; 4 Kent's Com. 493; Rex v. Scam- monden, 3 Term 474; Underwood v. Campbell, 14 N". H. 393. This instrument had expressed in it a small pecuniary consideration, and the evidence would seem also to show a sufficient relationship upon which to found a deed to stand seised for uses. But delivery is as essential to the valid operation of an instrument of this kind as to one conveying the estate immediately; and the jury having found that this deed was never delivered, a verdict for the plaintiff followed as a necessary consequence. If the owner of land desires to convey the same, but not to have his deed take effect until his decease, he can rhake a reservation of a life estate in the deed ; or it may be done by the absolute delivery of the deed to a third person, to be passed to the grantee upon the decease of the grantor; the holder in such case being a trustee for the grantee. But if he wishes to retain the power of changing the disposition of the property at his pleasure, that can only be properly effected by will. So long as he retains the instrument, whether in the form of a deed or will, in his power, the property is his. The motion in arrest of judgment cannot prevail. The count was Buffieient after verdict. The verdict having been returned for the plaintiff, and the rulings and instructions to which the defendant excepted having been sus- tained, it becomes unnecessary to consider the exceptions which were taken by the plaintiff, and there must be Judgtnent on the verdict.^ 1 See Culver v. Carroll, 175 Ala. 469; Whitlenbrock v. Cass, 110 Cal. 1; Kenney v. Parks, 125 Cal. 146; WcUhorn v. Weaver, 17 Ga. 267; Stevens V. Stevens, 256 111. 140; Deitz v. Deitz, 295 111. 552; Osborne v. Eslinger, 155 Ind. 351; Kirhy v. Hulette. 174 Ky. 257; Carey v. Dennis, 13 Md. 1; Taft V. Taft, 59 Mich. 185; Saltzsieder v. Saltzsieder, 219 N. Y. 523; Fortune v. Hunt, 149 N. C. 358; Huddleston v. Hardy, 164 N. C. 210; Campbell v. Thomas, 42 Wis. 437; Williams v. Daubner, 103 Wis. 521; Kittoe v. Willey, 121 Wis. 548. But compare Lippold v. Lippold, 112 Iowa 134; Daggett v. Simonds, 173 Mass. 340; Worth v. Case, 42 N. Y. 362; Henry v. Phillips, 105 Tex. 459. SECT. II] SCHrRTZ V. COLVIN 647 SCHURTZ, Administrator v. COLVIX et Al. 55 Ohio St. 274. 1896. MiNSHALL, J.^ There can be no question but that James E. Colvin waived his lien as a vendor by taking a mortgage on the granted premises and other lands of the grantee, to secure the purchase money. Such is the settled law of this state. The court's conclu- sion of law as to this is correct, and not now questioned by the de- fendant in error. So that the only question here presented, is as to whether it erred in its second conclusion, that, ui)on the facts found, the mortgage of James E. Colvin, being subsequent in point of time, is superior in equity to the Schurtz mortgage. Priority is claimed on the ground that at the time the Schurtz mortgage was taken, James E. Colvin held the legal title to his interest in the premises, subject, however, to a legal obligation to convey to James Colvin as purchaser, on his paying tlie purchase money or securing it to be paid. If the facts found will bear this simple construction, then there can be no question as to the correctness of the court's con- clusion of law thereon. In such case the legal title of James E. Colvin would have been notice to the world of his rights in the property; and no one could have acquired an interest in it superior to his by mortgage or otherwise. The question, however, is whether the facts as found will bear this construction as between James E. Colvin and the Schurtzs. James E. Colvin had by a verbal agree- ment made in 1884, sold his interest in the premises to James Col- vin, who went into possession under the agreement and was in pos- session at the time the Schurtz loan was made. Some time before the making of the Schurtz mortgage, James E. Colvin with his co- tenant, Silas H. Colvin, executed a deed for the land to James ( 'olvin, the purchaser, and placed it in the hands of a third person, Howard Colvin, to be delivered when the purchase money was paid or secured by mortgage. Afterward, for the purpose of enabling James Colvin to obtain a loan of money on the land, Howard de- livered the deed to him that he might obtain a description of tlie premises and exhibit it as evidence of his title. The facts found hear this construction and none other. It is true that from the facts found it was not to be regarded as delivered. But the law . lias always attached much importance to an overt act. It contra- venes its spirit to allow that an act may be done with an intention contrary to the act itself. And whilst, as between parties, the in- tention '^nay be shown, it seldom permits this to be done, where to do so would work a fraud on innocent third persons. Here, whilst James Colvin was in possession of the land and of a deed to it by James E. Colvin, of whom he had purchased, the Schurtzs, on 1 The opinion only i.<: printed. 648 SCHURTZ V. COLVIN [CHAP. X the faitli of these appearances, loaned him $6,500, and took a mort- gage on the land to secure its payment; and, as the court expressly finds, without any knowledge that the deed had ever been held as an escroiv by any one, and that it was taken in good faith without any knowledge that James E. Colvin had or claimed any interest in or lien on the land. It would seem on the plainest principles of justice, that under these circumstances James E. Colvin, as against the owner of the Schurtz mortgage, should not be heard to say that the deed had not in fact been delivered at the time the mortgage was made, and that his equity is superior to it. He trusted Howard with the deed to be delivered when the conditions had been performed. Howard violated his trust. He delivered it to the grantee that the latter might obtain a loan on the land by exhibiting it as evidence of his title. The loan was so obtained of persons who had no knowledge of the facts and were entirely innocent of any fraud in the matter. Who then should suffer the loss? It may be regarded as one of the settled maxims of the law, that where one of two innocent persons must suffer from the wrongful act of another, he must bear the loss who placed it in the power of the person as his agent to commit the wrong. Or, more tersely, he who trusts most ought to suffer most. And it would seem, that the rights of the parties in this case should be governed by this principle, unless there is some rigid exception established by the decessions [decisio;is?], which forbids its application where a deed is delivered in escrow. Before considering this question, it may be well to note that no importance can be attached to the fact that the deed, on the faith of which the loan was made, had not yet been recorded. A deed on delivery passes title to the land whether recorded or not. It takes effect on delivery. The object of recording a deed is to give notice to third persons, not to perfect it as a muniment of title. Where not recorded it will be treated as a fraud against third persons dealing with the land without notice of its existence. Hence, the first deed, if delivered, having been duly executed, passed the title to James Colvin. Recording it would have added nothing to its effect as a deed; and the failure to record it in no way influenced the conduct of any of the parties to the suit. There are some cases which seem to hold that, where a deed is delivered as an escrow to a third person to be delivered on the per- formance of certain conditions, no title passes if delivered without the conditions being performed; and that this is so as against an innocent purchaser from the vendee. Everts v. Agnes, 6 Wis. 463, is such a case. The argument there is that no title passes by deed without delivery; that where a deed is delivered by one who holds it as an escroiv, contrary to the vendor's instructions, there is no delivery, and consequently an innocent purchaser acquires no title. To the objection that if this be true there is no safety for purchasers, SECT. Il] SCHURTZ V. COLVIN 649 the court said that if it be not true, tliere is none for vendors. This seems to be a misconception of the real situation of the parties. A vendor may protect himself. He may either retain the deed until the vendee pays the money or select a faithful person to hold and deliver it according to his instructions. If he selects an unfaithful person, he should suffer the loss from a wrongful delivery, rather than an innocent purchaser without knowledge of the facts. In purchasing land, no one, in the absence of anything that might awaken suspicion, is required, by any rule of diligence to inquire of a person with whom he deals, whether his deed had been duly de- livered. Where a deed is found in the grantee's hands, a delivery and acceptance is always presumed. ITa-sA. Real Property, 5th Ed., 312, pi. 31. The fact that under any other rule "no purchaser is safe," had a controlling influence with the court in Blight v. Schenck, 10 Penna. St. 285, 292. In this case the question was whether a deed had been delivered, the defendant being an innocent purchaser from the vendee of the plaintiff. In discussing the case the court used this language: "Here Curtis, who, it is alleged, delivered the deed contrary to his instructions, was tlie agent of the grantor. If a man employs an incompetent or unfaitiiful agent, he is the cause of the loss so far as an innocent purchaser is concerned, and he ought to bear it, except as against the party who may be equally negligent in omitting to inform himself of the extent of the author- ity or may commit a \\Tong by acting knowingly contrary thereto." And the case was disposed of on this principle. The case on which most reliance is placed by the defendant in error, is that of Ogden v. Ogden, 4 Ohio St. 182. The facts are somewhat complicated. It seems to have grown out of an agreement for an excliange of lots between two of the parties, each being the equitable owner of his lot. The deed for the lot of one of them, David Ogden, was to be delivered by the legal owner to the other on his performing certain conditions, and was delivered to a third person to be delivered on the ])erfornuince of the conditions. It was delivered without the conditions being performed; and was then mortgaged by the grantee to the defendants, Watson and Stroh, who claimed to be innocent purchasers for value. But it was charged in tli(^ bill that they took their mortgages with notice and to cheat and defraud the complainant; and it does not distinctly appear whether this was true or not. From the reasoning of the court it would seem that the deed had been obtained from the party holding it in some surreptitious nianiiei'. It is first conceded "that if David reposed confiidence in (lilhert, and he violated that confidence and delivered the deed, and loss is to fall on either David or the mortgagees, that David should sustain that loss, and not tlie innocent mortgagees." Instances are then given in whicli the rule would be otherwise — an innocent ])urclinser from the l)ailee of a horse, or of stolen property, or from one wlio li;i(I cither stolen or siiiTeptitionsiy olilained his 650 SCHURTZ V. COLVIN [CHAP. X deed. There is no room for doubt in either of these cases. But the court then observes that. " If the owner of land makes a deed pur- porting to convey his land to any one, and such person by fraud or otherwise procures the owner to deliver the deed to him, a bona fide purchaser from such fraudulent grantee without notice of the fraud, might acquire title to the land." This, we think, is equally clear; but, unless the deed in the ca§e had been stolen or surrepti- tiously obtained, or the mortgagees were guilty of the fraud charged, then, on the reasoning of the court, the decree should have been in their favor. If the case is to be understood as holding differently, then it is not in accord with the later decision in Resor v. RaiU road Company, 17 Ohio St. 139. Here the owner of a tract of land contracted to sell it to the company, but refused to deliver the deed until paid. An agreement was then made by which the deed was placed in the hands of the president, but it was not to be considered delivered until payment had been complied with, and the company went into possession. The president wrongfully placed the deed on record, and the company then mortgaged its entire property to secure an issue of bonds. The court held the bond-owners to be innocent purchasers, and that the plaintiff was estopped from setting up his claim as against them. It might be claimed that the delivery by Resor was to the purchaser, the company; and that a deed cannot be delivered as an escrow to the vendee. The latter statement is true. But as a matter of fact it was delivered to the president of the com- pany and not to the company itself. There is no reason why the president could not have held it as an escrow, and under the agree- ment, must be regarded as having so held it. Railroad Co. v. Iliif, 13 Ohio St. 235; Wafl-im v. Nash, L. R., 20 Eq., 262; Ins. Co. v. Cole, 4 Fla. 359. The plaintiff trusted the president to hold the deed, and it was his wrongful act that disappointed him. The supreme court of Indiana is a well-considered case, Quich v. MUligan, 108 Ind. 419, the facts of which are very similar to the case before us, held that where a deed is delivered to a third person to be delivered the grantee, who is already in possssion of the land, on payment of the purchase money, and is delivered without the con- dition being performed that the vendor is estopped as against an innocent purchaser to set up his title. See also, and to the same effect, the following cases: Bailey v. Crim, 9 Biss. 95; Haven v. Kramer, 41 Iowa 382; Blight v. SchencJc, 10 Penna. St. 285. It is the general, if not universal, rule of the courts, to protect the innocent purchaser of property for value, against such vices in the title of their vendors, as result from fraud practised by them in ac- quiring the property. For in all such cases the party complaining is found to have been guilty of some negligence in his dealings, or to have trusted some agent who has disappointed his confidence and is more to blame for the consequences than the innocent purchaser, so that his equity is inferior to that of such purchaser. Hence, it is. SECT. Il] SCHURTZ V. COLVIN 651 that the innocent purchaser for vahie from a fraudulent grantee, is ahvays protected in his title as against the equity of the wronged grantor. In Hoffman v. Strohecker, 7 Wats. 86, where a sale has been made under execution upon a satisfied judgment, the satisfac- tion not appearing of record, an innocent purchaser of the person who purchased at the sale was protected in his title, although the purchaser at the sale had knowledge of the facts, and acquired no title. A similar holding had been made by the same court in Price V. Junkins, 4 Wats. 85, and in Fetterman v. Murphy, Id. 424. In the case of Price v. Junkins it is said "An innocent purchaser of the legal title, without notice of trust or fraud is peculiarly protected in equity, and chancery never lends its aid to enforce a claim for the land against him." Most of the cases cited and reliecl on by the defeiulant are not in ])oint. Where the grantee wrongfully procures the holder of a deed as an escrow to deliver it to him, he acquires no title, or at least a voidable one; but this is a very different case from where a third person without notice, afterward and while the grantee is in posses- sion, deals with him in good faith as owner. Again, it may be con- ceded that the delivery of a deed by one who simply holds it as a de- positary, transfers no title; but if he holds it as an escrow, with power. to deliver it on certain conditions, a delivery, though wrongful, is not in excess of his authority for, in such case, the act is within his authority and binds the principal as against an innocent party. And so a deed held in escrow, delivered after the death of the princi- pal, passes no title. It will readily a])pear, from reasons already given, that such cases are without ap])li('ation to the case under re- view. Here it will be conceded tluit as between the grantor and the grantee the latter took no title, because delivered by Howard con- trary to his instruction. But the plaintiff relies on the fact that, as he had no knowledge that the deed had ever been held as an escrow and, in good faith, loaned his money and took a mortgage on the land to secure it; and that the defendant is therefore estopped from setting up his legal title as against him. But it is claimed that, as the plaintiff relies on an estoppel, he should have ])lea(le(l it. This rule, however, only api^lies where the ]>arty has had ;iii opportunity to do so. In this case lie hml none until the evidence had been introduced. The defendant, in his answer and cross-petition, set up that tlic deed from him had ])een placed in escrow and wrongfully delivered to the grantee and that the i)laintiff had knowledge of the facts. The plaintiff th(Mi averred his want of any knowledge or belief as to the facts stated by tlir de- fendant and denied them. The court, however, found that the deed had been delivered to Howard (^olvin to be held as an escrow and Avas by him wrongfully delivered to the grantee; but also found that the plaintiff was ignorant of the facts, and an innocent purchaser for value without notice. The object of pleading is to inform the oppo- 652 XENOS V. WICKHAM [CHAP. X site party of the facts upon which the pleader relies as the ground of his claim or defence. And here, when the plaintiff denied knowl- edge of the facts as pleaded by the defendant, he fairly advised the defendant that he relied on an estoppel, on the ground of want of notice, should the facts as pleaded be made to appear in the evidence ; for, that he was a purchaser for value appeared from his petition, which was taken as true as it was not controverted. Hence the claim of the plainitff could in no way surprise the defendant unless he was ignorant of the law. The first opportunity the plaintiff had to plead an estoppel as against James E. Colvin, was when the facts were fully made to appear in evidence; and he is not therefore precluded from doing so on the facts as found by the court. Judgment reversed and judgment on the facts for plaintiff in error} XENOS AND Another v. WICKHAM L. R. 2 H. L. 296. 1866. " Then, assuming that the intention really was that the policy should he binding as soon as executed, and ishould be kept by the company as a bailee for the assured, the question of law arises, whether the policy could in law be operative until the company parted with the physical possession of the deed. " I can, on this part of the case, do little more than state to your Lordships my opinion, that no particular technical form of words or acts is necessary to render an instrument the deed of the party sealing it. The mere affixing the seal does not render it a deed; but as soon as there are acts or words sufficient to show that it is intended by the party to be executed as his deed presently binding on him, it is sufficient. The most apt and expressive mode of indicat- ing such an intention is to hand it over, saying : ' I deliver this as my deed ; ' but any other words or acts that sufficiently show that it was intended to be finally executed will do as well. And it is clear on the authorities, as well as the reason of the thing, that the deed is binding on the obligor before it comes into the custody of the obligee, nay, before he even knows of it; though, of course, if he has not previously assented to the making of the deed, the obligee may re- fuse it. In Butler and Baker's Case, 3 Co. Eep. 26, it is said : ' If A. make an obligation to B., and deliver it to C. to the use of B., this is the deed of A. presently; but if C. offers it to B., there B. 1 See Baillarge v. Clark, 145 Cal. 589; Maijs v. Shields, 117 Ga. 814; Quick V. Mulligan, 108 Ind. 419; Havim v. Kramer, 41 Iowa 382; Leonard v. Sfiale, 266 Mo. 123. By the weight of authority an innocent purchaser from the grantee is not protected. Cobban v. Conklin. 208 F. R. 231 ; Smith v. South Roijalton Bank, 32 Vt. 341; and cases collected in Devlin, Deeds, 3d ed., § 322. SECT. II ] BOYD V. SLAYBACK 653 may refuse it in pais, and thereby the obligation will lose its force.' I cannot perceive how it can be said that the delivery of the policy to the clerks of the defendant, to keep till the assured sent for it, and then to hand it to their messenger, was not a delivery to the defendant to the use of the assured There is neither authority nor principle for qualifying the statement in Butler and Balcer's Case, by saying that C. must not be a servant of A., though, of course, that is very material in determining the question whether it was ' de- livered to C, to B.'s use,' which I consider it to be, in other words, Avhether it was shown that it was intended to be finally executed as binding the obligor at once, and to be thenceforth the property of B." — Per Blackburn, J., L. R. 2 H. L. 312.^ BOYD V. SLAYBACK et Al. 63 Cal. 493. 1883. Appeal from a judgment of the Superior Court of San Diego County. The action was brought against Robert Taggart, a minor, and against O. M. Slayback, as administrator of the estate of Mary B. Taggart, and as guardian of Robert Taggart, to quiet title to cer- tain lands alleged to have been sold to the plaintiff by Mary B. Tag- gart. The plaintiff alleged that some time subsequent to the exe- cution and delivery of the deeds to him, by whicTi the lands were convej^ed, they were left at the residence of Mrs. Taggart in a tin box, and that after her death it was discovered that the deeds had been abstracted. The defendant denied the execution and delivery. The deeds were not recorded. The other facts appear in the opinion of the court. Per Curiam.- The judgment must be reversed for error in the charge to the jury. The court below charged : "A grant, duly exe- cuted, is presumed to have been delivered ; therefore, if you find from the evidence that Mrs' Taggart actually signed and acknowledged tlie deeds in question, the law will presume that they were duly de- livered, and in order to defeat this presumption, the party disputing the delivery must show, by preponderance of proof, that there was no delivery." 1 And see Gulj Red Cedar Co. v. Crenshaw, 169 Ala. 606; Stephens v. Stepheyis, 108 Ark. 53, 57; Little v. Eaton, 267 III. 623; Moore v. Hazclton, 9 All. (Mass.) 102; Ruckman v. Ruekman, 32 N. J. Eq. 259. 260; Mitchell v. Ryayi, 3 Ohio St. 377; Matson v. Johnsoi}, 48 Wash. 256; authorities collectod in 1 Devlin, Deeds. 3d cd, § 262; 2 Tiffany, Real Prop., 2d ed.. § 461. But compare Storey v. Storey, 214 F. R. 973 (promissory notes) ; Clark V. Creswell, 112 Aid. 339, 342; Lynch v. Lynch, 121 Miss. 752; Rountree v. Ronnlree, 85 S. C. 383. 2 Part of the opinion relarting to other points is omitted. 654 MAYNARD V. MAYNARD [CHAP. X This was error. A deed takes effect only from the time of its de- livery. Without delivery of a deed it is void. No title will pass without delivery. 23 Cal. 528 ; 30 Cal. 208 ; 32 Cal. 610. It is for the party claiming under a deed to prove its delivery. Sometimes slight evidence will be sufficient to support a finding of delivery, but no legal presumption of delivery arises from the mere fact that the instrument is " signed." The acknowledgment only proves that it was signed. Judgment reversed and cause remanded for a new trial} MAYN"ARD V. MAYj^ARD and Others 10 Mass. 456. 1813. This was a writ of entry sur disseisin, brought to recover posses- sion of a certain tract of land in Marlborough, wherein the demand- ant counts upon his own seisin within thirty years, and uj^on a disseisin by the tenants. A trial was had upon the general issue, at the sittings in this county after the last October Term, before Parher, J., who reports that the demandant's title is unquestioned, unless taken away by a certain deed, now cancelled, which purports to convey the same to his son, Abel Maynard, deceased, under whom the tenants claim to hold the same, the said Nancy being the widow, and the other tenants the children, of the said Abel. The deed, wdiich purports to have been made by the demandant, for the consideration of 2,000 dollars, and contains the usual cove- nants of warranty, was made under the following circumstances. In April, 1810, Hezekiah Maynard, the demandant, called upon Ben- jamin Rice, Esq., who is a subscribing witness to the execution of the deed, and the magistrate before whom it was acknowledged, and told him he wished to make some provision for his son Abel, and re- quested the witness to write a deed of the land, being part of the de- mandant's farm, which is described in the deed. This was done by the witness, who read it to the demandant, and he was satisfied with it. A few days afterwards, he called on the witness, and signed, sealed, and acknowledged the deed; and he requested the witness to take it to the register's office, and get it recorded. The witness car- ried it to the register accordingly, procured it to be recorded, and, in May following, received it back. The witness informed the de- mandant of this, who told him it was right, and requested him to keep the deed until it was called for. Abel, the son, was never present at any of these transactions, nor did it appear that he ever knew of the execution of the deed. About a year afterwards, Abel died, and, soon after he was buried, the demandant called upon the witness 1 Hawes v. Hawes, 177 111. 409 ; Anderson v. Anderson, 126 Ind. 62 ; Alex- ander V. do Kernel, 81 Ky. 345. accord. See Fisher v. Hall, 41 N. Y. 416. Compare Baker v. Hall, 214 111. 364. SECT. II ] MAYNARD V. MAYNARD 655 for the deed, wlilcli was given to him, he then saying that he sup- posed he had a right to do as he pleased with it; and then cut his name and seal from it. It was proved that Abel, the son, lived upon the farm with the demandant, his father, and carried it on wdth his labor, and supported his family upon it. It was also proved, by several witnesses, that the demandant, in conversation after the execution of the deed, considered the land as his son's property. The judge instructed the jury that there were no facts proved in the case which, in law, could amount to a delivery of the deed to Abel; so tbat the conveyance was not perfect, and the demandant must recover possession. A verdict was accordingly returned for the demandant, which the tenants moved might be set aside, and a new trial be granted. Per Curiam. It is very clear that there was no delivery of this deed, so as to give it the effect of passing the estate from the de- mandant to his son, as whose Avidow and heirs the tenants claim. The act of registering a deed does not amount to a delivery of it; there not appearing any assent on the part of the son, or even any knowledge that the deed had been executed in his favor. A de- livery of a deed duly executed and acknowledged, to the register of deeds, aided by a subsequent possession of the deed by the grantee, might be evidence of a delivery to him. But the facts in the case at bar, testified by the person who acted as the scrivener and magistrate, leave no doubt of the intention of the grantor ultimately to pass this land to his son, but to keep the control over it until he should be more determined upon the subject. He may have chosen to place the deed, perfect as it was, except as to delivery, in the hands of the witness, in lieu of a devise, to operate after his decease; for nothing Avas wanting to its complete effect but to direct the witness to deliver it to his son after his own de- cease. He probably chose to consider it as revocable at all times by himself, in case of any important change in his family or estate. Whatever may have been his views, however, he retained an author- ity over it; and having reclaimed and cancelled it, the tenants can claim no title under it. Whether a creditor of his son might not liave taken it in satisfac- tion of a debt, in consequence of the credit given by putting such an apparent title upon record, and especially as the son Avas in actual possession of the premises, need not noAv be determined. We are satisfied tliat tlie title never passed out of the demandant, and that he is therefore entitled to a recoveiy. Judgmeivi on the verdict.^ 1 Younge v. Guilbeau, 3 Wall. (U. S.) 636; Barnes v. Barnes, 161 Mass. 381; Hogadone v. Grange Mutual Fire Insurance Co., 133 Mich. 339; Mc- Mahan v. Hensley, 101 S. Iv (N. C.) 210. accord. Sec Rowleii v. Rowhi/. 197 S. W. (Mo.) i.52; Rohhin.^ v. Ra-<^coe, 120 N. C. 79; }fitchcl} v. Ri/an. 3 Ohio St. 377; King v. Antrim Lumber Co.. 172 Pac. (Okl.) 958. Compare Sellers v. Rike, 292 III. 468; Massachusetts. Gen. Laws (1921), c. 183. § 5; Jackson v. Phipps, 12 Johns. (N. Y.) 418; Smith v. South Roydton Bank, 32 Vt. 341. 650 THOMPSON V. LEACH [CHAP. X THOMPSON V. LEACH 3 Lev. 284; 2 Vent. 198. 1690. Ejectment upon the demise of Charles Leach, and on Not Guilty and a special verdict, the case was thus : Simon ^ Leach being tenant for life, remainder to his first son in tail,- remainder to Sir Simon Leach in tail. Simon Leach makes a deed of surrender to Sir Simon before the birth of any son of Simon, and afterwards had a son, viz. Charles the lessor of the plaintifp. Simon keeps the deed of surrender in his hands, and Sir Simon had no knowledge of it until five years after the said son's birth. But as soon ais he had notice of it, he accepted it^ and entered on the lands; after which Simon dies, and Charles the son brings the ejectment : and whether the contingent remainder was. destroyed by this surrender, was the question. And after divers arguments, Pollexfen^ Chief -Justice, Powell and Rokesby, Justices, held, that the estate did not pass by the surrender until the acceptance of it; and for this they relied much on the constant form of pleading surrenders, wherein always the precedents are not only to plead the surrender, but also with an acceptance, viz., that the surrenderee agreed thereto, except one or two in Rastal; and divers other authorities were cited in the case pro and con, and that then the surrender not taking effect, nor the estate for life merged before the birth of the son, he had a good title. 2. The said three judges held, that the acceptance afterwards should not so relate to the making of the deed, as to cause the estate to pass ab initio, and so by relation to make it a surrender before the son's birth, so as to destroy his estate; for that would be to make a re- lation work to the prejudice of a third person, and relations do ahvays make acts good only between the parties themselves, but not to prejudice strangers, as Co. 3 Rep., Butler and Baker's Case. But Justice Venteis to the contrary held, that the estate vested im- mediately by the making the deed of surrender ; but to be divested by the surrenderee's refusal to accept it afterwards, but that until such refusal the estate was in the surrenderee ; and divers cases were cited on that side also : and he also held, that if it did not vest at the first by the delivery of the deed of surrender, yet by the acceptance afterwards it should be by relation a surrender from the begin- ning, and so destroy the contingent remainder to Charles the son born afterwards; and this relation does no wrong to a third per- son, for Charles was not a person in esse when the surrender was first made. But by the opinion of the other three judgment was 1 Levinz calls him "Nicholas;" but the other reports show that his name was " Simon." 2 The other reports show that the remainder was to the first and other sons in tail. SECT. II] THOMPSON V. LEACH 657 given for the plaintiff, upon which error was brought in B. R. and in Hill. 3 W. & M. the judgment given in C. B. was affirmed by the whole court. But afterwards the defendant brought error thereof in the House of Peers; and in December, 1692, on hearing of the judges there, they all coritinuing in their former opinion (except Sir RoBEKT Atkins, Chief Baron, and then Speaker of the House of Peers), the judgment was reversed by the Lords in Parliament, the said Sir Robert Atkins and Mr. Justice Ventris concurring with them as before. Levinz, of counsel for the defendant. [The dissenting opinion of Ventris, J., in the Court of Common Pleas, which was afterwards adopted in the House of Lords, is thus given in his report of this case in 2 Vent. 198.] Upon this record the case is no more than thus; Simon Loach, tenant for life, remainder to his first son, remainder in tail to Sir Simon Leach. Simon Leach before the birth of that son by deed, sealed and delivered to the use of Sir Simon (but in his absence and without his notice) surrenders his estate to Sir Simon, and continues the possession until after the birth of his son; and then Sir Simon Leach agrees to the surrender, whether this surren- der shall be taken as a good and effectual surrender before the son born. There are two points which liave been spoken to in this case at the bar. First, whether by the sealing of the deed of surrender the estate immediately passed to Sir Simon Leach; for then the contingent remainder could not vest in the after-born son, there being no estate left in Simon Leach his father to support it? Secondly, whether after the assent of Sir Simon Leach, though it were given after the birth of the son, doth not so relate as to make it a surrender from the sealing of the deed, and thereby defeat the remainder which before such assent was vested in the son? I think these points include all that is material in the case, and I shall speak to the second point, because I would rid it out of the case. For as to that point I conceive, that if it be admitted, that the estate for life continued in Simon Leach till the assent of Sir Simon, that the remainder being vested in Charles the second son before such assent, there can be no relation that shall divest it. I do not go upon the general rule, that relations shall not do wrong to strangers. 'T is true, relations are fictions in law, which are always accom- panied with equity. But 't is as true, that there is sometimes loss and damage to third persons consequent upon them; but then 'tis what the law calls damnum absque injuria, wliich is a known and stated difference in the law, as my Brother. Pcmberton urged it. But I think there needs nothing of that to be considered in this point. 658 THOMPSON V. LEACH [CHAP. X But the reason whicli I go upon is, that the relation here, let it be never so strong, cannot hurt or disturb the remainder in Charles Leach in this case; for that the remainder is in him by a title ante- cedent and paramount to the deed of surrender, to which the assent of Sir Simon Leach relates, so that it plainly overreaches the relation. If an estate in remainder, or otherwise, ariseth to one upon a con- tingency or a power reserved upon a fine or feoffment to uses, when the estate is once raised or vested it relates to the fine or feoffment, as if it were immediately limited thereupon, 1 Co. 133, 156. So this remainder, when vested in Charles, he is in immediately by the will, and out of danger of his remainder being divested by any act done since, as the surrender is. I will put one case, I think full to this matter, and so dismiss this point. It cannot be denied, but that there is as strong a relation upon a disagreement to an estate, as upon an agreement, where the estate was conveyed without the notice of him that afterwards agrees or disagrees; if the husband discontinues the wife's estate, and then the discontinuee conveys the estate back to the wife in the absence of the husband, who (as soon as he knows of it) disagrees to the estate, this shall not take away the remitter which the law brought upon the first taking the estate from the discontinuee. And so is Lit. cap. Remitter, Co. 11 Inst. 356 b. The true reason is, because she is in of a title paramount to the conveyance to which the dis- agreement relates, though that indeed was the foundation of the remitter, which by the disagreement might seem to be avoided. This therefore I take to be a stronger case than that at the bar : so that if there were no surrender before the birth of Charles the son, there can be none after by any construction of law; for that would be in avoidance of an estate settled by a title antecedent to such surren- der, whereas relations are to avoid mesne acts; and I believe there can be no case put upon relations that go any further, and it would be against all reason if it should be otherwise. But as to the first point, I am of opinion, that upon the making of the deed of surrender, the freehold and estate of Simon Leach did immediately vest in Sir Simon, before he had notice, or gave any express consent to it; and so it was a surrender before Charles was born, and then the contingent remainder could never vest in him, there being no particular estate to support it. A surrender is a particular sort of conveyance that works by the common law. And it has been agreed, and I think I can make it plainly appear, that conveyances at the common law, do immediately (upon the execution of them on the grantor's part) divest the estate out of him, and put it in the party to whom such conveyance is made, though in his absence, or without his notice, till some disagree- ment to such estate appears. I speak of conveyances at the common SECT. Il] THOMPSON V. LEACH 659 << law; for I shall say nothing of conveyances* that work upon the Statutes of Uses, or of conveyances by custom, as surrenders of copy- holds, or the like, as being guided by the particular penning of Statutes, and by custom and usage, and matters altogether foreign to the case in question. In conveyances that are by the common law, sometimes a deed is sufficient (and in surrenders sometimes words without a deed) without further circumstance or ceremony; and sometimes a further act is requisite to give them effect, as livery of seisin, attornment, and sometimes entry of the party, as in case of exchanges; and as well in those conveyances that require a deed only, as those which re- quire some further act to perfect them, so soon as they are executed on the grantor's part, they immediately pass the estate. In case of a deed of feoffment to divers persons, and livery made to one feoffee in the absence of the rest, the estate vests in them all till dissent, 2 Leon. 23, Muttons Case. And so 223, an estate made to a feme covert by livery, vests in her before any agreement of the husband, Co. 1 Inst. 356 a. So of a grant of a reversion after attornment of the lessee, passeth the freehold by the deed, Co. 1 Inst. 49 a. Lit. sect. 66. In case of a lease, the lessee hath right immediately to have the tenements by force of the lease. So in the case of limitation of remainders and of devises (which though a conveyance introduced by the Statute, yet operates according to the common law), the freehold paeseth to the devisee before notice or assent. I do not cite authorities, which are plentiful enough in these matters, because they that have argued for the plaintiff have in a manner agreed, that in conveyances at the common law, gen- erally the estate passeth to the party, till he divests it by some disagreement. But 't is objected, that in case of surrenders, an express assent of the surrenderee is a circumstance requisite; as attornment to a grant of a reversion, livery to a feoffment, or execution by entry, in case of an exchange. To which I answer, that an assent is not only a circumstance, but 'tis essential to all conveyances; for they are contracts, actus contra actum, which necessarily suppose the assent of all parties : but this is not at all to be compared with such collateral acts or circumstances, that by the positive law are made the effectual parts of a conveyance; as attornment, livery, or the like; for the assent of the party that takes, is implied in all conveyances, and this is by intendment of laAV, which is as strong as the expression of the party, till the contrary appears; stahit prn'sumptio donee prohetur in contrarium. But to make this thing clear, my Lord Coke in his first Institutes, fol. 50, where he gives instances of conveyances that work without livery, or further circumstance or ceremony, puts the cases of lease and release, confirmation, devise and surrenders, amongst the rest; 660 THOMPSON V. LEACH [CHAP. X whereas if an express assent of the surrenderee were a circumstance to make it effectual, sure lie would have mentioned it, and not mar- shalled it with such conveyances as I have shown before, need no such assent, nor anything further than a deed. The case of exchanges has been put as an instance of a conveyance at law, that doth not work immediately; but that can't be compared to the case in question, but stands upon its particular reasons; for there must be a mutual express consent, because in exchanges there must be a reciprocal grant, as appears by Littleton. Having, I hope, made out (and much more might have been added, but that I find it has been agreed) that conveyances work immediately upon the execution of them on the part of him that makes them, I will now endeavor to show the reasons, why they do so immediately vest the estate in the party without any express consent; and to show that these reasons do hold as strongly in case of surrenders, as of any other conveyances at law; and then consider the incon- veniences and ill consequences that have been objected, would ensue, if surrenders should operate without an express consent ; and to show, that the same are to be objected as to all other conveyances, and that very odd consequences and inconveniences would follow, if surrenders should be ineffectual till an express consent of the sur- renderee ; and then shall endeavor to answer the arguments that have been made on the other side, from the putting of cases of surrenders in the books, which are generally mentioned, to be with mutual assent, and from the manner of pleading of surrenders. The reasons why conveyances do divest the estate out of the grantor, before any express assent or perhaps notice of the grantee, I conceive to be these three: — First, because there is a strong intendment of law, that for a man to take an estate it is for his benefit, and no man can be supposed to be unwilling to that which is for his advantage. 1 Rep. 44. Where an act is done for a man's benefit an agreement is implied, till there be a disagreement. This does not hold only in convey- ances, but in the gift of goods, 3 Co. 26. A grant of goods vests the property in the grantee before notice. So of things in action; a bond is sealed and delivered to a man's use, who dies before notice, his executors may bring an action. Dyer, 167. An estate made to a feme covert, vests in her immediately, till the husband disagrees. So is my Lord Hobart, 204, in Swain and Eolmans Case. ISTow is there not the same presumption and appearance of benefit to him in reversion in case of a surrender? Is it not a palpable advantage to him to determine the particular estate, and to reduce his estate into possession? and therefore, why should not his assent be implied, as well as in other conveyances? Secondly, a second reason is, because it would seem incongruous and absurd, that when a conveyance is completely executed on the grantor's part, yet notwithstanding the estate should continue in him. The words of my Lord Coke (1 Inst. 217 a) are, that it SECT, II] THOMPSON V. LEACH 661 cannot stand with any reason, "that a freehold should remain in a man against his own livery when there is a person able to take it." There needs only a capacity to take, his will to take is intended. Why should it not seem as unreasonable, that the estate should re- main in Simon Leach, against his own deed of surrender? For in case of a surrender, a deed, and sometimes words ^\'ithout a deed, are as eifectual as a livery in case of a feoffment. Thirdly, the third and principal reason, as I take it, why the law will not suffer the operation of a conveyance to be in suspense, and to expect the agreement of the party to whom 't was made, is to prevent the uncertainty of the freehold. This I take to be the great reason why a freehold cannot be granted in fufuro, because that it would be very hard and inconvenient that a man should be driven to bring his prcecipe or real action first against the grantor, and after he had proceeded in it a considerable time, it should abate by the transferring the freehold to a stranger, by reason of his agree- ment to some conveyance made before the writ brought; for other- wise there is nothing in the nature of the thing against conveying a freehold in future; for a rent de novo may be so granted; because that being newly created, there can be no precedent right to bring any real action for it. Palmer, 29, 30. Now in this case, suppose a prcecipc had been brought against Simon Leach, this should have proceeded, and he could not have pleaded in abatement till Sir Simon Leach had assented; and after a long progress in the suit he might have pleaded, that Sir Simon Leach assented jmis darrein continuance, and defeated all. So that the same inconvenience, as to the bringing of real actions, holds in surrenders, as in other conveyances. And to show that it is not a slight matter, but what the law much considers, and is very careful to have the freehold fixed, and will never suffer it to be in abeyance, or under such uncertainty, as a stranger that demands right should not know where to fix his action. A multitude of cases might be cited; but I Avill cite only a case put 1 H. 6, 2 a, because it seems something of a singular nature, lord and villain, mortgagor and mortgagee, may be both made tenants. But it will be said here, that if a prcecipe had been brought against Sir Simon Leach, might not he have pleaded his disagreement, and so abated the writ by non-tenure? 'T is true; but that inconvenience had been no more than in all other cases, a plea of non-tenure, and it must have abated immedi- ately; for he could not have abated it by any dissent after he had answered to the writ. Whereas I have shown it in the other case, it may be after a long progress in the suit. Again, it's very improbable that he should dissent; whereas on the other side, an assent is the likeliest thing in the world; so the mischief to the demandant is not near so great, nor the hundredth part so probable. 662 THOMPSON V. LEACH [CHAP. X Now I come to consider those iiiconvciiiences that have been urged that woukl ensue, if a surrender should work immediately. It has been said, that a tenant for life might make such deed of surrender, and continue in possession, and suffer a recovery; and this might destroy a great many recoveries, and overthrow marriage settlements, and defeat charges and securities upon his estate after such deed of surrender. These, and a great many more such like mischiefs, may be instanced in surrenders ; but they hold no less in any other conveyance, whereby a man may (as has been showed before) divest himself of the estate, and yet continue the possession; and in this case the assent of the surrenderee, though he doth not enter, would (as it is agreed of all hands) vest the estate in him, Hutton 95, Br. tit. Surrender 50, though he cannot have trespass before entry, and that assent might be kept as private, and let in all the mischiefs before mentioned as if no such assent were necessary. And this I think sufficient to answer to the inconveniences objected on that side. N'ow let us see what inconveniences and odd consequences Avould follow, in case a surrender could not operate till the express assent of the surrenderee, then no surrender could be to an infant at least, when under the age of discretion; for if it be a necessary circum- stance, it cannot be dispensed with no more than livery or attornment. So though an infant of a year old is capable to take an estate, because for his benefit he could not take a particular estate, upon which he had a reversion immediately expectant, because it must inure by surrender. If there be joint tenants in reversion, a sur- render to one of them inures to both, 1 Inst. 192, 214 a, so there, as to one moiety, it operates without assent or notice. Suppose tenant for life should make livery upon a grant of his estate to him in reversion and two others, and the livery is made to the other two in the absence, and without the notice of him in reversion, should the livery not work immediately for a third part of the estate? And if it doth, it must inure as a surrender for a third part. So is Bro. tit. Surrender, and 3 Co. 76. If tenant for life should by lease and release convey the lands held by him for life, together with other lands to him in reversion who knows nothing of the sealing of the deed ; should this pass the other lands presently, and the lands held for life not till after an express assent, because as to those lands it must work as a surrender? Plainly an express assent is not necessary. For if the grantee enters, this is sufficient. I come in the last place to answer those arguments that have been made from the manner of putting the case of surrenders in the book, and the form of pleading surrenders, Co. 1 Inst. 337 b. SECT. Il] THOMPSON V. LEACH 663 First, a surrender is u yielding up of the estate, wliicli drowns by mutual agreement between them. Tenant for life, by agreement of him in reversion, surrenders to him; he hath a freehold before he enters. And so Perkins, in putting the case of a surrender, men- tions an agreement; and divers other books have been cited to the same purpose. To all which I answer : jSTo doubt but an agreement is necessary. But the question is, whether an agreement is not intended where a deed of surrender is made in the absence of him in the reversion; whether the law shall not suppose an assent, till a disagreement appears? Indeed, if he were present, he must agree or disagree inmicdiatcly ; and so 't is in all other conveyances. The cases put in Perkins, sect. 607, 608, 609, are all of surrenders made to the lessor in person; for thus he puts them: The lessee comes to the lessor, and the lessee saith to the lessor, I surrender, saith he, if the lessor doth not agree, 't is void; Car il ne poit surrender a luy maugre son dents. And that is certainly so in surrenders, and all other conveyances; for a man cannot have an estate put into him in spite of his teeth. But I cannot find any of the books cited that come to this point, that where a deed of surrender is executed without the notice of him in reversion, that it shall pass nothing till he consents; so that it cannot be said, that there is any express authority in the case. Now, as to the form of pleading of a surrender it has been ob- jected, that a surrender is always pleaded with acceptance; and many cases have been cited of such pleadings, Bastal's Entries 176, 177, Fitzh. tit. Barre 262, which are cases in actions of debt for rent, and the defendant in bar pleads, that he surrendered before the rent grew due, and shows, that the plaintiff accepted the surrender. So in waste brought, a surrender pleaded with the agreement of the plaintiff. These and the like cases have been very materially, and 1 think fully answered at the bar by my Brother Pemberton; that those actions being in disaffirmance of the surrender, and implying a dis- agreement, the defendant had no way to bar or avoid snch disagree- ment, but by showing an express agreement before. The case of Peto and Pemberton in the 3 Cro. 101, that has been so often cited, is of the same sort : in a replevin the avowry was for a rent-charge; in bar of which 't is pleaded, that the plaintiff demised the land out of which the rent issued, to the avowant. The avowant replies, that he surrendered dimissionem proedict, to which the plaintiff agreed. This is the same with pleading in bar to an action of debt for rent : but when the action is in pursuance of the surrender, then it is not pleaded. So is East. Entries 1:16. The lessee l)rnught an action of coviMiant against the lessor, for entering upon iiini, and ousting ut him. The 664 THOMPSON V. LEACH [CHAP. X defendant pleads a surrender in bar, and that without any agreement or acceptance. In Fitzherbert, tit. Debt 149, where the ease is in an action of debt for rent; the defendant pleaded in bar, that he surrendered, by force of which the plaintiff became seised ; there is no mention of pleading any agreement, notwithstanding that the action was in disaffirmance of the surrender. Therefore, as to the argument which has been drawn against the form of pleading, I say, that if an agreement be necessary to be pleaded : then, I say, First, that 't is answered by an implied assent, as well as an express assent. I would put the case; suppose a lessee for life should make a lease for years, reserving rent; and in debt for the rent the lessee should plead, that the plaintiff before the rent grew due surrendered to him in reversion, and he accepted it, and issue is upon the accept- ance; and at the trial it is proved, that the plaintiff had executed a deed of surrender (as in this case) to him in reversion in his ab- sence; would not this turn the proof upon the plaintiff, that he in reversion disagreed to this surrender? For surely his agreement is prima facie presumed, and then the rule is, stabit prcesumptio donee probetitr in contrarium. Again, I say it appears by the cases cited that it is not always pleaded, and when pleaded 't is upon a special reason, as I have shown before, i. e., to conclude the party from disagreeing; and it would be very hard to prove in reason, that an agreement (admitting an express assent to be necessary) must be pleaded; for if it were a necessary circumstance to the conveyance, why then 't is implied in pleading sursum reddidit; for it cannot be a surrender without it. In pleading of a feoffment it is enough to say feoffavit, for that implies livery; for it cannot be a feoffment without it. N"ow why should not sursum reddidit imply all necessary requisites, as well as feoffavit? and therefore I do not see that any great argu- ment can be drawn from the pleading. For, 1. It is not always to be pleaded. 2. It cannot be made out to be necessary so to plead it; for if assent be a necessary requisite, then 't is implied by saying sursum reddidit, as livery is in feoffavit: and then to add the words of express consent is as superfluous, as to show livery after saying feoffavit. And again, if it were always necessary, it is sufficiently answered by an assent intended in law ; for presumptions of law stand as strong till the contrary appears, as an express declaration of the party.^ 1 Penvev v. Tilton, 18 N. H. 151. accord. In Standing v. Boimng, L. R. 31 Ch. D. 282, Halsbltry, Lord Chancellor. said, p. 286: "If the matter were to be discussed now for the first time, I think it might well be doubted whether the assent of the donee was not a preliminary to the actual passing of the property. You certainly cannot SECT. Il] THOMPSON V. LEACH 665 make a man accept as a gift that which he does not desire to possess. It vests only subject to repudiation. That is a matter which was settled by authorities which were not called to our attention in the course of the argu- ment. In Butler and Baker's Case, 3 Rep. 26 b, it is said: 'The same law of a gift of goods and chattels, if the deed be delivered to the use of the donee, the goods and chattels are in the donee presently, before notice or agreement; but the donee may make refusal in pais, and by that the pro- erty and interest will be devested.' That case was decided in the year 1590. Exactly 100 years afterwards, in Thompson v. Leach, 2 Vent. 198, the ques- tion again arose, and was decided by the Queen's Bench against the opinion of Ventri^, J. But that opinion so given was reversed afterwards by the House of Lords on a wTit of en-or, 2 Vent. 208, and that was a ver>' strong case indeed, because the effect of the surrender was to bar a contingent re- mainder, which would otherwise have become vested by the birth of the son, which happened before the assent of the surrenderee. In Siggcrs v. Evans, 1855, 5 E. & B. 367, the old authorities are reviewed, and Lord Campbell formulated the principle which I have indicated above." Cotton, L. J., said p. 288: " Now, I take the rule of law to be that where there is a transfer of property to a person, even although it carries with it some obligations which may be onej'ous, it vests in him at once before he knows of the transfer, subject to his right when informed of it to say. if he pleases, ' I will not take it.' When informed of it he may repudiate it, but it vests in him until he so repudiates it. Siggcrs v. Evans, 5 E. & B. 367. referred to by the Lord Chancellor, is a late case to that effect, in which the earlier authorities are reviewed, and one very remarkable case, Smith v. Whrclcr. 1 Vent. 128, is quoted at p. 382, and also at greater length in Small v. Mar- wood, 9 B. & C. 300, 306, where the right of the Crown was defeated by an assignment made before that right accnied, but not communicated to the assignee until after that right had accrued. It was held that although the assignee knew nothing of the assignment, it became effectual at once, so as to defeat the title of the CrowTi, which accrued before the knowledge was communicated to the assignee, and therefore of course before acceptance by the assignee." See Mallott v. Wilson, L. R. [19031, 2 Ch. 494. Contra, Bank of Healdsburg v. Bailache, 65 Cal. 327; Moore v. Flyiin. 135 111. 74; Woodbury v. Fi.^hcr, 20 Ind. 387; Daij v. Griffith, 15 Iowa 104; Simp- son V. Yocum, 172 Ky. 449; Meigs v. Dexter, 172 Mass. 217; Couch v. Addy, 35 Okl. 355; Tuttle v. Turner, 28 Tex. 759; Welch v. Sackett, 12 Wis. 243. But see Merril.l.s v. Swift, 18 Conn. 257; Tibbals v. Jacobs, 31 Conn. 428; Jones V. Swayze, 42 N. J. L. 279; Wilt vi. Franklin, 1 Binn. (Pa.) 502; Larkey v. Lari.sey, 93 S. C. 450; 2 Tiffany. Real Prop., 2d ed., § 463. Compare Midkifj v. Colton, 242 F. R. 373; Hibberd v. Smith, 67 Cal. 547; Rittmaster v. Brisbane, 19 Colo. 371; Sellers v. Rike, 292 111. 468; Greene v. Conant, 151 Mass. 223; Blackwcll v. Blackwell, 196 Mass. 186; Derry Bank v. Webster, 44 N. H. 264; Siggers v. Evans, 5 E. purpose of carry- ing out this modified decree.^ 1 Compare Mcsick v. Sunderland, 6 Cal. 297; Salisbury v. La Fittc, 57 Colo. 358; Walker v. Walker, 198 Pac. (Colo.) 432; Richards v. Potter, 124 674 GRAVES V. GRAVES [CHAP. XI GRAVES V. GRAVES 6 Gray (Mass.) 391. 1856. Writ of entry to recover a tract of land in Whately and Deerfield. Plea, nid disseisin. At the trial in this court, both parties claimed title under Franklin Graves. It appeared that on the 25'th of January 1854 Franklin Graves conveyed the premises to Josiah Allis by a warranty deed, and Allis at the same time executed to Franklin Graves a bond of defeasance for the reconveyance of the land upon payment of the sum of $1,600 in three years and interest annually, and for the possession of the land during the three years by the obligee, he paying the interest, taxes, and insurance. The tenant gave in evidence an assignment, under seal, from Franklin Graves to the tenant, indorsed on said bond, and dated March 18th 1854, assigning "unto the said Erastus L. Graves, his executors, administrators, and assigns, the within written bond or obligation, and the sum of sixteen hundred dollars mentioned in the condition thereof, together with all interest due and to grow due for the same, and all my right, title, interest, claim, and demand whatsoever in and to the same, and all the right, title, and interest which the said bond gives me in said sum of money, or the land to which it relates." This assignment was not acknowledged before any magistrate, but was recorded in the registry of deeds. The demandant claimed title under a subsequent attachment and levy of execution upon the land as the property of Franklin Graves ; and contended that the assignment was ineffectual to convey any title in the land to the tenant, for the following reasons : 1st. Because it was uncertain in its terms, and therefore void; inasmuch as it was, in terms, not a mere transfer of the bond, but also a transfer of the sum of $1,600 mentioned therein, which was not a sum due to the- obligee, but the mortgage debt which he was to pay to the obligor. 2d. Because, so far as its purpose could be ascertained, it was a mere assignment of the bond, as a contract or chose in action, and not of any interest in the land; the assignment not running to the assignee's heirs, and not being acknowledged, nor treated by the parties as a deed; and not purporting to convey the title which the assignor originally had, but only " all the right, title, and interest which the said bond gives me in the land to which it relates," which was no interest whatever; that, if the bond had been originally made S. W. (Ky.) 850; Putnam, v. Story, 132 Mass. 205; Sjohhm v. Mark, 103 Minn. 193; Dedeaux v. Cuevaff, 107 Miss. 7; Wootton v. Dynes, 83 N. J. Eq. 163; Bernard v. Benson, 58 Wash. 191; Camp Mfg. Co. v. Carpenter, 112 Va. 79; Scott, Cas. on Trusts, p. 623. SECT. Il] FROST V. BEEKMAN 675 to a third person, it would have given him no interest in the land, and an assignment of it to him had no greater effect. 3d. Because, as a deed, it was ineffectual, for want of acknowledg- ment, and of any legal record. Dewey, J., being of opinion that, for some or all of these reasons, the assignment was iiiBufficient to defeat the demandant's title under his attachment and levy of execution, took the case from the jury, and reserved the question for the full court, with an agreement that if the ruling was right, the tenant should be defaulted; if not, the case should stand for trial. Shaw, C. J. It is very clear that the warranty deed from Frank- lin Graves to Allis, and the simultaneous bond to reconvey upon payment of a sum of money, constituted a mortgage to Allis, and left an equity of redemption in Franklin Graves, The court are of opinion that the effect of the assignment of the instrument of defeasance by Franklin Graves to Erastus L. Graves, with all his right, title, and interest in the land therein described, constituted a conveyance of the equity of redemption. But the instrument of defeasance, not being acknowledged, was im- providently admitted to registration, and the record does not operate as constructive notice of the execution of the assignment of the equity of redemption, as against an attaching creditor of the equity; and therefore the title of the attaching creditor, tliough subsequent in time, takes precedence of the assignment. We think however that, under the circumstances, it is proper that the case should go to a new trial, to enable the defendant to prove, if he can, actual iiotice to the plaintiff of the prior assignment of the equity, when he made his attachment.^ New trial ordered. FROST AND Others v. BEEKMAN" 1 Johns. Ch. (N. Y.) 288. 1814. The Chancellor [Kent^]. . . . Another and a more interest- ing question, is respecting the extent and effect of the registry of the defendant's mortgage, as notice to purchasers. It was a mortgage 1 See HarriFt v. Reed, 21 Idaho 364; Blond v. Blood. 23 Pick. (Mass.) SO, 84; Tinnin v. Broum., 78 Mi.ss. 378; Heintz v. Moore, 246 Mo. 226; MBce v. O'ConncU, 16 N. M. 469; hulinn Land Co. v. Scott, 59 Okla. 240; Ihistcr V. Fortncr, 2 Bin. (Pa.) 40; PhilUsi v. r7ro.s,«?, 32 S. D. 438; Dean v. Gihs^on, 48 S. W. (Tpx. Civ. App.) 57; South Pcnn. Oil Co. v. Blue Creek Co., 77 W. Va. 682; Ihric; v. Ihrig, 78 W. Va. 360. Compare Moore v. Ollson, 105 Ark. 241; Carter v. Champion, 8 Conn. 549; Nordman v. Rau, 86 Kan. 19, 38 L. R. A. n. s. 400 note; Cain v. Graii, 146 Ky. 402; Amnunnan v. Linton, 279 Mo. 439; People v. Donegan, 226 N. Y. 84; B/w,s v. Tidrich, 25 S. D. 533, Ann. Ca.s. 1912 C. 675 note;' Hitt v. Caneu Coal Co., 124 Tonn. 334; Ma.ss.. Con. Laws (1921), C. 183, §§ 29-42. - Part only of the opinion i.s here given. 676 FROST V. BEEKMAN [CHAP. XI for 3,000 dollars, and, by mistake, the registry was only for 300 dollars. This mistake is the whole cause of the controversy. The Mortgage Act of the sess. 24 ch. 156, declared, among other things, that the registry of a mortgage should contain, not, indeed, the mortgage at large, but the essential parts of the mortgage, and among other specified parts, " the mortgage money, and the time, or times, when payable."' To this register all persons whomsoever, at proper seasons, are at liberty to have recourse; and the Act declared that mortgages were to have preference, as to each other, according to the times of registry, and that " no mortgage should defeat or prejudice the title of any bona fide purchaser, unless the same should have been duly registered, as aforesaid." This registry is notice of the mortgage to all subsequent purchasers and mortgagees ; and 'so the Act was construed, and the law declared, by the Court of Errors, in the case of Jolins.on v. Stagg, 2 Johns. Rep. 510. The English authorities on this point do not, therefore, govern the case. The lan- guage of those authorities, undoubtedly, is, that the registry is not notice, though that doctrine is much questioned, and the point seems still to be floating and unsettled. Bedford v. Backhouse, 3 Eq. Cas. Abr. 615, pi. 12; Wrightson \. Hudson, lb. 609, pi. 7; Morecoch v. Dickins, Amb. 678; Latouche v. Dunsany, 1 Schoale & Lefroy, 157; Sugden (3d Lond. ed.), 524-527; Com. Dig. tit. 32, Deed, ch. 21, s. 11. The only question with us is, when, and to what extent, is the registry notice? Is it notice of a mortgage unduly registered? or is it notice beyond the contents of the registry? The true construction of the Act appears to be, that the registry is notice of the contents of it, and no more, and that the purchaser is not to be charged wnth notice of the contents of the mortgage, any further than they may be contained in the registry. The purchaser IS not bound to attend to the correctness of the registry. It is the business of the mortgagee, and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not be- tween him and the bona fide purchaser. The Act, in providing that all persons might have recourse to the registiy, intended that as the correct and sufficient source of information; and it would be a doc- trine productive of immense mischief to oblige the purchaser to look, at his peril, to the contents of every mortgage, and to be bound by them, when different from the contents as declared in the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase, without hunting out and inspect- ing the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intention, as it certainly is not the sound policy, of the Statute; nor is it repugnant to the doctrine con- tained in the books, that notice to a purchaser, of the existence of a lease, is notice of its contents. Taylor v. Stibbert, 2 Yes. jun. 437; Hiern v. Mill. 13 Yes. jun. 118-120; Tlall v. Smith, 14 Yes. jun. 426. In that case, the party is put upon inquiry, and he must make SECT. II ] GEORGE AND EDWARD CURTIS V. LYMAN 677 it, or abide the consequences. The decision, in Jackson v. NeeJy, 10 Johns. Eep, 374, was made upon the same principle; and it was held that the recital in a deed of a letter of attorney, by which it was made, was notice to the purchaser of the existence of such a power. But here the Statute did not mean to put the party upon further in- quiry. The registry was intended to contain, within itself, all the knowledge of the mortgage requisite for the purchaser's safety. The question does not necessarily arise, in this case, how far the unauthorized registry of a mortgage, as one made, for instance, without any previous legal proof, or acknowledgment, would charge a purchaser with notice of the mortgage. The better opinion, in the books, seems to be, that it would not be notice, and that equity will not interfere in favor of an encumbrancer, when he has not seen that his mortgage was duly registered. Sugden's Law of Vend. 527 ; 1 Schoale & Lefroy, 157; Heister v. Fortner, 2 Binney, 40. But here everything was done that could have been previously required of the mortgagee. The mortgage was duly presented for registry, and he was not bound to inspect and correct the record. This was the ex- clusive business and duty of the clerk, and there is no reason why the registry should not operate as notice, to the amount of the sum mentioned therein ; and, indeed, so far the obligation of the registry is admitted by the bill. I conclude, therefore, that the registry was notice to purchasers, to the amount, and only to the amount, of the sum specified in the registry.^ GEORGE AND EDWARD CURTIS v. LYMAX axd Others 24 Vt. 338. 1852. The facts sufficiently appear in the opinion of the court, which was delivered by Hall, J. This is an appeal from chancery. The ])ill is for the foreclosure of a mortgage in conunon form. The com])lainants are the mortgagees; one of the dcfenchuits, Edgerton, being the mort- 1 See s. c. on appeal, 18 Johns. 544 (1820). See Sinclair v. Gunzenhauscr, 179 Ind. 78; Farahcc v. }fcKrrrihan. 172 Pa. 234. But compare Minis v. Minis, 35 Ala. 23; and soo Cairthorn v. Steams, 60 Fla. 313; Latourell v. Hobart, 135 Minn. 109. " This question could never arise between a mortgapee and a subsequent judgment-creditor, for tho plain reason, that such a creditor is not a pur- chaser, nor entitled to the privileges of that position. " So far as the Statute goes, in giving him a preference over mortgages not perfected by a deliver>' to the recorder, his right,s are absolute, but for everything else, he is remitted to general principles; and upon general prin- ciples, it is ver>' clear that he acquires a lien only upon the interests of his debtor, and is bound to yield to every claim that could be successfully asserted against him." Toiuslcy v. Touslcy, 5 Ohio St. 78, 87 (1855). 678 GEORGE AND EDWARD CURTIS V. LYMAN [CHAP. XI gagor, and anotlicr defendant, Lyman, being a purchaser under Edgerton. The facts found and about which there is little or no controversy, are these : — Edgerton being indebted to the plaintiffs by note in the sum of $2000, mortgaged to them certain lands, which mortgage was tran- scribed upon the book of records of the town on the 11th of June, 1835, and duly certified as recorded; but no reference to the record was entered upon the alphabet. Subsequently, the defendant Lyman, without actual notice of the mortgage, and before the record of it was alphabetted, for the consideration of $5000, purchased the same land of the mortgagor, his deed being recorded Feb. 7, 1839. Both the mortgage and deed were received for record and certified as recorded by Edgerton, the mortgagor, who from March, 1835, to March, 1841, was the town clerk, and the reference to the mortgage was first entered on the index by the subsequent town clerk in August or Sep- tember, 1844. There is no evidence that the mortgagees had any knowledge of the neglect of the town clerk to enter their mortgage on the alphabet, and they must be taken to be ignorant of it. No other objection is made to the record, but the want of an index to it, and it is to be treated as having been in all other respects regular and sufficient. The question is, whether the neglect of the clerk to index the mort- gage, shall render the record of it invalid, so as to postpone the title of the mortgagees to that of the subsequent purchase. The determination of this question must depend upon the construc- tion of the Statutes of 1797 in relation to the recording of convey- ances, which Statutes were in force w^hen both deeds were lodged in the town clerk's office. The 5th section of the Act for Regulating Conveyances of Real Estate, specifies the several requisites of such conveyances. It de- clares " that all deeds or other conveyances of any lands, tenements or hereditaments, lying in this State, signed and sealed by the party granting the same, having good and lawful authority thereunto and signed by two or more witnesses, and acknowledged by such grantor or grantors before a justice of the peace, and recorded, at length, in the clerVs office of the town, in which such lands, tenements or hereditaments tie, shall be valid to pass the same, without any other act or ceremony in law whatever." If the language of this Statute were to be taken in its ordinary sense and serve to control our decision, there would seem to be but little doubt of its effect. There would in regard to the mortgage appear to have been a full and literal compliance with the words of the Statute. The mortgage had been transcrihed at length in the town clerk's office, and by the proper officer, and duly certified as recorded; and that is what is commonly understood as constituting a record of it. SECT. II] GEORGE AND EDWARD CURTIS V. LYMAN 679 It is, liowevor, said, that although the ordinary signification of the word ^' recorded " may be satisfied by what was done in this case, yet, that the Act regulating town meetings and the choice and duty of town officers, is to be construed as providing an additional requi- site to the record of conveyance — in other words, as in effect de- claring that a deed shall not be considered as recorded, until an index to it is entered upon the alphabet. No such language is, however, found in that Act, nor do we think any intention to engraft such additional requisite upon a deed can be fairly implied from the language used. The objeot of the Act is to point out the duty of the clerk, not only in the making of a proper record of conveyances, but also in furnishing facilities for their discovery, examination and use by all persons interested in them. And to secure the due performance of these duties the clerk is made liable to the party injured for the neglect of them, and to the security of the party injured is superadded, by a subsequent Statute, the responsibility of the town. The index or alphabet, which, it is the duty of the clerk to have annexed to his book, seems to be one of the facilities to be used in making search for the record, not a part of the record itself. It is his duty to have an index, and to enter upon it a proper reference to every record of a convey- ance, and for any neglect to do so, he and the town are liable for the damages any person may suffer by it. But it is not certain that any one will be injured by the neglect, and therefore the record itself should not be void. The clerk may know the place of the record and m^ay point it out to all who may wish to examine it. A pur- chaser may take his deed, relying alone upon the representations or covenants of his grantor, without desiring to examine the records. An index, or the want of it, would seem to be of no ini])()i'taiice to him. So if without making any search or causing any to be made, a purchaser should rely solely on the representations of the clerk, that the title was clear, and those representations should be know- ingly false, it is perhaps questionable whether he could be said to be injured by the want of an index. That would only seem to become important when an actual search of the records was desired to be made. The legitimate ground of com]>laiiit in such case would prob- ably be the fraudulent representations of the clerk. There are many practical difficulties in the way of making an in- dex to the record an essential requisite to the validity of the title. The Statute provides for an " index or alphabet." Are the two words used synonymously? Or have they here, as they often have, differ- ent meanings? Is it indispensable that the index should be in alpha- betical order? If so, shall the name of the grantor or the grantee be alphabetted? Or shall there be two indexes, one of each? Must the Christian name be written at length, or will the initials be suffi- cient? It is obvious, that if an index is held to be an essential part of the record, the way will at once be opened for a serious and em- 680 GEORGE AND EDWARD CURTIS V. LYMAN [CHAP, XI barrassing course of litigation in settling by judicial construction, what shall constitute a sufficient index, and what departures from a prescribed form shall render the record invalid. And all this, per- haps, when there has been no real injury to any one in consequence of a defective index. But if from the want of an index, or a proper entry upon it, the record is to be inoperative, shall it be held absolutely void? If the reference to it upon the index be not made the instant the record is completed, is the record a mere nullity? Or may the record be restored and made operative by a subsequent entry upon the index? If so, when does the record take effect? If from the entry on the index, how is the true time to be shown? Shall the clerk certify upon the record the time of the entry? That has never been done. The true time the record takes effect must then in all cases be left open to be proved by parol! In this case it appears by the evidence of the town clerk, that the plaintiff's mortgage was first alphabetted some time in August or September, 1844. This evidence is quite too loose and uncertain, from which to determine when a record is to become operative, as all parol evidence necessarily must be. It is obvious, that if an entry of a deed upon the index is held to be essential to the validity of the record, that it must necessarily lead to inextricable confusion and uncertainty in regard to the priority of conveyances. Indeed, the difficulties in the way of a decision to that effect, appear to us to be insurmount- able. On the other hand, we do not perceive but that the object of the Statute's providing for the recording of deeds will be fully an- swered by leaving anybody, actually sustaining an injury from the want of an index, or by a defective one, to his Statute remedy against the clerk and the towns. The case of Sawyer v. Adam^, 8 Vt. R..172, has been relied upon by the defendants' counsel, as having an important bearing upon the question in this. But our decision does not conflict with the law of that case. The facts in that case were peculiar. From them, the court found that there had been in effect no record of the deed upon the book of records. Chief Justice Williams, in delivering the opinion of the majority of the court, puts the case upon that ground.. He says, " that recording means the copying the instrviment to be recor(^ed into the public records of the town, in a book kept for that purpose, by or under the superintendence of the officer appointed therefor." This, the court held, had not in that case been done. But it had clearly been done in this case. The deed was copied by the town clei'k into the proper book, in the proper place, and duly certified as recorded, which would doubtless have been held by the court at that time, to have been sufficient. "We are all agreed that the proper office of the index is, what its name imports, to point to the record, but that it constitutes no part of the record; and we must consequently hold, that the plaintiff's SECT. II ] BARNEY V. MCCARTY 681 mortgage became an encumbrance upon the land from the time it was transcribed upon the record, and that the defendant Lyman took his title subject to it. The result is, that the decree of the Court of Chancery is to be affirmed, with directions to that court to fix upon a time for redemp- tion and to carry this decree into effect.^ BARNEY V. McCARTY et Al. 15 Iowa 510. 1864. This is an action brought to foreclose a mortgage upon lot 12, block 29, City of Keokuk, executed by Jonathan McCarty, to Marsh, Lee, & Delavan, for balance of purchase money, and which has now become the property of petitioner. The mortgage was dated 23d of October, 1847, duly acknowledged 25th of October, 1847, filed in the recorder's office of Lee County for record on the 17th day of December, 1847, and was recorded at large on the 7th day of January, 1848, in book 2, page 186, being in its proper order and place in said records; and on the original instrument is indorsed a memorandum of the date of filing, date and book and page of the record, which is signed by the recorder, all in the manner required by law. All this is admitted ; but it a})pears no index to the said record was made until after this suit was com- menced, which was in January, 1859. In the mean time said Mc- Carty had sold said lot, and the several defendants have become owners of parts thereof, who now claim to be innocent purchasers for value, without notice. In an amended petition, all defendants are charged with having personal notice, but the proof taken fails, it is admitted, to bring this home to any except Wm. and K. L. Knd- dick and Guy Wells. The District Court rendered a personal judgment against McCarty, the mortgagor, but refused to decree said lot or any part thereof to be sold to pay said mortgaged indebtedness. From this the plaintiff appeals, and holds that the court should have ordered said lots to be sold to pay the purchase-money due him. Dillon, J. I. The first ground upon which the appellant seeks to reverse the decree below is, that the defendants, Wm. and R. L. Ruddick and Guy Wells, had actual notice of the mortgage in suit at the time when they respectivi'ly purchased tlic ])ortions of the lot now owned by them. This question cannot for several reasons be examined in this court. By the Revision (§ 3000) mortgages are to be foreclosed as in cases of ordinary proceedings; and by section 2999 the court on appeal 1 Accord, Chatham v. Bradford, 50 Ga. 327; Bishop v. Schneider, 46 Mo. 472; Mutual Life Im. Co. v. Dakc, 87 N. Y. 257; Armstrong v. Aiu^tin, 45 S. C. 69 682 BARNEY V. MCCARTY [CHAP. XI "shall try only the legal errors" [of the cause] "duly presented, as in a case of ordinary proceedings, including the sufficiency of the facts stated on the record as the basis of the judgment to warrant the same." As to Guy Wells, the record does not show that there w^as any finding of the facts, either by a jury or by the court, as required by the last cited section of the Revision. As to the Messrs. Ruddick an issue was made to a jury, who found that they had no notice inde- pendent of the record of the mortgage in suit at the time when the deed of trust under which they claim was executed. No exception was taken to this finding of the jury and no motion was made to set the same aside as being against the weight of evidence or for any other cause. There is, therefore, no " legal error duly presented " to the appellate court for its review so far as relates to the question of actual notice. See Docterman v. Webster, decided at the present term. II. It is furthermore claimed, by the plaintiff, that Ruddick is not a bona fide purchaser, because, on the day on which he purchased under his deed of trust and before the completion of such purchase, he was notified by the plaintiff's agent of the existence of the mort- gage in suit. The fact of such a notice is conceded, and the only question which arises is, what effect, if any, it will have upon Rud- dick's rights? To sustain his position, the plaintiff refers to Thomas v. Graham, Walk. Ch. 118; Jeweti v. Pahner, 7 John. Ch. 65; and Miner v. Willoughby, 3 Minn. 239; w^hich are to the effect that " A plea of a bona fide purchaser, wdthout notice, must aver not only a want of notice at the time of the purchase, but also at the time of its completion, and of the payment of the money. The money must be actually paid before notice." Many other cases might be referred to, establishing the same principle. But, unfortunately for the plaintiff, his case does not fall within the reason upon which this principle is based. If Ruddick had no notice .at the time when he advanced his money and received his deed of trust in security therefor, no subsequent notice can affect him or in any way cut down his rights. He is in law considered as occupying as high ground as an absolute purchaser, from the mo- ment he parts with his money. Mortgagees are within the protection of the Statute, as well as purchasers. (R. S., 1843, p. 208, § 30; Code, 1851, §§ 1211-1214; Porter et air. Green et al., 4 Iowa, 571). III. We now arrive at the principal and most important question in the cause, and that is, whether the defendants are affected with constructive notice of the plaintiff's mortgage. And this raises but one inquiry, viz., whether under the registra- tion laws then in force, the total omission by the recorder to index this mortgage, deprived the record thereof of the power of imparting constructiA'e notice of its existence and contents. The prior decisions of this court, although not covering a case SECT. II ] BARNEY V. MC'CARTY 683 precisely like the present, aid nevertheless most materially in its solution. In other States there exists a most perplexing conflict of authority respecting the question whether the grantee in an instru- ment;, or a subsequent purchaser, shall suffer for the mistake or omission of the recorder in registering it, or neglecting to register it. By some courts it is considered, that where the party has duly de- posited his deed with the proper officer for record, he has performed his whole duty, and consequently the subsequent mistake or neglect of the recorder will not affect him or invalidate his title. (Nichols V. Reynolds, 1 R. I., 30, 31 ; Cook v. Hall, 1 Gilm., 575 ; 2 Sug. Ven., 466; Merricl- v. Wallace, 19 111., 486; McGregor v. HaJl, 3 S. &- P., 401; 10 Ala., 388; Beverly v. Ellis, 1 Rand. [Va.], 100.) In the case last cited, the court went so far as to hold, that where a deed is filed for record, it is in contemplation of law recorded, though it should, in consequence of being stolen, never be entered upon the record. But the current of authority is otherwise, hold- ing it to be the duty of the party filing the instrument, as betAveen him and a subsequent bona fide purchaser, to see that all of the pre-requisites of a valid and complete registration are complied with. (Frost V. Beehman-, 1 John. Ch., 288; 10 John., 544; Jennings v. Wood, 20 Ohio, 261; 8 Verm., 175; 1 Story's Eq. Jur., § 404; 10 Verm., 555.) And this question, conceded not to be free from diffi- culty, was upon solemn deliberation settled in this court in Miller v. Bradford, et al., 12 Iowa, 14. With this decision we are content, and the question cannot be regarded as being any longer an open one in this State. Agreeably to the doctrine there established, it was the duty of the mortgagee of the instrument in suit, to see that the essential requirements of the registry law were observed; for, unless substantially observed, the registry thereof would not impart con- structive notice to subsequent mortgagees or purchasers, and conse- quently the loss, if any, will fall upon him or his assignee, and not upon them. ■ We now advance one step further, witli a view to ascertain whether the indexing of the mortgage was an essential requirement of the Statute. The mortgage in question was executed and filed for record during the time when the Revised Statutes of 1843 ("The Blue Book ") were in force. There are three Acts which relate to this subject, viz.: 1st. Section 30 of the Act of February 16, 1843 (R. S., 202), entitled "An Act to regulate Coiweyances." 2d. Sections 3 and 4 of the Act of February 14, 1843 (R. S., 442), entitled, "An Act concerning Mortgages." 3d. Section 4 of the Act of January 23d, 1843 (R. S., .^)41), entitled "An Act relating to the Office of Recorder of Deeds." These laws were all passed at the same session, jind witliin ;i month of each other. Being in pari materia, they are not only to be con- strued together, but to be construed, if it can fairly and reasonably be done, so as to give operation and effect to each. 684 BARNEY V. Mf^CARTY [CHAP. XI Taking these Acts as a whole, they v(!ry clearly point out the succes- sive steps which together constitute a complete and therefore valid registration of an instrument. As constructive notice, by means of recorded instruments, depends wholly upon statutory provisions, it is necessary carefully to examine those provisions. As concerns the present inquiry, the substance of the Act of February 16, 1843, is, that the proper instrument " shall be recorded in the office of the recorder of the county in which the real estate is situated." (§ 29), and ''shall (§ 30), from the time of filing the same with the re- corder, impart notice to all persons of the contents thereof." While provision is thus made as to the effect of filing, no provi- sion is made as to the manner of filing, or noting, or mode of record- ing. The Act of February 14, § 2 (R. S., 442), after repeating almost literally the above language, as to the effect of filing, proceeds, in the next section (3), thus to point out the duty of the recorder: " It shall be the duty of the recorder to indorse on every mortgage filed in his office for record, and note in the record the precise time such mortgage was filed for record." By analyzing the fourth section of the Act of January 23, 1843, it will be seen that the recorder is required to perform the following acts, not only with respect to mortgages, but all instruments authorized to be recorded : 1. " File all deeds, r, J. The referee's report is conclusive as to the facts. It states, in substance, that the plaintiff had sufficient information to put him upon inquiry as to the defendant's mortgage; but that after making all the inquiry, which upon such infornuition it became his duty to make, he failed to discover that any such mortgage ex- isted. This being, as I think, Avhat the referee intended to state, is to be assumed as the true interpretation of his report. The question in the case, therefore, is as to the nature and effect of that kind of notice so frequently mentioned as notice sufficient to put a party upon inquiry. The counsel for the plaintiff contends that Avhile such a notice may be all that is required in some cases of equitable cognizance, it is not sufficient in cases arising under the Registry Acts, to charge the party claiming nnder a recorded title with knowledge of a prior unregistered conveyance. He cites several authorities in support of this position. In the case of Dei/ v. Dunham, 2 John. Ch. R. 182, Chancellor Kent says, in regard to notice under the Registr}'' Act : " If notice that is to put a party upon inquiry be sufficient to break in upon the policy and the express provisions of the Act, then indeed, the conclusion would be different; but I do not apprehend that the de- cisions go that length." Again, in his Commentaries, speaking on the same subject, he says: " Implied notice may be equally effectual with direct and positive notice; but then it must not be that notice which is barely sufficient to put a party upon inquiry." So in Jacl-son v. Van Valhenhurg, 8 Cow. 260, "Woodworth, J., says : " If these rules be applied to the present case, the notice was defective. It may have answered to put a person on inquiry, in a case where that species of notice is sufficient; but we have seen that to supply the place of registry, the law proceeds a step further." 720 WILLIAMSON V. BROWN [CHAP. XI A reference to some of the earlier decisions under the Registry Acts of England will tend, 1 think, to explain these remarks, which were probably suggested by those decisions. One of the earliest, if not the first of the English llecording Acts was that of 7 Anne, ch. 20. That Act differed from our General Registry Act in one impor- tant respect. It did not, in terms require, that the party to be pro- tected by the Act should be a bona fide purchaser. Its language was : ''And that every such deed or conveyance, that shall at any time after, «fec., be made and executed, shall be adjudged fraudulent and void, against any subsequent purchaser or mortgagee for valuable consideration, unless," (S:c. The English judges found some difficulty at first in allowing any equity, however strong, to control the explicit terms of the Statute. It was soon seen, however, that adhering to the strict letter of the Act would open the door to the grossest frauds. Courts of equity, there- fore, began, but with great caution, to give relief when the fraud Avas palpable. Hine v. Dodd, 2 Atk. 275, was a case in which the complainant sought relief against a mortgage having a preference under the Registry Act, on the ground that the mortgagee had notice. Lord Hardwicke dismissed the bill, but admitted that " apparent fraud, or clear and undoubted notice would be a proper ground of relief." Again he said : " There may possibly have been cases of relief upon notice, divested of fraud, but then the jjroof must be extremely clear." Jolland V. Stainhridge, 3 Ves. 478, is another case in Avhicli relief was denied. The Master of the Rolls, however, there says : " I must admit now that the registry is not conclusive evidence, but it is equally clear that it must be satisfactorily proved, that the person Avho registers the subsequent deed must have known exactly the situation of the persons having the prior deed, and knowing that, registered in order to defraud them of that title." Chancellor Kent refers to these cases in Dey y. Dunham (supra), and his remarks in that case, as to the effect, under the Registry Acts, of notice sufficient to put a party upon inquiry, were evidently made under the influence of the language of Lord Hardwicke and the Master of the Rolls above quoted. But the English courts have since seen, that if they recognized any equity founded upon notice to the subsequent purchaser of the l^rior unregistered conveyance, it became necessarily a mere ques- tion of good faith on the part of such purchaser. They now apply, therefore, the same rules in regard to notice, to cases arising under the Registry Acts, as to all other cases. It will be sufficient to refer to one only among the modern English cases on this subject, viz., Whitbread v. Boulnois, 1 You. & Coll. Ex. R. 303. The plaintiff Avas a London brewer, and supplied Jordan, who was a publican, with beer. It was the common prac- tice with brewers in London to lend money to publicans whom they SECT. Ill] WILLIAMSON V. BROWN 721 supplied witli beer, upon a deposit of their title deeds. Jordan had deposited certain deeds with the plaintiff, pursuant to this custom. He afterwards gave to one Boulnois, a wine merchant, a mortgage upon the property covered by the deeds deposited, which was duly recorded. Boulnois had notice of Jordan's debt to the jjlaintiflF, and of the existing custom between brewers and publicans, but he made no inquiry of the brewers. The suit was brought to enforce the equitable mortgage arising from the deposit. Baron Alderson held that the notice to Boulnois Avas sufficient to make it his duty to inquire as to the existence of the deposit; that his not doing so was evidence of bad faith; and the plaintiff's right, under his equitable mortgage, was sustained. No case could show more strongly that notice which puts the party upon inquiry is sufficient even under the Registry Act. The cases in our own courts, since Dajj v. DiiitJiam and Jarlson v. Van Valkenburgh (fiupra), hold substantially the same doctrine. Tuttle \. Jackson, 6 Wend. 213; Jackson v. Post, 15 Wend. 588; Grimstone v. Carter, 3 Paige 421. I can see no foundation in reason for a distinction between the evidence requisite to establish a want of good faith, in a case arising under the Recording Act, and in any other case; and the authorities here referred to are sufficient to show that no such distinction is recognized, at the present day, by the courts. The question, however, remains, whether this species of notice is absolutely conclusive upon the rights of the parties. The plaintiff's counsel contends, that knowledge sufficient to put the purchaser upon inquiry is only pre- sumptive evidence of actual notice, and may be repelled by showing that the party did inquire with reasonable diligence, but failed to ascertain the existence of the unregistered conveyance; while, on the other hand, it is insisted that notice which makes it the duty of the party to inquire, amounts to constructive notice of the prior conveyance, the law presuming that due incpiiry will necessarily lead to its discovery. The counsel for the defendant cites several authorities in support of his position, and among others the cases of TntfJe v. Jackson and Grim.slone v. Carter (supra). In the first of these cases, Walworth, Chancellor, says : " If the subsequent purchaser knows of the un- registered conveyance, at the time of his purchase, he cannot pro- tect himself against that conveyance; and whatever is sufficient to make it his duty to inquire as to the rights of others, is considered legal notice to him of those rights;" and in Grimstone v. Carter, the same judge says: "And if the person claiming the prior equity is in the actual possession of the estate, and the purchaser has notice of that fact, it is sufficient to put him on inquiry as to the actual rights of snch ]iossessor, and is good constrnctive notice of those rights." It must be conceded that the language used by the learned Chan- 722 WILLIAMSON V. BROWN [CHAP. XI ecllor in these cases, if strictly accurate, would go to sustain the doctrine contended for by the defendant's counsel. Notice is of two kinds : actual and constructi^'^e. Actual notice embraces all degrees and grades of evidence, from the most direct and positive proof to the slightest circumstance from which a jury would be warranted in inferring notice. It is a mere question of fact, and is open to every species of legitimate evidence which may tend to strengthen or impair the conclusion. Constructive notice, on the other hand, is a legal inference from established facts; and like other legal presumptions, does not admit of dispute. " Construc- tive notice," says Judge Story, " is in its nature no more than evi- dence of notice, the presumption of which is so violent that the court will not even allow of its being controverted." Story's Eq. Juris. § 399. A recorded deed is an instance of constructive notice. It is of no consequence whether the second purchaser has actual notice of the prior deed or not. He is bound to take, and is presumed to* have, the requisite notice. So, too, notice to an agent is constructive notice to the principal; and it would not in the least avail the latter to show that the agent had neglected to communicate the fact. In such cases, the law imputes notice to the party whether he has it or not. Legal or implied notice, therefore, is the same as constructive notice, and cannot be controverted by proof. But it will be found, on looking into the cases, that there is much want of precision in the use of these terms. They have been not unfrequently applied to degrees of evidence barely sufficient to war- rant a jury in inferring actual notice, and which the slightest oppos-- ing proof would repel, instead of being confined to those legal pre- sumptions of notice which no proof can overthrow. The use of these terms by the Chancellor, therefore, in Tuttle v. Jachsoti and Grirastone v. Carter, is by no means conclusive. The phraseology uniformly used, as descriptive of the kind of notice in question, " sufficient to put the party upon inquiry," would seem to imply that if the party is faithful in making inquiries, but fails to discover the conveyance, he will be protected. The import of the terms is, that it becomes the duty of the party to inquire. If, then, he performs that duty is he still to be bound, without any actual notice? The presumption of notice which arises from proof of that degree of knowledge which will put a party upon inquiry is, I apprehend, not a presumption of law, but of fact, and may, there- fore, be controverted by evidence. In Whithread v. Boulnois (supra), Baron Alderson laid down the rule as follows : " "When a party having knowledge of such facts as would lead any honest man, using ordinary caution, to make further inquiries, does not make, but on the contrary studiously avoids maki;ig, such obvious inquiries, he must be taken to have notice of those facts, which, if he had used such ordinary diligence, he would SECT. Ill] WILLIAMSON V. BROWN 723 readily have ascertained." This very plainly implies that proof that the party has used due diligence, but without effect, would repel the presumption. In this case, it is true, the decision was against the party having the notice. But in Jones v. Smith, 1 Hare, 43, we have a case in which a party, who had knowledge sufficient to put him on inquiry, was nevertheless held not bound by the notice. The defendant had loaned money upon the security of the estate of David Jones, the father of the plaintiff. At the time of the loan he was informed, by David Jones and his wife, that a settlement w^as made previous to the marriage, but was at the same time assured that it only affected the property of the wife. He insisted upon seeing the settlement, but was told that it was in the hands of a rela- tive, and that it could not be seen without giving offence to an aged aunt of the wife, from whom they had expectations. David Jones, however, after some further conversation, promised that he would try to procure it for exhibition to the defendant. This promise he failed to perform. It turned out that the settlement included the lands upon which the money was loaned. Here was certainly knowl- edge enough to put the party upon inquiry; for he was apprised of the existence of the very document which was the foundation of the complainant's claim. He did inquire, however, and made every rea- sonable effort to see the settlement itself, but was baffled by the plausible pretences of David Jon(»s. The Vice-Chancellor held the notice insufficient. He said : " The affairs of mankind cannot be carried on with ordinary security, if a doctrine like that of con- structive notice is to be refined upon until it is extended to cases like the present." Possession by a third person, under some previous title, has fre- quently but inaccurately been said to amount to constructive notice to a purchaser, of the nature and extent of such prior right. Such a possession puts the purchaser upon inquiry, and makes it his duty to pursue his inquiries wnth diligence, but is not absolutely conclu- sive upon him. In Ilamhury v. Litchfield, 2 Myl. & Keene 629, when the question arose, the Master of the Rolls said : " It is true that when a tenant is in possession of tlie premises, a purchaser has implied notice of the nature of his title; but if, at the time of his purchase, the tenant in possession is not the original lessee, but merely holds under a derivative lease, and has no knowledge of the covenants contained in the original lease, it has never been con- sidered that it was want of due diligence in tlic ])nrchaser, which is to fix him with implied notice, if he does not pursue his inquiries through every derivative lessee until he arrives at the person entitled to the original lease, which can alone convey to him information of the covenants." This doctrine is confirmed by the language of Judge Story, in FJagg v. Mann ct ah. 2 Sumner, '^'A. He says: "I admit that the rule in equity seems to be, that where a tenant or other person is 724 WILLIAMSON V. BROWN [CHAP. XI in possession of the estate at the time of the purchase, the purchaser is put upon inquiry as to the title; and if he does not inquire, he is bound in the same manner as if he had inquired, and had positive notice of the title of the party in possession." It is still further confirmed by the case of Rogers v. Jones, 8 ^N". Hamp. 264. The language of Parker, J., in that case, is very em- phatic. He says: "To say that he (the purchaser) was put upon inquiry, and that having made, all due investigation, without obtain- ing any knowledge of title, he was still chargeable with notice of a deed, if one did really exist, would be absurd." If these authorities are to be relied upon, and I see no reason to doubt their correctness, the true doctrine on this subject is, that where a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been gviilty of a degree of negligence equally fatal to his claim to be considered as a bona fide purchaser. This presumption, however, is a mere inference of fact, and may be repelled by proof that the purchaser failed to discQver the prior right, notwithstanding the exercise of proper diligence on his part. The judgment should be reversed, and there should be a new trial, with costs, to abide the event. Paige, J. The question to be decided is, whether under the finding of the referee, the plaintiff is to be deemed to have had at the time of his purchase, legal notice of the prior unrecorded mortgage of the defendant. The referee finds that the plaintiff had sufficient infor- mation or belief of the existence of such mortgage to put him upon inquiry; but that upon pursuing such inquiry to the extent of such information and belief, he did not find that such mortgage existed or had been given. It seems to me that the two findings are incon- sistent with each other. If the plaintiff on pursuing an inquiry to the full extent of his information and belief as to the existence of the defendant's mortgage, was unable to find that it either then existed or had been given, the highest evidence is furnished that the information received or belief entertained by the plaintiff was not sufficient to put him on inquiry as to the existence of such mort- gage. The last part of this finding effectually disproves the fact pre- viously found of the sufficiency of notice to put the plaintiff on in- quiry. The two facts are utterly inconsistent with each other, and cannot possibly coexist. The remarks of Parker, Justice, in Rogers v. Jones, 8 N. Hamp. 264, 269, are directly apposite to the facts found by the referee. Judge Parker says: "To say that he (demandant), was put upon inquiry, and that having made all due investigation without obtain- ing any knowledge of title, ke was still chargeable with notice of a deed, if one did really exist, would be absurd." The sound sense of SECT. Ill] WILLIAMSON V. BROWN 725 these observations is clearly shown by the ])rineiple of the rule that information sufficient to put a party upon inquiry is equivalent to evidence of actual notice, or to direct and positive notice. That principle is, that such information will, if followed by an inquiry prosecuted with due diligence, lead to a knowledge of the fact with notice of which the party is sought to be charged. Hence, in all cases where the question of implied notice of a prior unrecorded mortgage or conveyance arises as a question of fact to be determined, the court must decide whether the information possessed by the party would, if it had been followed up by proper examination, have led to a discovery of such mortgage or conveyance. If the determination is that such an examination would have resulted in a discovery of the mortgage or conveyance, the conclusion of law necessarily results that the information possessed by the party amounted to implied notice of such instrument. But if the determination is the converse of the one stated, the information of the party cannot be held to be an implied notice of the deed or mortgage. These propositions Avill be found to be fully sustained by authority. Kennedy v. Green, 3 Myl. & Keene, 699; 2 Sugden on Vendors, &c., 552, Am. ed. of 1851, marg. page 1052; 4 Kent's Com. 172; Howard Ins. Co. v. Hahey, 4 Sandf. S. C. R. 577, 578; same case, 4 Seld. 274, 275; 1 Story's Eq. Jur. §§ 398-400, 400 a; Jachson v. Burgott, 10 John. 461 ; Dunham v. Dey, 15 John. 568, 569, in error; Jackson v. Given, 8 John. 137; JoUand v. Stainhridge, 3 Ves. 478; Pendleton v. Fay, 2 Paige, 205. Where the information is sufficient to lead a party to a knowledge of a prior unrecorded conveyance, a neglect to make the necessary inquiry to acquire such knowledge, will not excuse him, but he will be chargeable with a knowledge of its existence; the rule being that a party in possession of certain information will be chargeable wuth a knowledge of all facts which an inquiry, suggested by such infor- mation, prosecuted with due diligence, would have disclosed to him. 4 Sandf. S. C. R. 578; 3 Myl. & Keene, 699. In this case the fact being found by the referee, that the plaintiff after pursuing an in- quiry to the extent of his information, failed to discover the existence of the defendant's mortgage, it seems to me that neither law nor justice will justify us in holding the plaintiff chargeable with implied notice of such mortgage. The doctrine of notice and its operation in favor of a prior unrecorded deed or mortgage rests upon a question of fraud, and on the evidence necessary to infer it. 4 Kent's Com. 172. Actual notice aifects the conscience, and convicts the junior purchaser of a fraudulent intent to defeat the prior conveyance. His knowledge of facts and circumstances at the time of the second purchase sufficient to enable him on due inquiry to discover the existence of the prior conveyance, is evidence from which a fraudulent intent may be inferred. 15 John. 569; 2 John. Ch. R. 190; Jachson V. Burqohf, 10 John. 462. Now if it is ascertained and found as a fact, -hat the facts and circumstances within the knowledge of the 726 GEORGE V. KENT [CHAP. XI second purchaser, at the time of his purchase, were insufficient to lead him, on a diligent examination, to a discovery of the prior con- veyance, how upon this finding can a fraudulent intent be inferred, and if not, how can he be charged with notice, which implies a fraudu- lent intent? It is not in the nature of things, that a knowledge of the same facts and circumstances, shall at one and the same time, be held evidence of both innocence and guilt. I think the rule well established that an inference of a fraudulent intent on the part of a junior purchaser or mortgagee, must in the absence of actual notice, be founded on clear and strong circumstances, and that such infer- ence must be necessary and unquestionable. McMechan v. Griffing, 3 Pick. 149, 154, 155; Hine v. Dodd, 2 Atk. 275; Jackson v. Given, 8 John. 137; 2 Mass. 509; 2 John. Ch. E. 189; 15 John. S. C. 569; 8 Cow. 264, 266. For the above reasons, both the judgment rendered on the report of the referee, and the judgment of the General Term affirming the same, should be reversed, and a new trial should be granted. All the judges concurred in the result of the foregoing opinions except CoMSTOCK and Brown, who, not having heard the argument, took no part in the decision. New trial ordered. GEORGE V. KENT and Others 7 All. (Mass.) 16. 1863. Bill in equity to redeem land from a mortgage. It appeared at the hearing that on the 7th of May, 1850, Nathaniel Chessman, being the owner of a parcel of land on the south side of Water Street in Milford, containing about three acres, mortgaged it to Maxcy Cook; that afterwards, on the 1st of July, 1853, he con- veyed a small lot on the easterly part thereof to Hugh Galliher, by a deed of warranty which was duly recorded; that afterwards, on the 5th of June, 1854, he conveyed a small lot on the westerly part thereof to Patrick Murphy, by a deed of warranty which was not recorded; and that afterwards, on the 2d of November, 1854, he con- veyed another small lot, lying between the lots conveyed to Galliher and Murphy, to the plaintiff, by a deed of mortgage which was duly recorded, containing the following description of the mort- gaged premises : " Beginning at the northeasterly corner of the premises, on Water Street, on the land of Hugh Galliher; thence S. 2° W. by land of said Galliher eight rods; thence S. 871/4° W. five and one half rods to land of Patrick Murphy, bounding south- erly on land of N. Chessman; thence N. 2° E. eight rods to said street, bounding westerly on land of said Murphy; thence easterly by said street five and one half rods to the place of beginning." The mortgage to Maxcy Cook was assigned to the defendants in February, 1861; and in May, 1861, they commenced an action against the plaintiff to foreclose it, describing in their writ the lot conveyed to SECT. Ill] GEORGE V. KENT 727 the plaintiff, and no more, and obtained a conditional judgment in February, 1862, for the sum of $1,679.15. In April, 1861, the lot conveyed to Murphy became vested in the defendant Kent by mesne conveyances. The plaintiff contended that the Murphy lot should be held to contribute, in proportion to its value, towards the redemption of the Cook mortgage; and the case was reserved by Chapman, J., for the determination of the whole court. Chapman, J. It is not denied that the plaintiff has a right to redeem on payment of the amount for which conditional judgment was rendered; but he claims the right on payment of a less sum. He insists that as his deed was a deed of warranty, and was made and recorded, while the deed to Murphy was unrecorded, he has a right to hold the Murphy lot liable to contribute to the payment of the Cook mortgage. This position would be correct if there were no other facts to affect it. But the defendants reply that he had notice of the deed to Murphy. The fact relied on to prove such notice is, that Murphy's lot adjoins him on the west, and in his deed he is bounded westerly on land of Patrick ]Murphy. The court are of opinion that this was sufHcient notice of Murphy's title. Be- fore the enactment of Rev. Sts. c. 59, § 28, actual notice of an unre- corded deed was not necessary; and circumstantial evidence of title was held to be sufficient. But the Rev. Sts. made a change in this respect, and required that there should be actual notice. Curtis v. Mundy, 3 Met. 405. Pomroy v. Stevens, 11 Met. 244. Mara v. Pierce, 9 Gray 306. Parker v. Osgood, 3 Allen 487. The case of Curtis V. Mundy is, to some extent, overruled by the later cases; yet none of them hold it to be necessary that the notice shall be by actual exhibition of the deed. Intelligible information of a fact, either verbally or in writing and coming from a source which a party ought to give heed to, is generally considered as notice of it, except in cases where particular forms are necessary. In this case no particular form is necessary. The description of the land in the plaintiff's deed was equivalent to an affirmation of his grantor that the land lying west of it was owned by Patrick Murphy, by virtue of some proper instrument of conveyance. He knew from this informa- tion that Murphy's title was prior to his own. Having such a title, and the plaintiff having notice of it. Murphy and his grantees are not liable to contribute towards the redemption of the Cook mort- gage. Chase v. Woodhury, 6 Cush. 143. Bradley v. George, % Allen 392. The plaintiff is entitled to redeem on payment of the amount of the conditional judgment against him, witli interest, deducting rents and profits received.^ 1 Compare Stanley v. Schwalhy, 162 U. S. 255; Logger v. Mutual Union Loan Assn., 146 III. 283; Charles v. Whitt, 187 Ky. 77! As to what may amount to " actual " notice, see Lamb v. Pierre, 113 Mass. 72; Maupin v. Emmons, 47 Mo. 304; Brink tnan v. Jones, 44 Wis. 498, 517 ct seq. 728 NEWMAN V. CHAPMAN [CHAP. XI NEWMAN V. CHAPMAN 2 Rand. (Va.) 93. 1823. Appeal from the Chancery Court of Fredericksburg. George Chapman, jun., filed liis bill stating that a certain John Armistead of the County of Caroline, died in 1788, leaving a large estate in lands, negroes, and other property, wlr'ch he devised to his children : that, his son William Armistead received the portion allotted to him, and gave a mortgage upon his land; which mortgage w^as afterwards assigned to a certain Jesse Simms : that the said Simms brought a suit in the Chancery Court of Eichmond, to foreclose the said mortgage, and obtained a decree, by virtue of which the land was duly sold ; the said Simms became the purchaser, and the court confirmed the sale; whereby, he became the lawful proprietor in fee, of the said land and appurtenances, so far as the title of the said William Armistead was concerned; and the said Simms was en- titled to be put in possession of the same, subject only to the claims of such persons as should have right derived from any other person than the said William, or derived from him prior to the said mort- gage or suit in chancery to foreclose, as aforesaid : that the sale and conveyance of the commissioners was made on the 13th of July, 1804, and on the 13th of August in the same year the said Jesse Simms conveyed the said tract of land with its appurtenances to the complainant, in consideration of $11,400, which the complainant had previously paid to the said Jesse Simms, he not supposing that any dispute could be raised concerning a title, acquired and con- firmed by the authority of the Court of Chancery; to which he is now obliged to apply for its further aid to effectuate its own decree: that a part of the said land, viz. : about 593 acres, is in possession of Thomas Newman; another part consisting of about acres is in possession of Eichard Newman; and the residue is still in pos- session of the said William Armistead : that, Thomas and Eichard Newman have no other title or claim to the said land, except that derived from the said William Armistead, subsequent to the institu- tion of the said suit of Jesse Simms, and while it was pending in the said Superior Court of Chancery: that the said William Armistead has been in the receipt of the profits of the lands in his possession, by which he has principally maintained his family, and has ren- dered no account thereof to the complainant : that the rents and profits of the portions of land in possession of the said Thomas and Eichard Newman, have been received by them, in like manner, and no account rendered to the complainant : that all these persons re- fuse to deliver possession to the complainant of the said lands, and also refuse to account for the profits, according to their respective receipts and enjoyments: that no writ of habere facias possessionem was issued from the said Superior Court, and the said Jesse Simms SECT. Ill] NEWMAN V. CHAPMAN 729 is dead, insolvent, and has no representative known to the com- plainant: that, in a case so complicated, the complainant is ad- vised to apply to the Court of Chancery, to carry into ejfect its own decree, in such manner as shall be consistent with the just rights of all persons who do not claim title from or under the said William Armistead, since the pendency of the said suit of the said Jesse Simms, whose bill was filed on the 12th day of May, 1797; but, with regard to the said William, the complainant is advised that the said decree and proceedings of sale are final and conclusive. He therefore prays, that the said Thomas and Richard Xewman, and William Armistead, may be made defendants to this bill; that the decree aforesaid may be carried into effect, in favor of the complainant, against the said William Armistead, and all persons claiming under him, since the 12th day of May, in the year 1797, kc. Thomas Newman answered, that he had purchased of William Armistead, at different times, between the years 1793 and 1797, about 326 acres of land, out of the tract in the bill mentioned; that the deeds will fully show, at what time the purchases of the said land were made, except as to 47 acres, which were purchased in October, 1793; but, that the defendant did not get a conveyance from the said William Armistead, unfit the month of Jiili/, 1797, at or about which time he purchased a further quantity of 104 acres, and both purchases Avere included in the same deed ; that the defend- ant never knew anything of fJie existence of the suit in Chancery for the sale of the lands in the bill mentioned, until long after he had completed his purchases of the aforesaid lands of William Armistead; nor had he ever seen anything of the mortgage in the bill mentioned; nor did he know that any such mortgage existed, until he had com- pleted those purchases and obtained his deeds; that the defendant also purchased of John B. Armistead, who had, before that time, purchased of William Armistead, about 513 acres of the same tract of land, on or about the month of April or May, 1800, but did not get a conveyance for the same, until the month of April, 1801 ; that at the sale by the commissioners, the defendant attended with liis deeds, and forbade the sale, as it would be illegal, and the title was in him. He therefore charges, that the complainant, before he pur- chased of Simms, was fully apprised of the title of the defendant. Richard ISTewman stated in his answer, that, as to the transactions between William Armistead and Abraham Morehouse, and the mort- gage of land to him by the said Armistead, he had heard nothing, until several years after he had purchased of William Armistead 163 acres of land, at 40 shillings per acre, and had the deed for the same recorded in the County Court of Prince William, which record was made in October, 1793; and, when he did hear that such a mortgage Avas in existence, he also heard that // had not hcen re- corded in due time to give it vaUdih/ (uinijist the claim of a third person. He, therefore, hopes, that his title to the lands purchased 730 NEWMAN V. CHAPMAN [CHAP. XI of William Armistead, may not be affected by any decision relative to the said mortgage, &c. The deed of mortgage from William Armistead and wife to Abra- ham Morehouse, was dated on the 3d day of December, in the year 1794; which mortgage was assigned by David Allison, as attorney for the said Morehouse, to the said Simms, by virtue of a power of attorney, which was attested by only two witnesses. A deed from William Armistead and Nancy, his wife, and John B. Armistead to Thomas Newman, conveying 151 acres, is dated on the 11th day of September, 1797. A deed from William Armistead to Thomas Newman, dated the 26th day of September, 1793, for 175 acres. The bill to foreclose, brought by Jesse Simms against William Armistead, was filed on the 12th day of May, 1797. The deed made by the commissioners for the sale of the land, under. a decree of the court, to Jesse Simms, is dated on the 13th day of July, 1804. The deed from Jesse Simms to George Chapman, the plaintiff, conveying the tract of land on which William Armistead then lived, containing 1140 acres, more or less, being the same that the said Armistead conveyed to Abraham Morehouse, by deed of mortgage, dated the 3d of December, 1794, and by the said Morehouse assigned to the said Jesse Simms. The mortgage from Armistead to Morehouse was not recorded within the time prescribed by law. The deed from William Armistead to Richard Newman, convey- ing 163 acres, is dated the 27th day of Sef)tember, 1793, William Armistead never answered the bill. The Chancellor decreed, that William Armistead and Thomas Newman should severally deliver up to the plaintiff, possession of all the lands held by them, mentioned in the deed of mortgage be- tween xirmistead and Morehouse, except 175 acres described in the deed of the 26th of September, 1793, between the said Armistead and Thomas Newman; and, that one of the commissioners of the court should make up an account of the rents and profits of the lands so directed to be given up, from the 9tli day of August, 1804. Thomas Newman appealed to this court. December 6. Judge Green delivered the following opinion : — The object of the Statute requiring mortgages to be recorded, and declaring that, if not recorded as the Statute prescribes, they shall be void as to creditors and subsequent purchasers, was to prevent, by affording the means of ascertaining the existence of the encum- brance, the frauds which might otherwise be practised by the mort- gagor and mortgagee, on ci-editors and subsequent purchasers, by concealing it. If a purchaser has actual notice otherwise of the existence of the mortgage, he is not only not prejudiced by the failure to record it, but is himself guilty of a fraud in attempting SECT. Ill] NEWMAN V. CHAPMAN 731 to avail himself of tlie letter of the Statute, to the prejudice of an- other who has a just claim against the property. The Statute, indeed, vests in the subsequent purchaser, in that case, the legal title ; yet, although the legal title of the mortgagee is divested by the subse- quent conveyance, his equitable right to subject the property to the payment of the debt, remains; not only because the mortgage is good between the parties; but, even if void as a conveyance between the parties, it Avould still be evidence of an agreement between them, {ind a court of equity will give effect to the equity of the mortgagee, by holding the subsequent purchaser to be a trustee. Upon these principles, the Court of Chancery in England has always relieved a prior purchaser, whose deed has not been registered, against a subse- quent purchaser with notice. I had at one time great doubts, whether the principle of those decisions did not apply to the case of a lis pendens. Lord Hard- Avicke, in the leading case of Le Neve v. Le Neve, 3 Atk. 646, de- clared, that the Statutes of Registry in England (which, as to the matter under consideration, are the same in effect as our Statute), only vested the legal title in the subsequent purchaser, and left the case "open to all equity;" and, in that case, he relieved, against a subsequent purchaser, upon constructive, and not actual notice, the notice being to an agent of the purchaser. A lis pendens has always been spoken of in the English Court of Chancery, as a con- structive notice to all the world; as all men are bound and presumed to take notice of the proceedings of a court of justice. If these propositions were universally true, it would seem to follow, that a lite pendente purchaser was a purchaser with notice, and would take the property subject to the claims of the plaintiff in the suit, as the defendant held it. In all questions of fact, the existence of the matter in question may be proved by direct evidence, or by the proof of other facts, from which it may be justly be inferred, that the fact in question does exist. A fact thus proved by circumstantial evi- dence, is taken to exist for all purposes, as if it were proved by direct evidence. I cannot, therefore, feel the force of the observation fre- quently thrown out in modern cases, that a notice to affect a subse- quent purchaser, after an unregistered deed, must be actual, and such as to affect his conscience, and not constructive. A notice, proved by circumstances to exist, affects the conscience of the party as much as if i)roved by direct evidence. In all other cases, a purchaser of a legal estate, with notice of a subsisting equity, is bound by con- structive, as well as by actual, notice; and that, because his conscience is affected, and he is guilty of a fraud. Without fraud on his part, his legal title ought to prevail. I see no reason why a difference should be made, between the case of n ])urchaser after an unregistered deed, and a purchaser of a legal title, subject to any other equity, as to the proof of the notice which ought to be held to bind them. This distinction between an actual and constructive notice, in the 732 NEWMAN V. CHAPMAN [CHAP. XI case of a purchaser after an unregistered deed, seems to have j^ro- ceeded from a doubt, whether the relief given in the early cases u})on that subject, had not been in opposition to the spirit and policy, as well as the letter, of the Statutes of Registry. The rule, as to the effect of a lis pendens, is founded upon the necessity of such a rule, to give effect to the proceedings of courts of justice. Without it, the administration of justice might, in all cases, be frustrated by successive alienations of the property, which was the object of litigation, pending the suit, so that every judgment {jnd decree would be rendered abortive, where the recovery of specific property was the object. This necessity is so obvious, that there was no occasion to resort to the presumption, that the purchaser really had, or by inquiry might have had, notice of the pendency of the suit, to justify the existence of the rule. In fact, it applied in cases in which there was a physical impossibility that the pur- chaser could know, with any possible diligence on his part, of the existence of the suit, unless all contracts were made in the office from which the writ issued, and on the last moment of the day. For, at common laAv, the writ w^as pending from the first moment of the day on which it was issued and bore teste; and a purchaser, on or after that day, held the property subject to the execution upon the judgment in that suit as the defendant would have held it, if no alienation had been made. The Court of Chancery adopted the rule, in analogy to the common law, but relaxed, in some degree, the severity of the common law. For, no lis pendens existed until the service of the subpoena and bill filed; but, it existed from the ser- vice of the suhpcena, although the bill were not filed until long after ; so that a purchaser, after service of the suhpoenu and before the bill was filed, would, after the filing of the bill, be deemed to be a lite pende7ite purchaser, and as such, be bound by the proceedings in the suit, although the subpoena gave him no information as to the sub- ject of the suit. A subpoena might be served the very day on which it was sued out, and there is an instance in the English books of a purchaser who purchased on the day that the subpoena was served, without actual notice, and who lost his purchase by force of this rule of law. This principle, however necessary, was harsh in its effects upon bona fide purchasers, and was confined in its operation to the extent of the policy on which it was founded; that is, to the giving full effect to the judgment or decree which might be ren- dered in the suit depending at the time of the purchase. As a proof of this, if the suit was not prosecuted with effect, as if a suit at law was discontinued, or the plaintiff suffered a nonsuit, or if a suit in chancery was dismissed for want of prosecution, or for any other cause not upon the merits, or if at law or in chancery a suit abated ; although, in all these cases, the plaintiff, or his proper representative might bring a new suit for the same cause, he must make the one who purchased pending the former suit, a party; and, in this new SECT. Ill] NEWMAN V. CHAPMAN 733 suit, such purchaser would not be at all affected by the pendency of the former suit at the time of his purchase. In the case of an abate- ment, however, the original suit might be continued in Chancery, by revivor, or at law, in real actions, abated by the death of a party, by journies accounts, and the purchaser still be bound by the final judgment or decree. If a suit be brought against the heir, upon the obligation of his ancestor binding his heirs, and he alienates the land descended, pending the writ, upon a judgment in that suit, the lands in the hands of the purchaser would be liable to be ex- tended, in satisfaction of the debt. But, if that suit were discon- tinued, abated, or the plaintiff suffered a nonsuit, in a new action for the same cause, the purchaser would not be affected by the pen- dency of the former suit at the time of his purchase ; and, if he could be reached at law, in equity it could only be, upon proof of actual notice and fraud. If a Us pendens was notice then, as a notice at or before the purchase would, in other cases, bind the purchaser in any suit in equity, prosecuted at any time thereafter, to assert the right of which he had notice, would bind the purchaser, so ought the U^ pendens to bind him in any subsequent suit prosecuted for the same cause; but it does not. Again; a bill of discovery, or to per- l)etuate the testimony of witnesses, ought, if all persons were bound to take notice of what is going on in a court of justice, to be a notice to all the world, as much as a bill for relief. But, these are decided to be no notice to any purpose; a proof that the rule, as to the effect of a Us pendens, is one of mere policy, confined in its opera- tion strictly to the purposes for which it was adopted ; that is, to give effect to the judgments and decrees of courts of justice, and that it is not properly a notice to any purpose whatsoever. The English judges and elementary writers have carelessly called it a notice, because, in one single case, that of a suit prosecuted to decree or judgment, it had the same effect upon the interests of the pur- chaser, as a notice had, though for a different reason. But, the courts have not, in any case, given it the real force and effect of a notice. I think that the Statute overrules this principle of law, in the case of a lite pendente purchaser, after an unrecorded mortgage. The decisions in the cases of notice, are according to the policy and spirit of the Statutes; since, in those cases, the purchaser has the very benefit which the law intended to provide for him, and he is chargeable with mala fides, in attempting to acquire that to which he knows another has a just right. He cannot complain, that the mortgagee has done him an injury by his default in failing to record his mortgage, as the law requires. But, if the ])urchaser were held to be affected by the pendency of a suit, if he had not actual notice, he would suffer an injury by the default of the mortgagee, unless it were held to be his duty to inquire if any suit were d(>i)ending^ when he had no reason to suspect that there was any defect in the 734 NEWMAN V. CHAPMAN [CHAP. XI title, I think, that to require him to look to any other source of information than that which the Statute has provided for him, would be contrary to the spirit and policy, and letter of the Statute. It follows, that the decree is erroneous, as it respects the 151 acres conveyed to the appellant in September, 1797 ; but, as to the 513 acres, which the appellant states in his answer that he purchased in 1800, he is not protected by the Statute. He admits, that he came into the possession pendente lite. He does not deny notice of the mortgage, if that fact be material, upon the pleadings in this cause; and he does not show that he was a purchaser, and that a conveyance was made to him. As to this, then, the decree ought to be affirmed, unless the other objections made at the bar ought to prevail. These are, that the suit was not so instituted as to attach on Morehouse's title under the mortgage, he not being a party, and there being no evidence that his title was in the plaintiff in that suit; that a court of equity has no jurisdiction, as the plaintiff, if he has a right, has a legal remedy; that the deed under which the plaintiff claims, passed no title, as the property was then in the adverse posses- sion of another; and, that the rents and profits should be ascertained by a jury, and not by a commissioner. If the rule be, that a purchaser, pending the suit, is bound by the decree in the suit as the defendant is bound, then it is too late now to urge the first of these objections. It might, possibly, have been urged by Armistead, whilst the suit was depending. But, failing to do so, he was bound by the decree, whether it were right or wrong. I think, however, that the objection could not have been relied on with effect, in the original suit. The power of attorney, by authoriz- ing the attorney to dispose of the mortgage, for and in the name of Morehouse, authorized him to convey the legal title, and that was the effect of the deed to Simms. The power of attorney being attested by only two witnesses, was not, for that cause, defective. The law does not require any particular form, as to the attestation of a power of attorney to convey land : as, between the parties, such a power may be proved by any evidence, which would be sufficient to prove any other fact in a court of justice. A court of equity always has jurisdiction to carry into effect its own decrees. In this case, a bill for that purpose was necessary; as well, because another party, not appearing as a party on the record, had become interested, as on account of the death of Simms. The decree had never been executed. If there had been no change of the interest, and Simms had lived, the decree might have been executed, and Simms let into possession by the ordinary proceedings in the court for that purpose. After the decree was so executed, if Simms, or his assignee, had been ousted or disturbed, he or his assignee would have been bound to proceed at law. The Court of Chancery was not fundus officio, until the decree was executed by the delivery of possession, I do not think, that Armistead could hold a possession adverse to SECT. Ill] NEWMAN V. CHAPMAN 735 Morehouse or his assignee, and consequently the conveyances of Morehouse and Simms passed the title they professed to pass, unless the sale to Newman varied the case ; but, that sale being made pend- ing the suit, Newman could no more hold an adversary possession, unless he had taken a conveyance without notice, than Armistead himself could. Armistead was a tenant at will, and so was Newman, standing in his place. The account of rents and, profits might as well be taken by a commissioner, as ascertained by a jury, and the former is the most usual course.^ Judge Coalter. I am of opinion, that the Chancellor erred in his decree, in directing the appellant to deliver possession of the tract of 151 acres, conveyed by William Armistead to him, on the 11th of September, 1797, by the deed of lease and release in the record, of that date. The bill claims to set up a mortgage, executed by the aforesaid William Armistead, of anterior date to the above conveyance; but which was never recorded, purely on the ground, that at the time of the purchase by the appellant, there was a suit pending to foreclose the mortgage. If the Act of Assembly in regard to mortgages not recorded, and which was in force at the time this bill was filed, is to be construed in connection with the previous clause in relation to other convey- ances, so as to transpose the words from the one to the other, in relation to notice, and thus to make the law precisely what it now is, under the Act of 1819; let us inquire how the appellee would have stood in a court of law, on a special verdict, finding simply the mort- gage and subsequent conveyance, and a suit pending to foreclose the mortgage at the time of the conveyance? The case for him would rest on an unrecorded mortgage against a subsequent conveyance, and which is expressly declared by the Act to be void as to such subsequent purchaser, not having notice thereof. What sort of notice? Undoubtedly, such as would affect the con- science of the purchaser; otherwise, the Act would be no safeguard to the innocent, as it was intended to be. A mere lis pendens is not such notice as that. This has been decided, as will be seen in a case mentioned in a note to the case of Le Neve v. Le Neve; and, also, 1 The following were the cases referred to by Judge Gheen, in the course of his opinion: Durbainc v. Knight, 1 Vorn. 318; Prrston v. Txihhin, Ibid. 286; 15 Vin. Abr. 128, pi. 2; Birch v. Wade, Ves. & Beam. 200; Murraj/ v. Ballow, 1 Johns. Ch. Cas.; Littlcherry's Cose, 5 Rop. 476; Cro. James. 340; 2 Eq. Ca. Abr. 482; lb. 685; 3 Vcs. 485; 1 Eq. Ca. Abr. 358; Bcntut v. Batchelor, 1 Ves. jun. 64; Ilabcrghatn v. Vincent. Ibid. 68; 3 Atk. 243; Shanno7i v. Brndstreet, 1 Sch. and Lcfr. 66; Brace v. D)/chesfi of Marlborough, 2 P. W. 491; 2 Vent. 337; Brotherton v. Ilatt, 3 Vern. 574; 2 Eq. Ca. Abr. 594; Bac. Abr. tit. Fraud. letter C; Gooch's Case, 5 Co. Rep. 80; 1 Fonb. Eq. 279; Curtis v. Perry, 6 Ves. 745; Davis v. Earl of Strathmorc, 16 Ves. 419; Wi/att v. Harwell, 19 Ves. 439. 736 NEWMAN V. CHAPMAN [CHAP. XI as I am told, in a late case which I have not examined, reported in 19 Vesey. A court of law could not substitute any other kind of notice for that contemplated by the Act. But, if the party has ground for coming into equity, that court, too, I presume, must follow the law. But if, previous to the Act of 1819, the mortgagee of an unrecorded mortgage stood, as against a subsequent purchaser, as he did in England under the Registry .Acts (and I incline to think he did), then his only remedy was in equity; and there he can only prevail on the ground of fraud, or such notice as would aifect the conscience of the purchaser, and which was, therefore, considered a fraud; and it has been decided as aforesaid, and, I think, correctly, that a mere hs pendens did not affect the conscience. Suppose, in this case, the appellant had not denied notice, no charge of notice being in the bill, but had simply answered, that he had purchased for value, and got his deed, exhibiting it with his answer, and had demurred to the residue of the bill. Could the appellee have succeeded? I apprehend not. Or, would not such an answer have been a full response to the bill, no fraud or notice being charged, and sufficient of itself to defeat the claim of the appellee? I am much inclined to think it would ; and, therefore, had the appel- lant exhibited a deed from William Armistead to John B. Armistead, and from the latter to him for the 513 acres mentioned in the argu- ment, although there is no denial of notice as to it, I should, as at present advised, have thought that the appellee could not have re- covered that tract, without amending his bill, and putting the fact of notice or fraud in issue ; so as to give the appellant an opportunity of answering thereto. It is, however, not necessary to decide this point, because the appellant does not show himself to be a subsequent purchaser of that tract, and it is only against such that the mortgage is void. Whether, as this is an interlocutory decree, he may hereafter be permitted to file those documents, if they exist, is not for me to know or anticipate. On the record, now before the court, the decree must be reversed as to the 151 acres, and affirmed as to the residue. Judge Brooke concurred : and a decree was entered conformable to the foregoing principles.^ 1 " It is only by actual notice clearly proved that a registered convey- ance can be postponed. Even a Us -pendens is not deemed notice for that purpose." Per Sir William Grant, M. R., in Wyatt v. Barwcll, 19 Ves. 435, 439. Accord, Douglass v. McCrackin, 52 Ga. 596; M'Cutchen v. Miller, 31 Miss. 65, 85. Compare Edwards v. Banksmith, 35 Ga. 213; Grant v. Bennett, 96 111. 513; Smith v. Hodsdon, 78 Me. 180; Jackson d. Hendricks v. Andrews, 7 Wend. (N. Y.) 152. On the application of the doctrine of lis -pendens to chattels personal, see Boiling v. Carter, 9 Ala. 921; McDermot v. Hayes, 175 Cal. 95; State v. SECT. IV] BOARD OF EDUCATION V. HUGHES 737 SECTION IV EEGISTKATION ^•0T IX CHAIN OF TITLE BOARD OF EDUCATION OF MIXXEAPOLIS v. HUGHES AND Others 118 Minn. 404. 1912. Action in the district court for Hennepin county to determine ad- verse claims to a certain city lot. The answer alleged tliat Lucius A. Hughes was the sole owner and plaintiff had no right in or title to the lot. The reply alleged that the deed of Hughes was delivered with the name of the grantee left blank, was invalid and conveyed no title, and plaintiff had no notice of the deed until December, 1910. The case was tried before Hale, J., who made findings and as con- clusion of law ordered judgment in favor of plaintiff. From an order denying their motion for a new trial, defendants appealed. Reversed and noAV trial granted. BuNN, J. Action to determine adverse claims to a lot in Min- neapolis. The complaint alleged that plaintiff owned the lot, and the answer denied this, and alleged title in defendant L. A. Hughes. The trial resulted in a decision in favor of plaintiff, and defend- ants appealed from an order denying a new trial. The facts are not in controversy and are as follows: On May 16, 1906, Carrie B. Hoerger, a resident of Faribault, owned the lot in question, which Avas vacant and subject to unpaid delinquent taxes. Defendant L. A. Hughes offered to pay $25 for this lot. His offer was accepted, and he sent his check for the purchase price of this and two other lots bought at the same time to Ed. Hoerger, husband of the owner, together with a deed to be executed and returned. The name of the grantee in the deed was not inserted; the space for the same being left blank. It was executed and acknowledged by Carrie B. Hoerger and her husband on May 17, 1906, and delivered to de- fendant Hughes by mail. The check was retained and cashed. Hughes filled in the name of the grantee, 'but not until shortly prior to the date when the deed was recor(h'?t which was December 16, 1910. On April 27, 1909, Duryea &: Wilson, real estate dealers, paid Mrs. Hoerger $25 for a quitclaim deed to the lot, which was exe- cuted and delivered to them, but which was not recorded until De- cember 21, 1910. On November 19, 1909, Duryea &- Wilson executed Wichita County, 59 Kan. 512; Mabre v. }[ahcc, 85 N. J. Eq. 353. 358; Smith V. Curreathers Co., 184 Pac. (Okla.) 102; Pope v. Beau-champ, 110 Tex. 271; Wigram v. Buckley, [1894] 3 Ch. 483. The whole doctrine of Us pendens is frequcntlv regulated bv statute. Mass. Gen. Laws (1921), C. 184. §§ 15-17; St. 2 & 3 Vict., C 11, § 7; 2 Pomeroy, Equity Jur., 4tli cd., §§ 640-643. 738 VAN RENSSELAER V. CLARK [CHAP. XI and delivered to plaintiff a warranty deed to the lot, which deed was filed for record January 27, 1910. It thus appears that the deed to Hughes was recorded before the deed to Duryea & Wilson, though the deed from them to plaintiff was recorded before the deed to defendant. The questions for our consideration may be thus stated: (1) Did the deed from Hoerger to Hughes ever become operative? (2) If so, is he a subsequent purchaser whose deed was first duly recorded, within the language of the recording act? 1. . . . Our conclusion ^ is, therefore, that the deed to Hughes became operative as a conveyance when he inserted his name as grantee. 2. When the Hughes deed was recorded, there was of record a deed to the lot from Duryea & Wilson to plaintiff, but no record showing that Duryea & Wilson had any title to convey. The deed to them from the common grantor had not been recorded. We hold that this record of a deed from an apparent stranger to the title was not notice to Hughes of the prior unrecorded conveyance by his grantor. He was a subsequent purchaser in good faith for a valuable consideration, whose conveyance was first duly recorded; that is, Hughes' conveyance dates from the time when he filled the blank space, which was after the deed from his grantor to Duryea & Wilson. He was, therefore, a " subsequent purchaser," and is protected by the recording of his deed before the prior deed was recorded. The statute cannot be construed so as to give priority to a deed recorded before, which shows no conveyance from a record owner. It was necessary, not only that the deed to plaintiff should be recorded before the deed to Hughes, but also that the deed to plaintiff's grantor should be first recorded. Webb, Record of Title, § 158; 3 Wash- burn, Real Property, 292; Losey v. Simpson, 11 ]^. J. Eq. 246; Burhe v. Beveridge, 15 Minn. 160 (205); Schoch v. BirdsaU, 48 Minn. 443, 51 N. V. 382. Our conclusion is that the learned trial court should have held on the evidence that defendant L. A. Hughes was the owner of the lot. Order reversed, and new trial granted. - VAN RENSSELAER and Others v. CLARK. 17 Wend. (N. Y.) 25. 1837. This was an action of ejectment, tried at the Tompkins Circuit in June, 1835, before the Hon. Robert MoncJl, one of the Circuit judges. The plaintiffs showed title in one Derick Schuyler, to lots Xo. 57 and 58 — Ulysses, in the military tract, containing 1,200 acres of 1 The opinion on this point is omitted. 2 See Tenn. Co. v. Gardner, 131 Ala. 599; Ora v. Bane, 92 Kan. 567. SECT. IV] VAN RENSSELAER V. CLARK 739 land and a deed from Schuyler to James Van Rensselaer, the father of the plaintifi's, bearing date 25th August, 1794, conveying the two lots for the consideration of fifty dollars; which deed was recorded in the County of Cayuga, 2d January, 1804. The plaintiffs did not prove that the deed was deposited according to the requirement of the Act of 1794. Previoius to the deed from Schuyler to Van Rens- selaer being recorded, to wit, on the 2d July, 1799, Derick Schuyler for the consideration of $1000, conveyed the same lots to one Philip H. Schuyler, who procured his deed to be recorded on the 25th Octo- ber, 1802, and on 2d April, 1805, conveyed lot No. 57 to one Samuel Clark for the consideration of .$1300. Clark in 1806, conveyed to James Emott for the consideration of $2500, and Emott in 1833, conveyed to Mathias Miller for the consideration of $10,233.43. The premises in question, are part of lot No. 57, and at tlie com- mencement of the suit, were in possession of the defendant as the tenant of Miller. It was proved that Philip H. Schuyler at the time of the conveyance to him, had actual notice of the deed to Van Rensselaer; this evidence was objected to but received by the judge, who charged the jury that Philip H. Schuyler was not a bona fide purchaser and his deed was void, notwithstanding it was first recorded, if at the time he took his conveyance he had knowledge or had notice of the previous deed to Van Rensselaer; and that the record of the deed to Van Rensselaer was sufficient notice to sub- sequent purchasers and rendered void the conveyances to them. The defendant excepted to the charge, and the jury found for the plain- tiffs. The defendant moves for a new trial. By the Court, Cowen, J. The question of knowledge in Philip II. Schuyler was put to the jury, who found for the plaintiffs as they were directed to do by the judge, on being satisfied that he had actual notice of the prior deed. Their finding is fully sustained by the evidence. The defendant moves for a new trial on the ground that James Van Rensselaer's deed, not being deposited as required by the Statute, was fraudulent and void as against P. H. Schuyler, though he had full notice. To this the answer is, the Act applies only to such deeds as were dated prior to its passage, which was on the 8th January, 1794. Van Rensselaer's deed was dated in August of that year. The Statute of 8th January, 1794, after reciting that many frauds had been committed in respect to these bounty lands, by forging and ante- dating conveyances of lands to different persons, and various other contrivances, so that it had become difficult. to discover the legal title; for remedy whereof and in order to detect the said frauds and to prevent like frauds in future, enacted, by § 1, that all deeds, &c. theretofore made concerning such lands should, on or before the 1st of May, 1794, be deposited with the clerk of the city and county of Albany; and that those not so deposited should be adjudged fraudu- lent and void against the subsequent purchaser, &c. for valuable con- 740 VAN RENSSELAER V. CLARK [CHAP. XI sideration; and that every deed, &c. thereafter to be made, &c. should be adjudged fraudulent and void as against any subsequent purchaser, &c. for valuable consideration, unless recorded by the clerk of Herki- mer County, before the recording of the deed, &c. of the subsequent purchaser. Other counties were afterwards substituted as places of registry. It is objected that Schuyler's deed was first recorded. The answer o-iven is, he had actual notice. of Van Rensselaer's deed, which was held sufficient as to him in Jackson, ex dem. Gilbert v. Burgott, 10 Johns. R. 457. The point was there very fully examined by Chief Justice Kent, who delivered the opinion of the court, and the import of the words purchaser for a valuable consideration was considered synonymous with bona fide purchaser. And it was held that actual notice takes away bona fides as effectually, under this Act, as under the General Registry Act. The position was never doubted as to the latter, and was so expressly adjudged in Jackson, ex dem. Merrich v. Post, 15 Wendell 588. The case of Jachson v. Burgott turned on the very points arising out of the identical Statute on which the titles of these parties depend. The court held, 1. that actual notice was equivalent to registry, and 2. that this was so as w^ell at law as in equity. That it is so in equity is admitted by the English courts in respect to the Middlesex Registry Act, 7 Anne, ch. 20, § 1, which was the model of this Military Registry Act; though the King's Bench in Doe ex dem. Robinson v. Allsop, 5 Barn. & Aid. 142, re- fused to import the equitable doctrine into a court of law. This is but little m-ore, probably, than a dispute about form; at any rate, it is enough for us to see that the contrary has been long settled in this court. But it is said that Clark bought of Schuyler on the faith of find- ing that his deed was first recorded, and that he shall not be holden to look farther, and run the hazard of actual notice to Schuyler. In Jachson ex dem. Merrick v. Post, it was held that the registry of a deed is notice to every one, from the time of its being recorded, even to a purchaser standing a second or farther remove from the common source of title. The same case held that, having such notice, the pur- chaser takes at the peril of his immediate grantor's title being im- peached by actual notice, though his deed was recorded previous to the adverse one. This, it is true, was under the General Registry Acts; but if the case of Jackson v. Burgott is to govern, the same rules apply to deeds of military bounty lands. That case holds, that actual notice is a substitute for registry. Under both Acts, to entitle the purchaser to protection he must be a bo7ia fide purchaser in the strict sense of the term. He must not have notice when he buys. If the registry be notice, it takes away bona fides. There is nothing to distinguish the two Acts in regard to the effect of registry. By both it is declared to be notice in much the same phraseology. Under the General Registry Act it is declared that every conveyance SECT. IVJ MORSE V. CURTIS 741 not recorded shall be void as against any subsequent purchaser in good faWi and for a valuable consideration, whose conveyance shall be first duly recorded. 1 R. S. 756, § 1. The Act in question, 3 R. S. 188, § 1, is, that it "shall be adjudged fraudulent and void as against any subsequent ■purchaser, &c. for valuable consideration." The condition of the subsequent purchaser, as being mediate or immediate from the common source of title, and his liability to be affected with notice, must be the same in both cases. The only question which can arise is in respect to the quality of his purchase, the first cited Statute demanding bona fides, the latter not doing so in terms. New trial denied} MORSE V. CURTIS 140 Mass. 112. 1885. Morton, C. J. This is a writ of entry. Both parties derive their title from one Hall. On August 8, 1872, Hall mortgaged the land to the demandant. On September 7, 1875, Hall mortgaged the land to one Clark, who had notice of the earlier mortgage. The mortgage to Clark was recorded on January 31, 1876. The mortgage to the demandant was recorded on September 8, 1876. On October 4, 1881, Clark assigned his mortgage to the tenant, who had no actual notice of the mortgage to the demandant. The question is which of these titles has priority. The same question was directly raised and adjudicated in the two cases of Connecticut v. Bradish, 14 Mass. 296, and Trull v.. Blgelow, 16 Mass. 406. These adjudications establish a rule of property which ought not to be unsettled, except for the strongest reasons. It is true, that, in the later case of Flynt v. Arnold, 2 Mot. 619, Chief Justice Shaw expresses his individual opinion against the soundness of these decisions; but in that case the judgment of the court was distinctly put upon another ground, and his r^marks can only be considered in the light of dicta, and not as overruling the earlier adjudications. Upon careful consideration, the reasons u])on which tlu^ onrlior cases were decided seem to us the more satisfactory, because they best follow the spirit of our registry laws and the practice of the profession under them. The earliest registry laws provided that no conveyance of land shall be good and effectual in law " against any other person or persons but the grantor or grantors, and their heirs only, unless the d(>ed or deeds thereof be acknowledged and recorded in manner aforesaid." St. 1783, c. 37, § 4. 1 Mahoney v. Middleton. 41 Cal. 41; Bni/lrs v. Yoinicj, m III. 127; Cook V. French. 96 Mich. 525; TFoor/.s v. Garnet t. 72 Miss. 78; /-'o/Va.w v. Pierce, 30 Wis. 443, accord. And see The W . B. Cole, 59 F. R. 182. 742 MORSE V. CURTIS [CHAP. XI Under this Statute, tlie court, at an early period, held that the recording was designed to take the place of the notorious act of livery of seisin; and that, though by the first deed the title passed out of the grantor, as against himself, yet he could, if such deed was not recorded, convey a good title to an innocent purchaser who re- ceived and recorded his deed. But the court also held that a prior unrecorded deed would be valid against a second purchaser who took his deed with a knowledge of the prior deed, thus engrafting an exception upon the Statute. Heading of Judge Trowbridge, 3 Mass. 575. Marshall v. Fish, 6 Mass. 24. This exception was adopted on the ground that it was a fraud in the second grantee to take a deed, if he had knowledge of the prior deed. As Chief Justice Shaw forcibly says, in Lawrence v. Stratton, 6 Cush. 163, the rule is " put upon the ground, that a party with such notice could not take a deed without fraud, the objection was not to the nature of the conveyance, but to the honesty of the taker ; and, therefore, if the estate had passed through such taker to a ho7ia fide purchaser, without fraud, the conveyance was held valid." This exception by judicial exposition was afterwards engrafted upon the Statutes, and somewhat extended, by the Legislature. Rev. Sts. c. 59, § 28 ; Gen. Sts. c. 89, § 3 ; Pub. Sts. c. 120, § 4. It is to be observed that, in each of these revisions, it is provided that an un- recorded prior deed is not valid against any persons except the grantor, his heirs and devisees, " and persons having actual notice " of it. The reason why the Statute requires actual notice to a second purchaser, in order to defeat his title, is apparent : its purpose is that his title shall not prevail against the prior deed, if he has been guilty of a fraud upon the first grantee; and he could not be guilty of such fraud, unless he had actual notice of the first deed. N"ow, in the case before us, it is found as a fact that the tenant had no actual knowledge of the prior mortgage to the demandant at the time he took his assignment from Clark; but it is contended that he had constructive notice, because the demandant's mortgage was recorded before such assignment. It was held in Connecticut v. Bradish, uhi supra, that such record was evidence of actual notice, but was not of itself enough to show actual notice, and to charge the assignee of the second deed with a fraud upon the holder of the first unrecorded deed. This seems to us to accord with the spirit of our registry laws, and with the uniform understanding of and practice under them by the profession. These laws not only provide that deeds must be recorded, but they also prescribe the method in which the records shall be kept and indexes prepared for public inspection and examination. Pub. Sts. c. 24, §§ 14-26. There are indexes of grantors and grantees, so that, in searching a title, the examiner is obliged to run down the list of grantors, or run backward through the list of grantees. If he can start with an owner who is known to have a good title, as, in the SECT. IV ] M^QUADE V. WILCOX 743 case at bar, lie could start with Hull, he is obliged to run through the index of grantors until he finds a conveyance by the owner of the land in question. After such conveyance, the former owner becomes a stranger to the title, and the examiner must follow down the name of the new owner to see if he has conveyed the land, and so on. It would be a hardship to require an examiner to follow in the indexes of grantors the names of every person who, at any time, through perhaps a long chain of title, Avas the owner of the land. We do not think this is the practical construction which lawyers and conveyancers have given to our registry laws. The incon- veniences of such a construction would be much greater than would be the inconvenience of requiring a person, who has neglected to re- cord his prior deed for a time, to record it, and to bring a bill in equity to set aside the subsequent deed, if it Avas taken in fraud of his rights. The better rule, and the one the least likely to create confusion of titles, seems to us to be, that, if a purchaser, upon examining the registry, find a conveyance from the owner of the land to his grantor, which gives him a perfect record title completed by what the law, at the time it is recorded, regards as equivalent to a livery of seisin, he is entitled to rely upon such record title, and is not obliged to search the records afterwards, in order to see if there has been any prior unrecorded deed of the original owner. This rule of property, established by the early case of Connecticut V. Bradish, ought not to be departed from, unless conclusive reasons therefor can be shown. We are therefore of opinion, that, in the case at bar, the tenant has the better title; and, according to the terms of the report, the verdict ordered for the demandant must be set aside, and a New trial granted} McQUADE ET Al. v. WILCOX et Al. 183 N. W. (Mich.) 771. 1921. Appeal from Circuit Court, Oakland County, in Clumccry; Frank L. Covert, Judge. Bill by George J. McQuade and others against Mary M. Wilcox and another. From <,lecree for plaintiffs, defendants appeal. Affirmed. Argued before Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, Sharpe, and Wiest, JJ. Fellows, J. In 1910 dcfcndnnt Mary ^lillington Wilcox was the owner of 105 acres of farm land lying along Woodward avenue at the 10-mile road. It was over in Oakland county an jiroper construction and meaning of the expression " subsequent purchasers and mortgagees in good faith," as used in these sections. 750 DAY AND DAY V. MUNSON, SPEAR ET AL. [CHAP. XI It is well settled, in New York, under a Statute substantially similar, and from which our own has been mainly copied, that to constitute "good faith" on the part of the subsequent mortgagee, there must be the absence of actual notice of the existence of the prior mortgage. And so it was held by this court, in Paine et al. v. Mason et al, 7 Ohio St. Kep. 198. In that case, it was also held, that constructive notice alone, of the prior mortgage, would not constitute mala fides on the part of the subsequent mortgagee; and that as against him, the priority of the first mortgage could not be retained, without refiling pursuant to Statute. That decision, unless overruled, must be fatal to the claim of the plaintiffs in this case. We are accordingly asked to reconsider the question thus decided, on the ground that the court, in that case, as- sumed, without full consideration, that the term " subsequent " in each of these sections had relation to the same thing; that is, to the time of the execution of the mortgage declared to be void; whereas the policy of the Statute requires the term " subsequent," in the fourth section of the Act, to be construed as relating to the expira- tion of the year within which the refiling is required. And in sup- port of this view, we are referred to the case of Meach v. Patchen, 4 Kernan 71, in which it was so held by the Court of Appeals of 'New York (Mitchell, J., dissenting). The decision of the majority of the court, in that case, is supported by reasoning, which is, certainly, not without force. But it is a construction given to the Statute after its adoption in this State, and in opposition to the opinion expressed by Justice Cowen, in Gregory v. Thomas, 20 Wend. 19, prior to the enactment of the Statute in this State. This latter opinion, it is true, was of an obiter character, but I am not aware of any New York decision to the contrary, prior to the enactment of our own Statute. Subsequent decisions, which could not have been before the mind of the Legislature, can throw no light on its intentions. Be- sides, the phraseology of the fourth section of the Statute of this State differs somewhat from that of the corresponding section in the New York Act, and is such that the term " subsequent," in the fourth section, cannot well be regarded as referring to any later point of time than the original filing of the mortgage. The language is, " Every mortgage so filed shall be void, as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith," roperty to the extent of the sum secured by the first mortgage; but he cannot legally say that, with respect to the second mortgagee, he has any paramount lien beyond this. ISTo additional burden can be put u])on the land to the detri- ment of the second mortgagee. If the judgment be for a sum greater than that secured by the first mortgage, then, by right of representa- tion, such judgment will constitute the first lien to the full extent, and no further, of the first mortgage; if it be for a less sum than 758 SAYRE V. HEWES [CHAP. XI the first mortgage, it will take precedence and consume the first mortgage to that extent only. It will be observed that by these adjustments the priority of the first mortgage, with regard to the second mortgage, will be exhausted, either partially or wholly, so that, to the extent of such exhaustion, it will be postponed to the second mortgage. The doctrine thus propounded is but the development of the prin- ciple maintained and acted an in Clement v. Kaighn, 2 McCart. 48. In that case there was a judgment without an execution; then a mortgage, and then judgments on which executions had been taken out. These latter judgments were entitled to precedence over the first, but were subordinate to the mortgage. Chancellor Green decided that the first judgment on the mortgaged premises, by reason of the failure to sue out execution upon it, should be postponed to the en- cumbrance of the junior judgments, and, as an inevitable consequence, that it should be postponed to the mortgage which was prior to the junior judgments, and whose priority w^as not to be affected by any laches of the holder of such prior judgment. In my opinion, the decree in this case should be modified so as to direct the payment of these encumbrances in this order, viz. : first, the judgment of Sayre to the amount secured by the first mortgage; second, the payment of the residue of such judgment and the second mortgage, pari passu, as they were concurrent liens, being entered on the same day; third, the payment of the first mortgage. DixoN, J., dissenting. I agree with the conclusions which the Vice-Chancellor has reached upon the facts. But I dissent from the legal rule by which he fixes the order of priority, for I do not think it necessary to advance the complainant Sayre to the front against everybody, in order to give him the full benefit of his superiority to Hoag. Nor do I assent to the rule laid down in the opinion just read, since I see no reason for regarding the complainant as substituted in the stead and rights of Hoag as against Fisher, merely because Hoag failed to comply with the registry laws. The effect of non-compliance with those laws is declared by themselves to be, not that the rights of him in default shall be transferred to the subsequent encum- brancers, but that his claim shall be void as to them. Therefore, if there be three encumbrancers, A, B and C, in the order of time, and A's lien be prior to B's, and B's to C's, but, for A's omission to properly register his lien, it is void as to C's, then the fund should be disposed of as follows : — 1. Deduct from the xvliole fund the amount of B's lien, and apply the balance to pay C. This gives C just what he would have if A had no existence. 2. Deduct from the whole fund the amount of A's lien, and apply the balance to pay B. This gives B what he is entitled to. SECT. V] NOTE ON THE TORRENS SYSTEM 759 3. The balance remaining after these payments are made to B and C is to be applied to A's lien. To illustrate : Suppose the fund to be $5,000 ; A's lien to be $3,000 ; B's lien to be $4,000, and C's lien to be $2,000. Then, C receives $5,000, less $4,000 = $1,000; B receives $5,000, less $3,000 = $2,000; A receives $5,000, less ($1,000 + $2,000), = $2,000. Or suppose the fund to be $5,000, and each of these encumbrances to be $5,000; then it will appear that A, the first in time, will take it all; since, except for the registry laws, he would clearly be entitled to it, and the registry laws simply prevent his taking anything by which C's security may be lessened. But C's security was nothing at the beginning, for B's prior lien covered the whole fund; and C, therefore, has no right by which A's claim can be impaired. Where B's and C's claims are concurrent in time and lien, but A is prior to B, and void as to C (as in the present case), the distribu- tion should be as follows : — 1. Divide the whole fund in the proportion of B's and C's claims, and give to C his proportion. Thus A is ignored in fixing C's rights. 2. Deduct from the whole fund the amount of A's lien, and apply the balance to B's claim. 3. The balance remaining after both payments goes to A. By applying these rules to the case before us, it will be seen that, in my judgment, Fisher alone is injured by the decree below; but as he is not a party to this appeal, the decree cannot be changed here for his sake, and therefore, I think, should be affirmed. For affirmance — Dixon — 1. For reversal — Beasley, C. J., Depue, Knapp, Magie, Pabker, Reed, Scudder, Van Syckel, Clement, Cole, Dodd, Green — 12. Note on the Torrens System. — "As distinguished from the system of re- cording; the evidences of title, considered in the preceding sections, South Australia in 1858 enacted, on the initiative of Sir Robert Torrens, a system, somewhat analogous to that of several continental countries, for the registra- tion of titles themselves. This Torrens System so-called was generally adopted in Australia and in varying forms is now in use in several of the United States and to a limited extent in England. The general purpose of the system is to facilitate the sale or pledge of lands by establishing and maintaining the title to each parcel registered so that its exact condition at any given time may be readily seen by reference to a single document of record. In this country the original registration is a voluntary' and judicial proceeding, either in the regular courts, as in Illinois, or in a special tribunal, as in Massachusetts. The statutes vary in detail.^ but in general provide a procedure as follows: An examination and report on the title by an official examiner; service of notice on all known parties in interest and service by publication on parties unknown; a hearing or trial of issues then presented; and a decree which shall be binding on all the world after a short period for appeal or review — thirty days in Massachusetts, sixty in Minnesota, two years in Illinois — which decree is the basis for the recording of a certificate of title and the delivery of a duplicate certificate to the petitioner. 760 NOTE ON THE TORRENS SYSTEM [CHAP. XI " ' The basic principle of this system is the registration of the title of land, instead of registering, as the old system requires, the evidences of such title. In the one case only the ultimate fact or conclusion that a certain named party has title to a particular tract of land is registered, and a certificate thereof delivered to him. In the other, the entire evidence, from which proposed purchasers must, at their peril, draw such conclusion, is registered. Necessarily the initial registration of title — that is, the conclusive establish- ment of a starting point binding upon all the world — must rest upon judicial proceedings.' Per Start, C. J., in State v. West jail, 85 Minn 437, 438 (1902). "All subsequent transfers or incumbrances, whether voluntary or involun- tary, are effected by the issue of a new certificate or by suitable notation upon the old certificate refening to the instruments of conveyance, which are filed but not spread upon the records. Any doubt as to the effect of a document of title presented for registration is settled by the court or its officials. In all cases the operative act as to title is that of registration and no title can be obtained by prescription or adverse possession. " Generally, by special assessment on each registration, a fund is provided from which any one improperly deprived of an interest in the land by the original registration or by subsequent transfer may obtain indemnity. " The constitutionality of the statutes in this country has not been passed upon by the Supreme Court of the United States, nor has the validity of many provisions been adjudicated in the State courts. The Illinois act of 1895 was declared unconstitutional by the State court because it delegated judicial functions to the register, a ministerial officer, in the determination of owner- ship of land on the initial registration. People v. Chase 165 111. 527 (1897). An amended law, passed in 1897, has been upheld as to this point and as to its general provisions. People v. Simon, 176 111. 165 (1898). An act passed in Ohio in 1896 was held invalid as permitting the taking of property without due process of law because no notice except by publication was re- quired except as to parties whom the applicant might choose to name in his petition. The provision for indemnity from an insurance fund was held not to be a valid substitute. State v. Gwilbert, 56 Oh. St. 575 (1897). The Massachusetts act of 1898 was upheld in a petition for a writ of prohibition by a majority of the court in Tyler v. Judges of the Court of Registration, 175 Mass. 71 (1900). The Supreme Court of the United States refused to take jurisdiction of the case on wi'it of error because it was not brought by one who had been deprived of property under the law. 179 U. S. 405 (1900). The general system as adopted in Minnesota has there been held constitutional. State V. Westfall, 85 Minn. 437 (1902)." 6 Gray, Cas. on Prop., 2d ed., pp. 380-381. See Drake v. Eraser, 179 N. W. (Neb.) 393. Compare Shevlin- Mathieu Lumber Co. v. Fogarty, 130 Minn. 456. " The Torrens System of land registration would seem to be an ideal method of securing stability in ownership of realty. The old system of recording merely transfers left, as every conveyancer knows, the security of land transactions often in doubt, and the purchaser at the mercy of some forgotten heir or neglected dower interest. All this is done away with by the decree of court, after due notice and other fomialities, declaring title to be in the registrant, and all other claims barred forever. The state, to be sure, ordinarily guarantees out of funds supplied by fees that claimants barred through negligence or omission of the registrar shall be indemnified. But such mistakes do not affect the title. " The expense of the system, however, renders resort to it bj' no means universal, and indeed for many titles it is unnecessary. It seems to be most serviceable in three classes of cases. First: Certain classes of city property which change hands frequently or are often mortgaged. The registered title passes easily from hand to hand, and also may be as liquid a security as a SECT. V] NOTE ON THE TORRENS SYSTEM 761 stock certificate. These titles it is cheaper ami more expedient to register, and thus to avoid the expense and delay of a new search by each careful pur- chaser who is unwilling to rely on any lawyer but his own. Second: Land constantly the prey of vague, shadowy claims of easements, such as the familiar local assertion of rights of way over seashore property to the ocean. By registration these incumbrances are dismissed or at least well defined. Third: Certain country property where it is desirable accurately to fix boundaries. Much of the work of the registrar lies here where, owing to the introduction of new linos of street railways or other improvement-s, land hitherto vacant and of little value has begun to sell by the foot instead of by the acre. Nevertheless, much land will not find its way to the registrar. — for instance, residential rural or urban property which seldom changes hands. Here it is cheaper and often as safe to rely on one's own lawj-er." 32 Harv. L. Rev. 297. CHAPTER XII ESTOPPEL BY DEED i LiTT. § 446. Also, these words which are commonly put in such releases, scilicet (quce quovismodo in futurum habere potero) are as voide in law; for no right passeth by a release, but the right which the releasor hath at the time of the release made. For if there be father and sonne, and the father be disseised, and the sonne (living his father) releaseth by his deed to the disseisor all the right which he hath or may have in the same tenements without clause of war- rantie, &c. and after the father dieth, &c. the sonne may lawfully enter upon the possession of the disseisor, for that hee had no right in the land in his father's life (pur ceo que il n'avoit droit en la terre en la vie son pier) but the right descended to him after the release made by the death of his father, &c. Co. Lit. 265 a. Wote, a man may have a present right, though it cannot take effect in possession, but in futuro. As hee that hath a right to a reversion or remainder, and such a right he that hath it may presently release. But here in the case which Littleton puts, where the sonne release in the life of his father, this release is void, because he hath no right at all at the time of the release made, but all the right was at that time in the father; but after the decease of the father, the sonne shall enter into the land against his owne release. The baron makes a lease for life and dieth, the release made by the wife of her dower to him in reversion is good, albeit shee hath no cause of action against him in prcesenti. " Without clause of ivarrantie." For if there bee a warrantie annexed to the release, then the sonne shall be barred. For albeit the release cannot barre the right for the cause aforesaid, yet the warranty m^y rebutt, and barre him and his heires of a future right which was not in him at that time: and the reason (which in all cases is to be sought out) wherefore a warrantie being a covenant reall should barre a future right, is for avoiding of circuitie of action (which is noffavoured in law) ; as he that made the warrantie should recover the land against the ter-tenant, and he by force of the war- rantie to have as much in value against the same person. 1 On the subject of this chapter see Rawle, Covenants for Title, 5th ed., c. 11. 762 DOE d. CHRISTMAS V. OLIVER 763 DOE d. CHRISTMxVS and Others v. OLIVER 10 B. & C. 181. 1829. Bayley, J.^ This case depended upon the effect of a fine levied hy a contingent remainder-man in fee. Ann Mary, the wife of Joseph Brooks Stephenson, was entitled to an estate in fee upon the contingency of her surviving Christian, the widow of Thoopliikis Holmes; and she and her husband conveyed the premises to Thomas Chandless for ninety-nine years, and levied a fine to support that conveyance. Christian, the widow, died, leaving Mrs. Stephenson living, so that the contingency upon which the limitation of the fee to Mrs. Stephenson depended, happened, and this ejectment was brought by the assignees of the executors of Thomas Chandless, in whom the term for ninety-nine years was vested. It was conceded upon the argument that the fine was binding upon Mr. and Mrs. Stephenson, and all who claimed under them by estoppel ; but it Avas insisted that such fine operated by way of estoppel only; that it there- fore only bound parties and privies, not strangers; that the defend- ant, not being proved to come in under Mr. and Mrs. Stephenson, was to be deemed not a privy, but a stranger; and that as to him, the estate was to be considered as still remaining in Mr. and Mrs. Stephenson. To support this position, the defendant relied upon the latter part of the judgment delivered by me in Doe dem. Brune v. Mariyn, 8 B. & C. 497; and that part of the judgment certainly countenances the defendant's argument here. The reasoning, how- ever, in that case, is founded upon the supposition that a fine by a contingent remainder-man operates by estoppel, and hy estoppel onh/; its operation by estoppel, which is indisputable, was sufficient for the purpose of that decision : whether it operated by estoppel only, or whether it had a further operation, was quite immaterial in that case; and the point did not there require that investigation, which the discussion in this case has made necessary. We have, therefore, given the point the further consideration it required, and are satis- fied upon the authorities, that a fine by a contingent remainder-man, though it operates by estoppel, does not operate by estoppel only, but that it has an ulterior operation when the contingency happens; that the estate which then becomes vested feeds the estoppel; and that the fine operates upon that estate, as though that estate had been vested in the cognizors at the time the fine was levied. In Rawlins Case, 4 Co. 52, Cartwright demised land, not his, to Weston for six years; Rawlins, who owned the land, demised it to Cartwright for twenty-one years; and Cartwright re-demised it to Rawlins for ten ; and it was resolved that the lease by Cartwright, when he had nothing in the land, was good against him by conclusion; 1 The opinion only is given. 764 DOE d. CHRISTMAS V. OLIVER [CHAP. XII and when Rawlins re-demised to him, then was his interest hound by the conclusion; and when Cartwright re-demised to Rawlins, now was Rawlins concluded also. Rawlins, indeed, is bound as privy, because he comes in under Cartwright; but the purpose for which I cite this case is, to show that as soon as Cartwright gets the land, his interest in it is bound. In Weale v. Lower, Poll. 54, a.d. 1672, Thomas, a contingent remainder-man in fee, leased to Grills for five hundred years, and levied a fine to Grills for five hundred years, and died. The contingency happened, and the remainder vested in the heir of Thomas, and whether this lease was good against the heir of Thomas was the question. It was debated before Hale, C. J., and his opinion was, that the fine did operate at first by conclusion, and passed no interest, but bound the heir of Thomas ; that the estate which came to the heir when the contingency happened fed the estoppel ; and then the estate by estoppel became an estate in interest, and of the same effect as if the contingency had happened before the fine was levied ; and he cited Rawlins's Case, 4 Coke, 53, in which it was held, that if a man leased land in which he had nothing, and afterwards bought the land, such lease would be good against him by conclusion, but nothing in interest till he bought the land ; but that as soon as he bought the land, it would become a lease in interest. The case Avas again argued before the Lord Chancellor, Lord C. J. Hale, Wild, Ellis, and Windham, Justices, and they all agreed that the fine at first inured by estoppel; but that when the remainder came to the conusor's heir, he should claim in nature of a descent, and therefore should be bound by the estoppel ; and then the estoppel was turned into an interest, and the cognizee had then an estate in the land. In Trevivan y. Lawrence, 6 Mod. 258 ; Ld. Raym. 1051, Lord Holt cites 39 Ass. 18, and speaks of an estoppel as running upon the land, and altering the interest of it, — as creating an in- terest in or working upon the estate of the land, and as running with the land to whoever takes it. In Vick v. Edwards, 3 P. Wms. 372 (1735), Lord Talbot must have considered a fine by a contingent remainder-man as having the double operation of estopping the conusors till the contingency happened, and then of passing the es- tate. In that case, lands were devised to A. and B. and the survivor of them, and the heirs of such survivor, in trust to sell : the master reported that they could not make a good title, because the fee would vest in neither till one died. On exceptions to the m^aster's report. Lord Talbot held, that a fine by the trustees would pass a good title to the purchaser by estoppel; for though the fee were in abeyance, it was certain one of the two trustees must be the survivor, and en- titled to the future interest; consequently, his heirs claiming under him would be estopped by reason of the fine of the ancestor to say, quod partes finis nihil hahuerunt, though he that levied the fine had at the time no right or title to the contingent fee. And the next day he cited Weale v. Lower. Now, whether Lord Talbot were right in RIGHT d. JEFFREYS V. BUCKNELL 765 treating the fee as in abeyance, and the limitation to the survivor and his heirs as a contingent remainder or not, it is evident he did so consider them; and he must have had the impression that the fine would have operated not by estoppel only, but by way of passing the estate to the purchaser, because, unless it had the latter operation as well as the former, it could not pass a good title to the purchaser. In Fearne, c. 6, § 5 (edit. 1820, p. 365), it is said, " we are to re- member, however, that a contingent remainder may, before it vests, be passed by fine by way of estoppel, so as to bind the interest which shall afterwards accrue by the contingency;" and after stating the facts in Weale v. Lower, he says, it was agreed that the contingent remainder descended to the conusor's heir; and though the fine operated at first by conclusion, and passed no interest, yet the estoppel hound the heir; and that upon the contingency, the estate by estoppel became an estate in interest, of the same effect as if the contingency had happened before the fine was levied. Upon these authorities we are of opinion that the fine in this case had a double operation, — that it bound Mr. and Mrs. Stephenson by estoppel or conclusion so long as the contingency continued; Iiut that when the contingency happened, the estate which devolved ujjon Mrs. Stephenson fed the estoppel; the estate created by tlie fine. l)y way of estoppel, ceased to be an estate by estoppel only, and became an interest, and gave Mr. Chandless, and those having right under him, exactly what he would have had, had the contingency happened before the fine was levied. Postea to the plaintiff} RIGHT d. JEFFREYS v. BUCKNELL axd Two Others 2 B. & Ad. 278. 1831. Tins case was argued (hii'ing the last term by Plail for tlic ]il;iiii- tiffs, and Preston for the defendants, before Lord Tkntkkdex. V. J., LiTTLEDALE, J., Taiinton, J., and Patteson, J. The facts of the case, the arguments urged, and the authorities citecl, are so fully stated and commented on in the judgment pronounced by the court that it is deemed unnecessary to detail tliem here. Cur. adv. ruU. Lord Te.nterden, 0. J., in the course of tliis term, delivered the judgment of the court : — This case came on upon a motion to enter a nonsuit. At the trial before the Lord Chief Justice Tindal. at the Summer Assizes for the County of Kent, 1S;]0, it :i|>i)c;irc(l tliat the iiction w:is brought to ^ On the transfrr of contingent roniaindrrs and contingent rxecutorv in- terests by estoppel, see Smith v. Carroll. 280 Til. 1.S7; DuBols v. JiKti/. 291 111. 340, 348; Kales, Estates and Future Interests, 2(1 eii., §§ 321. 480." 766 RIGHT d. JEFFREYS V. BUCKNELL [CHAP. XII recover two houses at Bromptou in the parish of Chatham. As to one the learned judge was of opinion, that the ejectment would not lie for want of a notice to quit. As to the other, there was a verdict for the lessors of the plaintiff, subject to leave to enter a nonsuit. The facts proved were, that Thomas Jarvis the elder, having con- tracted to purchase the premises, was let into possession by order of the Court of Chancery on the 29th of December, 1808; and being let into possession, but never Jiaving had any conveyance executed to him, he afterwards, on the 2d of October, 1820, devised them to his son and heir, Thomas Jarvis the younger. Upon his father's death the son entered, and on the 21st of January, 1823, he mortgaged the premises, by indentures of lease and release, to the lessors of the plaintiff. The lease and release were in the common form, excepting that in the latter there Avas a recital that the said Thomas Jarvis is legally or eqidtahly entitled to the several messuages or dwelling- houses conveyed, and in the covenant for title, the releasor cove- nanted that he is and standeth laAvfully or equitably, rightfully, absolutely, and solely seised in his demesne as of fee of and in, and otherwise well entitled to the said several messuages or dwelling- houses, &c. On the 1st and 2d of April, 1824, indentures of lease and release, under the contract of sale in 1808, were executed to Thomas Jarvis the younger, whereby he became seised of the legal estate in the premises, which he afterwards conveyed by mortgage, for a valuable consideration, to the defendant Henry Bucknell. There was no proof that Bucknell had any notice of the prior mort- gage, and upon his mortgage all the title-deeds were delivered to him. In this action, he had come in under the common rule, and defended as landlord; the other defendants were the tenants in possession. The question on which the court took time to consider was, whether the defendant, claiming under the mortgagor, Thomas Jarvis the younger, could set up as a defence against the lessors of the plaintiff, fhe legal estate acquired by him since their mortgage. And it has been argued for them that he, as representing the mortgagor, Thomas Jarvis, is estopped from doing so; and for this purpose, Co. Lit. 352 a; Lit. § 693; and the cases of Bensley v. Burdon, 2 Sim. & Stu. 519; Helps y. Hereford, 2 B. & A. 242; Goodtith v. Morse, 3 T. R. 365; Goodfitle v. Bailey, Cowp. 597; Goodtitle v. Morgan and Others, 1 T. E. 755; Doe d. Christmas v. Oliver, 10 B. & C. 181; Trevivan V. Laivrence, 1 Salk. 276; 2 Ld. Raym. 1048, s. c. ; and Taylor v. Needham, 2 Taunt. 278, were cited. Of these cases none are appli- cable to the point in question, except Good-title v. Morgan and Bensley v. Burdon (of which more presently), and Helps v. Hereford and Doe v. Oliver. The last two are cases of estoppels, arising out of fines levied before any interest vested; and there is no doubt that a fine may operate by way of estoppel, but the present is not the case of a fine. In § 693, Littleton, speaking with reference to the doctrine of remitter, says, " This is a remitter to him, if such taking RIGHT d. JEFFREYS V. BUCKXELL 767 of the estate be not by deed indented, or by matter of record, which shall conclude or estop him ; " and in Lord Coke's commentary on this passage, a deed indented is distinguished from a deed poll in this particular of remitter, for the deed poll is only the deed of the feoffor, donor, and lessor, but the deed indented is the deed of both parties, and, therefore, as well the taker as the giver is concluded. In 352 a. Lord Coke divides estoppels into three sorts, the second of which he thus defines : " By matter in writing, as hy deed indented, by making of an acquittance by deed indented or deed poll, by de- feasance by deed indented or deed poll." And there are many other authorities to show that estoppel may be by any indenture or deed poll. But upon this rule there are many qualifications and excep- tions engrafted. It is a rule, that an estoppel should be certain to every intent, and, therefore, if the thing be not precisely and directly alleged, or be mere matter of supposal, it shall not be an estoppel; nor shall a man be estopped where the truth appears by the same instrument, or that the grantor had nothing to grant, or only a possi- bility; Co. Lit. 352 b, where this case is put: ''An impropriation is made after the death of an incumbent, to a bishop and his succes- sors. The bishop, by indenture, demiseth the parsonage for forty years, to begin after the death of the incumbent. The dean and chapter confirmeth it. The incumbent dieth. This demise shall not conclude, for that it appeareth that he had nothing in the impropria- tion till after the death of the incumbent." This passage from Co. Lit. is adopted by Ch. B. Comyns in his Digest, Estoppel (E. 2). JSTow in the case at bar the very truth, that the mortgagor, Thomas Jarvis the younger, had only an equitable interest, is partly ad- mitted; for the recital states in the alternative, that he is lawfully or equitably entitled, and the covenant for title is to the same effect. At all events, there is in this recital a want of that certainty of allegation which is necessary to make it an estoppel. Lord Holt lays it down in Salter v. Kidley, 1 Show. 59, that general recital is not an estoppel, though a recital of a particular fact is. Aiul upon this the judgment of the Lord Chancellor in the recent case of Bcn^sley V. Burdon, which was relied upon by tlie counsel for the lessors of the plaintiff, proceeded. The deed of release in that case recited, that Francis Tweddle the younger was, subject to his father's life estate, seised or possessed of, or well entitled to, the lands and tenements thereinafter mentioned in reversion or remainder; and by the deed he granted and released this remainder, and covenanted that be was seised of it for an indefeasible estate of inheritance The present Master of the Kolls, then Vice-Chancellor, by whom this case was first decided, according to the report in 2 Sim. ed Avas void, it destroyed the defendant's title. He, therefore, clainunl, that as the absolute deed was execut(>d and delivered before the estate became 1 Later EnglLsh cases arc Sturgeon v. Wiugfirhl, 15 M. Sc W. 224; GtncraL Finance Co. v. Liberator Buildinc] Society, 10 Cli. D. 15; Poulton v. Moore, [1915] 1 K. B. 400. See Van Rensselaer v. Kearney, 11 How. (U. S.) 297, 322; Veve v. Sanchez, 226 U. S. 234; Pendill v. Society, '^5 Mich. 491; Ilaqensick v. Castor, 53 Neb. 495; Weaver v. Drake, 79 Okhi. 277; Flanary v. Kane, 102 Va. 547, 566. Compare Van Gilder v. BuUcn, 159 N. C. 291. 770 HOYT V. DIMON [CHAP. XII vested in the mortgagee, at law, the mortgage title was superseded; and that the defendant held possession, by virtue of the absolute deed only. It was also contended, that nothing passed to Norton, by the mort- gage deed of Austin Nichols, he having no interest in the land, at the time of the execution and delivery of the deed ; his right having been acquired subsequently, by the deed of Daniel Nichols. The court, in their charge, instructed the jury, that the only material fact for them to find, was, whether the mortgage deed from Austin Nichols to Norton, was fraudulent ; if so, that they must find their verdict for the plaintiff; if otherwise, that they must find for the defendant. The jury returned their verdict for the defendant : And the plaintiff moved for a new trial, on the ground of a mis- direction; which motion was reserved for the opinion of the nine judges. Baldwin, J. From the statement of this case, it is apparent, that the right of the plaintiff to recover, depends on his shewing, that no title was derived to the defendant, by either of the deeds. If either conveyed a valid title, the defendant was entitled to a verdict. As the jury found the mortgage deed not to be fraudulent, and thereupon, gave their verdict for the defendant, the plaintiff cannot claim a new trial, on the ground, that the last deed was not submitted to their consideration; nor on the ground, that the direction given them was incorrect, unless, the law be so, that the mortgage deed, though not fraudulent, was of no effect for want of title in the grantor, at the time of its execution, and could not be made valid by subsequent title; or that the mortgage title was destroyed, by the subsequent absolute deed. The court, when they charged the jury, must have considered the mortgage as legal and valid, unless made void, by the statute against fraudulent conveyances; which, as a question of fact, they submitted, with the evidence, to the jury. I am of the same opinion. It has been decided, in Connecticut, in conformity, I conceive, to the principles of the common law, that a grantor, with warranty, but without title, is estopped from denying his former title, or claim- ing under a subsequent one; and such covenants running with the land, this estoppel will affect and bind all those who claim under the grantor; of course, in this case, Austin Nichols, and the plaintiff, who claims under him, are estopped from setting up the subsequent title derived from Daniel Nichols, to defeat the mortgage deed. Town of Norwich v. Congden, 1 Root's Rep. 222 ; Co. Litt. 265 ; Trevivan V. Lawrence, 6 Mod. 258 ; s. c. Salk. Rep. 276; Palmer v. Ekins, 2 Ld. Raym. Rep. 1551. The subsequent title will thus inure to the benefit of the first grantee. The mortgage, then, is valid, unless defeated by the absolute deed from Austin Nichols to Philo Norton, the mort- gagee. This, it is claimed, absorbed the mortgage though void as to creditors, it being good between the parties. [The court held that BAXTER V. BRADBURY 771 the mortgage title was not destroyed by the subsequent absolute deed.] All the other Judges concurred in this opinion, except Edmond and Ingersoll, Js., who did not judge. New trial not to be granted.^ BAXTER V. BR.VDBURY 20 Maine 260. 1841. CovEXANT broken, for breach of the covenant of seisin in a deed of warranty from the defendant to the plaintiff, dated August 3d, 1835. In this deed many lots of land were conveyed, and several in Corinth were described. To prove the breach of the covenant declared on, the 1 The doctrine is established by numerous decisions in the United States that if A., having no title or an imperfect title, conveys to B., with covenant of general warrantj', and A. thereafter acquires title or perfects his title, such after-acquired title will inure to the benefit of B., and will be legally vested in B. forthwith without a second conveyance by A. The same effect has been given to other covenants. Thus to a covenant of special warranty. Kimball V. Blaisdell, 5 N. H. 533. But the after-acquired title- must come from a source covered by the covenant. Bennett v. Daris, 90 Me. 457; Hnzzcy v. Hefjernan, 143 Mass. 232; Bell v. Twilight, 26 N. H. 401. Of non-claim. Trull V. Eastman, 3 Met. (Mass.) 121; Garlick v. Pittsburg etc. Ry. Co., 67 Ohio St. 223. Contra, Pike v. Galvin, 29 Me. 183. See also Jackson v. Brndjord, 4 Wend. (N. Y.) 619. Of further assurance. Bennett v. Waller, 23 111. 97, 183. But see Hope v. Stone, 10 Minn. 141. Of right to convey. Foss V. Strachn, 42 N. H. 40. But compare Doane v. WiUcutl, 5 Gray (Mass.) 328. Of quiet enjoyment. Tully v. Taylor, 84 N. J. Eq. 459. It is frequently said that this effect is given to the covenants in order to avoid circuity of action, but such effect has been given, even though no suit could be brought against the grantor on the covenants. Thus of a con- veyance with covenants by a married woman. Hill v. West, 8 Ohio 222. 226 Contra, Jackson v. Vanderheydcn, 17 Johns. (N. Y.) 167. As to the effect of covenants in a conveyance by a State, see C oynmonwcalth v. Andre, 3 Pick. (Mass.) 224. And such effect has also been given to covenants where the grantor has been relieved from liability thereon by a discharge in bankiiiptcy, Bush v. Cooper, 18 How. (U. S.) 82; or by the statute of limitations. Cole v. Raymond, 9 Gray (Mass.) 217. But see Webber v. Webber, 6 Grcenl. (Me.) 127, 136-139. Compare Goodel v. Bennett, 22 Wis. 565. When the gi-antor conveys " his right, title and interest " by a quitclaim deed meaning to pass only his present interest, there is no estoppel preventing him from a.-;serting any after-acquired title. Vary v. Smith, 162 Ala. 457; King V. Booth, 94 Ark. 306; Little v. Eaton, 267 III. 623; Comstock v. Smith. 13 Pick. (Mass.) 116; Wight v. Shaw, 5 Cu.sh. (Mass.) 56; Miller v. Ewing, 6 Gush. (Mass.) 34; Ernst v. Ernst, 178 Mich. 100; Hohn v. Bidwell, 27 S. D. 249. Compare Bring v. Sirarm, 176 Iowa 153; Crcssey v. Cresset/. 215 Mass. 65, 67; Robinson Co. v. Do'w, !87 Pac. (Wvo.) 931. Contra,' Barada Co. V. Kcleher, 214 S. W. (Mo.) 961 ; Blackwcll v. Harrelson, 99 S. C. 264. See 35 L. R. A. N. s. 1182, note. Sale or a.ssignment of an expectancy by a prospective heir. Trull v. East- man, 3 Met. (Mass.) 121 ; .37 Am. Dec. 128 note; Blackwell v. Harrelson, 99 S. C. 572; 25 L. R. A. n. s. 436 note; L. R. A. 1917 C. 267 note. Compare Garrow v. Toxey, 188 Ala. 572. 772 BAXTER V. BRADBURY [CHAP. XII plaintiff read a deed of warranty from John Peck to Benjamin Joy, conveying the town of Corinth, with certain reservations, dated July 27th, 1799. The land in controversy was part of the land conveyed to Joy. The plaintiff proved the consideration paid for these lots, and there rested his case. The defendant then read a deed of mortgage, dated August 3d, 1835, from the plaintiff to him, of the same premises to secure the payment of certain notes; and a deed of quitclaim of the same premises from the plaintiff to Chester Baxter, dated July 31, 1837. To prove a seisin in the plaintiff, and also for the purpose of reducing the damages, the defendant offered in evidence a deed of quitclaim from Amos "Whitney to him of one of the lots, dated August 24, 1835, and the warranty deed of Thomas Whitten, dated the same day, of another lot, and offered evidence to show that the grantors were then in possession. To the introduction of this evidence the plain- tiff objected, and Emery, J., presiding at the trial, ruled it to be inadmissible, and rejected it. The defendant also offered the contract of Joy, dated in June, 1835, to convey certain of the lands in contro- versy to the defendant, and a deed of the same from the heirs of Joy, dated Oct. 20, 1837, after this action was commenced, but the judge rejected it. The defendant then offered to prove that the lots were of less value than the purchase-money. This evidence was rejected. A default was then entered by consent, and the damages assessed at the amount of the consideration and interest, under an agreement, that if in the opinion of the whole court, the evidence rejected should have been admitted, the default was to be taken off, and the action stand for trial. The opinion of the court was by Weston, C. J. It is assumed in argument that Amos Whitney and Thomas Whitten were seised of the lands described in their respective deeds to the defendant, dated August 24, 1835. The lands constitute a part of that, which is the subject-matter of this suit. These deeds, with the evidence of their seisin, were rejected as inadmissible, by the presiding judge at the trial. If this evidence could legally have any effect upon the right of the plaintiff to recover, or upon the measure of damages, it ought not to have been rejected. The rules, which have been established to determine the measure of damages, upon the breach of covenants in deeds for the conveyance of real estate, have been framed with a view to give the party entitled a fair indemnity for damage he has sustained. Thus if the covenant of seisin is broken, as thereby the title wholly fails, the law restores to the purchaser, the consideration paid, which is the agreed value of the land, with interest. But in this, as well as in other covenants, usual in the conveyance of real estate, if there exists facts and circumstances, which would render the application of the rule inequitable, they are to be taken into consideration by a jury. Leland v. Stone, 10 Mass. R. 459. The covenant was intended to secure to the plaintiff a legal BAXTER V. BRADBURY 773 seisin in the land conveyed. If it is broken and he fails of that seisin, he has a right to reclaim the purchase-money. But if in virtue of another covenant in the same deed, which was also taken to assure to him the subject-matter of the conveyance, he has obtained that seisin, it would be altogether inequitable that he should have the seisin, and be allowed besides to recover back the consideration paid for it. The rule as to the measure of damages for the breach of this covenant, which is just in its general application, could never be intended to apply to such a case. In Whiting v. Davey, 15 Pick. 428, it is strongly intimated by the court, that this rule may have exceptions, as it undoubtedly has. If Whitney and Whitten were seised, immediately upon the execu- tion of their deeds, which were executed a few days after tliat, upon which the plaintiff declares, their seisin at once inured and i)ass('d to him, in virtue of the covenant of general warranty in his deed. Somes V. Skinner, 3 Pick. 52. It has been insisted by the counsel for the plaintiff that this effect depends upon the election of the grantee, and that the plaintiff here would reject the title arising by estoppel. Pnt we are aware of no legal principle, which can sustain this position. In the case last cited, the court say, " that the general princii)le to be deduced from all the authorities is, that an instrument, Avliich legally creates an estoppel to a party undertaking to convey real estate, he having nothing in the estate at the time of the conveyance, but acquir- ing a title afterwards by descent or purchase, does in fact pass an interest and a title from the moment such estate comes to the grantor." The plaintiff by taking a general covenant of warranty, not only assented to, but secured and made available to himself, all the legal consequences, resulting from that covenant. Having therefore under his deed, before the commencement of the action, acquired the seisin, which it was the object of both covenants to secure, he could be entitled only to nominal damages, and in our judgment the evidence rejected was legally admissible. The estoppel, being part of the title, may be given in evidence, without being pleaded. Adains v. Barnes, 17 Mass. R. 365. Whether the seisin of "Whitney and Wliitten was defeasible or indefeasible, is not a question which can arise under this covenant, which operates only upon the actual seisin and does not assure the paramount title. The same course of reasoning, and the same authorities, whii-li justified the admission of the testimony rejected, required tliat th(> evidence of title derived by estoppel from Joy's heirs, should have been received. It has been objected, that these lands may Iinv(> ])een doviscd ])y Joy, which may have prevented a descent to the heirs. Put an estate in fee, upon the decease of the ancestor, is presumed to descend, in pursuance of the laws of inheritance, unless the descent is .shown to have been intercepted by a devise. By the convey nneo from Joy's heirs to the defendant, the plaintiff acquired not inily the seisin, but 774 BLANCH ARD V. ELLIS [CHAP. XII an indefeasible title. As, however, that was executed, since the commencement of the action, the plaintiff is entitled to nominal damages, and to nothing more, if he has not been disturbed in his possession; and judgment may be rendered for him therefor on the default, which has been entered. But if the actual seisin of "Whitney and Whitten is intended to be contested, or the plaintiff would show that he had been dispossessed, before his title by estoppel attached, the default must be taken off, and the action stand for trial.^ BLANCHAKD v, ELLIS and Another 1 Gray (Mass.) 195. 1854. Action of contract on the covenant against encumbrances, con- tained in a deed from the defendants to the plaintiff, dated the 9th of November, 1838, purporting to be made in consideration of the sum of $5,520, and to convey " one undivided quarter part of the east half of township numbered three in the eighth range of tOAvn- ships in the County of Penobscot and State of Maine," with the usual covenants of warranty. The declaration set forth the execu- tion and delivery of the deed; and then alleged that, at the date of the execution thereof, the land therein described was not free from encumbrances, but was under an attachment, made on the 18th of February, 1836, in an action brought by Wiggins Hill against James T. Hobart, then owner of the premises, and from whom the defend- ants derived their title; that in said action Hill, on the 6th of l^ovember, 1838, recovered judgment for the sum of $52,755.39; and on said judgment execution issued, and was duly levied upon said land on the 25th of December, 1838; and seisin and possession of said land was delivered to Hill, the judgment creditor, and received by him. Writ dated October 18th, 1851. At the trial before Bigeloiv, J., there w^as evidence tending to prove the facts stated in the declaration, and also the following facts: The amount of the execution was much greater than the value of the land levied upon, which was the whole of the east half of the township, of which the land conveyed to the plaintiff consti- tuted an undivided quarter part ; and by virtue of the levy the title to the east half of said township became absolutely vested in Hill in one year from the date of the levy; and he continued in posses- sion of the land levied upon until the 4th of December, 1848, when he made a deed to the defendants of the portion included in their deed to the plaintiff, expressed to be in consideration of $1,100, and with the usual covenants of warranty. In February, 1841, the de- fendants gave notice to the plaintiff of this failure of title, and 1 See McLennan v. Prentice, 85 Wis. 427, 433. BLANCHARD V. ELLIS 775 offered to transfer to him certain stock by way of indemnity for his loss. During the time that Hill remained in possession of said half township, he received the sum of four hundred dollars net for stump- age. The plaintiff offered no evidence, beyond what has already been stated, to show that the premises were more or less valuable than at the date of the deed from the defendants to him; or that any- thing had been realized or received therefrom, except said stumpage. The case was taken from the jury by consent of parties, and re- served for the consideration of the full court, Avith the agreement that if the court should be of opinion, upon the foregoing facts, that the plaintiff was ciititled to recover nominal damages only, judg- ment should be rendered in his favor for one dollar; to which should be added the sum of one hundred dollars, if the court should be of opinion that the plaintiff was entitled to any part of the stumpage received by Hill; and that if the court should be of opinion that the plaintiff" was entitled to recover any other or further damages, the case should be sent to a jury for trial and for the assessment of such damages, on principles to be determined by the court. Thomas, J. It is not doubted that the facts of this case establish a breach of the defendants' covenant ; but the question at issue be- tween the parties is as to the measure of damages. The defendants say, that a deed of the premises having been made to them by Hill, on the 4th of December, 1848, the title so conveyed to them inured, by way of estoppel, to the plaintiff, and is now in him, and that the only damages he can recover are nominal, or his quarter of the stumpage of the entire tract ; such stumpage constitut- ing the only rents and profits of the estate during the eviction of the plaintiff, or the difference, if any, between the value of the land at the time of the conveyance by the defendants to the ])laintiff, and its value at the time of the conveyance by Hill to the defendants. The general doctrine, on which the defendants rely, is quite familiar; that if A., having no title, make a deed of land to B., with full covenants of warranty, and A. subsequently acquire a title by descent or purchase, he is estopped by his covenants, as against his grantee, to deny that he had a good title at the time of his grant, and such new title is said to inure to his grantee. Strictly speaking, there would seem to be no transmutation of estate when the new title comes to the grantor. Nor is there any force in the original deed to convey a title not then existing in the grantor; for nothing can pass but his then existing title. But the grantor and those claiming under him are estopped to deny the validity of the title, which he has solemnly asserted, and to set u]) a title against it. The law presumes that he has spok(>n and acted according to the truth of the case, and will not permit him or those claiming under him to deny it. "The reasons," says Mr. Butler, in a note to Co. Lit. ;'r)2 a, "why estoppels are allowc^l, seem to be thes(> : 'N'o man ouirlit tn allege anything but the truth for his defence, and wliat lie lias allegi'd 776 BLANCH ARD V. ELLIS [CHAP. XII once is to be presumed true, and tlierefore he ought not to contra- dict it ; for, as it is said in the 4 Inst. 272, aUegans contraria non est audiendiis." It might be curious to trace the progress of this doc- trine of estoppel, as applicable to the covenant of warranty, from the simple rebutter of Lord Coke (Co. Lit. 265 a), which should bar a future right, to avoid a circuity of action, to its present condition, in which there is claimed for it the full force of a feoffment, or fine or common recovery at the common law ; that is, having the function of actually devesting the feoffor or conusor of any estate which he might thereafter acquire. But waiving, because not necessary to our purpose, the discussion of the origin and extent of the doctrine of estoppel, it will be sufficient to say that we do not feel called upon to extend its application; especially when such extension would tend to defeat the principle on which the doctrine of estoppel rests, which is the prevention of wrong and injustice. Supposing it to be well settled that, if a new title come to the grantor before the eviction of his grantee, it would inure to the grantee, and not deciding, because the case does not require it, whether the grantee, even after eviction, might elect to take such new title, and the grantor be estopped to deny it ; we place the de- cision of this case on this precise ground, that where a deed of land has been made with covenants of warranty, and the grantee has been wholly evicted from the premises by a title paramount, the grantor cannot, after such entire eviction of the grantee, purchase the title paramount, and compel the grantee to take the same against his will, either in satisfaction of the covenant against encumbrances, or in mitigation of damages for the breach of it. We do not seek a better illustration of the soundness of this prin- ciple than is furnished by the facts of this case. The land, for which the consideration stated in the deed was $5,520, was under attach- ment in a suit in which judgment had been recovered for more than fifty thousand dollars ; the entire tract, of which one quarter had been conveyed to the plaintiff, was afterwards levied upon, seisin given to the creditor, and the plaintiff wholly evicted. He had no estate or interest left. The covenant against encumbrances being personal, and not running with the land, he had nothing which could pass by deed. He could not redeem his undivided quarter, w^ithout a redemp- tion of the entire estate. He could not, for a period of ten yeai's, enter upon the land, without committing a trespass. The defend- ants admit the existence of the title paramount, and the eviction of the plaintiff; but contend, after the eviction has continued ten years that they, as grantors, may avail themselves of this rule of estoppel, to force the grantee to take the estate, however changed the situation of his own affairs, or the condition of the land. So that the equi- table rule of estoppel, which forbids the grantor to deny that he had the estate which he had assumed to grant, and the truth of his own covenant — a rule established for the protection of the grantee, and BLANCHARD V. ELLIS 777 to be applied only to effect justice aud prevent wrong — is converted into a right of election in the grantor, upon a breach of his covenant, to pay back the consideration money, or by indirection to reconvey the estate. We say an election by the grantor; for it is clear that the grantee cannot compel the grantor to buy in the paramount title, but must rely solely upon his covenants. It is equally clear that, if the estate, during the eviction, should greatly increase in value, the grantor would not be likely to purchase such paramount title, but would submit to an action on his covenants. So that, under any rule of damages suggested, the plaintiff would lose many of the advan- tages resulting from the ownership of land, including the increase of value by the application of his own labor or capital, or its rise in the market. There is neither mutuality nor equity in such a rul(>. And we are satisfied, upon examination of the authorities, that no case will be found which carries the doctrine of estoppel to the length claimed by the defendants, which in fact estops the grantee, and leaves a right of election in the grantor. The case of Baxter v. Bradbury, 20 Maine 260, has been strongly pressed upon us as a de- cision of the very question at issue. If this were so, the question having reference to the title to land in that State, the decision, on that ground, as well from our respect for that court, would be en- titled to the highest consideration, if indeed it were not conclusive. Cut, though there are dicta in that case, which state the doctrine very broadly, the case itself differs materially from the one at bar. That was an action for a breach of the covenant of seisin in a deed of warranty, Avitli a mortgage back of the premises, of the same date, to the grantor. The ground, taken by the counsel of the defendant, and upon which the court seem to have proceeded in their judgment, Avas, that there never had been any interruption of the possession of the plaintiff. In seeking to deduce from that case a rule for our guidance, this circumstance must be deemed most material; as, for a breach of this covenant against encumbrances, nominal damages only could be recovered, unless the plaintiff had been evicted by title paramount, or had actually discharged the encumbrance. The court, in the case of Ba.nter v. Bradbury, refer to a statement of the result of the authorities by the late Chief Justice Parker in the case of Somes v. Skinner, 3 Pick. 52. An examination of the whole opinion in that case would lead us to infer that this statement was not made without some misgiving and distrust. The precise question now under consideration was not before the court, and what in that part of the case was decided was, that where a title has inured by estoppel, it will avail the grantee, not oi\ly against the grantor and his heirs, but strangers, who usurp possession without right; and under the facts of the case, and in the view in which it was applied, there is no occasion to reconsider the rule there stated. The case of Cornell v. Jacl-son. 3 Oush. 506, Avas an action upon the covenant of seisin. An action had before been brouglit upon 778 BLANCH ARD V. ELLIS [CHAP. XII the covenant of warranty, in which there was a judgment for the defendant. 9 Met. 150. The defendant had conveyed land to the plaintiff, bounded on land of Tuckerman; a conventional line had been fixed by parol agreement between the defendant and Tucker- man; and they had occupied according to that conventional line; but the court, in the action on the covenant of warranty, held that the true line, and not the conventional line, was the boundary re- ferred to in the defendant's deed. An action was then brought on the covenant of seisin; and the possession of land by Tuckerman between the true line and the conventional line, being under a claim of title, was held to be a breach of the covenant of seisin. In the assessment of damages, it appeared that a portion of the land had been recovered by the defendant of the heirs of Tuckerman; and the report of the assessor submitted the question, whether the value of the land so recovered should be included in his assessment. The court said : " If, by any means, the party is restored to his land before the assessment of damages, though it cannot purge the breach of covenant, it will reduce the damages pro tanto." In that case the title was in the grantor at the time of the deed, and he might have made a valid conveyance but for the disseisin; and what the court decided was, that if he subsequently regained the seisin, and the land was restored to the grantee, it would proportionally reduce his damages. Upon examination of the authorities, we think no decision will be found to be in conflict with the point now decided, or which leads to the result claimed by the defence. There are dicta which, taken out from their connection with the facts, in relation to which they are made, and by which their soundness must always be tested, might tend to a different conclusion ; but no precedent has so extended the doctrine of estoppel, and we do not feel willing to make one. The question of course arises, How will the defendants, the grantors, be protected? Will they not be still estopped to deny the title of the plaintiff, if he should bring his writ of entry for the land? The answer is, that the judgment in this suit will be a per- fect bar to the plaintiff and those claiming under him. Porter v. Hill 9 Mass. 34. With regard to the rule of damages, there can be no serious con- troversy, if the plaintiff has gained no title by estoppel; the plain- tiff will be entitled to the consideration money and interest. The consideration expressed in the deed is prima facie the true one, but liable to be controverted by evidence. The case must be sent to a jury to ascertain the damages under this rule.^ 1 Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131 ; Jones V. Gallegher, 54 Okla. 611, aceord. In Resser v. Carney, 52 Minn. 397, A., having no title, purported to con- vey land to B., with covenants of seisin and waiTanty. B. brought suit on BLANCHARD V. ELLIS 779 the covenant of seisin. After suit brought A. bought in the title and urged that B. was compelled to accept such title. The land was vacant at the time of A.'s deed and had at all times continued vacant. The court said, page 402: " Upon the cjuestion thus presented, the law cannot be said to be settled. In support, wholly or to some extent, of the proposition that a title acquired by the grantor subsequent to the conveyance by him inures by operation of law to his grantee, even though he is unwilling then to accept it, and hence will mitigate the damages recoverable for breach of covenant, or wholly de- feat an action for damages, according to the circumstances of the case, may be cited Baxter v. Bradbury, 20 Me. 260; King v. Gilson's Adm'x, 32 111. 348; Reese v. Smith, 12 Mo. 344; Morrison v. Underwood, 20 N. H. 369; Knowles V. Kennedy, 82 Pa. St. 445; Farmers' Bank v. Glenn, 68 N. C. 35; Ccfrnell v. Jackson, 3 Cush. 506; Boulter v. Hamilton, 15 U. C. C. P. 125, citing Doe v. Webster, 2 U. C. Q. B. 225. See, also. Knight v. Thayer, 125 Mass. 25. In some of these cases, however, it may be noticed that the plain- tiff was in possession of the granted lands tmder his deed. " On the contrary', the doctrine is well supported by authority that a grantee to whom no title passed by the deed of conveyance, who acquired no possession, and no right of possession, may recover the purchase money paid, with interest, in an action for a breach of the covenant of sei.sin, even though the grantor may have acquired a title during the pendency of such an action, or, perhaps, even prior to its commencement ; that the grantee is not to be compelled to accept the after-acquired title in satisfaction of the already-broken covenant of seisin, or in mitigation of damages recoverable for the breach. Blanchard v. Ellis, 1 Gray 195; Tucker v. Clark, 2 Sandf. Ch. 96; Bingham v. Wciderwax, 1 N. Y. 509; Nichol v. Alexander, 28 Wis. 118; Mclnnis v. Lyman, 62 Wis. 191, (22 N. W. Rep. 405); Burton v. Reeds, 20 Ind. 87, 93; Rawle, Gov. §§ 179-182, 256-258, 264, 265; Bigelow, Estop. 440: Sedg. & W. Tr. Title Land, § 850. While in some of the cases last cited there had been an eviction of the covenantee after he had been in possession, that would not distinguish such cases from that now before us. The inability of the plaintiffs to enter into possession of this vacant land without committing a trespass, by reason of the paramount title being in another, would have the same effect, as respects the right of action for a breach of the co\'cnants contained in the deed, as would an eviction if possession had been acquired. Fritz V. Pusey, 31 Minn. 368, (18 N. W. Rep. 94) ; Shattuck v. Lamb. 65 X. Y. 499. " To our minds the authorities last cited present the view of the law mo.-^t consistent with rea.son and with familiar legal principles, as well as the rule most conducive to justice, in its practical application. " It is certain, if the defendant's deed conveyed no title, that the plaintiffs had a legal right, when this action was commenced, to recover the purchase price paid for a title. They elected to pursue that remedy, and .>manded premises to the tenant in fee. And it was held that Weston, by his deed and covenant (although it was not of general warranty, as is the case at bar) was estopped to make any claim or title to the land, 782 WHITE V. PATTEN [CHAP. XII and that the tenant, claiming subsequently under "Weston, was privy in estate and bound by the estoppel. The case of Weale v. Lower, Pollexfen, 60, is to the same point. Where one conveyed by a fine an estate which at the time was con- tingent, yet the party conveying was bound by estoppel, and when the contingency happened, that " which at the beginning was only good against him by estoppel would then have been turned into a good estate and term in interest." And p. 66, per Lord Chief Jus- tice Hale : " The estate which cometh to the heir upon the happen- ing of the contingency, feeds his estoppel, and the estate by estoppel becometh an estate in interest, and shall be of the same effect as if the contingency had happened before the fine levied." So in the case at bar, Thayer and his heirs and assigns are bound by his deed with warranty to White. The tenant claims the same estate as the assignee or grantee of Thayer by a subsequent convey- ance, and the tenant is concluded, as his grantor was concluded, to •aver that Thayer had no title when he conveyed to White. The tenant is privy in estate. Co. Lit. 352 a. Privies in blood, as the heir, privies in estate, as the feoifee, lessee, &c., privies in law, comprehending those who come in by act in law or in the post, shall be bound and take advantage of estoppels. Termes de la Ley, Privy. " The lessees or feoffees are called pri- vies in estate, and so are their heirs." The conveyance of the title by the deed of Perry to Thayer, after his deed to White, turned the estoppel which bound Thayer and his heirs and assigns, into a good estate in interest. So that by the operation of law the interest should be considered as vested in him in the same manner as if it had been conveyed to Thayer before he conveyed to White. And if that had been the case there could be no question between these parties now before the court. For White procured his deed from Thayer to be recorded before the tenant obtained his deed from Thayer. It would be very easy to multiply authorities in support of the principle upon which this case is decided, but it is not necessary. The court are of opinion, for the reasons and upon the authorities before referred to, and cited by the counsel for the demandant, that he is entitled to recover.^ 1 Tejft V. Munson, 57 N. Y. 97; McCusker v. McEvey, 9 R. I. 528. 10 R. I. 606; Jarvis v. Aikens, 25 Vt. 635, accord. See Hodges v. Goodspeed, 20 R. I. 537. Contra, Wheeler v. Young, 76 Conn. 44; Calder v. Chapman, 52 Pa. 359; Breen v. Morehead, 104 Tex. 254. See Way v. Arnold, 18 Ga. 181 ; Morrison V. Caldwell, 5 T. B. Men. (Ky.) 426. 433-434; Ford v. Unity Society, 120 Mo. 498; Richardson v. Lumber Co., 93 S. C. 254. Compare Balch v. Arnold, 9 Wyo. 17, 37-39 (under system of recording in western states). In the following cases the grantee under a deed by a grantor having no AYER V. PHILA. & BOSTON FACE BRICK CO. 783 AYEK V. PHILADELPHIA a.xd BOSTOX FACE BRICK COMPANY 159 Mass. 84. 1893. Wbit of entry to foreclose a mortgage.^ One "Waterman made a first mortgage and later a .second mortgage. The first was foreclosed, and the land sub.sequently was reconveved to him. Then the holder of the second mortgage conveyed to a third person who conveyed to the demandant. The tenant is a grantee under Waterman. In the granting part of this second mortgage the land is stated to be " conveyed subject " to a certain right of drain- age, a certain easement, " and the mortgage hereinafter named." The covenants are as follows: "And I, the said grantor, for myself and my heirs, executors, and administrators, do covenant Avith the said grantees and their heirs and assigns, that I am lawfully seised in fee simple of the aforegranted premises; that they are free from all encumbrances, except a certain mortgage given by me to the Boston Five Cents Savings Bank, dated March 1, 1872, to secure the sum of forty thousand dollars, the right of drainage and the easement afore- said ; that I have good right to sell and convey the same to the said grantees, and their heirs and assigns forever, as aforesaid; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said grantees and their heirs and assigns for ever, against the lawful claims and demands of all persons, ex- cept the right of drainage and the easement aforesaid." Holmes, J. When this case was before us the first time, 157 Mass. 57, it was assumed by the tenant that the only question was whether the covenant of warranty in the second mortgage should be construed as warranting against the first mortgage. No attempt was made to deny that, if it was so construed, the title afterwards acquired by the mortgagor would inure to the benefit of the second mortgagee under the established American doctrine. The tenant now desires to reopen the agreed facts for the purpose of showing that after a breach of the covenant in the second mortgage, and before lie title was competing for the after-acquired title with judgment creditors of the grantor: Watkim^ v. T^^a^^s(7/, 15 Ark. 73; Blh^ v. Brotim, 78 Kan. 467; Callcgher v. Stem, 250 Pa. 292; Broim v. Barker, 35 Okla. 498; Blackwell v. Harrehoyi, 99 S. C. 264. A without title gives a warranty deed to B. C, the tnie owTier, later sells the land to A and takes back from A at the ?ame time a mortgage without notice of B's deed. C prevails over B. Haxlam v. Jnrdnti. 104 Me. 49; Hefjron v. Flanigan, 37 Mich. 274; Schoch v. Birdsall. 48 Minn. 441. ^ The statement of facts is taken from the oiiinion of Holmes. ./.. in the same case when before the covu-t for the fir.>^t time as reported in 157 Mass. 57. The court then held, that the covenant of warranty made by Waterman in his second mortgage covered the existing first mortgage. 784 AVER V. PHILA. & BOSTON FACE BRICK CO. [CHAP. XII repurchased the land, the mortgagor went into bankruptcy and got his discharge. The judge below ruled that the discharge was im- material, and for that reason alone declined to reopen the agreed statement, and the case comes before us upon an exception to that ruling. The tenant's counsel frankly avow their own opinion that the dis- charge in bankruptcy makes no difference. But they say that the inuring of an after acquired titje by virtue of a covenant of warranty must be due either to a representation or to a promise contained in the covenant, and that if it is due to the former, which they deem the correct doctrine, then they are entitled to judgment on the agreed statement of facts as it stands, on the ground that there can be no estoppel by an instrument when the truth appears on the face of it, and that in this case the deed showed that the grantor was convey- ing land subject to a mortgage. If, however, contrary to their opinion, the title inures by reason of the promise in the covenant, or to prevent circuity of action, then they say the provision is dis- charged by the discharge in bankruptcy. HoAvever anomalous what we have called the American doctrine may be, as argued by Mr. Rawle and others (Eawle on Covenants, 5th ed., §§ 247 et seq.), it is settled in this State as well as elsewhere. It is settled also that a discharge in bankruptcy has no effect on this operation of the covenant of warranty in an ordinary deed where the warranty is coextensive with the grant. Bush v. Cooper, 18 How. 82; Buss v. Alpaugh, 118 Mass. 369, 376; Gihhs v. Thayer, 6 Cush. 30; Cole v. Raymond, 9 Gray 217; Rawle on Covenants, (5th ed.,) § 251. It would be to introduce further technicality into an artificial doctrine if a different rule should be applied where the conveyance is of land subject to a mortgage against which the grantor covenants to warrant and defend. No reason has been offered for such a distinction, nor do we perceive any. But it is said that the operation of the covenant must be rested on some general principle, and cannot be left to stand simply as an unjustified peculiarity of a particular transaction without analogies elsewhere in the law, and that this general principle can be found only in the doctrine of estoppel by representation, if it is held, as the cases cited and many others show, that the estoppel does not de- pend on personal liability for damages. Rawle on Covenants, (5th ed.) § 251. If the American rule is an anomaly, it gains no strength by being referred to a principle which does not justify it in fact and by sound reasoning. The title may be said to inure by way of estoppel when explaining the reason why a discharge in bankruptcy does not affect this operation of the warranty; but if so, the existence of the estoppel does not rest on the prevention of fraud or on the fact of a represen- tation actually believed to be true. It is a technical effect of a technical representation, the extent of Avhich is determined by the AYER V. PHILA. & BOSTON FACE BRICK CO. 785 scope of the words devoted to making it. A subsequent title would inure to the grantee when the grant Avas of an unencumbered fee although the parties agreed by parol that there was a mortgage out- standing; {Chamberlain v. Meeder, 16 N. H. 381, 384; see Jenkins V. Collard, 145 TJ. S. 546, 560;) and this shoAvs that the estoppel is determined by the scope of the conventional assertion, not by any question of fraud or of actual belief. But the scope of the conven- tional assertion is determined by the scope of the warranty which contains it. Usually the warranty is of what is granted, and there- fore the scope of it is determined by the scope of the description. But this is not necessarily so; and when the warranty says that the grantor is to be taken as assuring you that he owns and will defend you in the unencumbered fee, it does not matter that by the same deed he avows the assertion not to be the fact. The warranty is intended to fix the extent of responsibility assumed, and by that the grantor makes himself answerable for the fact being true. In short, if a man by a deed says, I hereby estop myself to deny a fact, it does not matter that he recites as a preliminary that the fact is not true. The diiference between a warranty and an ordinary statement in a deed is, that the operation and eifect of the latter depends on the whole context of the deed, whereas the warranty is put in for the express purpose of estopping the grantor to the extent of its words. The reason " why the estoppel should operate, is, that such was the obvious intention of the parties." Blal-e v. Tucker, 12 Vt. 39, 45. If a general covenant of warranty following a conveyance of only the grantor's right, title, and interest were made in such a form that it was construed as more extensive than the convej'-ance, there would be an estoppel coextensive with the covenant. See B I an chard v. Brooks, 12 Pick. 47, 66, 67; Bigelow, Estoppel, (5th ed.) 403. So in the case of a deed by an heir presumptive of his expectancy with a covenant of warranty. In this case, of course, there is no pretence that the grantor has a title coextensive with his warranty. Trull v. Eastman, 3 Met. 121, 124. In Lincoln v. Emerson, 108 "Mass. 87, a first mortgage was mentioned in the covenant against eiicumbi-ances in a second mortgage but was not excepted from the covenant of warranty. The title of the mortgagor under a foreclosure of the first mortgage was held to inure to an assignee of the second mortgage. Here the deed disclosed the truth, and foi- tlio purposes of the tfMianf's argument it cannot matter Avhat part of tlic deed discloses the truth, unless it should be suggested that a covcMiant of warranty cannot be made more extensive than the grant, which was held not to be the law ill our former decision. Sei^ also Calrcrl v. Schriqhi , l."> Beav. 156, 160.^ The question remains whether the tenant stainls l)etter as a jmr- chaser without actual notice, assuming tlial lie liad not actual notice of the second mortgage. 1 See Drury v. Holdcn, 121 111. 130; MrAdams v. BalUii. 169 Iiul 518; Koch V. Ilnxli^, 113 Wis. 604. 786 PERKINS V. COLEMAN [CHAP. XII " It has boon the settled law of this Commonwealth for nearly forty years, that, under a deed with covenants of warranty from one capable of executing it, a title afterwards acquired by the grantor inures by way of estoppel to the grantee, not only as against the grantor, but also as against one holding by descent or grant from him after acquiring the new title. Somes v. Skinner, 3 Pick. 52- White V. Patten, 24 Pick. 324; Russ v. Alpaugh, 118 Mass. 369, 376'. We are aware that this rule,, especially as applied to subsequent grantees, while followed in some States, has been criticised in others. See Eawle on Covenants, (4th ed.) 427 et seq. But it has been too long established and acted on in Massachusetts to be changed, except by legislation." Knight v. Thayer, 125 Mass. 25, 27. See Powers V. Patten, 71 Maine, 583, 587, 589; McCusker v. McEvey, 9 K. I. 528 ; Teift v. Munson, 57 N". Y. %1} It is urged for the tenant that this rule should not be extended. But if it is a bad rule, that is no reason for making a bad exception to it. As the title would have inured as against a subsequent pur- chaser from the mortgagor had his deed made no mention of the mortgage, and as by our decision his covenant of warranty operates by way of estoppel notwithstanding the mention of the mortgage, no intelligible reason can be stated why the estoppel should bind a purchaser without actual notice in the former case, and not bind him in the latter. Upon the whole case, we are of opinion that the demandant is en- titled to judgment. Our conclusion is in accord with the decision in a very similar case in Minnesota. Sandwich Manuf. Co. v. Zellmer, 48 Minn. 408. , . Exceptions overruled.'^ PEEKINS V. COLEMAN" 90 Ky. 611. 1890. Judge Bennett delivered the opinion of the court. W. G. Terry owned an undivided interest in the laud in contro- versy, and conveyed the whole of it to Horace Dunham by deed of general warranty. Thereafter Terry inherited that part of the land 1 In Philly v. Sanders, 11 Ohio St. 490, 496, the court said: " The force and effect of the estoppel is, in law, just as binding upon a subsequent grantee as it is upon the grantor; and upon either it is equally obligatory with the lan- guage of the deed creating the first grant, or conveyance. An obligation of estoppel binds not only the grantor in such a case, but his heirs and sub- sequent grantees, and all persons privy to him. It adheres to the land, and is transmitted with the estate, whether the same passes by descent or pur- chase. And the estoppel becomes, and forever after remains, a muniment of the title so acquired; and when the party so estopped conveys the land, he necessarily conveys it subject to such estoppel in the hands of his grantee." See also Doe d. Potts v. Dowdnll. 3 Houst. (Del.) 369. 2 See Dye v. Thompson, 126 Mich. 597; Rooney v. Koenig, 80 Minn. 483. PERKINS V. COLEMAN 787 that lie did not OAvn, and this action of ejectment is brought by Terry's heirs to recover the possession of that part of the land thus inherited from the appellee. He resists the right of the appellants to recover the said land upon the ground that the title that Terry inherited was transferred to his vendee by estoppel. The appellants contend that the doctrine of estoppel does not protect strangers to the transaction; but only the parties and privies are bound thereby; and as the appellee is neither party nor privy, he cannot avail himself of the estoppel that would bar the appellants' rights as against Dunham or his privies. It is true that where the estoppel merely affects the consciences of the parties, and not the title, it does not operate on strangers to the transaction ; but where it " works an interest in the land " conveyed, " it runs with it, and is a title." Where it clearly appears from the writing that the vendor has conveyed, or agrees to convey, a good and sufficient title, and not merely his present interest in the land, the agreement runs with the land, and repeats itself every day; and if the vendor, at the time of the conveyance, has not title to the land, but subsequently acquires the title, it, " eo instante," inures to the benefit of the vendee and his privies. In other words, it is immedi- ately transferred by the law of estoppel to the vendee and his privies, because by the contract, which daily repeats itself, the vendor's title, whenever acquired, is transferred to the vendee and his privies ; conse- quently, a stranger to the transaction, in an action of ejectment by the vendor against him, where he must recover upon the strength of his title, and not upon the weakness of his adversary, may show that he has thus parted with his title. The judgment is affirmed.^ 1 In Somes v. Skinner, 3 Pick. (Mas,s.) 52. A owned a parcel of land. His son B purported to mortgage this to X by deed with covenant of warranty. A died and the land came by descent to B and C his brother. C was in possession. X brought a writ of entry, and it was held, that he was entitled to recover a moiety of the land. The court said that the after-acquired title passed to the grantee as against the grantor, and those claiming under the grantor, " and against mere strangers who usurped the possession without right or title." CHAPTER XIII DEDICATION CINCINTfATI V. WHITE 6 Pet. (U. S.) 431. 1832 This was a writ of error to the Circuit Court of the District of Ohio. The case came before the court on a bill of exceptions, taken by the plaintiffs in error, the defendants in the Circuit Court, to the in- structions given by the court to the jury on the request of the coun- sel for the plaintiffs in that court; and to the refusal of the court to give certain instructions as prayed for by the defendants below. In the opinion of the court no decision is given on those exceptions, save only on that which presented the question of the dedication of the land in controversy for the use of the city of Cincinnati ; which, and the facts of the case connected therewith, are fully stated in the opinion of the court. The arguments of the counsel in the case, on the matters of law presented by the exceptions, are therefore neces- sarily omitted. Mr. Justice Thompson delivered the opinion of the court. The ejectment in this case was brought by Edward White, who is also the defendant in error, to recover possession of a small lot of ground in the city of Cincinnati, lying in that part of the city usually denominated the Common. To a right understanding of the question upon which the opinion of the court rests, it will be suffi- cient to state generally, that on the 15th of October in the year 1788, John Cleves Symmes entered into a contract with the then board of treasury, under the direction of Congress, for the purchase of a large tract of land, then a wilderness, including that where the city of Cincinnati now stands. Some negotiations relative to the payments for the land delayed the consummation of the contract for several years. But on the 30th of September, 1794, a patent was issued conveying to Symmes and his associates, the land contracted for; and as Symmes was the only- person named in the patent, the fee was of course vested in him. Before the issuing of the patent, however, and, as the witnesses say, in the year 1788, Mathias Denman purchased of Symmes a part of the tract included in the patent, and embracing the land whereon Cincinnati now stands. That in the same year, Denman sold one third of his purchase to Israel Ludlow, and one third to Robert Pat- terson. These three persons, Denman, Ludlow and Patterson, being 788 CINCINNATI V. WHITE 789 the equitable owners of tlie land (iio legal title having been granted), proceeded in January, 1789, to lay out the town. A plan was made and approved of by all the proprietors; and according to which the ground lying between Front Street and the river, and so located as to include the premises in question, was set apart as a common, for the use and benefit of the town forever, reserving only the right of a ferry; and no lots were laid out on the land thus dedicated as a common. The lessor of the plaintiff made title to the premises in question under Mathias Denman, and produced in evidence a copy, duly authenticated, of the location of the fraction 17 from the books of John C. Symmes to Mathias Denman, as follows: "1791, April 4, Captain Israel Ludlow, in behalf of Mr. Matliias Denman of New Jersey, presents for entry and location a warrant for one fraction of a section, or one hundred and seven acres and eight tenths of an acre of land, by virtue of which he locates the seventeenth fractional sec- tion in the fourth fractional township, east of the Great Miami river, in the first fractional range of townships on the Ohio river; number of the warrant 192." In March, 1795, Denman conveyed his interest, which was only an equitable interest, in the lands so located to Joel Williams; and on the 14th of February, 1800, John Cleves Symmes conveyed to Joel Williams in fee, certain lands described in the deed which included the premises in question; and on the 16th of April, 1800, Joel Williams conveyed to John Daily the lot now in question. And the lessor of the plaintiff, by sundry mesne con- veyances, deduces a title to the premises to himself. In the course of the trial several exceptions were taken to the ruling of the court, with respect to the evidence offered on the part of the plaintiff in making out his claim of title. But in the view which the court has taken of what may be considered the substantial merits of the case, it becomes unnecessary to notice those exce])tions. The merits of the case will properly arise upon one of the instruc- tions given by the court, as asked by the plaintiff ; and in refusing to give one of the instructions asked on the part of the defendant. At the request of the plaintiff, the court instructed the jury, " that to enable the city to hold this ground and defend themselves in this action by possession, they must show an unequivocal, uninterrupted possession for at least twenty years." On the part of the defendants, the court was asked to instrnct tlie jury, "that it was competent for the original proprietors of the town of Cincinnati to reserve and dedicate any part of said town to public uses, without granting the same by writing or deed to any particular person; by which reservation and dedication the whole estate of the said proprietors in said land, thus reserved and dedi- cated, became the property of, and was vasted in the imblic, for tlie purposes intended by the said proprietors; and that, by such dedi- cation and reservation, the said original pro])rietors, and all persons claiming under them, are estopped from asserting any claim or right 790 CINCINNATI V. WHITE [CHAP. XIII to the said land thus reserved and dedicated." The court refused to give the instruction as asked, but gave the following instruction : " That it was competent for the original proprietors of the town of Cincinnati to reserve and dedicate any part of said town to public uses, without granting the same by writing or deed to any particular person ; by which reservation and dedication the right of use to such part, is vested in the public for the purposes designated; but tha't such reservation and dedication do not invest the public with the fee." The ruling of the court to be collected from these instructions was, that although there might be a parol reservation and dedication to the public of the use of lands; yet such reservation and dedication did not invest the public with the fee; and that a possession and en- joyment of the use for less than twenty years, was not a defence in this action. The decision and direction of the Circuit Court upon those points, come up on a writ of error to this court. It is proper in the first place to observe, that although the land which is in dispute, and a part of which is the lot now in question, has been spoken of by the witnesses as having been set apart by the proprietors as a common, we are not to understand the term as used by them in its strict legal sense ; as being a right or profit which one man may have in the lands of another; but in its popular sense, as a piece of ground left open for common and public use, for the con- venience and accommodation of the inhabitants of the town. Dedications of land for public purposes have frequently come under the consideration of this court ; and the objections which have generally been raised against their validity have been the want of a grantee competent to take the title ; applying to them the rule which prevails in private grants, that there must be a grantee as well as a grantor. But that is not the light in which this court has considered such dedications for public use. The law applies to them rules adapted to the nature and circumstances of the case, and to carry into execution the intention and object of the grantor; and secure to the public the benefit held out, and expected to be derived from, and enjoyed by the dedication. It was admitted at the bar, that dedications of land for charitable and religious purposes, and for public highways, were valid, without any grantee to whom the fee could be conveyed. Although such are the cases which most frequently occur and are to be found in the books, it is not perceived how any well grounded distinction can be made between such cases and the present. The same necessity exists in the one case as in the other, for the purpose of effecting the object intended. The principle, if well founded in the law, must have a general application to all appropriations and dedications for public use, where there is no grantee in esse to take the fee. But this forms an exception to the rule applicable to private grants, and grows out of the necessity of the case. In this class of cases there may be in- stances, contrary to the general rule, where the fee may remain in CINCINNATI V. WHITE 791 abeyance until there is a grantee capable of taking; where the object and purpose of the appropriation look to a future grantee in whom the fee is to vest. But the validity of the dedication does not depend on this; it will preclude the party making the appropriation from reasserting any right over the land; at all events so long as it remains in public use: although there may never arise any grantee capable of taking the fee. The recent case of Bcatty v. Kurtz, 2 Peters, 566, in this court, is somewhat analogous to the present. There a lot of ground had been marked out upon the original plan of an addition to Georgetown, " for the Lutheran Church," and had been used as a place of burial from the time of the dedication. There was not, however, at the time of the appropriation, or at any time afterwards, any incorpo- rated Lutheran church capable of taking the donation. The case turned upon the question, whether the title to the lot ever passed from Charles Beatty, so far as to amount to a perpetual appropriation of it to the use of the Lutheran church. That was a parol dedication only, and designated on the plan of the town. The principal objection relied upon was, that there was no grantee capable of taking the grant. But the court sustained the donation, on the ground that it was a dedication of the lot to public and pious uses ; adopting the principle that had been laid down in the case of the Town of Pawlet v. Clarh, 9 Cranch, 292, that appropriations of this description were exceptions to the general rule requiring a grantee. That it was like a dedication of a highway to the public. This last remark shows that the case did not turn upon the Bill of Rights of Maryland, or the Statute of Elizabeth relating to charitable uses, but rested upon more general principles; as is evident from what fell from the court in the case of the Toivn of Pawlet v. Clarh, which was a dedication to religious uses; yet the court said this was not a novel doctrine in the common law. In the familiar case where a man lays out a street or public highway over his land, there is, strictly speaking, no grantee of the easement, but it takes effect by way of grant or dedication to public uses. And in support of the principle, the case of Lade v. Shepherd, 2 Stra. 1004, was referred to; which was an action of trespass, and the place where the sup- posed trespass was committed, was formerly the property of the plain- tiff, who had laid out a street upon it, which had continued there- after to be used as a public highway; and it was insisted on the part of the defendant, that by the ])laintiff's making a street, it was a dedication of it to the public, and that, although he, the defendant, might be liable for a nuisance, the plaintiff could not sue him for a trespass. But the court said, it is certainly a dedication to the public, so far as the public has occasion for it, which is oidy for a right of passage; but it never Avas understood to be a transfer of his absolute property in the soil. The doctrine necessarily growing out of that case, has a strong bearing upon the one now before the court, in two points of view. 792 CINCINNATI V. WHITE [CHAP. XIII It shows, in the first place, that no deed or writing was necessary to constitute a valid dedication of the easement. All that was done, from anything that appears in the case, was barely laying out the street by the owner, across his land. And in the second place, that it is not necessary that the fee of the land should pass, in order to secure the easement to the public. And this must necessarily be so from the nature of the case, in the dedication of all public highways. There is no grantee to take immediately, nor is any one contemplated by the party to take the fee at any future day. JSTo grant or con- veyance can be necessary to pass the fee out of the owner of the land, and let it remain in abeyance until a grantee shall come in esse; and indeed the case referred to in Strange considers the fee as remaining in the original owner; otherwise he could sustain no action for a private injury to the soil, he having transferred to the public the actual possession. If this is the doctrine of the law applicable to highways, it must apply with equal force, and in all its parts, to all dedications of land to public uses; and it was so applied by this court to the reservation of a public spring of water for public use, in the case of M'Connell V. The Trustees of the Town of Lexington, 12 Wheat. 582. The court said ; the reasonableness of reserving a public spring for pub- lic use, the concurrent opinion of all the settlers that it was so re- served, the universal admission of all that it was never understood that the spring lot was drawn by any person, and the early appro- priation of it to public purposes ; were decisive against the claim. The right of the public to the use of the common in Cincinnati, must rest on the same principles as the right to the use of the streets; and no one will contend, that the original owners, after having laid out streets, and sold building lots thereon, and improvements made, could claim the easement thus dedicated to the public. All public dedications must be considered with reference to the use for which they are made; and streets in a town or city may re- quire a more enlarged right over the use of the land, in order to carry into effect the purposes intended, than may be necessary in an appro- priation for a highway in the country; but the principle, so far as respects the right of the original owner to disturb the use, must rest on the same ground in both cases; and applies equally to the dedication of the common as to the streets. It was for the public use, and the convenience and accommodation of the inhabitants of Cincinnati; and doubtless greatly enhanced the value of the private property adjoining this common, and thereby compensated the owners for the land thus thrown out as public grounds. And after being thus set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original o-v\Tier from revoking such dedication. It is a violation of good faith to the public, and to those who have acquired private property with a view to the enjoyment of the use thus publicly granted. CINCIXXATI V. WHITE 793 The right of the public in such cases does not depend upon a twenty years' possession. Such a doctrine, applied to public high- ways and the streets of the numerous villages and cities that are so rapidly springing up in every part of our country, would be destruc- tive of public convenience and private right. The case of Jarvis v. Dean, 3 Bingham, 447, shows tluit rights of this description do not rest upon length of possession. The plain- tiff's right to recoA'er in that case, turned upon the question whether a certain street in the parish of Islington had been dedicated to the public as a common public highway. Chief Justice Best, upon the trial, told the jury that if they thought the street had been used for years as a public thoroughfare, with the assent of the owner of the soil, they might presume a dedication; and the jury found a verdict for the plaintiff, and the court refused to grant a new trial, but sanctioned the direction given to the jury and the verdict found thereupon; although this street had been used as a public road only four or five years; the court saying, the jury were warranted in pre- suming it was used with the full assent of the owner of the soil. The point therefore upon which the establishment of the public street rested, was whether it had been used by the public as such, with the assent of the owner of the soil; not whetber such use had been for a length of time, which would give the right by force of the possession ; nor whether a grant might be presumed ; but whether it had been used with the assent of the owner of the land; neces- sarily implying, that the mere naked fee of the land remained in the owner of the soil, but that it became a public street, by his per- mission to have it used as such. Such use, however, ought to be for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment. In the present case, the fact of dedication to public use, is not left to inference, from the circumstance that the land has been enjoyed as a common for many years. But the actual appropriation for that purpose is established by the most positive and conclusive evi- dence. And indeed the testimony is such as would have warranted the jury in presuming a grant, if tliat liad been necessary. And the fee might be considered in abeyance, until a competent grantee appeared to receive it; which was as early as the year 1S02, when the cit}'^ was incorporated. And the common having then been taken under the charge and direction of the trustees, would ho am]dy sufficient, to show an acceptance, if that was necessary, for securing the protection of the public right. But it has been argued, that this api)ro]u-iation was a nullity, bt^ cause the proprietors, Denman, Ludlow and Patterson, when they laid out the town of Cincinnati, and appropriated this ground as a common, in the year 1789, had no title to the laud, as the patent to Symmes was not issued until the year 1704. It is luidoubtedly true that no legal title had passed from the United States to Symmes. 794 CINCINNATI V. WHITE [CHAP. XIII But the proprietors had purchased of Symmes all his equitable right to their part of the tract which he had under his contract with the government. This objection is more specious than solid, and does not draw after it the conclusions alleged at the bar. There is no particular form or ceremony necessary in the dedica- tion of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. This was the doctrine in the case of Jarvis and Dean, already referred to, with respect to a street; and the same rule must apply to all public dedications; and from the mere use of the land, as public land, thus appropriated, the assent of the owner may be presumed. In the present case, there having been an actual dedication fully proved, a continued assent will be presumed, until a dissent is shown; and this should be satis- factorily established by the party claiming against the dedication. In the case of Rex v, Lloyd, 1 Camp. 262, Lord Ellenborough says, if the owner of the soil throws open a passage, and neither marks by any visible distinction that he means to preserve all his rights over it, nor excludes persons from passing through it by positive prohibition, he shall be presumed to have dedicated it to the public. At the time the plan of the town of Cincinnati was laid out by the proprietors, and the common dedicated to the public use, no legal title had been granted. But as soon as Symmes became vested with the legal title, under the patent of 1794, the equitable right of the proprietors attached upon the legal estate, and Symmes became their trustee, having no interest in the land but the mere naked fee. And the assent of the proprietors to the dedication continuing, it has the same effect and operation as if it had originally been made after the patent issued. It may be considered a subsequent ratification and affirmance of the first appropriation. And it is very satisfac- torily proved, that Joel Williams, from whom the lessor of the plaintiff deduces his title, well understood, when he purchased of Denman, and for some years before, that this ground had been dedicated as a public common by the proprietors. The original plat, exhibiting this ground as a common, was delivered to him at the time of the purchase. And when he afterwards, in the year 1800, took a deed from Symmes, he must, according to the evidence in the case, have known, that he was a mere trustee, holding only the naked fee. And from the notoriety of the fact, that these grounds were laid open and used as a common: it is fairly to be presumed, that all subsequent purchasers had full knowledge of the fact. But it is contended that the lessor of the plaintiff has shown the legal title to the premises in question in himself, which is enough to entitle him to recover at law; and that the defendants' remedy, if any they have, is in a court of equity. And such was substantially the opinion of the Circuit Court, in the fourth instruction asked by CINCINNATI V. -VTHITE 795 the plaintiff, and given by the court, viz. " that if the s^id proprie- tors did appropriate said ground, having no tith» thereto, and at't(>r- wards acquired an equitable title only, that equitable title could not inure so as to vest a legal title in the city or citizens, and enable them to defend themselves in an action of ejectment brought against them by a person holding the legal title." We do not accede to this doctrine. For should it be admitted, that the mere naked fee was in the lessor of the plaintiff, it by no means follows that he is entitled to recover possession of the common in an action of ejectment. This is a possessory action, and the plaintiff, to entitle himself to recover, must have the right of possession; and whatever takes away this right of possession, will deprive him of the remedy by eject- ment. Adams's Eject. 32. Starkie, part 4, 506, 507. This is the rule laid down by Lord Mansfield in Atkins v. Uorde, 1 Burr. 119. An ejectment, says he, is a possessory remedy, and only competent where the lessor of the plaintiff may enter; and every plaintiff in ejectment must show a right of possession as well as of property. And in the case of Doe v. Staple, 2 Durn. and East, 684, it was held, that although an outstanding satisfied term may be presumed to be surrendered, yet an unsatisfied term, raised for the ])urpose of securing an annuity, cannot, during the life of the annui- tant; and may be set up as a bar to the heir at law, even though he claim only subject to the charge. Thereby clearly showing the plaintiff must have, not only the legal title, but a clear present right to the possession of the premises; or he cannot recover in an action of ejectment. And in the case of Doe v. Jackson, 2 Down, and Ryl. 523, Bayley, Justice, says, " an action of ejectment, which from first to last is a fictitious remedy, is founded on the principle, that the tenant in .possession is a wrongdoer; and unless he is so at the time the action is brought, the plaintiff cannot recover." If then it is indispensable that the lessor of the plaintiff should show a right of possession in himself, and that the defendants are Avrongdoers; it is difficult to perceive on what grounds this action can be sustained. The later authorities in England Avhich have been referred to, leave it at least questionable, Avhether the doctrine of Lord Mans- field in the case of GoodtUle v. AJker. 1 Burr. 143, "that ejectment will lie by the owner of the soil for land, which is subject to a pas- sage over it as the king's highway;" would be sustained at the present day at "Westminster Hall. It was not even at that day con- sidered a settled point, for the counsel on the argument (page 140) referred to a case, said to have been decided by Lord TTardwickc; \u which he held that no possession could be delivered of tho soil of a highway, and therefore no ejectment would lie for it. This doctrine of Lord Mansfield has crept into most of our elemeji- tary treatises on the action of ejectment, and has apparently, in some instances, been incidentally sanctioned by judges. But we arc not 796 CINCINNATI V. WHITE [CHAP. XIII aware of its liaving been adopted in any other case where it was the direct point in judgment. No such case was referred to on the argu- ment, and none has fallen under our notice. There are, however, several cases in the Supreme Court of Errors of Connecticut, where the contrary doctrine has been asserted and sustained by reasons much more satisfactory than those upon which the case in Burrow is made to rest. Stiles v. Curtis, 4 Day 328; Peck v. Smith, 1 Con. Eep. 103. But if we look at the action of ejectment on principle, and in- quire what is its object, it cannot be sustained on any rational ground. It is to recover possession of the land in question; and the judgment, if carried into execution, must be followed by delivery of possession to the lessor of the plaintiff. The purpose for which the action is brought, is not to try the mere abstract right to the soil, but to obtain actual possession; the very thing to which the plaintiff can have no exclusive or private right. This would be utterly inconsistent with the admitted public right. That right consists in the uninterrupted enjoyment of the possession. The two rights are therefore incompatible with each other, and cannot stand together. The lessor of the plaintiff seeks specific relief, and to be put into the actual possession of the land. The very fruit of his action, therefore, if he avails himself of it, will subject him to an indictment for a nuisance; the private right of possession being in direct hostility with the easement, or use ta which the public are entitled; and as to the plaintiff's taking pos- session subject to the easement, it is utterly impracticable. It is well said, by Mr. Justice Smith in the case of Stiles v. Curtis, that the execution of a judgment in such case, involves as great an inconsistency as to issue an habere facias 'possessionem of certain premises to A., subject to the possession of B. It is said, cases may exist where this action ought to be sustained for the public benefit, as where erections are placed on the highway, obstructing the public use. But what benefit would result from this to the public? It would not remove the nuisance. The effect of a recovery would only be to substitute another offender against the public right, but would not abate the nuisance. That must be done by another proceeding. It is said in the case in Burrow, that ^n ejectment could be main- tained because trespass would lie. But this certainly does not follow. The object and effect of the recoveries are entirely different. The one is to obtain possession of the land, which is inconsistent with the enjoyment of the public right; and the other is to recover damages merely, and not to interfere with the possession, which is in perfect harmony with the public right. So, also, if the fee is supposed to remain in the original owner, cases may arise where perhaps waste or a special action on the case may be sustained for a private injury to such owner. But these are actions perfectly consistent with the public right. But a recovery in an action of ejectment, if carried into execution, is directly repugnant to the public right. REED V. NORTHFIELD 797 Upon tlie whole, the opinion of the court is, that the judgment must be reversed, and the cause sent back, with directions to issue a venire de novo. REED V. NORTHFIELD 13 Pick. (Mass.) 94. 1832 i This was an action on the case, upon Stat. 1786, c. 81, to recover double damages for an injury to the plaintiff, caused by a defect in a highway in the town of Northfield. The defect complained of was a hole in the road, by the side of a small bridge. The plaintiff alleged tluit tlie horse on which he was riding, stepped into the hole, and fell, and threw the plaintiff over his head. At the trial, before Morton, J., it was agreed that the road had been known and used as a public highway, for fifty years before the injury to the plaintiff, and as such, during that time, had been re- paired by the town of JNTorthfield. The defendants objected to the sufficiency of these facts to show such a highway as would render the defendants liable in this action ; but the judge overruled the objection, and instructed the jury that they were sufficient. The jury returned a verdict for the plaintiff, :ni facts were, that it had been known and used as a public higliway for fifty years, and during that time had been repaired by tlic town. It is analogous to a right of way, or other easement; wliicli, it has l)een recently decided, may be held by prescription, by proving a u.se for forty years. Kent v. Waltc, 10 Pick. 138; Melvin v. WJiHinrj. Ibid. 295. Whether a public right of way can be established by dedication and tacit adoption, by a presumed grant, or l)y any other mode, in a period short of forty years, we do not now give any opinion. But if an uninterrupted use of a highway and tlie support of it by the town for forty years, which is now the longest term of ])rescri]i- tion known to the law, would not establisli it, it would ho equivalent to declaring that there can be no liighway ])rove(l in any mode l)nt by the record of its being laid out; which, in regard to many, and those the most important and ancient highways of the conmion- 1 Part only of the case is given. 798 ' REED V. NORTHFIELD [CHAP. XIII wealth, would be utterly impossible. But without dwelling upon the supposed inconvenience of a different rule, we think it clear upon principle, that public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment, that they were, at some anterior period, laid out and established by competent authority. Note. — On the manj' questions arising with respect to the difficult sub- ject of Dedication, on which the authorities are numerous and conflicting, see 3 Dillon, Mun. Corp., 5th ed., c. XXIII; 2 Tiff., Real Prop., 2d ed., §§ 479-486, 533. ABSTRACT OF TITLE IN MASSACHUSETTS' 564-275 Andrew Kitchen Aug. 30, to 1849 Jas Cunningham & David Cross $1, etc. Land in Roxbury H & A Lot 2 on pi by David A. Granger dt Aug 1, 1S47 cont 102400 sq ft bnd WD SW by Saratoga Street 325, D & H NW by Trenton St 203, Patience NE by lot 1 320, & SE by road fr Roxbury to Boston 116 D. June 5,. 1S49 O O A. " 6, 1849 91.5-118 Jas Cunningham Sept. 30, & David Cross 1863 to $1333L« John Q. Henry H & A WD >> ex any >> incs wh may hv been md >) or suffrd by sd Henry or his reps D. & ex txs for A. 1862 & 1863 D&H uxDC? Catherine H. Ack. ? ux J. C. Pel Id in Roxbury cont 102400 sq ft ± Beg by Id Wm Thomas on Centre St thn r SW 116 to Saratoga St NW by said Saratoga St 316-3 to Trenton St NE by Trenton St abt 200 to Id Wni Thomas SE by Id sd Wm Thomas 320 to p of b Sept. 30, 1863 O O " 30 "by Catherine H. Wm Gaskin J. P. 1 The following abstract is prepared by a title examiner, who may or may not be a lawyer, and presented to the conveyancer for the hitter's review and opinion. The numbers over the dates of deeds are the references to the books and pages in the registry of deeds. The short notes in italics are the examiner's suggestions to the conveyancer of possible defects. An affidavit of notice of appointment of an executor or administrator has in Massachu-setts a bearing on the liability of real estate for the payment of debts. Gen. Laws (1921), cc. 197, 202. The law as to the foreclosure of mortgages will be found in Gen. Laws (1921), c. 244. Needless to say the title is defective. A Ust of abbreviations follows: H. = heir A. = assigns WD = warranty deed D. & H. = dower and homestead Ux = wife D. = dated A. = acknowledged O = seal J. P. = justice of the peace N. P. = notary public Beg. = beginning r. = running Bn. = Boston Jour. = Journal BUT. = sureties App. = approved Aff. = affidavit Fmly. = formerly Rox. = Roxbury n. or 1. = now or late md. = made QcD = quit claim deed dwhse = dwelling house S. & A. = successoi^ and assigns Ev. = evidence Rec. mtg. = recites mortgage dd = deed c = claims Evng Trans. = Evening Transcript 799 800 ABSTRACT OF TITLE IN MASSACHUSETTS Mtg 915-119 9500 as foil, 1500 in 1 yr & 2000 for Sept. 30, Mtg back ux Jane S. 4 sue yrs-6 % 1863 D. Sept. 30, 1863 A. " 30, 1863 OO 1031-250 Asst to Jas Watts & Sam Cook H & A 800 (amt now due) Oct. 30, D. Oct. 29, 1868 1868 \ A. " 30 " OO Saml Jennison J. P. 1034-260 Dischgd to Jane S. Henry ux John Q. H & A July 6, by S. C. 1876 D. Jun. 10, 1876 A. Jul. 5, 1876 A. C. Clark J. P. 1475-73 John Q. Henry $1, etc. Ld & bldgs (sm as 915-118) Dec. 15, to 1885 Israel H. Allen H & A D. December 12, 1885 Q O WD A. " 15, " ux Jane S. Jas Muster J. P. Suff. #33545 Israel H. Allen Boston d. Oct. 28, 1893 leavg Lulea C. " widow Henry D. " son Frank D. " Annie L. Howe ux Chas. M. dau-Watertown Will & Codicil 1. To my wife, Lulea C. Allen 2000 in stocks & bonds 2. To ea of my 3 bros 100. 3. To my sd wife 1/3 of residue 4. To my childn remainder, share and share alike Testy clause O. K. 3 wits. Nov. 1, 1893 Petn Henry D. Allen & Frank D. Allen tht will & cod be alld & letters test issued Cit Bn Jour Ret Nov. 18, 1893 Nov. 18, 1893 Granted " " " 2 bonds 20000 ea no sur App. " " " Letter Bn Jour Dec. 18, 1893 Aff ntc of Appointmnt Bn Jour. May 29, 1894 Inv R 19197. P 16125.09 Lot in Cemetery at Chicopee 25 Hmstd No. 329 Centre St. Boston 19172 June 19, 1894 Allnc to widow Pers to amt of 1000, Legacies pdf No acct? ABSTRACT OF TITLE IN MASSACHUSETTS 801 1925-275 Lulea C. Allen wid Bn SI, etc. Jan 27, Henry D. Allen Rel 1895 Frank D. Allen D& H Annie L. Howe ux Chas M. & curtsy Watertown Ann ux Henry D. Frank D. unm W D to Isaac A. Hatch H& A Pel Id & bldgs in tht pt of Bn fmly Roxbury SW on Saratoga GO XW " Trenton 100 NE " Id n or 1 Alden abt 60 SE " Mt Ida 100 See pi of est in Bn belonging to Israel H. Allen md by A. F. Xoyes dt July 1, 1887, Suff PI Bk 52-375 Being pt of prcm cvy to sd Israel C. Allen by John Q. Henry, dt Dec 12, 1885, Suff Dds 1475-73 D. January 27, 1895 (6 Seals) A. " " " H. D. A. John Cox J. P. 1993-103 Isaac A. Hatch $1, etc. Ld & bldgs (sm as 1925-275) Jan 19, to D&'H 1896 Woldman & Co. a QcD D. Dec. 13, 1895 OO Corpn undr laws A. Jan. 18, 1896 Com'lth Mass. S&A ux Mary 2206-1 Woldman & Co. •SI, etc. Ld & bldgs in Rox di.st of Bn Dec. 20, Mass. Corp QcD SW on Saratoga 60 zh 1905 to NW " Trenton 100 John Munroc of Bn H&A NE " Id f Alden n or 1 Thomas 60 ± Ack? 2948-18 John Mimroe $1, etc. Apr 3, of Bn 1910 to QcD John Munroe & H&A James Steele D&II Ann C. ux Cont abt 6000 sq. ft. Woldman Co. by J. S. Wood, Pres D. Dec. 15, 1905 A. " " " J. S. W. Ld & bldgs in tht pt of Bn fmly Rox shn on a pi by A. F. Noyes dt July 1, 1887, Suff PI Bk 52-375 bnded SW on Saratoga St 60 NW " Trenton 100 NE " Id n or 1 G. E. Alden ubt t)0 SE " Mt Ida St abt 100 Being prem evd to me by Woldman Co. by 2206-1 «fc being hrby eyd .<;ubj to follg restns, wh shl rem in force fur tnn of 10 yrs fr (It of Ihs di'cd, viz: No bldg .shl be erected or pled thron oth thn one dwhsc adajited to u.se of one family only. Xo lise shl bo crctd or i)led thron costng less thn 5000, nor nearer thn 20 ft to .sd Saratoga St. It being hrby agrd tlit th hlili/ now stndg thron shl never be used for any 802 ABSTRACT OF TITLE IN MASSACHUSETTS oo? mechancl, foundry or manufacturing purs, or for any oth busns or trade tht shl be offnsv to th neighborhood for dwhses or for th keepg of live stock D A A 1910 O A Apr 3, 1910 Thos Lee N P Mtg. James Steele 2500-3-6 1 undivided half pt 3568-269 to June 30, Chas. E. Aldrich Ld & bldgs (sme as 1915. James Stanley 2948-18) Peter Paine trs u/w John Pike • S&A D. June 30, 1915 A )) )> >> J S bef Thos Lee No re dower? No seals? 3628-142 Ev possn Ent md May 1, 1918 by Arthur H. Hunt duly authorized atty Aug 11, of mtgees 1918 Wits John J. Allen Abraham Vose James Murphy D. Aug. 11, 1918 3767-165 We Chas. E. Aldrich, James Stanley & Peter Paine, trustees undr will of John Pike, hrby const & appnt Arthur H. Hunt our true & lawful atty for us & in our nme & std to mk th statutory entry upon certn prems sit in Bn desc in a certn mtg gvn to us as trs as afrsd by James Steele rec 3568-269 for pur of foreclosg sd mtg for breach of condth throf. Hrby grntg full pow & auth to sgn, seal, ack & deliver any and all deeds or other insts wh he may deem necsry or propr in the prems. D. Aug. 10, 1918 O O O A. " 11 " CEA&JS H. L. French Rec mtg & auth upon deflt to sell at pub auc 1st pub ntc 1 undivided half pt Id & bldgs in tht pt of Bn fmly Rox shn on pi by A. F. Noyes dt July 1, 1887, Suffolk Dds PI Bk 52-375 SW on Saratoga 60 NW " Trenton 100 NE " Id n or 1 G. E. Alden abt 60 SE " Mt Ida abt 100 Being &c C3'd to sd trstees by James Steele 3568-269 & is hrby cyd subj to all valid existg liens, restns & all unpaid taxes & assmnts D. Sep. 7, 1918 O O O trustees A. Same d. by C. E. A. bef. John Smith J. P. Foreclosure Deed 3767-202 Chas. E. Aldrich for $2500 pd Sep. 7, James Stanley gr 1918 Peter Paine trs u/w John Pike H&A to Mark A. Dean ABSTRACT OF TITLE IN MASSACHUSETTS 803 3767-205 Aff Chas. E. Aldrieh, James Stanley, Peter Paine trs u/w John Pike dt June 30, 1918 deflt in pymt of int. pub 3 sue wks on 10-23 Stat. 21 & 28 Aug. 1918 in Bn Advertiser a papr pub in Bn. days? Ntc will be sold at pub auc on the prems in Bn on Tues Aug. 31, 1918 at 3 o'clock p.m. all & sing th prems cyd by sd mtg & desc in sd mtg as foils (Sm Descrptn) Sd prems will be cyd subj to all unpaid taxes, liens, restns & assmnts C E A, J S, P P trs & Mtgees Present holders of Said Mortgage Purs to sd ntc & at tm & pic thrin appntd on th prems sold th prems at Pub Auc by Geo N. Goodrich, duly he auctnr, to Mark A. Dean for 2500 highest bid D. Aug. 11, 1918 C E A, J S, P P trs as afsd O O O Sworn to Aug. 11, 1918 James Wheeler N P One undivided half part of Id & bldgs in tht i)t of Bn fmly Rox (Sme desrptn as 2948-18) Being prems cyd by my dd to James Steele & myself rec 2948-18 & they are now cyd wth benf of & subj to th restns thrin set forth. D. Dec. 22, 1918 O A. Dec. 22, 1918 Thos. Lee N P Suff. #190603 Mark A. Dean Bn d June 28, 1920 Elizabeth T. Dean widow Mary E. Cutter ux G. R. dau Fitchburg John E. Dean son Springfield Will 1. Pymt of debts & c 2. Wf Ehzabeth T. Dean (pcrs) 3. To Dean Academy of Burlington, Vt. 50000 wth int at 6 '^ fr dy of my dec to be added to th permanent fund »fc incm used for cur ex- penses. 4. To Mary J. Field ux David M. 5000 & pers 5. To John Harding 3000 6. To Mrs. Hannah Flint dau sd John 4000. In case of her dec to her childn 7. To James Adams 5000 8. Residue in trust for ux for life, remainder to various institutions. 9. FuU pow of sale to exors & trustees 3809-100 John Munroe 1 &c Dec. 23, to H 6i A 1918 Mark A. Dean WD D&H ux AnnC. 804 ABSTRACT OF TITLE IN MASSACHUSETTS July 10, 1920 Petn Jos. H. Cotton, Timothy H. Sawyer & Chas E. Hill tht w be alld & lettrs test issued to them without sur Cit Bn Evng Trans Ret Aug 1, 1920 Aug 1, 1920 Granted Bn Evng Trans Aug 3, 3 bonds 1000000 ea no sur Aff ntc of appointmt (none) Oct 13, 1920 Inv. R. 454000 P 25000 Acct. Showing all legacies pd . (not allowed) Trust. Aftr pymt of all debts and expenses and legacies herinbef ment, 1 g, d and b th remdr of my est, re, per & mixed of whatevr nme and nature and whrsoevr sit unto sd trs, to pay 1/2 th net inc to my wf, Elizabeth T. Dean, durng her nat life and on her dth th sd 1/2 to become pt of residue. The othr 1/2 of sd net incm I g, d and b to the follg insts in equal shrs. Natural History Society, Winchester College, Boston School of Fine Arts. Boston Mechanical School and Hospital for Women & Children. Upon the death of my sd wife the whole of said tr propty shl be pd over to the abv nmd instutns in equal amts. Testy clause O. K. 3 wits. INDEX Abstract of Title, 799 Acceptance, 656-665. Accretion, 1-24. Acknowledgment, 653. Adverse Possession, 25-94; actual, open, exclusive, continuous, 66n.," burden of proof, 66n.; by lessee, 53; by licensee, 44; by life tenant, 56; color of title, 68, 71n., 76n.; con- structive, 68-79; constructive, tack- ing, 79n.; constructive, true owner, 79n.; conveyance of lands in, 67n.; disabilities, 25-32 passim, 90; ex- tent of claim, 44-53; extinguish- ment of public way by, 67n.; mis- take, 62-67; nature of title by, 34n.; partition, 459n.; public easements, 793, 797; recording acts, 38n.; rever- sioners and remaindermen, 48-57, 57n.; tacking, 79n., 80-89; void deed, 62; way of necessity, 38n. See Dedication; Tacking. Appurtenances, 471, 529, 530; ease- ments and profits as, 159-160; land as, 158. Bargain and Sale, 146. Boundaries, 161-181; courses and distances, 168-173n.; monuments, 161-173; on lakes and ponds, 24n.; on water, 173-179; on ways, 180; quantity, 173n. Burden of Pr(jof, adverse posses- sion, 66n.; prescription, 141 Cancellation deeds, 665n. Choses in Action, assignment of, 580-585. Color of Title, prescription, 143n. See Constructive Adverse Possession. Common, 471. Consideration, recital, 156. Constructive Adverse Possession, 68-79; color of title, 68, 7 In., 76n.; tacking, 79n.; true owner, 79n. Conveyance, form of, 155. Conveyances, by record, 144; by special custom, 145; form of, 144- 157; tortious, 146-149. Copyhold, 145. CoRPORATio.vs, feoffment in fee to, 184. CovEN.^NT, to stand .seised, 146; See Landlord and Tenant. Covenants for Title, breach, 553n.- 554n.; broken covenants, .565-585; by strangers to title, 58(5-600 ; dam- ages, 553n.-554n.; estoppel by, 554n.; running with land, 555-<)0b; running with possession, 58j^-()00; who may sue, 555-565. See Estoppel. Dedication, 788-798. Deeds, cancellation, 665n. See Sign- ing; Sealing; Delivery. Delivery, acknowlegincnt, 653; es- crow, unauthorized transfer out of, 647; escrow to agent of grantee, 612n.; escrow to grantee, 612-617; escrow, relation back, 625-(i41 ; gran- tor retains deed, 652-655; record- ing, 654; right to recall, 641; to stranger for grantee, 617-652. Desciui'Tion of Property, 158-181. Disability, acceptance by grantee under, 665n. See Adverse Possession. Disseisin, 38-48, 53, 58, 60, 62. See Partition. Easements, created by reference to use, 528-537; by words of reserva- tion or exception, 538-552; light and air, HI, 114, 118; public, 793, 797; registration, 745; way of necessity, 38n. Hee Easenunts, Im- plied; Prescription. E.\skments, Lmplikd, apparent, .')00- 511, 521; condemnation proceed- ings, 476n.; continuous and a{>- parent, 500-511; escheat, 476n.; execution, 476n.; granted, 501); land sold by plan, 519; liglit and air, iTS, 5U\; purchasers, 526; re- ciprocal, 478; reserved, 474-500; simultaneous transfers, 51 1-516, 521 ; support, 478; way of necessity, 472, 474-477, 576. Elegit, Est.\te by, 195. Enrolments, Statute of, 146. 805 806 INDEX Estoppel by Deed, 702-787; regis- tration, 780-786; statute of limi- tation, 7 7 In.; warranty, 761, 769, 771n., 780, 783. Eviction. See Covenants; Rents. Escrow. See Delivery. Exception. See Easements. Exchange, 155. Executory Interests, 765n. Expectancy, Sale of, 771n. Fee Simple, Estate in, heirs, 182-185. Fines, 144. Further Assurance, Covenant for, 553, 569, 77 In. Habendum, 552n. Incumbrances, Covenant against, 553. See Covenants for Title. Joint Ownership, actions, 428n.; buy- ing outstanding titles, 429-435; con- veyance by metes and bounds, 420- 428, 467; liability for use, or misuse, to other co-tenant, 435-446; personal property, 470n.; repairs, 436-453n.; reparatione facienda, 436, 447; ser- vices of co-tenant, 441-446; words creating, 421n. See Partition. Joint Tenants. See Joint Ownershij). Landlord and Tenant, attornment, 289; covenants, 230-266; cove- nants, eviction, 264-266; covenants to pay taxes, 252; covenants im- plied, 230-238, 266n., 309; cove- nants, dependency of, 257-266; ex- tension of lease, 225; lease in Mass., 197; permissive waste, 238-252; surrenders, 372-420; use and occu- pation, 29.5-296; See Rents, Year to Year, Estate from. Life, Estate for, 188-192. Light and Air, 111, 114, 118, 473, 516. Limitation, Statutes of, 25-32, 81n. See Adverse Possession; Prescription. Lis Pendens, 728. Mortgage. See Registration. Non-Claim, Covenant of, 77ln. Notice. See Registration. Original Acquisition, 1-24. Partition, discharge of obligations, 463n.; creditors and mortgagees. 46.3-470; dis.sei.sin, 453-4.54; evic- tion by paramount title, 4.54; im- provements, 460; land held ad- versely, 459n.; nature of deed of, 453n.; parol, 4.53; repairs, 453n.; writ of, 453, 455, 456n. See Joint Ownership. Possession, Adverse, 25-94. See Adverse Possession. Prescription, 95-143; Act, 114n.; burden of proof, 141; color of title, 143n.; currents of air, 109; history of, 95-97, 101-102; interruption, 142n.; light and air. 111, 114, 118; reversioners and remaindermen, 111-118. Probate, summary in abstract, 800, 803. Public, rights in. See Dedication. Public Grants, 145. Quiet Enjoyment, Covenant for, 266n., .553. See Covenants for Title; Rents. Quit Claim Deed, 693-700, 771n. Recording, deUvery, 654; See Reg- istration. Recording Acts, 665-669; adverse possession, 38n. See Registration. Recoveries, 144 Registration, abstract of title, 799; actual notice, 727n; as notice, 670- 690; creditors, 667, 669, 670-673; deed of ancestor unrecorded, 691; easements, 745; equities, 670-673; errors in, 675-687; estoppel by deed, 780-786; index, 677-687; lis pendens, 728; marshalling, 748- 759; mortgages, 667-669, 682, 688, 701, 748-759, 802, 803; notice, 700- 727; not in chain of title, 737-748; prior purchasers, 688; quitclaim deeds, 693-700; restrictive cove- nants, 743; unacknowledged deed, 674; unrecorded deeds, 691-700; statutes, 666-669; Torrens sj'stem, 759n. Releases, 1.50-153. Remainder, contingent, 57n., 554, 763, 765n.; vested, 57n. Rents, 266-371; apportionment in time, 303; constructive eviction by landlord, 334-335; destruction of premises, 323-328; effect of acts of the government on, 312-322: eviction by landlord, 329-334; evic- tion by paramount title, 207-311; INDEX 807 failure to obtain possession, 355-365; for life, 278-280; kinds of, 26G-269; king's enemies, 322; merger, 365- 372; rights and liabilities of assign- ees of lessor and lessee, 280-295; tenant in fee, 270-279; what pay- ments are, 297-302. Reparatione Facienda, 436, 447. Reservation, See Ease?nenls, Implied. Reversioner, right to sue, 113n.; See Adverse Posssesion; Prescription. Right to Convey, Covenant of, 553. See Covenants for Title . Seals, 603-611; summary of statutes, 607n. Seisin, livery of, 146; covenant of, 553. See Covenants for Title. Signing, 601-605 St.\tute of Enrolments, 146. Statute of P^rauds, 148, 214-223. Statute Merchant, Estate by, 194- 196. Statute Staple, Estate hy, 194- 196. Statutes. See Table of Statutes, xi. Statutes of Limitation, 25-32, 81n., 771n.; disabilities, 25-32, 90; oper- ation of, 32-38. See Adverse Pos- session. Surrenders, 154; by operation of law, 372-420. Tacking, adverse possessions, 79n., 80-89. Tail, Estate in, 186-187; in term for vears, 193n.; tortious conveyance, 147-149. Tenants in Co.mmon. See Joint Ownership. Torrens System. 759n. Warranty, Covenant of, 553, 771n. See Covenants for Title; Estoppel by Deed. Waste, Permissive, 238-252. Waters, 1-24; boimdarieson, 173-179. Ways, boundaries on, ISO. Sec Ease- ments; Easements, Implied. Will, Estates at, 193-194, 198-225 passim; termination of, 224-225. See Year to Year, Estate from. Years, Estate for, 193-194; exten- sion by holding over, 225. See Landlord and Tenant. Year to Ye.\r, Estate from. 198- 224; agreement to lease, 207-211; holding over, 200-206, 218; void lease, 214-223, 218n. i.lERARY .UiV4>^*v,uAiA O^' CALIFORNU; LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 885 217