U.S. <^ ^<^ l.«>sAn^le.,^i^. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Harold E. Ives y^'.- (Uo r J- '- s s ^ 7'ir^ ■sr J-fi. >■ ' ^ t_ <~ H(,(, ^' ^ cl^f^r^ ' -^^W VC.>^ Lft<.<. y^l^C^tU^ ^-y.^w/ erger & Willard v. Ragland Stone V. Duvall Stonehill v. Hastings.' Strong V. Whybark Sturgeon v. Wing field Sttirges V. Bridgman SuFFiELD V. Brown Page 43 39 486 661 670 789 467 8.^4 624 91 255 52Q 573 312 429 758 440 262 642 56 200 767 426 3.52 368 497 31 236 34 600 240 4.39 914 443 837 421 443 329 7 656 819 461 885 17 740 68 279 443 631 221 872 322 325 «77 796 114 483 Taunton v. Costae 637 Pape Tefft V. Mhinson 858 Temple v. Benson 416 Terrell v. Andrew County 927 Thomas v. Cook 207 Tliomas v. Stone & Graham SSO Thompson v. Baxter 575 Thompson v. Leach 375 Thomson v. Amey 660 Thorn v. Neusom 884 Thomburg v. Wiggins 692 Tichhorne v. Weir 24 Tisher v. Beckwith 283 Toothe V. Bryce 521 Trowbridge v. Ehrich 444 Turner v. Meymott 636 Tyrrel's Case 261 Ure V. Ure 266 Van Der Volgon v. Yates 241 Van Home v. Fonda 700 Van Rensselaer v. Kearney... 786 Volcanic Oil & Gas Co. v. Cluiplin 147 Wallace v. Fletcher 94 Wallis V. Doe ex dem. Smith's Heirs 610 Walls V. Atcheson 209 Walter v. Greennood 720 Ward (Lord) v. Lumloy 190 Waters v. Philadelphia 174 Watson V. Watson 595 Webb V. Bird 112 Weeks v. New York, W. & B. R. Co 538 Welch V. Sackett 384 West V. Weyev 715 Whalley v. Thompswi 406 Wheeldon v. Burrows 478 Wheeler v. Young 862 Wheelwright v. Wheelwright 308 \STiitaker r. Brown 449 Whitehead v. Clifford 206 Whitehead v. Ragan 405 Whiting v. Whiting 616 Whittier v. Montpclier Ice Co 443 Whyddon's Case 3.34 Wilkinson v. Tranmer 255 Williams v. Burrell 748 Williams v. Green 336 Williamson v. Brown 902 Wilson v. Hart 896 Wilson V. Taylor's Ex'rs 776 Wipfler V. Wipfler 342 Woods V. Garnett 854 Wormley v. Wormley 177 Wyman v. Brown 270 Yard v. Ford Ill Youngblood v. Vastine 849 Zick V. London United Tramways, Limited 197 CASES ON PROPERTY TITLES TO REAL PROPERTY PART I ORIGINAL TITLES CHAPTER I POSSESSORY TITLES SECTION 1.— SEISIN AND DISSEISIN MAITLAND, THE MYSTERY OF SEISIN. Any one who came to the study of Coke upon Littleton with some store of modern legal ideas but no knowledge of English Real Prop- erty Law would, it may be guessed, at some stage or another in his course find himself saying words such as these: "Evidently the main clue to this elaborate labyrinth is the n otion of seisin . But what pre- cisely this seisin is I cannot tell. Ownership I know, and possession I know, but this tertium quid, this seisin, eludes me. On the one hand, when Coke has to explain what is meant by the word he can only say that it signifies possession, with this qualification, however, that it is not to be used of movables, and that one who claims no more than a chattel interest in land cannot be seised, though he may be possessed. But, on the other hand, if I turn from .definitions to rules, then cer- tainly seisin does look very like ownership, insomuch that the owner - s hip of land, w hen not united with the seisin, seems no true ownership ." The perplexities of this imaginary student would at first be rather increased than diminished if he convinced himself, as I have convinced myself and tried to convince others, that the further back we trace our legal history the more perfectly equivalent do the two word s seisi n and possession_become ; that it is the fifteenth century before English law- yers have ceased to speak and to plead about the seisin (thereby be- Aig.Pbop. — 1 2 ORIGINAL TITLES (Part 1 ing meant the possession) of chattels. Certainly as we make our way from the later to tlie older books we do not seem to be moving towards an age when there was some primeval confusion between possession and ownership. We find ourselves debarred from the hypothesis that within time of memory these two modern notions have been gradually extricated from a vague ambiguous seisin in which once they were blent. In Bracton's book the two ideas are as distinct from each other as they can possibly be. He is never tired of contrasting them. In season, and (as the printed book stands) out of season also, he insists that seisina or possessio is quite one thing, dominium or proprietas quite another. He can say with Ulpian, "Nihil commune habet pos- sessio cum proprietate." 2 Law Quarterly Rev. 481. POLLOCK & MAITLAND, HIST. ENG. LAW. On the whole we may say that the possession of land which the law protects under the name of a "seisin of freehold" is t he occupation o f land b y one who has come to it otherwise than as tenant in villeinag e, te nant at _will^ t enant for term of vears or guardiaa : that occupation being exercised by himself, his servants, guardians, tenants in villein- age, tenants at will or tenants for term of years. This seems the best statement of the matter : Occupation of land is seisin of free tenement unless it has been obtained in one of certain particular ways. If, how- ever, we prefer to look at the other side of the principle, we may sav that the animus required of the person who is "seised of free tenement" is the intent to hold that land as though he were tenant for life or ten- ant in fee holding bv some free tenure. 2 P. & M. Hist. Eng. Law (2d Ed.) 40. MAITLAND, THE MYSTERY OF SEISIN. There is another side to the picture we have here drawn. He who is seised, though he has no title to the seisin, can alienate the land ; he can make a feoffment and he can make a will (for he who has land is enabled to devise it b}' statute), and his heir shall inherit, shall inherit from him, for he is a stock of descent; and there shall be dower and there shall be curtesy, and the lord shall have an escheat and the king a forfeiture, for such a one has land "to give and to forfeit." This may make seisin look very much like ownership, and in truth our old law seems this (and has it ever been changed?) that seisin does give ownership good against all save those who have better because oldei' title. Nevertheless we err if we begin to think of seisin as ownership or any modification of ownership ; after all it is but possession . A term- or was not seised, but certainly he could make a feoffment in fee and Ch. 1) POSSESSORY TITLES 3 his feoffee would be seised. This seems to have puzzled Lord Mans- field, and puzzling enough it is if we regard seisin itself as a proprie- tary right, for then the termor seems to convey to another a right that he never had. But when it is remembered that s ubstantially seisin is possession, n o more, no less, then the old law becomes explicable. My butler has not possession of my plate, he has but a charge or custody of it ; fraudulently he sells it to a silversmith ; the silversmith now has possession : so with the termor, who has no seisin, but who by a wrong- ful act enables another to acquire seisin. 2 Law Quarterly Rev. 488. BRACTON, DE LEGIBUS ANGLL^. Likewise a disseisin takes place, not only if any one ejects the true owner when present, or his agent, or his family, or does not admi t him, or repels him on his return f rom market or from a journey, but lie also effects a disseisin, if he shall not permit the owner or his agent or his family being in possession to make use of it, or at least hinders him from making a convenient use of it. And in which case, although he does not altogether expel [the owner J, nevertheless he inflicts upon him a disseisin, since he t akes away from him altogeth er t he convenience of using it^or hinders him from using it conveniently , q uietly, and in peace, by disquietmg and disturbing his possession . Likewise a disseisin takes place not only according to what has been said above, but also if any person of greater power wishes to make use of the tenement of another against the will of the tenant, by plough- ing, or by digging, by reaping and carrying away, contending that the tenement, which is another's, is his own ; but if he has made no claim t o the tenement, it will be another thing. ^ because then there will be a, t respass. and not a disseisin from a freehold , or by turning in sheep, or in some other manner imposing a servitude upon land, which was free beforehand. Bracton, fol. 161b; Twiss' Translation, 3 Tw. Br. 17. LITTLETON'S TENURES. And note that disseisin is properly, where a man entreth into any lands or tenements where his entry is not congeable, and ousteth him which hath the freehold, etc. Section 279.^ 1 "Disseisin was t j^e wrongful takin cr ^^ny ,frnm fhp rp^il nwnPi' nt tus a ctual seisin . 'Disseisin was formerly a notorious act, when the disseisor put himself in the place of the disseisee as tenant of the freehold and per- formed the acts of the freeholder and appeared in that character in the lord's cdurt' Lord Ellenborough, in William v. Thomas, 12 East, 141, 155 (1810). Or, as Lord Mansfield put it: 'Disseisin, therefore, must mean some ORIGINAL TITLES (Part 1 LEAKE, LAW OF PROPERTY IN LAND. Disseisin was a wrongful entry upon the land and ouster or dispo s- session of the freeholdej . An entry, or perception of rents and profits, under colour of an adverse J itle, although evidence of an ouster, might be explained by the circumstances, and not amount to a disseisin. The disseisor acquired, by his wrongful act, an e state in fee simpl e, as against all but the real owner, and upon this title he might maintain an a ction of ejectmen t against a stranger to tlie title who had ousted him. The disseissee retained a mere right of entry which, if exer- cised within the limits of ti me which were periodically fixed by law, revested the estate in him. Di sseisin of the tenant of a particular estate disseised or divest ed a ll tlie estate s in remainde r or reversion, and converted them into m^ re rights ot entry, exerciseable in their order of succession . The tenant himself of the particular estate whether for life, or for years, having the actual seisin, had it in his power to make a feoffmen t t o another by livery , which effectually conveyed the fee, if it in terms imported to do so, irrespectively of his own estate or interest; and such feoffment disseised all the estates in remainder or in reversion de- pendent upon his seisin and converted them into rights of entry. Feoff - ment by tenant in tail operated rightfully at common law, but was provided against by the statute De donis, giving a writ of formedo n to the issue or reversioner or remainderman. It tlierefore took away the right of entry and left only the right of action under the stat- ute. * * * An entry on the land within the time allowed by law restored th e seisin , and, if made by the tenant of a particular estate, it restored or revested the estates in remainder or reversion, which were dependent upon the same title. H ence a right of e.ntrv was sufficient to preser^ ^e a contingent remainder. It is to be observed that the entry of the dis- seisee before his right is barred by lapse of time restores him to his former title by r elation back. He may therefore maintain an action wa/ or other turning the tenant o n t ^f ^i^ l-pnnrp anrl iisurpiDg his pla ce and feudal relation .' Taylor v. Horde, 1 Burr. 60, 107 (1757). How this was accomplished originall.v, unless the lord conspired with the disseisor, we do not know. It is sufficient for our purpose that disseisin was early possible, and that every wrongful taking of seisin from the real owner was not necessarily a disseisin. Thati only was disseisin where some one en - tered upon and ousted one who had taken actiial possession under claim o f t reenold.' Certainly this was true of actual disseisin, though there was a disseisin by election, where persons, to avail themselves of the remedy by assize, frequently were allowed to suppose or admit themselves to be dis- seised when they were not. Whatever may be true of the law of to-day, there was in the early common law a clear distinction between disseisin an d o ther forms of adverse possession ; for unless actual seisin was interfered with, or could be regarded as interfered with for the purposes of the action, there was no disseisin, though there might perhaps be an abatement or some other form of adverse possession." Geo. P. Costigan, Jr., "Conveyance of Lands by Disseisee," 19 Harv. Law Rev, 268, 260. Ch. 1) POSSESSORY TITLES 5 against a trespasser for a wrong done between tlie date of disseisin and entry. And even before a change in the law enabled after-acquired freehold estates to be devised, the entry of the disseisee validated a devise of lands made while he -was out of possession. The ri.qht of entry , arising upon a disseisin, was lost in certa in event^ : as by the seisin being cast by descent upon the heir of th e disseisor ; which was technically called a descent cast ; also by an alien- ation of the fee by the disseisor to another, which was called a disco n- t inuance of the possession. On the other hand, the right of entry might be kept alive against a descent cast by the process of continua l claim. Where the right of entry was lost there remained a mere right of action, to be prosecuted within certain limits of time in the form of real action provided for the circumstances of the case. The doctrines concerning rights of entry and of action and the pro- ceedings in real actions were highly technical and elaborate, and formed a large and complicated branch of the law of real property, until the amendments of the law made by the Real Property Limitation Act. 1833.^ By that statute, section 36, real actions were put an end to with three exceptions, which were subsequently abolished, and the action of ejectmenj;^ or as it is now known, an a ction for the recovery of land , is the appropriate remedy at law for the recovery of the possession of land. By the same statute the right of entry or action is no longer defeated by a descent cast or a discontinuance (section 39) ; and it is exempted from all other casualties e xcept lapse of time . But it mus t be prosecuted within twelve years next after the accrual of the right , u nless the person entitled is under disabili ty. Law ofi Property in Land (Randall's Ed.) p. 40 et seq. BUTLER & HARGRAVE'S NOTE TO COKE UPON LITTLETON. The different degrees of title which a person dispossessing another of his lands acquires in them in the eye of the law (independently of any anterior right), according to the length of time and other circum- stances which intervene from the time such dispossession is made, form different degrees of presumption in favour of the title of the dis- possessor; and in proportion as that presumption increases, his title is strengthened ; the modes by which the possession may be recovered vary; and more, or rather different proof is required from the person dispossessed, to establish his title to recover. Thus, if A. is disseised by B. while the possession continues in B. it is a mere naked possession, unsupported by any right, and A. may restore his possession, and put a total end to the possession of B. by an entry on the lands, without any previous action. If B. dies, the possession descends on the heir by act of law. In this 6 OHIGESTAL TITLES (Part 1 case, the heix„,cpjue5-lCLlhe.laud^ a lawful ..title, and acquires, in the eye of the law, an apparent right of possession; which is so far good against the person disseised, that he has lost his right to recover the possession by entry, and can only recover it by an action at law. The actions used in these cases are calle d Possessory Actions, and the original writs by which the proceedings upon them are instituted, are _ca ned Writs of . Entry -^ But if A. permits the possession to be ivithheld from him, beyond a certain period of time, without claiming it, or suffers judgment in a possessory action to be given against him by default, or upon the mer- its ; in all these cases, B.'s title in the eye of the law is strengthened, and A. can no longer recover by a possessory action, and his only remedy then is by an action on the right. These last actions are called Droiturel Actions, in contradistinction to Possessory Actions. They are the u ltimate resource of Jthe person disseised.; so that, if he fails to bring his writ of right within the time limited for the bringing of such writs, he is remediless, and the title of the dispossessor is complete. The original writs by which droiturel actions are instituted are called Writs of Right. The dilatoriness and niceties in these processes, introduced the Writ of Assize. The invention of this proceeding is attributed to Glanville, Chief Justice to Henry 11. (See Mr. Reeves's History of the English Law, Part I, ch. 3.) It was found so convenient a remedy, that per- sons, to avail themselves of it, frequently supposed or admitted them- selves to be disseised, by acts which did not in strictness amount to a disseisin. This disseisin, being such only by the will of the party, is called a disseisin by election, in opposition to an actual disseisin : it is only a disseisin as between the disseisor and the disseisee, the person, thus propounding himself to be disseised, still continuing the freeholder as to all persons but the disseisor. The old books particularly the Re- ports of Assize, when they mention disseisins, generally relate to those cases where the owner admits himself disseised. (See 1 Burr. Ill; and see Bract, lib. 4, cap. 3.) As the processes upon writs of entry were superseded by the assize, so th e assize and all.jQlher _real acti ons have been since supersed ed by:, thejnodern process of ejectment. This was introduced as a mode of trying titles to lands in the reign of Henry VH. From the ease and expedition, with which the proceedings in it are conducted, it is now become the general remedy in these cases. Booth, who wrote about the end of the last century, mentions real actions as then worn out of use. It is rather singular that this should be the case, as many cases must frequently have occurred, in which a writ of ejectment was not a sufficient remedy. Within these few years past, some attempts have been made to revive real actions ; the most remarkable of these are the case of Tissen v. Clarke, reported in 3 Wils. 419, 541, and that of Carlos and Shuttlewood v. Lord Dormer. The writ of summons in this last case is dated the 1st day of December, 1775. The summons to the Ch. 1) POSSESSOKY TITLES 7 four knights to proceed to the election of the grand assize, is dated the 22d day of May, 1'780. To this summons the sheriff made his return; and there the matter rested. The last instance in which a real action was used, is the case of Sidney v. Perry. In this case, it was adjudged by De Grey, Chief Justice, and all the other judges, that the defendant, in a writ of right, by proving his actual possession, without any evi- dence of his title, put the demandant to the necessity of producing and proving his title, a point, of which, till that decision, some doubts were entertained. That part of Sir William Blackstone's Commentary which treats upon real actions is not the least valuable part of that ex- cellent work. Note (1) to Coke upon Littleton, § 239a.2 SMITH v. BURTIS. (Supreme Court of New York, 1810. 6 Johns. 197, 5 Am. Dec. 218.) This was an a,ction of eject ment, brought to recover the possession of a^house and lot of land, in the city of New York. The cause was tiied at the sittings, held in the city of New York, the 12th' of June, 1809, before Mr. Justice Spencer. The plaintiff proved, that Isaac Teller entered into possession of the. 2 In Leach v. Jay, L. R. 9 Ch. D. 42 (1S78), a devisee sought to recover possession of certain lands. The will provided: "I also bequeath and de- vise to him" (the plaintiff) "all real estate (if any) of' which I may die seised." For some time prior to the death of the testatrix, the lands in ques- tion had been in possession of others who claimed to own same. The court held that the testatrix was not "seised" and that therefore the plaintiff did not succeed to the lands. James, L. J., said: "This lady, for some reason or motive of her own, or for no reason, chose to use one of the most tech- nical words in our law. The word has acquired no other meaning than its technical meaning ; it has never got into ordinary use ; therefore we are not at liberty to attribute to it any other meaning merely because we sup- pose that the testatrix did not know the true meaning of the word. It has been argued in favor of the appellant that seisin now has lost its dis- tinctive meaning, that all its consequences have long ceased to exist, and therefore that you cannot predicate of anything that a testator died seised of it in any other sense than that it was part of his real estate. I ,am of opinion that there are such things as seisin and disseisin still. Mr. Joshua Williams says in his late book on Seisin: 'If a person wrongfully gets pos- session of the land of another, he becomes wrongfully entitled to an estate In fee simple, and to no less estate in that land; thus, if a squatter wrong- fully incloses a bit of waste land and builds a hut on it and lives there, he acquires an estate in fee simple by his outi wrong in the land which he has inclosed. He is seised, and the owner of the waste is disseised. It is true that, until by length of time the statute of limitations shall have confirmed his title, he may be turned out by legal process. But as long as he remains he is not a mere tenant at will, nor for years, nor for life, nor in tail; but he has an estate in fee simple. He has seisin of the freehold to him and his heirs. The rightful owner in the meantime has but a right of entry, a right in many respects equivalent to seisin; but he is not actually seised, for if one person is seised another person cannot be so.' " As to the meaning of seisin in connection with covenants for title, com- pare Marston v. Hobbs, 2 Mass. 433, 3 Am. Dec. 61 (1807), and Mercantile Trust Co. V. South Park Co., 94 Ky. 271, 22 S. W. 314 (1893). •8 ORIGINAL TITLES (Part 1 premises in question, about the year 1765, and erected a house thereon, in which he Hved, with his family, from 1765 to 1775, when he died in possession. At the time of his death, he left five children, John, his eldest son, and heir at law, Henry, his second son, one of the lessors, Mary, (who intermarried with Peter Thalkimer,) Remsen, and Isaac, other lessors of the plaintiff. The widow and children remained on the premises until the British army took possession of New York, when they left the place, and went to Hudson. John the eldest son, died in 1777, aged about 14 years; and Henry was about 8 years old when his father died. After the British troops entered the city of New York, (in 1776,) they took possession of, and occupied the buildings and prem- ises, and on application of one of the creditors of Isaac Teller, permit- ted him, for thirty guineas, to take possession of, and appropriate to his own use, the materials of the buildings, which were sold by him; out of the proceeds thereof he retained the amount due to him; and, a few years since, paid the residue to Henry, one of the lessors. The possession of the premises remained vacant during the war, and until 1'795, when they were taken possession of by the defendants, or the persons under whom they claim. The defendants offered to prove, that Isaac Teller, under whom the lessors claimed, had no title to the premises in question ; and that the defendants had a good and complete title to the premises, which was not derived from Isaac Teller, or his children. This evidence was objected to, by the plaintiff's counsel, on the ground that there having been a descent cast upon the immediate heirs of Isaac Teller, who died in possession ; and that the possessory title being the only question in an action of ejectment, the plaintiff must re- cover. The judge overruled the evidence offered by the defendants ; and a verdict was thereupon found for the plaintiff'. A motion was made to set aside the verdict, for the misdirection of the judge, in overruling the evidence offered by the defendant, on the ground of a descent being cast ; and aleo on account of newly discov- ered evidence. Affidavits were read, stating the evidence discovered since the trial ; but as the opinion of the court related only to the other ground, it is unnecessary to state it. Kent, C. J., delivered the opinion of the court. The first and most ^ impo rtant question raised in this case is, whether a descent was cast,^ upon the death of Isaac Teller, so as to toll the entry of the true owner. The counsel, upon the argument, entered into a discussion of the general doctrine of disseisin ; but I do not think it will be necessary to pursue at large that inquiry. All the books seem to agree that the an- cient learning on this subject has become abstruse. Disseisin, in the age of Bracton, was considered in an extensive sense, and far beyond the idea which was first applied to it. Disseisin, by election, in opposi- tion to actual disseisin, was introduced very early, and became very Ch. 1) POSSESSORY TITLES 9 prevalent, in order to extend the remedy by writ of assise, which was devised by Glanville, in the reign of Henry II. It must, therefore, be difficult, in many cases, to know what species of disseisin was intended, though it is said that the old books, and particularly the book of assise, when they mention disseisins, generally relate to disseisins by election. The present question appears, however, to lie in a narrower compass ; and by confining ourselves to a few plain and familiar authomies_, we shall discover the principle, that the doctrine of descent cas t applies onl y to a seisin^_commenc ing by wro ng, a nd f ounded on an ouster of the_tru e owner. Whatever may be the meaning of disseisin, in other cases, its meaning, when applied to the subject before us, embr a ces a tortious ouster. There must be a disseisin in fact. The rightful owner must have been expelled, either by violence, or by some act which the law regards as equivalent in its effects. "Descents in fee, which toll entries," says Littleton, (section 385,) "are, as if a man seised of certain lands, is by another disseised, and the disseisor hath issue and dieth of such estate seised ; now the lands descend to the issue of the disseisor, by course of law, as heir unto him. And because the law casts the lands upon the issue, by force of the de- scent, the entry of the disseisee is taken away." And in the next sec- tion, Littleton gives a like definition of a descent in tail, which tolls an entry. Both he and Gilbert have a chapter devoted to the subject, and they always speak or refer to a descent founded on a seisin commenc- ing by wrong. "In descents which toll entries, it behoveth," says Little- ton, (section 387,) "that the man die seised in his demesne as of fee." A seisin in his demesne as of fee, is the strongest and highest estate which the subject can enjoy. It wo uld then be very idle to talk of a descent cast, in the case of a rightful seisin in fee^ for there would be no ri^t of entrj to be tolled in such a case. The doctrine can only exist and apply in the case of a tortious seisin. At the common law, if the disseisor, abator, or intruder, (and these are mentioned by Coke, as the only wrongful acts of seisin, which will cast a descent,) had died seised soon after the wrong done, the dis- seisee and his heirs were barred of their entry. Co. Litt. 238, a. This was deemed too harsh a rule, and the statute of 32 Hen. VI II-, c. 33, was passed, saving the right of entry to the disseisee, unless the dis- seisor had been in peaceable possession for five years next after the disseisin by him committed. This statute shows pretty plainly, what species of disseisin was then understood as applicable to this subject. It is entitled, "An act that wrongful disseisin is no descent in law ;" and it recites that whereas "divers persons have heretofore, by strength, and without title, entered into lands, and wrongfully disseised the rightful owner, and so being seised by disseisin, have thereof died seis- ed, by reason of which dying seised, the disseisee or such other persons, as before such descent might have lawfully entered, were thereby ex- cluded of their entry and put to their action." It is therefore enacted, "that the dying seised of any such disseisor of any lands, having no 10 ORIGINAL TITLES (Part 1 right or title therein, should not be taken or deemed any such descent in the law, for to toll or take away the entry of any person, which, at the time of the descent, had good and lawful title of entry, except," etc. The disseisin intended by this act, was one founded on a tortious ex- pulsion of the true owner. This is giving the term its primitive and genuine meaning; and in this sense it is also used, when applied to a descent cast. A mere entry upon another is .no, disseisin, unless it be, accompanied with expulsion, or ouster from the freehold.. Disse isin jS^ is"an estate gained by wrong and injury ;. and therein it differs froni_ dispossession, which may be by right or wrong. This is the uniform language of the best authorities, from the time of Littleton. Litt. § 279; Co. Litt. 3, b, 18, b, 153, b, 181, a; Cro. Jac. 685; 1 Salk. 246, n. 2 ; 1 Burr. 109. This tortious seisin, the lessors of the plaintiff were bound to show affirmatively, if they would put themselves upon the strict and ungra- cious right of a descent cast. A_i)eaceable entry upon land, apparently, \^cant, furnishes, per se, no presumption of wrong. The benign and legal intendment is otherwise. According to Lord Holt, (1 Salk. 246,) a bare entry on another, without an expulsion, makes such a seisin only, that the law will adjudge him in possession that has the right. This court has frequently recognized the same rule, tjiat an entry not appearing to be hostile, was to be considered an entry under the_ ti tl e ^ "3^ "of the true owner. It lay, then, with the plaintiff to show his entry not congeabie, or to show a subsequent disseisin ; for he entered upon vacant lands. We may infer title, from his ten years' possession, suffi- cient to put the tenant upon his defence ; but we ought not to infer a tortious entry, or an actual ouster, sufficient to bar every defence. This would be a most rigorous conclusion, for it makes tlie ancestor or the plaintiff" a disseisor ; it tolls the entry of the true owner ; it shuts out his defence, and drives him to his writ of right, which final remedy is now subject to the limitation of 1rv\'enty-five years. The subsequent use of the land by Teller was no disseisin. The case of Matheson v. Trot, 1 Leon. 209, is a strong authority on this point. In that case, Henry Denny, the heir at law, when he came of age, claimed and sued out livery, or restitution of lands, out of the hands of the feudal lord, who had seised them as guardian for the infant. He then leased them for years, reserving a rent, and for years received the rents and profits from his tenant, and died so seised. This was held not to be a requisite seisin to cast a descent, though the court ad- mitted, that his lessee had gained a wrongful possession in fee. If here was not, during all this time, an actual pedis possessio by the heir, (though the case says, he once walked over the lands with his tenant,) yet he held and enjoyed the lands by his tenant; and the case showed conclusively, that he held them without title, for the lands had been devised in fee to his younger brother. This case, I think is, in every view, much stronger in favor of a descent cast, than the one before us. As it was, therefore, ruled, at the trial, that a descent was cast, and Ch. 1) POSSESSORY TITLES 11 the evidence offered by way of defence, inadmissible, the court are of opinion, that there ought to be a new trial, with costs to abide the event of the suit. New trial granted.* SECTION 2.— EFFECTS OF POSSESSION ASHER V. WHITLOCK. (Court of Queen's Bench, 1865. L. R. 1 Q. B. Ejectment for a cottage, garden, and premises, situate at Keysoe Row, in the parish of Keysoe, in the county of Bedford; the writ stated that the female plaintiff claimed possession as heir-at-law of Mary Ann Williamson, an infant deceased. The defendant defended for the whole. At the trial before Cockburn, C. J., at the last Bedfordshire Spring Assizes, the following facts appeared in evidence : About Michaelmas, in the ye§x— LS42, Thomas Williamson enclosed from the waste of a manor a piece of land by the side of the highway ; and in 1850 he en- closed more land adjoining, and built a cottage; the whole being the land as described and claimed in the writ. He occupied the whole till his d eath in I860 . By his will he devised the whole property, describ- ing it as "a cottage and garden, in Keysoe Row, in which I now dwell," to his wife Lucy Williamson, for and during so much only of her natural life as she might remain his widow anH nnmnrnVfl ; and from and after her decease, or second marriage, whichever event might first happen, to his only child JM arv Ann Williamson, m fee . After the death of Thomas Williamson, his widow remained in possession with the daughter, and in April 1861 married the defendant; and from that time they all three resided on the property till the death of the daugh- ter, aged eighteen years, in February 1863. On her death, the defendant and his wife, the widow of the testator, continued to reside on the prem- ises ; the widow died in May 1863, and the defendant still continued to occupy. The f emak pla intiff is the heir-at-la w of the testator's daught er, Mary Ann Williamson. The writ was issued 11th of April 1865. These facts being undisputed, the Chief Justice directed a verdict for the plaintiff for the whole of the property claimed ; with leave to move 3 See. too. Slater v. Rawson. 6 Mete. (Mass.) 439 (1843). Section 374 of the New York Code of Civil Procedure provides that '^the, jrjghLjQjLa person to the possession oi real property is not impaired. or al.-." fected, by a descent being cast, in consequence of the death of a person in possession of the property." Legislation to the same effect is found in a number of states. See 1 Stimson's Am. St. Law, § 1404. ^ 12 ORIGINAL TITLES (Part 1 to enter the verdict for the defendant, on the ground that the testa- tor had no devisable interest in any part of the property. A rule nisi was afterwards obtained to enter the verdict for the de- fendant, on the ground that no title in tlie plaintiffs was shown to either portion of the land enclosed. CocKBURN, C. J. I am of opinion that this rule should be discharg- ed. The defendant, on the facts, is in this dilemma ; either his poss es- sion was adverse, or it was not . If it was not adverse to tlie devisee of the person who enclosed the land, and it may be treated as a contin- uance of the possession which the widow had and ought to have given up on her marriage with the defendant, then, as she and the defendant came in under the will, both would be estopped from 'denying the title of the devisee and her heir-at-law. But assuming the defendant's pos- session to have been adverse, we have then to consider how far it operated to destroy the right of the devisee and her heir-at-law. Mr. Merewether was obliged to contend that possession acquired, as this was, against a rightful owner, would not be sufficient to keep out every other person but the rightful owner. But I take it a<; rlearly e^tah- l ished that possession is ^ood against all the world except the pers on who can show a good title ; and it would be mischievous to change this established doctrine. In Doe v. Dyeball, Mood. & M. 346 (E. C. L. R. vol. 22), one year's possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same eft'ect. Suppose the person who originally enclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him, "You have no more title than I have, my possession is as good as yours," surely eject- ment could have been maintained by the original possessor against the defendant. All the old law on the doctrine of disseisin was founded on the p rinciple that the_ disseisor's title was good against all but the disseisee. It is too clea r to admit of doubt tliat, if the devisor had bee n t urned out of po s session he could_bavp_ m aintained ejectment.^ What is the position ot the devisee .'' There can be no doubt that a man has a right to devise that estate which the law gives him against all the world but the true owner. Here the widow was a prior devisee, but durante viduitate only, and as soon as the testator died the estate be- came vested in the widow; and immediately on the widow's marriage the daughter had a right to possession; the defendant, however, an- ticipates her, and with the widow takes possession. But just as he had no right to interfere with the testator, so he had no right against the daughter, and ha A she lived she could have brought ejectment: . al- t hough she died without asserting her right, the same right belongs to h er heir. Therefore I think the action can be maintained, inasmuch as the defe ndant had not acquired any title by l ength of posses sion. The devisor rmghT have brought ejectment, his right of possession being passed by will to his daughter, she could have maintained eject- Ch. 1) POSSESSORY TITLES 13 ment, and so there fore can her heir, the female plaintiff . We know to what extent encroachments on waste lands have taken place; and if the lord has acquiesced and does not interfere, can it be at the mere will of any stranger to disturb the person in possession ? I do not know what equity may say to the rights of different claimants who have come in at different times without title; but at law I think the right of i he ori ginal posse ssor is clear. On the simple ground that possession is good title agamst all but the true owner, I tliink the plaintiffs entitled to succeed, and that the rule should be discharged. Mellor, J. I am of the same opinion. It is necessary to distinguish between the case of the true owner and that of a person having no title. T he fact of possession is prima facie evidence of seisin in fee. The law gives credit to possession unless explained ; and Mr. Mere- wether, in order to succeed, ought to have gone on and shown the tes- tator's title to be bad, as that he was only tenant at will, but this he did not do. In Doe v. Dyeball, Mood. & M. 346 (E. C. L. R. vol. 22), pos- session for a vear only was held sufficient against a person having no title. In Doe'v. Barnard, 13 Q. B. 945 (E. C. L. R. vol. 66), 18 L. J. (O. B.) 306, the plaintiff did not rely on her own possession merely, but showed a prior possession in her husband, with whom she was unconnected in point of title. Here the first possessor is connected in title with the plaintiffs ; for there can be no doubt that the testator's interest was devisable. I n the common case of proving a claim t o landed estate under a will, proof of the will and of possession or re - ceipt oi rent s by the testator is alwavs prima facie sufficient, wit hout going on to show possession for more than twenty year s. I agree with the Lord Chief Justice in the importance of maintaining that possession is good against all but the rightful owner. Lush, J., concurred. -74^ ffU^^^U^ O^^. Rule discharged.* ^ ^i-^~f PERRY V. CLISSOLD. (Privy Council. [1907] App. Cas. 73.) Lord Macnaghten.-'^ This was an appeal from a judgment of the High Court of Australia^ dated June 20, 1904, reversing a judgment of the Supreme Court of New South Wales. It raised a question under the Lands for Public Purposes Acquisition Act, 1880 (44 Vict. No. 160), now superseded by the Public Works Ac t, 1900, which con- solidates the law on the subject. The act of 1880 in its preamble recites that it is expedient to make provision for the acquisition on behalf of the Crown of lands required * See, also, Hubbard v. Little, 9 Cush. (Mass.) 475 (1S52); Illinois & St. Louis Railroad & Coal Co. v. Cobb, 94 111. 55 (1879). 5 The statement of facts is omitted. The case sufficiently appears from the opinion. ecu {XMaha^i fO^r>9XA^Q/0x / ■■ -j-it. 14 ORIGINAL TITLES (Part 1 for certain purposes, including, among others, "sites for public schools," and "to provide compensation for lands so acquired." The following are the m aterial provisions of the Ac t. When the Governor sanctions the acquisition of any land for a school site he may, by notification in the Gazette, declare that such land, if private property, has been resumed for such purposes. Upon such publication the land is forthwith v ested in the Minister of P ublic Instruction and his successors on behalf of the Crown^ for t he p urposes of the Act, fo r an estate of inheritance in fee simple in pos - s ession freed and discha rged fro m all other estates and interests. The owners of the land or the persons who, but for the provisions thereinbefore contained, would have been such owners are entitled to receive such sum of money by way of compensation . for the land of which they have been deprived under the Act as may be agreed upon or otherwise ascertained under the provisions thereinafter contained. The estate and interest of every person entitled to land so resumed, or any portion thereof, and whether to the legal or equitable estate therein, is by virtue of the Act deemed to have been as fully and effectually conveyed to the Minister as if the same had been conveyed by means of the most perfect assurances in the law. Every such esta te a nd interest uponthe publication _of such notification as aforesaid js t aken to have been converted intoa claim for compensation in pursu - ance of the provisions thereinafter co n taine d, and every person upon asserting his claim as thereinafter provided, and making out his title in respect of any portion of the resumed land, is entitled to compensa- tion on account of such resumption in manner thereinafter provided. Every person claiming compensation in respect of any land so re- sumed is, within ni nety da ys_froni the publication of such notification or at any time afterwards, within such time as a judge of the Supreme Court appoints in that behalf, to s erve a notice in writing upon th e Minister and a like notice upon the Crown solicitor, "which notice," j t i s declared, "shall seTTorth the nature of the estate or interest of the c laimant in such land together with anj^bstrart of hk titip " Section 13 is in the following terms : "Within sixty days after the receipt of every such notice of claim by the Crown solicitor he shall f orward the same , together with his report thereon, to the Minister, who shall thereupon (unless no prima facie case for compensation shall have been disclosed) c ause a valuation of t he land. or of t)-) ^ p';fai-p- nr int erest of the cl a imant therei n to be rnade in accordance with the pro- visions of this A ct, and shall inform the claimant, as soon as practica- ble, of the amount of such valuation by notice in the form of the Sec- ond Schedule hereto." By notification published in the Gazette of July 17, 1891, a piece of y^ . . land containing two acres and three perches at Canterbury, in the AJ^^ I county of Cumberland, was re sumed for ajpublic sch ool site- The land ^ I \ was at the time in the possession of one Fredrick Clissold. Notice of the resumption was given to Clissold on July 22, 1891 ; but nothing /. Ch. 1) POSSESSORY TITLES 15 further was done then. Cl issold died shortly afterwards, and his wi ll was proved on May 5, 1892. In May, 1902, under an order of the Supreme Court, the responden ts who are the pre sent trustees of Clissold's will , and of whom three are his surviving executors, served notice of their claim to compensation in respect of the land resumed by the notification of July 17, 1891, stating that the claimants were the executors of Frederick Clissold, "who at the date of resumption was in possession of such land as the owner thereof, and in receipt of the rents of such lands, and had a t itle thereto bv possess ion." It appeared from the papers which were forwarded with the claim that in the year 1881 Frederick Clissold entered into possession of the land, which was then open and vacant, and enclosed it by a substantial fencing, and that ever since the enclosure, up to the time of resump- tion, Clissold held exclusive possession of the land without notic£ -Qf a ny adverse claim , and let it to diflFerent tenants and received the ren ts f or his own use and benefit, and d ul y paid all rates and taxes in respect o f the land which stood in his~riatTie in t he rate-books of the municipa l- i ty of Canterbury. The Minister refused to entertain the claim to compensation. The Supreme Court upheld the view of the Minister. The High Court reversed this decision, and g^r anted a mandamus requiring the Minister to cause a valuation to be made. The only question on this appeal was whether or not a prima facie case for compensation had been disclosed. On the part of the Minister it was contended that, upon the plain- tiffs' own showing, Clissold was a mere trespasser, without any estate or interest in the land. Their Lordships are unable to agree with this contention. It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come for- ward and assert his title by process of law within_ the period prescr ibed by the provisions of the Statute of Limitations applicable to the case, hjs ri ght is forever extinguishe d, amL th^ po^^pssnry owner arq^J^'P'^ a n absolute title. On behalf of the Minister reliance was placed on the case of Doe v. Barnard, 13 O. B. 945, which seems to lay down this proposition, that if a person having only a possessory title to land be supplanted in the possession by another who has himself no better title, and afterwards bring's an action to recover the land, he must fail in case he shows in the course of the proceedings that the title on which he seeks to re- cover was merely possessory. It is, however, difficult, if not impos- sible, to reconcile this case with the later case of Asher v . Whitlock, L. R. 1 Q. B. 1, in which Doe v. Barnard was citeHl The judgment of Cockburn, C. J., is clear on the point. The rest of the Court con- 16 ORIGINAL TITLES (Part 1 curred, and It may be observed that one of the members of the Court in Asher v. Whitlock (Lush, J.) had been of counsel for the successful party in Doe v. Barnard. The conclusion at which the Court arrived in Doe v. Barnard is hardly consistent with the views of such eminent authorities on real property law as Mr. Preston and Mr. Joshua Wil- liams. It is opposed to the opinion of modern text-writers of such weight and authority as Professor Maitland and Holmes, J., of the ■ Supreme Court of the United States. T heir Lordships are of opinion that it is impossible t p say that no pr ima facie case for compensation has been disclose d . They do not think that a case for compensation is necessarily ex- cluded by the circumstance that under the provisions of the Act of 1900 the Minister acquired not merely the title of the person in possession as owner, but also the title, whatever it may have been, of the rightful owner out of possession, who never came forward to claim the land or the compensation payable in respect of it, and who is, as the Chief Justice says, "unknown to this day." The Act throughout from the very preamble has it apparently in contemplation t hat compensation would be pavable to every per gon deprived of the land resumed for public purposes . It could hardly have been intended or contemplated that the Act should have the effect ^ of shaking titles which but for the Act would have been secure, and would in process of time have become absolute and indisputable, or that the Governor, or responsible Ministers acting under his instruc- tions, should take advantage of the infirmity of anybody's title in order^ to_ acquire his land for nothing. Even where the true owner, after d iligent inquiry, cannot be found the Act contemplates payment of th e c ompensation into Court to be dealt with bv a Court of Equit y. It only remains for their Lordships to express their opinion that the valuation to be made should be a valua tion of the land as at the d ate of the notification of resumption. When the valuation is made it will be for the claimants to take such proceedings as they may be advised to recover the amount, unless the Minister thinks fit to pay them or to pay the money into Court. Eor these reasons their Lordships humbly advised His Majesty that the appeal should be dismis sed, and ordered the appellant to pay the costs of the appeal.^ 6 See Ex parte Winder, 6 Ch. D. 696 (1S77). See, also, People v. Shearer, 30 Cal. 645 (1866), where the state claimed the power to tax the possessory interest of an occupant of public land of the United States. 'f,^%^^''» Ch. 1) POSSESSORY TITLES IT SOHIER V. COFFIN. (Supreme Judicial Court of Massachusetts, 1S69. 101 Mass. 179.) Writ of entry against John T. Coffin and tlie heirs of John C. Parkinson, to recover a lot of land in Brighton. Coffin was defaulted. Trial in this court, before Foster, J., who reported the case substantial- ly as follows : To show title, the demandants, among other evidence, put in and proved a deed of the demanded premises from William F. Otis to John T. Coffin, dated May 9, 1857, and a m.ortgage deed fr om said Coffin to themselves, dated September 12, 1857, to secure the payment of $5000; both duly acknowledged and recorded. The heirs of Parkin- son offered no evidence of any title by deed, or any conveyance of the premises, but c laimed title by adverse possessio n. There was evidence tending to show that John C. Parkinson was in po ssession and occupation of the premises for many years prior to his death in January, 1857, claiming title, and that in 1842 Coffin knew that he claimed title ; that a few days after John C. Parkinson's death, Co ffin's agent called upon Parkinson's hpirc; anri desired them to leave t he premises , and they insisted that the premises were theirs ; that afterwards and sometime before giving the deed under which the de- mandants claimed, Coffin himself called upon Parkinson's heirs, and wanted them to leave the premises , and they told him personally that they owned the land; that Coffin e ndeavored to buy them off, and they refused his overtures; and that the mortgage deed of September 12, 1857, from Coffin to the demandants, under which they claimed, was executed, acknowledged and delivered in Boston. At the close of the evidence, the presiding judge proposed to instruct the jury on the effect of disseisin as follows: "If, after the death of John C. Parkinson while Coffin owned the fee, the heirs of Parkinson were in actual possession of the demanded premises claiming a fee, and this was known to Coffin ; and they continued in such possession at the date of the mortgage deed from him to the demandants; then Coffin was disseised so that no tjiing pa ssed by his deed, and the demandant s cannot recove r." Thereupon the demandants declined to go to the jury, and submitted to a verdict for the heirs of Parkinson, and the jury found specially for the latter upon the sole ground that the deed to the demandants pas sed no ti tle. To this ruling the demandants excepted, and the presiding judge reserved for the full court the question wheth- er the ruling was correct. Chapman, C. J. The demandants cl aim title unde r a mortgage from I / Coffin, and therefore they have joined Coffjn in the suit, as they are permitted to do by the Gen. St. 1860, c. 140, § 8, though Coffin is not a tenant in possession. The t enants in possession are the h eirs of J olin C. Parkinson, who died in Tanuary. 1857 . A few days after- Aig.Peop. — 2 4 s^ 18 ORIGINAL TITLES (Part I wards the agent of Coffin called upon them and desired them to leave the premises. They refused to quit, and claimed title. Afterwards Coffin himself called upon them and wanted them to leave the prem- ises. They again refused, claiming title. He endeavored to buy them off, and they refused his overtures. T hey were thus in possession of t he demanded premises, and claiming title adversely to him. There is nothing to show that they entered under him or by his permission. In- deed it is stated that their father was in possession for many years, claiming title, and that this was known to Coffin in 1842. While they were thus in possession, namely, on September 12, 1857, Coffin made the mortgage to the demandants. I f he had a right of entry, he mi^ ht h ave entered upon the land and there delivered the deed, ^^f^ \}\'^ title would have passed . But as he didjiot,_enter, but delivered the deed while he was out of possession, and the tenants were holding the land adversely, his deed wasjjioperatwe to pass the_ _title. Warner v. Bull, 13 Mete. 1. All the grantees could acquire was a right to bring a n a ction for possession in the name of their granto r.!. Cleav eland v. Flagg, 4 Cush. 76. The ruling is based upon the assifrfi^iSh that the title of Coffin was good, and that the tenants were mere disseisors; and upon that assumption it was correct. Much more would the deg d of Coffin to the demandants be inoperative if no title had ever passed to Coffin ; for in such case no action would lie even in Coffin's name. It would be necessary to sue in the name of Otis or some other person who had good title. The facts stated in the report do not present a case of mere disseisin at the election of Coffin; but this was an actual advers e occupation . and holding him out. See Washb. Real Prop. (3d Ed.) bk. 3, c. 2, § 7. Judgme nt for the ten ants on the verdict.^ 7 A., the paper title own er of certain lands, sues B. in an action o f Jrover for the conversion ol stone and gravel dug out of and taken from said lands. On the trial it develops that B. has bee n in adverse possession of the tract from which the stone and gravel were taken, thou"gB lor ~a' period less than that of the statute of limitations. Can the action be maintained? Mather v. Ministers of Trinity Church, 3 Serg. & R. (Pa.) 509, 8 Am. Dec. 663 (1817). S uppose it had >^^ " ^i ^yhn ^^""^ tnirt^n thc> stone and gravel. Could A. h ave s ued hi)? in trespasg q uare clausum f regit? See "Wheeler v. Hotchkiss, 10 Connr22o' (1834). -A very interesting question is presented when the ousted owner recove rs ossession an d sues to re cover speci fically for crops and other things severed fronfthe land by tile "adV«n^"t5^§essorr"See Liford's Case, 11 Co. 46b, 51b (161.5); Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462 (1870); Hooser v. Hays, 10 B. Mon. 72, 50 Am. Dec. 540 (1849). ^y^lOAJ, /\j»^<,jgn>*^ 4-^rO ^u^u. ^s^ />-t<^w2/5-6t^n^ Cr*-^ ) Ch. 1) POSSESSORY TITLES 19 SECTION 3.— LAPSE OF TIME STAT. 3 EDW. I, c. 39 (1275). And forasmuch as it is long time passed since the writs undernamed were limited; it is provided, T hat in conveying a descent in a writ o f right^ none shall presume to declare of the seisin of his ancestor fur- ther, or beyond the ti me of King Richard,..u ncle to King Henry, father to the King that now is; and that a writ of Novel disseisin, of Parti- tion, which is called Nuper obiit, 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 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 hereto- fore they have been used to be pleaded. STAT. 21 JAC. I, c. 16, §§ 1, 2 (1623). I. 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 descender, fo rmcdon in remaind er, and f ormedon in reverfor, 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 pur- sue any such writ, shall__be sued and takeii ^vithin twejity 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 whatsoever, 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 descended or fallen, and at no time after tlie 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 entrv^ accrued : (4) and that no person or persons shall 20 ORIGINAL TITLES (Part 1 C^nr^K i 4 -,»^ ^^^^^ -.^^-V-t-'*-^ 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 hereafter first descend or accrue to the same ; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded 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 silch 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 mentis, imprisoned 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. HOW. ANN. ST. MICH. 1913, c. 383. Sec. 1. After the thirty-first day of December, in the year of our Lord eighteen hundred sixty-three, no person shall bring or maintain any action for the recovery of any lands, or the possession thereof, or make any entry thereupon, unless suclLaction is commenced or entry made within the time herein limited therefor, after the right to make such entry or to bring such action shall have first accrued to the plain- tiff, or to some person through whom he claims, to-wit: First. Within five years, where the defendant claims title to the land in question, by or through some deed made upon a sale thereof by an executor, administrator or guardian, or by a sheriff, or other proper ministerial officer, under the order, judgment, decree or process of a court, or legal tribunal of competent jurisdiction within this state, or by a sheriff upon a mortgage foreclosure sale ; or through a devise in any will which shall have been probated in this state for fifteen years, during which period no suit in chancery has been brought to test the validity of such devise : Provided, that in_cases whe re such fifteen year period has already elapsed such rights of entry or action shall be barred after two years from the passage hereof, or in case such right has not accrued, then after two years from the accruing thereof ; Second. Within ten years, where the defendant claims title under a deed made by some officer of this state, or of the United States, au- thorized to make deeds upon the sale of lands for taxes assessed and levied within this State ; Third. Within fifteen years in all other cases. Ch. 1) POSSESSORY TITLES 21 Sec. 5. If at the time when any right of entry, or of action, as aforesaid, shall first accrue or have accrued, the person entitled to such entry or action shall be, or shall have been, within the age of twenty- one years, or a married woman, insane, or imprisoned, or absent from the United States, unless within one of the British provinces of North America, such person, or any one claiming from, by or under him, may make such entry, or bring such action, at any time within five years after such disability shall be or shall have been removed, al- though the time limited therefor in the first section of this chapter may have expired. HUGHES v. GRAVES. (Supreme Court of Vermont, 1867. 39 Vt. 359, 94 Am. Dec. 331.) This cause was an a ct of trespass quare clausum freg it. 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 defen dant filed except ions 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 vil- lage of Fairhaven, both lots being originally parcels of an entire lot and e ach 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, southerly to the northwest corner of the Whipple lot. This line formed the eastern boundary of ancient highway, discontinued more than fifty years since, running over the lot of the defendant. Joshua Quenton an intermediate grantgr 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 Quen- | ^ tons enclosed with a fence a strip of land about ten feet wide at the j '^ 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 highway, making a portion of their door yard, and continued t o j occupy peaceably and adversely claiming it as their own for mnrp th-a n j fifteen years . In the fall of 1847 an intermediate grantor of the de-^ fendant, 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 occu- pation in them continued till March, 1861, as the fence was still stand- f^-^' -'A. /C-V yl 22 ORIGINAL TITLES (Part 1 ing when the plaintiff took possession under his deed, and when the defendant purchased his lot in April, 1862, he claimed it and in the summer of 1862 erected a store which extended eastward within about eight inches of the plaintiff's dwelling house and covered not only a portion of the strip of land so enclosed by the Quentons taken from the old highway and the plaintiff's lot, but also a small portion of land included within the boundaries of the plaintiff's lot. None of the deeds prior to the deed of Olive Kelsey to I. Davey, of March 23d, 1860, by and through which the plaintiff claims title to his lot, in their bound- aries included the piece of land enclosed by Quenton and taken from said old highway, and which actually formed part of the door yard to the plaintiff's house. If the court shall be of opinion that the plaintiff takes nothing by Quenton's possessory title be cause the land so claim ed w as not included in the boundaries of his dee d, then we only find for the plaintiff to recover of the defendant seven dollars damages and his costs, otherwise we find for the plaintiff to recover of the defend- ant ten dollars damages and his cost." fi Steele, J. The plaintiff is in actual possession and by his deed from 'Plive Kelsey, is entitled to the benefit of her possession. Her posses- sion was prior to any possession by the defendant or his grantors. The plaintiff" will therefore maintain this action of trespass as against the de- fendant by virtuej)f mer e prior possession, unless the defendant has a right to the possession. It is then the defendant's right and not the plaintiff's which we are required to examine. The defendant shows a faultless chain of title on paper, but it turns out he does not own the land. One Quenton acquired the ownership by fifteen years possession adverse to the defendant's grantors. The defendant's chain of deeds represents nothing in the disputed l&nd except what his grantors lost and Quenton gained. If Quenton's title had been by deed from the defendant or his grantors, it is clear the defendant could not lawfully have disturbed the plaintiff's prior possession. Quenton had no deed, but his adverse possession for the statutory period gave him an abso- lute indefeasible title to the land against the whole world on which he could either sue or defend as against the former owner. That being the case is there sufficient virtue left in the defendant's paper title to warrant him in disturbing the plaintiff's possession. Under the present English statute of limitations it is settled there would not be. The case would stand precisely as if the defendant or his grantors had conveyed to Quenton. The plaintiff would be liable to be interrupted in his pos- session only by Quenton or some person under him. Holmes v. New- lands, 39 E. C. L. 48, (11 A. & E. 44.) In Jukes v. Sumner, 14 Mees. & Welsby, 41, Parke, B., remarking upon the present English statute 3 and 4 W. IV, ch. 27, says the effect of the act is to make a parlia- mentary conveyance of the land to the person in possession after the period of twenty years has elapsed. The several English statutes, and their supposed points of difference, are commented upon in 2 Smith's Ch. 1) POSSESSORY TITLES 23 Lead. Cases, 469, 559, et passim, and the case Fenner v. Fisher, Cro. Eliz. 288, is cited in Holmes v. Newlands, ubi supra, as an authority under the previous statutes against the apphcation to these statutes of the full extent of the rule applied to the statute of William IV. Any extended discussion of these English statutes would be unprof- itable here for our statute, though mainly borrowed at the outset from the statute of James, was somewhat modified when transferred to Ver- mont, and has been materially altered in form in passing through the several revisions to which our laws have been subjected. It now pro- '^t^j^^^^v-JS^ vides after the section relating to actions that, "no person having right 'i^Cc-^K^.^^Cc or title of entry into houses or lands shall thereinto enter but within fifteen years next after such right of entry shall accrue." The first section takes away the remedy, and the second the right. G. S. p. 442, §.§ 1 and 2. The title is vested in the adverse holder for the statu- tory period, or as is often said, "the adverse possession ripens into title." As a natural consequence the former owner is divested of all the new owner acquires. This interpretation giving to adverse pos- session for fifteen years the effect of a conveyance best accords with the other well settled doctrines upon the subject of limitations as ap- plied to real property. A covenant to convey perfect title is satis- ,. fied by conveying a title acquired under the statute. In this country, as in England, an agreement made after the lapse of the statutory period to waive the benefit of the statute is not eft'ective, but the title remains in the party who has acquired it under the statute, notwith- standing his waiver, until he conveys it back with all the solemnities required in any deed of land. In language of the books, "by analog}' to the statute of limitations we presume a grant of incorporeal rights^ -^ after adverse uses for fifteen years." It would certainly be an artifi- _ I cial construction of the statute which would make it a mere bar to the -^ * owner's right against the person only who occupied adversely. It re- -^ "pc^^ lates to the rights of the party to the land. It makes no reference to .x^^^A/f persons. In this case, if the plaintiff's enjoyment of the land subjects him to an action or entry by Ouenton, on the ground that Quenton and not the defendant is the true owner, it ought not at the same time so sub- ject him to action or entry by the defendant, on the ground that the defendant is the true owner of the land. We are satisfied that no title remains in the defendant, and that under our statute, he has no right to the possessioa. It has been held that a plaintiff in possession with- out right could maintain trespass against even the true owner for a disturbance, while the right of possession was in a third person by lease from the owner. Phillips v. Kent & Miller, 23 N. J. Law, 155. Here neither the right of possession nor the ownership was in the de- fendant. The plaintiff claims that upon a correct construction of the deeds he has Quenton's title. This point we have not decided. The plaintiff's l/'/f u^ 24 ORIGINAL TITLES (Part 1 prior possession will enable him to recover as against the defendant whose grantors suffered Quenton to acquire the land by adverse pos- session for the statutory, period. Judgment affirmed.* 1 — DOE ex dem. GOODY v. CARTER. (Court of Queen's Bench, 1847. 9 Q. B. 863.) Ejectment for a cottage, garden, &c., in Essex. Demise, 8th Janu- ary, 1845. On the trial, before Coleridge, J., at the Essex Summer Assizes, 1845, it appeared that the defendant was the widow of John Carter, who died in 1834, being then occupier of the premises, which he had held, as after mentioned, for a period short of twenty-one years; and t he defendant had occupied thern ever sni gg. The otner material~facts (as stated in the judgment of the Court delivered this day) were as follows. Robert Carter, the father of John, purchased the premises (amongst others) from one Havens, and was let into possession; but, as he did not pay all the purchase money, no conveyance was executed till the 14tli December, 1824, some years after the purchase. In the meantime the father had let his son John, the husband of the defend- ant, into possession of part of the premises as tenant at will witho ut p aying any rent._ T he father afterwards mortgaged the whole, on 23 d March, 1829, for a term of years, now vested in the lessor of the plain - tiff. The learned Judge directed the jury that, if they believed John Carter, the son, to have entered as tenant at will more than twenty-one years before the day of the demise laid in the declaration, this action was barred by Stat. 3 & 4 W. IV, c. 27 (sections 2, 7).« Verdict for de- fendant. Lush in the ensuing term obtained a rule nisi for a new trial 8 Premises were l eased to A. for 89 years . Shortly after the lease was made, G. e ntered into possession and continued therein a dversel y to A. for 40 years, when G^as_signed the term to defendant. The rent was regularly paTcl by^. during the 40 years. In an action by the present owner of the rever- sion for breach of a covenant to repair contained in the original lease to A., it was held that defendant was not liable upon covenants in said lease. Tichborne v. Weir. 4 R. 26, 67 L. T. 735 (1S9.3). Compare Re Nisbet and Potts' Contract, [1905] 1 Ch. 391, where a restriction under the doctrine of Tulk V. Moxhay, 2 Phillips, 774 (1848), was held enforceable against one who had acquired ownership by adverse possession. As to „an adverse possessor acquiring a right of way by necessity where the property held adversely was surrounded by other lands of the paper title owner, see Wilkes v. Greenway, 6 T. L. R.'449 (1890).^ 8 Those sections provided as follows: "II. And be it further enacted, that after the 31st day of December, 1833, no person shall make an entry or distress, or bring an action to recover any land or rent but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first ac- crued to some person through whom he claims ; or if such right shall not ha>.e accrued to any person through whom he claims, then within twenty yea:.'s next after the time at which the right to make such entry or distress Ch. 1) POSSESSORY TITLES 25 on the grounds of misdirection, and that the verdict was against the weight of evidence. Cur. adv. vult. Lord Denman, C. J., now dehvered the judgment of the Court. This rule was moved for on two grounds ; misdirection, and that the verdict was against evidence. As to the latter, we think that there was abundant evidence to show that t he defendant's husband John Carte r e ntered into posses sion of all the premises sought to be recovered, a s t enant at will to his tatlier, more than twenty-one years before the bringing of this ejectmen t, which in truth was the only question for the jury. The case, therefore, depends on the question whether the learned Judge misdirected the jury. The facts were: [His Lordship here stated them as they appear ante.] Under these circumstances, it was contended for the lessor of the plaintiff that, as the father was him- self tenant at will to Havens till 14th December, 1824, when that ten- ancy w^as determined by the execution of the conveyance, the ten- ancy at will subsisting between the father and son was determined at the same time. We do not think that consequence followed, but are of opinion that t he conveyance to the father had no operation on th e t enancy at will between him and the son.. Again, it was contended that the mortgage by the father in 1829 operated as a determination of the will. Assuming this to be so, still the son would thereby become te nant by sufferan ce, and the twenty years under the late statute 3 & 4 W. IV, c. 27, having begun to run long before, would continue to run unless a new tenancy at will or for some other term were created ; Doe dem. Bennett v. Turner, 7 M. & W. 226, Turner v. Doe dem. Bennett, 9 M. & W. 643; and, indeed, the same observation would apply if the conveyance in 1824 were treated as a determination of the will. Now there was no evidence in this case from which the jury could .d jaw t he conclusion tliat a new tenancy between the father. and the son ha d b een created at any time within twenty years before the bringing of t his ejectment : and, therefore, the determination of the will of the . father either in 1824 or in 1829 is not, in truth, material. Upon the whole, we are of opinion that the learned Judge was right in telling the jury that, if they believed the son to have entered as ten- ant at will more than twenty-one years before the 8th of January 1845 (the day of the demise in the declaration of ejectment), the statute 3 or to bring such action shall have first accrued to the person making or bringing the same. "VII. And be it further enacted, that when any person shall be in pos- session or in receipt of the profits of any land, or in the receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he 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 tenancj;^ at which time such tenancy shall be deemed to have determined; provided always, that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee." CX^^fu^ i2--i.»A pv^^Ji^ r: X^C/fM-.A-v^^c*^ 26 ORIGINAL TITLES (Part 1 & 4 W. IV, c. 27, was a bar to the actio n ; and that the jur>^ were right in finding- that he did so enter. The rule for a new trial must, there- fore, be discharged. Rule discharged.^" DOE ex dem. CARTER v. BARNARD. (Court of Queen's Bench, 1849. 13 Q. B. 945.) Ejectment for a cottage in Essex. Demise, 13th May, 1848. On the trial, before Coltman, J., at the Essex Summer Assizes, 1848, it appeared, from the evidence given for the lessor of the plaintiff, that in 1815 one Robert Carter purchased the premises, and was let into possession ; but, as he did not pay all the purchase money until 1824, no conveyance was executed till that time. Robert Carter, immediately after his purchase in 1815, allowed his son John to occupy the prem - i ses rent free as tenant at will ; and he continued so to occupy until 1834, when he died, leaving a widow, who was the lessor of the plain- tiff, and a son and other children. Robert Carter, the father, was at that .time still living. T he lessor of the plaintiff had occupied fro m t he time of her husband's death, until a short time before the presen t action wa s broug ht The defendant claimed under a mortgage made by Robert Carter in 1829. For the defendant it was contended, that, assuming a title to have been shewn in John Carter, the lessor of the plaintiff could not recover. The learned Judge directed a verdict for the plaintiff, and reserved leave to the defendant to move to enter a nonsuit. Cur. adv. vult. Patteson, J., now delivered the judgment of the Court. The lessor of the plaintiff proved no title, but relied on long posses- sion ; viz. her own for thirteen years, and her husband's before her for eighteen years ; but, in so doing, she shewed that her husband left sev- eral children, one of whom was called as a witness. If the husban d's p ossession raised a presumption that he was seised in f ee^ that fee mus t h ave descended on his c hild, and, of c our se, the lessor of the plaint iff f r nust tail. But she contends that, because the husband's possession ^ k-^ was for less than twenty years, no presumption of a seisin in fee arises ; Jifif^ ^ that she is entitled to tack on her own possession to his ; and then that 7^ the 34th section of Stat. 3 & 4 W. IV, c. 27, which enacts "that at the ^ determination of the period limited by this Act to any person for mak- ^ ing an entry or distress, or bringing any writ of quare impedit or other action or suit, the right and title of such person to the land, rent, or advowson for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, 10 Willis V. Earl Howe [1S93] 2 Cli. 545, 553; Kipp v. The Inc. Synod, etc., 33 U. C. Q. B. 220 (1873), ace. Compare Dixon v. Gayfere, 17 Beav. 421 (1853) ; Ryerse v. Teeter, 44 U. C. Q. B. 8 (1S7S). Ch. 1) POSSESSORY TITLES 27 shall be extinguished," has put an end to the right and title of all per- sons, and transferred the estate to her. If she had been defendant in an action of ejectment, no doubt the non-possession of the lessor of the plaintiff, evidenced by her husband's and her own consecutive posses- sion for more than twenty years, would have entitled her to the ver- dict on the words of the 2d section of the Act, without the aid of the 34th section. Therefore it is said that the 34th section must have some further meaning, and must transfer the right. Probably that would be so, if the same person, or several persons, claiming one from the other by descent, will or conveyance, had been in possession for the twenty years. But this lessor of the plaintiff showed nothing- tn c on- n ect her possession with that of her husband by right of any sort : and, if she be right m her construction of the 34th section, the same conse- quence would follow if twenty persons unconnected with each other had been in possession, each for one year, consecutively for twenty years : yet it would be impossible to say to which of the twenty per- sons the 34th section has transferred the title. Without the aid of this statute twenty years' possession gave a prima facie title against every one, and a complete title against a wrongdoer who could not shew any right, even if such wrongdoer had been in possession many years ; pro- vided they were less than twenty ; Doe dem. Harding v. Cooke, 7 Bing. 346; and t he effect of the 34th section would probab l y be to givejt he right to the possessor for twenty years, even against the party in wh o m t he legal estate formerly was , and, but for the Act, would still be, where he had not obtained the possession till after the twenty years ; but then we apprehend, as before stated, that such twenty years' pos - s ession must be either by the same person or several persons claimin g o ne from the othe r, whic h is not the case here . The lessor of the plaintiff must therefore rely on her own possession for thirteen years as sufficient against the defendant who has turned her out and shews no title himself. According to the case of Doe dem. Hughes v. Dyball, Moo. & M. 346, that possession for thirteen years would be sufficient; for in that case the lessor of the plaintiff shewed only one year's possession, and yet Lord Tenterden said, "That does not signify; tliere is ample proof ; the plaintiff" is in possession, and yo u c ome and turn him out : .you must shew your title ." See also Doe dem. Humphrey v. Martin, Car. & Marsh. 32. These cases would have warranted us in saying that the l essor of the plaintiff had esta b- l ished her case, if she had shewn nothing but her own possession fo r t hirteen years. The ground however of so saying would not be that possession alone is sufficient in ejectment (as it is in trespass) to main- ^^^^ tain the action ; but that such possession is prima facie evidence o f ^^^•'^ title, and, no other interest appearin g i n proof, evidence of seisin in fe^ . Here, however, the lessor of the plaintiff' did more, for she proved the possession of her husband before 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. 28 ORIGINAL TITLES (Part 1 a gainst which the lessor of the plaintiff's possession for thirteen ye ars c ould not prevail ; and, therefore, she has by her own shewing proved the title to be in another, of which the defendant is entitled to take ad- vantage.^^ On this ground we tliink that the rule for a nonsuit must be made absolute. Rule absolute for a nonsuit. AGENCY CO. V. SHORT. (Privy Council, 1SS8. 13 App. Cas. 793.) Appeal from a judgment of the Supreme Court (Oct. 27, 1886) re- fusing a rule nisi for a new trial in an action of ejectment to recover fifty acres of land situate in Botany Bay, in the Colony of New South Wales. The facts of the case are stated in the judgment of their Lordships. The proceedings in the Court below are reported in N. S. Wales Rep. vol. 8 (N. S.) p. 365. ' Chief Justice Martin t old the iurv at t he trial that when any person went into possession of another person's land, and exercised dominion over it with the intention of claiming it, and the Statute of Limitations thereupon began to run as against the owner of the land, such runnin g was never stopped, notwithstanding that the intruder entirely aban - d oned the land long before thp expiration of twenty years from Jj is first entry , and no other person took possession of such land, and that the right of the true owner of the land would not again arise without an entry by such true owner with the intention of repossessing himself of such land ; that at the expiration of twenty years after such taking possession of the land as against the true owner his right of action was defeated, notwithstanding that there may not have been twenty years' possession as against him ; th at if Meredith, through whose possessio n th e defendant cl aimed, abandoned the land in the year 1853, and afte r- w ards, un til the detendant came there, no person was in possession o f the lan d, still the statute continued to run as against the plaintiff: an d t hat the st atute barred the plaintiff's ri^ht of action herg in. The Supreme Court (Martin, C. J., Faucett and Windeyer, JJ.) af- firmed this ruling. The judgment of their Lordships was delivered by Lord Macnaghten. On the 3rd of December, 1885, the appellants, as plaintiffs, brought an action against the respondent as defendant, to recover fifty acres of land situated in the district of Botany Bay, in the county of Cumberland, in the colony of New South Wales. The defencfi^was the Statute of Limitations (3 & 4 Will. IV, c. 27), which was adopted in the Colony by the Act No. 3 of 1837. The action camie on for trial in September, 1886, before the late Chief Justice Martin and a jury. 11 See Christy v. Scott, 14 How. 282, 292, 14 L. Ed. 422 (1852), contra. Ch.l) POSSESSORY TITLES 29 For the present purpose the facts of the case may be stated very shortly. The land in dispute was, until recently, waste open bush. The plaintiffs at the trial proved a complete documentary title deduce d from a Crown gr ant in 1810. But they failed to prove to the satisfac- tion of the learned judge at the trial that they or any person through whom they claimed had been in a ctual occupation of the land at any time during the period of twenty years immediately preceding the commencement of the action. On the other hand the defendant, who claimed to have purchased the land within the last few years, did not prove to the satisfaction of the learned judge that he and the person or persons through whom he claimed had been in c ontinuous possession during the statutory period. ' ~ The Chief Justice told the jury that when any person went into pos- session of another person's land, and exercised dominion over it, with the intention of claiming it, and the Statute of Limitations thereupon began to run as against the owner of the land, such running was never stopped, notwithstanding that the intruder abandoned the land long before the expiration of twenty years from his first entry, and no other person took possession of such land, a nd the right of the true owner to_ t he land would not again arise without an entry by such true owne r with the intention of repossessing himself of such land_^ The Chief Justice also told the jury that at the expiration of the twenty years after such taking possession of the land, as against the true owner, his right of action was defeated, notwithstanding there may not have been twenty years' possession as against him. A ve rdict was found for the defen dant. On the 27th of October, 1886, the plaintiffs applied for a rule nisi for a new trial on the ground of misdirection. The application was heard before the late Chief Justice, Faucett, J., and Windeyer, J., who refused the rule. The Chief Justice is reported to have said : "There is no doubt that there was evidence sufficient to justify the verdict of the jury as to the occupation of the land more than forty years ago, which caused the statute to run against the legal owner. That being so, there was no evidence whatever that the legal owner during that time ever retook possession, or even walked over the land. The stat- ute having been set running there was nothing to stop it." To this report Faucett, J., has been good enough to append the fol- lowing memorandum for the information of their Lordships : "This is substantially a correct note of the reasons given by the late Piief Justice for refusing the rule in this case. His judgment was given in very few words. "I may add that it has been before held by this Court that when the rightful owner of land has been dispossessed, and the statute has once begun to run against him, the statute does not cease to run ; in other words, the operation of the statute is not suspended until the rightful owner has exercised some act of ownership on the land ; and that if the rightful owner allows twenty years to elapse, frorh the time when the La^cZ^ ^.^^-ijL^^ t^A-xth6J?!lailltiffs_^. error to recover a strip of ground three feet wide, fronting on Longworth street, in the city of Cincinnati. The defense relied on was the statute of limitations. The case was submitted to the court upon the following agreed statement of facts : Jane McNeely et al. v. Thomas Langan. No. 32,026. Hamilton Common Pleas. It is hereby agreed between the parties that Stephen Burrows, on the 1st day of January, 1842, lease d perpetually to R. G. Masterson the following described premises, to which the said Burrows had a good title in fee simple, viz. : beginning at a point in the south line of Long- worth street as continued, and the east line of a lot of ground lately belonging to tlie estate of Samuel Still, deceased, extending thence south with said east line eighty feet, more or less, to the north line of a 15 See Memphis & L. R. Co. v. Organ, 67 Ark. 84, 55 S. W. 952 (1S99); Kendric-k v. Latham, 25 Fla. 819, 6 South. 871 (1889) ; Mortenson v. Murphy^ 153 Wis. 3S9, 141 N. W. 273 (1913). Ch. 1) POSSESSORY TITLES 3T ten foot alley; thence east along the north line of said alley twenty- L.' three feet; thence north parallel with said Still's east line aforesaid ■ . eighty feet, more or less, to the south line of Longworth street as afore- said ; thence west along the south line of Longworth street twenty- three feet to the beginning. That R. G. Masterson conveyed said lot and leasehold to" Joseph More, May 20, 1850; said More to E. P. Cranch, April 10, 1854; and said Cranch to the defendant, Thomas Langan, August 29, 1860. It is hereby further agreed that said Mas- terson, on or about May, 1842, built a frame cottage on the west line of said lot and on the land described in the petition. It is further ~ agreed that the plaintiffs are the owners of said land described in their said petition, if the same does not belong to the defendant by occu- pancy. It is further agreed between the parties that the land described in their petition was not conveyed by deed to Masterson, nor by Mas- terson to More, nor from More to Cranch, nor from Cranch to the defendant. Langa n. That the said Masterson, at the time of taking possession under his lease from Burrows, entered into the possession of the premises described in the petition, fenced it in with the other property, built his house partly thereon, so as to occupy these three feet as above stated ; and the said Masterson, More, Cranch, and the defendant, Langan, have, by transfer of possession made at the time of the several conveyances above mentioned, remained in continuous possession and actual occupancy of said premises and cottage, including said three feet, from May, 1842, to the present time. That neither the plaintiffs, nor those under whom they claim, nor_t_he_defaTidant, nor those under whom he claims, were aware of any question as to the title to this strip of three feet, nor as to any error made in the original location of said cottage and fencing, until October, 1860, when, by a survey then made, it was discovered by the plaintiff's that these three TeeiTwere noTmcTiKled in the perpetual lease made to Masterson ; and thereupon the plaintiffs, in the year 1865, made, for the first time, a demand upon the defendant for the possession thereof, which was re- fused tlien as it is now, and hence this suit. Wm. Disney, Attorney for Defendant. S. Clark, Plaintiffs' Attorney. The court found in favor of the defendant, and rendered judgment accordingly. The plaintiffs filed a petition in error in the District Court, asking a reversal of the judgment on the general grounds that the court erred in allowing the defendant the benefit of the statute of limitation. The case was reserved by the District Court for decision by this court. White, J. By the agreed statement, the court below was warranted in finding the possession to have been sufficiently open, notorious, and adverse to bring it within the operation of the statute of limitations. The quesji^n is, whether it was, in a legal sensCj continuous. For the plaintiff in error, it is contended that the continuity of pos- 38 ORIGINAL TITLES (Part 1 session was broken by each successive transfer of the premises in con- troversy ; and, consequently, that as neither the defendant nor any one occupier under whom he claims held possession for the period of lim- itation, the statute is not available as a bar to the action. There are authorities supporting this view, but we think the better reason, as well as the weight of authority, is against the position. Fan- ning V. Willcox, 3 Day (Conn.) 258; Smith v. Chapin, 31 Conn. 531; Shannon v. Kinny, 1 A. K. Marsh. (Ky.) 3, 10 Am. Dec. 705 ; Chilton V. Wilson's Heirs, 9 Humph. (Tenn.) 399; Cunningham v. Patton, 6 Pa. 355; Scheetz v. Fitzwater, 5 Pa. 126; Overfield v. Christy, 7 Serg. & R. (Pa.) 173; Johnson v. Nash's Heirs, 15 Tex. 419; Alex- ander V. Pendleton, 8 Cranch (U. S.) 462, 3 L. Ed. 624. Possession itself is a species of title, of the lowest grade, it is t rue. yet it is good against all who can not show a better, and by lapse of time may become, under the statute, perfect and indefeasible. In considering the question before us, it should be observed that, in this state, it is not necessary to the running of the statute, that posses- sion be held under color of title. Where there is possession of the requisite character, the question, whether there is color of title or not, is wholly immaterial. Lessee of Paine v. Skinner, 8 Ohio, 167; Yetzer V. Thoman, 17 Ohio St. 130, 91 Am. Dec. 122. The possession must be connected and continuous. But it is admit- ted~tBat~tHe possession will descend to the heir without interrupting the running of the statute ; and we see no good reason why the ancestor may not voluntarily dispose of a possessory interest, which the law, in the absence of such disposition, will transmit to the heir. The mode adopted for the transfer of the possession may give rise to questions between the parties to the transfer; but, as respects the rights of third persons against whom the possession is held adversely, it seems to us to be immaterial, if successive transfers of possession were in fact made, whether such transfers were effected by will, by deed, or by mere agreement either written or verbal. Judgment af- firmed. ^^ j^ jt /' 16 Vikin? Mfg. Co. v. Crawford, 84 Kan. 203, 114 Pac. 240, 35 L. R. A. (N. S.) 498 (1911) ; Wishart v. McKnight, ITS Mass. 356, 59 N. E. 1028, 86 Am. St. Rep. 486 (1901); Vance v. Wood, 22 Or. 77, 29 Pac. 73 (1S92); Gildea v. Warren, 173 Mich. 28, 138 N. W. 232 (1912) (but see Lake Shore & M. S. Ry. Co. V. Sterling [Mich.] 155 N. W. 383 [1915]); Rembert v. Edmondson, 99 Tenn. 15, 41 S. W. 935, 63 Am. St. Rep. 819 (1897); Illinois Steel Co. v. Paczocha, 139 Wis. 23, 119 N. W. 550 (1909), ace. Vicksburg, S. & P. Ry. Co. V. Le Rosen, 52 La. Ann. 192, 26 South. 854 (1899) ; Evans v. Welch, 29 Colo. 355, 68 Pac. 776 (1902) ; Messer v. Hibernia Sav. Soc, 149 Cal. 122, 84 Pac. 8.35 (1906), contra. See Erck v. Church, 87 Tenn. 575, 11 S. W. 794, 4 L. R. A. 641 (1889), a case which probably was not well tried. "If the possessions join by delivery from predecessor to successor, there is no opportunity for the true owner to become seised, and, after twenty years' submission to such inability, he becomes barred. * * * Possession and voluntary transfer thereof are physical facts provable by the testimony of an eye or ear witness or any other evidentiary fact or conduct. The only qualification to the possession is that it must be such as to exclude the true owner, not derived from or in subordination to him. The only essential of Ch. 1) POSSESSORY TITLES 39 RICH V. NAFFZIGER et al. (Supreme Court of Illinois, 1912. 255 111. 98, 99 N. E. 341.) Appeal from the Circuit Court of Tazewell county ; the Hon. T. N. Green, Judge, presiding. Farmer, J. This case was before us at a former term and the opinion then delivered will be found at page 455 of volume 248 of the Illinois Reports, 94 N. E. 1. We reversed the judgment and remanded the case for error in an instruction given for appellees, which, in effect, placed the burden upon appellant of proving that appellees did not have title to the disputed premises by a dversejposs^ssion. Another trial in the circuit court resulted in a verdict and judgment for de- fendants, and plaintiff' has again brought the case to this court by ap- peal. Our former opinion contains a statement of the case and a history of the controversy out of which this litigation arose. We will not re- peat that statement here in full, but will briefly say the action was quare clausum freg it brought by appellant, and the issues made by the pleadings im;olved the title to a narrow strip of land off the west side of the north half of the soudi-east quarter of section 5, township 25 north, range 2 west of the third principal meridian, in Tazewell county. The strip of land inv olved is nine feet wide at th e sou th end, fifteen feet wide at the north end, and extends from the south line of the north half of the south-cast quarter of section 5 to the north line of said tract. Appellant has title of record to the whole of the south-east quarter of said section 5. Christian Naffziger owns tlie north half of the south-west quarter of said section, and his son, Peter Naffziger, is his tenant.- Before Christian Naffziger became the owner of said tract the whole of the south-west quarter of said section 5, belonged to Christian Schwarzentraub, who died in November, 1888. By virtue of a decree in a partition suit between the heirs of Schwarzentraub the north half of the south-west quarter of section 5 was sold to Christian Naffziger on June 5, 1889, and a deed therefor executed to him by the master in chancery. At the time of said sale Fred Schwarzentraub was in possession of said eighty-acre tract as tenant, and the decree pro- vided the purchaser should have the rents for the year 1889 and the possession of the premises on March 1, 1890. While the strip of land in controversy was a part of the eighty acres to which appellant had paper title, it was in the enclosure with the north half of the south- west quarter from 1885 until April, 1909, when appellant, without leave of or notice to appellees, removed the south forty rods of fence from the line Icnown in this record as the Oswald line, west to the line the transfer is that the predecessor passes it to the successor by mutual con- sent, as distinguished from the case where a possessor abandons possession ^nerally^ and another, finding the premises unoccupied enters without con- tact or reTalion with the former. * * *" Dodge, J., in Illinois Steel Co. V. Paczocha, supra. J^ 40 ORIGINAL TITLES (Part 1 of the commission survey established in March, 1909. The fence was built on the Oswald line as early as 1885, and thereafter Schwarzen- traub and his heirs had possession of and cultivated all the land on the west side of the fence until the sale to Christian Naftziger, and from March 1, 1890, he has continued in possession and cultivated all the land on the west side of the fence. Appellant and his predecessor in title have during- all that time possessed and cultivated the land on the east side of the fence. It will be seen Christian Naffziger himself had not been in possession of_the disputed premises quite twenty years, but if the possession of Schwarzentraub be tacked to his, the period of adverse possession is more than twenty years. The proposition principally relied upon by appellant for reversal of the judgment is that there was no privity be- tween Christian Schwarzentraub and Christian Nafifziger, and there- fore the possession of the former cannot be tacked to the latter. The rule of law as laid down by the decisions of this and other States is, that j privity of estate or title is necessary between successive disseizor^ to authorize joining together the several possessions so as to make a continuous possession. Acts of possession at different times, by dif- ferent persons between whom there is no privity, cannot be joined. Ely v. Brown, 183 111. 575, 56 N. E. 181. It is conceded by appellant that if Christian Schwarzentraub or his heirs, if adults, had conveyed the north half of the south-west quarter of section 5 to Christian Naffziger and had delivered to him possession of the entire enclosure up to the division fence, the possession of Schwarzentraub could be tacked to that of Naffziger and form a con- tinuous possession, but it is insisted that as the conveyance of the eighty acres to Naffziger was made„by tliejnaster in chancer}^ under the decree in tlie partition suit there could be no privity of estate or title between Naffziger andSchwarzentraub and that the two posses- sions could not be joined. ' Where a person having title, by deed, to a lot or tract of land described in the deed also has enclosed with it and is in possession of adjoining land to which he has no record title, and conveys the land by the description in the deed and delivers with it the possession of the entire enclosure, the continuity of possession will not be broken and the two possessions will be joined and considered as one continuous possession. This result, however, does not neces- sarily follow the making of the deed describing the land to which the grantor had paper title. The title to premises in possession but not described in the deed to the claimant does not depend upon a deed but upon possession alone, and for that reason will not pass by a convey- ance describing only the land to which the grantor has record title, but possession of the land not described in the deed must be delivered. The privity between two disseisors which will authorize tacking their possessions is not, therefore, established by a deed from one to the other. Illinois Central Railroad Co. v. Hatter, 207 111. 88, 69 N. E. 751. The deed is proper to be considered in determining whether pos- Ch. 1) POSSESSORY TITLES 41 session of the land in the enclosure not described in the deed was taken at the same time as the possession of the land described therein, and where the deed is followed by the delivery of possession of the entire enclosure it is sufficient evidence of a transfer of possession to raise the requisite privity between tlie parties. But a paper transfer is tiot necessary to connect adverse possessions. It may be a means in es- tablishing the fact of privity but is not the only means. Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N. W. 1027, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54. In discussing the circumstances under which the possession of disseizors may be joined, the Wisconsin Supreme Court said in Illinois Steel Co. v. Paczocha. 139 Wis. 23. 119 N. W. 550: " The on ly essential of the transfer is that the predecessor passes k^ to the successor by mutual consent, as distinguished from the case where a possessor abandons possession generally, and another, finding the premises unoccup ied, enters without contract or relation with the J^ormer." In Weber v. Anderson, 7Z ^1. 439, the owner of a lot conveyed all of it but a ten-foot strip off one side to the president of a plank-road company. The grantee took possession of the entire lot and enclosed it with a fence, claiming tide to the whole of it, and remained in pos- session from 1849 to 1863. It then sold the premises, and in the con- veyance described them as they were described in the deed made to it but delivered to the purcliaser possession of the entire lot. The purchaser held possession until May, 1870, and then conveyed the entire lot to another. One of the questions in the case when it was before this court w^as whether the possession of the plank- road company and its grantee could be joined and considered as a continuous possession for twenty years. It was contended by the appellant that the transfer of possession could not be proved, by parol but must be proved by deed. I 'ihisTourt held that po deed is necessary to support title by adverse possession, but that it is sufficient for a party to take possession under a claim of ownership and hold the prem- ises for the time required by the statute to complete the bar; that a deed^ isnot necessary to prove the transfer of the possession but such traiisfer may_ be shown by parol. The court referred to and quoted from decisions of other States, as follows : "In the case of Smith v. Chapin, 31 Conn. 531, the Supreme Court of Connecticut, in deciding a question similar to the one in this case, says : 'Doubtless the posses- sion 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, agree- ment 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.' In Menkens v. Blumenthal, 27 Mo. 203, it was held whether one occupant receives his possession from a prior one or is a mere intruder upon an abandoned lot is a question of fact, which may be determined by any testimony which is legitimate and pertinent. ^ 42 ORIGINAL TITLES (Part 1 We know of no rule of evidence which confines the proof to a deed or written instrument. In Crispen v. Hannavan, 50 Mo. 544, the doc- trine announced in the last case cited is approved, and the court adds : 'Not even a writing is necessary if it appear that the holding is con- tinuous and under the first entry.' In AIcNeely v. Langan, 22 Ohio St. 32, the same question arose, and it was there held : 'The mode adopted forthe transfer of the possession may give rise to questions between the parties to the transfer, but as respects the rights of third persons, against wliom the possession is held adversely, it seems to us to be im- material, if successive transfers of possession were, in fact, made, whether such transfers were effected by will, by deed or by mere agree- ment, either written or verbal.' " In Faloon v. Simshauser, 130 111. 649, 22 N. E. 835, it was contended by the appellant that in order to avail of the bar under the Statute of Limitations, privity of estate with the prior disseizors must be shown by purchase and conveyance of disseizin. Upon this question the court said : "It is a sufficient answer to this claim, and to the au- thorities cited to show it is essential to establish by a deed that appellees are connected with the adverse possessions of Allen and Sarah B. Withers, to say that the question is not an open one in this State, and that, the rule having been years ago determined otherwise by this court and it being a rule of property upon which many titles may depend, such former ruling will be adhered to without any re-examination of the conflicting authorities in respect thereto." The privity required is that there must be a continuous possession by mutual consent, so that the possession of the true owner shall not con- structively intervene. The possession of one who had abandoned the premises could not be joined with the possession of one who found them unoccupied, and, without any connection with the former pos- session, entered upon the land. In the case before us Christian Schwarzentraub was at the time of his death, and had been for some years, in the possession of tlie land in controversy. He was prima facie the owner of it, and upon his death his estate in it was cast upon his heirs, to whom his possession was transferred by operation of law. Gosselin v. Smith, 154 111. 74, 39 N. E. 980. They remained in posses- sion until after the partition, when they surrendered their possession to Christian Naffziger. The title he acquired by the master's deed did not describe or embrace the strip of land in controversy, but the proof shows' he succeeded the Schwarzentraubs in the possession of it, and we are of opinion it must be held the two possessions are lawfully joined. The proof of appellees was abundant to the eft"ect that their posses- sion was adverse, and it was not sufficiently weakened by the testimony on behalf of appellant that we can say the jury were not justified in finding the evidence established title in appellees by adverse possession, and in our opinion there was no error in the rulings of the court in the admission of testimony that unduly prejudiced appellant. We have Ch. 1) POSSESSORY TITLES 43 read the evidence and are satisfied the verdict was v^^arranted by it. We can see no reason to suppose that a different result might obtain on another trial. The proof of appellees met the requirements of the rule stated in Zirngibl v. Calumet Dock Co., 157 111. 430, 42 N. E. 431, and other decisions of this court, upon the degree of proof necessary to establish title by adverse possession. No substantial error was committed by the trial court in giving and refusing instructions. Judgment affirmed. SECTION 4.— ADVERSE POSSESSION RICARD v. WILLIAMS. (Supreme Court of the United States, 1822. 7 Wheat. 59, 5 L. Ed. 398.) Error to the circuit court of the United States for the district of Connecticut. This was a suit instituted by the defendants in error against the plaintiff in error, in the court below. The original action is commonly known in Connecticut by the name of an a ction of disseisin, and is a real action, final upon the rights of the parties, and in the nature of a real action at the common law. The cause was tried upon the general issue, nul tort nul disseisin, and a verdict being found for the demand- ants, a bill of exceptions was taken to the opinion of the court upon matters of law at the trial. The^ demandants claimed the estate in controversy by purchase from the adm inistrator of William Dudley, at a sale made by him for the payment of the debts of his intestate, pursuant to the laws of Connecti- cut, which authorize a sale of the real estate of any person deceased, for the payment of his debts, when the personal assets are insufficient for that purpose. In order to establish the title of William Dudley in the premises, the demandants proved that Thomas Dudley, the fa- ther of William, was, in his lifetime, possessed of the premises, as par- cel of what were called the Dudley lands, and died possessed of the same in 1769, leaving seven children, of whom William was the eldest, being of about the age of fourteen years, and Joseph Gerriel, the youngest, being about four years of age. Upon the death of Thomas Dudley, Joseph Mayhew, the guardian of William, entered into posses- sion of the Dudley lands, and of the demanded premises as parcel, tak- ing the rents and profits in his behalf during his minority ; and upon his arrival at full age William entered and occupied the same, taking the rents and profits to his own use, until his death, which happened in the year 1786, all his brothers and sisters being then living. During the- 44 ORIGINAL TITLES (Part 1 life of William, no other person claimed any right to enter or occupy the premises, except that his mother received one third of the rents and profits, until she died in the year 1783. During his life, and while in possession of the premises, William always declared that he held the same only for life, and tlierefore would not allow any improvements on them at his expense ; no leases were made by him except for short periods ; and no attempt was made by him to sell or convey the prem- ises ; and he declared that he had no right to sell them, and that upon his death they would descend to his son Joseph Dudley, under whom the tenant derived his title, in the manner hereafter stated. No ad- ministration was ever taken in Connecticut upon the estate of William Dudley, until 1814, and his estate was then declared insolvent; and in 1817, the lands in controversy were sold by the administrator, by order of the court of probates, for the payment of tlie debts found due under the commission of insolvency. To rebut the title of the demandants, and to establish his own, the tenant proved that William Dudley died intestate, leaving seven chil- dren, the eldest of whom was Joseph Dudley. Upon the death of his father, the guardian of Joseph (the latter being within age,) entered into possession of the Dudley lands, and of the demanded premises as parcel, and used and occupied the same, receiving the rents and profits in behalf of Joseph, until his arrival at full age, when Joseph himself entered into possession, claiming them as his own, and taking the rents and profits to his own use, and holding all other persons out of pos- session, until the year 18irand 1812, when he sold the demanded prem- ises, and the tenant, either by direct or mesne conveyances under Jos- eph, came into possession, and has ever since held the premises in his own right. In the year 1811, Samuel Dudley, the brother of Joseph, claimed title to some of the Dudley lands possessed by Joseph, and brought an action of ejectment for the recovery of them, but the suit was compromised by Joseph's paying him about $2,000, and about the same time Joseph settled with another of his brothers, but did not pay him any thing. But Joseph never admitted that his brothers or sister had any interest in the lands; and said he could hold them, and did hold them, in the same manner as he held the lands in Massachusetts. The will of Governor Dudley, which was admitted to probate in Massachusetts in 1720, was also in evidence, but neither party estab- lished any privity or derivation of title under it. Upon these facts, the tenant prayed the court to instruct the jury, that the demandants had not made out a title in themselves, nor in William Dudley. Not in themselves, because the sale by the adminis- trator to the demandant was void, by force of the statute regarding the sale of disputed titles, the tenant being in possession of the prop- erty at the time of the sale, claiming it as his own, and that William Dudley had acquired no title to the property in question by possession, as he claimed to hold the same only during his life, and could therefore acquire no title, except for life by any length of possession, and that Ch. 1) POSSESSORY TITLES 45 if he could acquire title by possession, if this estate descended from Thomas Dudley, said William could not in seventeen years, acquire a title against his brothers and sisters, or at least against those of them who had not been of full age for five years before the death of said William ; and if the demandants could recover at all, it could only be for that proportion of the estate which descended from William as one of the heirs of Thomas Dudley. The tenant further prayed the^ gomt to instruct the jury that if they found that Joseph Dudley had, for more than fifteen years before he sold the land in controversy, been in possession of the same, exclusively claiming them as his own, and holding out all others, he had gained a complete title to the property. The tena nt further claimed that the court ought to have instructed the jury, that under the circumstances attending the possession of said lands by William Dudley, the father, and by Joseph Dudley, and the length of time which had elapsed since the death of said William, with- out any claim on the part of the creditors of said William, the jury might presume a grant from some owner of the land to William for life, with remainder to his eldest son. But the court did charge and instruct the jury that the sale by the administrator under an order of court was not within the statute regarding disputed titles, and was not therefore void. That William Dudley, by mistaken constructions of the will of Governor Dudley, might have claimed an estate for life in the premises, and that such mistake would not operate to defeat his title by posses- sion. That the length of time in which this estate had been occupied by WilHam and Joseph Dudley, would bar any claims by the other chil- dren of Thomas Dudley, deceased, and that the jury were authorized to presume a grant by said Children to their brother William Dudley, deceased, and therefore, if the demandants recovered, they must re- cover the whole of the premises. The court also charged the jury that, as against the creditors of William Dudley, neither Joseph Dudley nor the tenant had gained title to the lands in controversy by possession, and that tlie jury were not authorized to presume a grant to Joseph. To which several opinions of the court the tenant, by his counsel, excepted. Story, J.^^ The j^rincipal questions which have arisen, and have ''^ been argued here, upon the instructions given by the circuit court, and to which alone the court deem it necessary to direct their attention, are: 1. Whether upon the facts stated, a legal presumption exists, that William Dudley died seised of an estate of inheritance in the de- manded premises ; and, if so, 2. Whether an exclusive possession of the demanded premises, by Joseph Dudley and his grantees, after the death of William, under an adversary claim, for thirty years, is a bar to the entry and title of the demandants under the administration sale. 17 Part of the opinion is omitted. 46 OKIGINAL TITLES (Part 1 It is to be considered, that no paper title of any sort, is shown in Wil- liam Dudley or his son Joseph. Their title, whatever it may be, rests upon possession ; and the nature and extent of that possession must be judged of by the acts and circjumstances which accompany it, anijquali— fy, explain, or control it. (Undoubtedly, if a person be found in pos- session of land, claiming it as his own, in fee, it is prima facie evidence of his ownership, and seisin of the inheritance. But,_it_is not the pos- session alone, but the possession accompanied with tlie ^aii^_fii_liie fee, that gives this effect, by construction of law to the acts of the party. Possession, per se, evidences no more than the mere fact of present occupation, by right; for the law will not presume a wrong; and that possession is just as consistent with a present interest, under a lease for years or for life, as in fee. From the very nature of the case, therefore, it must depend upon the collateral circumstance^^ what is the quality and extent of the interest claimed by the party; and to that extent, and that only, will the presumption of law go in his favor. And the declarations of the party, while in possession, equally with his acts, must be good evidence for this purpose. If he claims only an estate for life, and that is consistent with his possession, the law will not, upon the mere fact of possession, adjudge him to be in under a higher right, or a larger estate. If, indeed, the party be in under title, and, by mistake of law, he supposes himself possessed of a less estate in the land than really belongs to him, the law will adjudge him in pos-^ session of, and remit him to, his full right and title. rFor a mistake of | law shall not, in such case, prejudice the right of the party; and his- possession, therefore, must be held coextensive with his right. This is " the doctrine in Littleton, section 695, cited at the bar; and better au- thority could not be given, if indeed so obvious a principle of justice required any authority to support it. But there the party establishes a title in point of law greater than his claim ; whereas, in the case now supposed, the party establishes nothing independent of his possession, and that qualified by his own acts and declarations. This is the dis- tinction between the cases, and accounts at once for the different prin- ciples of law applicable to them. It has also been argued at the bar that a person who commits a dis- seisin cannot qualify his own wrong, but must be considered as a dis- seisor in fee. This is generally true ; but it is a rule introduced for the benefit of the disseisee, for the sake of electing his remedy. For if a man enter into possession, under a supposition of a lawful limited right, as under a lease, which turns out to be void, or as a special occupant, where he is not entitled so to claim, if he be a disseisor at all, it is only at the election of the disseisee. Com. Dig. Seisin, F. 2, & F. 3 ; 1 Roll. Abrid. 662, L. 45; Id. 661, L. 45. There is nothing in the law which prevents the disseisee from considering such a person as a mere tres- passer, at his election ; or which makes such an entry, under mistake for a limited estate, a disseisin in fee absolutely, and at all events, so that a descent cast would toll the entry of the disseisee. But were it Ch. 1) POSSESSORY TITLES 47 Otherwise, in order to apply the doctrine at all, it must appear that the party f ovmd in possession entered without right, and was, in fact, a dis- seisor; for if his entry were congeable, or his possession lawful, his entry and possession will be considered as limited by his right. For the law will never construe a possession tortious unless from necessity. On the ofher hand, it will consider every possession lawful, the com- mencement and continuance of which is not proved to be wrongful. And this upon the plain principle, that every man shall be presumed to act in obedience to his duty, until the contrary appears. When, therefore, a naked possession is_m_proof, unaccompanied by evidence as t o its origin, it will be deemed lawful and coextensive with thS right set up by the party. 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. And it is only when the party is proved to be in by disseisin, that the law will construe it a disseisin of the fee, and abridge the party of his right to qualify his wrong. Now, in the cas e^at bar, it is not proved of what estate Thomas Dud- ley died seised in the premises. His possession does not appear to have been accompanied with any claim of right to the inheritance. It might have been an estate for life only, and as such have had a lawful commencement. If it were intended to be argued that he had a fee in the premises, it should have been established by competent proof that he was in possession, claiming a fee by right or by wrong. No such fact appears. The only fact, leading even to a slight presumption of that nature is, that his widow took one third of the rents and profits during her life. But whether this was under a claim of dower, or any other right, is not proved. The circumstance is equivocal in its charac- ter, and is unexplained ; and the inference to be deduced from it, of a descendible estate in her husband, is rebutted by the fact that immedi- ately on his death his son WiUiam entered into the premises, claiming a life estate, and held them during his life as his own, without any claim on the part of the co-heirs of his father to share in the estate. There i s then nothing^in the case, from which it can be judicially infer- redtjhat Thomas was ever seised of an estate of inheritance in the premises, and, of course, none of a descent from him to his heirs. Then, as to the estate of his son William, in the premises. It is ar- gued that William had an estate in fee, by right or by wrong. That if his entry, either in person or by his guardian, was without right, it was a disseisin, and invested him with a wrongful estate in fee. If with right, then it must have been as a co-heir of his father, and a grant ought to be presumed from the other co-heirs to him, releasing their title and confirming his. The doctrine, as to presumptions of grants, has been gone into largely on the argument, and the general correctness of the reasoning is not denied. There is no difference in the doctrine, whether the grant relate to corporeal or incorporeal hereditaments. A grant of land may as well be presumed as a grant of a fishery, or of common, or of a way. 48 ORIGINAL TITLES (Part 1 Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. They may, therefore, be en- countered and rebutted by contrary presumptions ; and can never fairly arise where all the circumstances are perfectly consistent with the non- existence of a grant; a fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a grant. In general, it is the policy of courts of law to limit the presumption of grants to periods analogous to those of the statute of limitations, in cases where the statute does not apply. But where the statute applies it constitutes, ordinarily, a sufficient title or defence, independently of any presumption of a grant, and therefore it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a^ ^rant may as well be made in the one case as in the other ; and where . the other circumstances are very cogent and full, there is no absolute bar against the presumption of a grant, within a period short of the statute of limitations. See Phillips on Evidence, ch. 7, § 2, p. 126; Foley V. Wilson, 11 East, 56. If we apply the doctrines here asserted to the case at bar, we may ask, in the first place, what ground there is to presume any grant of the premises to William Dudley, and if any, what was the quantity or quahty of his estate? It has been already stated that there is no suffi- cient proof that his father died seised of a descendible estate in the premises ; and if so, the entry of William by his guardian, or in person, cannot be deemed to have been under color of title as heir; and in point of fact he never asserted any such title. For the same reason, no estate can be presumed to have descended to his co-heirs; and if so, the very foundation fails upon which the presumption of a grant from them to William can be built ; for if they had no title, and asserted no title, there is no reason to presume that he or they sought to make or receive an inoperative conveyance. There is no pretence of any pre- sumption of a grant in fee from any other person to William ; and as there is no evidence of any connection with the will of Governor Dud- ley, or of any claim of title under it by William, there does not seem any room to presume that he was in under that will, upon mistaken constructions of his title derived from it. There is this further diffi- culty in presuming a grant from the co-heirs to William, that at the time of his own entry, as well as that of his guardian, all of them were under age, and incapable of making a valid conveyance. During this period, therefore, no such conveyance can be presumed ; and yet Wil- liam, during all this period, claimed an exclusive right, and had an ex- clusive possession of the whole to his own use; and his subsequent possession was but a continuation of the same claim without any inter- Cll.- 1) POSSESSORY TITLES 49^ ference on the part of the co-heirs. In point of fact the youngest brother arrived at age about the time of WilHam's death ; and as to two others of the co-heirs, the statute of Hmitations of Connecticut, as to rights of entry, would not then run against them. The pr esumption of a grant from them is therefore, in this view, also, affected with an in- trinsic infirmity. in addition to all this, William nev er .claimed. .any estate in fee in thejpremises. His declaration uniformly was that he had a life estate only, and that upon his death they would descend to his son Joseph. Of the competency of this evidence to explain the nature of his pos- session and title, no doubt can reasonably be entertained. His ti tle being^ eviden ced only by po ssessio n, it must be limite d in , itsextentjQ the claim which he asserted. If, indeed, it had appeared that he was in under a written title which gave him a larger estate, his mistake of the law could not prejudice him; but his seisin would be coextensive with, and a remitter to, that title. But there is no evidence of any written title, or of any mistake of law in the construction of it. JFor aught that appears, William's estate was exactly what he claihied, a fife-estat e only, and the inheritance belonged to his son Joseph. It is material also to observe that the acts of the parties, and the possession of the estates during the period of nearly fifty years, are in conformity with this supposition, and at war with any other. Why should Wil- liam's brothers and sisters have acquiesced in his exclusive possession during his whole life, if the inheritance descended from their father ? Why should Joseph's brothers and sisters have acquiesced in his exclu- sive possession during a period of twenty-five years without claim, if their father William was seised of the inheritance? Why should the guardians of William and Joseph have successively . entered into the premises, claiming the whole in right of their respective wards, if their title was not deemed clearly and indisputably an exclusive title, or if they were in by descent under the title of their fathers? If, indeed, a presumption of a grant is to be made, it should be of a grant con- forming to the declarations and acts of possession of the parties during the whole period; and if any grant is to be presumed from the facts of this case, it is a grant of a particular estate to William, with a re- mainder of the inheritance to Joseph, or in the most favorable view of an estate tail to William, upon whose death the estate would descend to Joseph, as his eldest son per formam doni. If Thomas, the grand- father, were proved to have been the owner of the fee, there is nothing in the other circumstances which forbids the presumption of such a grant from him ; but as the cause now stands, it may as well have been derived from some other ancestor, or from a stranger. It is therefore the opinion of this court that the circuit court erred in directing the jury that William, by mistaken constructions of the will of Governor Dudley, might have claimed an estate for life in the premises, and that such mistake would not operate to defeat his title by possession, for Aig.Prop. — 4 50 ORIGINAL TITLES (Part 1 there was no evidence that William ever claimed under that will ; and also erred in instructing the jury that they were authorized to pre- sume a grant by the children of Thomas to William. The compromise entered into by Joseph with two of his brothers is not thought to change the posture of the case, because that compromise was made with an explicit denial of their right; and is therefore to be considered as an agreement for a family peace. * * * The remaining consideration under this head is, whether the posses- sion of Joseph Dudley can be considered as an adverse possession so as to toll the right of entry of the heirs, and, consequently, extinguish, by the lapse of time, their right of action for the land, as well as ex- tinguish by analogy of principle the power of the administrator to sell the land. It is said that the entry of Joseph into the premises is con- sistent with the potential right of the creditors ; that he had a right to enter as a co-heir of his father, and jf he_entered as co-heir, hi s pos- session was not adverse, but was a possession for the other heirs and creditors, and he could not afterwards hold adversely, or change the nature of his possession, for the creditors might always elect to con- sider him their trustee. There is no doubt that in general, the entry o f one heir will enure to the benefit of all, and that if the entry is made as heir, and without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with, the rights of the other heirs. But it is as clear that one heir may disseise his co-heirs, and hold an adverse possession against them, as well as a stranger. And, notwithstanding an entry as heir, the party may, afterwards, by dis- seisin of his co-heirs, acquire an exclusive possession upon which the statute will run. An ouster, or disseisin, is not, indeed, to be presume;d from the mere fact of sole possession ; but it may be proved by such possession, accompanied with a notorious claim of an exclusive right. And if such exclusive possession will run against the heirs, it will, by parity of reason, run against the creditors. For the heirs, qua heirs, are in no accurate sense in the estate as trustees of the creditors. They hold in their own right by descent from their ancestor, and take the profits to their own use during their possession ; and the most that can be said is, that they hold consistently with the right of the creditors. The creditors, in short, have but a lien on the land which may be en- forced through the instrumentality of the administrator acting under the order of the court of probates. But in order to apply the argument itself, it is necessary to prove that th e ancestor had an estate of inheritance, and that the party entered_as _hein Now, inthe c^e^ at bar, all the circumstances point the other__wa3:. There is not, as has been already intimated, any proof that William Dudley died seised of an inheritance in the land; and there is direct proof that he asserted the inheritance to be in his son Joseph ; and the entry of the guardian of Joseph, as well as his own entry, after his arrival of age, was under an exclusive claim to the whole, not by descent, but by title distinct or paramount There Ch. 1) POSSESSORY TITLES 51 is certainly no incapacity in an heir to claim an estate by title dis- tinct or paramount to that of his ancestor ; and if his possession is exclusive under such claim, and he holds all other persons out until the statute period has run, he is entitled to the full benefit and pro- tection of. the bar. It appears to us, therefore, that the jury ought to have been instructed, that if they were satisfied that Joseph's possession was adverse to that of the other heirs, and under a claim of title distinct from, or paramount to that of his father, during his twenty-five years of exclusive possession, the entry of the purchaser, under the administrator's sale, was not congeable, and that the pow- er of the creditor over the estate was extinguished. There was there- fore error in the opinion of the court to the jury, that. js_aga inst the creditors of William Dudley ^ neither Jo seph nor _th e^ tenant had gained any t itle tq^the land in controve r sy by possess ion^ For these reasons the judgment of the circuit court must be j;e- _ yersed j and the cause remanded, with directions to the court to order a venire facias de novo.^® / '^/■^ FRENCH V. PEARCE. ^-A.>^.^.. ^a.. (Supreme Court of Errors of Connecticut, 1831. 8 Conn. 439, 21 Am. Dec. 680.) This was an action of trespass quare clausurn Jregit^; tried at Litch- field, February term, 1831, before Williams, J. The plaintiff and defendant were adjoining proprietors of land; and the land in controversy was the border between them, which was wood-land, unfenced. Both parties claimed under William French, the fa ther of the plaintiff' and of the defendant's wife. The plaintiff's title was admitted, unless the land was conveyed to the defendant's wife, by a deed dated the 11th of May, 1809; in which the line on the side adjoining the plaintiff was particularly described. A part of the description was "from a butternut tree a straight line to Piatt's corner — said piece being the same land v/hich the grantor bought of Rev. Mr. Benedict." The defendant contended, that as the deed to his wife re- ferred to the land purchased of Mr. Benedict, he might shew where were the bounds of that lot ; and claimed, that by those bounds, there was not a straight line from the butternut tree to Piatt's corner. This was accompanied with evidence, by which he claimed to have shewn, 18 See Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. 624 (1837). The posse ssion npr] occupancy of vacant land by a mere squatter is not adverse, so as to ripen into a title by adverse possession . See Jll«lJ(ii'feou v" Schamikow, IbO i'ed. bU, SO U. (J. A. 3*3, 15 L. K. A (N. S.) 1178 (1907) Mattson v. Warner, 115 Minn. 520, 132 N. W. 1127 (1911). W hether the possession \yas under a cTnim o f tii-lp, nr not, is a question of fact, to be baSdled as such on the Trial, and conclusions thereon are ordi narily not disturbed by reviewing courts. Mattson v. Warner, supra. T here is no reouirement that th <^ oinin^: nP fiflp be bona fld e. Rupley v Eraser (Minn.) 156 N. W. 3^0 (1916); Kamapo Mt'g. Co. v. Mapes, 216 N. Y 362, 110 N. E. 772 (1915). J52 ORIGINAL TITLES (Part 1 that he had occupied and possessed the land in question for more than fifteen years, although not included in the straight line mentioned in the deed. The plaintiff denied the occupation of the defendant; and denied also any difference in bounds in consequence of the reference to Mr. Benedict's deed, and any adverse possession by tlie defendant. The judge charged the jury, tliat in considering where were the boundaries of this lot of the defendant's wife, if the description in the deed was doubtful, they might take into consideration the possession or occupation of the defendant, for the purpose of determining those bounds. But if they should find, that the defendant had possessed the land in question, for more than fifteen years, claiming and intending only to occupy to the true line, as described in his deed and no fur- ther, then his possession must be referred to his deed, and it would not be adverse to the plaintiff; and the jury, notwithstanding such possession, must look to the deed, to determine the line of division. The jury returned a verdict for tlie plaintiff; and the defendant moved for a new trial for a misdirection. Q HosMER, C. J. Whether the line of occupancy was the dividing line_ between them, was the point of controversy between the parties. The jury were charged, so far as relates to the deed, that if the line de- scribed in it was doubtful, they might take into consideration the pos- session and occupation of the defendant, for the purpose of deter- mining it. This opinion seems not to be questioned ; nor is it question- able. An occupation of land by the defendant as his own, under the plaintiff's eye, to what he supposed to be the dividing line between him and the plaintiff, and which, for many years, the plaintiff' permit- ted without a question, from the mutual assent of the parties is strong presumptive evidence of the true place of the line. 1 Phill. Ev. "420-422. On the point of title by fifteen years possession, as the only objec- tion made at the trial, was, that the possession of the defendant was not adverse, it must be assumed, that none other existed. Of conse- quence, the controversy is confined to that single point. By a dverse poss^ssiori_is meant a possession hostile to the title of another ; or, In other words, a disseisin of the premises ; and by dis- seisin is understood an unwarrantable entry, putting the true owner out of his seisin. Co. Litt. 153, b. 181. The enqujry, then, is precisely tliis ; what must be the character of the act, which constitutes an adverse possession? This question was directly answered, in Bryan v. Atwater, 5 Day, 181, 5 Am. Dec. 136, and by this Court. A clear and unquestionable rule was intended to be given. The court commenced the expression of their opinion, by saying: "It will be necessary to ascertain pre- cisely the meaning of the terms, 'adverse holding' or 'adverse posses- sion.' " The first principle asserted in that case is, that to render a possession adverse, it is not necessary that it should be accompanied with a claim of title and with the denial of tlie opposing title. The case Ch. 1) POSSESSORY TITLES 53 next affirms that possession is never adverse, if it be under the legal proprietor and derived from him. After these preliminaries, it is en-, quired: "But more particularly, what, in point of law, is an adyei'se.^ jossession ? It is," say the court, "a possession, not under the legal proprietor, but entered into without his consent, either, directly or indirectly given. It is a possession, by which he is disseised and ousted > of the lands so possessed." That there should remain no doubt, they ■ next enquire, what constitutes a disseisin? After shewing negatively, i that it is not requisite to enter claiming title, or denying the title of the legal owner, they remark affirmatively, that it is only necessary for a person to enter and take possession of land as his own ; to take | the rents and profits to himself ; and to manage with the property as ', an owner manages with his own property; that is, tlie person thus • possessing must act as if he were the true owner and accountable to no person for the land or its avails. A criterion is then given to de- termine whether a possession is adverse. "It is only necessary to find out," say the court, "whether it can be considered as the con- structive possession of the legal proprietor." ; I have been thus particular in analyzing tliis case, in which the rea--* sons were drawn up, by a very able and eminent jurist; as it presents, in the plainest language, a sure and most intelligible land-mark, to ascer- tain when a possession is adverse. It is peculiarly observable, that by the reasons given, anxiously laboured as they were, it was intended to put the question at rest for the future. The possession alone, and the qualities immediately attached to it, are regarded. No intimation is there as to the motive of the possessor. If he intends a wrongful disseisin, his actual possession for fifteen years, gives him a title; or if he occupies what he believes to be his own, a similar possession gives him a title. Into the recesses of his mind, his motives or purposes, his guilt or innocence, no enquiry is made. It is for this obvious rea- sonjlthat it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor. — It" is not necessary that I should proceed further, as the point of decision, in the case before us, has been settled, by this Court, and with great precision. At the same time, it may be the more satisfac- tory to shew, that the determination here is in harmony with the deci- sions of other courts. In Westminster-Hall, the character of an adverse possession is well established. The possession of a person denying the title of the owner, or claiming the premises, or taking the whole rents and profits with- out accounting, is held sufficient evidence of actual ouster. Doe d. Fisher & al. v. Prosser, Cowp. 217; Doe d. Hellings & ux. v. Bird, 11 East, 49; Stocker v. Berny, 1 Ld. Raym. 741; s. c. by the name of Stokes V. Berry, 2 Salk. 421. The extent of the doctrine is defined by the following considerations. The possession of a tenant in com- mon is held not to be adverse, without actual disseisin or its equiva- 54 ORIGINAL TITLES (Part 1 lent, as he is presumed to possess for his fellow commoner ; but the possession of an individual entering not under another, is adverse, by a perception of the profits only to his own use. In the state of New York, the entering on land under pretence of title, or under a claim hostile to the title of the true owner, constitutes an adverse possession. Brandt d. Walton v. Ogden, 1 Johns. (N. Y.) 156; Jackson d. Griswold v. Bard, 4 Johns. (N. Y.) 230, 4 Am. Dec. 267; Jackson d. Bonnell & al. v. Sharp, 9 Johns. (N. Y.) 163, 6 Am. Etec. 267. To the same effect is the law of Massachusetts. "To constitute an actual ouster," said Parsons, Ch. J., "of him who was seised, the dis- seisor must have the actual exclusive occupation of the land, claiming i:o hold it against him who was seised, or he must actually turn him out of possession." Kennebeck Purchase v. Springer, 4 Mass. 416, 418, 3 Am. Dec. 227. Boston Mill Corporation v. Bulfinch, 6 Mass. 129, 4 Am. Dec. 120. It is obvious, that a person who takes posses- sion, does not the less claim to hold it against him who before was seised, because he conscientiously believes, that he has right to possess. The law of Maine, so far as it is expressed in the case of Kenne- uec Purchase v. Laboree & al, 2 Greenl. (Me.) 275, 11 Am. Dec. 79, 1^ in perfect harmony with that of the states already mentioned. "The doctrine on this^ subject," said Mellen, Ch. J., "seems to be plain jind well-settled. A possession must be adverse to the true owner, in or- der to constitute a disseisin. The possessor must claim to hold and improve the land for his own use, and exclusive of others." He next states, that in a count on the demandant's seisin, it was never incum- bent on the tenant to prove more than his continued possession and occupancy for thirt}' years next before the commencement of the ac- tion, using and improving the premises after the manner of the owner of the fee ; and he then subjoins, that such possession, unless explained, affords satisfactory evidence to the jury, that such tenant claimed to hold the land as his own. In the case of Brown v. Gay, 3 Greenl. (Me.) 126, the question was, whether the tenant was in possession of certain land by disseisin. He owned a lot denominated No. 3, and was in possession of lot No. 4, claiming that it was part of the former lot. He was, therefore, in possession through mistake. This principle was advanced, by the court, to wit: "If the owner of a parcel of land, through inadvertency or ignorance of the dividing line, includes a part of an adjoining tract within his enclosure, this does not operate a disseisin, so as to prevent the true owner from conveying or passing the same by deed." If the learned court meant to lay down the position, that although the possession was adverse and a disseisin, yet that it was of such a character as not to prevent the owner from transferring the land by deed, the case has no bearing on the one before us. But if it was in- tended to declare, that there was no disseisin at all, by reason of the before mentioned mistake, I cannot accede to the proposition. There Ch. 1) POSSESSORY TITLES 55 was a possession, it was not under the true owner, but it was under a claim of right; and the rents and profits (if any) were received and appropriated to the possessor's use,, without any supposed or assumed accountabiHty. This is a disseisin, by all the cases on the subject, with every mark or indicium of one upon its face. If the possession were incidental to the taking of something off the property, it would be a trespass only. But when the possession [s a permanent object, under a claim of right, however mistaken, what can be a disseisin, if this is not? That the possessor meant no wrong, might be very important, if he were prosecuted for a crime ; for nemo fit reus, nisi mens sit rea. But the motive, which induced the taking possession, is remotely distant from the possession in fact under a claim of right, and in no respect tends to qualify or give character to the act. It was adverse possession and disseisin (innocently happening) with the full intention of the mind to possess exclusively ; and by necessary consequence, a seclusion of the owner from the seisin of his property. I agree with the learned court, that the intention of the possessor to claim adversely, is an essential ingredient. But the person who en- _ters on land belie ving and claiming it to b e hls^wn, dqes^ tlius enter^ and poss ess. The very nature of the act is an assertion of his own title, and the denial of the title of all others. ^t_"iatters not, that the possessor was mistaken, and had he be en better informed, would not have entered on th e land.. This /bears on another subject — the moral nature of the action ; but it does not point to the enquiry of adverse possession. Of whatconse^uence is it to the person disseised, that the disseisor is a n honest man ? His property is held, by another, under a claim of right; and he is subjected to the same privation, as if the entry were made with full knowledge of its being unjustifiable. In the case of Ross v. Gould, 5 Greenl. (Me.) 204, it is said, "a dis- seisin cannot be committed by mistake, because the intention of the possessor to claim adversely, is an essential ingredient in disseisin." .1 do not admit the p rinciple. It is as certain that a disseisin may be committed by rnistake, as that a man may by mistake take possession of land, claiming title and believing it to be his own. The possession is not the less adverse, because the person possessed intentionally, though innocently. But in the moral nature of the act, there is un- doubtedly a difference, when the possessor knowingly enters by wrong. I have been the more particular in my observations, for two reasons. The first is, that the evidence of adverse possession, which is of very frequent occurrence, might be placed on grounds clear and stable : The next, from a serious apprehension that in the law of disseisin, an important change is inadvertently attempted. Adopt the rule, that an entry and 'possession under a claim of right, if through mistake, does not constitute an adverse possession, and a new principle is sub- stituted. The enquiry no longer is, whether visible possession, with the intent to possess, under a claim of right, and to use and enjoy as one's own, is a disseisin; but from this plain and easy standard of 56 ORIGINAL TITLES (Part 1 proof we are to depart, and invisible motives of the mind are to be explored ; and the enquiry is to be had whether the possessor of land acted in conformity with his best knowledge and belief. Inthe case before us, the plaintiff adduced evidence to show, that he entered on the land in question, and possessed it more than fifteen years, uninterruptedly and exclusively, under a claim and belief of right, and appropriating to his own use, without account, all the rents and profits. This was^^adyerse possession and disseisin, and gave him, title under the law of the state. Upon this principle, the charge was incorrect, and a new trial is ad- vised. ihe other judges were of the same opinion, except Peteirs, J., who was absent. New trial to be granted.^' PREBLE V. MAINE CENT. R. CO. (Supreme Judicial Court of Maine, 1893. 85 Me. 260, 27 Atl. 149, 21 L. R. A. 829, 35 Am. St. Rep. 366.) This was a real action brought to deterrriine_ the_di vidin g Hne^ be- tween adjoining .owner s.. The case is stated in the opinion. A principal issue between tlie parties was that of adve rse occupatjon, the plaintiff claiming that thereby he had acquired a title to the dis- puted premises. The testimony bearing upon this issue and coming from the plaintiff's cross-examination, is as follows : "O. Previous to your deed to the railroad of the two rod strip be- tween you and them, was there anything to mark the western bound- ary of their location? A. Yes, there was a fence on their western boundary. Then they took two rods more and moved the fence. I deeded it to them. 19 A. conveyed fifty acres of his land to B. In building a Jiue_fen£e be- tween the two properties A., b y mistake, inclosed seventeen acres of B.'s land, and occnpipd samp for thp nprjori of the f^t'^^"^^' "f limi tatlO B^." In ejectment by B. against A. to recover possession of the seventeen acres, A. c laimed bv adve y;-ip nnsst^ssinn. B. offered to prove that after the fence was built A. said that "he thought the fence was on the con-ect line, but if it left B. with less than fifty acres, the fence would have to be moved." Was the evidence offered materia l? See King v. Brigham, 23 Or. 2G2, 31 Pac. 601, 18 L. H. A. 361 (1892); Schaubuch v. Dillemuth, 108 Va. 86, 60 S. E. 745, 15 Ann. Cas. 825 (1908); Searles v. De Ladson, 81 Conn. 133, 70 Atl. 589 (1908). An ignorant woman, a devisee of certain lands, inclosed 'more than she was entitled to, and occupied same for more than the period of the statute of limitations. In ejectment against her by the paper title owner, she set up the statute. Qn examination during the trial g^i<^ g?^iV^ si^^ "b ad never wan t- ed more than tbe will gav^ Her, Put sne knew the will gave her what"she luid In closed," Was her possession adverse? Johnson v. Thomas, Zo App. L>. L'. 141 (1904). ^ Ch. 1) POSSESSORY TITLES 57 "Q. It was your understanding and also the understanding of the railroad company that the fence was moved back to correspond with the new line? A. Yes, sir. "Q. Your occupation ever since has been based upon that under- standing and supposition, has it not? A. I always supposed that was the line. "Q. When you made your deed to the railroad company of the two- rod strip, and then occupied afterwards up to this fence, you did not intend thereby to encroach on the land which you had just deeded to the railroad? A, I supposed I was using my own land. I moved the fence in at one time two feet. "Q. D'own to the time when you moved it in yourself, the fence was kept as it was put up shortly after the deed of the two-rod strip? A. They told me they had taken two rods. "Q. How long after you delivered to the railroad company your deed of the two-rod strip was the fence moved back to correspond to the new line? A. The fence was moved back before I gave the deed ; it was witliin that year. I was away at sea ; when I came home they told me they had taken it. "O. From that time since you have regarded the fence line as the true line? A. I have. "O. And occupied up to it on that account and on that ground? A. Occupied it on account I thought it was my own land." Whitehouse, J. In this writ of entry the plaintiffs seek to recover a small piece of land, triangular in shape, now covered by a portion of the defendant's freight platform at the Richmond station. The case is presented on report and discloses no material controversy respecting the facts. The rights of the parties must, therefore, be determined by applying the established principles of law to the fair and reasona- ble inferences drawn from the facts proved or admitted. The original location of the defendant's railroad in 1848 was made four rods in width at the point in question, its westerly boundary be- ing the easterly line of the premises then owned by the plaintiff's fa- ther. But in 1852 the company purchased of the plaintiffs, who had in the meantime acquired title to the property, an additional strip two rods in width, extending across their lot, and adjoining the original location on the westerly side. At the same time the fence which had been erected on the supposed boundary line in 1848, was moved west- erly by the defendant's servants for the purpose of enclosing the two rods then purchased ; but the plaintiff, Israel Preble, testifies that in re-building the fence in "1864 or 1866" he moved it two feet further on to his own land. Prior to 1889 the defendants had used only a part of this additional strip, and hence there had been no occasion for an accurate survey of the land. But when at the last named date, it became necessary to enlarge the freight platform, measures were taken to have the boundary line between the parties definitely ascertained and fixed. It was then discovered from the record of the orisfinal lo- ,/ 58 ORIGINAL TITLES (Part 1 cation that the "central or directing line" of the railroad was not in the centre of the four rods of land taken for the construction of the road, but was twenty-eight feet from the easterly line and thirty- eight feet from the westerly line of the location. It accordingly ap- peared that the true boundary of the defendant's land on the west was thirty-eight feet and two rods or seventy-one feet from the centre of the main track of the railroad. By this measurement the boundary line was found to be west of the existing fence a distance of two feet and eight-tenths at the southerly end and eight feet and ten inches at the northerly end. Whether the mistake made by the defendant's servants respecting the distance tlie fence should have been moved in 1848, arose in part from an erroneous assumption that the central line of the track was the centre of the location, or otherwise, does not ap- pear, and it is not material to inquire. There is not only no evidence that the main track has been moved at this point since tlie original location but it is satisfactorily shown tliat it has not been moved ; and the simple process of drawing a line seventy-one feet westerly from the centre of the main track and parallel with it now establishes be- yond a doubt the location of the westerly line of the two-rod strip. The triangular piece in controversy is thus conclusively shown to be wholly on the east side of the true line, and hence a part of the land purchased of the plaintiffs in 1852. But Israel Preble, the surviving plaintiff, claims that he cannot at this date satisfactorily locate his easterly line by measurement; and says that he has continually occupied the land to the fence as it existed in 1889 upon the understanding and belief that it marked the true line, and he now claims title to the disputed piece by adverse possession. And the question is, can this claim on the part of the plaintiff be sus- tained on the facts here presented? Clearly not, unless the rule es- tablished by an unbroken line of the decisions of this court covering a, period of nearly seventy years, is now to be overturned. That rule isl that one who by mistake occupies for twenty years, or mbre, land not' covered by his deed with no intention to claim title beyond his actual' boundary wherever that may be, does not thereby acquire title by ad- verse possession to land beyond the true line. Brown v. Gay, 3 Me. (Greenl.) 126; Ross v. Gould, 5 Me. (Greenl.) 204; Lincoln v. Edge- comb, 31 Me. 345; Worcester v. Lord, 56 Me. 266, 96 Am. Dec. 456; Dow v. McKenney, 64 Me. 138. We are aware that the soundness of this doctrine has been question- ed in other jurisdictions. It has been said that the possession is not the less adverse because the person possessed intentionally though innocent- ly; and the further objection has been made that it introduces a new principle by means of which the stable evidence of visible possession under a claim of right, is complicated with an inquiry into the invisible motives and intentions of the occupant. French v. Pearce, 8 Conn. 439, 21 Am. Dec. 680; Wood on Limitati6ns, § 263, and authorities Ch. 1) POSSESSORY TITLES 59 cited. It is manifest, however, that those holding these views have not critically distinguished the decisions of our court upon the subject, and hence have failed to apprehend their true import and exact limitations. A frequent recurrence to elementary truths in any science jsthe greatest safeguard against error, and in the ultimate analysis of the doctrine of adverse possession the distinctive element which supports the rule above stated at once becomes apparent. Indeed it is aptly suggested in the familiar test imposed by Bracton: "Ouaerendum est a judice quo animo hoc fecerit." Co. Littl. 153 b; 8 Mod. Rep. 55. The inquiry must be quo animo is the possession taken and held. There is every presumption that the occupancy is in subordination to the true title, and if the possession is claimed to be adverse the act of the wrong-doer must be strictly construed, and the character of the possession clearly shown. Roberts v. Richards, 84 Me. 1, 24 Atl. 425, and authorities cited. "The intention of the possessor to claim ad- versely," says Mellen, C. J., in Ross v. Gould, supra, "is an' essential ingredient in disseizin." And in Worcester v. Lord, supra, the court says : "To make a disseizin in fact there must be an intention on the part of the party assuming possession to assert title in himself." In- deed the authorities all agree that this intention of the occupant to claim the ownership of land not embraced in his title, is a necessary element of adverse possession. And in case of occupancy by mistake beyond a line capable of being ascertained, this intention to claim title to the extent of the occupancy must appear to be absolute and not con- ditional ; otherwise the possession will not be deemed adverse to the true owner. It must be an intention to claim title to all land within a certain boundary on the face of the earth, whether it shall eventually be found to be the correct one or not. If for instance one in ignorance of his actual boundaries takes and holds possession by mistake up to a certain fence beyond his limits, upon the claim and in the belief that it is the true line, with the intention to claim title, and thus if necessary, to acquire "title by possession" up to that fence, such possession having the requisite duration and continuity, will ripen into title. Hitchings v. Morrison, 72 Me. 331, is a pertinent illustration of this principle. See, also^ Abbott v. Abbott, 51 Me. 575; Ricker v. Hibbard, 7Z Me. 105. -"^i on the other hand a party through ignorance, inadvertence or mistake, occupies up to a given fence beyond his actual boundary, be- : cause he believes it to be the true line, butjias no intention to claim ! title to that extent if it should be ascertained that the fence was on his neighbor's land, ah indispensable element of adverse possession is wanting. In such a case the intent to claim title exists only upon the condition that the fence is on the true line. The intention is not abso- lute^ut pro vision al, and the possession is not adverse. Dow v. Mc- Kenney, 64 Me. 138, is an exceTTeht illustration of this rule. In that case a fence had been maintained on a wrong divisional line by mistake, and it was found by the court as a matter of fact that "none of the ih ^ 60 OEIGINAL TITLES (Part 1 parties had any idea of maintaining any line but the true divisional line and that they occupied according to the fence only because they supposed it was on the true divisional line between them." Upon this finding it was held as a matter of law that such possession was not ad- verse to the right of the true owner. The unconditional intent to claim title to the extent of the occupancy was wanting. See, also, Worcester v. Lord, 56 Me. 266, 96 Am. Dec. 456. Thus it is perceived that possession by mistake as above described may or may not work a disseizin. Itjsjnot merely the existence, o.f_a_ mistake, but the presence or_absence of the requisite intention to claim title that fixes the character of the entry and determines the question of disseizin, ^he two rules are expressly recognized and carefully dis- tinguished in our recent decisions. The distinction between them is neither subtle, recondite or refined, but simple, practical and substan- tial. It involves sources of evidence and means of proof no more difficult or complex than many other inquiries of a similar character constantly arising in our courts. The conclusions of fact which are fairly warranted by the evidence leave no room for doubt that the case at bar falls within the principle last stated. It has already been seen that, prior to 1889, both parties were ignorant of the fact that the fence erected by the plaintiff in "1864 or 1866" was not on the true line. The plaintiff, Israel Preble, himself testifies that after he moved the fence he had always regarded it as the true line ; that he had occupied the land up to the fence upon the supposition and belief that it was the true line and that he had so occupied it because he thought it was his own land. This testimony, viewed in the light of the circumstances and situation of the parties, emphatically negatives the idea that during this time the plaintiff had any intention to claim title to land which did not belong to him. We are warranted in believing that it would do injustice to the plaintiff himself, as well as violence to all the probabilities in the case, to as- sume that immediately after the plaintiff had conveyed the land to the defendant for a satisfactory consideration, he formed the intention of depriving the company of a portion of the same land by disseizin in case the fence should not prove to be on the true line. The conclusion is irresistible that the plaintiff held possession of the locus by mistake in ignorance of the true line, with an intention to claim title only on condition that the fence was on the true line. His possession was, therefore, not adverse to the true owner, and cannot prevail against the valid record title of the defendant. JLudgment for the defendant.-'' Peters, C. J., Walton, Virgin and Haskell, JJ., concurred. Em- ery, T., did not concur. , , , 20 See Richardson v. Watts, 94 Me. 476/487, 48 Atl. ISO (1901) ; Doolittle V. Bailey, S."> Ii)\va. .^98, 52 N. W. 337 (1892) (but see Grube v. Wells, 3-1 Iowa, 148 [1871]) ; JNIiller v. Mills County, 111 Iowa, 654, 82 N. W. 1038 (190O) ^ Ch. 1) POSSESSORY TITLES 61" BOND V. O'GARA. (Supreme Judicial Court of Massachusetts, 1900. 177 Mass. 139, 58 N. E. 275, 83 Am. St. Rep. 265.) Writ of entry, to recover a tract of land situated in Leicester. Plea, general issue. Trial in the Superior Court, before Gaskill, J., who allowed a bill of exceptions, in substance as follows. The d emandant claimed^tit^e through a deed to him on the premises, by one Lanphear, dated March 11, 1899. Lanphear's title came from a deed dated January 5, 1899, also delivered on.Jka.lan.d, to him, by Kate Hanlon and her children, being the children and heirs of her de- ceased husband, John Hanlon. The, tenant claimeii tjtlp thrnngh a lease fromjhe heirs of one Olney, decease d,, dated December 9, 1898o 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 possession^ 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 there- after 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 permis- sion to occupy the same granted to him by Hodges, who became owner of the premises by a deed from Patrick 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 wid- ow 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 premises in question. The evidence tended to show that this occupation of John Hanlon during his life and that of Kate Hanlon was ope n and continuous and exclusive, and the pr incipal question in r""^ controv ersy was whether the occupation was under a claim of right or under a l icense or permission from Jjodges.- Kate Hanlon testified, 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. Helmick v. Railway Co. (Iowa) 156 N. W. 736 (1916) ; Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, 33 L. R. A. (N. S.) 923 (1911); Skansi v. Novak, 84 Wash. 39, 146 Pac. 160 (1915). 62 ORIGINAL TITLES (Part 1 This evidence was controverted by the tenant, who put in evidence that said Kate Hanlon had stated that Hodges had given to her hus- band and herself the right to occupy the premises and the right to cut the grass, etc. The deeds from Burr to Buchanan, from Buchanan to Hanover, and from Hanover to Hodges, reserved a right to the Leices- ter 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 witliin twenty years, which had been put up by Kate Hanlon, and tliat tliereupon 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 premises. The demandant asked the judge to instruct the jury as follows: L If the owner of the land verbally gave the land to John Hanlon, and thereupon Hanlon entered on the premises and occupied them continu- ously till his 'death, claiming to own them, and was not interfered with in said occupation, and immediately upon his death his widow con- tinued to occupy the same continuously in the same way, and the whole period of such continuous occupation 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 Hanlon, 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 suffi- cient to give a title, under the rules of law given you, but for some li- cense or permission which might qualify such occupation, 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 permis- sion given by Hodges during his ownership is, in itself, of no legal im- portance, as affecting occupancy by Mrs. Hanlon subsequent to the date when he parted with his title, and it could have no farce in this case, unless there is evidence that the grantees of Hodges, while own- ers, renewed or adopted, or in some way intentionally continued or revived, such license or permission. 4. If the occupation of Mrs. Han- lon 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 occu- pation, then said occupation was adverse within the meaning of the law. 5. On the evidence in tlie present case the occupation by Mrs. Hanlon of the premises in question, cultivating the same, cutting the hay and grass on the same, and pasturing her cow thereon, was such Ch. 1) POSSESSORY TITLES 63 occupation as would support an action of trespass on the part of the owner of the estate, in tne absence of any Hcense or permission given by the person who owned the premises at the time of said occupation. The ju dge refused to give_ the instnictions in the form requested^ but after generalmstructions as to adverse possession _ins^truc_ted_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 occupy on the belief that the permission continued, no right could be acquired, but tha t if_ die occupancy was on the belief that the land was theirs, and continued twentj^jears uninterruptedly, being adverse and open, a title_would_be-ac DEAN V. GODDARD et al. (Supreme Court of Minnesota, 1893. 55 Minn. 290, 56 N. W. lOGO.) Appeal by defendant, Fred E. Goddard, from an order of the Dis- trict Court of Hennepin County, Thomas Canty, J., made December 3, 1892, denying his motion for a new trial. The plainli fi^. Alfred J. Dean, brought this action September 2, 1891, under G. S. 1878, ch. 75, § 2, t o determine the adverse cl aims of God- dard, an d all other persons or parties unknown claimmg any rig ht, t itle, estate lien or interest in the real estate described i n th e opmio n. G oddard alone answered. He claimed to have the title in^fee derived from the United States. Plaintiff replied that neither Goddard his ancestor, predecessor or grantor was seized or possessed of the lot witliin fifteen years next before the commencement of the action. That Alfred H. Lindley owned the lot in 1866 and he and wife on August 28, 1866, conveyed it to William D. Washburn, that on or about June 1, 1866, Washburn entered into actual possession of the lot under such deed and he and his grantees have ever since and for more than fifteen years prior to the commencement of this action, 2 6 Premises are owned by A., tenant for life, remainder in fee to B. X. enters into adverse possession, and continues therein for more than the statu- tory period. What effect, if any, does such possession have upon the rights of A.? Of B.? See Moore v. Luce, 29 Pa. 2G0, 72 Am. Dec. 629 (1857) ; Bald- ridge V. McFarland, 26 Pa. 338 (1855), where the remainder may have been contingent. Suppose, in the above case, A. should make a deed purporting to convey the premises to X. in fee, who takes possession, and continues therein for the statutory period. See Cassem v. Prindle, 258 111. 11, 101 N. E. 241 (1913); Hooper v. Leavitt, 109 Me. 70, 82 Atl. 547 (1912). Ch. 1) POSSESSORY TITLES 73 been in actual, exclusive, open, hostile and adverse possession thereof, under claim and color of title and that plaintiff is the remote grantee of Washburn. A jury was waived and the issues were tried before the Court on August 2, 1892. Plaintiff submitted evidence of the possession of the lot by himself and his grantors and read in evidence the several instru- ments under which such possession had been held and rested. The defendant Goddard then proved his paper title from the Federal Gov- ernment down and rested. Th e Court fou ji d plaintiff to be sole own er in fee and in_possession of th e lot and jhat he and his_grantors and predece ssors in interest had been in open, continuous, exclu sive and adverse poss ession thereof, with color of title and paying taxes tHere- on, for a period of twenty years and ordered judgment for plainti ff as pr ayed in his compLaint. The defendant moved the Court to amend its findings so as to show that Washburn's adverse possession commenced on or about August 28, 1866, the date of his deed from Lindley and wife and not prior thereto. This motion was denied. Defendant then moved for a new trial, but was denied and he appeals, claiming the evidence does not show actual, continuous hostile occupation of the lot by plaintiff and his grantors for an uninterrupted period of fifteen years at any time since Washburn obtained his deed from Lindley. The discussion here was upon this evidence, whether it sustained the finding of adverse pos- session. Buck, J. The jC|^uesti_on_raised in this case is whether the plaintiff has acquired title by adverse possession to the premises described in the complaint, viz. the front half of lots one (1) and two (2) in block sixty-seven (67) in the city of Minneapolis. The action was commenced in August, 1891. In his complaint the plaintiff alleges that he is in possession, and is the owner in fee sim- ple, of the premises above described, and that the defendants claim some estate or interest in the premises adverse to the plaintiff, and prays that the claims of the respective parties be adjudged and de- termined, and that title to said premises be decreed to be in the plain- tiff'. The defendant Goddard answered, and alleged the title in fee to be in himself. The plaintiff replied, and such reply will be refer- red to hereafter. Plaintiff's contention is that he acquired titlQ by possession held ad versely for such a length of time as to create a. title in himself. Under G. S. 1878, ch. 66, § 4, the time limited for commencing ac- tions for the recovery of real property was fixed at twenty years ; but on April 24, 1889, the law was changed to fifteen years, not to take effect, however, until January 1, 1891. The law, as amended, would be applicable to actions commenced after January 1, 1891, and prior to the time of the- commencement of this action, in September, 1891 ; but this would not render the law existing prior to the amendment inap- plicable to causes of action, when there was twenty years' adverse 74 ORIGINAL TITLES (Part 1 possession before the time when the change took effect. The period, however, rehed upon, need not be the twenty years immediately pre- ceding the 1st day of January, 1891, It would be sufiicient if the pos- session relied upon was continuous for twenty years up to any certain or definite time. Of course, the twenty years would have to be com- plete before the bringing of the action; but such twenty years need not, necessarily, be those next before the time when the action is com- menced. In this case, if the inception of the plaintiff's adverse pos- session was in the months of June or August, 1866, and became per- fect by continued adverse possession until the month of June or August, 1886, then the title thereby created would not be lost or forfeited by any subsequent interruption of the possession, unless by some other adverse possession for such a length of time as would create title in the possessor. The court below found the allegations in the plaintiff's complaint to be true, and that he was, at the time of the commencement of this action, the sole owner, in fee, and in the lawful possession, of the premises described in the complaint, and that he and his grantors and predecessors in interest had been in the open, continuous, exclusive, and adverse possession of the premises, with color of title, and paying taxes thereon, for a period of twenty years, and that he was entitled to the decree and judgment of the court declaring him to be the abso- lute owner of the premises. We think a title acquired by adverse possession is a title in fee simple, and is as perfect as a title by deed. The legal eft'ect not only bars the remedy of the owner of the paper title, but divests his estate, and vests it in the party holding adversely for the required period of time, and is conclusive evidence of such title. To say that the statutes upon this subject only bar the remedy, as some authorities do, is only to leave the fee in the owner of the pa- per title ; thus leaving the owner with a title, but without a remedy. We think the better and more logical rule is to hold that the occu- pier of the premises by adverse possession acquires title by that pos- session, predicated upon the presumption or proven fact that the prior owner has abandoned the premises. Adverse possession ripens into a perfect title. This title the adverse possessor can transfer by con- veyance, and when he does so he is conveying his own title, and not a piece of land where the title is in some other person, who is simply barred of any remedy from recovering it. See Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483; Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312, 10 L. R. A. 387, and cases there cited. Now, if there is any cloud resting upon such title, he has a legal right to apply to the court, and have his rights adjudicated, and the title per- fected by judgment record, if the evidence sustains his claim. Con- siderations of public policy demand that this should be so, for the claim of title to lands can thus be found of record, instead of resting in parol, with all of its incidental dangers and trouble in establishing title. Ch. 1) POSSESSORY TITLES 75 Now let us consider the question raised by the defendant, as to whether one of the plaintiff's predecessors, Washburn, entered into the adverse possession of the premises June 1, 1866, or August 28, 1866. The plaintiff claims such entry was on the 1st day of June, and the defendant insists that the true date, if there was any such adverse entry at all, is shown by plaintiff himself, in his reply, to be August 28, 1866. The importance of these dates arises from the fact tliat there is evidence tending to show an adverse possession of the prem- ises by the predecessors of plaintiff' until the middle of July, 1886; and if the period of twenty years commenced June 1, 1866, of course, the expiration of that period would be June 1, 1886, and if the period commenced August 28, 1866, the twenty year period would expire August 2^, 1886. Thus, the true date becomes material. The plain- tiff", in his amended reply, inserted the following allegation, viz. : "That on or about the 1st day of June, 1866, and more than fifteen years prior to the commencement of this action, said William D. Washburn, under the deed hereinbefore recited, executed to him by said Lindley, and claiming thereby to be the owner of said premises, en- tered into possession and actual occupation of the same." The deed referred to bears date August 28, 1866. It may be that there is suffi- cient undisputed evidence to show an adverse possession during this particular time, but we think that, under the circumstances, the par- ties are entitled to the opinion of this court upon this phase of the case. The fa ult of the^defendant's position is this : That he allowed the plaintiff to introduce and prove beyond dispute, by parol evidence, without objection, that Washburn entered upo n these premises June 1, 1866 . The rule, therefore, that the written allegations of the pleadings should control, does not apply. The defendant did not move to have the pleadings made certain and definite, nor to compel the plaintiff' to elect upon which of the dates he would rely as the time of W^ash- burn's entry upon the premises, but remained silent, and allowed the date of June 1, 1866, to be undisputably proven by the plaintiff. The allegations in the reply were repugnant as to the dates of Washburn's entry, but the defendant, by his conduct, waived his right to insist now that the date of such entry should be determined as of August 28, 1866. He is esj opped by the admitted parol evidence from in- sisting that the written pleadings should be construed in his favor, and against the plaintiff. There is no dispute, however, that Washburn did procure a deed of the premises from Lindley dated August 28, 1866; and the defend- ant therefore contends that Washburn's entry, if adverse at all, should only be considered as having commenced on the date of the deed. To support this contention, he invokes the doctrine that one who enters upon land under a mere agreement to purchase does not hold adversely, as against his vendor, until his agreement has been fully performed, so that he has become entitled to a conveyance. This 76 ORIGINAL TITLES (Part 1 doctrine is not applicable to this case. Washburn's entry and holding was not under this defendant, nor any of his predecessors holding paper title. As we have already stated, it appears that he was in possession on the 1st day of June, 1866; and whether by permission of Lindley, or by his own voluntary entry, is immaterial, as to his rights against parties other than Lindley, and Lindley is not complain- ing, or questioning his rights, or time of entry. Nor is defendant claiming title under Lindley. If permissive possession, with parol executory conditions attached, would not constitute adverse possession as between the parties, yet it might constitute adverse possession as against third persons or strangers. 'Washburn's entry was adverse as against those under whom defendant claim's by paper title. If, therefore, Washburn's entry, of June 1, 1866, was his own adverse act, and he so continued in possession of the premises until long after August 28, 1866, tliere is no need of considering the doctrine of tack- ing, or the necessity of the continuity of possession. Obtaining a deed to the premises from Lindley would not destroy Washburn's previous adverse possession, nor break its continuity. He ha d a right to strengthen_his_ adverse claim to the premises, if possible, by as niany written conveyances from other parties claiming any interest therein as he saw fit, and thus give him color of title, and perhaps define the boundaries of the premises claimed by him. The essential ingredients necessary to create title by adverse pos- session are now so well defined and understood that we shall not enter into any argument or discussion to show what they are. We merely state them in this connection that we may the more conveniently ap- ply them to the undisputed facts in this case. "To je ad verse, posses- sion mustbe actual, open, continuous, hostile, exclusive, and accom- -^ panFed by an intention to claim adversely." Sherin v. Brackett, 36 llinn. 152, 30 N. W. 551. This leads us to the question raised by defendant, that the court below did not find, specifically, that plaintiff's possession, or the pos- session of his predecessors, was hostile. But it did find that such possession was open, continuous, exclusive, and adverse during the requisite period. The greater includes the le^s. If it \yas adverse, it was h ostile. In Sedg."& W7 Tr." Title Land, § 749, it is said that "it is tautology to say that adverse possession must be 'hostile.' " Such hos- tility may be manifested by acts of possession and use of the prem- ises, plainly visible, actual, open,, and continuous, such as appeared in this case, by using the premises for many years as a lumber yard, building a barn and shed thereon in 1866 or 1867, and keeping the same on the premises until they burned down, in March, 1884, and keeping a large number of horses on the premises and in the stables for many years. Also, storing machinery, lamp posts, castings, and other personal property, putting a large sign on the lot, with notice thereon that it was for rent, for a long term of years, were acts of hostility, as tending to show very strongly that someone was assuni- Ch. 1) POSSESSORY TITLKS 77 ing dominion over the premises, and had intended to, or was usurping the possession. If, as was said by the Court in Stephens v. Leach, 19 Pa. 263, the adverse possessor "must keep his flag flying," yet it is no less essen- tial that the actual owner should reasonably keep his own banner unfurled. The law, which he is presumed to know, is a continual warn- ing to him that if he shall allow his lands to remain unoccupied, un- used, unimproved, and uncultivated, he may by adverse possession for a long period of time, fixed by law, be disseised thereof, and be deemed to have acquiesced in the possession of his adversary. In this case, the actual owners by paper title have never occupied tlie premisessince the first owner obtained his title from the. government, in 1855 or 1856. Considerations of public policy, demand that our lands should not remain for long periods of time unused, unimproved, and unproductive. Taxes should be promptly paid. It nowhere ap- pears that the owners by paper title have ever paid any taxes, but they have allowed the adverse occupants, during a period of many years, to pay n early ^5,000 taxes upon the premises. Payment of taxes sho wg claim of title. Paine v. Hutchins, 49 Vt. 314. We can readily understand how these statutes are called "statutes of repose." The burdens of government must be met; its educational interests pro- vided for; its judicial, legislative, and executive functions main- tained ; and to do this our real property must be made productive, to the end, among other things, that taxes may be raised and paid from land not subject to continual litigation, but the titles thereto quieted. If the selfish, the indolent, and the negligent will not do this, there is no more merit in their claim than that of the adverse possessor, who does so, whatever may be said of the harshness of the statute of limi- tation. The settlement and improvement of the country, with its con- segiient prosperity, should be superior and paramount to the specu- lative rights of the land grabber, or selfish greed of those who seek_ large gains through the toil, labor, and improvements of others. The hostile possession of the adverse claimants in this case fully appears. The possession has been open, visible, hostile, and notorious, as appears from the evidence. It has been exclusive, for no one else has made any claim to it. Those who have been on the premises, oth- er than plaintiff or his predecessors, have made no claim of right, but have paid rent to the adverse claimant, or were there simply as tres- passers, which would not break the continuity of possession. The intent to claim may be inferred from the nature of the occupancy. Oral declarations are not necessary. Possessory acts, to constitute adverse possession, must necessarily depend upon the character of the property, its location, and the purposes for which it is ordinarily fitted or adapted. If a person should take possession of farm land, build a barn and shed thereon, and allow them to remain there for years, plow and cultivate the land and harvest the crops, pay taxes on the premises, and actually occupy them, for such a period of time, 78 ORIGINAL TITLES (Part 1 as is usually done by the actual owner of such farm land, with such open, notorious, visible, hostile, and exclusive acts as would destroy the actual or constructive possession of the true owner, if continued long enough, it would ripen into a complete title, although there might not be actual residence upon the premises by the adverse claimant or possessor. The acts necessary for such purpose might be different with a city lot. The question is to what purpose may it be ordinarily fit and adapted, and reasonably used. In a large manufacturing city, with vast lumber interest, the use of a lot for piling lumber thereon, and there storing it or keeping it for sale, might be the best use to which such lot could possibly be adapted. And, as part of such busi- ness, the building of a barn and shed thereon, for keeping and stabling horses used in procuring logs, as a part of such lumber business, would constitute a very strong ingredient of adverse possession. Tlie jii ere fact that time may intervene between successive _acts of occupancy^ while a party is engaged in such lumber business, as^By taking his teams from such stable and shed, and using them in pro- curing logs to be sawed into lumber to be by him piled and stored up- on such premises, does not necessarily destroy the continuity of pos-_ session. During such time, the lumber left upon the lot, the barn and shed there remaining, and various_i mplements connected with such lum- ber business used upon the premises, would indic ate that s ome one was ex ercising acts of dominion over the lot, even though the party was occasionally and temporarily absent upon the business for which he was using such lot. We think the whole record herein presents such a state of facts that the court below was justified in its finding and decision. If there was error in admitting testimony showing that sand was removed from the premises after the commencement of this action, it certainly could not have prejudiced the defendant. We find no prejudicial error, and the order of the court below, de- nying a motion for a new trial, is affirmed. ^^ 2 7 See Skipwith v. Martin, 50 Ark. 141. 6 S. W. 514 (1SS7). See, also, Rupley V. Fraser (Minn.) 156 N. W. 350 (1916). A. entered into the possess io n of land, snnpo^iing it belonged to the Un ited SJates, and intending to ac(^T1it'e same unaer the United Stn tes i.nnrt Jaws. I n tact thp innrt had already been acquiretl from^ the government by B. ILttei- A. has been- in possession for the period of the statute of Umitatlons, ne seeks to have his title quieted, or B. sues to recover possession. See Io\va Rail- road Co. v. Blumer, 206 U. S. 482. 27 Sup. Ct. 769, 51 L. Ed. 1148 (1906); Maas V. Burdetzke. 93 Minn. 295, 101 N. W. 182, 106 Am. St. Rep. 436 (1904) ; Boe V. Arnold, 54 Or. 52, 102 Pac. 290. 20 Ann. Cas. 533 (1909); Doe ex dem. Alabama State Land Co. v. Beck, 108 Ala. 71, 19 South. 802 (1895); Heck- eseher v. Cooper, 203 Mo. 278. 101 S. W. 658 (1907); Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153 (1910). t-^fV-v f3^. Ch. 1) POSSESSORY TITLES 79 MITCHELL V. McSHANE LUMBER CO. (Circuit Court of Appeals, Fifth Circuit, 1915. 220 Fed. 878, 1.36 C. C. A. 444.) Walker, Circuit Judge. The testimony of the plaintiff B. D./>^ Mitchell was to the effect t hat he had lived on the land in question (p*^' since 1889 and had been asserting claim to it since that tim e. He did not deny the making of the contract with the Beaumont Lumber Com- pany, which showed a lease by that company to him of the league of land which embraces the 160 acres sued for, but explicitly stated t hat he never relinquished his claim to the 160 acres, but claimed it all the time. The tendency of this evidence to prove adverse posses- sion of the land in question by the plaintiffs for the length of time required to confer upon them the legal title was not as a matter of law destroyed by the proof of the execution by one of them of the lease contract above mentioned. 'That contract evidenced an admission by B. D. Mitchell that he held the land, not as his own, but as the tenant ^^ — of another : but t hat admission was not conclusive against him in fa -^^^tlr v or of the defendant in this suit. In this suit it was permissible for the plaintiff B. U. Mitchell to contradict or explain away the statement or admission shown by his signing the lease contract, which embraced a league of land, and to prove that he in fact claimed the land sued for as his own all the time. That instrument did not five- rise to a n e stoppel upon him in favor of the defendant to the suit, which is a stranger to that instrument, or debar him from proving^ that the fact was other than wdiat the instrument indicated that it wa s. "The rule against varying or contradicting writings by parol ob- tains only in suits between, and is confined to parties to the writings and their privies, and has no operation with respect to tllird p^rcnng^ nor even upon the parties tKemselves in controversies with third per - s ons. * * * But this rule is confined in its operation to the parties . to the written instrument. W hen it comes in question collaterally, in 'irjjCvt%4t^ a suit to which a third party, a stranger tO t^""^ -nrj-ihinprc I'g a jp'-^y, '^ ^i/v neithe r party is estopped from contradicting it, or from proving fac ts *j£k '^^ ij inconsistent with it." Robinson v. Moseley, 93 Ala. 70, 9 South. 372 ; Myrick v. Wallace, 5 Ala. App. 398, 59 South. 704 ; Johnson v. Port- wood, 89 Tex. 235, 34 S. W. 596, 787; Barreda v. Silsbee, 21 How. 146, 169, 16 L. Ed. 86; Sigua Iron Co. v. Greene, 88 Fed. 207, 31 C. C. A. 477; 17 Cyc. 750; Jones on Evidence, § 296. The case of Robinson v. Bazoon, 79 Tex. 524, 15 S. W. 585, which is much relied on by the counsel for the defendants in error, was one between the parties to a written contract relating to the land which was the subject of the suit. The rule there applied was the familiar one which forbids either party to such a contract in a suit between him and another party to it by parol evidence to contradict or vary the terms or effect of the contract. In the opinion rendered in that case so OEIGINAL TITLES (Part 1 it was recosTiized that that rule would not have applied in favor of the plaintiff if he had been a stranger to the contract.made by the de- fendants; the court saying of the case with which it was deahng: "It is not like the case of Portis v. Hill, 14 Tex. 69, 65 Am. Dec. 99, in which it was held t hat the mere ackn owledgrnpn^- r,f Htip jn a t hird party did not preclud e the defendant^; from claiming- that their p ossession was adverse to the plaintiff ." The situation developed by the evidence was that some of it — that showing the making of the lease contract — tended to prove that- the p laintiff's adverse holding was inter rupted on the 4fh dny nf ^Tay, 1 898, while some of it tended to prove that the plaintiffs' adverseJ aoId- i ng was not terminated or interrupted bv that inciden t. This state of the evidence made the question in issue one for the jury ; and the court erred in its ruling to the effect that there was no evidence to support a finding in favor of the plaintiffs. The j udgment of the court below is reversed, and the cause is re- manded, -^ 28 Adverse Possession in Case of Minerals. — When the minerals and surface are owned by the same party, as is ordinarily true, an adverse po s- s essiou of the surface is al-so an adverse possession of the minerals. But when the ownership or possession is divicfed, tne situation presents possi- bilities of serious difficulty. In the latter case possession of the surface by the one entitled thereto, no matter how long continued, can have no effec t upon the rights of the party entitled to the minerals ; and no lenstE^of non- usage"(Wi atfect his rights. Wallace v. Elm Grove Coal Co., 5S W. Va. 449, 52 S. E. 4S5. 6 Ann. Cas. 140 (1905). B. entered into adverse possession of land owned by A. Before the statu- tory bar was complete, B. sold and conveyed by warranty deed the minerals to P., who until later made' no entry thereunder. B. remained in posses sion of the surface beyond the statutorv period, and then died. P. then entered into actual possession of the minerals and, learning that A. made some claim thereto, sued to quiet title. Should he maintain his suit ? Black Warrior Coal Co. V. West. 170 Ala. 346' b4 South. 200 (1910), commented upon in 24 Harv. Law Eev. 5S2. B. entered into adverse possession of land owned by A. After being in possession for a period sliort of the statutory period, B. ponvpyed the land t o X.. resei'ving the minerals. X. went into possession ~of the pu-TtiPi;^, nnd c ontinued therein until the tull running of the sfntute n f 11j;|^^|;a tions' . _^n g ,. meantime no nnp wfj? nnPTj]_fni->v question, then, is, whether "a^cTaiiTi Of ' title, under such an Tristrument. /-^ j and an actual occupancy of part, can constitute a good adverse posses-/ ^ / sion, beyond the parcel so occupied. \.S^ 2 9 The statement of facts is abbreviated, and a portion of the opinion omitted. Aig.Pkop. — 6 i; 82 ORIGINAL TITLES (Part 1 It is well settled, t hat a continued possession, for 20 years, und er p retence or claim of right, ripens into a right of possession, wh ich will toll an entry It has never been considered necessary, to con- stitute an adverse possession, that there should be a rightful title. Jackson v. Wheat, 18 Johns. 44; Smith v. Lorillard, 10 Johns. 356; Smith V. Burtis, 9 Johns. 180; Jackson v. ElHs, 13 Johns. 120; Jack- son V. Todd., 2 Caines, 183. The party who relies on an adverse pos- session, must, in the language of Kent, Chief Justice, in Jackson v. Schoonmaker, 2 Johns. 234, show " a. substantial inclosure , an actu al o ccupancy, a pedis possessio. which is definite, positive an d rjniprinnc;^ when that is the only defence to countervail a legal title ;" and in Doe V. Campbell, 10 Johns. 477, it is said, "adverse possession must be marked by definite boundaries and be regularly continued down, to render it availing." Brandt v. Ogden, 1 Johns. 156. Tjiere is no dou bt- t hat actual occupancy, and a claim of title, whether such claim be b y d eed or Otherwise,'' constitute a valid adverse possession^ to that ex- tent. B ut, when a party claims to hold, adversely, a lot of land, b y p roving actual occupancy of a part only^_ his claini must be under a d eed or paper title . This distinction has been uniformly recognized, ^nd acted upon in this Court. It is on this latter ground, the defendants must rest, if their posses- sion can avail. \Theii" tlefence is, that Z. Piatt, in 1794, conveyed 783 acres to N. Piatt, including the premises ; that the first improve- ment was made in 1794, under Piatt, being a small parcel, not exceed- ing 2 acres, which, together with the premises in question, afterwards taken under him, have been continued to the time of commencing this action. This proof does not make out an adverse possession to the premises. Col or of title, under a deed, and occupancy of part, is su ffi- cient proof as to a single lot; vet it follows, from the doctrine laid down, that the deed, or paper title, under which the claim is ma de. must, in the description, include the premises. If the title is bad, it is of no moment ; b ut_if no^aixds jire ^escribec;!, n othino- can p ass. The deed is a nullity, and never can lay the foundation of a good ad- verse possession, beyond the actual improvement. There is no evi- dence here, to show how far Piatt's claim extended, unless resort is had to the deed. Boundaries, therefore, including the premises, were indispensable, in order to give this defence the semblance of plausibility. The defendants stand on the same ground as if no deed had been pro- duced ; and, then, the possession cannot extend beyond the place actu- ally occupied.'" 3 "The courts have concurred, it is believed, without an exception, in de- fining '59l2£9^ title' to be t hat which in appearance Is title, but which in i ieality ?sTT?TTtfer '*'^Ir. Justic^e baulel, in Wright v. Mattisou, IS How. 50, 56, 15 L. Eel. 280 (1S55) . While there is a decided conflict of authority the general rule seems clearly to be that "color of'tifIe"" reauires some sort' of Avriting! See the many cases collected in 1 Cyc. 10S3; 2 C. J. 170. t^eeT also, l«-eolv-LTrw' Rev. 59. So, also, the cases do not agree as to color of title being provided by an in- Ch. 1) POSSESSORY TITLES 83 In Jackson ex dem. Dervient v. Loyd, decided October term, 1820, but not reported, it appeared that the defendant had a deed for lot No. 4, but took possession of lot No. 5, adjoining, believing it to be his lot, and claiming it as such. It was held, that the defendant could not establish an adverse possession, to the whole lot, by the actual im- provement of a part, because no part of No. 5, was included in the deed. But, if the deed had been perfect in the description, and included 783 acres of Friswell's Patent, the occupancy of a part would not make out an adverse possession to the whole quantity conveyed. The doctrine o f adverse possession^ applied to a farm, or sing^le lot of land, is, i n i tself, reasonable and ji^s t. In the first place, the quantity of land is^small. "Possessions, thus taken, under a claim of title, are, general- ly, for the purpose of cultivation and permanent improvement. It is, generally, necessary to reserve a part for wood land. Good husbandry forbids the actual improvement of the whole. The possessions are, usually, in the neighborhood of others; the boundaries are marked and defined. Frequent acts of ownership, in parts not cultivated, give notoriety to the possession. Under such circumstances there is but l ittle danger that a possession of twenty year'; will he mature d ap-ainst the right owner ; if it occasionally happens, it will arise from a want of vigilance and care, in him who has title. It is believed, that no well founded complaint can be urged against the operation of the principle ; but the attempt to apply the same rule to cases where a large tract is conveyed, would be mischievous indeed. Suppose a patent granted to A, for 2000 acres; B, without title, conveys 1000 of the tract to C, who enters under the deed, claiming title, and improves one acre only ; this inconsiderable improvement may not be Icnown to the pro- prietor, or if known, is disregarded for twenty years. Could it be gravely urged, that here was a good adverse possession to the one thousand acres? If it could, I perceive no reason why the deed from B to C might not include the whole patent, and after the lapse of twen- ty years, equally divest the patentee's title to the whole; for there would exist an actual possession of one acre, with a claim of title to all the land comprised in the patent. No such doctrine was ever intended to be sanctioned by the Court. It may, therefore, be safely affirmed, [t hat a small possessi on, taken under the deed to N. Pia tt, strument voifl on its face. G eBerally, where thp Inst.rnment. though void o n its face, would seem to the ordinary layman to be good there is color^ See the cases collected in 1 Cyc. 1087; 2 C. J. ITtj, 177. As to the necessity that the claimant under the color of title shall have acted in good faith in tak- ing the deed or other instrument, see Gregg v. Sayre, 8 Pet. 253, 8 L. Ed. 932 (1834) ; Foulke v. Bond, 41 N. J. Law, 527 (1879) ; Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171 (1896) : State v. King (W. Va.) 87 S. E. 170 (1915). Color of title may also be of importance in other respects than construc- tive adverse possession. St atutes of limitat ions nnt nncnmmonly nrnviflp fnr a different pprinri ^here there is ad verse po ssession under color of titl e. T'he state statutes should De consuiiea: ~ ■84 ORIGINAL TITLES (Part 1 cannot, under any circumstances, be a valid possession of the who le 783 acres , but is limited to the parcel improved. If the doctrine con- tended for, prevails, it would sanction this manifest absurdity, that a possession under Piatt's deed, which conveyed no title, would, as to its legal effect, be more beneficial, than a possession taken under the proprietors of Friswell's Patent, where there is not only title, but a good constructive possession, in consequence of the grant, and actual occupancy and improvement of a part. It cannot be useful to pur- sue the subject farther.^^ I am of opinion that the plaintiff js entitl ed ^^ jurlprmpnt, fpr_anjin- d ivided fou rth part of the prerni sgiT BAILEY v. CARLETON. (Supreme Court of New Hampshire, 1841. 12 N. H. 9, 37 Am. Dec. 190.) Writ of entry, to recover two tracts of land in the lower village in Bath, one of said tracts being ten rods in length, and the other being f our square rods of land, situated immed iately gnnt]-] ^f ^ r\c\ adjninln pr t h^ fir . st tract ; both constituting a narrow strip of land, situated be- twixt the main road through Bath village, and the xA.nionoosuck river. The tract of land first described, and a house lot opposite to the same, on the other side of the road, were c onveyed to Amp f^ To'^'^^" hv Moses P. Payson, by two several, deeds, executed on the 27th o f March, 1807 : and the tract containing four square rods was conveyed by said Payson, in November, 1807, to Buxton & Blake, who sold to one Morrison, and, in 1810, Morrison sold to said Town. In February. 181.3. Amos Town sold the t hre e tracts of land to h is b rother, Solomon Tow n, and in April, 1^1^, Solomon Town r e-con - veved the house lot opposite the demanded premises, to Amos Town, but did not include, in the description, the strip of land opposite, and now in controversy. October 19th, 1815, Amos Town convpvpd the aforesaid three se v- eral tracts. g;-iving- separate descriptions of each tract, to Eben ezer Carleton. _and subsequently Carleton's title was conveyed to the se Sol c^mon Town, in Tune 1830. conveved the demanded premises t o one John Welsh . Welsh, in February, 1837. conveyed to the plaj^ ff, 31 Chandler v. Spear, 22 Vt. 388 (1850); Thompson v. Burhans, 61 N. Y. 52 (1874) ; Louisville & N. R. Co. v. Gulf of Mexico Land & Improvement Co., 82 Miss. ISO, 33 South. 845, 100 Am. St. Rop. 627 (1903), ace. Hick^ v. yf,^gr,,nr, ;>fL ^ni TOO !^^ Am. Dec. 103 (1864); Marietta Fertilizer Co. v. lilair. iii Am. f>\>i, Sff'^outh. 131 (1911), contra. See, also, Ellicott v. Pearl, 10 Pet. 412, 9 L. Ed. 475 ri836); Kentucky Coal, etc., Co. v. Kentuckv Union Co. (D. C.) 214 Fed. 590, 629 (1914). The matter mav be affected bv statute. See Stevens v. Martin, 168 Mo. 407, 68 S. W. 347 (1902). The state statutes should be consulted. Ch. 1) POSSESSORY TITLES 85 and this suit was brought for the recovery of the demanded prem- ises, the 15th of April, 1837. . It appeared that Ebenezer Carleton, on his purchase of Amos Town in October, 1815, entered into possession of th e house lot named in his deed, and lived on an d o ccupied the same for'many years , until it wa s conveyed to the defendant^ E. Carleton. Jr. In 1821, Ebenezer Car leton caused a small building to be removed on to the land in controversy, and from that time to the present it has remained there, occupied by tenants under him and these defendants. The defendants claimed to hold the land by virtue of peaceable a nd undistQrbed possession, by themselves and their grantor, for a peri od of twenty years, It appeared that until 1821 no building had been; placed upon the premises, and that the premises had not been inclosed in any manner; that from 1815 to 1821, and since, Ebenezer Carleton had been in the habit, occasionally, of leaving carts, ploughs and farm- ing utensils upon this land, and also of leaving lumber upon it. Evi- dence was offered to show that it had been a common practice, by teamsters and owners of lumber, for thirty or forty years, to lay lum- ber upon that side of the road, in Bath village, upon this tract, and above and below it, and that said Carleton and other individuals had been in the habit of laying lumber along the river bank in this man- ner. It was c ontended, by the defendants' rnnnse l that Ebenezer Carleton having entered upon the house lot, claiming title to and occupying the same, s uch entry extended tn the rnnti^nnns tmrtc Hpsrn'hpr^ I'n fhf^ same deed._and that entry and occupation of one of the tracts extende d to the whole, in the same manner as though they had been conveyed in one description — that the defendants' grantor having entered upon and disseized the plaintiff's grantor, October 19th, 1815, and the plaintiff never having reentered before action brought, he had no legal seizin in the demanded premises within twenty years next before the commencement of his action, and his suit, therefore, could not be maintained — and that the laying of lumber on the demanded premises, by persons claiming no right thereto, would not affect the exclusive character of the defendant's adverse possession. The c ourt instructed the jury that an entry upon, and o mi patinn jdj one of the tracts conveyed, would not extend to the other tracts de - scribed in the deed, so^as to give a title to them bv possession — that entry upon, and occupation of, any portion of the demanded premises would extend to the whole tract entered upon — that it was not essen- tial that any portion of the land should be inclosed, in order to con- stitute an adverse possession — t hat such possession might be acquire d b y the laying of lumber upon said tract, or otherwise occupying it a s a place of deposit for farming utensils, &c ., but that such possession must be a n open, ^ vi sible possessi on, such as would give r easonable no- tice of such adverse possession, to the owner. 86 ORIGINAL TITLES (Part 1 A ver dict was rendered for the plaint iff, and the defendants moved to set the same aside, for misdirection. Parker, C. J. The ge nera[ rule^ that where a party having- color of title enters into the land conveyed, he is presumed to enter according to his title, and thereby gains a c onstructive possession of the whole land embraced in his deed, seems to be settled by the current of author- ities. Riley v. Jameson, 3 N. H. 27, 14 Am. Dec. 325 ; Lund v. Parker, 3 N. H, 49, and cases cited. And such entry may operate as a disseizin of the whole tract ; and the possession under it, continued for the term of twenty years, may be deemed an adverse possession, which will bar the entry of the own- er after that lapse of time. 3 N. H. 49; Jackson v. Ellis, 13 Johns. (N. Y.) 118; Jackson v. Smith, 13 Johns. (N. Y.) 406; Jackson v. Newton, 18 Johns. (N. Y.) 355. Exceptions h ave been suggested to the rule in some cases. One is, vhere a large tract of land is embraced in the deed, and a small part only has been improved. Jackson v. Woodruff, 1 Cow. (N. Y.) 276, 13 Am. Dec. 525 ; Jackson v. Vermilyea, 6 Cow. (N. Y.) 677. Another, where the deed under which the claim is made includes a tract greater than is necessary for the purpose of cultivation, or ordinary occupan- cy. Jackson v. Oltz, 8 Wend. (N. Y.) 440. These exceptions seem not to be very definite in their application, for lots, like other things, are large or small by comparison, and a tract which would be much too large for cultivation by one, would not suffice for another. But they serve to show the principle upon which the rule is founded. It is, t hat the entrv an ri pn<;c;p<; c;inn of the part y i s notice to the owner of a claim asserted to the land: that the limit s of such claim appear from the deed ; and that if the owner for twenty years after such entry, and after notice, by means of the possession, that an adverse claim exists, asserts no rights^ he mav w pH b"" prp<^nmpd t o have made some jQ-rant or convevance. co-extensive with the limi ts of the claim set up ; or that, after such lapse of time, a possession u n- d er such circumstances, ought to be quieted,. There should be something more than the deed itself, and a mere entry under it — something from which a presumption of actual notice may reasonably arise. It is not necessary to sh ow actna] Irnnw1pr1crp_r>f the j]eed. Acts of Ownership, raising a reasonable. presuni2tii)n that the owner, with knowledge of them, must have understood that there was a claim of title, may be held to be constructive notice , that is, con- clusive evidence of notice. Rogers v. Jones, 8 N. H. 264. The owner may well be charged with knowledge of what is openly done on his land, and of a character to attract his attention. The presumptio n of notice ad se-s. from the ncrupation, long continued: and the notice of the claim may well be presumed, as far as the occupation indicates that Ch. 1) POSSESSOEY TITLES 87 a claim exists, and the deed, or color of title, serve to define specifically the boundaries of the claim or possession, j f the o ccupation is not oi. a character to indicate a claim which may be co-extensive witli the., limits of t lic deed, llien the principle that the party is presumed to ^nter adversely according to his title, has no sound application, and the advers e possession may be limited to the actual occupation. Thus cutting wood and timber, connected with permanent improve- ments, may well furnish evidence of notice that the claim of title ex- tends beyond the permanent improvements, and the deed be admitted to define the precise limits of the claim and possession, provided the cutting was of a character to indicate that the claim extended, or might extend, to the lines of the deed. It might, at least, well indicate a claim to the whole of a tract allotted for sale and settlement, of which the party was improving part, unless there was something to limit the presumption.] But no presumption of a claim, and of color of titl e b eyond the actual occupation, could arise respecting other lots than t hat of which the party was in possessio n. And where the possession was in a township, or other large tract of land, which had never been divided into lots for settlement, no particular claim, beyond the actual occupation, would be indicated, and of course no notice of any such claim of title should be presumed. Jackson v. Richards, 6 Cow. (N. Y.) 617; Sharp v. Brandow, 15 Wend. (N. Y.) 597. I f the possession was not of a character to indicate ownership, a nd to give notice to the owners of an adverse claim, although the grantee might be held to be in possession according to his title, in a contro- versy with one who should make a subsequent entry without right, his possession ought not to be held adverse to the true owner, to the ex- tent of his deed, merely by reason of the deed itself, even if recorded, nor by any entry under it. There are several cases which tend to sus- tain this view of the principle. Poignard v. Smith, 6 Pick. (Mass.) 172, 176; Alden V. Gilmore, 13 Me. 178; Prop'rs of Kennebeck Purchase V. Springer, 4 Mass. 416, 3 Am. Dec. 227; Hapgood v. Burt, 4 Vt. 155; Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. 624; Little v. Megquier, 2 Greenl. (Me.) 176. We are of opinion that the rule cannot apply to a case where a party, having a deed which embraces land to which his grantor had good title, and other land to which he had no right, enters into and posses- ses that portion of the land which his grantor ow^ned, but makes no entry into that part which he could not lawfully convey. There is no notice in such case to the owner of the land thus embraced in the deed, and no possession which can be deemed adverse to him. . If it may be said that the color of title gives such a constructive seizin and po sses- sio n that the grantee could maintain trespass against any person who d id not show a better right, (that is, a title, or prior possession,) the re is nothmg in the nature of it which can give it the character of a dis- v 88 ORIGINAL, TITLES (Part 1 seizin, or possession adverse to the true owner, so as to bind him . JEox t hat purpose, there must b eactualoo^s^OiL of some portion oM he l and of such owner , and that of a natu re to give notice of an adve rse claim* ,,. It is not necessary to settle whether an entry into an enclosed lot, under a deed purporting to convey unenclosed lands adjoining, belong- ing to the same person, would operate as a disseizin of the latter. Where two separate lots inr.lyded in thp <;pj7i^ de^d. belong to differe nt owners, a n entry into on e can in no way operate as a disseizin in re la- tion to the other. ~ "" The entry into the house lot, therefore, to which Amos Town, who '^conveyed, had title, was no disseizin of Solomon Town, who had title to the lot unenclosed, on the other side of the road, y^-j ^ The next question is, w hat en tryjnto th e land itself is s_ufficient. Here was an entry in 1821, upon the tract in dispute, and a posses- sion, by placing a building on it, by Ebenezer Carleton, the grantor of the defendants. This was, without doubt, an act of ownership. The character of it was adverse to the title of Solomon Town, and it was of a nature to give notice that Carleton claimed title to that land. But the possession before that time was of a more ambiguous char- acter. Eb enezer Carleton. to whom the convevance was made in 1815.J 3iade n o entry or use of the lot up tn 1821, e xcept bv I pyi^S ^'^^bpr upon \f or placing farming utensils there . Those acts by one having a deed, if nothing further was shown, might be held to be a sufficient entry, and possession to operate as a disseizin of Solomon Town. But it ap- peared that s o far as the laying of lumber on the lot was concer ned, t his was no more than Carleton, and divers other persons, had bee n i n the habit of doino- hefor ^, and thf|<- nfhpr<; rnntiTinff] to do the sam e afterwards. T hose acts, prior to 1815, were do ne by him, and otli ers. without claim of title, and of course in subservience to. thetitleofTTie true owner. IT not acknowledged trespasses, they must have been under a license from Solomon Town. The same acts continued afte r x/ . a _ deed of other lands, by a person having good title to thn-^e lands c ould not operate as any notice to the owner of this tract, that a deed had been ma de covering his land also , and that there was an occupation under that deed, or under any claim of right to occupy adversely to him. The additional act of leaving farming tools on the lands does not seem to change the character of the possession. It was not, therefore, until 1821, when the building was removed o n t o the land, that any entry was made upon it by Carleton, from which Solomon Town, with knowledge of the entry, should have understoo d t hat CarTeton made any claim to the ownersnip of the lot : and until that time, therefore, there was nothing from which an ouster can be inferred, and no possession by him that can be deemed adverse, except €h. 1) POSSESSORY TITLES 89 at the election of the owner. Magoun v. Lapham, 21 Pick. (Mass.) 140; Thomas v. Patten, 13 Me. 336. Judgment for the plaintiff.^^ RALPH V. BAYLEY. (Supreme Court of Vermont, 1839. 11 Vt. 521.) Tr espass for breaking and entering plaintiff's clos e, being lot No. 62, in the first division of lands in Warren, and cutting timber thereon. Plea, not guilty, with notice of special matter. Issue to the country. Upon the trial in the county court, the plaintifi^ gave in evidence a d eed of the lot in question from Smith, Booth & Ufford to the plain- tiff, dated June 10th, 1836, and recorded in September, 1836. The plaintiff also introduced testimony tending to prove that in July, 1837, he cor nmenced clearing ten acres of said lot : that in the summer of that year he ch opped down the trees growin p; ' on about three acres of the land, and that defendant, i n January, 1838. entered upon the l ot a rid cut down and carried away a spruce tre e. The d efend ai^t. ^ on his part, gave in evidence a deed of the lot in q uestion, together with two other l ots of land lying in Warren, from o ne Daniel Spencer to Araunah Spear, dated July 18th, 1836, and r e- c orded in August, 1836, and introduced testimony tending to prov e that {^ppar. immediately after the recording of his deed and in the same month, comme nced choj )ping on__said_lot, and c ut down t he timber gro wing on about one acre of land : that in August or September, 1837, he caused the acre last mentioned to be cleared, and that the de- fendant entered upon the lot, by the direction of Spear, and cut the spruce tree before mentioned. The p laintiff then introduced testimony tending to prove that th e la nd cleared by Spear was not a part of lot No. 62 . It was conceded that the tree cut by the defendant, was not upon tliat portion of the lot enclosed by, or in the actual possession of Spear. The county court instructed the jury, that, if the plaintiff held a deed of lot No. 62, made an entry upon, and took possession of the lot, in the manner attempted to be proved, and the defendant entered thereon and cut the tree in the manner complained of, the plaintiff Aynnid be ent itled to recover against the def endant^ if he y^as a mere strang er, ai fd did not act by the direction or consent of Spear^ altho ugh , in fa ct. Spear made the first entry on the lot. 3 2 Kentucky Coal & Timber Development Co. v. Kentucky Union Co. (D. C.) 214 Fed. 590 (1914), ace. 5ee Hornblower v. Banton, 103 Me. 375, 69 Atl. 568, 125 Am. St. Rep. 30<^ (1907). 90 ORIGINAL TITLES (Part 1 The jury returned their ve rdict for the p laintiff. The defendant excepted to the charge of the court. Other questions were presented in the bill of exceptions, but, as they were not decided by this court, they are here omitted. The opinion of the court was delivered by Bennett, J. We think there was error in the charge of the court, as applied to this case. The case shows that Araunah Spear received a deed of the lot in question from Daniel Spencer, in July, 1836, and the deed was put on record in August following, and that the said Araunah immediately entered into possession, claiming title to the whole lot under his deed, and commenced a clearing and chopped over about one acre, and that, in August or September, 1837, he caused the clearing of this acre to be completed. It appears, also, that evide nce w as given to the jury tending to prove the defendant's acts tn h ave been i-.n np iniHer Sppar The effect of this evidence is to extend the possession of Spear, by CO nist ruction, to the whole lot, as described in his deed. The charge of the court assumes, that if the jury do not find that the defendant act- ed under Spear, the plaintiff is entitled to recover, though they should find Spear's possession prior to any possession of the plaintiff, it being an admitted point that the chopping of the defendant was not on that portion of the lot cleared by Spear. The plaintiff is a stranger as to the title, and his possession to a ny pa rt of the lot is subsequent to the possession of Spear, an d it does no t appear that the alleged trespass of the defendant was co mmitted upon any part of the lot in the actual possession of the plamtitt. Spear hav- ing had the hrst actual possession of a part, and constructive possession of the whole lot, there can be no subsequent conflicting possession ex- tended by construction beyond the limits of the actual adverse posses- sion. Crowell V. Beebe, 10 Vt. 33, 33 Am. Dec. 172; Barr v. Gratz, 4 Wheat. 213, 4 L. Ed. 553. I t is, then, clear that the plaintiffs cou ld not maintain this action a gamst Spear, and can he against a stranger .^ .We thmk j iot. The doctrine is well settled, that, in ejectment, the defendant may set up, as a defense, an outstanding title still subsisting in a stranger, though he in no way connects himself with such title. In the present case, as between the plaintiff' and Spe ar, the latter has^fhe better title, tha^is, the first av ailable possession of that ^art of the Idf'wiiere the trespass was committed, and all ac^jof the plaintiff there~wo HId be a trespass agamst Spear, If the"" plaintiff is permitted to recover against "a' slran- ger, for tlie'trespass, it can be no bar to a second recovery, by Spear for the same trespass, and we see no good reason why a stranger, when sued by the plaintiff, may not set up a prior possession in Spear. It, in effect, is the same principle that permits a defendant in ejectment to set up an outstanding title in a third person. There is no occasion for Ch. 1) POSSESSORY TITLES 91 deciding any other question, reserved by the bill of exceptions, as the judgment below must, on this point, be reversed . A new trial is, there- fore, granted.^ ^ SECTION 6.— DISABILITIES DOE V. JESSON. (Court of King's Bench, 1805. 6 East, 80.) This was an ejectment for a house and a small parcel of land, which was tried betore Rooke, J., at the last assizes at Northampton; and the principal question was, whether the action were brougnt in time withm the 2d cla use_of_exceptions in the statute of limitations, 21 Jac^ I, c. 16. The person last seised of the premises, from whom the les- sors of the plaintiff claimed, was one Thomas Jesson, on whose death in the year 1777, David, his elder brother, took possession of them, and transmitted the possession to the defendant his grandson. Thomas Jesson left a son John and a daughter Frances him surviving. John was baptized in 1767, and after the death of his father, being then about 10 years of age, was put out apprentice to the sea service by the parish, and was seen by a witness- on his return from his first voyage 33 "The complaint Is made that instruction 8 was refused plaintiffs. It reads as follows: 'If the jury l»elieve from the evidence thsit S. I. Robinson under his patent entered upon the land embraced therein and took possession of the same by himself or his tenant, then he was in possession of the whole of said tract of hmd not actually in the possession of some otber party; and if you believe that sucli possession has continued for more than ten years by the said Robinson or his tenants, then his possession under his patent gave him a perfect title to the land actually in his possession, notwithstanding you may believe some part of his survey may have been overlapped by an older patent.' This would suggest to the jury the question of an interlock of the defendant's older patent with plaintiffs' younger patent, and, if there was, then plaintiffs would have the benefit of possession extending over on the defendant's land. But there could not be such interlock when the plaintiffs' patent called for defendant's older patent, and to run with its lines. Robin- sou V. Sheets* 63 W. Va. .394, 61 S. E. 347 (190S). This tended to give Robin- son the benefit of possession over his bounds. But there is other objection to the instruction. Suppose an interlock between senior and junior grants. This instruction would say that a possession anywhere on the land of the junior grant would take in land of the interlock, if possession under the senior is not within the interlock. The junior, though in possession within his bounds, cannot be accounted in possession of the interlock, unless he has actual physical possession in it. Constructive actual possession arising from possession elsewhere will not do. Wilson v. Braden, 48 W. Va. 193, 36 S. E. 367 (1900). I see that it was discussed and disapproved in former de- cision. Robinson v. Lowe, 50 W. Va. 79, 40 S. E. 454 (1901)." Brannon, J., in Robinson v. Lovs-e, 66 W. Va. 665, 66 S. E. 1001 (1910). As to tacking successive constructive adverse possessions, see Simpson v. Downing 23 Wend. (N. Y.) 316 (TS40).~ ' ' "~ " "^ 92 ORIGINAL TITLES (Part 1 about a year after the father's death ; soon after which he went to sea again, and had not been heard of since, and was beheved to be dead. Frances the daughter, one of the lessors of the plaintiff, was baptized on the 21st of May, 1771, and afterwards married George the other lessor. It was contended at the trial by the defendant's counsel that the ejectment was out of time; for it was uncertain when John, the son of Thomas the ancestor last seised, died, and that the 20 years given by the statute began to run immediately on the death of Thomas in 1777, and consequently expired in 1797; or that if the statute favoured Frances the daughter till 10 years after the disability of her infancy was removed, at any rate as she was of full age in 1792, she ought to have brought her ejectment in 1802, and consequently this ejectment brought in 1804 was too late. On the other hand, it was contended by the plaintiff's counsel that supposing John to have died abroad, the presumption of his death could not arise till seven years after he v/as last seen in England previous to his going to sea, which would not be till 1785 or 1786, till when the right of entry of the lessor Frances did not accrue; and that she had 20 years in which to bring her ejectment after that time; the statute having never begun to run by reason of the continuing di^'ability, and consequently that this action was well brought. The learned Judge left it to the jury to say when and where John died ; and observed, that it was fair to presume he had not died in England, as none of his family ever" heard of his death. And as to the time, that it was incumbent on the jury to find the fact as well as they could under the doubt and difficulty of the case; that at any time be- yond the first seven years they might fairly presume him dead, but the not hearing of him within that period was hardly sufficient to afford such a presumption. The jury found a verdict for the plaintiff, and that John died als'road about the years 1785, 1786, or 1787, but not before. In the last term it was moved to set aside the verdict and grant a new trial, on the ground that Frances, the daughter, was at most only entitled to 10 years for bringing her ejectment after she came of age, which was in 1792, even if she were not bound to have made her entry within 10 years from the death of her brother, from whom she claimed. Lord Ellenborough, C. J. The time allov/ed by the statute for making an entry might be indefinitely extended if the construction contended for by the plaintiff \vere to be admitted. There is no cal- culating how^far it might be carried l)y parents and children dying under age, or continuing under other disabilities in succession. The brother, John, through whom the lessor of the plaintiff, Frances, claimc, being under the disability of nonage at the time of his father's death, when his title first accrued, and dying under that disability, it appears to me that the proviso in the second clause of tlie statute Ch. 1) POSSESSORY TITLES 93- (where resort is to be had to it to extend the period for making an entry beyond the 20 years,) required the lessor trances, as heir to her brother, to make her entry within 10 years after his death : and that not leaving done so, this ejectment was brought too late. The_word "de ath" in t hat clause must mean and refer to the death of the person to w hom the right first accrued^ and_whose heir the claimantjsj and the statute meant that the heir of every person, to which person a right of entry had accrued during any of the disabilities there stated, should have 10 years from the death of his ancestor, to whom the right first accrued during the period of disability, and who died under such a dis- ability, (notwithstanding the 20 years from the first accruing of the title to the ancestor should have before expired.) As to the period when the brother might be supposed to have died, according to the statute 19 Car. II, c. 6. with respect to leases dependent on lives, and also according to the statute of bigamy, (1 Jac. I, c. 11.) the presump- tion of the duration of life, with respect to persons of whom no ac- count can be given, ends at the expiration of seven years from the time when they were last known to be living. Therefore in the absence of all other evidence to shew that he was living at a later period there was fair ground for the jury to presume that he was dead at the end of seven years from the time when he went to sea on his second voy- age, which seems to be the last account of him. That was about the year 1778, which would carry his death to about 1785. Lawrencij, J. Upon the death of the father Thomas Jesson, in 1777, the right descended to John, the son, tnen under age, who died under that disability. The^ lessor Frances„is,..the_heir_oi_Jpl^^ the statute gives to the party to whom a right of entry accrues, and who is„mider a disability, at the time, 10 years after: the disability removedj notwithstanding the 20 years should have elapsed after his title first accrued; and to his heir the statute gives 10 years after thejdeath..oL such party dying und er the disability. Her e more than 10 years had elaps ed after the de ath of the brothe r before this ejectment wa s bro ught It appears probable enougiritpon looking into the case of Stawell V. Lord Zouch (Plowd. 355), that the word death was introduc- ed into the statute of James in order to obviate the difficulty which had arisen in that case upon the construction of the statute of fines, 4 H. VII, c. 24, for want of that word. Grose and Ls Blanc, Justices, assenting. Rule absolute.^* 3 4 The construction of the American statutes of limitation generally has been the same. See '2 C. J. 117 et seq. All 94 ' ORIGINAL TITLES (P^lt 1 CHAPTER II PRESCRIPTION WALLACE V. FLETCHER. (Supreme Court of New Hampshire, 1855, 30 N. H, 434.) This is an action on the case, for diverting the water from the plain- tiff's mill, in New Boston, from May 1, 1848, to the date of the writ, April 26, 1850. The plaintiff's evidence tended to show that one L. Lincoln, under whom he claimed, purchased the land on the south side of the Piscata- quog river, in New Boston, bounded by the river, and in 1804 or 1805 erected thereon the gristmill now owned^ by the plaintiff, and extended his dam across the ri^ver to the northJ)aiik. J. McLaughlin then owned the land upon the north side of the rfver; and there was no evidence tending to show that any consent was asked of McLaughlin, or given by him, for the building of the dam, or that he, or any person in his behalf, or in his right, made any objection to its being built. McLaughlin died in the spring of 1807, and in September of that year, one John Kelso applied to Abner Dodge, who had become the owner and occupant of tte gristmill and its appurtenances, through two or three intermediate conveyances from Lincoln, and asked him if he had any objection that said Kejso should move his fulling mill, then standing about half a mile above upon the river, a nd s et it at the north end of his mill dam, if he would give Dodge an adequate compensa- tion. Dodge told him that he had no objection, and Kelso moved his mill, but the compensation was not fixed, though Dodge objected to his cutting away the dam till it was done. Kelso cut away a part of the dam and constructed a flume, and put his fulling mill in operation, and continued to occupy the mill till his death, in 1822. It did not appear that any other agreement was made by Kelso with the owners of the gristmill, or that any compensation was paid by him, or any rate of compensation agreed on. It appeared that the owners of the gristmill repaired and rebuilt the entire dam, when there was occasion, and that Kelso and his heirs, so . long as they retained'the property, did nothing and contributed nothing towards the repairs of the dam, except to their own flume, and a few feet of planking between the flume and the north bank of the river, except that on one occasion when the dam was destroyed by a freshet, said Kelso entertained at his house some of the neighbors who volun- teered to assist in rebuilding it. It appeared that at one time said Kelso, being asked why he did not_____ assist in repairing the dam, said he expected to have to pay rent for jt^ Ch. 2) PRESCRIPTION 95 In 1816, Kelso obtained of John McLaughlin, Jr., and a sister of his, two of the five children and heirs of J. McLaughlin before mentioned, a quitclaim deed of the land on the north side of the river, on which the fulling mill stood, and his administrator, in 1828, obtained of an- other daughter of said J. McLaughlin, Sen., a similar deed, and there was evidence tending to show that two others of said J. McLaughlin, Senior's, sons enlisted in the army in the War of 1812, and have never since been heard from. It did not appear that said Kelso made any different claims, or made any change of any kind in his relations to the owners of the gristmill, after he obtained his deed of J. McLaughlin, Jr., so long as he lived. The evidence tended to prove that during the life of said Kelso, and ever afterwards, the ow ners of the gristmill claimed that they were en- titled to the exclusive use and control of the entire water power cre- ated by their mill dam, on the ground that they acquired such right by first building a dam there and setting up a mill, and that it was consid- ered in the neighborhood a disputable matter whether the owners of the north side of the river had any privilege there, but it did not appear that^said Kelso ever disputed the claim in this respect made by the owners of the gristmill; on the contrary, the evidence tended to prove that during said Kelso's life, and until the sale of the interest of his heirs, in 1826, the owners of the gristmill were in the habit of calling on the occupants of the fulling mill, either personally or by rapping on the side of the gristmill, to shut down their gates, and they were ac- cordingly closed when the river was low, and the water was needed to carry the gristmill, and that in such dry times the gates of the fulling mill were sometimes closed by the occupants, of their own accord, and sometimes by the o wners of the gristmill, and that said Kelso, at such times, sometimes fulled his cloth in the night, when the gristmill was not in operation, and sometimes took his cloth to be fulled at mills in other towns. The evidence also tended to prove that the owners of the gristmill also claimed that the gristmill, as such, had a prior right to the use of the water, when necessary, before any other mill or machinery on the dam, and it did not appear that this right was denied or disputed by Kelso, or his heirs or representatives. It appeared that at Kelso's decease his children were minors, and they so continued, except the eldest, for a short time, until their inter- est in the fulling mill and lot was sold by the eldest son, and by the guardian of the others, by license of the court of probate. The fulling mill was leased by the administrator of Kelso's estate for two years, fill 18Z4, and by the guardian of the children for two years more, to 1826, in March or April. These leases conveyed the fulling mill and water privilege for the clothing business, "except when there was not sufficient water for the gristmill," and it appeared that during those leases, the owners of the gristmill, when the water was 96 ORIGINAL TITLES (Part 1 low, drew all the water, and the gates of the fulling mill were shut down at such times. A witness for the plaintiff testified tliat he was a referee with two others, now deceased, to settle a claim made by A. Dodge against the estate of Kelso, for compensation for the use of the water by the full- ing mill. The parties stated to them that the owners of the gristmill had built the dam, and had done all that had been done to keep it in repair; that Kelso came in under an agreement to pay a reasonable compensation for the use of the water, though it had never been agreed what that compensation should be, and that Kelso had used the water for a number of years under that agreement; that the most of the year there was water enough for both, and when there was not water enough for both, the gristmill had the preference, and when the water was low, was to have all the water. The question submitted to them was, what the estate of Kelso should pay towards the expense of supporting the dam, or what should be paid for the use of the water, when there was water enough for both mills. He could not say what was said by Dodge or the administrator, but what was said by either was assented to by tlie other. There was no dispute between thern. The award was produced and verified by him. It recited a submission by bonds, and among other things, had an award of "forty dollars to be paid to Dodge for the use of the water privilege," and was dated March 26, 1823. At the foot of it was written, "We agree to the above award," which was signed by Dodge and the administrator. To all this evidence of the acts and admissions of the administrator of Kelso's estate, and of the guardian of his minor children, it was ob- jected that neither an administrator nor guardian has any power, di- rectly or otherwise, to create an easement on the minors' estate, or by his acts or admissions to furnish or make any evidence of such an ease- ment, to affect any other persons than themselves, and the whole evi- dence was therefore inadmissible against the grantees of the minors' estate ; but the evidence was admitted, subject to exception. It was objected that tlie award was not evidence of the submission by bond, without the production of the bonds, or an account of their absence, but it was admitted on the proof of the agreement of the par- ties, written upon it, subject to the exception as to its admission and effect. It appeared by deeds produced by the defendants, that one of the heirs of Kelso, then of age, and the guardian of the minor children, under a license from the court of probate, sold and conveyed the full- ing mill to D. Smith, on the 5th of August, 1826. Smith soon after made a contract with the defendant, Fletcher, and gave him a bond that he would convey the property, upon the payment of an agreed price, within a certain time ; that in the meantime Fletcher should occupy the premises, paying' a certain rent, and that when he paid $200 toward the purchase, the rent should cease, and after that he was to pay only the interest on the balance of the purchase money. Ch. 2) PRESCRIPTION 97 Fletcher occupied, paying rent for two years,, till 1828, and then paid them $200, and afterwards occupied^ as_^ owner, paying interest only. During the time from August, 1826, to the fall of 1828, while Fletcher occupied as tenant, Smith paid to the owner of the gristmill half a dol- lar a month for the use of the water. He testified he paid it because it was unsettled and considered disputable, whether there was any priv- ilege on the north side. He said he was offered a higher price, if he would warrant the water, but he considered it disputable, and declined to do it. In April, 1830, he conveyed to one Austin, under whom the defendants claim. While he owned the fulling mill, and paid rent, the owners of the gristmill claimed they had the first right to the water, and it was generally understood they had such right. After. the payment of the $200 by Fletcher to Smith, the right of the plaintiff to a preference in the use of the water, or to any rent or com- pensation for the use of it, was denied by Fletcher, and he ceased to shut his gates when the owners of the gristmill requested it, but it did not appear, howearly this resistance to the plaintiff's claim was first made. ""~ The court instructed the jury that if the owner of the mill privilege, under a claim of right, used and exercised the rights he claimed, without interruption or opposition, for a period of twenty years, this gave him a perp etual right, and that it was not material whether his claim of right was^welFf ounded in law, if it was so exercised and submitted to. That if a party had once acquired a right by such twenty years enjoy- ment, he would not lose it by any interruption afterwards, unless that interruption continued for twenty years, and the burden was on the party who asserted such interruption, to prove it. That if the jury should find that the plaintifi', under a claim of right, had used the wa- ter to the exclusion of the fulling mill, in the dry season, when there was only enough for the grist mill, or had permitted the owners of the fulling mill to draw water from the dam for the use of that mill, only on payment of a reasonable compensation, for the term of twenty years, without interruption, they should find their verdict in his favor, not- withstanding they should find that during a part of that time the title to the fulling mill was, by descent, in the hands of minors. The jury found a verdict for the plaintiff,- which the defendants moved to set aside, by reason of the said rulings and instructions of the court. Bell, J. At common law, a title acquired by possession during the period and in the manner prescribed by the law, was called a title by pre scription. By the lapse of the requisite time, what was at first a bare possession, becomes a right of property, perfect and indefeasible. Gale & What, on Easements, 62. The doctrine of the common law, as cited by Coke, (Coke's Litt. 113, b,) from Bracton, (Lib. 2, fol. 51,) substantially agrees with the civil law. "Both to customs and prescriptions, these two things are in- Aig.Peop. — 7 98 ORIGINAL TITLES (Part 1 ■^1^ cidents inseparable, viz. : possession or usage and time. Possession must have three quahties, it must be long, continual, peaceable ; longa, continua, et pacifica, for it is said, transferuntur dominia sine tituo et traditione, per usucapionem ; sed, per longam, continuam, et pacificam possessionem. Longa, i. e., per spatium temporis per legam definitam ; continua, dico, ita quod non sit legitime interrupta; pacificam, dico, quia si contentiosa fuerit, idem erit, quod prius, si contentio fuerit justa." "Longus usus, nee per vim, nee clam, nee precario," &c. G. & W. 122. By the civil law, the rule was "ut prescriptione longi temporis, id est decem annorum inler presentes, et viginti inter absentes, servitutes adquirantur." 1 Hei. ad Pan. part 2, § 158; 2 lb. part 6, §§ 122- 125; Domat's Civil Law, § 2190. But by the common law, the time was not fixed to a certain number of years, but as it was expressed by Littleton, (Ten. § 170) it was "de temps dont memorie des homes ne curt a le contrarie," or as Coke (Coke's Litt. 115, a) quotes from Bracton, "Docere oportet longum tempus et longum usum ilium; viz. qui excedit memoriam hominum, tale enim tempus sufficit pro jure." In 1275, by statute 3 Ed. I, writs of right were limited to rights actually enjoyed after the first year of Richard I, (1189,) and by anal- ogy to the period fixed by tliat statute, it was held that time of legal memory reached to that date, and not beyond it. Being a fixed date, it was of course continually receding, until it became absurd, since it was practically impossible to prove any fact of so ancient date. The courts might have held, when difficulties were found to result from this arbitrary rule, that the ancient law, which fixed the period beyond which actual memory did not reach, was still in force, or they might have availed tliemselves of the passage of the statute of 32 Henry VIII, which reduced the limitation of writs of right to three score years, to decide by analogy to that statute, as was done in tlie time of Edward I, that the time of legal memory was reduced sixty years. It appears by Littleton, sec. 170, that in his time it was seri- ously contended that the time of legal memory was not changed by the statute of Edward I. And Rolle, C. J., was of that opinion, though he admits the practice was otherwise. 2 RoUe's Ab. Prescription, P. And many respectable authorities maintained, after the statute of 32 Henry VIII, that time oMegal memory was sixty years, as Rolle, C. J., Sergeant Williams, 2 Wms. Saund. 175, n. a.. Lord Mansfield, 2 Ev. Poth, 136, Blackstone, J., 2 Com. 31, Abbott, C. J., 5 B. & A. 215, and Dallas, C. J., C. B. Moore, 558. r From causes which are not now apparent, neither of these views J prevailed, and the consequence was that no title to any easement could I be supported upon proof of occupation and enjoyment, however long V^ontinued, if its origin could be shown. The natural and, indeed, necessary consequence of a rule so ab- surd, and one necessarily productive of so unjust consequences, was that tlie courts were driven to evade it by refinements and fictions. Ch. 2) PRESCRIPTION 99 It seems by the case of Guernsey v. Rodbridge, Gil. Eq. Cases 4, s. c. 2 Vern. 390, under the name of Finch v. Resbridger, in 1707, that the court of chancery first adopted the principle of presuming the former existence and loss of a deed, where a long and uninterrupted posses- sion of an easement was shown. I t was not until 1761 that this prin- c iple was adopted in the courts of common law in England. Some of the judges there were, at times, inclined to give to this presumption the effect of a presumptio juris et de jure, a legal presumption binding on both courts and juries, as a rule from which neither had a right to depart, a presumption of a right constituting a perfect title or bar, as the case might be. Wilmot, J., in Lewis v. Price and Dougal v. Wilson, Saund. 175, a; Eyre, C. J., in Hed v. Holcroft, 1 B. & P. 400; Lord Ellenborough, in Balston v. Benstead, 1 Camp. 163, and in Bealey v. Shaw, 6 East, 214; and Lord Mansfield in Darwin v. Upton, 2 Wms. Saund. 175, a, and Mayor v. Horner, Cowp. 102. B ut tlie current ^f__ English decisions has gone no further_ than to hol d that lon gjcontinued and uninterrupted possession is evi dence fro m w hich a jury mav_ p rp'^nmp a (] ppc\ Keymer v. Summers, B. N. P, 74; Campbell v. Willson, 3 East, 294; Gray v. Bond, 5 Moore, 327, s. c. 2 B. & B. 627; Cross v. Lewis, 2 B. & C. 686; Darwin v. Up- ton, 2 Wms, Saund. 175, a; Livitt v. Wilson, 3 Bing. 115. The instruction given to the jury that such proof is competent evi- dence, from which they may infer the existence and loss of a deed, is understood to be accompanied by a recommendation so to find the fact, whatever may be their individual impression of its truth, and it seems that verdicts rendered in conflict with such recommendations would be set aside. Bealey v. Shaw, 6 East, 214, per Ld. Ellenborough, C. J.; Bright v. Walker, 1 Cr., M. & R. 217, per Parke, B.; Jenkins V. Harvey, 1 Cr., M. & R. 894, per Alderson, B.^ Many cases, in this country, have followed in the tracks of the English decisions, though it is apparent that, in a newly settled country like ours, where to a great extent every thing is of recent date, and the history of our towns, of our roads, farms, mills and dwellings are known, a rule like that adopted in England is in no respect adapted to our situation. On other subjects, the common law has been every where modified, to adapt it to the wants of our community. Tjie Eng- lish^decis ions on thi s_subjert ha ve been but mr)d es_of_ey ading th e^ffect of^^ear jy decisions of their court s ^which have been found inco nsistent with the ^)rin ciples of justic ei and it is clearly as much within the le- gitimate sphere and customary action of the courts to disregard or to overrule such decisions, as it can be to evade them by nice presump- tions, either of fact or of law. Itwas the wise course, prescrib ed by p rinciple as we ll as by public convenience, to o verrule the a bsurd d e- ci sions which sanctioned a fixed_2oi rit in the e a rly history of England , 1 See, also, Cockburn, C. J., in Angus & Co. v. Dalton, 3 Q. B. D. 85, 103- 113 (1S77); Thesiger, L. J., in same case on appeal, 4 Q. B. D. 1G2, 170-175 (1S7S). 100 OEIGINAL TITLES (Part 1 as the Hmlt ^of legal m gmory, and at the same time to restore the prin- ciple upon which tliat decision appears to be made, that in cases where the Legislature have not fixed a precise rule of limitation, rightS-shall beacquired and barred by a pre scription- of such length of tirn ejis has been fixed_by_the JLegislature as the proper limitation _Jn__analogous cases^_Ricard v. \ViIIiams, 7 Wheat. 110, 5 L. EOOSTlSunt vTSunt, 3 Mete. (Mass.) 185, Z7 Am. Dec. 130. • I \X was to adopt here as the law, the strong view of Wilmot, J., in Lewis V. Price, that if a possession of twenty years is sufficient to give 1 a man title to a house, there can be no reason why it should not be [ sufficient to give title to any easement belonging to the house. Upon these views, we take the law to be here settled, as is laid down by Prof. Greenleaf, 2 Greenl. Ev. § 539: "By the weight of authority, as well as the preponderance of opinion, it may be stated as the_gen- ieral rule oL A merican law , tliat an adverse, exclusive and uninterrupted enjoyment for twenty years of an incorporeal hereditament affords a conclusive presumption of_ a ^ran_tj or a right, as the case may be, which is to be applied as a presumptio juris et de jure, wherever by possibility a right can be acquired in any manner known to the law. In order, however, that the enjoyment of an easement in another's land may be conclusive of the right, it must have been adverse , that is, un- der a claim of title, with the knowledge and acquiescence of the owner of tlie land, and uninterrupted ; and the" burden of proving this is on |;he party claiming the easement." In support of this position, he cites Tyler v. Wilkinson, 4 Mason, 402, Fed_Cas. No. 14,31 2 ; Ingraham v. Hutchinson, 2 Conn. 584; Strickler v. Todd, 10 Serg. & R, (Pa.) 63, 69, 13 Am. Dec. 649; Sherwood v. Burr, 4 Day (Conn.) 244, 4 Am. Dec. 211; Tinkham v. Arnold, 3 Greenl. (Me.) 120; Hill v. Crosby, 2 Pick. (Mass.) 466, 13 Am. Dec. 448; Ricard v. Williams, 7 Wheat. 109, 5 L. Ed. 398; Coolidge v. Learned, 8 Pick. (Mass.) 504; Sargent V. Ballard, 9 Pick. (Mass.) 251; Melvin v. Whiting, 10 Pick. (Mass.) 295, 20 Am. Dec. 524; Bolivar M. Co. v. Neponset M. Co., 16 Pick. 241 ; Morgan v. Banta, 1 Bibb (Ky.) 582 ; Simpson v. Hawkins, 1 Dana (Ky.) 306; Shaw v. Crawford, 1 Johns. (N. Y.) 236 ; John v. Stevens, 3 Vt. 316. To which may be added, Stiles v. Hooker, 7 Cow. (N. Y.) 266; 1 Kent, Com. 444; 2 Hill. Ab. 60, 61; Shumway v. Simonds, 1 Vt. 53 ; Baldwin v. Calkins, 10 Wend. (N. Y.) 166; and Miller v. Garlock, 8 Barb. (N. Y.) 153, where the principles applica- ble in cases of this kind are very clearly stated and condensed ; Hoyt V. Carter, 16 Barb. (N. Y.) 219; Valentine v. Boston, 22 Pick. 80, 33 Am. Dec. 711; Atkins v. Bordnian, 20 Pick. (Mass.) 302; Little- field V. Maxwell, 31 Me. (1 Red.) 140, 50 Am. Dec. 653. In this State, in Bullen v. Runnels, 2 N. H. 255, 9- Am. Dec. 55, it was said by Woodbury, J., and held by the court, that the. most con- clusive evidence as to tlie interests of parties in water-courses, was the occupation of the parties during twenty years, because that is the common and peculiar mode of acquiring rights to the use of water, Ch. 2) PEESCEIPTION 101 and because so long an occupation of a stream not navigable raises a presumption that the grants, now lost by time and accident, have passed between tlie parties, in conformity to the occupation. In Oilman v. Tilton, 5 N. H. 231, Richardson, C. J., says: "Some have held that a term of twenty years of exclusive, uninterrupted en- joyment of the use of water, in a particular manner, is a conclusive presumption of right, presumptio juris et de jure," It was not the point directly before the court, and he says no more; but we think that the remark shows that the opinion met his approval. The point decided was, t hat an_ a dverse e n jovment of water f or any period l ess than twenty year s is not a lone^sufficien t to warr anLlhe presumpjion of a grant . In the case of Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156, it was held that the ad verse , e xclusive use of water flowing through an aqueduct, by the owners and occupants of a house, for the term of twenty years, furnishes presu mptive evid ence of a grant from the owner of the land through which it is brought, to have it flow in the manner it has been accustomed to do for that period. And the learned chief justice who delivered the opinion of the court, remarks of the case: "During all that time, (more than twenty years,) the right of the plaintiffs, and those under whom they hold their lands, thus to take and use tlie water, has, so far as appears, not been contested by any one; nor is there any express evidence of any permission asked within the time or of any sum paid for the use, or any acknowledg- ment that the use was at the pleasure of those through whose land the aqueduct passed. These facts, if they stood alone, would furnish abundant evidence of title in the plaintiffs to take and use the water, as they and others, whose estates they hold, had been accustomed to do for such period." He subsequently says : "The plaintiffs' claim does not rest upon a prescription. There is no pretense that the use has extended beyond legal memory. T he plaintiffs must^ ;elx-U£0" th e presumption of a grant, arising froma n undisturbed enjoymen t o f the use of it, flowing^ through the land^wned by the defenda ntjor so J ong a per iod; which may be in the nature of a prescription, ex- ce pt so far as time is concerned .'^ ~ It is apparent that the learned judge referred to a prescription such as is recog nized by the ancient books of thejaw^ founded upon such a length of possession as the memory of man does not reach to, go- ing back to the first year of Richard I, three hundred years before the discovery of our co ntinent. Such a prescription, of course, could not exist in this case, nor in any case arising in this country. And any attempt to reason from the nature of such a prescription, so far as it related to time, might be properly rejected. The analogy of the presumption of title, or of grant, as the case may be, to a prescription, except so far as time is concerned, is distinctly admitted. And there seems to us both convenience and propriety in applying the term pre- scription in cases of this kind, since the prescription of the ancient r; 102 OBIGINAL TITLES (Part 1 books can never exist here, and even as to time, the limit recognized here agrees with that of tlie civil law. Hein. ad Pand., before cited. However this may be, this case furnishes strong evidence of the con- currence of tliis eminent judge in the general current of decisions in this country, as stated by Prof. Greenleaf. Upon this view of the law, we think tlie instruction given to tlie jury, that if an owner of a mill privilege, under a claim of right, used \ ■ and exercised the rights he claimed, without opposition or interrup- tion, for a period of twenty years, this gave him a perpetual right, was, upon the facts presented by the case, correct, unless the court erred in that part of the charge where they say that the exercise of the rights claimed for twenty years, without interruption, entitled the plaintiff to ! a verdict, not withstand ing they shouldLfindjtha^^Airing^j,^aTt^^ time the title to the property affe ct ed was, by descent, in the jiarids^ of minors. This question, in a different form, came before the court in the case of Watkins v. Peck, and it was there said : "We are of opinion that no grant can be presumed from an adverse use of an easement in the land of another, for the term of twenty years, where the owner of_ . the land w^as, at the expiration of the twenty years, and long before, \ ; incapable of making any grant, whether the disability arose from in- sV^) fancy or insanity. Perhaps a disability intervening during the lapse of tlie term, but not extending to the termination of the twenty years, M^ might not be sufficient to rebut the presumption, but it would be absurd to presume a grant, where it was clear that no such grant could have existed." This case is relied on by the defendants as decisive of the )resent case, but we are unable so to regard it. [n the present case, the period of twenty years, necessary to give a I' title by presumption of a grant or title, commenced in 1807, and ended in 1828, after which time the right was denied, and its exercise in- terfered with. From 1822 to 1826, tlie title of the defendant's estate, in which the easement was claimed, was in the minor children of Kelso, the former owner, then deceased, and their interest was sold in 1826, by their guardian, by license from the court of probate. The disability of the owners did not extend to the end of the twenty years, but ceased two years previously. That case was not decided in Watkins v. Peck, but was in express terms left undecided. The case then before the court did not require the decision of any. question on the subject, since it was he ld that the then def endan ts tak- iii g the wate r^by contrac t_jrom the premises of a third person, could justjfy^jLindeOhaL_person3l-thg y couTd~not~standnonr'"tlfeir own oc- cupation. _ But it is not necessary here to question the ruling there made, in tlie case then before the court. But we think that, [n Ae present case, where it appeared that the parties interested were of full age at the "time when the possession and bser commenced, and for fifteen years after; and also at the time when the full time of twenty years was completed, and for two years Ch. 2) PRESCRIPTION 103 before, and the title of the minors intervened for some three or four years between- those periods, th eir disabiHty would ii ot_p revent a title fr om bein g ^ acquired bv twenty yefir<^ p ossession . ^1.,-We have already stated our impression that by the law, as generally recognized in this country, the party claiming title under such posses- sion is not obliged to rely merely on a presumption__of_a_.graiit, but he may rest on a pre sumption of righ t, or of any grant, reservation or record, which may be necessary to establish his title; and it seems to us this may properly be regarded as a species of prescription, estab- lished here by a course of judicial decisions, by analogy to the stat- ute of limitations of real actions. Coolidge v. Learned, 8 Pick. (Mass.) 504; Melvin v. Whiting, 10 Pick. (Mass.) 295, 20 Am. Dec. 524. In cases where the party claiming title under such presumption, may find it necessary to rely upon the presumption of a deed, we think that long continued user is evidence of a lost or non-existing grant, from some person who might, at some time, have made a valid grant to some person capable of accepting it. It cannot prove more than this. User '^ cannot prove a grant by A. to B., on a given day, unless there be ""other circumstances, which confine the presumption to a particular time, and to those persons only. The evidence of such limitation forms no essential or natural part of the proof of user. Campbell v. Wilson, 3 East, 294 ; French v. Marstin, 24 N. H. 453, 57 Am. Dec. 294. /It strikes us that the legitimate and natural tendency of evidence of User may, in many cases, be rather to prove a deed existing before the /commencement of the user, than one executed during the time of the /use, or at its termination. Tinkham v. Arnold, 3 Greenl. (Me.) 122. j T jie earliest ac t of user proved, tends to prove j ^ght thenj gxisting, I u pon the principle that he who witnesses any en croachment upon his ri ghts, without objection or opposition, seems to~admit, in "some d e- . gre e, however slight, a right in the party who does it. Suchjight_evi- de nce gain s^or ce by co jitinuedrepetition, until a.^the_e nd of twe nty ye ars it be comes, unexplained, conclusive evidence of righ t. This species of prescription being established here upon the neces- sity existing among us, of some mode of determining the rights to easements, of a more rational character than the ancient rule of pre- scription, reaching back to the time of legal memory, and applicable to all cases, tlie analogy of the statute of limitations, by which tlie period of twenty years is adopted as the time of prescription, seems reasonable and proper to be followed likewise, as to the exceptions M^r^ prescribed by that statute. Those exceptions are of two kinds, the ] case of areve rsioner against whom the statute does not begin to run, ' and by parity of reason, the time of prescription does not begin to run until his interest becomes vested, so as to give him a right of action. The tenant for life or years may grant easements, or permit them to be acquired by user, and they will be valid against himself and those who hold his estate during its continuance, and perhaps not afterwards, where the reversioner had previously neither cause nor right to com- 104 ORIGINAL TITLE8 (Part 1 y plain. Daniel v. North, 11 East, 370; Bradburg v. Gimsell, 2 Wms. Saund. 175, d; Barker v. Richardson, 4 B. & A. 579; Ang. Adv. Enj. 46; 2 Greenl. Ev. § 545. /cTwnerswho ^ are under disab ilities when tlieir rigli ts_are-iinsL en- croached upon, and the right~o I_ actIon for such encroachm ent_jirst accrues , have by tlie statutes five years to bring their actions, after the disability is removed, though the period of twenty years may have long expired. j<'.oster,v._Mar shall, 22 N. H. 491. In such a case, we think there would be the strongest reason for applying to the priv- ileges of the house the same rule we apply to the house itself, and to allow to the disabled owner tlie rule tliat he may have five years to contest his liability, after his disability has ceased. ^ut_ under the stat- ute jt_has always been_ held_ihat_jite r the statute has on cg commenced to run^ no i ntervening disability will defeat the ordinary lim itation ati_sing frotii— twenty years___adxg l_se possessio n. Howell v. Zouch, Plowd. 353; Doe v. Jesson, 6 EastTSO ; Eager v. Commonwealth, 4 Mass. 182; Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Griswold v. Butler, 3 Conn. 227; McFarland v. Stone, 17 Vt. 165, 44 Am. Dec. 325; Mercer v. Selden, 1 How. 37, 11 L. Ed. 38. The same rule seems to us proper to be applied, in case of disabilities arising to the owners of real estate, after the user and enjoyment of an easement has been commenced under a claim of right, with the knowledge of the owner, and without question or opposition on his part. Such interveni iig^dis abilities should not defeat the presum ption o f title resulting from twenty years possession . Tyler v. Williamson, 4 Mason, 402, Fed. Cas. No. 14,312; 2 Kent's Com. 445; 2 Greenl. Ev. 545; Cross v. Lewis, 2 B. & C. 686; Best on Presumption, 89; Ang. Watercourses, 235. The p oint relative to the award is not in s isted upon, and jthe plain- tiff's answer to it seems sufficient. J udgment on the verdict." LAMB V. CROSLAND. (Court of Appeals of South Carolina, 1851. 4 Rich. Law, 536.) This was an actiorijm the case for obstructing a di tch. The lands of the parties^jvyere adjoining. The plaintiff's land, in 1817, belonged to her husband, one Alexander Lamb. The defendant's land, then, belonged to one Bartholomew Cosnahan. Near Lamb's house were some ponds, which, in wet seasons, were filled with wa- terjjind^rodu^ced sickness. Lamb asked and obtainedjpennissiqn froni- Cosnahan to cut a ditch through his land, for tlie purpose of draining, 2Mebane v. Patrick, 46 N. C. 23 (1S53); Tracy v. Atherton, 36 Vt. 503 (1864); Ballard v. Dommon, 156 Mass. 449, 31 N. E. 635 (1892); Scallon v. Manhattan Ry. Co., 1S5 N. Y. 359, 78 N. E. 284, 7 Ann. Cas. 168 (1906), ace. h^Q' \i I. J \ ^. Ch. 2) PRESCRIPTION 105 those po nds. The ditch communicated with an old ditch, called the meadow ditch, by which the water passed off into Crooked Creek. The land through which the ditch was cut by Lamb, was then woodland; it had since been cleared. Tliejditchjiad_been^kej)t g^^en a^^^ Lamb's land ever since, and worked on occasionally, when it suited the convenience of those who owned the land. The plaintiff was in possession of Lamb's land. Lamb died in 1836. No evidence of how the plaintiff" derived title was given ; but it was understood, from the course of the testimony, that it had been sold for partition, and she was the purchaser. B. Cqsnahan died in 1820, leaving a widov; and infant children, one of whom was not of age until 1841. After his death, the land remained in the posses'smn of his widow and the ad- ministrator, until 1833, when it was sold for partition, and purchased by one E. Cosnahan, who sold it to one Feagin in 1836. From him it passed to Green. About 1843, he sold to Dudley, and Dudley to the defendant. In_ 1847 (in January ,)_jn consequence of the lower part of the ditch not being kept sufficiently open, four acres of the Jt' defendant's landTon the^side of the ditch, were too wet to plough. He sent to the plaintiff, requested her to open it, but she did not do it. In March the defendant filled up the ditch with 'dirt and logs. Some negotiation took place, and the plaintiff opened the ditch, but as it turned out, not sufficiently, for in July there were very heavy rains, and the water ponded on the four acres, and injured the growing crop. The defenda nt again obstructed the ditch. ■ It remained so four days, w hen th e plaintiff's son removed the obstruction. But in these four days, the corn in the plaintiff's pond was destroyed. For this injury the action was^^qught, an^ the sole questiorL presented by.. the_case wasTwhether theplaihtilf had a prescriptive right to drain her land throug h this ditch. If she had, the defendant had no right to ob- struct it. if she had not, then the defendant had a right to fill it up on his own land. Evidence was given on the question, whether the use had been ad- verse, or only permissive. That question was submitted to the jury, who found for the plaintiff. In his report of the case, his Honor, the presiding judge (Evans, J.), says : "It was clear, that from 1820 to 1833, the land of defendant_be-._ longed to in fants ; and there was not the sTfghtest evidence to change the original character of the use, up to the death of B. Cosnahan. My own opinion, founded on a pretty full argument, made in the case of Boykin v. Cantey, which I tried at Kershaw, was, that the pre- sumption of title, arising from adverse use, did not arise when the owners were, at the time of its commencement, infants ; and that, even in cases of intervening infancy, the presumption was suspended during infancy, for the_p^resumption depends, not on the use alone, but the acquiescence of the.owners. In this case, there is no doubt about the facts. The ii sg^ began in 1817, and continued to 1847, a period of thirty •^'^7 106 ORIGINAL TITLES (Part 1 years. But during the, time, the land belonged to infants tliirteen years, leaving only seventeen years. Entertaining this opinion, if 1 had left that point to the jury, they of course would have found for tlie defendant; but I did not feel at liberty, after having spent more than a day on the trial, to arrest the case by a nonsuit, on an undecided point, and one of difficult solution. The case was sent to the jury on the other points, reserving to the defendant tlie right to renew his motion in the Appeal Court." The defendant appealed, and now moved for a nonsuit, or new trial, on several grounds ; tlie f ourtli ground for a nonsuit was as follows : Because, admitting that the plaintiff had adverse possession for twenty-nine years, it was in evidence, that for thirt een years of thi s time, the proprietors of the servient tenement were infants, against whom an adverse possession could not grow into a right. Curia, per Evans, J. There are several questions presented by the brief in this case, but as the decision depends on the fourth ground for a nonsuit, none of the otlier questions will be considered. That ground is in the following words, to wit, "admitting that the plaintiff had adverse possession for twenty-nine years, thirteen years of this time the proprietors of the servient tenement were infants, against whom an adverse possession could not grow into a right." The facts of the case, necessary to be stated in order to understand this ground, ' ' are these. ' In 1817, tlie ditch, which was the subject of controversy, was dug by Lamb through Cosnahan's land, by his permission or con- sent, for the purpose of draining some ponds on the land of Lamb. The ditch has been kept open ever since, until obstructed by the de- fendant, who now owns the land. In 1820, Cosnalian died, leaving a widow and infant children his heirs at law, one of whom was not of age until 1841. In 1833, the land was sold, under a decree of the Court of Equity, for partition, and purchased by one E. Cosnalian, from whom, by several intermediate conveyances, the defendant de- rives his title. .-J The g^uest_ion_ arising on these facts is, whether the plaintiff, who is the owner of Lamb's land, to drain which the ditch was dug, has acquired, by the use thereof, a right of drainage against the owners of the land. There is no doubt that, according to our law, as de- clared in a great many cases, (the adverse use of an easement for twen- ty years will confer a right to the use of it, as fully as if a deed for it w^ere produced and proved. In the ordinary transactions of man- kind, we find that men are not disposed to allow others to exercise dominion over their property. When, therefore, we find tliat such dominion has been exercised for a long period, without objection on the part of the owner, it is reasonable to conclude that such use began in right, or it would have been objected to. This title is founded on the presumption of a grant, which time or accident has destroyed. But this is perhaps a legal fiction, which the law resorts to, to support Ch. 2) PRESCRIPTION 107 ancient possessions, and to maintain what the acts of the parties show they considered to exist. There can be no doubt that, if Cosnahan had Hved for twenty years after the use of the ditch commenced, and Lamb had used it adversely, as the jury have found, the right would have been perfect; and I suppose it equally clear, that if the time before Cosnahan's death, added to the time which elapsed after the sale in 1833, together, made the full period of twenty years, the right would be beyond dispute. For in both cases there would be an adverse use, and an acquiescence by those laboring under no disability, for the full period that the law requires to support, the presumption of a grant. In this case these two periods of time amount to only seven- teen years, and un less the presump tion ca n arise against the infants, the twenty years is incomplete. In McPherson on Infants, it is said (p. 538) : "It is a maxim of law, that laches is not to be imputed to an infant, because he is not sup- posed to be cognizant of his rights, or capable of enforcing them." In Bacon's Abridg. title Infant, G, (5 vol. 110,) last edition, it is said: "The rights of infants are much favored in law, and regularly their laches shall not prejudice them, upon the presumption that they un- derstand not their rights, and that they are not capable of taking no- tice of the rules of law so as to apply them to their advantage." The same doctrine is to be found in all the elementary writers from Coke to the present time. The presumption arises from the acquiescence of the parties interested to dispute it, and it would be difficult to assign a reason for drawing any conclusion from the acquiescence of an in- fant, who is supposed in law not to be cognizant of his rights, or capa- ble of enforcing them. Accordingly we find, that in all the cases which have been decided^ so far as I know, no presumption has been allowed against the rights of an infant, whether the question related to the satisfaction of bonds for the payment of money, or the performance of other acts, or to rights growing out of what Best calls a non-exist- ing grant. In Boyd v. Keels, decided in 1830, it was held that no presumption could arise that the condition of a bond of an adminis- trator had been performed, because the distributee, to whom he was to account and pay over the money, was an infant. The same was af- firmed in the case of Brown v. McCall, 3 Hill, 335. In Gray v. Givens, 2 Hill, Eq. 514, Judge ^arper says : "I think it has not been questioned, that the time during which the party to be affected has been under disability, must be deducted in computing the lapse of time, in analog)' to the Statute of Limitations. Such was the case in Riddlehoover v. Kinard, 1 Hill, Eq. 376. If the possession were taken in early in- fancy, the title might be matured before the infant arrived at age, and before the Statute of Limitations had begun to run against him. The decisions have been numerous, and the practice habitual and I am not aware of any doctrine or decision to the contrary." We have no case involving the right to an easement, in which the 108 ORIGINAL TITLES (Part 1 question involved in this case has been decided by this court. In Watt V. Trapp, 2 Rich. 136, Judge O'Neall, on the circuit, expressed the opinion to the jury, tliat the presumption of a grant to a way would be arrested by infancy. But that point was not necessarily involved in the case, and this court declined to express any opinion, as, accord- ing to my recollection, it was not argued. In otlier States the ques- tion has been decided. In the case of Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156, it was held, tliat a grant cannot be presumed from the use and enjoyment of an easement for the term of twenty years, when the party, who must have made the grant if it existed, was an infant at the time of making it. This does not come up fully to the case under consideration, because in this case the grant, if any, must have been made coeval with the use, and that was in the lifetime of Cosnahan, who was adult. But that can make no difference, unless we apply the rule, which has been acfopted in relation to some of the clauses of the Statute of Limitations, viz., that where the Statute be- gins to run, it will not be arrested by any intervening disability. But tETs'has not been contended for, and tliere is no semblance of author- ity to support it. This construction arises on a positive enactment, that the action must be within four years from the time the right of action accrued; whereas presumptions arise from the assertion of the right, and the acquiescence in it, during the whole period of twenty years, and how can it be said that the infants have acquiesced, when they were incapable of asserting their rights ? But the case of IMelvin v. Whiting, 13 Pick. (Mass.) 190, was a case of intervening infancy. The plaintiff claimed title to a several fish- ery, on the defendant's soil, and relied, to support his title, on proof of an adverse, uninterrupted, and exclusive use and enjoyment for twenty years. The jury were instructed by the Chief Justice that, to raise such a presumption of conveyance, it must appear that such exclusive right had been used and enjoyed against those who were able in law to assert and enforce their rights, and to resist such adverse claim, if not well founded ; and, tlierefore, if the persons against whom such adverse right is claimed, were under the disability of infancy, the time during which such disability continued, was to be deducted in the computation of the twenty years ; and this construction was sup- ported by the Court of Appeals. The only dictum which I have found to the contrar}^ is contained in the opinion of Judge Story, in the case of Tyler v. Wilkinson, 4 Mason, 402, Fed. Cas. No. 14,312. The action involved the priority of right to use the water in Pawtucket River, and in no way involved the question of the rights of infants. The question which he was discussing was, whether the presumption from adverse use was a presumptio juris et de jure, a question of law to be decided by the court, or a fact to be determined by the jury. In support of his argument, that it is a presumptio juris, he says the right by presumption of a grant is not affected by the intervention of per- sonal disabilities, such as infancy, coverture, and insanity. This die- Ch. 2) PRESCKIPTION X09 turn is noticed and disregarded in the New Hampshire case above re- ferred to, and I may be permitted to say, without any disrespect to that great and learned judge, that he di d not bear in mind the distinction ^ between a right claimed by prescription, and a presumption of right from a non-existing- grant. The former requires a use beyond legal memory7tlTe"latter may arise within twenty years. Best on Presump. § 88 ; 3 Stark. Ev. 911, 3d Ed. ; 2 Ev. Poth. 139. We are of opinion, that the period of time^during which the infant heirs of Cosnahan were the owners~oFTHe servient tenement, is not to be computed as a part of the twenty years' adverse use necessary to vest the easement in the plaintiff, and upon this ground the plain- tiff should have been nonsuited on the circuit. It is therefore ordered that the verdict be set asjdej, and the defendant have leave to enter up a judgment of nonsuit. O'NeaIvL and Frost, JJ., concurred. Motion granted.* £^^ m AjL^^ , BAXTER v. TAYLOR. (Court of King's Bench, 1832. 4 Bam. & Adol. 72.) Declaration stated that a certain close called Stoney Butts Lane, situate in the parish of Plalifax in the county of York, was in the pos- session and occupation of J. H., J. E., and J. A., as tenants thereof to the_plaintiffj the reversion thereof then and still belonging to the plain- tiff ; yet the defendant, well knowing tlie premises, but contriving to prejudice and aggrieve the plaintiff in his reversionary estate and in- terest, whilst the said close was in the possession of the said J. H., J. E., and J. A., to wit, on, &c. wrongfully and unjustly, and without tlie leave and license, and against the will of the plaintiff, put and placed upon the said close diverse large quantities of stones, and continued the same for a long space of time, to wit, from thence hitherto; and also with the feet of horses, and the wh^Js^ of carriages, spoiled and destroyed divers parts of the said close, whereby the plaintiff was greatly injured in his rev ers io nary_ estate and interest therein. Plea, not guilty. At the trial before Parke, J., at the last assizes for the county of York, it appeared that the plaintiff was seised in fee of the closes mentioned in the declaration, which he had demised to tenants ; that the defendant had with his horses and cart entered upon the close called Stoney Butts Lane ; and that after notice had been given him by the plaintiff to discontinue so doing, he claimed to do so in exercise of a right of way. The learned Judge was of opinion, that although that might be good ground for an action of trespass by the occupier of the plaintiff's farm, it was not evidence of any injury to the reversion- ary estate, and therefore that the action was not maintainable ; and he 3 See Saunders v. Simpson, 97 Tenn. 382, 37 S. W. 195 (1896) ; Hodges v. Goodsyeed, 20 R. I. 537, 40 Atl. 373 (1898). 110 ORIGINAL TITLES (Part 1 nonsuited the plaintiff, but reserved liberty to him to move to enter a verdict. Taunton, J. I think there should be no rule in this case. Young V. Spencer, 10 B. & C. 145, is not in point. That vv^as an action on tlie case in the nature of wasteby a lessor against his ov^^n lessee, _Here_ the action is by a reversioner against a mere stranger, and a very differ- ent rule is applicable to an action on the case in the nature of waste brought by a landlord against his tenant, and to an action brought for an injury to the reversion against a stranger. Jackson v. Pesked, 1 M. & S. 234, shews, that if a plaintiff declare as reversioner for an injury done to his reversion, the declaration must allege it to have been done to the damage of his reversion, or must state an injury of such a per- manent nature as to be necessarily prejudicial thereto, and tlie want of such an allegation is cause for arresting the judgment. If such an alle- gation must be inserted in a count, it is material, and must be proved. Here the evidence was, that the defendant went with carts over the close in question, and a temporary impression was made on the soil by the horses and wheels ; that damage was not of a permanent but of a transient nature; it was not therefore necessarily an injury to the plain- tiff's reversionary interest. Then it is said that the act being accompa- nied with a claim of right, will be evidence of a right as against the plaintiff, in case of dispute hereafter. But acts of that sort could not operate as evidence of right against the plaintiff, so long as the land was demised to tenants, because, during that time, he had no present remedy by which he could obtain redress for such an act. He could not maintain an action of trespass in his own name, because he was not in possession of the land, nor an action on the case for injury to the reversion, because in point of fact there was no such permanent in- jury as would be necessarily prejudicial to it; as, therefore, he had no remedy by law for the wrongful acts done by the defendant, the acts done by him or any other stranger would be no evidence of right as against the plaintiff, so long as the land was in possession of a lessee. In Wood V. Veal, 5 B. & A. 454, it was held that there could not be a dedication of a way to the public by a tenant for ninety-nine years, without consent of the owner of the fee, and that permission by such tfenant would not bind the landlord after the term expired. I think therefore that the plaintiff cannot maintain the present action ; and there is not doubt sufficient to induce me to think that there ought to be a rule nisi for a new trial. PATTitsoN, J. I am of opinion that the nonsuit was right. Young V. Spencer, 10 B. & C. 145, was not an action by the reversioner against a stranger, but by a landlord against his tenant. It was an action on the case in the nature of waste. To entitle a reversioner to maintain an action on the case against a stranger, he must allege in his count, and prove at the trial, an actual injury to his reversionary interest. It is said that this action is maintainable, because the plaintiff's title may be prejudiced by a trespass committed under a claim of right; but then for Ch. 2) PRESCRIPTION 111 such an injury the action must be brought in the name of the tenant, who is the person in the actual possession of the land. It is true the landlord cannot bring an action in the tenant's name without his assent; but that, generally speaking, would be obtained without difficulty, and may be always made matter of arrangement between the landlord and his tenant. The landlord may even provide by covenant in his lease ^ tha^he shall be allowed to .,sue_in_tusjten.ant's name for any trespass committed on the land. Parke, J. I am clearly of opinion that there was no injury to the plaintiff's reversionary interest; and to entitle him to maintain this ac- tion it was necessary for him to allege and prove that the act complain- ed of was injurious to his reversionary interest, or that it should appear to be of such a perm.anent nature as to be necessarily injurious. A sim- ple trespass, even accompanied with a claim of right, is not necessarily injurious to the reversionary estate, and what Lord Tenterden said in Young V. Spencer, 10 B. & C. 145, must be construed with reference to the subject matter then under consideration, an action on the case in the nature of waste by a reversioner against his tenant. Rule refused.* y / / 'h „ 4^f ,^ ,'. SERJEANT WILLIAMS' NOTE TO YARD v. FORD, 2 Wms. Saund. 172, 175 : "In Lewis v. Price, Worcester Spring Assizes, 1761, which was an action on the case for stopping and obstructing the plain- tiff's lights, Wilmot, J., said, that where a house has been built forty years, and has had lights at the end of it, if the owner of the adjoining ground Jbuilds against them so as to obstruct them, an action lies ; and this is founded on the same reason as when they have been immemorial, for this is long enough to induce a presumption that there w^as originally some agreement between the parties ; and he said that twenty years is sufficient to give a man a title in ejectment, on which he may recover the house itself ; and he saw no reason why it should not be sufficient to en- title him to any easement belonging to the house. So in an action on the case for stopping up ancient lights, the defendant attempted to show that' the lights did not exist more than sixty years, Wilmot, C. J., said, that if a man has been in possession of a house with lights, belonging to it for fifty or sixty years, no man can stop up those lights; possession for s uch a length of time amounts to a grant of the liberty of making 4 But see Lund v. New Bedford, 121 Mass. 2S6 (1876) ; Cross v. Lewis, 2 B. & C. 686 (1824); Ballard v. Demmon, 156 Mass. 449, 31 N. E. 635 (1892), where the user commenced less than the prescriptive period before the ser- vient land v.-as leased. See, also, Reimer v. Stuber, 20 Pa. 458, 59 Am. Dee. 744 (1853), where the user took place while the servient land was in the pos- session of tenants from year to year. A. owns lands in the possession of B. under a lease of 99 years. What would be the effect, as against B., of an adverse user for the prescriptive period? See Bright v. Walker, 1 Cr., M. & R. 211 (1834); Wheaton v. Maple & Co., [1893] 3 Ch. 48; Kilgour v. Gaddes, [1904] 1 K. B. 457; Wallace v. Fletcher, 30 N. H. 453 (1855), supra, p. 94. 112 ORIGINAL TITLES (Part 1 them ; it is evidence of an agreement to make them. If I am in posses- sion of an estate for so long a period as sixty years, I cannot be dis- turbed even by a writ of right, the highest writ in the law. If_mX-E^ se^Qn_of the house cannot be distu_rbed,_sha]l I be disturbed in my fights? It would be'absurSr * * * DougarvTWilson, Sittings C. ^Brr?in. 9 Geo. iir/ 3/ 7- WEBB V. BIRD. (Exchequer Chamber, 1863. 13 C. B. [N. S.] 841.) This was a writ of error upon a case stated by an arbitrator for the opinion of the Court of Common Pleas, upon the argument of, which that Court held that the owner of a wind mill cannot c laim,_ ^ther by presjmption^^r^by^resumptjpn of arrant arising from twenty years' acquiescence, to be entided to the free and uninterrupted pas sage of the cur i:£nis.pf win d and air t o his mill ; and that such a claim is not within the 2d section of the 2~^3 W. IV, c. '71, whic h is confined to rights of way or other__easements to be exercised upon or over the surface of the adjoining land. WiGHTMAN, J., now delivered the judgment of the Court: We took time for the consideration of this case on account of its novel cha racter. It appears by the finding of the arbitrator to whom the case was referred by order of Nisi Prius, that the plaintiff was the owner and occupier of a windmill built in 1829; that, from the time of its being built, down to 1860, the occupier had enjoyed as of right and without^interruption the use and benefit of a free current of air from the west for the working of the mill ; that, in the last-mentioned year, 1860, the defendants erected a school-ho use wit hin twenty-five yards of the mill, and therejjy obstructed the current of air which would have^come to it from~tTie~west, wherel)y lli'e workmg^Ttlie mill was hindered, and the mill became injured and deteriorated in value. Two cases were cited and mainly relied on for the plaintiff, — one in the 2 Rolle's Abridgment, p. 704, and the other in 16 Viner's Abridg- ment, tit. Nuisance (G), pi. 19 ; but both are shortly stated, and amount to little more than dicta ; and it does not appear that they are anywhere else reported, or in what manner or the terms in which such a right was claimed, whether by prescription or otherwise. There is a third case, called Trahern's Case, Godbolt 233, which was the case of a nui- sance caused by building a house so near as to hinder the working of the plaintiff's mill; and the judgment of the Court appears in the first instance to have been like that of the case in Rolle's Abridgment, that 5 "There were two nisi prius decisions at an earlier day (Lewis v. Price, in 1761, and Dongal v. Wilson, in 1763); but the doctrine [that of acquisition of easement of light and air by user for a definite period of time] was not sanctioned in Westminster Ilnll until 17S6, when the case of Darwin v. JDpton was decided by the K. B. 2 Saund. 175. note (2). This was clearly a "Hepiarture from the old law.'TTurv v. Pope. Cro. Eliz. 118 (1587)." Brouson, J., in Parker v. Foote, 19 Wend. (N. Y.) 309, 318 (1838). Ch.2) PEESCEIPTION 113 SO much of the house should be thrown down as hindered the working of the mill. But, the plaintiff contending that the whole house should be thrown down, the case was adjourned, and no ultimate decision ap- pears to have been given. These are all the authorities which we have been able to find upon the subject. We agree with the opinion of the Court of Common Pleas, that the right to the passage of air is not a right to an ease ment within the meaning of the 2 & 3 W. IV, c. 71, §Z '" The mill was built in 1829, and so the claim cannot be by prescrip- tion. The distinction between easements, properly so called, and the right to light and air, has been pointed out by Littledale, J., in Moore v. Rawson, 3 B. & C. 332, 340 (E. C. L. R. vol. 10), 5 D. & R. 234 (E. C. L. R. vol. 16). It remains, therefore, to be considered, whether, independently of the statute, the right claimed may be supported upon the presumption of a grant arising from the uninterrupted enjoyment as of right for* a certain term of years. We think, in accordance with the judgment of the Court of Common Pleas, and the judgment of the House of Lords in Chasemore v. Richards, 7 House of Lords Cases, 349, that the pre- sumption of a grant from long-continued enjoyment only arises where the person against whom the right is claimed might have interrupted or prevented the exercise of the subject of the supposed grant. As was observed by Lord Wensleydale, it was going very far to say that a man must go to the expense of putting up a screen to window-lights, to pre- vent a right being gained by twenty years' enjoyment. But, in that case, the right claimed, which was the percolating of water under- ground, went far beyond the case of a window. In the present case, it would be practically so difficult, even if not absolutely impossible, to interfere with or prevent the exercise of the right claimed, subject, as it must be, to so much variation and uncertainty, as pointed out in the judgment below, that we think it clear that no presumption of a grant, or easement in the nature of a grant, can be raised from the non-inter- ruption of the exercise of what is called a right by the person against whom it is claimed, as a non-interruption by one who might prevent or interrupt it. We are therefore of opinion that the judgment of the Court below should be affirmed. Bi^ACKBURN, J.. I perfectly concur in the judgment, but wish, for myself, to guard against its being supposed that anything in the judg- ment affects the common-law right that may be acquired to the access of light and air through a window, or to the right to support by an ancient building from those adjacent. I agree with my Brother Willes, in the Court below, that the case of the right to light, before the statute, stood on a peculiar gi-ound. Judgment affirmed. " ' Aig.Pbop. — 8 - >- 114 OBIGINAL TITLES (Part 1 _„v\/L|firi'"'^ STURGES v. BRIDGMAN. (Court of Appeal in Chancery, 1879. 11 Ch. Div. 852.) The plaintiff in this case was a physician. In the year 1865 hej)ur- chas ed the lease o f a hous e in Wimpole Street, London, which he oc- cupied as his professional residence. Wimpole S.tjeetjuns north and. souths and is crossed at right angles by Wigmore Street. The plaintiff's house was on the west side of Wimpole Street, and was second house from the north side of Wig- more Street. Behind the house was a garden, and in 1873 the plaintiff greeted a consujtingjrqom at the end of the garden. The defendant was a c onfectioner in large business m Wigmore Street. His house was on the north side of Wigmore Street and his kitchen was at the back of his house, and stood on ground which was formerly a garden and_abutted on tlie portion of the plaintijflTs garden on which he built the consulting-room. So that there was nothing between the plaintift''s consulting-room and tlie defendant's kitchen but the party wall, The defendant had in his kitchen twp_ large. marble mortars set in brick-work built up to and against the party-wall which separated his kitchen from the plaintiff's consulting-room, and worked by two large wooden pestles held in an upright position by horizontal bearers fixed into the party-wall. These mortars were used for break- ing up and pounding loaf-sugar and other hard substances, and for pounding meat. The plaint iff ^eged that when the defendant's pestles and mortars were being used, the ^ise and vibration thereby caused were very great, and were heard and felt in the plaintiff's consulting-room, and such noise and vibration seriously annoyed and disturbed the plaintiff and materially interfered with him in the practice of his pn)fession. In particular the plaintiff stated that the noise prevented him from ex- amining his patients by auscultation for diseases of the chest. He also found it impossible to engage with effect in any occupation which re- quired thought and attention. The use of the pestles and mortars varied with the pressure of the defendant's business, but they were generally used between the hours 10 A.' M. and 1 P. M. The glaintiff made several complaints of the annoyance, and ulti- mately brought this action, in which he claimed an injunction to re- strain the defendant from using the pestles and mortars in such man- ner as to cause him annoyance. The defendant stated in his defence that he and his father had used one of the pestles and mortars in the same place and to the same ex- tent as now for more than sixty years, and that he had used the second pestle and mortar in tlie same place and to the same extent as now for more than twenty-six years. He alleged that if the plaintiff had built Ch. 2) PRESCRIPTION 115 his consulting-room with a separate wall, and not against the wall of the defendant's kitchen, he would not have experienced any noise or vibration ; and he denied that the plaintiff suffered any serious annoy- ance, and pleaded a prescriptive right to use the pestl.es and mortars under the 2 & 3 Will. IV, c. 71. Issue was joined, and both parties went into evidence. The result of the evidence was that the existence of the nuisance was, in the opin- ion of the court, sufficiently proved ; and it also appeared that no ma- terial inconvenience had been felt by the plaintilf until he built his con- sulting-room. 1879, July 1. Thesiger, L. J., delivered the judgment of the court (James, Baggallay, and Thesiger, L. J J.) as follows: The defendant in this case is the occupier, for the purpose of his business as a confectioner, of a house in Wigmore Street. In the rear of the house is a kitchen, and in that kitchen there are now, and have been for over twenty years, two large mortars in which the meat and other materials of the confectionery are pounded. The plaintiff, who is a physician, is the occupier of a house in Wimpole Street, which until recently had a garden at the rear, the wall of which garden was a party-wall between the plaintiff's and the defendant's premises, and formed the back wall of the defendant's kitchen. The plaintiff has, however, recently built upon the site of the garden a consulting-room, one of the side walls of which is the wall just described. It has been proved that in the case of the mortars, before and at the time of ac- tion brought, a noise was caused which seriously inconvenienced the plaintiff in the use of his consulting-room, and which, unless the de- fendant had acquired a right to impose the inconvenience, would con- stitute an actionable nuisance. The defendant contends that he had acquired the right, either at common law or under the Prescription Act,, by unmterrupte^ user for more than twenty years. In deciding this question one more fact is necessary to be stated. Prior to the erection of the consulting-room no material annoyance or inconvenience was caused to the plaintiff or to any previous occupier of the plaintiff's house by what the defendant did. It is true that the defendant in the 7th paragraph of his affidavit speaks of an invalid lady who occupied the house upon one occasion, about thirty years be- fore, requesting him if possible to discontinue the use of the mortars before eight o'clock in the morning; and it is true also that there is some evidence of the garden wall having been subjected to vibration, but this vibration, even if it existed at all, was so slight, and the com- plaint, if it could be called a complaint, of the invalid lady, and can be looked upon as evidence, was of so trifling a character that, upon the maxim de minimis non curat lex, we arrive at the conclusion that the defendant's acts would not have given rise to any proceedings either at law or in equity. Here then arises the objection to the acquisition by the defendant of any easement. That which was done by him was 116 ORIGINAL TITLES (Part 1 in its nature such that it could not be physically interrupted ; it could .- not at the same time be put a stop to by action. Can userwhich is nei- ^ ther preventable nor actionable found an easement? We think not. The question, so far as regards this particular easement clainiedTls the same question whether tlie defendant endeavors to assert his right by common law or under the Prescription Act. That Act fixes periods for the acquisition of easements, but, except in regard to the particu- lar easement of light, or in regard to certain matters which are im- material to the present inquiry, it does not alter the character of ease- ments, or of the user or enjoyment by which they are acquired. This being so, the law governing the acquisition of easements by user stands thus : Consent or acquiescence of the owners of the servient tenement ^ lies at the root of prescription, and of the fiction of a lest grant, and Tience the acts or user, which go to the proof, of either the one or the other, must be, in tlT,e language of the civil law, nee vi nee clam nee precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbor of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavors to interrupt, or which he temporarily licenses. It is a mere extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to hold, that an enjoyment which a man cannot prevent raises no presumption of, y- consent or acquiescence. Upon this principle it was decided in Webb V. Bird, 13 C. B. (N. S.) S41, tliat currents of air blowing from a par- ""ticular quarter of the compass, and in Chasemore v. Richards, 7 H. L. C. 349, that subterranean water percolating through the strata in no known channels, could not be acquired as an easement by user; and in Angus v. Dalton, 4 Q. B. D. 162, a case of lateral support of build- ings by adjacent soil, which came on appeal to this court, the principle was in no way impugned, although it was held by the majority of the court not to be applicable so as to prevent the acquisition of that par- ticular easement.*^ It is a principle which must be equally appropriate to the case of affirmative as of negative easements ; in other words, it is equally unreasonable to imply your consent to your neighbor enjoy- ing something which passes from your tenement to his, as to his sub- jecting your tenement to something which comes from his, when in both cases you have no power of prevention. &Lit_the_^ffirmative easernent differs, from jthe negative__easement in this, that the latter can under no circumstances be interrupted except by acts done, upon the servient tenement ; but the former, constituting, as it does, a direct interference with the enjoyment by -the servient owner of his tenement, may be the subject of legal proceedings as well as of physical interruption. To put concrete cases, the passage of lightand air to your neighbor's windows may be physically interrupt- 6 See the same case in the House of Lords. 6 App. Cas. 740 (1S81). Ch. 2) PEESCRIPTION 117 ed by you, but gives you no legal grounds of complaint against him. The pas sage of water from his land on to yours may be physically in- terruptedj.or may be treated as a trespass and made tlie ground of ac- tion for damages, or for an injunction, or both. J^oise is similar to currents o± air and the flow of subterranean and uncertain streams m its practical incapability of physical interruption, but it differs from them in its capability of grounding an action. Webb v. Bird and Chasemore v. Richards are not, therefore, direct autliorities governing the present case. They are, however, illustrations of the principle which ought to govern it ; fo r until the noise , to take this case, became an_actionaj3le_iiuisaJ!cej_which it did not at any time before the consult- ing-room, was built, the basis of the presumption of the consent^ viz., the power of prevention ph ysically or_. by action, was never pres- A' * * * J^^.^6t^ HUBBARD V. TOWN. (Supreme Court of Vermont, 1860. 33 Vt. 295.) PiERPOiNT, J.^ This action is brought to recover the damage claim- ed to have been su stained bv the plaintiff in consequence of the defen d- ant's obstructing his light s. It appears from the case that the building which has been owned and occupied by the plaintiff and his tenants for more than twenty- five years prior to the acts complained of, stands upon the line between his premises and the premises of the defendant, and that the defendant has owned and occupied his premises during the aforesaid period; that the windows in the plaintiff's building opened out toward the premises of the defendant, admitting light from that direction, and that they have so remained without obstruction, and without question on the part of the defendant for the period o jLtwentyj^fiye years_or more; , that in 1859 the defenda nt e_reci£d-a.-b.uilding^ on his„owrL premises immediately adjoining that of the plaintiff, so as to excludethe^light from t wo of the plaintiff's windows. The^nl)r question involved in this case is, wheth er the plainti ff by such long~aiid umnterrupjted use of his windows, and tlie light passing through them, has^thereb}' acquired the right so to continue his win- dows and thus to have the light pass through them, so that any act of the defendant which shall materially obstruct such light, will make him a wrong doer, and liable for any damage to the defendant that may ensue therefrom. The rulg. seems now, to be well settled in England, that such long nd uninterrupted use of light, gives the right to con tin ue' its use, and oj^^^ 1 The balance of the opinion is omitted. 8 The statement of facts is omitted. The case sufficiently appears from the opinion. 118 ORIGINAL TITLES (Part 1 to insist upon its remaining" unobstructed by the adjoining proprietor for all time. The courts place this upon the same grounds as rights "of way, and other rights acquired in and over tlie premises of another by long and undisturbed use ; presuming from the long exercise of the privilege by tlie one and an acquiescence tlierein by the other, tliat the right had its origin in a grant. ^" ^hile the general doctrine has been universally adopted in this country, its application to cases of this kind has not been generally recognized, and in many of the States has been expressly denied. '^""Our statute of limitations cannot be brought in aid of the plaintiff's tlaim. The statute in terms only deprives the aggrieved party of the right of action after the limited period from the time the cause of ac- tion accrues, and although our courts have held that the exercise of the right by one party, and an acquiescence therein by the other, for such period, vests in the party so exercising it an absolute right, still in de- termining the question whether such right has in fact become an ab- solute one, the time that the one has so exercised it, is to be computed from the period when a cause of action therefor first accrued to the other, which he has omitted to enforce ; so that no right can be lost or acquired by virtue of the statute, where there has been no act done by the one, for which the law gives a remedy by action to the other ; and it is conceded in this case that the defendant had no right of action against the plaintiff for any act of his, in erecting his building and opening and continuing his windows, on the side adjoining to, and overlooking the defendant's premises. This reason would seem to apply with equal force, against the plain-: tiff's right to recover on the ground that a grant will be presumed f romi lapse of time to sustain his claim. •---- The principle upon which a grant is presumed is that in no other way can the acts of tlie parties be rationally accounted for. Such pre- sumption is required to account for the exercise of the right by the oi^e, and the acquiescence therein by the other, for so long a period. The right must be exercised adversely or under a claim of a right so to exercise it, by the one, and it must be acquiesced in by the other. This of itself presupposes that the exercise of the right by the one,_ without a grant, is a violation of some right of the other ; otherwise it could not be adverse, within the meaning of the rule; neither could the other acquiesce, for that presupposes a legal right to object and re- sist. If then there is no violation of the rights of another, no presujnptiqn, of a grant by sucE other arises; there is no occasion for it. There is no right exercised or claimed by the one, that belongs to the other, or which he could grant, if he should attempt it. How then can this doctrine of presumption apply to a case like the present? The erection of the building by the plaintiff on the line be- tween him and the defendant was no violation of any right of the de- Ch. 2) PEESCJBIPTION 119 fendant; he could not complain of, or prevent it, and his assent or dissent could in no manner atfect the transaction. The legal right to do the act was perfect in the plaintiff. His right to erect his building on the division line is not controverted, the wisdom of the act is more, questionable. He might haVe made his walls solid, thus entirely ex- cluding the light from that direction; he chose to leave apertures therein : thereby allowing the light to remain unaffected to that ex- tent; but how can it be said that by excluding the greater part, he acquires any better right to the remainder, than he would have had to the whole, if he had not excluded any ? He has not done any act which has had any effect to control or influence the light, except to exclude it. He did not^draw or cause the light to pass in upon his pr_enn_ses in, any other than its natural manner ; it remained upon and over the de- fendant's premises as it had always been. As there was no interfer- ence with the rights of the defendant, it is difficult to see upon what the presumption of a grant can be based. Lapse of tim e and the pre- sumption^ arising therefrom are resorted to, only to justify in one, that which would otherwise be a usurpation of the rights of another. If a man can acquire, by use, a right to an uninterrupted enjoyment of light under circumstances like the present, why not acquire a right to_A_lilie .enjoyment of the prospect from the same windows, or to a free access of the air to the outside of his building to prevent decay, and many other rights of a similar and no more ethereal character? The result of which would be, if allowed, an utter destruction of the value of the adjoining land for building purposes. Windows are often of more importance for the prospect they afford, than for the light they admit. The light may be obtained from other directions, the prospect cannot, A pleasant prospect from the windows of a dwelling, always contributes more or less to the enjoyment of the occupants, and often enters largely into its pecuniary estimate. But to admit that a mere enjoyment of such prospect for fifteen years, gives him the right to insist that it shall remain uninterrupted for all future time, would be to recognize a principle at variance with well establish- ed rules, and one that could not be tolerated in this country. No such righ t can be acquired by use for the same reason that its exercise by one is no infringement of the rights of another, for which jd^ the law gives an action. Le Blanc, J., in Chandler v. Thompson, 3 Camp. 82, says, that although an action for opening a window to dis- turb the plaintiff's privacy, was to be read of in the books, he had never known such an action to be maintained, and that he had heard it laid down by Eyre, Ch. J., that such an action did not he. We think the English courts, in applying the doctrine of the pre- sumption of grants from long use and acquiescence to this class of cases, clearly departed from the ancient common law rule as laid down in Berry v. Pope, Cro. Eliz. 118, and the error as it seems to us, con- sists in placing cases Hke the present upon the same footing and mak- 120 OEIGINAL TITLES (Part 1 ing them subject to the same rules that govern another class of cases, to which they really have no analogy. In ^ewis v. Price, Wilmot, J^, j^j said "that when a house had been built forty years and has had lights at the end of it, if the owner of the adjoining ground builds against them so as to obstruct them, an action lies ; and this is founded on the same reason as where they have been immemorial, for this is long enough to induce a presumption that tliere was originally some agree- ment between the parties, and that twenty years was sufficient to give a man a title in ejectment on which he may recover tlie house itself, and he saw no reason why it should not be sufficient to entitle him to an easement belonging to the house." As we have already seen, no presumption of an agreement arises, as none was necessary to justify tlie act. The man who occupies his own house for twenty years has no better title to it at the end of that time, than he had in the outset. Does he acquire any greater right to the light by the occupation than to the house? Clearly not; h aving usurpednprighthe can acquire none by lapse of time.. The error in the reasoning is, in saying that because the man who takes possession of his neighbor's house and holds it adversely for twenty years (his neighbor acquiescing therein,) acquires a title to it, therefore the man who opens windows in his own house that in no way interferes with the rights of his neighbor, and of which such neighbor has no legal right to complain, and keeps them open for twenty years, thereby ac- quires a right to insist tliat no act shall be done by his neighbor on his own land, that in any respect interferes with, or obstructs the light to those windows. In the one case there is an infringement of the rights of another for which the law gives a remedy by action; in the other there is not. This constitutes a radical dilterence between the two caseSj and that too in respect to the very point upon which the whole doctrine of presumption in cases like those under consideration de- pends. It might be urged with much force that a man who conveys a house with the privileges, etc., would not have a right to make an erection on his own land adjoining, that would shut out the light from the Vv^ndows in the house so conveyed, and it may be said that he who has occupied another's house for such length of time and under such circumstances that a grant will be presumed, stands upon the same footing as an ordi- nary grantee. However that may be, this case involves no such ques- tion. In those cases the question turns upon the fact that the title to the premises was derived by deed actual or presumed, from the party who seeks to deprive his grantee of the enjoyment of the right he has conveyed. The right does not depend upon the lapse of time, but is as perfect in the grantee the moment the deed is executed as it can ever iie^i Here the title to the premises of the plaintifl: was never in the de- ^fendant, but has been in the plaintiff through the whole period. \ This question was fully considered in New York in tlie case of Ch. 2) PBESCRIPTION 121 Parker v. Foote, 19 Wend. (N. Y.) 309, Bronson, J., says : "Upon what principle courts in England iiave applied the same rule of presumption, to two classes of cases so essentially different in character, i have been unable to discover. If one commit a daily trespass on tlie land of another under a claim of right to pass over, or feed his cattle upon it, or divert the water from his mill, or throw it back upon his land or machinery, in tliese and the like cases , lon^ continued ac quiescence affords strong presumption of right. T ~But in the case of lights there is no adverse user, nor indeed any use whatever of another's property, and no foundation" is laid for indulging any presumption against tlie rightful owner." And again he says : "T here is no principle I think, upon wdiich the modern English doctrine of ancient lights can be sup- ported ." The same doctrine was held in Pierce v. Fernald, 26 Me. 436, 46 Am. Dec. 573, and in Napier v. Bui winkle, 5 Rich. (S. C.) 312, in both of which cases the subject was fully discussed. We see no reasons growing out of the nature or necessities of this class of cases, that require us to extend the doctrine of the presump- tion of grants to them, but on the other hand, the establishment of a rule that would require a man to erect a building or wall, that he did not need, on his own premises, for the sole purpose of excluding the light from his neighbor's windows, would lead to continual strife and bitterness of feeling between neighbors, and result in great mischief. The judgment of tlie county court is affirmed." ^^MPAVEY V. VANCE. ^ (Supreme Court of Ohio, 1897. 56 Ohio St 162, 46 N. B. 898.) Error to Circuit Court, Highland County. ^ . Suit was brought by D. J. Vance and others to enjo in the def endant. A. E. Pavey, from closing up a cert ain wa^iise d by the plaint iffs over his land, which they claimed as appendant to their land. The defends ant denied the right. The case was appealed to the circuit court, where at the trial on the issues, the, court, at the request of the defendant, made a finding of the facts and its conclusions of law separately. The finding of facts is as follows : "That the pjaintiffs are the owners in fe e sim ple of the lands de- scribed as theirs in the petition, and that the defendant is the owner of the lands set out in the petition as his ; that the plaintiffs acquired 9 As to the somewhat analogous situation where the easement of lateral support is claimed by prescription, see Richart v. Scott, 7 Watts (Pa.) 460, 32 Am. Dec. 779 (1838); Mitchell v. Rome, 49 Ga. 19, 15 Am. Rep. 669 (1873); Tunstall v. Christian, SO Va. 1, 56 Am. Rep. 581 (1SS5) ; Sullivan v. Zeiner, ^^ ^^'^■I'.^^ ^^ ^^^- 2^^' -^ ^'' ^- ^- "^30 (1S93) ; Angxis v. Dalton, 8 Q. B D 85 (ISTTT^Q. B. D. 1G2 (1878), 6 App. Cas. 740 (1881); Solomon v. Vintners' Co., 4 H. & N. 585 (1859). 122 ORIGINAL TITLES (Part 1 the legal title from D. J. Vance; that D. J. Vance had occupied the lands from A. D. 1857; that the defendant acquired the title to his lands from Penelope Evans, who acquired it from Benjamin Barrere, now deceased; that defendant had notice after he contracted to buy said premises, and before his acceptance of the conveyance to him from ^vans, that D. J. Vance claimed the right of way contended for by the plaintiffs in this suit; that, for^mqrethan twenty-one years prior to the acquiring of title by defendant of the lands from Penelo pe Ev- ans, D. J. Vance and his family, in going to and from his farrn and. dwelling to the turnpike^jeading from Hillsboro to New Market, and_ others going to and from said pike to Vance's, had passed over the, lands of defendant, using a way or road through defendant's farm as a foot way, wagon way, carriage way, and for hauling produce to and from said Vance's farm, and horseback way, without let or hin- drance or obstruction from Benjamin Barrere in his lifetime, or Pen- elope Evans, or their tenants ; that said road was used by said Bar- rere and his successors in ownership, during all of said period of time, as a farm road through his farm from the pike to the dwelling house on the D. J. Vance farm, and to the back part of the farm to the farm line of said Vance, said entire farm being inclosed during all of said period of time, being inclosed by fences and gates; that the Vances, and also the owners and occupants of defendant's lands, used said way whenever they saw fit, and was also used as one of the means of approach (but not the only road) to the Vance farm and house, and for departure therefrom, to and from the said turnpike, and was so used by said Vances and those going to and from the Vance place, without asking leave of the occupants of defendant's farm and without objection, "The said roadway is described as follows : Beginning in the line of the land of defendant and land of Jesse and Elizabeth McConnaughey (formerly owned by Benj. Barrere); running thence a northwesterly course over the lands of said defendant, Pavey, and, crossing a branch of Rocky Fork creek, passes by the dwelling house on the lands of said Pavey, and continued a northwesterly course to the said Ripley turn- pike, at a point about twenty-seven rods southwest of the schoolhouse on said turnpike known as the 'Kansas Schoolhouse,' there being three gates on said roadway, viz. one gate at the pike, one at the Pavey dwelling house, and one at the line between the lands of the defendant and said Jesse and Elizabeth E. McConnaughey, and the length of said right of way from where it enters that land of said Pavey to its termination at said turnpike being about 116 rods. fThe court further finds that the defendant, A. E. Pavey, obstructed* said roadway in the spring of A. D. 1893, prior to the bringing of this suit, by erecting a fence across the same, and ever since preventing the Vajices' passing over the same, in vehicles and on horseback." ^he court found as a matter of law from these facts that the plain- tiffs were the owners of a right^ of way by prescription over the lands Ch. 2) PRESCRIPTION 123 of the defendant, and rendered judgment for the relief prayed for, enjoined the defendant from obstructing the way, other than by the use of gates as before maintained, and ordered the removal of the ob- structions. The defendant excepted to the court's conclusions of law and judgment on the facts, and prosecutes error here for a re- versal of the judgment, on the ground that it is not supported by the ^facts. MiNSHALL, J. (after stating the facts). The plaintiff in error claims that the court erred in its judgment because it does not appear from its finding that the way was used for the requisite period adversely to the defendant and his predecessors in title, and under a clajm of. right, nor is it found that it was not permissive. The court found; that, for more than 21 years prior to the time the defendant ac- quired his title to the land, D. J. Vance, the predecessor in title of the plaintiffs, and his family, "in going to and from his farm and dwelling to the turnpike, and others going to and from said pike to Vance's, ' have passed over the lands of defendant, using a way or road through defendant's farm as a foot way, wagon way, carriage way, horseback way, and for hauling produce to and from said Vance's farm, without let or hindrance or obstruction" from the defendant's predecessors in title. The plaintiffs' claim is based on a title by prescription to the road- way on the facts found. ^Easements of all kinds are said to lie in ^rarTt7~c[nd^'"Tiot in livery ; " for the reason that, according to feudal ideas, they could not be created by livery, as livery would destroy the seisin of the owner of the land subject to the easement. But as a right to that which an individual has long used and enjoyed as his own without disturbance has ever been agreeable to a sense of natural justice, the courts of England at an early day adopted the fiction of a lost jeed in support of easements that had been enjoyed by the owner ^f the dominant estate and those under whom he claimed for a period beyond the memory .Qi,jnani__Thiswa.s_first^fi2ced at a time beyond the reign of Richard I. But, by reason of the remoteness of the period, the proof became more and more difficult, if not impossible ; and finally the courts adopted a shorter period of 20 years, in analogy ,to the limitation in possessory actions. Still in this state of the law, as the title rested upon the presumption of a lost deed, the courts held that it might be rebutted, so that long possession still continued subject to this contingency, and might be overthrown by a showing that it com- menced and continued without deed. This, however, is no longer the general doctrine. Washb. Easem. (4th Ed.) 130-135; Railroad Co. v. McFarlan, 43 N. J. Law,_605 ; Tracy v. Atherton, 36 Vt. 503. I Where an easement, as a way, is nowl shown to have been used by an owner of land over the land of an- other for the requisite period, without interruption with all the inci- dents of ownership, the fact of such use is accepted as conclusive prool of the right. The extent of the right is determined by the nature 124 ORIGINAL TITLE3 (Part 1 ^ and extent of the use. It is said : "Every species of prescription by Iwhich property is acquired or lost is founded on the presumption that he who has had a quiet and uninterrupted possession of anything; or a long period of years is supposed to have a just right thereto, ithout which he could not have been suffered to continue so long- in he enjoyment of it." Brown, Inst. 418. This is the principle of the civil law from wh ich title by pr escrip tion is derived. It mUst not be confounded with usucaption, which simply, by the lapse of a short time, cured defects in titles otherwise good. Prescription WAS_ not regarded as a, source of title, buj as a rneans^ of defense against the assertion of an originally superior title^ — one that would have prevailed but for the consideration given to long- time possession. It would seem that this was made available by the magistrate so framing the formula as to confine the inquiry of the judge to the simple question of long-time possession, and this was done by writing the limitation before the intentio. Hence the significance of the term "prescription/' which from its etymology means a writ-^ jn^before. The prescription was inserted for the very purpose of exclii^ng any other inquiry as to the rights of the party claiming thereunder than such as arose from long possession of the land in the character of owner. Sander, Just. Introd. § 104; Hunter, Roman Law, 288; Postes, Gaius, 581. But it is not material on which ground we regard that a right to an easement by prescription rests, — whether on that of a grant pre- sumed from lapse of time, or from the justice and policy of protect- ing one who has long used and enjoyed a right in the character oi^ owner, — the practical result is the same. ' The party so using and en- joying the easement is adjudged as possessing the right in connection with his land as an incident thereto. The substance , then, of a title ] by prescription, whether it relate to the land or an ease ment in it./ is the use and enjoyment of the land, or. the easement, for the requisite! period as an owner. No inquiry beyond this is required. The estabj lishment of the claim, however, necessarily requires proof Jthat the us4 was adverse to the real owner, and lincler a claim of right. Withoiii such proof one could not be said to possess or use as an owner. Nor would the claim be consistent with a case where the possession is taken and held under the license or permission of the real owner. ' But\ in the case of an easement it is not required that the use should be i exclusive of the owner of the servient tenement. The latter may use a way in connection with the owner of the dominant tenement, as the , two uses are consistent; and the owner of the servient tenement may maintain gates thereon where such was his custom during the period of prescription. The use made of the way and the mode of its en-j joyment during this period determines the extent of the right ac-i quired and its limitations. Washb. Easem. 135. These views are'' fully sustained by the authorities cited by counsel for the defendanlj in error. Ch. 2) PEESCRIPTION 125- In this case the finding shows that the use made of the way was a dverse to t heowner oi the land. It prevented him from cultivat- ing it as he might otherwise have done, or from making any use of it inconsistent with the right of way as used. It also appears that it was under a claim of right, as it was used without "let or hindrance" and "without asking leave." | These circumstances are sufficient to show that it was under a claim of right. It is not necessary that it should have been made to appear that the party using the way verbally asserted the right to do so when using it. This may appear from conduct as well as words ; using a way without asking leave imports^ ' a claim of ri ght tO -do-SQ.. It may be stated as a gener al rule , that ' where a person uses a way in the enjoyment of his own land through the land of another, without let or hindrance, for the period of 21 years, in the absence of anything to the contrary, he thereby Acquires a right by prescription to continue the use as an incident to his own land, and which wil l pa55-by_a conveyance jar-iiescent^ of, it. The fact I of the use is open to explanation. It may be shown to have been per- missive. But in such case the burden is upon the owner of the land to show that the use was a permissive one. Garrett v. Jackson, 20 Pa. 331 ; O'Daniel v. O'Daniel, 88 Ky. 185, 10 S. W. 638. If the rule were otherwise, the burden of proof would be placed on the party holding the negative, which is seldom, if ever, done in civil suits ; for it is easier to prove an affirmative than a negative. Such evidence may have been offered, but the court evidently found, in this regard, against the defendant, in finding that it was without "let." The evidence is not incorporated in the record, and the finding must govern the disposition of tlie case. Judgment affirmed. ^** BARBER V. BAILEY. (Supreme Court of Vermont, 1912. 86 Vt. 219, 84 Atl. 608, 44 L. R. A. [N. S.] 98.) Powers, J.^^ The orator owns a piece of land on the northerly side of Pine Street, in the village of Newbury, known as the "Spring House Pasture." The defendant lives in a house which stands just north of this pasture, and has lived there since sometime in 1846. During all this time, he, and tlie members of his family, in going to and from Pine Street and the postoffice, have t aken a "short cut" through the £asture.^ No one has ever objected to this until on December 2, 1908, 'the orator asked the defendant to take and carry away a certain timber which he, the defendant, had used as a bridge over a small brook in 10 See, also, Fleming v. Howard. jnoCal. 28, 87 Pac. 90S (1906); Mitchell v. Bain, 142 Ind. 604, 42 N. E. 2:^0 (l.^^oTT^nittir-Tr Pennington, 122 Ky, 355, 91 S. W. 730, 8 L. R. A. (N. S.) 149 (1906). 11 A portion of the opinion is omitted. A 126 ORIGINAL TITLES (Part 1 the pasture. This the defendant refused to do, and the orator cut the timber in two, and the water floated it away. The defendant sued the orator to recover damages for the loss of the timber, and with this action pending, the orator brought this bill in chancery to enjoin the action at law, to restrain the defendant from crossing the pasture, and for an accounting. A trial was had before the chancellor, who found and filed the facts, and a decree, was tliereupon rendered for the orator. From that decree the defendant appeals. The only ques- tion litigated below was as to the right of the defendant to cross the pasture, a prescriptive right so to do being the defendant's only claim. * * * This brings us to a consideration of the main question in the case : Has the defendant acquired a prescriptive right to cross the orator's pasture? The finding is that for upwards of sixty years the defend- ant and his family have passed through the pasture to and from Pine Street "openly, notoriously and continuously, without interruption." _,^The right to an easement in another's land acquired by long use and enjoyment is analogous to the right acquired by adverse possession; and the rules of law applicable to the two cases are in harmony. Mitchell V. Walker, 2 Aikens, 266, 16 Am. Dec. 710; Tracy v. Ather- ton, 36 Vt. 503. One of the essentials, to the acquisition of §iich a right is that the use shall be adverse, — that is to say, it must be under a claim of right on the ^art of the user. Mitchell v. Walker, supra; Lathrop v. Levam, 83 Vt. \,1\ Atl.'33i ;' Goodall v. Drew, 85 Vt. 408, 82 Atl. 680. So the finding before us lacks one of the elements of a prescription, for, as we have seen, it does not specify whether the de- fendant's use of tlie pasture has been adverse or permissive. Prima facie, the orator being the owner of the pasture, the defendant's acts were mere trespasses^ The burden of proof was on the defendant to establish his prescriptive right, if he had one. Plimpton v. Converse, 42 Vt. 712. And this was so, though the orator may have alleged in liis bill that the defendant had no such riglit. For, though he al- leges more, the orator need only prove that the defendant committed acts which, in the absence of excuse or justification, amounted to a trespass. Bosworth v. Bancroft, 74 Vt. 451, 52 Atl. 1050. Our at- tention is called to the statement in the findings to the eflfect that the defendant never asserted that he crossed the pasture under a claim of right, but this obviously refers to an express assertion, and leaves untouched the effect of the defendant's conduct. I It was not necessary for the defendant to make an express declaratioir of his claim ; it was enough if his use of the way was of such a character as to indicate to the owners of the pasture that it was under a claim of right. Wilder V. Wheeldon, 56 Vt. 344; Jangraw v. Mee, !':> Vt. 211, 54 Atl. 189, 98 Am. St. Rep. 816. In establishing the adverse character of his use of the way, the de- fendant is aided by a presumption, which arises from the fact that the ora'tor and the previous owners knew all about his crossing tlie Ch. 2) PRESCRIPTION 127 pasture and made no effort to prevent it. This made it necessary for the orator to come forward with evidence that the defendant's acts were, in fact, permissive. The rule in such cases was stated by Qiief Judge Redfield in Arbuckle v. Ward, 29 Vt. 43, in these words: f'The mere use, if so open and notorious as obviously to attract the notice of the owner of the soil, or if expressly shown to have come to his knowledge, will prima facie establish the right, and it will be in- cumbent upon the owner to show in some mode, that it was not used under a claim of right to the water, or that he did not so understand it, and was not bound to so regard it from the nature and extent of the use." The same thing was held in Perrin v. Garfield, 2>7 Vt. 304; Dodge V. Stacy, 39 Vt. 558; and in Wilder v. Wheeldon, 56 Vt. 344.. But notwithstanding this presumption, the character of the use re- mains a question of fact, unless the proof and inferences are all one way, Plimpton v. Converse, 42 Vt. 712, and the burden of proof re- mains on the defendant. And here the proof and inferences were not all one way, for there were facts and circumstances shown from which we think it could reasonably be inferred that the defendant's use of the pasture was permissive. The character and situation of the land, the use made of it by the other neighbors, and other circumstances,) indicate, more or less strongly, that t he defen dantl$_use of the_pas- ture was ex gratia and not hostile. This being so, there is nothing for this Court to do but assume, in aid of the decree, that the court of chancery inferred this fact from those found, since without it the de- cree could not stand. In re Braley's Estate, 85 Vt. 351, 82 Atl. 5; Whitehead v. Whitehead. 84 Vt. 321. 79 Atl. 516; Perkins & Co. v. Perley, 82 Vt. 524, 74 Atl. 231; Van Dyke v. Cole, 81 Vt. 379, 70 Atl. 593, 1103; Davenport v. Crowell, 79 Vt. 419, 65 Atl. 557; Sowles V. St. Albans, 71 Vt. 418. 45 Atl. 1050; Russell v. Davis, 69 Vt. 275, 37 Atl. 746; Perrin v. Garfield, 37 Vt. 304. This is just what the Court did in the case last cited, except that it was there necessary in support of the judgment to assume that the court below inferred that the use was hostile instead of permissive. We reahze that it is a serious matter to interfere with privileges en- j oyed fo r more than sixty years, but it must not be forgotten that this ^ourt s its in error only, and must deal with a record according to the establislie3_]riiles of law, and without regard to its own notion^ of the meri ts^ of the_ controversy^. * * * Decree affirme d and cause remanded.^' 12 See, also, Bradley's Fi.sh Co. v, Dudley. 37 Conn. 130 (1870); Shea v. Gavitt. S9 Conn. .^.jO. r>4> Atl. P.CO, L. R. A. lOlfiA, GS9 (11)1.5); Chicago, B. & Q. R. Co. V. Ives. 202 111. 00. GO N. E. 940 (lOD.S) ; Bniner (Jranitoid Co. v. Glencoe Lime & Cement Co., IGO Mo. App. 2'.).',, I;j2 S. W. GOl (1912): Moll v. Hagerbaumer, 97 Neb. S09, 151 N. W. 300 (1915); Id., 98 Neb. 555, 153 N. W. 560 (1915). Land entirely surrounded by other lands of the grantor was conveyed to A., who for more than twenty years made open use of a convenient way from the highway to his land over the land of the grantor. A. then buys a tract 128 ORIGINAL TITLES (Part 1 LECHMAN V. MILLS. (Supreme Court of Washington, 1907. 46 Wash. 624, 91 Pac. 11, 13 L. R. A. [N. S.] 990, 13 Ann. Cas. 923.) HadlEy, C. J. This action was brought to enjoin tlie defendants from keeping* and maintaining a canal on and across certain lands which the plaintiff claims to own, and also from overflowing with wa- ter any portion of said lands by means of said canal together with dams or dikes. Following largely the order of statement found in the brief of respondents, we believe the following is a fair statement of thejacts in the case: In the year 1879 one Briggs was the occupant, but not the owner, of the land over which thii" controversy exists, and which land the plaintiff now claims to own. At that time it was be- lieved the land would be included within the limits of the grant to the Northern Pacific Railway Company when those limits should be determined by the adoption of the line of definite location of the road, such adoption not then having been made. Briggs expected to purchase the land from the railroad company as soon as the latter acquired the title and was in position to make a sale and conveyance. But the land was then a part of the public domain, and Briggs was a mere occupant. While such was the situation, Mr. Mills, one of the defendants in this action, constructed a water ditch and pond on part of said land to serve the purposes of power for the operation of a sawmill. The ditch led from the Yakima river down to a depression upon the land now claimed by the plaintiff, and by means of dikes and dams, together with the natural topography of the ground, the water was impounded in a lake or pond, a part of the land so flood- ed being a part of the land now claimed by the plaintiff. The lower end of the pond was upon land owned by Mills, and the water which flowed into the pond was released through an outlet upon the land of Mills. Mills also constructed a sawmill, and the water so im- pounded developed the power for the operation of the mill. Prior to the construction of the ditch, reservoir, and mill, said Mills entered intp^an agreement with Briggs, the real nature of which is in issue. , 'The plaintiff contends that it was a mere permission or revocable license to Mills to construct and maintain the ditch and res- i ervoir. The defendants contend, and the trial court found, that it was la verbal grant from Briggs to Mills of the right to construct and \maintain said works upon the land. It is not disputed that Briggs at |that time, and as a part of the agreement, undertook and promised to execute a deed as soon as he should obtain title from the railroad of land over which he may reach another highway. Does he still have a right to use the first way? Suppose that for more than twenty years after . his purchase of the second tract he continued to use the old way as before. Is the situation any different? See Ann Arbor Fruit & Vinegar Co. v. Ann Arbor R. Co., 136 Mich. 599, 99 N. W. 869, 66 L. R. A. 431 (1904). Ch. 2) PRESCRIPTION 129 company. But the plaintiff claims that Briggs, in making the agree- ment, did not intend to give a deed without first being paid a fur- ther consideration in money, no amount being stated but the amount to be subsequently fixed by further agreement. The defendants con- tend that this verbal agreement contemplated, so far as a verbal agree- ment could, an absolute and perpetual grant. Mills has continued to operate his sawmill by means of the water so stored from the time of said construction up to the present time. In 1882 he granted to Hutch- inson and Dreisner a one-half interest in the said power for the pur- pose of operating a flour mill, which was then by them erected. The said flour mill, together with the said conveyed interest in the water power, has by mesne conveyances passed to the defendants Kendall and Mack. The Northern Pacific Railway Company deeded the land to Briggs in J88?7 and he continued to own and occupy all of the land except tTiat occupied by the canal and reservoir, until October, 1898. During all of said time the defendants and their predecessors in interest continued to maintain the canal and reser\oir, and to im- pound the water therein, and to utilize the power for the operation of said mill plants. In October, 1898, Briggs executed to the Sullivan Savings Institution an instrument in the form of a deed purportmg to convey to said grantee the title to said land. The plaintiff derives his. title through said Sullivan Savings Institutjon. This action was brought In January, 1906, to enjoin the defendants7as aforesaid, from further maintaining the ditch and reservoir. The cause was tried before the court without a jury, and judgment was rendered for the defendants, to the effect that they have a perpetual easement against the plaintiff and all persons claiming or to claim through or under h im? The pl ainirflThas appealed. ^ ^Tinding Na 2, as entered by the court, is as follows: "That just prior to the construction of said works the said defendant Mills en- tered into an agreement with one Wilkin Briggs, who was then the occupant of the land hereinabove described which land is claimed by the plaintiff, wherein and whereby the said Mills undertook and agreed to construct said canal, dams, reservoir and sawmill, and the said Wilkin Briggs, in consideration of said undertaking and agree- ment of said J. L. Mills, gave and granted to said J. L. Mills verbally a perpetual right of way over and upon said land for said canal, ditch and reservoir, together with the right to construct and forever maintain said canal, ditch, reservoir and dams upon said land and to convey said water through said ditch or canal into said reservoir and to impound said water in said reservoir and overflow the and occupied by said reservoir in order to make the required head of water for the operation of the mills that were to be run by said power. That at that time the said Wilkin Briggs had no title to the land now claimed by the plaintiff but the same was then a part of the public domain of the United States, but it was then sup- Aig.Pbop. — ^9 130 ORIGINAL TITLES (Part 1 posed that the same would be included within or covered by the land grant to the Northern Pacific Railroad Company as soon as the route of said company's railroad should be definitely located through said county, and the said Wilkin Briggs then expected to eventually pur- chase said land from said company. And at the time of said verbal agreement between the said Wilkin Briggs and the said J. L. Mills the said Briggs verbally agreed to execute and deliver to the said J. L. Mills a deed evidencing said grant of said right of way and easement upon the demand of said J, L. Mills as soon as the said Briggs him- self received a deed to said land ; and the said Briggs then and there waived any and all other or further compensation on account of the construction and maintenance of said works and for the overflowing of said land." It was further found that Mills thereafter constructed said works and sawmill and entered into the enjoyment of the easement and of the rights thus verbally granted to him, openly, notoriously, and adversely as against Briggs and all other persons, under claim of right, and with the full knowledge and acquiescence of Briggs ; that all of said construction was made in reliance upon, and on the faith of, the ease- ment so granted and of the right to construct and perpetually main- tain said works and conduct water through said canal and impound the same, at an expense of $10,000, all of which was known to Briggs who, during all the time of his occupancy acquiesced in the claim of Mills and never disputed or denied it; that the grantees of Mills, who held the flouring-mill power, in like manner relied upon the right to perpetually use said water and power and perpetually maintain the reservoir, and by reason thereof they constructed their flour mill at an expense of $8,000, all of which was known to Briggs during the time of his occupancy and claim of title to any of said land, and he never denied or disputed said rights, but always acquiesced therein. Errors are assigned upon the findings, but we think they are sustained by the evidence. The findings establish that the agreement made by Briggs with Mills was not a mere revocable license or permission to occupy, but that it was intended to operate as a grant to be confirmed by deed when Briggs acquired the title so that he could convey it. We believe it is unnec- essary to discuss the testimony in detail, since we are satisfied that it establishes _the intention to make an absolute grant, the. consideration of which was the construction and operation of the mill at that place. The use of the premises was thus initiated, and it continued uninter- ruptedly for more than twenty-five years, until this suit was brought. Such use must now be presumed to have been adverse, unless it is explained to have been otherwise. "Where the use of an easement has continued for the prescriptive -^ period unexplained, it will be presumed to have been adverse, unless it is of such a character, or the circumstances attending it are such. Ch. 2) PRESCRIPTION 131 as to show that it was a mere privilege enjoyed by leave of the land- owner." 22 Am. & Eng. Ency. Law (2d Ed.) p. 1202. Moreover, the use was not deprived of its adverse character or rendered merely per- missive for the purposes of the statute of limitations by a showing that it was preceded by an oral agreement amounting in terms to a grant, but void under the statute of limitations. "It is generally agreed that use of an easement under claim of right by virtue of a parol grant, may be adverse so as to give a title by prescription, although the parol grant itself is void under the statute of frauds." 22 Am. & Eng. Ency. Law (2d Ed.) p. 1198, and cases cited. The following from the opinion in Covcnton v. Seufert, 23 Or. 548, 32 Pac. 508, may also be set forth as pertinent to this subject: "An easement cannot be granted by parol; yet, if Mr. Simpson purchased from Mr. Jackson the right to use the ditch, and used the same for ten years, and such use was acquiesced in by Mr. Jackson and his grantees, it would be such an exercise of the easement, under a claim of right, as to give a prescriptive right to the same. It is no objection to_granting an easement by prescription that the same was originally granted or bargained for by parol. That the use began by permis- sion does not affect the prescriptive right, if it has been used and exercised for the requisite period under a claim of right on the part of Mr. Simpson and his heirs, and their grantees. If the use of a way is under a parol consent given by the owner of the servient tenement to use it as if it were legally conveyed, it is a use as of right : Gould, Wa- ters, § 338; Washburn, Easem. (2d Ed.) 127. The plaintiffs have used the ditch as if it had been legally conveyed to them, that is, they have exercised such acts of ownership over it as a man would over his own property, — and the court must presume, in the absence of any evidence to the contrary, that the settlement was a parol consent or transfer by Mr. Jackson to Mr. Simpson of the right to use the ditch, and hence it was a use as of right." The facts in this case clearly show a continuous adverse use by re- spondents ami their grantors under claim of right for more than a quarter of a century. This estajjlishes their title by prescription^ and we find it unnecessary to discuss other reasons suggested in support of their title. * * * is The judgment is affirmed. 13 The remainder of the opinion relating to another point Is omitted. 132 ORIGINAL TITLTES (Part 1 LEHIGH VALLEY R. CO. v. McFARLAN. (Court of Errors and Appeals of New Jersey, ISSl. 43 N. J. Law, 605.) Depue:, J.^* The d efendant is tlie lessee of the Morri!> C anal and Banking Company . In 18/1, the property, works and franchises of the latter compaiiy were granted to the defendant by a pprpp^iif|] jpn^p, under the authority of an act of the legislature. Pamph. L. 1871, p. 444. The lessor was i ncorporated in 1824, for the purpose of construc t- in g a canal to unite the river Delaware, near Easton, with the tid e waters of the Passaic. Pamph. L. 1824, p, 158. The canal was con- structed from the Delaware to the Passaic about 1830. In 1845 it was enlarged throughout its entire length to provide for navigation with boats of greater capacity. In 1857 the compan y renewed j jie timbers in its dam across the Rockaway river, and placed new flash boards upon it. In 1875 the flash boards were replaced by timbers firmly spiked on the top of the dam, and made part of its permanent struc- ture. The plaiaiif£.i s the owner of a mill situate on the Rockawav rive r, a bove tJTe site of the dam. Pie complains of an injui*y to his mill by back water cast back upon it by means of the dam. The damages claimed are such as accrued between the 30th of December, 1876, and the 22d of September, 1877. As his declaration was originally framed, the t heory of his action was that the dam at its increased height w as a ri unlaw ful '^i-m^tnrp At the trial the declaration was so amended as to present a claim for compensation for the damages sustained by the plaintiff between the days named, conceding that the canal company by its charter had power to take and appropriate to its use, lands and water, without compensation first made, and that therefore the dam was not, in itself, an unlawful structure. * * * The dp/^TT g&P^^ ^so contended at the trial that tlie righ^to mainta in i ts dam at its present height had been acquired bv adverse emovmen t. 1 1 the defendant, or tlie canal company, under whom it claims, has ac- quired the right in dispute by pr^^cJ;^^J^io^^Jhe subject already discussed becomes of no importance in this litigation. It will be necessary, there- fore, to examine the instructions of the judge on this head. (' The instruction -was, in substance and effect, t hat mere verbal pr o- t ests and denial of the right, without any interruption or ohstmrt ion i n fact, of the enjoyment of tlie right, would prevent the acquisition o f~an easement by adverse use r. This instruction follows the opinion oFthe Vice-Chancellor, in Lehigh Valley R. R. Co. v. McFarlan, 30 N. J. Eq. 180. * * * 14 That portion of the opinion relating to the plaintiff's claim to compen- sation, in which the court concluded the plaintiff was so entitl«»d, is omitted. Other parts of the opinion also are omitted. Ch.2) PRESCRIPTION 133 The ow ner of the servient tenement cannot overcome tlie presum p- ti on of right ansingy from an uninterrupted user nf twenty y ears, by pro of that no grant was in fact, made . He may rebut the presumption by contradicting or explaining the facts upon which it rests ; but he cannot overcome it by proof in denial of a grant. He may show that the right claimed is one that could not be granted away, or that the owner of the servient tenement was legally inrapahle of making, nr the owner of the dominant tenement i ncapable of receiving , such a grant. Rochdale Canal v. Radcliffe, 18 Q. B. 287 ; Ellwell v. Birmingham Ca- nal, 3 H. of L. 812; Staffordshire Canal v. Birmingham Canal, L. R. 1 H. of L. 254; Thorpe v. Corwin, Spenc. 312. He may explain the user or enjoyment by showing that it was under permission asked and grant- ed ; or that it was secret and without means of knowledge on his part ; or that the user was such as to be neither physically capable of pre- vention nor actionable. Chasemore v. Richards, 7 H. of L. Cas. 349 ; Webb V. Bird, 13 C. B. (N. S.) 841 ; s. c, 10 C. B. (N. S.) 268; Sturges V. Bridgman, 11 Ch, Div. 852. But if there be neither legal incomp e- t ency nor physical incapacity^ and the user be open and notorious, and be suc h a s to be actionable or capable of prevention by the servien t owner, he can on ly defeat the .aff i ui-^ition of t he rif ; ht on the ground of the enjoyment was that the u st^ w-as r;pntcntious, o r the continuity interruj3 ted_ d iiring th^ peri od qt presc r iption . In defining title by prescription, Sir Edward Coke says, both to cus- toms and prescriptions, these two things are incidents inseparable, viz., po ssession or usage and time. Possession must have these qualities: It must be long, c ontinual and peaceable ; long, that is, during the time defined by law ; continuous, that is, that it may not have been lawfully interrupted; peaceable, because if it be contentious and the opposition be on good grounds, the party will be in the same condition as at the beginning of his enjoyment. Co. Lit. 113 b. By a long course of de- cision, the word "interrupted," when applied to acts done by the ser- vient owner, has received a fixed meaning as indicating an obstructio n to the use of the easement, some act of interference with its enjoymen t, which, if unjustifiable, would be an actionable wrong. This meaning has been given to tlie word as used in the statute 2 and 3 William IV, (Parke, B., in Olney v. Gardner, 4 M. & W. 495,) and is its usual signifi- cation. Sir Edward Coke gives no illustration of what was meant by conten- tious, except "opposition on good grounds," and by a quotation from Bracton, who wrote in a primitive era of English law, before the doc- trine of prescription, as applied to incorporeal hereditaments, had been subjected to the formative processes of judicial expositions from which the present state of the law is derived. The expression "opposition on g ood grounds" im p lies an act which would afford an opportunity to su b- niit its validity to the test of judicial decision, and is more consistent with the idea of an interference with the enjoyment of the right, such as would give the owner ability to go into court and establish his right. yh 134 ORIGINAL TITLES (Part 1 than with the supposition that prescriptive rights should he forever kept in abeyance by acts which gave persons claiming them, no power by suit at law to establish the right. In the passage quoted by Coke from Bracton, this early writer says : "I use the term peaceable, because if it be contentious, it will be the same as before, if the contention has been just; as if the true lord forthwith, when the intruder or disseizor has entered into seizin, endeavors soon and without delay (if he should be present, or if absent when he shall have returned) to repel and expel such persons by violence, although he cannot carry out to its effect what he has commenced, provided, however, when he fails he is diligent in requesting and in pursuing." Bract, fols. 51, 52. Mr. Goddard, in dis- cussing an enjoyment which is not peaceable, defines "vi" in the phrase "vi clam aut precario," to mean violence or force and strife, or con- tention of any kind; and the illustration he gives is where the enjoy- ment has been during a period of litigation about the right claimed, or the user has been continually interrupted by physical obstacles placed with a view of rendering user impracticable. Goddard on Eas. 172. In the English cases, pcacefulness and acquiescence (when the servient owner knows or might have known that a right is claimed against his jiiterest) are used indifferently as equivalent to uninterrupted. |n this country several decisions have been referred to as hold ing t hat prohibitions, remonstrances and denials of the right by thr '^wn er o ^the servient tenement, unaccompa nied by any act o f interferen ce w ith the eniovment of the easement, will prevent the acquisitionof th e tight. _ T hese cases are a legitimate outcome of the doctrine that the presumption is not a presumption juris et de jure, but is a presumption merely, liable to be rebutted by the proof of circumstances overcoming the presumption of a grant. This doctrine is supposed to have its chief support in Powell v. Bagg, 8 Gray (Mass.) 441, 69 Am. Dec. 262. In Powell V. Bagg, proof that the owner, when on the land, forbade the party claiming an easement of the flow of water over his premises to enter, and ordered him off, while there for the purpose of repairing the acqueduct, was adjudged to be competent evidence of an interrup- tion and an instruction that words, however strongly denying the right claimed or forbidding its exercise unaccompanied by any act or deed, was not an interruption of the user or enjoyment, was held,. to be de- fective and tended to mislead the jury. The evidence before-the.trial court is not fully reported. Evidence that the owner of the land for- bade the other party to enter, and ordered him off, was undoubtedly competent as part of the plaintiff's case. Whether what occurred at th ^t time would amount to an interruption oTt he easement, would de- p end upon circumstances, upon the conduct o t th e party when torb id- d en to enter or wlien ordered off. Lf the owner nf fhp ':;prvipn<- tpnp- ment, being on the premises, forbids tlie owner of the easement to enter for the purpose of enjoying it and orders him off, and the latter, on a well-grounded apprehension that the former means to enforce obedience to his commands, desists and withdraws, an action on the Ch. 2) PRESCRIPTION 135 case for disturbance of the right would lie. This view must have been present in the mind of the court, else why restrict the prohibition to place — on the land? To give certainty to the owner's purpose? A pro- hibition delivered elsewhere might be so vehement and emphatic as to leave the denial of tlie" right equally beyond a doubt. On any other view of the case, as was said in C. & N. W. R. R. Co. v^JHijag, 90 111. 340, rt he circumstances of the place where the forbiddance was rn ade, whethel" on or off the land, would be immaterial." If f acts such_^ as are above indicated, appeared in the case, the charge was, in the language of the court, "defective, and tended to mislead the jury in applying the evidence to the rule of law upon which the title of the de- fendant to the easement rested." Certain expressions from the opinion have been quoted as indicating that a verbal denial of the right will operate, ipso facto, to determine the right. If that view be adopted, or the suggestion of Mr. Justice Woodbury, (3 Woodb. & M. 551,) that complaints and the taking of counsel against such encroachments will bar the right, be followed, it is obvious that rights by prescription will be of little value. None of the authorities cited by the learned judge in Powell v. Bagg, goes to the extent contended for. The passage quoted from Bracton, [that an easement will be acquired by its exercise under a claim of right per patientiam veri domini qui scivit et non prohibuit sed permisit de consensu tacito, is followed by the comment that sufferance is taken for consent, and th ai: if the lord of the property, through sufferanc e, h as, when present and knowing the fact, allowed his neighbor to en toy on his estate a servitude for a long time pcaccablv and without interrup- t ion from such enjoyment nnrl t;iiffer;mrp, t here is a presumption. of consent and willingness. Bract, lib. 2, c. 23, § 1. fin the passage re-| ferred to in Greenleaf, the language is that the user must be adverse — \ that is, under a claim of title — with the knowledge and acquiescence of\ the owner of the land, and uninterrupted. 2^Greenl. Ev. § 539. In j Sargent v. Ballard, 9 Pick. (Mass.) 254, 255, Weld, J., in discussing the methods by which a claim of title by prescription may be controverted by disproving the qualities and ingredients of such a title, says that "ev idence_piigbt be q-iven to prove that the use had bee n interrupt ed, th erebv disproving a COn tJn'T^^I nrgniV^rprirp nf | )ip owner fnr tvypnty y ears." I n Arnold v. Stevens, 24 Pick. (Mass.) 112, 35 Am. Dec. 305, the plaintiffs' claim was of a right to dj^ore, under a grant by deed. They had not exercised the riglTt for forty years. In the meantime the owner had occupied and cultivated the surface of the land. The court held that there was no enjoyment hostile to the easement, for the owner of the land had done "nothing adverse to the rights of the owners of the easement — nothing to which they could object, or which would ap- prise them of the existence of any hostile claim, and no acquiescence, therefore, existed from which a conveyance could be presumed." In Monmouthshire Canal Co. v. Harford, 1 C., M. & R. 614, evidence was given of applications made on behalf of the claimants of the ease- 136 ORIGINAL TITLES (Part 1 ment for permission to exercise tiie right. The court held that permis sion asked for and received was admissible to show that the enjoyment was not of right nor continuous and uninterrupted, for " every time, t he occupiers asked for leave they admi tted t hat the former license had ex- ]) ircd, an"crthat the continuance of the enjoyment was brokeri? ^ In nei- tlTer of these cases was the effect of verbal remonstrances or com- plaints, as evidence of an interruption of enjoyment, considered. Nor do the additional English cases cited by plaintiff's counsel in his brief meet the point under consideration. In Livett v. Wilson, 3 Bing. 115, it is stated in the report that "as to undisputed use of the way there was conflicting testimony, but the weight of the evidence showed that the alleged right had been pretty constantly contested, and the de- fendant, upon recently taking some adjoining premises, the approach to which by the entrance he claimed into the yard, said 'my right of way from the street to the yard can now no longer be resisted.' " The character of the acts of resistance does not appear in the report of the case, either in 3 Bing. or in 10 Moore — whether they were verbal com- plaints or physical resistance. I do not find in either report of the case any warrant for the assertion of Tucker, P., (Xichols v. Aylor, 7 Leigh [Va.] 565,) that "repeated complaints and denials of the title of his ad- versary were considered as sufficiently rebutting the presumption of a grant." The only pertinency this case has to the subject now consid- ered, arises from the manner in which the case was left to the jury. The judge left to the jury to find whether or not the right had been granted by deed, instead of submitting to them the questions of fact upon which the law presumes a grant. I agree that, if the issue upon such a claim of right is whether a deed in fact has been made, proof of verbal complaints on or olt the locus in quo, as well as proof tliat no deed in fact was made during the continuance of the user, would be admissible and competent evidence; and such evidence would gen- erally determine the issup. But this method of leaving the question to juries has been condemned by the English courts, and is at variance with the doctrine generally received by the courts of this country. In Olney v. Gardner, 4 M. & W. 495, the decision was that, where there was unity of possession of the dominant and servient tenements, the time during which such possession was continued must not only be excluded in the computation of the twenty years, but destroyed alto- gether the effect of the previous possession by breaking the continuity of enjoyment. In Bright v. Walker, 1 C, M. & R. 211, it was held tha t, a s against the reversioner, the enjoyment of an easemenfduring a t en- ancy for life was not to be recK'oned as part of the prescriptive per iod. "Eaton V. Swansea Water Works, 17 O. B. 267, was an action for dis- turbance of a water-course claimed by adverse user. The court held that interruptions, though not acquiesced in for a year under statute 2 and 3 William IV, might show that the enjoyment was never of right, but was contentious throughout; and there being evidence that the owner of the servient tenement was in the habit of stopping up the Ch. 2) PRESCRIPTION 137 trench whenever it was made, the neglect of the judge to answer a ques- tion propounded by a juror as to what would be the effect in law of a state of perpetual warfare between the parties was not a satisfactory method of leaving the case to the jury. In Tickle v. Brown, 4 A. & E. 369, it was held that the words "enjoyed by any person claiming a right," and "enjoyment thereof as of right," in the statute, meant an enjoyment had not secretly, or by stealth, or by tacit suffer- ance, or by permission asked from time to time on each occasion or on many, and that, therefore, p roof of a parol license was competent to show tha^ the enjoyment was permissive, ?^nd not und fr ^ rlnini-rii. r jglit . 'I'lie other two English cases referred to (Benneson v. Cartright, 5 ir& S. 1 ; Glover v. Coleman, L. R. 10 C. P. 108) were simply inter- pretations of section 4 of the statute 2 and 3 William IV, and are not authorities with respect to the principles upon which prescriptive rights are acquired or prevented at common law. In each of the cases there was an actual physical obstruction of the user, and these cases turned upon the meaning of the words "submitted to or acquiesced in," con- tained in section 4, which provided that no act or matter should be deemed an interruption unless it should have been submitted to or ac- quiesced in for one year. Mr. Goddard, writing after all these cases were decided, in his excellent treatise, says: "It is commonly said that no easement can be acquired by prescription if the user has been en- joyed vi clam aut precario. The word vi does not simply mean by vio- lence or force, but it means also by strife or contention of any kind — as, for instance, that the enjoyment has been during a period of litiga- tion about the right claimed, or that the user has been continually dis- puted and interrupted by physical obstacles placed with a view of ren- dering the user impracticable." Goddard on Eas. 172. r 1 have not discovered in the English cases any intimation that mere j denials of the right, complaints, remonstrances, or prohibitions of user, I will be considered interruptions of the user of an easement, or as indi- I eating that the enjoyment of it was contentious. On the contrary, whenever the subject has been mentioned, it has elicited expressions _oi-+riarked disapprobation of such a proposition. This is conspicuously apparent in the opinions of Bayley, J., in Cross v. Lewis, 2 B. & C. 689; of Lush, J., in Angus v. Dalton, 3 Q. B. D. 85 ; and of Thesigcr and Cotton, Lords Justices, in the same case, as reported in 4 Q. B. D. 172, 186. Thesiger, L. J., in considering the nature of the evidence which shall contradict, explain or rebut the presumption of right arising from an uninterrupted possession of twenty years, says that it is "not suffi- cient to prove such circumstances as negative an actual assent on the part of the servient owner, or even evidence of dissent short of actual interruption or obstruction to the enjoyment." In Angus v. Dalton, the easement was not such as came within the statute 2 and 3 William IV ; and the case was discussed and decided upon the principles of the com- mon law, independently of the statutory provision. Some confusion on the subject has arisen from the failure to discrim- 138 ORIGINAL TITLES (Part 1 inate between negative and affirmative easements ; negative easements, such as easements of light, and of the lateral support of buildings, which cannot lawfully be interrupted except by acts done upon the servient tenement; and affirmative easements, such as ways and the overflowing of lands by water, which are direct interferences with the enjoyment b}? the servient owner of the premises, and may be the sub- ject of legal proceedings as well as of physical interruption. This dis- tinction is pointed out by the court in Sturges v. Bridgman, 11 Ch.-&r-^ 852. In Angus v. Dalton, the Queen's Bench decided that the negative easement of lateral support of buildings could not be acquired by pre- scription, for the reason that the owner of the adjoining premises had no power to oppose the erection of the building and no reasonable means of resisting or preventing the enjoyment of its lateral support from his adjoining lands. But this decision was overruled in the Court of Appeals. Angus v. Dalton, 3 Q. B. D. 85, 4 Q. B. D. 162. With respect to such an easement there is great force of reasoning in the con- tention that slight acts of dissent should avail to defeat the acquisition of a right ; for it would be unreasonable to compel the owner of the adjoining lands to dig down and undermine the foundations or to put him to legal proceedings quia timet to preserve dominion over his prop- erty. But no such considerations of hardship or inconvenience exist when the easement is a right of vvay, which, whenever the right is ex- ercised, is a palpable invasion of property and may easily be obstructed, or is an easement of flooding lands, which is really, though not techni- cally, a disseizin pro tanto, and can easily be interrupted. ^ VThe whole doctrine of prescription is founded on public polic y. J It is a matter of public interest that title to property should not long re- main uncertain and in dispute. The doctrine of prescription conduces, in that respect, to the interest of society, and at the same time is pro- motive of private jiistice by putting an end to and fi.xinga limit t o^con ^ tention and strife. ICrQte&ts and m ere den ials of right are evidence^ that the right is in dispute, as distinguished from a contested right, li such protests and denials, unaccompanie dby anact which in law arnnijptQ to a flUtnrhnni'P nnri ic actionable nSSU c HTISe'permittcd tO pUt the i:ig4it in nheyr mce. the policy of the law wil l be defeated, and pre- scriptive rights be_2la££d- UPon the most unst able nf fnu ndntinrm. Sup- pose an easement is enjoyed, sa}', for thirty years. If after such continuance of enjoyment the right may be overthrown by proof of pro- tests and mere denials of the right, uttered at soniejxniQte but service- able time during that period, it is manifest that a right held by so un- certain 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 tlie facts have faded from recollection, he has his own folly and supineness to which to lay the blame. Bii^_if_Ji^_in£j:£_4)ro- tests and denia ls-l:m his adversary, his righ t_niight be ^efgatgdJiejYQiild be_£lacedat_an un conscion able -disadvantage. He could neither sue Ch.2) PEESCRIPTION 139 and establish his right, nor could he have the advantage usually derived from long enjoyment in quieting titles. P rotests and remonstrances bv the owner of the servient tenemen t ag ainst the use of the easement, rather add to tlie streng^th of the claim " o f"a"prescriptive right; fpr^ holdin g in defij nc^_Qf_sucli_e>Lpxnstn1;itinns' isjdemonstrative^PX Qof that th ejmjoyT-nent is under a claim of right, fi ostjTe^d adverse ; and if they be not accompanied by acts amounting t o a disturbance of the right in a legal s e nse, they are no interruptio n or obstruction of the enjoyment . The instructions of the judge were erroneous in this respect. Th e j ur y^ should have be en told that a continuous enjoyment under a claim o f right ior twenty years, not obstructed by some suable act, and ha v- x/^,^iXx.omlJ i n ^the other qualities ot an adverse user, confers an indcteasible righ t . It is said that the instruction was given in view of evidence tending to show interruptions in fact of the right, and therefore the error was harmless. As the judgment will be reversed on other grounds, and the case may be retried, we prefer not to discuss the evidence at this time. On the two exceptions considered here, we think the judgment should be reversed. * * * 15 ^^nyxuyf^ ir-Dennith v. Annv(>-. 00 Ta. 1^1 (1.«:T0); Jordnn v. Lan?, 22 S. C. 159 (1,S85); Kiiiil)iill v. I.ndd, 42 Vt. 747 (1S70). ace. Chicago & N. W. R. Co. V. Iloat,'. 00 III. .T'.n (1S7S) : Crosier v. I?ro\vii, Cf, W. Va. 27.".. Q5 S. E. r>20, 25 L. R. A. (N. S.) 174 (1000); Roid v. Cnnictt, 101 Va. 47. 4.". S. E. 1S2 (100.3), contra. See Andrics v. Detroit, (J. II. & M. R. Co., 10.") Mirli. r">7, (J.3 N. W. 52(; (ISO-.t; Rollins v. Blackdcii. 112 Me. 4."0. 02 Atl. .'.21 (1014). I n som e s tates there arc s tatntes pnn i(]iiif thiit c ertiiin r 'ofi<-i'v; sli-ill itinrnnr rii ijim- i n^ of a tirescij jmvQ r{,,7 s;tims:nn'a Am. St Law, § 2204. V\s to the olfeT-t of a fence hnilt or attempted to be built across way claim- ed hv prescrii)tion as intermiition of user, see Rrayden v. New York, N. H. & H. R. R. Co.. 172 Mass. 22."). .".1 N. E. 1081 (1808), and Connor v. Sullivan, 4 Conn! 2G 16 Am. Rep. 10 (187:'.). CJ^ac KiN(i7V A., in connection with his use of Blackacre, had for five years used adversely a way over B.'s land; A. then conveyed Blackacre to C, "with the aiipurtenances." and C. continued siic li ;i(]v"r>-o iw^ f^| ir the bn lanee of t he nre.scrjptive period^ Has C. acnuired the easement by prescript ion? ^Vhat wouIlI be the result If the words "with the api)urtenances' we re omitted? What If C. were A.'s heir, and as such succeeded to A.'s rights in Blackacre? See Leonard v. Leonard, 7 Allen (Mass.) 2l1 (18U3). A^-o-^ -^^-'v^^^o-'— «kX XL dl-t{,<^u^ Ir^ you --^^J— ^ 140 ORIGINAL TITLE3 (Part 1 CHAPTER III ^0^ ACCRETION A^ i-'^ X^rjT GIFFORD v. YARBOROUGH. ^^ (House of Lords, 1S28. 5 Biug. 163.) Best, C. J. My Lords, the question which your Lordships have ^ proposed for the opinion of the Judges is as follows: " A. is seised in hjsdcmesne as of fee of the manor of N., and of the demesne lands thereof, which said demesne lands were f ormerly bounded on one side by tlie sea . A certain piece of land, consisting of about 450 acres, by the slow , g raduaL -and i mperceptible projection^ lluvion subsidence, and accretion of ooze, soil, sand, and matter slowly, gradually, and imperceptibly, and by imperceptible increase in long time ca^t up, de- posited, 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 h ath been formed, and hath settled, grown, and accru ed u pon, and against, and unto tlie said demesne lam lZ Does such piece of land so formed, settled, grown, and accrued as aforesaid, belong to tlie 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 be- long to tlie crown, but to the owner of the demesne land. All the writers on the law of England agree in thisi/^iat as the King is lord of the sea tliat flows around our coasts, and also owner of all the land to which no individual has acquired a right by occupation and improvement, the soil tliat was once covered by the sea belongs to him. B ut this right of the sovereign might, in particular places, or. un der c ircumstances, m all places near the sea, be transferred to crrfnin nf his subjects by law. A law giving such rights may be presumed from either a local or general custom, such custom being reasonable,' and 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. G eneral customs were in ancient times stated in the plcadin.s^s of those wno claimed under them : as the custom o^^merchants, the cus- tonis oi the realm with reference to innkeepers Shd catriers, and oth- ers 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 141 Q^ 3) ACCEETION of their existence; they are considered as adopted into the common law and as such are recognized by the Judges without any evidence. These are called customs, because they only apply to particular de- scriptions 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 parlia- ment applicable to all merchants, or to the whole body of the clergy, is to be regarded by tlie Judges as a public act. I f there is a custom regulating the right of the owners of all laiu ls^ bordering on th e sea, it is so general a custon i as need not be set mit in Ui e pleac lin.gs^o77f3ved by evidence, but will be taken notice ot by the Tud-es as part of the common law. /We think there is^ a custom by which lands from which the sea is j^raduaUy and imperceptibly re- moved by the alluvion of soil, becomes the property ot the person to / ^ whose land it is attached, although it has been in the fundus mans, and V^^^^^^^^ as such the property of the King. Sjich a custom is reasonably ^^ re- |^- ^ wh^TTh TcITkc was ereckil , and that the change in the channel was^f^^,^ ^^ ^ve. caused by ar tificial means used by Jacob :\IcCormick," the original de- fendant, as above indicated. He therefore ordered jud^g njjrTlt for the and we cannot help thinking this is somewhat so as to the right of a riparian owner to accretions and relictions in front of his land. The reasons usually given for the mle are either that it falls within the maxim. (Je^unnimi.s lex non curak or that because the riparian owner is liable to lose soil by the ac- tioli or encroachment of the water, he should also have the beneht of any land gained bv the same action. But it seems to us that the rule rests upon a much' broader principle, and has a much more important purpose in view, viz ^^ A to ni eserve the fund ai nnntm rinnrinu riu-ht^ n which all others depend, and ^U(r^%^ ^ t er" LiiinVu'ev v. biaic. ' )!! Minn. LSI, 'jW ^. \^ ■ H---*. 1'^ I^- I^- ^- *^".^^' ;' ! ^^^ sTliep. 541 (iso;!), per Mitchell, J. See also Lovingston v. St. Clair County. 64* 111. 5G. 58, 16 Am. Rep. 516 (1872). Aig.Pbop. — 10 146 ORIGINAL TITLES (Part 1 defendant s, which was affirmed at general term in the sixth district, and the plaintiff appealed to this court. Pratt, J. It was settled by this court, when this cause was before it upon a former occasion, that the pl aintiff's south line did not orig i- na lly extend to the centre of the rrp^k, hut only to thpjm e of low w a- t er on the north ban k. Assuming this to be settled, tlie plaintiff does not claim that as the creek originally ran, the land in dispute was em- braced within the boundaries of his lot. But if I understand it, he laims that the land in dispute is^alluvioti^ and he is entitled to it as a riparian owner.^ B ut to acquire title to land as alluvion, it is neces sary t hat its increase should be imperceptible — that the amount added in e ach moment of time should not be perceived. When die change is so gradual as not to be perceived in any one moment of time, the proprie- tor, whose land on the bank of a river is thus increased, is entitled to the addition. Ang. on Watercourses, § 53 ; 2 Bl. Com. 262 ; 3 Kent, ,. 519. It is enough that no such fact is found in this case, as that this piece of ground is alluvion — that it was formed by imperceptible accretion. The evidence shows that it was not thus formed . McCormick deepen- ed the bed of the stream on the south side, and placed stones along the centre so as to confine the water in the channel thus deepened, and by this means the land in question was left bare. He may have been guilty, by these acts, of a violation of the riparian rights of the plain- tiff or his grantors, but I know of no rule of law which would consti- tute an illegal act of the kind a transfer of the title. As tli e case stands, it is not necessary to pass upon the questi on ■ w hether there is a distinction between the case of alluvion formed b y natural or artificial mean s. I find no such distinction in the books. • If, by some artificial structure or impediment in the stream, the cur- rent should be made to impinge more strongly against one bank, caus- ing it imperceptibly to wear away, and causing a corresponding accre- tion on the opposite bank, I am not prepared to say that the riparian j^ "yx ^ y owner would not be entitled to the alluvion dius formed, especially as , s against the party who caused it. y If the accretion was formed under all the other circumstances neces- sary to constitute it alluvion, I can scarcely suppose that a person could successfully resist die otherwise valid claim of the riparian own- er, by alleging his own wrong, by showing that the accretion would not have thus formed if he had not himself wrongfully placed impedi- ments in the stream. But that question is not before us. It is enoug h t hat this case does not s how that the land in que stion was alluvio n. The judgment, therefore, must be affirme d with costs.^ f 2 "If portions of soil were added to rcfel estate fHreadj' possessed, by gradual I deposition, through the operation of natural causes, or by slow and impercepti- I ble accretion, the owner of the land to which the addition has been made lias Va perfect title to the addition. Upon no principle of reason or justice should Ch.3) ACCRETION 147 VOLCANIC OIL & GAS CO. v. CHAPLIN. (Ontario High Court of Justice, 1912. 27 Out. Law Rep. 34.) Action by the Volcanic Oil and Gas Company , T ohn G. Carr. a nd the TTnion Na tural Gns Comp a ny of Canada Limited (added by order in Chambers), plaintiffs, against Cha£lin_^and^^_Curr^ defendant^ , for a d eclaratio n of the plaintiffs' rightofoMnT^rshipoi certain lands, and for an i njunction a nd damages in respect of trespasses alleged to have been committed by the defendants thereon. Falconbridge;, C. J. The plaintiffs the Volcanic Oil and Gas Com- pany carry on busjnessjn the counties of Essex and Kent in tlic p ro- d uction and sale of petroleum and natural gas ; the plaintiff Carr is a farmer; the defendant C haplin is described as a w heel manuf ac- turer ; the (d efendant Curry) is an o il and gas drilling oper ator. It- The pl aintiff Carr is the owner and occupant of the westerly half of lot 178, Talbot road survey, in the township of Romney. It was granted by the Crown by patent dated the 29th January, 1825, to Carr's predecessor. The lands are described in the patent in manner follow- ing, that is to say: "All that parcel or tract of land situate in the town- ship of Romney, in the county of Kent, in the western district in our said Province, co ntaining by admeasurement one hundred acre s, be the same more or less, being the south-easterly part of lot number 178 on the north-westerly side of Talbot road west, in the said town- ship, together with all the woods and waters thereon lying and being, under the reservations, limitations, and conditions hereinafter ex- I pressed, which said one hundred acres are butted and bounded or may 'be otherwise known as follows, that is to say: commencing at the • north-westerly side of the said road in the limit between lots numbers 177 and 178 at the easterly angle of tlie said lot 178; thence on a h e be deprived of accretions forced upon Mm hy the labor of another Avlthou t hfs coTTseut or connivance, and thus cut oft" from the benefits ot his origin al p roprietorship . * * ' In the case at bar, the accretions have not been sud- den, but gradual, as we gather from the testimony. The city of St. I^ouis, to preserve its harbor, and to prevent the channel from leaving the Missouri shore, threw rock into the river, and the coal dykes were made to afford ac- cess to boats engaged in carrying across the river. The ferry company pro- tected such accretions by an expenditure of labor and money. The accretions, then, are partly the result of natural causes and structures and work erected ^ and performed for the good of the public. Api)ellants should no t.tbpr<^bY ^"'^p' ^yg^ /^ /; their ;hts heretofore en- frontage on the river and be debarred ot valuable ng] joyedr' — Ixjvingston r. «t. Clair CouTny, tj4 in. bu, U4, tlu, 1(3 Am. Kep. 516 (1872)1 affirmed in 23 Wall. 46, 23 L. Ed. 59 (1S74) ; Adams v. Frothingham, 3 Mass. 352, 3 Am. Dec. 151 (1807) ; Tatum v. St. Louis, 125 Mo. M8, 28 S. W. 1002 (1894), ace. "O f course an exception m ^^^\ alwn yg l;^p mnde of cases where the operati ons u pon "the part3-''so w n land are not only calculated, but cn n bfTs oewn loha ve b een intended, to prod uce tbls gra dii al acqufsition of the seashore, howev er di' fficult such proof ot intention may b e." Attorney-General v. Chambers, 4 De G. & .t. 55, 69 (1S.j9), per I^rd Chelmsford, L. C. See Revell v. People, 177 111. 468, 52 N. E. 1052, 43 L. R. A. 790, 69 Am. St. Rep. 257 (1S9S) ; Attorney-(ien- eral v. Holt, [1915] A. C. 599. 148 ORIGINAL TITLES (Part 1 course about sixty degrees west along- the north-westerly side of the said road twenty chains seventy-one links more or less to the limit be- tween lots numbers 178 and 179; thence north forty-five degrees west sixty chains more or less to the allowance for road between the townships of Romney and Tilbury East; tlience east twenty-nine chains more or less to tlie limit between lots numbers 178 and 177; thence south forty-five degrees east 47 chains more or less to the place of beginning." The pl aintiffs claim that the original T albot road, which formed the s outh-westerly boundary of the la nTls mcl udcd m the above patent, ran near the bank of Lake Erie, which at this point is many feet above the beach, and rises perpendicularly therefrom, having a clay front facing the waters of the lake. The pl aintiffs further alle.g^e that alo ng t he shore of Lak e Erie ^ in thnt Jocality, the waters of the l ake have b een encro aching upon t he lands, undermi ning the bank, causmg it to s ubside, and then gradually washing it awav : that, by reason of this encroachment of the lake, Talbot road at an early period g rew dang er- ' o us and unsafe for public t ravel, until, about the year 1838, it was j abandoned as a means of public travel, and a new road, which has for many years been known as the Talbot road, was opened up and dedi- cated to public travel ; and that this road still continues to be the travelled road known as Talbot road, but the original Talbot road a cross the lake front has long since been w ashed away by th e wate rs n^tlip Inkp, nnH now those watcrs have advanced beyond where they were at the time of tlie original Talbot road survey; so that they have washed away the reserve left in front of the Talbot road, also the Talbot road itself and some rods of the front of the surveyed lots; s o that now so much of the lands patented to Carr's predecessor, a nd n ow owned bv him, as are now above the waters of Lake Erie, bo rder on the waters of th e Inke, an d nnt on the original Talbot road. "The above statements are denied by the defendants, but 1 find them o have been proved, as I shall hereinafter state. On or about the 4th July, 1908, the plaintiff Carr executed and de- livered to the plaintiffs the Volcanic company a grant and demise of t he exclusive right to search for, produce, and dispose of petrolcu m a nd natural gas in, under, and upon the said lands, together witli all r ights and privileges necessary therefor, etc. By instrument under the Great Seal of the Province of Ontario, dated the 1st August, 1911, known as Crown lease number 1836, the Go vernment of the Province demised and leased unto the defenda nt C haplin, his heirs, executors, etc., the whole o f "Sat parcel or tra ct o f^land under the waters of Lake Erie in front o f this lot, am ongst otliers (the particular description of which is set out in paragraph 5 of the statement of defence of Curry). Ab out the month of September 1911, the defendant Chaph'n m nHp a verbal contract with the defendant Gurrv. for putting down a w pII ior the productionof petroleum and natur al ^as in and upon the land s Ch. 3) ACCRETION 149 S O demised by the Crown to Chaplin ; and Curr y, actincr under s uch con tract, entered upon what the plaintiff Carr claims to be his la nd, with men and teams, and constructed a derrick and engine-house, etc. The plaintiffs, cl aiming th at this entry was w holly unlawfu l, made objection thereto; and, on the~defendants persistmg in their opera- tions, the plai ntiffs obtained an injunction from the local Judge, whi ch ^ injunc tion was continued until the trial. The plaintiffs now ask: (1) ^tS^^JT/*^ < That the injunction be made pe rpetuaj ; (2) a d eclaration of their rights as to the ownership of the land, a nd as to riparian righ ts ; and (3) damages . The defendants claim that, if the waters of the lake have washedC^^^^^^ C^ away the bank and encroached in and upon lot 178 the lands up to » the foot of the high bank before-mentioned became the property of the Crown, and that the south-westerly external boundaries of the lot shifted as the waters of the lake encroached thereon, giving full right to the Crown to enter into the Crown lease before-mentioned. The point involved is extremely interesting, and is one which, if I correctly apprehend the English and Canadian cases, has never yet been expressly decided, either in the old country or here. The surveyors who were called all agree that, by reason of the original survey having been made so long ago, and of the disappear- ance of original monuments, etc., they could not now lay out upon the land and water, as tliey now exist, the old Talbot road. Numer- ous witnesses were called who remembered that road and could speak of its boundaries, and of the erosion of the beach causing the road to be carried away north to its present position — many rods north of its original situs. T he evidence is overwhelming^ (I disregard the curio us evidence of Samuel Cooper), and I find it to be the fact th at t he locus now in^ controversy is part of the lot 178 north of the o ld T^ bot road". ^ Having come to this conclusion, it follows that, if the plaintiffs' contention in law is well founded, it is quit e -immaterial whe ther or n ot^ the construction of the derrick is entirely in the wat er, or partly in the water and partly on the beach — the fact being that it is on Carr's prq2?rty. In Gould on Waters (3d Ed.) para. 155, pp. 306 to 310, inclusive, after stating the general rule that "land f ormed by alluvio n, or the gradual and imperceptible accretion from the water, and l and gained _ by j-elictiop . or the gradual and imperceptible recession of the water, belong to the owner of the contiguous land to which the addition is made," and th at "conversely land gradually encroached upon bv na v;^ _^u>- ig able waters _cea ses to _^ elpng to the former owner." quoting the^^^\!f rnaximJ'Oui sentit onus debet sentire commodum," the aut hor pro- -^...^ ceeds (p. 309) ; " But when the line along the shore is clearly an d | y^w-.^ ri gidly fixed by a_^de e d or survey, it will not, it seems, afterwards " be *^ c hanged because of accr eti ons, although, as a general rule, the rig ht t o alluvions passes as a riparian right. " ^-^ 150 ORIGINAL TITLES (Part 1 In Saulet v. Shepherd (1866) 4 Wall. (U. S.) 502, 18 L. Ed. 442, it was held that the right to alluvion depends upon the fact of contigu- ity of the estate to the river — where the accretion is made before a strip of land bordering on a river, the accretion belongs to it and not to the larger parcel behind it and from which the strip when sold was separated; citing at length the judgment in a case of Gravier v. City of New Orleans, which is in some Httle known report not to be found in our library at Osgoode Hall. In Chapman v. Hoskins (1851) 2 Md. Ch. 485, tlie general rule is stated as follows (paragraph 2, head-note) : "Owners of lands border- ( ing upon navigable waters are, as riparian proprietors, entitled to any \ increase of the soil which may result from the gradual recession of yhe waters from the shore, or from accretion by alluvion, or from any /other cause; a nd this is regarded as the equivalent for the loss they (n iay sustain from the breaking in, or encroachment of the waters upo n t heir lands^ Now, in the case in hand, the plaintiffs say that they could gain noth- ing by. accretion, by alluvion, or other cause ; and, consequently, they should not lose by encroachment of the water upon their land, to which fixed termin i were assigned by the grant from the Crown. This doctrine seems to be well supported by decisions of Courts which are not binding upon me, but which command my respect, and which would seem to be accurately founded upon basic principles. — - — s In Smith v. St. Louis Public Schools (1860), 30 Mo. 290, the prin-' ciple is very clearly stated : "The principle upon which the right to alluvion is placed by the civil law — which is essentially the same in this respect as the Spanish and French law, and also the English com- mon law — is, t hat he who bears the burdens of an acquisitio n is en ti- t led to its incidental advantages,; con sequently, that the proprietor o f a field bounded by a river, being exposed to the danger of loss fro m its floo ds^ i s entitled t o the increment which from the same caus e maybearmexeil„tP.J.t-^ This rule is inapplicable to what are termed hmited helds, agri limitati ; that is, such as have a definite fixed bound- ary other than the river, such as the streets of a town or city." The reference in the judgment to the English common law is not quite so positive as the head-note states it. The Judge (Napton) in the course of a very learned opinion says (30 Mo. 300) : "It will be found, indeed, that upon this subject the Roman law, and the French and Spanish law which sprung from it, are essentially alike, if we except mere provincial modifications ; and it is believed that the English com- mon law does not materially vary from them. This uniformity neces- sarily results from the fact that the foundation of the doctrine is laid in natural equity." In saying this he may have had in his mind the language of Blackstone, to be now found in book 2 (Lewis' Ed.) pp. 261-2, although he does not cite him. There are some earlier English authorities to which I shall refer later. Then there is a case of Bristol v. County of Carroll (1880) 95 111. Ch. 3) ACCRETION 151 84 (para. 3 of head-note) : "3. To entitle a party to claim the, rig^ ht -/r t o an al lu\dal_for niation, or land gained from a lake hv alluvium, f} ^e. l ake must form a boundary of his land. If^ny_]andjies j3etween his ^ * — boundary linean d_the lake._h e_cannot_clair n such formation ." \^ "'^^'^^ TnDoe dem. Commissioners of BeauTort v. Duncan (1853) 46 N. C. ^-'■**''^* 234, at page 238, Battle, J., says : "Were the allegations supported by the proof, an interesting question would arise, whether the doctrine of alluvion applies to any case where a water boundary is not called for, though the course and distance, called for, may have been co- terminous with it? We -do not feel at liberty to decide the question, because we are clearly of opinion that the evidence given on the part of the defendant does not raise it." Cook V. McClure (1874) 58 N. Y. 437, 17 Am. Rep. 270, is a judg- ment of the Court of AjDpeals of tlie State of New York. The head- note is as follows : il t seems, the rule that, where a boundary li ne i s a stream of water, imperceptib le acc retions to the soil, resulting; from natur aL causes. Erelong to the riparian owner, applies as well where I he | b oundary is u pon an artihcial pond as upon a running stream: . In an action of ejectment, plaintiff claimed under a deed conveying prem- ises upon which was a mill and pond. The boundary line along the pond commenced at 'a stake near the high-water mark of the pond,' running thence 'along the high-water mark of said pond, to tlie up- per end of said pond.' Held, that the line thus given was a fixed and permanent one, and did not follow the changes in the high-water mark of the pond ; and that defendant, who owned the bank bounded by said line, could not claim any accretions or land left dry in conse- quence of the water of the pond receding, although the gradual and imperceptible result of natural causes." In The Schools v. Risley, 10 Wall. (U. S.) 91, 19 L. Ed. 850, the decision was as follows: " A street or tow-path or passway or ot her open space permanently established for public use betw een the river an d the most eastern row of blocks in the 'lorn^g T tow n of St. Louis , w jicn It was first laid out, or established^ or founded, would prevent tlje owners of such lots or blocks from being riparian prop rietors of the land between such lots or blocks and the river. But this would n ot be true of a passage-way or tow-path kept up at the risk a nd QjUaU^^ ^ c harge of the proprietors of the lots , and following the changes of A/^^J^n!X^ the river as it receded or encroached, and if the inclosure of the pro- ^ prietor was advanced or set in with such recession or encroachment." In re Hull and Selby Railway (1839) 5 M. & W. 327, the general law as to gradual accretion or recession is stated. Alderson, B., says (p. 333) : "T he principle laid down by Lord Hale, that the party wh o s uffers the loss shall be entitled also to the benefit, governs and~3 e- ci desme qu estion. That which cannot be perceived in its progress is taken to be aTTT^it never had existed at all." tt' See also Giraud's Lessee y. Hughes (1829) 1 Gill & J. (14 C. A. Md.) 249. 152 ORIGINAL TITLES (Part 1 / The defendants' counsel, in tlie course of a very elaborate and care- I ful argument, cited numerous authorities in support of the view that \ t he plaintiff Carr had lost the land by the encroachment of the wat er. J i do not cite all of these, because they are set out at large in the ex- / tended report of the argument ; but I do not think that there is any case in which it has been expressly held that a person in the position of this individual plaintiff loses his property because of the grad ual encroa climent of the w^ater past the land in front of the road , pas t t he road^and past the fixed boundary of the p]^intiff<^'Jnnd■ He could not have gained an inch of land by accretion, even if tlie lake had re- ceded for a mile; and, therefore, it seems that the fundamental doc- trine of mutualit v. formulated in the civil law and adopted into the jurisprudence of many countries, cannot apply to him. Perhaps the strongest English case cited by the defendants' counsel was Foster v. Wright (1878) 4 C. P. D. 438: "The plaintiff was lord of a manor held under grants giving him the right of fishery in all the waters of the manor, and, consequently, in a river running through it. Some manor land on one side of, and near but not adjoining the river, was enfranchised and became the property of the defendant. The river, which tlien ran wholly within lands belonging to the plain- tiff, afterwards wore away its bank, and by gradual progress, not visi- ble, but periodically ascertained during twelve years, approached and eventually encroached upon the defendant's land, until a strip of it became part of the river bed. The extent of the encroachment could be defined. The defendant went upon the strip and fished there. Held, that an action of trespass against him for so doing could be maintained by the plaintiff, who had an exclusive right of fishery which extended over the whole bed of the river notwithstanding the gradual deviation of the stream on to the defendant's land." That case goes a long way in support of the defendants' contention. But Lord Coleridge, C. J., concurs only in the result arrived at by Lindley, J. He thinks the safer ground appears to be "that the lan- guage (of the grant) conveys * * ♦ a right to 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, i. e., 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." There is a reference in the argument, and in the judgment in this case, to some of tlie old authorities; for example: Britton, book 2, ch. 2, sec. 7, Nichol's translation, p. 218: "But if the increase has been so gradual, that no one could discover or see it, and has been added by length of time, as in a course of many years, and not in one day or in one year, and the channel and course of the water is itself moving towards tlie loser, in that case such addition remains the .to \ this / ^ Ch. 3) ACCRETION 153 purchase and the fee and freehold of the purchaser, if certain bounds '^^ are not found." Lindley, J., seems to think that in In re Hull and Selby Railway which I have already referred, the Court declined to recognise principle. As against the authorities in the United States which I have cited, there is a very strong case of Widdecombe v. Chiles (1903) 173 Mo. 195, 73 S. W. 444, 61 L. R. A. 309, 96 Am. St. Rep. 507, a judgment of the Supreme Court of Missouri. The note is as follows: "De- fendant was the owner of the south half of a section of land between which and the river bed there was originally a strip of 8 acres, forming the fractional north half, which had not been patented. The river changed its bed until it had washed away the 8-acre strip, and flowed through defendant's land, when it began to rebuild to defendant's land all that it had washed away, and about 200 acres additional. Plaintiff then received a patent for the fractional north half of the section as described by the original survey. Held, that, t he accretion being t o defenda nt's land , plaintiff took no title by his patent." And Valliant, J., says WTJio. at page 204, 73 S. W. 446, 61 L. R. A. 309, 96 Am. St. Rep. 507) : "This Court has not said in either of those cases, and we doubt if any Court has ever said, that land acquired under a deed giving metes and bounds which do not reach the river — which in fact did not reach the river when the deed was made — does not become riparian when the intervening land is washed away, and the river in fact becomes a boundary." ^ In considering authorities which are not binding upon me, and when I have to decide ' ^ipon reaso n untrammelled by authority" (per Wern- er, J., in Linehan v. Nelson^ il9l0]~r97' NV Y. 482, at page 485, 90 X. E. 1114, 35 L. R. A. [N. S.] 1119, 18 Ann. Cas. 831), J prefer ^hosj_Umted_States_ decisions, which I have earlier cited. There have also been cited to me authorities which it is contended dispose com- pletely of the Widdecombe Case, viz., the Lopez Case, which is re- ported as Lopez v. Muddun Mohun Thakoor (1870) 13 Moo. Ind. App. 467; Hursuhai Singh v. Synd Lootf Ali Khan (1874) L. R. 2 Ind. App. 28; and Theobald's Law of Land, p. 37. It was strongly contended by tlie junior counsel for the plaintiffs that, apart from the main question, and granting that the erosive ac- tion of the lake has encroached upon the plaintiff Carr, and that he has lost some of his land, then at any rate he only loses it down to the low water mark. But, having regard to the view that I take about the main question, it is not necessary to consider that argument. s feuker v. Canter, U2 Kan. 363, 63 Pac. 617 (1901) ; Welles v. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am, St. Rep. 48 (1S87), ace. But see Gilbert v. Eldridge, 47 -Minn. 210, 40 X. W. 670, 1:5 L. li. .V. 411 (1801) ; Ocean City Ass'n v. Slinver, 64 X. J. Law, 550. 40 Atl. COO. 51 I.. R. A. 425 (1000) ; Hempstead v. Lawrence, 70 Mi.sc. Rep. 52, 127 N. Y. Supp. 040 (1010). See also Cook v. McClure, 58 N. Y. -4.37, 17 Am. Rep. 270 (1874), where the boundary was upon a millpond. 54 OKiGiNAL TITLES (Part 1 I do not see that the statute 1 Geo. V, ch. 6, has any application to this case; nor do I see that the Attorney-General ought to bring the action or is a necessary party — the plaintiffs being concerned only with the trespass upon their lands, and not with any supposed public right. The good faith, or the opposite of the defendants, in making the trespass, is a matter of no consequence in the disposal of the action. I find, therefore, that there has been a tre.=;pn.s.s by \]^p defpnfLTnts upon the piaintift's' land, and that they are entitled to have the inj un c - ti on herem made perpetual, wi th full costs on the High Court scale and $10 damages.* SUPPLEMENTARY NOTE Eminent Domain.— A'c/urr of Ti7?c.--T be title acquired n.s a result of eiiiin eut d oiiiaiii inuceediiiyj is an original or new title, as distiuiriiislicd fiotu a dcri va - tiv e^title or one L)ased upon nrivity. It is said in Weeks v. (Jraee. 191 Mass. 2"JUr.S0 N. !•:. liliO, I) L. K. A. (N. S.) lO'.rJ, 10 Ann. Cas. 1077 (10(17) that: "The power when exerei.sed acts npon the land itself, not upon the title, or the sum of titles, if tliere are diversified interests. Upon ai)iiropriation all inconsistent proprietary rijjhts are divested, and not only privies, Ijut strangers are cou- cluded. * • ♦ Thereafter whoever may have heen the owner, or whatever may have been the quality of his estate, he is entitled to full compensation according to his interest, and the extent of the taking, hut the paramount right is in the puldic, not as claiming under him by a statutory grant, but by an independent title." See, also, Emery v. Boston Terminal Co., 17b Mass.' 171', .09 N. E. 7tj;J, SO Am. St. Kep. 47:; (1901); Todd v. Austin, .34 Conn. 7S (1S07). Couas ^uently eviction un der en anent domain proceedings does unt consti tute a brea'li oi WVtMltints iul' lllh', Ulullier sheMal or geinTal7~ ~Ake v. Mason. 101 Pa. 17 (l.ss-'): Dobbins v. Hrown, 12 Pa. 7.j (ls4I)i; Folt.s v. Huntley, 7 Wend. (N. Y.) 210 (1&31) ; Stevenson v. Loebr, 57 111. 509, 11 Am. Rep. 36 (1S71) ; Kuhn V. Ereeman, 15 Kan. 420 (1875). E.rtcnt of the Interest Ac(/iiired. — I n the absence of constitutional rest ric- ti ons it rests within the discretion of the l.eirisliiture to determine wliat interest or estate shall vest , .^ee bnscoii v. Aew Haven, ib C6nn. 92, .^2 Atl. CIS (1V102) ; Georgia (Jranite K. R. Co. v. Venable, 129 (ia. .".41, OS S. E. 804 (19U7); Ding- ley V. Boston. 100 Mass. 544 (ISUvS) ; Sweet v. P.utTalo, N. Y. & Phila. Rv. Co., 79 N. Y. 29;J (1S79); Eairchild v. St. Paul. 40 Minn. 540. 49 N. W. ;J25 (1891). W hen the extent of the interest is not si)eci[ied. oidv such an estate or inte r- e st will vest a s i.c! necess ary to iieriiiit the dccumi.lislimeiit of tlie p urpose for M -liich the land is apt)roiii-i:ite(l. Clark v. Worcester T'.". Mims: ""I! /IK'i'K> ; N'ewtun v. Newton, 1S8 Mass. 226. 74 N. E. .340 (1905) ; Smith Canal Co. v. Colo- rado Ice & Storage Co., 34 Colo. 485. 82 Pac. 940. 3 L. R. A. (N. S.) 114S (1905). See, also, lleyneman v. Blake, 19 Cal. 579 (1802) ; Quick v. Tavlor, 113 Ind. 540. 10 N. E. ,588 (188S). But see Driscoll v. New Haven, 75 Conn. 92. 52 Atl. 618 (1902). Where the fee vests, as to whether it is an absolute fee. see Halde- man v. Penn R. Co., 50 Pa. 425 (1805) ; Ma lone v. Toledo. 28 Ohio St. 043 (1870) ; Nelson v. Fleming, 56 Ind. 310 (1877) ; Kellogg v. Malin, 50 Mo. 490, 11 Am. Kep. 420 (1872) : People v. White, 11 Barb. (N. Y.) 26 (1851). Where less than the fee vests, the reversion remains in the original owner, his heirs and as- signs. Chambers v. Great Northern Power Co., 100 Minn. 214, 110 N. W. 1128 (1907); McCombs v. Stewart. 40 Ohio St 047 (1SS4) ; Lazarus v. Morris. 212 Pa. 128, 61 Atl. 815 (1905). A ^s to the rights of the parties where only an_ ease- ment is acquired , see Blake v. Rich, 34 N. II. 282 (1S50) ; Upper Ten Mile Plank Road Co. v. Braden, 172 Pa. 400, 33 Atl. 562, 51 Am. St. Rep. 759 (1896). When Title Passes. — I t is generally held that title vests O'dy upon payme nt of compensation. City or Chicago V. 'Birbian, 80 in. 4si (1875) ; Levering v. ^Mladelphia G. & N. K. Co., 8 Watts & S. (Pa.) 459 (1844) ; Kennedy v. Indian- apolis, 103 U. S. 599, 26 L. Ed. 550 (1S80) ; New Orleans & S. R. R. Co. v. Jones, 4 Apportionment of Accretions. — See case note to Northern Pine Land Co. V. Bigelow, 84 Wis. 157. 54 N. W. 496 (1893), in 21 L. R. A. 776, et seq. ; also Angell on Water Courses (4th Ed.) 47 et seq. Ch. 3) ACCRETION 155 68 Ala. 48 (1880) ; Cushman v. Smith, 34 Me. 247 (1852) ; Stacey v. Vermont Cent. R. Co., 27 Vt. 89 (1854). In the absence of constitution,-!! rpsfrminti; |Jip legislature may in its discre - tio nJI^ermine when title shall rest. .Sweet v. Rechel. 159 U. ». oJiO, 1(3 tjup. Cfr43, 40 L. Ed. 188 (lS9o). See, also, City of Pittsburg v. Scott, 1 Pa. 309 (1845). No extended discussion of this question will be attempted as each case is very larj:ely dependent UE)on the words of a particular statute or the state con- stitution. Tax Titles. — T he nature and extent of the title acouir pd hy g piir,^i>pgar <^f a tax sale depends largely upon the terms of the particular statute unde r which the taxes are kn-iedf Where the tax Is made a charge directly uiion the land itself, and the proc-eedings for its collection are strictly ii^Ji;iii> ^^^*^ ^'^^^ deed (j)rovided all the proceedings have been regular) will ha vetne effect of de stro , viug all t)rlor interests in the estate, whether vested or co utinL'eiit, f>y- ecuted or executory, and whether in noss^^-ssii^)ii. i-t'Vi-r>and Co. v. Chicago Mill & Lumber Co., 84 Ark. 1. 1(J3 S. W. (!09 (1907); Atkins V. Hinman, 7 111. (2 Cilnian) 4:}7 (1845i; McFadden v. Goff, 32 Kan. 415, 4 I'ac. 841 (1884); McMtihon v. Crean, 109 .Md. (;52, 71 Atl. 995 (19U9) ; Langley v. Chai)in, i:{4 Mass. 82 (iss;5); Cole v. Van Ostnind, 131 Wis. 454, 110 N. W. 884 (1997); Hefner v. Northwestern Mnt. Life Ins. Co., 12:{ U. S. 747, 8 Sup. VL 'Ml, 31 L. Ed. 309 (1S.S7). W here, however, the taxes when levie d c onstitute a debt due from the owner wlikh ma y Lie collected in an action i n persu Lia nT; and wliere the law in terms or uinin a fair construction permits a saleol' the land oidy when all other remedies have been exliaiiste(l, the n t he tit le ac( |uircd is deriv ativ e, and includes only the Interest of tlie perso n taxeij: — See .MeTTTTiaid v. Hannah (C. C.) "1 l-'eil. 7:>. (1M)2); dross v. Taylor, 81 CaTsO. G S. E. 179 (IS'^S); (wites v. Lawson, .32 (Jrat. (Va.) 12 (1879); Coney V. Cummings, 12 I.a. Ann. 74S (1857); Hunn v. Winston. 31 Miss. 1.35 (18.50); Dyer v. liranch Hank at Mobile, 14 Ala. (522 (1S4.S) ; Ex parte Macay. 84 N. C. 03 (1881): Jlisper County v. Wadlow, 82 Mo. 172 (1SS4); Ferguson v. Quinn, 97 Tenn. 4fi. .3(! S. W. 57li, .33 L. K. A. (iSS (l.SDti); Clenn v. West. lOO \a. :;56, 5U S. E. 14;? (19071. See, also. Irwin v. Hank of I iiited State.s, I I'a. 349 (1845), as to situation where .separate interests are se|>arutely a.ssessed. See on the subject generally Black on Tax Titles. PART II DERIVATIVE TITLES CHAPTER I MODE OF CONVEYANCE* SECTION 1.— AT COMMON LAW 1. Feoffment LITTLETON'S TENURES. But of feoffments made in the country, or gifts in tail, or lease for term of life; in such cases where a freehold shall pass, if it be by deed or without deed, i t behoveth to have livery of seisin. Section 59. COKE UPON LITTLETON. "Livery of sefsin." Traditio, or deliberatio seisinre, is a solemni ty, t hat the law recju i reth for the passing of a freehold of lands or ten e- rnents by delivery of seisin thereo f. Intervenire debet solennitas in mutatione liberi tenementi, ne contingat donationem deficere pro de- fectu probationis. And there be two kinds of livery of seisin, viz. a li very in deed , and a l ivery in law . A li very in deed is when the feoffor taketh the ring of the door, or turf or twig ot tlie land, and d ehver eth the same uj)on the land to the feoffee in name of seisin of the land , &c., per hostium et per haspam et annulum vel per fustem vel baculum, &c. ''' * * A livery in law is, when the feoffor saith to the feoffee, being in the view ot the house or land, (I ^ive ynn ynndpr l^nH to you an d your heir s, and go enter into the same, and take possession thereo f accordino-ly) and the fe offee doth accordingly in the life of the feoff- or enter, t his is a good feoffment , for signatio pro traditione habetur. And herewith agreeth Bracton : Item dici poterit et assignari, quando res vendita vel donata sit in conspectu, quam venditor et donator dicit 1 For the background of the subject-matter of this chapter, see 2 Pollock & Maitland, Hist. Eng. Law, SO-lOti. (156) Ch. ]) MODE OP CONVEYANCE 15T se tnidere : and in another place he saith, in seisina per effectiim et per aspectum. But if either feoffor or the feoffee die before entry Ih e hvery is void . And Hvery within the view is good where there is no deed of feoffment. And such a Hvery is good albeit the land lie in an- other county. A man may have an inheritance in an upper chamber, though the lower buildings and soil be in another and seeing it is an inh eritance cor poreal it shall pass by livery. 4Sa7~B: STATUTE OF FRAUDS. For prevention of many fraudulent practices , which are commonly endeavored to be upheld by perjury and subornation of perjury; (2) be it enacted by the King's most excellent majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and the Com- mons, in this present Parliament assembled, and by the authority of JJ \h the same, That f rom and aj te r the four and twentieth day of Jun e. Ouv*.^ AT ' w hich shall be in TITe year oTour Lord one thousand six hundred S£v- Q p ntv seven, all leases, estates, interests of freeliol d. or tc ^m7s^of^j>:eaTS, o r any u nccrUiurii^^ nKiiio rs, lands .^encmentsorhereditanients, made or created by livery and s eisin only , or by parol and not nut in writing, and signed by the p ar- t ies so making or crcatin^^ the same, or their a^!::^cnts 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 ta ken to have any other or greater force or effect ; any considerati on f or making nny such parol leases or estates, or any former law o r ■ us age, to the contrary notwithstandin,c: . IL Except nevertheless all leases n ot exceeding the term of three y ejirs from the making thereo f, 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. ^ • ^^^ in. And moreover, That no leases, estates, or interests either of - ^ freehold', or terms of years, or any uncertain interest, not being copy- hold 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 b e assip ^ned. ffrantcd or surren(J ereii--un- les s it be by deed or note in writing, signed bv the party so n.swni- j n'grgTanting or surrendering^ the same, or their agents thereunto law- fu lly authorized by writinc^. or by act and operation of law.' ^■^Car. II, c. 3, §§ 1-3^ 2 F or a l ong time prior to thfi Statute of Frauds n writing;, thougli JUJ- nece s^^iiry to an ettectivo T(:-('i HmeDt, was comnionly employea ns evidence ot Ih b "Lra usaction a nd im [rrrTTF : ^ ~~ „ „. ,t ^ ^ er <. ^ In 184o. i'ariiamoDt prov i d ed (St. 8 & 9 Vict. c. IOC, § 3) that a feoffment ..^^ other than a feoffment made under a custom by an infant, should be deeme d /^ void unless evidenced b}- a deed. 158 DERIVATIVE TITLES (Part 2 CHALLIS. REAL PROPERTY. A feoffment, the most venerable of assurances, survives to thi§ ^^y, b ut is now little use d. It, is believed that certain old corporate bodies still retain, at all events to some extent, the ancient practice of con- veying by feoffment. I t is the only assurance (not being matter of re cord, as a fine or recovery) by which, at the comm on law, legal es- t ates of freehold in possession can be conveyed to a person ha ving n o subsisting interest in the land and no privity with the person mak ing t he assurance. It consists simply and solely in the livery of the seisin; and some phrases in common use, which seem to imply a distinction between the feoffment and the livery, are so far incorrect. By the common law, any person having actual possessio n (not nec- essarily actual seisin), of lands, j^ould^ bv a feoffmen t, give to any per- son, other than the person having the next or the immediate estate of freehold in the lands, a n immediate estate of freehold , having any quantum. If the feoffor was actually seised, and the estate which passed by the feoffment was no greater than the estate of the feoffor, the feoffnient took effect rightfully '^i bu t if ^he f eoffor yv as not actu- ally seised, or if the estate which passed by the feoffment was grea ter t han his estate, the feoffment was styled a tortious feoffment, a nd was said to take effect by wrong. In accordance with the maxim that no one can qualify his own wrong, a tortious feoffment devested the whole fee simple out of th e rightful owner or owners . It does not follow that the tortious feoff- ment was necessarily a feoffment in fee simple ; and it might in fact • be for a less estate. In such a case, the feoffee took only the less estate, but the whole fee simple was devested out of the rightful owner or owners, a nd such part of it as was not disposed of by t he f eoffment became vested in the feoffor by way of a tortious revers ion upon the tortious particular estate created by the feoffment. /^ The tortious operation offeoffnjmnts made after 1st October, 1845, Vis prevented by 8 & 9 Vict. c. 106, § 4. The p ossession of a termor for years, or tenant at will, or by suffer- ance, sufficed to enable the termor, or tenant, to make a tortious feoft"- ment; and thus to convey an immediate estate of freehold which ful- filled many of the purposes of a rightful estate, though it affor ded no defence against the title of the rightful owne r. Upon the subject generally, and especially upon the case of Doe v. Horde, 1 Burr. 60, in which Lord Mansfield, striving after an unattainable equity did his best to throw the law into confusion, see Butl. n. 1 on Co. Litt. 330b. I f a. tortious feoffment was made by anv person other than a ten ant i n tail actually seised, the person rightfully entitled (or any other p er- s on acting in his name, even though without his assent) might at com - : mon law destroy the tortious estate of the feoffee by mere entry (Co. Litt. 258a) ; but if the feoffee's heir had succeeded by inheritance be- Ch. 1) MODE OF CONVEYANCE ^.J^d^^ J 1^^ fore entry made, the h eir's estate could not be affected by entry, a nd t he rightful claimant was put to his actio n. (Litt./sect. 3S5.) His entry was technically said to be t olled by dcsccnt^'^ast . Entry was t pllcd by a descent cast in fee tail (when the disseisor made a giit in t aij) as well as in fee simple. (Ibid. sect. 386.) But on the extinction of the entail by failure of issue, the entry was revived against the remainderman or reversioner. (Co. Litt. 238b.) The 3 & 4 Will. 4, c. 27, § 39, eiiacts that no descent cast after 3 1s t ->i^ December, 1833, shall toll any right of entry^ This enactment made /-e tn il tHe conveyance b y gift, und when a iile estate t-he coiTrgySnce waa by lease . 160 DERIVATIVE TITLES (Part 2 II. Fine BLACI^STO^'fS^- COMMENTARIES. A fine is som e times said to be a feofifment of record : though it might with more accuracy be called a n acknowledgment of a feurimen t on record . By which is to be understood, that i t has at lenst tho .'^n me f orce and effect with a fenttrnpnt, in the conveying and assurins: of lancls.: though it is one of those methods of transferring estates of freehold by the common law, in which l iverv of seisin is not ncrrs'^n rv t p be actually ^iven : ._the supposition and acknowledgment thereof in a court of record, however fictitious, mducmg an equal notoriety . But, more particularly, a fine may be described to be an amicable compos i- ion or agreement of a suit, either actual or fictitious, by leave of th e k ing or his justices: whereby the_ lands in question become, or a re / acknowledged to be the right of one of the partie s : In its original it was founded on an actual suit, commenced at law for recovery of Vossession of lands or other hereditaments ; and the possession thus -'gained by such composition was found to be so sure and effectual, that fi ctitious actions were, and continue to be, every day commen ced, for the sake of obtaining the same securi ty. Book 2, star p. 348. III. Common Recovery BLACKSTONE'S COMMENTARIES. A common recovery is so far like a fine, t hat it is a suit or actio n, either actual or fictitious ; ^and in it the lands are recovered again st t he tenant of the freehold : which recovery, being a supposed adju- dication of the right, b inds all perso ns, an d vests a free a nd_ ^bsol ute f ee-simple in the recover or. A recovery, therefore, being in the nature of an action at law, not immediately c ompromised like a fine, but car- ried on through every regular stage of proceeding, I am greatly ap- prehensive that its form and method will not be easily understood by the student who is not yet acquainted with the course of judicial proceedings; which cannot be thoroughly explained, till treated of at large in the third book of these Commentaries. Book 2, star p. 357.* * For an account of the procedure in common recoveries, see Pollock, Land -V Laws, SO; Williams, R. P. 95 et seq. <^ ^ By the Fines and Recoveries Act. 3 & 4 W. IV, c. 74, i t is provfdetl-^at after Jj^' jj>jJ^ D ecember 31. 18:^3. no fine shall be levied or commog recovery siiffered of fjjA>^\ l»«lds of any tenure. ~" "If*^ 4^ Ch. 1) MODE OF CONVEYANCa 161 IV. Leas^ BLACKSTONE'S COMMENTARIES. A lease is properly a conveyance of any' lands or tenements (usu- a lly in consideration of rent or other annual recompense), made fo r lifCj^f or years, or at will, but^ jil\va;^s ^r a less time than the less or hatti _iQj:li£_pr ^r {ii^ Sj^ for if it be for the whoTe interest, it is more prop- e rly an assjgnm^ than a lease. The usual words of operation in it are, "demise, grant, and to farm let : dimisi, concessi, et ad firmam tra- didi." Farm, or feorme, is an old Saxon word signifying provisions; and it came to be used instead of rent or render, because anciently the g reater part of rents were reserved in provisions ; in corn, in poultry , .i nd the like : till the use of money became more frequ ent. So tliat a farmer, firmarius, was one who held his land upon payment of a rent or feorme : though at present, by a gradual departure from t he o riginal sense, the word farm is brought to signify the very estate or l ands so held upon farm or rent. By this conveyance an estate for life, f^^rveaji^, or a^vv i^, may be created, e ither in corporc^Torin- c orporeal hereditaments ; though livery of seisin is indeed incident and necessary to one species of leases, viz. : leases for life of corporeal hereditaments ; but to no other. Book 2, star p. 317. V. ExcHANce BLACKSTONE'S COMMENTARIES. An exchange is a mutual grant of equal interests, the one in con- sideration of the other. The word "exchange" is so individually req- uisite and appropriated by law to this case, that it cannot be supplied by any other word, or expressed by any circumlocution. The estate s ^o^^;^ e xchanged must be equal in quantity, not of value, for that is im ma- ^j^iL*..-^ ^^-'^^ t enal. but of interest; as feQ;^sipTp4^g fonf^e-siiTiple, a l^ase jor.t^viinty..^;;.^.^.^ yg^j^ for ^ l^s^ i^or t wejity. ^ years, and the like. And the exchango? may be of things that lie either in grant or in livery. B ut no livery o f s eisin, even in exchanges of freehold, i s necessary to perfect the con - veyance : for each party stands in the place of the other and occupies his right, and each of them hath already had corporal possession of his own land. But entry must be made on both sides, for, if either part y die before entry, the exchange is void, for want of sufficient notoriety . Book 2, star p. 323.' Aig.Peop. — 11 162 DERIVATIVE TITLES (Part 2 VI. Partition BLACKSTONE'S COMMENTARIES. A partition is w hen two or more joint-tenants, coparceners, or te n- ants in common. agree_^to divide the lands so held among tliem in sev- e ralty, each taking a distinct par t. Book 2, star p. 2)2Z^ VII. Grant r.fzi BLACKSTONE'S COMMENTARIES. Grants, concessiones ; t he regular method by the commo p Inw nf t ransferring the property of incorporeal hereditaments, or such thing s w hereof no livery can be had. For which reason all corporeal here- ditaments, as lands and houses, are said to lie in livery ; and the other s, . a s advowsons. commons , rcnts^ r eversions, etc.. to lie in e rrant . Snd / the reason is given by Bracton : "traditio, or livery, nihil aliud est quam rei corporalis de persona in personam, de manu in manum, trans- atio aut in possessionem inductio: sed res incorporales, qua^ sunt psum jus rei vel corpori inha^rens, traditionem non patiuntur" Qiy- is merely the transferring from one person to another, fro m one hand to another, or the induction into possession of a co rporeal here- d itament; but an incorporeal hereditament, which is the right itself t o a thing, or inherent in the person, does not admit of delivery) . These , t herefore^ pass merely by the delivery of the deed . And in seigniories, or reversions of lands, such grant, together with the attornment" of the tenant (while attornments were requisite), were held to be of equal notoriety with, and therefore equivalent to, a feoffment and liv- ery of lands in immediate possession. I t therefore diflfers but Ij ttle f rom a feoffment , exc^^t in jts subjec t-matt er ; for the operative words thenein commonly used are dedi et concessi, "have given and granted." Book 2, star p. 317. 6 See infra, pp. 687, 6S9, 6 See Litt. 551, 5G7-5C9 ; Co. Litt. .309. a, b. "And be it further enacted by the nuthority afore. 3 REX V. HUDSON. (Court of Kins's Bench, 1732. 2 Strange, 909.) On an in formation for stopping up a comm on font-way, the prose- cutor proved, that it ha d been a common passage under the defendan t's house as far back as anv witnesses could remember. But the defend- ant producing a lease made for fifty-six years of this way, to the intent it might be a passage during the term, and t he term expiring in 1728 ; th e Chief Tustire rRAVAfONn) held the defendant not guilty: and as to u jAf^^yy^ (n t hejenving it open since, he said that it would not be lon g ^ enough to -^"j^ a mount to a gift of it to the public .'^ LADE V. SHEPHERD. (Court of King's Bench, 1735. 2 Strange, 1004.) Upon trial of an a ction of trespass a c ase was made, that the place where the supposed trespass was committed was formerly the prope rty of the plaintiff, who some years since built a street upon U. which_ bas ever sinceTecn used as a highway. That the defgniljint had land con- tiguous parted only by a ditch, and that he laid_a_l) ridge o ver the ditch, t he end whereof rested on the highway . And it was insisted for the defendant, tliat by the plaintiff's making it a street, it was a dedication of it to the public ; and therefore however he might be liable to an in- dictrnenftor a nuisance, yet the plaintiff could not sue him as for a trespass on his private property. Sed per Curi.vm. Tt is rertninlv a d edication to the public, so far as the public has occasion ^^^ n, ^v'"^'^"' i s only for a right of passage . Rut ij_ never was understom LJo be a transfer of the absolute property in the soi l. So the plaintiff had j u dgmen t. 7 mat six yenrs mnv be sufficient time whert^in to presume a dedicat ion fr om use r, isee Rugby c''hnnty V. Merrywentnor. 11 Knst. .'^75. note. T'ser fo r eiL^ hn-fn" months, where th ere w as a declaration of iiitontioii to ded icnte. lipid sf rnicient in ' N London \l. Co. v ^t. Mary, Isiinyton. 21 W. K. 2U(J (1.^72). "Xo particular time i.s necessary for evidence of a dedication; it is not. like a firaiit, presumed from length "of time; i f the act of dedication be unequ iv- ocal, it may take place imuiediatcly ; for instance, if a man Diiiias a um ible r ow of houses opening into an ancient street at each end niaking a street^ and sells or let^ thP hnn'^ps. that, is instantly a nigpway^ - uimmore, J., in WOudver v. iladden. 5 Taunt. 12."> (181.''>). A. is tenant for life, the remainder in fee being in B. ; A. dedicates a por- tion of the land as a highway. What effect, if any. would such dedication have upon B.? See FarquharV. Is'ewbury Rural Council, \lWd\ 1 Ch. 12. V 164 DERIVATIVE TITLES (Part 2 REX V. LLOYD. (Court of King's Bench, 180S. 1 Camp. 260.) This was an i ndictment for obstructing a hi^qhwa y. It appeared that tlie place in question is a narrow passage lying on the north side of Snow-Hill, called Cock-court; and being of an oblong shape, leads from one part of this street to another, without having any outlet elsewhere. The houses all the way round had once belonged to the same individual ; and the d efendant, having purchased tliose at th e top of t he court, built a wall across there, interceptmg all comm unica- t ion between the i-wn <;if]p" nnlrm Irpirn}' nf Snn-jv T^ill Till then, the passage had been open as far back as could be remembered ; and though it could in general be of no use to those walking up and down Snow- Hill being a most circuitous route which no one would willingly take, yet it was convenient for the public when the street was blocked up bv a crowd. The passage had been lo ng lighted bv the citv of Lo ndon and there had n ever been any chain acr oss it, or any mark to denote its being private property. Lord EllExborougii. I think, that if places are lighted by public bodies, this is strong evidence of the public having a right of way over them ; and t Q say that this right cannot exist because a particular p lace does not lead -coftveiiicixtly from one street to another, w ould go to cx - t rn | guish all highways w here Tas in Oueensauarc'l there is no thorough- fare. If the owner of the soil throws open a passage, and neither marks by any visibly, distinction, that he means to preserve all his rights over it, nor excludes persons from passing through it by positive prohibition, he sh all be presumed to have dedicated it to the publ ic. Although the passage in question was originally intended only for pri- vate convenience, the public are not now to be excluded from it, after being allowed to use it so long without any interruption. The defendant wa«; fnnnH { ym'liy " - . --■ 8 Tlmt there cannot be a dedication to a vnrtion of the nubll ^, i=ifp r»"»^Q v. Huskin^^on, 11 M. & W. S-JT (184:;). But see Worinley v. Worniley, infra. A bridge may be a public bridge by dedication, altliough the right of the public to use same is limited to such times as the river is not fordable. Rex V. Northampton, 2 M. «& S. 2G2 (1S14). As to dedication for limited i>nrposes, see Stafford v. Coyney, 7 B. & C. 257 (1S27); Gowen v. Philadelphia Ex- cbauge Co., 5 Watts & S. (Pa.) 141, 40 Am. Dec. 4S9 (1S43). And as to dpdica- tion subject to re.servations on behalf of tbe owner, see Mercer v. Woodgate, Li. R. 5 Q. B. 26 (1869), where the owner claimed the right to plough up the way periodically; Attorney General v. Horner, [1913] 2 Ch. 140, where the owner claimed land had been dedicated for street purposes subject to a right of overflow from a private market ; City of Noblesville v. Lake Erie & W. R. Co., 130 Ind. 1, 29 N. E. 484 (1891), where the dedication of a street was claimed to be subject to the right to lay down a railroad therein. Ch. 1) MODE OF CONVEYANCE) 165 CINCINNATI V. WHITE. (Supreme Court of the United States, 1S32. 6 Pet. 431, 8 L. Ed. 452.) Error to the Circuit Court of Ohio. The c ase came before the cour t on a bill of exceptions , taken by the plaintiffs in error, the defendants in the circuit court, to the instructions g iven by the court to the jury, on the request of the counsel for the plaintiff's 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 was given on those excepn tions, 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 therewitli, 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. Thompson, J., delivered the opinion of the court. The eiectnie nt i n this case was brought by Edward White, who is also the defend ant in error, ^o recover tJo.ss(;^ssi()n of a small lot of ground, in the city o f Cincinnati. lyin!£- in thai uart of the city usually denominated the co m- HiSin. To the right understanding of the question upon which the opinion of the court rests, it will be sufficient to state, generally, that on the 15th of October, in the y ear 1788. Jo hn Cleves Symmes entered into a contract w ith the then board of treasury, under the direction of congress, for the p urchase of a large tract of land, then a wildern ess, i ncluding that where the city of Cincinnati now stands. Some negotia- tions relative to the payments for the land delayed the consummation of the contract for several years ; but on_ thc 30th of September 179 4, a patent was issued , conveying to Symmes and his associates, the land contracted for ; and as Symmes was the only person named in the pat- ent, die f ee was, of course, vested in him . Before the' issuing of the patent, however, and, as the witnesses say, in the year 1788, Matth ias P enman purchased of Symmes a part of the tract inrlndrH in ^he pat- en |yandcniba_aan^j^ That in the same year, Denman sold one-third o f his purchase to Israel Lud- low, and one-third to R o"bert Patterson. These three persons, Den- man, Ludlow and Patterson being t he equitable owners of the ]^;\iA (nn Ipo-nl |j|]p having hppn crr.nntpd ), proceeded, in January. 1789. to lay out the town. A plan was made and approved of by all the pro- prietors ; according to which, the ground lying between Front street and the river, and so located as to include the premises in question, was set ap art as a common, for the use and benefit of the town for ever, reservmg only the right of a ferry ; and no lots were laid out on the land tlius dedicated as a common. 166 DERIVATIVE TITLES (Part 2 The lessor of the plaintiff made title to the premises in question un- der Matthias Denman, and produced in evidence a copy, duly authenti- cated, of the location of the fraction 17, from the books of John C. Symmes, to Matthias Denman, as follows: "1791, April 4, Captain Israel Ludlow, in behalf of Mr. Matthias Denman, of New Jersey, presents for entry and location, a warrant for one fraction of a section, or 107.8 acres of land, by virtue of which he locates the 17th fractional section in the 4th 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, 18C0, John Cleves vSymmes 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 plaintift, by sundry mesne conveyances, deduces a title to the premises to himself. In the course of the trial, several exceptions were taken to the ruling of tlie court, with respect to tlie evidence olifered 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 exceptions. 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. PAt the request of the plaintiff', the^ court instructed the jury, "that to en- able the city to hold this ground, and defend themselves in this action, by possession, they must show an unequivocal, uninterrupted posses- sion for at least twenty years." On the part of the defendants, the court was asked to instruct the 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 dedicated, became the property of, and was vested in, the public, for the purposes intended by the said proprietors; and that, by such dedication and reservation, the said original proprietors, and all persons claiming under them, are estopped from assertiQw any claim or right to the said land thus.jpserved and dedicated." The court r^ fused. to give the instruction as, asked, but gave the following iastruc- \ tion: "That it was competent for the original proprietors ..oi 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 an^ dedication, the right of use to such part is vested in the public for the purposes designated ; but that such reservation and dedication do not invest the public with the fee." Ch. 1) MODE OF CONVEYANCE 167 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 enjoy- ment 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 pro- prietors 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 m its popular sense, as a piece' of ground left open for commons and public use, for the convenience and accommodation of the inhabitants of the town. "~^ Dedications of land for public purposes have frequently come un- der the consideration of this court; and the objections which have generally been raised against their validity have been the want jofa_ j^ grantee competent to taketlie titlej applying to them the rule which ^revails^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 adapt- ed to the nature and circumstances of the case, and to carry into execu- tion die 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, ithat dedications of land for charitabla and religious purposes, and for public highways, we re valid, without any grantee to whom the fee could be conveyed^ TtTfhough 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 princip le , if well foundedjn the law, must have a gen- eral applicatiqn_Jo_all appropriations and dedications for public use, where there is no g rantee 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 instances, contrary to the general rule, where the fee may r emain in abeyance, until there is a grantee capable of taking; where the object and pur- pose 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 re-asserting 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. 168 DEuivATivE TITLES (Part 2 The recent case of Beatty v. Kurtz, 2 Pet. 266, 7 L. Ed. 521, 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 George- town, "for the Lutheran Church." and had been used as a place of burial, from the time of the dedication. There was not, how'cver, at the time of the appropriation, or at any time afterwards, any incor- porated 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 re- lied 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 irLthe case of the Town of Pawlet v. Clark, 9 Cranch, 292, 3 L. Ed. 735,»that appropriations of this description were exceptions to the general rule requiring a granttnTl 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 Town of Pawlet v. Clark, 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 tlie principle, the case of Lade v. Shepherd, 2 Str. 1004, was referred to ; which was an action of trespass, and the place where the supposed trespass was committed was formerly the property of the plaintiff, 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 plaintiff's making a street, it was a dedi- cation 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 only for a right of passage; but it never was understood to be a transfer of his absolute property in the soil. The doctrine necessarily growing out of that case has a .sirong bearing upon the one now before the court, in two points of view. 4it shows, in the first place, that no deed or writing was necessary to ^ Iconstitute a valid dedication of the easement. All that was done, from ^iljflhing that appears in the case, was barely laying out the street by the owner, across his land. fAnd in the second place, that it is not necessary that the fee of the land should pass, in order to secure theT easement to the public. And this must necessarily be so, from the ' ■ nature of the case, in the dedication of all public highAvays. There is ' no grantee to take immediately, nor is any one contemplated by die . Ch. 1) MODE OP CONVEYANCE 160 party to take the fee at any future day. No grant or conveyance can be nec essary t o pass .the iee_out of ,the._Q\vner of the land, and let it remain in abeyanc e, until a grantee shall come in esse; and indeed, the case^reTelTeHtoTn Strange considers the fee as remaining in the origi- nal owner; otherwise, he could sustain no action for a private injure- 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 ap- ply 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 McConneU y. Trustees of the Town of Lexington, 12 Wheat. 582, 6 L. Ed. 735. The court said, the reasonableness of reserving a public spring, for public 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 appropria- tion 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 m ade, 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 require 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 appropriation for a highway in the coun- try ; 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, fit 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 comi>en- sated the owners for the land thus thrown out as public grounds. And aiterJbdng^thuAselapart for public use, and enjoyed as such, and pri- vate ^n£indiyidualj^ights acquired with reference to it, the law con- , g iders it in the nature o f an estoppel in pais, which precludes the origi- 1 nal owner from revoking such dedication. It is a violation of good \ faith to the public, "and to those who have acquired private property i with a view to the enjoyment of the use thus publicly granted. j The right of the public, in such cases, does not depend upon a twenty years' possession. Such a doctrine, applied to public highways and the streets of the numerous villages and cities that are so rapidly springing ■ up in every part of our country, would be destructive of public con- veniencc^and private right. The case of Jarvis v. Dean, 3 Bing. 447, sho\i:5,\that rights of this description do not rest upon length of posses- g^r The plaintiff's right to recover 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 w 1/ 170 DERIVATIVE TITLES (Part 2 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 jii;esuming it was used with the full assent of the owner of the soil. I 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 whether 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; necessarily 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 permission to have it used as such. Such use, however, ought to be for such a length of time that the pub- lic 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 circum5j:ance that the land has been enjoyed as aj;:Qmmon-4^i'-many years. IfBut the actual appropriation for that pur- )ose is established by the irlbst positive and conclusive evidence. And 'indeed, the testimony is such as would have warranted the jury in pre- suming a grant, if that had been necessary. And the fee might be con- sidered in abeyance, until a competent grantee appeared to receive it; which was as early as the year 1802, when the city was incorporated. And the common having then been taken under the charge and direc- tion of the trustees, would be amply sufficient to show an acceptance, if that was necessary, for securing the protection of the public right. But it has been argued, that this appropriation was a nullity, because ' 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 land, as the patent to S'ymmes was not issued until the year 1794. It is undoubtedly true, that no legal title had passed from the United States to Symmes. BuMhe proprie- tors 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 dedication 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 in- \ sanded by the appropriation. This was the -doctrine in the case of Jafvis V. Dean, already referred to, with respect toa_,st£££l.;_aGd the same rule must apply to all public dedications ;|ran3~from the mere use of the land, as public land, thus appropriated, the assent of the owner Ch. 1) MODE OP CONVEYANCE 171 /may be presumed. In the present case there having been an actual 'j/ dedication, fully proved, a contined assent will be presumed, until a / dissent is shown ; and this should be satisfactorily established by the I partjc ^laim ing against the dedications; In the case of Rex v. Lloyd, 1 ^ Campr2627 Lord Ellenborough~s"aysr 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. ^J^t the time the plan of the town of Cincinnati was laid ou.t by the proprietors, and the common dedicated to public use, no legal title had been granted. But as soon as Sj'mmes became vested with the legal title, under the patent of 1794, the equitable right of the pro- prietors 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 a ffirma nce of the first appropriation. And it is very satisfactorily proved,. that Joel Williams, from whom the lessor of the plaintiff de- duces his title, well understood, when he purchased of Denman, and for some years before, that his 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 knowl- edge of the fact. / But it is contended, that the lessor of the plaintiff has shown tlie /legal title to the premises in question in himself, which is enough to I entitle him to recover at law ; and that the defendants' remedy, if any 1 they have, is in a court of equity. And such was substantially the opinion of the circuit court, in the fourth instruction asked by the plaintiff, and given by the court, viz : "that if the said proprietors did appropriate said ground, having no title thereto, and afterwards ac- quired 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 hol^iing the legal title." We do not accede to this doctrine. For should it be admitted, that the mere naked fee was in tlie lessor of the plaintiff, it by no means follows, that he is entitledJi>-i:^COver possession of the comraojLjnjaDL action of ejectment. fThis is a possessory action, and the plaintiff, to entitle himself to recover, must have the right of possession; and 172 DERIVATIVE TITLES (Part 2 whatever takes away this right of possession, will deprive him of the remedy by ejectment, Adams's Eject. 32; Stark, part 4, p. 506-7. This is the rulejaid down by Lord Mansfield in Atkyns v. Horde, 1 Burr . 119 -^^ /f^n ejectment," says he, "is a possessory remedy, and JnTy 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 T. R. 684, it was held, that although an outstanding satisfied term may be presumed to be sur- rendered, yet an unsatisfied term, raised for the purpose of securing an annuity, cannot, during the life of the annuitant; and may be set up as a bar tQ the heir-at-law, even though he claim only subject to the chafge.^ Thereby clearly showing, the plaintiff must have, not only the le, but a clear present right to the possession of the premises ; cannot recover in an action of ejectment. And in the case of Doe Jackson, 2 Dow. & Ry. 523, Bailey, 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 tirfte the action is brought, the plaintiff cannot recover," If, then, it is indispensable, that the lessor of the plaintiff should show \y a right of possession in himself, and that the defendants are wrong- doers, it is difficult to perceive, on what grounds this action can be sus- tained. The later authorities in England which have been referred to, leave it at least questionable, whether the doctrine of Lord Mansfield in the case of Goodtitle v. Alker, 1 Burr. 143, "that ejectment will lie by the owner of the soil for land, which is subject to a passage over it as the king's highway," would be sustained, at the present day, at Westminster Hall. It was not, even at that day, considered a settled point, for the counsel on the argument (page 140), referred to a case, said to have been decided by Lord Hardwicke ; in which he held, that no possession could be delivered of the soil of a highway, and therefore, no ejectment would lie for it. This doctrine of Lord Mansfield has crept into most of our elementary treatises on the action of ejectment, and has appar- ently, in some instances, been incidentally sanctioned by judges. But we are not aware of its having been adopted in any other case, where it was the direct point in judgment. No such case was referred to on the argument, and none has fallen under our notice. There are, how- ever, 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 (Conn.) 328; Peck v. Smith, 1 Conn, 103, 6 Am. Dec. 216. But if we look at the action of ejectment, on principle, and inquire . what is its object, it cannot be^justained, on any rational ground. It is to recover possession of the land in question ; and the judgment, if car- ried into execution, must be followed by delivery of possession to the Ch. 1) MODE OF CONVEYANCE 173 lessor of the plaintiff. The purpose for which the action is brought, is not to try Jhe^ mere abstract right to the soil, but to obtain actual pos^ session ; 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 to which the public are en- titled ; and as to the plaintiff's taking possession 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 posses- sionem ^ 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, obstruct- ing the public use. But what benefit would result from this to the pub- lic? 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 pro- ceeding. It is said, in the case in Burrow, that an 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. rThe one is to obtain possession of the land, which is inconsistent with the en- joyment of the public right; an^' 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 re- main 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. Upon the 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. Judgment reversed. 174 DERIVATIVE TITLES (Pa it 2 WATERS V. PHILADELPHIA. (Supreme Court of Pennsylvania, 1904. 208 Pa. 189, 57 Atl. 523.) Appeal from award of jury of view. Before Biddle, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judg ment for plaintiff for $3,00 0. Defendant appealed. Potter, J.* This was an issue framed under an appeal from the finding of a road jury upon a cl aim for damages caused by the wide n- ing of Waln ut street. On the lot now owned by the plaintiff' at tlie southeast corner of l5th street and Walnut, a building was erec ted some thirty-five or forty years ago upon a line about four feet fro m t he street Ime , and the inte rvening space was left open for use and wa s u sed by the public as part^ot the sidewalk. All the other buildings on the block were erected substantially on the same line. On June 30, 1892, an or dinance was passed authorizing the bureau of surveys to revise the city plan so as to make the width of Walnut street confor m t o the line of the buildinp-s erected there^g m ; and on January 15, 1894, in pursuance to the ordniance, the new s outh line o f Walnut street was thus fixed. Plainti ff purchased th e p roperty in question in 1898, and took dow n the oldbu ilding and erected a"new one upon the line estab l ished in 189 4. This practically coincided with the line of the old building, although there is some evidence which indicates a further recession of a few inches. The p laintiff claimed damages for the value of the entire foi ir f eet between the original street line and that established in 189 4. The city claimed that the plaintiff' was entitled to no damages whatever, averring that the former owner had dedicated this four feet of ground to the use of the public. The court instructed the jurv that there w as ji o^ evidence in the case that would iustifv them in findin g thn^ tlipre h a^ been a dedication of the ground to public use , and restricted the jury to the single question of the amount of damages to be awarded. In this we think there was error. There is much evidence in the case tending to show that the strip of ground in question was for many years used as p^rt nf the sidewalk , a nd that the owner made no use of it which would indicate that he re- garded it as ministering in any wav to his special benefi t. There was no door upon the Walnut street end of the building and no steps lead- ing to the street, as the entrance was from the 15th street side. It is claimed by the city, and considerable evidence was offered tending to show, that, during a period of time exferir|in cr fnr many yeart; mn re t han the statutory period "f limitations, t he owner never made any ob- jection to the full and free use of this ground by the public as part of the highway, and never, during that period, made any claim of owner- ship therein. W here there has been long continued use of land as a street by th e public without objection on the part of the owner of the soil, the jury Ch. 1) MODE OP CONVEYANCE 175 may presume_a_valjci dedication. Schenley v. Com., 36 Pa. 29, 59, 78 Am. Decr359. No par Vr^'^^^r fprmnHty I'g rpqnfQitp tf> rnnptitute a dedi- c ation upon the part of the ownef . Any act which clearly indicates an i ntention to dedicate is sufficient. "Proof of the animus dedicandi may be by circumstances, and may rest in pais. One of such circumstances which will be considered eyidence of dedication, is the use of the way by the public, wit h the knowledge and assent of the owner of the soil ; and when such use extends through a long series of years, the animus dedicandi is presumed. The reason of this rule is, that when the own - er of the soil so long acquiesces in the usin g- the wny, havin cr knnwlpdg- p' t hereof, he is estopped lo deny his prior dedication ." Wilson y. Sexon, 2/ Iowa, 15. It was also said, in City of 'Richmond y. Stokes, 31 Grat. (Va.) 713: "Where streets and alleys haye been opened by the owner of the soil and used by the public with his consent for years, a dedica- tion of the easement may be presumed, and the continued and uninter- rupted use with the knowledge and acquiescence of the owner will jus- tify the presumption of a dedication to the pulilic, pr ovided the use h as be en continued so long that priya te rights and public conyen ience might b e materially affected by an interruption of the enjoymen t. But any a cts of owners hi p by the owners of the soil would repel the presum p- t'l^nTZ ~ ' In State v. K. C, etc., R. R. Co., 45 Iowa, 139, it was pointed out that in the strict sense of the term a highway cannot be established by prescription, since there can be no such thing as a grant to the public, but co mmon usage has applied th e term to highways whose existence is b ased upon long use and occupatio n. There are many cases holding that the period required for the stat- ute of limitations to bar the right of the ovyner wo uld from analogy be s ufficient to establish a presumption of de dimtinn from lapse of ti me. Thus Knox, J., says, in Com. y. Cole, 26 Pa. 187: "The use of the ground by the public as a highway for more than twenty-one years made it a public road just as effectually as though it had originally been laid out and opened by the proper authorities." And in Schenley y. Com., 36 Pa. 29, 59 (78 Am. Dec. 359) it is said : "T he period of tw en- t y-one years of enjoyment after which a presumption of a grant is made, is fixed fro'T^ nnnl'"'?)^ tr. tliP <;f.qtiitp ^ f limitations . ' ' There is also abundant authority for the proposition that the owner of the soil ma y be concluded by a user by the publ ic for a .much -shor4er period of time, when th ere arejothe r (j-irrnmst^nc p', from whighthe jn- t ention to dedicate may be inferred. • As in Pittsburg, etc., Railway Co. V. Dunn, 56 Pa. 280, Reed, J., says : " Eight years is quite sufficien t t i me for presuming a dedication of the way to the public. In_a great c ase which was much contested, s ix years was held sufficient, 11 East, ^75 (note) ; and in Jaryis y. Dean, 3 Bing. 447, Chief Justice Best said 'as it had been used for four or fiye years as a public road, the jury were warranted in presuming that it was used with the full assent of the owners of the soil.' " But where it is obyious that a space has been Xf r t/ jf7 ^ -^ 176 DERIVATIVE TITLES (Part '2 (s left open for the accommodation of the owner and not of the public the presumption of dedication does not arise. Gowen v. Phila. Exchange P-o., 5 Watts & S. 141, 40 Am. Dec. 489. And where the owner of j and sets his fence back fro m the highway for his own convenienc e and uses. I t he mtervenmg space until his death for private purposes,"the munici- / pal authorities cannot restrain a subsequent owner of the property, 'even years after the death of the former owner, from setting back the fence to the old line and enclosing the intervening space : Griffin's Ap- peal, 109 Pa. 150. But there the use of the land by the public was sim- ply by sufferance of the owner: in that case Justice Green said (page / -//.^m ^ 155): ^' Dedicatio n i s a matter of intention, and when clearly prov ed, OA*^^i^^^^ /, it is as complete m one dav as in twenty-one year s. Where there is no ^j3£;;^y "prpspT-i^fti^n^ See Jennings \. Tisbury, 5 Gray ('jnass.) 7:j (l!li55'). Prescription in this connection can hardly have quite the same meaning as in the case of the creation of pi-ivate easements, at least in so far as it implies a supposed lost grant. In this connec tion the pre- ^4- sumption is of ii past dedica tion. Thomas v. FordTHSTild. 34^," 52 Am. Hep. oisnssoi: "~ ^ There may be statutes directly applicable to the situation. In California, (jgS "/ /^T\ for instance, there is a statute t hat "all roads used as such fcr a period of ^—"^'^iV. \J^ more thii n \\\c v ears are highwavs T This statute was construed as in "the v ^"^*' nature of a statute of limitations. Bolger v. Foss, 65 Cal. 250, 3 Pac. 871 ^'K'{2^^ ^ (1884). There is a similar statute in Michigan, the period of time specified ^-^^-r* ^ being ten years. 2 Comp. Laws, § 4061. J.'he stat ute, however, docs not . — 2J2I2liLto_a_use^_^^vhich is merely permissive. ^l^Hciney v. Township of Sodus, cJ ^"t/C^^^ 131 Mich. 510, 91 N. W. 745," 59 L. R. A. 287' (1902). y^T^ The owner of a tract of land in the outskirts of a city had the same plat- ted into blocks, lots, and streets. A map was made, showing the arrange- ment, and lots were sold and conveyed with reference to the map. Some of the streets were opened and used. In proceedings by the city to have opened certain other streets shown on the map the owners of lots abutting upon such streets claim compensation. Are they entitled to any? See Quick- sail V. PhiladelDhia, 177 Pa. 301, 35 Atl. 609 (1896); HaiTington v. Man- chester, 76 N. li. 347, 82 Atl. 716 (1912) ; Mayor and City Council of Balti- more V. Frick. 82 Md. 77, 33 Atl. 435 (1895) ; Reis v. City of New York, 188 N. Y. 58, 80 N. E. 573 (1907); State v. Hamilton, 109 Tenu. 276, 70 S. W. 619 (1902). Aig.Pkop. — 12 d v4 ,''f 178 DERIVATIVE TITLES (Part 2 ant below have execution therefor. The present writ of error is sued out for the purpose of reviewing the decree, so entered, which dis- missed the bill for want of equity. /?/? ^•.,/,/ In the bill, the orators therein bein£_ plaintiff in error, Gggrge D , Wormley, and ten other perso ns, who are defendants in error herein wTth the defendant in error, John T. Wormley, alleged that in Feb -_ ruary, 1839, and prior thereto and thereafter^one John H. Wormley was the owner in fee of a certain tract of eighty acres of land in said countv. and also was the owner in fee of other lands particularly de- scribed in the bill; that such other lands so described constituted i n all one-half acre ; that said one-half acre of land so described was generally known as t he "Wormley cemetery," and had been so known and recognized ever since the year 1839; that, in February and June of 1839, two of John H. Wormley 's re latives were bu ried in said one-half acre of land, that in 1845 a brother-in-law of his was biiried on said half acre; that in 1845 John H. Wormley, be- ing the owner of said one-half acre, and of other lands about the same whereon he resided, dedicated by words and acts snid half nrx e for a burying ground for the uses of the Wormley familv. and the ir relatives : Jhat ever sinc e J.8 39 said half acre has been used by t he Wormley fa mily , ^jldj^he neigjjhoriiptjd, for the uses of sepulture; that, since the year 1845^ there have been buried on said dedicated land many persons, the names of about thirty of whom are mentioned in the bill, being of the Wormley family, and relatives of orators; t hat monuments have been erected over the graves of many of saj .d d^ecedents, many of them by orators ; that orators, and other relatives of said decedents, have continued to protect the remains of those buried in said cemetery, and to preserve the identity and memory of their said relatives ; that orators have not in any manner neglec ted to preser ve the monuments, erected to indicate the identity and pr e- serve the memory of their said rp 1ativp<; nr trt giVp anH rnntmiie tO said cemetery the character and name of a burial ground, except so far as th ey have been prevented by John_ 1^. Wormley, the^de^ejid- antj that ttiere were~!hefi, at l:he time^T filing the bill, in said ceme- tery more than eighty graves, cared for and kept by orators, and other relatives of the deceased; tl iat John H. Wormley settled in Osweg o, i n Kendall county, several years before 1839. and resided prf ,a nd o wned the farm on which said cemetery i s located, from the tim e of su ch settlement until the time of his death about th e year 1890; that during all that time he recognized said cemetery, as the burial ground of his relatives and the neighborhood, and a ssisted in maintain inp- t he same as such;^ that, during his lifetime, he. with Qtlifr relati ves qt those buried m said cemetery, caused to be erected and maintained a suitable fence, enclosing said half acre dedicated by hinT~as a ceme - tery; that such fence was kept up by orators, and other relatives of the deceased, until prevented by the defendant in a violent and unlawful manner; that, upon the death of John H. Wormley. the defendant. Ch. 1) MODE OF CONVEYANCE 179 T ohn T. Wormley.^s his son and heir, came into the ownership and p ossession of the farm , on which said cemetery is located, and still owns and possesses tlie same; that, for many years after his coming into such ownership of said farm, he recognized the said cemetery as the burying ground of and for the Wormley family and neighbor- hood, and t hat the sani^e had been dedicated by his father, John H. Wormley , _for such purpose s ; that said cemetery is located on said farm on the line of the Aurora and Oswego wagon road, a nd ingress a nd egress in and out of said cemetery can be had without in any way i nterfering with, or trespassing on, the lands or premises of the de - fendant, John T. Wormley J that lately said defendant has torn down the fence, surrounding said cemetery, and is pasturing cattle, horses, and swine therein ; t hat he has defaced and is defacing, the monum ents a nd desecrating the graves in said cemetery : that he threatens to s hoot and kill any persons, who attempt tofence said cemetery, or care for the monum PTitt; and g raves therein ; that he threatens to enter and remove the monuments therein, and to plow and cultivate the land therein ; that, by threats and force, he prevents orators, and other rel- atives of the buried, from replacing the fence or caring for the mon- uments and graves in said cemetery ; that orators fear that he w ill c arry jTJs_tlire ats into p\'Pl;'}^t^ an^ nnless re!=;l;r nined by the orderof the c ourt. The bill thereupon prays that John T. Wormley may be re- strained by injunction from defacing, or in any manner interfering with, the monuments and graves in said cemetery, or with orators, or any one of them, in fencing said cemetery and preserving the mon- uments and caring for the graves therein, or in any way interfering with the fence or fences of said cemetery, now or hereafter erected ; t hat. , u pon_a^n al he.nrm v ^^ it may be order e d and decreed that s aid descri bed one-half acre of land, known as the " Wormley cemetery ," has bee n dedicate d, t o the Wormley fa mily, and their relatives, and neighborhood contiguous thereto, as a burying ground; that said in- j unction may be made perpetual, and orators may have such oth er re lief as equity m^ y require , etc. MagrudEr, J. First — It is well settled in the United States, that ce meteries are among the purposes, for which land may be dedicated ; and it is held that, upon such dcdicaiiun, the owner is precluded trom exercising his former rights over the land. 5 Am. & Erig. Ency. of Law (2d Ed.) p. 784, and cases referred to in notes. It i s also well settled, t hat a court of equity will enjoin the owner o^ ^land from defacing, or meddling with, graves on land, dedicated to the public for burial purposes, at the suit of any party., having de- ceased relatives or friends buried therein Beatty v. Kurtz, 2 Pet. 585, 7 L. Ed. 521; Davidson v. Reed, 111 111. 167, 53 Am. Rep. 613. In the case of Beatty v. Kurtz, supra, the Supreme Court of the United States, in speaking of property consecrated to cemetery purposes, held that the removal of the memorials, erected by piety or love to the memory of the good, are such acts as can not be "redressed by the 180 DERIVATIVE TITLES (Part 2 ordinary process of law. T he remedy must be so ug ht, if at all, in th e pr otecting power of a court of chancer y; operatmg by its injunc tion to "preser ve the repose of the ashes of tlie dead, and the religious sens i- bilities of the livin<^. " In Davidson v. Reed, supra, two persons, res- idents in the neighborhood of a public burying ground, having friends buried there, filed a bill to enjoin the party owning the tract of land, on which it was located, from defacing the grave, and to preserve the ground for the public use for burial purposes ; and it was there held that they could maintain the bill in their names, for the benefit of themselves, as well as if all others directly interested had joined. I t is also well settled, that no par ticular form or ceremony is n ec- ^ essary to dedicate land for the purposes of a cemetery . All that need ^ be shown to constitute such dedication is the assent of the owner, and the fact that the land is used for the public purposes, intended by the appropriation. Stak ing off ground as a cemetery and allowing burials . therein amounts to a dedication. An express setting apart of land" for"" "such a pUrpose by the owner may constitute a dedication of the land as a burial ground or cemetery. 5 Am. & Eng. Ency. of Law (2d Ed.) p. 784; 9 Id. p. 28; Hagaman v. Dittmar, 24 Kan. 42; Hayes V. Houke, 45 Kan. 466, 25 Pac. 860. It has been held tha t the noto - ri ous use of property for twenty years for burial p '^^'P'"'!^!^ wi*^^"' "^^ acquies cence of the owner affords presump tive ev idence of its ded i- catio n tor such purpo ses. Boyce v. Kalbaugh, 47 JMd. 334, 28 Am. Rep. 464. In Davidson v. Reed, supra, this court held that a dedication of land to the public for any public use may be shown by grant, by user, or by the acts and declarations of the owner, coupled with evidence of acceptance by the public; and that, where there was evidence of an intent to dedicate, no particular form or ceremony is necessary . In Davidson v. Reed, supra, it appeared that the owner of a quarter section of land as early as 1844 buried a child in a comer thereof, since which time the same had always been used by the people of the neigh- borhood as a public burying place, and the declarations of such owner showed an intent to devote the land to such use, and the subsequent owners of the quarter section of land made no objection to such use, but recognized the same as a public burial place ; and it was there held that these facts were sufficient to show a dedication of the land so used to the public for a place for the interment of the dead. In Alden Coal Co. v. Challis, 200 111. 222, 65 N. E. 665, we have ■ recently hel^ that the Statute of Frauds does not apply to dedication of ground to the public, but that the same may be evidenced by acts and declarations without any writing, and t hat no particular form is nec- e ssary to the validity of the dedication , it being properlv a questio n of intention, and that a dedication mav be established by parol . See also Cincinnati v. White, 6 Pet. 440, 8 L. Ed. 452. In Alden Coal Co. V. Challis, supra, we also held that the acceptance necessary to com- plete such dedication may be implied from acts and from user; and Ch. 1) MODE OF CONVEYANCE 181 that, wl ien the dedi cati on is beneficial or greatly c onvenient or np rp<;- s ary to the public, an "acceptance will be implied from slight ciixu m- stancgs^ By comparing the allegations of the bill in the case at bar, as the same are set forth in the statement preceding this opinion, with the allegations of the bill, passed upon by this court in Davidson v. Reed, supra, it will be found that the two cases correspond in all essential particulars. It appears from the allegations of the bill in the present J^ case that, during the lifetirrie of John H. Wormley, the original owner /' of the land dedicated for the purposes of the Wormley cemetery, _he r ecognized the half acre of groun d here in question as a cemetery for ^ I a ^period of about fl f ty^t i£__ ^ars", to-wit, trom l8>^9 to h is~5eath in 1 ^90. During that time he not only buried his own relatives upon this half acre, and permitted others to bury their dead there, but he indi - cated h is- intention tojmake suchdedication. and to continue it, by pos- itive and open acts. He, with others who buried their dead upon the half acre, caused to be erected and maintained a suitable fence, en- closing such half acre. He permitted the persons, who buried their dead there, to erect monuments over them, and to protect and preserve the identity of the remains buried there. The bill alleges that more than eighty persons have been buried in the cemetery, and that their graves have been cared for and kept up by their relatives. John H. Wormley died in 1890, and the defendant, John T. Wormley, his son, for more than ten years after that date, recognized the half acre as a cemetery, and did nothing to interfere with its use as such, until about the time the present bill was filed. The bill also alleges that he has committed acts of depredation upon the cemetery by tearing down the fence surrounding it, and by pasturing his horses and cat- tle and swine therein ; and also that he not only threatens to kill per- sons, who attempt to re-build the fence around the cemetery, or care for the monuments and graves therein, but also threatens to remove the monuments erected to commemorate the dead, and to plow and cultivate the land therein. T he demurrer, filed by the defendant, ad - UTJts all these allegations of the bill to be true .. When the land de- scended to John T. Wormley from his father, he inherited it subject to the rights, which had been acquired in this half acre as* a cemetery. The assent of his father to its use for such purposes is clearly averred in the bill, and it is also alleged therein, and shown, that it was ac- cepted by the parties using it for the purposes, for which it was ded- icated by the owner. Under the facts and under the authorities applicable thereto, we are of the opinion that the court below erred in sustaining the d e- rm]rrpr_tn the biUr ^nd_t hat such demurrer should have be en pver- ruled.^" 10 See Colbert v. Shepherd, S9 Va. 401, 16 S. E. 246 (1892). s 182 DERIVATIVE TITLES (Part 2 CASSIDY V. SULLIVAN. (Supreme Court of Nebraska, 1906. 75 Neb. 847, 106 N. W. 1027.) Albert, C. This is an appeal from a d ecree enjoinino^ the def end- a nts from maintaining a fence on an alleged public road. The defend- ant Babcock owns the sout hwest quarte r of the no rtTTu^est quar ter of a certain section of land, and his codefendant owns the southeast quarter of the northeast quarter of the section adjoining on the west. T he road extends north and south on the section line between t he t wo forty-acre tracts . That the d efgndarga, a short time before the suit was commenced, er ected a fence on the road is not disputed ; t he o nly controversy being the sufficiency of the evidence to show the ex - i stence of a public road. That the county board never made any or- der for the opening of the road is conceded. It does appear, however, that many years ago th e coun ty board entered an order decl aring all s ection lines- within tlie county public roa ds. But as this amounted to a reiteration oi section 46, chapter 78, Compiled Statutes 1905 (Ann. St. 6049), it was mere brutum fulmen, and, of itself, has no bearing on the question at issue. One contention of the plaintiff is that t he alleg ed road is a high - ■ ... — . — ■ 1 — * way by dedication . The evidence seems to bear o ut this contention. It appears that for many years the travel to and from the Black Hills country was al ong trails i n the vicinity of this road. It does not appear to have been confined to any particular track, and as the county was largely unsettled s ection lines were di«;rporar£W j Although it was denied by the defendants, it sufficiently appears tliat^aijiLDSt 2 years ago the defendant Babcock and one through whom the oth er defendant traces his title, and who then owned the Sullivan forty , f orthe purpose 6i inducing the public travel to follow the section lin e b etween their respective tracts, built fences and planted trees o n th eir respective sides of the section line, leaving a space about 66 fe et w ide for public travel, and that thereafter, until about the time of the commencement of this suit, the travel was confined to that space, which has ever since been used by the public as a highw ay .^ Snr h u se has been»uninterrupted, save that about a year before this suit wa s b egun one of the defendants placed a fence on the road, but was direc t- ed to remove it by the county attorney, and did so. It should be re- marked, however, that there is evidence tending to show that the use of the easement was interrupted several years ago by a fence which was maintained for some time. But the evidence on this point is conflicting, and we are not prepared to say that a finding against the defendants thereon is not sustained by sufficient evidence. Taken in i ts entirety the evidence satisfies us that the owners of the land, more t han 15 years ago, dedicated that portion now claimed as a public_ jx>ad t o the public , and the public at once accepted the grant, and, practi- cally speaking, have been in the uninterrupted enjoyment thereof ever it Ch. 1) MODE OF CONVEYANCE 183 since. It is true, there is no evidence that the public authorities ever authorize^ any work on the road, or did any act indicating an accept- ance of the grant. But a dedication, in order to become binding; upon t he dedicator o rjijs^ privies in estate, need not be accepted by the p ub- lic_a utlK)rities , butjiiavJpejL^ceuted b ^^he g eneral^ ixiblic^ The gener al *= — p ublic accepts, as in this instance, by entermg upon the land and en - ^^•'^C^^J^jU*^ jo ying tl)p privil^cTp nff ered. in other words, by user . Streeter v. yiL'UyO, Stalnaker, 61 Neb. 205, 85 N. W. 47; Attorney General v. Abbott, 154 Mass. Z2Z, 28 N. E. 346, 13 L. R. A. 251 ; Rees v. City of Chi- cago, 38 111. Z22\ Alden Coal Co. v. Challis, 200 111. 222, 65 N. E. 665. Considerable stress is laid on the fact that the road in question is connected with no public road at the south, and that it is some 80 rods from the north line of the defendants' lands to a public road with wliich this road would connect at the north ; in other words, that th is r pad is disconnected from all other public roads. In view of the en tire e vidence , th-lt ^^^^ '"'^'^ "'"^ '^pp''in Lgignificanc e. The travel from other public roads to this road is over private property and with the permis- sion of the owners, who, unlike the defendants, are not shown to have dedicated a right of way for the use of the public. When such permission is withdrawn, if the travel over such lands is merely per- missive, the authorities may take the proper steps to establish highways connecting with this road, or, if the road is not required, the proper steps may be taken to relieve the defendants of the burden of the easement. But that has nothing to do with this case. The evidenc e sh gws that t he road is a public highway, and so long as it remain s s uch the detcndants have no right to obstruct it; , It is recommended that the decree of the district court be affirmed. DuFFiE and Jackson, CC, concur. By the Court : For the reasons stated in the foregoing opinion, the dec ree of the district court is affi riTied. » DOWNING V. COATESVILLE BOROUGH. (Supreme Court of Penn.sylvania, 190G. Iil4 Pa. 291, 63 Atl. 696.) Tr espass to recover dam ages for personaHnjurics. Before Hemp- hill, RjT ^"~ ~' ' From the record it appeared that plaintiff was Injured b y falling i n a hole on a sidewalk in the borough of Coatesvill e. There was evi- dence that the portion of the street in which the hole was located had been t hrown open to pub lic use by a former owner of an adjo in- i ng property, but there was no evidence that the strip in question ha d been accepted as a public stree t by the bor ough. • The court entered a compulsory nonsuit which it subsequently re- fused to take off. E rror assigned was refusal t o take off nonsuit. 184 DERIVATIVE TITLES (Part 2 P^R Curiam. The learned judge below conceding that throwing open a strip of his lot as a part of a street to the public for^ number of years, r nay amount to dedicatio n to public use as against the owner, nevertheless states accurately the rule t hat such action by the ow ner >^ c annot of itself make the land part of the street so as to bind the m u- nicipality . Someactofaccept^ce on the part of the municipality must be shown beToreiT'caii be held liable for failure to keep in re- pair, etc., citing In re Alley in Pittsburg, 104 Pa. 622 ; Com. v. Moore- head, 118 Pa. 344, 12 Atl. 424, 4 Am. St. Rep. 599, and Steel v. Bor- ough of Huntingdon, 191 Pa. 627, 43 Atl. 398. Applying this rule to the facts before him the judge said: '^ ou r_^case there was no evidence whatever of the acceptance of this sid e- w alk by the borough by either act or deed ; i t a pparently was thrown o pen to the public street by Miss Perkins tor the r^nv^^^'^nrf ?"'^ ac commodation of her tenants, for on her property immediately north wHere she resides, she still retains her fence along the eastern side of the roadway." Tliis amply sustains the nonsuit. Judgment affirmed.^* OGLE V. CITY OF CUMBERLAND. (Court of Appeals of Maryland, 1899. 90 Md. 59, 44 Atl. 1015.) ScHMucKER, J. This case was instituted by the appellant to re- cover damages from the city of Cumberland for personal injuries sus- t ained by him from falling into a ditch or sewer at the point wherTi t c rossed a road w hich he contends was a public street of tliat city. The facts ot the case are substantially as follows : Prior to the year 1887 persons and vehicles having occasion to pass in either direction between Creek street, in the city of Cumberland, and the basin of the Chesapeake & Ohio Canal, were in the habit o f c rossing in a nsarly direct line over the land of the canal company l y- i ng between the basin and the corner of Creek and Canal stre ets- Early in 1887 the West Virginia Railroad Company acquired this land from the canal company by condemnation , and e rected trestl es and other structures upon it, which prevented its use as a roadway, and thus made it necessary to provide a new way of access to the canal ba- sin from the corner of Creek and Canal streets. In the condemnation proceedings by which the railroad company acquired this land, it was agreed in the presence of the jury, and set forth in the return of the in- quisition, t hat another road, 24 feet wide, extending over the co ndemned 11 In King v. Leake, 5 B. & Ad. 469 (1833), a parish was held properly con- victed under an. indictment for the nonrepair of a road, though there had been no acceptance beyond the public use thereof. The Highway Act of 1835 (5 & 6 Wm. IV, c. 50, § 23), however, prevents the liability of the parish to repair from arising until assent has been given as prescribed. See Cabab^ v. Walton D. C, [1914] A. C. 102. Ch. 1) MODE OF CONVEYANCE 185 l and from Creek street near its intersection with Canal street to the ba- sin, sho uld be "kept open for the use of the canal and the public for passing for all purposes for which a public road is commonly used to and between Creek street and the canal." ■ This new road crossed the railroad track by passing under the trestle which supported the track, and just before passing under the trestle the road crossed the ditch o r sewer into which the appellant fell when he was injured . The appellant kept a saloon in a house near the basin, which he rented from the canal company! He was in jured by falling into the ditch after dark on the evening of February 1, 1894, as he was gomg from Creek street along the new road towards his saloon. He s ued the citv of Cumberland for damages , alleging that this new road was a public street, which it was the duty of the city to keep in repair, but that it had negligently been permitted to be in a dangerous condition, etc. There never was any grant to the city of the new road as a street, nor was there ever any formal acceptance by the city of its dedication to public use, but the' appellant relies upon the facts about to be mentioned as amounting to an i mplied acceptance by the cit y : In January, 1891, the city council, in response to a petition addressed to it by the appellant, o rdered a li ght t o be placed "at or near the railroad crossing under the trestling- of the \ yest Virginia Rai l road leading to the towpath ," and appointed a com- mittee to execute the order. This committee, finding a light already located within 50 feet of the place where the road crossed under the trestle, advised that this lamp be moved into such a position as would throw its light upon the crossing under the trestle; and the council ordered it to be done, but it had not in fact been done when the acci- dent to the appellant occurred. The ditch into which he fell had fo r many years carried the surface water from Creek and other stree ts d own to the canal basin, and on one or more occasions prior to the ac- cident the employes of the city had been seen to clean out the ditch, and scrape the surface of the streets which it drained. In Novembe r, 1 8S6, the city council passed an ordinance accepting an offer of th e r ailroad company to locate its freight depot so as to occupy a po rtion o f the east side of the bed of Canal street at and near its intersection with Creek street, u pon condition that the railroad companv would give t o t he city sufficient land on the west side of the street to maintain its original width. The court below being of the opinion that none of the transactions appearing in evidence were legally sufficient to show an acceptance by the city of Cumberland of the 24-fcot road on which the accident oc- curred, as a public street, granted the prayer of the defendant, taking the case from the jury, and the plaintiff appealed. T here_can be no question that the facts of this case establish a ded i- cation to public use by the railroad companv of the road upon which t he appellant was injured . As between the owner of the land covered by the road, and the public, the latter were entitled to use it as a high- wa}^; but that did not of itself impose upon the city the obligation to 186 DKRivATivE TITLES (Part 2 keep the road in repair, nor make it liable for accidents occurring from the defective condition of tlie road. Before the appellee can be held liable for tlie iniurv for which the present suit was institu ted, it mus t a ppear tha t there h ad been an acceptance by it, through the acts of its authorized ^public departments or officials, of the road on which the ac- c ident happene d, as one o j its p ublic streets. Kennedy v. Mayor, etc., 65 Md. 520, 9 A'tr234, 57 Am. Rep. 346; State v. County Com'rs of Kent Co., 83 Md. Z17 , 35 Atl. 62, 33 L. R. A. 291 ; Valentine v. City of Hagerstown, 86 Md. 486, 38 Atl. 931 ; 2 Dill. Mun. Corp. § 642. These authorities hold th at the acceptance of a street by a municipality "ma v b e either express, and appear of record, or they may be implied fr om r epairs knowingly made or paid for by the authority which has the leg al power to adopt the street or highway, or from long use by the publi c." They also hold that, when public use is relied on to establish the accept- ance, there must have been an uninterrupted use by the public fQ£ _at l east 20 year s, and such use for a less time will be insufficient. It is not contended in the present case that there has been an express municipal acceptance of the alleged street, or a public use of it for more than 20 years ; nor is there, in our opinion, proof of any acts or transac- tions on the part of the city or its authorized officials, in reference to it, affording proper evidence of an implied acceptance. Certainly the oc- casional cleansing of the ditch, and the scraping of Creek and the other streets which it drains, by the employes of the city, can have no im- portant bearing upon the subject; f or it appears from the evidence t hat t he ditch had been in exic;fpnce_ for 40 years before the road wa s opened^ Nor is the fact that the city council were willing to grant the appellant's request to have a light placed near the crossing of the road under the railway trestle important. The appellant himself, although he offered the facts just alluded to in evidence, did not strongly rely upon them in argument ; but he claimed that the leaving open by the railroad company of the new road, in its condemnation proceedings, and the passage shortly thereafter by the city council of the ordinance allowing the railroad company to use a portion of the bed of Canal street, m ust be taken as p arts of a co mmon scheme to a ccommodate both the railroad company and the city, from which an ac"ceptance by the latter of the new road as one of its streets is to be implied. An examination of these two proceedings makes it quite plain that this contention of the appellant c annot be maintain ed. Each of the two proceedings is complete in itself, and neither one refers to, or is de- pendent upon, the other. The condemnation proceedings took away from the canal company the land over which access had theretofore been had to its wharf and basin from Creek street, and the new road was simply provided by the railroad company in lieu of the one taken away. The city was not a party to the conde mnation proceedings, nor does the former road over the condemned land appear t6 havy way of passing a right or mitter le droit : as if a man be disseised, and releaseth to his disseisor all b is r ight, iTereby the disseisor acquires a new right, which changes the quality of his estat£.^and renders that lawful which before was tor- ^ > tious or wrongfuL/^4>.xCy way nf ^vtingni<;hnipnt- as if my tenant for J^^^^<<^ life makes a lease to A for life, remainder to B and his heirs, and I release to A ; this extinguishes my right to the reversion, and shall enure to>fe< advantage of B's remainder as well as of A's particular estate./SyBy way of entry and feoffment: as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former companion ; which is the same in eft'ect as if the disseisee had entered, and thereby put an end to the dis- seisin, and afterwards had enfeoffed one of the disseisors in fee. And 12 See Arnold v. City of Orange, 73 N. J. Eq. 2S0, 66 Atl. 1052 (1907), where the construction of a sewer in a dedicated street by direction of a village ordinance was deemed suthcient to show acceptance. DERIVATIVE TITLES (Part 2 eupon we may observe, th at when a man has in himself the po sses- ion of lands, he must at the common law convev the freehold by feoff - ment and livery ; wlji ch rnak gs ^a notorietyLJn the _countr j ^ : but if a man has only a right or a future interest, he may convey that right or j ,n- l erest by a mere release to him that is in possession of the land : for the occupancy of the relessee is a matter of sufficient notoriety already. Book 2, *p. 324." X. Confirmation BLACKSTONE'S COMMENTARIES. A confirmation is of a nature nearly allied to a release . Sir Edward Coke defines it to be a conveyance of an estate or right in esse whereby a voidable estate is made sure and unavoidable, or whereby a particu- lar estate is increased : and the words of making it are these, "have given , granted , ^ ratified , _appro've d, and confirmed." Book 2, *p. 325.^* ' XI. Surrender COKE UPON LITTLETON. "Surrender," sursum redditio, properly is a yielding up an estate f or l ife or years to him that hath an immediate estate in reversion or r e- mainder . _vvherein the estate for life or years may drown by mut ual agreement between them.^ ° y/^^3^/The co pimon modern quitclaim deed is an outgrowth of the common-law cj eTease. Generally the quitclaim deed has been enlarged into a primary or original conveyance. It s operation, however, is limited to the intpi-{^ , <;|- whir h t he grantor has at the time of~tGe execution of the dee d. 1* In Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. 493, 53 L. Ed. 822 (1909), it was contended that a confirmatory patent from the United States enlarged the rights of a grantee from one of the Mexican states. The court said: "But, while it is true that in Beard v. Federy, 3 Wall. 478, 491, 18 L. Ed. 88 (1865), Mr. Justice Field calls such a patent a quitclaim, we think it rather should be described as a confirmation in a strict sense. 'Confirmation is the approbation or assent to an estate already created, which, as far as in the confirmer's power, makes it good and valid ; so that the confirmation doth not regula rly crea te an e state; but yet such words may be mmgted m the cOhfil'ma[loii,-^gnriiray~cFeate~^nH"'eiilar'ge an es - tate-i but tliat is by tne torce or sucn words tnat are for eign to the biisTness of confirmation? wiiDerr, Tenures (o. it Is not to be underst(X)d that \vhen the United States executes a document on the footing of an earlier grant by a former sovereign, it intends or purports to enlarge the grant." Per Holmes, J. 13 See Heroy v. Reilly, 84 N. J, Law, 671, 87 Atl. 112 (1913). in which su it was brought against a lessee on a contract made with the plaintiff, whereb y the le:;see agreed in case, or a "saie. assignment or transter'^ of the term to pay oyer to the plaintiff one-third of the net profit from such'fgale ot trau s- fgri__^The lessee's administratrix had entered into an arrangement with the CIl. 1) MODE OP CONVEYANCE 189- A surrender properly taken is of two sorts, viz., a surrender in deed . or_b^Ljex£ress_ words, (whereof Littleton here putteth an example,) and a s urrender in law w rought by consequen t by ope r ation of law^ Little- ton 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 i n 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 fu- ture interest cannot be surrendered, because there is no reversion wherein it may drown ; but by a surrender in law it may be _drowned. A s if the lessee before M ichaelmas take a n ew lease for years either t o b egin presently, or at Michaelmas, this is a surren der in law of the f ormer lease . Fortior et asquior est dispositio legis quam liominis. Also there is a surrender without deed, whereof Littleton putteth here an example of an estate for life of lands, which may be surren- dered without deed, and without livery of seisin ; because it is but a yielding, or a restoring of, the state again to him in the immediate re- version or remainder, which are always favored in law. ^ And there is also a surrender by deed: and that is of things that li^ jn grmii- , 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 without deed. And albei t a particular estate be made of land by deed, vet may it be surrendere d without deed, m respect of the nature and quality of the thi rfg demi^^d^ because the particular estate might have been made without 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 ; albe it t here_ the estate begin without deed , yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendered witho ut deedL. 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 re- mainders 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. 337b, 338a.^° lessor whereby the former " waived , gm'tclnlmpd an d surrendered" all rights to a renewal of the lease, and all rights by virtue thereof, and agreed to "a sslgi^. sublease and pnt th e lessor i\] fi]]i fontrnl " retaining the right to c ollect rent.< un t'TTlie date of the exni ration of the lease. The pli^intiflf claimed that this arrangement entitled him under his contract to recover one- third the profit made thereby. 16 See the Statute of Frauds, § 3. supra, p. 157. By the Real Property Act of 1S45 (St. 8 & 9 Vict. c. lOG, § 3) it is provided that surrenders of estates other than those which might by law be created without writing, shall be void at la^, unless made by deed. 190 DERIVATIVE TITLES (Part 2 LORD WARD v. LUMLEY. (Court of Exchequer, 1860. 5 Hurl. & N. 87.) Declaration. — That the plaintiff bY_de£d^ated the 6th May, A. D. 1856, let and demised to the defendant all that building called "H er Majesty's Theatr e." situate in the Haymarket, in the county of Mid- dlesex, for the term of four years and nine calendar months, to be computed from the 25th day of March then last mentioned, at and un- der (amongst other rents) the rents following, that is to. say, tlie rent of il934. 14s. for the first year of the said term, and the yearly rent of £6275. for every of the second, third, and, fourth years of such term, and the sum of i4706. 5s., for the last nine calendar months of the said term, such rents to be payable beforehand, or one quarter in advance, by four equal quarterly payments on each of the first four years of the said term. T hat after the making of the said deed, t he de fendant entered into and upon the said premises, for the said term , and afterwards, during said term, to wit, on the 21st June, A. D. 185 8. the sum of £4569., of the rent aforesaid, for three quarters then elapsed, became and was due and owing from the defendant to the plaintiff, and the same is still in arrear and unpaid. Plea. — That the said deed, by which the plaintiff demised the said premises to the defendant, was made between the plaintiff and th e defendant , and was sealed with the seal of the defe ndant ; and the defendant never was in any way liable to pay to the plamtitt the said rent or any part of it except under and by virtue of covenants made by the defendant with the plaintiff, and contained in the said deed ; which covenants bound the defendant to pay the said rent to th e p laintiff at the times and upon the terms in the declaration particu larly mentioned ; and the defendant never entered upon or occupied the said premises, or any part thereof, except under the said deed so made between the plaintiff and defendant, and sealed with their seals as aforesaid, and containing the said covenants. That after the mak ing of the said deed, and before this suit, the said deed was and now is v^holly c ancelled by and with the assent of the plaintiff and of th e defendan t; and also all th e est ate, t erm , and intere st of the defendant in the said premises was duly surrendered to the plaintiff Ijy act an d o peration of law, a fter the said r ent became due under the said cov e- n ants as atoresaid ana petore tnis su it. Demurrer and joinder therein. " Martin, B. We are all of opinion that the plea is bad. When a man demises land for a term of years, reserving to himself a rent, the effect of it is t o create two estates , viz., the e state of the lesse e. and the reve rsion of the lessor , and The rent is incident to the rev er- sion. When the day of payment arrives, the rent still remains an- nexed to the reversion. Her e, the q u estion is w hether the simply ca n- celling a lease destroys thelfessor's right of action tor the recovery Ch. 1) MODE OF CONVEYANCE 191 of the rent, I am of opinion that it does not, because the cancelling a lease d oes not destroy the estates already vested or their incident s. W ATSO N, B. I am of the same opinion. Where the contract arises from the deed itself, and the deed is destroyed, no action can be main- tained in respect of it. But this case is very different, for here, upon tli (;^ .^ypmtinn nf the deed, there p ^gg'^d ^^'''^''■i thf! ^ssor to tlie lessee a n estate which was not sffpr^^d by the rancellation of the lease . The lessee holds the estate subject to the rent which is incident to the re- version in the lessor. According to the argument for the defendant, he may hold the estate without payment of rent. But the authorities ar e clear that the cancelling a deed does not divest the estate ot t he l essee ^^ or deprive the lessor of his right of action upon the demi se. Martin, B., added : The Lord Chief Baron, who has left the Court, requested me to say that he is of tlie same opinion. J udgment for the plaintiff.-^ ^ ALLEN v. JAQUISH. (Supreme Court of New York, 1839. 21 Wend. 62S.) This was an action of ejectment , tried at the Delaware circuit in May, 1837, before tlie Hon. James Vanderpoel, then one of the circuit judges. On the 25th August, 1834, an agreement under seal was entered into by the plaintiff and John Jaquish, Junior, whereby the p laintiff bound himself to f urnish a mill on a certain stream and as much timber a s could be cut and sawed into lumber and manufactured into shingl es bv Taguish during ten years next ensuing the date of the agreem ent, from certain specified lots ; to keep the mill in rep air, and withm one year to m ake a good road from the mill to the river Delaware — giving by the agreement imr nediate possessio n to Jaquish of the mill, mill-lot and house, and a uthorizing him to clea r as much land as he saw fit. Jaquish on his part agreed to erect two shingle machines and put them in operation in the mill by the 1st June, 1835, to keep them in repair or supply their places, and to saw as much lumber and manu- facture as many shingles as could be made during the stipulated time ; for which privileges he agreed to leave at the mill one-third of all the lumber and shingles which should be manufactured, ^y an ag ree- m gnt endorsed on the above instrument, the plaintiff authorized T a- q ui.sh to have a' jack made at the expense of the plainti ff. In October, 1835, another agreement in writing, but not under seal, was signed by 17 See Beidler v. Fish. 14 111. App. 29 (1SS3); Brewer v. B'ld'g Assoc, 160 (15S8). ~^e Tracy v. Albany Exchange Co., 7 N. Y. 472, 57 Am. Dec. 538 (1852), wherp tiia new lease was to take effect on expiration of existing term. 6^ 196 DERIVATIVE TITLES (Part 2 mised for ninety-nine years, to hold from the day of the date. After- wards, William Bromley, upon the marriage of Francis Bromley, with Ann Walsh, joi ned in a s ettlement_jvar^'' ^"'^s un cle Francis Brom ley, ?)nd_re duced his former e stqtp in fee tn an estate for H fe. Thi s wa s a v oluntary settlement, and had a power in it ; but it was not pretend ed t hat the second lease was made according to that powe r. After this, William rheino- then nnlv tenant for life) in 1693. makes a new le ase f or ninetv-nine years, to the same tenant, of the same premises, wit h- out communicating to the tenant the alteration which he had made of his estate, by rednrin p- his fee to a hte-estate : and this was acquiej ^^d "^ / i n, and the rent paid and received, for sixty yea rs. In the mean time, Y ^ and before any objection was made with regard to these leases, William Bromley died, and his effects came into the hands of Lord Montfort. T he less or of the pla inti ff was tenant in fail under the settleme nt ; and clai med a right to disjjossess the tena nt \lie only question upon which the Court gave their opinion, was — ''whether the acceptance of the second lease operated as a surrend er of*the forrner lease ." Lord Mansfield agreed, that the acceptance of a second good lease will operate as a surrender of a former. But the reason does not hold, in the case of accepting a new void lease, or one that the lessee can't enjoy. In the present case, Mr. William Bromley had probably forgott en t hat he had altere^iis estate m fee to an estate for life; at least, h e did not tell the lessee, that he had so do ne. 'i"he hrst lease was for ninety-nine years from the day of the date : the second lease is for ninety-nine years, to commence immediately; and there is not a word said of the settlement or power. The tenant made a fair contract, bona fide, for a valuable consideration. Thfi-aec- or id lease was a deceit upon him ; for the lessor had no title to gra nt t his new lease. But the present lessor oFthe plaintiff says he sFall lose the former lease too; because the latter is inconsistent with the former ; and he could not hold under both. Where the first could be of no use, if he had had the second ; and both parties so intended; there is no inconsistency in the acceptance of a new good lease being a surrender of the former. But the accepti ng a, new void lease, which the lessee is not to enjoy, could not she\v_an i ntention to surr ender the other^ Therefore, the reason why this should be an implied surrender, totally fails. A void contract for a t hing that a man cannot enjo3^, cannot in common sense and re ason, i mply an agreement to give up a former contract . And Mr. Price has shewn that the law is so ; and that cases of this nature appear to have been grounded upon solid reason, when they are well considered. lam very clearjhat the acceptance of this new lease, which did n ot pass an mterest according to the contract, cannot operate as a su r- r ender of the former. And this is sufficient : I will not enter into any other questions about the other parts of the case. v/ Ch. 1) MODE OF CONVEYANCE 197 T he second lease did not pass an interest according to the contrac t. The plaintiff has no right to recover. I give no opinion whether the acts of the lessor have or have not made the new lease good for the whole of the term. The three other Judges were clearly of the same opinion. Per Cur'. Let the postea be delivered to the defendant; in order that a nonsuit may be enter ed. ^^ ZICK v. LONDON UNITED TRAMWAYS, LIMITED. (Court of Appeal, King's Bench Division. [1908] 2 K. B. 126.) Appeal from the judgment of Jelf, J., in an action tried by him without a jury. [1908] 1 K. B. 611. The action was in form an action for trespass brought by the plain- tiff Zick, who was the oc cupier of a s hop, house, a nd forecourt, num- bered 84, Merton High Street, Wimbledon, and carried on business there as a furniture dealer, t o recover damages from the defend ant C Ompanv for enter ing ^^^^ tregpn'^sing upon the plaintiff's prf"'"''^^"^ r>n March 20, 190 7, and the following days, and for depriving him of the use of the said forecourt and thereby interfering with his business. On the pleadings the defendants, besides putting the plaintiff to the proof of his case, set up the following defence :^hat by the London United Tramways Act, 1902 (2 Edw. VII, c. 247), incorporating the Land Clauses Consolidation Act, 1845, they were authorized to acqui re c ompulsorily the sai djgre court for widening the roadwa y ; that on May 28, 1905, thev se rved notice to treat on Coope and Heatley, t he l easeholders , being mortgagees in possession of the said premises an d forecourtpTor the purchase of their interest in said forecourt ; that at the date of the service of said notice the plaintiff was not the occ u- pi er nor in possessio n of the said premises or forecourt, and had_no in terest therei n; that notwithstanding the service of the said notice, C oope and Heatley purpo rted af ter the date of such service to grj^ ^nt to the plaintiff an mterest m tT j e~said premises and forecourt by mean s of an agreement of tenancy, and that such an agreement of tenanc y was invalid in law against the defendants . ^ * * ^^ 2 2 Roe V. Archbishop of York, 6 East, 86 (1805). ace. See Doe v. Courtenay, 11 Q. B. 702 (1848); Doe v. Poole, 11 Q. B. 713 (1848). Premises were in possession of H. as tenant from year to year when H. and M. agreed to take a lease of same for seven years at a yearly rental ;• the agreement was in writing, but the contemplated lease was never drawn: H. and M., however, entered and held possession for a time, M. then dropping out, leaving H. as sole occupant. No rent having been paid, the lessor took possession and kept S. out. In an action by S. in trespass the question was whether the original tenancy from year to year had been terminated. JJeld, that the fo rmer tenancy had come to a n end by surrender in law^ Hamerton v! b'tead, 8 B. & (J. 4'<8 (1824). ' 23 The statement of the facts and pleadings is omitted ; the case sufficient- ly appears in the opinions. The concurring opinion of Kennedy, L. J., is also omitted. i 1.98 DERIVATIVE TITLES (Part 2 The learned judge gave judgment for the plaintiff. X Sir GorelIv Barnes, President. I am of opinion that the conclu- I sion arrived at by the learned judge is right, and I can put my view of / the case very shortly. An agree m ent was made on March 15. 19 05. '^\j \ b y which Fellowes. as ag ent tor the morteagees in possession of th e ^^ \ premises in question, l et them to one Sinclair for a term of three ve ars. which would expire on March 14. 1908. On May 15, 1905, the defend- I ants served the notice to treat on the lessors' agent. Rv_ _an agreem ent / d ated January 23, 1906, Sinclair, without any knowledge of l h£_notice t o treat, sold to the plaintiff Zick the furnit ure an d effects on the pre m- ises, with c ertain exceptions, and agreed to stand possessed of the lease of the premises in trust fori-hp pb intiff ; and in February the plaintiff entered on the premises. Afterwards, in order that the plaintiff should have not only the beneficial but also the legal possession of the prem- ises, Sinclair informed Fellowes that he desired to trans fer to the pj ain- tjff t he unexpired portion of his tenancy, and Fellowes sai d t hat he t hought he could arrange with his prmcipais tor a surrender of Jj ie e xisting tenancy and the granting of a fresh agreement to the plainti ff f or a term of three years, ins tead of the plaintiff taking a transfer of a term which had only two years to run. The plaintiff accepted this proposal, and accordingly, o n February 14, 190 6, an agreement wa s executed for a new tenancy which would expire on Febru ary 14,~ 1909. Under tnese circumstances the defendants contend that the plaintiff is not entitled to any compensation. The objection taken by the defend- ants to the plaintiff's right to compensation appears to me to be purely technical and to have no merits. The p arties to the transaction, Sin- clair, the plaintiff, and Fellow es^ pntprprj into jlie agreement iff F'^^^''"- a ry 14, i^iJb, for a new tenancy extending beyond the unexpired pej iod o f the former tenancy, thinking, no doubt, that it would operate a s a s urrender of the old term.. But, in consequence of the service of the notice to treat, the m ortgagees in possession of th e premises had no l onger any righ t to create a new tenancy which extended bey ond the period ot ttie existing tenancy . The result, as it apppq|-<; tn rn p^wnnlH b e that the surrender never came into operation bera^ ise the rn nside ra- tion for it failp^T So Sinclair remained entitled to treat the original tenancy as subsisting, and to claim compensation in respect of it as trustee for the plaintiff. The plaintiff appears to have offered to join Sinclair as plaintiff in the action, but it does not seem to have been con- sidered necessary, inasmuch as it was agreed that the real question for decision at the trial was whether the plaintiff, under the circumstanc- es which I have mentioned, was a person who had such an interest as entitled him to compensation in respect of the period extending up to the date on which the original tenancy of Sinclair would have expired. For the reasons which I have given I think that the decision of the learned judge was in substance correct. Ij it be necessary to add Sin- p1;^iV ^g Q p]^\r,uff^ ;n nrrl^r trx nrpf rw^rpr ^f^y teclinical diffJCultV . I thiuk t hat should be. dnn^ . Ch. 1) * MODE OF CONVEYANCE 199 Farwell, L. J. This is i n form an action of trespass , but it is agreed that t he only questio n really involved is whether the pla intiff. Zick is entitleg to compensation^! In March, 1905, an agreement was made under which Sinclair became tenant of the premises in question for a term of three years from March 14 at a yearly rent of £30. In May of the same year notice to treat in respect of the premises was / v^-^^-t^ served on the lessor's agemf After service of that notice the lessors / " co uld create no new interest in the premises sn as to throw any fre sh > .^^-^^-t-^-^ burden on the defendants . In ignorance of the notice to treat S in- * c lair sold to the plaintiff his interest in the premises. Upon his in- forming the lessors' agent that he wished to transfer his interest, _he a nd the plaintiff and the lessors' a o ^pnt rame to the conclusion,t h^t the b etter arrangement would be that the old tenancy should be surren der- ed and a new one created for a longer term, which was accordingly - done by the agreement dated February 14. 1906. That agreement the defendants were entitled to treat as void, and they did so treat it. The law is laid down by Coleridge, J., in Doe v. Courtenay (1848) 11 Q. B. 7^ 688, at p. 712, "t hat, where the new lease does not pass an interes t "f/, ^ , according to the contract, the acceptance of it will not operate a sur- r ender of the former lease ; that, in the case of a surrender implied by law from the acceptance of a new lease, a condition o ught also to b e understood as implied by law, making void the surrender in case th e n ew lease should be made void ; and that, in case of an express sur- render, so expressed as to shew the i;itenti on of the parties to make the surrender only in consideration of the grant, the sound construction of such instrument, in order to effectuate the intention of the parties, would make that surrender also conditional to be void in case the grant . should be made void." If the learned judge in the Court below has not expressed himself quite in the same terms, I think, by what he said on p. 616 of the report in the Law Reports, he meant the same thing. I do not think that he meant to say that the agreement for the new ten- ancy might be remodeled, so as to make the term co-extensive with the remainder of the term under the original tenancy, but that h e acted on t he well-established rule that, where a new lease is gran te d on th e f ooting t hat an ol d lease is surrendered, upon the avoidanc e of the new l ease the surrender is void, the consideration for it having faile d. 1 agree that this ap peal should be dismi ssed.''* 24 See Knight v. Williams, [1901] 1 Ch. 256. t 200 DERIVATIVE' TITLES * (Part 2 SCHIEFFELIN v. CARPENTER. (Supreme Court of New York, 1S3G. 15 Weud. 400.) This was an a ction of covenan t, 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 seah made by him to Ed- mund T. Carpenter, bearing date 1 st April, 182 9, demising a dwelli ng hous e and lot of ground of 5% acres, situate in the twelfth ward of the city of New York, for the t erm of six years, subject to an a nnual ren t of $325, to be p aid quarterly . The lease was a tripartite indenture, Daniel S. Hawkhurst and Daniel Carpenter being parties thereto, and u nking with the tenant in the covenants to be perfom ied on his partj^ and they were joined as defendants in the suit with t he tenant. The defendants, amongst other things, covena nted for the pay - ment of the rent: that the tenant should during the term, keep the dwelling house, fences and every part of the demised premises in good c ondition and repai r, and, at the expiration of the term, yield them up in like good repair ; that he w ould not remove, injure or destr oy any root, plant, bush or tree growing on the premise s, or suffer the same to be done; that~4ie wo uld not underlet or assign the premise s, e ither directly OT'lSy-^aperation of law, without the written consent ol t he landlord : and that during the term, the dwelling house sh ould no t 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 unpa id ; 2. That on the 1st January, 183f, the tenant perrnitted the dwelling house and fences, i&c, t o 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 s uffered fruit trees, gooseberry bushes, aspar agus roots, and ornamental flowering plants growing on the premises t o be lopped, uprooted, removed and destroyed by persons and animals; 4. That from 1st November, 1832, until 1st June, 1833, the dwelling house was us ed and occupied as a public 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 injure them, &c. The plaintiff proved that the premises were in good repair at the date of the lease, and when the tenant went into possession ; and that in February, 1833, the dwelling house was in a ruinous state, the fences prostrated, and the garden wholly destroyed, and that th e expen se of putting the p remises in repair w ould be b etween $400 and $500^ He also proved that the premises had been occupied tor a year by two men Ch. 1) MODE OF CONVEYANCE - 201 of the name of Wood and Matthews, who were rail-road contractors, and had many persons in their employ who resided on the premises. The defe ndant offered to prove that the plaintiff held the demise d p remises onlv in rio'ht of his wife, and insisted that inasmuch as an action of waste might be brought in the name of the husband an d wife in the character of reversioners, the claim of damages for injury to the demised premises ought not to be sustained in the present suit ; the evi dence was rejected by the judg e. The defendants also offered to prove that in tlje autumn of 1831, an agreement w as entered into be- tween the plaintiff, the def endant Edm und T. Carpenter and t wo per - sons of the names of Mills and Owen, that Carpenter s hould quit a nd su rrender up the premises to the plaintiff, t hat the lease declared on s hould be delivered up and cancelled, and a new lease of the premises should be executed bv the plaintiff to Mills and Owen for the term o f 8 or 10 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, a nd Mills and Owen to ok possession of the premises and occupied the same pursuant to such agreement as tenants to^he plaintiff', .who accepted them as such, and r eceived rent from thcnrL That Mills and Owen occupied the premises until the autumn of 1832, when they left, and were succeeded in th e possession by Woo d and Matthews, to whom also the premises were l et by the p laintiff, and from w^ho p he a kn rereived rent : these facts the defendant offered to establish by parol proof. The counsel for the plaintiff objected that parol evidence of the alleged 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, f or the reason that a covenant cannot be discharged by paro l J^ ^ before breach . The judge s ustained t he 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 were occupied by Wood and Matthews, who had a large number of men in their employment as laborers on a rail- road and housed on the premises. Wood and Matthews were in pos- session six months, and paid rent to the plaintiff. 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 in- jury 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 plain- tiff 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^ 202 DERIVATIVE TITLES (Part 2 and requested the judge so to charge the jury. The judge declined to do so, and, on the contrary, c harged the jury that the plaintiff w as e ntitled to his verdict for one quarter's rent, (which was admitted to b e all that was due at the bringing of the suit ;) and, further, that they were n ot bound to limit their verdict on the covenant of repai rs to nominal damages but might give such sum as, under all the c ir- c umstances, they should consider the planititf entitled to recover, pcu - vided thev were satisfied that the defendants had violated their co ve- nants. The jury found a verdict f^-tli£ ^laiiit2ff_\vith $481,25 d am- ages. The defendants ask for a new trial. The cause was submitted on written arguments. Nelson, J. This case has been elaborately 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 surren der J i s defined to be a yielding up of an estate for life or years to TTm T ^ who hath the immediate estate in reversion or remainder, wjierein th e fstate for hte or years may drow n by mutualagreemegt . Comyn's Landlord & Tenant, ZZ7 ; 2 Co. Litt. ddi; ^ (^ruise, i5d; 4 Bacon's Abr. 209; Shep. Touch. 300, 307. Before the statute of frauds and Jj/0 /• perjuries, a ny form of words without writing, whereby an intention ap - »/i>*''^*^Z^ \ peared to surrender up the possession of the pre mi'^pc; tn tlip 1p':;(;;nr L^"^ I or reversioner, was sufficient for that purpos e. This was called a "a) surrender in fact. There was also a surrender in law. It was effecte d i' by the acce ptanc e of a new lease of the premises from the lessor, fo r t he whole or a part of the time embraced in the former one, becaus e i t^ necessar ily implied a determination and surrender of that lease ; otlierwise the lessor would be unable to make^the second, or the lessee to enjoy it, and it was therefore but reasonable to presume both par - ties intenHed to waive and relmquish 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 29 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, &c. made or created by livery and seizin only, ^ b y parol, and no t p ut in writing , &c. shall have the force and effect o f l eases or estates at will only," &c. excepting leases not exceedmg tJi e t erm of three years from the making thereo f. And also, "no leas es, estates or int erest either of freehold or term of years, or anv uncer tain i nterest, &c. oi, in, to or^out ot any messuages. &c. shall be assigne d. g ranted or surrendered, unless by deed or note, in writing, or operatio n of law. " Our statute (2 R S. [1 St. Ed.] p. 134, sec. 6) provides that "no estate or interest in lands, other than leases for a term not exceeding one year, &c. shall hereafter be created, granted, assigned, surrendered, &c. unless by act or operation of law, or by deed or cun- Ch. 1) MODE OF CONVEYANCE 203 veyance in writing-" &c. Sec. 8. " Every contract for the leasing fo r a longer period than one year. &c. shall be void,'' unless in writing. S ^nce these statutes, a parol lease in England for more than thre e years, and in this state for more than one, i s entirely void ; though if the tenant enters into possession, he shall be deemed a t enant at wil l, and for the purpose of notice to quit, from year to year, and n otwith - standing the lease be void, it may regulate the terms- of ho l^jng-^s to rent, time to quit. &c . 5 T. R. 471 ; Comyn's L. & T. 8: Woodf. 14, 15; Bradley v. Covell, 4 Cow. 350; Jackson ex depi. Church v. Miller, 7 Cow. 747. But as a lease for the purposes for which it was given, it is considered wholly void. It is, however, co nclusively settled b y authority, that the second lease must be a valid one, so as to convey, t he interest it professes to convey, to the lessee, and al so to bind him to "j^ t he performance of the" covenant or agreement in favor of the lessor , i n order to operate as an effectual surrender of the hrst one. ■!i Burr. 1807; 4 Burr. 1980, 2210; 6 East. 86; Comyn's Dig. tit. Estate, g. 13 ; 4 Bac. Abr. 215. Without this, the reason before given for the im- plied 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. Now t he ground upon whi ch th e surrender jn this case is mainly argued is,, not that a new lease was given to the original lessee, but that it was given to JMills 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_i s^ impossible to rnaintain that any valid^ lease lias been proved in the case, or any lease whatever for aUefinite period. The most that was offered to be proved was, that Mills and Owen went into possession with the consent of the defendants, under a parol agreement for a lease for eight or ten years ; ajid if it be viewed as- an agreement for a lease . or as a virtual lease for that time^ it is void under fhp t;tatntp , nnd rnnld not be enforced by either of the parties. A n inip l ied tenancy at wi ll o n hLwa s created, which enabled Mills and Owen to hold trom'year t o ):ear ^ror 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 occupation after the commencement of a quarter and before its termination. 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. TIie_authoritii "s alr^n^jj,^ ^pfprrpH tn ( [-lenrly establish that the second lease, to have the effect claimed, must pass the inj^r- 204: DERIVATIVE TITLES (Part 2 e st in the premises according^ to the contract^ or in other words, carr y i nto legal effect the intent of the parties executing it 3 Burr. 1807; 4 Burr. 1980, 2210; Comyn's Dig. tit. Estate, 8, 12; 6 East, 661 ; Van Rensselaer's Heirs v. Penniman, 6 Wend. 569 ; 1 Saund. 236, n. b. 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 Ser- jeant Williams, in his notes upon the case of Thursby 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 t here it is clear it need not be in writing to have the effect to surrender the old one, e v en if by deed . 2 Starkie's Sv. 342; 20 Virrer, 143, L., pi. 1, n. ; 1 Saunders, 236, n. c. I am in - c lined therefore to think that a valid parol lease, since th e sta tute, mig ht p roduce a surrender in law within the reason and prmciple upon wh i^h t his doctrme is founded . The jtrU-?- L^^ seems to be that laid down by Mr. Starkie, 2 Starkie's Ev. 342, as follows: The taking a new l ease by parol is by operation of law a surrender of the old one, al - t hough 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 t he 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 covenants 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. R. 98, 100; 1 Saund. 241, n. 5; Woodf. 278; Cro. Car. 188; Comyn's Land. Si Tenant, 275, and cases there cited. But the plaintiff stipulated against assignment or unde r- etting unless permission was given in writing ; and a parol license is t herefore inoperative. 2 T. R. 425; 3 T. R. 590; 3 Madd. 218; Piatt on Cov. 427. T his clause in a lease would be nugatory, if cou rts s hould allow parol evidence to control in the matter . Besides a parol assignment is void under the statute of frauds. The case of Thomas V. Cook, 2 Starkie's R. 408, is supposed to have a strong bearing upon this one. In that case there was a parol lease from year to year to Cook, who under-let to Parkes. The rent being in arrear, Thomas distrained upon him, and he paid it 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 was 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 afffrmative, 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 les- Ch. 1) MODE OF CONVEYANCE 205 s ee as his tenant- that in point of law puts an end to the privity o f estate., and an action of debt cannot be brought to recover the ren t. 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 ex- press covenant in it, though the privity of estate was gone. Besides, the assignment 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. A ^ain. the court say it is a rule of law, that the accep t- ance of a subsequent lease by parol operates as a surrender of^g . f ormer 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 in- tended 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 necessary 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 dis- pute 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 by him. The facts were submitted to the jury, to presume a rescindment of the original contract between the parties. The case of Stone v. Whiting, 2 Starkie, 235, is precisely like the case of Thomas v. Cook, and stands upon the same principle. In the case of Whitehead 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 agree- ment 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 of equal tenure with the first lease, there was at least no hardship in this decision. The judges obviously were some- what embarrassed in their endeavors to place the case upon princi- ple, 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 jaw seems to be well settled, that under a coveng^nt to repai r l ike the one in question, the landlord need not wait tjll^.the expiration of the term before bringing^ an action for the breacfi,' under an idea 206 DERIVATIVE TITLES (Part 2 t hat the tenant mav. before he leaves the premises, put them in gox )d condition 1 Barn. & Aid. 584; 2 Ld. Raym. 803, 1125; 1 Salk. 141; Piatt on Cov. 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 Cov. 289. The defendant canno t question, in this action, the title of the la nd- lord. , The action is upon an e xpress covenant between the parties, and the suit, if sustained at all, must be by the plaintiff alon e. New tr ial denie d. ^ j ' ; r •-' 1. ' WHITEHEAD v. CLIFFORD. (Court of Common Pleas, 1814. 5 Taunt. 518.) This was an action for the use and occupation of a house , which was tried at the Middlesex sittings after last Michaelmas term, before Mansfield, C. J., when, a fter the Plaintiff had proved that the Defen d- ant had been tenant from year to year of the Plaintiff's house, the D e- fendant proved a parol agreement, that the Plaintiff would give up h is c laim to the rentj _ on the Defendant's giving up immediate possessi on i n the middle of the quarter: both parties accordingly went before a magistrate, and the Defendant then gave up the key, which the Plain- tiff" accepted, and the Defendant was never after that time in the pos- session of the premises. T he Plaintiff sought to recover for a tim e st jbsequent to his resuming the key ; and he insisted that the tenancy was not thereby determmed, by reason of the statute of frauds; and cited Mollet v. Brayne, 2 Camp. 103.^-'^ Mansfield, C. J., reserved the question, subject whereto the j ury found a vjerdict for the Defenda nt. Best, Serjt., in Hilary term, 1814, had obtained a rule nisi to set aside this verdict, and enter a verdict for the Plaintiff. GiBBs, C. J. The cl ause of the statute of frauds v>diich restricts e s- tates created by parol, to three years, has nothing to do with that which requires surrenders to be in writing . In Mollet v. Brayne both parties did not act on the parol notice to quit, but the tenant only. The present action can never succeed. The action for use and occupation 25 In the case cited the defendant had been in possession as tenant under a yearly rent for several months when a dispute arose between him and the lessor; the defendant threatening to quit the premises, the lessor said, "You may quit when you please." The defendant accordingly left a few days later. The lessor sued for rent accrued after defendant quitted the premises. The defendant tendered the rent accrued up to a day after he had left. " Lord Ellenborough was of opinion that the tenancy was not d etermined merely by" the landlord giving the tenant a parol ncense to quit, and th e teji.- ant quitting accordingly ^ At the time tuere was a subsisting term in the premises, and tue statuTe of frauds (St. 29 Car. II, c. 3, § 3) p rovides that n o l ease or term of year s, or a ny uncertain interest * * » shall be s!u r- renaered, unless py d^tJU or UOt^ ih writing, oi- by act and operation of 1^ . ilere there was no aeea or n ote in writin g, and not hing is proved which can be considered a surrender by operation of lavy" (ISOSJI Ch. 1) MODE OF CONVEYANCE 207 depends either upon actual occupation, or upon an occupation which the Defendant might have had, if she had not voluntarily abstained from it. H ere the Plaintiff himself takes possession of the hous e, a nd makes the profit of the premises ; and it was therefore impossible for the Defendant, during the same time, to have used and occupied the premises, if she would. As to the case in Campbell, it is very- different from this, and we do not throw out any opinion against it; but when the like circumstances arise, it will be proper to consider R ule discha rged.^ ° - . d /4:^i^l±fr^f'*^ ' THOMAS V. COOK. (Court of King's Bench, ISIS. 2 Barn. & Al A ction for use and occupation . At the trial of this cause at the London sittings after Trinity term before Abbott, J., it appeared that the pla intiff had originallv let the premises_^ consisting of a house in Long-L.ane t o the defendant ^ as tenant from year to year . After he had resided tliere for some time, the defeqd^pt underlet them to one Perkes. commencing at Christmas 1816. At Lady-Dav 1817. defend.- a^ dji^trained pprke' s goods for rent in arrear . Rent being then due f rom the defendant to Thn mas , the latter gave notice to Perkes no t to pay the rent to the defendant, but to him : and upon Cook's refus- ing to take Perke's bill for the amount then due, the plaintiff agreed to take it himself in payment of the rent due from Cook to him, say- ing that he would not have any thing further to do with Cook. j\n d a fterwards^ in October. 1817. the plaintiff himself distrained the goo ds of Perkes for rent in arrear . The jury found, by the direction of the learned Judge, a v erdict for the defendant, on the ground tha t T homas had, with the assent of Cook, accepted Perkes as his tenant o f t he premises . Topping moved for a new trial. By the third section of the Stat- ute of Frauds, "No lease or term of years or any uncertain interest of I or in any messuages, lands, tenements, or hereditaments, shall bej surrendered unless by deed or note in writing." Now the utmost th at a ppeared on the trial was a parol surrender by Cook of his interes t in the premise^ , and in Mollett v. Brayne, 2 Campb. 103, it was held by Lord Ellenborough that a tenancy from year to year could not be determined by a parol license from the landlord to the tenant to quit, and the tenant's quitting accordingly. The same point was ruled in Doe v. Ridout, 5 Taunt. 519. T hen if this surrender be void the c ase 26 See Phene v. Popplewell. 12 C. B. (N. S.) 334 (1862) ; Millis v. Ellis, 109 Minn. 81, 122 N. W. 1119 (1909). Cf. Oastler v. Henderson, 2 Q. B. D. 575 nc77^ : Newton v. Speare Laundering Co., 19 R. I. 516, 37 Atl. 11 (1S96) ; Smith V. Hunt, 32 R. I. 326, 79 Atl. 826, 35 L. R. A. (N. S.) 1132, Ann. Cas 1912D, 971 (1911). 208 DERIVATIVE TITLES (Part 2 F alls within the autlinn'ty of Bull v. Sibbs . 8 Term Rep. 327, and t he p laintiff is entitled to a verdict . Abbott, C. J. By the third section of the Statute of Frauds, it is 'enacted "Th at no leases, estates, or interests, either of freehold, term s of years, or any other uncertam interest in any messuages, mano rs.' l ands, tenements or hereditaments shall be surrendered, unless b y deed or note in writing, or bv act and operation of law T' And the question in this case is, whether what has been done will amount to a su rrender by act and operation of law . Now the facts of the case re these. The plaintiff Thomas had let the premises in question to the defendant as tenant from year to year, and the def endant underl et them to Perkes. The rent being in arrear, the defendant, 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 circumstances the plaintiff' had not, witli the as- sent of Cook, accepted Perkes as his tenant of the premises, and the \ jury found that fact in the affirmative. T jhjnk , therefore , this amnn nt- e d to a ya lirl <^^irrpndpr ^^ Cook's interest in the premis es, being a sur- render by act and operation of law. The consequeTice is that" the plaintiff can have no claim for rent against the present defendant, arid that the verdict therefore was right. BaylEy, J. If a lessee assigns over his interest, and the lessor ac- cepts the assignee as his tenant, t he privity of estate is thereby de - s troyed, and on that ground it is not competent for the lessor to brin g d ebt agamst the lessee . Where, indeed, the contract is by deed, there he may bring covenant by the Statute of Hen. VIII. In this case, the landlord has ac cepted Perkes as his tenant, and must be consi dered t o have made his election between Perkes and Cook . And the case of Phipps V. Sculthorpe, 1 Barn. & Aid. 50, is an authority to she.w that the plaintiff has no right to recover. This was a surrender of Cook's interest in the premises by act and operation of law, and the j ury were quite rig^ht in presuming that Cook harl agQpntpd_lQ_iJ2 ^ a cceptance of Perkes as tenant to the plaintiff: for that assent w as c learly for Cook's ^b enefit. HoLROYD, J. It appears from the Statute of Frauds, that a sur- render in order to be valid, must be ei ther by deed or note in writing or by act and operation of law^ In Mollett v. Brayne, 2 Campb. 103, there was only a parol surrender, and no circumstance existed in that case which could constitute a surrender by act and operation of law. But injjiia_j:aae, -tbere is not merely a declaration by the plainliff, th _aj- he will no longer consider Cook a -^ hi-^ tenant, hnt there is also the a cceptance by him of another person as the tenant, and that acceptance I S assented to by Cook . Now, if a lease be granted to an individual, • and there be a subsequent demise of the premises by parol to the same Ch. 1) MODE OF CONVEYANCE 20^ person, that will amount to a surrender of his lease. Then the cir- cumstances of Cook having first put in another person as undertenant, and having afterwards assented to a second demise by the plaintiff to that person, will in the present case amount to a virtual surrender of his interest by act and operation of law. Notwithstanding ther e- f ore the third section of the Statute of Frauds, I am of opinion, tha t t he facts here found by the iurv amount to a valid surrender of Co ok's i nterest ^ a nd a re-demise of the premises by the plaintiff to Perke s. In that case there will be no ground for disturbing the present verdict. Rule refused.^' WALLS V. ATCHESON. (Court of Common Pleas, 1826. 11 Moore, 379.) This was an a ction for assumpsit, for use a nd occupation . The cause was tried before Lord Chief Justice Best, at the sittings at West- minster, in the present Term. The pla intiff, a widow, let to the defendant part of a furnished hous e i n Manchester Square, at the rent of sixty-five guineas, for one yea r c ertain, from the 14th of September^ 1824. The defendant q uitted at e nd of the first quarter, viz. on the 14th December, p aying ren t up t o that day. About three weeks afterwards, the plaintiff let the apart- ments to . another person, at the rent of one guinea per we ek. At the expiration of the second quarter, the plaintiff se nt in an account to t he defendant, charging him for a quarter's rent according to the t erms of the original takmg, deducting the sums received from^ the p erson to whom she had re-let the apartments , and making the de- fendant debtor to her for the sum of £7. 5s. Od. ; which sum the_ de- f endant paid . The second tenant quitted in the beginning of July, 1825, from which time, until the 14th of December following, the apa rtments remained vacant . The plaintiff accordingly brought this action, to recover from the defendant, £21. Os. 6d., the balance of rent due to her from him, by the terms of the original letting. His Lor dship, being of opinion, that, by letting the^ apartment s_to a nother, the plaintiff had rescinded the previous contract with t he d efendant, directed a nonsuit . Mr. Serjeant Vaughan now applied for a rule nisi, that the nonsuit might be set aside and a new trial had. * * * Lord Chief Justice Best. By her own act, the plaintiff prevente d th g^ defendant fr o m occupying these premises. S he let them to ano yier 2 7 See Walker v. Richardson, 2 M. & W. 882 (1S37); Lynch v. Lynch, & Ir. Law Rep. 131 (1843) ; Creagh v. Blood, 8 Ir. Eq. Rep. 688 (1845). Cf. Decker v. Hartshorn, 60 N. J. Law, 548, 38 Atl. 678 (1897). Aig.Prop. — 14 210 DERIVATIVE TITLES (Part 2 t enant. Ca n a landlord have two tenants , and be rp rpivino- rent-icnm o ne, and at the same time holding the other liab le? The case of Mol- lett V. Brayne is altogether distinguishable from the present. In White- head v. CHfiford, 5 Taunt. 518, it was held, that, if a landlord, in the middle of a quarter, accept from his tenant the key of tlie house demised, under a parol agreement, t hat, upon her then living up the p ossession, the rent shall cease, and she n ever afterwards occupies the p remises, he cannot recover, in an action for the use and occupatio n o f the house, for the time subsequent to his accepting the key . Lord Chief Justice Gibbs there said : "In Mollett v. Brayne, both parties did not act on the parol notice to quit, but the tenant only. T he pres - e nt action can never succeed . The action fo r us e and occupation jde- p ends. either upon actual occupation, or upon an occu pation whirh th e, d efendant might have tiad. jf sliH had not voluntarr[yabstained- £rom i^ Here, the plaintiff himself takes possession of the house, and makes the profit of the premises ; and it was therefore impossible for the defendant, during the same time, to have used and occupied the prem- ises, if she would." I think both law and justice are with the defend- ant. Mr. Justice Park. I am of opinion that my Lord Chief Justice p roperly nonsuited the plainti ff; and that there is no colour for call- ing upon us to disturb that nonsuit. The case of Mollett v. Brayne is very different from the present: there, the tenant had a subsisting term, which could not be determined by a mere parol surrender. Here, t he plaintiff, by her own act, rescinded the contract with the defen d- ant, and dispensed with the necessity of a surrender . In Redpath v. Roberts, the landlord had only offered to let the premises, but had not in fact let them : thus there was nothing to obstruct the defend- ant's occupation of them, had he been so minded. In Lloyd v. Crispe, 5 Taunt. 257 the lessor having, by receiving rent from him, assented to the occupation of an assignee, he was held, by Sir James Mansfield, to have waived the necessity of a license for the subsequent assign- ment, notwithstanding a covenant in the lease, that the premises should not be assigned without the licence of the lessor. In Whitehead y^ Chfford, the plaintiff, the landlord, had accepted the key, and thus the tenant was prevented from occupying tlie house. So, here, the c on- d uct of the plaintiff in re-letting the apartments, signified as complete a n acquiescence m the tenancy being determined, as could be con- v eyed bv the acceptance of the key. Mr. Justice Burrough. If the tenancy on the part of the defend- ant in this case were to be considered a continuing tenancy after the period at which he ceased to occupy the premises, the letting of them to another person was, on the part of the plaintiff, a tortious act; it was in the nature of an eviction. I think the case discloses abun dant evid ence that the contract was put an end to with the asse nt of lEhe pfaintlffherself. Ch. 1) MODE OF CONVEYANCE 211 Mr. Justice GasEleE. If the plaintiff had given the defendant notice, that, if he would not occupy tlie apartments himself, she would let them to another tenant, on his account, the case would have been different. Un der the circumstances, I sec no reason for di sturbi ng t he nonsuit . Rule refused.^* GRAY V. KAUFMAN DAIRY & ICE CREAM CO. (Court of Appeals of New York, 1900. 1G2 N. Y. 3SS, 56 N. E. 903, 49 L. R. A. 5S0, 76 Am. St Rep. 327.) Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entei^ed May 5, 1897, affirm- ing a judgment in favor_ol. plainti ff_entered upon a decision of the court at a Trial Term, a jury having beefi waived. ' This action was br ought to recover two months' rent of the prem ises knn^,vn ^^Nn 7f^ 7 Eighth avenue, in llie rity nf New York . In July, 1893, the plaintiff let the said premises to the defendant f or ten yea rs from August 1st, 1893, at the ye arly rental of $2,40 0, pay able mon thly in advance, and also the ex tra water rent charged against the defend- ant for its business. The defendant to ok possession about July, 1893, and pa id rent tn Nnvpmhpr Kf, 1893 , h '^^ refused to pay for the months of November and December of that year, the rent of which became due and payable on the first days of those months respectively. T he answer, in effect, admits the making of the lease, but denies an y i ndebtedness under it and sets up the eviction of the defendant, a_ sur - render and rescission of the lease, and claims credit for the rent r e- c eived from the undertenant. On or about the 28th or 29th of October, 1893, the plaintiff had a conversation with Mr. Kaufman, the president of the defendant, upon the demised premises. The plaintiff's version of this conversation is as follows : "They were pulling up the store and the things, and were going to move out. They had not said anything to me about moving out prior to that time. I asked Mr. Kaufman what he was doing, pulling up the store. He said he was going to move out, and I asked him why, and he said because he couldn't make any mone}'', and I told him that he had a lease on it, and that I would hold him responsible for the rent if he went out. 'Well,' he says, '1 am moving out, I don't want to stay where I don't make my rent.' " T he defendant moved out and sent the kevs of the store to the plainti ff b y mail. Plaintiff received them about the 2d of November, 1893. 2 8 See, also, Nickells v. Ather.stone, 10 Q. B. 914 (1847); Haycock v. John- ston, 97 Minn. 2S9, 106 N. W. 304, 114 Am. St. Rep. 715 (1906); Rogers v. Dockstader, 90 Kan. 1S9, 133 Pac. 717 (1913); Hotel Marion Co. v. Waters (Or.) 150 Pac. S65J1915). "212 DERIVATIVE TITLES (Part 2 On the 3d of November, 1893, plaintiff served upon the defendant a notice of which the following is a copy : "New York, November 3, 1893. "To the Kaufman Dairy & Ice Cream Co. : "Yesterda v I received the keys of 787 Eighth Av f^^ii^ ^y "injl^ I hereby notify you that I do not accept a surrender of the premises, and t hat 1 intendto hold y ^u rf'^P'^^'^i^^f- f or the rent under tlie leas e. _ I s hall let the premises on your a ccount, and hold you for anv loss wh ich m ay be sustained. "Yours, etc., John Gray." The defe ndant made no answer to t his notice. On the 17tli of No- vember, 1893, the plaintiff went to Kingston and saw Mr. Kaufman, the president of the defendant, Mr. Spore, the secretary, and a Mr. Bruin. The pl aintiff asked Mr. Kaufman for the November rent, a nd t he latter replied that no rent was due ; that he had not made a le ase ; t hat there was nothing due and he would not pay ; that he had given up t he store and plaintiff could do what he liked withit . Thereupon the plaintiff started for home. The president and secretary of the defend- ant went to the railway station and there h ad a conversation with_t he pl aintiff about compromising the matter bv taking the cellar of said p remises for fifty dollars a month for the term of the lease if th e plaintiff would cancel the same as to the rest of the premise s. The plaintiff' said' he would think over the matter and see what he could' do with the remainder of the property, and let them know. The plain- tiff' testifies that thereafter, and on the 27th of November, 1893, he wrote to the defendant as follows : "Kaufman Dairy & Ice Cream Co. : "Gentlemen : I have an offer for the store you leased from me, 787 Eighth Ave. the parties will pay $1,500 to the first of May and $1,600 for three years from May. I think this is about as good an offer as can be expected, considering the times. P lease let me know if you w ill k eep the cellar and pav the dift'erence between the $1.jOO and $2.400 t o^jSIay, and $1,600 — ^2,400 after . An early reply will much oblige. "Yours respect., J. Gray, 323 Washington Avenue." The plaintiff further testifies that he inclosed this letter in an en- velope directed to the defendant at Kingston, N. Y., deposited it pre- paid in the post office at Brooklyn and recei ved no reply the reto. Tlie d efendant had tenants in the cellar when it left the premis es . Thes e te nants attorned to the plaintiff . On or about the 1st of December, 1S93, plaintiff let the premises which had been previously demised to the defendant to one Mary Ann Keogh for the term of three years and fi ve months at an annual re nt ot ^l, :)UO per year tor ihe tirst hve months, and $1,600 per ^^r for the remamnig three years, to be paid in equal monthly installments in ad - v ance. The defendant pleaded eviction, but gave no evidence upon that sub- ject, and upon the trial admitted that it had no excuse for leaving the Ch. 1) MODE OF CONVEYANCE 21o premises. Kaufman admitted having a conversation with the plaintiff before the defendant left the premises, in which the plaintiff stated that he would hold the defendant for the rent, but denied that he, Kaufman, had stated that the defendant would not stay where it did not make any money. Kaufman also admitted the receipt of the letter dated No- vember 3d, but both he and Spore denied receiving the one dated No- vember 27th. Both admitted the conversation testified to by the plain- tiff as having taken place at Kingston, and Spore testified that on that occasion Kaufman stated distinctly that the defendant did not owe any rent ; that it had given up and surrendered the premises ; that there was some talk at the railroad station about renting the cellar from tlie plaintiff at fifty dollars per month during the term of the lease, but there was nothing said in that conversation about plaintiff's reletting the premises on defendant's account. Abraham L. Gray, a son of the plaintiff, testified on the latter's behalf that he went to Kingston with his father to see Kaufman and was present at the conversation at the railroad station. He testified that Mr. Spore offered the plaintiff fifty dollars a month for the basement if he would let the defendant off on the store, and the plaintiff replied that he would think it over and let them know. T he lease to the defendant contained no provision again st s ubletting, except for "any saloon or liounr busmess. and_con- tained no provision for a reletting of the premises by th e plaintiff i n case the defendant vacated tlie same during the term of the lease . After the evidence was all in, tbe parties waived the jury and sub- mitted the facts to the court for decision. The defendant admitted its liability for the November rent, but claimed that it was released as to the December rent by the reletting of the premises to said Mary Ann Keogh on the 1st of December. Upo n these facts the court foun d^iat t he plaintiff" was entitled to recover rent for the mont a nd December, less the amo unt re ceived from the t he plaintiff refused to accept a surrender of the p remises were at no time surrendered to the plaintiff, and that the r e- le tting of the premises was done with the assent of the defendant. Werner, J. This controversy arises out of the conventional rela- tion of landlord and tenant under circumstances governed by fixed principles of law. The first and most important question in the cas e is whe ther the plaintiff^s reletting of the premises deicribed in the lease , f a ?terthe defendant's attempted surrender of the same, changed or af - ' ie cfed the legal status of the parties under the origina ljease. It is so well settled as to be almost axiomatic that a surrender of premises is created by operation of law when the parties to a lease do some act so i^. x ^^ ^^ in consiste nt with the subsisting relation of landlord and tenant as to ^ i mply that they have both agreed to consider the surrender as mad e, y^'^^/v'-*'***^ It has been held in this state that "a surrender is implied, and so effected by operation of law within the statute, w hen another estate is create d b y the reversioner or remainderman with the assent of the termor in- c ompatible with the existmg state or term ." Coe v. Hobby, 72 N. Y. he court loun d^iat jnths of Noveinl jer /f)^^ ^f^Ztt iinderfennnts; thnt Un^ ^ premises : that th e ' 214 DERIVATIVE TITLES (Part 2 145, 28 Am. Rep. 120. The existence of this rule has been recognized in this state in Bedford v. Terhune, 30 N. Y. 453, 86 Am. Dec. 394; Smith. V. Kerr, 108 N. Y. 36, 15 N. E. 70, 2 Am. St. Rep. 362; Under- hill v.^ColHns, 132 N. Y. 271, 30 N. E. 576, and in other jurisdictions in Beall v. White, 94 U. S. 389, 24 L. Ed. 173 ; Amory v. Kannoffsky, 117 Mass. 351, 19 Am. Rep. 416; Thomas v. Cook, 2 Barn. & Aid. 119; Nickells v. Atherstone, 10 Ad. & El. N. R. 944; Lyon v. Reed, 13 M. & VV. 306, and Washburn on Real Property, vol. 1, pp. 477, 478. It is conceded that defendant's offer of surrender was declined by the plain- tiff, and that after the defendant's abandonment of the premises the plaintiff relet the same in his own name to one Mary Ann Keogh for a term of three years and five months. S uch a situation, unqualified by: o ther conditions, would create a surrender by opera t ion nf law. We n iust, therefore, ascertain whether the conduct of the parties takes this case out of the operation of this r ule. it is urged by the learned counsel for the plaintiff that the reletting was done with the consent of the defendant under circumstances which bring the case directly within the rule laid down by Judge Haight in Underbill v. Collins, 132 N. Y. 270, 30 N. E. 576. In that case the landlord and tenant had a conversation a few days before the latter va- cated the premises. The tenant asked the landlord to take the same off his hands. This the landlord declined to do, insisting that he would hold the tenant for the rent and would lease the premises for his bene- fit. In the case at bar there was also a conversation before the prem- ises were vacated ; but in this conversation there was nothing said about a reletting. The plaintiff" simply said that he would hold the de- fendant for the rent. On the 2d of November, 1893, a day or two after defendant's removal, the plaintiff received the keys of the premises.. He returned them with a note stating that he would relet on defend- ant's account and hold it responsible for any loss that may be sus- tained. To this note the defendant made no reply. On the 17th of November, 1893, the plaintiff and his son went to Kingston and saw Kaufman and Spore. In the conversation which took place between them and the plaintiff there was no suggestion of reletting. The plain- tiff" made a demand for tlie rent which was unpaid, and the defendant made an offer of compromise, under which it agreed to take the cellar of said premises at fifty dollars per month if the plaintiff would cancel the lease as to the store. This offer the plaintiff agreed to consider. On the 27th of November, 1893, the plaintiff wrote to the defendant that he had an oft"er for the store of $1,500 per year to the first of the next ensuing May, and $1,600 per year for three years thereafter. He requested the defendant to let him know if it would keep the cellar and pay the difference between the rent fixed by the lease and the amount offered by the intending tenant. To this letter tlie defendant made no reply. It will be observed from this brief resume of the facts that there are several distinct features in which this case differs from the Underbill Ch. 1) MODE OF CONVEYAXCB 215 Case. In the latter case there was a personal interview before the tenant had vacated, in which the subject of reletting the premises was discussed. He re the subject of reletting Avas not mentioned until afte r t he tenant went out, and then the suggestion came in a letter to which t he defendant made no reply . Obviously the only theory upon which the defendant can be held to have assented to the reletting of the prem- ises is that by its silence it acquiesced in the act of the plaintiff. We may assume, although we do not decide, that if the communications upon the subject of reletting had been made verbally in the course of conversation between the parties, even after the tenant had vacated the premises, the rule as to agreements by implication laid down in the Un- derbill Case might be held to apply. But here, as we have seen, the l andlord's propos al to relet was in the form of two letters . In the first of these, dated November 3d, he makes the unequivocal assertion that he will let the premises on defendant's account, and will hold it for any loss that may be sustained. Defendant's failure to reply to this letter is followed by a personal interview on the 17th of November, in which there is no reference to a reletting of the premises, and in which de- fendant's president, after denying any liability for rent, tells the plain- tiff to do what he likes with the premises. Then follows the letter of November 27th, informing the defendant of the offer which the plain- tiff had received from an intending tenant, and asking defendant if it would pay the difference between the amount offered and the rent re- served in the original lease. It will be observed that, even if we were to give these written com- munications the same force and effect as verbal statements made in per- sonal interviews between^the parties, the facts here are easily differ- entiated from those in the Underbill Case J T here the tenant vacated the pr emises upon the oft'er of the landlord to relet for his benefit nnd nn- d er such circumstances as tn permit the infe rence that he accepted t he o ffer. Here the landlord's statement to that effect, made after the ten- ant's abandonment of the premises, is followed by negotiations in which the tenant expresses a willingness to keep the cellar at fifty dollars per month if the landlord will cancel the lease as to the rest of the premises. These steps are succeeded by a communication from the landlord, in which he requests the tenant to decide whether it will keep the cellar and pay the deficit which will arise by an acceptance of the offer which the former then had under consideration. It may well b e d oubted whether ver bal declarations made in personal jntprvipw; h p- t ween the partie s, u nder the circumstanc e*' nhnvp na^rfitfr], wnu 1 d s upport the plaintiff's theorv of this action . To create a contr act by impii^ation^.lh ^rernust be an un equi vocal and unq iii Tlfie^asser| lQ^_of a ri^liO y\ one qf ^jh e parties. aaSTiuc h silence bjY_ _the-Qther_^as^ to-sup- poji^theJ^^alJjiipi^ilcejoijTi^^ But it is clear, both upon principle and authority^ that we have no right to indulge in the assumption that the letters above referred to have the force and effect of verbal statements made in the presence of 216 DERIVATIVE TITLES (Part 2 the defendant's officers. The rule is precisely to the contrary. It is well expressed in Learned v. Tillotson, 97 N. Y. 12, 49 Am. Rep. 508, as follows : "We think that a distinction exists between the effect to be given to oral declarations made by one party to another, which are in answer to or contradictory of some statement made by the other party, and a written statement in a letter written by such party to an- otlier. It may well be that under most circumstances what is said to a man to his face, which conveys the idea of an obligation upon his part to the person addressing him, or on whose behalf the statement is made, he is at least in some measure called upon to contradict or ex- plain ; but a failure to answer a letter is entirely differe nt. ^nd ther^ Js n o rule of law which re quires a person to e nter into a correspondenc e with another in referenc etoa matter m dispilte between them, or which holds that silence should be regarded as an admission against the pa rty t o whom the letter is addressed. Such a rule would enable one party to obtain an advantage over another and has no sanction in the law." To the same effect are Bank of B. N. A. v. Delafield, 126 N. Y. 418, 27 N. E. 797, and Thomas v. Gage, 141 N. Y. 506, 36 N. E. 385. I t is man ifest^heref ore, that the act of the plaintiff in reletting_ said p remises under the circumstances referred to operated as an" acceptan ce of the defendant's oft'er to su rrender. The judgment herein can be sup- ported upon no theory that is consistent with the established rules of law. As the views above expressed are decisive of the case, it is un- necessary to discuss the other questions raised by the defendant. The ju dgment of the court below slio uld be reversed and a new trial granted, with costs to abide the event. Landon, J. (d issenting). The trial court found that "Plaintiff refused to accept a surrender of the premises, and did not accept it, and the premises were at no time surrendered to the plaintiff". The le tting of the prem ise s was done with the assent of the defenda nt." The order of affirmance by the Appellate Division does not state that it was unanimous, but tliat is not important here, for the record con- tains evidence tending to support the findings. The evide nc e tends to s how that the defendant inten ded by its conduct to threaten the plain - tiff with the loss of his rent, and thus to c oerce him to relet the ^prein- i ses, a nd then deny its assent^ j iotwithstanding after its receipt of the plaintiff's first letter, it t old the plaintiff he could do as he liked wit h t he premises . The defendant thus replied to the plaintiff''s letter, at least so the trial court, in view of all the circumstances, might find, and did find. Parker, Ch. J., and Gray, O'Brien and Haight, JJ., concur with Werner, J., for reversal. Landon, J., reads dissenting memorandum. CuLLEN, J., not sitting. Judgment reversed, etc.** -JLs^-l 2» See Welcome v. Hess, 90 Cal. 507, 27 Pac. oG9, 25 Am. St. Rep. 145 (1891) ; Pelton v. Place, 71 Vt. 4J|J^4y Atl. 63 (1899). (\0 eJ-^'^ Ch. 1) MODE OF CONVEYANCB 217 ■' -^ OLDEWURTEL v. WIESENFELD. (Court of Appeals of Maryland, 1903. 97 Md. 165, 54 Atl. 969.) Briscoe, J.'° On the eighth day of June, 1900, the appellees in- stituted a suit in covenant in the Superior Court of Baltimore City, against the appellant, to recover rent due and owing i inrlpr a l easp dafa 4 t he 1st day of April, 1895, f or a store and dwelling known as No. 50 7 South BroaHwa y , Baltimore . The lease is in writing and is fully set out in the record. The property was rented for the te rm of five year s, beginning on the first day of April, 1895, and ending on the 31st day of March, 1900, at $ 900 per yea r, paya ble in equal monthlv installmen ts on the fi rjt day of each and every month. It was provided by the terms of the lease that its provisions and covenants should continue in force from term to term after the expiration of the term mentioned therein, provided the parties thereto or either of them could terminate it at the end of the term, or of any year thereafter, by giving at least ninety days previous notice thereof in writing. I t was further provided, in rase t he rent should be ten days in arrear and not paid when the same shoul d become due, then the lessor may re-enter and take back the premi ses without demand. There was no covenant in the lease for making re- pairs to the premises. The declaration states that the sum of six hundred and five dollars was due and unpaid for rent with interest from April 1st, 1900, over and above all discounts, according to the following bill of particulars, which was filed, on demand, in the case. Bill of Particulars. Mr. Henry Oldewurtel to Bernard Wiesenfeld and Joseph Miller, Trustees of the Estate of Betsey Wiesenfeld. To 5 years rent of No. 507 S. Broadway, at $900 per year, as per lease of April 1st, 1895 $4,500 Ofl Less $10 per month, waived for the months of Aug., Sept., Oct., Nov. and Dec, 1897, and Jan., 1898, respectively 60 00 $4,440 00 Credits. By cash from April 1, 1895, to June 1. 1898 $2,865 00 By Hughes & Co., from Sept. 1, 1S9S. to Jan. 1, 1899 280 00 By Wheeler & Hughes, from Feb. 1. 1899, to Aug. 1, 1899 370 00 By C. Walmacher, from Oct. 19, 1899, to March 31, 1900 320 00 $3,835 00 To balance 605 00 The undisputed facts of the case out of which the controversy arose briefly stated are these: The defendant, the lessee, continued in po s- 3 The portion of the opinion relating to the correctness of the form of action is omitted. 218 DERIVATIVE TITLES (Part 2 s ession of the demised premises until Tune 1st, 1898. when he paicL the rent to that date and left the key at the office of tlie plaintiff in his ab - sence^ stating to the clerk "that he had moved out the house and here was the key." On June 2d, the next day, the plaintiff wrote him the following let- ter: "Henry Oldewurtel, Esq., "Dear Sir : I have been informed that you left the key of No. 507 South Broadway at my office. I beg to notify you that I refuse to ac- cept t he key and that it is still at my office a t your risk and'dispos al. I als o hereby no tify you t hat we will hold yo u subject to all the cove - nants of the lease, executed by you. 'Wery truly yours, ' Bernard Wiesenfeld." The plaintiff not receiving a reply to the foregoing letter, a second letter dated June 3, 1898, was written the defendant as follows: "Henry Oldewurtel, Esq., "Dear Sir: I herein beg to notify you that I int end to make an ef- f ort to get a tenant for the premises known as NoTbO/ South Broad - way, without abandoning anv rights. Mr. Miller and myself as execu- tors and trustees may have against you as tenant under our lease to you for rent. In case we get a tenant we will allow you credit for such rent as we may collect, and hold you for the balance as due under your lease. "Yours truly, Bernard Wiesenfeld." S ub ^equently a sign was put in the window of the premises that the p roperty was for rent , . and it was rented from time to time, and the d efendant credited with the rent to the date of the expiration of th e lease. The plaintiff's testified that they refused to accept a surrender of the premises, never made any alteration of the original lease, by a subsequent agreement, and never ousted the defendant from the prem- ises, and that necessary repairs were made to the property. The de- fendant, on the other hand, testified that he vacated the property be- cause it had been condemned by the building inspector of BaltimoFe^ and was not tenantable, and he notified the clerk when he paid the rent that he would no longer be liable under the lease. There was other evidence in the case, but as the material facts are not disputed and have been heretofore stated it will not be necessary to further set them out. At the trial below, the Court granted the two pravers off er- ed on the part of th e, plaintiff, and rejected th o se presented by the de- fendan t, except, tbe-^fi fih. It also granted the plaintift''s special ex- ception to the defendant's first prayer, that there was no legally suffi- cient evidence to show that the terms of the lease were ever modified by any legally binding agreement. The whole case was presented on the prayers and the special exception, and we shall proceed to consider them. The^ pravers on . the part of the plaintiff were demurrers to the ev i- d ence an d w ere to the efiFect that as a matter of law there was no leg g.1- Ch. 1) MODE OF CONVEYANCE 219 1^ suffic ient eviden c e of the acceptance of a su rrender, or of an ouste r by the plaintiff . The generaFrule is well settled that to constitute a valid surrender of rented premises by a tenant during the term there must be the a ssent of both parties to the rescinding of the contract of renting, and such assent may be e xpressed o r implied froip such acts as would rea- sonably indicate that the parties have agreed that the tenant shall abandon the premises, and the lan dlord assume its possessi on. Biggs V. Stueler, 93 Md. 110, 48 Atl. 727. The appellants admit that the defendant returned the key before the expiration of the lease. It was not accepted and therefore up to this time no surrender took place. It is further conceded that the plaintiffs had a right to enter for the purpose of taking care of the property, of repairing the premises and to put a "for rent sign" in the window. But it is earnestly urged that the re-renting of the property fpr the. b gnent of the tenant without h is assent was an acceptance of a su r- tSJid^r, an nn^tfr nf the tpnant^ and rele ased him from liability for re nt u nder the lease^ , There are some authorities to the effect that a re-entry and reletting of abandoned premises by the landlord without the consent of the ten- ant, would create a surrender, by operation of law. Underbill v. Col- lins, 132 N. Y. 271, 30 N. E. 576; Gray v. Kaufman, 162 N. Y. 388, 56 N. E. 903, 49 L. R. A. 580, 76 Am. St. Rep. 327 ; Day v. Watson, 8 Mich. 535 ; Rice v. Dudley, 65 Ala. 68. The best approved cases, however, assert the contrary doctrine, and h old that where a tenant repudiates the lease, and abandons the de- mjsed premises, and the lessor enters and relets the property, that such r e-renting does not relieve the tenant from the payment of the rent u nder the covenants of the lease . Auer v. Penn. 99 Pa. 370, 44 Am. Rep. 114; Meyer v. Smith, ZZ Ark. 627; Bloomer v. Merrill, 1 Daly (N. Y.) 485; Scott v. Beecher, 91 Mich. 590, 52 N. W. 20; Rich v. Doyenn, 85 Hun, 510, ZZ N. Y. Supp. 341 ; Alsup v. Banks, 68 Miss. 664, 9 South. 895, 13 L. R. A. 598, 24 Am. St. Rep. 294. In Biggs V. Stueler, 93 Md. Ill, 48 Atl. 729, this Court said: "The acts upon which the appellee in this case relies to prove a surrender are the acceptance of the keys by the appellee, the repairs to the house and the reletting. But th ose are insufficient of themselves to show acc ept- a nce, unless under all the circumstan rp<; thfV ^''^ " f such a Hi^imrter a^ to show a purpose on the part of the tenant to vacate and on th e p art ot the landlord to resume possession, to the exclusion o f tbp. ten- ant." In the case now under consideration all of the acts of the lessor, including the letters of June 2nd and 3rd cl early show that the appe l- l ees did not intend to ac cept a s urrender of the property and to releas e the tenant from his liability for rent . On the contrary the letters dis- tinctly state the property would be rented subject to the covenants of 220 DERIVATIVE TITLES (Part 2 the lease and if a tenant could be secured, and rent collected, the lessee would be credited therewith, and be liable for the difference. The case of Big-gs v. Stueler, supra, is also relied upon by the appel- lant to sustain the proposition urged by him, t hat the assent of the t enant is absolutelv necessary -hefore the landlord ran r^ l^^t rlpmi'cpri premises. In that case there was a statement that would seem to sus- tain the appellant's contention but an examination of the whole case, will clearly show that the case cannot be given such a construction. It was not necessary for the decision of the case, and would not be in accord with the conclusion reached by the Court, under the facts of the case. As to the rulings of the Court on the first and second exceptions upon the admissibility of evidence but little need be said as the evi- dence was afterwards admitted, and the defendant was not injured thereby. The pl aintiff's special exception to the defendant's first praver w^a s p roperlv sustamed . There was no evidence legally sufficient to show that the terms of the lease had been modified by an oral agreement, and what was said by us on the demurrer to the declaration, disposes of this question. For the reason we have given, the defendant's prayers were prope rly r ejected, and as the correctness of the Cou rt's rulings on the pl amtiff's prayers established the right of the plai ntifls to recover, the judgment will be affirmed. Jud gment affirme d with costs.'* ' ' ■ 31 "Upon the trial in the court below the learned .Indgje Instructed the jury, as set forth in the second assigrnment of error, as follows: ' 1^ a man refu ses t o continue your tenant, g ives up the house into your hand s, why, th en, sou have a right to put a bill ui mhi the hinisp nnil try to rent i t; bec ause, if you rent it, it: is so much saved to Mr. Auer, no much saved to the surety of the tenant, because you have to give an account of every cent you make out of the house; a nd cert ahilv it is much better for the tenant, that t he lan d- I grd should rent the ho use aivl get sonietliinLT fnr TI, tli;in to siuiiily F ockj Uie d oor and lay by an d sue tlie tenant or surety fer the whole ainnn nt of , the r ent tor the who le ter ni for whlcF he lias taken it ; so that, being for the benefit of both parties, it is no presumption that the landlord has accepted a surrender, that he has taken and leased the house.' We see no error in this. It'is good sense as well as good law." Auer v. Pennsylvania, 90 Pa. .370, .'576, 44 Am. Rep. 114 (1882), per Paxson, J. In the case, however, it appeared that the landlord had notified the surety of the tenant who moved out that he would be looked to as continued security for the rent. "May a landlord, after his tenant has vncnterl arwj ^han c\qh(h[ the prem- i ses without cause, resume possession fEere6f, and re-lease the same to an - other, after giving notice to the original tenant of his intention of holding him for the rents reserved , and that he had resumed possession for the pnr- pose of protecting the reversion, and had relet them to reduce the damage s which he might otherwise sustain, without being held to have crpnfptiM surrenaer by operation of law . * * * The a r pnprnl mlp n o doubt Is thnf. i f the tenant abandons the pr em ises and the L4hdlord I'e -f en'ts them ^a~suF render is estabUsliedT^ Stobie v. Dills, (JL! 111. 4oi> (l^TI). — J:5ut nearly every rule nas its excpptlons, and one of the excentioi^s to the rule l.ust quoted is t hat if the landlord re-leases the m fo r and'bri Account of the tenant n sn f- renaer is not to be interred . *—- * — * If tney gave appellees notice that they intended to hold them for the rent, and re-rented simply to reduce the- Ch.l) MODE OF CONVEYANCa 221 LYON V. REED. (Court of Exchequer, 1844. 13 Mees. & W. 285.) Parke, B.^^ This was a special case argued in Easter Term. It was an action of debt by the pla intiff, as assignee of the reversion of certain houses"an3 rope-walks at i5hadwell,"li o_lde rrun(ier a lease trom t he Dean ofS't. Paul's against the defendants, who are executors of Shake speare Reed, Deceas ed, ihe plaintitt claims from the defend- ants nmeteen years' rent, accrued due between Christmas, 1820, and Christmas, 1839, partly in the life time of Shakespeare Reed, who hel d t he premises during his li fe^and partly since his decease , while the premises were in the possession of the defendants, his executors. The material facts are as follows : — The premises in question are parcel of the possession of the Dean of St. Paul's, and it appears that, on tlie 26th of December. 1803, the then dean demised a large estate a t §hadweli^ jjid ^ing the houses and premises in question, to two per - s ons of the names of Ord andPlanta ( who were in fact Jrustees fo r tlieI3^jtY£sJamily) for a te rm of forty years , commencing at Christmas, 1803, and which would, therefore, expire at Christmas, 1843. On the 24 th jjf March, 1808, Ord and Planta made an underlease of the houses and rope-walks in question to~StTakespeare Reed for thirty-four year s, cx) mmencinfT from Christmas, 180/, so that the term created bv th\is underlease wo uld expire at Christmas. 1841. leaving a reversion of two years in Ord and Planta. The rejjl sought to hox^zo^^^^i^dj^J^^ej:^^ du^-^pniheuijjierlea^e;^^ Cl^i§ti^asJJ^39^^ It appears that, previously to the month of October, 1811, Robert Hartshorn Barber a nd Francis Charles Parry were .ap- p ointed by t he Court of Chancery t rustees for t he place ot Urd and Planta ; and by an indenture dated the 3d of October, fell, endorsed- on the lease of 1803, all the property at Shad / ^ A'iA^'-'^ /I the Bowes family, in /-iXit/CCu^ 9r^ well Remised by that lease was assigned by Ord and Planta to Barber and Parry, the new trustees . Soon after this assignment, the Bowes family appears to have negotiated with the dean for a renewal of the ^ < Jix4y>*- ^ lease of 1803, and accordingl y a n ew lease was executed by the dean, ' y^ -j ^ ^ "^^SLO^ ^^f^ damages — and this is made to appear by satisfactory evidence — there is no reason for holding that there was a surrender, and that the original tenants were released from their obligation." Brown v. Cairns, 107 Iowa, 727, 737, 77 N. W. 478, 482 (1S9S), per Deemer, C. J. See Kean v. Rogers, 146 Iowa, 559, 123 N. W. 754 (1909). " What does or does not constitute a surrender of the lease and _ ^^^ Qf»pppt- ance tlTereor must be determined trom all the facts it L-£a.Ch particular cas e. ■vVtrhout" stfitlhg in detail all the testimony on that point m this case, we think it is a fair deduction from the testimony that therp y ^«^- g" pb a sux - render h ere, ana an acceptance of it. especially in view of the fnrt ttiP^ ^" /^ Appellan t nevefjnot iged the lessee at any time, not pvpti pftpr r^rmy^p;? tvia no uncation ilfpgpember. 1905. that they would not renew the lease, that he expected to"h(Ma the lessee tOr tll'5 rent." Stein v. Hyman-Lewis Co., 95 Miss. 293, 299, 48 South. 225, 226 (1909), per Whitlield, C. J. 3 2 The opinion only is printed; the case suthciently appears therefrom ^>^;5*^ 222 DERIVATIVE TITLES (Part 2 \^\ d ated on the 7th of April, 1812, for a term of forty years, frnm r;.|iri<; t- k M mas, 181 1. a n3~which term, would therefore, endure till Chrktma ';^ 1 ~851. "On fortunately this lease, instead of being made to Barber and Parry (the new trustees) in whom the old term (subject to the under- lease to Reed) was vested, was made tq Ord and Planta, the old tru s- tees ; the fact of _the_ch ange of trustees and the assignment of the 3d of October, 1811, having, at the time e scaped observ ation. In this state of things, a private act of Parliarnent was passedTenabling the dean and his successor for the time being t o grant leases of the Shad - well estate to the trustees of th e Bo wes family for successive terms of ninety-nine years, renewable for ever . The act, which is intituled "An Act to enable the dean of St. Paul's, London, to grant a Lease of Messuages, Tenements, Land's, and Here- ditaments in the parish of St. Paul's, Shadwell, in the County of Mid- dlesex, and to enable the Lessees to grant Subleases for building on and repairing, that Estate," received the royal assent on the 22d of July, 1812. It begins by reciting the will of Mary Bowes, whereby she bequeathed her leasehold estate at Shadwell, held under the Dean of St. Paul's, (being the estate afterwards demised by the leases of 26th December, 1803, and the 7th April, 1812,) to Ord and Planta, on cer- tain trusts for the Bowes family. It then recites the lease of the 7th of April, 1812, and after stating that it would for the reasons therein mentioned, be beneficial for all parties that the dean should be empow- e red to grant long leases of the Sha dwell property, perpetually renew- able, and further stating that Ord and Planta were desirous of being discharged from their trust, and that John Osborn and John Burt had agreed to act as trustees in their place ; it enacted, that it should be lawful for the dean and his successors for the time being, and he and they are thereby required, on a surrender of the existing lease, to demise the Shadwell estate to Osborn and Burt, their executors, ad- ministrators, and assigns, for a term of ninety-nine years, and at the e nd of every fi fty years to grant a new lease on payment ot a nomfn al fine^ with varTous provisions (not necessary to be stated) torTecuring to the dean and his successor a proportion of all improved rents to be thereafter obtained. And by the second section of the act it is e n- a cted, that, immediately on the execution by the dean of the first lease for ninety-nine years t o b e granted in pursuance ot the act, the lease o t the / t h ot April, 18iZ, should become void. It is plain, from the provisions contained in this act, that the persons by whom it was ob- tained were not aware, or had forgotten that, in the month of October preceding, Ord and Planta had assigned their interest in the property to Barber and Parry, the new trustees appointed by the Court of Chancery. In pursuance of the act of Parliament by an indenture of t hree parts, dated the 31st day of Au gust, 1812, a nd_ma^gJ.^£lS£au-tFe ^^ ' dean of t he first part, Th omas iJowes"(the party "beneficially interes ted */ forJiis Trf"e)_q f the'seTondl^art^ and Os born and Burt of the third part, ' » the dean demised the Shadwell property to Osborn and Burt for a term Ch. 1) MODE OF CONVEYANCE 223 o f nJnetvTnine years , and the dp t-^i,';^ ig pypressed fahe maHf^ h<^ ;v^]1 in ic onsideration of the surr e nder of the lease of die 7th of April, 181_2 , "being die lease last existing," as also of the rents and covenants, &c. Mr. Bowes, and Osborn and Burt, his trustees, appear to have dis- covered, before the month of January, 1814, the mistake into which they had fallen, and two further deeds were then executed for the purpose of curing the defect. By the former of these deeds, which bears date the 6th Januarv\ 181 4. and is made between Barber and Parry of the one part, and the dean of the other part, reciting that, at the time of the granting of the lease of the 7th of April, 1812, the estate and interest created by the original demise of the 26th of De- cember, 1803, was vested in Barber and Parry, and also reciting that the fact of the assignment to them by the deed of the 3d of October, 1811, was not known to the parties by whom the said act was solic- ited, it is witnessed, that Barber and Parrv did bargain, sell and su r- r ender. tfl _ the dean the whole of the said Shadwell estate, to the inten t t hat the term of forty years, created by the lease of the 26th o i-Xle - cember. 1803 , mi o;^lu.be merged in the freehold, and that the dean might execute a new lease to Osborn and Burt according to the said act. By the other deed, which bears date the 29th of January, 1814, and is made between the dean of the first part, and the said Thomas Bowes of the second part, and the said Osborn and Burt, of the third part; the^ dean. in consideration of the effectual surrender of the two prior^ l eases of the 26t h ot JJ ecember, ISO: for the 61 act of Parliament, to Osborn and Burt . rator s. and assigns^ for a term of nin etvtnine e state, pu rsuant to the sai rs, admim their execu: years. The interest of Osborn and Burt, under these two leases to them, has, by various assignments, be come vested in the plaintiff and tl ^ere is no doubt but tha tj ig i§^ entitled to recover the rent in question ^ pi in this action, if Osborn and Burt would have been so entitled Such being the principal facts, we must consider how they bear on i the several issues raised by the pleadings. The declaration, after stat- C' ing the demise from the dean to Ord and Planta in 1803, and the un- derlease from them to Reed in 1808, goes on to state, that, by the deed of the 3d of October, 1811, Ord and Planta assigned all their in- terest in the premises to Barber and Parry, and th at the dean, bei ng seise d of t he rev ersion expectant on the term of forty vears so assigne d t oBarEer I jTd Farry, by the indenture of the 31st of August. 181 2. d emised tKe'p remise s to Osborn and Burt for a term of ni n ety-nin e yearSj by virtue whereof they became entitled to the reversion for that term. The declaration then goes on to state that, by the indenture of the 6th of January, 1814, Barber and Parry assigned their interest to the dean, to the intent that he might grant a new lease to Osborn and Burt; and that afterwards, on the 29th day of the same month of January, 1814, the dean, by the indenture of that date, made a new demise of the premises to Osborn and Burt for a fresh term of SU i^^ytru-^^^f 224 DERIVATIVE TITLES (Part 2 ninety-nine years, they by the same indenture s urren dering thejoriner t erm crejj;e(i by t he demise of the 31st of Augiist^ _18|Z THedecla ra- tion then traces the title in the present plaintiff by assignment from Osborn and Burt previously to Christmas, 1820, and so claims title to the rent accrued due after that date. To this declaration the defendants pleaded six plea s : Firs t, a plea traversing the averment that, at the time of the demise toTTsborn and Burt of the 31st of August, 1812, the dean was seised in fee of the reversion. S econdly a plea traversing that demise. Thirdl y, a plea traversing the assignment by Barber and Parry to the dean, to the intent that he might grant a new lease to Osborn and Burt. Fourth ly, a plea traversing the surrender by Osborn and Burt of the first term of ninety-nine years, fifthly, a special plea stating the indenture of the 7th of April, 1812, whereby Ord and Planta became entitled to the reversion for forty years from Christmas, 1811, and so continued imtil, up to, and after the execution of the indenture of the 29th of January, 1814. Sixthl y, a plea traversing the demise to Osborn and Burt by the indenture of the 29th of January, 1814. Issue was joined on all the pleas except the fifth, and to that the plaintiff replied, that, after the making of the lease of the 7th of April, 1812, and before the lease of the 31st of August, 1812, the private act of Parliament was passed, authorizing the dean, on the surrender of the existing lease, to grant a lease for ninety-nine years to Osborn and Burt; and the replication then avers that the lea se of the 31st of August, 1 812, w as dulv made in pursuance of the act, and ttiat. at the time when it w as m ade, the lease of the 7th of April. 1812^ was duly surrendere d. To this the defendants rejoin, traversing the surrender of the lease of the 7th of April, 1812, and on this issue was joined. The second, third, and sixth issues, it will be observed, are mere traverses of the exe- cution of deeds which are found by the special case to have been duly executed ; ' and, as the traverse merely puts in issue the fact of the execution, and not the validity of the deeds or the competency of the parties to make them, the verdict on those issues must certainly be entered for the plaintiff ; and so must that on the fourth issue, whereby the defendant traverses the surrender by Osborn and Burt of the first term of ninety-nine years, when the demise of the second term was made to them. It ^ is quite clear t hat the acceptance of the secon d demise w as of itself a surrender m law of the first , even^ if no surr en- d er m tact w a^_i pad e. For whom, then, is the verdict on the remain- ing issues, the first and fifth, to be entered? The issue on the fifth plea is, it will be observed, whether the lease of the 7th of April, 1812, was duly surrendered at the time of the making of the indenture of J, the 31st August, 1812. And the issue on the first plea is substantially ( the same; for if the plaintiff succeeds in showing that the indenture of 1 the 7th April, 1812, was duly surrendered as set forth in his declara- jtion^ then it follows that the dean was at that time seised of the re- Vyersion, and so the plaintiff must succeed on the first issue; if, on Ch. 1) MODE OP CONVEYANCE 225 the 'other hand, he fail on the fifth issue, he must also fail on the jjS^^""^ first. "^^^^-^^"^ The rea l qiiestinn. therefore, for our consideration is, whether th e/ .^ p laintiff has succeeded in showing that the term of the 7th April wa s * s urrendered previously to the execution of the indenture of the 31s t of August, 1812. On this subject it was argued by the counsel for the plaintiff, first, that the circumstances of the case warranted the conclusion that there was an actual surre nder in fac t; and if that be not so, then, secondly, that they prove conclusively a surre nder in po int ofjaw. We will consider each of these propositions separately. And first, as to a surrender in fact. The subject-matter of the lease of the 7th April, 1812, was, it must be observed, a rpyprc;iQn; a matter, there- fore, lyingingrant^ an d not in liver y, afld of which, therefore, there «**«=^ could be no valid surrender in fact ot herwise than bv deed ; an d what i^ •^''^'^'^^^^^^^^ the plaintiff must make out, therefore, on this part of his case is, that, • » ^ ^r^ befo re tTie exec uti on of the first le a se for nmety-nme year s, 'Ord and ^'A-i ^''^^^ ^^^ fanta^y some deed not n ow forthcoming, assigned or Surrendere d AjM>'"*^ yj to the dean the interest which they had acquired under the lease o f the 7th of A pril. But what is there to warrant us in holding that any such deed was ever executed? Prima facie a person setting up a deed in support of his title is bound to produce it. But undoubtedly this general obligation admits of many exceptions. Where there has been l ong enjoyment of any right, which could have had no lawful orig in e xcept bv deed, then , in^favour of such enjoyment, all necessary deeds may be presumed, if there is nothing to negative such presumption . Has there, then, in this case been any such enjoyment as may render it unnecessary to show the deed on which it has been founded? The only fact as to enjoyment stated in this case has precisely an opposite tendency; it is stated, so far as relates to the property, the rent of which forms the subject of this action, namely the houses, &c., under- let to Reed, that no rent has ever been paid ; and t herefore, as to tha t port ion of the property included in the lease of April, 1812, there ha s c ertainly been no enjoyment incon sis tent with the hypothesis that that l ease was not surrendered. The circumstances on which the plaintiff mainly relies as establish- ing the fact of a surrender by deed, are the statements in the two leases to Osborn and Burt, that they were made in consideration, inter alia, of the surrender of the lease of the 7th April, and the fact of that lease being found among, the dean's instruments of title. These cir- cumstances, however, appear to us to be entitled to very little weight. The o rdinary course pursued on the renewal of a lease is for the les- see to deliver up'the old lease on receiving the new one, and the new lease usually states that it is made in consideration of the surrender of the old one. No surrender by deed is necessary, where, as is c om- monly the case, th e former l essee takes the new lease, and aU whi ch Aig.Pbop. — 15 226 DERIVATIVE TITLES (Part 2 A-""^. Oj^ i s ordinarily done to warrant the st atement of the su rrender of _the old lease as a part of the consideration for granting the new one, is, t hat the old lease itself,, t h e parchment on which it is engrossed, is de- l ivered -UP. Such surrender affords strong evidence that the new lease has been accepted by the old tenant, and such acceptance un- doubtedly operates as a s urrender hv operation of law , and so both parties get all which they require. We collect from the documents that this was the course pursued on occasion of making the lease of the 26th December, 1803, and the lease of the 7th of April, 1812; and we see nothing whatever to warrant the conclusion that any thing else was done on occasion of making the lease to Osborn and Burt. Wl iere a surrender by deed was understood by the parties to be n ecessary, as it was with reference to the term assigned to Barber and Parry^ th ere it was regularly made , and the deed of surrender wa s e ndorsed on the lease itself ! There is no reason for supposing that the same course would not have been pursued as to the lease of April, 1812, if the parties had considered it necessary. If any surrender had been made, no doubt the deed would have been found with the other muniments of title. No such deed of surrender is forth-d oming, a nd we see nothing to justify us m presuming that any such dee d ^j -1 eyer_existed. We may add, that the statement in the new lease, that l*^' the old one had been surrendered, cannot certainly of itself afford any evidence against the present defendants, who are altogether strangers to the deed in which those statements occur. It remains to consider whether, although there may have been n o .surren der in fact^ the rirrnrrT^tances of the case will warrant us in hold - i ng^^t there was a surrender by act and operation nf l^w- On the part of the plaintiff it is contenaec^^" Tiiat there is sufificient to justify us in coming to such a conclusion, for it is said, the fact of the lease of the 7th of April, 1812, being found in possession of the dean, even if it does not go the length as establishing a surrender by deed, yet furnishes very strong evidence to show, that the new lease granted to Osborn and Burt was made with the consent of Ord and Planta, the lessees under the deed of the 7th of April, 1812. And this, it is con- tended, on the authority of Thomas v. Cook, 2 B. & Aid. 119. and Walker v. Richardson, 2 AI. & W. 882, is sufficient to cause a surrender by operation of law. In order to ascertain how far those two cases can be relied on as authorities, we must consider what is meant by a surrender by opera- tion of law. This term is a pplied to cases where the owne r of a par- t icular estate has been a party to some act, t he validity of which he i s by law afterwards estopped from disputing, and which woul dno t e valid if his particular estate had continue d to exist. TFere the aw treats the doing of such act as amounting to a surrender. Thus, f lessee for years accept a new lease from his less or., he is.,e stoppe d rom saying that his lessor had not power to make the new leas e ; and, as the lessor could not do this until the prior lease had been surren- Ch. 1) MODE OP CONVEYANCE 227 dered, the law says that the a c ceptance of such new lease is of itself a surrender of the former. So, if there be tenant for life, remainder to another in fee, and the remainderman comes on the land and makes a feoffment to the tenant for life, who accepts livery thereon, the ten- ant for life is thereby estopped from disputing the seisin in fee of the remainderman, and so the law says, that such acceptance of livery amounts to a surrender of his life estate. Again, if tenant for years accepts from his lessor a grant of a rent issuing out of the land and payable during the term, he is thereby estopped from disputing his les- sor's right to grant the rent, and as this could not be done during his term, therefore he is deemed in law to have surrendered his terra to the lessor. It is needless to multiply examples ; all the old cases will be found to depend on the principle to which we have adverted, namely,_an a ct done bv_or to the owner of a particular estate, the validity of which h e^ is estopped from disputing, and which could not have been done i f_the particular estate continued to exis t. ^]he-Ja w lJ Te?:£.^s3 j( s^thgt t lie .ac t itself araQlinta.to _ja ^u jTender. In such case it will be observed n there can be no question of mtention. Th e_ surrender is not the resu lt ^-{>t^;vvfirikf^ '^ o f intention. It takes place independently, and even in spite of inten ->^ / ^.^a^**'^ *^ t ion . Thus, in the cases which we have adverted to of a lessee taking^^^ . ,^ a second lease from the lessor, or a tenant for life accepting a feoff'- 't^^ct^-^^t'*'^''*^ ment from the party in remainder, or a lessee accepting a rent-charge from his lessor, it would not at all alter the case to show that there was no intention to surrender the particular estate, or even that there was ^ 'Ajl^ ^ /^ an express intention to keep it unsurrendered. I n all these rases th e ^ ^''^ / surre nder would be the act of law, and would prevail in spite of th e i ntention of the parties. ~ ^rhese principles are all clearly deducible from the cases and doctrine laid down in Rolle and collected in Viner's Abridgment tit. "Surrender," F and G, and in Comyns' Dig. tit. "Sur- render," T, and I, 2, and the authorities there referred to. But, in all these cases, it is to be observed, the owner of the particular estate, by granting or accepting an estate or interest, is a party to the act which operates as a surrender. That he agrees to an act done by the reversioner is not sufficient. Brooke, in his Abridgment, tit. "Sur- render," pi. 48, questions the doctrine of Frowike, C. J., who says — "If a termor agrees that the reversioner shall make a feoffment to a stranger, this is a surrender," and says he believes it is not law ; and the contrary was expressly decided in the case of Swift v. Heath, Carthew, 110, where it was held, that the consent of the tenant for life to the remainderman making a feoffment to a stranger, did not amount to a surrender of the estate for life, and to the same effect are the authorities in Viner's Abr. "Surrender," F, 3 and 4. If we apply these principles to the case now before us, it will b e seenthat they do not at all warrant the conclusion, that there was a su r- r ender^f the l ease o f the 7th of April, 181 2^ bvact_ and nperatian oit lawl Even adopting, as we do, the argument ot tHe plaintiff, that 228 DERIVATIVE TITLES (Part 2 the deliv ery up_ by Ord and Planta of the lease in qu e stion affor ds cogent evidence__of their having consente d t o the making of the ne w leas_e^stdl there is n^estoppe l in^ such a case^ It is an act which, like any other ordinary act in pais, is cap able of being explain ed, and its effect must therefore depend, not on any legal consequence necessarily attaching on and arising out of the act itself, but on the intention of the parties. Before the Statute of Frauds, the tenant in possession of a corporeal hereditament might surrender his term by parol, and therefore the circumstance of his delivering up his lease to the lessor might afford strong evidence of a surrender in fact; but certainly could not, on the principles to be gathered from the authorities, amount to a surrender by operation of law, which does not depend on inten- tion at all. On _all these g roun ds, we ar^ of opinion that there was in th is case no surrender by operation of l aw , and we should have con - sideredJ Jie case as ji yite clear had it not been for some modern rase s, to whi ch we ;, must n ow advert. TEe first case, we believe, in which any intimation is given that there could be a surrender by act and operation of law by a demise from the reversioner to a stranger with the consent of the lessee, is that of Slone v. Whiting, 2 Stark. 236, in which Holroyd, J., intimates his opinion that there could; but there was no decision, and he re- ^ , served the point. This was followed soon afterwards by Thomas v. ^^ ' /'Cooke, 2 Stark. 408, 2 B. & Aid. 119. That was an,adia D"of debt by^ r'*'/\fl^ j l andlord against his tenant from year to year, under a parol demise . / The defence wal, that the defendant Cooke, the tenant, had put an- ^ other person (Parkes) in possession, and that Thomas, the plaintiff, 1 had, with the assent of Cooke, the defendant, accepted Parkes as / his tenant, and t hat so the tenancy of Cooke had be en dete rmined. V^T hf Q o urt o f King's Bench held, that the tenancv""was deterrn ined. b y act and operation of law. It IS maiier oi great r^ret that a case involving a question of sO' much importance and nicety, should have been decided by refusing a motion for a new trial. Had the case been put into a train for more solemn argument, we cannot but think that many considerations might have been suggested, which would have led the Court to pause before they came to the decision at which they arrived. Mr. Justice Bayley, in his judgment says, the jury were right in finding that the original tenant assented, because, he says, it was clearly for his bene- fit, an observation which forcibly shows the uncertainty which the doctrine is calculated to create. The...actg>ii Lpais which bind parties by way _of estoppel arejajiijew, a nd are pointed out by Lord Cok e. Co. Little. SSTaT'^'Tfiey are all "acts which anciently really were, and in contemplation of law have always continued to be, a cts o fjl£tori.et y. not less formal and sol emn than the execution of a deed, , su c h as livery^ entry, acceptan ce of an estate, and tbe like^ Whether a party had or had not concurred in an act of this sort, was deemed a matter which there could be no difRculty in ascer- *pi^ Ch. 1) MODE OF CONVEYANCE 229 taining, and then the legal consequences followed. But in what uncer- tainty and peril will titles be placed, if they are liable to be affected by such accidents as those alluded to by Mr. Justice Bayley. If th e d octrine of Thomas v. Cooke should be extended, it may very much a ffect titles to long terms of years, mortgage terms, for instance. _i n which it frequently happens that there is a consent, express or implie d, by the legal termor to a demise from the mortgagor to a third person. To hold that such a transaction could, under any circumstances. a mount to a surrender by operation of law, would be attended wit h most serious rnnsegnernpf^s, The case of Thomas v. Cooke has been followed by others, and acted upon to a considerable extent. Whatever doubt, therefore, we might feel as to the propriety of the decision, that in such a case there was a surrender by act and operation of law, we should probably not have felt ourselves justified in overruling it. And, perhaps, the case itself, and others of the same description, might be supported upon the ground of the actual occupation by the landlord's new tenants, which would have the eft'ect of eviction by the landlord himself in supersed- ing the rent or compensation for use and occupation during the con- tinuance of that occupation. But we feel fully warranted in not ex - -yy^^^ t ending the doctrine of that case, which is open to so much doub t, especially as such a course niight b e attended with very mischievou s ^-^VT»-/2L^ c onsequences to the security of titles . If, in compliance with these cases, we hold that there is a surrender by act and operation of law where the estates dealt with are corporeal ..^...^ and in possession, and of which demises may therefore be made by VivC"^^ parol, or writing, a nd where there is an open and notorious shifting o f »- — - t he actual poss ession, it does n ot follow that we should adopt the^same ' d octrine where reversions or mcorporeal hereditaments are disposed o f, w hich pass only by deed . With respect to tnese, we'think we oughtto abide by the ancient rules of the common law, which have not been broken in upon by any modern decision, for that of Walker v. Richard- son, 2 M. & W. 882, which has been much relied on in argument, is not to be considered as any authority in this respect, inasmuch as the distinction that the right to tolls lay in grant was never urged, and probably could not have been with success, as the leases, perhaps, passed the interest in the soil itself. Moreover, according to the re- port of that case, it would seem that the new lessees had, before they accepted their lease, become entitled to the old lease by an actual assign- ment from the old lessee. If this were so, then there could, of course, be no doubt but that the old lease was destroyed by the grant and ac- ceptance of the new one. It is, however, right to say, that we believe this statement to have crept into tlie report inadvertently, and that there was not, in fact, any such assignment. The result of our anxious consideration of this case is, that the verdict on the issues on the first plea and on the rejoinder to the replication to the fifth plea, must be 230 DERIVATIVE TITLES (Part 2 entered for the defendants, and as those pleas go to the whole cause of action the ju dgment must be for them. ^t-cd^Cj • In the case, as it was originally stated, it dia not appear that there had been any change of dean since the original demise in 1803. We desired to have the case amended on this point, in order that the fact might appear, if the case should be turned into a special verdict. Eor durin g the incumbency of the dean, who made the lease for ninetv-nin e y ears, that lease would be good independently of the private _act, and as t he immediate reversio n ^ o n which the defendant's lease, depended^ was ass igneB to the dean by Barber and Parry previously to the demise o f t he 29th of January. 1814. th at reversion un doubtedly passed to O s- hnni^gnd j^irj^ fii-irl would enablethemTortKeplaintiff claiming under them, to sue for the rent so long as tlie estate of the same dean con- tinued, whether the lease for ninety-nine years was or was not war- ranted by the act ; and '^n _Hip pbintifF might possibly have been entitl ed t o judgment non obstante veredicto. It appears by the case as now amended, that the Bishop of Lincoln who was the dean granting the leases of ninety-nine years, ce ased to be dean , and was succ ££ded by Dr. Van Mildert in October, 1820, before any part of the rent sought to be recovered in this action had accrued due, and therefore no ques- tion on this head arises. N either will the second private act stated in the case a M_tl2e _plain.- tiff. It appears that, in 1820, the difficulties in which the parties had involved themselves by neglecting to get a proper surrender of the lease of the 7th of April, 1812, was brought under the consideration of the Court of Chancery, in a suit there pending relative to the af- fairs of the Bowes family. Master Cox, by his report of the 15th of February, 1 1820, st ated, that he was ofo £inion that both t he leases of ni nety-nine years were voTcI, the hrst because it was m a de when t he o riginal term of forty years wardutstanding in Barber and Parry , and the latter b ecause at the time of its creation the lease of the 7th of April, 1^12, was still outstanding, t hus showing clearly his opinion that nothing had happened to cause a surrender of that lease by operation of law ; and he re commended that an act of Parliament shou ld be ob- t ained to remedy the defect . His report was afterwards confirmed, and the second act stated in the case was accordingly obtained. The act received the Royal assent on the 15th of July, 1820, and i^ wa_s..the'reb v e nacted, that the lease of the 29th of January, 1814, should be vali d to all intents and purposes ; and further, that immediately after the passmg of the act, the leases of the 26 th of December, 180 3, the 7th of A pril. 1812. a nd the 31st of August, 1812 , s hould be void to all intents and purposes. Th e' effect of this was to degtfoy altoget her t he reve r- si on in respect of which the rent now sought to be recovered was pay- able,^ and it may therefore well be doubted whether, even if all the is- sues had been found for the plaintiff, he could have had judgment. It is, however, sufficient for us to say that the act certainly does not enti- tle the plaintiff, to any thing which he would not have been entitled to Ch. 1) MODE OF CONVEYANCE 231 if no such act had passed. More especially when it is considered, that, by the saving clause, the defendants are excepted out of the operation of the act. The re sult_ tl"'^'"pf'^TC ^'^i ^J2^ the verdict on the 1st and 5 th is sues must be entered for the defendan t._a n_d on the other issues for t he plaintiff , and the judgment will be for the defendant. Judgm ent for the de fendant.^ ^ XII. Assignment BLACKSTONE'S COMMENTARIES. An assignment is p roperly a transfer, or making over to another, of t he right one has in any estate ; but it is usually applied to an estate for life or years. Book 2, star p. 326. 9r^ XIII. Defeasance BLACKSTONE'S COMMENTARIES. A defeasance is a collater aLjkcd. made at the same time with a feo ff- ment or other conveyance, contammg certa i n conditions, upon the pe r- fo rrnance of which the estate then created may be defeated or totally u ndone . -^ Book 2, star p. 327. 33 See 5 Irish Jurist, 117. "In tliis case, the d efeiidnnt hciTip thp lessee in possession of the premises , t he pliiiutiff. his huidlord . wUh hi.^; consent, let them to a new tenant., and piit him in nos.session . and Tliscliarged the defendant from his liability as tenant. The judire who tried the case held that these facts constituted a s urrender by oijeration of law , and therefore a defence against the plaintiff's clafmfor rent. The correctness of that holding has been brought into ques- tion before us in consequence of tlie opinion expressed by the Court of Ex- chequer in Lyon v. Reed, 13 M. & W. 2.S5. .305-.310 (1844); but we are of opin- ion that it is correct. * * * Where there is an agreement to surrender a particular estate, and the possession is changed accordingly, it is more prob- able that the legislature intended to give effect to an agreement so proved as a surrender by operation of law than to allow eitlier party to defeat the agreement by alleging the absence of written evidence. Although we do not n gspnt to flif^ observations upon the line of ca^-es. from Thomas v. iCn dk. d ^wnward^ i i. in the" learned and able iudLrment given in Lyon y. Keed. IJL -M. & \V. 283 (lM^'4>,"w e' wish to express our entire concuri'enil'e m the decision la t l^at ca.st^r " Lord "Denman, C. J., in Mckells v. Atherstoue, 10 Q. B. !J44 (1847). See. also, Wallis v. Hands, [1893] 2 Ch, 75; Feun^r v. Blake, [1900] L. R. 1 Q. B. 42G. As to surrenders by operation of law against the intent of the parties, see, further, Van Reussalaer's Heirs v. Tenniman. 6 Wend. 569 (1831); Smith v. Kerr. lOS N. Y. 31, 15 X. E. 70 (1887); Flagg v. Uow, 99 Mass. 18 (186S); Thomas v. Zumbalen, 43 Mo. 471 (1869) ; Johnson v. Northern Trust Co., 265 111. 263, 106 N. E. 814 (1914); U'N'eil v. Pearse, 87 N. J. Law, 382, 94 Atl. 312 (1915). //-^- 232 DERIVATIVE TITLES (Part 2 XIV. DEVIS15 LITTLETON'S TENURES. Also, in some boroughs, by the custom, a man may devise by h is t estament his lands and Jenements^ which he hath in fee simple withj ji t he same bo roug h at the time of his death ; and by force of such devise, he to whom such devise is made, after the death of the devisor, may e nter into the tenements so to him devised, to^ have arid to hold t o him, after the form and effect of the devise^, without any livery Q f seisin thereof to be made to him. &c. Section 167.^* « SECTION 2.— UNDER STATUTE OF USES L UsiiS BEFORE THE Statute of Uses Shortly after the Norman conquest a practice began to grow up of ma king feoffments of lands to trusted friends to be held on behalf o f th ef c offer or a third person or to be disposed of as directed at the tini e of the conveyance or thereafter .^ ^ Under such conveyances t he leg al o wnership was of course in the feoffee , and in his hands was subject to all the burdens and iiiciden^of the feudal land law, to avoid many of which it bec ame common to make the conveyances to two or mox £-as j oint tenant s. '^^ This method of disposition in its early use was re- sorted to i n order that corporations, societies and individuals that we re i ncapable under the law of owning land might have the benefit there - qV^'' Later it was availed of to secure the land to certain persons after the death of the f coffer or to such persons as he should nominate by his last will, and also as a means of avoiding forfeiture by reason of t rea- son, etc.^^ 84 By the Statute of Wills (32 Hen. VIII, c. 1), power NYfls given to every t enant in fee simple to dispose o f all liis lands hold by sooai^o temuv, aii(i_aL twb-thiras or b£s lanas neld D y~l^n^ht-sei:xi£a> The Statute of 12 Car. II, c. '2i, wnicn converted tlie tenure by kuiglit-service into socage tenure, had the effect of making all lands of fre ehold tenure disp osable by will. FurtlTer, on the history of the law 'or wnis, seelJostigan's "Cases" on Wills, pp. 3-9. There were other modes of conveyance by special custom, as in the case of copy hold lands. On this the student may well consult 2 Blackstone's Commen- taries, c. 22. , 35 2 P. & M. Hist. Eng. Law (2d Ed.) 231. See the same, pp. 228-232, for an historical account of the origin and growth of "uses." See, also. Holmes in 1 L. Q. R. 1G2 et seq. so Williams, R. P. (22d Ed.) 170, 171; Leake, Prop, in Land, 80. 37 2 P. & M. Hist. Eng. Law (2d Ed.) 231. 38 Sanders, Uses and Trusts, 10, 17. Ch. 1) 1^1^^^ MODE OP CONVEYANCE 233 The p^s on to whom the land_was conveye d came to be ca lled the "feoffee^/ tp uses ." the person on whose behalf the land was held the "cestui ^iueuse ," and the beneficial interest which the "cestui" had was known as the "use." T his ''use" was not in any sense ownership . On t he contrary it dist in ctlv was not ownershi p.^° The feoffee to uses was supposed to deal with the property as directed under the confidence in which the conveyance to him had been made and to allow the cestu i que use to have the ben efi cial occupation of the land and to take t he p rofits thereof . The cestui que use in possession with the consent of the holder of the legal estate, however, was in the position, so far as the common law courts were concerned, of a tenant at will .^" and a cestui que use out of possession in entering upon the land without consent could be proceeded against in those courts as a trespasser. For many years after the practice of conveying land to uses had be- come common there was no really effective way of compelling the fe- offee to uses to observe the terms of the confidence, nor remedy against one who had proved unfaithful,*^ Some time during the reign of Ed- ward III, however, it seems that the Chancellor, the head of the rapidly broadening Court of Chancery, began to entertain proceedings agains. t s uch feoft'ees to compel their observance of the trust and the directions \y q f^tlie person on whose behalf they held. *'^ During the time of Henry VI it was held that the h eir of the feoffee to uses was subject in the chancery to the same duties as the feoffee himself,*^ and only a little later the remedy was extended as against the t ransferee of the feoft'e e to uses who took as a volunteer or with notice.** Now that a really eft'ective means of enforcing the terms of the trust was at hand, the c u stom of conveying lands to uses became even more popular, s o pop- ular in fact that Blackstone says that during the civil commotions be - tween the, houses of Lancaster and York "uses grew almost unive r- After the jurisdiction of the Chancellor to enforce uses became well established and settled, g radually the use came to be considered th e s ubject of ownership apart from the ownership of the land . Gour_t_s oi law recognized still only the legal estates; to the law courts there f A_.use_ is a trust or confidence reposed in some other, which is not issuing t of the hind, but as a thuig coUater al. annexed in privit y to the estate ot the laud, and to the person touching the land, scilicet, t hat cestui que use shal l t ake the profit, and that the terre-tenant shall make an estate according to his direction. So as cestui que use has neither jus in re nor jus ad rem, %^ O Qly a confidence and trust, for which he had no remedy b.y the common law , but for hreach of trust his remedy was only by suDpoena in chancery." Co. Litt. 272b. 4 Leake, Prop, in Land, 79. - -Ai Jenks, A Short History of English Law, p. 97. In Williams, R. P. (22a Ed.) 171, it is said that there was a remedy for breach of faith in the ecclesias- tical courts. See Holmes in 1 L. Q. R. 162 et seq. 42 Keilw. 42, pi. 7, per Vavasour, J. *3 Id. 4* r>urgess V. Wheate, 1 Eden, 177, 218 (1759), per Mansfield, C. J. 45 2 Bl. Comm. *329. 234 DERIVATIVE TITLES (Part 2 ■r: could be no such interest as a "use." T lie "use" in equity tlius bec ame a n equ ita ble estate and equitable ownership therein was established . * ® The "use" could be transferred, inherited, and devised, and the equitable ownership could be divided up into equitable estates. It w as p ossible to have in the "use" estates in fee simple , fee taiL etc., in pos- session, or by way of remainder or reversion .^ ^ The legal estates were restricted in their creation and conveyance by the demands of the law regarding the seisin,*'* but th ese equitable estates were not subi£ £L.to s uch restrictions, there being no seisin^m the case of a "use ." Accor d- i ngly an equitable estate of freehold could be provided for to arise in futuro.. S uch uses were known as. springing uses . And it was possible to hmit a use to a man and his heirs that should upon the happening of an event specified shift over to another person and his heirs. Such uses were known as s hifting uses,. Also uses co uld be devised by wi ll, for no livery of seisin was required in the transfer of a use. J n case of the death of the cestui que use intestate, the use was held to descend to his heirs according to the course of the common law . The equity courts allowed great latitude in the creation of equitable estates by purchase, but they djd not allow the common law of descent to i >e vari ed_even in the case of a use. *^ ^he use ccnie to be consirlered as a sort of metaphysical entity in whic h _ re miaht he estates very similnr to those which cnnhl ht^ creati-il in liind . e states in possession , reiiiaitide r. reversion, e states di^sceiidiljle in this way or that." Maitland, EquTty, 33. 47 Id. 48 "A feoffment might be made with an express appropriation of the seisin to a series of estates in the form of particnlar estiite and remainders, and the livery to the inunediate tenant was then effectual to transfer tlie seisin to or on behalf of all the tenants in remainder, according to the estates limited. Hu t f uture estates could only be limited in the form of remainders, and any U mi- t allons operating to shift the seisin otherwise than as remainders expecta nt v ipon the determination of the preceding estate weie void at common law . Thus, upon a feoffment, with livery of seisin, to \. for life or in tail, and npou the determination of his estate to B., the future limitation takes effect as a i-emainder immediately expectant upon A.'s estate. But upon a feoff'ment to A. in fee or for life, and after one year to B. in fee ; or to A. in fee, and upon his marriage to B. in fee; or to A. in fee or for life, and upon B. paying A. a sum of money to \^. in fee. — tl jie limitations shifting the seisin from A. to B. T he exigencies. of tenure required that the seisin or immediate freehold should n£.ver be in abeyance, but that there should at all times be a tenant investejj L ^ ^th the seisin ready, on the one hand, to meet the claims of the lord for the duties and services Of the tenure, and, on the other hand, to meet adverse claims to the seisin, and to preserve it for the successors in the title. This rule had important effects upon the creation of freeliold estates; for it follow- ed as an immediate consequence of the rule, as also from the nature of the es- sential act of conveyance by livery of seisin, t hat a grant of the freehold cou ld n ot be made to comm ence at a future time, leaving the"l(Jl!»IU'y \ acant duri_i ig tjLte interval. As 11 I'Ulisd'LiuehOtJ bt the same rule if a feoffment were made to A. for life and after his death and one day after to B. for life or in fee. the limitation to B. was void, bec-ause it would leave the freehold without a tenant or in abe\Lance for a day after the death of A." Leake, Prop, in Laud, 33. 4 8 Sugden's Gilbert on Uses, 26 et seq. Ch. 1) MODE OF CONVEYANCE 235 I n jL use there \^as no such thing as dower or curtesy.^ " and it could not be reached by creditors. ^^ Nor cottlj a use be tort'elted for felony or treason.^'' The co mmon law incidents of tenure were not applicab le to the use. It is not to be wondered that Bacon wrote : "A man, that had cause to sue for land, knew not against whom to bring his action or who was the owner -oi it. Th e wife was defra uded of her thirds ; th e husband of his curtesy : the lord of his wardship, relief, hcriot. an d ej^cheat ; the creditor of his extent for debt: and the poor tenant of hi s l ease." ^^ "To remedy these inconveniences abundance of statutes were provided, which made the lands liable to be extended by the creditors of the cestui que use (Stat. 50 Edw. Ill, c. 6; 2 Ric. II, sess. 2, c. 3 ; 19 Hen. Vli, c. 15); made him liable to actions for waste (Stat. 11 Hen. VI, c. 5) ; established his conveyances and leases made without the con- currence of his feoffees (Stat. 1 Ric. Ill, c. 1) ; and gave the wardship of his heir, with certain other feudal perquisites (Stat. 4 Hen. VII, c. 17; 19 Hen. VII, c. 15)."^* Th ese uses were created upon a cpmmon law conveyance, e. g.. a feoffrcenj^nrl nkn jnflpppnrlpnfly nf such a conveyance. A feoffment tFA. and his heirs to the use of B. and his heirs of course created a use_ i n fee simple in B . So commonly were conveyances made to hold to the use of the feoffer that it was presumed that the use was to remain in him."''^ I n such cases the use was said to result, and was known as a '"' r esulting use . This presumption co uld be rebutted bv an express lim i- ta tion otTTTe use to designated parties ; ^" also by showing that consider- ation was given for the conveyance or that a consideration was ex- pressed.^^ Relationship between feoft'er and feoffee was also sufficient to rebut the presumption of a resulting use. And the use could result A^^c-k in part, as in a feoffment to A. and his heirs to the use of A. for life. There the use is in A. for life, and the balance of the use in fee has resuhed to feoff'er.^* Co nsideration and recitals of consideration ac- ^ c ordingly became very important in conveyancing. 5 Id. pp. 48, 49. 62 Id. pp. 77, 79. 51 Id. pp. 75, 7G. 53 L'se of the Law, 153. 54 2 l?!. Coiiim. *332. 55 Beckwith's Case, 2 Co. 5Sa (15F9) ; Armstrong v. Wolsey, 2 Wils. 19 (1755). See Shoitiidiie v. Lauiplusli, 2 Salk. 67S, 2 Ld, Rayui. 70S, 7 Mod. 71 (1702). 5 Stephen's Case, 1 Leon. 138 (15SS) ; Same's Case, 2 Roll. Abr. 791. 6 7 Porter's Case, 1 Co. 24a (1592). See, generally, Sanders, Uses and Trusts, 60, til. "If the feoffment or conveyance of t*he legal possession be made for a / ^ particular estate only as a gift in tail, or a lease for life or for years, th e ry\^i/i4/9^ ^^ t enure alone thereby created^ with its attendant services and obligations. sur >- ^-' p lied a consideration sutficient to prevent tne use from resu lting, a nd to carr y i t to the donee or lessee : and this doctrine applies at the present cTay . But au express use declared in favor of another would rebut the use implied from the tenure in such cases." Leake, Prop, in Land, 84. 58 Co. Litt. 271b; Sanders, Uses and Trusts, 101. And a consideration gi v- e n or recite d will be deemed to be on account of the use expressly provided fo r. Sanders, CSSs and Ti-ustsri02! A te6Ttment in fee to the use of the feoffo r f or life or years w ill leave the iise in fee in tht^ f^of[ee. for to allow the un - disposed of use to result would accomplish by merger a destruction of the use dAK^''^ (^ 236 DERIVATIVE TITLES (Part 2 ' Uses arose independently of a common-law conveyance by an agr ee- ment of sale of the land supported by a valuable consideratio n.^^ Also by a declaration o r agreement in a writing under seal by the owner who was seised that he would thereafter "stand seised" for the benefit of some near relative.®" The former came to be known as a "b argain an d sale," the latter as a "covenant to stand seisgd." II. The Statute: of Ushs Where by the common laws of this realm, l ands, tenements an d hereditaments be not devisable by testament, nor ought to be transfer - red frorn one to another, but by solem n livery and seisin, matter of rec- ord, writing sufficient made bona fide, without covin or fraud ; yet nevertheless divers and sundry imaginations, subtle inventions and practices have been used, w hereby the hereditaments of this realm have b een conveyed from n np t(7 ^^nntlipr by fra ,udu1ept fe offments, fines, re - covenes, anH ntlipr a'^qnr^nrp g craftilv made to secret uses, intents and ■ ■ ' — ~" 7 ■ — -^. -■■■ _ ' t rusts ; and al so by wills and testame nts, sometime made by nude parolx and words, sometime b y signs and tokens , and som etime by w riting, and for the most part made by such persons as be visited with sickness, in their extreme agonies and pains, or at such time as they have scantly had any good memory or remembrance ; at which times they being pro- voked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and in- heritances ; by reason whereof, and by occasion of which fraudulent feoffments, fines, recoveries, and other like assurances to uses, confi- dences and trusts, divers and many heirs have been unjustly at sundry times disinherited, the lords have lost their wards, marriages, reliefs, harriots, escheats, aids pur fair fils chivalier & pur file marier, jan d s cantly anv person can be certainly assured of any lands by th,e rn pur- c hased, nor know surely against whom they shall use their action s^r e xecutions for t lidjij ights. titles and duties ; also men married have lost their tenancies by the curtesy, women their dowers, manifest per- juries by trial of such secret wills and uses have been committed; the for life or years in the larger use in fee, which would manifestly be contrary to the intention. But it would be* otherwise in case the feoffor should provide for the use to himself and the heirs of his body, for there a merger woxild be impossible. Dyer, 111b, in margin. 59 1 Co. Rep. 176a (1582-1584); Barker v. Keete, 1 Freem. 249, 2 Vent. 35, 1 Mod. 262, 2 Mod. 249 (1677), where a rent of a peppercorn was deemed suffl- ■cient to raise a use upon a bargain and sale. 60 Sharington v. Strotton, Plowd. 298 (1565). See Ricker v. Brown, 183 Mass. 424, 67 N. E. 353 (1903). "But a covenant was not necessary; a declaration of intention made by deed poll would serve equally well (Sljep. I, 508) ; a mere parol promise was not sufficient (Collard v. Collard, Popl. 47, Serj. Moore's Rep. 687, 2 Anders. 64 [1593] ; Page v. Moulton, Dyer, 296a, pi. 22 [1570])." Challis U. P. (3d Ed.) 419, 420. Ch. 1) MODE OF CONVEYANCE 237 King's Highness hath lost tlie profits and advantages of the lands of persons attainted, and of the lands craftily put in feoffments to the uses of aliens born, and also the profits of waste for a year and a day of lands of felons attainted, and the lords their escheats thereof ; a nd many ot her inconveniences have happened and daily do in cre ase among the K ing s subj ects , to their great trouble and inquietness , and to the utter subversion of the ancient common laws of this realm ; for the extirping and extinguishment of all such subtle practiced feoffments, fines, re- coveries, abuses and errors heretofore used and accustomed in this realm, to the subversion of the good and ancient laws of the same, and to the intent that the King's Highness, or any other his subjects of this realm, shall not in any wise hereafter by any means or inventions be deceived, damaged or hurt, by reason of such trusts, uses or confi- dences: it may please the King's most royal majesty, That it may be enacted by his Highness, by the assent of the lords spiritual and tem- poral, and the commons, in this present parliament assembled, and by the authority of the same, in manner and form following; that is to say. T hat where any person or persons stand or be seised, or at any ti me hereafter shall happen to be seised, of and in any honours, castle s, r nanors. lands, tenements, rents, services, reversions, remainders .o r <■ other hereditame nts^o t he use, confidence or trust of any other per - /T" s on or persons. oF ot any body politick, b}^ reason of any bargain, sale , fe offment, fine, recovery, covenant, contract, agreement, will or othe r- wise^ J) V any manner means whatsoever it be; that in every such. case, all and every such person and persons, and bodies politick, t hat have o r h ereafter shall have any such use, confidence or trust, in fee simple , f e_e tajl, for term of life or for years, or otherwise, or any use. confi <- dence-or trust, in remainder or reverter, shall from henceforth staad and be seised, deemed and adjudged in lawful seisin. esta ^T ^^^^ P""- s ession of and in the same honours, castles, manors, lands, tenement s- rents, services, reversions, remainders, and hereditaments, with their appurtenances, to all i ntents, constructions and purposes in the law, o f a nd jn .such like estates a s^ tliey had or shall have in use, trust or con fi- d ence of or in the same; "and tnat the estate, title, right and possession that was m such person or persons that were, or hereafter shall be seised of any lands, tenements or hereditaments, to the use, confidence or trust of any such person or persons, or of any body politick, be from henceforth clearly deemed and adju dged to be in him or them tha t have, or hereafter shall have^ such use^ confidence or trust, after suc h q uality, manner, fo rm and rondilinn .qg tlipy HaH hpfnrp in or tn the use, confidence or trust that was in them. n. And be it further enacted by the authority aforesaid, Tliat where divers and many persons, be or hereafter shall happen to be, jointly seised of and in any lands, tenements, rents, reversions, remainders or other hereditaments, to the use, confidence or trust of any of them that be so jointly seised, that in every such case that those person or persons which have or hereafter shall have any such use, confidence S^e^ttte of Us<:s.-. — 238 DERIVATIVE TITLES (Part 2 or trjst in any such lands, tenements, rents, reversions, remainders or hereditaments, shall from henceforth have, and be deemed and ad- judged to have only to him or them that have, or hereafter sliall have any such use, confidence or trust, such estate, possession and seisin, of and in the same lands, tenements, rents, reversions, remainders and other hereditaments, in like nature, manner, form, condition and course as he or they had before in the use, confidence or trust of the same lands, tenements or hereditaments ; saving- and reserving- to all and s mgular persons and bodies politick, the ir heirs and successors, other than those person or persons which be seised, or hereafter shall be seised, of any lands, tenements or hereditaments, to any use, confi- dence or trust, all such right, title, entry, interest, possession, rents a nd action, as thev or any of them had, or mi.ght have had before the ma k- ing_£tiJllis_acjt. III. And also saving to all and singular those persons, and to their heirs, which be, or hereafter shall be s eised to any use , al j^such for mer r ij^ht, title, entry, interest^_ possession. rents, customs, services an d ac- ti on. as thev or anv nf t]'\p\]^ miV1-||- \^ ^ye. had tn his or their own proper u se, in or to any manors, lands, tenements, rents or hereditamgn js. whereof thev be . .or hereafter shall be seised to any other us e, as if this present act had never been had nor made ; any thing contained in this act to the contrary notwithstanding. IV. And where also divers persons-stand and be seised of and in any lands, tenements or hereditaments, in fee-simple or otherwise, to the use and intent that some other person or persons shall have and per- ceive yearly to them, and to his or their heirs, one annual rent of x. li. or more or less, out of the same lands and tenements, and some other person one other annual rent, to him and his assigns for term of life or years, or for some other special time, according to such intent and use as hath been heretofore declared, limited and made thereof : V. Be it therefore enacted by the authority aforesaid. That in ever y su ch case t h£,aaJIL £. persons, t heirhe irs and assigns, that have such us e a nd interest, to have an J perceive any such annual rents out of an y l ands, tenements or hereditaments, that they and every of them, the ir h girs and assigns, be adjudged and deemed to be in possession a nd s eisin of t he samp rpnt. nf anH I'n qhpIi HV^ PQfaf^ oc th^y In^^ j^^ the title, interest or use of the said rent or profit, and as if a sufficient grant, or other lawful conveyance had been made and executed to them, by such as were or shall be seised to the use or intent of any such rent to be had, made or paid, according to the very trust and intent thereof, and that all and every such person and persons as have, or hereafter shall have, any title, use and interest in or to any such rent or profit, shall lawfully distrain for non-payment of the said rent, and in their own names make avowries, or by their bailiffs or servants make conis-. ances and justifications, and have all other suits, entries and remedies for such rents, as if the same rents had been actually and really granted CO them, with sufficient clauses of distress, re-entry, or otherwise, ac- Ch. 1) ' MODE OF CONVEYANCE 239 cording to such conditions, pains, or other things hmited and appointed, upon the trust and intent for payment or surety of such rent. St. 27 Hen. VIII, c. 10.«^ III. Uses After Statute of Uses {A) Uses Raised i n Connection with a Common-Law Conveya nce GREEN V. WISEMAN. (Court of Common Pleas, 1600. Owen 8G.) In an ejectment . The defe ndant pleaded that a feoffment was ma de to the useof T. S. the lessor of the defendant , who by force thereof, and of tETstatute. was seised, and m ade a lease to the defendan t ; and that one Green entered and made a lease to the [>laintiff, and did not say that he entered upon J. S. And all the question was, whethe r when a feoffment is made to the use of another, if he have such a seisi b efore his entrv. whereof he may be disseised . Glanvile. He hath no freehold, neither in deed nor in law before entry. WalmselEy. This is contrary to all the books: for a possession in law is so translated from the feoffee to cestui que use, that the wife of the feoffee shall not be endowed. Owen. He ought to have alleged a disseisin. Anderson. As he might have possession by force of a devise at common law, so he shall have possession of the land here by force of the statute, and it is in cestui que use, before agreement or entry, but if he disagree, then it shall be out of him presently but not before ^ ^ fZ he disagree. And after viz. Hillar. 42 Eliz. ^ . .^ Williams moved the case again, and W almselEy said then, that h e ^T*^'^* -^ m ight be disseised before his entry or agreement, and the pleadi ng ^ i^, s hall be that he did enter, and did disseise him, but he shall not hav e a trespass without actual entrv,_ for^jhatisgroun ded o n a pos session : Glanvill agreed to this, and advisedWTiliams to adventure the case thereupon. *^^ ci As^ to how far the Statute of TTses is a part of the law of the America n ^l^ft^^fy states.'-s ee 1 Perry oh Trusts (titb Ed.) § 2'J!)n. " ' ' ^ 62 See Heelis v. Blain, IS C. B. (N. S.) 90 (1864) ; Hadfield's Case, L. R. 8 C. P. 306 (1872) : Witham v. Brooner, 63 111. 344 (lS72j ; Hutchius v. Heywood, 50 N. H. 491 (1871). In Egerton's Case, Cro. Jac. 525 (1619), it was held that a fine levied "to the use of the wife of J. S." save to the wife an estate for life only. Lucas V. Brandreth, 28 Beav. 274 (ISCO) ; McElroy v. Same, 113 Mass. 509 (1S73) ; Nelson v. Davis, 35 Ind. 474 (1871), ace 24:0 DERIVATIVE TITLES (Part 2 SHORTRIDGE v. LAMPLUGH. (Court of King's Bench, 1702, 2 Salk. 678.) «' H. b rought covenant as assignee of a reversj gn, and shewed, that tlie lessor, in consideration of 5/. b argained and sold to him for a year, and a fterwards released to him and his heirs, y irtute quarundam indentur, bargainse venditionis & relaxationis necnon vigore statuti de usibus, &c. he was seised in fe e- And it was objected, that the use must be intended to be to the releasor and his heirs, because no con- sideration of the release nor express use appeared by the pleading; so that without considering the operation of tlie conveyance, tlie ques- tion was upon the pleading. Whether the use shall be intended to th e releasor, unless it be averred to be to the releasee ? Et per Holt, C. J., to which the rest agreed. This way of pleading was certainly good before the statute 27 H, 8, so is Plowd. 478; and many precedents in Co. Ent. of feoffments averred in the same manner ; for the use was a matter that was ex- trinsical to the deed, and depended upon collateral agreements at common law, and then the use might, as since the statute of frauds by writing, be averred by parol, and therefore in pleading the conv ey- a nce was taken to the use of him to whom the convevance was made , till the contrary appeared : if it were otlierwise. it ought to come on the other side; and 27 H. 8 has not altered tlie course of pleading, which is rather confirmed by the statute; b ecause, if now the use be c onstrued to be to Jhe releasor or fe o ffor, the conveyance will be to.n o r nanner of purpose , it being still the old estate to which the old war- ranty and other qualities remain annexed ; whereas before the statute there might be some end in making the feoffment, viz. to put the free- hold out of him and prevent wardship ; and Co. Lit. goes no farther, than where there is a feoffment to particular uses and estates, the r esidue of the use shall be to the feoffor, which is reasonab lej._for the raising those particular estates appears a sufficient reasonfor tlie c^nvpyanrp And PowEL, J. doubted, whether there could be a re- sulting use on a lease and release, unless, where particular uses are limited ; for this way of conveyance is grounded on the ancient way of releasing at common law, wherein there was a merger of estate, which is a good consideration, as where the lessor confirms to the lessee and his heirs. In error of a judgment of C. B. which was affirmed. 63 The case is also reported in 2 Ld. Raym. 79S, and in 7 Mod. 71. -^ft^At Ch. 1) MODE OF CONVEYANCE 241 "^ ^ARMSTRONG v. WOLSEY. (Court of Common Bench, 1756. 2 Wils. 19.) E jectment, tried at Norwich before Parker, Ch. Baron, who re- served this short case for the opinion of the Court. A. B. beingL in possession of the lands in question, le vied a fine sur co^usans de droit corne_ceo, &c., with pro damations to the conusee and his he irs, in tlie 6th year of the present King, with out any consideration expr essed, and widiou t declaring any u se thereof : nor was it proved that the conusee was ever in possession. ^ — So that the single question is, whether the fine shall enure to the m ^ ^ ~^ o f the conusor or the conusee,? And after two arguments, the Court 1— ^ was unanimous, and gave judgment for the plaintiff, who claimed as heir of the conusor. Curia — I n the case of a fine come ceo. &c.. where n o uses are de- c lared, whether the conusor he in possession^ or the fine be of a x %- version . it shall enure to the old uses, a nd the conusor shall be in of the ol3 use ; and although it passes nothing, yet a fter five years a nd n on-claim it will operate as a ba r. And in the case of a recovery suffered, the same shall enure to the use of him who suffers it, (who is commonly the vouchee,) if no uses be declared ; but he gains a new estate to him and his heirs gen- eral; and although before the recovery he was seised ex parte ma- terna, yet afterwards the estate will descend to his heirs ex parte paterna, as was determined in Martin v. Strachan, ante. (1 Wils. 2, 66.) Sed vide tliat case, 2 Stra. 1179. I n the case at Bar, the ancient use was in the conusor at the tim e of levying the fin e; and it seems to have been long settled before this case, t hat a fine without any consideration, or uses thereof declare^ , s hall enure to the ancient use in whomsoever it was at the time of le vy- J T^ ^ y the fine ; ^r\(\ ^'^ it vv;;^^ here in t he COnusor at that t^I TlP, *^^^ 'y^\- ment must be for tlie plaintiff."* VAN DER VOLGEN v. YATES. (Court of Appeals of New York, 1853. 9 N. Y. 219.) On the 27th of April, 1790, Nicholas Van der Volgen owned a lot in Schenectady, the land out of which this controversy arose. On t hat d ay, by indenture of release reciting that the releasees were in posse s- sio n of the premises " by virtue of a bargain and sale to them thereof made for one whole year, by indenture bearing date the day next be- 64 See Grev v. Grev, 2 Swans. 594, 598 (1677) ; Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 266 (1866) ; Blodgett v. Hildreth, 103 IMass. 484 (1870). Aig.Pkop.— 16 242 DERIVATIVE TITLES (Part 2 fore the day of the date of these presents, and by fo rce of the st atute ^for transferring uses into possession," and i n consideration of £10 0. ^Omju^^^^ji^ 1 paid by the releasees, he released the premises to Robert Alexand er \ and seven other persons named, of whom Joseph C. Yates, the origin al <^-^U^ [ defendant in this action, was one , "and to their h eirs and assigns^F or- "Z^'J^^^ ever ." The deed then declared that the conveyance was "upgntrusi, (J >. nevertheless, t o the on ly proper use, benefit and behoof of Cornelm s -,^ ^ ( Van Dyck," and twelv^ other persons named^ "members of St. Geo rge's \M^^' ) Lodge, m the town of Schenectady, and all others who at present a re J or hereafter may beco me members of the same, their survivorsan d * I successors forever, and to and for no other use, intent and purpos e \ whatsoever ." Then follows a covenant for further assurance to the releasees, their heirs and assigns, "to and for the uses and purposes hereinbefore specified and more particularly mentioned;" and a cove- nant for the qu iet and peaceable possession of the releasees, their heirs and assigns, "for the uses and purposes aforesaid." No conveyance of the premises, subsequent to this, was ever mad e. In 1797 Nicholas Van der Volgen died, leaving a will in which, not having specifically disposed of the reversion of the premises in ques- tion, he m ade Lawrence and Petrus Van der Volgen his residua ry devisees. In 1819 Petrus died, having devised all his estate by willj o Myndert Van der Volgen, Lawrence and Myndert bei ng thus the le gal representaTtives of Nicholas m a ny devisaPie estate in the premises which he may have had at the time of his death. f/fu ^ d/^y, I^ 1S33 the a ct to incorporate th e Utica and Schenectady Railroad yUA^*'*^^^ Company was passed. Under its authority the company instituted •^ J pr oceedings to appropriate the lot in question to the use of the roa d. i/t/v*^' To these proceedings Lawrence and Myndert Van der Volgen, Joseph C. Yates, now the sole survivor of the releasees in the before mention- ed conveyance, and certain persons claiming to be members of St. George's Lodge were made parties, all of the cestuis que use named ^^ in that instrument being dead. The commissioners awarded six cen ts Jly*^^^ I t o the two Van der Volgens, and $2755 to Yates "as trustee under J he I aA^ release ;" and the two former filed their bill in chancery against the Sfl^/^^^^ latter to compel the payment of the money to them as the representa- aA ' tives of the releasor, and entitled to the land or its proceeds. The vice-chancellor (Gridley) dismissed the bill, and this decree was affirm- ed by the chancellor (Walworth). 3 Barb. Ch. 242. The complainants appealed to this court. All the original parties to the. action had died since the commence - ment of the suit, and their personal representatives were the presen t parties. RuGGLES, Ch. J. In determining this case it will be assumed that the deed executed by Nicholas Van der Volgen to Robert Alexander and seven others for the use of Cornelius Van Dyck and twelve others, was a valid conveyance by lease and releas-C . operating by fpnce of the statute ofTuses. to vest in_\la.n Dyck and other'? ^y|in nrp t^pppjally nam- Ch. 1) MODE OP CONVEYANCE 243 e d as_cestins que use , an estate for their joint lives and the life of the survivor but not an estate in fee ; and that the limitation of the fur- ther use to "all others who were then or thereafter might become mem- bers of St. George's Lodge, their survivors and successors forever," was v okl for uncertainty ; and that the use of equjiabl^Jnter^ thus attempted to be given to the members of the lodge not specially named, ca nnot be sustained either as a legal estate bv force of the statute of uses, or as an executory trust, or as a charitable use . Upon these as- sumptions the only remaining question is wh ether upon the death o f^ t he last surviving cestui que use the estate resulted back to the reprg i sentatives of the grantor, who are the complainants . If it did so, thc}'^ are entitled to the money in controversy, otherwise not. Before the statute of uses, and while uses were subjects of chancery jurisdiction exclusively, a use could not be raised by deed without a sufficient consideration ; a doctrine taken from the maxim of the civil law, ex nudo pacto non oritur actio. In consequence of this rule the court of chancery would not compel the execution of a use, unless it had been raised for a good or valuable consideration ; for that would be to enforce donum gratuitum. 1 Cruise, tit. xi, ch. 2, § 22. _^id w here a man made a feoffment to another w^ithout any consideration . yji* equity presumed that he meant it to the use of himself : unless he ex - pressly declared it to be to the use of another, and then nothing was presumed contrary to his own expression s. 2 Bl. Com. 330. If a per- son had conveyed his lands to another without consideration, or dec- laration of uses, the grantor became entitled to the use o r pernancy of the profits of the lands thus conveyed. T his doctrine was not altered by the statute of uses. Therefore it />">■ ^ a •/ /I became an established principle, t hat where the Ic.gal seizin or pos_s es- t/yt^L^O-'*^''*^ s ion of lands is transferred by any common law conveyance or assu r- C^ l,,*.**^^ ance, and no use is expressly declared, nor any consideration or ev i- ^ '' dence of intent to direct the use, such use shall result back to the origi - nal owner of the estate ; fon^h^re t here_is ne it her consideration noj - declarati on_ofuseSj nor any circumstance to show the in te ntion of the parties^ it cannot be supposed that the estate was intended to be given away. 1 Cruise, tit. ii. ch. 4, § 20. B ut if a valuable consideration appears, equity will immediatel y \ (jiA A/y^'^CJ^ raise a use_correspondcnt to such consideration . 2 Bl. Com., 330. And / { J in_such case no use is expressly declared, the person to >vhniTi th er G{h^» l egal estate is conveyed, and from whom the consideration moved, wj llj be entitled to the use . The payment of the consideration leads the use/ unless it be expressly declared to some other person. The use results t o tlie original owner where no cnnsiderg tinn ap pears, because it ca n- not be supposed that the estate was intended to be given away ; and b y ^-^ the same rule it will not result where a consideration has been paid , b ecause in such case it cannot be supposed that the parties intended the lajid should go back to him who had been paid for it . The statute of uses made no change in the equitable principles which / ^ 244 DERIVATIVE TITLES (Part 2 previously governed resulting uses. It united the legal and equita ble estate, so that a fter the statute a convevance of the use was a conve y- ance of the land : and the land will not result or revert to the original owner except where the use would have done so before the statute was passed. Cruise, tit. x, ch. 4, § 20. It is still now, as it was before the statute, "t he intention of the p ar- ties to be collected from the face of the deed that gives effect to resu lt- ingjjses^' 1 Sanders on Uses, 104 (Ed. of 1830). As a general rule it is true that where the owner for a pecuniary consideration conveys lands to uses, expressly declaring a part of the use, but making no disposition of the residue, s o much of the us e as t he owner does not dispose of remains in him. Cruise, tit. xi, ch. 4, § 21. For example, if an estate be conveyed for valuable consideration to feoffees and their heirs to the use of them for their lives, the re- mainder of the use will result to the grantor. In such case the intent of the grantor to create a life estate only and to withhold the residue of the use is apparent on the face of the deed ; the words of inheritance in the conveyance being effectual only for the purpose of serving the declared use. The consideration expressed in the conveyance is there- fore deemed an equivalent only for the life estate. The residu£ -of the u se rema ins i n or results to the grantor, because there was no gra nt of it, nor any mtention to grant it, and because it has never been p aid But the general rule above stated is clearly inapplicable to a case i n • 'f'Jiu^ which the intention of the grantor, apparent on the face of thejd eed. fjji //^ A'**'*^ J^to dispose of the entire use, or m other words of his whole estate in he land . Such is the case now before us for determination. The consideration expressed in Van der Volgen's deed was £100; and it is perfectly clear on the face of the conveyance t hat he intended to p art with his whole title and interest in the land. He limited the use by the terms of his deed "to Cornelius Van Dyck and twelve other members of St. George's Lodge in the town of Schenectady, and all others who at present are, or hereafter may become members of the same, their survivors and successors forever." He attempted to convev the u se and beneficial interest to the members of that Indo le either as a corp o- rate body, capable of takmg bv succession forever, or to that associ a- ti on for a charitable use or perpetuitv. In either case, if the convey- ance had taken effect according to the grantor's intention, it \vould h ave passed his whole title , and no part of the use could have resu lt- ed to him or his representatives. Admitting that the declaration of the uses was void except as to the cestuis que use who were specially named, and good as to them only for life, y et it cannot be doubted that the parties believed when th e deed was executed that the grantor conveyed his whole title in fee, an d t he intentions of the parties that the entire use and interest of th e g rantor should pass,_ is as clear as if the limitation of the whole use •had been valid and effectual. This intent being established it follows, Cy(^ Ch. 1) MODE OF CONVEYANCE 245 as a necessary consequence, th at the sum of ilOO consideration was p aid and received as an equivalent for what was intended and supposed t o have been conveved . that is to say for an estate in f eg. The express declaration of the use in the present case, instead of being presump- tive evidence that the grantor did not intend to part with the use in fee, is co nclusive evidence that he did so intend ; and the extent of the express declaration is as much the measure of the consideration as if the whole of the declared use had been valid. T he complainant's claim t o the resulting use, or reversion of the land, being founded solely on "^ tl ie assumption that the grantor never was paid for it, must, tlierefore . f ail because the assumption is disproved bv the deed itsel f. > A use never results against the intent of tlie parties. " Where theie i s any circumstance to show the intent of the parties to have been that t he use should not result, it will remain in the persons to w^hom th e l egal estate is limited.^ " 1 Cruise, tit. xi. Use, ch. 4, § 41. In this case there are at least two such circumstances. They have already been alluded to ; first, the intent expressly declared t o convey the land in fe e t /\t^tj^rUji ^\ P C in perpetuity for the benefit of the members of St. George's Lodge . C^ This effectually repels the idea of a resulting use . The two intents -'<*-'*-*• •"r^-^-'^ -.. are incompatible. Secondly, the p ayment of the purchase money, o f jj ^XjlJUI'^ rv) which enough has been already said . If it be said that the express declaration is a presumptive proof that the grantor did not intend that the grantees of the legal estate should have that part of the use which was effectually declared, the answer is, that the express declaration is proof at least equally strong that he did not mean that the use should result to himself. Conceding then that the intention of the parties in regard to this residue of the use cannot be carried into effect, the equity which governs resulting uses settles the question between them. It gives the residue to the grantees because the grantor has had the money for it, and the language of the convey- ance is sufficient to pass it. The g^rantor cannot have the purchas e money and the land also . Payment of the, purchase money for th e -j^ entire title, vests the entire use in the grantees , excepting only so much of it as may be effectually declared for the benefit of some other per- son. It was insisted on the argument that where an estate is conveyed for particular purposes or on particular trusts only, which by accident or otherwise cannot take effect, a trust will result to the original owner or his heir; and that the present case falls within that principle. We were referred on this point to Cruise, tit. Trust, ch. 1, § 56. But on looking at the cases cited by Mr. Cruise, they are found to be cases not , of uses, but of active trusts ; all excepting one created by devise, where of course no pecuniary consideration was paid, and the land therefore was not diverted from the heir-at-law on the failure of the trust. The case in which there was a conveyance in trust has no resemblance to the case now in hand. That the rule above cited from Cruise is in- applicable to the present case appears on Sir Edward Coke's author- 246 DERIVATIVE TITLES (Part 2 ity, in The Queen v. Porter, 1 Rep. 24, 26, that upon a feoffment made without consideration to charitable uses void by statute, the feoffee should, notwithstanding the declaration of such uses, be seized to the feoffor and his heirs; but that if the feoffor had reserved but a penny rent, or had taken a penny in consideration of the feoffment, then, al- though the statute makes void the use expressed, yet the feoffees shall be seized to their own use and not to the use of the feoffor. This was said in the argument for the defendant Porter; and Coke, who was solicitor for the Queen, in a note at the end of the case, referring by a marginal note to this part of the argument, says: "And it is good policy upon every such feoffment (to charitable uses) to reserve a small rent to the feoffor and his heirs, or to express some such consideration of some small sum, for the cause before rehearsed." Thus it appea rs t hat upon a feoffment to a void use, upon a pecuniary consideration . y^ however small, the t i tle vests m the feoff'ee for his own benefi t. The conveyance in the present case was by lease and relea se, which oper- ated in this respect like a feoffment, and vested the estate, legal an d equitable, in the releasees, from and after the expiration of the valid use. Whether they took this residue of the estate as tenants in common or as joint tenants is a question which does not arise in this case. It has been assumed that the use expressed in favor of the members of St. George's Lodge, not specially named, was not valid as a charitable use. But it was not necessary to decide that question. The decision of this case must not be understood as settling any question as to the title to the money in controversy, except that no part of it belongs to the complainants. Judges Mason, Morse, Johnson and Gardiner concurred in the foregoing opinion. Willard and Taggart, J J,, dissented. D ecree affirmed . *^° 65 Cf. JIcElroy v. McElroy, 113 Mass. 509 (1S7.3), where the case, as stated in the syllabus, was as follows: A, by deed of wa rranty, wifh covemmts to the "grantee, his heirs and assiajns," and i n consideration of one dollar p aid by B. (his brother), "trustee of" Q. ^another brotner), and of "the love an"cl atfec- ta us tion" he liore to C, c onveyed a parcel of land to B., "it being my intention" " c onvey" to B., "in trust tor" C.^ " to nave ann lo no ia to t he said grante e, h. heirs and assigns, to his and tlieir use and liehoorTort^VH r. i;^ it was ht ^Fcl fHat the re was a resuitlflg tl'hst in the grantor m me remainder after th(; lite estate im — " ' •" ^^rxV Ch. 1) MODE OF CONVEYANCE . 247 (B) Uses Raised Independently of a Common Lazv Conveyance THE STATUTE OF ENROLMENTS Be it enacted by the authority of this present Parliament, That from the last day of July, which shall be in the year of our Lord G od 1536 , no mano rs, lan ds, tenements or other hereditaments, shall pass, alter or ch ange from one to another, whereby any estate of inheritance^ or freehold shall be made or take effect in any person or persons, or any use thereof to be made, by reason only of any bargain and sale there- oTj e xcept the same bargain and sale be made by writing indented s ealed, and inrolled in one of the King's courts of record at Westmin - ster^ or else within the same county or counties where the same manors, lands or tenements, so bargained and sold, lie or be, before the Custos Rotulorum and two justices of the peace, and the clerk of the peace of the sarne county or counties, or two of them at the least, whereof the clerk of the peace to be one ; and the same enrolment to be had and made within six months next after the date of the same writings in- dented ; the same Custos Rotulorum, or justices of the peace and clerk, tak ing for the enrolment of every such writing indented before them , where the land comprised in the same writing exceeds not the yeax ly v alue of forty shilling s, ii. s. that is to say, xij. d. to the justices, and xij. d. to the clerk; and for the enrolment of every such writing in- dented before them, wherein the land comprised exceeds the sum of xl. s. in the yearly value, v. s. that is to say, ii. s. vi. d. to the said jus- tices, and ii. s. vi. d. to the said clerk for the enrolling of the same; and that the clerk of the peace for the time being, within every such county, shall sufficiently enroll and ingross in parchment the same deeds or writings indented as is aforesaid ; and the rolls thereof at the end of every year shall deliver unto the said Custos Rotulorum of the same county for the time being, there to remain in the custody of the said Custos Rotulorum, for the time being, amongst other records of every of the same counties where any such enrolment shall be so made, t o the intent that every party that hath to do therewith, mav_j :e- sort j.nd see the effect and tenor of every such writing so enroU ^d. "TLProvided always, That this act, nor any thing therein contained, extend to any manner lands, tenements, or hereditaments, lying or be- ing within any city, borough or town corporate within this realm, wherein the mayors, recorders, chamberlains, bailiff's or other officer or officers have authority, or have lawfully used to enroll any evi- dences, deeds, or other writings within their precinct or limits; any thing in this act contained to the contrary notwithstanding. St 27 Hen. VHI, c. 16, (1536). 248 . DERIVATIVE TITLES (Part 2 GREY & EDWARDS CASE. (Court of King's Bench, 1577. 4 Leon. 110.) I In an attaint by Grey against Edwards it was holden by Wray, . Y^ V Gaudy, and Jkoffries, that if one makes a deed, and that by these '■^1^ . L' words (dedi) conveyeth lands to another, wrthou^_aiiy_jwwxh_^f_bar- W*^ V r gai p and sal e, and that for a sum of money ; if tlie deed be debito T .-j^ mode enrolled, the use ^hall x>ass as well as if the words of_barggin and s^Jj&Ji ad been in the deed^ because that a sum^ rnoney was paid for tlie Iand.«» LUTWTCH V. MITTON. (Court of Wards, 1620. Cro. Jac. 604.) It was resolved by the two Chief Justices, Montague and Hobart, and by TanfiEld, Chief Baron, that upon a d eed of bargain and sale for years of land s whereof he himself is in possession, and t he ba r- gai nee never entere d; if afterwards the bargainors make a grant of the reversion (reciting this lease) expectant upon it to diverse uses that it is a good conveyance of the reversion ; and the estate was executed and vested in the lessee for years by the statute; and was divided from the reversion, and not like to a lease for years at the ( jL-^ti,' common law; for in that case there is not any apparent lessee un- til he enters : but here, by operation of the statute, it absolutely and M-.4^!LCk actually vests the estate in him, as the use, b ut not to have trespas s ^. without. _entry and actual possession: wherefore they would not per- "^ mit this point to be further argued. JACKSON ex dem. HUDSON v. ALEXANDER. (Supreme Court of New York, ISOS. 3 Johns. 484, 3 Am. Dec. 517.) This was an ^ction of eiectment . for lot No. 68, in the town of Mil- ton, in the county of Cayuga. The cause was tried before Mr. Jus- tice Spencer, at the Cayuga circuit, on the 1st July, 1808. On tlie trial, th e pla in tiff gave in.evld e nce an exemplification of a patent, da ted t he 8th July, 1790, grantmg the lot in question to Joseph Brown, for his military services, and a writmg executed by Brown, in the f ollow- ing- words : "F gr value, received .of Dani el Hudson & Co., I hereb y make ov gr a nd grap't for m yself. heirs7 ana executors, unto the tJUJd Daniel Hud- •8 Taylor v. Vale, Cro. Eliz. 166 (1589), ace. Ch. 1) MODE OF CONVEYANCE 249 s on & C o., his hei rs and assigns, my right and claim on the public j or 66u acres of "land. " Witness my hand and seal, tli'is 7th day of May, 1784. "In presence of • Joseph Brown. [L. S.] "Solomon Coures. "John Dolson." A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the above facts ; and it was agreed, that if the court should be of opinion, that t he instrument in writin g .from Brown to Hudson, one of the lessors of the plamtiff, was a sufficie nt c onveyance of the premises in question, then judgment was to be en - ter ed for the plg i intiff ; otherwise, the verdict was to be set aside, and a nonsuit entered. The cause was submitted to the court without argument. Thompson, J. This case has been submitted without argument, and the question presented for our decision is, u ^ether the instruipent in "^ w riting given by To_seph Brown to Daniel Hudson, be sufficient to con - vey the title to the premises in question. The want of any considera- tibn either expressed on the face of the instrument, or proved at the trial, is the principal objection to its operation. A ll deeds by whi ch l and may be convey e d^ d_erive their effect from the common law, ^ r ^ from the statute of uses. It cannot be pretended that this instrument can take effect as a common law conveyance, either original or deriv- ative. 4 Cruise, on Real Property, 100. I f it is to have any op era- t ion, it must be as a bargain and sale, by virtue of the statute of use s. That statute has given rise to several new forms of conveyance, which operate contrary to the rules of the common law. It is a gen- eral rule of the common law, that it is not absolutely necessary, that a consideration should be expressed in a deed. T he thoiight and dp - liberation, which was supposed to attend the making and executing of deeds, rendered them valid, without any consideration expressed . Soon, however, after the chancellors had assumed a jurisdiction m cases of uses, they adopted the maxim of the civil law, "ex nudo pacto non oritur actio," and in conformity to it, they determined not to lend their aid |to carry any deed into execution, unless it was supported by some. consideration. 4 Cruise, 24. Hence it has becor|ie a univer sal -JL. ^ rule. _that a use cannot be raised without a consideration; and a, bar- ^ ir gai n and sale, being merely a conveyance of a us e, it cannot be_ eff,ec- t uai without a consideration, which must be valuable^ for the very name of the conveyance imports a quid pro quo. 1 Co. 176, a; San- ders on Uses, 340; 2 Inst. 671; 4 Cruise, 173-8. That a conside ra- tion is requisite to raise a use, is a principle recognized by almost ever y e lementary writer on the subject ; and has been repeatedly sanction ed b y adjudged case s. The expression of Sir Wm. Blackstone, (2 Comm. 296,) may be too broad when he says, that a deed or grant, made with- out any consideration, is of no effect, and is to be construed to enure, or be effectual only, to the use of the grantor; yet Professor Chris- t ^ 250 DERIVATIVE TITLES (Part 2 tian, in his note on this passage, admits this position to be true with respect to a bargain and sale. B aron Corny n, also, says, that n har.n -ain a nd sale of land, whereby a n.^e. arises^ niighf tn he made upon. ^ v aluable consideration, oth e rwise no use _ arises ; and the considera- tion must not be too general, but must import a quid pro quo. 2 Com. Dig. 6; 3 Com. Dig. 275-7. We find the same principle rec- ognized by the late editor of Bacon's Abridgment, (1 Bac. Abr. 469.) Shep. Touch. 220. It is there said, that by a bargain and sale of i and no use arises, unless there be a consideration of money ; for selling, ex vi termini, supposes the transferring a right of something, for mon- ey, and i f there be no such consideration, it may be an exchang e, 3 Qovenant to stand seise37a grant, & c. y but can be no sale within the_ stat- ute. The judgnient of the court, in Mildmay's Case, 1 Coke, 176, was governed by the same principles ; and in Doe ex dem. Milburn v. Salkeld, Willes, 675, Lord Ch. J. Willes, in delivering the opinion of the court, upon the nature and operation of a deed, set forth in the case, observes, it cannot be considered as a bargain and sale, be- cause there was no money consideration. ~~ In the case of Ward v. Lambert, Cro. Eliz. 394, the deed recited, "that whereas I. S. was bound in a recognizance, and other bonds for him, he, for di vers good consid erations, bargained and sold the land to him and his heir^; and this~was held not to be a good bargain and sale. T he court said, that in every bargain and sale there ought to be a quid pro quo: but thevendor there had nothmg for his land^ and t herefore, it was void. If a man give land, or bargain, and sell land to his son, no use arises thereby. If, then, a valuable consideratio n be necessar y to raise a use, the next ques tion ^vill be. whether the in - s trument before us, upon the fax:e ot it, miports the consideration r e- q uired in a bargain and sale, under th e statute of uses . If it does, it must arise either from the internal torce of the words "for value received," or by virtue of the seal. A valuable consideratign i'; define d i n the books, to mean money, or any other thing that bears a knqwn valuer 4 Cruise, 24. This court, in the case of Lansing v. AIcKillip, 3 Caines, 286, considered the words, for value received, of little force and importance of themselves, towards making out a consideration. Independently of that decision, however, I cannot discover more effi- cacy in these words than in many others which have been used in in- struments, that have been adjudged inoperative as bargains and sales. All the cases I have cited to show the necessity of a considera tion. plainly inHi(^ ate, that if it is to be inferred fr om the face of the dee d, i_t^ ouoht to be so ex press ed as necessarily to import value . It rnu st not, i n the langua ge^ ot Baron Comyn, be too general. It seems to me, tTiaFas much rnay be inferred from "the word consideration as the word value. And it has repeatedly been adjudged, that an ac- knowledgment of the receipt of a consideration generally was not sufficient. Although this may have the' semblance of a technical nicety, incompatible with the broad principles of justice, yet the rule appears Ch. 1) MODE OF CONVEYANCE 251 to me to be too firmly established to be overturned. Many of the com- mon law principles, applicable to other contracts, cannot be applied to bargains and sales under the statute of uses. In Mildmay's Case, and also that of Ward v. Lambert, before refer- red to, the words^ di vers good considerations , were considered insuffi - c ient to raise a use. Leing- but general parlance, implying nothing, unles s e xpress; considerations were shown ; for otherwise none would be intended. So in Fisher v. Smith, 5 Vin. Abr. 406, note, the court were clear, that i f^one pleads a bargain and sale, in which no consideratio n 9f monev is expressed, th en he nn orht to supply it by an avermenLth at it was for mone j/ : and that the words, for divers good considerations, shall not be intended for money, without an averment ; but if the deed expresses, for a competent sum of money, it is sufficient, without showing the certainty ot the sum ; and none shall say that no money was paid; for against this express mention in the deed, no averment that no money was paid shall be admitted. An acknowledgment in th e d eed of the receipt of monev. ex vi termini, imij-orts value, and the amount of the consideration is immaterial . It has been repeatedly ruled that, if in pleading a bargain and sale, no valuable consideration is shown, it will be ill on demurrer. In many cases the verdict has been deemed to cure this defect, which must have been on the ground, that after verdict, the consideration is presumed to have been proved on the trial. 1 Lord Raym. Ill ; 1 Wils. 91 ; 2 H. Black. 261. Froni y njl fhp; rn ses referred to. it is evident that the court did not consider tl ie jAjtAjP >U^ s eaL as yirtuallv importing the requisite consideration; for the instrii - | nients. although under seal, were deemed inoperative, as bargains an d Pfr^ti^ hJLi sales . It would have been competent for the plaintiff, in the present case, to have proved a co nsideration paid, _(5 Yin. 507,) which, in my opinion, vvoukT liave'^Tnade the deecl eTifectual to transfer the title ; the word grant being sufficient to pass the land by way of use, (2 Mod. 253.) Under this view of the case, I should be inclined to grant a new trial, to give the plaintiff an opportunity of producing this proof, if in his power, without the expense of a new action ; but according to th e s tipulation in the case, a judgment of nonsuit, in my n])ini()n^ nngl it to be entered . Kent, Ch. J. I am of opinion that the deed from Brown to Hudson was sufficient to convey his interest in the premises. I agree that the deed, if it operates at all, must operate as a bargain and sale under the statute of uses. At the common law , a feoffment or lease was valid, without any consideration, in consequence of the fealty or homage which vvas inci- dent to every such conveyance. The law raised a consideration out of the tenure itself. But after the_statute of Quia Emptores. (18 Ed. I,) \''^ Perkins says, that a consideration became requisite eveJi to the validity ' • • of a feoffment, as none could be implied, since, according to tlie statute n o _f eudal duty or service resulted to the immediate feoffor . (Perkins, sects. 528-537.) The general, and the better opinion is, that the no- Ccn-voX^^/u, 252 DERIVATIVE TITLES (Part U tion of a consideration first came from the court of equity, where it was held necessary to raise a use ; and w hen conveyances to uses w ere i ntroduced, the courts of law adopted the <;nmp if1pa..p and held that a. consideration was requisite in a deed of hargajn and sal e. This new principle in the doctrine of assurances by deed, met, at first, with a very strong resistance from the ablest lawyers of the age. Plow- den, in his argument in the case of Sharington v. Stroffen, 1 Plowden, 308, 309, which arose upon a deed under the statute of uses, contended, with great force of reason and authority, that a deed, which was a solemn and deliberate act of the mind, did of itself import a consid- eration ; that the will of the grantor was a sufficient consideration, and it neyer could be called a nudum pactum. Lord Bacon, in This reading on the statute of uses, takes notice of this argument of Plowden, and gives it the weight of his sanction. "I would have one a se showed/' snid he, "\i Y men learned in the law, wIiptp" there 15^ - a deed, ^nd yet there needs a rnrr^ideratinn As for parole, the law ad- Ijudgeth it too light to give an action without consideration ; but a deed, /even in law, i mports a consideration , because of the deliberation and I ceremony in the confection of it; and, therefore, in 8 Reginais, it is (solemnly argued that a deed should raise a use without any other con- sideration." Bacon's Works, v. 4, p. 167. But notwithstanding this strenuous opposition, the rule from chancery prevailed, and it has_b een l ong' settled, that a consideration, expressed or proved, was necessa ry to give effect to aje ed of bargain and sale . I am not going to attempt to surmount the series of cases on this subject, though I confess my- self a convert to the argument of Plowden. I admit the rule that a consideration is necessary to a conveyance to uses ; but I think that here is evidence of a consideration, appearing on the face of the deed before us, sufficient to conclude the grantor, and to give effect to it as a bargain and sale. The rule requiring a consideration to raise a use, has become mere ly nomin;al. jmd a_matter of form ; for if a sum of money be mentioned, it is never an inquiry whether it was actually paid, and the smallest sum possible is sufficient: nay, it has been solemnly adjudged, that a __£epper-corn was sufficient to raise a use. 2 Vent. 35. Since, then, the efficacy of the rule is so completely gone, we ought, in support of deeds, to construe the cases which have modified the rule, with the ut- most liberality. The deed in the present case states, that "for value received of the grantee, he doth grant," &c., and can it now be permitted to the grantor to say there was no value received? Value received is equ iv- a lent to saving^ money was receiv e d, or a chattel was receive d. It is an express averment, ex vi termini, of a quid pro quo. In Fisher v. Smith, Moore, 569, there was a bargain and sale for divers consid- erations, and it was held not to be enough, without an averment, that it was for money. "But if the deed express for a competent sum of money, this is sufficient without mentioning the certainty of the sum. Ch. 1) MODE OF CONVEYANCE 253 and against this express mention in the deed, no averment or evidence shall be admitted to say that no money was paid." All the cases that I have examined, which say that a general consideration is not suffi- cient, are cases in which the words in the deed were for divers good considerations. I. have not met with any case which goes so far as t o say, that a n averment in the deed of value received by the grantor, \yas not sufecient It is said, in 2 Roll. Abr. 786, pi. n, that "an aver- ment that a bargain and sale was in consideration of money or other valuable consideration given, was sufficient." If the words had been for money received by the grantor, then the deed would have fallen exactly within the decision in Moore, and would have been good, ac- cording to the admission in all the books. I cannot perceive any es- sential difference between the two averments ; v alue received does, in j udpnent of law, implv monev. or its equivalent . The grantor must be estopped by this express averment in his deed. He admits not only a value, but a value received from the grantee ; and if we will not intend this value to be something valuable, or equal to a competent sum of money, we seem not to construe charters as they did in the case of Fisher v. Smith, and as the law axiom requires them to be exam- ined, benignly, and in support of the substance. The statute of 9 and 10 Wm. Ill, c. 17, regards those words of so much import, that if a bill contains them, the holder is then entitled to recover interest and damages against the drawer and endorser; and in Cramlington v. Ev- ans, 1 Show. 4, Carth. 5, Lord Holt laid great stress on these words. "I f the drawer^" he says, "mention for ynlnp rprpivpH thpn hp Jg chargeable at co mmon law ; but if no such mention is ma^ . thpn ymi must come upon the custom of merchants only ." I mention these au- thorities only to show that these words mean something ; and that, in certain cases, at least, the law has attached the meaning of real ac- tual value to the averment of value received, and that in those cases, it has been co nsidered as equivalent to saying for money receive d. The law from the beginning has been very indulgent in helping out deeds, on the ground of consideration. If no consideration be ex - pressed, one may be averred in pleading, or proved upon the trial. Mildmay's Case, 1 Co. 175 ; Fisher v. Smith, Moore, 569. In pleading a bargain and sale, in which no consideration is expressed, it was held, in Smith v. Lane, Moore, 504, that the bargainee need not aver payment of money, because it was implied. This was after^vards held otherwise; but it has been lately held by the Court of C. B. (2 H. Black. 259) that this averment was but matter of form, and the omis- sion of it cured, on a general demurrer. This last decision seems to have almost done away even the form of the old rule, for it can hardly be necessary to prove upon trial under the general issue, a fact which is matter of form, and not of substance. A plaintiff is bound to prov e onlv what would be considered as material averments, and matte rs which go to the substance of the actio n. 254 DERIVATIVE TITLES (Part 2 But I plac e mv opinion on the ground that the deed contains a suffi - cient averment of a consideration, to estop the grantor, and to give th e deed operation under the statute of uses., I am not apprized of any case which is an authority against this conclusion. In Lansing v. Mc- Killip, 3 Caines, 286, two of the judges intimated that value received did not supersede the necessity of averring and proving a considera- tion in a special agreement; but another of the judges went largely \ into the support of a contrary opinion. The case, however, was not decided upon that ground, but upon another, viz. that where the plain-, tiff alleges two good considerations in his declaration, he must prove them as laid. T he next point in the case is, whether the words, "make over a nd g^rant," be sufficient to convey Brown's interest in the land . Thfij^ord •A' graiitjias been held sufficient to pass land by way of use, 2 Mod. 253 ; TTRaym. 48 Though in its original meaning, the word ai)plied only to a conveyance of incorporeal hereditaments, which could not pass by livery of seisin, yet i n conveyances under the statute of uses, it is s ufficient, if the g^ranting words are competent to raise a use ^ for t he s tatute then performs the task of the ancient livery of seis in. Aly opinion on both points, accordingly, is, that the plaintiff is en- titled to judgment. Van Ness, J., and Y.\TEs, J-, were of the same opinion. Judgment for the plaintiff.*^ ^ ^K 1 6 7 The opinion of Spencer, J., to tbe same effect as the opinion of Thompson, J., is omitted. In a deed the consideration was recited as "four thousand three hundred dollars." with a line drawn throngh the "four thousand three hundred." .No consideration having been proved, the question was whether the deed could operate as one of bargain and sale. Catliu Coal Co. v. Lloyd, 180 111. 398, 54 K. E. 214. 72 .Am. St. Rep. 216 (IbOD). "AV heii tiip rotiv^i deration in a covenant to stand seised to uses, or in a bar- gain and sale, isguod^and t he person cert ai n , there that perscii may make a n a vernient that TlTe consideration was paid , an d according to the truth of TTi e case ; b ut when the person is uncei-tain and the coiisider.ition ffpiipr.-il there no,averi iiPiif cnn li^ f--^l^ T» bv anv nersom In the first case tlie averment by the particular person is but rechicing the general consideration to some cer- tainty, and making out that in particular, in favour of the i)erson who was before included in the general words, which is very reasonable, in case a good consideration were bona fide paid by him ; but in the latter case the intent of the covenantor was void ab initio, for it appearing that he designed nobody in particular, for the benefit of the use he would raise, no person in certain could aver any particular consideration why he should have the use. because it plainly appears by the deed he did not design him for the use an.v more than any other person, and the law will not give i" _ psp tn ^nvbn tiy contrary to th e ii],teiit of the party mentioned in the seUlement, " etc. Gilbert's Uses (Sugdeu's Edl) 4rJ. See Mildmay's Case, 1 Oo" i'».4^ or form of conveyance, b ut an intent that the land shall pass at a ll ^ 1^ e vents one way or other j ^ ^^^^Xjla^ Lord Hobart, (who was a very great man,) in his Reports, fo. 277, says, "I exceedingly commend the Judges that are curious and almost subtil, astuti, to invent reason and means t o make acts according t o t he just intent of the parties, and to avoid wrong and injury, which by rigid rules might be wrought out of the act ;" and my Lord Hale in the case of Crossing and Scudamofe, 1 Vent. 141, cites and approves of this passage in Hobart. A 1 t hough formerly, according to some of the old cases, the mode- O r f orm of a conveyance was held material, 3^et in later times, where th e inteM appears that the land shall pass, it has been ruled nt h^ ^wise^ n nd certainly it is more considerable to make the intent good in passing the estate, if by any legal means it may be done, than by considering the manner of passing it, to disappoint the intent and principal thing, which was to pass the land. Osman and Sheafe, 3 Lev. 370. Upon this ground we go. We are all of opinion that in this case there is every thing- nere'^'^a ry t o make a good and effectual covenant to s^ d seised to uses .cTFirstT here is a dee^ ^ecoridl>^^ere are apt word s, the word g^rant alone would have been siithcient7but there are other words besides which are ^ ^i material ; viz. a covenant that the grantor has power to grant, and a • ^^^^ \*T%n covenant that all fines, recoveries, &c. of these lands shall enure to the* /»j!!1jx>m-*'»^ uses in the deec^ ^ "Thi^ dlyf* the cov enantor was seised in fey'^'^ourthlv.^ ' *^« * here appears a most plain intent that Wilkinson the lessor of the plain - ' » , tiJLsbould have the lands in case C. Kirby died without issue. And y. ^^*^ ^^^ ^M^sth', here is a p roper consideration to raise an use to the lessor of the (Ip plaintifL for the covenantor in the deed names him to be the eldest son 6, ^^^""^Vj^ of his well-beloved uncle; tl^seare all thej:ircumstances necessary to aJcAjl/^^^^ make a good deed of covenant to stand seised to uses In support of their opinion the Chief Justice only cited and observed /t^"*-* ^ '^ upon these cases, viz. Crossing and Scudamore, 1 Mod. 175, 2 Lev. 9, 1 Vent. 137; Walker and Hall, 2 Lev, 213; Coultman and Senhouse, Tho. Jones. 105, Carth. 38, 39; Baker v. Hil 2 W. & M. B. R.; Os- min and Sheafe, 3 Lev. 370. The Chief Justice lastly cited two of the strongest cases mentioned for the defendants, as Hore and Dix, 1 Sid. 25, and Samoh and Jones, 2 Vent. 318, and said he did not (for his own part) understand them; and that if he had sat in judgment in those cases, he should have been Aig.Pbop. — 17 /, a diMjJi 258 DERIVATIVE TITLES (Part 2 of a different opinion in both ; however, he said the present case dif- fered from these two cases. Lastly, he said the whole court were cl ear of opinion that a man seised might covenant to stand seised to thejise qf another person after the covenantor's dea th, the plain tiff. «» MURRAY V. KERNEY. Postea delivered to (Court of Appeals of Maryland, 1911. 115 Md. 514, 81 Atl. 6, 38 L. [N. S.] 937.) R. A. Pattison, J., delivered the opinion of the Court. In this case the appellee, pl amtift" below, filed his bill allegino^ that h e was th e nwnpr, in fpp 'di mple, of a lot of land in Baltimore Citv. s it- u ated at the corner formed by the intersection of the west side of Cen - t ral avenue and the southeast side of Gav street that he had acquired from one Jane J. Murr ay by deed d ated September 13th, 1905. The bill alleges .that Jane J. Murray a cquired title to this property by written a g ;reement executed on the 2d dav of December, 1885, by th e s aid Jane J. Murray and her three sisters who were at the time owne rs of said lands as tenants in common. The agreement was executed and acknowledged by them with all the formalities required in the execu- tion and acknowledgment of deeds and was duly recorded, and is as follows : "We, the undersigned, daughters of the late Peter and Elizabeth Murray, named and subscribed to this instrument of writing, do ente r i nto an ag reem ent that for the benefit of each and all of them nam ed a nd subscribed to this agreement and are now living in and owne rs i ointlv the property being their joint interest left them, Ly icy A. Murray, Ann Murray, Sara A. Crawford and Jane J. Murray, as heirs of the above Peter and Elizabeth Murray, property situated on the southwest corner of Gay and Canal streets (now Central avenue) ; th e o bject of this is that in case that if by death should take one of t he p arties, the other three sisters are the owners and if two are taken b v cf eath, then the two remaining sisters are the owners, and if by dea th o ne of the two sisters is taken then the last surviving sister is the ow n- er^ and in order to carrv faithfully this agreement, we hereunto set ou r iTgnH-:; an ij ^ppk anH ^nh^r rihe nur names this second day of Decem ber. in the y ear ei g-htP Pn j^nnrlrpH anH f^JCTJ-ily-flvp " The bill further alleges that t he three sisters all died in the lifetime 6 9 There have been many cases in Avhicb the courts have been astuteto u p- h old a^Ht^ed as operative in some maimer ! See Cheney v. WatUiiis, 1 HaT. S, J. riMd.1 .'^27, 2 Am. l)po. .'S.SO (1804). snst ainJDir as a feoffment a deed defective as a bart^ain and sale, for wnnt of a pro;)er consideration : I'erry v. Price, 1 .Mo. 553 (181'5), same; Havens v. Sea Shore Land C^o., 47 N. J. Eq. 365. 20 Atl. 497 (1890), s ustaining as a bargain and sale a conveyanpp in the words "reinjjs e. release and onitplniin," void as a I'elease liecause the estate was in expectanc y; Lambert v. Smith, 9 Or. 185 (1881) ; ileld v. Culumijet, 4 tSawy. 5:J3, i'eo: Oas. No. 4,7tJ4 (1864). ..'-A Ch. 1) MODE OF CONVEYANCE 259 of Jane J. Murray, l eaving her surviving them , the owner, as it alleg es. o f said propertv under and by virtue of said agreement, and that sh e d ied on the 26th dav of Tanuary. 1908 . The bill also alleges that said property, for a long time prior to the acquisition of it by the plaintiff, was o ccupied bv him and wa's in his possession at the time of the fili ng o f the bill That at the time of the death of the said Jane J. Murray, she was seized of the property adjoining the property so acquired by him, which was also embraced in the property mentioned and describ- ed in the agreement above mentioned, signed by th§ said Jane J. Mur- ray and her sisters aforesaid, and w hich he r h^jrs, nft^r her dpnth, a greed to ^pll tn th^ "Mprth r.ny S;trfp ^ Perman mt Rnilrliiio- and T.Q.nn Association of B^ ltimn rp Tify , but upon examination the purchaser was not satisfied with the title of Jane J. Murray thereto, its objection being based upon the sufficiency of the agreement above given to pass title to her in said lands, and proceedings were instituted in the Circuit Court for Baltimore City "for the sale of said property and the ratifica- tion of the contract of sale to the said corporation, which proceedings have long since been completed and the title of said adjoining property conveyed to the said corporation." A s the legal sufficiency of the title of Tane T. Murray in and to_ the - . • "-^^ la nds sold as aforesaid had been questioned , the ^l^^tift" thought i tC/'<*|klAy4*^^ best, as he alleg es^ ^f^ ha^^ pve<:"'^pd to him, by the heirs of fane T . cCtA^ Murray, a confirmatory deed for the propertv so conveyed unto him by *^*'*'^^ . her as aforesaid. To this end he called ui)on the heirs to execute the ^ confirmatory deed and all of them executed the same except the d e- ^^|t^^:i^^=^ f endants, who refused to do so- It was then that he determined to file /TjLu/i4 ^0% the bill asking the Court, as he did, to construe said agreement and by ^y -. *y its decree "remove any cloud which might exist or be supposed to exist"-^'*''*^'^^ '■'*''^ ' upon his title to said lands. The d efendant s Mary J. Murray and William A. Murray ansvi^ered, stating tiiat as to the construction of the paper writing or agreement mentioned in the bill, and as to the relief prayed therein, they consent- ^i^jw^ju* ^ ed to and desired that the Court should pass such decree as to it might seem just and proper in the premises. The other defendants, James E. Murray and Thomas F. Murray, also answered neither admitting nor denying the things alleged in the bill, but requiring proof thereo f. To these answers the general replication was filed, and the testimony of the plaintiff alone was thereafter taken, which substantially sustains the allegations of the bill. The qu estion presented by this appeal is, did Jane J. Murray, th e s urvivor of the sisters, who were, as it is conceded, at the time of tj ie execution of the paper writing above set forth, the owners of sa id-land i nvolved in these proceedings as tenants in common, acquire their in- t erest therein under and by virtue of such written agreemen t? ""It is not difficult to ascertain the meaning of said paper writing. It was evidently the purpose and intention of the sisters that they should continue to own said property so long as all of them should live, and 260 DERIVATIVE TITLES (Part 2 upon the death of any of them tlie three surviving sisters should be the owners of said property, and upon tlie death of tlie second sister the two surviving sisters should be the owners thereof, and upon the death of tlie third sister the surviving sister was to become the owner of the entire interest formerly held by the four sisters, or the owner of the property. B ut is this instrument of writing legally sufficient to e ffect the purpose and meaning aforesaid ? "Where theintent of the grantor to pass the land is apparent, if for any reason the deed or in- strument by which the transfer of title was intended to be effected can not operate in the way contemplated by the parties, t he Court, if pos- s ible, will give it effect in some other way, and judges have been v ery a stute in s uch cases in their en deavors to make the conveyance oper a- tive one way or the other t o carry mtoeffect the intention of the gr gji^ toTor dono r." Bank of U. b. v. Housman, 6 Paige's Ch. (N. Y.) 534. If for any of the reasons assigned by the appellant the instrument of writing mentioned in this case should be inoperative as a common law deed, weJlmk that it is effective as a covenant to stand seized to u ses under the Statute of Uses . ^ ^ /^ /' Blackstone defines a covenant to stand seized to uses as " A speci es U^f,.,^^ ^ I o f conveyance by which a man seized of lands, covenants in consider a- B Aji>*^ \ t ion of blood and marriage that he will stand seized of the same t ojhe m^ Z**"^^ I u se of his child, wife or k i nsman, for life, in tail, or in fee" Hut this ^>^, I conveyance can only operate when made upon such weighty and inter- '^^^ Vesting considerations as those of blood and marriage." Book 2, 338. " No particular word or form of words is necessary to constitute a ' covenant to stand seized. ' The consideration is the chief requisite to characterize it and to support it as such a conveyance. This con- sideration is bl ood and marriag e. I f the consideration appears in a deed, though there be no express words of consideration, yet it is s uffi- c ient to raise a use by way of conveyance. " Barry v. Shelby, 5 T^nn. (4 Hayw.) 229, 231. Lord Coke, in treating the Statute of Uses, says : " The intention o f the parties is the principal foundation of the creation of uses ," and m Slay v. Mehan, 1 Lewt. 782, the Court says: "There is no covenant that admits of such a variety of words as that of a covenant to stand seized." Hayes v. Kershow, 1 Sandf. Ch. (N. Y.) 263. T he covenant must, of course, be by deed in order to constitute it a covenant; and the usual term employed in creatmg it is. "covenan t." though any other words may be adopted which are tantamount there- to. 2 Washburn on Real Property, § 1379. The deed or instrument of writing that was before the Court in the case of Fisher v. Strickler, 10 Pa, 348, 51 Am. Dec. 488, was as fol- lows : "Now, know ye, that we, the said Jacob Strickler and Christian Strickler, have this day agreed with each other, that in case if one of them shall happen to die unmarried, or intermarried and without law- ful issue or issues that should arrive to the age of twenty-one years, that then and in that case the survivor of them shall be the sole heir Ch. 1) MODE OF CONVEYANCB 261 of the deceased one both to the real and personal estate of tlie deceas- ed, without any further deed or conveyance ; to hold the real estate as well as the personal estate of the deceased unto the survivor and to his heirs and assigns forever." The Court in adopting the opinion of the lower Court said : "Tloe instrument of writing set forth in this case is what is technically c alled a covenant to stand seized to uses. The '^t' words are sufficient to create the covenant7the'iriteiitron being apparent on the face of the deed, that each party should stand seized to the use of the qtlier surviving him, under the circumstances stated. And the consideration of n at ural lov e, though not expressed, is manifest from the relation of the parties. Milbourn v. Salkeld, 'WilTes, 673 ; Bedell s Case, 7 Rep. 40; Crossing v. Scudamore, 1 Ventr. 137; 3 Cruise's Dig., Part. IV, 186-190." I n this case, as it is conceded, the four sisters were seized in fee, as t enants in common, of the lands in question, and being so seized ex- ecuted the deed or agreement above set forth. Each was seized of._a o ne-fourth undivided interest in said land and by this deed or instr u- ment of writing each covenanted to stand seized of her interest therei n t o her use during her life , and upon her death to the use of such of her sisters as surviv ed hei. successively to and including the last sur- vivor, who became seized thereby, i n_fee. of the interest of all the sis- ters in said lands. From what we have said we do not think the Court below erred in its ruling and will therefore affirm its decree. Decree affirme d, with costs to the appellee. -^ />_£,tt._«->jr a-.^-^ ^l^^rx,"-*^ (C) Limitations Upon the Operation of the Statute of Uses TYRREL'S CASE. (Court of Wards, 1557. Dyer, 155.) Jane Tyrrel, widow, for the sum of four hundred pounds paid b y G. Tvrrel her son and heir apparent, by indenture enrolled in chanc ery in the 4th year of E. VI, bargained. _ so ld, g_a v e^ granted , covenante d, and c oncluded to the said G. Tyrrel all her manors, lands, tenements. &c., to have and to hold the said &c. to the said G. T. and his hei rs f or ever, to the use of the said Jane during her life, without impeacj i- ment of waste ; and immedi ately after her decease to the use x tf-the said G. T. and the heirs of his body lawfully begotten ; ^and in defa iilt of such issue, to the use of the heirs of tlie said Jane for eve r. Quaere well whether the limitation of tliose uses upon the habendum are not void and impertinent, because an use cannot be springing, drawn, or reserved out of an use, as appears prima facie? And here it ought to be first an use transferred to the vendee before that any freehold or inheritance in the land can be vested in him by the enrollment, &c. ex dem. LLOYD v. PAS SINGH AM. 262 DERIVATIVE TITLES (Part 2 •^ ■ And this case has been doubted in the Common Pleas bef(5re now : ,*^ut ideo quaere legem. But all the Judges of C. B. and Saunders, Chie f r^ ^^ J ustice, thought that the limitation of uses above is void, &:c. for sup- pose the statute of InroUments (cap. 16.) had never been made, but only the statute of Uses, (cap. 10.) in 27. H. VIII, then the case above ■^ A ^gtiKA^^-"^ could not be, because an use cannot be engendered of an use, &c. See 5. M'^'j^ M. 10 & 11 Eliz. & fol.^0 >v ^ I \ rLoMJl (Co"''^ of King's Bench, 1827. 6 Barn. & C. 305.) X m L/>'^^>^*''^^ Ejectment for lands in tlie county of Merioneth. Plea, the general X ^ ^, issue. At the trial before Burrough, J., at the last Summer Assizes 'ffl ^/P^^'^*'^wf ■^^^ Salop, it appeared that the lessor of the plaintiff claimed as devi see 1 ' (l ^ i n tail under the will of Catherine Lloyd, who was co-heiress, with >^, >f*f f her sister Mary, of Giwn Lloyd, who died in 1774. In 1746, by in- .^tv**'"*-! denture made between himself, G. Lloyd, of the first part, Sarah Hill of the second part. Sir Rowland Hill and John Wynne of the third part,, and Sir Watkin Williams Wynne and Edward Lloyd of the fourth part ; i n consideration o L- an intended mar ri age with the said _^rah Hill, and of a sum of £8000., being the marriag e .po rtion of the sa id ^a rah Hill, p aid or secured to be paid to him Giwn Lloyd, he. G iwn 0ovd, did grant, release, and confirm unto the said Sir Watkin W il- lia ms Wvnne and Edward Lloyd in their actual possession then bejn g, by yirtue of an i ndenture of bargain and s a le. &:c.. and to their he irs a nd assigns, certam premises therein particularly described . , an d, a mongst others, the premises in question ; to have and to hold the said premises with their appurtenances, unto the said Sir Watkin Wil- liams Wynne and Edward Lloyd, their heirs and assigns ; to the on ly p roper use and behoof of them the said Sir Watkin Williams Wynn e a nd Edward Lloyd, their heirs and assigns for ever. , i^pnp Vw^^ , never- t heless, and sub je ct to the several uses, intents, and purposes ther ein- a fter mentioned^ that is tosay, to theuseof_ the_ s^idJ^^wn Lloy J and h is heirs until tlie said in tenoe^^'nramage should take effect^ and from and after the solem nization of t he said intended marriage, then to t he use and behooi ot Uiwn JLloyd and Sarah his intended wife, a nd their assigns, for and during the term of their natural lives, and the longer liver of them, as and for her jointure and in lieu and full sat- isfaction of dower; and from and after the decease of such surv ij^or t o the use of Sir Rowland Hill and John Wynne, their executors, ad- ministrators, assigns, for the term of TOOO years, t o and for the sev- eral intents and purposes theremafter mentioned ; and from and after the expiration or other sooner determination of that estate, to tlie use TO See Sambach v. Dalton, Tothill, ISS (1G34) ; Jackson v. Cary, 16 Johns. (N. Y.) .^>04 (1819) ; Reid v. Gordon, 35 JVld. 183 (ISTi:) ; Croxall v. Shereid, 5 Wall. 2G8, 18 L. Ed. 572 (1866). Ch. P MODE OF CONVEYANCE 263 a nd behoof of tlie first son of the body of the said Giwn Lloyd _on the body of the said Sarah Hill, h is intended wife, lawfully to be begotten, and the heirs male of the body of such first son lawfully issuing; ^nd for _d^fault of _ such issue, to the use and behoof of the second son i n like manner ; and then to tlie daughters ; aj id for r lpf^nli- of snrh i ssue, to J:he use and behoof of th e ?aifl Oiwri T.lnyd, hi;:; heirs and assigns for eve r. And.it was thereby declared and agreed by and be- tween all and every the said parties to the said indenture, that the term of 1000 years thereinbefore limited to Sir Rowland Hill and John Wynne, w as upon trust that they did and should immediately after th e d ecease ofJ l Lwn Lloyd, by sale or mortgage ot the" whole or qny part t hereof, raise the '^^m nf ^39 00 ^^ be paid and applied in manne r t heremafter mentioned . And it was thereby declared and agreed by and between the parties to the said indenture th at a sum of £4000. of th e said sum of £8 000. should imme diately after the solemnization of t he saiH mtenfled marriage be p aid mto the hands of them the sai d Sir Rowland Hill and Tohn Wynne, upon trust that the same should be paid, laid out, and applied by them with all convenient speed in the purchase of freehold lands , tenements, or hereditaments in f ee s imple, in the county of Merio neth aforesaid or elsewhere in the pri n- cipa lity of Wales, or in that part o f Great Britain called Engbtid , with the approbation of them tlie said Giwn Llovd and Sar^h 11111^ -h is in- tended wife, or the survivor of tliem, testified by any deed or writing under the hands and seals of them the said Giwn Lloyd and Sarah Hill, and the survivor of them, duly executed in the presence of two or more credible witnesses ; a nd that the said lands, tenements, an d h ereditaments, when so purchased, and every part and parrel thereof . with their appurtenances, should be conveyed to them the said Si r Watkin Williams Wvnne and Edward Llovd , and their heirs, and t o t he survivor of them and his heirs , to and for the use and behoof of the several persons, and for such estate and estates as the premises thereinbefore mentioned, and thereby granted and released by the said Giwn Lloyd were conveyed, settled, limited, and appointed. And it w as thereby also further df^cj-jpr pd and agreed that in case th e re s hould be no issue of the said intended marriage and that the sa id S arah Hill should be minded by her last will and testament to give o r devise any sum not exceeding £4000.. or the estate thereby intended to be purchased therewith, or any part thereof as aforesaid, to any person or persons whatsoever, it s hould be lawful f^ ^^'^ fo'" h<>r thp s ajd Sarah Hill, notwithstanding her coverture^ to p; -ive and devise th e s ^me, or any part thereof, to such person or persons, and to and-J or s uch estate and estates, and such uses, intents, and purposes, as sh e s hould limit, direct and appoin t : and in such case they the said Sir Watkin Williams Wynne and Edward Lloyd should sta nd seised ofj all and every the lands, tenements, an3 hereditaments so to be purchased as aforesaid, to them and their heirs, t o and for such uses, inten ts, a nd purposes, as she the said Sarah Hill should, by such her last will, >«^. > 264 DERIVATIVE TITLES (Part 2 l imits direct, and appoin t ; and then and from thenceforth all and ev- ery the uses and limitations to the said Giwn Lloyd and his heirs, of and concerning the said lands, tenements, and hereditaments to be pur- chased as aforesaid, should cease, determine, and be absolutely void, to all intents' and purposes whatsoever. Gjwn Llovd died in 1774, and Sarah his wife in 1782. intestate, a nd without having had any issue . Catherine Lloyd, the testatrix, con- tinued in possession of the estate from the death of Sarah Lloyd un- til the time of her own death, in 1787. For the defendants, it w as c ontended, that the legal estate was vested in Sir W. W. Wynne an d Edward Lloyd, by the deed of 1746. and consequently, that neitli er Giwn Lloyd nor tlie testatrix had any legal estate ; and, therefore, th e l essor of the plaintiff could not derive any such estate from her . The learned Judge reserved the point, and the plaintiff having obtained a verdict, a rule nisi for entering a nonsuit was granted in Michaelmas term. BaylEy, J, I am of opinion that we ought not to make the rule ab- s glute for entering a nonsuit, but that there should be a new t rial in this case. Considering the length of time that has elapsed since the purposes of the settlement made by Giwn Lloyd were at an end, I think the question as to presuming a reconveyance of the legal estate ought to be submitted to a jury. The first point for our considera tion i s upon the construction of the settlement! for if it vested the legal e state in the trustees, then the lessor of the plaintiff had nni- the 1pi4_ ^4>— f use. That is admitted to be so in general, b ut a distinction has bee n ^ ^ca,^i^ t ak^n where the limitation is to A., to the use of A. in trust for B ., a nd it is said that then A. is in by the common law . That is true; but he is in of the estate clothed with the use, which is not extinguished, but remains in him. In the case of Meredith v. Jones, cited in argu- ment to show that where an estate is limited to A., to the use of A., he is in by the common law, it is said, "For it is not an use divid ed fr g n i.^^"'^ pstptp, as where it is limited to a strange r, j3Ut the use and th e e state go ■together ." That case therefore shows, that although the tr u stees in fliis case might be in by the common law, yet they were i n b oth of the estate and the use. There are two cases expressly in point. Lady "IVhetstone v. Bury is a very clear case, and the words used were precisely the same as those found in tlie deed in question, and it was there decided, and also in The Attorney General v. Scott, which came before Lord Talbot, one of the greatest real property lawyers that ever filled the office of Lord Chancellor, th at the le gales tate ves ts i n him to whom by the words of the instrument the use i^hmit ed, . , Upon the authority of these two cases, I am of opinion that the u se ^^-^ap«j%-* o f tlie estate in question was executed in the trustees.. Then, upon ' k "T- the other question tiiere is certainly some proi niH fnr prp=n"T'"g a *^: '^'^\ reconveyance ; b ut, on the, one hand. I think the Court would be going ^v*"s a great deal too far were they to make such a presumption, and, o n ^\j^' t he other, I think the lessor of the plaintiff ought to have an opp or- -yy^ V'l t unity of submitting that pojpt <"0 a j^^'X - The rule should, therefore, ■ ' l . be made absolute for a n^ej^J^rial. V^ ''^vjh HoLROYD, J. I agree with my brother Bayley, that in this case there ought to be a new trial. Upon the first perusal of the deed in ques- tion I had no doubt that the legal estate was vested in the trustees , having always understood that an use cannot be limited upon an use ; and although I was struck by the ingenuity of the distinction pointed out by Mr. Taunton, yet upon further consideration it appears to me that his argument does not warrant it. The argument is, that as t he tr ustees did not in the first instance take to the use of another, but / a o f themselves^ they were in by the common law , and not the statute : > ^. ""^ Cytrtr that the fi rst use was, therefore, of no effe ct, and t he case was to be I ^^^^ ^ c onsidered as if the deed had merely contained the second limitation \ t o use^ . Bu^ll^^J; is* nqt go. for although it be true that the trustees take the seisin by the common law, and not by the statute, yet they . a r;^ ta ke that seisin to the use of themselves, and not to the use of another . J-^dj^:^^ — ^ i n which case alone the use is executed by the statute.. They are, there - y'uJLAx^ -^ f ore, seised in trust fnr another, and the legal estate remains in them . yOy^i,*.^aXt^* As to the question of intention, even if it were intended that the deed should operate in a different mode from that pointed out by the law. V** S 266 DERIVATIVE TITLES (Part 2 w hen the le^al estate is ^iven to trustees, that Intention cannot count er- vail the law. But the intention appears to me~altogeffier doubtful ; the absence of trustees to preserve contingent remainders affording a st rong reason for supposing that the parties meant to give the leg al estate to the trustees . LiTTLEDALE, J. I am entirely of the same opinion. It is said, that by the construction now put upon the deed the intent of the parties will be defeated. • If we were not construing a deed, I should feel dis- posed to give a liberal effect to the intention, but if all matters of convenience and inconvenience which raise a presumption of intention are to be taken into consideration, as affording rules for the construc- tion of deeds, and are to have the eft'ect of overruling the plain words of such instruments, the law will very soon be thrown into utter con- fusion. Here, however, there is a balance of inconveniences, and therefore we may come at once to the legal construction of the settle- ment. I never entertained a doubt that a second series of uses cou jd not be executed . It is true, that certain cases shew these trustees to have taken the esta te by the common law, but tliev to ok it coupled with the use. The cases cited upon this point are perfectly clear, and they are well collected in a note, by Serjt. Williams, to Jefferson v. Morton, 2 Saund. 11, n. (17). However for the reasons given, I think that there ought not to be a nonsuit, but a new trial. Rule absolute for a new trial. URE v. URE. (Supreme Court of Illinois, 1900. 1S5 111. 216, 56 N. E. 10S7.) BoGGS, J. The ch ancellor entered the decree here appealed frpm on the theory th e tru st.cr eated by the second clause of the will of Mar ga- r et Ure, deceased, w as a passive, or dry^ust^, a nd that the Statu te of U ses instantly operated to vest the legal title to the real estate in j the c estui que trust . Whether such is the true construction of the clause is the only question presented by the record. The clause reads as fol- lows: "Second — After the payment of such funeral expenses and debts, I_givej d evise and bequeath t o my son John Francis Ure all niy cow s, bulls and calv es, except one cow and my horse s Rosy, Jessie and Doll, and tlie rema inder of my real and personal estate equally to my two sons, R obert Arnold U re and Jo hn Francis Ur e: Provided, however, that the portion of my estate that I hereby give, devise and bequeath to my son Robert Arnold Ure shall be held bv a trustee, and said t rustee t o be the executor of this my will hereinafter nanied, to hold and con - trol said property for said Robert Arnold Ure in trust, he, the said RobertArnolj^ Ure, to h ave th e income^ only, from said e_state_toJiis o wn use and benefit as long as he may live, and on his death said esta te to revert to his natural heirs," etc. \>t i>fe>^ Ch.l) MODE OF CONVEYANCE 207 The trust estate, as appears from the will, consisted of t^th real a nd pe £sonal property . The St atute of Uses has no application to persoj ial property, and the title to that portion of the trust property was not af- fected by that statute. 27 Am. & Eng. Ency. of Law, p. Ill, and cases cited in note 1 ; 3 Jarman on Wills, p. 51, note 2. Speaking of the rule of construction adopted in some instances when a trust estate consists in part of property the fee whereof necessarily vests in the trustee, it is said in Jarman on Wills, (vol. 3, p. 85, 5th Am. Ed.) : " It seems th at wl Tere a will is so expressed as to leave it doubtful whether the tes ta- to r mtended the trustee to take the fee or not, the circumstance that there is included in the same devise other property which necessarily vests in the trustee for the whole of the testator's interest affords j i g round for g iving. \hfi will thf s nnie rnnstruction as to the estate in qU£^Uop." The income of the estate, both personal and real, is be queathed t o sa id Robert Arnold Ure during his lifetime and the remainder in fe e d evised to his "natural heirs ." The trustee is empowered to "hold and control" the property in trust, etc., and these words measure and fix the duties of the trustee. The word "hold," which was a technical word as employed formerly in the tenendum clause of a deed, has now no technical meaning when used in such instruments. Bouvier's Law Die. "Tenendum"; Wheeler v. County of Wayne, 132 111. 599, 24 N. E. 625. Among others, the foljowing definitions of the word 'Uioldl' are given by Mr. Webster: " To derive title to : to retain in one's keep- i ng; t o be in possession oL l t o occupv : to maintain authority over. " The" word "control" has no legal or technical meaning distinct from that given in its popular acceptation. Webster employs the word "superin- tendence" as expressive of the meaning of the word "control," and gives the word "control" as one of the synonyms of the word "superintend- ence." The same lexicographer defines the word "superintendence" as follows : "The act of superintending ; care and oversight for the pur- pose of direction and with authority to direct." The word "manage" is defined to mean "to direct ; control ; govern ; administer ; oversee ;" (Anderson's Law Die.) ; a nd the words "control" and "manage" hav e be en held to be synonymous . (Youngworth v. Jewell, 15 Nev. 48.) Power to hold alid the duty to control the trust estate involve the custody and possession of the trust property, both real and personal, and s uch a trust is not merely passiv e. It is not indispensable to the power and duty of a trustee to r^ the trust property and collect the rent thereon, the devise shall in pcpress terms so empower him. It is e nough if the intent to invest ham with such power can be gathered from th e_^ll. 3 Jarman on w/lls (5th Am. Ed.) p. 56. It was mani- 'festly the intention of the maker of the will here under consideration, t he executor, as trustee, shoulg enter into and retain possession of the t rust estate during the lifetime of the said Robert Arnold Ure. and should diligently devote hijg energy^ judgment and discretion to the management and control oi the property , to the end that the greatest 268 DERIVATIVE TITLES (Part 2 possible incQme should be secured therefrom. The Statute of U ses does not exec ute a t rust o f t his character . Meacham v. Steele, 93 111. 135 ; Kirkland v. Cox, 94 111. 400; Kellogg v. Hale, 108 111. 164. The decree must be reversed, and the cause will be remanded for further proceedings in accordance with the views here expressed. Re- versed and remanded.''* -y:' SECTION 3.— UNDER MODERN STATUTES ABBOTT v. HOLWAY. (Supreme Judicial Court of Maine, 1S81. 72 Me. 298.) This is an a ction on the case for was te. The writ is dated Septem- ber 28th, 1878.*"""" The plea is the general issue and brief statement denying the plain- tiff's title and claim. At the trial it was admitted tliaf^ Jampc; Ab^<^^-t ^"'•^g, ^" the 30th of April, 1872, and long had been, the h jusband of th e plaintiff: that he died May 5th, 1875; tliat the defe ndant is the administrator on his es- tate ; that he owned, on the 3Uth of April, 1872, and long had owned, tlie premises described in tlie writ, a valuable farm in Pittston, upon which was a large timber and wood lot; that he continued to live on the farm with his wite managing and taking the crops tliereof until his death, she now surviving him ; tliat in the winter and spring of 1875, without the consent and against the remonstrance of the plaintiff, he caused to be cut and hauled to market, a quantity of mill logs, cut for t hat purpose, and n ot tor fencing or repairs. Since Abbott's death, his administrator has sold the lumber made from the logs and received the money therefor. The p laintiff" put in evidence the deed from James Abbott to h er, dated April 30th, 1872, embracing the premises described in the writ and upon which the alleged waste was committed, and proved i ts execu - tion an d delivery on the day of its date, and i ts record i n the Kennebec registry on the same day by plaintiff's procurement. It is made part of the case. 71 A tract of land was conveyed to H. upon the following uses and trusts : "This conveyance is made to the said H. as trustee to hold the said property for the sole use and benefit of K., v/ife of M., free from dominion, debts, or • liabilities of her present or any future husband, and the rents, profits, pro- ceeds of, or sale or profits of said property, or any portion thereof, shall be held under the same trusts." Was the le.^al estate vested in the wife? See Hart V. Bayliss, 97 Tenn. 72, 36 S. W. 691 (1896) ; Georgia, C. & N. Ry. Co. v. Scott, 38 S. C. 34, 16 S. E. 185, 839 (1892) ; Sutton v. Aiken, 62 Ga, 733 (1879). 1 Ch. 1) MODE OF CONVEYANCE . ^ . 2G9 (Deed) "^ *C^ "Know all men by these presents, tliat I, James Abbott of Gardiner in the county of Kennebec, i n consideration of one dollar paid by m y wife Clarissa B. Abbott, and for the purpose of providing and secur- ing to my said wife a comfortable support in the event of my decease during her life, the receipt whereof I do hereby acknowledge, do her e- by give , grant , bargain, s ell and convey, unto the said Clarissa B. Ab- bott of said Pittston her heirs and assigns forever a certain lot of land si tuate in said Pittston and bounded. * * * ^'This deed is no^ to take effect andop erate as a conveyance u ntil my decease , and inc ase 1 shall survive m y said wife, this d eed is not t o be operative _a s a conveyanc e, it beingthe sole purpose and object of this deed to make a provision for the support of my said wife if she shall survive me, and if s he shall survive me then and in that even t o nlv t his deed shall be operative to convey to mv said wife said pre m- i ses in fee simp le! Neither I, the grantor, nor the said Clarissa B. Ab- bott, the grantee, shall convey the above premises while we both live without our mutual consent. If I, the grantor, shall abandon or desert my said wife then she shall have the sole use and income and control of said premises during her life. "To have and to hold the aforegranted and bargained premises, with all the privileges and appurtenances thereof to the said Clarissa B, if she shall survive me, her heirs and assigns, to their use and behoof forever. A nd I do covenant with the said Clarissa B. her heirs and as- s igns, that I am lawfully seized in fee nf \\\e p re mises ; that they are free of all incumbra nces ; that I have good right to sell and convey the same to the said Clarissa B.if she shall outlive me, to hold as aforesaid at my decease. A.nd that I and my heirs shall and will warrant and d efend the same to the said Clarissa B. if she shall survive me. and h er h eirs and assigns forever, against the lawful claims and demands of ^ persons . "In witness whereof, I, the said James Abbott, have hereunto set my hand and seal, this tliirtieth day of April in the year of our Lord one thousand eight hundred and seventy- two. "James Abbott. [Seal] " Si?"ned . sealed, and d elivered in presen ce of "N. M. Whitmore. "L. Clay." Djily acknowledged a^ d _recorded^ Barrows, J. The plaintiff's right to maintain this action must de- pend ultimately upon the construction to be given to the deed or instru- ment under which she claims title, and upon the force and effect of the terms used therein to define the interest which she acquired by virtue thereof. Our statutes (R. S. c. '73, § 1) prnvi'f^p tViai- "a person owniii p ^ re al -estate and having a right of entry into it, whether seized of it or not, 270 DERIVATIVE TITLES (Part 2 . may rn ]-|Yry ?<•, nrall Viig interest in it, by a deed to be acknowledg ed [ and recorded as hereinaiter proviaed." JJetailed regulations as to the mode of execution and as to the torce and effect of conveyances thus made and recorded, follow this general provision in some thirty sec- tions, more, or less. C an it be doubted that under such statutes th e o wner of real estate can convev in the manner prescribed, such pp^^" o^ portion of his esta te as he and his grantee may a^ree. subject only to t hose restrictions which the law imposes as required by public policy, bm relieved from the technical doctrines which arose out of ancient feudal tenures, and all the restrictive effect which they had upon alien- ations. Why prevent the owner in fee simple from agreeing withhis. g rantee (and setting forth that ag reement in his conveyance) as to the t une when, and the conditions upon which, th e mstrume nt shall be o p- e rative to transfer the estate from, oneJLQ-ll 'ip~ntlipr ? In substance our law now says to a party having such an interest in. real estate as is mentioned in R. S. c. IZ, you may convey that interest or any part thereof in the manner herein prescribed with such limita- tions as you see fit, pr ovided you v iolate no ru le of public po licy, and pl a^e what you do on record so that aTTmay see how the owners hip ^ands. ~ In the discussion of the effect of the statute of uses and of our own statutes regulating conveyances of real estate in Wyman v. Brown, 50 Me. 139, (a leading case upon the validity of conveyances under which the grantee's right of possession was to accrue not upon delivery of the deed but at some future day,) Walton, J., remarks : 'fWe_am_al_so~| o f opinion that efl'ect may be given to such deeds by for ce of our own \ st atutes, independently of the statute of uses. Our d eeds" are not tram"- ed to convey a use merely, relying upon the statute to annex the legal title to the use. They purport to convey the land itself, and being duly acknowledged and recorded, as our statutes require, operate more like feoffments than like conveyances under the statute of uses." In this connection he quotes Oliver's Conveyancing, touching the operation and properties of our c ommon war ranty deed to the effect that in the trans- fer authorized by the statuteTiTthis mode, "th e land itself is conv eyed a s^in a feoffment except that livery of seizin is dispensed with up on c omplyingu aLtlLlh g requisitiori s _nf the statute, acknowle dgin g anH r p- • cording, sub stituted instead of it." ■' ''^ ^ - — 1 And he concludes that deeds executed in accordance with the provi- 1 sions of our statutes and deriving their validity therefrom may be up- held thereby, as well as under the statute of uses, notwithstanding th ev p urport to convev freeholds to commence at a future_ day. ^ In other words the mere technicalities of ancient law are dispen sed w ith upon compliance w ith statute requirements._ Theacknowledg- , f ment and recording are accepted in place of livery of seizin. and~ insl ) c ompetent to fix such time in the future a s the parties may agree u pon \ I as the^ime when the estate of the grantee shall commence . No more \ V. necessity for Hmiting one estate upon another, or for having an estatej (_ Ch. 1) MODE OF CONVEYANCE 271 ^'' (of some sort) pass immediately to the grantee in opposition to the ex- ^ pressed intention of the parties. T he fe offment is to be r egarded as taking place, and the livery of se izin as occur ring at the tmie hxed in tlie instrument, ^nd ^he ac - k nowledgmentand recording are to be considered as giving the neces - s ary publicity which vyas sought- in the ancient ceremonv. The ques- tions, did anything pass by the conveyance, if so, what, and when, are to be determined by a fair construction of the language used, without reference to obsolete technicalities. The instrument will be upheld ac - fWjuJ^ *^ c ording to its terms, if those terms are definite and intelligible, and no t^i ^A-iKj^y^ i n contravention of the requirements of sound public policy . -^ ^^^ The defendant, while he does not controvert the doctrine of Wyman V. Brown, insists that nothing passed by the deed of James Abbott to his wife, because according to its terms it was le ft uncerta in whether the instrument would ever take effect as a conveyance, that not even a contingent remainder which the plaintiff claims, passed when the deed was made and delivered, t hat it amounts at most, to a mere executo ry a greement, and any recognition of its validity is contrary to public policy, because it is an attempt to evade the statutes regulating the mak- ing and execution of wills, i But the instrument was duly execut ed by the defendant's testator, a man capable of contracting, and having an absolute power of disposition over his homestead farm, subject only to the rights of his existing creditors. It was duly reco rded so that all the world might know what disposition he had made of a certain interest in «. it, and what was left in himself. If operative at all, it operated differ - //#t the wife by th i qualify those gifts as he pleases, so far as the nature and extent of /U^vf^ft*^. , them are concerned. ! ^blic policy in this country has been supposed .^ '^^^ ' ra ther to favor the facilitation of transt'ers ot titl e, and tne alienatio n . o f _gstates. and the exercise of the m ost ample power over property by *^^*^^ ^^''^^ i ts owner that is consistent with goo3^ faith and fair dealing. The CUh/x^ '%^ selfish principle may fairly be supposed to be, in all but exceptional SuJUjJt^ cases, strong enough to prevent too lavish a distribution of a man's . ^Jj/j property by way of gift. ^^** \ ^^ The learned counsel for defendant speaks of this instrument as "an attempt to make an executory devise," "a mode of devising real estate." ^^^^^^ It is something more and different, and if the doctrine of Wyman v. _ / Brown is to be maintained,' i t gives to the grantee a contingent right i n >-*t^-«>M''****'^ t he property which (unlike the interest of a devisee in the lifetime^ f t he testator) cannot be taken from her, and may, upon the performance o f the condition make her the owner of the premises in fee simple, a c- c ording to its terms. It is argued that if the court give ettect to ttiis -mode of transmitting a title to real estate, it will lead to uncertainty as 272 DERIVATIVE TITLES (Part 2 to the rights of the respective parties, and to litigation between the heirs of the grantor and grantee, that "it would tie up estates, embar- rass titles, and impair the simplicity of our modes of conveyance," without producing any compensatory benefit. Why these results should follow (when the validity and effect of such conveyances has once been determined) in any greater measure than they are liable to follow any kind of family settlement is not apparent. What we do is precisely this. We uphold a conveyance in conformity with th e agreement of the parties t herem expressed, that the tit le of the p ^rante e s hall accrue, not upon the delivery of the deed, but upon the happeni ng- of a certain event ( the proof of which is commonly easy) at a future time specified in the recorded conveyance. W liy should harm com e of "^ i t any more than from a lease made to run from a future day certa in ? In substance the grantor says to the grantee, I give you this convey- ance made and executed in the manner prescribed by our statute, so- that you may have a n irrevocable assuranc e that if you outlive me the property therein described shall be yours iQ_fee_simeki_from and after my decease, in like manner as if you took the same by livery of seizin on that day, under a feoffment from me, the statute provisions for a recorded deed dispensing with that ceremon v- Doubtless this is all contrary to the ancient doctrine, which is thus stated in Greenleaf's Cruise, vol. IV, p. *48: "A feoffment cannot be made to commence in f uturo, so that if a person makes a feoffment to commence on a fu- ture day, and delivers seizin immediately, the livery is void, and noth- ing more than an estate at will passes to the feoffee," What was the foundation of this doctrine? It is stated ibidem thus: "This doctrine is founded on two grounds; first, because the object and design of livery of seizin would fail if it were allowed to pass an estate which was to commence in futuro; as it would, in that case, be no evidence of the change of possession ; secondly, the freehold would be in abey- ance which is never allowed when it can be avoided." But, given t he s vg;tem of re'cord^d conveyances for which our statutes provide, th e c eremony of livery o f seizin becomes of no importance as an eviden ce or the change of possessio n ; and we shall find our natural horror of a freehold in abeyance (if It could be demonstrated that such a result would follow from allowing a freehold to take eft'ect in futuro) greatly mitigated by the circ u_nistance that here and now it is no longer n ec- essarv "that the superior lord should know on whom to call for th e military services due for the feud," and so, in any event, the defence of File commonwealth will not be weakened; and by the further circum- stance that "e very stranger who claims a right to anv particular land s. may know against whom he ought to bring his praecipe for the rec ov- ery of them.'Lbj a simple inspection of the public records, and proof of actual possession . The doctrine of Wyman v. Brown is a good illustration both of the maxim, cessante ratione, cessat etiam lex, and of the changes wrought. in the common law by statutory provisions. Ch. 1) MODE OP CONVEYANCE 275 T he Virginia doctrine that a feoffment cannot be made to commen ce i n futuro was long ago done away with by statute .. Tate's Dig. p. 175. While it does not form part of the decision in Wyman v. Brown, this matter underwent a careful scrutiny, and, upon full consideration, the court agreed that our statute system of registered conveyances brought about the same result here. We are at liberty, then, to give to the language used by the granto r i n a deed, its obvious meaning, without invalidating the deed, t o say t liat it shall operate as the parties inten ded, and carry an estate to com- mence in fiitnrn if t he y fio agree? without the necessity of resorting~t o any subterfuges under which the est ate thus created to commence in f uturo may b e recognized as existmy only by way of remainder or b.y v irtue of some imputed covenant to stand seiz ed. A single reading of this conveyance of James Abbott to his wife is sufficient to satisfy one that it was no part of the intention or expecta- tion of either, that the wife acquired thereby any interest in the home- stead farm during the life of the grantor except as expressly therein declared, to wit, a right to t he "use, income and control nf said premi se'; during her li f e," in case the husband deserted her (which he did not do) , and besides this, an irrevocable right to the same in fee simple, in case s he survived h er husband, her estate to commence at his deceas e. The language of the deed differs widely from that of any of the con- veyances which have been sustained as passing an estate in remainder to the grantee with a life-estate in the grantor reserved. If the object of the draftsman had been to exclude the idea that the conveyance should have any force until the time therein appointed, in other words, to have it take effect as a feoffment made at the time fixed in futuro, to convey, as of that date, an estate in fee simple and to have no other operation, it is difficult to see how he could have made that object plainer in words. "This deed is not to take effect and operate as a conveyance until my decease, and, in case I shall survive my said wife, this deed is not to be operative as a conveyance. * * * jf she shall survive me, then, and in that event only, this deed shall be operative to convey to my said wife said premises in fee simple." Note also the language of the habendum and covenants. A convevance thus fra.med cannot g ive, the rights of a remainderman presently to the grantee, nor so o p- erate for thwith, as a conveyance as to convert tlie holdinp^ of the gr an - t QT from tiiat time forward into a mere tenancy for life^ Such language bears little resemblance to the stipulation in the deed which was under consideration in Drown v. Smith, 52 Me. 142, "but the said (grantee) is not to have or take possession till after my de- cease; and I do reserve full power and control over said farm during my natural life." It differs quite as much from the provision in the case of Wyman v. Brown, to the effect that Mrs. Brown was "to have quiet possession^ Aig.Pbop. — 18 274 DERIVATIVE TITLES (Part 2 and the entire income of the premises until her decease." Drown v. Smith, however, is an authority which reheve's us on the question whether stipulations which on the face of them are not consistent with terms previously used importing a present conveyance, will avoid the deed. There is an apparent contradiction in saying, I convey this prop- erty to you, but this is no conveyance until, &c., nor unless, &c. j3ut t he modern cases like Drown v. Smith, indicate that if the intent, t ak- ing th e whole together, is clear and intelligible, the court will give eft egt -^■^ t o It notwithst a nding some apparent repugnan cv. If a deed can be upheld where, as in Drown v. Smidi, the grantor reserves to himself "full power and control over said farm during my (his) natural life," on the face of it including the power of disposition, we may give its fair and just effect to one framed, as this is, to convey an estate in fee simple to the grantee, to commence at the decease of the grantor, pro- vided the grantee outlives him ; and tlie true effect seems to be that of a feoffment under which the execution and record of the deed operate in the same manner as livery of seizin made at the time of the gran- tor's decease. \ I t gives no right of action for waste com^mitted dur ing ( he grantor's life. While this grantor lived he could d o an ything with k he homestead farm not inconsistent with the right which he had co n- veyed to his wife to take it from the ti me of his decease, if she survived mm. as the owner the n ce forward m tee simpl e. If the testimony of Lapham and Palmer represents truly the acts of which the plaintiff complains as waste, her suit, were it otherwise w ell f ounded^ would fail for want of proof of anything which amounts __to waste according to the best considered decisions in this country . See Drown v. Smith, ubi supra, and cases there cited. PlaintiffjionsiiitJJ' 72 See Miller v. Miller, 91 Kan. 1, 136 Pac. 953, L. R. A. 1915A, 671 (1913). yt^^ A^tyClyt^Pi^ AA.^Jte/0 Ch. 2) EXECUTION OF DEEDS 275 CHAPTER II EXECUTION OF DEEDS SECTION 1.— SIGNING At common law s igning- was not essential to a ^ood deed . Black- stone seems to have been of the opinion that the Statute of Frauds made signing necessary. 2 Bl. Comm. 306. The general and better view, however, has been that the Statute of Frauds did not, in its re- quirement of a signature, include instruments under seal. Avetine v. Whisson, 4 M. & G. 801 ; Taunton v. Pepler, 6 Madd. 166. See also Cooch V. Goodman, 2 Q. B. 580, 596; Cherry v. Henning, 4 Ex. 631. The stat utes of the various states in this country quite uniformly r e- q uire_that a deed effective as a conveyance shall be signed by the co n- v ev'ing party or his agen t. The state statutes should be consulted on this point. SECTION 2.— SEALING JACKSON ex dem. GOUCH v. WOOD. (Supreme Court of New York, 1S15. 12 Johns. 73.) This was an a ction of ejectment for lot No. 7, in the town of Locke, in the county of Onondaga, and was tried before Mr. Justice Thomp- son, at the Cayuga circuit, in June, 1813. The lessors of the plaintiff gave in evidence the exemplification of a patent, dated the 13th of June, 1791, to John Day, for the lot in ques- tion. He then proved that Moses Couch was the identical person who served, and was known in the New York line of the army by the name of John Day, and that he was the same person to whom the patent was granted by that name. It was also proved, that Moses Gouch, alias dictus John Day, was dead, and that the lessors of the plaintiff were his heirs at law. The defendant gave in evidence an instrument in writing, endorsed on the original patent, dated the 19th of November, 1792, signed his "John X Day," but without any seal, by which he, John Day, for the mark "^ ' consideration of ten pounds, paid to him by Benjamin Prescott, bar- gained, sold, remised, released and quit-claimed to the said Benjamin 276 DERIVATIVE TITLES (Part 2 Prescott, his heirs and assigns, all his right, title, claim, and interest, of, in, and to, the premises granted and described in the patent, to have and to hpld the same to the said Benjamin Prescott, and to his heirs and assigns, to his and tlieir only proper use and benefit forever ; and to this instrument the names of two witnesses were subscribed. There never having been any seal to the writing thus endorsed on the patent, it was objected, on the part of the plaintiff, that it amount- ed to no more than a parol contract, and was not sufficient to pass the land. This point was reserved by the judge, and the defendant gave in evidence sundry mesne conveyances from Benjamin Prescott to him- self, all of which had been duly recorded : he also showed a possession . for seven or eight years. A verdict was taken for the plaintiff, sub- ject to the opinion of the Court, on a case, as above stated. Platt, J., delivered the opinion of tlie Court. The single question in this case is, whether an estate in fee can be '^ conveyed otherwise than by deed; that is^to say, whether a seal js^ essential to such conveyance. The earliest mode of transferring a freehold estate, known in the English common law, was by livery of seisin only. Co. Litt. 49, b, 48, b. But when the art of writing became common among our rude ancestors, the deed of feoffment was introduced, in order to ascertain with more precision the nature and extent of the estate granted, with the various conditions and limitations. This deed, however, was of no validity, unless accompanied by the old ceremony of livery and seisin. 2 Black. Com. 318. The statute of uses (27 Hen. VIII) gave rise to the deed of bargain and sale; and, soon afterwards, the conveyance by lease and release was introduced, in order to avoid the necessity of enrolment, required by the statute of 27 Hen. VIII, (2 Black. Com. 343.) By virtue of the statute of uses, which we have adopted, (without the proviso in the English statute requiring the enrolment of deeds,) the deed of bargain and sale, now in use here, is equivalent to the deed of feoffment with livery of seisin, (2 Black. Com. 339, 343,) and has, in practice, super- seded the lease and release. By the common law, estates less than a freehold might be created ■or assigned, either by deed, by writing without seal, or by parol merely. By the 29 Car. II, c. 3. (9th and 10th sections of our "act for the prevention of frauds,") it was enacted, "that all leases, estates, interest of freehold, or terms of years, or any uncertain interests in lands, &c., made or executed by livery and seisin only, or by parol, and not in writing, and signed by the parties so making and creating the same, shall have the force and effect of leases or estates at will only ; except- ing leases for three years and less," &c. ; and, "that no leases, estates, or interests, either of freehold, or terms of years," &c. "in any lands," &c. "shall, at any time hereafter, 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," &c. Ch. 2) EXECUTION OF DEEDS 277 Now, it is contended on the part of the defendant, that the common law mode of conveyancing has been so modified by this statute, as to destroy the distinction between an estate of freehold, and an estate less than a freehold, as it regards the mode of alienation ; and that either may now be conveyed by "note in writing" without seal, as well as by deed. No direct decision appears to have been made on this point; but in the case of Fry v. Philips, 5 Burr. 2827, and in the case of HoUiday v. Marshall, 7 Johns. 211, it was decided, that a written assignment of a lease for ninety-nine years was valid, though not sealed ; upon the ex- press ground that it was the sale of a chattel-real, for which the statute of frauds requires only a "note in writing" ; plainly recognizing the distinction between a term for years, and a freehold estate, as to the mode of conveyance. .^ According to Sir William Blackstone, (2 Black. Com. 309, &c.,)lsealf ing was not in general use among our Saxon ancestors. Their custom was, for such as could write, to sign their names, and to affix the sign of the cross; and those who could not write, made their mark in sign of the cross, as is still continued to this day. The Normans used the practice of sealing only, without writing their names ; and, at the con- quest, they introduced into England waxen seals, instead of the former English mode of writing their names and affixing the sign of the cross, ^ it being then usual for every freeman to have his distinct and particu- lar seal. The neglect of signing, and resting upon the authenticity of seals alone, continued for several ages, during which time it was held, bj; all the English Courts, that seali ng alone was sufficient But in the process of time, the practice of using particular and appropriate seals, was, in a great measure, disused ; and Sir William Blackstone, (2 Black. Com. 310,) seems to consider the statute of 29 Car. II, c. 3, (of which the 9th and 10th sections of our statute of frauds are a copy,) as reviving the ancient Saxon custom of signing, without dis- pensing with the seal as then in use, under the custom derived from the Normans. We have the authori^ of that learned commentator, unequivocally in favor of the opinion J that a seal is indispensable, in order to convey an estate i n fee simple, lee tail, or for life. 2 Black. Com. 297, 312. Such seems to have been the practical construction, ever since the statute of Car. II in England, and under our statute of frauds in this state ; and to decide now, that a seal is unnecessary to pass a fee, would be to introduce a new rule of conveyancing, contrary to the received opinion, and almost universal practice in our community, and danger- ous in its retrospective operation. Construing this statute with refer- ence to the pre-existing common law, and the particular evil intended to be remedied, Ijhink th e leg islature did not intend to dispense with a seal, where it was before required, as in a conveyance of a freehold estate; but the oSject" was to require such deeds to be signed also, which the Cpurts had decided to be unnecessary. 278 DERIVATIVE TITLES (Part 2 I construe this statute as though the form of expression had been thus: "No estate of freehold shall be granted, unless it be by deed signed by the party granting ; and no estate less than a freehold (ex- cepting leases for tliree years, &c.) shall be granted or surrendered, unless by deed, or note in writing signed by the grantor." This venerable custom of sealing, is a relic of ancient wisdom, and is not without its real use at this day. There is yet some degree of solemnity in this form of conveyance. A seal attracts attention, and. excites caution in illiterate persons, and thereby operates as a security_ against fraud. If a man's freehold might be conveyed by a mere note in writing, he might more easily be imposed on, by procuring his signature to such a conveyance, when he really supposed he was signing a receipt, a promissory note, or a mere letter. The plaintiff is entitled to judgment. Judgment for the plaintiff.^ r . Quite generally the necessity for a seal as requisite to the validity of conveyances has been done away with by statute. As to this the statutes of the various states should be consulted. See also Stimson, Am. St. Law, §§ 1564, 1565. These statutes vary in form and are found under various heads, as a result of which there has been not a little uncertainty and confusion. See, for instance, Jones v. Morris, 61 Ala. 518; Rondot v. Rogers Tp., 99 Fed. 202, 39 C. C. A. 462; Jerome v. Ortman, 66 Mich. 668, 33 N. W. 759. As to what amounts to a sufficient sealing see Lightfoot and Butler's Case, 2 Leon. 21; The Queen v. St. Paul, Covent Garden, 7 Q. B. 232 ; National Provincial Bank v. Jackson, ZZ Ch. D. 1 ; Warren v. Lynch, 5 Johns. 239; Pillow v. Roberts, 13 How. 472, 14 L. Ed. 228; Bates v. Railroad Co., 10 Allen, (Mass.) 251 ; Pease v. Lawson, ZZ Mo. 35; Barnard v. Gantz, 140 N. Y. 249, 35 N. E. 430; Lorah v. Nissley, 156 Pa. 329, 27 Atl. 242.^ 1 See Warren v. T.ynch, 5 Johns. (N. Y.) 239 (ISIO), as to the origin, nature, and use of seals. — Rep. 2 "The ground of this controversy lies in the fact that the deed to Edwards purports to be the deed of Agillon Price, only. The name of Lucy A. Price does not appear in the body of it, nor is there anything in the body of the deed to show that he was a married man. It concludes, 'In testimony where- of I have hereunto set my hand and seal,' et'c. The deed, however, is signed by her and her husband, and acknowledged by her on the twenty-second of July. 185.'}, and by him on the fourteenth of September, 1853. Tlie wife, as will be seen, owned the property in her own right, and the fact that she signed her name to the deed, and acknowledged it before a proper officer, does not make it her gi*ant. The party in whom the title is vested must use appropriate words to convey the estate. Signing, sealing, and acknowl- edging a deed by the wife, in which her husband is the only grantor, vvill_ not convey her estate, Whiteley v. Stewart, 63 Rfo. 3G0 dSTB) ; Agricultural" Bank v. Rice, 4 How. 225, 11 L. Ed. 049 (1840) ; City of Cincinnati v. New^-ll's Heirs' Lessee, 7 Ohio St. 37 (1857). Whether it would be sufhcient to release her dower in her husband's estate, we do not determine." Bradley v. Mis- souri Pac. Ry. Co., 91 Mo. 493, 4 S. W. 427 (1886), per Black, J. Ch. 2) EXECUTION OF DEEDS 279 SECTION 3.— ATTESTATION At common law attestation by witnesses was not necessary for any purpose in connection with deeds. In the United States not uncom- monly the statutes require attestation for some purpose. In Ohio and Connecticut attestation by two witnesses is necessary to make the deed valid as a conveyance, even as between the parties. Langmede v. Weaver, 65 Ohio'St. 17, 60 N. E. 992; Winsted Bank v. Spencer, 26 Conn. 195. Generally, however, where attestation is called for by the statute it is considered necessary only as a prerequisite to effective recordinoj. SECTION 4.— ACKNOWLEDGMENT This, too, is wholl y a requirement o f statute, and generally speaking, as in the case of altestation, is not essential to the validity of the con- veyance. In Ohio and Arizona, however, it has been held essential to the validity of the conveyance. Hout v. Hout, 20 Ohio St. 1 19; Lewis v. Herrera, 10 Ariz. 74, 85 Pac. 245, aff. 208 U. S. 309, 28 Sup. Ct. 412, 52 L. Ed. 506. Quite commonly acknowledgment is made neces- sary to the validity of conveyances of certain special interests, as home- steads, or conveyances by certain persons, as married women. Aside from these the requirement goes merely to the effectiveness of the recording or to the matter of proof in offering the instrument in evi- dence. On this and upon the matter of Attestation as well the statutes and decisions thereunder should be consulted. SECTION 5.— DELIVERY STANTON V. CHAMBERLAIN. (Court of Common Pleas, 1588. Owen, 95.) In an action of debt upon a bond, upon non est factum pleaded, the jury found, that tlie defendant sealed the bond, and cast it on the table, and th^_plaintiff came and took up the bond, and carried it away with- out saying any thing; and if this shall amount to a delivery by the defendant to the plaintiff, was the question. And it was resolved by all the justices, that if the jury had found that he had sealed tlie bond, 280 DERIVATIVE TITLES (Part 2" and cast it on the table towards the plaintiff, to the intent that the plain-_ tiff should take it as his deed, who took the^ond and went away, that- had been a good delivery; or that the plaintiff, after the sealing and casting on the table, had taken it by the commandment or consent of the defendant; but because it is found that the defendant only sealed it, and cast it on the table, and the plaintiff took it and went away with it, this is not a sufficient delivery, for it may be that he sealed it to the intent to reserve it to himself until other things were agreed, and then if the plaintiff take it, and go away with it without the defendant's con- sent, that will not make it the defendant's deed. But it was said, that it might be accounted to be the defendant's deed, because it is found that he sealed it, and cast it on the table, and tlie plaintiff took it, &c. and it is not found that the defendant said any thing, and therefore be- cause he did not say any thing, it will amount to his consent, Nam qui tacet consentire videtur. But to this it was answered, that it is not found that the defendant was present when the plaintiff took it, and if the defendant had sealed, and cast the bond on the table when the plaintiff was not there, and then the defendant went away, and then the plaintiff came and took it away, then clearly it is not the deed of the__ defendant.* BOYD V. SLAYBACK. (Supreme Court of California, 18S3. 63 Cal. 493.) 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 certain lands alleged '^ * J ^^ have been sold to the plaintiff by Mary B. Taggart. The plaintiff alleged that some time subsequent to the execution and deliveny of the deeds to him, by which the lands were conveyed, 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: ff .- , Pkr Curiam.* * * * f j^g judgment must be reversed for er- ror in the charge to the jury. The court below charged: "A grant, I Q ^ I duly executed, is presumed to have been delivered ; therefore, if you find from the evidence that Mrs. Taggart actually signed and acknowl- edged the deeds in question, the law will presume that they were duly delivered, and in order to defeat this presumption, the party disputing the delivery must show, by preponderance of proof, that there was no delivery." 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 with- 8 See Hughes v. Easten, 4 J. J. Marsh. (Ky.) 572, 20 Am. Dec. 230 (1S30) j. Cannon v. Cannon, 26 N. J. Eq. 316 (1875). * Only a portion of the opinion is printed. Ch. 2) EXECUTION OF DEEDS 281 out delivery. Dyson v. Bradshaw, 23 Cal. 528; Fitch v. Bunch, 30 Cal. 208; Barr v. Scliroeder, 32 Cal. 610. It i s for the party claiming, iinde£a deed .tQ_£rove its delivery. Sometimes slight evidence will be sufficient to support a finding of delivery, but no legal presu mption j)f delivery ajrises . f rprn the mere fact that the instru ment is "s igned.". The acknowledgment only proves that it was signed. Judgment reversed and cause remanded for a new trial. ^ ^ J^ . CURRY V. COLBURN. (Supreme Court of Wisconsin, 1898. 99 Wis. 319, 74 N. W. 778, 67 Am. St. Rep. 860.) Bardeen, J. The plaintiff brings this actio n in ejectmen t to recover possession of a tract of land in the city of Marinette. The answer is a general denial, and a counterclaim substantially to the elYect that both parties claim title from one Fairchild, and that the dee d under which plaintiff claims title was never in fact delivered to him with i ntent to pass titI e.~~A reply asserts the validity of plaintiff's deed, and that defendants took title with notice of the plaintiff's rights. The chief g^uestion litigated on the trial was whether the deed from Fair- Y^'^ child to plaintiff had ever been delivered. The court found that such deed was handed by Fairchild to plaintiff merel y for examinationand insp ection, and \v as_not,ddiyered with the intention of passing thetitle. As conclusions of law, the court found that defendants were entitled t° Jil^&ni?IlL^ismissin^_the_ complaint and canceling said deed. There is ample evidence to support the conclusions arrived at by the trial judge, and his findings of fact cannot be disturbed. The deed in question was not dated or acknowledged. It was simply handed to plaintiff by Fairchild, at the former's request, to be taken to his law- yer for examination, and the parties were to meet later to complete the bargain. No particular fo rm is necessar y to cons titute_th e del iv- ery of the deed. , It is sufficient when the deed is executed, and the minds of the parties to it meet, expressly or tacitly, in the purpose to give it present eft'ect. Bogie v. Bogie, 35 Wis. 659. Like every other contr act, there must b e_a_meetini;_of the minds of the contracting par- ties — the one to sell and convey, and the other to purchase and receive — before the agreement is consummated. Welch v. Sackett, 12 Wis. yU 243. The question of d elivery is largejyoHntention 1 Devlin, Deeds, § 262. And a deed never becomes operative until it is delivered with the intent that it shall become effective as a conveyance. Id. Counsel for the plaintiff argue earnestly that, because the deed was handed by Fairchild to the plaintiff, this constituted a full and complete delivery, and that evidence was not admissible to show the actual condition then existing. No doubt, a great deal of discussion and unnecessary refinement may be found in the books, bearing upon this question ; but the main princip le must predominate, that, to constitute a valid de- 282 DERIVATIVE TITLES (Part 2 Hvery of a deed, the grantor must part with his dominion overJt, with_ intent_Jo pass _ the title. The ancient rule that a deed cannot be delivered in escrow to the grantee in no way conflicts with our conclusions. A delivery in escrow contemplates complete loss of control over the deed. Here the in- complete deed was haiided to the grantee, to take to his lawyer for in- spection. By the terms of their agreement of sale, a mortgage was to be made, a party-wall contract was to be executed, and part of the consideration to be paid. There was nothing in the circumstances to show that Fairchild in any way intended to part with his dominion over the deed. On the contrary, they all tend to establish the conclu- sion arrived at by the trial court. That parol evidence is admissible Jo show that a written instrument has never been delivered so as_to bind the parties thereto is established by the following cases : Gibbons V. Ellis, 83 Wis. 434, 53 N. W. 701 ; Price v. Hudson^ 125 111. 284, 17 N. E. 817; Brackett v. Barney, 28 N. Y. 333; Jackson v. Roberts, 1 Wend. (N. Y.) 478; Reichart v. Wilhelm, 83 Iowa, 510, 50 N. W. 19. In Price v. Hudson the court remark : "It is not competent to control the effect of the deed by parol evidence, when it has once taken effect 7^ by delivery, but it is always competent to show that the deed, although in the grantee's hands, has never in fact been delivered, unless the grantor, or those claiming through him, are estopped in some way from assertmg the nondelivery of the deed." Not to prolong this discussion, we conclude that the decision of the trial judge upon the law finds ample support both upon principle and authority. By the: Court. The judgment of the circuit court is affirmed.^ s " The mies tiyn of r lelivery is a mixed question of la^ and fa ct, and it is held tuaniie delivery oi"a flPM may be uiiifle by acts alone, th'ai: is, by do- in^ soiiietbiiig and saying nothing; or by words alone, that is, by saying something and doing nothing; or it may be delivered by both acts and words. It must, however, be delivered by something answering to the one or the other, or both, and with the intent thereby to give effect fo the deed. Roun- tree v. Smith, 152 111. 49.3 [38 N. E. 6S0 (1804)]. In the case at bar the deed was handed to Charles S. Owen by Mr. Lewis, and after it had been signed and acknowledged by Mrs. Owen was placed by Owen in his private bo.x^, where it remained until after his death. If these were the only facts which appeared iu evidence bearing upon the question of delivery, it might well be held that the deed had been delivered. It appears, however, that the deed was made, not with the intention that it should immediately take effect and pass the title to said farm to Charles S. Owen, but that it should only take efteet in case Chartes S. Owen survived his wife, and in the event that his wife should survive him it was never to take efiect but was to be destroyed. A deed must take effect immediately upon its e.xec ution and delivery to tEe gntntee Ar It VVlll.no! tAke'eiierT ai all. U lisoll V. Wilson, fshl'lll. 5^ 'Hi N. E. lOUT. 49 Am. St. Itep. i'td (l^\ib)\ ; Wilenou v. Handlon, 207 111. 104 [e9 N. E. 892 (1904)]. We think it clear that the parties to this deed intend- ed it to oiterate as a will, and that the possession of the deed by Charles S. Owen did not have the effect to vest the title to said farm in liim. It is urged, however, that the deed was delivered into the hands of Charles S. Owpn, and it is said such delivery had the effect to invest him with the title to the premises regardless of the intention of the parties, on the ground that a deed cannot be transferred fi'om the possession of the grantor to the gran- Ch. 2) EXECUTION OF DEEDS 283 TISHER V. BECKWITH. (Supreme Court of Wisconsin, 1872. 30 Wis. 55, 11 Am. Rep. 546.) Appeal from the Circuit Court of Waupaca County. Action against defendants, together with the sheriff and former sheriff of Waupaca county, to restrain said officers from executing a_deed_gfj:ertain mortgaged premises sold under a judgment of fore- closure to_the defendants, and to compel the defendants to convey to respondent theii^ title acquired under such sale. It appeared in evidence that the plaintiff, Tisher, who was in pos- session of the premises in dispute as a homestead under a patent from the United States, liad partially execut ed bu t never delivered a deed of the premises to his s on Charles H. Tisher. Tliis deed, which was unstamped and bore no consideration or date, was placed by Tisher in a trunk and locked up, the key being kept by his wife in a small box in another trunk which was locked. The son kept his papers in the same trunk in which the deed was placed, but had no key. De- fendants claimed the premises under a sale by virtue of a judgment of foreclosure of certain mortgages executed by the said Charles H. Tisher. The court found as facts that the pretended deed of Tisher to his son was never fully executed and delivered, but that it was purloined from Tisher without his knowledge or consent, and that the defendants had due notice of the plaintiff's claim to the premises, as tee without vesting title In tlie grantee. We do not so understand the law. While a deed tiiunot be delivered to the granree in escrow, nunieruus cases have been decided by this court where deeds have been held nut to have been delivered so as to pass title although the possession of the deed passed froui the grantor to the grantee. In Rountree v. Snnth, supra, the deed was delivered by the grantor to the grantee and recorded with the kr)()\vl- edge and consent of the grantor, and yet it was held that It was not deliv- ered to the grantee so as to vest her with the title to the premises des'-rilied in the deed. See, also, Bovee v. Hinde, 135 111. 137 [25 N. E. C94 (1890)] ; Hayes V. r.o.vlan, 141 111. 400 \:W N. K. 1041, :« Am. St. Re].. :',2G (IM).!)!; Oliver V. Oliver, 140 III. 542 [.% N. E. 935 (1894)1; Wilson v. Wilson, supra; Hollen- beck v. Hollenbeck, 185 111. 101 [57 N. E. 30 (1900)). In the Wilson Case the deed was placed in the hands of one of the grantees with the under- standing if the grantor did not call for it it was to be placed of record after his death. The court, on page 574 [of 158 111., on page 1008 of 41 N. E.I, said : 'T he mere placing of the deed in the hands of one of the grante es did not, of itself, necessarily constitute a delivery . In such a case t lie ni- quiry is, what was the intention of the parties at the time? and that inten- tion, when asceitained, must govern.' And In Oliver v. Oliver, supra, on page 547 [of 149 111., on page 956 of 36 N. E.], it was said: 'The fact that a grantee in a deed may, after the execution of the instrument, take it into his hands does not, of itself, establish a delivery.' And in Hollenbeck v. Hollenbeck, supra, on page 103 [of 185 111., on page 37 of 57 N. E.]: 'The D jere iilacini': of a deed -in the hands of the grantee does nut conclusively e s- t ablish a delivery thereof, within the legal meainng or tuat word . Deliver y is'ji (luestiun oi' intent, and dcpeiMis upon whether the parties'at the tjin e meant it to he a delivery to t ;'K-e ^'itert- at onc e.' '^ Elliott v. Murray. 225 III. fO'i, 8(rX'. E. ?t (1907), per Hand, J. iiee, also, Kavauaugh v. Kavanaugh, 260 111. 179, 103 N. E. 65 (1013); Elliott v. Merchants' Bank & Trust Co., 21 Cal. App. 536, 132 Pac. 280 (1913). 284 • DERIVATIVE TITLES (Part 2 well as his son's inability to convey. As a conclusion of law the court found that Tisher was the owner in fee of the premises; that the pretended deed to his son was null and void; that the mortgages executed by the son were null and void, as well as the certificate of sale issued to defendants under the foreclosure sale ; that the sher- iffs should be enjoined from executing a deed on said certificate that the defendants should be restrained from disposing of the certificate, and that they should release to the plaintiff all claims to the premises in question by virtue of said sale and certificate. Judgment being en- tered in accordance with such findings defendants appealed, Dixon, C. J. The fourth finding of fact by the court below is in these words: "That the pretended deed from said plaintiflt and his wife to Charles H. Tisher was never fully executed and was never delivered, and that the same was purloined or stolen from said plain- tiff without his knowledge, consent or acquiescence." If this finding be correct and sustained by the evidence, it obviously puts an end to all claim of title to the land on the part of the defendants. It has beef held by this court that the fraudulent procurement of a deed depositcdl as an escrow from the depository by the grantee named therein, willl not operate to pass the title, and a subsequent purchaser of such] grantee, for valuable consideration without notice, derives no title thereby and will not be protected. Everts v. Agnes and Swift, 4 Wis. 343, 65 Am. Dec. 314; Same v. Same, 6 Wis. 453. It is ess tial to the validity of a deed that it should be delivered, and such de-j Hyery to be valid must be voluntary^ that is, made with the assent f and in pursuance of an intention on the part of the grantor to de- liver it, and if not so delivered it conveys no title. A deed pur- loined or stolen from the grantor, or the possession of which was fraudulently or wrongfully obtained from him without his knowl- edge, consent or acquiescence, is no more effectual to pass title to the supposed grantee, than if it were a total forgery, and an in- strument of the latter kind had been spread upon the record. The only question. which can ever arise to defeat the title of the sup=^ posed grantor in such cases, is whether he was guilty of any negli- _gence in having made, signed and acknowledged the instrument, and in suffering it to be kept or deposited in some place where he knew the party named as grantee might, if so disposed, readily and without trouble obtain such wrongful possession of it and so be enabled to de- ceive and defraud innocent third persons. It might possibly be that a case of that kind could be presented where the negligence of the supposed grantor in this respect was so great, and his inattention and carelessness to the rights of others so marked, that the law would on that account estop him from setting up his title as against a bona fide purchaser for value under such deed. See Everts v. Agnes et al., 6 Wis. 453. There are some facts and circumstances in this case strongly suggestive of such a defense, and were it not for the fact found by the court that the deed_ was ne ver fully e xecuted, and the Ch. 2) EXECUTION OF DEEDS 285 further fact fully established in evidence that it was unstamped when jput aw ay by the plaintiff in the trunk in the manner described by him- self and the other witnesses, we might possibly have some hesitation about affirming the judgment of the court below on this ground. It appears from the plaintiff's own testimony that the trunk was easily accessible to his son, the person named in the instrument as gran- tee, for he says that his son, who was acting as town clerk at the time, kept his papers there, although he also testifies that the son had no key to the trunk, but that his, plaintiff's, wife kept the key in a smaU^ box in another trunk belonging to her and which was locked.] A^eed fully executed and which had been so kept or deposited would seem to furnish some evidence, more or less strong, of negligence on the part of the grantor. It would be unlike the case of a deed executed and deposited in escrow, which this court said was recognized as a- legitL:. mate business transaction. ; But the finding is that the deed was not! fully executed nor was it stamped, and the question is, whether it was \ negligence so to keep such an instrument^ and we are not prepared to I say that it was. It occurs to us, as it probably did to the court below,J that most men of ordinary care and circumspection would not have regarded this as unsafe or imprudent or careless. An instrument com- plete in all its parts and lacking nothing to give it validity but deliv- ery to the person named in it as grantee, might excite the cupidity of such person to take wrongful possession of it when frequent oppor- tunity for that purpose was afforded, but that an unfinished instrument, one partially executed and not ready for delivery, would present the same temptation would hardly suggest itself to the mind of any ordi- narily prudent and cautious man. It would hardly occur to such a man that such an instrument would be purloined or wrongfully taken, when * to give it any apparent validity in the hands of the supposed grantee the crime of forgery^rnust also be committed. It is for these reasons that this court is of opinion that the facts proved were not sufficient to take the case out of the general rule of law above stated, even taking the most liberal view of the facts in favor of the defendants. There are cases, however, the tendency of which would seem to be that the failure of the plaintiff to suspect and treat his son as a knave, thief, or criminal, could not be attributed to him as negligence. See the able and well considered opinion of the court by Christiancy, J., in Burson v. Huntington, 21 Mich. 415, 4 Am. Rep. 497, a case involving the same question with respect to the de- livery of a negotiable pr omissory note and which, not having been delivered by the maker but stolen or wrongfully taken and put in cir- culation by the payee, was held void in the hands of a bona fide holder for value. The same case also makes a distinction between a note or other instrument so obtained and one deposited in escrow and afterwards fraudulently delivered by the depositors, holding that in the latter case the maker would be bound as against an innocent holder for value, on the ground of the trust or confidence reposed by him 286 DERIVATIVE TITLES (Part 2 in the depository, and upon the principle that, when one of two inno;;_ cent persons must suffer by the acts of a third, he who has enabled^ such third person to occasion the loss must sustain it. Upon the same question also of negligence, see Wait v. Pomeroy, 20 Mich. 425, 4 Am. Rep. 395. It only remains, therefore, to be inquired whether the evi- dence given on the trial was such as to sustain the finding of the court above quoted. We are of opinion that the preponderance of testimony was de- cidedly in favor of the finding. If we omit from our consideration entirely the testimony of the plaintiff, which was clear and strong and whose credibility and fairness we discover nothing to impeach, except the mere fact of his interest, the finding was fully sustained by the testimony of the witnesses, Quimby, Wooden and Mrs. Scheppe, who corroborated the plaintiff" in almost every particular to which he testi- fied. Opposed to the testimony of these witnesses was only that of the witness Hoxie, who testified merely to certain admissions and conduct of the plaintiff calculated to induce the witness to believe that the plaintiff had conveyed the land to his son. In this, Hoxie was directly contradicted by the plaintiff, and there again the plaintiff was corrobo- rated by the witness Wooden, who was present on the occasion spoken of by Hoxie. In every view in which the testimony presents itself to our minds, we are constrained to say that this finding of the court below was correct, and consequently, that the judgment must be affirmed. By THE Court. Judgment affirmed ,* PARROTT v. AVERY. (Supreme Judicial Court of Massachusetts. 1S9.3. 159 ^rass. 594, 35 N. E. 94, 22 L. R. A. 153, 38 Am. St. Rep. 465.) Writ of entry, to recover possession of a parcel of land in Great Barrington. J'lea, nul disseisin. The case was submitted to the Supe- rior Court, and, after judgment for the demandants, to this court, on appeal, upon agreed facts, in substance as follows. The tenant claimed title to the demanded premises by virtue of a deed to him of the same from his grandfather, one Miles Avery, de- ceased, dated, January 21, 1888, the consideration for which was ex- pressed to be "love and affection," which was executed in the presence of a witness, and which was recorded on January 31, 1893; and also under the second clause of the will of Miles Avery, which devised to 6 See Gamer v. Risinger, 35 Tex. Civ, App. 378, 81 S. W. 343 (1904), where the grantors prepared a deed and placed it in a drawer of the family organ, where the grautore were accu.stonied to keep tlieir valuahle papers. The grantee, a stepdaughter of one of the grantors and a member of the house- hold, took the deed without the knowledge of the grantors, and conveyed the property to an innocent purchaser. Ch. 2) EXECUTION OF DEEDS 287 the tenant, among other things, "my chest and its contents except the bank-books." The deed was duly executed by Miles Avery at or about the time of its date, and is supposed to have been placed by him with other valuable property in a certain chest owned by him, which was the chest bequeathed to the tenant by the second clause of the will. The will, which was dated May 25, 1889, was duly proved and allowed, and the executor of the will, agreeably to its provisions, delivered the chest and its contents, including the deed, which was found in the chest, to the tenant, on January 28, 1893. Miles Avery retained possession of the demanded premises, and of the chest and its contents, up to the time of his death, which oc- curred on May 10, 1891. The d emandants^ c laimed title to _the_ premises under the seventh clause o f the will, which was as follows: "All the residue and remain^ der q I my estate, both real and personal, not otherwise disposed of, shall be equally d jvj dpd amon g all of ray grandchildren then living." If the tenant had title to the demanded premises, judginent was to be entered in his favor; otherwise, judgment was to be entered for the demandants. Allen, J.f 1. The agreed facts fail to shovy a deliv;ery of the deed m t he grantor's lifetime. The grantor retained control of the deed and of the land. There was no prior bargain with the grantee, and no indebtedness to him, nor relation of trust towards him. He had no knowledge of the execution of the deed. The only consideration was love and affecti on. The deed was not recorded during the grantor's lifetime. There was no oral declaration by the grantor that he meant to have it take effect at once. In short, there was nothing tending to show a delivery of the deed except the bare fact that it was executed in the presence of a witness. Tlie_question of delivery is a question of fact, and d elivery in_the grantor's lifetime must be proved. There must have been an intention that it should operate as a present conveyance of title. A finding of the delivery of the deed would not be warranted on the agreed facts. Stevens v. Stevens, 150 Mass. 557, 23 N. E. 378; Shurtleff v. Francis, 118 Mass. 154; Hawkes v. Pike, 105 Mass. 560, 7 Am. Rep. 554; Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, 232, 6 Am. Rep. 222 ; Chase v. Breed, 5 Gray, 440 ; Younge V. Guilbeau, 3 Wall. 636, 641, 18 L. Ed. 262 ; 3 Washb. Real Prop. (5th Ed.) 577 et seq. Ther e were no acts or declarations of the grantor sufficient to show an intent to treat it as delivered, or circumstances such as were f ouncT to He sufficient in Lowd v. Brigham, 154 Mass. 108, 113, 114, 26 N. E. 1004, and cases there cited, and in Regan v. Howe, 121 Mass. 424. * * * Judgment for demandants affirmed.' t A portion of the opinion is omitted. 7 See Taylor v, Taylor (R. I.) 90 AtL 746 (1014), in wliirh the erantor, a short time before her death, called her son, the grantee, to her bedside, and 288 DERIVATIVE TITLES (Part 2 DOE ex dem. GARNONS v. KNIGHT. (Court of King's Bench, 1826. 5 Barn. & C. 671.) This was an ejectment brought to recover possession of certain mes- suages and lands in the county of Flint. The^ lessor of the plaintiff claimed the property as mortgagee under a deed purporting to be ex- ecuted by W. Wynne, deceased. At the trial before Garrow, B., at the summer assizes for the county of Stafford, 1825, the principal questio^i turned on the validity of that deed ; and the following appeared to be the facts of the case : Wynne was an attorney residing at Mold in Flintshire, and had acted in that character for Gamons the lessor of the plaintiff, 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 tlie 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 with him. The deed remained 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 any thing for liim. 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, 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 indebted 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 himself and family of £8,000. at the gave to him a box and the key thereto, sayin?, "Everything in that box is yours." Among the papers in the box was a deed bearing date twelve years earlier, the delivery of which the court was called upon to determine. In the box were also the grantor's will and some insurance policies which belonged to the grai^tee's sisters. Ch. 2) EXECUTION OF DEEDS 289 least. He desired the witness to tell Garnons that, although he could not pay him at that time, he would take care to make him perfectly secure for all the monies due from him. Upon this being communi- cated to Garnons he desired Barker to assure Wynne, that he would not then distress him, or expose his circumstances, but he expected that he would provide him securities for the money he, Wynne, owed him. This was communicated to Wynne, who expressed great gratitude to Garnons, and said, he would 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 hand-writing, containing a statement of his prop- erty, 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 inclosed in it another white paper parcel directed, in the hand-writing of Wynne, "Richard 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 hand-writing 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 mortgage deed found in the parcel was then 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 over- ruled the objections, 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 devised 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 tlie usual course of business executed in the office, and witnessed by him- self and his clerks. The learned Judge told the jury, that the first question for their consideration was, whether the mortgage to the les- sor of the plaintiff was duly executed by Wynne the deceased ; but that if tliey thought it was originally well executed, the question for their Aig.Pkop. — 19 290 DERIVATIVE TITLES (Part 2 consideration would be, whether the dehvery 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 departing 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 Hfetime 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 plaintiff. A ver- dict having been found for the plaintiff, Campbell in last Michaelmas term obtained a rule nisi for a new trial. BaylEy, J.* There were ^^vo points in this case. One , whether there was an effectual delivery oFa mortgage deed, under which the lessor of the plaintiff claimed, so as to make the mortgage operate. The oth- er, whether such mortgage was or was not void against creditors or a subsequent mortgagee. Upon the first point the _f acts were shpjtlythese^ In July, 1814, Mr. Wynne, an attorney, who was seised in fee of the premises in question, made a communication through a friend to the les- sor of the plaintiff who was a client, that he (Wynne) had misapplied above £10,000. of his (Garnons') money. Garnons answered, he relied and expected that Wynne would provide him securities 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 execution, 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, saying, "Here, Bess, keep this ; it belongs to Mr. Garnons." He came for it again in a few days, and she gave it him ; and he returned it on the 14th, 15th, or 16th of April, saying, "Here, put this by." It wag, then less in bulk than before, and contained the mortgage in question. Mr. W)mne 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 Y^ jury; one, whether the mortgage was duly executed ; the other, wheth- er the delivery to tlie sister was a good delivery ; and he explained to 8 The argument of counsel and that portion of the opinion relating to counsel's contention that the deed was void under St. 13 Eliz, cc. 4 and 5, are omitted. Ch. 2) EXECUTION OF DEEDS 291 them, *hat if the delivery was a departing with the possession, 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 life- time, or after his death, the delivery would be good ; but if it was de- livered 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 was urged upon the argument, that there was no evidence to war- rant 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 with the possession to his sister, ex- cept to put it out of his own control ? Why did he say when he deliv- ered 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, would 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 with his concurrence." The finding, therefore, 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, whether when a deed is duly signed and sealed, and formally de- livered with apt words of delivery, but is retained by the party execut- ing 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 \fill be sufficient, if such delivery puts the instrument out of the power and control of the party who executed it though such third per- son 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 Uarlow v. Heneage, Prec. Chan. 211, George Heneage executed a deed purporting to convey 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 condi- tioned to pay to them £1,000. at a certain day, in trust for his daugh- ters ; 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 accordingly. It was urged, that the deed and bond being voluntary, and always kept by the father in his own hands, were 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 292 DERIVATIVE TiTi^ES (Part 2 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. Chan. 235, 2 Vern. 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 settlement of 1684, but had it in his own power, and it was found after his death amongst his waste papers. A bill was filed under the settlement of 1690, for relief against the settlement 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 power of Sir James, that did not give him a power to resume the estate, and he dismissed the bill. In Lady Hud- son's Case, cited by Lord Keeper Wright, a father, being displeased with his son, executed a deed giving his wife £100. per annum in aug- mentation of her jointure; he kept tlie settlement in his own power, and on being reconciled to his son, cancelled it. The wife found the deed after his death, and on a trial at law, the deed being proved to have been executed, was adjudged good, though cancelled, and the son having filed a bill in equity to be relieved against tlie deed. Lord Somers dismissed the bill. In Naldred v. Gilham, 1 Pr. Wms. 57'7, Mrs. Nal- dred in 1707 executed a deed, by which she covenanted 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 possession, and afterwards burnt it and made a new settlement; a copy of this deed having been surrepti- tiously obtained before the deed was burnt, a bill was filed to establish this copy, and to have the second settlement delivered up and Sir Jos- eph. Jekyl determined, with great clearness, for the plaintiff, and grant- ed 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 binding 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 sh$ 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 com- mand; that, in fact, she had been imposed upon, by the deed's being made an absolute conveyance, 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 consistent with the posi-_^ tion 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 Boughton v. Boughton, 1 Atkyns, 625. In that case, a voluntary deed had been made, without power of revocation, and the maker kept it by him. Lord Hardwicke considered it as valid, Ch. 2) EXECUTION OF DEEDS 293 and acted upon it; and he distinguished it from Naldred v. Gilham, which he said was not appHcable to every case, but depended upon par- ticular circumstances; and he described Lord Macclesfield 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) im- plied an intention of revoking, (or rather of reserving a power to re- voke.) I Upon these authorities, it seems to me, that_vvhere an instru- ment 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 intend 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 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 tlie instant of such delivery? The law will pr esume, if nothing appear to tlie contrary, that a man will accept what is for his^ benefit (11 East, 623, per Lord Ellenborough) ; and there is the strongest ground here for presuming Mr. Garnons' assent, because of his declaration that he relied and expected Mr. Wynne would provide him security for his money, and Wynne had given an answer importing that he would. Shepherd, who is particularly strict in requiring that the deed should pass from the possession of the gran- tor, (and more strict than the cases I have stated imply to be neces- sary,) lays it down that delivery to the grantee will be sufficient, or de- livery to any one he has authorized to receive it, or delivery to a stranger for his use and on his behalf. Shep. 57. And 2 Roll. 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 au- thorities, that, on a delivery to a stranger for the use and on the be- half of the grantee, the deed will operate instanter, and its operation will not be postponed till it is delivered over to or accepted by the gran- tee. The passage in Rolle's Abridgment is this: "If a man make an obligation to L, and deliver it to B., if L 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. VI, 27." The point is put arguendo by Pas- ton, Serjt. in 3 H. VI, 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 causes tlie bond to be written and sealed, and delivered it to Calmady to deliver to the testator as defendant'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 sched- 294 DERIVATIVE TITLES (Part 2 ule, 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 de- fendant before any delivery over to the testator, and then testator's re- fusal 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 re- versed, 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 material here, that an uncondi- tional delivery to a stranger for the benefit of the grantee will enure immediately to the benefit of the grantee, and will 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 disagreed 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 de- fendant might not be able to find the plaintiff, and they relied on Taw'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 confirmed 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 there- by the obligation will lose its force ; (but, perhaps, in such case, A. in an action brought on this obligation cannot plead non est factum, be- cause it was once his deed,) and therewith agrees Hil. 1 Eliz. Tawe'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 presently, 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. Note, reader, by this resolution you will not be led into error by certain opinions delivered by the way and without premeditation, in 7 Ed. IV, 7 &c., and other books obiter." Upon these authorities we are of opinion that the delivery of this deed By lA^ynneT Ch. 2) EXECUTION OF DEEDS 295 and_£utting it into the possession of his sister, made it a good and valid deeT^aLJeast_irQiJl^the time it was put inta the sister's posses- sion." * * * )V. L FRYER V. FRYER. W, /. ¥ • h-^ (Supreme Court of Nebraska, 1906. 77 Neb. 29S, 109 N. W. 175, 124 Am. St. Rep. 850.) Albert, C.^° This is an a ppeal from a decree of foreclosure where- /0/7 ". J by the lien of plaintiff's mortgage is o-iven priority over tlie respectiv e V/'^^^^**'^Tl ju dgment liens of the two banks, defendants herein. The mortgage /^/ vZ^A^ is in the Torm of an a bsolute conveyance to the plaintiff by the de- """u fendant, William I, Fryer, and his wife of c ertain real estate in the Oy>^*..^^iuI city of Lincoln, was ji^rned and a.cknowlcdp^ed by the grantors on the ^Cjy 22d day of April, 1901, and was hi ed for record ^ n tlie 28th day of ff^^^^^ /T*'*^^**^ April, 1902, by William L. Fryer, who had retained it in his posses- U " sion after it was signed and acknowledged, and af ter it was rprnrHe H^ w as forwarded to him at Denver. Colorado . _^vhere he had taken up his abode. Pla intiff resides in the state of Iowa . On tlie 18th day of December, 1902,' each of the defendant banks brought an action against William I. Fryer, who was the fee owner, ami caused a wri t Q^/t of attachment to issue which was levied on the premises covered by ^"i^ ' t he mortgage . In each of these cases judgment was given in favor of the plaintiff therein and an order entered for the sale of the prem- ises for the satisfaction of the judgment. In the pre sent suit the co n- test is be tween the plaintiff and the tw o banks as t o th e prigritx Jii their respective lienSj and is now narrowed down to the single ques- tion whether there had been a delivery of the mortgage to the plain- tiff before the levy of attachments on the property. The two iDanks join in an appeal, and contend that, while the evidence shows the mortgage was signed, acknowledged, and recorded some time before their attachments were levied, it is insufficient to sustain a finding that it was delivered to the plaintiff before that date. Appellants' contention seems to be based on the fact that the plain- tiff never saw the mortgage nor had actual manual possession of it until after this suit had been pending for some time, and long after the levy of the attachments. But the authorities are uniform that ac- tual manual deliv ery_is not^s.sential to give effect to a deed.. In Issitt v. Dewey, 47 Neb. 196, 66 N. W. 288, it was held that, where the grantor places his deed on record for the piirpose and w^th the in- tent of passing title to the grantee, actual manual delivery and formal acceptance are not essential to the validity of the conveyance. In the case at bar the evidence is conclusive that at the date of the mortgage 9 See Xenos v. Wickham, 13 C. B. N. S. .381 (1S62), 14 C. B. N. S. 4.35 (186-3) L. K. 2 H. L. 296 (1867) ; Bligbt v. Schenck, 10 Pa. 285, 51 Am. Dec. 478 (1849).' 10 A portion of the opinion is omitted. 296 DERIVATIVE TITLES (Part 2 deed the mortgagor, William I. Fryer, was indebted to the plaintiff on two notes, aggregating $5,000, for borrowed money, and that at the time such indebtedness was contracted it was agreed between the parties that William I. Fryer should convey tlie property in suit to the plaintiff as security for the debt, and file the conveyance for rec- ord. William I. Fryer testified on behalf of tlie plaintiff", and, while portions of his testimony would indicate that he had no clear recol- lection of what he did with the instrument after it was forwarded to him at Denver, toward the close of his testimony he testified positively that it had been forwarded to the plaintiff before the date of a certain payment made by him, which was made September 21, 1902, and al- most three months before the attachments were levied. It was after learning of this testimony that plaintiff made search and found the instrument among his papers. His statement, received in evidence as a part of his testimony, accounting for his failure to discover it earlier, is to the effect that it must have been received by another member of his household and placed among his papers during his ab- sence from home. The record further shows that at least two months before the attachments were levied William I. Fryer had importuned the plaintiff" to reconvey a portion of the mortgaged premises to the latter's wife, and that plaintiff had refused to do so. The evidence, we think, is amply sufficient to show that tlie instrument was placed on record by William I. Fryer with the intent and for the purpose of passing the title to the plaintiff, and to render evidence of an actual manual delivery and formal acceptance unnecessary, under the rule announced in Issitt v. Dewey, supra. * * * The decree of the district court seems amply sustained by the evi- dence, and we recommend its affirmance. DuFFiE and Jackson, CC, concur. By the Court. For the reasons stated in the foregoing opinion, the decree of the district court is affirmed.^ ^ -/ 11 See Moore v, Hazelton, 9 Allen (Mass.) 102 (1864), where an insolvent guardian, being largely indebted to his ward's estate, upon the ward's com- ing of age, executed to the ward, in the presence of an attesting witness, an assignment of a mortgage of realty in a sum less than that due to the ward. This assignment was kept by the guardian until after the institution of pro- ceedings in insolvency by him, more than a year afterwards, when it was taken by the assignee in insolvency. The ward, who knew nothing of the assignment until after the insolvency, filed a bill in equity to compel the de- livery of the assignment. Cll. 2) EXECUTION OF DEEDS 297 MITCHELL V. RYAN. (Supreme Court of Ohio. lSo4. 8 Ohio St. 377.) The action is one of ejectmenj^ and is in this court by agreement of parties, on the facts appearing in the notes of Judge Whitman, taken at the trial in the common pleas, and the deposition of Margaret Shan- non. From the judge's notes, it appeared that the plaintiff first offered a dee d fro m Owen Shannon to Ellen Shannon, for the land in con- troversy. TEis^ deed, dated April 2, 1838, was left with the recorder of Perry county, April 6th, 1838, and was actually recorded^ April JJth^l838, It was agreed that Owen Shannon was the common source of title. The marriage of Ellen_ Shannp? to John Mitchell, January 7th, 1840, was admitted. Her death was also admitted. The posses- sion was admitted always to have been in Owen Shannon, or the de- fendant Ryan. The defendant oft'ered in evidence a deed from Owen Shannon and wife, to him, Ryan, dated July 27tli, 1847, recorded Feb- ruary 14jth. 1850^ Owen Shannon, the grantor, testified in substance as follows : "El- len Shannon was my daughter ; at the time of the deed to her, she was in the east ; she knew nothing of it ; no consideration passed, and she never had any knowledge of the conveyance ; she was born in 1823 ; a year after the execution of the deed, she came to Ohio ; she was married in about two years after the conveyance ; at this time I was in possession ; I continued in possession until I contracted to sell to one Kinney ; he took possession and made improvements ; left, and gave up the contract ; then Patrick Haughran went in under verbal contract with me, and made improvements ; he left ; I then sold to Timothy Ryan, he paid me two hundred dollars ; Ryan never moved on the place; my daughter lived a mile from the place after her marriage; she died last spring or fall." It was agreed that the taxes were always paid^by^ Shannon, till^the sale to Ryan. Henry Green testified that a short time before the last term of the court, Mitchell had no knowledge of the deed to his wife ; Duffy told him ; this was just about the time of the death of the wife. Owen Shannon being recalled, testified that he sent the deed by mail, from McConnellsville to Somerset, to be recorded ; it came back in the same way ; he kept the original deed till it was lost. The deposition of Margaret Shannon was in substance as follows : "I am a sister of Ann Ryan, wife of the defendant, and also of Ellen Mitchell, deceased, wife of John Mitchell. Ellen lived in New York before- she came to Ohio; she was the last of father's family who came ; he sent fifty dollars to bring her out ; had no knowledge of her owning any land in Perry county previous to her death ; I was with her off and on for two years before her death, she being sick ; she had not enough of the necessaries of life ; she had nothing that was 298 ■ DERIVATIVE TITLES (Part 2 nourishing, but did not complain, because she thought her husband was poor; she and Mitchell, after they left McConnellsville, lived on a farm owned by Mitchell and his father, until it was sold to P. Pagan ; tliey then moved on to Caron's farm, where they lived about a year, and until she died; that farm had cleared land, but they lived in a small log cabin in the woods; during tliat time Carons and they fell out, and she wanted to move on to an eighty acre tract adjoining fa- ther's farm; she told me that if Pagan would pay his notes accord- ing to promise, they would buy a nice little place, if only 40 or 80 acres; I am acquainted with the place in dispute; during the time my sister lived in the neighborhood, Kinney lived on it ; next, Joseph Perril, who occupied it at least during one crop ; after him was Patrick- Haughran, who raised on it, I think, more than one crop ; Ryan then had it ; he rented it to Dawson, and afterward to Dew, who now oc- cupies it ; it had on it, at the time of my sister's death, two houses and a stable, and a considerable of the land was cleared; never heard her or John Mitchell say anything about owning it; it would have afforded a more comfortable place to live in, than that where she died; Ellen knew all about the sales and the renting of the place by father; I told her all about it; she asked me how much father got of Ryan for it: told her $200 ; Ellen had no property with which to purchase land be- fore her coming to Ohio, or previous to her marriage; William, Michael, and Mary Ann, the plaintiffs in this action, were the only children Ellen left." Thurman, C. J. The decision of this case depends upon the qiies- ^ tion whether the recorded instrument, purporting to be a deed from__ (Dwen Shannon and wife, to Ellen Shannon, was ever, in contempla- tion of law, delivered. As the statute provides that copies from the records of deeds, duly certified by the recorder, and under his official seal, "shall be received in all courts and places within this State, as _prima^ Jacie evidence of the existence of such deeds," it is very clear that the record of a deed is prima facie evidence of its delivery ; since, without delivery, it can- not exist as a deed. Swan's St. (New Ed.) p. 310, § 10. To the same effect are the authorities, Steele v. Lowry, 4 Ohio, 74, 19 Am. Dec. 581; Foster's Lessee v. Dugan, 8 Ohio, 87, 31 Am. Dec. 432; Hammell v. Hammell, 19 Ohio, 18; Jackson v. Perkins, 2 Wend. (N. Y.) 317; Gilbert v. N. Am. P. Ins. Co., 23 Wend. (N. Y.) 46, 35 Am. Dec. 543. It is also clear that this presumption may be rebutted by proof. For the statute makes the record prima facie evidence only, for tlie obvi- ous reason that it may be the result of accident, mistake, or fraud. And being the act of a mere ministerial officer, there is no reason why it should not be subject to explanation. See the cases above cited and also Chess v. Chess, 1 Pen. & W. (Pa.) 32, 21 Am. Dec. 350, and Jack- son V. Schoonmaker, 4 Johns. (N. Y.) 163. It was therefore proper for the defendant to introduce such rebut- Ch. 2) EXECUTION OF DEEDS 299 ting testimony; indeed, it was indispensable for him to do so, as the burthen of proof that a recorded deed was not delivered, rests upon the party attacking it. He accordingly called Owen Shannon, the grantor, who testified as follows : "The grantee, Ellen Shannon, was my daughter; at time of deed to her in 1838, 2d April, she was in the east; she knew nothing of it; no consideration passed, and she never had any knowledge of the conveyance; she was born in 1823; she was 15 years old when the deed was executed ; she came to Ohio in a year afterward ; was mar- ried in about two years after the conveyance; at this time I was in possession, and I continued in possession until I contracted to sell the land to Kinney; he took possession, made improvements, left and gave up his contract ; then Patrick Haughran went in under a verbal contract with me, and made improvements; he left; I then sold it to Timothy Ryan, the defendant ; he paid me $200 ; agreed to ; that was the consideration ; Ryan never moved on to the place ; Ryan agreed to sell to Duffy ; the legal title is in Ryan, and. he is in possession by Duf- fy ; my daughter (Ellen) lived a mile from the place after her marriage ; she died in January, or February, 1852 ; she never had any notice of the conveyance ; I sent the deed by mail from McConnellsville to Som- erset to be recorded ; it came back the same way ; I kept the deed until it was lost." Other testimony was given by the defendant, tending to prove that the grantee, Ellen, knew of the control over the property exercised by her father, and of his several contracts in relation to it; and that she made no objection, nor asserted any claim; but the same testimony strongly tended to establish that she never had any knowledge of the conveyance ; nor did her husband know of it until after her death, and after the sale to Duffy. It was also agreed that Owen Shannon paid the taxes upon the land until he sold to Ryan. Upon this testimony, the first question for our consideration is, with what intent did Owen '"-^- Shannon send the deed to the recorder to be recorded ? Did he thus deliver it for the use of the grantee and to pass the title to her im- mediately, or had he some other intent? That a delivery of a deed to a stranger for the use of the grantee, may be a sufficient delivery, is well settled. 1 Shep. Touch, 57, 58; Jackson v. Phipps, 12 Johns. N. Y. 421, But it is said in the Touchstonej that if such a delivery be made without a declaration of the use, it seems it is not sufficient. The rea- son of this is very obvious. If the deed be delivered to the grantee, tiie natjjraLpr esump tion is that it is for his use, and no words are necessary; But if it be handed to a stranger there is no s;ich natural presumption; and hence, unless there be something besides the mere act of delivery to evidence the intent, it is impossible to say that the grantor designed to part with the title. For the delivery may be by 300 DERIVATIVE TITLES (Part 2 mistake, or for mere safekeeping, or for some other cause wholly in- dependent of a purpose to transfer the estate. But while it is thus apparent that the mere act of delivery to a stranger is insufficient, it is equally clear that there is no precise form of words necessary to declare tlie intent. Anything that shows that tlie- delivery is for the use of the grantee is enough. For the real question is, does the grantor by his act mean to part with his title ? and whatever satisfactorily manifests this design is as good as an expHcit declaration. Now it does seem to us that when a man executes and acknowledges a deed and delivers it to the recorder, with unqualified instruction to record it, as was done in the present case, the reasonable presumption, in the absence of any rebutting circumstance, is that he means thereby to transfer his title.^^ And this presumption is pow- erfully strengthened when, as in the case before us, the grantee is a minor child of the grantor, and is at a great distance from him, so that the deed cannot be delivered to her in person, and when too the circumstances tend to show that it is a gift, and a reasonable one, for aught that appears for the grantor to make. It is argued, however, that there are circumstances in proof that rebut the idea that Shannon, when he caused the deed to be recorded, meant to part with his title ; and we are referred to his subsequent pos- session of the instrument, to his subsequent control of the property and contracts to sell it, and to the failure of the grantee, or her hus- band, to assert any claim to the land before the commencement of this suit. As to the last circumstance, it is explained by the fact that the gran- tee died without any knowledge of the deed ; nor did her husband know anything about it until just before this suit was commenced. No inference, therefore, can be drawn from their silence. What weight, if any, should be given to tlie fact that the grantor never com- 12 "It is unnecessary to controvert the proposition, however, that the rec- ord of a deed may be an evidential fact having more or less tendency, ac- cording to circumstances, to show that the deed had been delivered to the grantee therein named or to some person for his use. It may. under some circumstances, be prima facie evidence of delivery. But there is no suffi- cient \^'arrant in reason or precedent for declaring as a rule of law or pre- sumption of fact, that the record of a deed is, imder all circumstances, prima facie evidence of delivery. On the other hand, experience has shown it to be undoubtedly time that, under some circumstances, the record may have no legitimate tendency whatever to prove a delivery. The case of Hill v. McNichol. SO Me. 220 [13 Atl. 883 (18S8)], is an apt illustration of this state- ment" Egan V. Horrigan, 96 Me. 46, 50. 51, 51 Atl. 246, 248 (1901). "If the question were a new one, there would perhaps be nothing diffi- cult or impracticable in the conception that the act of leaving a deed with the register for record by the grantor with the intent on his part thereby to vest the title in the grantee should constitute the register the agent for delivery of the grantee, and that upon the assent of the grantee tlie transaction should take effect as a valid delivery. But we think the law is otherwise in this state. * * * » Barnes v. Barnes, 161 Mass. 3S1, 384, 37 N. E. 379, 380 <1894). But see Rev. Laws 1902, Mass. c. 127, § 5. Ch. 2) EXECUTION OF DEEDS 301 municated to either of them, the existence of the conveyance, is another matter. Much stress has sometimes been laid upon the fact of the grantor's possess ion of a deed after an alleged delivery of it ; and it has been said t hat such s jubsequent possession is a very pregnant circumstance to show that t he supposed delivery was not absolute. That this may often be the case is undeniable ; but where the deed has been recorded, such subsequent possession is evidently entitled to much less consid- eration than where it has not. An unrecorded deed is the sole evi- dence of title, and it would be unsafe and altogether unusual to leave it with the grantor after its delivery. But a recorded deed is not the sole evidence. The statute makes the record also proof, and a copy of it is admissible, even though the party offering it has the deed it- self in, his possession. Hence, with us, people have been proverbially careless about their deeds after they, are recorded, and often, if not generally, seem to attach more importance to the record than to the original. Add to this that the grantor, Owen Shannon, was the father of the grantee, Ellen ; that she was a minor, and away from home several hundred miles when the deed was recorded, and that she re- mained away for about a year, and it seems to us that but little, if any importance ought to be attached to his subsequent possession of the instrument. He was her natural guardian, and there was nothing strange in his having the custody of what belonged to her, even though it was a deed in which he was the grantor. Waiving the question, whether the subsequent acts of ownership, ex- ercised by Owen Shannon, in respect to the land, and his failure to communicate the existence of the deed to his daughter, are admissible evidence to prove that it was not his design to transfer the title to her when he caused the instrument to be recorded, we are inclined to the opinion, after a consideration of tlie whole case, that the testi- niony rather tends to prove a change of his mind subsequent to the delivery^t o the re corder, than to establish that it was not then his pur- gose to convey tih^ estate. If it had been his purpose when he made the delivery, to retain any control over the property, it is reasonable to suppose he would have declared such purpose to some one; if not to the recorder, at least to some member of his family, or to some friend. He was aware that by causing the deed to be recorded, he would, prima facie, be divested of his title, and it is not very reason- able to suppose that he would make such a prima facie case against himself, without taking some precaution to enable him to rebut it, if he did not mean fo do what his act purported. But this is not all. He was called as a witness, and testified. When he did so, he had the strongest motives to state that he did not mean, by the execution and recording of tlie deed, to part with his title. For he had subsequently conveyed the land to Ryan with warranty, and if he made that conveyance wilfully and corruptly, knowing that he 302 DERIVATIVE TITLES (Part 2 had no title, he committed no less than a penitentiary offense. Yet he uttered not one word to explain the intention witli which he sent the deed to the recorder. Nor did the defendant venture, so far as ap- pears, to put a question to him touching his intent. Why this silence of both witness and party? Why this failure to prove what the inter- est of both required to be proved? Why this neglect to make a suc- cessful defense? It -seems to us there is but one answer we are au- thorized to give to these questions, and that is, that the question was not asked, because the answer would have been unfavorable, and, for the same reason, there was no unasked statement by the witness. This is the ordinary presumption where a party fails to offer proof of what he ought to prove, if it exist. It is almost incredible that, in the case before us, the defendant would fail to ask, and the witness to state, whether it was the intention to convey the land, if that intentipn had not in fact existed. The very object for which the witness was called was to prove that the deed was never delivered, but instead of asking him directly for what purpose he caused it to be recorded, the defend- ant contents himself with proving circumstances from which he asks the court to infer the purpose. ) ■ We suppose the truth to be, that the deed was sent to the recorder to \ be recorded in order to vest the title in the grantee, and make the prop- ( erty hers ; but, that afterward, the grantor changed his mind, and con- ( eluded not to give it to her. And, it is altogether probable, assuming the deed to be a gift, that he supposed he had a right to revoke it. This view reconciles his conduct perfectly, without imputing to him any / wrong motive at any time, and it is the only view that, upon the testi- ( mony, we feel at liberty to take. And here I would rernark, that very clear proof ought to be made, to warrant a court in holding that a man who has executed and ac- knowledged a deed, and caused it to be recorded, did not mean thereby to part with his title. If such deeds could be overthrown by slight testimony, a door would be opened to the grossest fraud. The testi- mony should, therefore, do more than make a doubtful case. It should establish clearly, that the dehvery for record was not for the use of the grantee. But it is urged, that even if Owen Shannon did intend to part with the title, yet the delivery was insufficient, because it was never accepted, or assented to by the grantee; and it is said that every sufficient de- livery includes such assent or acceptance, for no one can be made a grantee without his consent. ^^ * * * ||- follows that the plaintiff is entitled to judgment. 13 The portion of the opinion relating to matter of acceptance, omitted hei-e. Is printed infra, p. 383. Ch. 2) EXECUTION OF DEEDS 303 MATSON V. JOHNSON. (Supreme Court of Washington, 1008, 48 Wash, 256, 93 Pac. 324, 125 Am. St. Rep. 924.) RuDKiN, J. F. Lanston died testate in Kitsap county in this state on the 15th day of June, 1902. During his last illness and a few days before his death, he c alled in one of his neighbors and directed him__ to p repare a deed and will in order that he might execute them . A deed g was accordingly prepared purporting to convey the property now in C^t-t^^v, controversy t o the three minors who are plaintiffs in this actio n. The instrument was signed by the grantor in the presence of two wit nesses. but was not acknowle dged because there was no officer present author- ized by law to take the acknowledgment of deeds. The grantor stated to those present th at he would appoint Mr. Tohnson as his executo r, and would instruct him to have the deed acknowledged and pro perly executed . The property described in the deed was of the value of about $100 and was the only real property owned by the grantor. At the time of the execution of this deed and as part of the same transac- tion, Lanston executed a will making various small bequests which a re \Ju aJ(-/ H*- >*^ delivery was lacking. aJ^-*-^ * Her intended disposition of the property was evidently of a testa- mentary character. "In case she died," as Moies testifies, "she wanted the property to go that way." Bjit an instrument which is intended t o o perate as a will, without being executed in accordance with the pro - visions of the statute relating thereto ( Ggn^JLaws 1896, R. I. c. 203), cannot be allowed to have the effect of a will. See Providence Insti- 316 DERIVATIVE TITLES (Part 2 tution for Savings v. Carpenter, 18 R. I. 287, 27 Atl. 337, and Coulter V. Shelmadine, 204 Pa. 120, 53 Atl. 638. For the reasons above given, the d eed in question must be set a side and declared null and void and of no eftecE Decree accordingly.^* MOORE v. TROTT. (Supreme Court of California, 1909. 156 Cal. 353, 104 Pac. 578, 134 Am. St. Rep. 131.) BivATTY, C. J. This is an ac tion to quiet title to certain lands for- m erly the property of Patrick Moore, deceased . The plaintiff is Moore's widow and administratrix, and the defendant, Mrs. George Trott, is the jerson named as grantee of said lands in two de eds which, y y _i m>-tfer-tg!TtTv 'r elinquishment of the right of recall by the grantor in hit; instrnrtin ns to the person cha rged with the duty of making the delive ry. The transfer, or attempted transfer, of the estate being entirely gratuitous, the person named as grantee has no right beyond that which is volun- tarily conferred and the extent of that right is to be determined in every case where specific instructions are given by what passes between the grantor and his selected agent. The agent is of course bound to do what his instructions require him to do — no more, no less, and when, as in this case, his only instructions are in writing, the effect of the transaction depends upon the true construction of the writing. "" " It Is in 1 other words a pure question of law wheth er there was an absolute de- I H^rp|-Y nr rtqt^ \ What, then, is the proper construction of Moore's letter? It seems very plain that Tietzen is authorized to deliver the deeds only "in case of my not returning from the California Hospital where I am going for an operation," and t he implication that if he does ^ retjj jn the deed s a re to be at his disposal is clear . But counsel ior respondent contends that a different intention is revealed by subsequent clauses of the let- ter. He relies greatly upon the direction to lock the deeds in Tietzen's safe "and in case I should die to immediately hand them to the parties," etc. We think that this, so far from being inconsistent with our con- struction of the first part of the letter, is only corroborative of itt I.fl Moore's intention had been to part with the deed absolutely he would Ch. 2) EXECUTION OF DEEDS 319 ^C /n ot have directed their delivery "in case I should die," for he was su re Y^^*''^ • ^/>^' \ Jio die at some time. He w ould m ore naturally have said when I die . Al^^^^^^ \ It is apparent that he was not without some hope of obtaining relief more or less permanent from the contemplated operation, and if he had returned from Los Angeles believing himself restored to health and had demanded a return of the deeds from Tietzen we can conceive of no ground upon which the demand could have been resisted. The concluding part of the letter to Tietzen, which counsel agree must be read without any period after the words "until you deliver them," nei- ther aids nor weakens our construction of the first part. The direction to "keep to yourself the names of the parties named in those deeds until you deliver them after I pass in my checks," etc., while they cer- tainly do consist with the idea of that death which is certain to come to every man, were entirely appropriate as referring exclusively to death as the result of the operation about to be performed. Aside from the letter to Tietzen which, as above stated, contained the only instructions ever given him as to the disposition of the deeds, it was shown by the testimony of numerous witnesses that Moore wished the persons named as grantees in his deeds to have the property therein described, and that his relations to those parties, and his con- dition and circumstances made them the reasonable and meritorious objects of his bounty. There is, moreover, no reason to^doubt that" he died believing that his deeds in the hands of Tietzen would be suffi- cient to accomplish his purpose, but his purpose is defeated by the fact that the delivery was not absolute. A technical but inflexible rule o f l aw governing the transfer of real property prevents his intention fr om being carried niit.^^ * * * Counsel for respondent urges with apparent seriousness the prop- osition that the deeds to Mrs. Trott having been found in her pos- session there is a presumption of delivery to her at their date, which is not rebutted by the evidence in the case. We think this presump- tion is not only overthrown by the evidence, but that the specific find- ings of the court show that t he only delivery was that made by Tietze n a fter Moore's, death . The or der of the superior coyt denying a new trial is reversed. ^^ _ , 17 A portion of the opinion, in which a number of eases are reviewed, is omit- ted. // 18 See s. c, 162 Cal. 268, 122 Pac. 462 (1912). ' ^ < d,^^ The owner of land, ill with consumption and believing herself on her death- ^^ ' bed, prepared a deed of said land and gave same to X., with instructions that, ^^ "if I recover, I want them back again ; and if I do not, you deliver to" the grantees. The grantor died six weeks later, and X. then turned the deed over to the grantees. Was there an effective delivery? Williams v. Daubner, 103 Wis. 521, 79 N. W. 74S, 74 Am. St. Rep. 902 (1899) ; Seeley v, Curts, ISO Ala. 445, 61 South. 807, Ann. Cas. 1915C, .381 (1913). The owner of land made a deed thereof and deposited same nith a trust com- pany, with written instructions "to hold it until a specified date, at which time to return it to the grantor if she is then living, and in the event of her death in the meantime to deliver it to the grantees." The grautdr died prior to the ;320 DERIVATIVE TITLES (Part 2 OWINGS V. FIRST NATIONAL BANK. (Supreme Court of Nebraska, 1914. 97 Neb. 257, 149 N. W. 777.) ReBsE, C. J. This is an action brought by plaintiff, I jenry Ovv ings, against the First National Bank of Johnson, Nebraska, to recoveii -the s um of $5,129.67, the proceeds of the sale of a tract of land, describe d i n the pleadi ngs , but the description of which need not be "stated he re. The land was formerly owned by Lizzie E. Schmidt, who was later married to Henry Owings. They went to the state of Colorado, and after their marriage there located in the city of Sterling, in that state. Mrs. Owings' liealth_failed, and it became apparent that she was in a precarious condition. O n the 28th day of June. 19 11, Mrs. Owings e xecuted a warranty deed to her husband, conveying the land in ques- tio n to him, and placed it in a trunk in the house, and kept it until th e 2d day of December, of the same vear . At that time it was apparent that she could not recover, and that the date of her dissolution was not far distant, her malady being consumption . She was confined to her bed, and called for the deed to be brought to her. She then ob- tained pencil and paper and wrote the following instructions: "Ster- ling, Colorado, Dec. 2, 19U. I n case of my death, give this deed^ to my husband. Henry Owings, to be recorded so my property is hi s. I am in poor health and no hopes of -ever getting wel l . He is the onl y p rovider I hav e_SQt. Mrs. Lizzie Owings, Sterling, Colo." She handed the deed and the above described memorandum to her hus- band, requ esting him t o place them in a local bank at Sterling, wh ich he_did^ Mrs. Owingrdied on the 7th day of January. 19jj ^ The sec- ond day after her death, plaintiff called at the bank and r eceived th e d eed and memorandum of instructions, above copied, as wel l as some money on deposit, and made preparations for returning to John son, Nebraska, with tb^ rpm;iin<; nf his deceased wife . Prior to her de- cease, she, with her husband, had negotiated tlie sale of the land to one J. George Hahn for the sum of $5,640, and o n the 11th day_p f D ecember, 1911, with plaintiff, executed a warranty deed to the pur - c haser, which was deposited in the First National Bank of Johnso n, ■^*^ A i n this state. Prior to this time, and on the 2d day of December, 1911, i^i^.^y'^^ a wr itten contract of sale was made with Hahn for the sale of th e t hen paid, and the remainder on time at the option of the purchase r. . Lil date specified, and tbe deed was given to the grantees. Was there an effective t JjK' ' delivery? Long v. Ryan, 166 Cal. 442, 137 Pac. 29 (1913). •■^ A husband prepared a deed of bis lauds to his wife, and at the same time the wife prepared a deed of her lands to him. Both deeds were deposited with a third party, with instructions not to return either deed except upon the written order of both, and in case of death of either to deliver the deed of the deceased to the survivor. The wife died first, and her deed was given to the husband. Was it an effective delivery? Dunlap v. Marnell, 95 Neb. 535, 145 N. W. 1017 -(1914). ^'^^ \o^ Ch. 2) EXECUTION OF DEEDS 321 Instead of accepting the time option, Halin paid into the bank the whole amount, and accepted the deed, with another one executed by P^amiit Mrs. Owings left no child, nor father, nor mother, surviving her, but she had two brothers, Henry Schmidt and Charles J. Schmidt, who dem anded one-half of the money in the bank as the heirs o f Mrs. Owings. The bank refused to pay tlie money to either claimant, when this action was brought against it by plaintiff for the whole amount. The bank filed the statutory affidavit to the effect that it held no claim on the money, but that it was demanded by the claimants, and asked to be protected. The court ordered the brothers to inte r- vene and__set_Ji£their claims by a day fix ed by the courts whichth ev dig . contending~tKarthe deed frorti Mrs. Owings to her husband did ,-^ a. /^ r iori:onvey any title to him for Avant of delivery, ^ t hat the sale of the ' l and to Hahn was of her property, and bv reason of their relationsh ip t o her they were entitled to one-half of the fund under the provisions oj the stat utes of d escent in this state. It appears that Henry Schmidt held a note against his sister, Mrs. Owings, for the sum of $1,019.25, growing out of the settlement and adjustment of an estate to which - the land formerly belonged, and w hich note Mrs. Owings directe d sh ould be paid at the time she handed the deed to plaintiff at Ster ling. There is no question as to this sum of money, plaintiff having agreed at the trial that Henry Schmidt should receive it out of the fund. Th e cause w as tried to the court wjthout the intervention of a jur y. when a finding'"a n3 j udgment was entered, giving tlie $1.019.25 to Henry" Schm idt, and the re.s idue tojbe^ paid by the bank to p lajntiff. Def endants. xo lp^'vp^^er Sf appeal . "The real, and indeed the only, question presented is : Was the de ed/ f rom Mrs. Owings to plaintiff so delivered to hirn as t o pass the tit] e ? The negotiations for the sale to Hahn had so far progressed that the contract of sale to the purchaser was signed on the day the deed was handed to plaintiff for deposit in the Sterling bank, but the contract an4 conveyance to Hahn were both signed by Mrs. and Mr. Owings. Considerable testimony was taken at the trial showing what occurred at the time the deed was sent to the Sterling bank, as well as declara- tions made to others by Mrs. Owings after the execution of the deed and before the 2d day of December, the day it was sent to the bank. The written memorandum was made by Mrs. Owings while on her sickbed, and she never was "down town" after that date and prior to her death. She never made any effort to countermand those instruc- tions, but, so far as is shown by the record, shfc was at all times there- after entirely pleased with what she had done. I^ad she been able to go to the bank and deposit the deed with oral instructions as writt en. t he case would fall within the rule of Roepke v. N ntymann, QS Nph 589, 1 46 N. W. 939, a nd we are up p^l^ ^''^ gf'p ^^y^ nnflpr hfr yqr\\\ew i nstructions to the bank, they would not be of equal forc e. That case Aig.Prop. — 21 322 DERIVATIVE TITLES (Part 2 and Brown v. Westerfield, 47 Neb. 399, 66 N. W. 439, 53 Am. St. Rep. 532, are decisive of this one, and it is not necessary that the law of those cases be further examined. W e are satisfied therewith, and that the judgment of the di strict court is right and it is affirmed.^" STONE V. DUVALL. (Supreme Court of Illinois, 1S75. 77 111. 475.) Writ of Error to the Circuit Court of Monroe county; tlie Hon. Amos Watts, Judge, presiding. This was a bilUn_chancei:^, filed by Washington Duvall and Mary Duvall, his wife, against G eorge Stone, Julia Stone, Pearly Stone and Bissell Davis, heirs at ja\v c }i j^riry ■^t cuie,_d£ge ased. and ^ W^^i^ffl S tone, h "usbanrl cff Mary ,Stnne, tn set aside a ( jeed mad e-Jiy th£. XQm- plainants to. said Marv Stone . The material facts of the case are set :l^orth in the opinion of the court. {^^^j*^^^ P 1^a^^,JIU/'^ ^irtv(-^ Walker, J. The evidence shows^tnat de fencmnts in error had each been previouslv marx jed, Washington having a daughter by that former marriage, who was married to William Stone ; Mary had a son by her previous marriage, named Allen Agnew. They each owned a small amount of real estate when married, a n d discord a fterwards having arisen between them, it was agreed that they should respectively r elinquish or convev their claim tqjsach other's property, so that the s urvivor would have no interest in the real estate of the other — to cut ofif the claim of dower by the wife in the property of the husband, and the right of curtesy of the husband in the property of the wife, and to prevent their' step children from claiming any interest in the property of their step parents. In consummating this arrangement, defendants in error went to a justice of the peace, who, under their directions, preparedjle^s which they e xecuted and acknowle dged. B y one of these deeds the land owned by the husband was conveyed in fee to his daughter, Mrs. Mary Stone. By the other, the wife's real estate was conveyed to Allen Agnew. T he justice was directe d to ha ve the deeds recorded, a nd t o hold them until the death of the parties, a nd then deliver them to the r espective grantees ! subsequently Mrs. Stone died, leaving"Trer husband, and tlie other defendants, her minor children, surviving her. 19 In Loomis v. Looiuis, 178 Mich. 221, 144 N. W. .'i52 (101.3). the grantor, after signing the deed, instructed the scrivener to retain i)ossessi(ni thereof, ".and that if anj'thing occurred to her, happened to her, to deliver this deed to" the grantee. After the grantor's death the scrivener turned the deed over to the grantee. The sc rivener testified thnt. if the grnn tnr had call ed for the d eed during h g"- 'if'^tMll^i ^^ '"'"'llrl [I'-'^i'^^i'ly lin ve snrrendered it to lier. The court held there had heen an effective delivery, an iimuediate estate having vested in the gran tee, s uhj ect to a l ife estate in the g;rautor. See O'Brien v. O'Brien, 19 w. D. ad, i2b i^.'w. 307Ti^oj: — l^^^ Ch. 2) EXECUTION OF DEEDS 323 The deeds were recorded , as required, by the justice of the peace, and held untilliTter Mrs. Stone's death, when Duvall called and took the deed executed to her from the justice. I t appears that Stone, with hi s 9Sx*^ wife, was in possession of t he property conveyed to his wife wh en "^ ' ^(X^ the deeds were made, and he so continued in possession until after the ^C^^'\^^^ s uit was broug ht" ~ ~~ ~ ~ Complainants claim that the deed to Mrs. Stone was not made in pursuance of their intentions, and contrary to their directions ; that the de ed was never delivered to the grantee, or to any one for her , \(J> ^d \\\ej^'^VeA tn have it.^e,t a^si de an d c ancelled, and tlie prps grty r estored t o Duvall. as it was before the deed was made. On a hear- ing, the co urt below granted tlie relief sought, and defendants bring t he record to this court on error, and ask a reversal. The evidence of the justice of the peace seems to be rather incjefinite as to what the expressed purpose of the parties was when he drew the deeds. He is, however, positive that he was directed to prepare deeds to convey the land. He proposed to fix the matter by agree- ment, will or otherwise, but Duvall declined, saying his wife desired deeds. He, when asked the direct question w hether the purpose w as not to convey Duvall' s interest in h is wife's property to her son, a nd a nyinterest she held m Duvall s property to Mrs. Stone, an d whether Duvall did not so inform him, says he believes t hat was the meanin g, but that he could not swear to the exact words. He also says that he was afterwards s o informed by Mrs. Duvall . He nowhere says that it was understood or intimated that the parties intended or said they desired to retain any interest in the property. • By a conveyance in fee, they undeniably would accomplish the purpose of preventing such claims as effectually as by any other mode ; and it is strange, if such was the intention, that they did not say that was their only pur- pose. Duvall told Stone that he intended to convey the property to his wife, as Stone states in his sworn answer. The deed having been subsequently made in accordance with this declaration, and in pursu- ance to the advice received from the attorney, a different purpose from that expressed in the deed should be clearly proved, before a court of chancery would interfere to set it aside. T he deed itself, in prop er for m and duly executed, is strong evidence of the grantor's intention . anc T to overcome it. the evidence should be clear and convincing . Here we find a man largely advanced in life, the father of a woman having a family of children, and of limited means, and, as it seems, fea rful that his wife would, at his death, hold dower in his propert y, de termined to secure the property to his daughter, and it is not out of t he usua l cou rse of human action for him to make a conveyance to her. He inquir ed if he__ could ; he sa id he would , and finally did so convey it. Duvall, himself, testified, and he does not state the pur- pose of the conveyance, nor the instructions he gave to the justice of the peace. He does not say that the deed did not carry out his pur- 324 DERIVATIVE TITLES (Part 2 pose virhen it was made. He is silent as to the execution of the deed, or what he said to the justice. He does not say there was a mist ake. 1^ that the justice did not do precisely what he desired . _ . It is, however, said there was no consideration paid for the prop- ' erty. He acknowledges, in his deed, that tliere was, and he, and all others, fail to disprove the acknowledgment of the fact in the deed. The ju stice says he knew nothing of any consideration bein^ pa id, b ut that does not negative the stat ement in the deed that it was. Even if it was necessary to prove a pecuniary consideration to sustain the deed, still, tl ie deed, uncontradicted, proves that it was pa id. We will not stop to inquire whether natural love and affection, although not expressed in the deed, would not-sustain it, or whether, on his own theory of the case, the getting of the property free from his wife's dower would not be sufficient. It is ma nifest that complainants intended to convey some intere st in, and title to th ese premises to Mrs. Stone, but what interest is not sfiown by~the evidence. Whether it was to be a fee subject to a life estate in the grantor, or some other estate, does not appear. Nor do counsel suggest what estate it was. To cancel the deed would be t o permit Du vall to change his mind, and to defea t his act deliberately dQne_att eF consul t ation and advice taken, and done m accordance with his previously expressed purpose to convey to Mrs. Stone. It would be clearly wrong to abrogate the deed, unless it clearly appeared that an estate less than a fee, and such an estate as terminated with her life, or previous thereto, was intended to be conveyed, but was not by reason of a mistake. It is urged that the deed was never delivered. It was not, to Mrs. Stone, as she was probably not aware of its existence for a considera- ble time afterwards, if it ever came to her knowledge. Was the de - 1 i very to the justice of t he peace, with directions to record and hojd i t until the death o f Duvall, a delivery ? It was manifestly not an ab- solute dehvery. The fact that he was directed to hold the deed, and not deliver it till the death of Duvall, renders it absolutely certain that the grantor did not intend that the deed should take effect until that time. This removes all doubt on that question. The deed di d n ot, therefore, oper a'te to give Mrs. S tone any immediate rights or interest in the premises. If she acquired any right, it was that the title should only vest in her at her father's death. Was this, then, a delivery as an escrow? Kent, Ch. J., in the case of Jackson v. Catlin, 2 Johns. (N. Y.) 248, 3 Am. Dec. 415, says: 'jA ^ dee d is delivered as an escrow when the delivery is conditional, th at • fMjt/^J^ i s^ w hen it is deli vered to a third person to keep until something b e ^ -/^ — done fay the grantee ; and it is of no force untij the condition be fu l- fill ed.'' Sheppard, in his Touchstone, p. 58, gives substantially the sTriie definition, except he does not limit the performance of the act to the grantee, which seems to us to be the more accurate rule. Now this deed was to be delivered on the death of Duvall. That was the ex- \ni*'^ Ch. 2) EXECUTION OF DEEDS ' 325 press condition upon which it was placed in the hands of the justice, and, a ccording to the authority of the case of Jackson v. Catlin, sup ra, it was deliver ed as an escrow, an d rniild not tak e fqll e ffect until th e t hing happened that was conditional to its deliver y; and Duvall not having died, the de ed has not yet vested the title in full, and can no t u ntil that event shall occur. Sheppard lays it down as the law, that "T he delivery is good^ Jor it is s aid, in this case, that if either of tlie parties to the deed die before , tiie" conditions be performed and the conditions be after performed , t hat the deed is good ; for there was traditio inchoata in the lifetime of the parties ; and postea consummata existens, by the performance of tjie conditions, it taketh its effect by the first delivery, without any ^6iMK-# -^^ new or second delivery ; and the second delivery is but the execution « -^ diiJt*^^^ and consummation of tlie first delivery." But in such a case, the de - ^ r l ivery only relates back to the first delivery so as to carry out the in- tk^Cl^ HSl -^ t ention of the grantor, and to vest the title. It would not give the /^XuJL Mich, iil), 31, 89 ^'. W. 55(i, bb? (iyOL!). See Loomis V. Loomis, supra, note 19. "A gr antor's deposit; of his deed with a third party, to be held by such third party until the grantor's death and then delivered to the grantee therein named, the grantor reserving no dominion or control over the deed during his lifetime, const itutes_,a valid delivery and vests an immediate estate in the grantee, sub- jecr Tp_a life estate in the g^rantor [ citing many cases]." Jviaxweli v. Harper, sFWaslT. "851, ;iod, yy Pac. 7o6, Vbs (1909). To same general effect are Rowley V. Bowyer, 75 N. J. Eq. 80, 84, 71 Atl. 398, 400 (1908). "All the cases cited hold that title passes either at or as of the date of the first delivery." Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, 9 L. R. A. (N. S.) 317 (1907), where the gran- tee was to support the grantor during his life. 326 ' DERIVATIVE TITLES (Part 2 lease of c ertain real estate situate in the city of New York kno wn as th e Von Hoffman Apartment House. The d eed ran to a daughter, Ros alie Tousey, subject to the life leas e. It was delivered by the grantor to_ a t hird person to be by him after her death delivered to the grant ee^ which was done and this appeal is concerned with the judgment dis- missing the complaint in so far as it attacks said deed. Such attack does not present here any question of fraud or undue influence, but ~> in volves the question whether the deed was valid and effective und er , t he circumstances of its delivery . The important findings on which the judgment dismissing the com- plaint is based and certain significant refusals to find are, in substance, as follows : Some time before her death, Margretta Todd, being the owner of the premises in question, e xecuted a deed of the same to her daught er Rosalie in consideration of natural love and affection, and deli vered t he same to one Lockwood . "with instructions to hold the same (ku-in g t he lifetime of the grantor * * * ^Lud upon or after the death of the said Margretta Todd, to d eliver the said deed o f the sa id premi ses t o her said daug^hter ." In accordance with these mstructions, com- munioated to him at the time of the execution of said deed, Lockwood "di d hold the said deed during the lifetime of said Margretta Todd and after her death deli vered the same to the said Rosalie To usey who d uly accepte d the said deed." The court refused to find that said deed was deposited with Lockwood by the grantor as her agent, or that she at all times retained control of the aforesaid deed (and lease) and ex- ercised over the said instruments the power to recall them. During the lifetime of the grantor, Lockwood informed the grantee tbat her mother "had executed and delivered to him a deed conveying the said premises to the said Rosalie Tousey to be delivered to her after the death of her said mother." O ctober 31, 1905, three days after th e death o f the grantor, Lockwood caused to be recorded in the prope r office t Tie deed in question, and notified one Hasting^s, as attorney fo r t he grantee, of such recording . The grantee at the time was traveling abroad, and after she returned to New York early in December she assumed the direction and management of said premises, expending various sums in re-decoration, repairs, etc., and she made, or caused to be made, a demand upon the Lin coln Trust Company, which ha d ta ken possession ot the property under circumstances hereafter to be r eferred to. that the management and control of the premises be, re- linn iiished to her "as the said property belonged to her under a deed executed" as hereinbefore stated, and t hereafter possession was sur - r endered to her, which she retained until her death, when her titl e p assed to others who are defendants here. I fail to see any break in this chain of findings which prevents them from being sufficient in connection with other more formal ones to draw after them the conclusions of law and judgment which have been made to the effect tha t said deed vested in the grantee a title wh ich Ch.2) EXECUTION OF DEEDS 327 w as valid and effective as against the attempt of the appellants to s ev. i t aside . ~ ' It is urged, however, as against the force of the findings above sum- marized that other findings were made which are so inconsistent there- with as to lead to a different judgment than that which was rendered. Some of these findings are designated in the decision as findings of fact and some of them which are described as conclusions of law are nevertheless asserted by the appellants to be findings of fact. They are in substance as follows : T hat at the time of her death and for many years prior thereto M ar- gr etta Todd was the oivner in fee simple of the property in questio n ; that she "retained the act ive and undisputed con trol, p ossession, m an- agement a nd ownership of thf^ g^irl prpmkpQ Hnwn to tjif dnt^ o^ ^""^ deatl^;" that on divers occasions subsequent to the execution of the said deed to her daughter said Margretta Todd "had shown much love and affection for her said daughter * * * ^j^^^ had expressed an in - te ntion of ex ecuting a deed of the said premises to the said Rosalie To u- se}^" (stated as conclusions of law) that the deed was a valid convey- ance "to take effect on the death of said Margretta Todd ;" that after the death of the said grantor the said Lockwood made a valid delivery of the deed of said premises to Rosalie Tousey and the said deed was duly accepted by her "and the fee simple of said premises vested in Rosalie Tousey from the time of the death of said Margretta Toddon the 2Sth day of October, 1905, nnd_th^ snid Roprilip Tnngpy |ip ^nd is ent itled, I'H the. rp ^}\^ anr] profit" thrrpfrnm j xom said 28tli day of Q cto- berjJ905." 'On tliesfe so-called findings of fact the appellants build up the argu- ment tha t in order to be effective the deed delivered to Lockwo od \ ^ithermust have taken effect presen tly when delivered to him or e lse I t akerT etlect when delivered to the grantee after the death of tli e / e^rantor must have related back to ^^""^ tii-np f.f itc A(A\y ery to Lock - \ wood ; that on either theory the grantor could not retain ownership of I the premises down to the time of her death, and, therefore, the findings 1 which have been last quoted are in conflict with both theories and 1 "rn mpel the ronr1ii':;inn that the A eeA wnc in<^Piq(-]^r | to take effect no t J a s a presen t ronve\'-an ce but n ^i n t''^tnmrntnr3' ji.ispositio£ i-" I'he hrst^!r\v^r*Tothis argument is that the findings which appel- lants rely upon and which they claim to be in conflict with those first quoted from, if they are in any conflict, involve statements of law rath- er than of fact. I suppose that the question as of what time tHeTTtleN would pass from grantor to grantee and at what date the fee simple \ would vest in the latter upon performance of the various acts set forth i in the findings naturally must b e one of law . ~^ In the second place, I do not think there is anything in the findings or conclusions as a whole which is intended tO' be or really is at vari- ance with the judgment which was rendered or which destroys the deed as a valid conveyance. Take as an illustration the findings that 328 DERIVATIVE TITLES (Part 2 the deed was to take effect on the death of the grantor and that the "fee simple of said premises vested in Rosahe Tousey * * * from the time of the death of said Margretta Todd," and that at the time of her death said grantor was the owner in fee simple of the property, and interpreted in the light of their surroundings they are substantially accurate. The conclusion that tlie title vested in the gran- tee from the time of the death of her grantor was part of a conclusion of law made for the purpose of fixing the time from which the grantee should receive the rents and profits, and I do not understand that there is any dispute tliat she was properly limited in her right to these to the period after her grantor's death. The other conclusions that the deed was to take effect upon tlie death of the grantor and that the latter died seized of the premises are in accordance with the fact of the final delivery of the deed and the law as established by well-considered cases. Hathaway v. Payne, 34 N. Y. 92, 113, considered a deed like the present one, which was delivered by the grantor to a third party to be delivered to the grantee after the former's death. Chief Judge Denio wrote for a majority of the court as follows : "They (the authorities) do * * * prove that a deed may be delivered to a third person, as this was, with instructions to be finally delivered to the grantee after the death of the grantor. In such a case, the weight of authority is , that no title passes until the final delivery, and that then, and the re- after, the title IS, by relation, deemed to have vested as of the time o f t he first delivery to the third person . If it were an original question, I should suppose that such a transaction was of a testamentary character. * * * But the cases establish the rule as I have stated, and they should not now be disturbe d." The same doctrine was laid down in Rosseau v. Bleau, 131 N. Y. 177, 30 N. E. 52, 27 Am. St. Rep. 578. It was there held that an action might not be maintained by the representatives of a deceased person to set aside as fraudulent against creditors a deed not delivered until after the latter's death for the reason that such a deed did not become operative during life and that, therefore, tlie grantor died so seized that the liens of creditors attached under the statutes relating to real estate of deceased persons. In this connection appellants' counsel especially relies on the cases of Rochester Sav. Bank v. Bailey, 34 Misc. Rep. 247, 69 N. Y. Supp. 163, affirmed, 70 App. Div. 622, 75 N. Y. S'upp. 1131 ; Burnham v. Burn- ham, 58 Misc. Rep. 385, 111 N. Y. Supp. 252, affirmed, 132 App. Div. 937, 116 N. Y. Supp. 1132; Id., 199 N. Y. 592, 93 N. E. 1117. In each of these cases it expressly appeared that the grantor re- tained control of the deed, a condition which not only does not affirma- tively appear in this case, but which is negatived by an express refusal to find to that effect. It is further urged that as evidenced by certain findings, the daugh- ter elected to reject the deed. These findings are to the effect that on Ch. 2) EXECUTION OF DEEDS 329 learning of the death of her mother she cabled to certain representatives to look after her interests, and that those representatives, although knowing of the so-called lease and deed and also of the will, insti- tuted proceedings to have the Lincoln Trust Company appointed tem- porary administrator and to have it take possession of all of the estate of the decedent, including the real estate in question, which it did. _I dc Lnot think under the circumstances that this amounted to any bindin g e lection to reject the deed . The directions given by the daughter were necessarily g eneral a nd i ncomplete a nd in my opinion did not fairly con- fer upon her representatives the authority to reject the deed. Immedir at^elyupon her return she elected to accept the deed and take title tmdfr iL^ Under the circumstances I think the jud gment should be affir med with costs. Judgment affirmed. / » SMILEY V. SMILEY. (Supreme Court of Indiana, 18S8. 114 Ind. 258, 16 N. E. 585.) Elliott^. Ja cob Smiley was married four times. By his first wife, Ca^^Ptne, he had f our-fr tn kl ren. Joseph J.. Jonathan H., James and Elizabeth. By his^econePmfe he had n o childre n. In 1870 he married his third wi(^-Mary. On the 26th day of September, 1873, he i>£came the ownfer of the land in controversy. On that day he an d h fe^ife executed five deeds^ one to his daughter. Elizabeth, one to hi s s on Jonathan H., one to Joseph and Jonathan, one to Toseph. and on e to t he heirs of Tames Smiley . At that time James Smiley was living and had four children, Jacob M., Sarah, William and Elizabeth. Thes e dee ds embraced part, but not all, of the land owned by Jacob Smile y iiL.1 873! On the 25th day of May, 1875, he executedj^ . yq\L by which he devised to. his wife, Mary, during her life or widowhood, part of the land — that in section 11. Item 5th of his will reads as follows: "I have heretofore executed deeds to all my real estate, not above named, to my children and grandchildren for the lands which I wish them each to have, and r\ n\v p Lnre the rrij the s aid dee ds, in the hands of. m y exe cutor hereinafter named ; which deeds I wish my said execu tor at m y^ death to deliver to the parties severally named therein, and to whom said deeds are executed. In the 6th item of the will, Joseph J- I » >v»^v^ j( Smiley was nominated executor, T^^^ Q/^ A few days after the execution of the will, Jacob Smiley placed the ^V *^ dee^s in tiie h ands o f Jo seph T. S ni ijey, and directed him to retain " them untiraJte'r he, |aco b Smiley, should die, then to deliver them . On the^'54th da}nyf"September, 1875, tlie third wife, Mary, died . On the 6th day of the following November, Jacob Smiley, on being ad- yise d_that the deed to the heirs of James S'miley was no t yalid, exerirU. e da deed _tflJais_children, (^arah, Ja cob M., WilHam and E lizabeth, Vnd placed them inthe^hands'^ of Joseph~7V Smiley, and'Vrepeated the'in- 330 DERIVATIVE TITLES (Part 2 structions formerly given him. On the same4ay he executed t his codi - cil tohis willj "Whereas, my beloved wife^eparted this life on the 24th day of September, 1875, I now wish the propertv bequeathed t o h er in my will equally divided among all my chij dren." On the 18th day of December, 1875, Jac ob Smi ley married the appellee, Agnes Smiley. On the 15th day of March, li5//, he died, leavmg no~children by his last marriage. O n that day Joseph T. Smiley delivered the d^ eds pl aced in his hands to the respective grantees therein named. _ Ho c onsideration was paid by any of the grantee s. The appellee was ad- vised prior to her marriage that the only estate which Jacob Smiley owned, or in which she would have any claim, was two parcels in sec- tion eleven. The j udgment of the court gave the plaintiff an estate for life in "a ll the land, as well that part described in the deeds placed in the han ds o f Joseph J. Smiley as that of which no conveyance was ma de. /^ The question whe ther th p pppfUpp \ % entitled to a life-estate_ ia the , l and embraced in the deeds placed in the hands of Joseph 1. Smil ev. depends upon the time those deeds took effec t. If they took effect at the time of their conditional delivery to him, then, it is clear, she has no interest in the lands, because her husband was not seized of them at any time during coverture. The case, therefore, turns upon the effec t of that conditional delivery . If that delivery was sufficient to vest title in the grantees as of that date, then the appellee can have no claim in the land as against them. In deciding this question we attach importance to the fact that the appellee was advised before marriage what land Jacob Smiley owned and in which she would acquire an interest. She was, at least, put upon inquiry, and if she failed to make inquiry she is not in a situation to aver that she had no notice. Doubtless, marriage is a valid con- sideration, and if Mrs. Smiley had not been informed as to what lands her husband owned, a dift'erent question would confront us. We do not, however, decide that the deeds would not have been valid even if she had not been put upon inquiry, for that is not now necessary. We d o decide that, as she had notice prior to marriage what land he r husban d then owned, she can not successfully assert her marital righ ts i n the land embraced in the deeds placed in the hands of . Joseph J . Smiley. " There was here a cojiilijioj ^l.ilelivejx. f qr the deeds were place d in th e hands of Joseph J. Smiley with explicit instructions to deliver th.£ tP t o the grantees upon the happening of a designated event, that of th e d eath of the grantor, in this particular the case differs from that of Jones V. Loveless, 99' Ind. 317. It differs, also, from that case in an- other particular, and that is this : The party who here assails the deed s had notice that the grantor did n ot own the lands einbraced in th em. Tills case is, m all material respects, like Owen v. Williams, 114 Ind. 179, 15 N. E. 678, and the principle there asserted applies to it with great force. Our conclusion is well sustained by authority. Hockett Ch. 2) EXECUTION OF DEEDS 331 V. Jones, 70 Ind. 227; Crooks v. Crooks, 34 Ohio St. 610; Hatch v. Hatch, 9 Mass. 307, 6 Am. Dec. 67 ; Stephens v. Rinehart, 72 Pa. 434; Morse v. Slason, 13 Vt. 296; Tooley v. Dibble, 2 Hill (N. Y.) 641. The trial court erred in its conclusions of law upon the facts stated in the finding. Tlie appellee has filed a motion to dismiss the appeal as to all of the appellants except William Smiley, and, upon the admissions made in the answer to this motion, the appeal must be dismissed as to all the appellants, except the one named. I t is, therefore, adjuds^ed that, as to all the appellants except William Smiley, the appeal is dismisse d, and that, as to him, the judgment is reversed, with instructions to restate the conclusions of law, and enter judgment in his favor.^^ RATHMELL v. SHIREY. (Supreme Court of Ohio, 1890. 60 Ohio St. 1S7, 53 N. E. 1098.) The cause was tried in the circuit court upon appeal from the court * -j 'g j of common pleas. The pl aintiff in error prayed for a decree of th e ^'*^*-««'''**"fi^ c ourt setting aside a deed for one hundred acres of land made by hi s rdjLx^^^r''* t estator tojthe defendant , J[^i^omas^_g^l]2men , in trust for the d efendant^'"'^ W illiam C. Shirey and others, and an order for its sale for the payment of debts of his testator, alleging in his petition and amendments thereto tiie ins ufficiency of the assets of the testator to pay his debts ; that the instrument in question was signed by the testator contemporane- ously with the execution of his will and upon no consideration except that expressed, to-wit, l ove and affection for his son William and on e dollar: that said instrument was not then, nor ever in the lifetime o f t he testator delivered to said tr u stee^ but was delivered as an escrow t o one Zeno C. Payne to be bv him placed on record and delivered J o sa id trustee after the de a th of sajd testator, the testator remaining in possession and control of the premises and paying taxes thereon until his death, a portion of his debts being contracted after the signing of said instrument and c redit being extended to him on account of hi s a ppar^ nr^ owiier ship of said premises, and that said deed delivered to said trustee after the death of the plaintiff's testator was fraudulently made and that it hinders, delays and defrauds his creditors. The an - s wer admitted jlie insufficiency of the assets of the testator's estate to pay his d ebts. On' denial by the defendants of the plaintiff's allegations as to the fraudulent character and effect of tlie instrument the cause was tried in die circuit court where upon request the conclusions of fact and law were separately stated as follows : On the fourth day of December, 1891, Lewis Shirey, then in full 21 Vorheis v.- Kitch, 8 Phila. 554 (1871), ace, the deed there beirrg~«ft,.gscrow. See Ladd v. Ladd, 14 Vt. 185 (1842), where the widow was held entitle dower, the grantor having been deemed to have died seised. "^^•^^ 532 DERIVATIVE TITLES (Part \ji A l ife, was seized of 160 acres of land in Hamilton township, Fra nklin county. Ohio, upon 60 acres of which there was a mortgage incum- brance of $1,500; that on said December 4, 1891, said Shirey executed /a t rust deed toThomas Rathmell for the remaining 100 acres ther eof ) f or the use of his son, William C. Shirey, for life,.remamder to the ch il- / dren of William C. Shirey . That on the same day he ex ecuted his_w ill ' disposing of 60 acres, the remainder of his land ; the s ame being charg - ed with the mortgage incumbrance aforesaid to his daughter, Marg aret Thompson,^ lliat at the time of the execution of said deed, to-wit De- cember 4, 1891, he delivered the same to one Zeno C. Payne, his attor- ney, who made the following indorsement thereon in said Shirey's pres- ence, to-wit: " Deposited with me in escrow to be placed on record a t t he death of the grantor and delivered to the grantee t herein named. Z. C. Payne ." At the time of said endorsement said Shirey instructed said Payne t o place this deed on record at the time of his death a nd t d eliver the same to the grantee therein named. That at the time of the execution of said deed and will in addition to the m ortgage incum- brance of $1,500, Shirey was indebted to divers persons in the sum of $ 500, which, in addition to the $1,500 mortgage incumbrance, remained unpaid at the time of his death, which occurred in February in 1895. S hirey remained in possession and co ntr ol of said realty, and pai d the taxes ther eon during hi s life time, and contracted subseque ntly to t_h e executiot Tof said deed other debts to the amount of about S1.j25. said incTeHtedness of $1,32d remaining unpaid at the time of his death. S hirey died February, in 1895, le avi ng defendant, Crissie Shirey, h is w idow, and said son and daughter surviving him . Said trust deed wa s , immediately upon Shirey's death, placed on record in the recorder's office of Franklin county, Ohio, and th en handed to Thomas Rathm ell, t he grantee therein named, who,_ immediately upon Shirey's death a n d i n execution of the trust created by said trust deed, entered into a n d t ook possession as such trustee of said 100 acres of land, a nd is now and has been continuously since the death of said Lewis Shirey in pos- session thereof. T hat said 60 acres of land devised to Margar et Thomp'^on by qairl wijf have been sold by p laintiff a nd the proceeds of s aid sale are not more than sufficient to pay said mortgage indeb tpflnf'c;g o f $1,500, with interest, widow's dower in said 60 acres and costs of sale. No provision for the w idow was m ade eit her in the deedjii trust nrjri thq A^ i jll^ ^t tTTeTTiiiT'Trr the pypn^^ dperTthe grantor, Shirey, did not retain property clearly and beyond doubt sufficient to pay his existing indebtedness; and o f which indebtednes s about $700 (b eingj-insecured debts) is and remains_ unpaid, and that umesT^gaf^T OO acreso f land or some part the reof, be sold, the general creditors of sai d Lewis Shirey will receive notK mgoiithe ir clairn. as cost of administra- tion, costs of last sickness and funeraland the mortgage indebtedness of $1,500, with interest, and widow's dower and allowance, having consumed the proceeds of said 60 acres of land and all the personal estate of said Lewis Shirey. That s aid Lewis Shirey injthe_£ 2^££iition Ch. 2) EXECUTION OF DEEDS 333 of s aid deed acted in perfect good faith and without any intention al fraud, ''fhat said Lewis Shirey when contracting said debts subse- quent to the execution of said trust deed was guilty of no misrepresen- tations whatever, c redit having been extended to him without an y i nquiry or investigati on by the persons so lend mg him credit as t o how much land or property he then owned , said creditors having knowl- edge that said Shirey was in the possession and control of 160 acres of land and without knowledge that he had made said trust deed. Up- on the foregoing facts the court finds the law to be as follows, to-wit : First — T hat said tr ust deed passed the title to said grantee, Thom as Rathmell, trustee, as ot tlie'^te of its first delivery, to-wit. Decem ber 4, 1891, subject to the dower estate of Crissie Shirey. Second — There was no intentional fraud in the execution and del iv- ery of said deed, and that the same is valid as to the debts ot .Lewis S hirey created after nprember 4, 1RQ1. / ^C^Z^ t^ £^COt<4Zi.^u^ a^ ^mJ^ Third — That said conveyance is void as against the debts existing at ^ ^ t he time of its execution . Fourth — That plai ntiff is entitled to sell so much of said 100 acres o f land as may be necessary to pay the outstanding debts of Le wis S hirey existing December 4. 1891. with the accrued interest there on. To each and all of which findings of fact so made by the court as afore- said, and each and every conclusion of law thereon the plaintiff excepts. A bill of exceptions was taken embodying all of the evidence, and this petition in error pr ays for the reversal of the judgment of the cir cuit court because its findings of fact are not supported by the evidence and b ecause its conclusions of law were not justified by the fqcts found . Shauck, J. The case presented permits us to assume, without de- ciding, that in view of the facts found by the circuit court t here was s uch a delivery of the deed as w ould give it effect as against the heir s at law of the grantors, and that as to them the deed would, by relatio n, t ake effect at the date when the instrument was delivered as an escrow . We have to determine whether it was effective to pass the' title to the grantee discharged_of d ebts of tl i e granj or^contracted between Decem- \^^'' - ber, 1891, when the instrument was delivered as an escrow and Febru- ^^^^--'Tii) / ary, 1895, when upon his death it was delivered to the grantee, as was ^^ ^\yi/0^ held by the circuit court. ^^^^'^ I Del ivery being essential to the efficacy of a deed, it is obvi ous tha t t he title does not actually pass u ntil that whi ch was an escrow become s a deed by virtue of its delivery as such, or at least, untilthe satis fac- ti on of the conditions prescribed for its fi nal delivery. Accordingly the g eneral rule is that the title does no t pass until the second delivery, or u rftfrthe conditions prescribed therefor are satisfied . Itwould not be practicable to cite all the cases in which the general rule is so stated. Many of them are collected by Mr. Devlin in a note to section 328 of his work on deeds. To this rule there is a well-recognized exception. The rule and the exception are thus stated by Chancellor Kent:' 22^"" orally an escrow takes eft'ect from the second delivery and is to be con- yit^ e *^jiju^ . 334 DERIVATIVE TITLES (Part 2 s idered as the deed of the party from that time: but this geppt-f^l riil p d oes not apply when justi ce requires a resort to fiction . The relation back to the first delivery, so as to give the deed effect from that time, is al lowed in cases of necessity, to avoid injury to the operation of t he d eed from events happening- between the first and second d^ jj^ery. * JJut if the fiction be not required for any such purpose, it is not admitted and the deed operates according to the truth of the case, from the second delivery. It is a general principle of law t hat in a ll c ases where it becomes necessary for the purposes of justice that t he t rue time when any legal proceeding took place should be ascertained . t he fiction of law introduced for the sake of justice is not to pre vail a gainst the f^ft. " 4 Com. 454. Whatever terms may be employed in stating the exception, the_xd.a- ti on back to the first delivery is always to acco mplish, and nev er to de - f eat, justice. ^ Bearing in mind the purpose of this exception and the fact that the deed before us was without any subs tan tial j:onsideration, it is q uite apparent that the conclusion of the circuit courTthat the relation back should be allowedjto cut ofi^ the claims of those who gav e credit to the testator between the first and second deliveries, and with - out knowledge of the instrument, is erroneous. That conclusion de- rives no support from Crooks v. Crooks, 34 Ohio St. 610, or Ball v. Foreman, Z7 Ohio St. 132, where the title was held to pass as of the date of the first delivery for purposes clearly within the exception as ■above stated. The jud gment of the circuit court will be so modified as to order the plaintiff in error to sell so much of the land in co ntroversy as may be necessary for the payment of all the debts of the testator . Judgn\ent accordingly.^^ WHYDDON'S CASE. (Court of Comiuou Pleas, 1596. Cro. Eliz. 520.) Annuity. The defendant saith, that he d elivered the deed of annui ty t o 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 per- formed. The plaintiff demurred; and, without argument, adjudged 22 Brown v. x\usten, 35 Barb. 3-11 (1861), contra. In Eanken v. Donovan, 46 App. Uiv. 225, 61 N. Y. Supp. 542 (1899), 1G6 N. Y. 626, GO N. P]. 1119 (1901), the grantor, after making a deed and putting same into the custody of a third party, to be delivered to the grantee at death of grantor, made a will purporting to devise the same property to another. Was the will effective as to that property? A woman made a deed of certain lands to her son, and left the deed with a third party to be handed to the grantee on her death. Later she made a mort- gage of the same lands to secure a loan. After the mother's death the mort- gagee sought to foreclose the mortgage. The trial court excluded the evidence offered by the son to prove the execution of the deed to him and that the mort- gagee had notice of said deed. Was the court right V See Wittenbroek v. Cass, 110 Cal. 1, 42 Pac. 300 (1S95). Ch. 2) EXECUTION OP DEEDS 335 for the plaintiff: fo r the delivery of a deed cannot be averred to he to 7^ th e party himself as an escrow . Vide 19 Hen. VIII, pi. 8, 29 Hen. VIII, and Morice's Case, Dyer, 34, b, 35, a, in margin. ^l^'iiu^.XT HAWKSLAND v. GATCHEL. (Court of Queen's Bench, 1601. Cro. Eliz. S35.) De bt upon an oblia"at ion. The defend ant pleads that he delive red that obligation to the plaint iff, as an escrow to be his deed, if he per- fo rmed s uch a condition , viz., to permit him to enjoy such corn; and al ledgeth, that the con dition was not performed, and so not his deed. And hereupon the plaintiff' demurs. Clerk, for the plaintiff, argued, that one cannot deliver a deed to the party himself, to be an escrow; and to that purpose cited the 19 Hen. VIII, pi, 43 Edw. II, pi, 28, where it is said, that this condition cannot be averred upon the delivery to the party himself, in avoidance of the deed, without shewing a deed thereof. Gawdy. There is not any difference, where it is delivered to the party himself as an escrow, and where to a stranger; and the case of 19 Hen. VIII, is so; because the deed was delivered to the party him- self first, as his deed upon condition, &c., in which case the deed is ab- solute, and takes eft'ect as his deed upon the first delivery ; and it can- not be avoided by the condition. But when it is first delivered as- an e scrow, although it be to the party himself, it is clear that it is not his d eed until it be performed " And so is 29 Hen. Vill, Dyer, 34, in Mor- ris and Leigh's Case. Poi'HAM accord. ; for if, upon the delivery, the words spoken by the obligor purport that it shall not be his deed, it is clear it is not : as where one causeth an obligation to be written and sealed in my name, and brings it unto me, and prays that I would deliver it as my deed, and I say, " Do you such a thing, and take it as my deed^ otherwise no t ;" i t is clear, that it is not my deed until the thing be performed . So if the obligor saith, "Take it to you, I will not deliver it as my deed;" it is not his deed. Wherefore in the principal case, when the obliga- tion is delivered as an escrow, by express words, it is not possible that it should be his deed, for the words are not sufficient to make it so until the condition be performed. But if it be once delivered as hi s dee d, it rannnt afterwards be defeated by a condition, if the condition be not in writing ; bu t here the condition is precedent, so as it was n ot his deed until it were performed, and therefore a conditional deliv ery may be averred without writing . Wherefore, &c. , Fenner to the same intent: for although dift'erence hath been taken, that a deed shall not be delivered to the party himself as an escrow, but to a stranger; and the reason hath been alleged, because when it is delivered to the party himself, there cannot be a second delivery, 336 DERIVATIVE TITLES (Part 2 whereupon the writing should take his effect as a deed ; that seemeth to be no difference : for when it is deHv ered to the party as an escro w, t he words are not suf^ent to make it to be his deed, until the con di- t ion be performed. Wherefore, &c. And of that opinion was ClExch. Wherefore it was a djudged fo r tlie defendant. Vide Cro. Eliz. 520, Whyddon's Case. WILLIAMS V. GREEN. (Court of Coinuion Pleas, 1G02. Cro. Eliz. SS4.) Debt upon a bill. The defendant pleads, t hat the said bill was de liv- e red to the p laintiff as a schedule, upon condition, that if tlie plaint iff d elivered unto the defendant an horse upon such a rlay^ tViat y\-]f>n \f s hould be his dee d, otherwise no t : and that the plaintiff had not deliver- ed the said horse unto him ; and so non est factum. — And it was there- upon demurred : and resolved by the whole Court to be no plea ; for. a de ed cannot be delivered to the party himself as an escrow, because the n a bare averment without any writing would make void every dee d. Wherefore it was adjudged for the plaintiff. See Whyddon's Case, Cro. Eliz. 520. LONDON FREEHOLD & LEASEHOLD PROPERTY CO. v. SUFFIELD. (Chancery Division. [1S97] 2 Ch. 60S.) d This was an ac tion by the plaintiffs, who were mortgagors, agai nst , t he mortgagees, to set aside a mortgage deed for~ i9000.. and arose out of the frauds of one Llewellyn Malcolm Wynne, a solicitor, who had since absconded. The facts, so far as it is necessary to state them for the purposes of the present report, were as follows. Lle wellvn IMalcolm Wynne w as a soli citor carrying on business in London in partnership with his broth - e r. Campbell Mountague Edward Wynne, under the firm of "Wynne & Son." L. M. Wynne was on e of the four trustees "of the marriage settle - ment of Sir Frederick Leopold Arthur^and the firm acted as solici tors t o the trust He was also the ma naging director of the plaint iffs, the London Freehold and Leasehold Property Company, Limited, incorpo- rated in 1883. I n ]May, 1886, W yr me & Son, who carried on busin ess as bankers as well as solicitors, were appointed managers and banke rs ol the company at a commission . \Vynne & Son were also '^n]^^ri tnr<; to the company; Wynne & Son's office was the office of the company, and Wynne & Son's conveyancing; clerk. Tyler, was the secretary to t he compan y. The company's accounts were kept by L. M. Wynne, / ' Ch. 2) EXECUTION OF DEEDS 337 whose duty it was, as acting banker and manager, to pay the company's money received by him or his firm into the bank of "Wynne & Son." C hild & Co. were Wynne & Son's bankers, and in May, 1892. Wynn e & Son, as the soUcitors to the trustees of Arthur's settlement, receive d a sum of £9000., part of the trust funds, and paid it intn Child's hank to the credit of their own account, pending reinvestment . It appeared that one of the trustees, Mr. Somerset, knew that Wynne & Son had the money in their hands for reinvestment. Earl y in 1893 the directors of the plaintiff companv, acting on L. M . Wynne's advice, proposed to take steps for g'raduallv paying off certain mortgages on pro pe rties of the company, ' bearing interest at 5 per cent, by raising-a^ ^m of £9000.. at a lower rate of intere st. The mode oi raising tlm sumand all the details of the arrangements for the pur- pose they left to Wynne, in whom the directors placed complete confi- dence, he telling the board that he had clients who would lend the money. I n June, 1893, a mortgage was p repared by counsel on \\[y nne & Son's instructions, for £90 00.,~to the Arthur trustees upon the se- curity o f c ertain leasehold properties of the companv consisting of a block of warehouses calle d "Victoria Warehouses," and two houses in Bury Street, London, being' properties comprised in the existing mort- gages. On June 19, Messrs. Worley and Ryder, t wo of the company's d i- re ctors, were infor me d^ by Wynne & Son that a meeting of the boar d would be held on the 22d. A meeting of the directors was accordingly held on June 22, 1893. An agenda paper for the meeting was prepared by Tyler, and thi s_paper stated that part of the business would be_ to s eal the £9000. mortgage, and another mortgag e. The directors present on the 22d were Wynne, Worley. and Ryder. Tyler, the secretary, was also present. The mortgage for £9000., engrossed for execution, but with date (except the year) and days for payment left in blank, was pr oduced and discussed, and a statement of the properties compris ed i n the mortgages which were to be paid off was also produced. Th e mortgage reserved mterest at 5Vj. per cent., reducible to 4^ on pun c- t ual paymen t. After explanations by Wynne, it was "resolved that the seal be affixed to the mortgage for £9000. on Victoria Warehouses and Bury Street," and to the other mortgage, and both mortgages wer e t hereupon sealed with the company's seal . Both Worley and Ryder signed the i9000. mortgage as directors. Tyler also signed it as sec- retary. No cash then passed, and the directors were well aware of th at fact : nor, as a matter of fact, did the £9000. expressed to be advanced to the comp an y ever find its way into the company's coffers at al l. The blanks in the mortgage were not filled up at the meeting, but the da te of. the mortgage, December 29, 1893. was subsequently filled irL by t he law s tati oner when it was sent to be stamped . The blanks left f or t he day s, of payment we re never filled in. The document thus sealed was then given to or left with Wynne, who, on June 28, 1893, wrote to Aig.Prop.— 22 Js^if>^ 338 DERIVATIVE TITLES (Part 2 Colonel Lloyd, one of the Arthur trustees, that the £9000. had been advanced on that security. On March 2, 1895. L. M. Wvnne absconded, and on March 9 he w as a djudicated bankrup t. On the 16th his brother was also adjudicat ed bankrupt, and on tlie same day a trustee was appointed in the bankrup t- cies of t he property of the firm and of the separate property of jU _M. Wynne. '' After the failure of the firm the mortgage of December 29, 1893, was found jn a "temporary box" belonging to them in which they k ept miscellaneous deeds likely to be wanted for temporary purpo ses or for sta mjjjng. The mortgage h ad not been_e nt£i£dJn the company's register of mortgages, n or was it re^ jalgJ^d in the Middlesex Registry until May 22, 1897 , the day after Kekewich, J., gave judgment in the present action. !AI)0ut the same time, and with a view to such regis- tration, one of the Arthur trustees executed the mortgage. The result of inquiries instituted into Wynne & Son's affairs aftef their failure s hewed that on June 1, 1893, they had 'transferred £9 000. from their account with the trustees of Arthur's settlement to the cred it of the plaintiff company ; the following credit entry, headed "The Lon- don Freehold and Leasehold Property Company Mortgage Account" being found in Wynne & Son's ledger: "By transferred from Sir F. L. Arthur's settlement trustees, amount, advanced on mortgage at 4^2 per cent., £9000." As already stated, the £9000. never found its w ay i n cash to the conipany at all, nor was it ever applied in discharge o f tlTe_existino- mortga ges, the entry, therefore, being, as the company £ qii- tended, fictitiou s a nd fmndnlent . It appeared that Tyler, the clerk to Wynne & Son and secretary to the company, had access to the ledger ; but he, and Worley and Ryder also, in giving their evidence in the pres- ent action, said they knew nothing about any of the entries in Wynne & Son's books, and never saw or knew of the particular entry in ques- tion. On March 21, 18 96, t he plaintiff compan y brough t this action aga inst t he defendants, the Arthur trustees (includin g 1^. M. Wvnne). and the trustee in bankruptcy, claiming a declaration that the mortgage of December 29, 1893, was not a valid and effectual security and was not binding on the plaintiffs, and that the same might, if and so far as might be necessary, be set aside and cancelled ; delivery-up of the title- deeds relating to the mortgage; and injunction against enforcing the security; and, in case the Court should be of opinion that the mort- gage was valid and effectual, a declaration that the plaintiffs were enti- tled to prove for the £9000. as money had and received by L. M. Wynne as their solicitor, either against the joint estate' of the firm of Wynne & Son, or against the separate estate of L. M. Wynne, as they might elect; and all necessary accounts and inquiries. Defences were delivered by all the defendants except Wynne, who, it appeared, had by an order made by North, J., on April 25, 1896 — that is, since the issue of the writ — been discharged from the trusts of the Arthur set- tlement. Ch. 2) EXECUTION OF DEEDS 339 The action came on for trial with witnesses before Kekewich, J., on May 20, 1897. The witnesses examined were Messrs. Worley and Ryder, two of the directors of the plaintiff company, Mr. Tyler, the late secretary of the company, Mr. C. M. E. Wynne, and Mr. Dalgleish, an accountant who had been auditor of the company, and was its present secretary, having been appointed to that offxe in place of Tyler shortly after Wynne & Son's failure. The effect of their evidence sufficiently appears, for the purpose of this report, from the judgments of Kekewich, J., and the Court of Appeal. Oct. 30. The judgment of the Court (LindlEy, M. R., and Lord Luni.ovv and Chitty, L. JJ.) was delivered by Li.vdlKy, M. R.^* This is an appeal by the plaintiffs from a deci- sion of Kekewich, J., refusing to set aside a mortgage executed by them for securing £9000. to Lord Suffield and others, who were the trustees of a settlement called Arthur's settlement. [His Lordship then reviewed the facts of the case to the effect above stated, obs erving that the relation of Wynne & Son to the plai n- t iff" company was an all-miportant element in the case ; that as bankers and managers they kept the company's accounts, it being their duty as managers to pay the company's money received by them as man- agers into their bank ; th at, moreover, it would be in accordance with t he ordinary course of business for a banker, w'ho had to pay mon£. v for one customer to another, to effect such payment by book entries , that is. by debiting one customer and crediting another in their respec- tive accounts, it not being necessary that any cash should actually pa ss from the one customer to the other : also that it was clear from the evidence that the dir ectors of the plaintiff company left all the ac- c ounts to Wynne & Son, and never tr oubl ed themselves about a ny books except the minute-books and the compa ny's pass-book \vit R Wynne X^ Snn : and that the plamtitts had tailed to prove that the credit entry of June 1, 1893, was fictitious and fraudulent. His Lord- ship, after referring to the evidence as to the preparation of the mort- gage, its production at the meeting of the company's directors on June 22, 1893, and its sealing with the company's seal, proceeded :] T lie document thus sealed was given to or left with Wynne : b u t in what capacity is by no means clear. Worley, Ryder, and Tyler have all given evidence as to what took place when the £9000. mortgage was sealed, and it is co ntended bv counsel for the plaintiffs that th e (tA. A 'j EXECUTION OF DEEDS jr\ \ * EVERTS V. AGNES '^' (Supreme Court of Wisconsin, 1S55. 4 Wis. 343, Everts made a d eed of the premi ses in controversy and deposited same with Zettler witli instruct ions to deHver it to Agnes, the grante e, u pon Agnes making certain notes and mortgages. Without having p erformed the c ondition Agnes secured possession of the deed aiiH a fter having same recorded conveyed the premises by deed to Swift . The action was by Everts against Agnes and Swift to set asid e and cancel these conveyances. Swi ft claimed to have taken as a bona fide p urchaser for value . The trial court dismissed the bill as to Swif t, and required Agnes specifically to perform his part of the contract with Everts or show cause, etc. Complainant appealed.-* By the Court, Smith, J. It is hardly possible to dispose of this case without recapitulating some, and perhaps most of the material allega- tions and facts involved therein; yet with the statement of the case which will precede the conclusions to which we have here arrived, and which will fully appear in the report of the case, it is only necessary to recur to them incidentally as the discussion of the principles involved, and of the points argued, shall seem to require. On the 31st day of May, A. D. 1851, a written memorandu m, very informal and incomplete, was entered into between the complainant Everts, and the defendant Every Agnes, for the sale of the premises described in the complainant's bill of complaint. Whether or not that written memorandum would be sufficiently definite and certain to au- thorize or enable a court of equity to decree a specific performance thereof is not absolutely necessary to inquire. It is, however, wort hy o f remark, that from that memorandum alone, it would be difficult to s ettle definitely the rights of the parties therejo . It is sufficient for the purposes of this case to say, ^ jiat it conveyed no title by FJ^ verl;s , no r djd Ag n es obtain any title thereby ; at most an equitable interest in the l and, upon the performance of thf rnnfHtinn<; or stipulations therein contained, on his part to be performed , and that he had, and could have had, no legal rights conveyed by Everts in conformity with the memo- randum or otherwise, whatever his equitable rights may have been. It is apparent th at the defen dant Swift did not purchase any equitable r^ht or title assuch, which Agnes may have had by virtue ot the co n- tract ; but whatever he did purchase, was such interest, title or estate as Agnes had in the premises, by virtue of his record or paper title under the deed of Everts to Agnes , made and recorded as set forth in tne pleadings^ It is not necessary, therefore, to inquire what would have been the equitable rights of the defendant Swift, had the interest of Agnes de- rived by virtue of tlie written memorandum or contract before men- 29 Tlds statement is substituted for the one in the report. 348 DERIVATIVE TITLES (Part 2 tioned, been assigned to him, and had he been the purchaser under the same, and had reHed thereon in his answer. But he, Swift, deri ves his title solely from the deed of A!S!"nes to him, conveyed through the deed jj fJEve rts to Agnes, without anv knowledge or considerationj) f. or reliance u pon the written contract or memorandum before jne n- t iohed . and bases no claim thereon. So far, therefore, as Swift is concerned, he st ands precisely in the same condition as he A vould have done, had no written contract ever existed between tb & parties. Everts and Ag n q s. It is tAie that S'wift admits in his answer the said agreement, and avers that in pursuance thereof. Everts execut- ed a deed conveying the title, but he sets up no claim under this alleged deed, nor any equitable considerations growing out of the original con- tract. He claims bv virtue of his deed from Apies and t he deed of Everts to Agnes . On them, and them alone does he base his rights jjid i nterests, and by them are thev to^ be adjudicated . For the purposes of this case, it is wholly immaterial whether the defendant Agnes was in a position entitling him to demand a convey- ance from Everts or not. Were we to express an opinion upon that subject, perhaps it would not go far to aid either of the defendants. The conveyances under which Agnes pretends to claim are voluntary, in contradistinction to those decreed to be executed upon a bill for specific performance. The deed or deeds, therefore, executed by Everts to Agnes, must be considered precisely the same as though no previous contract or memorandum had existed, so far as their operative effect upon the defendant Swift is concerned. We regard the making and delivery of the two deeds as but one con- tinuous act, having its consummation in the deposit of the last deed with Zettler. We-do , not think., as is claimed by the counsel for tl ie d efendant, that any title passed by the first deed. It was rather an attempt to convey the premises, which was abandoned for anotE ir, and as was supposed, better and more perfect fom i. The rights of the parties, whatever they are, must therefore depend upon the efi:'ect of the last deed, and their respective relations to it. We thi nk JLlxere can be no doubt that the fraudulent means u sed by Agnes to get possession of the deed from Zettler, the deposita ry. a re such as . .eff ectually preclude him from deriving any benefit from it__Th^. testimony .on, .this. -branch of., jLbe case is satisfactory. The deed was left with Zettler as an escro w, .. w.ith ...ins tructions not to be delivered until certain securities should be given by Agnes. Until the performance of the condition, it was, and must remain, a mere scroll in writing, of no more efficacy than any other written scroll ; b^t when, upon the performance of the condition, it is delivered to th e g rantee or his agen t, it t hen becomes a deed to all intents and purposes, a nd the title passes irom the date of the delivery! The deli very to be valid, must be with tlie assent ot the grantor. These are familiar prin- ciples and do not require the citation of authorities to sustain them. If the g'-^nlf^ nKfgjp p-^gsession of the escrow without performance_of Ch. 2) EXECUTION OF DEEDS 349" t he condition, he obtains no title thereby, because there has been no delivery with the assent of the grantor^ which assent is dependent upon compliance with the condition,. The assent of the latter is with- held until the condition is performed. The obtaining of it by fraud, l arcen y, or any means short of performance of the condition, is against the assent of the grantor; and as th is assent is essential to delivery, a jid a delivery is essential to the validity of the deed, it is difficult to perceive how Agnes ever obtained any title whatever to the premise s, and of course, equally difficult to perceive how he could convey any, by any conveyance which he might execute to another. The recording o f an escrow does not make it a deed. Suppose Zettler had procured the deed to be recorded, and Swift had purchased of Agnes on the faith of the record title, without any delivery of the deed to Agnes, will it be claimed that Swift in such case would have obtained title? How is the case made better by the wrongful possession of the escrow by Agnes, obtained without the consent of Everts, and hence without any delivery to him? It is true, all this might be done and Swift, the pur- chaser, be quite innocent of any wrong. It is also true, that either Everts or Swift must sufifer by the fraud of Agnes, the latter being unable to make reparation. But which has the prior of superior equity? Ev erts asks that he shall not be divested of his estate witj i- out his consent . Swift asks not only that Ey erts mnv he thus divested . but that he, himself, may be invc ^tprl with it- It is quite apparent that the sup erior equity is with him who had the original title, with whic h he has never voluntarily parted . Swift has his remedy upon the cove- nants of his deed from Agnes. But were the equities equally balanced, the legal title must prevail. T hat the leoal title never passed fro m E verts, w^e think is clear, both from reason and authority . 2 Blk. Com. — — ; 4 Kent, Comm. 459; 5 Greenlfs. Cruise, Title, Deed, 45, 46; Jackson v. Catlin, 2 Johns. (N. Y.) 248, 3 Am. Dec. 415 ; Same v. Mc- Kee, 8 Johns. (N. Y.) 429, 431; Frost v. Beekman, 1 Johns. Ch. (N. Y.) 296 ; Jackson v. Rowland, 6 Wend. (N. Y.) 666, 22 Am. Dec. 557 ; Carr v. Hoxie, 5 Mason, 60, Fed. Cas. No. 2,438 ; Jackson v. Sheldon, 22 Me. 569; Robins v. Bellas, 2 Watts (Pa.) 359; 1 Story's Eq. Juris. par. 75, 76 ; Somes v. Brewer, 2 Pick. (Mass.) 184, 13 Am. Dec. 406 ; Worcester v. Eaton, 11 Mass. 375. B ut it is contended that Swift j'l pntitlpH tr> pr otertinn as a bona fi de purchaser without notice . This has been a point of some difficulty. We have not been rei'erred to, nor have we been able to find an author- ity directly in point. We are aware that courts of equity go to great lengths to protect a bona fide purchaser for a valuable consideration without notice. The plaintiff cannot set up the fraud of his grantee in procuring a conveyance, to defeat the title of a subsequent bona fide purchaser. But such, and all the cases referred to, differ from the case at bar, in the important fact that in all of them the conveyance was perfected by the voluntary act, and with the assent of the grantor. He made the sale. He executed and delivered the deed, or caused the ^- 350 DERIVATIVE TITLES (Part 2 same to be done. All these acts were perfectly voluntary on his part, and no matter what fraudulent representations may have induced him to do these acts, an innocent third person shall not be made to bear his misfortune, or suffer for his credulity. Cases of this kind are numer- ous, and the principle on which they all depend is an equitable one. But they all depend, nevertheless, upon the fact, that the party volun- tarily parted with his property and executed and delivered the evi- dences of its alienation. Not so, however, in the case of a forged or stolen deed. The reason is obvious. In the latter case, there is no a ssent of the alleged grantor. There is nn Hplivpry it IS erroneous to suppose that Everts delivered the deed to Zettler for Agnes, and thus made Zettler his agent, and is there- fore bound by his acts. If the depositary of an escrow can be considered the agent of the depositor at all (which we very much doubt), he is only such within the scope of his authority. He is as much the agent of the grantee as of the grantor. He hold s t he scroll for both, to be delivered on performance of the condition . He is as much bound to deliver the deed on pertormance of the con- dition, as he is to withhold it until performance. The act of deljver v c annot be considered the act of the grantor until the condition be com - plied with. Without such compliance, there is no assent to the deliv- ery. Toobtain the deed or scroll from the depositary without such A^ compliance is as much against the assent of the grantor, as it would be '^ to take it from the desk or drawer where the grantor has deposited it, without his knowledge or consent. It would seem, therefore, that thg re i s a great and fundamental distinction between the case where b v f raudulent re presentations, a pe rs on is induced to execu te an d delive r a cleed^ a nd one where the deed ox .scroll is obtained trom a deposit ary without the know l edge or consent of the depositor, or rnmp|iani-p w ith the cond itions on which the deliver y dep ends. *^— ~~^ II ,, I B^ I . I fll - — ^*— — ^' It would seem that where a deed deposited as an ascrow is obtained without performance of the conditions, by operating upon the fears or credulity of the depositary, or by fraudulent collusion with him, or by other undue means, it be ^rs a closer analogy in i)rinciple to the case of a ^orged or stolen deed, than it does to that of a fraud practiced direct - l ^upon the grantor, by means of which he is induced to deliver it . In t he latter case, the legal tit[e passes, and a subsequent bona fide pu r- c haser is protected . In the former, no title passes whatever, and a subsequent purchaser is not protected. In the one class of cases, there is the voluntary assent of the grantor; in the other, there is no assent at all. If this reasoning be correct, t he better opinion would seem to b e. t hat the fraudulent procurement of a deed deposited as an escrow , y t%^ f rom the Hppn^itnry hy the txrant ee named in the deed^ would not ope r- fj^^""^ ate to pass the title, and that a subsequent purchaser for a valuab le •^ ' considera tion wit hout notice, would derive no title and would not be protected. Ch. 2) EXECUTION OF DEEDS 351 Bu t it is contended by the counsel for tlie complainant, that the de- f endant Swift does not show himself, by his answer, to be a bona fide purchaser. If this be so, we are relieved from the necessity of decid- ing directly the other question. The answer of Swift alleges, "that he paid to Agnes without fraud, a good and valuable consideration accord- ing to a contract then made between them, and took from Agnes and his wife a conveyance in the usual form of a warranty deed," etc. 'fhe a nswer nowhere alleges what the consideration was, how rnuch, if any - t hinof. was paid, or when paid, though it does state, upon information and belief, that from June, 1851, "the complainant was never heard to set up his claims until after said Swift had obtained and recorded his deed and paid the consideration, all of which occurred on or about the 8th day of October, A. D. 1851." T o entitle a party to the protection which a court of equity exte nds t o a subseciuent bona fide purchaser, he must n^' ke a full statement of a ll the facts and circumstances of his case, so that the court may be able to do perfect equity between the parties. It is not ^suBident to allege that he has purchased for a valuable consideration with- out notice, but t he consideration must h-Ave hpen- nr tually pa id before notic e. And if a part of the consideration only, has been paid before notice, he will be protected only pro tanto. Hence it is nece s- s ary that the actual consideration be stated, and the amount actua lly paicL The mere averment that he is a purchaser for a valuable consid- eration, and that the consideration is paid, is not sufficient, and no in - st ance, it is believed, can be found where such a statement in an an - s wer has been held sufficient^ Story's Eq. par. 64 et seq., and cases there cited ; Whit^ and Tudor Eq. Ca. 77; Story's Eq. PI. §§ 28, 806, 852 et seq.^*" d,^.-S7^ 30 iipp/Cc, G Wis. 45.*? nS57) ; Dixon v. Bank, 102 Ga. 401, 31 S. E. 96, 66 Am. St. Pau< liK! (1^97): Jncksoii v. Lynn, 94 Iowa, 151. 02 X. W. 704, 5S Am. St. Rep.^s() (lyn')) : llarkrender v. Clayton. 50 Miss. lis-A, :n Am. Rpp. PAIO (1S79) ; Smitli V. South Royalton Hank, .''.2 Vt. .'141, 70 Am. Dee. 179 (lSo9), ace, . See. also. Wood v. French. .'iO Okl. CS.'j, 130 Pac. 734 (19i:?). v^"\ ybet li er t l"^ gl-pntep nfipipd in n fj eed delivered as an pscfoAv. who h as \ ^n>iif,'fu!ty"'T)T47 lill(''' '<• =i^ |"it it on ree nid. can convey a pood title to n bo na fi jle purcliaser. is a on yr'tilin in-rphitiim t-n ^|Y |ucll the authorities ai'e in eo n- tlict. In I'.lijiht V. Schenek, 10 Pa. 2N5. .51 Am. Dec. 47S (1,S49) the court held, irrfr*full and well-reasoned opinion, t hat the title of a liona fide nnichiiser enn lil n ot lie defeated hv |)ro()f that one of The deeds llifougii which he claimed tit le w'as a wrdULcfnlly otifained and a wrongfully re( crded escrow . The court rested it's decision on the fact that the custodian of an escrow is the a.wnt of the grantor as well as the srantee. and i f one of two innocent nersons must suife r hv the wrouL^ful act of the ageiit^ lie who enndoys an unfaitliful atj:ent. and nuts it in his iwwer to do the act, nmst hear tlie loss: that the apent has the power to deliver the deed, and, if he delivers it contrary to his instructions, he will be answerable to his prin'^ipal, and it is, therefore, reasonable that the ^ ^ latter, and not the iiniocent purchaser should bear the h^ss. In Everts v. Ag- C^L^^ fiyOjf^ p es. 4 Wis. H4.3, 05 Am. Dec. 314 (1S55). the contrary was held . But in the lat- fl^ _ 9 "—tr tei- case the court appears to have acted in Ignorance of the decision in the *^V***' '' former case, and in ignorance of tlie ecpiitahle doctnne upon which it rests, al- CL^i/*^ though the former decision was made six years before the latter. This, as i t "^T^ s eems to us, was an unfortunate oversi'Jiht: for the former dec ision is snpnort- 0^ by reasoning so strong, and, as it tseems to us, so satisfactory, we cajiuut re- 352 DERIVATIVE TITLES (Part 2 SCHURTZ V. COLVIN. (Supreme Court of Ohio, 1896. 55 Ohio St. 274, 45 N. E. 527.) ]\TiNSHALL, J.^^ There can be no question but that James E. Colvin Avaived his Hen as a vendor by taking a mortgage on the granted^^g^"^" ises and other lands of the grantee, to secure the purchase money. Such is the settled law of this state. The court's conclusion of law as ' to this is correct, and not now questioned by the defendant in error. So that th_e_qnly^^ue^tion here presented,_is_as_to whether it erred in its second conclusion, that, upon the facts found, tlie mortgage^jof James E. Colvin, being subsequent in point of time, is superior jn equity to the Schurtz mor tgage . Priority is claimed on the ground that at the time the SchurTz mortgage was taken, Jame s E. Colvin he ld t he legal title to his interest inthe premises, subject, ho wever, to a legal obligation to convey to James Colvin as purchaser, on his pay- ing the '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 conclusion 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. l ames B - Colvin had by a verbal agreement made in 1884, sold his interest in the premises to James ColviUj^ who went into possession under~ITre agreement and was iii_ possession 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__toJames Colvin, the purchaser, and placed it in the hands q|^ th ird person, H oward 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 sist the conviction that if the attention of the court had been called to it, and tlie 'principles on wliich it rests, a different conclusion would have' been^l'Mcfi- ed_; and the subsequent decisions, v^-hich have followed the lead of that, would have no existence. * * * Escrows are deceptive instrument!^ They are not what they purport to be. They purport to be instniments which have been delivered, when in fact they have not been delivered. They clothe the grantees with apparent titles which are not real titles.^ Such deeds are capable of being used to enable the grantees to obtain credit which otherwise they could not obtain. Thej. are capable of being used to deceive innocent purchasers. And the makers of such instruments can not fail to foresee that they are ITaljle to be so used. And when the maker of such an instrument has voluntarily parted ■ with_the possession of it, and delivered it into the care. and keeping "of a pgt- son of'his own selection, it seems to us that he ought to be responsible for tli^ use that may in fact be made of it^, and that in no other way. can the public b£ protected aLiainst the intolerable evil oFEaviug otu- public records encumbe^d with sucii false and deceptive instruments." Hubbard v. Greeley, 84 Me. 340, ^24 Atl. 790, 17 L. R. A. 511 (1S92). ""^ 31 The statement of facts is omitted. Ch. 2) EXECUTION OF DEEDS 353 delivered the deed to him tliat he might obtain a description of the premises and exhibit it as evidence of his tit_le. The facts found bear this construction and none otlier. It is true that from the facts found it was not to be regarded as dehvered. But the law has always at- tached much importance to an overt act. It_contrayenes its spirit_to allow that an act may be done-Aykfar-an intention contr ary t o Ae-act itselL And whifst, as between parties, the intention may be shown, it"seLSom permits this to be done, where to do so ^P^l^by^""^ ^ fraud on innocent third persons. Here, whilst James C^mnwks in posses-* sion of the land and of a deed to it by James E. Colvin, of whom he had purchase^ the 'Schurtzs, on the faith of these appearances, loaned him $6,500^and took a mortgage on the land to secure its^^^ay- men't; and, as the court expressly finds, without any knowledge tha' the deed had ever been held as an escrow by any one, and that i t wa s taken in good faith without any knowledge that James E. Colvin_Jiad 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 th e deed to be deli vere d wh e n the conditions had been j^erforrned^ Howar d violated Jiis^ trust. He delivered it to the grantee that the latter might obtain a loan o n t he land "by exhi bi tjng it as evidence of his titlg . The loan was so obtained of persons who had no knowledge of the facts and were en- tirely 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 whereone of jwo innocent_pera£LQS,.must jjif| er from the wrong- ful act of another, he m ust bea r the loss who placed it in the p ower ^^ ^li^ £ersori as_ hjs_agent to^ commit t he wron. q . 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 prin- ciple, unless there is some rigid exception established by the deci- sions, which forbids its application where a deed is delivered in escrow. Before considering this question, it may be well to note t hat n o importan ce can be a ttached to the fact that the deed, on_the faith of whic h the loan was made, Tiad not yet been recorded^ A deed on^e- ^iy5.''Y-£5§§£s_t^^^^^° '-^^^ ^^^^ whether recorded or noi^ It takes^- fect on deliv erv- The object of recording a deed is to give notice to third persons, not to perfect it as a muniment of title. Where no t recorded it will be treated as a, fraud against third^j)ersons^ dealing with the land without notice of rts 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_j deed; and the failure to record it in no way influenced the conduct of any of the parties to the suit. Aig.Prop.— 23 354 DERIVATIVE TITLES (Part 2 There are some cases which seem to hold that, where a deed is de- livered as an escrow to a third person to be dehvered on the perftn'm- ance of certain conditions, no title passes if delivered without the c onditions being performed : and that this is so as agamst 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 escrow, contrary to the vendor's instructions, there is no delivery, and consequently an innocent purchaser acquires no title. To tlie objec- tion that if this be true .there is no safety for purchasers, the court said that if it be not true, there 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 delivered. Where a deed is found in the gra n- t ee's hands, a delivery and acceptance is always presumed. Wash. 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 Pa. 285, 292, 51 Am. Dec. 478, 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 the agent of the grantor. I f a man employs an incom petent or unf aithful agent, Jie i s the cause of the loss so far as an i nnocent purchaser is con cern ed, and he ou ght to bear it^ except as against the party who may be equally negligent in omitting to inform himself of the extent of the authority or may commit a wrong by acting knowingly contrary there- to," And the case was disposed of on this principle. The case on which most reliance is placed by the defendant in er- ror, is that of Ogden v. Ogden, 4 Ohio St. 182. The facts are some- what complicated. It seems to have grown out of an agreement for an exchange of lots between two of the parties, each being the equita- ble 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 per- forming certain conditions, and was delivered to a third person to be delivered on the performance 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 the bill that they took their mortgages with notice and to cheat and defraud the com- plainant; and it does not distinctly appear whether this was true or Ch. 2) EXECUTION OF DEEDS 355 not. From the reasoning of the court it would seem that the deed had been obtained from the party holding it in some surreptitious planner. It is first conceded "that if Dav id reposed c onfidence in Gil- *v/ * bert. and he violated that contidence" and delivered the deed, and los s ^ (yf^^^ , S is t o fall on either D avid or the mortgag e es, that David should"~sus - tain_that_loss, and_j^t_Jiiejmioceni mortgagees/ Instances are then given in which the rule would be otherwise — an innocent purchaser from the bailee of a horse, or of stolen property, or from one who had either stolen or surreptitiously obtained his deed. There is no room for doubt in either of these cases. But the court then observes that, "I f the owner of land makes a deed purporting to convey his land to a ny one, and such person by fraud or otherwise procures the owner t o deliver the deed to him, a bona fide purchaser from such Iraudul enf gra ntee without notice of the fraud, might acquire title^_to_theJi3Jid." This, we think, is equally clear ; but, unless the deed in the case had been stolen or surreptitiously 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. Railroad Company, 17 Ohio St. 139, Here the owner of a tract of land contracted to sell it to the company, but refused to de- liver 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, tlie company; and that a deed can not be deliv er ed as an escrow to the vendee. The latter statement is true. But as a matter of fact i'Twas delivered to the president of the com- pany and not to the company itself. There is no reason why the presi- dent could not have held it as an escrow, and under the agreement, must be regarded as having so held it. Railroad Co. v. Iliff, 13 Ohio St. 235 ; Watkins v. Nash, L. R. 20 Eq. 262 ; Insurance Co. v. C-ole, 4 Fla. 359. The plaintiff trusted the president to hold tlie deed, and it was his wrongful act that disappointed him. The supreme court of Indiana in a well-considered case. Quick v. Milligan, 108 Ind. 419, 9 N, E, 392, 58 Am, Rep. 49, t he facts of wl ^ich are very similar to t he case before us, held that where a dee d / . ^ i s delivered to a th ird_j)erson_to be delivered the g rantee, who is 'uj J^^,^ al ready in possession of the land ,. on payment of the purchase mone y, ^^ andis delivere d without tfie cond it ion being performed that the vend or is estopped as a gainst an innocent purc haser to set up his title. See, aTso^'and to the same effect, the following cases: Bailey v. Crim, 9 356 DERIVATIVE TITLES (Part 2 . -l.s Biss. 95, Fed. Cas. No. 734 ; Haven v. Kramer, 41 Iowa, 382 ; Blight V. Schenck, 10 Pa. 285.^^ It^isjthe^^eneral, if not universal, jaile of the c ourts, to p rotect the innocent purclmseF~oFprope7ty Tor value, against such vices in th e title of their vendors^ as result from fraud practiced by them in^- quirlng tb.e proi^erty. For in all such cases the party compraTfung 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. He nce, it is, tha t the innocent purchaser for value from a fraudulent g rantee, is always projected in his__title as against the_eciuity_of the wronged grant pr. In Hoffman v. Strohecker, 7 Watts (Pa.) 86, 32 .\m. Dec. 740, where a sale has been made under execution upon a satisfied judgment, the satisfaction 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. Junkin, 4 Watts (Pa.) 85, 28 Am. Dec. 685, and in Fetterman v. Murphy, 4 Watts (Pa.) 424, 28 Am. Dec. 729. In the case of Price V. Junkin it is said " An innocent purchaser o f the legal title, witho ut noti ce of tr ust or fraud i s pecu liarly protected in equity, andchan^ry n ever lends its aid to enforce a claim for th e land againsTEIm?^ Most of the casescited and rehed on by the defendant are not in point. W^erethe grantee wrongfull y procur es the holder oi_s._de§^d as an escrow to dehver it to him, h e acq uires no title, or at Jea^..a voidable onej 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 depositary, 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 s o a deed held in escrow, delivered after the death of the principal, passes no title. It will readily appear, from reasons already given, that such cases are without application to the case under review. Her e i t will be conceded that as_ between the g rantorand_the_gr antee th e latter took no title, because deliverej _J)y Howardcontrary t o his in- struction . But the plaintiff relies on the fact that, as found, 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 se- cure it; and that the defendant is therefore estopped from setting up his legal title as against him. 82 See, also, Mays v. Shields, 117 Ga. 814, 45 S. E. 68 (1903). Ch. 2) EXECUTION OF DEEDS 357 But it is claimed that, as the plaintiff relies on an estoppel, he should have pleaded it. This rule, however, only applies where the party has had an opportunity to do so. In this case he had none until the evidence had been introduced. The defendant, in his answer and cross-petition, set up tliat the deed from him had been placed in escrow and wrongfully delivered to the grantee and that the plaintiff had knowledge of the facts. The plaintiff then averred his want of any knowledge or belief as to the facts stated by the defendant and denied them. T he court, however, found that the deed had been delivere d t o Howard Colvin to be held as an escrow and was by him wrongfully d elivered to the grantee : bu t also found that the plaintiff was ignora nt of the facts, and an innoc ent piirrh a<;pr fn r vnlne -yvithout notice . The object of pleading is to inform the opposite party of the facts upon which the pleader relies as the ground of his claim or defense. And h ere, when the plaintiff denied knowledge of the facts as ple aded by t he defendant, he fairly advised the defendant that he relied on an es- to ppel, on the ground of want of notice^ should the facts as pleaded b e made to appear in the evidence ; for, that he was a purchaser for value appear ed fro m his petition, which was taken as true as it wa s not controverted . Hence the claim of the plaintiff could in no way surprise the defendantunlfiss he was ignorant of the law. The first o pportunity the p lainnrtn^ to ple ad an estoppel as against fam es E. Colvin, was when the facts were fully made to appear in ev idence ; a nd he is not therefore precluded from doing so on the fact s as found \>v the court. Judgment revers ed _and judgment on the facts for_ plaint iif in er- \j' T1-i><^AMPBELL V. THOMAS, -^l^ ^s. ^zA^LI^..^*^ (Supreme Court of Wisconsin, 1877. 42 Wis. 437, 24 Am. Rep. 427.) O/^uvw /'<**' Appeal from the Circuit Court for Racine County. The case, stated most favorably to the plaintiff, is briefly as fol- ""^jUi lows: The plaintjff and__Thpmas^entered_jnto,,a:paroJ_agreen^^ t he sale b y the latter to the formeiLilf certain^ land,. at_ a , stipulated ' price, to be secured and paid as JiereinaXtei men^ioned^ In accordance with such parol agreement, the plaintiff paid Thomas a small sum o n account of the purchase money, and the latter signedi^-Se aled a n d duly acknowledged a deed of the premises to the plaintif f (which was in th e usual term of a warranty,. deed ) , and delivered the same to Judge 33,where the custodian has. improperly handed the deed. oygT-tO the grajatoe .J;fee granTOr^may have same caaceled. Anderson v. Goodwin, 125 Ga. 663, 54 S. E. 679 (19{X;); Bales v. Roberts, 1S9 IMo. 49. 87 S. W. 914 (1905). And the registration of such a deed may be enjoined. Matteson v. Smith, 61 Neb. 761, 86 N. W. 472 (1901). 358 DERIVATIVE TITLES H (Part 2 '^ijt^ ^ Hand, his codefendant, w ith dir ections to delive r it to the plaintiff if ^ "^^ th e latter should^ tw o days later, deposit wlthHand his notes for a y^ ihA ' c ertain sum (part of the price of the land) , and a mortgage executed 4^- b y him on the same land to secure the paymen t ot such note s, and a t the same tim e pay to Hand, for the use of Thomas, the balance g f he asfreed price. These proceedings were all in accordance with At the appointed time, the plaintiff deposit ed such verbal agreement. , ^ , - . ^ N wi th Hand the notes, mortgage and money as agreed, a nd demanded t he deed of the land ; bu t , acting in obedience to instructio ns froj ji Thomas. Hand refused to deliver the deed... At the same time, Thomas tendered to the plaintiff the money which the latter paid him when the verbal agreement was made, and, on the refusal of tlie plaintiff to receive it, le ft the same with .Tudge Hand for the plainti ff. T his action was brought to compel Tudge Hand to deli ver to t he la intiff the deed thus deposited with him by Thomas. The circuit court gave judgment for the plaintiff, that the defendant Hand de- liver such deed to him, and that Thomas pay the costs of the action. From this judgment Thomas appealed. [The court concl uded that the judgment should be re versed. A petition for rehearing having been granted, the case was reargued, and tlie following opinion handed down.] Lyon, J. The c ontrolH ng question in t his case is, whether it is e s- se ntial to th e plain tiff's ng Ht ot action that t her e was a valid exec u- to ry contract between the parties~?oF the purchase and sale of t he l and described in the deed of t he defe ndant deposited with Judg e Hjnd. If this question be answered m the affirmative, the plaintiff cannot recover ; for it is certain that no ijiote or memorandum of the alleged agreement under which the plaintiff claims, expressing the consideration thereof, was reduced to writing and subscribed by the defendant. Rev. St. 1858, c. 106, § 8. The learned counsel for the plaintiff has met this question squarely, and, in his elaborate and most able arguments on the motion for a rehearing and on tlie rehearing of the cause, has maintained the prop- osition that "it is not true that a person must be under a previous binding executory contract to convey the lands described in tlie deed to the grantee, in order to place a deed thereof, delivered to a third person on condition for the grantee, beyond the control of the grantor." Undoubtedly there is a class of cases in which this proposition is true. These are the cases where the deed has been delivered by the grantor to a third person wnth instructions to deliver the same to the grantee on the happening of a future certain event — as the death of the grantor or some other person, — and such conditional delivery is assented to by the grantee. In such a case, if the grantor reserves no control over the deed, he cannot after such delivery recall it, but the grantee is entitled to it upon the happening of the event, although there is no valid executory contract to support it. The reason of this is, that the first delivery of tlie deed passes to the grantee the title to Ch. 2) EXECUTION OP DEEDS 359 the land, and thus relieves him of the obligation to make title through any contract other than tliat expressed in the deed itself. B ut byatl^of the authorities a deed so deposited with a th ird per- sqnjLo ^be delivered to the grantee on the happening of some event \'~f;;fu{ /^\^k. i n the~future which may or may not happen, does not pass title to t he lantj* described in it to the grantee until such event occurs, and t hen onlY_from that time, or perhaps from the actual delivery of t he J d eed to the grantee after tlie event has occurred. There may be ex^ ceptional cases, as where a man delivers his deed in escrow and dies f^j^^JpLcxi b efore the conditions of the deposit are fulfille d. In such cases, it ,y- O^xa*. has been said that from necessity after the conditions are fulfilled the deed must take effect by relation as of the time of the first delivery. This, h owever, is not one of the exceptional cases: an d it must b e.^ . ^^ c onceded, we think, that the deposit of the deed with Judge Hand by \ t he defendant with the assent of the plaintiff did not transfer title to A>w jL-j^ei-^ the plaintiff. ^ ^5^ ^ ^ Because such deposit did not divest the plaintiff of his title to the l^ land, there is no executed contract for sale ; and hence, it seems al- most too plain to be questioned or doubted that, b efore the pla intiff c an obtain the delivery of the deed and the title to the lan d^jafter t he defen H^ipt Vias r ecalled the deed and repudiated thewhole tjjnsac- t ion, he miisL-SllQ^ that the defendant has made a valid and bi nding agreement t o.^dl and convey the land. And such an agreement can be evidenced only by a written n o te or memorandum thereof , express- ing the consideration and subscribed by the defendant. In many of the cases cited, there was no valid executory contract for the sale of the land, but the grantor permitted the deed to be delivered by the depositary to the grantee upon performance of the parol conditions of the deposit. Undoubtedly, tlie final delivery to the grantee in such cases operated to pass the title ; as it would in the present case had the defendant seen fit to allow his void parol agreement to be thus consummated. In other cases cited, there was a compliance with the statute of frauds. Everts v. Agnes, 4 Wis. 343, 65 Am. Dec. 314, is one of them. B ut we have not discovered a sin - g le case in which it has been held that one who has deposited a deed o f land wi th a thi rd perso n with directions to deliver it to the granted \^jJJii- ojLiiiS^^PP^'^^S of. a given event, but who has made no valid ex ecu- fisjsfi, /\JL^ t ory contr act to convey the land, may not- revoke the directions to tli e i « i depositar y and recall the deeci at any ti me before the co nditio ns o f 7\A^^yJ-^^ t he depo sit have been complied wuh ; provid ed those conditions are (Xa^ Aaj^ s^c h tha t the title does not pass at once to tlx e grantee upon delivery , iV-f- ' oTlhedeed to the depositary... t/rv^**AA-«|V Tlie case of Welch v. Sackett, 12 Wis. 243 ; Brandeis v. Neustadtl, CfiJttJu^ M^ 13 Wis. 142, and Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592, M as well as that of Thomas v. Sowards, 25 Wis. 631, contain much ^*'V^'wv4 f^ doctrine in perfect accord .with the views here expressed. The latter >g^jCt/Civtir ^ of these cases, as w^as observed in the first opinion filed herein, is-j-, V>,j -k 360 DERIVATIVE TITLES (Part 2 direct authority that in this case the plaintiff must show a vaHd ex- ecutory agreement for the sale and purchase of the land, or fail in the action. And here it should be observed that the language of the opinion in Thomas v. Sowards which was commented on at some length in the former opinion in this case, was manifestly employed with reference, to the facts in that case, without any intention to lay down a general rule of law applicable to other cases. In that view, the language seems unexceptionable. So far as those comments are concerned, I am still inclined to the opinion that the views there ad- vanced a-re correct. The proposition th at the executory_contract may be j)royed b^Jhe deed (if it is stated therein) is, however, jiilLjQpen in this court for argument and decision in a proper case^ Our conclusion is, that this case was correctly decided in the first instance. The judgment of the circuit court must therefore be r^ - v ersed, a nd the c ause rem an ded witl i the dire ction to that c ourt^ to dismis_s_the comp laint.^ * (^>u^ ^t^ L;iilii:Miial deliveiT of a conlracFunner se;Vl 01- n iimnissMry note only when there is a legally valid contract "to exec ute the ro!itr;Kt or iiufe. Another consideration adver.se to the view referred to lies in the fact that, while the doctrine of deliveiT in escrow was recognized at least as early as the first half of the fifteenth century (see Y. B. 13 Hen, IV. 8; Y. B. 8 Hen, VI, 26; Y. B. 10 Hen. VI. 25\ a purely executory con- tract, not under seal, was not then enforceable either in the common law courts, or, it appears, in chancery. That being the case, the requirements of an extraneous contract in order to make the delivery in escrow effective would, in the fifteenth or sixteenth centuries, have necessitated a contract under seal, and it seems hardly probable that such a delivery of an obligation or convey- ance under seal was always accompanied by another obligation under seal call- ing for its execution. T he subject of deli veiy in.escrQW.Js. tmated with ^on- gjfip rnhlP fullness in nt Innst *^^'^ "T ^"" ^'rii^i- book.sjCFerkins, Conveyancing, §§" TyS-Il44 ; Sheppard's Touchstone, 58, 59), anil tiierg is not the slightest sug- o-Pfitirrr ] \r\ pit.h pr as to thCJaefiessJit^ .of-sudi an auxiliary contvart. It is, to say t lie least, so mewhat extraordinary that an integral element in a doctrine daTmg f rom the c ommencement of the rifteenth century should have ixmiuiai'il to Jje d iscovered by a California court in .th(; latter half of the nineleenth^^' U. T. Tiffany, "Conditional Delivery of Deeds," 14 Col, Law Rev. 389, 399-400. Ch. 2) EXECUTION OF DEEDS 361 HULL V. SANGAMON RIVER DRAINAGE DIST. (Supreme Court of Illinois, 1906. 219 111. 454, 76 N. E. 701.) Cartwright, C. J.^° This is an a^gealfrgn^jjil^j^gr^of the county cour.t of McLean" county qngnizing^ the Sanga,mon River drainage dis- trict, m said_county, and cmifirmi no; an assessment of benefits agains t appellant'.s lands hy tlie commissioners of said^district. The proceed- ing was commenced by fiHng a petition for the organization of the dis- trict under what is commonly known as the "Levee Act." 2 Starr & C. Ann. St. 1896, p. 1500, c. 42, par. 29. Commissjoners wereappoint- ed by the court, and they examined the lands proposed to be drained, and over and upon which the work was proposed to be constructed, and madea reports as required by section 9 of the act (paragraph Z7), rec- ommending the organization of the district. . Appellant fi led objections to Jthe report, and his objections were overruled. " It is first contended that the court erred in overruling the objections and in not dismissing the petition, for the reason that it was r iot signed b y a majority of the adult owners of the land within the district an d v mo represented one-third in area of the lands to be reclaimed or be n- efited. The petition was signed in the summer of 1903, and the hearing was in the fall of that year, and Ma rk Banks, one of the signers, was counted by the court as _the owner of 160 acres of land. He had previ- ouslysigned and acknowledged a deed of the land to Harrison Frink and Sheridan J. Frink, and hnr^^lpjgs jl ^ ed the. deed in the First National Hanl^ ofElbomington, t o be delivered on payment of the purchase price on or before February 15, 1904. and in case of such payment he was to deliver possession on or before March 1, 1904. The deed placed in escrow conveyed nothing until the conditions for its delivery were per- formed on FLliniary 15, 19 04, w hen it was delivered to the gran tees. Leiter v. Pike, 127 111. 287, 20 N. E. 23. " The title did not pass out of Mark Banks until the deed took eflFect and the grantees became the owner of the land, and he was properly counted as an o\vner. * * * The judgm ent is rev ersed, and the caus ^ reman ded. Reversed and remandedJ^" 85 A portion of the opinion is omitted. se^uppose the gi'nntee in an escrow deed, after performance of the condi- '^tlons, in order to save the propertj' from tax sale^, I^ays the taxes which were assessed against the'property after the deposit or the deed wifli fBe third par- ty but before the performance of the condition. Has he anv remedy against the grantor? Mohr v. Joslin, 162 Iowa, 3-1, 142 N. W. 981 (1913). As_ to the, depo sit of a dee d in escrow workinga^'chajige in. interest I n th e prgpert^ insured?' and so avoidlns an insurance policy on the property describ- ed in the*"deeiarsee Pomerov v. .l':tna Ins. Co., 86 Kan. 214, 120 Pac. 344, 38 L. R. A. (N. S.) 142, Ann. Cas. 1913C, 170 (1912). See. also. Furaess v. Williams, 11 111. 230 (1849) ; Hoyt v. McLagan, 87 Iowa, 746, 55 N. W. 18 (1893). 302 . DERIVATIVE TITLES (Part 2 FARLEY V. PALMER. (Supreme Court of Ohio, 1870. 20 Ohio St. 223.) By the Court. Farley, the ghmtiff, seeksJto_reyerse Jhejiidsnient of the court below, decreeing the'specmc execution of his*written gon- tract^^made with Palmer and wife for the .purchase of her land. At the time of making the contract a deed was executed by Palmer and ife and placed in the hands of a third person^ and by the terms ofjhe ontract this deed was to be delivered to Farley upon his paying jhe stipulated purchase-money. Upon Farley's refusal to pay the money and receive the deed at the time-agreed upon, Palmer and wife brqiight their action for a specific execution. And now it is contended that Far- ley was not bound by the contract, on the alleged ground that as Mrs. Palmer, being a married w oman, was not bound, there was no mutu- ality of obligation. We think otherwise. Mrs^ Palmer was_bound. She had no power to revoke the deed^ The person holding the deed ) was the agent of both parties, and his delivery, according to the terms of the contract, without her consent, or even after her death, woiild [ have been good . Indeed, the authorities show, that upon fulfilment of ^the condition by Farley the title would have vested in him, jpsq^ facto, ; without further delivery. The contract was executed on the part of 'TMrs. Palmer — the title had passed from her — su bject on l y to the p .er- formance of the condition on the part of Fa rley . r Motion overruled.^^ •4^^"^^^^ J^* HALL V. HARRIS. (Supreme Court of North Carolina, 1848. 40 N. C. 303.) 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, Hall v. Harris, 38 N. C. 289, and so much of them as is neces- sary 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 interests and rights of redemption from its teste, as in ordinary cases^ but from 37 What if the grantor flies before the condition if? performed^ See Guild V. Althouse, 71 Kan. G04, SI Pac. 172 (1905); Nolan v. Otney, 75 Kan. 311, 89 Pac-. ti!>0, 1) L. R. A. (\. S.) 317 (1907). Whnt if the depositary refuses to deliver the deed to the grantee after tlie conditions Jiave been performed? See Tonihler v. 'Sumiiter. 97 Ark. 480, ^S-Fs. W. Oiw (1911); Knopf v. Hansen, 37 Minn. 215. .33 N. W. 7.S1 (1887); Hujrhes V. Thistlewood. 40 Kan. 232, 16 Pac. 629 (188S), where the retention of the deed by the depositary was by direction of the jri-antor; Rej;an v. Howe, 121 Mass. 424 (1877), where the grantor had procured the deed from the depositary on the statement that he intended to hand it to the grantee. Ch. 2) EXECUTION OF DEEDS 3G3 the time of "execution ser ved; " and it was declared tliat_tlie plaintiff wouMbe entitled to a decree, provided the deed, under which_he claimed, took effect before the execution, under whi ch th e ^deiendant Harris claimed, was issued. 38 N. C. 289. We are satisfied, that the view then taken of the case was correct. Th e rights of the parties depend upon that single question. The execution issued_.on_the 7th o^f_ March, 1 840 . The plaintiff al- leges 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 ]\Iorgan $725^ for the land, to be paid, a part in cash, and the balance in notes and S£.ecific articles^ as soon as the plaintitt 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 plaintiff, when he paid the price. Accordingly on that day the plaintiff Vw»-*-*-<-< ' paid to Morgan a wagon and some leather, which was taken atjthe /j^^^,^;;^-,^ price of $57.50 and Morgan signed and sealed the deed, and handed jt^ t-n'^ ^x. to Col. Morgan to be handed to the plaintiff', when he paid the balance ^f " y of the pri_ce. The deed was witnessed by Col. Morgan and one San- ders, and is dated on the 2d of March. Afterwards^n the tenth of , March, the plaintiff paid to Morgan the balance of the $725, witliTlie ***^''*^ / excejnion of $152, for which Morgan accepted his note, and the deed ^A^ i^. . was then handed to the plaintiff by Col. Morgan. I'he question upon these facts is, whether the deed takes 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 was signed, sealed, and delivered to Col. Morgan, to be delivered to the plaintiff, when he should pay the price. Ihe 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 whiclTthe^deed^was nu^^y^O-^n. deljv^ered.4o_S_illinJ-P^son, instead 0^^6111^ delivered directly tojl)Q.Ar jT Q' plaint iff, wasm erely tosccure the paynTcnt of tjie j^rice. When that *^ d"-*^ was paid, tiVeplalntiff had a right to the deed. The purpose, for which X*"*^'''^ 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 inten- tion, and we can see no good reason why the parties should not be al- lowed to effect their end in this way. It is true, the plainiiff_wasjT ot ab solutel¥...bQiind to pay the balarice 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; bjjHj£Xomplied_w]thjlie condition and paid the pric^ His rights c annot be affected by the fact] that he mig ht lla^'c avojded_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 enti- tled to the deed ; a nd it must have taken effect from the first delivery ; 364 DERIVATIVE TITLES (Part 2 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^ j)rovided the condition was complied with. If this in- tention is bona 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 pa- Iper, 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 condi- tion" &c., and a case where these words are used, take "this deed and hand ii to A. B. upon condition," &c. In the latter case it takes effect presently ; while in the former, it is held, in most cases, not to take ef- fect, until the second delivery. Touchstone, 58, 59. The distinction, upon which this "diversity" is made, would seem too nice for practical purposes, to be a mere play upon words. ^^ Thgja- '*'fjJi^ t ention of the p arties, whether one set of words be used or th e other . V''^ 2 i s' to make it a d eed presently, but to lodge it in the hand of a thi rd 'jTjuA * p erson, as a security tor the performance of some act . If it was not to be a deed presently, provided the condition be afterwards performed, the maker would hold it himself, and the agency of the third person would be useless. Ind eed the id ea, that the third person is a- mere agent to deliver the paper as a deed, if particular words be used, "es- crow" for instance, even by the old cases, has many exceptions, and *^ — . the deed is allowed, in such cases, to take effect. ,_As if the maker dies, yHju"^*^ as in the case above put ; or becomes non c (:)^ii^os ment is ; or, being a In ^^^JLX^'i^viiQ. sole, majyjjjgs; or if the vendor should create any incumbrance, ^__J.J--<^ as by making a lease ; in all such cases, when the jgaper was handed to ^/i^ ^^^"^ t he t hird person to be delivered as a deed upon condition &c,, it is aj- ij^c>**'^'*'t_JllQw£d to take effect from the first dehvery, in order to effectuate tlie -^ V'*'^^ intention of the parties. In^otlier words, when it can make no differ- ^^^ ) ence, the deed takes effect from the second delivery, but if it does make ►^ a difference, then the deed takes effect from the first delivery. This t^^^^^h jU^^^^'^^^y yields the question. The_]ast,.exceptiQix.,cited abov-C, asulojhe X'^^/.r elation of the deed, in cases of "escrow" to avoid a lease, iakes^inihe case tinder consideration; for it is the same, whether the incumbr;^jice, to be avoided, proceeds from the act of the party, or from the eft'e^ct of an execution, as the object is to make the deed effectual an^^to qarr^out.,the intention^ State v. Pool, 27 N. C. 105. But, in truth, the distinction cannot be acted upon — it is merely ver- bal, and whether one set of words would be used, or the other, would be the result of mere accident. The law does not depend upon the ac- cidental use of mere words "trusted to the slippery memory of wit- nesses." It depends upon the act, that a paper, signed and sealed, is put out of the possession of the maker. It must be confessed, (and with reverence I say it,) that many of the dicta to be found in the old 38 state BanK V. Evans, 15 N. J. Law, 155, 28 Am. Dec. 400 (1S35) ace. Ch. 2) EXECUTION OF DEEDS 365 books, in reference to deeds, are too "subtle and cunning" for practical use, and have either been passed over in silence, or wholly explained a way. We are satisfied from principle and from a consideration of the authorities, that when a paper is si^ied._and_iealedjajQd handed to a third person to be handed to another upon a condition, which is after- wards complied with, the paper becomes a deed by the act of parting with the possession, and takes effect presentlv; without reference..io the precise words used, unless it clean ^^ppears to. be the intention. that it should not then become a deed^^and this intention would be de- feated by treating it as a deed from that time, as, if, no fraud being suggested, tjie paper is handed to the tliird person, before the parties have .concluded the bargain and fixed upon the terms ; which cannot well be supposed ever to be the case ; for i p ordinary transactions, th e p reparatio n of deeds of conv eyance, wh i ch is attended with trouble an jjexpe nsg^ usually come§. after the_agreeiiieiit t.Q_s_ell. There must be a de cree for the plaintiff , witli costs against the de- fendant Harris. '^'~ Per Curiam. Decree accordingly. 39 f-^{f^-^-^ MAY V. EMERSON. (Supreme Court of Oregon, 1908. 52 Or. 262, 96 Pac. 454, 1065, 16 Ann. Cas. 1129.) This is an actipa qf. ejecimenf, commenced on October 23, 1907, to recover the possession of lots 35 and 36, in block 11, Stewart's second addition to Baker City. The answer admits that defendant is in pos- session, and alleges that he is the owner of the lots in fee simple ; an3 as a second defense alleges possession under a contract of purchase, as disclosed in the stipulation of facts, which includes the following: That on February 24, 1906. defendant purchasedjhe lots from Dugan and wife, the price to be paid in monthly installments, continuing oy^r a period of more than a year ; that a deed was executed by Dugan ^d wife, and deposited in escrow with AI. S. Hughes, to whom payrnents 39 Whitfield v. Harris, 48 Jliss. 710 (1873) ; Dettmer v. Behrens, 106 Iowa, 585, 76 N. W. 853, 68 Am. St. Rep. 326 (1898), ace. In Vorheis v. Kitcli, 8 Phila. (Fa.) 554 (1871), the wafe of the grantor who had become such between the depositing of the deed in escTow and the per- foi-mance of the condition was held not entitled to dower. In Lewis v. Prather, 21 S. W. 538, 14 Ky. Law Rep. 749 (1893), it was held that a deed made by the grantor after the deposit of the escrow deed but be- fore the performance of the condition to a purchaser who knew of the escrow deed was ineffective as against the first grantee upon the performance of the condition. Leiter v. Pike, 127 111. 287, 20 N. E. 23 (1889), ace. See Cannon v. Handley, 72 Cal. 122, 13 Pac. 315 (1887) ; Conneau v. Geis, 73 Cal . 176. 14 Pac. 580, 2 Am. St. Rep. 785 (1887) ; McDonald v. Huff, 77 CaI^_2t9;T!5Pac. 499 (1888). ~ ^'^ 366 DERIVATIVE TITLES (Part 2 were to be made, and was to be delivered by Hughes when the pay- ments were compl etedj that defendant was to have possessio n from the date of the purch ase; that on April 12, 1906, after the purchase and -yj. before the delivery of the escrow deed, plaintill^Jn an action of debt ''"^'^^J^ against Dugan and wife, attached the said lots, which action resulted A^ ^""^ I in judgment against them on April 25, 1906j that an execution sale of JjlI*^^\ said lots was had on June 12, 1906, and confirmation thereof was haa ^jff^u^Gn June 22, 1906, and a sheriff's d eed issued to the plaintiff o n Jun e 27, 1907; that plainti ff, at the time of the attachment, had knovy ledge of the contract of sale and escrow deed, and on July 15, 1906, notified the defendant of said judgment and execution sale, and demanded that payment of the purchase price be made tn birn ; that defendant paid all the installments of the said purchase price to Hughes, according to the agreement, and received the deed from him on or about September 14, 1907. From these facts the t rial court found that plaintiff acquire d tlie title to the propert y free from any equity of the defendant, an d rendered judgment accordingly, and the defendant appeals. Eakin, J. (after stating the facts as above). 1. The ffrsFlnatter for > consideration is the effect of plaintiff's judgment lien and exec ution sal e ) upon I defendant's prior possession, under his purchase and escrow deed from Dugan and wife^defendant contending that when the con- ditions under which the escrow deed was deposited with Hughes were fulfilled, the deed related back to, or took effect from, the date of such deposit, and thus cut off the lien of plaintiff's judgment. The sale by Dugan to the defendant, and the deposit of the deed with Hughes, created in the defendant an equitable interest in the property, such that, upon full payment of the purchase price according to the escrow agreement, the title would vest at once in the grantee, but pending the completion of the purchase by the full payment of the price, th e legal title to the property remained in the vendor and was therefore sub- ject to attachment, or the lien of a judgment against the ven^r to the extent of his interest therein. _ Such lien, obtained with notice of the escrow agreement, is subject to the equity of the vendee. The delivery of the deed to the vendee being essential to pass the title, the escrow agreement only becomes effectual for that purpose upon the fulfillment of its conditions. The_g eneral rule is that the tit le passes to the vendee from the s econd delivery;j_ Devlin, Deeds, par. 328 ; Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592. There are exceptions to this rule, as stated in 4 Kent's Commentaries, 454. "Generally an escrow ta kes eff'e ct from the second delivery, and is to be considered as the d eed of t he party from that time; but this, general rule does not apply when just ice requires a resort to fiction. _^The relation back to the first delivery, so as to give the deed effect from that time, is allowed, in cases of necessity, to avoid injury to the operation of the deed from events happening between the first and second delivery. * * * But i fjthe fiction be not re^quired for any such purpose, it is not admitted, a nd tH e deed operates^ according to the truth of the case, fr om th e (P^ Ch. 2) EXECUTION OP DEEDS 367 second del ivery. " Rathmell v. Shirey, 60 Ohio St. 187, 197, 53 N. E. 1093, 1099; Devlin, Deeds, par. 328. In Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592, it is said: "This relation back to the firjt delivery is permitted, however, only in cases of necessity, and where no injustice will be done, to avoid injury to the operation of the deed from events happening between the first and second delivccy; as if the grantor, being a feme sole, should marry, or whether a feme sole or not, should die or be attainted, after the first and before the second delivery, and so become incapable of making a deed at the time of second delivery, the deed will be considered as taking effect from the first delivery, in order to accomplish the intent of the grantor, which., would otherwise be defeated by the intervening incapacity. But subject only to this fiction of relation, in cases like those above supposed and others of the kind, and which is only allowed to pre- vail in furtherance of justice, and where no injury will arise to the rights of third parties, the instniment has no effect as a jdeed,._and_no titl e pass es until the second delivery ; and it has accordingly been held th at, if i n the meantime the c>taie shrnild be levied upon by a creditor o f the g rantor, he would hold by virtue of such levy, in preferenc e to t he gran tee in ihc dcedj_" Washburn, Real Prop. § 2181 ; Rathmell v. Shirey, 60 Ohio St. 187, 53 N. E. 1098; Jackson v. Rowland, 6 Wend. J) 667, 22 Am. Dec. 557. 2.>T he second delivery cannot tak e effe ct by relation when the Fantor is able t o make, and the g rantee able to receive, such second delivery abs olutelyl Jackson v. Rowland, 6 Wend. (N. Y.) 667, 22 Am. Dec. 557. It is held in Whitfield v. Harris, 48 Miss. 710, that this fiction of relation will apply to ward off the intervening liens of cred- itors; and Chinn v. Butts, 3 Dana (Ky.) 547, holds to the same effect. But the weight of authority is the other way. 11 Am. & Eng. Enc. ^.^ Law (2d Ed.) 348, says: "B ut it seems to be the prevailing rule tha t. \ /\) C i n the interval of time between the first and second delivery, title r e- / \Y^'^'^'^^ mams in the grantor, subject to the claims of his creditors, and that ' , (^ t his doctrine of relation cannot be applied for the purpose of de- VCr^*^ feating such intervening^ claims." This text is supported by the au- J thorities above cited, and also by Wolcott v. Johns, 7 Colo. App. 360, 44 Pac. 675; Taft v. Taft, 59 Mich. 185, 26 N. W. 426, 60 Am. Rep. 291T >ioyt v. McLagan, 87 Iowa, 746, 55 N. W. 18. , 3y/4t^is beyon d controversy that the title remains in the vendormptil S:he actual delive ry of the deed . The vendor still has not only the legal title, but also an interest in the property as security for the pay- ment of the purchase price ; and this interest should be and is avail- able to a creditor through the lien of his judgment, which lays hold of such legal title, and thereafter payments made to the vendor by the vendee are at his peril: Tomlinson v. Blackburn, 37 N. C. 509. ^ the p.urchase price is fully paid, although the deed is not actually de- Ii\ered, the vendor having but the nak^ ^ leyal title , the judgment cred- itor can acquire no more: Stannis v. Nicholson, 2 Or. 332; Riddle v. 368 DERIVATIVE TITLES (Part 2 Miller, 19 Or. 468, 23 Pac. 807; Riddle's Appeal (Pa.) 7 Atl. 232; Uhl V. May, 5 Neb. 157; Elwell v. Hitchcock, 41 Kan. 130, 21 Pac. 109. Reversed.*" ^ / ., • (fJ '■ SCOTT. V. STONE. . ' (Supreme Court of Kansas, 1906. 72 Kan. 545, 84 Pac. 117.) Graves, J. This was an action to recover damages for a breach of the covenants of a warranty deed. TTTe transaction was evidenced by a contract of sale^^ dated April 8, 1902, which specified the subse- quent steps to be taken by each party in completing the conveyance. The defendant s in error were grantors , and the p laintiff in erro r^^ gra ntee. The contr act of sale, together with $1000 cash paid by the grantee upon the purchase-price of the land, was placed in escrow with a n El Dorado bank to await the performance of the subsequent require- ments of each party. It was stipulated that the grantors should fur- nish an abstract of t itle and execute a warranty deed to the land, and place them in the bank with the cont ract, there to remain until A ugus t 1, 1902, when the grantee should pay the remainder of the purchase- money and receive the deed and aljstract of title. These conditioiis were performed by each party, and the deed and abstract of title we re duly delivered to the grantee as stipulated. At the date of the contract of sale the land was in the possession of tenants. The cultivated portion was occupied by one Arnall, and the pasture-lands by one Pirtle. Arnall paid his rent to the grantee, and Pirtle paid to the grantoci. The grantee began this action^to re- co ver d amages as a substitute for the Pirtle rent. The case was tried to a jury. The controversy on the trial was whether, if a recovery could be had at all, it should be for r ent a c- cruing_from the date of the contract of sale, or from the dat e whe n the grantee actually received the deed, to November 1, 1902, when the Pirtle lease expi red,. The case was presented to the jury upon both theories, and the amount returned in the verdict indicated that it was intended to cover the longer period. The court, on a motion for a new trial, decided that the finding sli^ould have been for the short er period, and thereupon offered to deny the motion if the plaintiff would accept an amount stated, being the value of the rent after August 1, 1902; if not, the court indicated that it would grant a new trial. The plaintiff declined the offer and the motion was allowed. * * * We might let the case rest here, but, as a new trial is necessary and the legal questions involved are controlling, we deem it best to decide them now, and thereby save the parties the delay and ex- pense of further litigation in this court. The trial court erred.jn hold- 40 See Lord's Oregon Laws, § 301. Ch, 2) EXECUTION OF DEEDS 369 ing that the grantee could recover rent only from the date he actuajl^ received the deed — August 2, 1902. Where land is sold by a trans- action involving a contract_of saje containing stipulations for the sub- sequent performance of specified acts by each of the parties, pendi_ng vifhich performance the contract is placed in escrow, and afterward in compliance with such escrow the grantor executes and delivers his deed, to be also held in escrow with the contract and delivered to the grantee when payment has been made by him as stipulated, ^nd all the ^ provisions of the escrow are performed and the deed delivered to the j).A,<,A,«^»wf grantee accordingly, such delivery completes the conveyance, and t he r ^ g -^ . deed relates back to the date of the contract of sale and is not limited ^OlZ^t^a^ to the date when actual delivery is made to the grantee. This doctrine of relation is of ancient origin, and has always been applied, both at law and in equity, to meet the requirements of justice, to protect purchasers, and to effectuate the intent of the parties to contracts. 18 Vin. Abr. 286-293; 2 Greenl. Cruise on Real Prop. 441 • 24 A. & E. Encycl. of L. 275 ; Welch v. Button et al., 79 111. 465 ; Young v. Guy, 87 N. Y. 457; Sutherland v. Goodnow et al., 108 111. 528, 48 Am. Rep. 560; NelHs v. Lathrop, 22 Wend. (N. Y.) 121,' 34 Am. Dec. 285 ; Thompson v. Spencer, 50 Cal. 532 ; Cummings v. Newell, 86 Minn. 130, 90 N. W. 311 ; Davis v. Clark, 58 Kan. 100, 48 Pac. 563. It has been held that whether by this rule of relation the operation of the deed will be carried back to the date of the contract of sale, to the execution of the deed, or only to its actual delivery to the grantee, wjU depend upon the inteiit.ollhe .parties as shown by the transaction. 1 Devlin, Deeds "(2d' Kd.) § 262. But whatever test may be applied to this case, the result will be the same. It is necessary to protect J:he grantee in, the enjoyment of the property which he has bought^-iuid paid for, and it is necessary to carry out the manifest intention of_the parties that this deed should relate back to the date of the contract of sale.. The grantors purchased the land in controversy less than a week before the sale in question. The grantee paid interest on Jthe gur- ^Vl^^-a^^-^-*** chase-price from the date of the contract. A vendor, in the absence ^ f J) '^^^ ^ express stipulations therefor, cannot receive interest on the purchase- ^ pri ce and the rents a]so. 29'A.^& E. Encycl. of L. 708; Siemers y . Jl^'*-*^"-^ ^^ Hu1^t728 Tex. Civ. App. 44, 65 S. W. 62, 66 S. W. 115. The grantors knew when they executed the contract of sale, and on May 6, 1902, when they placed their deed with full covenants of warranty in escrow, to be delivered August 1, 1902, that tenants were on the land, but no reservation or suggestion was made that they expected the rent. Jj; /P «a*a>w must be presumed that they intended to convey by their deed ever y V/v,*^**^ r ight which its covenants covered . Placing a deed in escrow practically withdraws the land from the market, and renders the grantor powerless to convey or encumber it, Aig.Peop. — 24 370 DERIVATIVE TITLES (Part 2 so far as the vendee is concerned. After the grantee had paid t he pu r- chase-money in full, as agreed, including interest thereon from the date of the contract of sale, it would be manifestly unjust to deprive him of the rent conveyed by the covenants of his deed. Wecon- clude that under the facts and circumstances shown in this case the plaintiff is entitled to receive rents from the date of the contract_of sale, April 8, 1902, The order of the court granting a new tr ial^ is affirmed, with di- rection that on the further trial the views herein expressed be fol- lowed. All the Justices concurrmg.** BAKER V. SNAVELY. (Supreme Court of Kansas, 1011. 84 Kan. 170, 114 Pac. 370.) Smith, J. William Weisiger was the r ecord ownj f. of the lots^in question;^ On the 6th day of November, 1901, one Clarence Ford ob- tained a tax deed to the lots, and his right thereto was conveyed_^to John Baker, who subsequently, and on the 5th day of October, 1.905, brought this action in the district court of Finney county to quiet Jiis title to the lots against Weisiger and wife and others. Service was made by publication. On the 21st day of November, 1905, judgment: was rendered in favor of the plaintiff quieting his ti tle. On March 3, 1906, Weisiger and wife filed their motion and affidavit to open the judgment, and also filed an answer to the petition of Baker, in which they made a general denial of ,the allegationsof. the petition, and, for a second defense, alleged that tlie tax deed upon which the plaintiff based his title was null and void. O n April 21^ 1906, t he nio- tion to open the judgment was allowed. September 22, 1906, the Weisigers filed a motion to make S. C. Thompson a party defendant, which motion was sustained November 30, 1906, and summons served on Thompson on December 2, 1906. Permission was also given the Weisigers, on November 30, 1906, to file an amended answer and cross-petition, in which, in addition to the allegations of the former answer, they alleged that defendant Thom p- son j)urchased the property in controversy, X)n or about Jh£..31 st dayjif MaVch, 1906, from Noah B. MatkinSj to whom the plaintiff, John Baker, on the same day had conveyed the property; that both trans- fers were made with the full knowledge of -the interest of the ^Vei>i- gers in the property, and were made for the purpose of defrauding thepi out of their interest therein, and that such transfers were null and_void ^against them. 41 Cf. Oliver v. Mowat, PA U. C. Q. B. 472 (1874), where the grantor, between the time the deed was handed to the depositaiy and the performance of the condition, was allowed to distrain for rent -J ■^1 Ch. 2) EXECUTION OF DEEDS 371 On August 23, 1907, by leave of court and with the consent of tlie WeisigerS, Thompson filed an answer in which he admitted that he claimed an interest in the property, and made a general denial to the allegations of the cross-petition, alleging, in substance, that he pur- chased the premises from Noah B. Matkins on the 10th of January, 1906; that Matkins executed a warranty deed conveying the premises to him ; that at that time he was actually occupying the premises, and has ever since continued in the possession thereof ; that he purchased the property in good faith, after taking legal advice that the title to the premises was in Noah B. Matkins, and after being advised by counsel that the title to the property had been quieted in the action of John Baker against Mary H. Suavely et al. ; that he made a payment on the property, and took it subject to a mortgage for $1650, which he had since paid off and discharged ; that at the time of the purchase he had no notice of any claims by defendant William Weisiger, and bought the property in good faith ; that the tax deed in question was recorded in the office of the register of deeds, of Finney county on the 7th of November, 1901, that five years had expired after the recording of the deed prior to any pleading filed by defendant Weisiger against lliis defendant; and that tlie action, as to him, was barred by .the five-year statute oTlimitation. Trial was had before Charles E. Lobdell, judge pro tern., and the following findings of fact and conclusions of law were made : "Findings of Fact. "(1) That the defendant, Weisiger, is the owner of the fee_or patent title to the property in controversy, unless such title is extinguishedjjy the tax deed to Baker or by the judgment heretofore rendered i n th is case and subsequent conveyances which are claime d to have b een ac - cepted in good faith and in faith of such judgni^nt. "(2) That on November 21, 1905, the plaintiff, John Baker, obtained judgment in this court and in this cause quieting title in him to the land in controversy against the defendants, Weisi ge rs. "(3) That on November 28, 1905, John Baker executed a sufficient deed of general warr anty to the property in controversy to Noah B. Matkins and placed the same in esc row for future delivery with G. L. Miller. "(4) That on March 3, 1906, the defendants, William Weisiger and wife, file^, in., this court their motion, in proper fo rm, to open up the ju dgmen t thereinbefore ronde redjn favor of Baker as recitedjn find- ing No. 2. "(^JTliat thereafter, and on April 21, 1906, by the consideration of this court such decree and judgment was fully set aside and ope n- ed u£^ "^ That on March 31, 1906, the deed from Baker to Matkins was, by Miller, delivered to M atkin s. 372 DERIVATIVE TITLES (Part 2 ^ "(7) That on February 19, 1906, Noah B. Matkins, a single man, executed a sufficient warranty deed to the property in controversy to the defendant S. C. Thompson, which deed was placed in escrow with G7 L. Miller, as was the deed from Baker to Alatkms. "(8) That on tlie same date that the deed from Baker to Matkins was deHvered by Miller the d eed from Matkins to Thompson was by Miller delivered to T hompson . ^^"That^TEompson took possession of the property in controversy on January 6, 1906, and has been conti nuously in possession since that tim g. ' "(10) T hat the title of Baker at the Jime of_his_l udgment res ted upon the tax deed intro duced in eviden ce. "XTl) That a part of the consideration for the tax deed on which Baker's title rested was what was known as 'c urrent university ta x/ levied for the year 1896. "(12) That tlie so-called redemption notice for the lots in contro- versy, published by the county treasurer of Finney county, contained in the amount stated as necessary to the redemption of said lots the s um of thirty-five cents as costs for^ a dvertising-, and include d-it. for each of the tjiree years embrac ed in the noticejiecessary to red eem, ^ nd t hat the treasurer's fee of twenty-fi ve cents was als o inclu ded in t he notice for each "Conclusions of Law. "(1) That the tax deed to Baker J§. vnidahip and should be set aside because of the facts stated in findings 11 and 12. "(2) That the cre ation of the e scraaLjadth reference _to th e deed s fro m Baker to Matkins and Matk iTic; tn Thnmp'^nn wa^; nnt in ^,w delivery of the deed s. "(3) That the delivery of such deeds, which actually took place on March 31, 1906, caiijaotbemad^Jo. relate _back_s^ to reliev e Thonip- son and^Iatkina^Qi the.effe£EjQiJh5.nQti££jiii2pen.up4^ which motion was filed before the escrow was terminated. "(4) That at the time of the delivery of their deeds to them Matkins and Thompson had jconstructive notice, ^yhich was binding upon^tlTjem, of the motion tlien filed and pending in this cause to open up and va- cate the judgment, and that neither of them was a purchaser in good faith and inJaith af such jiidgm^niJ' The contention of the appellees is that the deed from Baker and wife to Matkins did not become a conveyance of the property until tlie actual delivery thereof on the 31st of March, 1906, that the deed from Matkins to Thompson did not become an actual conveyance until the same date, and that Thompson had constructive notice of the pendency of the action before the deed was delivered to him. Upon the other hand, the ^appdl^it contends that both th e_ dee d from Baker to Matkins and the deed from Matkins to him were_ex- ecuted long before the motion to reopen Jhe judgment was fil ed, on \ri^ Ch. 2) EXECUTION OF DEEDS 373 March 3, 1906.; that the considerations therefore were paid in part at the time of the execution of the contracts, and the remainder in full when the deeds were dehvered, on March 31, 1906; that they were in escrow wi^Miller frprn the time of their execution until their actual deUveix and that when the actual delivery was made, on March_31j 1906, the delivery dated back to the time of the original contracts and partial payments. These adverse contentions constitute the only sub- stantial question_ in the case. Whether a deed executed and placed in escrow relates back to the . time of the contract and execution thereof, so as to vest the grantee ^Ojug[,^„X-*.£g-un to spt R'iide the dea:££,^i]if;ting No finding is made by the court in this case in regard to any pay- ment made' by the appellant prior to the delivery of the deed from the party holding it in escrow, which was twenty-eight days after the filing of the motion to set aside the judgment. Nor does the appellant dis- close in his evidence how much he paid toward the purchase price, at or prior to the time of the execution of the deed. The evidence is that he made a payment. According to the evidence, he purchased seven- teen lots for $3500, nearly $206 per lot, and assumed the payment of a mortgage for $1650, which he afterward paid, leaving $1850, upon which "a payment" was made at the time of purchase, and the remain- der March 31, 1906. The three lots involved in this action would, at the price, amount to about $618, leaving over $1200, less such payment 374 DERIVATIVE TITLES (Part 2 as he may have made, and the amount of which he does not disclose, to protect himself against any failure of title. He was bound to take notice, at the^tipis Jie actually received his deed and made final pay- ment, of the proceeding to vacate the judgment quieting the title, and, as he has failed to show that he was unable to protect himself from any loss, if the title to the lots should eventually be shown to be in the appellees, there is no reason for holding that the second delivery of tlie deed related back to the time it was delivered in escrow. On the other hand, the invalidity of the tax deed is not contested, and the appellees' equities in the case are very strong. We think the court correctly decided the case. We have not considered various other assignments of error, as it seems to be conceded that ifie case must turn upon this one question. The ju dgment is affirm ecL*^ J *2..B^kman made a deed of certain premises lo CorKgnd delivered same to esteilo as an esc row^ to ljej]en\eretl_9v*^t-tQ ("or l iijiopMip l;itrei-s execiiflDn of a iiiortgajre on the premises to Beekniiin and the deposit of tlie sniiie^th ^ Westerlo. Corl made a deed of the hiiid.s to Frost. Corl then executed tlie Z/ mortfia^'e to lieekmaii, and upon delivering same to Westerlo received the deed to tlie premises, rs'either Heekman nor Frost had any actual notice. Ht'ekmaa having advertised the i>iemlses for sale under the provisions ofTTie niortgajie, Frost sued to eujoiu such action. The opiuion of Mr. Chancellor Keut iu part ;j^ Is as follows: "This case has led to the discnission of several important questions. (1) The first in order is, whether the deed from Heekman to Coil was duly delivered, and at what time, so as to pass the estate. The deed must he taken to have been duly delivered from the time it was handed to Corl hy Westerlo, with _ whom it had been deposited as an escrow. * * ♦ Every deed takes effect 4jU* /^« f rom the delivery] and the reasonable infereneg from th e fi^fiisMctioii. is to tuu- slcier the deed as operarnig onl.T-fl'Ohi the liTue of the | )eiforiiiaine uf the cou- { gition. and the actual delivery to tne grantee^ This is the Veneral rule, as stat- £^^^ «<<,~ce n ever so strong, cannot hurt or distu rb the rejnainder m Char les Lea.ch in this case; for that the remainde r is in hi m by a jtiL Le-aa tecedent an d paramou nt to the deed o f surrenxier. to which the assent of Sir Sim on Leach re. Iates,, so that it plainly o ver-reaches the relation . If an estate in remainder, or otherwise, ariseth to one upon a contin- gency 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 remain- Ch. 2) EXECUTION OF DEEDS 377 tier when vested in Charles, he is in immediately by the will, and out of danger of his remai nder being deves ted byjmy 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 dis- agreement to an estate, as upon an agreement, where the estate was conveyed without the notice of him that afterwards agrees or dis- agrees; if the husband discontinues the wife's estate, and then the discontinuee conveyes 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 wrought upon the first taking the estate from the discontinuee. And so is Litt. cap. Remitter. Co. 1 Inst. 356 b. The true reason is, because she is in of a title par- amount to the conveyance to which the disagreement relates, tho' 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 weTe"no surfehder before the birth of Char les the son, there ca n be none after by any constructi on ofla\v: for that wnnlH he in ^ vo idance of an estate settled by a titl e anteced ent to such .surrender^ 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 o f the deed__of sur render, the freehold and estate of Simon Leach did immediately ves t in Sir Simon^^ before he had notice, or gave any ex - press consent t o it ; and so it was a surrender before Charles was bor n, and then the contingent remainder could never vest in him, there being no particular estate to support it. A s urrender is a particular sort of conveyance that works by th e comm on law . And it has been agreed, and I think I can make it plain- ly appear, that co nveyances at the common law do immediately (upo n the exec ution of them on' the s^rantor's part) devest the estate outp f him^_ ^n(l put it in the party to whom such conveyance is made^^ though . in his absence, or without his notice, till some disagreement to such estate appears . I speak of conveyances at the common law ; for I shall say nothing of conveyances that work upon the Statute of Uses, or of conveyances by custom, as surrenders of copyholds, 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. I n conveyances that are by the common law, sometimgg a deed i s suffi c ient (and in surrenders sometimes words without a deed) withou t further circumstance or ceremony; and sometimes a further act is requisi^ to give them effect, as l ivery of seisin, attornm e nt, and some- times entry of the part^as in case of exchanges ; and as well in those conveyances that require a deed only, as those which require some fur- ther act to perfect them, so soon as they are executed on the grantor's 378 DERIVATIVE TITLES (Part 2 part, they immediately pass the estate. I n case of a deed of feoffi-n ent to divers persons, and livery made to one f eoffee in the absence of t he rest, the estat^e vests in them all till dis sent, ' 2 Leon. 23, Mutton's Case. An"d so 223,~an estate made to a fem e covert by livery, vests injier beforeaiw agreement of'the h usbancl,T ro. 1 inst. 356a. So of a grant of a reversion after attornment of the lessee, passeth the freehold by the deed, Co. 1 Inst. 49a; Litt. sect. 66. I n case of a lease, the lea see h ath right immediately to have the tenements by force of th e lease. So in the case of limitation of remainders and of devises, (which tho ' a conveyance introduced bv the statute, yet operates accordrng to th e common law) the freehold passeth to the devisee before notice or as- sent^ I do not cite authorities, which are plentiful enough in these matters, because they that have argued for the plaintiff have in a man- ner agreed, t hat in conveyances at the common law, generally the e state p asseth to the partv. till he devests it bv some disa gr eement . But 'tis objected, that in case of surrenders, an express assent of the surrendree 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, t hat an assent i? not only a circumstance, bu t 't is essential to all conveyances; for they are contracts , actus contra actum, which necessarily suppose the assent of all partie s : 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 as'^ent nf the pnrty thaj_takes. i s implied jn all conveyances, and this is by intendment of law, which is as stron^as the expression of the party, till the contrary appear s; stabit p'sumptio donee probetur in contranum. 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; w hereas if an express assent of the surrendree were a circumstance t o make it effectual sure he would have mentioned it. and not marshal l'd i t with such conveyances, as I have shewn before n eed no such assen t, nor anv thing 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) t hat conveyances work immediat ely u pon the execution of them on the part of him that makes them. I wilLnow endeavor to shew the reasons, why they do so^ immediately ve st the estate in the party without any express consent ; an d to shew that these reasons do hold as strongly in case of surrenders, as of any Ch. 2) EXECUTION OP DEEDS 379 other conveyances at law; and they consider the inconveniences and ill consequences that have been objected, would ensue, if surrenders should operate without an express consent ; and to shew, that the same are to be objected as to all other conveyances, and t hat very odd c on- seq uences and inconveniences would follow, if surrenders shou ld no t operate without an express consent of the surrendr ee ; and then shall endeavour 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 reas ons why conveyances do deves t the estate out of the granto r (j\ju^.^t..fry^ before aay expres s assent or perhaps notice of the grantee, I concei ve t o be these th ree : " ^ Fjrst^ because there is a strong intendm ent of law, that for a man to (^ J ta ke an estate it is for his benefit, and no man can be supposed to be u nwilling to that which is for his advantaee . 1 Rep. 44. Wiiere an act is done for a man's benefit an_agreemern is implied, till there be a di s- agreement. This does not only hold in conveyances, but in the gift of goo^s, 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 e state n iadejlg^a fem e co vert vests injierjim- m edia tely, tij^i the husband disa grees . So in my Lord Hobart, 204, in Swain and Holman's Case. No w is there not the same presumptio n a nd a ppearance o f be nefit to him in reversion in case of a su rrender ? Is it not a palpable advantage to him to determine the parVicuTar estate, and to reduce his estate into possession? And therefore, why should not his assent be implied, as well as in other conveyances? ^^-^ Se cond ly, a second reason is, b ecause it would seem incongruous and (^ ^ absuTcT, TTTa! when a conveyance is compleatly executed on the grantor' s part, yet notwithstandinfi the estate should continue in hirn . The words of my Lord Coke (1 Inst. 227a.) are, that it 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. T here n eeds only a capaci- *Xl2J^'l^J^'s will to take is intended. Why should it not seem as un- reasonable, that the estate should remain in Simon Leach, against his own deed of surrender? F or in case of & surrender, a deed, and some - times w ords without a deed, are as effectual as a livery in case of a feoff ment. Thirdly , the third and principal reason, as I take it, why the law will not suffer the operation of a conveyance to be in suspence, and to expect the agreement of the party to whom 'twas made, is Jo prevent t he uncertainty of the freehold. This I take to be the great reason why a freehold cannot be granted in futuro, because that it would be very hard and inconvenient that a man should be driven to bring his praecipe 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 380 DERIVATIVE TITLES (Part 2 to a stranger, by reason of his agreement to some conveyance made be- fore the writ brought; for otherwise there is nothing in the nature of the thing against conveying a freehold in futuro; 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 praecipe 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 puis darrein continuance, and defeated all. S o that the same inconveni ence, astothe bringing of real actions, holds in surrenders, as in other co n- v eyances. And to shew 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 imcertainty, as a stranger that demands right should not know where to fix his action. A multitude of cases might be cited ; but I will cite only a case put 1 Hen. VL 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, tliat if a praecipe had been brought against Sir Simon Leach, might not he have pleaded this disagreement, and so abated the writ by nontenure ? 'Tis true ; but that inconvenience had been no more than in all other cases, a plea of non-tenure; and it must have abated immediately; for he could not have abated it by any dissent after he had answered to the writ. Whereas I have shewn it in tlie 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 tlie mischief to the demandant is not near so great, nor the hundredth part so proba- ble. Now I come to consider those inconveniences that have been urged that would ensue, if a surrender should work immediately. It has been said, that a tenant for life might make such deed of sur- render, and continue in possession, and suffer a recovery; and this might destroy a great many recoveries, and overthrow marriage-settle- ments, and defeat charges and securities upon his estate after such deed of surrender. T hese, and a great man y more such lik e mischiefs, may be .instanced i n surrender s 1 b ut they hold no less in any other conveyance s^^ whereby a man may (as hath been shewed before) devest himself of the estate, and yet con tinue the possession ; and in this case the assent of the sur- rendree, tho' he doth not enter, would (as it is urged of all hands) vest the estate in him, Hutton, 95 ; Br. tit. Surrender, 50 ; tho' 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. Ch. 2) EXECUTION OF DEEDS 381 And this I think sufficient to answer to the inconveniences objected on that side. / No w let us^ ee__what inconveniences and odd consequences would f ollow, in case a sm render could not operate till the express assent of t he surrendree. t herTno surrender could be to an infant at least, when under the age of discretion ; for if it be a necessary circumstance, it cannot be dispensed with no more than livery or attornment. So tho" 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 re- version immediately expectant, because it must enure by surrender. I f there be jointenants in re version, a surrender to one of them enures t o both. 1 Inst. 192 ^_214 a. so the re, as to one moiety, it operates wi th- o ut assent or notice . Suppose tenant for life should make livery upon a g rant of his e state to him in reversio n and two others, and the livery is made to the other two in the absence, and without the notice of him in reversion, should th e livery not wo rk immediately f or a third pa rt of the estate? andjf^it do th, it must enure as a surrender for a third part . So Ts 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 ^ sufSr.ipnt. 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 books, and the form of pleading surrenders. Co. 1 Inst. ZZ7 b. First, a surrender is a vielding up of th e estate, which dro wns by yLixy^/yjLtr^ rnutual agreement between them. Tenant for life, by agreement of . n ^y *■ j him in reversion, surrenders to him ; he hath a freehold before he en- OiMf^*-'*^'^^ ters. And so Perkins, in putting the case of a surrender, mentions an agreement ; and divers other books have been cited to the same purpose. To all which I answer : No doubt but an agreement is n ecessary. But the question is, wheth - p * -^ er an agreement is not intended w here a deed of surrender is made in . >*^*^ -'^ the absence of him in the rever sion ? whether the law shall not suppose C-^t-c-f * an assent, till a disagree ment appears: Indeed, if he were present, he must agree or disagree immediately and so 'tis 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, 'tis void; car il ne poit surrender a luy maugre son dents. And that is certain ly so in surrend ers, an d^ll othfr rnriY(^vances.;.i.o£.a^m an cannoL estate"put mto him mspight of hij 382 DERIVATIVE TITLES (Part 2 But I cannot find any of the books cited that come to this point, th at whereV_d eed o i surrender is executed^ without the notice of him in re- ve rsionT^at it s lialLpass hoTHing till he con sents l_so that It cannot ^e said, that there is any express authority in the case. Now, as to the form of pleading of a surrender, it has been objected, that a surrender is always pleaded with acceptance ; and many cases have been cited of such pleadings, Rastal's Entries, 176, 177 ; Fitzh. tit. Barre, 262, which are cases in actions of debt for rent, and the de- fendant in bar pleads, that he surrendered before the rent grew due, and shews, 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 I think fully answered at the Bar by my Brother Pemberton ; that those actions be- ing in disaffirmance of the surrender, and implying a disagreement, the defendant had no way to bar and avoid such disagreement, but by shewing an express agreement before. The case of Peto and Pemberton in 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 'tis pleaded, that the plaintiff demised the land out of which the rent issued, to the avowant. The avowant replies, that he surrendered dimissionem praed. 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 tlie surrender, then it is not pleaded. So is Rast. Entries, 136. T he lessee brou ght an action of covenant a gainst the lessor, for entering upon him, and ousting 6t him.^ ~ The defendant pleads a surrender in bar, and that witho ut any agreement or_jLcceptance^ In Fitzherbert, tit. Debt, 149, where the case 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 plead- ing any agreement, notwithstanding that the action was in disaffirm- ance of the surrender. Therefore as to the argument which has been drawn against tlie form of pleading, I say, that if an agreement be necessary to be pleaded: then, I say. First, that 'tis answered by an implied assent, as well as an express assent. I would put the case f^uppose a lessee for life should make a lease for years, reserving rent; and in debt for the rent the lessee should plead, that the pl aintiff befo re the rent g rew due surrendered t o him in reversion, and he acce pted i t, and iss ue 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 absence; would not t his _turn th e Prg_9f_upon the plaintiff ,_ thaliie in r eversion d isagreed to this su rrender? for sure l ynhis ag ree ment is^ prim a facie presuroed^-and then the rule is, stabit prsesumptio donee probetur in contrariuin. Ch. 2) EXECUTION OF DEEDS 383 Again, I say it appears by the cases cited that it is not always plead- ed and when pleaded 'tis upon a special reason, as 1 have shewn be- fore, 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 'tis implied in pleading sursumreddidit ; 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. Now why should not sursumreddidit 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: f^T j^ ^'^- s ent be a necessary requisite, the n 't is miplied by saying sursunire .d - didit, as livery is in feoffavit : and then to add the w ords of e xpres s c onsent is as superfluous, as to shew livery after saving feoft'av it. And again, if it v>^ere always necessary, it is sufficiently answered by an assent intended in law : for presumptions of law stand as strong till the^ontrary appears, as an express dec larat ion of the party. NoTTv. A writ of error was brought in tlie~King's Bench upon this judgment and it was there affirmed by the unanimous consent of the whole Court. Memorand. Anno quarto Willielmi & Mariae: this case was brought by writ of error into the House of Lords, a nd the judgme nt w as there r gYersgdjipon the reasons m t he aforesaid argument .*^ 43 See Standing v. Bowring, L. R. 31 Ch. D. 2S2 (1S85) ; Mallott v. Wilson, [190:{| 2 Ch. AOL J, /—■ •*Tt~i.s true, that judges have said, with more solemnity than I think the occa- --^-«-^ /sion wjirraiitiHl. that no one cnu linve an testate thrust ui.oii liim againstJijs vvUl, and that, eniis.M|uciit ly a dclivci-y of a dct'd to a st i-a.u.L-'or, for the us(> of the graiiteo, is of no crfcct, until assented to iiy the l atter . How uuieh weTiHit this ar.yunient is entitled to, may be judi^ed of Ij.v the fact that estates are every day thrust u|ion people by last will and testament; and it would certainly sound somewhat novel to say that the de\ises were of no effect until assented to hy the devisees. Ifji /ather should die testate, devisiui^ an estate to liis dau^diter, and the latter snouTTTaTterwa rd die witliout a knowiedjie' of_jQie will, it would ha Idly he contended tiiat the devise heeanje void for want pf Mf - ceptance, and tliat the heiis of the devisee nnist lose rhe e state . Neither will it be detned that eciuitahle estates are every day thrust upon people liy deeds, or assijiuments, made in ti'ust foi- their benefit, nor will it be said thatsuch be neticiarie s take nothing' until they ass^yj. Add to these the esiati's tliat are tlu-ust upon i)eople by the statute of des-cent, and we bej:in to estimate the value of the argument, that a man sliall not he made a property holder against liis ■will, and tliat courts slionid he astute to shield him from such a wrong. It is certainly true, as a genej aJ rtde. th at acceptance, by the Ljrantee, i s necessar y to constitute a good delivery, for a man may refuse even a 'sWl^ Kut that such acce]»tance need not lie manual is e(]ually ti'ue, and it is also certain that suu- plejyissent to the conveyance, given even befoi-e its (-xi-eution, is a sulliciji]jt acceptance. Thus, where a vendee had fully paid for the land and was entitled t6"a conveyance, and liis vendor, witliout his knowle slio uld be in - /^ £.,^^_JU^ e ffectual till an~express consent of the surren deree, " and that mo st 5 disa_strous~effects upon estates and conveyancing in England would en- ,s^,tri'^.>C«^v-Zt sue, unless her courts adopted and upheld his absurilily. It is said that J one error surely gives rise to another and a greater. This saying was never more aptly and forcibly illustrated, than by the fantastic feats which the learned justice makes the common law, the sober common sense of~ages, perform by way of getting the title back again in the grantor in case the grantee refuses to accept the conveyance. He says that after, by this kind of one-sided contract, it has got into him with- out his knowledge, it remains with him without his consent until he absolutely rejects and spurns the offer, and that then, by some magi- cal power of the law, such rejection, without deed or other writing, becomes an instrument of conveyance, by which the legal title to land is conveyed from one who has it to one who has it not, against the express wishes of the latter and in despite of his own deed, the high- est and most solemn act known to the law, by which he could rid him self of it. It is not surprising that the learned and logical Chief Jus- tice Gibson, in Read v. Robinson, 6 Watts & S. (Pa.) 329, while com- menting upon what he calls "the masterly argument of Justice Ventris, in Thompson v. Leach," says, that "t he diffic ulty is to comprehencijiow the remitter can take^effect without _displacin^ intermediate interests springing from the rejected deed;" and then, as if in despair of ever comprehending it, he dismisses the subject from his mind by saying, "but the authorities conclusively prove that it may." All agree that. neither th e grant or nor the stranger w ho consents to receive and hold the deed, can, by the ir acjs, bind the gra ntee, and that the latter may, on receiving notice 6T^, r epudiate it altog ether . If the title vests in the grantee at once, it must, of course, vest according to the terms of the conveyance, and in the case of an absolute conveyance, he would . have an absolute title. If, after delivery to the_stranger^_and_befjQre notice to the grantee, a creditorjof the latter should, fiisten upoj.l_iIie property by execution or attachment, no reason can be given wh y h e could not hold it. If it is the property of the grantee, it follows, as "^ *" of course, that the creditor would have this right, and that he would at once acquire a lien to the extent of Kis demand. Suppose, after this is done, that the grantee, on receiving notice, refuses to accept the conveyance, what becomes of the property? Does th e refusal unbi nd an d get the prop ert^_fj;: £e from the seizure of the cred itors, and rem it t he title at once back tojthe grantor ? Dr does the intendment of Jus- tice Ventris step in, in behalf of the creditor as well, and say, because the grant is presumed beneficial to the grantee, and he might, at some 390 DERIVATIVE TITLES (Part future period, accept it, that therefore he shall be deemed to have accepted it before the seizure, and at a time when he was utterly ig- norant of it, and thus enable the creditor to witlihpld the property from the grantor, by which means it would happen that although_ it jvas neither bought nor sold, the grantor would, without consideration, lose it, and_the grantee enjoy the full benefit of it on the same terms? Knowing of no rational or satisfactory answers which can be given to these and various similar questions which will readily suggest them- selves to the reader, I leave them to be replied to by those who main- tain that the title to property, real or personal, m ay, without w ords written or spoken, or other act of transfer, be thus mysteriousl y_passe d and re£assed between parties by contract. T deny that it ni^^jj___be. It seems to me very plain, t hat it does not pass in^ fact untij the grantee has actually consen ted to receive it; and, as of c ourse, th at it . remains wi_lli_the_grantor, who is unable, without such con sent, to vesl / iTin the gra ntee . No other conclusion is consistent with the doctrine * that a grant is a contract, and that the assent of the grantee is neces- sary to give it validity. The justice assumed the question in contro- versy by saying that the execution and delivery of the deed to the stranger passed the title out of the grantor, and then he was under the necessity of resorting to these further absurdities, in order to account for it; for he says, "that it is not a slight matter, but what the law much considers, and is very careful to have the freehold fixed," and not "under such uncertainty, as a stranger that demands right should not know where to fix his action." 1/ he had considered that the op- eration of the deed was suspended, or that it did not take eflfect until the grantee had assented, he would have been saved the trouble of drawing so largely on his imagination to show where the title was, and how it was thereafter to be controlled. I t is a matter of no sma ll mnmpn j- , anH nf just pride to the bench of England, that Ju stice Ven - tris, at the time he wrote his wonderful argument, dis se nted, and that t he other members of the Court of Common Pleas, viz .^ ^olle2ci.en, Chief Justice, and Powell and Rokeby, Associates, were of opini on i n the case, "that there was no surrender till such time as the su r- renderee hadn otice of the deed of surrender and had agreed to i_t ." and tliat it was so adjudged by that court ; and that the case was after- wards taken by writ of error to the King's Bench, of which Lord Holt was at the time Chief Justice, and the judgment of the Common Pleas "wa s there affirmed by the unanimous consent of the whole cou rt." It w as afterwards brought by error into the House of L ^nrHs, where. i/Ct- ^^ it is said, upon the reasons contamed in Justice Ventris' argumen t. xl^ /^^ the j udgment pronounced in both superior courts was reversg.d . Thus y(Jl^ y^ "'we have on. the one side the legal learning, and almost tne unanimous ■ "^ "TjLt opinion of the courts, and on the other the judgment of reversal of the House of Lords, the great majority of whom knew very l ittle, and cared less, about the correct settlement of legal principles. rU'-y , fi ^.^^^ c laimed bv the demandant, and remained there several v^^s, and un til ^^ "^ r emoved bv the tenants a short time before this suit was brnno-ht The demandant asked the judge to rule that it was a question of fact, on all the evidence, whet her th e tenants' westerly line w as to be drawn a t right angles to D ix Street, and a sked a finding in fact that it was to f ^ v/ b e drawn at an ang le to said Dix Street, so as to strike said street sixty [(jtf^/^^^ a nd a half feet from Wachusett S tree t. The judge ruled, as matter_o f q ^ m ^j^ law.that the said line was to be drawn a ^angh^ngle to Dix Street ,/y^ >,^ without, regard to the evidence outside of tn^^ea?; ana lound for the ^^ >t«*'-*'*'^ tenants. The de mandant alleged exceptioii_s - C^^-y^^^*-^ /^^ W. Allen, J. The courses of the lines on Wachusett Street and Dix Street are fixed on the land, and fix the angle contained by them. Th.£££US_.pothing on the_land to fix the course of the second or of the t hird Ij ne^fqrjt does not appear that the line of the land of the heir s of Henry Gou lding mentioned is fixed. The description in the deed gives the length of the first, second, and third lines, which there is noth- ing to control, and the angle contained by the third and fourth lines. There is go difficultv in locating this description upon the land, and it makes the length of the fourth line eightv feet and fifty-two one - ti undredths of a foot, and the contents of the lot 9101 scuare feet . The description iii The deed gives the length of the fourth line as "si.xty- one feet more or less," and the con tents of the lot as "7770 feet more or less." T hjs disc repancy of one third in the length of the front line of * "J t he lot, and one fifth in its content-^^ could not have been intended, a l- 5<c^ /i.*-*-*^ though the length and dimensions are only approxiniat^ely given, a.nd /^^aM a^^Cu^^ i t__is obvious t , hqt thf-rejs_a. mis{:ake^^ither in the angle given, or in ^ the I fngth of the fourth line. We do not regard the statement of tlie quantity of the land as very 7 material. It is the computation of the contents of the figure described in the deed, but which cannot be produced on the land. The fact th at t o give exactly the quantity of land mentioned when the other partic u- l ars of the description are applied to the land, the third line must inter - s ect the fourth at an obtuse ano-le. and the fourth line must be six tv f eet and a half in leno-th, p^ oes to show, what is otherwise sufficientlv apparent, that no such discrepancy in the length was intended . Xhe re w as a mis take e itlier m the_imgl£^iven or in the length of the fourt h lin e- they cann ot both be applied to tli£-land. though either of them /' ""^ mayl>e. and the question is which must be rejected . [ "^ ) The question to be determined is theiiitentiori_shown in the languageV^J___,/ of the deed, in the light of the situation of TITe land and the circum- , stances of the transaction, and sometimes with the aid of declarations 414 DERIVATIVE TITLES (Part 2 and conduct of the parties in relation to the subject-matter. The rule, /^V) ILi t hat monuments, in a description in a deed, control courses and dis - % ^ d ances, is founded on the consideration that that construction is mo re tl vj^.xtr^*'*^ likely to express the inte ntio n of the parties.. The intention to run a -^ line to a fbced^bject is more oDvious, and the parties are less likely to be mistaken in regard to it than in running a given distance or by a giv- en course. But, where tjie^circum stances show tha t the controlling in- tention was otherwise, the rule is not applied. Davis v. Rainsford, 17 Mass7 207; Parks v. Loomis, 6 Gray, 467; Murdock v. Chapman, 9 Gray, 156. So far as the question is as to the relative effect to be given to a course and a distance, neither has in itself any advantage over the other as showing a governing intent. Whether the one in a given_ £ase shall outweigh th e other, as showing the inte nt ion of the parties, mus t depe nd upon th e circum stances existing at the tim e. The angle formed byTDix Street and Wachusett Street is an acute angle ; the lot was a corner lot, the front on Dix Street. In laying it out, it would be natural either to have the third line in the description parallel to Wachusett Street, or at a right angle with Dix Street. The latter is for the advantage of the purchasers. The deed shows that the parties had that, and not the other, in mind. Not only is the third lin e not_said to Jbe_parallel with Wachusett Stre et, but it ap ^ars.-t£ at it "wasnot intended to be. I'he parties understood that the angle at the corner of the streets was an acute angle, and that making the other angle on Dix Street a right angle, would require the line on that street to be longer than the rear line, and they said that the angle should be a right angle, and therefore that the line should be longer. It wa s n ot merely giving a course to the tliird line, but it was expresslv fixing t he shape of the lot . The length of the fourth hne was left indefinite, and to be determined by the angle which was fixed. It is true that th e jSfi ven angle requires a longer line than was supposed ; but the angle a nd the shape of the lot, and not the length of the line, appear to ha ve b een the controlling considerations. See Noble v. Googins, 99 Mass. 231. It is contended by the plaintiff, that it is a case of latent ambiguity, which may be explained by parol evidence. If the difference were be- • — T\. tween a given course of the third Hne and measurement of the fourth, it might present such a case, but neither is given. The course of th e t hird line was not run, but it was to intersect Dix Street at ^ right-an - gle ; th e fourth lin e was not measured, but its length was^stimated^nd ap parently estimated as the dista nce bet ween the point where th e third li ne must 'meet Dix Street to form a right angle with it_and__th.e first c orner. A mistake was made in the estmiate (^\ the distanc e. It would seem that the anglewa^oTnalerTM^~particuTar Th" the description of the lot, that t he expressed intention in regard to it could not be mad e doubtful by a mjs t ake in the estimate of the length of the fourth jine, which was determined by it ; but it is not necessary to decide this. As, V the case stood at the trial, and upon the evidence-JifiEered, the cou^t ^i^ ^iJ^ Cll. 3) THE PROPERTY CONVEYED 415 O ,^^^^ p rop.eiiv ruled t^ r^^ ^g ^^\\f^ ^f 1,1^, t1-|^ third line \^^^ fn V»p ^ t a right f^f (r^./fiA4^ angle with Dix Street, without reg^nrd to th(^ evidence outside the deed . , , p j The plaintiff relied upon evidence that the executors of Goulding, ^-"^^ '— *fni t, ^yC^^Ux-f^CJi/y^ . DERIVATIVE TITLES (Part 2 TEMPLE V. BENSON. / le Jndicinl Court of Massachusetts, 1912. 213 Mass. 128, 100 N. E, Go.) F ejition, filed J n the Land Court on September 8, 1910, for the re g- i stration of the _title j;o certain land on East Quincy Street itl_ ^JorLh A dams. In the Land Court the case was heard by Davis, J. T he only issue at Vie tri al was the position of the_sQ uther ly li ne of the petiti o ner's lan d as sfhmn on_ the sl seven rods to said East Quincy Street: th ence easterly on the sout h AiiS.rKOP. — 27 418 DERIVATIVE TITLES (Part 2 -g^' side of said street, about eight and one- fo urth rods to place of begi n- ning , except what 1 have sold pfij^taining'tojJti is lot ^f^ lani d to Fred E . Bensonrof^'|ap^^;^oil'^]Ai lam ^ wi^ degH Tdated Jun eTstT 1890." "In ISyTTneither^East Quincy Street nor Summit Avenue was a pub- lic street. Kemp had opened East Quincy Street as a private way. After 1£79 bo th^ streets _ffi£r e public st reets, East Quincy Street being two rods wide. The bill of exceptions states : "T he point of in tersec- tion nf V.^'^f Q m'nry St reet, and Mechanic Street, or Summit Avenue, in J ulXx_lBZQ,^wa s agreed to a s the point m arked on th e annexed sKetc h , at, the northeast corner of the lot at the intersectio n of ^^'^^ Qninry Stree t and Mechanir St^p pt__anH ha s never been changed and is the point of intersection of the south line of East Quincy Street and west line of Summit Avenue, as laid out by the City of North Adams, in 1879." The westerly boundar y line of the locus was fixed by a stone wa ll wli ich wasj jara Tlel to S ummit Avenu e. The petitioner conte nded that the so utherly line of East Quin cy Street as laid out by North Adams^wa? in a Hiff^xen Llocation fromj jie southerly Jin£_ of East Qumcy Street as it was understood tn he hpfn re t hat time. The resp ondent contended that that line had not been changed. Both parties offered evidence in support of their contentions. The judge ruled as follows, subject to an exception by the respond- ent : "The desc ription in the petitioner's deed cannot as a phys ical matte r be Htera lly applied in al l its details to the ground. If the wes t- erly end of the southerly line be taken fi*^ rnntpnrlpfj for by the re - s ponden t at a point on the Canedv la ^rl Hi'^tant pyart ly seven rods frg pj the southerly line of East Qui ncy Street, then the southerly line will exceed eight rods in length. If on the other hand the westerly end of said southerly line be taken at a point on the Canedy land distant ex- actly eight rods from its point of departure, on the westerly line of Summit Avenue, then the westerly line on land of Canedy and Porter will exceed seven rods in length. * * * I rule that the deed is a m- bigiimisJ' Subject to an exception by the respondent, the judge admitted in evidence, "so far as it tended to show the location of East Quincy Street," a deed by Kemp to one Frost dated in 1872. According to the description in the deed, the north line of East Quincy Street extended over the east side of Summit Avenue and ran south 79 degrees east, and the street was three rods wide through the land of Porter. Subject to a further exce ptionby the respon dent, the judge allow ed Tinne yTcalled^y the p etitioner, to testlty^^ "that atl he time he bo^h t hisHa nd, previou slxld£Scribed, from K emp and b ef ore the deed wa s drawn, he went on the ground with Kemp ; tliat they began at the north- east corner of the lot he was to buy, at the corner of Summit Avenue and East Quincy Street, and measured south on Surrtmit Avenue, six rods ; that from there they tu rned a right angle, b ecause Kem p stated he wanted 'to measure at right angles so thai all the lots would come Ch. 3) THE PROPERTY CONVEYED 419 squar e,' and measured e ight rods to the old stone wall on.Canedy land; t hat they then measured_ .dQ\yn the line of Canedy iand-sevea rods and stopped there, in nrHp]-, Kpmp c;nir1 to leave roo m for a st reet, Kemp stating he mi^ht throw the street to the north or to the south, and t hat he would deed by the st reet so that if the street went to the north Tmney would be the gainer ; that the measurements stopped about one rod" short of the nearest wheel track, a nd tliat two or three days late r t he deed was drawn, ex ecute d_and^ deli vered ." The jud^efoun4^_forthe_pet^^ the respondent alleged ex- ceptions. BralEy, J. The petiti oner by mesne conveyanc es and t he respond- _ ent by direc t grant d erive title to their respective lands which are con- tiguous on the south from a common grantor Sylvester A. Kemp, and a s the duly recorded deed from him to Tosep h Ti nne y nndpr whnm th e petitioner claims, an tedates his deed to the re spondent , it follows upon comparison of the descriptions, that wh en the position o f the d is- pu ted southerly line of the petitioner's lot has been ascertained the northerly line of the respondent's lot also will have been defined, an d t he controversy determined. It is a familiar rule in the construction of deeds, that, where the land -i^^ ^ conveyed is described by courses and distances and also by monuments which are certain or capable of being made certain, t he monuments govern, and the measurements if they do not correspond must yield. Howe V. Bass, 2 Mass. 380, 3 Am. Dec. 59 ; Pernam v. Wead, 6 Mass. 131 ; Mann v. Dunham, 5 Gray, 511, 514; George v. Wood, 7 Allen, 14; Morse v. Rogers, 118 Mass. 572, 578; Percival v. Chase, 182 Mass. 371, 65 N. E. 800. In its application natural or permanent object s, s uch as streams o r rivers and the sh ore of the sea , nr hig hways o r other lands, or artihcial land marks or si gns such as fences, wall s, a Ime, a building^ or a stake an d stones, are to be treated as mon uments or boundaries. SS torer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155 ; King V. King, 7 Mass. 496; Flagg v. Thurston, 13 Pick. 145; Whitman v. Boston & Maine Railroad, 3 Allen, 133; Paine v. Woods, 108 Mass. 160; Boston v. Richardson, 13 Allen, 146; Needham v. Judson, 101 Mass. 155; Pernam v. Wead, 6 Mass. 131 ; Smith v. Smith, 110 Mass. 302; Charlestown v. Tufts, 111 Mass. 348; Frost v. Angier, 127 Mass. 212. And their identity may be established by extrinsic evidence. White V. Bliss, 8 Gush, 510, 512. The only exception recognized i s. where, by strict adherence to monuments, the construction is plain ly i nconsistent with the imgn^gjj^ o TThe parties as expressed by all the terms o f the grant. Davi^^^ainsford. 17 Mass. 207: Murdock v. Chapman, 9 Gray, 156; George v. Wood, 7 Allen, 14. T he petitioner had the burden of proving himself entitled to regis- t ration of the premises as described in the application. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 95 N. E. 938. On the face of the deed no uncertainty as to the distances or the lo- cation of the monuments or boundaries is disclosed, yet upon applying 420 DERIVATIVE TITLES (Patt 2 the description to the land it be came apparent that the southeriy lin e m ust run at a njs^ht an^ e westerjy frorn^ the sta kes and stones in th e west side of Summit Avenue "to land formerly owned by J. M.^C an- edj^ o r the call for a distance of eight rods cannot be satisfied . But if, as claimed by the respondent, this line should run from the stake and stones to the Canedy land, the abuttal or boundary on the west, at a point distant seven rods from the south side of East Ouincy Street, the boundary on the north, it would exceed eight rods, and the ar ea of jhe petitioner's land called for by his deed w oul d fall correspon d- i ngly short, as is clearly shown by the first sketch or plan forming part , of the exce ption-s . The parties agreed that, as marked on the plan, the starting point of the lot was the northeast corner at the intersection of East Ouincy Street with Summit Avenue, w hich never had been changed , ^nd jjie r espondent's exception to the admission of the d e_e_d of K emp to Pat tie D . Frost would seem to havebecome injtnaterial. It was , howeyer, properly a d mitted ! St the date of the deed to Frost East Quincy Street, although a private way opened by the grantor was a boundary common to the land conveyed to her as well as to the tract, a part of which was later deeded to the respondent, an d grants of adjacent pre m- i ses even between strangers are admissible where the location of t he I gnd for which registration is sought is in disput e. Sparhawk v. Bul- lard, 1 Mete. 95, 100; Devine v. Wyman, 131 Mass. 7Z. The northerly boundary and point of beginning being certain, the easterly boundary was the west side of the avenue, measuring six rods to a stake and stones. The termini and length of the first course were thus fixed, and th e_ stak e and stones from which the seco nd or southerly co u rse sta rts l ocat es andjcont rols the. easterlY_end. iTo fur- ther description is given, and the pres umption is that this cour se , wh at- everJlijeJuterior an gle m ay be, ran straig ht to the land on the west, al- though it_coiild^not b e (Reflected by parol evidence to ajpoint north of t he Caned y land . Allen v. Kingsbury, 16 Pick. 235; Jenks v. Morgan, 6 Gray, 448; Hovey v. Sawyer, 5 Allen, 554, 555. Henshaw v. Mul- ens, 121 Mass. 143. The a ngle ofdeparture however is not given., a nd, a s the southe rl y line cla imed jjy eac h party is not irregular, but when projected extended directly from landmark to landmark, a materi al d iscrepancy in the measu rem ent of the third or westerly course wou ld b e caused wh ic hever po siti on is taken . A latent amb igu ity, as th e j udge properly ruled, h a d been developed which could be removed only by proof of extrin sic facts . Frost v. Spaulding, 19 Pick. 445, 31 Am. DecTl 5U ; Stone v."Clark, 1 Mete. 378, 35 Am. Dec. 370; Stevenson v. Erskine, 99 Mass. 367; Miles v. Barrows, 122 Mass. 579; Graves v. Broughton, 185 Mass. 174, 69 N. E. 1083 ; "Haskell v. Friend, 196 Mass. 198, 81 N. E. 962 ; Weeks v. Brooks, 205 Mass. 458, 462, 463, 92 N. E. 45. Compare Hall v. Eaton, 139 Mass. 217, 29 N. E. 660. It appears from the chain of title that Kemp, when the owner of the entire tract shown by the plan, first conveyed the portion lying north - Ch. 3) THE PROPERTY CONVEYED 421 erly of the respondent's land to Joseph Tinney, and the declarations, of Kemp to Tinnev made while measuring the land , and contemporane- ous with the giving of the deed, "that from there/' meanin g the st ake and stones, "thev turned a right angle because Kemp stated he wanted t o measure at right angles so th at all the lots would come sq uare, and measured eight rods to the old stone wall on the Canedy land," was c learly admissible. Abbott v. Walker, 204' Mass. 71, 7Z, 90 N. E. 405, 26 L. R. A. (N. S.) 814; Blake v. Everett, 1 Allen, 248; Davis v. Sher- man, 7 Gray, 291. The su bsequent_ conyeyance _£OsggiP_to the re- sp ondent also shows a rectan gular lot, and thedescription is co nfirma- toj-y of the grantor's previou sly e xpr esseid purpose in fixing t he s hape o f the lots, that the respondent's northerlv line should run at a right . . 4jji-^ ' angle with the wes terly sid e ot Summit Avenue, and not_at an acute ^ "^ ^HK'^.S- ^.^ th£^ respond ent cont ends. The adverse finding of fact of which the respondent complains, that the southerly line should be established as contended for by the peti- tioner, having been warranted by the evidence, is conclusive, and the d ecision that the petitio ner had theji^i^to have tusjitle ^onfiimed^ and reg^istered as described in the application shows,, no error of law . American Malting Co. v. Souther Brewing Co., 194 Alass. 89, 8Q N. E. 526 ; Rev. Laws, c. 128, § Z7, ^ / ^^ ^^/^^ Exc eptions ove rruled. (jfictit^^^,^^^^,^/^'^ ^\ _ examine. The case, we think, may be disposed of, without reference to them. Hotel street , in the city of Utica, was laid out as a public highway, and recorded in the office of the town clerk of the town of Whitestown, on the sixth day of April, 1801. Previous to the laying out of this highway, the proprietors of the tract had procured a survey to be made, and a map to be constructed, by Calvin Guiteau, and filed with the cler k of the court in which a space was laid off, for Hotel street ; _ and lo ts were laid out upon it ; from which map sales were made to purchaser s, and the lots were described in the deeds bv reference to that map an d survey . The premises in question consisted of parts of village lots 94 and 95, as designated on the map ; and w ere respectivelv described a s f ollows, in two deeds executed by the original proprietors, which tit le has descended through several mesne conveyances to the defendant. _a s was admitted on the trial . The deed conveying lot 94, bears date on the twenty-eighth day of April, 1803, in which the premises conveyed are described in the following manner : " All that certain piece or pa r- c el of land situate, lying and being in the village of Utica, county of Oneida, and state of New York^ known and distinguished bv a surv ey made thereof by Calvin Guiteau, in the year one thousand seven hun - dred and ninety-eight, and on a map of said land filed in the clerk's office of t he county, by lot 94 . Beginning at the S. E. corner of No. 93, and runs from thence north fifty-three degrees and fourteen minutes, W. fifty-seven feet. Thence S. 36 degrees 15 minutes, W. sixty feet. Thence south fifty- three degrees fifteen seconds, East twenty-nine feet, to tlie Genesee road. Then No. sixty degrees East along the side of the same, to the place of beginning." Lot No. 95 was conveyed by def id. bearing date September 24th, 1802. in which the premises were describ- ed as "All that certain lot or piece of ground situated in the village of Utica, and county of Oneida, known by a survey made thereof by Calvin Guiteau, in the year one tliousand seven hundred and ninety- eight, by lot No. 95. Beginning at the S. E. comer of 94, runs thence north 53 degrees 45 minutes W. twenty-nine feet ; thence S. thirty-six degrees 15 minutes west, sixty- four feet, to the Genesee road; thence along the side of the same N. sixty degrees E. to the place of begin- ning." It will be observed that though Genesee street is named in t hese deeds, and the boundary of the la ndf^ rlp'^rrihpH k gtat^d t^ ^"" along t he side of the Genesee r oad, ypt Hntpl qtrppt i<; not naryipd \v either of tjiern ; but the boundary of the lots is described as running a certain course for a certain distance, referring to the survey and map on file; which, on inspection, g hj2\v these lot^ bounded on the space laj d out as Hotel street j , which descriptions are, by the »;ptt1pH rnnstpirtinn.q. t o be read_as tho ugh the boundar y -b?id .been df"ifribfd ^° rnnmnor,' 'j^ Hotel street, and'aTong thesaid street," on the given courses, and f^ 'Vs ^AJi ^iAcJ- cu^ "--^^ (I2--^Z"^^ Ch.'S) THE PROPERTY CONVEYED 423 ' tl ^e given distances . This is a significant distinction, and as we shall see by and by, is quite decisive of the rights of the parties in this cause. We are to inquire what is the legal construction of deeds whicti de - _ s cribe the boundaries, adjacent to Hotel street, bv cour s es and distances . merely. Does such a description convey the land to the center of Hotel street, or does it convey the land only up to the eastern side of it? , We believe the uniform construction of words, such as are employed in this description ,ig, that the convevance extends to the center of th e ^ high way. Such words as are used to describe the premises on the side next Hotel street, not only have never been construed to limit the grant to the side of the street, b ut have been uniformlv regarded bv the courts as a conveyance to the center of the street . The general rule on this subject IS laid down in Kent's Commentaries, (3 vol. 432,) in these words : "T he law with respect to public highways and to fresh wate r r ivers, ij the same. The ow ners of the land on each side go to the cen- t er of the road." The language oTthe court in Jackson v. Hathaway, 15 John. 454, 8 Am. Dec. 263, and the same is re-affirmed in the court for the correction of errors, in Child v. Starr, 4 Hill, 369, is as follows : "Where a farm is bounded along a highway, or upon a highway, or is described as running to a highway, there is reason to intend that the parties meant the middle of the highway." Ch. Kent says, (supra,) •'T he ijjea of an intention in a grantor to withhold his interest in . a r oad to the mid^31e of it. after parting with all his right to the ad- j oining land, IS never to.be presumed : it would be contrarv to univers al p ractice. ^^ JSlgygrtl^l ess ^ grant mav be so worded as to exclude th e 2^ highwav fro m the terms of the convevance. And it was held in Child V. Starr, 4Hnr, "359, and 5 Denio, 600, th at where land is describe d '^^^-'- a s running to the side of a road, or to the bank of a river, and then -^-♦^^-^ •«'' v. a long th^ ■^iHp of fhp roarl or bank the road or bank is excluded by t he /^^<^ -'^^- t erms of the grant . We see, therefore, that when premises are de- ,^^/^,^ y»'-^ scribed as running "to a road, and along a road," the grant includes the road to the center ; whereas, if the boundary were t o the sid e of the road, and al ong the_.s.id e of the road, the road is excluded, by the terms of the conveyance. T he description of the lots in question, on th ^ side of Genesee street, running to the side of the street, and along t he side of the street, conveys no part of that street. That was a turn- — 4^1 ^^ C-lr-»-^ pike road; and the proprietors did not own it, and had no right to convey it; and hence the significant phraseology of the deed. The f act was not so, however, with respect to Hotel street. The proprietor s o wned the soil of that street, and they adopt a description which by th e e stablished construction, of the words carries the grantee to the center o f that streetjy The boundary on the side of Hotel street is equivalent to a description in words of premises running "t o Hotel stree t and al ong Hotel stree t." It is fixed by courses and distances, without nam- ing Hotel street at all. And in just such a case as this, the very point was decided by the supreme court of Connecticut, in the case of Champlin v. Pendleton, 13 Conn. 23, 25, 27. The question was, wheth- c'J^^ o jr - 1^ cx^ . /t^ *i 424 DERIVATIVE TITLES (Part 2 ^ ^ er a line not described as running on a street, but which was proved on the trial to run on a street, in fact, was to be construed as carrying the grant to the middle of such street, and the court held that it should be so construed. The court, after saying t hat the general principle wa s, t hat a description which carried the boundary "to a street, and along a s treet," embraced the street, to the center of it, proceeded to lay dow n t he doctrine that where it turns out in the evidence that the course s a nd distances given in a deed do, in fact, carry the boundary to a street , and along that street, itis the same in law as though it were expressed i n word s. Applying that principle to the case at bar, we see that the courses and distances given in the deeds do. in fact, carry tlie boundary to Ho- t el street, and along Hotel street. It follows therefore that it is in law the same as though the boundary were described to run "to Hotel street, and along Hotel street," in words. The consequence is, that by th e settled construction of the words and phrases used in describin g t he premises adjacent to Hotel street, the grant is carried to th e center nf that <;frpef There is another view of this question that leads to the same con- clusion and is equally conclusive in favor of the defendant. The de- scription refers to the map made by Calvin Guiteau and on file in the office of the clerk of the county. T hat map is in evidence, and exhibit s th e premises in question as lying adjacent to Hotel street - This map therefore is, by legal intendment, a description of the premises as bounded on Hotel street, and demands a construction precisely the same as though the description was so written out in words. This principle is stated and illustrated in the case of Varick v. Smith, 9 Paige, 550, 553, where the premises, which consisted of two separate pieces of land, were described, the one as "lot No. 7 laid down and delineated on a map filed, &c., as adjacent and extending to the Os- wego river ;" and the other as "blocks No. 78, 90, 99, 103 of the village of West Oswego as the same have been surveyed and designated on the map of the said village filed in the office of the secretary of state." The jj/ice chancellor, in his opinion, in discussing this point, uses the follow- ing language: "A n exemplified copy of the said map has been give n i n evidence, which exhibits"^ these blocks as adjoining the n^^pf i •^^^^i<' 1i I consider as equivalent to a description that, in terms bounds th^ m on the river? ^ This position of the vice chancellor was denied by the counsel of the defendant, on the argument of the appeal. But the chan- cellor affirmed the doctrine asserted by the vice chancellor, and said : "The patent for No. 7 refers for its location to the map of the town- ship of Hannibal, filed in the surveyor general's office, and upon that map the lot is bounded generally on the Oswego or Onondaga rivers. This is the same, therefore, as if the patent had in terms bounded the land granted by the river, without restriction or limitation, which would legally have carried the grant to the center of the stream." *'The patent for the blocks in West Oswego also refers in tlie same Ch. 3) THE PROPERTY CONVEYED 425 manner, to a map on file in the office of the secretary of state, which map bounds these blocks on the river, without restriction." This case i s therefore a direct and conclusive authority in favor of the principl e on which the question in this case turns . Yhere is only one objection to this result, which remains to be con- sidered ; and that is the fact th at the distance given in the deeds woul d o nly carry the grant to the side of Hotel street, instead of carrving. it t o the center . This objection, it will be seen, is founded on the idea that whenever it appears by the express words of the grant, or by a j^ map which exhibits the premises as running to the road, the road itself is excluded. This we have already seen to be an error. The road y fOm—^Jj oO st reet is in the n atui^g^ of a monument, and overrides and controls the . ^_ ^ courses and distances ; and by a fixed and settled construction premise s Z**"*^**-^ ^ d escribed as running to a road are carried by the conveyance itself t o *« C. W-f tji^ir hotelj The evidence pr oved that the defendant cut the aqueduct pipe. Iving within the northern half of the street, and in front of his own hous e. The defendant contended, that as his premises were bounded upon the street, his title extended to the centre of it, and gave him a righ t t o tap, and even to remove the aqueduct. The Judge ruled that the de- fense was not made out, and the defendant excepted — SheplEy, C. J. An aqueduct, owned by the plaintiffs appears to have passed through a street, formerly called Centre street, in front of the defendant's dwelling house, n earer to it than the centre of th e s treet^ and about six feet below the surface of the earth. A lot of land numbered seventeen, a part of which constitutes the defendant's house lot, was conveyed by the owners to Elliott Valentine, on September 28, 1832, bounded "southerly on Centre street, there measuring 120 feet," "as the same is laid down on a plan drawn by Zebulon Bradley, in December, 1829." T he title of the defendant i s J d erived from Valentine . The owners of land, including this lot, caused Bradley to draw a plan thereof in December, 1829, and t o designate upon it building lots an d s ti-eets. T hey soon afterwards caused Centre street to be prepared fo r use as a street or way . As the law has been established in this State, when land conveyed is bounded on a highway, it extends to the centre of the highway ; where i t is bounded on a street or way existing only by designation on a pla n. or as marked upon the earth, it does not extend to the centre of suc h wa The occasion of such difference in effect may be ascertained. The owner of land, who has caused it to be surveyed and designated as containing lots and streets, may not be able to dispose of the lots as he anticipated, and he may appropriate the land to other uses ; or he may change the arrangement of his lots and streets to promote his own in- terest, or the public convenience in case the streets should become high- ways. He does not by the conveyance of a lot bounded on such a wa y hold out any intimation to the purchaser, that he is entitled to the u se of a highwav to be kept in repair, not at his own, but at the public e x- pense, for the common use of all. While he does by an implied cove- nant assure to him the use of such designated way in the condition in which it may be found, or made at his own expense. By a repurchase of that title, the former owner would be entitled to close up such way, as he would also by obtaining a release of the right of way. T here is no indication in such cases of an intention on the part o f . y t he grantor to dispose of any more of his estate dian is included by JijUC^ t he description, with a right of way for its convenient use . — / C^. SSI -- m%- sj c^, ia^ . is'C ■ yl>**^-« 428 DERIVATIVE TITLES (Part 2 When a lot con v eyed is bounded on a highway expected to be pe r- manent, the intention to have it ext e nd to the centre of it is inferre d, (among other reasons noticed by this Court in former cases,) from tlie consideration that the vendor does not convey or assure to the ven- ee a right of way, t he law affording him in common with others a nore permanent and safe public way, to be kept in repair at i he ^ public expense. The vendor not being burdened by an implied co v- e nant, that the vendee shall have a right of way, has no occasion to re - tain the fee of the highway for that purpose. Hence arises one motive inducing him to convey all the rights, which he can convey to land covered by the highway. ■ In argument for the defendant it is insisted, that Centre streets at .^_,^^ t he time of the conveyance had become a highway by dedication oiJ :he o wners of the land. j^,^ fl It might be sufficient to observe, that such a position does not ap- pear to have been presented at the trial, for decision by the jury or iK^>'. . for instruction by the Court. Without insisting upon this, the testimony presented in the bill of exceptions does not sustain the position. If an owner of land should cause it to be surveyed into lots and streets, and a plan thereof to be made, and should also cause the streets to be made convenient for use, and continue to keep the land enclosed as his own property, it would not be contended, that a ded- ication of it to the public could be inferred from these acts. Xjiere r nust be some act of the owner, from which it can be clearly inferred . J. t hat he intended to surrender it for public use, and not for the use o f certain persons only . The simple facts, that a person pursued such a course respecting his land, and that he opened a way for the use of a purchaser of a lot, w ould not, alone considered, authorize an infe r- ence that it was dedicated to the public for common use. . There shou ld be some evidence, that it was generally used with his knowledge, a s p ublic convenience might require, to authorize such a conclusio n. Nor could the owner compel the public to accept and adopt such streets as highways. There should be evidence that they had been commoj ily u sed to authorize an inference, that they had been accepted as publ ic ways.__ In this case, there is not only no evidence that Centre street at the time of the conveyance of the defendant's lot to Valentine had been used as a public way, but there is evidence, that it was not kept in re - pair^ and that part of it only is used as a stre et. x Exceptions overruled, and judgm ent on the \&v6 .\zt.^*( .^^ fi£4AA>*Xt^j 12 Hopkinson v. McKni?ht, 31 N. J. Law, 422 (1S66) ; Robinson v. Jilyers, 67 Pa. d (1871) ; Plumer v. Johnston, 63 ]\Iich. 165, 173, 29 N. W. 6S7 (18S6), dictum, ace. Johnson v. Arnold, 91 Ga. 659, 18 S. E. 370 (1893) ; Stark & Wales v. Coffin, 105 Mass. 328 (1870) ; Bissell v. New York Cent. R. Co., 23 N. Y. 61 (1861) ; Jarstadt v. Morgan, 48 Wis. 245, 4 N. W. 27 (1879) ; Paine v. Consumr ers Forwarding & Storage Co., 71 Fed, 626, 19 O. C. A. 99 (1895), contra. Ch.3) THE PROPERTY CONVEYED 429 SACCONE V. WEST END TRUST CO. (Supreme Court of Pennsylvania, 1909. 224 Pa. 554, 73 Atl. 971, 24 L. R. A. [N. S.] 539.) Ca se stated in ejectment to determine title to the bed of an alley in t he' ninth ward of the city of Philadelphia. Before Audenried, J. The following plan shows the situation of the alley: 3ouTH Pe.Hn Scxii'^RE- The facts are stated in the opinion of the Supreme Court. Err or assigned was in entering judgment for defendants on the case s tate4, Potter, J. This was an am icable action of ejectment, brought to re coy^.r possession of a strip of ground, three feet in width and eighty f eet in depth^ situa t ed on the west side of Broad street, fifty-nine fee t south of its intersection with South Penn square, in the city of Phil- adelphia. The parties agreed upon a case stated, which disclosed the following facts : On Ap ril 21, 1832, Robert A. Cald cl eugh conveyed to v arious grantees, fiye lots of ground .situated on South Penn square west of Broad street, each twenty feet in width, the corner lot and th e t hree lots nearest to it being fifty-nine feet in depth and the wester n- most lot sixty-two feet deep. Each of the first four lots was described in the deeds as e xtending "to a three feet wide alley laid out and o pened by the said Robert A. Caldcleugh for the accommodation o f t his_ and other lots adjoining thereto and leading westward from th e s aid Broad street to the depth of eighty feet ." Each of the five deeds contained a gr ant of "the free use and privilege of the said three fee t wide alley as and for a passageway and water course in common with .t he owners and occupiers of the said adjoining lots/ ' ^a-^'f ^ 4:30 DERIVATIVE TITLES (Part 2 From the date of the deeds each of the owners of the lots continued t o have, use and enjoy the free and uninterrupted use and privilege of t he allev as and for a passageway and watei^ course in rnmmnn yyith t he owners and occupiers of the other four lots . On November 11, 1846, Robert O'Neill" acquired title to the prem- ises adjoining the alley on the south and o n Tune 26. 1848. Caldcleug h subject to t he uses an d /M''^^J^ ises aajommg me aiiey on me buum aiiu u ii iu '/^ con^^cHoQ^Nein the soil of the alley in. fee, ^ p molegesg^nte^o the owners of the lots adjoining. On August 9, //*/ 1849. O'Neill c onveyed to o ne Wickersham the premises south of the y * alley "together with the fr ee and common use andprivilege of the ^.^A**'^ aforesaid three feet wide alley as and for a passageway and water ^^^/4^ course into and from Broad street at all times forever." -^Z S ubsequently, bv various conveyances, three of the lots next t he co rner ongmally granted by Caldcleugh became vested in the We st End Trust Company and t hp nthp-r two lots, as well as the premise s south of the alley, granted by O'Neill to Wickersham. became vestf d in the Girard Tru st Company . Both companies made use of the soil of the alley in connection v/ith buildings erected on their respective premises, and o n October 6, 1905, they entered into an agreemen t ."Xf^ with each other.^'that the said alley be and the same is hereby ab an- \^J\J(^* ^»f doned and vacated ." The plaintiits are the heirs at law of Robert ^j[ji/^ r*0'Neill, grantee of Caldcleugh by the deed of June 26, 1848, and the *Jl I defendants are the West End Trust Company and the Girard Trust f^ yi^ (^ Company, ^ ^ ^ Up on the facts stated, the court below held that each of the grantee s >^,^^ "^ o f Caldcleugh, under the four deeds of April 21. 1832. took, a fjfp sinrnj e ^^ ^^^^ t itle to so much of the ground in dispute as lay immediately in the rea r v''^. ^ o f the lot he bought, subject to an easement m the owners of the other "^/f^"^ lo ts^ and that Caldcleugh parted with all his interest at that time, and V^ n o title to the soil of the alley passed by the deed of Caldcleugh to ^ C yNeill on Tune 26. 1848 . Judgment was entered on the case stated •^ ^-^ ior the defendants, and the plaintiffs have appealed. ^f^ iJU^ I f the alley in question had been a public highway, the grantees of •^ '^ land bounded thereby would without doubt have taken the fee to the center of the highway, if the grantor owned such fee, and had used no language in his deed indicating an intention to retain the fee in the highway. In one of our latest cases bearing on this question, Wil- lock V. Beaver Valley R. R. Co., 222 Pa. 590, 595, 72 Atl. 237, 238, our Brother Elkin said: "I f the plan, pf lots in the present case had been laid out by an individual in precisely the same manner as the co m- • monwealth had done, and lots had been sold with streets as boun d- a ries, the title to the fee to the center o.f the streets wo uld h ave passed to the purchaser. This is the rule of our cases. from Paul v. Carver, 26 Pa. 223 [69 Am. Dec. 413], to Neely v. Philadelphia, 212 Pa. 551 [61 Atl. 1096]." We_can see no reason why, thfi same rule should not apply to land vvhichis conveyed as bounded by a private way. The doctrine was CIi. 3) THE PROPERTY CONVEYED 431 substantially adopted by this court, in Ellis v. Academy of Music, 120 Pa. 608, 623, 15 Atl. 494, 496 (6 Am. St. Rep. 739), where it was said : "Nor did the court err in charging that parties who are entitled to a free use of an alley, have the same right in it that the public has in its highways, and that if the way in this case were vacated, the soil would belong to the plaintiff and defendant as tenants in common. By the several grants to these parties, their properties were not only bounded on the alley in controversy, but it was made appurtenant to those properties. Nothing, therefore, was left in the owner, and i f t he fee did not ve st in these grantees, it is hard to tell where it is. The case is very much like that of Holmes v. Bellingham, reported in 7 C. B. (N. S.) 329, in which Cockburn, C. J., says : ' The direction com - pl ained of is. that the learned judge told the iurv that there was a p resumption in the case of a private wav or occupation road betwee n t vyo properties, that the soil of the road belongs usque ad medium to t he owners of the adjoining property on either side . That proposi- tion, subject to the qualification which I shall presently mention, and which I take it, was necessarily involved in what afterwards fell from the learned judge, is, in my opinion, a correct one . The same principle which applies to a public road, and which is the foundation of the doctrine, seems to me to apply with equal force to the case of a private road.' As the doctrine here stated seems to be reasonable and sound, we cannot understand why we should not adopt it. It seems to h e arlpiittpH thaf. were the alley public, its vacation would vest in each o f the parties the unincumbered one-half of the fee in severalty, and why this should not apply to a private way, where, just as in the cas e o f a public way, by the grant it was made appurtenant to the severa l p roperties, we cannot understand. " The reference above to the plain- tiff and defendant as being ^nants in common^of the soil in the alley in case it was vacated, was^ prpbably a slip of the pen^s later in the opinion it is stated that vacation would vest in each of the parties one- half of the fee in severalty. In Rice v. Clear Spring Coal Co., 186 Pa. 49, 40 Atl. 149, the rule which was approved by this court was thus stated : " When the boun d- a ry given in a deed has physical extent, as a road, street, or other mo n- ument having width, courts will so interpret the language of the d e- s^cription, in the absence of any apparent contrary intent, as to carry t he fee of the land to the center line of such monument." And in Schmoele v. Betz, 212 Pa. 32, 61 Atl. 525, 108 Am. St. Rep. 845, a case which involved the use of a private alley, the doctrine was again cited with approval, that, in case of vacation, t he rule which appl ies t Q a public highway is to be applied as between parties entitled to the us e of a private alley." 13 See Fisher v. Smith, 9 Grav, 441 (18.57); McKenzie v. Gleason, 184 Mass. 452, 69 N. E. 1076, 100 Am. St. Eep. 566 (1904) : Freeman v. Sayre, 48 N. J. Law, o7, 2 Atl. 650 (1886) ; Stockwell v. Fitzgerald, 70 Vt. 468, 41 Atl. 504 (1895) (semble) ; Wiess v. (Joodhue, 46 Tex. Civ. App. 142, 102 S. W. 793 (1907), hold- ^i^**^25^i ^t-^ti^:?^ 432 DERIVATIVE TITLES (Part 2 In some of our cases, the language used appears to sustain the con- tention of appellants, that there is a distinction between a call for a. public highway as a boundary, and a private street or alley, so desig- nated. But y ye think upon examination that these decisions were np t intended to go further, than to hold that where l ^rid i^; rnnvpyprl-^a^ bounded by an unopened street, the grantee takes the fee only to the s ide line of the street, with an easement over its be d. Thus in Cole v. Philadelphia, 199 Pa. 464, 49 Atl.* 308, the deed called for a street which was unopened, and it was held that the call for an unopene d s treet as a boundary only conveyed the title to the side of the stree t a nd not to the middle thereof . In Clymer v. Roberts, 220 Pa. 162, 69 Atl. 548, the deed called for "the middle line of Howard street fifty feet wide ; thence along the middle line of said Howard street." How- ard street was at the time an unopened street, but it was held that the purpose of making the boundary to be the middle line of the street was to vest the fee in the grantee as far as the center line, notwithstand- ing the fact that the street was at the time unopened. In Robinson v. Myers, 67 Pa. 9, where the rule with regard to unopened streets seems to have been first laid down, this distinction is expressly made. Jus- tice Williams, after stating the doctrine of Paul v. Carver, 26 Pa. 223, 67 Am. Dec. 413, and Cox v. Freedley, 23 Pa. 124, 75 Am. Dec. 584, ■ said, with reference to the case then before him: "But in this case there was no alley or street by which the lots were bounded. The recorded plan which is to be taken as a part of the defendant's title shows that the ground in question is a lot, and not a street. • And it is admitted that no alley was ever laid out over the lot, or ever used by the public or by private individuals. There is then no ground or reason for the application of the rule laid down in Paul v. Carver, to this case." The case of Van O'Linda v. Lothrop, 38 Mass. (21 Pick.) 292, 32 Am. Dec. 261, cited in Robinson v. Myers, and also by Jus- tice Mercur in Spackman v. Steidel, 88 Pa. 453, relied on by appellants, was also a question of an unopened street. IMorton, J., said (21 Pick. 296, 32 Am. Dec. 261) : "The street did not then exist in actual use, but only in contemplation." The decision there seems to have gone upon the i ng same rule applips whprp hn^^ndary is upon a private wav as in the cases i n- vbiYmg public ways . In Gould v. Wagner, 19(5 Mass. LJ70, 82 N. E. lO (lyU'O, tne lot was described as situated "on" a way five feet wT.de; despite the fact that the way was on the margin of the grantor's land, only half of it passed under the deed. Two justices, however, dissented on the ground that the entire way should have passed. See Albert v. Thomas, 7.3 Md. 181, 20 Atl. 912 (1890). As to what will be sufficient to overcome the presumption that at least half of the wav shall pass, see Stearns v. 'Mulien. 4 Gray (IMass.) 151 (18.55); Cod- man v. Evans, 1 Allen CMass.) 443 (1861) ; Crocker v. Cotting, 166 Mass. 183, 44 N. E. 214, 33 L. R. A. 245 (1896) ; Mott v. Mott, 68 N. Y. 246 (1877). T hat in case of boundaries unon private w^avs the same rule as i" the case o f pjiblic ways is not applicable, see Seery v. WaterbuiT. 82 Conn. 567, 74 Atl. 908, 25 LrR. A. (N. S.) 681, IS Ann. Cas. 73 (1900) ; Ames v. Hilton, 70 Me. 30 (1879) ; Winslow v. Reed, 89 Me. 67, 35 Atl. 1017 (1896). See also Taylor v. Armstrong, 24 Ark. 102 (1863) ; In re Robbins, 34 Minn. 99,. 24 N. W. 856, 57 Am. Rep. 40 (1885) ; Ilealey v. Babbitt, 14 R. I. 533 (1884). Ch. 3) THE PROPERTY CONVEYED i33: ground that the deeds showed an intention by the grantor to exckide the fee of the street from the grant. I n the present case the lang;-uage of the deeds frorii Caldcleugh, a<; se t f orth in the case stated, shows that at the time of the conveyances the a lley was alreadv "laid out and opened by the said Robert A. Cald - ckugh ; ■ and it further appears from the case stated that after the con- veyances were made t he owners of the lots continued the use of the JiJ^Ji*-u yO*'-*'^ a lley, and it was not abandoned or va cated until October 6, 190.S, a. pe- ^^^ yS ^ r iod of over seventy-three vears . So that the facts of this case dis- — " tinguish it clearly from Robinson v. Myers, supra, and the subsequent cases relating to unopened streets and highways. When Justice Mer- cur, in delivering the opinion of this court, in Spackman v. Steidel, 88 Pa. 453, said : " Where the street called for a boundary is not a pub - l ic highway, nor dedicated to public use the grantee does not take titl e i n fee to the center of it, but by implication acquires an easement o r right of way only over the lands/ ' and then cites the cases which we have above referred to (Van O'Linda v. Lothrop, and Robinson v. Myers), we think it is apparent that he had in mind cases where the deed called for a street that was unopened, as the two cases which he cites had re ference to such unopened street s. The authorities are uniformly to the effect that t he question .o f whether the grant includes the fee to the bed of the highway, i s one of intention . The grantor in the present case did not expressly ■except fronTTiis conveyances the fee of the alley in the rear of the lots conveyed, and i t is hardly reasonable to suppose that he intended to r eserve a strip at the end of the four lots, three feet wide and eighty "^ feet lon.s^._ which hp wa<; ctnbjprt ing to easements which, so long as c laimed by the grantees . _ would prevent him from making any beneficia l u se of the fee in the strip, We think it is apparent that Caldcleugh in 1832 intended to p art with his entire interest in the property, and that the alley was l aid out and opened as stated in his deeds "for the ac- commodation of this and other lots adjoining thereto." It will be re- called that the westernmost lot. No. 5, was described as being sixty- two feet in depth, and that Caldcleugh did not reserve the three feet at the rear of that lot. I f he had intended to reserve to himself the fe e • ^^^^ i n the alley, he would naturally have reserved the same space in th e KO X4m*««v-«^«^ r ear of lot No, j . But he evidently conveyed that lot to its full depth ^^^ t^j^k.^^^ •/ * because, a s it was at the head of the alley, access could be had theret o .....y. \i^ T T"., .^ without any such reservation . Neither the language of the deeds nor , ^ . ^«l5 the situation of the ground, nor the circumstances connected with the*"'tc2JU ^ conveyances, indicate any intention on the part of Caldcleugh to retain the fee to the bed of the alley, when he made the conveyances in 1832. The assi mments of error, are overruled. a,nd the judgment is af - AIG.PK0P.-I-28 T^ -^ qi^ y^^.. L/iT » ttO 434 DERIVATIVE TITLES (Part 2 GEDDES COARSE SALT CO. v. NIAGARA, LOCKPORT & ONTARIO POWER CO. (Court of Appeals of New York, 1913. 207 N. Y. 500, 101 N. E. 456.) HiscocK, J. This action was br ought as one of ejectment to com- pel the appellant to remove wires used for conducting high power elec- tric currents and strung above the boundaries of a highway, as show n upon a map which will be referred to . The facts which define the con- ^ troversy are as follows : In 1902 the st ate issued to the respond ep f- Iptters patent wherebv it granted and conveved to it certain lands theretofore r^^Tr^ti tnting part of the Onondaga Salt Springs Reservation a nd amongst which was one j^/ti^ "parcel, alone involved in this action, described as "S ubdivision No. 1 7 (o f_Farm Lots 4.S and 46) containing 13 42-100 acres/' as said subd i- vision was laid down on a rnap of the farm lots in question made b y one Greene, deputy surveyor m August, 1849, and during said mont h filed in the office of the secretary of stat e. Said map showed said subdivision 17 as abutting at its southerly boundary on a road fou r r ods wide, and which road in turn had for its southerlv boundary th e blue line of the enlaro^ed E rie canal the n in process of constructio n, the distance from this blue line to the base line of the canal as finally 3u^/^ / constructed and used being upwards of thirty feet. F pr some tim e .-> / ^^r* b efore the grant in question said road apparently was not used bv th e J? public in the portion bounding subdivision 17 aforesaid, but at le ast s ome part of it seems to havp bppri nrrn pied by a storehouse belong - /i np- to the respondent . The letters patent and the map to which ref- erence has been made ga ve the area o f subdivision 17 and other parcels then being conveyed and s uch statement of such area is satisfied w ith- o ut incorporating in the grant any portion of the hi.jyhway. Under these circumstances the question has arisen w hether the respond ent "^ accjuired title to all or to part of said highway as subdivision 17 abut ted • on the same^ and this question by consent was disposed of by the trial court as a question of law, it holding that the respondent acquired t itle to the bed of the entire highway. ^^Jc_ ( '^^^ g eneral rule is that a conveyance by reference to a map which Y^^^fCi* \ shows the premises being conveyed as abutting upon a highway, as ( (Ra^-*^ I between the grantor and grantee, conveys to the latter title to the fee V of the highway tojhejcentgr Ijjlg thereof. T his is the rule as r^mm^ t t he state as well as a gainst a private grantor, and it applies eve n t hough at the time of the conveyance the highway as shovyr^ upon th e map has not been accepted and used bv the public as such, and aJtho^io rh t he grant by its terms or by reference to a map gives an area of the premises being conveyed which is satisfied without resort to the lan d i ncluded in the hjo^hwav. Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61 ; Matter of Ladue, 118 N. Y. 213, 23 N. E. 465 ; Trowbridge v. Ehrich, 191 N. Y. 361, 84 N. E. 297; Paige v. Schenectady Ry. Co., 178 N. ^//^/^^^ Ch. 3) THE PROPERTY CONVEYED 435 Y. 102, 111, 70 N. E. 213; Van Winkle v. Van Winkle, 184 N. Y. 193, 204, 77 N. E. ZZ. I see no reason for attempting to build up an exception to this gen- eral rule upon the facts presented in this case, but t hink that the re - sp ondent's title extended to the center of the highway opposite said s ubdivision 17. as shown upon the map. The respondent, however, is not satisfied with this but insists tha t ^*:i^±2!^_^ u nder its grant it took titje to the fee of the entire highwav. and thus c^^*'^ ^f"*^ i t has so far been held . lyJ^cJU "A«-4^ The theory upon which it bases this contention is that the state was y^^rx.,*,*' *-^ n ot the owner of or interested in land on the <;pnthpr1y gide ni thi^; ^ hi ghway in such manner as would justify the presumption that it i n- '<==Z tended to retain title to the fee of such southe rly half nf g^^irl hjpj^- C^,,^^ ***■ ^^ way. The cases especially relied on in support of this theory are those of Haberman v. Baker, 128 N. Y. 253, 28 N. E. 370, 13 L. R. A. 611, and Johnson v. Grenell, 188 N. Y. 407, 81 N. E. 161, 13 L. R. A. _(N. S.) 551. Each of these cases involved the principle so far as applica- ble to this discussion th at where a highway has been constructed u p- on the margin of the grantor's land his subsequent grant of the abut - ting land should be deemed to include the fee in the whole roadbed be - c ause it will not be assumed that he intended to retain the fee to p ne- h alf of the roadbed under such circu mstances. In the Grenell Case the grantor being the owner of an island in the St. Lawrence river constructed on its shore a road extending to the waters of the river, and thereafter made a conveyance of land abut- ting on said roadway, and it was said by Judge Gray in writing for the court that "th ere is no sufficient reason appnrent to infer an intentio n by the grantor, when parting with her title to the only land adjoinin g t he road, to reserve any interest in \\\e. fee of the road itselT! Mani- festly, from the facts, an inducement to the purchaser of the lot was its being shown, and stated, to lie upon the shore of the island and the enjoyment of the riparian advantages conferred a distinct value. T he ordinary presumption is that, in the absence of contradictory t erms, the grantor does not intend to retai n Jhe fee of the soil in th e jFeet.;^ 18"8 nTy. 410. 81 N. E. 161.' 13 lTr. A. (N. S.) 551. I do not regard the facts presented in those cases as so parallel with the ones arising here as to compel or justify the adoption of the re- spondent's contention. T he state is the owner of the canal and a s already stated between the base line of the canal and the blue line whic h b ounds the highway on the south there is a strip of land of consid - erable width~ Under these circumstances it does not follow as a con- clusion of law that when the state made its conveyance to respondent it had no interest in retaining the fee to the southerly half of the road- ^^j-^^^^ .^^^^ ^ way or that such retention would secure a useless and barren right. ^On i^*''*'^ .^ , tl ie contrary, it seems to me that the ownership of this extra strip oi^ Mc/^^^^"*^ f, ^^^ t ^iirtv-three feet adjoining the canal lands may be a right of much *-< '^^^ value and convenience. Thus again I feel that we should follow the /t^Zi***-* -^ 436 DERIVATIVE TITLES (Part 2 general rule prevailing In the case of grants of land abutting on high- ways and that no sufficient reason exists for awarding^ to responde nt t he title to the fee of the entire roadway instead of one-half there of. These views lead to the conclusion that the judgment appealed from should be so modified as to determine that re spondent acquire d title t ^ the northerly half of the highway onwhich its said premises aS ut according: to saidGreene map , Jand that it h ave ejectment against appellant as to said premise s, and as modified affirmed, without costs to either party on this appeal. CuLLEN, C. J., and Gray, Willard Bartlett, Cuddeback, and HoGAN, JJ., concur. Mili^SR, J., not sitting. Judgment accordingl-^.^* CHICAGO & E. I. R. CO. v. WILLARD. (Supreme Court of Illinois, 1910. 245 111. 391, 92 N. E. 271.) Hand, J. This was an action of ejectment b rought by the appel- lant in the circuit court of Williamson county against the appellees t o re£ g ver a strip of land described as commencing at the north-wes t c orner of the south-west quarter of the north-west quarter of se c- t ion 19 , township 8. raj ige 3 _east, running thence sout h 275 feet, thence east 16 feet, thence north 275 feet, thence west lo teet tcTllie place of beginning, in Williamson county, Illinois; The p-e neral issue was file d, and upon a trial, at the close of the plaintiff's evidence, the jury, under the direction of the court, r eturned a verdict in favor of the defend - ants, upon which verdict the court rendered judgment, and the rec - ord has been brought to t his court by appe al^ for review . "The parties claimed t itle from a common sourc e. It appears from the record that on April 24, 1894, Felix G. Henderso n ^Yifi ^^^ ^^^'^i^^i- in fee of the south-west quarter of the north-west quarter of said section 19; t hat the Chicag o, Pad ucah and Memphis Railroad Com - p any had located its right of way ac ross said tract of landj that on that day Henderson c onveyed a lOQ-foot strip across said tra ct , and the forty -acre tract lying immediately south of said tract, to said railroad c ompany by the following description : "I hereby sell and convey to the said Chicago, Paducah and Memphis Railroad Company a strip 1 00 feet wide across m y la nd, to-w it : Where the hne of said railroad is now surveyed and located on the west side of the S.W.N.W.qr. and the N.W.S.W.qr. Sec. 19, Town 8, South, Range 3, East of the third 14 See Banks v. Ogden, 2 Wall. 57, 17 L. Ed. SIS (1S64) ; SclioU v. Eniericli, 36 Pa. Super. Ct. 404 (190S). A., the owner of lands boimded on the east by a river with a highway run- ning along the river bank, the east side of the highway being the west water line of the river, made a deed of a portion of said lands to B., describing the part conveyed as being "bounded on the east by the highway." By accretion a considerable tract of valuable land has been formed on the east side of the highway. The new land is claimed both by A. and B. To whom does it be- long? Ch. 3) THE PROPERTY CONVEYED 437 P.M., s ubject to public road as it now runs, being; 50 feet on each sid e of line as now located ;" that on the west line of section 19 there was located a highway 40 feet wide; t hat 20 feet of said highway wa s u pon the Henderson land ; that the west line of the right of way strip c onveyed by Henderson to the railroad company was situated 16 fee t f rom the section line ; that in 1897 the Chicago, Paducah and Memphis Railroad Company co nveyed all its property, including the right o f w ^y purchased from Henderson, to the appellant : that on March 23, 1897, the appellant pur chased a strip of land 9D feet wide and 78 8 f eet long adjoining the strip in controversy ^ and other lands on th e \vest, and the old 40-foot highway on the section line was aban- doned and a new highway 50 feet wide and parallel to and 40 feet west of the sectio n line was laid out in lieu of the old highway ; tha t i n 1905 ^ Felix G. jienderson conveyed to A. L. Willard the 16-foo t s trip in co ntrovers: ^ and Green Hindman is in possession of the same as the tenant of VVillarl>^ son to the Chicag o, Paducah and Memphis Railroad Company ? We think an examination of the deed shows th^t^^twas^ The deed does not in terms describe the premises conveyed as abutting upon the highway. On the contrary, it conveys "a strip 100 feet wide across 438 DERIVATIVE TITLES (Part 2 my land," that is, "50 feet on each side of line as now located." At the time the deed was executed the railroad company was limited to a right of way strip 100 feet wide. T he west hne of the 100-foot strip w as 16 ft. east of the section line, and the east four leet of the 40 - f oot highway was thereby conveyed to the railroad company by tl ie Henderson deed. We thifik it probable the words "subject to public road as it now runs," were inserted in the deed to cover the part of the highway which was included in the 100-foot strip. The grantor i n t he deed manifestly intended to convey to the railroad company^ a strip 100 feet wide across his land, and'no more, for right of way pu r- poses. The strip conveyed was not described as being on, upon or along the highway, hut the west margin of the strip was four feet in t he highway . We therefore conclude that the title to said 16-foot strip remained in Henderson until he conveyed the same to Willard, and that, t he appellant having failed to show title in itself to said prem - ises, the court properlv instructed th^ jury tn retur n a verdict fo r appellees . The judgment of the trial court will be affirmed . Judgment af- firmed. LOW V. TIBBETTS. r^npreme Jiidicial Court of Maine, ISSl. 72 Me. 92, 39 Am. Rep. 303.) On Report. T respass for hauling certain loads of stone upon th e l ocus which is within the limits of a town way , and the plaintiff claimed ^^_^^ to own the fee. The question presented, called for th e construct ion/? J) of a deed from the plaintiff to the defendant, dated June 26, 1857. The^--^ description is given in the opinion. At the trial, the presiding justice was of the opinion that the fee was in the defendant, and a n onsuit was .o ni^red "which is to be set aside, if such construction of the deed was erroneous." Barrows, J. The question is, w^hether the fee in the locus (vA^hich i s a strip about twelve rods in length, by forty-four feet in width, bein^ section of a duly located street in the village of Spring Vale, runnjn g blong the bank of Mousam river, cutting a lot formerly owned by th e pjamtiff very unequally, and leaving the largest part of it on the sid e farthest from the river, and a little irregularly shaped land betwe en treet and river) is in the p l aintiff, or in the defendant . After the street was built, plainti ff conveyed his lot to de fendant, d e- s cribing firs t_the_ more important pa rt, as '^ uate in the villag e of S£ring__Vale * * * beginning on the north easterly side of the new road leading from the Province Mills Bridge to the cotton mill, and at the southerly corner of the lot as now fenced belonging to school district number one, * * * ^nd running (course given) by said road * * * to a stake," and thence around the rear of the lot, "to Ch. 3) THE PROPERTY CONVEYED 439 the place begun at ; a lso the land now owned by said Low between s aid roa.d_and Mo usam riv er." T he well settled doctrine in this State is, that a grant of land bou nd- \ /^ e d on a highway, carries the fee in the highway to the centre of it . if /C^Z^*"^*" t he grantor owns to the centre, unless the terms of the conveyan ce / (J (X^j,^ ^ ^ c learly and distinctly exclude it. so as to control the ordinary presump - \ tjon. Oxton y. Groves, 68 Me. 372, 28 Am. Rep. 75. Here the prin-^ cipal piece is bounded by the road as a monument or abuttal. So is the land lying opposite "between the road and the river." /^ \ Is there enough in the language used, to exclude the street froin/^ I the conveyance? The mere mention in the description of a fixe c^-^^ point on the side of the road as the place of beginning or end o f o ne or more of the lot lines, does not seeiTK to be of itself sufficie nt. Ciottle y. Young, 59 Me7 105, 109; Johnson y. Anderson, 18 Me. 76; nor will similar language, with reference to monuments standing on or near the bank of a stream, in lines beginning or ending at such stream, prevent the grantee from holding ad medium filum aquae: Pike y. Monroe, 36 Me. 309, 58 Am. Dec. 751; Robinson v. White, 42 Me. 210, 218; Cold Spring Iron Works v. Tolland, 9 Cush. (Mass.) 495, 496. The case of Sibley y. Holden, 10 Pick. (Mass.) 249, 20 Am. Dec. 521, cited by plaintiff, was commented on by this court, in Buck- nani y. Bucknam, 12 Me. 465, and that of Tyler v. Hammond, 11 Pick. (Mass.) 193, in Johnson y. Anderson, 18 Me. 78 ; and the apparent force of these decisions is somewhat restricted and explained, by the learned court which pronounced them, in Newhall y, Ireson, 8 Cush. (Mass.) 598, 54 Am. Dec. 790, and Phillips y. Bowers, 7 Gray (Mass.) 24; although it is apparent from the last case and from Smith v. Slo- comb, 9 Gray (Mass.) 36, 69 Am. Dec. 274, that the Massachusetts court lays less stress upon the ordinary presumption, and requires less distinctness in the terms of the deed to obviate it, than we have done in the cases above cited from the 18th, 59th, and 68th of our own reports. See also, Perkins' note to Sibley y. Holden, in the second edi- tion of Pickering's Reports, vol. 10, p. 251. H ad the plaintiff run his first line "by the north easterly '=^'^d e■ line of said road/ ' instead of " by said road ," and conveyed the land "lying between the southwesterly side line of said road and Mousam river," instead of that "lying between said road and Mousam river," a differ- ent question would have been presented. I n the absence of the very f ew y^ord . ^ which were necessary to make p lain an intention on the part of the plaintiff to , r eser\^e the fee in th e ^ l and covered by the street to himself , we think the ordinary presum p- t ion and construction must prevai l. Nonsuit confirmed. ^° f t^iryi AmA^ \ 16 In Sibley v. Holden, 10 Pick. (]Mass.) 249. 20 Am. Dec. .521 (1830), referred to above, tbe court said : "From this description, we are all of opinion, that the line must begin on the side of the road, and at that point exclude the road; /^^ ^\ then the question is, w hether when the description returns to the road aga jpy ' \ e A 440 DERIVATIVE TITLES (Part 2' SALTER V. JONAS. r r CTj (Court of Errors and Appeals of New Jersey, 1877. 39 N. J. Law, 469, 23 Am, Eep. 229.) In Error to the Supreme Court. This was an action of ejectment for a small strip of land, bein g one - '^ h alf of what had been a public street, in front of a lot of land whi ch t he plaintiS had conveyed to a certain person, and which lot had come . b}^ divers mesne conveyances, to the defendan ts. The plaintiff's deed i conveyed the premises by the following description, viz : I "All that certain lot or parcel of land, situate, lying and being in the township of Bergen, .in the county of Hudson and state of New ! ^J^ersey, butted and bounded as follows : Beginning at a stak e^ standing * * * at the junction of tlie easterly line of Rowland street with the norther- ly line of Johnson street, as laid down on the map of said Salter's premises, and running thence (1) along the northerly line of Johnson - street south, twenty-three degrees forty minutes, east, fifty (50) feet, to a stake; thence (2) norths sixty six degrees east, one hundred (100) feet, to a stake, thence (3) norths twenty-three degrees and forty min- utes west, fifty (50) feet, to a stake in the said easterly line of Rowland street; thence (4) along the same south, sixty-six degrees west, one hundred (100) feet, to the beginning." A fter Rowland street had been used for some time, it beca me use- l ess, in consequence of another street having been opened, and the de- fendants had proceeded, thereupon, to take in and enclose to the mid- dle line of the street in front of the lot above describe d. At the trial in the Hudson Circuit, the court instructed the jury that the defendant's deed covered the land in the street which was in dis- pute, and there was a verdict accordingly. 7^*-u^t*/ Je^ CttJ^ - The opinion of the court was delivered by " Bdasley, C. J. This case, as it stands before this court, presents, / \ in a distinct form, t he question whether in a conveyance of land s / <^ \ w hich, in point of fact, abut upon a street or highway, anything sho rt / , j orevprp< ;<; wnrHg pf pyrin sign will prevent the title from extending jo t he rnedium filum of such street or highway, the grantor, at the dat e i t shall be taken to mean the side or the center of the road . If constmed to be the center, then the remaining line would neither be by the side of the road nor the center, but by a diagonal line from a point in the center to a point on the side. This would not only be obscure and inconsistent with any supposed intent of the parties, but repugnant to the last clause in the description, which is, 'by said road to the place of beginning.' A^ one point in this lif i f is fiv-p ^n by the description to the side of the road, we nrp s.ntisfipri that, bv ^ lust an d necessary construction, the other point must be taken to he at the side of fhp roaa, and th erer ore that the soil or the road was not include d.'' Cf., how- everflVIcK^Zirv. Gleason, 1S4 Mass. 452, 69 N. E. 1076, 100 Am. St. Rep. 560 (1904). See In re Parkway, 209 N. Y. 344, 103 N. E. 508 (1913), where the beginning point was "at the northwesterly corner of Walnut street and Second avenue." Ch. 3) THE PROPERTY CONVEYED 441 of such c onveyance, b eing the owner of such street or highway to tha t extent . This is a subject with respect to which the views of judges are much at variance. T he general opinio n a ppears to he that there is so stron g /If, ^, ^^ - a presumption of an intention to convey the soil of the highway wh en Y(^^*^ iT t he premises granted actually border upon it. that v ,g)i'^Ji]ali^^i^ca- ^ (S^-*--**-*-*' t ions of a contrary purPOse ^^aT^pj-egn^^ Under the V operation of such a test, the present deed would not embrace the land in dispute, for the descriptive words cannot be extended from their intrinsic force, so as to have so wide a reach.' The jvvordg. here used wil l not, if interpreted in their familiar sense, and^standing by them - se lves, admit of being^ taken as deHneatory _o£ _any part of the stree t. The only point for consideration, therefore, is whether, when the terms used have this restrictive force, tliey are to lose that force in the pres- ence of the great presumption to the contrary, which is inherent in the position of affairs where a lot thus located is granted. There are, undoubtedly, decisions which tend very strongly to this point, and others which apparently reach it. The leading cases are carefully collected, and the general subject judiciously handled in the notes of Mr. Wallace, appended to the case of Dovaston v. Payne, 2 Smith's Lead. Cas. (7th Ed.) 160. In this series stands prominently the case of Paul v. Carver, decided by the Supreme Court of Pennsyl- vania, 26 Pa. 223, 67 Am. Dec. 413.^^ In that instance, the description carried the lot conveyed by so many feet to a designated street ; "thence southeasterly along the northerly side of said street," and the street thus referred to was afterwards vacated, and it was held that half of it passed with the lot that was thus bounded by its northerly • side. This result was justified on the broad ground " tliat the p ar- a mount irit^gy ^( j)f the parties, as disclosed from the whole scope of th e c onveyance, and the nature of the property granted, should be th e c ontrolling rule .'' A number ot decisions, bearing a similar aspect, are cited in this opinion, which also displays, with much clearness, the impolicy of the opposite view. The commentator, with reference to this case, and other decisions, thus sums up the result: "The rule, therefore, which the Pennsylvania courts regard as the true one, and y^ which, perhaps, on the whole is the wisest one, would seem to be tha t Ud. • Q^-Kt^ Q ' n othing short of an intention expressed in ipsis verbis, to 'exclude' th e " soil of the highway, can exclude it." And this doctrine, although it cannot be said to be sustained by the greatest number of decisions, is, I think, the one that ought to be adopt- ed in this state. In our practice in the conveyance of lots bounded by s treets, the prevailing belief is, that the street to its centre is conveye d with the lot. Among the mass of the people it is undoubtedly supposed that the street belongs, as an appurtenance, to the contiguous property, and that the title to the latter carries with it a title to the former. This 16 See, also, Cox v. Freedley, 33 Pa. 124, 75 Am. Dec. 5S4 (1859), 442 DERIVATIVE TiTt.ES (Part 2 belief is so natural that it would not be easily eradicated. As a general I^ractice, it would seem preposterous to sever the ownership to these several particles of property. Under ordinary circumstances, the tl ^ead of land c on stituting the street is of great value to the contiguou s lots, and it is ot n o value separated from thenT It would rarely occur that the vendee ot a city lot would be willing to take it separated in ownership from the street, and it would as rarely occur that a vendor would desire to make such severance. In my own experience, I have never known such an intention to exist, and it is safe to say that when- ever it does exist, the conditions of the case are peculiar. A nd it is the very general notion that these two parcels of proper ty are inseparably united, and pass as a whole by force o-f an ordinar y conveyance, that accounts for the absence of any settled formula in general use for the description of city lots in a transfer of their title. Upon an examination of such conveyances, it would, I am satisfied, be disclosed that the utmost laxity in this respect prevails. The proper ty c onveyed is indiscriminately described as going to the street and run - n ing along it, or as going to one side of such street and thence runni ng a lon ^c r such side . Such discriminations are not int entional, the purpose being to convey all the interest t hat the seller has in the property and / in its belongings, and the mode of accomplishing this purpose is not the subject of attention, the street lot, as I have said, being regarded as a mere adjunct of the property sold, and worthless for any other use. Tjiis being undeniablv the practice and general understandin g. to give a close and literal meaning to the descriptive terms employ ed i n such inst ances would serve no useful p urpose, but its tenden cy would be to defeat the object in view, and to call into life a vexatio us l itigation. The particular words should, in such transactions, be con- trolled and limited by the m anifest intention which is unmistakably dis- played in the nature of the affair and the situation of the parties. When the conditions of the case are altered, as if the vendor should, in a given case, have an apparent interest to reserve to himself the par- cel of street in question, a different rule of interpretation might become proper. So if the abutting street referred to in a conveyance should be such only in contemplation, and should be contingent on the will of the vendor, the rule now adopted might not, and probably would not, be applicable. But where the street is an ex isti ng highway, or has be en d edicated as such by the vendor, or in case, by the eftectof his co n- \'^yance, he imposes on himself the obligation to devote the street to t he public use, the rule then becomes the criterion by which the sens e of the deed is to be ascertained . The only case in our books that I deem entirely_apposite to the pres- ent inquiry, is that of Hinchman et al. v. Paterson Horse Railroad Co., 17 N. J. Eq. 75, 86 Am. Dec. 252. The extreme fitness of this de- cision, as an authority at this time, does not appear upon reading the report of it; but I have looked at the original papers on file, and have found that in some of the deeds in that proceeding, the descriptions of Ch. 3) THE PROPERTY CONVEYED 443 the boundaries of the lots are not distinguishable from the one now under our view. Those lots were described as beginning at a fixedj point on a designated side of the street, and thence along such designat- ed side, &c., as in the present instance. The descriptive words, there- fore, were clear, and if they were not overruled by the predominant presumption of intent arising out of the nature of the act done, it was impossible to hold that any part of the street passed to the vendee. But Chancellor Green did hold that the parcel in the street passed, saying: "It is objected, by the defendant's answer, that the complain- ant's titles do not extend to the middle of the street, because the lots, as described, are bounded by the sides of the streets. But the esta b- lis hed inference of law is. that a conveyance of land, bounded on a p ublic highway, carries with it the fee to the centre of the road, as part and[ parcel of the grant." I do not know how this decision is to be sanctioned, except upon the ground already marked out. I regard the case as directly in point, a nd i t is unnecessary to sav that it is of the highest authority . T he result to which I have come is. therefore, that this conveyan ce e mbraces the parcel of land in the street, for the reason that there are n o express words of exclusion of such parcel . ^'I'lie consequence is, the juagment of the court below should be af- firmed. w ith costs.^'' ^A/^itit^*^ <|^^v d'*^ . ~" 17 See Bu^k v. Squiers, 22 Vt. 4S4 (1850), contra. Redfielri, .T.. dissenting. "Coiuinir. then, to the ca«e in hand, I find nothing to exdude the bed of the stream, except the va}:ue words, 'h? etrinniiig at n noint in tlie easterly bank o f t lie I'assaic,' and the furtlier words, 't o tlie easterly line of the Passaic river and thence along the easterly line of the~l';issaic river the several courses the re- of.' etq. These words are no^in ore indicat ive of an intention to excluile the st ream than were the corres nondT iig word s 1(1 billter v. Juilil^. T o ^■V t7rrnJg~t h e s treet. In both "the easterly line' is declared in terms to be the boundary. Hut, looking at the surrounding circumstance^ 1 find no more reason for giving them an exclusive effect in the one t-ase than in the other." Simmons v. City of I'aterson, 84 N. J. E(i. 28. 2i), 94 Atl. 421. 424 (1915). But see Whittier v. Montpelier Ice Co. (Vt.) 90 Atl. 878 (191Z ; Hennessy v. Murdock, 137 N. Y. 317, 446 DERIVATIVE TITLES (Part 2 5 A 4> 323, 33 N. E. 330; Sizer v. Devereux, 16 Barb. 160; Champlin v. Pendleton, 13 Conn. 23, It will be observed that, by the description given in this deed, the exterior lines of the streets are also followed ; b ut bv a subsequent clause she states that the convevance is to inclu de all the right, title and interest which she has to that portion of West - cnester avenue and Rogers place "Ivi np;- in front of and adjacent to said lo ts to the center of sa id avenue and place, as laid down on sa id map, ' tnus indicating a n intent to convev to the center of the streets . Again, on the 23d day of August, in the year 1890, the plaintiff con- veyed t o Tames G. Patten and William H. Sutcliff another parcel of land described upon the map filed by her as lot number 2 in block ^ 13, beginning at a p oint on the northerlv side of Westchester avenue, dis- tant 30 feet easterly from the corner formed by the intersection of said northerly side of Westchester avenue with the easterly side of Steb- bins avenue ; running thence northerly parallel with said Stebbins ave- nue 128.71 feet; thence easterly and at right angles with said Stebbins avenue 30 feet; thence southerly and again parallel with Stebbins ave- nue 128.71 feet to said northerly side of Westchester avenue, and thence westerly along said northerly side of Westchester avenue 30 feet to the place of beginning. I n this deed she has designated tJi e s ^eet which. she marked upon her map as Westchester avenue, whic h i n her first deed she called One Hundred and Sixtv-Third street. By a subseq uerit clause of h er deed she provides that it includes all of her right, t ide and interest^^ . in and to that portion of Westchester ave- nue lying in front of a nd a djacent to said lots to. the center of said avenue," thus indicating an in tent to convev a fee to the cente r of Jhe avenue.. The defendant Spaeth, by subsequent mesne convevances. h as acquired the title of Patten and Sutcliff and the defendant, the Hudson RealtyjCompany, has. acquired the title of Farrell. Our conclusion, therefore, is that the judgment appealed from should be m odified in so far as lot number 1 is concerned, owned bv the de- fen dan t Ehrich, s o as to limit his t itle in the la nds in controversv, to t he easements of li.ght^ a i r and access, with the right to have such lan ds kept open and used as a street, and that as so modified, the judgment should be affirmed as to him and the other respondents, with costs to the respondents Spaeth and the Hudson Realty Company, but withou t costs to either party as to the respondent Ehrich. CuLLEN, Ch. J., and Gray, Vann, W^erner, Willard Bartle:tt and Chase, JJ., concur. Judgment accordingly. Ch. 3) *HE PROPERTY CONVEYED u>^n DODD V. WITT. ^^v^ / / ^^ ■ '^ N: k 47^, '^^^^ (Supreme Judicial Court of Massachusetts, 18S5. 139 Mass. 63, 29 52 Am. Rep. 700.) W rit of entry to recover a parcel of land in North Adams . Plea, nul disseisin. Trial in the Superior Court, before Gardner, J., who di- rected a ver dict for the demand ant, and reported the case for the de- termination of this court. The facts appear in the opinion. Field, J. Thp dem^udeA premi'^P'; are a__s1jip tvyn yods wide on the , ,,^ westerly end of the lot described in the demandant's deed . The de- H^ic*-'''***'*'**' mandant derives title from R euben Whitman , who in May, 1866, con- veyed the premises t o Thomas H. Lidfo rd by a description as follows : "Commencing on the road at the southeast corner of the land that I • gave D. H. Raymond a bond to convey; thence west 22 deg. 30 min. 1-Ia.aA**^**^ j '^ N. ten rods; thence south 22 degrees 30 minutes west four rods; ^-^^^^^^j^^ thence east 22 degrees 30 minutes S. ten rods ; thence soutTi" on the (j ^ ' ^ ^ — road to the place of beginning." The descriptions in the inesne con- yt^yC^ ^*»*-r veyances are substantially the same. T he road was four rods wide , and Reube n Whit man when he executed his deed owned the fee o f ^W— ^i^—— < ^ 11 >i*— — ■^■w— ^^^i.— — ■ II I !■ I—.— —i— 1,11 11 ■■■■■■II iiwi» I la^i— — ^iWWi—^— i_t. The deed therefore co nveyed the land to the centre line of the highway. Peck v. Denniston, 121 Mass. 17; O'Connell v. Bryant, 121 Mass. 557. The tenants contended, that, by the construction of the deed, the side lines of the demanded premises extended ten rods from the centre line of the highway, or e i.ght rods from the westerly side of the high- [/^^^^^ ^"^"^ way; or, if this were not the true construction, that there was an -fg-z^^^^ a^rimguitv in the description ; and they offered "John Lidford, father of said Thomas H. Lidford, as a witness to prove that at the time of the execution of the above-mentioned deed from Reuben Whitman to Thomas H. Lidford, the said witness was present; and t hat said W hit- man measured on the west line .of the road above mentioned westerl y e i^ht rods, and fixed a monument :Ht ^^""^ nnrthA,vpst corner of the lo t; thence soutlifrly four rods to the southwest corner, and fixed a monu - ment: thence southerly eight rods to the west side of the highway ; thejice on the highway to the pla ce of beginning; that his son Thomas H. Lidford and himself built a fe nce ^rrn^< th<^ yrect pnH nf said lot from corner to corner, as indicated by the monuments thus erected, at the time of said deed to Lidford, w hich f^nce remained until after the demandant went into possession under his deed; that the land inchide d within said measurement was all that Thomas H. Lidford purchased % as he understood it at the time , except that he was told by Whitman "^ (jXP^^*^ ^ t hat his grant really extended to the centre of the highway, which Ji e ^ • /^ ^ was told was four rods wide." The c ourt excluded this testimo ny. i^''*-V^'^ '^ j arid ruled "that there was n o ambiguity in t"h'e deeds offered by the * plaintiff; that the monument called for 'on the road' was by the side of the road, and not the centre of the road;" and directed the jury 448 DERIVATIVE TITLES (Part 2 t o render a verdict for the demandant . T his is a ruling that, by th e t^ y^>-vtr»«^c qn.struction of the deed, the lines extended ten rods from the westerl y ^1^1^^ 1/ 'jj sjde of the road. >v^^'*-^ ^^^f) In Peck V. Denniston, ubi supra, Chief Justice Gray says : "The jrZ< /VO"**"^ general rule is w gll settletj that a boimdary on a way, public or p ri- v ate, includes the soil to the centre of the way, if owned by the gran tor, a nd that the way, thus referred to and understood, is a monumen t wnich controls courses and distances, unless the deed by explicit sta te- ment or necessary implication requires a different construction. New- hall V. Ireson, 8 Cush. 595, [54 Am. Dec. 790]; Fisher v. Smith, 9 Gray, 441; Boston v. Richardson, 13 Allen, 146; White v. Godfrey, 97 Mass. 472; Motley v. Sargent, 119 Mass. 231." N ot one of these cas es, however, considers the construction to be given to a deed in which a highway is a point of departure for a mea s- In Newhall v. Ireson, ubi supra, the line was "running northerly seven poles to the county road, and from thence upon the road twenty- two poles to the first-mentioned bound." The seven rods terminated on the north at an old wall, which formerly constituted the southerly boundary of the road. The court held that the line ran to tlie centre of the road, although this was more than seven rods. The rule is stated in Motley v. Sargent, ubi supra, as follows : "It t /^^L^-^^s a g eneral rule of construction that where there is a boundary up on ^^•^•^^•^y' ^ a fixed monument which has width, as a way, stream, or wall, even i f jtj.jL'^^ t he measurements run only to the side of it, the title to the land cot^ - \^ , veyed passes to • Qie line, which would be indicated by the middle^ "^ the monument." ~ ~~~~ ' I ... M The rule is then well established when the road is the terminus ad quem, but there is little authority when it is the terminus a quo, and tliere is no monument at the other end of the line. A majority of the court is of opinion, that it is a common metho d of measurement in the country, where the boundary is a stream or way, to measure from the bank of the stream or the side of the way; and t hjt there is a reasonable presumption that the measurements were made in this way, unless sometliing appears affirmatively in^ ^e d ^ed to show that they began at the centre line of the stream or Vv^ay . The ruling of the court, in the construction of the deed, was therefore p rima facie correct, as there was no monument to determine the other end of the line. B ut this presumption can be controlled by evidence t hat the parties at the time of the convevance established monument s of the boundaries. Without determining whether, in this case, there can be said to be a latent ambiguity in the deed, (see Hoar v. Gould- ing, 116 Mass. 132), or merely an indefiniteness in the description, we lyu a re of opinion that the acts of the parties contemporaneous with the ' \ delivery of the deed in fixing the monuments, and the subsequent fenc - . » ing of the lot and the occupation in accordance therewith, are admissi- J- cA (t*' r Ch. 3) THE PROPERTY CONVEYED 449 b le in evidence upon the cons tracliO B to be g^iven to the deed . Blaney V. Rice, 20 Pick. 62r32"Am7Decr204 ; Stewart v. Patrick, 68 N. Y. 450; Hamm v. San Francisco (C. C.) 17 Fed. 119. New trial. —^<^. /- SECTION 2.— EXCEPTIONS AND RESERVATIONS DORRELL v. COLLINS. (Court of Queen's Bench, 1582. Cro. Eliz. 6.) Ejectione firmas. Upon not guilty, the jury found that the master and scholars of the college of Sinkford were seised in the time of Hen. 8 of the manor of Hodley , of which the place, &c. is parcel, and l et all their lands in Lambehurst (except the manor of H odky., -in Kent, and Sussex) to T. S. for years : and they further find, that the master and scholars h ad no other lands in Lambehurst than the said manor. The question was, if the manor passeth by the lease ? And all the Court held, that it being found they had no other land than the manor, t he exception is void, because it goeth to the whole thin o- demised ; otherwise of an exception of part * ♦ * i» ^ ^U*-^' WHITAKER v. BROWN. (Supreme Court of Pennsylvania, 1S63. 46 Pa. 197.) Error to the District Court of Allegheny county. This was an a ction of trespass vi et armis , by Anthony Whitaker against William H. Brown, to recover damages for breaking and en- tering the plaintiff's close, and for digging , mining, a nd carrving aw av thirty-nine thousand six hundred and twentyfive bushels of bituminou s coal, and converting and disposing of the same to his own use . After the plaintiff had offered all his evidence, the defendant's coun- sel m oved the court to enter a peremptory nonsuit under the Act o f Assembly, which was done, and this was the error assigned her e. The facts of the case are sufficiently stated in the opinion of the court. Woodward, J. On the 14th of March 1853, Boyle Irwin and wif e conve yed by war ranty deed, six and a hal f acresjof land in Alleghe ny 18 The remainder of the ease is omitted. Cf. Foster v. Rank, 109 Pa. 291, 58 Am. Rep. 720 (1SS5) ; Adams v. Warner, 23 Vt. 395 (1851). A conveyance is made of a tract of land, describing same "excepting one acre with the buildings thereon." What would be the result thereof? Aig.Prop.— 29 ^ cfCc^ > t . ^ 450 y% DERIVATIVE TITLES (Part 2 c ounty, to ATlthony Whitaker in fee, "he, the said Boyle Invin, saving a nd reserving nevertheless for his own use, the coal contained in th e s aid piece or parcel of land, together with tree ingress and egress b v wagonroad to haul the coal therefrom as wanted ." Boyle Irwin is dead, and his rights in the coal, if descendible, are vested in his heir s, the defend ant justifies his entry to take coals . V*^^--"^ . IIT It is argued that the above clause of the deed constituted a strict and tprhniral rpsprvafinn^ whirh, having n o words of perpetui ty, died with Irwin, and t^"'^r'^f''"'f th?t \\'1iitnl'pr now has a several and ex- cl usive title to all the rnnl in the land conveyed to him. On the Other hand, the argument is, that it was iiot a rese rv'ati^n bi it an exceptio n, nd therefore that no title to the coalpassed to Whitaker by the deed. he question is. whether the words of the deed constituted a resery a- lon or an exception . Although they were apt words to constitute a reservation, yet so fa r a s they affect the coal, they must operate as an exception, because th e coal was a corporeal her .£ditamgut, in^^^ss e at the date of the deed , part of the land itself, and therefore not the subject ofa reservat ion. Says Lord Coke, "note a diversity between an exception (which is ever of part of the thing granted and of a thing in esse) and a re s- e rvation, which is always of a thinof not in esse, but newly created, o r reserved out of the land or tenement demised ." And his criticism upon the word reserve is as follows: "Reserve cometh of the Latin word reserve ; that is, to provide for store, as when a man departeth with his land, he reserveth or provideth for himself a rent for his own livelihood. And sometimes it iiath the force of saving or ex- cepting." 2 Thomas's Coke Litt., star page 412. And so in Shcp- pard's Touchstone we read that " a reservation is a clause of a def d. whereby the feoffor, donor, lessor, grantor. &:c.. doth reserve som e new thing to himself out of that which he granted before. . This d oth differ from an exception which is ever a part of the thing grant ed, and of a thing in esse at the time ; bu t 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 tliat which was not before, or abridge the tenor of that which was before.^® If one gr?^nt land yield - i ng for rent money, corn, a horse, sours, a rose, or any such things, tlii s i s a good reservation ; J)ut if the reservation be of the grass, or of the vesture of the land, or of a common or otlie^jrofit to be taken 19 See Emerson v. RIooney, 50 N. IT. 315 (1S70), which determ ined the extent o f the iiliiintiff's ri^lit to t;ike water thruUKh ;in ;iT|iiHiiii(r nolli !i wt^il uii ili je defeiulaiit s land ! Tlie pliiintiff had duii a well on the land Avhicb later came to the defendant, and liail laid an aqnednct from the well to certain Imildiiigs on.otiier lands. A conveyance had been made by plaintilf to the defendant's prede»^>v.0UA Igaac Kister brought this suit. ' ' \2^ The plaintiff requested the Court to charge, substantially, that the **-^L4« X^H^ right to a road reserved by William Reeser in his deed to Drorbaugh O not jT a ying 'beepres erved to the hei r s and assigns of ^Villi^im Reeser . ceaseTan H determined' on the deathT^ William Ree-^er in ATarc|i^ 187^ . C^rfjt^^ g€c^ 4n^! ^thaTTuch reservation was no justificationiif the trespass commit =-^- (JjC^i.a-aX ted by the defendant., TheCourt declined so to charge. O'^ The defendants submitted, inter alia, the following point : 2. That under the legal effect of the reservation in said deed from ^ #/c«».rf^d^ William Reeser to Drorbaugh, the portion of land ten feet wide along iTTl* • the line of Joseph Burger, for the use of a road, i s excepted out of the ^Crvt-^CtC^uc-en grant, and remained as it was before for tlie purposes of a road ; that t he evident purpose of said reservation was to furnish egress and rer gress from the other lands of the g j ^rantor to and from the public rQ gd l eading to Goldsboro', and the defendant, being the owner of those other lands, had a legal right to pass in and out to said public road, over the said land reserved in said deed, and committed no trespass in do- ing so. Answer. Under the reservation in the deed of William Reeser and wife to Henry H. Drorbaugh for nineteen acres and thirty-five perches, dated September 30th, 1865, t he defendant had a legal right to pass over the road reserved Jn said deed, and did not commit a trespa^ by entering as he did the premises of the plaintiff. The Court further instructed the jury th at the plaintiff was not en - t itled to recover, and directed them to find for the defendants - V erdict accordingly for the defendants, and judgment thereon. The plaintiff took this writ of error, assigning for error the answers to points as above, and the instruction to find for the defendants. Trunkey, J. William Reeser, by deed dated September 30th, 1865, conveyed to Drorbaugh part of a tract of land which he then owned, and Drorbaugh's title has been vested in the plaintiff. The deed con- tains this clause: "The said William Reeser doth reserve a road ten feet wide along the line of Joseph Burger, to be shut at each end with a bar or gate.'' Prior to the conveyance there was neither a public 454 DERIVATIVE TITLES (Part 2 nor private road over the land . The owner in fee of land may travel over it when and where he pleases, and it would be vain to speak of his right of way within his lines. W illiam Reeser died in 187 2. The court properly treated the question as one of law ; for, aside from the conceded facts, there was no evidence to affect the construction of the deed or clause of reservation. If tha^laus^^r^xceptio n of lan d ten fee t wi de, next to Burner's ime^n^pIamtir^va^To^CTtitled t o recover! But if it is a re servation of a way over said land , the def en d- ants we re tresj^sers. i'he land was granted in fee and a road re- served next Burger's line. This was to be shut at each end, and, sub- ject to the grantor's use for a road, the grantee could enjoy it for all purposes. The word road has never been defined to mean land ; it is difficult to find a definition which does not include the sense of way, though the latter word is more generic, referring to many things be- sides roads. Road is generallv applied to highway, street, or lan e, o ften to a pathway, or private way, yet strictly it means only one pa r- t icular kind of way. Its sense in this deed is very clear. Taking the entire clause, with reference to the grant, it means the ^ gse^v ^tion o f a way. This is as plain as if the word way were in place "of™ oad. Lawyer and layman alike would understand the word road in this clause in the same sense as it is used in the statutes providing for grant of "private roads." A private road, obtained bv proceedin^'-s under t hose statutes, is a rnere wav. the owner of the vy ny hnvin,o- no interest i n the land . ^'^ A p rivate way is an inc orporeal hereditame nt of a real nature, en- tirely different from a common highway; it is "tine right of going over another man's ground." Where land is granted and the right of wa y r eserved, that right becomes a new thin g, derived from d ie land : and although, before the deed, the grantor had the right of way over the land whenever he chose to exercise it, yet when he conveyed the land the reservation was a thing separated from the right of the grantee in the land : State v. Wilson, 42 Me. 9. A reserv atio n is the creation of a r jght or interest which had no prior existence as such in a thinr.-Qr p art of a thing granted. It is distinguished from an exception in that it is of a new right or interest. An e^xcgg]j g jj| is always of part of th e -^ /^^v*. t hing granted, it is nf the whole nf th* part_oxrepted. A reservation ^•'^['3--— 1 may be of a lrigh t or_interest in the particular part which it affects. • v^^^t^ These terms are often used in the same sense, the technical distinction \^ being disregarded. T hough ^pt words of reservation be u<^p<\ thev w jll be construed as an exception, if such was the design of the partie s. Thus, when a deed in fee of land was made, the grantor "saving and reserving, nevertheless, for his own use the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon- road to haul the coal therefrom as wanted," it was held that the saving clause operated as an exception of the coal. The coal was land and the reservation of that part of the land excepted it from the grant. It was a thing corporate, existed when the grant was made, and differed Ch. 3) THE PROPERTY CONVEYED 455 from something newly created, as a rent or other interest strictly in- corporeal : Whitaker v. Brown, 46 Pa. 197. H,ere. the saving claus e Ji^ cr eated the way over part of the land granted , a right strictly- incor - R Qreal, and is not an exception of part of the land contained in th e grant. judgment reverse d, and ve nire facias de novo awarded.^* ...^fU^ .- ^ DEE V. KING. '^ ^Vui JtyjCcA-^ZC^n^' ^ (Supreme Court of Vermont, 1905. 77 Vt. 230, 50 Atl. 830, GS L. R. A. SCO.) Watson, J. When tliis case was here before {7Z Vt. olh, 50 Atl. 1109,) the decree was reversed pro forma and the cause re manded f or ac^ditional findino-s of fact by the special master , as to the time whe n. with re_ference to March 16. 1882. [^ared Dee asked and obtained per - mission of the defendant to c^ross his ^hree-acre piece of land o n the east side of the Central Vermont Railroad. On tlie 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 t hat Tared Dee first asked and obtained of the defendant pp^ f-missinn fn rrnss that land in January. 1882 . The orator seasonably objected and excepted to the defendant's testifying to any conversation had between him and Jared Dee on this point, because Jared Dee was dead. The defiendant was called and used as a witness by the orator at the first hearing, upon the question, among other things, whether Tare d^t-^^^ i^ <^^^ f Dee passed through and over the three-acre piece, his habit and custom !• - • /) jn so doing, to what extent, under what circumstances, and for what .yA-*.4.**»-*'<-*-4^ ' purpose. The orator made the defendant a general witness upon that to question, and he thereby waived the statutory incompetency of the 21 " It is to be observed that a rjprht of y a y cannot, in strictness, be roade th e ^ subject either of exception or reiser v atlo'n. It is neither parcel of tlie tiling — '' / - - granted, nor is it issuinj; out of the thing granted; the former being essential ^.c*^-v Atl. It:^^ (1!>04) ; IvarnnilU ^\1-^ -mLC- ■V't^tJ- L-i. ^^magic vvprd. TRoss v. McCee, OS Md. 380, b(> Atl. IT^S (l!)U4) ; Karnniiier ^^rotz.ls Iowa, 352 (1S(J5) ; Euhnke v. Aubert, 58 Or. 6, 113 I'ac. 3S (1011), contra. Uf. Lathrop v. Eisner, 93 Mich. 599, 53 N. W. 701 (1802). 456 DERIVATIVE TITLES (Part 2 defendant as a witness. Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042 ; Ainsworth v. Stone, 73 Vt. 101, 50 Atl. 805, — and he could not after- wards complain because the defendant gave testimony in his own be- half more fully upon the same subject matter. Ta red Dee having obtained permission of the defendant to cross the three-acre pie ce within fifteen years next after March 16. 1867^ the orator can haveno prescriptive way over it. A right of way over this land is neither^sef 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 wav claim ed ^ ^ ]|j,m^jy ^r over the defendan t's land so far as appears by the bill, i s ov er the one-half acre piece on th e \ve st side of the Central Vermont Railroad, as r eserved b y Jared Dee in his deed October 7, 1862, conveying that land to William W. Pet- tingill. In that deed immediately following the description of the land conveyed is the clause "r eserving the privilege of a pass. from the hi gh- way past the house to. the railroad in. my usual place of crossin g." The defendant contends that these words are only a resen^ation of a person al pr i vileg e to Jared Dee which could not pass to his heirs or assigns because n o words of inherita nce or assignment were used in c onnection therewith; while the orator contends that the clause has the force of a n exception, and that the servient estate thereby created passed to the subsequent owners of the dominant estate without such words of limitation being used. Much depends upon the construction given in this regard, in the disposition. of the case. Lord Coke say s t hat "reserving" som_etimes has the force of saving or excepting, "so as sometime it serveth to reserve a new thing, viz. a rent, and some- time to except part of the thing in esse that is granted." Co. LitL 143, a. S heppard says that "a reservation is a clause of a deed where by t he feoffor, do n or, lessor, grantor, etc., doth reserve some new thing t o himself out of that which he granted before . And this doth, most com- monly, and properly, succeed the tenendum, * * * This part of the deed doth differ from an exception, which is ever of part of tji e 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 be- fore, or abridge the tenure of that which was before." Shepp. Touch. 80. Again the same author says, that an exception clause most com- monly and properly succeeds the setting down of the things granted; yt, that the thingjexcepted is exempted and does .not pass by the grant. Page 77 . The same principles were largely laid down by this Court in Roberts v. Robertson, 53 Vt. 690, 38 Am. Rep. 710. There the deed given by the plaintiff contained a specific description of the land con- veyed, 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 woxds creatinjs;' an exception are to have that Ch, 3) THE PROPERTY CONVEYED 457 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 t hat a ri g ^ht of way cannot in strictnes s i^^i^^^JsL. b e made the subject of either an exception or a reservation ; for it is ^?^^|V^ ' 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 -*''^^'^tP''^*_ v. Lock, 2 Ad. & E. 705 ; Durham, etc., R. R. Co. v. Walker, 2 Q. B. •U/4-«^»>u'^ 945. B ut ther e , as in this country, quasi easements are recognized in l aw, such as a visible and reasonably necessary drain or way used by t he owner of land over one portion of it to the convenient eniovment o f another portion , and there has never been any separate ownership of the quasi dominant and the quasi servient tenements. As such ease- ment, a drain is classed as continuous, because it may be used continu- ously without the intervention of man ; and a right of way as noncon- tinuous 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 re- garding such easements of an apparent and continuous character, that if the owner aliens the quasi dominant part to one person and the quasi servient to another, the respective alienees, in the absence of ex- press stipulation, will take the land burdened or benefited, as the case may be, by the qualities which the previous owner had a right to attach to them. And in Brown v. Alabaster (1888) Z7 Ch. D. 490, it was said th at although a right of way by an artificially formed path over on e A(t#<* "^ p art of the owner's land for the benefit of the other portion, could no t JL^^^^^^X* be brought within the definition of a continuous easement, it might_ be governed by the same rules as are apparent and continuous easeme nts. "Cases involving quasi easements~have been beTore this Court. In Harwood v. Benton & Jones, 32 Vt. 724, the owner of a water privilege, dam, and mill, also owned land surrounding and bordering upon the mill pond and mill, which he subjected to the use and convenience of the mill privilege and mills. A part of these adjacent lands thus sub- jected was conveyed without any stipulation in the deed that any servi- ent condition attached thereto. The condition of the estate had been continuous, was obvious, and of a character showing that it was design- ed to continue as it had been. The Court said this was a palpable and impressed condition, made upon the property by the voluntary act of the owner. It was held that, without any stipulation in the deed upon that subject, the law was that the grantee took the land purchased by him, in that impressed condition, with a continuance of the servitude of that parcel to the convenience and beneficial use of the mill. It w as jV th ere laid down as an umquestioned proposition that "upon tlie se ver- 3^*2 V*, a nce of a heritage, a grant will be implied of all those cont i nuous and appare nt easements which have in fact been used by the owner durin g t he umty , though they have had no legal existence as easements ;"_apd t hat tlie doctrine was equally -\vell settled that the law will imply a re.s - ei^^^ ^iion of like easements in favor of the part of the inheritance retain - ed by the grantor. In Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 458 DERIVATIVE TITLES (Part 2 671, a "visible, defined way in use for the obvious convenience of the whole building"' was in question, consequent on a division of the prop- erty among the representatives of the deceased owner, and the same principles of law were applied. And in Willey, Admx., v. Thwing, 68 Vt, 128, 34 Atl. 428. applying the same doctrines, a right of way was upheld under an implied reservation. In this country it is commonly held that a wav may be the subject o f a reservation, and in many cases courts of high standing have hel d t hat it mav properly be the subject of an e xcepti on in a gran t. While it is true that an owner of land cannot have an easement in his own es- tate in fee, he may as before seen have a quasi easement over one por- tion in the character of a visible, travelled way reasonably necessary to the convenient enjoyment of another portion, a nd when such a w ay e xists, there would seem to be no substantial legal reason why it m ay not be treated as a thin j g in being , and as a part of the estate included in the descri])tion of the grant be made an exception in a deed of the land over which the way is, when such appears to havp hepn tl 2Li!l!-1"' t ion of the parties. I'hat this is the principle upon which a clause re- serving a way is construed as an exception appears from Chappell v. N. Y., N. H. & H. R. R. Co., 62 Conn. 195, 24 Atl. 997, 17 L. R. A. 420, which is more particularly referred to later. There the Court said : "T hen too the right to cross was, in a certain sense, a ri^ ht e xisting in the grantors at the date of the deed. It was a part of the ir f ull dominion over the strip about to be conveyed by the de^fl , nnd n nt- a right to be, in effect, conferred upon them by the grantee s. It was something which the 'reservation' in effect ' excepted' out of the opera- tion of the grant." „^rrr:=^.T: "- The distinction between a reservation and an exception of a way is best understood by an examination of cases involving clauses very simi- lar to the one here under consideration, yet so unlike as to re(|uire cHf- ferent constructions in this regard. In Ashcroft v. Eastern R. R. Co., 126 Mass. 196, 30 Am. Rep. 672, the clause was "reserving to myself the right of passing and re-passing, and repairing my aqueduct logs forever, through a culvert * * * to be built and kept in repair by said company; which culvert shall cross the railroad at right angles," etc. I t wa s held that the provision that the grantee shou ld b uild and keep in repair the culvert was an essential part of the gran t. and clearly _i ndicated that the intention of the parties was to confe r ujjon the grantor a. new right not before vested in him, which, there - f ore, cm ild not be the subject of an exception . In Clatlin v. Boston & Albany CCo., 157 Mass. 489. Z2 N. E. 659, 20 L. R. A. 638. the clause was '"reserving to ourselves the right of a passage way to be construct- ed and kept in repair by ourselves." There was no evidence of an existing way across the land. It was held to be a reservation and not an exception.22 In Chappell v. N. Y., N. H. & H. R. R. Co. before 22 But see Railey v. Affawam Nat. Bank. 100 lMas5?. 20. 76 N. E. 449. .3 L. R. A. (X. S.) 'JS, 1\2 Am. St. K^p. 296 (1906), where there was involved the con- Ch. 3) THE PROPERTY CONVEYED 459 cited, John W. and Benjamin F. Brown, in 1851, owned a piece of land in New London fronting on the river Thames and lying between that river and Bank street. On the river front was a wharf and docks. Between the wharf and Bank street was about one and one-half acres of land used by the Browns in carrying on a coal and wharfage busi- ness. The wharf was valuable. In that year the Browns conveyed, for railroad purposes, a strip of this land, twenty-five feet wide, run- ning through the land and separating the wharf from the land lying westerly of the strip conveyed, and rendering it inaccessible except by crossing the strip. This right of crossing was indispensable to the Browns and all who might thereafter own the premises then owned by them. The deed thus conveying this strip contained the clause 'VAiid (,^2 C&%>%^%>^ . w ,e reserve to ourselves the priviles^e of crossing and re-crossing saicl p iece of land des cri bed, or any part thereof within said bound s." Thevv;ay at the tini e of the date of the deed was an existing on e pl ainly ^sible, necessary, and in almost constant use . _The clause was co nstrued to be an exception. In Bridger v. Pierson, 45 N. Y. 601, the defendant convevTcnancTto the plaintiff and immediately following the description the deed contained the clause "reserving always a right of way as now used on the west side of the above described premises * * * from the public highway to a piece of land now owned by" R. It was held to be an exce^ion. In White v. N. Y. & N. E. R. R. Co., 156 Mass. 181, 30 N. E. 612, the action was tort for the obstruc- tion of a private way claimed by the plaintiff over the location of the defendant's railroad, under a clause in a deed which read "reserving the passway at grade over said railroad where now made." This way had existed as a defined roadway or cart track, and had been used in passing to and from a highway to and from parts of tlie lot north of the tracks before the railroad was located, and before the deed re- ferred to was given. The clause was held to be an exception. These are but a few of the many decisions in different jurisdictions which might be referred to upon this question, but more are unnecessary. T he language of the clause under consideration cannot be said to b e unequivocal . We therefore look at the sur rounding circum stances existing when the deed containing it was made, the shuation of the parties, and the subject matter of the instrument; and in the ligh t /; j^ •yf'- t hereof . the clause should be construed according to the intent of the ^^^"y^ -^ parties. At tlie time of making this deed Jared Dee was the owner of 'li/t^tcyCf " lU stmctinn of the follov^irifr provision in a deed from INfoore to TTenry: " A pa s- ^^r'^*'^''^ s a^ewciy is to be k e i it open and for use in common between the two houses te n feet ill widtn, Hye T^et or said passageway to be furnisht^d bv said Llenry an d five feet bv me fro n^ land Iving east of the h^nd here convey ed." There w^tsiio p assaijeway in^'existence at tlie time of the deed . Henry later conveyed the same land 'to ttie defendant, who in turn conveyed it by deed with full cove- nants for title to the plaintiff. T ^e case arose upon a claim for damages fo r br each of the covenan t against in cuinliralic es. U iT ^j^Jjii ntiff was allowed to jie- c ovei~. despite the "Tact that JNToo re had diiHlTefore the deed to the piamTlg . See, also. Ch 'iids v. BoslOn & M. K. U., iiia xUass. 'Jl, UO N. E. 957, 48 U R. A. (N. S.) 378 (1912). 460 DERIVATIVE TITLES (Part 2 land on the opposite side of the railroad, consisting of a three-acre piece of tillage land, and a hill lot adjoining it on the north, chiefly valuable for its sugar works, for its pasturage, and as a wood and tim- ber lot. The last named lot is traversed its entire length from north to south and about a third of its width from west 'to east by a consid- erable hill, more or less ledgy and making it ex tremelv inconvenient to c ross from the grantor's own land north of the Fairbanks land. , bu t easily reached by the now disputed right of way arross the one-ha lf acre p iece, and over the three-acre piece of tillage land. The greater portion of Jared Dee's sugar orchard, timber, and wood was on top and east of this hill. There was no wav to or out of the hill lot exce pt o yer the hill on Tared Dee's own land west of the Fairbanks land, or out through the three-acre piece and the one-half acre piece onto the p ublic highway leading westerly to Jared Dee's hous e. For more than ten 3'ears next prior to the time when Jared Dee gave the deed to Pettingill, the D ees had passed over the one-half acre piece and t hrough the three-acre piece almost exclusively for all purposes wheji r ever they went to or from the hill lot , wh ether with team , on foo t, or in any other- mRn4^€4^. except when they got wood on the west side of the lot they went from the highway across the Fairbanks farm west of the railroad, thence over the railroad at the "middle crossing" onto the hill lot. And on rare occasions they used still another route fu r- t her north wholly over Dee's land . It appears from the deed itself that in crossing the one-half acre piece they had a particular place of travelling then known to both the grantor and the grantee, for the words used in the deed in describing it are " from the highway past th e house to the railroad in my usual place of crossing ." Thus showing the intentioi^ of the parties to be t hat the grantor should retain th e r ight to pass through this land over a visible, travelled way then i n existence, and that no new way was thereby being created for his bene - fit Clearly under the law and in the light of the foregoing circumstanc- es, the clause must be construed, not as a reserv ation, but as an ex cep- v( tiP-"' When given this construction, technical wor3s of limitation are not applicable, for the part excepted remained in the grantor as of his former title, because not granted. Cardigan v. Armitage, 2 Barn. & C. 197; Chappell v. N. Y., N. H. & H. R. R. Co., before cited; Win- throp V. Fairbanks, 41 Me. 307. We think the parties intended that by t his provision the grantor should permanently retam from the gra nt f or the benefit of his land east of the railroad, the wav over the on e- C^ half_acre piece, which he had been accustomed to use in crossing tha t l andTto and Jrom the land first name"d The way, thus retained became an easemen t over the half-acre piece of land and an appurtenant to the ^ other land ; and witli the latter it w ould pass by descen t or assignm ent. Subsequent to conveying the one-half acre lot to Pettingill, Jared Dee sold and conveyed the three-acre piece, which t hrough mesne con- ( vejyanc es has become the property of tlie defendan t. But this cannot Ch. 3) THE PROPERTY CONVEYED 461 affect the easement as an appurtenant to the hill lot ; for a right of w ay a ppurtenant to land attaches to every part of it. even though it may g o i nto the possession of several person s. Lansing v. Wiswall, 5 Denio (N. Y.) 213 ; Underwood v. Carney, 1 Cush. (Mass.) 285. The master finds that if upon the facts reported the orator has a right of way or a right to cross over defendant's land to the hill lot, then the orator has suffered damage by reason of the acts of the de- fendant complained of in the bill, to the amount of sixty-five dollars. The o rator can recover only such damages as he ha<; siiffered by acts of the defendant in obstructing the way across the one-half acre piece , consideri ng fhe. fact that the orator had no ris^ht of wav^ver or rig ht t o cros st he defendant's three-acre piec e. Upon this basis the damages have not been assessed. The report should therefore be recommitted for that purpose, and upon such damages being reported, a decree should be rendered that the inju nction be made perpetu al, and that the defendant pay to the orator the damages found with costs in this Court. The costs in the court below should be there determined. The d ecree dismissing the bill with costs to the defendant is r e- versed and cause remanded with mandate.^^ SMITH'S EX'R v. JONES. (Supreme Court of Vermont, 1912. 86 Vt. 258, 84 Atl. 866.) C ase for obstructing a private wa y. Plea, the general issue. Trial by court on an agreed statement of facts at the September Term, 1911, ' Franklin County, Waterman, J., presiding, j udgrnent for the plaintiff '. The d efendant except ed. The opinion states the case. MuNSON, J. The plaintiff sues as executor of Francis Smith to re- cover da mages for the obstruction of a private way which crosses th e d efendant's land, called the Pratt farm, to a wood lot immediately ad - i oising'. which belongs to Smith's estate and is in the possession o f t h^ executor . In 1867 Smith, then the owner of both parcels, con- veyed the farm to a grantor of the defendant by a deed which contained the following clause: " Reserving the right at reasonable times and in a reasonable way to cross said land below the road to my wood lo t." There is no similar clause in the succeeding deeds, but each of these contains a reference to the deed immediately preceding. Since the con- veyance of Francis Smith the o wners of the wood lot have had_ no o ther means of reaching it than the claimed right of way . The par- >?^ ties submit the question whether t his easement ceased with the life o f / ^ J F rancis Smith, or inures to t he benefit of his h eir s and estate. L^"""^ There is nothing in the agreed statement to show that at the date 23 See Smith v. Furbish, 68 N. H. 123, 44 Atl. 398, 47 L. R. A. 226 (1894) ; York Haven Water & Power Co. v. York Haven Paper Co., 201 Fed. 270, 119 C. C. A. 508 (1912). 462 DERIVATIVE TITLES (Part 2 of the Francis Smith deed there was a defined and visible way across the grantor's farm to his wood lot. S o the way mentioned in the dee d •^ must^ b g taken to be a new way, not in being previous to the pyfrnti nn of the deed . I_fjhere had been an existing road, the provision in ques- tion could be construed as an exception, and thus accomplish a re- tention of a right of way. Dee v. King, 77 Vt. 230, 59 Atl. 839, 68 L. R. A. 860. T he terms "reservation" and "exception" are often use d a s synonymous when the thing to be secured tn thp grantor is a part of t he granted premises, and when so used they are to be construed a c- cordingly- 2 Wash. Real Prop. *645. If given their technical mean- ing, an e xcept ion is something withheld from a grant which otherwise would pass as~a~part of it, while a reservation is some newly created right which the grantee impliedly conveys to the grantor. Ashcroft v. Eastern R. R. Co., 126 Mass. 196, 30 Am. Rep. 672; Bailey v. Aga- wam Nat. Bank, 190 Mass. 20, 76 N. E. 449, 3 L. R. A. (N. S.) 98, 112 Am. St. Rep. 296. The extreme technicality of the latter concep- tion is apparent. It would be easier and ne arer the trut h to say that a r eservation is an interest which the grantor creates and 'excepts orj rg- y^ serves from his gra nt. Then the interest classed as a reservation would remain in the grantor, and an easement in fee would arise with- out the use of the word "heirs." I t is still the rule of the common law that an easement in fee ca ji- npt be created bv~way of a reservation without wdr'ds of inheritaj ic e . • But it has been held that term<; pf reseryation may be construed as c onstituting an exception whe i T^ this is necessary to effe£ tua te_tli e "^ Pi'IPQse„ o_f_ the parties"""^ It seems to be considered that the parties may use the term in a sense different from its technical meaning, and that t heir intent, if ascertainable from the subject of the grairL and t he surroundmg circumstances, should control rather than th e legal i mplication. 1'he primary and natural meaning of the word is in- consistent with the effect given it in the law of this subject. To reserve i s to keep in reserve, to retain, to keep back, not to deliver or make over. Its meaning in law, as given by Webster's New International, is "to withhold from the operation of a grant or agreement." Unles s save d by the rule of construction above s t ated, this inconsistent tech- nical meaning of a word in common use and a forced implication therefrom will determine whether an easement, essential to the use and value of an estate, shall end with the life of tlie then owner or go with the estate in perpetuity. After Smith conveyed the Pratt farm his wood lot was entirely su r- r ounded by the '^'^x^<^'^'\ of other s. There is nothing to indicate that he had any personal interest in securing a' right of way distinct from his interest as owner of the lot. His interest as owner required that he secure a right of way available after his death . . The value of j he l ot to Smith as its then owner, irrespective of use, depended upon the perpetuity of the_ means of reaching it . In ordinary circumstances there is no ground for supposing that a grantor intends to limit a Ch. 3) TnE puorEUTY conveyed 463 right- of this nature to the uncertain period of his life, and thereby materially lessen the value of his land as property in the market or as an asset of his estate. The purpose of reserving^ a ri°;ht of way to th at p art of the property retained by the grantor is manifest to the grante e, even though there is no definite and visible way impressed upon th e ^ojj ; and the purpose is one that points directly to a n intentio n on the part of the grantor to reserve a right co-extensive in duration with ins estate in the land. The p urpose a nd nnder standinsf of the part ies i n creating an easement of this nature are so nearly universal, th at t hose using terms of reservation may properly be held to have intende d an easement in fee, when there are no circumstances or restrictiv e words indicating" a contrary intention . Judgment affirmed. ^_ IIAVERIIILL SAVINGS BANK v. GRIFFIN. (Supreme Judicial Court of Massacluisctts, 1903. 1S4 Mass. 419, G8 N. E. S39.) Bill in equity, filed August 17, 1901, t o restrain the defendant from u s'ing and maintainin. The report was in substance as follows : The defendant is the own- er of the land described as hers in the bill, b ounded on the north by the land of the plaintiff also described in the bill. Both parcels of land were owned on and before November, 1883, b y one Algern on /^^^ a-'^* "^ P. Nichols, who had died before the filing of the bil l. The land owned^^^^^^,^^ ^^-t^^-v-c byllie""defen3anr'wascoi^^ /a.,».-A-cx in common form dated November 4, 1885. The land owned by the V plaintiff was conveyed to one Warren Hoyt by Nichols, by a warran ty deed in common form dated July 12, 1886. I n this deed the p lain- ti ff's lai]d was described as bounded on the south by land of Carolin e Griffn about one hundred and seven feet more or less, and containe d th e following clause /" And reserving to the lot next southerly own ed by Griffin th e right to^ enter a drain into a private sewer now on sa id l^ild*!' )The plaintiff acquired its title through a mortg age given by I:ioyt-^:o the plaintiff and foreclosed by the plaintiff. The m ortgag e di ^ not c o ntain any words relating to the draj n. After the conveyance to the defendant, a drain was constructed by her from the lot owned by her into and through the Nichols land, afterwards conveyed to 464 DEKIVATIVE TITLES (Part 2 Hoyt. This drain connected with the sewer on Hoyt's land, and from the aucumn of 1885 was in continuous use draining the defendant's lot. The deed from Nichols to Hov t containing the clause above quoted was as follows, omitting the portion after the habendum clause which contained the ordinary covenants of a warranty deed : "Know all men by these presents that I, Algernon P. Nichols, of Haverhill in the County of Essex and Commonwealth of Massachu- setts, i n consideration of two thousand dollars paid by Warren Hoyt . of said Haverhill, the receipt whereof is hereby acknowledged, do her e- b y give., grant bargain sell and convey unto the said Warren yinyt a certain parcel of land in said Haverhill on the southerly side of Sixth street and bounded on the North by said St. one hundred and ten feet more or less, on the east by land of the Children's Aid Society, about one hundred feet more or less, on the south by land land of Caroline Griffin about one hundred and seven feet more or less, and on the West by Auburn street about one hundred feet. Saving and reservino- nev - ertheless to myself and my heirs and assi^gns forever for the use o f s aid Children's Aid Society a right to pass and repass upon and oven a strip of land four feet (4 it.) wide and seventy-five feet long , ex- tending_southerly from Sixth St. and next to land of said Societ y, so as to make a passage way for the exclusive benefit — the adjoining estates twelve feet wide including the eight feet in width which I re- ■ served for such use in my deed to said Society, and reserving to. t he l ot next .s jQ Utherlv owned by Griffin the right to enter a d rain into a private sewer now on said lanch To have and to hold the granted premises with all the privileg es a nd appurtenances the reto belonging t o the said Hoyt and his heirs and assigns to the ir own use and be- BralEy, J. At the time the defendant obtained title to her land the drain was not in existence and the deed under which she holds is silen t a s to an y r ight to lay and maintain such a drain through the land^ f t he plainHll ^ Neither does it appear that this alleged right whereby the defendant would be entitled to connect her premises with the public sewer, can be said to arise by implication. See in this connec- tion Bumstead v. Cook, 169 Mass. 410, 48 N. E. 767, 61 Am. St. Rep. 293. The case falls within the w ell recognized General rule that wher e a n_ easement is not set out in the instrument under, which the parl v claiming the privilege holds title, i t must be sho^^fn to be actually in pvi^pnrf f)pd f:r'""'"'tpd with the estate conveyed in order to pass^ as a ppurtenant by implication . Philbrick v. Ewing, 97 Mass. 133 ; Bass V. Edwards, 126 Mass. 445, 449. In order therefore to maintain her claim she is necessarily obliged to rely on the clause in the deed to the plaintiff's grantor which is in these words, "and reserving to the lot next southerly owned by Griffin the right to enter a drain into a private sewer now on said land," and Ch. 3) THE PROPERTY CONVEYED 465 the ri ghts of the parties must be determined on the construction to be g iven to this clause. At the date of this deed so far as the facts appear by the record no such right had been p ^ranted to or prescriptive! v acquired bv t he defendant, and wliich mig^ht be prpservpd for her use by the languag e t ^sed , on the ground that thereby an exception was created and hence the easement claimed was excepted from the grant. But ^they mu st b p^ ron.'^triipd as an attempt to vest in the grantor a new interest o r r ight that did not before exist and therefore constitute a reservatio n r ather than an excep tion. Wood v. Boyd, 145 Mass. 176, 13 Tvl. E. 476; White v. New~Yo?k & New England Railroad, 156 Mass. 181, 30 N. E. 612. As the defendant was not a party but a stranger to the deed she c ould g ain no rights under the reservation which enured solelv to t he grantor, and for this reason s he did not acquire an easement under it. IVlurphy V. Lee, 144 Mass. 371, 3^4,11 N. E. 550. It follows that the decree entered in the Superior Court was right and should be affirmed. D ecree affirmed.^ _:\ 24 Cf. Lipsky v. Heller, 199 Mass. 310, 85 N. E. 453 (190S) ; Martin v. Cook, 102 Mich. 267. 60 N. W. 679 (1894) ; Corning v. Troy Iron & Nail Factory, 40 N. Y. 191 (1869) ; Bartlett v. Barrow^s, 22 E. I. 642, 49 Atl. 31 (1901) ; Wall v. Wall, 126 N. C. 405, 35 S. E. 811 (1900). Aig.Pbop.— 30 ^ / o^-r 4CG DEEiVATivB TITLES (Part 2 CHAPTER IV CREATION OF EASEMENTS BY IMPLICATION » COPPY V. I. DE B. (1406. Y. B. 11 Hen, VII, 25, pi. G.) William Coppy brought an action on the case ag ainst J. de B., and counted that according to the custom of London, w h.ere there were t wo tenements adjoining, and one had a gutter running over the ten e- nient of the other, the other cannot stop it, though it be on his own 1 The or(1i pn|-Y w'nY fif fr^'vt'rT p-^ ements and [jrofits of ronrse is Irv grn nt. sealed iiistrmueiit. Tiie prul »- \ yhicll. accordin g'- f "^'"^ f^nininun hiw, mt^Miif liu !i gM leuis tif diHkulty tliat arise in connection wirli such express grants are in i;en- eral the same prulileais that arise in conveyances hy deed y;enerall\'. and are sntticieiitly treated inider otlier lieads. IIq wpvpi- '" H't^ martcr of tiie suttlcie ncy o f tlie words in the ?;rant to serve to create de novo un easementThere ariae u e- c nsio!i;inv (pit'ijtions of snecial dirnciiLJ v. ••W'itli tlie appurtenances'' does not serve to create an easement de novo, even where the easement claimed had a de facto existenc-e prior to the convey- ance. Wliailey v. Thompson. 1 Hos. & P. 371 (IT'-IO); Gayetty v. Hetlnme. il ]\Fass. 4!>. 7 Am. Dec. ISS (1.SJ7); I'arsons v. .Johnson. PS X. Y. K\2.. 2:'> Am. Uep. 141) (1S77). Compare James v. riant, 4 A. & V.. 1V,\ (lN:!(i). " Tliere are, li nw- ev^ M-. ani .- mnrds for tlie nurnose t>f i)assinj suc h an ea.sement ; and, if you w ill oiTTy insertJ Ji i^ words 'or thereNvTrii ll^ed and Ull.loye d. the riyht would pass." HiiyTeiv. I'... in i^arlow v. Kliodes. 1 (J. & M. 4:!9, 448 (18:'.:{T TTus was said with refe rence to a (y i^isj <'=^^^j)|'^iit- w jijch once had been a real easement but which h ad hecii extiug^uished as ii UL ti by unity of ownership of domiuaut: and servi^ ut t enenu'iits. "Whcu the owner of a piece of land has a risht of way over adjacent land, so that lie may maintain at any time an action for an olstruction. if afterwards by inheritanforth being the mere exercise of a riuiht of property on his own land. B ut if. at a later |)eriod. th e M^rtir^i aifinii t'nll into the ownership and pos.scssion of different person.s^ 'icTTii the conyeyajiC£_aL-the land to whicli tlie wav was formerly att:;uheJ. t he words are toum] •tog.^t her^ wini all ^\i' | VS| eft;-, ust^nJ or enioyed therewijj i.' t he effect of the se \voros i>< ro revive tlie right! tliat formerly existed, and whicii h as been not extint-Miished. bnt only suspended . But since it does not api)ear here that at any antecedent time there existed a right over one of these pieces of land, attached to the other piece of land, the e ffect of tb^^sp w mw]..^ (-jii^imf- make or revive a right of wav tliat never before existe d." Kelly, C. K., in Langlev v. Hammond, L. R. 3 Ex. 161, IfiS (1868). Until the cases of Watts y. Kelson, I.. R. 6 Ch. App. 166 (1S70), and Kay v. Oxley, L. R. 10 Q. B. 360 (187.5). it -seems to have been considered t hat general words of the sort re ferred t o would operate to create an easement only where riiere had once been a tru e easement wiiicli. though extin guished in law by uiuty of ownei-ship, had beea cT Tntinue (Tii s a de' tact(7eT>^ehi^ht in connection with the use of the (piasi doi u- li iant teiTenreiit up to the time of its coiivevance. (Joddard, Easements (Ben- nett's I'^d.) lU.'i. In Kay y. Oxley. Blackburn, J., after reviewing some of the earlier cases limiting the doctrine as above stated, states what would seem to be the proper view: "It cannot make any difference in law, whetiier the right pt way was only de facto used and enjoyed, or whether it was originally created befoi-e the unity of possession, and then ceased to exist as a matter of right, Ch, 4) CREATION OF EASEMENTS BY IMPLICATION 407 land ; and counted how he had a tenement and the defendant another tenement adjoining. Rede [for the defendant] : " We say that since the time of memor y one A. was seised of both tenements, and enfeoffed t he ^ilaint jtif of the o ne and defendant of tiie othe r." Wood [tor'ilie plaintiff] : "This is not a good plea, f or the defen d- a nt seeks to defeat the custom by reason of an unity of possession since t he time of memory ; and that he cannot do in this case, for such a custom, that one shall have a gutter running in another man's land is a c ustom solemnly binding the land , and this is not extinct by unity oi UjLMf^ possess ion^: as if the lord purchase lands held in gavelkind, [still] both sons of the lord shall inherit, just the same as if the land had remained in the possession of the tenant, because [the custom of J gavelkind is solemnly binding on the land." TowxsiiEND. "Jf a man purchase land of which he has the rent, the rent is gone by the unity of possession, because a man cannot have a rent from himself; b ut if a man has a tenement from which a gutte r r uns into the tenement of another, although he purchase the other ten e- ment, the gutter remains, and [s as necessary as it was before ." Kede: "He who was the owner of the two tenements might have de- stroyed the gutter; and that if he had done so, and then made several feoffments of the two tenements, the gutter could not have revived." Davero: "Jf that were so, you might have pleaded such destruction specially, and it would have raised a good issue." Towxshexd: "Amend your plea, for we will not argue with ycu any longer/' Whereupon Rede pleaded new matter. ROBBIXS V. BARXESr (Court of Coraruon rieas, IGlCr' Ilobart lobart, 1.11.) ^ Rohhins brought a q uod permit tat against Barnes, prosternere quan- dam domum, &c., and counts, t hat he was seised of an ancient hous e Z and yard ; and whereas in the east part of the said house there is, and » J^U time out of mind hath been, a window of such length and brea dth ; the t^jkM^^^\ defen^gj jt hath erected a certain house ot such length and breadth ^^^'y ' u pon his own freehold so near the said east part of the said hous e, tl iat it overhangs the same and stoppeth his ligh t, &c The defendant * pleads, that one Richard Allen was seised of tlie plaintift''s house and so that i n the one case it would be created as a right de novo, i n the ot her D ie rely revived , mit it uinKes a jireat uirrei-eiK-e. as iiiarter ot evidence on the question, wliether the way was used and enjoyed as appurtenant." I t \v;is tiie re h eld tluit the ri^bt to use a way wliich had had no existence ]u-ior to any unitv of'oWnersbi]!. hut which tlie grantee of tlie quasi dominant tenement, as lessi ;e t hercdr. Had heen using in connection with his occupiincy. [mssed as an ease - uieut under general words of the character under consideration ;. y#r 468 DERIVATIVE TITLES (Part 2 yard, and was also seised of a certain house, standing in the place where the said house of the defendant now standeth, which did over- hang the house of the now plaintiff, in tarn amplis modo and forma, as the said now house of the said defendant doth. A nd he. saith. that h e pulled down that house, because it was ruinous, and built this hou se i n the place of it._ The plaintiff maintains his count and traverseth, that the old house superpendebat, &:c., in tarn amplis modo & forma prout, &c. And the j ury found for the plaint iff. And now it was said in arrest of judgment, that this was an unperfect issue; f or there oug ht no more of the new house to be prostrated, than did indeed overhan g more than the former house did , which was granted by the Court, if i t had been wisely pleaded . For it was agreed by the Court, that though one of these houses had been built overhanging the otlier wrongfully before they came both into one hand ; y et after when the v c ame both into the hand of Allen, that wrong now was purged : so tha t i f the houses came afterwards into several handsr yet neither par tv c ould com plain nf a ^yrnn g before : SO that in this case it was plain, tliat the plaintiff could have no cause of acti on, but for the i ncrea se of the overhangmg. Yet because he had not expressed and distinctly limited that in his plea, but took issue generally as before, which was ^^^ found against him, the Court must now give judgment according to the complaint as true, because they can take no other knowledge; f or th e j ury hath not found that the former house overhanged so much, a n d n ot the rest; yet out of their discretion thev gave the plaintiff judgme nt f or tlie whole , and execution for damages and costs presently ; but staid execution, as to the abating of the house till it might be viewed what was overhanging de novo; because the Court was informed, that in truth it was but a small matter. If I have an ancient house and lights, and I purchase the next house or ground, where yet no nuisance is done to my former house ; now it is clear, that my privilege, against that I have purchased, ceaseth ; for I may use mine own as I will. Now then suppose I would lease my former house, I may build upon the latter, or if I lease my latter, he may build against me, as it may seem. But note, there is a great difference between interests and profits, as y^ rents, commons, &c., and bare easements, such as are lights, air, gut- yfw^ ters, stillicidia and the like; for t hough while thev are in one hanj l f\/^ a/ t hey may be stopped, or foredone. because a man cannot be said t n ""^ wrong himself , y et if they be divided. t;hinjy«; gi that nature (still j n being) do revive, because they are of no less use of themselves in- jQne ha nd tb aa-kudiyefs, being equally (rebus stantibus in •the same use and occupation) necessary for the several houses to which they belong, ^t clearly, if even such th ings be foredone or altered, while they are m one hand^and s^ being the Houses be again divided, tliey cann ot be restoreTByTaw, but must be taken as they were at the time of the con- veyance. Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 469 PALMER V. FLETCHER. (Court of King's Bench, 1663. 1 Lev. 122.) Ca s,e was brought for stopping of his lights . The case was, a man erected a hou se on his owia jands, and after sells the ho use to one, and thelands adjoining to another, who by putting piles of timber on the land, obstru cted the lights of the house; and it was resolved, that al- though it be a new messuage, yet n o person who claims the land by^ . » p urchase under th e builder, can obstruct the lights any more than the ~ ixV-C-*'^**'^ b uilder himself c ould, who cannot derogate from his own grant, by TwYSDEN and Wyndham, Justices, Hyde being absent, and ivEL- YNGE doubting. For the lights are a necessary and essential part of t he house. And Kelynge said. Suppose the land had been sold first, and the house after, the vendee of the land might stop tlie lights ; Twysdex to the contrary said, Whether 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 assignees ; and cited a case to be so adjudged ; bjit_all a greed, that a stranger having lands adjoining to a messuage new ly erected, may stop the lights, for the building of any man on his land s, cannot liinder his neighbour from doing what he will with his ow n lands ; other wise if the messuage be ancient, so that he has g ained a rig ht in the lights by prescription. And afterwards in Mich. 16 Car. II, B. R. a like judgment was given between the same parties, for erecting a building on another part of the lands purchased, whereby the lights of another new messuage were obstructed. PINNINGTON V. GALLAND. (Court of Exchequer, 1853. 9 Exch. 1.) This was a n action on the case for the disturbance of a right of way , which came on to be tried before Coleridge, J., at Nottingham Sum- mer Assizes, 1852, when a verdict was found for the plaintiff, dam- ages 40s., subject to the following special case : ^ * * * Martin, B. This is a special case, which was argued before us during the last Term ; and t he question is, whether the plaintiff, as o c- /'"^Yi c upier of two closes called the Rye Holme rlo^^es^ i q entitle d to a ri^ ht/ ^ ) of wa y over cer tain lands of the defendant. V *^-^ The material circumstances are these: In the year 1839 a property consisting of fi ve close s belonge d to a Mr. Dickinson. Two of them were the Rye Holme closes, and they wer e^ separated by two ^ fjthe others fr om the only available highway, the Town-street of Suttp n- upon-Trent. From the year 1823 the road over which the plaintiff /lA^J^f *^ dJTk 2 A portion of the statement of facts is omitted. C^^J^ jwJ^^ ^ and ov 470 DERIVATIVE TITLES (Part 2 now claims the right of way was t hat which was used bv Mr. Dick in- s on's tenant for the occupation of the Rve Holme close s. From a p lan, which forms part of the case, the road apj^ears to be t he shor t- e st and most direct access from the highway to the closes ; and it having been used for so many years by the tenant who occupied the entire property, we tliink we may safely conclude that i t wa's. and is, t he most convenient road. In 1839 the property was sold by IMr. Dickinson in three lots. A I\ Ir_. Moss purchased the Rve Holme closes, a Mr. Newboult purchased one of the other closes, and a Mr. Dearie purchased t he remai nder of the property, which includes that now belonging to the defendan t, a nd over which the way in question goe s. The deeds of conveyance to the three purchasers, although bearing different dates, were all ex - Jl- ec uted on the same day, the 8th of April. 1840. and it cannot now b e » . ^ ^^ ascertained in what order of priority they were execute d. No speci al -^jXA*^^--* .'^g rant or reservation of any particular way is contained in any of them ; 1^"^ ^^f^iii^ but in the conveyance to Mr. Moss, whose tenant the plaintiff is, there ^ /l**^ is comprised the usual words, "t o g ;ether with (inter alia) all way s, Q { y)ads, paths, passages, rights, easements, advantages, and appurtenan c- qI/^^^*''^^ i es whatsoever to the said closes belonging or in any way app ertain- I ^ i ing7 ' Mr. Dearie executed the deed of conveyance to him. For several years after the execution of the conveyances the occupier of the Rye Holme closes co ndnued tn w^^ \\\e road in question ; b ut i n 1843 the deifudant. who had purchased fron L iMr Dearie part o f t lie land conveyed tlnus by Mr. Dickinson^ ^nd nver whirh the wn.y i n question goes, disputed the plaintiff's right to use it._ Attempts were made for arrangement, whTcH^taiTed, and we are now required /} to decide the point ; and v ve are of opinion that the plaintiff, as_g c- IL-'^^'^ c upier of the Rye Holme closes, is entitled to the right of way claimed . ' •/ -A^^^ -^t *^ impossible to ascertain the priority of the execution of the two ^UtI conveyajices (that to the third purchaser may be put out of considera- I + tion), and the plaintiff having to establish his right, is bound to show J^- that, whichever was tlie first executed, he nevertheless is entitled to I the right of way. Fjrst, assume that the conveyance to Mr. Moss was execute d be- f orethatjo Mr. Dearie. I n this case there would clearly be the right of way. It is the very case put by Mr. Serjt. Williams in his note to Pom fret v, Ricroft, 1 Wms. Saund. Z2l, viz., "wh ere a man, ha v- ing a close surrounded with his land, gra nts the close to another in fe g, tor iite, "or for years, the grantee shall have a wa y over thp gran- te e's land, as mcident to thegrant, fo r without it h e ca nnot have -^ny benefi t from the grant ," and "the way would be the most direct and convenient, which we think we may properly assume the one in ques- tion in the present case to be. This is founded upon the legal maxim, "Ouando aliquis aliquid concedit, concedere videtur et id sine quo res concessa uti non potest," which, though it be clearly bad Latin, is, we think, good law. P^ fa JJ/VOU^ Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 471 Secondly, as sume that the conveyance to Mr. Dearie was execu ted t he 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 diflkulty in holding the right of way to exist in this case than in the other ; but, a ccording to the same very great au - t hority, the law is the same, for the note proceeds thus : "So it i s w hen he grants the land and reserves the close to himself ;" aiTcThe cites several authorities which luliy bear him out: Clarke v. Cogge, Cro. Jac. 170; Staple v. Heydon, 6 Mod. 1 ; Chichester v. Lethbridge, VVilles, 72, note. It no doubt seems extraordinary that a man sho uld h ave 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. 148, that it was for the public good, as otherwise the close surrounded would not be capable of cultivation. A ccording to this law, therefore, the right of way woul d a^'''nie to Mr. Dickinson upon the execution of the conveyance to ^Ir. ^^pal• le■ a nd it would clearly pass to Mr. Moss under his conveyance, for }p would be a way appurtenant to the Rye Holme rinses, and would pa ss u nder the woras^aiTways to the closes belonging or appertainin g. ' ' 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 rea- son, we think that h e is entitled to the judgment of the Cour t. There is a statement in the case respecting another road described in the plan as from C to D, which tlie 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 Catlifife 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 i n t he present case, has no right to t he useof it ; and, except by one nr ntlipf nf ihf roads, tlie case states that the plaintiff could not ge t t o the Rye Holme closes without being a trespasser upon land otlie r t han ^ I r. Dickinson s, ~ Judgment fo r tlie pla intiff.* 3 See D.ivies v. Sear, L. R. 7 Eq. 427 (ISfinK where at the time of convey- ance it was not necessary to use the {iranted land as means of acci'ss to re- tained land, Imt it wns apparent from circuinstauces and a I iiildiii<; i»laii. know n t? tllP y^'^'^'tpp, that certain buildiug ouerations. wlieu com ^ neteu. woaia cut otf all yttier nmnn.s of access. 472 DERIVATIVE TITLES (Part 2 PYER V. CARTER. (Court of Exchequer, 1857. 1 Hurl. & N. 910.) The declaration stated, that b efore and at the time of commi tting t he grievances, &c., the jTJaintiff was lawfully poss esse d of a messu age a nd premises with th e appurtenances , situate in St. Anne Street, Liver- pool, and by reason thereof was en titled to a drain or sewer, and. pas- sage for water, leading from the said messuage and premises, i n, 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 s till of ri ght o^^r^t to flow, a way from the plaintiff's said messuage and premises : Yet the r|pfpnr );^nt wrongfully stopped up the said drain and se wer, whereby divers larg e quantities of rain and water which of right ought to have flowed, a nd otherwise would have flowed, through the sa me drain, sewer, and pa s- s age for water, were prevented from flowing .from the plaintiff's sai d messuage and premises^ and flooded, soaked into, and injured_ Uie s^ame^^x^ Pleas. First, riotJ[iii|ty. Secondly, that the plaintiff was noj^^mti;;, tled_to_thg^said^ai n, sew er, and passage for water; nor did the rain and water from the plamtiff'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 al- leged. Issues thereon. At the trial, before Bramwell, B., at the last Lancashire Summer As- sizes, it ap peared that the plaintiff and defendant were owners of ad- j oining houses situated in St. Anne Street, Liverpool . These hollse s ,h ad been formerly que house, and had belonged to a person of the jname of Williams, who converted them into two houses. In Ju ly, 1 853, Williams conveyed the defendant's house to him i n fee. Thi s c onveyance c ontained r^ reservation of any easement. In September, 1853, Williams conveyed the plaintiff's house to him in fee. At the time of these conveyances a jlrain or sewer ran under the plain tiff's ll^u se and thence under the defe ndant's house and discharged itsel f into th e common sewer in St. Anne btre et" Water from tlie eaves of the deiendant'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. T he defendant blocked up the drain whe re it entered his house, and in consequence, whenever it rained, the pla in- t iff's house was flooded . The defendant stated that he was not aware of the drain at the time of the conveyance to him. It was proved th at the plaintiff might c onstruct a _ drain directly from his own house into the common sewer at a c ost of a bout £6 . 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 T^*^- Ch.4) CREATION OF EASEMENTS BY IMPLICATION 473 learned Judge directed a ve rdict for the plainti ff, reserving leave to the defendant to move to enter a verdict for him. Watson, B. This was an action for stopping a drain that ran un- der both the plaintiff's and defendant's houses, taking the water from both. The cause was tried at Liverpool, before Baron Bramwell, 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 a djoined each other. They had for merly been one hous e, and were co nverted 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_th e time of the respective conveyance s th ^ drain ran under the pl amti ff's house and then under the defen d- ant's house, and_dis charged itself into th e common sewe r. Water from the eaves ofthe 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 b v the expenditure of £6., the plaintiff might stop the drain and drain directly from his own land into the common sewer. I t was not proved that the defendant. _a t t he time of his purchase, knew of the position of the drain s. Under these circumstances we are of opinion, upon reason and upon authority, t hat the plaintiff is entitled to our judgment. We think that the owners of the plaintiff's house are, by implied gran t, entitled to have the use of this drain for the purpose of conveying the water from his house, as it was used at the time of the defendant's purchase. It seems in accord ance with reason, that where the owner of two or more adjoining houses sells and conveys one of the houses to a pur - chaser, tnat such house in his hands should be entitled to the benefi t oi all the drains from his house, and subject to all the drains then necessarily used for the enjoyment of the adjoining house, and tha t ^iSteHL-^tiK^^^"'£^^^^MiQA-.-^-§> '^^"n' ^"^smuch as he purchases th e housesuchasit is. ifthatwere not so! the inconveniences and nui- sances in towns would be very great. Where the owner of several ad- joining houses conveyed them separately, it would enable the vendee of any one house to stop up the system of drainage made for the bene- fit 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, " ij^one erects a house and builds a con - duit thereto in another part of his land, a nd conveys water by pipes to his house, and afterwards sells the house with the appurtenances, ex- cepting the land, or sells the land to another, reserving to himself the house, the conduit and pipes pass with the house, be cause it is ne ces- sa ry and q u asi appendant thereto^ and he shall have liberty by law to dig in the land for am e nding th e pipes or making them new a s the case requires^ {So ii a lessee for years of a house and land erect a con- k 474 DERIVATIVE TITLES (Part li duit upon the land, and after the term the lessor occupies them togeth- er for a time, and afterwards sells the house with the appurtenances, to one, and the land to another, the vendee shall have the conduit and the pipes, and liberty to amend them." Shury v. Pigott, Popham, 166, s. c. 3 liulst. 339, and the case of Coppy v. I. de B., 11 Hen. VII, 25, pi. 6, support this view of the case, that where a gutter exists at th e t ime of the unity of seisin of adjoinincr houses it remains when I Jiey a re aliened by separate conveyances, as an easement of nejz^ss ity. 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 £6. We think that the a mount to be expended in the alteration of the drainage, or in the c on- s tructing a new system of drainage, is not to be taken into consider a- •^ t jon, for the meaning of the word "necessity" in the cases above cite d -• and in Pinnington v. Galland, 9 Exch. 1, is to be understood t he neces - s ity at the time of the conveyance , and as matters then stood with out 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 himl 5ut it is cl ear that he must have known or ougT mo have known that s ome drainage then existed, an d if he had incjuired he would 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 observa- tion of Mr. Gale (Gale on Easements, p. bZ, 2d Ed.) th at by "appar ent si gns" must be understood not only those which must necessarily b e seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subjec t. We think that it was the defendant's own fault that he did not as- certain 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. POLDEN V. BASTARD. (Court of Queen's Bench, 1SG3. 4 Best & S. 238.) The declaration stated th at the defend ant br oke and entered th e c lose of the plain tiff, sit uate at &c., and tnere broke_Q pen a do or nnd cut dowri a nd desFroye d a w^ooden fence, and too k and carried away lar ge quantities of water belongmg t o the plaintiff. Pirst plea, except as to cutting down and destroying the wooden fence, th at before the committing of the acts complained of, and befo re the plaintiff had any estate or interest of or in the close in which &c.. Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 475 R achel Polden Bonnel was seised in fee, as well of and in the close i n w hich &c., and of a pump and well therein, as of and in a certain dwell- ing house, outhouse and garden, and, being so seised, duly made and published her last will and testament Sec. ; and by the said will devised t o Clementina Polden, and her heirs and assigns for ever, the hous e, o uthouse and garden, together with a way on foot from the house, out - house and land unto, into, through, and over the close of the plainti,f f t o the pump and well, for the purpose of the said Clementina Po l- d en. her heirs and assigns, having, taking and fetching-^ 7\x\i\ fnr he r and them to have, take, and fetch, water from the pump and well , and so back agam frcm the pump and well in, through, over and along the close of the plaintiff unto and into the house, outhouse and garden of Rachel Polden Bonnel, at all times of the year &c. ; and RacliS l Polden Bonnel being so seised afterwards died without revoking h er will ; and thereupon Clementina Polden became seised in fee of the house, outhouse and garden, with th e appurtenance s, tog ether \\\\\\ the ri ght and easem ent b y the will given and devised to her ; and Clem- entina I'olden, being so seised, by deed, du ly bargai ned , sold, gr anted y^^^^ Jo-OO-- an d assigned to the defendant the house, ou thouse and garden, w ith >q ^ uril the aio pm]tenances^ together with the right antTeasement, and she ceased \J''''^'^'^*^> to have any estate or interest therein, and the defendant became and -Y ^^g ^ Aa sv^ ^ J. was seised in fee of and in the house, outhouse and garden, with the appurtenances, and the right and easement, a nd at the times of th e c ojnmitting the acts complained of co nt inued so seised, and one Jam es Dennis was in occupation thereot, a s tenant thereof , together wnth the right and easement to the defendant, the reversion of the same be - lo nging to the defendan t; and the trespasses complained of, to which t his plea is pleaded, were a use and exercise by the defendant of the Ljx-»*yC^ >iA>t w ay^right, a n d easement, the said water being water in the pump and . ^ /% ,^ well. The plea proceeded to justify the breaking of the door in the'*'^ *^'*^' use and exercise of the right and easement of having, taking, and CjJL *^ I^C.A-< fetching water from the pump and well, and for the protection of the defendant's reversionary right. The re were other pleas iustify inp- nn thp p-m unds respective1y_ pf ajrescnptive rig h t of way, of a right of way for twenty years, a n d of a rigliT of way tor ^orty years, on foot through the close of the plaintiri:'~to the pu mp and well, for the purpose of having, tnkinfy an d 1 etching ^vateF theref romT Also pleas justifying the trespass to the fence, because it obstructed the defendant's right to light and air. Issues were joinedon all the pleas. On the trial, before Williams, J., at the Dorsetshire Summer Assizes in 1862, it appeared that, on the 26th May, 1834, Rachel Polden Bon- nel, being the owner in fee of three cottages, made her will, by which she devised as follows: " I give to my. nephew R. B. Polden. all that III /} my freehold cottage and garden at Charlton Marshall, now occupied by j'^M. ^ct/W<^ W. Wills, to him and his heirs and assigns for ever. To my nephew I W. Polden" (the plamtiff) "I give the house I now live in, with the out- | 476 DERIVATIVE TITLES (Part 2 house and garden and orchard, in my own occupation, to him and his heirs and assigns forever. Also the sum of ilO. I give to mv ni ece Cl ementina Polden the house and outhouse and g-arden as now in the o ccupation o f T homas Answood,. junior, to her and her heirs and as - sig ns for~ever .^ The house in the occupation of the devisor had a pump belonging to it, which stood under a shed at the back of an out- house belonging to the house occupied by Answood ; there was no fe nce between his house and the land on which the shed stood ;_ he oc- cj ^ied thatli ouse for two years as tenant from vear to year of th e d evisor by apa_rol letting , and was accustomed with her knowledge to go to the pump and draw water from it for his use ; there was no other pump or well on his premises, but there was a river within 15 y ards and a road to it . The d evisor died in 1848 . and in Septeml oer. 1 849, Clementina Polden^ who survived her, conveyed the cottage d e- visedJtoJjgi^ojthe^jdeffiniiaiiXit^^ The jury found a verdict for the defendant on the pleas as to the rig[ht_Jfl..Iight andair^_and the learned Judge dir ected a verdict to b e en tered fo rth e defendant on t he pleas as to the enjoyment of th e , pump and~well, reserving leave to move to enter a verdict for th e pl aintiff for 40s on those pleas . n A In the following Michaelmas Term, Collier obt ained a rul e accord- jj^ V-*"^^ ( i ngly. on the ground that the right to the use ot the pump did no t g-'^XJt, I p ass under the will of Ra chel Po lden Bonnel to Clementina Polde n 'V^f^^'*^ ( u nder whom the defendant claimed . V^WiGHTMAN, J. I am of opinion that this rule should be made ab- solute. Mj\Kingdon has been unable to furnish us with any c ase w hich goes to the extent ot saying that sucn words as are used in^ his devise create an easement . Pyer v. Carter, 1 PI. & N. 916, is open to the distinction that the easement there was continuous. If the will had contained words shewing that the cottage was intended to be de- vised "as usually enjoyed before," it might have been contended that the right to use the pump, which had been enjoyed by the tenant of the cottage for two years, would pass, though not properly an ease- ment. But there are no such words ; th e devise is simply of ^ the house and outh o use a nd garden as now in the occupation of Thoma s Answbo(|/^ T he circumstances ot the present case stiew that t he pump was not used byliim in the^xercise of a right to u se it as an easement. Crompton, J. I also think tliat my brother Williams was right in holding that an easement was r^ot ^created by the terms of this de - vise. The distinction between easements which are in their nature continuous and apparent, such as drains, &c., and other easements, such as ordinary rights of way, and that in question here, is well point- ^ji^itA/f ed out in Gale on Easements (3d Ed., by Willes) pp. 76, 77 ; t he form er ^^^ tjL/J^ *' I ^ass with the devise or conveyance of a house as appurtenant there to, jt>4 "^^ a nd will pass without general jw ords : but that does not apply to -TJi^ , things not continuous in their nature, — in order to pass them there must be the creation de novo of a new easement. I adhere to what Ch.4) CREATION OF EASEMENTS. BY IMPLICATION 477 I am reported to have said in Worthington v. Gimson, 29 L. J. O. B. 116, 120, 6 Jur. N. S. 1053, 1054, which was approved by this Court in, Pearson v. Spencer, 1 B. & S. 571, 583. This is not a continuo us e asement, nor an easement belonging to the cotta^j^e but a mere en - j Q^men^ fnr twn years bv the tenant of the privilege of using th e Pjinip. If this had been an old easement attached to the cottage it would pass by the words "appertaining or belonging;" but to crea te a new easement which did not exist before the will must have devised t he cottage "with the pump therewith enjoyed. " It is said that the . words "as now in the occupation of Thomas Answood" are equivalent to that ; but I am of o ^pitn on tha t t hey are not. Blackburn, J. I am of the same opinion. S o long as the defen d- a nt's cottage and the plaintiff'.g; p^arden with the pump in it belong ed t o the devisor, who was seised in fee, there could be no easement. • When the two cottages were severed, whether by will or grant of the owner, an ea sement might exist, but. there must be wo rH;^ in the will |V0 X^^"^'^'^ or grant to create it. If this had been a continuous easement, as a flow ^/it^^iJi, Ju-U of water to the cottage, or a drain carrying water from it, the prin- ' ^ ciple which has been called the principle of disposition of the owner -^^^-'^''^^ !-•*«%« of two tenements would apply. But this right of wav to go to and Vxrw \y4' JSUU r eturn fromj a p ump is no su ch continuous easement as wDuld pass u j p on ij-. u. m^^"^ t hat principle ; and therefore it is necessary to shew words sufficient , ^ to express an i ntention b y the devisor to create this easement de novo, /*'<^'^*-^|'''M > and annex it to the cottage devised. There are no such words : there JtyjbiAj&^ Aj^ oi ^ly is a devise of the cottage itself , "as now in the occupation of . „.«. >fc^ Thomas Answood;" and he had enjoyed merely a license to go to the pump. ^ ^fM^^i^c^^^^^t^J^-^ '^*-«^ Rule absolute.* 4 I n Pearson v. Spencer, 3 B. & S. 761 (1863) an owner of a farm rliviflprl jf: by tjifs wfl] ipto "two portions , aevising them to A. and Jj. respectively. ^The por tion of B. was landlocked . The devisor, during his li'^e h nc , ! used ^ wav in a certain aireetion over tne property devised to A. in order to reach tlie por-. tlon devised to B. It w as claimed hy B. that he acQuired ,; ;v Irnnlicnt ion an ease- ment of a way over the land of A. in the devisor's accustomed line of travel. TRie court held that, such an ea.sement had heen acquired, no t as a wav of nece s- s ity. :^p^ this was a particular way, but o n the basis of the general impli£ation. Ei-le, C. J., said: "It falls under that class of implied grants'~where there is no necessity for the right claimed, but wh ere the tenement is so construct ed a s that parts of it involve a necessary dependence, in order to its enjoyme nt in the state it is ' in when devised, upon the adjoining tenemen t. There are rights VFhiclT are' implied, and we think that the farm devised to the party under whom the defendant claims c ould not be enjo^red without dependenc e on the plaintiff's l and of a righ t of way over it In t he customa ry manfler." "Hi P'Om V.-MyLl-op(jhraU'TraTrt\'ay (Jompanles, ii i^/u-A them T think that two propositions may be stated as what I may call the g eneral rules g overnino; cases of this kind. The first of these rules is, that on t he grant by the owner of a tenement of pa rt of th at tenement as it is then used and enjoyed, there will pass to "t lie grantee all those continuous and an narent |^^yUJ P"'ts C bv which, of course, I mean quasi easements), or, in other words, all those easc ; ments which are nec essary to the reasonab lp- pninY'''"i^'''<^ <^^ tli£--p4^-i- e rty granted, and which h ave be en and are at the time of the grant u sed by the owners of the entirety for the benefit of the part grante d . The second proposition is that, i f the grantor intends to reserve an y' ri ght over the tenement granted, it is his duty to reserve it ex]:)ress lv i n 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 attac hes to cases of what are called \\ ^^ia^^^fjece^it^ and I do not dispute for a moment that there may be, and probably are, certain other ex- ceptions, to which 1 shall refer before I close my observations upon this case. Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant ^ to reason and common sense, viz.. [t hat a grantor shall not derog ate V-*--*-*— »— f rom his grant. '. It has been argued before us that there is no dis- tinction between what has been called an implied grant and what is attempted to be established under the name of an implied reser- vation ; and t hat such a distinction between the implied grant an d the i mplied reservation is a mere modern invention , and one wliich runs confrary, not only to the general practice upon which land has been bought and sold for a considerable time, but also to authorities which are said to be clear and distinct upon the matter. So far, however, from that distinction being one which was laid down for the first time by and wbich is to be attributed to Lord Westbury in Suffield v. Brown, 4 D. J. & S. 185, i t appears to me that it has existed almost as J jLr back as we ca n t race the law upon the subjec t; and I think it right, as the case is one of considerable importance, not merely as regards the parties, but as regards vendors and purchasers of land generally, that I should go with some little particularity into what I may term the leading cases upon the subject. The first case to which I refer is Palmer v. Fletcher, 1 Lev. 122, where the first proposition which I have stated as a general rule was laid down or decided. * The other proposition was mooted, but there was a difference of opinion amongst the members of the Court upon it, and it was not decided. [His Lordship then read the report.] It appears therefore that upon_the^j3roposition t hat if a man wishes. to 1 /4^2Z d erogate from his grant or to reserve any right to himself he shoul d state so in the grant itself, t here was a differ ence of opinion in the Court, and th at po int was not decided. The next case of importance is Nicholas v. Chamberlain, Cro. Jac. ^e^ 480 DERIVATIVE TITLES (Part 2 121." [His IvOrdship then read the report, calling attention to the words "necessary et quasi appendant thereto."] Now if that determi- nation is held to mean that in all cases this doctrine of implied reser- vation stands upon exactly the same footing as the doctrine of implied grant, I think it will be found that over and over again that has been overruled. But it is clear, as I have already suggested, that to th e se cond rule under which a man is prevented from derogating f rom h is grant there are certain exception sT one of those being in reg ard t o easem en ts which have been called of necessity; and if Nicholas v. Chamberlain only decides that point it appears to me to be quite right. That Nicholas v. Chamberlain was not meant to decide more than what I have suggested is, I think, shewn by the next case, Tenant v. Goldwin, 2 Ld. Raym. 1089, 1093. There Lord Holt, in delivering the judgment of tlie Court, deals. with that very point which had been mooted in Palmer v. Fletcher, 1 Lev. 122. ; and he says, "As to the case of Palmer v. Fletcher, i f. indeed, the builder of the house sells th e house with the lights and appurtenances, he cannot build u pon th e r emamder of the ground so near as to stop the lights of the hous e; and as he c annot do it, so neither can his vende e. But if he had sold the vacant piece of ground, and kept the house without reserving the benefit of the lights, the vendee might build against his house. But in the other case, where he sells the house, the vacant piece of ground is by that grant charged with the lights." I think it will be found that, putting aside the case of Pyer v. Carter, 1 H. & N. 916, there has been no distinct decision which in any way affects the principle laid down in those clear and distinct terms by Lord Holt. The next case to which I will refer is Swansborough v. Coventry, 9 Bing. 305, which has been cited on both branches of the argument addressed to us by Sir Henry Jackson. That was a case of a sale by auction of different lots to different persons at the same time, and it was argued (and I particularly direct attention to this) that such a case must stand upon exactly the same footing as if the land in respect of which the easement was claimed had been conveyed first ; consequently the case would be one in which a grant of the easement would be im- plied. Now observe what that admits, and the argument so dealt with upon that footing. It ad mits that priority in time of the conv eyance was a material point for consideration, be cause, if it had not been ad- mitted, then the Court might have gone to the general question, not whether the conveyances were at the same time, not whether one preceded the other by a few minutes, or a few days, or by a few years, 8 The case is reported in Cro. Jac. 121 (1606), as follows : "Trespass. It was held by the court upon demurrer, T hat if one erect a house, and build a con - duit thereto in another part of his land, and convey water by pipes toThe l ipuse. ana after warg_ sell the house with the app u rtenances, pyr>p[ >t ing the la nS. Of sell the Jaiid to~anolher, reserving to nuuseif the hous e, the^conduit " and p iposjass with tiie bou se ; because it Is necessary, et quasi appendant thereto ; and lie shau have li berty by law to dig in the land for a mending the pipes._o r making them new, as the case may require,'' etc; ' ^ Ch. 4) CREATION OF EASEMENTS BV IMPLICATION 481 but whether upon the severance of the property there was this (if I may use the expression) continuous and apparent easement in respect of which a reservation might be claimed, or an impHcation of a grant might be made. Lord Chief Justice Tindal deals with the matter, as it appears to me, upon the supposition tliat the general maxim is thatUi" ^ . / m an who conveys property cannot derogate from his grant by reserv - ^X^f-M-*-!: rW< / i ng[ to himself impliedly any con tinu ous apparent easements; he says (j (Id. 309), "It is well established by the decided cases that where^ ie sa me person possesses a house, having the actual use a nd enjoyment of \^ ^J0 §a^(^alIX^ ce rtain lights, andaJso po ssesses t he adjoining land and sells the hous e ^^ ^ to "another person, although the lights be new he cannot, nor canan y VJ^-'*-'"^-^ one who claims under him, build upon the adjoining land so as to o b- st ruct or interrupt the enjoyment of those light s. The principle is laid down by Twysden and Wyndham, JJ., in the case of Palmer v. Fletch- er, 1 Lev. 122, 'th at no man shall derogate from his own gra nt.' The same law was adhered to in the case of Cox v. Matthews, 1 Ventr. 237, by Chief Justice Holt in Rosewell v. Pryor, 6 Mod. 116, and lastly, in the later case of Compton v. Richards, 1 Price, 27. And in the presen t cas e, the sales to the plaintiff and the defendant being sales bv the s ame vendor and ta kin g place at one and the same time, we think th e rights of the parties are brought within the application of this gene ral r ule of law ." It appears to me, therefore, that this is a decision which fortifies the previous decision of Lord Holt. I now come to ^yer v. Carter, 1 TJ .Rr N. Q1(S , which seer n <; t" hfpa k t he hitherto unb roken current of authority upon this po int, and there can be no doubt thatSir Henry Jackson is justified in saying that if that case is right this appeal ought to be allowed. That was a case of a somewhat special character. A house was conveyed to the defendant by a person who was the owner of that house, and also of the house which was subsequently conveyed to the plaintiff; and there had been during the unity of the ownership the enjoyment of the easement of a spout which extended from the defendant's premises over the plaintiff's premises, and by which water was conveyed on to the latter. But it is material to observe that the water when it came on to what were sub- sequently the plaintiff's premises was conveyed into a drain on the plaintiff's premises, which drain passed through the defendant's prem- ises, and in that way went out into the common sewer. Subsequently the house over whichvthis easement existed was conveyed to the plain- tiff, and upon an obstruction of the drains in the defendant's house, which, be it observed, immediately caused a flooding of the plaintiff's house by the very water coming from the defendant's house the plain- tiff brought his action, and it was held there that the plaintiff was enti->^ tied to maintain his action, a nd that upon the original conveya nce to>4>*i^ *• CA'^ICx t he defendant there was a res ervation to the grantor of the right t o ^ carry j iway t his water which~came trom the defendant's premises b y t he medium of the drain which also went through his premis es. Aig.Pkop. — 31 182 DERIVATIVE TITLES (Part 2 Though those circumstances were special in their character, tliere is no doubt that the principles laid down by the Co urt of Exchequ er were as wide as possibly could be. T hat Court laid down that there was no di stinction between implied reservation and implied grant; and this, as it appears to me, broke the hitherto unbroken current of authority upon this subject. Now, although it is possible that tlie actual decision in Pyer v. Car- ter, 1 H. & N. 916, was not exactly overruled, the principles there laid down were clearly and distinctly overruled by the same Court in White v. Bass, 7 H. & N. 722, the facts of which case were these: A man was the owner of certain land and of a certain house which had windows through which the light, not as an easement but as a matter of enjoyment had come for some timiC. He let the land (reserving the house) to trustees, subject to certain covenants by which they were to build in a particular manner upon the land, and if those covenants had been complied with, and they had built in the specific manner, there would have been no obstruction to the lights of the house which the grantor or the lessor reserved. Therefore, if we were entitled in these cases to go back to matters which existed before the time of the con- veyance, we should have found here, as clearly as could be shown, an intimation on the part of the lessor that if building was to be -permit- ted on the adjoining land, it was only to be permitted under such con- ditions as would prevent the lights of the house being obstructed. But that being originally the position of matters it was fpllowed by a con- veyance of the reversion in the land to the trustees, and subsequently to that conveyance tlie house was conveyed to another person, and buildings having been put upon the land occupied by the trustees con- trary to the terms of the original covenant, and of such a kind as ob- structed the lights of the house, an action was brought by the person to whom the house was conveyed. In that action it was decided that the defendant held his land unfettered by the original covenant, and unfettered by any implied reservation, and that he was entitled to build in such a way as he thought proper on his land, although the effect of what he did might be to obstruct the lights of the plaintiff. In giving judgment Lord Chief Baron Pollock says this (7 H. & N. 730) : ''My brother Petersdorff "has cited no authority for the precise matter which he has urged before us, and I think that in construing a conveya nce o f land we must collect what th e pa rties intended from the langu age t hey have used. It seems to me that we cannot look into the lease of the 2d of October, 1855, for it is merged in the f ee, a conveyance o f t he reversion having been made to the lessees, and we must look to th at rnriArpyanrpa lnnp in order to ascertain the rights of the parties. In that conveyance there is no covenant by the^ purchasers not to build o n t he land so as to nhstrnrt the light and air coming to the wirnjowq of t he plaintiff's house, nor indeed any limitation of the right to use the land." Now, no case^an be more clear and distinct upon. the point which we have to decide to-day, and the case is admitted by Sir Henry Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 483 Jackson to be such, but he suggested that we ought to overrule it as being an exception to the general current of authority. So far from that being the case, Pyer v. Carter, 1 H. & N. 916, appears to me to have been the exception, and not White v. Bass, 7 H. & N. 722. The latter case was followed by Suffield v. Brown, 4 D. J. & S. 185. A good deal has been said about that case; and the principles upon which this Court ought to act in dealing with decisions of Courts of co- ordinate authority have been also discussed. I think I may say for myself (and I believe I am expressing the views of the other members of the Court) that we ought not to lay down as an absolute rule that decisions of Lord Chancellors, at all events sitting alone, are to be taken as decisions of the Court of Appeal, and absolutely binding on this Court so as to prevent us from even looking into the grounds or considering the case which was before the particular Lord Chancellor. But no doubt the greatest weight ought to be given to such decisions, and unless they are shewn to be manifestly wrong or manifestly con- trary to the general current of authority on the point decided, it appears to me that we ought not to take upon ourselves to overrule them. That being so, let us look a little more narrowly into that case. First, we have to see what was decided — and by that I do not mean what was absolutely necessary to be decided, but what really the Lord Chancel- lor took upon himself to decide, and, although he might have decided the case upon other grounds, put as his ratio decidendi. Upon that point there can be no doubt. We have only to read the close of his judgment to see that he put it entirely upon this principle, which I have stated as the second of the general rules applicable to cases of this kind, that a man cannot derogate from his own grant, and that as a general rule no implication can be made of a reservation of an ease- ment to the grantor, although there may be an implication of a grant to the grantee. The Lord Chancellor closes his judgment by saying (having dealt witli some of the authorities as to continuous and appar- ent easements) : "But this is irrelevant to my decision, which is founded on the pl ain and simple rule that the grantor, or any p erson cl aiming under him, shall not derogate from the absolute sale an d g rant whirji he ha-^ m^c] e_" Although, therefore, it is perfectly true tliat, looking to the special circumstances of that case, it might have been decided upon those special circumstances so as even to admit the proposition for which Sir Henry Jackson contends, it is equally clear that the Lord Chancellor did not so decide the case, but decided it upon a distinct negative of that proposition. If we were to stop here, it seems to me that, looking to the fact that this was not a case in which this point in question was mooted for the first time, but that the point had been mooted and decided as early as the third year of the reign of Queen Anne, we should not be justified in doing anything but fol- low the principles enunciated by Lord Westbury. But Suffield V. Brown, 4 D. J. & S. 185, has been confirmed by an equally high authority, for in Crossley & Sons v. Lightowler, Law 484 DERIVATIVE TITLES (Part 2 Rep. 2 Ch. 478, Lord Chelmsford as Lord Chancellor had to deal with a similar question, and he there says: "Lord Westbury, however, in the case of Suffield v. Brown, refused to accept the case of P^^ v. Carter, 1 H. & N. 916, as an authority, and said.V tt seems to be m or? w, ( re asonable and jus t t o hold that if the grantor irftends to< reserve any IJbJt^^ ' \ right over the property ^g^ranted it is his dutv to r eserve it. expressly Vj" /yv^ -\ i n the grant rather than to limit and cut down the operation of a plain {\/^ I grant (wh ich is not pretended to b e^ otherwise than in conform]t y_with 1 / th e contract between the parties) bvthe fiction of an implied reserv a- V "v*^^ I tion? Tentirely agree with this view. It appears to me to be an im- 1 Pj/^ material circumstance that the easement should be apparent and con- \' tinuous, for non constat that the grantor does not intend to relinquish it unless he shews the contrary by expressly reserving it. The argu - ment of the defendants would make, in every case of this kind, a ji '■ i mplied reservation by law ; and yet the law will not reserve anythi ng \ out of a grant in _£aY Our of a ^antor except in case o f i iece^^sityJ ' . \ Now the only case in the Court of Appeal which is suggested as be- ing contrary to this high authority of two Lord Chancellors, is Watts v. Kelson, Law Rep. 6 Ch. 166, 174, and no doubt there are observa- tions of Lord Justice Mellish to the efifect that the order of conveyance in point of date is immaterial, that Pyer v. Carter, 1 H. & N. 916, is good sen^e and good lav/, and that most of the Common Law Judges have not approved of Lord Westbury's observations. But, putting (Oj^ aside for the moment that this was a mere dictum of the Lord Justice ^ . VP^ ^ during the argument, I must observe that this is not exactly so, as in^ ^ ^jiF^^ Whifp V Rnqq^ 7 H . ^r \ . \ . J7? . the TnHo-p<; nf thp Cnnrt of Exche quer f^^ J, , h ad distinctly, jii,jD£§aijds_the.r'"^'^^^^n IT "f ^Y ^^ v- Carter, overrul ed f^^ - ^ t hat case. No doubt, also. Lord Justice James says, "I am satisfied ^^jHT with the decision in Pyer v. Carter." But in the considered judgment '.^^^ of tlie Court, when if it had been intended to say that Suffield v. ^^^ Brown, 4 D. J. & S. 185, was not law, one would have thought there would have been something distinct upon the point, there is not one word to the effect of that which had been said by the Lords Justices during the argument. All that is said about it is this, Lord Justice Mellish, who delivered the judgment, after referring to Nicholas v. Chamberlain, Cro. Jac. 121, said, "This case has always been cited with approval, and is identical not only in principle but in its actual facts with the case now before us. It was expressly approved of by Lord ^ Westbury in Suffield v. Brown, 4 D, J, & S. 185, where, though he ob- rA^ jected to the deQJsion in Pyer v. Carter, 1 H. & N. 916, in which it was ^»^^ b p|r] th^ ^- a ria{j t to an cxistcut continuous apparent easement was im - ^jJ^ |i) pjiedly res erved in the co nveyance by the owner of two houses in t he ^ jLy^^ allej o^ed serviej ii:.iiQii^_es.^vet he seems to agree that the right to such an easement would pass b y implied grant where the domijiant tenem ent i s conveyed first ;" and that is what the Court of Appealhad to decide in Watts v. Kelson, Law Rep. 6 Ch. 166. Therefore Watts v. Kelson is no authority to justify us in overruling Suffield v. Brown, still less Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 485 for overruling it, supported as it is by the case of Crossley & Sons V. Lightowler, Law Rep. 2 Ch. 478. Thus, then, as it appears to me, stand the principal authorities on the general rules of law which I stated at the commencement of this judgment. Other cases which have been cited during tte- argument illustrate the exceptions to the second of those general rules. As I have already said, th ere is an undoubted exception in cases where the easement is w hat is called a way of necessity . Thus in Pinnington v. Galland, 9 Ex. 1, 12, which was a case for disturbance of a right of way, there were five closes, two of them called the Holme Closes, which were sep- arated by the others from the only available highway, and which were conveyed subsequently in point of time to the conveyance of the re- maining closes through which this way de facto ran. In deciding that the way still existed, Baron Martin appears to me to have put the case entirely upon the exception to which I am referring. He says this : "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 con- veyed to Mr. Dearie had passed out of him. There is no doubt appar- ently 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 1 Wms. Saund. 323. n., proceeds thus: (|*4v***>~V^'*' 'S o it is when he grants the land and reserves the close to himself ;' /^ y//.^ and he cites several authorities which fully bear him out: Clark v. 'V*'^^'^'^ Cogge, Cro. Jac. 170; Staple v. Heydon. 6 Mod. 1; Chichester v. (/ Lethbridge, Willes, 72, n. ft n n dnnht- sppms extr^nrdi nnry tVinf n mnn s hould have a right which certainly derogates from his own grant ; but t he law is distinctly laid down to be so, and probably for the reason given in Dutton v. Taylor, Lutw. 1487, that it was f or the public good , a s otherwise the close surrounded would not bec apable of cultivatign ." Now those last words clearly shew that the whole foundation of the judgment in the case of Pinnington v. Galland, 9 Ex. 1, 12, was that the way claimed in the case was a way of necessit y, and it is equally clear, as it seems to me, that Baron Martin and the Court whose judg- ment he delivered in no way disputed the general maxims to which I have referred. The c ase of Dav ies_v^ ear , Law^ep. 7 Eq. 427 ...431. als o appears to me to have been dec ided onjthe^same^asis. There a rnan, a builder, had got a lease of land for the purpose of building upon that land, and he proposed to build upon it in such a way as that through an archway, which was, at all events, standing to such an ex- tent as to shew that it was intended to be used for a passage — that through that archway should be the only means of communication with certain stables which were to be erected. That being the position of tilings, a portion of the land was sold to a third person, and the ques- tion arose whether it was open to that person to build upon his land in such a way as to obstruct this one only way into the stable. The Mas- ter of the Rolls (Lord Romilly) held that it was not. And why? He ^' i86 DERIVATIVE TITLES (Part 2 founded his opinion upon the basis of this exception to which I am re- ^) ferring. He says: "The question is, whether the defendant has a Zr right to shut up the archway, and to intercept all access to Erskine Mews through this passage. This de pends upon whether th is ease- m ent is reserved by impilication on the assignment of the house to' th e defendant: and this depends upon whether the easement is apparent , and also is a way o f necessity." These cases in no way support the proposition for which the appel- lant in this case contends ; but, on the contrary, s upport the propositi ons t hat in the case of a grant vou may imply a grant of such continu ous a nd apparent easements or such easements as are necessary to tlie j ea- s onable enjoyment of the property conveyed, "and have in , fact been en- j oyed during the unity of ownership, but that, with the exception whic h I have referred to of (easements of necessitv.^vou cannot imply a sim i- l ar reservation in favour of the grantor of land . Upon the question whether tliere is any other exception, I must refer both to Pyer v. Carter, 1 H. & N. 916, and to Richards v. Rose, 9 Ex. 218, and, although it is quite unnecessary for us to decide the point, it seems to me that there is a possible way iri which these cases can be supported without in any way departing from the general maxims upon which we base our judgment in tliis case. I have already pointed to the special circumstances in Pyer v. Carter, and I cannot see that there is anything unreasonable in supposing that in such a case, where the defendant under his grant is to take tliis easement, which had been en- joyed during the unity of ownership, of pouring his water upon the grantor's land, he should also be held to take it subject to the reciprocal and mutual easement by which that very same water was carried into the drain on that land and then back through the land of the person from whose land the water came. It seems to me to be consis_t £iiL^vith r eason and c ommo n sense that th e se reciprocal easements should be im - plied; and, although it is not necessary to decide the point, it seems to me worthy of consideration in any after case, if the question whether Pyer v. Carter is right or wrong comes for discussion, to consider that point. Richards v. Rose, although not identically open to exactly the same reasoning as would apply to Pyer v. Carter, still appears to me to be open to analogous reasoning. Two houses had existed for some time, each supporting the other. Is there anything unreasonable — is there not, on the contrary, something very reasonable — to suppose in that case that the man who takes a grant of the house first and takes it with the right of support from that adjoining house, should also give to that adjoining house a reciprocal right of support from his own? One other-point remains, and that I shall dispose of in a very few words. It is said that, even supposing the maxims which I have stated to be correct, this case is an exception which comes within the rule laid down in Swansborough v. Coventry, 9 Bing. 305, and Compton v. Richards, 1 Price, 27, namely, that, although the land and houses were not in fact conveyed at the same time, they were conveyances made as Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 487 part and parcel of one intended sale by auction. It seems to me that that proposition cannot be supported for one moment. We start here w ith an absolute conveyance in January, 1876 . What right have we to lo ok back to any previous contract or to any previous arrangem ent ^>-:p» b etween the parties ? If it had been the case of an ordinary contract, ^--i-^ and there had been parol negotiations, it is well-established law that you cannot look to those parol negotiations in order to put any con- struction upon the document which the parties entered into for the purpose of avoiding any dispute as to what might be their intentions in the bargain made between them. The same rule of law applies, and even more strongly in the case of a conveyance, which alone must reg- ulate the rights of tlie parties. In the cases which have been cited the conveyances were founded upon transactions which in Equity were equivalent to conveyances between the parties at the time when tlie transactions were entered into, and those transactions were entered into at the same moment of time and as part and parcel of one trans- action. Th ere mav be. and there is. according to Swansborough v. C oventry. 9 Ring. 305. another exception to the rule which I h ave men- tioned ; but h ere the sale by auction was abortive as regards the defe nd- a nt's prope rty. There was a con veyance in January of the plaintiff's property wit hout any reservatio n, and there' was no contract of pur - chase o n the part of the defen dant until more _tl'ian a month afte r that c onveyance had been com plete! TtTdieveTTamexpressing the view of the other members of the Court when I say that it appears to the Court that un der such circumstances there is no exception to the general ru le. For these reasons, therefore, the appeal should be dismissed. James, L. J. The Lord Justice has been kind enough to express the judgment of the Court. I only want to say something in addition, that in the case of Nicholas y. Chamberlain, Cro. Jac. 121, the C ourt see ms to ha ve really proceeded on the ground that it was not an in - c orporeal ea sPTTipnf^ hnt fhnt the whole of the conduit through whic h t he water r an wa'^ ^ corporeal part of the hous e, just as in any old city there are cellars projecting under other houses. They thought it w as n ot merely the right to the pnssngp of \v7\\er , but th at the conduit its elf passed as part of the hpuse. just like a flue passing through ano ther man's house. The appeal is dismissed with costs. BaggalIvAY, L. J., concurred. PHILLIPS y. LOW- (Cliancery Division, 1S91. [1S92] 1 Ch. 47^227^ The plai nti£E-^Ar thur Phillips was the owner in fee o f a messua ge known as Me adowcrof t^t Catford, in the county of Kent, and the plaintiff Buck was the lessee thereof. The defend§, nt5; were tht;^ rvwners in fee of the land lying to thf^ north o^and adjoining" Meadowcroft. and had obstructed the light and a ir 488 DERIVATIVE TITLES (Part 2 ^ Ti comi ng thereto by erecting a buildin .£^ and placing hoardings on the land close to the messuage. Th e messuage anH InnH fo rmerly both, belonged to one T- J- Stai nton, w ho died possessed thereof in the year 1R7? | hp having previously built the messuage as a washhouse, stables, billiard room, and observatory, and i t was the ac cess of l ight and air to a door and windows in suc h niessijage which the_defeii dants ha d nbstriicted. At the time the messuage was built and down to the time of the death of J. J. Stainton the only building standing on the land to the north of the messuage was a cot tage ca lled JLaurel Ijudger-surrounded by a garden occupied by one G. T. Williams, and no t interfering in any way with any light or air coming to the messuage. . J. J. Stain tori_inade his w411 dated the 30 th of June, 1875, and th ere- by devised to G. T. WiTT iams the cottage called Laurel Lodg e. ^together wi th the Jand th ereto a djoming up to the boundary of Meadow croft. a nd devi s ed all th e residue of hi^ freehold p ro perty to trustees up on trust for sale. The plai nt iff E Jyllips became entitled to Meadowcroft under an ex- ercise of the trust for sale contained in the said will . T be defendan ts p urchased L nuu ^l Lod^e and tlip ndioining land from G. T . V Villiams. The plaintiff Buck resided in one part of Meadowcrot't, and carried on business as a coachbuilder on the other part thereof. In August, 1890, the defendants com menced to build a lodge on t he n orth side of Meadowcroft within a few inches thereof which almo st e ntirely obstructed the light and air coming to the door and wind^w^ i n sucn messuage. Complaints were made by the plaintiffs to the defendants that they were n ot entitled to build the lodge , and the defendants insisting that they had such right, the writ in this action was issued on the 26th of January, 1891, and on the 29th of January th e defendants commenc ed t o erect, and shortly afterwards completed a hoarding painted bla ck within six inches of most of the windows and openmgs in Meadow - c roft, A motion was made in this a ction for an injunction to restrain the obstruction to the access of light and air as aforesaid, whereupon the defendants undertook without prejudice to remove the hoarding and the motion was ordered to stand till the trial. T he plain tiffs__cl aimed that the defendants might be restrained fro m o t^structing or interfering with the access of light and air coming_ to M eadowcroft, and that they might be ordered to remove the building already erected by tliem, or to pay to the plaintiffs damages for ob- structing and interfering with the access of such light and air. The action now came on for trial. ChiTty, J. N othing turns on the particular language of the wilL — that is admitted. The circumstance that th e devise of the defend ants' te nement is__ £:^ress ed to be made free of incumbranc es^ that it is a specific devise in form, and that the plaintiff's' tenement is comprised Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 489 in a residuary devise of messuages, are all immaterial, and rightly ad- mitted to be so. T he term "incumbrance" does not affect the question of light ; and a devise of land, though in form residuary, is spec ific. Lancefield v. Iggulden, Law Rep. 10 Ch. 136. The question, then, may be stated in this simple form : A man being se ised in fee in possession of a house with windows, and of an adjoin- ing fieldoveT~wHinrtITeTTght required for the windows passes, devises the house to one and the field to another; d oes the right to the lig ht o ver the field pass to the devisee of the hous e, o r is the devisee of th e f ield entitled to block up the windows ? If the owner of the house and field by deed for v^lue grants the house but retains the field, it is se ttled law that a right to the light r e- J-J ennr*>jux/ a^ qu ired for the enjoyment of the house passes to the grantee? Why? / /-^y^TA The reason stated in Palmer v. Fletcher, 1 Lev. 122, the leading case . , ^ on the subject, is that "the lights are a necessary an d es sential part of ^-*-*'^^* t he house ." In other words, what is conveyed is not a mere brick or stone building with apertures called windows, but a house with win- dows enjoying light. This is the broad, substantial reason which com- mends itself at once to the common sense of mankind. Worked o ut so niewhat more technically, the conveyance operates as an implied grant of the light . Blocking up the windows by the grantor is regard- ed as an attempt on his part to derogate from his grant — a form oi expression which assumes that the right to light has passed to the grantee. The implication does not necessarily arise upon a mere perusal of the deed itself. Generally the situation and ownership of the adjoining field is not disclosed; b ut the implication of grant arise s yjJ^^,^*^ >LAj pr ^ma facie so soon as the facts are ascertained that the light required « - • — ^' f or the windows passed over the field, and that the grantor was own er ^^**^'^V^ '^^ oi the field at the time of the gran t. On these facts being known, and ' ' in the absence of any other special circumstances, t he law imputes j o t he parties an intention that the easement of light should pass with t he h ouse bv virtue of the gr ant As I have recently stated with more ful- ness my opinion in regard to the subject of the implied grant in the case of Bcddington v. Atlee, 35 Ch. D. 317, I refrain from repeating what I there said. When all the surrounding circumstances which may legitimately be inquired into are made known, the result may be dif- ferent — the prima facie implication or inference may be wholly dis- placed or considerably modified, as was held in the case of the Birming- ham, Dudley and District Banking Company v. Ross, 38 Ch. D. 295. Where the implication arises, the easement which passes is an easement created de novo. The pri nciple of the decision in Palmer v. Fletcher, 1 Lev. 122, ap - p lies where the h ou se and the land are sold and co nveyed t o two differ - e nt gra ntees _contempora n eously, as stated by the late Master of the Rolls (Sir O. Jessel), in his judgments in Rigby v. Bennett, 21 Ch. D. 559, 567, and Allen v. Taylor, 16 Ch. D. 355. ' ' It was argued for the defendants that the principle applies only 490 , DERIVATIVE TITLES (Part 2 where the conveyance is by deed for valuable consideration. No au- thority was cited in support of this contention, which appears to me to be absolutely without foundation. The implied grant does not arise from the consideration for the grant, but from the grant and the sur- rounding circumstances, whether the intention of both the grantor and grantee under a voluntary deed is regarded, or the intention of the grantor alone is regarded, the result is the same. The intention to b e i mputed is that a house with lights shall p ass. This argument as to a voluntary conveyance was a step towards the ^^yy J, d efendant's main. contention , t hat the principle does not apply to a wil l. 'iT''^' / . ." In mv opinion, it does apply to a wil l. No authoritv for this con ten- ,,^^^0sjA'%n ti ^n on the defendants' p a rt was cite d. All the reasoning on the sub- i.^%jf iK'iH^'' ject appears to me to apply to a will w here the intention of the testa tor • alone is regarde d. A will operates as a simultaneous conveyance o f t he house and the field to the two devise es! The question is covered, or all but covered by two authorities cited for the plaintiffs. In Barnes V. Loach, 4 Q. B. D. 494, it was decided that the easement of light passed witli the house without express words, the ground of the de- cision as stated in the judgment of the Court being, t hat if the own er of an estate bag hppn in the habit of using qu asi easem ents of an a p- parent and continuous character over the one part for the benefit o f t he other part of his property and aliens the quasi dominant part to one person, and the qu asi servient to anothe r,Jhe respective alienees, m the absence of express stipulation, t ake the land burdened or b enefited as t he case may be, by the qualities which the previous owner ha d a righ t t oattach to them. . Pearson v. Spencer. 1 B. & S. 571 : 3 B. & S. 761. was a case of a will. The t estator had unity of possession of an esta te I which he divided by his will into two farms, devising one to the pla in- t iff and the other tp the person under whom the defendant claim e d . The way claimed by the defendant was the sole approach which had been used by the testator for the house and farm devised to the person through whom he claimed. It was decided that this way passed to the devisee of the defendant's farm, although there were no express words of gift of the way. In delivering the judgment of the Court of Queen's Bench, Blackburn, J., after referring to the distinction between con- tinuous and discontinuous easements, stated that Pheysey v. Vicary, 16 M. & W. 484, was an authority that the rule in this respect applied as well to a will as to a deed. In delivering the judgment of the Exchequer Chamber, Erie, J., stated that the judgment of the Court below was upheld on the construction and effect of the will taken in •connection with the mode in which the premises were enjoyed at the time of the will. He said that the case fell under that class of implied grg^s where the re is no necessity for the right claimed, but where _the t enement is so const ru cted as that part of it in volv es a necessary de - pende nce, in order to its enjoyment in the state it was when devise d. upon the adjoining tenement. Upon the facts of that case, the Courts held that the way passed under the will. The ground of this decision Ch. 4) -ty^-i^^- CREATION OF EASEMENTS BY IMPLICATION 491 applies to the present case. The house devised to the i>ersons through whom the plaintiffs claim contained windows so constructed as to in- volve a n ecessary dependence , in order to its enjoyment of light^ up o.n t he adjoining tenement. Light is an apparent continuous easemen t. Gale on Easements (4th Ed.J p. 22. The case of Polden v. Bastard, Law Rep. L Q. B. 156, which related merely to the easement or quasi easement of a way which is a discontinuous easement, is not in point. It was part of the argument for the defendants, that the basis of the doctrine laid down in Palmer v. Fletcher, 1 Lev. 122, and developed by subsequent authorities, was contract, or implied contract on the part of the person retaining or taking the field that he would not obstruct the lights, and th at where there was no contract, the doctrine wa s in- rf*/^ C^v^Zfc*^ a pplicable ^a nd consequently that as there was no contract between a testator and his devisees, there was no ground for applying the doctrin e t o the case of a will. In support of this contention, certain expressions of the Lord Justices in their judgments in the case of the Birmingham, Dudley and District Banking Company v. Ross, 38 Qi. D. 295, were cited. It is unnecessary to deal with them at length. It is sufficient to say, that i n^mv opinion the Lords Justices did not intend to alter, the l aw as to implied grants, and that my decision in this case is not affecte.d b y anything which fell from them ; a nd further, assuming that whe re th ere is a deed between parties, the doctrine ought to be explaine d t heoretically as resting on contract as its basis. I see no difficulty in applying by analogy, in the case of a will, a n obligation, o r conditio n, or duty (whichever may be the right term) on the part of the devi see, or imposed on him by the testator, not to obstruct the access of lig h t t o the house devised to anothe r. I prefer, however, to rest my judg- ment on the broad principles already statedj RAY V. HAZELDINE. (Chancery Division. [1904] 2 Ch. l^^Jw >j ' ^At^^^K^^f^^"^ Pr ipr to the date of the indenture next hereinafter me iytloned. tne defenda nt was the owner in fee simple of two adjacent nouses in Cheadle Hulme, Cheshire . By an indenture dated October 18, 1895, the defendant co nveyed one of these houses to the plaintiff's husban d i n fee simple, and this house was subsequently conveyed by him to th e 7 Milner's Safe Co. v. Great Northern & City R. Co., [1907] 1 Ch. 208 ; Gor- ton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 97 N. E. 54, 38 L. R. A. (N. S.) 882 (1912), ace. So, also, in Mason v. Horton, 67 Vt. 26G, 31 Atl. 291, 48 Am. St. Rep. 817 (1894); Johnson v. Gould, GO W. Va.-84, 53 S. E. 798 (1906), where the severance was brought about by partition among heirs of the common owner. In Maynard v. Esher, 17 Pa. 222 (1851), the properties were sold separately at the same public sale. It appeared that the deed of the quasi servient tene- ment had been made just prior to the deed of the quasi dominant tenement. An instruction to the jury tliat under such circumstances the conveyances should be deemed as made simultaneously was held erroneous. 492 DERIVATIVE TITLES (Part 2 P:laintiff . In the western wall of the house retained by the defendant there were t wo windows overlooki ng a yard forming part of the pla in- tiff's premises! Nei ther of the windo ws was an ancient light, nor was any right to light in respect of either of the windows reserved in favour of the defendant by the indenture of October 18, 1895. The plai ntiff recen tly c ommenced to erec t a wall in her yard close t o these windows, so as completely to bloc k the access of light thereto ; but the defendant knocked down th e wall from his own premises, and i t was again erected and knocked clown ,. ' The plaintiff brought this action for a declaration tliat she was en- titled to build on her premises so as to obstruct the light to the two win- dows in question, and for a n injunction to restrain the defendant from throwing down the wall, and for damage s! . The defendant pleaded that the access of light to these two windows was ab solutely necessary fo r the enjoyment and use for habitation j if t he part of his house which was lighted by these windows. O f these two windows on e lighted a pan try and the other lighted a landing im mediately over the pan try. The evidence shewed that the landing could be lighted by making a s kylight in tlie r oof, and that the pantry could be li ghted by making a window i nto the sc ullery which adjoined the pantry, thus obtaining a borrowed light through the scullery ; but it was admitted in cross-examination by the plaintiff's surveyor that t he blocking up of the existing window would re n d er the pantry usele s s as_ajDantr}^. Kkkewich, J. If a vendor of land desires to reserve any right in the nature of an easement for the benefit of his adjacent land which he is not parting with, he must do it by ex press words in the deed of con- veyance. That is settled law, and expresses the result of the decision in Wheeldon v. Burrows, 12 Ch. D. 31, where the Court of Appeal affirmed the decision of Bacon, V. C. That is the general rule, but the rule is su bject to^ certai'i pyrf^^tion'^ One of them is the well-known exception of an e asement of nec essity — that is to say, where the en- joyment of the alleged right over the adjoining land is necessary to the property which is not conveyed, then the Court will consider the ease- ment as impliedly reserved, t hough it has not been reversed bv expre ss ^yords. S uch easement, or right in the character of an easement, may be a ri ght to the access of light to a particular wi ndow. In a large majority of cases a window which lights a room is deemed necessary to the lighting of that room and is, on the whole, essential to the com- fortable enjoyment of tliat room, but it does not follow that the right to access of light to that window is an easement of necessity. Where are you to draw the line? Supposing the blocking up of tlie window largely interferes with the comfort and enjoyment of the room, is the grantee of the adjacent land entitled to block it up, or does the exception stand ? It seems to me that the line to be drawn is pointed out by Stir- ling, L. J., in Union Lighterage Co. v. London Graving Dock Co., [1902] 2 Ch. 557, 572. His Lordship makes a distinction between an Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 493 * ea sement of necessity an d an easement necessary to the reasonable en - j oyment of property . After referring to the two rules laid down in Wheeldon v. Burrows, 12 Ch. D. 31, 49, and the exceptions thereto he says : "The appellants did not dispute that there is no express reserya- tion in the conyeyance to the plaintiffs, but they contended that the easement claimed by the defendants is an 'easement of necessity' with- ,in the recognised exception to the second rule. Now, in the passages cited the expressions 'ways of necessity' and 'easements of necessity' ' 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 enjoyment of the property conyeyed,' and the word 'necessity' in the former expressions has plainly a narrower meaning than the word 'necessary' in the latter. I n my opi nion an easement of necessity, such as is referred to. mea ns an easement without which the property retained cannot be used at all, an^noLimfe. ia£i: g|y rieces sa o: to the reason able, enjoyment of tha t property." Then, after pointing out that the lights in Wheeldon y. Burrow57l2 Ch. D. 31, 49, were reasonably necessary to the enjoy- ment of the workshop, he says : "So here it may be that the tierrods 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." That seems to me to draw the distinction between what is absolutely necessary and what is reasonably required for the enjoyment of the land and building as it stands. I n my judgment this is a window to which the access of lig ht cannot be reseryed by implication upon the ground that the light is necessary to the pantry . It cannot be that there is any necessity by reason of its being used as a pantry, since it can be used for other pur- poses. It cannot be said that a special use of light attaches to it as a pantry, and to say, as the defendant does, that access of light to that window is reseryed to him by necessity is giying to the wor4 "neces- sity" a meaning which it does not properly bear in this connection. [His Lordship m ade a declaration that the plaintiff was entitled to build on her heredi taments in such a mann er as to ob stru ct the lights - : . ■■ ' r^ of the two wmdows m question .]^ 8 As to the creation of the easement of lisrht and air by implication in the I JtC ^*^ / United States, see Kennedy v. Burnap, I2 n_rnl. 4.-^^ 52 Pac. 843, 40 L. R. A. ' 476 (1898) ; Keating v. Springer, 146 111. 481, ?A N. E. 805, 22 L. R. A. 544, 37 Am. St. Rep. 175 (1893) ; Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80 (1874) ; Mullen V. Strieker, 19 Ohio St. 135, 2 Am. Rep. 379 (1869), conclyding that such easement caiuiot be so created. Janes v. Jenkins, 31 Md. 1, 6 Am. Rep. 300 (1871) ; Greer v. Van Meter, 54 N. J. Eq. 270, 33 Ati. 794 (1896), contra. " As to light and air, I am fx'ee to say that I do not believe the rule, as a p- Tjlied" to our situatlAl^ and pirpimm fmipps. ^ sound one, which holds that u nder any circimistances this ripht can by implication be burdened upo n ^w afl^oin- mg estate, as to preveht the MVht^i' tlKJI'^Of I'J'OllI building upon or improving il as he pleases. I would reverse the rule and hold that h fi who claims rhnt t en, twenty or thirty feet adjoining him (which in cities may be y pry yfllnnhlpt shall remain vacant and unimproved, should found such claim upon an express 494 DERIVATIVE TITLES (Part 2 BRIGHAM V. SMITH. (Supreme Judicial Court of Massachusetts, 1S55. 4 Gray 297, 64 Am, Dec. 76.) Action of t ort for trespassing on a close to which the plaintiff clai m- ed title under a deed of warranty from William Sherman . The de- fendant justified under a way of necessity at tached to adjoining land, belonging, at the time of said deed, to Sherman, fro m whom the de- fendant also derived title. At the trial in the court of common pleas, it appeared that Sherman, at the time of the first deed, retained no o ther way to his remaining lot except over the land g^ranted. But Per- kins, J., ruled that the defendant could not justify under a way of necessity over land which he had conveyed by deed of warranty. The jury returned a verdict for the plaintiff, and the defendant alleged ex- ceptions. Thomas, J. I f A. conveys land to B., to which B. can have acces s o nly by passing over other land of A., a way of necessity passes by t he grant. If A. conveys land to B., leaving other land of A. to which he can have access only by passing over the land granted, a wayof_neces- si ty is reserved ii L-lIie-g-pa4rt^ These points are settled, as well in the cases cited for the plaintiff, as those cited for the defendant. Is the rule affected by the fact that the grantor conveyed by deed of warranty ? We think not. I f the way were expressly reserved i n t he deed, the c ovenants must apply to the premises granted, that isTan estate with a right of way reserved or carved out of the fee.~r ri the present case, the law does for the parties the same thing, and t he cov e- n ants apply to an estate^ ^^th this way o^ necessity reserved . Exceptions sustains [ate^witn tnis way ot ne grant or covenant." Dillon, C. J., in Morrison v. Marquardt, 24 Iowa, 35, 60, ti2 Am. Dee. 444 (1S6S) . In Rennyson's Appeal, 94 Pa. 147, 39 Am. Rep. 777 (ISSO), t he court said that t he easement of light and air would not arise by implication unless there was u""real necessity. " See, too, Kohinson y. Clapp, 05 Conn, 366, 32 Atl. 939, 29 L. R. A. 582 (1S95) ; Doyle y. Lord, 64 N, Y, 432, 21 Am. Rep. 629 (1876), In Manning y, N, J, Short Line R. R. Co,, SO N, J, Law, 349, 78 Atl. 200, 32 L. R. A. (N. S.) 155 (1910), the pl aintiff in n nroceeding for an award in con - d emnation nroceeding s whereby the defendant had taken a strip of land for purposes of a right of way, cl aimed the award should include compensatio n f or lateral support for the right of way burdened artificially by the railroa d f or railroad puriwses, it being contended that upon the acquisition of the right of way the company acquired by implication an easement of such lateral sup- port. 9 "I t is not the necessity which creates the right of wnv. bnt ^^^^ ^jj^^jflfl- struction of the. acts of the parties! J so necessity will justify an enBry^upon . a no?B?T^nHfTff^ ii""a man cab' be supposed to hold land without any right of access to it, a grant of it would not convey to the grantee any right to pass over the adjoining land, howeyer necessary it might be to the enjoyment of the thing granted. He w ould acquire nothing more th an his grantor he ld. The necessities of the parties would ada notnnig to It, uuuon y, Tayler, 2 Lutw, 1487, But the t rue principle is, that nothing will pass, as incident t.O' tbf> gra nt. e xcept it be necessary to the enioy Tupni- of flip prin cipal thing grante d. fTf^nce «-[)P prrnntpc r>t n r-i^^P s urrounded by the grantor's land, is entitled only to a ceuyeni ent way over the grantor's land, and will haye no right to i>a.ss oyer Jj b Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 495 DABNEY V. CHILD. (Supreme Court of Mississippi, 1909. 95 Miss. 585, 48 South. 897.) Dabney, appellant, was c omplainant in the court below . Child, appellee, was defendant there. From a decree in defendant's favor the complainant appealed to the supreme court. The facts are sufficiently stated in the opinion of the court. Mayeis, J., delivered the opinion of the court The complamSTcmu^^case -Lilt ^^w iiiplamOTt in fltis case executed to Child a warrantv deed to l, o ne acre of land in section 6, township 15. range 5 E .. in Warren i^ /"IM^C^xa^ county, and the d eed con tains no reservat ion of a ny easemen t what- w herever lie pleases. He may select a suitable route for his way, but in doing it be mu st regard the interest a nd cpnvenience of the owner of t he laiid, and when he has done it, he will be coutiued to the same way ana may not change its course according to his wishes or caprice. Russell v. Jackson (1824) 2 Pick. (Mass.) 574; Jones v. Percival (1827) 5 Pick. (Mass.) 485 [16 Am. Dec. 415]. Al though generally a man can acquire, as incident to a grant, on ly onp rJL^ht of way to the same close, v et the same nrincinie of necessity which raises the implication of one may extend it to two or more. Where a man should grant a tract of land surroupded by his own, so divided into parts by an impassable mountain, river or other barrier, as that there could be no passing from one part to the other, he would by necessary implication convey a right of way to each separate part, because without this some portion of the thing granted would be entirely useless to the grantee. P. ut these implications of grants ar e l ooked upon with jealousy and construed with strict ness. It is only the neces- sity of the ca.se which will carry one way ; and certainly the necessity must be not less strong to carry two. It is not pretended that the bluff across the defendants' land is impassable; but only tbat it is 'exceedingly difhcult to pass it, and that it would be much more convenient to the defendants to pass' over the plaintiff's land. Here is no such necessity as will raise an implication of a grant of different ways from dilferent parts of the defendant's lot. Con- v enience, even great convenience is not suthcient. If the defendants, when they purchased, had desired a separate way for this small section of their lot, they should have stipulated for it and had it expressly inserted in their deed." Mor- ton, J., in Nichols v. Luce, 24 Pick. (Mass.) 104, 105, 35 Am. Dec. 302 (1834). In Pettingill v. Porter, 8 Allen (Mass.) 1, 85 Am. Dec. 671 (1864), there had been an instiniction as follows: "The deed under which the plaintiff claimed conveyed whatever was necessary to the beneficial enjoyment of the estate granted, and in the power of the grantor to convey ; t hat it was not enoug h fr y thp pliiinfifT <-»» piT»vc> thni tl ip wny claimed would be convenient and beue - ti cial. but she must also prove that no other way could be conveniently maa e from the highway to her intestntp's linupe, without u nreasonable Itib or and expense ; that unreasonable labor and expense means excessive and dispropor- tionate to the value of the property purchased ; and that it was a ques tion f or the jui'y. on all the evidence, whether such new" way could be made wi th- out such unreasonable labor and exnenseT " Held a correct instructi om To same effect is Crotty v. New River & Pocahontas Oonsol. Coal Co., 72 W. Va. 68, 78 S. E. 233, 46 L. R. A. (N. S.) 156 (1913). In Hildreth v. Googins, 91 Me. 227, 39 Atl. 550 (1898), where in order to get to the land as incident to which the way of necessity was claimed it was neces- sary to go either over other lands of the grantor or over a portion of the ocean, it was held, t here being no evidence offered as to the unnvailnhilitY nf the ocean as a hLghway^ang means or access, that there w^as no w^ay of necessit.v oy^ r t he grantor s otner lands . See, also, Staples v. Cornwall, 99 N. Y. isupp. 1009 (1906): ~ As to w'ays of necessity where there are other possible means of access, see, generally, Corea v. Higuera, 153 Cal. 451, 95 Pac. 882, 17 L. R. A. (N. S.) 1018 (1908). '■^— /^^ iia^. ^i / ^ «^.. s.-^ DERIVATIVE TITLES (Part 2 ever. The o bject of this suit is to have the court declare that when t his c onveyance was made there was an implied reser v ation in the deed th at complainant should have a right of way to his own premises ov er the land conveyed ^ on tlie idea that it is a wav of necessity. The complainant has not brought himself within that rule of law which would warrant the court in declaring that there was any way of necessity reserved by implication in the deed, since t he bill itself show s t hat the way sought to be established is no more than a way of con - venience, a nd in no sense one of necessity, sin ce Child has already given him another way by which he has free access to and from his premises. One of the charges in the bill is that complainant is al- lowed "to pass to and from his land over land belonging to Child north of the one acre, but that this is by sufferance of said Child, and which, it avers, the complainant has no right to, but enjoys merely at defendant's will, and alleges that he has a right of way over the strip, which Child denies, and refuses to allow him to cross for this purpose, and that he seeks herein to have this court decree him this right." I t is thus seen that the complainant already has a wa y_,of necessity open to him, over which he may go t o the ve ry land in ques - ti on, and there can exist no rig-ht to claim another and ditferent w ay as a way of necessity, even though the route now used may be at i he sufferance of Child. If the appellant desires a private and permanent right of way. Code 1906, § 4411, provides an adequate remedy whereby . he may have a private way laid out. In 11 Cyc. p. 1171, a clear statement of the law in regard to implied reservations in deeds is made, supported by a great many authorities, and we quote the statement with approval. It is there said: " If th e g rantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. To say that a grantor reserves to himself in entirety that which may be beneficial to him, but which may be most injurious to his grantee, is quite contrary to the principle upon, which an implied grant depends, which is that a •' grantor shall not derogate from or render less effectual his grant, or -J» render that which he has granted less beneficial to his grantee. Ac - • j^Jr" c ordinglv. where there is a grant of land, with full covenants of w ar- ranty, without express reservation of easements^ t he best-considere d r^jjr jf^- c ases hold that there can be no reservation by implication, unless the *jky \a ^ easement is strictly one of necessity ; for the operation of a plain ^ ^ ' grant, not pretended to be otherwise than in conformity with the con- ^^ Hti/\' tract between the parties, o ught not to be li mited and cut down by th e jy^\ fi ction of an implied reservatio n. ^A*^ We do not think that the case of Pleas v. Thomas, 75 Miss. 495, 22 South. 820, is at all in point under the facts of this case. In the case just referred to the way claimed was one of necessity, well marked out, and had been in use for a considerable space of time. Not so here. The way is not one of necessitv . and it is not shown that it was ever in use as a right of way. The court said in Pleas v. Thomas: Ct-ut ^ yOw-tfkXv.*^ ./VX/|-C-nyvr»-fcMS^ Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 497 "The principles of law governing the case are not doubtful, but their application to peculiar facts is difficult and delicate." We repeat the same here ; but we do not think that appell ant has shown any such f acts as would authorize us to declare that there is an implied res er- vation of a way gf necessity in the deed of conveyance , when no necessity exist s. /Implied reservations, as against the express cove- nants of a deed, are n ot favored by the courts, and are to be limited to ways of s trict necessit y. /The fact that the land was practically given to Child by Dabney irfno way alters the principle.^" SEIBERT V. LEVAN. (Supreme Court of rennsylvania, 18-48. 8 Pa. 383, 49 Am. Dec. 525.) In error from the Common Pleas of Berks county. The facts of this case are fully set forth in the charge of the court below; and, as no other exceptions were argued in this court, either upon the argument in 1847, or upon the reargument in 1848, but those taken to the charge, it will be sufficient to present the case to the pro- fession, as it was presented to this court by the court below. Upon the trial there, Jones, P. J., charged the jury as follows : "This is an a ction on the case.for obstr ucting a certain race throug h w hich the water flowed to the plaintiff's clover -mill. "In 1830, George D. B. Keim was seised of a tract of la nd in this county through which flowed a stream of water, formed by the conflu- ence of springs arising on the land, and of a stream of water flowing into it from land situated above it. The str eam thus formed, flow ed i n its natural rliannel , tlr miip-h the lower part of the meadow on Keim's land, into the tract below, and w as used by him at the proper season ' o^ the year for the purpose of irrigating the meadow, by means of a ditch on the highe r part nf the, men now, nnd so much of it as was not consumed, flowed back again into the natural channel, by wh ich i t entered the farm adjoining below, the property of John Esterly . 10 Land was lenspfl nnri together therewith a right of way over other lan ds of the lessor. Under its powers of eminent domain a railroad comi)anj' erected an embankment across the lessee's right of way in such manner as to make im- possible the further use of said way. T he lessee had no other means of acc ess nnlpss lip bad ^ ri ght to pass nvt^v tliP nthpr lnT ]:ds of his lessor in some oth er lUie,. Did he have such rig ht? See Cornell-Andrews Smelting Co. v. Boston & P. E. Corp., 202 Mass. 585~ 89 N. E. 118 (1900). A strip of land cuffing across the grantor's farm was conveyed in fee to a railroad company, with no rcservijfion. except, as a part of the consideration. t nat the grantee should make a good crossing or roadwa y. Gas was later dis- covered on the part of the farm separated from the grantor's house by the railroad. Tl; e grantor claimed tbe right to put in a pipe line leading from th e ^ ^ells througnThe right of way to the house. The com pany objecte d, on the ground t hat pueh rigbt was not included in the reservation, is there any ground upon which the right so to locate the pipe line may be supported? See Uhl V. Ohio River R. Co., 47 W. Va. 59, 34 S. E. 934 (1899). Aig.Prop.— 32 .^ 498 DERIVATIVE TITLES (Part 2 ^^>C^' j:i^ w<) ?/(»A«3^ " By his deed of the 23d ]\Iarch, 1830, T ohn Esterly conveyed to Keim, in fee, the said farm adjoining him below, containing about t w o hundred acres . Keim, having thus become the o wner of both farm s, in A the same year er ected on the lower farm a mill for cleaning clove r- yc>t^^L, ^"y^^^**^ seed, &c., and for the purpose of supplving this mill with water, co n- ^ s tructed a long ditch or race, principallv on the upper f an n. with a A^ ^^^8-t/»»«^ pond or dani near the mill (w hich pond was also on the upper farm), ' through which the water of the stream before mentioned was con- ducted out of its natural channel for the purposes of the mill at ^such times as it was thought necessary to put the mill in operation. C "On the 31st December, 1841, Keim co nve ved that trac L-QJ 1?md, o n which the race and dam were, to Messrs. IMuhfehburg & Schwa rtz, whose deed was recorded on the 9th April followin g. On the 6th Au- "' gust, 1842, Keim mortgaged t h at tract of land on which" the mill wa s, to Jacob Bechtel and" others. O n the 22d October, 1842, Muhlenberg & Schwartz, entered into articles of agreement with the defenda nts, a cting as the agents of their mothe r ; whereby they covenanted J :o c onvey to her a certain portion of the tract purchased by them of Keim , o n which portion were the race and dam in question ; and, in pursuance of those articles, they executed their deed- to her on the 29th April, 1843. By virtue of a l evari _f aaas^ on a judgment confessed by Keim upo n the sc ire facias issued on the mortg age given bv him to Becht el an d others, that tract still held by Keim, and on whirh wa«; the ml ]] w^ as sold by the sheriff to the plaintiff, who received the sheriff's deed therefor, on 5th November, 1844. ' ' In neither of those deeds to Muhlenberg & Schwartz, or jrom t hem, is a;^y mention whatever made of this race and dam : noris t here ^ny reservation to Keim_and his heirs or assigns of any right whatever to have the water flow through that race to the mill, or to enter upon the land now of the Levans, f or the purpose of repairi ng-, cl eaning, or doing anything else to this race and dam. B y the first of those deeds, the land p assed absolutely, a nd ivit hoiU any restriction or rese rvation w hatever in favour of Keim, to his grantees, who ac- quired the most en tire and perfect dominion over i L the largest and most comprehensive known to our lazt's. Whatever may have been the relations and understanding between Keim and his immediate grantees, zvith regard to this land, M rs. Levan, in purchasing of the m, z vas not required to go further than their recorded deed in fee: w hich was equally notice to Keim's mortgagees of the lower tract, and to the purchasers from Keim's grantees of the upper tract, of the extent of the rights of these last. Thai deed reserving no right to this ra ce — > no right to have the waters Uoiv through it to the mill — no such righ t remained in Keim. or in those claiming under him, by any subscouen t conve yance or encumbrance of thnf. Imv pr trnrt Mrs. Levan took the upper tract from Muhlenberg. & Sclm'arta, as their deed conz'eyed it to them, as fully and as amply, as free and as exempt from all reserva- tions in favour of the owner of the lozver tract, as they had held it: uxWe_ca nnot say, that, un der all the circumstances in thij^case. t he law will imply a reservation ot the right to the race by Kei m when hv^ conveyed to Muhlenberg and Schwart z. We cannot distinguish this case in principle from CoUam v. Hocker, 1 Rawle, 108. And having that as a rule laid down to us by the highest tribunal in. the state, it is our and your duty to conform implicitly to its authority. '" Your verdict should he for the defenda n ts." Verdict and judg ment for defenda nts, whereupon this writ of error was sued out, and in this court those parts of the charge printed in italics, as well as the afiswers to the second and subsequent points of the plaintiff, were assigned for error. Gibson, C. J. \ Ve have before us a case in which the propri etor o f two adjoining tracts of land, through which ran a water-course to h is mill on the lower one, part of which was the natural bed of a sma ll stream, a nd part of it a trench from a neighbouring creek, conveyed tlie jipper tract expressly;^ without reserving the water-right,'^ to a part y w ho has obstructed the trench and cut off the supply o f water from__ tbe c reek . Such a watercourse is a nalogous to a way o f necessit y, which is n ot extinguished by unity of seisin, the only difference being that in the latter the right has not been created during the unity, but existed antecedently to it. But the time, not of creating the right, but of pa rt- in g with the land to which it was at t ached, is t he material circumsta nce. When the owner of a way sells the land through which it leads to a market, or a ville, or a church, he retains the way without an express reservation of it.; and why? Because, as appears in Jordan v. At- wood, Owen, 121, and the several cases collected in Woolrych on Ways, 71, the law p resum es he wQilld not have parted with a part of the pro p- e rty to t he ruin of the rest of it; and the presum ption is practically founded in ju'^tire ^fid truth. Is not a water-course as necessary to a mill as a way is to a ville or a church? Yet when the land is sold, th e easement is retained on the principle of implied reservati9n^ A right Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 501 of wa y and a rjo -ht of water-course ^be iiig alike subject to the gene ral l aw of easements, are not distinguishable from each other in any es- s ential particular. But we are not driven to analogies from association, however intimate; for it will be seen that there are several decisions, in cases of water-right, directly on the point before us. '''^ The three principal ones adduced on the part of the defendant are Burr v. Mills, 21 Wend. (N. Y.) 292; Preble v. Reed, 17 Me. (5 Shep.) 175 ; and Hayes v. Bowman, 1 Rand. (Va.) 420. In the first of them, a small part of the tract above, which was sold by the owner of the mill, was covered by the pool of the dam; and in an action for the damage, Mr. Justice Cowen, delivering the opinion of the court, said : "It can make no difference that there was then a dam built which flowed this land. If a man convey land which is covered with his rm jlH pond, without any reservation , he loses his right to flow it . There is | n o room for inT pli_e_d rese rvation . A man makes a lane across one farm to another, which he is accustomed to use as a way; he then conveys tlie former, without (expressly) reserving a right of way ; it is clearly gone, / ^man cannot, after he has absolutely conveyed away his lan d, u^ y AAAJA^ r stilTretain the use of it for any purpose,^ without an express res_^rv a- Vt ion . The flowing, or the way, is but a mode of use; and a grantor -^'''Mp'*-*''*'^*~W might as well claim to plough and crop his land." An argument, by an ^ • v analogy, to a right of water-course from a right of way, which, we have seen, may be retained without being expressly reserved, is merely a petitio principii ; and the doctrine of the entire paragraph, being as applicable to natural as to artificial water-courses, would justify the filling up of a natural pond, used as a reservoir; which is surely not the law. Nor does the claim of a water-course of necessity bear any resemblance- to a claim to plough and crop another's land, which would merely be an idle and extravagant pretension. He admitted that the land would have remained subject to the easement, had the owner of it retained it and sold the mill ; for which distinction, he cited Nicholas V. Chamberlain, Cro. Jac. 121 ; which clearly proves the particular position, but as clearly disproves his conclusion from it, as well as the whole doctrine predicated by him ; for it was held by all the court, "t hat if one erects a house and builds a conduit thereto in another pac t o f his land, and conveys water by pipes to the house, and afterwar ds s ells the house, with the appurtenances, or sells the land to anoth er, reserving to himself the house, the conduit and pipes pass with the h ouse." A s the reservation of the house is not an express reservation of the pipes, it must b e an implied on e ; and as we have seen that a vendee may set up an implied grant of a thing lying out of the limits of his conveyance, on the ground of necessity, w.e may infer tha t a ve ndor may, on t he same gr oun d, set up an implied reservation o f s omething wi thin them. It is not by force of the word appurtenances that a water-course, like the present, would pass by the grant of a mill, but by force of the 502 DERIVATIVE TITLES (Part 2 p rinciple that the grant of a thing includes all the means in the gr an- tor's power to attain it ; for the means shall pass inclusive without the words "cum pertinentiis," or words equivalent to them : Touchstone, 89. T he grant of the means, therefore, is an implied one , for it is cer- tainly not expressed ; and th ere is no imaginable reason why th ere s hould not be an implied reservati on where the land is sold and the m ill is retained. B ut to return to the defendant's cases. The second of them, Preble v. Reed, is a decision of the same stamp, in which the same doctrine is asserted without a reason or an authority given for it, excepting an instruction reported to have been given on a supposed state of facts in Hathorn v. Stinson, 10 Me. (1 Fairf.) 224, 25 Am. Dec. 228, which seems, it was said, to have met the approbation of the whole court. In the third of them, Hayes v. Bowman, it was barely held that a man who had granted a part of his land divided from the rest of it by a river, and expressly to the middle of the stream, had not a right to erect a dam from shore to shore for the better enjoyment of his mill-seat; but the court did not determine what would have been the law of the case had a dam been erected before the land was sold. The decision is a sound one, but it does not touch the point before us. The preceding cases make up the sum of what has been adduced as authority for the defendant; and we will now turn to the authorities on the part of the plaintiff. Besides Nicholas v. Chamberlain, which is full to the point, we have Sury v. Pigott, Palmer, 444, more fully reported in Popham, 166, and more intelligibly stated in Nov, 184. It seems from the last, that the case was this : A., seised of Whiteacre, with a house, curtilage,and hop-yard through which ran a stream to a pond in the curtilage for watering cattle, enfeoffed P., oi the hop-yard above, and leased tlie house and curtilage to S. P. stopped the stream ; and S. brought an action on the case for it; and the court held that t he right of water-course had not been extinguished bv the, unity o f seism. Yet there, as here, the defendant obtained title to the ground above by the earlier grant. I t was said by Dodderidge, that if "a man having a mill and water-course over his land, sells a portion"" of t he land over which the water-course runs ; in such case, by necessi ty^ t he water-course r emaine th to the vendor, and the vendee cannot st op it;!! and Crew, Chiet Justice, said that it had been adjudged accord- ingly in Day and Drake's Case, 3 Jac. 1, in the King's Bench. The opinion of Chief Justice Popham in Lady Brown's case was also cited by him, in which it was held that if one "hath a stream of water which runneth in a leaden pipe, and he buys the land where the pipe is, and he cuts the pipe and destroys it, the water-course is extinct because he thereby declares his intention and purpose that he does not wish to enjoy them together"; the inference from which is, that if he had sold the land without cutting the pipes, the easement would have re- mained, and he instanc ed the ca se of a dve-house with water runnin g to it, in which it was held that a purchase and subsequent sale of the Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 503 l and on which the water was current, by the owner of the dye-ho use, d id not extinp^uish the easement. These are ancient cases, but they seem to have been deeply consider- ed, and founded in the soundest ma>:ims of tlie laws. It is admitt ed th at the owner of adjoining tracts traversed by a natural water-cour se, i s as much entitled to the use of the water, having sold the upper on e a s if he had not owned i t. The vendee would be entitled to a reason- able use of it, returning it, when it had served his purpose, to its for- mer channel, so as to make it enter the tract below at the point where it entered it at the time of the sale ; and what difference could there be, whether the channel to lead it to that point were made by water or by the hand of man ? There is no particular charm in a gully cut by natural agents. While the grantor was lord of the whole, he might assign a permanent channel to the stream, and as regards himself or those to claim under him, impress it with any character he should see proper. There is no peculiar sanctity in the natural bed of a stream, which is perpetually changing its course from accidental causes. Had the connexion with the natural water-course leading from the springs to the mill, been made by a flood tearing its way through the bank of the creek, it would not have been pretended that the grantee, having purchased with the fact before his eyes, would have been at liberty to destroy it. But that it would have been entitled to no consideration as a dispensation of Providence, is shown by the undoubted right he would have to mend a breach made after his purchase. It is true the rule is, that water shall flow ubi currere solebat et consuevit ; but that regards the duty of returning it, and not the nature of the channel. It was said by Dodderidge, in Sury v. Pigott, that as water descends it is al- ways current, et aut invenit aut facit viam ; and he asked, "Shall suc h a thing be extinguished which hath its being from creation ?" And Crew said. " A water-course is a thing natural, and therefore by un ity i t shall not be discharged," but that these things were said of the ele- ment without reference to the nature of its channel, is evident from Nicholas v. Chamberlain, and Lady Brown's case, in which the ease- ment was not lost though the water was conveyed through leaden pipes. The sum of the matter in regard to disposition by the act of an owner of two tenements, is thus condensed in Gale and Whatley's Law of Easements, 52 : "It is true that, st rictly speaking, a man cann ot s ubject one part of his property to another by an easement for no man can have an easement in his own property , but he obtains the same object by the exercise of another right, tjte general right of proper ty; but he has not the less thereby altered the quality of the two parts of his heritage ; and if, after the annexation of peculiar qualities, he al ien o ne part of his heritage, it seems but reasonable, if the alterations thu s made are palpable and manifest, that a purchaser should take the lan d b urthened or benefited, as the case may be, by the qualities whichj ii£ previous owner had undoubtedly the right to attach to it ." Th'^-^a^e^ ment in the case at bar was palpable and permanent; and the defend-) I4f JU..»< t Street \3yvwj^^!^ 504 ,'ATIVE TIflLES (Part 2 ant was not at liberty to disturb it. As the exceptions to evidence have not been separately argued, it is unnecessary to examine them in detail. Judgment reversed, and a venire facias de novo awarded.^^ Rogers and Coulter, JJ., dissented. , IMITCHELL V. SEIPEL. (Court of Appeals of Maryland, 1879. 53 Md. 251, 36 Am. Rep. 404.) - Miller, J.^^ This action was brought in December, 1878, by the a ppellee a g ainst the appell ant to recover damages for clo sing and ob- s tructing an alley between two houses then separately owned by^tj ^e r espective parties . The case presents an important and interesting question respecting the law of easements. The facts necessary to be stated, and about which there Is no dispute are these : In the year 1839, D aniel Collins became the owner under a l ease for ninety-nine years renewable forever of a lot of ground in the City of Baltimor e, front ing thirty feet on West street, and extending back eighty ieet to Gould lane, a public alley twenty leet wide. Th e l ot was then v acant, but soon after his purchase Collins erected thereo n two brick houses trontmg on West street. These houses were built u ■ about the same time, the first having a front of fifteen feet, and the second a front in the lower story of twelve feet and six inches, and in the upper stories of fifteen feet, thus l eaving a n al ley of two feet and six inches between them:, covered by the joists which supported the second floor of the second house. These joists projected over the alley and into the adjoining wall of the first house. The alley thus covered was open to the street, and exten ded b ack between the houses about thirty fe et. At its inner terminus tw o gates_jixi£_plac£d, which opened respectively into the rear premises and yards of each house, and it was used by the occupants of each _as a common passageway to and from the street. Each house had, as usual, a front door opening upon the street, and from the end of the alley a fence was built which extended back to Gould lane, and divided the lot into two parts, giving to each a width of fifteen feet. During his life. Collins continued the owner of the w^hole property and occu - pied one of the houses . After his death his widow became the owner under his will, and so continued until the year 1865, when by an order 11 Cihak V. Klokr. 117 111. 643, 7 X. E. Ill (1SS6) (hut cf. Povi-ers v. Heffernan, 233 111. 597, 84 N. E. 661. 16 L. R. A. (N. ?;.) 523, 122 Am. St. Rep. 109 (1908) ; Znamauacek v. Jelinek, 69 Neb. 110. 95 N. W. 2S, 111 Am. St. Rep. 533 (190:1); Dunklee v. Ry. Co.. 24 N. H. 489 (1852); Kelly v. Dunning, 43 N. J. Eq. 62, 10 Atl. 276 (1887); Lampnian v. Milks. 21 N. Y. .505 (1860), overruled by Wells V. (Jarbutt, 132 N. Y. 430, 30 N. E. 978 (1892) ; Harwood v. Benton, 32 Vt 724 (1860), but see Howley v. Chaffee, 8S Vt. 4t;8. 93 Atl. 120 (1915), repudiating illctuni in Ilarwood Case ; Bennett v. Booth, 70 W. Va. 264, 73 S. E. 909, 39 L. R. A. (N. S.) 618 (1912), accord. 12 The statement of facts and a portion of the opinion are omitted. Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 505 eLr'f^ ^(pd*^^^^-^ of the Orphan's Court, and in pursuance of a power contained in the will, the ex ecutor of Collins sold and conveyed the entire property to G eorge T. Waters. While the un ity of posses sion thus continued, it is very clear no ea se- ment in respect to this alley existed. A party cannot have an easement in his own land, inasmuch as all the uses of an easement are fully com- prehended in his general right of ownership. Oliver v. Hook, 47 Md. ^^^ 308. B ut this unity of ownership was severed on t he Rth of Tune. C^^^^'J 1865, bv Waters the owner, who on that day sold and conveyed the 3?^ -^^«^t/- second house and lot to George W. Chandler, from who' T^ ^-^t^, flpfpnrl- ant^ thr P-Ugh several mesne conveyances derived his title to the same . This conveyance was an absolute and u nqualified grant , de scribing th e property by metes and bounds, which included the whole of this all ev. and contamed n ^^serT^j^jyj^ of the right to use the same for the bene - fit of the hnnsT'anrHn^^^ed hv the grpntnr Waters retained ownership of the first house and lot until the 29th of July, 1868, when • ^z / he s old and conveyed the same to the plaintiff by a similar g-rnnt. which jA^r^-^-t^ ^ e mbraced no part of the alley . The defendant obtained his title to the — ^v-*,-*.-*-*^ second house and lot, (as before stated by mesne conveyances from ^ . Chandler, the first grantee thereof,) in October, 1874, and shortly {/^t^ ^>* <^^^ before this suit was brought, p revented the plaintiff from using th e ^y a lley, by placing upon it buildings and other obstructions . There is no pretence that the plaintiff had acquired a prescriptive right to use the alley, nor is the case complicated by any easements of drainage or sewerage. There are no pi pe.-^ nr dra ins, either underground or other- wise, from one house to the other, and thence to a common outlet, nor does the surface drainage pass through the alley. The proof shows that the natural flow of surface water, and that from the hydrants on both premises is in the opposite direction, towards and to Gould lane, t/uf^ A CAyvy The alley_ was therefore simply ^ JSSSu m^^^'^^ "^-^ffi^^^ way . Without f ^j\ doubt it was open and a pparent , and was made and designed by Collins, \kA^\j AXJt;^* for the comm on use an d benefi t_aLl)nth houses, and was in fact so y used by the occupants of both, until obstructed by the defendant, but it is equally cl ear that Collins and those who succeeded him in the .own- e rship of both could have closed it, and re-arranged the pr ^riises.^ pleasure. _ The real question in the case then is : l^oes the la\ attach to the unqualified grant in 1865, from Waters to Chandler, of tNe sec- ond house and lot, by metes and bounds, which include the whole of this alley, an i m.plied reservation of the use of it for the be nefit of the hou^e_and p remises retained by the grant or? Upon this point, our investigations have led us to an examination of the large number of authorities cited by counsel, as well as many others, and upon no question have we found so great a contrariety of judicial opinions and dicta, if not of actual decisions. * * * In short, after a careful examination of the numerous authorities in this country to which our attention has been called, w e have foun d but one prominent decision by a Court of last resort, in which the doc- 506 DERIVATIVE TITLES (Part 2 t rine of implied r^asrvation in a case analogous to the one be fore us has been sustaine d, where the facts were such as fairly to present the question for determination. That is the case of Se ibert v. Leva n. 8 Pa. 383, 49 Am. Dec. 525, in which the opinion of the Court sustaining the doctrine was delivered by Gibson, Ch. J., in his usual forcible and vigorous style. Two, however, of the five Judges dissented, and in the course of his opinion the Chief Justice was obliged to set aside the opposing authorities of Burr v. Mills, 21 Wend. (N. Y.) 292, and Preble v. Reed, 17 Me. 175. A gainst this case may be placed tlie d gci- s ipn in Carbrev v. Willis. 7 Allen CMass.^ 364. 83 Am. Dec. 688, (where also tlie facts presented tlie question,) in which it was said !by the Supreme Court of Massachusetts : "B ut where there is a gra nt o f land by inetes and bounds without express reservation, and with ful l covenants of warranty against encumbrances, we think there is no j ust reason for holding that there can be any reservation by implic a- tj on, unless the easement is strictly one of necessity. Where the ease- ment is only one of existing u se and g reat convenien ce, but for which a substitute can be furnished by reaso nable labor and expense, th e gran- tor m ay certainly cut himself off from it by his deed, if such is t he i ntention Q f_tli£_parties. And it is difficult to see how such an inten- tion could be more clearly and distinctly intimated than by such a deed and warranty." I n a subsequent case in the same State. (Rand all v. McLaughlin, 10 Allen [IMass.l 366.) notice is taken of the fact that t he a uthority of Pyer v. Carter [1 H. & N. 916] had then recently be en w diolly denied by the Chancellor of Englan d, in the opinion given in Suffield V. Brown [4 De G., J. & S. 185], which, says the Court, "con- tains an elaborate review of the whole doctrine, resulting in conclusions substantially like those to which we came in Carbrey v. Willis." But the decision of our predecessors in McTavish v. Carroll, 7 Md. 352, 61 Am. Dec. 353, has been pressed upon our attention by the appellee's counsel. That was a case peculiar in its facts and circum- stances. A father who owned a large tract of land on which there was a mill, mill-dam, race and roadway for repairing it, conveyed by a voluntary deed of gift, the portion on which the dam, race and road were situated, to his daughter without reserv'ation, and subsequently by a like deed, conveyed the portion on which the mill was located to his son, and in both deeds reserved a Hfe estate to himself. The Cou rt h eld that the grantee of the portion on which the mill was situated, wa s e ntitled to the use of the dam, race and road upon the principle of leg al necess ity, but also adverted to the fact as distinguishing that case from the authorities there cited, that the two deeds gave the grantees the right of possession at the same time, viz. ; upon the death of the gran- tor, he having reserved to himself a life estate in both parcels of land. • There was in fact, therefore, n o antecedence of title of one grantee to t he oth^ r^ and in view of the authorities to which we have referred, the decision of that case might well have been rested on that point alone. But it was in other respects materially dift"erent from tlie present case, Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 507 and cannot control its decision. Neither in that case nor in that of Oliver v. Hook, 47 Md. 301, were the views of Gale on Easements, adopted further than in reference to implied grants, and in the latter case, it was h eld upon abundant authority, that even the doctrine of i mplied grants had no application to the case of an ordinary, open a nd unenclosed way, not being at the time of the grant an existing ea se- men t. Finding then no binding decision of this Court, and no decided pre- ponderance of authority in this country, to prevent us from following the law as it has recently been settled by the decisions in England, and being satisfied the distinction so clearly drawn in those decisions be- tween what has been called an implied gran t, and what has been attempted to be established under the name of a n implied reservatio n, is no t only founded in reason, but has existed almost as far back as the l aw upon the subject can be traced, we shall aPDly it to the case be- fore us. It rer nains then to ascertain whether this alley is a way of necessity , s o as to fall within the exception to the second proposition stat ed in Wheeldon v. Burrows. Among the cases coming under this exception, reference may be made to Pinnington v. Galland, 9 Excheq. 1, and Davies v. Sear, Law Rep. 7 Eq. 427. In those cases the ways in ques- tion were ways of necessity, and the decisions went upon that ground. B ut we are all clearly of opinion this allev is not such a way . We adopt as entirely applicable to the present case, what was said in Dodd v. Burchell, 1 Hurl. & Colt, 11-3, by Wilde, B., viz., "It appears at the time of the grant in respect of which the right of way is claimed, there was a way from the house into the garden, and that way now exists. But it is said the way now claimed is more convenient than the other. Then comes the question whether the plaintiff can claim it as a way of necessity, on account of its great superiority over the other way. It s eems to me that it would be most dangerous to hold, that where a dee d i s silent as to any reservation of a way, the one that is more convenien t t o use than another way, must exist as a way of necessj tx.. Ther e is n o foundation whatever for such a doctrine ." When the deed of 1865 from Waters to Chandler was executed, access to the yard and kitchen of the house retained by the grantor could be had, no t only thro ugh th e front door of the house, b ut from Gould lane in the rear. Such public lanes or alleys are to be found in almost every part of the City of Baltimore, and w ere made for the very purpose of afford iiig_a£cess t o yards and kitchens which could not otherwise be reached sav e t hrough the front doors of the houses. Most of the dwellings in that city have such alleys in the rear, and no entrance from the front ex- cept a door which opens into a hall or front room. It is true the proof shows there was a brick stable on the plaintiff's lot fronting on Gould lane, but it was built by the plaintiff himself, and not until after the year 1872. I f this obstructed access from Gould lane, it was the plain - t ift"'s own fault. He certainly could not by his own act, without co n- 508 DERIVATIVE TITLES (Part 2 sent and against the rights of the defendant, convert this alley from a way of convenience to a way of necessity . Whether it is a way of necessity or not, must depend upon the state of things existing at the date of the deed of 1865, and not with reference to the changes subse- quently made by the plaintiff on his own premises. At that time the a lley was, as it is now, useful and convenient, but it was not what th e lg. w regards as a way of necessity . But it has been further argued, there ought to be an implied reserva- tion of this alley, because that part of the house granted by the deed of 1865, which is above the alley, is supported by the wall of the house retained by the grantor. The c ontention on this point i'^, that ihe a lley and this support afforded the granted house make a case of recipr ocal easements . But we do not see how the fact, that there may be an im- plied grant of this easement or right of support, can be held to take from the grantee the ground used for the alley, which was expressly granted to him without reservation. T he two are not necessarily ^r i nseparably connected . The case is not like that of Richards v. Rose, 9 Excheq., 218, where a block of houses on a plot of ground were so built together by the same owner as necessarily to require mutual sup- port. In that case it was held that there was, either by a presumed grant or by a presumed reservation, a right to such rhutual 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 consequent- ly the same mutual dependence, of one house upon its neighbor's still remains. This furnishes another instance of an easement of necessity within the exception to the general rule forbidding implied reserva- tions. The present case, however, is quite different. It does not come up to that case, nor does it touch the cases or the law of party walls, nor even that of an alley situated and constructed in the manner de- scribed in the case of Dowling v. Hennings, 20 Md. 179, 83 Am. Dec. 545. ■ It follows that there was error in granting the instruction given by the Court, and for this t he judgment must be reverse d. The Court, however, was clearly right in excluding, at the instance of the defend- ant, th e^ agreement, under se al, between Chandler and Waters, of the 8th of June, 1865, which professes to gra nt the common use of this alley. That instrument was never recorde d, and was not embodied in or referred to by the deed of the same date. It c an have no effect i n d etermining the construction or operation of that deed, nor can it . in a ny wise affect the rights of the parties to this su it. It, therefore, plainly appears, from the record before us, t hat the plaintiff" has n o g round of action, on account of the obstruction complained of, and i t he nce becom e s the duty of this Court not to award a new tria l. ""Judgment reversed, and new trial refused. Ch.4) CREATION OF EASEMENTS BY IMPLICATION 509 MANCUSO V. RIDDLEMOSER CO. OF BALTIMORE CITY. (Court of Appeals of Maryland, 1911. 117 Md. 1914A, 84.) 53, 82 Atl. 1051, Ann. Cas. Urner, J.^^ The aroell pg corporation is the owner of a six-sto ry i ndustrial building- in Baltimore Ci ty, fro nting on the south side o f F ayette street and abutting in the rear on an alley known as Bank lane. On July 27th, 1908, the company l eased to the appe ll ants a ware- room on the first floor of the building together with a pa rt of t he basement ly ing immediately north of the alley and south of a designat- ed wall. The le ase was for a term of two year s. Sometime during the first year the tenants, in consideration of a reduction in the rent, surrendered to the landlord the north half, approximately, of the base- ment area covered by the lease, and th e new division line was in di- c ated by a wire screen partition then constructed . On February 11th, 1910, the parties executed a new agreement for the leasing to the ap- pellants of tlie room and cellar space they then occupied for the term of five years, beginning September 1st, 1910, wi th an option to the l essee to renew for successive term s. In each of the leases it w as s tipulated that the premises should be used only as a barber shop an d b athing establishmen t and for cert ain incidental pu rposes, and there was a co venant that the landlord should supply all hot and cold v /a- t er and all electric curren t and heat reasonably required by the ten - ants in the prosecution of their busine ss. The section of basement leased to the appellants appears to have been mainly u st^d by th-r^m f or access to a toilet and for the storage of empty boxe s. In the base- ment retained by the landlord, and partially under the wareroom ten- anted by the appellants, is located the st eam and electric pl ant by which the appellee's building is supphed with heat, light and power. There are nu merous lessees who are dependent upon this serv ice. The en- tire second floor is occupied by a business college, and the floors above by various manufacturing industries, while the first floor ac- commodates several business enterprises in addition to that conducted by the appellants. At the rear of the basement leased to the appellants is a doorw ay five feet wide opening into Bank lane. It is equipped with outer d oors of iron, with in ner doors of glas s, and with inte rmediate, doors of w ire screen . Until a short time before the filing of the present bill this doorway had been u sed continuously by the employees of^the appelk e i n going to and from the steam and electric plant a nd in moving sup- pnes and repairs, and the iron and glass doors^ had been kept open in order to aid ventilation and reduce the temperature. There were openings provided for the same purposes through the w^all and screen partition located between the plant and the rear portion of the base- ment. It appears without dispute that the temperature of the base- Afeygr/g fSAmf< A 13 A portion of the opinion is omitted. 510 DERIVATIVE TITLES (Part 2 ment, with the Bank lane doors open, is usually about one hun dred a nd eight degrees in winte r and sometimes as high as one Iru ndred a nd forty-five degrees in summer , and that when these doors are closed, at any season of the year, the thermometer rises ab out forty degr ees. This is shown by the evidence to be considerably above the tempera- ture at which the men can remain at work and the machinery be op- erated with safety. The t estimony is that when the heat reaches o ne h undred and fortv-five or one hundred and fiftv degrees there is dan - ger that the wiring and insulation on the electric generators will ^ be destroved. This would necessarily cause a stoppage of the plant and of all the machinery which it supplies with power and would require heavy expenditures for repairs. It is pr oven also that in the eve nt o f a sudden discharge of steam, which may result from the burstin g of a pipe or the blowing out of a gasket, the only way of escape for t lie employees in the basement would be through the door open ing on Bank lane . There is a narrow passage leading by the boiler and fire pit to a stairway in the front of the building, but an accident of the character described, which has already once occurred, would cut ofif this means of exit. The c onditions we have indicated were existing and apparent w hen t he appellants entered into possession under their first leas e. They knew that the employees in charge of tlie steam and electric plant were dail y using and d epending upon the alley doorway for ingress and egress. They must have been aware also that the system of ven- tilation which the appellees had provided for the basement of their building co uld not be effective if the door in question were kep tclosed. They m.ade no objection for nearly three years to the use of the door- way by the appellees for the purposes we have mentioned, and it was n ot until aft er this Inng pe riod of acquiescence that tliey locked^ the door and asserted that its exclusive control belonged to them unde r t heir lease. They assumed this attitude for the first time early in ]\Iarch, 1911, and when they then closed and fastened the door the temperature of the basement rose to about one hundred and forty de- grees, and according to the testimony of the engineer in charge "it absolutely got dangerous to run the machines, and it was dan&er ous n ot only to the machines but to the help, and you simply suffocated i n t here, and if anything were to happen you were caught like rats i n a trap and couldn't get out ." After this condition had existed for about two weeks the City Inspector of Buildings notified both the ap- pellants and appellees "t o keep free and open the rear exits of th e heating plant in the bpilding, as it appears they are now locked a nd bolted . It is a men ace to the me n operating the plant and must be done immediately." This was followed a few days later by the pres- ent b ill for an injunction to restrain the appellants from keeping_ jlie doorway closed A preliminary writ was granted, and upon final hear- ^^^.f^ ing the injunction was made perpetual. In support of their position the appellants rely upon the fact that ^ Ch.4) CREATION OF EASEMENTS BY IMPLICATION t he lease under which they hold contains no express re.serv^ _g j;i to th e appellee of any right to fhe use of the; doorway now in dispute , and they invoke the well settled principle t hat easemen t by implied reserva- tion will not be sustained excep t in cases of strict necess ity. Jay v. Michael, 92 Md. 210, 48 Atl. 61 ; Burns v. Gallaglii7r62 Md. 472; Mitchell V. Seipel, 53 Md. 269, 36 Am. Rep. 404. It is insisted that the conditions shown by the record are not such as to make the present case an exception to the general rule. T he contention is that the us e b y the appellee of the doorw ay in cont roversy is not necessary, w ith- i n the meaning of the rule staTed . because it is possible that other means of access and ventilation may be provided through other por- tions of the basement. The evidence, however, does not support this theory. It is shown by the proof tliat no adequate provision could b e made in substitution for the use of the opening into the alley withou t i njuriously encroaching upon the rights of other tenants in possess ion of adjacent sub-divisions of the basement under prior leases. When the appellants acquired their leasehold interest, the doorway on Bank lane was the o nly way under the control of the appellees by whic h a draft of air could be obtained for the area occupied by the steam and e lectric plant an d b y which a safe exit could be secured for the en gi- n eer and fireman . This doorway was then, and thereafter continued to be, in actual a nd nec essary use f or these vitally important purposes. Under such circumstances it is c lear that a reservation to the appellee o f the right to such user must have been understood and intendedJ jy b oth the parties to the lease. In tlie decisions we have cited it was held that:QTt is only in cases of strictest necessity, and where it would not be reasonable to suppose that the parties intended the contrary, that the principle of i mplied reservatio n can be invoked." I In the case before us it would be altogether unreasonable to suppose that there was any intention on the part of the lessor company or of the lessees that the former should surrender the only available means of insur- ing the safety of the employees in charge of the plant in the basement and of obtaining the ventilation required for its satisfactory operation. I n our judgment, under the conditions presented in this case, the u se of the rear doorway in connection with the steam and electric pla nt must be held to be one of strict a nd absdute necessity . * * * Decree affirmed, with costs. 511 and^tt/**^ • BROWN V. FULLER. (Supreme Court of MieMgan, 1911. 165 I^.Iicli. 162, ir>0 N. W. 621, 33 L. R. A. [N. S.] 459, Ann. Cas. 1912C, 853.) Complainant and defendants were, r espectively, owners of adjo in- i ng^ lots fa cing Burdick street, in the city of Kalamazoo. Upon com- plainant's lot, which was 22 feet wide and about 230 feet deep, ex- tending to Farmer's alley, there had stood for many years a three- '^ liJyJL^^fU I M 512 • DERIVATIVE TITLES (Part 2 story brick block, running east from Burdick street about 90 feet. T o the east and in tlie rear of said brick building, a one-story b uild- i ng extended eastward to the alley, about 130 feet. The sewage_jrom t he brick block was conducted under the one-story building to a latera l s ewer in Farmer's afley ! The roof drainage of the block was carried onto the roof of the one-story building and thence to the alley. De- f endants desired to erect a theater, and, their own lot not affordi ng suthcient'area for their purpose, negotiated with complainant for tli e purchase of tlie rear or easterly 130 feet of her lot. On November 9, 1908, a w arranty deed of sa id^ parcel w ith full covenants aga inst incumbrances was exe cuted by complainant to defendants for the con- sideration of $5,000. This deed contains the following agreement: "It is understood and agreed between the parties hereto, as a part of the consideration of this deed, that the second parties are to build a wall on tlie west side of the land above conveyed, about 16 inches thick and about 40 feet in height, and that the party of the first part is to own said wall jointly with the second parties, and it is to be used as a party wall. The center of the said wall to be on tlie west line of the land above conveyed," De fendants, after said purchase was complefedj proceeded to tea r down the one-story building which stood on the lot conveye d, and c ommenced excavation for the basement under the proposed theate r. In excavating, the sewer f rom complainant's block was uncovered, and as defendants desired to make a b asement nine feet deep, w hich was three or four feet deeper than the sewer, the se wer was cut, and th e e xcavation proceede d. In the negotiations complainant did not ad- vise defendants of the existence of the sewer, and t he record does n ot s how that they or either of them knew it was the re. After the sewer was cut, complainant filed her bill of complaint, praying for a m andatory injunction compelling defendants to res to.re t he sewer connection and roof drain-pipe, an d f or a permanent in- j unction restraining defendants from breaking or interfering with tl ie sewer and from interferin g with the passage of tlie roof drainage ov er said lo t. A preliminary mandatory injunction was granted ex parte which the court refused, on motion, to vacate. T his injunctio n was gr anted on January 5, 1909. The cause came on to be heard on the merits October 17, 1909. In 'the meantime, d efendants had comple ted t he theater building , and, i n obedience to the mandate of the coy rt, ha d taken care of the complainant's sewage and roof drainage, a t c onsiderable expense . Upon final hearing, tlie preliminary injunction was made permanent. The dec ree further provides tliat the expen se o f maintenance and repairs of the sewerage connection and tlie sto rm p ipe shall be borne equally by the partie s. From this decree defend- ants appeal. Brooke, J. (after stating the facts). The sole question for deter- ^/'^mination here is w hether or not there is an ii iiplied reservatio n of an /^"^ Va sement over the land sold by complainant to defendants. It is said Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 513 that in reaching the conclusion he did, the learned circuit judge re- lied upon the case of Smith v. Dresselhouse, 152 Mich. 451, 116 N. W. 387. An examination of the facts in that case will at once demon- strate that it differs vitally and fundamentally from the case here con- sidered. There the owner of two adjoining tenements, located upon either side of a river, upon each of which stood a mill, sold one of the tenements to the complainant in that case, and, as appurtenant to the tenement conveyed, sold the water rights. The owner and his grantees continued to operate the mill on the other side of the river, using the water for that purpose. Complainant filed his bill to enjoin the use of the water. This court held tliat, as to the water, complain- ant was a tenant in common with the owner of the adjoining tenement on the opposite bank of the stream. Mr. Justice Ostrander, in stat- ing the general rule, there said : "I t is a general rule of the law of easements that where the own er o f two tenements sells one of them, the purchaser takes the portio n sold with all the benefits and burdens which appear at the time of the s ale to belong to it as between it and tHe property which the vendo r retains." The matter under consideration was a grant, no t a reservatio n, and in discussing the effect of the grant he further said: "We should not expect that a grant of the land on one side of the river only, the grantor retaining the land and mill on the other side, and using the water there appurtenant, conveyed an exclusive right to the entire water power. The terms of the grant to complainant are express and seem to be unambiguous. The land is described by metes and bounds. One boundary is the center of the main channel of the river. The mill tract and the mill are within the boundaries. It is the mill privilege and water power 'there situate,' i. e., appurtenant to the land conveyed, which is deeded, with the right to flow lands and to *use and make usd of the water power there situated.' " Assuming, therefore, that tlie rule was correctly stated, the case was determined, not by any application of the rule, but by a construction of the terms of the grant. Nor is it applicable to tlie case under con- sideration. Here, the sewer was under ground. It was not apparent, and defendants are not shown to have had any knowledge of its ex- istence under the land purchased by them. But, if they had such knowledge, that fact would not be controlling, because complaina nt knew that tlie use to which this property was to be devoted wou ld unco ver the sewer and, as it existe d, destroy it. Even if it could be said that a grantor under any circumstances could by implication reserve the right to continue an underground sewer in the premises granted, which we do not determine, it would not aid complainant. Here, it is sought by implication to reserve the right t o h ave the existing sewer destroyed and rebuilt in th e air througkJihe b asement of the tenement to be erected upon the demis ed lands. Sim- Aig.Pbop.— 33 514 DERIVATIVE TITLES (Part 2 ply to state such a proposition v^ould seem to be a sufficien t answer. The rule apphcable to implied reservations of easements is stated in 14 Cyc, p. 1171, as follows: "As regards i mplied reservation s of easements, the matter stands on principle in a position very different from implied grants. If the g rantor intends to reserve any right over the tenement granted, it is h is duty to reserve it expresslv in tlie grant . To say that a grantor re- serves to himself in entirety that which may be beneficial to him, but which may be most injurious to his grantee, is quite contrary to the pr inciple upon which an implied grant depends, which is that a gra ntor s hall not derogate from or render less effectual his grant or rende r t hat which he has granted less beneficial to his grantee . (^Accordingly, here there is a gra nt of land w ith full covenants of warrant y wjth- express reservation of easements, the best considered cases hold f^^""^"^ jA^*^^ t hat there can be no reservation by implication, unless the easement is ^ ^^^ ^ ^s trictly one of necessity. " "S ^ ^^^sesare cited from many jurisdictions in support of this statement /■-I . jy . of principle, and we think it is in accord with the weight of mode rn ~fA/9^*^^l a uthority . The great weight of authority touching the question, with *^^ ' ^, reference to subterranean drainage, is to the effect that, if tlie ow ner ff^i \ o f the land under which there is such a drain conveys a part of it^ mth ixr***^ "T^£>^' f "l^ covenants of warranty without reference to the drain, no easem ent [ CAt^'^ is reserv ed. !/«' The grantor and his privies, under such circumstances, are estopped to claim any interest in the premises so granted. To permit suc h a c laim would be to allow the grantor to derogate from the terms o f his grant which, by every applicable principle, is forbidden . The au- thorities upon the subject are collected and discussed in 10 Am. & Eng. Enc. Law (2d Ed.) p. 42. See, also, 14 Cyc. p. 1169, and cases there cited, and Farnham on Waters & Water Rights, vol. 3, pp. 2454, 2455. In the recent case of Covell v. Bright, 157 Mich. 419, 122 N. W. 101, which upon principle much resembles the case at bar, we said: "T o entitle the complainant to a decree, the burden was upon him t o establish tha t the servitude was appa rent, cont i jiuous, and strictly n ecess^rx.to the enjoyment of nis lands citing cases. In New Jersey, a different doctrine for a long time obtained, based upon the ruling in the celebrated case of Pyer v. Carter, 1 Hurlst. & N. 916, and those cases which followed the rule there laid down. _Pys.r v . Carter has u- frequently been severely cri tic ised, and wa^; finally dis- tinctlx--QY£rrule_d_iii_Eiigland. The case of Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182, contains a review of the English and American cases, questions the soundness of the doctrine announced by that court in its earlier decisions, and s eems to recognize the distinction betwee n a n implied p^rant of an easement and an jmplied reservation. While it is apparent from the record that it will be somewhat ex- Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 515 pensive to dis pose of the sewage fr om complainant's building otherwise 'jf^B*. '^ than over deiendants' land, i t by no means appears that it is imp os- 7^1/^^^^'^ s ible to do so. Th ere is not made out, therefore, a case of strict nec es- ^j( sjty, . ' The case presents this alternative : Either complainant at some, per- haps considerable, expense to herself, must take care of her own sewage and storm waters, or the defendants who purchased and paid for a tenement warranted to be free from all incumbrances, must take that tenement charged in perpetuity with an incumbrance of a very serious character and one which is liable, through the breaking or stoppage of the drain, to cause serious annoyance and damage. W hy should defendants be compelled to accept this burden ? Why should they be charged in perpetuity with the duty of defraying one- • half of the expense of maintaining complainant's sewer as well as the cost of its original construction? So far as the record discloses, they have done no act which was not fully warranted by the terms of the grant to them. Th ev have sought to make use of the granted te ne- ment in a lawful manner and in a manner and for a purpose know n' bv cnmplninant b efore the sa le. Touching the disposition of the storm waters, it is clear that, by the sale of the one-story building upon which it had theretofore been carried to the alley, with t he knowledge t hat said building was to be immediately demolished, com plainant must have known that su ch drainage would be interrupted. The very terms of her written con- tract show this, because s he stipulated for the erection of a brick wall betw een the premises granted and those retained. This wall was to be 16 inches thick and about 40 feet in height. It is obvious that she could not have contemplated the carrying of her roof waters over that wall. At that moment it was apparent that some new arrangement must be made to care for this water. D^efendants did not contract to b uild a new drain and carry it across their own property to the alley . nor did they agree to construct a new sewer, and we know of no_E rin- c iple of equity which would compel th.em to do so . The decree of the court below is reversed , and the bill of complain t is dismissed, an d, inasmuch as the record discloses that defendants have expended certain sums of money in obedience to the mandate of the court in caring for complainant's sewage and water, t he record wi ll be remandpH fnr t hf> pnrpn<;p nf aqr ertaining the exact f^mnnnf of f^nrh e xpenditure which, when ascertained, shall be decreed to be a debt du e f rom complainant to defendants for the collection of which execution , OsTRANDER, C. J., and H^OKERfM^xv^Y^BSiCSid^T^ JJ., 'yCM C^^^' concurred with Brooke, J. Bird, J." (dissenting). I am of the opinion tliat the trial court readied a right conclusion upon the law and facts in this case and that it migh\ to be- affirmed by this court. In the case of Smith v. Dresselhouse, 152 Mich. 451, 116 N. W. 387, \{jJiA, A^ ^ aK 0^ JU\i^,^\A£iu{_^ ^ ' 516 DERIVATIVE TITLES (Part 2 Mr. Justice Ostrander, discussing the doctrine of implied reservation s, quoted, with approval, the following general rule of easements : * 'I t is a general rule of the law of easements that where the owner o f two tenements sells one of them, the purchaser takes the portion so ld witli all the benefits and burdens which appear at the time of the sa le t o belong to it as between it and the propertv which the vendor retains. Seymour v. Lewis, 13 N. J. Eq. 439, 78 Am. Dec. 108. Kvery grant of a thing naturally imports a grant of it as it actually exists. United States V. Appleton, 1 Sumn. 502, Fed. Cas. No. 14,463." Mr. Justice Selden, in speaking of this rule, said: "T his is not a rule for the benefit of purchasers onlv . but is entirel y reciprocal. Hence, if. instead of a benefit conferred, a burden has be en ir nposed upon the portion sold, the purchaser. provideH the marks^ of t his burden are open and visible, takes the property with the servitu de ujpon it." Lampman v. Milks, 21 N. Y. 505. If we are to take the foregoing rule as our guide in determining this case, I am very firm in the conviction that defendants took the deed of the premises burdened with the sewer. In arriving at this conclusion, the distinction made by Mr. Justice Brooke, in his opinion, between im- plied grants and i mplied reserva tions, has not been overlooked. Al- t hough there is a difiference of opmion in the cases as to the degree of necessity required to create them, the better rule seems to be, andj lie one supported by the weight of authority is, that a reasonable necessit y is sufiicient to raise an impliedgi^nt : whereas, a strict necessity is n ee- essary to raise an implied reservation^ This court has adopted the strict necessity rule i^Tovell v. Ei-igritV157 Mich. 419, 122 N. W. 101. T he question therefore arises whether the rirrnmstances of this ca se a re such as to bring it within the rule of strict necessity. A study of the record has persuaded me that they do. To establish her case it was n ecessary for complainant to show that the easement claimed j aas apparent, continuous, an d s trictly necessary . "^ vVas the easement apparent .'' Apparent easements" have been de- ^ fined to be t hose the existence of which appears from the constru c- '^'''^"'*''**^ I t ion or condition of one of the tenements so as to be capable of bei ng ^IxyytA.'t'vS'K . \s een or known on inspection . 10 Am. & Eng. Enc. Law (2d Ed.) p. v 405. To this class of easements belongs the b ed of a running stre am. r) an o verhanging roof , a pipe for carrying wate r, a drain, o r a sewer . Fetters v. Humphreys, 18 N. J. Eq. 262. And the mere fact that a drain or aqueduct, as the case may be, is concea led fr om casual vision, do es not preven t it from being "apparent" in the sense in which that word is used in that connection. Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094. Defendant testified that he did not know that the sewer extended through the premises conveyed to him. If he had no actual knowledge, he djd have constructive knowledge o f that fac t. He had owned for upwards of 25 years premises side by side with the premises in ques- tion, with like improvements. He knew there was a sewer which served Ch. 4) CREATION OF BASEMENTS BY IMPLICATION 51T complainant's premises because he had the front portion of them under lease nearly two years before he purchased the rear portion, and at the time there were five water-closets in the portion he had under lease. He knew that the sewer from his own premises was discharged into the Farmer's alley sewer, and must have known that there was no other sewer into which it could be discharged and, if he did, it would not be unreasonable to assume that he knew the same thing was true of com- plainant's premises. On one occasion, prior to his purchase, a portio n of the floor in the rear part was taken up, which disclosed the sewe r, and defendant was present at that time. Defendant had, before pur- chasing the property, talked and planned with complainant's husband about building a theater where he has since erected one, and, in doing so, un doubtedly considered the question of plumbing among other que s- t ions of construction and arrangement . A knowledge of these facts was sufflcient in the law to p ut defendant upon inqui ry and to charg e him with notice tha t the sewer traversed that portion of the premises purchased by him. Is the easement continuous? The sewer had been in existence for -J ^ 20 years, w as of a pe rmanent nature, w as i n use at the time, and was s usceptiSTe of being used and enjoyed without making an entry on de- f endant's premises, except for the purpose of repair . These facts would clearly bring it within the definition of a "continuous easement." Larsen v. Peterson, supra. '♦.^y I s the easement strictlv necessary to the enjoyment of complainant's ^ Y premises? The se wer in Farmer's alley is the only one ay pil^blp fnr •****» . her use. The city engineer testified that one might be constructed to l^^ \. De Visser alley, but that it wo uld be impracticable fo r the reason that, -^ where it would discharge into that sewer, it would be only 18 inches underground. The topography of that part of the city is such that no other sewer can be constructed which will serve these premises without a p rohibitive expense. A cesspool was suggested by complainant; but the city authorities would not permit it. She th en made an efiiort to b yy the right of her neig[-hbor on the north to go through the parti tion wall and connect with his sewer^ which also discharges into the Far- mer's alley sewer; b ut to this her neighbor would not cons ent. We have then a situation where co mplainant must be permitted to use the s ewer which has served her premises for 20 years, if her building is to h ave any sewer service . If this situation, which nature has so fashion- ed that the sewage can be directed only in the direction of Farmer's alley, does not bring it within the rule of strict necessity, it would, in- deed, be difficult to suggest one. I f greater exigency than here exis ts i s^required before the strict necessity ru le can apply, there would be li ttle use for the existence of the rule, as its use would be so infreq uent a^o render it useless. In my opinion, the trial court found his way to a very equitable ad- justment of the entire matter, and I think his decree should be affirmed. Moors, J., concurred with Bird, J. 518 DERIVATIVE TITLES (Part 2 ««< BUSS V. DYER. (Supreme Judicial Court of Massachusetts, 1878. 125 Mass. 287.) Tort for tearing down, re fuainf^ ^^ ^f^^^uld- Siud preventing the ijj ain- t iff from rebuilding, a chimney, in which the plaintiff claimed an ea se- ment. Writ dated March 16, 1875. Trial in the Superior Court, be- fore Pitman, J., who allowed a bill of exceptions in substance as fol- lows: The plaintiff introduced evidence tending to prove that previously to July 12, 1844, John E. Thay£j:_and Nathani el Thaver biii lt_aj2lork o f five wooden houses on land owned by them on Meridian Street. Ea st Boston : that these houses were then or afterwards numbered from 61 to 69 on said street, inclusive ; th at the chimney in question, at the l ime t lie block was buil t, was p la ced between the houses numbered 63 aj id 65^ but whollv upon the premises of No. 65. for the use of both houses, and was constructed with connection s or s tove-holes f or each house; that on July 12, 1844, the T hayers conveyed by simultaneous cL|^ds ( which contained covenants against all incumh]; g ^ps made or suft'er ed by them) t l ie premises No. 63 to QHver Lewis, and the premises No._6 5 t o Martin Lewis, both deeds describing the premises by metes and bounds ; that by mes ne conveyances the (^i j j ^ iff) became, on Mar ch 5, I b/Jpthe owner of the premises No. 63 : that on November 14, 1874, the chimney in question was t orn down by the ^efgndant, (to wh om t he house No. 65 was conveyed on October 7, 187 4, by the heirs of Martin Lewis .) and was never rebuilt ; and that the defendant pre- vented the plaintiff' from rebuilding, and refused to allow him to re- build it. In none of the deeds or mesne conveyances above ceferj ed t o ; was any specific mention made of any ri^ht to use the chimHeyJ n questio_n _^t hou g [h in each the premises were, ror^veved with "all rio-hts -. e asements, privileges and appurtenances to ^he said land belonging. " The plaintiff' claimed no right to use the chimney by prescription. For the purpose of showing that a right to use the chimney passed by the deed from the Thayers to Oliver Lewis, by implication , as an appurtenance to the house on the premises so conveyed, the plaintiff introduced e vidence tending to show that, at the time Oliver Lew is became the owner of th e pr emises No. 63, a suitable chimney, wh ich would be a substitute for th e chimney in question, could not be bui lt wholly upon his premises at a reasonable j:ost and expense ; but this was contradicted by the defendant. As bearmg upon this question, evidence was introduced by both parties to show what would be the cost and expense of building such a chimney at the tirhe of the trial and at the time when the chimney was torn down. For the purpose of showing that the right to use the chimney in question had not been lost or extinguished, the plaintiff introduced ev - i dence to prove that the chimney and the houses of himself and the defendant were in good condition up to the time when the chimney was Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 519 torn down : that they had not been destroyed by the elements or mere lapse of time; and that they were not in such a condition that they needed to be rebuilt from the bottom; and the defendant introduced evidence to prove the contrary, and that the plaintiff could have built a suitable chimney upon his own estate as a substitute for the one torn down at a very small cost, especially soon after the chimney had been torn down. The plai ntiff asked the judge to rule as follow s: " If the plain tiff ac quired a right to use tlie chimney in quesLiOn-^nder the deed from th e Thayers to Oliver Lewis, such right so acquired was not lost or terminated until both the chimney and the houses of the plaintiff a nd defendant were destroyed by the elements or mere lapse of time, o r w ere in such a condition that they had to be rebuilt from the bot tom." The j udge refused so to rule ; but instructed .the jury that if such a right was acquired by the plaintiff through the deed from the Thayers to OHver Lewis, yet if the chimney at the time it was torn down was unsafe and needed to be rebuilt from the bottom, the defendant had a right to tear it down, and the plaintiff could not recover. No in- structions were given as to whether or not the condition of the houses of the plaintiff and defendant, or either of them, had anything to do with the duration of the alleged easement, or right to use the chimney in question, and the instructions given were objected to only on the ground of that omission. The jury were fully instructed on the other questions of law in the case; and, among other things, were instruc ted » t hat no servitude, as claimed, could be created by implication of l aw l-M*'*'***'''*^ u nless there was a reasonable necessity therefor : a nd that if the pla in-^f^t^^ "jf^ ti ff,' with reasonable labor and expense, could have built a sui table v c himney on his own estate, he rniild nnf rlnim ^ , right to use that u pon t he defendant's premigpc; The jury were further instructed to answer the following questions, and that if the second question was answered in the afifirmatiye they need not answer the third question, but should return a verdict for the defendant: "1. Did the houses now occupied by the parties respec- tively exist upon the estates at the time of the deeds from the Messrs. Thayer? 2. C ould the pininfiff at a rpa^^nnahlp cost have built a sui ta- b le chimney upon his own estat e, as a substitute for the one he claime d t o use on the estate of the defendant ? 3. Was the chimney in question *^ so defective and unsafe as to require the defendant to take it down?" The jury answered the first and second questions in the affirmative; ^ ^ and returned a v erdict for the defendan t. The plaintiff alleged ex- T^Ol 4-*^ ceptions. SouLE, J. The deed of the Thayers, under which the plaintiff claims, was made and delivered when they were owners of the prem- ises of the defendant. It makes no mention of any rights in the chim- ney on the adjoining premises. Their deed of the defendant's premises, given at the same time, contains covenants against incumbrances made or suffered by the grantors, and of warranty against all persons claini- ^iC-^ p^ 520 DERIVATIVE TITLES (Part 2 ing under them. Each deed describes the lot of land conveyed by metes and bounds, without mentioning any buildings. The grantors having built the houses and the chimney, and being owners of both parcels, these covenants are as strong an expression of intention to convey the defendant's premises free of the easement claimed by the plaintiff as covenants of general warranty would have been. The words, "and all rights, easements, privileges and appurtenances to the said land belong- ing," in the deed of the plaintiff's premises, are of no effect to carry the easement in question, because no easement existed, while the fee of oth parcels was held by the same owners. Ammidown v. Granite Bank, 8 Allen, 285. Moreover, the title conveyed by that deed is not older than the title conveyed by the deed of the defendant's premises, which covenants against any incumbrance created by the grantors. __If, th erefore, an easement .to use the chimney was created in favor o f the p remises, of the plaintiff, it was created by implication, as being abso - l utely necessary to the enjoyment of the estate . We are aware that it has been held in some English cases, that a deed of premises carries the right to continue to enjoy, as easements, all privileges or conveniences i n and upon adjoining lands of the grantor, which were apparent, a nd had been used by the grantor in connection with the premises before the conveyance ; t hat the conveyance is a con - veyance of the premises "as they are. " A leading case to this eff'ect is Pyer v. Carter. 1 H. & N. 916. Similar doctrine has been held in New York. Lampman v. Milks, 21 N. Y. 505. We do not regard this as a correct view of the law. I t is a well established and familiar rule that deeds are to he rn n- strued as meaning what the language employed in them imports, ^ nd t hat extrinsic evidence may not be adduced to contradict or affecL iliem. nd it would seem that nothing could be clearer in its meaning than a deed of a lot of land, described by metes and bounds, with covenants of warranty against incumbrances. T he great exception to the app lica- t ion of this rule to the construction of deeds is in the case of ^Y^ ^iJ^ necessity, where, by a fiction of law, there is an implied reserva tion or grant to meet a special emergency, on grounds of public policy, as it has been said, in order that no land should be left inaccessible for pur- poses of cultivation. This fiction has been extended to cases of ease- ments of a different character, where the fact has been established that the easement was necessary to the enjoyment of the estate in favor of which it was claimed, /y^^j^^t^^ I n this Commonwealth, grams by implication are limited to c ases of stricj^ ng( ^^ity. Carbrey v. Willis, 7 Allen, 364, 83 Am. Dec. 688, and cases cited; Randall v. McLaughlin, 10 Allen, 366. The case of Pyer v. Carter was denied by Lord Chancellor Westbury in Suffieli v. Brown, 4 De G., J, & S. 185, w hich has_been since recognized as con- tai ning~the correct d octrine.- Crossley v. Lightowler, L. R. 2 Ch. 478; Watts V. Kelsol^TLTRTa Ch. 166. Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 521 The case seems to have been tried in the Superior Court oti the a s- s umption by both parties that the obstacles, if any, to the erection of a chimney on t he plaintiff's premis es, were the same when the Thay ers co nveyed as when the chimney m question was taken dow n, and the question to the jury, and the instructions, appear to have been framed in accordance with that assumption, and without any objection or sug- gestion to the contrary by the plaintiff. We cannot, therefore, consider the objection now made, for the first time, that the question of neces- sity was to be detennined by the state of things existing when the con- veyance was made by the Thayers, In this view of the case, it . appears that the jury found that the u se o f the chimney was not npreg;sarv to the enjoyment of the premise s owned by the plaintiff. This being so, no easement in ting ( ^ j^ jrpnpv wa^. reserved by implication in the deed to the detendanFs o-ranto?- . and the defend ant, in destroying the chimney, merely exercised a right of own- ership^ ~~ It is unnecessary, therefore, to consider the question raised by the re- fusal to give the instruction asked for by the plaintiff. On the facts found by the jury, no easement in favor of the premises of the plainti ff h aving been created, the ruling as to how such easement could be d e- t ermined, if it existed, became immateria l. . TOOTHE V. BRYCE. (Court of Chancery of New Jersey, 1S92. 50 N. J. Eq. 5S9, 25 Atl. 182.) On o rder_to show cause why an injunction should not issue . Heard upon bill and answer and accompanying affidavits. The complainant, by his bill, se eks to establish and protect his rig ht t o the benefit of a flow of water to his premises fr om the defendant's premises, through t wo several pipes laid underground and forced^ JUC b y two hydraulic rams, situate, with the spring that drives them, on t he defendant's prei-nise.-Y . The facts as they appear in the pleadings and affidavits, or are ad- mitted by the parties, for the purposes of this motion only, are as follows : Before and on the 13th of April, 1892, the defendant w as j4 jJ 6 t he owner of a tract containing about forty-five acres, which compr ised tAVp* • *|*^ b oth tenements, situate in Madison, Morris county. New Jersey, and /l.^-,^ JIt^ on that day" entered into a written contract with the complainant, by 14 Still well V. Foster, 80 Me. 333, 14 Atl. 731 (1S8S), ace. In Bussmeyer v. Jablonsky, 241 Mo. 681, 145 S. W. 772, 39 L. R. A. (N. P.) 549, Ann. Gas. 1913C, 1104 (1912), th e court h elfl that nn p.nspmpnf. fhert;^ plaimed had not hppn pi-e:iti^fl by implied grant, do showing that there was any ''reasonable" aecessity therg - f gr having been niaae, thougn tne evidehce prob;il)iy ^sLablislied that t n e ng nt pinirfied was a nnnvenience. So, also, in ijanatora v. jkoss. Yt3 i\. Jdl. 4V(>, 8fAtL ^ * 936, 42 L. R. A. (N. S.) 629 (1912). oljJ^^^*^ dfc^ 522 DERIVATIVE TITLES (Part 2 which th e defendant, in consideration of $13.000, ag^reed to sell and c onvey to complainant, and complainant agreed to purchase and~pay t hat price for the tract in question , consisting of forty-five acres and twenty-three one-hundredths of an acre, e xcepting thereout ajiouse and HjtA/^ A b arn and lot whereon they stood, containing one acre, the deed of con - ^^^ M^^ veyance to be delivered and the purchase-money paid^ on the la lh-dav tjy/^^^^A, of May, at eleven o'clock in the morning, at a specified place in New iJk ' At the date of the contract there were upon the whole tract tw o \ d wellings, two_barns, and a green or hot-house, a s pnng of water and A^ / t wo hydrauh r rams driven hy it*; water';^ with a pipe leading from each, one to the green-house and one to one of the barns. One dwel l- i ng and one barn and the green-hous e were on the partcontractedjo be conveyed ; t he other dwelling and barn, the spr mg and rams were o n the lot o f one a cre reservedT Included in the sale were a lot of hot-house plants in the hot-house. At and before the date of the contract the water was flowing co n- ti nuously at both the barn and green-house, in the latter of w hirh wprp t he hot-house p lants. The water was discharged at the barn into an open trough from which the cattle and horses drank, and at the green- house into a tank from which it was used in watering the plants. This fl ow was observed by the rnmplainant, and he knew it was due to thej ^c- tjon of a ram (he supposed there was but one) on the lot reserveiL and s uch fl o w formed , in_ co.mpl_ai nantj. mind, a featur e _ q£ _ vaJxi e in the premises. The pipes and flow of water to the barn had existed for several years, but that to the green-house had been in use for less than two years. The ram which supplied it had been in place and use for many years, and carried the water in a pipe along the road in front of the premises in question to a property adjoining it on the other side, which property was sold by the defendant in 1890 to another party, and the flow of water to it was cut oflF and the pipe turned from the road up to this green-house, and was in use there from that time on. The corporate authorities of Madison have recently erected water- works for the use of the town and its inhabitants, but no main has as yet been laid in the street in front of these premises. T he negotiations for the purchase and sale were carried on betw een the complainant in person and an agent of the defendant , and n w as sajdjjy either in their course about th ^ flow nf yater. Such" flow contniuedup to the date of the delivery of the deed. Before ten o'clock on the morning of that day defendant directed his employe e in charg^e of the premises to stop the operation of the rams, and th en proceeded by train to New York to deliver the deed, which was don e about el ey^jiVlnek The man in charge stopped the ram supplying the barn at once, but left the one supplying the green-house running until three o'clock in the afternoon. So that in point of fact the w a- t er was probablv not running to th e barn at the moment the deed w as delivered^but .was.j'jyLOniiig_iQ_Uie_^eer>House. No notice was gi ven Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 523 to the complainant at the delivery of the deed that the flow of the water had been stopped, nor was any mention made of it by either party. Tii e^deed contained the usual verbiage as to appurte nf^"?^.'', inelud- ing "waY a>-WA ters, privileges/' &c. The springs driving the rams are about fifteen feet lower than the barn and green-house, so that t he water would not run naturally t^ ^ either . The difference in height between the spring and the rams does not appear. The parties agreed that the court should act upon its personal knowl- edge of the peculiarities of hydraulic rams, which, so far as necessary for present purposes, are as follows : By the use of this machine the power due to the fall from a given height of a given quantity of water is utilized to lift a comparatively small fraction thereof to a height greater than the source or head. The effect of the machine is precisely the same as would be that of a water wheel driving an ordinary pump. The ad vantage of the use of the ram is its extreme simplicity and d ur- ability._ It wo rks automatic ally and in theory should run without stop- ping or touch by -the hand of man until its parts were actually worn out. It is, however, liable to stop and requires the hand of man to start i t again . I'his liability is due to several causes, none of which are of any importance, and all can be guarded against by proper care in setting it and in preventing substances other than water from passing through it, except one, viz., a necessary part of the machine is a chamber of confined air which acts as a cushion. This air comes in contact with and is liable to be absorbed by the water and exhausted, and when the air-chamber becomes filled with water the ram works defectively and is liable to stop. The tendency of the air to be exhausted varies with the character of the water and the height or head to which it is lifted. If the water is lifted to a great height there is a corresponding pres- sure of the water upon the air and the absorption of the air by the wa- ter is increased thereby, but' w ith a small height to lift against, li ke fi fteen, twenty or thirty feet, rams may ru n fo r weeks and m onths wTthouT stop£mo[. The process of recharging the airchamber with air is very simple and may be done by any person in a few minutes. An hydraulic ram, properly set, may run for one or more years with- out any repair, and the operation of repair or renewal is very simple. Pitney, V. C. The co mplainant rests his right to the continue d fl ow of the water upon the fact that such flow was apparent and con - t inuous at the time of the purchase, and constituted a valuable adjun^ t o the premises, rendering their use more beneficial and valuabl e. Against the case thus made defendant makes three points — first, that the use of the water in the way described was not necessar y to Cj j/jf Aiff^ the enjoyment of the premises; second, that it was n ot in actual use ^^*^'^'^' at the moment when the title passed ; third, that it was not in its n a- t ure continuou s, since the water did not run by gravity, but by machin- ery, which required the intervention of the hand of man, upon the land of the grantor, the defendant 524 ' DERIVATIVE TITLES (Part 2 I. Asjt o the element of necessity . I think some inaccuracy of thought and expression has arisen in the discussion by bench and bar of this doctrine of the cr eation of an easement by imp Hcation upon the severance of a tenement, as to the' importance ot the element of neces- sity, by faihng to distinguish between that class of cases where it has been held or claimed that an easement is reserved by implication in favor of that portion of the tenement which is retained by the grantor in and upon that portion conveyed, and that other class of cases where it has been held that an easement was granted in favor of the part con- veyed in and upon the part reserved. In the former class of cases the grantor is usually claiming an easement in direct derogation of his own grant, while in the latter it is well held to be in accordance with, and to flow naturally by implication from, his grant. In fact it has been suggested that the grant in such cases is not by implication, but that the quasi-easement passes with the quasi-dominant tenement as, in substance, a part of the thing conveyed, and without any regard to the element of necessity. On the other hand, in the case of a reservation, it h as been held tha t there can be no •implied reserva- tion of an easement in the land granted when the grantor has conve yed, as he gener ally^does. all his riglit,'^title and in te rest therein, except such gmi easement as is absolutely necessary to any enioyment of it wha tever, a s m the case of a wa y of necessity. Gale & W. Easem. *72 ; Godd. ^asenTcAm. Ed.) 266, 267; Nichols v. Luce, 24 Pick. (Ma'ss.) 102. 35 Am. Dec. 302; Oliver v. Pitman, 98 Mass. 46; Washb. Easem. *163, *164, and cases. Toi_permit_ the grantor to c la im such reserva ti on is to permit him t o derogate from his own gran t. So rigid was this rule held that in the older cases the reservation of a right of way to and from the close retained by the grantor out of the conveyance of the land surround- ing it was put on the ground of the interest that the public had that the close so surrounded should not be unused and unproductive. Th e co nveyances in common use in this country contain an express con - ve yance of all the right, title and interest of the grantor in andJ ^ t he premises conveyed, and it is difficult to perceive on what groun d s hort of absolute necessi ty any easement could be reserve d. This distinction between a grant and a reservation by implicatio n seems to be founded in logic and, as will appear further on, is now thoroughly established in the English tribunals, and it seems to me to furnish the true test as to the value and importance of the ele- ment of necessity in the establishment of easements upon the division of tenements. My examination of the authorities has led me to the conclusion tha t where the right to the easement is based upon the ground that i t passes^, as in substance, a valuable adjunct to the land conveyed, t he eleni£n t_of^ece^sity is not a requis ite, and to use the word "neces- sary" in connection with it is to misuse it. In saying this, I may say that I am, in appearance at least, going contrary to what has Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 525 been said and decided in many cases; but I think t hat an exa mi- in ation of them will show that in most, if not all, of those instanc es w here the case was that of an implied grant of an easement in rnnn er- tio n with the conveyance of a quasi-dominant tenement, the so-called "necessity" upon which the judges relied was, in fact, no necessity at all, but a ^rnere beneficial and valuable convenience , and that this eleva- tion of a mere convenience to the level of a necessity was the result of an attempt to obliterate the distinction between an implied gr ant and an implied reservation, before referred to. and to place implied reservations and implied grants upon the same footing , and to hold that upon the severance of a tenement one part of which had been subjected to a quasi-servitude, which was continuous and apparent, in favor of the other, the easement would be preserved, whether it be by grant, when the dominant tenement is conveyed, or by reservation, when the servient tenement is conveyed ; and as the latter could only occur where the element of necessity was present, it was held that such element must also be present in the former case.^® * * * These cases in our own state have probably established the doctrine here — certainly in this court — t hat in these cases of ^B ^, ^^^"ent ^^^ c ontinuous easements, upon the severance of the tenement, a reserv a- tionof a guasi-ease ment will take place on the conveyance of the ser- vient pa rt_^Yh££ey_erJ t would pass by way, of grant on the conveyan ce of the dorni'^^"^ PP ^ti ^"d that in each case the eleniejij^ofnecessity is a requisite. But for myself, I desire to repeat, by way of protest, that my examination of the authorities has l ed me to the conclusion that th is doctrine of rnu tuality is n ot founded on solid ground and is mis- c hievous in its tendencies, and also tha t it is a misapplicatio rLj;: ^. tjie w ord "necessary" or "necessity" to apply it to such a case, and leads to uncertainty and confusion in attempting to define diflferent degrees of the element, when, in fact, strictly speakmg, it is not capable of be- ing graded. I t seems to me that the proper inquiry in such cases is w)iether th e a pparent and contmuous easement in question forms a part of the te n- em_enj ;, a nd is beneficial to an d adds to its value for use , an d will con - t inue to do so in the futur^, If it is, then the grantee is, upon plain principles, entitled to have it continued. He is. entitled to enjoy th e tl ]ing as it was when he bought it, with all its apparent appurtena nces, ifjhose app arent'appurtenances are apparently permanent, and are u se- ful and add to its value. ■■!» . ' I III I " III In tlie case in hand, I think there can be no doubt that the flow of the water at the bam or stable and at the green-house a re val- uable additions t o the ^Ero2erty^ i ncrease its beneficial use^ and als o that it is necessary in the sense in wh ich that word has been used in t hat conne ction, and is defined by Vice-Chancellor Van Fleet in Kelly 15 A portion of the opLnion, in wbich the court reviews many English and American cases, is omitted. 526 DERIVATIVE TITLES (Part 2 V. Dunning, 43 N. J. Eq. 62, 10 Atl. 276; and I adopt the language of Lord-Justice Mellish in Watts v. Kelson, L. R. 6 Ch. App. 166, above quoted, as applicable to this case. It w ould be no answer to say, if it were truf , thcit tlip ^m-nplainant may procure water to supply these places from the public water - works at a comparatively trifling expen se. That expense, though trifling, is continuous, and it was the relief from its burden which formed the element of value in the water which was actually flow- ing- II. The se cond objection made presents little difficu lty. Complain- ant is clearly entitled to have the premises in the condition which they were at the time he made the contract — April 13th, 1892. His right to them vested at that date. As the contract was positive and binding on both parties — defendant being bound to convey and the complainant to purchase and pay the price — the familiar rule in equity is that from that time on, the premises in question belonged to the com- plainant, subject to the lien of the purchase price, and that the pur- chase price belonged to the defendant. I t would be monstrnns, in Heerl, to . hold that the defendant might, at the very moment that the- cked w ^ being deh y ered in New York^ by his agent in Madison d estroy an _apparent and continuous easement and deprive'^e^'comp TMnant of the benefit oi_ it>- Nor can the defendant, as the case now stands, deny the right of ' his agent to sign the contract for him as his agent. The execution of the deed in pursuance of it was in ratification and adoption of ^ V *» the previous contract, with all its burdens as well as its benefit. yj III. The t hird question presents more difficu lty. Was the eas e- A ty m ent in its nature continuo us, considering the fact that the water * jT did not run by gravity, in the ordinary sense of the term, but was Kjr forced up by a machine driven by the power of the fall of a greater ■' quantity, and that it would be necessary for the complainant to enter on the servient tenement from time to time to readjust, repair and renew this machine? All cases of this character deal with artificial structures, situate in whole or in part on the servient tenement, which are liable to fall into disorder and decay, and a ll the adjudged cases hold that the owne r o f. the dominant tenement may enter upon the servient tenement f or t he purpose of repairing and renewing those artificial stn irtnrps. It was so declared in Nicholas v. Chamberlain, and Mr. Gale quite properly calls this right of reparation and maintenance a "second- ary easement" (Gale & W. Easem. *323 ; Washb. Easem. *24, *25), which is appurtenant to the primary or actual easement. If, in the case in hand, the water ran by gravity in an artificial ohannel, complainant would have the right to enter from time to time upon defendant's land, and repair and renews such part of it as was there situate. S o if the water — supposing it to be practica ble —were raised by a dam ins tead of a ram tp the height nec p«isar Y to Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 527 m^l'p it f nvy |^ tlip ham ^nc\ gTPf^n- house, the rjcfht of reparation a nd r enewal of this da m y^nnlfl he inrln^pf]^ and, in such a case as this, the head or power would be employed to carry it. These secondary easements, however, are not the easement which passes with the conveyance by implied grant because apparent and continuous. They are, as before remarked, me rely incidents thereto, a nd, because of their non-continuous and desultory character, the principal easement is none the less continuo us. In this connection, what is said by Mr. Gale in his treatise is not without import (*50) : "An easement is a quality superadded to the usual rights, and, as it were, passing the ordinary bounds of property ; and, with the exception of those easements the enjoyment of which depends upon an actual interference of man at each time of enjoyment, as of a right of way,^ it is attended with a permanent alteration of the two heritages affected by it, showing that one is benefited and the other burdened by the easement in question." His idea oi a non-continuous easement is one whose enjoyment de - p ends upon an actual interference of man at each time of enjoyme nt as in Polden v. Bastard, supra [4 Best. & S. 257, L. R. (1 Q. B.) 156]. And it se ems to me that that is the correct te st, and that the mer£ - fact t hat a machine is used which is substantially self-acting, and does not r e- q uire the constant attention of man, does not make it non-continuou s, any more than the propulsion of the water by a dam through an ar- tificial channel would have that effect. It is said that the owner of the servient tenement will be subjected to the servitude of a more frequent entrance upon his land for the purpose of adjusting and re- pairing the ram than he would in case of an artificial ditch or pipe or dam. But I think the difference is one of degree and not of char- acter, and it is hardly necessary to say that a mere difference of de- gree will not alter the case. I will advise that an injunct ion issue. • ^ .__^ , t v LIQUID CARBONIC CO. v. WALLACE. (Supreme Court of Pennsylvania, 1908. 219 Pa. 457, 68 Atl. 1021, 26 L. R. A. [N. S.] 327.) Bil l_ in e quity for an injunction . Before Shafer, J. The facts are stated in the opinion of the Supreme Court. Error assigned was decree awarding an injunction. Mitchell, C. J. The legal principle governing this case is thus expressed in Grace M. E. Church v. Dobbins, 153 Pa. 294, 25 Atl. 1120, 34 Am. St. Rep. 706: "W here an owner of land subjects part of it to an o pjgn. visi b le, perm an ent and c ontinuo us servitude or easeme nt in lavor of another part^no^en aliens either, the purchaser takes i 528 DERIVATIVE TITLES (Part 2 s ubject to the burden or the benefit, as the case may b e." See, also, Manbeck v. Jones, 190 Pa. 171, 42~Atr33d; The facts are not in material dispute. In 1890 Wallace, one of ap- p ellants. b ecame the owner o f a large lot of ground in th e twend elh ward of the city of Pittsburg ! It was boun ded by three 'strppt 'TanH the Pennsylvania Railroad, but being hilly and uneven, access to parts of it was difficult or very inconvenient. Wallace began to grade_ it, a nd in the course of so doing roads were worn here and there ov er t he property by the hauling incident to grad ing, the principal road so worn or constructed being in substantially the same position as that over which the plaintiff now claims a right of way. In 189 1, Wallace conveyed to the plainti ff a portion of said tract, bounded b y t he Pennsylvania Railroad, two streets and other lands of Wallac e a fterwards conveyed to the Duquesne Reduction Companv . At the time of sale by Wallace to plamtirf the said road was used upon the ground and ap pellants admit that sto n e quarried upon other land o f Wallace and sold to the plaintiff was hauled down over it . Appellee used it in the erection of its buildings and claims that it was in gen- eral use by the owners of the adjacent properties for access, and it ap peared that it had continued in such use until 1906, when appellan ts b uilt a fenceacFoss it and plaintiff filed this bil l. The court found that it was t he only wagon road on the lo t, and th ^t a ccess from the streets by which the a ppell ee's lot was bounded wa s i mpracticable for loaded wagons at most points, and very incon - v enient for any other purpose. The learned court below re fused to find the road a way of nec es- sity, because there were other ways of access and egress however in- convenient, citing McDonald v. Lindall, 3 Rawle, 492. The c ourt, however, found that "the road wa s apparent on th e g round and there was nothing on the ground to indicate that it wa s not i ntended to be permanent. He therefore found that the right to the f use of the road pa ssed by implication as an easement, appurtenant to \\j)Ut^ tlie^^rant. l**^ The argument of the appellant rests mainly on the view that the road having had its origin in temporary convenience to the owner of the larger lot was never intended to be permanent,' and that the inten- tion was an essential element in the creation of a servitude. The principle in general may be conceded, and so long as the ownership of the dominant and servient lands remains in the same party the ap- plication of the principle may be determined by his actual personal in- tent. B ut on a severance a question of conflicting rights a rise s and th e iiT t e nt which lies at the bqsis of the creation of a servitude is no longe r //* the grantor's actual and perhaps undisclosed intent,^ but the rnut ipl .jr^ ^ A. 249, 15 Am. St. Rep. 235 (cited though in a different connection Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 529" in Bank v. North, 160 Pa. 303, 28 Atl. 694). " The intention to be s ought is not the undisclosed purpose of the actor, but the intentii: )n implied and manifested by his act . It is an intention which settles, not merely his own rights, but the rights of others who have or may acquire interests in the property. Th ey cannot know his secret purpos e, and their rights depend, not upon th at, but upon the inferences to, be d ravy n from what is external and visibly." The facts as found by the court in the present case were that Wal- lace was at the time of the sale "the owner of the land over which the way is claimed and of the land to which it is now claimed to be ap- purtenant. Be fore the grant. Wallace had laid out and opened_j n2fln t he ground the road in question, and it was the only road by which it was practicable to have access to the land. The road was apparen t on the ground, and there was nothing upon the ground to indicate that it was not intended to be permanent." The natural inference fro m t hese facts would be that the road was intended to be permanent . T hat inference t he grant ee was entitled to draw without rp p;arrl t n tVip g rantor's actual but undisclosed intent , and it therefore became the law of the case. De cree affirme d at the costs of appellant.^' ^/^tJO^KJU^ ^S/^-'O-^^ ADAMS V. GORDON. (Supreme Court of Illinois, 1914. 265 111. 87, 106 N. E. 517.) App ellant filed her bill in chancery in the circuit court of Lake coun- ty, Illinois, against appellee, f or an injunction to restrain him from i n- t erfering with her in the exercise of her rights which she claimed in 16 In Martin v. Murphy, 221 111. 632, '77 N. E. 1126 (1906), and German Sav- ing & Loan Co. V. Gordon, 54 Or. 147, 102 Pac, 736, 26 L. II. A, (N. S.) 331 (1909), q uasi easements of passage evidenced by board walks and in part to f ences, were held to be turned into re^ e asements bv implication upon seve v- ance of ownersnlp ! So, also, in Kollo v. i\ersoii, 34 Utah, ' 116, W Pac. 263, 26 L. K. A. (JN. S.) 315 (1908), where the quasi easement was evidenced by a cement walk. See Polden v. Bastard, and note thereto, supra. In Baker v. Rice, 56 Ohio St. 463, 47 N. E. 653 (lSi37), the court had to de- termine whether an easement of a way had been created by implication, the deeds severing the common ownership having been delivered simultaneously. The way was "plainly obvious and appai'ent." The court held the easement was created by implication. ]\Iinshall, J., said: " But it is claimed, that on ly s uch easements as are termed 'continuous' will pass by implicatio n in a grant, and tiiat sucn as are termed 'discontinuous' will no t^ This is a distinction of the civn law, and has been incorporated in the law of some of the states, par- ticularly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers ; the latter require the in- tervention of man in their use, such as ways. T l;ie distinction is somew hat a rbitrary and is not uniformly adopted, slh vvill appear from the cases cit ed. The bgttgrml A and the one now more generally adopted, is not to conslder"tb e Aig.Pbop 530 DERIVATIVE TITLES (Part 2 th e nature of an easement in certain water facilities and a way thereto , s ituated on the lands of appelle e. A demurrer was sustained to the bill, and appellant electing to abide by her bill, a decree was entered dismissing the bill for want of equity. She prayed and perfected an appeal to the Appellate Court for the Second District, which has trans- ferred the cause to this court pursuant to the statute, for the reason that a freehold is involved. It appears from the allegations of the bill that prior to Novemb er 29, 1911, appellee was the owner of a tract of about one hundred o r more acres of land situated on what is known as Deerpath avenue , in t he vicinity of Lake Forest, Illino is! November 29, 1911, he entered into a contract with John F. Tracy for the sale of a portion jof this land, in which he contracted, among other things, tha t the purchas er s hould have the right to the uig_Qf the_well located on his adjacenj p roperty, together with the pump, gasoline engine and tank situ ated t hereon, u ntil such time as public water mains should be installed in Deerpath avenue, w ith the right to use a path.- not exceeding eight fee t i n width, from a gate on the west line of the property leading in a_d i- r ect line to the well , the purch aser t o maintain the well , pump, engin e and tank at his own expense and furnish water for the use of appe llee w ithout charge or expense to him, and should said Tracy fail to s o maintain and furnish water, his right to the use of the well and pump might be terminated by the vendor and all obligations under the con- tract canceled. On the same day the contract was made appellee co n- v eyed the land described in the contract to said Tracy bv warrant y ^^jL.A^ deed, i n which no reference whatever is made to the provision in th e - -y^. " c ontract in relation to the use of water facilities as above set fort h. ^^'^^ >^ At the time the contract was made between appellee and Tracy appel- V4A'^*^^^ lant was a tenant on the property under a lease expiring on November '^^^y^'^^ 30, 1911. Ja nuary 4. 1912. Tracy conveyed the land purchased by hi m U^ t o appellant by warranty deed in all respects the same as the dee dJie had received from appelle e, the deed making no mention whatever of the easement contained in the contract between appellee and Tracy. Appellant alleges the omission of this matter was due to the mistake of the scrivener in drafting the deed, but she does not ask that the deed be reformed. F or some years the water facilities locat ed on appellee 's l and have been used by him and his ten ants, includin o- apppiia.nt, tor the purpose of supplying the premises now owned by her with water for domestic purposes and to supply water for the stables, lawns and gardens thereon, s aid water facilities being absolutely necessary an d es sential to the full enjoyment of her premise s. Appellant charges that one of the important factors inducing her to purchase the premises was the fact that she should have the right to the free and unobstructed use of the water facilities mentioned in the contract between said Tracy and appellee. T he pump, pump house, tank and engine are located on ap pellee's premises about one hundred feet from the west line, of ap- pellant's property, and the water is conveyed from there to her premises x^. J- Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 531 and buildings by means of an underground pipe leading from the tan k o n appellee's property to die house, stable, l awn and garden on app el- l ant's premises . The pipe is visible on appellee's land between the point where it leaves the tank and enters the ground, and also visible on appellant's premises where it emerges from the ground and connects with the faucets, plugs, Hush-boxes and hydrants on her land A vie w o f the premises at the time of- the purchase by Tracy and of her pu r- c hase from Tracy would have disclosed that the faucets, plu^s. flus h- b oxes and hydrant on her property were connected with the tank on appellee's lan d, and that the pump, pump house, engine and tank situ- ated thereon were used as the means of supplying these premises with water, and t hat the water facilities thus provided were highly benefici al to her property . No public water mains have been installed or con- structed in Deerpath avenue leading to this property, and it is ind is- p ensable to its use and enjoyment by appellant that she have the ad - v antage of water facilities provided for it, situated on appellee's land . After appellant became a purchaser appellee permitted her to con- tinue to use the water facilities for some time without protest and from time to time to make the necessary repairs thereon. Shortly before filing the bill he dema nded of her the p ayment of $50 which he claimed was due on a former tenancy by her, and when she refused t o p ay, on the ground that it was without any foundation , appellee refus ed t o allow her servants to make repairs, on the engine use d for pumpm g water into the tank , locked the door to the pump house, shut the water ofif, forbade appellant or her servants to use the well or the pathway thereto and blockaded the same by installing posts and wires across the pathway, and th reatened violence to appellant and her servants if t hey attempted to obtain water from the well or to use the pathw ay l eading thereto . The bill pra yed for an injunctio n enjoining the ap- pellee from interfering with appellant's rights in the premises and in the use of the water, pump house, engine and tank and other water fa- cilities as above set forth, and for general relief. A g eneral demiir rer w as sustained to the bill, setting forth the above facts. Appellant elect- ed to abide by her bill and a decree was entered dismissing the bill for want of equity. T his appeal followed . , The errors assigned are, (1) that the court erred in sustaining the demurrer to the bill ; and (2) that the court erred in dismissing appel- lant's bill for want of equity. Craig, J.^'' Appellant by her bill asserts and seeks to establish and maintain a right in the nature of a perpetu al easem ent in the adjoining l ands of the appellee in the use and maintenance of certain water fa- c ijities located thereon, by means of which her house, barn, garden and premises are supplied with water. T his right, if it exists, is an e asement appurtenant t o an estate in fee, and a bill filed for the pur- pose of establishing such an easement involves a freehold, and the case 17 A portion of the opinion is omitted. (^ 532 DERIVATIVE TITLES (Part 2 was therefore properly transferred to this court Tinker v. Forbes, 136 111. 221, 26 N. E. 503 ; Foote v. Marggraf, 233 111. 48, 84 N. E. 42; Foote v. Yarlott, 238 111. 54, 87 N. E. 62; Espenscheid v. Bauer, 235 111. 172, 85 N. E. 230. Appellant insists that she is entitled to the benefits of the coji tiact o f November 29. 1911, between Tracy and appelle e, and also that the water facilities on appellee's land constitute an open a nd vi sible ea se- me nt appurtenan t to her premises, which passed by the deed of con- veyance of the land from appellee to Tracy and from Tracy to her. App ellee in s ists that no rights passed to appellant under the contrac t withTracy, tor the reasons it was never executed by Tracy, that it was a pe rsonal contrac t, and th at it became merged into and exti n- gu ished by the_deed subsequently made conveying the land to Tracy . The appellee further insists that in order for an easement to pass as appurtenant to land, it must be open, visible and continuous and such as does not require the interference by man. We do not deem it nec- essary to pass upon each one of these contentions separately, but the substance of each and all of these contentions will be given full con- sideration. T he object in construing and interpreting an instrument is to- ascer- t ain and make it speak the true i ntention and meaning of the par ties at the time it was made, and where any doubt exists as to its sense and meaning, re sort may "be had to the circumstances surrounding i^s _ex- e cution, for the purpose of ascertaining the subject matter and th e s tandpoint of the parties m relation thereto . Without this knowledge it would be impossible to fully understand the meaning of an instru- ment or the effect to be given to the words of which it is composed. Goodwillie Co. v. Commonwealth Electric Co., 241 111. 42, 89 N. E. 272. This knowledge is almost as indispensable as that of the language in which the instrument is written, and a reference to the actual condition of things at the time as they appeared to the parties themselves will often afford the court great help in construing such language and ar- riving at the t rue intent and meaning of the agreement they have mad e. By referring to the situation of the parties and a condition of the prem- ises at the time appellant became a purchaser of the same, we find she had been a tenant thereof for some years, the length of time not being stated in the bill, and during all of that time had used and enjoyed all of the privileges which she now claims as an easement appurtenant to her premises. In purchasing;- the property she had a r ight to assume a nd expect she was buying itin its then condition and would havT^ r i^ht to use and enjoy alFof those necessary conveniences which ha d been placed thereon by the owner and were used in connection therg - witb^ and were recogn iz ed by the owner as beiiify ^ppnrt-pn;^nt to th e premises a nd passing with a lease under which she had enjoyed the same as a tenant. The rule is, w here _the owner of lands divides his property into two parts and disposes of one part, he by implication includes in his grant Ch. 4) CREATION OP BASEMENTS BY IMPLICATION 533 al l siirVi (^a 'cements in the remaining part as were nece s sary for th e r easonable enioyment pf the part which he grants in the form in whic h i t was at tlie time he transferred the property , the general rule of law being, that when a party grants a thing, he by implication grants what- ever is inc ident t ojt and nec essary to its be np.fidal enioyment.. Newell y. Sass, 1421004^31 N. E. 176; Keegan y. Kinnare, 123 111. 280, 14 N. E. 14 ; Foote y. Yarlott, supra ; Feitler y. Dobbins, 263 111. 78, 104 N. E. 108S; Martin y. Murphy, 221 111. 632, 11 N. E. 1126; Hankins V. Hendricks, 247 111. 517, 93 N. E. 428; Powers y. Heffernan, 233 111. 597, 84 N. E. 661, 16 L. R. A. (N. S.) 523, 122 Am. St. Rep. 199. A nd it is not necessary that the easement claimed by the grantee l) e absolutely necessary to the use and enjoyment of the property : "it is s ufficient if it is hig hl y ^ convpnipnt and beneficial therefo r." (Newell y. Sass, supra ; Powers y. Heffernan, supra!) Where an owner sells a portion of his land he is presumed to intend that the purchaser shall take it in its then condition. (14 Cyc. 1166.) This intention is to be sought, not in the undisclosed purpose of the vendor, but in what is manifest and implied from his acts. Liquid Carbolic Co. y. Wallace, 219 Pa. 457, 68 Atl. 1021, 26 L. R. A. (N. S.) 327; Hopewell Mills y. Savings Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235. In Feitler y. Dobbins, supra, the rule is stated as follows : "The law applicable to the situation here is, that where the owner of entire premises arranges for ways, light, etc., for the benefit of the different parts or portions of the premises, and afterwards the premises are severed and the title vested in separate owners, each grant will carry with it, without being specifically mentioned, the rights and burdens and advantages imposed by the owner prior to such severance. The do c- t rine is founded upon the principle that the conveyance of a thing im - ports a grant of it as it actually exists at the time the conveyance is made, unless a con tr ary mtentio j T^js m^nifestpd tn fhe gra , p l- This doc- trine has often been applied by this court. Morrison v. King, 62 111. 30; Clarke v. Gaffeney, 116 111. 362 [6 N. E. 689] ; Newell v. Sass, 142 111. 104 [31 N. E. 176] ; Plankins v. Hendricks, 247 111. 517 [93 N. E. 428] ." The following are a few of the cases which will illustrate how that doctrine has been appHed by the courts in analogous cases : In Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094, it was held that a water pipe leading from a driven well in a yard to a sink in the kitchen of a dwelling house, there ending in a pump by which water could be habitually drawn from the well to the kitchen for domestic purposes, would pass by a conveyance of the dwelHng house, alone, by the owner of both house and yard, although the well and water pipe were both hidden from view, and that the same result would follow a simultaneous conveyance of the house to one person and the yard and well to another, i f the latter took with notic e of the connection between the well and pump. In this connection see, also, 14 Cyc. 1183, where the rule is stated to be as follows : "If the owner of land devise s a system of pipes or conduits through which water is conveyed from a <^-^ 534 DERIVATIVE TITLES (Part 2 s prin^.on one portion of his premises to another portion fnr the bene fit o f the latter and then alienates the portion to which the water is thu s conveyed , the right to receive water through such pipes or condu its over the land conveyed will pass to the grantee by ?^ n^'"a J wnrrk " In Ingals v. Plamondon, Th 111. 118, a furnace flue projected eight inches through a party wall. The owner of the two lots divided by the wall sold one of them and afterwards sold the other. A question arose between the first and the second grantees as to the right to maintain the flue. The flue was shown to be necessary to the maintenance of the furnace and its existence apparent to the second vendee when the premises were purchased, and the easement was upheld as appurtenant to the premises. In P owers v. Heffernan, s upra, it was held that where the owner of a building, upon erecting a new building on an adjoining rot, uses the stairway and hall of the old building for many' years as the only means of access to the second floor of the new building, an easement attaches in favor of the new building upon a sale of the old building, although the only reservation in the deed is the right to one-half the party wall between the two buildings. This holding is based on the principle that ^w here the ow ner o_f_a building, whi l e he was seized of the entire tid e, made certain arrange ments with reference to access, heat, light an d a jr which are hig h ly beneficial and convenient to the use and enjoy - ment of the property an d e nhance its value, sells a portion of the build - i ng he sells it in its t h e n condition, a nd each portion of the severe d p remises is subject to th e burdens or advantages thereby imposed o r conferred upon the oth er-b y the own er. In Foote v. Yarlott, supra, we held that where the owner of a flat- building executed two trust deeds for the north and south halves of the building, respectively, and afterward installed a heating plant so as to heat the whole building, the heating plant being located on the north half, an easement was created in favor of the south half in the benefi- cial use and enjoyment of that part of the heating plant located in the north half, which right could be asserted by anyone who might become the owner of the south half under the trust deed. It was there said : "After the trust deeds were executed, and before the extension of the time of payment, the owner of the property put in the steam heating plant, with its pipes and radiators, to heat the entire' building. While it was designed for the benefit of every part of the building, that por- tion where the steam heat was generated was on the north half. If the plant had been in the building at the time of the making of the trust deeds an easement for the enjoyment of the heating plant by anyone who should become owner of the south twenty feet upon foreclosure would have passed although not expressly stated, on the principle that when a party grants a thing he grants everything pertaining to it nec- essary to its enjoyment. The owner could not create any charge or easement on the north half, after the execution of the trust deeds, to the detrmient of the owner of that half, but the natural conclusion Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 535 would be that the installing of the heating plant subject to the right of the owner of the south half to the beneficial use of the same plant con- stituted an addition to the security as to the north half, and so far as appears that is true. The owner installed the heating plant, which in- creased the value of both parcels and which was necessary for the convenient and comfortable enjoyment of both, in such a way that the portion of the plant designed to generate the steam heat was on the north half, and the advantages and burdens of the arrangement attached to the property. Even more liberal principles ought to be applied in such a case than in case of the implied reservation sustained in Powers V. Hefifeman, 22>^ 111. 597, 84 N. E. 661, 16 L. R. A. (N. S.) bZo, 122 Am. St. Rep. 199. I n our opinion the trust deed incjudes the easem ent of the beneficial use of that part of the heating plant located on t he north twenty fee t, and the owner of said north twenty feet must per- mit such beneficial use by anyone who may become the owner of the south twenty feet under the trust deed." N q^ distinction, in p^'nriplg^ exists or can be made in the applicati on of the law of easements, between easement of heat, light qnd air of of i ngress and egress , and the right to the use and enjoyment of tlie water rights and facilities shown in the case at bar. Nor can it well be said that an easement in the beneficial use and enjoyment of the heating plant in Foote v. Yarlott, supra, was more open, visible and continuous, and susceptible of being operated, used and enjoyed without the inter- ference of man, than the water facilities, pump and engine are in the case at bar. The aid of man to put them in operation and keep them in repair is equally necessary and essential in both cases. The above cases so conclusively answer appellee's contentions upon this question as to render a further discussion of them at this time wholly unneces- sary. * * * F or the reasons given, the decree will be reversed and the cause r e- manded to the circuit court of Lake count y, with di rections to ove rrule the de murre r, and for further proceedings in accordance with the views herein expressed. Reversed and remanded, with directions. BUTTERWORTH v. CRAWFORD. (Court of Appeals of New York, 1S71. 46 N. Y. 349, 7 Am. Rep. .352.) Appeal from judgment of the General Term of the Court of Com- mon Pleas, for the city and county of New York, affirming judgment entered upon the report of a referee. The facts of this case, as found by the referee, are as follows : He n- ry Vulkening in 1864 owned two houses ad j oining each other on t he north side of Forty-Sixth street, i n the city of New York, known as Nos. 83 and 85 West Forty-Sixth street. While such owner, he dug 536 DERIVATIVE TITLES (Part 2 .H'' ^^F" ^/ ^« /^ ^ t ude is apparent, or that there is an apparent mark or sign of it, and Q ^-'«-t^ seems to be b ased on the ^ct that the situation and construction of t he premises afforded such a sign . In Washburn on Easements (2d ed.), p. 68, the learned author, after reviewing the cases on this subject, states that he c onsiders the doc - -trine of Pyer v. Carter confined to cases where a drain is necessary 538 DERIVATIVE TITLES (Part 2 t o both houses, a nd the owner makes a common drain for both; and ' . . ; — • i ' «^ t his arrangement is ajicaxgilt and nhviniT, to an observer . If Pyer v. Carter goes farther than that, or, at all events, if it ap - pl ies to cases where there is no apparent mark or sign of the drain, it i s not in accordance with the current of the authoritie s. The bearing of that case upon the question, whether the alleged ease- ment was one of necessity, upon the point as to the order in which the tenements were sold, and upon the other questions, which were argued before us with so much learning and ability, need not now be consid- ered, as we do not propose at this time to decide those questions ; and for the same reason we forbear reviewing the numerous other au- thorities to which we have been referred, b a_sing our decision upon th e s ingle ground that the servitude claimed was not apparen t. The judgment should be reversed and a new trial granted, with costs to abide the event. All concur. Judgment accordingly. (^n.c^,J WEEKS V. NEW YORK, W. & B. RY. CO. (Court of Appeals of New York, 1912. 207 N. Y. 190, 100 N. E. 719.) Appeal from a iud; :; ^ment of the Appellate Divisio n of the Supreme Court in the second judicial department, entered June 13, 1911, af- firming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. CiiASK, J. On July 30, 1906, the p laintiff purchased two lots of l and in New Rochelle w hich were in part described in the deed as follows : "known and distinguished as lots numbers fifty-seven and fifty-eight (57 and 58) on a certain map entitled 'Map of Property Belonging to W. Chalmers, J. C. Wilson and Others, New Rochelle, N. Y.,' dated December, 1904, made by Horace Crosby, C. E. filed in the Westchester County Register's office, whi ch lots a rg iI'' Q'"P pn ^'tim- l arly bounded and desc ri bed as follows : Beginning at a point on the westerly side of Cedar street as shown on said map (detailed descrip- tion omitted), to the said westerly side of Cedar street and running thence southeasterly along the said westerly side of Cedar street, eighty-one and one one-hundredths (81.01) feet to the point or place of beginning." The d efendants subsequently became the owners of all the other lot s fron tinp^ on the so-called street, north of Orchard street m said city, ancl they commenced the er ection of an embankment across said so - c alled street, north of Orchard street, so as to obstruct the plaintiff 's r i^ht of access to her said lots. Ch. 4) CREATION OF BASEMENTS BY IMPLICATION 539 This action was commenced and the complaint alleges in detail the plaintiff's ownership in fee of said lots, and the acts of the defendants, including an allegation, "T hat said railway company, its agents or e mployees, have caused to' be erected across said Cedar street, sam e being a public street, and are now erecting said embankment so as to c ompletely obstruct the right of access of this plaintiff through sa id "Ced ar street to her said property." The complaint demands judgment: "(1) That the defendants be enjoined an d r estrained from in any way interfering with the free use of said Cedar street by tliis plaintiff. (2) That defendants be co mpelled to remove from said Cedar street al l o bstructions now erected thereon interfering with the free access of plaintiff to her premises through said street." The plaintiff's failure to recover a judgment protecting her right of access to said lots has apparently resulted from the extraordinary attitude of her counsel in insisting that the so-called street is a pub- lic street or highway when he was wholly unable to sustain such posi- tion. The court did, however, find the following facts : "Second. That in or about the month of December, 1904, W. Chalmers, Frederick A. Steele and J. C. Wilson, at that time the own- ers of the so-called Maple Park tract in New Rochelle, duly filed a map of said tract, surveyed by Horace Crosby, in tlie office of the Register of Westchester county. "Third. That the description of the premises in the deed of Chalm- ers et al. to plaintiff, bounds same as abutting on Cedar street as in- dicated on the map filed by said Chalmers et al. in December, 1904, the abutting lot being described in said deed and on said rr"p as lot number 58." "Sixth. T hat the defendant the City and County Contract Compa ny is owner in fee of all the land or right of way over which the line o f t he defendant New York. Westchester & Boston Railway C ompany h gs been constructed , or is about to be constructed in t he, said Maple Park Tract, and more particularly is owner in fee of the lots 11, 12, 13 and 14, and th at part of Cedar stree t over which the line of the defendant, New York, Westchester & Boston Railway Company passes, and also of all of Ce dar street north of Orchard street, exce pt tha t p ortion opposite lot 58 to the center of said Cedar stree t. "Seventh. That defendants have caused to be placed on Cedar street aforesaid near Orchard street, obstructions consisting of stone, which completely block access over Cedar street northerly from said Orchard street, and placed said stone there before the commencement of this action." "Tenth. T hat plaintiff by the obstruction of stone aforesaid, is de - pri ved of all access to her premises, lots 57 and 58. over said Ce^ r street from Orchard stree t, and has been so deprived before the com- mencement of this action." "Twelfth. That plaintiff after delivery of deed to her of lots 57 and 540 DERIVATIVE TITLES (Part 2 58, used Cedar street more or less each year since, for going to and coming from said premises, to and from Orchard street. "Thirteenth. T hat plaintiff has not at anv time consented to t he c losing of C edar stre et by defendants or their ag ents. "Fourteenth. That at the time of delivery of deed, Exhibit 1, to plaintiff, Chalmers et al. the owners of the entire tract, still owned all the lots abutting on Cedar street north of Orchard street, and did not convey the balance of said lots until after plaintiff owned and had pos- session of lot 58 under the said deed and said deed was filed of rec- ord." The pl aintiff requested the court to find, as conclusions of la w : "14. That the proof shows that plaintiff is entitled to some relief and that the court should therefore have given judgment for plaintiff." "17. T hat plaintiff is entitled to a judgment directing defendants to xt- move all obstructions from Cedar street and enjoining defendants from fu rther obstructing the said street and inter fering with plainti ff's free access over Cedar street to her property described in the com- plaint." The co urt refused to find the conclusions of la w requested b y the plaintiff, but did find that the complaint states facts sufficie nt t o constitute a cause of action, and that tlie plaintiff has no adequat e remedy at law. It also found that that part of Cedar street north of Orchard street is not and never has been a public street, and that th e d efendants are entitled to judgment dismissing the p laintiff's complaj nt u pon the merits, and judgment was entered accordingly . The facts found show that the pl aintiff had a p r ivate easement ovg r t he so-called Cedar street. Her rights as the owner of such "easemen t, a § between herself and tfie defendants, are similar to the rights of a n a butter upon a public street or highway . In Lord V. Atkins, 138 N. Y. 184, 191, 33 N. E. 1035, 1037, the court say : "It is well settled that when the owner of land lavs ito ut i nto, distinct lo ts, with intersecting streets o r_avf.njaes,_a nd sells the lots with reference to such streets, his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open. W hen, in such a case, a lot is sold bounded bv a street, the p ur- c haser and his grantees have an eas eme nt in the stree t for the_jny- p oses of access, which is a property righ t." See, also, Reis v. City of New York, 188 N. Y. 58, 80 N. E. 573 ; 'india Wharf Brewing Co. v. B. W. & W. Co., 173 N. Y. 167, 65 N. E. 985; Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122, 165, 43 Am. Rep. 146; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Gerard on Title to Real Estate, 551, 821; Jones on Easements, § 430; Elliot on Roads and Streets, §§ 18, 144. Upon a trial before a court or referee an exception to a general finding of law, holding that one party is entitled to recover against the other, raises the question as to whether, upon all the facts found, the successful party was entitled to judgment. Hemmingway v. Poucher, 98 N. Y. 281. Ch. 4) CREATION OP BASEMENTS BY IMPLICATION 541 The pl aintiff, upon her pleadings and upon the facts found, was e ntitled to a jud.gment recognizing her private easement and grantin g h er some relief on account of the invasion of her rights. The judgment should be reversed and a ne w trial gra nted, with costs to abide the event. CuLLEN, Ch. J., and Gray, Wi;rner, Willard Bartlett, His- cocK and Collin, JJ., concur. Judgment reversed, etc.^* CITY OF BATTLE CREEK v. GOGUAC RESORT ASS'N. (Supreme Court of Michigan, 1914. 181 Mich. 241, 148 N. W. 441.) Bill b y the city of Battle Creek against the Goguac Resort Associa- tion Limited, and others for an injunc tion. From a decree for com- plainant, defendants appeal. Bird, J. The complainant, as well as the defendant association, are r ijarian owners on Lake Goguac . This lake is near the city of Bat- tle Creek, and covers 360 acres, and is f ed by subterranean spring s. Co mplainant purchased a parcel of land bordering on the lake in 1886, and comme nced to take therefrom its water supply in 1887 . From that time on, its consumption of the water increased, until it reached upwards of 3,000,000 gallons per day at the time this suit was filed. The d efendant association 'is the owner of lands bordering on the lak e a djoining those of complainants. It maintains a summerresort and batliing^ beach during the summer months. Complainant has for some time objected to the bathing at the resort, on the theory that it pol- luted and rendered the water unfit for the use of its inhabitants. Its p rotests were not heeded by the association, nor by the other defend - a nts who own and manage i t. In order to enforce what it conceived to be its rights, th is bill was filed to perpetually restrain the defendan ts t^i^^c^ Xt-lA^ f rom operating their bathing beach . The chancellor who heard the case gran ted the relief pra yed, and the def endants have appealed . The 18 What would be the situation if the deed made no mention of streets, but referred for description to a plat which showed contemplated streets touching the property conveyed? L and is sold and conveyed, reference being made for description to a pl at s howing a great many pi-oposed new streets, only one of which, however, touch - es the property conveyec^ In which of sucn contemplated streets, if any, does tne purchaser acquire rights ? What rights, if any, does he acquire? S ee Dan - i elson v. Sykes. 157 Cal. 6S6. 109 I'ae. 87, 28 L. R. A. (N. S.) 1024 (1910) ; Har- rington v. City of Manchester, 76 N. H. B47, 82 Atl. 716 (1912). What would be the situation if lots are sold and conveyed after reference to a plat which shows contemplated streets, but no reference is made to such plat In the deed, nor is there any reference m the deed to the proposed streets? See Pyper v. Whitman, 32 R. I. 510, SO Atl. 6, 35 L. R. A. (N. S.) 938 (1911) : Danielson v. Sykes, supra. What if the grantor does not own the land on which the contemplated streets are to be laid out? ieiC€^.( 542 DERIVATIVE TITLES (Part 2 most serious question raised by defendants is that the complainant has n o such right to the use of the water as entitled it to the relief granted. Both complainant and defendants are r iparian owners, and as suc h, i n common with others, they own the bed of the lake, and by virt ue of such ownership both have a right to a reasonable use of its water s for domestic, agricultural, and mechanical purpose s. Clute v. Fisher, 65 Mich. 48, 31 N. W. 614; 40 Cyc. p. 635. Unless the complainant can show that it has some right other than that which arises by reason of riparian ownership, it has no greater right in the waters than have the defendants. As a riparian owner, the complainant has no r ight t o divert the water for the purpose of selling it to the inhabitants o f Battle Creek . Stock v. City of Hillsdale, 155 Mich. 375, 119 N. W. 435 ; Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393 ; Ulbricht V. Water Co., 86 Ala. 587, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72; Lord v. Water Co., 135 Pa. 122, 19 Atl. 1007, 8 L. R. A. 202, 20 Am. St. Rep. 864; Sparks Manfg. Co. v. Town of Newton, 57 N. J. Eq. 367, 41 Atl. 385. The question therefore gets around to this: Whether one ripar ian >wner is entitled to equitable relief as against another ri parian owner, aid him in diverting the water to uses other than for riparian pu r- poses. If this were a suit by complainant to protect its right to some reasonable use of the water incidental to its riparian ownership, it would present a dififerent question, b yit when it seeks relief oi tl;i is c haracter to facilitate i ts business of unlawf ully diverting the water .^ it prays for relief to which it is not entitleH as a mere riparian owner . But counsel argue that the complainant's right is something more than a riparian right, and p oint to a legislative act whereby the city was authorized to go beyond its corporate limits to acquire water rights and, when acquired, to protect such rights against pollution. Act No. 428, Local Acts of 1887. We are unable to see how this act has any force in these proceedings. T hat act authorized the complainant^ to g o beyond its corporate limits and acquire water rights by purc hase or c ondemnation, which right it did not then have until the act was passe d. Houghton Common Council v. Mining Co., 57 Mich. 547, 24 N. W. 820. In pursuance of this act, the city purchased a s mall parcel of land on the shore. T lie city h as never exercised its authori ty unde r th is act, excep t to become a riparian owne r. If in pursuance of this act complainant had acquired all the water rights at Goguac Lake, ei- ther by purchase or condemnation, it would then be in a position to insist upon what it is now insisting upon. Th e act does not attempt to enlarge the riparian rights of the complainant at the expense of the other riparian owner s^ and indeed the legislature would have no _a u- thority to c onfer such rights upon the city without compensation, be- in g made therefor. Another claim made by complainant is that it has acquired the right by prescription to take its water supply from the lake. D e . £end - Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 543 ants' riparian rights began in 1885. before complainant's di d. When complainant purchased, it was with the view of putting down wells; later it installed an intake. As the use of the water by the city increa s- e d, the lake was lowered to such an extent that defendants filed a bi ll to restrain complainant from lowering the water and interfering wit h t heir riparian righT s! The city recognized the rights of the defendants and other riparian owners by d iverting Minges brook into the lake , which action brought the lake back to its normal level, since which time it has been so maintained. After diverting Minges brook into the lake, the chancery suit was discontinued by stipulation. The record s hows no such adverse use of the water as would ripen, into a prescrip - tive righ t : but, even if we assume to the contrary, the right acquired would be no more than the right to take the water subject to the use which the defendants and their predecessors in title have made of it since the resort was established in 1885. The prime object of th e c i_ty in filing this bill was not to establish its own right to use the wa - t er as it has been using it, but to restrain defendants from making the /}^u£P u^e of it which they have made since 1885 , If this relief is to be granted, it should be based upon some right. T he city has shown n o p rescriptive right, and as a riparian owner it would be entitled to n o such relief . Were the city attempting to establish its right to take the water as it has done in the past, other questions might arise which are not important on this record. In view of the conclusion reached upon this question, it will be un- necessary to consider the other questions raised. The decree of th e tjial ^ourt will be reversed, and the bill dismissed, with costs to de- aY Pendants. ( J^t-O dU^- I Stone, OstimndKr, and IV^orE, JJ., concurred with Bird, J. Brooke, J. I find myself unable to agree with the conclusions of >Ok my Brother Bird in this case. In addition to the facts stated by him Yj in his opinion, it should be noted that the complainant city of Battle f^^^tj^ V * Creek purchased the land upon which it located its water-works from ^^*fc^ one Surby, who was at that time and for many years had been con- / ducting a summer resort in a small way upon the banks of the lake. He sold to the city a portion of his land with the knowledge that the city intended to erect a pumping station thereon and to supply its citi- zens with drinking water from the lake. His resort business at that time was insignificant, though the record tends to show that bathing by his patrons was indulged in to some extent. Surby not only stoo d by_ and sa \ v_the city expend a large amount of money in the establish - mer U of its plant, but actually s o ld the land to tlie city to be use d for that purpose. Som e time after the city had placed in operation its waterworks, the def endant resort association purchased from Sur by his adjacent lands, and rebuilt the buildings and added many attrac - t ions in order to induce large patronag e ; among these was the estab- lishment of a bathing beach with dressing rooms and otlier necessary 544 DERIVATIVE TITLES (Part 2 accommodations for its patrons. It further appears tliat at the time the city estabHshed its pumping station upon the shores of the lake, the lake had no visible inlet or outlet, but was supposed to be fed by springs. The use of the water by the complainant city had a tendency to reduce tlie mean level in the lake, and after some years the reces- sion of the waters became so marked as to cause much complaint from other riparian owners, whereupon the c ity secured tlie right to div ert a small stream called Minges brook from its natural course into th e s outherly end of the lake , since which time it has been able, through a proper manipulation of the waters of such brook, to maintain the lake at its normal level, although in the meantime the daily consumption of the city has reached something like 3,000,000 gallons. It will thu s b e seen that the taking of the water from tliejake by the complainan t in flicts no injury upon t he defendant or o ther riparian ownej s. It further appears that since the establishment of said plant the city lim- its of the city of Battle Creek have been extended so that they now embrace the entire site of the waterworks plant upon the banks of the lake as well as a further very considerable frontage, apparently used as a public park. My Brother Bird's opinion proceeds upon tlie theory that the use complainant is making of the waters of this lake is both unreasonable and unlawful. Under the circumstances disclosed by this record, I find myself unable to agree with him on either proposition. No pe r- s on has a property right in wate r. The right is usufructuary only , a nd the modern authorities all tend to establish the principle thatj one r iparian owner may not restrain the use of the water by anotHer r i- parian owner for nonriparian purposes, u nless such use results in injury to the first. The very recent case of Stratton v. Mt. Hermon Boys' School, 216 Mass. 83, 103 N. E. 87, 49 L. R. A. (N. S.) 57, Ann. Cas. 191 5 A, 768, is instructive upon this point. There the de- fendant, a riparian owner, took the water from a running stream and diverted it to nonriparian lands upon a different watershed, for use upon lands wholly separated from its riparian lands. The case con- tains a very full review of all the authorities. It is there said: ".The question in such a case is not whether the diversion, being for a legitimate use, is in quantity such as is reasonable, having regard to all the circumstances, as it is in cases of distinctly riparian uses, but only wh ether it causes actual damage to the person complain ing. * * * That there can be no recovery for a diversion of water for a proper use, so small in quantity and of such character that it occasions no injury to the present or future use of the lower riparian land is recognized in other jurisdictions" — citing cases. I am further of the opinion that the complainant is entitled to the relief prayed upo n th e ground of estoppe l, As before pointed out, the parties held title as riparian owners from a common grantor, Sur- by. It is to my mind entirely clear that Surby, having sold a part Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 545 of the land belonging to him upon the shore of the lake for the pur- pose of enabling the city to establish a system of waterworks for the JjtjJ^xJljty ^ supplying of drinking water to its inhabitants, would not be heard to -^.^^^a/T s ay that he had the right to make such use of the waters upon h is ^^^SS^*^^^9^' a djoining lands as would render waters taken by the city unfit for ^V-*^ **-*-^- t he contemplated use. When the resort association purchased from Surby, it pu rchased with constructive knowledge that the city ha d ^jfj^^y}/ ^u^t^t^ b ought from its grantor, and with actual knowledge of the fact that \0\ - — ^ t he city was then taking its supply of drinking water from the lake -<-a.>&«.^"v* by means of its plant, plainly yisible . Under the circumstances I am ^aJulXK A^^*""^ of opinion that Surby's grantee is under exactly the same disability j^^ 1^-C4 _ that would attach to Surby had he attempted to render his grant value- /" . less by a pollution of the waters immediately after the grant was • made. I am further unable to agree with the proposition that the use which the defendant resort association is making of the waters of the lake is, under the circumstances, either reasonable or lawful. In the case of People V. Hulbert, 131 Mich. 156, 91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588, the court held, though with some apparent dif- ficulty, that Mr. Hulbert, a riparian owner, could not be punished for bathing in this lake, although his act was in violation of a legislative enactment. Act No. 428, Local Acts 1887. Whatever may be said of the propriety of this decision, and its soundness is questioned by complainant, it is apparent that the court was mindful of the possi- bility of future developments when it very carefully limited the ef- fects of the decision to the single point then in issue. Mr. Justice Moore, in concluding his opinion, said : , "I n what we have said we do not mean to intimate that an uppe r x /k^^ .A-a^ p roprietor may convert his property into a summer resort, and invi te / ^ large numbers of people to his premises for purposes of bathing, .gj td I / 3 / "M*"*^* ' g ive them the right possessed only by the riparian owner and his f am - j i ly. We are undertaking to decide only the case which is presented-^ here." This court thus clearly foreshadowed its probable action if such a case arose. It is unnecessary to predicate complainant's right to re- lief upon the fact that the health of 30,000 people is endangered by defendants' unlawful acts. T he city as a riparian owner, with but a si ngle resident upon the land who used or was entitled to use the w a- t ers of the lake for drinking purposes, would have the absolute righ t t o enjoin his neighbor from making such use of the water as would r ender it unfit for drinking purpos es. Defendants filed a cross-bill, in which it asks that complainant be restrained from diverting any of the waters of the lake through its pipes. Even if complainant's use of the water was wrongful, injunc- tive relief would be denied. Stock v. City of Hillsdale, 155 Mich. 375, 119 N. V/. 435. Aig.Pkop. — 35 546 . DERIVATIVE TITLES (Part 2 Tam of Qninilin t^^^ <^^P dpr ree of the rirnn't rntirl" sliniilrl he- af- fi rmed, w ith costs to complainant. McAlvay, C. J., and Kuhn and Steere, JJ., concurred with Brooke, J." 19 See Tabor v. Bradley, 18 N. T. 109, 72 Am. Dec. 49S (1S5S), wliere_a_iaslit to ^ flood remain ing laruls of the grantor was claimed to have passed bv im|f },fed grant ji n oil couveya jee of g^ tract of land with mill and milldaui thereon. The land conveyed was described by metes and bounds, with no men tion of the mill or dam. It appeared that the grantor had no know ledge of the existence of the mill and dam, and of course no knowledge of the flooding. See, also, Pwllbach Colliery Co. v. Woodman, [1015] A. G. 634, where prop- erty was leased with power to carry on thereon the trade of miners. Other premises were leased by the same landowner to a butcher. The colliery ceake, Law of Property in Land [Randall's Ed.J 24. See 29 L. R. A. (N. S.) 9G3 et seq. 548 DERIVATIVE TITLES (Part 2 (j^^U) McCULLOCK V. HOLMES. '^^^^^^<-j (Supreme Court of Missouri, 1802. Ill Mo. 445, 19 S. W. 1096.) Barclay, J. This is an action of ejectment involving the title to a piece of land in Lincoln county. Tlie facts are admitted. The case turns upon the effect to be given to the following clause in a deed from Oliver Holmes (the common source of title) and his wife to Azra A. Holmes, dated, April 11, 1855, and duly recorded about the same time, viz. : "To have and to hold * * * unto him the said Azra A. Holmes for and during his natural life and then to his two children, Laura Eliza and Mary Emily Holmes, and their heirs and assigns forever, and if either of said children shall die without issue in the lifetime of J^ their father, then all of said lands is to go to the survivor." , . The chronology of the principal facts, affecting the controversy, is as follows : First. Mary Emily Holmes died without issue, some years before Azra A. Holmes. Second. Azra died in April, 1888. Third. He left his widow, the defendant in possession, and his daughter, Laura Eliza, one of the plaintiffs, who has intermarried with Mr. McCullock, the other plaintiff. The fact that the limitation above quoted appears only in the "haben^ " dujn^clause of the conveyance to Azra A. Holmes does not deprive it of its legal force or effect. All parts of the deed should be considered ***'^' in gathering its meaning, and the true intent it designs to express, throughout, should be eft'ectuated. In the premises of this deed "A. A. Holmes" is named as grantee, while in the habendum the extent of his estate is defined, and the re- mainder now in consideration carved out. All parts of an instrument are to be construed as consistent with each other, if such construction be possible. Where land is conveyed to an individual, without adding to his name, as grantee, the word "heirs" or other words of inheritance, the fee thereby passes to him under the law of Missouri, "unless the in- tent to pass a less estate shall expressly appear or be necessarily im- plied in the terms of the grant." Rev. S't. 1889, § 8834. Thejntent to pass a less estate is very evident in the present case, and is lawfully expressed, Farrar v. Christy's Adm'rs (1857) 24 Mo. 453 ; Spyve v. Tophani (1802) 3 East, 115. Even under the strictest common-law rules of conveyancing, a stranger to those mentioned in the premises of a deed might be in- troduced in the habendum as a grantee in remainder. 1 Wood on Con- veyancing (6 Eng. Ed.) Habendum (B), p. 336. The limitation in the case at bar is not uncertain or obscure. Azra Ch. 5) ESTATES CREATED 549 took a life estate in possession. During its currency, one of the pos- sible remaindermen died. The other, the present plaintiff, survived Azra. She is plainly entitled to the estate, the contingency having been resolved in her favor. The trial court so held. Its judgment is affir m-_ ed. Sherwood, C. J., and Black and Brace, JJ., concur.^ 3 In Palmer v. Cook, 159 111. 300, 42 N. E. 796, 50 Am. St. Rep. 165 (1896) lands were conveyed by one Thomas Stewart to Ms two children. Following the description of the property was the follo\ving clause: "And I, Thomas Stewart, as for myself, retain possession and reserve the use, profits and full control during my life ; and further, in case either of the grantees dies with- out an heir, her interest to revert to the survivor." The court said : "This deed eifected an absolute fee simple conveyance by the first clause of the deed and vested the estate. By the last clause an attempt is made to mount a fee upon a fee, which can only be done by executory devise. Smith v. Kimbell, 153 111. 368, 38 N. E. 1029 (1894) ; Fowler v. Black, 136 111. 363. 26 N. E. 596, 11 L. E. A. 670 (1S91) ; Giiswold v. Hicks, 132 111. 494, 24 N. E. 63, 22 /^ni. St. Rep. 549 (1890). It is a further principle of construction of deeds, that if the terms used vest a fee in the first taker, other parts of the instrument showing an intention to give a less estate will not control. Carpenter v. Van Olinder, 127 111. 42, 19 N. E. 868, 2 L. R. A. 455, 11 Am. St. Rep. 92 (1889). Under the statute, the conveyance being to the grantee and her heirs and assigns, the terms have, in law, a definite meaning. By the use of terms of a definite legal meaning the intention can be determined from the language used. If that language means a certain thing and nothing else, then the only reasonable con- struction is that what was intended was expressed in the language used. The language used did not create an estate in joint tenancy nor a life estate. Un- der these principles this deed reserved to tlie grantor a life estate and vested a fee in the grantees, and the clause, 'and further, in case either of the grantees dies without an heir, her interest to revert to the survivor,' must be held to be inoperative, as a limitation of the fee." In Cover v. James, 217 111. 309, 75 N. E. 490 (1905), lands were conveyed to two of the grantoi'"s children, with the follomng provision immediately fol- lowing the description of the premises: "In case of the death of either A. Ford Cover or Bessie Cover, the other to have the whole of said property without litigation." A. Ford Cover died before Bessie Cover, and the question was whether the heirs of said A. Ford Cover took any interest. The court, inter alia, said : "Section 13 of chapter 30 of Hurd's Revised Statutes of 1903, page 441, provides that 'every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words or do not api^ear to have been granted, conveyed or devised by construction or operation of law.' Here the deed does expressly state that in case of the death of either of the grantees the survivor shall have the whole of the property, thus clearly limiting the es- tate granted to both jointly for life, with the right of survivorship. It is in- sisted, however, by counsel for appellees that this last provision cannot be giv- en effect because it does not appear in the granting clause of the deed, or, as is said, does appear in the habendum, and reliance is placed upon the case of Palmer v. Cook, 159 111. 300, 42 N. E. 796, 50 Am. St. Rep. 165 (1896). In that case a deed somewhat similar to the one now before the court was construed as conveying the fee simple title to the grantees, and it was held that the ex- pression, 'in case either of the grantees dies without an heir her interest to re- vert to the survivor,' was an attempt to mount a fee upon a fee, and was there- fore void. The granting clause of that deed was held to convey the fee sim- ple title under the provisions of section 9 of chapter 30, supra. If a fee simple title was in fact granted, it is clear that that estate could not be limited or qualified by the subsequent language. Merely because the deed was substan- tially in the form prescribed by section 9, however, a fee simple title was not necessarily conveyed. That section prescribes the form of the deed, and pro- vides that every deed substantially in that form shall be deemed and held to be a conveyance in fee simple to the grantee, etc. ; but it must be construed in 550 DERIVATIVE TITLES (Part 2 CARLLEE V. ELLSBERRY. (Supreme Court of Arkansas, 1907. S2 Ark. 209, 101 S. W. 407, 12 L. R. A. [N. S.] 956, lis Am. St. Rep. 60.) Battle, J; This case involves the construction of so much of a deed executed by John T. Hamblett and wife to Georgena EUsberry as is in the following words : "Know all men by these presents, That we, J. T. Hamblett and Cor- delia P. Hamblett,- his wife, for and in consideration of the sum of one dollar to us in hand paid, and for the love and affection we have connectiqn with section 1^, supra, under which, if a less estate he limited by express words or appear to have been granted, conveyed or devised by construc- tion or operation of law, the conveyaiue, not using words heretofore necessiiry to transfer an estate of iiilieritnnce. shall not be deemed to convey a fee sim- ple estate. * * * That the position of counsel for aiinellee and the decision of the conrt below do violence to his expressed intention must be conceded. In Mirtel v. Karl. i:« 111. 05. 24 N. E. 55*'., S I.. U. A. C5."5 (L^90), a warranty deed by John IMittel conveyed premises to 'Maria Jobst and Michael .lobst. her husband, and the survivor of them, in her or his own right.' In construing that deed, after holding that the words 'the survivor of them,' etc., could not be ignored, we say (i:!.*? 111. OS, 24 N. E. 554. S h. R. A. 655) : 'These words were placed in the deed by the contrarting piirties for a purpose, and they cannot arl)itrarily lie rejected. In the construction of written contracts it is the duty of the court to ascertain the intention of the parties, and the intention, when ascertained, must control; but in arriving at the intention, effect must be given to each clause, word or term emi)loyed by the party, rejecting none as meaningless or surplusage' — citing Lehndorf v. Cope, 122 111. 317, VA N. E. 505 (1887). And after discussing the question as to whether that deed convened an estate in joint tenancy, we further said (I'-VA 111. 70. '24 N. E. 5.55. 8 L. R. A. 655): "We think the language of the deed, when properly understood, will ad- ndt of but one construction, and that is, that the premises were conveyed to Maria and .Michael Jobst for life, with a contingent remainder in fee to the survivor. I5y the language of the grant, to "Michael Jobst and Maria Jobst, and the survivor of them, in his or her own right,'" it was doubtless intended that the one who should die first should take only a life estate in the premises, with the remainder in fee to the survivor and his heirs.' The authorities cited in support of this position, as well as the reasoning of the learned judge who wrote the opinion, fully supjmrted it. It is there further said: 'There is no way in which it can be held that Jobst and his wife took the fee as tenants in connnon without rejecting the clause in the deed providing that the survivor should take the fee, and we are aware of no rule of construction under which that can be done. As is said in Riggin v. Love, 72 111. 55:5 (lS74i a construction which requires us to reject an entire clause of the deed is not to be admitted except from unaveidable necessity: but the intention of the parties, as mani- fested by the language employed in the deed, should, so far as practicable, be carried into effect.' So in this case, whether the father understood the differ- ence between the estates in joint tenancy and tenancy in conunou or not, he marufestly did understand what his desire was, that is, that the survivor of his children, the grantees, should have the entire estate; and under the rule announced in Mittel v. Karl there is no difficulty in giving effect to that in- tention. We think the court below was in error in holding that A. Ford Cover and Bessie Cover took the estate as tenants in common and in sustaining the demurrer to the bill of the appellant, Bessie Cover. Under the views here ex- pressed it is clear that the coniplainanrs in the cross-bill were entitled to no relief under the same, and whether, technically, the motion to strike it from the tiles was proper or not, is unimportant." See, also, Baunian v. Stoller. 2;!5 111. 480. 85 N. E. 057 (1008); Buck v. Garber, 261 111. 378, 103 N. E. 1059 (1914); Graves v. AY heeler, 180 Ala. 412, 61 South. 341 (1913), ace. Ch. 5) ESTATES CREATED ■ 551 for our daughter, Georgena Ellsberry, we hereby convey, sell, give and bequeath to the said Georgena Ellsberry, and unto her heirs and assigns forever, the following lands lying and being situate in the county of Woodruff and State of Arkansas, to-wit : Lots numbered twelve (12), thirteen, (13) and fourteen (14) in block number fourteen (14) in the town of Augusta, to have and to hold the same unto the said Georgena Ellsberry and unto her heirs and assigns forever, with all the appurtenances thereto belonging. Provided, however, that should the said Georgena Ellsberry die without issue and before her husband, Wm. M. Ellsberry then the property herein conveyed is to revert unto the said Wm. M. Ellsberry." The granting clause of the deed conveys the lands described to the grantee in fee simple. The habendum defines the estate the grantee is to take to be the fee simple, with a proviso limiting the estate in cer- tain contingencies to a life estate. ThejDroviso or condition is repug-- jriantjto_the_grariting cliiuse. Which prevails? In Maker v. Lazell, 83 Me. 562, 22 Atl. 474, 23 Am. St. Rep. 795, the court said : "There is one rule pertaining to the construction of deeds, as an cient, general and rigorous^^s_any other. It is the rule that a grantor cannot destroy his own grant, however much he may modify it or load it with conditions, — the ru l e that, having onc e grant- ed an estate in his deed, no subsequent clause, even in the same deed, can operate to nullify it. 11 Bac. Abr. 665; Shep. Touch. 79, 102. We do not find that this rule has ever been disregarded, or even seri- ously questioned, by courts. We find it often stated, approved, and sometimes made a rule of decision. In Duke of Marlborough v. Lord Godolphin, 2 Ves. S'r. 74, Lord Chancellor Hardwicke, 'in whose judg- ments equity shone resplendent,' declared that the courts either of law or equ ity should not adopt such a construction of an instrument of de- vise as would defeat the interests given. In Cholmondeley v. Clinton, 2 Jac. & Walk. 84, which was a case most elaborately, argued and con- sidered, it was said by the court that where a limitation in a deed is perfect and complete, it cannot be controlled by intention collected from other parts of the same deed." To support this rule of construc- tion, the court cites and comments upon the following cases : Budd v. Brooke, 3 Gill (Md.) 198, 43 Am. Dec. 321 ; Ackerman v. Vreeland, 14 N. J. Eq. 23 ; Wilder v. Davenport, 58 Vt. 642, 5 Atl. 753 ; Cutler v. Tufts (Mass.) 3 Pick. 272; Wilcoxson v. Sprague, 51 Cal. 640; Green Bay & Mississippi Canal Co. v. Hewett, 55 Wis. 96, 12 N. W. 382, 42 Am. Rep. 701. In Green Bay & Mississippi Canal Co. v. Hewett, 55 Wis. 96, 12 N. W. 382, 42 Am. Rep. 701, Mr. Justice Lyon, delivering the opinion of the court, said : "Which of these two conflicting clauses in the deed of 1873 should prevail? This question must be determined by rules of law * * * governing the construction of deeds. One of these rules is that a deed is always construed most strongly against the gran- tor. 4 GreefarCruise, Real Prop. p. 352, tit. 32, ch. 20, § 13. Another /(^Cc ^ 552 DERIVATIVE TITLES (Part 2 is that where there are two clauses in a deed, and the latter is contra- dictory to the former, the former shall stand. This is an application of the_ancient rule or maxim that 'the first deed and the last will shall operate.' * * * jf ^^g subsequent clause in the deed of 1873 is regarded as a habendum, then we have this rule laid down by Citiise in the title above cited (chapter 21, %^75, 76): '\VlLere the habendum is repugnant and contrary to the premises, it is void, and the grantee will take the estate given in the premises. This is a consequence of the rule already stated, that deeds shall be construed most strongly against the grantor ; therefore he shall not be allowed to contradict or retract, by any subsequent words, the gift or grant made in the premises. Thus, if lands are given in the premises of a deed to A. and his heirs, habendum to A. for life, the habendum is void, because it is utterly repugnant to and irreconcilable with the premises.' " * * * * The conveyance in fee simple carries with it the power to dispose of the estate by deed or will. The power of alienation is an insepara- ble incident of such an estate. So the deed in question conveyed to Mrs. Ellsberry tlie estate in fee simple with the power to disposejof_it The limitation of it to a life estate was repugnant to the granting clause, and was void. , Reversed, and remanded for proceedings consistent with this opin- ion.^ / / / FIRST UNIVERSALIST SOCIETY v. BOLAND. (Supreme Judicial Court of aiassachusetts, 1892. 155 Mass. 171, 29 N. E. 524, 15 L. R. A. 231.) Bill in equity^ filed, in the Superior Court, for the sp ecific perform- ance of an agreement by the .plaintiff to sell and by the defendant to purchase land. The case was submitted to the Superior Court, and, 4 A portion of the opinion, in whicli tlie court reviews a number of cases, la omitted. 5 Prindle v. Orphans Home, 153 Iowa, 2.34. 133 N. W. 106 (1911), ace. But see Wilsob v. Terry, 130 ]\Iich. 73, 89 N. W. 566 (1902) ; Jacobs v. All Persons, etc., 12 Cal. App. 163, 106 Pac. 896 (1909) ; Midgett v. Meekins, 160 N. C. 42, 75 S. E. 728 (1912) ; Johnson v. Barden, 86 Vt. 19, S3 Atl. 721, Ann. Cas. 1915A, 1243 (1912) ; Wood v. Logue, 107 Iowa, 436, 149 N. W. 613 (1914) ; Ken- ner v. State (Arlv.) ISO S. W. 492 (1915). Lands were conveyed to X., "his heirs and assi,?ns forever, subject to the limitations hereinafter expressed as to part thereof," etc. In the habendum the estate of the grantee as to one-half Avas limited "to his own use, benefit, and behoof during his natural life, and at his decease * * * to descend to and the title thereof vested in the children" of said X. by him lawfully begot- ten. The question was as to the estate acquired by X. Tyler v. Moore, 42 Pa. 374 (1862). By deed lands were conveyed to M., "her children and assigns forever," with habendum to M., "her heirs and assigns forever." Held that M. took a fee simple, and not as tenant in common with her children. Bines v. Mansfield, 96 Mo. 394, 9 S. W. 798 (1888). Cf. Karclmer v. Hoy, 151 Pa. 383, 25 Atl. 20 (1892) ; Morton v. Babb, 251 111. 4S8, 96 N. E. 279 (1911). As to the propriety of declaring trusts in the habendum, see Nightingale v. Hidden, 7 R. I. 115 (1S62). Ch. 5) ESTATES CREATED 553 after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts, and was as follows : On April 9, 1842, Joseph D. Clark and twenty-five or thirty other persons formed the plaintiff society, with a constitution which adopted as the basis of its religious faith the profession of belief accepted by the General Convention of the Universalists at its session at Win- chester, New Hampshire, in 1803, and provided for three trustees to be the executive power of the society and to see that all votes of the society were carried out. On April 3, 1854, Clark for the expressed consideration of nine hundred dollars conveyed the land in question by a dee d containing the usual covenants to the plaintiff society, "to have and to hold to the said First Universalist Society and their as- signs, so long as said real estate shall by said society or its assigns be devoted to the uses, interests, and support of those doctrines of the Christian religion embraced in the Confession of Faith adopted by the General Convention of Universalists held at Winchester, New Hamp- shire, in the year eighteen hundred and three. And when said real 'estate shall by said society or its assigns be diverted from the uses, in- terests, and support aforesaid to any other interests, uses, or purposes than as aforesaid, then the title of said society or its assigns in the same shall forever cease, and be forever vested in the following named persons, and such persons shall be the legal representatives of any of such persons at the time the same so vests as aforesaid in the following undivided parts and proportions, to wit: to Stephen M. Whipple ^*°/iooo, Alanson Cady ^^''/looo, John F. Arnold ^^Yiooo, Joseph D. Clark ^"/looo. [Here followed the names of thirty-seven others after each of which was placed a fraction in thousandths.] To have and to hold the above granted premises, with the privileges and appurtenances thereto belonging, to the said grantees, their heirs and assigns, to them and their use and behoof forever, as aforesaid." On December 16, 1885, Clark executed and delivered to the plaintiff society a quitclaim deed of the same premises, "intending hereby to vest in said society absolutely and in fee simple the title to said prem- ises free and discharged of all the conditions, restrictions, and re- straints as to the uses, interests, and purposes for which said premises are to be used and enjoyed by said society, as set forth in my said deed of April 3, 1854, and to enable said society to sell, lease, or otherwise use and dispose of said premises to all intents and purposes as if no restraints or contingent interests had been created by my said deed or referred to therein." Upon the land so conveyed to the plaintiff a church was erected, which from the time of its erection to the present time has .been occu- pied and used for religious worship by the plaintiff society, without any change in the profession of faith mentioned in the deed of April 3, 1854, or in its constitution. The agreement in question was made by the parties on April 20, 1891, but the defendant, upon the tender of a deed to him from the plaintiff, refused to cai*ry it out, on the ground. 554 DERIVATIVE TITLES (Part 2 among others, that the plaintiff society never was seised in fee simple, but at most obtained only a qualified or conditional fee, and could not convey a good and clear title. The parties having ascertained that between April 3, 1854, and December 16, 1885, C[ark had gone into bankruptcy, the plaintiff waiv- ed any rights which it might have under the deed of December 16, 1885, and relied for its title upon the deed dated April 3, 1854. Ar.LEX, J. The limitation over, which is contained in the deed of Clark to the plaintiff in 1854, is void for remoteness. Wells v. Heath, 10 Gray, 17, 25, 26; Brattle Square Church v. Grant, 3 Gray, 142, 152, 63 Am. Dec. 72}i. The fact that the grantor designated himself as one of the persons amongst many others to take under this limi- tation, does not have, the effect to make the limitation valid. He was to take with the rest, and stand upon the same footing with them. Where there is an invalid limitation over, the general rule is that the preceding estate is to stand, unaffected by the void limitation. The estate becomes vested in the first taker, according to the terms in which it was granted or devised. Brattle Square Church v. Grant, 3 Grav, 142, 156, 157, 63 Am. Dec. 725; Sears v. Russell, 8 Gray, 86, 100; Fosdick v. Fosdick, 6 Allen, 41, 43; Lovering v. Worthington, 106 Mass. 86, 88; Lewis on Perpetuity, 657. There may be instances in which a void limitation might be referred to for the purpose of giv- ing a construction to the language used in making the prior gift, pro- vided any aid could be gained thereby. In the present case, we dc not see that any such aid can be gained. The estate given to the first taker does not depend at all upon the validity or invalidity of the limitation over, and the construction of the language used is not aided by a reference thereto. The grant to the plaintiff was to have and to hold, etc., "so long as said real estate shall by said society or its assigns be devoted to the uses, interests, and support of those doctrines of the Christian religion," as specified. "And when said real estate shall by said society or its assigns be diverted from the uses, interests, and support aforesaid to any other interests, uses, or purposes than as aforesaid, then the title of said society or its assigns in the same shall forever cease, and be forever vested in the following named persons," etc. These words do not grant an absolute fee, nor an estate on condi-^ tion, but an estate which is to continue till the happening of a certain event, and then to ceas_e. That event may happen at any time, or it may never happen. Because the estate may last forever, it is a fee. Because it may end on the happening of the event, it is what is usually called a determinable or qualified fee. The grant was not upon a condition subsequent, and no re-entry would be necessary; but by the terms of the grant the estate was to continue so long as the real estate should be devoted to the specified uses, and when it should no longer be so devoted, then the estate would cease and deter- mine by its own limitation. Numerous illustrations of words proper to <3h. 5) ESTATES CREATED 555 create such qualified or determinable fees are to be found in the books, one of which, as old as Walsingham's Case, 2 Plowd. 557, is "as long as the church of St. Paul shall stand." Brattle Square Church v. Grant, 3 Gray, 142, 147, 63 Am. Dec. 725; Easterbrooks v. Tillinghast, 5 Gray, 17; Ashley v. Warner, 11 Gray, 43; Attorney General v. Mer- rimack Manuf. Co., 14 Gray, 586, 612; Fifty Associates v. Howiand, 11 Mete. 99, 102; Owen v. Field, 102 Mass. 90, 105; 1 Washb. Real Prop. (3d Ed.) 79; 2 Washb. Real Prop. (3d Ed.) 20, 21 ; 4 Kent, Com. 126, 127, 132, note; 2 Crabb, Real Prop. §§ 2135, 2136. 2 Flint. Real Prop. 230, 232; Shep. Touchst. 121, 125. A question or doubt, however, has arisen, though not urged by counsel in this case, whether after all there is now any such estate as a qualified or determinable fee, or whether this form of estate was done away with by the statute Quia Emptores. See Gray, Rule against Perpetuities, §§ 31-40, where the question is discussed and au- thorities are cited. We have considered this question, and whatever may be the true solution of it in England, where the doctrine of tenure still has some significance, we think the existence of such an estate as a qualified or determinable fee must be recognized in this country, and such is the general consensus of opinion of courts and text writ- ers. Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159, 168; Leonard V. Burr, 18 N. Y. 96 ; Gillespie v. Broas, 23 Barb. (N. Y.) 370 ; State V. Brown, 27 N. J. Law, 13; Henderson v. Hunter, 59 Pa. 335 ; Wig- gins Ferry Co. v. Ohio & Mississippi Railway, 94 111. 83, 93; 1 Washb. Real Prop. (3d Ed.) 76-78; 4 Kent, Com. 9, 10, 129. See, also, of English works in addition to citations above, Shep. Touchst. 101; 2 Bl. Com. 109, 154, 155; 1 Cruise Dig. tit. 1, §§ 72-76; 2 Flint. Real Prop. 136-138; 1 Prest. Est. 431, 441; Challis, Real Prop. 197-208. Since the estate of the plaintiflf may determine, and since there is no vaHd limitation over, it follows that there is a possibility of re- verter in the original grantor, Claik. This is similar to, though not quite identical with, the possibility of reverter which remains in the grantor of land upon a condition subsequent. The exact nature and incidents of this right need not now be discussed, l^ut it repre- sents whatever is not conveyed by the deed, and it is the possibility that the land may revert to the grantor or his heirs when the granted estate determines. Challis, Real Prop. 31, 63-65, 153, 174, 198, 200, 212; 1 Prest. Est. 431, 471; Newis v. Lark, 2 Plowd. 403, 413; Shep. Touchst. 120; 2 Washb. Real Prop. (3d Ed.) 20, 579: 4 Kent, Com. 10; Smith v. Harrington, 4 Allen, 566, 567; Attorney General v. Merrimack Manuf. Co., 14 Gray, 586, 612; Brattle Square Church v. Grant, 3 Gray, 142, 147-150, 63 Am. Dec. 725; Owen v. Field, 102 Mass. 90, 105, 106; Gillespie v. Broas, 23 Barb. (N. Y.) 370; Gray, Rule against Perpetuities, §§ 33, 34, 39, and cases cited. Clark's possibility of reverter is not invalid for remoteness. It has been expressly held by this court, that such possibility of reverter 556 DERIVATIVE TITLES (Part 2 upon breach of a condition subsequent is not within the rule against perpetuities. Tobey v. Moore, 130 Mass. 448; French v. Old South Society, 106 Mass. 479. If there is any distinction in this respect be- tween such possibility of reverter and that which arises upon the de- termination of a qualified fee, it would seem to be in favor of the latter. But they should be governed by the same rule. If one is not held void for remoteness, the other should not be. The very many cases cited in Gray, Rule against Perpetuities, §§ 305-312, show conclusively that the general understanding of courts and of the pro- fession in America has been that the rule as to remoteness does not ap- ply; though the learned author thinks this view erroneous in prin- ciple. We have no occasion to consider whether the possibility of re- verter would or would not pass to an assignee in bankruptcy or in- solvency, because the plaintiff expressly waived any right it might have under the second deed from Clark, and we have not, therefore, felt at liberty to consider the second deed, and have been confined to the construction and effect of the first deed. See Rice v. Boston & •Worcester Railroad, 12 Allen, 141. This being so, the plaintiff's titk must be deemed imperfect, and the entry must be: Bill dismisse d. -ff-v AU SECTION 2.— ESTATES IN FEE TAIi; STATUTE DE DONIS CONDITIONALIBUS. First, concerning lands that many times are given upon condition, that is, to wit, where an}'- giveth his land to any man and his wife, and to the heirs begotten of the bodies of the same man and his wife, with such condition expressed that if the same man and his wife die without heir of their bodies between them begotten, the land so given shall revert to the giver or his heir; in case also where one giveth lands in free marriage, which gift hath a condition annexed, though it be not expressed in the deed of gift, which is this, that if the hus- band and wife die without heir of their bodies begotten, the land so gi,ven shall revert to the giver or his heir ; in case also where one giveth land to another and the heirs of his body issuing, it seemed very hard and yet seemeth to the givers and their heirs, that their will being expressed in the gift was not heretofore nor yet is observed. In all the cases aforesaid after issue begotten and born between them, to whom the lands were given under such condition, heretofore such feoffees had power to aliene the land so given, and to disinherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift. And further, when the issue of such Ch. 5) ESTATES CREATED 557 feoffee is failing, the land so given ought to return to the giver or his heir by form of gift expressed in the deed, though the issue, if any were, had died; yet by the deed and feoffment of them, to whom land was so given upon condition, the donors have heretofore been barred of their reversion of the same tenements which was directly repugnant to the form of the gift : wherefore our lord the king, per- ceiving how necessary and expedient it should be to provide remedy in the aforesaid cases, hath ordained, that the will of the giver ac- cording to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was ^iven under such condition shcill have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail, either by reason that there is no issue at all, or if any issue be, it fail by de ath.-the.,heir„of such issue failing. . Neither shall the second husband of any such woman from henceforth have anything in the land so given upon condition after the death of his wife, by the law of England, nor the issue of the second husband and wife shall succeed in the inheritance, but immediately after the death of the husband and wife, to whom the land was so given, it shall come to their issue or return unto the giver or his heir as before is said. And forasmuch as in a new case new remedy must be provided this manner of writ shall be granted to the party that will purchase it. * * * The writ whereby the giver shall recover when issue fail- eth is common enough in the chancery. And it is to wit that this statute shall hold place touching alienation of land contrary to the form of gift hereafter to be made, and shall not extend to gifts made before. And if a fine be levied hereafter upon such lands it shall be void in the law, neither shall the heirs or such as the reversion belongeth unto, though they be of full age, within England, and out of prison, need to make their claim. Westm. II, c. 1, 13 Edw. I, A. D. 1285. LITTLETON'S TENURES. Tenajitjn fee_ tail is by force of the statute of W. 2, cap. 1, for be- fore the said statute, all inheritances were fee simple ; for all the gifts which be specified in that statute were fee simple conditional at the common law, as appeareth by the rehearsal of the same statute. And now by this statute, tenant in tail is in two manners, that is to say, tenant in tail general, and tenant in tail special. Section 13. 558 DERIVATIVE TITLES (Part 2 COKE UPON LITTLETON. "Before the said statute all inheritances were fee simple." Here fee simple is taken in his large sense, including as well conditional or qualified, as absolute, to distinguish them from estates in tail since the said statute. Before which statute of donis conditionalibus, if land had been given to a man, and to the heirs males of his body, the having of an issue female had been no performance of the condition ; but if he had issue male, and died, and the issue male had inherited, yet he had not had a fee simple absolute; for if he had died without issue male, the donor should have entered as in his reverter. By hav- ing of issue, the condition was performed for three purposes : First, to alien : Secondly, to forfeit : Thirdly, to charge with rent, common, or the like. But the course of descent was not altered by having issue ; for if the donee had issue and died, and the land had descended to his issue, yet if that issue had died (without any alienation made) without issue, his collateral heir should not have inherited, because he was not within the form of the gift, viz. heir of the body of the donee. Lands were given before the statute in frank-marriage, and the donees had issue and died, and after the issue died without issue; it was adjudged, that his collateral issue shall not inherit, but the donor shall re-enter. So note, that the heir in tail had no fee simple absolute at the common law, though there, weje^ divers descents, If lands had been given to a man and to his heirs males of his body, and he had issue two sons, and the eldest had issue a daughter, the daughter was not inheritable to the fee simple, but the younger son per formam doni. And so if land had been given at the common law to a man and the heirs females of his body, and he had issue a son and a daughter, and died, the daughter should have inherited this fee simple at the common law ; for the statute of donis conditionalibus createth no estate tail, but of such an estate as was fee simple at the common law, and it is descendable in such form as it was at the com- mon law. If the donee in tail had issue before the statute, and the is- sue had died without issue, the alienation of the donee at the common law, having no issue at that time, had not barred the donor. If donee in tail at the common law had aliened before any issue had, and after had issue, this alienation had barred the issue be- cause he claimed a fee simple; yet if that issue had died without issue, the donor might re-enter, for that he aliened before any issue, at what time he had no power to alien to bar the possibility of the donor. In gifts in tail these words (heirs) are as necessary, as in feoffment^ and grants ; for seeing every estate tail was a fee simple at the com- mon law, and at the common law no fee simple could be in feoffments and grants without these words (heirs), and that an estate in tail is but a cut or restrained fee, it followeth, that in gifts in a man's life- time no estate can be created without these words (heirs), unless it Ch. 5) ESTATES CREATED 559 be in case of frank-marriage, as hereafter shall be shewed. 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 >et if a man give lands to A. et hseredibus de corpore suo, the remainder to B. in forma prsedicta, this is a good estate tail to B. for that in forma prasdicta 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 preedicta, this remainder is void for the uncertainty. But if the remainder had been, the remainder to C. in eadem forma, this had been a good estate tail ; for idem semper proximo antecedenti ref ertur. If a man give lands or tenements to a man, et semini suo, or exitibus vel prolibus de corpore 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 forman in charta doni sui manifeste expressam de caetero observetur, 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 exitibus de corpore suo legitime procreatis, or semini suo, he hath but an estate for life, for that there wanteth words of inheritance. "Of his body." These words are not so strictly required but that they may be expressed by words that amount to as much : for the ex- ample that the statute of W. 2 putteth hath not these words (de cor- pore) but these words (haeredibus) viz. : Cum aliquis dat terram suam alicui viro et ejus uxori et hseredibus de ipsis viro et muliere procreatis. If lands be given to B. et hseredibus 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 corpore). 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 hseredibus de carne sua, or to a man et haeredibus de se. In all these cases these be good estates in tail, and yet these words de corpore are omitted. It is holden by some opinions, that if there be grandfather, father and son, and lands are given to the grandfather, and to his heirs be- gotten by the father, the father dieth, the grandfather dieth, the son is in as heir to the grandfather begotten upon the body of his father, and the wife of the grandfather in that case shall be endowed. But certain it is, that in some cases one shall have the land per formam doni that is not issue of the body of the donee, which see Section 30. "Begotten." This word may in many cases be omitted or expressed by the like, and yet the estate in tail is good : as hseredibus de carne, hseredibus de se, hsered' quos sibi contigerit, &c. as is aforesaid; and where the word of Littleton is, ingendered or begotten, procreatis, yet if the word be procreandis, or quos procreaverit, the estate in tail is good ; and as procreatis shall extend to the issues begotten afterwards, so procreandis shall extend to the issues begotten before. Co. Litt. 19a, 20a, b. 560 DERIVATIVE TITLES (Part 2 EWING V. NESBITT. (Supreme Court of Kansas, 1913. SS Kan. 70S, 129 Pac. 1131.) BuRCH, J. In the year 1893 John Ewing made his will. The fourth paragraph reads as follows : "Fourth: I will and bequeath to my daughter, Mary A. Nesbitt, nee Ewing, and to the heirs of her body, the south half (y^) of the north- west quarter (i/4) of section No. twenty-one (21), township thirteen (13), of range twenty-four (24), in Johnson county, Kansas." Devises using the same language were made to the testator's other children, four in number. Besides these the will contained four other devises, which were expressly stated to be "free and clear of all en- tailment," thus clearly indicating the intention of the testator to cre- ate estates tail by the phraseology employed in paragraph 4 and those like it In 1895 John Ewing died, leaving as his heirs the five chil- dren who were the beneficiaries of his will. The will was duly pro- bated, the estate was administered and closed, and Mary A. Nesbitt entered into possession of the tract of land devised to her. In the year J 909 she died without having borne children and was survived by her husband, William J. Nesbitt, who continued in possession of the land. Soon after Mary A. Nesbitt's death her brothers and sisters commenced an action of ejectment, and for rents and profits, against William J. Nesbitt, claiming to be owners in fee simple. He answered claiming a one-fifth interest in the land and praying for partition. Judgment was rendered for the defendant and the plaintiffs appeal^ The will contained a residuary clause in which the testator gave to his children surviving him, share and share alike, "all other property, goods, chattels, moneys, stocks, credits, and effects" of which he might die seized. The defendant claims that his wife was the donee of an estate tail ; that the donor retained a reversionary interest in fee sim- ple expectant upon the estate tail; that if, by virtue of the residuary clause of the will, this reversion was not disposed of it descended, upon the death of the donor, to his heirs, one of whom was his daugh- ter, Mary A. Nesbitt; and that upon her death the defe ndant, as her surviving husbajd,, took her ^.hare^af the fee.^which was gneifif tli^.. If, however, the residuary clause of the will was effectual to devise the reversion to the testator's children, Mary A. Nesbitt took a one-fifth interest which, upon her death, descended to the defendant. Under either theory the defendant's claim to a one-fifth interest in the land is valid if the law of tliis state recognizes estates tail as they existed under the common law of England at the time of the colonization of this country. Under the early common law a grant to a man and the heirs of his body was a grant of a fee on condition that he had heirs of his body. The fee so granted was designated a conditional fee. If the donee Ch. 5) ESTATES CREATED 561 had no heirs of his body, the condition was not performed arid the land reverted to the donor. If heirs of the donee's body were bom, the condition was regarded as performed and the donee was at liberty to make a conveyance which would bar him, his issue, and the donor's reversion. He could likewise charge the land with rents and encum- brances which would bind his issue, and the estate was forfeitable for his treason. If the condition were performed but the donee made no conveyance, the land descended, upon his death, to the specified issue, who were at liberty to convey. If they made no conveyance the land reverted to the donor. If the condition were performed but the issue died, and the donee then died without having made a con- veyance, the land reverted to the donor. In order to_bar J:he p os- sibility of reverter to the donor and to restore the descent to its or- • dinary course under the common law, donees of conditional fees were in the habit of making conveyances as soon as issue was born and taking back warranty deeds. To stop this practice, which evaded the condition and defeated the intention of the donor, the nobility of the realm, who were desirous of perpetuating family possessions, procured the passage of the statute of Westminster II, known as the statute y_ _^de donis conditionalibus." 13 Edw. I, c. 1, June 28, 1285. This. "^^ statute took away, the power of alienation and declared that the will of the donor, plainly expressed, should be observed, and that tenements givelrTto a man and the heirs of his body should go to his issue, if there were any, and if not should revert to the donor. The" judges inter- preted this statute to mean that the donee no longer took a conditional fee capable of being disposed of as soon as issue was bom, but that he took a particular estate, denominated an estate tail, and that in- stead of a possibility of reverter only remaining in the donor, he had a revers ion in fee simple expectant upon the failure of issue. Some of the social consequences of this statute are thus described by Black- stone : "Children grew disobedient when they knew they could not be set aside ; farmers were ousted of their leases made by tenants in tail ; for if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited ; creditors were defrauded of their debts ; for, if a tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth ; innumerable latent entails were pro- duced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full : and treasons were encouraged, as estates-tail were not liable to forefeiture, longer than for the tenant's life. So that they were justly branded, as the source of new contentions, and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm." 2 Commentaries, *116. Notwithstanding these mischiefs, the statute forms one of the fun- Aig.Prop. — 36 5G2 DERIVATIVE TITLES (Part 2 damental institutes of the land law of England which three and a quar- ter centuries later was transplanted in the New World. Before the settlement at Jamestown, in the fourth year of James I (1607), a number of statutes had been passed whereby the privileges attending estates tail were much abridged They were made forfeit- able for treason. 26 Henry VIII, c. 13. Certain leases by the tenant in tail not prejudicial to the issue were allowed to be good in law. 32 Henry VIII, c. 28. The statute of fines (4 Henry VII, c. 24) was construed to permit the tenant in tail and his heirs to be barred by levy- ing a fine {32 Henry VIII, c. 36). Such estates were chargeable with the payment of certain debts due the king (33 Henry VIII, c. 39), and by construction of the statute, 43 Eliz. c. 4, an appointment to charitable uses by a tenant in tail was held to be good, 2 Bl. Com. 117 et seq. The most serjous blow, however, to the evils fostered by es- tates tail under the statute de donis was struck by a bold piece of judicial legislation. In Taltatum's case, reported in Year Book. 12 Edw. IV, 19 (1472), the judges, upon consultation, held that a com- mon recovery suffered by a tenant in tail accomplished the complete destruction of the estate tail.. This mode of barring estates tail is thus described in 1 Washburn on Real Property (6th Ed.) § 186: "This was a fictitious suit brought in the name of the person who was to purchase the estate, against the tenant in tail who was willing to convey. The tenant, instead of resisting this claim himself, under the pretence that he had acquired his title of some third person who had warranted it, vouched in, or, by a process from the court, called his third person, technically the vouchee, to come in and defend the title. The vouchee came in as one of the dramatis personce of this judicial farce, and then without saying a word disappeared and was defaulted. It was a principle of the feudal law adopted thence by the common law, that if a man conveyed lands with a warranty, and the grantee lost his estate by eviction by one having a better title, he should give his warrantee lands of equal value by way of recompense. And as it would be too barefaced to cut off the rights of reversion as well as of the issue in tail, by a judgment between the tenant and a stranger, it was gravely adjudged, 1st, that the claimant should have the land as having the better title to it ; and 2d, that the tenant should have judgment against his vouchee to recover lands of equal value on the ground that he was warrantor, and thus, theoretically, nobody was harmed. If the issue in tail or the reversioner, or remainder-man, lost that specific estate, he was to have one of equal value through this judgment in favor of the tenant in tail, whereas in fact the vouchee was an irresponsible man, and it was never expected that he was anything more than a dummy in the game. The result of this, which Blackstone calls *a kind of pia fraus to elude the statute De Donis,' was that the lands passed from the tenant in tail to the claimant in fee simple, free from the claims of reversioner, remainder-man, or Ch. 5) • ESTATES CREATED 5G3 issue in tail, and he either paid the tenant for it as a purchaser, or conveyed it back to him again in fee-simple." The precedent of fictitious suits as means of acquiring or conveying property was found in the Roman law, and the practice of resorting to them was supposedly introduced in England by the clergy to evade the statute of mortmain. Spence's Equitable Jurisdiction of the Court of Chancery, p. 141, note. The solemn piece of jugglery already described later became more involved. "Complex, however, as the proceedings above related may appear, the ordinary forms of a common recovery in later times were more complicated still ; for it was found expedient not to bring the collusive action against the tenant in tail himself, but that he should- come in as one vouched to warranty. The lands were, therefore, in the first place conveyed, by a deed called the recovery deed, to a person against whom the action was to be brought, and who was called the tenant to the praecipe or writ. The proceedings then took place in the Court of Common Pleas, which had an exclusive jurisdiction in all real actions. A regular writ was issued against the tenant to the prrecipe by another person, called the demandant; the tenant in tail was then vouched to warranty by the tenant to the praecipe. The tenant in tail, on being vouched, then vouched to warranty in the same way the crier of the Court, who was called the common vouchee. The demandant then craved leave to imparl or confer with the last vouchee in private, which was granted by the Court; and the vouchee, having thus got out of Court, did not return; in consequence of which judgment Vvas given in the manner before mentioned, on which a regular writ vyas directed to the sheriff to put the demandant into possession." Williams on Real Property (17th Ed.) p. 108. In all cases there was an agreement or understanding that the person who acquired an estate tail by means of a common recovery should pay for it, or convey it to the original tenant in tail in fee simple, or dispose of it as such tenant might direct. The result was that estates tail and all remainders over and the reversion were effectually barred As Blackstone said, by long acquiescence and use, these recoveries came to be looked upon as a legal mode of conveyance by which a tenant in tail might dispose of his land. 2 Com. *117. This rightof convey- ance became, in contemplation of the law, an inherent and j^nseparable~ incident of an estate tail and covenants and conditions attempting to ^e^train the exercise of the tight were held to be void. 1 Washburn on Real Property (6th Ed.) § 188. The same purpose was accomplished by the equally fictitious proceeding of fine. In volume 4 of his Commentaries (14th Ed.) p. *14, Chancellor Kent said : "Estates tail were introduced into this country with the other parts of the English jurisprudence, and they subsisted in full force before our Revolution, subject equally to the power of being barred by a fine or common recovery." 564 DERIVATIVE TITLES (Part 2 These estates are now very generally changed by legislation into fee simples, or reversionary estates in fee simple, or may be converted intq_ fee simples by ordinary conve3^ance, 2 Bl. Com. 119 (Cooky's note). In the pages following the above quotation from Kent much of this legislation is referred to. The territorial legislature of 1855 passed an elaborate act relating to conveyances. Stat, of Kan. Terr, 1855, ch. 26. Section 5 of this act reads as follows : "That from and after the passage of this act, where any conveyance or devise shall be made whereby the grantee or devisee shall become seized in law or equity of such estate, in any lands or tenements, as under the statute of the tliirteenth of Edward the first, (called the stat- ute of entails) would have been held an estate in fee tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over and right in such premises, and no other, as a tenant for life thereof would have by law ; and upon the death of such grantee or devisee, the said lands and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common, in fee ; and if there be only one child, then to that one, in fee ; and if any child be dead, the part which would have come to him or her shall go to his or her issue ; and if there be no issue, then to his or her heirs." This, of course, constituted a deliberate legislative modification of the common law relating to estates tail. In 1859 the territorial legis- lature completely revised the act of 1855 relating to conveyances, mak- ing radical changes in its substance and content. Laws 1859, ch. 30. The subject matter of the section quoted was entirely omitted and nothing whatever was substituted for it either in tlie revision or in any other statute. The result was that section 5 was repealed by implica- tion, and since the legislature had its attention specially directed to es- tates tail by that section the purpose evidently was to restore the com- mon law on the subject. This intention is made more apparent by the passage of the following act at the same session : "The common law of England and all statutes and acts of Parlia- ment in aid thereof, made prior to tlie fourth year of James the First, and which are of a general nature, not local to that kingdom and not repugnant to or inconsistent with the constitution of the United States and the act entitled 'An act to organize the Territory of Nebraska and Kansas,' or any statute law which may from time to time be made or passed by this or any subsequent Legislative Assembly of the Ter- ritory of Kansas, shall be the rule of action and decision in this Ter- ritory, any law, custom or usage to the contrary notwithstanding." Laws 1859, ch. 121, § 1. The constitution adopted in July, 1859, under which the state was admitted to the Union on January 31, 1861, contains nothing which bears upon the subject either directly or remotely, and the legislature has not since dealt with it. Nothing is to be found in the acts relatins: Ch. 5) ESTATES CREATED 565 to conveyances, descents and distributions, or wills, incompatible with the existence of such estates, and in their unfettered form such estates are not out of harmony with the conditions and wants of tlie people of Kansas. On the other hand, they exactly meet the requirements of tes- tators in the situation of John Ewing. He desired to give his daugh- ter an estate for life, in order to secure to her a home and some meas- ure of comfort and welfare while she lived. After that he desired that the remainder should go to her children in fee. But h e did not desire that his _^9n-in-la_w should take the whole gift should she die childless,.to be enjoyed by him and perhaps a strange second wife and their chi]- dren. The court knows of no reason in law, morals, or public policy why these sentime nts should not be respected, and they were clearly and fully expressed by tlie language of the will, interpreted by the common law. The overweening propensity to perpetuate family name and family property which made estates tail so obnoxious in the middle ages is fairly curbed by the right of a tenant in tail to convert his ten- ancy into a fee simple, and is not a menace to the general welfare of the people of this state ; and it will be remembered that this right be- came one of the characteristics of the estate. Fines and recoveries, however, are not adapted to any of our needs, are inconsistent with the code of civil procedure and consequently can not be resorted to, as por- tions of the common law, in aid of the general statutes of this state. Gen. Stat. 1909, § 9850. The effect of these indirect, fictitious and operose proceedings was merely that of a deed of record, and the same end may now be accomplished by an ordinary conveyance. The fiction and the form alone are obsolete. The substance of the proceeding — a conveyance — and the essential character of the estate tail — the right to convert the estate into a fee simple by a conveyance — are preserved. If, therefore, Mary A. Nesbitt had chosen, in her lifetime, to make_a conveyance of the land devised to her, she would thereby have barred herself, her issue, born and unborn, and her father's reversion. While the mere possibility of a reverter such as attended conditional gifts under the ancient common law is not a subject of disposal by will, reversions in fee under the statute de donis may be devised. The re- sult is that Mary A. Nesbitt was given by the will an estate tail in the land in controversy. She also took by virtue of the residuary clause of the will, one-fifth of the reversion in fee expectant upon her death without issue. Upon_ her__ death this interest passed to h er husband, the, defend ant. ■ The judgment of the district court is affirmed.' 6 Estates in fee tail are recognized in Delaware as still subsisting. In Haz- zard ^. Hazzard (Del. Super.) 94 Atl. 905 (1915), it was held that upon a levy and sale under an execution against a tenant in tail the purchaser acquired a fee simple ; the statute (Rev. Code Del. 1915, § 4365) providing that such pur- chaser should acquii'e such estate as the judgment debtor might convey. By section 3235, Rev. Code 1915, it is provided that a person having an estate tail shall have power to alien the lands in fee simple or for other less estate by deed. See, however, the same case reversed in 97 Atl. 233 (1916). 5CG • DERIVATIVE TITLES (Tart 2 DUNGAN V. KLINE. (Supreme Court of Ohio, 1010. 81 Oliio St. 371, 90 N. E. 93S.) On October 27, 1906. Etta Kline commenced an action in tlie court of common pleas of Pickaway county against the plaintiff in error, Harriet Dungan and others, asking for the partition ot certain real estate in her petition described. Thereafter, to-\vit, on November 22, 1906, Adolph G. Wilson also brought suit in said court of common pleas against said Harriet Dungan and others, asking partition of the same lands. On motion these cases were consolidated and tried as one case. The lands of which partition was asked consisted of three tracts, two of which, by the will of Titus Dungan, had been devised to "Eliza- beth Wilson and the heirs of her body," and the other tract had been devised to said "Elizabeth Wilson and the heirs of her body" by one ]\Iary Ann Kirkendall. The devisors Titus Dungan and Mary Ann Kirkendall both died prior to June 18, 1883, and the will of each had been duly admitted to probate prior to that time. The devisee Eliza- beth Wilson had seven children, among whom were two sons, William T. and George H. Wilson. William T. Wilson died on January 16, 1887, his mother Elizabeth Wilson surviving him. She died October 27, 1906. On July 4, 1878, during the lifetime of his mother, William T. Wilson deeded to one George Dungan an undivided one-seventh inter- est in the premises which had been devised to Elizabeth Wilson and the heirs of her body, and thereafter said George Dungan deeded the same to the plaintiff in error, Harriet Dungan. On June 18, 1883, George H. Wilson, his mother being then in full life, also deeded an undivided one-seventh interest in said lands to George Dungan, which interest was subsequently deeded by said George Dungan to one John Schleyer and by the latter to Harriet Dungan, the plaintiff in error. George H. Wilson died in October, 1896, ten years prior to the death of his mother Elizabeth Wilson. The deeds of William T. and George H. Wilson, although containing no covenants of general warranty, con- tained recitals that would perhaps estop each of them, if living, from asserting title to the property therein described. The controversy in this case is between the children of William JT. and George H. Wilson on the one side, and Harriet Dungan the plajn- tiff in error on the other side. The children of William T. and George H. Wilson claim to be the owners of, and entitled to such in- terest in the real estate to be partitioned, as would have descended to their fathers WilHam T. and George H. Wilson respectively, if they had survived their mother Elizabeth Wilson, the first donee in tail.- Harriet Dungan, plaintiff' in error, claims title to the same premises under arid by virtue of the alleged conveyances made as aforesaid by said William T. and George H. Wilson in their lifetime, and she fur- ther contends that the children of the said William T. and George .H. Wilson, because of the recitals in said conveyances, are now estopped from claiming any interest in or title to the premises sought to be par- Ch. 5) ESTATES CREATED 5G7 titione d. In both the court of common pleas and the circuit court — to which latter court the case was taken on appeal — this claim of Har- riet Dungan was determined against her. She now prosecutes error to this court asking a reversal of the judgment of the circuit court. Crew, J.^ If the estate tail devised to Elizabeth Wilson was not alienable by tlie issue in tail during her life, subject to her tenancy therein, then the grants made by William T. Wilson and George H. Wilson, who both died before their mother, were wholly void and no estoppel thereunder can be invoked against their children. Therefore the decision of this case, upon the facts as presented by the record herein, depends primarily upon whether or not William T. and George H. W ilson during the lifetime of their mother, wei"e severally seized of a fee simple estate in the' premises which they respectively assumed to convey to George Dungan. That under the wills of Titus Dungan and Mary Ann Kirkendall, Elizabeth Wilson, as devisee, took an es- tate tail in the premises in controversy, is conceded, and the contention of Harr iet JDungan, plaintiff in error, is, that under the devises therein ■ ■ madejo, Elizabeth Wilson and the heirs of her body, that William T. and Ge orge H. Wilson as her cliildren, upon the death of said testa- t ors, e ach immediately, by force of the provisions of Section 4200, Re^ vised Statutes, became entitled to and vested with an absolute estate in^fee simple to a one-seventh part of the premises so devised to their mother, Elizabeth Wilson, as first donee in tail. Onjhe other hand, it ■ ,'^, C^^ is claimed by the children of William T. and George H. Wilson, all of -w/" whom are defendants in error herein, that their fathers, during the life- time of Elizabeth Wilson, had no estate or interest in said premises which they of right could alienate or convey, that until the death of said Elizabeth Wilson, the interest of William T. and George H. Wil- son in said premises was that of a mere possibility or expectancy which could ripen into title and become a vested estate or interest, only in the event that they survived their mother, Elizabeth Wilson, the first donee in tail. In both the court of common pleas and in the circuit court, the contenti on of Harriet Dungan was held to be erroneous and was de- termined against her, and in this we think ther ewas no error. Section 4200, Revised Statutes, provides as follows : "No estate in fee simple, fee tail, or any lesser estate, in lands or tenements, lying within this state, shall be given or granted, by deed or will, to any per- son or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will ; and all estates given in tail shall be and remain an absolute estate., in Jee simple to the issue ^f the first donee in tail." Counsel for plain- tiff in error, in discussing the effect of this statute, say in their brief : "The first part of the section, preceding the semi-colon, permits the granting of a limited estate tail and it forbids the granting of the same to persons who are in fact more remote than the immediate issue of persons in being at the time said grant is made." This claim, ignoring 7 Part of the opinion is omitted. 568. DERIVATIVE TITLES (^^art 2 as it does the word "descendants" found in the statute, is in part at kast clearly erroneous. It will be observed that by the language of the first clause of this section the entailment by deed or will, is not re- stricted to persons in being, or to the immediate issue of such as are in being, but the limitation is, to persons in being, "or to the immediate issue or descendants of such as are in being at the time of making such deed or will." * * * That, during the life of Elizabeth Wilson, first donee in tail, her chil- dren William T. and George H. Wilson had n o estate or interest_m the premises devised to her which they of right could alien or convey while not heretofore directly decided by this court has, we think, by necessary implication, been so determined in several cases. In Pollock V. Speidel, 17 Ohio St. 448, in discussing the scope and effect of the act of 1811 (now section 4200, Revised Statutes), Scott, J., says : "The statute recognizes the first donee in tail as holding an estate for life only, as tenant in tail ; and does not convert the estate into a fee simple till it reaches the hands of his issue." While it would seem to be, and was, incorrect to speak of the first donee in tail as holding an estate for life, as tenant in tail, this apparent inaccuracy of statement is suffi- ciently, and we think correctly explained in Harkness v. Corning, 24 Ohio St. 428, where the court say: "A somewhat similar expression is used by the learned judge delivering the opinion of this court in Pol- lock V. Speidel, 17 Ohio St. 447. The controversy in that case was be- tween the issue of the donee and the defendant, claiming under a con- veyance from the donee, and the question was as to the quantity of in- terest conveyed. The judge said the 'statute recognizes the first donee in tail as holding an estate for life only, as tenant in tail.' The idea in- tended to be expressed was that the donee, holding only as tenant in tail, could not convey an estate that would endure beyond his own fife. To give to the expression the meaning claimed by plaintiff's counsel, that the donee took a mere life estate, would render the opinion not only inconsistent with itself but with the fourth proposition of the syl- labus." This case of Harkness v. Corning, supra, is also decisive of the proposition, that the statute does not become operative until the estate passes by the first donee in tail and reaches the issue of such donee, when, as said in the opinion (24 Ohio St. at page 426), on the determina- tion of the interest of such donee and of such rights as the law annexes to his interest while held by him, the statute then enlarges the estate tail in the hands of such issue into an absolute estate in fee simple. When the case of Pollock v. Speidel, supra, was a second time before this court, 27 Ohio St. 86, the court, in considering and discussing the eft'ect of the last paragraph of the statute which reads, "and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail," say that the issue of a tenant in tail "has no legal rights in the premises during the tenant's life. The issue takes, if at all, by descent as heir of the body, and the maxim is 'nemo est hseres viventis.' " The action was one in ejectment, and was Ch. 5) ESTATES CREATED 569 brought by the children of one James Pollock, who was the son of John Pollock, Jr., first donee in tail, against the defendant to recover posses- sion of certain real estate of which they claimed to be seized in fee simple as heirs of said James Pollock. The defendant denied the title of plaintiffs and alleged title in himself under a conveyance from said James Pollock by deed of general warranty executed June 30, 1831. While it does not positively and affirmatively appear at what time John Pollock, Jr., the first donee in tail died, and the court in the opinion so state, yet it does appear from the agreed statement of facts therein : "III. That John Pollock, Jr., left some five children besides James Pollock, the grantee in the deed dated June 30, 1831." We therefore conclude that the fair and reasonable inference is, and that the fact was, that John Pollock, Jr., the father of James, died before he did, and as, upon the death of his father, James as issue in tail would there- upon take, by force of the statute an absolute estate in fee simple, with full power of alienation, he would of course, as would also his heirs, be estopped by his deed of June 30, 1831, which was a deed of general warranty, and this would be so, as said by the court in that case, even though John Pollock the first donee in tail was living at the time of its execution. Upon no other theory, than that James survived his father, can the decision in this case be reconciled with other decisions of this court, or be supported and upheld. Our statute of entailments. Section 4200, substantially in its present form, was copied from the statute of Connecticut, and the precise ques- tion we are now considering was decided by the supreme court of that state in Dart v. Dart, 7 Conn. 250, where it is said by Peters, J. : "2. What estate passed from the plaintiff, by his deed to the releasees? By the common law, a release is a secondary conveyance, and is a dis- charge of a man's right in land or tenements to another, who hath some former estate in possession. Shep. Touch. 318, 2 Bl. Com., 328. But in this state, a release is considered as a primary conveyance, and pass- es all the right of the releasor to the releasee, provided no other person be in possession adversely ; and operates as a conveyance without war- ranty. 1 Sw. Dig. 133. But if he have no right, nothing passes, not even a chose in action. What es ta];£,..,tfa£n^. liad th e issu e o i the fir.st , done e in tail, during his life? My. answer is, none. The plaintiff could.,, the refore, convey none. Such issue is only an heir apparent or pre- sumptive . His title is the bare possibility, or mere chance, of becoming eventually the heir in tail; for the maxim is, 'nemo est haeres viventis.' And it is a well settled rule, that a rnere £ossibility cari not be released _orconyeyed ; and the reason thereof is, that a release supposes a right IrTBemg; Shep. Touch. 319; Bac. Abr. tit. Release, H." It follows from the foregoing, we think, that the judgment of the cir- cuit court in the present case was r ight and should be affirmed. Judg- ment affirmed.^ /7 ^^/f- 7^ un'f^«^s be adjudtred a fee simple; and if no valid remainder he limited thereon, tshall be a fee simjile alisohilc." IIow- eirs Ann. .'^t. 1912, § 10(525. There are many states in which the statutes are substantially as above, omitting the italicized portion; tlie part in italics, though not so conimon, is found in several statutes. » See 1 Stimson's Am. St. Law, § 1335; Howell's Ann. Mich. St. 1912, | 10628 ; St. 7 Will. IV & 1 Vict. c. 26, ss. 3, 6 ; St 60 & 61 \'ict. c. 65, part 1. Ch. 5) ESTATES CREATED 571 and his heirs during the life of cesty que vie) and this shall prevent the occupant, and yet the lessee may assign it to whom he will ; or if he hath already an estate for another man's life witholit these words, then it were good for him to assign his estate to divers men and tlieir heirs during the life of cesty que vie. * * * You have perceived, that our author divides tenant for life into two branches, viz., into tenant for term of his own life, and into tenant for term of another man's life ; to this may be added a third, viz., into an estate both for term of his own life, and for term of another man's life. As if a lease may be made to A. to have to him for term of his own life, and the lives of B. and C. for the lessee in this case hath but one freehold, which hath this limitation, during his own life, and during the lives of two others. * * * If a man grant an estate to a woman dum sola fuit, or durante viduitate, or quamdiu 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 xl. &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 law 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 pleading he shall allege the lease, and conclude, that by foric 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 £20. per annum, to another until £100. 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 levying of the £100. But if a man grant a rent of £20. per annum until £100. 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 un- certain 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 writing, 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 in- terest 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 life time. And tenant by statute merchant, by statute staple, and by elegit, have uncertain inter- ests in lands or tenements, and yet they have but chattels, and no free- hold, 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 value uncertain interests, and yet b'Jt chattels. 572 DERIVATIVE TITLES (Part 2 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 cei*emonies 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 determinable upon the determination of the office. A., tenant in fee simple, makes a lease of lands to B. to have and to hold to B. for tefm 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 es- tate 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 general 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 stand- eth with law shall be taken. Secondly, the law more respecteth a lesser estate by right, than a larger estate by wrong; as if tenant for life in remainder disseise ten- ant 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. Co. Litt. 41b, 42 a, b. LITTLETON'S TENURES. And it is to be understood, that there is feoffor and feoffee, donor and donee, lessor and lessee. Feoffor is properly where a man in- f eoffs another in any lands or tenements in fee simple, he which maketh the enfeoft"ment is called the feoffor, and he to whom the feoff- ment is made is called the feoffee. And the donor is properly where a man giveth certain lands or tenements to another in tail, he which maketh tlie gift is called the donor, and he to whom tlie gift is made is called the donee. And the lessor is properly where a man letteth to another lands or tenements for term of life, or for term of years, or to hold at will, he which maketh the lease is called lessor, and he to whom the lease is made is called lessee. And every one which hath an estate in any lands or tenements for term of his own or another man's life. Ch. 5) ESTATES CREATED 57S is called tenant of freehold, and none other of a lesser estate can have a freeho ld; but they of a greater estate have a freehold ; for he in fee sim2le hath a freehold, and tenant in tail hath a freehold, &c. Section 57. ROSSE'S CASE. (Court of Common Pleas, 1600. 5 Co. 13.) Between Peter Rosse and Aldwick in an ejectione firmse, which be- gan Pasch. Z1 Eliz. Rot. 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 limitation 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, scil. during his life, and the lives of two others, and he hath but one freehold, 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.** In re AMOS. CARRIER V. PRICE. (Court of Chancery. [1891] 3 Ch. 159.) Originating summons by the executors of the will of James Amos, asking for the determination by the Court of questions arising in the administration of his estate. By his will, dated the 20th of October, 1888, the testator appointed Robert Carrier and J. N. Clark to be his executors. And he gave, devised, and bequeathed unto Thomas Price a leasehold house known as 27, Bath Terrace, "the conditions to be as follows : that the prop- erty be left to him for his life and for the life of his heir, after which it becomes the property of the Boiler Makers and Iron Ship Builders Society." There followed similar gifts in precisely similar terms, and subject to exactly similar conditions, of two other (freehold) houses to Henry Poole and Thomas Henry Williams respectively. The will continued thus, "that each of the above keep the property held by them in good repair, and shall pay to the trustees the sum of 4s. per week, 10 See Brudnel's Case, 5 Co. 9a (1592). 574 DERIVATIVE TITLES (Part 2 until the whole of the mortgage be paid. And tliat the further sum of £3 6s. 8d. each per annum be paid by them to be disposed of as follows : viz., i5 per annum to the Boiler Makers Benevolent Fund, and £5 per annum to the executors. Should either of the parties refuse or fail to comply with the foregoing conditions they shall forfeit all rights to the property, and the executors shall cause the same to be handed over to the Boiler Makers Society forthwith." The attesting witnesses to the will were the two executors. The Defendants to the sumrhons were the three devisees. Price, Poole, and Williams; the Boiler Makers and Iron Ship Builders Soci- ety; and the Boiler Makers Benevolent Fund; and Elizabeth Reece, the wife of J. H. Reece, who was the heiress-at-law and one of the next of kin of the testator. The Boiler Makers Society was registered under the Trade Union Acts, 1871 and 1876. It was governed by an executive council. The rules provided for the payment by members of monthly contributions for the purpose of forming a fund for providing weekly pay for the members during sickness, super-annuation allowances, and other pe- cuniary benefits. There were also provisions relating to strikes and trade disputes. Rule 39 provided for the formation of a Benevolent Fund for the benefit of the widows and children of members. This fund was under the control of the executive council. The summons asked that a construction might be put upon the de- vises, bequests, and directions in the will contained of and concernirig;^^ the three houses given to Price, Poole, and Williams respectively, and that the effect of the gift of £5 per annum to the Boiler Makers Benev- olent Fund and £5 per annum to the executors might be determined. North, J.^^ * * * 'j^|-,g Qj^|y remaining question is^ what inter- est do the tenants for life take? I confess I do not understand what the testator had in his mind ; and I can only construe his language as I find it. In my opinion, the property is given to each devisee or legatee for a limited interest, which is described as "for his life and for the life of his heir." For the devisee's own life the gift is clearly good. The question is, whether the interest which he takes comes to an end "upon his death, the interest for the life of his heir being too vague to be recognized. I do not see any reason in point of law which prevents the gift from being good. There is no hiatus of any kind ; the gift to the devisee for his Hfe would necessarily come to an end at his death. _But at the very moment of his death the person who is his heir is as- certained, and there is nothing discontinuous in the limitation which prevents it from being good. I see no ground for saying that the heir takes beneficially. In my opinion, it is a limitation to a tenant for two lives, the lives being his own and that of his heir in each case. I think that is the meaning of the testator's words, and I can see nothing in law to prevent their taking effect. 11 Part of the opinion is omitted. Ch. 5) ESTATES CREATED 575 The tw o annual payments to the executors and to the Benevolent Fund are void. The payment of these sums is a condition subsequent, and, as the person who takes the land cannot legally pay them, he is not liable to forfeit his land by reason of his not doing that which he cannot legally do. THOMPSON V. BAXTER. j'X (Supreme Court of Iklinnesota, 1909. 107 IVIinn. 122, 119 N. W. 797, 21 L. K. A. [X. S.J 575.) Brown, J. Proceedings in forcible entry and unlawful detainer, instituted in justice court, where _defendant had judgment. Plaintiff , appealed to the district court, where a like result followed. From the judgment of that court she appealed to this court. The ac tion inyolves the right to the possession of certain residence^ propert y in the city of Albert Lea, and was submitted to the court helow upon the pleadings and a stipulation of facts. It appears that jilaintjff is the owner of the premises; that she acquired title thereto b y purchas e from a former owner, who had theretofore entered into a contract 5y~ which he leasecTand dernised the premises to defendant at an agreed monthly rent of twenty-two dollars; and plaintiff's title is subject to all rights that became vested in defendant thereby. The lease, after reciting the rental of the premises and other usual condi- tions, contained upon the subject of the term of the tenancy, the fol- lowing stipulation : "To have and to hold the above-rented premises ^ unto the said party of the second part (the tenant) his heirs, executors, administrators, and assigns, for and during the full term of while he shall wish to live in Albert Lea, from and after the first day of Decem- ber, 1904." The only question involved under the stipulation is the const ruction of this provision of the lease. Defendant has at all times paid the rent as it became due; but, if plaintiff has the right to termi- nate the tenancy and eject him, proper notice for that purpose has been given. __Ap£ellant contends that the lease created either a tenancy at will, at sufferance, or from month to month, and that plaintiff could terminate the same at any time by proper notice. The trial court held^, in ha rmony with defendant's contentioUj, that the contract created a li f e est^ate in defendant, terminable only at his death or removal from Albert Lea. Appellant assigns this conclusion as error. A determination of the question presented involves a construction of the lease and a brief examination of some of the principles of law applicable to tenancies at will, at sufferance, from month to month, and life estates. Deeds, leases, or other instruments aft'ecting the title to real property are construed, guided by the law appHcable to the par- ticular subject, precisely as other contracts are construed, and eft'ect , given the, intention of ..the_^arties. Lawton v. Joesting, 96 Minn. 163, 576 DERIVATIVE TITLES (Part 2 104 N. W. 830; Whetstone v. Hunt, 78 Ark. 230, 93 S. W. 979, 8 Ann. Cas. 443, and extended note. The contract before us, though some- what £ecuhar and unusual as to the term of the tenancy intended to be created, is nevertheless clear and free from ambiguity. It granted the demised premises to defendant "while he shall wish to live in Albert Lea." The legal effect of this language is, therefore, the only question in the case. Tenancies at will may be created by express words, or they may arise by implication of law. Where created by express contract, the writing necessarily so indicates, and reserves the right of termination to either party, as where the lease provides that the tenant shall occupy the premises so long as agreeable to both parties. Richardson v. Lang- ridge, 4 Taunt. 128; Say v. Stoddard, 27 Ohio St. 478. ^uch ten- ancies arise by implication of law where no definite time is stated in the contract, or where the tenant enters into possession under an agreement to execute a contract for a specific term and he subsequently refuses to do so, or one who enters under a void lease, or where he holds over pending negotiations for a new lease. The chief charac- teristics of this form of tenancy are (1) uncertainty respecting the term, and (2) the right of either party to terminate it by proper notice ; and these features must exist, whether the tenancy be created by the express language of the contract or by implication of law. An accu- rate definition is given in 1 Wood, Landlord & Tenant, 43, in the fol- lowing language: '_^A_tenant at will is one who enters into the posses- sion of the lands or tenements of another, lawfully, but for no definite term or purpose, but whose possession is subject to termination by the landlord at any time he sees fit to put an end to it. He is called a tenant at will 'because he hath no certain or sure estate, for the les- sor may put him out at what time it pleaseth him.' " A tenancy at sufferance arises where the tenant wrongfully holds over after the expiration of his term, differing from the tenancy at will, where the possession is by the permission of the landlord. 4 Kent, Com. 117; Edwards v. Hale, 9 Allen (Mass.) 462. He has a naked possession without right, and, independent of statute, is not en- titled to notice to quit. 1 Wood, Landlord &. Tenant, § 8. It also arises where a mortgagor holds over after the expiration of the period of redemption on foreclosure. Stedman v. Gassett, 18 Vt. 346. In fact, this relation exists in all cases where a person who enters lawfully into the possession wrongfully holds possession after his estate or right has ended. Kinsley v. Ames, 2 Mete. (Mass.) 29; Jackson v. McLeod, 12 Johns. (N. Y.) 182; 2 Blackstone, 150; 1 Wood, Landlord & Ten- ant, 7. A te nancy from month to month or year to year arises where no definite time is agreed upon and the rent is fixed at so much per year or month, as the case may be, and is terminable at the expiration of any period for which rent has been paid. Finch v. Moore, 50 Minn. 116, 52 N. W. 384. This form of tenancy can never exist where Ch. 5) ESTATES CREATED 577 the lease or contract prescribes a fixed tinie.^ The mere fact that rent is payable monthly does not alone determine the character of the ten- ancy. The monthly or yearly payments and an intention to limit the term to a month or year must in all cases concur to create this species of tenancy. From these general principles of the law of tenancy it is quite clear that the lease under consideration does not come within either class mentioned. Its language does not expressly define it as a tenancy at will, and no such relation arises by implication, for the reason that the term is not indefinite, within the meaning of the law on this subject, nor is the right to terminate the lease reserved to the lessor. Indefiniteness or uncertainty as to the term of the lease is illustrated by instances where one occupies land by the naked permission of the owner (Hull V. Wood, 14 Mees. & W. 681 ; Williams v. Deriar, 31 Mo. 13; Larned V. Hudson, 60 N. Y. 102), or a person who holds under a void deed (Stamper v. Griffin, 20 Ga. 312, 65 Am. Dec. 628; Executors v. Hous- ton, 16 Ala. Ill), or where he enters under an agreement for a lease not yet executed (Emmons v. Scudder, 115 Mass. 367), or under a lease until the premises are sold (Lea v. Hernandez, 10 Tex. 137; Ela V. Bankes, Zl Wis. 89), and under various circumstances wiiere no time is specifically agreed upon. In the lease under consideration the tenancy^is limited by the time defendant sliall continue to dwell in Al- bejt^^ea, and this limitation takes the case put of the class of tenan- cies at will. It is equally clear that a tenancy at sufferance was not created by the contract. There has been no wrongful or unlawful holding over after the expiration of the term. Nor does tlie rule of tenancy from month to month apply for the reasons already pointed out. We therefore turn to tlie question, the turning point in the court be- low, whether the instrument created a life estate in defendant within the princTpIes'of law applicable to , that branch of land titles. It is tEoroughly settled that a life estate may be created by a deed, lease, or devise, either witb or without a stipulation for the payment of rent. This class of tenancies differs in many essential respects from tenancies at will, or from year to year, or at sufferance; the principal distinction being that the former confers a freehold upon tbe tenant, and the lat- ter a mere chattel interest. Tbe lease under consideration embodies all the essentials of a life tenancy. . It contains the usual words of in- heritance, necessary at common law, running to defendant, "his heirs, executors, administrators, and assigns," and grants the right of occu- pancy for the term stated therein. Life estates or life tenancies are clearly defined in the books, and the lease here involved brings it within this class of estates. 1 Taylor, Landlord & Tenant, §§ 52, "^Z, states the rule as follows: "An estate for life may be. createjd either by express limitation or by a grant in general terms. If made to a man for the term of his own life, or Aig.Pkop. — 37 y VQ. (^ 578 DERIVATIVE TITLES (Part 2 for that of another person, he is called a tenant for life. Bu t the estate may also be created by a general grant, without defining any specific interest, as where a grant is made to a man, or to a man and his assigns without any limitation in point of time, it will be considered as an estate for life, and for the life of the grantee only. * * * Where a grant is made, subject to be defeated by a particular event, and there is no limitation in point of time, it will be ab initio a grant. of an estate fqrjife, as much as if no such event had been contem- plated. Thus, if a grant be made to a man so long as he shall inhabit a certain place, or to a woman during her widowhood, as there is no cer- tainty that the estate will be terminated by the change of habitation or by the marriage, respectively, of the lessees, the estate is as much an estate for life, until the prescribed event takes place, as if it had been so granted in express terms." The author's statement of the law is sustained by the otlier writers on the subject (4 Kent, Com. 27; 2 Blackstone, 121), and by the ad- judicated cases. In Warner v. Tanner, 38 Ohio St. 118, a life estate was held to be created by a lease for a yearly rent extending during the time the lessee should continue to occupy the premises for a par- ticular purpose. In Mickie v. Woods' Ex'r, 5 Rand. (Va.) 571, 574, the grant was to continue so long as the tenant should pay the stipulated rent. It was held a life estate. A grant "so long as the waters of the _Pelaware shall rvui" was held in Foster v. Joice, 3 Wash. C. C. 498, ]^ Fed. Cas. No. 4,974, to create a life estate. In Hurd v. Gushing, 24 Mass. (7 Pick.) 169, the premises were leased at a fixed yearly rent for the term "so long as the salt works" to be located thereon should continue in operation. It was held a life estate. In Thomas v. Thomas, 17 N. J. Eq. 356, it was held that a right given by a will to occupy at a specified annual rent certein premises so long as the devisee "may desire to occupy the same as a drug store" amounted to an estate for life. See also to the same effect, 16 Cyc. 614; Maverick v. Gibbs, 3 McCord (S. G.) 315; People v. Gillis, 24 Wend. (N. Y.) 201; Rose- boom V. Van Vechten, 5 Denio (N. Y.) 414; Ely v. Randall, 68 Minn. 177, 70 N. W. 980. The lease in the case at bar conies within the rule of these authori- ties, and the trial court properly held that it vested in defendant a _ life estate, terminable only at his death or his removal from Albert Lea. Judgment affirmed.^' ^^ , -.^^jlJ' . 12 Beauchamp y. Runuels, 35 Tex. Civ. App. 212, 79 S. W. 1105 (1904), contra. By act of Parliament tlie fee of certain lands was vested in a board of deputies, which was authorized to allot portions of the lauds to persons to hold same so long as they should be willing, and pay a specified annual rent, and conform to the orders and regulations to be made from time to time by the deputies. The seventeenth section of the act empowered the deputies to dis- pose, by absolute sale, any portion of the premises, freed from any claim by any resident allottee. By t'he twenty-second section no sale was to be effected without the consent of the majority of tlie allottees in regular meeting as- Ch. 5) ESTATES CREATED 579 II. Legai, (A) In Tail After Possibility of Issue Extinct LITTLETON'S TENURES. Tenant in f ee^ tail after possibility of issue extinct is, where tene- ments are given to a man and to his wife in especial tail, if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct. And if they have issue, and the one died, albeit that during the life of the issue, the survivor shall not be said tenant in tail after possibility of issue extinct; yet if the issue die without issue, so as there be not any issue alive which may inherit by force of the tail, then the surviving party of the donees is tenant in tail after possibility of issue extinct. Also, if tenements be given to a man and to his heirs which he shall beget on the body of his wife, in this case the wife hath nothing in the tenements, and the husband is seised as donee in especial tail. And in this case, if the wife die without issue of her body begotten by her husband, then the husband is tenant in tail after possibility of issue extinct. And note, that none can be tenant in tail after the possibility of issue extinct, but one of the donees, or the donee in especial tail. For the donee in general tail cannot be said to be tenant in tail after possibility of issue extinct : because always during his life, he may by possibility have issue which may inherit by force of the same entail. And so in the same manner the issue, which is heir to the donees in es- pecial tail, cannot be tenant in tail after possibility of issue extinct, for the reason abovesaid. And note, that tenant in tail after possibility of issue extinct shall not be punished of waste, for the inheritance that once was in him, 10 H. 6. 1. But he in the reversion may enter if he alien in fee, 45 E. 3. 22. Sections 32, 33, 34. sembled. Under a statute alloaving only freeholders to vote at a certain elec tion, was an allottee of such lands entitled to vote? Under a devise "to M." of "my cottajre and all it contains at Nahant — to use for the term of five years or longer," what estate did M. take? -t _^ . Land was leased at a certain rent "for such time as the lessee, his heirs and assigns, may occupy the same for a sawmill yard." There was a provision that possession should be yielded to the lessor, "his heirs or assigns, at the time of the expiration of the occupation of said premises for sawmill purposes." What estate did the lessee have? See Gilmore v. Hamilton, 83 Ind. 196 (1SS2). 580 DERIVATIVE TITLES (Part 2 (B) Husband's Interest in Wife's Realty LITTLETON'S TENURES. Tenant by the curtesy of England is, where a man taketh a wife seised in fee simple or in fee tail, general, or seised as heir in tail espe- cial, and hath issue by the same wife male or female born alive (oyes ou vife,) alheit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land during his life by the law of England. And he is called tenant by the curtesy of England, because th is is used in no other realm but in England only. And some have said, that he shall not be tenant by the curtesy, un- less the child, which he hath by his wife, be heard cry ; for by the cry it is proved, that the child was born alive. Therefore Ouxre. Sec- tion Zd. MONTGOMERY v. TATE. (Supreme Court of Indiana, 1S59. 12 Ind. 615.) WoRDEx, J. This was an actio'n by the appellee against the appel- lant, to recover the possession of a certain piece of laud described in the complaint. There are two paragraphs in the complaint, one claim- ing a fee simple, and the other a life estate in the land. Answer in denial. Trial by jury; verdict and judgment for plain- tiff, over a motion for a new trial. By a bill of exceptions it appears, that on the trial the plaintiff proved, prima facie, a title to the land in herself, either in fee simple or for life; but whether her evidence established, prima facie, a fee simple interest in her, or a life estate merely, it is wholly unnecessary to determine for the purposes of this case ; therefore we shall express no opinion in reference to it. After the plaintiff' became seized of the premises, she intermarried with one John B. Tate, who is still living, and the husband of the plain- tiff. Afterwards, in September, 1840, Bates and Abrams recovered a judgment in the Fayette Circuit Court against William Tully an d the said John B. Tate, for the sum of 177 dollars, 60 cents, besides costs of suit, on which an execution was afterwards issued, which was levied upon the property in controversy, as the property of said John B. Tate, "for and during the natural life of Ursula Tate, wife of said John B. Tate," and the property, on a venditioni exponas, was afterwards sold, according to law, to satisfy the judgment and costs. James Miller and San ford P. White became the purchasers at the sheriff's sale, and received his deed for the premises, conveying Ch. 5) ESTATES CREATED 581 to them the interest of said John B. Tate therein during the life- time of his wife, Ursula Tate. This took place in 1842. Miller and White afterwards conveyed to Elisha Vance, a nd Vance to t he defend- ant^ Montgomery. On these facts, the Court charged the jury, "that if they believed the evidence, it would be their duty to find for the plaintiff." The defendant asked several charges, to the effect that if the jury believed the propositions relied upon by defendant in support of his title (substantially those contended in the evidence), it would be their duty to find for the defendant. These were refused, and the defendant excepted to the ruling of the Court in giving and refusing the charges. At common law, by the marriage of Ursula with John B. Tate, he became entitled to an, estate in her lands during their joint lives. This estate is as absolute and perfect in him during that period, as, if accfuired by conveyance, or in any other mode. Itjs subject to sale on execution against him, and may be conveyed by him. Vide 2 KenFs Com. 131; Butterfield v. Beall, 3 Ind. 203; Junction Railroad Co. V. Harris, 9 Ind. 184, 68 Am. Dec. 618. But it is contended that the law of 1838 (R. S. 1838, p. 276, § 1), in force at the time of the sale in question, subjecting property to sale on execution, does not authorize such estates to be sold on ex- ecution. It provides, "that the personal and real estate of every in- dividual," &c., "including his, her, or their goods, chattels, lands, tene- ments and hereditaments, be and the same are hereby made subject to execution," &c. The counsel say that, "Nowhere do they find any law authoriz- ing the selling of the wife's interest in land for the debts of her hus- band." No interest of the wife is sold; for the entire estate in the l and is, by the marriage, vested in the husband during their joint \ \yes_. During .their joint lives she has no estate in the lands. Such estate being vested in the husband, it is very clearly within the terms of the statute, and subject to sale on execution against him. Subsequent legislation has, perhaps, changed this rule. See Acts of 1847, p. 45, and 1 R. S. p. 321, § 5. But these acts can have no influence on the case at bar, as the sale here took place before either of them was enacted. A contingency may arise that will abridge the term conveyed by the sheriff's deed, to a less period than that of the life of said Ursula. The death of said John B. leaving her surviving him, would, perhaps, terminate the estate conveyed ; but this does not at all vitiate the deed. It would be good for whatever interest he had in the premises, not extending beyond the lifetime ofsaid Ursula. Both husband and wife being still alive, the term conveyed b.y the sheriff's deed is not yet expired, and the defendant's title to premises derived from such sale, still subsists. 582 DERIVATIVE TITLES (Part 2 The ruling of the Court was wrong, and the judgment must be re- versed. The judgment is £eversed with costs. Cause remanded for a new trial/3 "■ ; / / MATTOCKS V. STEARNS. S^— ^i^l (Supreme Court of Vermont, 1837. 9 Vt. 326.) This was an action of ejectment for about seven eighths of an acre of land in the village of Danville. Plea, severally, not guilty, and issue to the jury. On trial the plaintiffs introduced a deed from Josiah Bellows to Caleb Wheaton, dated 10th May, 1828, containing the land in question. He also in- troduced, a levy of execution upon the same land in his favor, against ,j John Stearns, one of the defendants, dated August 5th, 1834. He then ^ •/ «A«.p*^ introduced evidence, tending to prove, that Caleb Wheaton was the \ father of John Stearns' wife, the other defendant, and that he died ^ seized and possessed of the premises sued for, and that his estate y / was nearly settled and the debts all paid, and that he left a wife and two children living, to wit: Mrs. Stearns and Zalmon Wheaton. The plaintiff further introduced evidence tending to show, that John Stearns had absconded to Canada, about two years ago, and a short time before the levy, and that his wife and children lived on and t*/l6 took care of the premises. y. \ The plaintiff' then produced two written notices, one to Mrs. Steams, ""^'''f^ ^ and one to C. Davis, defendants' counsel, requiring them to produce a deed, from said Zalmon Wheaton to Mrs. Stearns, of the premises, and no deed being produced by defendants and no copy of any deed being offered by the plaintiff, he offered Zalmon Wheaton as a Avitness to prove the contents of a deed, executed by him ; which testimony was objected to by the defendants but was admitted by the court, and said Zalmon was sworn, and testified that he, on the 5th October, 1832, executed a quit claim deed of the premises to his sister, j\Irs. Stearns, and that she, at the same time, executed a quit claim deed to the witness of some other real estate left by their father, and that there was no distribution of the real estate among the heirs by decree of the probate court, and that the widow of Caleb Wheaton . had relinquished her right of dower, in consideration of a support, ' '^ guarantied by the witness. Here the plaintiff rested his case. It was 13 "We are still living under the common-law rule which gives the husband a freeihold estate for the joint lives of himself and his wife in her lands which she held at the time of her maniage, except such as she held to her sole and separate use. In this land, therefore, the petitionee has such a freehold inter- est. In that sense and to that extent it is his estate. He is entitled to the rents and profits thereof." Hubbard v. Hubbard, 77 Vt. 73, 76, 58 Atl. 969, 67 L. R. A. 969, 107 Am. St. Rep. 749, 2 Ann. Cas. 315 (1904), per Stafford, J. See, also, Ballantiue & Sons v. Fenn, 88 Vt. 166, 170, 92 Atl. 3 (1914). 4^ ) oUiid' Ch. 5) ESTATES CREATED 583 admitted the defendants had issue born ahve. The defendants re- quested the court to instruct the jury, that upon this evidence the plaintiff was not entitled to recover against both defendants, or either. But the court instructed the jury, that if they believed the said testi- mony, the plaintiff was entitled to recover possession, of the premises, and costs, against both defendants ; to which decision of the court, in admitting parol evidence, in relation to the deed to Mrs. Stearns, and to the said instructions to the jury, the defendants excepted. RedfiEld, J.^* * * * The freehold title of the wife being made out, and the plaintiff's levy being admitted to be formal, and it being also admitted, that the defendants had issue born alive, it only remains to in quire whether the defendant, John Stearns, had such an estate in d the Tand, as was liable to be levied upon by his creditors. The "statute." pro vide"s. that, "any estate, held by the debtor in his own right in fee, or for his own life, or the life of another, paying no rents therefore," shall be subject to be levied upon. We see no difficulty in considering this an estate, which the debtor jield in his own right. The title was, indeed, derived through the right of his wife, but, by virtue of th e marriage, he, as husband, acquires cer- tain ri ghts, amo ng^jyhich, the use of the freehold estate of inheritance of th e wife , during the covcrture,_is__one. After issue born alive, this estate is enlarged and extends not only during the coverture, but till t he death of the husband, except in one event, which will be named hereafter. This, in England, after the death of the wife, was denom- inated an estate by the curtesy, but is strictly an estate, which the hus- band hofcTi in his own right, whether before or after the death of the wife. He may bring trespass or ejectment in his own name, for any injury to the usufruct during the continuance of his estate. The next inquiry is, whether this is an estate for the life of the debt- ' ■ or. It is undoubtedly true, that this estate might be determined by a div orce, a vinculo, before the death of either husband or wife. But this is a contingency of so remote expectation, as not to enter into the ordinary calculations of the duration of the relation of married life. It is one of those extreme cases, which, like earthquakes and tempests in the natural world, or like public executions in the history of individual existence, do, indeed, sometimes occur, but which no one feels bound to expect or to provide against. 14 Only a portion of the opinion is given here. In Canby v. Porter, 12 Ohio, 79 (1813), the plaintiff in ejectment claimed un- der an execution sale upon a jiidignient against the defendant. The land in question was owned in fee by defendant's wife. Issue had been born. In up- holding plaintiff's contention the court said : "'We have been furnished \^'ith no argument by the defendant; but the plaintiff's right to recover seems plain. For the interest of the husband is a legal estate; it is a freehold during the joint lives of himself and wife, with a freehold in remainder to himself for life, as tenant by the curtesy, and a remainder to the wife and her heirs, in fee. It is a certain and determinate interest, whose value may be easily as- certained by reference to well-known rules. It is, in every sense, his 'land,' ■within the meaning of the statute, and liable to respond for his debts." K2 584 DERIVATIVE TITLES (Part 2 This, then, is an estate for the Hfe of the debtor, depemiing upon this remote contingency, which no honest or prudent man could antic- ipate in his own case, and which the law cannot regard until it occurs. And should the contingency happen, and thus the estate of the levying creditor be determined, it is no detriment to the debtor, nor has he any just cause of complaint. His debt is paid, and the loss and risk, if any, fall upon the creditor. But if this were a contingency still less remote, it would not change the character of the estate. An estate to a woman durante viduitate, or dum sola, or to a man, so long as he shall dwell in a particular house, are all estates for life, although each particular class of those estates is liable to be determined any hour, and that during the life time of the person, by the term of whose existence the estate is otherwise to be measured. 1 Cruise's Di- gest, 77. 1 Institutes, 42, a. * * * The judgment of the County Court is affirmed. ,^jla/ J^^' " FOSTER V. MARSHALL. (Superior Court of Judicature of New Hampshire, 3S.51. 22 N. IT. 401.) Writ of entry. The facts in this case are sufficiently stated in the opinion of the Court. Bell, J. The principal question arising in this case, is as to the effec t of the Statute of Limitations upon the demandant's right of action. It appeared that the demanded premises were set off by a committee of partition, appointed by the Court of Probate, to Mary Foster, formerly Mary Eastman, the mother of the demandant,_as her share of the estate of her father, Samuel Eastman, deceased, on the 14th of May, 1814. Mary Foster was then tine wife of Frederick Fos- ter, by whom she then had one or more children. Frederick Foster died in 1834, and his wife in 1836. They had six children, whose rights are said to be now vested in the plaintiff. The defendant proved, that in 1817, one Morrill was in possession, claiming to be the owner of the demanded premises. He conveyed the same by deed, dated July 3, 1817, to one Marshall, who entered and occupied, claiming title, till April 30th, 1847, when he conveyed to the tenant, who has since remained in possession. The tenant claims that he has a perfect title by thirty years undisturbed and peaceable possession. The demandant alleges that his right is not barred, be- cause at the time when tlie disseisin occurred, in 1817, Mrs. Foster was a feme covert, and up to 1834 her husband had an estate for life in the premises and she had no right of entry until his decease, and consequently no right of action till then, and that since that time twenty years have not elapsed. Under the Statute of Limitations, which was in force in this State before the Revised Statutes, it must be considered settled, that the Ch. 5) ESTATES CREATED 585 Statute did not affect the T\ght of a remainderman or reversioner, dur- ing the continuance of the particular estate; and that neither the acts nor th e laches of the tenant of the particular estate could affect the party entitled in remainder. Wells v. Prince, 9 Mass. 503; Walling- ford V. Hearl, 15 Mass. 471; Tilson v. Thompson, 10 Pick. (Mass.) 359. No right of entry or action accrued to, or vested in the heirs of the wife during the continuance of an estate by the curtesy. Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390. But the party entitled is not barred, until tlie usual period of limita- tion after the termination of the life estate. Heath v. White, 5 Conn. 228; Witham v. Perkins, 2 Greenl. (Me.) 400. If, then, the husband had, in this case, an estate by the curtesy, or any interest in the land which would entitle his wife, who survived, to be regarded as seised only in remainder or reversion, she and her heirs would have the full period of twenty years after the death of tlie husband, to commence their action. To constitute a tenancy by the curtesy, the death of the wife is one of the four things required. The estate of the husband is initiate upon the birth of issue. It is consummate on the death of the wife. 4 Kent's Comm. 29; Co. Litt. 30, a. r 2fcv^ »/ -^ By the intermarriage, the husband acquires a freehold interest, dur- .'. JHe*^ . ing the joint lives of himself and his wife, in all such freehold prop- erty of inheritance, as she was seised of at the time of marriage, and a like interest vests in him in such as she- may become seised of dur- ing the coverture. The husband acquires jointly with the wife, a seisin in fee in the wife's freehold estates of inheritance, the husband and wife being seised in fee in right of the wife. Gilb. Ten. 108; Co. Litt. 67, a; Palvblank v. Hawkins, 1 Saund. Rep. 253, n. ; s. c. Doug. 350. This interest may be defeated by the act of the wife alone ; as if, at common law, the wife is attainted of felony, the lord by escheat could enter and eject the husband. 4 Hawk. P. C. 78; Co. Litt. 40, a ; Vin. Ab. Curtesy, A; Co. Litt. 351, a. After the birth of issue the husband is entitled to an estate for his own life, and in his own right, as tenant by the curtesy initiate. Co. Litt. 351, a, 30, a, 124, b; Schermerhorn v. Miller, 2 Cow. (N. Y.) 439. He then becomes sole tenant to the lord, and is alone entitled to do homage for the land, and to receive homage from the tenants of it, which until issue born must be done by husband and wife. 2 Black. Comm. 126; Litt. § 90; Co. Litt. 67, a, 30, a. Then he may forfeit his estate for life by a felony, which, until is- sue born, he could not do, because his wife was tlie tenant. 2 Black. Comm. 126; Roper, Hus. & Wife, 47. If the husband, after the birth of issue, make a feoffment in fee, and then the wife dies, the feoffee shall hold the land during the husband's 586 DERIVATIVE TITLES (Part 2 life; because by the birth of issue, he was entitled to curtesy, jvhich_ beneficial interest passed by the feoffment.. Co. Litt. 30, a. If such feoffment is .made before issue born, the husband's right to curtesy is gone, even though the feoft'ment be conditional and be afterwards avoided. And if in such case the husband and wife be divorced a vinculo matrimonii, the wife may enter immediately. Gune- ley's Case, 8 Co. Rep. 7Z. The husband's estate after issue born, will not be defeated by tlie.at tainder of the wile,, for his tenancy continues, he being sole tenant. 1 Hale, P. C. 359; Co. Litt. 351, a, 40, a; Bro. Ab. Forf. 78. y/ The obvious conclusion from these views of the nature of the in- terest of a tenant by the curtesy initiate is, that such tenant is seised of a freehold estate in his own right, and the interest of his wif e is^ mere reversionary interest, depending upon the life estate of the hus- band. The necessary result of this is, that the wife cannot be preju- diced by any neglect of the husband, and of course she may bring her action, or one may be brought by her heirs, at any time with in twenty ^ears after the decease of the husband, when his estate by the curtesy, whether initiate, or consummate, ceases, and her right of action, or that of her heirs, accrues. In tliis respect there is no distinction be- tween curtesy initiate and curtesy consummate. Melvin v. Locks & Canals, 16 Pick. (Mass.) 140. So far as we are aware, this principle has never been questioned, where the inheritance of the wife has been conveyed to a third per- son, either by the deed of the husband alone, or by a deed executed by husband and wife, which from some defect did not bind the interest of the wife. Miller v. Shackleford, 3 Dana (Ky.) 289; Culler v. Metzer, 13 Serg. & R. (Pa.) 356, 15 Am. Dec. 604; Fagan v. Walker, 27 N. C. 634; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 165; Melius V. Snowman, 21 Me. 201 ; Meraman v. Caldwell, 8 B. Mon. (Ky.) 32, 46 Am. Dec. 537; Gill v. Fauntleroy, 8 B. Mon. (Ky.) 177; Melvin v. Locks & Canals, 16 Pick. (Mass.) 140. But it has been held, (Melvin v. Locks & Canals, 16 Pick. (Mass.) 161 ; Kittredge v. Locks & Canals, 17 Pick. (Mass.) 246, 28 Am. Dec. 296,) that where a dis- seizin has been committed upon the wife's estate, the disseizin is done alike to the husband and wife; that a joint right of entry and of ac- tion accrues to both for the recovery of it, and that if such remedy is not prosecuted within twenty years, it is barred. This is true where the husband has acquired no estate by the cur- tesy, and is seized merely in the right of the wife of her estate. Such are the cases of Guion v. Anderson, 8 Humph. (Tenn.) 298; Melius V. Snowman, 21 Me. 201. And if the husband is tenant by curtesy, as he and his wife are seized of the fee in right of the wife, the action must be brought by husband and wife, and a joint seizin in fee alleged in them in her right. Anon., Buls. 21. Their joint r ight pj action is b arred by the Ch. 5) ESTATES CREATED 587 J^ apse of twen tyyears after it accrues. But it by no means follows, "that the reversionary right of the wife, accruing in possession after the estate of her husband has ceased, is also barred. It is wel l settled, that the sam e party may have several and successive estates in the same property, and several rights of entry by._virtu£„oi_those estates, and one of thos e rights may be barred with out the o thers being af- fec^d. Hunt v7Burn, 2 Salk. 422; Wells v. Prince, 9 Mass. 508; Stevens v. Winship, 1 Pick. (Mass.) 318, 11 Am. Dec. 178; Tilson v. Thompson, 10 Pick. (Mass.) 359. And every reason, which can exist in favor of the right of any re- versioner, applies equally in this case, namely, that a reversioner has as such, no right of entry and no right of action during the particular estate, and consequently is not barred until twenty years after his own right of entry accrued. 2 Sugd. V. & P. 353 ; 3 Steph. N. P. 2920, n. 10; Wells v. Prince, 9 Mass. 508; Stevens v. Winship, 1 Pick. (Mass.) 318; Wallingford v. Hearl, 15 Mass. 471; Tilson v. Thompson, 10 Pick. (Mass.) 359; Jackson v. Schoomaker, 4 Johns. (N. Y.) 390, before cited. Besides, the wife by reason of her dis- ability can make no entry to revest her estate during the coverture. Ijitt. p. 403 ; Co. Litt. 246, a. Coke says, in express terms, "after cover- ture, she (the wife,) cannot enter without her husband." In Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433, and Heath v. White, 5 Conn. 228, this question arose, and was decided in accordance with our views, and we think upon sounder principles than the cases in Massachusetts, to which we have referred. We have compared the provisions of the Revised Statutes with the older Statutes, and do not perceive, that there is, as to the point in question, any difference in their effect. Under neither would the plain- tiff propose to claim any advantage from the proviso. His ground is not that the ancestor was a married woman, when her right accrued ; but that her marriage and the birth of one or more children had vested a life estate in her husband, and that the disseizin was done to him, and that no right of action accrued to her in virtue of the reversionary interest, under which her heirs now claim, until she became a widow, and the husband's estate had terminated ; and that the action is bro ught within twenty years after that event. This appears to us a correct view of the case, and of the law ; and the verdict must there- fore be set aside, and a New trial granted. ^/ 58S DERIVATIVE TITLES (Part 2 BORLAND'S LESSEE et al. v. MARSHALL. HUNTER'S LESSEE v. DURRELL. (Supreme Court of Ohio, 1853. 2 Ohio St. 308.) Both these cases depend on the same question. They are wrltS-oi errorjtfi the court of common pleas of Hamilton county, and are part of the series to which belong the cases of Buchanan v. Roy's Lessee, 2 Ohio St. 251, and Fowler's Lessee v. Whiteman, 2 Ohio St. 270. In the case of Borland's Lessee v. Marshall, it was proved by the plaintiffs, that Isabella Hill, a sister of Timothy Trimble, deceased, acquired title to one-seventh of one-half of the land in controversy, by the decease of her brother in 1810. That Isabella died leaving is- sue, of whom Isabella, wife of Charles Borland, was one, and that on the death of her mother, in 1837, Isabella Borland acquired title, by descent, to one-fourth of one-seventh of one-half of the land. That Isabella, the younger, was married to Charles Borland in 1819, and that she died intestate in 1845, leaving two children as her heirs at law, who are the lessors of the plaintiff in this case. These facts they prove by Charles Borland, the husband of Isabella, and the father of the children. It was also proved, or admitted by the plaintiffs, that at the date of the adverse possession of Mr. Longworth, the lands were wild and unsettled. In the case of Hunter's Lessee v. Durrell, it was proved by the plaintiffs, that Elizabeth Trimble, a sister of Timothy Trimble, was married, in 1790, to Samuel Hunter, by whom she had lawful issue. That Elizabeth Hunter died about the year 1838, leaving issue, who are the lessors of the plaintiffs, and that her husband and the father of the plaintiffs was living when this suit was brought. The lands were wild, and all the lessors of the plaintiffs were non-residents of the State of Ohio. The plaintiffs then rested their cause, and a motion was made by the defendant in each suit for non-suit on the ground that, by the plain- tiff's own showing, a freehold estate was outstanding in Messrs. Bor- land and Hunter, respectively, as tenants by the curtesy, and that no recovery could be had on the demises of the present plaintiffs during the existence of the estates by the curtesy. These motions the court allowed, and directed judgment of nonsuit, which were accordingly entered. The_plaintiffs in each case took a bill of exceptions to the action of the court in granting the judgment of nonsuit, and to review that action of the court upon these motions these writs of error are prose- cuted. Thurman, J. The decision of this cause depends upon the answer that shall be given to the following question : Is a man entitled to Ch. 5) ESTATES CREATED 589 curtesy in lands, the title to which descended to his wife during cover- ture, but which were in the actual possession of an adverse claimant from the time her title accrued until her death ? It is very clear that. by the strict rule of the common law, he is not; and for the reason tliat neither the wife, nor the husband in her right, was, at any time during coverture, actually seized of the premises. Four_t hings. ac - cording to the common law, are necessary to create an estate by the curtesy, viz: marriage, seizin of the wife, issue, and death of tlie wife. Co. Lit. 30a. And where the wife's title is derived by inheritance, or any other mode requiring an entry to perfect it, the seizin must be in deed, and not merely in law. Co. Lit. 29a; Jackson v. Johnson, 5 Cow. (N. Y.) 98, 15 Am. Dec. 433. But it is contended, that in Ohio seizin is unnecessary ; and this leads us to inquire: L What is the reason of the common-law rule requiring seizin? 2. Does the reason exist in this state. 3. If it does not, is the maxim applicable, "cessante ratione, cessat ipsa lex," the R eason ceasing, the law itself ceases? The books generally, and with but few exceptions, give but one rea- son for the rule making seizin indispensable to curtesy, namely, that as, by the common law, livery of seizin was necessary to the transfer of a freehold estate by deed, and an entry necessary to perfect the title to such an estate, of an heir or devisee, it followed that unless the wife, or the husband in her right, was actually seized, her issue could never, as her heirs, inherit the lands ; for, owing to the want of actual seizin, she never acquired an inheritable estate. But unless she had an estate of inheritance there could be no curtesy, as it was in- dispensable to the existence of curtesy that the mother be seized of an estate which might descend to her heirs, and "the tenancy by curtesy is an excrescence out of the inheritance." 3 Bac. Abr. 11 (Bouvier's edition). Thus, Littleton says (section 52) : "And memorandum that, in ev- ery case where a man taketh a wife seized of such an estate of tene- ments, etc., as the issue which he hath by his wife, may by possibility inherit the same tenements of such an estate as the wife hath, as heire to the wife; in this case, after the decease of the wife, he shall have tlie same tenements by the curtesie of England, but otherwise not." Commenting on the above expression, "as heire to the wife," Coke says : "This doth implie a secret of law, for except the wife be actually seized the heire shall not (as hath been said) make himself heire to the wife ; and this is the reason that a man shall not be tenant by tlie curtesie of a seisin in law." Co. Lit. 40a. And, in illustration of the law that the wife must have an estate in- heritable by her issue, the following case is put: "If lands be given to a woman and to the heires males of her body, she taketh a hus- band and hath issue a daughter and dieth, he shall not be tenant by the curtesie ; because the daughter by no possibility could inherit the mother's estate in the land; and therefore where Littleton saith, issue 590 DERIVATIVE TITLES (Part 2 by his wife male or female, it is to be understood, which by possi- bility may inherit as heir tO' her mother of such estate." Co. Lit. 29b. Blackstone puts the same case, and adds : "And this seems to be the principal reason why the husband can not be tenant by the curtesy of^ any lands of which the wife was not actually seized, because, in order 1:0 enl;itle himself to such an estate, he must have begotten issue that may be heir to the wife ; but no one, by the standing rule of law, can_ be heir to the ancestor of any land, whereof the ancestor was not. actuj_ alTy seized." 2 Bla. Com. 128. In a subsequent passage, he suggests an additional reason. It is as follows : "A seizin in law of the husband will be as effectual as a seizin in deed, in order to render the wife dowable : for it is not in the wife's power to bring the husband's title to an actual seizin, as it is in the husband's power to do with regard to the wife's lands ; which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was actually seized in deed." 2 Bla. Com. 132. The only authority referred to by Blackstone, in support of the above, is Co. Lit. 31, where the diversity between dower and curtesy is noticed, but no such reason as Black- stone gives for denying curtesy is stated, although it may be inferred. What Coke says is as follows : "For a woman shall be endowed of a seizin in law. As where lands or tenements descend to the husband, before entry he hath but a seizin in law, and yet the wife shall be en- dowed, albeit it be not reduced to an actual possession, for it lieth not in the power of the wife to bring it to an actual seizin, as the husband may do of his wife's land when he is to be tenant by tlie curtesy, which is worthy the observation." As before observed, it is only by inference that this passage sup- ports Blackstone's remark. It is to some extent fortified, however, by the following language in 7 Viner's Abr. 149, namely : "Feme shall be endowed of a seizin and possession in law, without seizin in deed, quod nota; for otherwise it is of tenant by the curtesy, and the rea- son seems to be, inasmuch as the baron may enter in jure uxoris, but the feme can not compel her baron to enter into his own land." On the other hand, the following extract from 3 Bac. Abr. 12, is certainly opposed to the existence of this reason, as the idea is re- jected that the allowing or disallowing curtesy is dependent on the ability or inability, industry or negligence, of the husband. "But now of such inheritances, whereof there can not possibly be a seizin in fact, a seizin in law is sufficient ; and therefore if a man seized of an advow- son or rent in fee, hath issue a daughter, who is married and hath issue, and he dieth seized, and the wife dieth likewise before the rent becomes due, or the church becomes void, this seizin in law in the wife shall be sufficient to entitle her husband to be tenant by the curtesy, because, say the books, he could not possibly attain any other seizin, as indeed he could not ; and then it would be unreasonable he should suffer for what no industry of his could prevent. But the true reason Ch. 5) ESTATES CREATED 591 is, that the wife hath these inheritances which lie in grant, and not in hvery, when the right first descends upon her; for she hath a thing in grant when she hath a right to it, and nobody else interposes to prevent it." In Davis v. Mason, 1 Pet. 507, 7 L. Ed. 239, the foundation of the rule is thus stated in the opinion of the court: "As it relates to the tenure by curtesy, the necessity of entry grew out of the rule, which invariably existed, that an entry must be made in order to vest a free- hold (Co. Lit. 51), and out of that member of the definition of the tenure by curtesy which requires that it should be inheritable by the issue. When a descent was cast, the entry of the mother was neces- sary, or the heir made title direct from the grandfather, or other per- son last seized." A careful examination of the authorities makes it quite apparent that this is a correct statement of the principal, if not the only, reason of the rule. No other reason is found in the books, except the suggestion before referred to, that curtesy is refused where there was no actual seizin, because the husband might, by diligence, have obtained such seizin. But this idea, as we have seen, is not universally admitted. Our next inquiry is, Do the j^e reasons, or either of tliem^_exist_in^ ^^ Ohio? That livery of seizin has never been essential, in Ohio, to the crea- tion of a freehold estate, nor an entry necessary to perfect the title of an heir or devisee, is well known to every lawyer. The most com- mon instrument of conveyance is a deed^ofbargain_arads_ale,. which, without the aid of a statute of uses, transfers both the legal and equita- ble estate. Nay, further, a mere deed of quitclaim, or release, is suffi- cient, even where the releasee has no prior interest in the land. But our d ep artu re from the English law does not stop here ; for an adverse poss ession does not prevent the transfer of title, either by deed, de^ scent, or devise. Whatever title is held by the grantor, ancestor, or testator, may be thus transferred, notwithstanding the lands are ad- versely held by another. Holt v. Hemphill, 3 Ohio, 232 ; Helfenstine V. Garrard, 7 Ohio, 275, pt. 1, Hall v. Ashby, 9 Ohio, 96, 34 Am. Dec. 424. It might seem, from what was said in Holt v. Hemphill, that an adverse possession would be fatal to a deed ; but that such posses- sion in no wise affects it, was expressly decided in Hall v. Ashby. As, then, a freehold estate is created in Oh^o without entry, it is manifest that the principal, if not the only reason, of the rule requir- ing actual seizin to give curtesy does not exist in this state. But allowing that the minor reason before stated did exist in Eng- land, does it exist here? Ought a husband to be denied curtesy in Ohio upon the ground that he might have entered upon the land dur- ing coverture, and that if he did not, he was guilty of a fault that de- servedly bars his right? There may have been much reason for say- ing so in England, when the rule requiring seizin was established ; for, by the failure of the husband to enter, the wife and her issue y 592 DERIVATIVE TITLES (Part 2 might lose tlie estate, which it was plainly his duty to prevent, if pos- sible. j.)Ut in Ohio her title is as perfect before as after entry; and. in general, it would be nothing less than absurd to make a man's right depend upon whether he had gone for a moment upon the land and "broken a twig," or "turned a sod," or "read a deed." There is, how- ever, one case, and perhaps but one, in which, if curtesy exists, the heirs of the wife might be prejudiced by a failure of the husband to obtain possession, namely, when by such failure the bar of the statute of Hnu'tations becomes perfect against them. But this would probably occur so rarely as to furnish but a slight foundation for the rule we are considering. Nor is it the only case in which a remainderman, or reversioner, may be powerless to preserve his estate. If A, tlie owner in fee of lands in the adverse possession of B, devise or convey them to C for life, with remainder to D, it is manifest that, as the statute of linn'tations began to run against A, and therefore continues to run against C and D, the latter may lose his estate through the neglect or failure of C to obtain possession. So, when the statute be gins to run against a feme sole, and she afterward marry, she may lose her land by the nesflect or inability of her husband to recover it. These possible cases of hardship it is the province of legislation to guard against, and not of the courts. Were we to say that there shall be no curtesy where the possession was held adversely during the cov- erture, because to give it m.ight, by possibility, result in the loss of the estate to the heir, it is very probable that, in guarding against hardships on the one side, we would open the door to quite as much, or more, hardship on the other. For it is very far from being true that the failure to obtain possession during the coverture, is always attributable to the husband's neglect. He may have freely spent his time, labor, and money to recover the land, and yet, without any fault of his, be unable to succeed in the lifetime of the wife. Decide as we may, and doubtless there will be room for cases of hardship to arise; but, as was truly said by Duncan, J., in Stoolfoos v. Jenkins, 8 Serg. & R. (Pa.) 173: "Courts can not usurp legislative functions, or new-model the_ law according to their own ideas of natural justice, or redress hard- ships in each particular instance." And it is never to be forgotten that all wise laws are framed with a regard to what is likely to occur, rather than to that which is only possible. On the whole, the conclusion to which we have arrived is, that nei- ther of the reasons given for making actual seizin indispensable to curtesy, affords any sufificient foundation for the rule in Ohio. It re- mains to be considered whether the reason of the rule having ceased, or rather never having existed in this state, the rule itself exists here. Tenancy by the curtesy has always been known to our law and is recog- nized by our statutes. We can not deny its existence ; but may we not deny the necessity of a requisite, that properly enough formed a place in the common law, but has no reason to support it in our jurispru- dence? We are materially aided in this inquiry by the American deci- Ch. 5) ESTATES CREATED 593 5ions upon the subject of curtesy. These decisions may be reduced into three classes : 1. Those in which there being no adverse possession, the husband and wife were held to be constructively seized in deed, and such con- structive seizin deemed sufficient. 2. Those in which there was an adverse possession ; but a recover}- in ejectment, on the demise of the husband and wife or the husband alone, took place during the coverture ; and in which there was held to be curtesy, although no actual possession followed the recovery. 3. Those in which an adverse possession was decided to be no bar to curtesy. Of the first class, Jackson v. SelUck, 8 Johns. (N. Y.) 262. and Davis v. Mason, 1 Pet. 506, 7 L. Ed. 239, may properly, perhaps, be called the leading cases. . Many others might be cited, for the general current of American authority certainly admits curtesy in this class of cases. Of the second class, Ellsworth v. Cook, 8 Paige (N. Y.) 643, is the leading case. To the third class, belong Bush v. Bradley, 4 Day (Conn.) 298, ap- proved in Chew v. Comm'rs of Southward, 5 Rawle (Pa.) 160, etc. Now, a careful scrutiny of these cases will show that, in nearly all of them, the decisions were arrived at by an application of the ma.xim "cessante ratione, cessat ipsa lex." It was so expressly declared in Davis V. Mason. That case respected lands in Kentucky. After giving, in the passage hereinbefore quoted, the reason of the rule requiring seizin, the judge, who delivered the opinion of the court, went on to say: "But in Kentucky, we understand, the livery of seizin is un- heard of. Freeholds are acquired by patent, or by deed, or by descent, without any further ceremonies ; and in tracing pedigree, the proof of entry, as successive descents are cast, is never considered as necessary to a recovery, or in any mode affecting the course of descent. If a right of entry therefore exists, it ought by analogy to be sufficient to sustain 'the tenure acquired by the husband, where no adverse posses- sion exists ; as it is laid down in the books relative to a seizin in law, 'he has the thing, if he has a right to have it.' Such was not the an- cient law ; but the reason of it has ceased. It has been shown, that in the most remote periods exceptions had been introduced on the same ground ; and in the most modern, the rule has been relaxed upon the same consideration. We ought not to be behind the British courts in the liberality of our views, on the subject of this tenure." So in Jackson v. Sellick the court said: "We must take the rule -Ar (requiring seizin) with such a construction as the peculiar state of new lands in this country require." Both these cases seem to proceed on the ground that the wife, though not actually, was yet constructively seized in deed. Hence the allusion, in. each case, to the fact that there was no adverse possession to rebut the presumption. The question whether an adverse possession would Aig.Peop.— 38 594 DERIVATIVE TITLES (Part 2 be fatal to the claim to curtesy was not presented. The cases in effect decide, not that seizin in deed is indispensable, but that, if there must, ^ be seizin, a constructive seizin is sufficient. But in Bush v. Bradley, the question was directly raised. The premises, during the whole pe- riod, of the coverture, were adversely held by a third person. Yet the husband was adjudged to be tenant by the curtesy. The real estate law of Connecticut was, in all respects material to the present inquiry, the same as that of Ohio; and the court held that, as the reason of the rule requiring seizin did not exist, seizin was unnecessary, and that the symmetr}^ of the law required this decision. To the same effect is the following language of the court in Stoolfoos v. Jenkins, 8 S. & R. 175 : "The actual seizin of the husband during coverture is necessary to enti- tle him, as tenant by the curtesy, by the common law ; though such ac- tual seizin by the husband is not necessary by our law, if there be a potential seizin, or right of seizin. This has been decided to be suffi- cient in this state." This ruling, as well as the case of Bush v. Bradley, was approved in the case in 5 Rawle, 160, before cited, the court hold- ing that it was sufficient to entitle the husband to curtesy, that the wife owned the land and had a right "to demand and recover the immediate possession thereof." ^^ In the light of these decisions, and the considerations upon which they rest, we can hardly err in holding that the reason, or reasons, of the rule requiring seizin in deed, having no existence in Ohio, the rule ^ itself does not exist. And, certainly, tlie symmetry of our law demands this. It would be strange indeed, and only lead to confusion and per- plexity, if, while every other tenancy may be created in this state with- out entry, or regard to the fact of adverse possession, a tenancy by the curtesy could not. Nor does a rule strongly commend itself to the good sense of men that makes the existence of the estate depend upon an almost, or quite, imaginary distinction between seizin in law and con- structive seizin in deed. The constructive seizin relied on in Jackson V. Sellick, Davis v. Mason, and Ellsworth v. Cook, was in substance nothing but a seizin in law. It is a mere fiction to say that a man is actually possessed of that v\'hich is in no one's possession, and it is plainly untrue to say so when the thing is in the possession of another. The reasoning of the courts in all these cases, if carried to its legiti- mate result, makes seizin in deed, either actual or constructive, wholly unnecessary ; and this result is not in conflict with the principles of the common law. For even at common law, a seizin in law is sufficient to give curtesy in all inheritances created without entry. 3 Bac. Abr. 12 ; Jackson v. Johnson, 5 Cow. (N. Y.) 98, 15 Am. Dec. 433; Ellsworth V. Cook, 8 Paige (N. Y.) 643. It is therefore a mere application of a common-law principle to say that a seizin in law is sufficient in Ohio, where in no case is an entry necessary to create an inheritance. In the case before us, Mrs. Borland was seized in law, for "seizin in law is a right to lands and tenements, though the owner is by wrong disseized IS Buchanan v. Duncan, 40 Pa. 82 (1S61), ace. Ch. 5) ESTATES CREATED 595 of them." 6 Jacob's Law Die. 41. Her husband, there being issue born, became tenant by the curtesy, and as he was yet in life when the ejectment was brought by her heirs, the common pleas did right to nonsuit them. The decision of this case also decides the case of Doe ex dem. Hun- ter et al. V. Durrell ; the only difference in tlae cases being that there was an adverse possession in the one and not in the other. ^"^ J^J^ ^ WATSON V. WATSON. - - (Supreme Court of Errors of Connecticut, 1839. 13 Conn. 83.) This was an action of ejectment; tried at Hartford, September term, 1838, before Bissell, J. In the life-time of Ann Watson, and until her death, the demanded premises were owned by her in fee; and the plaintiffs are her children and heirs at law, by John Watson, to whom she was lawfully married, and who is still living. The plaintiffs claimed, that John Watson had not an estate by the curtesy in the premises ; and to establish this point, they offered in evidence the following writing, under his hand and seal, dated the 23rd of February, 1837, after the death of his wife: "Know all men, by these presents, that I, John Watson, do hereby publish, de- clare and make known, to all whom it may concern, and especially the heirs and children of my late wife, Ann Watson, that I have not, at any time hitherto, and now do not claim, demand, possess, or in any manner or to any extent whatever, have, or pretend to have, any right, title or interest in three pieces of land (describing the premises) but do now fully, absolutely and without any reservation, disclaim and reject any and all right, title and interest in the same, which I might or could have had, by operation of law or otherwise, by reason of my surviving my said wife, or any title to said premises which she had during her 16 See De Grey v. Richardson, 3 Atk. 469 (1747). Lands are conveyed to A. for life, remainder in fee to B., a woman. B. mar- ries, issue is born, and B. dies, all during tJie lifetime of A. Is B.'s husband en- titled to an estate by the curtesy? See Todd v. Oviatt, 58 Conn. 174, 20 Atl. 440, 7 L. R. A. 693 (1SS9) ; Redus v. Hayden, 43 Miss. 614 (1870) ; Dozier v. Toalson, 180 Mo. 546, 79 S. W. 420, 103 Am. St. Rep. 586 (1904) ; Ferguson v. Tweedy, 43 N. Y. 543 (1871) ; Watkins v. Thornton, 11 Ohio St. 367 (1860). As to the rights of the husband of a trustee or cestui que trust, see Kenne- son's Cases on Trusts, 223 et seq. ; Ogden v. Ogden, 60 Ark. 70, 28 S. W. 798, 46 Am. St. Rep. 151 (1894) ; Carson v. Fuhs, 131 Pa. 256, IS Atl. 1017 (1890). Lands are conveyed to a woman and the lieirs of her body ; she marries, has issue which dies, and then she dies mthout issue, leaving her husband sur- viving. Is her husband entitled to curtesy? See I'aine's Case, 8 Co. 34 (1587). An estate is devised to a woman in fee, with limitation over, in case she dies under the age of twenty-one, without issue ; she marries, has issue which dies, and then she dies under twenty-one, leaving her husband surviving. Is lie entitled to curtesy? See Buckworth v. Thirkell, 3 Bos. & P. 652, note (1785). See, also, Buchannan v. Sheffer. 2 Yeates (Pa.) 374 (1798) ; Weller v. Wener, 28 Barb. (N. Y.) 588 (1858) ; Hatfield v. Sneden, 54 N. Y. 280 (1873) ; Withers V. Jenkins, 14 S. C. 597 (1880). 596 DERIVATIVE TITLES (Part 2 life." This writing was signed and sealed by John Watson, attested by- two witnesses, acknowledged before a justice of the peace, and recorded in the town records. It was admitted by the plaintiffs, that John Wat- son was tenant by the curtesy of the demanded premises, and that they could not recover in this action, unless by operation of this writing, he had no such estate. The defendant objected to the admission of it in evidence to the jury; and the court rejected it; and a verdict p assed , for the defendant. The plaintiffs thereupon moved for a new trial. Waite, J. The object of a disclaimer, is, to prevent an estate pass- ing from the grantor to the grantee. It is a formal mode of expressing the grantee's dissent to the conveyance before the title has become vested in him. In some cases, it may be highly proper; as where a deed is made conveying an estate to one for life, with a remainder to another in fee. Here, in the absence of all evidence to the contrary, the law would presume the assent of the grantee in remainder, upon de- livery of the deed to the grantee for life, for the benefit of both. But if the remainder-man chooses not to take the estate, he may disclaim, and thereby remove all presumption of assent. So, where a deed is executed to several persons, and delivered to one for the benefit of all, if one dissents, he may disclaim, and furnish evidence that his share still remains in the grantor. Treadwell et al. v. Bulkley et al., 4 Day, 395. But if the grantee once assents, and the title thereby becomes vested in him, he cannot, by any disclaimer, revest the estate in the grantor. For if he could, the disclaimer would have the effect of a deed, which_ it cannot have; the object of the latter being to transfer property, of ^ the former to prevent a transfer. But in a case of descent, the heir cannot, by any disclaimer, prevent the estate from passing to him. It vests in him immediately upon the death of the ancestor; and no act of his is required to perfect his title. He cannot, by any act, cause the estate to remain in the ancestor ; for the latter is incapable of holding it, after his death. Nor can he, by a disclaimer, transfer the estate to any other person, as tlie heir of the ancestor : for, as has already been observed, the object of a disclaimer is not to convey, but to prevent a conveyance. He is, therefore, in the same situation, upon the death of the ancestor, as a purchaser, who has assented to the conveyance. In both cases, a transfer can only be made, by some instrument adapted to the conveyance of real estate. A devisee, however, stands in the same situation as a purchaser. If he dissents, the estate passes to the heir, in the same manner as if no will had been made. It is entirely optional with him to take or refuse the estate devised. Townson v. Tickell et al., 3 Barn. & Aid. 31. In the present case, the disclaimer was made by one who was entitled to the property as tenant by the curtesy. Is he, in this respect, like a grantee, or an, heir ? This species of estate has sometimes been classed with those acquired by purchase. But it is rather an estate thrown upon tlie tenant by operation of law. Co. Litt. 18b. It partakes more Ch. 5) ESTATES CREATED 597 of the character of an estate acquired by descent than by purchase. Immediately upon the death of the wife, the estate vests in him. Like the heir ,"Tie cannot, by refusing to take it, cause it to remain in the wife j_ nor can he, by a disclaimer, transfer it to others. The estate thus vested in him, becomes immediately liable for his debts ; and he cann ot, by any refusal to take the property, defeat the claims of his cred itors. The disclaimer offered in evidence could have no effect in shewing a title in the plaintiffs; and was properly rejected by the court. We are, therefore, satisfied, that no new trial should be granted. In this opinion the other Judges concurred. New trial not to be granted. ^^ (Q Wife's Interest in Husband's Realty LITTLETON'S TENURES. Tenant in dower is, where a man is seised of certain lands or tene- . ' c ments in fee simple, fee tail general, or as heir in special tail, and taketh // y a wife, and dieth, the wife after the decease of her husband shall be / ^ .^-C*^^*^ endowed of the third part of such lands and tenements as were her €C~ ^ husband's at any trme during the coverture, to have and to hold to / the same wife in severalty by metes and bounds for term of her life, whether she hath issue by her husband or no, and of what age soever the wife be, so as she be past the age of nine years at the time of the death of her husband, (for she must be above nine years old at the time of the decease of her husband,) otherwise she shall not be en- dowed. Section 36. BROUGHTON v. RANDALL. (Court of Queen's Bench, 1596. Cro. Eliz. 502.) Error of a judgment in Wales in dower. * * * Note here, the title of the feme to recover dower was, that the fa- ther and son were joint-tenants to them and the heirs of the son ; and they were both hanged in one cart ;. but because the son (as was deposed by witnesses) survived, as appeared by some tokens, viz., his shaking his legs, his feme thereupon demanded dower. And upon this issue nunques seisie dower, this matter was found for the demandant.*" 17 See In re Starbuck's Estate, 137 App. Div. 866, 122 N. Y. Supp. 584 (1910; ; Id., 201 N. Y. 531, 94 N. E. 109S (1911) ; Crenshaw v. Moore, infra, p. 616. "Curtesy is abolished or modified, in many states, by statutes which must be consulted." 4 Kent's Comm. *29, note. ISA part of the report relating to another point is omitted. 598 DERIVATIVE TITLES (Part 2 HOLEROOK V. FINNEY. (Supreme Judicial Court of Massachusetts, ISOS. 4 Mass. 5G6, 3 Am. Dec. 243.) This was an action for dower in several parcels of land which Han- nah Holbrook demands on the seizin of her deceased husband Ezra Finney during the coverture. The cause came before the court on a case stated by the parties, in ^"-^"-^^ which it is agreed that John Finney, the father of Ezra and of three other sons, was seized of the premises in fee, and on the 13th of Alarch, 1786, by his deed of that date, in consideration of £400. con- fj ^^^^. veyed the premises with other parcels of land to his said four sons in equal proportion in fee simple, the demandant then being the wife of ^ Ezra ; that immediately and by a deed of even date with the deed from John, the four sons mortgaged the same lands to their father in fee, to secure to him the payment of the said sum of i400. with interest, and also a maintenance during his life; that these deeds were duly acknowledged on the same day, and registered the day after; that in December in the same year^zra, the husband of the demandant, died; that in 1787 the mortgagee foreclosed the mortgage,, the conditions thereof having been broken; that in 1790, by virtue of the levying of an execution to satisfy a judgment recovered against John Finney the father by the present tenant, he became seized in fee of the premises described in the writ; and that the execution of the said deeds was in pursuance of a previous agreement to the same effect made between the parties. Upon these facts it was submitted to the court whether the demand- ant was entitled to recover her dower. Parsons, C. J. [After reciting the substance of the case as agreed by the parties:] The question before the court upon these facts, is whether Ezra Finney the husband was, during the coverture, so seized of the premises, that the demandant has a right to her dower. He was not so seized, unless from the operation of tlie deed from his fatlier to himself and his three brothers. The tenant has made two objections. 1. That this conveyance was of an estate to jointenants, of which the demandant's husband was not the survivor. 2. That her husband had that instantaneous seizin only, which will not entitle her to dower. It is settled that if an estate be devised to two or more equally to be divided, they are tenants in common. The same construction is applied to a devise to two or more share and share alike. Show. Pari. Cas. 210. Also the words equally to be divided in a covenant to stand seized, or in the surrender of a copy-hold, or in a deed appointing uses, create a tenanc)' in common. 2 Vent. 365, 6; 1 Salk. 391 ; 1 Wils. 341, 2. This construction has been adopted, because the words in equal shares, or equally to be divided, import a division in futuro. The words in this deed are in equal proportion; and it is said that Ch. 5) ESTATES CREATED 599 they do not imply a future division, but are applied only to the re- spective interests in the thing conveyed. On this ground they must be considered as wholly inoperative ; for without them, the grantees would have taken an equal interest in the lands granted. To give them opera- tion, may they not be considered as equivalent to the words in equal purparties or shares, and thus contemplate a future partition? But it is not necessary now to decide this point, for by the statute of 1785, c. 61, passed three days after the execution of these deeds, it is enacted that all estates which had been, or which should be aliened to two or more persons, shall be deemed to be tenancies in common, unless it be manifestly the intent of the alienor that they should be held as joint estates ; with a saving to the survivor of any estate in jointen- ancy before created and already vested in him. This statute has a re- trospective effect, and comprehends this conveyance ; and there seems to be no constitutional objection to the power of the legislature to alter a tenure, by substituting another tenure more beneficial to all the ten- ants. If this objection had been pressed, it would have been unnecessary to consider it, as the statute of 1783, c. 52, in force when the deeds were executed, although repealed by the last cited statute, had abolished the principle of survivorship among jointenants, and had enacted, that on the death of a jointenant, the joint estate, of which he was seized, should descend to his heirs. In consequence of these provisions, the wife of a jointenant is dowable, as on the death of her husband there could be no survivor, who would be in by a title paramount to her claim of dower.^® The demandant must therefore recover, unless the second objection should prevail. It certainly is law that where thfe husband is seized but for an instant, of this seizin his wife shall not be endowed. The seizin for an instant is where the husband by the same act, or by the same conveyance, by which he acquires the seizin, parts with it. Thus if tenant for life make a feoffment in fee his wife shall not be endowed, for by making the same feoffment which passed the fee, he acquired a fee. 2 Cro. 615. And if a joint-tenant make a feoffment, his wife shall not be endowed, for by the feoffment he was seized of a several estate but for an instant, which he acquired and parted with by the feoffment. So if a feoffment be to B. and his heirs to the use of C. and his heirs, the wife of B. shall not be endowed, for he was but an instrument; and the same feoffment, which gave him the seizin, by the statute of uses transferred it to C. Nor shall the wife of the conusee of a fine be en- dowed, when by the same fine the estate is rendered back to the conu- sor. 2 Co. 77 , a. Let us now compare the present conveyances with these principles, for the previous agreement may be laid out of the case. If the deeds 19 Davis V. Logan, 9 Dana (Ky.) 185 (1839), ace. State statutes not uncom- monly have abolished the survivorship feature of joint tenancies. 600 DKuivATivii TiTLKs (Part 2 pursue it, it is useless: an-l if they do not, we myst he £^overried wholly by the construction of the deeds. T]]*^ mortgage back to the father, from the terms of it, is of even date with the conveyance from him^ They are therefore to be considered as parts of the same contract, and a s tak ing elT['ect_a.t the same instant, The conveyance from the father took effect when he delivered his deed ; the mortgage back took effect when the mortgage deed was delivered ; but both being of even date vyere delivered at the same time. The mortgagors were therefore seiz- ed but for an instant, taking an absolute estate in fee, and instantane- ously rendering back a conditional estate in fee. T^hese two instru- ments must therefore be considered as parts of one and the same coji- tract between the parties ; in the same manner as a deed of defeazance forms with the deed to be defeated but one contract, although en- grossed on several sheets ; and no interval of time intervened between the taking, and the rendering back of the fee. But if the husband had continued seized for any portion of time^. however short, his wife would have been entitled to dower; as if the conveyance back had been made posterior in point of time, or by a deed distinct from the first grant. There is the case of Nash v. Preston reported in Cro. Car. 190, illustrating and supporting these principles. In that case J. S. seized in fee bargains and sells the land to the hus- band for £120. in consideration that the bargainee shall redemise it to the bargainor and his wife for twenty years, rendering a nominal rent, with a condition that if the bargainor at the end of twenty years paid back the £120. the bargain and sale should be void. The bargainee ac- cordingly redemised it and dies. His wife shall have dower because the land by the bargain and sale was vested in the husband. But it would have been otherwise if the land was in, and was out of the hus- band by one act. In the case at bar, the execution of the two deeds, they being of even date, w^as done at the same instant, and constitutes but one act. The demandant therefore cannot support her claim, as her husband was never so seized as to entitle her to dower. According to the terms of the agreement submitting the case to the court, the demandant must become nonsuit. , ir / shoe:maker v. walker. (Supreme Court of Pennsylvania, 1S14. 2 Serg, & E. 554.) Case stated for the opinion of the Court. By the last will and testament of Phcebe Shoemaker, deceased, dated the 2d August, 1788, and by a deed of trust from Benjamin Shoemaker and Elizabeth his wife, to John Reynell, bearing date the 31st October, A. D. 1765, Charles Shoemaker, "was vested with, and entitled to the remainder of one-eighth of all the real estate in the said deed mentioned after Ch. 5) ESTATES CREATED 601 the life estate thereby given to his mother, EHzabeth Shoemaker, shall have expired," &.c. On the 4th June, 1792, Charles Shoemaker, by deed in considera- tion of a debt of above 4,000 pounds sterling to Hathrip & Co. and to secure the same, also of 20 shillings, granted, &c. to John White- sides "all his estate, right, title, interest, claim and demand, of, into, and out of all the residue of the remainder of the said one-eighth of the real estate above-mentioned, as well as all and every the real estate of him, the said Charles Shoemaker, wheresoever the same may be, and whether it be in possession, reversion, or remainder." The demandant was married to Charles Shoemaker on the 7th i- 1 - ^ January, A. D. 1798. Elizabeth Shoemaker, the mother of Charles, died the 23d April, ■'-■' 1798. Charles Shoemaker died the 4th April, 1807, leaving a widow and children. John Whitesides, in the life-time of Elizabeth Shoemaker, viz. on the day of granted and conveyed the estate in question to the defendant. The que stion submitted to the decision of the Court is, whether the widow is entitl ed to her dower in the estate so devised to Charles. Shoemaker? If the Court shall be of opinion in the affirmative, then judgment to be entered for the demandant for an amount to be ascer- tained by the counsel. Otherwise, judgment to be for the defendant. TiLGHMAN, C. J. In this case two questions are made. 1. Whether % '■'^ a widow is entitled to dower of a trust estate. 2. Whether she is en- titled to dower of an estate, the remainder of which in fee was vested in her husband, dependent on an estate for life in a third person, which said remainder her husband had aliened during the coverture. 1. In England a woman is not dowerable of a trust estate although a husband may be tenant by the curtesy. This is the more remark- able, as dower is the favourite of the common law. A woman has her dower where the husband had only a seisin in law, but a man can- not be a tenant by the curtesy unless there was a seisi^n jii Jact. .\'o good reason has been assigned for excluding the wife of her dower in a trust estate. It rests upon usage, which though not now ap- proved cannot be altered by any authority less than the parliament. In Pe nnsylvania the usage has been more reasonable and more anal- ogous to the general principles of dower. The husband and wife are placed on an equal footing. He has his tenancy by the curtesy, and she has her dower. I do not know that the question has ever been brought to a decision in this Court. The reason of this I take to be, that it has never been doubted. I have frequently heard it taken for granted, but never seriously questioned. I do not under- stand that the learned counsel who now makes the point, supposes the law to be in his favour. But he wishes it to be settled by a sol- emn decision. It is best that it should be so. My opinion is, that 602 DERIVATIVE TITLES (Part 2 by the usage and law of Pennsylvania a woman is dowable of a trtist_ estate.^" 2. By the common law there can be no dower, unless the husband is seised Tn^act or in law of the freehold, as well as the estate of inheritance, during the coverture. This is not questioned by the counsel for the demandant. But he supposed, that in this state the law might be different, in consequence of some provisions in our intestate acts. He has, however, very candidly and very proper- ly declared, that upon examining the act of assembly he finds, that its provisions are not applicable to a case where the husband had aliened his whole interest by deed. That is the present case. The jemandant^ therefore, is not entitled to a recovery of ^ower. Ydat^s, J., and Brackenridge, J., concurred. BATES v. BATES. (Court of Common Pleas, 1697. 1 Ld. Raym. 326.) Dower. The tenant pleads, that the husband ne unques fuit seisie que dower. Upon which issue being joined, the jury find, thit Ralph Bates, husband of the demandant was seised of the lands now dtiiianded for life, remainder to A. and B. trustees for ninety-nine years, re-~ mainder to the heirs of the body of Ralph Bates, &c. et si, &c. And it was argued for the demandant, that the husband died seised of an estate tail executed ; for the intervening estate being for years, ought not to be regarded. That the feoffment of the husband would have discontinued the intail, which proves that he was seised of it. See 2 Bulstr. 29, 30; Cro. Car. 233, 234; 1 Roll. Abr. 632; 8 Vin. 516, b, pi. 2, and that his warranty would have been lineal to a son, which proves that the son is in by descent. ^_contra it was argue d for thg^ jtenant^ that dower was allowed by the law for the support of the wife and her children; and therefore where by such allowance the wife and her children cannot be supported, no dower can be allowed, for lex non facit inutilia. Then dower in these cases, where the mesne term might be for a thousand years, would be so remote, that it would be of no avail to the wife. And as to the objection, that the heir was in by descent; it was answered, that that signifies nothing, because if the intervening estate had been for life, the heir had been in by descent, and yet in such case without doubt the wife is not dowable. This case- was thrice argued at Bar, and at the first argument the Court doubted, because the estate tail is so disjoined by the intervening lease, and though it be vested, it is not executed; and perhaps (they said) the feoffment of the husband would not have discontinued the in- tail. At the second argument Treby, Chief Justice, was of opinion 2 As to the rights of the widow of a trustee or cestui que trust, see Kenne- son. Cases on Trusts, 223 et seq. Ch. 5) ESTATES CREATED 603 for the demandant, because at the instant of the death of the husband ther e was but an estate for years in the trustees, and the estate tail was in the husband; and (by him) the instant should be divided in favour of dower, as Cro. Eliz. 503, Broughton v. Randall. But upon the third argument judgment was given for the demandant upon this reason, bec ausejhe husband had a freehold and inheritance in him, and the_ intervening estate, being only for years, ought not to be regarded. For at common law such a term was a precarious thing, the freeholder might have destroyed it at his pleasure by a feigned recovery. A descent, which tolls an entry, does not disturb a term ; and if tenant for Hfe commits waste, such an intervening term will not obstruct the action of waste, as an intervening estate of freehold would do. And therefore all the Court was of opinion, that such intervening term would not hinder dower, as it would have done if it had been an estate for ITfe,^^ according to the opinion of Perkins, 336, the only au- thority in the books for that resolution, jjidgment was given for the, demandant. -^y^- EDWARDS V. BIBB. (Supreme Court of Alabama, 1875. 54 Ala. 475.) Appeal from Limestone County Court. Heard before Hon. R. S. Watkins. This was a bill in equity, filed by Ann C. Edwards and her hus- band, against Mary P. Bibb individually, and as administratrix of the estate of David Porter Bibb, deceased, and certain of his heirs at law, seeking to have dower allotted to her in certain lands in their possession. The complainant, Ann C, in the year 1857, intermarried with one Thomas Bibb, Jr., and continued to live with him as his wife until his death, and afterwards intermarried with her present husband and co-complainant, Julian T. Edwards. Her claim of dower in said lands arose in this wise: Prior to the year 1840, Thomas Bibb, Sr., (the father of Thomas Bibb, Jr., complainant's first husband,) was seized of a valuable tract of land in Limestone county, the lands in question, known as the "Belmina estate." Thomas Bibb, Sr., died on the 23d day of April, 1840, leaving a last will and testament, which was duly admitted to probate in that county. The will, among other provisions not necessary to be here noticed, devised said Belmina estate, with the exception of a small por- tion, (which he had conveyed to one Jackson,) to testator's wife, Par- melia Bibb, during her natural life, and at her death "untO' my eldest son, Thomas Bibb, and his lawful male issue, and in case my said 21 What would be the situation if the intervening freehold were a conttn- gent estate? 604 DERIVATIVE TITLES (Part 2 son Thomas should die, leaving no lawful male issue, or leaving such male issue, the same should become extinct, before he or they shall arrive at the age of twenty-one years, and likewise leaving no male is- sue, then, and in that case, my will and desire is, that said estate, with the property named and devised to my said wife, shall be- come the property of my son, David Porter Bibb, to descend to the law- ful male issue of him my said sOn Porter." This clause of the will was once before construed in this court, in 3,n ejectment suit brought to recover the lands, in which dower is souglit, from the heirs of David Porter Bibb. See Edwards and Wife V. Bibb et al., 43 Ala. 666. About the year 1855, said Parmelia departed this life, after taking possession of the lands devised to her for life, and thereupon said Thomas Bibb, Jr., entered and took possession, and so remained until his death in 1861, leaving a daughter, the fruit of his marriage with complainant, but never having had any male issue. He left a will from which his widow duly dissented, and which in the view the court took of this case need not be further noticed. In 1865 the said David Porter Bibb entered into possession and so remained until his death in the latter part of that year, intestate. The appellees, Mary P. Bibb, his widow and administratrix, and his heirs at law, were in possession of said lands at the time of the filing of said bill, and had made par- tition among themselves. The chancellor dismissed the bill on demurrer, and hence this ap- peal. [For subsequent opinion, see Bibb v. Bibb, 79 Ala. 437.] Stoxe, J."^^ In the case of Edwards & Wife v. Bibb et al., 43 Ala. 666, die question considered and decided was, whether under the will of Thomas Bibb, Sr., Thomas Bibb, Jr., took an absolute title in fee to the i)roperty therein described as a portion of the Belmina estate, or did it pass to David Porter Bibb on the death of Thomas Bibb, Jr., 'JJeaving^ no lawful male issue." Thomas Bibb, Jr., had died "leaving no lawful male issue." It was then ruled that the words of the will con- stituted a valid "executory devise" of the estate over to David Porter Bibb. An application for a rehearing in that cause was overruled, and the decision became final, settling for all time the rights of the parties to that suit to the property involved therein. The present is an aj^plication by the widow of Thomas Bibb, Jr., for dower in the same lands, the title to which, it was determined in that suit, passed from Thomas Bibb, Jr., and his heirs, by his death, "leaving no lawful male issue." We are asked to review the decision pronounced in that cause. * * * It results from what we have said above, that under the will of Thomas Bibb, Sr., Thomas Bibb, Jr., took an estate, determinable on his dying "leaving no male issue" ; and that inasmuch as he did so die, the 22 A portion of the opinion is omitted. Ch. 5) ESTATES CREATED 605 executory devise over to David Porter Bibb took effect at the death of the former. We shall, consequently, in the discussion of the re- maining questions presented by this record, deal with the subject as if there were no words of entailment in the devise we are consider- ing. Under this will thus construed, Thomas Bibb, Jr., either took a fee simple, having another fee engrafted upon it by way of executory de- vise, to come into being on the happening of an event therein provided for as a conditional limitation, or he took only a life estate, and at his death, his lawful male issue, if he had left such, would have taken as purchasers. If the latter be the true construction of the devise, no one will contend that Thomas Bibb's widow would be dowable of the lands. Supposing, then, that the estate of Thomas Bibb was a de-. feasible fee, the question comes up, is his widow entitled to dower, the estate of her husband having expired with his life? Few questions of the law have been more discussed, or have given rise to more perplexing distinctions than that of the widow's right to (lower in lands, the title to which passed out of her husband con- temporaneously with his death, by force of some limitation, rever- sion or remainder. The case in hand is one of remainder, which has taken effect. The question is thus stated by a very accurate writer: "Is the widow entitled to dower after the estate of her husband has determined, before its natural expiration, by the happening of an event i)articularly mentioned in the instrument creating it, but without disturbing or overreaching his prior seisin?" The case of Buckworth v. Thirkell, is one of the first cases on this question. 3 Bos. & Pul. 652, note. That case came before Lord Mans- field, one of England's greatest jurists, and it was determined that the husband was entitled to curtesy. The rule in regard to dower is the same on this question as that in regard to curtesy. The case of Buckworth v. Thifkell has not had the good fortune of commanding universal assent. Mr. Butler, in his note to Coke upon Littleton, page 141, while conceding that upon the termination of an estate tail by the failure of issue, the right of curtesy or dower will attacli as a prolongation of the estate, yet contended that when a fee simple is determined by a valid executory devise, neither curtesy or dower ensues. Other writers contend for the same distinction. See very full discussions of this question in Park on Dower, page 157 et seq.; 1 Scrib. on Dower, 284 et seq. To follow them through the shadowy mazes of their disquisitions would tend rather to be- wilder than instruct. The human mind is not wont to rest satisfied w^ith disti rictions when it can find no substantial differences to rest th em on. Speaking of dower, as affected by conditional limitations. Chan- cellor Kent says : "The estate of the husband is, in a more emphat- ical degree, overreached and defeated by the taking effect of the limitation over, than in the case of collateral limitation;" and, he 606 DERIVATIVE TITLES (Part 2 adds, "the ablest writers on property law are evidently against the authority of Buckworth v. Thirkell, and against the right of the dow- ress when the fee of the husband is determined by executory devise, or shifting use." 4 Kent's Com. 50. Mr. Jacob, in his learned note published in the appendix to 2 Bright on H. & W. p. 468, says : "Upon the introduction of conditional lim- itations by way of use and executory devises, it became a question whether dower or curtesy should cease when the estate was determined by either of these modes. Upon principle, it would seem that the deci- sion of this question ought to be guided by analogy to the general rule of the common law, and not by analogy to the excepted case of an estate tail. * * * The conditional limitation destroying- the estate, defeats the whole of that which is expressly granted. It would be singular, if that which is included in the grant by implica- tion only, could be preserved." He adds, "The supposed rule, (speak- ing of Mr. Preston's attempt to justify the rule laid down in Buck- worth v. Thirkell,) rests on very doubtful grounds." In New York, it was decided by Chancellor Walworth that where an estate in fee was terminated by the happening of a conditional lim- itation, and the executory devisees took as purchasers, the widow of the first devisee could not have dower. See Adams v. Beekman, 1 Paige (N. Y.) 631. In the case of Weller v. Weller, 28 Barb. (N. Y.) 588, the same question arose as in Adams v. Beekman, supra. The court said, "The widow takes her estate through the husband, and not from him like one who inherits ; for he can do no act which will divest her right. And when the estate of the husband is determined by the happening of an event which defeats its further continuance, the estate in dower must be determined with it. It is a part of the same estate of free- hold and inheritance of which the husband was seized, and, to the ex- tent of it, so much abstracted from what would otherwise descend to the heirs at law. * * * The wife's right to dower ceased with the estate out of which it could only proceed. This conclusion conflicts with Lord Mansfield's judgment in Buckworth v. Thirkell. It is the rule, however, given by Mr. Cruise in his treatise on the law of real property, and is the rule now sustained by Mr. Park with singular ability in his work on the law of dower." Washburn, in his work on Real Property, vol. 1, p. 212, says : "There is a class of cases where, what at first sight might seem to be an incon- sistent doctrine is applied. Thus, in the familiar case of tenant in tail dying without issue, although the estate, as one of inheritance, is determined, and the remainder over upon such a contingency takes effect, yet, it having been an estate of inheritance in the tenant, his widow, if he dies, will be entitled to dower, it being by implication of law annexed to such an estate as an incidental part of it, a portion of the quantity of enjoyment designated by the terms of the limitation itself. And the doctrine is broadly laid down by writers upon the sub- Ch. 5) ESTATES CREATED G07 ject, that wherever the husband is seized during coverture of such an estate, as is in its nature subject to the attachment of dower, the right of dower will not be defeated by the determination of that estate by its regular and natural limitation." He adds : "This class of cases has given rise to much ingenious speculation and grave diversity of opinion, where the estate of the husband is one of inheritance, but ceases at his death by what is called a conditional limitation." The case of Buckworth v. Thirkell was followed in Moody and Wife V. King, 2 Bing. 447; and in this country, in the cases of Milledge v. Lamar, 4 Desaus. (S. C.) 617; Evans v. Evans, 9 Pa. 190, and North- cut V. Whipp, 12 B. Mon. (Ky.) 65. In a later case in South Carolina, Wright V. Herron, 6 Rich. Eq. 339, the court of errors was equally divided, and no decision was pronounced. This case presented the same question as the one presented in Buckworth v. Thirkell. In the case of Evans v. Evans, supra, the opinion of the supreme court of Pennsylvania was pronounced by Chief Justice Gibson — one of the ablest jurists that ever sat on that bench. It will be seen that he was laboring to break down the imaginary distinction attempted to be drawn by Mr. Butler and others between the cases of remainder- over, made and provided to take effect after the termination of an es- tate tail by failure of issue, and the termination of an estate in fee simple by failure of heirs, with a valid limitation over by way of executory devise. He says : "I can not apprehend tlie reason of his [Mr. Butler's] distinction between a fee limited to continue to a par- ticular period at its creation, which curtesy or dower may survive, and the devise of a fee simple, or a fee tail, absolute or conditional, which, by subsequent words, is made determinable upon some particular event, at the happening of which curtesy or dower will also cease." He propounds, and in eft'ect answers, the following pertinent inquiry, "How to reconcile to any system of reason, technical or natural, the existence of a derivative estate, after the extinction of that from which it was derived, was for him [Mr. Butler] to show; and he has not done it." Any attempt to maintain a distinction between the claim of dower or curtesy, when the inheritance in an estate tail has failed, and a limitation over has taken effect, per formam doni, and the same result when an estate in fee has been determined by the happening of the event upon which a conditional limitation over was made to take effect, by the terms of the instrument creating the title, is too artifi- cial and technical to command our assent. Dower is a derivative estate; it is derived from the estate of the husband. It is the creature of the law, not of contract. While the husband lives, there is no es- tate in dower. It is an interest, carved out of, or abstracted from the inheritance ; or out of the estate of the husband's alienee, if the wid- ow survives, and has not delinquished her dower. The husband, by any conveyance made, or recovery suffered by him, cannot bar, or impair her right. 608 DERIVATIVE TITLES (Part 2 When, however, by the very terms of the conveyance or devise, le- gal in form and purpose, the estate of the husband expires with him, cutting off per formam doni, the heritable quality of his estate, and the title passes to another as purchaser by a valid limitation over, the primitive estate is gone, and there is nothing left from which dower can be derived. We do not declare what would be the result, if the case were one of mere reversion to the devisor or grantor. It will be time enough to consider that question when it arises. Decree affirmed. Chief Justice BrickEll, having been of counsel, not sitting.^' ELLIS v. KYGER. (Supreme Court of Missouri, 1SS6. 90 Mo. COO, 3 S. TV. 23.) Black, J. This is a suit for the assignment of dower. One of the plaintiffs, Polly Ellis, and her former husband, Isaac Jacobs, on the thirteenth of November, 1859, conveyed to Frederick Billum, in trust for the Pacific railroad, a parcel of land twelve hundred and sixty- seven feet in length by an average width of five hundred feet. The deed recites that it is made "upon the condition that if the Pacific Rail- road Company shall not construct the said railroad through said tract, or if, when constructed, they shall not establish a freight and pas- senger station upon said tract, then the conveyance shall be null and void, but otherwise to remain in full force and eff'ect." Isaac Jacobs died in 1863. The railroad was completed to a point beyond the tract of land in question in 1865. There was evidence, the bill of exceptions recites, tending to show that the company failed to per- form the conditions in the deed, and evidence to the contrary effect. In 1869, Asa Whitehead procured deeds from some of the heirs of Jacobs, and in that year built a house upon the lots in question, which was destroyed by fire. Neither Jacobs in his lifetime, nor his heirs, ever entered or made any effort to recover the property for condition broken. In 1878, Coventry, Cockrell and Zoll, who had acquired the title of Whitehead and the other heirs of Jacobs, quit-claimed a part of the premises described in the deed to the trustee of the railroad company, and the company at the same time quit-claimed the residue to them, from whom defendant acquired his title. The trial court gave an instruction that, upon the evidence the plaintiffs could not recover. That the conditions in the deed for the construction of the railroad through the land therein described, and the establishment of a freight and passenger depot thereon, were conditions subsequent, is too clear to call for the citation of author- ities. The trustee became seised of the premises, though the estate in him continued defeasible until the conditions were performed, 23 See notes to Lessee of Borland v. Marshall, supra, 5S8. Ch. 5) ESTATES CREATED 609 waived, released, or barred by the statute of limitations, or by estop- pel. As no time was fixed within which the conditions were to be per- formed, the law would allow the company a reasonable time. 2 Wash. Real Prop. (4th Ed.) 1. Since the railroad was completed to a point beyond the land in question, in 1865, a reasonable time has long since elapsed; and we must assume, under the instructions given, that the company has failed to perform the stipulations in the deed to the trustee. It is well settled that an action of ejectment may be maintained by the grantor or his heirs for condition broken, without any entry or demand of possession. Austin v, Cambridgeport Parish, 21 Pick. (Mass.) 215; Plumb v. Tubbs, 41 N. Y. 442; Cowell v. Spring Co., 100 U. S. 55, 25 L. Ed. 547. Our statute with respect to actions of ejectment leads to the same conclusion. R. S., 1879, §§ 2240-47. But it is equally well settled that non-performance of the condition alone does not divest the estate. Performance of the condition may be waived ; and the estate continues in the grantee after the breach until he, who has a right to insist upon performance, elects to declare a forfeiture. The estate continues with its original incidents until entry or some act equivalent to it. 4 Kent, 127; 2 Wash. Real Prop. (4th Ed.) 12; 1 Smith's Lead. Cas. (8th Ed.) 130; Memphis & C. R. Co. V. Neighbors, 51 Miss. 412 ; Kenner v. Contract Co., 9 Bush (Ky.) 202 ; Knight V. Railroad, 70 Mo. 231. The grantee in the deed of trust, therefore, continued to be the owner of the premises at and after the death of Jacobs, who was not seised at any time after the delivery of the deed. A widow is entitled to be endowed in all the lands of which her husband, or any person to his use, was seised of an estate of in- heritance at any time during the marriage, to which she shall not have relinquished her dower. R. S. 1879, § 2186. As the plaintiff here relinquished her dower by deed duly acknowledged, and her hus- band did not enter for condition broken, and was, therefore, not seised of the premises in dispute at any time after the delivery of the deed, it would seem to follow that the plaintiff is not entitled to dower. Washburn says, it is enough that the husband had a seisin in law, with the right to an immediate corporal seisin. If it was not so, it might often be in the husband's power, by neglecting to take such seisin, to deprive his wife of her right to dower. 1 Wash. Real Prop. (4th Ed.) 215: But here the husband made no entry, nor was he seised in law. The same author in the same connection says, if, at common law, the husband had not, during coverture, anything more than a mere right of entry or of action to obtain seisin, it would not be sufficient to entitle his widow to dower. The mere right of entry upon lands was not suf^cient to give dower. 1 Scrib. on Dower, 243. If the husband dies before entry, in a case of forfeiture for condition broken, his wife is not dowerable, because he had no seisin, either in fact or law. 4 Kent (13th Ed.) 38. In Thompson v. Thompson, 46 N. C. 431, the court said, Aig.Pbop. — 39 610 DERIVATIVE TITLES (Part 2 by way of illustration: "So where one makes a feoffment upon con- dition, and dies after condition broken, but without revesting his es- tate by entry, and afterwards the heir enters and revests the estate, the widow is not entitled to dower." It results from what has been said, both upon principle and au- thority, that the plaintiff is not entitled to dower in the premises in question. The result would be the same had the heirs of Isaac Jacobs, and not their grantees only, entered for breach of the condition in the deed to Billum. It is further insisted by the appellants that the defendant is estop- ped from denying plaintiff's right to dower. This contention is based upon the fact that the defendant's grantors acquired possession and claim of title, at least, from Whitehead, who made claim and took possession alone under his deeds from the heirs of Isaac Jacobs. The authorities all show that the right to enter for condition broken descended to the heirs of Jacobs, the right not having been exercised by him in his lifetime. But though this be true, it does not follow that the widow would, for that reason, be entitled to dower. We have seen that she would not be entitled to dower because her husband was not seised, either in fact or law. There is, therefore, nothing in- consistent between a claim under them, and the claim that the widow should not be endowed. It is urged that the general common law rule, which confined the right to take advantage of the non-performance of a condition sub- sequent annexed to an estate in fee to the grantor or his heirs, has been modified by our statutes with respect to conveyances. We do not stop to consider this question, for it cannot affect the result before reached in this case. The judgment is, therefore, affirmed. All concur. WALLIS V. DOE ex dem. SMITH'S HEIRS. (High Court of Errors and Appeals of Mississippi, 1844. ? Smedes & M. 220.) Appeal from the circuit court of Holmes county. This was an action of ejectment, brought by the heirs at law of Chafin Smith, to the October term, 1839, of the circuit court of Holmes county, to recover a tract of land lying in that county. The declara- tion and notice were served on Joseph Wallis, who, at the July special term, 1840, appeared, and caused himself to be made defendant, con- fessed the lease, entry, and ouster, &c., and pleaded not guilty. On the trial it was proved that the plaintiffs were the heirs at law of Chafin Smith, who in his life-time was admitted to have had title to the land in dispute, that he lived upon it, and, at the time of his death, it was his homestead ; that Joseph Wallis purchased it, at sheriff's sale, under an execution against Jane Smith, who was the widow of said Chafin Smith, and claimed it by virtue of said purchase ; that at the time of the Ch. 5) ESTATES CREATED 611 commencement of the suit, the land was in possession of one Martin, who held and claimed it as his own; that Joseph Wallis sold it to said Martin, but none of the witnesses knew of any written contract be- tween them, or conveyance to Martin. The defendant's counsel then read to the jury the execution, sheriff's return thereon, and the deed under which he purchased and claimed. It was admitted that the widow was still living. No further evidence being offered by either party, the defendant's' counsel moved the court to instruct the jury. 1st. That if they believed, from the evidence, that Jane Smith was the widow of Chafin Smith, and that he owned and lived upon the lands in dispute, at the time of his death, and that the same have been purchased by the defendant, under executions against her, and that she is still living, that unless they are satisfied, from the evidence, that her dower in his lands has been assigned to her, they must find for thf defendant. 2d. That the widow of a decedent is, by law, entitled to the posses- sion of the tract of land constituting the homestead of her husband, at the time of his death, until her dower in his lands is assigned to her. 3d. That unless the jury believe, from the evidence, that the defend- ant was in possession, at the time of the service of the declaration in this cause, they must find for the defendant. 4th. That the deed of the sheriff conveys only such title as Jane Smith herself could lawfully have made. All of which the court refused to give, and, at the request of the plaintiff's counsel, instructed the jury, "That if they believe, from the testimony, the defendant, either in his own person, or by another claiming under him, was in possession of the land, at the time of bringing the suit, it is sufficient proof of possession, to entitle the plain- tiff to recover, so far as possession is concerned." To all of which the defendant's counsel excepted. The jury found for the plaintiffs, and the court rendered judgment accordingly. The defendant's counsel then moved for a new trial ; his motion was overruled, and he appealed to this court. The errors assigned are, the refusal of the court below to give the instructions asked by the defendant, and giving that asked for by the plaintiffs. Clayton, J. This was an action of ejectment, brought by the de- fendants in error as the heirs of their ancestor, to recover a tract of land in Holmes county. Two errors are assigned for reversing the judgment. It is first objected that the land was the homestead or place of resi- dence of Smith, the ancestor, at the time of his death, that he left a widow who, under the statute, is entitled to the premises until her dower is assigned to her, and that the plaintiff in error claims under the widow as the purchaser of her interest at execution sale. At common law the widow had a right to remain in the mansion- house of her deceased husband for forty days after his death, within 612 D'ERivATivE TITLES (Part 2 which time it was the duty of the heir to assign her dower. But before such assignment she could not maintain ejectment for it. Adams on Ejectment, 65 ; 1 Th. Coke, 601 ; 2 C. & P. 430. She has no vested es- tate for Hfe in any particular part, until after allotment. 4 Kent, 62. The right of quarantine, or the right to remain in possession of the mansion-house, is by our statute extended, so as to enable her to retain it free from molestation and rent, until her dower is assigned. H. & 'H. 353. Under a similar statute in New Jersey it has been decided, that an action of ejectment will not lie against her, unless her dower had been previously assigned. Den v. Dodd, 6 N. J. Law, 367, This decision is against the weight of English and American authorities, in states in which no such statute exists ; but it may be a just construc- tion, and applicable to our own statute.^* But be this as it may, this right of enjoyment of the mansion-house, we regard as a mere personal privilege, one which cannot be transferred to a third person ; and that such third person claiming under her may be put out by the heir, and driven to the remedy to recover the dower. Until assignment the wid- ow has no estate in the lands, and her claim is a mere charge or incum- brance upon them. We think therefore, that this defence cannot be sustained. See 4 Kent, 61.^** * * * Judgment is therefore reversed and a new trial granted. FLYNN V. FLYNN. (Supreme Judicial Court of Massachusetts, 1S9S. 171 Mass. 312, 50 N. E. 650, 42 L. R. A. 98, 6S Am. St. Rep. 427.) Lathrop, J. The land in which the plaintiff had an inchoate right of dower was taken by the city of Boston by right of eminent domain, for the purposes of a schoolhouse, the city acting by virtue of and in accordance with the provisions of the St. of 1895, c. 408. This act, in sec. 2, gives the board of street commissioners of Boston, at the request of the school committee, power to "take by purchase or otherwise such lands for school purposes as said school committee, with the approval of the mayor, shall designate, and to take any lands under the right of eminent domain." The board is also required to "sign, and cause to be recorded in the registry of deeds for the county of Suffolk, a statement containing a description thereof as certain as is required in a common conveyance of land and stating that the same are taken for school pur- poses ; and upon the recording of any such statement the lands described therein shall be taken in fee for said city." We assume that all the for- malities required have been complied with, and that the city now owns the land in fee. 24 See Callahan v. Nelson, 128 Ala. 671, 29 South, 555 (1900). 26 The balance of the opinion, in which the court concluded that the portion of the c'harge regarding the sufficiency of the proof of possession to entitle the plaintiff to recover was erroneous, is omitted. Ch. 5) ESTATES CREATED 613 The question then is whether an inchoate right of dower is such an interest in land that, when the land is taken by the right of eminent domain, the wife may apply to a court of equity to have in some way the benefit of such interest. We are not aware that this right has ever before been asserted in this Commonwealth, and this is the first time that the question has been presented for our decision. It is declared by the Pub. Sts. c. 124, § 3, as follows : "A wife shall be entitled to her dower at common law in the lands of her deceased husband." This chapter makes many provisions in regard to dower, but there is none which relates to the question before us. At common law, "a woman is entitled to dower out of all the lands whereof her husband was seised in fee simple, at any time during the coverture." 1 Greenl. Cruise, 175. There is no doubt that the inchoate right of dower is an encum- brance upon land. Shearer v. Ranger, 22 Pick. 447. The release of such a right of dower is a good consideration for a promise. Bullard v. Briggs, 7 Pick. 533, 19 Am. Dec. 292; Holmes v. Winchester, 133 Mass. 140; Nichols v. Nichols, 136 Mass. 256. It is a contingent right, which the wife during coverture may have the assistance of the court to establish or protect. Burns v. Lvnde, 6 Allen. 305 ; Davis v. Weth- erell, 13 Allen, 60, 90 Am. Dec. 177; Madigan v. Walsh, 22 Wis. 501; Clifford v. Kampfe, 147 N. Y. 383, 42 N. E. 1 ; Buzick v. Buzick, 44 Iowa, 259, 24 Am. Rep. 740. So, too, a wife having an inchoate right of dower may maintain a bill in equity to redeem land from a mortgage in which she has joined with her husband to release dower. Davis v. Wetherell, 13 Allen, 60; Lamb v. Montague, 112 Mass. 352. See Pub. Sts. c. 124, § 5. But if the mortgage contains a power of sale, and the wife has joined in the deed with her husband in release of her dower, a sale of the land in pursuance of the power bars all claim and possibility of dower. Pub. Sts. c. 181, § 19. While a wife may, under Pub. Sts. c. 124, § 6, bar her right of dower by releasing the same in a deed executed by her husband, or by a subse- quent deed executed either separately or jointly with her husband, yet she cannot convey her inchoate right of dower to a person to whom her husband has not conveyed the land. Such a deed is void. Mason V. Mason, 140 Mass. 63, 3 N. E. 19. See also Reiff v. Horst, 55 Md. 42. In Mason v. Mason, it was said by Mr. Justice Devens : "While the inchoate right of dower is a vested right of value, dependent on the contingency of survivorship, it is not that separate property which passes by conveyance, but a right which one entitled thereto may, un- der certain circumstances, release. It is of a peculiar character, and, before assignment, the wife has no seisin." While the word "vested" is used in this case, it would seem that the word "contingent," which was used by Chief Justice Parker in Bullard v. Briggs, 7 Pick. 533, 539, 19 Am. Dec. 292, would more accurately describe the nature of the estate. After an assignment of dower is made, the widow acquires no new freehold, her seisin being deemed in contemplation of law a con- 614 DERIVATIVE TITLES (Part 2 tinuation of her husband's seisin. Windham v. Portland, 4 Mass. 384, 388. Even after the death of the husband, a creditor cannot at law attach the right of the widow to have her dower assigned to her, or take the same on execution. McMahon v. Gray, 150 Mass. 289, 22 N. E. 923, 5 L. R. A. 748, 15 Am. St. Rep. 202. Until dower has been assigned to her, a widow has no estate in the land of her deceased husband. Smith V. Shaw, 150 Mass. 297, 22 N. E. 924; State v. Wincroft, 76 N. C. 38. Nor can she object to a partition of the land among the tenants in common. Motley v. Blake, 12 Mass. 280; Ward v. Gardner, 112 Mass. 42. There can be no doubt that the inchoate right of the wife is always subject to any encumbrance or infirmity in the husband's title existing at the time he became seised ; and we are also of opinion that it is subject to any incident attached to it by law. The land may be sold on a petition for partition, if the husband is a tenant in common. Pub. Sts. c. 178, § 65. When this happens, it has been held in a well con- sidered case in Indiana that the wife is not a necessary party to the partition proceedings, and is not entitled to share in the fund derived from the sale. Haggerty v. Wagner, 148 Ind. 625, 48 N. E. 366, 39 h. R. A. 384. Land may be sold for taxes, and if there is a surplus it is to be paid "to the owner of the estate." Pub. Sts. c. 12, § 35 ; St. 1888, c. 390, § 40. In a case arising under a New York statute, which directed that any surplus arising on a tax sale "shall be held for the use of and paid over to the person legally entitled upon his establishing his right there- to," it was held that the owner of the land was entitled to the surplus. People V. Palmer, 10 App. Div. 395, 41 N. Y. Supp. 760. It was also held in this case that the interest which the wife of the owner had in the land by virtue of her inchoate right of dower, although a valuable interest, was not an "estate" in the land which would give her a right to redeem from the tax sale, under a statute giving a right to redeem to "any person or persons having an estate in, or any mortgagee of" any land sold for taxes. It is also an incident of land that it is liable to be taken by the right of eminent domain, and we are of opinion that when it is so taken in the lifetime of the husband, the wife is not entitled, on account of her inchoate right of dower, to have any portion of the money received for the land either paid to her directly, or set aside for her benefit on the contingency of her surviving her husband. If the land had not been taken, the husband could have done what he pleased with it during his life. He might have sold it for its full value, yet the wife could not interfere, or deprive him of the use of any part of the purchase money. In case the husband survived the wife, the purchaser would have a good title, which the heirs of the wife could not interfere with. If the chief value of the estate should consist of a building on the land, which was insured by the husband, and the building should be destroyed by fire. Ch. 5) ESTATES CREATED 615 no one would contend tliat the wife had any interest in the insurance money, or that a court of equity would compel a part of the money to be set aside for her benefit unless the husband would agree to rebuild the house. Again, if a parcel 'of land should be washed away by the negligent maintaining of a dam, and the owner of the land should recover as damages the full value of the land, would not the money so received be his to do with as he pleased? The only case in support of the doctrine contended for by the peti- tioner which has been decided by a court of last resort is that of Wheel- er V. Kirtland, 27 N. J. Eq. 534, decided in 1875 by the Court of Errors and Appeals in New Jersey. It laid down a new doctrine, which has not since been recognized except by a court of inferior jurisdiction, and which we are of opinion is opposed to sound principles. The case of Wheeler v. Kirtland was partly decided on the ground that the rule laid down in Moore v. New York, 8 N. Y. 110, 59 Am. Dec. 473, had been repudiated or modified in later decisions in that State, citing In re Central Park Extension, 16 Abb. Prac. 56, 68, and Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523. In Moore v. New York, 8 N. Y, 110, 59 Am. Dec. 473, lands in which the wife had an inchoate right of dower were taken by the right of eminent domain. After the husband's death, his wife claimed dower in them. The stat- ute under which the land was taken authorized commissioners to make "a just estimate of the damage to the respective owners, lessees, par- ties, and persons respectively entitled unto or interested in the hands." It was said by Gardiner, J. : "The question is whether the possibility of dower accruing to the wife after marriage, but before the death of the husband, is an interest in law, within the purview of this statute. * * * Such a possibility may be released, but it is not, it is be- lieved, the subject of grant or assignment, nor is it in any sense an in- terest in real estate." It was held in In re Central Park Extension, 16 Abb. -Prac. 56, 69, on the authority of Moore v. New York, that the inchoate right of dower was not an interest in real estate, Judge Ingraham, however, added, after quoting the remarks of Gardiner, J. : "It might have been added to that case, that the right was transferred from the land to the money received for the land by the husband, if the wife survived him." The case of Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523, merely decides that, if a husband is induced to part with his land by fraud, his wife has such an interest that she can join witli him in an action against the fraudulent purchaser. The rule laid down in Moore v. New York, so far from being re- pudiated or modified in that State by later decisions, has been recog- nized and affirmed by the Court of Appeals, Witthaus v. Schack, 105 N. Y. 332, 11 N. E. 649, where it is said by Ruger, C. J. : "The settled theory of the law as to the nature of an inchoate right of dower is that it is not an estate or interest in land at all, "but is a contingent claim arising not out of contract, but as an institution of law, constituting 616 DERIVATIVE TITLES (Part 2 a mere chose in action incapable of transfer by grant or conveyance, but susceptible only during its inchoate state of extinguishment. By force of the statute this is effected by the act of the wife in joining with her husband in the execution of a deed of the land. Such deed, so far as the wife is concerned, operates as a release or satisfaction of the interest and not as a conveyance, and removes an encumbrance in- stead of transferring an interest." See also Hammond v. Pennock, 61 N. Y. 145, 158. The only case which has been brought to our attention that has fol- lowed Wheeler v. Kirtland is In re New York & Brooklyn Bridge, 75 Hun, 558, 27 N. Y. Supp. 597, and 89 Hun, 219, 34 N. Y. Supp. 1002. But the view taken of the nature of the inchoate right of dower in this case does not seem to be in conformity with the cases above cited from the higher courts of New York. In the cases of Bonner v. Peterson, 44 111. 253, and In re Hall's Es- tate, L. R. 9 Eq. 179, cited by the plaintiff, the husband had died, and the widow's right of dower was no longer inchoate when the land was taken. For the reasons before stated, we are of opinion that the bill should be dismissed. So ordered.^* CRENSHAW v. MOORE. (Supreme Court of Tennessee, 1911. 124 Tenn. 528, 137 S. W. 924.) Lansdun, J. William R. Moore died in Shelby county testate, and his widow, Mrs. Charlotte Blood Moore, dissented from his will. Such proceedings were had in the county court of Shelby county that she was assigned a year's support, to the value of $20,000, and dower of one-third of his real estate. The complainant brought this suit to collect from her an inheritance or succession tax on both her year's support and dower, under the act of 1893 (Shannon's Code, section 724), as amended by chapter 479 of the Acts of 1909. The act of 1893 imposed a tax upon "all estates, real, personal, and mixed, of every kind whatsoever, situated within this State, whether 2 6 Cf. French v. Lord, 69 Me. 5.S7 (1S79) ; Borough of York v. Welsh. 117 Pa. 174, 11 Atl. 390 (1SS7). See Benton v. City of St. Louis, 217 Mo. 687, 118 S. W. 418, 129 Am. St. Rep. 5G1 (190S). In BroAvn v. Brown, 82 N. J. Eq. 40, 88 Atl. 186 (1913), the court entertained a bill in equity by a wife to protect her inchoate dower in certain lands held by the defendant in trust for her husband against a possible conveyance to an innocent purchaser. See, too, Brown v. Brown, 94 S. C. 492, 78 S. E. 447 (1913). where it was held that under some circumstances a court of equity would inter- fere to protect a wife's inchoate dower against waste. But see Rumsey v. Sul- livan, 166 App. Div. 246, 150 N. Y. Supp. 287 (1914). In Whiting v. Whiting (Me.) 96 Atl. 500 (1916), the plaintiff, who had been induced by fraudulent representatiois of her husband to join in a deed of his land, was held entitled to maintain a bill in equity against him to have him declared a trustee of a certain portion of tlie purchase price for her benefit. The plaintiff's only interest in the laud was her contingent interest provided for by the statute in place of the common-law dower. Ch. 5) ESTATES CREATED 617 the person or persons dying seized thereof be domiciled within or out of this State, passing from an)' person who may die seized or possessed of such estates, either by will or under the intestate laws of this State, or any part of such estate or estates, or interest therein, transferred by deed, grant, bargain, gift, or sale, made in contemplation of death, or intended to take effect in possession or enjoyment after the death of the grantor or bargainor," passing to collateral kindred of the own- er ; and section 20, ch. 479, Acts of 1909, provided "that inheritances not taxed under the present laws shall pay a tax as follows : All in- heritances of $5,000 and over, but less than $20,000, a tax of one per centum of their value. All inheritances of $20,000 and over, a tax of one and one-fourth per centum of their value, to be collected by the county clerk of each county." This is a privilege tax imposed on the right of acquiring property by succession. State v. Alston, 94 Tenn. 674, 30 S. W. 750, 28 L- R. A. 178; Knox v. Emerson, 123 Tenn. 409, 131. S. W. 972. Like- wise it is a special tax, and the rule is that laws imposing such taxes are to be construed strictly against the government, and favorably to the taxpayer. English v. Crenshaw, 120 Tenn. 531, 110 S. W. 210,. 17 L. R. A. (N. S.) 753, 127 Am. St. Rep. 1025. The widow's year's support is given her by statutory provision, which is found in sections 4020 and 4021 of Shannon's Code. It is inconceivable that the legislature intended to levy the tax in question upon this bounty of the widow, given her by the law out of her hus- band's personal estate. She does not succeed to the husband's title to the property set apart to her as a year's support, but acquires it ad- versely to his administrator by virtue of the statute. By the act of separation of the personalty assigned to her by the commissioners, and the subsequent confirmation of their report by the court, the title to the specific property thus set apart becomes absolutely vested in the widow. The obvious intention of the legislature in passing this statute was to provide a temporary support for her and her family immediately on the death of her husband. It is an extension by law of her right of support out of the personal estate of her husband for one year^after his deatli, and is founded in a sound public policy, which has for its purpose a conservation of the family upon the death of the husband. The widow does not succeed to the right of the husband, nor does she take the property under the intestate laws of this State. It is a spe- cial provision made for her in the law for the support of herself and her family. Bavless v. Bayless, 4 Cold. 363 ; Railway Co. v. Kennedy, 90 Tenn." 185, 16 S. W. 113. Nor do we think that the widow's dower is subject to this tax. By the common law, if a husband acquire an estate which is subject to descend to his heirs, the wife, at the same time the husband acquires his title, has vested in her the right of dower ; and although the hus- band aliened the estate, the wife's dower would attach. By the acts of 1784 and 1823, carried into Shannon's Code at section 4139, the widow 618 DERIVATIVE TITLES (Part 2 is dowable in one-third part of all the lands of which her husband died seized and possessed, or of which he was equitable owner. In all other respects, the widow's right of dower in this State is the same as it was at common law. It has the same qualities as the common- law right of dower, but its quantity was cut down by the statutes re- ferred to. This right originates with the marriage. It is an incum- brance upon the title of the heir at law, and is superior to the claims of the husband's creditors. Its origin is so ancient that neither Coke nor Blackstone can trace it, and it is as "widespread as the Christian religion and enters into the contract of marriage among all Christians." "By a fiction of law, the estate in dower relates to the marriage. It is adjudged in Ful wood's Case, 4 Co., 65, that the widow shall hold her dower discharged from all judgments, leases, mortgages, or other incumbrances made by her husband after the marriage, because her title, being consummated by his death, has relation to the time of the marriage, and, of course, is prior to all other titles. She claims by and through her husband, has the oldest title, is under him for the valuable consideration of marriage, the best respected in the law, and cannot be disturbed by any other claiming under the husband." Combs V. Young, 4 Yerg. 226, 26 Am. Dec. 225. The preamble to the act of 1784, which was the first passed in this State reducing the quantity of the widow's dower estate, recites, in substance, that the dower allotted by law in lands for widows, in the then unimproved state of the country, was a very inadequate provision for the support of such widows; that it was only just and reasonable that those who, by their prudence, economy, and industry had con- tributed to raise up an estate to their husbands, should be entitled to share in it — thus showing that the legislature recognized that the widow's dower under this act had the same origin and was of the same quality as her dower existing at common law. So, it is seen that, whether it be considered that the widow holds her dower in the nature of a purchaser from her husband by virtue of the marriage contract, or whether it be merely a provision of the law made for her benefit, it cannot be considered that her right is in succession to that of her husband upon his death, or that the husband bestows it upon her in contemplation of death. While it is true that her right to dower is not consummated until the death of the husband, and that it is carved out of only such realty as he owned at his death, it does not follow from this premise that the widow succeeds to his title by the intestate laws. She derives it by virtue of the marriage, and in her right as wife to be consummated in severalty to her upon tlie death of her husband. Boyer v. Boyer, 1 Cold. 14. The supreme court of Illinois, in Billings v. People, 189 111. 472, 59 N. E. 798, 59 L. R. A. 807, upon a construction of the inheritance tax law of that State, together with tlie laws governing the descent and distribution of the property of persons dying intestate reached a dif- ferent conclusion from that reached by us. The reasoning of tliat Ch. 5) ESTATES CREATED 619 court is predicated chiefly upon a construction of the statutes of that State, which are essentially different from those of this State. It is stated, however, that, while the husband cannot deprive his wife of her inchoate right of dower, the State may, and that she does not hold by contract, but holds by laws which the State may change. With- out undertaking to meet all of the arguments set forth in support of this very able opinion, we are content to hold that, under a proper construction of the statute in question, the legislature did not intend to tax the widow's dower as an inheritance from the estate of her husband, or a succession to his rights therein. As stated heretofore, she does not inherit from her husband, but derives her right by virtue of her marriage, which is consummated upon her husband's death, and becomes an incumbrance upon the inheritance of the heirs at law, and is, to that extent, an interest adverse to the inlieritance from the husband. For the same reason she does not succeed to the rights of the husband. Her dower is intended for her support and maintenance, and an intention to tax it will not be imputed to the legislature, except where the language employed makes it plainly imperative to do so. Billings V. People, supra, is the only case cited by counsel which discusses the question at issue in any way, and no case is cited dis- cussing the liability of the widow's year's support for the tax involved here. But, upon reason, we are content to hold that neither the year's support nor dower is subject to the tax. It results that the decree of the court below is affirmed, with costs.^^ INGRAM V. MORRIS. (Superior Court of Delaware, 1844. 4 Har. 111.) Summons in dower. Plea, that the land was sold on a judgment against the husband, which was -a lien thereon at the time of the mar- riage. Replication and issue. It was admitted that Samuel Ingram was seized of an estate of in- heritance in the premises at the time of the marriage. The judgment upon which the land was sold bore date on the same day of the mar- riage, and there was no evidence which, in pwint of time, preceded the other. Yet the title of the widow of Samuel Ingram to dower de- pended on this question; for if the judgment was a subsisting judg- ment at the time of the marriage, the sale of the land which was after- wards made in execution of that judgment discharged the land of 2 7 See In re Estate of Sanford, 91 Neb. 752, 137 N. W. SG4 (1912) ; In re Bul- len's Estate (Utah) 151 Pac. 533 (1915), ace. See, also, In re Estate of Strahan, 93 Neb. 828, 142 N. VV. 678 (1913), enlarged statutory substitute for dower; Kohny v. Dunbar, 21 Idaho, 258, 121 Pac. 544, 39 I.. R. A. (N. S.) 1107, Ann. Cas. 1913D, 492 (1912), community proiierty ; In re Thompson's Estate, 85 Misc. Rep. 291, 147 N. Y. Supp. 157 (1914), tenancy by entireties. 620 DERIVATIVE TITLES (Part 2 dower, if the marriage took place before the judgment was entered, the wife's right to dower attached and could not be divested by a judgment subsequently entered. Ridgely, for the claimant, argued that the claim of dower was a favored claim; and, in the absence of evidence, the jury would imply in favor of dower. He showed that the judgment was entered on a bond, dated many months before, and argued that the delay of enter- ing the judgment should be considered to the prejudice of the party claiming under it; that the burthen of proof was on the defendant, who pleaded an affirmative plea in derogation of this favored right. Jenkins' Rep. 274 ; Parke on Dower, 2. Wootten, contra, argued from the fact of the entry of judgment on the day of the marriage, that the inference should be made that it was entered before the marriage, for the very purpose of binding tlie land so as to prevent the right of dower ; that the common usage of the country was, for marriage to take place in the evening, after the usual hour of doing business in tlie public offices ; and that if the marriage and entry of judgment were at the same moment the wife would not be dowable, for his seizin otherwise than as subject to dower, would be only momentary. And such a seizin gives no right to dower. 1 Johns. Dig. 518; Stow v. Tifift, 15 Johns. (N. Y.) 458, 8 Am. Dec. 266. The jury rendered a verdict for the demandant GRADY V. McCORKLE. (Supreme Court of Missouri, 1874. 57 Mo. 172, 17 Am. Rep. 676.) Wagner, J., delivered the opinion of the court. This was a suit commenced in the Circuit Court of Howard county, against the defendants, the widow and heirs of Leonard Grady, de- ceased, for the assignment of dower in certain real estate. From the record it appears, that in the year 1859, William Grady, the plaintiff's husband, was seized of the land in controversy, and agreed with his son, Leonard Grady, that if he would go on the land and improve it, he would convey the same to him by deed, by way of advancement, and charge him with its value at the time he took possession. Under this agreement Leonard took possession of the land and made improvements on the same, and continued to reside on and cultivate it up to the time of his death. William Grady died without having conveyed the land according to the agreement, and without having fixed any price thereon, to be charged as an advancement. In the year 1865, after the death of William and Leonard, the fa- ther and son, the widow and heirs at law of Leonard, who are the defendants in the present case, filed their petition in the Circuit Court Ch. 5) ESTATES CREATED 621 against the plaintiff and the heirs of William, setting out the facts as above stated, and praying the court to decree that the land should be held by them as the widow and heirs of Leonard, as if the same had been conveyed to him by William in his life time, and to fix a valuation thereon, at which they should be charged for the same. In this proceeding plaintiff v)as duly served with process, but made no answer. The court made a decree in accordance with the prayer of the petition, declaring that the land "described be, and the same is hereby vested in the plaintiffs, to be held by them as if the same had been conveyed by said William Grady in his life time, to the said Leonard Grady, and that the title of defendants, as the widow and heirs of William Grady be divested." The court below held that this decree barred the plaintiff, the widow of William Grady, from having any dower in the premises, and this is the only question in the case. The statute provides that "every widow shall be endowed of the third part of all tlie lands whereo-f her husband, or any other person to his use, was seized of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished her right of dower, in the manner prescribed by law, to hold and enjoy during her natural life." 1 Wagn. Stat. p. 538, § L The right of dower attaches whenever there is a seizin by the hus- band during the marriage, and unless it is relinquished by the wife in the manner prescribed by law, it becomes absolute at the husband's death. After the right of dower has once attached, it is not in the power of the husband alone to defeat it by any act in tlie nature of an alienation or charge. It is a right in law, fixed from the moment the facts of marriage and seizin concur, and becomes a title paramount to that of any person claiming under the husband by subsequent act. Co. Litt. 32a. The alienation of the husband, therefore, whether voluntary, as by deed or will, or involuntary, by proceedings against him or otherwise, will confer no title on the alienee, as against the wife in respect of her dower. It is a necessary consequence of this rule, that all charges or deriva- tive interest created by the husband, subsequent to the attachment of the wife's right, are voidable as to that part of the land which is re- covered in dower. As the husband cannot defeat his wife's dower by any alienation of the land by himself alone, so neither can he bind her by any modification of the nature of the seizin, nor by any merger or extinguishment produced by his own act without her concurrence. Scribn. Dower, 577. In conformity with these principles, it has been held that if a woman, after she becomes a widow, is made a party to a suit to foreclose a mortgage executed by the husband alone, and no allegation be made in the petition in reference to her claim for dower, the decree will not be considered as affecting her dower estate. Lewis v. Smith, 9 N, 622 DERIVATIVE TITLES (Part 2 Y. 502, 61 Am. Dec. 706; Thompson v. Reeve, 12 Mo. 157; Crenshaw V. Creek, 52 Mo. 98; Freem. Judg. § 303. Neither the petition nor the decree in the case of Leonard Grady's widow and heirs v. WiHiam Grady's widow and heirs, made any men- tion of the subject of dower, nor was it at all litigated or drawn in question. The whole object, extent and scope of that proceeding was to have the agreement and undertaking of William Grady specifically performed. The rights against the widow and heirs were precisely the same as they would have been against William Grady, had he been alive and made a party to the suit. But a suit against him would not have affected his wife's right to dower, without any concurring act on her part. The decree divested his title out of the widow and heirs, and vested it in the widow and heirs of his son. Nothing more was attempted and nothing more was done. The question of the plaintiff's right of dower' was neither raised nor decided, and was not made a subject of adjudication in the suit for specific performance. The plaintiff did not answer, and although she was perhaps properly made a party, my conclusion is, that she is not barred from claiming her dower interest in the land — she having done nothing to relinquish the same. Wherefore the judgment must be reversed and the cause remanded; the other judges concur.^ ^ CATLIN V. WARE. (Supreme Judicial Court of Massachusetts, 1812. 9 Mass. 218, 6 Am. Dec. 56.) This was a writ of dower, to which the tenant pleaded in bar: 1st That the demandant's husband Joseph Catlin was never seized, &c. on which issue was joined. 2d That the said Joseph, being seized in his demesne as of fee, on the 28th day of March, 1793, by his deed of that date duly acknowledged, &c. for a valuable consideration, bar- gained 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 seized in fee of the same premises, free and exempt from all claim, demand or right of dower of the said Abigail therein. 2 8 Cf. Phillips V. Phillips, 30 Colo. 516, 71 Pac. 363 (1903) ; Ligare v. Semple, 32 Mich. 438 (1875). But see Bennett v. Harms, 51 Wis. 251, 8 N. W. 222 (18S1). Ch. 5) ESTATES CREATED 623 The demandant replied, that she did not by her act and consent signified, &c. bar herself, &c. and tendered an issue to the country, which was joined by the tenant. The several issues thus joined were tried at the last April term of this court in this county, before Sedgwick, J., from whose report it appears, that the seisin of the demandant's husband and her coverture were agreed, as alleged in the writ. The tenant produced the deed of Joseph Catlin to David Horton, mentioned in the pleadings. It purported a conveyance in fee of the land, in which dower 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 tlierein purporting or implying a release of her right of dower. The deed was acknowledged by tlie husband, and recorded ; but there was no acknowledgment by the wife. 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 favour of the demandant; referring to the decision of the court, the question whether that direction was right. It was also referred to the court to determine any question which might arise from the finding of the jury, respecting the improved value of the land : the improvements having arisen from ditching the land, making walls, and erecting and improving buildings. The jury returned a verdict conformably to the directions of the judge; assessed the demandants' damages at 49 dollars 50 cents; and certified that the improvements made upon the demanded premises, since the conveyance thereof by Joseph Catlin, were at the rate of fifty per cent. 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 wnole that is necessary. Though a deed be acknowledged and recorded, yet on the issue of non est factum the execution of the deed is still to be proved, as if it had not been acknowledged. Neither was an acknowl- edgment 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 intention 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 con- veyed which must have been, to give it that operation. It was merely 624 DERIVATIVE TITLES (Part 2 the deed of the husband, and the wife is not by it barred of her right to dower.^® As to the question referred to us, respecting the increased value of the lands, in which the demandant claims her dower, as they have arisen from the labours and expense of the purchaser, it is our opin- ion that she is entitled to her third part of the land, in the condition it was in at the time of the alienation by her husband. Had the heir of the husband been the tenant, and the improvements been made by him after the land descended, it would have been otherwise ; for it was his folly not to assign the dower to the widow, before he made the improvements.^** Judgment on the verdict. ROBINSON V. BATES. (Supreme Judicial Court of Massachusetts, 1841. 3 Mete. 40.) Writ of Dower, wherein .the demandant claimed her dower in land in Webster, in the seizin and possession of the tenant, and counted upon the seizin of her late husband, William Robinson. The action was tried, on the general issue, before Wilde, J., who reported the case as follows : The demandant proved her marriage with said William in 1792, his seizin of the demanded premises from the time of said marriage until 1816; the death of said William in 1837; and a demand of dower, made upon the tenant on the 11th of March, 1840. The tenant then introduced a judgment recovered in this court, at 29 Cox V. Wells. 7 Blackf. (Ind.) 410, 43 Am. Dec. 9S (1845); Lothrop v. Foster, 51 Me. 307 (1SG3) ; McFarland v. Febiger, 7 Ohio, 194, pt. 1, 28 Am. Dec. 632 (1835), ace. Johnson v. Montgomery, 51 111. 185 (1S69), semble contra. «ee Leanied v. Cutler, 18 Picli. (Mass.) 9 (18.36). As to the ability of the husband and wife to make an effective conveyance of the wife's inchoate dower alone, see Davenport v. Gwilliams, 133 Ind. 142, 31 N. E. 790, 22 L. R. A. 244 (1892). See, also, Hart v. Burch. 130 111. 426, 22 N. E. 831, 6 L. R. A. 371 (1889) ; INIason v. Mason, 140 IMass. 63, 3 N. E. 19 (1885). 30 "Nor is the widow's right in lands which have been alienated by the hus- band alone limited to the value of such lands at the date of such conveyance. It is to be admitted that authority may be found for such rule, but the over- AVhelming weight is to the contrary. It is, of course, equitable in such cases that the widow shall not be permitted to profit by an increase in value due to improvements and betterments made or created by the labor and money of the grantee, who has expended them in good faith, believing he had a perfect title ; but in all increase arising from the general growth, prosperity, and develop- ment of the country, or from any other source than the labor and expense of the grantee, she is entitled to share." Butler v. Butler, 151 Iowa, 583, 58S, 132 iST. W. 63 (1011), per Weaver, J. It was accordingly held in that case that the court had no jurisdiction to hx a value upon the inchoate dower of a wiie who had not joined in a deed of her husband and decree that upon a deposit of such sum by the grantee, to abide the determination of survivorship, the land should be held free of such dower. Occasionally the rule is laid down as above quoted, but omitting any refer- iince to the good faith of the grantee. In re Tomlinson, 9 Del. Ch. 446, 81 Atl. 468, 585 (1911). See Park on Dower, *256 et seq. Ch. 5) ESTATES CREATED 625' September term, 1828, by one Morris Larned against said William Robinson, and a levy, in due form, in October, 1828, of the execution which issued on said judgment, upon the demanded premises : Also a judgment, at the October term, 1830, of this court, in a writ of entry brought by said Larned to recover the demanded premises of William Robinson, Junior, and Sylvanus Robinson, then tenants in possession thereof, and the writ of habere facias, issued on said judgment, with the return of an officer thereon, stating the delivery of seizin to said Larned in November 1831 : Also a deed of said prem- ises, afterwards made to the tenant by said Morris Larned, dated No- vember 30th, 1831, and duly acknowledged and recorded. The tenant then offered to prove, that in December, 1816, said William Robinson, by his deed, duly executed and recorded, for the consideration of $4,000, conveyed the premises in question to one John Jacobs, Junior, and that the demandant joined him in said deed, and released her dower in said premises. The demandant's counsel objected to the admission of this evidence, because the tenant did not claim under this conveyance. But the evidence was admitted, upon the ten- ant's counsel intimating that they expected to prove this conveyance fraudulent and void as to creditors, and that, if so, it would, by St. 1805, c. 90, § 5, bar the demandant of her dower. The tenant also proved a conveyance of the demanded premises by said Jacobs to the aforesaid William Robinson, Junior, and Sylvanus Robinson, by deed duly executed, and recorded in February, 1822, The tenant then offered to introduce the abovementioned judgment of Morris Larned against William Robinson, to prove that the afore- said conveyance from said Robinson to Jacobs, in December, 1816, in which the demandant joined and released her dower, was fraud- ulent and void as to creditors, and that therefore the demandant was barred of her dower, by force of the statute aforesaid. The de- mandant objected to the admission of that judgment for this purpose, because it was between different parties, and not binding on her; and because it had no tendency, in itself to prove fraud in said deed to Jacobs ; there being no proof on what ground the verdict and judg- ment in that case was rendered. The judge ruled that said judgment could not be admitted for the purpose for which it was offered. To this ruling the tenant excepted. A verdict was taken for the demandant, which was to be set aside and a new trial granted, if the court, should be of opin- ion that the record of said judgment was admissible for said pur- pose. Wilde, J. The demandant having made out a prima facie case, en- titling her to dower, the general question is, whether the defence set up by the tenant is sufficient in law to bar her claim. He relies on a deed of the premises in question from William Robinson, the demandant's late husband, to one John Jacobs, Junior, in which Aig.Pbop. — 40 626 DERIVATIVE TITLES (Part 2 deed the demandant joined, and thereby released to the said Jacobs her right of dower in the premises. It is admitted, that the tenant has no title under Jacobs ; but his counsel contends that he has, by the common law, a right to plead in bar, and under St. 1836, c. 272>, abolishing special pleadings, to give in evidence under the general issue, a conveyance by the demand- ant to a third person under whom he does not claim ; and he relies on the case of Wolcott v. Knight, 6 Mass. 418, and sundry other cases, in which this principle is laid down. "For," it is said, "although the tenant may have no title, still if the demandant has no right to re- cover, he cannot be permitted to draw into question the seizin of the tenant, whether he acquired it by right or by wrong." Stearns on Real Actions, 226. It has been argued by the counsel for the tenant, that this principle is applicable to a case of dower, where the demandant had relin- quished her inchoate right of dower by joining her husband in a con- veyance to a stranger. But the contrary doctrine is laid down in Pix- ley V. Bennett, 11 Mass. 298. And that case, we think, was rightly decided. The tenant's counsel contended, that as the demandant had once re- leased her claim, she was for ever estopped to demand dower, who- ever may be in possession of the land. But it is very clear that a stran- ger cannot be bound by, nor take advantage of, an estoppel. An estop- pel, to be binding, must be reciprocal, and parties and privies only are bound thereby. Whether the demandant's deed may by law operate as a release, or in any way, except by way of estoppel, is a question which it is not necessary to decide ; because, if it may operate so as to pass the right to the grantee, this action may well be maintained for his benefit, or for the benefit of his assigns ; as they cannot maintain an action in their own names, to enforce their right against the tenant. But there is another answer to this objection to the demandant's title, which is entirely satisfactory and conclusive. The tenant, at the trial, ofifered to prove that the conveyance to Jacobs, was fraudulent and void as to the creditors of the grantor, and that, on that ground, he had recovered judgment for the possession of the premises against the assignees of the said Jacobs. Now we are of opinion that the tenant, having avoided the deed to Jacobs, cannot now be allowed to set it up as a bar to the demandant's claim. In Stinson v. Sumner, 9 Mass. 143, 6 Am. Dec. 49, it was decided that where a wife releases her claim of dower, by joining her husband in a conveyance, and the purchaser recovers back the purchase money on account of the grantor's defect of title to the land, the release of the wife thereby becomes inoperative, and does not bar her right of dower after her husband's decease. The principle, on w^hich that decision is founded, applies conclusively to the present case. The tenant has avoided the deed of the husband, and defeated the estate on which the demand- Ch, 5) ESTATES CREATED 627 ant's release of dower was intended to operate. By law, therefore, and in justice, she was thereby restored to her former rights. The other ground of defence depends on the construction to be given to St. 1805, c. 90, sec. 5, which provides "that all the lands, tene- ments, and hereditaments of which the intestate died seized, and also all such estate which he had fraudulently conveyed, with intent to defraud his creditors, shall be liable for the payment of his debts, and may be recovered and applied thereto, saving to the widow her dower therein ; except in the estate so fraudulently con- veyed, to which she had legally relinquished her right of dower." The execution, under which the tenant claims title, was extended on the premises in the lifetime of the demandant's husband, and is not therefore within the letter or the meaning of the statute, which is expressly limited to the lands, tenements, and hereditaments of an intestate, and to the proceedings after his death. If the demand- ant's dower is subject to forfeiture, it must be applied to the equal benefit of all the creditors, and the tenant has gained no priority or title under the execution, in respect to the claim of the demandant. Wildridge v. Patterson, 15 Mass. 148. Where a statute in clear terms is limited to a certain class of cases, the limitation is not to be extended by construction, especially if it would thereby subject an estate to forfeiture. Judgment on the verdict."^ 31 See Huntzirker v. Crocker, 185 Wis. 38, 11,5 N. W. .340, 15 Ann. Cna 444 (1908) ; In re Lingafelter, ISl Fed. 24, 104 C. C. A. 38, 32 L. K. A. (N. S.) 103 (1!)10), where the conveyance was set aside in bankruptcy proceedings because preferential. But compare iMiller v. Wilson, 15 Ohio, IDS (184fi). Statutory Provisions as to Dower.— In practically all of the states there are statutes relative to dower. These statutes vary in their terms and scojie, and should be consulted by the student. In many states the statutes provide for a dower almost, if not wholly, identical with the common-law dower. In al- most an equal number of states it is declared by statute that dower is abolish- ed, and provision is* made, usually in the chapter on TJescenls, whereby, upon the death of the husband, the widow shall take a specified interest in his real- ty. I'nder these latter statutes a nice question may arise as to the nature of the widow's title; that is, whether the common-law principles relative to dow- er have any applicability, or whetlier it is to be treated pm-ely as a case of in- heritance. In Fletcher v. Holmes, 32 Ind. 497, 510 (1870), the court said : "It seems clear, therefore, that the right of the widow, under the statute, to a third of the lands of her deceased husband, is not as dowress, but it rests in lier, at his death, as an heir, by descent. The estate thus given is much larger than that of dower. It is a fee simple, and not merely an estate for life. It differs in many other respects from dower; it entitles the wife, without as- signment, to immediate possession, as a tenant in common with the other heirs, and she may convey it at pleasure. On the other hand, it has some of the in- cidents of dower. The widow is made a favored heir, and the interest which descends to her is exempt from liability for the payment of the debts of the estate. And so, by section twenty-seven, she is not only entitled to a thirpl of all the lands of which her husband may die seized in fee simple, and of all in •which he has an equitable interest at the time of his death ; but also of all of which he may have been seized in fee sin)ple at any time during the coverture, in the conveyance of which she did not join in due form of law," etc. How about such interest being subieet to the inheritance tax? See In ro Estate of Strahan, 93 Neb. 828, 142 N. W. 678 (1913). 628 DERIVATIVE TITLES (Part 2 SECTION 4.— ESTATES FOR YEARS LITTLETON'S TENURES. Tenant for term of years is where a man letteth (lou home lessa) lands or tenements to another for term of certain years, after the number of years that is accorded between the lesser and the lessee. And when the lessee entreth by force of the lease, then is he tenant for term of years. Section 58. COKE UPON LITTLETON. 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 seneschalsise, &c. quamdiu nobic 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 determina- tus. And Littleton, is here to be understood, first, that the years must be certain when the lease is to take effect in interest or posses- sion. For before it takes effect in possession or interest, it may depend upon an incertainty, viz. upon a possible contingent before it begin in possession or interest, or upon a limitation or condition subse- quent. 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 certum est quod certum reddi potest. For example of the first. If A, seised of lands in fee grant to B. that when B, pays to A. 20 shillings, that from thenceforth he shall have and occupy the land for 21 years, and after B. pays the 20 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 good lease by A. to B. 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 parson there, this cannot be made certain by any means, for nothing is more uncer- tain than the time of death. Terminus vitse 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 Ch. 5) ESTATES CREATED 629 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. N. shall name, this at the beginning is uncertain; but when I. N. hath named 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 incertainty, for the life of I. S. is incertain. See many excellent cases concerning this matter put in the said case of the Bishop of Bath and 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 men disherited, but that an- cient law is antiquated. "And when the lessee entreth by force of the lease, then is he ten- ant for term of years." And true it is, that to many purposes he is not tenant for years until he enter ; as a release made to him is not good to him to increase his estate, before • entry ; but he may release the rent reserved before entry, in respect of the privity. Neither can the lessor grant away the reversion by the name of the reversion, before entry. But the lessee before entry hath an interest, interesse termini, grantable to another. And albeit the lessor die before the les- see enters, yet the lessee may enter into the lands, as our author him- self holdeth in this Chapter. And so if the lessee dieth before he entered, yet his executors or administrators may enter, because he pres- ently by the lease hath an interest in him; and if it be made to two, and one die before entry, his interest shall survive. Co. Litt. 45b, 46a, b. LITTLETON'S TENURES. And it is to be understood, that in a lease for years, by deed or without deed, there needs no livery of seisin to be made to the lessee, but he may enter when he will by force of the same lease. Section 59. HARE et al. v. CELEY. (Court of Common Pleas, 15S8. Cro. Eliz. 143.) Trespass for breaking their close called Church-field, and metes and bounds it. The jury find a special verdict, that the place where was sixteen acres lying in a field called Church-field, and meted it by other metes and bounds that were mentioned in the new assign- ment, of which Hare was seised in fee, and eas exposuit to the other three to sow at halves, scil. that he should find one half of the seed, and the other three the other half, and should manure the land; and 630 DERIVATIVE TITLES (Part 2 that Hare should have one moiety of the grain there growing when it was reaped, and the others the other moiety; and after the land was sown, A. entered by the command of the defendant, and spoiled a great part of the corn. Upon which entry and spoiling, the action was brought. — First matter, If Church-field being found to be a great field, in which divers men had interest, if the sixteen acres in it may be called Church-field? And as to this the Court spake little. — Sec- ond matter. If this exposing the land to half be not a lease of the land, so as the action was to be brought in the name of Hare and the three? — Third, admitting it was a lease, if Hare be not tenant in com- mon with them of the corn ; for the moiety of that which was sown, was his? The Couet held it no lease of the land, but otherwise if it be for two or three crops : and therefore, as to the breaking of the close. Hare only was to bring the action ; and as to the spoiling the corn, they ought to join being tenants in common. But in that they joined in the action for breaking the close, whereas he ought to have brought it alone, it was adjudged the writ should abate. CASWELL V. DISTRICH. (Supreme Court of New York, 1S36. 15 Wend, 379.) Error from the Monroe common pleas. The plaintiff as executrix of D. Caswell, brought an action of assumpsit against Districh for the rent of certain premises. The defendant pleaded the general issue. On the trial, the plaintiff produced a written agreement between her tes- tator and the defendant to the effect; that the testator had agreed to let the defendant have his farm for one year, and that Districh had agreed to sow oats and give the testator one third in the half bush- el; corn, one third in the basket; to sow three lots (particularly de- scribed) into wheat, and give the testator one third in the half bushel — the meadow, three cocks out of five, and the rest half delivered in the barn. The plaintiff proved the quantities of grain raised by the defendant, and rested. The defendant insisted that the instrument produced was an agreement to work the land on shares, and not a lease securing rent ; that the parties therefore were tenants in common in the crops, and an action for the rent of the premises would not lie. Whereupon he moved for a nonsuit, which was granted by the court. The plaintiff sued out a writ of error. Nelson, J. The agreement between the parties was a letting of the premises upon shares, and, technically speaking, was not a lease. Bradish v. Schenck, 8 Johns. 151; Foote v. Colvin, 3 Johns. 216, 3 Am. Dec. 478; Whipple v. Foot, 2 Johns. 421, 3 Am. Dec. 442; De Mott V. Hagerman, 8 Cow. 220, 18 Am. Dec. 443. There is nothing which indicates that the stipulation for a portion of the crops was Ch. 5) ESTATES CREATED 631 by way of rent; but the contrary. The shares were of the specific crops raised upon the farm. It is very material to the landlord, and no injury to the tenant, that this view of the contract should be main- tained, unless otherwise clearly expressed, for then the landlord has an interest to the extent of his share in the crops. If it is deemed rent, the whole interest belongs to the tenant until a division. Where a farm is let for a year upon shares, the landlord looks to his interest in the crops as his security, and thereby is enabled to accommodate tenants, who otherwise would not be trusted for the rent. This case is clearly distinguishable frbm that of Stewart v. Dougher- ty, 9 Johns. 108. There the court, from the correspondence between the phraseology of the instrument and the terms usual in leases in the reservation of rent, came to the conclusion that the, proportion of the crops specified in the agreement was intended as payment of rent in kind, and that therefore the whole interest belonged to the tenant. If my conclusion be correct, then the parties were tenants in com- mon in the crops, and as the plaintiff stood in the place of her testator, she was not entitled to sustain her action, and the common pleas did right to grant a nonsuit. Judgment affirmed.^^ STEEL V. FRICK. (Supreme Court of Pennsylvania, 1867. 56 Pa. 172.) Error to the Court of Common Pleas of Westmoreland county ; No. 90, to October term, 1866. This was an action of covenant, commenced April 6th, 1863, by Da- vid Z. Frick against James Steel, and was founded on an article of agreement dated January 8th, 1862, by which "Steel agrees to let the said Frick farm his part of the Warden farm, now in the occu- pancy of James D. Porter, for the term of one year, commencing on the 1st day of April next — the said Frick to put one field in corn, and work it sufficiently well, and to put the cornstalk field out in oats in the spring in good time and order, and to sow so much of the land in wheat and rye in the fall as the said Steel may wish, or as is fit to be sowed, and to haul out all the manure and put it on the ground before sowing, and to keep up the fences in good repair, and to sow so much of the land with timothy and cloverseed as it not intended to be 32 See Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309 (1841). In Taylor v. Donahoe, 125 Wis. 513, 103 N. W. 1009 (1905), the arrangement entered into was held to have created a relatiou.'ship of master and servant and that, therefore, the ownership of the crops was wliolly in the landowner, the cropper acquiring an interest therein only after division by the landowner. So, also, in Ivelly v. Rnmnierheld, 117 Wis. 620, 94 N. W. 619, 98 Am. St. Kep. 951 (1903), where the lando\\aier sued the cropper in replevin to recover the half of the crop by him harvested and appropriated ; and in Farrow v. Wooley, 138 Ala. 207. 36 South. 384 (1902). 632 DERIVATIVE TITLES (Part 2 ploughed immediately again, and to deliver the said Steel the one-half of all the oats, corn, wheat and rye at market, when wanted or ready for delivery. All to be done in a sufficient manner as farming should be done, and to pay all the taxes assessed or to be assessed for the year 1862 — the said Frick is to have all the hay he makes, and all the pasture during said year on said land." The "Warden farm" contained in the whole about 159 acres, and belonged to Steel and one David Williams. In an action of partition by Williams against Steel, to February Term, 1862, judgment quod partitio fiat was rendered May 12th, 1862, and a writ de part. fac. issued to August Term 1862. The evidence was, that Frick went to the house on the premises on the 1st of April, 1862, with all his goods. Porter had the house locked and would not let Frick in ; he had to haul his goods away and put them into a barn about two miles off, and his family into an almost untenantable house at another place. There was evidence that Frick was not prevented from farming the land, but made no attempt to do so; also, that upon Frick's informing Steel that he could not get possession. Steel said he would give him a house and land off his own farm, more than he was to get there ; that Steel thought the offer was a good one, but that he did not wish to leave the neighborhood. The court (Buffington, P. J.) charged : "Steel and Williams were the owners of this land as tenants in common. Steel leased his part to the plaintiff, Frick, from 1st April, 1862 to 1st April, 1863. This is not a contract to lease to him the whole of the land, but only his part. The name of Porter is intro- duced, not to define the amount of interest leased, but the description of the tract, his interest in which was leased. Steel had no right to the entire possession, but Williams had as good a right to his part of the tract. [Steel, however, did agree to lease to him his part of the land. That was a covenant to enable him to get and hold the pos- session, and enjoy the undivided half or all the interest Steel had, including not only the farm land, but the barn, house and other build- ings necessary to the enjoyment of the farm.] If he made a contract which he could not comply with, it was his fault, or his misfortune; and if the contract was a fair one, Frick had a right to the posses- sion, and was prevented from enjoying the premises according to the spirit of the agreement, and he could not enjoy it, either by the act of Steel, or his want of right or power to give possession, then the ten- ant would be entitled to recover whatever damages he sustained. "[If the jury believe Frick was thus deprived of the possession, either by the act or want of power in Steel to give possession, Frick is entitled to recover.] It is no excuse that he could not give a pos- session." There was a verdict for the defendant for $315.91 damages. The defendant took a writ of error, and assigned for error the parts of the charge included in brackets. Ch. 5) ESTATES CREATED 633 Thompson, J. If the agreement between the plaintiff and defend- ant in this case, is to be regarded as a lease of the premises, it would pass the possession of the buildings on it to the lessee. It would necessarily be a covenant for quiet enjoyment. The instrument is very inartificial, but we think it contains all the elements of a lease. It sets out by a stipulation, that "Steel agrees to let Frick farm his part of the Warden farm, now in the possession of James D. Porter." This is a letting to farm by equivalent "words to these, "To farm let," which are operative terms in leases. The premises mentioned were well understood, at least no dispute exists on the ground of description. After this preliminary stipulation, then follows "for the term of one year." It may as well be said here, that this and what follows is nothing like a contract for cropping. After stipulating about the mode in which the farming was to be done, and that the lessee should haul out all the manure to the fields, and keep the fences in good repair, then follows the reservation of rent, which was to be "the one-half of all the oats, corn, wheat and rye, to be delivered to Steel at market when wanted, or ready for delivery, and the payment of all the taxes for the year 1862, Frick to have all the hay and the pasture of the land during the year." A cropper is one hired to work land and to be compensated by a share of the produce. Such a contract gives him no legal possession of the premises, further than as a hireHng. The legal possession re- mains in the hirer or landlord, and hence the remedy by distress is not applicable to him: Fry v. Jones, 2 Rawle, 11; Adams v. McKes- son, 53 Pa. 81, 91 Am. Dec. 183. That the above contract is not a hiring to work land merely, is evident. The lessee was to farm the lessor's share or portion of the Warden farm for the term of one 3'^ear — to do it in a sufficient manner as farming should be done, and to pay all taxes. This left the mode of farming to the lessee, as it is not stipulated to be done in a particular way, and necessarily gave him the possession and control to do the farming in his own way, un- like the relation of a mere hireling — still more unlike cropping, as the stipulation that the lessee was to pay the taxes. One hired to crop would hardly be expected to pay taxes. But it is further apparent in this, that Frick was to have the possession of the premises for the specified term, on the stipulation that he was bound to haul out the manure, and keep the fences in repair. These stipulations clearly look to a possession of the premises by the lessee; so, too, is the stipula- tion for all the pasturage during the year. If then the contract means, as we think it does, that the possession was to be in Frick, this evinces the intention to create a tenancy. That the rent was reserved, payable in kind by a share of the grain, does not militate against the idea of a lease. In Fry v. Jones, on the demise of a grist-mill, the lessee to render one-third of the toll as rent, it was held by this court that the lessor might distrain for rent. The principle to be applied in that case was illustrated by the learned judge, 634 DERIVATIVE TITLES (Part 2 by the case of farm-letting. "We have almost always," says Rogers, J., "adopted the mode of renting for a share of the produce of the farm, which is preferred by tenant and landlord;" and he follows this remark by concluding that a distress was the remedy in such a letting. An implication of a doubt in Warren v. Forney, 13 Serg. & R. 52, whether the right of distress is incident to a lease, may possibly arise from the remark of Tilghman, C. J., in refusing to express any opinion on the point, although he said he did not consider it legitimately be- longing to it; but Fry v. Jones was decided five years subsequently, and both by illustration and the announcement of the very principle settled the doctrine that it is. So in Jones v. Gundrim, 3 Watts & S. .531, rent payable in hire was held to be liable to distress, and the case of Jones V. Fry was relied on as authority for it. The same doctrine is very distinctly announced in Rinehart v. Olwine, 5 Watts & S. 157. We consider the doctrine settled, and that in this case there was a let- ting for a term, with a reservation of rent sufficiently certain to per- mit of a distress. This being so, the agreement for tenure was broken on the failure of the plaintiff to get possession, being kept out by a person in possession under the defendant. The declarations of the defendant, and his offer to give the plaintiff' a house and land in an- other place, was some evidence of the understanding as to the pos- session. Upon the whole, we see no error on the part of the court in constru- ing the instrument in question a lease, and in charging as it did on the subject-matter complained of. Judgment affirmed.^* SECTION 5.— ESTATES AT WILL AND FROM YEAR TO YEAR LITTLETON'S TENURES. Tenant at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him. Section 68. 33 In Warner v. Abbey, 112 Mass. 355 (1873), the arrangement for cropping was held to amount to a lease. A. leased premises to B. for three years, with the privilege of five, upon shares, B. to to all the work, find all the seed, and to deliver to A. one-third the crops. The farm was to be cropped in a way specified, and B. was to have the use of certain farm implements of A., and was to take good care of same. Could B. assign his interest to X? Randall v. Chubb, 46 Mich. 311, 9 N. W. 4119, 41 Am. Rep. 1C5 (1881) ; Meyer v. Livesley, 45 Or. 487, 78 Pac. 670, 106 Am. St. Rep. 667 (1904). Ch. 5) ESTATES CREATED 635 COKE UPON LITTLETON. "Tenant at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, &c." 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 les- see 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 will 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. "The lessor may put him out." There is an express ouster, and im- plied ouster; an express, as when the lessor commeth 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 ex- cepted, 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 common is appendant, if the lessor put in his beasts to use the common, this is a determination 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 deter- mined until the lessee hath notice. No more than the discharge of a factor, attorney, or such like, in tlieir absence, is sufficient in law un- til they have notice tliereof. Co. Litt. 55a, b. LITTLETON'S TENURES. Also, if a man make a deed of feoffment to another of certain lands, and deHvereth 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 plea»- eth him. Section 70. 636 DERIVATIVE TITLES (Part 2) COKE UPON LITTLETON. There is a great diversity between a tenant at will and a tenant at sufferance ; for tenant at will is always by right, and tenant at suffer- ance entreth by a lawful lease, and holdeth over by wrong. A tenant at sufferance is he that at the first came in by lawful demise, and after his estate ended continueth in possession and wrongfully holdeth over. As tenant pur terme d'auter vie continueth in possession after the de- cease of Ce' que vie, or tenant for years holdeth over his term; the lessor cannot have an action of trespass before entry, Co. Litt. 57b. LEIGHTON V. THEED. (Court of King's Bench, 1701. 2 Salk. 413.) If H. holds land at will, rendering rent quarterly, the lessor may de- termine his will when he pleases ; but if he determines it within a quarter, he shall lose the rent which should have been paid for that quarter in which he determines it. So the lessee may determine it when he pleases, but tlien he must pay the quarter's rent. Per How, C. J. TURNER v. MEYAIOTT. (Exchequer Chamber, 1823. 1 Bing. 158.) Trespass for breaking and entering plaintiflf's house. At the trial before the Lord Chief Baron, Guilford Summer assizes, 1822, it ap- peared that the plaintiff had been tenant of the house to the defend- ant, from week to week ; that he had received a regular notice to quit, but omitted to deliver up possession, whereupon, the defendant, at a time when nobody was in the house broke open the door with a crow- bar, and other forcible applications, and resumed possession. Some little furniture was still in the house. The Chief Baron having said that the law would not allow the defendant thus forcibly to reinstate himself, the jury found a verdict for the plaintiff, whereupon, Taddy, Serjt., obtained a rule nisi for a new trial, and Pell, Serjt, now showed cause against the rule. The question is, whether when a tenant refuses to deliver possession after a regular notice to quit, the landlord may make a forcible re-entry: but it can- not be permitted he should take the law into his own hands, and do- that by violence which is usually accomplished by an action of eject- ment. It is contrary to the first principles of law, that he should be- come judge in his own cause, and substitute his own strength for the ordinary civil process. If there had been resistance, and death had Ch. 5) ESTATES CREATED Q^t ensued, the crime of murder would have been committed; and it makes no difference that nobody was in the house, for the defendant could not ascertain that till he entered, and the plaintiff" might have come up while the violence was in progress. Some furniture being in the house, this was not a case of vacant possession. The statute of 11 G. II, which gives the landlord double value where the tenant holds over, shows what is the appropriate remedy in such cases ; but that statute would be useless, if the landlord might thus take the law into his own hands. It might be urged, that if the landlord had pro- ceeded irregularly he would be liable in an indictment for a forcible entry, but his subsequent liability would not justify the previous wrong. In Taunton v. Costar, 7 T. R. 431, the entry made by the landlord's putting his cattle on the ground was entirely peaceable, and to that there could be no objection; so that Lord Kenyon's observa- tion, "that if he dispossessed the tenant with a strong hand, he would be liable for a forcible entry, but there could be no doubt of his right to enter on the land at the expiration of the term," was uncalled for by the case before him, and leads to the absurdity, that, in certain cases, a landlord may enter, and yet he shall be punished for the entry. Pell also referred to Davies v. Connop, 1 Price, 53. Dallas, C. J. The high respect which I entertain for my lord chief baron, has alone made me hesitate a single moment, and even now, perhaps, as the cause is to go down to be tried again, I ought not to express an opinion. The question is, whether a landlord has a right to enter in the manner the defendant did under the circumstances of this case, in which the tenant held over after his right to posses- sion had ceased, and the landlord's right to enter had accrued. It must be admitted he had a right to take possession in some way ; the case of Taunton v. Costar is in point, to show that he might enter peaceably and that no ejectment was necessary. If he had used force, that is an offence of itself ; but an offence against the pub- lic for which, if he has done wrong, he may be indicted. Park, J. I am of the same opinion. The declaration states that the defendant broke and entered the house of the plaintiff, but the fact was not so ; the plaintiff had gone out, and the house was not his, but his landlord's, who had a right to break his own door; as no person was within, there could be no danger to any man's life. Lord Kenyon says, in Taunton v. Costar, "it is clear the landlord could have justified in a plea of liberum tenementum. There can be no doubt of his right to enter upon the land at the expiration of the term;" and that decision, in my judgment, goes the whole length of the present. BuRROUGH, J. I was once concerned at the cock-pit in a case similar to the present, where I used the same arguments as have now been urged by my brother Pell, but Lord Kenyon and Lord Alvanley who- were there, entertained no doubt, and said the landlord might enter. The rule for a new trial in this case must be made absolute. 638 DERIVATIVE TITLES (Part 2 HILLARY V. GAY. (Court of Exchequer, 1S33. 6 Car. & P. 2S4.) Trespass for breaking and entering a room of the plaintiff, being parcel of a dwelling-house. There were also counts for expulsion, and for taking the plaintiff's goods. Plea — General issue. It appeared that the house at which the trespass occurred belonged to the defendant, who had let it to a person named Jury, who had under-let a part of it to the plaintiff. It further appeared that Jury was under notice to quit at Midsummer, 1833, but that the plain- tiff did not quit at that time, the defendant having distrained his goods in the month of August, 1833, for the rent due up to Midsummer: it was also proved that the plaintiff had said that he would not leave till he could suit himself, which would be within a fortnight; how- ever, it appeared that after that fortnight the plaintiff did not leave; and the defendant procured a number of Irishmen' to go to the house, and after getting the plaintiff to go away, by sending a boy to tell him that his master wanted him, the Irishmen entered the plaintiff's room, and turned his wife out into the street, and put the plaintiff's furniture out at the window. Thesiger, for the defendant. — I submit that this was no trespass in the defendant; he was the landlord, and the tenancy had expired, and he had therefore a right to resume the possession. In the case of Turner v. Meymott, 7 Moo. 574, it was held that where a tenancy had determined, the landlord was not a trespasser if he broke into the house. Lord Lyndhurst, C. B. There the tenant had gone away and had not left his family in possession. The tenant was in that case out of possession,' and no one was in possession. Where that is so, the land- lord may enter if the term is at an end. Thesiger.— In the case of Taylor v. Cole, 2 T. R. 292, it was held that the breaking was the gist of the action, and that the expulsion was merely aggravation. Lord Lyndhurst, C. B. How do you say the tenancy was put an end to? Thesiger. — The tenancy terminated on ]\Tidsummer-day. Lord Lyndhurst, C. B. You distrain after that. Ball. — There was also a disclaimer by the plaintiff. A witness for the defendant stated, that he called on the plaintiff in July or August, 1833, and told him that it was an injury to his landlord that he should stay in the house contrary to his agreement; and that the defendant replied, that he would not go, as it was a com- fortable thing to pay no rent, and that he would not leave for Mr. Gay, or Mr. Jury either. Lord Lyndhurst, C. B. (in summing up.) Even if the plaintiff had promised to leave at a particular day, the conduct of the defend- Ch. 5'' ESTATES CREATED 639 ant is unjustifiable. There is no proof of any distinct promise of the plaintiff to go away at any particular time; but even if he had so promised, I am of opinion that the conduct of the defendant cannot be justified. If the defendant had a right to the possession, he should have obtained that possession by legal means. Verdict for the plaintiff — Damages £50.^* POLLEN AND WIFE v. BREWER. (Court of Common Pleas, 1859. 7 C. B. [N. S.] 371.) The first count of the declaration charged an assault on the female plaintiff, the second (which was abandoned at the trial) the like with an allegation of loss of service, &c., the third an assault upon the male plaintiff, the fourth breaking and entering the plaintiff's dwelling-house and forcibly expelling him and his wife and family, and the fifth was trover. The defendant pleaded not guilty. 34 In New-ton v. Harlanrl, 1 M. & G. 644 flSJO), the plninfifP. who hfid hoen forcibly ejected by the defendant from premises to the possession of which the defendant was then entitled, sued for assault and battery. Tindal. C. J., said : "Tliis case involves a qnestion of great importance and one of very gen- eral application, namely, whether, after a tenancy has been determined by a notice to niiit, the landlord may enter on the r)remises wliilst the tenant still remains in possession, and after requesting him to depart and give up the possession, and his refusing so to do. may turn him out of possession by force, u.sing as nmch force and no more than is necessary for that purpo.se. * * * nie point above stated must be nece.ssarily determined before this case is ul- timately decided. It appears, hpwever, to me that such question cannot, upon the present finding of the jury, be properly brought before us. * * * For if the landlord, in making his entry upon the tenant, has been guilty either of a breach of a positive statute, or of an ofCence against the common law. it ap- pears to me that such violation of the law in making the enl rj' causes the po.s- se.ssion thereby obtained to be illegal, and that the allegation in the plea that one of the defendants was lawfully in possession at the time the assault was committed is negatived." Hosanqnet. .7.. said: "Some things are clear. If a tenant hold over the land after the expiration of his term, he cannot treat the lessor, who enters peace- ably, as a trespasser; and the lessor, in such ease, may justify his own entry upon the land by virtue of his title to the possession. * * * On the other hand, the lessor, who is out of posse.ssion. cannot maintain an action of trespass against a tenant holding over. He must first acquire a lawful pos.session be- fore he can maintain such action, l^ut if the lessor enter upon the land to take pos.session, he may treat as trespassers all those who afterwards come upon it (Hey v. Moorhouse. 6 New Cases. 52, 8 Scott, 1.56 [1S."9|), or who, hav- ing unlawfully taken possession, wrongfully continue upon the land, as in the case of Butcher v. Butcher, 7 B. & C. 402 (1S27), whei'e the defendant had come into possession of the land by intrusion, and the rightful owner, having entered, was held entitled to maintain an action of trespass against him. The lessor may even break and enter a house, provided it be enii)ty, which has been occupied and held' over by his tenant, though the tenant may have left some of his property therein. Turner v. Meymott, 1 Hing. 15S (1S2:-;). Hut no case has yet lieen decided in which the lessor has been held to be justified in e.xpelling by force from a dwelling house a person who, having lawfully come into pos- session of it, has merely continued to hold possession after the expiration of his title." '640 DERIVATIVE TITLES (Part 2 The cause was tried before Williams, J., at the sittings at West- minster after last Term. The plaintiff swore, that, in May, 1858, he entered into a negotiation with the defendant for an assignment of a lease of certain premises which the defendant held, that the defend- ant agreed to let him into possession, and gave him the key, and that shortly afterwards the defendant went to the premises with two men, and assaulted the plaintiff and his wife, and turned them and their children and furniture into the street. The defendant denied that he had ever agreed to let the premises to the plaintiff, but stated that he gave him the key for tlie purpose of enabling his agent to inspect the premises. He also denied the alleged assaults, and proved that, the plaintiff having refused to redeliver possession of the premises to him on demand, he entered and expelled him. The jury, however, found that there was a tenancy of some sort, and that the alleged assaults were committed; and they found for the plaintiffs on the first count 20s. damages, on the third count 40s., and on the fourth count £25. The learned judge reserved leave to the de- fendant to move to reduce tlie damages by the last-mentioned sum, if the court should think there was any evidence of a determination of the tenancy. ErlE, C. J. I am of opinion that this rule must be made absolute to reduce the verdict by i25., the amount of damages found upon the fourth count. It is clear that the plaintiff had at the utmost only the interest of a tenant at will. I incline to think that the defendant never intended to create even that limited interest: but the jury have found it. The defendant, having a right to determine the plaintiff's posses- sion at any moment, sent to demand the key, telling the plaintiff at the same time (by letter) that he was in against his will. I am of opinion that either of these was a sufficient intimation to the plaintiff that he was no longer tenant at will, and that his continuance of the possession was without a shadow of right, and therefore that the de- fendant was justified in treating him as a trespasser and removing him from the premises. There was abundant evidence that, at the time of the expulsion, the plaintiff was on the premises without any right. I therefore think the rule must be made absolute. Williams, J. I also think there was sufficient evidence of a deter- mination of the will, and consequently that the plaintiffs are not enti- tled to recover damages for the expulsion. Crowder, J. I am of the same opinion. I do not see what more the defendant could do than he did to determine what the jury have found to be a tenancy at will. It is said that there was no proper de- termination of the tenancy, because the demand of ppssession or the key, was accompanied by an assertion that there never was any ten- ancy at all. I do not, however, see how that can cut down the evi- dence of determination. The defendant demands the key, then a cor- respondence ensues, and then he makes an entry. This was a clear in- Ch. 5) ESTATES CREATED 641 timation to the plaintiff of his election to determine any right he might have. BylEvS, J. I also am clearly of opinion that the rule to reduce the damages should be made absolute. I have nothing to add to what has fallen from the rest of the court. Rule absolute. CURTIS V. GALVIN. (Supreme Judicial Court of Massachusetts, 1861. 1 Allen, 215.) Tort 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 su- perior court Rockwell, J., directed a nonsuit, arid the plaintiff alleged exceptions. The facts appear more fully in the opinion. BiGiiLOW, 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 evi- dence of any right to their occupation created by an instrument in writing, he could have no greater title or interest tlierein than an es- tate at will. Rev. St. c. 59, § 29. On the facts stated in the excep- tions, this is the most favorable view which can be taken of his right to the possession and enjoyment of the premises, prior to the convey- ance to the defendant Carney. But, on a familar 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 purchaser without notice, who could prove that the deed was made with intent to defraud him, might impeach the conveyance, and set it aside on tlie well settled principles of the common law as declared in Sts. 13 Eliz. c. 5, sec. 2, and 27 Eliz. c. 4, sec. 2. But in such case the deed is valid between the parties; and, witli this exception, we know of no Aiq.Pbop. — 41 642 DERIVATIVE TITLES (Part 2 rule of law which restrains the owner in fee from the free and un- fettered 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 sub- ject to all the legal rights of the owner therein, and must be presumed to have known them, and to have assented thereto. To him, there- fore, the maxim volenti non fit injuria is applicable. The determina- tion of an estate at will, by an alienation by the owner of the rever- sion, is one of the 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 ex- ercise 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, ubi 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 clausum 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 possession wrongfully. Co. Litt. 57b, 271a. The defendants had a full right of entry. Meader v. Stone, 7 Mete. 147. Exceptions overruled. SAY V. STODDARD. (Supreme Court of Ohio, 1S75. 27 Ohio St. 47S.) Error to the Superior Court of Montgomery County. The plaintiff in error was plaintiff in the court below, where his amended petition was demurred to, on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sus- tained, and plaintiff not desiring farther to amend, judgment was en- tered for defendant. The action of the court in sustaining the demur- 'rer is here assigned for error. The petition was substantially as fol- lows: That, on August 27th, 1869, James Celey leased a dwelling-house in the city of Dayton, in the county of Montgomery, with the lot whereon said house is situate. Said written lease being as follows, to wit: "Henry Stoddard, Sr., has rented to James Celey his Fowler House, on lot No. 4, on the east side of St. Clair street, between Water and Ch. 5) ESTATES CREATED 648 First streets, in Dayton, at a rent of thirteen dollars a month, for so long as the parties shall mutually agree to continue the renting under this agreement. Said Celey being in the employment and service of Stoddard & Co., in their mill ; they are to pay the rent monthly or half monthly, as may be most convenient, out of Celey's wages. Either party may put an end to this renting by giving the other party four days' notice, in writing, that this renting is to cease at the expiration of four days from the service of such notice on the other party. Said Celey agrees to use arid treat the premises in a proper tenant-like man- ner while he occupies. The rent to commence August 27. 1.869. "[Signed] Henry Stoddard, Sr. "James Celey. "[Stamp.] "Paid up to Oct. 1, 1869." That James Celey, on the 27th day of August, 1869, with Henry Stoddard, Sr.'s, consent, took lawful and peaceable possession of the premises, under said lease, and continued in possession thereof till the '7th day of December, 1869, when he moved out of said premises. That while said Celey was in possession of said premises, and before he moved out, he did, on the 1st day of December, 1869, rent two rooms of said house to the plaintiff, George Say, .for six dollars p^r month — Say paying to Celey, on the day of renting, four dollars rent on the month of December, 1869; that on said 1st day of December, 1869, Say, with his wife, moved into the said two rooms of said house, while Celey, with his family, occupied the other room, with small kitchen, immediately in the rear of and adjoining the two rooms occu pied by Say. Said Celey continuing to occupy the rooms in the rear of Say's, till the 7th day of December, 1869, when he, Celey, moved out of the premises; Celey owing, on back rent, seven dollars for month of November 1869; George Say and his wife continued in possession of his two rooms from December 1st till December 15th, 1869, when, on December 15th, 1869, E. Fowler Stoddard, the defendant, the son of Henry Stoddard, Sr., with screw-driver, hatchet and ax, went, on said 15th day of December, 1869, to the front door of the room fronting on St. Clair street, Say and his wife being in their rooms at the same time ; that E. Fowler Stoddard, with his instruments aforesaid, and without the consent of Say or his wife, and against their remonstrance, pro- ceeded to get possession of said rooms, occupied at the time by Say and his wife, by taking hold of the knob of the front door, leading into tlie front room, which was fastened by a lock. The door being opened by defendant, the plaintiff, Say, warning him not to come in. That the defendant, on said 15th day of December, 1869, and while Say (who was 69 years old in March, 1871) and his wife were in their rooms, did enter their rooms, and did remove, take off, and carry away five doors and five windows — being all the doors and windows belonging to the rooms occupied by the plaintiff, George Say, and his wife ; and also be- ing all the doors and windows of the rooms occupied by Celey 644 DERIVATIVE TITLES (Part 2 and his family, till he moved, December 7, 1869, excepting one door in rear room of house. And in removing one of the doors in the room, immediately in the rear of and adjoining the front room, in order to get at the door to take it off the hinges the defendant did move a cupboard of plaintiff, so he could get at the door with his screw-driver. After the doors and windows were taken away by defendant, the plaintiff' hung up at the door, strips of carpet. The day, on which the doors and windows were taken down and carried away by defendant, was cold and chilly, and remained cold till plaintiff left said premises, which was on the 20th day of December, 1869. Plaintiff being compelled to leave the premises by reason of defendant's acts, as aforesaid. Snow had fallen while plaintiff was in possession of rooms, and during the time the doors and windows were out. No written notice to leave said premises was ever served by anyone — on either Say or Celey. Neither did Celey ever serve a written notice on Stoddard, Sr., or defendant, that he, Celey, would leave the premises. Said Henry Stoddard, Sr., died on November 1, 1869, testate, leaving the said defendant one of his executors and devisee under the will of said decedent. Said plaintiff says that by reason of the acts of the de- fendant herein set forth, said plaintiff has sustained damage five thou- sand dollars, for which he asks judgment. Scott, Chief Judge. The contract of lease between Stoddard, Sr., and Celey, set out in the petition in the court below, created, by its express terms, a tenancy at will. True, the rent was to be $13.00 a month, and was to be paid by Stod- dard & Co. out of Celey's wages, monthly, or half monthly, as might be most convenient. But the renting was to continue for "so long as the parties shall mutually agree to continue the renting under this agree- ment." And, again : "Either party may put an end to said renting by giving the other party four days' notice, in writing, that this renting is to cease at the expiration of four days from the service of such no- tice on the other party." It is clear, from this language, that the tenant was to hold at the will of the lessor, though while the tenancy continued the rent was to be paid monthly or half monthly. ^^ The character of the tenancy is not affected by the fact that four days' notice of its de- termination, is provided for in the contract ; for in a general tenancy at will, reasonable notice must be given by the party whose will determines it, to the other party; and the contract here fixes the length of that notice. It is said by Blackstone : "An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor, and the tenant by force of this lease obtains possession." 2 Bl. Com. 145 ; Litt. § 68. Such tenant has no certain indefeasible es- tate, nothing that can be assigned by him to any other, because the lessor may determine his will, and put him out whenever he pleases. 2 Bl. Com. 145 ; Taylor's Landl. and Ten. 48. 8B Richardson v. Langredge, 4 Taunt. 12S (1811), ace. Ch. 5) ESTATES CREATED 645 Tenancy at will may be determined by implication of law. Such im- plication will arise on the deatli of either of the parties. So, if a tenant at will assigns over his estate to another, who enters on the land he is a disseisor, and the landlord may have an action of trespass against him, Greenl. Cruise on R. Pr. 244; Taylor's Landl. and Ten. 48. So, also, a desertion of the premises by the lessee, puts an end to a tenancy at will. For he thereby discontinues his lawful possession and terminates his relation to his lessor, which is only of a personal character, and he ceases to have any interest in the premises which he can transfer or control. The plaintiff shows, by his petition, that Stoddard, the lessor, died November 1, 1869, leaving the defendant his devisee of the premises. Celey, the lessee, continued in possession till December 1st, when he undertook to sublet a part of the premises to the plaintiff. It is not alleged that the defendant assented to tliis continuance of possession, or subletting. On the 7th of December, the lessee, Celey, removed wholly from the premises ; and, eight days afterward, the grievances occurred of which the plaintiff complains. As against the defendant, the plaintiff acquired no rights by his contract with Celey, for the latter had none which he could transfer. The facts stated do not show that the relation of landlord and tenant was ever created between tlie parties to this suit. There was neither privity of estate, nor of con- tract between tliem. And the acts complained of were but the lawful exercise of the rights incident to the defendant's ownership of the premises, and are not charged to have been attended with any unneces- sary interference either with the plaintiff's person or property. We think the court below properly sustained the demurrer to the plaintiff's petition, and its judgment is affirmed. READER V. PURDY. (Supreme Court of Illinois, 1S66. 41 111. 279.) Appeal from K?ne; Isaac G. Wilson, J. Erastus S. Purdy, in the fall of 1858, built a house on a lot in Au- rora, which he obtained of Otis on a parol contract, went into posses- sion of the same with his family, and occupied the same as a homestead from that time until the spring following the assault and battery for which this suit is brought. In 1861, Reader, whose wife was sister to Purdy's wife, obtained from Otis the legal title of the premises on which Purdy and wife lived, and brought an action of ejectment for the possession of the same. On the first trial of the ejectment suit, the jury rendered a verdict in favor of Purdy, and a new 'trial was granted to Reader ; and between the time of the first trial and that of the second trial of the ejectment suit, to-wit: in October, 1862, Read- er, Baker and Barker, in the absence of Purdy from home, got admis- sion into the house, and then proceeded to put Mrs. Purdy and the G4G DERIVATIVE TITLES (Part 2 furniture out of the house by force. Mrs. Purdy, who is described as a weak hltle woman, wcighinj^ ninety-six pounds, fought for her pos- session willi great energy. She locked one of the doors and gave the key to her daughter, from whom it was taken, then went at the assail- ants with hot water, a stick of wood and a bayonet belonging to her husband, who had been a soldier in the army, and, insomuch that one of the assailants was obliged to hold her by the wrists, to enable the other two to get out the fiirniture. Innally, after all the furniture had been got out of the house, except that in her bed-room, she succeeded in nailing a board across the door and barring the assailants out. By this time the city marshal and others arrived, and the attempt to dis- possess her, which had occupied from nine to twelve o'clock in the morning, was abandoned. The second trial of the ejectment suit oc- curred in May, 1863, and the record therein was introduced in evidence on the trials of these causes, as showing that at the time of the assault the title to the property of which Purdy 's family were in the occupancy was in the defendant Reader. No new trial was ever granted or ap- peal taken in the ejectment suit. The court instructed the jury: 1. That in trespass all are principals, he who stands by advising, etc., as well as he who does the act. 2. That if defendants obtained admission to the premises thereto- fore occupied by plaintiffs, with intent to remove plaintiffs by force, then defendants were trespassers from the beginning. 3. The fact that the defendant Reader was the owner, and entitled to the possession of the premises occupied by the plaintiff, is no justifi- cation for the assault and battery upon the plaintilT's wife, if any such is proven, and no justification of his attempts to take possession of the premises occupied by the plaintifT by force, and no justification for the removal of plaintiff's property therefrom by force, if any such force is proven; j)rovided that the plaintiff and his family were in the quiet possession of the said premises at the time of such assault and force; neither can that fact be regarded by the jury in mitigation of any actual damages caused the plaintiff by such assault and force. The other instructions present nothing essentially dilTerent. The jury found a verdict for the plaintiffs in the suit of Purdy and wife, for $5a), and in the suit of Purdy for $450. Lawrence, J. These two cases, although separately tried, depend upon the same facts and present similar questions, and it will be more convenient to dispose of both in one opinion. In October, 1862, Reader, claiming to be the owner of a house oc- cupied by Purdy and his wife, entered it, accompanied by the other appellants, for the purpose of taking i:)Ossession. Purdy was not at home. Mrs. Purdy refused to leave, whereupon Reader commenced putting the furniture out of doors. She resisted this, and he seized her and held her by the wrists, while Baker, one of the co-defendants, continued to remove the furniture. This was somewhat damaged, and some slight injury was done to the wrists of Mrs. Purdy by tlie force Ch. 5) ESTATKS CREATED 647 applied in liolding^ lior. The appellants finally abandoned their at- tempt to lake possession and withdrew. Two actions of trespass have been brought, one by Turdy alone, and one by Purdy and wife jointly. The declaration in the suit hrouj^ht by Purdy contains three counts, the first being for the assault upon his wife, the second for the injury to the personal property, and the third for breaking his close and carrying o(T his furniture. The declaration in the suit of I'urdy and wife contains two counts, both of which are for the assault upon the wife. There were pleas of not guilty, and an agreement that all defenses might be made under them. A vercHct for the i)laintirf of $450 in one case, and $500 in the other was returned by the jury, and a judgment was rentlered uiK)n it from which the de- fendants appealed. It is insisted by the appellants that Reader, being the owner of the premises, had a right to enter, and to use such force as might be neces- sary to overcome any resistance, and that he cannot be made liable as a trespasser, although it is admitted he might have been compelled to restore to Purdy, through an action of forcible entry and detainer, the possession thus forcibly taken. The court below instructed other- wise, and this ruling of the court is assigned for error. We should not consider the question one of much difficulty, were it not for the contradictory decisions in regard to it, and we must admit that the current of authorities, up to a comparatively recent period, is adverse to what we are convinced must be declared to be the law of this State. P.ut the rule cannot be said to have been firmly or authori- tatively settled even in England, for Hrskine, J., observes in Newton v. Harland, 1 Man. & Gr. 644 (39 E, C, L, 581), that "it was remarkable a question so likely to arise, should never have been directly brought before any court in banc until that case." This was in the year 1840, and all the cases prior to that time, in which it was held that the owner in fee could enter with a strong hand, without rendering himself liable to an action of trespass, seem to have been merely at nisi prius, like the oft-quoted case of Taunton v. Costar, 7 T, R. 431. Still this was the general language of the books. But the point had never received such an adjudication as to pass into established and incontrovertible law, and a contrary rule was held by Lord Ivyndhm-st in Hilary v. Gay, 6 C. & P. 284 (25 E. C, L. 398). But in Newton v. Harland, already referred to, the court of Common Pleas gave the question ma- ture consideration, and finally held, after two arguments, that a land- lord who should enter and expel by force a tenant holding over after expiration of his term, would render himself liable to an action for damages. But the later case of Meriton v. Combs, 67 E. C. L. '788, seems to recognize the ojiposite rule, and we must, therefore, regard a question which one would expect to find among the most firmly settled in the law as still among the controverted points of Westminster Hall. In our own country there is the same conflict of authorities. In New York it has been uniformly held, that, under a plea of liberum 648 DERIVATIVE TITLES (Part 2 tenementum, the landlord, who has only used such force as might be necessary to expel a tenant holding over, would be protected against an action for damages. Hyatt v. Wood, 4 Johns. (N. Y.) 150, 4 Am. Dec. 258, and Ives v. Ives, 13 Johns. (N. Y.) 235. In Jackson v. Far- mer, 9 Wend. (N. Y.) 201, the court, while recognizing the rule as law, characterize it as "harsh, and tending to the public disturbance and indi- vidual conflict." Kent, in his Commentaries, states the principle in the same manner, but in the later editions of the work, reference is made by the learned editor in a note, to the case of Newton v. Harland, above quoted, as laying down "the most sound and salutary doctrine." In Tribble v. Frame, 7 J. J. Marsh, (Ky.) 599, 23 Am. Dec. 439, the court held, that, notwithstanding the Kentucky statute of forcible en- try and detainer, the owner of the fee, having a right of entry, may use such force as may be necessary to overcome resistance, and protect himself against an action of trespass, under a plea of liberum tenemen- tum. On the other hand, the Supreme Court of Massachusetts has held, that, although trespass quare clausum may not lie, yet, in an ac- tion of trespass for assault and battery, the landlord must respond in damages, if he has used force to dispossess a tenant holding over. The court say, "he may make use of force to defend his lawful possession but, being dispossessed, he has no right to recover possession by force, and by a breach of the peace." Sampson v. Henry, 11 Pick. (Mass.) 379. See also Ellis v. Page, 1 Pick. (Mass.) 43 ; Sampson v. Henry, 13 Pick. (Mass.) 36 ; Meader v. Stone, 7 Mete. (Mass.) 147, and Moore V. Boyd, 24 Me. 242. But, by far the most able and exhaustive discus- sion that this question has received, was in the case of Dustin v. Cow- dry, 23 Vt. 635, in which Mr. Justice Redfield, delivering the opinion of the court, shows, by a train of reasoning which compels conviction, that, in cases of this character, the action of trespass will lie. .And he also says : "Whether the action should be trespass quare clausum, or as- sault and battery, is immaterial, as under this declaration, if the de- fendant had pleaded soil and freehold, as some of the cases hold, the plaintiff might have new assigned the trespass to the person of the plaintiff", and a jury, under proper instructions, would have given much the same damages, and upon the same evidence, in whatever form the declaration is drawn." The case of Mussey v. Scott, 32 Vt. 82, cited as inconsistent with this case does not in fact conflict with it. It only holds that trespass quare clausum will not lie in behalf of a tenant for an entry not within the statute of forcible entry and detainer. In this conflict of authorities we must adopt that rule which, in our judgment, rests upon the sounder reason. We cannot hesitate, and were it not for the adverse decision of courts, which all lawyers regard with profound respect, we should not deem the question obscured by a reasonable doubt. The reasoning upon which we rest our conclusion Hes in the briefest compass, and is hardly more than a simple syllogism. The statute of forcible entry and detainer, not in terms, but by neces- sary construction, forbids a forcible entry, even by the owner, upon Ch, 5) ESTATES CREATED* 649 the actual possession of another. Such entry Is, therefore, unlawful. If unlawful, it is a trespass, and an action for the trespass must neces- sarily lie. It is urged that the only remedy is that given by the statute, — an action for the recovery of the possession. But the law could not expel him who has entered if his entry was a lawful entry, and if not lawful all the consequences of an unlawful act must attach to it.^ The law is not so far beneath the dignity of a scientific and harmonious system that its tribunals must hold in one form of action a particular act to be so illegal that immediate restitution must be made at the costs of the transgressor, and in another form of action that the same act was perfectly legal, and only the exercise of an acknowledged right. It is urged that the owner of real estate has a right to enter upon and enjoy his own property. Undoubtedly, if he can do so without a forci- ble disturbance of the possession of another; but the peace and good order of society require that he shall not be permitted to enter against the will of the occupant, and hence the common law right to use all necessary force has been taken away. He may be wrongfully kept out of possession, but he cannot be permitted to take the law into his own hands and redress his own wrongs. The remedy must be sought through those peaceful agencies which a civilized community provides for all its members. A contrary rule befits only that condition of so- ciety in which the principle is recognized that He may take who has the power, And he may keep who can. If the right to use force be once admitted, it must necessarily follow as a logical sequence, that so much may be used as shall be necessary to overcome resistance, even to the taking of human life. The wisdom of confining men to peaceful remedies for the recovery of a lost pos- session is well expressed by Blackstone, book 4, p. 148 : "An eighth offense," he says, "against the public peace, is that of a forcible entry and detainer, which is committed by violently taking or keeping posses- sion of lands and tenements with menaces, force and arms, and without the authority of law. This was formerly allowable to every person disseized or turned out of possession, unless his entry was taken away or barred by his own neglect or other circumstances, which were ex- plained more at length in a former book. But this being found very prejudicial to the public peace, it was thought necessary, by several statutes, to restrain all persons from the use of such violent methods, even of doing themselves justice, and much more if they have no jus- tice in their claim. So that the entry now allowed by law is a peaceable one; that forbidden, is such as is carried on with force, violence and unusual weapons." In this State, it has been constantly held that any entry is forcible, within the meaning of this law, that is made against the will of the occupant. We state, then, after a full examination of this subject, that in our opinion the statutes of forcible entry and detainer should be construed as taking away the previous common law right of forcible entry by 050 DERIVATIVE TITLES (Part 2 the owner, and that such entry must be, therefore, held illegal in all forms of action. There are, however, some minor points upon which both of these judgments must be reversed. In the suit brought by the husband alone, the court refused to instruct the jury that the plaintiff could not re- cover N. Y. 205. The question presented is : When did the rental year arising out of such relation commence and terminate? It is contended by the de- fendant's counsel that inasmuch as the end of the term designated by the terms of the lease was the first of August, 1886, that was the time when the yearly tenancy in contemplation of law terminated, and, therefore, the surrender was properly made on the first of August, 1885. It is urged that this view is in harmony with the recognized principle that, although the lease was invalid the agreement contained in it regulated the terms of the tenancy in all respects, except as to the duration of the term, and Doe v. Bell, 5 D. & E. 471, is cited. There a farm was, in January, 1790, let by a parole lease, void by the statute of frauds, for seven years, the lessee to enter upon the land when the former tenant left, on Lady-day, and into the house on the 25th of May following, and was to quit at Candlemas. He entered accordingly and paid rent. A notice was served upon the tenant Sep- tember 22d, 1792, to quit on Lady-day. In ejectment brought against him it was claimed, on the part of the lessee, that his holding was from Candlemas, and, therefore, the notice was ineffectual to termi- nate the tenancy. Lord Kenyon, in deciding the case, said and held that "it was agreed that the defendant should quit at Candlemas, and Ch. 5) ESTATES CREATED 063 though the agreement is void as to the number of years for which the defendant was to hold, if the lessor choose to determine the ten- ancy before the expiration of the seven years, he can only put an end to it at Candlemas." That case has in several instances been cited by the courts of this state upon the question of the force remaining in the terms of the agreement embraced in a void lease. And in Schuyler V. Leggett, 2 Cow. 663, it was remarked by Chief Justice Savage, in citing it, that such an agreement "must regulate the terms on which the tenancy subsists in other respects; as the rent, the time of year when the tenant must quit, etc." And the citation was repeated to the same effect by the Chief Justice in People v. Rickert, 8 Cow. 230. The question here did not arise in either of those two cases, nor can they be treated as authority that the time for termination of a tenancy from year to year, in any year other than that of the desig- nated expiration of term, is governed by such designation in a void lease for more than one year rather than by the time of entry. The effect sought to be given in the present case to the case of Doe v. Bell is not supported by English authority. In Berrey v. Lindley, 3 M, & G. 496, the tenant entered into possession of premises under an agreement void by the statute of frauds, by the terms of which he was to hold five years and a half from Michaelmas. Several years after his entry, and after expiration of the period mentioned in the agreement, the lessee gave notice to his landlord to terminate the ten- ancy at Michaelmas. It was there contended on the part of the lat- ter, and Doe v. Bell was cited in support of the proposition, that the time designated in the agreement for the termination of the tenancy governed in that respect. But the court decided otherwise, ^nd held that the notice was effectual to terminate the tenancy. The views of the court there were to the effect, that, although the tenancy was from year to year, the tenant might without notice have quit at the expira- tion of the period contemplated in the agreement, but having remained in possession and paid rent subsequently to that time, he must be considered a tenant from year to year with reference to the time of the original entry. The same principle in respect to holding over a term was announced in Doe v. Dobell, 1 A. & E. (N. R.) 806, where it was said that "in all cases the current year refers to the time of entry unless the parties stipulate to the contrary." The doctrine of the English cases seems to be that a party entering under a lease, void by the statute of frauds, for a term, as expressed in it, of more than one year, and paying rent is treated as a tenant from year to year from the time of his entry, subject only to the right to terminate the tenancy without notice at the end of the specified term. And to that extend and for that purpose only, the terms of agreement, in such case, regulate the time to quit. This right is held to be reciprocal. Doe v. Stratton, 4 Bing. 446. That proposition is 664: DERIVATIVE TITLES (Part 2 not without sensible reason, for its support. The lease for more tlian one year, unless made in the manner provided by the statute, cannot be effectual to vest the term in the lessee, yet in other respects the. rights of the parties may be determined by its terms, so far as they are consistent with its failure, to create any estate or interest in the land or any duration of term for occupancy by the lessee. And that principle is properly applicable to such leases. Porter v. Bleiler, 17 Barb. 154; Reeder v. Sayre, 70 N. Y. 184, 26 Am. Rep. 567; Laughran V. Smith, 75 N. Y. 205, 209. This view does not aid the defendants. They became tenants from year to year as from the time of their entry ; and although by virtue of the terms of the agreement, in tliat respect, in the lease, they may have been at liberty to quit on the first of August, 1886, if they had remained until then, such time in that, or the year previous, could not be treated as the end of any year of the tenancy. The defendants having entered upon the second year from the time of the original entry, it was not within their power to terminate their relation or liability as tenants until the end of the then current year, which did not terminate until the first of March, was reached. The conclusion, from these views, necessarily follows that the judg- ment should be affirmed. All concur, except Brown, J., not sitting. Judgment affirmed.*^ CLAYTON V. BLAKEY. (Court of King's Bench, 1798. 8 Term Rep. 3.) This was an action against a tenant for double rent, for holding over after the expiration of his term, and a regular notice to quit. The first count of the declaration stated a holding under a certain term, determinable on the 12th of May then past'; and other counts stated a holding from year to year, determinable at the same period. It appeared in evidence, that the defendant had held the premises for two or three years, under a parol demise for twenty-one years from the day mentioned, to which the notice to quit referred ; and the Statute of Frauds directing that any lease for more than three years, not reduced into writing, shall operate only as a tenancy at will, it was contended, at the trial of the last assizes for Northumberland, that the holding should have been stated according to the legal operation of it, as a tenancy at will ; and as there was no count adapted to that statement, that the plaintiff ought to be nonsuited. Rooke, J., how- ever, considering that it amounted to a tenancy from year to year, over-ruled the objection, and the plaintiff obtained a verdict. Wood now moved to set aside the verdict, on the ground of a mis- direction, relying upon the positive words of the stature 42 See Adams v. City of Cohoes, 127 N. Y. 175, 28 N. E. 25 (1891) ; Larkin ?. Avery, 23 Conn. 304 (1S54). Ch. 5) ESTATES CREATED 665 Lord Kenyon, C. J. The direction was right; for such a holding now operates as a tenancy from year to year. The meaning of the statute was, that such an agreement should not operate as a term ; but what was then considered as a tenancy at will, has since been properly construed to enure as a tenancy from year to year. Per Curiam. Rule refused.*' GRISWOLD V. BRANFORD. (Supreme Court of Errors of Connecticut, 190S. 80 Conn. 453, 68 Atl. 987.) Action to recover rent, brought to and tried by the Court of Common Pleas in New Haven County, Bennett, J. Facts found and judgment rendered for the plaintiff for $420, and appeal by the defendant. No error. The plaintiff sought to recover the agreed rent of certain premises for the year beginning October 1st, 1899. He set up a parol lease for that term, and alleged that the defendant entered into possession under it, continued in possession through the term, and had paid no rent. The defendant pleaded a general denial and the statute of limitations. Prior to October 1st, 1897, the parties entered into a parol agree- ment whereby the plaintiff undertook to lease and the defendant to hire the premises for the term of two years from said October 1st, at an annual rental of $300 payable annually at the end of each year. The defendant thereupon went into occupation on said day and continued in such occupation throughout tlie two-year period, and paid the agreed rent at the end of each year as stipulated. Before the period had expired a new parol agreement, embodying precisely the same terms and for the same time was made, and the defendant continued its possession confessedly until January 1st, 1900, and as the plaintiff claims, until May, 1901. The premises were hired and used for the purposes of the Town Court. On December 31st, 1899, the selectmen gave written notices to the plaintiff and the officers of the court that 4 3 "It is true the Revised Statutes, c. 60, § 21, declare that all interests or estates in lands, created without any instrument in writing, shall have the force and effect of estates at will only ; yet we think that this estate, when once created, may, like any other estate at will, by subsequent events, be chang- ed into a tenancy from year to year. In the case before us the lessee entered into possession, and the possession was continued from year to year, until July, 1844, and the rents semi-annually paid by the lessee and accepted by the landlord. From these facts a new agreement may well be presumed, and the estate, which was originally created by the statute as an estate only at will, expands into a holding from year to year." Barlow v. Wainwright, 22 Vt. 88, 52 Am. Dec. 79 (1849). Ellis v. Paige, 1 Pick. (Mass.) 43 (1822), contra. See Richardson v. Giffard, 1 A. & E. 52 (1834), where a tenant who had gone into possession under an agreement for a lease for three years at an annual rent, but which agreement was not executed as required by the- Statute of Frauds, was held liable on an undertaking in such agreement to keep the prem- ises in repair. 666 DERIVATIVE TITLES (Part 2 on and after January 1st, 1900, its sessions would be held in the town hall, and that, as was the fact, suitable accommodations had been pro- vided there. On January 1st the defendant removed from the plain- tiff's building substantially all of its furniture, but the judge of the court continued to hold its sessions there until May 1st, 1901. No rent was paid after October 1st, 1899. The action was begun September 28th, 1906. Judgment was rendered for $300 as the rent for one year from October 1st, 1899, with interest thereon from October 1st, 1900. Prkntice, J. Prior to October 1st, 1897, these parties entered into a parol agreement whereby the plaintiff undertook to lease the premises in question to the defendant for the period of two years from and after said October 1st, for an annual rent of $300 payable at the end of each year. The defendant thereupon, on said date, entered into possession of the premises and thereafter remained in possession thereof until January 1st, 1900, if not later. The amount of rent in said parol agree- ment stipulated to be paid, was paid as agreed for each of the two years succeeding October 1st, 1897. Beyond question, therefore, the defend- ant became a tenant from year to year, and remained such tenant down to October 1st, 1899. The recited facts disclose a lease not actionable by the statute of frauds, an entry into possession under it, and the pay- ment and acceptance of the stipulated annual rent, thus satisfying even more exacting conditions than those contended for by the defendant as necessary to create by implication of law a tenancy from year to year, and more exacting ones than our law requires. Lockwood v. Lock- wood. 22 Conn. 425, 433; Larkin v. Avery, 23 Conn. 304, 316; Corbett v. Cochrane, 67 Conn. 570, 577, 35 Atl. 509. When, therefore, the defendant, with the acquiescence of the plaintiff, remained m posses- sion after October 1st, 1899, as it confessedly did, a tenancy for a new year commencing on that date was created, unless a new and different situation arose from the second parol agreement and the conduct of the parties under it. 1 Washburn on Real Property, § 797; 4 Kent's Comm. 115; 1 Taylor on Landlord & Tenant, § 55. If this ineffective agreement and subsequent conduct was barren of legal results, the ac- countability of the defendant to the plaintiff for the amount of rent for which judgment in this case was rendered, and for that amount covering the precise period described in the complaint, follows. And judgment for that amount might, under those conditions, have been rendered upon the present complaint, although it avers a lease by parol for one year, made on or about October 1st, 1899. The facts do not, indeed, show a technical lease of any kind, or that the parol lease was one for the expressed period of one year from that date, but they do disclose a tenancy with an obligation to pay an agreed rental of $300, and that the tenancy was one for the year in question, all as the result of the acts of the parties. Larkin v. Avery, 23 Conn. 304, 316. Acts and contracts may be stated according to their legal effect, and imma- terial variances are not to be regarded. Practice Book, 1908, p. 244, § 144; page 245, § 149. Ch. 5) ESTATES CREATED 667 The defendant is thus placed in the position where, as one of the conditions of any successful defense he may interpose, he must estab- lish a new tenancy beginning October 1st, 1899. Counsel appear to have been unmindful of the full significance of the pre-existing relation of the parties as bearing upon both the incidental question as to wheth- er the defendant's continued possession was under a new tenancy suffi- ciently established, or under a mere continuance of the term of die old one, and upon the ultimate question of the plaintiff's right to recover the $300 rental for which judgment was obtained. The plaintiff's coun- sel approaches the question at issue as though the parol agreement of 1899 was the first significant fact in the record, and upon the assump- tion that the possession after October, 1899, was so clearly referable to it that there would be attached to that possession the same impor- tance as would have been attached to an original entry. The defend- ant's counsel likewise looks to the events of 1899 as determining the relations of the parties, but urges that there is a distinction not to be lost sight of between an entry and a continuance in possession as evi- dencing a holding under a tenancy having its origin in an agreement ineffective in itself. Approaching the question at issue in the manner thus indicated, the plaintiff claims that the defendant's possession after October 1st, 1899, following the new parol agreement, created a new and independent status. This status, he says, was that of a tenancy from year to year. The practical result of this claim is that while the origin of the tenancy after October 1st, 1899, is found in the events of that year, the char- acter and incidents of the tenancy are precisely the same as would have resulted from the defendant's occupancy had there been no attempt to make a renewal lease. The defendant's position with respect to the question of the creation of a new tenancy referable to the new agree- ment is not definitely stated, although the inference to be drawn from the distinction he makes between a continued occupancy and a new entry would seem to indicate that it was that no such new tenancy came into existence. His main contention, however, is that whatever new tenancy may have been created by the events of 1899, it was one at will and not one from year to year. We have already observed that a successful defense involves the establishment by the defendant of two propositions, to wit: (1) That the defendant's possession after October 1st, 1899, was under a new tenancy of some sort, and (2) that this tenancy was, to say the least, not one from year to year. If it be assumed, as the plaintiff claims and the defense requires, that a new and independent tenancy origi- nated in the events of 1899, the question remains as to its character. The defendant urges that it was one at will, since no rent was paid for any occupancy or period after October 1st, 1899. His contention is that the payment of rent must concur with possession by the lessee un- der a term lease in violation of the statute of frauds, in order that a tenancy from year to year be created by implication of law, and that 668 DERIVATIVE TITLES (Part 2 without such payment the tenancy will be regarded as one at will. Whatever the rule may be elsewhere, such is not the law of this juris- diction. Tenancies from year to year by implication are the results of judicial legislation as a measure of equity and sound policy. 1 Washburn on Real Property, § 797. In this State the long-established rule is that when parties make an oral lease of lands reserving rent, which lease is non-actionable by reason of the statute of frauds, and the lessee thereafter enters into possession under the lease, there re- sults a tenancy which under ordinary conditions at least will by im- plication of law be regarded as one from year to year. Larkin v. Av- ery, 23 Conn. 304 ; Corbett v. Cochrane, 67 Conn. 570, 35 Atl. 509. This rule has an especial appropriateness in this State where parol leases for a term not exceeding one year under which possession is taken are not invalid by our statute of frauds. The same result would of course logically follow, where the lessee remained in a possession previously acquired, if the circumstances were such as to sufficiently disclose that his continued possession was referable to the ineffective lease, and therefore under it, as an agreement made, although not en- forceable in and of itself. Andrew v. Babcock, 63 Conn. 109, 121, 26 Atl. 715. Section 4043 of the General Statutes 1902 first enacted, in substance, in 1866, prescribes that a holding-over possession, standing by itself, shall not be regarded as evidence of any agreement of a further lease. It does not, however, prevent a tenancy from being established by other recognized means. One of these means, recognized long be- fore the legislation of 1866, was that of supplementing proof of the agreement non-enforceable under the statute of frauds, with proof of the acts of the parties disclosing a recognition by them of a tenancy in fact under it. 1 Swift's Digest, s. p. 91 ; Lockwood v. Lockwood, 22 Conn. 425 ; Larkin v. Avery, 23 Conn. 304. The only significance which can reasonably attach to a mere payment and receipt of rent, is to be found in a recognition of a tenancy of some sort under the in- valid lease, and our own courts have well said that, however satisfac- tory such a recognition might be, there might well be one sufficiently disclosed in other ways. In some jurisdictions, rent payments of an- nual sums or aliquot parts thereof have been, by reason of their indica- tion of the intention of the parties, regarded as essential to the conver- sion of what by force of statute or judicial construction are prima facie tenancies at will into tenancies from year to year. Such is not the law of this State. The defendant having, for the reasons stated, failed in his contention that the tenancy after October 1st, 1899, was other than one from year to year, the judgment appealed from was properly rendered. Upon our conclusions the defense that the statute of Hmitations had run against the plaintiff's claim is confessedly not well made. There is no error. In this opinion the other judges concurred. Ch. 5) ESTATES CREATED 669 LYONS V. PHILADELPHIA & R. R. CO. (Supreme Court of Pennsylvania, 1904. 209 Pa. 550, 5S Atl. 924.) Appeal from report of viewers. From the record it appeared that plaintiffs who were liquor dealers, entered into a verbal undertaking with Rieker, the then owner, the terms of which were that they agreed to pay twenty-five cents for each barrel of beer more than the regular price elsewhere, as rental. The rental was "payable just as the beer bill was payable — paid at all times, * * * along different periods, — running account, * * * some- times every week they got a check.'' The understanding was that the plaintiffs "had a right to remain on that lot as long as you [they] want- ed," or, as the owner's son testifies, they "could have stayed as long as they felt." The tenants erected buildings on the premises which were used for bottling, storage, liquor-room and offices, — and also a stable, wagon shed, coal shed and outbuildings and machinery necessary to the con- duct of their business. The defendant company being desirous to enter upon the lands for railroad uses, presented a bond in the usual form, which was approved May 16, 1901, and thereafter viewers were appointed for the purposes stated. The defendant gave notice to the plaintiffs December 20, 1901, that it desired possession of the lot March 1, 1902, and stated the notice was given to allow them time to arrange their affairs, but did not take actual possession of the premises until June 4, 1902. The plaintiffs disregarded the notice, and the railroad company pro- ceeded to the demolition of the buildings. The court gave binding in- structions for defendant. Per Curiam. The appellants were tenants at will of Rieker. The agreement under which they went into possession was altogether indefi- nite as to the time it was to last ; they were to "remain as long as they wanted." The rent was not fixed either as to amount or time of pay- ment, but was deterrnined by the number of barrels of beer they should purchase from their lessor, and was payable "just as the beer bill was payable." A clearer case of tenancy at will would be hard to discover. Under such circumstances the mere fact that the tenancy ran along for more than a year did not change its character or convert it into a tenancy from year to year. "Where the duration of the term is left uncertain * * * the lessee holds ab initio as a tenant at will. And the mere payment of rent will not change the tenancy into one from year to year, unless there are other circumstances to show an intention to do so, as for instance an agreement to pay rent by the quarter, or some other ahquot part of the year :" 18 Am. & Eng. Ency. of Law (2d Ed.) tit Landlord & Tenant, p. 183. But "the mere payment of a periodical rent, however, will not necessarily have the effect of changing the ten- 670 DERIVATIVE TITLES (Part 2 ancy at will into a periodical tenancy and parol evidence may be ad- mitted for the purpose of showing the character of the payment:" 18 Am, & Eng. Ency. of Law (2d Ed.), p. 186. It was on this last prin- ciple that the issues in McDowell v. Simpson, 3 Watts, 129, 27 Am. Dec. 338, and Dunn v. Rothermel, 112 Pa. 272, 3 Atl. 800, were sent to the jury to determine whether the leases were at will or from year to year. In both cases the rent was paid yearly, and the expression of Justice Kennedy, in the former, so much relied on by appellants, that "if the tenants were suffered to hold under it for upwards of a year, paying the rent as it became due, and the plaintiff receiving it without objection, the lease instead of continuing to be a lease strictly at will would thereby become a lease from year to year," must be read in connection with the facts of the case. Being tenants at will, the termination of the lessor's estate, even though by involuntary alienation under eminent domain determined the appellants' lease, and made them technically tenants at sufferance of the railroad company. The difference, however, is not practically of any importance. All they were entitled to in either case was notice and a reasonable time to remove their goods and fixtures. This they received, but failed to avail themselves of, and the learned judge below was justified in treating their conduct as an abandonment. The filing of the bond by the railroad company did not change the nature of the tenancy, nor the rights of the appellants except so far as it substituted the company as lessor in place of Rieker. The bond was security for such damages as the appellants "shall be entitled to receive for the entering by the said company upon the said lands, and establish- ing and constructing the said additional tracks and structures thereon." If the company had entered immediately and demolished the buildings in the construction of its tracks, it would have been liable just as its predecessor, Rieker, would have been, for the damages caused by want of reasonable opportunity to appellants to remove their property, but such opportunity having been given, there were no damages, and the verdict was rightly directed for defendant. Judgment affirmed.** RIGHT d. FLOWER v. DARBY et al. (Court of King's Bench, 17S6. 1 Term Rep. 159.) Ejectment tried at the last assizes at Salisbury, before Plotham, Baron, when a verdict was found for the plaintiff, subject to the opin- ion of the Court of King's Bench on the following case: That the lessor of the plaintiff was seised in fee of the premises in question. That on the 11th day of May, 1781, the defendant Darby took the premises, which are a house in Salisbury, and occupied them 4 4 See Doe d. Tomes v. Chamberlain, 5 M. & W. 14 (1839) ; Sheldon v. Davey, 42 Vt. G37 (1870), ace. Ch. 5) ESTATES CREATED 671 as a public-house from that time under a parol demise at £10. per an- num ; the rent to commence from Midsummer then next following. The defendant Darby let part of the premises to the defendant Bris- tow. That on the 26th March, 1785, the defendant Darby was served with a notice to quit on the 29th of September following. The question is, whether the lessor of the plaintiff is entitled to re- cover ? Lord Mansfield, C. J. When a lease is determinable on a certain event, or at a particular period, no notice to quit is necessary, because both parties are equally apprized of the determination of the term. If there be a lease for a year, and by consent of both parties the tenant continue in possession afterwards, the law implies a tacit ren- ovation of the contract. They are supposed to have renewed the old agreement, which was to hold for a year. But then it is necessary for the sake of convenience, that, if either party should be inclined to change his mind, he should give the other half a 'year's notice before the expiration of the next or any following year: now this is a notice to quit in the middle of the year, and therefore not binding, as it is contrary to the agreement. As to the case of lodgings, that depends on a particular contract, and is an exception to the general rule. The agreement between the parties may be for a month or less time, and there to be sure much shorter notice would be sufficient, where the tenant has held over the time agreed upon, than in the other case. The whole question depends upon the nature of the first contract. AsHHURST, J. There is no distinction in reason between houses and lands, as to the time of giving notice to quit. It is necessary that both should be governed by one rule. There may be cases, where the same hardship would be felt in determining that the rule did not extend to houses as well as lands ; as in the case of a lodging-house in Lon- don, being let to a tenant at Lady-Day to hold as in the present case: if the landlord should give notice to quit at Michaelmas, he would by that means deprive the lessee of the most beneficial part of the term, since it is notorious that the winter is by far the most profitable sea- son of the year for those who let lodgings. BuLLER, J. It is taken for granted by the counsel for the plaintiff, that the rule of law, which construes what was formerly a tenancy at will of lands into a tenancy from year to year, does not apply to the case of houses, but there is no ground for that distinction. The rea- son of it is, that the agreement is a letting for a year at an annual rent ; then if the parties consent to go on after that time, it is a letting from year to year. This reason extends equally to the present case ; an an- nual rent is here reserved ; and upon such a holding it has been de- termined that half a year's notice to quit is necessary. This doc- trine was laid down as early as in the reign of Henry the Eighth. [13 H. VIII, 15 b.] The rhoment the year began, the defendant had a right to hold to the end of that year; therefore there should 672 DERIVATIVE TITLES (Part 2 have been half a year's notice to quit before the end of the term. This gives rise to another objection in this case, upon the distinction between six months and half a year. The case in the Year-Books requires half a year's notice; but here there is less than half a year's notice, and therefore it is bad on that ground also. Judgment for the defendant. HERTER V. MULLEN. {Court of Appeals of New York, 1899. 159 N. Y. 28, 53 N. E. 700, 44 L. B. A. 703, 70 Am. St, Rep. 517.) Martin, J. This action was to recover seven months' rent of a dwelling house situated upon Madison avenue, in the city of New York. There was a lease between the parties, by which the defend- ants rented the premises from May 1, 1894, for the period of one year, the rent payable in monthly installments in advance. The rent for that term has been paid. By this action the plaintiff seeks to recover rent for a portion of the succeeding year, on the ground that the defend- ants held over after the expiration of their term, and thus became liable for the rent of the premises for that time. The facts are undis- puted. The defendants alleged as a defense to the action the making of the contract or lease with the plaintiff; that in the month of Feb- ruary, 1895, before the expiration of their term, they notified the plaintiff that they would not retain the premises for another year, and that after such notice the plaintiff and his agents were permitted to show the premises, and to place the usual notice "To Let" upon them, which remained during the balance of the term. The defendants then specially alleged that on May 1, 1895, the de- fendants were prevented from yielding up the possession of the prem- ises by the act of God in afflicting their mother, who was a member of their family, with a disease which, at that time, previously, and subsequently, including May 15th, confined her to her bed so that it would have endangered her life to take her from the house; that for that reason, and no other, of which the plaintiff had full knowledge and notice, the defendants were obliged to and did occupy a small portion of the premises until May 15th; that all their property,' furni- ture, and belongings and their family were removed from the premises, and every part thereof, on May 1, 1895, except from the sick room in which their mother was confined, and that they were forbidden by the physician in charge to remove her until May 15th, when she was at once removed. Upon the trial it was admitted that upon the 1st of February, 1895, the defendants notified the plaintiff that on the 1st of May they would give up and surrender the possession of the premises. That they were occupied under the lease was admitted, also the rate of rent, and the fact that the defendants, from necessity, held over after the expira- Ch. 5) ESTATES CREATED 673 tion of the lease some 15 days. The plaintiff then admitted the facts set up in the answer as to the impossibility of the defendants' sur- rendering possession at the expiration of the year, so that the question presented is whether, notwithstanding the facts alleged in the answer, the plaintiff was entitled, as a matter of law, to recover rent for the succeeding year, upon the ground that the defendants held over after the expiration of their term. • The admission of the plaintiff amounts to a concession that, by rea-. son of the sickness of the defendants' mother, it was impossible for them to surrender up the possession of the premises to the plaintiff; that, so far as it was possible, they did so; and hence, that their retention was wholly involuntary. If there was any doubt as to the question of impossibility, it should have been submitted to the jury, and the defendants' exception to the direction of a verdict was well taken. Thus, in a word, the question is whether that impossibility jus- tified the defendants' action, or whether, although it was impossible to surrender the entire premises, the holding of a small part for a few days imposed upon them a liability for rent for the succeeding year. It is well settled that, where a tenant voluntarily holds over after the expiration of his term, he may be held as upon an agreement to hold for a year upon the terms of the prior lease. Conway v. Starkweather, 1 Denio, 114; Board v. Clark, 33 N. Y. 251; Haynes v. Aldrich, 133 N. Y. 287, 289, 31 N. E. 94, 28 Am. St. Rep. 636. The basis of this lia- bility is often said to be an implied agreement upon the part of the tenant to hold for another year. While I doubt, as I always have, the propriety of calling, this class of obligations implied contracts, but think they are to be regarded as duties which the law im- poses, yet, whether they be denominated implied contracts or du- ties created by law, in either case the right arises upon' an impli- cation of law, and in no sense upon an express or absolute contract. It is also well settled that, where a duty or charge is created by law, and the performance is prevented by inequitable accident or the act of God, without fault of the party sought to be charged, he will be excused, but where a person absolutely, and by express contract, binds himself to do a particular thing, which is not at the time impos- sible or unlawful, he will not be excused, unless through the fault of the other party. The reason given for the latter portion of this rule is that he might have provided by his contract against inevita- ble accident or the act of God. Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142 ; Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec. 349; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415. Thus the most that can be said of the obligation that arises from the relation of landlord and tenant and follows by a general lease is that the tenant is charged with the duty of vacating the premises at the end of his term. If he fails, it is a breach of his duty, and or- dinarily the law implies or creates a liability on his part for an- Aig.Pbop, — 13 574 DERIVATIVE TITLES (Part 2 other year's rent. This being a duty impUed or created by law, and not by an express or absolute agreement, it falls within the first part of the foregoing rule, and hence it is obvious that, if the tenant's re- moval was rendered impossible by inevitable accident or the act of God, he is excused for his omission to surrender the premises, at least so far as it creates a liability for a year's rent which is implied by law. The reason for the distinction between the effect of impossibility . of performance, occasioned by inevitable accident or the act of God, upon an obligation created by express contract and upon an obligation which the law implies, has been held to rest "upon the unwillingness of the law to at once create, impose, and exact the performance of an obligation forbidden or rendered impracticable by the interposition of Providence." School Dist. v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371. Under the principle of the authorities relating to this subject, I think it is clear that, as the obHgation sought to be enforced was one created by law, and not by the agreement of the parties, impos- sibility of performance was a valid excuse, and the defendants cannot be held for the rent for the subsequent year. Moreover, the same result may be reached upon another ground. There are many cases where the courts have impHed a condition in a contract to the effect that a party is relieved from its terms where its performance has, without his fault, become impossible. The principle upon which those cases are based is that, when the contract was made, the parties con- templated that the condition which subsequently existed might arise, and render performance impossible, and that the implied condition is to be construed as a part of the existing contract, and thus relieves the party from liability in case that condition arises. Dexter v. Nor- ton, 47 N. Y. 62, 7 Am. Rep. 415; Lorillard v. Clyde, 142 N. Y. 456, 462, Z7 N. E. 489, 24 L. R. A. 113; Stewart v. Stone, 127 N. Y. 507, 28 N. E. 595, 14 L. R. A. 215; Spalding v. Rosa, 71 N. Y. 40, 44, 27 Am. Rep. 7; Taylor v. Caldwell, 3 Best. & S. 826; Robinson V. Davison, L. R. 6 Exch. 269; Kein v. Tupper, 52 N. Y. 550, 555; Dolan V. Rodgers, 149 N. Y. 489, 492,' 44 N. E. 167. To hold in this case that this agreement was made upon an implied condition that the defendants should not be required to vacate the premises at the expiration of their term in the event that it was ren- dered impossible by inevitable accident or the act of God is quite with- in the principle of the authorities cited. But, be this as it may, it is manifest that the charge or liability which the plaintiff' seeks to en- force was created by law, and not by agreement, and that, as its per- formance was prevented without the defendants' fault, they were ex- cused from the onerous liability which the plaintiff now seeks to enforce. It may well be, and doubtless is, true that the plaintiff may recover for the time the premises were occupied by the defend- ants, or if, by reason of their failure to surrender up the premises, additional damages follow, that they may be recovered in a proper ac- Ch. 5) ESTATES CREATED 675 tion so that all damages caused by the defendants* misfortune would be borne by them, but that he cannot recover the rent for the subsequent year upon the implied contract or duty imposed by law seems to me clear. These considerations lead me to the conclusion that the judgment in this action should be reversed, and a new trial ordered, widi costs to abide the event. "'^ GOLDSBOROUGH v. GABLE. (Supreme Court of Illinois, 1S92. 140 111. 2C9, 29 N. E. 722, 15 L. R. A. 204.) ScHOLriELD, J. Appellant brought covenant against appellee for rent. Upon the trial in the circuit court, appellant read in evidence a deed, executed by himself to appellee, leasing certain real estate in Peoria from March 18, 1883, until March 18, 1884, for $840, payable in installments of $70 on the 18th day of each month; occupation of the premises, after the execution of the deed, by appellee until the ISth of October, 1888 ; the payment of the stipulated rent for the term described in the deed; the failure of appellee to surrender possession of the premises at the expiration of the term, and his con- tinued occupancy thereof ; payment of the same rent for the first month after the expiration of the term, as provided by the deed to be paid by the month during the term ; and the payment of other sums for rent from time to time throughout the period that appellee oc- cupied the premises ; amounting, however, in -the aggregate, to a less sum than the total amount of rent due at the rate provided to be paid by the deed. Appellee was permitted to introduce evidence, over the objection ol appellant, tending to prove that, after the expiration of the term de- scribed in the deed, and after he had paid appellant one month's rent for the occupation of the premises at the rate provided to be paid in the deed, namely, on the 28th of May, 1884, he commenced negotiating with appellant to reduce the rent for the premises; that the negotia- tion was protracted until the 9th of July following, when it was agreed between appellant and appellee that the rent for the prem- ises should be reduced to $50 in lieu of $70 per month, as it had been theretofore; and the court refused to instruct the jury, at the instance of the appellant, that, even if they believed such agreement had been proved, it was "invalid, and could not be enforced," but, on the con- trary, the court instructed the jury that, if they believed from the evidence that such agreement had been proved, it was valid, and the 4 5 The concurring opinion by O'Brien, J., and the dissenting opinion by Gray, J., are omitted. Parker, C. J., and Haight, J., concurred with O'Brien and Martin, JJ., in voting for reversal. Bartlett and Vann, JJ., concurred with Gray, J. See Doe v. Crago, 6 C. B. 90 (1S4S) ; Oakley v. Monck, 3 H. & a 706 (1S65) ; Dougal V, McCarthy, [1S93] 1 Q. B. 736. 676 DERIVATIVE TITLES (Part 2 plaintiff was thereafter entitled to recover only $50 per month for the rent of the premises. In our opinion, the court erred in these several rulings. There was no evidence given on behalf of appellee tending to prove that he had surrendered the premises to appellant before the making of the agree- rhent of July 9, 1884, or that he had offered to do so, and refused to execute the terms of the lease, or that there was any reason why he could then have surrendered the premises and refused to execute the terms of the deed. Appellee having remained in possession after the expiration of the term described in the deed, without any new contract with appellant in respect thereto, it was optional with appellant to treat him as a trespasser, or to waive the wrong of holding over, and treat him as a tenant; and, by accepting the payment of the month's rent thereafter from appellee, appellant made his election, and appel- lee then became a tenant of the premises under appellant, from year to year, upon the same terms and subject to the same rent, etc., as is provided to be paid in the original deed. Prickett v. Ritter, 16 111. 96; Hunt v. Morton, 18 111. 75; McKinney v. Peck, 28 111. 174; Cloth Co. V. Gardner, 99 111. 151; Webster v. Nichols, 104 111. 160. The only respect wherein the agreement of the 9th of July, 1884, whereof evidence was permitted to be given to the jury, purported to change this tenancy from year to year, is in the amount of the monthly payment of rent to be made. Appellee, by that agreement, is required to do nothing which he was not already obligated to do as tenant from year to year, and appellant's duties are in no wise less- ened or changed thereby. It simply purports to obligate appellee to pay and appellant to receive $50, where they were already obligated, the one to pay and the other to receive $70. There is thereby neither in fact nor in presumption of law injury or loss to appellee, or gain or benefit to appellant. It follows that it is an agreement, as clearly as one can be, without any consideration to support it, — a mere nudum pactum ; and so it is binding upon neither of the parties, and is in- susceptible of being enforced in this suit. Titsworth v. Hyde, 54 111. 386; Seybolt v. Railroad Co., 95 N. Y. 562, 47 Am. Rep. 75; Daven- port V. Society, 33 Wis. 387 ; Johnson's Adm'r v. Sellers, 33 Ala. 265 ; Gordon v. Gordon, 56 N. H. 170. See, also, 3 Amer. & Eng. Enc. Law, 390, 391, and notes. It is impossible to say that the agreement was made as an adjust- ment of a dispute in regard to a doubtful right, for appellee's own tes- timony shows that there was no fact in dispute between him and ap- pellant. His testimony is only that he claimed that the rent should be reduced, and that appellant resisted the claim at first, but finally yielded to the extent shown by the agreement. It cannot be held that appellant is in any way estopped by the agreement, since it is nof shown that appellee has in consequence of it, done that which he would otherwise not have done, whereby he will be injured if the agreement be not carried out ; nor can it be held that the agreement has the effect Ch. 5) . ESTATES CREATED 677 of an executed gift as to the difference between the $50 and the $70 per month, because there was executed no receipt or release for the amount, and there was no proof of any action of the parties equiv- alent thereto. The judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court for a new trial. KING V. DURKEE-ATWOOD CO. (Supreme Court of Minnesota, 1914. 126 Minn. 452, 148 N. W. 207, L. R. A. 1915A, 235.) BuNN, J. Defendant was a tenant of plaintiff under a lease from month to month, the leased premises being a store in Minneapolis and a flat above it. The rent was payable monthly in advance. April 4, 1913, defendant caused to be served on plaintiff a notice of the termi- nation of the tenancy of May 31st. Defendant did not, however, va- cate the premises on the date named, but continued in possession until June 30th, when it ceased to occupy the premises for any purpose, and delivered the keys to plaintiff. The holding over was with the knowl- edge and consent of plaintiff, though there appears to have been no agreement as to the terms upon which the tenant held over. Appar- ently it was understood that the tenant was to move to new quarters as soon as they were ready, and that it was not the intention of de- fendant to continue its occupancy of the leased premises beyond the month of June. \ This action was brought to recover the rent of the store for the months of June, July, and August, and of the flat for tlie months of June and July. Plaintiff was unable to rent the store in July or Au- gust, but occupied the flat the latter month. Defendant admitted its liability for the month of June, during which it occupied the premises, but claimed that it was not liable for the July and August rent. The trial was to a jury. The court instructed that the tenant's holding over after May 31st made the notice a nullity, that the case was as if no notice had been given, and that defendant was liable for the July and August rent. The verdict was in accord with this instruction. Defend- ant moved for a new trial, and appealed from an order denying such motion. The decision here depends upon whether the instruction of the court to the jury, above referred to, is a correct statement of the law as ap- pHed to the facts in the case. 1. If the notice was rendered a nullity by the tenant's holding over, it must be on the ground of waiver. It is clear, in this state at least, that a notice by the landlord to a tenant to quit may be waived by the landlord, and that such notice is thenceforth inoperative. Arcade In- vest. Co. v. Gieriet, 99 Minn. 277, 109 N. W. 250. See note to Wisner V. Richards, Ann. Cas. 1912D, 160. 678 DERIVATIVE TITLES . (Part 2 It is doubtless true that a tenant may withdraw or waive a notice to quit given by him. And if he does waive it, it is plainly correct that the situation is as if no notice had been given. Clearly, notice was necessary in order to terminate this tenancy at will or from month to month. Rev. Laws 1905, § 3332. Did the tenant, by holding over after the time named in the notice, waive or withdraw such notice? There are some statements in text- books, and at least one reported case, that lends support to the view that such holding over is only presumptive evidence of waiver, and does not operate as a matter of law to continue the tenancy. In Cyc. the law is thus stated : "No continuance of the tenancy is necessarily implied from the mere fact of a tenant continuing in possession after the expiration of a notice to quit given by such tenant. It is for the jury to decide whether or not the tenant, by remaining in possession, intends to waive the notice and continue the tenancy." 24 Cyc. 1336. But one case is cited as authority for the text, and that is Jones v. Sheares, 4 Ad. & El. 832, 6 Nev. & M. 428, 2 H. & W. 43, 5 L. J. K. B. (N. S.) 153. This case was determined by the court of King's Bench in 1836. The lessee of the coal under certain lands gave a notice, as under the lease he had a right to do, that at the end of two years he would deliver possession and end the term. He continued for two months after the two years to work the coal, and it was claimed by the lessor that the notice was thereby waived. The lessee insisted that the working was not carried on with any view of continuing the tenancy, that the coal mined was taken from the pillars which supported the roof, and that this was customary on leaving a mine. It was held that tine question whether the lessee intended to waive the notice and con- tinue the tenancy was for the jury. Mr. Tiffany states that a tenant holding over after the time named in his notice of intention to quit is liable in use and occupation as a tenant holding over, but that such retention of possession does not necessarily operate as a waiver or withdrawal of the notice, so as to effect a continuance of the former tenancy. 2 Tiffany, Landl. & T. 1464. But the decided weight of authority is that a tenant who holds over after the expiration of his term may be held liable as tenant for a fur- ther period without reference to his actual wishes on the subject, and necessarily without reference to his intention to become a tenant for a further term. 2 Tiffany, § 209, and cases cited. It would seem to be immaterial whether the term expires because of the termination of the period named in. the lease, or by a notice to quit, given where the lease requires it or where the tenancy is at will. Graham v. Dempsey, 169 Pa. 460, 32 Atl. 408; Conway v. Starkweather, 1 Denio (N. Y.) 113; Schuyler v. Smith, ^^l N. Y. 309. 10 Am. Rep. 609. See, also. Smith V. Bell, 44 Minn. 524, 47 N. W. 263. The doctrine is that the landlord has the option to hold the tenant for another period, or to treat him as a trespasser or a tenant at sufferance. He may eject the tenant or Ch. 5) ESTATES CREATED 679 resort to summary proceedings to recover possession. But if he sues for the rent, or demands it, he elects to hold the tenant for another period, and the tenant has nothing to say about it. The rule is per- haps a harsh one, but it is too well settled generally and by our own decisions to justify departing from it. Smith v. Bell, supra; 3 Notes to Minn. Rep. 427. The length of the term for which the tenant will be held depends, in the absence of statute, on the character of his prior tenancy. In the case of a prior tenancy from month to month, such as was the tenancy in the case at bar, the tenant, on the election of the landlord to so treat him, becomes or remains a tenant from month to month. Smith v. Bell, supra. And this would be so as to urban property in case of a holding over without any new agreement after the termination of a lease for a definite tim6. Laws 1901, chap. 31 ; Rev. Laws 1905, § 3333; Gen. St. 1913, § 6812; Backus v. Sternberg, 59 Minn. 403, 61 N. W. 335; Ouade v. Fitzloff, 93 Minn. 115, 100 N. W. 660; Slafter V. Siddall, 97'^Minn. 291, 106 N. W. 308. See note in 25 L. R. A. (N. S.) 857; also, in 28 Am. St. Rep. 639. We are forced to the conclusion that defendant, by holding over after the time specified for the termination of the tenancy, waived the notice given by it. The trial court was therefore correct in instructing the jury that the notice was a nullity, and that defendant would be held just the same as though such notice had never been given. 2. It follows that notice was necessary in order to terminate this tenancy. It is admitted that no such notice was given. Defendant re- lies on the statute, before cited (Gen. St. 1913, § 6812), in support of its claim that it is liable only for one month's rent. But the cases of Stees v. Bergmeier, 91 Minn. 513, 98 N. W. 648, Quade v. Fitzloff, and Slafter v. Siddall, supra, are conclusive that this statute affords defendant no relief. It was enacted to do away with the harsh rule whereby, at the option of the landlord, a tenant under a lease for a definite term who remained in possession after the termination of his lease was bound for another term on the same conditions. If the stat- ute applies at all to a holding over after the termination by notice of a tenancy at will or from month to month, it cannot be construed as mak- ing a new tenancy for a single month. In Slafter v. Siddall, the lease was for a year, and the tenant held over without any new agreement. The statute was applied, and it was held that the tenancy was from month to month. Clearly, when the original tenancy is one from month to month, and the tenant has the right to give a month's notice and relieve himself from further liability, the statute was not intended to, and does not, convert such tenancy into one for a month only. Indeed, when we have said that the notice was a nullity, it is equivalent to saying that the tenancy at will was not terminated. It remained in force until the tenant quit after the expiration of the time named in a new notice. 680 DERIVATIVE TITLES (Part 2 It follows that the trial court was correct in holding that the tenancy- had not terminated, and that defendant was liable for the July and August rent. Order affirmed.*® ARBENZ V. EXLEY, WATKINS & CO. (Supreme Court of Appeals of West Virginia, ] 905. 57 W. Va. 580, 50 S. E. 813, 4 Ann. Cas. 625.) Brannon, p. John Arbenz, Sr., made a written lease, but not un- der seal, to Exley, Watkins & Co., leasing for a term of five years and three months a brick building, including the vacant parts of certain lots, in the City of Wheeling, the term commencing January 1, 1896, and ending March 31, 1902, for the annual rent of $700.00, commenc- ing April 1, 1896, payable in monthly instalments. The lessees took possession on the first week of January, and occupied the premises, paying rent monthly. On September 15, 1898, a fire totally destroyed said building. The lessees paid rent for that September and also for October, but with the rent of October sent a letter, October 31, 1898, to Arbenz, informing him that they "hereby" vacate tlie premises and surrender them to him. In November, 1898, Arbenz sued out a distress warrant against said lessees for rent from November 1, 1898, to October 31, 1899, and the same having been levied, a forthcoming bond was given, and in the proceedings upon it in the circuit court of Ohio county a verdict was rendered for the plaintiff for $502.54,. after deducting for failure to repair an engine, and judgment given thereon, and the defendants took a writ of error. The defendants filed a plea denying grounds of at- tachment, and denying all liability for the rent claimed. The judgment below was affirmed by this Court. Those matters will appear in 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957. On August 1, 1903, Arbenz brought assumpsit against Exley, Watkins & Co. to re- cover rent accruing later than that recovered in the proceeding above mentioned — to recover rent for the period beginning November 1, 1899, and ending December 31, 1902, a period of 38 months, at $700.00 per year, and the suit resulted in a verdict for only $148.15, that is, for the two months of November and December, 1899, the court holding *6 See Mason v. Wierengo's Estate, 113 Mich. 151, 71 N. W. 4S9, 67 Am. St. Rep. 461 (1897) ; Providence County Sav. Bank v. Hall, 16 R. I. 154, 13 Atl. 122 (1888), ace. The X. Company was lessee of certain premises at an annual rental under a lease expiring October 1, 1911. In July, 1910. a receiver was appointed to take charge of the business of the company. The receiver at once took possession and paid the rental in monthly installments until April, 1912, when he vacated the premises. In an action for rent accruing after such vacation, on the theory that the holding over had created a tenancy from year to year, the court held that after October 1, 1911, the receiver was merely a tenant at will. Dietrich V. O'Brien, 122 Md. 482, 89 Atl. 717 (1914). See, also, Blumenberg v. INIyres, 32 Cal. 93, 91 Am. Dec. 560 (1867) ; Pusey v. Presbyterian Hospital of Omaha, 70 Neb. 353, 97 N. W. 475, 113 Am. St. Rep. 788 (1903). Ch. 5) ESTATES CREATED 681 that no recovery could be had after the current year ending that date, on the theory that the tenancy from year to year then closed. The theory against the right to recover is, that a few days after the fire the defendants wrote Arbenz the following letter: "Oct. 31st, 1898. Mr. John Arbenz, City — Dear Sir: We beg to advise that we have va- cated, the premises known as west building on 20th street, destroyed by fire Sept. 15th, last, and hereby surrender possession of same. Yours truly, Exley, Watkins & Co." On the former writ of error we held that for want of a seal to the lease the term of years named in it was not created, but that it created an estate from year to year, and that said letter did not operate as a notice to quit, to end the tenancy so as to preclude recovery of rent up to November 1, 1899, the rent in litigation in the former proceeding. We did not go further, as no later rent was involved in that case. The question presented in the second suit is. Did the tenancy end 31st De- cember, 1899? Did that letter close the tenancy and stop the rent at that date, the close of the current year 1899? For the defendants the contention is, that the letter, accompanied by actual vacation of the premises, and coupled with the fact that in the circuit court in April, 1899, Exley, Watkins & Co. made defense in the former proceeding denying liability for rent, operated as a notice to quit and closed the tenancy 31st December, 1899. Take the letter. The question rests mainly on it. It states the facts that the lessees had vacated, and then surrendered possession. It does not notify that at the end of a current year in future the tenant would quit, but states present acts or past, vacation and surrender. The common law, for centuries, has required, in order that lessor and les- see, under a tenancy from year to year, may close the tenancy of his own motion, that a notice to quit should be given six months before the end of the current year. That period or time of notice must be prior to the close of a year. The Code 1899, chapter 93, section 5, pro- vides that "a. tenancy from year to year may be terminated by either party giving notice in writing to the other, prior to the end of any year, for three months, of his intention to terminate the same." That provision recognizes as still continuing the common law estate of ten- ancy from year to year and the process of terminating it by notice to quit, and changed it only in requiring written notice and fixing a shorter time of notice. Hence it seems that we must appeal to the com-, mon law and its mode of notice to test the efficiency of the letter as notice to quit. It does not notify of a future act of quitting, but relies on past vacation, and present surrender of possession for the effect of the letter. It does not name a day or time in future when the tenancy is to end. The profession has always regarded tliis as a requisite in a notice to quit, I think, 2 Taylor, Landlord & Ten. § 476, says : "Form of. — The notice may be given to quit on a particular day ; or, in general terms, at the end of the current year of the tenancy, which will expire next after the service of the notice; or, in one month after the next C82 DERIVATIVE TITLES (Part 2 rent-day. The latter form of expression is generally used where the landlord is ignorant of the period when the tenancy commenced ; and it is preferable even when the commencement of the tenancy is known, as it provides against any misapprehension of the exact day when the tenant entered." 1 Washburn Real Prop. § 810 says: "Notice. The Time. — Whether a longer or shorter time of notice is required, it must, in order to be binding, clearly indicate the time when the tenancy is to expire, and, of course, must be given a sufficient number of days before the time so indicated." The particular question before us is, whether that letter is bad as a notice to quit because (1) it is a quitting at its date, not notice of a fu- ture quitting at the end of a year, and (2) because it fails to state a time for quitting. Under the above and many other authorities we are driven to say that it did not end the tenancy at any time. Currier v. Barker, 2 Gray (Mass.) 224, and Steward v. Harding, Id., 335; Han- chet v. Whitney, 1 Vt. 31 1 ; Hunter v. Frost, 47 Minn. 1, 49 N. W. 327; Grace v. Michaud, 50 Minn. 139, 52 N. W. 390; Phoenixville v. Wal- ters, 147 Pa. 501, 23 Atl. 776; People v. Gedney, 15 Hun (N. Y.) 475; Prescott V. Elm, 7 Gush. (Mass.) 346; Berncr v. Gebhardt, 87 Mo. App. 409; Huntington v. Parkhurst, 87 Mich. 38, 49 N. W. 597, 24 Am. St. Rep. 146; Finklestein v. Herson, 55 N. J. Law, 217, 26 Atl. 688; Wa- ters V. Williamson, 59 N. J. Law, 2>2>7, 36 Atl. 665; Godard v. S. Carolina Railroad, 2 Rich. (S. C.) 346; Huyser v. Chase, 13 Mich. 98; Rollins V. Moody, 72 Me. 135. The text-book writers seem to so re- gard the law. I quoted from some above. Tiedeman on Real Estate, § 218, says that "the notice must not only be given for a certain length of time before the estate is to end, but the estate can only be deter- mined at the expiration of the time during which the tenant may law- fully hold, i. e. at the end of the rental period ; it can only be determmed at the end of the year, quarter or month, according as the tenancy is respectively a yearly, quarterly or monthly tenancy. The notice must be sufficiently clear in its terms as to the time when the tenancy is to expire." 3 Minor's Inst, part 1, 241. "The notice * * * must end with the period at which the tenancy commences." 2 Kerr, R. Prop. 1310. 1 Lomax, Dig. 164; 1 Greenleaf's Cruise, R. Prop. 248, § 26. Chitty on Contracts (Uth Ed.) 485, speaking of English common law, gays, "The notice must be framed with reasonable cer- tainty as to the time of quitting." In Currier v. Barker, 2 Gray (Mass.) 227, it was held that a present demand or notice to quit was insuffi- cient, and the rule is stated as follows : — "The notice to quit is techni- cal, and is well understood. It fixes a time at which a tenant is bound to quit, and the landlord has a right to enter at a time at which the rent terminates. The rights of both parties are fixed by it, and are dependent on it. Should the landlord decline to enter, and the tenant quit according to notice, the tenant could no longer be holden for rent, although he had given no notice to the landlord'. The lease is 'deter- mined' by such notice, properly given by either party. It is manifest, Ch. 5) ESTATES CREATED 683 therefore, that when such consequences depend upon the notice to be given, the notice should fix with reasonable exactness the time at which these consequences may begin to take effect. See, also, Walker v. Sharpe, 14 Allen (Mass.) 45." Of course, much force is to be given to the harmonious construction of the many cases by the text writers. Still, I have had a question whether the cases mean only that period of time before the termination must expire on the day of the close of the year, or that the notice must designate the time when the tenant intends to quit. Such seems to be the law. The only question is. Does it fit this case? It does seem of great force to say, that the only object of notice is to manifest an intent of one party to end the tenancy, and to inform the other party of that intent, and that the letter in this case did that. Arbenz surely knew that his tenants designed to end the tenancy, because he knew that they had quit the premises and surrendered possession. What more could formal notice do? True, it coiild not go to end the ten- ancy 31st December, 1898, because from the letter to that date was not three months. But could it not end the tenancy at close of 1899? Now, if the tenants had on the date of the letter given notice that they would quit 31st December, 1899, who would say that it would not be sufficient? Did not that letter disclose intent to quit? By law it could not operate to close the tenancy 31st December, 1898, because the time would be too short. Would it not operate then as soon as the law would let it, just as a formal notice at the date of the letter would have done, that is, December 31, 1899? Arbenz had notice of his tenants'^ intention to quit. Why could not that notice operate at the earliest date the law would allow it to operate? In addition, if anything more could in reason be demanded to disclose the intention of the tenants to stop the tenancy and to inform Arbenz of such intention, we add that the tenants in April, 1899, in court defended the claim of Arbenz to rent prior to November, 1899. Their defense was that the building was destroyed and they had sent that letter and abandoned possession. But here comes in the answer that the statute, reiterating common law prevalent for centuries, tells how the tenant must end his ten- ancy, that is, by written notice. It is dangerous for us to insert an ex- ception by saying that if the landlord had knowledge of the tenant's intention, it stands for notice. It may not be improper to say that I have given labored investigation of this case, as other members of the Court' have, and I have been impressed with the weight of the line of defense just stated, and have struggled to find a justification for adopt- ing it, as the payment of the whole rent by the defendants, without any return, works a hardship, which all the members of the Court appre- ciate; but I am compelled to say that to decide against the plaintiffs would be to fly in the face of practically si unanimity of authorities through several hundred years in all quarters where the common law rules. As applied generally the rule is right ; as applied in this case, it works hardship ; but we cannot bend a fixed rule to suit a hard case. 684 DERIVATIVE TITLES (Part 2 Counsel says that the statute only requires three months notice before end of year, and that the written notice need not specify time of quitting, and that to say so is to read such a requirement into the stat- ute. We answer that the statute only recognizes as the law already the requirement of notice to terminate a tenancy from year to year, and it has not changed the common law requisites of the notice. We have cited to us the Georgia case of Roberson v. Simons, 109 Ga. 360, 34 S. E. 604, in which the opinion says that while mere abandonment of premises at the end of the year "might perhaps" be sufficient to bring home notice to the landlord of the tenant's intention to terminate the tenancy, "so as to prevent the landlord recovering rent beyond the year immediately succeeding such abandonment." This is mere opin- ion. It was not at all in judgment — a thought in the mind, not ma- turely considered for actual judgment. Betz v. Maxwell, 48 Kan. 143, 29 Pac. 147, seems to support the defense in saying that as the land- lord from abandonment of possession knew of the intention to quit, formal notice was useless. This seems to be answered by the quota- tion above from Currier v. Barker. And it runs counter to the prin- ciple which all authorities assert, that mere abandonment will not dis- pense with notice, but the tenancy and liability for rent go on. "The tenant's liability for rent continues till he puts an end to the estate by notice, whether he continues to occupy the premises or not." 1 Washb^ R. Prop. § 807. So far is this so, that the landlord may, at his choice, relet and recover the difference, or let the premises stand vacant. Mer- rill V. Willis, 51 Neb. 162, 70 N. W. 914; 6 Ballard, R. Prop. § 462; Schuisler v. Ames, 16 Ala. TZ, 50 Am. Dec. 168; Adams v. Cohoes, 127 N. Y, 175, 28 N. E. 25, is strongly relied on. The judge writing the opinion does say that knowledge of intention to quit brought home to the landlord will dispense with formal notice. - In the vast mass of New York decisions it is readily noticed there are multitudinous con- flicts. This case is in conflict with other decisions in New York itself. It seems that the New York statutes entered into the case. We do not go on the theory that the former decision is res judicata to fix right to recover the rent involved in the present case. That case was for rent for a certain period of time — this for another. That case is res judicata to establish that it was a tenancy from year to year, but did not say how long. A case may settle principle, but not be res ju- dicata as to matters not immediately involved. We are compelled to reverse the judgment and render judgment for the plaintiff for his demand. Reversed. Ch. 5) ESTATES CREATED 685 SECTION 6.— CONCURRENT ESTATES CHALLIS, REAL PROPERTY. An estate, whether in possession or in remainder, admits of being so limited that several distinct individuals may be entitled to con- current and simultaneous interests. Moreover, several persons may take the same estate concurrently by descent; either at the common law, in the case of a descent to several sisters, or the representa- tives of several sisters ; or by a descent in gavelkind among several brothers, or their representatives ; or by other special custom, among several brothers and sisters, or their representatives. The several in- dividuals so entitled will, according to the nature of the relation sub- sisting between their interests, be (1) joint tenants, (2) tenants in common, (3) parceners, also styled coparceners, or (4) tenants by entireties. Littleton's definition of joint tenancy is founded upon the mode in which an estate is limited to joint tenants. If lands are limited to several persons by name, habendum to them for life, or lives, those persons are joint tenants during that life or those lives. Litt. sect, 277. They have an estate pur autre vie in joint tenancy. Similarly, if lands are limited to several persons by name, habendum to them and their heirs, those persons are joint tenants in fee simple. Joint tenancy is equally applicable to fees (excepts fees in general tail, as mentioned in the next following paragraph), to estates of mere freehold, and to chattel interests. Litt. sect. 28L An estate in general tail cannot be limited in joint tenancy, be- cause (except under the circumstances which would make the estate an estate in special tail) there cannot be a single heir of the bodies of the donees ; and the right of the several heirs in tail of the several donees to inherit, secundum f ormam doni, which is expressly conferred upon heirs in tail by the statute De Donis, would be repugnant to the right of the surviving joint tenants, upon the death of one, to enjoy the whole estate, which is the most prominent characteristic of joint tenancy. The distinguishing characteristic of joint tenancy is styled jus ac- crescendi, or the right by survivorship. Upon the death of one out of several joint tenants, the survivors hold the whole estate, and nothing passes to the representatives in title (whether real or personal) of the deceased tenant. Litt. sect. 280. But the practical advantage of the jus accrescendi is not neces- sarily equal for each of the joint tenants; for two men may have a joint estate for the life of one of them ; in which case, if that one who is cestui que vie should die in the lifetime of the other, the estate 68iS DERIVATIVE TITLES (Part 2 is determined, whereas, if the other should die in the lifetime of cestui que vie, the latter has the whole estate and becomes thenceforward sole tenant for his own life. Co. Litt. 181b. It still remains true, that each upon the death of the other takes the whole estate; but in the one case, the whole estate which he takes is reduced to nothing. The right by survivorship is liable to be defeated by any act which severs the joint tenancy and turns it to a tenancy in common. Joint tenants must claim an equal interest by the same title and in the same right. Co. Litt. 189a; Ibid. 299b. Therefore they can only take by purchase. And under limitations at the common law, they must all take simultaneously. But in limitations by way of use, if the use is declared jointly to several persons, some of whom are not yet ascertained or not yet in being, such last-mentioned persons, if and when they are ascertained or come into being, will be joint tenants with the others ; and the same rule holds good,, when the interests arise by devise. Co. Litt. 188a ; and Harg, n. 13 thereon ; 2 Prest. Abst. 56. The identi'ty of the interest and title of joint tenants is commonly analysed into the "fourfold unity" of interest, title, time and posses- sion. 2 Bl. Com. 180-184. This analysis has perhaps attracted at- tention rather by reason of its captivating appearance of symmetry and exactness, than by reason of its practical utility. It means only, that each joint tenant stands, in all respects, in exactly the same po- sition as each of the others ; and that anything which creates a dis- tinction either severs the joint tenancy or prevents it from arising. Blackstone seems not to have adverted to the fact, that the "unity of time" is not, under the learning of uses and devises, an indispensable requisite. Joint tenants are said to be seised per my et per tout; which ex- pression properly refers to two only, two being taken as a type or pattern for two or more. In one sense each has nothing, and in another sense each has the whole, nihil per se separatim et totum conjunctim. Co. Litt. 186a. In another sense, each has an equal aliquot share; namely, for purposes of alienation, whether total or partial, and for purposes of forfeiture. Ibid. Each can alienate his aliquot share, and can thereby sever the joint tenancy and turn it to a tenancy in common. Herein joint tenants differ from tenants by entireties, who are seised per tout only, and not per my ; and of whom, accordingly, neither can prejudice the right by survivorship of the other to suc- ceed to the whole in severalty. 2 Bl. Com. 182. The following point is practically important. When two or more persons are joint tenants for their lives, whether by express limita- tion or by implication of law, and although the limitation be expressly to the survivor of them, then, on a severance of the joint tenancy, the share of each will afterwards be held for his own life only. Co. Litt. 191a; 2 Prest. Abst. 63. This is because the words in italics are mere surplusage, which express nothing which the law would not without them have implied. Hence it appears, observes Lord Coke. Ch. 5) ESTATES CREATED 687 that a severance of the joint tenancy of a lease for lives is beneficial to the lessor. In the limitation of a fee simple in joint tenancy, the words above placed in italics, instead of erring from mere superfluity, are highly pernicious. They turn the limitation to a joint freehold for lives, with a contingent remainder in fee simple to the survivor. Butl. n. 1 on Co. Litt. 191a. At the common law, one or more joint tenants could not be compelled by the other or others to make partition. Litt. sect. 290. Voluntary partition between them can be made only by deed. Co. Litt. 169a; Ibid. 187a. By the statutes 31 Hen. VIII, c. 1, and 32 Hen. VIII, c. Z2, the same right of partition as appertained at common law to co- parceners, is given both to joint tenants and to tenants in common.*^ A tenancy in common, though it is an ownership only of an undivid- ed share, is, for all practical purposes, a sole and several tenancy or ownership ; and each tenant in common stands, towards his own undivided share, in the same relation that, if he were sole owner of the whole, he would bear towards the whole. And accordingly, one tenant in common must convey his share to another, by some assurance which is proper to convey an undivided hereditament; and he cannot so convey by release. 2 Prest. Abst. 77. A title by tenancy in common may be claimed by prescription. Litt. sect. 310. This proves the severalty of the interest. Tenancy in common may arise in any of the following ways: (1) By express limitation. At the common law a gift or limitation contained in the premises of a deed, which standing by itself would have created a joint ten- ancy, might be turned to a tenancy in common by express words in the habendum ; such as, habendum the one moiety to the one and the other moiety to the other of them. Co. Litt. 183b. In modern assurances, which are commonly made under the Statute of Uses, tenancy in common is limited in the habendum, by declaring the use "as to one equal undivided moiety," or other fractional part, to one of the persons, with similar declarations in favour of the others respectively. (2) By the severance of a joint tenancy. Litt. sect. 292. (3) Similarly, by severance, through alienation, without partition, of the interests of coparceners. Litt. sect. 309. (4) By construction of law. 47 "It is trtie that, in this court TChanceryl jointenancies are not favoured, because they are a kind of estates that do not make provision for posterity, neither do I take it that courts of law do at this day favour theni ; althoiigli Lord Coke says that jointenancy is favoured because the law is against the division of tenures, but as tenures are many of tlieni taken away, and in a great measure abolished, that reason ceases, and courts of law incline the same way with this court." Eawes v. Hawes, 1 Wils. 1G5 (1747), per Lord Hard- wicke. See, also, Rigden v. N'allier, 2 Ves. 252, 258 (1751). But see Goddai'd. v. Ivewis, 25 T. L. R. 813 (1909). 688 DERIVATIVE TITLES (Part 2 (i) If a (contingent) remainder be limited to the heirs of two liv- ing persons, not being husband and wife, which remainder must therefore vest in interest at different times, the respective heirs will take as tenants in common. Windham's Case, 5 Rep. 7, at p. 8a, resolution 3 ; Roe v. Quartley, 1 T. R. 630. (ii) Under a limitation, in the form of an estate tail, to two persons neither married nor capable of lawful marriage, or to three or more persons, they will take in common. Windham's Case, ubi supra, res- olution 4. Other instances might be specified ; but in the present state of the law, they are not material in practice. There is nothing in the nature or origin of tenancy in common to import any necessity that the shares taken by the different ten- ants must be equal; because they hold by several, or different, ti- tles, not by a joint title. Litt. sect. 292. Their shares will, accord- ingly, be unequal, whenever the circumstances under which their titles arose were such as to institute any diversity between them. On an express limitation, unequal shares may be expressly limited; and then the shares will be unequal from the commencement of tlie tenancy. When the origin of a tenancy in common is by the sever- ance of a joint tenancy, or by a change in the title of coparceners, the shares will in their inception be equal ; but inequality may be sub- sequently introduced, by more than one of such equal shares becoming united in the same hands. Parceners, or coparceners, are two or more persons who together constitute a single heir; as the daughters, where there is no heir male, in respect to common law lands, and the sons, in respect to gavelkind lands. Litt. sect. 241, 265. As to gavelkind, see more at large Rob. Gav. 138 et seq. The same rule holds of sisters, aunts, and other groups of female kinsmen in the same degree, there being no prior heir male. Litt. sect. 242. But with respect to gavelkind lands, it is to be observed that, though by the custom of Kent the rule of coparcenary extends to collateral descents (Rob. Gav. 115), this is not necessarily true of gavelkind lands situated elsewhere; and a custom to that effect must be proved as a special custom (Co. Litt. 140a, b). The rule of representation holds good in descents in copar- cenary ; so that the issue of a person who. if living at the time of the descent, would have been a parcener, will take in coparcenary along with the other like persons. But such issue, as respects the amount of their share, take per stirpes and not per capita. Co. Litt. 164b. Parceners hold a position intermediate between joint tenants and tenants in common. Like joint tenants, they have among them only one single freehold, so long as no partition is made. Like tenants in common, they have among themselves no jus accrescendi; but upon the death of one parcener, a descent takes place of her aliquot share. And one parcener may at common law convey to another by Ch. 5) ESTATES CREATED 689 an assurance proper to convey a several estate, as a feoffment. Co. Litt. 164a. But such conveyance might also be made by release.. Co. Litt. 9b. A female who, having no sisters, stands in the position of heir, is of course styled the heir and not a parcener. Litt. sect. 242. One parcener was, even at the common law, entitled as against the others to a compulsory partition. Litt. sect. 241. The intrin- sic union between the shares of parceners is shown by the fact that, on a partition, nothing was held to pass from one parcener to another, and therefore a partition between them was no purchase to make an altera- tion in the course of descent. Voluntary partition might be made between parceners by mere parol agreement, or by drawing lots, or by reference to the award of ar- bitrators agreed upon beforehand by all the parties. Litt. sects. 243, 244, 246. The Court of Chancery from very early times exercised jurisdic- tion in respect to partition, when land holden of the King in capite descends upon parceners, one or more of them being under age. Fitzh. N. B. 256, F; Ibid. 260, B. This jurisdiction, being incident to the tenure, and a consequence only of the necessity for livery of the lands out of the King's hand, was practically abolished by 12 Car. II, c. 24. Suits for partition were also frequently instituted and en tertained under the court's equitable jurisdiction, when this had grown into general recognition; and under this jurisdiction a decree for partition was regarded as a matter of right, upon proof of title. 2 Com. Dig. 762. At the common law, upon the death of one parcener, her whole share descended to her issue. Tenancy by entireties, occurs, at the common law, when a gift or conveyance, which, if made to two strangers, would create a joint tenancy, is made to a husband and wife during the coverture. Litt. sect. 291, and Lord Coke's comment; 2 Prest. Abst. 39. See Co. Litt. 326a : "Where the husband and wife are jointly seised to them and their heires of an estate made during the coverture." The peculiarities of this kind of tenancy arise out of the identity which the common law imagines to exist between husband and wife. Litt. sect. 291. It is equally applicable to estates in fee simple, in fee tail, for the lives of the parties, and pur autre vie. 2 Prest. Abst. 39. It constitutes the most intimate union of ownership known to the law. A husband, being tenant by entireties of freeholds with his wife, cannot by any alienation bar her right by survivorship in any part. Co. Litt. 326a; Doe v. Parratt, 5 T. R. 652, at p. 654. They are accordingly said to hold per tout et non per my. 2 Bl. Com. 182. The same rule formerly applied also to forfeiture. Co. Litt. 187a. Aig.Prop. — 44 GOO DERivATiTB TITLES (Part 2 Husband and wife might be tenants by entireties, as between them- selves, of an undivided share; and might, as regards the owners of the other undivided shares, be either tenants in common or joint tenants. 3d Ed. by Sweet, pp. 364, 365, 366, 367, 368, 369, 370, 2,7Z, 375, 376, 2>77. MUSTAIN V. GARDNER. (Supreme Court of Illinois, 190P>. 203 III. 2S4, G7 N. E. 779.) BoCGS, J. The appellants are the heirs-at-law of one Ola I. l\Tus- tain, who departed this life on the Uth day of December, 1900. They filed a bill in equity in the circuit court of McDonough county against Sarah A. Gardner and Charles H. Gardner, her husband, for the partition of lots 3 and 4 in block 5, in Davis' addition to tlie village of Blandinsville. The title to the said lots was in one John T. JMustain at the time of his deadi. He left a will containing but two clauses, which are as follows : "First — It is my will that my funeral expenses and all of my just debts be fully paid. "Second — To my beloved daughter, Ola I., and my beloved wife, Sarah A. Mustain, jointly, I give, devise and bequeath lots three (3) and four (4), in block five (5), in Davis' second addition to the late town (now village) of Blandinsville, to them and to tlieir heirs and assigns forever." The chancellor construed the second clause of the will to devise the premises to the devisees therein named as joint tenants, and held that upon the death of the said Ola I. Mustain the title thereto inured as an entirety to the said Sarah A. Gardner, nee Mustain, as the sur- viving joint tenant, and sustained a demurrer to the bill and dismissed the case. The only question presented by this record is whether the devisees took as joint tenants or as tenants in common. Joint tenancies are looked upon with disfavor in this State. For this reason section 5 of the act concerning conveyances (1 Starr. & Cur. Stat. 1896, p. 916,) was adopted. The section reads as follows: "No estate in joint ten- ancy in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise or conveyance whatsoever, heretofore or hereafter made, other than to executors and trustees, unless the prem- ises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors and trustees, (unless otherwise expressly de- clared as aforesaid,) shall be deemed to be in tenancy in common." ** The devise does not expressly declare that the estate thereby created 48 "American statutes on the subject are of three classes: (a) Those revers- ins: the couunon law rule that an estate granted or devised to two or more per- sons is presumed to create a joint tenancy rather than a tenancy in common; (b) those destroying survivorship ; (c; those expressly abolishing joint tenancy." Ch. 5) ESTATES CREATED G91 and devised is an estate in joint tenancy and not an estate in common. But such a declaration is not indispensable. It is enough if it shall ap- pear from the phraseology of the devise that the testator understood the nature and incidents of the two estates, and the language employed be such as to clearly and explicitly show that the premises are not to pass in tenancy in common. Slater v. Gruger, 165 111. 329, 46 N. E. 235. In the absence of an affirmative declaration that the estate devised is in joint tenancy, an estate in tenancy in common will be devised, unless it clearly and explicitly appears from the language em- ployed that the testator understood the nature and incidents of the different estates and intended to create a joint tenancy. The quality of survivorship is the distinguishing feature of a joint tenancy, and where the grant or devise expressly imparts that quality to the estate, as did the deed under consideration in Slater v. Gruger, supra, it will be deemed effectual to create a joint tenancy, though tlie negation indicated by the statute be omitted. The devise under consideration does not, in terms, negative tlie pre- sumption which arises from the statute that it was the intention of the testator to create an estate in tenancy in common, and does not, in terms, declare it to be the intent to create a joint tenancy ; nor do we find anything in the language of tlie devise to indicate that the testa- tor understood the nature and incidents of the different estates, or either of them, and desired that an estate having the peculiar character- istic of survivorship should pass by the devise. The word "jointly," found in the devise, cannot be accepted as sufficient to show, clearly and explicitly, that the testator intended that the estate devised should possess the attribute of survivorship. Tenants in common or coparcen- ers hold the estate "jointly" until a severance is effected. Davis v. Smith, 4 Har. (Del.) 68; Billingslea v. Baldwin, 23 Ud. 115. It is entirely consistent with the use made by the testator of this word "jointly" to construe it as indicating only an intent to devise vlie estate to both devisees, and as it cannot be construed to declare, explicitly and clearly, the intent that the estate, as an entirety, should inure to the survivor of the devisees, it cannot avail to take the devise out of the operation of the statute. The statute must be given effect and the estate devised declared to be an estate in tenancy in common. The decree is reversed and the cause remanded to the circuit court, with directions to that court to overrule the demurrer to the bill and require the defendants to plead, answer or demur thereto. Reversed and remanded, with directions.*® Brf'wster on Conveyancing, § 151. The student should consult the statutes and decisions of his state. In Ohio the court early refused to recosinize joint tenancies as at common la^v. Sergeant v. Steinlierger. 2 Ohio, ^505, 15 Am. Dec. 553 (1S2()). In Connec- ticut the court refused to allow the right of survivorship. Whittlesey v. Ful- ler, 11 Coini. ,337 (1S36). 4 9 Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738, Ann. Cas. 1014C, 229 (1913) : Doran v. Beale. 106 Miss. 305, m South. fi47 (1013), aco. Case v. Owen. 139 Ind. 22, 38 N. E. 395, 47 Am. St. Rep. 253 (1894), contra. 692 DERIVATIVE TITLES (Part 2 THORNBURG v. WIGGINS. (Supreme Court of Indiana, 1893. 135 Ind. 178, 34 N. E. 999, 22 I* R. A. 42, 41 Am. St. Kep. 422.)' Daili^y, J. This was an action instituted in the court below, in two paragraphs, in the first of which appellees allege, in substance, that on and before December 15, 1884, one Lemuel Wiggins was tlie owner of a certain tract of real estate therein described, containing eighty acres; that on said day said Lemuel and his wife, Mary, ex- ecuted and delivered to the appellees a warranty deed, conveying to them the fee-simple of said real estate; that at the time of said con- veyance tlie appellees were, ever since have been, and now are, hus- band and wife; that said deed conveyed to the appellees the title to said real estate which they took and accepted, ever since have held, and now hold by entireties and not otherwise ; that appellees hold their title to said real estate by said deed of Lemuel Wiggins, and not other- wise; that on the 24th "day of April, 1877, Isaac R. Howard and Isaac N. Gaston, who were defendants below, recovered a judgment in the Randolph Circuit Court for the sum of $403.70 and costs, against one John T. Burroughs and the appellee, Daniel S. Wiggins, as partners, doing business under the firm name of Burroughs and Wiggins ; that on May 12, 1886, said Howard and Gaston caused an execution to be issued on said judgment and placed in the hands of the appellant, Thornburg, as sheriff of said county, and directed him to levy the same on said real estate, and that said sheriff did, on the 25th day of May, 1886, levy said execution on said real estate, or on the one-half interest in value thereof, taken as the property of said appellant, Daniel S. Wiggins, to satisfy said writ; tliat pursuant to the levy tliereof said sheriff proceeded by the direction of said Howard and Gaston to advertise said real estate for sale under said execution and levy to make said debt, and did, on the 8th day of June, advertise the same for sale on the 3d day of July, 1886, and will, on said day, sell the same, unless restrained and enjoined from so doing by the court; that said Daniel S. Wiggins has no interest in said premises, subject to sale thereon; that the appellees hold the title thereto as tenants by entireties, and not otherwise; that the sale of said tract on said execution would cast a cloud on the appellee's title," etc. The second paragraph is the same as the first, in substantial aver- ments, except that in this paragraph the appellees set out as a part thereof a copy of the deed under which they claim title to said real estate as such tenants by entireties. The granting clause of the deed is as follows : "This indenture wit- nessed!, that Lemuel Wiggins and Mary Wiggins, his wife of Ran- dolph county, in the State of Indiana, convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins, his wife, in joint tenancy," etc. Appellants separately and severally demurred to each paragraph of Ch. 5) ESTATES CREATED 693 the complaint, and their demurrers were overruled by the court, to which the appellants excepted, and, refusing to answer the complaint, judgment was rendered in favor of appellees on said demurrers. Appellants appeal, assigning as errors the overruling of said demur- rers, and urge that the appellees under the deed took as joint ten- ants, and hence that the husband's interest is subject to levy and sale upon execution. A joint tenancy is an estate held by two or more persons jointly, so that during the lives of all they are equally entitled to tlie enjoyment of the land, or its equivalent in rents and profits, but, upon the death of one his share vests in the survivor or survivors until there be but one survivor, when the estate becomes one in sever- alty in him and descends to his heirs upon his death. It must always arise by purchase, and can not be created by descent. Such estates may be created in fee, for life, for years, or even in remainder. But the estate held by each tenant must be alike. Joint tenancy may be de- stroyed by anything which destroys the unity of title. Our law aims to prevent their creation and they can not arise, except by the instru- ment providing for such tenancy. Griffin v. Lynch, 16 Ind. 396. The 9th Am. and Eng. Ency. of Law, 850, says: "Husband and wife are, at common law, one person, so that when realty or personalty vests in them both equally * * * they take as one person, they take but one estate as a corporation would take. In the case of realty, they are seized not per my et per tout, as joint tenants are, but simply per tout; both are seized of the whole, and each being seized of the entirety, they are called tenants by the entirety, and the estate is an estate by entireties. * * * Estates by entireties may be created by will, by instrument of gift or purchase, and even by inheritance. Each tenant is seized of the whole, the estate is inseverable — can not be partitioned ; neither husband nor wife can alone affect the inher- itance, the survivor's right to the whole." This tenancy has been spoken of as "that peculiar estate which arises upon the Conveyance of lands to two persons who are, at the time, husband and wife, commonly called estates by entirety." As to the general features of estates by entireties there is little room for con- troversy, and there is none between counsel. Our statute re-enacts the common law. Arnold v. Arnold, 30 Ind. 305 ; Davis v. Clark, 26 Ind. 424, 89 Am. Dec. 47L Strictly speaking, estates by entireties are not joint tenancies. Chan- dler V. Cheney, 37 Ind. 391 ; Hulett v. Inlow, 57 Ind. 412, 26 Am. Rep. 64; the husband and wife being seized not of moieties, but both seized of the entirety per tout and not per my. Jones v. Chandler, 40 Ind. 588; Davis v. Clark, supra; Arnold v. Arnold, supra. It has been said by this court in some of the earlier decisions that no particular words are necessary. A conveyance which would make two persons joint tenants will make a husband and wife tenants by the entirety. It is not even necessary that they be described as such or their marital relation referred to. Morrison v. Seybold, 92 Ind. 298; G94 DERIVATIVE TITLES (Part 2 Hadlock v. Gray, 104 Ind. 596, 4 N. E. 167; Dodge v. Kinzy, 101 Ind. 102; Hulett v. Inlow, supra; Chandler v. Cheney, supra. But the court has said that the general rule may be defeated by the expression of conditions, limitations and stipulations, in the convey- ance, which clearly indicate the creation of a different estate. Hadlock V. Gray, supra; Edwards v. Beall, 75 Ind. 401. Having its origin in the fiction or common law unity of husband and wife, the courts of some States have held that married women's acts, extending tlieir rights, destroyed estates by entirety, but this court holds otherwise. Carver v. Smith, 90 Ind. 222. 46 Am. Rep. 210.^° And the greater weight of authority is in its favor. Our decisions hold that neither, alone, can alienate such estate. Jones v. Chandler, supra ; Morrison v. Seybold, supra. There can be no partition. Chandler v. Cheney, supra. A mortgage executed by the husband alone is void. Jones v. Chan- dler, supra. And the same is true of a mortgage executed by both to secure a debt of the husband. Dodge v. Kinzy, supra. And the wife can not validate it by agreement with the purchaser to indemnify in case of loss arising on account of it. State ex rel., v. Kennett, 114 Ind. 160, 16 N. E. 173. A judgment against one of them is no lien upon it. Barren Creek Ditching Co. v. Beck, 99 Ind. 247; McConnell v. Martin, 52 Ind. 434; Orthwein v. Thomas (111.) 13 N. E. 564. Upon the death of one, tlie survivor takes the whole in fee. Arnold v, Arnold, supra. The deceased leaves no estate to pay debts. Simpson v. Pearson, Admr., 31 Ind. 1, 99 Am. Dec. 577. And, during their joint lives, there can be no sale of any part on execution against either. Carver v. Smith, supra ; Dodge v. Kinzy, supra ; Hulett v. Inlow, supra ; Chandler v. Cheney, supra ; Davis v. Clark, supra; McConnell v. Martin, supra; Cox's Adm'i* v. Wood, 20 Ind. 54. The statutes extending the rights of married women have no effect whatever upon estates by entirety. Carver v. Smith, supra. Such estate is, in no sense, either the husband's or the wife's sep- arate property. The husband may make a valid conveyance of his interest to his wife, because it is with her consent. Enyeart v. Kepler, 118 Ind. 34. 5 Koulston V. Hall, 66 Ark. 305, 50 S. W. 600, 74 Am. St. Rop. 97 (1S99) ; Hiles V. Fisher, 144 N. Y. 30G, .30 X. E. .337, .30 Ia R. A. .30.^, 43 Am. St. Rep. 762 (1895) ; BramberiT's Estate, 156 Pa. 628, 27 Atl. 405. 22 I.. R. A. 594. 36 Aiu. St. Rep. 64 (1893), aec. W'ilson v. Wilson. 43 Minn. .398, 45 N. W. 710 (1890), dictuui ; Swan v. Walden, 156 Cal. 195, 103 I'ac. 931, 134 Am. St. Rep. 118, 20 Ann. Cas. 194 (1909). dictum, contra. In some states, irrespective of statute, the courts hare held there was no tenancy by the entirety. Whittlesev v. Fuller. 11 Conn. .337 (1836); Kerner v. McDonald, 60 Neb. 663, 84 N. W. 92. 83 Am. St. Rep. 550 (1900); Farmers' & Merchauts' Nat. Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439 (1SS7). Ch. 5) ESTATES CREATED 095 The rule that husband and wife take, by entireties was enacted in this territory in 1807, nine years before Indiana was vested with statehood, and has been repeated in each succeeding revision of our statutes. It has tlius been the law of real property, with us, for eighty- six years. Section 2922, R. S. 1881, provides that "all conveyances and devises of lands, or of any interest therein, made to two or more persons, ex- cept as provided in the next following section, shall be construed to create estates in common and not in joint tenancy, unless it shall be expressed therein that the grantees or devisees shall hold the same in joint tenancy and to the survivor of them, or it shall manifestly ap- pear, from the tenor of the instrument, that it was intended to create an estate in joint tenancy." , Section 2923 provides that the preceding section shall not apply to conveyances made to husband and wife.*^^ Under a statute of the State of Michigan, similar in all its essential qualities to our own, the court held that "wh^re lands are conveyed, in fee, to husband and wife, they do not take as tenants in common." Fisher v. Provin, 25 Mich. 347. They take by entireties; whatever would defeat the title of one. would defeat the title of the other. Manwaring v. Powell, 40 Mich. 371. ^ They hold neither as tenants in common nor as ordinary joint ten- ants. The survivor takes the whole. During the lives of both, neithei has an absolute inheritable interest, neither can be said to own an un- divided half, ^tna Ins. Co. v. Resh, 40 Mich. 241 ; Allen v. Allen, 47 Mich. 74, 10 N. W. 113. While the rule of entireties was predicated upon a fiction, the legis- lative intent, in this State, has always been to preserve this estate, and has continued the peculiar statute for this purpose. Estates by en- tireties have been preserved as between husband and wife, although joint tenancies between unmarried persons have been abolished, so as to provide a mode by which a safe and suitable provision could be made for married women. Carver v. Smith, supra. "Where a rule of property has existed for seventy years and is sus- tained by a strong and uniform line of judicial decisions, there is but little room for the court to exercise its judgment on the reasons on which the rule was founded. Such a rule of property will be over- 51 In Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266 (1S7S), a statute pro- viding that no instrument of conveyance shall be construed to create a joint tenancy unless it is e.xpressly provided that the property shall t-e so held, was not considered to affect the creation of tenancies by the entireties, for they are not joint tenancies. But where the statute provided that "conveyances to two or more in their own right create a tenancy in connnon, unless a contrary interest is expressed" it was held that a conveyance to two who were husband and wife created a tenancy in common. Bader v. Dyer, 106 Iowa, 715, 77 N. W. 469, 68 Am. St. Rep. 332 (1898). 696 DERIVATIVE TITLES (Part 2 ruled only for the most cogent reasons and upon the strongest convic- tions of its incorrectness. It is evident that the Legislature of 1881 did not intend to repeal the statutes establishing tenancies by entire- ties. They simply intended to enlarge, in some particulars, the sep- arate power of the wife, which existed already under the acts of 1852 and the year following. * * * 'j^ ^j^ ^ot abolish estates by en- tireties as between husband and wife, but provided that when a joint deed was made to husband and wife, they should hold by entireties, and not as joint tenants or tenants in common.' " Carver v. Smith, supra. In Chandler v. Cheney, supra, the court says : "It was a well settled rule at common law, that the same form of words, which, if the gran- tees were unmarried, would have constituted them joint tenants, will, they being husband and wife, make them tenants by entirety. The rule has been changed by our. statute above quoted." The whole trend of authorities, however, is in the direction of pre- serving such tenancies, where the grantees sustain the relation of hus- band and wife, unless from the language employed in the deed it is manifest that a different purpose was intended. Where a contrary intention is clearly expressed in the deed, a dif- ferent rule obtains. "A husband and wife may take real estate as joint tenants or ten- ants in common, if the instrument creating the title use apt words for the purpose." 1 Preston on Estates, 132; 2 Blackstone's Com., Shars- wood's note; 4 Kent's Com. side page 363; 1 Bishop on Married Women ; Freeman on Co-Tenancy, section 12 ; Fladung v. Rose, 58 Md. 13, 24. "And in case of devise and conveyances to husband and wife to- gether, though it has been said that they can take only as tenants by entireties, the prevailing rule is that, if the instrument expressly so provides, they may take as joint tenants or tenants in common." Stew- art on Husband and Wife, sections 307-310;. Tiedeman on Real Prop- erty, section 244. "And as by common law it was competent to make husband and wife tenants in common by proper words in the deed or devise," etc. Hoffman v. Stigers, 28 Iowa, 310; Brown v. Brown, 133 Ind. 476, 32 N. E. 1128, 33 N. E. 615. So it seems that husband and wife may, by express words, be made tenants in common by gift to them during coverture." McDermott v. French, 15 N. J. Eq. 80. In Hadlock v. Gray, 104 Ind. 596, 599, 4 N. E. 167, 168, a convey- ance had been made to Isaac Cannon and Mary Cannon, who were husband and wife, during their natural lives, and the court says : "The language employed in the deed under examination plainly de- clares that Isaac and Mary Cannon are not to take as tenants by en- tirety. This result would follow from the provisions destroying the Ch. 5) ESTATES CREATED 697 survivorship, for this is the grand and essential characteristic of such a tenancy. * * * The whqle force of the language employed is opposed to the theory that the deed creates an estate in fee in the hus- band and wife." The court further says : "It is true tliat where real property is con- veyed to husband and wife jointly and there are no limiting words in the deed, they will take the estate as tenants in entirety. * * * But while the general rule is as we have stated it, there may be con- ditions, limitations, and stipulations in the deed conveying the prop- erty, which will defeat the operation of the rule. The denial of this proposition involves the affirmation of tlie proposition that a grantor is powerless to limit or define the estate which he grants, and this would conflict with the fundamental principle that a grantor may for him- self, determine what estate he will grant. To deny this right would be to deny to parties tlie right to make their own contracts. It seems quite clear, upon principle, that a grantor and his grantees may limit and define the estate granted by the one and accepted by the other, although the grantees be husband and wife." The court then adopts the language of Washburn, supra, and Tiede- man, supra. In Edwards v. Beall, supra, the court hold that when lands are granted husband and wife, as tenants in common, they will hold by moieties, as other distinct and individual persons would do. If, as contended by appellees, the rule prevail that the same words which, if the grantees were unmarried, would have constituted them joint tenants, will, they being husband and wife, make them tenants by entireties, then it would result as a logical conclusion that husband and wife cannot be joint tenants. Because, by this rule, words, how- ever apt or appropriate to create a joint tenancy, would, in a convey- ance to husband and wife, result in an estate by entireties — joint ten- ancy would be superseded or put in abeyance by the estate created by law — tenancy by entirety, r The result of such reasoning would be to destroy the contractual power of the parties where this relationship between the grantees is shown to exist. Any other process of reasoning would carry the rule too far, and we must hold it modified to the extent here indicated. Husband and wife, notwithstanding tenancies by entirety exist as they did under the common law, may take and hold lands for life, in joint tenancy, or in common, if appropriate language be expressed in the deed or will creating it, and we know of no more apt terms to create a joint tenancy in the grantees in this estate than the expression "con- vey and warrant to Daniel S. Wiggins and Laura Bejle Wiggins in joint tenancy." These words appear in the granting clause of the deed conveying the land in question, and the estate accepted and held by the grantees is thereby limited, and they hold not by entireties but in joint ten- 698 DERIVATIVE TITLES (Part 2 ancy. A joint tenant's interest in property is subject to execution. Freeman on Ex. 125. Judgment reversed, with instructions to the circuit court to sustain tlie demurrer to each paragraph of the complaint.^^ PEGG V. PEGG. (Supreme Court of Michigan, 1011. 1G5 INIich. 228, 130 N. W. 617, 33 L. It. A. [N. S.] 1G6, Ann. Cas. 1912C, 925.) Bird, J. The bill of complaint in this cause calls for the construc- tion of a deed made by Davis Pegg to Mary C. Pegg, the complain- ant. Davis Pegg was the husband of complainant, and in the year 1897 he conveyed to her, by warranty deed in the usual form, an un- divided one-half interest in and to the following described premises : ■''The west half (W. i/^) of the southeast quarter (S. E. 14) of sec- tion three (3), and the west half (W. 1/0) of the northeast quarter (N. E. ^/4) of section ten (10), in Grand Traverse county." In the deed, between the granting and the habendum clauses, is in- serted the following clause : "The objection and purpose of this deed is to convey to said sec- ond party such an interest in said land that the parties hereto will have an estate in entirety, and that the same shall survive and vest in the survivor as a full and complete estate." The deed was recorded in 1901, and in 1902 Davis Pegg died. Complainant is in possession of the premises, and claims title thereto on the theory that she and her husband owned the premises as ten- ants by entirety, and, she being the survivor, she takes the whole. It is claimed by the defendants, who are brothers and children of de- ceased brothers of Davis Pegg, that Davis Pegg and complainant were the owners of the premises as tenants in common, and that upon his decease an undivided one-half of tlte premises descended to them. The defendants demurred to the bill, and the trial court made an or- der overruling it, arid they have appealed from that order. Davis Pegg conveyed an undivided one-half interest in said prem- ises to complainant. He retained an undivided one-half interest there- in. After this was done they had distinct titles, and were therefore tenants in common. The title remained that way until Davis Pegg died. The question is, then: What became of his undivided half? Ordinarily it would descend to his heirs, the defendants ; and it did 5 2 See Hetzel v. Lincoln, 216 Pa. 60, 64 Atl. 866 (1906), Tvhere the convey- ance was to a man and woman, by name, "jointly," the grantees being in fact husband and wife. In iMoriis v. McCarty, 158 Mass. 11, 32 N. E. 938 (1S93), lands were conveyed to A. and B., wife of A., "as tenants by the entirety aud not as tenants in com- mon." A. and B. were not in fact husband and wife. The case arose upon a writ of entry by the heirs of B. against A. to recover an undivided one-half of the premises. Ch. 5) ESTATES CREATED 699 SO descend, unless the clause wliich was inserted carried it in a dif- ferent direction. Complainant contends that it did not so descend, because she and her husband owned the premises as tenants by the entirety, and were made such by said deed, and that now, as survivor of her husband, she is entitled to the whole of said premises. In order to own the whole, as survivor, she would have to be seised of the whole before his death. Whatever vested in her as survivor must have been owned by both her and her husband before his death, and each must have been seised of the whole. As neither one was seised of the whole, but both held by distinct titles, they could not have been tenants by the entirety. Neither were they tenants by entirety of the undivided half conveyed to her, because Davis Pegg reserved no interest in the undivided half he conveyed to complainant. The deed as a. whole cannot be construed as creating a tenancy by entirety, because the law was not followed in creating it. At the common law, tlie unities of time, title, interest, and possession had to be observed in creating such an estate. Blackstone's Commentaries, book 2, p. 182; 1 Washburn on Real Property (6th Ed.) p. 529. See suggestion in Bassett v. Budlong, 77 Mich. 338, 43 N. W. 984, 18 Am. St. Rep. 404. The common law has remained unchanged in this respect and is now in force. In the attempt to create an estate by entirety, in the case under consideration, neither the unity of time nor title was ob- served. The estate was not created by one and the same act, neither did it. vest in them at one and the same time. If the clause inserted can be said to be a part of the habendum of the deed, as is argued, then that part of the habendum must fail, on the ground that it seeks to en- large an estate in common, which is granted, into an estate of entirety, without complying with the rules of law for the creation of such an estate. By reason of these considerations,- the deed must be read as though the clause had been omitted. The deed created a tenancy in common between complainant and her husband, and upon his decease his undivided one-half of the premises descended to his heirs. The order of the trial court, overruling defendants' demurrer, will be vacated and set aside, and an order entered sustaining the demur- rer. OstrandBr, C. J., and Hooker, Moore, and McAlvay, JJ., con- curred in the result."^' 33 William Wright, the owripr of prpmises, executed a deed thereof contain- ing the following: "Between William Wriglit, of the township of North Fhiins in Ionia connty and state of Michigan, of the first part, and William Wright and Elizabeth Wright [his wife] jointly, the survivor to have full ownership, of the same place, of the second part." William died, and later Elizabeth. "VMiat were the rights of the heirs of each? Wright v. Knaiip, l.s;{ Mich. 656, 150 N. W. 315 (101.5). See. also, Michigan State Hank of l::aton Rapids v. Kern dMich.) 155 N. W. 502 (1015) ; lu re Klatzl's Estate (N. Y.) 110 N. E. ISl (1915/. 700 DERIVATIVE TITLES (Part 2 VAN HORNE v. FONDA. (Court of Chancery of New York, 1821. 5 Johns. Ch. 388.) The ChanceIllor.''* The bill seeks to call the defendant to an ac- count, as executor of the estate of Jellis Fonda, deceased, and, also, as executor of the estate of Henry V. Fonda, deceased, and, generally, to make him account as trustee, acting- for and on behalf of the plain- tiffs, in the management and disposition of the estate, real and per- sonal, of Henry V. Fonda. The defendant admits himself to have been the acting executor of the estate of his father, Jellis F., and is ready to account for the per- sonal estate, and the rents and profits of the real estate which he may have received. The great contest in the case is as to the character in which he acted, and the responsibilities which he has incurred, in re- spect to the estate, real and personal, of his brother Henry V. p * * * 2. The bill charges that the defendant received, in March, 1799, from the government of this state $6,500, as a compensation for the extinguishment of the right derived from Jellis F. to 2,000 acres of land in the Royal Grant, and that the plaintiffs are entitled to a moiety of that sum, with interest. The defendant adm.its that the sum re- ceived was $6,250, but he claims title to the whole of it ; and contends, in the first place, that his father, Jellis F., was only entitled, in his life- time, to 1,000 acres, inasmuch as Brant Johnson, who sold him the 2,000 acres, owned only a moiety of it, and that the other moiety be- longed to William Johnson, a brother of B. Johnson. He contends, in the second place, that his brother Henry, by his deed of the 3d of May, 1794, conveyed to him in fee, and absolutely, without any reser- vation or trust, his* interest in the 1,000 acres, for the consideration of £100., and which consideration was paid by a deed from the defend- ant to Henry, of the date of the 24th of April, 1794, of two lots in the Royal Grant, and containing the like consideration. It is to be observed, as we proceed, that the defendant and his broth- er Henry were joint and equal residuary devisees of their father, JelHs Fonda. There is reason to believe that the deed of the 24th of April, was not given as the consideration of the deed of the 3d of May following. The want of concurrence in dates raises that presumption, especially as that want of concurrence is left without any explanation. In the next place, it is in proof, by the testimony of Simon Veeder, who took the acknowledgment of the deed of the 3d of May, and delivered the deed over to the defendant on the same day^ that Henry observed, at the time, that the deed to Jellis F., his father, was deficient. The certificate of acknowledgment bears date the 31st day of May, 1794, but 6* The statement of facts is omitted. Portions of the opinion also are omit- ted. Ch. 5) ESTATES CREATED 701 the certificate of acknowledgment of the prior deed of the 24th of April, bears date the 2d day of August, 1794, and both the acknowl- edgments were made before the same judge. The defendant was pres- ent when the acknowledgment of the deed of the 3d of May was taken ; and when the deed was handed to him, he observed that the considera- tion mentioned in tlie deed was not the value of the property, but he took the deed in order to save something for the children of his brother, as his brother was pretty much involved in trouble. These observations of tlie parties, made at the time of the execution of the deed, are evidence that the deed was not taken as an absolute purchase of the right of Henry to the 1,000 acres; and they are evi- dence that it was taken in trust, and, probably, with a view to facihtate a compromise with the state, according to the charge in the bill. The testimony of Evert Yates and James Lansing shows that the deed of the 3d of May was not considered by the defendant as an absolute purchase of the right of Henry, and paid for, by the prior deed of the 24tli of April. When the executors of Henry met, soon after his death, the defendant told John Fonda, who asserted Henry's interest in the money received upon the compromise, that Henry had no such interest, for his father's title was incomplete, and he had since pur- chased up the Indian title of William Johnson, and considered it a spec- ulation of his own. Here was no suggestion that he had actually bought in the right of Henry, a reply that would naturally have sug- gested itself, if such had been the fact. It is also admitted, by the answer, that the title of Jellis F. to the 2,000 acres, had been conveyed by him, in his lifetime, to Abraham G. Lansing; and that as the title proved partly defective, the defendant and his brother Henry, as the representatives of their father, had conveyed to Lansing, in 1793, other lands to the amount of 2,650 acres, derived to them from their father, in lieu of the 2,000 acres ; and that Lansing had then released his right to the 2,000 acres, to the defendant and Henry. The 2,000 acres were thus received back into the funds of the estate, as a substitute for the 2,650 acres which had been transferred ; and tlie two brothers became equally entitled, as tenants in common and residuary devisees of Jellis F., to all the right and interest, in law and equity, of their ancestor to the 2,000 acres. The defendant, afterwards, on the 29th of May, 1795, purchased of Moses Johnson, the heir of William Johnson, for $600, his right and title to 1,000 acres, being part and parcel of 2,000 acres originally pur- chased by Jellis F. from Brant Johnson. The question, then, is, wheth- er the defendant did not make that purchase for the joint benefit of himself and his brother Henry. If the deed of the 3d May, 1794, was given to the defendant, in trust for the purpose of facilitating the ac- quisition of a good title, then the purchase from Moses Johnson was in trust for their joint benefit. The defendant has not interposed and pleaded the statute of frauds against setting up a trust by parol, in opposition to the deed of the 3d of May, 1794; and we are left at lib- 702 DERIVATIVE TITLES (Pait 2 erty to judge of the truth and effect of the parol proof. I am strongly inclined to believe, that the deed was taken in trust, and that the sub- sequent purchase from iMoses Johnson was made in trust, and that Henry was equally interested in the settlement made with the state, in March, 1799; and that his representatives are entitled to a moiety of the payment received from the state, (which payment amounted to $6,500,) after allowing to the defendant, the payment he made to IMoses J., and a just indemnity for his expenses in procuring the satis- faction from the state. In some cases, says Littleton, (sec. 307,) a release to one joint tenant shall aid the joint tenant to whom it was not made, as well as him to whom it was made. I will not say, however, that one tenant in com- mon may not, in any case, purchase in an outstanding title for his ex- clusive benefit. But when two devisees are in possession, under an imperfect title, derived from their common ancestor, there would seem, naturally and equitably, to arise an obligation between them, resulting from their joint claim and community of interests, that one of them should not affect the claim, to the prejudice of the other. It is like an expense laid out upon a common subject, by one of the owners, in which case all are entitled to the common benefit, on bearing a due proportion of the expense. It is not consistent with good faith, nor with the duty which the connection of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself, and thus undermine and oust his com- panion. It would be repugnant to a sense of refined and accurate jus- tice. It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties, as joint devisees, created. Com- munity of interest produces a community of duty, and there is no real difference, on the ground of policy and justice, whether one co-tenant buys up an outstanding incumbrance, or an adverse title, to disseise and expel his co-tenant. It cannot be tolerated, when applied to a common subject, in which the parties had equal concern, and which created a mutual obligation, to deal candidly and benevolently with each other, and to cause no harm to their joint interest. I have no doubt, therefore, that in a case like the present, and assuming what the evidence warrants us to assume, that the deed of May, 1794, was taken by the defendant for trust purposes, that the purchase from Moses Johnson ought, in equity, to enure for the common benefit, sub- ject to an equal contribution to the expense."" * * * 55 See Matthews v. Bliss, 22 Pick. (Mass.) 48 (1839) ; Kennedy v, De Trafford, [1897J A. C. ISO, where under a power of sale in a mortgage the mortgaged premises were sold to one of the two tenants in common who had mortgaged the premises. Lord Hers&hell said: "But then it is said that the mere fact that Kennedy was co-owner with Dodson of this property creates such a rela- tionship between them that the one co-owner could not take this property and hold it for himself, but that the other co-owner is entitled on equitable grounds Ch. 5} ' ESTATES CREATED 703 ELSTON V. PIGGOTT. (Supreme Court of Indiana, 1883. 94 Ind. 14.) Elliott, J.^® * * * 'pj^g question which next demands con- sideration may be tlius stated : Is one who brings a partition suit, holding, at the time, a deed from an assignee in bankruptcy conveying two-thirds of the land, and holding, also, a certificate issued upon a sale on a decree of foreclosure embracing all the land, estopped by a decree rendered in the partition suit, awarding to him two-thirds of the land and to the defendant one-third from asserting the title subse- quently acquired by a deed excepted pursuant to the certificate of sale. The right conferred on the holder of the certificate of sale was not a title to the land ; it merely invested him with a lien on the land, which might ripen into a title by the failure of the debtors to redeem the land within tlie time prescribed by law. State ex rel. v. Sherill, 34 Ind. ^7 ; Davis V. Langsdale, 41 Ind. 399; Hasselman v. Lowe, 70 Ind. 414; Felton V. Smith, 84 Ind. 485 ; Wilhite v. Hamrick, 92 Ind. 594. When the partition suit was commenced, the plaintiff in that suit was not the owner of all the land, but was the owner of two-thirds, which was properly set oflf to him. The title which he acquired to all the land was a subsequent one. It is settled that a decree in partition operates only upon the title held at the time the suit was instituted, and has, ordinarily, no effect upon a title subsequently acquired. Miller v. Noble, 86 Ind. ^27 ; Crane V. Kimmer, 77 Ind. 215; Avery v. Akins, 74 Ind. 283, see page 290; Arnold v. Cutterbaugh, 92 Ind. 403. A decree in partition does not create title ; it merely severs possession and awards to each tenant his share in severalty. Kenney v. Phillipy, 91 Ind. 511; Miller v. Noble, supra ; Utterback v. Terhune, 75 Ind. 363 ; Teter v. Clayton, 71 Ind. 237; Avery v. Akins, supra. It results from these settled rules that the decree in partition. does not estop the appellant from asserting tlie title acquired under the deed issued on the decree of foreclosure. The title which a plaintiff is ordinarily required to set forth in the to have it declared that the benefit of one linlf of that purchase should be his. My Lords, DO authority has been cited in support of such a proposition. * * * Tlie only authority, if it can be so called, which has been cited is the case be- fore Chancellor Ivent [Van Home v. Fonda. 5 Johns. Ch. (N. Y.) .388 (1821)]: but he connuences his ol'servatiotis by saying tliat he is not soinp to lay down a general rule which would be applicable to such a case as this. lie deals with tbe jiarticular case, the circunisrances of which were peculiar and of iuiinense complication, and he certainly does not lay down any rule or doctrine of law which supports tbe argument which has been addressed to your Lordships. It is not necessary to enter into the details of that c:ise. It is enough to say that, even if it is to be taken as enunciating a rule of law which would be as ap- plicable in this country as in Amenca, it does not enunciate any rule of law which would be sufficient for the api)ellant in this case." Cf. Holmes v. Holmes, 129 Mich. 412, 89 N. \V. 47, 95 Am. St. Rep. 444 (1902). 5 6 Parts of the opinion are omitted. 704 DERIVATIVE TITLES (Part 2 complaint in partition is such as will enable him to secure the decree of partition demanded in his complaint. It is not incumbent upon him to make an issue settling all questions of title, or all rights of lien holders, although it is proper for him to do so. If the appellees had desired to settle all questions in the partition suit, they might, doubt- less, have done so, by tendering proper issues ; but they chose to go to trial on the single question of the right of Elston to a decree of par- tition, awarding him two-thirds of the land, and tendered no issue as to his right as the holder of the certificate, issued upon the sale made on the decree of foreclosure. Nothing more was embraced in the is- sues in the partition suit than Elston's right to the two-thirds of the land, and this was all that was adjudicated. It was, indeed, all that could have been properly adjudicated under the issues, for only a claim to two-tliirds of the land was then asserted. The application of these legal principles secures a just result in the present instance. Mrs. Piggott had joined her husband in execut- ing the mortgage sued on in the United States court, was a party to the suit to foreclose that mortgage, and was, of course, chargeable with knowledge that the decree covered all the land, that it was un- satisfied when the partition suit was brought, and that the time for redemption had not then expired. She could not, therefore, have any reason for inferring that Elston was asserting a title founded on the decree, since that would have been a title to the whole, and not merely two-thirds, of the land. She had full knowledge of the extent of the title he asserted, and must have known that it embraced only her hus- band's interest, and was founded on the sale made by the assignee of her husband, under the order of the Federal court in the bankruptcy proceedings. The question which is next encountered may be thus stated : Does the fact that the appellant, at the time he acquired the certificate of sale issued on the decree of foreclosure rendered on the mortgage executed by Albert Piggott, the husband, and Martha J. Piggott, the wife, held a conveyance for two-thirds of the land from the assignee in bankruptcy of Albert, the husband, executed after the sale on the decree, preclude him, the appellant, from asserting against Martha J., the wife, the title founded on the deed executed upon the fore- closure sale? Appellee's counsel contend that the appellant is precluded from as- serting title under the foreclosure sale, because he was, as they affirm, a tenant in common with Martha J. Piggott, and could not, therefore, buy in an outstanding lien and build a title on it. The general rule unquestionably is, that one tenant in common can not, by purchasing an outstanding lien, acquire a title which will evict his co-tenant. This rule, however, is subject to many exceptions and obtains only where the relation of tenants in common exists in strictness, and where the relation is such as to require mutual trust and confidence. It is im- possible to perceive how one who buys at a sale made by an assignee Ch. 5) ESTATES CREATED 705 in bankruptcy of the husband's interest becomes charged in such a case as that embraced in our general question, with duties of trust and confi- dence to the wife of the bankrupt. The title is not a common one ; the interests are not reciprocal, and there is no fiduciary relationship created. The title is secured by virtue of a judicial sale, and not by the same instrument, nor from the same source, as that from which the wife's claim is derived. There is, we repeat, nothing in such a case to create relations of trust and confidence, and, therefore, the reason of the rule applicable to ordinary cases fails, and the time-hon- ored doctrine is, that where the reason of the rule ceases so does the rule itself. An examination of the cases will show that we are right in stating that the reason of the rule is that the relationship is one im- posing trust and confidence and requiring the tenants not to assume positions of hostility. Mr. Freeman says : "If their interests accrue at different times, and under different in- struments, and neither has superior means of information respecting* the state of the title, then either, unless he employs his cotenancy to secure an advantage, may acquire and assert a superior outstanding title, especially where the cotenants are not in joint possession of the premises." Freeman, Cotenancy & Part. § 155; Roberts v. Thorn, 25 Tex. 728, 78 Am. Dec. 552 ; Rippetoe v. Dwyer, 49 Tex. 498 ; King v. Rowan, 10 Heisk. (Tenn.) 675 ; Matthews v. Bliss, 22 Pick. (Mass.) 48;. Frentz v. Klotsch, 28 Wis. 312; Reinboth v. Zerbe, etc., Co., 29 Pa. 139; Brittin v. Handy, 20 Ark. 381, 7Z Am. Dec. 497. It is not to be forgotten that the wife was bound both by the decree and the mortgage, and the case is, therefore, altogether different from one where the lien is created by the act of the law, as for taxes, or where the encumbrance was created by a former owner through whom both parties claim title. In such cases the burden is a common one. In the present case the burden rests alone on one of the tenants. This is so by virtue of her own act creating it, and by force of the decree directing the execution of the lien by sale of the property. Here, then, we find an essential element not found in cases to which the general rule is ordinarily applied. The wife, as against the mortgagee, owned a mere equity of redemp- tion. Kissel v. Eaton, 64 Ind. 248; Haggerty v. Byrne, 75 Ind. 499; Eiceman v. Finch, 79 Ind. 511; Baker v. McCune, 82 Ind. 585; Ver- million V. Nelson, 87 Ind. 194. This equity of redemption had been barred by the decree of foreclosure, so that nothing remained except the statutory right of redemption. Eiceman v. Finch, supra. This right was one to be exercised pursuant to law, and the failure to ex- ercise it made the title absolute upon the execution of the sheriff's deed. Something more than a mere mortgage lien was, therefore, bought by the appellant, and he did not buy it by virtue of his position as a cotenant, nor did his cotenancy give him superior means of knowl- edge. No one could have had greater knowledge than Mrs. Piggott, Aig.Peop. — 45 706 DERIVATIVE TITLES (Part 2 by whom the mortgage was executed, and against whom the decree of foreclosure was rendered. Here, again, emerges an element pushing the case outside of the general rule. There was, as already intimated, no obligation resting on the ap- pellant to discharge the lien, for that obligation rested on the mortga- gors. This obligation did not arise from the relationship of the par- ties, because the burden was not a common one, nor was there trust or confidence. There was, therefore, nothing which, in law or equity, imposed a duty on the appellant to pay off the mortgage and then sue for contribution. As no duty rested on him, and as he did not avail himself of knowledge or opportunity supplied by his cotenancy, he was as free to buy as anybody else. The failure to redeem ensured the loss of the property to Mrs. Piggott, and whether the judgment plain- tiff or his assignee, the appellant, gets the title, can really make no dif- ference to her, for the loss is in either case precisely the same. Her Opportunities for knowledge and for action were just the same against the appellant as against his assignor; she had just as much right to re- deem from the one as from the other. We are well satisfied that this case is not within the general rule forbidding one tenant in common from buying an outstanding lien and building title upon it, and that the case assumed in our question is the one made by the record. ^^ * * * HURLEY v. HURLEY. (Supreme Judicial Court of Massncliusetts, 1SS9. 148 Mass. 444, 19 N. E. 545, 2 L. R. A. 172.) Holmes, J. This is a petition for partition. In 1870 the petitioner, Thomas Hurley, inherited one undivided half of the premises from his mother, subject to his father's tenancy by the curtesy. On No- vember 14, 1879, the father died, and the other half, which had be- longed to him under a separate conveyance, descended to the peti- tioner and the respondents, two sons of the father by a later wife. On September 8, 1879, before the father's death, the premises were sold for taxes to one Capen. On December 6, 1880, the respondent Daniel T. Hurley paid Capen the amount necessary to redeem the premises, and took a release from him. At that time the respond- 5 7 Bracken v. Cooper, SO 111. 221 (1875). contra. In Kirkpatrick v. Mathiot, 4 Watts & S. (Pa.) 251 (1S42), one tenant in com- mon purchased the land from the county in which title had been vested by reason of failure to pay taxes, after the time allowed for redemption had gone by. The tenant in common so purchasing was held entitled to said land as again.st another tenant in common who offered to contribute to the redemption cost. But compare Oliver v. Hedderly, 32 Minn. 455, 21 N. W. 478 (1SS4), where the cotenant who purchased from the purchaser at foreclosure sale, after the time for redemption had gone by, had made arrangements for such trans- action with the mortga:;ee before the foreclosure. Ch. 5) ESTATES CREATED • 707 ent's mother was in possession. In the spring of 1882, Daniel T. Hurley took possession; the petitioner has never ottered to repaj any part of the sum paid to Capen ; and the question raised by the exceptions is whether Capen's deed to him is a bar to this petition. There has been some uncertainty as to the extent and grounds of the principle that a purchase of a tax title by one tenant in com- mon inures for the benefit of all. Frentz v. Klotsch, 28 Wis. 312,, 318; Insurance Co. v. Bulte, 45 Mich. 113, 120, 7 N. W. 707; Roth- well V. Dewees, 2 Black, 613, 618, 17 L. Ed. 309. Some cases dwell principally on the existence of a fiduciary relation, (Lloyd v. Lynch, 28 Pa. 419, 424, 70 Am. Dec. 137; Van Home v. Fonda, 5 Johns. Ch. (N. Y.) 388, 407; Flinn v. McKinley, 44 Iowa, 68; Weare v. Van Meter, 42 Iowa, 128, 20 Am. Rep. 616; Venable v. Beauchamp, 3 Dana (Ky.) 321, 324, 28 Am. Dec. 74;) while others put the proposition in the narrower form, that a tenant in common cannot take advantage of a title created by his own default as against his co-tenant, (Cho- teau V. Jones, 11 Ih. 300, 322, 50 Am. Dec. 460; Voris v. Thomas, 12 111. 442; Dubois v. Campau, 24 Mich. 360, 368; Lacey v. Davis, 4 Mich. 140, 152, 66 Am. Dec. 524; Downer v. Smith, 38 Vt. 464, 468. See Piatt v. St. Clair, 6 Ohio, 227 ; Bernal v. Lynch, 36 Cal. 135, 146; Carithers v. Weaver, 7 Kan. 110.) Undoubtedly, as is said by Dixon, C. ]., dissenting, in Smith v. Lewis, 20 Wis. 350, 356, it will be found in most of the cases that the party setting up the tax title was under an obligation to pay the taxes. It has been held that a tenant in common could purchase a tax title from a stranger after the period of redemption had expired, and hold it for his own benefit, (Reinboth v. Improvement Co., 29 Pa. St. 139 ; Keele v. Cunningham, 2 Heisk. (Tenn.) 288 ; W^atkins v. Eaton, 30 Me. 529, 536, 50 Am. Dec. 637; Coleman v. Coleman, 3 Dana (Ky.) 398, 403, 28 Am. Dec. 86;) and in diis commonwealth it is decided that he may take an assignment of a paramount mortgage, and rely on it to defeat a petition for partition, (Blodgett v. Hildreth, 8 AUen, 186.) On the other hand, it has been held that a purchase of a tax certificate before the period of redemption has expired, by one wha is not a tenant in common at the time, will inure to the benefit of the other tenants in common, if he becomes such before he gets the tax deed. Flinn v. McKinley, 44 Iowa, 68; Tice v. Derby, 59 Iowa, 312, 314, 13 N. W. 301. Compare Sneed v. Atherton, 6 Dana, 276, 279, 32 Am. Dec. 70. There are strong grounds for saying that there were no special fiduciary relations between the petitioner and the defendant in this case. Their titles were in part derived from different sources. Frentz v. Klotsch, 28 Wis. 312, 318. According to the bill of exceptions, the defendant was not in possession when he took the tax deed, (Wright v. Sperry, 21 Wis. 331, 337,) and he had no interest in the premises when the tax was assessed, or until after they were sold, while the peti- tioner owned or>e-half, subject to his father's tenancy by the cur- 708 • DERIVATIVE TITLES (Part 2 tesy. It is at least consistent with the facts stated to assume that the petitioner was not relying on the respondent in any way. See j\Iatthews v. Bliss, 22 Pick. 48, 52. Again, it would be pressing the notion of default very far to say that, although the defendant was a stranger to the estate at the time of the sale, yet, since he might have redeemed, he could not found a title on his failure to do so. But it is unnecessary to decide what would have been the effect if the de- fendant had taken a conveyance of the tax title to a third person, and had given the transaction the form of an assignment ; for, whether the defendant had a right to take an assignment or not, he certainly had a, right to redeem and pay off the incumbrance. Pub. St. c. 12, § 49. See Coughlin v. Gray, 131 Mass. 56, 58; Langley v. Chapin, 134 Mass. 82; Coxe v. Wolcott, 27 Pa. 154. Which of the two transac- tions took place may be a question for the jury, under some circum- stances. Coxe V. Wolcott, ubi supra. But, as was said in Watkins v. Eaton, 30 Me. 529, 534, 50 Am. Dec. 637, a case very similar in principle to the one at bar, "when a part owner obtains a conveyance of his own share, and the share or shares of co-tenants, by payment of the precise amount required to redeem them, he must be presumed, in the absence of all rebutting testimony, to have done so in the exercise of a legal right; and in such case the whole so conveyed will be re- deemed from the sale." See Sherwin v. Bank, 137 Mass. 444, 449. It is plain, on the face of the deed accepted by the defendant Daniel T. Hurley, that he redeemed the premises in the exerciseof his legal right so to do ; and it follows that the lien of the tax sale was discharged, in such a sense that it could not ripen into a legal title as against his co-tenants, except upon their refusal or neglect to pay their share. Watkins v, Eaton and Weare v. Van Meter, ubi supra. Then the question arises whether, as the respondent has paid the tax, and has not taken the steps to assert and preserve his lien prescribed by Pub. St. c. 12, §§ 63, 64, 65, his rights are not gone altogether. But we think that it would be too harsh a construction of those sections to hold that they apply to a redemption of the premises after a sale, when the tenant takes a deed which is put on record. We interpret the statute as intended to apply to a payment in the first instance, when, unless a certificate is filed as provided, there will be noth- ing in the registry to show the tenant's claim, and when no other statutory mode of divesting the title of his co-tenants has been set in motion. We are of opinion that, although the tax is legally paid, as we have said, yet the respondent Daniel Hurley is entitled to have the lien kept alive for his benefit until the petitioner shall have paid his share. Until that time, the petitioner has no right to the possession of any part of the land, in equity or at law. Watkins v. Eaton, 30 Me. 529, 535, 50 Am. Dec. 637. See McCabe v. Swap, 14 Allen, 188, 191 ; Gib- son V. Crehore, 3 Pick. 475, 5 Pick. 146, 150; Popkin v. Bumstead, 8 Mass. 491, 5 Am. Dec. 113. Therefore the petition was rightly dis- Ch. 5) ESTATES CREATED 709 missed. Pub. St. c. 178, § 3 ; Blodgett v. Hildreth, ubi supra ; Bradley V. Fuller, 23 Pick. 1, 8; Hunnewell v. Taylor, 6 Cush. 472; Coughlin V. Gray, 131 Mass. 57; Husband v. Aldrich, 135 Mass. 317, 318. Exceptions overruled. JACKSON V. BAIRD. (Supreme Court of North CaroUna, 1908. 148 N. C. 29, 61 S. E. 632, 19 L. R. A. [N. S.] .591.) Brown, J. It is admitted that Robert Baird was the owner of the land in controversy, and that he executed a deed in trust to secure $150 to S. H. Reid, trustee. After Robert Baird's death the land was sold by the trustee, who conveyed it to Mrs. Julia D. Shuford for a consideration of $286 by deed dated May 26, 1898. George Shuford and his wife, the aforesaid Julia, conveyed the land to defendant Laura Baird, wife of defendant John Baird, by deed dated May 28, 1898. The trustee's deed to Mrs. Shuford, although dated May 26th, recites that the sale took place on May 28th. It appears that Julia Baird joined in the execution of the note and deed in trust along with Robert Baird. The plaintiffs allege that the debt was contracted for ■John Baird's benefit. The defendants deny this, and aver that John Baird signed as surety for his father, Robert Baird. The evidence of- fered upon this point is very meager and tends to prove that the money borrowed was used in building a house upon the tract of land in con- troversy, which belonged to Robert Baird. This case was presented to this court upon the theory that there is evidence that Shuford bought in the property in trust for Baird, and that consequently, as Baird is a tenant in common with plaintiffs, the title he acquired, whether legal or equitable, must inure to the joint benefit of all. We do not think there is any evidence whatever of a fraudulent combination between Shuford' and Baird to effect a secret sale of the property or to suppress bidding, although the testimony of Judge Shuford may possibly be susceptible of the construction that he intended the property for Baird, and that he was acting in his interest. The contention of plaintiffs that John Baird could not acquire the exclusive title at the sale is founded upon a misapprehension of the law. The general rule is well settled that one co-tenant cannot pur- chase an outstanding title or incumbrance affecting the common estate for his own exclusive benefit and assert such right against his co-ten- ants; but that rule does not apply under the facts of this case. The title which was acquired by Shuford, assuming that he acquired it for Baird, was not an outstanding title adverse to the title of Robert Baird. It was the title of Robert Baird himself, the common ancestor under whom all claimed, and the sale was being made under a deed executed by such ancestor and to pay his debts, which was an incumbrance on the land when it descended to plaintiffs and their coheir. 710 DERIVATIVE TITLES (Part 2 It is held in the state that one co-tenant lawfully may purchase his co-tenants' share of the common property under execution sale to pay the debt of such co-tenant. Likewise, it is held that one of the co- tenants may purchase the entire property at a sale to pay the com- mon ancestor's debt. Baird v. Baird's Heirs, 21 N. C. 536, 31 Am. Dec. 399. In that case Chief Justice Ruffin says : "It is a very com- mon case that one brother buys at sheriff's sale the undivided estate of another brother in descended lands, either for the debt of the ancestor, or that of the brother himself contracted after the father's death ; and we believe the legality of such a purchase has never been questioned." Again : "It is not the duty of one heir, or of one tenant in common as such, to pay the debts of another tenant in common, * * * nor to refrain from buying to his own disadvantage, more than it is the duty of any other person, wholly unconnected with them." So it is said by Judge Gaston that "a tenant in common, as such, is not a trustee for his companion." Saunders v. Gatlin, 21 N. C. 92. It is likewise held in England that there is no fiduciary relation existing between tenants in common, as such, and that a tenant in com- mon of property previously mortgaged, who purchased the entire prop- erty at the mortgage sale, was entitled to hold it for his sole benefit. This is an interesting case, decided by the House of Lords and Privy Council, in which an elaborate opinion is delivered by Lord Herschell and concurred in by the other Lord Justices. See, also, 17 Am. & Eng. 676, and cases cited; also. Freeman, Co-Tenancy, §§ 162-165; Blodgett v. Hildreth, 90 Mass. (8 Allen) 186; Sutton v. Jenkins (at this term) -147 N. C. 11, 60 S. E. 643. When the land in controversy descended upon these plaintiffs and upon their coheir, John Baird, it was incumbered with the mortgage to Reid made by their ancestor. When that mortgage was foreclosed in the manner allowed b}'' law, any one of the heirs had a right to pur- chase the entire estate to protect his own interest, and he would ac- quire the title discharged of any trust to his coheirs. There is no evidence that John Baird agreed to purchase for the benefit of the other heirs, or endeavored to suppress bidding, or practiced any other fraud upon his co-tenants. So far as the record discloses, the sale appears to have been fairly made by the trustee, and it was open to the plaintiffs -or any of them to attend and purchase if they so desired. We think therefore the judgment of nonsuit should be affirmed. Ch. 5) ESTATES CREATED 711 PICO V. COLUMBET. (Supreme Court of California, 1859. 12 Cal. 414, 73 Am. Dec. 550.) This was an action by one tenant in common against his co-tenant, who is in the sole possession of tlie premises, to recover a share of the profits of the estate. In the Court below, the defendant demurred to the complaint of the plaintiff, upon the ground that "it does not state facts sufficient to constitute a cause of action." The demurrer was overruled. De- fendant excepted, and subsequently answered. This Court has con- sidered the question of the sufficiency of tlie complaint, the substance of which is set out in the opinion of the Court. The judgment of the Court below is, that the bill be dismissed, and defendant have judg-- ment for his costs. Plaintiff appealed to this Court. Field, J., delivered the opinion of the Court — Terry, C. J., and Baldwin, J., concurring. This action is brought by one tenant in common against his co- tenant, who is in the sole possession of the entire premises, to recover a share of the profits received from tlie estate. The case was argued upon the demurrer to the complaint, which, by stipulation of the par- ties, was admitted to have been taken on the ground that the com- plaint does not state facts sufficient to constitute a cause of action. The complaint avers a tenancy in common between the parties ; the sole and exclusive possession of the premises by the defendant; the receipt by him of the rents, issues, and profits thereof ; a demand by the plaintiff of an account of the same, and the payment of his share ; the defendant's refusal ; and that the rents, issues, and profits amount to $84,000. These averments, and not the form in which the prayer for judgment is couched, must determine the character of tlie plead- ing. The complaint is designated a bill in equity, but the designation does not make it such. There are no special circumstances alleged which withdraw the case from the ordinary remedies at law, and re- quire the interposition of equity. The action is a common law action of account, and, viewed in this light, the complaint is fatally defective. It does not aver that the defendant occupied the premises upon any agreement with the plaintiff, as receiver or bailiff of his share of the rents and profits. It is essential to a recovery that this circumstance exist, and equally essential to the complaint that it be alleged. By the common law, one tenant in common has no remedy against the other who exclusively occupies the premises and receives the entire profits, unless he is ousted of possession when ejectment may be brought, or unless the other is acting as bailiff of his interest by agree- ment, when the action of account will lie. The reason of tlie doctrine is obvious. Each tenant is entitled to the occupation of the premises ; neither can exclude the other; and if the sole occupation by one co- tenant could render him liable to the other, it would be in the power 712 DERIVATIVE TITLES (Part 2 of the latter, by voluntarily remaining out of possession, to keep out his companion also, except upon the condition of the payment of rent. "The enjoyment of the absolute legal right of one co-tenant would thus often be dependent upon the caprice or indolence of the other. 1 Co. Lit. 200; 5 Bac. Ab.'367; Willes, 209. The statutes of 4 and 5 Anne, 16, gave a right of action to one joint tenant, or tenant in common, against tlie other as bailiff, who received more than his proportional share of the profits. At common law, the bailiff was answerable, not only for his actual receipts, but for what he might have made from the property without willful neglect, (Co. Lit. 172, a. Willes, 210;) but as bailiff under the statute of Anne, he was responsible only for what he received beyond his proportionate share. That statute only applied to cases where one tenant in com- mon received from a third person money, or something else, to which both co-tenants were entitled by reason of their co-tenancy, and re- tained more than his just share according to the proportion of his in- terest. This was held in Henderson v. Eason, Exch. 9 Eng. Law and Eq. 337. In that case, it was decided that if one of two tenants in common solely occupies land, farms it at his own cost, and takes the produce for his own benefit, his co-tenant cannot maintain an action of account against him as bailiff for having received more than his share and proportion. The statute of Anne has never been adopted in this State, nor have we any similar statute. The case at bar must therefore be determined upon the principles of the common law. By them, as we have ob- served, the action cannot be maintained against the occupying tenant ufnless he is by agreement a manager or agent of his co-tenant. The occupation by him, so long as he does not exclude his co-tenant, is but the exercise of a legal right. His cultivation and improvements are made at his own risk ; if they result in loss, he cannot call upon his co-tenant for contribution, and if they produce a profit, his co- tenant is not entitled to share in them. The co-tenant can at any mo- ment enter into equal enjoyment of his possession : his neglect to do so may be regarded as an assent to the sole occupation of the other. On this point, the observations of Baron Parke in Henderson v. Eason are pertinent, although that case arose under the statute of Anne : "There are obviously many cases," says the Justice, "in which a tenant in common may occupy and enjoy the land or other subject of tenancy in common solely, and have all the advantage to be derived from it, and yet it would be most unjust to make him pay anything. For instance, if a dwelling-house or room is solely occupied by one tenant in common without ousting the other, or a chattel is used by CMie tenant in common, and nothing is received, it would be most in- equitable to hold that by a simple act of occupation or user, without any agreement, he should be liable to pay a rent, or anything in the nature of a compensation, to his co-tenant for that occupation, to which, to the full extent to which he enjoyed, he had a perfect right. It ap- Ch. 5) ESTATES CREATED 713 pears impossible to hold such a case to be within the statute, and an opinion to that effect was expressed by Lord Cottenham in McMahon V. Burchell. Such cases are clearly out of the operation of the stat- ute. Again, there are many cases where profits are made and are actually taken by one co-tenant, yet it is impossible to say that he has received more than comes to his just share. For instance, if one ten- ant employs his capital and industry in cultivating the whole of the piece of land, the subject of the tenancy, in a mode in which the money and labor expended greatly exceeds the value of the rent or compensa- tion for the mere occupation of the land, in raising hops, for example, which is a very hazardous adventure, and he takes the whole of the crops, is he to be accountable for any of the profits in such a case, where it is clear, if the speculation had been a losing one altogether, he could not have called for a moiety of the loss, as he would have been enabled to do had it been so cultivated by the mutual agreement of the co-tenants? The risk of tlie cultivation, and the profits and the loss, are his own, and what is just with respect to the very uncer- tain and expensive crop of hops, is also just with respect to all the produce of the land, the fructus industriales, which are raised by the capital and industry of the occupier, and cannot exist without it. In taking all the produce, he cannot be said to receive more than his just share and proportion to which he is entitled as tenant in common, as he receives in truth the remuneration for his own labor and capital,- to which a tenant has no right." The American cases are to the same effect. In Sargent v. Parsons, 12 Mass. 149, the Court said : "The action of account is maintainable only against a bailiff; and a bailiff can only be one who is appointed such, or who is made such by the law, which latter instance applies only to a guardian, who is bailiff of his ward, and who is liable, not only for rents and profits actually received, but also for those which he might have received by a proper management of the estate. One tenant in common may, by contract, make another his bailiff or re- ceiver; and if he does, he may bring him to account in this form of action ; and probably, also, to avoid a process considered in some de- gree troublesome, might sue him in indebitatus assumpsit as on a promise to account. But this must be for rents and profits actually received beyond his share ; for, by the common law, no remedy is given for a mere sole use and occupation by one of the tenants ; for it is in the power of each tenant at any time to occupy ; and the not doing it by one would look like an assent that the other should occupy the whole." In Woolever v. Knapp, 18 Barb. (N. Y.) 265, the defendant had en- joyed the sole possession of a farm for five years, the rent and occupa- tion of which was worth two hundred dollars a year. The plaintiffs were his cotenants, and brought their action of account. The Court decided that the action could not be sustained, holding that one tenant in common who possesses the entire premises, without any agreement 714 DERIVATIVE TITLES (Part 2 with his co-tenants as to his possession, or any demand 'on their part to be allowed to enjoy the same with him, is not liable to account in an action for their use and occupation. See, also. Nelson's Heirs v. Clay's Heirs, 7 J. J. Alarsh. (Ky.) 139, 23 Am. Dec. 3S7. We have treated this case as an action of account at law, but to the fame result we should come if the proceeding were in equity. There is no equity in the claim asserted by the plaintiff to share in profits resulting from the labor and money of the defendant, when he has ex- pended neither, and has never claimed possession, and never been lia- ble for contribution in cases of loss. There would be no equity in giving to the plaintiff, who would neither work himself, or subject himself to any expenditures or risks, a share in tlie fruits of another's labor, investments, and risks. The cases to which our attention has been called, in which equity has sustained an account in favor of one tenant in common, out of possession, against his co-tenant in possession, for the rents and profits, are, with some exceptions in the Court of Appeals of South Carolina, those in which the account was a collateral incident to a claim for partition, and the rents and profits claimed were due from the defend- ant as a tenant of the plaintiff's interest, or were received by him when they belonged to both parties, or were the proceeds of their joint labor and expenditures. Thus, in Pope v. Haskins, 16 Ala. 321, the defend- ant had leased of the complainant his undivided one-third interest in a lot belonging to the parties as tenants in common, and upon the expira- tion' of the lease had rented out the lot to a third party, and received the entire profits, and the bill was filed to obtain an account of the rents and profits, and for a partition of the property. , In Hannan v. Osborn, 4 Paige (N. Y.) 336, the bill was filed for the 'partition and sale of a lot of land, and an account of the rents and prof- its, and the account directed was of the rents and profits received by any of the parties, not of the profits made in the use and occupation of the premises. In Turner v. Morgan, 8 Ves. 143, the bill prayed partition of a house at Portsmouth, and an account of the rent, under the following circum- stances : The house was decreed to three persons, equally to be divided. The plaintiff purchased two-thirds. The defendant was tenant of tlie house under a lease of (i22) twenty-two pounds a year, and refusing to raise the rent, the plaintiff brought ejectment for his two-thirds. The ejectment was defeated, the defendant purchasing the remaining third. Upon this, the bill was filed. The Chancellor allowed a partition. No question appears to have been made upon the right of the plaintiff to an account, the defendant having been tenant under the lease ; and the Chancellor observed, in relation to the account, that there was a possi- ble distinction between the time during which the defendant was ten- ant, and the time since he became owner, but that justice would be answered by inquiring what would have been a reasonable rent in each year the account was sought. Ch. 5) ESTATES CREATED 715 The doctrine laid down by the Court of Appeals of South Carolina, as to tlie liability of one co-tenant to another, is believed to be peculiar to tliat Court. In Hancock v. Day, McMul. Eq. (S. C.) 69, 36 Am. Dec. 293, Thompson v. Bostick, McMul. Eq. (S. C.) 75, and Holt v. Robertson, A'lcMul. Eq. (S. C.) 475, it was held that as between tenants in common, the occupying tenant is liable for rent of so much of the premises as was capable of producing rent at the time he took possession, but not liable for that which was rendered capable by his labor. The reasons upon which these decisions rest do not com- mend themselves to our judgment, and are insufficient to overcome the force of the EngHsh, Massachusetts, New York, and Kentucky au- thorities. The. demurrer should have been sustained; but as the same result was obtained by a judgment rendered for the defendant on the merits of the case, it will be sufficient to direct the affirmance of the judg- ment.^* 5 8 See Gage v. Gage, 66 N. H. 2S2. 29 All. 543, 28 L. R. A. 829 (1890), semble contra. The Stat. 4 Anne, c. 16. § 27, has been deemed in some states a part of the common law, as, for example, in Massachusetts and Maryland. Munroe v. Luke, 1 Mete. 459 (1840) ; Flack v. Gosnell, 76 Md. SB, 24 Atl. 414, 16 L. R. A. 547, 35 Am. St. Rep. 413 (1892). In many states there are statutes in varjang terms giving to one co-owner a remedy along the general lines of the statute of Anne, against another co-owner. See 1 Stim. Am. St. Law, § 1378. By chapter 2, § 1 (paragraph 27 of Jones & A. Ann. St. of Illinois, 1913), it is provided: "That where one or more joint tenants, tenants in common or copar- ceners in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his, her or their interest, such per- son or persons, his, her or their executors and administrators, shall account therefor to his or their co-tenant, jointly or severally." Section 10956 of Howell's Michigan Statutes provides that : "One joint ten- ant or tenant in common, and his executors or administratoi's, may maintain an action for money had and received, against liis cotenant, for receiving more than his just proportion of the rents or profits of the estate owned by them as joint tenants or tenants in common." As to whether the rents and profits have been "received" so as to permit use of the remedy under Stat. 4 Anne, c. 16, or similar statute, see Henderson v. Eason, 17 Q. B. 701 (1851) ; Sargent v. Parsons, 12 Mass. 149 (1815) ; Woolever V. Knapp, 18 Barb. (N. Y.) 265 (1854) ; Cheney v. Ricks, 187 III. 171, 58 N. E. 234 (1900) ; Howard v. Throckmorton, 59 Cal. 79 (1881). m West V. Weyer, 46 Ohio St. 66, 18 N. E. 537, 15 Am. St. Rep. 552 (1888), under a statute which provided that "one tenant in common, or coparcener, may recover from another his share of the rents and profits received by such tenant m common or coparcener from the estate, according to the justice and equity of the case," it was held that a cotenant in possession of the entire common property could be required to account for his co-owner's share of the reasonable worth of such occupation, thou2h there had been no ouster. See Thompson V. Bostick, McMul. Eq. (S. C.) 75 (3840) ; Early v. Friend, 16 Grat. (Va.) 21. 78 Am. Dec. 649 (1860) ; Hayden v. Merrill, 44 Vt. 336, 8 Am. Rep. 372 (1872) ace. 716 DERIVATIVE TITLES (Part 2 CALVERT V. ALDRICH. (Supreme Judicial Court of Massachusetts, 1S68. 99 Mass. 74, 96 Am. Dec 693.) Contract. The defendant filed a declaration in set-off on an ac- count annexed for two fifths of the cost of repairs of a machine shop in Lowell : and the only question in dispute in the case was the liability of the plaintiff for any portion of such cost. At the trial in the superior court, before Reed, J., these facts appear- ed : Calvert and Aldrich owned the machine shop and the machinery therein in the proportion of two fifths and three fifths respectively, as tenants in common ; and Aldrich, having agreed to pay to Calvert a yearly rent for such occupation of Calvert's two fifths, was in occupa- tion thereof when the building caught fire, and the roof, windows and one of the floors were so burnt that the machinery was exposed to injury by the weather. Calvert at this time was in Europe, but had an agent in Lowell, to whom Aldrich immediately represented the im- portance of repairing the building. The agent confessed such impor- tance, but replied that he had no authority from Calvert to sanction any repairs, and wrote to Calvert for instructions, who replied, declining to make any repairs upon the building. This letter the agent showed to Aldrich, who meanwhile had caused the building to be repaired. After the return of Calvert, Aldrich showed him the repairs and stated to him the expenses thereof, and asked him to contribute his propor- tion of the same. But Calvert, not disputing that the expenses were reasonable, contended that he was not Hable for any portion of them, and refused to contribute. On these facts the judge ruled that the defendant could not recover on his account in set-off, and ordered judgment for the plaintiff; and the defendant alleged exceptions. Foster, J. The issue in this action is on an account of one co- tenant in common against another to recover from the defendant in set-off part of the cost of certain needful repairs made by the plaintiff in set-off upon the common property. It is not founded upon any con- tract between the parties, but upon a supposed legal obligation which, if its existence were established, tlie law would imply a promise to fulfill. The doctrine of the common law on this subject is stated by Lord Coke as follows: "If two tenants in common or joint tenants be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda, and the writ saith ad reparationem et sustenta- tionem ejusdem domiis teneantur, whereby it appeareth that owners are in tliat case bound pro bono publico to maintain houses and mills which are for habitation and use of men." Co. Lit. 200b ; Id. 54b. And in another place he says : "If there be two joint tenants of a wood or arable land, the one has no remedy against tlie other to make inclo- Ch. 5) ESTATES CREATED 717 sure or reparations for safeguard of tlie wood or corn," but if there be two joint tenants of a house, the one shall have his writ de reparatione facienda against the other. This is said to be because of "the pre- eminence and privilege which the law gives to houses which are for men's habitation." 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 tlie 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 over head 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 intimations of tlie court on the subject were such that no further at- tempt appears to have been made. The relations between tenants in comm.on were not actually involved in this case, and the remarks touch- ing the writ de reparatione were only incidental and by way of illustra- tion. Doane v. Badger, 12 Mass. 65, was an action on the case. The plain- tiff' 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 pur- chased, and, without any previous notice or request, was liable in dam- ages 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 re- quest were indispensable before any action could be maintained. Mr. Justice Jackson in dehvering the opinion made some general observa- tions, unnecessary to the decision of the cause, the correctness of which requires a particular examination. He said that the action on the case seems to be. a substitute for the old writ de reparatione facienda be- tween tenants in common, and could not be brought until after a re- quest and refusal to join in making the repairs. He added: "From 718 DERIVATIVE TITLES (Part 2 the form of the writ in the register, it seems that the plaintiff, before bringing the action, had repaired the house, and was to recover the defendant's proportion of the expense of those repairs. The writ con- chides, 'in ipsius dispendium non modicum et gravamen.' It is clear that 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 certainty that he would apply the money to that purpose." IMumford v. Brown, 6 Cow. 475, 16 Am. Dec. 440, a per curiam opinion of the supreme court of New York, and Coffin v. Heath, 6 Mete. 80, both contain obiter dicta to the same effect, apparently founded upon Doane v. Badger, without 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 cotenant a due pro- portion of the expense thereof, there would certainly be much reason" for holding an action on the case to be a modern substitute for the ob- solete 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 m.ade under the order of court. Indeed, this is implied in the very style by which the writ is entitled, de reparatione facienda, viz.: of repairs to be made; the future participle facienda 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, in 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, &c., which falls to decay, 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 adjoining 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," &c., "he, together with B. and C, his partners, cause to be re- paired." The cases in the Year Books referred to in the margin of Fitzherbert confirm the construction which we 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 ac- tion for dam'ages is maintainable by one tenant in common against an- other because the defendant will not join with the plaintiff in repairing 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 tlie defendant repair, and that he be dis- trained to do it. So in this writ he shall have the view contra, if it be Dut an action on the case for not repairinq^. for tl^<=r- 1-p ^hall recover Ch. 5) ESTATES CREATED 719 but damages." There is no doubt that an action on the case is main- tainable to recover damages in cases where the defendant is alone bound to make repairs for the benefit of the plaintiff without contribu- tion on the part of the latter, and has neglected and refused to do so. See Tenant v. Goldwin, 6 Mod. 311, s. c. 2 Ld. Raym. 1089; 1 Salk. 21, 360. The difficulty in tlie 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 sus- tained, 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, who said : "At common law no action lies by one tenant in common, who has expended 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 rcparatione facienda 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 re- pairs. Between tenants in common, partition is the natural and usu- ally 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 doc- trines of the common law of England, it is at least safe to conclude that no action between tenants in common for neglecting or refusing to repair the common property, or to recover contribution for repairs mad^ thereon by one without the consent of the other, has been adopt- ed among the common law remedies in Massachusetts. This result is in accordance with the rulings at the trial. Exceptions overruled.^'* 5 9 "The general doctrine is that one tenant in common can compel his coten- ant to share in the expense of necessarj' repairs to the common property, by- requesting him so to do. If the cotenant refuse to join in making such repairs, he may, after such request and refusal, make them and recover of the cotenant for his proportionate share. But he cannot, without the consent of his co- tenant, make permanent improvements upon the conmion property at the ex- pense of the tenants in common. If he desires to improve his share of the common property beyond what his cotenants will consent to, he must resort to a petition for partition, so that he can own his share in severalty. 4 Kent, Clom, 420 to 42,3 (*.370, 371) ; 1 Wash. R. P. 420, 421 ; Kidder v. Rbrford, 16 Vt 169. 42 Am. Dec. 504 (1844)." Farrand v. Gleason, 56 Yt. 6-33, a38 (1884). See Ward V. Ward, 40 W. Va. 611, 21 S. E. 746. 20 L. R. A. 449, 52 Am, St. Rep. 911 (1895). "A tenant in common cannot, in the absence of an agreement or understand- 720 DERIVATIVE TITLES (Part 2 PICKERING V. PICKERING. (Supreme Court of New Hampshire, 1885. 63 N. H. 468, 3 Atl. 744.) 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. Bingham, J. The plaintiff seeks for an accounting, and to charge the defendant for the rents and income of lands and buildings thereon. The parties are tenants in common. The defendant has had the pos- session and income of the property since December 27, 1883, and has in that time expended $370 in necessary repairs that materially in- creased 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 cotenant 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, Wiggin v. Wiggin, 43 N. H. 561, 568, 80 Am. Dec. 192), because both parties, until this is done are equally in fault, one having as much reason to complain as the other (Mumford V. Brown, 6 Cow. 475^77, 16 Am. Dec. 440, Kidder v. Rixford, 16 Vt 169-172, 42 Am. Dec. 504, 4 Kent Com. 371, Doane v. Badger, 12 Mass. 65-70, Calvert v. Aldrich, 99 Alass. 78, 96 Am. Dec. 693), it does not follow that in this proceeding for an equitable accounting for the income, a part of which is 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 knowl- edge of his cotenant, while in the last the cotenant recognizes the ex- istence 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 the entire income is de- manded. It is not unlike the ratification of the acts of an assumed agent; it relates back to the time of making the repairs, and makes the ing with his cotenant to that effect, make improvements upon the common proi^erty at the expense, in any part, of his cotenant, so as to enable him to recover any portion of tlie cost or value of the improvements, either in an ac- tion brought by him for that puriiose, or by way of set-off in an action brought against him by his cotenant. We are not speaking of repairs, nor of what might be done upon a partition." Walter v. (ireenwood, 29 Minn. 87, 90, 12 N. W. 145 (1882). But see Nelson v. Leake, 25 Miss. 199 (1852) ; Ruffners v. Lew- is, 7 Leigh (Va.) 720, '60 Am. Dec. 51o (.1830). Ch. 5) ESTATES CREATED 721 plaintiff a privy from the beginning. He cannot claim the repairs and the income, and equitably ignore the expense of making them. In Moore v. Cable, 1 Johns. Ch. (N. Y.) 385, a bill for the redemp- tion of a mortgage, it was decided that the mortgagee should not be charged for rents and profits arising exclusively from repairs made by him. In Jackson v, Loomis, 4 Cow. (N. Y.) 168, 15 Am. Dec. 347, an action of trespass 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 permanent improvements, made in good faith, to the extent of the rents and profits claimed by the plaintiff. Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 547. In Rathbun v. Colton, 15 Pick. (Mass.) 472, 485, it was decided that when the rent of a trust estate is increased in consequence of improve- ments 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 plaintiff's 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, 799b ; Coffin v. Heath, 6 iMetc. (Mass.) 76, 80. And in 2 Story, Eq. PI. § 799b, 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, without notice seeks an account in equity as plaintiff against such possessor 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 im- provements of the estate beneficial to the owner." This is on the old, established maxim in equity jurisprudence, that he who seeks equity must do equity. Hannan y. Osborn, 4 Paige (N. Y.) 336 ; Dech's Ap- peal, 57 Pa. 468, 472 ; Peyton v. Smith, 2 Dev. & Bat. Eq. 325, 349 ; liibbert v. Cooke, 1 Sim. & S. 552. The sum of $370 for the repairs may be deducted from the income, Aig.Pkop. — 46 722 DERIVATIVE TITLES (Part 2 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 aris- ing from it. Case discharged. Blodgett, J., did not sit; the others concurred. Appeal of KELSEY. (Supreme Court of Pennsylvania, ISSG. 313 Pa. 119, 5 Atl. 447, 57 Am. Pvep. 444.) Mr. Chief Justice Mercur delivered the opinion of the Court, May 31st, 1886. . This bill was to compel partition of lands in which the appellees held the undivided five ninths. The Court decreed partition, and awarded to the appellants four ninths of the land. Their complaint now is the refusal of the Court to allot to them a proportionate value of the permanent improvements erected on the land by the appellees. It may be conceded that there may. be cases of partition in which the improvements should be held to enure to the benefit of all the co-ten- ants. It is well intimated such might be the case where one co-tenant undertakes to improve the whole estate as by erecting a building cov- ering the whole of a city lot. Here, however the improvements appear to have been such only as were reasonably necessary for the proper enjoyment of the land by the co-tenant who made them. While the title was in the wife of the appellee yet he was tenant by curtesy in- itiate, and therefore in making the improvements, presumably for himself and his wife, he cannot be treated as a mere stranger or volunteer. While a tenant in common is liable to his co-tenant for repairs absolutely necessary to buildings already erected and in being, which fall into decay; yet he is not liable to his co-tenant for new and permanent buildings- which the latter erects thereon: Beaty v. Bordwell, 91 Pa. 438; Crest v. Jack, 3 Watts, 238, 27 Am. Dec. 353; Dech's Appeal, 57 Pa. 467. Hence, although the appellees owned the larger share of the land they were powerless to compel the appel- lants to contribute towards the improvements. The appellees must either forego the proper use and enjoyment of their estate or else in- cur the necessary expense to make it productive. They chose to do the latter. The appellants paid nothing towards the improvements, and their estate was not injured by the erection thereof. This is a pro- ceeding in equity. Due regard must be had to the equitable rights of each party. Under the facts of this case it would not be a just ap- Ch. 5) ESTATES CREATED 723 plication of the rules in equity to give to the appellants any share of the value of the permanent improvements made by the aypellees only. Decree affirmed, and appeal dismissed at the costs of the appel- lants.«o GRISWOLD V. JOHNSON. (Supreme Court of Errors of Connecticut, 1824. 5 Conn. 3G3.) This was an action of ejectment; tried at New London, October term, 1823, before Peters, J. The plaintiff claimed title, by virtue of a deed from Charles Gris- wold, administrator de bonis non with the will annexed of Dyar Throop, deceased. In support of the title of Dyar Throop, the plain- tiff produced the will of his father, Rev. Benjamin Throop, deceased, containing the following devise : "To my two sons, Dyar and Ben- jamin, I give and bequeath to them, and their heirs and assigns, that part of my farm which lies Easterly of Wolf-swamp brook to be equal- ly divided between them for quantity and quality; and that my son Dyar have the part next the brook; upon the consideration that they bear their proportion with my other son, William, in paying what debts and legacies my personal estate will not answer, if any there be." That part of the farm, which lay Easterly of Wolf-swamp brook, was a tract of about thirty-seven acres; and the administra- tor's deed to the plaintiff contained about seventeen acres of that part of such tract lying next adjoining the brook, including the demanded prem-.ses, and described the land, which it purported to convey by metes and bounds. The plaintiff' claimed, and adduced evidence to prove, that such land was one half in quantity and quality of the tract of thirty-seven acres. He also claimed, that Dyar Throop took such land, under the devise, as estate in severalty. The judge instructed the jury, that Dyar and, Ben jamin, under the devise, took the tract lying Easterly of the brook, as tenants in common ; and that the deed, as it embraced but a part of such common estate, describing it by metes and bounds, was void, and conveyed no title whatever to the plain- tiff. The defendant claimed, and adduced evidence to prove, that Dyar refused to take any of the land under the devise. The plaintiff in- sisted, that admitting such refusal, Dyar's part thereupon became in- testate estate, and he became vested with an interest therein, as ten- ant in common with the other heirs of the testator ; and that the ad- 60 See Louvalle v. Menard, 1 Gilman (6 Til.) 39, 41 Am. Dec. 161 (1844) ; Mar- tindale v. Alexander, 26 Ind. 104. 89 Am. Dec. 458 (1866); Burns v. Parker (Tex. Civ. App.) 137 S. W. 705 (1911) ; Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsh. (Ky.) 139, 23 Am. Dec. 387 (1832)-; Cosgriff v. Foss, 152 N. Y. 104, 46 N. E. 307, 36 L. R. A. 753, 57 Am. St. Rep. 500 (1S97) ; Howard v. Morrissey, 7] Misc. Rep. 267, 130 X. Y. Supp. 322 (1911) ; Moore v. Williamson, 10 Rich. Eq. (S. C.) 323, 73 Am. Dec. 93 (1858). 724 DERIVATIVE TITLES (Part 2 ministrator's deed to the plaintiff, whether it contained the whole or a part of the common estate, conveyed the whole of Dyar's common interest in the land described in that deed. The judge instructed the jury, that if the deed embraced any quantity of the common estate less than the whole, describing it by metes and bounds, such convey- ance was in law null and void. The jury returned a verdict for the defendant; and the plaintiff moved for a new trial, for a misdirection. HosMER, C. J. The plaintiff claims title by the deed from Charles Griswold, the administrator de bonis non, with the will annexed, of Dyar Throop, deceased. The Rev, Benjamin Throop made his last will, devising to his sons, Dyar and Benjamin, a tract of land, of which the premises demanded is part, in manner following: "To my two sons, Dyar and Benjamin, I give and bequeath to them, their heirs and assigns, that part of my farm which lies Easterly of Wolf-swamp brook, to be equally divided between them for quantity and quality, and that my son Dyar have the part next the brook." The above tract contained thirty-seven acres, and the aforesaid administrator duly authorized by the court of probate, gave to the plaintiff' a deed of seventeen acres thereof, by metes and bounds, of that part of said land, which lies next adjoining the brook aforesaid. The plaintiff insists, that Dyar Throop, under the aforesaid devise, took the land described in the above deed, as an estate in severalty; while the de- fendant urges, that the said Dyar and Benjamin had title to the aforesaid land, east of the brook, as tenants in common. The court charged the jury in conformity with the defendant's claim; and that if the said deed embraced any quantity of said common estate, less than the whole, by metes and bounds, such conveyance in law was null and void. Whether the charge of the court was correct, depends on the an- swer which the law gives to two questions, namely : Was the estate in question devised in common to Dyar and Benjamin; and if so, was the deed invalid. 1. Tenants in common are such as hold by unity of possession, be- cause none knoweth his own severalty, and they occupy promiscuously. Co. Litt. sec. 292; 2 Bla. Comm. 191. The infallible criterion of this species of estate, is, that no one knoweth his own severalty ; and hence the possession of the estate necessarily is in common until a legal par- tition be made. But of an estate in severalty the criterion is, that a man knows, what he has the exclusive right of possessing ; and his posses- sion is sole, because no person has a right to occupy with him. If an estate is given to a plurality of persons, without any restrictive, exclusive and explanatory words ; from the nature of the case, they are tenants in common. 2 Bla. Comm. 192, 180. If the grant super- adds, that the property "is to be" equally divided" between them, the estate is held in common, because these words are inapplicable to a several estate. 2 Bla. Comm. 192. Now, in the case under discus- Ch. 5) ESTATES CREATED 725 sion, the devise to Dyar and Benjamin of a tract of land, constituted a tenancy in common on the preceding principles ; and this more par- ticularly is evinced, by the words "to be equally divided between them, for quantity and quality;" an expression indicating a future division of the property devised. The expression that "Dyar to have the part next the brook,'' construing the devise in all its parts together, and not dis jointly, denotes merely this; that when a future division of the property shall be made, Dyar shall have his portion assigned him in the place specified. It, however, has no possible effect on the tenancy in common necessarily arising from the unity of possession ; nor can it operate to produce such estate, unless by exchanging the former words, instead of giving them their legal construction. The claim, that Dyar had devised to him an interest in severalty, is not a little extravagant, inasmuch as the wisdom of the wisest would be baf- fled in the ascertainment of the bounds of this supposed several estate. The question, what is its quantity, its form, its location, no one ex- cept a competent judiciary can resolve. No bounds are mentioned ; no lines are prescribed ; no quantity is given. A court can take cog- nizance of the case; and, in a legal mode, well understood, determine the quantity, by the quality of the land, and, on principles of justice, assign a distinct location to each of the devisees ; but there is no com- petency to the performance of either of these acts, by an individual. 2. The deed of this common estate, by metes and bounds, the one tenant in common thus attempting to make a partition of the property, without any co-operation of the other, is, undoubtedly void. The point is at rest, and not to be questioned. Hinman v. Leavenworth, 2 Conn. 244, n. ; Starr v. Leavitt, 2 Conn. 243, 7 Am. Dec. 268 ; Mitchell v. Hazen, 4 Conn. 495, 10 Am. Dec. 169; Bartlet v. Harlow, 12 Mass. 348, 7 Am. Dec. 76 ; Porter v. Hill, 9 Mass. 34, 6 Am. Dec. 22. The determination of the Judge below was correct, and no new trial is to be granted.®^ CRESSEY V. CRESSEY. (Supreme Judicial Court of Massachusetts, 1913. 215 Mass. 65, 102 N. E. 314.) Petition for partition, filed in the Superior Court on March 17, 1911, the petitioner alleging that he and the respondents Job H. Cressey, Anna E. Emerson and Charles A. Newhall were tenants in common of certain premises on Park Street in Lynn, their undivided shares be- ing as follows : petitioner, eight twenty-eighths. Job H. Cressey, seven twenty-eighths, Anna E. Emerson, seven twenty-eighths, and Dorman, trustee for Charles A. Newhall, six twenty-eighths ; and that Arthur L Newhall, Sarah Effie Newhall, Anna E. Emerson and Charles A. Newhall claimed to own undivided interests other than as alleged. 61 Smith V. Benson, 9 Vt. 138, 31 Am. Dec. 614 (1837), ace. See Marshall v. Trumbull, 28 Conn. 183, 73 Am. Dec. 667 (1859). 726 DERIVATIVE TITLES (Part 2 The case was heard by McLaughlin, J., without a jury. The ma- terial facts found by him are stated in the opinion. He ruled that the partition should be made in the proportions set out in the petition, made an interlocutory judgment accordingly, and reported the case for determination by this court. RuGG, C. J. This is a petition for partition of land on Park Street in Lynn. The question at issue is the shares to which the several own- ers are entitled. The material facts are that in 1899 William M. New- hall died intestate, seized of several parcels of real estate, among them being the Park Street land which is the subject of this petition, leaving no widow and seven children. Title to all these parcels descended to his seven children as tenants in common. In 1903 on a judgment re- covered against one of these children, Sarah E. Newhall, all her right, title and interest in this Park Street land described by metes and bounds was sold, and by mesne conveyances the right acquired there- by is now held by Charles A. Newhall. In March, 1904, William F. Newhall' one of the seven children, died unmarried and intestate, leav- ing as his heirs his six surviving brothers and sisters. Thereafter judgment was recovered against Sarah E. Newhall and Harriet A. Newhall, on execution in which all their right, title, and interest in the Park Street land on July 27, 1904, described by metes and bounds, was sold, and by mesne conveyances all right under this deed has come to the petitioner. In November, 1905, commissioners were appointed by the Probate Court to make partition of the several parcels of real estate left by William M. Newhall at his decease among his six sur- viving children as tenants in common, the share of each being set out in the warrant as one sixth. In making partition the commissioners reported that the Park Street land, which they had appraised at $8,000, was equal to four shares, and, as in their judgment it could not be divided advantageously, they set it ofif to Anna E. Emerson, Sarah E. Newhall, Harriet A. Newhall and Mary I. Cressey, to each one fourth. This report was confirmed in March, 1906. Between March 1906, and March, 1910, Mary I. Cressey deceased leaving her share to Job H. Cressey, one of the respondents. In March, 1910, Harriet A. Newhall deceased, unmarried, intestate, leaving her four surviving brothers and sisters as her heirs at law, namely Anna E. Emerson, Sarah E. Newhall, Charles A. Newhall and Arthur I. Newhall. The levy of the two executions against Sarah E. Newhall was not upon the share held by her as tenant in common in the entire real es- tate inherited by her from her father. It did not follow the provisions of R. L. c. 178, sec. 13, 14. As has been pointed out, each was a levy apon all her title in only one of the several parcels held as tenants in common, which one was described by metes and bounds. The levy and sale upon execution of real estate of a debtor operates as a con- veyance of the title which the debtor was capable of conveying. One of several tenants in common cannot as against his cotenants make a sale by metes and bounds of a portion of the common land. Bartlet v. Ch. 5) ESTATES CREATED 727 Harlow, 12 Mass. 348, 7 Am. Dec. 76; Benjamin v. American Tele- phone & Telegraph Co., 196 Mass. 454, 82 N. E. 681, 13 Ann. Cas. 306. Sale on execution, which is in the nature of a statutory conveyance, stands upon the same basis as a conveyance by the owner. The case at bar is governed by Brown v. Bailey, 1 Mete. 254, in which at page 257 Chief Justice Shaw said, respecting facts precisely similar to those presented in the case at bar, "such conveyance or levy, therefore, is good against the grantor and all claiming under him. If then the other cotenants release, or if upon a partition, their full shares are set off in other parts of the common estate, and the part conveyed or levied on is assigned to the party whose share has thus been conveyed or levied on by metes and bounds, such partition op- erates by way of estoppel and release, because no one has any longer a fight to contest its validity." The principle that a conveyance by metes and bounds, whether by personal deed or statutory transfer, by one tenant in common of a portion of the common estate, although of no efifect against the consent of his cotenants, operates after parti- tion by way of estoppel to transfer the title, has been affirmed repeat- edly. De Witt V. Harvey, 4 Gray, 486, 491 ; Barnes v. Boardman, 157 Mass. 479, 32 N. E. 670; Barnes v. Lynch, 151 Mass. 510, 512, 24 N. E. 783, 21 Am. St. Rep. 470; Frost v. Courtis, 172 Mass. 401, 404, 52 N. E. 515. The application of this principle results in something like a wager or chance. The grantee gets nothing unless on partition the share of the grantor should happen to include the parcel described by metes and bounds in the deed. The grantor loses by estoppel and release all his interest in the parcel so described if it should happen to be set off to him. By the partition, the interest of Sarah E. Newhall in the entire es- tate inherited by her both from her father and her brother, consist- ing of several parcels, was converted into a one fourth interest in the Park Street property. Of this one fourth she acquired six out of seven parts by inheritance of the one seventh of her father's estate. This share, or six twenty-eighths, is held by the first levy of execution, which was made before the death of the brother, from whom she in- herited. The one sixth of one seventh which she inherited from him, constituting one out of seven parts of the one fourth of the Park Street property, or one twenty-eighth, passed under the second levy, under which also passed the entire share of Harriet. The ruling of the Superior Court as to who are the cotenants and their respective shares was right. Interlocutory judgment affirmed."* 62 Cf. Bising v. Stannard, 17 ISIass. 282 (1S21). Cf. also Butler v. Roys, 25 Mich. 5.3, 12 Am Hep. 218 (1872). See Eiiipric v. Alvarado, 90 Cal. 444. 27 Pae. .356 (1S91) : Youns v. Edwards, 33 S. C. 404, 11 S. E. 1066, 10 L. R. A. .55, 26 Am. St. Rep. 6S9 (1S90) ; Pellow v. Arctic Iron Co., 164 Mlcli. 87, 128 N. W. 918, 47 L. R. A. (N. S.) 573, Ann. Cas. 1912B, 827 (1910). 728 DERIVATIVE TITLES (Part 2 LESSEE OF WHITE v. SAYRE. (Supreme Court of Ohio, lS2o. 2 Ohio, 110.) This was an ejectment, and came before the court upon a case agreed, adjourned from Greene county. The facts material to be re- porteil, are these : The defendant was in possession of a tract of land which had been the property of his former wife, by whose death it had descended in parcenary to her eight brothers and sisters ; with one of the latter the defendant had again intermarried. By a judicial proceeding in the court of common pleas, partition had been made and a separate part assigned to each by metes and bounds. The lessor of the plaintift purchased the separate right allotted to three of the heirs, and took separate deeds from each for so much land specifically described. Error was afterward brought in the Supreme Court, upon the pro- ceedings in partition, and they were reversed. The declaration contained several demises ; among others, a separate one for one undivided eighth part of each of the tracts contained in his three deeds; and whether he could recover upon these deeds and demises, was the question submitted to the court. Hitchcock, J. It is well settled that where one joint tenant, or tenant in common, has ejected, or withheld the possession from his co-tenant, the person so ejected or held out of possession, may main- tain his ejectment against the ejector or person in possession. To determine the case under consideration, then, it is only necessary to ascertain whether the lessor of the plaintiflf took anything under the three several deeds referred to in the agreed case, or, in other words, whether he had any interest in the premises in dispute. The grantors were three of the heirs of the deceased wife of John Sayre, Jr. By the death of tlieir sister, the interest in the one hundred and fifty- five acres of land was vested in them and their brothers and sisters as coparceners, or tenants in common. It is to be observed, that when these deeds were executed, partition had been made of the one hun- dred and fifty acres of land, by judgment of the court of common pleas, in pursuance of the statute in such case made and provided. The three parcels which were conveyed to White had been, by this judgment, aparted and set off to the grantors in severalty. Under the then existing circumstances, they conveyed nothing more than they had a legal right to convey. So long as this judgment remained in force, the title of the lessor of the plaintiff to the lands to him con- veyed, was perfect. This judgment, however, was subsequently re- versed ; and it is necessary to ascertain how far the deeds, which were before operative, were affected by this reversal. That the reversal must in part, at least, defeat the operation or validity of those deeds, there can be no doubt. The judgment being reversed, tlie parties in interest could be no more affected by it than if no judgment had beer? Ch. 5) ESTATES CREATED 729 rendered. Under these circumstances, the decision of this case must depend upon the solution of these several questions : 1. Can one of two or more joint tenants, coparceners, or tenants in common, con- vey his interest in the estate thus held? 2. If he can convey his in- terest or estate in the whole property thus held, can he convey it in a part merely? 3. Is a deed, or grant, which purports to convey an estate in severalty, when the grantor has, in fact, only an estate in joint tenancy, coparcenary, or in common, void ; or does it convey the whole interest of the grantor in the premises purporting to be con- veyed ? 1. Can one of two or more joint tenants, coparceners, or tenants in common, convey his interest in the estate thus held? This is a question about which it is presumed there can be no dis- pute. Such conveyances are frequently made, and their validity is not questioned. In fact, this is one of the most common modes resorted to for destroying a joint tenancy. One joint tenant aliens and con- veys his estate to a third person, by \vhich means the joint tenancy is severed and turned into a tenancy in common. 2. If one joint tenant, etc., can convey his interest or estate in the whole property thus held, can he convey it in a part merely? The determination of this question is attended with considerable difficulty. This difficulty, however, arises, not so much from any ap- parent inconsistency, or impropriety in such grant, as from a possible inconvenience which might result to the tenant who retains his estate. One tenant in common may grant his entire interest or estate in a particular species of property, a tract of land for instance, or he may grant one-half as a smaller proportion of his interest in the same en- tire property. If this be correct, no good reason is perceived why he may not grant his entire interest in a particular part. A. and B. are seized of a section of land as tenants in common. It is well estab- lished, that A. may grant his entire interest, or estate, in the section, and the conveyance will be valid. Upon what principle, then, can it be said, that if he convey his entire interest in a particular quarter of such section, such conveyance shall be void? Certainly A. and B. tenants in common, as aforesaid, might with propriety unite and con- vey a particular quarter of the section, and a complete title in the grantee would be vested. Would not the title of the grantee be equally valid, if the tenants in common should by separate deeds convey to him their individual interest in that particular quarter? This question, it is believed, must be answered in the affirmative, and if so, it proves conclusively that one tenant in common may transfer to a third person his entire interest in a part of the property held in common. Other- wise we run into this absurdity, tljat a deed properly executed, by one individual, which is an entire -thing, and purports to convey a specific property, must depend for its validity upon the execution of a similar instrument by a third person, who is in no way party to the first. The principal reason assigned why one tenant in common shall 730 DERIVATIVE TITLES (Part 2 not be allowed to convey, as before stated is, that by so doing, he may do a great injury to his co-tenant, by compelling him in case of parti- tion, to take his proportion of the estate in small parcels, very much to his disadvantage. If such evils would result, they ought if possible to be avoided. It does not follow, however, that because one of two tenants in common can convey his estate in a part of the property so held, therefore the rights of his co-tenant are affected. This co-tenant will still have the same interest in every part, and in the whole of the property. He can still compel partition, and may have his share of the property s€t off to him in severalty, in the same manner he could have done had no conveyance been made. Such, at least, as at present ad- vised, is Jthe opinion of the court, and if in this we are mistaken, the objection is not of sufificient force to induce us to adopt any other prin- ciple, as applicable to this case, than as before stated. 3. Is a deed, or grant, which purports to convey an estate in sever- alty, when the grantor has in fact only an estate in joint tenancy, co- parcenary, or in common, void; or does it convey the whole interest of the grantor in the premises purporting to be conveyed? Every deed is to be so construed as, if possible, to give effect to the intention of the parties. It is to be construed most strongly against the grantor. If the intention of the parties, apparent upon the face of the instrument, cannot be carried into effect, this object should be attained as far as is possible. Taking these principles into considera- tion, and adopting them as correct, it follow^s, that where an individual undertakes to convey to another a greater interest in the thing conveyed than what he possesses, the grantee may take that which was in his grantor. A. conveys to B. one hundred acres of land by metes and bounds. It is afterward ascertained that C. has title to fifty of the one hundred acres included within the boundaries. Will it be said that B. can take nothing by this deed? On the contrary, all the lands within the prescribed boundaries, to which A. had title, are, by the conveyance, vested in B. So far as the deed can have effect, so far it ought. The circumstance that the grantor has attempted to convey more land than he was possessed of, shall not prevent the deed from conveying that of which he was possessed. Upon the same principle, if A. and C. had been tenants in common of the same one hundred acres of land, and A. had attempted to convey tlie whole in severalty to B. so far as A. had any interest, that interest would, by the convey- ance, have been vested in B. Thus far the deed would take effect. Under it B. would become tenant in common with C. in the same manner he would have done had tlie conveyance from A. been for an undivided moiety of the land. These principles being applied to tlie case under consideration, it will be seen that the grantors of "tlie lessor of the plaintiff, although they had not a several estate in the parcels of land by them to him conveyed, yet had an interest as coparceners, or tenants in common with others. That by the deeds of conveyance, this interest, what- Ch. 5) ESTATES CR"EATED 731 ever it might be, was vested in the lessor of the plaintiff; and he be- ing kept out of possession by the defendants, the action is well brought, and the plaintiff is entitled to a judgment. Let judgment, tlierefore, be entered accordingly."^ SECTION 7.— REVERSIONS AND REMAINDERS LEAKE, LAW OF PROPERTY IN LAND. If tenant in fee simple convey the land to a person for a particular estate only, as for an estate tail, or for term of life, or of years, there remains in him and his heirs an estate expectant, as to the possession, upon the determination of the particular estate. This estate is called the reversion, because the land then reverts or returns in possession to him or to his heirs. * * * In like manner, if the tenant of a particular estate convey the land for a less estate, he has a reversion left in himself. * * * The grant of a particular estate, leaving a reversion in the grantor, creates a tenure between the tenant of the particular estate and the reversioner. This tenure is not within the statute of Quia Emptores, for that statute extends only to alienations in fee simple, preventing any new tenure arising upon such alienations. Hence rent reserved upon such a grant of a particular estate is of the nature of rent serv- ice, and is attended at common law with the remedy of distress. And a grant of the reversion impliedly carries with it all the incidents of the tenure, as the rent service, if any, unless there be an express ex- ception of such incidents in the grant. * * * If tenant in fee simple convey a particular estate in the land to one person, and at the same time another estate, to commence in possession immediately upon tlie expiration of the particular estate, to another person, the latter estate is called, relatively to the prior particular es- tate, a remainder. Thus, if tenant in fee simple grant to A. for life, and after the determination of that estate to B. for life, the estate of B. is a remainder relatively to the estate of A. So, if the grant be made to A. for life, and after the determination of that estate to B. arid to his heirs, B. has a remainder in fee. In the former example there is a reversion in fee in the grantor ; in the latter the whole fee is disposed of and there is no reversion. In like manner, several re- mainders may be created successively in the same land, either leaving a reversion or with an ultimate remainder in fee. 6 3 The dissenting opinion of Burnet, J., is omitted. See Matter of Prentiss, 7 Ohio. 129, jit. 2, .30 Am. Dec. 20.3 (1836); Barn- hart V. Campbell, 50 Mo. 597 (1S72) ; KoLanett v. Preston's Heirs, 2 Rob. (Va.) 278 (1S4TJ); Stark v. Barrett, 15 Cal. .301 (1S60). 732 DERIVATIVE TITLES (Part 2 If a grant be made to A. for life, and after the lapse of a day after his death to B. for life or in fee, the limitation to B. is not a remainder, because it does not commence in possession immediately on the deter- mination of the particular estate; it is a hmitation of a freehold es- tate to commence in f uturo, which in a common law conveyance is void, and the reversion of A.'s estate remains in the grantor. Also a limitation which is to take effect in defeasance of a preced- ing estate, without waiting for the regular determination of that estate according to the terms of its limitation, is not a remainder ; and such a limitation is void at common law. But the preceding particular es- tate may be made determinable by a conditional limitation, and the estate limited to take effect in possession immediately upon its deter- mination, whether that happen under the conditional limitation or by the expiration of the. full term of limitation, is a remainder. The particular estate and the remainder must be created at the same time by one conveyance or instrument ; for if the particular estate be first created, leaving the reversion in the grantor, any subsequent dis- position can be effected only by grant or assignment of the reversion ; which is not thereby changed into a remainder, but still retains its character of a reversion, to which the tenure of the particular estate is incident. A remainder which is certain as to the owner and absolute as to his estate or interest is a vested remainder ; the remainderman is presently invested with a portion of the seisin or freehold, the whole fee being divided into a particular estate and remainder or remainders. . But a remainder may be limited to a person not yet ascertained, or to a certain person upon a condition precedent which may not happen until after the determination of the particular estate; and whilst such uncertainty lasts, as to the person or the interest, it is described as a contingent remainder. A contingent remainder becomes changed into a vested remainder by the owner becoming certain or tlie condition happening during the continuance of the particular estate. According to Fearne: "A contingent remainder is a remainder lim- ited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate." And, as he afterwards explains : "It is not the uncertainty of ever taking effect in possession that makes a remainder contingent; for to that every remainder for life or in tail is and must be liable; as the remainderman may die or die without issue before the death of the tenant for life." The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will be- come vacant, before the estate limited in remainder determines, uni- versally distinguishes a vested remainder from one that is contingent. The principle of the common law that the seisin of the freehold can never be in abeyance, but must always be vested in some determinate person imposed two rules upon the limitation and operation of con- Ch. 5) ESTATES CREATED 733 tingent remainders : The first of which rules was that a contingent re- mainder of freehold must always have a particular vested estate of freehold to support it. The other rule resulting from the principle above stated is : That a contingent remainder must formerly have become vested during the continuance of the particular estate or at the instant of its determina- tion. If not then vested, it failed altogether, and the next limitation took immediate effect. The limitation of a contingent remainder for Hfe or in tail, as it con- veys no estate, but only a possibility of an estate in a future event, does not interfere with the limitation of a vested estate of freehold in remainder ; and upon the contingent remainder becoming vested during the continuance of the particular estate, the vested remainder will be postponed in interest. Where there is a contingent limitation in fee absolute, no estate limited afterwards can be vested ; but twO' or more several contingent remainders in fee may be limited as substitutes or alternatives one for the other, so that one only take effect, and each subsequent limita- tion be substituted for a former if it should fail of effect; and the inheritance in the meantime, if not otherwise disposed of, remains in the grantor and his heirs, or in the heirs of the testator "until the con- tingency happens to take it out of them. Upon a devise of a contingent remainder in fee, the fee subject to the contingency will pass as a vested remainder under the will by a specific or residuary devise. Randall's Ed., pp. 228, 229, 230, 231, 233, 234, 236, 237, 243, 244. DERIVATIVE TITLES (Part CHAPTER VI COVENANTS FOR TITLE NOKE V. AWDER. (Queen's Beuch. 1595. Cro. Eliz. 373, 436.) Covenant. Wherein he shews that one John_King made a lease for years to A.jd ie defendant, who by deed granted it to Abel, andja;^e- nq,ni£ d with him ^__yiat-be and his assignees should peaceably enjoy it wi thout interruption. Abel grants it to J. S. who grants tlie term to t he plaintiff, w ho 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 arresi^_ofJudgment, that this action lay not for the second assignee, unless -Jie-CQuld shew the deed of the first , c^\ciianl, and of the assignment, and of every mean assignment; for ^«4r without deed_none can be assignee to take advantage of a ny cov e- [ J ^ ^f nant, which cannot commence j without deed ; and to that purpose cited lA » y^ Old Act, 102. and 19 Edw. II. "Covenant," 25. And if one be in- feoffed with warranty to him his heirs and assignees, and the feoffee makes a feoft'ment over without deed, the assignee shall not take ad- vantage of this warranty, because he hath not any deed of assignme nt. But if he had the deed, it should be otherwise; and to that purpose vide 13 Edw. III. "Vouch." 17. 3 Edw. III. "Monstrans de Fayts" 37. 11 Edw. IV. Ibid. 164. 15 Edw. II. Ibid. 44. 13 Hen. VII. 13. & 14. 22 Ass. plea 88. But P opham held, that he shall have a d- v antage ._ w ith.QU,t ..the, de ed of assignment; f o r there is a differenc e ^ vhere•a covenan t is annexed to a thing, which of its nature canno t p ass at the fir st without deed, and where not. For in the first case, the assignee ought to be in by deed, otlierwise he shall not have ad- vantage of the covenant; and therefore he denied tlie case of the feoffee with warranty ; f or the second , feoffee sh^ll have benefit of i he warranty, although he j oth^not shew the deed of assignment, b u t shew s tlie deed of the warranty : and so is the better opinion of the books. And to that opinion the other justices incHned. Sed adjournatur. Vide 3 Co. 63. It was now moved again. And all the Justices agreed, t hat the as - s jo'nee shall have an action of covenant without she win g any deed_2 f t he assignment: for it is a covenant which ^ r un s w ith the estate: ^d t he estate being passed without "^eed, the assignee "sfiall have the ben - efit of the covenant also: and the executor of the baron, who is as- signee in law, who comes in without deed, shall have the benefit of such a covenant, as appears 30 Edw. 3. in Symkins Simonds' case. And Popham and Fenner held, th^t a feoffee shall yi w^. Ch. 6) COVENANTS FOR TITLE 735 r anty made to his feoffor, without shewing any deed of assignment : f or the deed of assig;nment is not requisite, nor is it to any purpose to s hew it ; for it app ears by the book s, th at being shew n, it is not tra- v ersable by the vouchee . And as a warranty or covenant is not grant- able, nor to be assigned over without the estate; s o when the estat e p asseth, akhough it be by parole, the warranty and covenant ensue it| and the assignee of the estate shall have the bene fit 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 defend- ant for years, virtute cujus he was possessed, and granted it to Abel by indenture with the covenant, who in 15 KHz. assigned it to the plaintiff: and further alledgeth, that loiig time before that the said J. K. had any thing, 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 shew that John King who made the lease had any thing; for Robert King was thereof then seised. And then when John King let to the de- fendant, and he granted his term by indenture, nothing passed but by estoppel ; then the lessee by estoppel cannot assign any thing over, and then the plaintiff is not an assignee to maintain this action. Sut 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 free- hold, and thereof died seised, and so all might be true which is plead- ed ; tlien the entry of Thomas King upon the defendant is not lawful. So quacumque via data, 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 Court held here, th at it was clear upon the matter shewn , t kat the action lav not ; for the plaintiff ought to have shewn an estat e by descent in T. King . ^t the time of the lease and assignment made, or an estate wherebv he might make a leas.^ . and that this was afterwards determined ; a nd so confess and avoid the estate in the lessor, other- wise t his action of covenant lieth no t: ai id it never lies upon the as- s ignment of an es tat e by estopp el. 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 miOved again, all the justices resolved, that the assignee of a lease by estoppe l, s hall not take advantage of any covenant; but that it shall not be i ntended a lease by estoppel, but a lawful lease. But no sufficient title being shewn to avoid it, it is then as an entry by a stranger with- out title, which is not any breach. Wherefore it was adjudged for the defendant.^ 1 In an a ction of covenant for nnnn.qvment of rent by the assigriee of the Tpgsnr^gavnsf, l;Q p lepsep f-he plninfiff in his dpHni-Mtion alleged seiSin in fee in tfielessor at the time of making the indenture of lease, the execution of said 736 DERIVATIVE TITLES (Part 2 BEDDOE'S EX'R v. WADSWORTH. (Supreme Court of New York, 1S39. 21 Wend. 120.) Demurrer to declaration. Thi§ was a n action on covenants of jj jzt- ran tv and for^uiet enjoyment , contained i n a deed of land , dated July 7th, 1797, exe cuted by the defendant to John Johnston . Each count (there being six in all) averred that afterwards, viz. on tlie same day, the defen dant.by Johnston's direction, and with his conse nt, surrender- e d possession of the land to the testator . John Beddoe. who continu£ fl i n possession until Johnston, on the 16th August. 1802. bv indenture, in consideration of one dollar, therein expressed as in hand paid b y Beddoe. did *'remise. re lease. And forev er quit claim unto the said Jnh n Beddoe. h is heir s and assigns forevejr, all the right, title, interest, claim or demand, which the said John Johnston, &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." Ea ch count stated an eviction fr om part of the pre mises, while in possession of persons Haimin y nnd pr Tohn Reddoe. the plamtitt^s testato r, and diirir |cy th^ litAti-m^ ^f t^» t estator. The eviction was alleged to have been in virtue of a title in one Rachel Malin. All the counts except the sixth stated this titl e t o be paramount to the defendant' s ; and all except the fifth averr ed t hat the pla intiff^ as executor, had thereby incurred damages and cost s. The hlth count averred that the testator in his lifetime, and the plain- tiff since his death, had been obliged to pay them. The first and second counts averred th at the defendant's deed to Jo hnston was given to and received by Johnston-* for and in behalf ni RpdHop, thp t^st^to^. and for his benefit. All the counts except the third, concluded as for a breach of the cov- enant for q uiet enjoymen t only; the third was for a bre arl] nf the c ovenant of warrant y only. But the deed as set forth in eadi count in fact contained cov enants of seisin, o f warranty, f or quiet enjoymen t, a nd further assurance. The defendant demurred to each count. CowEN, J. If the covenants of warranty 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. Thi s count is defective in n^t averring tha t the eviction was by a title paramount to that of t he deTendant. Webb v. Alexander, 7 Wend. 281 ; Luddington v. Pulver, 6 Wend. 404 to 406; Greenby v. Wilcocks, 2 Johns. 1, 3 Am. Dec. 379 ; indenture, the assi^ment by the lessor, and the breach. To^a nlea nllPE p'ng t hat prior to the making of said lease the lessor had conveyed the premises in fee and th at thereafter the lessor has no Interest therein, there was a d eiu u r- i;e?r" The Seniurrer was sustained. Palmer v. Ekins, 2 Ld. Raym. 1550 (1728) . See Cuthbertson v. Irving, 4 H. & N. 471 (1859) ace. Noke V. Awder was approved in Nesbit v. Montgomery, 1 N. C. 181 (1800), and in Martin v. Gordon, 24 Ga. 583 (1858). Ch. 6) COVENANTS FOR TITLE 737 Ellis V. Welch, 6 Mass. 246, 4 Am. Dec. 122 ; per Savage, Ch. J., in Rickert v. Snyder, 9 Wend. 421, 422; 4 Kent's Comm. 479, 3d Ed. Non constat b nt Rachel Malin mav have proceeded to eviction upon a right derived from Johnston or the testator himsel f. In the other five counts, however, there is enough to show that d uring the life ti me of Beddoe the testator, he either became personally liable on cove- nants to his grantees as to a part of the premises from which the y were evicted by a title superior to the defendants , or suffered an in - j ury in an eviction of his tenant by a like superior tit le. 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 life time was obliged to pay a part, and the plaintiff another part after his death. In either case, the right of action pertained to the testato r personally. The covenant was broken by the eviction, and the whol e d amages were due^ Hosmer, Ch. ]., in Mitchell v. Warner, 5 Conn. 504 to 506, t he right to which passed on his death, not to his heir, but to hjs personal representative. Hamilton v. Wilson, 4 Johns. 72, 4 Am. Dec. 253 A covenant real ceases to be such when broken, and no l onger runs witKthe 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 Markland v. Crump, 18 N. C. 94, 101, 27 Am. Dec. 230; Kingdom v. Nottle, 1 Maule & Sel. 355; s. c, 4 Maule & Sel. 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 covenants 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 Comm. 471, note b, 3d Ed., and other books, "that they cannot be sep- arated 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." No New 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 Cow. 137; Garlock v. Closs, 5 Cow. 143, n. And see Markland v. Crump, 18 N. C. 94, 27 Am. Dec. 230; Booth v. Starr, 1 Conn. 244, 248, 6 Am. Dec. 233. Aig.Prop. — 17 738 DERIVATIVE TITLES (Part 2 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. Comm. 103, and a m ere naked possession is an imperfect degree of title, which r nay ripen into a fee by neglect of the real owner . Id. 195, 6. It is, in short, a n inchoate ownership or estate w ith which the covenants run to secure it against a title paramount; and in that sense is as- signable within the restriction insisted upon. I t is said in sev eral c ases that the covenants of warranty and quiet enjoyment refer em - p haticallyjp the possession and not to the titl e! WaldronTv. McCarty, 3 Johns. 471, 473, per Spencer, J. ; Kortz v. Carpenter, 5 Johns. 120. T he meaning is. that however defective the title may be, th gse c ovenants are not broken till the possession is disturbed . When the l atter even t transpires, an action lies to recover damages tor the fai l- ure both of possession and title according to the extent of such failu re. The case of Bartholomew v. Candee, 14 Pick. (Mass.) 167, was mainly relied upon in support of the ground taken by the first point. All that case decides is, t hat a covenant no longer runs with th e 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 seizin 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 seized, leaving the land to his children, who were still actually seized when the defendant conveyed to Thorp. Mr. Justice Wilde arrives at the conclusion t hat the covenant of seizin was broken before th e.jieed f rom Thorp to the plaintiff ; _ and adds : "This point being establish gd, i t is perfectly well settled that no action will lie on this contract in th e name of the assignee . By the breach of the covenant of seizin, an action accrued to the grantee, which being a mere chose in action, was not assignable." He 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, t hat neither Thorp nor the plaint iff e ver had possession ; so that, according to some cases, the covenan t o f warranty was also immediately broken ; Du vall v. Craig, 2 Wheat. 45, 61, 62, 4 L. Ed. 180; Randolph v. Meek, Mart. & Y. (Tenn.) 58; and according to our own it never could have any effect. No p_o s- s ession ever having been taken under the deed, there could b e no actu al e yiction, which is said to be essential to a recovery upon a covenant ofw|o;antj^ Webb v. Alexander, 7 Wend. 281 to 284, and thecases tliere cited ; Jackson, ex dem. Montresor, v. Rice, 3 Wend. 180, 182, 20 Am. Dec. 683, per Savage, Ch. J.; Vanderkarr v. Vanderkarr, 11 Johns. 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 enjoyment, by Hosmer, Ch. J., in Mitchell v. Warner, 5 Conn. Ch. 6) COVENANTS FOR TITLE 739 521 to 526. That an u nbroken covenant of warranty shall run with t he possession of the land, was not questioned by counsel or court in Bartholomew v. Candee. nor was it in a subsequent and similar case, Wheelock y. Thayer, 16 Pick. (Mass.) 68, also relied upon. I have looked through the other cases cited by the counsel for the defendant, and they all go to the point, eithe^ffiat a covenant broken j/jjj, ^ /\*f^ c eases to be assignable, orl:hat covenants in gross arp not so. Thej e ■^^__— _ -—"" p ositions are indisputably settled ; and fw e have adopted the first, in o rder to show that this action was properly brought hy John .Reddoe's e xecutor 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 covenants both that the defendant had authority to de- mise and for quiet enjoyment. The t itle failed before the plaintiff to ok an assignment; he entered and was ousted: and it wfis hflc^ that h e^ could not recover, because themere f ail ure of t hg.J:^^l^ KrnVp th^ covenants. Mansfield, Ch. J., said expressly, the assignor had only a right of action left, which he could not assign. It would seem by this » • case that, in England, a simple failure of title, without eviction, woul d ^ju-c*-a-«-*^ '*^C/f'*^ be a breach of the covenant for q uiet enjoyment. With us the doc- |yt,4^^yv^ ^^^^ trme i s clearly otherwise. Kortz v. Carpenter, 5 Johns. 120; Norman ^ «^ "Va^S Ct^ L V. Wells, 17 Wend. 160, and the cases there cited. And see Mitchell v. Warner, 5 Conn. 497, 522, and the very full reference there to the New York cases. In Andrew v. Pearce, the lease was treated as totall y g one, by a failure of the title; whereas there was still a continuin g possession, till the plaintiff was ousted, and then and not till then, a c- c ording to our cases, was the covenant for quiet enjoyment 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 covenan t o f^seizin. made and broken in the same breath, is there held , to run wit h the land, till actual damages are sustained by the breach.^ Kingdom V. Nottle, 1 Maule & Sel. 355 ; 4 Maule & Sel. 53. Kent's Comm. 471, 2, 3d Ed., says the reason assigned for the decision is too refined to be sound. The case is followed by Backus' Adm'r v. McCoy, 3 Ohio 211, 17 Am. Dec. 585; but severely criticised in Mitchell v. Warner, 5 Conn. 497 to 505 ; Kent's Comm. 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 sto p with ave rrjpjpr thaf Jo hnston, for the consideration of one dollar, re - noised, released and forever quit-claimed to the testator in fee . Tech- nically, these are but words ^f relea se ; and as up previous lease fro m Jo hnston to the testator is shown, it is supposed th at the g:ranting words are inoperative . Thi s objection supposes that the words used ca nnot carry the estate except as p art o f a conveya nce by, lease and ^'' t, Kt40 derivative titles (Part 2 -^ V release ; and that, in order to give them effect, a lease should be */ 7. shown, either by its production and proof, in the usual way, or its / recital in the release; a nd this formal strictness wo uld seem still tojgrevaUjn England. Doe, ex dem. Pember, v. Wagstaff, 7 Carr. & Payne, 477. In Bennett v. Irwin, 3 Johns. 365, 366, Van Ness, J., said, a mere release or quit-claim^ unless the releasee is in possession, is void. _R nt 1-hp declaration, in the case at bar, shows that the gra ntee was in possession. Even this strictness was, however, totally exploded, by the case of Jackson, ex dem. Salisbury, v. Fish, 10 Johns. 456, the operative words as set forth in the declaration being held of them- selves 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 ex- amination of this objection; for we do not remember its bein g d enied on the argument that words which are sufficient to pass a i te i n conveyancing are equally sufficient in pleading by way of av er- ment. The dem urrers are overrule d as to all the counts except the six th, a nd the judgment must be given for the plaintiff . The demurrer to the sixth count is well taken, and judgment must be given f or the ,de ^endant as to tha t count, with leave to both parties to amend.* SQtBERG v. ROBINSON. (Supreme Court of South Dakota, 1914. 34 S. D. 55, 147 N. W. 87.) PoLLEY,. J. On the 27th day of January, 1906, o ne C. C. Robinso n a nd wife executed and delivered to W. J. and J. L. Smith a certa in warranty deed, purporting_to^onvey to said Smiths, with other prop- env^qu arter section of land in Hughes Coun ty. On tlie 9th day of January, 1907, sai d Smiths executed and delivered to -plaintiffs a w ar- r ant}'- deed, purporting to convey said land to plaintiffs, but neither the Robinsons nor the Smiths were ever in the actual possession o f the 2 See Dickinson v. Hoomes' Adm'r, 8 Grat. (Va.) 406 (1852) ; Slater v. Kawson, 1 Mete, (aiass.) 450 (1840), s. c. 6 Mete. (Mass.) 439 (1813), aec. See, also, Dickson v. Desire's Adm'r, 23 Mo. lol, 66 Am. Dec. 661 (1856); Backus' Adm'rs v. McCoy, 3 Ohio, 211, 17 Am. Dec, 585 (1827). A., the owner of premises, lived thereon with her husband, he p^YJPg ^"hp taxes and looking ^ aftpr repnjrs^ t^tK laoth join ed in a deed c onveying the prem- ises to X., the deed cnntainlnp ; fovpn^nts by them that she was seized, also for qu iet ^niayme nt and ge neral warrant y. X. conveyed to Y., who, after eviction . sue^ A. anTB. on the CQvenant.s. ShonLI there be a "recovery? What should be the result where "ElTe spouse s ought" to be held liable by the assignee of the covenantee had an inchoate dower interest in the premises? See H. T. & C. Co. v. Whitehouse (Utah) 154 Pac. 950 (1916). A conv_eyance with warranty is made hv one "o^-- in possession: the cov e- nantee goes into possession and conveys to the plaintiff, wno is evicted , ^ojjld t he covenantor b e held liable on the covenant ? See Wead v. Larkin. 54 111. 489, 5"Xm: Rep. 14§'(1870) ; Tillotson v. Prichard, 60 Vt. 94, 14 Atl. 302, 6 Am. St. Rep. 9"i (I8S7). Ch. 6) COVENANTS FOR TITLE 741 land. Thereafter, one Vesev commenced an action against plaintiff s f or the purpose of quieting titleto said premises and to enjoin plaiji - tiffs in this action from asserting further claim thereto. Said action was defended by plaintiffs but, on the trial, it de veloped that, from a ti me long prior to the attempted conveyance from the Robinsons"" to t he Smiths and down tothe time, of the triah said Vesev was the ab- solute, owner in fe^ of the land in question ; that, while Robinson's -C title appeared to come through Vesey, the d eed which purported t o '^•^ d ivest him of his title proved to be a>-ig^ggj;; v and he had judgment ^ '&CA prayed for. Upon appeal to this court, said judgment was affirmed. A'^^ Vesey v. Solberg, 27 S. D. 618, 132 N. W. 254. ^ In the deed from Robinson to the Smiths, Robinson and wifa cove- nanted Xvith the Smiths: "Their heirs and assigns that they are well %^jl^ /tA^^v^ s eized^in fee of the lands and premises aforesaid and have goo d right ^ \ ^ t o sell aiid convey the same in manner and form aforesaid ." and that (/C#vt>»-u^»* ^* "the above bargained and granted lands and premises i n quiet and peaceable possession of the said parties of the second part, their heirs a nd assignsTand against all persons lawfully claiming or to claim t he whole or any p art thereof the said parties of the first p art will warra nt c^^^^jf . A x^^x and forev er,.defend." T he deed from the Smiths to plaintiffs c on- . * . t ained coyen^^nts (^^ similar impor t. '^ ^^^'*'**^^*'^ After the affirmance of the judgment quieting title to the said premises in Vesey, pl aintiffs commenced this action against the de -y f endant as administrator of the estate of the said C. C. Robinson, w hol^^,^,t_..^^ ^^ had died in the meantime, for the pur po se of recovering on the abo\^ ^ffT q uoted covenants in the Robinson deed of January 2 7, 1906^ During ^-«^^'*^^**'** all of this time, the land in question was vacant and unoccupied. The */ /(,t;ifmn By express statute, this covenant d oes run with the land : Civ. Code, § 1139. This covenant is made for the benefit of remote as well as immediate grantees, and, unless there is something in the facts connected with this case to re- lieve appellant from liability on the covenant, the plaintiff is entitled to recover, and the judgment should be affirmed. This is conceded by appellant, but, to avoid Hability, he contends that, because his intestate had no estate whatever in the premises at the time of making the covenant, and because his intestate's grantee did not go into possession of the land, there was nothing to which the covenant could attach to carry it to the covenantor's remote grantees. He also contends that, the covenantor having neither possession nor right of possession at the time he made the covenant, a constructive eviction took place at once and that the covenant immediately ripened into a cause of action in favor of his covenantee that neither ran with the land nor passed to his covenantee's grantee, and that, in any event, more than six years had elapsed since the breach of the covenant and plaintiffs' action is barred by the six years statute of limitations. In other words, that, in this particular case, the effect of both covenants is exactly the same, and plaintiffs are not entitled to recover on either. If appellant's po- sitiort is correct, the covenant for quiet enjoyment contained in the Robinson deed could never, under the facts in this case, become the basis for a recovery by anyone except his immediate grantee. Ahhough the deed purporting to divest Vesey of his title was a forgery and conveyed no title in fact, it a ppeared upon its face to be a valid coj i- vevanc e and the apparent chain of title from Vesey to plamtitts was perfect. For aught plain tiffs knew, or could know until Vesey asserte d his title, tVipyjy prp thp aKsolute owners of the fee and could hax e-sone i nto the physi cal possession of the land at any tim e. Supposmg plaintiffs had taken possession and afterward had learned the facts relative to the title to the land, and, before they had been dis- turbed by Vesey, had brought this suit against defendant for breach of the covenant for quiet enjoyment, he could have said: "You have not been disturbed in your rightful possession of the land and you may never be disturbed. While your deed may not be good, it is yet color of title, and if you are not disturbed by Vesey within the time for bringing an action for that purpose, your present title, although defective, will ripen into a title that can never be disturbed by anyone. In other words, you have no cause of action until you have been ac- tually ousted by a decree of court." This would be a complete defense Ch. 6) COVENANTS FOR TITLE 743 to plaintiff's demand, or the most they could recover would be nominal damages only. ^ Thj ^he proposition that covenants found in deeds purporting, to /Ipa/^^A-'^^'''^ c onvev title to land do not run with the land unless the covenanto r ^fT^ ^y ^ vas possessed of some estate in the land to which the covenant cou ld ^OCm^^'^-^ attach is supported bv manv. if notthe great weight of, judicial dec i- sions is not questioned. Notable among the more recent decisions to this effect is Bull v. Beiseker, 16 N. D. 290, 113 N. W. 870, and report- ed with an extended note, in 14 L. R. A. (N. S.) 514; Mygatt v. Coe, 147 N. Y. 456, 42 N. E. 17, a New York case; and Wallace v. Pereles, 109 Wis. 316, 85 N. W. 371, 53 L. R. A. 644, 83 Am. St. Rep. 898. In Bull V. Beiseker, supra, the court said : "The action was brought and the complaint framed upon the mistaken theory that the covenants contained in defendant's deed to Johnson were covenants running with the land, and therefore passed to Washburn by the deed from John- son to him. This probably would be true if any title or possession was transferred by such conveyances ; >but, nnHpr thp fartc allpgpH j^ 1-Tip c omplaint, neither title nor possession, actual or constructive, pass ed under the deeds, and hence there was nothing for the covenants t o r\ip with. - There, was a constructive eviction of the grantee immedi- ately upon the execution and delivery of the deed to Johnson; and a cause of action for breach of the covenants in such deed at once arose in his favor against the Beisekers to recover damages therefor; and the deed from Johnson to Washburn did not operate to assign to the latter such cause of action." And in Wallace v. Perles, supra, the Wisconsin court said: "We therefore hold th at where the record shows that the gr antrtr 1-|pH nn ti tle and no possession, and there is no proof that the grantee too k p ossession , the c ovenants of the grantor are personal to the grante e, an d are not transmitted to subsequent grantees by a mere convevan ce of the land." And, again, in Mygatt v. Coe, supra, we find : "It must be regarded as the law of this case t hat privity of estate is essential to carry cov e- n ants of warranty and quiet enjoyment to subsequent grantees in orde r t o support a right of action by them against the original covenanto r. when there is an eviction by paramount title. " These cases are fully supported by very many, if not all, of the preceding decisions on the same subject. The covenants usually found in deeds of conveyance of real prop- erty, are the subject of legislative enactment in many of the states. Our statute, section 1138, Rev. Civ. Code, reads as follows: "Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence runs with the land." Section 1139: "The last section in- cludes covenants of warranty, for quiet enjoyment, or for further as- surance, on the part of a grantor * * * ." But these statutes do not seem to have changed the rule that, in (jlJU_^' 7U DERIVATIVE TITLES (Part 2 o rder that the covena nt will run with tlie land so as to inure to th e benefit of a remote grantee, the covenantee must have received som e estate in the land to which the covenant could attach . It seems to be generally held that, where the covenantor delivers the possession of the land to his grantee and he, in turn, puts his grantee in possession, this constitutes a p rivity of estate sufficient to carry the covenant with the land. And it may be taken as true tliat the reason for the rule originated at a time when physical possession of land was the chief muniment of. title thereto. But this reason no longer exists. A person who has a ^rant nf land from the owner of tht^ fee hernmes t he absolute riwnpr thereof and is entitled to all the benefits that^c an be derived tlierefrom. even though neither of them was ever in jthe a ctual possession thereof. This being the case, why should it be nec- essary that actual^ as distmguished from constri ctive, po^ ession should be delivered in order to carry a covenant with the land when the cov- enantor was without title? It is for the purpose of prntpctino- fVip c ovenantee and his p ^rantees in their f j g ht- nf po ssession of the lan d, and to protect them ap ; -ainst defective title thereto that the covena ^^*' i'=' made._ The right of quiet enjoyment of a piece of land is its most val- uable attribute, and a covenant from a grantor that his grantee shall be protected in the quiet enjoyment thereof adds materially to the value of the land itself, and a material portion of the consideration paid for the grant may be, and as a rule is, paid because of the cove- nantee's expectation of the right of quiet enjoyment of the demised premises. I ^a perfect title is pa s^ sed to the grantee then he n eed neve r avail himself of the covenantin his deed, while, on the other h and, if it should develo p thnt th*^ ^'''v ^ nr ^ ntnr h ad no estate whatev er i n tlie p rpiriJQpg attempted to be conveyed, the grantee could not, ex - c ept as against his immediate covenantorr avail himself of the cnvp - nant. _ This, at least, is the logical conclusion to be drawn from the decisions holding that a remote grantee cannot recover upon a covenant unless the covenantor had som e estate in the land when the coven ant w as mad e. Some cases, notably Kimball v. Bryant, 25 Minn. 496, and Iowa Loan & Trust Co. v. Fullen, 114 Mo. App. 633, 91 S. W. 58, hold that, although a covenantor must have some estate in land at the time of making the grant to which covenants can attach in order to enable a remote grantee to recover on a breach of the covenant, yet, never- theless, such grantee, however remote, who is holding under said grant at the time of the assertion of, and eviction under, the para- mount title, may recover the damages occasioned by the lack of title. This is upon the ground that the covenant was broken as soon as made and at once ripened into a chose in action in favor of the covenantee, and that the transfer of the land by successive warranty deeds passed this cause of action along through the successive grantees until such time as an actual eviction by paramount title took place, when the party who suffered damage by reason thereof might enforce the cause Ch. 6) COVENANTS FOR TITLE 745 of action that accrued in favor of the first grantee against the original covenantor. Against this doctrine, this court is already committed. Hill V. City, 33 S. D. 324, 145 N. W. 570. We believe plaintiffs shou ld r ecover; but we think they should recover as upon tlie covenant itse lf, r ather than upon successive assig^r ^p^^^-g of a cause of action that ha d a ccrued in favor of some prior grantee . Under the theory adopted by the Missouri and Minnesota courts, unless the eviction take place and the action be commenced within the period prescribed by the stat- ute of limitations for bringing such action, then the right to recover will be barred by the statute, and the party who is holding under the grant at the time of the eviction and the one who suffers the real dam- age cannot reach the covenantor at all. Iowa L. & T. Co. v. Fullen, supra. (3) But, again, since it is held that a delivery of the possession of the disputed premises is necessary in order that the covenant of a grantor without title may inure to the benefit of his remote grantees, then the constructive possession of the grantee ought to be sufficient to carry the covenant. I n this case, while the Smiths acQiu'red no t itle t Q the land by virtue of their deed from the Robinsons, still they had the apparent title even as against Vesey himself. The county records showed that they had a perfect diain^of tjtl^, g n d. therefore, the Smi ths and th eir grantees rplaintinsinthis action^ as against the defem Japt shouCT'^ e held to have had constructive possession of the granted premises , and that plaintiffs are entitled to recover against the de- fendant" because of the eviction by Vesey. T his, of course, involv es t h^ doctrine of estoppel l^y deed; and we believe this to be a prop er /X^ /J c ase for the application of this doctrine . . ( I ^C-Aa-*--^ The rule of estoppel by deed is stated in 16 Cyc. 686, as follows : ^ ^- n " A person who assumes to convey an estate bv deed is estopped, a s ^^^''^''Tf^f**^ against the grantee, to assert anything in derogation of the dee(j . He AsJ-M will not be heard, for the purpose of defeating the title of the grantee . "''^A ^ to say that at the time of the conveyance he had no title, or that non e \\ p.assed by the deed : nor can he deny to the deed its full operation and effect as a conveyance. " Where a grantor represents himself as the owner of the fee to a piece of land and agrees that he will protect his grantee and assigns in their peaceful possession thereof, and it afterward develops that he was not the owner of the fee and cannot defend his grantees in their possession of the land, and they c ajl upon him to respond in damages, why sho uld he not be estopped from saying that he did not have, and convey the ~ \l V| / c onstructive possession^oF the land as he represented he Had and "lor /J^n^-A/-^ » wdiich he had received a valuable consideration , and that, therefor e. ^Rj^^ his covenant did not pass beyond his immediate grantee and that he is not liable to the party who has suffered by his broken covenant ? And why should the rule just quoted not apply? True, no case has been called to our attention where a covenantor has been held to be estopped by his deed from claiming that he had no ^i^C-^ 746 DERIVATIVE TITLES (Part 2 estate in the land, attempted to be conveyed, at the time he made the covenant, and thereby escape habiHty to a remote grantee who had been evicted; but neither has any reason been suggested why this should not be done ; and w e hold that the defendant is estop ped_by the covena nts in his intestate's deed TFom denying that his intestate pos- any estate in the land in question at the time the deed was m nde : anH thnt responde nt is entitled to rprnve r upon the broken cov e- nant.^ ' * ^ The judgment should be modified in regard to the amount of interest allowed respondents as herein indicated, and as so modified it is af- firmed. ANDREW V. PEARCE. (Court of Common Pleas, 1S05. 1 Bos. & P. N. R, 158.) Covenant. The declaration stated, tha t by indentu re, dated the 25th of February, 1764, P. Best, the Defendant's testator, d emise^ to on e T ohn Garland and his assigns a certain messuag e and tenemen t, com- monly known by the name of Lower Bofindle, in the county of Corn- wall, for the term of 99 years, at the y early^ rent of £4. per annum, covenanting that he, the said P. Best, at the time of the grant and_d e- mise, had in himself good, right, and lawful and absolute autho rity_to grant and demise the said premises ; and also for the qu iet enjo yment of the said John Garland, his executors, administrators, and assigns, during tlie said term, without the let, hindrance, molestation, or denial of him the said P. B., hiis heirs and assigns, and of all and every other person whatsoever ; that, by virtue of the said demise, th e said Jo hn Garland, on the 25tli of February, 1764, entered into the said pre m- ises and became possessed thereof, a nd that afterwards, viz. by deed pf the 22d of June, 1'791, he assigne d to one John Bennett, his execu- tors, administrators, and assigns the said demised premises for the residue of his, the said John Garland's, term therein; th at John Ben- ^ n ett accordingly entered , and afterwards, viz., by deed of the 2d of No- vember, 1801, as signed to the Plaintifif, his executors, administrato rs, and assigns the said premises for the remainder of the said term then to come and unexpired ; th at the plaintift' accordingly entered and was possessed thereof until ejected therelrom. The declaration then alleged, "that the said P. Best deceased, at the time of making the said indenture of lease, had not, n or had he. at a ny other_time whatsoever, any right, or title to the said de mised prem- i ses, with the appurtenances, or any party thereof, in him, t he said P. Best deceased, in his life time, or any authority whatsoever, whereby or by virtue whereof, he, the said P. Best deceased, might or could lease or demise the said demised premises, or any part thereof, with the 3 A portion of the opinion dealing with matters of damages is omitted. Ch. 6) COVENANTS FOR TITLE 747 appurtenances, or any part thereof, to the said John Garland, to hold the same, or any part thereof, to him the said John Garland, his ex- ecutors, administrators, or assigns, from the said 24th day of Febru- ary, 1764, for, and during, and unto the full end and term of 99 years from thence next ensuing, and fully to be complete and ended; and t hat after the _maki'^g' ^^ \\l^: '=^ gid demise by the said P. Best, decea^ d. and after the said Plaintiff became such assignee of the said demise d premises as aforesaid , and dur ing the continuance of the said term, to wit, on the 1st day of January, in the~yeaFof our Lord 1802, at Bodmin aforesaid, in the county of Cornwall aforesaid, t he said Thom- ^ . a s Pearce became and was lawfully and rightfully entitled to hav e WA^/f a nd enjoy the immediate possession of the said demised premises , ^ith ^9 t he appurten ances, under and by virtue of a title thereto, in oppo si- t ion to the said title of the said Plaintiff to the possession thereof ; a nd t he said Thomas Pearce being lawfully and rightfully entitled to t he s aid immediate possession of the said demised premises, with the ap- purtenances of the said Thomas Pearce, afterwards and while the said Plaintiff so was in possession of the said demised premises, with the appurtenances, and before the expiration of the said term of 99 years thereof demised by the said P. Best deceased as aforesaid, to wit, on, &c." pr oceeding to state an ejectment for the premises by T . Pearce, and judgment against the present Plaintiff, and writ of pos- session in consequence; and concluded that the said P. Best, deceased, in his life time, and the said T. Pearce, executor as aforesaid, since his death h ad rtot kept their covenant with the Plaintiff since he be - c ame assignee of the covenant made by the said P. Best, in his life time , with the said Tohn Garland and his assigns . The Defendant pleaded, "that the said P. Best, mentioned in the said declaration, at the time of making the said indenture of demise therein mentioned, and from thence until and at the time of his death hereinafter mentioned, was se ised in his demesne as of fee ta il male of and in the said tenements, with the appurtenances, mentioned in the said declaration and in the said indenture of demise, that is to say, to him and the 'heirs male of his body lawfully issuing, and being so seised thereof, he, the said P. Best, afterwards and before the making of the said supposed indenture of assignment between the said John Bennett and the said Plaintiff, also mentioned in the said declaration (to wit), on the 4th day of June in the year of our Lord 1794, at, &c., di ed so seised of such his estate of and in the said ten e ment with the a ppurtenances without heir m^ale of his body lawfully issuing: and so the said Defendant says that before the making of the said indenture of assignment between the said John Bennett and the said Plaintiff (to wit) on the said 4th day of June in the said year of our Lord 1794, upon the death of the said P. Best, the said term of years in the said tenements, with the appurtenances, granted by the said indenture of demise mentioned in the said declaration, and the estate and interest of the said John Bennett in the same tenements, ceased, and became and 748 DERIVATIVE TITLES (Part 2 were wholly void, ended, and determined." To tliis plea the Plaintiff demurred, and the Defendant joined in denjurrer. gy^ Sir James AIansfield, Ch. J. T his is an action of covenant, a nd y4^ fy /| th e declaration states that Peter Best in 1764 demised the premises in |X«^ II question for 99 years to Tohn Garland , and c ovenanted that he had - IaJ^ good right to make such demise, and that Garland should q uietly enjoy Jki^^ I! the premises during the said term; that Garland in 1'791 assigned to V Bennett, and Bennett in 1801 a ssigned to the Plaintiff, who was ejecte d by Thomas Pearce under a title superior to that of Peter Best . The plea states that Peter Best, at the time of the demise, was seised of the premises i n tail m ale, and before the assignment by Bennett to the Plaintiff, died so seised without heirs male of his body, w hereupon t he t erm of years ceased and determi ned. U pon these pleadings, it is c lear that Peter Best had no power to make a demise of these premises t o continue for 99 years if he should die without issue maj e ; 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 demurrer every fact is admitted ; it is clear therefore that at the time when Bennett assigned to Andrew. Be n- nett had no interest in the premises ;_.the lease is stated to have becom e absolutely void by the death of Peter Best without heir male . The lease then having become absolutely void, what could be the operation of the assignment by Bennett to Andrew? H e could neither assig n t he lease nor any interest u nder it because the lease was gone. What ^ yy right of any sort had Bennett? If any thing, it co uld only be a r ight m. Jk { o f action on the covenant, and that could not be assigned by law . A^ \L/^^*0^ A t he person who made the assignment had no interest in the premises, y(\/^ v-X) t he assignment itself could Jiave no operation . Consequently there is I no ground upon which the present action can be maintained, -and there- fore judgment must be given for the Defendant. Judgment for the Defendant WILLIAMS v. BURRELL. (Court of Common Pleas, 1845. 1 C. B. 402.) TiNDAL, C. J.* The material facts out of which the questions sent to us by his honour the Master of the Rolls have arisen, are very few. George O'Brien, Earl of Egremont, b eing tenant for life, with a -ieas- ing p_ower, _by indenture of lease, bearing date the 24th of March. 1B 05 , demise d to John Williams, the plaintiff^ for ninety-nine years, if thre e persons there in-named should so long live ; which lease, upon the death of the tenant for life was he ld to be voi d a s against the remainder- man, by the judgment of a court of law, on the ground that it was not made in due conformity with the leasing power. This lease contained in it a clause in the following terms ; viz. "And the said earl, for himself, his * A portion of the opinion only is printed here. Ch. 6) COVENANTS FOR TITLE 749 heirs and assigns, the said demised premises, with the appurtenances unto the said John WilHams, his executors, administrators, and assigns, under the rent, covenants , conditions, exceptions, and agreements be - f ore expressed, against all persons whatsoever lawfully claiming t he s ame, shall and will during the said term warrant and defend." And upon this state of facts the question is. wh ether the original lessee caiy/^ v r naintain covenant against the executors of the tenant for Hfe. upo rC ^ ) the clause of warranty above set forth . And a second question is then put to us, namely, whether in the case of another lease granted precisely under the same circumstances, and in the same form, the executors of the assignee of the original lessee can maintain such action. * * * As to the question arising on the second lease, we think that the e xecutor of the assignee of the lessee has the same right of s uiag_pn t liis covenant as the original lessee . In Spencer's Case, 5 Co. Rep. 16a, fourth resolution, it was held th at a covenant in law for title would pass with the estate : and th ere i s nei t her principle nor authority to shew that an express covenant , e ither for title or quiet enjoyment, will not equally pass, and be avail- a ble for the assignee of the lessee, or the executor of such assignee ^. And, although in Andrew v. Pearce, 1 New Rep. 158, it was held that nonaction was maintainable upon the (-nvenant for quiet enjoyme nt b y the assignee of the lessee against the executor of the lessor: ye t t hat was expressly on the ground that the lease had become absolutel v v oid bv the death of the- lessor before the assignment made to Xhe pl aintiff ; a fact which does not occur in the presenLtase." BEARDSLEY v. KNIGHT. (Supreme Court of Vermont, 1S32. 4 Vt. 471.) This was an action of covenant, and the declaration contained two counts. The first alleged that the defendant and one Elijah Hyde, de- ceased, on the 3d day of March, 1808, for the consideration of eighteen hundred dollars, by deed of that date, duly executed, acknowledged and recorded, according to law, conveyed to Ebenezer Hatch, his heirs and assigns, the undivided half of a certain piece or farm of land, lying in the town and county of Grand-Isle, to wit, the first di- vision lots drawn to the rights of Thomas Tolman, Samuel Herrick, and John Wood ; and that the said Knight and Hyde, in and by said 5 See Lewis v. Cook, 35 N. C. 193 (1851), whicli was as follows : A. and his wife joined in a deed to B. of tlie wife's land, which, because of a defect in execution, operated only as a conveyance of A.'s life estate. B. conveyed to X. "and his heirs" by deed with covenant of warranty. By levy of execution and sale thereunder the land came to P., who went into possession, and contin- ued therein until after the death of A., when he was evicted by the heirs of Mrs. A. P. then sued D., the administrator of B., for breach of the covenant -of warranty. A nonsuit of P. was held erroneous. 750 DERIVATIVE TITLES (Part 2 deed, covenanted to and with the said Hatch, his heirs and assigns, that they would warrant and defend the premises against all lawful claims and demands whatsoever ; that afterwards Hatch by deed dated November 20, 1812, for a valuable consideration, quit-claimed the south half of said premises to the plaintiff, including the south part of the aforesaid lot drawn to the right of John Wood ; by virtue of which the plaintiff entered into possession, and became seized and possessed of the premises, as assignee of the said Hatch; that Reuben Clapp, administrator of one Alexander Gordon, afterwards, on the 26th day of January, 1822, sued out a writ of ejectment against the plaintiff, demanding the seizin and possession of thirty six acres of the east corner of said lot, drawn to the right of John Wood ; and such pro- ceedings were had in said action, that in January, 1828, the said Clapp recovered judgment in said action against said Beardsley for the seizin and possession of the premises demanded, with one cent dam- ages, and his cost, taxed at $112.52; and afterwards took out a writ of possession, and by virtue thereof he entered upon, and took pos- session of, the demanded premises, and dispossessed said Beardsley of the same ; and averring that the title on which the said Clapp recov- ered was elder and better than the title derived from said Knight and Hyde by said Hatch, and independent of the same. In the second count the conveyance by Knight and Hyde to Hatch, was set out as in the first. It was then alleged that, on the 8th day of July, 1807, Knight and Hyde conveyed the undivided half of the prem- ises, to the plaintiff, by virtue of which conveyance the plaintiff en- tered into possession ; and after the execution of the deed by Knight and Hyde to Hatch, as before mentioned. Hatch also went into pos- session of an undivided half of the premises; whereby the plain- tiff and Hatch were seized as tenants in common, ahd so continued, until the 20th day of November, 1812, when they made partition of the premises, by which the plaintiff became seized and possessed of the south half thereof in severalty, and of thirty six acres on the south part of the lot drawn to the right of John Wood, and so continued seized and possessed, until the eviction by Clapp, as mentioned in the first count. The plaintiff claimed to recover of the defendant the value of the thirty six acres from which he had been evicted by Clapp, and all the cost and charges to which he had been subjected in defending the said action of ejectment. The defendant pleaded that he had kept and performed his cov- enants according to the form and effect of the said indenture of said covenant. On which plea, issue was joined. On the trial in the county court, the plaintiff insisted the burden of proof lay on the defendant to make good his plea. But the court decided that the plea was a general denial of all the material allegations in the declaration, and put the plaintiff on proof of every material fact alleged. The plaintiff then offered in evidence the deed set forth in his declaration from Knisrht Ch. 6) COVENANTS FOR TITLE 751 to Hatch, which was read without objection; and the deed from Hatch to himself, dated the 20th of November, A. D. 1812, acknowledged on the same day, and recorded on the 9th day of October, 1813. This deed had no seal affixed to the signature of the grantor, excepting a scroll or circle made with a pen, and the word "seal" written within it. The defendant objected to its admission, and insisted that it was not sealed, and, therefore, could not be given in evidence to the jury. The plaintiff insisted that it was sealed, and offered, in connection with it, parol evidence to prove, that he went into possession of the premises therein described, under it, in 1812, and continued in pos- session under it till 1829, when he was evicted as set forth in his dec- laration, and that whether the deed was sealed or not, was a question of fact for the jury. The court determined that the deed was not sealed, and that whether it was sealed or not, was a question of law for the court to try, and not the jury; and, therefore, excluded it. The plaintiff' then offered a quit-claim deed from Knight and Hyde to himself, dated in 1807, of one equal undivided half of the same premises included in the deed from Knight and Hyde to Hatch ; and tendered evidence to prove that the plaintiff, under his deed from Knight and Hyde, and Hatch, under his deed from the same, occu- pied said premises from 1807 to 1812, as tenants in common: that in 1812, Hatch and the plaintiff made a division of the premises, and con- tinued ever after to occupy and enjoy the same in severalty under said division; that by said division the land mentioned in the declaration was set apart to the plaintiff; and that he held and occupied the premises as his own, under said division, from 1812 till the time of the eviction, mentioned in the declaration. Which deed and parol evidence were objected to, and excluded by the court, who directed the jury to return a verdict for the defendant; which they accordingly did. To the several decisions of the court the plaintiff excejDted, and the cause was ordered to the Supreme Court. Williams, J. The plaintiff has declared against the defendant in covenant. The declaration contains two counts. The defendant pleads performance, and tenders an issue which is joined. It was considered by the county court that this plea put the plaintiff on proof of every material fact in his declaration. • The plaintiff contends, that, under this issue, his derivative title was not denied, nor the character in which he sued. But if the plea required the plaintiff to shew a breach of the covenant declared on, and this was not questioned, he must, to shew such breach, prove an eviction of some one holding under Hatch ; and this made it necessary to prove a conveyance from Hatch to him- self. The plaintiff does not sue as assignee, nor in the right of another, as an executor, or administrator, or assignee of a bankrupt, in which case his character as assignee would not be denied under the plea. But he sues as on a covenant made with him, and coming to him with the land, by virtue of a deed from Hatch. The eviction of the plain- tiff would be no breach of the defendant's covenant with Hatch, unless 752 DERIVATIVE TITLES (Part 2" plaintiff claimed title to the land through Hatch. Hence it was incum- bent on the plaintiff to show a conveyance from Hatch, and this brings in question the validity of the instrument which was offered as Hatch's deed to plaintiff. It seems that it was objected to, and excluded as not having been sealed.® * * * The instrument, therefore, offered in evidence as the deed of Hatch,, was not a deed or conveyance of land, as it wanted one of the essential requisites to constitute it a deed. The paper from Hatch to the plain- tiff', having been rightly excluded by the court, there is no other ground on which the plaintiff' can recover of the defendant on the covenants contained in the defendant's deed to Hatch. The argument that the plaintiff" was in possession, and, therefore, might avail himself of the covenant as running with the land, is wholly destitute of foundation. His possession, as against Hatch, may have been adverse, so that he was acquiring a title by the statute of limitations as against him ; but if so, it would be, at least, singular, if he could acquire a title as against Hatch by a trespass, and, at the same time, by the same tres- pass, acquire a right to Hatch's claim against the defendant on the cov- enants in his deed. Although a deed from Hatch to the plaintiff might under some circumstances be presumed, yet, as presumptions are made to quiet men in possession, I do not know that it has ever been con- tended before, that they would create a right of action on the deed presumed. A deed might be presumed to give a legal origin to a pos- session; but an instrument not under seal cannot be presumed to be a deed for the purpose of giving an action of covenant thereon, or an action of covenant on a deed farther back in the chain of title. It seems that the plaintiff had a quit-claim deed from the defendant and Hyde, dated 8th July, 1807, of one undivided moiety of the land in dispute. If he was not in possession under that deed, he was in with- out title, and can have no claim upon the defendant if he has not kept his covenant with Hatch, for the other moiety of the same premises. It is said the evidence on the second count was excluded by the court. This count appears to be decidedly bad ; and although the court may have erred in excluding the testimony altogether, and the regular .course might have been to have admitted the testimony, leaving the defendant to move in arrest, or bring his writ of error, yet this court would not, on that account, grant a new trial, when we should be un- der obligation to arrest the judgment thereon on account of the insuffi- ciency of the declaration. But it will be observed that notwithstanding the pleader in framing the declaration avoided any distinct reference to the instrument which purported to be a deed from Hatch to the plaintiff, which was excluded as not being sealed, yet, to avail himself of the covenant made with Hatch, and entitle himself to shew the eviction as a breach of that covenant injurious to him, he declares that 6 The portion of the opinion in which the court considered the sufficiency of the deed from Hatch to the plaintifC is omitted. Ch. 6) COVENANTS FOR TITLE 753' he was possessed of the part of which he was evicted, as assignee 6f Hatch. To support this count, therefore, it was necessary for him to show a legal assignment from Hatch, and if he failed to introduce a regular deed from Hatch to himself, the count would fail for want of proof. This count, therefore, as well as the other, depended upon the validity of Hatch's conveyance to the plaintiff; and that being ex- cluded, all other testimony was irrelevant, and was properly rejected. If neither Hatch nor his grantee were evicted from the premises, the plaintiff has not become liable on his covenant to Hatch. If the plain- tiff" was evicted from his undivided part, he is without remedy at law, as his title to an undivided moiety was nothing more than a quit-claim deed from the defendant and Hyde, on which he has not set up any claim; and his title to the other moiety was under a writing from Hatch which the Court consider as no legal conveyance. On every view which we have been able to take of the case, we can see no remedy for the plaintiff at law; and the judgment of the coun- ty court must be affirmed. Judgment affirmed.'^ ST. CLAIR V. WILLIAMS. (Supreme Court of Ohio, 1836. 7 Ohio, 110, pt. 2, 30 Am. Dec. 194.) This is an action of covenant reserved from the county of Ham- ilton. Williams, the defendant, conveyed a tract of land, with warranty, to Davis, in 1816. Davis afterward conveyed the same land to St. Clair, who died seized in 1820, leaving the plaintiff his widow, to whom the premises were set off as dower. She has been evicted by a re- covery in ejectment, under a paramount title, and she brings this action against Williams, upon the warranty in his deed to Davis, claim- ing that it passed with the land to her. Lank, J. The question arising in this case is, whether the right of action upon a covenant of warranty annexed to a conveyance in fee, passes to one who holds but an estate for life in the land. It is no sub- ject of doubt that an assignee is entitled to the benefits of all cove- nants running with the land. Backus' Adm'rs v. McCoy, 3 Ohio, 219, 17 Am. Dec. 585 ; King v. Kerr's Adm'rs, 5 Ohio,' 156, 22 Am. Dec. 777. Nor is it doubted where a covenant running with the land is divisible in its nature, as if the entire interest of separate parts of land pass to different individuals, that a right of action accrues to each party, to recover his proportion of the warranty. Van Home v. Grain, 1 Paige (N. Y.) 455 ; Astor v. Miller, 2 Paige (N. Y.) 78; Touchstone, 199; Co. Lit. 385, 386. But a plain distinction is made between the holder of a part of the land, and the holder of a part of the estate ; T See Deason v. Findley, 145 Ala, 407, 40 South. 220 (1906), ace Aig.Prop. — 48 754 DERIVATIVE TITLES (Part 2 the former may vouch as assignee, or bring warrantia chartae ; the lat- ter has the benefit of the warranty by aid prayer, or by the voucher of him who holds the remainder, Co. Lit. 385, a; 4 Dane, 51 ; Wood's Conveyancing, Z7Z. The same distinction is carried into the modern action of covenant. The assignee, upon whom is cast the benefit or the obHgation of covenants, is he who holds the whole estate or term. Doug. 183 ; 1 East, 502. These principles settle the present suit. The plaintiff could not vouch as assignee, nor have warrantia chartae under the ancient law, nor can she sustain an action of covenant, because she does not hold the whole estate. The right of action on the warranty passes to the heirs, and her remedy is by a new assignment of dower. Judgment for defendant.* LEWES V. RIDGE. (Court of Common Pleas, 1601. Cro. Eliz. 863.) Covenant. The defendant, being seised of land in fee, let it for life, remainder for life, rendering rent. He afterwards acknowledged a statute; and after that by indenture bargained and sold the rever- sion ; and covenanted with the bargainee, his heirs, and assigns, that it should be discharged within two years of all statutes, charges and incumbrances, excepting the estates for life. The statute is extended, and thereupon this reversion and rent was extended. The bargainee grants this reversion to the plaintifif, who, for not discharging of this statute, brings covenant. And all this matter being disclosed by the count, it was thereupon demurred. The question principally moved was, whether the plaintifif, as assignee, shall have benefit of this cove- nant made to the bargainee by the common law, or by the 32 Hen. Vni, c. 34? But because the covenant was broken before the plain- tifif's purchase, the land being then in extent, and so a thing in action, which could not be transferred over, it was adjudged for the defend- ant that the action was not maintainable against him. And here the Court held clearly, that the 32 Hen. VIH, c. 34, doth not extend to covenants upon estates in fee or in tail, but only upon leases made for life or for years, and therefore this assignee was out of the statute^ But for the other matter principally it was ad- judged ut supra.^ 8 See McClure's Ex'rs v. Gamble, 27 Pa. 288 (1856) ; White v. Whitney, 3 Mete. (Mass.) 81 (1841). 9 In Lucy v. Levington, 2 Lev. 26 (1671), the executor of the grantee sued the grantor for breach of a covenant for quiet enjoyment, broken during the life- time of the grantee. Held, the action was properly brought by the executor. Ch. 6) COVENANTS FOR TITLE 755 KINGDOM V. NOTTLE. (Court of King's Bench, 1813. 1 Maule & S. 355.) This action was brought by the plaintiff, as executrix of Richard Kingdon;' and the declaration stated, that by indentures of lease and release of the 11th and 12th of May, 1780, the defendant conveyed to R. Kingdon in fee a 4th part of certain lands therein particularly de- scribed, with a proviso for redemption upon payment of £450; and that the defendant covenanted for himself, his heirs, executors, and administrators, with R. Kingdon, that he the defendant was at the time of the execution of the indenture seized of and in the premises of a good and indefeasible estate of inheritance in fee simple: and that he had good right to convey the same to R. Kingdon and his heirs : and farther, that the defendant would from time to time, upon every reasonable request of R. Kingdon, his heirs or assigns, but at the de- fendant's costs, execute any farther conveyance for the purpose of assuring and confirming the premises to R. Kingdon, his heirs and as- signs ; and then the following breaches were assigned : first, tliat the defendant was not seized in fee at the time of the execution of the indenture : secondly, that the defendant had not at that time good right to convey : lastly, that the plaintiff, as executrix after the death of R. Kingdon, made a reasonable request to the defendant to execute an indenture between the defendant of the first part, the plaintiff of the second part, and Samuel Anstice of the third part, intended to be a release of the premises for suffering a common recovery for the better assuring and confirming the premises to the uses mentioned in the deed ; and tendered the same to the defendant for execution, but the defendant refused to execute. The defendant demurred to the first and second breaches, assigning for causes that they are assigned too generally, and are not suffi- ciently precise and certain, and that it does not appear that R. King- don sustained or could have sustained any damage by the said breaches of covenant, or either of them, nor that he was at any time interrupted or disturbed in his enjoyment of the premises conveyed to him by the defendant; nor that the said Elizabeth has or claims any interest in the premises, or that she is heir at law, or assignee of the same, or any part thereof. He demurred also to the last breach, assigning for causes, that it does not appear that the said Elizabeth hath or claims to have any interest in the premises, as assignee or otherwise, of R. Kingdon, nor to what person, or for whose use the deed of release was intended to enure, or why or for what reason Samuel Anstice was made a party thereto, nor that the said deed of release was a reasonable convey- ance or assurance in that behalf : and also for that the said last men- tioned breach of covenant cannot by law be joined in the same dec- laration with the other breaches of covenant in the said declaration as- signed: and also for that the said declaration as to the said breach 756 DERIVATIVE TITLES (Part 2 of covenant lastly assigned is in various other respects insufficient, in- formal, and defective. Joinder. IvORD EllEnborough, C. J. This is a case in which a person may have formed his opinion from what is to be found in a book of very excellent authority, I allude to Comyn's Digest, in which it is laid down generally that if a man covenant with B. upon a grant or conveyance of the inheritance, his executor may have covenant for damages upon a breach committed in the lifetime of his testator. But when that posi- tion comes to be compared with Lucy v. Levington, which is the authority there cited in support of it, it will be found not to be borne out by that case in its generality ; for in that case there was an evic- tion in the life-time of the testator, and therefore the damages in respect of such eviction, for which the action was then brought, were properly the subject of suit and recovery by the executor; and nothing descended to the heir. But in this case there is no other damage than such as arises from a breach of the defendant's covenant that he had a good title, and there is a difficulty in admitting that the executrix can recover at all, without also allowing her to recover to the full amount of the damages for such defect of title; and in that case a recovery by her would bar the heir ; for I apprehend the heir could not after- wards maintain another action upon the same breach. Had the breach here been assigned specially with a view to compensation for a damage sustained in the life-time of the testator, and so as to have left a subject of suit entire to the heir, this action might have gone clear of the diffi- culty, because then it would not operate as a bar to the heir; but framed as it now is, it seems to me that it would operate as a bar to his action. It is certainly a new point; and if I thought, that more author- ities could be found than what have been cited, which, however, from the industry of the gentlemen who have argued the case, is not very probable, I should have paused. But what has been cited from Co. Litt., and the other authorities, that the executor of a person who died seized of a rent could not maintain an action to recover the arrears incurred in the life-time of his testator, inasmuch as he could not represent his testator as to any contracts relating to the freehold and inheritance, is in a great degree an authority to show that in the pres- ent case the executrix does not stand in a situation to take advantage of this breach of covenant. Therefore on the principle of what is here laid down, and in the absence of any damage to the testator, which, if recovered, would properly form a part of his personal assets, I do not know how to say that this action is maintainable. LE Blanc, J. This action is brought by the executrix to increase the personal estate of the testator. The difficulty arises from its being assigned as a breach of covenant in the life-time of the testator. The breach assigned is in not having a good title. But how is that breach shown to have been a damage to the testator. It is not alleged that the estate was thereby prejudiced during the life-time of the testator; and Ch. 6) COVENANTS FOR TITLE 757 if after his decease any damage accrued, that would be a matter which concerns the heir. The distinction which attends real and personal cov- enants with respect to the course in which they go to the representa- tives of the person with whom the covenants are made, is a clear 'one; real covenants run with the land, and either go to the assignee of the land, or descend to the heir, and must be taken advantage of by him alone; but personal covenants must be sued for by the exec- utor. Now this is a covenant on which after one breach has been assigned and a recovery had thereon, the party cannot again recover. It is not like a covenant for not repairing, for a breach of which dam- ages may be recovered now, and again hereafter, and so toties quoties ; although even in that case there is always a difficulty in apportioning the damages. But here no breach from which a damage accrued to the testator is stated at all. Yet the action is brought to increase the personal estate, which belongs to the executor ; when the estate itself, such as it is, has come to the heir. Bayle;y, J. The testator might have sued in his life-time ; but hav- ing forborne to sue, the covenant real and the right of suit thereon, devolved with the estate upon the heir. If this were not so, and the executrix was permitted to take advantage of this breach of covenant, she would be recovering damages to be afterwards distributed as per- sonal assets, for that which is really a damage to the heir alone ; and yet such recovery would be a complete bar to any action which the heir might bring. The case of Lucy v. Levington struck me as a strong authority for the defendant : because in that case it appears there was an actual damage accruing to the testator by the eviction, whereby he was deprived of the rents and profits during his life, and of course the personal estate was so far damnified. There, as I have before observed, if the executor could not have sued, no other person could, because the testator having been evicted, there could be no heir of the land, and that was given as a reason why the action was holden to be maintainable. Per Curiam. Judgment for defendant. KINGDON V. NOTTLE. (Court of King's Bench, 1815. 4 Maule & S. 53.) <» Covenant by the plaintiff as devisee of Richard Kingdon; and the plaintiff declares that by indentures of lease and release of the 11th and 12th of May, 1780, the defendant conveyed to R. Kingdon in fee a fourth part of certain lands therein particularly described, with a pro- viso for fedemption upon payment of £450; and that the defendant covenanted for himself, his heirs, executors, and administrators, with R. Kingdon, that he the defendant was at the time of the execution of the indenture seized of and in the premises of a good and indefeasible 758 DERIVATIVE TITLES (Part 2 estate of inheritance in fee-simple; and that he had good right to convey the same to R. Kingdon and his heirs ; and then the plaintiff avers that R. Kingdon, on the 3d of May, 1791, duly made his will, &c. and thereby devised the same premises to her in fee, and died seised, and that she (the plaintiff) entered into the premises, and became and was and continually hath been possessed thereof, and seized of and entitled to all such estate and interest of and in the same as R. Kingdon had in his lifetime, and at the time of his death, and assigns for breach, 1st, That the defendant, at the time of the execution of the indenture, was not seized, &:c. ; 2dly, That he had not good right to convey to R. Kingdon and his heirs, &c. And so the plaintiff says, that by reason thereof the premises are of much less value, to wit, less by £2000. to the plaintiff than they otherwise would be, and that she hath not been able to sell, and hath been prevented and hindered from selling the same, for so large a price or so beneficially and advan- tageously as she otherwise might have done. And so she saith that the defendant hath not kept his covenant so made with R. Kingdon, but to keep the same with R. Kingdon in his lifetime, and the plaintiff, since his death, hath wholly refused. Demurrer assigning for cause, Ist^ That it appears by the declara- tion that the supposed breaches of covenant therein assigned were committed in the lifetime of R. K., before tlie plaintiff had any estate or interest in the premises ; and also, that it does not appear by the declaration that R. K. was at any time disturbed or interrupted in the enjoyment of the premises by the defendant or any other person, or sustained or could have sustained any damage by the same supposed breaches of covenant or either of them, and also for that it is not al- leged that the plaintiff hath at any time since the death of R. K. bfeen interrupted or disturbed in the enjoyment of the premises, or any part thereof, or hath sustained any damage from the supposed breaches of covenant or either of them ; and also that it does not ap- pear that any person hath refused to purchase the premises on ac- count of the supposed breaches of covenant, and also that the allega- tions that the premises are of much less value than they otherwise would be, and that the plaintiff hath not been able to sell, and hath been prevented and hindered from selling the same for so large a price or so beneficially and advantageously as she otherwise might have done, are too general, and do not give the defendant sufficient notice of the supposed damage. Lord Ellenborough, C. J. The rule with respect to the executor's right to sue upon breaches of contract made with the testator was con- sidered in the former case of Kingdon v. Nottle as subject to some qualification; and in a still more recent case, [Chamberlain v. William- son, 2 M. & S. 408,] it was considered that he could only Recover in respect of such breach as was a damage to the personal estate. But here the covenant passes with the land to the devisee, and has been broken in the time of the devisee, for so long as the defendant has Ch. 6) COVENANTS FOR TITLE 759 not a good title, there is a continuing breach and it is not like a cove- nant to do an act of solitary performance, which, not being done, the covenant is broken once for all, but is in the nature of a covenant to do a thing toties quoties, as the exigency of the case may require. Here, according to the letter, there was a breach in the testator's life- time ; but according to the spirit, the substantial breach is in the time of the devisee, for she has thereby lost the fruit of the covenant in not being able to dispose of the estate. Le Blanc, J. If the covenant is to cease with the breach of it, then if it be broken, and the covenantee die immediately after, the cove- nant will be gone; and yet the injury arising from the breach would accrue altogether to the devisee. Dampier, J. This is a covenant which runs with the land ; but if it may be broken but once, and ceases eo instanti tliat it is broken, how can it be a covenant which runs with the land? Fe,r Curiam. Judgment for the plaintiff.^* MITCHELL V. WARNER. (Supreme Court of Errors of Connecticut, 1825. 5 C6nn. 497.) This was an action on the covenants of warranty in a deed of land. The plaintiff declared, that the defendant, Curtis Warner, on the 30th of May, 1817, for the consideration of $1500, by his deed duly ex- ecuted, granted and sold to George Welton a certain piece of land in said deed described as lying in Roxbury, on Jack's brook, .containing two acres, with a dwelling-house, clothier's works, &c. standing there- on, bounded South on Roswell Warner's land, &c. ; that in and by said deed, the defendant did for himself, his heirs, executors and ad- ministrators, covenant with said Welton, his heirs and assigns, that at and until the ensealing of said deed, he was well seised of the prem- ises as a good indefeasible estate in fee-simple, and that he had good right to bargain and sell the same, in the manner and form as was in said deed by him before written, and that the same was free from all incumbrances ; that the defendant, in and by said deed, did cove- nant and bind himself and his heirs forever to warrant and defend said granted and bargained premises to the said Welton, his heirs and assigns, against all claims and demands whatsoever; that on the 7th of March, 1822, Welton and the defendant, by quit-claim deed, by them executed, for a valuable consideration, released to the plaintiff the same land, buildings and privileges, which the defendant had con- veyed to Welton, by the first mentioned deed, and the plaintiff became 10 Ace. : King v. Jones, 5 Taunt. 418 (1814), where ttie covenant sued on by tlie heir of the grantee was for further assurance. The grantee in his lifetime had called upon the covenantor to levy a tine, Avhich request had been denied. But see Spoor v. Green, L. R., 9 Ex. 99 (1874) ; Turner v. Moon, [1901] 2 Ch. 825. 760 DERIVATIVE TITLES (Part 2 vested with such right and title thereto as Welton had acquired, and was the assignee of all the covenants in the defendant's deed to Wel- ton, and had good right to take benefit thereof. Breaches of these covenants were then assigned as follows: That at the time when the defendant made and executed his deed to Welton, he, the defendant, was not well seised of the premises, as a good in- defeasible estate in fee-simple, and had not good right to bargain and sell the same, in manner and form as stated and set forth in said deed, and the same was not free from all incumbrances; that the defendant has not kept and performed his covenant to warrant and defend the premises to the plaintiff, but has broken the same, for that long before and on the 30th day of May, 1817, and at the time when the defendant made, executed and delivered his deed to Welton, one Roswell Warner was well seised and possessed, in his own right in fee-simple, of the right and privilege of turning the water of Jack's brook in said deed mentioned, (and which brook or stream of water runs through and upon said land, and was, at the time of the convey- ance by the defendant to Welton, and ever since has been, of great use in carrying on the business of a clothier's shop in said deed described, also of great value and use in carrying a carding-machine and other water works, *which the plaintiff has, since he took tlie deed from Welton and the defendant, erected on said land, and by said stream,) from a certain dam, which had been previously erected across said brook upon said land, on to the meadow of said Roswell Warner be- low, so much thereof as should be necessary for the purposes of wa- tering the same ; that on the 1st of April, 1822, said Roswell Warner, by virtue of such right and privilege, entered upon said land, and di- verted the water from said stream, at said dam, and turned it upon his said meadow, to water the same, and has ever since used said stream for tliat purpose; by means whereof, the plaintiff has wholly lost the benefit of said stream, and the use of said clothier's shop, carding machine and other water-works thereon; and so the said Roswell Warner had disseised and dispossessed the plaintiff of said water-works and of tlie benefit of said stream. The defendant pleaded, that at the time of executing said deed to Welton, he, the defendant, was well seised of the premises in said deed described, and had good right to convey tlie same, as in said deed set forth ; that the premises were free from all incumbrances whatsoever ; and that the defendant has warranted and defended the premises to the plaintiff against all claims and demands, according to the form and effect of said deed, and of the several covenants therein contained. On this plea issue was joined. On the trial of the cause at Litchfield, February term, 1824, before Hosmer, Cli. J., the plaintiff, after proving the deeds mentioned in the declaration, adduced evidence to prove the right of Roswell Warner to turn the water of Jack's brook on to his own land, and the exercise of that right to the plaintiff's damage, which constituted the only Ch. 6) COVENANTS FOR TITLE 761 breaches relied upon of the covenants in the defendant's deed to Wel- ton. To the competency, as well as to the relevancy of tliis evidence, the defendant objected. The Chief Justice, in his charge to the jury, expressed the following opinion : "First, as to the covenant of seisin. The facts adduced in evidence did not prove it to have been broken; the right claimed to exist in Roswell Warner being an incorporeal hereditament only, and like a right of way or of turbary, not any part of the freehold, but perfectly compatible with the covenant of seisin, on which the plaintiff has de- clared. "Secondly, as to the covenant against incumbrances. The declara- tion having alleged, by way of breach, that the premises granted 'were not free from all incumbrances,' and nothing more, under this nega- tive averment, without any specification of the nature of the incum- brance complained of, the proof offered was inadmissible. It should have been definitely set forth, to appraise the defendant of its nature, and give him the requisite information to prepare himself for a de- fence. Further; the actual exercise of the right of turning water from Jack's brook, by Roswell Warner, was not an incumbrance war- ranted against; but the incumbrance consisted in the incorporeal her- editament, viz. the right of turning the water; the covenant, from its nature, being broken instantaneously, on the delivery of the deed, or not at all. And if the exercise of the right were an incumbrance, it was not alleged to be so in breach of the covenant aforesaid. "Thirdly, as to the covenant of warranty. The facts stated, by the plaintiff, if proved, did not amount to an eviction in breach of the aforesaid covenant; but if they were established, by the evidence, the jury must find for the plaintiff, and leave the defendant to his legal remedy, the facts appearing on the record. "Fourthly, as to the damages. As no breach of the covenant of war- ranty was alleged, but of a disturbance only, the jury must give the plaintiff reasonable damages for the actual injury." The jury returned a verdict for the plaintiff, with twenty dollars damages. The defendant then moved in arrest of judgment, for the insufficiency of the declaration; and the court arrested judgment on that ground. To obtain a reversal of the latter decision, the plaintiff brought a writ of error. He also moved for a new trial, on the ground of a misdirection. HosM^R, Ch. J. The case made by this motion, presents two ques- tions for determination. The first is, whether the plaintiff, claiming to be the assignee of the covenant of seisin, can maintain an action on that covenant. This covenant, from its nature, is broken instantaneously on the de- livery of the deed, or it is never broken. It runs in the words of the present tense, and asserts, that the grantor is well seised. Now, if he is well seised according to his covenant, the agreement is fulfilled; and if he is not well seised, the covenant is false, and immediately 762 DERIVATIVE TITLES (Part 2 broken. It follows from this, that it is a personal covenant, which, most clearly, never runs with the land, and that the grantee, in whose time the breach existed, can alone sue upon it; for, after a breach the cause of action can never be assigned. It would be the assignment of a chose in action, which the common law will not permit. That the covenant of seisin, if false, is broken as soon as it is made, ap- pears from Shep. Touch. 170; from Bickford v. Page, 2 Mass. 460; from Marston v. Hobbs, 2 Mass. 437, 3 Am. Dec. 61 ; from Bennett V. Irwin, 3 Johns. (N. Y.) 365; from Abbott v. Allen, 14 Johns. (N. Y.) 253; from Greenby et al. v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379; from Pollard et al. v. Dwight et al., 4 Cranch, 430, 2 L. Ed. 666; from 1 Swift's Dig. 370; and from Mitchell v. Hazen, 4 Conn. 495, 10 Am. Dec. 169. From its nature, it does not run with the land, as none but real covenants do ; and these are always sus- pended on some act posterior to the delivery of the deed. Hence, as I have said before, having been broken, the covenant has become a chose in action, and therefore cannot be assigned. 1 Swift's Dig. 370. In Bickford v. Page, 2 Mass. 455, it was said by the court: "This cove- nant being broken before the release, was, at tliat time, a mere chose in action, and unassignable." The court, in the case of Greenby & al. v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379, determined, that the assignee of a covenant of seisin could not recover. The opinion was delivered by Spencer, J., in which he says: "Choses in action are incapable of assignment at the common law ; and what distinguishes these covenants, broken the instant they were made, from an ordinary chose in action? The covenants, it is true, are such as run with the land ; but here the substratum fails, for there was no land whereof the defendant was seised, and of consequence, none that he could alien : the covenants are, therefore, naked ones, uncoupled with a right to the soil." The same point was adjudged as far back as the reign of Queen Elizabeth, in Lewes v. Ridge, Cro. Eliz. 863 ; and the case, so far as I can find, has never been overruled. The principle settled in that case, was this ; that an assignee shall not have an action upon a breach of covenant before his own time. The same principle was recognized in Marston v. Hobbs, 2 Mass. 439, 3 Am. Dec. 61 ; in the determina- tion of which case, it was said by Parsons, Ch. J., when delivering the opinion of the court ; that "no estate passed, to which these covenants (i. e. of seisin and right to convey) could be annexed, because in fact broken before any assignment could be made, they were choses in ac- tion, and not assignable." In Com. Dig. tit. Covenant, B. 3, it is as- serted, that "covenant does not lie by an assignee, for a breach done before his time." It cannot run with the land ; for nothing having been conveyed, what land is there for it to run with ? To the same ef- fect is Lucy v. Levington, 2 Lev. 26, s. c. 1 Vent. 175, in which it was decided, that for a breach of the covenant of quiet enjoyment in the testator's time, the executor was authorized to recover; and of his Ch. 6) COVENANTS FOR TITLE 763 Opinion was that eminent judge Sir Matthew Hale. Similar doctrine is to be found in the Digest of Baron Comyns, tit. Covenant, B. 1. In relation to principles so well established, one or two modern decisions in Westminster-Hall in opposition to them, however they might there be regarded, ought not here to be considered as of any autliority. Such decisions have been cited. The first of them is the case of Kingdon, Ex'r v. Nottle, 1 Mau. & Selw. 355. The defendant had conveyed to Richard Kingdon, the testator, certain property, and covenanted that he was seised of it, and had good right to convey. It was averred as a breach, tliat he was not seised of the premises ; and the court adjudged, that the executor could not sue on the covenant, without shewing special damage to the testator, but tliat the heir might. It was said by Lord Ellenborough, that "the covenant, it was true, was broken, but that there was no damage sustained in the tes- tator's life-time." To this observation of that learned and able judge I cannot subscribe. The covenant being broken the instant it was made, the damage, most obviously, was the whole consideration paid ; and I am at a loss to conceive what other or furtlier dam.age could arise. In the surrounding states, as well as in our own, it is unquestionably established, that the damage is the consideration paid ; and that tliis is Immediate on the delivery of the deed. This, then, is the first ob- jection to the determination, that whatever may be the law of West- minster-Hall, the damage, in the case alluded to, is justly considered as not nominal, but real, and indeed all that the party can experience. It is the whole consideration paid. This principle alone shews, that the determination in Kingdon v. Nottle is inapplicable to us ; and it likewise authorizes the assertion, that Lord Ellenborough and his as- sociates, had they resided in Connecticut, and there pronounced their opinion, would have decided the case before them differently from what they have. To the determination in Kingdon v. Nottle there is a sound objec- tion. It is opposed to principles, uniformly, and for centuries, estab- Hshed in Westminster-Hall. It was said by Lord Ellenborough, in the case alluded to, that "if the executor could recover nominal dam- ages, it would preclude the heir, who is the party actually damnified, from recovering at all !" The force of thfs reasoning depends entirely on the assertion tlnat the heir is "the party actually damnified ;" and if this is an incorrect position, the argument wholly fails. Now, it is not true, that the heir is the party damnified. The damage arises en- tirely by the breach of the covenant in the life-time of the testator; and the testator is the only person, who receives damage. Thus were all the determinations before the last mentioned decision. To this ef- fect was Lewis v. Ridge, Lucy v. Levinton, and the law as laid down in Comyn's Digest; and not a case or Dictum was there to the con- trary. Indeed, the admission of Lord Ellenborough, that the cove- nant was broken in the life-time of the testator, most conclusively 764 DERIVATIVE TITLES (Part 2 shews, that the heir was not damnified. His own damage must result from his title to the land, and not from the covenant broken, to which he was no party. Now, as to tlie land, the heir never had title; nor had his ancestor. The complaint is, that the grantor was not seised, and had conveyed no title. How, then, is it possible, tliat the heir should inherit land, to which his ancestor had no title? If, then, he had no title to the estate supposed to be conveyed, and he was no party to the covenant, and the breach happened before his ancestor's death, what is the ground of his claim ? In my opinion, none. On tlie other hand, as the covenant was broken in the testator's life-time, and the damage resulting from the breach was due to him; after his death, his executor, standing in his place, had the right of suit. For the principle is incontrovertible, that where the testator can maintain cove- nant in his life-time, on a cause of action then existing, his executor may support the same action after his death. 1 Swift's Dig. 371 ; Toll. Ex. 158, 432. Another writ of covenant was brought by Kingdon, as devisee, against Nottle, 4 Mau. & Selw. 53, upon the covenant of seisin be- fore mentioned, on the ground tliat the covenant run with the land, and that the breach happened to the devisee. Consistently with the former determination, the court decided in favour of the plaintiff. It required some ingenuity to sustain an action on a covenant, for a breach happening in the time of the testator, before the devisee (the plaintiff) could have any interest in the covenant ; and more especially, as no special damages were laid. For it was not stated in the case, that the plaintiff was, at any time, interrupted or disturbed in the en- joyment of the premises; or that he sustained any damages, by the breach of the covenant, in the testator's life-time. Accordingly, this point was met, by Lord Ellenborough, who said : "The covenant passes with the land to the devisee, and has been broken in the time of the devisee; for so long as the defendant has not a good title, there is. a continuing breach, and it is not like a covenant to do an act of soli- tary performance, but it is in the nature of a covenant to do a thing toties quoties, as the exigency of the case may require." From this opinion I am compielled to dissent in omnibus. First, I affirm, that the novel .idea attending the breach in the testator's life- time, by calling it "a. continuing breach," and therefore a breach to the heir or devisee at a subsequent time, is an ingenious suggestion, but of no substantial import. Every breach of a contract is a continuing breach, until it is in some manner healed ; but the great question is, to whom does it continue as a breach ? The only answer is, to the per- son, who had title to the contract, when it was broken. It remains, as it was, a breach to the same person, who first had a cause of action upon it. If it be anything more, it is not a continuing breach, but a new existence. In the next place, I assert, that it is like a covenant to do an act of solitary performance ; and for this plain reason, that It is, in its nature, a covenant for a solitary act, and not a successive Ch. 6) COVENANTS FOR TITLE 765 one. If the covenant is broken, that is, if the grantor was not seised, it is infracted to the core ; and a second supposed breach is as futile as the imaginary unbroken existence of a thing dashed in pieces. It has no analogy to a covenant to do a future act, at different times, Avhich may undergo repeated breaches. It has no f uturition ; and can- not be partly broken and partly sound; but the grantor is seised, or not seised ; and therefore, the covenant is inviolate, or violated wholly. Not further to pursue the subject, I remark, that, in my judgment, the case of Kingdon v. Nottle may justly be said to authorize the assign- ment of a chose in action by devise ; a supposition as unfounded as it is novel. 1, therefore, conclude, that the determinations in the above men- tioned cases of Kingdon v, Nottle, are against the ancient, uniform and established law of Westminster-Hall; against well settled princi- ples and decided cases in the surrounding states; and that the judges pronouncing them, would have been of an opinion different from the one expressed, had they recognized the principle here well established, that the breach of the covenant of seisin is, in its nature, total, and the measure of damages the whole consideration money paid for tlie land. As a consequence, I am of opinion that the plaintiff cannot sustain his action on the covenant of seisin. 2. The next question relates to the covenant of freedom from incum- brances. The deed of the defendant to George Welton contains a covenant of this description ; and the plaintiff claims title to the covenant, and a right to recover for a breach of it, by virtue of a deed of quit-claim from the defendant and Welton. Without a further statement of fact, it is sufficient to remark, that the plaintiff has no right to re- cover for the breach of this covenant; and if he had, no breach of it is assigned. First, he has no title to the covenant of freedom from incumbrances, nor right to recover for the breach of it. His only claim is founded on the principle, that this covenant runs with the land. In opposition to this claim, I observe, that the covenant above-mentioned was per- sonal, and not a real covenant; that it was broken in the testator's life-time, and could not run with the land, — a peculiarity attending real covenants only; and of consequence, that George Welton is the only person who can sue on this unassignable contract. This covenant is classed, by the late Chief Justice Swift, (in the first volume of his Digest, p. 370,) with the covenant of seisin and of good right to convey ; and in relation to them all, he correctly says : "These covenants must be all broken at the time of executing the deed. or they never can be; for if at that time, the grantor is not well seised of the premises, as an indefeasible estate, or if he had no right to sell, or if any incumbrance existed, then the covenants are broken. But if the grantor is seised, has right to sell, or there are no incum- brances at the time of making the deed, then these covenants can never 766 DERIVATIVE TITLES (Part 2 be broken ; for no subsequent act can be done, by the grantor, which will amount to a breach of them ; as he can do no act, that will affect or incumber tlie estate. These covenants, of course, cannot be real covenants ; for being broken at the instant of their creation, they are choses in action, and cannot be assigned. The distinguishing feature of the real covenant, is, that it may be broken at a future time ; and it is this quality, which renders it assignable ; but it must be assigned be- fore it is broken; for when once broken, the right to recover dam- ages, is a chose in action, which cannot be assigned." With these observations, I entirely concur. The fundamental ques- tion, on which the whole doctrine depends, is, when is tlie covenant of freedom from incumbrances broken? It is a covenant for a fact, ex- isting or said to exist, not in future, but in prsesenti; at the moment when the deed is delivered. The phraseology of the covenant is, that the premises are free from incumbrances ; not that they shall in fu- ture be free ; just like the expression the grantor is seised, and has good right to convey." If the covenant be true, it can never be brok- en; if it be false, it is broken immediately, in which event it is a chose in action, and cannot be assigned. The doctrine contended for was adjudged, by the supreme judiciary of Massachusetts, in Prescott v. Trueman, 4 Mass. 627, 3 Am. Dec. 246, and by the supreme court of New York, in Delavergne v. Norris, 7 Johns. (N. Y.) 358, 5 Am. Dec. 281.12 Secondly, no breach of the covenant in question has, by the plain- tiff, been assigned. The averment is merely this — tliat the estate "is not free from all incumbrances." It is sufficient to say, that the law requires the incumbrance to be specially named and set forth ; or the defendant will always be taken by surprise. Incumbrances, in their nature, are numerous. A mortgage, a way, a right to dig turf, to pasture cattle, or to have dower assigned, and in short, an easement of any kind, is an incumbrance, because it is a load or weight on the land, and must lessen its value. Prescott v, Trueman, 4 Mass. 630, 3 Am. Dec. 246. It is opposed to the fundamental principles of plead- ing, (which are to inform the court, the jury, and, above all, the party, by the altercations in writing) to authorize a general allegation that there are incumbrances, without declaring what they are. The point is settled, by first principles, and he is too clear for controversy. In Marston v. Hobbs, 2 Mass. 433, 3 Am. Dec. 61, it was said, by Chief Justice Parsons, that the breach of the covenant against incumbrances, like that for quiet enjoyment, must be specially assigned, shewing its nature, and the interruption complained of. The same point was ad- 11 See Hall v. Dean, 13 Johns. (N. Y.^ 105 (1S16); Post v. Campau, 42 Mich. 90. 3 N. W. 272 (1879). But see Guerin v. Smith, 62 Mieh. 3G9, 2S N. W. 906 (18S6). 12 Cf. Dehority v. Wrijrht, 101 Ind. .382 (1885); Worley v. Hineman, 6 Ind. App. 240. 3.3 N. E. 2G0 (INO.Jt ; Security Bank of Minnesota v. Holmes, 65 Minn. 531, 68 N. VV. 113, 60 Am. St. Rep. 495 (1S!)6). .See Richard v. Bent, 59 111. 38, 14 Am. Rep. 1 (1871), contra. Ch. 6) COVENANTS FOR TITLE 767 judged, by the same court, Bickford v. Page, 2 Mass. 455 ; and in De Forest v. Leete, 16 Johns. (N. Y.) 122, it was said, by the supreme court of New York, that under a general assignment of a breach of the cove- nant against incumbrances, the plaintiff cannot give evidence of his having bought in an incumbrance, because it was not specifically al- leged in the declaration; and for the admission of such evidence, a new trial was granted. The charge of the judge to the jury, in this case, is free from ex- ception. The covenant in question, as was said by him, is broken in- stantaneously, if ever ; and under the negative averment is not free from incumbrances, the jury were correctly instructed, that proof of a particular incumbrance was inadmissible, because it should have been set forth specifically, to apprize the defendant of its nature, and give him the means of preparation for his defence. Peters, Brainard and Bristol, JJ., were of the same opinion. New trial not to be granted.^* SCHOFIELD V. IOWA HOMESTEAD CO. (Supreme Court of Iowa, 1S71. 32 Iowa, 317, 7 Am. Kep. 197.) Action upon the covenants of a deed for lands. Trial to the court without a jury, and judgment for plaintiff. Defendant appeals. Beck, J. I. The counsel of the respective parties agree that the action is based upon the covenant of seisin, which is sufficiently expressed in the deed. As a defense, the answer alleges that, prior to the commencement of the action, plaintiff, for value, sold and con- veyed a part of the lands to another, and that the covenant declared on passed with the land, so far as the contract covered the same, to the purchaser from plaintiff, and that recovery in this action for the land so conveyed is barred. To this defense a demurrer was sus- tained. The question thus presented for our determination is this: Does the covenant of seizin run with the land? We are fully aware of the discord of authorities upon this ques- tion, and that a great majority of the American cases hold the cove- nant to be in prsesenti, and that it is broken, if at all, when the deed is delivered, and that the claim for damages thereby becomes personal in its nature to the grantee, and is not transferred by a conveyance to a subsequent grantee. But in England the rule prevails that the covenant runs with the land, and recovery for a breach thereof may be had by the assignee of the grantee in the deed. Kingdon v. Not- tle, 1 Maule & Selw. 355 ; 4 Maule & Selw. 53 ; King v. Jones, 5 Taunt. 418; 4 Maule & Selw. 186; 1 Smith's Lead. Cases, Am. notes to Spencer's Case, p. 150; 4 Kent's Com. 472; 1 Washburn on Real Prop. 649. 13 See Collier v. Gamble, 10 Mo. 467 (1847) ; Cole v. Kimball, .52 Vt. 6.S9 (18S0) ; Peters v. Bowman, 98 U. S. 56, 59, 25 L. Ed, 91 (1878) ; Clark v. Swift, 3 Mete. (Mass.) 390 (1841). 768 DERIVATIVE TITLES (Part 2 The English doctrine has been adopted, and the rule in Kingdon V. Nottle, followed by the supreme courts of Ohio and Indiana/* with the modification, however, in Ohio, that when the grantor has neither title nor possession, and is therefore unable to transfer either by his deed, the covenant is broken as soon as made, and becomes a mere right of action which is not transferred by a subsequent conveyance of the land. Backus' Adm'rs v. McCoy, 3 Ohio, 211, 17 Am. Dec. 585 ; Foote v. Burnet, 10 Ohio, 317, 36 Am. Dec. 90; Devore V. Sunderland, 17 Ohio, 52, 49 Am. Dec. 442; Alartin v. Baker, 5 Blackf. (Ind.) 232. A similar rule, applicable to covenants against incumbrances, for- merly prevailed in Massachusetts, but has been abandoned. Wyman V. Ballard, 12 Mass. 30+; Sprague v. Baker, 17 Mass. 586. A like doctrine is recognized in South Carolina. Brisbane v. Mc- Crady's Ex'rs, 1 Nott & McCord, 104, 9 Am. Dec. 676. The English rule is commended to us by reason and justice, and Chancellor Kent, while condemning the reasons upon which it is supported in Kingdon v. Nottle, admits that the American doctrine is supported upon a "technical scruple," and assigns the most con- clusive reasons in support of the opposite English rule, 4 Kent, 472. The object of all covenants in conveyances of lands, relating to their title or their enjoyment, is to secure indemnity to the party entitled to the premises in case he is deprived of them. The sub- sequent vendee, in the language of Kent, "is the most interested and the most fit person to claim the indemnity secured by them (the cove- nants), for the compensation belongs to him as the last purchaser and first sufferer." The American rule will operate oppressively in all cases where the land has been subsequently conveyed by the grantee, either to- ward the grantor or subsequent purchaser. If the purchaser is evicted he ought to receive the indemnity secured by the covenant, for he is not only, as is said by Kent, the first sufiferer, but the only sufferer in every instance, except when he has not paid for the land. When the grantee, under the deed containing the covenant, has sold and received pay for the land, it would be gross injustice to permit him to recover, for he would not in that case sustain damages. But under the rule, to which we are now objecting, the grantee may recover on the covenant of seizin and, if there be a covenant of warranty in the deed, the subsequent grantee may also recover up- on that contract against the first grantor. But if there be no cov- enant of warranty, we would have the equally strange case of a party, the first grantee, recovering damages when he is entitled to none, and the party really injured unable to recover. Other instances of un- just and unreasonable results could be mentioned. The "technical scruple," as it is called by Kent, upon which the 14 See, also, Mecklem v. Blalie, 22 Wis. 405, 99 Am. Dee. 68 (186S), ace Ch. 6) COVENANTS FOR TITLE 769 American doctrine is based, is this : The covenant is broken the in- stant the conveyance is delivered ; it then becomes a chose in action held by the grantor in the deed. Brady v. Spurck, 27 111. 478 ; King v. Adm'x of Gilson, 32 111. 348, 83 Am. Dec. 269. But how can this be a reason in support of the doctrine under the laws of this State which permit the assignment of all choses in action? What legal principle would be violated by holding that the deed from the first grantee op- erates as an assignment of this chose in action ? Deeds under the laws of this State have been reduced to forms of great simplicity. Intricate technicalities have been pruned away, and they are now as brief and simple in form as a promissory note. All choses in action, as I have just remarked, may be assigned and trans- ferred. The covenant of seizin (if it be held that such a covenant exists in a deed of the form authorized by the laws of this State), as we have seen, is intended to secure indemnity for the deprivation of the title and enjoyment of the lands conveyed. Why not brush away the "technical scruples" gathered about the covenant of seizin, as we have the like technical and cumbrous forms of the instrument itself, and enforce it for the benefit of the party who is really injured by its breach, even though, in so doing, we find it necessary to hold that a chose in action is assigned and transferred by the operation of the deed'' To my mind, the position reached by this course of argument is im- pregnable, and I cannot be driven from it by the great weight of authorities in support of the contrary doctrine. We conclude that plaintiff was not entitled to recover for the land conveyed by him, and that the court erred in rendering judgment for the full amount of the consideration paid, as shown by the deed. II. The plaintiff's counsel argues that, admitting the covenant runs with the land, being entire, a conveyance of a portion of the premises vests no right of action in the grantee. But this position is in con- flict with the authorities. It is held that covenants running with the land are susceptible of division, so that if the land be conveyed in parcels to several persons, each may maintain an action upon the covenant to recover for the land in which he has an interest. Kane V. Sanger, 14 Johns. (N. Y.) 89; Dickinson v. Hoomes' Adm'r, 8 Grat. (Va.) 353. This rule is based upon sound reason, and accords with the analogies of the law.^"^ * * * On account of the error in holding that the covenant sued upon does not run with the land, the judgment of the circuit court is re- versed.^* 16 A portion of ttie opinion relating to the burden of proof is omitted. 16 See Hall v. Plaine, 14 Ohio St. 417 aSG3) ; Geiszler v. De Graaf, 160 N. T. 339, 59 N. E. 993, 82 Am. St. Rep. 059 (1901) : In re Hanlin, 133 Wis. 140, 113 N. W. 411, 17 L. R. A. (N. S.) 1189, 12G Am. St. Rep. 938 (1907) ; Brooks v. Mohl, Aig.Pbop. — 49 ,770 . DERIVATIVE TITLES (Part 2 MARKLAND v. CRUMP. (Supreme Court of North Carolina, 1S34. IS N. C. 94, 27 Am. Dec. 230.) This was an action to recover damages for the breach of a cove- nant of quiet enjoyment contained in a deed whereby the defendant conveyed land to the intestate of the plaintiff. The breaches assigned, were: 1st. The eviction of the intestate by paramount title. 2nd. The eviction of the bargainee of the intestate. The plaintiff having made out a prima facie case, for the defence it was proved that the interest of the intestate in the land, had, before the eviction, been sold under a fi. fa. against the intestate, to one Alar- cum, and that the latter was the person who had really been evicted. Upon this fact being admitted, his honour. Judge Sewell, at Rowan, on the last Circuit, ruled that the plaintiff, to entitle himself to a verdict, should "show a disturbance, either of his intestate, or of some person holding under him, as his tenant, whose possession was that of the intestate. That the plaintiff as administrator, could not recover for a disturbance, when the person disturbed could claim the benefit of the covenant, in the deed to the intestate. That the covenant de- clared on, either ran with the land to the assignee,' or it did not. If the former, the assignee being the person disturbed, was entitled to its benefit — that but one action could be maintained for the disturb- ance, and to allow that action to be brought by one whase interest had passed away, and who had received the full value of the land, for a disturbance which in no way molested him, and this to the prejudice of the person really injured, who had lost both the lands and his mon- ey, was not consistent either with reason or justice. That if on the other hand, the covenant did not run with the land, and extend to the assignee — the purchaser under the fi. fa. then it had not been broken by the eviction of the latter." In submission to this opinion, the plaintiff' suffered a non-suit, and appealed. RuFFiN, C. J. The opinion delivered in the Superior Court, is that entertained by this Court ; and very much upon the reasons expressed by his honour. For it would seem to be a first principle, that in an action sounding in damages, none can be recovered, if none have been sustained by the plaintiff. jSIarcum, the purchaser at sheriff's sale, has been regarded by the plaintiff's counsel, as a purchaser with warranty; because, under the statute, he can have recourse to Tucker, the defendant in the execution. The Court supposes it clear, that he is an assignee, who, by reason of 104 Minn. 404, 116 N. W. 931, 17 L. R. A. (N. S.) 1195, 124 Am. St. Rep. G29 (1908). Hut see Zent v. Picken, 54 Iowa. 535, 6 N. W. 750 (ISSO) ; Backus' Adiu'rs v. McCoy, 3 Ohio, 211, 17 Am. Dec. 585 (1827). Ch. o) COVENANTS FOR TITLE 771 the privity of estate, is entitled to the benefit of, and bound by all covenants running with the land. Spencer's Case, 6th Resolution, 5 Rep. 17. But whether such recourse against Tucker, would amount to such a warranty, or ought to be construed to have the same effect, the Court does not deem it necessary to determine. Because we think, an express warranty from Tucker to Marcum, would not, upon the eviction of the latter, give an action to Tucker against Crump, on his covenant of warranty, nor be a bar to that of Marcum against Crump on the same covenant. In support of the proposition to the contrary, the counsel for the plaintiff has been able to adduce no case, in which that was the point adjudged. In Kane v. Sanger, 14 Johns. (N. Y.) 89, Chief Justice Spencer states the general rule to be, that where covenants run with the land, if it be conveyed before a breach of the covenant, the assignee only can sue upon the subsequent breach ; but if the assignor be him- self bound in his deed, to indemnify the assignee against such breach, there the assignor onl]^ can bring the action. This is certainly a very explicit declaration of the opinion of a most respectable Judge. But it is not entitled to the authority of an adjudication; because it was not necessary to the decision of the case, and is only a dictum. There the plaintiff, who was the assignor, had immediately taken back the le- gal estate, by way of mortgage in fee; and therefore his assignee could not, under any circumstances, have had an action ; for at the time of the breach, he was not the assignee, but the plaintiff was rein- vested with the estate by force of the mortgage. Upon this ground the plaintiff' had judgment. As it was held, that in the case proved, the effect of the plaintiff"'s warranty could not be a bar to the action, it became immaterial to determine what the effect would have been, if the estate had remained in the assignee, until his eviction. No English case is referred to by the Chief Justice, and but one in this country, that of Bickford v. Paige, 2 Alass. 460. This last case does not seem to us to admit of such an interpretation. Chief Jus- tice Parsons says, that "the assignee alone can sue, unless the nature of the assignment be such, that the assignor is holden to indemnify the assignee against a breach of the covenants by the original vendor; which is founded on the principle, that no man can maintain an action to recover damages, who has suffered none." This is a very clear opinion, that an assignee without a covenant from his immediate vendor, may sue on a remote covenant; and that he alone can sue in such a case ; and that for the very best of reasons — because no body else is injured. But it affords no inference, that an assignee with warranty may not also sue on a remote covenant, but only, that in such case, he is not the only person, who can have remedy for a breach. In the context, it must mean, that the assignee who is evicted, may sue the remote covenantor for the damages sustained by him ; but that this case is not like the former in which he alone could have the action; because in this case, another, besides the assignee, may sus- 772 DERIVATIVE TITLES . (Part 2 tain damages, namely, his assignor upon his engagement to indemnify. As without such engagement the assignor could not sue, because he could not be injured; so where he paid the damages to the assignee upon such an engagement, the assignor could sue, because he then had suffered. But because the assignor can bring an action after suffer- ing, it does not follow that he can bring his action upon the eviction of his assignee, and before satisfying the assignee, and to the exclu- sion of the assignee himself. This construction of the language of Chief Justice Parsons is that adopted by the Court in Withy v. Mumford, 5 Cow. (N. Y.) 137, in which the doctrine laid down in Kane v. Sanger, is pointedly denied, under such circumstances as to destroy its authority; even in the Courts of New York. For had the point been necessary to a decision in Kane v. Sanger, it is adjudged directly to the contrary in Withy v. Mumford, in which it was held, that the assignee, who is evicted, may sue any one or more of the covenantors, whether immediate or remote; and that an assignor, who has himself covenanted, cannot sue a prior covenantor, until he has himself satisfied the evicted as- signee; but that upon doing that, he can. This Court is at loss for a reason upon which the first rule laid down in the Supreme Court of New York can be sustained, or the second can be impeached. If there be a reason, it must be peculiar to covenants and conveyances of land. None such is perceived; and to JUS, the position contended for seems to be inconvenient, unjust, and contrary to analogy. It multiplies suits, by requiring each as- signee to sue his own vendor only. It may defeat the evicted person of his damages, by enabling his insolvent assignor to recover the money from the only person among those liable, who is able to pay it ; and he may refuse to pay it over. Covenants which run with land, were always exceptions to the maxim of the common law, that choses in aqtion could not be assigned. They cannot be separated from the land, and transferred ; but with the land they could, as being annexed to the estate in possession, and bound the parties in respect to the privity of estate. In other instances of assignments tolerated by law, the assignee having for the time being the right, is alone entitled to an action on the contract^ and may have his action against any of the parties bound, either mediately or immediately. Negotiable mercan- tile instruments, afford a similar example. The holder may sue, not only his own endorser, but also any one whose name is on the paper. But an endorser cannot have an action against any party prior to him- self, until he shall have taken up the paper from the last holder, and thus become the holder to his own use. The good sense of this prin- ciple seems to make it necessarily applicable to all cases of successive engagements of indemnity. It is admitted that, if the grantee with warranty, convey without warranty, the last grantee may sue directly on the covenant of the first grantor. It is not seen why the interposing a second warranty should. Ch. G) COVENANTS FOR TITLE 773 nor how it can, restrict the assignee to a remedy on the last covenant. In each case, the first covenant came to him, as being annexed to the estate ; and thus belonging to him, he, and not another, ought to have the action on it, until he gets satisfaction. When that is made, the person who makes it is then the injured person, and may have his ac- tion to make himself whole. It is for the benefit of all parties, that each claimant should have a direct recourse on the person ultimately responsible, if he be able to respond. An argument was drawn for the plaintiff, from the doctrine of Buckhurst's Case, 1 Co. Rep. 1, that a vendor who warrants, is entitled to keep the title papers, which contain covenants to which he may re- sort for his indemnity. The inference sought is, that if he has a right to the deed, it must be because he alone can bring an action on the covenants in them, or that such possession gives him the exclusive right of action. In our opinion, that consequence cannot be deduced. It affords no better ground for his action for a breach subsequent to his assignment, than for such action before any breach, in antici- pation of one. The possession of the title deeds may indeed put the assignee to a difficulty in framing his declaration, making profert, and giving evidence of a deed not in his own possession, which he must encounter, and get over as well as he can. Indeed, it may be, that he may be excused from a profert, if the record shows that he is not entitled to the deeds. But these obstacles merely arise out of the rules of pleading and evidence, as between the assignee and cov- enantor sued; and have no reference to the rights of an interme- diate owner, who has parted from his title. The first feoffor can make direct satisfaction to the person evicted, or take a release from him. That an assignee may sue the remote covenantor, the case of Mid- dlemore v. Goodall, Cro. Car. 503, is a direct authority. It is true that the plaintiff there did not state in his declaration, that his con- veyance was with warranty; so that the effect of such a covenant is not precisely shown by that case. But it is equally true, that it does not appear that the deed to the plaintiff did not contain such a cov- enant. Now every declaration must give a complete cause of action, and if the law be, that an assignee with warranty cannot sue on any prior covenant, the declaration ought to aver that the plaintiff is an assignee without one. Nothing of that kind is found in that case, nor in the precedents. They are silent as to the covenants contained in all the deeds, under which the plaintiff claims, except the particular covenants on which the suit is brought, and only sets forth the op- erative parts of the deed, as conveying the estate to the plaintiff. Nor has any case, or precedent been found, of a plea, that the con- veyance from the plaintiff's vendor, or from some assignor between himself and the defendant, did contain covenants, although the case of such covenants, posterior to that of the defendant in the action, must frequently have occurred. 774 DERIVATIVE TITLES (Part 2 But a still broader ground was asserted in the argument; which is, that even if the assignee Marcum could sue, yet the plaintiff, as administrator of Tucker, the defendant's bargainee, could- also have his action : the two actions resting on different grounds ; the former on privity of estate, and the latter on privity of contract. For this no direct authority has been cited, and we suppose there can be none. For it is a proposition of simple justice to the covenantor, that both actions cannot be maintained. It has however been likened to the case of the action of covenant by a lessor against an as- signee of the lessee, and also against the lessee himself; both of which will certainly lie. That, however, is but the ordinary case of a creditor having a right to look to two persons severally for the same debt, from one only of whom, is he allowed to collect it. This would be the anomalous one, of two persons having each the distinct right to recover and collect from a debtor, the same money, although he ought to pay it but once. The present case is really correlative, not to that of a lessor claim- ing from the lessee and his assignee the rent due him, but to that of a lessor who has assigned his reversion and sues the lessee on the covenants in the lease for rent arising after the assignment. That such an action cannot be sustained upon the privity of contract has been settled ever since Lord Coke's time. Walker's Case, 3 Rep. 22. It is there laid down "that if the lessor grants over his reversion, now the contract runneth with the estate, and therefore the grantor shall not have any action of debt for rent due after his assignment, but the grantee shall have it; for the privity of contract follows the es- tate, and is not annexed to the person but in respect of the estate." The explanation of the difference he proceeds afterwards to give, and it is most reasonable. "The lessee himself," he says, "shall not pre- vent by his own act such remedy which the lessor hath against him ; but when the lessor grants over the reversion, there, against his own grant he cannot have remedy, because he has granted to another the reversion, to which the rent is incident." It is thus seen, that to an action by the lessor against the lessee or his assignee, it is a full answer, that the plaintiff had assigned before the rent ac- crued. The same principle embraces the present case. Tucker, the de- fendant's grantee, cannot have the action, because he conveyed to Marcum, before the breach, the estate to which the covenant was incident, and the original privity of contract will not siipport the ac- tion, but in respect of the privity of estate continuing, or of the loss of the estate and damages thence arising to the plaintiff. Indeed, if privity of contract alone was sufficient without reference to the estate, the present plaintiff might recover as well if his intes- tate had conveyed without, as with warranty; for the covenants inserted hi the deed do not make it more or less an assignment of the land. Yet the very cases cited admit the assignee's sole right to sue, Ch. G) COVENANTS FOB TITLE 775 if there had not been a warranty by his vendor; for if he had not the right there would be no redress. But there are other cases from which it is clear that mere privity of contract will not suffice to sustain an action; but the plaintiff must show a damage arising to himself in particular, from the breach al- leged. Those of Kingdon v. Nottle, 1 Maule & Selw. 355, and 4 Maule & Selw. 53, are clear examples. The defendant conveyed to the testator with a covenant of seisin ; and the first action was brought by the plaintiff as executrix, upon the idea that such a covenant was broken as soon as entered into, and therefore that, as in other cases of a breach in the testator's time, she ought to sue in that character. But it was held otherwise on demurrer, because although the war- ranty was broken in the testator's time, yet the declaration did not show a special damage to him in his life-time, and the heir or dev- isee took the estate such as it was, and was entitled to the benefit of the covenant; and therefore the executrix could not sue, and claim the damages as personalty, since the testator had not so treated the breach of covenant. Lord Ellenborough said there would be a diffi- culty in admitting the executrix to recover at all, that is, upon the dec- laration aa framed, without allowing her to recover the full amount of damages for the defect of title; and in that case, the heir would be barred by her recovery ; for the heir could not maintain another ac- tion for the same breach and the same damages. All the Judges, indeed, put it pointedly, that the recovery by the executrix would be a bar to the heir, and leave no subject of a suit for the devisee, al- though the estate such as it was, came to him, and the damage was actually to him. Accordingly when the same plaintiff, in the last case, sued as devisee, there was judgment for her. These cases are contrary to several in this country in one respect; which is, tliat upon a covenant of seisin the assignee of the land can- not have an action, since the breach is necessarily before the assign- ment. Greenby v, Wilcocks, 2 Johns. (N. Y.) 4, 3 Am. Dec. 379, and Bickford v. Paige, 2 ]\Iass. 460. That difference does not aft'ect the question before us ; and tlie case of Kingdon v. Nottle is a clear authority for this principle, that whenever a person is in the land in privity of estate with the covenantor, eviction or defect of title is not necessarily to the damage of one who has merely a privity of con- tract; but that such latter person must particularly show his dam- age, before he can sue on the contract. It further establishes, that the action of the person who has only a privity of contract will not lie, because a recovery in it would be a bar to the person who had the privity of estate, to whom the injury is immediate, and who there- fore has the first right to satisfaction. Upon the whole, therefore, the Court is of opinion, both upon au- thority and reason, that a purchaser with warranty from his vendor may sue upon a covenant of warranty to his vendor; and as a con- 776 DERIVATIVE TITLES (Part 2 sequence, that the latter cannot sue, until he shall have sustained damage by making satisfaction upon his own covenant. This is the more proper here, since the rule established in this state for measuring the damages ; because the plaintiff's intestate ought not to recover his purchase money, but only what Marcum recovered from him ; that is to say, the purchase money and interest paid by Marcum. Williams v. Beeman, 13 N. C. 483. The observations on the first point supersede the necessity of exam- ining the question, whether an estate passed by the defendant's deed or not. The declaration is not framed on a covenant to convey, as if this were such an agreement and not a conveyance ; but on this as a cove- nant of warranty of an estate conveyed. The gravamen is the evic- tion of Marcum, the assignee, and the damages arising therefrom; and not a refusal to make an assurance. Now the eviction of the in- testate's assignee can never, per se, be an injury to the plaintiff; but to the assignee alone, until he shall have called on the plaintiff to make him whole. When that shall be done, the plaintiff can state a case in his declaration, on which a special damage to his intestate, or to himself as administrator, can be seen and assessed to him. Per Curiam. Judgment affirmed.^ ^ WILSON v. TAYLOR'S EX'RS. (Supreme Court of Ohio, 1S59. 9 Ohio St. 595.) This is an action of covenant. Reserved in the district court of Licking county. The case stands upon demurrer to rejoinder. The material allegations of the declaration are substantially these: That Taylor (the defendant's testator) conveyed the land, which is the subject of the covenant sued on, to Wilson, the plaintiff; that Wilson conveyed to Thomas Legget ; that Legget conveyed to William Weis, who went into possession; that all these conveyances contained like covenants of general warranty against all incumbrances and claims of all persons whomsoever; that at the time Taylor made his deed and covenants to Wilson, one Rebecca Houston, then wife of John Houston, Taylor's grantor, had in the land a contingent right of dower, which became absolute; and that in Taylor's lifetime she filed her peti- tion against Weis, and procured dower in the land to be assigned to her; and that Weis^ thus evicted of part of the land, brought an ac- tion upon the covenant made by the plaintiff, Wilson, to Legget, and recovered a judgment against the plaintiff for $284.43, and costs of suit, which he was compelled to pay. To make himself whole again, Wilson brought this action on the covenant made by Taylor to him. Taylor's executors plead, in substance, in bar of the action, that 17 See Booth v. Starr, 1 Conn. 244, 6 Am. Dee. 233 (1814) ; Kramer v. Carter. 136 Mass. 504 (1884) ace. Ch. 6) COVENANTS FOR TITLE 777 Weis had brought an action against Taylor on the same covenant upon which the plaintiff, Wilson, sues, and had recovered judgment against Taylor for its breach for $280.23, which he had fully paid. Wilson replies that Weis had recovered judgment for $414.43 against Legget on the covenant made by him directly to Weis, as well as the judgment against die plaintiff, Wilson, of $284.43, mentioned in the declaration, and the judgment of $280.23 against Taylor, mentioned in the plea; that these judgments recovered by W^eis were on the succes- sive coyenants made by Taylor, Wilson, and Legget; and that the recovery of dower and consequent eviction was the common and only breach of all and each of the covenants ; and that the amount of the judgment against Legget, to wit, $414.43, was the true amount of dam- ages sustained and proved by Weis ; that of the damages, Taylor paid only $148.08, and that the plaintiff, Wilson, paid $172.46, and costs and expenses. To this Taylor's executors rejoin, setting up the same defense made by their plea. To this rejoinder Wilson demurs. BrinkErhoff, C. J. The covenant in this case sued on, was a cove- nant -running with the land ; and Weis, the last grantee, having been evicted from part of the land embraced within the successive cove- nants of warranty, brought several actions simultaneously against each of the successive covenantors, and recovered several judgments against each. This, it seems to be settled, he might properly do. King v. Kerr's Adm'rs, 5 Ohio, 155, 22 Am. Dec. 777 \ Foote v. Burnet, 10 Ohio, 317, 36 Am. Dec. 90, and notes. But though he might have his several actions, either simultaneously or successively, against all his covenantors, whether immediate or mediate, yet it is equally well settled, that he could have but one satisfaction. It seems that, for some unexplained reason, judgment in these sev- eral actions, thus simultaneously brought against the successive cove- nantors, were taken for very different amounts, varying from about $280 to about $414. And Taylor, the first covenantor, having paid and satisfied the judgment against him, and which was amiong the smallest in amount, the question presented by the demurrer is, whether this satisfaction of the judgment against him is a bar to an action over against him by the plaintiff, who was an intermediate covenantee, after payment by the latter of a judgment recovered at the same time? The question seems to be one of first impression, and our minds are not free from difficulty in regard to it; but, on the whole, we are unanimously of opinion that the plea is good. As before remarked, Weis, the last covenantee, and who suffered damage by reason of partial eviction, was entitled to his several action against all the prior covenantors. Not only was his right of action perfect against all, but the same rule of damages would apply as to all; and, although he could have but one satisfaction, yet he was clearly entitled to recover the full amount of his damages against each. If he failed to make the proper showing in order to recover the full amount of his damages 778 DERIVATIVE TITLES (Part 2 against each, it was his own fault; and having collected and received the amount recovered against the first covenantor, who occupied tlie position in law of a guarantor of all the subsequent grantees, it seems to us that Weis' claim under all the covenants must be held satisfied; and that all enforcement of the judgments against the other intermedi- ate covenantors was wrongful, and in violation of the principle that he could have but one satisfaction. Taylor ought not to be subjected to different actions, and liable to several recoveries for the same breach of the same covenant. It follows from this that the plaintiff has mistaken his remedy. He ought, after the satisfaction by Taylor of the judgment against him, to have either resorted to a court of equity to restrain the collection of the judgment against himself, or, if circumstances forbade that, to have sued to recover back the money he had paid on the judgment against him, as for money had and received by Weis wrongfully, and which in conscience he ought not to retain. Demurrer overruled, and caiuse remanded.^* 18 Release of Covenantor. See Middlemore v. Goodale, Cro. Car. SO.I (16.39) ; Chase v. Weston, 12 N. H. 413 (1841) ; Susquehanna & W. Val. Rail- road & Coal Co. V. Quick, 61 Pa. 32S (1SG9). The cases above given under the heading "covenants for title" have been selected with a view especially to the development and presentation of the problems arising out of the running of such covenants with the ''land," probably the most difficult phase of the general subject. On this and other phases of the subject, the student should further consult Rawle on Covenants for Title. Ch. 7) ESTOPPEL BY DEED 779 CHAPTER VII ESTOPPEL BY DEED LITTLETON'S TENURES. Also these words which are commonly put in such releases, scilicet (quae quovismodo in f uturum habere potero) are as void in law ; for no riyht passeth by a release, but the ri g ht which the releasor hath at th e t ime of the release made . For if there be father and son, and th e fa - t her be disseis ed, and tlie son (living his father) releaseth by his dee d t o the disseisor all the right which he hath or may have in the same tenements without clause of warrantie. &c.. and a fter the father dietli , &c., the s on may lawfully enter upon the posse ssion of tlie disseisor, for th at he had no right in the land in his fathe r 's hfe (pur ceo que il n'avoit droit en la terre en la vie son pier) but t he right descended to him after the release mad e by the death of his father, &;e. "Section 446. ^T^ ' y ^^Jj ,^ A<->C« (^{l^ ru>4j>^^^ K-«i COKE UPON LITTLETON. Note, a man may have a present righj, though it cannot take effect i n possession, but in futuro. As he 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 Little- ton puts, where the son 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. b ut all the ri p ^ht w as at thnt time in th^ father; h"t ^f^ er the decea se o_f..the father, the son shall enter into the land against his own_ re- lease^ * * * "Without clause of warrantie." For if there be a warrantie annexed t p the release, then the son shall be barred. For albeit the release can- not bar the right for the cause aforesaid, yet the ^yarrantie may rebut . and bar him and his heirs of a future right which was not m him"at that time : and th e reason (which in all cases is to be sought out) where - « fore a warrantie being a ^ ^ yyenant xeal- should bar _a . future rig^ht, js f or avoiding of circuity of action (which is not favoured in law) ; as he that made the warrantie should recover the land against the ter-tenant, and be by force of the warrantie to have as much in value against the same person. § 265a. 780 DERIVATIVE TITLES (Part 2 A) JACKSON ex dem. McCRACKIN v. WRIGHT. V A (Supreme Court of New York, 1817. 14 Johns. 193.) y . ^ This was an action of ejectmeo t. brought to recover 200 acres of \5 land, on the west side of lot No. 60, in the town of Sterhng. The lJ[' cause was tried before Mr. Justice Yates, at tlie Cayuga circuit, in 1816. tr Peter Boise, bv deed poll, dated the 5th of Julv. 1794. and which was recorded on the 12th of Tune. 1807. wherein he is described as lat£ private in the first New York regiment, in consideration of f^rty pounds, gr ant ed, b arg ained, sold, and quit-claimed to the lessor of thg plaintiff, in fee, "all that militarv right, or parcel of land, granted t o him as bounty lands, for his services in the regiment aforesaid, durip g t he late war." The deed contained no covenant s or warranty . On the 2d of April, 1806, an act was passed by the legislature of this state (Laws 1806, c. 95), entitled, "An act, for the relief of Peter Boise, and others," by which it was enacted, "t hat it shall and may b e l awful for the commissioners of the land office, and thev are hereby required to grant le tters pat ent to Peter Bo is e, late a soldier in the fir st New York regirn ent , commanded by Colone l Goose Van Schaick, in the Ime of the army" of the United States, a nd his heirs and assigns forey er, for the qua ntity of two hund r ed acres of land, in the tract set apart for the use of the line of this state, serving in the army of the United States, a s a gratuity for h is s ervice s a nd sufferin gs in the l^^te revol u- t ionary war :_ provided, that"5ie grant shall be to the s aid Peter Boisej during his life only, and afterwards to his heirs in fee." In pursuance of this act, letters patent, bearing date the 20th of November, 1806, for the premises in question wer e issued t o Peter Boise, under the great seal of the state. The judge ruled, that the act of the Legislature above mentioned, was a private act, and that the deed from Boise to the lessor of the plaintiff, being prior in date to the patent, did not entitle him to recover . A verdict was accordingly rendered for the defendant. The plaintiff moved for a new trial, and the case was submitted to the court without argument. SpEnce^r, J. The decision of the judge at the circuit, was correct, on two grounds : ^ 2. The deed from Boise to McCrackin is a bargain and sale, and q uit claim , and he had then no title to convey in the premises ; and no title, not then in esse, would pass, unl ess there was a w arranty in the deed ; i n which last case, it would opera te as an esto ppel, for avoiding circuity ot action. (Co. Lit. sect. 446, 2657a and b ; Bennett v. Irwin, 3 Johns. .366.) Motion denied. 1 The court's opinion covering the first ground Is omitted. %/v|.«^ . fe e of the lands in dispute, in 1824. leaving a will, i n which she "^^de k^^r^ MxatJ^I /"the following devise : "And also I give and devise all my real esta te, ^"^lA \ w hatsoever aj id. wheresoever., unto my niece, Mary Ann Jarvis, my A mother, Sarah Vermilya, and my brother, Thomas Vermilya, to t he V^s urvivor of them, and to the heirs and assigns of such survivor .'' The lands in dispute passed bv^liis devise. The devisees died in the following;) order : First, S ararrVerm ilya, March 30th, 1834,^sec- ond, M arV-^mn Jarvis, January 29th, 1846, and, lastly, T hon-fasW er- n iilv_a^. in September, 1853. Mary ^Ann Jarvis married Thomas S. Christopher January 9, 1840, and had by him two children, viz., the de fendan t (Thomas V. J. Christopher) and James J. V. Christo pher. Thomas^Vermdya, shortly after the death of his mother, Sarah Ver- milya, and on the 10th of October, 1834, conveyed the lands in dis - p ute to Mary Ani?^arvis, b y deed containing the following recitals;. "Whereas, Mary Vermilya, late of the city of New York, deceased, ^as in her lifetime seized in fee simple of and in certain lots of land, hereinafter particularly described ; and whereas, the said Mary Ver- milya did, in and by her will, by her duly made to pass real estate, bearing date September 2d, 1824, g ive and devise all her real estate, \ § ^UaA^ whatsoever and wheresoever, unto her niece, Mary Ann jarvis, h ev mother. Sarah Vermilya. and her brother, Thomas Vermilya . to the survivor of them, and to the heirs and assigns of such survivor; and '. j whereas, Sarah Vermilya, my motlier, i^s now .dead, and the said prop- '• erty is n ow vested in me , the said Thomas Vermilya, and Mary Ann .F r' a 784 DERIVATIVE TITLES (Part 2 =e. Jarvis, in fee simple, a nd I. the said Thomas Vermilva. beiiisf Heslrous of vesting the whole in mv n iere^ Mary ^nn jarvis, no w this ind en- t ure witnesseth," &c. The deed then, in consideration of the sum of $100, grants , b argai ns a nd sell s unto Mary Ann Jarvis, and to h er heirs and assigns, a ll_the g rantor's estate, right, title and interest whatsoever, under the will o f Mary Vermilya o r otherwise, ot, m and to the lands therein described. The deed is wi thout covenants, but the habendum declares that th e g rantee, and henieTfs~ and^ 'assigns, shall have and hold the lands, t o her and their u se , absolutely^ loreve ri ' ^ On the 6th of September, 1844, Mary Ann Jarvis, together with her husband, Thomas S. Christopher, by deed containing covena nts f yTlfr.aL:arajraaty , conveyed the lands in dispute to John Arbuckle. t;i'nrp tlnpn^ in inVt-n^ nf peveral nipsnp rnnvcyances, they h ave become vested in t he com plainant. No dispute is raised respecting tlie regular- ity of the complamant s title; the objection to her case goes deeper; Jt i s denied th?it thp .emn-^p f r^^m which she derived her title could grant a fee, Thomas Vermilya, the survivor of the three devisees, died, as al- ready stated, in September, 1853. He left a will, b y w hich he ga ve his whole estate to the defendant (Thomas "V". T. (^hristoplTer") and to ^ t he defendant's brother, James J. V. Christophen and to the ant's father. Thomas S. Christopl,ien The defendant's father defe nd- and brother both subsequently died intestate, and without leaving any other relative as near in blood as he; co nsequently, the wllol^SS Jate of w hich Thomas^^ermilva was seized at the time of hisoeath is now vested in the defendant . The defendant, under a claim that the deed ii from Thomas Vermffya to Mary Ann Jarvis passed o nly a life estate , and that the f ee is now, vested in him, has brought an action of ej ect- ment against one of the complainant's tenan ts. That suit has been enjomed at the instance of the complainant, and the q uestion now before \he- rnnrt is. whether or not, o n the facts first narrated, the d efendant is entitled to have that injunction clissolve"3T"" The rnain topic of debate presented by the case is. whe ther "orTiot the deed ot 1834 , lade by Thom^ to Mary Ann, should be adjudged to have c reate d In estoppel, which should debar Thomas, and those standing in his •ights, from asserting a claim t o the estate subsequently cast up on him by the death of jytar ^ y Ann . ^At the time Thomas made that deed, it is admitted he was seized of o nlv a life estate, with .a possibilitv J Jiai: t he contingent remainder in fee might vest in him as surviv or. The legal construction of the devise is, in my judgment, entirely clear. T he three devisees took a joint estate for life,, with contin .t yen1- r emainder in fee to the survivor . Under our svstem of real prooert v 1 aw, neither words of inheritance nor perpetuity are nece ss ary to_2 iss a fee by w ill. By the common lav/ tliey were, but a devise to A and his assigns torever, or to A and his heir, would pass a fee. 4 Com. Dig. 161, tit. "Estate by Devise," n. (4). So a devise to_on£_et sanguini ^^' •^Y^'/ Ch. 7) ESTOPPEL BY DEED 785 SU P would p ass an estate of like quanti ty. Gilbert on Dev. 19. By a statute passed in 1784, it is enacted that all devises in which the words h eirs and assigns, or heirs and assigns forever^ are omitte d, fl^d no jt/jJ^^ ^/ expressions are contained whereby it shall appear that such devise w as ^ J i ntended to convey an estate for life only, shall be construed, deeme d and adiudg^ed. in ^11 rnnrt'. nf la\y and equity, to convey an estate i n f ee simple in as full a manner as if the lands had been g-iven to th e d evisee, and to his heirs and assigns forever . Rev. p. 300, § 13. Hence, as the law stands, a devise to A, simpliciter, in which nothing" appears indicating a purpose to give him only a life estate, will create a fee. In view of the provisions of this statute, it is cl ear that if th e ^^^ dcA ^se in this case had been to the three, and to the survivor, witho ut _^^»-V«^ more, the survivor would have taken the fee, and such, obviously, in view of die terms of this devise, must have been the construction it would have received according to the common law, and in the absence of a statute like that just cited. A devise to two, and the survivor of them, and the heirs of such survivor, gives them a joint estate for life only, with contingent remainder in fee to the survivor. 2 Fearne on Rem. 66, § 187 a; Vick v. Edwards, 3 P. Wms. 372. Th omas Vermilva, then. p rrnrHinp; to \he legal construction of th i s de vise, became seized of the fee of the lands in dispute on the deat h ^jL^^i^ /X of his niece, ^Mary Ann Christopher. T he defendant stands in his pl ace, with no grea ter rights or higher equity! Me is sirriply the donee of Thomas, and the case must be decided in the same manner that it would be if Thomas were the person seeking to dissolve this in- junction. Tlig _recitals of the deed made by Thomas to Mary A nn shoj fc^ beyond all question, that the estate about which they were deal - ing, and which Thomas intended to c onvey, and Ma ^'y ^nn f>-pp^tf»rl t o get, \vas the fee. ~ Tt is incontrovertible that the decisive and con- trolling representation of the deed is that in which it is said, that "the said property is now vested in me, Thomas Vermilya, and my niece, Mary Ann Jarvis, in fee simple. " T hey manifestly dealt on the basi s t hat they were the owners , absolntely of a«; great and RS pprfprt-an e state as it is possible to hold in land s. D o the recitals of this deed create an estoppe l against Tho mas ? There is an apparent conflict in the adjudicationslipon the questio whether a deed of bar g ain and sale. withot:|t warranty of title , but co ntaining recitals "sJiowing that the parties eviaentlyQeairunder a belief that the grantor was seized of a greater estate in the lands tha n he actually had at the time of its execution, will bind or trans fer, by e.stoppel._ a contin gent su bsequently acquired estat e. Some seem to hold that a grant in this form is utterly inefficacious to pass an estate not yet vested, and can only operate as a conclusion between the par- ties and their privies on an estate vested at the time of its execution ; while o thers, resting upon a much more liberal and just basis, hold tha t w hether a contingent or an after-acquired interest will pass by estop- Aig.Peop. — 50 (D The U^if% rsG DERIVATIVE TITLES (Part 2 p d, as the result of a conve3'ance in this form, depends entirely upo n \ vhether it was the in t ention of the parties to convey it.^nd that wh en- e ver it clearly appears that such was their intention, it is the duty o f t he court to adjudge an es t opp e l, in order that the deed may he ra.r - r ied into effect according to the minds of the partie s. No review of the learning on this subject will be attempted. The limits of a judi- cial opinion are neither sufficient nor adapted to such an undertaking. The cases will be found collected in the American notes to the Duchess of Kingston's Case, 2 Smith's L. C. 623 et seq. I n my opinion, the latter v iew is the correc t one . It commends it- self to my sense of justice as being in entire accord with certain funda- mental doctrines of the law, and it is obviously better adapted to pro- mote and further justice than its opposite. It appears to be a natural deduction from, if not an actual exemplification of, that great prij nci- p le which declares that in searching for the meaning of an instrumen t, t hat interpretation shall prevail which is "as near the minds and ap- parent intent of the parties as it possibly may be, and the law will pgr- mit.!.' Shep, Touch, ch, V, p. 85. And "i f it cannot operate in o ne fo rm, it shall opera fp ir» tV.Q<- whj^h, by ^^^''^l '"'^^'^^ pff^ c-tuate the int en- tio^ j>f th e prirties". Goodtitle v. Bailey, Cowp. 597. The most accurate and lucid statement of the essentials of such an estoppel that has come under my observation, is that given by Mr. Justice Nelson, in pronouncing the opinion of the supreme court of the United States, in the case of Van Rensselaer v. Kearney, 11 How. 297, 301 (13 L. Ed. 703) in which he says: "T hat if tlie deed bea rs on its face evidence that the grantor intended to convey, and the gran - t ee expected to become invested with an estate of a particular descri p- t ion or quality, and that the bargain proceeded upon that footing^e - tween the parties, then, although it may not contain any covenants o f lltle,_in the technical sense of the term^ still, the legal operation an d effect of the instrument will be as binding upon the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted, at least so far as to > es top them trom ever afterward denying that he was seized of the par - t icular estate at the time of the conveyance ." Then, after a careful examination of several previous adjudications, both by the courts of England and of this country, he further says: "The principle deducible from the authorities seems to be that what- ever may be the form and nature of the conveyance to pass real prop- erty, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular es- tate in the premises, and which estate the deed purports to convey, * * the grantor, and all person ^ n privity with him, shall b e e stopped from ever afterwards denying that he was so seized and p os- sessed at the time he made the conveyance . The e stoppel works upo n t he estate, and binds an after-acquired title as betwee n the parties and privies. The reason is, that the estate thus affirmed to be in the party Ch. 7) ESTOPPEL BY DEED 787 at the time of the conveyance, m ust necessarily have influenced the grantee in ma king the purchase, and hence the grantor and those in p rivity with hmi, in good faith and fair dealing, should be foreve r t hereafter preclu ded fr om gain saying it." The rule thus established vi^as subsequently affirmed in French v. Spencer, 21 How. 228, 16 L. Ed. 97, Chancellor Walworth, prior to the decision of Van Rensselaer v. Kearney, had enunciated the same doctrine, substantially, in giving his opinion, as a judge of tlie court of errors of New York, in Jackson v. Waldron, 13 Wend. (N. Y.) 178; and his formula of the rule was subsequently quoted and ap- proved in Fitzhugh v. Tyler, 9 B. Mon. (Ky.) 559. The learned edi- tor of the American notes to the Duchess of Kingston's case, states that the f air result of the more recent cases would se em to be, that xO ^ vhenever the terms of the deed, or of the covenants which it contams, / /y^ ^ ^-^,^?'^ c learly show that it was meant to convey an absolute and indefeasible >^ '"^^^^'^ t itle, and not merely that which the grantor has at the time, it will biiTH O-'^-t"*-^ and pass e very estate or interest which may vest in him subsequent to i ts execution, whether the warranty which it contains be general or ..^"nL.^-!^^^-^ special, and although it may contain no warranty whatever . 2 Smith's " L. C 636. In the language of Mr. Justice Nelson, it is clear that this doctrine is founded upon the hi ghest principles of moralit y, and recom- mends itself to the justice and common sense of every one. B ut for the presence of another fact in the recit als o f this deed , viz., a c orrect recital of t h e terms o f _the devise . 1 think it might very properly be declared, at this point, without further consideration, that the defendant is estopped. T he presence of this fact makes the r e- c itals, in their legal essentials, flatly contradictory . The grantor says that he and his grantee hold the lands in fee ; but in stating the facts from which this conclusion is deduced, he shows, at least to the pr o- fessi onal mind, that his deduction is entirely unwarrante d. Now, it cannot be doubted tliat it was originally held that there could be no estoppel by deed where the truth appeared on the face of the instru- ment. 4 Com. Dig. 205, tit. "Estoppel" (E 2) ; Sinclair v. Jackson, 8 | Cow. (N. Y.) 543; Pelletreau v. Jackson, 11 Wend. (N. Y.) Ill; Jef- ferys v. Bucknell, 2 Barn. & Ad. 278; Wolling v. Camp, 19 N. J. Law, 148. But t his rule, like all other legal rules, was formnbted for the / ' ^^ doing of justice, and when it cannot be used for that purpose, but it s ^^'^^ fl ^^ e nforcement will lead to injustice or wrong, it should be disregarded. k/"^C4-*»-. V*-*-^ Equity recognizes no rule as binding which will constrain it to do injustice. Recently this rule has been repudiated by three of the superior courts of England — chancery, exchequer chamber and queen's bench. I n the court of c hpnrpry, T,nrrl T helinsford declared that the appea r- ance of the truth on the face of the deed constituted a reason rather why the .party should be held to be estopped, than that he .should - he. permitted to gainsay or disprove what he ha4 previou sly adniitjted or alleged. I quote his words : "It appears to me that the circumstance |(72w«^ ^ Mary Ann the fee simple absolute, and she expected to get it That was the estate for which she paid her money, and that was the estate Thomas intended to convey to her. Now, if Thomas were here insisting that inasmuch as his deed told both the truth and a false- hood, it was equitable and just that he should be allowed to recover the lands in dispute, in spite of the fact that he had received full com- pensation for them many years ago, his conduct, according to my notions of legal ethics, would constitute a fraud of the most offensive character. T homas's donee, in legal principle if not in mnraly; , stan ds j ust exactly where Thomas would, if he. instead of the defendan t, were now asking for a dissolution of this injunctio n. My conclusion Ch. 7) ESTOPPEL BY DEED 789 is that it should be adjudged t hat the defendant is es topp ed by the pj-/^' ^^^ M deed,oXX834. But another ground for equitable relief remains to be considered. The complainant contends that, even if it be admitted that Thomas had no interest in the lands, at the date of his conveyance, upon which a deed of bargain and sale could operate, by way of estoppel or other- wise, still, inasmuch as it distinctly appears on the face of his deed that it was intended to convey any future interest which he might ac- quire, and was not intended to be limited to the interest which he then had, equity will enforce the deed as an executory agreement to c onvey the subsequently-acquired interest. This contention is founded, on the most obvious principles of justice, and is supported bv verv high author ity] The adjudications supporting it will be found collected in 2 Smith's L. C. 641; 2 Story's Eq. Jur. § 1040 c; and 2 Spence's Eq. Jur. 852. Chief Justice Tilghman, in McWilliams v. Nisly, 2 Serg. & R. (Pa.) 509, 515 (7 Am. Dec. 654), said: " Equity will enforce a covenant to convey an estate whenever it shall be acquired by tne covenantor, and the case is not the less strong where there is an abso- lute conveyance." T his ground of relief is, unquestionably^ a matter of jvhjch a court o f equity only can take cognizance. While I am decided in my opin- ion that the deed of Thomas to Mary Ann contains matter which cre- ates an estoppel against Thomas and all who may claim under him as heirs or devisees", still, so far as I am aware, the question whether a deed in this form will create an estoppel or not is, as a matter of law, undecided in this state. To compel the complainant^ therefor e, t o litigate the question of estoppel in the court where the action of e jectment is pending, is to send her to a tribunal whidi it is cl ear is i ncompetent to give her one measure of relief t o which sh e seems en- t itled . If the injunction should be dissolved, and it should then turn outuiat the court in which the action of ejectment is pending should be of opinion that the deed created no estoppel, the complainant wou ld b e_ compelled either to yield possession of the land, or return here in o rder that her ad ditional claim to relief m i ght bp Hptprm inpH. For these reasons i think the de fendant's motion sho uld be denied.^ 2 A., in possession of lands as devisee of his father, who in his lifetime was equitable owner thereof, executed a mortgage of those lands to B., reciting ^- . ,-. therein that he, A„ was legally or equitably entitled to the premises, and also ^ ^ ^*. ^ ^ j La. covenanting that he was lawfully or equitably seised thereof. Later A. ac-'^^V"^ quirefl the legal estate and mortgaged the premises to C, who took without no- U 'TT^ tice of B.'s rights. In ejectment by A. against C. it was contended on behalf ^Sr^-^^*^' '** of A. ttiat C. was estopped to set up the legal estate. It was held that there f) was no such estoppel. Right d. Jefferys v. Bucknell, 2 B. & Ad. 278 (1831). '|:rsr^-^"'"™-f"i*^ -t 790 DERIVATIVE TITLES (Part 2 u^;(^' AYER V. PHILADELPHIA & B. FACE BRICK CO. (Supreme Judicial Court of Massachusetts. 1S92, 1893. 157 Mass. 57, 31 N. E. 717, 159 Mass. 84, 34 N. E. 177.) This is a writ of entryto f oreclose a mor tgagee . The case on the agreed facts, so far^TTt needs to be stated, is this. O ne Waterm an made a first_mortgage, and later a second Jnortgags. 'The hrst was foreclosed and the land subsequently was reconveyed to him. T henj he holder of the second mortga ^ejcnr'^'P}'^'^ ^^ ^ thirri pjex^^^n^ \vho_ con- v ^yed to_thf dfHrrand , anJ- - The tenant is a grantee under Water- man. * * * V' (j>Cf^ »f U/^t«l» i*AM^ fcKAnTJ In the granting part m t his deed, the land is stated to be * conveye d subj e ct to" a c ert ain right of drainage, 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 adminis- trators, do covenant with the said g^rantees and their heirs and assign s, that I am lawfully seised in fee simple of the aforegranted premises ; G^ *:hat tliey are free from all encumbrances. e>^ce| Tl^ cer tain mortgage *' (iven by me to the Boston Five Cents Savings Bank, dated March 1, 1872, to secure the sum of forty thousand dollars, t he rip^ht nf drainag- e a nd the easement aforesaid ; that I have good right to sell and convey t he same to the said grantees," and their heirs and assigns torever,^s aforesaid : and that I will, and mv heirs, executors, and administrators shall, warrant and defend the same to the said grantees ^and their heirs an d assigns forever, against tlie lawtul claims and demands of all pg r- gons, except the rip"ht nf (j j-^nacrp anH tlnp ^easement aforesai d-" * * * Holmes, J.^ When this case was before us the first time, 157 Mass. 5'7, 31 N. E. 717, it was as sumed by the tenant t hat the o ril y gnestj on was jvhether the covenant nf warranty in the serond mor|:gage should be construed as warranting a gainc;! thp f i^^g^• mrirfgrogA-^: Q]\^o attempt was made to deny that, if it was so construed, the title afterwards ac- quired by the mortgagor would enure to the benefit of the second mort- gagee under the established American doctrine^ The tenant now de- s ires to reopen the agreed facts for the purpo^of showing that af ter a breach of the covenant in the second mortgag e , and before he r e- p urchased the land, the mortgagor went into bankruptcy and got h is d ischar ge. TTTe judge below ruled that the discharge was immaterial, 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- 3 The statement of facts is talcen from the opiuion reported in 157 Mass. 57, 31 N. E. 717. /^t Wiis held fh.q«; fhp n oveoant o f >\nrrnn<-Y 1" tha. coonprj mort£!;ng;e shoi^ lfl bV ^coiistniejl. Welbon v. Welbon, 109 Mich. 356, 67 N. W. 33.S (1896) ; Smith V. GauL), jy .>^. D. ,337, 123 N. W. 827 (1909). ace. Dunn v. Dunn, 3 Colo. 512 (1877) semble; Briclcer v. Bricker, 11 Ohio St. 240 (1860), contra. Ch. 7) ESTOPPEL BY DEED 791 ch arge in bankruptcy makes nn rlifFerencf' . B ut they say that the inu r- i ng of an after acqu ired title by virtue o f a covenant of warranty mu st be due either to a representation or to a promise contained m the cov - enant, and that if it is due to the former, which they deem the co rr ect doctrine, then they are entitled to judgment on the agreed statement of facts as it stands, o n the ground that there can be no estoppel by a n i nstrument when the truth appears on the face of it, and that m thi s c ase the deed showed tha t the grantor was conveying land subj ect to ^ mortgage . If, however, contrary to their opinion, the title inures by reason of the promise in the covenant, or to prevent bircuity of action, then they say the provision is discharged by the discharge in bank- ruptcy. However anomalous what we have called the American doctrine may be, as argued by Mr. Rawle and others (Rawle on Covenants (5th Ed.) § 247 et seq.), it is settled in this State as well as elsewhere. It is set - tl ed also that a discharge in bankruptcy has no effect on this oper^tj on of the covenant of warrant y in an ordinary deed where the w arranty is coextensive with the grant. . Bush v. Person, 18 How. 82, 15 L. Ed. 273 ; Russ v. Alpaugh, 118 Mass. 369, 376, 19 Am. Rep. 464. Gibbs V. Thayer, 6 Cush. 30; Cole v. Raymond, 9 Gray, 217; Rawle on Cove- nants, (5th Ed.) § 251. I t would be to introduce further technicaH ty into an arti ficial doctrine if a different rule should be appHed whe re t he conveyance is of land subject to a mortgage against which th e g rantor 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 un- justified peculiarity of a particular transaction without analogies else- where in the law, and t hat this g-enerp] prinriplp ran he fnund nnlyJ n t he doctrine of estoppel by representation^ if it is held, as the cases cited and many others show, that the estoppel does not depend on per- sonal liability for damages. Rawle on Covenants, (5th Ed.) § 251. If the American rule is an anomaly, it gains no strength by being re- ferred to a principle which does not justify it in fact and by sound reasoning. The title may be said to enure by wav of estoppel when ex - p laining the reason why a discharge in bankruptcy does not aff e ct thi s o peration 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 representation actually believed to be true. It is a technical effect of a technical repre- sentation, the extent of which is determined by the scope of the words devoted to making it. A subsequent title would innre to the grant ee when the grant was of an unencumbered fee although the parties agreed b y parol that there was a mortgage outstandinof ; Chamberlain v. Meed- er, 16 N. H. 381, 384; see Jenkins v. Collard, 145 U. S. 546, 5.60, 12 Sup. Ct. 868, 36 L. Ed. 812, and t his shows that tlie estopp el i.? deter- mined by the scop e of the conventional assertion, not by any question of fraud or of actual belief. 792 DERIVATIVE TITLES (Part 2 But the s cop e of the conventional assertion is determined by the scope of the warranty which contains it . Usually the warranty is of what is granted, and therefore the scope of it is determined by the scope of the description. But this is not necessarily so ; a nd w^hen the w arranty says that the grantor is_to be taken as assuring^ vou that he o wns and will defen d you in the unencumbereH fff, '^t r\np<:: nnt- n^Her t hat by the same deed he avows the assertion not to be the fact The warranty is mtended to fix the extent of responsibility assumed, and by that the grantor makes himself answerable for the fact being true. I n short, if a man by a deed says, I hereby estop myse lfto deny a _fact, i t does not matter that he recites as a prelimin ary that the fact is not true._ The difference between a warranty and an ordinary statement in a deed is, that the operation and effect of the latter depends on the whole context of the deed, w hereas the warranty is put in f o r jhe ex- p ress purpose of estopping the grantor to the extent of jtsj^ds. . , Tlie reason "why the estoppel should operate, is. that such was the obviou s intentpn ot the par ties." Blake v. Tucker, 12 Vt. 39, 45. "T Ta general covenant of warra nt y following a conveyance of oob '' t he grantor's right , title, and mterest were made in such a form tha t i t was construed as more extensive than the conveyance, there wou ld b e an estoppel coextensive yyith the covenant . See Blanchard v. Brooks, 12 Pick. 47, 66, 67 ; Bigelow, Estoppel (5th Ed.) 403. So in t he case of a deed by an heir presumptive of his expectancy with a cD .:Ke- na nt of ^j^sUH ant;^ . In this case, of course, there is no pretence that th e grantor has a title coextensive with his warran ty. Trull v. Eastment, 3 Mete. 121, 124, 37 Am. Dec. 126. In Lincoln v. Emerson, 108 Mass. 87, a first mortgage was mentioned in the covenant against encumbranc- es 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 for the purposes of the tenan t ' s a rgument it cannot matter what part of the deed discloses the trut h, u nless it should be suggested that a covenant of warrant y cannot be r nade more extensive than the grant, which was held not to be ttie faw in our former decision^ See also Calvert v, Sebright, 15 Beav. 156, 160.^ The q uestio n jemains whether th etenan t stands better as a purchas er whhout actu d''notice, assu ming tKa't~Ee"fiad not actual notice of !l lae s econd mortgage. 6 See Dniry v. Holden, 121 111. 1.30, 1.3 N, E. 547 (1SS7), where immediately following? the description of the lots conveyed there was the following clause : "Suhject.tn thp f<7)1niwiT^<^ in cumhrances on said dpsfriher^ p rpm^'sps: One for the principal sum of $19,606, and the other for the principal sum of $6,500." 'J'he d eed c-ontained full covenants of warr'onty and against incumbrances,. the re • ' einsr nn px p^ptions wTintever to th e r^jvpunntp ThP nnnvt ntn Til 'iiWH^'M E. 54S) said: "It is said the deed * * * contained lull covenants of war- ranty, to which there was no exc-eption : that thereby Drury's grantor covenant- ed that he would warrant and defend the lots conveyed against the holders of all incumbrances. The covenants extended only to what was conveyed, a nd Ch. 7) ESTOPPEL BY DEED 793 "It has been the settled law of this Commonwealth for nearly forty years, that, u nder a deed with covenants of warranty from one capab le o f executing it, a title afterwards acquired by the grantor mures^ y w ay of estoppel to the grantee, notonly as against the grantor, bu t a lso as against one holding by descent or grant from him after acquir - in g the new title . Somes v. Skinner, 3 Pick. 52. White v. Patten, 24 Pick. 324. Russ V. Alpaugh, 118 Mass. 369, 376, 19 Am. Rep. 464. We are aware that this rule, especially as' applied to subsequent gran- tees, while followed in some States, has been criticised in others. See Rawle on Covenants (4th Ed.) 427 et seq. But it has been too long established and acted on in Massachusetts to be changed, except by leg- islation." Knight V. Thayer, 125 Mass. 25, 27. See Powers v. Patten, 71 Me. 583, 587, 589; McCusker v. McEvey, 9 R. I. 528, 11 Am. Rep. 295 ; Tefft v. Munson, 57 N. Y. 97. I t is urged for the tenant that this rule should not be extended. _Bu t if it is a bad rul e, that is no reason for makmg a bad exception to i t. As the title would have inured as against a subsequent purchaser from the mortgagor had his deed made no mention of the mortgage, and a s by our de ci sion his covenant of warranty operates by way of estop - p el 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 opin i on that the demandant is enti- tl ed to judgment. Our conclusion is m accord with the decision in a very similar case in Minnesota. Sandwich Manuf. Co. v. Zellmer, 48 Minn. 408, 51 N. W. 379. ^ E xcep.cns overrule. _^^^,.^^ DOE ex dem. CHRISTMAS v. OLIVER. (Court of King's Bench, 1829. 10 B. & C. ISl.) BaylEy, J.* Th is case depended upon t he effect of a fine levied b y a contingent remainder-man 'in f e ei " Knn Mary the wife of Joseph Brooks Stephenson was e ntitled to an estate m fee upon the conti n- g ency of her surviving Christian, the widow of Theophilus Holm es ; and she and lier husband conveyed the premises to Thomas Chandl ess for ni nety-nine years , and l evied a fine to support that conveyanc e. C hristian, the widow, died leaving Mrs. Stephenson living, so tJia t t he contingencyupon which the limitation of the fee to Mrs. Stephen - son depended, happened, and this ejectment was brought by the as- signees of the executors of Thomas Chandless, in whom the term for that was not the lots absolutely, but the lots subject to the incumbrance . Th e r eal covenant wa g .tjbat, other ^vise than as sublect to the incumbrances named , the lots were free from all T noumbrances. anr) 1-)int-. the grantor wnnl^l -^^n r- r ant and defend the" title ." See, also, Koch v. Hustis, 113 Wis. 604, 89 i^. W. S38 (1902). "■ "• '■ The statement of facts is omitted. 794 DERIVATIVE TITLES (Part 2 ninety-nine years was vested. It was conceded upon the argume nt t hat the fine was binding upon Mr. and Mrs. Stephenson , a nd all wh o c laimed under them by estoppel ; but it was insisted that such fine op- erated by way of estoppel only ; that it therefore only bound part ies and privies, not strangers ; tliat the defendan ^ t. not being proved to co me in under Mr. and Airs. Stephenson, was to be deemed not a privy, but a stranger ; and that as to him, the estate was to be consid- ered as still remaining in Mr. and Mrs. Stephenson. To support this position, the defendant relied upon the latter part of the judgment de- livered by me in Doe dem. Brune v. Martyn, 8 B. & C. 497; and that part of the judgment certainly countenances the defendant's argument here. The rea soning, however, in that case, is founded upon the s up- p osition that a fine by a contingent remainderman operates by estopp el, a nd by estoppel onlv ; 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 imma- terial in that case ; and t he point did not there require that investigati on, w hich the discussion in this case has made necessar3 ^ We have, there- fore, given the point the further consideration it required, and are satis- fied upon the authorities, t hat a fine by a contingent remainder-m an, th ough it operates bv estoppel, does not operate by estoppel only, b ut t hat it has an ulterior operation when the contingency happens^ ; thatJ :he e state which then becomes vested feeds the estoppel; and that the fi ne o perates uPon that estate, as though that estate had been vested inj jie c ognizors at the time the fine was levied . In Rawlins's 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 ; and when Rawlins re-demised to him, then was his interest bound by the conclusion ; and when Cartwright re-demised to RawHns, now was Rawlins concluded also. Rawlins, indeed, is bound as priv}'-, because he comes in under Cartwright; but the purpose for which I cite this case is, to shew that as soon as Cartwright gets the land, his interest in it is bound. In Weak v. Lower, Poll. 54, (A. D. 1672,) Thomas, a contingent remainder-man in fee, leased to Grills for 500 years, and levied a fine to Grills for 500 years, and died. The contingency hap- pened, 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 con- tingency happened fed the estoppel ; and then the estate bv estop pel b ecame an estate in interest, and of the same effect as if the conti n- gencv 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 Ch. 7) ESTOPPEL BY DEED . 795 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 was again argued before the Lord Chancellor, Lord C. J. Hale, Wild, Ellis, and Windham, justices, and they all agreed that the fine at first enured 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 th.en t he estoppel was turned into an interest, and the cognizee had then a n e state in the land. In Trevivan v. 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 interest 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 T albot must have considered a fine by a contingent remainder-man as having the double operation of estopping the conusors till the contin - . ^ gency happened, and then of passing the estate . In that case, lands I ^■"^^-tf- Y^ ^ were devised to A. and B. and the survivor of them, aud 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 master's report. Lord Talbot held, that a fine_b y t he 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 entitled to the future interest ; consequently, his heirs claiming under him would be e stopped by reason of the fin e o f the ancestor to say, quod partes finis nihil habuerunt, 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 Tal- bot were right in treating the fee as in abeyance, and the limitation to the survivor and his heirs as a contingent remainder or not, it is evi- dent he did so consider them ; and he must have had the impressjo n t hat the fine would have operated not by estoppel onlv. but by wav o f p gissing 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, "\ ^e are to remem - ber, however, that a conti n p-fiit ^^maiader may, before it vests, b e passed by fine by way of estoppel, so as to bind the interest which shal l 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 th ough the fine operated at firs t by conclusion, and passed no interest, yet the estoppel bound 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 t he 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 b^ 796 . * DERIVATIVE TITLES (Part 2 e stoppel or conclusion so long as the contingency continued ; but th at A vhen the contingency happened, the estate which devolved upon M rs. Stephenson fed the estoppel ; the estate created by the fine, by way of estoppel, ceased to be an estate by estoppel only, and b ecame an intere st, a nd gave Mr. Chandless. and those having right under him, exactl y what he would have had had the contingency happened before the fin e was levied, Postea to the plaintiff.^ PERKINS V. COLEMAN. (Court of Appeals of Kentucky, 1S90. 90 Ky, 611, 14 S. W. 640.) Bennett, J., delivered the opinion of the court. N. G. Terr y o wned an undivided interest in the land in controve rsy, an d conveyed tlie whole oT \\^^ q_ Y{.oxz.z^ Dunham by deed of general w arran ty. Thereafter Terry inherited tliat part of the land that he Xi\4^*^^^ did not own, and t his action o f eje ctment is brought by Terrv's hei rs \^.^iji/\y^ to_recoverJh6 possession ot that par^f_dieja nd thus inherited frorn t he appelTeeT He resists the righFoTlhe appellants to recover the said land upon the ground t hat die tit le that Terry inherited was tran s- f erred to his vendee by e jtoppel. The appellants contend that the doc- 7 "By the commpa law there were only t wo classes of conyey;a nces wh ich w ere held to ope rate upon the after-acqnire d'Titl e-^-those Sy ^teoffmenf TI By^ne , or by co mmon re(i2i; ery, and tins from their solemnity and publicity, and ttiose by Indenture of lease from the implied covenants arisins; upon such inden- ttrrPST' dark v. balver, 14 Cal. 612, 627, 76 Am. Dec. 449 (1S60), per Field, C. J. See, also, Burtners v. Keran, i>4 Grat. (A^a.) 42 (1873). In Sturgeon v. Wingfield, 15 M. & W. 224 (1846), where the lessee sued the assignee of the lessor for breach of covenant made by the lessor, the defenses were (1) that there had been no demise to the plaintiff, and (2) that no rever- sion had come to the defendant. The lessor at the time of making the lease had no interest in the premises, but later acquired an interest. The court, by Parke, B., said, "On the first issue, the verdict clearly must be entered for the plaintiff, that there was such a demise to him as is stated in the declaration. Then, as to the second point, all the reversion of Hogarth, which was a rever- sion by estoppel. pas.sed from him to the defendant. This estoppel, was fed by the d(^mise for one hundred years from the Broderer's Company to Hogarth, the lessor, and thereby the lease from him to the plaintiff became good in point of interest." What would be the result where from the face of the lease it appears that the lessor has no Interest? "A., lessee for life of B., makes a lease for years by deed indented, and after purchases the reversion in fee; B. dies; A. shall avoid his own lease, fo r he m ay confess and avoid the lease which too'^Tlfect in point nf interest and .d e- t ermined by the death pf B." Co. Litt. 47b. "Debt for rent on an indenture of lease for forty years. The defendant pleaded that a year before the plaintiff made a lease for forty years to A., vir- tute cujus A. entered and was possessed ; and that thou-xh the defendant did afterwards enter, yet he was accountable to the said A. On demurrer Carthew argued, that the second lease was void for the fii-st thirty-nine yeai-s, and so was the reser\ation, and that here was no estoppel, because the last of the for- ty years passed by the lease." See Gilinan v. Hoare, 1 Salk. 275 (1673). A., lessee for five years, le ases to B. for twenty-five years, and later acquir es t he reversi on lU Itjy. VVhatrtf any, effect does such acquisition of the fee have iig6h B.'s pbiJlUOuT — '■ — -~ — ^ ' Ch. 7) ESTOPPEL BY DEED 797 trine of estoppel d £es not protect strangers to the transaction ; but only the parties an'd privies are bound thereby ; and as the appellee is neither party nor privy, he can not avail himself of the estoppel that would bar the appellants' right as against Dunham or his privies. I t is true that vyhere the estoppel merely affects the consciences o f t he partie s , and not the title, i t ; does n nf nperate on stra ngers to th e transaction ; but where it " works an interest in the land" conveyed , ' Tt 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 ^^^ Zt^ / 1 t a nd sufficient title, and not merely his present interest in the land, ^^^^J t he agreement runs with the land , and repeats itself every day; and jTIa^.^^ if the vendor, at tlie time of the conveyance, has not title to the land, X»A>tX lS^^ A but su bsequently acquire s the title, it, " eo instante." inures to the be n- efit of die vendee and his privies. In other words, it is immediately t ransferred by the law of estoppel to the vendee and his privies, be- cause by the contract, which daily repeats itself, the vendor's title, whenever acquired, is transferred to the vendee and his privies ; con- s equently, a stranger to the transaction, in an action of ejectment by t he 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 ju dgment is affirme d. y^^^d^ JORDAN V. CHAMBERS. (Supreme Court of Pennsylvania, 1910. 226 Pa. 573, 75 Atl. 956, 134 Am. St. Rep. 1081.) Ej ectment for land in Jefferson townsh ip. Before Kennedy, P. J. The facts are stated in the opinion of the Supreme Court.® Verdict and judgment for plaintiff. Defendant appealed. Brown, J. The t itle to the land involved in this ejectment passed o ut of the commonwealth in 1817 , and M ary Robb acquired title to it by deed dated September 15, 1832. After her death it was sold in 1837 by her administra tor, the father qfjhe appellant, under an orde r of the orphans' court for tHe payment of debts, and the title which the appellant claims, passed to him through su ndry conveyance s, starting with the deed from Mary Robb's administrator to Hugh Toner and ending with that of the sheriff of Allegheny county to himself. Though ^ j/^ jt an unbroken chain of title by deed was shown in the appellant, th e ^^^^^"^^^^"^ p ;roof submitted by the appellee, whose claim to title by adverse pos -y/W#'»'»^**' *• session was sustained by the jury, was that from 1837 to 1897, a period jin^>>f24mi^ ^^ of sixty years, poss ession of the land had never been taken b y the lit x^S^CA. gr antee of Mary Robb's administrator nor by any s ubse quent gran tee claimi ng under Ton er. Q^ja^^JtZ.^*' ^ « Tlie charge to the jury and certain requests are omitted. . A U 798 DERIVATIVE TITLES (Part 2 The a dverse possession upon which tlie appellee relied and recovered AjLm^ ^L*t^V started in 1865. I n that year — twenty-seven years after the sale b y ^jA Mary Robb's administrator— J ane Robb , the widow of Oliver Robb, /I '^ * Ci^ya son of Mary Robb, \ vas in possession of the farm, living on it a nd -L (^JiA^*'*^ c laiming it as her own . There was no title, in her out of Mary Ro bb. ^ " By her last will and testament, admitted to probate October 12, 1869, Jane Robb d evised the farm to her son Rob ert. On August 16, 1870, he executed & ge neral warranty deed f or tlie coal underlying the prop- erty to Thomas J. Keenan, Malcolm Hay and Robert Woods. In 1874 his interest in tlie farm, excepting the coal, was s old at sheriff' s ^rr"' sale, a nd , by various conveyances, it finally became vested in Herm an l^^*^^^*^ ^ liandel, t o whom Thomas J-. Keenan executed a deed for the qn e- t hird interest in the coal which Robert Robb had undertaken to conve y t o him in 1870. Upon the de ath of Herman Handel the property pass ed to the appellee in 1897, under proceedings in partition in the orphans' court ot Allegheny county. Under instructions free from error as to the measure of proof required from the appellee to sustain I /)^^^^ t itle claimed to have been acquired by her by adverse possession , j)^ jl^^iA^-^ML t he jury, with ample evidence before them, found her title to be goo d. I '^^L It IS most earnestly contended that, as tlie title to two-thirds of the ^ coal is still outstanding in Malcolm Hay and Robert Woods, or their •i(f'^^^^\^ ^y\ representatives, under the deed of 1870 from Robert Robb, a general ^^^♦"lil*^ I verdict in favor of the plaintiff for tlie land, including the coal, ought "'T^/«#**'*^ / not to be sustained. While at first blush this may seem plausible, it is clear, upon reflection, that it cannot avail the appellant. When Ro bert Robb conveyed the coal in 1870 he had no interest in it nor in the su r- f ace above itT ~ In lUbb — tive years before — Jane Robb, his mother, became the adverse occupant o f the property, and for five years after her death he continued the adverse possession as her devisee, but_dur: in g those ten years neither""she nor he acquired any right in the prop - e rty as against the real owner or owners, and against them nothin g could have been acquired by adve rse posses sion until the fullsta tu- t ory period oT twenty-one years' adverse possession ha d expired. Dur- ing all those twenty-one years the trespassers could at any time have been driven from the land by the holders of the paper title. Duxing t lmt period there was no title at all in Jane Robb or in anyone claim - i ng under her as the adverse occupier of tlie premises. In 1886, and not before, title by adverse possession became rooted in the land, but its roots went no deeper than 1886. "If, according to Lord Mans- field, the right of possession is taken away from the former owner, and according to Chief Justice Tilghnian, it is acquired by the disseisor's occupancy for the statutory period. Judge Gibson was strictly accurate when he said, in Graffius v. Tottenham, 1 Watts & S. 494, 37 Am. Dec. 472, that th e effect of the statute was to transfer to the advers g- o ccupant the title against which it has run. He added, 'the title of the original owner is u naffecte d and un tramm elled t ill the last moment , and when it is vested in the adverse occupant, by the completion of Ch. 7) ESTOPPEL BY DEED 799 t he statutory bar, the transfer has relation to nothing which preceded it- , the instant of conception is tlie instant of birth. ' " Woodward, J., in Schall et al. v. WiUiams Valley Railroad Co., 35 Pa. 191. B^the dee_ d_from Robb to Keenan. Hay and Woods tliere was no severanc e of the coal. There could not have been, fo r the deed conv eyed noth- i no- to them? Neither these grantees nor any one claiming under them at any time before or since the acquisition of the title by adverse pos- session in 1886 have made any attempt to sever the coal from the surface. I n 1886. when title bv adverse possession vested in Handel, then J n p ossession of the surface, not only it, but what was beneath it^ vested i n him : but when the title so vested in him he was in the same posi- tion as Robb would have been in 1886, if still in adverse possession of the property, claiming ownership in it by such possession. Havin g u ndertaken to convey the coal when he had no title to it. if rnn fronted b y his conveyance of the same at the time of his acquisition of titl e by adverse possession, h e would have been estopped, as against h is grante es, from denying t heir equitable ownership in the coal and cou ld i rave been compelled to convey to them. ("It is not to be doubted that' a vendor who undertakes to sell a full title for a valuable considera-, tion, when he has less tlian a fee simple, but afterwards acquires tliv fee, holds it in trust for his vendee, and will be decreed to convey it to his use."J Clark v. Martin, 49 Pa. 299. In Chew v. Barnet, 11 Serg. & R. 389, Judge James Wilson conveyed to Chew before he had title to the property. A conveyance was subsequently made to him by his vendors under articles of agreement with him. To secure the purchase money he executed a mortgage upon the property upon which it was subsequently sold at sheriff's sale. When Chew, in an action of eject- ment, sought to recover the property from the sheriff's vendees, it was held that their title was paramount to his, and it was said by Gibson, J. : "What is the nature of the estate which Mr. Chew acquired by the conveyance from Judge Wilson? When that conveyance was ex- ecuted, the legal title was in Jeremiah Parker, by patents from the commonwealth ; and Judge Wilson having nothing but an equitable ti- tle under the articles, could convey nothing more ; his deed, therefore, passed to Mr. Chew only an equitable title. But it is said, the subse- quent conveyance from Jeremiah Parker to Judge Wilson inured to the benefit of Mr. Chew. It did so ; but only in equity, and to entitle liim to call for a conveyance from Judge Wilson ; and not as vesting the title in him, of itself, as contended, by estoppel. T he fa cts pre- sented constitute the ordinary case of a conveyance before tli e granto r has acquired the title ; in which the conveyance operates as an ?^o^rep - ment to convev. which, when the title has been subsequently acquire d. may be enforced in chancery. 'A Where one conveys wit h a general warranty la nd which he does not own at the time, but afterwards acquires the ownership of it, t he prin- ciple of estoppel is that such acquisition inures to the b-enefit of the ^2h>«-*-v^(^ n 8U0 DERIVATIVE TITLES (Part 2 g rantee, because the grantor is e s topped to deny, against t he terta^ of his warranty, that he had the title in questio n. Burtners v. Keran, 24 Grat. (Va.) 42. But the estoppel of the grantor, who subsequently acquires title for what he had und£rtal^n^io_^2ieyiousl};_sell, inures only to the benefit of his grantee, who can compel a proper convey- a nce after tlie acquisition of title by the grantor. T hose who w ere not privies or p arties to the original conveyance can take no advan - t age of estoppel arising from it . ""AllerTyr Allen, 45 Pa. 468. Estoppel s may hp hy HppH hnt f^<;|-npppk h y Heed avail Only in favor of parti es and privies. Sunderlin v. Struthers, 47 Pa. 411. To this appellant the estop pel of the appellee a s agai nst Robert Robb's conveyance o f the coal is unavailing, for Yie was no party or p rivy to it. _ The situa- tion as It existed at the time this ejectment was brought was a title in the appellee for herself absolutely to the surface and one-third of the coal, and as trustee for Hay and Woods, or those claiming un- der them, for an equitable title to two-thirds. B ut this outstanding eq- ui table title to a portion of the coal was of no avail to the appellant a s a gainst the appellee, the hol der of t he legal title to the surface ajiA of t he coal, entitled under that title to possession of b oth . In 1902 an ejectment was brought for this land by Rebecca J. Ben- nett et al., clai ming by desce nt from Mary Robb. The original de- fendant in the action was the present appellant, but the appellee and others, as claimants, were made co-defendants. The jury were sworn as against all the defendants, and the verdict having been rendered in their favor, the further contention of the appellant is that his title is res adjudicata, in view of that verdict. All that heed be said as to t his is that the verdict was in favor of all the defendants, but settled no title in dispute among tliemselve s. Whether Chambers could as- sert title as against his codefendants, or any of them, remained, as the court properly said in overruling a motion for a new trial, to be settled in a controversy likely to arise between them. This is that con- troversy. Nothing in the assignments of error calls for further discussion. They are all overruled and the jud gment is affirmed." » A. made a deed of premises to B., with general covenant of warrani:^ ; the next .V(\'ir a (1(M'(1 of the same premises was mado l)y "X.""fo 'AT,' Who thcrtMipon \vo\\\ into imsscssiou and continued therein for the period of the statute of liiH- ItTitions. In an action of ejectment by a .grantee of B., it was held that A. was entitled to judfonent. Chatham v. Lansford, 149 N. C. 363, 63 S. E. 81, 25 L. R. A. (N. S.) 129 (1908). Ch. 7) ESTOPPEL BY DEED 801 JARVIS V. AIKENS. (Supreme Court of Vermont, 1S53. 25 Vt. 635.) Appeal from the Court of Chancery. The bill was brought by the orator to_foredo^se_a mortgage, dated the 19th day of July, 1845, and to forecl ose the equity of redemption, of Daniel Aikens and those claiming under him, of three pieces or parcels of land in Barnard, de- scribed in said bill and mortgage, as follows : one piece of about o ne hundred acr es, called the "Paul Ellis Farm." One other piece of land contammg about o ne hundred acres Jcnown as the "Lease Lot." And also a piece of land contammg about fifty acres. Th e bill was in the usual form. * * * H enry Murphy answering says, that he claims title to a certain part of the mortga ged premises described in the orator's bill as th e " Lease Lot. " And turtner says,, that he will insist in defence to said action, that on the 20th day of November , 1848, the said "Lease Lot,"» belo nged to the Society for the Propagation oi t he Gospel , &.C., — s ub- j ect to such interest a s the orator might have by virtue of the mort- gage deed from said Aikens to him, m euLiuiied in said - bill of com - plaint, which interest extended only to the unexpired portion of the lease formerly made by said Society to one Abial Frye, dated January 1st, 1836, for the term of thirty years thereafter. That on said 20th day of November, 1848, said Society executed a durable lease of sa:id land to the said Aikens, and t hat on the 27th day o f November, 1848, th e said Daniel Aikens conveyed to thi s defendant by deed o f war- r anty the same premises, subject to the payment of a yearly rgn t to said Society, in consideration of $300, paid by this defendant . That on the first day of January, 1836, said Society were the ex- clusive owners of the premises, and d id lease the same, to sai d Frye for t hirty years for a certain reserved re nt ; that said Frye gave a mor t- gage deed to one Willard Caryl, and said Caryl afterwards quit-claim ed t o one A. Howe and others, all of whom qu it-claimed their interest to t he said Aikprm That afterwards, and previous to the time of the execution of the orator's deed by the said Aikens, said Aikens contracted in writ- ing for the sale of the same to one William Dutton, and that he took possession under said contract ; that afterwards while said Frye and said Dutton were both in possession, said Society commenced their ejectment suit for the possession of the premises, in the Windsor Coun- ty Court, and at the November Term of said court, in 1846, did re- cover the possession of the same. Catherine Murphy answering, sets forth the same facts, and says that said Henry Murphy, before the bringing of the orator's bill, exe- cuted and delivered to her a deed of the said premises, which deed Aig.Peop. — 51 802 DERIVATIVE TITLES (Part 2 is now in full force, by the reasons of which, this defendant claims the premises aforesaid. Daniel Aikens did not answer. Testimony having been taken upon the matters in issue between the orator and said Sarah A. Goddard, the cause, December Term, 1852, was heard on the bill and answers of said Henry and Catherine Murphy ; and on the bill, pleadings and evidence, as to said Sarah ; and at said term, the Court of Chancery decreed that as to said Henry and Catherine Murphy, and said Sarah A. Goddard, and the several parts of the premises aforesaid by them, respectively claimed, being the "Paul Ellis Farm," so called in the bill, and the "Lease Lot," so called in the bill, stand dismissed out of, said bill ; and foreclosure on the other premuses. Bennett, J.^° This case comes up by an appeal from the Court of Chancery. T he bill is brought to foreclose the equity of re demp- t ion, of Daniel Aikens and those claiming under him, in certain par- c ^s of lands, described in t he bill- of complain t, a nd in the mort- * gage deed from said Aikens to the orator, bearmg date the 19i:h da v of July, 1845. and recorded the same day. * * * The more important question is, in relation to the "Lease I^ot" so called. Though it may be true that this lot was, in 1836, leased by the Society for the Propagation of the Gospel in Foreign Parts, to Abial Frye for a period of thirty years; and he mortgaged it to Wil- liam Caryl ; and though the premises may have come by quit-claim to Daniel Aikens, yet it is clear, that without resort to what shall be the effect of the recovery in ejectment, by the Society against F.rye and Dutton, the present plaintiff cannot rely upon any title which Ai- kens had to this lot under the Frye lease. Tiie title which Caryl had from Frye was but a mortgage, and there is nothing in the case to show, that Caryl's debt against Frye is outstanding, or that it passed into the hands of Aikens. His title is stated to be by quit-claim deed. As our courts have decided, that a mortgagee cannot main- t ain ejectrne ri^' ^ftpr th^ rnortg a ge debt has been paid, and that^t o rebut the presumption of payment^ the mortgage notes should ^ be p roduced, or accounted for otherwise : it would seem to follow, that so far, at least, there was no title in Aikens for him to convey; but it is claimed that Aikens, after he had executed his mortgage to the plaintiff, took a durable lease of this lot from the propagation So- ciety, and that this after title, inured to the benefit of Jarvis. It appears, that the date of the Society's lease to Aikens was the 20th day of November, 1848, and recorded the same day; and that on the 27th day of November, 1848, Aikens conveyed, by a deed of warranty, the lot to Henry Murphy; and after this. Murphy conveyed by a deed of warranty, to Catherine Alurphy; and the question is, \ Adiich title shall preva il. 10 The parts of the statement of facts and of the opinion relating to the "Paul Ellis Farm" are omitted. Ch. 7) ESTOPPEL BY DEED 803 It is not seriously claimed by the counsel for Catherine Murphy, but what the subsequent title acquired by Aikens, would inure to the benefit of Jarvis, so as to estop Aikens and his heirs from claiming title against him and his assignees ; but it is said that the principle should not be applied, as between the purchaser and a subsequent purchaser from the grantor, and that to so apply it, would be at war with our registry system. This is a point of some importance, and well deserves consideration. We need cite no authorities to show, that Aikens him- self would be estopped from setting up title against Jarvis, because he might sue Aikens on his covenants, if he was not estopped; and the law abhors circuity of action; but it is said, if Jarvis can claim the premises, as against Aikens, to save circuity of action, yet as against Murphy no such reason exists, and the only question is, which shall be compelled to resort to the covenants in Aikens' deeds, Jarvis, or Murphy? In Trevivan v. Lawrence et al., 1 Salk. 276, it was held that the parties, and all claiming under them, were bound by an estop- pel, and the court put the case, as between the purchaser and a sub- sequent purchaser from the grantor. In the same case, reported in 6 Mod. 258, and Ld. Ray. 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 interest in, or working upon the estate in the land, and as running with the land to whoever takes it. The covenants in Aiken s' d^ed to Jarvis, may well be said to have a double operation, first as an estoppeT. and secondly to pass the estate, tlie instant that Aikens b e- c arne the owner. The covenants bound Aikens, as an estoppel, until he took his dur- able lease from the Society, and then the estate, which devolved upon him, fed the estoppel, and the estate created by the covenants in Aikens' deed by way of estoppel, ceased to be an estate by estoppel only, and became an interest, and gave the orator precisely what he would have had, in case the durable lease had been executed to Aikens be- fore his mortgage deed to the orator. The estoppel, when it run s \ ^th the la n d, operates upon the title, so as actually to alter the in- terest m It, i n the hands of the heir, or assigns of the person bound by^the e stoppel, as well as in the hands of such person himself. It was said, by Lane, J., in the case of Douglass v. Scott, 5 Ohio, 198 "that the obligation created by estoppel, not only binds the party making it, but all persons privy to him ; the legal representatives of the party, those who stand in his situation by act of law, and all who take his estate by contract, stand in his stead, and are subjected to all the consequences, which accrue to him. It adheres to the land, is transmitted with the estate, it becomes a muniment of title, and all who afterwards acquire the title, take it subject to the burden, which the existence of the fact imposes upon it." We think this view is in accordance with the adjudged cases. See Rawlins' Case, 4 Coke, 52 ; Weale v. L , Pollexfen, 60; Christmas et al. v. Oliver, 10 Barn. & Cres. 181 : Coke. Littleton, 352 (a); Wark v. Willard, 13 N. H. 389; 804 DERIVATIVE TITLES (Part 2 White V. Patten, 24 Pick. (Mass.) 324; Dudley v. Cadwell, 19 Conn. 227; Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 567, 49 Am. Dec. 189. In this view of t he case, our registry system can ji ave no control of the~question ~ There was no title in Aikens, when he deeded to Henry Murphy, it had before passed to Jarvis, and was vested in him. In the case from 24 Pick. (Mass.) 324, the point was specially made by counsel, that this doctrine was in conflict with their regis- try system; but the court did not regard the objection. The same objection has been made in other cases, but without effect. We see no re ason, why this doct rine should not be extended to a mortgage deed with the usual covenants, as well as to an absolute deed, and indeed in the case of 24 Pick. 324, the claimant's title was un - der a mnrfcrafTP rJeed Though it may be true, that before the lease was executed by the Society to Aikens, Henry Murphy paid sixty dollars to the Society towards rent, which was in arrear, and which was to be a part of the consideration which he was to pay to Aikens for his deed ; but this cannot create a resulting trust in Murphy, to any portion of the land, which can avail against the legal title of Jarvis. It was in fact money paid by Murphy to the use of Aikens. Nothing can be made out of this, that can aid Murphy in this controversy. We think then, that the decree of the Chancellor should be re- versed, as to Henry and Catherine Murphy with costs ; and a decree of foreclosure pass against them as to the "Lease Lot," and in other respects affirmed.^' RESSER V. CARNEY. (Supreme Court of Minnesota, 1S93. 52 Minn. 397, 54 N. W. S9.) Appeal by plaintiffs, William C. Resser and Charles Davison, from a judgment of the District Court of Ramsey County, Kelley, J., entered March 15, 1892, that they take nothing by the action and for costs. Dickinson, J, Action for breach of covenant of seisi n contained in a deed of conveyance executed by the defendant to the plaintiffs in February, 1882. Whatever title the defendant had to convey, and whatever title may have subsequently inured to the plaintiffs as his grantees, was derived from the United States through the Northern Pacific Railroad Company; the land being within the indemnity limit of the land grant to that corporation. The chain of conveyances to which attention is directed is as follows : In 1879 the Northern Pacific Railroad Company conveyed to Paine, n A. conveyed premises to B., and later conveyed the same premises to C, with covenant of warranty "against all persons claiming by, through, or under A." B. afterwards reconveyed to A., and D., a creditor of A., levied upon the land as the land of A. Had A. a leviable interest? See Wheeler v. Young, infra, p. 862, and cases there referred to. Ch. 7) ESTOPPEL BY DEED 805 and in 1880 Paine conveyed to Kindred, and the latter to the de- fendant, Carney, all such conveyances being by warranty deed. Feb- ruary 28, 1882, Carney conveyed, by warranty deed containing a covenant of seisin, to the plaintiffs. This action is for a breach of the covenant contained in that deed. Of the purchase price, $4,480, there was paid the sum of $2,480. On the same day the plaintiffs exe- cuted to their grantor, the defendant, a mortgage on the same land to secure the unpaid part of the purchase price. Subsequently, and in the same year, 1882, the plaintiffs conveyed to other parties, who in 1887, prior to the commencement of this action, reconveyed to the plaintiffs. I n Tulv. 1886. the mortgage given by the plaintiffs wa s f oreclosed under the power therein contained, the defendant purcha s- i ng the property at the foreclosure sa le, and n o redemption w as made therefrom. The premises have always been va cant and unoccupied. This action was commenced in November, 1887. In April, 1891, the United States executed a patent conveying the land to the Northern Pacific Rail- road Company, in which patent it was recited that the land had been selected by an agent of the railroad company, "as shown by his orig- inal list of selections, certified under date of March 19, 1883, and April 9, 1883, by the register and receiver at Fargo, State of Dakota." It does not otherwise appear when this selection was approved by the secretary of the interior. The selection of indemnity lands, which was to be made "under the direction of the secretary of the interior," (13 St. at Large, p. 367, c. 217, § 3,) did not become effectual, nor did the title pass from the United States, at least until the selection was approved, or in some way sanctioned by the secretary of the interior; and hence, so far as appears in this case, not until the issuing of the patent, in April, 1891, which evidences such approval. Musser v. McRae, 38 Minn. 409, 38 N. W. 103 ; Id., 44 Minn. 343, 46 N. W. 673 ; United States v. Mis- souri, K. & T. Ry. Co., 141 U. S. 358, 12 Sup. Ct. 13, 35 L. Ed. 766. H ence it will be observed that at the time of the conveyance from the d efendant to the plaintiffs, February, 1882, the title was still inth e United States, and that it was not until some nine years thereafte r. nor until more than three years after the commencement of thisacti on , t hat the title was conveyed to the railroad company . Not until then could such title have been transmitted, or have inured by operation of law, to the grantees of that company, immediate or remote. In o ther words, the covenant of seisin appears to have been wholly brolce n when it was made, s o that the plaintiffs; had a rjo-ht of action _ to recover t he purch ase money paid ; and not until after this actioo was commenced was "the defendant in a position, so far as appears, to_j n- vo ke the application of the principle that a title acquired by a granto r after a conveyance by him, with covenants, inures to the benefit of his covenantee. The question here presented is whether that principle O 806 DERIVATIVE TITLES (Part 2 i s_to ^e applied, under such circumstances, to defeat a recovery on th e covenant broken. Otherwise expressed, the question is whether the f ^ ti tle acquired during the pendency of the action for breach of cove - Vl„--' nant was a ctually transferred to and vested in the plaintiffs by operatio n ol law, so, that they were compelled to and did actually acquire it, e ven without their consent and against their wil l. If so, that fact would probably be available to the defendant in defense of such an action, or at least in mitigation of damages. Upon the questio n thus presented, the law cannot be said to be set- tled. In support, wholly or to some extent, of the proposition "tKat 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, a nd hence will mitigate the damages recoverable for b reach of covenant , or wholly defeat an action for damages, acc ord- i ng to the circumstances of the case^ may be cite d Baxter v. Bradbury, 20 Me. 260, 37 Am. Dec. 49; King v. Gilson's-Adm'x, 32 111. 348, 83 Am. Rep. 269; Reese v. Smith, 12 Mo. 344; Morrison v. Underwood, 20 N. H. 369; Knowles v. Kennedy, 82 Pa. 445; Farmers' Bank v. Glenn, 68 N. C. 35; Cornell v. Jackson, 3 Cush. (Mass.) 505; Boulter V. Hamilton, 15 U. C. C. P. 125, citing doe v. Webster, 2 U. C. O. B. 225. See, also. Knight v. Thayer, 125 Mass. 25. In some of these cases, however, it may be noticed that the plaintiff* was in pos- session of the granted lands under his deed, Qn the contrary, the doctrine is well supported by authority tha t a grantee to whom no title passed by the deed of conveyance, who ac- quired no possession, and no right of possession, may recover th e purchase monev paid^ with interest, in an action for a breach of th e covenant of seisin , even though the grantor may have acquired a tit le d uring the pendency of such an action, or, perhaps^ even prior to its commencement ; t hat the grantee is not to be compelled to acc ept t he after-acquired title in satisfaction of the already broken covenan t of seisin, or in mitigation of damages recoverable for the breac h. Blanchard v. Ellis, 1 Gray (Mass.) 195, 61 Am. Dec. 417; Tucker v. Clarke, 2 Sandf. Ch. (N. Y.) 96; Bingham v. Weiderwax, 1 N. Y. 509; Nichol v. Alexander, 28 Wis. 118; Mclnnis v. Lyman, 62 Wis. 191, 22 N. W. 405; Burton v. Reeds, 20 Ind. 87, 93; Rawle, Cov. §§ 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 covenants contained in the deed, as would an evic- tion if possession had been acquired. Fritz v. Pusey, 31 Minn. 368, 18 N. W. 94; Shattuck v. Lamb, 65 N. Y. 499, 22 Am. Rep. 656. Ch. 7) ESTOPPEL BY DEED 807 To our minds the authorities last cited present the view of the law most consistent with reason and with familiar legal principles, as we ll as the rule most conducive to justice, in its practical application . It is certain, if the defendant's deed conveyed no title, that the plain- tiffs 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 still insist upon the legal right. We cannot understand how that perfect, absolute legal right of action, and especially after an action has been already instituted, is defeated; how the right, at the election of the grantee, to enforce his action for the breach of the covenant is taken away or lost by any proper application of the principle that an after-acquired title inures to the benefit of the grantee, by force of his covenants, and upon principles embraced within the general doctrine of estoppel. We do not concur in the proposition that the principle just referred to is effectual to actually transfer and vest in the covenantee an estate acquired by the covenantor subsequent to his conveyance. See, in addition to the authorities above cited, Bucking- ham V. Hanna, 2 Ohio St. 551 ; Burtners v. Keran, 24 Grat. (Va.) 42, 67; Chew v. Barnet, 11 Serg. & R. (Pa.) 3S9, 391. Indeed, that the estate is thus actually transferred to the covenantee, without resting in the covenantor, to whom the after-acquired title is in terms conveyed, is inconsistent with the idea of an estoppel binding the latter and those in privity with him ; and y et it is not to be doubted that the doctrin e w hich we are considering really rests upon the ground of estoppel. It i s founded on equitable principles , and aff'ords to a grantee with cov- enants a remedy of an equitable nature with respect to a title acquired by the grantor after he had assumed to convey the same; and doubt- less courts of law, at this day, recognize and apply the principle of estoppel, in such cases, as courts of equity are wont to do. They will treat the after-acquired title as though it had been conveyed, when equity would decree that a conveyance be made. Rawle, Cov. § 258. But t his equitable right is one in favor of the covenantee, restin g u pon the estoppel of the covenantor to assert, as agamst him, n titl e t o the property. If the grantee acquires nothing by the deed to him, and has and asserts a legal cause of action for covenant broken, jio p rinciple of e stoppel operates against him, to compel him, perhap s y ears afterwards, as in this case, to accept, in satisfaction of that legal c ause of action, wholly or partially, a title which his covenantor ma y then procu re. The latter, whose covenant has been wholly broken, has no right to elect, as against the covenantee, and to his prejudice, whether he will respond in damages for the breach by repaying the purchase money, or buy in the paramount title, when the value of the property may have greatly depreciated, and compel the plaintiff to ac- cept that title. T he right of election is. and should be. with the other party.. He had the benefit of the estoppel, but it is not to be imposed upt)" him as a burden, at the will of the party who alone is subjec t 808 DERIVATIVE TITLES " (Part 2 t o the estoppel. Hejn ay elect to pursue the action at law, and recov er t he consideration paid fo?a title~which was not conveyed to him . At l east, he mav so elect, as the plaintiffs d id in thi s case, at any time ^- f ore the acquisition of the title by the covenanto r. The case of Burke v. Beveridge, 15 Minn. 205, (Gil. 160,) did not require a consideration of the question now before us. The decision necessarily rested upon another ground; and while, in the opinion of the court, Baxter v. Bradbury, supra, is referred to wnth approv- al, we do not. accept the dictum as expressing the law on this sub- ject. The respondent adopts the memorandum or opinion of the learned judge who tried the cause, in place of a brief, for the purposes of this appeal. We infer that the respondent relies upon the proposition, upon which the court based its decision, that, by reason of the fore- closure of the purchase-money mortgage, the purchase by the defend- ant at the foreclosure sale, and the nonredemption therefrom, the plaintiffs' right of action for breach of the covenant of seisin has been extinguished ; that it passed from the plaintiffs back to the defendant, the vendor, when by the foreclosure the plaintiffs were divested, and the defendant reinvested, with whatever estate or interest was con- veyed by the deed. Kimball v. Bryant, 25 Minn. 496, is cited in this connection. This contention must rest upon the familiar legal prop- osition that, a right of action by a grantee upon covenants which run with the land does not remain in him after he has transferred the es- tate, but passes with it. But we do not deem the proposition applicable to the case here presented. It will be kept in mind that the mortgage was executed by the ven- dees to the vendor contemporaneously with the conveyance made to the former by the latter, and for the purpose, merely, of securing the pay- ment of a part of the purchase price. We may state, without discussing the proposition, that the vendees were not estopped or precluded, by the covenants in their mortgage to the vendor, from recovering for a breach of the similar covenants contained in the deed of the latter to them. Sumner v. Barnard, 12 Mete. (Mass.) 459; Brown v. Staples, 28 Me. 497, 48 Am. Dec. 504; Smith V. Cannell, 32 Me. 123; Haynes v. Stevens, 11 N. H. 28; Con- nor V. Eddy, 25 Mo. 72; Rawle, Gov. (5th Ed.) § 266. In Kimball v. Bryant, supra, it^ was considered that, if the granl ee u nder a deed of conveyance with a covenant of seisin conveys the same l and to another, it may be presumed, "unless there be something to s how a contrary intention," that, although the covenant was broke n V jixen it was given, he intends to confer on his grantee the benefit of the c ovenant, so far as necessary for his protection ; tn transf er Vn'p rJcrhf to sue for the br each,_so far as his grantee sustains injury by reaso n of it. But in a case like that under consideration the circumstances do "show a contrary intention." When the plaintiffs purchased the prop- Ch. 7) ESTOPPEL BY DEED 809 erty, and took a deed with covenants embracing that of seisin, the presumption is irresistible and conclusive that the covenant was in- tended by both parties to the deed to be effectual as an obligatory assurance of title, p-i vinord Chancellor Hardwicke said : "This case depends upon the notice the defendant had of the judgment before his mortgage was registered. The register act, the 7th of Anne, c. 20. is notice to the parties, and a notice to everybody; and the meaning of this statute was, to prevent parol proofs of notice, or not notice. But notwithstanding there are cases where this court have broken in upon this, though one incumbrance was registered before another, but it was in cases of fraud. * * * There may possibly have been cases upon notice divested of fraud, but then the proof must be extremely clear. But though in the present case there are strong circumstances of notice before the execution of the mortgage, yet, unon mere suspicion only, I will not overturn a positive law." See, however, Whitbread V. Boulnois, 1 Y. «& C. (Ex. R.) 303 (1S35). Ch. 8) PRIORITIES 835 county, and when so recorded the record thereof shall have the same force and effect as though it was of the original conveyance. Section 1214. Every conveyance of real property, other than a lease for a term not exceeding one year, is void as against any subse- quent purchaser or mortgagee of the same property, or any part there- of, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless such conveyance shall have been duly recorded prior to the record of notice of action. Kerr's Cyc. Code. REVISED LAWS OF ILLINOIS (1912). Section 28. Deeds, mortgages, powers of attorney, and other in- blruments relating to or affecting the title to real estate in this state, shall be recorded in the county in which such real estate is situated ; but if such county is not organized, then in the county to which such unorganized county is attached for judicial purposes. Section 30. All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice ; and all such deeds and title papers shall be adjudged void as to all such credi- tors and subsequent purchasers, without notice, until the same shall be filed for record. Section 31. Deeds, mortgages and other instruments of writing re- lating to real estate shall be deemed, from the time of being filed for record, notice to subsequent purchasers and creditors, though not ac- knowledged or proven according to law ; but the same shall not be read as evidence, unless their execution be proved in manner required by the rules of evidence applicable to such writings, so as to supply the de- fects of such acknowledgment or proof. Kurd's Rev. St. c. 30. REVISED LAWS OF MASSACHUSETTS (1902). Section 4. A conveyance of an estate in fee simple, fee tail or tor life, or a lease for more than seven years from the making thereof, shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in section fifteen of chapter twenty-two, is recorded in the registry of deeds for the county or district in which the land to which it relates is situated. Chapter 127. 836 DERIVATIVE TITLES (Part CONSOLIDATED LAWS OF NEW YORK (1909). Section 290. L The term "real property," as used in this article^ includes lands, tenements and hereditaments and chattels real, except a lease for a term not exceeding three years. 2. The term "purchaser" includes every person to whom any estate or interest in real property is conveyed for a valuable consideration, and every assignee of a mortgage, lease or other conditional estate. 3. The term "conveyance" includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument postponing or subordinating a mortgage lien ; except a will, a lease for a term not ex- ceeding three years, an executory contract for the sale or purchase of lands, and an instrument containing a power to convey real property as the agent or attorney for the owner of such property. Section 291. A conveyance of real property, within the state, on be- ing duly acknowledged by the person executing the same, or proved as required by this chapter, and such acknowledgment or proof duly cer- tified when required by this chapter, may be recorded in the office of the clerk of the county where such real property is situated, and such county clerk shall, upon the request of any party, on tender of the law- ful fees therefor, record the same in his said office. Every such con- veyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded. Chapter 52, art. 9. GEN. CODE OF OHIO. Section 8542. All mortgages, executed agreeably to the provisions of -this chapter, shall be recorded in the office of the recorder of the county in which the mortgaged premises are situated, and take effect from the time they are delivered to the recorder of the proper county for record. If two or more mortgages are presented for record on the same day, they shall take effect from the order of presentation for record. The first presented must be the first recorded, and the first recorded shall have preference. Section 8543. All other deeds and instruments of writing for the conveyance or incumbrance of lands, tenements, or hereditaments, ex- ecuted agreeably to the provisions of this chapter, shall be recorded in the office of the recorder of the county in which the premises are situated, and until so recorded or filed for record, they shall be deemed Ch. 8) PRIORITIES 837 fraudulent, so far as relates to a subsequent bona fide purchaser hav- ing, at the time of purchase, no knowledge of the existence of such former deed or instrument. Page & A. Gen. Code. OREGON LAWS. Section 7129. Every conveyance of real property within this state hereafter made, which shall not be recorded as provided in this title within five days thereafter, shall be void against any subsequent pur- chaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance shall be first duly recorded. Lord's Oregon Laws, 1910. (B) Scope of Operation and Effect of Statutes SIMONSON V. WENZEL. (Supreme Court of North Dakota, 1914. 27 N. D. 6.3S, 147 N. W. 804.) FiSK, J.* This is an appeal from a judgment of tlie district court of McHenry county, decreeing the foreclosure of a real-estate mortgage in plaintiff's favor. The appeal is upon the judgment roll proper, ap- pellants' contention being that the conclusions of the trial court are not warranted by the findings of fact. Such findings of fact are in substance as follows : 1. That on and prior to March 20, 1906, the defendant, Dakota De- velopment Company, was the owner in fee of the real estate in con- troversy as disclosed by the public records in the office of the register of deeds. On such date this company entered into an executory con- tract with defendant Carl F. Wenzel, in the usual form, whereby, for a stated consideration of $100, $35 of which wa^ paid in cash and the balance to be paid in equal instalments on March 20, 1907, and March 30, 1908, with interest, it promised and agreed to sell and convey such premises to the said Wenzel, such contract obligating the purchaser to pay all taxes and assessments levied, assessed, or imposed upon the premises in each year, and also contained a stipulation that "no assign- ment or transfer of any interest in and to this agreement or the lands described, less-than the whole thereof, will be recognized by said vendor under any circumstances or in any event whatever, and no assignment shall be binding upon the vendor unless approved by its president." It also contained a stipulation "that time is to be the very essence of tliis agreement." Such contract also contained other stipulations relative » Portions of the opiiiion are omitted. 838 DERIVATIVE TITLES (Part 2 to the vendor's right to declare a forfeiture in case the vendee failed in any respect to comply with his part of the contract, but we deem it un- necessary to set such provisions out in extenso. 2. Defendant Wenzel entered into the possession of the premises, and constructed a dwelling house thereon, which he and his family occupied as their homestead until about January 20, 1908, when he sold and assigned such contract to defendant M. C. Krupp. 3. On April 17, 1907, Wenzel and wife, for a valuable consideration, executed and delivered to plaintiff their promissory note for the sum of $914.70, payable on November 1st thereafter, with interest at the rate of 8 per cent per annum ; and to secure the payment thereof they ex- ecuted and delivered to plaintiff a mortgage on the land in controversy, which was filed in the office of the register of deeds of McHenry coun- ty on April 18, 1907, and recorded in Book 31 of Mortgages, at page 516. 4. That such note and mortgage have not been paid, and plaintiff is the present owner and holder thereof. 5. That Carl F. Wenzel paid to the Dakota Development Company the sum of $35 at the time of the execution of the contract for deed, but made default in the payment due March 20, 1907, and the same was not paid until after the assignment of such contract to defendant Krupp, as hereinafter set forth. That such contract for deed was at no time recorded or filed for record in the office of the register of deeds of McHenry county, and the record title of the premises at all times up to January 29, 1908, remained in tlie Dakota Development Company. 6. On or about January 20, 1908, Wenzel, while in possession of said land as his homestead, entered into negotiations with defendant Krupp for the sale to him of the contract for deed aforesaid, and the premises therein described, upon the terms that such contract was to be assigned to Krupp, who was to receive a warranty deed of the prem- ises direct from the Development Company. Wenzel and wife there- upon assigned their interest in such contract to Krupp, and the latter paid to the Development Company the amount then remaining due up- on said contract ($65 and interest), and Krupp also paid to Wenzel the agreed consideration of $1,000 less the payment aforesaid to the De- velopment Company, and the Development Company did not, nor did its president or any one of its authorized officials, have any knowl- edge or actual notice of the execution or delivery of the mortgage to the plaintiff aforesaid. 7. That defendant Krupp purchased Wenzel's interest in such con- tract in good faith, and without any actual notice or knowledge of the existence of plaintiff's mortgage, and he had no intent to cheat or defraud the plaintiff, but acted in absolute good faith in the making of said purchase, and purchased and paid for the same in utter ignor- ance of the plaintiff's mortgage, but he knew that Wenzel and family were living on and occupying said premises, but had no notice or Ch. 8) PRIORITIES 839 knowledge of such mortgage other than that imparted by the record thereof. 8. On January 24, 1908, the Development Company duly executed and delivered to Krupp a warranty deed in the usual form, conveying the premises to him, which deed contained the usual covenants, and which was duly filed for record on January 29, 1908. 9. The trial court also found that the defendant Wenzel was on March 3, 1910, adjudged a bankrupt in- the Federal court, and on June 22, 1910, that court, in due form, discharged him from all debts and provable claims, the notes held by plaintiff being scheduled in such bankruptcy court. Upon such findings of fact the district court made conclusions of law favorable to plaintiff, adjudging a foreclosure of his mortgage. Among other conclusions, the trial court found that at the time of the execution of the mortgage by Wenzekhe had a mortgagable inter- est in and to the said premises by virtue of the contract for deed, and that the recording of such mortgage was due and legal notice to all the world of the rights of the plaintiff as mortgagee, and that defend- ant Krupp therefore had constructive notice of such mortgage at the time he purchased the assignment of the contract for deed to the said premises, and the conveyance of the premises to hira by the Develop- ment Company was subject to the lien of plaintiff's mortgage. From the above it is apparent that the crucial question for decision is whether appellant Krupp, who, as the trial court found, in good faith and for value purchased an assignment of the Wenzel contract and a deed of the premises from its codefendant, the Development Company, without any actual knowledge of the plaintiff's mortgage, was nevertheless affected with constructive notice thereof sO' as to confer upon plaintiff a lien under his mortgage superior and paramount to the rights of such defendant. In answering this question we must bear in mind the fact, as found by the trial court, that the contract for deed executed and delivered by the Development Company to Wen- zel was not entitled to record, nor was the same disclosed in any way by the public records, and, as far as such records disclosed, Wenzel had no interest whatever in the property in controversy, but the same stood in the name of and was owned exclusively by the Development Company. It is no doubt true that Wenzel, by such executory contract of purchase which gave him possession, acquired an equitable interest in such property which he might sell or mortgage (Cummings v. Dun- can, 22 N. D. 534, 134 N. W. 712, Ann. Cas. 1914B, 976); and it is likewise no doubt true that his possession under the contract operated to convey notice to the world of his equities thereunder. But Wen- zel's interest under such contract was cognizable merely in equity, not in law. Miller v. Shelburn, 15 N. D. 182, 107 N. W. 51 ; Cummings v. Duncan, supra. His possession under such executory contract op- erated, no doubt, as notice to the world of his equities thereunder. It is, however, quite a different proposition to say that such posses- 840 DERIVATIVE TITLES (Part 2 sion constituted notice of the rights of persons claiming to hold as as- signees, vendees, or mortgagees of such equitable interest. Was appellant Krupp, under the facts, charged with constructive notice of plaintiff's mortgage? As stated by appellant's counsel this suggests two main inquiries. First, was the mortgage a conveyance within the meaning of the re- cording laws? Second, was it a conveyance in the chain of title? Plaintiff's right to recover, depends upon an affirmative answer to both of these questions. Counsel for appellant assert, with apparent confidence in the correctness of tlieir position, that both of such ques- tions must receive a negative answer, and they have presented a very able and ingenious argument in support of their contention. They ap- parently concede that under the general statutory rule in other states, either in express terms or by judicial construction, the record of an instrument conveying or encumbering a mere equitable estate or in- terest, as well as a legal estate or interest, operates to give constructive notice thereof, but they seek to differentiate our recording act from tlie statutes of other states, and contend for a construction eliminating from its operation mere equitable interests or liens. As suggested by them, it is undoubtedly true that the doctrine of constructive notice by recording instruments is of purely statutory creation, and that the recording of an instrument not within the statute does not impart con- structive notice thereof. This, of course, is elementary. 2 Devlin, Deeds, § 646, and cases cited. The recording acts of this state are embraced in sections 5038, 5039, and 5042, Rev. Codes 1905. Section 5038 reads in part as follows : "Every conveyance by deed, mortgage, or otherwise, of real estate within this state, shall be re- corded in the office of the register of deeds of the county where such real estate is situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any part or portion thereof, whose conveyance, whether in the form of a warranty deed, or deed of bargain and sale, deed of quitclaim and release, of the form in common use, or otherwise, is first duly recorded." Section 5039 defines the term "conveyance" as used in the last sec- tion as embracing "every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encum- bered, or by which the title to any real property may be affected, ex- cept wills and powers of attorney." Section 5042 provides: "An unrecorded instrument is valid as be- tween the parties thereto and those who have notice thereof; but knowledge of the record of an instrument out of the chain of title does not constitute such notice." The first clause of the section last quoted constituted the entire sec- tion as originally enacted, but in 1899 the legislature, by chapter 167, Laws of 1899, added thereto the latter clause, which, no doubt, as Ch. 8) PRIORITIES 841 counsel state, was for the purpose of changing the rule announced by this court in Doran v. Dazey, 5 N. D. 167, 64 N. W. 1023, 57 Am. St. Rep. 550. In that case it was held that actual knowledge of the record of an instrument out pf the chain of title was constructive notice of the original instrument and of the rights of the parties under it, and by such amendment the rule was changed so that now mere knowledge of the record of an instrument out of the chain of title does not con- stitute notice thereof. Our first inquiry, therefore, is whether plaintiff's mortgage, which covered Wenzel's equitable interest under his executory contract to purchase the real property in question, is such an instrument as was entitled to be recorded. In other words, was such mortgage a "con- veyance" within the meaning of the recording laws aforesaid.^" * * * Do our recording laws include such a mortgage? We are entirely satisfied that this question must also receive an affirmative answer. The contention of appellant's counsel to the contrary is, we think, based upon an unwarranted and erroneous construction of our stat- ute. We are unable to distinguish our law from the Michigan law and the corresponding statutes in most states. The fact that the Mich- igan statute in defining the word "conveyance," as used in its record- ing law, in addition to the language in section 5039 of our Code adds the words "in law or equity," does not make their statute broader than ours. We think the statute would convey the same meaning without these words, and they were evidently inserted through a super- abundance of precaution. Furthermore, the language in the first por- tion of the section, "the term conveyance * * * shall be construed to embrace every instrument * * * ^^y -which any estate or in- terest in real property is created, aliened, "mortgaged, or assigned," clearly was intended to cover a .mortgage of an equitable title. In support of our views see Clark v. Lyster, 155 Fed. 513, 84 C. C. A. 27; 27 Cyc. 1157, and cases cited in note 28 on page 1158; also 1 Jones, Mortg. § 476. Having reached the conclusion that plaintiff's mortgage was enti- tled to record under our recording acts aforesaid, it only remains for us to determine whether the record thereof imparted constructive no- tice to defendant Krupp at the time he purchased an assignment of Wenzel's contract and procured the deed from Wenzel's grantor, the Dakota Development Company. In considering this question it is im- portant to bear in mind the fact that Krupp knew that Wenzel was in possession of the premises, asserting equitable ownership under the contract of purchase, and that he expressly recognized Wenzel's con- tract rights by purchasing from him an assignment thereof. In the light of these facts, can Krupp successfully urge that Wen- zel's mortgage to plaintiff was out of the chain of title, and hence, under section 5042, Rev. Codes, the record of such mortgage did not 10 The court concluded it was. 842 DERIVATIVE TITLES (Part 2 constitute notice thereof to him? We think not. The basic fallacy in appellant's argument, as we now view it, consists in the unwarranted assumption that such mortgage, as to him, was out of the chain of ti- tle. The reverse is true. He dealt with Wenzel, and therefore was bound in law to know, and in fact did know, 'that he was the equita- ble owner of the premises, and that his equitable title came from the Dakota Development Company through such contract. He was also bound in law to know, therefore, that Wenzel had a mortgagable in- terest in the premises, and that he might have sold, assigned, or mort- gaged such interest,. and the conveyance in either form would have been entitled to record. As to Krupp, therefore, the chain of title did not stop with the Development Company, but the last link in such chain was in Wenzel. He was therefore charged with constructive notice of plaintiff's mortgage, and bought subject thereto. It would have been entirely different had he dealt alone with the Development Company in ignorance of Wenzel's rights. In such event section 5042, supra, would have afforded him protection, but under the facts it can have no application. As said in 1 Jones on Mortgages, § 476: "The registry of a con- veyance of an equitable title is notice to a subsequent purchaser of the same interest or title from the same grantor. * * * Xhe record of a mortgage or other conveyance which is entitled to be recorded operates as constructive notice to subsequent purchasers claiming under the same grantor, or through one who is the common source oi title"— citing Edwards v. McKernan, 55 Mich. 520, 526, 22 N. W. 20. See also Jones v. Lapham, 15 Kan. 540, wherein Judge Brewer, while on the supreme bench of Kansas, in speaking to the point, said : "As to Maggie Murray, it appears that she had knowledge of the equitable interest, but not of the mortgage. Hull, however, was in possession of the lots, and had made valuable improvements on them. These im- provements she bought. Now, section 20 of the conveyance act (Gen. St. § 187) provides that 'every such instrument in writing (and this, by prior description, includes mortgages, and mortgages upon equitable interest) shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof ; and all subsequent purchasers and mortgagees shall be deemed to pur- chase with notice.' While this general provision, as respects notice, may be limited, so far as relates to conveyances or mortgages of eq- uitable interests, by the condition of the legal title, and the knowl- edge which the holders thereof have of the existence of the equity, as indicated in Kirkwood v. Koester, 11 Kan. 471, yet, aside from tliat limitation, it js of controlling force. Whoever buys a legal estate, hav- ing knowledge of an outstanding equitable interest, is chargeable witli notice of any record of conveyance or encumbrance thereof. Who- ever buys an equitable interest in land is also chargeable with like notice. In fact, knowledge of an equitable interest carries with it no- tice of the condition of such interest as is apparent from the public Ch. 8) PRIORITIES 843 records." We understand that the rule thus stated by Judge Brewer is generally recognized and well established, and we do not think that such rule is changed in this state by chapter 167, Laws of 1899, here- tofore referred to. * * * The District Court will modify its judgment accordingly, and as thus modified the judgment is affirmed. No costs shall be taxed to either party on the appeal. LOSEY V. SIMPSON. (Court of Chancery of New Jersey, 1856. 11 N. J. Eq. 246.) The Chancellor. The bill is filed upon a mortgage, given by Fer- dinand G. Simpson to Pamela Adams, and by her assigned to the com- plainants. The controversy is in reference to the priority of this mort- gage, and a mortgage given by Calvin A. Kanouse to Noah Estell, now held by the defendant, Mary Estell, as the executrix of the last will of Noah Estell, deceased. Stephen Adams, being indebted to Noah Estell in the sum of twelve hundred dollars for money lent, had given a mortgage to secure the same on several tracts of land, embracing the land which is covered by the mortgages in dispute. By an arrangement between Adams, Estell and Kanouse, Adams conveyed to Kanouse the portion of the mortgaged premises embraced in the disputed mortgages. The money received by the mortgagee was reduced from $1600 to $1310; and to se- cure this latter sum Kanouse executed a mortgage to Estell, embracing the land conveyed in the deed from Adams. Estell then canceled his $1600 mortgage, or delivered it up to Adams for that purpose. The deed from Adams to Kanouse was dated the 2d of August, 1847. The mortgage bears the same date. Both were acknowledged on the 12th of August, 1847. The mortgage was recorded on the 2d day of Septem- ber of the same year. The deed has never been recorded. It is alleged that it was, some time after its delivery, destroyed by Kanouse. Ka- nouse entered into the possession of the premises under his deed, and continued in possession until after the execution of the mortgage under which the complainants claim their priority. The complainants had a claim against Pamela Adams and Calvin A, Kanouse for debt, and were prosecuting it at law. Kanouse offered to compromise this claim. He stated to the complainants, through his attorney, that Pamela Adams owned certain premises, which Stephen Adams held in his name in trust for her, and that the premises were sold to one Ferdinand G. Simpson, who was to give to Pamela Adams a mortgage of sixteen hundred dollars for the purchase money. Ka- nouse offered this mortgage to the complainants, if they would ad- vance, in cash, the balance of the mortgage money, after deducting their claim of $797.98. The proposition was acceded to; and on the 6th of December, 1849, Stephen Adams, at the procurement of 844 DERIVATIVE TITLES (Part 2 Kanouse, executed a deed to Simpson for the same premises which he, Adams, had, as before stated, conveyed to Kanouse, and Kanouse had mortgaged to Estell. Simpson executed a mortgage to Pamela Adams to secure the purchase money of $1600, and she assigned the mortgage to the complainants, who, in consideration of the assign- ment, receipted their claim of $797.98, and for the balance gave their promissory notes, at a short date, which were paid at maturity. The deed to Simpson and the mortgage from Simpson to Pamela Adams were duly recorded. The deed from Stephen Adams to Kanouse, through which Mary Estell, who holds the mortgage from Kanouse to Noah Estell, claims title, has never been recorded. Both parties claim under Stephen Adams. The complainants' mort- gage is subsequent, in date and execution, to that of the defendant, Mary Estell ; but the complainants claim priority, on the ground that, at the time their mortgage was executed, the deed from Adams to Kanouse was not recorded ; and the title on the record being in Stephen Adams, they insist that the recording of the Estell mortgage afforded no notice of its existence. On behalf of Mary Estell, it is insisted that the mortgage she holds is protected by the very language of the statute ; that the statute de- clares mortgage void and of no effect against a subsequent bona fide purchaser or mortgagee for a valuable consideration, unless such mort- gage shall be recorded at or before the time of recording the said mort- gage or conveyance to such subsequent purchaser or mortgagee, and that, in point of fact, the Estell mortgage was recorded before the sub- sequent mortgage held by the complainants. But, by the very language of the statute, the deed from Adams to Kanouse is void and of no effect against the subsequent deed from Adams to Simpson, because it was not recorded at or before the time of recording the subsequent deed to Simpson. The defendant Mary Estell, then, claims under a grantor whose deed is void, and who, at the time of the conveyance, had no title against the grantor under whom the complainants hold. Now it could be of no advantage to Simpson that his recorded deed should be valid against the unregistered deed of Kanouse, if a gran- tee under the latter could claim a title superior to that of Simpson's or of his grantee. The whole object of the registry acts is to protect subsequent purchasers and encumbrancers against previous conveyances which are not recorded, and to deprive the holder of the previous unregistered conveyance, &c., of the right, which his priority in execution would have given him at the common law. But if the construction contend- ed for be adopted, this object is totally defeated; the registry will afford no protection to an innocent purchaser. When one link in the chain of title is wanting, there is no clue to guide the purchaser in his search to the next succeeding link by which the chain is continued. The title upon the record is the purchaser's protection, and when he has traced the title down to an individual, out of whom the record does Ch. 8) PRIORITIES 845 not carry it, the registry acts make that title the purchaser's protection. The registry of a deed is notice only to those who claim through or under the grantor by whom the deed was executed. Raynor v. Wilson, 6 Hill (N. Y.) 473; Stuyvesant v. Hall, 2 Barb. Ch. (N. Y.) 151; Murray v. Ballou, 1 Johns. Ch. (N. Y.) 556; Keller v. Nutz, 5 Serg. & R. (Pa.) 446; Lightner v. Mooney, 10 Watts (Pa.) 412; Bates v. Norcross, 14 Pick. (Mass.) 224; Tilton v. Hunter, 24 Me. 29; Crock- ett V. Maguire, 10 Mo. 34 ; Leiby v. Wolf, 10 Ohio, 83. Nor will a purchaser be bound to take notice of the record of a deed executed by a prior grantee whose own deed has not been recorded. Embury v. Con- ner, 2 Sandf . 98 ; Roberts v. Borune, 23 Me. 165, 39 Am. Dec. 614. And where the deed of a vendor is not recorded, the record of a mort- gage given by the vendee for the purchase money will not be notice to a subsequent purchaser. Veazie v. Parker,. 23 Me. 170; Pierce v. Taylor, 23 Me. 246. For in any such case the purchaser is without a clue to guide him in searching the record. 2 A. L. C. in Eq. 129. The mortgage to Estell is void against the complainants' mortgage, if Simpson, under whom the complainants hold, was a bona fide pur- chaser for a valuable consideration without notice of the Estell mort- gage. * * * 11 RANKIN V. MILLER. (Supreme Court of Iowa, 1876. 43 Towa, 11.) Action in chancery to establish and quiet in plaintiff the title to the undivided eleven-eighteenths of two hundred and eighty acres of land in Black Hawk county. The relief was granted as to one hundred and sixty acres of the land, and denied as to the remainder. Both par- ties appeal. The facts of the case are- stated in the opinion. Beck, J. The admitted or established facts, as we find them in this case, are as follows : I. Plaintiff's title is based upon the following conveyances and facts : 1. November 24, 1853, Benjamin H. Towner entered, at the United States land office at Dubuque, all the lands in controversy, which are all in section 13, township 88, range 13 west, and received a certificate 11 Tbe balance of the opinion is omitted. The court concluded that Simpson was a bona fide purchaser for value. Van Di^^ere v. Mitchell, 45 S. C. 127, 22 S. E. 759 (1895), contra. Eliza K., the owner, conveyed to her brother, F. K., who mortgaged the premises to P. P. recorded. R., after examining the records and satisfjung himself that Eliza had title, took a deed from her, paying value therefor. Be- cause F. K. had been acting as his sister's agent, E. procured a quitclaim deed covering the same premises from him. The day after the delivery of the two deeds to R., the deed from Eliza to F. K. was placed on record. In an action by P. to foreclose his mortgage, R. claimed protection as a bona fide purchaser for value without notice. AVas he entitled to such protection? A. conveys to B., who at once gives back a purchase money mortgage. The mortgage is recorded, but the deed from A, to B. is not. A. later conveys to X., a bona fide purchaser for value \^ath no knowledge of the deed to B. Does he have constructive notice? See Veazie v. Parker, 23 Me. 170 (1843) ; Hart v. Gardner, 81 Miss. 650, 33 South. 442, 497 (1902). 846 DERIVATIVE TITLES (Part 2 of entry, issued by the proper officer in the usual form. On the 18th of October, 1858, a patent was issued to him for the lands. 2. August 13, 1854, Towner sold and conveyed the lands to Daniel J. and Armstrong Rankin. The deed is lost, but was filed and recorded in Black Hawk county. The name Ambrose appears in the record in- stead of Armstrong, the christian name of one of the grantees. This is alleged to be a mistake, either in the deed or record thereof, and it is averred that the conveyance was intended to be to Armstrong Rankin, who was intended to be described therein as one of the grantees. 3. Armstrong Rankin died February 1st, 1855, leaving plaintiff as his only heir. His widow, Nancy M., rnarried Cyrus Hays in 1858. 4. Daniel J. Rankin re-conveyed his undivided interest in the lands to Towner, who, in July 28, 1861, sold and conveyed the undivided one-half thereof then held by him to plaintiff's mother, Nancy M. Hays. 5. In 1863 Nancy M. Hays died, leaving children by her second hus- band, Cyrus Hays, who subsequently married a second wife, Sarah, and died February 5th, 1868, leaving one child, the fruit of the last marriage. Sarah Hays died in 1868. Plaintiff, as heir of his father and mother, claims title to eleven-eighteenths of the land in contro- versy. Alleged defects and objections to deeds, under which plaintiff's ancestors acquired title to the lands, will be hereafter stated when they come up for consideration in this opinion. n. The defendants' title rests upon the following conveyances : 1. October 13, 1853, Abraham Turner, who is a defendant in this action, entered one hundred and twenty acres of land in section 13, township 88, north range 12 west, at the United States land office at Dubuque, and received the usual certificate of entry, which is number 15,700. 2. On the 28th day of February, 1854, which it will be remarked was subsequent, in point of time, to the entry of the land under which plaintiff claims, the register of the Dubuque land office, upon application of Turner, changed the duplicate certificate of entry. No. 15,700, re- turned in his office, which had been issued upon Turner's entry of the land in section 13, township 88, north range 12 west, so that it read "north range 13 west," being the same description as that of part of the lands before entered by the grantor of plaintiff's ancestor. 3. A patent was issued to Turner for one hundred and twenty acres of land in range 13, June 15, 1854. 4. In 1868 a patent was issued to Turner for the land in range 12, and he afterwards sold and conveyed it to E. K. Ware and D. J. Coleman. 5. The defendants claim the land in section 13, township 88, north lange 13 west, which is covered by Turner's patent, under that in- strument and conveyances by Turner and his grantees. Ch. 8) PRIORITIES 847 6. They claim title to the other lands in controversy under a sale and deed by the guardian of plaintiff, made in 1865. 7. For a part of the same land they also set up a tax title based upon a sale of the land by the county treasurer, for 1862, for the delinquent taxes of 1860, and a treasurer's deed thereon, dated May 14, 1864. The remainder of tliese lands are covered by a tax deed recorded in 1865, which is also set up by defendants. III. It is necessary to consider separately the conflicting claims and titles set up by the respective parties to the land in controversy. The first point of inquiry involves the validity of the conflicting patents covering a part of the land. 1. The validity of Towner's entry cannot be questioned. At that time the full and perfect title to the land, both legal and equitable, was in the government. There had been no sale or transfer of any in- terest in it which defeated the right of the government to dispose of it, in the manner all public lands are disposed of as provided by law. If we admit that Turner's first entry of lands was made through mis- take and the subsequent alteration of his duplicate certificate was without fraud, Towner's entry is not defeated by these considera- tions. Turner did not enter the land in range thirteen, and the cer- tificate issued to him did not cover it. There was, therefore, no sale of that land to him by the government. The land was then sold to Towner and a proper certificate issued to him. Surely, it cannot be claimed that the register of the land office, simply upon the application of Turner, without proof of the mistake which the evidence shows was not made, had authority to change the entry and alter Turner's certificate so as to defeat Towner's prior entry. The register was clothed with no au- thority to change the entry, and in no case can such a thing be done by any officer of the government where the land to be covered by the change has been before sold. U. S. Rev. St. §§ 2369 (U. S. Comp. St. 1913, § 4777), 2372. The government having sold the land to Towner, no other disposition thereof can be made. Arnold v. Grimes, 2 Iowa, 1 ; Cavender v. Smith, 3 G. Greene, 349, 56 Am. Dec. 541. 2. "The patent for lands belonging to the United States, when issued to a party vests in him the perfect legal title, which relates back to the date of entry of the land. The entry of the land and the issuing of the certificate of location transferred to him at the time all the prop- erty held by the government in the land, and conferred upon him all 'the equity' thereto which is an absolute and unconditional right to the land." Waters v. Bush, 42 Iowa, 255 ; Heirs of Klein v. Argenbright, 26 Iowa, 493; Cavender v. Heirs of Smith, 5 Iowa, 157. 3. The patent to Turner, having been issued contrary to law, for land which had been before sold by the government, is void, and the pat- entee acquired no rights under it. Stoddard et al. v. Chambers, 2 How. 284, 11 L. Ed. 269; Cunningham v. Ashley et al., 14 How. 377, 14 L. Ed. 462 ; Wright v. Rutgers, 14 Mo. 585 ;• Boring v. Lemmon, 848 DERIVATIVE TITLES (Part 2 5 Har. & J. (Md.) 223; Perry v. O'Hanlon, 11 Mo. 585, 49 Am. Dec. 100; State v. Delesdinier, 7 Tex. 76; Todd v. Fisher, 26 Tex. 239. IV. The conchision is reached that Turner's patent conferred no right whatever in the land which he could convey to another. We do not understand that counsel deny the correctness of this conclusion, but seek to avoid its consequences on the ground that defendants are innocent purchasers without notice of plaintiff's title. This position is based upon the fact that Towner's deed to plaintiff's ancestor, ex- ecuted in 1854, was acknowledged before a justice of the peace of the .state of Illinois and the certificate of acknowledgment, in other respects, does not comply with the requirements of the law, especially in failing to show that the grantor acknowledged the deed to be his voluntary act. At that date, the acknowledgment of deeds for lands in this state could not be made before justices of the peace in other states. The deed was recorded October 1, 1855. Defendants insist that, as this deed was insufficiently acknowledged, though recorded, it does not impart notice to them of plaintiff"'s title. Code 1873, § 1942. Let us consider for a moment the position of the parties as claim- ants of the land in dispute. They claim under distinct chains of titles, having, however, a common origin in the government. The government made two grants of the land ; on one, plaintiff's title rests, the other is the foundation of defendants' title. The deed from the purchaser to plaintiff's ancestor, under whom plaintiff claims, is defectively ac- knowledged and it is not, therefore, lawfully recorded. Now, no ques- tion of registry, or want of notice, can arise upon the assurances given by the gr vernment for the land. Arnold v. Grimes, 2 Iowa, 1 ; Heirs of Klein v. Argenbright, 26 Iowa, 493 ; David v. Rickabaugh, 32 Iowa, 540. Does the law protect defendants because they had no notice by the record of the deed from the grantee of the government to the plaintiff's ancestor? Code 1873, § 1941, the statute requiring the registry of deeds, is in the following language : "No instrument affecting real estate, is of any validity against subsequent purchasers for a valuable consideration, without notice, unless recorded in the office of the recorder of the coun- ty, etc." The statute protects subsequent purchasers and no others. The very language of the statute leads to the conclusion that there are such as claim under the chain of title of which the deeds affected by the provision are a part. It is intended to protect the purchaser whose deed is recorded, against another conveyance that is not record- ed, and contemplates the case of conflicting deeds conveying title and having a common source. No protection is intended against an inde- pendent title, distinct from that upon which the recorded deed is based. The conclusion is supported by the consideration that, in such cases, notice in fact by a record thereof could not be given. No point of commencement for an examination of the records would be sug- gested to the party seeking information therein. The indexes of the record, which under our statute are a part of the record and serve to Ch. 8) PRIORITIES 845 impart notice, would give no aid in such an examination. It is, there- fore, our conclusion that the term subsequent purchaser, occurring in the statute, is used to describe purchasers claiming under some common grantor. This position is supported by the following authorities : Long V. Dollarhide, 24 Cal. 218; Roe et al. v. Neal et al., Dud. (Ga.). 168 ; Fenno v. Sayre, 3 Ala. 458 ; Whittington v. Wright, 9 Ga. 23 ; Tilton V. Hunter, 24 Me. 29 ; Crockett et al. v. Maguire, 10 Mo. 34 ; Ely V. Wilcox, 20 Wis. 530, 91 Am. Dec. 436; Rodgers v. Burchard et al., 34 Tex. 441, 7 Am. Rep. 283; Losey et al. v. Simpson et al., 11 N. J. Eq. 246; Bates v. Norcross, 14 Pick. (Mass.) 224; Quirk v. Thomas et al., 6 Mich. 76; Murray v. Ballou, 1 Johns. Ch. (N. Y.) 566. If, then, the record of the deed would not impart notice provided for by law, defendants cannot claim any strength for their title be- cause it was not in fact recorded; they are not prejudiced thereby. It is a case where the principles of registry do not apply.^^ * * * YOUNGBLOOD v. VASTINE. (Supreme Court of Missouri, 1870. 46 Mo. 239, 2 Am. Rep. 509.) Bliss, J- Sarah G. Wright, deceased, by herself and her trustee, on the 20th day of July, 1859, executed to E. J. Xaupi, in trust, to se- cure the payment of a promissory note of same date for $3700, given to Joseph Tuley, then living, a deed of certain real estate, her separate property, situate on the corner of Pine and Eighth streets, in St. Louis, which deed was not put upon record until the 19th of October, 1866. The said Joseph Tuley and Sarah G. Wright died in 1860 and 1861, and on the first of October, 1865, D. Robert Barclay, as trustee for Mrs. Ann A. Macdonald, and with her funds, purchased said prop- erty of the heirs of said Sarah G. Wright, and received a warranty deed of the same, which was recorded April 28, 1866. It appears from the evidence that neither Barclay nor Mrs. Macdonald had any knowl- edge of the trust deed to Xaupi ; that the records were examined before the purchase to see if there were any encumbrances upon the property ; that a full consideration was paid for it ; that the estate of Mrs. Wright had been settled by the public administrator, and that all debts present- ed had been paid, but this note was not among them. 12 The remainder of the opinion relating to other matters is omitted. In nn action by the assignee of a mortgage to foreclose same, the mortgagor sought to set off certain claims held by him against the mortgagee, which elaimg had been acquired after the assignment of the mortgage to the complainant. The mortgagor had no knowledge of the assignment, but the assignment had been properly recorded prior to the acquisition of the claims. A statute of the state, adopting the prevalent equity nile, provided that, "in the case of an as- signment of a thing in action, the action of the assignee shall be without preju- dice to any set-off or other defense, existing at the time of or before notice of the assignment." Should the mortgagor be allowed his set-off? Aig.Pkop. — 54 850 DERIVATIVE TITLES (Part 2 This suit was brought by the administrator of Tuley to foreclose his trust deed, and the contest arises in consequence of the failure on the pan of Xaupi, to whom it was made, to place it upon record. Had the second deed been executed by Mrs. Wright while living, there would be no question that it would hold against the unrecorded deed. But in some of tlie reported cases upon the subject it is held that the same preference can not be given to tlie second deed if made by the heirs of the first grantor. I confess I am not struck with the force of the reasoning upon which the distinction is made, for it is based upon the idea that the second deed is inoperative because nothing descended to the heirs, and hence they had nothing to convey. If that be so, it was because nothing was left in the ancestor that could de- scend; that his whole estate was divested by the first deed. -If his whole estate was so divested, how could a second deed, if made by himself, be operative? Yet it is not disputed that such second deed would convey the estate, notwithstanding the first. Yet the distinction is made by some of our most respectable courts, and it is apparently recognized by this court. In Hill et al. v. Meeker, 24 Conn. 211, the majority of the court held that the unrecorded deed from the ancestor so divested him of his title that his son and heir "took nothing by inheritance that he could convey or mortgage to a bona fide purchaser who had no knowledge of the deeds." The case is a much harder one than the one at bar, and the decision is based upon "a clear distinction between a purchaser from him (the ancestor) and one from his heir, Arza. In relation to a purchase from Arza, the difficulty is that he never had any title." The same distinction was made in Hancock v. Beverly's Heirs, in 6 B. Mon. (Ky.) 531. The judge delivering the opinion acknowledges the question to be a doubtful and difficult one, and in reasoning upon the subject says : "It has always been held that a deed, though never recorded, is good between the parties, and as to all the world, except creditors and innocent purchasers for value. The grantor in such deed can pass no title to his subsequent donee or devisee, and the law will pass none to his heir, because there was none in him, after his convey- ance, to be passed, but in favor of a creditor or bona fide purchaser for value. Does tlie conveyance of the heir, or donee or devisee, who, as such, never had title, made to a purchaser for value and without notice, operate to divest the title conveyed by the unrecorded deed, and, bringing it in another line of conveyances, vest it in subsequent pur- chasers?" This question the court, on the authority of Ralls v. Gra- ham, 4 T. B. Mon. (Ky.) 120, answers in the negative. Our own court, in McCamant v. Patterson, 39 Mo. 110, 111, seems to recognize the same doctrine, though, from the peculiarity of the title to the New Madrid grants, the question in its general application could not have arisen in that case. Other authorities, however, equally respectable, have held that the heir of the grantor in an unrecorded deed can convey a good title to Ch. 8) PRIORITIES 851 an innocent purchaser f(5r value. The Supreme Court of Pennsyl- vania, in Powers v. McFerran, 2 Serg. & R. 44, in giving its opinion, remarks that "the purchaser for a valuable consideration, seeing no deed on record, had a right, under the sanction of the recording act, to take for granted that the whole estate had descended." The same question was raised in McCulloch v. Eudaly, 3 Yerg. (Tenn.) 346, and in sustaining a deed from the heir, the following language is used by the court: "But it is contended tliat this (the saving to suosequent pur- chasers) only applies to cases where the purchase should be made from the same vendor by whom the prior deed was executed. It is true the subsequent purchaser must hold under the same title ; but whether he holds under the ancestor or heir, it can make no difference. The estate is thrown upon the heii: with all the rights the ancestor enjoyed and subject to all encumbrances he had created on it." The subject has also been considered in the State of Illinois, in Kennedy v. Northup, 15 111. 148; and after reviewing the authorities, the title from the heir was sustained. "After much reflection," says the judge who delivered the opinion, "I am satisfied that this is the true and proper construction of the statute. It meets the object de- signed to be accomplished by the law, and is within the reason which gave rise to the enactment. It was the object of tlie Legislature to make patent the titles to real estate, that purchasers might know what titles they were acquiring. Where a deed is not recorded, the title is apparently still in the grantor, and the law authorizes purchasers who are ignorant of the conveyance to deal with him as the real owner. In case of his death the heir becomes the apparent owner of the legal title, and it is equally important and equally as just that the public may be allowed to deal with him as with tlie original grantor if liv- ing." There is no substantial difference between the statutes of tlie dif- ferent States whose decisions I have quoted and our own. Different language is used, but the same result is aimed at; some expressly de- claring unrecorded deeds to be void against subsequent purchasers, while ours negatively does the same thing by saying that no such in- ■ strument shall be valid except between the parties thereto, etc. The discrepancy in the authorities has doubtless arisen in part from the endeavor to reconcile the statute with the subtleties of the old law of tenures, which treats a title as a substantial entity, and almost ap- plies to it the powers of locomotion. The attempt involves the rea- soner in contradictions, for in one breath it is said that the title passes by the deed to the grantee and still so remains with the grantor, that in a contingency it may again pass from him to another grantee, but if the grantor dies it can not descend like all his other titles, but goes back to tlie original grantee, with whom it has always remained. It would be more rational to say that the law controls the manner in which rights of property are acquired, and that it will not favor any mode of acquirement that shall encourage fraud. Thus purchasers S52 DERIVATIVE TITLES (Part 2 are required to spread upon record the evidence of their ownership; and if others suffer from their neglect, the law will not recognize such ownership. Or, in using the language of the law of tenures, we might perhaps say tliat in a conveyance the absolute title rests with the gran- tor and his heirs in abeyance, to vest irrevocably only upon tlie record of the deed, and that it will vest in the first grantee in condition to receive the grant, who shall so place it upon record. The Circuit Court held that the defendant's deed from the heirs of Mrs. Wright conveyed the whole estate, whereupon the plaintiff* took a nonsuit, and his motion to set the same aside was overruled. In this the court committed no error, and the other judges concurring, the judgment will be affirmed.^' MORSE v. CURTIS. (Supreme Judicial Court of Massachusetts, 18S5. 140 Mass. 112, 2 N. E. 929, 54 Aju. Rep. 456.) Morton, C. J. This is a writ of entry. Both parties derive their title from one Hall. On August 8, 1872, Hall mortgaged tlie 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 de- mandant 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. Bigelow, 16 Mass. 406, 8 Am. Dec. 144. 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 Mete. 619, Chief Justice Shaw expresses his individual opinion against the sound- ness of these decisions; but in that case the judgment of the court was distinctly put upon another ground, and his remarks can only be considered in the light of dicta, and not as overruling the earlier ad- judications. Upon careful consideration, the reasons upon which the earlier cases were decided seem to us the more satisfactory, because they best fol- low the spirit of our registry laws and the practice of the profession 13 See Lyon v. Gleason, 40 Minn. 434, 42 N. W. 286 (1889) ; Wliittemore v. Bean, 6 N. II. 47 (1S32), where it was the devisee of the grantor in the unrecord- ed deed that made the later deed to the good faith purchaser. Suppose the grantor in the unrecorded deed himself makes a deed to one who takes either as a volunteer or with knowledge of the earlier deed, and tliat grantee in turn conveys to a good faith purchaser. What would be the position ■of the grantee in the unrecorded deedV Ch. 8) PRIORITIES 853 nnder 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 deed or deeds thereof be acknowledged and recorded in manner afore- said." St. 1783, c. Z7, § 4. Under this statute, the court, at an early period, held that the re- cording 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 received 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. Reading of Judge Trowbridge, 3 Mass. 575; Marshall V. Fisk, 6 Mass. 24, 4 Am. Dec. 76. 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 bona 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. St. c. 59, § 28 ; Gen. St. c. 89, § 3 ; Pub. St. c. 120, § 4. It is to be ob- served that, in each of these revisions, it is provided that an unrecorded prior deed is not valid against any persons except the grantor, his heirs and devisees,* "and persons having actual notice" of it. The reasons 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, un- less he had actual notice of the first deed. Now, in tlie 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 re- corded before such assignment. It was held in Connecticut v. B radish, ubi 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 in- 854 DERIVATIVE TITLES (Part 2 dexes prepared for public inspection and examination. Pub. St. c. 24, §,§ 14—26. There are indexes of grantors and grantees, so that, in searching a title, the examiner is obHged to run down the list of gran- tors, or run backward through the Hst of grantees. If he can start with an owner who is known to have a good title, as, in the case at bar, he could start with Hall, he is obliged to run through the index of grantors until he finds a conveyance by the owner of the land in ques- tion. 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 apy time, through perhaps a long chain of title, was 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 inconveniences of such a construction would be much greater than would be the incon- venience of requiring a person, who has neglected to record his prior deed for a time, to record it, and to bring a bill in equity to set aside the subsequent deed, if it was 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 reg- istry, 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 un- recorded 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. WOODS V. GARNETT. (Supreme Court of Mississippi, 1894. 72 Miss. 78, 16 South. 390.) Bill to cancel defendant's claim to certain land and to recover pos- session. Decree for defendants. Complainant appeals. The opinion sufficiently states the facts. Cooper, C. J., delivered the opinion of the court. The parties to this suit all claim title from one Riley, who, in 1891, was the owner of the land in controversy. On the ninth day of Novem- ber, A. D. 1891, Riley executed a deed of trust, whereby he conveyed the land to one M. H. Trantham, as trustee, to secure the payment of a Ch. 8) PRIORITIES 855 promissory note of that date for $3,500, payable to the order of C. H. Pond. This deed contained the usual power of sale if default should be made in the payment of the secured debt at maturity, and also pro- vided that Pond, or the assignee of the note, might at pleasure sub- stitute any other person in lieu of the trustee, Trantham. This deed was acknowledged before Trantham, the trustee, who was a justice of the peace of the county. The certificate stated only that the grantor acknowledged that he had "signed" the deed, omitting the words "and delivered," as required by law. This deed was filed for record in the proper ofiice on the twelfth day of November. (Dn May 6, 1892, Riley executed a. deed of trust to one Oliver, as trustee, to secure the payment of a debt to W. G. Cocke & Co. of %Z97.22. This deed also contained a power of sale if the debt secured should not be paid at maturity. Before accepting this security, W. D. Lester, a member of the firm of Cocke & Co., examined the records, and there saw and read the prior deed, but was of opinion that, by reason of the defective acknowledgment, and because it had been taken by the trustee therein, it was not entitled to registration, and, being of that opinion, decided to accept the deed to secure his firm. Some time prior to October, 1892, Pond assigned the note executed by Riley payable to him to the complainant, Chas. R. Woods. About this time it was discovered that the deed of trust by which this note had been secured had not been so acknowledged as to entitle to regis- tration, and thereupon Woods exhibited his bill in equity to enjoin Riley from disposing of the lands to his injury, and an injunction was allowed.- The attorney of Woods, being of opinion that a re-execution and acknowledgment of the deed by Riley, and another registration thereof, would serve the same purpose as the injunction, sent the clerk of the chancery court to see Riley and get a re-acknowledgment of the deed, which he did on October 7, 1892, when the deed was on that day again filed for record and recorded on the twenty-fourth. On November 16, 1892, Riley and his wife conveyed the land to the appellee, Mrs. L. A. Garnett. On November 19, 1892, the land- was sold under each of the two deeds of trust, the sales being at different places. At the sale under the deed of trust first made, but junior in record (the Pond deed), the appellant became the purchaser. At the sale under the deed junior in date, but the first recorded, the appellee, Mrs. D. L. Garnett, purchased. The appellant exhibited his bill in this cause to cancel the titles of the defendants, Mrs. D. L. Garnett and Mrs. L. A. Garnett, as clouds upon his own, and to recover possession of the land, they having been let into possession by Riley. Mrs. D, L. Garnett defends the suit upon the ground that she was a bona fide purchaser, without notice of the deed of trust under which complainant claims title. Mrs. L. A. Garnett defends only as to 160 acres of the land, which, she says, was the homestead of Riley at the time he executed the deed of trust to secure the note to Pond, which deed, she contends, was void as to the homestead, because Mrs. Riley 856 DERIVATIVE TITLES (Part 2 did not join her husband in the conveyance, as is required by law for the sale or incumbrance of the homestead. In the controversy between the appellant and Mrs. D. L. Garnett, the question involved is one of law, the facts being undisputed. In the controversy with Mrs. L. A. Garnett, the question is purely of fact, the parties not differing as to the law, which is plain, and not susceptible of controversy. 1. Were Cocke & Co. bona fide incumbrancers of the land, without notice of the Pond mortgage ? It has been generally held by the Amer- ican courts, though with some exceptions, that, notwithstanding the registry acts, one who has notice of such facts in reference to an un- recorded conveyance, as devolves on him, as an honest man, the duty of making further inquiry, is to be held as having such knowledge as such inquiry, honestly made, would have disclosed. In those states in which this rule does not apply, it will be found that the registry acts require actual knowledge of the unrecorded conveyance. One who sees upon the record, and reads an instrument improperly recorded, because not acknowledged or proved as required by law, cannot claim to be a bona fide purchaser of the property therein described. He knows that what he sees is the copy of an instrument purporting to have been made by the grantor to the grantee. Good faith requires that he shall prosecute further inquiry, and, if he negligently or wil- fully neglects so to do, he is to be held to have known all the facts to which that inquiry would have led. The notice to Lester by reading the improperly recorded mortgage, was notice to his firm of the ex- istence of that conveyance, and Cocke & Co. were not bona fide pur- chasers of the property.^* 2. Where a conveyance is made to one who fails to record his deed until after another has received and recorded a conveyance from the same grantor, but with notice of the first deed, what are the rights of the first grantee against a purchaser from the second, where such purchaser, having no actual knowledge of the facts, buys after the record of the prior deed? This question is determinable by a construc- tion of our registry act, for, at the common law, a second purchaser of the fee could take nothing, since, by the first conveyance, the gran- tor would have divested himself of all his estate, and would have noth- ing to convey. Basset v. Nosworthy, 2 Ldg. Cas. in Eq. 110, and note; Coke on Littleton, 390d. By our registry act it is declared that the instruments thereby re- quired to be recorded "shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and lodged with the clerk of the chancery court of the county, to be recorded in the same manner that other con- veyances are required by this act to be acknowledged or proved and re- corded ; but the same, as between the parties and their heirs, and as to all subsequent purchasers with notice, or without valuable considera- 1* But see Nordman v. Kau, infra, p. 909. Ch. 8) PRIORITIES 857 tion, shall, nevertheless, be valid and binding." Code 1880, § 1212; Code 1892, § 2457. "Every conveyance, covenant, agreement, bond, mortgage, and deed of trust shall take effect, as to all subsequent pur- chasers for a valuable consideration without notice, and as to all cred- itors, only from the time when delivered to the clerk to be recorded." Code 1880, § 1213 ; Code 1892, § 2458. In Massachusetts and Vermont it is held that a purchaser is not bound to examine the record, after the date of a recorded conveyance, to discover whether the grantor therein has made another conveyance prior in time but junior in record, but may safely purchase from the grantee in the first recorded convey- ance, if he, the purchaser, has no actual notice of the prior deed, and no notice of facts which makes it his duty to prosecute inquiry. Connecti- cut V. Bradish, 14 Mass. 296 ; Trull v. Bigelow, 16 Mass. 406, 8 Am. Dec. 144; Morse v. Curtis,^ 140 Mass. 112, 2 N. E. 929, 54 Am. Rep. 456 : Day v. Clark, 25 Vt. 397. And this is said to be the more rea- sonable rule by the annotators of the leading cases in equity (Le Neve V. Le Neve, 2 Ldg. Cas. 180), and by Mr. Jones (1 Jones on Mortg. § 574.) The decided weight of authority is, however, to the contrary, though Mr. Jones cites none of them as supporting the contrary view, except the New York decisions. Among others, the following cases may be noted : Van Rensselaer v. Clark, 17 Wend. (N. Y.) 25, 31 Am. Dec. 280; Westbrook v. Gleason, '79 N. Y. 23; Clark v. Mackin, 30 Hun (N. Y.) 411; Mahoney v. Middleton, 41 Cal. 41; English v. Wa- ples, 13 Iowa, 57 ; Fallass v. Pierce, 30 Wis. 443 ; Erwin v. Lewis, 32 Wis. 276; Van Aken v. Gleason, 34 Mich. 477; Bayles v. Young, 51 111. 127. The question has never been decided in this state, though in Harring- ton V. Allen, 48 Miss. 492, there is a dictum in which Judge Simrall, mistaking the facts of his case, seems to favor the Massachusetts rule. The decisions in Massachusetts and Vermont, while resulting in practi- cally the same end, proceed on irreconcilable and opposite principles. In Massachusetts it is held that the purchaser from the grantee in the deed junior in date, but senior in record, need not examine the records after the date of the registration of the conveyance to his grantor. Morse v. Curtis, 140 Mass. 112, 2 N. E. 929, 54 Am. Rep. 456. In Ver- mont it is held that he is bound by the constructive notice afforded by the registration of the first deed, that it is notice to him of the fact that a deed prior to that of his grantor had been made; but is not notice that his grantor had notice of the first deed ; and so the conveyance to the purchaser from the second grantee is preferred in Vermont, not because the purchaser is himself a purchaser without notice, for the registration of the prior deed is notice of its existence, nor because his grantor was a purchaser without notice, for that may or may not be true, but because the purchaser did not know that his grantor was not a bona fide purchaser, and thus, under the Vermont decision, one may secure protection as though he were a bona fide purchaser when neither he nor any one under and through whom he derives title was in fact 858 DERIVATIVE TITLES (Part 2 such purchaser. This rule has no recognition except in Vermont, so far as we have discovered. We think the Massachusetts decisions are erroneous, because they hold that one not bound by the registry law is protected by it. But for the registry law, where one has conveyed his legal title, he has nothing left to convey to another, and that other, with or without notice of the prior conveyance, would get nothing, for his grantor had nothing to convey. Now, the statute comes and provides that, though a convey- ance of the class named in the statute may be made, it shall as to cer- tain persons, viz., creditors and purchasers without notice, be valid only from a certain time, viz., the time when it is filed for record. In other words, the operation of the unrecorded conveyance is supended until it shall be recorded, as against creditors and purchasers without notice, and, when recorded, it does not operate by relation as against such persons from the day of its execution, but is effective only from and of the date of its delivery for record. But when filed for record it has full scope and effect against the world. One who buys after that event can find no protection in the statute, for its terms have been complied with by the holder of the adverse title. It is no answer to say that it is inconvenient to the purchaser to examine a long and voluminous rec- ord, made after the record of the title of his grantor. To this the suffi- cient reply is that, but for the registry acts, he would not have even the protection which such records afford, but would deal at his peril with his grantor, and secure only such title as he might assert. If that grantor Jiad good title because a purchaser for value without notice, that is a defense to his vendee ; but if such grantor was not such pur- chaser, then the validity of the title he conveys must depend upon the character of his vendee, and if such vendee is not a bona fide purchaser under the common law or the statute, we cannpt perceive from what source a principle can be deduced which will afford him protection. It seems clear to us that one who buys an estate cannot invoke the pro- tection of the registry act as against a deed recorded under such act at the time of his purchase.^' TEFFT V. MUNSON. (Court of Appeals of New York, 1S74. 57 N. Y. 97.) Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of defend- ants entered upon the decision of the court upon trial at Special Term. This was an action to restrain defendants, loan commissioners for Washington county, from foreclosing a mortgage executed to tliem by Martin B. Perkins and wife. 15 The balance of the opiuion, which discusses the position and rights of Mrs. L. A. (Jarnett, is omitted. See Fallass v. Pierce, 30 Wis. 443 (1872), a most interesting case. Ch. 8) PRIORITIES 859 On the 18th day of January, 1848, Gamaliel Perkins purchased of Cortland Hovvland certain lands in Washington county, which were conveyed to him by warranty deed recorded March 7, 1848, in the clerk's office in said county. Gamaliel Perkins, immediately after his purchase, let his son, Martin B. Perkins, into possession of the premises, who forged a deed of the land from his father to himself and placed it upon record in the clerk's office of said county, May 27, 1850. On the 1st day of October, 1850, Martin B. and his wife executed a mort- gage upon said land to the loan commissioners of said county, to secure the sum of $1,000 loaned to him. This mortgage contained covenants that Martin B. and his wife were lawfully seized of a good, sure, per- fect, absolute and indefeasible estate of inheritance in the premises, and that they were free and clear of and from all former and other gifts, grants, bargains, sales, liens, etc. ; and this mortgage was,' on the day of its date, duly recorded in the book kept by the loan commis- sioners, as required by law. On the 23d of January, 1860, a deed of said lands bearing date April 1, 1853, was recorded in the county clerk's office, which purported to be executed by Martin B. and wife to his father. On the 16th day of December, 1859, Gamaliel Perkins convey- ed said land to Martin B., by deed recorded January 14, 1860. Until this conveyance from his father Martin B. had no title to tlie land, al- though he remained in possession of the same from 1848. On the 31st day of January, 1867, Martin B., being still in possession of the lands, conveyed them to the plaintiff, who paid full value for the same with- out any actual notice of the mortgage to the loan commissioners. The deed to the plaintiff was recorded February 9, 1867. The court below decided that plaintiff was not entitled to tne relief sought and directed a dismissal of the complaint. Judgment was per- fected accordingly. Earl, C. The plaintiff claims that the mortgage to the loan com- missioners has no validity as against him, and that his deed has priority over it under the laws in reference to the registry of deeds and mort- gages. It is a principle of law, not now open to doubt, that, ordinarily, if one who has no title to lands, nevertheless makes a deed of convey- ance, with warranty, and afterward himself purchases and receives the title, the same will vest immediately in his grantee who holds his deed with warranty as against such grantor by estoppel. In such case the estoppel is held to bind the land, and to create an estate and interest in it. The grantor in such case, being at the same time the warrantor of the title which he has assumed the right to convey, will not, in a court of justice, be heard to set up a title in himself against his own prior grant ; he will not be heard to say that he had not the title at the date of the conveyance, or that it did not pass to his grantee in virtue of his deed. Wark v. Willard, 13 N. H. 389; Kimball v. Blaisdell, 5 N. H. 533, 22 Am. Dec. 476 ; Somes v. Skinner, 3 Pick. (Mass.) 52 ; Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 567, 49 Am. Dec. 189 ; Jackson v. Bull, 1 Johns. Cas. 81, 90; White v. Patten, 24 Pick. (Alass.) 8(50 DERIVATIVE TITLES (Part 2 324; Pike v. Galvin, 29 Me. 183. And the doctrine, as will be seen by these authorities, is equally well settled that the estoppel binds not only the parties, but all privies in estate, privies in blood and privies in law; and, in such case, the title is treated as having been previously vested in the grantor, and as having passed immediately upon the ex- ecution of his deed, by way of estoppel. In this case, Martin B. Per- kins conveyed the lands to the loan commissioners, by mortgage with warranty of title, and thereby became estopped from disputing that, at the date of the mortgage, he had the title and conveyed it; and this estoppel applied equally to the plaintiff to whom he made a subsequent conveyance, by deed, after he obtained the title from his father, and who thus claimed to be his privy in estate. The plaintiff was estopped from denying that his grantor, Martin B. Perkins, had the title to the land at the date of the mortgage, and he must, therefore, for every purpose as against tlie plaintiff, be treated as having the title to tlie land at that date. I, therefore, can see no difficulty in this case, growing out of the law as to the registry of conveyances. Martin B. Perkins, having title, made the mortgage which was duly recorded. He then conveyed to- his father and the deed was recorded. His father then conveyed to him and the deed was recorded. He then conveyed to the plaintiff and his deed was recorded. Thus the title and record of the mortgage were prior to the title and record of the deed to plaintiff, and the prior- ity claimed by plaintiff cannot be allowed. Assuming it to be the rule that the record of a conveyance made by one having no title, is, ordi- narily, ^ nullity, and constructive notice to no one ; the plaintiff cannot avail himself of this rule, as he is estopped from denying that the mortgagor had the title at the date of the mortgage. The case of White V. Patten, supra, is entirely analogous to this. In that case, the plaintiff derived his title from a mortgage, made to him by one Tliayer, containing covenants of seizin, warranty, etc., and recorded February 19, 1834. At the time of the execution of this mortgage the title was not in Thayer, but in one Perry, his father in law. Perry afterward, by deed, recorded August 2, 1834, conveyed the land in fee simple to Thayer, who conveyed the land by mortgage to the defendant, re- corded the same day. The counsel for the defendant used the same arguments in a great measure, which have been urged upon our atten- tion by the counsel for the plaintiff in this case, both as to the title and the registry of the mortgages; and, yet the court held in a very able opinion, that the plaintiff had tlie prior and better title. I am, therefore, of opinion that the judgment should be affirmed,, with costs. Reynolds, C. (dissenting.) When Martin B. Perkins gave the mort- gage to the loan commissioners he had possession, but no title to the mortgaged property. He had forged a deed of the premises from Ga- maliel Perkins to himself, and caused it to be put on record in the clerk's office of the county of Washington ; and by this device, imposed Ch. 8) PRIORITIES 861 upon the loan commissioners. The forged deed, was, of course, a nul- Hty, and could not in the eye of the law, have any effect by way of constructive notice or otherwise. It conveyed nothing, and was not a "conveyance" witliin the meaning of tlie recording acts, and did not affect the title to the land "in law or equity." It may be assumed, therefore, that the loan commissioners took the mortgage, knowing that Martin B, Perkins had no title, it being very clear that they acquired no legal rights by being imposed upon, against any one, save Martin B. Perkins. They got no interest in the land, either in law or equity. It is not in principle, unlike the case of a forged negotiable promissor}- note, where a bona fide holder for value can have no protection. It follows, therefore, that tlie entr>' of the mortgage in tlie books of the loan office at the time it was made, was of no legal consequence what- ever, except as against the mortgagor. It was no notice under the re- cording acts ; for it did not in the remotest degree affect the title to the land described in it. The mortgage contained a covenant of title, and it seems to be clear, that a title subsequently acquired by Martin B. Perkins, would, ordinarily, inure by estoppel, or otherwise, to the ben- efit, of the mortgagees if other rights have not intervened. The title to the mortgaged premises was in Gamaliel Perkins, from the 18th of January, 1848, to the 16th of December, 1859, when he conveyed it to Martin B. Perkins. By this conveyance, the mortgage given by Martin B. Perkins to the loan commissioners, in October, 1850, acquired legal vitality by way of estoppel, or in some other form, and if it had then been in any proper form recorded, constructive notice of its existence, as a valid lien upon the property, would have been given to all the world. Itis urged, that there was no necessity of making any further record of the mortgage, because the title in the mortgagees comes un- der the warranty by way of rebutter or estoppel. This will not do. It is sufficient, to say, that by virtue of the transactions under which the defendants look to enforce the lien of the mortgage, the title to the land is affected, and such a paper must be properly put on record to bind subsequent purchasers in good faith. If this be not so, it is impossible to see how a subsequent bona fide purchaser can have any protection, and when it is said to be impossible to record the estoppel which gave the mortgage vitality ; it may be an- swered; that, until the estoppel became operative, the mortgage was a nullity and the record of it no notice whatever. When, however, Mar- tin B. Perkins obtained the title to the premises, it became by some operation of law vaHd against him; but it was of no greater force or effect, than if he had on that day given it to the loan commissioners. It then, for the first time, affected the title to the land, and in order to bind subsequent purchasers, in good faith, must be duly recorded, and this was not done in any such way as to operate as constructive notice under the recording acts. It is not questioned, but that the plaintiff is to be protected as a bona fide purchaser, for value, unless the mortgage given in 1850, and then 862 DERIVATIVE TITLES (Part 2 entered in proper order in the books of tlie loan office, which, at the time, did not affect the title to the land in any way, was constructive notice of the lien. It is well settled, that a conveyance that is not duly recorded according to law, even when the actual title has passed, is not effectual as constructive notice. Frost v. Beekman, 1 Johns. Ch. 288; Lessee of Heister v. Fortner, 2 Bin. (Pa.) 40, 4 Am. Dec. 417. Much less can it be, that a conveyance which does not affect the title, can give any legal notice whatever. In the very best aspect of the de- fendant's case, the record of the mortgage was made out of the order required by law, and failed to give notice to anybody dealing with the title to the land. N. Y. Life Ins. Co. v. White, 17 N. Y. 469 ; Sawyer V. Adams, 8 Vt. 172, 30 Am. Dec. 459. In this view, the deed of the plaintiff was first recorded, and he is entitled to protection in his title. The judgment should be reversed, with costs, the mortgage declared no lien upon the land of the plaintiff, and the loan commissioners per- petually enjoined from attempting to enforce it. For affirmance. Earl, Gray and Johnson, CC. For reversal, Lott, Ch. C, and Re;ynolds, C. Judgment affirmed.^' WHEELER V. YOUNG. (Supreme Court of Errors of Connecticut, 1903. 76 Conn. 44, 55 Atl. 670.) Action to foreclose a mortgage and for other equitable relief, brought to the Superior Court in Fairfield County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the defendant Young, upon his cross-complaint, and appeal by. tlie plain- tiff. Hall, J. The plaintiff asks for a judgment of foreclosure under a mortgage which on the 13th of December, 1900, was assigned to him by Burr & Knapp, real estate and mortgage brokers of Bridgeport. Burr & Knapp as mortgagees received the mortgage from Charles B. and Edward H. Marsh, builders in Bridgeport, under the firm name of Marsh Brothers, on the 26th of October, 1900, to secure the payment of a loan of $3,500 made by them, on that day, to Marsh Brothers. The mortgage was recorded on said 26th of October at 3 :01 P. M. Burr & Knapp took no other security for said loan, and Marsh Brothers are insolvent. Both Burr & Knapp and the plaintiff took said mortgage in good faith, for value, in reliance upon the cer- tificate of an attorney that the premises were free and clear of all incumbrance, and that the legal title at the time said mortgage was given was in Marsh Brothers, and without knowledge of any prior conveyance by Marsh Brothers to the grantor of the defendant Young, or of any incumbrance upon said property prior to their mortgage 16 So. also, in Jarvis v. Aikens. supra, p. 801 : Bernardy v. Colonial & U. S. Mortg. Co., 17 S. D. 637, 98 N. W. 166, 106 Am. St. Rep. 791 (1904). Ch. 8) PRIORITIES 863 of October 26th. Marsh Brothers obtained title to the premises de- scribed in the mortgage by a quitclaim deed from Orange Merwin of Bridgeport, which was executed on the 1st of May, 1900, but not deliv- ered until the 26th of October, 1900, when it was recorded at 3 :05 P. M. On the same day Marsh Brothers paid to Merwin the purchase price for said property. Apparently there was no evidence presented at the trial, other than the facts herein stated, showing the precise time on the 26th of Octo- ber when either the deed from Merwin to Marsh Brothers, or the mortgage from Marsh Brothers to Burr & Knapp, was actually de- livered, or showing whether or not they were delivered at the same time and together given to the town clerk to be recorded. Orange Merwin acquired title from Marsh Brothers by deed executed and recorded September 8th, 1899. The defendant Harry S. Young, who is now in possession of the mortgaged premises, claims under a deed from Alfred Young dated January 2d, 1901. Alfred Young claim- ed title under a warrantee deed from Marsh Brothers dated April 30th, 1900, delivered and recorded on the 7th of July, 1900. Marsh Brothers had, on the 21st of April, 1900, agreed with said Alfred Young to sell him the lot described in the mortgage, and which was then owned by Merwin, and to erect a house thereon for $4,600, for which Alfred Young was to transfer to Marsh Brothers a cottage valued at $3,800, on which there was a mortgage of $2,800 and was to give a mortgage back, upon the premises purchased, for the re- mainder of the $4,600. In accordance with such agreement Alfred Young conveyed the cottage, and on April 30th, 1900, gave to Charles B. Marsh a mortgage upon the lot in question for $3,500, upon Marsh's promise not to use it until the house was completed, which mort- gage Marsh, on the same day, assigned to one IMary E. Beardsley, one of the defendants. Alfred Young caused no search to be made of the land records to ascertain the true state of the title to said land, before receiving said deed from Marsh Brothers, but relied upon the statement of Charles B. Marsh that they had acquired title to said land. Young was in the em- ploy of Marsh Brothers and did as Charles B. Marsh directed, in- tending no fraud toward any one. Marsh Brothers commenced the erection of a house upon said lot in May, 1900, which was apparently completed on the 26th of Oc- tober, 1900, and Merwin on said day gave his said deed to Marsh Broth- ers as aforesaid to enable them to carry out their said agreement with Alfred Young, which was known to Merwin, and on his business rec- ords Merwin treated the sale as a sale to Young. The plaintiff has purchased for $1,750 the mortgage so assigned by Marsh Brothers to Mary E. Beardsley. Upon these facts the defendant Young claims title to the premises in question, and by his cross-complaint asks that the mortgage of Oc- tober 26th, sought to be foreclosed, be declared void. 864 DERIVATIVE TITLES (Part 2 No question is made and none can be made, upon the facts before us, but that the mortgage deed to Burr & Knapp, and the Merwin deed to Marsh Brothers, both of which were deHvered on the 26th of October as above stated and were received for record by 3 :05 P. M. of the same day, were left for record within a reasonable time after they were delivered. The mere fact that the deed of Merwin to Alarsh Brothers appears to have been received for record four minutes later than the mortgage of the latter to Burr & Knapp, would not justify a conclusion, especially under the circumstances of this case, that Marsh Brothers had not received their deed from Merwin at the time of the delivery of the mortgage to Burr & Knapp, and that for that reason Burr & Knapp took nothing by their mortgage. Deeds re- corded within a reasonable time take effect according to the time they were actually delivered. Hartford Bldg. & Loan Ass'n v. Gold- reyer, 71 Conn. 95, 100, 41 Atl. 659; Goodsell v. Sullivan, 40 Conn. 83, 85 ; Beers v. Hawley, 2 Conn. 467, 469. The deed and mortgage were delivered on the same day. The mortgage recites the owner- ship by the mortgagor at the time of its delivery of the same prop- erty described in the deed. Looking at the record of the two deeds, the mortgage therefore indicates upon its face that it was delivered after or at the same time with the Merwin deed. The Merwin deed, con- fessedly, not having been recorded when the mortgage was delivered, Burr & Knapp would be presumed to have ascertained that it had been delivered before they made the loan of $3,500, and the informa- tion which they received to that effect does not appear to have been false. As between the parties to this case and in the absence of any evidence to the contrary — unless the slight difference in the time the two deeds were received for record can properly be regarded as conflict- ing evidence — the Merwin deed must, under the circumstances, be regarded as having been delivered either before, or at the same time with, the mortgage, and especially since no one appears to have been deceived to his injury by the fact that the Merwin deed, which bore an earlier date than the mortgage, appears to have been received for record four minutes later than the mortgage. But we do not understand that the trial court held that the Merwin deed was in fact delivered after the mortgage, or held that it did not sufficiently appear that the Merwin deed was delivered first, but decided that by the common-law doctrine of estoppel the title acquired by Marsh Brothers from Merwin on the 26th of October inured to the benefit of Alfred Young, the first purchaser from Marsh Brothers, the moment Marsh Brothers acquired their title, even assuming that the deed from Merwin was delivered before the mortgage, and decided that the title having thus vested in Young there remained nothing which Marsh Brothers could convey to Burr & Knapp by the mortgage, or which Burr & Knapp could assign to the plaintiff. * The rule referred to is, that where one without title has conveyed with covenants of warranty, and has afterwards acquired title, he Ch. S) PRIORITIES 865 is estopped from asserting his want of title at the time of making such first conveyance; and the contention of the defendant is, in effect, that under this rule, upon the facts before us, not only Marsh Brothers, but their mortgagees, Burr & Knapp, are estopped from denying that Marsh Brothers had title at the time of their conveyance to Young on July 7th, 1900. To carry this doctrine to the extent of giving priority to the title of one who from his negligent failure to examine the records has been induced to purchase land of a person having no title, over that of one who without negligence, in good faith and for value, and without knowledge of such prior deed, has purchased, after his grantor has ac- quired title from one having both the legal and record title, is op- posed to the principles of equity and to the spirit of our registry laws. Bingham v. Kirkland, 34 N. J. Eq. 229, 234; Calder v. Chapman, 52 Pa. 359, 91 Am. Dec. 163 ; Farmers' L. & T. Co. v. Maltby, 8 Paige (N. Y.) 361 ; Way v. Arnold, 18 Ga. 181 ; Salisbury Savings Society V. Cutting, 50 Conn. 113, and reporter's note, page 122. The doctrine of estoppel is one which, when properly applied, "con- cludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak." Van Rensselaer v. Kearney, 11 How. 297, 326, 13 L. Ed. 703. "As understood and applied in modern times, there is nothing harsh or unjust in the law of estoppels. It cannot be used but to subserve the cause of justice and right." Buckingham v. Han- na, 2 Ohio St. 551, 559. "To allow a title to pass by conveyance, ex- ecuted and recorded before it is acquired, may, therefore, be a sur- prise on subsequent purchasers, against which it is not in their power to guard, and is contrary to the equity which is the chief aim of the doctrine of estoppel as molded by the liberality of modern times." 2 Smith's Lead. Cases (7th Amer. Ed.) page 701, s. p. 634. It may be said that such estoppel by deed is not an equitable doctrine, but is a rule of the common law based upon the recitals or covenants of the deed. We reply, that as a rule of law, it has been so far modified by the registry laws as to be no longer applicable to cases where its en- forcement would work such an injustice as to give priority to the title of one who negligently failed to examine the records before pur- chasing of a grantor having no title, or who purchased at the risk that his grantor might thereafter acquire title, over that of a subsequent pur- chaser in good faith and in reliance upon the title as it appeared of record. "The whole system of registering deeds of land would become of no value if a purchaser could not rely upon the records as he finds them." Kinney v. Whiton, 44 Conn. 262, 270, 26 Am. Rep. 462 ; Whit- ing v. Gaylord, 66 Conn. ZZ7, 349, 34 Atl. 85, 50 Am. St. Rep. 87. In the case above cited of Salisbury Savings Society v. Cutting, 50 Conn. 113, the question of whether a deed with covenants of title, given be- fore the grantor acquired title to the land conveyed, and placed on rec- Aig.Prop. — 55 8QQ DERIVATIVE TITLES (Part 2 ord, would prevail over a deed given after the title was acquired, to a purchaser taking it in good faith and without knowledge of the first deed, was left an open question. The case was decided upon the ground that the second grantee was neither a purchaser for value nor, because of certain facts found, a purchaser without notice of the title of the first grantee. The note to the case by the reporter, the late Mr. Hooker, contains an able discussion of the question left undecided by the court, in which he reaches the conclusion that the deed of the subsequent bona fide purchaser for value and without knowledge of the prior deed, must prevail, under our registry laws, over that of the prior recorded deed of the negligent grantee. We think his reasoning is convincing, and is especially applicable to the facts of the present case. The plaintiff here asks for the enforcement of the registry laws. He says that from September 8th, 1899, until October 26th, 1900, both the legal and the record title to this property was in Orange Merwin, and that on said 26th of October his, the plaintiff's, assignors. Burr & Knapp, purchased from those who on the same day acquired title from Merwin. The defendaht asks for the enforcement of the law of estoppel, by which he claims that neither Burr & Knapp, nor the plaintiff, should be permitted to assert that Merwin had title, and that Marsh Brothers had no title from September 8th, 1899, until October 26th, 1900. In inquiring which of the two grantees. Young or Burr & Knapp, has acted in good faith and without negligence in purchasing from Marsh Brothers, and which is entitled to priority of title under the registry laws, we must examine their conduct in connection with certain facts, with a knowledge of which they are charged by our registry laws. The effect given by the law of this State to the proper record of conveyances of land has been very clearly declared in the recent case of Beach v. Osborne, 74 Conn. 405, 412-415, 50 Atl. 1019, 1118. We said in that case, as conclusions from the authorities there cited, "that eveiy person who takes a conveyance of an interest in real es- tate is conclusively presumed to know those facts which are appar- ent upon the land records concerning the. chain of title of the prop- erty described in the conveyance, and * * * that this presump- tion of knowledge is for all legal purposes the same in effect as actual knowledge;" that "this presumed knowledge is present at every step he takes, at every act he does," and that his good faith and belief must be, "consistent with actual knowledge of the facts affecting his title which are apparent upon the land records ;" that "one who fails to examine to see what the records disclose concerning the title to the land he proposes to take, is, in the eye of the law, negligent; and equity does not as a general rule relieve from the consequences of one's own negligence." Applying these principles to this case, we find that Alfred Young, m the eye of the law knew, when he purchased from Marsh Brothers, Ch. 8) PRIORITIES 867 that they had no title, but that Marsh Brothers on the 8th of Septem- ber, 1899, had conveyed to Merwin, and that the title was still in Mer- win, and that it so appeared upon the public records. In contempla- tion of law, therefore, he did 'not act in good faith, but was negligent in making such purchase without having first examined to see what the records disclosed concerning the title to the land he proposed to pur- chase. When Burr & Knapp took their mortgage from Marsh Broth- ers on the 26th of October, they knew that the title to the mortgaged property had been in Merwin from September 8th, 1899, until Octo- ber 26th, 1900. Since they had no reason to suppose that one having no title to the property would convey it during that period, they had no occasion to search the records to ascertain whether Marsh Brothers had made any conveyance during that period. They were only re- quired to search against each owner during the time he held the rec- ord title. The deed of Marsh Brothers to Young was not in the line of record title, and Burr & Knapp were not charged with knowl- edge of its existence. See Bingham v. Kirkland, 34 N. J. Eq. 229, and the other cases cited. It is said, however, that the Merwin deed was not on record when Burr & Knapp took their mortgage on the 26th of October. But the Merwin deed was not in fact delivered until that day, and Burr & Knapp had no reason to think that a deed delivered on that day, and before their mortgage was delivered, that is, before 3 :01 P. M., ought to, be recorded when their mortgage was delivered, nor was there any reason why they should require it to be recorded before accepting the mortgage. The records showed a good title in Merwin up to the time of the delivery of the mortgage deed. Burr & Knapp had only to satisfy themselves that a deed had been given by Merwin to Marsh Brothers that day, which was the fact, and that no conveyance had been made by Marsh Brothers since they received their deed from Merwin, which was also true. As the deed of Marsh Brothers to Young and the mortgage back by Young to Charles B. Marsh were not incumbrances upon the title of record, -the information given to Burr & Knapp by the searcher, that "the premises were free and clear of all incumbrance and the legal title in Marsh Brothers," was entirely consistent with the facts as they appeared by the records concerning the chain of title, and the fact that Marsh Brothers had that day acquired title from Merwin. The facts before us show that Burr & Knapp acted in good faith, and without negligence, and without knowledge of the Young deed, and that having on the 26th of October taken a mortgage from those, who on that day had received a deed from the legal owners, and the owners of record, their mortgage is valid. As Alfred Young had no title su- perior to the Burr & Knapp mortgage when he conveyed to the defend- ant Young on January 2d, 1901, the defendant Young by his deed of that date took no title superior to the mortgage. The plaintiff is entitled to a judgment of foreclosure. 868 DERIVATIVE TITLES (Part 2 There is error in the judgment of the trial court and it is reversed, and the case remanded for the entry of a judgment of foreclosure in favor of the plaintiff. (c In this opinion the other judges concurred/' HOLDEN V. GARRETT. (Supreme Court of Kansas, 1S79. 23 Kan. 98.) Action brought by Nina Garrett against Uriah Stephens and Mar- tha J. Stephens, his wife, John Dial, John M. Wheeler, W. H. Ryus, and Howard M. Holden, upon a note, executed by the said Uriah Stephens, November 25, 1869, payable in seven years and nine months after date, witli interest at ten per cent, per annum, and to foreclose a mortgage given at the same time to secure the payment of said note, by the said Uriah Stephens and wife, upon certain real estate situated in the county of Pottawatomie. The other defendants were made parties for tlie purpose of determining any interest they might have in and to said real estate, and the priority of all claims or liens thereon. Service of summons was duly made upon all of the defendants. Uriah Stephens, Martha J. Stephens and W. H. Ryus filed no answers, but made default in said action. John Dial, John M. Wheeler and Howard M. Holden, each filed separate answers in the action, setting up his claim or interest in said real estate. Trial at the August Term, 1878, of the district court, by the court, (a jury being waived,) when the court found for the plaintiff, and against all of the defendants except Dial, whose claim to the land described in his answer tlierein w^as con- ceded by the plaintiff, and judgment was accordingly rendered in favor of tlie plaintiff', Nina Garrett, for the amount due on said note, and declaring said mortgage to be a prior and first lien upon the lands therein described as against the clairn or interest of any and all of the other defendants. Holden brings the case to this court for review. The facts, as they appear in the plaintiff's petition, the answer of the defendant Holden, and the testimony on their part, are in sub- stance as follows : Prior to the 25th day of November, 1869, the said Nina Garrett was tlie owner in fee, in her own right, of the real estate described in her said petition, situated in the county of Pottawatomie. On said 25th day of November, 1869, the plaintiff being a minor, said real estate was sold under the direction of the probate court of Wyan- dotte county, by virtue of an order of said court, by Eliza J. Stone, the legally-constituted guardian of the plaintiff", and by her conveyed to Uriah Stephens. The note and mortgage sued on in said action were given for a portion of the purchase money therefor. This mortgage was not recorded until March 5th, 1875, at which time it was duly 17 Iiichardson v. Atlantic Coast Lumber Corporation, 93 S. C. 254, 75 S. E, 371 (I'Jil'l, ace. Ch. 8) PRIORITIES 869 recorded in the office of the register of deeds for the county of Pot- tawatomie. On the 4th and 12th days of March, 1874, respectively, two certain personal judgments were rendered by the consideration of the district court of Wyandotte county against the said Uriah Stephens, and in favor of Jacob Luke and John Olson and Nels Olson, respectively. Afterward, executions were issued by the clerk of said district court of Wyandotte county on said judgments, directed to the sheriff of the county of Pottawatomie; and on the 20th day of July, 1874, these executions were, by the sheriff of said county of Pottawa- tomie, levied upon a portion of the lands described in the mortgage of said plaintiff. No sale was made or attempted under and by virtue of said executions, but the same were returned to the court from which they were issued, and ahas and pluries executions issued, which were in turn levied upon said lands until the 25th day of November, 1876, when a sale tliereunder was made by the sheriff of the county of Pot- tawatomie, to one W. PI. Ryus. On the 30th of March, 1876, the two above-named judgments were assigned to Holden, and the assignments thereof were duly filed in the office of the clerk of the district court of Wyandotte county. Whatever interest Holden had in said real es- tate was derived from the said sherift''s sale to W. H. Ryus. Brewer, J. The contest in this case is between one who claims un- der the lien of an execution levy, and the holder of a prior but un- recorded mortgage. The judgment was in a county other tlian that in which the land was situate, and was rendered long after the ex- ecution of the mortgage. The lev^ was made before, but the sale not till after, the record of the mortgage. There was no actual notice of the existence of this mortgage. On the one side it is claimed that by virtue of section 21, ch. 22,'Gen. St. p. 187, which reads as fol- lows : "No such instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record," the mortgage is to be considered as though it had no existence, and the land as free from any incumbrance at the date of the levy, and that the lien then secured by the levy ripened into a title by the sale, and was paramount to the lien created by the subsequent record of the mortgage; and on the other hand it is claimed that the lien of the levy was only upon the actual interest of the judgment debtor in the real estate, and that as such interest was in fact limited by the mort- gage, only such limited interest was seized and bound by the levy. Of course, this is but part and parcel of a still broader question, and that is, does the lien of an execution levy extend to only the ac- tual, or does it also reach the apparent, title of the judgment debtor? Is the inquiry restricted to the face of the record, or may it pass to the actual facts ? Authorities are not wanting to support either view, and cogent reasons may be adduced in favor of each. On the one hand it may be said with force that if the mortgage lien is adjudged paramount, then the section quoted is practically nullified, and an in- 870 DERIVATIVE TITLES (Part 2 strument which the statute declares* invalid is pronounced valid ; and on the other, that if the levy is adjudged paramount, tlien the statute which authorizes a levy upon the lands, tenements and hereditaments of the debtor is extended so as to sustain a levy upon lands which are not in fact wholly his. With much hesitation, and after a long and careful examination of the question in its various relations, we have reached the conclusion that the lien of the m.ortgage must be adjudged prior and paramount. These are the reasons which have controlled us : It gives exact force to the statute declaring to what a judgment lien and an execution levy extend. Judgments "shall be liens on the real estate of the debtor, within the county." Dassler's Comp. Laws 1879, p. 656, § 419. This evidently contemplates actual and not apparent ownership. The judg- ment is a lien upon that which is his, and not that which simply ap- pears to be his. How often the legal title is placed in one party when the equitable title, the real ownership, is in others. Many reasons induce this — convenience in managing, facility in passing title, number of parties interested, and others needless to mention. And yet the record discloses only the naked legal title. Now if the judgment is a lien upon all that appears, it will cut off all the undisclosed equitable rights and interests. To extend the lien to that which is not, but which appears of record to be the defendant's, is to do violence to the lan- guage. "Real estate of the debtor" plainly means that which is in fact of or belonging to the debtor. And he who claims under a judgment lien can take no more than the statute gives. The question is not what rights some one else may have, but what rights does he acquire? The answer to this question must first and chiefly be sought in the statute which gives and defines the extent of that lien. The section defining the extent of the execution levy may not be quite so clear in its indica- tions, and yet, taken in connection with that cited concerning the judg- ment lien, it is perfectly plain. "All real estate, not bound by the lien of the judgment, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution." Dassler's Comp. Laws 1879, p. 660, § 444. It might be argued that the words "of the debtor" only qualify the immediately preceding words, "goods and chattels," and not the prior clause, "all real estate," etc. ; but, com- paring the two sections together, it is plain that no larger or other interest is taken by the levy of an execution upon real estate outside the county, than is covered by the lien of the judgment upon real estate within the county. Again, this construction of the extent to which the lien goes was settled early in the history of this court, and has never been departed from. In Swarts v. Stees, 2 Kan. 241, 85 Am. Dec. 588, Crozier, C. J., speaking for tlie court, says : "Their lien," (i. e., the hen of judgment creditors,) "is upon the lands and tenements of the debtor, and not upon lands and tenements not in fact belonging to him." True, the decision in that case was under a different record- ing act, and much of the argument in the opinion is entirely inapplica- Ch. 8) PRIORITIES 871 ble to the present question; but still, the extent of a judgment lien is plainly recognized and stated. See also Harrison v. Andrews, 18 Kan. 542. It may also here be remarked, tliat we have had occasion to notice the fact that priority of lien or title, even in the absence of actual notice, does not always hinge upon, the mere priority of record. Other matters may enter into and affect the question, and equities not shown of record may control. School District v. Taylor, 19 Kan. 287; Tucker v. Vandermark, 21 Kan. 263. Again, it may be laid down as familiar law, that a judgment creditor is not a bona fide pur- chaser. He parts with nothing to acquire his Hen. He is in a very different position from one who has bought and paid, or has loaned on the face of a recorded title. The equities are entirely unlike. One has, and the other has not, parted with value upon the face of the record. If the real prevails over the apparent title, the one is no worse off tlian before he acquired his lien — has lost nothing; while the other loses the value paid or loaned. Hence equity will help tlie latter, while it ciares nothing about the former. Further, in nearly every state in which an unrecorded mortgage has been postponed to a judg- ment lien, the statute has expressly declared that such a mortgage shall be void as against creditors ; and tlie courts have laid stress upon this fact in their opinions. Thus, the statute of Illinois, 1845, p. 108, § 23, provides : "All deeds, mortgages or other instruments of writing which are required to be recorded, shall take effect, and be in force after the time of filing the same for record, and not before, as to all cred- itors and subsequent purchasers, without notice ; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record." It has been decided under this statute that a deed not filed for record is, as to creditors and subsequent purchasers, wholly with- out effect. Martin v. Dryden, 1 Oilman (111.) 187; Cook v. Hall, 1 Oilman (111.) 575; Choteau v. Jones, 11 111. 300, 50 Am. Dec. 460; Kennedy v. Northup, 15 111. 148; Curtis v. Root, 28 111. 367; Brook- field v. Goodrich, 32 111. 363.^« See also McNitt v. Turner, 16 Wall. 352, 21 L. Ed. 341. ^« * * * The only other state ^° in which we have found or been referred to a statute exactly like ours is Iowa, in which at one time was in force a section like the one first quoted in this opinion. Under that in Brown V. Tuthill, 1 G. Greene (Iowa) 189, it was held that a "lien by attach- ment will hold against a prior unrecorded deed." The section of the statute w^as soon after modified, and in a case arising under tlie 18 Not uncommonly the statutes extend the protection to creditors. By con- struction, however, the benefit of such sttitutes generally has been limited to lien creditors. See the cases referred to in 24 Am. & Eng. Encyc. of Law, 126 et seq. 19 A portion of the opinion, in which tlie court reviews the statutes of a number of states and the decisions thereunder, is omitted. 20 That is, besides Missouri. See Davis v. Owenby, 14 Mo. 170, 55 Am. Dec. 105 (1851), quoted from and relied upon in the portion of the opinion omitted. 872 DERIVATIVE TITLES (Part 2 new law, (Norton v. Williams, 9 Iowa, 528), the court says: "We incline to .the opinion that, under the statute of 1843, the case of Brown V. Tutliill is against the current of the decisions." The weight of authority, therefore, upon the exact statute before us, is decidedly with the conclusion we have reached. Without ex- tending this opinon, we close by saying that our conclusion gives full and exact force to the statute which creates and defines a judgment lien; that it is in accord with the prior adjudications of this court; that it sustains and enforces the real equities of all parties; and that it is upheld by the decided weight of authority elsewhere upon the exact question. The judgment will be affirmed. All the Justices concurring.^* STERNBERGER & WILLARD v. RAGLAND. (Supreme Court of Ohio, 1S97. 57 Ohio St. 14S, 48 N. E. Sll.) Error to the Circuit Court of Jackson county. On the 22d day of January, 1889, the defendant in error, William Ragland, purchased a town lot in Jackson, from the Wood-Co£fman Manufacturing Company, then the owner thereof, and obtained a deed for the same in fee simple. He paid a part of the purchase price, at the time of the conveyance to him, and gave a mortgage on the lot to secure the payment of the balance. This mortgage, which contains a recital that it was given to secure tlie unpaid purchase money, was re- corded in April, 1889. The deed was never filed for record. After the conveyance was made and the mortgage recorded, judgments were recovered in the court of common pleas of Jackson county, against Ragland's grantor, which were purchased in good faith by the de- fendant in error, Morris L. Sternberger, who paid full value therefor ; and executions issued thereon were levied on tlie lot in question, which then appeared of record to belong to the judgment debtor, and it was thereafter sold under the writs to satisfy the judgments. Sternberger became the purchaser at the sale, which was confirmed by the court, and tlie sheriff in pursuance of the order of the court executed a deed to Sternberger for the lot, in due form of law, which he caused to be placed upon record. The proceeds of the sale, after payment of the costs and taxes, were applied under the order of the court toward the satisfaction of the judgments. Sternberger then sold, and conveyed by quitclaim deed, the undivided one-half of the lot to his co-plaintiff in error, Henry S. Willard, who paid full value therefor, and promptly placed his deed on record. 21 Under the Ohio mort,gage registry statute a judgment lien takes precedence over a mortgage executed before the lien attached, but recorded after. Jack- son V. Luce, 14 Ohio, 514 (1846). But it seems that in Ohio recording of mort- gages is really a part of their execution. Ch. 8) PRIORITIES 873 Thereafter, Ragland brought suit to quiet his title to the lot against Sternberger and Willard, who set up their respective claims to its own- ership. The case went on appeal to the circuit court where a finding was made of the facts, which, in addition to those already stated, are as follows: "The lot described in the petition was not improved, or fenced, and not occupied except occasionally for the storage of small quantities of lumber by the plaintiff, and some fence posts have re- mained and still remain on said lot; otherwise, said lot was vacant, and, at the time of the purchase by said Sternberger, at sheriff's sale, the character and nature of the plaintift''s possession was not of such nature as to place said Sternberger upon inquiry or notice, nor was it of such a character as to place said Willard upon inquiry nor notice when he purchased. The Wood-Coffman Manufacturing Company was, upon the deed records of said county, the apparent owner when the sheriff's sale was made. The defendant, Morris L. Sternberger, when he purchased said lot at sheriff's sale, paid value therefor in the purchase of said judgments, and he had no notice, actual or construt- tive, of plaintiff's claim thereto, unless the mortgage of plaintiff to said company was constructive notice, which we hold not to be constructive notice to him; and the defendant, Willard, when he purchased from said Sternberger, paid value therefor, and he had no notice, actual or constructive, of plaintiff's claim, unless such mortgage was construc- tive notice, which we hold was not constructive notice to him ; and neither of the defendants had notice of plaintiff's deed to said lot or claim, thereto." Upon tliis state of facts the court held, as its conclusions of law, as appears from the record that : "The Wood-Coffman Manufacturing Company having conveyed said lot by deed to plaintiff, although said plaintiff never had said deed recorded, had no further interest in said lot which could be sold at judicial sale, although it was the apparent owner of said lot upon the records, and the defendant, Sternberger, though purchasing said lot for value and without notice, could not ob- tain title thereto by purchasing at said judicial sale." Thereupon judgment was rendered against Sternberger and Willard, which they seek to have reversed here. Williams, J. The question in the case is whether Sternberger, un- der the judicial sale, became a bona fide purchaser within the rule which protects such purchasers against unrecorded conveyances. It must be regarded as established by the facts found in the court below, that there was not- such possession of the lot by Ragland as put Stern- berger upon inquiry, or charged him with notice of any claim or equity of the former, either, when the judgments were recovered, or the ex- ecutions levied, or when the sale was made and confirmed, or the deed from the sheriff was received by Sternberger; and also, tliat Stern- berger was without any actual knowledge of Ragland's unrecorded deed, or of any claim by him to any interest in the lot. The record of the mortgage executed by Ragland for the unpaid pur- 874 DERIVATIVE TITLES (Part 2 chase money for the lot, was not constructive notice of his unregistered deed, to a subsequent purchaser from his grantor. When a prospective purchaser finds a complete record title in the proposed seller, he is not bound to examine for mortgages made to the latter after he became the owner; such a mortgage is not in the chain of his title, and is not, therefore, constructive notice to a sub- sequent purchaser, of a prior unrecorded deed made by him to the mortgagor. The circuit court so held. But, notwithstanding its find- ing that Sternberger was a purchaser at the judicial sale for value and without notice, actual or constructive, of any adverse claim of Ragland to the premises he so bought, the judgment of the court was adverse to him. The judgment appears to rest upon the ground that tlie deed to Ragland, though unrecorded, divested his grantor of all interest in the lot, and thereafter nothing remained in tlie judgment debtor, al- though appearing of record to be the owner of the lot, upon which the judgments became liens, or that could be sold at judicial sale there- under. It is undoubtedly the general rule, except in so far as it is modified and controlled by statute, that a judgment creditor obtains a lien only on such interest in lands as his debtor had when the judgment was rendered, and, it is subject to such equities as could then be success- fully asserted against the debtor. But our statute (section 4134, Re- vised Statutes 1890), requires that all deeds and instruments for the conveyance of lands, or interests therein, "shall be recorded in the of- fice of the recorder of the county in which the premises are situated," and provides that, "until so recorded or filed for record, the same shall be deemed fraudulent, so far as relates to a subsequent bona fide pur- chaser, having, at the time of purchase, nO' knowledge of the existence of such former deed or instrument." This statute renders any prior unrecorded deed wholly ineffectual to convey the title out of the gran- tor, as against a subsequent bona fide purchaser from him, and leaves him with as full and ample power to convey a good title to such sub- sequent purchaser as if the prior conveyance had not been made. And, it is settled by the adjudications of this court, that purchasers at ju- dicial sales, without notice of a prior unrecorded deed from the judg- ment debtor, are within the protection of the statute equally with pur- chasers at private sale. Scribner's Lessee v. Lockwood, 9 Ohio, 184; Morris v. Daniels, 35 Ohio St. 406. The title acquired by Sternberger at the judicial sale was, therefore, superior to that of Ragland, unless the former is to be denied the position of a bona fide purchaser because he was the owner of the judgments under which the sale was made. It is claimed that as he was the owner of the judgments at the time of his purchase, and their satisfaction pro tanto was the only consid- eration he paid, he does not come within the rule in favor of bona fide purchasers. This position is sought to be sustained by Lewis v. Ander* son, 20 Ohio St. 281. But that case simply holds, that; "Where there Ch. 8) PRIORITIES • 875 is no consideration for a mortgage of real estate other than a pre-exist- ing debt of the mortgagor, and the mortgagee is not induced thereby to change his condition in any manner, he cannot be regarded as a bona fide purchaser for value." That decision is placed upon the ground, as stated in the opinion, that, "the rule which favors a bona fide purchaser of land, and that which protects the holder of negotiable paper for value before due from infirmities affecting the instrument before it was transferred, are based substantially on the same equitable grounds, and upon tlie policy of the law which favors trade and the security of titles, as conducive to the public good." And in that case, Roxborough v. Messick, 6 Ohio St. 448, 67 Am. Dec. 346, is cited, where the rules applicable in determining what considerations are sufficient to protect the holders of commercial paper are fully considered, which, as there laid down, have since been regarded as the settled law on that subject. It is there held, that while a voluntary transfer of a negotiable instrument to se- cure a pre-existing debt, where the parties are left in respect to such debt in statu quo, tliere being no new consideration, stipulation for delay, or credit given, or right parted with, is not sufficierit to protect the holder against equities existing between the prior parties at the time of the transfer, yet, when the note is transferred in payment of the precedent debt, the consideration is sufficient to entitle the holder to such protection. "The weight of authority," says Swan, J., in that case, "seems to settle the principle, that where a negotiable instrument of a third person is transferred before due, in payment of a pre-exist- ing debt, and is bona fide received by the creditor, without notice, tlie defenses existing as between the prior parties cannot be set up against such holder." And that learned judge further says, in that case, tliat there is "no substantial difference between the consideration for the transfer of negotiable paper in payment of a precedent debt, or in payment of goods sold at the time of such transfer." Applying these principles to a purchaser of real property, it was held in Clements v. Doerner, 40 Ohio St. 632, that a purchaser who takes a conveyance of real estate in payment of a pre-existing debt is a bona fide purchaser for value, and entitled to be protected as against a prior defective mort- gage made by his grantor. When the conveyance is received in pay- ment of the debt, there is a change in the situation of the parties ; the debt is for tlie time being, at least, discharged ; and, though the cred- itor may be restored, upon failure of his title to the property, to his right to enforce the collection of the debt, so recovery may be had for any other consideration parted with for the property, where the title for any cause fails. If it be said Sternberger could have the satisfaction of his judgments vacated and new process issued for the collection of the judgments out of any property of the judgment debtor, so, any stranger, who might have become the purchaser at the sale, would be entitled to the same remedy. Revised Statutes 1890, §§ 5410, 5412. The necessity 876 DERIVATIVE TITLES (Part 2 of resorting to such a remedy is sufficient, of itself, to show that a sub- stantial change occurred in tlie situation of the parties by the satisfac- tion of the judgments on the confirmation of tlie sale; and the neglect of Ragland to have his deed placed on record, does not entitle him to drive the purchaser, in either case, to that remedy. Had Sternberger made his purchase at private sale,- instead of at a judicial sale, there could be no doubt, we think, of the superiority of his right to the prop- erty over that of Ragland; and his right in that respect is none tlie less, because the conveyance was made through the instrumentality of the sheriff and the forms of judicial proceedings, instead of immedi- ately from the judgment debtor. The deed of the sheriff conveyed a title as good and complete as the judgment debtor could have con- veyed. In the note to Basset v. Nosworthy, 2 Leading Cases in Equity, 110, 111, the conclusion reached after a full discussion of the subject, and review of the cases, is that the weight of authority in tliis country is "in favor of the proposition that a purchaser at a judicial sale, stands on the same footing with a purchaser directly from the debtor; and, that a purchaser at such sale will take the land discharged of any claim or title, whether arising under an unregistered deed, or a mere equity, of which he had no notice at tlie time of the purchase, and which would be invalid as against an ordinary purchaser;" and fur- thermore, that the rule is the same "when the judgment creditor be- comes the purchaser, because the money which he pays goes in sat- isfaction of the debt; and every additional bid is necessarily an ad- vantage to the defendant in the judgment." The following, among oth- ers, may be added to the cases there cited in support of the rule as stated: Foorman v. Wallace, 75 Cal. 552, 17 Pac. 680; Evans v. Mc- Glasson, 18 Iowa, 150; Butterfield v. Walsh, 21 Iowa, 97, 89 Am. Dec. 557; Rorer on Judicial Sales, sec. 866. Judgment reversed and judgment for the plaintiffs in error. ^^ 22 Minshall and Spear, JJ., dissented in part and from the judgment of re- versal. See Shirk v. Thomas, 121 Ind. 147, 22 N. E. 976, 16 Am. St Rep. 381 (1SS9), senible contra. Compare Gary v. WMte, 52 N. Y. 138 (1873), where a mortgage given as se- curity for a pre-existing debt, there being no surrender of securities nor ex- tension of time by the mortgagee, was held to be inferior to an eai-lier imre- corded deed of the mortgagor. See, too, Western Grocer Co. v. Alleman, 81 Kan. 543, 106 Pac. 460, 27 L. R. A. (N. S.) 620, 135 Am. St. Rep. 398 (1910). A., a creditor of X., acquires a lien by judgment upon land of X. in a state where creditors are within the protection of the recording acts. A. has no no- tice of an earlier unrecoi-ded deed by X. On sale of the land under A.'s judg- ment, B., who knows all about the unrecorded deed, purchases same and re- ceives a deed therefor. What is the situation as between him and the grantee in the unrecorded deed? See Grace v. Wade, 45 Tex. 522 (1876). Ch. 8) PRIORITIES 877 STRONG V. WHYBARK. (Supreme Court of Missouri, 1907. 204 IMo. 341, 102 S. W. 908, 12 L. R. A. [N. S.] 240, 120 Aiu. St. Rep. 710.). Woodson, J. This is a bill in equity, instituted in the circuit court of Butler county, wherein plaintiff seeks to have her title quieted to five hundred and twenty acres of land. John R. Boyden was one of the several defendants named in the bill. He filed an answer claiming an interest in and to one hundred and sixty acres of said land, and also denied generally the allegations of the bill. No point is made against the pleadings, and he is the only defendant whose interest is involved in this appeal. The facts in the case are undisputed and are as follows : Seth D. Hayden was the common source of title, and on March 6, 1861, by his warranty deed, for a recited consideration in the deed of six hundred and forty dollars, conveyed said land to William A. Moore, and on August 26, 1863, said Hayden, by his quitclaim deed, for a re- cited consideration of "natural love and affection and five dollars," conveyed the same land to Josephine Hayden. The deed to Hayden was recorded April 11, 1868, and the one to Moore was recorded De- cember 14, 1874. The plaintiff's title is derived through mesne conveyances from Josephine Hayden, while defendant's title is derived through similar conveyances from William A. Moore. It was admitted that the land .was wild and unoccupied. This was all the evidence in the case. The court found for defendant and rendered judgment for him. The plaintiff in due time filed his motion for a new trial, which was overruled by the court, and to the action of the court in overruling said motion the plaintiff duly excepted, and has appealed the cause to this court. I. The sole question involved in this case is, did the subsequently executed quitclaim deed of Seth D. Hayden to Josephine Hayden, dated August 26, 1863, by virtue of its prior recordation, have the force and effect of conveying to her the title to the land in controversy by force and operation of the registry act, and thereby render invalid and inop- erative the prior warranty deed made by him to William A. Moore, dated March 6, 1861, but not filed for record until December 14, 1874? There is no evidence whatever in this record tending to show that Josephine Hayden had any notice or knowledge of the execution of the prior unrecorded warranty deed from Seth D. Hayden to said Moore, at the time he made the quitclaim deed to her, nor is there any evi- dence of fraud or collusion between Seth D. Hayden and Josephine Hayden. Both William A. Moore and Josephine Hayden neglected for years to file their deed for record, as provided for by section 923, Revised Statutes 1899, yet the latter filed her deed about six years prior to the time when he filed his. 878 DERIVATIVE TITLES (Part 2 The statute provides that "no such instrument in writing shall be valid, except as between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record." Rev. St. 1899, § 925. According to the provisions of this section, the deed from Hayden to Moore was invalid and conveyed no title to the land in controversy in so far as Josephine Hayden was concerned, because she had no no- tice of its execution at the time she filed her deed for record. If the* exception mentioned in the section just quoted was the only exception or limitation to that statute, then there would be no question as to the title of Josephine Hayden and those claiming under her, but the courts upon principles of equity and justice have repeatedly held that if Ijhe subsequent purchaser either had notice of the prior unrecorded deed, or if he was a purchaser without having paid a good and valuable con- sideration for the land, then he would take nothing by his purchase and deed. Maupin v. Emmons, 47 Mo. 304 ; Aubuchon v. Bender, 44 Mo. 560. The question which now presents itself is, was Josephine Hayden a purchaser of the land in question for a good and valuable considera- tion? The deed recites that the conveyance was made for and in "con- sideration of natural love and affection and five dollars to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged." A valuable consideration is defined to be money or something that is worth money. 2 Washburn on Real Prop. (4th Ed.) p. 394; 1 Chitty on Contracts (11th Am. Ed.) 27. It is not necessary that the consideration should be adequate in point of value. Although small or even nominal, in the absence of fraud, it is enough to support a contract entered into upon the faith of it. Forbs v. Railroad, 107 Mo. App. loc. cit. 674, 82 S. W. 562; Marks v. Bank, 8 Mo. 316; Ridenbaugh v. Young, 145 Mo. loc. cit. 280, 46 S. W. 959; Blaine V. Knapp & Co., 140 Mo. loc. cit. 251, 41 S. W. 787; Anderson v. Gaines, 156 Mo. 664, 57 S. W. 726; Green v. Higham, 161 Mo. 333, 61 S. W. 798, 6 Am. and Eng. Ency. Law (2d Ed.) p. 694, par. 5. It seems to us that it would be a useless waste of time and energy to cite authorities in support of the proposition that five dollars or any other stated sum of money in excess of one cent, one dime, or one dollar, which are the technical words used to express nominal consid- erations, is a valuable consideration within the meaning of the law of conveyancing.^* 23 In Morris v. Wicks, 81 Kan. 790, 106 Pac. 1048, 26 I>. R. A. (N. S.) 681, 19 Ann. Cas. 310 (1910), the consideration paid was one dollar. Held not suffi- cient to make out a case of bona fide purchaser for value. But in Ennis v. Tucker, 78 Kan. 55, 96 Pac. 140. 130 Aw. St. Rep. 352 (1908), a consideration of ^iO, though inadequate, was held sufficient to make out a case of purchaser for value. In Ten Eyck v. Witbeck, 135 N. Y. 40, 31 N. E. 994, 31 Am. St. Rep. 809 (1892), the subsequent conveyance was made toi a child of the grantor in considera- tion of $10 paid and ani agreement by the Sjrantee to pay annually to designated persons the receipts from the property. The property was worth twenty thou- Ch. 8) PRIORITIES 879 It has been suggested that a quitclaim deed is notice of pre-exist- ing equities, and that those who claim under Josephine Hayden had notice that her title to this land was questionable, and that neither she nor they could defend upon the ground that they were bona fide pur- chasers for valuable consideration without notice of the title of the true owner. Stivers v. Home, 62 Mo. 473; Mann v. Best, 62 Mo. 491 ; Ridge way v. Holliday, 59 Mo. 444. But the rule last suggested has no application to a case where the grantee under a subsequent quitclaim deed from the same grantor ac- quired the title for value and without notice of the former unrecorded deed. Fox v. Hall, 74 Mo. 315, 41 Am. Rep. 316. "A purchaser for value by quitclaim deed is as much within the protection of the registry act as one who becomes a purchaser by a warranty deed." Munson V. Ensor, 94 Mo. loc. cit. 509, 7 S. W. 110; Campbell v. Gas Co., 84 Mo. 352; Brown v. Coal Co., 97 111. 214, VI Am. Rep. 105; Elliott V. Buffington, 149 Mo. loc. cit. 676, 51 S. W. 408; Ebersole v. Rankin, 102 Mo. 488, 15 S. W. 422. Where the controversy is between the vendee of a duly recorded deed and the vendee of a prior unrecorded deed from the same ven- dor, the settled rule of law in this State seems to be that the considera- tion in the latter must be such as the law denominates a valuable con- sideration as distinguished from a good consideration. We know of no case which has gone farther and holds that the purchaser under the recorded deed must have paid a full and adequate consideration for the land. If fraud is made an issue in the case, then the inadequacy of the consideration paid may be taken into consideration with all the other facts and circumstances in the case for the purpose of establishing fraud; but in the absence of fraud, a want of consideration cannot be shown against a recital of consideration for the purpose of de- feating the operative words of a deed. Bobb v. Bobb, 89 Mo. 411, 4 S. W. 511; Henderson v. Henderson's Ex'rs, 13 Mo. 151; Hol- locher, v. Hollocher, 62 Mo. loc. cit. 273; McConnell v. Brayner, 63 Mo. loc. cit. 463 ; McCrea v. Purmort, 16 Wend. (N. Y.) 475, 30 Am. Dec. 103; Farrington v. Barr, 36 N. H. 86; Kimball v. Walker, 30 in. 511. sand dollars. Held that the child was not a purchaser for valuable considera- tion under the recording statute so as to be preferred over an earlier unrecord- ed deed of the same grantor. The court said : "We deem it unnecessary to undertake to determine here what degree of adequacy of price is required to uphold a subsequent deed first recorded. Upon this branch of the case we have no occasion to go, fartlier. than to hold that a small sum, inserted and paid, perhaps because of a popular belief that some slight money consideration is necessary to render the deed valid, will not of itself satisfy the terms of the statute, where it appears upon the face of the conveyance, or by other competent evidence, that it was not the actual consideration." See, also, Dunn v. Bamum, 51 Fed. 355, 2 C. C. A. 265 (1S92), where the con- sideration for the second conveyance was $100, the property then being worth $30,000, and at time of the suit $1,000,000. 880 DERIVATIVE TITLES (Part 2 In the case at bar, however, there was no evidence introduced tend- ing to prove the recited consideration of five dollars was not in fact paid. Counsel for defendant, in both his oral and written arguments, con- tends that Josephine Hayden procured her deed from Seth D. Hay- den by fraud. It is a sufficient answer to that to say that no such issue is made by the pleadings in the case, nor was there a word of evidence introduced at the trial tending to establish that fact. If defendant wished to rely upon fraud as a defense, he should have alleged and proved it. The burden of proving such an issue is upon the defendant. Jackson v. Wood, 88 Mo. 76; Nauman v. Oberle, 90 Mo. 666, 3 S. W. 380; Taylor v. Crockett, 123 Mo. 300, 27 S. W. 620. It follows from what has been said that the judgment of the circuit court must be reversed, and the cause remanded for a new trial. All concur.^* THOMAS V. STONE & GRAHAM. (Court of Chancery of Mieliisan, 184,3. Walker Ch. 117.) This was a bill to foreclose a niortgage. The complainant, January 31st, 1837, in consideration of $900, con- veyed to Stone certain real estate situate in Auburn, Oakland county, and took back a mortgage on the same premises, for $800 of the pur- chase money. On the 24th day of August following, and before the mortgage to Thomas was recorded. Stone conveyed the premises to Graham by warranty deed, which was recorded on the same day. The bill charged Graham with notice of the mortgage when he pur- chased, and that nothing had been paid by him to Stone. Graharn, by his answer, denied all notice, and stated that, at the time of the exe- cution of the deed to him, he executed and delivered to Stone his obligation for $200, which was unpaid, and also a bond in the penal sum of $800, conditioned to reconvey a part of the premises to Stone, on his .return from the South, where he expected to be gone five years. The bill was taken as confessed against Stone, who was a non-resident defendant. Several witnesses were examined by complainant; and Graham, by consent of the parties, was examined concerning the consideration that had been paid by him. The: Chancellor.^^ The mortgage to Thomas and the deed to Graham, were given long before the Revised Statutes took effect; and, by the statute in force at the time for the registry of mortgages, it was provided that no mortgage, nor any deed, conveyance, or writing, in the nature of a mortgage, should defeat or prejudice the title or interr 24 See, further, Browoi v. Welch, IS 111. 343, GS Am. Dec. 549 (1S57). 25 A portion of the opinion is ouiitted. Ch. 8) PRIORITIES 881 est of any hcfna fide purchaser of any lands or tenements, unless the same had been duly registered. Laws of Michigan 1833, p. 284, § 2. A plea of a bona fide purchaser without 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 have been actually paid before notice. If a part has been paid, and a part remains unpaid, the purchaser will be protected in what he has paid, but not in any subsequent payments made by him. Frost v. Beekman, 1 Johns. Ch. (N. Y.) 301 ; Jewett v. Palmer, 7 Johns. Ch. (N. Y.) .65, 11 Am. Dec. 401. This is what is meant by bona fide purchaser in the act referred to. Dickerson v. Tillinghast, 4 Paige (N. Y.) 215, 25 Am. Dec. 528. There is no difference "between a purchaser in good faith, under the recording act, and a bona fide purchaser within the decision of Courts of Equity in other cases." Grimstone v. Carter, 3 Paige (N. Y.) 421, 24 Am. Dec. 230. The registry laws were designed to protect subsequent purchasers and mortgagees, who had parted with their money, and taken a deed, against prior conveyances by their gran- tors, of which they had no notice. They were not made for the protec- tion of prior purchasers or mortgagees, who stood in need of nothing of the kind. But equity will not permit a subsequent purchaser to use what the law has placed in his hand as a shield, for a purpose not necessary to his protection, and to the injury of a prior bona fide purchaser. By the English registry laws all prior conveyances are declared fraudulent and void against subsequent purchasers, whose deeds are first re- corded. Sug. on Vend. 498. And, at law, the last conveyance, when first .recorded, carries with it the legal title, although the vendee had notice of the prior conveyance ; but in equity, where the intention is looked at, rather than the words of the registry act, he is held to be bound by the previous conveyance. Sug. on Vend. 511, Ed. of 1820. Graham denies he had any notice of the mortgage when, he pur- chased ; and there is no positive evidence on that point. The transac- tion, when viewed in all its parts, looks much like a piece of con- trivance to defraud Thomas. It is not necessary, however, to go into the testimony ; for, admitting Graham had no notice of the mortgage, still he is not a bona fide purchaser. He has paid nothing. It is not enough that the party has secured the purchase money ; he must have paid it, or became bound for it in such a way that this Court could not relieve him from the payment of it ; as, by a promissory note, which had been negotiated, or the like. The bond for $200, if it has been assigned by Stone,' (of which there is no evidence,) would, in the hands Qf the assignee, be subject to all equities existing against it before it was assigned. * * * Reference to Master to compute amount due, &c.^* 2" What would be the situation where notice of the earlier conveyance or claim is received after part, but not all, of the consideration has been paid? Aig.Prop. — 56 882 DERIVATIVE TITLES (Part 2 MARSHALL v. ROBERTS. (Supreme Court of Minnesota, 1S72, IS IMinn. 405 [Gil. 3Go], 10 Am. Rep. 201.) The plaintiff, claiming that the defendant was the owner of certain real estate, and that after having sold and conveyed the same to him, and knowing his deed was unrecorded, he sold and conveyed the same premises to other parties, who were purchasers in good faith, and whose deeds were recorded, brought this action to recover damages therefor. At the trial, after the plaintiff' had introduced his evidence and rested, the defendant moved for a dismissal of the action. The court granted the motion and judgment of dismissal was entered. The plaintiff' appeals to this court. The facts upon which the decision is based, are fully stated in the opinion of the court. Berry, J. For the purpose of determining the only question neces- sary to be considered in this case, we may assume that the following propositions, which plaintiff claims to have proved, or to have oft'ered to prove, are true as matter of fact: 1st. That on the 12th day of May, 1860, Louis Roberts was the owner of lot four, in block four, of the town of St. Paul, according to the recorded plat thereof. 2d. That on said 12th day of ]\Iay said Roberts, together with his wife, executed and delivered to the plaintiff, Joseph M. Marshall, a quit-claim deed of all their right, title, interest, claim, and demand, in and to said lot, which deed through inadvertence on plaintiff's part has never been recorded. 3d. That on the 2d day of August, 1865, said Roberts (well know- ing his deed to Marshall, and Marshall's inadvertent omission to have the same recorded) for a valuable consideration, executed and deliv- ered (his wife joining) to Uri L. Lamprey a quit-claim deed of all their right, title, interest, claim and demand in and to said lot, which deed was duly recorded August 3d, 1865, the said Lamprey at the time of said conveyance to him, and at the time of paying the consideration therefor, having no notice of the aforesaid convevance to the plain- tiff. 4th. That on the 22d day of May, 1867, said Lamprey and wife, for a valuable consideration, executed and delivered to William J. Cutler a warranty deed of said lot, which was duly recorded on the 29th day of May, 1867, the said Cutler at the time of such conveyance to him, and at the time of paying the consideration therefor, having no notice of said conveyance to the plaintiff, and having purchased in good faith. Plaintiff's claim is, that by reason of defendant's deed to Lamprey^, and the recording thereof, he (plaintiff) has lost his title to the lot in question, and has therefore suffered damage to the value of said lot, which damage he seeks to recover of defendant in this action. Bearing on the general question, see Youst v. Martin, 3 Serg. & E. (Pa.) 423 (1817) ; Wenz v. Pastene, 209 Mass. 359, 95 N. E. 793 (1911). Ch. S) PRIORITIES ' 883 If the deed from Roberts to plaintiff conveyed nothing to plain- tiff, the subsequent deed to Lamprey can have taken nothing away from him, or, in other words, it cannot have damaged the plaintiff. If on the other hand, as would appear from the facts before as- sumed, the deed from Roberts to plaintiff conveyed a good, title to the lot in question, or any right, title, interest, claim or demand in or to it, then, neither such good title, nor any such right, title, interest, claim or demand, could be taken away or impaired by the subsequent con- veyance to Lamprey. For the deed to Lamprey is a quit-claim deed in common form, the effect of which, under our statute, is to pass such estate as the grantor could lawfully convey by the ordinary deed of bargain and sale. In Martin v. Brown, 4 Minn. 291 (Gil. 201), it is held that the legislature by the words "lawfully convey," intend to limit the estate conveyed by a qmt-claim deed; to such as the gran- tor has a legal right to convey, and that as he "may not lawfully con- vey land which he has already conveyed to another, nothing passes by such deed beyond the grantor's actual interest at the time of the conveyance. And in Hope v. Stone, 10 Minn. 152 (Gil. 114), where there was a conveyance (by warranty deed) of all the right, title, in- terest, etc., etc., of the grantor in and to certain land, it was held that nothing passed to the grantees by the conveyance which the gran- tor had previously conveyed to the other parties. See also cases there cited. In Everest v. Ferris, 16 Minn. 26 (Gil. 14), the rule thus laid down in Martin v. Brown, is reiterated ; and independently (so far as appears) of any statute, it is held in May v. Le Claire, 11 Wall. 232, 20 L. Ed. 50, that a party who has acquired his title by a quit- claim deed cannot be regarded as a bona fide purchaser without notice, and that such conveyance passes the title as the grantor held it, and the grantee takes only what the grantor could lawfully convey. The provisions of our statute in regard to the effect of recording and failing to record deeds, are also in entire harmony with the views expressed in the case cited. Section 54, ch. 35, Pub. Stat., which seems to have been in force at the time when Roberts made the deed to Lamprey, enacts that every conveyance by deed, &c., shall be recorded, &c., and that every such conveyance not so recorded shall be void, as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded. Substantially the same pro- visions as those above mentioned, are also found in section 24, c. 46, Rev. Stat, and section 21, c. 40, Gen. Stat., so that our statute in this particular seems to have remained unchanged. These provisions, as will appear upon a moment's reflection, so far from militating against the views expressed in the cases cited, come to their aid, since it is only the purchaser of the same real estate, or any portion thereof, who by his priority of record cuts out the title of a prior purchaser. For when the second purchaser obtains by his quit-claim deed only what his grantor had (his grantor's right, title and interest) at the time 884 ' DERIVATIVE TITLES (Part 2 when such deed was made, he is not a purchaser of the same real estate (or any part thereof) which his grantor had previous!}' conveyed away and therefore no longer has. But besides this, the grantee in a quit-claim deed like that from Roberts to Lamprey, though he may not in fact have known that his grantor had previously conveyed the described premises to another, and though he may not in fact have in- tended to defraud such prior grantee, is not a purchaser in good faith as against such prior grantee, for nothing is attempted to be trans- ferred to him, except whatever right, title, &c., the grantor has at the time when the quit-claim deed is executed, so that as in the case of Hope V. Stone the very terms of the deed are notice of the existence of the rights which have been conferred upon such prior grantee, or any other person. These considerations, as it seems to us, dispose of this case and pre- vent us from reaching the questions mainly discussed by plaintiff's counsel. The judgment entered below dismissing the action is af- firmed.^^ 2 7 American Mortsr. Co. v. Hutchinson, 19 Or. ?,?A, 24 Pac 515 (1S90), ace. Wickhani v. Hentliorn, 91 Iowa, 242, 59 N. W. 276 (1894); Reed v. Knights. 87 I\Ie. 181, 32 Atl. 870 (1895) ; Messenger v. Peter, 129 Mich. 93, 88 N. W. 209 (1901) ; Fowler v. Will, 19 S. D. 131, 102 N. W. 598, 117 Am. St. Rep. 938, 8 Ann. Cas. 1093 (1905) ; Thorn v. Newsom, 64 Tex. 161, 53 Ain. Rep. 747 (1885), accord in result. "Under the cloak of quitclaim deeds, schemers and speculators close their eyes to honest and reasonable inquiries, and traffic in apparent imperfections in titles. The usual methods of conveying a good title — one in which the grantor has confidence — is by warranty deed. The usual method of conveying a doubt- ful title is by quitclaim deed. The rule is wise and wholesome which holds that those who take by quitclaim deed are not bona fide purchasers, and take only the interest which their grantors had." Peters v. Cartier, 80 Mich. 124, 129, 45 N. W. 73, 74, 20 Am. St. Rep. 508 (1890). "While nonregistered deeds are declared void by the statute as to subse- quent purchasers for value and v\-ithout notice, still the doctrine is well settled that a subsequent purchaser, although for value and without actual notice. who takes under strictly a quitclaim deed — that is, one by which the chance of title, and not the land itself, is conveyed — will not be accorded the protection of the statute, for the obvious reason that he contracted for the interest only that his vendor then had in the land. If the vendor had previously divested liiuiself of the title to a portion or all of the land, to the extent of the divesti- ture there would be no right remaining in the vendor to pass by the quitclaim to the vendee. It is, then, the interest of the vendor for which he contracts, and it is to such interest only that he is entitled under the quitclaim deed." Thorn v. Newsom, supra. After the decision in Marshall v. Roberts, the Minnesota Legislature amend- ed the recording statute so that a grantee in a subsequent quitclaim deed would be on the same footing, as to prior imrecorded deeds, as a grantee iu a bargain and sale deed. Strong v. Lynn, 38 Minn. 315, 37 N. W. 448 (1888). And in Maine the rule of Reed v. Knights, supra, has been changed by statute. Rev. St. 1903, c. 75, § 11. Ch. 8) PRIORITIES 885 SMITH'S HEIRS v. BRANCH BANK AT MOBILE. (Supreme Court of Alabama, 1852. 21 Ala. 125.) Chilton, J.^^ In order to disembarrass this case from the confu- sion in which so many mesne conveyances involve it, we may con- sider Smith, the defendant, as the vendor to Dubose and Kibbe, and as holding their mortgage to secure the purchase money. We may then, without changing the legal effect of the facts, lay out of view the sale to Meggison by D. and K., and the foreclosure of the mortgage taken by them ; since the land was purchased by their agent, J. C. Du- bose, who was the mere conduit for convenience sake of the interest of Dubose and Kibbe to the Bank. It is too clear to admit of doubt, that an unrecorded mortgage, as between the parties themselves, is vafid and binding. It is also valid as to all subsequent creditors or purchasers with notice of its existence. Smith V. Zurcher, 9 Ala. 208 ; Myers v. Peek's Adm'r, 2 Ala. 648 ; Tut- tle V. Jackson, 6 Wend. (N. Y.) 226, 21 Am. Dec. 306. It is equally clear, that if the mortgagor sells the land to an innocent bona fide purchaser, taking a mortgage from him to secure the purchase money, and obtains a decree of sale upon a foreclosure suit, at which, by himself or his agent, he becomes the purchaser, he is not in a condi tion to invoke the protection afforded a bona fide purchaser without notice, so as to defeat the mortgage he has executed to his vendor ; for this would be to take advantage of his own wrong. "His conscience," says Judge Story, "is still bound by his meditated fraud, and if the estate revests In him, the original rights attach." 1 Story's Eq. § 410. The case, then, resolves itself into this : Considering Dubose and Kibbe as mortgagors to Smith, whose mortgage was not recorded, and as the vendors to the Bank, through their agent, J. C. Dubose, who swears he was a mere naked trustee, without any interest whatever, does the Bank, under the circumstances, and in view of the character of the deed executed to it, occupy the position of a bona fide purchaser for a valuable consideration without notice, within the meaning of our statutes declaring mortgages of real estate not recorded within sixty days to be void as against such purchasers ? The instrument under which the Bank claims, is a quit claim deed, or, what is more appropriately designated by the common law term, a re- lease. The effective words are, "that the said Dubose doth remise, re- lease and forever quit claim, all his right, title, claim, &c., unto the said Branch Bank, in the full and actual possession now being, and its suc- cessors and assigns forever." It is said, in the Touchstone (p. 320) that the words most common and appropriate in a release, are, remisi, relax- avi, and quietum clamavi ; and that a release may enure by way of passing the estate, as where one joint tenant or co-parcener releases 28 The statement of facts and a portion of the opinion are omitted. The case api)ears from the opinion. 886 DERIVATIVE TITLES (Part 2 his right to the other ; or by way of passing the right, as where the dis- seisee releases to the disseisor ; or, it may operate by way of enlarging an estate, where the releasee has an estate capable of being enlarged, and is in privity with the releasor ; or by way of extinguishment. Gilb. on Ten. 55; Shep. Touch. 321 ; Co. Lit. 272; Bouv. Inst. vol. 2, p. 412. At the common law, it is said, a freehold title could be released in five ways: 1. To the tenant of the freehold in fact or in law without any privity ; 2. To the remainder-man ; 3. To the reversioner without privity ; 4. To one having a right only by privity ; and, 5. To one hav-* ing a privity only without right. 2 Bouv. Inst. 412; Gilb. Ten. 53 ; Co. Lit. 265. So that, according to the principles of tlie common law gov- erning releases, the Bank, the releasee in this case, filling none of the above requisites, would not take the title of the releasor. But in this country, the technical rules relating to a release are generally held not to apply, and a quit claim deed is considered as passing the title of the releasor, without any warranty as to outstanding titles or incum- brances, but merely against the grantor himself, and those claiming under him, by descent, or by subsequent conveyances of the same inter- est previously transferred. The grantor in this case only purports to release and quit claim the title and interest which he had. The question then arises, what interest did he have? The plain answer is, the mere equity of redemption, nothing more, and this only passed by the quit claim deed. Thus the Bank stands in the place of Dubose and Kibbe, the mortgagors, holding only what they could sell, the equity of redemption. Were we to hold that M. Dubose intended that his agent, J. C. Du- bose, should sell a greater interest than he really had, and by so doing enable the Bank to shelter itself under the plea of being a bona fide purchaser for a valuable consideration, so as to defeat the mortgage which D. and K. had executed to Anderson, we should impute a fraud- ulent intent to the parties when the deed which their agent has entered into justifies no such inference. The unregistered mortgage being valid and effectual as between the mortgagor and mortgagee, the subsequent sale of the entire estate by the mortgagor is a fraud upon the rights of the mortgagee ; and the reason, I apprehend, upon which the statute proceeds in preferring the subsequent bona fide purchaser to the mortgagee, is, that one of two innocent persons must suffer by the fraud of a third party, and the mortgagee, failing to use the diligence which the statute requires in recording his mortgage, is considered most in default, and is therefore properly adjudged by the statute to bear the loss. But we are not allowed by the rules of law, any more than by the principles of common charity, to suppose fraud, when the facts out of which it is supposed to arise may well consist with honesty and pure intention. Steele v. Kinkle & Lehr, 3 Ala. 352. We cannot, therefore, in this case presume that the vendor of the Bank attempted to sell more than he might lawfully sell, which was Ch. 8) PRIORITIES 887 the equity of redemption. This was his title, and this alone enures by the quit claim. To enlarge the interest by construction, would be to make a different contract from that which the parties have entered into; would be, by judicial interpretation, contrary to the face of the deed and the facts on which it is founded, to pass the entire estate, by investing it with the consequences of a fraudulent sale of the whole, when the grantor had but the equity of redemption ; and this, too, for the purpose of de- feating the just lien of Smith for the purchase money which is due from Dubose and Kibbe. We feel quite confident no case can be found which carries the doctrine thus far. The case of Oliver v. Piatt, 3 How. (U. S.) 333-410, 11 L. Ed. 622, v/hich is cited with seeming approval by this court in Walker et al. v. Miller & Co., 11 Ala. 1067, fully sustains us in tlie position, that the Bank, holding a mere quit claim deed, cannot be regarded as a bona fide purchaser for a valuable consideration without notice. And we see no reason why such purchaser should be allowed to invoke the aid of the registry statute, to avoid a prior mortgage which has not been recorded, any more than the aid of tlie Chancery Court for his pro- tection. We express no opinion as to what we should decide, had the deed to the Bank, even though it contained no warranty, purported to convey the entire title to the premises, instead merely of that which the gran- tor had. But we desire to limit our opinion to tlie facts of the case before us, lest parties should be misled as to the extent of jt. * * * After the best consideration we have been able to bestow upon this case, we are satisfied that the court mistook the law in several of the charges given. Its judgment must, therefore, be reversed, and the cause remanded. BOYNTON v. HAGGART. (Circuit Court of Appeals, Eighth Circuit, 190.3. 120 Fed. 819, 57 C. C. A. .301.) Sanborn, Circuit Judge. These appeals present controversies be- tween three sets of claimants to the title to certain timber lands in the state of Arkansas. Lucetta B. Boynton and her associates, the com- plainants below, are the devisees under the will of C. O. Boynton, de- ceased, who brought this suit against James Haggart and William Mc^ Masters, hereafter called the "defendants," to quiet in himself the title to about 20,000 acres of land which he bought of the Citizens' Bank of Louisiana in the year 1883. L. D. Rozell and his associates, the heirs of A. B. Rozell, deceased, intervened in this suit, and claimed the title to a portion of these lands. There was a hearing and a decree for the defendants, which the complainants and the interveners challenge by separate appeals. The principal question which the appeal of the complainants presents is whether or not an innocent purchaser under a deed of all the right. S88 DERIVATIVE TITLES (Part 2 title, and interest in the lands owned by his grantor in a certain state, without a more definite description, may successfully hold the lands which his grantor appeared by the registry to own when he made this deed as against a claimant under a prior unrecorded conveyance of the same lands by the same grantor. The question arises in this way: From 1873 until October 26, 1883, the records of the counties in which these lands were situated disclosed a complete chain of title to them from D. C. Cross, the grantee of the state of Arkansas, to the Citizens' Bank of Louisiana. On Alay 3, 1880, however, a decree had been ren- dered in one of the courts of the state of Arkansas in a suit between the executor, the executrix, and the devisees of the will of Jeptha Fowlkes, complainants, and the Citizens' Bank of Louisiana, defend- ant, to the effect that the heirs of Jeptha Fowlkes were the owners of this land, and that the bank had no title or interest in it. One of the statutes of the state of Arkansas required those in whose favor such a decree was rendered to register it in the recorder's office of the coun- ty in which the lands it affected were situated within one year after its rendition, and provided that, "if such decree be not recorded within such time, it shall be void as to all subsequent purchasers without no- tice." Gould's Digest of the Laws of Arkansas, p. 637, § 35. This, decree was not recorded until November 4, 1884. Meanwhile, and in the year 1883, W. L. Culbertson, the agent and associate of C. O. Boynton, without any notice of this decree, pur- chased the lands in controversy in this suit from the Citizens' Bank of Louisiana, paid that bank $13,000 therefor, and took and recorded a quitclaim deed from it to himself of "all and singular its right, title, interest, and claim of whatever nature, legal and equitable in and to all the lands, lots, and parcels of land and any and all interests in the same belonging to and owned by said Citizens' Bank of Louisiana, in the state of Arkansas, at the date of this conveyance (except its lands and interest in Chicot county in said state) ; the said lands and interests therein conveyed being situated and lying within the counties of Clay, Crittenden, Craighead, Cross, Greene, Mississippi, Poinsett, and Wood- ruff, in the said state of Arkansas ; and this conveyance to operate and be as absolute, full and complete as if the said lands and interests afore- said were herein specifically described." Before making this purchase, Culbertson procured a list of these lands, and an abstract of the re- Gorded title to them, from which it appeared that the bank had a per- fect record title to them, subject only to a tax title, which Culbertson bought at the same time that he purchased the lands from the bank. He secured his deed from the bank on September 26, 1883, and re- corded it on October 26, 1883. C. O. Boynton, his principal, furnished the money to make this purchase, and on October 23, 1883, Culbertson conveyed the lands in controversy in this suit to Boynton by means of a warranty deed which describes them by government subdivisions, and this deed was recorded on October 29, 1883. Culbertson appears to have been interested with Boynton in the purchase of the lands, but Ch. 8) PRIORITIES 889 what his interest was does not appear. The title of the complainants rests upon the purchase from the bank and the conveyance to Boynton while he was ignorant of the existence of the decree. The defendants have succeeded to the title of the heirs of Fowlkes under their decree against the bank of May 3, 1880, and the question is whether that title or that of the devisees of Boynton should prevail. Counsel for the defendants argue that the deed from the bank to Culbertson conveyed only the lands which the bank owned at the date of the deed, and that, as the title to the lands here in question had been devested from the bank before the deed to Culbertson was made by the decree of May 3, 1880, and as the bank did not in fact own any right, title, or interest in the lands when it made this deed, the deed conveyed nothing, and the purchasers took nothing thereby. In support of this contention they cite Brown v. Jackson, 3 Wheat. 449, 4 L. Ed. 432. That was the first of a long line of decisions rendered by the Supreme Court in which it held that the grantee in a quitclaim deed could not become a bona fide purchaser under the registry statutes because the prior deed had conveyed all that the grantor had, and the form of the quitclaim deed was notice of that fact to its grantee. Oliver v. Piatt, 3 How. 333, 11 L. Ed. 622; Van Rensselaer v. Kearney, 11 How. 297, 13 L. Ed. '703; May v. Le Claire, 11 Wall. 217, 20 L. Ed. 50; Villa v. Rodriguez, 12 Wall. 323, 20 L. Ed. 406; Dickerson v. Colgrove, 100 U. S. 578, 25 L. Ed. 618; Baker v. Humphrey, 101 U. S. 494, 25 L. Ed. 1065 ; Hanrick v. Patrick, 119 U. S. 156, 7 Sup. Ct. 147, 30 L. Ed. 396. Counsel for the interveners cite the cases of Adams v. Cuddy, 13 Pick. (Mass.) 460, 25 Am. Dec. 330; Jamaica Corporation v. Chandler, 9 Allen (Mass.) 159, 169; Chaffin v. Chaffin, 4 Gray (Mass.) 280; Fitz- gerald V. Libby, 142 Mass. 235, 7 N. E. 917; and Eaton v. Trowbridge, 38 Mich. 454, in support of the position of the defendants. But these decisions fail to give any adequate effect or force to the estoppel of the registry statutes, and are in accord with the early holdings of the Supreme Court regarding the effect of a quitclaim deed. The riper experience and more thoughtful consideration of later years have ex- ploded the fallacy upon which the earlier decisions of tlie Supreme Court rested, and have led the court to adopt the rule which has now become firmly established both upon reason and authority that the inno- cent purchaser under a quitclaim deed may acquire the title under the registry statutes as against the holder of a prior unrecorded deed from the same grantor not^^^ithstanding the fact that the latter had no title, and had nothing to convey when he executed his second deed. Moetle V. Sherwood, 148 U. S. 21, 29, 30, 13 Sup. Ct. 426, 37 L. Ed. 350; United States v. California, etc., Land Co., 148 U. S. 31, 47, 48, 13 Sup. Ct. 458, 37 L. Ed. 354; Prentice v. Duluth Forwarding Co., 58 Fed. 437, 447, 7 C. C. A. 293, 303 ; Memphis Land & Timber Co. v. Ford, 58 Fed. 452, 7 C. C. A. 304. 890 DERIVATIVE TITLES (Part 2 No reason is perceived why the case at bar should not be governed by this just and sakitary rule. Registry statutes are legislative exten- sions of the doctrine of estoppel. They forbid those who have, and yet withhold from the record, their muniments of title, from asserting the title those muniments disclose against others who have innocently purchased the land from him who appears by the record to be the owner while the holders of the real title silently conceal it. They rest upon and enforce the equitable proposition tliat he who knowingly conceals his ownership when he ought to disclose it shall not assert it to the detriment of his neighbor who has acted in reliance upon his silence. When Culbertson purchased these lands, the record disclosed a perfect •title to them in the bank. That record was evidence of title both in the courts of the land and in the ordinary commercial transactions of men. Gould's Digest, p. 268, § 26. The agent of the vendor, the bank, fur- nished to the purchaser a list of these lands, and offered to sell them to him for his principal. Culbertson took the list, procured an abstract of the record title to the lands it described, and bought them in reliance upon the representation which the record and the silence and inaction of the grantors of the defendants exhibited. The defendants, or those under whom they claim, in violation of the statute, which required them to record the decree of May 3, 1880, which had devested the title of the bank, silently withheld it from the record, and thereby induced, or at least permitted, Culbertson and Boynton to buy from one who had no actual title. May they now be allowed to avail themselves of tliat decree, to deprive these vendees of the land, and to entail upon them the loss of their purchase money? The question is answered by the salutary statute of Arkansas. It de- clares that, if such a decree is not recorded within one year after its rendition, "it shall be void as. to all subsequent purchasers without no- tice." The evidence is satisfactory — nay, it is conclusive — that Cul- bertson and Boynton were subsequent purchasers of these lands with- out notice of this decree, and they fall far within both the reason and the* terms of the statute whose protection they invoke. It is true, as counsel insist, that, in the absence of the estoppel of the registry statutes, a conveyance of what one owns carries nothing which he does not own, and that under tliat rule the deed to Culbertson conveyed nothing, because the bank had nothing when it was made. But the question here is not what the bank owned when that deed was made. It is not what the bank could convey. It is what the bank ap- peared to own by tlie authorized records of the counties in which these lands were situated. The statute and the negligence of the defendants, or of their grantors, estop them from proving, or from successfully claiming, that the title to these lands was other than that which they permitted it to appear to be upon these records when Culbertson and Boynton bought. The contention that the grantor had nothing when this deed was made, and hence that the purchasers acquired nothing by it, proves too much. It applies with equal cogency to the purchaser Ch. 8) PRIORITIES 891 under every deed subsequent to a prior unrecorded conveyance, and its adoption would annul every statute of registration, for it may be said with equal truth of every such subsequent conveyance that the grantor has nothing when he makes it, and tlierefcre the subsequent purchaser can take nothing. The argument is fallacious, because it utterly ignores the purpose, the policy, and the effect of the statutes of registration. It is the pur- pose and the legal effect of these statutes to make the title that ap- pears of record — the record title — superior in tlie hands of an inno- cent purchaser for value to the real title that is withheld from regis- tration. Hence, while one who has parted with his title to land by an unrecorded deed or decree has no title or interest remaining in himself, yet his deed to an innocent purchaser for value, by virtue of the regis- try statutes, avoids the effect of the prior unrecorded deed or decree, and vests the title to the land in the subsequent purchaser to the same extent as it would have done if the title of record had been the real title. The holders of unrecorded instruments are estopped by the stat- ute and their negligence from denying that tlie record title is the real title. Memphis Land & Timber Co. v. Ford, 58 Fed. 452, 455, 456, 7 C. C. A. 304, 307, 308. The defendants cannot be heard to say, as against Culbertson, Boynton, and their successors in interest, that the Citizens' Bank of Louisiana was not the owner of the lands which it appeared by the records of the counties to be the owner of when Cul- bertson and Boynton made their purchase. There is another reason why the title of the complainants must pre- vail. Boynton was not only an innocent purchaser of these lands, but he secured them in October, 1883, by means of a warranty deed from Culbertson, which properly described and conveyed them to him by government subdivisions. If Culbertson could not have claimed the benefit of the estoppel of the registry statute because the deed to him did not specifically describe the lands, Boynton was under no such disability. Even in those courts 'in which the rule once prevailed that one who takes under a quitclaim deed cannot be a bona fide purchaser, that rule was sometimes limited to the grantee in such a deed. It did not apply to those who succeeded to the title of such a grantee by deeds of bargain and sale or by warranty deeds, and this was a reasonable limitation. Snowden v. Tyler, 21 Neb. 199, 31 N. W. 661 ; United States V. California, etc.. Land Co., 148 U. S. 31, 47, 13 Sup. Ct. 458, ?i7 L. Ed. 354. The form of the deed to Culbertson, his grantor, did not charge Boynton with notice of the unrecorded decree against the bank, or of any other defect in its title, even if it could have charged Culbertson. A subsequent purchaser of lands properly described in a warranty deed to himself is not charged with notice of unrecorded con- veyances or decrees by the fact that somie prior deed in the chain o.^ title is a quitclaim deed, or conveys only the lands which the grantor then owned, or of which some apparent owner died seised; or which some bankrupt owned at the time of his adjudication, but he may safely 892 DERIVATIVE TITLES (Part 2 rely upon the presumption that the record title Is the real title. Mem- phis Land & Timber Co. v. Ford, 58 Fed. 452, 455, 456, 7 C. C. A. 304, 307, 308; United States v. California, etc.. Land Co., 148 U. S. 31, 46, 47, 13 Sup. Ct. 458, Z7 L. Ed. 354; Kennedy v. Northup, 15 111. 148, 157; Bowen v. Prout, 52 111. 354, 357; Youngblood v. Vastine, 46 Mo. 239, 242, 2 Am. Rep. 509; Powers v. McFerran, 2 Serg. & R. (Pa.) 44, 47; Earle v. Fiske, 103 Mass. 491, 494.29 MOORE v. BENNETT. (Court of Chancery, 1678. 2 Ch. 246.) A. makes a conveyance to B. with power of revocation by will, and limits other uses if A. dispose to a purchaser by the will : another purchaser subsequent is intended to have notice of the will as well as of the power to revoke, and this is in law a notice ; and so it is in all cases where the purchaser cannot make out a title but by a deed, which leads him to another fact, the purchaser shall not be a purchaser without notice of that fact, but shall be presumed cognisant thereof; for it is crassa negligentia, that he sought not after it. 29 The balance of the opinion, relating to other matters, is omitted. In Fitzgerald v. I.ibby, 142 Mass. 2,3.5, 7 N. E. 917 (1SS6), there was a mort- gage of land descTibed as "the land by me owned" in a certain designated local- ity, "for boundaries and description reference is made to deeds to me, recorded in said registry." In fact the mortgagor had already conveyed a portion of the lands covered by the above description, but the deed had not been recorded at the time the mortgage was given and recorded, and the mortgagee had no knowledge of such deed. Held, that such previously conveyed portion did not pass by the mortgage, under the recording act. But compare Dow v. Whitney. 147 Mass. 1, 16 X. E. 722 (ISSS), where the conveyance was of "all my interest" in a specilically described tract of land, "except such portions thereof as I have heretofore sold." The question was whether such deed placed the grantee therein in position to give a clear title as against possible prior unrecorded deeds. The court said : "A deed of 'all the right, title, and interest,' or of 'all the interest,' of the grantor in a lot of land, conveys the same title as a deed of the land. It is the policy of our laws that a purchaser of land, by examin- ing the registry of deeds, may ascertain the title of his gi'antor. If there is no recorded deed, he has the right to assume that the record title is the true title. The law has established the rule, for the protection of creditors and pur- chasers, that an unrecorded deed, if unlvnown to them, is as to them a mere nullity. The reasons lor the rule apply with equal force in the case of a deed of the grantor's right, title, and interest, as in that of a deed of tlie land. We are of opinion, therefore, that the deed of Stephen Dow conveyed to his grantee a title which is good against any prior deed, if unrecorded. To hold otherwise would defeat the purpose of the registration laws, and create confusion in the titles to land." Ch. 8) PRIORITIES 893 BAKER V. MATHER. (Supreme Court of Michigan, 1872. 25 Mich. 51.) Appeals in Chancery from Ionia Circuit. Estiier E. Baker filed her bill against Amos R. Mather, Dennis H. Burns, Horace Roatch, and Henry W. King to foreclose a mortgage made to her by Mather and Burns, dated January 21, 1864, but which was not recorded until March 3, 1869. Roatch and King were made defendants as subsequent purchasers or incumbrancers. King alone an- swered, and the bill was taken as confessed by the other defendants., Subsequently Henry W. King filed his bill against Horace Roatch, Car- oline E. Roatch, Esther E. Baker, and Dennis H. Burns to foreclose a mortgage made to him by said Roatch and wife, dated February 16, 1869, and recorded March 1, 1869. Baker and Burns were made de- fendants as subsequent purchasers or incumbrancers. Baker alone an- swered, and the bill was taken as confessed by the other defendants. These two mortgages covered the same premises, and the question involved was, which should take precedence. The two cases were heard together, and the same proofs used on the hearing of both. From tlie proofs it appeared that the Baker mortgage was a purchase-price mort- gage, given on the sale of the premises by Esther E. Baker to Burns and Mather ; that said Burns and his wife subsequently conveyed their interest in the premises, subject to said mortgage, to said Mather, who afterwards conveyed the same, subject to said mortgage (which was expressly referred to in, and excepted from, the covenant of warranty in the conveyance), to Roatch ; and that the latter, with his wife, after- wards executed the King mortgage. On the hearing. King's bill was dismissed as to Esther E. Baker; and decree was entered in tlie suit brought by the latter, declaring her mortgage a prior lien on the prem- ises to the King mortgage. King brings both causes to this court by appeal, where the two are heard together. Per Curiam, The question in these cases is one of priority between two mortgages. The second mortgage was recorded first, and there is no evidence that the mortgagee therein had actual notice of the ex- istence of the prior mortgage when he took his. It appears, however, that the deed, under which the mortgagor held the land, expressly re- ferred to this prior mortgage, and made his title subject to it. The deed was not recorded, but this is an immaterial circumstance. Every- body taking a conveyance of, or a lien upon, land, takes it with con- structive notice of whatever appears in the conveyances which con- stitute his chain of title. Decrees below affirmed.^" SOT. sold and conveyed land to D., the deed containing the following: "The party of the first part (tlie vendor), for and in consideration of the sum of JJiTOO, to be paid on or before the lirst day of July, 1872, by the party of the second part." D. took possession, and, in 1874, without having paid T. in full, conveyed the premises to H., wlao subsequently sold to M. H. and M. had no S94 DERIVATIVE TITLES (Part 2 PATMAN V. HARLAND. (Chancery Division, ISSl. 17 Ch. D. 353.) Motion. By an indenture dated the 25tli of October, 1876, the plaintiff con- veyed to one Herve two freehold plots of land, being parts of a build- ing estate at Wimbledon, subject, nevertheless, to the restrictions and obligations as to building and other matters contained in an indenture of mutual covenants, also dated the 25th of October, 1876, executed by the plaintiff and Herve, and the purchasers of other building plots, part of the same estate. One of the covenants contained in the latter deed provided that on the several plots private dwelling-houses only should be erected. By an indenture dated the 18th of July, 1878, Herve conveyed the same two plots of land to the defendant Harland, subject to the same restrictions and obligations as to building by reference to the deed of mutual covenants, as were contained in the conveyance to Herve. The defendant Harland having erected a dwelling-house on the prop- erty, by an indenture dated the 29th of March, 1881, demised it to the defendant Louisa Bennett for the term of seven years, for the purposes of an "Art College," and the lease contained a proviso that the defendant Bennett, her executors, administrators, or assigns, should be at liberty to erect in the garden belonging to the premises a studio, with necessary rooms connected therewith, of corrugated iron on a brick foundation, and a covenant by the lessee not to carry on any trade, business, or employment, on the premises, without the consent in writing of the lessor, but to use the premises as a private dwelling- house only, with a proviso, however, that the user of the premises for the purpose of a school for instruction in art or otherwise should not be deemed a breach of any covenant in the lease. Neither the defendant Bennett nor her solicitor was informed or was aware before the execution of the lease, nor till shortly before tlie is- suing of the writ in the action, that there was any restrictive covenant affecting the land, and she had proceeded to erect the studio which was nearly completed. This was a motion for an injunction to restrain the defendants from erecting, or continuing to erect, or permitting any building or build- ings, other than private dwelling-houses, to remain on the land, and in particular, the building then in the course of erection. Jessel, M. R. I must say that on the point of laAV I have a very clear opinion, and not the less so because there are dicta in the books which at first sight appear to lead to a different conclusion. I say actual knowlodse of any claim against the land by T. In an action by T. to siil).j('ct the land to the payment of the unpaid purchase price, H. and M. claim- ed to be protected as purchasers without notice. Deason v. Taylor, 53 MisSr (;97 (1876). Ch. 8) PRIORITIES 895 at first sight, because, when carefully examined, they do not bear out the argument which has been supposed to be fortified by, them. The first question I have to consider is the notice which a man who takes a lease has of his lessor's title. It has been settled for more than a century that he has constructive notice of his lessor's title. Lord Eldon treated it as settled law. That means this, that the man \y\^ takes a lease is in a similar position as regards constructive notice as a man who buys. There could not be any reason for any distinction between purchasing a fee simple and taking a lease for 10,000 years. If a man who purchases a fee simple is bound to look into tlie title in a regular way, so is a man who takes a lease for 10,000 years, or 1,000 years, or for 100 years, or any lease at all, bound to make rea- sonable inquiry into his lessor's title. Well, what is reasonable in- quiry ? It has been held that he is to require the usual title, whatever the usual title may be. In this case the lessor's title began in 1878, and if the lessee had only asked to see the conveyance to the lessor, tliat is without going back 40 years, she would have found that it was subject to this restric- tive covenant, because the grantor in 1878 took care to convey the land, subject to the covenants, though the covenants themselves were in a separate deed. Now it is not to be supposed that I am going to restrict the doctrine to looking at the actual conveyance — not at all — because that would be to destroy it altogether. If the lessor had a conveyance made to him the day before that would not do, the lessee must ask for the convey- ance to him and a fair and reasonable deduction of title. In this case, as I said before, tlie actual conveyance refers to this covenant, but if it had not shewn it, I should have come to the same conclusion, as the conveyance of 1876 referred to it, and that must have appeared on any investigation of title. The result, tlierefore, is, the lessee had constructive notice. Now it has been argued that if the lessee, having this constructive notice, was told by the lessor that there was no restrictive covenant, that repre- sentation would in equity do away with the effect of constructive no- tice. I entirely dissent from that proposition. Constructive notice of a deed is constructive notice of its contents, subject to what I am go- ing to say presently. If, therefore, you have notice of a deed relat- ing to the title, and forming a part of the chain of title, you have no- tice of the contents of that deed, and it is no excuse for not asking to look at it to say you were told that the deed contained nothing which it was necessary for you to look at, otherwise in every case you might be satisfied with a statement of the contents of a deed without going to look at it. Of course there may be cases where the deed cannot be got at, or, for some other reason, where, with the exercise of all the prudence in the world, you cannot see it, and then there may be no constructive notice affecting tlie title, but that is another question. Where you know of a deed it is no answer to be told that it does not 896 DERIVATIVE TITLES (Part 2 prejudicially affect the title, as if it does affect the title you are bound by its contents. There is a class of cases, of which I think Jones v. Smith, 1 Hare, 43, 1 Ph. 244, is tlie most notorious, where the purchaser was told of a deed which might or might not affect the title, and was told at the same time that it did not affect the title. Supposing you are buying land of a married man, as in Jones v. Smith, 1 Hare, 43, 1 Ph. 244, and you are told at the same time that there is a marriage settlement, but the deed does not affect the land in question, you have no con- structive notice of its contents, because although you know there is a settlement you are told it does not affect the land. If every mar- riage settlement necessarily affected all a man's land then you would have constructive notice, but as a settlement may not relate to his land at all, or only to some other portions of it, the mere fact of your having heard of a settlement does not give you constructive notice of its contents, if you are told at the same time it dtDcs not affect the land. I take it, under the modern practice, you are not bound to in- quire, because the abstract furnished you is an abstract of every docu- ment affecting the land, and although you have been told that tlie man made a marriage settlement, you are not entitled to assume that the solicitor suppressed improperly the deed of settlement. I take it, if you asked for it, he might say, "it has nothing to do with you." But that line of cases has no bearing at all on a case where you know the deed does affect the land, and the question as to the extent to which it does affect the land is to be ascertained only by looking at the deed itself. Therefore you have no right to rely on the statement of some- body else that the deed which you can look at does not contain some- thing which it does in fact contain. I have said so much on this point because there is no doubt an ob- servation which was let fall by Lord Justice Turner in Wilson v. Hart, Law Rep. 1 Ch. 463, and which does to some extent countenance the contrary doctrine ; but as regards the case of Carter v. Williams, Law Rep. 9 Eq. 678, before the Vice-Chancellor James, that, as I read it, entirely confirms my view. It is not fair to criticize the words used by the Vice-Chancellor, but when you look at the argument addressed to him you see the objection there was that the covenant was contained in a collateral deed, which was not recited. In Coles v. Sims, 5 D. M. & G. 1, cited in Carter v. Williams, the restrictive covenant was recited in the conveyance. The Vice-Chancellor in Carter v. Williams, Law Rep. 9 Eq. 678, says that the covenant is contained in a separate deed, but what he means is this, that the deed is not noticed either by way of recital or by being referred to in the deed of conveyance, so that a person might get a complete chain of title without any notice of that deed. That is what he means, and that being so, of course if the tenant had asked for his lessor's title, and got it, he would not necessarily have got that information. The solicitor ought no doubt to have put it in the abstract if he knew of it, but he would not neces- Ch. 8) PRIORITIES 897 sarily know of it. Then the Vice-Chancellor came to the conclusion that there being no evidence of anything to bring home to the tenant actual knowledge or notice of the restrictive covenant he could not hold he had constructive notice of it. Therefore, it appears to me, that case rather follows out the doctrine of Jones v. Smith, 1 Hare, 43, 1 Ph. 244, and by no means affects the other cases cited where the document in question affecting the title is recited or otherwise noticed in the title-deeds. In Carter v. Williams, any one could have accepted the title without being aware of the document containing the cove- nant. I am therefore of opinion that the constructive notice which the lessee in this case obtained, would not have been done away with by the most express statement obtained from the lessor that there was no restrictive covenant. I must say that I am not satisfied in this case that there was any such representation. What appears to have oc- curred was this, the lessor did not of course shew his title, but he was aware that the lessee intended to use this property in the way she at- tempts to use it, and there was a proviso which excepted such user from the covenant in the lease, and consequently a person reading that lease would have assumed, and fairly assumed, that she had a right to use it in the way mentioned in the exception from the cove- nant. In that way there was a representation — an indirect representa- tion — and there were in addition to that some further words in the lease which tended in the same direction. Therefore I think there was sufficient to put the lessee off her guard, if I may say so, if it were not that she had constructive notice, the effect of which no representation could have destroyed. I wish to notice one other point ; it is said that the new law as to the extent of title to be required by purchasers alters the rule. I think it does not: what the Vendor and Purchaser Act does is this, in order that a lessee may obtain his lessor's title, it makes an express stipulation to that effect necessary, whereas formerly the rule was the other way, that without express stipulation the lessee had a right to the title. Formerly, if the lessee had expressly stipulated not to look into his lessor's title, it would not have affected the constructive notice. This is the meaning of the doctrine; you may bargain to shut your eyes, but if you do wilfully shut your eyes, whether as a bar- gain or not, you must be liable to the consequences of shutting your eyes. If, therefore, the lessee had formerly expressly bargained to take a lease without looking into the lessor's title, the lessee would have been bound by constructive notice, and now if the lessee says nothing it is exactly the same as if formerly he had bargained ex- pressly not to look into the lessor's title. Therefore, as he may re- fuse to take a lease without looking into the title (in some cases, es- pecially in case of building leases, lessees do look into the title, in otlier cases they do not), it appears to me that the law is uxialtered. Aig.Pbop. — 57 898 DERIVATIVE TITLES (Part 2 and tfiat the doctrine of Tulk v. Moxhay, 2 Ph. 774, and that Hne of cases applies. Then the lessee being bound by the covenant, the only remaining question is, What is the covenant, and has there been a breach of it? The covenant is not well worded, and will not perhaps carry out the full intention of the covenantee, but it is a covenant that they "shall erect private dwelling-houses only" on the piece of land. The lessee is building something which it would be rather absurd for any one to describe as a private dwelling-house, and I am glad to see that nobody does so describe it ; it is described in the affidavit as a corrugated iron building, not in any way connected with the dwelling-house, or so sit- uated at present as possibly to be used for a private dwelling-house. The lessee says it has been built as an addition to the house which is intended to be used as an art studio for ladies. There is no ques- tion that it has been erected for that purpose, and not for a private dwelling-house. It has been argued that this building, being within the same curtilage as the house, must be treated as appurtenant to the dwelling-house, and forming part of it, in the same way as a bil- liard-room or smoking-room might be. But this is a thing of a totally different character. It could not be suggested that having built a private dwelling-house with a garden, if you then built a church or chapel at the other end of the garden, that church or chapel would be treated as a portion of the private dwelling-house, merely because it happened to be within the same curtilage — it would be a separate erection and not a private dwelling-house. It is in my opinion a clear breach of the covenant, and so I shall Vestrain the further proceed- ing with its construction, which is all I think it right to order now, though if it is not taken away altogether before the trial of the action I may order it to be taken away then. The lessee has, I think, a right to convert the building if she can into a fair and reasonable adjunct to the private dwelling-house; that is the reason I do not now grant the mandatory injunction asked for. I shall not grant any injunction against the defendant Harland. and his costs and the costs of ail otlier parties will be costs in the action. GALLEY V. WARD. (Supreme Court of New Hampshii-e, ISSO. CO N. II. 3.31.) Bill in equity, to set aside the levy of an execution. Facts found by a referee. May 13, 1871, Jane Smith, wife of Robert Smith, be- ing seized in her own right of a tract of land called the "Little Lot," sold it to the plaintiff for $800, and intended and believed that she did then convey it in fee simple "to him. But the deed, by mistake of the scrivener, was executed by her husband, in which she merely released dower and homestead. This was not recorded till November 12, 1875. September 18, 1878, Jane and Robert executed and delivered to the Ch. 8) PRIORITIES 899 plaintiff a deed of the lot, for the purpose of ratifying and confirming the latter's title, and of fulfilling all that they supposed they did do by their former deed. The plaintiff entered into possession of the lot upon receiving the first deed, and has remained in the open, visible, exclusive, and notorious possession of it ever since, cultivating the land, cutting the grass, pasturing his cattle therein, cutting off the wood, rebuilding the walls and fences, and tearing down the buildings, which were old and dilapidated, and from the best of the timber erect- ing a coopers' shop. The defendant Ward, in 1876, without any consideration, assigned to the defendant Morris a claim against Jane Smith; Morris, in April, 1876, brought suit on this claim, and obtained an execution, which was levied on the "Little Lot." Before bringing the suit, Morris made inquiries at the registry of deeds to ascertain if Jane Smith had con- veyed this lot, and was informed that she had not. The deed of May 13, 1871, was indexed "Smith Robert to Galley William." Before the attachment, Morris had no knowledge or suspicion that Jane had sold the lot, and it did not appear when he first learned of it. Ward and Morris both live in Boston, Mass. Foster, J. At the time of Morris's attachment and levy, the plain- tiff held the equitable title to the "Little lot" by virtue of the agree- ment made with Jane Smith in 1871, under which he had paid the full consideration for the property, and had entered into its occupation. He was entitled to a decree for a specific performance of this agree- ment, and to such a conveyance as he received September 18, 1878. 2 Story, Eq. § 761; Scoby v. Blanchard, 3 N. H. 170, 177; Hadduck v. Wilmarth, 5 N. H. 181, 189, 20 Am. Dec. 570; Chartier v. Mar- shall, 51 N. H. 400; Newton v. Swazey, 8 N. H. 9; Cutting v. Pike, 21 N. H. 347; Kidder v. Barr, 35 N. H. 235, 254; Doe v. Doe, Z7 N. .H. 268 ; Ewins v. Gordon, 49 N. H. 444. It is not claimed that Morris had any actual knowledge of the plain- tiff's title. He merely knew as a fact that the legal title appeared by the record to be in Jane Smith. And if the plaintift''s title is to prevail in this suit, it must be on the ground of constructive notice. It is substantially admitted in the brief for Morris, and is undoubtedly the law in this state, that a purchaser of land, knowing that a third person is in the open, visible, and notorious occupation of it, — an oc- cupation inconsistent with the idea that he is a tenant, — is chargeable with notice of such facts in reference to the latter's title, whether legal or equitable, as he would have learned upon reasonable inquiry. Colby v. Kenniston, 4 N. H. 262; Hadduck v. Wilmarth, 5 N. H. 181, 20 Am. Dec. 570; Warren v. Swett, 31 N. H. 332; Patten v. Moore, 32 N. H. 383 ; Jones v. Smith, 1 Hare, 43 ; Tardy v. Morgan. 3 McLean, 358, Fed. Cas. No. 13,752; Landes v. Brant, 10 How. 348. 375, 13 L. Ed. 449; Ferrin v. Errol, 59 N. H. 234; Cooper v. New- man, 45 N. H. 339 ; Nute v. Nute, 41 N. H. 60; Braman v. Wilkinson, 3 Barb. (N. Y.) 151; Bank v. Flagg, 3 Barb. Ch. (N. Y.) 316; Doo- 900 DERIVATIVE TITLES (Part 2 little V. Cook, 75 111. 354; Losey v. Simpson, 11 N. J. Eq. 246; Big. Fr. 288 ; 1 Story, Eq. § 399, note 4 ; Hill. Vend. 408 ; Jones, Mort. 600. And the nature of the plaintiff's possession in this case was sufficient to put a purchaser having knowledge of the facts on inquiry as to the plaintiff's title. But it is contended that Morris did not know of the plaintiff's pos- session of the land, and that therefore the doctrine of constructive notice cannot be applied to him. If he had known it, on tlie author-* ities above cited he could have gained no title against the plaintiff by his attachment and levy. Is his ignorance sufficient excuse ? When a grantee records his deed, a subsequent purchaser is chargeable with constructive notice of its contents. It is wholly immaterial whether he has seen the deed, or has any knowledge of its existence. It h, as sometimes expressed, a conclusive presumption of law that he had notice of the grantee's deed. Malone, Real Prop. Trials, 427; Mor- rison V. Kelly, 22 111. 610, 74 Am. Dec. 169. On the same ground it is at least a prima facie presumption, that when there is such a posses- sion by a third party as would charge a purchaser who knew of that possession with knowledge of an adverse title, a purchaser ignorant of that possession without excuse would be equally chargeable. And this doctrine, in both cases, rests on the ground of fraud or culpable negligence. As it is a part of a purchaser's duty to examine the rec- ord, to inform himself as to the legal title he expects to acquire, a failure to attend to that duty would amount to negligence on his part, and would be a fraud on a previous purchaser under a recorded deed, if he could, by proving his ignorance, acquire a title. By the same mode of reasoning, if he is wilfully ignorant of such facts of notorious occupation by a stranger as would put a purchaser cognizant of those facts on his guard against some unrecorded deed or equitable claim, his want of knowledge is due to his own laches and failure to attend to an apparent duty. In Hughes v. U. S., 4 Wall. 232, 18 L. Ed. 303, Field, J., says that if a purchaser neglects to make inquiry as to the possession, "he is not entitled to any greater consideration than if he had made it and ascertained the actual facts of the case." See, also, Edwards v. Thompson, 71 N. C. 177; McKinzie v. Perrill, 15 Ohio St. 162; Bailey v. Richardson, 9 Hare, 734; Gooding v. Riley, 50 N. H. 400, 403^05 ; Strong v. Shea, 83 111. 575 ; Hommel v. Devinney, 39 Mich. 522; Patton v. Hollidaysburg, 40 Pa. 206; Perkins v. Swank, 43 Miss. 349. Nor is there any distinction in this respect be- tween a purchaser and a creditor. A creditor is bound by constructive notice of the contents of a recorded deed, as well as a purchaser, and there seems to be no reason why they should not both stand on the same ground with reference to an equitable title in a third party, in a case like the present. Priest v. Rice, 1 Pick. (Mass.) 164, 11 Am. Dec. 156; Flynt v. Arnold, 2 Mete. (Mass.) 619; Farnsworth v. Childs, 4 Mass. 637, 3 Am. Dec. 249 ; Scripture v. Soapstone Co., 50 N. H. 571. Gh. 8) PRIORITIES , 901 The defendant Morris had no knowledge that the plaintiff was in possession of the land in question, but, so far as the plaintiff or any- body else was concerned, he was at liberty to examine the apparent condition of the premises. He was not deceived by any misrepre- sentations or concealments of the plaintiff. He relied on his own judg- ment, and neglected an apparent duty. Like a purchaser having knowledge of facts sufficient to put him on his guard, he must be held chargeable with what he would have learned upon reasonable inquiry as to the plaintiff's right of possession. And it appears from the case that he would have learned of the plaintiff's equitable title. His title therefore cannot prevail in this suit. It is unnecessary, in the view we have taken of the case, to con- sider the further question, whether the want of consideration for the assignment of the claim to Morris by Ward would prevent the for- mer from acquiring a title against the plaintiff. Decree according to the prayer of the bill.^^ 31 The owner of lands conveyed same to A., B., and C, the deed being duly recorded. A. took possession, and shortly thereafter acquired deeds from B. and C. conveying their interests to him. These deeds were not recorded. B. and C. later made a deed of their undivided interests in the same premises to D., who paid value therefor with no knowledge of the unrecorded deeds to A. Should D. be charged with notice by reason of A.'s possession? See Dutton v. McReynoUls, 31 Minn. 66, 16 N. W. 468 (lS8:ii; Farmers' & Merchants' Nat. Bank v. Wallace, 45 Ohio, St. 152, 12 N. E. 439 (1SS7). Lands were conveyed to A., the deed being properly recorded. A. later con- veyed them to her husband, and that deed was not recorded. Still later, and while A. and husband were living upon the premises, A. conveyed to B., who paid value and had no knowledge of the conveyance from A. to her husband. Should B. be charged with notice of the husband's interest? See Westerfield V. Kimmer, 82 Ind. 365 (1882) ; Atwood v. Bearss, 47 Mich. 72, 10 N. W. 112 (1881). A., a married woman, having purchased certain lands, had a conveyance of same made to B. to hold on her behalf. B. later conveyed the premises to A., but the deed was never recorded. After the death of B., his heirs executed a deed of these premises to C, who paid value therefor without knowledge of the rights of A. Since the time of the first conveyance mentioned to B., A. and her husband have resided upon the premises. Should C. be charged with notice of A.'s rights? See Kirby v. Tallmadge. 160 l'. S. 371). 16 Sup. Ct. 349, 40 L. Ed. 463 (1S96). See, also, Phelan v. Brady, 119 N. Y. .587, 23 N. E. 1109, 8 L. R. A. 211 (1890) ; Boyer v. Chandler, 160 111. 394, 43 N. E. 803, 32 L. R. A. 113 (1896). AVhat would have been the situation if, instead of A. and her husband being in possession, a lessee of A. had been occupying the premises? See Hunt v. Luch, [1902] 1 Ch. 428 ; Randall v. Lingwall, 43 Or. 383, 73 Pae. 1 (1903). As to whether possession by a gi'antor in a recorded deed is notice of any rights held by him, see Bloomer v. Henderson, 8 Mich. .395. 77 Am. Dec. 453 (1860) ; Van Keuren v. Central R. Co., 38 N. J. Law, 165 (1875) ; Randall v. Lingwall, supra; Groff v. State Bank of Minneapoli.s, 50 Minn. 2.34, 52 N. W. 651, 36 Am. St. Rep. 640 (1892) ; Illinois Cent. R. Co. v. McCullough, 59 111. 166 (1871). 902 DERIVATIVE TITLES (Part 2 WILLIAMSON V. BROWN. (Court of Appeals of New York, 1857. 15 N. Y. 354.) The defendant, Brown, was the owner of fifty acres of land in Hannibal, Oswego county, which, on the 4th of April, 1851, he sold and conveyed to one Jackson Earl, taking back from Earl a mortgage for $800 of the purchase money, but omitting at that time to put his mortgage upon record. On the 29th of October, 1851, Earl conveyed the land to the plain- tiff by deed, which was duly recorded on the same day; and on the 28th of January, 1852, the mortgage from Earl to thfe defendant was put upon record. In May following the defendant commenced pro- ceedings for the foreclosure of the mortgage by advertisement. This suit was commenced to restrain the defendant from proceeding with this foreclosure, on the ground that the plaintiff was protected by the recording act against the defendant's prior but unrecorded mort- gage. The cause was tried before a referee, who reported that he found as matter of fact "that the plaintiff did not at the time he purchased the premises have actual notice of the existence of the mortgage mentioned in the pleadings, given by Jackson Earl to the defendant," but also found that he had "sufficient information, or belief of the existence of said mortgage to put him upon inquiry, before he pur- chased and received his conveyance of the premises in question ; and that he pursued such inquiry to the extent of his information and belief, as to the existence of the said mortgage, and did not find that such mortgage existed, or had been given." Upon these facts the referee held that the plaintiff was chargeable with notice of the mortgage, and dismissed the complaint, and the plaintiff excepted to the decision. Judgment was entered for the defendant upon the referee's report which, upon appeal to the general term of the fifth district, was affirmed. Selden, 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 information it became his duty to make, he failed to discover that any such mortgage existed. This being, as I think, what 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 while 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 under a recorded title with knowledge of Ch. 8) PRIORITIES 903 a prior unregistered conveyance. He cites several authorities in sup- port of this position. In the case of Dey v. Dunham, 2 Johns. Ch. 182, Chancellor Kent says, in regard to notice under the registry 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 decisions go that length." Again, in his commentaries, speaking on the same subject, he says : "Implied notice may be equally effectual with direct and pos- itive notice; but then it must not be that notice which is barely suffi- cient to put a party upon inquiry." So in Jackson v. Van Valkenburgh, 8 Cow. 260, Woodworth, J., says: "If these rules be apphed 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." A reference to some of the earlier decisions under the registry acts of England, will tend, I think, to explain these remarks, which were probably suggested by those decisions. One of the earliest, if not the first of the English recording acts was that of 7 Anne, ch. 20. That act differed from our general registry act in one important re- spect. It did not, in terms require that the party to be protected 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, &c., be made and executed, shall be adjudged fraudulent and void, against any subsequent purchaser or mortgagee for valuable consideration, un- less," &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 was palpable. Hine v. Dodd, 2 Atk. 275, was a case in which the com- plainant 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 proof must be extremely clear." Jolland V. Stainbridge, 3 Ves. 478, is another case in which 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 who 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." 904 DERIVATIVE TITLES (Part 2 Chancellor Kent refers to these cases in Dey v. 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 mas- ter 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 prior unregistered conveyance, it became necessarily a mere question 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 was a London brewer, and supplied Jordan, who was a publican, with beer. It was the common practice with brewers in London to lend money to publicans whom they supplied with 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 plaintiff, and of the existing custom between brewers and publicans, but he made no inquiry of tlie brewers. The suit was brought to enforce the equitable mortgage arising from the deposit. Baron Alderson held that the notice to Boulnois was suffi- cient 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 Dey v. Dunham and Jackson v. Van Valkenburgh, supra, hold substantially the same doctrine. Tuttle v. Jackson, 6 Wend. 213, 21 Am. Dec. 306; Jackson v. Post, 15 Wend. 588; Grimstone v. Carter, 3 Paige, 421, 24 Am. Dec. 230. I can see no foundation in reason for a distinction between the evi- dent 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 re- ferred 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 suffi- cient to put the purchaser upon inquiry is only presumptive evidence of actual notice, and may be repelled by showing that the party did in- quire 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 inquiry will necessarily lead to its discovery. Gh. 8) PRIORITIES 905 The counsel for the defendant cites several authorities in support of his position, and among others the cases of Tuttle v. Jackson and , Grimstone v. Carter, supra. In the first of these cases, Walworth, Chancellor, says : "If the subsequent purchaser knows of the unreg- istered conveyance, at the time of his purchase, he cannot protect him- self 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 such possessor, and is good constructive notice of those rights." It must be conceded that the language used by the learned Chan- cellor in these cases, if strictly accurate, would go to sustain the doc- trine contended for by the defendant's counsel. Notice is of two kinds : actual and constructive. 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. Con- structive notice, on the other hand, is a legal inference from established facts ; and like other legal presumptions, does not admit of dispute. "Constructive notice," says Judge Story, "is in its nature no more than evidence 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 im- plied 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 in- frequently applied to degrees of evidence barely sufficient to warrant a jury in inferring actual notice, and which the slightest opposing proof would repel, instead of being confined to those legal presump- tions of notice which no proof can overthrow. The use of these terms by the chancellor, therefore, in Tuttle v. Jackson and Grimstone 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 geem to imply that if the party is faithful in making inquiries, but fails to dis- cover 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 per- 90G DERIVATIVE TITLES (Part 2 forms that duty is he still to be bound, without any actual notice? The presumption of notice which arises from proof of that degree of knowl- edge which will put a party upon inquiry is, I apprehend, not a pre- sumption of law, but of fact, and may, therefore, be controverted by evidence. In Whitbread 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 mak- ing, such obvious inquiries, he must be taken to have notice of those facts, which, if he had used such ordinary diligence, he would readily have ascertained." This very plainly implies that proof that the party has used due diligence, but without effect, would repel the presump- tion. 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 nev- ertheless 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 was 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 relative, and that it could not be seen without giving offense 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 ex- hibition 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 knowledge enough to put the party upon inquiry; for he was apprised of the existence of the very docu- ment which was the foundation of the complainant's claim. He did inquire, however, and made every reasonable effort to see the settle- ment itself, but was baffled by the plausible pretences of David Smith. The vice-chancellor held the notice insufficient. He said : "The af- fairs of mankind cannot be carried on with ordinary security, if a doc- trine like that of constructive notice is to be refined upon until it is ex- tended 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 pos- session puts the purchaser upon inquiry, and makes it his duty to pur- sue his inquiries with diligence, but is not absolutely conclusive upon him. In Hanbury v. Litchfield, 2 Myl. & Keene, 629, when the ques- tion arose, the Master of the Rolls said : "It is true that when a tenant is in possession of the 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 deriva- Ch. 8) PRIORITIES 907 tive lease, and has no knowledge of the covenants contained in the orig- inal lease, it has never been considered that it was want of due dili- gence in the purchaser, 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 con- vey to him information of the covenants." This doctrine is confirmed by the language of Judge Story, in Flagg V. Mann et al., 2 Sumn. 554, Fed. Cas. No. 4,847. He says: "I admit that the rule in equity seems to be, that where a tenant or other person is 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 no- tice of the title of the party in possession." It is still further confirmed by the case of Rogers v. Jones, 8 N. H. 264. The language of Parker, J., in that case, is very emphatic. He says : "To say that he (the purchaser) was put upon inquiry, and that having made all due investigation, without obtaining 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 in- quiry 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 guilty 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 dis- cover 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 find- ing 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 informa- tion or belief of the existence of such mortgage to put him upon in- quiry, but that upon pursuing such inquiry to the extent of such in- formation and belief, he did not find that such mortgage existed or had been given. It seems to me that the two findings are inconsistent 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 defend- ant's mortgage, was unable to find that it either then existed or had been given, the highest evidence is furnished that the information re- ceived or belief entertained by the plaintiff' was not sufficient to put him on inquiry as to the. existence of such mortgage. The last part of this finding effectually disproves the fact previously found of the suffi- 908 DERIVATIVE TITLES (Part 2 ciency of notice to put the plaintiff on inquiry. The two facts are ut- terly inconsistent with each other, and cannot possibly coexist. The remarks of Parker, Justice, in Rogers v. Jones, 8 N. H. 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 obtaining any knowledge of title, he was still chargeable with notice of a deed, if one did really exist, would be absurd.'' The sound sense of these observa- tions is clearly shown by the principle of the rule that information sufficient to put a party upon inquiry is equivalent to evidence of ac- tual notice, or to direct and positive notice. That principle is, that such information will, if followed by an inquiry prosecuted with due dili- gence, 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 im- plied 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 con- clusion of law necessarily results that the information possessed by the party amounted to implied notice of such instrument. But if the de- termination 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 will be found to be fully sustained by authority. Kennedy v. Green, 3 Myl. & Keene, 699; 2 Sugden on Vendors, 552 (Am. Ed. of 1851, marg. page 1052); 4 Kent's Com. 172; Howard Ins. Co. V. Halsey, 4 Sandf. (6 Super. Ct.) 577, 5'78; same case, 4 Seld. 274, 275 ; 1 Story's Eq. Jur. §§ 398-400a ; Jackson v. Burgott, 10 Johns. 461, 6 Am. Dec. 349; Dunham v. Dey, 15 Johns. 568, 569, 8 Am. Dec. 282, in error; Jackson v. Given, 8 Johns. 137, 5 Am. Dec. 328; Jolland V. Stainbridge, 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 fo make the necessary inquiry to ac- quire such knowledge, will not excuse him, but he will be chargeable with a knowledge of its existence ; the rule being that a party in pos- session of certain information will be chargeable with a knowledge of all facts which an inquiry, suggested by such information, prosecuted with due diUgence, would have disclosed to him. 4 Sandf. (6 Super. Ct.) 578; 3 Myl. & Keene, 699. In this case the fact being found by the referee, that the plaintiff after pursuing an inquiry 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 affects the Ch. 8) PRIORITIES 909 conscience, and convicts the junior purchaser of a fraudulent intent to defeat the prior conveyance. His knowledge of facts and circum- stances at the time of the second purchase sufficient to enable him on due inquiry to discover the existence of the prior conveyance, is evi- dence from which a fraudulent intent may be inferred. 15 Johns. 569; 2 Johns. Ch. 190; Jackson v. Burgott, 10 Johns. 462, 6 Am. Dec. 349. Now if it is ascertained and found as a fact, that the facts and cir- cumstances within the knowledge of the second purchaser, at the time of his purchase, were insufficient to lead him, on a diligent examination, to a discovery of the prior conveyance, how upon this finding can a fraudulent intent be inferred, and if not, how can he be charged with notice, which implies a fraudulent 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 in- tent on the part of a junior purchaser or mortgagee, must in the ab- ■ sence of actual notice, be founded on clear and strong circumstances, and that such inference must be necessary and unquestionable. Mc- Mechan v-. Griffing, 3 Pick. (Mass.) 149, 154, 155, 15 Am. Dec. 198; Hine v. Dodd, 2 Atk. 275 ; Jackson v. Given, 8 Johns. 137, 5 Am. Dec. 328; Norcross v. Widgery, 2 Mass. 509; 2 Johns. Ch. 189; 15 Johns. ,569 ; 8 Cow. 264, 266. For the above reasons, both the judgment rendered on the repori. of the referee, and the judgment of the general term affirming the same, should be reversed, and a new trial should be granted. , NORDMAN V. RAU. (Supreme Court of Kansas, 1911. 86 Kuii. 19, 119 Pac. 351, 38 L. R. A. [N. S.] 400, Ann. Cas. 191oB, 1068.) Mason, J. Johanne Nordman brought an action to enforce her rights as to a tract of land under a mortgage given by Jacob Rau. S. A. Webb, a defendant, claimed to be the absolute owner of the land as an innocent purchaser without notice of the mortgage. Find- ings of fact were made to the effect that the mortgage was executed and in fact recorded in the office of the register of deeds of the county where the land was situated, but was never acknowledged; that while matters were in this situation a personal judgment was rendered against Rau, an execution was issued and levied on the land as his property, and it was sold to Webb at a sheriff's sale, which was duly confirmed, and under which a deed was subsequently made to him ; that the resident attorney who acted for Webb in bidding in the land at the sheriff's sale, knew of the existence and contents of the record of the unacknowledged mortgage. The trial court gave judgment for the owner of the mortgage, holding it to be valid as to Webb because his agent knew of the actual state of the record. Webb appeals. 910 DERIVATIVE TITLES (Part 2 The appellant argues that inasmuch as the attorney who bid in the land for Webb represented him only in that particular transaction and had no other connection with him, the knowledge of the agent was not equivalent to the knowledge of the principal. It fairly appears, however, that the attorney gained his knowledge of the state of the record after having been employed to attend the sale, and before bid- ding in the property, and that in this aspect of the matter the case falls within the rule that "a principal is * * * affected with knowledge of all material facts of which the agent receives notice or acquires knowledge while acting in the course of his employment." 31 Cyc. 1587. A purchaser at a sheriff's sale is entitled to the protection of the recording act. Lee v. Bermingham, 30 Kan. 312, 1 Pac. 73; note, 21 L. R. A. 35. It is therefore necessary to decide whether an unacknowledged mortgage, which has been copied into the record book of the register of deeds, is void against one who buys the property knowing the con- tents of the record, but is otherwise an innocent purchaser for value. An instrument affecting real estate is entitled to record only when it has been acknowledged or proved as provided by the statute. And where such an instrument is recorded without having been so acknowl- edged or proved, the record does not impart notice to anyone. Wick- ersham v. Chicago Zinc Co., 18 Kan. 481, 26 Am. Rep. 784; Wis- comb v. Cubberly, 51 Kan. 580, 589, 33 Pac. 320. The statute relat- ing to the effect of a failure to record instruments affecting real es- tate reads: "No such instrument in writing shall be valid, except be- tween the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record." Gen. St. 1868, c. 22, § 21, Gen. St. 1909. § 1672. The precise question involved is whether one who has seen and read in the records in the office of the register of deeds what is in fact a copy of an existing unacknowledged instrument is to be regarded as having "actual notice" of the instrument itself, within the meaning of the statute. In Massachusetts and in Indiana "actual notice" is inter- preted as equivalent to actual knowledge. Webb, Record of Tide, § 222, p. 356, note 3. But the general rule is that evidence of facts and circumstances sufficient to put upon inquiry amount to actual notice. Webb, Record of, Title, § 222, p. 356, note 4. "Actual notice does not mean that which in metaphysical strictness is actual in its nature, because it is seldom that ultimate facts can be communicated in a manner so direct and unequivocal as to exclude doubts as to their existence or authenticity. Actual notice means, among other things, knowledge of facts and circumstances so pertinent in character as to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts." Pope v. Nichols, 61 Kan. 230, 236, 59 Pac. 257, 259. "Actual notice may be either express or im- plied ; that is, it may consist of knowledge actually brought personally home, or it may consist of knowledge of facts so informing that a Ch. 8) PRIORITIES 911 reasonably cautious person would be Jed by them to the ultimate fact. * * * Actual notice is implied only when the known facts are sufficiently specific to impose the duty to investigate further, and when such facts furnish a natural clue to the ultimate fact." Faris v. Fin- nup, 84 Kan. 122, 124, 113 Pac. 407, 408. This court is of the opinion (not shared by the writer) that one who has seen the record of an unacknowledged instrument is not deemed because of that fact to have actual notice of the instrument itself, upon these grounds : To charge him with such notice is to require him to assume, without proof and without competent evidence, that a valid conveyance is in existence corresponding to the unauthorized copy. If he is required to give any attention to the matter at all he may with ecjual or greater reason suppose tlie parties to have aban- doned whatever intention they may have had to execute such a con- veyance, from the fact that they failed to have a certificate of acknowl- edgment attached. To charge him with actual notice of the existence of a conveyance because he has seen a copy of it which, without legal authority, has been written in a book of public records, is essentially to give such copy the force of a valid record. To hold that the record of an unacknowledged conveyance, if known to a prospective buyer, amounts to actual notice of the instrument, is to compel him to give it force as evidence which the court itself would refuse it. The view is thus elaborated in Kerns v. Swope (Pa. Sup. Ct. 1833) 2 Watts, 75 : "1 he registration being without the authority of the law, was the unofficial act of the officer, which could give the copy no greater va- lidity than the original deprived of legal evidence of execution ; nor even so much, for an original deed exhibited to a purchaser would affect him though it were unaccompanied with the evidence of its ex- ecution. But here the registry was no better than a copy made by a private person in a memorandum book ; from which a purchaser would be unable to determine whether there were, in fact, an indorsement on the deed, or whether it had been truly copied — especially when nei- ther the copy, nor an exemplification of it, would be legal evidence of the fact in a court of justice. Unquestionably a purchaser would not be afi'ected by having seen the copy of a conveyance among tlie papers of another, or an abstract of it in a private book. The whole effect of a registry, whether as evidence of the original or as raising a legal presumption that the copy thus made equivalent to the original had been actually inspected by the party to be affected, is derived from the positive provisions of the law; and when unsustained by these, a registry can have no operation whatever. Stripped of artificial eflfect, it is but the written declaration of the person who was the officer at the time, that he had seen a paper in the words of the copy which purported to be an original. But to say nothing in this place of the incompetency of such a declaration as evidence of the fact, on what principle would a purchaser be bound to attend to the hearsay informa- tion of one who is not qualified to give it?" 2 Watts (Pa.) 78. 912 DERIVATIVE TITLES (Part 2 The same view was indicated in Banister v. Fallis, 85 Kan. 320, 116 Pac. 822, where it was said of the record of an unacknowledged in- strument: "The instrument itself, if there were one, had no validity except between tlie parties and those having actual notice, not of what was on record, but of the instrument itself." 85 Kan. 322, 116 Pac. 823. The judgment is reversed and the cause remanded with directions to render judgment upon the findings quieting the title of Webb. Mason, J. (dissenting). My own view of the question presented is this : Wliere a prospective buyer of land sees upon the record what purports to be the copy of an instrument bearing no certificate of ac- knowledgment (or a defective one, for the rule would necessarily be the same), the inference which he would naturally and almost neces- sarily draw would be that tlie record was made at the instance of the grantee, and that the grantee claimed to have an interest in the land under an instrument in the language of the copy. The record would not be competent legal evidence that such an instrument had been executed, but it would suggest that probability so strongly that a pru- dent person having knowledge of it would be put upon inquiry. It would give him a definite and tangible clue, which, if diligently fol- lowed up, would ordinarily bring the truth of the matter to light. In the present case, if an inquiry had been prosecuted with reasonable diligence, the existence of the mortgage would necessarily have been developed. In Banister v. Fallis; 85 Kan. 320, 116 Pac. 822, the purchaser of land objected to the title because the record contained what purported to be a copy of a contract affecting it. The objection was held un- tenable because, the contract not having been acknowledged, the rec- ord was not evidence of its execution, and no other evidence on the subject was ofi^ered; and because the contract could not constitute a cloud in any event, inasmuch as it purported to be made by a stranger to tlie title. An additional reason was stated in the language quoted in the foregoing opinion: "The instrument itself, if there were one, had no validity except between the parties and those having actual no- tice, not of what was on record, but of the instrument itself." 85 Kan. 322, 116 Pac. 823. I do not regard that decision as a definite deter- mination of the question here involved. I think the only case involving the exact question and supporting the decision here made is Kerns v. Swope (Fa. Sup. Ct. 1833J 2 Watts, 75, cited in the opinion. That case is disapproved in the American notes to White &.Tudor's Leading Cases in Equity, vol. 2, p. 152. In 24 A. & E. Encycl. of L. 142, -143, it is said: "If an instrument be not * * * entitled to record because of its defective execution or a failure to comply with some of the prerequisites to recordation, the record thereof will be a mere nullity and will not operate to give con- structive notice. * * * But, * * * of course, such a record may be instrumental in giving actual notice of the rights claimed un- Ch. 8) PRIORITIES 913 der the instrument where the knowledge of its existence is brought home to the party claiming against such instrument." Of the four cases cited in support of this text, these three are di- rectly in point : Rooker v. Hoof stetter, 26 Can. Supr. Ct. 41 ; Woods V. Garnett, 72 Miss. 78, 16 South. 390; and Musgrove v. Bonser, 5 Or. 313, 20 Am. Rep. 117. To these may be added Walter v. Hartwig et al., 106 Ind. 123, 6 N. E. 5, and Hastings v. Cutler, 24 N. H. 481, which are directly in point, and Gilbert and others v.' Jess, impleaded, 31 Wis. 110, and Musick v. Barney, 49 Mo. 458, which are substan- tially so. The New Hampshire case is the leading one on the sub- ject. The grounds of the decision are shown by this extract from the opinion, which is typical of the reasoning in the other cases : "As the deed in this case was not executed according to the statute, the registration as such is inoperative ; that is to say, the registration is not constructive notice of the conveyance. But if by means of that registration of the defective deed the defendants had actual notice of the plaintiff's title, they are charged with the notice as in other cases. The defendants, when they found the copy of the plaintiff's deed on record, must have understood that the intended record was to give information that such a deed had been made, and that the plaintiff claimed the land under it. This must be regarded as actual notice, such as every reasonable and honest man would feel bound to act upon." Hastings v. Cutler, 24 N. H. 481, 483. K writer in the Central Law Journal, in discussing the source from which "actual notice" should come, says: "It is not essential in every case that the notice should come from a party in interest, but that it should come from some one who is capable not only of informing the party of the adverse claim, but who can give such definite informa- tion as to details as will lead to the acquisition of full knowledge of the facts. If this is a correct deduction, then the copy of a deed, even though it were defectively acknowledged, would amount to actual no- tice of a higher degree than mere oral information of the existence of such deed, even though the copy was made by a third party, and the oral information came from a prior grantee. Hence the registry of a defectively acknowledged deed would amount to notice of the con- veyance, provided it were either admitted or proved, that the subsequent purchaser saw and examined the record where the deed was tran- scribed." 4 Central Law Jour. p. 293. The author of Wade on Notice, in an article published in the Amer- ican Law Review in 1885, said: "Registration of a deed, void for in- formalities, as constructive notice, coming to the knowledge of tlie subsequent purchaser, puts him in the direct line of inquiry, and is actual notice of every fact to which that inquiry would lead." 19 Am. Law Rev. p. 88. PoRTKR, J. (dissenting). I concur in the foregoing dissent, and be- lieve that the decision, especially when applied to recorded instruments Aig.Prop. — 58 914 DERIVATIVE TITLES (Part 2 which have defective acknowledgments, may work great injustice to innocent persons, and will produce results which the legislature in adopting the recording act never intended." (C) Effectiveness of Record SIGOURNEY V. LARNED.. (Supreme Judicial Court of Massachusetts, 1830. 10 Pick. 72.) This was a bill in equity to redeem. Isaac Amidon, under whom both parties claimed, made a deed of mortgage to the defendant, dated the 7th of April, 1827. It appeared by the deposition of the register of deeds, that on the 8th of April, which was Sunday, Amidon came to his dwelling-house and entered the door while the clock was striking twelve at midnight, and that Amidon handed the deed to the register, who was a justice of the peace, requesting him to take the acknowledgment of the deed and to record it. The register received the deed, but he did not recollect whether the certificate of the acknowledgment was affixed at tjiat time, or after day- light on the same morning. . The register made a memorandum on the deed, that it was received and recorded on the 9th of April at one minute after twelve o'clock a. m. 32 As to what is sufficient "notice" to affect the subsequent purchaser in Massachusetts, see I'oinroy v. Stevens, 11 Mete. (Mass.) 244 (lS4n). But cf. George v. Kent, 7 Allen (Mass.) 16 (1S63). In Maine, see Spofford v. Weston, 21) ]\Ie. 140 (1S48I; Knapp v. Bailey, 79 Me. 1!)5, 9 All. 122. 1 Am. St. liep. 295 (1887). In Ohio, under the mortgage registry statute, the clearest sort of no- tice d(K's not affect. Mayham v. Coombs, 14 Ohio, 429 (184(j). And in North Carolina the same is true as to all conveyances. Wood v. Lewey, 153 N. C. 401, C9 S. E, 268 (1910). A. takes possession of land belonging to B. and holds same adversely for the period of the statute of limitations. B. then sells and conveys the laiid to X., who pays value therefor without any knowledge of A.'s righti*. What effect, if any, does such sale and conveyance have upou A.'s rights V Lis Tendens.— A purchaser of land from a party involved in litigation re- garding the title to that land takes subject to the results of such litigation. "It is scarcely correct to speak of lis pendens as alfecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so de- scribes its operation. It affects him, not beVause it amounts to notice, but be- cause the law does not allow litigant parties to give to others, i>ending the litigation, lights to the property in dispute, so as to prejudice the opposite par- ty." Bellamy v. Sabiue, 1 De G. & J. 566, 578 (1857). The prlncii)le is as ap- plicable to actions at law as to suits in equity, though the occasions for its opeiation seldom arise in the case of actions at law. By statute in many states a notice of the r)ending litigation must be record- ed. Without such recording pursuant to the statute, a bona tide purchaser for value without other notice of the litigation may acquire rights even from a party to the suit, which will prevail over the rights of other p.irties, though successful in the litigation, See, generally, on the subject, 2 Pomeroy, Eq. Ju- ris. § 632 et seq. Ch. 8) PRIORITIES 915 The land was subject to two previous mortgages, which were after- wards assigned to the defendant. The plaintiff derived his title from an attachment made "instantly after twelve o'clock" on the morning of the 9th of April, without no- tice of the mortgage to the defendant. The plaintiff tendered the sum due on the two mortgages of which the defendant was the assignee, and the question was, whether the attachment was to be preferred before the third mortgage. Per Curiam. Whether a delivery of a deed to the register at his dwelling-house is equivalent to a delivery at his office, need, not be determined, as the Court are of opinion, that independently of that question, the deed to the defendant was received and recorded under such circumstances as will not allow it to have the preference over the attachment. It was not in a state to be considered as recorded, until after the attachment was made. It should not only be acknowl- edged, but the certificate of acknowledgment should be completed, be- fore the delivery to the register, in order that such delivery shall con- stitute a record. The certificate of a'cknowledgment is to be a part of the record. It is not sufficient that the register is informed of the acknowledgment ; the object of recording is to give notice to others. Until this certificate was affixed, the fact that the deed was acknowl- edged and in the register's hands, could not be notice. By the statute, (St. 1783, c. Z7 , § 4,) a deed, to have effect against any but the grantor and his heirs, and to entitle it to be recorded, must be acknowledged by such grantor before a justice of the peace. Here Mr. Ward acted in the double capacity of justice of the peace, and register of deeds. He could not consider the deed as in his official custody in the latter capacity, until he had done his office in taking the acknowledgment of the grantor in the former, which must necessarily take some time. The exact time when the certificate was made, does not distinctly ap- pear ; but the probability is, tliat it was not done till the next morning. But we do not decide the case upon that ground ; had the magistrate proceeded instantly to write the certificate of acknowledgment, it must have taken some time, during which the attachment took effect. Where, in a controverted question of property, the parties stand upon equal grounds, in point of equity, the legal title shall prevail ; and in such cases slight circumstances are sufficient to determine that prior- ity, upon which the preferable legal title depends. Here we think the attachment was prior in time, and the maxim prior in tempore, potior in jure, must decide in favour of the attaching creditor. Redemption decreed. 916 DERIVATIVE TITLES (Part 2 PRINGLE V. DUNN. (Supreme Court of Wisconsin, 1875. '61 Wis. 440, 19 Am. Rep. 772.) Action commenced in Columbia county, August 24, 1863, to fore- close a mortgage alleged to have been executed by the defendants, Andrew Dunn and wife, to the La Crosse & Milwaukee Railroad Com- pany upon the northeast quarter of the southeast quarter of section six, township twelve north, of range nine east, in Columbia county, to secure one of the bonds of said company for $5,000 payable Jan. 1, 1864; said mortgage bearing date April 11, 1854, and alleged to have been recorded on that day in the office of the register of deeds for Columbia county. The plaintiff claimed to hold the bond and mort- gage as a bona fide purchaser for value before due. The assignment to him was not of record. The action was originally brought against the Dunns, the La Crosse & Milwaukee Railroad Company and Hans Crocker, its receiver. Numerous other defendants were afterwards brought in by amendment, and among them the Milwaukee & St. Paul Railway Company, Thomas Maloy, Stanislaus Bartosz, and Felix Mc- Lindon. The complaint, as amended, contained as against all the de- fendants, except the Dunns, the allegation, that they had, or claimed, some interest in, or title to the mortgaged premises which, if any, was subsequent and subject to the mortgage of the plaintiff. The Milwaukee & St. Paul Railway answered and, among other things, denied specially that the plaintiff's mortgage was, at or before the time of recording witnessed so as to entitle it to record, and alleged that the record of the same has and shows no subscribing witnesses' names thereon, and that the said company had since in good faith pur- chased a portion of the premises covered by said mortgage without any actual knowledge of the plaintiff's mortgage. It appeared that the quarter quarter section embraced in the mortgage had subsequently been platted as an addition to the city of Portage, and the various lots thereof conveyed to divers parties, who were made defendants. The mortgagor Dunn died before suit brought. Venue was changed to Milwaukee county. The testimony as to the witnessing and recording of the plaintiff's mortgage, on which action was brought, was voluminous and conflicting, but substantially as fol- lows ; The plaintiff offered in evidence the mortgage which purported to have been signed by Andrew Dunn and Sarah J. Dunn as mort- gagors and by H. C. Baker and A. J, McFarlane, as subscribing wit- nesses, and acknowledged before Harvey C. Baker, as notary public. The defendant offered in evidence a certified copy of the record of said mortgage, certified by the register of deeds of Columbia county, which shows the mortgage the same as the original, except that there are no witnesses' names in the record. The original record was also offered showing the same discrepancy. The deposition of Wm. Owen was read, who testified that he was the register of deeds of Columbia Ch. 8) PRIORITIES 917 county, at the time the mortgage was recorded ; that he signed the cer- tificate indorsed thereon; that after the recording he compared the mortgage with the record, assisted by one P. M. Johnson, he holding the mortgage and comparing, while Johnson read the record ; that the record was written by Johnson, who was at the time in the employ of the La Crosse & Milwaukee Company; that the company were desirous of having their farm mortgages speedily recorded, and made an arrangement with the register whereby the copying of the deeds into the records was done by Johnson, and the register thereafter com- pared with him and certified to the record. The witness was confident he had compared this mortgage by the mark "ex," made at the foot of the page, which was, as he was positive, in his own handwriting; that at the time of the comparing there were no names of subscrib- ing witnesses on the deed ; that, as he thought, the fact was men- tioned at the time, and that Johnson said he would go and have wit- nesses' names subscribed to the mortgage. Hugh McFarlane testi- fied that he was father of A. J. McFarlane, whose name was upon the mortgage as witness ; that A. J. McFarlane was dead ; tliat he knew his handwriting and was positive the signature upon the mortgage was not his son's handwriting; that the son was 14 or 15 years old at the date of the mortgage. Four other witnesses testified to knowl- edge of A. J. McFarlane's handwriting, and that they thought the signature upon the mortgage was not his. The plaintiff, as rebutting evidence, produced P. M. Johnson, who testified that he recorded the mortgage ; that he could not recollect whether the witnesses' names were upon the original mortgage at the time of recording; that it was his special business at the time to see that the mortgages were properly executed, and, if they had been wanting, he thought it hardly possible that the fact would have escaped his notice; that the record was made hastily, and the ottiission of the names in the record was probably an oversight on his part ; that this was more likely than that he should have suffered the deed to pass through his hands incompletely executed. The plaintiff also offered in evidence the original general index from the office of the register of deeds of Columbia county and read therefrom the entry of the reception and record of said mortgage in form and manner as pre- scribed by section 123, c. 10, R. S. 1849.' The plaintiff also introduced as a witness Harvey C. Baker, who testified that both the grantors in the mortgage signed and acknowledged the same before him as notary and that he subscribed the same as a witness at the time; that A. J. McFarlane went with him to the house of Andrew Dunn to obtain the signature and acknowledgment of Mrs. Dunn ; could not positively remember as to McFarlane's signing; but his best recollection was, that he was present and witnessed the signing of the mortgage; did not know young McFarlane's handwriting. Witness's recollection in regard to the circumstances was quite indistinct. He was contradict- ed, as to conversations held with A. B. Alden, who was introduced by 918 DERIVATIVE TITLES (Part 2 defendants and testified that Baker had admitted to him that one of the mortgages given by Dunn had been returned to him by Johnson to have witnesses procured. Some evidence was introduced tending to impeach his reputation for truth and veracity. Mrs. Sarah J. Dunn testified that she had no recollection of signing and acknowledging the mortgage, or of Baker and McFarlane coming to the house, as Baker had testified. Thomas Maloy, one of the defendants, admitted in his deposition that he had heard at the time he purchased his lots, that there was a defective railroad mortgage said to be upon the lots, but which was reputed to be good for nothing; that JMary Maloy, his wife, also owned a lot purchased after the mortgage ; that he was present at the purchase and did the business for her ; that he had previously heard that there was such defective mortgage. There was no evidence that she had heard of, or had any notice of its existence. Felix McLindon, one of the defendants, admitted in his deposition that he "knew by report that there was a railroad mortgage on the place at the time he bought two of the lots covered by the mortgage in suit." .Stanislaus Bartosz, a defendant, who owned and lived on several of the lots, testified that he had no actual knowledge of the mortgage; but it appeared in evidence that his grantor, Simon Bartosz, had purchased from H. W. Tenney, one of the parties who had platted the forty acres embraced in the mortgage in suit, and that Tenney 's deed to Simon Bartosz contained the clause : "said premises are free and clear from all incumbrances, except a mortgage to the La Crosse Railroad Com- pany, which I am to save said Bartosz harmless from." The court below found that the mortgage was not subscribed by Baker and McFarlane as witnesses at the time of the execution there- of, and not until after the recording thereof, but was so subscribed afterwards, but was not again recorded; that the plaintiff purchased the bond and mortgage in regular course of business, and was the owner and holder thereof ; that none oT the defendants had actual no- tice of the mortgage, and that the record thereof, before the same was witnessed, was not constructive notice of the mortgage ; and that the defendants are entitled to judgment that the complaint be dismissed. To these findings tlie plaintiff excepted, and appealed from tlie judg- ment. Cole, J. Before approaching the legal questions involved in this case, it is necessary to determine a question of fact. And that is. Does the evidence show that the mortgage sought to be foreclosed was properly attested when first left at the office of the register, so as to entitle it to record ? There is considerable testimony in the case which tends strongly to prove that the mortgage had no witnesses when it was recorded. And the court found as a fact that the mortgage was not subscribed by the witnesses. Baker and McFarlane, at the time of its execution and before it was transcribed upon tke records and en- Ch. 8) PRIORITIES OW tered in the general index, but was subscribed by these witnesses after it was recorded, and that it was not again recorded. This finding af- firms one important fact which is much contested by the defendants, which is, the genuineness of the signature of the witness A. J. McFar- lane to the instrument. An attempt was made to prove, and it is ar- gued that the evidence shows, that McFarlane never signed the mort- gage as a witness, and that his signature thereto is a forgery. On this point we will only make the remark, that we are satisfied from the evidence, and especially by an inspection of the writings them- selves, of the authenticity of the signature. Whether the mortgage was subscribed by the witnesses at the time of its execution, and before it was left at the ofifice for registry, is a question of more doubt, upon the evidence. The testimony is quite strong and positive, that the mort- gage had no subscribing witnesses when it was recorded. But this tes- timony is contradicted ; and, considering the circumstances attending the execution and delivery of the mortgage, we think the probabilities favor the inference that the instrument was witnessed when it was left for record. According to this view, there was a mistake in tran- scribing the mortgage upon the record, by omitting the names of the witnesses. The weight of the evidence to our minds supports this in- ference or conclusion. It is to be observed that tlie mortgage is per- fect and fair on its face, showing two witnesses. A strong presump- tion fairly arises from the instrument itself, that it was witnessed at the time of its execution. This presumption is not overcome nor re- pelled by the testimony offered to show that it was not witnessed at that time. In respect to the degree or quantity of evidence necessary to justify a finding that the subscribing witnesses signed" the instrument after it was executed and recorded, the case would seem to come within the rule laid down in Kercheval v. Doty, 31 Wis. 478, where it is said: "The proposition being to set aside or invalidate a written contract by evidence of a far less certain and reliable character than the writ- ing itself, the greatest clearness and certainty of proof should be re- quired. It is like the cases where the object is to correct or reform a deed or other instrument on the ground of mistake, or to set aside or rescind it on the same ground ; where the rule is, that the fact must be established by clear and satisfactory evidence." The testimony of- fered to show that the mortgage was not witnessed when executed, and before it was recorded, falls short of this rule. The fact is not established by clear and conclusive proof that it was not witnessed when executed. It would serve no useful purpose to go into a detailed discussion of the evidence upon this point, and we shall not do so. It -is sufficient to say that, giving to the testimony offered to show that the mortgage was not witnessed before it was received for record, all the weight to which it is entitled, it fails to establish that fact in a clear, satisfactory manner. 920 DERIVATIVE TITLES (Part 2 Assuming, then, that the mortgage was witnessed when it was left at the office of the register to be recorded, the further important in- quiry arises as to what effect must be given to the record as construc- tive notice to subsequent bona fide purchasers for value. This record was in this state. The entry of the mortgage was made in the general index book, but the full record of the instrument had no subscribing witnesses. And therefore the question is, Would such a record operate as constructive notice to subsequent purchasers^ for value, independent of any actual notice ? It is claimed by the counsel for the plaintiff that the record does and should so operate, notwithstanding the mistake in the registration or recording of the instrument in extenso. This presents a question of no little difficulty, which must be solved by the application of general principles of law to the provisions of our statute. It is a familiar rule, that an instrument must be properly executed and acknowledged so as to entitle it to record, in order to make the registry thereof operate as constructive notice to a subsequent pur- chaser. Says Mr. Justice Story : "The doctrine as to the registration of deeds being constructive notice to all subsequent purchasers, is not to be understood of all deeds and conveyances which may be de facto registered, but of such only as are authorized and required by law to be registered, and are duly registered in compliance with law. If they are not authorized or required to be registered, or the registry itself is not in compliance with the law, the act of registration is treated as a mere nullity: and then the subsequent purchaser is af- fected only by such actual notice as would amount to a fraud." 1 Eq. Jur. § 404. See also Ely v. Wilcox, 20 Wis. 528, 91 Am. Dec. 436; Fallass v. Pierce, 30 Wis. 444; Lessee of Heister v. Fortner, 2 Bin. (Pa.) 40, 4 Am. Dec. 417; Shove v. Larsen, 22 Wis. 142, and cases cited on page 146. Under our statute, among other requisites, two witnesses are essen- tial to a conveyance, to entitle it to record. The statute requires every register to keep a general index, each page of which shall be divided into eight columns, with heads to the respective columns as prescribed ; and the duty is imposed upon the register to make correct entries in said index of every instrument received by him for record, under the respective and appropriate heads, and immediately to enter in the ap- propriate column, and in the order of time in which it was received, the day and hour of reception ; and it is declared that the instrument "shall be considered as recorded at tlie time so noted." R. S. c. 13, §§ 142, 143. In Shove v. Larsen, supra, the effect of this index containing correct entries of matters required to be made therein was considered. And it was held that by force of the statute it operated as constructive notice to a subsequent purchaser. In that case the index contained an accurate description of the land mortgaged, but, in transcribing the mortgage at large upon the records, a mistake was made in the de- scription. And it was claimed in behalf of the subsequent purchaser, Ch. 8) ^ PRIORITIES 921 that it was the registration of the instrument at large which alone amounted to constructive notice. But this construction of the statute was not adopted, the court holding that a subsequent purchaser was bound to take notice of the entries in the index, which the law re- quired the register to make. This result seemed to follow necessarily from the language of the statute, which declared that the instrument should be considered as recorded at the time noted. Time might elapse before the instrument was transcribed at large on the record, or it might be lost and not transcribed at all, leaving the index the only record of its contents. And the manifest intention of the statute seemed to be to make the index notice of all proper entries from its date, and also of the instrument itself till it was registered in full. The further consequence would seem necessarily to result from this view of the statute, that the registration of the conveyance in extenso re- lates back to the registration in the index, and from thence there is constructive notice of the contents of the instrument. The doctrine of Shove V. Larsen was approved in Hay v. Hill, 24 Wis. 235 ; but the court refused to make the entry in the index in that case operate as constructive notice, because upon its very face it bore conclusive evi- dence that it was not made at its date. In other words, the rectitude and integrity of the index were successfully impeached by the index itself. See also International Life Ins. Co. v. Scales, 27 Wis. '640. Where there is nothing upon the face of the index to impeach or throw suspicion upon its accuracy, there it would affect a subsequent purchaser with notice of those facts which the law required to ap- pear therein. Doubtless a still further consequence follows from tliis construction of the statute, namely, that where by some mistake there is a discrepancy between the proper index entries and the instrument as registered, there each supplies the defects of the other in the con- structive notice thereby given. That is, it appears to be the intention of the statute to charge the subsequent purchaser constructively with such knowledge as the proper index entries afford, as well as with notice of those facts derived from the registration itself. He is pre- sumed to have examined the whole record, and is aft'ected with notice of what it contains. But when the instrument, as registered in full, appears defective in some material and essential parts which are not supplied by the index entries, what effect then must be given the rec- ord as constructive notice? This is really the difficult question in this case. From the entries in the index it would not appear whether the mortgage was witnessed or not. The presumption from the mere en- tries themselves would be, that it was witnessed and acknowledged so as to entitle it to record. But when the mortgage as registered in full was examined, it would be found that it had no witnesses and had no business on the records. As the record itself is only constructive notice of its contents, it is difficult to perceive how it can go beyond the facts appearing upon it, and charge a purchaser constructively with knowledge of a fact not in the record. 922 ■ DERIVATIVE TITLES (Part 2 , One of the counsel for the defendants states the argument on this point as follows : He insists and claims that the entries in the index book, so far as they indicated that the mortgage had been filed for record, indicated also that the mortgage was so executed as to entitle these entries of it to be made ; but that when the full record was looked at for all the particulars of the mortgage, and perhaps for the ex- press purpose of verifying the entries in the index, it is found that the apparent assertion by the index entries that the mortgage was properly executed was wholly untrue, and that the mortgage in fact was no incumbrance. The fact, as truly shown to exist by the full record, overcomes and destroys the false assertion as to the fact in the index. And it appearing by the instrument registered that it was not entitled to record, both the registration and index itself cease to affect the purchaser with constructive notice. It is not readily perceived wherein this argument as to the effect of our various provisions upon the subject of registration is unsound. The question mainly depends upon the construction of our own stat- utes. So far as we are aware, this is the first time the point has been presented in this court for adjudication. We have derived but little aid from the decisions in other states, for the reason that few of them have similar statutory provisions. We have been referred by the coun- sel for tlie plaintiff to two cases in Michigan, Brown v. McCormick, 28 Mich. 215, and Starkweather v. Martin, Id. 472. In Brown v. McCormick the effect of the registry, as notice to subsequent purchas- ers, was made to turn upon the curative act of 1861, mentioned in the opinion. In Starkweather v. Martin the question was, how far the absence, on the registry of a deed, of any m.ark or device indicating a seal, or of any statement of the register that the original was sealed, aft'ected the validity of the record entry as evidence of title. The record entry of the deed was made more than forty years before the cause was decided, by the proper officer, and in the appropriate place for the registry of deeds, under the law permitting the registry of only sealed instruments ; and the instrument was in the form of a war- ranty deed, purporting to be acknowledged and dated at a time when it was the common and lawful course to seal conveyances, and con- trary to official duty to take the acknowledgment unless the convey- ance was sealed, and where the conclusion, attestation clause, and cer- tificate of acknowledgment of the instrument all spoke of it as under seal. The court said that these facts and incidents taken together afforded a very strong presumption that the original was sealed. The doctrine of this case does not seem to have a very strong bear- ing upon the question under consideration. It may be said that it was contrary to the duty of the register to record the mortgage unless it was properly acknowledged and witnessed, and that a presumption arises that he would not have done so. But in answer to this it may also be said that the law made it the duty of the register to record, or cause to be recorded correctly, all instruments authorized by law to be Ch. 8) PRIORITIES 923 recorded. Section 140, c. 13, R. S. 1858. And the presumption that he performed his duty in recording the mortgage correctly, is as strong as the presumption that he would not have recorded it unless it was entitled to registry. In Shove v, Larsen, a number of cases are referred to which hold that a mistake in recording a deed, or recording it out of its order, renders the registration ineffectual as notice to subsequent incum- brancers and purchasers. The doctrine of those cases would seem to be applicable to the case before us. The registration and index entries being incomplete, because showing that the mortgage had no subscrib- ing witnesses, constructive notice could not be presumed of such a record. For the principle "that the registry is notice of the tenor and effect of the instrument recorded, only as it appears upon that record," fully applies. Shepherd v. Burkhalter, 13 Ga. 443, 58 Am. Dec. 523. See, in addition to the cases cited in Shove v. Larsen ; Brown v. Kirk- man, 1 Ohio St. 116; Stevens v. Hampton, 46 Mo. 404; Bishop v. Schneider, 46 Mo. 472, 2 Am. Rep. 533; Terrell v. Andrew County, 44 Mo. 309 ; Frost v. Beekman, 1 Johns. Ch, (N. Y.) 288. The question then arises, whether the evidence shows that any of the defendants were affected with actual notice of the mortgage. This question, we think, must be answered in the affirmative, so far as the defendants Thomas Maloy and Stanislaus Bartosz are concerned. In the deposition taken on his own behalf, but read as a part of the plaintiff's case, Thomas Maloy distinctly admits that he had heard, when he purchased his lots, that there was a defective railroad mort- gage upon them, but that he did not look for it, because his abstract did not show it. It is claimed by one of the counsel for the defend- ants, that this related to the Aiken mortgage, and not to the one upon which this action is brought. It seems to us, however, that this is a totally inadmissible construction of the testimony. He most certainly refers to the mortgage in suit. And what he had heard about there being a defective railroad mortgage upon the property, was sufficient to put him upon inquiry. Parker v. Kane, 4 Wis. 1, 65 Am. Dec. 283. "What is sufficient to put a purchaser upon an inquiry is good notice; that is, where a man has sufficient information to lead him to a fact, he shall be deemed conusant of it." Sugden on Vendors (9th London Ed.) p. 335. "In regard to the inquiry required of a party, it should be such as a prudent and careful man would exercise in his own business of equal importance. Accordingly, where the mortgagee is informed that there are charges affecting the estate, and is cognizant of two only, he cannot claim to be a purchaser without notice of other charges, be- cause he believes that the two, which satisfy the word charges, are all the charges upon it. He is bound to inquire whether there are any others. The rule with respect to the consequences of a purchaser ab- staining from making inquiries does not depend exclusively upon a fraudulent motive ; a man may abstain from mere heedlessness, or stupidity, and be none the less responsible for the consequences; but 924 DERIVATIVE TITLES (Part 2 if he make reasonable inquiry, and is deterred by a false answer, he is excusable, if it be of a character to delude a prudent man." 1 Story's Eq. Jur. § 400 b ; Jackson v. Van Valkenburgh, 8 Cow. (N. Y.) 260. Independently of tlie record, Maloy had notice of the existence of the mortgage, or had a knowledge of such facts as to call for further in- quiry. He cannot, therefore, be protected as an innocent purchaser for value. The defendant Bartosz must be charged with notice of the mortgage by the recitals in the deed from Tenney and wife to his immediate grantor. He was present when that deed was executed and delivered to his uncle. He testifies that he did not know whether anything was said about the railroad mortgage at that time or not; that he did not understand English very well. The purchase was really made by his uncle for him. And whether he fully understood the conversation at the time about incumbrances, he must be chargeable with notice of what appears in his chain of title. This clause was in the deed to his uncle : "Said premises are free and clear from all incumbrances except a mort- gage to the La Crosse Railroad Co., which I am to save said Bartosz harmless from." The general rule upon this subject is, "that where a purchaser cannot make out a title but by a deed which leads him to another fact, he will be presumed to have knowledge of the fact." The following authorities are very clear and decisive upon that point: Fitzhugh V. Barnard, 12 Mich. 105; Case v. Erwin, 18 Alich. 434; Baker v. Mather, 25 Mich. 51; Howard Insurance Co. v. Halsey, 8 N. Y. 271, 59 Am. Dec. 478; Frost v. Beekman, supra, 1 Johns. Ch. (N. Y.) 298 ; Gilbert v. Peteler, 38 N. Y. 165, 97 Am. Dec. 785 ; Acer V. Westcott, 46 N. Y. 384, 7 Am. Rep. 355 ; Coles v. Sims, 5 De Gex, M. & G. 1. The clause in the deed referred to the mortgage as an ex- isting incumbrance, and he cannot now in good faith claim tliat it is not a lien upon his property. The counsel for the plaintiff claims that the defendant McLindon had actual knowledge of the existence of the mortgage. It is true, he testified that when he purchased, he knew by report that there was a railroad mortgage upon the property, but he says that the report stated that the mortgage was void. Were he not protected by another principle, he could not certainly be regarded as a bona fide purchaser. But he purchased from S. S. Johnson, or claims through Johnson, in whom the title stood free from any taint. For the rule is well settled, that a purchaser affected with notice may protect himself by purchas- ing of another who is a bona fide purchaser for a valuable considera- tion. For a similar reason, if a person who has notice sells to another who has no notice and is a bona fide purchaser for a valuable consid- eration, the latter may protect his title, although it was affected with the equity arising from notice in the hands of the person from whom he derived it. Mr. Justice Story says this doctrine, in both of its branches, has been settled for nearly a century and a half in England. 1 Eq. Jur. § 410. He states an exception to the rule, which was recog- Ch. 8) PRIORITIES 925 nized and enforced in Ely v. Wilcox, 26 Wis. 91, where the estate be- came revested in the original fraudulent grantee, when the original equity 'was held to reattach to it. There is no pretense that McLindon comes within the exception; and as a bona fide purchase of an estate, for a valuable consideration, purges away the equity from the estate in the hands of all persons who derive title under it, he is protected. It is said that it does not appear that Johnson's title was derived from the common source. As we understand the bill of exceptions, an ab- stract was oftereti in evidence to show title from Dunn, by various intermediate conveyances, to the defendant, which was ruled out on the plaintiff's objection. But perhaps it is a better answer to the objec- tion to say that the plaintiff has made the defendants parties under the general allegation that they claim some interest in or title to the mort- gaged premises, which was subject to the mortgage. This allegation implies that this interest was not adverse, but was derived from Dunn, though subsequent in date and inferior in right to the plaintiff's mort- gage. It was further insisted that the evidence showed that the defendant Mary Maloy had actual notice of the mortgage. We do not think this position is sustained by the testimony. It is attempted to charge her with the same actual knowledge her husband had, because he aided her when she made her purchase of Martin Maloy. It does not appear that anything was said at this time about the railroad mortgage, or that she ever had any notice of it. It does not appear, even, that he was acting as her agent in any legal sense; and besides, if he were, his knowledge ' acquired at another time, when not engaged in her business, ought not to be imputed to her. Notice, to bind the principal, should be brought home to the agent while engaged in the business or negotiation of the principal, and when it would be a breach of trust in the former not to communicate the knowledge to the latter. 1 Story's Eq. Jur. § 408, and cases cited in note 1. The evidence fails to bring her within that rule. A number of other questions were discussed upon the argument ; but we believe these observations dispose of all the more important ones. The judgment of the circuit court as to the defendants Thomas Maloy and Stanislaus Bartosz must be reversed, and the cause remand- ed for further proceedings in accordance with this decision. By The Court. It is so oi'dered.^^ 33 Parret v. Shaubhut, 5 Minn. 32.3 (Gil. 258), 80 Am. Dec. 424 (1861), ace. The matter of acknowledgment, witnessing, etc., as prerequisites to effective recording, is dependent entirely upon the statutes of the state where the land is. The student should consult the statutes. 926 DERIVATIVE TITLES (Part 2 FROST V. BEEKMAN. (Court of Chancery- of New Tork, 1S14. 1 Johns. Ch. 2SS.) The Chancellor.^' * * * Another, and a more interesting question, is, respecting the extent and effect of the registry of the de- fendant's mortgage, as notice to purchasers. It was a mortgage for $3,000, and, by mistake, the registry was only for $300. 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 Johnson v. Stagg, 2 Johns. 510. The English authorities, on this point, do not, therefore, govern the case. The language of those authorities, un- doubtedly, 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 v. Hud- son, Id. 609, pi. 7; Morecock v. Dickins, Amb. 678; Latouche v. Dun- sany, 1 Schoale & Lefroy, 157; Sugden (3d Lond. Ed.) 524-7; Com. Dig. tit. Til, Deed, ch. 21, § 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 with notice of the contents of the mortgage, any fur- ther 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 conse- quences of it lie between him and the clerk, and not between him and the bona fide purchaser. The act, in providing that all persons might have recourse to the registry, intended that as the correct and sufficient source of information ; and it would be a doctrine productive of im- mense mischief to oblige the purchaser to look, at his peril, to the con- tents 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, 3 4 Only that part of the opinion dealing with the matter of re^stry is printed. Ch. 8) PRIORITIES 927 without hunting out and inspecting 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 repug- nant to the doctrine contained in the books, that notice to a purchaser, of the existence of a lease, is notice of its contents. Taylor v. Stib- bert, 2 Ves. Jun. 437; Hiern v. Mill, 13 Ves. Jun. 118, 120; Hall v. Smith, 14 Ves. Jun. 426. In that case, the party is put upon inquiry, and he must make it, or abide the consequences. The decision, in Jack- son V. Neely, 10 Johns. 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, with- out any previous legal proof, or acknowledgment, would charge a pur- chaser 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 inter- fere in favour of an incumbrancer, when he has not seen that his mort- gage was duly registered. Sugden's Law of Vend. 527; 1 Schoale & Lefroy, 157; Heister v. Fortner, 2 Bin. (Pa.) 40, 4 Am. Dec. 417. But here every thing 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 exclusive 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 reg- istry. * * * TERRELL v. ANDREW COUNTY. (Supreme Court of Missouri, 1809. 44 Wo. 300.) Wagner, J. The argument in reference to the execution of the power contained in the mortgage, and the frauds between the Terrells in the purchase of the property at the mortgagee's sale, is beside and irrelevant to any issue in the case. If the facts alleged are true, they may have furnished sufficient reason for Holt, the mortgagor, to move to set aside the sale ; but in the absence of any complaint on his part, the defendant can not make the objection for him. There is but one question in this case to be determined. It seems that Andrew county loaned to one Holt the sum of four hundred dollars belonging to the common-school fund, for the securing of which he gave personal se- 928 DERIVATIVE TITLES (Part 2 curity, and also executed a mortgage on a lot owned by him in the city of Savannah. The county duly deposited the deed for record with the recorder of the county, and that officer, in recording the same, by mis- take inserted two hundred dollars in the record instead of four hun- dred dollars, showing an encumbrance for the former instead of the latter sum. After the mortgage was recorded, Holt applied to one of the plaintiffs for a loan of money, and offered to secure him by mort- gage liens on real estate, the lot mortgaged to the county being among the property. On examination, the record showed a mortgage for two hundred dollars; the money was loaned, and a junior mortgage given subject to the prior lien. Subsequently the county ordered the lot sold in default of payment, claiming the full amount of four hundred dol- lars, together with accrued interest. The plaintiff paid the two hun- dred dollars, with interest tliereon, and proceeded to enjoin the col- lection of the remainder. The Court of Common Pleas in Buchanan county, to which the cause was removed by change of venue, rendered judgment of perpetual in- junction, and this judgment was reversed in the District Court. The only question, therefore, is whether, under the law, the record imparted notice for any greater amount than two hundred dollars. It is not pretended that, at the time Terrell loaned the money and took his mortgage, he had any other notice of the county's claim than that dis- closed by the record. It is contended here on behalf of the county that, according to our statute, when a person files with the recorder an instrument, it imparts notice of its real contents to all subsequent purchasers, regardless of any mistake that the recorder may commit in placing it on record ; that the statute provides that every instrument in writing, certified and recorded in the manner prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof ; and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase witli notice. R. S. 1855, p. 364, § 41. According to the literal interpretation of the section, no notice is im- parted till the instrument is actually placed on record, and then it re- lates back to the time of filing. It was, no doubt, the intention of the Legislature to give a person filing an instrument or conveyance all the benefit of his diligence ; and when he deposits the same with the re- corder, and has it placed on file, he has done all that he can do, and has complied with the requirement of the law. From that time it will give full notice to all subsequent purchasers and encumbrancers. A person, in the examination of titles, first searches the records; and if he finds nothing there, he looks to see if any instruments are filed and not recorded. If nothing is found, and he has no actual no- tice, so far as he is concerned the land is unencumbered. If he finds a conveyance, he goes no further ; he never institutes an inquiry to find whether the deed is correctly recorded or the contents literally tran- scribed. Indeed, to attempt to prosecute such a search would be idle Ch. 8) PRIORITIES X 929 and nugatory. Grantees do not usually leave their deeds lying in the recorder's office for the inspection of the public. After they are re- corded, they take them out and keep them in their possession. In a large majority of cases it would not only entail expense and trouble, but it would be useless, to attempt to get access to the original papers. Hard and uncertain would be the fate of subsequent purchasers if they could not rely upon the records, but must be under the necessity, before they act, of tracing up the original deed to see that it is correctly recorded. The statute says- that when the deed is certified and recorded it shall impart notice of the contents from the time of filing. Cer- tainly ; but this is to be understood in the sense that the deed is rightly recorded, and the contents correctly spread upon the record. It never was intended to impose upon the purchaser the burden of entering into a long and laborious search to find out whether the recorder had faithfully performed his duty. The obligation of giving the notice rests on the party holding the title. If he fails in his duty, he must suffer the consequences. If his duty is but imperfectly performed, he can not claim all the advantages and lay the fault at the door of an in- nocent purchaser. But it is said the recorder is required to give bond for the faithful performance of all the duties enjoined on him by law, and that this is for the benefit of the subsequent purchaser who is injured by his dereliction, and that he must pursue his remedy against the recorder. This bond is for the benefit of any and every person who may suffer injury by reason of the recorder's neglect to faithfully discharge the duties of his office. It was not Terrell, in this case, who was injured; it was Andrew county. The county deposited the deeds with the re- corder, and paid him for recording it. Through his negligence and inattention he did his work inaccurately, so that it imparted notice for only half the consideration, and the county suffered loss and injury in consequence thereof. The privity springs and exists between the coun- ty and the recorder, and the count}' is the proper party to proceed against him to recover the loss. The judgment of the District Court must be reversed. The other judges concur. MANGOLD V. BARLOW. (Supreme Court of Alississippi, 1884. 61 Miss. 593, 48 Am. Eep. 84.) Ballou and wife executed a deed of trust to Faler & Co. on 19th of February, 1877, on the land in controversy, and on that day it was lodged with the clerk of the chancery court for record. It was recorded but the clerk misdescribed the land, giving a different quarter section from that described in the deed. Three years afterward the same grantors executed a deed of trust on the same land to H. H. Barlow, Aig.Peop. — 59 930 DERIVATIVE TITLES (Part 2 appellee, which was duly recorded on the day of Its execution, 27th January, 18S0. There was no actual notice of the first deed or any-, thing to .put the last grantee on inquiry. In a contest between the prior and subsequent grantees the court below rendered judgment for the latter, and from this judgment an appeal is taken. Campbell, C. J. The question is, who shall suffer loss from an er- ror of the clerk in recording a deed duly acknowledged and lodged with him for record? Does the grantee acquit himself fully of all duty when he delivers the deed to the proper officer for record, or is it his duty to see that the instrument is properly recorded? And if a mistake is made in recording by which a subsequent grantee is misled and in- jured, whose claim shall prevail, that of the first grantee, who relied on the officer to do his duty, or of the second grantee, who, in the faith that the record is true, acts upon it? Shall the deed prevail or the record of it? There is great contrariety of opinion on this subject in other States. The courts of New York, Ohio, Vermont, Michigan, Iowa, Wisconsin, Minnesota, Georgia, Tennessee, ^Missouri, and CaH- fornia hold that subsequent purchasers are bound only by what the record shows, while those of Alabama, Illinois, Pennsylvania, Connec- ticut, Rhode Island, Virginia, and Texas hold tliat a grantee who lodges the deed for record has done all that is required of him, and that the deed must prevail although a mistake is made in recording it; that from the time of its delivery to the proper officer for record it is con- sidered as recorded, and for any error in recording by which a subse- quent purchaser is misled and injured, he must look to the clerk for redress and cannot throw the loss on the first grantee, who did all he was required to do and should not suffer from the negligence of the clerk. The decided weight of authority seems to be in favor of the view that the record may be relied on by a subsequent purchaser, and that he cannot be aft'ected by a deed not truly recorded. Frost v. Beekman, 1 Johns. Ch. (N. Y.) 288; Beekman v. Frost, 18 Johns. (N. Y.) 544, 9 Am. Dec. 246; Barnard v. Campau, 29 Mich. 162; Sawyer V. Adams, 8 Vt. 172, 30 Am. Dec. 459; Sanger v. Craigue, 10 Vt. 555 ; Terrell v. Andrew County, 44 Mo. 309; Lally v. Holland, 1 Swan (Tenn.) 396; Baldwin v. Marshall, 2 Humph. (Tenn.) 116; Chamber- lain V. Bell, 7 Cal. 292, 68 Am. Dec. 260 ; Shepherd v. Burkhalter, 13 Ga. 443, 58 Am. Dec. 523 ; Miller v. Bradford, 12 Iowa, 14 ; Brydon v. Campbell, 40 Md. 331; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772. For the other view, are Franklin v. Cannon, 1 Root (Conn.) 500; Judd V. Woodruff, 2 Root (Conn.) 298 ; :\IcGregor v. Flail, 3 Stew. & P. (Ala.) 397 ; Mims v. Mims, 35 Ala. 23 ; Nichols v. Reynolds, 1 R. I. 30, 36 Am. Dec. 238 ; Merrick v. Wallace, 19 111. 486 ; Throckmorton v. Price, 28 Tex. 605, 91 Am. Dec. 334; Glading v. Frick, 88 Pa. 460; Clader v. Thomas, 89 Pa. 343 ; Beverley v. Ellis, 1 Rand. (Va.) 102. After the most careful consideration we range ourselves with the minority, and hold that a grantee fully acquits himself of all duty im- posed by law when he lodges the instrument with the proper officer Ch. S) PRIORITIES 031 for record, and from that time it is notice to subsequent purchasers and creditors of what it contains, and not of what the recording officers may make it to show on the record. The clerk is not the agent of the grantee and he is not responsible for his blunders. He has as much right to rely on the fidelity of the officer as has a subsequent purchaser. While his deed is in the clerk's office it shows its contents, and when it is withdrawn from the office it has annexed a certificate by the officer that it has been duly recorded. Either this may be relied on, or the grantee must compare the deed with the record to see if it is truly transcribed. This would be an unreasonable requirement. The first grantee having done all that he is required to do to give notice of the instrument may safely repose on the presumption that the recording officer has done his duty, and if subsequent purchasers or creditors suffer injury from official negligence or misconduct, they must seek redress from the party at fault, and cannot visit the loss on him who has done no wrong. In announcing this view we follow the language of our statute and the rule most consonant with justice and sound policy. The statutes declare that certain instruments shall be "void as to all creditors and subsequent purchasers for valuable consideration, without notice, unless they shall be acknowledged or proved and lodged with the clerk of the chancery court of the proper county to be record- ed." The grantee is not required to record the instrument or to see that the officer does his duty. All that is imposed on the grantee is that the instrument shall be acknowledged or proved and lodged with the clerk of the chancery court of the proper county. There his duty ends. That done, his deed is not to be void as to subsequent purchasers or creditors. That is a performance of the condition without which it would be void, and the condition having been performed the instru- ment is discharged of all conditions and is thenceforth valid as to all. Tlie State has established depositories for instruments to be recorded and has prescribed the duties of recording officers. This is for the benefit and protection of subsequent purchasers from a grantor and his creditors. A grantee must have his deed put in condition for being re- corded and must lodge it at the proper place for record. That is all that is required of him. He is not a guarantor of compliance by the recording officer with the law as to recording. It is not for his benefit that the recording is to be done, but for others. The State has under- taken to have the recording done, and if one suffers from the negli- gence of the officer he must seek redress from the officer. The judgment of the circuit court is reversed and the cause re- manded for a' new trial. 932 DERIVATIVE TITLES (Part 2 PROUTY V. MARSHALL. (Supreme Court of Pennsylvania, 1900. 225 Pa. 570, 74 Atl. 550, 25 L. H. A. [N. S.] 1211.) Potter, J. The precise question here presented for determination is whether, when a mortgage is defectively recorded, and wrongly in- dexed, by inserting a wrong initial, in entering the name of the mort- gagor, the correct name being entirely omitted from the record, a pur- chaser of the mortgaged premises, without actual notice, is chargeable with notice of such mortgage, and as terre-tenant of the premises, sub- ject to its enforcement against him. It appears from the record, that on January 20, 1900, L. J. Marshall executed and delivered to Agnes Prouty a purchase money mortgage, secured upon premises in Dubois borough, Clearfield county. On Feb- ruary 6, 1900, the mortgage was delivered for record by the mortgagee to the recorder of deeds for Clearfield county, and the fee for recording paid to him. The recorder subsequently returned the mortgage to the mortgagee, with his certificate indorsed upon it, certifying that it had been recorded. The recorder, however, had not recorded the mortgage as executed by L. J. Marshall, and had not indexed it under the name of L. J. Mar- shall. But upon the record the name of the mortgagor, wherever it appeared, was written "S. J. Marshall," and the only name entered on the indexes was that of "S. J. Marshall." On August 25, 1903, A. A. La Rue purchased the mortgaged prem- ises and the same were conveyed to him by Marshall. La Rue had no actual notice of the mortgage to Prouty. On July 10, 1906, a scire facias was issued on the mortgage against Marshall as mortgagor and La Rue as terre-tenant, to recover a balance claimed to be due the mortgagee. La Rue, the terre-tenant, defended upon the ground that neither the mortgage books nor the mortgage indexes in the recorder's office showed any mortgage executed by L. J. Marshall or contained any record of the mortgage sued on. Upon the trial in the court of common pleas, the trial judge directed a verdict for the plaintiff, reserving a point requesting binding instruc- tions for the defendants. The court subsequently overruled a motion for judgment on the reserved point non obstante veredicto, and entered judgment on the verdict. The terre-tenant appealed to the Superior Court, which affirmed the judgment of the court below. The present appeal is by the terre-tenant from the decree of the Superior Court, which is assigned for error.^"^ An examination of the cases cited in the opinion of the Superior Court, shows that none of them presented facts similar to those in the case at bar, and in none of them was the exact question here presented, 3r. The case below is reported in 30 Pa. Super. Ct 527. Ch. 8) PRIORITIES • 933 considered. Thus in Speer v. Evans, 47 Pa. 141, the case turned upon the question of actual notice, and it was held that actual notice is equivalent to the constructive notice given by the mortgage index. In Brooke's Appeal, 64 Pa. 127, the point decided was, that, under the Act of May 28, 1775 [1715], 1 Smith's Laws, p. 94, a mortgage has priority of lien from the moment when it is left with the recorder for record, not from the time when it is actually recorded. In Schell v. Stein, 76 Pa. 398, 18 Am. Rep. 416, the instrument was properly re- corded, but not indexed, in a general index. It was held that as the law then stood, the recorder of deeds was not required by the Act of March 29, 1827 (P. L. 154), to keep a general index of all the deed and mortgage books in his office, but only to keep an index for each book. The law in this respect has been changed by the Act of March 18, 1875 (P. L. 32), and general indexes are now required to be kept, and failure to index renders the record defective. The case of Wood's and Brown's Appeal, 82 Pa. 116, also arose before the passage of the act of 1875, and it held, that the entry of the mortgage in the proper book gave it a lien, which failure to index would not disturb. The case of Glading v. Frick, 88 Pa. 460, also arose before the act of 1875. It was there decided that, "Where certain instruments of writ- ing are not required by law to be recorded in a particular book, they may be recorded in any book kept by the recorder ; and a building con- tract is valid although recorded in a deed book." In Wyoming Na- tional Bank's Appeal, 11 Wkly. Notes Cas. 567, the syllabus reads: "Where a mortgage is left for record and actually recorded, its lien will not be postponed to a subsequent judgment, by reason of the facf that the recorder has failed to enter Uie same on the book of entries, or upon the index." But this court was careful to point out (page 568) that, "The mortgage in question was left at the recorder's office in 1873, prior to the passage of the act of March 18, 1875, so that it is not necessary to inquire whether the failure to index deprived the mortgagee of his security." Clader v. Thomas, 89 Pa. 343, and Paige v. Wheeler, 92 Pa. 282, enunciate no new principle, and both cases arose prior to the act of 1875. Stockwell v. McHenry, 107 Pa. 237, 52 Am. Rep. 475, does not bear directly upon the question raised by the present appeal. As pointed out by the Superior Court, the case related to an instrument recorded in 1865, and therefore the indexing act of 1875 did not apply. It was expressly held (107 Pa. 244, 52 Am. Rep. 475) that the act of 1875 was not retroactive. In the case of Farabee v. McKerrihan,. 172 Pa. 234, 33 Atl. 583, 51 Am. St. Rep. 734, the mortgage was actually recorded and indexed, but in the deed book and deed index, and not in the mortgage book and mortgage index. It was held that as recording in the deed book, and indexing in the deed index placed the incumbrance in the line of title of the mortgagor, where it could be discovered with the same ease and certainty as if it had been placed in the mortgage book index, by anyone examining tli« title, it was sufficient notice to preserve the lien. 934 DERIVATIVE TITLES (Part 2 The great object to be attained, by recording and indexing an instru- ment affecting the title to real estate, is to give notice of the incum- brance. This principle seems to have been overlooked in the present case, for in reaching a conclusion, both the Superior Court and the trial court apparently gave little heed to the fact that the prime purpose of the law, in providing for the recording of deeds and mortgages, is to give notice to intending purchasers, or to others who may be interested, that the conveyance or incumbrance stands in the line of title to the property which it describes. The object of the recording acts is to give notice to the world of that which is spread upon the record. Therefore, 4he record is constructive notice to all persons, without regard to the fact of actual notice. Under our system, the record is open to everyone who desires to ascertain the condition of the title to any piece of real estate, in so far as its ownership is concerned, or as to incumbrances thereo-n, and everyone is bound to take notice of what the record shows, and searchers may rely upon the record as it stands. If this were not so, no one would be safe in purchasing real estate, or in loaning upon the strength of it, as security. In the present case, the mortgage sued upon was never correctly recorded. The mortgage on record purports to have been executed by S. J. Marshall, and the name of L. J. Marshall does not appear upon it. The record of a mortgage given by S. J. Marshall is not notice to anyone seeking for incumbrances against L. J. Marshall. The same error was made in indexing the instrument. It was indexed as S. J. Marshall, and no mortgage given by L. J. Marshall appears upon the index. As the statute requires the recorder to keep mortgage indexes, and section 3 of the Act of March 18, 1875 (P. L. 32), expressly pro- vides that the entry of r^ortgages in said index, shall be notice to all persons of the recording of the same, the appellant here was entitled to rely upon what appeared on the index, and that showed no mort- gage given by L. J. Marshall. Considerable stress was laid upon the fact that tlie recorder had certified that the mortgage was recorded ; but that can make no differ- ence whatever as to notice to the purchaser, which is the only question that concerns him. He never saw the certificate of the recorder; that was given to the mortgagee, and was for her benefit. If the recorder was negligent in his duty, and gave her a false certificate, she has doubtless her right of action for damages against him. But the error made by the recorder does not alter the fact that no notice of the mortgage, either actual or constructive, was given to the purchaser. He therefore took the land free of any such incumbrance, and it can- not be enforced against him. The motion for judgment in favor of defendant, non obstante veredicto, should have been sustained. It should be remembered that in this case the mortgage was neither recorded properly nor indexed properly ; both recording and indexing were alike defective, and each of the defects was fatal to the claim of the mortsrasfee. Ch. 8) PRIORITIES 935 The failure to index properly is made so by the Act of March 18, 1875 (P. L. 32), which after requiring in the first section, the recorder to prepare and keep two general indexes, the one direct, and the other ad sectum,, of all mortgages recorded in his office, goes on to provide : "Sec. 2. As soon as said indexes are prepared, it shall be the duty of the recorder to index in its appropriate place and manner every deed and mortgage thereafter recorded in his office, at the time the same is recorded, and in case he neglect to do so, he and his sureties shall be liable in damages to any person aggrieved by such neglect." In Pyles v. Brown, 189 Pa. 164, 168, 42 Atl. 11, 12, 69 Am. St. Rep. 794, our Brother Fell said that this act 'Svas probably passed to remedy the defects in the recording acts pointed out by Chief Justice Agnew in the opinion in Schell v. Stein, 76 Pa. 398 [18 Am. Rep. 416], decided in 1874." There it was said (76 Pa. 400^ 18 Am. Rep. 416) : "The question presented by the record in this case is, whether a deed regu- larly acknowledged or proved, and recorded in the proper book, and indexed in the separate index appropriated to the book, but not in the general index of all the deed books, is not defectively recorded. If it be, tlie conceded principle is, that a deed defectively registered is a nullity as to subsequent purchasers or mortgagees. There is no law which requires the recorder to keep a general index to all the deed or mortgage books in his office. That it is a great convenience, and in the populous counties of the state has become a necessity, is evident, but it is the province of the legislature, and not of this court, to make this convenience or the necessity the subject of law." The needed legislation thus pointed out, requiring the keeping of general indexes, was provided by the act of 1875, and thereafter under the reasoning of Justice Agnew, supra, the failure to index in the gen- eral index became such a defect in the recording, as to make it a nullity to subsequent purchasers or mortgagees."*^ In 1 Jones on Mortgages (6th Ed. 1904) § 515, it is said: "If the record of a deed be defective for any cause, it is constructive notice of only what 'the record contains, in case the record is not an accurate transcript of the instrument. This is the view sustained by the greater number of decisions and by the greater weight of reason, as distin- guished from the view that the filing of the deed operates as a record of it, and that it is constructive notice from such time of the actual contents of the deed," citing Heister v. Fortner, 2 Bin. 40, 4 Am. Rep. 417; Schell v. Stein, 76 Pa. 398, 18 Am. Rep. 416, and cases in Cali- fornia, Indiana, Maine, Maryland, Michigan, Minnesota, Missouri, New Jersey, New York, Virginia and Wisconsin. So also in 2 Pomeroy's Equity Juris. (3d Ed., 1905) § 654, there is a clear statement of what 'we. think is a sound principle. It is there said : "A record is a constructive notice only when and so far as it is a true copy, substantially even if not absolutely correct, of the instru- 3 8 So, also, in Iowa the failure to index is fatal. Barney v. McCarty, 15 Iowa, 510, 83 Am. Dec. 427 (1S64). 93G DERIVATIVE TITLES (Part 2 ment which purports to be registered, and of all its provisions. Any- material omission or alteration will certainly prevent the record from being a constructive notice of the original instrument, although it may appear on the registry books to be an instrument, perfect, and opera- tive in all its parts. The test is a plain and simple one. It is whether the record, if examined and read by the party dealing with the prem- ises, would be an actual notice to him of the original instrument and of all its parts and provisions. B}'' the policy of the recording acts, such a party is called upon to search the records, and he has a right to rely upon what he finds there entered as a true and complete transcript of any and every instrument affecting the title to the lands with respect to which he is dealing. A record can only be a constructive notice, at most, of whatever is contained within itself. * * * The same rule .applies to the record of miortgages and all other incumbrances which can be recorded. The language, both of the original and of the record, must be such that if a subsequent purchaser or incumbrancer should examine the instrument itself, he would obtain thereby an actual notice of all the rights which were intended to be created or conferred by it." In the case at bar, the duty was upon the mortgagee" to give notice that L. J. Alarshall had executed to her a mortgage upon the premises in question. If from any cause she fell short of giving legal notice, the consequence must fall upon her. She cannot hide behind the mistake of the recorder. It is an easy matter for a mortgagee, or a grantee in each particular instance, either in person, or by a representative, to look at the record, and see that the instrument has been' properly en- tered. The instrument itself is at hand. The names of the parties are known, and comparisons are easily made. How would it be possible for a subsequent purchaser to know anything about the facts? The duty thus imposed upon the mortgagee in this respect, involves no more, and no less, than is required of a mortgagee, for his own pro- tection, when before the money is paid out upon the loan, an inspection of the judgment indexes is necessary to see whether or not a judgment has been entered against the mortgagor upon the same day on which the mortgage is recorded. Some care must be exercised in every such transaction. There is every reason why it should be made the duty of the mortgagee to see that his instrument is properly recorded. This will not in any way interfere with the principle that when the instru- ment is certified as recorded, it shall import notice of the contents from the time of filing. But that must be understood as in connection with an instriiment properly recorded. As said above, the record is notice of just what it contains, no more and no less. The obligation of seeing that the record of an instrument is correct, must properly rest upon its holder. If he fails to protect himself, the consequence cannot justly be shifted upon an innocent purchaser. The judgment of the Superior Court is reversed, as is also that of the court of common pleas, and it is ordered that judgment in favor of the terre-tenant be entered, non obstante veredicto. Ch. 8) PRIORITIES 937 IMUTUAL L. INS. CO. v. DAKE. (Court of Appeals of New York, 1881. 87 N. Y. 257.) Earl, J. This action is brought to foreclose a mortgage which was executed by the defendant Teeple and his wife, to the plaintiff on the 4th day of June, 1870, upon lands in Livingston county, to secure pay- ment of the sum of 82,000 with interest. On the 7th day of December, 1870, the plaintiff left the mortgage at the office of the clerk of Livingston county, for record, and paid the fee for recording it. On the same day the clerk duly transcribed the mortgage in full, in the proper record book in his office, and in- dorsed on it his certificate in due form, and returned the mortgage, so indorsed, to the plaintiff. The clerk omitted, however, by mistake, to index the mortgage, and the plaintiff was ignorant of the omission until September, 1875, when the omission having been discovered, the mortgage was indexed by the clerk. The defendant, Jabez W. Dake, is the assignee of two mortgages executed by Teeple, on the same premises, one prior to the plaintiff's mortgage, dated April 6, 1868, for $600 and interest, given to one Nichols; the other, executed to one Baity, on the 14th of March, 1874, duly recorded and indexed on that day, and assigned by Baity to Dake, on the 10th of March, 1875. The mortgage to Baity was given to secure the payment of the sum of $1,- 400 loaned by Baity to Teeple at the time of the execution of the mortgage. Before making the loan, and in view of it, Baity procured from the clerk a certificate of search, as to the title to the premises, and incumbrances thereon. The certificate did not show the existence of the plaintiff's mortgage, and Baity had no actual notice or knowl- edge of it until after he assigned his mortgage to Dake. The assign- ment to Dake was for a valuable consideration, and was duly recorded on the 16th of March, 1875. Before taking it, Dake saw the cer- tificate of search which Baity had, and also procured for himself a certificate of search from the clerk, which, as well as the one in Balty's hands, did not show the existence of the plaintiff's mortgage, and Dake had no actual notice or knowledge of such mortgage till the 6th of December, 1875. The question now to be determined is, whether the plaintiff's mortgage or the Baity mortgage shall have priority, Dake claiming that although the plaintiff's mortgage was prior in time, it lost its priority because it was not indexed. We have carefully examined the able and exhaustive briefs submit- ted to us, and are satisfied that no error was committed in the court below by its holding that plaintiff's mortgage had the priority. The carefully prepared and able opinion of Smith, J., at the Special Term, leaves but little now to be said ; but as the question is claimed to be a new one in tliis State, we will briefly state the reasons for our af- firmance of the judgment appealed from. 938 DERIVATIVE TITLES (Part 2 The plaintiff's mortgage, being prior in time, is entitled to priority ' over the Baity mortgage, unless it has lost such priority by force of the Recording Act, and a reference to it is therefore needful. It is found in chap. 3, part 2, of the Revised Statutes, which chapter is en- titled, "of the proof and recording of conveyances of real estate, and the canceling of mortgages." Section 1 provides, that "Every con- veyance of real estate within this State, hereafter made, shall be re- corded in the office of the clerk of the county where such real estate shall be situated; and every such xonveyance not so recorded, shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded." The' record here in- tended was plainly a copy of the conveyance, transcribed into the proper book of records. Section 2 provides, that "Different sets of books shall be provided, by the clerks of the several counties, for the recording of deeds and mortgages." Section 24 provides, that "Every conveyance entitled by law to be recorded, shall be recorded in the order, and as of the time, when the same shall be delivered to the clerk for that purpose, and shall be considered as recorded, from the time of such delivery." Section 25 provides, that "The recording officer shall make an entry in the record, immediately after the copy of every conveyance recorded, specifying the time of the day, month and year when the said conveyance was recorded, and shall endorse upon ev- ery conveyance recorded by him, a certificate, stating the time as afore- said, when, and the book and page where, tiie same was recorded ;" and a later section (38) provides that the term "Conveyance" shall em- brace a mortgage. Here there is a complete system for the registry of deeds and mort- gages prescribing the place and mode of registry, and not one word is said of any index to be made. It will be observed that the clerk is not required to certify, upon the conveyance recorded, tliat he has indexed the same, and yet if the index was an essential part of the rec- ord, it cannot be supposed that a matter so important would have been omitted from the certificate required. By chapter 313 of the Laws of 1826, county clerks were required to make separate indices in separate books of all deeds and mortgages recorded or registered in tlieir respective offices, whenever directed by the Court of Common Pleas, and it was provided that they should be paid for making such indices by the board of supervisors, and that was the first act in this State, in reference to indexing deeds and mort- gages. It did not provide for indexing conveyances thereafter to be recorded. The only provision in the Revised Statutes on the subject of index- ing conveyances is found in part 3, chapter 3, article 2, which article is entitled "Of the powers and duties of certain judicial officers." Sec- tion 61 of the article provides, tliat "It shall be the duty of the clerk Ch. 8) PRIORITIES 939 of each county in the State, and of the register of the city and county of New York, to attach to every book kept in his office, in which deeds or mortgages shall be recorded, or collectors' bonds entered, an index to the matters contained in such books, arranged in alphabetical order, under tlie names of the several parties to such matters, with references to the pages where the same may be found, which, together with such books, shall at all proper times be open for the inspection of any per- son paying therefor the fees allowed by law." That section is still in force ; it does not make the index a part of the record ; it recognizes the record as complete without the index, and simply provides for an index to the records. The first lav/ requiring county clerks to make and keep books of general indices is found in chapter 199 of tlie Laws of 1843, section 1 of which provides, that "The clerks of the several counties in this State, and the register of the city and county of New York, in those counties in which general indices of deeds and mortgages have not been made and preserved, according to the act passed April 18th, 1826, shall provide proper books for making such general indices, and shall form indices therein in such manner as to afford correct and easy ref- erence to the several books of record in their offices respectively. There shall be one book for deeds and another for mortgages. In each book there shall be made double entries, or two lists of names, in alphabeti- cal order. In one shall be set the names of the grantors or mortga- gors, followed by the names of their grantees or mortgagees ; and in the other, the names of the grantees or mortgagees, followed by the names of the grantors, or mortgagors, leaving proper blanks between each class of names for subsequent entries ; and in those counties in which indices were made under the said act of April 18, 1826, and have been preserved, the several clerks shall complete the same by bringing them down to the present time, and in either case, the said clerks shall keep the said indices complete by adding to the lists, as deeds and mortgages shall be sent in to be recorded." And section 2 provides, that "Each county clerk is hereby authorized to charge in his account against his county, all necessary expenses which he may incur in the purchase of books for such indices, and at and after the rate of fifty cents for every hundred names, which he may enter in such book." ■The indices here provided for clearly form no part of the record, but are intended, in the language used in section 1, "to afford correct and easy reference" to the books of record ; and the record is thus recog- nized as existing independently of the indices. It must be noticed further, that while a person who procures a conveyance to be recorded must pay the clerk his fee for recording, it is provided in. section 2 tliat the expense of indexing is a public charge. I have thus quoted at length the main provisions of the Recording Act, and of the acts in reference to indices, that the full force of the language used in them may be fully and easily comprehended; and 940 DERIVATIVE TITLES (Part 2 thus It Is plainly seen that there is nothing in them which makes the index a part of the record. It is clear that the only purpose which was intended to be served by the indices is as a guide to the records for the convenience of searchers. That our conclusion is the correct one is made still more manifest by section 26 of the Recording Act, which provides that the transcript of any record of a deed or mortgage, recorded as provided in the act, may be read in evidence, when certified by the clerk to be a true copy of such record. The record intended in that section is unques- tionably the record made by a transcript of a conveyance in the proper book, as provided in the act, and the index is no part of such record which is required to be certified. It was never heard that a certified copy of the record of a deed or mortgage was objected to, or excluded as evidence, because a copy of the index was not included as a por- tion of the record; and yet if it formed an essential portion of tlie record, it would always have to be certified as part thereof. There is nothing in the history of the legislation on the subject of the registration of deeds and mortgages, from the earliest time in Eng- land and in this State, which tends, in the least degree, to show that it has ever been supposed that indexing was any essential or necessary part of registration. Such legislation is ably reviewed in the opinion of Smith, J., at Special Term, and needs no further notice here. Whatever forms part of a perfect record, as prescribed in the act, is essential ; that is, the conveyance must be recorded in the proper book, in the proper order, and with substantial accuracy. If the record be defective in any thing essential, it will not serve the purpose of giving constructive notice to subsequent bona fide grantees or incum- brancers. It is claimed, on the part o£ the appellant, that if the Index is no part of the record, it is useless, and even worse than useless, as it might operate to ensnare and mislead persons relying upon it. It is true that an index may, by mistake, be omitted ; but such mistakes must rarely occur, and the legislature undoubtedly deemed it sufficient to make it part of the duty of county clerks to make the indices. It is an adequate guaranty that the indices will be sufficiently correct and reliable that county clerks are liable to be indicted if they willfully or. fraudulently omit to make them correctly, and are at the same time liable in a civil action to the party injured by their omission or neglect. The duty to make the indices is a public duty, for which the clerks are paid by the public, and for the violation of such a duty, it cannot be doubted that any one of the public specially injured has his action. When a conveyance is delivered to the clerk the statute provides, that it shall be "considered as recorded from the time of such delivery." After such delivery nothing more need be done to keep the record perfect, except at the proper time to record it in its proper order, in the proper book; and yet if the conveyance, in the meantime, before Ch. 8) PRIORITIES 941 the record thereof, should be mislaid in the clerk's office, or lost or pur- loined, the record would still remain complete. In such case there could be no index of such conveyance, because, until the time for re- cording it had arrived, it could not be known in what book, or in what place in any book, it would be recorded. That the index is no part of the record, and may be omitted by the clerk without impairing the record, is the view sanctioned by tlie cur- rent of decisions, in the other States, and by elementary writers. In 4 Kent's Com. 174, note, it is said: "An index or alphabet of a mort- gage is no part of a mortgage, and a mortgage is duly registered if no index of it is made." In 1 Washburn on Real Property, 578, the rule is laid down as follows : "The proposition is a general one, that an irregular registration of a deed is no notice to others of the existence of such deed ; but an omission of the register to note the time of re- ceiving the deed for record, or to enter it in the index or alphabet, will not invalidate the effect of the registration ;" and in 1 Hilliard on Mortgages, 721 (4th Ed.), as follows: "The record of a mortgage is sufficient, though not mentioned in the alphabet, or index ;" and also in 1 Jones on Mortgages as follows : "The index is no part of the record, and a mistake in it does not invalidate the notice afforded by a record otherwise properly made ; although the mortgage be omitted from the index it is just as much an incumbrance upon the land, and " notice of it from the time it was left for record, or transcribed, affects all subsequent purchasers." It may be that the index, both for convenience and safety, should be made a part of the record ; but until it is so made by the legisla- ture, we can but pronounce the law as it is. The judgment should be affirmed, with costs. All concur. Judgment affirmed. ^^ S7 The Toerens System.— The present system of recording, under which, as is evident from the cases above, only instruments of title are recorded or filed, has many sliorteomings. Even after the most careful examination of the rec- ords, showing, perhaps, a perfect record title in a certain person, no one can be wholly safe in relying thereon. There are many matters, any one of which would be amply sufhcient to upset completely such apparently perfect title, that do not .show upon the records, and that cannot be disclosed by an examination thereof. In fact many of such matters are almost impossible of disclosure by an ordinarily careful additional examination outside the records. Among the many matters which may thus affect an apparently perfect title are nondeliv- ery, forgery, incapacity, etc. See 12 Mich. L. Rev. 3S9 et seq. Aside from the foregoing, the recording system ordinarily involves at each sale or incumbrance an expert examination of the entire record, which means expense, often large expense. Because of these deficiencies of the prevalent system there has been a stead- ily growing demand for something better. By many it is claimed that the so-called Torrens System of Land Title Registration mil obviate many, if not all, our present ills. Under that system title itself is registered, and' therein lies the fundamental difference between it and our present system of record- ing title instruments. The system takes its name from Sir Robert R. Torrens, a native of Ireland, who emigrated to Australia in 18-10, later becoming the first Premier of South Australia. It is said that it was in 1S50, when he was 942 DERIVATIVE TITLES (Part 2 collector of customs at Adelaide, that he first thought of applying to land the method of registering and transferring ownership in ships. In 185S. the first "Torrens Title Act" went into effect; in South Australia, largely through the efforts of Sir Robert R. Torrens. Although the system in England and her dependencies and in the United States is known by his name, he was by no means its inventor, so to speak, for similar systems had been in operation in parts of Europe for many years. Sheldon, Land Registration, c. 7. In the United States the flrst difnculty is to draw a statute that will with- stand constitutional objections. The first American statute introducing the Torrens System was enacted in Illinois in 1895 ; the second, in Ohio in 1890. California", Massachusetts, Oregon, Minnesota, Colorado, Washington, and New York followed. The first Torrens Act in Illinois was held unconstitutional. People V. Chase, 165 111. 527, 46 N. E. 454, 36 L. R. A. 105 (1897). Following that decision, the Illinois Legislature enacted a new statute, which has so far withstood constitutional attacks. The Ohio statute of 1896 also was held in- valid. State V. Cuilbert, 56 Ohio St. 575, 47 N. E. 551, 38 L. R. A. 519. GO Am. St. Rep. 756 (1897). In 1913, the Ohio Legislature, pursuant to provisions of an amendment to the Constitution adopted in 1912, enacted a new statute for registration of land titles. The statutes are too lengthy to give even in summary. The procedure in bringing land under the system and the manner of dealing therewith after- wards are well stated in the following language used by the Supreme Court of Minnesota in State v. Westfall, 85 Minn. 437, 89 N. W. 175, 57 L. R. A. 297, 89 Am. St. Rep. 571 (1902), in which the court declared the Minnesota Torrens Act constitutional : "The act provides, among other things, that the owner of any estate or in- terest in land may have the title thereto registered by making an application in writing, stating certain facts, to the district court of the county wherein the land is .situated. Thereupon the court has power to inquire into the state of the title, and make all decrees necessary to determine it against all persons, known or unknov.-n. The application must be filed and docketed in the office of the clerk of the court, and a duplicate thereof filed with the register of deeds, who is ex officio registrar of titles. The application is then referred by the court to an examiner of titles, who investigates the titles, and inquires as to the truth of the alk\gations of the application, particularly whether the land is occupied or not, and makes and files a report of his examination with tlie clerk. Upon the filing of the report the clerk issues a summons by order of the court, wherein the applicant is named as plaintiff, and the land described, and all other persons knowai to have any interest in or claim to the land and 'all other persons or parties unknown' claiming any interest in the real estate described in the application are named as defendants. The summons must be directed to such defendants, and require them to appear and answer within twenty days. It must be served in tlie manner now provided for the service of summons in civil actions, with this exception : That the summons shall be served on nonresident defendants and upon all unknown persons by publishing it in a newspaper printed and published in the coimty where the application is filed once a week for three consec-utive weeks. In addition to such publica- tion the clerk shall, within twenty days after the first publication, mail a copy of the summons to all nonresident defendants whose place or address is known, and the court may order such additional notice of the application as it may direct. Any interested party may appear and answer. If no appearance is made, the court may enter the default, but must take proof of the applicant's right to a decree, and is not bound by the report of the examiner, but may re- quire further proof. If appearance is made, the case shall be set for trial, and heard as other civil actions. If the court finds that the applicant has title proper for registration, a decree confirming the title and ordering registi-ation shall be entered. Every such decree shall bind the lands and quiet title there^ to, except as othei-\;\'ise provided in the act, and shall be forever binding and conclusive upon all persons, whether mentioned by name or included in the ex- pression 'all other persons or parties unknown,' and such decree shall not open by the reason of absence, infancy, or other disability * '■■ * except as pro- vided in the act. * * * Every person receiving a certificate of title and every subsequent purchaser in good faith takes the same free from all in- cumbrances, except such as are noted thereon. Upon entering the decree of Ch.8) PRIORITIES 943 registration, a certified copy thereof must be filed by the clerk in the office of the registrar of titles, who proceeds to register the title pursuant to the decree. This he does by entering an original certificate in the registry of titles, and de- livering a duplicate thereof to the o\A'ner, who may thereafter convey his title by the execution of deeds and the surrender of his certificate to the registrar for cancellation, who issues a new certificate to the purchaser." And such is the only method by which the land, after registration, may be conveyed ; the old duplicate certificate must be delivered up and canceled; and a new certificate issued to the new owner. Most of the statutes, as in Minne' sota, still preserve the use of the deed, which, however, does not act in itsel" as a conveyance, even after complete execution. INDEX [the figures refer to pages] ACCEPTANCE, Of convejance, necessity, 375 Thompson, 383 note, 384 Welch. Of dedication, necessity to bind landowner, 182 Cassidy. To bind public corporation, 183 Downing. ACCRETION, Apportionment of, 155 note. Artificially induced, 146 note. Effect upon defined boundaries, 147 Volcanic Oil & Gas Co. To banks or shores, ownership, 140 GifCord. What is. 140 Gifford, 145 Halsey. ACKNOWLEDGMENT, Required for what, 279, 914 Sigourney. ADVERSE POSSESSION, , Disabilities, 91 Doe. Minerals, 80 note. Tacking, 24-43. What constitutes, 43-80. Claim of title, 43 Ricard, 51 French, 56 Preble, 61 Bond. Devisee for life under invalid will, 68 Hanson. Donee under parol gift. 63 note. Mistaken belief of limited right, 61 Bond. Mistaken belief of ownership, 51 French, 56 Preble. Possessor supposing title in one not really the owner, 72 Dean, 78 note, 79 Mitchell. Squatter, 51 note. Tenant after disclaimer, 65 Fortier. Tenant for life after death of cestui que vie, 66 Parker. See Constructive Adverse Possession ; Lapse of Time ; Prescrip- tion. AFTER-ACQUIRED TITLE, Transfer by estoppel, 793-809. ^ ASSIGNMENT, Defined, 231. ATTESTATION, Required for what, 279. ATTORNMENT, Abolished, 162 note, BARGAIN AND SALE, Consideration for, 248 Jackson, 254 note. Nature of, 236. Operation of Statute of Uses upon, 248 Lutwich. Words sufficient for, 248 Grey. BOUNDARIES, Confiict between course and distance, 411 Hall, 416 Temple. ' Between course and monument, 402 Hoban, 405 Whitehead, 407 Lemed 408 Burkholder. • • ' Aig.Prop.— GO (945) 946 INDEX [The figures refer to pages] BOUNDARIES— Continued, Mistake in location, adverse jwssession, 51 French, 5G Preble. Necessity for, 394 Harris, 395 Lego, 401 Morehead. On private way, 429 Saccone. Streets and streams, 421 Sizer, 426 note, 436 C. & E. I. R. Co., 43S Ix)w, 440 Jonas, 443 note, 444 Trowbridge, 447 Dodd. Unopened street, 426 Bangor House Prop. Ways on margin of land, 429 Saccone, 434 Geddes Coarse Salt Co. Reversal of calls, 402 Hoban, 404 note. Undetermined part of larger tract, 401 Morehead. CANCELLATION, Of lease as surrender, 190 Lord Ward. COLOR OF TITLE, Meaning of, 81 Jackson, S2 note. COMMON RECOVERY, Defined, 160. CONCURRENT OWNERSHIP, Accoimttng by cotenant, 711 Pico, 715 note. Conveyance of part by metes and bounds, 723 Griswold, 725 Cressy, 72S Lessee of White. Improvements by cotenant, 722 Kelsey. Outstanding title acquired by cotenant, 700 Van Home, 702 note, 703 El- ston, 706 Hurley, and note, 709 Jackson. Repairs by cotenant, 716 Calvert, 719 note, 720 Pickering. CONFIRMATION, Defined, 188. Distinguished from quitclaim, IBS note. CONSTRUCTIVE ADVERSE POSSESSION, Color of title, requirement of, 81 Jackson, 82 note. Conflicting or overlapping, 89 Ralph, 91 note. Necessity for actual adverse possession, 84 Bailey, 81 Jackson. CONVEYANCES, See Mode of Conveyance. COPARCENARY, Nature of, 688. Partition, 689. COVENANTS FOR TITLE, Action for breach, effect of transfer of after-acquired title by estoppel upon, 804 Resser. Release of covenantor, 778 note. Run with the land, 734 Noke. Broken covenants, 754 Lewes, 755 Kingdon, 757 Kiugdon, 759 Mitch- ell, 767 Schotield. Claim on covenants available to successors to covenantee's estate, 746 Andrew, 748 Williams, 749 Beardsley, 753 St. Clair. Privity of estate between covenanting parties required, 734 Noke, 736 Bed'doe, 740 Solberg. Successive covenants, 776 Wilson. When assignor may sue on covenant broken after assignment, 770 Mark- land. COVENANT TO STAND SEISED, Freehold in futuro by, 255 Roe. Nature of, 236. Relationship, 255 Roe, 258 Murray. CREATION OF EASEMENTS BY IMPLICATION, See Implication. CROPPING CONTRACTS, See Years, Estates for. INDEX 947 [The figures refer to pages] CURTESY, Defined, 580. Extent of interest, 582 Mattock, 583 note, 584 Foster. Nature of husband's title, 595 Watson. Interest remaining in wife, 584 Foster. Seisin of wife, 588 Borland's Lessee. DEDICATION, Acceptance to bind lando^Tier, 182 Cassidy. Municipality, 183 Downing. Proof of, 184 Ogle. By equitable o'mier, 165 Cincinnati. Character of user required, 164 Rex, 174 Waters, 177 note. Effect of, 163 Lade. 165 Cincinnati. For cemetery, 177 Wormley. Grantee unnecessary, 165 Cincinnati. Length of time required, 163 Rex, and note. Limited, 164 note. Proof of, 164 Rex, 174 Waters. DEFEASANCE, • Defined, 231. DELIVERY, Acceptance, 375 Thompson, 383 note, 384 Welch. In escrow to grantee, 334 Whyddon, 335 Hawksland, 336 Williams, 336 London F. & L. Prop. Co., 342 Wipfler, 344 Lee. To agent of grantor and grantee, 336 London F. & L. Prop. Co. Effect of improper delivery by custodian, 347 Everts, 351 note, 352 Schurtz. Necessity for valid contract, 357 Campbell, 360 note. When title passes, 361 Hull, 362 Farley, 362 Hall, 365 May, 368 Scott, 370 Baker. Manual not required, 288 Doe, 295 Fryer, 297 Mitchell, 303 Matson, 305 Burnet. Recording as presumptive, 297 Mitchell, 300 note. Requisites of in general, 297 Stanton, 281 Curry, 282 note, 283 Tisher, 2S6 Parrott. To third party, 288 Doe. To be delivered on grantor's death, 308 Wheelwright, 312 Ruggles, 314 Johnston, 316 Moore, 316 note, 320 Owings. When title passes, 322 Stone, 325 Stonehill, 329 Smiley, 331 Rathmell. DERIVATIVE TITLES, 156-943. DESCENT CAST, Abolished, 11 note. Right of entry lost by, 5, 159. When arises, 9. DESCRIPTION, See Boundaries; Exceptions and Reservations. DEVISE, Defined, 232. DISABILITIES, See Adverse Possession. DISSEISIN, By election, 9. Defined, 3, 4, and note. Distinguished from dispossession, 7 Smith. Effect of, 4. Remedies upon, 4-7, 159. DOWER, Barred how, 619 Ingram, 620 Grady, 622 Catlin, 624 Robinson. Defined, 597. 948 INDEX [The figures refer to pages] DOWER— Continued, Fraudulent conveyance, effect upon, 624 Robinson. In estates held for husband in trust, 600 Shoemaker. In remainder, 600 Shoemaker, 602 Bates. Limitation over on death of husband, 603 Edveards. Momentarily held, 598 Holbrook. Upon condition subsequent, 608 Ellis. Nature of interest while inchoate, 612 Flynn, 616 note. After death of husband, 610 Wallis. Protection of against waste, 616 note. Signing deed as bar of, 622 Catlin. Statutory modifications, 627 note. Taxation of under inheritance tax, 616 Crenshaw. Value determined as of when, 624 note. Where husband had executed escrow deed, 365 note. Deed to be delivered on death, 329 Smiley. Widow of surviving joint tenant, 597 Broughton. EASEMENTS, See Implication. EMINENT DOMAIN, Extent of interest acquired, 154 note. Nature of title by, 154 note. When title passes, 154 note. ENTIRETIES, ESTATE BY, Created how, 686, 692 Thornburg, 698 Pegg. Defined, 689. ENTRY, Restoration of seisin by, 4. ESTATES CREATED, 547-733. ESTOPPEL BY DEED, By representation, 783 Hannon, 789 note. - Effect of warranty, 779, 780 Jackson, 790 Ayer. In quitclaim deed, 781 Bayley. Transfer of after-acquired title by, 793 Doe, 796 note, 796 Perkins, 797 Jordan, 801 Jaiwis, 804 Resser. As affecting actions upon covenants for title, 804 Resser. Effect of recording statutes upon, 858 Tefift, 862 Wheeled. EXCEPTIONS ANT) RESERVATIONS, Coal reserved, 449 Whitaker. Easement "reserved," 455 Dee, 461 Smith's Ex'r. Exception of part of water privilege, 450 note. Must not be repugnant, 449 Dorrell. Pleading, 452 note. Road "reserved," 452 Kister. To stranger, 463 Haverhill Sav. Bank. See Implication. EXCHANGE, Defined, 161. EXECUTION OF DEEDS, 275-393. PEE SIMPLE, Defined, 547. How created, 547 and note. Conflicting clauses, 548 McCullock, 549 note, 550 Carl Lee. Upon limitation, 552 First Universalist Soc FEE TAIL, After possibilitv of issue extinct, 579. Defined, 557, 558. How converted into fee simple, 560 Ewing. INDEX 949 [The figures refer to pages] FEE TAILr-Continued, How created, 558, 559. Recognized in modern cases, 560 Ewing. Statute De Donis, 556. Under statutory modifications, 566 Dungan, 569 note. FEOFFMENT, Defined, 156. Necessity for, 156. Tortious, 4, 158. FINE, Defined, 160. FORCIBLE ENTRY, Rights of tenant upon, 636 Turner, 638 Hilary, 639 Pollen, 645 Reader, 652 Low, 657 note. FRAUDULENT CONVEYANCES, Voluntary conveyances where subsequent conveyances for value, 812 Doe, 820 Cooke. Purchaser for value, 825 note. GRANT, Defined, 162. HUSBAND'S INTEREST IN WIFE'S REALTY, After birth of issue, see Curtesy. Before birth of issue, 580 Montgomery. IMPLICATION, General, 466 Coppy, 467 Robins, 469 Palmer. Implied grant. Construction, 538 Weeks, 541 City of Battle Creek. Necessity, 469 Pinnington, 494 Brigham. Quasi easements that are apparent, 535 Butterworth. Continuous, 474 Polden, 526 Tooth, 527 Liquid Carbonic Co., 529 Adams. Necessai-y, 518 Buss, 526 Tooth. Implied reservation where necessity, 469 Pinnington, 494 Brigham, 491 Ray, 497 note, 500 Mancuso, 511 Brown. Reciprocal easements, 486. Simultaneous conveyances, 487 Phillips. JOINT TENANCY, Created how, 686, 690 Mustain, 692 Thornburg. Defined, 685, 686. Partition, 687. LAPSE OF TIME, Disabilities, 91 Doe. Effect of when coupled with possession, 19-43. Tacking possessions in defense, 24 Goody, 31 Shannon, 32 Harlan, 34 Sherin, 36 McNeely. In attack, 26 Carter. Prescription, 139 note. Privity, 36 McNeely, 39 Kldi, LEASE, Defined, 161. See Surrender. LIFE ESTATES, Created, 572. Defined, 570. For indefinite time, 575 Thompson. Life of lessee and others, 573 Rosse. Life of lessee and heir, 573 Amos. See Curtesy; Dower; Fee Tail. 950 INDEX [The figures refer to pages] LIGHTS, Easement of by implication, 4G9 Palmer, 491 Ray. LIS PENDENS, Doctrine of, 914 note. Record, of, 914 note. MODE OF CON^EYANCl!:, Common law, 156-232. Modern statutes, 268-275. Statute of Uses, 232-268. MONUMENTS, See Boundaries. NOTICE, See Record. PARTITION, Defined, 162. POSSESSION, Basis for ejectment, 11 Asher, 26 Carter. Compensation in eminent domain, 13 Perry. Taxation, 16 note. Effect of wrongful possession upon owner, 17 Sohier. For period of statute of limitations, 21 Hughes, 72 Dean. See Adverse Possession. PRESCRIPTION, Adverse user, 121 Pavey, 125 Barber, 128 Lechman. Character of rights subject to acquisition by, 112 Webb, 121 note. Continuity of user, 132 Lehigh V. R. Co, Intervening disabilities, 94 Wallace, 104 Lamb. Light and air, 111, 112, 117 Hubbard. Tacking, 139 note. TheoiT and development, 94 Wallace. Time period commences, 114 Sturges. Servient estate held by tenant, 109 Baxter. PRIORITIES, See Fraudulent Conveyances; Record, PRIVITY, See Lapse of Time. I'ROPERTY CONVEYED, See Boundaries; Exceptions and Reservations. PURCHASER FOR VALUE, See Fraudulent Conveyances ; Record. QUARANTINE, Widow's right of, 610 Wallls. RECORD, As notice in England, 827 Bedford, 827 Morecocfe. In United States, 837 Simonson. Necessity of as against purchaser from heir, 849 Youngblood. Creditors, 868 Holden. Grantee in quitclaim, 882 Marshall, 834 note, 885 Smith's Heirs, 88T Boynton, 892 note. Grantee of purchaser with notice, 852 Morse, 854 Woods. Purchasers for value, 877 Strong, S78 note, 880 Thomas. Purchasers on execution, 872 Sternberger. Notice instead of, 829 La Neve, 834 note. Knowledge of deed on record improperly, 909 Nordman. INDEX 951 [Tte figures refer to pagesl RECORD — Continued, Possession, 898 Galley, 901 note, 902 "Williamson, Recitals, 892 Moore, 893 Baker, 894 Patman. Of equitable title, 837 Simonson. Lis pendens, 914 note. Unacknowledged deed, 914 Sigoumey. Out of chain of title, 843 Losey, 845 Rankin, 854 Woods. Sufficiency of, 916-943. Incorrect; amount stated, 926 Frost, 927 Terrell, 929 Mangold. Index, 932 Prouty, 937 Mutual L. Ins. Co. Names of witnesses omitted, 916 Pringle. RELEASE, Defined, 187. REMAINDERS, 731-733. RESERVATION, See Exceptions and Reservations; Implication. REVERSIONS, 731-733. SEALING, Abolished, 278, Required, 275 Jackson. Sufficiency of, 278. SEISIN, Defined, 2. Importance of, 2, 7 note. Mystery of, 1. SIGNING OF DEEDS, 275. STATUTES, Enrolments, 247. Frauds, 157. Fraudulent conveyances, 810-812. Limitation, 19-21. Recording, 826, 834r-837. Uses, 236. STREAMS, See Boundaries. STREETS, See Boundaries. SUFFERANCE, Tenancy at, 636. SURRENDER, Defined, 188, 189. In fact by cancellation, 190 Lord Wai*d. Conditional, 191 Allen. In law. Acceptance of third party as tenant, 207 Thomas. Incorporeal property, 221 Lyon. New lease not creating interest intended, 195 Davison, 197 Zick, and note, 200 SchiefCelin. New lease to commence in futuro, 195 Ive. Reletting after abandonment, 209 Walls, 211 Gray, 217 Oldewurtel, 220 note. Yielding possession to landlord, 206 Whitehead. TACKING. See Lapse of Time. TAX TITLES, 155 note. 952 INDEX [The figures refer to pages] TENANCY BY ENTIRETIES, Created how, 6S9, 692 Thornburg, 698 Pegg, Defined, 689. See Concurrent Ownership. TENANTS IN COMMON, Created how, 687, 688, 698 Pegg. Defined, 687. See Concurrent Ownership. TORRENS SYSTEM, 941 note. TRUST, Use upon a use upheld as, 262 note. USES, Active, 266 lire, 268 note. After Statute of U.ses, 239-268. Bargain and sale, 236. Before Statute of Uses, 232-238. Covenant to stand seised, 236. Created how, 235, 236. Enforcement of, 233. Enrolments, Statute of, 247. Estates in, 234. Operation of Statute of Uses, 239 Green; 248 Lutwich. Personal property, 266 Ure. Raised in connection with common law conveyance, 239-246. Raised independently of common law conveyance, 247-261. Reasons for introduction of, 232. Resulting, 235, 240 Sbortridge, 241 Armstrong, 241 Van der Volgen. Shifting, 234. Springing, 2.34. Statute of, 236. Use upon a use, 261 Tyrrel, 262 Doe. WATERS, See Boundaries ; Accretion. WAYS OF NECESSITY, By implication, 469 Pinnington, 494 Brigham, 495 Dabney. WIFE'S INTEREST IN HUSBAND'S REALTY, See Dower. WILL, See Devise. WILL, ESTATE AT, Defined, ^34, 0:^5, 636. Determined by conveyance, 641 Curtis. When, &36 Ix^ighton. Where rent payable periodically, 642 Say. See Forcible Entry. YEAR TO YEAR, ESTATES FROM, Assignable, 657 Braythwaite, Entry under agreement for lease and payment of periodic rent, 657 Brayth* waite. Void parol agreement for lease providing for periodic rent, 665 Gris- wold. Void parol lease, 664 Clayton, 665 note. Holding over, 670 Right, 672 Ilerter, 675 Goldsborough, 677 King. Notice to quit, 650 Arltenz. Payment based on goods purchased, as periodic rent, 0G9 Lyons. INDEX 953^ [The figures refer to pages] YEAR TO YEAR, ESTATES FROM— Continued, Terms of, as contained in agreement for lease unexecuted, 660 Doe, 662 Coudert. When terminable, 657 Layton, 662 Coudert YEARS, ESTATES FOR, Created how, 628, 629. Cropping agreements as, 629 Hare, 630 Caswell, 631 SteeL Defined, 628. WX8T FUBLIBHING CO., FBINTBBB, BT. PAUL. UIMS. UC SOUTHERN REGIONAL LIBRARY FACILITY D 000 321 959 9 ''^^S^S:^